author: LANDAU, J.

text:
    GLADSTONE, SCHWARTZ, BAROFF AND BLUM v. SOOREN HOVHANNISSIAN
    (AC 17431)
    Landau, Sullivan and Kulawiz, Js.
    Argued December 9, 1998
    officially released May 4, 1999

      William S. Palmieri, for the appellant (defendant).

      Carla Ottaviano, for the appellee (plaintiff).
   Opinion

LANDAU, J.

This is an appeal by the defendant, Sooren Hovhannissian, from the judgment of the trial court, rendered after a jury verdict in favor of the plaintiff on the plaintiffs complaint and the defendant’s counterclaim. On appeal, the defendant claims that the trial court improperly (1) determined that his counterclaim, which sounded in legal malpractice, could not be based in both contract and tort and (2) failed to charge the jury on the question of the continued existence of an attorney-client relationship. We affirm the judgment of the trial court.

The following facts and procedural history are necessary for the resolution of this appeal. In 1991, the plaintiff commenced an action seeking payment for legal services performed on behalf of the defendant beginning in late 1987, early 1988. The defendant filed an answer, special defenses and an amended counterclaim. The operative counterclaim contained six counts alleging legal malpractice and a seventh count alleging a claim of abuse of process. In response, the plaintiff filed an answer denying the allegations in the counterclaim. The plaintiff also pleaded special defenses to each count of the counterclaim based on the applicable statute of limitations, to which the defendant subsequently responded with a general denial. During trial, the plaintiff moved for a directed verdict on the counterclaim. The trial court granted the plaintiffs motion and directed the verdict as to counts one, three, four, five, six and seven of the counterclaim.

The jury rendered general verdicts in favor of the plaintiff on the complaint and on count two of the counterclaim alleging legal malpractice, the only remaining count. The defendant filed a motion to set aside the verdict or, in the alternative, to grant a new trial, which was denied. The trial court rendered judgment for the plaintiff on the jury’s verdict. This appeal followed.

I

Before we address the merits of the defendant’s claims, we must first address the plaintiffs assertion that the general verdict rule applies in this case, precluding appellate review of the defendant’s claims. We are not persuaded.

“The general verdict rule provides that, where a jury returns a general verdict in favor of a party, and no party submits special interrogatories, an appellate court properly presumes that the jury found in favor of the prevailing party on every issue. . . . The rule applies whenever a verdict for one party could reasonably be rendered on one or more . . . distinct defenses. . . . O’Brikis v. Supermarkets General Corp., 34 Conn. App. 148, 151, 640 A.2d 165 (1994).” (Internal quotation marks omitted.) Carano v. Moomey, 51 Conn. App. 382, 386, 721 A.2d 1240 (1998).

“In Curry v. Burns, [225 Conn. 782, 801, 626 A.2d 719 (1993)], our Supreme Court limited the application of the general verdict rule to five categories: (1) denial of separate counts of a complaint; (2) denial of separate defenses pleaded as such; (3) denial of separate legal theories of recovery or defense pleaded in one count or defense, as the case maybe; (4) denial of a complaint and pleading of a special defense; and (5) denial of a specific defense, raised under a general denial, that had been asserted as the case was tried but that should have been specially pleaded.” (Internal quotation marks omitted.) Carano v. Moomey, supra, 51 Conn. App. 386.

The plaintiff argues that the general verdict rule applies in this case because the defendant filed a counterclaim and the plaintiff responded with a denial and special defenses, either of which could have been the basis for the juiy’s verdict as no interrogatories were submitted to the jury. At oral argument before this court, the defendant claims that the general verdict rule does not apply to cases, such as the present case, involving a single cause of action that is submitted to the jury. While we agree that the general verdict rule does not apply, we do not agree with the reasons set forth by the defendant.

In the present case, the trial court concluded that count two of the counterclaim, which involved a cause of action arising out of the plaintiffs advice and preparation of documents made in connection with legal services provided in late 1987, early 1988, pursuant to an agreement with the defendant, was the only viable claim to submit to the jury. The court farther concluded that count two involved an executed contract to provide legal services and, therefore, the six year statute of limitations applied rather than the three year statute of limitations set out in the plaintiffs special defense. The court stated that “[therefore, there is no need for me to charge on the statute of limitations nor will there be need for interrogatories,” presumably because the six year statute of limitations did not bar count two of the counterclaim.

Our review of the transcript in this matter reveals that neither party made any reference to the statute of limitations during closing arguments nor did the court instruct the jury on the statute of limitations special defense. It appears, therefore, that the statute of limitations could not have been a possible ground on which the jury reached its verdict. As such, the jury’s verdict must have been based on a finding that the defendant failed to prove his prima facie case of legal malpractice. Accordingly, under the facts of this case, we do not apply the general verdict rule.

II

We turn next to the defendant’s claims on appeal. The defendant first claims that the trial court improperly determined that the cause of action of legal malpractice may not sound in contract and in tort. We conclude that the record is inadequate for our review.

“It is incumbent upon the appellant to take the necessary steps to sustain its burden of providing an adequate record for appellate review. Practice Book § 4061 [now § 60-5]; Walton v. New Hartford, 223 Conn. 155, [164-65], 612 A.2d 1153 (1992). Indeed, several rules of practice aim to facilitate the process by which an appealing party ensures the adequacy of the record. See Practice Book § 4051 [now § 66-5] (Rectification of Appeal, Articulation), § 4053 [now § 66-6] (Motion for Review—In General), § 4054 [now § 66-7] (Motion for Review— Review of Motion for Rectification of Appeal or Articulation). These rules foster the basic policy that an appellate tribunal cannot render a decision without first fully understanding the disposition being appealed. State v. Hoeplinger, 27 Conn. App. 643, 647, 609 A.2d 1015, cert. denied, 223 Conn. 912, 612 A.2d 59 (1992).” State v. Rios, 30 Conn. App. 712, 715-16, 622 A.2d 618 (1993). “Our role is not to guess at possibilities, but to review claims based on a complete factual record developed by a trial court. . . . Without the necessary factual and legal conclusions furnished by the trial court . . . any decision made by us respecting [the defendant’s claims] would be entirely speculative.” (Internal quotation marks omitted.) Chase Manhattan Bank/City Trust v. AECO Elevator Co., 48 Conn. App. 605, 608-609, 710 A.2d 190 (1998).

On the basis of our review of the record before this court, we conclude that it is not clear that the trial court determined that the cause of action of legal malpractice could not sound in both contract and in tort. It is axiomatic that we do not decide issues of law in a vacuum. To review an alleged impropriety by the trial court, we must have before us evidence that is the factual predicate for the legal issue that the appellant asks us to consider. See Taylor v. American Thread Co., 200 Conn. 108, 110, 509 A.2d 512 (1986). The defendant’s failure to file a motion for articulation to obtain an elucidation of the trial court’s determination results in a record that is inadequate for our review. As such, we are left to surmise as to the conclusion reached by the trial court. Accordingly, we decline to review the defendant’s claim.

Ill

The defendant finally claims that the trial court improperly failed to charge the jury as to the continued existence of the attorney-client relationship. Specifically, the defendant claims that the statute of limitations for legal malpractice does not begin to rum until the attorney-client relationship concludes. Furthermore, the defendant claims that because the determination of when the relationship concludes is fact specific, the issue should have been submitted to the jury rather than summarily dismissed by the trial court. We conclude that the defendant has not preserved this claim for our review.

It is well established that generally this court is not required to review claims that were not properly preserved in the trial court. Practice Book § 60-5; O’Shea v. Mignone, 50 Conn. App. 577, 586-87, 719 A.2d 1176 (1998). Specifically, “[t]his court is not bound to review claims of error in jury instructions if the party raising the claim neither submitted a written request to charge nor excepted to the charge given by the trial court.” State v. Jones, 39 Conn. App. 563, 566-67, 665 A.2d 910, cert. denied, 235 Conn. 931, 667 A.2d 800 (1995); Practice Book § 42-16. Upon a review of the record before this court, we conclude that because the defendant failed to submit proposed jury instructions on this issue and never took an exception to the jury charge regarding this issue, the issue was not preserved, and we will not review it.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant noted at oral argument that this appeal is concerned only with the adverse decision on the counterclaim.

       In its brief, the plaintiff requests that this court, sua sponte, strike the facts contained in the defendant’s brief because the defendant has failed to reference “any portion of the transcript or documents throughout the voluminous statement of the facts in his brief.” While we do not in any way condone the defendant’s deviation from the rules of practice, we nevertheless choose to review this particular matter as the plaintiffs brief presents adequate references to the relevant portions of the record. See Nevers v. Van Zuilen, 47 Conn. App. 46, 48 n.4, 700 A.2d 726 (1997); see also Willow Springs Condominium Assn., Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 20-21, 717 A.2d 77 (1998) (noting noncompliance with requirement in Practice Book § 67-4 (d) as to brief statement of standard of review but proceeding with review).

       The plaintiff denied all allegations contained in the counterclaim except that portion of paragraph two of the first count that alleged that the plaintiff represented the defendant in his sale of certain real property.

       Specifically, the plaintiff pleaded that the action was barred by General Statutes § 52-581. Section 52-581 (a) provides: “No action founded upon any express contract or agreement which is not reduced to writing, or of which some note or memorandum is not made in writing and signed by the party to be charged therewith or his agent, shall be brought but within three years after the right of action accrues.”

       General Statutes § 52-576 (a) provides in relevant part: “No action for an account, or on any simple or implied contract, or on any contract in writing, shall be brought but within six years after the right of action accrues . .

       The court’s statements were, at best, ambiguous. The court appears to have stated that, under the circumstances of this case, the elements of a legal malpractice claim in contract or in tort were the same. Specifically, the court made the following statements during trial: “[Having read the law on legal malpractice, it points] out that the element for malpractice claims whether contract or tort are almost the same. That there is really no distinction but if you put a claim in contract . . . and tort the court has often opted for the lower statute of limitation. So anyway . . . there is a six year statute [of limitations] that applies to contract claims, not [a] three year statute. . . .So, you haven’t spelled out any differences between the claims. So, again, I don’t see any harm that you have suffered by not presenting the tort claims to the jury. ... Is not the obligation the same? Implied duty to competently represent .... In this case there’s no distinction . . . except there’s a longer statute of limitations for one claim as opposed to the other .... You gain nothing more by having the tort claim. At least you haven’t told me you gain anything more.”

       Practice Book § 60-5 provides in relevant part: “The court, shall not be bound to consider a claim unless it was distinctly raised at the trial . . . .”

       Practice Book § 42-16 provides: “An appellate court shall not be bound to consider error as to the giving of, or the failure to give, an instruction unless the matter is covered by a written request to charge or exception has been taken by the party appealing immediately after the charge is delivered. Counsel taking the exception shall state distinctly the matter objected to and the ground of exception. The exception shall be 1 alten out of the hearing of the jury.”


source: Caselaw Access Project

author: SCHALLER, J.

license: Public Domain

text:
    MARK A. SHIFFRIN, COMMISSIONER OF CONSUMER PROTECTION v. I.V. SERVICES OF AMERICA, INC.
    (AC 17390)
    Schaller, Sullivan and Kulawiz, Js.

      Argued December 10, 1998
    officially released May 4, 1999

      Francis A. Miniter, for the appellant (defendant).

      Roger F. Reynolds, assistant attorney general, with whom were Gary Hawes, assistant attorney general, and, on the brief, Richard Blumenthal, attorney general, for the appellant (plaintiff).
   Opinion

SCHALLER, J.

The plaintiff, Mark A. Shiffrin, the commissioner of consumer protection (commissioner), served an investigative demand on the defendant I.V. Services of America, Inc., pursuant to General Statutes § 42-1 lOd (c). The defendant appeals from an order of the trial court denying its motion for a protective order in response to the investigative demand.

The defendant claims that the trial court improperly denied its motion for a protective order because it (1) did not apply properly the pharmacist-customer privilege of General Statutes § 20-626, (2) failed to protect the privacy rights of AIDS and HIV positive patients as required by General Statutes § 19a-583 and Doe v. Marselle, 236 Conn. 845, 675 A.2d 835 (1996), and (3) violated the defendant’s due process rights under the federal and state constitutions. We affirm the order of the trial court.

On August 28, 1996, the commissioner, pursuant to § 42-1 lOd (c), served an investigative demand on the defendant, a pharmacy in the state of Connecticut. The demand was issued in connection with an investigation into allegations that the defendant had violated the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110aet. seq., by billing consumers for medical equipment and services after representing to them that their insurance companies would be billed and by unfairly and deceptively inflating prices on prescription medications.

The demand required, inter aha, that the defendant produce the identity of its customers and the billing records of customers from whom the defendant had attempted to collect money. The defendant answered some of the commissioner’s interrogatories, but refused to answer interrogatories seven and eight and document request two. The commissioner subsequently filed a motion for an order requiring compliance. The defendant then filed a motion for a protective order. The trial court heard oral argument on the motions and allowed the parties to submit supplemental briefs. The trial court denied the defendant’s motion and issued the following order: “I.V. Services of America, Inc., shall comply with and provide answers to Interrogatories 7 and 8 of the Civil Investigative Demand issued by [the commissioner] . . . pursuant to the confidentiality agreement drafted by [the commissioner] and appended to its second supplemental memorandum dated March 17, 1997.

“However, should any documents [the defendant] is required to disclose pursuant to Request for Production Number 2 contain specific references to a person’s physical or mental condition, such references may be redacted prior to such documents being produced.” This appeal followed.

I

The defendant first claims that it was not required to disclose the information requested in the civil investigative demand because (1) it was privileged information under General Statutes § 20-626 (a) and (2) the commissioner was not entitled to the information under the exceptions found in § 20-626 (b).

A

The defendant claims first that § 20-626 (a), which provides in relevant part that “[n]o pharmacist . . . shall reveal any records or information,” bars the commissioner from obtaining the information requested under the demand. We disagree.

We first note that there is no general pharmacist-customer privilege recognized in Connecticut. The only privilege is that provided for by § 20-626 (a), which is limited to “records or information concerning the nature of pharmaceutical services rendered . . . .” (Emphasis added.) Determining whether the requested information falls within the protections of a statute is a matter of statutory construction, which presents a question of law requiring plenary review. Lopiano v. Lopiano, 247 Conn. 356, 363, 752 A.2d 1000 (1998). “A primary rule of statutory construction is that when the words of a statute are plain and unambiguous they should be given full effect. American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 193, 530 A.2d 171 (1987).” State v. Jones, 51 Conn. App. 126, 137, 721 A.2d 903 (1998), cert. denied, 247 Conn. 958, 723 A.2d 814 (1999).

The plain language of § 20-626 reveals that the legislature intended to protect information concerning the nature of a customer’s treatment, i.e., what symptoms certain drugs were meant to combat, what drugs were prescribed, how often drugs were prescribed and by which physician. There is no indication from the unambiguous language that the billing practices of the defendant fall within the penumbra of the phrase “the nature of pharmaceutical services rendered.”

The commissioner clearly sought to avoid infringing on any customers’ confidentiality. Rather, the commissioner sought only the information relating to the defendant’s alleged unfair or deceptive trade practices. Furthermore, the trial court allowed the defendant to redact any information that might disclose a customer’s physical or mental condition. We are not persuaded that the information sought in the investigative demand is protected under § 20-626.

B

Even if we assume that the information requested was protected by § 20-626 (a), the defendant claims that the commissioner is not entitled to the information requested in the demand pursuant to the exceptions in § 20-626 (b). The defendant claims that (1) § 20-626 (b) is permissive and not mandatory and (2) the commissioner is not entitled to the requested discovery because the commissioner is not a “governmental agency with statutory authority to review or obtain such information” under § 20-626 (b) (5) and the commissioner’s civil investigative demand is not equivalent to a subpoena. We disagree with the defendant’s interpretation.

1

The defendant claims that, because § 20-626 (b) provides that “a pharmacist or pharmacy may provide pharmacy records or information” (emphasis added), it is not required to comply with the commissioner’s investigative demand. We disagree.

This issue also involves statutory construction warranting plenary review. Lopiano v. Lopiano, supra, 247 Conn. 363. “[Our Supreme Court has] consistently held that ‘may’ is directory rather than mandatory. . . . The word ‘may,’ unless the context in which it is employed requires otherwise, ordinarily does not connote a command. Rather, the word generally imports permissive conduct and the conferral of discretion.” (Citation omitted.) Commission on Human Rights & Opportunities v. Truelove & Maclean, Inc., 238 Conn. 337, 349, 680 A.2d 1261 (1996). While the legislature used both “shall” and “may” in the same section, connoting that it was aware of the different meanings given the two words, the defendant’s interpretation cannot be adopted. The defendant’s argument fails to consider that § 20-626 (b) (6) permits a pharmacy to disclose information when such information is sought pursuant to a subpoena. “A subpoena is a method for compelling the attendance of a witness [or documents] . . . .” Commissioner of Welfare v. Rynecki, 37 Conn. Sup. 560, 565, 426 A.2d 1329 (1980). When refusing to answer a subpoena, a witness or party can be subjected to judicial sanctions. It is unlikely that the legislature would have used the terms may and subpoena in § 20-626 (b) to give a party faced with a subpoena the option of not answering it.

The legislature’s enactment of subsection (b) shows that it never intended the privilege of subsection (a) to be absolute. Subsection (b) clearly shows that the legislature envisioned situations where the disclosure of pharmaceutical information would be permitted. The propose of the word may appears to be to protect a pharmacy from civil liability when it does disclose confidential information in those excepted circumstances of § 20-626 (b). We cannot accept the defendant’s view that, because the legislature used the word shall in subsection (a) to mandate nondisclosure of certain information and the word may in subsection (b) to allow disclosure in certain limited situations, the defendant need not disclose in those situations if it feels so inclined.

2

The defendant claims next that the commissioner of consumer protection is not a “governmental agency with statutory authority to review or obtain such information” under § 20-626 (b) (5). The defendant’s claim is without merit.

Section 42-1 lOd provides the authority for the commissioner to review the defendant’s records if the commissioner suspects that the defendant is utilizing an unfair or deceptive trade practice. At oral argument, the defendant attempted to distinguish the commissioner from the commission of pharmacy. The defendant’s claim that the commissioner of consumer protection is not responsible for the regulation of pharmacies lacks merit.

Our review of chapter 400j of the General Statutes, the pharmacy statutes, clearly shows that the legislature intended both agencies to regulate the pharmaceutical industry in this state. In fact, “[t]he Commissioner of Consumer Protection shall exercise general supervision over the operations of the Commission of Pharmacy pursuant to sections 20-570 to 20-625, inclusive.” General Statutes § 20-574. The commissioner has the statutory authority to review the defendant’s billing records.

3

The defendant next claims that the commissioner’s issuance of a civil investigative demand is not equivalent to the issuance of a subpoena under § 20-626 (b) (6). We disagree.

The defendant’s position is contrary to the statutory language of CUTPA. “It is the intention of the legislature that this chapter be remedial and be so construed.” General Statutes § 42-110b (d). “[B]ecause CUTPA is a self-avowed ‘remedial’ measure ... it is construed liberally in an effort to effectuate its public policy goals.” (Citation omitted; internal quotation marks omitted.) Associated Investment Co. Ltd. Partnership v. Williams Associates IV, 230 Conn. 148, 158, 645 A.2d 505 (1994).

General Statutes § 42-110k uses the disjunctive “or” when discussing subpoenas and investigative demands and the commissioner’s enforcement powers. The use of “or” by the legislature clearly indicates that the commissioner has a choice of discovery tools available to him. Because CUTPA must be given a liberal interpretation, the fact that the commissioner issues an investigative demand instead of a subpoena cannot be held against him. Accordingly, we conclude that the trial court correctly held that the investigative demand was adequate under § 20-626 (b) (6). Therefore, assuming that the information requested by the commissioner is protected by § 20-626, we conclude that the commissioner has the right to review the defendant’s billing records under either subdivision (5) or (6) of § 20-626 (b).

II

The defendant next claims that the privacy rights accorded to patients, specifically those who are HIV positive and those who have AIDS, would be violated by disclosing the information requested in the investigative demand. We disagree.

General Statutes § 19a-583 (a) provides in relevant part: “No person who obtains confidential HIV-related information may disclose or be compelled to disclose such information . . . .” Our Supreme Court thoroughly discussed the policy behind the AIDS nondisclosure statute in Doe v. Marselle, supra, 236 Conn. 845.

“The AIDS statute was designed and intended to combat the AIDS epidemic, beginning with protecting confidentiality. ... As one of the bill’s sponsors, Representative Benjamin N. DeZinno, Jr., explained, the bill was intended to ‘protect the confidentiality of data related to AIDS . . . .’He explained that in order to ‘wipe out or hope to wipe [out] this horrible epidemic disease in our lifetime . . . [w]e have to start with protecting the confidentiality . . . [b]ecause people will not step forward for testing and treatment of AIDS unless they know that a positive result will not become public information. I think that’s very important. Now, unfortunately, there is widespread discrimination against the AIDS victim, and many people would rather [forgo] treatment, than risk being stigmatized.’ ” (Citations omitted.) Id., 852. “[T]he drafters of this legislation ‘crafted the bill very carefully to give protection while also enabling those who care for people with AIDS and HIV infection to have access to information needed for the patient’s care.’ Conn. Joint Standing Committee Hearings, Public Health, Pt. 3, 1989 Sess., p. 767.” Doe v. Marselle, supra, 236 Conn. 858.

“The legislature’s concern for discrimination against people with AIDS is well founded. In a 1993 poll, 35.7 percent of the respondents said they were ‘afraid’ of people with AIDS, 27.7 percent were ‘disgusted’ and 27.1 percent were ‘angry.’ . . . More than one in five Americans . . . would avoid an office job if they had to work with a man with AIDS, and nearly one half . . . would avoid a neighborhood grocery store if the owner had AIDS.” (Citation omitted.) Doe v. Marselle, supra, 236 Conn. 858 n.14.

The defendant claims that, because certain drugs are connected with the treatment of conditions that are secondary to AIDS, disclosure of the billing information would violate the statute. The trial court order addressed just that concern by allowing the defendant to redact certain information: “[S]hould any documents [the defendant] is required to disclose pursuant to Request for Production Number 2 contain specific references to a person’s physical or mental condition, such references may be redacted prior to such documents being produced.”

We are cognizant of the legislature’s concerns and are sensitive to the social ills that fall upon AIDS and HIV positive patients. Because the trial court’s order allowed for redaction, our decision affirming that order will not broaden the scope of nonconfidential information. Nor will this conclusion cause the purpose of § 19a-583 to be eroded by case law. The trial court’s order adequately protects the confidentiality rights of AIDS and HIV positive patients under § 19a-583.

Ill

Finally, the defendant claims that its due process rights under the state and federal constitutions were violated because the commissioner lacked probable cause to issue the civil investigative demand. Because the defendant did not provide an adequate record we decline to review this issue.

“It is the responsibility of the appellant to provide an adequate record for review as provided in Section 61-10.” Practice Book § 60-5. We have frequently declined to review cases where an adequate record for review is lacking. Chase Manhattan Bank/City Trust v. AECO Elevator Co., 48 Conn. App. 605, 609, 710 A.2d 190 (1998). “Our role is not to guess at possibilities, but to review claims based on a complete factual record developed by a trial court. . . . Without the necessary factual and legal conclusions furnished by the trial court . . . any decision made by us respecting [the defendant’s claims] would be entirely speculative.” (Internal quotation marks omitted.) Id., 608-609.

In the present case, while both parties briefed the issue of whether the commissioner was required to have probable cause to issue the investigative demand, the issue was not addressed in the trial court’s memorandum of decision. The defendant failed to file a motion for articulation pursuant to Practice Book § 66-5. Because we have not been provided with the trial court’s decision on this issue, we cannot reach the issue of whether the defendant was denied its right to due process.

The order of the trial court is affirmed.

In this opinion the other judges concurred.

       General Statutes § 42-1 lOd provides in relevant part: “(a) For the purposes of this chapter the commissioner shall have the power to order an investigation and examination to be made. In addition to other powers conferred upon the commissioner by this chapter, the commissioner or his authorized representatives may issue subpoenas to any person involved in any matter under investigation and examination, administer an oath or affirmation to any person, and conduct hearings in aid of any investigation or examination, provided none of the powers conferred by this chapter shall be used for the purpose of compelling any natural person to furnish testimony or evidence which might tend to incriminate him or subject him to a penalty or forfeiture.
      “(b) Said commissioner or his authorized representatives shall have the right to . . . (4) subpoena documentary material relating to such investigation; and (5) have access to, for the purpose of examination, documentary material and the right to copy such documentary material of any person being investigated or proceeded against. The commissioner or his authorized representatives shall have power to require by subpoena the attendance and testimony of witnesses and the production of all such documentary material relating to any matter under investigation.
      “(c) In addition to other powers conferred upon the commissioner, said commissioner may execute in writing and cause to be served by certified mail an investigative demand upon any person suspected of using, having used or about to use any method, act or practice declared by section 42-110b to be unlawful or upon any person from whom said commissioner wants assurance that section 42-110b has not, is not or will not be violated. Such investigative demand shall contain a description of the method, act or practice under investigation, provide a reasonable time for compliance, and require such person to furnish under oath or otherwise, as may be specified in said demand, a report, in writing setting forth relevant facts or circumstances together with documentary material. . . .”

       The defendant argues in its brief that the trial court’s denial of its motion for protective order is a final judgment from which it can properly appeal. The commissioner does not contest that there is a final judgment. “An otherwise interlocutory order is appealable in two circumstances: (1) where the order or action terminates a separate and distinct proceeding, or (2) where the order or action so concludes the rights of the parties that further proceedings cannot affect them.” State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983). We conclude that the order requiring the defendant to comply with the agency’s demand terminated an independent proceeding to obtain information and, therefore, is an appealable final judgment. See Berger v. Cuomo, 230 Conn. 1, 644 A.2d 333 (1994); see also Heslin v. Connecticut Law Clinic of Trantolo & Trantolo, 190 Conn. 510, 461 A.2d 938 (1983) (Supreme Court reviewed commissioner’s appeal taken from trial court’s dismissal of petition requiring defendant to comply with investigative demand pursuant to § 42-110d).

       Interrogatory seven states: “For the period January 1, 1990 through the date of your response to the interrogatory, provide a listing of names and addresses of all customers to whom you have sold any products or services. Your answer should include each customer’s name, last known address and last known telephone number.”
      Interrogatory eight states: “For the period January 1, 1990 through the date of your response to this interrogatory, provide a listing of each of your accounts where you have sought to collect any amount of money directly from a customer, as opposed to accounts where you sought to collect money exclusively from the customer’s insurance company. Your answer should include the name of the customer, the amount billed to the customer, the last known address of the customer and the last known telephone number of the customer.”
      Document request two states: “Please provide any documents relating to the billing of any of your accounts where you have sought to collect any amount of money directly from a customer, as opposed to accounts where you sought to collect money exclusively from the customer’s insurance company.”

       General Statutes § 20-626 provides in relevant part: “(a) No pharmacist or pharmacy shall reveal any records or information concerning the nature of pharmaceutical services rendered to a patient without the oral or written consent of the patient or the patient’s agent. If a patient or a patient’s agent gives oral consent to release records or information, the pharmacist shall promptly record, in writing or in electronic data base form, the oral consent by listing the patient’s name, the name of the patient’s agent, if applicable, the date and the nature of the records or information released.
      “(b) Notwithstanding subsection (a) of this section, a pharmacist or pharmacy may provide pharmacy records or information to the following . . . (5) any governmental agency with statutory authority to review or obtain such information; (6) any individual, the state or federal government or any agency thereof or court pursuant to a subpoena (Emphasis added.)

       The defendant claimed at oral argument that the privacy rights of patients in general would not be protected because the commissioner is required by § 42-110d (f) to make public “all records concerning the investigation of any alleged violation” within eighteen months of the date of the filing of the initial complaint. Because General Statutes § 1-19 (a) requires the commissioner to make available its public documents to those who want to examine them, the defendant claims that there is no way for the commissioner to guarantee the customers’ privacy. We are not persuaded.
      General Statutes (Rev. to 1997) § 1-19 (b) provides in relevant part: “Nothing in [section] . . . 1-19 . . . shall be construed to require disclosure of ... (2) personnel or medical files and similar files the disclosure of which would constitute an invasion of personal privacy . . . .” (Emphasis added.) As we have noted, the trial court appropriately allowed the defendant to redact any information regarding a customer’s physical or mental condition. Given the trial court’s redaction order, it is clear that any information that the defendant possesses pertaining to one of its customers’ physical or mental condition is not discoverable under §§ 42-110d (f) or 1-19 (b) (2).

       We note, however, that § 42-1 lOd does not require the commissioner to have probable cause to believe that a party is engaged in unfair or deceptive trade practices. The statutory language is clear and unambiguous. The commissioner may issue an investigative demand on “any person suspected of using, having used or about to use any method, act or practice declared by section 42-110b to be unlawful . . . .” General Statutes § 42-llOd (c). “If the language of a statute is plain and unambiguous, we need look no further than the words actually used because we assume that the language expresses the legislature’s intent.” (Internal quotation marks omitted.) Hutchinson v. Andover, 49 Conn. App. 781, 785, 715 A.2d 831 (1998).
      The legislature has used the phrase “probable cause” in many different statutes. The legislature, therefore, is presumed to be aware of its meaning. Because the legislature did not use “probable cause” and, instead, chose “suspected,” it is apparent that the legislature did not intend to require the commissioner to have probable cause before issuing a civil investigative demand.


text:
    CRYSTAL LAKE CLEAN WATER PRESERVATION ASSOCIATION v. TOWN OF ELLINGTON
    (AC 17577)
    Schaller, Hennessy and Sullivan, Js.
    Argued December 3, 1998
    officially released May 4, 1999

      Robert C. DuBeau, for the appellant (defendant).

      James W. Sherman, for the appellee (plaintiff).
   Opinion

SCHALLER, J.

The defendant town of Ellington appeals from the judgment of the trial court granting injunctive relief in favor of the plaintiff Crystal Lake Clean Water Preservation Association. On appeal, the defendant claims that the trial court improperly rendered summary judgment and granted injunctive relief restraining the defendant from collecting property taxes on flowage rights that were assessed for the tax years 1987 through 1993. We reverse the judgment of the trial court.

The following facts are not in dispute. On May 18, 1995, the plaintiff purchased flowage rights located in the town of Ellington. The flowage rights allow the plaintiff to raise and lower a body of water known as Crystal Lake to a fixed level by the operation of a dam that the plaintiff operates located downstream in the town of Stafford. The dam is owned by the plaintiff and is not operated by water power. The plaintiff is not the fee owner of the land that the flowage rights encumber, but holds instead an easement on the land. From October 1, 1987, through October 1, 1996, the defendant assessed and levied taxes on those flowage rights.

On July 17, 1995, the plaintiff brought this action, consisting of three counts, to challenge the assessment of taxes on the flowage rights for the 1994 tax year. In count one, the plaintiff alleged excessive valuation. In count two, the plaintiff alleged excessive valuation and also alleged that the flowage rights are not taxable in the town of Ellington under General Statutes § 12-119. In count three, the plaintiff claimed a wrongful taking of property in violation of General Statutes §§ 48-6 (a) and 48-12. On February 12, 1997, the plaintiff moved for summary judgment on counts one and two. On April 3,1997, the defendant moved for summary judgment on counts one, two and three, and opposed the plaintiffs motion for summary judgment on counts one and two. On May 16, 1997, the plaintiff amended its complaint to include the 1995 and 1996 tax year's. The plaintiff also added a fourth count, challenging the assessment of tax from October 1, 1987, through October 1, 1993. On June 20, 1997, the trial court, by written memorandum, determined on the first and second counts that the plaintiff was the owner of nontaxable flowage rights and granted its motion for summary judgment, ordering injunctive relief. As to count three, the trial court determined that there was no taking of the plaintiffs property pursuant to §§ 48-6 and 48-12 and granted the defendant’s motion for summary judgment.

Thereafter, the plaintiff moved for summary judgment and injunctive relief on the fourth count of the amended complaint. At the hearing on the plaintiffs motion for summary judgment, the defendant relied on its special defense that the plaintiff did not appeal the assessment within the one year limitation period prescribed in § 12-119. On August 18, 1997, the trial court, by oral decision, granted the plaintiffs motion for summary judgment and ordered injunctive relief in favor of the plaintiff with respect to count four. The court ordered the assessments removed from the tax lists for the years 1987 through 1993. Referring to its prior decision on counts one and two that the plaintiff was an owner of nontaxable flowage rights, the trial court concluded that § 12-119, in particular the one year statute of limitations, was not applicable to the plaintiff because it did not apply to the owners or lessees of flowage rights. This appeal followed.

The defendant does not challenge the determination that the flowage rights are nontaxable. Instead, the defendant claims that the plaintiff did not properly challenge the tax assessments pursuant to § 12-119. The defendant argues that because the plaintiff did not appeal from the assessment of taxes on the flowage rights in a timely manner, the trial court improperly rendered summary judgment and granted injunctive relief in favor of the plaintiff. We agree.

Our standard of review of a trial court’s decision to grant a motion for summary judgment is well established. Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Miller v. United Technologies Corp., 233 Conn. 732, 744-45, 660 A.2d 810 (1995). “In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.” (Internal quotation marks omitted.) Rosario v. Hasak, 50 Conn. App. 632, 637, 718 A.2d 505 (1998). “The test is whether a party would be entitled to a directed verdict on the same facts.” (Internal quotation marks omitted.) General Accident Ins. Co. of America v. Powers, Bolles, Houlihan & Hartline, Inc., 50 Conn. App. 701, 707, 719 A.2d 77 (1998), cert. granted on other grounds, 247 Conn. 954, 723 A.2d 810 (1999).

“On appeal, [w]e must decide whether the trial court erred in determining that there was no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Internal quotation marks omitted.) Avon Meadow Condominium Assn., Inc. v. Bank of Boston Connecticut, 50 Conn. App. 688, 693, 719 A.2d 66, cert. denied, 247 Conn. 946, 723 A.2d 320 (1998). Because the trial court rendered judgment for the plaintiff as a matter of law, our review is plenary and “we must determine whether the legal conclusions reached by the trial court are legally and logically correct and whether they find support in the facts set out in the memorandum of decision of the trial court.” Zachs v. Groppo, 207 Conn. 683, 689, 542 A.2d 1145 (1988). “On appeal, however, the burden is on the opposing party to demonstrate that the trial court’s decision to grant the movant’s summary judgment motion was clearly erroneous.” 2830 Whitney Avenue Corp. v. Heritage Canal Development Associates, Inc., 33 Conn. App. 563, 567, 636 A.2d 1377 (1994).

We are satisfied that no genuine issue of material fact exists and the defendant makes no claim to the contrary. In its affidavit, the plaintiff asserts that it is the owner of the flowage rights and that it is not the fee owner of the land over which the water flowed. The defendant, in its affidavit, asserts only that it has assessed taxes on the plaintiffs interest, but does not assert that the plaintiff is the fee owner of land. Furthermore, the trial court, with regard to counts one and two, found that the plaintiff is the owner of flowage rights only. The defendant contends on appeal that § 12-119 bars the plaintiffs claim because it was not brought “within one year from the date as of which the property was last evaluated for the purposes of taxation . . . .” General Statutes § 12-119. The plaintiff argues that the trial court properly determined that § 12-119 applies only to the owners of land, and, therefore, the statute and its one year statute of limitations does not apply in this case.

Section 12-119 provides owners and lessees of property with a remedy to challenge a municipality’s wrongful assessment of tax. Wilson v. Kelley, 224 Conn. 110, 118-19, 617 A.2d 433 (1992). Section 12-119 “embraces situations where a tax has been laid on property not taxable in the municipality where it is situated . . . .” (Internal quotation marks omitted.) Id., 119. The pertinent question, therefore, is whether the statute’s use of the term “property” includes the plaintiffs flowage rights.

In the present case, the assessed interest consists of the plaintiffs flowage rights. “The right of flowage is, after all, only an easement.” Great Hill Lake, Inc. v. Caswell, 126 Conn. 364, 367, 11 A.2d 396 (1940). Therefore, the plaintiff is the owner of an easement that “merely authorizes the flooding, by an owner of a riparian dominant tenement, of land of the servient tenement which he does not himself own and therefore would otherwise have no right to overflow.” Gager v. Carlson, 146 Conn. 288, 295, 150 A.2d 302 (1959).

We are not persuaded by the plaintiffs principal contention that § 12-119 pertains only to owners of land and, therefore, does not apply to the owner of an easement. It is clear that § 12-119 is the correct procedure for an aggrieved taxpayer to challenge the improper assessment of an easement. See Hartford Electric Light Co. v. Wethersfield, 165 Conn. 211, 213 n.1, 332 A.2d 83 (1973); Connecticut Light & Power Co. v. Oxford, 101 Conn. 383, 389, 126 A. 1 (1924). In Hartford Electric Light Co., our Supreme Court allowed a § 12-119 claim challenging the taxability of an easement that allowed the plaintiff to erect and maintain electrical power lines. In response to the defendant’s abandoned claim that the trial court had no jurisdiction to entertain the action under § 12-119, the court stated that the statute is “decidedly the correct procedure for an aggrieved taxpayer to invoke where the questioned assessment is claimed to be illegal.” Hartford Electric Light Co. v. Wethersfield, supra, 213 n.1. Furthermore, in Connecticut Light & Power Co., our Supreme Court allowed a § 12-119 action to challenge the assessment of tax on an easement that was employed by the plaintiff to transport electricity over land via electric cables. In discussing the applicability of § 12-119, the court stated that the statute is to be “applied to any existing, unpaid tax . . . .” Connecticut Light & Power Co. v. Oxford, supra, 390. In light of the above cases, it is clear that the remedy provided by § 12-119 is not limited to owners of land, but is also the remedy prescribed for taxpayers to challenge the illegal assessment of an easement. The plaintiffs right of flowage is an easement; therefore, § 12-119 is the statutory remedy for challenging the assessment of the plaintiffs flowage rights.

Because § 12-119 is the proper remedy for the owners of flowage rights to challenge an illegal tax assessment, the one year limitation period applies. The statute requires that claims be brought “within one year from the date as of which the property was last evaluated for purposes of taxation . . . .” General Statutes § 12-119. In the present case, the plaintiff did not challenge the defendant’s assessment of the flowage rights from 1987 through 1993 until May 16,1997, well after the one year limitation period had expired. Because this action was not brought within the one year statutoiy period, the plaintiff is precluded from bringing this present action under § 12-119.

Absent the remedy of § 12-119, a taxpayer may, in certain situations, assert the statute’s underlying common-law action of assumpsit. Norwich v. Lebanon, 200 Conn. 697, 710, 513 A.2d 77 (1986); Connecticut Light & Power Co. v. Oxford, supra, 101 Conn. 391-92. It is well settled that § 12-119 codified the then existing common-law right and remedy of assumpsit that allowed a taxpayer to challenge an illegally assessed tax. Wilson v. Kelley, supra, 224 Conn. 123; Norwich v. Lebanon, supra, 710; L. G. DeFelice & Son, Inc. v. Wethersfield, 167 Conn. 509, 513, 356 A.2d 144 (1975); Connecticut Light & Power Co. v. Oxford, supra, 391-92. Section 12-119 expressly provides that its remedy is “in addition to the other remedies provided by law.” General Statutes § 12-119. The term “other remedies” refers not only to the alternative procedure of General Statutes § 12-lll, but also to the common-law remedy of assumpsit. Norwich v. Lebanon, supra, 710; Connecticut Light & Power Co. v. Oxford, supra, 391-92.

In the present case, however, the plaintiff is precluded from bringing an action under the common-law writ of assumpsit. In Norwich, our Supreme Court held that a taxpayer may not bring an action of assumpsit in an attempt to circumvent the time restraints of § 12-119 if it would undermine the puipose of the statute. Norwich v. Lebanon, supra, 200 Conn. 711. In Norwich, the plaintiff brought an assumpsit action to challenge the defendant’s assessment of certain property well after the one year limitation period provided by § 12-119. After noting that § 12-119 was the proper remedy for the plaintiff to challenge the assessment, our Supreme Court stated that “where a statute has established a procedure to redress a particular wrong a person must follow the specified remedy and may not institute a proceeding that might have been permissible in the absence of such a statutory procedure.” Id., 708. The purpose of the one year limitation is to promote the prompt resolution of assessment disputes; id., 712; and “to prevent delays in the ultimate determination of the amounts a municipality can collect as taxes.” Cohn v. Hartford, 130 Conn. 699, 702, 37 A.2d 237 (1944). In the present case, allowing the plaintiff to bring an assumpsit action would undermine the purpose of § 12-119 because it would prolong the resolution of an assessment dispute and would delay a municipality’s determination of expected tax proceeds. Because the plaintiff failed to comply with the statutory remedy, it cannot now bring an action under the common-law claim of assumpsit and circumvent the purpose or the one year limitation of § 12-119. Norwich v. Lebanon, supra, 712.

The plaintiff was not entitled to judgment as a matter of law because it failed to bring the claim within the prescribed time period of § 12-119. The trial court, therefore, improperly granted the plaintiff’s motion for summary judgment on count four. In view of our determination that summary judgment was improper in this case, the issuance of an injunction ordering the removal of the tax assessments from 1987 through 1993 was improper because there is no basis for relief in favor of the plaintiff.

The judgment is reversed in part and the case is remanded with direction to deny the plaintiffs motion for summary judgment as to count four and for further proceedings according to law.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1995) § 12-117a provides in relevant part that “any person, including any lessee of real property whose lease has been recorded as provided in section 47-19 and who is bound under the terms of his lease to pay real property taxes, claiming to be aggrieved by the action of the board of tax review in any town or city with respect to the assessment list for the assessment year commencing October 1, 1989, October 1, 1990, October 1, 1991, October 1, 1992, October 1, 1993, or October 1, 1994, may, within two months from the time of such action, make application, in the nature of an appeal therefrom, to the superior court for the judicial district in which such town or city is situated, which shall be accompanied by a citation to such town or city to appear before said court. ...”

       General Statutes § 12-119 provides in relevant part: “When it is claimed that a tax has been laid on property not taxable in the town or city in whose tax list such property was set . . . the owner thereof or any lessee thereof whose lease has been recorded as provided in section 47-19 and who is bound under the terms of his lease to pay real property taxes, prior to the payment of such tax, may, in addition to the other remedies provided by law, make application for relief to the superior court for the judicial district in which such town or city is situated. Such application may be made within one year from the date as of which the property was last evaluated for purposes of taxation . . . .”

       General Statutes § 48-6 (a) provides: “Any municipal corporation having the right to purchase real property for its municipal purposes which has, in accordance with its charter or the general statutes, voted to purchase the same shall have power to take or acquire such real property, within the corporate limits of such municipal corporation, and if such municipal corporation cannot agree with any owner upon the amount to be paid for any real property thus taken, it shall proceed in the manner provided by section 48-12 within six months after such vote or such vote shall be void.”

         General Statutes § 48-12 provides: “The procedure for condemning land or other property for any of the purposes specified in sections 48-3, 48-6, 48-8 and 48-9, if those desiring to take such property cannot agree with the owner upon the amount to be paid him for any property thus taken, shall be as follows: The Comptroller in the name of the state, any town, municipal corporation or school district, or the trustees or directors of any state institution in the name of the state, shall proceed in the same manner specified for redevelopment agencies in accordance with sections 8-128, 8-129, 8-129a, 8-130, 8-131, 8-132, 8-132a and 8-133.”

       These taxes, including interest and lien fees, now total $21,404.43.

       The trial court did not address the fourth count in its June 20, 1997 memorandum of decision because the plaintiff had not yet moved for summary judgment on that count

       We note that the record does not contain either a written memorandum of decision or a transcribed copy of the oral decision, signed by the court, with regard to the trial court’s decision granting the plaintiffs motion for summary judgment on count four. See Practice Book § 64-1. “The duty to provide [the Appellate Court] with a record adequate for review rests with the appellant.” Chase Manhattan Bank/City Trust v. AECO Elevator Co., 48 Conn. App. 605, 607, 710 A.2d 190 (1998); see also Practice Book § 61-10. This court has declined to review claims where the appellant has failed to provide the court with an adequate record for review. Chase Manhattan Bank/City Trust v. AECO Elevator Co., supra, 609; Emigrant Savings Bank v. Erickson, 46 Conn. App. 51, 54, 696 A.2d 1057, cert. denied, 243 Conn. 921, 701 A.2d 341 (1997). We review the defendant’s claim, however, because the unsigned transcript does reveal the basis of the trial court’s findings.

       We note that § 12-119 also applies to “claims that assessments are (a) manifestly excessive and (b) . . . could not have been arrived at except by disregarding the provisions of the statutes for determining the valuation of the property.” (Internal quotation marks omitted.) Wilson v. Kelley, supra, 224 Conn. 119.

       General Statutes § 12-111 provides in relevant part: “Any person, including any lessee of real property whose lease has been recorded as provided in section 47-19 and who is bound under the terms of his lease to pay real property taxes and any person to whom title to such property has been transferred since the assessment date, claiming to be aggrieved by the doings of the assessors of such town may appeal therefrom to the board of assessment appeals. . .


text:
    DAMARIS CARDONA v. GERVACIO NEGRON
    (AC 17700)
    Foti, Landau and Dupont, Js.
    Argued January 21
    officially released May 4, 1999

      Eliot D. Prescott, assistant attorney general, with whom were Ronald Blanchette, assistant attorney general, and, on the brief, Richard Blumenthal, attorney general, and Donald M. Longley, assistant attorney general, for the appellant (state).

      Sydney T. Schulman, for the appellee (defendant).

      Rhonda M. Morra, for the minor child.
   Opinion

LANDAU, J.

The state appeals from the judgment of the Superior Court dismissing the state’s appeal from an order entered by a family support magistrate. The sole issue on appeal is whether the Superior Court improperly concluded that an order of genetic testing issued by the family support magistrate without first opening the underlying judgment of paternity was not a final judgment for purposes of the appeal to the Superior Court. We reverse the judgment of the Superior Court.

The following facts are necessary for the resolution of this appeal. In June, 1990, after the plaintiff, Damaris Cardona, identified the defendant, Gervacio Negron, as the father of the minor child, the bureau of child support of the department of human resources (bureau) notified the defendant by letter that the bureau needed to discuss a confidential matter with him. In addition, the letter stated that failure to comply with the request to contact the bureau could result in legal action to resolve the situation. Thereafter, in July, 1990, the defendant signed an acknowledgment of paternity and the plaintiff signed an affirmation of paternity, affirming that the defendant was the father of the minor child. The acknowledgment was filed in the Superior Court in August, 1990. InJune, 1992, the family support magistrate, pursuant to General Statutes § 46b-215 (a), entered child support orders.

In June, 1995, nearly five years after the judgment of paternity had entered, the defendant filed a motion to open it. The sole basis of the defendant’s motion to open was that he had signed the acknowledgment of paternity on the basis of fraud perpetrated on him by the plaintiff. In July and September, 1997, the family support magistrate conducted an evidentiary hearing on the issue of fraud in which the plaintiff testified, among other things, that the minor child has cyclic neutropenia, arare white blood cell disorder. The family support magistrate granted the defendant’s motion for DNA testing and ordered the plaintiff, the defendant and the minor child to undergo genetic testing, finding that it was in the minor child’s best interest to undergo the testing. The family support magistrate, however, made no finding as to the issue of fraud and continued the hearing on the motion to open to a later date.

Thereafter, the state appealed to the Superior Court pursuant to General Statutes § 46b-231 (n) (l). In its appeal, the state claimed that the family support magistrate lacked the authority to order genetic testing under General Statutes § 46b-168 (a) without first finding that the defendant proved fraud by clear and convincing evidence and without first opening the prior judgment of paternity. The Superior Court dismissed the appeal, concluding that it lacked jurisdiction over the appeal because the order for genetic testing was not a final judgment but, instead, was an interlocutory decision.

On appeal to this court, the state argues that it challenges the authority of the family support magistrate to order genetic testing and, as such, its appeal is taken from a final judgment for purposes of the appeal to the Superior Court. We agree and set aside the judgment of dismissal.

It is axiomatic that the jurisdiction of an appellate tribunal is limited to appeals from judgments that are final. The mortar that creates the bind is our policy “to discourage piecemeal appeals and to facilitate the speedy and orderly disposition of cases at the trial court level.” Burger & Burger, Inc. v. Murren, 202 Conn. 660, 663, 522 A.2d 812 (1987). We acknowledge that in some instances it is unclear whether an order is an appealable final judgment and that there are grey areas between judgments that are undoubtedly final and others that are clearly interlocutory. E. J. Hansen Elevator, Inc. v. Stoll, 167 Conn. 623, 627, 356 A.2d 893 (1975). To determine final judgments for purposes of appeal, our Supreme Court has articulated a two part test applicable to both criminal and civil proceedings. State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983); see also State v. Parker, 194 Conn. 650, 653, 485 A.2d 139 (1984) (“ ‘separate and distinct’ ” requirement is first part of Curcio test); Daginella v. Foremost Ins. Co., 197 Conn. 26, 31, 495 A.2d 709 (1985) (focus of second part of Curdo test is on potential harm to appellant’s rights).

In the present case, the defendant filed a motion to open the prior judgment. It is well established that an order opening a judgment ordinarily is not a final judgment. G. F. Construction, Inc. v. Cherry Hill Construction, Inc., 42 Conn. App. 119, 122-23, 679 A.2d 32 (1996). The defendant’s argument that the magistrate’s order was a nonappealable interlocutory order, which implicates both parts of the Curdo test, however, need not be addressed. Our Supreme Court “has recognized an exception to [the rule that the opening of judgment is nonappealable] where the appeal ‘challenges the power of the court to act to set aside the judgment.’ Connecticut Light & Power Co. v. Costle, 179 Conn. 415, 418, 426 A.2d 1324 (1980); 4 Am. Jur. 2d, Appeal and Error § 126.” Solomon v. Keiser, 212 Conn. 741, 747, 562 A.2d 524 (1989).

The defendant seeks to distinguish Solomon v. Keiser, supra, 212 Conn. 748, a progeny of Connecticut Light & Power Co. v. Costle, supra, 179 Conn. 418, by the fact that the Solomon court dealt with orders that granted a motion to open and set aside the judgment. In the present matter, the defendant argues that the family support magistrate’s order neither opened the judgment nor vacated the paternity or the child support order. The defendant further asserts that under these circumstances, the order for genetic testing did not have the effect of setting aside the judgment and, therefore, does not meet the limited exception promulgated by Solomon.

The gravamen of the state’s claim is not that the family support magistrate erroneously exercised its jurisdiction; see Hill v. Hill, 25 Conn. App. 452, 455-56, 594 A.2d 1041, cert. denied, 220 Conn. 917, 597 A.2d 333 (1991); but, rather, that the magistrate lacked the authority to act. See Solomon v. Keiser, supra, 212 Conn. 741. We agree with the state that Solomon controls this case. If the family support magistrate opened the judgment so as to permit the genetic testing, the magistrate in effect opened it without making a finding that fraud existed. If, on the other hand, the magistrate did not open the judgment, then the magistrate lacked the authority to order the genetic testing. Under either circumstance, we conclude that the state sought to challenge the authority of the family support magistrate to act. See id. As such, we conclude that the Superior Court’s dismissal of the state’s appeal was improper.

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

In this opinion the other judges concurred.

       The plaintiff mother applied for welfare benefits from the state of Connecticut under the aid to families with dependent children program pursuant to Title IV-A of the Social Security Act, 42 U.S.C. § 301 et seq. By such application, the plaintiff assigned her right to child support to the state. See General Statutes § 17b-77. The state is, therefore, an aggrieved party. See General Statutes § 46b-215 (b) (“Attorney General of the state of Connecticut . . . shall become a party for the interest of the state ... in any proceedings for support which concerns any person who is receiving or has received public assistance or care from the state . . .”).

       We note that the defendant did not file a brief in this matter but, instead, adopted the brief of the minor child.

       The acknowledgment of paternity expressly notified the defendant that it had the effect of a paternity trial in which a judge had decided that the defendant was the father of the child, that he would be giving the child many rights and benefits, that he had a right to speak to an attorney before he signed the document, that he had the right to refuse to admit paternity and to have a trial in which he could be represented by counsel and that he would be responsible to support the child until the child was eighteen years old and that failure to do so could result in legal proceedings brought against him.

       “Unlike a suit initiated pursuant to [General Statutes] § 46b-160, the acknowledgment procedure provides an alternative to a full scale judicial proceeding, and an agreement reached pursuant to it does not require court approval. The acknowledgment procedure may be followed ‘[i]n lieu of or in conclusion of a paternity action initiated pursuant to § 46b-160. Once a person signs a written acknowledgment form, that form is filed with the court and has ‘the same force and effect as a judgment of the court. . . .’ General Statutes § 46b-172 (a).” (Emphasis added.) Bleidner v. Searles, 19 Conn. App. 76, 81, 561 A.2d 954 (1989).

       Specifically, the defendant notes that the plaintiff had claimed that the defendant was the father of a second child, but that DNA testing revealed that he was not. The defendant asserts that he has since learned that the plaintiff was untruthful when she said that he was the father of the minor child at issue in the underlying action.

       The state did not dispute the fact that the child has the blood disorder. Our review of the transcript, however, reveals that there was no testimony or other evidence that the genetic testing would benefit the minor child.

       General Statutes § 46b-231 (n) (1) permits an appeal to the Superior Court by “[a] person who is aggrieved by a final decision of a family support magistrate . . . .”

       The state first raised the question of final judgment in its response to the defendant’s objection to the state’s appeal petition. Reference to that document is not intended to be an official recognition of that type of response. For puiposes of this appeal, however, we cite to it for the limited purpose of locating the state’s argument regarding final judgment. We note that the state argued the question of final judgment based on State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983), which the Superior Court relied on in its decision.

       Specifically, the state argues that judgments of paternity may not be reconsidered more than three years after they have entered. See General Statutes § 46b-172 (b). Because the defendant filed a motion to open after the three year statute of limitations had expired, the state argues, citing Kenworthy v. Kenworthy, 180 Conn. 129, 131, 429 A.2d 837 (1980), that the family support magistrate lacked jurisdiction to entertain the motion to open the judgment unless the judgment was obtained by fraud, duress or mutual mistake. As such, the state argues that the family support magistrate could not open the judgment or exercise any statutory authority, such as ordering genetic testing, until the magistrate found that the 1990 judgment of paternity was obtained by fraud and opened the judgment.

       In Perry v. Perry, 222 Conn. 799, 804, 611 A.2d 400 (1992), overruled on other grounds, Bryant v. Bryant, 228 Conn. 630, 636 n.4, 637 A.2d 1111 (1994), the state argued that the defendant could have taken an appeal from a family support magistrate’s finding of contempt. The Perry court relied on State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983), in analyzing whether the appeal was taken from a final decision pursuant to § 46b-231 (n). See footnote 7. Accordingly, in this case, in deciding whether the state’s appeal taken from the family support magistrate’s order to the Superior Court was a final decision, we will rely on the standard rules found in our final judgment jurisprudence.


author: SULLIVAN, J.

text:
    FRANK RICIGLIANO v. J. J. RYAN CORPORATION ET AL.
    (AC 18357)
    Landau, Hennessy and Sullivan, Js.
    Argued February 25
    officially released May 4, 1999

      Robert B. Cohen, with whom, on the brief, was Louis Wang, for the appellant (plaintiff).

      Dominick C. Statile, with whom were Richard L. Aiken, Jr., Diane Duhamel, Theodore M. Pappas and Nancy Rosenbaum, for the appellees (defendants).
   Opinion

SULLIVAN, J.

The plaintiff, Frank Ricigliano, appeals from the decision of the workers’ compensation review board (board) affirming the decision of the workers’ compensation commissioner (commissioner). The plaintiff asserts that the board improperly affirmed the commissioner’s finding (1) as to the degree of the plaintiffs hearing loss and (2) that the “insurance examining physician’s opinion was more credible than that of the other examining physician’s opinion” despite the fact that both physicians found hearing loss requiring the use of a hearing aid. We affirm the board’s decision.

The commissioner found the following facts. In January, 1972, the plaintiff started working as a press operator for the Rex Forge division of the defendant J. J. Ryan Corporation (Rex Forge). After approximately one year, he moved to the forge shop where he worked on a drop hammer, a 3000 pound ram with a die head that stamps out tools. After his job at Rex Forge was terminated in 1989, he started working in the maintenance department at the defendant Ideal Forging Corporation (Ideal). His workroom was close to the forge area, and his job required his occasionally entering the forge area.

Stanley Friedman, a physician, initially examined the plaintiff on January 17, 1992, and found a 24.58 percent binaural hearing loss. On November 13, 1992, physician Eiji Yanagisawa examined the plaintiff and interpreted an audiogram as indicating a 0.62 percent binaural hearing loss. A second examination by Friedman on January 22, 1993, resulted in an audiogram that he interpreted as indicating a 35 percent binaural hearing loss. Both Friedman and Yanagisawa agree that the plaintiff suffered a hearing loss caused by repeated occupational exposure to excessive noise at Rex Forge and Ideal. They disagree, however, in their interpretations of the audiograms. Yanagisawa used the American Medical Association (AMA) guidelines. Friedman used a different method of calculating hearing loss.

On October 20, 1994, the commissioner relied on the AMA standards and found a 0.68 percent binaural hearing loss. The plaintiff appealed that decision. On January 18,1996, the board issued a decision remanding the matter to the commissioner with instructions to determine the plaintiffs hearing loss without limiting the determination to the AMA guidelines. At the second hearing in 1996, neither party submitted further evidence, and the commissioner made a determination based on evidence from the original hearing. On November 4, 1996, the commissioner issued a finding that credited the testimony of Yanagisawa over that of Friedman and determined the hearing loss to be 0.62 percent. The board affirmed that decision as a factual determination, which it had no power to overturn on appeal.

I

The plaintiff first claims that the board improperly affirmed the commissioner’s finding and award. Specifically, he argues that the finding was based on a formula that does not account for the full extent of his hearing loss, has not been adopted as a standard by the Workers’ Compensation Act, General Statutes § 31-275 et seq., and was not introduced into evidence. We find no merit in this claim.

“As a preliminary matter, we note that when a decision of a commissioner is appealed to the review division, the review division is obligated to hear the appeal on the record of the hearing before the commissioner and not to retry the facts. Fair v. People’s Savings Bank, 207 Conn. 535, 538-39, 542 A.2d 1118 (1988). The commissioner has the power and duty, as the trier of fact, to determine the facts. Castro v. Viera, 207 Conn. 420, 435, 541 A.2d 1216 (1988). ‘ “The conclusions drawn by him from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” Adzima v. UAC/Norden Division, [177 Conn. 107, 118, 411 A.2d 924 (1979)].’ Id. ‘Our scope of review of the actions of the review division is similarly limited.’ DeBarros v. Singleton, 21 Conn. App. 107, 110, 572 A.2d 69 [cert. denied, 215 Conn. 808, 576 A.2d 538] (1990).” Vanzant v. Hall, 219 Conn. 674, 677, 594 A.2d 967 (1991).

After considering the testimony of both Friedman and Yanagisawa, the commissioner determined the extent of the plaintiffs hearing loss to be 0.62 percent. Because the commissioner’s finding was a reasonable factual determination, we conclude that the board properly affirmed his decision.

II

The plaintiff also claims that the board improperly affirmed the commissioner’s determination that Yanagi-sawa’s opinion was more credible than Friedman’s opinion despite the fact that both physicians undisputedly found a hearing loss sufficient to warrant the use of a hearing aid. We disagree.

As we stated in part I of this opinion, it is well established that “the trial commissioner is the arbiter of evidentiary credibility. Adzima v. UAC/Norden Division, [supra, 177 Conn. 117-18], The conclusions drawn by him from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. . . . This standard clearly applies to conflicting expert medical testimony. It [is] the province of the commissioner to accept the evidence which impress [es] him as being credible and the more weighty. Stankewicz v. Stanley Works, 139 Conn. 215, 217, 92 A.2d 736 (1952); see Winzler v. United Aircraft Corp., 132 Conn. 118, 120, 42 A.2d 655 (1945). . . . Dichello v. Holgrath Corp., 49 Conn. App. 339, 353, 715 A.2d 765 (1998).” (Internal quotation marks omitted.) Weiss v. Chesebrough-Ponds USA Co., 51 Conn. App. 106, 110-11, 719 A.2d 1225 (1998).

Although both physicians reached the same conclusion that the plaintiff suffered a hearing loss sufficient to warrant the use of a hearing aid, the commissioner found that Yanagisawa’s opinion that the plaintiff had sustained a 0.62 percent binaural hearing loss was more credible than that of Friedman. Because the commissioner, as the trier of fact, was entitled and obliged to make that determination, we conclude that the board properly affirmed his decision.

The decision of the workers’ compensation review board is affirmed.

In this opinion the other judges concurred.

       Until 1975, the company was named J. J. Ryan Tool Co.


author: PER CURIAM.

text:
    DANIEL V. PRESNICK v. FREEDOM OF INFORMATION COMMISSION ET AL.
    (AC 18112)
    Foti, Landau and Shea, Js.
    Argued February 24
    officially released May 4, 1999

      Daniel V. Presnick, pro se, the appellant (plaintiff).

      Victor R. Perpetua, appellate counsel, with whom, on the brief, was Mitchell W. Pearlman, general counsel, for the appellee (named defendant).
   Opinion

PER CURIAM.

The plaintiff appeals from the judgment rendered by the trial court affirming a ruling by the freedom of information commission (commission) that a session of the board of selectmen of the town of Orange (board) did not constitute a meeting within the definition of the Freedom of Information Act, General Statutes (Rev. to 1995) § 1-7 et seq.

The board of education of the town of Orange sent a proposed teachers contract to the board in November, 1995. The board debated the contract in open session and rejected it. Thereafter, the matter went to arbitration and a binding arbitration award was issued in February, 1996. A special meeting of the board was held thereafter, and one of the items on the agenda was the arbitration award. The board asked the public to leave during that discussion. The plaintiff filed a complaint with the commission, which determined that the board retired to discuss what to do about the arbitration award. The commission characterized the recess as a session in which the board discussed strategy with regard to collective bargaining within the meaning of General Statutes (Rev. to 1995) § l-18a (b), which provides that such sessions are not meetings required to be open to the public by the Freedom of Information Act. The trial court affirmed the commission’s ruling and this appeal followed.

The sole issue in this appeal is whether the trial court correctly concluded that the record supported the facts found and the conclusion reached by the commission.

“[We are] required to defer to the subordinate facts found by the commission, if there is substantial evidence to support those findings.” Furhman v. Freedom of Information Commission, 243 Conn. 427, 431, 703 A.2d 624 (1997). “We look to see if the [trial] court reviewing the [commission’s findings] acted unreasonably, illegally, or in abuse of discretion.” (Internal quotation marks omitted.) Dortenzio v. Freedom of Information Commission, 48 Conn. App. 424, 430, 710 A.2d 801 (1998). Conclusions of law reached by the commission must stand if they resulted from a correct application of the law to the facts found and could reasonably and logically follow from such facts. Board of Labor Relations v. Freedom of Information Commission, 43 Conn. App. 133, 137, 682 A.2d 1068 (1996), aff'd, 244 Conn. 487, 709 A.2d 1129 (1998). “Neither we nor the trial court may retry the case or substitute our own judgment for that of the commission.” Dept. of Public Safety v. Freedom of Information Commission, 51 Conn. App. 100, 104, 720 A.2d 268 (1998).

After completely examining the record, transcripts and briefs filed in the present matter, considering the oral arguments and affording the plaintiffs sole claim the appropriate scope of review, we conclude that the plaintiffs claim is without merit.

The judgment is affirmed.

       The plaintiff refused to leave and was arrested and forcibly removed by the police.

       General Statutes (Rev. to 1995) § l-18a (b) provides: “ ‘Meeting’ means any hearing or other proceeding of a public agency, any convening or assembly of a quorum of a multimember public agency, and any communication by or to a quorum of a multimember public agency, whether in person or by means of electronic equipment, to discuss or act upon a matter over which the public agency has supervision, control, jurisdiction or advisory power. ‘Meeting’ shall not include: Any meeting of a personnel search committee for executive level employment candidates; any chance meeting, or a social meeting neither planned nor intended for the purpose of discussing matters relating to official business; strategy or negotiations with respect to collective bargaining; a caucus of members of a single political party notwithstanding that such members also constitute a quorum of a public agency; an administrative or staff meeting of a single-member public agency; and communication limited to notice of meetings of any public agency or the agendas thereof. ‘Caucus’ means a convening or assembly of the enrolled members of a single political party who are members of a public agency within the state or a political subdivision.”

       The plaintiff claimed that the trial court improperly failed to enforce a subpoena, failed to strike a brief and improperly opened a nisi judgment against the town of Orange, an order that is not in the record. Additionally, the plaintiff claims a right under article first, § 2, of the constitution of Connecticut to be present at the meeting. These claims are either not briefed or inadequately briefed. We, therefore, decline to review them. See Mejia v. Commissioner, 48 Conn. App. 230, 234 n.5, 716 A.2d 894, cert. denied, 245 Conn. 902, 719 A.2d 1163 (1998).


text:
    ANGEL RIVERA v. LIQUOR CONTROL COMMISSION ET AL.
    (AC 17946)
    Landau, Schaller and Dupont, Js.
    Argued January 28
    officially released May 4, 1999

      Alexander Aponte, for the appellant (plaintiff).

      Robert F. Vacchelli, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (defendant).
   Opinion

LANDAU, J.

The plaintiff, Angel Rivera, appeals from the judgment of the Superior Court dismissing his administrative appeal. The named defendant, the state liquor control commission (commission), pursuant to General Statutes § 30-46 (a) (1) and (3), denied the plaintiffs application for a cafe liquor permit. On appeal to this court, the plaintiff claims that the Superior Court improperly (1) concluded that there were sufficient facts in the record to deny the application and (2) found that notice of the hearing was adequate. We affirm the judgment of the Superior Court.

The following facts are not in dispute. The plaintiff applied for a cafe liquor permit in August, 1995, for premises located at 58 Rockwell Avenue, New Britain, formerly the site of a cafe owned and occupied by another individual not involved in this action whose permit had been revoked by the commission. Residents of the neighborhood filed a remonstrance, pursuant to General Statutes § 30-39 (c), and eighteen letters of protest objecting to the proposed location of the establishment. The commission issued a notice of hearing, advising the plaintiff that he would be required to present facts and evidence in support of his application for the liquor permit.

In its written decision, the commission made the following findings of fact with respect to the character of the neighborhood: “[T]he proposed premises [are] in the heart of a residential neighborhood that is struggling to revitalize and improve its quality of life; there are several churches and two parochial schools, including St. Matthew’s, First Lutheran, St. Peter’s, St. John’s Lutheran, and Arco de Regio Pentecostal; there [are] a methadone clinic, Salvation Army, and senior citizen housing, as well as child day care centers; and both the hearing and the permit records of the commission, of which the commission takes notice, reveal there are liquor outlets within close proximity to the proposed establishment.” The commission found the proposed premises unsuitable and denied the application. Specifically, the commission concluded that “based upon the facts of this case, it is the considered judgment of the commission that the addition of one more full-service cafe, in light of the character of this neighborhood, is not in the public interest and would have a detrimental effect. . . . We believe that the saturation point has already been reached with the existing establishments.”

Thereafter, the plaintiff appealed to the Superior Court, pursuant to General Statutes § 4-183. See Uniform Administrative Procedure Act (UAPA), General Statutes § 4-166 et seq. The Superior Court dismissed the plaintiffs appeal. It concluded that “the decision of the commission is amply supported by the evidence in the record.” Moreover, the Superior Court concluded that the plaintiff “received sufficient notice as to the issues of suitability of the premises with respect to its location.” From that judgment, the present appeal ensued.

“The function of the court in reviewing the commission’s denial of a permit for the premises is not to reach its own conclusions upon the subordinate facts but only to determine whether the conclusion of the commission on such facts is unreasonable or illogical”; Campisi v. Liquor Control Commission, 175 Conn. 295, 296, 397 A.2d 1365 (1978); or in abuse of its discretion. Dolgner v. Alander, 237 Conn. 272, 280, 676 A.2d 865 (1996). It is not the function of the Superior Court to retry the case. Williams v. Liquor Control Commission, 175 Conn. 409, 414, 399 A.2d 834 (1978). “Courts are bound by the findings of subordinate facts and reasonable conclusions of fact made by an administrative tribunal. The General Assembly, in defining an administrative body’s duties, can ordinarily state only general rules for its guidance by defining certain ultimate facts which it must find to exist before taking the prescribed action.” Campisi v. Liquor Control Commission, supra, 296. The question that the Superior Court must answer is whether the record before the commission supports the action taken. Williams v. Liquor Control Commission, supra, 414.

We review the issues raised by the plaintiff in accordance with the limited scope of judicial review afforded by the UAPA. Dolgner v. Alander, supra, 237 Conn. 280. Under § 4-183 (j) (5) and (6) of the UAPA, judicial review of administrative fact-finding is governed by the substantial evidence rule. Id., 281. “An administrative finding is supported by substantial evidence if the record affords a substantial basis of fact from which the fact in issue can be reasonably inferred.” (Internal quotation marks omitted.) Id.

I

The plaintiff first argues that the Superior Court improperly concluded that there were sufficient facts in the record to support the commission’s denial of his application. We are not persuaded.

Section 30-46 (a) provides: “The Department of Consumer Protection may . . . refuse to grant or renew a permit ... if it has reasonable cause to believe . . . (3) that the number of permit premises in the locality is such that the granting of a permit is detrimental to the public interest, and, in reaching a conclusion in this respect, the department may consider the character of, the population of, the number of like permits and number of all permits existent in, the particular town and the immediate neighborhood concerned, the effect which a new permit may have on such town or neighborhood or on like permits existent in such town or neighborhood . . . .” “That provision confers broad discretion upon the . . . commission to grant or deny permits. ... In Biz v. Liquor Control Commission, 133 Conn. 556, 561, 53 A.2d 655 [1947], [our Supreme Court] in considering the provisions of § 30-46 (a) (3) noted that ‘[a] principle and purpose may be read into the act to prevent the issuance of too many permits in certain localities, depending upon the character and number of the population and upon the number of existing permits in the locality. We hold that these are factual matters properly left to the determination of the commission.’ The determination of what constitutes too many permits in certain localities or neighborhoods is thus a question of fact, within the discretion of the administrative agency. Moreover, because of the danger to public health and welfare inherent in liquor traffic, the police power to regulate the liquor trade runs broad and deep, more so than comparable regulatory powers over other activities.” (Citations omitted.) Williams v. Liquor Control Commission, supra, 175 Conn. 411-12.

We are cognizant that the legislature, in permitting an administrative agency to take prescribed action, contemplates allowing that agency to draw a line somewhere, and we see nothing arbitrary or illegal in such a ruling as long as it is supported by evidence and the proper application of the statute to the facts. See Biz v. Liquor Control Commission, supra, 133 Conn. 562. In this case, the commission drew its line within the circle of supporting evidence concerning the number of permits existing in the neighborhood. The record clearly reveals that the commission’s conclusion that granting the permit would be detrimental to the public interest was made after receiving considerable evidence. As to the number of permits in the locality, the commission received evidence that there are at least two other bars one block away from the proposed premises. Moreover, a package store is located in close proximity to the proposed establishment. The neighborhood at issue is residential and struggling to revitalize, having been a dangerous area plagued by various forms of criminal activity during the time that the previous cafe occupied the site. There are several churches, schools and child care centers in the community, along with senior citizen housing and a methadone clinic.

We conclude, therefore, that there was a substantial basis from which the commission reasonably could have inferred that granting the permit would have been detrimental to the public interest under § 30-46 (a) (3). The same findings could also have led the commission reasonably to infer that the proximity of the premises would have a detrimental effect on the organizations located in the neighborhood. See General Statutes § 30-46 (a) (l).

In support of his argument that there were insufficient facts on which the commission could have based its decision, the plaintiff claims that the commission relied on facts that were not supported by evidence. Specifically, the plaintiff claims that there was no evidence presented regarding the types of permits held by the other establishments in the neighborhood or the names or locations of those establishments. In support of that argument, the plaintiff relies on Crescimanni v. Dept. of Liquor Control, 41 Conn. App. 83, 674 A.2d 851 (1996). That reliance, however, is misplaced. In Crescimanni, the commission rejected an applicant but failed to make findings or conclusions as to the number of permits in the vicinity. Here, unlike in Crescimanni, the commission took notice of the existence of two other bars in the immediate area, establishments that have similar permits, and liquor outlets that are within close proximity. The commission, therefore, reasonably could have inferred that given the number of similar permits in the area surrounding that particular location and the character of the neighborhood, “the saturation point [had] already been reached with the existing establishments.”

In view of the highly deferential standard of review accorded to the actions of an agency, we are persuaded that the record contained substantial evidence to support the commission’s denial of the application under either subsection.

II

The plaintiff finally claims that the Superior Court improperly found that notice of the hearing was adequate. Specifically, the plaintiff asserts that he was not given notice that the commission was evaluating the application under the standards incorporated in § 30-46 (a) (1) and (3) and, thus, the commission violated the fundamental fairness rule. We disagree.

“[T]he test of whether one is given adequate notice is whether it apprises [the plaintiff] of the claims to be defended against, and on the basis of the notice given, whether [the] plaintiff could anticipate the possible effects of the proceeding.” (Internal quotation marks omitted.) Fleischman v. Board of Examiners in Podiatry, 22 Conn. App. 181, 191, 576 A.2d 1302 (1990). The plaintiff was notified that he was required to furnish facts and evidence in support of his application “relative to suitability of . . . place as provided by Chapter 545 of the Connecticut General Statutes and the Regulations of the Connecticut State Agencies.” Chapter 545 of the General Statutes, the Liquor Control Act, includes the section cited by the agency in its decision, § 30-46 (a) (1) and (3). Furthermore, the plaintiff was also notified that the agency would consider the issues of remonstrance and the suitability of the premises. The remonstrance and letters objecting to the location of the cafe, which were part of the record, include references to the proximity of the location to various organizations in the neighborhood and references to past incidents at the location.

We are persuaded that the plaintiff had advance notice that the commission, in reviewing the appropriateness of his proposed location, would also consider the impact that it would have on the neighborhood. We cannot say, therefore, that the plaintiff was misled as to the nature of the hearing. See, e.g., Hart Twin Volvo Corp. v. Commissioner of Motor Vehicles, 165 Conn. 42, 44, 327 A.2d 588 (1973). By citing the relevant chapter of the General Statutes and referencing the issues that would be considered, the commission provided the plaintiff with sufficient notice. See General Statutes § 4-177 (b). The plaintiff was accorded his common-law right to fundamental fairness in administrative hearings. See Grimes v. Conservation Commission, 243 Conn. 266, 273, 703 A.2d 101 (1997). We cannot say that the commission’s decision to deny the application for a liquor permit was unreasonable so as to constitute an abuse of discretion. We conclude, therefore, that the Superior Court properly dismissed the plaintiffs appeal.

The judgment is affirmed.

In this opinion the other judges concurred.

       “In 1994, the liquor control commission was alegislatively created agency that directed the department of liquor control in its enforcement of the [LJiquor [CJontrol [A]ct [General Statutes § 30-1 et seq.]. Subsequently, in 1995, the responsibilities of the department of liquor control were transferred to the department of consumer protection. See Public Acts 1995, No. 95-195, §§ 13 and 83. The liquor control commission, however, continues to direct enforcement of the [L]iquor [C]ontrol [A]ct.” Loulis v. Parrott, 241 Conn. 180, 183 n.4, 695 A.2d 1040 (1997).

       General Statutes § 30-46 (a) provides in relevant part: “The Department of Consumer Protection may . . . refuse to grant or renew a permit for the sale of alcoholic liquor if it has reasonable cause to believe: (1) That the proximity of the permit premises will have a detrimental effect upon any church, public or parochial school, convent, charitable institution, whether supported by private or public funds, hospital or veterans’ home or any camp, barracks or flying field of the armed forces ... (3) that the number of permit premises in the locality is such that the granting of a permit is detrimental to the public interest, and, in reaching a conclusion in this respect, the department may consider the character of, the population of, the number of like permits and number of all permits existent in, the particular town and the immediate neighborhood concerned, the effect which a new permit may have on such town or neighborhood or on like permits existent in such town or neighborhood . . . .”

       The other defendants named in the underlying action are the remonstrants who testified before the commission. The commission, however, prosecutes the appeal to this court alone.

       Specifically, the notice stated in relevant part: “You will be required to furnish facts and evidence in support of the application relative to suitability of person and place as provided by Chapter 545 of the Connecticut General Statutes and the Regulations of the Connecticut State Agencies.
      “IN ADDITION TO THE ABOVE THIS HEARING IS BEING HELD ON A QUESTION OF: ISSUE #1: REMONSTRANCE; ISSUE #2: SUITABILITY OF PREMISES; ISSUE #3: SUITABILITY OF PERSON; ISSUE #4: ZONING; ISSUE #5: APPLICATIONS/ZONING.”

       The commission is an agency within the meaning of General Statutes § 4-166 (1) and is subject to the provisions of the UAPA. All Brand Importers, Inc. v. Dept. of Liquor Control, 213 Conn. 184, 211, 567 A.2d 1156 (1989).

       The criminal activity included, among other things, a homicide, drug activity and incidents involving gunfire.

       The plaintiff also asserts that § 30-46 (a) (1) and (3) statutorily require that the commission make specific findings that are separate and distinct, which the commission failed to do. The plaintiffs reliance on Turner v. Turner, 219 Conn. 703, 595 A.2d 297 (1991), in support of his argument, however, is misplaced. Turner states that it is presumed that the legislature has a purpose for each phrase in a legislative enactment. Id., 713. There is, however, no language in Turner that sets forth a requirement that separate factual findings must be drafted under each subsection of a statute on which one relies. The plaintiff cites no other authority to support his argument and we can find none.

       Moreover, the plaintiff argues that § 3(M6 requires the commission to exclude from its consideration information regarding previous establishments that occupied a proposed premises. The plaintiff, however, cites no authority in support of this contention. We note that the commission, in determining the number of permits in certain localities, could have exercised its broad discretion to consider factors such as the effect of other establishments on an applicant’s business. Our Supreme Court has indicated that, after considering other business in the immediate area, the commission could have denied a permit based on the probability that the applicant’s business would not be profitable or that the applicant might engage in the illegal sale of liquor. Aminti v. Liquor Control Commission, 144 Conn. 550, 554, 135 A.2d 595 (1957). Furthermore, we note that § 30-46 (a) (4) allows a commission to deny a permit if there is reasonable cause to believe “that the place has been conducted as a lewd or disorderly establishment

       See footnote 4.

       General Statutes § 4-177 (b) provides in relevant part: “The notice shall . . . include . . . (3) a reference to the particular sections of the statutes and regulations involved; and (4) a short and plain statement of the matters asserted. . . .”

       Moreover, it is rather late in the day for the plaintiff to malee this argument. If the plaintiff was in doubt as to what constituted the “suitability of premises” issue in the notice, he could have requested a more specific statement. See General Statutes § 4-177 (b) (“[i]f the agency ... is unable to state the matters in detail . . . the initial notice may be limited to a statement of the issues involved. Thereafter, upon application, a more definite and detailed statement shall be furnished”). That he did not do and cannot now complain.