text:
    Edward Daly v. Lawrence F. DelPonte, Commissioner of Motor Vehicles
    (10372)
    Lavery, Landau and Heiman, Js.
    Argued February 19
    decision released May 5, 1992

      Lawrence W. Berliner, with whom, on the brief, was Catherine Cushman, for the appellant (plaintiff).

      Cornelius F. Tuohy, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (defendant).
   Heiman, J.

The plaintiff, Edward Daly, appeals from the trial court’s judgment dismissing his appeal from the decision of the defendant, the commissioner of motor vehicles for the state of Connecticut, suspending his driver’s license and requiring him to submit certain medical reports as a condition of reinstatement and retention of that license. He claims that the trial court (1) incorrectly determined that his substantial rights were not prejudiced by the defendant’s decision, (2) incorrectly determined that the defendant’s prejudgment decision summarily suspending his license comported with General Statutes § 4-182, (8) improperly failed to consider whether the defendant’s actions violated the equal protection clause of the Connecticut constitution, (4) incorrectly determined that the defendant’s action was not arbitrary, capricious, illegal or an abuse of discretion, and (5) improperly failed to consider the effects of certain claimed ex parte communications made by the defendant. We affirm the trial court’s judgment.

The facts necessary to resolve this appeal may be summarized as follows. In 1986, the plaintiff, an inspector employed by the department of motor vehicles (DMV), was treated by Michael Krinsky, a neurologist, after experiencing a seizure. As a result of the seizure, the defendant required the plaintiff to submit a P-142N, a DMV neurological medical report form, periodically. In a P-142N dated January 19,1989, Krinsky indicated that the plaintiff was taking his anticonvulsant medication as instructed.

On May 4, 1989, the plaintiff suffered another seizure while on his lunch break at Max’s Pizza restaurant in Bloomfield and was taken to Mount Sinai Hospital for treatment. As a result of this incident, the plaintiff was relegated to office duties upon his return to work and was prohibited from driving a state vehicle until his condition could be evaluated further. The plaintiff was notified by letter dated March 23, 1989, that the defendant summarily had placed him on medical probation, a period during which he was required, under threat of having his driver’s license suspended, to submit medical reports to the DMV. In a letter dated May 16, 1989, Krinsky confirmed that the plaintiff had suffered a seizure recently, that his anticonvulsant medication was increased as a result of the seizure and that he was approved to resume his regular duties at work.

The plaintiff submitted another P-142N signed by Krinsky on May 25, 1989. Upon receiving the May 25, 1989 P-142N, Gladys O. Johnson, the chief of the drivers services division of the DMV, wrote to John T. Horn-blow, a neurologist and then chairman of DMV’s medical advisory board, soliciting Hornblow’s opinion regarding the plaintiff’s fitness to drive. To aid Horn-blow in his analysis, Johnson enclosed medical reports and a letter signed by Krinsky as well as a memo from Lieutenant Lee Telke of the DMV, an eyewitness to the May 4,1989 seizure. In a letter dated June 12,1989, Hornblow informed Johnson that although he had misgivings about the plaintiff’s ability to drive safely, he had not yet consulted with Krinsky. In a letter dated June 26, 1989, Hornblow informed Johnson that, because he still had been unable to confer "with Krinsky and therefore did not have the optimum data on which to base a recommendation, he felt that the plaintiff’s license should be suspended until his medication requirements could be assessed.

Johnson notified the plaintiff by letter dated July 22, 1989, that the defendant had ordered his driver’s license suspended effective August 5, 1989, on the basis of a finding that his continued operation of a motor vehicle would be dangerous to himself and to others. The letter further advised the plaintiff of his right to request a presuspension hearing.

On August 1, 1989, the plaintiff requested a pre-suspension hearing. Consequently, Johnson sent a memorandum to Michael Krochmalny, chief of the DMV’s adjudications division, requesting that he schedule a hearing concerning whether the plaintiff’s driver’s license should be suspended. The defendant notified both the plaintiff and Krinsky that a hearing was scheduled for August 15, 1989.

On August 15, 1989, the parties negotiated a proposed stipulated settlement agreement that was tentatively accepted by Michael Ross, a DMV hearing officer, on the condition that the defendant approve it. The defendant notified the plaintiffs attorney that after reviewing the agreement and the plaintiffs file and consulting with Johnson and Hornblow, he was unable to approve the agreement. He further stated that he would request Krochmalny to schedule a full hearing on the matter.

A license suspension hearing was held on September 21, October 26, and December 6,1989, before DMV hearing officer William Grady. On January 2, 1990, Grady issued his decision, finding that the plaintiff was “not a proper person to hold a Connecticut operator’s license based on available medical evidence.” As a result of Grady’s findings, the defendant ordered that (1) the August 5, 1989 suspension remain in effect until May 4, 1990, (2) on May 4, 1990, the plaintiff become eligible for reinstatement of his driver’s license, (3) in the event that the plaintiff’s driver’s license was reinstated, he submit P-142Ns to the DMV every three months, commencing with the date of reinstatement, for a period of three years, and (4) the plaintiff submit a P-142N to the DMV within seven days of any subsequent consciousness altering event or seizure.

The plaintiff appealed to the Superior Court, which rendered judgment dismissing the appeal on June 11, 1991. At some time before the trial court rendered its judgment, the plaintiff’s license suspension had expired and his license had been reinstated. This appeal followed.

I

The plaintiff first claims that the trial court incorrectly concluded that the defendant did not act unreasonably, arbitrarily, illegally or in abuse of its discretion in placing him on medical probation. He specifically argues that the defendant was without the statutory or regulatory authority to place him on medical probation. We disagree.

The plaintiff attacks both the defendant’s March, 1989 decision summarily placing him on medical probation and that portion of the defendant’s January 2, 1990 decision requiring him to submit P-142N forms as a condition of reinstatement and retention of his suspended license.

The plaintiff’s claim with respect to the March, 1989 decision summarily placing him on medical probation is moot. The defendant’s license was suspended from August 5,1989, to May 4,1990, rendering this condition on his ability to retain his license during this period meaningless. Moreover, the postsuspension reporting requirements were not a continuation of the March, 1989 medical probation but were new requirements that became effective when the plaintiff’s license was reinstated. This conclusion is bolstered by the fact that although the term “medical probation” is used in the March, 1989 letter from the defendant to the plaintiff, it is not used in the defendant’s January, 1990 order. Because the March, 1989 medical probation terminated on August 5,1990, the plaintiffs challenge to it is moot. See Furstein v. Hill, 218 Conn. 610, 627, 590 A.2d 939 (1991); Phaneuf v. Commissioner of Motor Vehicles, 166 Conn. 449, 453, 352 A.2d 291 (1974). As such, we will not consider this claim.

We turn next to the plaintiff’s attack on the postrein-statement reporting requirements. The trial court found that the defendant’s authority to require the plaintiff to file postreinstatement medical reports was derived from General Statutes (Rev. to 1989) § 14-36 (e), which states in pertinent part: “If any applicant [for a Connecticut driver’s license] suffers from any physical defect or from any disease which might affect the operation by him of a motor vehicle, the commissioner may require the applicant to demonstrate personally that, notwithstanding such defect or disease, he is a proper person to operate a motor vehicle, and he may further require a certificate of such applicant’s condition .... A license, containing such limitation as the commissioner deems advisable, may be issued in any case . . . .” The plaintiff first claims that the trial court improperly relied on this statute because he was not an applicant for a Connecticut driver’s license. The trial court properly relied on this statute. The defendant’s January, 1990 order states that the plaintiff’s license was to remain suspended until May 4, 1990, when he would be “eligible” for reinstatement. The order clearly contemplates that the plaintiff would be applying for reinstatement of his license after that date. For the purposes of the postreinstatement reporting requirements, therefore, the plaintiff was an applicant as that term is used in the statute.

The plaintiff next claims that the statute, by its express terms, applies only to those applicants “who [have] not held a Connecticut motor vehicle operator’s license during the preceding two years . . . .” Although the plaintiff accurately quotes this statutory language, his reliance on it is misplaced. The quoted passage is taken from the first portion of General Statutes (Rev. to 1989) § 14-36 (e), which states in pertinent part: “Before granting a license to any applicant who has not held a Connecticut motor vehicle operator’s license during the preceding two years, the commissioner shall require the applicant to demonstrate personally to him . . . that the applicant is a proper person to operate motor vehicles of the class for which he has applied, has sufficient knowledge of the mechanism of the motor vehicles to ensure their safe operation by him and has satisfactory knowledge of the laws concerning motor vehicles and the rules of the road. If any such applicant has held a license from a state . . . where a similar examination is required . . . the commissioner may waive part or all of the examination in his discretion. . . .” The language referring to an applicant who has not held a Connecticut driver’s license during the preceding two years merely prohibits the defendant from waiving the examination requirement for such a person. It does not limit the class of applicants on whom the defendant may impose medical reporting requirements.

Our conclusion that the postreinstatement medical reporting requirements are distinct from the March, 1989 decision placing the plaintiff on medical probation leads us to reject the plaintiff’s remaining challenges to the postreinstatement reporting requirements as well. The plaintiff apparently claims that the trial court improperly determined that General Statutes (Rev. to 1989) § 14-36 (e) controls this case because the plaintiff was an operator, not an applicant, at the time of the decision in March, 1989, to place him on medical probation. He further claims that even if § 14-36 (e) applies, the defendant failed to comply with its terms because he failed to ask the plaintiff to demonstrate that he was a “proper person” to operate a motor vehicle before placing him on medical probation in March, 1989. Because each claim either purports to attack the March, 1989 medical probation, the validity of which is moot, or rests on the false premise that the postrein-statement reporting requirements were merely an extension of the March, 1989 medical probation, the plaintiff cannot prevail on either of them.

II

The plaintiff’s second and fourth claims pertain only to the defendant’s decision to suspend the plaintiff's license. Because the suspension period has expired and the plaintiff’s license has been reinstated, these claims are moot.

Although the parties do not raise the mootness issue, we do so sua sponte because mootness implicates this court’s subject matter jurisdiction. See Gagnon v. Planning Commission, 24 Conn. App. 413, 415, 588 A.2d 1385, cert. granted, 219 Conn. 902, 593 A.2d 129 (1991). The existence of an actual controversy is an essential requisite of appellate jurisdiction. State v. Haynes, 25 Conn. App. 472, 478, 595 A.2d 902 (1991). “It is not the province of appellate courts to decide moot questions when no practical relief can follow from their determination.” Furstein v. Hill, supra. We must determine, therefore, whether the plaintiff may gain any practical relief in the event that we decide these issues in his favor. Id.; Phaneuf v. Commissioner of Motor Vehicles, supra, 452.

In cases involving criminal convictions, even where the sentence has been served fully, the collateral consequences that result from the conviction of a crime will insulate the appeal from a mootness challenge. Pennsylvania v. Mimms, 434 U.S. 106, 108 n.3, 98 S. Ct. 330, 54 L. Ed. 2d 331 (1977); Shays v. Local Grievance Committee, 197 Conn. 566, 572 n.4, 499 A.2d 1158 (1985). A driver’s license suspension, however, “does not have the effect of a conviction, nor would [it] entail any of the collateral legal disabilities ordinarily produced by conviction of a criminal offense.” Phaneuf v. Commissioner of Motor Vehicles, supra, 453. Where, as here, the plaintiff has failed to demonstrate that points leading to future suspensions have been entered on his record, we are “unable to perceive any collateral legal consequences which would be dispelled or remedied by an order of the court reversing the defendant’s order.” Id. Thus, each of the plaintiff’s challenges to his license suspension became moot when his driver’s license was reinstated. See id., 454.

Ill

The plaintiff next argues that the defendant’s decision to place him on medical probation violated the equal protection clause of the Connecticut constitution, article first, §§ 1 and 20. We disagree.

Article first, § 20, as amended by article twenty-one of the amendments to the Connecticut constitution, provides in pertinent part: “No person shall be denied the equal protection of the law nor be subjected to segregation or discrimination in the exercise or enjoyment of his or her civil or political rights because of . . . physical or mental disability.” The defendant, in placing the plaintiff on medical probation, clearly singled him out on the basis of a physical or mental disability. Our constitution does not, however, forbid all discrimination based on a person’s physical or mental disability. Rather, once discrimination has been uncovered, we must determine the appropriate degree of judicial scrutiny to apply. Ryszkiewicz v. New Britain, 193 Conn. 589, 596, 479 A.2d 793 (1984). “ ‘If, in distinguishing between classes, the statute either intrudes on the exercise of a fundamental right or burdens a suspect class of persons, the court will apply a strict scrutiny standard wherein the state must demonstrate that the challenged statute is necessary to the achievement of a compelling state interest. . . .’” Harbor Ins. Co. v. Groppo, 208 Conn. 505, 509, 544 A.2d 1221 (1988); Ryszkiewicz v. New Britain, supra. Because persons with physical or mental disabilities belong to a suspect class under the Connecticut constitution, the defendant’s action must be subjected to strict constitutional scrutiny.

We recognize that the strict scrutiny standard of review is more exacting than that applied by the United States Supreme Court when reviewing a disability based classification in light of the equal protection clause of the United States constitution. See Cleburne v. Cleburne Living Center, 473 U.S. 432, 105 S. Ct. 3249, 87 L. Ed. 2d 313 (1985). Article first, § 20, of the Connecticut constitution, however, unlike the fourteenth amendment to the United States constitution, expressly forbids discrimination based on a person’s physical or mental disability. Although the equal protection clauses of both the United States and Connecticut constitutions have been interpreted to provide identical protections in some instances; see State v. Leary, 217 Conn. 404,409, 587 A.2d 85 (1991); Plourde v. Liburdi, 207 Conn. 412, 418, 540 A.2d 1054 (1988); our Supreme Court has recognized that Connecticut’s equal protection clause provides protections beyond those contained in its federal counterpart. This is particularly so where the text of the Connecticut constitution is distinguishable from its federal counterpart in some material respect. See Horton v. Meskill, 172 Conn. 615, 639-53, 376 A.2d 359 (1977); compare Dydyn v. Department of Liquor Control, 12 Conn. App. 455, 464, 531 A.2d 170, cert. denied, 205 Conn. 812, 532 A.2d 586 (1987), cert. denied, 485 U.S. 977, 108 S. Ct. 1272, 99 L. Ed. 2d 483 (1988).

The framers of the disability clause intended our courts to subject disability based classifications to strict scrutiny. See R. Berdon, “Connecticut Equal Protection Clause: Requirement of Strict Scrutiny When Classifications are Based Upon Sex, Physical Disability or Mental Disability,” 64 Conn. B.J. 386, 401-402 (1990). During a debate on the disability amendment in the House of Representatives, Representative Richard D. Tulisano expressly stated that the amendment was intended to guarantee that strict scrutiny is applied to such classifications. 26 H.R. Proc., Pt. 11, 1983 Sess., p. 3975. Similarly, Representative Christine M. Niedermeier argued that the disabilities clause would require the state to prove that the challenged discrimination is required by a compelling state interest. Id., 3991. Representative Naomi K. Cohen opined that the amendment would require the courts to apply the “strictest scrutiny.” Id., 3993. Finally, Senator Howard T. Owens, Jr., noted that “[wjhere the court finds significant state action it will subject segregation or discrimination complaints to strict judicial scrutiny and the constitutional protection shifts the burden to the state to show compelling reasons if and when there’s discrimination.” 26 S. Proc., Pt. 9, 1983 Sess., p. 3170. We conclude, on the basis of the text and history of article first, § 20, that the disparate treatment in this case must be subjected to strict scrutiny. Thus, the defendant’s action in placing the plaintiff on medical probation will be upheld only if it is necessary to achieve a compelling state interest; Harbor Ins. Co. v. Groppo, supra; and is narrowly tailored toward achieving that goal. Laden v. Warden, 169 Conn. 540, 548-49, 363 A.2d 1063 (1975).

The state’s compelling interest in highway safety is not open to serious dispute. See Burns v. Barrett, 212 Conn. 176, 184, 561 A.2d 1378, cert. denied, 493 U.S. 1003, 110 S. Ct. 563, 107 L. Ed. 2d 558 (1989). Further, placing the plaintiff on medical probation was necessary to protect this interest. In cases such as this, where an individual’s fitness to drive safely reasonably is called into question, the defendant must satisfy himself that public safety is not jeopardized by allowing that person to drive. Where the defendant has reason to believe that a person may experience periodic seizures, this compelling interest in public safety requires the defendant to monitor the individual’s medical condition.

The reporting requirements placed on the plaintiff are both necessary and narrowly tailored to achieve this goal. The defendant has allowed the plaintiff to drive during the reporting period. The reportiifg requirement is limited to a fixed three year period. Lastly, the plaintiff is not required to make generalized medical disclosures, but is required to report only those facts pertinent to his neurological disorder. Because the medical reporting requirements are necessary to achieve a compelling state interest and are narrowly tailored to accomplish that goal, they do not violate the equal protection clause of the Connecticut constitution, article first, § 20.

IV

The plaintiff’s remaining claim is that the trial court improperly failed to consider the effect of the defendant’s illegal ex parte communications on the plaintiff’s substantial rights. We disagree.

The plaintiff bases this claim on his assertion that although he claimed before the trial court that the defendant engaged in illegal ex parte communications with members of the department’s adjudications unit and various other witnesses, including but not limited to Johnson, the trial court made no findings of fact with respect to this issue. He further notes that once a party establishes that an improper ex parte communication occurred, as he claims that he has established, the burden shifts to the opposing party to demonstrate that its opponent was not prejudiced by the prohibited communication. See Henderson v. Department of Motor Vehicles, 202 Conn. 453, 460, 521 A.2d 1040 (1987). Because the presumption of prejudice has not been rebutted, he concludes, “the defendant’s decisionmak-ing process must be considered tainted and the ultimate judgment of the agency unfair and void.” He further claims that the trial court’s failure to address the issue has foreclosed effective judicial review of the proceedings.

“Our rules of practice require that the trial court state its decision on each issue in the case and its conclusion as to each claim of law raised by the parties. Practice Book § 4059.” McLaughlin v. Bronson, 206 Conn. 267, 277, 537 A.2d 1004 (1988). Nonetheless, the burden remains with the appellant to demonstrate that harmful error was committed. Id., 278. The plaintiff did not file a motion for articulation with the trial court. “In the absence of a motion for articulation; see Practice Book § 4051; ‘it would be sheer speculation for this court to assume that the trial court applied the incorrect legal standard.’ State v. Crumpton, 202 Conn. 224, 232, 520 A.2d 226 (1987).” DiBerardino v. DiBerardino, 213 Conn. 373, 385, 568 A.2d 431 (1990). “ ‘It is important to recognize that a claim of error cannot be predicated on an assumption that the trial court acted incorrectly.’ ” Rosenblit v. Danaher, 206 Conn. 125,134, 537 A.2d 145 (1988), quoting Barra v. Ridge-field Card & Gift Gallery, Ltd., 194 Conn. 400, 407, 480 A.2d 552 (1984); Giammattei v. DiCerbo, 135 Conn. 159, 162, 62 A.2d 519 (1948). “Because the deficiency in the record regarding this claim should have been remedied by the [plaintiff], we will not remand the case to the trial court for rectification.” McLaughlin v. Bronson, supra.

The trial court reasonably could have found that the communications at issue, if they occurred, were not improper ex parte communications under General Statutes § 4-181. Alternatively, the court reasonably could have found that even if the communications were improper, they were harmless because Grady, the hearing officer who presided over the suspension hearing, had no knowledge of them. We will not presume that the trial court’s judgment was based on a misapplication of the law.

The judgment is affirmed.

In this opinion the other judges concurred.


source: Caselaw Access Project

author: La very, J.

license: Public Domain

text:
    D.S. Associates et al. v. Planning and Zoning Commission of the Town of Prospect et al.
    (10458)
    O’Connell, Lavery and Landau, Js.

      Argued February 14
    decision released May 12, 1992

      N. Warren Hess III, for the appellants (plaintiffs).

      Maureen Danehy Cox, with whom, on the brief, was Brian T. Henebry, for the appellees (defendants).
   La very, J.

This is an appeal by the plaintiffs Twin Pines Development Corporation (Twin Pines) and D.S. Associates, from the trial court’s dismissal of their appeal from the denial by the defendant Prospect planning and zoning commission of an application for subdivision approval. Twin Pines claims that the trial court improperly (1) dismissed its appeal after determining that it was an aggrieved party, (2) determined that the commission lacked jurisdiction to consider the subdivision application, and (3) dismissed its appeal, because the commission accepted and processed the application for subdivision approval. Twin Pines argues that there was merely a technical error on the face of the application that had no bearing on the commission’s decision on the subdivision application. We affirm the judgment of the trial court.

The following facts are pertinent to this appeal. D.S. Associates is a partnership consisting of four partners, who are the shareholders in Twin Pines. On July 29, 1988, acting through its authorized agent Robert L. Jones, D.S. Associates filed an application for a subdivision of land located partially in Prospect and partially in Naugatuck. The application listed D.S. Associates as the owner of record. D.S. Associates had acquired title by deed dated December 30, 1986, and recorded in Prospect’s land records on February 4, 1987. The commission treated D.S. Associates as the owner of the property at all times—in its correspondence, in the minutes of its meeting, in its legal notice for public hearing on the application, at the hearing on the application, and in its publication of the notice of its decision.

By deed dated May 31, 1988, and recorded on June 2, 1988, however, D.S. Associates had conveyed title to Twin Pines. Twin Pines was never involved in the proceedings before the commission. Further, the commission never considered Twin Pines an applicant for subdivision approval or a party to the application proceedings. Neither Twin Pines nor its agent signed the application. Twin Pines did not seek to substitute itself for D.S. Associates before the commission, nor did it even identify itself to the commission. The commission denied D.S. Associates’ application, citing twelve reasons for its decision.

D.S. Associates and Twin Pines then appealed to the trial court. The trial court found that D.S. Associates was not aggrieved since it had no interest in the property either at the time of or at any time subsequent to the application. The trial court further found that Twin Pines was an aggrieved party as the owner of record, but that the commission lacked subject matter jurisdiction to consider the application because the zoning regulations require an owner or an authorized agent of the owner to apply for the subdivision approval.

The trial court properly found that Twin Pines is an aggrieved party because it is the owner of record of the property at issue and has been the owner since before the date of the application. Bossert Corporation v. Norwalk, 157 Conn. 279, 285, 253 A.2d 39 (1968).

The dispositive issue in this appeal is whether Twin Pines has standing. Standing implicates the court’s subject matter jurisdiction. Planning & Zoning Commission v. Gael, 9 Conn. App. 538, 542-43, 520 A.2d 246, cert. denied, 203 Conn. 803, 522 A.2d 294 (1987). “When standing is put in issue, the question is whether the person whose standing is challenged is a proper party to request an adjudication of the issue and not whether the controversy is otherwise justiciable, or whether, on the merits, the plaintiff has a legally protected interest that the defendant’s action has invaded.” Mystic Marinelife Aquarium, Inc. v. Gill, 175 Conn. 483, 492, 400 A.2d 726 (1978).

This is one of those rare cases in which the plaintiff is aggrieved but does not have standing. General Statutes § 8-26 provides in pertinent part: “All plans for subdivisions . . . shall be submitted to the commission with an application in the form to be prescribed by it.” Section III B of the Prospect subdivision regulations provides in relevant part: “Final Subdivision Application. 1. Application for approval of a plan of a subdivision shall be made by the owner(s) of record of the subject property or by an authorized agent, in writing on a form furnished by the Commission.”

D.S. Associates is a partnership, Twin Pines is a corporation. Even though the shareholders of the corporation and the partners are all the same, the partnership and the corporation have a separate legal identity and are separate persons under the law. Fidelity Trust Co. v. BVD Associates, 196 Conn. 270, 279-81, 492 A.2d 180 (1985). “ ‘If they adopt the corporate form, with the corporate shield extended over them to protect them against personal liability, they cease to be partners and have only the rights, duties and obligations of stockholders. They cannot be partners inter sese and a corporation as to the rest of the world.’ ” Karanian v. Maulucci, 185 Conn. 320, 324, 440 A.2d 959 (1981).

Twin Pines, a separate legal entity, did not apply for a subdivision of the property, nor did it authorize an agent to do so. “Where zoning ordinances have not specifically required owners to apply or to authorize the application, this court has sustained the issuance of permits to persons who were not owners but who did have substantial interests in the subject property.” (Emphasis added.) Richards v. Planning & Zoning Commission, 170 Conn. 318, 321-22, 365 A.2d 1130 (1976). In the present case, the commission must prevail on both grounds. The zoning regulations did specifically require the property owner or its agent to apply for subdivision approval. Consequently, Twin Pines’ failure to comply with the regulations cannot be remedied by their having a substantial interest in the property. Further, the applicant, D.S. Associates, had no interest in the property either at the time of or subsequent to the application, and Twin Pines was at no time either a party to or a participant in the proceedings before the commission.

The judgment is affirmed.

In this opinion the other judges concurred.

       D.S. Associates had no interest in the property at the time the application was filed by its authorized agent or at any time thereafter. “[I]n order to retain standing as an aggrieved person, a party must have and must maintain a specific, personal and legal interest in the subject matter of the appeal throughout the course of the appeal.” Primerica v. Planning & Zoning Commission, 211 Conn. 85, 94, 558 A.2d 646 (1989). Therefore, the trial court properly found that D.S. Associates was not aggrieved and properly dismissed the appeal as to it. Twin Pines’ brief does not include any claims on behalf of D.S. Associates, so its claims are deemed abandoned. State v. Ramsundar, 204 Conn. 4,16, 526 A.2d 1311, cert. denied, 484 U.S. 955, 108 S. Ct. 348, 98 L. Ed. 2d 374 (1987).

       D.S. Associates’ subdivision application submitted in Naugatuck was granted prior to the hearing before the commission in Prospect, and is not the subject of this appeal.


author: Lavery, J.

text:
    David A. Schupp, Administrator (Estate of David A. Schupp, Jr.) v. Steven F. Grill
    (10216)
    Lavery, Landau and Heiman, Js.
    Argued February 13
    decision released May 12, 1992

      Robert M. Shields, Jr., with whom was William R. Moller, for the appellant (plaintiff).

      Constance L. Epstein, with whom, on the brief, were Richard J. Kenny and Jack G. Steigelfest, for the appellee (defendant).
   Lavery, J.

The plaintiff, David A. Schupp, administrator of the estate of David A. Schupp, Jr., appeals from a judgment rendered in favor of the defendant. On appeal, he claims that the trial court improperly instructed the jury on the evaluation of expert testimony and on the responsibilities of a pedestrian on a roadway. We affirm the trial court’s judgment.

The jury could reasonably have found the following facts. On February 25, 1988, the plaintiffs decedent was jogging on Floydville Road, a two lane highway that runs east and west in East Granby. Each travel lane is fourteen feet wide, with an additional two foot shoulder area adjacent to the westbound lane. The only highway marking is a double yellow line dividing the eastbound and westbound lanes.

The defendant testified that at the time of the accident he was traveling westbound at approximately forty to forty-five miles per hour when he rounded a curve and saw the decedent jogging on the center double line, about two car lengths in front of him. There was no posted speed for westbound traffic on that portion of the road, but the state police determined the area speed limit to be approximately 30 to 35 miles per hour. The decedent was wearing a jogging vest with reflective stripes on the front and back. The defendant braked and swerved his car to the left into the eastbound lane, but nevertheless struck the decedent with the right front of his automobile. The decedent died instantly. The accident occurred at approximately 6:42 p.m. At that time it was dark and there were no streetlights or other sources of light illuminating Floydville Road. Subsequent investigation disclosed skid marks in the eastbound lane that were produced by the defendant’s automobile when he attempted to avoid the decedent, but investigators were unable to determine the exact point of impact. The plaintiff’s complaint alleged that the defendant’s negligence caused the decedent’s injuries and subsequent death. The defendant asserted as a special defense that the decedent’s own negligence caused his injuries.

At trial, the only eyewitness testimony regarding the accident was that of the defendant. He testified that he did not turn to the right to avoid the decedent because there was no place to go other than the woods or a bank on the side of the road. The plaintiff called the investigating officers as witnesses to provide a factual foundation, and then called two expert witnesses. The first expert estimated the speed of the defendant’s automobile at the time of the accident ranged from fifty-six to sixty-seven miles per hour. The second expert estimated the speed as ranging from sixty-seven to seventy-two miles per hour, and determined that the defendant’s automobile was completely in the eastbound lane when the impact occurred. The plaintiff did not submit interrogatories to the jury in order to determine its findings on either the plaintiff’s claim or on the defendant’s special defense, and the jury rendered a general verdict for the defendant. The plaintiff subsequently appealed to this court. The defendant argues that the general verdict rule requires affirmance of the trial court’s judgment. We agree.

“ ‘The so-called general verdict rule provides that, if a jury renders a general verdict for one party, and no party requests interrogatories, an appellate court will presume that the jury found every issue in favor of the prevailing party. Stone v. Bastarche, 188 Conn. 201, 204, 449 A.2d 142 (1982); Collucci v. Pinette, 185 Conn. 483, 489, 441 A.2d 574 (1981). The rule applies whenever a verdict for one party could reasonably be rendered on one or more distinct causes of action; see Matthews v. F.M.C. Corporation, 190 Conn. 700, 706, 462 A.2d 376 (1983); or distinct defenses. See Royal Homes, Inc. v. Dalene Hardwood Flooring Co., 151 Conn. 463, 466, 199 A.2d 698 (1964). A party desiring to avoid the effects of the general verdict rule may elicit the specific grounds for the verdict by submitting interrogatories to the jury. Alternatively, if the action is in separate counts, a party may seek separate verdicts on each of the counts.’ Finley v. Aetna Life & Casualty Co., 202 Conn. 190, 202-203, 520 A.2d 208 (1987); see also Hall v. Burns, 213 Conn. 446, 484-85 n.9, 569 A.2d 10 (1990).” Spitzer v. Haims & Co., 217 Conn. 532, 551-52, 587 A.2d 105 (1991).

The plaintiff argues that the general verdict rule is inapplicable because the trial court improperly charged the jury regarding the evaluation of expert testimony and the duties of a pedestrian in a roadway. “It is well established that a charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding [it] to a correct verdict in the case. . . . The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge. . . . The test to be applied to any part of a charge is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result. ...” (Citations omitted; internal quotation marks omitted.) State v. Dyson, 217 Conn. 498, 501-502, 586 A.2d 610 (1991).

The plaintiff first claims that the trial court’s instruction to the jury as to the evaluation of expert testimony was one-sided. At the conclusion of that portion of the charge dealing with expert testimony, the court instructed: “It is for you, the jury, to accept or reject, in part or in whole, the testimony of any witness. . . . Then you, alone, as the jury, must evaluate the evidence and facts presented to you, consider the relation of the opinions that have been provided by expert witnesses in reference to these facts, and then weigh the value of each witness’s testimony accordingly.” The jury was thus properly instructed that it was free either to accept or to reject the experts’ testimony. A review of the court’s instructions on expert testimony reveals that they were proper and correct.

The plaintiff’s remaining claim is that the court’s charge concerning the responsibilities of a pedestrian crossing a highway and leaving a safety zone was erroneous and without evidentiary basis. The plaintiff incorrectly claims that the court charged on violations of General Statutes §§ 14-300b and 14-300c. The plaintiff argues that such a charge was improper because the defendant’s special defense asserting contributory negligence did not allege that the decedent had either crossed the street or improperly left a safety zone adjacent to the highway prior to the accident. We conclude that although the court used some of the words and phrases from the statutes, it correctly presented the common law regarding the duty of a pedestrian on a highway.

It has long been recognized that it is the duty of a pedestrian to exercise reasonable care, not only to avoid known dangers, but to discover those to which his conduct might expose him, and to be watchful of his surroundings. Krupien v. Doolittle, 117 Conn. 534, 538, 169 A. 268 (1933). Drivers, however, are not held to as high a degree of care to anticipate the presence of pedestrians in the roadway outside of crosswalks. Caschetto v. Silliman & Godfrey Co., 126 Conn. 22, 25, 9 A.2d 286 (1939). Indeed, “[w]hile a pedestrian may ordinarily cross a street at any place, it is the law that ‘in doing ... so he is bound to exercise care commensurate to the increased danger incident to being in a place where pedestrians do not usually go, and, consequently, where drivers need not take the same precaution in anticipation of their presence that they are required to take at regular crossings.’ . . .’’(Citations omitted.) Hizam v. Blackman, 103 Conn. 547, 552-53, 131 A. 415 (1925).

Because drivers of automobiles are less likely to anticipate the presence of pedestrians away from crosswalks, “both driver and pedestrian must exercise care commensurate with the danger involved. . . .” Miller v. Stamford Transit Co., 130 Conn. 63, 66-67, 32 A.2d 53 (1943); Degnan v. Olson, 136 Conn. 171, 175, 69 A.2d 642 (1949).

The mandates of §§ 14-300b (a) and 14-300c (b) derive from, and are identical to, the long-standing requirements of the common law. In Atkins v. Varrone, 127 Conn. 156,14 A.2d 731 (1940), our Supreme Court considered General Statutes (Rev. to 1930) § 6191, the predecessor to the current § 14-300c (b), and held it to require nothing more than the common law requires. “Section 6191 makes it an offense punishable by fine for a pedestrian to use a highway negligently or recklessly, or to recklessly disregard his own safety or the safety of any person by the manner of his use of a highway. We have held that this statute establishes no other standards as regards negligence than those of the common law.” Id., 159.

The plaintiffs evidentiary claim is equally without merit. Taking the evidence in the light most favorable to the defendant; Champagne v. Raybestos-Manhattan, Inc., 212 Conn. 509, 553, 562 A.2d 1100 (1989); the decedent was running on the double yellow line in the middle of an unlighted road toward the defendant’s westbound automobile. It was 6:42 p.m. and dark. There are no special rules for joggers. They have the same rights, duties and obligations under the law as any other pedestrians. There was more than sufficient evidence to sustain the defendant’s special defense that the plaintiff was contributorily negligent.

The general verdict rule requires that the jury found every issue in the favor of the prevailing party. Spit-zer v. Haims & Co., supra, 552; Goral v. Kenney, 26 Conn. App. 231, 238, 600 A.2d 1031 (1991). We therefore presume that (1) the plaintiff did not prove that the defendant was negligent, (2) the plaintiff did not prove that the defendant’s acts were the proximate cause of the decedent’s injuries, and (3) the decedent’s injuries were caused by his own negligence.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 14-300b provides in relevant part: “pedestrian use OF CROSSWALKS AND ROADWAYS, (a) Each pedestrian crossing a roadway at any point other than within a crosswalk marked as provided in subsection (a) of section 14-300 or any unmarked crosswalk or at a location controlled by police officers shall yield the right of way to each vehicle upon the roadway. Each pedestrian crossing a roadway at a point where a pedestrian tunnel or overhead pedestrian crossing has been provided shall yield the right-of-way to each vehicle upon such roadway.”

       General Statutes § 14-300c provides in relevant part: “(a) . . . Where a sidewalk is not provided adjacent to a roadway each pedestrian walking along and upon such roadway shall walk only on the shoulder thereof and as far as practicable from the edge of such roadway. Where neither a sidewalk nor a shoulder adjacent to a roadway is provided each pedestrian walking along and upon such roadway shall walk as near as practicable to an outside edge of such roadway and if such roadway carries motor vehicle traffic traveling in opposite directions each pedestrian walking along and upon such roadway shall walk only upon the left side of such roadway.
      “(b) No pedestrian shall suddenly leave a curb, sidewalk, crosswalk or any other place of safety adjacent to or upon a roadway and walk or run into the path of a vehicle which is so close to such pedestrian as to constitute an immediate hazard to such pedestrian. . . .”

       The plaintiff challenges the following portion of the trial court’s charge on the duties of a pedestrian on a roadway. “The defendant, Steven A. Grill, has also alleged that the plaintiffs decedent, David Schupp, Jr., placed himself directly in the path of the Grill vehicle although he knew or should have known that the Grill vehicle was approaching, and that he failed to remove himself from the path of the defendant’s vehicle. A pedestrian has a right to be upon any portion of the highway provided he has due respect for the rights of others. In this case you should consider Mr. Schupp, Jr., to be a pedestrian for the purposes of Connecticut law. Pedestrians have a right to cross between streets in the absence of local ordinances. However, if they undertake to cross the street at any other place than that which is usually provided for crossing, it is the rule that in so doing they are bound to use care commensurate with the increased danger incident to being in a place where pedestrians do not usually go.
      “The duty of a person crossing a highway is the duty to use reasonable care to guard himself from injury, that is to say, the care which an ordinarily prudent person would use under the circumstances. He must use such care to watch out for oncoming traffic likely to endanger him. If he sees a car approaching, he must not attempt to cross in front of it unless an ordinarily prudent person would conclude, assuming as he had a right to do, that the driver would use reasonable care in the operation of the car, and that he could cross in safety. If he is already in the street when the car approaches, he must use reasonable care to avoid injury by stopping, stepping back or hurrying forward out of its course or in some other way. It is for you to determine whether or not the conduct of Mr. Schupp was that of an ordinarily prudent person situated as he was situated.
      “The defendant, Steven F. Grill, has also alleged that the plaintiff’s decedent failed to grant the right-of-way to his vehicle. Our law provides that each pedestrian crossing a roadway at a point other than within a crosswalk shall yield the right-of-way to each vehicle upon the roadway. Our law further provides that where a sidewalk is not provided adjacent to a roadway, each pedestrian shall walk on the shoulder thereof and as far as practicable from the edge of such roadway. If there is no shoulder to the roadway the law further provides that the pedestrian shall walk as nearly as practicable to an outside edge of the roadway. Our law further specifically provides that no person shall leave any other place of safety adjacent to a roadway and run or walk into the path of a vehicle which is so close to the pedestrian as to constitute an immediate hazard to that pedestrian.
      “The defendant, Mr. Grill, has further alleged that the plaintiff’s decedent recklessly used the highway as a pedestrian. Our law provides that one using the highway as a pedestrian may not recklessly disregard his safety and must use due care which an ordinarily prudent person would use under the circumstances.”

       General Statutes (Rev. to 1930) § 6191 provides: “use of highways by pedestrians. Any pedestrian who shall use any street or highway negligently or recklessly or shall wilfully fail to obey the signal of any traffic officer or shall recklessly disregard his own safety or the safety of any person by the manner of his use of any street or highway, shall be fined not less than two nor more than twenty-five dollars.”


author: Foti, J.

text:
    State of Connecticut v. William Henry
    (9502)
    O’Connell, Foti and Lavery, Js.

      Argued February 10
    decision released May 12, 1992

      Derby F. Anderson, special public defender, for the appellant (defendant).

      Marjorie Allen Dauster, deputy assistant state’s attorney, with whom, on the brief, were John M. Bailey, state’s attorney, and Rosita Creamer, senior assistant state’s attorney, for the appellee (state).
   Foti, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of the crime of manslaughter in the first degree with intent to cause serious physical injury, in violation of General Statutes § 53a-55 (a) (l). The defendant claims that (1) prose-cutorial misconduct at trial and at the sentencing hearing deprived him of his constitutional right to a fair trial under the due process clauses of the state and federal COnstitutionS, and (2) the trial court improperly admitted prejudicial hearsay evidence. We affirm the trial court’s judgment.

The facts, as relevant to the appeal, are as follows. On June 27, 1988, the defendant, William Henry, argued with Henry Louis Manson at the apartment they shared. Also present at the apartment was a third man, Barry Isaac. The defendant stabbed Manson eight times with a butcher knife and Manson fled into the bathroom where he died. The defendant asked Isaac to call an ambulance. The defendant then left the apartment, hiding the knife behind the carpet on a riser of the staircase between the second and third floors. He then went to a telephone booth and, after calling his sister, called the police to report the incident. After his arrest and transport to police headquarters, Henry gave a statement to the police describing the stabbing.

At trial, the defendant offered a defense that he was under extreme stress because of a history of violence in his relationship with Manson, which he said resulted in numerous fights. He claimed that Manson had threatened him with a pistol and that he feared Manson.

During his direct examination, Isaac testified that when he heard Manson scream he turned and witnessed the stabbing. He indicated that he did not hear anything Manson said other than the scream. During his cross-examination, defense counsel gave Isaac a copy of a written statement he had given to the police on the night of the stabbing to refresh his recollection. That statement indicated that Isaac had heard Manson say to the defendant, “Why do you always pull that knife out on me, can’t you do anything without that knife?” Isaac’s cross-examination dealt with facts unrelated to this question.

On cross-examination of the defendant, the state inquired whether Manson had asked this question. The defendant responded that he did not recall Manson’s saying that. After the prosecution asked whether he had ever threatened Manson with a knife prior to the stabbing, the defendant stated that he had once pulled a butter knife on Manson. Defense counsel did not object.

Peter Zeman, a psychiatrist who testified as an expert witness on the defendant’s behalf, indicated that the defendant suffered from alcohol dependence, cocaine dependence, marihuana abuse and self-defeating personality traits. It was his opinion that the defendant was under extreme stress at the time of the stabbing, and was agitated, distraught, hysterical, and fearful for his own safety. He based his conclusion on five interviews with the defendant, the police reports and statements, the autopsy report, the defendant’s medical history and other documents given to him by the defendant’s attorney. The state cross-examined Zeman extensively about the factual basis of his conclusion as to the defendant’s state of mind at the time of the stabbing. Zeman acknowledged that although he was aware that there was a witness to the stabbing, he made no attempt to interview him. The prosecution asked Zeman to what extent he had challenged the defendant’s version of the incident by comparing it to inconsistent facts contained in Isaac’s written statement. Zeman was asked, “And didn’t Barry Isaac say in his statement that he heard Louis [Manson] say to the defendant while they were arguing ‘you can’t do anything without that knife, why do you always pull it out on me?’ ” The defendant objected on the ground that Isaac did not testify to this fact. The following colloquy took place:

“State’s Attorney: I’m questioning the doctor about his knowledge at the time.
“The Court: The doctor has indicated [a] two page statement that he used in coming to his opinion and evaluation, however, I caution counsel, unless this is in Barry Isaac’s statement, it [is] improper. He is— unless it’s been in evidence.
“State’s Attorney: Well, Your Honor, I don't know how I can cross-examine the doctor about how he used the information that he had. I’m perfectly willing—I’ll offer it into evidence. I have no objection. I offer it at this time.
“Defense Counsel: Your Honor, I object, it’s hearsay to the claim. It’s not being offered for the truth of the matter.
“ The Court: It’s not being used as hearsay. It’s being used, in part, for the doctor forming his opinion. Correct by the virtue of representation of counsel, I’m going to overrule the objection.
“Defense Counsel: Exception.
“The Court: Exception may be noted.
“State’s Attorney: I offer this as state’s exhibit F, Your Honor.
“The Court: Well, why don’t we get the doctor’s answer first?”

The state did not offer Isaac’s written statement as an exhibit following the answer given by the witness.

The state also asked Zeman to what extent he had questioned the defendant about previously cutting Manson with a knife. Zeman recalled that on August 7, 1989, he had asked the defendant whether in the past he had ever threatened Manson with a knife, and that the defendant had told him that on one prior occasion, or perhaps more, the defendant had grabbed a butter knife. The state then asked the witness:

“Q. All right, you were aware that though according to Barry Isaac’s statements that Mr. Manson said to him you can’t do anything without that knife; why do you always pull it out on me?
“A. That’s right.
“Q. And what is your understanding of what a butter knife is, by the way?
“A. A butter knife is usually a small knife, not sharp on the edge, that may have a rounded point on it, depending upon the type of butter knife.
“Q. Would you look at [the murder weapon] Dr. Zeman, and tell me if that purports with your understanding of what a butter knife is?
“A. No, it does not.”

The defendant did not object to this use of Isaac’s written statement or Isaac’s allegation regarding Manson’s question.

Zeman also explained under cross-examination that he scheduled a final interview with the defendant for March 21, during the trial, to discuss the incident with the butter knife, among other things. Zeman said that this topic was on his list because, in his notes of a previous interview, he had seen the reference to an incident with the butter knife, and wanted to clarify whether the defendant had ever used the larger knife. Zeman testified that he recalled from reading Isaac’s written statement that Isaac heard the victim accuse the defendant of always using a knife to threaten him. The defendant did not object to this testimony or to any use of Isaac’s written statement to cross-examine Zeman as to the basis of his opinion. The defendant did not request an instruction limiting the use of Isaac’s written statement or Isaac’s allegation regarding Manson’s question. Isaac’s written statement was not offered as an exhibit at trial.

The state also challenged the basis of the expert’s opinion by questioning him about the absence of injuries to the defendant in light of the defendant’s claim that he and the victim grappled for the knife. The state questioned Zeman as to the number of stab wounds as an indication of the defendant’s intent to kill, the causes of the defendant’s stress other than the defendant’s relationship with the victim, and whether knowledge of the defendant’s prior crimes and false statements and inconsistent statements to prison authorities about his drug use and education affected Zeman’s assessment of the defendant’s credibility.

On redirect examination, Zeman stated that his opinion was not changed by “information that was contained in Mr. Isaac’s statement that [he had] reviewed.”

In her closing argument, the assistant state’s attorney summarized the testimony of the witnesses. She limited her summary of Isaac’s testimony to his in-court testimony and did not refer to the question allegedly asked by Manson that was contained in Isaac’s written statement. As part of the summary of the defendant’s testimony, the assistant state’s attorney made the following statement: “He claims he don’t remember if Louis [Manson] said anything at the time of the stabbing, and we asked him didn’t Louis say you can’t do anything without that knife, why do you always pull it out on me. He doesn’t remember the—he says, well, he might have pulled a butter knife on Louis once before and that would explain that statement. I ask you if Louis would say you always pull that knife out on me being confronted with this knife when the last time or prior occasion the knife might have been a butter knife?”

The state also discussed Zeman’s testimony challenging the basis of the expert’s opinion. The assistant state’s attorney made the following statement:

“An example of doctor’s unquestioning acceptance of the defendant’s version is the defendant’s account of the night of the stabbing, the description of the argument that preceded it, the fact that he didn’t participate in the argument at first, that Louis [Manson] was threatening to hurt him with his fists, that Louis [Manson] physically grabbed the defendant and that both grabbed the knife. The doctor did not check what the defendant said against Barry Isaac’s statement about the arguments for the factual details and any striking by Louis [Manson]. He didn’t check it again against the autopsy report, against the hospital records for the times or against the fact that the defendant received no injuries, or against what Detective Dakin said in his report defendant told him—he would just accept unquestioningly what the defendant told him.”

The assistant state’s attorney made no other reference to Isaac’s written statement or to the question allegedly asked by Manson.

When summarizing the testimony of the medical examiner, the assistant state’s attorney stated that intent could be inferred from the number, depth, orientation and location of the stab wounds.

In the defendant’s closing argument, defense counsel referred to Isaac’s written statement when he discussed the basis of Zeman’s opinion; he did not refer to Manson’s alleged question about the knife when he summarized Isaac’s in-court testimony.

In its charge to the jury with respect to expert witnesses, the trial court listed Isaac’s written statement as one of the items on which Zeman relied. The defendant did not object or except to this portion of the jury charge.

The defendant claims that five separate instances of prosecutorial misconduct occurred during the course of the trial, including the use of inadmissible evidence after a warning by the court, two subsequent uses of Isaac’s allegation regarding Manson’s question during cross-examination of Zeman, reference to the question about the knife during closing argument and reference to that question at the sentencing hearing.

During the presentation of the defense, the trial court received a note from a juror. The jury was excused, and the juror was called into the courtroom. The juror testified that she had noticed that the assistant state’s attorney sometimes had “sort of a disdainful expression directed toward the defense and I know it’s theatrics and I know, being a law student and having gone through mock trials and stuff like that, it’s probably part of the game, I just think probably the other jurors would take that adversely, and as a reflection on defense counsel’s ability, I don’t think it’s—I just thought—I brought it up because I was concerned.” The juror stated repeatedly that the expressions would have no effect on her ability to deliberate impartially, and that she had come forward only out of her concern about the effect on the other jurors. She also stated that she had not discussed her concerns with the other jurors. The trial court instructed her that she was to decide the case solely on the evidence presented at trial, and that any facial expressions of counsel or the court were not evidence.

After the juror left the courtroom, the defense counsel and the trial court stated for the record that neither had witnessed any disdainful facial expressions by the assistant state’s attorney. The defendant did not at this time or later in the trial request any additional limiting or curative instructions.

The claims of prosecutorial misconduct are not properly preserved. The defendant seeks review solely under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). An unpreserved prosecutorial misconduct claim is not reviewable if the claimed misconduct consisted of isolated and brief episodes, did not reveal a pattern of conduct repeated throughout the trial, or conduct that was not blatantly egregious. State v. Tweedy, 219 Conn. 489, 509, 594 A.2d 906 (1991).

The first five instances of claimed prosecutorial misconduct are merely evidentiary matters and cannot be claimed to establish a violation of fundamental constitutional rights. Nor does the defendant’s claim of prosecutorial misconduct regarding disdainful facial expressions by the assistant state’s attorney warrant review. The record does not establish a pattern of conduct repeated throughout the trial or blatantly egregious conduct that deprived the defendant of a fair trial. State v. Whitfield, 21 Conn. App. 622, 628-29, 575 A.2d 1046, cert. denied, 216 Conn. 808, 580 A.2d 66 (1990). Accordingly, we decline to review these claims of error.

The defendant next claims that the trial court improperly admitted prejudicial hearsay evidence by allowing into evidence Isaac’s statement through Zeman’s testimony. We find no merit to this claim. Information on which an expert relied that is not offered for its truth but is offered to show that the expert relied on it is not hearsay and may be the subject of proper cross-examination to test the basis of that expert’s opinion. A statement offered “for the truth of the facts contained therein . . . would [be] inadmissible, unless [it] fell within an exception to the hearsay rule.” State v. Alvarez, 216 Conn. 301, 310, 579 A.2d 515 (1990). If offered not for the truth of the matter asserted, but rather for some other purpose, it is not hearsay. State v. Hull, 210 Conn. 481, 498-99, 556 A.2d 154 (1989). Isaac’s statement was introduced not for its truth but to show the basis of Zeman’s expert opinion. Therefore, it was not hearsay and was properly admitted.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant was charged with the crime of murder in violation of General Statutes § 53a-54a, but convicted of the lesser included offense.

       The defendant offers no separate analysis of his claim under the state constitution. Thus, we deem this claim abandoned and we decline to review it. State v. Negron, 221 Conn. 315, 321 n.7, 603 A.2d 1138 (1992).

       At the sentencing hearing, the assistant state’s attorney, in summarizing the evidence of the crime to the judge, stated that a witness had said that the victim stated that the defendant could not do anything without the knife. The defendant does not claim that the sentencing was improper.

       “[A] defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional error beyond a reasonable doubt.” State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).


author: Dupont, C. J.

text:
    Daniel J. Carnese v. Robert W. Middleton et al.
    (10422)
    Dupont, C. J., Foti and Freedman, Js.

      Argued February 19
    decision released May 12, 1992

      Abraham I. Gordon, with whom were Ronald D. Japha and, on the brief, Richard S. Scalo, for the appellant (plaintiff).

      Andrew P. Nemiroff, for the appellees (defendants).
   Dupont, C. J.

This is an action for rent, interest and costs of collection pursuant to a lease agreement. The plaintiff alleges that these amounts are owed to him by the defendants on the basis of their nonpayment of rent between November, 1985, and December, 1986. The trial court, Leheny, J., dismissed this case on res judicata grounds. We reverse the judgment of dismissal of the trial court, in part.

This appeal is the fourth action instituted by the plaintiff against the defendants since 1985 arising out of their relationship of landlord and tenants, respectively. The plaintiff initially served a notice to quit on the defendants on July 29,1985, and subsequently brought a summary process action. That action was withdrawn by the plaintiff on November 20, 1985.

On November 10, 1985, the plaintiff served a second notice to quit alleging nonpayment of rent, and subsequently filed a second summary process action. That action resulted in a “stipulation of compromise and settlement” (settlement agreement) that provided, inter alia, that the action was to be withdrawn, that the original written lease agreement between the parties was to be modified in certain respects but would otherwise be ratified by both parties, and that the defendants would pay “back rent in the approximate amount of $30,919.44” within thirty days of the execution of the settlement agreement. The action was withdrawn on November 24, 1986. The settlement agreement was signed by the defendants and forwarded to the plaintiff on February 3,1987. The plaintiff did not sign the document.

On September 9, 1987, the plaintiff served a third notice to quit. This notice to quit alleged a nonpayment of rent and a violation of lease terms concerning the payment of rent and rent arrears. The plaintiff thereafter commenced a third summary process action. In that summary process action, the plaintiff claimed a nonpayment of rent for the months of November, 1985, through May, 1986, and July, September and October, 1986. The plaintiff also claimed that the defendant had violated the lease by failing to pay the $30,919.44 rent arrearage set forth in the compromise agreement. On March 31, 1989, the trial court, Riefberg, J., rendered judgment in favor of the defendants in that third summary process action. In its memorandum of decision, the court found no nonpayment of rent during the relevant time period because “[t]he service of the [second] notice to quit . . . relieved the tenants of their obligation to pay 'rent’ during the pendency of the prior summary process action from November, 1985, through November, 1986.” The court also found that the settlement agreement constituted a new lease agreement between the parties notwithstanding the plaintiffs failure or refusal to sign it. The court concluded, however, that the payment of back rent called for in the agreement was not required until the execution of the agreement by the plaintiff. Because the plaintiff had not executed the agreement, the court found no violation of the lease based on the nonpayment of arrears. The plaintiff did not appeal from that judgment, and the defendants paid the $30,919.44 rent arrearage to the plaintiff after the expiration of the appeal period in that case.

The action that is the subject of this appeal was commenced in December, 1987, and is not an action for summary process. In his complaint, the plaintiff alleged that “[t]he defendants failed to pay the rents due for the months of November 1,1985, through and including the rent due for December 1,1986.” On the basis of this allegation, the plaintiff sought back rent for this period of time and interest on that unpaid rent at the rate of 15 percent as provided in the lease agreement. The plaintiff also sought attorney’s fees and costs incurred by him in the enforcement of the terms of the lease as a result of the default of the defendants during the aforementioned time period, as provided in the lease agreement.

The defendants’ answer, filed on December 18, 1987, included a special defense, which was that the parties are bound by the settlement agreement. The defendants did not assert a special defense of res judicata or collateral estoppel in their answer.

According to his trial memorandum filed before the commencement of the trial in this case, the plaintiff was the only witness expected to testify in his case-in-chief. After the plaintiff testified on direct examination and during cross-examination of him by the defendants, the defendants moved orally to dismiss the action on res judicata grounds pursuant to Practice Book § 302.* ** The trial court granted the motion and dismissed the matter as res judicata. This appeal followed.

I

Before addressing the plaintiffs arguments, we note as a preliminary matter that the resolution of this appeal turns on the application of the doctrine of collateral estoppel, not the doctrine of res judicata. “Issue preclusion or collateral estoppel can be distinguished from claim preclusion or res judicata. Issue preclusion is the doctrine that bars the relitigation of an issue of ultimate fact by the same parties upon a different cause of action. ... By contrast, under the doctrine of res judicata, or claim preclusion, a former judgment on a claim, if rendered on the merits, is an absolute bar to a subsequent action on the same claim. A judgment is final not only as to every matter which was offered to sustain the claim, but also as to any other admissible matter which might have been offered for that purpose.” (Citation omitted; internal quotation marks omitted.) Morganti, Inc. v. Boehringer Ingelheim Pharmaceuticals, Inc., 20 Conn. App. 67, 71-72, 563 A.2d 1055 (1989); see Saporoso v. Aetna Life & Casualty Co., 221 Conn. 356, 365-68, 603 A.2d 1160 (1992).

A summary process action is designed solely to decide “the simple question of who is entitled to possession.” Yarbrough v. Demirjian, 17 Conn. App. 1, 3, 549 A.2d 283, cert. denied, 209 Conn. 828, 552 A.2d 434 (1988); Urban v. Prims, 35 Conn. Sup. 233, 236, 406 A.2d 11 (1979). A claim for damages is not properly raised in a summary process action. Politzer v. Jeffrey, Inc., 133 Conn. 605, 607, 53 A.2d 201 (1947); Webb v. Ambler, 125 Conn. 543, 551-52, 7 A.2d 228 (1939). A summary process action, therefore, can have no res judicata effect in a subsequent action for damages between the same parties. Because this action is a claim for damages arising out of the relation of landlord and tenant that had to be and was pursued separately from the landlord’s claim for possession, the doctrine of res judicata has no application.

Principles of collateral estoppel, on the other hand, can be applied to an action for damages based on a landlord tenant relationship that follows a summary process action. In determining whether a judgment of possession shall issue in a summary process action, a trial court must necessarily resolve the factual claims asserted in support of the claim for possession. See General Statutes § 47a-23 (a); Rosa v. Cristina, 135 Conn. 364, 365, 64 A.2d 680 (1949). The central issue, therefore, before the trial court and on appeal is the legal effect to be given to the specific ultimate factual findings made by Judge Riefberg in the third summary process action between the parties. This issue involves the application of the doctrine of collateral estoppel to the facts of this case.

II

The plaintiff first claims that the trial court should not have considered the defendants’ oral motion to dismiss because it was made prior to the plaintiff’s resting his case in contravention of Practice Book § 302, and constituted a denial of his due process rights guaranteed by the fifth amendment to the United States constitution and by article first, §§ 8 and 10, of the Connecticut constitution. The plaintiff also claims that, even if the court could have properly acted on the defendants’ motion to dismiss prior to the conclusion of the plaintiff’s case-in-chief, the granting of the motion was improper. The plaintiff asserts that the evidence that he produced at trial supported his claim for relief and that he would have been able to make out a prima facie case for damages notwithstanding the factual determinations made by the trial court in the prior summary process action.

A

Before addressing the plaintiff’s argument that the trial court did not properly apply the doctrine of collateral estoppel to the facts of this case, we must first determine whether the trial court could properly consider the defense of collateral estoppel at all. The plaintiff argues that the defendants should not have been allowed to present, and the trial court could not consider, argument and evidence on the defense of collateral estoppel where it was not properly raised as a special defense by the defendants in their answer. The plaintiff did not raise this argument in the trial court despite the defendants’ repeated assertions during the plaintiff’s direct testimony that the prior decision of Judge Riefberg precluded the plaintiff’s recovery in this action.

Collateral estoppel, like res judicata, must be specifically pleaded by a defendant as an affirmative defense. Practice Book § 164; Chomko v. Patmon, 20 Conn. App. 159, 162, 565 A.2d 250 (1989). There is, however, an exception to this general rule. The defendants’ failure to file a special defense may be treated as waived where the plaintiff fails to make appropriate objection to the evidence and argument offered in support of that defense. See Tedesco v. Stamford, 215 Conn. 450, 462-63, 576 A.2d 1273 (1990); Pepe v. New Britain, 203 Conn. 281, 286, 524 A.2d 629 (1987). We conclude that the failure to file a special defense here was waived because the plaintiff did not object to the dismissal on that ground, even after the defendants claimed that collateral estoppel required a dismissal.

The question of whether the defendants could ever prevail on the defense of collateral estoppel at the conclusion of the plaintiff’s case remains. A plaintiff does not usually have to overcome or rebut an affirmative defense during his or her case-in-chief for purposes of Practice Book § 302 and the establishment of a prima facie case. Resnik v. Morganstern, 100 Conn. 38, 42, 122 A. 910 (1923). We must now, therefore, consider whether Practice Book § 302 could have been utilized to dismiss the plaintiff’s action even if the defendants had pleaded collateral estoppel as an affirmative defense.

In other contexts, the strict application of our rules of practice has yielded to a more common sense application when confronted with the implications of the doctrine of collateral estoppel. Thus, in Convalescent Center of Bloomfield, Inc. v. Department of Income Maintenance, 208 Conn. 187, 544 A.2d 604 (1988), the trial court’s conclusion that collateral estoppel principles did not apply to the circumstances of the case was reviewed notwithstanding the fact that the trial court had ordered a remand for further administrative proceedings, which is generally not regarded as a final judgment for purposes of appeal. Viewing the issue of collateral estoppel as ripe for review, the court noted that “[further proceedings on the substantive merits of the plaintiffs’ claim . . . cannot affect the rights of the parties with respect to collateral estoppel. Indeed, to postpone appellate review and to require further exhaustion of administrative remedies would defeat the very purpose that collateral estoppel is intended to serve. ... If the defendant is correct that the plaintiffs are precluded from relitigating their entitlement to reimbursement, it would be unfair to require the defendant to expend its resources to defeat the plaintiffs’ claim on the merits.” Id., 194. Similar concerns underlie our disposition of Chomko v. Patmon, supra. There, notwithstanding the collateral estoppel effect to be given to a prior action between the parties, the plaintiff urged that we remand the case to permit the defendant to plead the affirmative defense of collateral estoppel properly and then to permit that defense to be litigated in the trial court using appropriate procedures. We declined to do so, noting that “under the suggested scenario the outcome of such a defense would be predetermined. Indeed, only if the trial court on such a remand were erroneously to blind itself to the prior course of the [prior action between the parties] could it decide otherwise. Thus, the plaintiffs argument would simply set judicial wheels unnecessarily spinning, only to remain at the same end of the road.” Id., 163.

Applying the principles of Convalescent Center of Bloomfield, Inc. and Chomko to this case, we conclude that any procedural irregularity in the trial court’s consideration of the defense of collateral estoppel at the § 302 stage of the proceedings could not harm the plaintiff. Here, the application of the principle of collateral estoppel as a defense, if it was a defense on which the defendants could ultimately prevail, would preclude the plaintiff from proving his action. Thus, we hold that a trial court can properly entertain a § 302 motion to dismiss that raises collateral estoppel grounds.

Although we have reached the conclusion that it was proper in this case for the trial court to entertain a § 302 motion to dismiss based on collateral estoppel grounds, we must next decide whether the trial court’s action on the motion prior to the conclusion of the plaintiff’s case-in-chief was fatal to the court’s consideration of the defendants’ motion.

The essence of collateral estoppel is that there is no additional evidence that a party can produce that would require a different resolution of a disputed ultimate fact. See Chomko v. Patmon, supra. If the doctrine should be applied in this case, there would be no additional evidence that the plaintiff could produce that would circumvent the defense of collateral estoppel. We decide, therefore, that although the trial court should have waited until the conclusion of the plaintiff’s primary case before acting on the defendants’ motion, the timing of its action was not harmful to the plaintiff. We must now review the propriety and extent of the preclusive effect to be given to the judgment of the trial court in the prior, third summary process action.

B

The plaintiffs claim for damages in the nature of back rent, interest, costs and attorney’s fees was predicated entirely on his allegation that the defendants failed to pay rent due under the lease from November, 1985, through December, 1986. Essential to the plaintiff’s case, then, was proof that rent was due under the lease during the relevant months. His claims for interest and costs rest on proof of that fact. In the third summary process action, Judge Riefberg determined that the defendants had no obligation to pay rent during the months for which a nonpayment of rent was alleged, namely, November, 1985, through May, 1986, and July, September and October, 1986. On this issue of ultimate fact rested the legal conclusion that the plaintiff was not entitled to possession. In that prior action, Judge Riefberg also determined that the service of the second notice to quit “relieved the tenants of their obligation to pay ‘rent’ during the pendency of the second prior summary process action from November 1985 through November 1986”* **** (Emphasis added.) Only if this latter finding of the trial court in the third summary process action is entitled to collateral estoppel effect will the plaintiff be unable to sustain his claim for rent due for the period November, 1985, through November, 1986, based on the preclusive effect of the prior judgment.

Where an issue of ultimate fact (1) was fully and fairly litigated in a prior action between the parties, (2) was actually decided by the court in that prior action, and (3) was necessary to the judgment rendered in the prior action, that factual determination may be given collateral estoppel effect in a subsequent action between the parties. Aetna Casualty & Surety Co. v. Jones, 220 Conn. 285, 296, 596 A.2d 414 (1991); Gionfriddo v. Gartenhaus Cafe, 15 Conn. App. 392, 402, 546 A.2d 284 (1988), aff'd, 211 Conn. 67, 557 A.2d 540 (1989). In the third summary process action between the parties, the plaintiff alleged that he was entitled to a judgment of possession because the defendants had failed to pay rent. In his complaint, as amended, the plaintiff did not allege a nonpayment of rent during the entire period of time at issue in this case. Rather, he alleged a nonpayment during fewer months than are covered in this case. While Judge Riefberg’s decision in the third summary process action determined that there was no obligation to pay rent during all of the months at issue in this case, except for December, 1986, it is apparent that only the months of November, 1985, through May, 1986, and July, September and October, 1986, were in issue in that summary process case. Whether the defendants were obligated to pay rent during June, August, November or December, 1986, was not before the court in the third summary process action. The court’s finding about whether rent was due during the pendency of the second summary process action was beyond the scope of the issue to be decided in the third summary process action.

Because the issue of whether rent was due for June, August, November and December of 1986 was not necessary to the judgment in the third summary process action, the principles of collateral estoppel will not bar subsequent litigation of the issue of whether rent was due during those four months of 1986. “ ‘[I]f issues are determined but the judgment is not dependent upon the determinations, relitigation on those issues in a subsequent action between the parties is not preeluded. . . Hansted v. Safeco Ins. Co. of America, 19 Conn. App. 515, 519, 562 A.2d 1148, cert. denied, 212 Conn. 819, 565 A.2d 540 (1989); Restatement (Second), Judgments § 27, comment, p. 258.

Consequently, only Judge Riefberg’s conclusion in the third summary process action that rent was not due during the months of November, 1985, through May, 1986, and July, September and October, 1986, was properly entitled to collateral estoppel effect in the present case. These conclusions bar relitigation of whether rent was due during those months in the present action for damages for the same months. This is so because the issue of the payment of rent for the months in question was essential to and decided in the summary process action.

No prior judicial determination of preclusive effect has been rendered, however, with respect to the alleged failure to pay rent during the months of June, August, November and December, 1986. The doctrine of collateral estoppel is a limited one. Collateral estoppel can be applied only to bar relitigation of facts that were formally put in issue and ultimately determined by a valid, final judgment. In re Juvenile Appeal (83-DE), 190 Conn. 310, 316-17, 460 A.2d 1277 (1983). To conclude otherwise would improperly infringe on a party’s right to seek a judicial determination of disputed issues of fact. The doctrine of collateral estoppel, therefore, did not prevent the plaintiff from making out a prima facie case that rent was due in the months of June, August, November and December, 1986, along with his claim for interest, costs and attorney’s fees.

The trial court prevented the plaintiff from making out a prima facie case as to some of his allegations and claims for relief by prematurely rendering a judgment of dismissal before the plaintiff had presented his entire case. We must, therefore, set aside its judgment insofar as it concerns rent due for June, August, November and December, 1986, and remand for a new trial to determine whether rent was due for those months, and, if so, whether interest was due, and to determine whether the plaintiff was due attorney’s fees incurred to enforce his lease. These issues have not been litigated and their resolution is not barred by the application of the doctrine of collateral estoppel.

The judgment of dismissal as to rent claimed to be due for November through May, 1986, and July, September and October, 1986, is affirmed. In all other respects, the judgment of dismissal is reversed and the case is remanded for a new trial as limited by this opinion.

In this opinion the other judges concurred.

       Also named as a defendant was Francoise G. Jiskoot. Both defendants are parties to this appeal.

       Originally, the plaintiff proceeded by way of a two count complaint. Count one was based on a failure to pay rent due under the lease during the relevant time period. Count two was based on a failure to pay use and occupancy during the relevant time period. The plaintiff abandoned count two at the commencement of trial.

       Any defenses of res judicata and collateral estoppel arising out of the decision of the trial court, Reifberg, J., were not available to the defendants when their answer was filed in this case because the third summary process action had not yet been decided. The defendants, however, never amended their answer between the date of Judge Riefberg’s decision, March 31, 1989, and the date of trial in this case, June 18,1991. The defendants did file a trial memorandum before the commencement of trial in this case that set forth a claim of res judicata and collateral estoppel based on Judge Riefberg’s decision.

       Practice Book § 302 provides in pertinent part: “If, on the trial of any issue of fact in a civil action tried to the court, the plaintiff has produced his evidence and rested his cause, the defendant may move for judgment of dismissal, and the court may grant such motion if in its opinion the plaintiff has failed to make out a prima facie case. . . .”

       During the direct testimony of the plaintiff, the trial court asked the plaintiff’s counsel: “Well, let me—let me say this. The relevant time frame in your complaint, whether res judicata or not, is 11-1-85 through 11-30-86, am I correct?” To which the plaintiff s counsel replied: “That’s correct Your Honor, except that interest—we’re making a claim that interest continued to run on the amount of money that came due at that period of time until the date hereof.” The complaint alleged nonpayment of rent “through and including rent due for December 1,1986.” Neither party addressed the issue of whether the plaintiff was claiming rent for December, 1986. We cannot determine, on the basis of counsel’s answer, whether the plaintiff abandoned his claim for December, 1986 rent.

       Judge Riefberg based his conclusion that the service of the second notice to quit relieved the defendants of their obligation to pay rent during the pendency of the second summary process action on Welk v. Bidwell, 136 Conn. 603, 609, 73 A.2d 295 (1950), Rivera v. Santiago, 4 Conn. App. 608, 610, 495 A.2d 1122 (1985), and Bushnell Plaza Development Corporation v. Fazzano, 38 Conn. Sup. 683, 686, 460 A.2d 1311 (1983), as well as our decision in Bridgeport v. Barbour-Daniel Electronics, Inc., 16 Conn. App. 574, 548 A.2d 744 (en banc), cert. denied, 209 Conn. 826, 552 A.2d 432 (1988).

       See footnote 5, supra.

       The fact that the lease agreement was revived by the subsequent conduct of the parties in settling and withdrawing the second summary process action; see Bridgeport v. Barbour-Daniel Electronics, Inc., 16 Conn. App. 574, 595 n.5, 548 A.2d 744 (1988) (Borden, J., dissenting); Housing Authority v. Hird, 13 Conn. App. 150, 156-57, 535 A.2d 377, cert. denied, 209 Conn. 825, 522 A.2d 433 (1988); does not, as claimed by the plaintiff, undo the fact that it was terminated in November, 1985. See footnote 6, supra, and cases cited therein. While our cases recognize that the subsequent conduct of a landlord and tenant can revive or reinstate a lease agreement, they do not suggest that such conduct has any such retroactive effect on the preceding legal relationship between the parties.


text:
    Vito L. Palmisano et al. v. Conservation Commission of the Town of Old Lyme et al.
    (10298)
    Daly, Foti and Lavery, Js.

      Argued February 10
    decision released May 12, 1992

      John S. Bennet, for the appellants (plaintiffs).

      James E. Mattern, for the appellee (named defendant).
   Foti, J.

The plaintiffs appeal from the judgment of the trial court dismissing their administrative appeal from the decision of the defendant conservation commission of the town of Old Lyme acting as the local inland wetlands agency. The plaintiffs claim that the trial court improperly held that (1) there was sufficient reason to support the commission’s denial of their building application, (2) the commission could rely on its own knowledge and belief rather than the expert testimony presented at the administrative hearings, (3) no evidence was submitted at the hearing to demonstrate that an alternative use of the property was available to the plaintiffs, (4) there were alternative uses of the property and, thus, there was no taking of the plaintiffs’ property, and (5) the plaintiffs were not deprived of their due process rights. We reverse the judgment of the trial court on the plaintiffs’ final claim, and, therefore, find it unnecessary to address the other claims.

The trial court found the following facts. The plaintiffs, having acquired the property by deed in 1965, are the owners of property known as 41 Biscayne Boulevard in Old Lyme. On February 1, 1990, the plaintiffs applied to the commission for permission to build a house and a septic system within the 100 foot regulated area beyond the wetlands boundary as shown on a plan that was on file. No construction was proposed, however, within the actual wetlands. Nearly all of the plaintiffs’ property is located within this 100 foot regulated area. The commission held two public hearings on March 27 and April 24, 1990, at which the plaintiffs’ application was considered. At some time between the two hearings, some members of the commission visited the site and gathered evidence for themselves. After the second hearing, the commission received a hand drawn map from one of the plaintiffs’ neighbors. The map showed the location of an existing well on the neighbor’s property and the distance from this well to the proposed septic system on the plaintiffs’ property.

The trial court determined that the consideration by the commission of information obtained outside of the record did not deprive the plaintiffs of due process. The trial court accepted the commission’s contention that the plaintiffs had an opportunity at the hearings to present their own arguments and evidence regarding the existence and location of the neighbor’s well. The commission argued, and the trial court agreed, that the site inspection and the late filing of the map presented no evidence that was distinguishable from the evidence adduced at the two hearings. The court concluded that because the plaintiffs had the opportunity to learn of and counter the question regarding the location of the neighbor’s well, it could not find that any deprivation of due process was involved in what otherwise might have been an inappropriate procedure by the commission. We do not agree.

The record is clear that the commission relied on evidence obtained outside the public hearing to which the plaintiffs were not provided an opportunity to respond. The plaintiffs argue that this evidence is not duplica-tive of the evidence presented during the hearings. The record reveals that five members of the commission conducted a site inspection of the plaintiffs’ property, without first notifying the plaintiffs or providing notice of a meeting of the commission. Thereafter, four of those five members, along with the other members of the commission who had not visited the site, voted to deny the plaintiffs’ application. When asked whether it is the custom of the commission to notify the applicant prior to making site inspections, no response was given. Additionally, while the neighbor did testify at the first hearing as to the approximate location of his well, the map submitted after the second hearing indicated its exact location. The map also showed that the proposed site for the plaintiffs’ septic tank was approximately sixteen feet from the well.

Although proceedings before administrative agencies such as the defendant are informal and are conducted without regard to the strict rules of evidence, the hearing must be conducted so as not to violate the fundamental rules of natural justice. Pizzola v. Planning & Zoning Commission, 167 Conn. 202, 207, 355 A.2d 21 (1974). “Due process of law requires not only that there be due notice of the hearing but that at the hearing the parties involved have a right to produce relevant evidence, and an opportunity to know the facts on which the agency is asked to act, to cross-examine witnesses and to offer rebuttal evidence.” Connecticut Fund for the Environment, Inc. v. Stamford, 192 Conn. 247, 249, 470 A.2d 1214 (1984). To that end, our law holds that commissions cannot consider additional evidence submitted by a party without granting the opponents and the public the opportunity to examine that evidence and to offer evidence in explanation or rebuttal. Carlson v. Fisher, 18 Conn. App. 488, 503, 558 A.2d 1029 (1989).

Commissions are entitled to receive technical and professional assistance in matters that are beyond their expertise, and this assistance may be rendered in executive session. Pizzola v. Planning & Zoning Commission, supra, 208. Such assistance cannot be extended, however, to the receipt of ex parte evidence submitted by a party to the controversy without the opposition’s knowledge and opportunity for explanation or rebuttal. Id.; Norooz v. Inland Wetlands Agency, 26 Conn. App. 564, 569-70, 602 A.2d 618 (1992).

Applying the Pizzola standard to the present case, we conclude that the record clearly indicates that the commission’s receipt of the map was ex parte and, therefore, improper. Once it has been demonstrated that an improper receipt of ex parte evidence has occurred, a rebuttable presumption of prejudice arises with the burden to show no prejudice on those seeking to uphold the validity of the commission’s decision. Blaker v. Planning & Zoning Commission, 212 Conn. 471, 480, 562 A.2d 1093 (1989). The burden now shifts to the commission to prove that no prejudice has resulted from the prohibited ex parte communication. Id., 479. The record does not indicate that the commission rebutted the presumption of prejudice.

The plaintiffs were given the opportunity to inquire of the neighbor as to the location of the well and possibly to present evidence on that point. The plaintiffs were unable, however, to inquire as to the map, to cross-examine its maker or to present evidence to rebut what the map may have indicated. Similarly, with regard to the site inspection, the plaintiffs were given no opportunity to rebut the claimed existence of a well as “found” by a member of the commission when she felt a pipe in the ground. The plaintiffs were afforded no right to accompany the commission members onto the neighbor’s property in order to dispute evidence gathered there by the commission, or even to witness the evidence being gathered so as to be given an opportunity to counter that evidence. While the commission is not required to provide an opportunity for rebuttal when it relies on the knowledge and experience of one of its members on nontechnical issues; Brookfield Plaza Limited Partnership v. Zoning Commission, 21 Conn. App. 489, 493-94, 574 A.2d 825 (1990); this was not a nontechnical issue.

A commission may rely on its personal knowledge. Feinson v. Conservation Commission, 180 Conn. 421, 427, 429 A.2d 910 (1980). It may also visit sites. Tor-siello v. Zoning Board of Appeals, 3 Conn. App. 47, 50, 484 A.2d 483 (1984). It may rely on material nonrecord facts that are within its special knowledge and experience or that it has learned through investigation, but in doing so it must allow an adversely affected party an opportunity to rebut at an appropriate stage in the proceedings. Feinson v. Conservation Commission, supra, 428-29; Parsons v. Board of Zoning Appeals, 140 Conn. 290, 292-93, 99 A.2d 149 (1953). mile a commission may rely on its own expertise within the area of its professional competence; Briggs v. State Employees Retirement Commission, 210 Conn. 214, 217-18, 554 A.2d 292 (1989); the record in this case does not indicate that the member who felt a pipe in the ground and determined the existence of a well was anyone other than a lay member of the commission. While a lay member of a commission may rely on personal knowledge concerning matters readily within his or her competence; Feinson v. Conservation Commission, supra, 427; the location of the well in this case could not be determined by ordinary knowledge and experience.

In making its decision, the commission was obligated to evaluate the sufficiency of the evidence regarding the location of the well. The commission’s consideration of improper evidence that could not be rebutted may have been an important fact in the commission’s determination. “Reliance on extra-record evidence for important facts demonstrates substantial prejudice.” Connecticut Natural Gas v. Public Utilities Control Authority, 183 Conn. 128, 140, 439 A.2d 282 (1981).

Because we have found that the plaintiffs were deprived of their due process rights, justice and fairness require that the plaintiffs receive a new hearing on their application.

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

In this opinion the other judges concurred.

       The plaintiffs are Vito L. Palmisano and Virginia M. Palmisano.

       The defendants are the Old Lyme conservation commission, Jessie Smith, the town clerk of Old Lyme, and Leslie Carothers, the commissioner of environmental protection for the state of Connecticut.

       One member responded: “We didn’t notify. We happened to be there.” Another member testified that while at the site she “stuck my hand in the dirt and felt a pipe that went to the well. So there was a well there.”