text:
    Property Group, Inc. v. Planning and Zoning Commission of the Town of Tolland
    (10367)
    Dupont, C. J., Lavery and Landau, Js.
    Argued January 13
    decision released September 8, 1992

      Richard S. Conti, with whom was Joshua A. HawksLadds, for the appellant (defendant).

      Edward S. Hyman, for the appellee (plaintiff).
   Lavery, J.

The defendant planning and zoning commission of the town of Tolland appeals from the trial court’s judgment striking a condition the commission imposed in approving the plaintiff’s subdivision application. The commission required that the plaintiff widen a public highway abutting the proposed subdivision. On appeal, the commission claims that the condition was improperly stricken because the trial court (1) found that the road widening condition was an “off-site” improvement, (2) misapplied the reasoning of Sowin Associates v. Planning & Zoning Commission, 23 Conn. App. 370, 580 A.2d 91 (1990), cert. denied, 216 Conn. 832, 583 A.2d 131 (1991), to a situation where the obligation to construct public improvements is made a condition of the subdivision approval, and (3) found that General Statutes § 8-25 does not permit a planning commission to order “off-site” improvements. We affirm the judgment of the trial court.

The pertinent facts are as follows. The plaintiff applied to the commission for approval to subdivide a parcel of land into ten residential building lots. Each proposed lot fronts on Buff Cap Road, a town road. The commission approved the application, with a condition requiring the plaintiff to widen Buff Cap Road to a paved width of sixteen feet from its center line for the entire length of the frontage, approximately 2000 feet. The condition obligates the plaintiff to be responsible for the actual improvement work involved in laying the pavement and providing for drainage for a width of six feet for the entire length of the frontage.

The plaintiff appealed the road widening condition to the Superior Court, which sustained the plaintiff’s appeal, finding that “under the present state of the law off-site considerations may not, therefore, constitute the basis for denying a subdivision application or as in this case, requiring off-site improvements where the use is permitted under the existing zoning law.”

The commission first claims that the trial court improperly found that the road widening condition would result in an “off-site” improvement, and incorrectly struck that condition of approval.

In Sowin Associates v. Planning & Zoning Commission, supra, this court decided that a planning commission cannot deny an application for a subdivision of residential property in a residential zone because of off-site traffic conditions, municipal services required by the development, property values, or the general harmony of the district, because designation of the property as a permitted use establishes a conclusive presumption that it does not adversely affect the district. Id., 374-75.

The condition of the subdivision approval at issue in this case, namely the requirement that the plaintiff widen Buff Cap Road by six feet, involves the land between the paved portion of Buff Cap Road and the boundaries of the lots set forth on the maps of the proposed subdivision.

The defendant claims that the plaintiff owns the six foot area to be paved and that the improvements to the road are on-site rather than off-site and aré not controlled by Sowin Associates. The defendant argues that General Statutes § 8-25, the enabling act, authorizes a planning and zoning commission to order public improvements on a subdivider’s property as a condition of approval and then to have the applicant convey the improved portion of property to the town. Raybestos-Manhattan, Inc. v. Planning & Zoning Commission, 186 Conn. 466, 471-75, 442 A.2d 65 (1982).

In determining whether this issue concerns an on-site or an off-site improvement, we must look to § 8-25, which deals with “subdivided land” and “land to be subdivided,” and provides in pertinent part: “No subdivision of land shall be made until a plan for such subdivision has been approved by the commission. . . . Such regulations shall provide that the land to be sub divided shall be of such character . . . .” (Emphasis added.) The maps submitted with the plaintiffs application do not show the six foot wide strip that the condition requires the plaintiff to improve as a part of the land to be subdivided. Rather, that strip abuts the land to be subdivided. It is part of the right-of-way of an existing public road. Its present and future use is determined by its prior dedication as a public road, not by the subdivision plan.

We conclude that the trial court correctly determined that the area in question is off-site, not on-site. Consequently, the trial court properly addressed the right of the commission to require off-site improvements to an existing public road, where the proposed subdivision plan proposes only lots that abut the existing public highway.

The other two claims of the defendant are that the trial court improperly applied the reasoning of Sowin Associates v. Planning & Zoning Commission, supra, to a situation where the obligation to construct public improvements is made a condition of the subdivision approval, and found that § 8-25 does not permit a planning commission to order “off-site” improvements, as Tolland subdivision regulation § 166-6 (D) attempts to do. These claims are interrelated and are subsumed under the single issue of whether the commission has the authority to condition its approval of a subdivision application on the applicant’s improvement of an existing town road abutting and serving each proposed lot of the subdivision, where the proposed subdivision lacks interior intersecting streets.

Section 166-6 (D) of the Tolland subdivision regulations provides: “In cases where reasonable and necessary need for an off-site improvement or improvements is necessitated or required by the proposed development application and where no other property owners receive a special benefit thereby, the Commission may require the applicant, as a condition of subdivision approval and at the applicant’s sole expense, to provide for and construct such improvements as if such were on-site improvements, including development of public roads contiguous to the subdivision.”

We must first start with the authority of the defendant to promulgate this regulation. “ ‘It has been said that the whole field of subdivision regulation is peculiarly a creature of legislation. It is, therefore, imperative that before subdivision regulations may be made operative, the necessary statutory authorization for such regulation must exist.’ 2 Yokley, Zoning Law and Practice (3d Ed.) § 12-3.” Finn v. Planning & Zoning Commission, 156 Conn. 540, 545, 244 A.2d 391 (1968). “In other words, in order to determine whether the regulation in question was within the authority of the commission to enact, we do not search for a statutory prohibition against such an enactment; rather, we must search for statutory authority for the enactment.” Avonside, Inc. v. Zoning & Planning Commission, 153 Conn. 232, 236, 215 A.2d 409 (1965); Norwich v. Housing Authority, 216 Conn. 112, 123, 579 A.2d 50 (1990); Finn v. Planning & Zoning Commission, supra. Section 8-25 sets forth the powers of the planning commission to promulgate substantive provisions of their subdivision regulations.

There is nothing in § 8-25 that authorizes a planning commission to require a developer to improve an existing abutting public highway where no intersecting subdivision streets are being created. Section 8-25 sets forth with specificity the power of a planning commission to promulgate regulations for exactions from a developer for open spaces, parks, and playgrounds or to exact from the developer a fee in lieu of open spaces. In addition, the statute empowers the planning commission to promulgate regulations for proposed streets, especially their safe intersections with existing or proposed principal thoroughfares, and the manner in which they are to be graded and improved and public utilities and services provided.

In Raybestos-Manhattan, Inc. v. Planning & Zoning Commission, supra, 468-69, our Supreme Court approved the actions of the planning and zoning commission of the town of Trumbull requiring an extension of a public street through the developer’s land. Unlike the regulations in the present matter, however, Trumbull’s plan of development provided for the extension of the public street. Id., 475. The Supreme Court observed, “the commission’s actions were authorized by pertinent state statutes as well as the Trumbull subdivision regulations and plan of development. Section 8-25 empowers a planning and zoning commission to adopt subdivision regulations which promote the harmonious development of local traffic patterns so as ‘to provide an adequate and convenient system for present and prospective traffic needs.’ Moreover, [General Statutes] § 8-23 authorizes a commission to prepare a plan of development for the community which shows ‘the commission’s recommendation for a system of principal thoroughfares, parkways, bridges, streets and other public highways. . . .’ ” Id., 471-74.

The commission relies primarily on two cases in an effort to justify its authority to impose the road widening condition on the plaintiff, Reed v. Planning & Zoning Commission, 12 Conn. App. 153, 529 A.2d 1338 (1987), aff’d, 208 Conn. 431, 544 A.2d 1213 (1988), and Weatherly v. Town Plan & Zoning Commission, 23 Conn. App. 115, 579 A.2d 94 (1990).

In Reed, this court held that the subdivision application was wrongfully denied because the abutting town road was inadequate. Reed v. Planning & Zoning Commission, supra, 154. The applicant was willing to comply with a requirement in the subdivision regulations to deed to the town sufficient land to enable the town to widen the town road to the appropriate width. Id., 157. We concluded that the applicant met the subdivision regulation requirement for adequate public access when he agreed to comply with the regulations. Id., 157-58. In Reed, we noted: “The regulation does not purport to require the town to improve the public road. As the trial court recognized, the planning commission has no authority over the maintenance of a public road. See General Statutes § 13a-99 (town to maintain pub-lie roads); General Statutes § 8-25 (authority of planning commission). While the regulation does not attempt to compel the town to widen and improve a public road, it appears to contemplate that a town will do so pursuant to its duty to build and repair all necessary highways and bridges. General Statutes § 13a-99; see also General Statutes §§ 13a-63,13a-103 (remedies for failure to maintain highway; parties who benefit from improvement may be assessed a portion of the costs).” Id., 157 n.6.

Both this court and the Supreme Court, in affirming our decision, noted the Superior Court decision of Pope v. Planning & Zoning Commission, Superior Court, judicial district of Middlesex, Docket No. 8239 (July 18, 1979), which held that a town could not impose a road improvement requirement on an applicant whose property fronted a town road because the municipality had the obligation to maintain its public roads in a safe condition, and that the planning commission cannot base its decision on the assumption that the municipality will not carry out this duty.

In Weatherly, we held that the planning commission could have a subdivision regulation requiring subdivision applicants to deed sufficient land to a town for the proper widening of existing abutting streets to fifty feet or the width required to meet the classification given to the road by the town, where the regulation did not obligate the applicant to pay for the widening or the off-site improvement. Weatherly v. Town Plan & Zoning Commission, supra, 123.

Tolland subdivision regulations § 166-6 (D) does not, standing alone, exceed the authority granted to the defendant in § 8-25. A subdivision application proposing roads intersecting with public highways could indeed require off-site improvements to public highways including drainage, site distance, design of intersection, approaches and the like for public health and safety reasons. When we examine the regulation, we must do so as it relates to the facts of this case. Barberino Realty & Development Corporation v. Planning & Zoning Commission, 222 Conn. 607, 620, 610 A.2d 1205 (1992). First, we must determine whether there was substantial evidence for the commission to find as it did under the regulation. If there was substantial evidence, we must then determine whether the commission had the power to enact the regulation or apply the regulation to this factual situation under the enabling statute. The regulation requires a finding that there is a “reasonable and necessary need for the off-site improvements necessitated or required by the proposed development application.”

The road is a uniform width for its entire 2.9 mile length. There is nothing in Tolland’s plan of development concerning the widening of any part of Buff Cap Road. The town planner recommended the widening of the road. The road widening condition required that the road would only be widened by the plaintiff on the side of the road abutting the subdivision. The purpose of the condition, as stated at the public hearing, was to prevent the town from incurring costs in case the road had to be widened or the trees had to be removed in the future.

The record lacks any evidence demonstrating that a “reasonable and necessary need for an off-site improvement or improvements is necessitated or required by the proposed development application.” There is likewise no evidence in the record tending to show that the widening of the road is necessary for public health or safety reasons, or that the improvements are necessary to provide better drainage for either the road or adjoining properties. Also, there is no support in the record for the proposition that any adverse condition will arise because of the plaintiffs subdivision that requires the road widening and improvements. We conclude that the commission did not have before it “substantial evidence” to meet the requirement of the regulation at issue.

Neither Tolland subdivision regulations § 166-6 (D) nor General Statutes § 8-25 give the commission the authority to require public road improvements that are not necessitated by or required by the proposed subdivision. Because there was no substantial evidence to satisfy the standards of the regulation that purportedly allowed the commission to impose the condition, it is unnecessary for us to determine whether the regulation would be valid if substantial evidence did exist. Zarembski v. Warren, 28 Conn. App. 1, 7, 609 A.2d 1039 (1992).

The judgment is affirmed.

In this opinion the other judges concurred.

       Buff Cap Road is a road approximately 2.9 miles in length. The entire length of the road has a paved width of approximately twenty feet. That portion of Buff Cap Road abutting the proposed subdivision will be the only stretch of the road with a paved width greater than twenty feet. The paved width of the road abutting the subdivision would then be twenty-six feet.

       General Statutes § 8-25 provides in pertinent part: “Such regulations shall provide that the land to be subdivided shall be of such character that it can be used for building purposes without danger to health or the public safety, that proper provision shall be made for water, drainage and sewerage and, in areas contiguous to brooks, rivers or other bodies of water subject to flooding, including tidal flooding, that proper provision shall be made for protective flood control measures and that the proposed streets are in harmony with existing or proposed principal thoroughfares shown in the plan of development as described in section 8-23, especially in regard to safe intersections with such thoroughfares, and so arranged and of such width, as to provide an adequate and convenient system for present and prospective traffic needs. . . . The commission may also prescribe the extent to which and the manner in which streets shall be graded and improved and public utilities and services provided and, in lieu of the completion of such work and installations previous to the final approval of a plan, the commission may accept a bond in an amount and with surety and conditions satisfactory to it securing to the municipality the actual construction, maintenance and installation of such improvements and utilities within a period specified in the bond. Such regulations may provide, in lieu of the completion of the work and installations above referred to, previous to the final approval of a plan, for an assessment or other method whereby the municipality is put in an assured position to do such work and make such installations at the expense of the owners of the property within the subdivision. Such regulations may provide that in lieu of either the completion of the work or the furnishing of a bond as provided in this section, the commission may authorize the filing of a plan with a conditional approval endorsed thereon. Such approval shall be conditioned on (1) the actual construction, maintenance and installation of any improvements or utilities prescribed by the commission or (2) the provision of a bond as provided in this section. Upon the occurrence of either of such events, the commission shall cause a final approval to be endorsed thereon in the manner provided by this section. . . .”

       Neither this court; Reed v. Planning & Zoning Commission, 12 Conn. App. 153, 159, 529 A.2d 1338 (1987); nor the Supreme Court; Reed v. Planning & Zoning Commission, 208 Conn. 431, 437 n.6, 544 A.2d 1213 (1988), expressed an opinion about the validity of the Pope decision.

       At the public hearing on the plaintiffs application, the following exchange occurred:
      ‘‘[Chairman]: So the, the Town’s major interest in this is to protect it from incurring costs later, if they had to widen the road and take down the trees.
      “[Town Planner]: The Town’s interest would be to have the road widened by the subdivider. You know, the whole job which would include taking down the trees. I think the, you know, it’s our suggestion that the road be widened from the centerline inward sixteen feet. I think that that would probably require the removal of most of those trees.”

       Presently, there are seventy-three residences fronting on Buff Cap Road.

       “This so-called substantial evidence rule is similar to the sufficiency of the evidence standard applied in judicial review of jury verdicts, and evidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred. . . . [I]t must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury. . . . [I]t is a compromise between opposing theories of broad or de novo review and restricted review or complete abstention. It is broad enough and capable of sufficient flexibility in its application to enable the reviewing court to correct whatever ascertainable abuses may arise in administrative adjudication. On the other hand, it is review of such breadth as is entirely consistent with effective administration. . . . [It] imposes an important limitation on the power of the courts to overturn a decision of an administrative agency . . . and to provide a more restrictive standard of review than standards embodying review of weight of the evidence or clearly erroneous action. . . . [I]t is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence.” (Citations omitted; internal quotation marks omitted.) Huck v. Inland Wetlands & Watercourses Agency, 203 Conn. 525, 541, 525 A.2d 940 (1987); Bradley v. Inland Wetlands Agency, 28 Conn. App. 48, 52 n.3, 609 A.2d 1043 (1992).


source: Caselaw Access Project

author: Lavery, J.

license: Public Domain

text:
    E. Don Smith et al. v. Zoning Board of Appeals of the Town of Greenwich
    (10431)
    Daly, Norcott and Lavery, Js.
    Argued May 1
    decision released September 8, 1992

      E. Don Smith, pro se, and Eileen Smith, pro se, the appellants (plaintiffs).

      James W. Macauley, for the appellee (named defendant).

      William E. Hegarty, for the appellees (defendant the Historical Society of the Town of Greenwich, Inc., et al.).
   Lavery, J.

The plaintiffs, E. Don Smith and Eileen Smith, appeal from the trial court’s decision affirming the denial of their subdivision application by the zoning board of appeals of the town of Greenwich.

The dispositive issue in this appeal is whether the trial court correctly upheld the denial of the plaintiffs’ subdivision application. The trial court found that the application conformed to all the stated subdivision regulations, but that it “did not meet the purposes of the subdivision regulations .... It does not conform to the town of Greenwich plan of development in that it does not meet the basic objectives of preservation of historic and architectural resources. Furthermore, it does not preserve the natural features of the landscape: namely the historic streetscape.” We reverse the judgment of the trial court.

The relevant facts are as follows. The plaintiffs reside at and are owners of property located at 35 Strickland Road in Greenwich. The property is located in an R-7 zone and contains 33,032 square feet. The minimum lot size for this zone is 7500 square feet. The property is also located in an historic district. In January, 1987, the plaintiffs submitted a subdivision application to the planning and zoning commission of the town of Greenwich (commission), seeking to subdivide the property into three lots. In April, 1987, the commission conducted a hearing on the plaintiffs’ application and advised them to proceed to a final subdivision plan, subject to the resolution of a number of specified issues prior to the final application submission.

The plaintiffs subsequently proposed a final subdivision plan. On November 22, 1988, the commission denied the subdivision application by the following resolution: “WHEREAS, the Town of Greenwich Plan of Development, 1984 states as a basic development objective the preservation of historic and architectural resources; and

“WHEREAS, the subject lot is contained within the duly established Mill Pond Historic District; and

“WHEREAS, the Commission recognizes that the existing streetscape, which is defined by the open space of the subject tract in relation to adjoining historical properties, structures, and open spaces is a significant element of the historic district in terms of visual appearance as well as historic use and occupancy of the land; and

“WHEREAS the subdivision would permit construction of a house in the previously defined, significant open space, thereby disrupting an essential characteristic of the historic district; and

“WHEREAS a stated purpose of the Subdivision Regulations of the Town is to ‘Further the orderly development of the Town in accordance with the Town Plan of Development’; and

“WHEREAS, the Commission finds that there are other zoning options for development of the property which would provide for the same or greater number of dwelling units while preserving the site’s open space and natural features which are significant components of the historic streetscape;

“THEREFORE, BE IT RESOLVED that final Subdivision #1066 of E. Don Smith and Eileen Smith owners of property located on Strickland Road consisting of a record sheet prepared by J. A. Kirby Company dated March 17,1988, revised September 26,1988, is hereby denied.”

The plaintiffs appealed the decision of the commission to the defendant zoning board of appeals of the town of Greenwich (board). The board then conducted a de novo public hearing on the plaintiffs’ final subdivision plan pursuant to § 103 of the Greenwich Municipal Code. The proposed subdivision called for three lots, the first containing the plaintiffs’ residence, the second containing the plaintiffs’ barn, and the third the presently unimproved area in front of the plaintiffs’ residence. At the public hearing, the chairman of the historic district commission urged the board of appeals to reject the subdivision, stating that the historic district commission would not allow any structure to be built on the third lot. After a lengthy hearing, the board denied the plaintiffs’ appeal on the following grounds: “The proposed subdivision did not meet the purposes of the Subdivision Regulations as provided in Section 6-260, thereof. It does not conform to the Town of Greenwich Plan of Development in that it does not meet the basic objectives of preservation of historic and architectural resources. Furthermore, it does not preserve the natural features of the landscape; namely, the historic streetscape.

“Applicants’ plan proposed in an Historic District was opposed in testimony and in writing by the Historic District Commission which among other things, oversees erection and alteration of buildings in said district. Such plan was also opposed by residents in the District. The Board finds that the integrity of the Historic District would be violated and the appearance and historic character of the Historic District would be impaired by this plan. The residents who voted to form an Historic District were given assurances of preservation of their historic neighborhood even though they knew certain freedoms of future development would be regulated and restricted.

“The applicants were aware of the property’s location in the Historic District since that fact is stated in their deed and they formerly resided in this District at another address. The Board concluded that the applicants’ development rights were not deprived because other alternatives for development are available.

“The property is located in the Coastal Zone of the Town. Therefore, it is subject to the requirements of the Coastal Area Management Act. The Board finds that the proposed subdivision plan would have an adverse impact on coastal resources because of the alteration of natural features of vistas.” (Emphasis in original.)

The plaintiffs appealed the board’s decision to the Superior Court, pursuant to General Statutes § 8-8 (2) (b). The trial court upheld the board’s decision, ruling against the plaintiffs’ claims that the proposal met the requirements of the subdivision regulations as written and that the town plan of development is not a regulation. The trial court further found, however, that the board’s conclusion, based on the Coastal Area Management Act, was not based on substantial evidence and was not a sufficient reason to deny the subdivision application.

The court found in relevant part as follows. “Section 6-260 of the Greenwich Municipal Code provides that one of the purposes of the subdivision regulations is to ‘further the orderly development of the town in accordance with the town plan of development.’ The town plan of development has as one of its ‘Basic Objectives’ the preservation of historic resources. The town plan of development also provides that ‘Greenwich has a rich . . . historical heritage that should be protected for the benefit and enlightenment of future generations,’and that‘conserving the Town’s . . . historical resources is a notably effective land use tool for preserving the essential character and spirit of the community.’ Other references to the importance of historic factors appear in the town plan of development. An evaluation of historical factors is specifically mentioned in the Greenwich Subdivision Regulations, § 6-266 (a) 19, governing subdivisions in the coastal zone.

“It is the opinion of the court that the plaintiffs’ position is without merit. Not only do the subdivision regulations mention historic factors, but they state as a purpose the development of the town in accordance with the town plan of development, which has preservation of historic resources as a basic objective. Further, given the established public policy favoring historic preservation, see General Statutes § 7-147a et seq. and Greenwich Municipal Code § 6-307, and the plaintiffs’ deed restriction, it is found that the board did apply standards contained in the regulations to the subdivision, and plaintiffs had notice that historic factors would be considered.

“The board’s finding that the proposal would impair the historic streetscape is supported by the record. The Smiths’ side of Strickland Road is characterized by homes on lots with sweeping front lawns. The plaintiffs plan to convert their front lawn into a building lot and construct thereon a house with a thirty feet by forty feet footprint, and setbacks of twenty-five feet from the front properly line, twenty feet from the south property line, and fifteen feet from a line of trees. These exhibits show that construction of a house on the front lawn would drastically alter the streetscape, and support the board’s conclusion in that regard.

“The board also cited the opposition of the historic district commission, which, among other things, oversees erection and alteration of buildings in the historic district.”

The trial court ultimately concluded that the board’s consideration of and decision based on historic factors was proper and that the evidence on the record was sufficient to support the board’s decision that the proposed subdivision would impair the appearance of the historic streetscape. The plaintiffs appealed from the trial court’s dismissal of their appeal after we granted certification.

We disagree with the trial court for the following reasons: (1) the enabling statutes on subdivisions did not give the defendant the authority to include historical factors in its regulations; (2) the terms “town plan of development,” “historic factors” and “historic street-scape” are not known and fixed standards required for subdivision regulations; (3) the Greenwich town charter forbids the board from denying a subdivision application based on the plan of development; and (4) it is the duty of the historic district commission, not the planning and zoning commission or the board of appeals, to decide whether a building should be erected in a historic district.

“ Tt has been said that the whole field of subdivision regulation is peculiarly a creature of legislation. It is therefore imperative that before subdivision regulations may be made operative, the necessary statutory authorization for such regulation must exist. ... In other words, in order to determine whether the regulation in question was within the authority of the commission to enact, we do not search for a statutory prohibition against such an enactment; rather, we must search for statutory authority for the enactment.’ ...” (Citations omitted.) Finn v. Planning & Zoning Commission, 156 Conn. 540, 545, 244 A.2d 319 (1968).

Substantive subdivision requirements are set forth in General Statutes § 8-25 and procedural subdivision requirements are set forth in General Statutes § 8-26. The subdivision regulations are required to conform to local zoning regulations. Subdivision regulations cannot impose minimum lot size, shape, width and depth requirements greater than those required under the zoning regulations for the zone where the property is to be subdivided or deny approval of lots that meet all zoning requirements. Christofaro v. Burlington, 217 Conn. 103, 107, 584 A.2d 1168 (1991). Also, subdivision regulations can have provisions to meet the general test in § 8-25 that the land to be subdivided shall be of such character “that it can be used for building purposes without danger to health or the public safety.” Further, the definition of subdivision in the regulations must conform with the definitions of subdivision and resubdivision set forth in General Statutes § 8-18. Peninsula Corporation v. Planning & Zoning Commission, 151 Conn. 450, 451, 199 A.2d 1 (1964).

The enabling statutes do not allow a planning or planning and zoning commission to promulgate subdivision regulations based on historic and architectural concerns, historic streetscape or the integrity and historic character of a historic district. The parties stipulated, and our review of the regulations confirms, that the application conformed to all of the regulations of an R-7 zone. At oral argument, the board’s counsel conceded that if the subject property was not located in an historic district, but in another R-7 zone, the application would have been approved because it met all of the regulations not concerned with “historic.” The reliance by the board in a subdivision application on matters “historic” is outside the enabling statute and is void.

“When a municipal planning commission considers the approval or disapproval of a subdivision plan, it is acting in an administrative capacity rather than in a legislative capacity. Reed v. Planning & Zoning Commission, 208 Conn. 431, 433, 544 A.2d 1213 (1988). ‘The planning commission, acting in its administrative capacity herein, has no discretion or choice but to approve a subdivision if it conforms to the regulations adopted for its guidance.’ Id.

“ ‘ “The designation of a particular use of property as a permitted use establishes a conclusive presumption that such use does not adversely affect the district and precludes further inquiry into its effect on traffic, municipal services, property values, or the general harmony of the district. ” ’ (Emphasis added.) TLC Development, Inc. v. Planning & Zoning Commission, 215 Conn. 527, 532-33, 577 A.2d 288 (1990).” Sowin Associates v. Planning & Zoning Commission, 23 Conn. App. 370, 374, 580 A.2d 91 (1990).

“Subdivision regulations cannot be too general in their terms and must contain known and fixed standards that apply to all similar cases. Sonn v. Planning Commission, 172 Conn. 156, 159-60, 374 A.2d 159 (1976). A commission’s regulations must be reasonably precise in subject matter and reasonably adequate and sufficient to give both the commission and those affected by its decision notice of their rights and obligations. American Power & Light Co. v. Securities & Exchange Commission, 329 U.S. 90, 105, 67 S. Ct. 133, 91 L. Ed. 103 (1946); see Sonn v. Planning Commission, supra, 159.

“General policy statements gleaned from subdivision regulations regarding compliance with public health and safety regulations do not provide a sufficient basis for rejection of a subdivision permit. TLC Development, Inc. v. Planning & Zoning Commission, supra, 530 n.2. Furthermore, the conclusive presumption set forth in TLC Development, Inc., precludes a commission’s reliance on a proposed subdivision’s failure to coincide with the general harmony of the district. Id., 533.” Sowin Associates v. Planning & Zoning Commission, supra, 376.

In the present case, the reasons given by the board for the denial of the subdivision application, even if “historic,” was part of the enabling act, were not based on fixed and known standards that could apply to all similar subdivisions. At best they were general policy statements.

The board made the following findings that demonstrate this point. First, “[t]he proposed subdivision did not meet the purposes of the subdivision regulations as provided in Sec. 6-260 thereof.” This is a general policy statement. Section 6-260 of the Greenwich municipal code subdivision regulations sets forth general purpose statements, no standards and does not mention the words “historic” and “historic street-scape.” They are not mentioned in this section or any other section of the subdivision regulations.

Second, “[the proposed subdivision] does not conform to the Town of Greenwich Plan of Development in that it does not meet the basic objections of preservation of historic and architectural resources.” This is a general purpose statement without any fixed and known standards. In addition, § 98 of the Greenwich town charter specifically provides that the commission shall not refuse approval of any subdivision on the ground that such subdivision creates or will tend to create a use of land contrary to that shown on the plan of development.

Third, “[the proposed subdivision] does not preserve the natural features of the landscape; namely, the Historic streetscape.” There is neither a general nor a specific definition of “historic streetscape” in the regulations, let alone a known or fixed standard.

Finally, the board found that “the integrity of the Historic District would be violated and the appearance and historic character of the Historic District would be impaired by this plan.” There is nothing in the subdivision regulations that has anything to do with the historic district. The land in question is located in an R-7 zone, and the plaintiffs’ subdivision application in every way conforms to the zoning and subdivision requirements of the R-7 zone.

Our disagreement with both the board and the trial court is the confusion of the planning and zoning commission’s duties and functions as to subdivision regulations and applications with the historic district commission’s duties as an administrative board to hear and decide applications for certificates of appropriateness as set forth in General Statutes § 7-147d. As Professor Tondro states, “[t]he historic district commission’s regulatory tool is the certificate of appropriateness. No building can be erected or altered within the district until the commission has issued a certificate. The municipality may not issue a building or demolition permit for any structure until a certificate has first been granted by the commission. Even outdoor advertising signs and bill posters need a certificate. Nor may any area within the district be used for parking, other than residential, without a certificate from the commission (Section 7-147d).” T. Tondro, Connecticut Land Use Regulation (1983 Sup.) p. 80.

The plaintiffs met all the requirements of the subdivision regulation of the town of Greenwich. Because the property is located in an historic district, the plaintiffs must obtain a certificate of appropriateness from the historic district commission before they may build in accordance with their subdivision plan. The plaintiffs are entitled to a fair hearing on their application before a neutral and unbiased historic district commission.

The judgment is reversed and the case is remanded with direction to render judgment sustaining the appeal and ordering the granting of the subdivision application.

In this opinion the other judges concurred.

       In particular, the commission requested the following:
      “1. That Lot 1 be shifted to the southerly property boundary of the tract. Concurrently that portion of the park and playground area displaced by the relocation of Lot 1 shall be moved to the northerly property line of Lot 1.
      “2. The commission observed that the area reserved for park and playground being 14.67 percent, conventionally required to be 15 percent, is acceptable as it is calculated from a gross area which includes a free-throw lot for which park and playground is not required.
      “3. The utility easement shall be located so as to minimize impacts to significant trees.
      “4. The applicant shall meet with the Historic District Commission in order to determine an appropriate house location for Lot 1. The preservation of significant trees shall be taken into consideration in determining house location, as well as conformity as nearby as possible to the existing setback/streetscape of house locations to the south.
      “5. The applicant shall meet with the Conservation Coordinator in order to develop tree preservation details as required by house and utility easement siting.
      “6. That the Declaration of Restrictions for the reserved areas be submitted to the Law Department in accordance with the model document.
      “7. That provisions of access easements be indicated on the record sheet.
      “8. That the existing southerly curbcut be the sole accessway to Lot 1.
      “9. That the appropriate utility easements to the northerly property (Ward) be indicated on the record sheet.
      “10. That a sight line improvement plan indicating any modifications to existing features of walls and trees, etc., be submitted for review and approval by the Department of Public Works. Historic District Commission should also comment on alternate plans to achieve acceptable sight distance, if significant trees or the stone wall are adversely effected.
      “11. The applicant must obtain a sewer permit prior to the issuance of a building permit.
      “12. The applicant shall obtain confirmation from the Engineering Division that there will be no adverse impacts to nearby properties and water bodies due to site drainage.
      “13. The following note is to appear on the construction sheet: ‘Prior to any excavation(s) the applicants), in accordance with Public Act 77-350, shall be required to contact Call Before You Dig, Inc., at 1-800-922-4455 for markout of underground utilities.’
      “14. Submit a driveway plan in accordance with Sec. 6-131 [of the Greenwich Municipal Code], In the event significant open space or trees are impacted, it is recommended that the applicant apply for a variance in order to use as much of the existing driveway as possible while providing safe sight distance and maneuverability. The plan should be reviewed with Planning Staff, HDC and D.P.W. prior to submitting final plan.”

       General Statutes § 8-25 provides in part: “Such regulations shall provide that the land to be subdivided shall be of such character that it can be used for building purposes without danger to health or the public safety that proper provision shall be made for water, drainage and sewerage and . . . that the proposed streets are in harmony with existing or proposed principal thoroughfares shown in the plan of development as described in section 8-23, especially in regard to safe intersections with such thoroughfares, and so arranged and of such width, as to provide an adequate and convenient system for present and prospective traffic needs. . . .” Section 8-25 also permits regulation of street grades and the extent of improvement of subdivision roads, open spaces, parks and playgrounds, soil erosion and sediment controls, the provision of public utilities and services, and energy efficient patterns of development and use.

       These regulations can include requirements for an application form with required information on it, a proposed subdivision map, a topographic map, a soil suitability report for septic systems on the proposed lots, engineer drawings for proposed roads and/or drainage facilities, and a map showing inland wetland area boundaries.

       “[Greenwich Municipal Code Subdivision Regulations] Sec. 6-260. Purposes of Article.
      (a) The pin-poses of this Article shall be to:

        (1) Further the orderly development of the Town in accordance with the Town Plan of Development.
      (2) Insure that any land subdivided can be used for building purposes without danger to health or public safety. (3/9/81)
      (3) Regulate the layout of streets in accordance with sound engineering principle to further the orderly development of the existing and projected street systems of the Town.
      (4) Control the layout of lots to protect the environment.
      (5) Regulate the layout, design and construction of drains along natural drainage routes and watercourses to further the orderly and efficient development of the drainage system of the Town.
      (6) Provide for protective control measures in areas subject to flooding.
      (7) Secure the preservation of natural features of the landscape and the setting aside of open space for the recreational needs of future residents.
      (8) Control the placement of utilities.”

       See footnote 8, infra.

       “[Greenwich Town Charter] Sec. 98. Plan; limitation on effect.
      “(a) The Plan of Development shall not, except as specifically provided in this Article, prevent the use of any land for any purpose otherwise lawful, and shall not in any way reduce the amount of the award which any landowner may be entitled to receive for his land in any condemnation proceedings, whether or not the landowner or his predecessors in title shall have improved or altered his land contrary to the Plan of Development.
      “(b) The Commission shall not refuse approval of any subdivision on the ground that such subdivision creates or will tend to create a use of land contrary to that shown upon the Plan of Development, except insofar as the Commission may, under Section 101, require the streets and drains in such subdivision to conform to the street and drainage system shown on the Plan of Development.”

       “[General Statutes] Sec. 7-147d. certificate of appropriateness: parking areas, (a) No building or structure shall be erected or altered within an historic district until after an application for a certificate of appropriateness as to exterior architectural features has been submitted to the historic district commission and approved by said commission.
      “(b) No building permit for erection of a building or structure or for alteration of an exterior architectural feature within an historic district and no demolition permit for demolition or removal of a building or structure within an historic district shall be issued by a municipality or any department, agency or official thereof until a certificate of appropriateness has been issued. A certificate of appropriateness shall be required whether or not a building permit is required.
      “(c) The historic district commission may request such plans, elevations, specifications, material and other information, including in the case of demolition or removal, a statement of the proposed condition and appearance of property after such demolition or removal, as may be reasonably deemed necessary by the commission to enable it to make a determination on the application. The style, material, size and location of outdoor advertising signs and bill posters within an historic district shall also be under the control of such commission. The provisions of this section shall not be construed to extend to the color of paint used on the exterior of any building or structure.
      “(d) No area within an historic district shall be used for industrial, commercial, business, home industry or occupational parking, whether or not such area is zoned for such use, until after an application for a certificate of appropriateness as to parking has been submitted to the commission and approved by said commission. The provisions of this section shall apply to the enlargement or alteration of any such parking area in existence on October 1, 1973.”

       We note that the trial court incorrectly relied on § 6-266 (a) (19) of the Greenwich municipal code subdivision regulations. That section addresses environmental concerns in the context of the preliminary layout, and provides in relevant part:
      “PRELIMINARY LAYOUT CONTENTS.
      (a) . . . The preliminary layout shall include as many of the following items of information as is practicable.
      * * *
      (19) For a subdivision of ten (10) lots or more or the subdivision of ten (10) or more acres, an environmental assessment by qualified environmental specialists shall be provided. The Commission may require said assessment for smaller subdivisions if deemed necessary. The assessment shall include an evaluation of the following: (3/9/81)
      (a) Conformance with Open Space Plan of Development
      (b) Significant wetlands
      (c) Steep Slopes
      (d) Stormwater Drainage
      (e) Soils capabilities
      (f) Vegetation including forested areas and the identification of trees over 10” in caliper when not in part of forested areas.
      (g) Significant geological formations
      (h) Historical and archaelogical factors
      (i) Animal habitats
      ® Water availability and quality
      (k) Aquifer protection in accordance with the Statutes of the State of Connecticut
      (l) Other data which the Commission deems appropriate
      The environmental assessment shall be subject to a review, after the receipt of recommendations of the Conservation Commission, by the Planning and Zoning Commission including the mitigation measures for minimizing environmental impact before the applicant proceeds to final plan.”


author: Daly, J.

text:
    Philip M. Perlah v. S.E.I. Corporation et al.
    (10838)
    Daly, Lavery and Freedman, Js.
    Argued June 9
    decision released September 8, 1992

      Gerald, Hecht, with whom was Frank Indelicato, for the appellant (defendant James Malloy).

      Andrew F. Fink, for the appellee (plaintiff).
   Daly, J.

The defendant James Malloy appeals from the trial court’s judgment in favor of the plaintiff, rendered in accordance with the report of an attorney trial referee. The defendant claims that the trial court improperly awarded compensation to the plaintiff for legal services the plaintiff performed before becoming a member of the Connecticut bar.

The following facts are relevant to this appeal. The plaintiff and the defendant had known each other for several years before this transaction. The defendant knew that the plaintiff worked as a corporate attorney at their previous place of employment in Greenwich. During September, 1987, the plaintiff entered the private practice of law and maintained an office at his previous place of employment. In January, 1988, the defendant asked the plaintiff to represent the defendant’s investment group, which sought to acquire the controlling interest in a New York corporation, XI Tech, Inc. From January, 1988, until March, 1988, the plaintiff prepared legal documents and performed other services for the defendant’s investment group. During his representation of the defendant’s investment group, the plaintiff formed a Connecticut corporation to assist in acquiring the New York corporation.

The plaintiff instituted this action to recover attorney’s fees and costs related to his representation of the defendant’s investment group. The plaintiff initially was admitted to the practice of law in the state of New York only. On February 11, 1988, the plaintiff was admitted to the practice of law in the state of Connecticut. In his amended complaint, the plaintiff alleged that in his capacity as an attorney he rendered legal services for the defendant between January 20,1988, and March 14, 1988. In his answer to the complaint, the defendant raised as a special defense that he “had no relationship” with the plaintiff.

This matter was referred to an attorney state trial referee. The referee found that an oral agreement existed between the plaintiff and the defendant concerning the plaintiff’s representation of the defendant’s investment group. The referee rejected the defendant’s argument that an award of attorney’s fees for legal services performed before the plaintiff was admitted to practice in Connecticut violated General Statutes § 51-88. The referee reasoned that § 51-88 prohibits only an attorney not licensed to practice in Connecticut from appearing in court and does not prohibit an attorney licensed to practice in New York from engaging in interstate corporate practice involving the acquisition of a New York corporation. The plaintiff was awarded $15,535.85, representing fees and costs.

On June 25,1991, the defendant filed a motion to correct and objections to the acceptance of the referee’s report. The referee stated that he considered the plaintiff to be acting as a New York attorney who represented a Connecticut resident. He determined that a lawyer licensed in New York did not have to maintain an office in the state of New York in order to render legal services. The referee also found that there was no evidence indicating how much of the plaintiff’s time involved creating the Connecticut corporation. The referee also rejected the defendant’s argument that the plaintiff’s representation before being admitted to practice in Connecticut violated § 51-88. The trial court accepted the referee’s report and rendered judgment in accordance with the report. The defendant appealed from this decision.

The defendant claims that the plaintiff was not entitled to recover attorney’s fees for the legal services he performed in Connecticut before being admitted to practice in this state. Before addressing this claim, we must determine whether it was properly preserved. The plaintiff argues that the defendant failed to plead as a special defense that § 51-88 barred recovery in this action.

The defendant filed a special defense claiming only that he had no relationship with the plaintiff. The defendant raised the issue concerning the violation of § 51-88 at trial during his oral motion for dismissal at the end of the plaintiff’s case-in-chief. The defendant further pursued this claim in his motion to correct. The plaintiff never objected to the defendant’s argument concerning § 51-88. Because the plaintiff did not object to the evidence and argument related to the claimed defense that § 51-88 prohibited recovery of attorney’s fees, the plaintiff has waived his right to raise a claim of “pleading deficiency” by the defendant. Pepe v. New Britain, 203 Conn. 281, 286, 524 A.2d 629 (1987); Carnese v. Middleton, 27 Conn. App. 530, 537, 608 A.2d 700 (1992).

Section 51-88 prohibits the practice of law in or outside a Connecticut courtroom by a person not admitted as an attorney under the provisions of General Statutes § 51-80. Grievance Committee v. Dacey, 154 Conn. 129, 140, 222 A.2d 339 (1966), appeal dismissed, 386 U.S. 683, 87 S. Ct. 1325, 18 L. Ed. 2d 404 (1967). In Dacey, our Supreme Court rejected the defendant’s argument “that the practice of law, out of court, is not forbidden unless carried on as a business . . . .’’Id. Here, the plaintiff was clearly engaged in the practice of law through his representation of the defendant’s investment group even though he did not appear in a Connecticut courtroom.

“Generally, even though duly admitted in another state, an attorney may not recover compensation for legal services unless he has been admitted to practice in the jurisdiction where the services were rendered.” 7 Am. Jur. 2d 280, Attorneys at Law § 242; see Taft v. Amsel, 23 Conn. Sup. 225, 227, 180 A.2d 756 (1960). In Taft, the plaintiff, an attorney licensed in New York sought to recover compensation for legal services performed on behalf of the defendants who were residents of Connecticut. The legal services were primarily rendered in Connecticut and involved the creation of an interstate transportation business. The trial court in Taft concluded that the plaintiff was not entitled to any recovery of compensation for legal services. The Taft court concluded “that no one is entitled to recover compensation for services as an attorney at law unless he has been duly admitted to practice before the court, or within the jurisdiction in which the services were rendered, and is an attorney in good standing at the time. . . . And the same rule applies to a claim based on quantum meruit.” Taft v. Amsel, supra, 227-28. Although we are not bound by the Taft decision; see Rodia v. Tesco Corporation, 11 Conn. App. 391, 397, 527 A.2d 721 (1987); we agree with its reasoning and adopt it. See State v. Johnson, 28 Conn. App. 708, 717, 613 A.2d 1344 (1992).

Here, the plaintiff practiced law in Connecticut, preparing documents for the acquisition of a New York corporation by the defendant’s investment group. The plaintiff performed some services before he was admitted to practice in Connecticut on February 11, 1988. We conclude that § 51-88 prohibited the plaintiff from receiving compensation for legal services performed before being admitted to practice in Connecticut.

The trial court’s award of attorney’s fees to the plaintiff for services performed before being admitted to practice in Connecticut was not legally correct. Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221, 435 A.2d 24 (1980).

The judgment is reversed and the case is remanded for further proceedings to determine the amount of compensation payable for legal services performed in Connecticut after the plaintiff’s admission to practice in Connecticut.

In this opinion the other judges concurred.

       On December 18, 1990, the defendants S.E.I. Corporation and Peter J. Shippole were defaulted and are not involved in this appeal. We refer in this opinion to James Malloy as the defendant.

       General Statutes § 51-88 (a) provides: “A person who has not been admitted as an attorney under the provisions of section 51-80 shall not: (1) Practice law or appear as an attomey-at-law for another, in any court of record in this state, (2) make it a business to practice law, or appear as an attomeyat-law for another in any such court, (3) make it a business to solicit employment for an attomey-at-law, (4) hold himself out to the public as being entitled to practice law, (5) assume to be an attomey-at-law, (6) assume, use or advertise the title of lawyer, attorney and counselor-at-law, attorney-at-law, counselor-at-law, attorney, counselor, attorney and counselor, or an equivalent term, in such manner as to convey the impression that he is a legal practitioner of law, or (7) advertise that he, either alone or with others, owns, conducts or maintains a law office, or office or place of business of any kind for the practice of law.”


author: Freedman, J. Landau, J.,

text:
    Connecticut National Bank v. Investors Capital Corporation et al.
    (10973)
    Daly, Landau and Freedman, Js.

      Argued June 4
    decision released September 8, 1992

      Richard P. Weinstein, for the appellants (defendants).

      Darrell K. Fennell, pro hac vice, with whom were Theodore R. Killian and, on the brief, Michael Winger, for the appellee (plaintiff).
   Freedman, J.

The defendants appeal from the judgment of the trial court rendered in favor of the plaintiff for $359,484.84. The defendants claim that the trial court abused its discretion (1) by entering a default against them for their failure to comply with a court order to disclose assets, and (2) by denying their motion to set aside the default. We affirm the judgment of the trial court.

The essential facts pertinent to this appeal are not substantially in dispute. During 1988 and 1989, the plaintiff made three separate $100,000 loans to the defendant Investors Capital Corporation (Investors). The payment of each loan was personally guaranteed, jointly and severally, by the other two defendants, Richard Breault and John Cellino. Each transaction was a “commercial transaction” as defined in General Statutes § 52-278a (a). As such, the note underlying each loan contained a commercial waiver provision wherein the defendants waived their right to notice and to a hearing on the right of the plaintiff to a prejudgment remedy.

Investors was dissolved in late 1989, an act constituting a default under the terms of the underlying notes. On July 23, 1990, the plaintiff simultaneously filed a complaint for collection of the balance due on the notes and an application for a prejudgment remedy, together with all of the necessary supporting documents. The prejudgment remedy was granted by the trial court, ex parte, on August 1,1990. The defendants, who had received notice of both the collection action and the prejudgment remedy as well as notice of their statutory rights pursuant to General Statutes § 52-278e (b), did not move to dissolve, vacate or modify the prejudgment remedy. On August 9, 1990, the plaintiff filed, pursuant to General Statutes § 52-278n (a), a motion that sought an order requiring the defendants to disclose the existence, location and extent of their assets.

On March 25, 1991, the defendants filed an answer to the plaintiffs complaint and a counterclaim. In their answer, the defendants denied having made a knowing and intelligent waiver of their rights to notice and to a hearing on the plaintiffs prejudgment remedy application. They raised as a special defense that they did not knowingly and intelligently make the commercial waiver contained in the notes, and, in their counterclaim, sought damages for a violation of their constitutional rights by the issuance of the prejudgment remedy.

On August 12,1991, the trial court conducted a hearing on the plaintiff’s motion to compel disclosure of the defendants’ assets. The defendants did not appear at this hearing. The trial court granted the plaintiff’s motion and ordered the defendants to comply by August 19,1991. When the defendants failed to comply, the plaintiff, on August 23, 1991, filed another motion to compel disclosure of assets and requested that if the defendants failed to comply with the court’s order within a specified period of time, the court should enter a default against the defendants on the plaintiff’s complaint and on the defendants’ special defense, and nonsuit the defendants on their counterclaim. On September 23, 1991, the trial court conducted a hearing on that motion. The defendants again failed to appear. The court granted the plaintiff’s motion and ordered that the defendants be defaulted and nonsuited, but that the order would be vacated if they complied with the disclosure order by the end of the business day on September 26, 1991. The defendants did not comply.

On October 3,1991, the defendants finally took action with respect to the prejudgment remedy and the orders compelling disclosure of assets. On that date, the defendants filed, for the first time, a motion to dissolve the prejudgment remedy and a “motion to reargue the order disclosing assets.” Nothing was mentioned in the motion to reargue concerning the orders of default and nonsuit. On October 10, 1991, the defendants filed a motion for articulation in which they sought a clarification regarding the effective date of the September 23, 1991 order of default and nonsuit. All of the defendants’ motions were heard by the trial court on October 21,1991. The trial court made it clear that the default and nonsuit were effective as of September 23, 1991, subject to being vacated if the defendants complied by September 26, 1991, and denied the motion to dissolve and the motion to reargue.

On October 24, 1991, the defendants filed a motion to open the default and nonsuit that was entered by the trial court on September 23,1991. The defendants argued that the trial court had improperly ordered the disclosure of assets prior to a finding of probable cause on the plaintiff’s prejudgment remedy and without providing the defendants with an opportunity to contest the validity of the commercial waiver, and then defaulted and nonsuited the defendants on the basis of their failure to comply with the disclosure order. On November 12,1991, after a hearing at which the plaintiff and the defendants were present, the trial court denied the motion to set aside. On December 2, 1991, the defendants filed a notice of intent to appeal the trial court’s denial of their motion to set aside the default. After a hearing in damages, the trial court, on December 10, 1991, entered judgment in favor of the plaintiff against Investors Breault and Cellino for $359,484.84.

In this appeal, the defendants argue that the default entered against them for failing to disclose assets violated their constitutional due process rights because it was based on an ex parte finding of probable cause in a commercial waiver transaction in which the defendants had no meaningful opportunity to be heard. They argue that the trial court abused its discretion in entering the default and by denying their motion to set aside the default.

As a preliminary matter, we note that on October 3, 1991, the defendants filed a motion to dissolve the prejudgment remedy, a motion the statutory authority for which is derived from General Statutes § 52-278e. General Statutes § 52-2781 provides that appeals from an order denying a motion to dissolve under § 52-278e must be taken within seven days of the rendering of the order. Because the defendants failed to appeal the denial of their motion to dissolve within seven days, we are precluded from addressing the merits of the trial court’s action. We concern ourselves with only the entry of the default and the refusal of the trial court to set it aside.

Practice Book § 230A and General Statutes § 52-278n permit the trial court to compel a defendant “to disclose property in which he has an interest or debts owing to him sufficient to satisfy a prejudgment remedy.” Practice Book § 231 provides the means by which the trial court may enforce its disclosure orders. Specifically, it provides: “If any party has . . . failed to comply with a discovery order made pursuant to Sec. 230A . . . the court may, on motion, make such order as the ends of justice require. Such orders may include the following: (a) The entry of a nonsuit or default against the party failing to comply . . . .”

The entry of sanctions pursuant to Practice Book § 231 rests within the sound discretion of the trial court. Rullo v. General Motors Corporation, 208 Conn. 74, 78, 543 A.2d 279 (1988); Zaleski v. Zaleski, 21 Conn. App. 185, 189, 572 A.2d 76 (1990). “In reviewing a claim that this discretion has been abused the unquestioned rule is that great weight is due to the action of the trial court and every reasonable presumption should be given in favor of its correctness. . . . [T]he ultimate issue is whether the court could reasonably conclude as it did.” (Citations omitted; internal quotation marks omitted.) Rullo v. General Motors Corporation, supra, 78-79. With respect to the plaintiff’s uncontested motions, the trial court twice ordered the defendants to disclose assets sufficient to satisfy the plaintiff’s prejudgment remedy, which itself had never been challenged by the defendants at the time of the orders compelling disclosure. The defendants failed to comply with both disclosure orders. The trial court, therefore, did not abuse its discretion in entering a default against the defendants.

The defendants argue, however, that the trial court had no authority to compel disclosure because the trial court never made a finding of probable cause, a necessary prerequisite to an order compelling disclosure under General Statutes § 52-278n and Practice Book § 230A, and because they were denied an opportunity to be heard on the validity of the commercial waiver. The defendants’ argument is misplaced. First, the record clearly indicates that on August 1, 1990, the trial court, Fracasse, J., entered an order granting the plaintiff’s application for a prejudgment remedy. That order specifically provided: “[I]t is found that there is probable cause to sustain the validity of the plaintiff’s claim and the application for garnishment and attachment should be granted ex parte because of the commercial waivers of prejudgment remedies referred to above.”

Second, the defendants attempt to mount a much belated constitutional challenge to the issuance of the underlying prejudgment remedy. Contrary to their claim, they were not denied an opportunity to challenge the validity of the commercial waiver or the issuance of the prejudgment remedy. Rather, they chose not to challenge it at the time, and further chose not to obey two court orders compelling disclosure. “An order of the court must be obeyed until it has been modified or successfully challenged. See Fox v. First Bank, 198 Conn. 34, 40 n.3, 501 A.2d 747 (1985).” Jaconski v. AMF, Inc., 208 Conn. 230, 234-35, 543 A.2d 728 (1988). “A party is presumed to be aware of the rules of practice and thus to know that disobedience of a court order may result in a default or nonsuit under [Practice Book § 231].” Id., 235. We will not permit a party to stand idly by while the trial court twice has compelled it to submit to a proper discovery request, and then on appeal challenge the legal authority for the order compelling discovery in the first place. A challenge to the trial court’s order compelling disclosure should properly have been made to the trial court before the default had entered. Because the defendants chose not to present such a challenge until such a late date, we will not consider it for the first time in this appeal.

The defendants also claim that the trial court abused its discretion by denying their motion to set aside the default. “A motion to set aside a default where no judgment has been rendered may be granted by the court for good cause shown upon such terms as it may impose. As part of its order the court may extend the time for filing pleadings or disclosure in favor of a party who has not been negligent. ...” Practice Book § 376.

The determination of whether to set aside a default is within the discretion of the trial court. Weldon Business Group v. Schweitzer, 22 Conn. App. 552, 555, 577 A.2d 1126 (1990); Voluntown v. Rytman, 21 Conn. App. 275, 283, 573 A.2d 336, cert. denied, 215 Conn. 818, 576 A.2d 548 (1990). “The action of the trial court is not to be disturbed unless it has abused its broad discretion, and in determining whether there has been such abuse every reasonable presumption should be made in favor of its correctness. ... In determining whether there has been an abuse of discretion, the ultimate issue is whether the court could reasonably conclude as it did.” (Citations omitted; internal quotation marks omitted.) Weldon Business Group v. Schweitzer, supra, 554.

The trial court reasonably concluded that the default should not have been set aside. The trial court ordered the defendants to disclose assets on two occasions, and both times the defendants failed to comply with the orders. The defendants failed to appear at the hearing on both orders. They also failed to present any valid reason for their failure to comply with the court’s orders. The basis of the defendants’ motion to open went to the merits of the prejudgment remedy itself, which the trial court had granted more than a year prior to the entry of the default, and which had not been challenged by the defendants until after the default had been entered. Such a challenge should have been raised at a much earlier stage in the proceedings, and had nothing to do with the defendants’ failure to comply with disclosure orders.

The judgment is affirmed.

In this opinion Daly, J., concurred.

Landau, J.,

concurring. Although I agree with the result the majority reaches, I file a concurrence to point out my belief that there is no procedure that allows a motion to reargue.

In its rendition of the facts, the majority states correctly that on October 3, 1991, “the defendants filed . . . a‘motion to reargue the order disclosing assets.’ Nothing was mentioned in the motion to reargue concerning the orders of default and nonsuit. . . . The trial court . . . denied the . . . motion to reargue.” I believe our continuing recognition of a “motion” that “no statute or trial court rule of practice specifically authorizes”; K. A. Thompson Electric Co. v. Thompson, 24 Conn. App. 758, 759, 591 A.2d 822 (1991); does a disservice to the bench, bar and litigants.

Although cognizant of the language of Thompson, citing Springfield-Dewitt Gardens, Inc. v. Wood, 143 Conn. 708, 709 n.1, 125 A.2d 488 (1956); in which this court recognized our inherent authority to determine whether such a motion should be considered, and, if so, whether to act on the motion, I note that the footnote in Springfield-Dewitt, on which the Thompson, court relied, does not even rise to the level of obiter dictum as a collateral opinion. The footnote was inserted in a section immediately preceding the majority opinion to explain a ruling in a prior proceeding and was penned by the Chief Justice, who dissented from the majority opinion on the substantive appeal. Moreover, the procedure in Springfield-Dewitt and in DeLucia v. Home Owner’s Loan Corporation, 130 Conn. 467, 470, 35 A.2d 868 (1944), on which the Springfield-Dewitt court relied, involved a “motion to rehear,” rather than a “motion to reargue.”

Our continued recognition, albeit implied, of a procedure that does not exist by virtue of any rule or statute and, thus, has no checks or limitations, and that continues to clog our short calendar dockets and consume the valuable time of our trial bench, makes little sense to me. As Judge Dannehy so aptly noted, “[e]ither we adhere to the rules or we do not adhere to them.” Osborne v. Osborne, 2 Conn. App. 635, 639, 482 A.2d 77 (1984).

Accordingly, I concur in the result.

       General Statutes § 52-278a provides in pertinent part: “(a) ‘Commercial transaction’ means a transaction which is not a consumer transaction.
      “(b) ‘Consumer transaction’ means a transaction in which a natural person obligates himself to pay for goods sold or leased, services rendered or moneys loaned for personal, family or household purposes.”

       When seeking a prejudgment remedy pursuant to General Statutes § 52-278Í, as amended by Public Acts 1991, No. 91-315, § 2, the commercial waiver section, the plaintiff “shall include in the process served on the defendant a notice satisfying the requirements of subsection (b) of section 52-278e . . . .” General Statutes § 52-278e (b), as amended by Public Acts 1991, No. 91-315, § 1 (b), provides: “If a prejudgment remedy is granted pursuant to this section, the plaintiff shall include in the process served on the defendant the following notice prepared by the plaintiff: YOU HAVE RIGHTS SPECIFIED IN THE CONNECTICUT GENERAL STATUTES, INCLUDING CHAPTER 903a, WHICH YOU MAY WISH TO EXERCISE CONCERNING THIS PREJUDGMENT REMEDY. THESE RIGHTS INCLUDE: (1) THE RIGHT TO A HEARING TO OBJECT TO THE PREJUDGMENT REMEDY FOR LACK OF PROBABLE CAUSE TO SUSTAIN THE CLAIM; (2) THE RIGHT TO A HEARING TO REQUEST THAT THE PRE JUDGMENT REMEDY BE MODIFIED, VACATED OR DISMISSED OR THAT A BOND BE SUBSTITUTED; AND (3) THE RIGHT TO A HEARING AS TO ANY PORTION OF THE PROPERTY ATTACHED WHICH YOU CLAIM IS EXEMPT FROM EXECUTION.”

       General Statutes § 52-278n (a) provides: “The court may, on motion of a party, order an appearing defendant to disclose property in which he has an interest or debts owing to him sufficient to satisfy a prejudgment remedy. The existence, location and extent of the defendant’s interest in such property or debts shall be subject to disclosure. The form and terms of disclosure shall be determined by the court.”

       Although the defendants entitled this motion as a motion to reopen, it is more properly characterized as a motion to set aside the default and nonsuit. Practice Book § 376 provides the method for setting aside defaults where judgment has not been rendered. The proper motion is a motion to set aside the default. For purposes of this appeal, therefore, we will treat the defendants’ motion to open the default as a motion to set aside pursuant to Practice Book § 376.

       The defendants’ notice of their intent to appeal, as well as their preliminary statement of issues and their appellate brief, raise and present only the issue of the alleged invalidity of the default, not the nonsuit. We therefore consider any challenge to the entry of the nonsuit abandoned.

       General Statutes § 52-2781 provides in pertinent part: “(a) An order (1) granting or denying a prejudgment remedy following a hearing under section 52-278d or (2) granting or denying a motion to dissolve or modify a prejudgment remedy under section 52-278e or (3) granting or denying a motion to preserve an existing prejudgment remedy under section 52-278g shall be deemed a final judgment for purposes of appeal.
      “(b) No such appeal shall be taken except within seven days of the rendering of the order from which the appeal is to be taken. ...”

       General Statutes § 52-278n (c) provides: “The court may order disclosure at any time prior to final judgment after it has determined that the party filing the motion for disclosure has, pursuant to section 52-278d, 52-278e or 52-278Í, probable cause sufficient for the issuance of a prejudgment remedy.” Practice Book § 230A (c) provides virtually identical language.

       “The bench and bar are entitled to expect uniform application of the rules of practice. The practice of law and the performance of a trial judge’s duties both are sufficiently difficult without the additional burden of uncertainty as to which rules will be strictly enforced and which rules will be liberally interpreted . . . .” Birmingham v. Kielczewski, 17 Conn. App. 219, 225, 551 A.2d 1260 (1988) (O’Connell, J., dissenting).


author: Foti, J.

text:
    State of Connecticut v. Concetta Russell
    (10354)
    Norcott, Foti and Lavery, Js.
    Argued May 8
    decision released September 8, 1992

      Linda P. Stamborsky, with whom, on the brief, was Patricia Buck Wolf, for the appellant (defendant).

      Marjorie Allen Dauster, deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Elpedio Vitale, assistant state’s attorney, for the appellee (state).
   Foti, J.

After a trial by jury, the defendant was convicted of conspiracy to commit assault in the first degree in violation of General Statutes §§ 53a-48 (a) and 53a-59 (a) (1), attempt to commit assault in the first degree as an accessory in violation of General Statutes §§ 53a-8, 53a-49 (a) (2) and 53a-59 (a) (1), and criminal mischief in the first degree as an accessory in violation of General Statutes §§ 53a-8 and 53a-115 (a) (1). On appeal, the defendant claims that the trial court (1) improperly admitted hearsay statements of an alleged coconspirator, (2) improperly found that there was sufficient evidence to convict her of attempted assault in the first degree and (3) abused its discretion in allowing the state to ask leading questions of a witness. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. On the evening of August 10,1989, the defendant was visiting her boyfriend, Dominic Torlish. As the defendant, Torlish and Gerard Edwards, also known as G-Man, sat at the kitchen table in the Torlish residence, the defendant stated that she hated her sister, Carmel Staplins, and would get back at her for testifying against the defendant’s husband at his recent trial on several felony charges. Immediately after the defendant’s husband had been sentenced, the defendant had threatened Staplins, pointing a finger in her face and screaming, “You’re dead.” The defendant often expressed hatred for her sister.

Torlish previously had informed the defendant that Edwards claimed to be a hitman. As the three sat at the table that evening, Edwards displayed his gun to the defendant. Later, Torlish saw the defendant give Edwards several bills, one of which was a $20 bill, and heard the defendant say, “Here is this for taking care of what you got to take care of tonight.” The defendant then told both Torlish and Edwards, “Be careful when you go to do this,” and she gave Torlish directions to Staplins’ house. Neither Torlish nor Edwards knew Staplins.

At 10:40 p.m., Torlish and Edwards left the house and drove a tan Datsun to Staplins’ house. Edwards sat in the passenger seat and Torlish drove. At approximately 11 p.m., Torlish stopped the car in front of Staplins’ house, and Edwards climbed through the passenger window, sat on the car door, and fired over the roof of the car at the house. Edwards emptied his gun, and nine shots hit the house near a large bow window. The lights were on inside the house at the time. Staplins had a habit of reading at night on the couch in front of the bow window, and the defendant was aware of this. At the time of the shooting, however, Staplins was in her bedroom, and her husband was in the basement. Neither was injured by the gunfire.

Staplins and other witnesses observed a light colored Datsun leaving the scene. While speeding away, Torlish lost control of the car and hit a telephone pole. Tan colored paint chips were later recovered from the ground near the pole. A few days after the shooting, Torlish disposed of the damaged vehicle at a junkyard.

On August 11,1989, when the defendant saw a news account of the shooting on television, she stated to Torlish, “I paid him good money and he didn’t do a good job.” She also told an acquaintance that the shooting had occurred because her sister deserved it. After the shooting, she told Torlish that they should keep their relationship a secret.

On August 14, 1989, Edwards was arrested on an outstanding warrant. When arrested, he had in his possession a gun later determined to have fired the casings and two of the bullets recovered at the scene of the shooting.

I

The defendant first claims that the trial court improperly admitted hearsay statements of her alleged co-conspirator, Torlish. The defendant argues that independent of these hearsay statements, the state did not present sufficient evidence to convict her for conspiracy to commit assault in the first degree in violation of General Statutes §§ 53a-48 (a) and 53a-59 (a) (1).

We will not review this claim, however, because of the defendant’s failure to comply with Practice Book § 4065 (d) (3) for briefing claimed errors in evidentiary rulings. “When raising evidentiary issues on appeal, all briefs should identify clearly what evidence was excluded or admitted, where the trial counsel objected and preserved his rights and why there was error.” Aspiazu v. Orgera, 205 Conn. 623, 636-37 n.5, 535 A.2d 338 (1987); Practice Book § 4065 (d) (3). “ ‘The bare assertion in a brief that the evidence was improperly [admitted], coupled with transcript page references, will not suffice. . . . It is our strong policy that rulings claimed as evidentiary errors to be reviewed by this court be provided and printed in the briefs as required and outlined by the Practice Book.’ (Citation omitted.)” State v. Siller, 12 Conn. App. 395, 402, 530 A.2d 1106, cert. denied, 205 Conn. 811, 532 A.2d 586 (1987).

In her brief, the defendant claims that the trial court improperly admitted Torlish’s statements “as to Concetta Russell’s plans with Gerard Edwards,” and his statements “alleging that Concetta Russell engaged in acts that amounted to criminal conspiracy.” She does not, however, set forth the specific testimony she claims was improperly admitted by the trial court. Therefore, we decline to review this claim.

II

The defendant next claims that there was insufficient evidence to prove her guilty beyond a reasonable doubt of attempted assault in the first degree in violation of General Statutes §§ 53a-8, 53a-49 (a) (2) and 53a~59 (a) (1).

The standard for review of a challenge to the sufficiency of the evidence is well known. “ ‘We first review the evidence presented at trial, construing it in the light most favorable to sustaining the facts expressly found by the trial court or impliedly found by the jury. We then decide whether, upon the facts thus established and the inferences reasonably drawn therefrom, the trial court or the jury could reasonably have concluded that the cumulative effect of the evidence established the defendant’s guilt beyond a reasonable doubt.’ ” State v. Lewis, 220 Conn. 602, 606, 600 A.2d 1330 (1991), quoting State v. Jarrett, 218 Conn. 766, 770-71, 591 A.2d 1225 (1991). The probative force of the evidence is not diminished because the evidence is circumstantial rather than direct. State v. Marra, 215 Conn. 716, 726, 579 A.2d 9 (1990).

The defendant was convicted of criminal attempt to commit assault in the first degree as an accessory in violation of §§ 53a-8, 53a-49 (a) (2) and 53a-59 (a) (1). “ ‘Under General Statutes § 53a-49 (a) (2), “[a] person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for the commission of the crime he . . . intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.”. . .’ ” (Citations omitted.) State v. Pinnock, 220 Conn. 765, 774, 601 A.2d 521 (1992); State v. Gonzalez, 222 Conn. 718, 725, 609 A.2d 1003 (1992). The defendant argues that the state failed to prove that she had the requisite intent to commit assault and that her actions constituted a substantial step toward the commission of the crime of assault in the first degree. We disagree.

Our initial inquiry is whether the evidence was sufficient for the jury to conclude that the defendant had the intent to commit assault. In order to convict the defendant as an accessory to attempted assault, the state had to prove that the defendant solicited, requested, commanded, importuned or intentionally aided the principal to engage in conduct constituting an offense and that the defendant acted with the intent to commit the offense. General Statutes § 53a-8; State v. Grant, 219 Conn. 596, 603, 594 A.2d 459 (1991); State v. Tucker, 9 Conn. App. 161, 164, 517 A.2d 640 (1986). The crime of attempted assault requires proof of intent to cause serious physical injury. General Statutes § 53a-59 (a) (1). Intent can be inferred from the defendant’s verbal or physical conduct and the surrounding circumstances. State v. Pinnock, supra.

On the basis of the evidence presented at trial, the jury could reasonably have found that the defendant intended to cause serious physical injury to Staplins. After her husband’s trial, the defendant threatened Staplins outside the courthouse saying “You’re dead,” and she repeatedly expressed hatred for her sister. Three days after her husband’s sentencing, the defendant gave money to Edwards, who had shown her his gun and who she believed was a hitman. She told him, “This is for taking care of what you got to take care of tonight.” She then gave Edwards and Torlish directions to her sister’s house.

When Edwards and Torlish arrived at Staplins’ house, Edwards fired nine shots at the large bow window in the front of the house. There were lights on in the living room at the time. The jury could reasonably have inferred that Edwards targeted the window because the defendant had apprised him of Staplins’ habit of reading at night on the couch in front of the bow window. Furthermore, after the shooting, upon hearing news accounts of the event, the defendant complained that she had paid good money for a job that was not well done.

We next determine whether the evidence was sufficient to establish, as required by § 53a-49 (a) (2), that the defendant’s actions constituted a substantial step in a course of conduct planned to culminate in her commission of the crime of assault in the first degree.

“To constitute a ‘substantial step,’ the conduct must be ‘strongly corroborative of the actor’s criminal purpose.’ . . . [T]his standard properly directs attention to overt acts of the defendant which convincingly demonstrate a firm purpose to commit a crime.” (Citation omitted.) State v. Green, 194 Conn. 258, 276-77, 480 A.2d 526 (1984), cert. denied, 469 U.S. 1191, 105 S. Ct. 964, 83 L. Ed. 2d 969 (1985); State v. Taft, 25 Conn. App. 578, 582-83, 595 A.2d 918, cert. denied, 220 Conn. 921, 597 A.2d 343 (1991). The act or acts must constitute more than mere preparation but at least must be “ ‘the start of a line of conduct which will lead naturally to the commission of a crime which appears to the [defendant] at least to be possible of commission by the means adopted.’ ” State v. Green, supra, 276; State v. Rochette, 25 Conn. App. 298, 305, 594 A.2d 1006, cert. denied, 220 Conn. 912, 597 A.2d 337 (1991).

The jury could reasonably have inferred that in giving money to a man who had a gun and whom she believed to be a hitman, along with providing directions to Staplins’ house and information that led Edwards to target the bow window, the defendant took actions constituting a substantial step in a course of conduct planned to culminate in her commission of the crime of assault in the first degree as an accessory.

Ill

Finally, the defendant claims that the trial court abused its discretion in allowing the state to ask leading questions during its direct examination of Torlish. The defendant argues that she was prejudiced because Torlish’s testimony characterized the defendant as a controlling and dominating figure in their relationship, thereby leading the jury to believe that the defendant was the motivational force behind the shooting.

“A question is leading if it suggests an answer in accord with the examiner’s view of the matter rather than calling for an expression of the witness’s observations . . . .” C. Tait & J. LaPlante, Connecticut Evidence (2d Ed.) § 7.12.1, p. 159. “It is axiomatic that trial courts have broad discretion to allow leading questions on direct examination depending upon the circumstances of the individual case. Wright v. Blakeslee, 102 Conn. 162, 168, 128 A. 113 (1925).” Fonsworth v. Sudol, 19 Conn. App. 368, 370, 562 A.2d 578, cert. denied, 212 Conn. 819, 565 A.2d 537 (1989). The trial court’s rulings on leading questions must stand unless prejudice has resulted from their admission. Wright v. Blakeslee, supra; Melanson v. Rogers, 38 Conn. Sup. 484, 488, 451 A.2d 825 (1982).

Although the question regarding the defendant and Torlish’s mother was a leading question, the trial court did not abuse its discretion in allowing the witness to answer. The defendant was not prejudiced because the question was a preliminary inquiry into how the defendant had become acquainted with Torlish and his family. See State v. Costelli, 92 Conn. 58, 65-66, 101 A. 476 (1917). The second question posed by the state was not leading because it did not suggest an answer to the witness, but, rather, called for Torlish to characterize the balance of power in his relationship with the defendant. Furthermore, the defendant was not prejudiced by the trial court’s ruling. A review of the transcript demonstrates that the state presented other evidence regarding the defendant’s controlling nature in her relationship with Torlish, the defendant’s motive to cause harm to Staplins, and her involvement in the crime. From the totality of the evidence, the jury could reasonably have concluded that Torlish and Edwards perpetrated the crime at the defendant’s behest.

The judgment is affirmed.

In this opinion the other judges concurred.

       There is some confusion in the record and briefs as to Edwards’ first name. The first three counts of the information, as well as the defendant’s brief, refer to Edwards as “Gerard,” while the state’s brief and the transcript use “Gerald.”

       Practice Book § 4065 (d) (3) provides in pertinent part: “When error is claimed in any other ruling in a court or jury case, the brief or appendix shall include, where appropriate . . . the question or offer of exhibit; the objection and the ground on which it was based; the ground on which the evidence was claimed to be admissible; the answer, if any; the ruling; and any exception.”

       On direct examination of Torlish, the state inquired:
      “[The State]: So your mother and evidently this defendant became friendly?
      “[The Witness]: Yes, sir.
      “[Defense Counsel]: I object. Counsel is leading.
      “[The Court]: It is leading. I will allow that to stand as a yes answer. Go ahead, counsel. . . .
      “[The State]: Sir, at the weeks preceding August, 1989, say from July to August of 1989, can you describe what your relationship was like with this defendant in terms of money matters or decisions, those types of things?
      “[The Witness]: I don’t understand.
      “[The State]: Whenever there was a decision that had to be made between yourself and the defendant Concetta Russell—
      “[Defense Counsel]: Your Honor, I object. Counsel is leading the witness.
      “[The Court]: We haven’t heard the question yet, counsel. I will let the state’s attorney finish the question. But I will ask, sir, don’t answer it until I had an opportunity to rule on any objection. Okay. Finish your question, counsel.
      “[The State]: Assume for a moment, sir, that there had — there was a decision that had to be made involving your relationship, yourself and the defendant Concetta Russell, okay, whether it be about money or some other important decision, okay. Can you please describe as best you can to the jury how that decision making process would operate, if you could. If you understand my question.
      “[The Court]: Is there any objection, counsel?
      “[Defense Counsel]: I find it to be a leading question. I object to it.
      “[The Court]: Thank you. Objection is overruled. I will note an exception. You can answer the question if you understand it, sir.
      “[The Witness]: I don’t understand.
      “[The State]: If a decision had to be made about, say, a money matter or something involving another major decision, okay, how would that decision be made if you and the defendant were talking about it?
      “[The Witness]: Connie would make the decision.”
      In her brief, the defendant claims that she was prejudiced by the trial court’s rulings on the aforementioned questions. She claims that “[A]fter those objections were overruled . . . defense attorney realize[d] that further objections as to leading the witness would be futile, and therefore did not raise that objection with this witness again.” Because the defendant failed to object on this ground to any other questions and because, in her brief, she has failed to identify other questions specifically as improper, we will review her claim with respect to only those two questions. See Practice Book § 4065 (d) (3).