author: Heiman, J. Lavery, J., dissenting.

text:
    Peter M. Holmes v. Anne S. Holmes et al.
    (11424)
    O’Connell, Lavery and Heiman, Js.
    Argued March 24
    decision released August 3, 1993

      Morgan P. Ames, for the appellant (plaintiff).

      Mark F. Katz, for the appellees (defendants).
   Heiman, J.

The plaintiff appeals from the judgment rendered in favor of the defendants after a trial to the court. The plaintiff claims that the trial court improperly (1) found that he had failed to satisfy his burden of proving the existence of a joint venture between his father and himself, (2) permitted his former attorney to testify as a witness for the defendants in violation of the attorney-client privilege, and (3) denied his motion to open and set aside its ruling regarding the propriety of the attorney testifying. We affirm the judgment of the trial court.

Each of the issues raised by the plaintiff is grounded on a factual determination made by the trial court. The trial court found, on the basis of the evidence presented, the plaintiff had failed to establish by a fair preponderance of the evidence that he was entitled to a one-half interest in certain property that he claimed was the subject of a joint venture he had entered into with his father. The named defendant, the plaintiff’s mother, denied the existence of the joint venture and asserted that she was the sole owner. “[I]n an ordinary civil action the party upon whom rests the burden of proof as to a fact or issue has sustained that burden if the evidence, considered fairly, induces in the trier’s mind a reasonable belief that it is more probable than otherwise that the fact or issue is true.” Hennessey v. Hennessey, 145 Conn. 211, 214, 140 A.2d 473 (1958); Cruz v. Drezek, 175 Conn. 230, 235-36, 397 A.2d 1335 (1978). The trial court was not convinced to that degree of certainty by the evidence presented by the plaintiff.

The trial court, by permitting the attorney to testify in the face of an objection that the witness had at some time acted as an attorney for the plaintiff, was required to make a factual determination as to whether the witness had ever acted as attorney for the plaintiff. It found that, whatever relationship may have existed between the witness and the plaintiff, the relationship was not that of attorney and client.

The court also denied the plaintiff’s motion to open and to set aside its prior ruling. In that motion, the trial court was asked to review a factual determination previously made. In support of his motion, the plaintiff filed affidavits setting forth factual claims contrary to the factual finding made by the trial court.

Through his claims on appeal, the plaintiff challenges the trial court’s factual determinations. “We review factual findings of the trial court under a clearly erroneous standard. Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980). We examine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous.” (Internal quotation marks omitted.) Solomon v. Hall-Brooke Foundation, Inc., 30 Conn. App. 129, 132, 619 A.2d 863 (1993). The duty of providing us with a record adequate to review claims, including those of a factual nature, rests squarely on the appellant. Practice Book § 4061; State v. Hoeplinger, 27 Conn. App. 643, 647, 609 A.2d 1015, cert. denied, 223 Conn. 912, 612 A.2d 59 (1992). We afford review only to claims based on the complete factual record developed by the trial court. We do not guess or speculate as to the existence of a factual predicate. State v. Hoeplinger, supra.

The plaintiff did not fulfill his duty to provide us with an adequate record to review. The trial court rendered an oral decision upon completion of the arguments by counsel on the last day of the trial. It did not file a written memorandum of decision, did not cause its oral decision to be transcribed and sign it, nor did it set out in its decision its basis other than to state that the issues were factual in nature and that it found that the plaintiff failed to establish the existence of a joint venture. There was thus a total failure to comply with Practice Book § 4059.

The plaintiff filed a motion for articulation pursuant to Practice Book § 4051, asking the trial court to set forth the basis and reasoning for its determination that he had failed to sustain his burden of proof in attempting to establish the claimed joint venture and the basis on which it had denied his motion to open and set aside the ruling. The trial court responded to the first inquiry by stating that it did not find the plaintiff’s testimony credible as to the existence of a joint venture and it then denied the request to articulate further the basis on which it denied the motion to open and set aside. The trial court thus responded to the request for articulation by stating simply that it did not believe the plaintiff’s testimony. This conclusion is meaningless as to the factual issues that needed to be resolved to enable us to make a determination as to the sufficiency of the evidence supporting the plaintiff’s claim. See Ford v. Hotel & Restaurant Employees & Bartenders Union, 152 Conn. 533, 534-35, 209 A.2d 187 (1965). A comparison of the trial court’s original decision and its articulation reveals that the articulation was simply a restatement of the original decision.

Faced with an articulation that did not clarify facts but merely restated the trial court’s conclusion, the plaintiff did nothing to perfect the record. He could have filed a motion for further articulation pursuant to Practice Book § 4051, or he could have sought review by this court of the adequacy of the trial court’s response pursuant to Practice Book § 4054. See Montanaro Bros. Builders, Inc. v. Snow, 4 Conn. App. 46, 51, 492 A.2d 223 (1985). He elected to do neither. The plaintiff also had a clear avenue open to him to provide an adequate record by filing a motion to compel compliance with Practice Book § 4059. The trial court did not file a written memorandum of decision, nor did it order a transcript of the decision, sign it and file it in the trial court within ten days of the appeal. Practice Book § 4059. Upon proper application, this court has the power, pursuant to Practice Book § 4183, to compel the trial court to comply with the mandate of this provision. State v. Rios, 30 Conn. App. 712, 718-19, 622 A.2d 618 (1993), (O’Connell, J., concurring).

“ ‘ “[Ujnder normal circumstances we will not remand a case to correct a deficiency the appellant should have remedied.” ’ J. M. Lynne Co. v. Geraghty, 204 Conn. 361, 376-77, 528 A.2d 786 (1987) (Citation omitted.) Augeri v. Planning & Zoning Commission, 24 Conn. App. 172, 178, 586 A.2d 635, cert. denied, 218 Conn. 904, 588 A.2d 1383 (1991). The plaintiff failed to follow the relatively simple rules established to guarantee the presentation to this court of a record appropriate for review. “As an appellate tribunal, either we adhere to the letter of the rules or create judicial anarchy, whereby, on an ad hoc basis, we decide cases, the outcome of which will turn on the mindset of the panel hearing the appeal.” State v. Deptula, 31 Conn. App. 140, 152, 623 A.2d 525 (1993) (Heiman, J., dissenting). Accordingly, we decline to afford review of the plaintiffs claim that the trial court improperly concluded that no joint venture existed.

The same result is mandated with respect to the claim that the trial court improperly denied the plaintiffs motion to open and reconsider its prior ruling regarding the testimony of the attorney. The trial court denied the motion for articulation of the factual basis of the denial of the motion. The plaintiff again failed to employ either Practice Book §§ 4051 or 4054. We decline to afford review to issues the factual predicates of which are lacking because of the failure of the plaintiff to follow our rules. J. M. Lynne Co. v. Geraghty, supra.

We are also faced with the same deficiency in the record concerning the claim of the trial court’s impropriety in permitting testimony by an attorney that the plaintiff claims violated the attorney-client privilege. We have already noted that the trial court found that whatever relationship may have existed between the attorney and the plaintiff, it was not that of attorney and client. We are not provided with a factual basis for that conclusion. The plaintiff sought no articulation from the trial court in order to provide us with a record adequate to afford a proper review of this fact bound issue. We decline to afford review of a claim where the record is inadequate and the plaintiff failed to take the proper steps to create an adequate record. Id.; Manchester v. Zoning Board of Appeals, 18 Conn. App. 69, 70 n.1, 556 A.2d 1026, cert. denied, 212 Conn. 804, 561 A.2d 946 (1989).

Because the plaintiff has failed in his duty under our rules of practice to provide us with an adequate record for review, his claims must fail. Oakes v. New England Dairies, Inc., 219 Conn. 1, 16, 591 A.2d 1261 (1991); Centerbank v. Gross, 31 Conn. App. 38, 40, 622 A.2d 1066 (1993); see also Practice Book § 4061.

The judgment is affirmed.

In this opinion O’Connell, J., concurred.

Lavery, J., dissenting.

We should in our jurisprudence, as much as possible, elevate substance over form. In this case, we have an opportunity, with two important substantive questions to be answered, to choose between two rules, one that allows us to remand the case for articulation and one that, under case law interpretation, would have us not review and affirm for lack of record. I would choose to remand for articulation so that we may decide the important substantive questions. Therefore, I respectfully dissent.

The following facts set forth in the pleadings are undisputed. The plaintiff, Peter Holmes, is the son of the defendant, Anne Holmes, the widow of the late Ralph Holmes. On August 25, 1958, Ralph Holmes formed a corporation named Holmes Estates, Inc. At the same time, Ralph Holmes acquired three apartment buildings in Norwalk and Stamford. Holmes Estates, Inc., was dissolved by the state in March, 1985, by forfeiture. After Holmes Estates, Inc., was dissolved, the plaintiff and his father agreed to rehabilitate the three apartment buildings and convert them into condominiums. The nature of the oral agreement between father and son regarding the conversion of the apartment buildings was the central issue at trial.

Ralph Holmes died on July 18,1989. The defendant was named executrix of Ralph Holmes’ estate. After his father died, the defendant claimed that the plaintiff had no interest in the condominium properties. The plaintiff brought an action in equity to establish his interest in the properties. At trial, the plaintiff sought to establish that he and his father had entered into an oral agreement establishing a joint venture when they converted the properties. He claimed that he is entitled to a one-half interest in the properties. The defendant denied the existence of the joint venture, and argued that, as owner of the ten shares of the now dissolved corporation, she is the owner of the properties in question.

The following procedural history is revealed by a review of the record and trial transcript. Near the conclusion of a two day trial, the defendant called as a witness attorney Ernest L. Josem. Josem testified that he had been an attorney practicing in Norwalk since 1936. He said he practiced law in partnership with his brother Milton, who died in 1990. The partnership ended two or three years before Milton died, but the brothers continued to share office space and the partnership name of Josem and Josem. Josem testified that Josem and Josem had represented Ralph Holmes and Holmes Estates, Inc., until two to three years before Milton’s death, and after that Milton Josem represented the business. After Ralph Holmes died, and before Milton Josem died, the plaintiff dealt with Milton. Josem added that after Milton Josem died, the plaintiff continued coming to the law office. Josem testified that when the plaintiff visited the office, he and the plaintiff would talk “casually,” and noted that he wrote at least one letter, and possibly more, on the plaintiff’s behalf. The plaintiff’s counsel objected to Josem’s answer, claiming that it implicated privileged attorney-client matters. The plaintiff’s counsel also noted that in deposition testimony on September 12,1991, Josem had “admitted” that the plaintiff was a client. The plaintiff’s counsel then requested the opportunity to voir dire Josem regarding the issue of attorney-client privilege; the trial court denied the request.

Counsel for the defendant continued his direct examination of Josem. Josem testified that the plaintiff had asked him to write a letter on his behalf, “making certain claims that he thought he was entitled to in reference to the condominiums owned by Holmes Estates.” Counsel for the defendant asked, “And what were those claims?” The plaintiff’s counsel objected again, was overruled, and took exception. Josem read the letter he had written to refresh his memory. He testified that Peter was not making any claims against the defendant, and that, at the time of the letter, Peter did not have any claims.

Counsel for the defendant asked Josem if the plaintiff had ever represented to him that the plaintiff was a joint venturer with his father. The plaintiffs counsel again objected on the ground of attorney-client privilege. The trial court overruled the objection, and granted the plaintiff an exception and a blanket objection to all of Josem’s testimony on the ground of the attorney-client privilege. Josem then answered that the plaintiff had never represented to him that the plaintiff was a joint venturer with his father, Ralph Holmes.

During the plaintiffs cross-examination of Josem, the plaintiff’s counsel moved to strike all of Josem’s testimony as violative of the attorney-client privilege. The motion was denied.

Later in the day, the plaintiff called his wife, Patti, to the witness stand. Patti testified that she and the plaintiff had gone to Josem’s office to consult with him as a lawyer about the problems they were having with the defendant and the business. She further testified that Josem provided her and the plaintiff with legal advice.

At the close of evidence, the trial court ruled from the bench that the plaintiff had failed to establish a joint venture, and found for the defendant on the issues that had been reserved for him to find. A memorandum of decision was never issued. On January 10, 1992, the plaintiff moved to open and set aside the judgment. The motion was based on the plaintiff’s claim that Josem’s testimony violated the attorney-client privilege. The motion was denied.

On June 23,1992, the plaintiff filed a motion for articulation, requesting that the trial court state the basis and reasons for its December 31, 1991 judgment and for its denial of the plaintiffs January 10,1992 motion to open and set aside the judgment. In its July 24 articulation, the trial court stated that it had concluded that the plaintiff failed to establish by a fair preponderance of the evidence that there was in fact a joint venture between the plaintiff and his father because “the court found the plaintiffs testimony was not credible and did not believe his testimony concerning the alleged joint venture.” The trial court also denied the plaintiffs motion for articulation as to the plaintiffs January 10, 1992 motion to open and set aside the ruling.

The plaintiff claims that the trial court improperly ruled that a joint venture between the plaintiff and Ralph Holmes was never formed, and that the trial court improperly allowed Josem to testify on behalf of the defendants. I agree with the majority that the record as it stands is inadequate to afford review of these claims. I would, however, rather than affirm the judgment of the trial court due to the inadequate record, remand the case to the trial court for further articulation.

As we have recently reiterated, “[i]t is incumbent upon the appellant to take the necessary steps to sustain its burden of providing an adequate record for appellate review. Practice Book § 4061; Walton v. New Hartford, 223 Conn. 155, 165-66, 612 A.2d 1153 (1992). Indeed, several rules of practice aim to facilitate the process by which an appealing party ensures the adequacy of record. See Practice Book § 4051 (Rectification of Appeal, Articulation), § 4053 (Motion for Review — In General), § 4054 (Motion for Review-Review of Motion for Rectification of Appeal or Articulation). These rules foster the basic policy that an appellate tribunal cannot render a decision without first fully understanding the disposition being appealed. State v. Hoeplinger, 27 Conn. App. 643, 647, 609 A.2d 1015, cert. denied, 223 Conn. 912, 612 A.2d 59 (1992). It is not the function of this court to find facts. State v. Reagan, 209 Conn. 1, 8, 546 A.2d 839 (1988).” State v. Rios, 30 Conn. App. 712, 715-16, 622 A.2d 618 (1993).

Our decision in State v. Rios, supra, focused on Practice Book § 4059, which requires that in all trials to the court, the trial court shall render an oral or written decision addressing the legal and factual bases for its decision. The section provides that if the decision is oral, it shall be recorded by a court reporter, and, if there is an appeal, the trial judge shall order the transcript transcribed and shall sign the transcript and file it with the trial court. The purpose of this section is to ensure that an appellate tribunal is succinctly appraised of the trial court’s rationale. See id., 716-20, O’Connell, J., concurring.

Section 4059 is directed to the trial court. We noted in State v. Rios, supra, 715, however, that “in most instances, notwithstanding the provisions of Practice Book § 4012 that provide for notice of appeal, the trial court is usually not aware of the appeal until well after the ten day period [for filing the memorandum or transcript after the appeal has been taken] has passed.” Therefore, we concluded, the court’s compliance with § 4059 is related to the appellant’s responsibility to provide an adequate record for review. Id.

In this case, we have not been presented with an adequate record to review the trial court’s reasoning. The trial court did not issue a written memorandum of decision. Although the appellant has filed with this court a transcript of the trial court proceedings, a signed portion of the transcript setting out the trial court’s legal and factual bases for its decision is not part of the record. We are not bound to examine the transcript in detail to determine whether the trial court’s ruling was sufficiently supported by facts. Such an examination would be an encroachment on the responsibilities of the trial court.

In its articulation, the trial court stated that it found for the defendants because it did not believe the plaintiff’s testimony. The trial court also denied the plaintiff’s motion for an articulation of the trial court’s reasons for denying its motion to open the judgment. The trial court’s articulation does not fulfil the requirement of Practice Book § 4059 that the trial court furnish a written or oral decision including the “factual basis of its decision.” As the majority notes, the articulation was a conclusion that “is meaningless as to the factual issues that needed to be resolved to enable us to make a determination as to the sufficiency of the evidence supporting the plaintiff’s claim. See Ford v. Hotel & Restaurant Employees & Bartenders Union, 152 Conn. 533, 534-35, 209 A.2d 187 (1965). A comparison of the trial court’s original decision and its articulation reveals that the articulation was simply a restatement of the original decision.” Also, the trial court’s denial of the plaintiff’s motion to articulate its reason for denying the plaintiff’s motion to open does not shed any light on why the trial court chose to overrule the plaintiff’s objections regarding Josem’s testimony and the attorney-client privilege.

The plaintiff’s claim that Josem’s testimony violated the attorney-client privilege raises an extremely important issue. Rule 1.6 of the Connecticut Rules of Professional Conduct provides: “A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation . . . .’’The comment to this rule states that confidentiality is a fundamental principle as it encourages the client to communicate fully and candidly. “ ‘The basic principles of the attorney-client privilege are undisputed. Communications between client and attorney are privileged when made in confidence for the purpose of seeking legal advice. Doyle v. Reeves, 112 Conn. 521, 523, 152 A. 882 (1931); Tait & LaPlante, Handbook of Connecticut Evidence (1976) § 12.5.’ ” State v. Gordon, 197 Conn. 413, 423, 504 A.2d 1020 (1985). The attorney-client privilege seeks to protect “a relationship that is a mainstay of our system of justice.” Clute v. Davenport Co., 118 F.R.D. 312, 314 (D. Conn. 1988). Where there is an actual conflict of interest, prejudice is presumed because counsel has breached the duty of loyalty, perhaps the most basic of counsel’s duties. Phillips v. Warden, 220 Conn. 112, 136, 595 A.2d 1356 (1991).

Evidence was presented at trial suggesting that Josem served as the plaintiff’s lawyer. The plaintiff’s counsel read into the trial record Josem’s deposition testimony, which stated that the plaintiff came to Josem’s office “Very basically . . . as a client.” The plaintiff also submitted, along with his motion to open the judgment, a number of affidavits and documents purporting to show that the plaintiff was Josem’s client. These documents include a letter addressed to the defendants’ counsel, and signed by Josem, regarding the sale of certain condominiums and referring to “the agreement” between the plaintiff and his father. Absent the trial court’s reasons.for denying the plaintiff’s motion to open, however, we have no knowledge of the weight the trial court attached to the documents and evidence, or how the trial court applied the law to the facts at hand. In consideration of the importance of the privilege to the operation of our justice system, however, the record must be rectified to allow for proper appellate review.

“[We] will not overturn findings of fact made by a trial court reasonably supported by the evidence or based on inferences reasonably drawn from the evidence. See Doyle v. Kulesza, 197 Conn. 101, 105, 495 A.2d 1074 (1985); Solomon v. Aberman, [196 Conn. 359, 378, 493 A.2d 193 (1985)]. If, however, the factual or legal basis of a trial court’s decision is unclear, ambiguous, incomplete, or the court has failed to state any basis for its decision, this court has the power to remand the case for further articulation of the basis of the trial court’s decision pursuant to Practice Book § 4061. State v. Wilson, 199 Conn. 417, 434-35, 513 A.2d 620 (1986); State v. Lafferty, 191 Conn. 73, 463 A.2d 238 (1983); Kaplan v. Kaplan, 185 Conn. 42, 46, 440 A.2d 252 (1981); Scherr v. Seherr, 183 Conn. 366, 368-69, 439 A.2d 845 (1981); Powers v. Powers, 183 Conn. 124, 125, 438 A.2d 845 (1981).” Rostain v. Rostain, 213 Conn. 686, 694, 569 A.2d 1126 (1990); see also State v. Pollitt, 199 Conn. 399, 415-16, 508 A.2d 1 (1986); Grunschlag v. Ethel Walker School, 189 Conn. 316, 320-21, 455 A.2d 1332 (1983); Gould v. Sturman, 186 Conn. 13,16, 438 A.2d 1181 (1982); State v. Ostroski, 184 Conn. 455, 460-61, 440 A.2d 166 (1981); State v. Whitney, 37 Conn. Sup. 864, 867, 440 A.2d 987 (1981). This court and the Supreme Court have been unwilling sua sponte to order articulation if the appellant, unlike the appellant here, fails to move for articulation under Practice Book § 4051. See Southington v. State Board of Labor Relations, 210 Conn. 549, 563-64, 556 A.2d 166 (1989); Ram Roofing & Sheet Metal Co. v. A.B.C. Plumbing & Heating, Inc., 2 Conn. App. 54, 57, 475 A.2d 341 (1984). We have also declined to order further articulation when the appellant moved for articulation in the trial court, but did not “specifically request clarification of the issue in question.” Buchetto v. Haggquist, 17 Conn. App. 544, 548, 554 A.2d 763, cert. denied, 211 Conn. 808, 559 A.2d 1141 (1989). In the present case, the plaintiff properly moved for articulation.

This court may also order the trial court to take the steps necessary to complete, correct or perfect the record by exercising its general supervisory powers pursuant to Practice Book § 4183. “There can, of course, be no question but that the supervision of a case on appeal to this court is in the [Appellate] Court.” State v. Pollitt, supra, 415; State v. Gonzales, 186 Conn. 426, 436, 441 A.2d 852 (1982); State v. Ostroski, supra, 460; State v. McCarthy, 167 Conn. 472, 477, 356 A.2d 165 (1975).

Under the rationale adopted by the majority, this court has no choice in circumstances such as those presented by this case but to affirm for lack of record. Practice Book § 4061, and the cases applying that rule, however, offer when appropriate, an alternative. The majority warns that “ ‘either we adhere to the letter of the rules or create judicial anarchy, whereby, on an ad hoc basis, we decide cases, the outcome of which will turn on the mindset of the panel hearing the appeal.’ ” I do not believe that we are faced here with a choice between adherence to the rules or judicial anarchy, but rather with a choice between utilizing a rule to allow us to decide the substantive issues in this case, or applying a different rule, which based on case law interpretation, would result in our affirming for lack of record. “The circumstances are indeed diverse where an articulation may be necessary or useful for meaningful appellate review.” State v. Wilson, supra, 435. A case by case analysis, resulting from these diverse circumstances, is not necessarily akin to judicial anarchy.

Practice Book § 4059 is directed to the trial court. “It is the duty of the judge who tried the case to set forth the basis of his decision.” Powers v. Powers, supra 125; Johnson Electrical Co. v. State, 164 Conn. 346, 348, 321 A.2d 461 (1973). Had the trial court complied with § 4059 initially, we would not be issuing opinions about our rules of practice, but rather about the substantive issues raised by the plaintiff. The plaintiff during trial made every effort to preserve the issues for appeal. He moved to open and set aside the judgment, and he strenuously objected to the testimony of Josem. He moved for articulation, and the trial court responded with a statement regarding credibility. The plaintiff could have moved for a motion for review of the articulation, or requested this court to order compliance with § 4059. In failing to do so, he did not employ every procedural device at his disposal. The plaintiffs difficulties in creating a record, however, stemmed from the trial court’s failure to comply with § 4059. To affirm for lack of record when the faulty record stems from the trial court’s failure to comply with § 4059, despite a motion for articulation, would deprive the plaintiff of an appeal despite the significance of the issues involved and despite the strong, yet imperfect, efforts of counsel.

Accordingly, I would remand the case to the trial court for articulation addressing the two following questions. (1) What was the legal and factual basis for the trial court’s determination that there was no joint venture agreement between the plaintiff and his deceased father, Ralph Holmes? (2) What was the legal and factual basis for the trial court’s denial of the plaintiff’s motion to open the judgment dated January 10, 1992? In answering the second question, the trial court should state the factual basis for its conclusion that Josem’s testimony did not violate the attorney-client privilege as to the plaintiff.

I reiterate that I would remand based on the circumstances of this case. First, the plaintiff’s counsel diligently preserved the issues for appeal. Second, counsel made a good faith effort to obtain the factual basis of the trial court’s decision and ruling. That effort included the filing of a motion to open and set aside, and a motion for articulation. Third, the issue of attorney-client privilege is fundamental to our system of justice and must be addressed. As we noted above, although Practice Book § 4059 is directed to the trial court, the appellant must bear the ultimate burden of establishing a record for review. Where, however, as here, strict interpretation of § 4059 would result in our denying review despite the efforts of counsel to establish a record and despite the presence of a vital issue to our justice system, we would indeed “exalt form over substance.” State v. Rios, supra, 714.

I respectfully dissent.

       The defendants named in the complaint were Anne S. Holmes, individually and doing business as Holmes Estates and Holmes Estates, Inc. Subsequently, by motion to cite additional parties, Anne S. Holmes, as executrix of the estate of Ralph W. Holmes, was added as a party defendant. The appeal was defended by Anne S. Holmes, individually and in all her representative capacities. Thus, in this opinion we refer to the defendants collectively.

       Practice Book § 4061 provides in pertinent part: “It is the responsibility of the appellant to provide an adequate record for review.”

       Practice Book § 4059 provides in pertinent part: “Except in small claims actions and as provided in Sec. 4060, when rendering judgments in trials to the court and in criminal cases, in ruling upon motions to dismiss under Sec. 814 and motions to suppress under Sec. 820, the court shall, either orally or in writing, state its decision on the issues in the case and, if there are factual issues, the factual basis of its decision. The court shall include in its decision its conclusion as to each claim of law raised by the parties. If oral, the decision shall be recorded by a court reporter and, if there is an appeal, the trial judge shall order the decision transcribed and the transcript of the decision shall be signed by the trial judge and filed in the trial court within ten days of the filing of the appeal. . . .”

       The articulation filed by the trial court provides in pertinent part: “1. The basis and reasons for the court’s determining on December 31,1991, that ‘the plaintiff has failed to establish by a fair preponderance of the evidence that there was in fact a joint venture going on between the plaintiff and his late father.’ . . . [Tjhe Court found the plaintiff’s testimony was not credible and did not believe his testimony concerning the alleged joint venture. . . .”

       In its oral decision at the conclusion of all the evidence, the trial court stated in part: “I’ve had an opportunity to hear all the witnesses. I’ve paid attention to them. I’ve had an opportunity to evaluate them and to assess their credibility, their interest in the outcome of the case.”

       Under our rules of practice, we cannot condone what the dissent refers to as “strong, yet imperfect, efforts of counsel.” Our rules provide a vehicle for a party to create an adequate record for appeal. In the absence of the plaintiff’s compliance with our rules, our role is not to throw a life preserver based upon merciful hope. We are a court of appeals, not of refuge.

       The historical significance of Practice Book § 4059 has been set out in detail in the concurring opinion in State v. Rios, 30 Conn. App. 712, 622 A.2d 618 (1993) (O’Connell, J., concurring). It eliminated a time consuming and unsatisfactory system of draft findings and counter findings submitted by the parties to the trial court which was then obligated to make findings of fact. Id., 716-17. Further, it effectively guaranteed that with few exceptions, not here pertinent, the trial court is obligated to prepare an oral or written memorandum of decision; Practice Book § 4059; thereby creating a system for providing this court with the factual and legal basis for the trial court’s decision. Id., 718. Thus, if the trial court complies with the rule of practice or if counsel files appropriate motions to rectify the record, this court is supplied with the necessary tools to make an intelligent evaluation of the appellant’s claims. When the rules are not followed, we are left to surmise and speculate. “Without a written memorandum of decision or an oral recitation on the record of the court’s findings, we cannot determine if the court’s conclusions were reasonable.” Id., 719-20.

       Practice Book § 4183 provides in pertinent part: “The court may, on its own motion, modify or vacate any order made by the trial court, or a judge thereof, in relation to the prosecution of the appeal. It may also, for example, on its own motion or upon motion of any party, (1) order a judge to take any action necessary to complete the trial court record for the proper presentation of the appeal . . . .”

       The plaintiffs counsel read into the trial record a portion of Josem’s deposition testimony in which Josem said that after Milton Josem and Ralph Holmes died, the plaintiff came to his law offices “very basically ... as a client.”

       Practice Book § 4059 provides: “Except in small claims actions as provided in Sec. 4060, when rendering judgments in trials to the court and in criminal cases, in ruling upon motions to dismiss under Sec. 814 and motions to suppress under Sec. 820, the court shall, either orally or in writing, state its decision on the issues in the case, and, if there are factual issues, the factual basis of its decision. The court shall include in its decision its conclusion as to each claim of law raised by the parties. If oral, the decision shall be recorded by a court reporter and, if there is an appeal, the trial judge shall order the decision transcribed and the transcript of the decision shall be signed by the trial judge and filed in the trial court within ten days of the filing of the appeal. If written, the decision shall be stated in a memorandum of decision, which shall be filed with the clerk.”

       We note, however, that Practice Book § 4059 contemplates compliance by the trial court in all instances governed by the section, whether an appeal is pending or not. Such compliance, when appeals arise, expedites the appellate process.

       Practice Book § 4061' provides in part: “If the court deems it necessary to the proper disposition of the cause, it may remand the case for a further articulation of the basis of the trial court’s factual findings or decision.”

       Practice Book § 4183 provides in pertinent part: “The supervision and control of the proceedings on appeal shall be in the court having appellate jurisdiction from the time the appeal is filed, or earlier, if appropriate, and, except as otherwise provided in these rules, any motion the purpose of which is to complete, correct or otherwise perfect the trial court record for presentation on appeal shall be made to the court in which the appeal is pending. The court may, on its own motion, modify or vacate any order made by the trial court, or a judge thereof, in relation to the prosecution of the appeal. It may also, for example, on its own motion or upon motion of any party, (1) order a judge to take any action necessary to complete the trial court record for the proper presentation of the appeal . . . (10) remand any pending matter to the trial court for the resolution of factual issues where necessary. ...”


source: Caselaw Access Project

author: Schaller, J.

license: Public Domain

text:
    Robert L. Klopp v. Commissioner, Department of Income Maintenance
    (11868)
    Dupont, C. J., Landau and Schaller, Js.
    Argued June 9
    decision released August 3, 1993

      Robert L. Klopp, pro se, the appellant (plaintiff).

      Kenneth H. Kennedy, Jr., assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Richard J. Lynch, assistant attorney general, for the appellee (defendant).
   Schaller, J.

The plaintiff appeals from the judgment of the trial court dismissing his administrative appeal filed pursuant to General Statutes § 4-183. The dispositive issue in this appeal is whether the trial court improperly dismissed the administrative appeal on the basis of two alleged deficiencies in the petition for an administrative appeal: (1) the lack of a citation and (2) the failure to provide an adequate return date. We reverse the judgment of the trial court and remand the case for further proceedings.

The pertinent facts are as follows. In July, 1992, the New Haven department of welfare denied the plaintiffs claim for general assistance. The plaintiff requested a hearing from the department of income maintenance regarding the denial of those benefits. After a hearing, the commissioner, on August 25,1992, upheld the original denial of benefits. On September 4, 1992, the plaintiff filed an administrative appeal in the Superior Court pursuant to General Statutes § 4-183.

The appeal filed by the plaintiff mirrored Practice Book Form 204.9, which provides guidance in appealing a decision of the liquor control commission pursuant to § 4-183. No form in the Practice Book applied specifically to an appeal from the department of income maintenance. Section 4-183, however, governs appeals from both the liquor control commission and the department of income maintenance.

Form 204.9 refers to the “return date” in the opening paragraph and delineates a space in which the return date should appear. The plaintiff followed this format and entered “September 22,1992,” a Tuesday, in the space for the return date.

On September 22,1992, the defendant filed a motion to dismiss. According to the defendant, the failure of the plaintiffs appeal to include a citation and an adequate return date deprived the court of subject matter jurisdiction. The trial court granted the motion and this appeal ensued. After the parties filed their briefs, our Supreme Court rendered its decision in Tolly v. Department of Human Resources, 225 Conn. 13, 621 A.2d 719 (1993), which governs our determination of the dispositive issues in this appeal.

I

The plaintiff claims that the trial court improperly relied on the lack of a citation in dismissing his administrative appeal. We agree.

“In administrative appeals, the citation is the writ of summons that directs the sheriff or some other proper officer to seek out the defendant agency and to summon it to a particular sitting of a particular court on a specified day.” Tolly v. Department of Human Resources, supra, 18, quoting, 1 E. Stephenson, Connecticut Civil Procedure (2d Ed. 1970) § 18. In Tolly v. Department of Human Resources, supra, our Supreme Court held that § 4-183 (c) (1) does not require a citation. The court reasoned that because General Statutes § 4-183 (c) (1) specifically provides for service by certified or registered mail without the use of a sheriff or other officer, a citation requirement would be meaningless.

In the present case, General Statutes § 4-183 governs the plaintiffs administrative appeal, just as it governed the administrative appeal in Tolly. It follows therefore that, because § 4-183 (c) (1) does not require a citation, the trial court improperly dismissed the plaintiffs appeal on this basis.

II

The remaining issue is whether the return date appearing in the plaintiff’s petition was defective to the extent that it deprived the trial court of subject matter jurisdiction.

We refer again to the decision in Tolly v. Department of Human Resources, supra, 25-30. There, the plaintiff’s administrative appeal referred to a return day, but it did not contain specific language ordering the defendant to appear on or before the second day after the return day. Construing §§ 4-183 (c) and 4-183 (d), our Supreme Court held that if the appealing party timely makes service on the agency, an “arguable defect” in the process served will not deprive the court of subject matter jurisdiction, unless the court makes a finding of prejudice to the agency. Id., 28-29. The court noted that the attorney general had failed to claim any prejudice. Id., 29. The court further explained that “it would be difficult to perceive any [prejudice] because presumably the attorney general knew the significance of a return day stated on an administrative appeal.” Id.

In the present case, the form of the plaintiffs appeal mirrored a Practice Book form designed to effectuate an administrative appeal pursuant to § 4-183. On the form, there is a parenthetical directive that instructs the appealing party to insert a return date in the first sentence. The plaintiff followed this command and inserted September 22, a Tuesday. See General Statutes § 52-48 (process in civil action may be made returnable on any Tuesday in any month). The “arguable defect” is the lack of a reference to “Return Date” on the petition.

As in Tolly v. Department of Human Resources, supra, 29, the plaintiff timely served the appeal and the defendant has not offered any reason why the failure to refer to September 22,1992, as the return date prejudiced its case. In fact, the attorney general filed the motion to dismiss on the date specified in the petition, September 22,1992. Further, it is difficult to perceive any prejudice to the office of the attorney general since we presume that that office is familiar with Practice Book forms prescribed for purposes of administrative appeals pursuant to § 4-183. We conclude that, in the absence of any prejudice, the claimed defect does not deprive the court of subject matter jurisdiction.

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

In this opinion the other judges concurred.

       General Statutes § 4-183 provides in pertinent part: “(c) Within forty-five days after mailing of the final decision under section 4-180 or, if there is no mailing, within forty-five days after personal delivery of the final decision under said section, a person appealing as provided in this section shall serve a copy of the appeal on the agency that rendered the final decision at its office or at the office of the attorney general in Hartford . . . .Service of the appeal shall be made by (1) United States mail, certified or registered, postage prepaid, return receipt requested, without the use of a sheriff or other officer, or (2) personal service by a proper officer or indifferent person making service in the same manner as complaints are served in ordinary civil actions.
      “(d) The person appealing, not later than fifteen days after filing the appeal, shall file or cause to be filed with the clerk of the court an affidavit, or the sheriffs return, stating the date and manner in which a copy of the appeal was served on each party and on the agency that rendered the final decision, and, if service was not made on a party, the reason for failure to make service. If the failure to make service causes prejudice to any party to the appeal or to the agency, the court, after hearing, may dismiss the appeal. . . .”

       The initial paragraph of Form 204.9 reads:
      “Appeal from Liquor Control Commission
      “To the superior court in and for the judicial district of at on (return date) comes (name and residence of appellant) appealing from a decision of the Liquor Control Commission and petitioning this court to make judicial review thereof and complains and says . . . .”
      The plaintiffs opening paragraph stated:
      “APPEAL FROM THE DECISION OF COMMISSIONER OF INCOME MAINTENANCE
      “To the Superior Court in and for the judicial district of New Haven on September 22. 1992. comes Robert L. Klopp, P.O. Box 599, New Haven, CT 06503-0599, appealing from a decision of the Commissioner of Income Maintenance and petitions this court to make a judicial review thereof, and complains and says . . . .”


author: Heiman, J. Schaller, J., dissenting.

text:
    Polymer Resources, Ltd., et al. v. Timothy R. E. Keeney, Commissioner of Environmental Protection
    (11668)
    Dupont, C. J., Heiman and Schaller, Js.
    Argued May 10
    decision released August 3, 1993

      Charles L. Howard, with whom, on the brief, were William O. Riiska and Gregory T. D'Auria, for the appellants (Farmington Residents for a Clean Environment).

      Christopher J. Smith, with whom, on the brief, were Stuart A. Epstein and Stewart I. Edelstein, for the appellees (plaintiff).

      Kimberly P. Massicotte, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Joseph Rubin, Robert B. Teitel-man and Grace M. Dodier, assistant attorneys general, for the appellees (defendants).
   Heiman, J.

Farmington Residents for a Clean Environment (FRCE) appeals from the trial court’s denial of its motion to be granted status as a party in this action brought by the named plaintiff Polymer Resources, Ltd. (Polymer), against the commissioner of environmental protection. In its complaint, Polymer sought injunctive relief arising out of a claim that the defendant was attempting to impose conditions on the operation of Polymer’s manufacturing plant in excess of those imposed in a decision and order rendered by the defendant, and, further, that the defendant, acting under color of state law, violated Polymer’s rights, privileges and immunities as secured by the constitution and laws of the state of Connecticut.

On appeal, FRCE posits that the trial court acted improperly (1) in denying its motion to intervene pursuant to General Statutes § 22a-19 (a), (2) in denying its motion to intervene as of right, and (3) in denying its motion to intervene under permissive standards. We affirm the trial court’s denial of FRCE’s motion for party status.

The following facts are necessary to a resolution of this appeal. Polymer operates a manufacturing facility in the town of Farmington at which it produces plastic pellets. This facility has been the subject of numerous complaints based on claims of air pollution by emission of allegedly noxious odors.

On February 3,1992, the defendant issued administrative compliance order No. 1222 requiring Polymer to cease emissions from its facility. The defendant claimed that the emissions caused or contributed to the offensive odor. The commissioner ordered Polymer to prepare a report and to perform remedial actions to abate the odors.

On February 13, 1992, Polymer’s representatives met with the commissioner’s representative and agreed on a remedial plan in accordance with the administrative compliance order. The plan provided that Polymer would install additional air pollution control equipment, conduct stack testing, and submit reports to the commissioner. Polymer ordered and installed additional air pollution control equipment. To install the equipment, Polymer ceased operations at its facility on April 9, 1992.

On that same day, the commissioner issued administrative compliance order No. 1270 compelling Polymer to cease operations at its facility, to install the agreed on air pollution control equipment, to submit a plan for stack testing, and to submit a report to the commissioner certifying that the air emissions from the facility would not result in imminent and substantial damage to the public health. The order provided that Polymer shall not be in full compliance with the order until all actions required by the order are completed and Polymer otherwise completely and permanently ceases the emissions of all substances that are likely to result in imminent and substantial damage to public health. Order No. 1270 also provided that the commissioner may approve of the document, report, or other action as submitted or performed with such conditions or modifications as the commissioner deems necessary to carry out the purposes of the order.

On April 16,1992, an administrative hearing officer commenced a hearing pertaining to order No. 1270. Both the town of Farmington and FRCE were permitted to intervene in this administrative hearing. Polymer consented to abide by the terms and conditions of the commissioner’s administrative compliance order No. 1270 and these terms and conditions were incorporated into the administrative hearing officer’s May 1, 1992 decision.

On May 4,1992, Polymer submitted a proposed final stack testing plan to the commissioner. The commissioner did not act on the plan, but requested that an independent third party expert review Polymer’s plan. He recommended two experts, one of whom Polymer employed to review its plan.

On May 12, 1992, the third party expert modified Polymer’s proposed final stack testing plan and submitted it to the commissioner.

On May 14, 1992, the commissioner imposed additional conditions beyond the scope of the administrative hearing officer’s final decision and the commissioner’s compliance order No. 1270.

Pursuant to the modified stack testing plan, Polymer conducted tests and, on June 22, 1992, submitted a report to the commissioner certifying that air emissions from its facility would not result in imminent and substantial damage to the public health. On June 25,1992, the commissioner ordered Polymer to cease operations pertaining to the stack testing plan because of the detection of a mild odor in the emission stack outlet. On June 29,1992, the third party expert submitted its report to the commissioner analyzing the results of its plan for stack testing at Polymer’s facility.

On July 2, 1992, the commissioner attempted to impose additional requirements of precontrol stack testing as a condition to Polymer’s resumption of stack testing. He justified these conditions by asserting that compliance order No. 1270 contained a provision that Polymer conduct stack testing in a manner approved by him.

In a two count verified complaint, Polymer asserted that the commissioner’s actions were “arbitrary, capricious, unreasonable, in excess of his authority, and constitute[d] bad faith and an abuse of discretion” and that the commissioner, acting under the color of state law, had “deprived Polymer of its rights, privileges, and immunities secured by the Constitution and the laws of the State of Connecticut, including Polymer’s rights to due process and equal protection as afforded by the Constitution of the State of Connecticut.” Polymer sought by way of relief attorney’s fees and a temporary and permanent injunction enjoining the commissioner from prohibiting or limiting Polymer’s operation at its facility under (1) the commissioner’s order No. 1270, (2) the May 1, 1992 terms of the final decision of the administrative hearing officer, (3) the terms and conditions of the commissioner’s May 14, 1992 letter to Polymer, (4) terms and conditions of the commissioner’s June 25,1992 letter to Polymer, (5) and the terms and conditions of the commissioner’s July 2,1992 letter to Polymer. It also sought a temporary and permanent injunction restraining the commissioner from compelling Polymer to perform precontrol testing at its facility.

On August 17, 1992, FRCE made a motion for permission to intervene as a matter of statutory or common law right or permissively as a party to the case. It filed a verified pleading regarding intervention and a memorandum in support of its motion for permission to intervene. Polymer filed an objection to FRCE’s motion and a memorandum in support of its objection. The court orally denied FRCE’s motion. The court found that the attorney general could adequately protect FRCE’s interests. It also found that FRCE did not meet the standards for intervention pursuant to General Statutes § 22a-19 (a), intervention as of right, and permissive intervention. This appeal followed.

I

FRCE asserts that the trial court improperly denied its motion to intervene pursuant to General Statutes § 22a-19 (a). FRCE posits that the trial court incorrectly found that it had discretion under § 22a-19 (a) to deny FRCE’s motion to intervene. FRCE claims that it has an absolute right to intervene on the filing of a verified pleading and complying with the provisions of § 22a-19 (a). We do not agree that the trial court improperly denied FRCE’s motion to intervene under this statute.

General Statutes § 22a-19 provides: “(a) In any administrative, licensing or other proceeding, and in any judicial review thereof made available by law, the attorney general, any political subdivision of the state, any instrumentality or agency of the state or of a political subdivision thereof, any person, partnership, corporation, association, organization or other legal entity may intervene as a party on the filing of a verified pleading asserting that the proceeding or action for judicial review involves conduct which has, or which is reasonably likely to have, the effect of unreasonably polluting, impairing or destroying the public trust in the air, water or other natural resources of the state.” (Emphasis added.) Pursuant to this statute, a party may intervene in an administrative hearing or judicial review thereof upon filing a verified pleading. The pleading must assert that a proposed activity “ ‘involves conduct which has, or which is reasonably likely to have, the effect of unreasonably polluting, impairing or destroying the public trust in the air, water or other natural resources of the state.’ ” Burton v. Dillman, 27 Conn. App. 479, 480, 607 A.2d 447, cert. denied, 223 Conn. 904, 610 A.2d 178 (1992); Red Hill Coalition, Inc. v. Conservation Commission, 212 Conn. 710, 715, 563 A.2d 1339 (1989). Intervention in an administrative proceeding or judicial review of that proceeding is for the limited purpose of raising environmental issues. Red Hill Coalition, Inc. v. Conservation Commission, supra; Mystic Marinelife Aquarium, Inc. v. Gill, 175 Conn. 483, 490, 400 A.2d 726 (1978); Burton v. Dillman, supra, 482; Glendenning v. Conservation Commission, 12 Conn. App. 47, 53-54, 529 A.2d 727, cert. dismissed, 205 Conn. 802, 531 A.2d 936 (1987).

Polymer brought an action alleging that the defendant violated its due process and equal protection rights guaranteed by the state constitution and law and that the defendant’s actions were arbitrary, capricious, and unreasonable. This is thus a civil rights action by Polymer against the commissioner. This is not an appeal from an administrative hearing or a judicial review of such a hearing. See General Statutes § 22a-19. Section 22a-19 (a) does not provide FRCE with the right to intervene in Polymer’s civil rights action. See footnote 10, supra.

The trial court’s ruling denying FRCE’s motion to intervene is correct, albeit for the wrong reason. Del-fino v. Planning & Zoning Commission, 30 Conn. App. 454, 463, 620 A.2d 836 (1993). The trial court stated that under § 22a-19 (a) it has discretion when to permit a party to intervene. As we have noted, § 22a-19 (a) compels a trial court to permit intervention in an administrative proceeding or judicial review of such a proceeding by a party seeking to raise environmental issues upon the filing of a verified complaint. The statute is therefore not discretionary. The statute, however, does not provide for intervention in the type of action brought by Polymer. We are not compelled to reverse the trial court’s ruling that reached the correct result for the wrong reason. Id.; Solomon v. Hall-Brooke Foundation, Inc., 30 Conn. App. 136, 146, 619 A.2d 866 (1993).

FRCE’s claim that the trial court improperly denied its motion to intervene pursuant to General Statutes § 22a-19 (a) is without merit.

II

FRCE also asserts that the trial court should have allowed it to intervene as of right under general principles of intervention, including Practice Book §§99 and 100 and General Statutes §§ 52-102 and 52-107. Although we agree with the applicant that Practice Book § 99 provides for intervention as of right, we do not agree that the applicant is entitled to such intervention.

Practice Book § 99 provides for intervention as of right in Connecticut practice. Horton v. Meskill, 187 Conn. 187, 191, 445 A.2d 579 (1982); State Board of Education v. Waterbury, 21 Conn. App. 67, 70, 571 A.2d 145 (1990). “An applicant for intervention has a right to intervene under Practice Book § 99 where the applicant’s interest is of such a direct and immediate character that the applicant will either gain or lose by the direct legal operation and effect of the judgment. ...” (Citations omitted; internal quotation marks omitted.) State Board of Education v. Waterbury, supra, 71; Horton v. Meskill, supra, 195; Common Condominium Assns., Inc. v. Common Associates, 5 Conn. App. 288, 290, 497 A.2d 780 (1985). “[A] person or entity does not have a sufficient interest to qualify for the right to intervene merely because an impending judgment will have some effect on him, her, or it. The judgment to be rendered must affect the proposed intervenor’s direct or personal rights, not those of another.” In re Baby Girl B., 224 Conn. 263, 275, 618 A.2d 1 (1992).

The trial court found that the attorney general could adequately represent the interests of FRCE and the general public in this matter. Although the resolution of Polymer’s civil rights claim might theoretically have an effect on FRCE, FRCE’s interest in the impending judgment was not sufficiently direct or personal to require intervention since the judgment would affect the public at large. FRCE’s claim that it was entitled to intervention as of right is without merit.

III

FRCE further asserts that the trial court improperly-denied its motion to intervene under permissive standards. We are unpersuaded that the trial court abused its discretion in denying FRCE’s request for permissive intervention.

Because questions of permissive intervention are committed to the sound discretion of the trial court, FRCE bears the heavy burden of demonstrating an abuse of that discretion in order to prevail. In re Baby Girl B., supra, 277; Horton v. Meskill, supra, 197.

“Our cases establish that, in determining whether to grant a request for permissive intervention, a court should consider several factors: the timeliness of the intervention, the proposed intervenor’s interest in the controversy, the adequacy of representation of such interests by other parties, the delay in the proceedings or other prejudice to the existing parties the intervention may cause, and the necessity for or value of the intervention in resolving the controversy. ... A ruling on a motion for permissive intervention would be erroneous only in the rare case where such factors weigh so heavily against the ruling that it would amount to an abuse of the trial court’s discretion.” (Citations omitted; internal quotation marks omitted.) In re Baby Girl B., supra, 277-78; Milford v. Local 1566, 200 Conn. 91, 94, 510 A.2d 177 (1986); Horton v. Meskill, supra.

Applying the factors set forth above, we conclude that the trial court did not abuse its discretion in denying FRCE’s request to intervene. The trial court found that the attorney general adequately represented FRCE’s interest and that undue delay would result if FRCE were permitted to intervene. On the basis of these findings, the trial court could properly deny FRCE’s request for permissive intervention.

The judgment is affirmed.

In this opinion Dupont, C. J., concurred.

Schaller, J., dissenting.

This appeal involves the right of a group of some 300 citizens to intervene and participate in a lawsuit that will decide whether the quality of air in their own neighborhood will be adversely affected by the emissions from a manufacturing plant operating in the immediate vicinity. Because I believe the right of these citizens to intervene in the action is supported by existing statutory and decisional law, I respectfully dissent.

I do not disagree with the majority’s statement of essential facts or its recitation of the law that applies to this case. In my view, however, the application of the law to those facts compels the conclusion that FRCE is entitled to intervene under both General Statutes § 22a-19 (a) and General Statutes §§ 52-102 and 52-107.

I

Intervention Under General Statutes § 22a-19 (a)

At the outset, I would note that FRCE has presented a convincing case for an absolute right of intervention under General Statutes § 22a-19 (a). I believe that a fair reading of § 22a-19, against the background of strong legislative policy in favor of the right of citizens to intervene in environmental actions, indicates that FREE had an absolute right to intervene in this case. That legislative policy bears repeating: The purpose of the Environmental Protection Act “is to give private citizens a voice in ensuring that the air, water and other natural resources of the state remain protected, preserved and enhanced, and to provide them with ‘an adequate remedy to protect the air, water and other natural resources from unreasonable pollution, impairment or destruction.’ General Statutes § 22a-15. It, therefore, allows a member of the general public to intervene in an existing judicial review of an agency action or to initiate an independent declaratory or injunctive action. General Statutes § 22a-19.” Connecticut Water Co. v. Beausoleil, 204 Conn. 38, 44-45, 526 A.2d 1329 (1987).

Our courts have recognized the importance of construing a statute in accordance with the legislative policy the statute was designed to implement. Cheshire Mortgage Service, Inc. v. Montes, 223 Conn. 80, 96, 612 A.2d 1130 (1992); Chrysler Corporation v. Maiocco, 209 Conn. 579, 592, 552 A.2d 1207 (1989). This principle of construction is particularly applicable in the context of environmental legislation. Environmental statutes are remedial in nature and should be liberally construed to accomplish their purpose. Manchester Environmental Coalition v. Stockton, 184 Conn. 51, 57, 441 A.2d 68 (1981).

I believe that the principle requiring that statutes be interpreted to effect the policy that the legislation seeks to achieve deserves allegiance from this court. Viewed from this perspective, the term “other proceeding” as well as the reference in § 22a-19 to judicial review should be liberally interpreted to further the legislative policy behind the Environmental Protection Act.

While the plaintiffs elected to bypass review of the administrative decision by means of a timely appeal, instead electing to bring an independent “civil rights action,” the effect of the relief sought is, at the heart of the matter, the equivalent of the judicial review that would have taken place in the course of the administrative appeal. In their “civil rights action,” the plaintiffs seek injunctive relief that would restrain the commissioner of environmental protection from enforcing restrictions on the operation of the plaintiffs facility. An administrative appeal seeking a judgment vacating the decision of the administrative hearing officer undoubtedly would have sought the same objective. In short, there is no reason why FRCE should be deprived of its absolute statutory right to intervene merely because the plaintiffs chose an indirect route to judicial review of the agency order rather than the direct route.

As the majority recognizes, not only had FRCE participated fully in both administrative proceedings leading to the present action but, in addition, FRCE had the unqualified support of the appellee commissioner of environmental protection in its effort to intervene in the present action.

II

Intervention Under General Statutes §§ 52-102 AND 52-107

While the foregoing analysis alone should vindicate FRCE’s absolute right to intervene, the case for intervention as of right based on General Statutes §§ 52-102 and 52-107 is stronger. The conditions necessary to qualify for intervention as of right were set forth in State Board of Education v. Waterbury, 21 Conn. App. 67, 72, 571 A.2d 148 (1990). Intervention as of right requires that (1) the application be timely, (2) the applicant claim an interest relating to the transaction that is the subject of the action, (3) the applicant show that its ability to protect that interest may as a practical matter be impaired or impeded by disposition of the action, (4) the applicant’s interest is not adequately represented by the existing parties. “Failure to meet any one of the conditions is sufficient to deny intervention as of right.” State Board of Education v. Waterbury, supra, citing NAACP v. New York, 413 U.S. 345, 369, 93 S. Ct. 2591, 37 L. Ed. 2d 648 (1973).

In the present case, the trial court determined that FRCE established the first three conditions. The court found that the only issue with respect to intervention as of right was the fourth condition. In this regard, the court concluded that the commissioner could adequately represent FRCE’s interests. In my view, the trial court’s determination squarely conflicts with this court’s decision in State Board of Education v. Waterbury, supra, and finds no support in the record.

In State Board of Education v. Waterbury, supra, the state board of education brought suit against Waterbury seeking an order to compel Waterbury to implement an approved desegregation plan for the Maloney school. The Maloney school parent teachers organization moved to intervene as plaintiffs. The trial court, however, denied the motion because there was no reason to believe that the attorney general would not represent all citizens of the state in reaching a conclusion consistent with the United States and state constitutions. In rejecting the trial court’s reasoning, we held that “[t]he court’s expressed concern for the entire citizenry of Connecticut misses the significance of the appellants’ special interest in this case. That interest may, at times, compete with the interests of the state board of education, the commissioner of education and ‘all the other citizens’ of Connecticut. . . . [The parents] have ‘more parochial interests’. . . .’’(Emphasis added.) Id., 73-74.

A similar analysis applies to the present case. Here, FRCE has asserted a parochial and specialized interest; its membership is directly affected by the alleged emission of various substances and odors. FRCE thus has a distinct parochial interest — in contrast to the commissioner’s broader interest in representing all the citizens of Connecticut. The significant difference between these interests raises the specter of conflict to the extent that the commissioner may not be an adequate representative of FRCE’s interests. Trbovich v. United Mine Workers, 404 U.S. 528, 538 n.10, 92 S. Ct. 630, 30 L. Ed. 2d 686 (1972) (to satisfy rule that existing party cannot adequately represent the applicant, the applicant must show “that representation of his interest may be inadequate; and the burden of making that showing should be treated as minimal” [emphasis added]).

Apart from the fact that the trial court’s decision conflicts with the decision in State Board of Education v. Waterbury, supra, it is clear that the trial court failed to consider the overarching fact that the commissioner fully supported FRCE’s intervention. The commissioner — the very party responsible for enforcing the Environmental Protection Act and providing the representation-urged the court to consider the need for the additional representation. Counsel for the commissioner argued that “concerned as we may be about the health of the citizens, we don’t live there. And [we] don’t think anybody else can substitute an interest for the people who are in fact suffering the effects that this case is about. And for that reason, [we] think it’s entirely appropriate that [FRCE] be permitted to intervene.” The commissioner’s position, of itself, offers a compelling reason to grant FRCE’s motion for intervention.

Next, the trial court failed to give any consideration to the active role played by FRCE in the administrative proceedings that gave rise to this action. After the first administrative hearing, the commissioner found that the plaintiff’s facility created a nuisance and unreasonably interfered with the community’s enjoyment of life. Following this order, the plaintiff entered into a consent order with the commissioner. FRCE objected to the order. By doing so, FRCE revealed that its interests do not necessarily coincide with those of the commissioner.

In the second administrative proceeding, the commissioner issued an order finding that the plaintiffs’ emissions caused or were likely to cause damage to the public health. The commissioner further issued restrictions on the operation of the facility. Again, FRCE indicated its genuine interest in the litigation when it requested the commissioner to include additional requirements to the final order. Through these efforts, FRCE displayed an independent and serious interest in the operation of the Polymer facility. In denying FRCE’s motion for intervention, the trial court gave no consideration to FRCE’s vigilance in the course of the administrative proceedings.

Finally, the trial court completely overlooked the powerfully expressed legislative intent of the Environmental Protection Act asserting the right of citizen participation in matters that directly affect their own environment. Here, FRCE has a direct personal interest of an immediate nature in the outcome of the controversy. That interest was fully recognized in the administrative proceedings and should be acknowledged by this court. Principles of fairness and environmental concern demand that result.

I believe that the trial court acted improperly in denying FRCE the right of intervention in this case. I would reverse the trial court order denying intervention and remand the case for further proceedings.

For the foregoing reasons, I respectfully dissent.

       FRCE is a group of approximately 300 people who share a Farming-ton neighborhood with the named plaintiff Polymer Resources, Ltd.

       The other plaintiff in this action is Leslie M. Klein who is chairman of Polymer’s board of directors, its sole shareholder, and owner of the land where the facility is located. For purposes of this appeal, Polymer Resources, Ltd., and Klein will be referred to collectively as Polymer.

       While the dissent asserts that an administrative appeal would have “sought the same objective,” we point out that this is not the method selected by the plaintiff. In Connecticut, we have long held to the theory that a party is entitled to plead its case as it wishes. “[T]he party [should be] permitted to put his case before the court in his own way, rather than in that which his antagonist might prefer.” Burritt v. Lunny, 90 Conn. 491, 495, 97 A. 756 (1916).

       Polymer filed an administrative appeal of the order and requested a hearing. The hearing was held on June 3,1992. At that hearing, the town of Farmington and FRCE were permitted to intervene as parties. At the hearing Polymer and the commissioner agreed to a consent order whereby Polymer agreed to cease emitting the substances that create or contribute to the odor.

       Precontrol stack testing is the testing of emissions from manufacturing operations before the emissions have gone through pollution control devices.

       We note that FRCE had participated in the administrative hearings before the administrative hearing officer concerning the commissioner’s compliance orders Nos. 1222 and 1270. We also note that the town of Farmington also filed a motion for permission to intervene in Polymer’s action. The town, however, did not appeal the trial court’s denial of its motion.

       In making its ruling denying the town of Farmington’s and FRCE’s motions, the trial court made the following findings:
      “[The Court]: [The Department of Environmental Protection (DEP)], which by statute is charged with the protection, the health, the safety, and the welfare of the state of Connecticut [General Statutes §§ 22a-la], And in all matters, the Commissioner shall act as the agent for the state and any municipality. [General Statutes §] 22a-9.
      “So you have specific charges here. And as far as the [claim for intervention under §] 22a-19, that’s discretionary. And in all actions brought by the DEP, representation shall be by the Attorney General.
      “Now, I would have to find that your client’s interest could not be adequately represented by the Attorney General’s Office in this case. I cannot find that, and there’s no evidence that he could not adequately represent all the applicants’ interests].
      “As to this issue which is — has the Commissioner or has he not exceeded his authority; and certainly — and nothing would prevent you, in representing your clients’ interest both of you, by staying in touch with the Attorney General’s Office. I’m sure he would like any evidence that is relevant to this issue, and if you present it to the Attorney General and he offers it and it’s relevant, it will be heard. But — and in addition to that, as far as— so I think it’s this Court’s finding, that you do not have a right to intervene.
      “Now, as far as permissive intervention; I believe that it would cause delay. And I don’t see the necessity of the value of the intervention in terms of resolving the issues before this Court. And, therefore, I’m going to deny the motions to intervene. . . .
      “We are talking about a temporary injunction, and I’m anxious, and I think [Polymer’s counsel] is anxious — I think everybody is anxious to get this case moving. And that’s why I’m ruling from the bench.”
      Both the town of Farmington’s attorney and FRCE’s attorney took exceptions to the court’s ruling. The court then proceeded to schedule for the following Monday a hearing on Polymer’s motion for a temporary injunction.

       On April 20,1993, the trial court granted Polymer’s request for a temporary injunction restraining the commissioner from requiring precontrol stack testing and denied a request for temporary injunction to restrain the commissioner from requiring further testing pursuant to other methods, but only if those methods were conducted under specific technical conditions set by the court. On May, 4,1993, the Chief Justice granted the commissioner’s petition for certification pursuant to § 52-265a. That action is pending before our Supreme Court.

       We note that the general language “other proceeding” follows the specific terms “administrative” and “licensing” proceedings in the statute. “The general terms will be construed to embrace things of the same general kind or character as those specifically enumerated.” State v. Russell, 218 Conn. 273, 278, 588 A.2d 1376 (1991); Cheshire Mortgage Service, Inc. v. Montes, 223 Conn. 80, 104 n.31, 612 A.2d 1130 (1992). This rule of construction is frequently referred to as ejusdem generis. Cheshire Mortgage Service, Inc. v. Montes, supra.

       General Statutes § 22a-19 (a) also permits any person to initiate an independent declaratory or injunctive action. Red Hill Coalition, Inc. v. Conservation Commission, 212 Conn. 710, 715, 563 A.2d 1339 (1989); Connecticut Water Co. v. Beausoleil, 204 Conn. 38, 44-45, 526 A.2d 1329 (1987).

       The dissent does not dispute our conclusion that General Statutes § 29a-19 (a) applies only to actions that implicate environmental and not civil rights actions. The dissent’s conclusion appears to rest on its assertion that despite the relief sought by the plaintiffs, they more properly should have taken an appeal from the actions of the agency. We do not agree that we can, by judicial fiat, change the nature of the action.

       Practice Book § 99 provides: “The court may determine the controversy as between the parties before it, if it can do so without prejudice to the rights of others; but, if a complete determination cannot be had without the presence of other parties, the court may direct that they be brought in. If a person not a party has an interest or title which the judgment will affect, the court, on his motion, shall direct him to be made a party.”
      Practice Book § 100 provides: “Except as provided in Secs. 157 and 198 no action shall be defeated by the nonjoinder or misjoinder of parties. New parties may be added and summoned in, and parties misjoined may be dropped, by order of the court, at any stage of the cause, as it deems the interests of justice require.”
      General Statutes § 52-102 provides: “Upon motion made by any party or nonparty to a civil action, the person named in the party’s motion or the nonparty so moving, as the case may be, (1) may be made a party by the court if that person has or claims an interest in the controversy, or any part thereof, adverse to the plaintiff, or (2) shall be made a party by the court if that person is necessary for a complete determination or settlement of any question involved therein; provided no person who is immune from liability shall be made a defendant in the controversy.”
      General Statutes § 52-107 provides: “The court may determine the controversy as between the parties before it, if it can do so without prejudice to the rights of others; but, if a complete determination cannot be had without the presence of other parties, the court may direct that such other parties be brought in. If a person not a party has an interest or title which the judgment will affect, the court, on his application, shall direct him to be made a party.”

       While the attorney general welcomed FRCE as a party and agreed that the trial court should have admitted FRCE’s motion to intervene, we are not bound by such concessions. See State v. Ray, 30 Conn. App. 95, 100, 619 A.2d 469, cert. granted on other grounds, 225 Conn. 919, 625 A.2d 822 (1993); but see State Board of Education v. Waterbury, 21 Conn. App. 67, 74 n.7, 571 A.2d 148 (1990).

       We disagree with the dissent’s attempt to analogize State Board of Education v. Waterbury, 21 Conn. App. 67, 571 A.2d 148 (1990), with the present case. In State Board of Education v. Waterbury, supra, 73-74, the court did not set forth the standard of review it applied. Nonetheless, under either the clearly erroneous or abuse of discretion standard, the appellants have not demonstrated that the trial court erred. In State Board of Education v. Waterbury, supra, 74, this court concluded that in a desegregation action while “the attainment of the ultimate goal, the realization of the school racial balancing plan, may be the same, the plaintiffs and the appellants may well be at odds with regard to the structure of settlement proposals, delays and concessions, which the current plaintiffs might be willing to afford the defendants, arguably to the detriment of the appellants’ interest, and concern for the immediate implementation of the plan.” This court noted that “the appellants have ‘more parochial interests’ dealing with the education of their children.” Id. “[T]he [intervenors’] direct and limited interest in ensuring that any desegregation plan does not disproportionately impose the burdens of desegregation on them is quite distinguishable from the plaintiffs’ general institutional concerns for racial balance in Connecticut schools.” Id.
      Here, the trial court concluded that the attorney general would adequately represent FRCE’s interest in the proceeding. We cannot say that the trial court’s implicit finding that the attorney general’s interest and FRCE’s interest are sufficiently parallel is clearly erroneous. If FRCE wanted to challenge the court’s underlying findings, it should have filed a motion for articulation. Practice Book § 4051. No evidence has been presented to demonstrate that FRCE’s interests would be compromised or rights dissipated by having the attorney general represent it. We also cannot say that in concluding that the attorney general would adequately represent FRCE’s interest, the trial court abused its discretion.
      The issue is not whether we would have made a different factual determination than did the trial court or if we would have exercised discretion differently, but the issue is whether the factual determination is clearly erroneous and the action resulting therefrom represented an abuse of discretion. We are convinced that both inquiries must be answered in the negative.

       FRCE also cites Practice Book §§99 and 100 as grounds for intervention as of right. As did the majority, I have relied on the provisions in the General Statutes as well as those in the Practice Book.

       I note that the plaintiffs have raised for the first time on appeal the argument that General Statutes § 22a-19 does not provide FRCE with a right of intervention in this case because the present action is a “civil rights action,” not an administrative appeal. This issue was never raised before the trial court nor was it presented to this court as an alternate ground of decision. The issue was first raised in its brief. It is well settled that only in the most exceptional circumstances will an appellate court consider a claim that was not raised in the trial court. Adolphson v. Zoning Board of Appeals, 205 Conn. 703, 716, 535 A.2d 799 (1988); Board of Education v. Local 1282, 31 Conn. App. 629, 633-34, 626 A.2d 1314 (1993).

       In State Board of Education v. Waterbury, 21 Conn. App. 67, 72, 571 A.2d 148 (1990), this court drew on case law interpreting the intervention as of right provision of the Federal Rules of Civil Procedure; e.g., United States v. Board of Education, 88 F.R.D. 679 (1981); and concluded that “even under these [federal] standards, we find that the appellants here qualify for intervention as of right.” It is unclear whether this court has expressly adopted this four part analysis in all cases involving intervention as of right under General Statutes §§ 52-102 and 52-107 and Practice Book §§ 99 and 100. Certainly, the four part analysis articulated in United States v. Board of Education, supra, offers a convenient and fair framework for analysis.

       7C C. Wright & A. Miller, Federal Practice and Procedure (2d Ed. 1986) § 1909, p. 346, summarized federal law regarding an applicant’s burden of showing inadequate representation as follows: “[IJnterests may be different without being adverse but it has been increasingly recognized in recent cases that interests need not be wholly adverse before there is a basis for concluding that existing representation of a different interest may be inadequate. . . . A discriminating appraisal of the circumstances of the particular case is required, but since the rule is satisfied if there is a serious possibility that the representation may be inadequate, all reasonable doubts should be resolved in favor of allowing the absentee, who has an interest different from that of any existing party, to intervene so that he may be heard in his own behalf.” (Internal quotation marks omitted.)

       Additional support for FRCE’s intervention came from the town of Farmington, which was also barred from intervening.

       In fact, notwithstanding its consent to certain restrictions, Polymer objected to the restrictions and obtained an ex parte order restraining the commissioner from enforcing the restrictions.