author: Foti, J.

text:
    Weldon Business Group v. Dwight Owen Schweitzer
    (8145)
    Dupont, C. J., Spallone and Foti, Js.
    Argued January 30
    decision released August 7, 1990

      Mary F. Haddon, for the appellant (defendant).

      Thomas F. Morgan, for the appellee (plaintiff).
   Foti, J.

The defendant appeals from the judgment rendered following a hearing in damages. He claims that the trial court improperly (1) denied his motion to open the default, (2) denied his request for a continuance, and (3) denied his right to contest the amount of damages at the hearing in damages. We affirm the trial court’s judgment.

The facts are not in dispute. The plaintiff commenced this action alleging breach of contract and unjust enrichment. The defendant filed an answer and special defenses, including fraud and breach of contract. On November 16,1987, the defendant was served with a request for disclosure and production. A notice of this request was filed with the court. During the course of the trial court proceedings, the plaintiff filed several motions for default based upon the defendant’s failure to comply fully with this request for disclosure and production.

On December 21,1987, the plaintiff moved to default the defendant for his failure to comply. On February 26, 1988, the court indicated that a default would enter if the defendant did not file his compliance by March 18, 1988. On March 17,1988, the defendant filed a notice of compliance with discovery requests, but failed to respond to the plaintiff’s interrogatories. On April 28, 1988, the plaintiff filed a second motion for default. Once again the defendant responded only to the plaintiff’s discovery requests. On May 11, 1988, the plaintiff filed a third motion for default. Pursuant to Practice Book § 21, this motion also requested sanctions because of the defendant’s failure to respond fairly and adequately to the request for disclosure and production. On March 20,1989, the court, Berdon, J., granted the default motion. The defendant moved to open the default, but this motion was denied by the court, Fracasse, J. At that time, the court scheduled a hearing in damages for May 18,1989. The plaintiff appeared at this hearing, but the defendant did not. Counsel for the plaintiff informed the court that the defendant had requested a continuance because he had a deposition scheduled for that day. The court, Fracasse, J., stated that “counsel do not reschedule matters without consent of the court ...” and rescheduled the hearing in damages for the following day.

On May 19,1989, the parties were ordered to appear before a trial referee, Hon. Harold M. Mulvey, and to proceed with the hearing in damages. After this hearing, judgment was rendered in favor of the plaintiff in the amount of $10,685.45.

The defendant first claims that the trial court abused its discretion by refusing to open the default. He asserts that he was prevented from opposing the motion for default on March 20,1989 due to a clerical mistake in his counsel’s office. He also contends that he complied with the plaintiff’s request for production and discovery on May 5, 1989.

“ ‘The determination of whether to set aside the default is within the discretion of the trial court.’ . . .” Voluntown v. Rytman, 21 Conn. App. 275, 283, 573 A.2d 336 (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.” Pool v. Bell, 209 Conn. 536, 541, 551 A.2d 1254 (1989). “In determining whether there has been an abuse of discretion, the ultimate issue is whether the court could reasonably conclude as it did.” DiPalma v. Wiesen, 163 Conn. 293, 298-99, 303 A.2d 709 (1972).

Practice Book § 376 provides that a motion to set aside a default may be granted with good cause shown where judgment has not been rendered. In the present case, default was entered because the defendant failed to comply properly with the plaintiff’s discovery requests. The defendant’s argument that he was prevented from appearing to oppose the motion for default is of no particular consequence. There has been no showing that he was prevented from complying with the discovery request by mistake, accident, or other reasonable cause prior to the date default was entered. Equally unpersuasive is the defendant’s argument that the default entered on March 20, 1989, should have been opened because proper discovery was later filed on May 5, 1989. Neither of the arguments offered by the defendant show that good cause existed for his delay in complying with the plaintiff’s requests. Because the plaintiff’s discovery requests were pending from November 16,1987, and the defendant failed to show good cause why proper discovery responses were not filed prior to March 20, 1989, the date the default was entered, the trial court acted well within its discretion when it denied the defendant’s motion to open the default.

The defendant next claims that the trial court abused its discretion by not granting the continuance he requested, and then rescheduling the hearing in damages for the following day. He argues that the parties informally agreed to a two week extension before going forward on the hearing in damages. The defendant does not contend that such an agreement binds the court. Rather, he argues that the court should have at least inquired whether the defendant was available to appear on the following day, whether a hardship would be caused if he did appear, or whether he would still be engaged in a deposition. The defendant overlooks the obvious, that is, that the court need not have given the one day continuance it did grant. That being so, the court was in no way obligated to make any inquiries. The court could reasonably have considered a number of factors when deciding not to grant a two week continuance, not the least of which was that parties to an action may not continue matters without the consent of the court. Other factors most likely to have been considered here were effective caseflow management, the history of delay in the case, prejudice to the parties should further delay be allowed and the fact that parties deserve to be heard in a reasonable fashion, not one predicated on the convenience of counsel.

It also bears noting that the defendant was present at the hearing in damages and could show no prejudice from the denial of his request for a two week continuance.

The defendant’s final claim is that he was prevented from submitting evidence regarding the amount of damages. He claims that during the hearing in damages he “attempted to offer a draft notice of defense as an exhibit,” and that evidence was offered as to damages but was not permitted. The defendant’s motion for articulation on this point was denied. No motion for review of the denial of the motion for articulation was filed before this court; and the brief presented to this court by the defendant is insufficient for us to give a proper review of this claim. It is the obligation of the defendant, as appellant, to supply this court with a record adequate to review his claim. State v. Anderson, 209 Conn. 622, 633, 533 A.2d 589 (1989).

The judgment is affirmed.

In this opinion the other judges concurred.


source: Caselaw Access Project

author: Cretella, J.

license: Public Domain

text:
    State of Connecticut v. Michael Crowley
    (8166)
    Spallone, Lavery and Cretella, Js.
    Argued May 1
    decision released August 7, 1990

      Craig A. Raabe, with whom, on the brief, was Sally S. King, for the appellant (defendant).

      RitaM. Shair, deputy assistant state’s attorney, with whom were Michael Dearington, state’s attorney, and, on the brief, John WaddocJc, assistant state’s attorney, for the appellee (state).
   Cretella, J.

The defendant appeals from a judgment of conviction rendered after a jury trial on the charge of selling narcotics in violation of General Statutes § 21a-277 (a). He claims that the trial court should not have prohibited him from impeaching a state’s witness for bias and lack of credibility and should not have admitted highly prejudicial hearsay statements of a third party into evidence.

The jury could reasonably have found the following facts from the testimony presented at trial. On the morning of July 29, 1987, the defendant was selling heroin on Asylum Street in New Haven. Two plain clothed undercover agents assigned to the Statewide Narcotics Task Force, Detective Vaughn Maher and Officer Mark Consorte, drove into the neighborhood in a red Camaro. They stopped on Sylvan Avenue alongside an Hispanic man on a bicycle. A brief conversation ensued in which the unidentified man on the bicycle informed the officers that if they drove down Asylum Street, they would find a black man named “Mike” who could sell them some heroin, or “power” in the idiom of the street. The officers followed these instructions and spotted the defendant. When the officers parked their vehicle next to the defendant, he approached, and one of the officers asked for some power. The defendant retrieved a brown bag containing several glassine bags of heroin from the back of a nearby street sign. He asked how many glassine bags the officers wanted, and Maher responded that they wanted one. The defendant tendered one bag and accepted $30 in unmarked Narcotics Task Force funds in exchange. He was then arrested.

I

The defendant claims that the trial court should not have prohibited him from impeaching Maher for bias or prejudice. He maintains that he did not sell heroin to the two officers in the Camaro because he recognized Maher and knew him to be a police officer. Both Maher and the defendant were members of the New Haven police force in 1972.

The defendant sought to testify that he is disliked by members of the New Haven police force. In an offer of proof, the defendant stated that ill feelings toward him were engendered when he was acquitted of the charge of receiving a bribe as a police officer. After severance from the police force, he was convicted of robbery and assault. The defendant claimed, in his offer of proof, that this latter incident further exacerbated bad feelings toward him since he had shot a New Haven police officer in the course of the robbery. The court sustained the state’s objection to this evidence for lack of relevance. The court later excluded defense counsel’s question as to whether the defendant had engaged in a shootout with the New Haven police department in 1973.

Also on direct examination, the defendant sought to testify as to his ouster from a block watch meeting held at a New Haven police station. The defendant was prepared to testify that Maher was among the policemen who escorted him from the building. The trial court excluded this evidence as well on the basis of lack of relevance.

The defendant claims that the court should not have excluded his testimony because it was highly probative of bias stemming from Maher’s association with the New Haven police force. “Impeachment of a witness for bias is a matter of right.” State v. Shipman, 195 Conn. 160, 163, 486 A.2d 1130 (1985). “[Evidence] tending to indicate malice or ill will toward another [is] generally admissible in situations where such states of mind are material. . . . The bias or prejudice of a witness may properly be shown either by cross-examination or by testimony of other witnesses. . . . [W]here no foundation has been laid by cross-examination of the witness who is under attack for bias or prejudice, the decision whether or not to admit impeaching [evidence] . . . lies within the judicial discretion of the court.” (Citations omitted.) State v. Mahmood, 158 Conn. 536, 539-40, 265 A.2d 83 (1969); Fairbanks v. State, 143 Conn. 653, 657, 124 A.2d 893 (1956).

The record shows that the defendant did not lay a foundation for the impeachment of Maher for bias. We therefore review the trial court’s action in excluding the proposed testimony for abuse of discretion. See State v. Johnson, 190 Conn. 541, 551, 461 A.2d 981 (1983). In Johnson, the defendant sought to show the bias of a former police chief, who was not a witness in the case. The defendant, himself a police officer, argued that the police chief and the victim were “working together to incriminate him.” Id., 550. The Supreme Court held that it was not an abuse of discretion for the trial court to exclude this testimony as irrelevant. Similiarly, the defendant in the present case presented the argument that Maher and Consorte had conspired against him. Even if the defendant had been allowed to attempt to impeach Maher for bias, there was no evidence of bias on the part of Consorte, who was a member of the Hamden police department. “It is a reasonable exercise of judicial discretion to exclude . . . evidence the relevancy of which appears to be so slight and inconsequential that to admit it would distract attention which should be concentrated on vital issues of the case.” (Citations omitted.) State v. Moynahan, 164 Conn. 560, 589, 325 A.2d 199, cert. denied, 414 U.S. 976, 94 S. Ct. 291, 38 L. Ed. 2d 219 (1973).

II

The defendant’s second claim is that his right to impeach Maher was improperly restricted when the trial court excluded questions concerning whether Maher was trained in techniques of deception as an undercover narcotics officer. The defendant argues that Maher’s enhanced ability to deceive is relevant to his credibility as a witness. In support of his claim, the defendant cites the well settled proposition of law that a witness may be impeached by specific acts of misconduct that evidence a lack of veracity. See State v. Avis, 209 Conn. 290, 305, 551 A.2d 26 (1988), cert. denied, 489 U.S. 1097, 109 S. Ct. 1570, 130 L. Ed. 2d 937 (1989). The defendant does not argue that Maher’s activities as an undercover agent constituted misconduct.

The theory of the defendant was that because Maher was able to deceive drug dealers that he was a drug buyer and not an undercover officer, he had the ability to also deceive the jury with his testimony about the events that transpired.

The comments and discussion by the court concerning this unique and novel approach to witness impeachment appear to reflect that the court viewed the same with incredulity as do we. The evidence was properly excluded.

Ill

The defendant’s final claim is that the court should not have admitted certain highly prejudicial hearsay statements of a third party into evidence. The facts relevant to this claim are as follows. On direct examination of Maher, the state sought to elicit testimony that a Hispanic man on a bicycle on Sylvan Street had informed the undercover officers that if they drove around the corner to Asylum Avenue, they would meet a man named Mike in a red hat who would be able to sell them power. Upon objection, the court ruled that this testimony was inadmissible hearsay.

Thereafter, defense counsel commenced to cross-examine Maher about factual details of the officers’ encounter with the defendant on Asylum Avenue. Maher testified that after they pulled the Camaro over to the side of the road near the defendant, a fifteen to twenty second conversation took place. Defense counsel then asked, “What did you say to that person [the defendant] during that 15 to 20 [second] conversation?” to which Maher replied, “He asked what we were looking for. I responded by telling him that a Latin male at the corner had stopped us and told us that we could purchase the narcotic labeled as power from him.”

. On redirect, the state questioned Maher as to the details of his encounter with the Hispanic male on the bicycle. Defense counsel objected to Maher’s testimony on this matter on the basis of hearsay, but the trial court ruled that the defendant’s question during cross-examination had opened the door. We agree. “[A] party who delves into a particular subject during the examination of a witness cannot object if the opposing party later questions the witness on the same subject.” State v. Graham, 200 Conn. 9, 13, 509 A.2d 493 (1986); State v. Aleksiewicz, 20 Conn. App. 643, 656, 569 A.2d 567 (1990).

The judgment is affirmed.

In this opinion the other judges concurred.

       “In most jurisdictions a party is not permitted to impeach the credibility of a witness against him by introducing independent testimony of a statement or act of the witness which shows his bias or prejudice, without laying a foundation for the testimony by calling the attention of the witness to the statement or act alleged to show bias or prejudice, and thus giving him an opportunity to explain it.” Annot., Necessity of Laying Foundation for Evidence Showing Bias or Prejudice of Witness, 16 A.L.R. 984 (1921).


author: O’Connell, J.

text:
    Richard T. Smith v. Victor Liburdi, Warden
    (8346)
    O’Connell, Norcott and Landau, Js.
    Argued May 7
    decision released August 7, 1990

      Martin Zeldis, assistant public defender, with whom, on the brief, was G. Douglas Nash, public defender, for the appellant (petitioner).

      Susann E. Gill, assistant state’s attorney, with whom, on the brief, was Michael Dearington, state’s attorney, for the appellee (petitioner).
   O’Connell, J.

This is an appeal by the petitioner from a judgment quashing his habeas corpus proceeding on grounds that it did not state a cause of action upon which relief could be granted. We affirm the judgment of the trial court.

The petitioner was convicted of sexual assault in the first degree in violation of General Statutes § 53a-70. His conviction was affirmed in State v. Smith, 210 Conn. 132, 554 A.2d 713 (1989) (Smith I). In the present action, the petitioner seeks to establish an evidentiary record in order to resolve an issue he incorrectly assumes the Supreme Court left undecided in Smith I. The record simply does not support his theory.

The gravamen of the petitioner’s claim is that his imprisonment is illegal because the state used his silence, after Miranda warnings, to imply a false statement. See Doyle v. Ohio, 426 U.S. 610, 617-18, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976). In Smith I, the Supreme Court clearly and emphatically disposed of this issue by stating, “[t]he testimony does not indicate that the defendant remained silent or failed to respond to any question asked.” Smith I, supra, 146. Th eSmithl court further concluded that “[t]here is an insufficient factual foundation for the claim that the defendant remained silent after receiving Miranda warnings.” Id., 147.

“[W]hen a party has fully and fairly litigated his claims, he is barred from subsequent relitigation notwithstanding ‘any other admissible matter which might have been offered’ to sustain them in the prior proceeding.” State v. Ellis, 197 Conn. 436, 468, 497 A.2d 974 (1985). We agree with the habeas court that the Supreme Court in Smith I completely decided this issue.

The defendant has had his day in court.

The judgment is affirmed.

In this opinion the other judges concurred.


text:
    Town of Farmington v. Kevin V. Dowling
    (8736)
    O’Connell, Foti and Cretella, Js.
    Argued June 12
    decision released August 7, 1990

      Victor J. Dowling, for the appellant (defendant).

      Gregory T. DAuria, with whom was Charles L. Howard, for the appellee (plaintiff).
   O’Connell, J.

This is an action for back taxes in which the defendant filed a counterclaim alleging an illegal taking of the taxed land by the plaintiff town several years after the tax debt accrued. The plaintiff moved to strike the counterclaim on the ground that it did not arise out of the same transaction that was the subject of the complaint. Practice Book § 116. The defendant failed to file an opposition memorandum five days before the hearing date, arriving instead at the oral argument with his opposition brief in hand.

The trial court ruled that the five day prior filing requirement of Practice Book § 155 applied to motions to strike counterclaims as well as to motions to strike complaints and thus the defendant had consented to the striking by failing to file his opposition memorandum in a timely manner. Hughes v. Bemer, 200 Conn. 400, 510 A.2d 992 (1986). Accordingly, the court granted the plaintiff’s motion to strike the counterclaim and the defendant appealed.

This case presents the question of whether there is an irreconcilable conflict between §§ 155 and 204 of the Practice Book. We answer this question in the negative.

Practice Book § 204, referring to several specifically enumerated motions, including a motion to strike, provides that the nonmoving party may file a brief at any time before the matter appears on the short calendar. Section 155 requires that any party objecting to a motion to strike shall file his brief five days before the date the motion appears on the short calendar.

The rules of statutory construction apply to the rules of practice. State v. Schaeffer, 5 Conn. App. 378, 384, 498 A.2d 134 (1985). Section 204 regulates several motions, only one of which is a motion to strike, whereas § 155 exclusively addresses motions to strike. “A statutory provision that articulates with greater specificity the resolution of a particular controversy is presumed to prevail over a more general provision.” State v. Daniels, 207 Conn. 374, 393, 542 A.2d 306 (1988). Furthermore, the rules of practice were promulgated to create one harmonious and consistent body of law. See Kinney v. State, 213 Conn. 54, 65, 566 A.2d 670 (1989). “If courts can by any fair interpretation find a reasonable field of operation for two [rules of practice] without destroying their evident meaning, it is the duty of the courts to do so, thus reconciling them and according to them concurrent effect.” Farms Country Club, Inc. v. Carini, 172 Conn. 439, 444, 374 A.2d 1094 (1977). Accordingly, we will not interpret § 204 in a manner that renders § 155 meaningless. See Connecticut Light & Power Co. v. Costle, 179 Conn. 415, 422, 426 A.2d 1324 (1980). In the case of a motion to strike we conclude that § 155 controls over § 204.

There is no merit to the defendant’s other claims.

The judgment is affirmed.

In this opinion the other judges concurred.

       Practice Book § 155 was amended on June 16, 1989, and deleted the following language from its text: “An adverse party who fails timely to file such a memorandum pursuant to this section shall be deemed by the court to have consented to the granting of the motion.” This amendment became effective on October 1, 1989, and, therefore, does not effect the defendant’s counterclaim which was struck on September 12, 1988.

       The pertinent part of Practice Book § 204 provides: “Memorandum of law may be filed by [nonmoving] parties on or before the time the matter appears on the short calendar.”

       The pertinent part of Practice Book § 155 provides: “If an adverse party objects to this motion [to strike] he shall, at least five days before the date the motion is to be considered on the short calendar, file and serve in accordance with Sec. 120 a memorandum of law.” (Emphasis added.)


text:
    State of Connecticut v. Gloria Monar
    (7397)
    Spallone, La very and Cretella, Js.
    Argued May 1
    decision released August 14, 1990

      Charles W. Fleischmann, with whom, on the brief, was John R. Gulash, Jr., for the appellant (defendant).

      Frederick W. Fawcett, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and C. Robert Satti, Jr., assistant state’s attorney, for the appellee (state).
   Cretella, J.

The defendant appeals from her conspiracy conviction challenging the denial of her motion for judgment of acquittal and the denial of her motion to correct sentence. She was charged by means of a substitute information, in three counts, with the following offenses: (1) possession of a narcotic substance with intent to sell or dispense by a person who is not drug-dependent, in violation of General Statutes § 21a-278 (b); (2) transportation of a narcotic substance with intent to sell or dispense by a person who is not drug-dependent, in violation of General Statutes § 21a-278 (b); (3) conspiracy to possess or transport a narcotic substance with intent to sell or dispense, in violation of General Statutes §§ 53a-48 and 21a-277. After a jury trial, she was convicted on only the third count. She raises the following claims in this appeal: (1) the trial court did not instruct the jury on the elements of the substantive offenses when giving instructions on the conspiracy charge; (2) the wording of the conspiracy charge failed to advise her adequately of the nature and cause of the accusations against her; (3) remarks by the state’s attorney during closing argument deprived her of a fair trial; (4) the court should not have admitted evidence of a sum of money found in the defendant’s purse; (5) the third count of the substitute information was fatally defective because it charged three offenses in the disjunctive; and (6) the trial court should not have denied her motion to correct sentence.

The jury could have reasonably found the following facts, among others. The state’s attorney’s office and the Stratford police department established a surveillance at the Howard Johnson’s Motor Lodge in Stratford, on the basis of information received through a wiretap. At approximately 8 p.m. on July 24, 1987, a white vehicle containing four occupants entered the parking lot. Two females, the defendant and her daughter, exited the vehicle and were arrested. The daughter was carrying a satchel on her shoulder that contained approximately $900,000 worth of cocaine. The defendant had $31,480 in her purse.

I

The defendant claims that the trial court failed to instruct the jury on the elements of the offense alleged in the third count. At trial, she objected to the court’s charge on the third count, stating that although the court had instructed on the elements of conspiracy, the court did not elaborate upon the elements of the substantive offense alleged in that count, viz., a violation of General Statutes § 21a-277 (a).

We review claims regarding the court’s charge to the jury according to certain well established principles. Jury instructions must be read as a whole. State v. Rouleau, 204 Conn. 240, 252, 528 A.2d 343 (1987). We review “ ‘the substance of the charge rather than the form of what was said . . . .’ ” State v. Silano, 204 Conn. 769, 776, 529 A.2d 1283 (1987). The charge must be considered from the standpoint of its probable effect on the jury in guiding them to a proper verdict. State v. McCalpine, 190 Conn. 822, 830, 463 A.2d 545 (1983). It must fairly present the case to the jury so that no injustice is done. State v. Storlazzi, 191 Conn. 453, 466, 464 A.2d 829 (1983). It need not be exhaustive, perfect or technically accurate. State v. Mason, 186 Conn. 574, 585, 442 A.2d 1335 (1982).

The record reveals that although the court gave detailed instructions on the elements of conspiracy and on the elements of the violations of § 21a-278 (b) alleged in the first two counts, it did not instruct the jury on the elements of a violation of General Statutes § 21a-277 (a). In its instruction on the third count, however, the court stated that the underlying crime, which was the object of the conspiracy alleged in the third count, was “the possession and distribution of cocaine.”

Section 21a-278 (b) and 21a-277 (a) both proscribe the activities of possessing or transporting narcotics with intent to sell. The only significant difference between the two statutes, for purposes of this case, is that “unlike § 21a-278 (b), drug dependency is neither an exemption nor an element of § 21a-277 (a).” State v. Luca, 19 Conn. App. 668, 673, 563 A.2d 752 (1989).

The court’s instructions could have misled the jury to believe that it could not convict her of the charge alleged in the third count unless it found beyond a reasonable doubt that she was not drug-dependent. If the jury was confused in this manner, that confusion could have only benefitted the defendant by making her conviction on the third count less likely. We conclude that although the court’s instruction possibly misled the jury, the inaccuracy in the instruction had no effect on the ultimate verdict of guilty.

The charge was favorable to the defendant and is therefore not a justifiable basis of complaint by her. State v. Cochran, 191 Conn. 180, 188, 463 A.2d 618 (1983).

II

Two of the defendant’s claims will be considered together because they are closely related. First, the defendant claims that the third count of the substitute information failed to apprise her adequately of the nature and cause of the accusations against her. The third count refers to General Statutes § 21a-277, but does not refer to a specific subsection of that statute. The defendant did not request a bill of particulars. “Under our practice, it is sufficient for the state to set out in the information the statutory name of the crime with which the defendant is charged, leaving to the defendant the burden of requesting a bill of particulars more precisely defining the manner in which the defendant committed the offense.” State v. Ruiz, 171 Conn. 264, 270, 368 A.2d 222 (1976); see Practice Book §§ 830-833; State v. Davis, 141 Conn. 319, 320-21, 106 A.2d 159 (1954).

The defendant claims that Practice Book §§ 831 and 832 are unconstitutional in that they place the burden of requesting a more definite statement of the charges upon the defendant. Prior to 1965, the Connecticut constitution provided that “[i]n all criminal prosecutions, the accused shall have a right ... to demand the nature and cause of the accusation.” Const, of 1818, art. I, § 9. The defendant contends that the rule of State v. Davis, supra, placing the burden of requesting a bill of particulars on the defendant, made sense under the constitution in effect at that time because the former article first, § 9, gave the defendant only a right “to demand” such a bill. At present, the constitution provides that “[i]n all criminal prosecutions, the accused shall have a right ... tobe informed of the nature and cause of the accusation.” Const, of 1965, art. I, § 8. (Emphasis added.) According to the defendant, the substitution of the phrase “to be informed” in lieu of “to demand” shows that the framers of the 1965 constitution intended to relieve the defendant of the burden of having to demand a bill of particulars. A criminal defendant has a right, under our present constitution, to be informed of the accusations against him, and if he is deprived of this right, the fact that he did not request a bill of particulars is irrelevant—so this defendant argues.

The relevant portion of art. I, § 8, of the Connecticut constitution of 1965 and of that section as amended in 1982; Conn. Const., amend XVII; is identical to language in the sixth amendment to the United States constitution. Practice Book §§ 831 and 832 are consistent with that language. Under federal law, the defendant’s constitutional right to be informed of the charges against him is met “[w]hen each count of [the] indictment contains the official citation of the statute under which the defendant is charged and the evidence constitutes precise proof of the charges in the indictment . . . .” United States v. Bales, 813 F.2d 1289, 1294 (4th Cir. 1987). This is similar to the rule of State v. Davis, supra. Under Davis, however, once the constitutional minimum has been met by an appropriate citation, the defendant has the burden of requesting a bill of particulars if she wants a more definite statement of the charges.

The defendant argues that even under State v. Davis, supra, the third count of the substitute information is defective in that it failed to cite a subsection of General Statutes § 21a-277. She contends that because the subsections of § 21a-277 proscribe different acts and carry different maximum penalties, she had a right to be charged under a particular subsection. She fails to, show, however, that her ability to prepare a defense was in any way prejudiced by the fact that she was not charged under a subsection. The defendant must show prejudice. See State v. Stepney, 191 Conn. 233, 241, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772 (1984).

Because the defendant and her daughter were arrested with approximately $900,000 of cocaine in their possession, the defendant could not be prosecuted under any subsection other than § 21a-277 (a). Subsection (a) applies to narcotics and hallucinogenic substances other than marihuana. Subsection (b) is expressly made inapplicable to narcotics such as cocaine. Subsection (c) applies to the possession of drug paraphernalia in a drug factory situation. “ ‘The offense should be described with sufficient definiteness and particularity to apprise the accused of the nature of the charge so he can prepare to meet it at trial.’ ” Id., 240. In this case, the prosecutor’s decision to cite section 21a-277 rather than subsection 21a-277 (a) could not possibly have misled the defendant. See State v. Sumner, 178 Conn. 163, 167-68, 422 A.2d 299 (1979).

Another claim of the defendant, closely related to the one just decided, is that, by failing to cite a subsection of General Statutes § 21a-277, the state, in effect, charged her under subsections (a), (b) and (c) in the disjunctive. In State v. Cofone, 164 Conn. 162, 167, 319 A.2d 381 (1972), our Supreme Court stated “The language of an indictment serves two primary purposes: it informs the accused of the nature of the crime charged and it acts as a bar to future criminal proceedings on the same cause. These functions dictate the retention of some limitations. Disjunctive charges, for example, are disfavored because they fail to apprise an accused of an exact crime; he, therefore, may not be able to prepare an adequate defense.” See also State v. Eason, 192 Conn. 37, 40, 470 A.2d 688 (1984).

The state’s decision to charge the defendant with conspiring to violate § 21a-277, rather than subsection 21a-277 (a), did not render the defendant vulnerable to prosecution under subsections (b) or (c). She and her daughter were not found in possession of a nonnarcotic controlled substance (subsection [b]) or drug paraphernalia in a drug factory situation (subsection [c]). The state’s citation to § 21a-277 would have apprised a reasonable person, exercising common sense, that she was being charged in the third count with conspiracy to sell or dispense cocaine. Again, there is no possibility that the citation to § 21a-277 failed to apprise the accused of the exact crime, or impaired her ability to prepare a defense. See State v. Cofone, supra.

III

The third claim of the defendant is that certain remarks by the prosecutor during closing argument deprived her of due process and a fair trial. No .objection was taken to the allegedly improper comments at the time they were made, and, thus, the defendant does not challenge any action on the part of the court. We have reviewed the defendant’s claim of prosecutorial misconduct under the four guidelines of State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). Focusing on the second guideline, we find that her claim is not of constitutional magnitude even though it alleges the violation of a constitutional right. “The defendant . . . bears the responsibility of demonstrating that [her] claim is indeed a violation of a fundamental constitutional right. Patently nonconstitutional claims that are unpreserved at trial do not warrant special consideration simply because they bear a constitutional label.” Id., 240.

“Review of unpreserved claims of prosecutorial misconduct has been reserved for instances where the claimed misconduct was part of a pattern of misconduct repeated throughout the trial or was blatantly egregious.” State v. Horne, 19 Conn. App. 111, 128, 562 A.2d 43 (1989), citing State v. Williams, 204 Conn. 523, 537, 529 A.2d 653 (1987). Such circumstances do not exist in the present case.

IV

Next, the defendant claims that the trial court should have granted her motion in limine and not allowed testimony regarding the seizure of $31,480 from her purse. Her objection is that this evidence is not relevant to the conspiracy charge contained in the third count of the substitute information. She cites State v. Groos, 110 Conn. 403, 408, 148 A. 350 (1930), for the proposition that “[t]he admissibility of articles found in a defendant’s possession depends upon their being connected with or traced to the crime charged.”

The trial court possesses broad discretionary power in determining the relevancy of evidence, and its determinations will remain undisturbed unless a clear abuse of discretion is shown. State v. Mendez, 15 Conn. App. 531, 536, 545 A.2d 587, cert. denied, 209 Conn. 810, 548 A.2d 441 (1988). The quantity of money seized from the defendant was relevant to the issue of intent to sell cocaine. State v. Holeman, 18 Conn. App. 175, 179, 556 A.2d 1052 (1989); State v. Ruth, 16 Conn. App. 148, 155, 547 A.2d 548 (1988); State v. Uribe, 14 Conn. App. 388, 393-94, 540 A.2d 1081 (1988).

V

The defendant’s final claim is that the trial court should have granted her motion to correct her sentence. The trial court sentenced the defendant on August 26, 1988, to ten years incarceration for “conspiracy to commit violation of the state dependency producing drug law, in violation of section 53a-48 and 21a-277 of the Connecticut General Statutes in the manner and form as per said substitute information on file.” The basis for her motion to correct sentence is, in her own words, that “[tjhere is no articulated penalty for a violation of Conn. Gen. Stat. Sec. 21a-277. Any sentence, therefore, is without legislative authority and is illegal.”

As we have stated throughout this opinion, it was abundantly clear under the circumstances of this case that the defendant was tried and convicted of a violation of subsection 21a-277 (a). There is an articulated penalty for such a violation. The maximum sentence includes incarceration for fifteen years. The same maximum sentence may be imposed upon a person who conspires to violate § 21a-277 (a). See General Statutes § 53a-51. The trial court lawfully sentenced the defendant to ten years incarceration.

The judgment is affirmed.

In this opinion the other judges concurred.

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

       General Statutes § 21a-277 provides in relevant part: “PENALTY FOR ILLEGAL MANUFACTURE, DISTRIBUTION, SALE, PRESCRIPTION, DISPENSING, (a) Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any controlled substance which is a hallucinogenic substance other than marihuana, or a narcotic substance, except as authorized in this chapter, for a first offense, shall be imprisoned not more than fifteen years and may be fined not more than fifty thousand dollars or be both fined and imprisoned; and for a second offense shall be imprisoned not more than thirty years and may be fined not more than one hundred thousand dollars, or be both fined and imprisoned; and for each subsequent offense, shall be imprisoned not more than thirty years and may be fined not more than two hundred fifty thousand dollars, or be both fined and imprisoned.
      “(b) Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with intent to sell or dispense, possesses with intent to sell or dispense, offers, gives or administers to another person any controlled substance, except a narcotic substance, or a hallucinogenic substance other than marihuana, except as authorized in this chapter, may, for the first offense, be fined not more than twenty-five thousand dollars or be imprisoned not more than seven years or be both fined and imprisoned; and, for each subsequent offense, may be fined not more than one hundred thousand dollars or be imprisoned not more than fifteen years, or be both fined and imprisoned.
      “(c) No person shall knowingly possess drug paraphernalia in a drug factory situation as defined by subdivision (20) of section 21a-240 for the unlawful mixing, compounding or otherwise preparing any controlled substance for purposes of violation of this chapter.”

       The defendant’s second and fifth claims are closely related and will be considered together.

       The third count reads as follows: “AND SAID STATE’S ATTORNEY FURTHER accuses the said GLORIA MONAR of Conspiracy and charges that at the Town of Stratford, Fairfield County, between the approximate times of 7:30 p.m. and 8:03 p.m., July 24, 1987 at Stratford and at other locations the said GLORIA MONAR, with intent that conduct constituting the crime of Violation of the State Dependency Producing Drug Law in violation of Section 21a-277 be performed, agreed with one or more persons to engage in or cause the performance of such conduct and there were committed one or more overt acts in the performance of such conspiracy in violation of Section 53a-48 of the Connecticut General Statutes.”

       “[Practice Book] Sec. 831. [Bill of Particulars]—Time for Filing
      “Pursuant to Sec. 811, the defendant may make a motion or the judicial authority may order at any time, that the prosecuting authority file a bill of particulars.
      “[Practice Book] Sec. 832. [Bill of Particulars]—Content
      “The judicial authority shall order that a bill of particulars disclose information sufficient to enable the defendant to prepare his defense, including but not being limited to reasonable notice of the crime charged and the date, time, and place of its commission.”

       The sixth amendment to the United States constitution provides in part that “[i]n all criminal prosecutions, the accused shall enjoy the right . ... tobe informed of the nature and cause of the accusation . . . (Emphasis added.)

       “Relying on the methodology of State v. Whistnant, 179 Conn. 576, 427 A.2d 414 (1980), we hold that a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail. The appellate tribunal is free, therefore, to respond to the defendant’s claim by focusing on whichever condition is most relevant in the particular circumstances.” State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).


author: Spallone, J.

text:
    James R. Stabenau et al. v. David Cairelli et al.
    (8363)
    Spallone, Daly and Norcott, Js.
    Argued May 3
    decision released August 14, 1990

      John R. Caruso, for the appellants (defendants).

      Mark E. Lowell, for the appellees (plaintiffs).
   Spallone, J.

The defendants appeal from the judgment of the trial court ordering them to return the plaintiffs’ deposit advanced toward the purchase of the defendants’ house. The defendants claim that the trial court improperly refused to enforce the liquidated damages clause in the contract of sale and improperly applied the doctrine of unjust enrichment. We affirm the judgment of the trial court.

The following facts are undisputed. By a written contract, the plaintiffs agreed to purchase the defendants’ house for $96,000. The contract provided for a $6000 deposit that, in the event of a breach by the buyer, was to be retained by the seller as liquidated damages. The deposit was returnable if the plaintiffs failed to obtain a mortgage commitment on or before April 1, 1983.

Prior to April 1, 1983, and before receiving a mortgage commitment, the plaintiff James R. Stabenau was informed by his employer that he might be fired for violations of the conditions of his employment. Stabenau promptly informed his mortgage company and the real estate broker of his potential loss of employment, and, on March 28, 1983, provided written notice to the broker that he could not proceed with the purchase. The broker immediately placed the property back on the market. The house sold within one month of the parties’ original closing date, at a price of $98,500, $2500 more than the original contract price.

The plaintiffs demanded the return of their $6000 deposit. The defendants refused, claiming that under the contract they were entitled to keep the deposit as liquidated damages. The plaintiffs brought suit for the return of their deposit on two counts, claiming return of the deposit pursuant to the contract and on the theory of unjust enrichment. The trial court found for the defendants on the first count, concluding that the plaintiffs themselves breached the contract and were not entitled to recover under its provisions for return of their deposit. The court found, however, that the plaintiffs’ breach was not willful and that the defendants had suffered no loss. The trial court therefore concluded that the retention of the deposit by the defendants would constitute unjust enrichment, and ordered the return of the deposit.

The defendants first claim that the trial court, having found the plaintiffs in breach of contract, should have enforced the liquidated damages provision. We disagree.

Otherwise valid liquidated damages clauses may not be enforced when the nonbreaching party suffers no damages. “[I]f the damage envisioned by the parties never occurs, the whole premise for their agreed estimate vanishes, and . . . neither justice nor the intent of the parties is served by enforcement.” Norwalk Door Closer Co. v. Eagle Lock & Screw Co., 153 Conn. 681, 689, 220 A.2d 263 (1966). A purchaser of real property “does not, despite his knowing default, forfeit the right to seek restitution of sums of money earlier paid under the contract of sale, even when such payments are therein characterized as liquidated damages. Vines v. Orchard Hills, Inc., 181 Conn. 501, 509, 435 A.2d 1022 (1980); Pierce v. Staub, 78 Conn. 459, 466, 62 A. 760 (1906).” Aetna Casualty & Surety Co. v. Murphy, 206 Conn. 409, 414, 538 A.2d 219 (1988). Despite the contract provisions, the defendants were not automatically entitled to keep the plaintiffs’ deposit and the court properly could consider the question of restitution.

The defendants next claim that the court incorrectly found that the plaintiffs proved the elements of their unjust enrichment claim. A buyer in nonwillful default can recover monies paid upon the contract and retained by the seller, despite an otherwise valid liquidated damages clause, where the seller has sustained no damages. Vines v. Orchard Hills, Inc., supra, 511.

A conclusion of unjust enrichment required the court to find that the plaintiffs’ breach was not willful and that the defendants sustained no damage or damage substantially less than the amount stipulated in the liquidated damages clause. Id., 513. These conclusions are factual findings that we will not retry on appeal. Morganti, Inc. v. Boehringer Ingelheim Pharmaceuticals, Inc., 20 Conn. App. 67, 74, 563 A.2d 1055 (1989); Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 222, 435 A.2d 24 (1980). Our review is limited solely to the determination of whether, on the record, the court’s determinations are clearly erroneous. Practice Book § 4061; Cookson v. Cookson, 201 Conn. 229, 242-43, 514 A.2d 323 (1986).

The defendants argue that the plaintiffs’ breach was willful in that they intentionally and voluntarily terminated the contract because of insecurities about future employment. “Willful” as a term of art requires more than a finding of deliberate action. The contemporary view is that the court must consider not only the deliberateness of the breach, but also other factors in determining whether to apply the court’s equitable jurisdiction. See Vincenzi v. Cerro, 186 Conn. 612, 616, 442 A.2d 1352 (1982). These factors include, among others, the degree of innocence of the breach, the amount of the detriment to the breaching party and the amount of the benefit conferred upon the nonbreaching party. 5A A. Corbin, Contracts § 1123.

Our review of the record indicates ample support for the trial court’s factual finding that the plaintiffs’ breach was not willful. The plaintiffs’ breach was prompted by a fear that the named plaintiff would lose his job and would, therefore, be unable to make payments required for the purchase of the property. The named plaintiff did not deliberately place his job in jeopardy for the purpose of avoiding this contract, and there was no evidence indicating any relationship between the named plaintiff’s alleged employment contract violations years earlier and his breach of this contract. Accordingly, we find that the trial court’s conclusion that the plaintiffs’ breach was not willful is not clearly erroneous.

The defendants next claim that the plaintiffs failed to carry their burden of proving that the defendants did not sustain actual damages as a result of the plaintiffs’ breach, and that the trial court, therefore, should have granted the defendants’ motion to dismiss after the plaintiffs rested their case.

The standard necessary to withstand a motion to dismiss is relatively low. “In considering a motion for judgment of dismissal under Practice Book § 302, a trial court is mandated to consider as true the evidence offered by the plaintiff and to draw all favorable and reasonable inferences from such evidence.” Strickland v. Vescovi, 3 Conn. App. 10, 14-15, 484 A.2d 460 (1984). In applying this standard, the trial court must bear in mind that it is the plaintiffs’ burden to establish that the defendants have been unjustly enriched. Vines v. Orchard Hills, Inc., supra, 510. The plaintiffs must, therefore, demonstrate that the property “could, at the time of their breach, have been resold at a price sufficiently higher than their contract price to obviate any loss of profits and to compensate the seller for any incidental and consequential damages.” Id., 514.

After drawing all favorable and reasonable inferences, the trial court reasonably concluded that the defendants had suffered no damages. The plaintiffs introduced evidence showing that the defendants’ property was to be sold to the plaintiffs for $96,000, that the property was conveyed one month after the plaintiffs’ contract closing date for $2500 more than the contract price, and that the plaintiffs had paid and the defendants had received a downpayment of $6000. The trial court found the market value of the house at the time of the breach to be $98,500. This evidence is sufficient to withstand a motion to dismiss on the basis of plaintiffs’ failure to introduce evidence of the defendants’ damages or lack thereof.

We find, therefore, that the trial court’s findings are supported by the evidence and the conclusions drawn therefrom fully comport with applicable law.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiffs in the action that is the subject of this appeal are James R. and Barbara L. Stabenau. The defendants are David and Carmen Cairelli.


text:
    Doris C. Donato v. Ralph Corrado
    (8209)
    Lavery, Cretella and Landau, Js.

      Argued June 13
    decision released August 14, 1990

      Timothy J. Fitzgerald, for the appellant (plaintiff).

      Michael J. Melly, for the appellee (defendant).
   Cretella, J.

The plaintiff who successfully brought this paternity action has appealed challenging the financial award contained in the judgment. She claims that the state trial referee, sitting as the trial court in this case, (1) should have awarded her full prejudgment support and maintenance expenses and the full amount of lying-in expenses, (2) should have granted a support award reflecting the respective financial abilities of the parties, and (3) should have awarded the plaintiff the full amount of her attorney’s fees. We reverse as to the first claim only.

The plaintiff claims that once the trial court determined that the defendant is the father of her minor child, it was required to award her prejudgment financial support and the full amount of her lying-in expenses. The trial court ascertained that the amount of support and maintenance from the time of birth to the date of judgment was $5550 and that the amount of lying-in expenses was $8437.75. The court did not award the plaintiff the full amount of such prejudgment support and lying-in expenses.

General Statutes § 46b-171 provides in relevant part that if the defendant in a paternity suit is found guilty, “the court shall ascertain the expense of lying-in and of support and maintenance of the child until the time of rendering judgment, and order him to pay the amount thereof to the complainant . . . Z’ (Emphasis added.) The defendant’s liability for the total lying-in expenses is made absolute by statute. Gaffney v. Saba, 6 Conn. Cir. 22, 23-24, 262 A.2d 617 (1969).

On the basis of the trial court’s findings of facts, as contained in its articulation, we find that the plaintiff is statutorily entitled to the full amount of her lying-in expenses of $8437.75 and prejudgment support expenses of $5550, a total amount of $13,987.75.

The plaintiff also claims that the court’s award of continuing child support and attorney’s fees is so minimal as to amount to an abuse of discretion. The record reveals no such abuse here. “The support orders entered in this case are well within the limits of reasonable discretion vested in the trial court with respect to such matters.” Cross v. Wilson, 35 Conn. Sup. 628, 639, 403 A.2d 1103 (1978). General Statutes § 46b-171 provides that a successful plaintiff in a paternity action is entitled to an award of reasonable attorney’s fees, but the trial court has broad discretion in determining the amount of attorney’s fees that will be allowed under the statute.

The judgment is reversed as to the award of lying-in and préjudgment support and maintenance expenses, and the case is remanded with direction to render judgment as on file except that the award of those expenses shall be modified to an amount of $13,987.75.

In this opinion, the other judges concurred.

       This statutory provision was subsequently amended by Public Acts 1989, No. 89-360, § 42. This amendment, effective July 1, 1989, does not apply to the present case, which was commenced on November 2,1988. Legislation is to be applied prospectively, unless there are clear indications to the contrary. Moore v. McNamara, 201 Conn. 16, 22, 513 A.2d 660 (1986).


author: Dupont, C. J.

text:
    Waine A. Hughes v. National Car Rental Systems, Inc.
    (8481)
    Dupont, C. J., Norcott and Lavery Js.
    Argued May 8
    decision released August 14, 1990

      Stewart M. Casper, with whom was Joseph N. Varón, for the appellant (plaintiff).

      J. Kevin Golger, for the appellee (defendant).
   Dupont, C. J.

The plaintiff appeals from the judgment rendered after the trial court granted the defendant’s motion to strike both counts of the plaintiff’s complaint. The sole issue is whether the plaintiffs complaint alleges a cause of action pursuant to General Statutes § 14-154a, “Liability of owner for damage caused by rented or leased car.”

Certain relevant allegations are made by the plaintiff. On September 12, 1986, Antoinette Pettway rented a car from the defendant. She subsequently entrusted the car to an acquaintance, Wayne Jones. That same evening, as Jones was operating the rental car on Interstate 95, he approached a vehicle driven by the plaintiff heading in the same direction. Jones was driving at an excessive speed, and was flashing the vehicle’s headlights and honking the horn. He overtook the plaintiff’s vehicle, pulled alongside it and fired a revolver into the passenger compartment. The bullet struck the plaintiff, causing severe and permanent injuries. Jones was subsequently convicted, after pleading guilty, of second degree reckless assault in violation of General Statutes § 53a-60 (a) (3). The plaintiff filed this action alleging that the defendant, as the lessor of the car, was liable for his injuries pursuant to General Statutes § 14-154a.

Section 14-154a provides that “[a]ny person renting or leasing to another any motor vehicle owned by him shall be liable for any damage to any person or property caused by the operation of such motor vehicle while so rented or leased, to the same extent as the operator would have been liable if he had also been the owner.” In its memorandum of decision, the court stated that the plaintiff had not alleged facts that would allow proof that the operation of the car caused the injuries. Rather, the allegations supported only the conclusion that the shooting caused the plaintiff’s injuries. The court, therefore, granted the motion to strike because the allegations were insufficient to state a cause of action under § 14-154a. The plaintiff argues that the shooting and the operation of the rented car were concurrent causes of his injury that were inextricably intertwined.

A motion to strike challenges the legal sufficiency of the pleadings. In reviewing the granting of a motion to strike, we construe the facts alleged in the complaint in a light most favorable to the pleader. Burns v. Gleason Plant Security, Inc., 10 Conn. App. 480, 482, 523 A.2d 940 (1987). In order to affirm the trial court’s decision, therefore, we must find that the plaintiff could not have proven, on the basis of the facts alleged in his complaint, that his injuries were “caused by the operation of [the defendant’s] motor vehicle.” This determination necessarily involves a review of the relevant statute and the plaintiff’s complaint.

Section 14-154a imposes a vicarious liability unknown at common law. The statute creates what has been termed a “statutory suretyship,” and holds the owner of the rented vehicle liable for injuries caused by the operation of the vehicle as if he were the operator. Gionfriddo v. Avis Rent A Car System, Inc., 192 Conn. 280, 287, 472 A.2d 306 (1984); Levick v. Norton, 51 Conn. 461, 469 (1884).

Underlying the imposition of this type of liability is a legislative policy of a deliberate allocation of a risk, which holds an enterprise liable for such injuries as a cost of doing business. See W. Prosser & W. Keeton, Torts (5th Ed.) § 69. Negligence is imputed to a third party because of “the social necessity to provide injured plaintiffs with financially responsible defendants.” Nowak v. Nowak, 175 Conn. 112, 125, 394 A.2d 716 (1978). “As in other branches of the law where strict liability is imposed, the legislature is free to conclude that costs associated with rentals to unsafe drivers should be borne by the enterprise that affords such drivers access to the highways, without requiring the injured party to show the negligence of the enterprise itself.” Gionfriddo v. Avis Rent A Car System, Inc., supra, 289.

Section 14-154a has been liberally construed. A lessor of a motor vehicle has been held liable for injuries caused by the operation of the vehicle by the brother of the lessee, even if the lease agreement expressly excluded such liability. Fisher v. Hodge, 162 Conn. 363, 371, 294 A.2d 577 (1972). It has also been construed as permitting an award of treble damages. Gionfriddo v. Avis Rent A Car System, Inc., supra, 290. To date, however, no case has addressed the scope of the language “caused by the operation of such motor vehicle.”

The issue in the present case is whether the legislature intended § 14-154a to impose liability for any damage caused by the operator of a rented vehicle while operating it. There is no legislative history to use for guidance. In the absence of legislative history, we ordinarily look to general common law principles of proximate causation to guide our analysis. See Lamb v. Burns, 202 Conn. 158, 170-71, 520 A.2d 190 (1987). Proximate cause has been defined as a cause in fact that is a substantial factor in the resulting harm. Doe v. Manheimer, 212 Conn. 748, 757, 563 A.2d 699 (1989); Boehm v. Kish, 201 Conn. 385, 391, 517 A.2d 624 (1986). “In determining proximate cause, the point beyond which the law declines to trace a series of events that exist along a chain signifying actual causation is a matter of fair judgment and a rough sense of justice.” Boehm v. Kish, supra, 391-92, citing Palsgraf v. Long Island R.R. Co., 248 N.Y. 339, 352, 354-56, 162 N.E. 99 (1928) (Andrews, J., dissenting). In the present case, the identification of that point is difficult because the defendant’s potential liability is statutory and is not based on any negligence of the defendant. Here, therefore, the appropriate inquiry is whether the plain language of the statute imposes liability for the type of conduct that caused the plaintiff’s injuries. We conclude that it does not.

Ordinarily, the determination of proximate cause is a question of fact for the trier. Doe v. Manheimer, supra; Burns v. Gleason Plant Security, Inc., supra, 485. When the mind of a fair and reasonable person could reach only one conclusion, however, it becomes a question of law. Burns v. Gleason Plant Security, Inc., supra. If there is room for a reasonable disagreement, the question should be submitted to the trier of fact; Doe v. Manheimer, supra; and not determined by the court on a motion to strike. Reading the complaint in a manner most favorable to sustaining the plaintiff’s claims, we conclude that there is no room for disagreement on the question of proximate cause.

The complaint alleges that Jones operated the vehicle in an erratic manner at an excessive rate of speed, that he “caused it to overtake and to come alongside the vehicle being operated by the plaintiff,” and that he fired a revolver in the direction of the plaintiff’s vehicle. It further alleges that the plaintiff’s injuries occurred “[a]s a result of the foregoing conduct of Jones . . . while operating the rental vehicle . . . .” The complaint does not allege that the plaintiff’s particular injuries were caused by the speed of the car or the particular manner in which it was driven. Although the plaintiff argues vigorously on appeal that the distance that was maintained between the rental car and the plaintiff’s car was necessary to produce the injury, we cannot view the operation as anything more than a means of access to the plaintiff’s car and a means of escape. Although there is no question that the vehicle was in operation within the meaning of § 14-154a at the time of the shooting, the allegations do not support the conclusion that the operation of the motor vehicle was the proximate cause of the plaintiff’s injuries.

“A cause of action that is solely statutory in its derivation cannot be judicially expanded to encompass grievances for which the legislature has not seen fit to provide a remedy.” Cook v. Collins Chevrolet, Inc., 199 Conn. 245, 251-52, 506 A.2d 1035 (1986). The legislature may, if it chooses, amend the statute to impose liability for any damage caused by the operator while operating the rented vehicle. Thus far, however, it has chosen to require the operation itself to be the proximate cause of the injury.

We conclude that, on the basis of the language of the statute and the allegations in the plaintiff’s complaint, the trial court properly determined that the plaintiff failed to state a cause of action pursuant to § 14-154a.

The judgment is affirmed.

In this opinion the other judges concurred.

       The second count is not the subject of this appeal, the plaintiff having challenged the judgment as to the first count only.


text:
    Robert Lopiano v. City of Stamford et al.
    (8756)
    Spallone, Daly and O’Connell, Js.

      Argued June 4
    decision released August 14, 1990

      Harry B. Elliott, Jr., with whom, on the brief, was J. William Gagne, Jr., for the appellant (plaintiff).

      Richard A. Robinson, assistant corporation counsel, with whom, on the brief, were Mary E. Sommer, corporation counsel, and Robert A. Skovgaard, for the appellees (defendants).
   Spallone, J.

The plaintiff appeals from the judgment of the trial court dismissing his action for lack of subject matter jurisdiction. The plaintiff challenges the court’s ruling that he had failed to exhaust his administrative remedies, claiming that administrative remedies were either unavailable or futile. We disagree.

The plaintiff, a classified civil service employee of the Stamford police department, competed in a written examination for the post of police lieutenant. On the basis of his test score, he was among the five officers certified as eligible for the post. These candidates were then interviewed by members of the city police commission which by charter has the sole power of promotion. The commission selected candidate Douglas Baker for the promotion rather than the plaintiff.

In April, 1989, Lopiano filed a complaint against the city of Stamford, its director of personnel and the interviewing panel of five police commissioners. Baker was later added as a defendant on his own motion. The plaintiff alleged that the interview had been a de facto oral examination that failed to comply with the city’s classified service rules and the requirements of due process. Accordingly, he requested a judgment declaring that the oral examination was illegal and void, and requested a writ of mandamus ordering the defendants to administer a proper examination.

The defendants moved to dismiss the action, principally because the plaintiff failed to follow the established procedures for appealing examination results and because mandamus does not lie for discretionary acts. The defendants presented evidence that the relevant city rules require that an appeal concerning examination results be brought to the city’s personnel director. The court granted the motion to dismiss, ruling that it was without jurisdiction in a matter where the plaintiff had an administrative remedy.

On appeal, the plaintiff argues that the court should have heard his claim that the police commission conducted an arbitrary, capricious and illegal interview. He asserts that the city’s rules provide no procedures for reviewing the commission’s use of its discretionary interviewing and investigatory powers. He further argues that an appeal to the city’s personnel director would have been futile because this official could not compel the police commission to grant the relief sought.

We cannot determine whether the city rules provide an adequate remedy for challenging an illegal interview and, if so, whether the trial court properly found that the plaintiff failed to exhaust this remedy. The claim of an illegal interview was never presented to the court. The plaintiff’s complaint alleged that he had been subjected to an improper oral examination. This term appears numerous times in the complaint, the gravamen of which was that the administration of this examination failed to comply with the cited city rule specifying examination procedures. The defendants responded to the allegation of an illegal examination and argued the application of city rules concerning examination appeal procedures. The court determined only that the city rules specified a procedure for appealing examination results and that the plaintiff failed to follow this procedure. Neither the defendants nor the court had the opportunity to consider the procedures relevant to an appeal from a discretionary interview.

After his action for review of his examination results was dismissed, the plaintiff abandoned his charge of an illegal examination and, on appeal, changed his theory of the case. Absent plain error, issues raised for the first time on appeal will not be reviewed. Crozier v. Zaboori, 14 Conn. App. 457, 462, 541 A.2d 531 (1988). The plaintiff cannot on appeal present new theories or questions if proof might have been offered to refute them at trial. Ritcher v. Childers, 2 Conn. App. 315, 318, 478 A.2d 613 (1984). Our role on review is to decide whether the trial court’s decision is clearly erroneous in view of the evidence and pleadings in the record; Practice Book § 4061; and we must dispose of a case on the theory on which it was tried and decided. Housatonic Valley Publishing Co. v. Citytrust, 4 Conn. App. 12, 15, 492 A.2d 203 (1985). We thus limit our review to a determination of whether the court properly concluded that the plaintiff had an available administrative appeal from his examination results.

It is a well settled principle of administrative law that a party may not bring a matter to the Superior Court without first exhausting available administrative remedies. Silverman v. New Haven, 19 Conn. App. 360, 364, 562 A.2d 562, cert. denied, 212 Conn. 812, 565 A.2d 537 (1989). The exhaustion of remedies doctrine implicates subject matter jurisdiction; a case must be dismissed if an administrative avenue of redress remains untried. Id., 365; see also Pet v. Department of Health Services, 207 Conn. 346, 351, 542 A.2d 672 (1988); Cahill v. Board of Education, 198 Conn. 229, 238, 502 A.2d 410 (1985).

We agree with the court that the plaintiff failed to exhaust an available administrative remedy. The plaintiffs complaint alleged that the police commission’s oral examination violated rule 5.1 of the city’s classified service rules, the section concerning examination announcements for open competitive examinations. Rule 7.2 of the city rules concerns general appeals and provides in pertinent part that “[a] candidate may request the opportunity to review his/her examination results and file an appeal. All appeals relating to Rule 5 should be made in writing to the Personnel Director and filed within thirty (30) days of the notification date of the examination results.” (Emphasis added.) The plain unambiguous language of rule 7.2 provides the remedial procedure for redressing a violation of rule 5.

The plaintiff failed to follow this mandated procedure and offers no reasons why he should be excused. We cannot assume that recourse to that procedure would necessarily have been futile or inadequate, two recognized exceptions to the exhaustion doctrine. See, e.g., Doe v. Heintz, 204 Conn. 17, 36-37, 526 A.2d 1318 (1987); Griswold v. Union Labor Life Ins. Co., 186 Conn. 507, 519, 442 A.2d 920 (1982). The plaintiff should have followed the specified procedure for appealing his examination results to the personnel director. Had the claim of an illegal examination been properly before him, the personnel director might have agreed with the plaintiff and could have granted the relief requested. This action to the Superior Court would not then have been necessary.

The plaintiff unequivocally complained of the defendants’ failure to follow statutory procedures for administering an examination. There is no question that the plaintiff had an adequate remedy through the administrative appeal process and that he failed to pursue such procedure. The trial court, in dismissing the plaintiff’s complaint, acted appropriately and in accordance with applicable law.

The judgment is affirmed.

In this opinion the other judges concurred.


text:
    Katrinka C. Greger v. Gerald J. Greger
    (7868)
    Borden, O’Connell and Foti, Js.
    Argued April 10
    decision released August 14, 1990

      Anthony P. Bergin, with whom, on the brief, was Thomas K. McDonough, for the appellant (plaintiff).

      William J. Eddy, with whom, on the brief, was William J. Tracy, Jr., for the appellee (defendant).
   O’Connell, J.

The plaintiff appeals from the denial of her motion to open the judgment dissolving her marriage to the defendant. She claims that the court (1) should have found that the defendant had defrauded her, (2) analyzed the alleged fraud under an inappropriate legal standard, and (3) should have found that the plaintiff had exercised due diligence to protect her interests. We reverse the trial court’s judgment.

The following facts are dispositive of this appeal. In 1983, the parties agreed to terminate their twenty-three year marriage. Wanting to reach an amicable settlement and to avoid financially and emotionally debilitating litigation, they agreed that the plaintiff would select an attorney, and the defendant would cooperate by furnishing his personal financial information. In April, 1983, both parties filled out financial information sheets. At that time, the defendant disclosed that he had an interest in a small, closely held corporation engaged in the insurance business. He assured the plaintiff’s counsel, as he had assured the plaintiff throughout their marriage, that while the business furnished a salary and a place to work, its stock had no market value. The defendant provided financial records supporting this representation.

In July, 1983, the plaintiff’s counsel learned of a potential transaction involving the defendant’s business and arranged a meeting with the defendant to discuss it and to come to a final settlement of financial matters. During the meeting, the defendant described the pending transaction as a “merger” for which he was to receive stock and perhaps an interest-free loan. In reality, prior to the meeting, the defendant had agreed to sell his share of the business for $340,000, to be comprised of $100,000 cash, $170,000 in promissory notes and $70,000 in stock.

The defendant sold his business on August 1, 1983. He never disclosed to the plaintiff the $340,000, nor did he include any reference to it on the financial affidavit he executed and filed with the court on October 17, 1983. In fact, in listing his assets on the affidavit, the defendant described his interest in the business as “unvalued stock” and a question mark appeared in lieu of a valuation. The defendant thus managed to conceal 99.5 percent of his net worth. The parties’ financial affidavits formed the basis of their final settlement agreement and the subsequent orders of the court.

In 1987, the plaintiff discovered the defendant’s deception and sought to open the judgment. In denying her motion, the trial court properly recognized that fraud may be the basis of setting aside a judgment as long as (1) the movant is not guilty of laches or unreasonable delay after discovering the fraud, (2) the movant is diligent in attempting to discover and expose the fraud, (3) there is clear proof of the fraud, and (4) there is a substantial likelihood that the result of a new trial will be different. Jucker v. Jucker, 190 Conn. 674, 677, 461 A.2d 1384 (1983).

The trial court found that the plaintiff had proven fraud on the part of the defendant but had failed to exercise due diligence in uncovering it. Thus, she was barred from the relief she sought. See Jucker v. Jucker, supra; Varley v. Varley, 180 Conn. 1, 4, 428 A.2d 317 (1980); Grayson v. Grayson, 4 Conn. App. 275, 286, 494 A.2d 576 (1985), appeal dismissed, 202 Conn. 221, 520 A.2d 225 (1987).

Of paramount significance, however, is the court’s express finding that in concealing his assets, the defendant had perpetrated a fraud on the court. It concluded, however, that it could not “use the affront to the court years ago to support a favorable disposition for the plaintiff now, contrary to the requirements of law,” because Jucker and Varley, controlled the disposition of the case.

We likewise may not reexamine or reevaluate Supreme Court precedent. State v. Wilson, 17 Conn. App. 97, 98 n.1, 550 A.2d 21 (1988). Nor can we retry the case and make our own findings. Lupien v. Lupien, 192 Conn. 443, 445, 472 A.2d 18 (1984). Accordingly, we are bound by the trial court’s finding that the plaintiff did not act with diligence.

The trial court incorrectly concluded, however, that Jucker and Varley prevented it from opening the judgment, because those cases do not apply here. Once the court expressly found that the defendant had perpetrated a fraud on the court by concealing such a large percentage of his assets and that these assets would probably have affected the court’s financial orders, the law required that the judgment be opened. “The trial court in a dissolution of marriage action sits as a court of law and equity and it is incumbent upon the parties to disclose fully to the court all relevant information.” Baker v. Baker, 187 Conn. 315, 323, 445 A.2d 912 (1982). “A court is entitled to rely on the truth and accuracy of sworn statements required by [§ 463] of the Practice Book, and a misrepresentation of assets and income is a serious and intolerable dereliction on the part of the affiant which goes to the very heart of the judicial proceeding.” Casanova v. Casanova, 166 Conn. 304, 305, 348 A.2d 668 (1974).

The defendant’s conduct was a deliberate, fraudulent and egregious concealment of assets. The record clearly shows that, at the time he filed his affidavit, the defendant knew exactly how much he would be receiving from the sale of his business. If we allow such a deliberate and fraudulent statement of assets to go unchallenged, the role of the financial affidavit will be reduced to a meaningless formality, as will the court’s role in reviewing it. We will not permit such a result. When it became clear that the defendant had perpetrated a fraud on the court by filing a false or misleading financial affidavit, the court, “at the very least, should have ordered ... that the judgment be opened for the purpose of rehearing the financial and property issues.” Baker v. Baker, supra; Casanova v. Casanova, supra.

The judgment is reversed as to the financial and property disposition orders and a new trial is ordered on those issues.

In this opinion the other judges concurred.

       The defendant argues that the trial court found that the plaintiff had not proven fraud on his part. Our review of the record reveals otherwise. In an oral memorandum of decision, the court clearly found that the defendant had defrauded the plaintiff but that Jucker v. Jucker, 190 Conn. 624, 677, 461 A.2d 1384 (1983), and Varley v. Varley, 180 Conn. 1, 4, 494 A.2d 576 (1980), barred any relief. In a later articulation, the trial court appeared to change its mind and find that the plaintiff failed to prove fraud. This change, however, was improper. “An articulation is not an opportunity for a trial court to substitute a new decision nor to change the reasoning or basis of a prior decision.” Koper v. Koper, 17 Conn. App. 480, 484, 553 A.2d 1162 (1989). We are satisfied that the original memorandum represents the correct findings. See id.

       The plaintiff, relying on this court’s decision in Jackson v. Jackson, 2 Conn. App. 179, 195-96, 478 A.2d 1026, cert. denied, 194 Conn. 805, 478 A.2d 710 (1984), argues that the trial court’s finding of lack of due diligence is clearly erroneous. We have reviewed the record and are satisfied that this claim has no merit.

       The concealment of financial information from the trial court did not affect the dissolution judgment as to the irretrievable breakdown of the marriage. There is, therefore, no reason to disturb that part of the dissolution judgment.


author: Landau, J.

text:
    State of Connecticut v. Paul K. Edwards
    (8075)
    O’Connell, Norcott and Landau, Js.
    Argued May 7
    decision released August 14, 1990

      Barbara Sorrentino, assistant public defender, for the appellant (defendant).

      RitaM. Shair, deputy assistant state’s attorney, with whom were John Connelly, state’s attorney, and, on the brief, Marcia Smith and Karen Diebolt, assistant state’s attorneys, for the appellee (state).
   Landau, J.

The defendant appeals from the judgment of conviction following his guilty plea to sale of narcotics in violation of General Statutes § 21a-277 (a), possession of narcotics in violation of General Statutes § -2 la-279 (a), and hindering prosecution in the first degree in violation of General Statutes § 53a-166. The defendant claims that the trial court (1) failed to advise him of the consequences of his guilty plea, (2) should not have accepted his Alford plea to hindering prosecution as knowing, intelligent, and voluntary where the state’s asserted factual basis was inadequate to support such a plea, and (3) improperly determined that it did not have the authority to modify his sentence. We affirm in part and reverse in part.

On April 10, 1989, the defendant entered his pleas pursuant to a plea agreement between him and the state. As agreed, the court imposed a total effective sentence of eight years, and stayed execution of the sentence under the drug dependency statutes, General Statutes §§ 19a-387 (a) and 21a-285 (a). The court committed the defendant to the Connecticut Alcohol and Drug Abuse Commission (CADAC) for drug treatment at the Berkshire Woods Treatment Center plus five years probation. Four days later, the defendant was found unfit for treatment at that facility and was brought back before the court.

Upon his return to the court, the defendant sought an evaluation by the Whiting Forensic Institute pursuant to General Statutes § 17-244. The court, determining that the defendant violated the stay agreement by being brought back before the court, lifted the stay and denied his motion for evaluation. The court concluded that because the defendant was a sentenced prisoner, it no longer had the power to modify his sentence. The court then committed the defendant to the custody of the commissioner of correction in accordance with the original sentence.

I

Initially, the defendant requests this court to vacate his sentence and permit withdrawal of his guilty pleas contending that they were not entered knowingly, intelligently, and voluntarily because he was not advised of the consequences of his plea in violation of due process. Because this claim was not preserved in the trial court, it is reviewable only if it meets the requirements set forth in State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). The defendant’s claim is not supported by the record and thus fails to meet the first requirement.

Before he can enter a valid guilty plea, a defendant must be fully aware of the direct consequences of his plea. Brady v. United States, 397 U.S. 742, 748, 90 S. Ct. 1463, 25 L. Ed. 2d 747 (1970); Sherbo v. Manson, 21 Conn. App. 172, 181, 572 A.2d 378 (1990). To ensure compliance with this constitutional mandate, Practice Book § 711 requires that the trial court address the defendant personally and determine that he fully understands the nature of the charge against him. The court must also advise him of (1) the mandatory minimum sentence, (2) the maximum possible sentence, and (3) the fact that he has the right to plead not guilty, the right to be tried by jury, the right to confront and cross-examine witnesses, and the right against self-incrimination. The court must also ensure that the plea is voluntary and is not the result of force or threats. Practice Book § 712.

The scope of “direct consequences” is narrow and is limited to those consequences enumerated in Practice Book § 711. State v. Gilnite, 202 Conn. 369, 383, 521 A.2d 547 (1987); Sherbo v. Manson, supra. There is no requirement that the defendant be advised of every possible consequence of such a plea. State v. Gilnite, supra; Sherbo v. Manson, supra. A review of the record clearly indicates that the trial court followed the procedures set forth in Practice Book §§711 and 712.

II

The defendant’s final claim is that the trial court has the power to modify a sentence rendered pursuant to General Statutes § 19a-388 (c). We agree.

A trial court ordinarily does not have the power to modify a criminal sentence in excess of three years. State v. Lombardo, 19 Conn. App. 631, 636, 563 A.2d 1030 (1989); see also State v. Hanson, 210 Conn. 519, 556 A.2d 1007 (1989). Where, however, a defendant is committed for treatment pursuant to the drug dependency statutes, and is subsequently found unfit for treatment, he must under General Statutes § 19a-388 (c) be returned to the court “for such further proceedings as the court may deem appropriate.” (Emphasis added.) Under this provision, the court can conduct further proceedings to reassess the defendant’s sentencing alternatives. Moreover, the drug dependency statutes do not preclude a court from allowing further examination of an individual after sentencing. General Statutes § 19a-388 (c). Although the court may deny such a request; see State v. Gates, 198 Conn. 397, 405, 503 A.2d 163 (1986); it has jurisdiction to entertain a motion for reevaluation.

The judgment of conviction of hindering prosecution in the first degree in violation of General Statutes § 53a-166 is vacated and the case remanded with direction to dismiss that count. The sentences imposed for sale of narcotics in violation of General Statutes § 21a-277 (a) and possession of narcotics in violation of General Statutes § 21a-279 (a) are vacated, and the case is remanded for resentencing on those counts in accordance with this opinion.

In this opinion the other judges concurred.

       The state concedes that the defendant’s plea to hindering prosecution in the first degree should be vacated. We agree.

       General Statutes § 19a-387 (a) provides in pertinent part: “If the court by which a person has been convicted of a crime other than those arising under this ehapteror those specified in section 19a-390 finds that the convicted person is drug dependent and that his violation was for the primary purpose of sustaining his drug dependence or was because he was drug dependent, it may in addition to imposing the penalties provided for the crime of which he was convicted issue an order committing the convicted person to the executive director of the Connecticut alcohol and drug abuse commission for a period not less than ninety days nor more than twenty-four months and shall suspend execution of the sentence during the period of such commitment. If sentence has not been imposed, the court shall first proceed upon the conviction, impose sentence, order commitment to the executive director and suspend execution of such sentence during the period of such commitment.”
      General Statutes § 21a-285 (a) provides in pertinent part: “Notwithstanding any provision of this chapter to the contrary, if a court by which a person has been convicted of a violation of this chapter finds that the convicted person is drug dependent and that his violation was committed for the primary purpose of sustaining his drug dependence or because he was drug dependent it may, in addition to the penalties provided herein, issue an order committing such person to the executive director of the Connecticut alcohol and drug abuse commission for a period not to exceed twenty-four months. If sentence has not been imposed, the court shall first proceed upon the conviction, impose sentence, order commitment to the executive director and suspend execution of such sentence during the period of such commitment.”
      General Statutes §§ 19a-387 and 21a-285 have been repealed by Public Acts 1989, No. 89-390. This act, however, specifically excludes persons ordered to treatment under §§ 19a-387 or 21a-285 from its authority. Pursuant to General Statutes § 54-194, therefore, the repeal of these statutes shall have no effect upon these proceedings. See Simborski v. Wheeler, 121 Conn. 195, 199, 183 A. 688 (1936).

       General Statutes § 19a-388 (c) provides: “If the executive director finds at any time that any drug-dependent person committed to his custody pursuant to sections 21a-285 and 19a-387 is not a fit subject for treatment, he shall notify the committing court and cause such person to be returned for such further proceedings as the court may deem appropriate.” Section 19a-388 has been repealed by Public Acts 1989, No. 89-390. See footnote 2, supra.

       The specific provisions of § 19a-388 (c) take precedence over the general provisions of General Statutes § 53a-39 and Practice Book § 934. Healey v. Freedom of Information Commission, 18 Conn. App. 212, 217, 557 A.2d 561, cert. denied, 212 Conn. 803, 561 A.2d 945 (1989).


text:
    Lori Marino et al. v. Zoning Board of Appeals of the Town of Watertown
    (8888)
    Lavery, Cretella and Landau, Js.
    Argued June 13
    decision released August 14, 1990

      Franklin G. Pilicy, town attorney, for the appellant (defendant).

      Robert P. Hanahan, for the appellees (plaintiffs).
   Landau, J.

The defendant Watertown zoning board of appeals (board) appeals from the judgment of the trial court reversing its decision. That decision affirmed a ruling of the assistant zoning enforcement officer denying the plaintiffs’ application for a certificate of zoning compliance to establish the validity of certain nonconforming lots as approved building lots. The dis-positive issue is whether the trial court improperly substituted its judgment for that of the local zoning authority in finding that the lots had not merged. We reverse the trial court’s judgment.

Certain facts are not in dispute. The plaintiffs acquired a parcel of real estate in 1987 from the executrix of the estate of Mary liles. Hies, who had acquired the property in 1942, owned the parcel in 1955 when zoning regulations were first established in Watertown. The parcel, which is located near the intersection of Sunnyside Avenue and Shelter Hill Avenue, is identified as lots fourteen, fifteen and eighteen on a map entitled “Plan of Shelter Hill in the Village of Oakville, Watertown, Conn. 1909.” This map was filed in the Watertown land records in 1909. The deed received by the plaintiffs described the parcel with reference to those three lots as identified on the map.

Lots fourteen and fifteen are contiguous lots that front Sunnyside Avenue. Lot eighteen, which fronts Shelter Hill Avenue, abuts an entire side of lot fourteen and a portion of lot fifteen. Lot fourteen is improved with a house that was built in 1920. Lots fifteen and eighteen are unimproved. There is no access to lots fourteen and fifteen from Sunnyside Avenue because of the topography of the property. Access to the house is over a driveway constructed on lot eighteen that connects to Shelter Hill Avenue.

All three lots are located in an R-10 zone and each exceeded the minimum lot area requirement of 10,000 square feet. The assistant zoning enforcement officer denied the plaintiffs’ application for a certificate of zoning compliance, however, for the principal reason that the individual lots could not accommodate a seventy-five foot square, in violation of a Watertown zoning regulation. The plaintiffs appealed this ruling to the board. After the board affirmed the zoning officer’s decision without explanation, the plaintiffs brought an appeal pursuant to General Statutes § 8-8.

The trial court sustained the plaintiffs’ appeal and directed the board to grant the application for a certificate of zoning compliance with respect to lots fifteen and eighteen. The trial court found, inter alia, that the three lots composing the property had not merged into one parcel.

Once a local zoning authority has found or could have found, from the record before it, that there was a merger of lots, the trial court is “restricted to a determination of whether the board’s finding of merger was reasonably supported by the record and whether this was a pertinent basis on which to deny the plaintiff’s application.” Horn v. Zoning Board of Appeals, 18 Conn. App. 674, 677, 559 A.2d 1174 (1989). A trial court cannot disturb a zoning board’s factual finding of merger as long as that finding is the product of an honest judgment reasonably exercised. To do so would be an improper substitution of the trial court’s judgment for that of the board. Id., 676-77.

The record here reasonably supports a finding of merger. It is true that contiguous land owned by the same person does not necessarily constitute a single lot. Molic v. Zoning Board of Appeals, 18 Conn. App. 159, 164-65, 556 A.2d 1049 (1989). It is also true that the taxation of multiple parcels of land by the assessor’s office as one tract does not compel a finding of merger. Id. This does not mean, however, that such factors may not be considered by the board as part of the evidentiary foundation to support a finding of merger if they are relevant and probative. While the fact that lots are contiguous and owned by the same person does not mandate a finding of merger; see Molic v. Zoning Board of Appeals, supra; it is certainly a relevant factor. Further, the fact that the land was taxed as one parcel is relevant to a finding of merger in this case, where the record disclosed that the parcel in question had been taxed as one lot for the past fifty years.

Moreover, the record of the proceeding before the board discloses additional facts that would amply support a finding of merger. There was testimony that, in the early 1900s, most of the Oakville area of Water-town was divided into lots that would be substandard under today’s zoning regulations. Virtually all of the present-day deed descriptions contain multiple lot references to these various maps that were filed around the turn of this century, long before zoning regulations had been adopted. Just as the consolidated taxation of contiguous lots owned by a single person does not compel a finding of merger, the fact that a deed description references multiple lots from a map filed in the land records does not compel a finding of an absence of merger. We simply cannot accept the plaintiffs’ contention that a deed description established that they had the intent to own three separate lots. Such a conclusion conflicts with the basic proposition that in a determination of the factual issue of merger, the intent of the property owner must be ascertained and that no single factor is dispositive. See Molic v. Zoning Board of Appeals, supra, 164.

Finally, with regard to this particular parcel, the board heard testimony that the property was developed in 1920 as one tract and has been used in that manner since that time. Because of the topography of the property, one must use a driveway constructed on adjacent lot eighteen to reach the house on lot fourteen. Such an integrated and interdependent usage of the referenced lots belies any claim that there was no intent to merge.

We conclude that the trial court exceeded its scope of judicial review in finding there was no merger when the record reasonably supported such a finding. It had no authority to weigh the evidence for itself and determine the issues of fact involved. Horn v. Zoning Board of Appeals, supra, 677.

The judgment is reversed and the case is remanded with direction to render judgment dismissing the appeal.

In this opinion the other judges concurred.

       The defendant also claims that the trial court misconstrued the pertinent Watertown zoning regulations in concluding that the three lots were valid nonconforming lots. Merger can occur by operation of law; that is, a town’s zoning regulations may mandate merger of adjacent lots that are commonly owned. See Neumann v. Zoning Board, of Appeals, 14 Conn. App. 55, 539 A.2d 614, cert. denied, 208 Conn. 806, 545 A.2d 1103 (1988). In this case, because the record before the board was sufficient to support a finding of an intent to merge, we need not reach the issue of whether merger was compelled under Watertown’s zoning regulations.