text:
    Daniel J. Poprosky et al. v. Jeremiah Shea et al.
    (7579)
    Daly, Norcott and Foti, Js.
    Argued December 13, 1989
    decision released May 1, 1990

      John D. Boland, for the appellants (plaintiffs).

      Michael P. Carey, for the appellees (named defendant et al.).

      Hugh I. Manke, for the appellees (defendant Edward Greenwold et al.).
   Foti, J.

The plaintiffs in this quo warranto action appeal from the trial court’s judgment in favor of the defendants. The plaintiffs claim that the trial court erred (1) in failing to find that the reform ordinance was not an illegal recall, (2) in basing its decision on another trial court decision, and (3) in finding that the restructuring ordinance was saved by permissible goals. We find no error.

The plaintiffs, five former members of the Lisbon planning and zoning commission, brought this quo warranto action challenging the right of the defendants to hold office as planning and zoning commission members. The plaintiffs were removed from office on January 16,1987, when the town adopted a new ordinance, passed by a voter referendum, that restructured and revised the planning and zoning commission.

The plaintiffs contend that this ordinance was an illegal recall petition under Connecticut law, and assert that the underlying motive or purpose of the ordinance was. to remove improperly the plaintiffs from office because they were opposed to the construction and operation of a trash-to-energy facility in Lisbon. The defendants are the new members of the commission who were appointed after the adoption of the ordinance. The plaintiffs contend that the defendants continue to exercise the rights, powers and privileges of the planning and zoning commission unlawfully, and to the exclusion of the plaintiffs.

In this action, the plaintiffs sought an order requiring the defendants to answer by what warrant they claim to hold their positions and exercise the rights, power and privileges of the planning and zoning commission. The trial court concluded that the ordinance did not constitute a recall and that the defendants had met their burden by showing complete title to the offices in dispute.

The plaintiffs first claim on appeal that the trial court erred in refusing to characterize the effect of the 1987 ordinance as a recall prohibited by Connecticut law.

The facts relevant to this claim are as follows. In an earlier, separate action brought by citizens of the town of Lisbon, the plaintiffs in that action sought a writ of mandamus requiring that the defendants, who were members of the board of selectmen, consider the proposed restructuring ordinance. Busch v. Prokop, Superior Court, judicial district of New London at Norwich, Docket No. 086861 (December 12, 1988). The Busch court ordered the board of selectmen to meet and call or warn that a special meeting was to be held on a proposed ordinance that would reform the planning and zoning commission. At the special town meeting, held on January 5,1987, no action was taken regarding the proposed ordinance because a signed petition was presented requesting that the town meeting be rescheduled so that a voter referendum could be held on the proposed ordinance. The voter referendum was held on January 16,1987. The ballots cast passed the ordinance with 759 voting in favor of the ordinance and 614 voting against it. Notice of adoption of the ordinance was given by publication and all new members of the planning and zoning commission and their alternates were sworn in on February 4, 1987. To satisfy the court’s mandate in Busch, the special meeting on the ordinance was then rescheduled and held.

No appeal was filed in that matter. The parties to that action chose instead to wait until the voter referendum was held adopting the ordinance. The plaintiffs in the present case concede that the 1987 ordinance was adopted according to lawful procedure. They argue here only that the underlying motive or purpose of the ordinance was improper.

A recall is a procedure where an elected official may be removed at any time during his term of office by a vote of the people at an election called for such purpose by a specified number of citizens.

Over a century ago our Supreme Court held that a recall is illegal where “an act of the legislature repeals by its terms a certain section of the General Statutes and abolishes a board of officers appointed under it, and the same act creates precisely the same board and clothes them with the same powers and duties enumerated in the section repealed. ” (Emphasis added.) State ex rel. Birdsey v. Baldwin, 45 Conn. 134, 144 (1877).

In the present case, there was no illegal recall of the plaintiffs from their positions on the planning and zoning commission. Although the 1987 ordinance consequently removed the plaintiffs from office, it did more than clothe the board members with the same powers and duties as the 1962 ordinance. Specifically, the 1987 ordinance completely revised and restructured the planning and zoning commission as it was set up under the 1962 ordinance. A review of the record shows that the 1987 ordinance provides for alternates and minority representation, whereas the 1962 ordinance provided for neither. The six year term has been changed to a four year term of office thereby subjecting members to a more frequent voter scrutiny. Although both ordinances allowed for vacancies to be filled by the Lisbon planning and zoning commission, the 1987 ordinance mandates that the first selectman fill any vacancy if the commission fails to act within thirty days. The revised ordinance provides for a public hearing on removal of members for cause, and makes absenteeism just cause for removal. The older ordinance was silent on these issues. The reform ordinance mandates disqualification if a conflict is present, permits division into a planning section and a zoning section, and requires a vote on updating of the town plan every five years, whereas the 1962 ordinance was silent on these points as well. Further, the maximum number of members from one political party is now set at five, and two for alternates, whereas the older ordinance was silent as to political affiliation. The 1987 ordinance also provides for other substantive provisions not covered in the older ordinance dealing with the method of selection of officers, the authority for calling meetings and the use of alternates.

“Municipalities, because they are creations of the state, have no inherent legislative authority. . . . They can wield only those powers expressly granted to them by the legislature ... or necessary to the exercise of an expressly delegated power.” (Citations omitted.) Simons v. Canty, 195 Conn. 524, 529-30, 488 A.2d 1267 (1985).

The Connecticut legislature expressly empowered municipalities to establish and regulate the structure of planning and zoning commissions with the enactment of General Statutes § 8-1. This section provides in part that “[t]he number of such members and the method of selection and removal for cause and terms of office shall be determined by ordinance . . . .’’Our Supreme Court has held that “[w]hen enacting or amending its regulations, a local zoning authority acts in a legislative capacity. It must therefore be free to modify its regulations whenever time, experience and responsible planning for contemporary or future conditions reasonably indicate the need for change.” Malafronte v. Planning & Zoning Board, 155 Conn. 205, 208-209, 230 A.2d 606 (1967).

Clearly the town of Lisbon was acting within its designated authority when it restructured its planning and zoning commission. Although the plaintiffs argue that the defendants’ actions were directed by the improper motive of removing those' board members who had voted for the controversial trash-to-energy plant, “[w]e are not to presume an improper motive. If the ordinance can be supported as a legitimate exercise by the . . . [town of Lisbon] of its authority to make and repeal ordinances with respect to . . . [the planning and zoning commission] and to [the commission’s] proper regulation ... it is our duty to give it such a construction as will make it operative and consistent with the [empowering statute].” State ex rel. Rylands v. Pinkerman, 63 Conn. 176, 195, 28 A. 110 (1893).

The evidence presented to the court supports the conclusion that the 1987 ordinance created numerous substantial changes in the form and function of the planning and zoning commission of the town of Lisbon. The structure, duties, terms and procedures were changed thereby giving full support to the conclusion of the court that the 1987 ordinance did not constitute a recall. The factual determinations of the court are not clearly erroneous.

The plaintiffs next claim that the trial court erred in considering and relying on the decision in Busch v. Prokop, supra, implicitly according that decision res judicata or collateral estoppel effect. We do not agree.

The Busch court concluded that the 1987 ordinance was lawful and that its enactment was within the town’s power. Further, that court found that no evidence was presented to support the claim that the ordinance was in fact an attempt at recall.

It is clear that the decision in Busch was part of the record herein. The memorandum of decision was admitted as a full, joint exhibit filed by both the plaintiffs and the defendants. Although it was cited by the court in this action in its memorandum of decision, the trial court herein did not give the Busch decision res judicata or collateral estoppel effect. As previously discussed, the present decision was based on findings sufficient in the record. The issues in Busch dealt with the validity of the subject matter of the ordinance and the procedures used prior to the mandamus action. The case before us deals with the aftermath of the voter referendum that adopted the ordinance. The trial court was justified in relying on that case, as it did, if it saw fit to do so. The trial court agreed with the Busch decision but clearly made its own findings on the issue before it, that is, whether the reform ordinance constituted a recall. The plaintiffs were given full opportunity to litigate their claim in this action. The trial court barred no evidence and made no finding on any issue on the basis that it had been precluded by the Busch decision.

The plaintiffs’ last claim is that the trial court erred in ruling that the ordinance was saved by its permissible goals. The plaintiffs argue that if one provision of the 1987 ordinance is invalid, the court should have declared the entire ordinance invalid, rather than allow the valid portions to cure that one invalid section.

We note that this argument was never raised at trial. The court determined the validity of the 1987 ordinance and found that it did not constitute a recall, which is what the court was asked to do. There is no finding of an invalid section or part of the ordinance by the court, nor does the court’s memorandum of decision mention any illegality. Absent such a finding, we decline to address this claim of error.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 52-491 provides: “When any person or corporation usurps the exercise of any office, franchise or jurisdiction, the superior court may proceed, on a complaint in the nature of a quo warranto, to punish such person or corporation for such usurpation, according to the course of the common law ¿nd may proceed therein and render judgment according to the course of the common law.”

       The application that a voter referendum be taken on the 1987 ordinance was filed by more than the “20 inhabitants qualified to vote in town meetings” as required under General Statutes § 7-1.

       The court in Busch v. Prokop, Superior Court, judicial district of New London at Norwich, Docket No. 086861 (December 12,1988), noted: “The defendant introduced witnesses and testimony in an attempt to claim that the request for the passage of the ordinance in question was, in fact, an attempt at recall. The Court does not find that to be the case. Recall is a specific action which requires specifically the naming of the individual or office holder to be recalled and in this particular instance there was no evidence presented to the court that the composition or makeup of the new planning and zoning commission would be any different from the planning and zoning commission that exists today; and therefore, there is no evidence to substantiate defendant’s claim that any member will be removed. In addition, the plaintiffs merely seek to have the legislative body act as has been previously stated in accordance with the power given to it by the legislature.”

       Prior to oral arguments, the defendants filed a motion to dismiss the appeal for mootness. We have denied that motion after allowing the parties full argument.


source: Caselaw Access Project

author: Barnett, J.

license: Public Domain

text:
    Charles McCarthy, Jr. v. City of Bridgeport
    (7885)
    Dupont, C. J., Spallone and Barnett, Js.
    Argued November 14, 1989
    decision released May 1, 1990

      Benson A. Snaider, for the appellant (plaintiff).

      John F. Fallon, with whom, on the brief, were Jay S. Kogan and Barbara J. O’Brien, for the appellee (defendant).
   Barnett, J.

This appeal arises from proceedings involving the condemnation of real estate. The plaintiff appeals from the judgment and order of a committee of state referees that reduced by $120,000 the amount of compensation the defendant owed as a result of a taking by eminent domain. The plaintiff raises two issues on appeal. One is that the committee failed to submit a detailed report to the Superior Court. The second is that the committee lacked jurisdiction to reduce the assessment of compensation. A third issue, although not separately claimed, is whether the committee was authorized to add interest, at the statutory rate, to the amount that the plaintiff was required to return because of the reduction in the assessment of compensation.

On September 9, 1987, the Bridgeport Economic Development Corporation acquired through eminent domain, as the condemning authority for the city, a parcel of land at 280-284 Fairfield Avenue and a second parcel at 286-288 Fairfield Avenue for a public project known as the Fairfield Avenue Development Project. The defendant submitted a statement of compensation to the Superior Court, appraising the combined worth of the parcels at $475,000. Pursuant to General Statutes § 8-130, the defendant deposited $475,000 with the clerk of the Superior Court for the use of the plaintiff, and the plaintiff withdrew the money on deposit. On September 18, 1987, however, the plaintiff applied to the Superior Court for a review of the statement of compensation pursuant to General Statutes § 8-132. Then on March 16, 1988, the plaintiff moved that the matter be referred, pursuant to General Statutes § 52-434a (b), to a committee of three state referees.

On August 17,1988, the committee issued a memorandum of decision, ruling that the value of the two parcels was $355,000, and that the plaintiff had been overpaid in the amount of $120,000. The committee ordered the plaintiff to repay to the city the amount of $120,000, plus 10 percent interest to accrue “from the date of the withdrawal of the money to the date of the repayment of the overage.”

On November 17,1988, the plaintiff filed in the Superior Court a motion to open and vacate the judgment of the committee. The motion was denied on February 17,1989. The plaintiff filed this appeal on March 9, 1989.

I

The plaintiff claims that he was deprived of his property without due process under the law, in violation of the fifth and fourteenth amendments to the constitution of the United States, because the committee rendered judgment in the case, instead of submitting to the Superior Court a report meeting the requirements of Practice Book § 434. According to the plaintiff, General Statutes § 8-132 embodies a legislative mandate that such a report be submitted. The plaintiffs position is that the function of the committee was limited to the submission of a factfinding report for the Superior Court to accept or reject. In short, the plaintiffs due process argument is grounded on the supposition that only the Superior Court, and not the committee, had the power to render a judgment in the case.

One requirement of due process is a tribunal with proper jurisdiction to render judgment. See Marshall v. Clark, 170 Conn. 199, 205, 365 A.2d 1202 (1976). We disagree, however, with the plaintiffs contention that his right to due process was violated because the committee lacked jurisdiction to decide this case. Under the law, as explained below, the committee consisting of state trial referees had the same powers as judges of the Superior Court. Transportion Plaza Associates v. Powers, 203 Conn. 364, 369, 526 A.2d 68 (1987). Among these powers is the ability to render judgment through a memorandum of decision. Practice Book § 4059.

The committee’s power to render judgment derives from the fact that the committee consisted of three retired Superior Court judges, all of whom have been designated as state trial referees by the Chief Justice pursuant to General Statutes § 52-434 (a). The constitution of Connecticut, article fifth, § 6, as amended, and General Statutes § 52-434 (a) make all retired Superior Court judges eligible for appointment as state referees. From among the eligible retired judges, appointments are made by the Chief Justice of the Supreme Court to the position of trial referee. General Statutes § 52-434 (a). Retired judges so appointed have been referred to as state constitutional referees. Seal Audio, Inc. v. Bozak, Inc., 199 Conn. 496, 499 n.1, 508 A.2d 415 (1986).

In any case referred to a state constitutional referee, article fifth, § 6, as amended, and General Statutes §§ 52-434a (a) and 52-434b (a) authorize the referee to exercise all the powers of the referring court. A similar authorization is contained in Practice Book § 430. Three referees were required for the committee in this case because of the value placed on the property by the defendant. General Statutes § 52-434a (b) provides in part: “In condemnation proceedings in which the assessment fixed by the condemning authority exceeds the sum of two hundred thousand dollars the court may, at the request of either party, or on its own motion, refer the proceedings to the chief court administrator for referral to a committee of three such referees who, sitting together, shall hear and decide the matter.”

The plaintiff is mistaken in his belief that General Statutes § 8-132 limited the committee in the present case to factfinding or that a report was required of the committee by Practice Book § 434. There is no conflict between § 8-132 and the sections that define the powers of a state constitutional referee. General Statutes § 52-434a (c) provides that the powers given to such referee, whether acting singly or as part of a committee, may be exercised notwithstanding contrary provisions of any general or special law. Moreover, in McDermott v. New Haven Redevelopment Agency, 184 Conn. 444, 446-47, 440 A.2d 168 (1981), the Supreme Court stated that the more formal requirements, established by Practice Book § 434 for reports in cases referred to committees, are not applicable when the reference is to a trial referee pursuant to Practice Book § 430. We, therefore, conclude that the committee did not err in rendering judgment through a memorandum of decision that satisfied the requirements of Practice Book § 4059. McDermott v. New Haven Redevelopment Agency, supra.

II

The plaintiffs second claim is that the committee lacked jurisdiction to reduce the assessment of damages below the $475,000 deposited by the defendant. Part of this claim is based on the plaintiffs mistaken belief that the committee was limited to factfinding and that subsequent proceedings with respect to the judgment were to be determined by the Superior Court. See Practice Book §§ 442, 443.

Aside from what has already been said about the proper role of the committee, the plaintiff is also in error as to the function of a referee operating under the strictures of General Statutes § 8-132. The statute empowers the referee, after receiving evidence, to “revise such statement of compensation in such manner as he deems proper.” The statutory language both permits and requires the referee to increase, decrease or leave unchanged the condemnor’s assessment of damages as he finds proper from the law and evidence. Research Associates, Inc. v. New Haven Redevelopment Agency, 152 Conn. 137, 141, 204 A.2d 833 (1964); see Transportation Plaza Associates v. Powers, supra, 369-70.

Ill

Remaining is the third issue, whether the committee was authorized to add interest to the $120,000 that it ordered the plaintiff to repay. The committee ordered that interest of 10 percent should run from the date of the withdrawal of the money deposited to the date of the repayment of the overage. Thus, the committee’s order encompasses a repayment of prejudgment as well as postjudgment interest. The committee acting as a court had authority to award postjudgment interest at the legal rate. General Statutes § 37-3a; see Gionfriddo v. Avis Rent A Car System, Inc., 192 Conn. 301, 308, 472 A.2d 316 (1984).

The sum of $120,000 became an obligation that the plaintiff had to repay as of the date of entry of the committee’s judgment. We find, however, that the committee’s award of prejudgment interest cannot stand.

Whether a condemnee should pay prejudgment interest when the final award is less than the amount deposited is a question of first impression in Connecticut. The issue has been considered in other jurisdictions, albeit rarely, over the years. We believe that the apparent majority view that the condemnee should not be responsible for prejudgment interest is the better rule. St. Louis, Keokuk & Northwestern R. Co. v. Knapp-Stout & Co., 160 Mo. 396, 407, 61 S.W. 300 (1901); State v. Pia Star Realty Co., 118 N.J. Super. 55, 64, 285 A.2d 581 (1971); Matter of New York Elevated R. Co., 51 N.Y. 117, 118, 8 N.Y. St. Rep. 431 (1887); Davidson v. County of Harris, 454 S.W.2d 830, 833 (Tex. App. 1970).

Our agreement with the cited authorities is predicated upon several considerations. General Statutes § 37-3c provides for the recovery of interest by the condemnee, from the date of taking to the date of payment, on any sum awarded in excess of the amount deposited by the condemnor. There is no comparable provision authorizing the recovery of interest by the condemnor where the amount of the award is less than the deposit. The absence of such a statute has been construed as indicating a legislative intent that interest should not be added to the amount that the condemnee is required to return. State v. Pia Star Realty Co., supra, 61. In Connecticut, the allowance of prejudgment interest as an element of damages is an equitable determination to be made by the court. Before awarding interest, however, the court must decide if money has been wrongfully detained. West Haven Sound Development Corporation v. West Haven, 207 Conn. 308, 321, 541 A.2d 858 (1988). The real question is whether, under the circumstances, there was a wrongful detention. Cedo Bros., Inc. v. Feldmann, 161 Conn. 265, 275, 287 A.2d 374 (1971). In the present case, the plaintiff did not owe the defendant anything until the committee issued its judgment.

The situation is not affected by the fact that the plaintiff withdrew the deposit. The withdrawal was statutorily permitted. General Statutes § 8-130. The right to take property by eminent domain is an extraordinary power. The defendant was compelled to deposit its money pending a decision on the amount to be paid, because General Statutes § 8-130 required it to do so. The subsequent judgment reducing the assessment of damages below the deposited amount should not be transmuted into a default on the part of the plaintiff. See St. Louis, Keokuk & Northwestern R. Co. v. Knapp-Stout & Co., supra.

There is error only in the committee’s award of prejudgment interest to the defendant, the judgment is set aside and the case is remanded with direction to render judgment as on file except as modified by this opinion.

In this opinion the other judges concurred.

       The defendant claimed that the plaintiff’s appeal was untimely because it was not filed within twenty days from the issuance of the committee’s memorandum of decision. Practice Book § 4009. The defendant, however, did not file a motion to dismiss and, therefore, the defect of untimeliness is deemed to have been waived. Cardoza v. Zoning Commission, 211 Conn. 78, 81 n.4, 557 A.2d 545 (1987); Giordano Construction Co. v. Ross, 182 Conn. 577, 579, 438 A.2d 772 (1980); LaReau v. Reincke, 158 Conn. 486, 493, 264 A.2d 576 (1969).

       Practice Book § 434 provides that reports of committees to the Superior Court shall state “in separate and consecutively numbered paragraphs, the facts found and the conclusions drawn therefrom.”

       General Statutes § 8-132 provides in part that a state referee shall submit a report to the Superior Court containing “a detailed statement of findings by the referee, sufficient to enable the court to determine the considerations upon which the referee based his conclusions.”

       Article fifth, § 6, as amended by article eighth, § 2, of the amendments to the constitution of Connecticut, reads as follows: “No judge shall be eligible to hold his office after he shall arrive at the age of seventy years, except that a chief justice or judge of the supreme court, a judge of the superior court, or a judge of the court of common pleas, who has attained the age of seventy years and has become a state referee may exercise, as shall be prescribed by law, the powers of the superior court or court of common pleas on matters referred to him as a state referee.”


author: Foti, J.

text:
    Edward Denike Tree Company v. Raymond E. Butler et al.
    (8093)
    Spallone, Foti and Lavery, Js.

      Argued February 28
    decision released May 1, 1990

      Warren P. Joblin, for the appellants (defendants).

      Alan R. Spirer, for the appellee (plaintiff).
   Foti, J.

This action arises out of the plaintiffs claim for the balance due on a promissory note, together with interest and reasonable attorney’s fees. The defendants have appealed from the judgment of the trial court which added interest to the judgment pursuant to General Statutes § 52-192a. We find no error.

The promissory note was dated April 28,1982, in the original principal amount of $82,559. The note provided for annual interest in the amount of 12 percent and reasonable attorney’s fees in the event the promissor defaulted on the note. At the time of trial the principal balance due was $48,909 together with unpaid interest from June 1, 1983.

On February 5, 1985, the plaintiff filed an “offer of judgment” in the amount of $48,000. The offer, which was filed within eighteen months of the filing of the complaint, was not accepted by the defendants. On February 8,1989, a judgment in the amount of $92,583.94 was rendered in favor of the plaintiff based on a jury verdict received and accepted on January 20,1989. The defendants did not request that interrogatories be submitted to the jury for the purpose of determining how the jury arrived at this amount. The defendants did not move to set aside the verdict and have not appealed that judgment.

After judgment was rendered, the court granted the plaintiff’s motion for interest on its offer of judgment pursuant to General Statutes § 52-192a and awarded interest at the rate of 12 percent per annum from February 14, 1984, the date the plaintiff’s complaint was filed, to February 8,1989, the date that judgment was rendered. The court’s interest award was in the amount of $55,364.65, bringing the total amount awarded to the plaintiff to $147,948.59.

The defendants have appealed from that order and claim that the trial court erred in its award of interest because the total damages awarded by the jury do not specifically distinguish a separate amount for principal due on the note, interest accrued on the note, and reasonable attorney’s fees. It is the defendants’ assertion that the court cannot add interest on a promissory note that already provides interest. We do not agree.

The court, by modification of judgment, awarded additional interest pursuant to General Statutes § 52-192a (b). This award is punitive in nature and authorized by legislation enacted to promote fair and reasonable compromise of litigation without trial. Crowther v. Gerber Garment Technology, Inc., 8 Conn. App. 254, 267, 513 A.2d 144 (1986). Interest awarded pursuant to § 52-192a (b) may apply to a judgment that includes attorney’s fees and interest. Id; see also Gionfriddo v. Avis Rent A Car System, Inc., 192 Conn. 280, 472 A.2d 306 (1984) (Gionfriddo I), and Gionfriddo v. Avis Rent A Car System, Inc., 192 Conn. 301, 472 A.2d 316 (1984) (Gionfriddo II).

The plain language of § 52-192a (b) specifies that “the court shall add to the amount so recovered twelve per cent annual interest on said amount . . . .” This court has stated in the past that “ ‘[wjhere the legislative intent is clear and unambiguous, there is no need for statutory construction or a review of the legislative history. . . . The legislature is supreme in the area of legislation, and courts must apply statutory enactments according to their plain terms.’ ” Lee v. Tufveson, 6 Conn. App. 301, 304, 505 A.2d 18, cert. denied, 199 Conn. 806, 508 A.2d 31 (1986), quoting Federal Aviation Administration v. Administrator, 196 Conn. 546, 550-51, 494 A.2d 564 (1985).

There is no error.

In this opinion the other judges concurred.

       “[General Statutes] Section 52-192a. offer of judgment by plaintiff. ACCEPTANCE BY DEFENDANT. COMPUTATION OF INTEREST, (a) After commencement of any civil action based upon contract or for the recovery of money only, the plaintiff may before trial file with the clerk of the court a written ‘offer of judgment’ signed by him or his attorney, directed to the defendant or his attorney, offering to settle the claim underlying the action and to stipulate to a judgment for a sum certain. The plaintiff shall give notice of the offer of settlement to the defendant’s attorney, or if the defendant is not represented by an attorney, to the defendant himself. Within thirty days after being notified of the filing of the ‘offer of judgment,’ the defendant or his attorney may file with the clerk of the court a written ‘acceptance of offer of judgment’ agreeing to a stipulation for judgment as contained in plaintiff’s ‘offer of judgment.’ Upon such filing, the clerk shall enter judgment immediately on the stipulation. If the ‘offer of judgment’ is not accepted within thirty days, the ‘offer of judgment’ shall be considered rejected and not subject to acceptance unless refiled. Any such ‘offer of judgment’ and any ‘acceptance of offer of judgment’ shall be included by the clerk in the record of the case.
      “(b) After trial the court shall examine the record to determine whether the plaintiff made an ‘offer of judgment’ which the defendant failed to accept. If the court ascertains from the record that the plaintiff has recovered an amount equal to or greater than the sum certain stated in his ‘offer of judgment,’ the court shall add to the amount so recovered twelve per cent annual interest on said amount, computed from the date such offer was filed in actions commenced before October 1, 1981. In those actions commenced on or after October 1,1981, the interest shall be computed from the date the complaint in the civil action was filed with the court if the ‘offer of judgment’ was filed not later than eighteen months from the filing of such complaint. If such offer was filed later than eighteen months from the date of filing of the complaint, the interest shall be computed from the date the ‘offer of judgment’ was filed. The court may award reasonable attorney’s fees in an amount not to exceed three hundred fifty dollars, and shall render judgment accordingly. This section shall not be interpreted to abrogate the contractual rights of any party concerning the recovery of attorney’s fees in accordance with the provisions of any written contract between the parties to the action.”


author: Borden, J.

text:
    R. B. Kent & Son, Inc. v. Planning Commission of the Town of Ledyard et al. Richard C. Hall et al. v. Planning Commission of the Town of Ledyard et al. Donna Worst et al. v. Planning Commission of the Town of Ledyard et al.
    (7769)
    (7777)
    Borden, O’Connell and Foti, Js.

      Argued January 17
    decision released May 1, 1990

      Thomas B. Wilson, town attorney, for the appellantappellee (named defendant).

      Peter S. Gianacoplos, for the appellants-appellees (defendant Harry L. Morgan et al.).

      Frank N. Eppinger, with whom, on the brief, was Mark W. Oberlatz, for the appellee (plaintiff in the first case).

      James T. Havilandll, for the appellees (plaintiffs in the third case).

      Francis J. Pavetti, with whom, on the brief, was George C. Heck, for the appellees-appellants (plaintiffs in the second case).
   Borden, J.

This is a combined appeal by the defendants from the judgments of the trial court sustaining the zoning appeal of the plaintiffs. That appeal challenged the approval by the named defendant, the Ledyard planning commission (commission), of a resubdivision application filed by the defendant applicant, Harry L. Morgan. The defendants claim that the trial court erred in concluding (1) that the drainage plan of the proposed resubdivision did not comply with the town’s drainage ordinance, and (2) that the proposed resubdivision plan did not comply with the flood control provisions of the town’s subdivision regulations. We find error.

Certain facts are undisputed. Morgan filed an application with the commission for approval of a resubdivision plan for an approximately thirty-five acre parcel of land in Ledyard. After more than nine hours of public hearings, the commission granted the application, subject to certain conditions not relevant to this appeal, and issued a lengthy and detailed written statement of its findings and the reasons for its action.

The plaintiffs appealed to the trial court. The court, sustaining their appeal, concluded (1) that the plan did not comply with § 5-3A of the town subdivision regulations and § 4 of the town’s drainage ordinance, and (2) that the plan did not comply with §§3-1, 5-3 and 4-4 of the subdivision regulations regarding flood control measures. The court, however, rejected the plaintiffs’ claim that the published notices regarding the hearing were inadequate. Upon the granting of certification, this appeal followed.

I

The defendants first claim that the court erred in concluding that the resubdivision plan did not comply with the subdivision regulation and drainage ordinance regarding storm water runoff. We agree.

It is axiomatic that a planning commission, in passing on a resubdivision application, acts in an administrative capacity and is limited to determining whether the plan complies with the applicable regulations. Reed v. Planning & Zoning Commission, 208 Conn. 431, 433, 544 A.2d 1213 (1988); Westport v. Norwalk, 167 Conn. 151, 155, 355 A.2d 25 (1974); Gagnon v. Municipal Planning Commission, 10 Conn. App. 54, 57, 521 A.2d 589, cert. denied, 203 Conn. 807, 525 A.2d 521 (1987). It is equally axiomatic that the trial court, in reviewing the action of a planning commission regarding a resubdivision application, may not substitute its judgment on the facts for that of the planning commission. Oakwood Development Corporation v. Zoning Board of Appeals, 20 Conn. App. 458, 460, 567 A.2d 1260 (1990). The conclusions of the commission must stand if even one of the stated reasons is reasonably supported by the record. Id., 460-61.

Section 5-3A of the town’s subdivision regulations provides in pertinent part: “All drainage control measures shall be provided in accordance with the requirements of the Town of Ledyard Drainage Ordinance, where applicable . . . Section 4 of the drainage ordinance provides in pertinent part: “For all development regulated by this ordinance, a stormwater drainage system shall be designed so that the rate of runoff flow leaving the property for which the development is proposed shall not exceed or be substantially lower than the rate of storm water runoff which occurred prior to development.” This ordinance mandates that the rate of storm water runoff from the property, that is, the runoff measured in cubic feet per second, must not exceed the rate of runoff occurring prior to development. It does not address the increase in the amount of storm water runoff occurring as a result of the proposed development.

The commission found that, although the amount of storm water runoff would increase as the result of the proposed resubdivision, because of the design of the plan’s storm water management system the rate of runoff would not increase. The commission found that the plan complied with the drainage ordinance. There was ample evidence in the record to support its finding, including a letter from the town’s public works director, and testimony from both an independent engineering firm associated with the town engineer and from Morgan’s engineer.

The trial court found, and the plaintiffs argue on appeal, in response to the defendants’ claim, that the commission’s findings were flawed because of certain calculations of storm water runoff from a detention pond that was part of the storm water management system. We disagree. The commission received into evidence an exhibit presenting the results of a computer simulation in which 240 separate calculations based on various weather scenarios were used to determine the estimated runoff rates before and after the proposed development. Of these 240 calculations, only four indicated a minor increase in the runoff rate after development. On the basis of that evidence, the commission found that “the release rate from the detention pond very slightly exceeds the calculated release rate prior to development, but the Commission feels that the difference is within the tolerance for accuracy in the engineering calculations.” This evidence and the commission’s findings based thereon do not support the plaintiffs’ argument.

The commission found that the higher release rate was within engineering accuracy tolerance. There was evidence to support that interpretation of the calculations. Thus, the commission justifiably viewed those four arguably unacceptable calculations as consistent with the other 236 acceptable calculations. This evidence, therefore, cannot be considered to vitiate the other substantial evidence relied on by the commission to find that the proposed subdivision would not increase the runoff rate from the property to be developed. At most, the four calculations in question can be said to present a “debatable [question] of fact which [was] within the commission’s province to resolve.” Westport v. Norwalk, supra, 161.

II

The defendants next claim that the court erred in concluding that the resubdivision plan did not comply with §§ 3-1, 5-3 and 4-4 of the subdivision regulations regarding flood control measures. We agree.

Section 3-1 provides in pertinent part: “Land of such character that it cannot be used safely for building purposes because of . . . aggravation of flood . . . hazard . . . shall not be plotted for human occupancy until appropriate measures have been taken by the sub-divider to "eliminate such hazards.” Section 5-3A provides in pertinent part: “No subdivision shall be laid out in a manner which will obstruct or prevent the efficient drainage of the land or surrounding lands or cause flooding in downstream areas. Drainage easements shall be required where necessary.” Section 4-4 provides in pertinent part: “The Commission shall require that any proposed subdivision is designed consistent with the need to minimize flood damage. When a subdivision is proposed for land subject to flooding, the Commission shall require written confirmation from the Building Official that utilities, water and sanitary sewer systems are located or designed so as to minimize or eliminate flood damage or infiltration. Adequate drainage systems shall be provided to reduce exposure to flood hazards.”

These regulations, read together, implicitly recognize that a proposed development may create some additional water runoff, and that a balance must be struck between development and the need to maintain flood control. Under these regulations, the commission is required to evaluate the likely flood effects, if any, of a proposed subdivision by reaching factual conclusions concerning whether appropriate measures for protective flood control have been taken, whether the subdivision design is consistent with the need to minimize flood damage, whether any safety risk due to aggravation of flood hazard has been eliminated, and whether the subdivision plan has minimized the risk of flood damage or infiltration.

In this case, the commission made several specific findings in arriving at these factual conclusions. With respect to the plaintiffs Donna Worst, Victor Worst and R. B. Kent & Son, Inc., it found that in the event of exceptional storms their lands would be flooded irrespective of the proposed development. With regard to the plaintiff Richard C. Hall, it found that the flooding on his property would not be substantially increased. The commission also found that an additional volume of water runoff from the resubdivision, “released at a controlled rate, will prolong the time of peak flooding for a very minimal and mathematically insignificant period of time,” that the resubdivision “complied with all town subdivision regulations and ordinances designed to minimize the impact of storm-water runoff on downstream properties,” and that the subdivision “will not cause any substantial damage downstream.” Here, where the record amply supports these findings, the court may not substitute its judgment for that of the commission. See Oakwood Development Corporation v. Zoning Board of Appeals, supra, 460.

Ill

We now turn to the alternate ground to affirm the judgment of the trial court raised by the plaintiffs Richard C. Hall and David C. Hall; see footnote 3, supra; namely, that the prehearing and postapproval published notices were invalid. The Halls do not claim that the published notices were too general. Rather, they claim that the notices were misleading in their specificity, and thus were legally inadequate under the authority of Welles v. East Windsor, 185 Conn. 556, 441 A.2d 174 (1981).

The basis of the Halls’ claim is that a storm water diffuser, which is part of the storm water drainage system, was to be located on an open space outside of, but immediately adjacent to, the parcel to be subdivided. That lot was part of a previously approved subdivision known as “Section B-2A.” The 35.4212 acre area that was the subject of the present resubdivision application was known as “Section B-3R.” In essence, the Halls’ argument is that the prehearing notice limited the commission’s authority to Section B-3R, that neither the prehearing nor the postapproval notice referred to Section B-2A, and that, therefore, the commission was without authority to consider that part of the subdivision plan involving the storm water diffuser located in Section B-2A. This argument is without merit.

Adequate statutory prehearing notice is a jurisdictional prerequisite to a resubdivision hearing. Cocivi v. Plan & Zoning Commission, 20 Conn. App. 705, 707, 570 A.2d 226 (1990). Adequate posthearing notice is mandatory. Akin v. Norwalk, 163 Conn. 68, 301 A.2d 258 (1972). The purpose of the statutory public prehearing notice is fairly and sufficiently to apprise the public of the proposed action, so as to enable intelligent preparation for participation in the hearing. Cocivi v. Plan & Zoning Commission, supra, 708. Although the notice may not be misleading, it need not be exact; id.; and a public filing of the plan is relevant to the determination of the adequacy of the notice. Shrobar v. Jensen, 158 Conn. 202, 207-208, 257 A.2d 806 (1969); Passero v. Zoning Commission, 155 Conn. 511, 514-15, 235 A.2d 660, cert. denied, 390 U.S. 1004, 88 S. Ct. 1248, 20 L. Ed. 2d 104 (1967). The purposes of the statutory postapproval publication are to give notice to interested parties of the decision and to commence the start of the appeal period. Akin v. Norwalk, supra, 73. Gauged by these principles, both notices were adequate in this case.

The particular parcel in this case, Section B-3R, which was part of a large subdivision that was being developed in sections by resubdivision, was bounded on the north by Section B-2A. Both Section B-3R and Section B-2A are bounded by Eagle Ridge Drive. The prehearing notice described the property involved in the application as “a proposed 30 lot subdivision of approximately 35.42 acres of land at the southern end of Eagle Ridge Drive and Partridge Hollow Road . . . .” It stated that “a copy of the proposed plan and related application materials is on file in the Planning Office, Town Hall.”

The postapproval notice was even more specific. It stated that the commission had “approved Subdivision Application # 252 Pheasant Run, Section B-3R Resubdivision,” and that the “approved resubdivision is located at the south end of Eagle Ridge Drive and Partridge Hollow Road and includes 28 building lots, open space, roads and related storm drainage. A copy of the approved plan is on file in the Planning Office, Town Hall

These notices adequately apprised the public of the location of the property involved in the resubdivision application, and gave adequate notice to interested parties of the commission’s decision. Although the prehearing notice did not refer specifically either to Section B-3R or Section B-2A, it properly described the general area and approximate size of the proposed resubdivision, and the reference to the plan and related materials on file was adequate to permit any member of the public to determine more precisely the specific parcels involved. Thus, it cannot reasonably be said that one would have been misled into believing that Section B-2A was not involved in any way.

Welles v. East Windsor, supra, on which the plaintiffs rely, is distinguishable. In Welles, unlike the present case, the notice for a town meeting to consider a proposed town health and safety complex was limited to a particular location, and no site plan was available or referenced. Id., 558. After the town approved the location of the complex in accordance with the published notice, the town decided to locate it approximately 500 feet from the originally approved location, such that it fronted on a different street from that stated in the notice. No such egregious facts are present here.

On the appeals to this court, there is error, the judgments are set aside, and the cases are remanded with direction to render judgments dismissing the appeals.

The cross appeal is dismissed.

In this opinion the other judges concurred.

       The defendants are the named defendant, Harry L. Morgan and Christy Hill Builders, Inc.

       The plaintiffs are R. B. Kent & Son, Inc./RVE Properties, Richard C. Hall, David C. Hall, Donna Worst, Victor Worst and Aqua Sports, Inc.

       The plaintiffs Richard C. Hall and David C. Hall also have cross appealed, raising two claims of error by the court: (1) the published notices of the resubdivision hearing were inadequate; and (2) the commission should have required Morgan to obtain certain drainage easements. The record discloses, however, that no certification to cross appeal was sought or granted. Thus, the cross appeal must be dismissed, because certification by this court in a zoning case is a jurisdictional requirement for either an appeal or a cross appeal. See General Statutes § 8-28; Ingersoll v. Planning & Zoning Commission, 194 Conn. 277, 278, 479 A.2d 1207 (1984). We consider, nonetheless, the Halls’ claim regarding the notices of the resubdivision hearing, not as a ground of a cross appeal, but as an alternate ground on which the judgment of the court may be sustained. See Practice Book § 4013 (a) (1). In view of our conclusions on the defendants’ claim of error, however, we need not consider the Halls’ claims regarding the necessity for drainage easements.

       Morgan argues that the computer calculations involved projected water release rates from the detention pond, and thus did not indicate “the rate of runoff flow leaving the property for which the development is proposed,” as required by § 4 of the drainage ordinance. At first blush, this argument has some appeal because the detention pond was to be located, not on the property to be resubdivided, but immediately adjacent thereto on an open space lot of another previously approved subdivision. It is clear, however, that because the detention pond was an integral part of the storm water management system, the commission reasonably considered it as falling within the purpose of the drainage ordinance. We do likewise.


author: Dupont, C. J.

text:
    Joan Williams, Trustee (Ruth Armstrong Family Trust) v. Charles Breyer
    (7925)
    Dupont, C. J., O’Connell and La very, Js.
    Argued December 5, 1989
    decision released May 1, 1990

      Kerin Margaret Woods, with whom, on the brief, was Thomas W. Boyce, Jr., for the appellant (defendant).

      Paul M. Geraghty, with whom, on the brief, was Jacques J. Parentau, for the appellee (plaintiff).
   Dupont, C. J.

The defendant appeals from the trial court’s granting of the plaintiff’s motion for summary judgment. The dispositive issue on appeal is whether the court applied the proper measure of damages.

The relevant facts are undisputed. The plaintiff owns a parcel of developed commercial real estate adjacent to a parcel of unimproved property owned by the defendant. The plaintiff’s property is encumbered by a long-term lease due to expire in the year 2020. On January 21, 1987, the parties entered into a written agreement for the sale to the defendant of “a right-of-way for all purposes of ingress and egress and access” to a particular roadway over the plaintiff’s property. The contract did not contain a liquidated damages clause.

At the same time that the contract was executed, the defendant was involved in negotiations with the Marriott Corporation for the sale of his property. The acquisition of the right-of-way over the plaintiff’s property was a condition of the proposed sale, and the defendant testified at a deposition that this condition was his sole reason for entering into the agreement with the plaintiff. The contract between the plaintiff and the defendant did not, however, expressly condition the defendant’s performance of this contract on the sale of his property to the Marriott Corporation.

The contract price for the easement was $125,000, of which $12,500 was paid by the defendant at the time the contract was signed. The contract provided that the balance of the price would be due “upon the earliest to occur of: (1) Recording of the right of way, (2) The consummation of the sale or lease of [the defendant’s] said property to Marriott or its nominee or, (3) The expiration of six months from date of this Agreement.”

The defendant did not sell his property to the Marriott Corporation as contemplated and never tendered the balance of the purchase price to the plaintiff. The plaintiff thereafter brought this action against the defendant, alleging that six months had elapsed since the date of the agreement and that the defendant owed and had failed to pay the balance due under the contract. The complaint sought “[m]oney damages sufficient to compensate [the plaintiff] for her loss” and interest thereon pursuant to General Statutes § 37-3a.

In his answer, the defendant raised the special defense of failure of consideration, and counterclaimed for the return of his deposit, alleging that the contract was unenforceable and that the plaintiff had failed to grant him a right-of-way free and clear of encumbrances. The plaintiff moved for summary judgment. In his opposition to the plaintiffs motion, the defendant abandoned his defenses, conceded that he was in breach of a valid contract and that he was liable to the plaintiff. He argued, however, that a genuine issue of material fact existed as to the amount of damages to which the plaintiff was entitled. The trial court granted the plaintiffs motion for summary judgment and ordered the defendant to pay the plaintiff $112,500 with interest of 10 percent from July 1, 1987, finding that the contract clearly stated the amount of damages.

The defendant argues that the court applied an improper measure of damages that resulted in a windfall to the plaintiff. The court’s judgment, he argues, gives the plaintiff the full contract price even though she has not conveyed or been directed to convey the right-of-way. The plaintiff argues that the contract price is the proper measure of damages because the defendant has already received the full benefit of his bargain and the plaintiff has already fully performed her obligations under the contract.

If the plaintiff had fulfilled her obligations under the contract, then the trial court’s award of the full contract price would be correct. After the seller of an interest in land has conveyed that interest to the buyer and all that remains is for the buyer to pay the price, a judgment for money damages in the amount of the contract price is the proper remedy. 2 Restatement (Second), Contracts § 360, comment (e); see Hydro-Hercules Corporation v. Gary Excavating, Inc., 166 Conn. 647, 654-55, 353 A.2d 714 (1974) (where the plaintiff performs according to the contract, the unpaid contract price is due). In the case of a bilateral executory agreement, however, an award of the full contract price would unjustly enrich the seller and penalize the buyer.

The first issue to be resolved, then, is whether the contract is executory, or whether the plaintiff has fully performed, making payment of the contract price the only remaining duty. The language of the contract provides an appropriate basis for review of this issue. The contract provides: “The [plaintiff] grants to [the defendant] a right-of-way . . . over the [plaintiff’s] property.” (Emphasis added). While this language appears to contemplate a present conveyance of the right-of-way, both parties agree that the document itself is insufficient to convey an interest in land because it lacks several required formalities. Instead, the plaintiff argues that the agreement gave the defendant the present right to demand, at any time, a recordable document conveying the easement and that it was this right for which the defendant bargained.

Common sense and the contract language refute this argument. Although the unfortunate use of the word “grants” in the contract does not conform to the customary language of purchase and sale agreements, it is clear from a reading of the contract as a whole that the parties contemplated an exchange of money for a valid, recordable right-of-way. To construe the contract as the plaintiff suggests would lead to an unfair result. After paying the full contract price pursuant to the judgment of the trial court, the buyer would then be required to demand a deed from the seller. If the seller refused to convey, the buyer would then have to sue the seller under the same contract in a separate action. The contract language also does not support the plaintiffs interpretation. Nothing in the contract indicates that the buyer was bargaining for the right to demand a conveyance in the future. We conclude that the agreement is an executory, bilateral contract.

“The general rule in breach of contract cases is that the award of damages is designed to place the injured party, so far as can be done by money, in the same position as that which he would have been in had the contract been performed.” Beckman v. Jalich Homes, Inc., 190 Conn. 299, 309, 460 A.2d 488 (1983). This rule is designed to compensate the injured party for the loss of the bargain. The standard measure of damages for breach of a contract for sale is the difference between the contract price and the market value of the property at the time of the breach; Loda v. H. K. Sargeant & Associates, Inc., 188 Conn. 69, 82, 448 A.2d 812 (1982); Makusevich v. Gotta, 107 Conn. 207, 210, 139 A.2d 780 (1927); reduced by the amount of any deposits made by the buyer toward the purchase price. See Vines v. Orchard Hills, Inc., 181 Conn. 501, 510, 435 A.2d 1022 (1980).

The plaintiff contends that this measure of damages is not appropriate in the present case. She asserts that the right-of-way does not have any value to anyone other than the defendant, and, therefore, a determination of the market value of that property interest is not reasonably ascertainable. We disagree.

There is no reason not to employ the standard measure of damages in this case. While it may be impossible to prove damages with mathematical certainty, the parties can nevertheless provide sufficient evidence for the trier to make a fair and reasonable estimate. Spera v. Audiotape Corporation, 1 Conn. App. 629, 633, 474 A.2d 481 (1984). It is for the trial court to select the method of valuation most appropriate to determine the fair market value. D'Addario v. Commissioner of Transportation, 180 Conn. 355, 365, 429 A.2d 890 (1980). This process necessarily involves the taking of evidence and factual findings by the court.

Because the defendant conceded that he breached the contract, there is no genuine issue of material fact as to liability and the court properly rendered summary judgment on that issue for the plaintiff. Practice Book § 384. We conclude, however, that the court applied the incorrect measure of damages. Because a triable issue remains as to the amount of damages that should be awarded, summary judgment should not have been rendered on that issue. Practice Book § 385.

There is error in part, the granting of summary judgment in favor of the plaintiff on the issue of liability is affirmed, the award of damages is set aside, and this case is remanded for further proceedings consistent with this opinion on the issue of damages only.

In this opinion the other judges concurred.

       The court failed to rule on the defendant’s counterclaim. Because the defendant abandoned all defenses to the contract, however, it is clear that, had judgment been rendered on the counterclaim, it would have been rendered in favor of the plaintiff. Martin v. Martin’s News Service, Inc., 9 Conn. App. 304, 306 n. 2, 518 A.2d 951 (1986), cert. denied, 202 Conn. 807, 520 A.2d 1287 (1987). We find, therefore, that the defendant’s independent claim for the full refund of his deposit has been concluded; see id.; and that he is entitled to a return of only the amount, if any, by which the deposit exceeds a final award of damages.

       We note that the plaintiff also could have sought specific performance of the contract; 2 Restatement (Second), Contracts § 360, comment (e), illustration 12; but chose to forego that option.


text:
    State of Connecticut v. Edward T. Lynch
    (7739)
    Dupont, C. J., Spallone and Lavery, Js.
    Argued January 12
    decision released May 1, 1990

      Wesley W. Horton, with whom were Jeffrey A. Hoberman and M. Hatcher Norris, for the appellant (defendant).

      Susan C. Marks, assistant state’s attorney, with whom, on the brief, were Harry Weller and John Malone, assistant state’s attorneys, for the appellee (state).
   Dupont, C. J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of criminal attempt to commit larceny in the first degree by extortion in violation of General Statutes §§ 53a-49 and 53a-122 (a) (1), and conspiracy to commit larceny by extortion in violation of General Statutes §§ 53a-48 and 53a-122 (a) (l). He and a codefendant, Paul Fox, were tried together. The defendant challenges the admission into evidence of an out-of-court statement made by Fox, and the sufficiency of the evidence for his conviction of both criminal charges.

The facts in this case revolve around a partially abandoned mill property in the town of Enfield. In 1980, the property was purchased by Martin Levitz, a real estate developer. In 1981, after making several improvements to the property, Levitz offered the property for sale by way of open listing agreements with several real estate agencies. The defendant, the president of a real estate and appraisal company, did not have a listing for the property. Prior to the Levitz purchase, however, he had appraised the property, and, on one occasion, had introduced Levitz to a potential buyer.

In March, 1981, James Wood, a real estate agent who had an open listing agreement with Levitz, was contacted by Mario Mozzillo, a potential buyer who was interested in making an offer on the property. Prior to submitting that offer to Levitz, Wood met with Fox, the director of planning for Enfield, and another Enfield town official to discuss the town’s view on rezoning the mill for residential and retail use. As director of planning, Fox acted as liaison with the planning and zoning commission, reviewed applications pending before the commission, prepared reports on those applications, and set the agenda for the commission’s meetings. Wood, on behalf of Mozzillo, subsequently submitted an offer to buy the property to Levitz, who rejected the offer. In May, 1981, Wood made another offer on behalf of Mozzillo that also was rejected. Throughout this period, Wood continued to communicate with both Fox and Levitz about the possible sale.

On July 2, 1982, Mozzillo asked Wood to make another offer on the property. On that same day, Fox called Wood, learned of the proposed offer, and asked Wood to attend a meeting at the defendant’s office that afternoon. All prior meetings of Wood and Fox concerning the property had taken place in the Enfield town offices, and the defendant had never been included. Fox also contacted Levitz and requested his presence at the meeting. Fox stated that the purpose of the meeting was to discuss a potential buyer of the mill property. The meeting was held as planned in the defendant’s office. Present were Fox, Wood, Levitz, the defendant and the defendant’s son-in-law, who worked for the defendant’s company.

At trial, both Levitz and Wood testified that Fox essentially ran the meeting and that most of his comments were directed to Wood. At the meeting, Fox reviewed the negotiations over the possible sale and rezoning of the mill, emphasizing his role in those negotiations. Wood testified that Fox told him that “the only way that you’re going to get this transaction through town planning and zoning in Enfield, is to cobroke this commission with Ed Lynch. And Ed Lynch, in turn, will take care of me.” Levitz corroborated Wood’s testimony as to this statement. Wood testified that the defendant said something after Fox’s statement, but he could not remember what it was. Levitz testified that the defendant stated that “there would be nothing that would be expected if the course of the deal didn’t go through.” No evidence was offered that the defendant made any other statements at the meeting.

The proposed purchase of the property by Mozzillo never materialized. In the fall of 1982, Fox left his position with the town of Enfield and went to work for the defendant’s company. Prior to the July meeting, Fox had told Wood that he intended to work for Lynch. In November, 1985, Wood contacted the state’s attorney’s office about the events of July 2, 1982.

The defendant first claims that the trial court erred in failing to make an independent, preliminary determination as to whether the state had proven a prima facie case of conspiracy prior to admitting into evidence Fox’s out-of-court statement against the defendant. He argues that the court improperly allowed the jury to make the determination. He further asserts that the court, had it made the determination, could not have found sufficient evidence of a conspiracy without the statement, and, therefore, would have excluded the statement from evidence. The state essentially concedes that the court erred in failing to make the preliminary determination, but argues that the defendant’s claim is not reviewable because it was not properly preserved at trial. The state also claims that even if we choose to review the defendant’s claim, the court’s error is harmless because Fox’s out-of-court statement could have been admitted on a variety of other grounds.

The defendant did not object to the admission of Fox’s statement at trial in the same manner that he now asserts on appeal. Prior to trial, the defendant filed a motion in limine seeking a limiting instruction to the jury that Fox’s out-of-court statement should be considered against the defendant only if the jury were to find that the state had established the defendant’s participation in a conspiracy without the statement. The court indicated that it was inclined to postpone any limiting instruction until it gave the jury charge, but added that the defendant could raise the issue of a limiting instruction at any appropriate time during trial, and that the court would rule on it then. The defendant did not object or request a limiting instruction during the testimony of Levitz and Wood concerning Fox’s statement.

At the close of the state’s case, the defendant moved for a judgment of acquittal on all counts of the information, arguing that Fox’s statement was inadmissible against him because, without it, the state had not proved a prima facie case of conspiracy, and that, without the statement, there was insufficient evidence for a finding of guilty. The court denied the motion, and the defendant rested his case, waiving all rights to cross-examine Fox or Fox’s witnesses or to challenge evidence presented in Fox’s defense. Prior to the commencement of Fox’s defense, the jury was instructed not to consider any evidence offered by Fox against the defendant. In its charge to the jury at the close of all the evidence, the court instructed in relevant part: “[A]ny evidence of a statement made by one alleged conspirator, other than at the trial, shall not be considered by you as against another alleged conspirator, unless you first determine from other independent evidence, that at the time the statement was made, a conspiracy to commit a crime existed.”

Although the defendant made no objection to the charge, he claims that his motion in limine and motion for judgment of acquittal sufficiently preserved his claim that Fox’s statement was inadmissible against him. Alternatively, he contends that this court should exercise its discretion and review his claim under the plain error doctrine. Practice Book § 4185.

The trial court misstated the law when it instructed the jury that the jury had the duty to determine whether the state had proven a prima facie case of conspiracy independent of the coconspirator’s statement. Before out-of-court statements of a coconspirator can be admitted into evidence, a trial court must make a preliminary determination, by a fair preponderance of the evidence, that there is sufficient independent evidence of a conspiracy still in existence at the time of the declaration, and that the declaration was made in furtherance of the conspiracy in which both coconspirators were participants. State v. Vessichio, 197 Conn. 644, 654, 500 A.2d 1311 (1985), cert. denied, 475 U.S. 1122, 106 S. Ct. 1642, 90 L. Ed. 2d 187 (1986); see also Cooke v. Weed, 90 Conn. 544, 548, 97 A. 765 (1916). The court’s submission of this question to the jury amounted to plain error. See State v. Luca, 19 Conn. App. 668, 672, 563 A.2d 752 (1989).

We must, therefore, review the evidence, excluding Fox’s statement, in terms of its sufficiency to sustain a determination by the court, by a fair preponderance of the evidence, of the existence of a conspiracy. See State v. Vessichio, supra, 655-56. Our review is conducted without regard to the credibility of the witnesses. State v. Robinson, 213 Conn. 243, 256, 567 A.2d 1173 (1989).

“To establish the crime of conspiracy under § 53a-48 of the General Statutes, the state must show that there was an agreement between two or more persons to engage in conduct constituting a crime and that the agreement was followed by an overt act in furtherance of the conspiracy by any one of the conspirators.” State v. Vessichio, supra, 656; State v. DeMatteo, 186 Conn. 696, 707, 443 A.2d 915 (1982); State v. Smith, 15 Conn. App. 122, 125, 543 A.2d 301 (1988). “The existence of a formal agreement between the parties need not be proved; it is sufficient to show that they are ‘knowingly engaged in a mutual plan to do a forbidden act.’ State v. Holmes, 160 Conn. 140, 149, 274 A.2d 153 [1970].” State v. Ortiz, 169 Conn. 642, 645, 363 A.2d 1091 (1975); State v. Smith, supra. Because of the secret nature of conspiracies, a conviction is usually based on circumstantial evidence. State v. Vessichio, supra, 656; State v. Smith, supra, 126. Mere presence at the scene of the crime, even when coupled with knowledge of the crime, is insufficient to establish guilt of a conspiracy. State v. Stellato, 10 Conn. App. 447, 454, 523 A.2d 1345 (1987).

The state cites certain evidence as establishing the existence of a conspiracy, including the defendant’s association with Fox and the fact that the defendant was present at a meeting called by Fox that took place in the defendant’s office. Prior meetings had taken place in the Enfield town offices and the defendant had not attended. The defendant had no open listing with Levitz and no involvement as a real estate agent with the property at the time of the meeting.

These facts do not amount to criminal activity or to an agreement to engage in criminal activity followed by an overt act in furtherance of the conspiracy. We conclude from our review of the transcripts and the other evidence that the trial court could not have found sufficient evidence, without Fox’s statement, to establish the existence of a conspiracy by a fair preponderance of the evidence, and that, therefore, the statement was not admissible under the coconspirator exception to the hearsay rule. See United States v. Alvarez, 584 F.2d 694, 701 (5th Cir. 1978).

The state argues that Fox’s statement was admissible on other grounds. This court is not prevented from sustaining the ruling of a trial court on a basis other than that used. State v. John, 210 Conn. 652, 679-80, 557 A.2d 93, cert. denied, U.S. , 110 S. Ct. 84, 107 L. Ed. 2d 50 (1989). The defendant properly points out that in order for this court to conclude that it would have been error not to admit the statement on these alternate grounds, we must also conclude that the trial court would have been required to admit it. In other words, we must hold that the failure to admit the statement would have been an abuse of discretion, or that no discretion existed.

The state claims that Fox’s statement could have been admitted as a statement against penal interest, as an adoptive admission or as a verbal act. Adoptive admissions, statements against penal interest and statements of a coconspirator have a commonality beyond the fact that they are all admissible as exceptions to the hearsay rule. Connecticut cases often discuss admissibility of statements under any or all of these doctrines within the confines of the same case, regardless of whether the defendant in a particular case has been charged with a conspiracy to commit a crime. See State v. John, supra; State v. Pelletier, 209 Conn. 564, 522 A.2d 805 (1989); State v. Spencer, 198 Conn. 506, 512 n.2, 503 A.2d 1165 (1986); State v. Vessichio, supra, 660.

In State v. DeFreitas, 179 Conn. 431, 451-52, 426 A.2d 799 (1980), a rule was adopted to allow the admission into evidence of third party statements against interest in accord with Rule 804 (b) (3) of the Federal Rules of Evidence. That rule defines a third party statement against interest as “a statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject him to civil or criminal liability, or to render invalid a claim by him against another, that a reasonable man in his position would not have made the statement unless he believed it to be true.” A statement against penal interest tends to expose the declarant to criminal liability. It is usually offered to exculpate the accused and is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement. Fed. R. Evid. 804 (b) (3).

All but one of the Connecticut cases that give effect to the rule involve the attempt by a criminal defendant to introduce a statement inculpating the declarant and exculpating the defendant. See, e.g., State v. Bryant, 202 Conn. 676, 523 A.2d 451 (1987); State v. DeFreitas, supra. In those cases, the courts, concerned about the dangers of collusion and fabrication, required the proponent of an exculpatory statement to produce evidence of the trustworthiness of the statement before admitting it into evidence and required the declarant to be unavailable. Fed. R. Evid. 804 (b) (3); State v. Bryant, supra, 692-94; State v. DeFreitas, supra, 450-51. The factors to be considered in determining whether the statement is admissible are the time of the declaration, to whom it was made, the existence of corroborating evidence, the extent to which it is against penal interest, and the unavailability of the declarant as a witness. State v. DeFreitas, supra, 451.

Here, we are faced not with a statement that inculpates the declarant and exculpates the defendant but with a statement of a codefendant that inculpates both the declarant and the defendant. This was also true in the case of State v. Boyd, 214 Conn. 132, 570 A.2d 1125 (1990). In Boyd, our Supreme Court held that a written statement of a codefendant should not have been admitted as a third party statement against penal interest when the statement was made while the declarant was in police custody and inculpated both the defendant and the declarant. The ruling rests on the court’s conclusion that a statement made by a declarant while in custody lacks trustworthiness because the declarant may have had a motive to falsify, such as a desire to alleviate his own culpability by implicating the defendant or a desire for revenge against a codefendant. In the cases cited and relied upon in Boyd, the declarant was in custody or already charged with a crime involving the defendant when the statement was made. See, e.g., United States v. Alvarez, supra.

Our analysis indicates that Boyd does not create a blanket rule of inadmissibility of all declarations against penal interest when they are inculpatory as to both the declarant and the defendant. Instead, based upon the traditional analysis of trustworthiness, such statements are inadmissible when made after the crime is complete and when made in a custodial environment to a custodian such as a law enforcement officer. The statement in Boyd lacked trustworthiness because the declarant was in custody at the time and because there was no corroborating evidence to support it. Furthermore, the statement was made after the crime was complete, rather than in the throes of its commission, further undermining its trustworthiness. We conclude that a dual inculpatory statement against penal interest is admissible if, by a fair preponderance of the evidence, the circumstances under which it was made confirm its trustworthiness. United States v. Katsougrakis, 715 F.2d 769 (2d Cir. 1983), cert. denied, 464 U.S. 1040, 104 S. Ct. 704, 79 L. Ed. 2d 169 (1984).

The statement at issue here clearly tended to subject Fox to criminal liability to the extent that a reasonable man in his position would not have made the statement unless he believed it to be true. Indeed, the defendant does not dispute that the statement was against penal interest or that Fox was aware of its incriminating nature. Instead, he argues that Fox was not unavailable as a third party declarant.

A requirement for admitting third party declarations against penal interest is the unavailability of the declarant’s testimony. State v. Bryant, supra, 694; State v. Frye, 182 Conn. 476, 480-81, 438 A.2d 735 (1980). Connecticut has adopted the definition of unavailability set forth in Rule 804 (a) of the Federal Rules of Evidence, the relevant portion of which includes situations where the declarant “is exempted by ruling of the court on ground of privilege from testifying concerning the subject matter of his statement.” Fed. R. Evid. 804 (a) (1); State v. Bryant, supra, 694. A declarant may be physically present in court but his testimony may be unavailable because of testimonial privilege. State v. DeFreitas, supra, 441.

In United States v. Lieberman, 637 F.2d 95 (2d Cir. 1980), the court was faced with determining the availability of a declarant in a situation factually similar to the present case. In Lieberman, the defendant and the declarant were codefendants in the same conspiracy trial, and the contested statement inculpated both of them. The court found that the declarant was unavailable to testify under Rule 804 (a) (1) because “[h]e was a defendant, and the government could not call him as a witness.” Id., 103.

In the present case, the declarant was also a codefendant. Nonetheless, the defendant argues that the declarant was not unavailable within the meaning of Rule 804 (a) (1). The defendant asserts that Fox was never exempted from testifying by a court ruling, as required by the rule, because he was never called as a witness by the state in its case-in-chief, and, consequently, never asserted his privilege. While this argument is technically correct, it ignores the fact that a criminal defendant’s privilege against self-incrimination is much broader than the privilege of one who is simply a witness. “Basically, the right of an accused is the right not only to avoid giving incriminating responses to inquiries put to him but also to be free from the inquiries themselves. Thus the privilege of an accused allows him not only to refuse to respond to questions directed at his alleged participation in the offense but also entitles him not even to be called as a witness at his own trial.” C. McCormick, Evidence (3d Ed.) § 130.

The state presented evidence against both the defendant and Fox in its case-in-chief. The defendant rested without introducing any evidence and specifically and explicitly waived any right he might have had to cross-examine Fox. Fox then presented his defense and testified in his own behalf. Although Fox waived his testimonial privilege by testifying in his own defense, he could not have been called as a witness or compelled to testify by the state or by the defendant. See State v. Robinson, supra.

A determination of unavailability is normally a question of fact within the trial court’s discretion. Here, however, no facts are contested and the unavailability of Fox is a question of law. We conclude that Fox was . functionally unavailable, although physically present, and that Fox’s statement was reliable and was against his penal interest. The trial court, therefore, had it considered the issue, would have abused its discretion if it failed to admit Fox’s statement as a statement against penal interest.

Although we hold that Fox’s statement would have been admissible as a statement against penal interest, we also conclude that it would have been admissible as an adoptive admission. The defendant adopted the statement of Fox as his own when he subsequently stated that no commission would be due if the deal did not go through. The defendant’s statement implied that if a sale did go through, a commission would be due in accordance with Fox’s statement.

The circumstances surrounding the meeting support our conclusion. The meeting took place in a small room with only five people present. The only topic to be discussed was the potential sale of the mill property to Mozzillo. The defendant had no nexus whatsoever with the Mozzillo offer to buy, and, therefore, could not have had any legal expectation of a commission arising from a purchase by Mozzillo. As a business person experienced in real estate transactions, the defendant must have known that he was not entitled to a commission for a sale in which he played no role. Also, in light of Fox’s prior statement and the fact that everyone present at the meeting was knowledgeable about real estate sales, the defendant’s statement could not be interpreted as a simple conversational filler. It is obvious that real estate commissions are not usually due unless a sale is effected, and a statement to that effect would not be made to a sophisticated audience unless it had another meaning.

Statements made within a defendant’s hearing that are relevant and material, to which he makes a subsequent comment or statement indicating that he has heard, understood and comprehended the first statement, are admissible as adoptive admissions. State v. John, supra, 682-84; see also State v. Harris, 182 Conn. 220, 228, 438 A.2d 38 (1980). Fox’s statement was a predicate to the defendant’s statement. Fox addressed the eventuality of a possible sale in which Wood would “cobroke [the] commission” with the defendant or the transaction would not go through the “town planning and zoning in Enfield.” The defendant addressed the alternative of no sale, thereby indicating that he understood and adopted Fox’s statement. State v. John, supra, 684. The defendant’s statement was not made in a vacuum. Given the particular circumstances surrounding Fox’s statement and the defendant’s comment, it would have been an abuse of discretion to fail to admit Fox’s statement as an adoptive admission.

Having concluded that Fox’s statement was admissible against the defendant, we must now consider the defendant’s claim that the evidence, including the statement, was insufficient to support his convictions of conspiracy to commit larceny by extortion and attempted larceny by extortion. The defendant essentially argues that the jury could not reasonably have found that the defendant had the specific intent required to commit those crimes.

Our role in evaluating the sufficiency of the evidence to support a jury verdict is well settled. “We first construe the evidence presented at trial in a light most favorable to sustaining the verdict, and then determine whether the jury could reasonably have found, ‘ “upon the facts established and the inferences reasonably drawn therefrom, that the cumulative effect of the evidence established guilt beyond a reasonable doubt. . . .” ’ ” State v. Hahn, 207 Conn. 555, 560, 541 A.2d 499 (1988); State v. Washington, 15 Conn. App. 704, 715, 546 A.2d 911 (1988). We do not sit as a thirteenth juror, and do not ask whether we believe the evidence established guilt beyond a reasonable doubt, but rather, whether, after viewing the evidence in the light most favorable to the state, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Washington, supra; State v. Stellato, supra, 451-52.

“A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in the pursuance of such conspiracy.” General Statutes § 53a-48 (a). As we have previously stated, a formal agreement need not be proved; State v. Ortiz, supra, 645; State v. Holmes, supra, 149; and the conviction may be based on circumstantial evidence. State v. Vessichio, supra, 656; State v. Smith, supra, 126. A conspiracy can be inferred from the conduct of the accused. State v. Brown, 199 Conn. 14, 22, 505 A.2d 690 (1986). Because conspiracy is a specific intent crime, the state must prove that the accused intended not only to agree but also to commit the offense that is the object of the conspiracy. State v. Beccia, 199 Conn. 1, 4, 505 A.2d 683 (1986).

Here, the state provided sufficient evidence to support the reasonable inference that the defendant agreed with Fox to commit the crime of larceny by extortion. The defendant’s intent can be inferred from his conduct. See State v. Stellate, supra, 453. The meeting was scheduled for and was held in the defendant’s office, indicating a prior agreement between the defendant and Fox. The defendant attended the meeting and was present when the incriminating statement was made. While we agree with the defendant that mere presence accompanied by silence is generally insufficient to show knowing participation in a conspiracy, here the defendant was not merely present. His statement that nothing would be expected if the deal did not go through supports the inference that he heard, comprehended and assented to Fox’s attempt to extort money from the victim. Both statements were overt acts in furtherance of the conspiracy. The jury could have reasonably inferred from the defendant’s relationship with Fox, his presence at the meeting in his own office, the statements of both the defendant and Fox, and the defendant’s lack of legitimate involvement with the potential sale, that he knowingly participated in the conspiracy.

The same evidence also reasonably supports the jury’s guilty verdict on the count of attempt to commit larceny by extortion. “A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime he: (1) intentionally engages in conduct which would constitute the crime if attendant circumstances were as he believes them to be; or (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.” General Statutes § 53a-49 (a). “Essentially, an attempt under § 53a-49 (a) is an act or omission done with the intent to commit some other crime.” State v. Green, 194 Conn. 258, 271-72, 480 A.2d 526 (1984). The act or omission constituting a substantial step must be more than mere preparation for committing the intended crime. Id. “[It] must be at least the start of a line of conduct which will lead naturally to the commission of a crime which appears to the actor at least to be possible of commission by the means adopted.” Id., 272. It also must be strongly corroborative of the actor’s criminal purpose. State v. Washington, supra, 717.

In order to have found in the present case that the defendant had the specific intent required to commit the crime of larceny by extortion, the jury would have had to find that he intended wrongfully to deprive Wood of his property by inducing him by threat to deliver the property to himself or a third party. General Statutes § 53a-119 (5). The threat in this instance was that by Fox to use or abuse his position as a public servant to affect Wood and Levitz adversely. General Statutes § 53a-119 (5) (H). The jury could reasonably have inferred, from all the evidence presented, that the defendant was in complicity with Fox and that he intended that the criminal act be performed. Fox’s statement was a substantial step in the commission of the crime of larceny by extortion. In fact, if events had transpired as planned, both Fox and the defendant would have done all that was necessary, short of actually collecting the extorted money, to assure completion of the crime.

The defendant finally claims that he could not have been convicted of either crime because the subject of the alleged attempted larceny and conspiracy to commit larceny was not property under General Statutes § 53a-118 (a) (1). That section defines property, in relevant part, as “any money, personal properly, real property, thing in action, evidence of a debt or contract, or article of value of any kind.” The defendant argues that because Wood had not yet earned his commission by producing a ready, willing and able buyer, the state failed to prove an essential element of the crime of larceny.

This argument cannot succeed because it fails to recognize the distinction between the actual commission of a crime and an attempt or a conspiracy to commit that crime. As previously stated, the elements of an attempt are the intent to commit the crime and the doing of an act that would constitute the crime or a substantial step toward the crime, if attendant circumstances were as the actor believed them to be. General Statutes § 53a-49. Similarly, to be convicted of conspiracy, the actor must intend to commit a crime, agree with another to commit a crime, and one of the parties must commit an overt act in furtherance of the conspiracy. General Statutes § 53a-48. We have found the evidence sufficient to support the convictions of attempt and conspiracy. Because both attempt and conspiracy are inchoate crimes, the fact that Wood had not yet earned his commission is irrelevant. See State v. Wilson, 30 Conn. 500, 506 (1862); see also State v. Anderson, 211 Conn. 18, 27, 557 A.2d 917 (1989).

The judgment of conviction must be upheld.

There is no error.

In this opinion the other judges concurred.

       The defendant was also charged with criminal attempt to commit bribery in violation of General Statutes §§ 53a-49 and 53a-147 but was found not guilty.

       The property was actually purchased by two corporations. Levitz was the president and sole officer and director of both corporations.

       The state argues that sustaining a trial court ruling on alternate grounds is equivalent to a finding of harmless error and that doing so impermissibly shifts the burden to the state of proving that the error was harmless. Some cases have described the situation where a trial court reaches a correct evidentiary result for a wrong reason as a form of harmless error. See Franehey v. Hannes, 152 Conn. 372, 380, 207 A.2d 268 (1965). Generally, where a defendant’s claim does not involve the violation of a constitutional right, the burden rests on him to prove the harmfulness of the court’s error. State v. Cooper, 182 Conn. 207, 212, 438 A.2d 418 (1980). In the present case, however, although the effect of finding the statement admissible on alternate grounds renders the initial error harmless, the usual harmless error analysis does not apply. The question here is not whether an error in admitting the statement might have affected the outcome of the case;
        State v. Magnano, 204 Conn. 259, 285, 528 A.2d 760 (1987); but whether the statement was admissible on other grounds. This is an evidentiary issue that can be determined as a matter of law and in which burdens of proof play no part.

       Because our consideration of the statement’s admissibility as a statement against penal interest and an adoptive admission is dispositive, we do not address the claim that the statement was admissible as a verbal act.

       Because the trial court ruled that the jury could not consider Fox’s evidence against the defendant, the record on appeal does not include a transcript of Fox’s testimony.

       We consider the issue of whether the statement would have been admissible as an adoptive admission in view of the fact that the Supreme Court has not yet had an opportunity to address the admissibility of a noncustodial dual inculpatory statement against penal interest. See State v. Boyd, 214 Conn. 132, 570 A.2d 1125 (1990).