author: Stoughton, J.

text:
    Rhonda Booker v. Michael K. Stern
    (7170)
    Dupont, C. J., Daly and Stoughton, Js.
    Argued May 11 —
    decision released August 8, 1989

      Gary F. Gottesman, for the appellant (defendant).

      Gilbert Shasha, with whom, on the brief, was Barry J. Ward, for the appellee (plaintiff).
   Stoughton, J.

A jury found in favor of the plaintiff on the first and fifth counts of a five count amended revised complaint. From the judgment rendered on each of those two counts, the defendant has appealed.

The defendant claims that the trial court erred (1) in admitting into evidence a photocopy of a check, (2) in excluding certain evidence concerning the plaintiff s conduct, (3) in refusing to submit interrogatories to the jury, and (4) in admitting certain photographs into evidence.

Some discussion of the facts is necessary to understand the claims made and our resolution of those claims. From the evidence presented, the jury could reasonably have found the following facts. The plaintiff met the defendant in 1984. The defendant was a builder and developer and had many business interests, including his interests in a real estate brokerage company, a mortgage company and a beauty salon. A close personal relationship developed between the plaintiff and the defendant, and she obtained a job at his beauty salon.

The plaintiff owned a house in North Stonington. In addition, she was executrix and sole heir of her father’s estate which included a house at Lord’s Point in Stonington. The plaintiff mortgaged both properties to obtain money to pay off various debts. When she was unable to meet the mortgage payments, the plaintiff was faced with the likelihood of foreclosure and decided to sell the Lord’s Point property. The defendant suggested that the Lord’s Point property needed repairs before it would sell. He suggested that the plaintiff would solve her financial problems by renovating the Lord’s Point property for sale and an upstairs apartment in the North Stonington house for rental.

On October 31,1984, the plaintiff, as executrix of her father’s estate, conveyed the Lord’s Point property to the defendant for $60,000. The deed falsely recited the consideration as $85,000. A housing and urban development closing statement also gave the sales price as $85,000, and falsely showed $25,000 as having been paid by the defendant for repairs. The mortgage was paid off out of the proceeds of the sale. On January 30, 1985, the defendant sold the Lord’s Point property for $79,000. No repair work had been done on the property. The defendant retained the proceeds of sale, despite his earlier representation that the property could be renovated and sold at a profit that the plaintiff would receive.

Also, on October 31, 1984, the defendant arranged for the plaintiff to borrow $29,600 from his mortgage company, secured by a mortgage on the North Stoning-ton property. The plaintiff turned over $22,000 to the defendant who promised to use it to pay for renovations and to pay the mortgage payments. The defendant hired workmen who began renovations on the apartment in the house in North Stonington. They stopped work the week before Christmas, leaving the work unfinished. The work done was of poor workmanship and there were a number of code violations. The defendant told the plaintiff that the $22,000 fund had been exhausted.

The plaintiff claimed in the first count of her complaint, that the defendant had fraudulently deprived her of approximately $25,000 in the purchase of the Lord’s Point property. In the second count, she claimed that the defendant had converted to his own use certain personal property stored at Lord’s Point. In the third count, she claimed that the defendant had been unjustly enriched by approximately $25,000. In the fourth count, she claimed that the defendant had fraudulently deprived her of approximately $25,000 in failing to complete renovations and to pay mortgage installments on the North Stonington property, and, in the fifth count, she claimed that the defendant had breached his agreement to renovate the North Stoning-ton property.

The first claim of error arises out of the introduction into evidence of a photocopy of a check. The defendant responded to interrogatories propounded by the plaintiff by stating, among other things, that he had spent over $5000 on repairs to the Lord’s Point property. He showed, as one of the expenditures, a payment to PRO Cleaners for interior and exterior cleaning and maintenance. He also produced a bill from PRO Cleaners for $500 and a photocopy of check number 775 drawn on Realty Management Associates for $500 payable to PRO Cleaners, signed by Michael K. Stern, and marked “Lord’s Pt. - Ston.” Stern was called as a witness by the plaintiff and testified that the signature on the check was his but that he had did not know what had been produced by his lawyers. He also said that his secretary had signed his name on the check. He testified that his secretary was authorized to sign his name on checks to pay hills, that the bills produced for work at Lord’s Point might have been for work done at the other house and that he did not think the work referred to was done at Lord’s Point. The defendant had signed an affidavit stating that the answers to the interrogatories and request for production were true and correct. The documents that had been produced, including the check for $500 payable to PRO Cleaners, were offered and marked exhibit nine. The defendant specifically denied having prepared altered copies of the actual checks, and testified that many original records had since disappeared from his office.

Against this background, the plaintiff called Mary Lou Ferguson, the defendant’s secretary, as a rebuttal witness. Ferguson testified that the defendant had directed her on many occasions to prepare false invoices. She testified that PRO Cleaners did not exist at the time of this transaction and suggested that a copy of the check as it passed through the bank would show a different payee.

After the plaintiff had rested, she was permitted to open her case to offer a photostatic copy of check number 775 which had been obtained by subpoena from the Norwich Savings Society. This check was payable to Michael K. Stern and signed and endorsed by him. The defendant objected, claiming that the copy was hearsay and that the original had not been requested or produced. The court overruled the objection.

The plaintiff recalled Ferguson who testified that she wrote check number 775, that it was made out to the defendant and that exhibit nine was an altered copy of the check.

The copy of the check produced by the bank was direct evidence of the fraud alleged by the plaintiff. It contradicted testimony by the defendant and corroborated testimony by the witness Ferguson. It was not hearsay but documentary evidence of a fraud. No objection was made that it was not the best evidence. In any case, it may have been the only evidence available in light of the defendant’s testimony that many records had disappeared from his office.

The defendant argues in his brief that the copy of the check was not admissible under the business entry rule. No such objection was made in the trial court and we refuse to consider it now. Practice Book § 4185.

The defendant’s next claim arises out of the exclusion by the court of certain questions propounded to the plaintiff. During the cross-examination of the plaintiff, the defendant’s counsel asked if she had had sex with any member of the construction crew that the defendant sent to work on the upstairs apartment of her house. The trial judge excluded this question on the ground that it was overly prejudicial. Later, during direct examination of a defendant’s witness, the defendant asked if the witness had ever known the plaintiff to be in love with anyone other than the defendant. The trial court excluded this question on the grounds of relevance. The defendant claims that exclusion of these questions was error because the plaintiff’s responses would be relevant to the issue of her credibility.

The trial court has broad discretion in ruling on the admissibility of evidence. State v. Parker, 197 Conn. 595, 601, 500 A.2d 551 (1985). Absent a clear showing of abuse of discretion, we will not disturb the trial court’s ruling that evidence is too remote from the fact it is offered to prove to be admissible. Id. In the present case, we agree with the trial court that the plaintiff’s sexual conduct is remote from the issues of whether a fiduciary relationship was formed and whether the defendant had committed a fraud, and from the issue of the plaintiff’s credibility.

The defendant’s third claim of error is that the trial court refused to submit interrogatories to the jury. The defendant originally proposed seventy-one interrogatories. According to the defendant, each interrogatory was a paraphrase of an allegation in the plaintiff’s amended revised complaint. This set of interrogatories was rejected by the trial court and the defendant agreed to reduce the number of questions. At oral argument, the defendant requested twenty-two interrogatories selected from the original seventy-one. The trial court agreed to consider this new set of interrogatories and suggested that counsel offer their arguments for or against the interrogatories as each was read aloud. In this manner, the defendant’s proposed set of twenty-two interrogatories was reduced to three. Dissatisfied with this result, the defendant withdrew his request for interrogatories and objected to the procedure employed by the trial court to examine each proposed interrogatory. He also objected to the trial court’s refusal to submit all twenty-two interrogatories to the jury. Thereafter, the trial court prepared five separate verdict forms, each coinciding with a different count in the plaintiff’s complaint. In its charge to the jury, the trial court informed the jury that count three, for unjust enrichment, was an alternative theory of liability to the allegation of fraud contained in count one. The trial court therefore instructed the jury that if they should find for the plaintiff on count one, they need not consider the alternative theory of liability contained in count three. After deliberation, the jury returned verdicts for the plaintiff on counts one and five and for the defendant on counts two and four.

The law of this state has long recognized that when the plaintiff’s complaint contains two or more counts, or when two or more causes of action are incorporated in one count, the defendant has a right to protect himself from the implication of a general verdict. Sheeler v. Waterbury, 138 Conn. 111, 114-15, 82 A.2d 359, (1951). The rule as to general verdicts is that “where a complaint is divided into counts and a general verdict is returned, it will be presumed, if the charge and all rulings are correct on any count, that damages were assessed as to that count, and the verdict will be sustained.” Id. It has been the practice of our trial courts to obtain separate verdicts from the jury on each count of the complaint in cases where each count contains only one cause of action. See Sellner v. Beechwood Construction Co., 176 Conn. 432, 439, 407 A.2d 1026 (1979); Aaronson v. New Haven, 94 Conn. 690, 697, 110 A. 872 (1920); Johnson v. Higgins, 53 Conn. 236, 241, 1 A. 616 (1885); Newell v. Roberts, 13 Conn. 63, 73 (1839).

Verdicts separated as to counts operate as general verdicts on those counts. If a count contains more than one cause of action, and a verdict is returned for the plaintiff on that count, the court will presume that the jury found for the plaintiff on each cause of action. See Hally v. Hospital of St. Raphael, 162 Conn. 352, 362-63, 294 A.2d 305 (1972). The court will not set aside a verdict for the plaintiff on one count as long as one cause of action within the count supports the verdict. See Callahan v. Jursek, 100 Conn. 490, 494, 124 A.2d 31 (1924). In order to obtain the jury’s determination as to each cause of action within a count, the defendant has a right to resort to interrogatories. Id.; see also Aaronson v. New Haven, supra; Johnson v. Higgins, supra.

In this case, the trial court submitted separate verdict forms to the jury. Each count of the plaintiff’s complaint contains only one cause of action, despite the defendant’s claim to the contrary. The trial court charged the jury that each count contained only one cause of action and we agree. There was no error in the trial court’s decision not to submit interrogatories to the jury as to each count after the defendant withdrew his request for interrogatories.

The defendant does not object to the use of separate verdicts. Rather, the defendant objects to the trial court’s procedure for selecting interrogatories and to its refusal to submit all of the twenty-two interrogatories requested.

The procedural rule for submitting interrogatories to a jury is found in Practice Book § 312, which provides: “The court may submit to the jury interrogatories for the purpose of explaining or limiting a general verdict, which shall be answered and delivered to the clerk as a part of the verdict. The clerk will take the verdict and then the answers to the several interrogatories, and thereafter he will take the court’s acceptance of the verdict returned and the questions as answered, and proceed according to the usual practice. The court will not accept a verdict until the interrogatories which are essential to the verdict have been answered.” Further procedural guidance has been provided by this court. In Hartford v. Anderson Fairoaks, Inc., 7 Conn. App. 591, 596, 510 A.2d 200 (1986), we stated: “[I]t is the duty of the court to examine the substance of jury questionnaires to verify their appropriateness to the evidence and issues presented to the jury. If jury questionnaires are improper in form or content, it is incumbent upon the court to rephrase the interrogatories in order that they will guide the jury in reaching their proper verdict. In such event, it is preferable for the court to provide counsel with copies of its interrogatories prior to oral argument.”

Our cases recognize that when the defendant requests interrogatories, the trial court has broad discretion to regulate the manner in which interrogatories are presented to the jury. See Freedman v. New York, N.H. & H.R. Co., 81 Conn. 601, 614, 71 A. 901 (1909) (when and how counsel may request interrogatories to be propounded, in the absence of any statute or rule, is the duty of the trial court to determine in its discretion); see also Shenefield v. Greenwich Hospital Assn., 10 Conn. App. 239, 522 A.2d 829 (1987) (length and form of the interrogatories are determined by the trial court in the context of the case and should not be the basis of error unless there is a clear abuse of discretion). The trial court may limit the number of interrogatories. Callahan v. Jursek, supra (interrogatories should be as few in number as will reasonably present the defendant’s claims); see also Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Cole, 189 Conn. 518, 457 A.2d 656 (1983) (trial court properly discarded redundant interrogatory). The trial court may also control the wording of interrogatories. See Hartford v. Anderson Fairoaks, Inc., supra.

The trial court attempted to work with the parties in the present case. The trial court heard arguments for and against each of the defendant’s twenty-two interrogatories as they were read aloud to the court. The defendant objected to the procedure after the set was reduced to three. We find, however, that the trial court acted in accordance with the procedure outlined in Practice Book § 312.

In his brief before this court, the defendant points to an alleged inconsistency in our Supreme Court’s holdings in Freedman v. New York, N.H. & H.R. Co., supra, and Callahan v. Jursek, supra. There is no such conflict. In Freedman v. New York, N.H. & H.R. Co., supra, the Supreme Court said: “[W]e shall not attempt to formulate definite rules for determining accurately in every case just what interrogatories may be so submitted to the jury. It may, however, be well to state the following, as some of the general requisites of such permissible interrogatories: They should generally be few in number, and never so numerous as to confuse or perplex the jury in rendering their verdict. They should be so clear and concise as to be readily understood and answered by the jury. Each question should call for a finding of but a single fact. When practicable each question should be so framed as to call for a categorical answer. Each question should ask for the finding of a fact and never for a conclusion of law. No question should ask for the finding of a purely evidential fact nor of an uncontroverted fact. Although not wholly covering, nor necessarily controlling, the determination of any issue framed, the fact sought to be elicited must be pertinent to some issue, and one which may be of material weight in deciding it. No interrogatory should be permitted, the response to which cannot serve either to limit of explain a general verdict, or aid in proceedings for a subsequent review of the verdict or judgment which may be rendered.” In Callahan v. Jursek, supra, the plaintiff alleged that the defendant induced him through a series of fraudulent statements to purchase an automobile stop signal for the state of Connecticut. The Supreme Court said: “[I]n this case each representation set forth in the interrogatories followed those of the complaint and all were contained in one count. If each representation was found to be false, made with intent to deceive and relied upon by the plaintiff to his damage, there were as many causes of action as there were representations, and the defendant was entitled to have the jury answer each special interrogatory, properly framed, as to each of these causes of action.” Id. The defendant reads this aspect of the case as granting a license to all defendants to paraphrase each statement in the plaintiff’s complaint in interrogatories to the jury. The holding in Callahan v. Jursek, supra, is limited, however, to its facts, and a defendant cannot paraphrase the plaintiff’s allegations in interrogatories unless each allegation by itself, and if true, would give the plaintiff a cause of action.

The defendant’s final claim is that the trial court erred in admitting certain photographs into evidence. The trial court admitted into evidence two sets of photographs that the plaintiff offered in support of her claim in count five of her amended revised complaint that the defendant had performed substandard work in attempting to renovate the upstairs apartment of her house. The defendant raises two objections. The defendant claims that the plaintiff could not properly authenticate the photographs because she had poor eyesight and was not wearing glasses when she testified that the pictures represented a fair and accurate representation of the condition in which the defendant’s workers had left her house. The defendant also claims that the photographs should have been excluded because they were not taken until one year after the defendant’s workers had left the plaintiff’s house.

Anyone who has personal knowledge of the subject matter of photographs is competent to testify whether they are a fair and accurate representation of what they depict and thereby to lay the foundation for their introduction into evidence. Cagianello v. Hartford, 135 Conn. 473, 475, 66 A.2d 83 (1949). In the present case, there is no dispute that the plaintiff had personal knowledge. She had lived in the photographed house since childhood. The fact that she did not have on her glasses did not prevent her from determining that the pictures fairly and accurately represented the condition of her house.

The fact that the photographs were taken a year after the defendant’s workers had left the plaintiff’s house goes to the weight that should be afforded that evidence, not to the issue of authenticity.

There is no error.

In this opinion the other judges concurred.


source: Caselaw Access Project

author: Borden, J.

license: Public Domain

text:
    Intervale Homeowners Association et al. v. Environmental Protection Board of the City of Stamford et al.
    (7302)
    Borden, Spallone and Jacobson, Js.
    Argued May 3 —
    decided June 7 —
    decision released July 26, 1989

      Robert S. Peeters, with whom was Sandra Lax, for the appellants (plaintiffs).

      James V. Minor, assistant corporation counsel, with whom, on the brief, was Mary Sommer, corporation counsel, for the appellee (named defendant).

      Gordon R. Paterson, for the appellee (defendant Stamford Associates).
   Borden, J.

The plaintiffs appeal from the judgment of the trial court, dismissing their administrative appeal challenging a decision of the defendant environmental protection board of the city of Stamford (board). That decision approved an application by the defendant Stamford Associates to conduct regulated activities in a wetlands area owned by Stamford Associates.

The plaintiffs claim that the trial court erred in concluding (1) that the board’s decision was not arbitrary and capricious, or an abuse of discretion, (2) that the board was not required to consider a certain soil erosion and sediment control plan when evaluating the application, (3) that the board was not required to consider the environmental impact on areas outside the wetlands, and (4) that the defendant Stamford Associates properly served notice of the hearing to property owners by using the Stamford assessor’s records. We find no error.

Stamford Associates filed an application with the board to conduct regulated activities within a thirty acre parcel of regulated wetlands. The applicant requested approval of plans to construct storm water management structures, sanitary sewer and water lines, and for the discharge of storm water from specified portions of the tract, so that approximately eight acres of the tract could be developed for the construction of forty-five residential units. Under the proposal, roughly twenty-two acres would be dedicated as undeveloped wetlands and uplands designated as open space or conservation areas. After a public hearing, the board approved the application with certain conditions. The plaintiffs appealed to the trial court, which dismissed their appeal. This appeal followed.

I

The plaintiffs first claim that, because the board failed to consider whether a prudent and feasible alternative existed, the board’s approval of the application was arbitrary, capricious or an abuse of its discretion. We disagree.

The plaintiffs maintain that § 6.7 (d) (ii) of the Stamford inland wetland and watercourses regulations requires the board to consider alternative regulated activities that might enhance the quality of the environment or impact the environment less detrimentally and still attain the basic objectives of the activity. They argue that the record is devoid of evidence indicating such alternatives were considered by the board. Their contention is belied by the record. Suffice it to say that we have fully reviewed this record, and conclude that the board fully considered all alternatives presented to it by both the applicant and the plaintiffs.

The plaintiffs also argue that certain alternatives should have been adopted by the board instead of those approved. Our assessment of the record leads us to conclude that, as to each of the avenues the plaintiffs would have had the board adopt, the board had substantial evidence before it to support its determinations. See Huck v. Inland Wetlands & Watercourses Agency, 203 Conn. 525, 540-42, 525 A.2d 940 (1987). “With regard to questions of fact, it is neither the function of the trial court nor of this court ‘to retry the case or substitute its judgment for that of the administrative agency.’ Madow v. Muzio, 176 Conn. 374, 376, 407 A.2d 997 (1978); Hospital of St. Raphael v. Commission on Hospitals & Health Care, 182 Conn. 314, 318, 438 A.2d 103 (1980); see General Statutes § 4-183 (g).” Griffin Hospital v. Commission on Hospitals & Health Care, 200 Conn. 489, 496, 512 A.2d 199, appeal dismissed, 479 U.S. 1023, 107 S. Ct. 781, 93 L. Ed. 2d 819 (1986). The plaintiffs’ first argument is without merit.

II

The plaintiffs next claim that the court erred in deciding that the board could approve the application without requiring that a soil erosion and sediment control plan be submitted, as required by the Stamford zoning regulations and General Statutes § 22a-329. We agree with the trial court that those requirements concern the action of the zoning authorities, not the board in this case, and that the board in this case properly-considered soil erosion and sediment control matters as required under § 6.7 of the Stamford wetland and watercourses regulations. Indeed, the board conditioned its approval in part on the applicant’s fulfilling certain erosion and sediment control requirements. This claim is without merit.

The plaintiffs argue, however, that the board could not properly have approved the application without satisfying the requirement in Section 15.B of the Stamford zoning regulations that states that “[n]o building permit shall be issued for any application for development . . . unless accompanied by a Soil Erosion and Sediment Control Plan. ...” The plaintiffs argue that the board was required to review the plan along with the application, and require that the plan conform to the specific requirements in the regulation, because the zoning regulations further stated that “nothing in these regulations shall be construed to require the filing of a separate application for those activities for which a permit has been issued by the Environmental Protection Board . . . provided such approvals certify conformity with the erosion and sediment control standards of this subsection.”

The defendants correctly respond that the zoning regulation specifically requires such a plan before a building permit may be issued, which was not the consideration before the board in this instance. Once the board granted approval of the applicant’s request to conduct regulated activity on the parcel, the applicant would be required to obtain zoning approval before it could construct any buildings on the property. The applicant would then be required to satisfy the zoning requirement concerning the soil erosion and sedimentation plan before a building permit could be issued. The court was correct in concluding that the board satisfied its own regulations and that the plan required under the zoning regulations was not required before the board could approve the application.

III

The plaintiffs next claim that the court erred because it concluded that the board was not required to consider the environmental impact the regulated activity would have on areas outside the wetlands. This claim is based on a misreading of the trial court’s decision.

The trial court did not hold that the board need not consider the environmental impact of the regulated activity on areas outside the wetlands. The part of the trial court’s memorandum of decision on which the plaintiffs focus for this claim involved a discussion of the principle, discussed previously, that the board need not have required compliance with the city’s zoning regulations in making its decision. We need not, therefore, consider this claim further.

IV

The final claim of the plaintiffs is that the court erred in concluding that the reliance by Stamford Associates on the city’s assessor’s list for the names of landowners was sufficient to satisfy statutory and regulatory notice requirements, even though four landowners did not receive notice. The plaintiffs in this appeal, however, are not entitled to raise this issue. The plaintiff Inter-vale Homeowners Association owns no real property and thus was not entitled to receive notice under § 5.3. See Mystic Marinelife Aquarium, Inc. v. Gill, 175 Conn. 483, 492-97, 400 A.2d 726 (1978). There is no showing by the remaining individual plaintiffs that they did not receive adequate notice, and the record indicates that they did receive notice and participated, through counsel, in the hearing before the board. See Schwartz v. Hamden, 168 Conn. 8, 15, 357 A.2d 488 (1975) (plaintiffs appearing without objection at hearing waive their right to claim lack of personal notice).

There is no error.

In this opinion the other judges concurred.

       The plaintiffs are the named plaintiff, which is a nonprofit organization consisting of owners of property surrounding the wetlands involved in this appeal, and Robert J. Cavaliero, Pamela S. Cavaliero, Theodore Geriak, Mildred Geriak, and Anne Geriak Roth, who own property in close proximity to the wetlands parcel.

       The regulated activities proposed by the applicant were designed, in part, to meet the city’s zoning requirement that the proposed cluster home development be serviced by a city sanitary sewer. That portion of the tract where the regulated activities would occur lies between a public road near the northerly section of the property, from which storm water runoff originates, and an older residential development, constructed on filled wetlands, near the southerly part of the tract. The older development is not serviced by a city sanitary sewer and has been beset by septic tank problems in recent years.

       In this connection, the plaintiffs appear to argue also that the board erred in failing to issue an environmental impact evaluation as required by General Statutes § 22a-lb (b). The record indicates that this issue was not raised in the trial court, and we decline to examine it for the first time on appeal. Practice Book § 4185.

       We decline to respond to the bare assertion that the board failed to state on the record that a feasible alternative does not exist, purportedly required under General Statutes § 22a-41 (b). This matter was not raised in the trial court. Practice Book § 4185. For the same reasons, we decline to consider the plaintiffs’ claim that the board faded to state on the record the reasons for its decision, as required by General Statutes § 22a-42a (d).

       General Statutes § 22a-329 specifically requires municipal zoning and planning authorities adopting regulations pursuant to General Statutes §§ 8-2 and 8-25, to require that soil erosion and sediment control plans be submitted with certain development applications.

       Stamford Inland Wetland and Watercourses Regulations § 6.7 provides in relevant part: “The Agency must consider the following in making its final decision on all permit applications . . . d. All relevant facts and circumstances, including but not limited to the following:
      “(i) The environmental impact of the proposed action, including effects of the activity on the inland wetland’s and/or watercourse’s natural capacity to support desirable biological life, to prevent flooding and erosion, to supply water, to control sediment, to facilitate drainage, and to promote public health and safety.”

       Stamford Inland Wetland and Watercourses Regulations § 5.3 provides in relevant part: “Any person submitting an application to the Agency shall give written notification to abutting property owners — return receipt requested — of the nature of the application. In the case of an inland wetland, such notification shall be sent by the applicant to all property owners within five hundred (500) feet of the boundaries of the applicant’s parcel containing the inland wetland area.”


author: Dupont, C. J.

text:
    In the Matter of Daniel V. Presnick
    (SAC 001)
    Dupont, C. J., Borden, Spallone, Daly, O’Connell, Stoughton, Norcott and Foti, Js.

      Argued December 12, 1988 —
    decision released July 26, 1989

      Daniel V. Presnick, pro se.
   Dupont, C. J.

This matter arises out of an en banc show cause hearing conducted, sua sponte, by this court, after notice to a member of the Connecticut bar, Daniel V. Presnick, to determine whether he should be barred from filing in this court, “any papers, including the filing of an appearance on behalf of a party other than himself, and from appearing in Court,” as a result of his failure to comply with a prior order of this court. Presnick appeared at the hearing, argued, and subsequently submitted a brief.

The issue raised by the show cause order and the hearing is whether this court has the power to impose the sanction of a suspension from practice before this court when an order of the court has been disobeyed. We hold that we do.

The prior order of this court that was the basis of the show cause hearing was that Presnick, the pro se defendant in the case of Esposito v. Presnick,. 15 Conn. App. 654, 546 A.2d 899, cert. denied, 209 Conn. 819, 551 A.2d 755 (1988), should pay the sum of $500 as a sanction for his failure to attend a preargument settlement conference in that case. Presnick was ordered to pay that sum to the chief clerk of the Appellate Court who, in turn, was directed to make payment of the same sum to the opposing counsel in the case. The money has never been paid.

At the show cause hearing, and in his brief, Presnick basically argues that there is no specific rule of this court that provides for the sanction of prohibiting an attorney from appearing in this court or filing papers in this court on behalf of others, and, therefore, no such sanction can be imposed. He further argues that this is particularly the case when the underlying behavior of the attorney that is the cause of the sanction arises in a case in which he or she appeared pro se. He further claims that the proposed sanction is tantamount to disbarment in this court and that before such a sanction may be imposed, federal constitutional due process requires that a fair and impartial hearing be held after reference by this court to an impartial factfinding body.

Presnick’s arguments, then, are that this court is powerless to impose the sanction of preventing him from practicing law in this court because the behavior of which we complain occurred while he was acting pro se, that there is no specific rule of this court providing for such a sanction, and that without a finding of facts by an impartial body his due process rights were violated.

It is undisputed that the failure to pay the $500, which was the original sanction imposed, arose while Pres-nick was representing himself, as opposed to representing another in his capacity as a member of the bar of this state. Although misconduct of an attorney may be unconnected with representation of another as a member of the bar, punishment may be imposed for that misconduct because it is an indication of a general unfitness to practice law. Grievance Committee v. Broder, 112 Conn. 269, 274, 152 A. 292 (1930); In re Peck, 88 Conn. 447, 450, 91 A. 274 (1914). The practice of law is a privilege and if an attorney “by misconduct in any capacity, discloses that he ... is an unfit . . . person to be entrusted with the responsibilities and obligations of an attorney, his right to continue in the enjoyment of his professional privilege may and ought to be declared forfeited.” (Emphasis added.) Id. Failure to obey an order of a court is inimical to the responsibilities of a member of a bar as an officer of that court and whether the disobedience arises from representing oneself or another in a professional capacity makes no difference.

Our sanction rule, Practice Book § 2036, provides in relevant part: “The following will subject an offender, at the discretion of the court, to appropriate discipline .... (1) Failure to comply with rules and orders of the court. . . . Offenders subject to such discipline include both counsel and pro se parties.” The rule is entirely clear that pro se parties will be subject to discipline for violations of the court’s rules.

There has been an increasing tendency in many courts to impose severe sanctions on those who undertake to represent themselves but abuse the process of the courts to the detriment of other litigants and to the detriment of the court. See, e.g., In re Martin-Trigona, 737 F.2d 1254 (2d Cir. 1984); Matter of Hartford, Textile Corporation, 681 F.2d 895 (2d Cir. 1982); Sparrow v. Reynolds, 646 F. Sup. 834 (D.D.C. 1986). Those sanctions may be imposed whether the malfeasor was, or was not, an attorney or was an attorney representing himself or others. See Browning Debenture Holders’ Co. v. Dasa Corporation, 605 F.2d 35 (2d Cir. 1978). Since a client may be punished for the transgressions of his attorney; Gionfrido v. Wharf Realty, Inc., 193 Conn. 28, 474 A.2d 787 (1984); there is no compelling reason not to punish that same client who chooses himself as an attorney. Whether an attorney represents himself or not, his basic obligation to the court as an attorney remains the same. He is an officer of the court no matter who is the client. Disciplinary proceedings not only concern the rights of the lawyer and the client, but also the rights of the public and the rights of the judiciary to ensure that lawyers uphold their unique position as officers and commissioners of the court. Heslin v. Connecticut Law Clinic of Trantolo & Trantolo, 190 Conn. 510, 461 A.2d 938 (1983). An attorney must conduct himself or herself in a manner that comports with the proper functioning of the judicial system. Chang v. Meese, 660 F. Sup. 782 (D. Puerto Rico 1987).

The special relationship between courts and their officers, those attorneys who practice before them, requires a court to monitor the conduct of those officers of the court. Statewide Grievance Committee v. Rozbicki, 211 Conn. 232, 558 A.2d 986 (1989). The purpose of such control is to protect the public from the effects of possible future misconduct by an officer of the court. The protection needed is no less necessary because the miscreant behavior occurs while the officer represents himself.

Presnick had a right to represent himself. He has no right, however, to expect that self-representation to clothe him with immunity from conforming to the behavior required of an officer of the court. A lawyer’s primary obligation is to the court and if there is a conflict between what he or she perceives as the interest of the client and the duty owed to the court, the latter must prevail. Here, the identity of client and lawyer merged. Presnick’s obligation to obey the court’s order transcended his belief that, as his own client, he did not have to attend the preargument settlement conference or pay the $500. We hold that the fact that Presnick’s failure to obey an. order of this court occurred while he represented himself is not a bar to the imposition of a sanction that relates to his representation, as an attorney, of others.

Presnick also argues that this court has no specific rule providing for the sanction described in our show cause order, and that, therefore, we cannot impose such a sanction. Practice Book § 2036 does not specifically provide that a sanction against a member of the bar who appears before us might be the prohibition of filing papers in this court or appearing in this court. The rule does, however, subject offenders, namely those who violate the rules and orders of this court, to “appropriate discipline.” A discussion of Presnick’s claim necessarily involves a discussion of the sources of the power of courts. We hold that the sanction proposed by our show cause order is included within the words “appropriate discipline” because we conclude that we have both the inherent and statutory power to impose such a disciplinary sanction, and that the sanction is warranted on the facts of this case.

There are three possible sources for the authority of courts to sanction counsel and pro se parties. These are inherent power, statutory power, and the power conferred by published rules of the court. The power of a court to manage its dockets and cases by the imposition of sanctions to prevent undue delays in the disposition of pending cases is “of ancient origin, having its roots in judgments . . . entered at common law, e.g., 3 Blackstone, Commentaries (1768), 295-296, and dismissals . . . e.g., id., at 451.” Link v. Wabash Railroad Co., 370 U.S. 626, 630, 82 S. Ct. 1386, 8 L. Ed. 2d 734, reh. denied, 371 U.S. 873, 83 S. Ct. 115, 9 L. Ed. 2d 112 (1962). That power may be expressly recognized by rule or statute but it exists independently of either and arises because of the control that must necessarily be vested in courts in order for them to be able to manage their own affairs so as to achieve an orderly and expeditious disposition of cases. Id; Petition for Integration of Bar of Minnesota, 12 N.W.2d 515 (Minn. 1943). Simply stated, “[t]he inherent powers of . . . courts ‘are those which are necessary to the exercise of all others. United States v. Hudson, 7 Cranch 32, 34, 3 L. Ed. 259 (1812).” Roadway Express, Inc. v. Piper, 447 U.S. 752, 764, 100 S. Ct. 2455, 65 L. Ed. 2d 488 (1979).

The cases are legion, both federal and state, that provide that by rule, statute, or the use of inherent power, courts must be able to discipline members of the bar, and others who appear before the courts, in order to compel observance of their rules and orders. Statewide Grievance Committee v. Rozbicki, supra; see also Thode v. Thode, 190 Conn. 694, 462 A.2d 4 (1983); Heslin v. Connecticut Law Clinic of Trantolo & Trantolo, supra; Fattibene v. Kealey, 18 Conn. App. 344, 358-60, 558 A.2d 677 (1989); In re Greathouse, 248 N.W. 735 (Minn. 1933).

Attorneys admitted to the practice of law in this state are attorneys of all courts of the state and “shall be subject to the rules and orders of the courts before which they act.” General Statutes § 51-84 (a). “Any such court . . . may suspend or displace an attorney for just-cause.” General Statutes § 51-84 (b).

The Supreme Court governs the admission to practice law in all of the courts of this state. Those admitted to practice in this state, therefore, are authorized to practice in the Appellate Court without any special or particular admission to the Appellate Court. See R. Martineau, Modern Appellate Practice: Federal and State Civil Appeals (1983) § 18.9. Each court in the Connecticut constitutional hierarchy, however, is free to formulate its own rules relating to the practice and procedure to be followed in that court. Thus, there are Superior Court, Appellate Court and Supreme Court rules. Furthermore, any court established by our state constitution has an inherent power, independent of any statute, to make rules governing the procedure to be followed in it. State Bar Assn. v. Connecticut Bank & Trust Co., 145 Conn. 222, 232, 140 A.2d 863 (1958). The Appellate Court is a constitutional court; Conn. Const., amend. XX, § 1; and, therefore, may make and enforce its own procedural rules.

Thus, it is not only the Superior Court that may order a suspension from the practice of law. “Any other court . . . may [also] fíne an attorney for transgressing its rules and doubtless has the power to forbid him from appearing before it . . . .” Fairfield County Bar v. Taylor, 60 Conn. 11, 12, 22 A. 441 (1891). The purpose of suspension from practice is to protect courts from the conduct of attorneys who are unfit to practice. In re Application of Pagano, 207 Conn. 336, 339, 541 A.2d 104 (1988).

General Statutes § 51-84 (b), when read in conjunction with § 51-84 (a), specifically states that a court “may suspend or displace [attorneys] for just cause.” Suspension need not be permanent or total. In re Application of Dimenstein, 36 Conn. Sup. 41, 43, 410 A.2d 491 (1979). Suspension may be summary, and is an inherent power of the particular constitutional court. See In re Durant, 80 Conn. 140, 147, 67 A. 497 (1907).

As long as there is no denial of due process, we conclude that this court may, for good cause, discipline attorneys who practice before it by suspending them from practice in this court for a reasonable and stated period. In re Application of Courtney, 162 Conn. 518, 523, 294 A.2d 569 (1972); see In re Solerwitz, 848 F.2d 1573 (Fed. Cir. 1988), cert. denied, 488 U.S. 1004, 109 S. Ct. 784, 102 L. Ed. 2d 775 (1989); In re Boucher, 837 F.2d 869, reh. granted, 850 F.2d 597 (9th Cir. 1988); United States v. Ford, 806 F.2d 769 (7th Cir. 1986); United States v. Gerrity, 804 F.2d 1330 (7th Cir. 1986); In the Matter of Campos, 737 F.2d 824 (9th Cir. 1984); In re Bithoney, 486 F.2d 319 (1st Cir. 1973).

Even where there has been no notice of the possibility of a particular sanction, and no rule providing for such a sanction, the sanction is not necessarily void. Link v. Wabash Railroad Co., supra, 632. In that case, the United States Supreme Court upheld the dismissal of the plaintiffs case because of a failure to attend a pretrial conference. Courts have inherent power, not granted by rule or statute, but by the control necessarily vested in courts, to manage their own affairs to achieve an orderly and expeditious disposition of cases. “[W]hen circumstances make such action appropriate, a [court] may [invoke a sanction] even without affording notice of its intention to do so or providing an adversary hearing before acting. Whether such an order can stand . . . depends not on power but on whether it was within the permissible range of the court’s discretion.” Id., 633.

The particular type of misconduct by attorneys that has resulted in time limited or indefinite suspension from practice before a particular court varies. Such suspension has resulted when the attorney violated a rule relating to a briefing schedule; United States v. Gerrity, supra; United States v. Ford, supra; when an appeal was filed for the purposes of delay; In the Matter of Campos, supra; when misrepresentations of facts were made in a brief; In re Boucher, supra; or when frivolous appeals were filed; In re Solerwitz, supra.

The “appropriate discipline,” as provided in our rules, can encompass sanctions, other than monetary sanctions, which we, in the sound exercise of our discretion, believe to be warranted. See Donaldson v. Clark, 819 F.2d 1551 (11th Cir. 1987). In this case, after a hearing, we ordered Presnick to pay $500 as a sanction for his failure to attend a preargument settlement conference. That monetary sanction was ordered on June 4,1987, after a hearing. Presnick has been given every opportunity to pay it, but he has failed to do so since the date of the order. The sanction of prohibiting him from filing or appearing in this court for a definite period of time will serve to protect the court, litigants, and any future clients of Presnick from further malfeasance and is an appropriate corrective measure.

Presnick’s last claim is that the sanction described in the show cause order could not be imposed unless an impartial body held a hearing and found facts sufficient for the imposition. We agree that the sanction will have a professional and economic impact and, that, therefore, due process must be afforded. See Oliveri v. Thompson, 803 F.2d 1265 (2d Cir. 1986); In re Bithoney, supra; Grievance Committee v. Goldfarb, 9 Conn. App. 464, 519 A.2d 624 (1987). Although we agree that ordinarily due process would require that a hearing be held before sanctions can be imposed, we do not agree that the hearing must be an evidentiary one. Oliveri v. Thompson, supra, 1280; Markel v. Scovil Mfg. Co., 657 F. Sup. 1102 (W.D.N.Y. 1987); Levin & Sobel, “Achieving Balance in the Developing Law of Sanctions,” 36 Cath. U.L. Rev. 587, 607 (1987).

The right to a hearing is limited to cases in which a hearing would assist the court in its decision, usually because there is a contested factual issue to be resolved. Hill v. Norfolk & Western Railway Co., 814 F.2d 1192, 1200 (7th Cir. 1987); see also Mays v. Chicago Sun-Times, 865 F.2d 134 (7th Cir. 1989). The conduct to be censured in the present case is the failure of the defendant to pay $500 after having been ordered by this court to do so. There is no contested factual issue, and this court is thoroughly familiar with all of the relevant facts. See, e.g., Fed. R. Civ. P., Notes of Advisory Committee on Rule 11; compare Fattibene v. Kealey, supra.

We hold that this court may, after reasonable notice and after affording an opportunity to an attorney to show cause to the contrary, take appropriate disciplinary action against an attorney who practices before it for conduct that is an affront to the court’s authority or that interferes with the ability of this court to process its cases in an orderly and expeditious manner. See In re Solerwitz, supra. An attorney is entitled to a fair determination of whether a further sanction should be imposed after an admitted failure to comply with a prior sanction, but the precise procedure to obtain that result is for a court to determine. In re Durant, supra, 148. Presnick had such a fair determination and was afforded the due process to which he was entitled.

Daniel V. Presnick is prohibited henceforth from filing any papers in this court and from making an appearance in this court for a period of six months. After that period, and upon the payment of $500 as previously ordered by this court, and upon the filing and granting of a motion for reinstatement, the defendant may resume practice before this court if he is otherwise qualified to practice law in the courts of this state.

In this opinion the other judges concurred.

       The preargument settlement conference program is an essential program of this court, allowing the disposition by settlement of many cases that would otherwise require written decisions, usually after oral argument. So essential is the program considered that our rule on sanctions, Practice Book § 2036, specifically provides that the failure to attend a conference will subject an offender to “appropriate discipline,” and that offenders subject to such discipline include pro se parties.
      A full discussion of the circumstances surrounding the imposition of the sanction of the $500 appears in Esposito v. Presnick, 15 Conn. App. 654, 546 A.2d 899, cert. denied, 209 Conn. 819, 551 A.2d 755 (1988). In that case, we found that the refusal to obey the order that imposed the sanction was a violation of Rule 8.4 of the Rules of Professional Conduct and directed that the matter of the defendant’s misconduct be referred by the clerk of this court to the statewide bar counsel pursuant to Practice Book § 27P for appropriate action. The clerk did so and the Fairfield Judicial District Grievance Panel found probable cause that Daniel Presnick was guilty of misconduct due to a violation of Rule 8.4 (d). That panel then referred the matter to the statewide grievance committee for final action. The committee adopted the proposed decision of the reviewing subcommittee and decided that Presnick should be presented by the committee to the Superior Court for whatever discipline the Superior Court may deem appropriate. The jurisdiction of the grievance committee, or any action of it, or any future action of the Superior Court is not the subject of this decision. The sanction described in the show cause order of this court, and as imposed pursuant to this decision is independent of any other future punishment that may be imposed by the Superior Court after presentment to it. The grievance procedures of Practice Book §§ 27B through 31 need not first be exhausted before this court can exercise its independent and inherent jurisdiction. In re Peck, 88 Conn. 447, 91 A. 274 (1914); Grievance Committee v. Goldfarb, 9 Conn. App. 464, 519 A.2d 624, cert. denied, 203 Conn. 802, 522 A.2d 292 (1987); see also United States v. Stillwell, 810 F.2d 135 (7th Cir. 1987); United States v. Gerrity, 804 F.2d 1330 (7th Cir. 1986); In re Herman N. Horwitz, 21 Conn. Sup. 363, 154 A.2d 878 (1959); see Practice Book § 30, 50 Conn. L.J., No. 48, p. 6B (May 30,1989), effective September 15, 1989.

       A hearing was held in this court before the monetary sanction was imposed and the defendant had notice, actual or constructive, of the published rule, namely, that the failure to attend a preargument conference can result in a sanction, including a monetary sanction. Practice Book § 2036; compare In re Mongillo, 190 Conn. 686, 461 A.2d 1387 (1983).

       Presnick makes other arguments that relate to the imposition of the $500 fine, rather than the imposition of the sanction involved in the show cause hearing that is the subject of this decision. He claims that because he believed that the preargument settlement conference could be of no value to him, he did not have to attend and that, not having attended, he was never subject to the jurisdiction of the settlement program. He claims, therefore, this court never acquired jurisdiction over him that could compel his attendance at the settlement conference. We decline to address these arguments because they do not relate to the subject matter of this decision, namely, the show cause order.

       It is increasingly the case that both federal and state courts have been exercising their power to discipline those attorneys who appear before them by imposing various sanctions, including sanctions that affect the outcome of the particular litigation in which the misconduct occurred. See, e.g., Levin & Sobel, “Achieving Balance in the Developing Law of Sanctions,” 36 Cath. U.L. Rev. 587 (1987); Risinger, “Honesty in Pleading and Its Enforcement: Some ‘Striking’ Problems with Federal Rule of Civil Procedure 11,” 61 Minn. L. Rev. 1 (1976); note, “Plausible Pleadings: Developing Standards for Rule 11 Sanctions,” 100 Harv. L. Rev. 630 (1987); annot., Award of Damages or Costs Under 28 USCS § 1912 or Rule 38 of Federal Rules of Appellate Procedure, Against Appellant Who Brings Frivolous Appeal, 67 A.L.R. Fed. 319 (1984); annot., Sanctions, in Federal Circuit Courts of Appeals for Failure to Comply with Rules Relating to Contents of Briefs and Appendixes, 55 A.L.R. Fed. 521 (1981); annot., Dismissal of Appeal for Appellant’s Failure to Obey Court Order, 49 A.L.R.2d 1425 (1956).


text:
    Emergency Medical Services Commission of the Town of East Hartford v. Freedom of Information Commission
    (7651)
    Daly, Stoughton and Nokcott, Js.
    Argued June 9 —
    decision released August 15, 1989

      Victor R. Perpetua, commission counsel, with whom, on the brief, was Mitchell W. Pearlman, general counsel, for the appellant (defendant).

      David L. Griffith, corporation counsel, for the appellee (plaintiff).
   Stoughton, J.

The defendant, Freedom of Information Commission (FOIC), appeals from the judgment of the trial court sustaining the plaintiff East Hartford Emergency Medical Services Commission’s (EMSC) appeal and reversing the FOIC’s determination that a meeting of the EMSC was held in violation of the notice provisions of General Statutes § 1-21 (a). We find no error.

On November 4,1986, Wanda L. Franek, a member of the EMSC filed a letter of complaint with the FOIC. The letter asked the FOIC to hold a hearing to determine if the EMSC had held a meeting on October 27, 1986, in violation of the Freedom of Information Act.

The FOIC held a hearing on December 1, 1986, at which counsel for EMSC stipulated to the following: On October 27, 1986, there was a presentation by two ambulance providers in the office of the mayor of East Hartford before twenty to twenty-five people; four regular voting members of EMSC were present, identified as the chief of police, the fire chief, Marylee Hickey and Henry Genga; and four out of eight did not constitute a quorum. Counsel stated that no votes were taken, no transactions occurred, no business was transacted and there were no actions taken.

The FOIC in its decision found that EMSC is a public agency. It found that on October 27,1986, members of various municipal agencies attended a presentation made by two ambulance services in the office of the mayor. It found that EMSC is composed of nine members, that five members constitute a quorum and that four members of EMSC had attended the October 27 presentation. The FOIC further found that the absence of a quorum did not determine whether the gathering on October 27 was a “meeting” within the meaning of General Statutes § l-18a (b). The FOIC also found that the October 27 gathering was a “proceeding of a public agency to discuss or act upon a matter over which it had supervision, control, jurisdiction, or advisory power,” and that the EMSC had failed to prove that the attendance of its four members did not constitute a meeting within the meaning of § l-18a (b). The FOIC concluded that “the meeting in question was held in violation of the notice provisions of [General Statutes] § 1-21 (a).” The FOIC ordered the EMSC henceforth to comply with the requirements of § 1-21 (a) and to ask both ambulance companies to make a second presentation to the EMSC before it took any action concerning ambulance services.

The EMSC appealed the FOIC’s decision to the Superior Court. The EMSC alleged, inter alia, that the FOIC’s decision was clearly erroneous in view of the record, and that it was arbitrary, capricious and an abuse of its discretion. It asserted aggrievement, inter alia, in that the FOIC’s critical findings of fact were contrary to the record and without foundation and that the FOIC had misconstrued the definition of “meeting” contained in General Statutes § l-18a (b); that the FOIC had placed an improper burden of proof upon the EMSC and that the FOIC’s wrongful interpretation had left the plaintiff without the knowledge to comply with the Freedom of Information Act.

The trial court sustained the EMSC’s appeal. In sustaining the appeal, the trial court held that under General Statutes § l-18a (b), “a hearing or other proceeding of a public agency” required the presence of a quorum at a proceeding because if the term “meeting” applied to the assembly of less than a quorum, then the phrase “any convening or assembly of a quorum of a multimember public agency” would have no definitive meaning. We disagree.

Where the words of a statute are clear and unambiguous, courts are not free to infer a meaning other than that expressed in its plain language. Struckman v. Burns, 205 Conn. 542, 545-46, 534 A.2d 888 (1987). “Courts cannot, by construction, read into statutes provisions which are not clearly stated.” Houston v. Warden, 169 Conn. 247, 251, 363 A.2d 121 (1975).

The language of General Statutes § l-18a (b) relevant to this appeal, defines “meeting” as follows: “any hearing or other proceeding of a public agency, any convening or assembly of a quorum of a multimember public agency, and any communication by or to a quorum of a multimember public agency . . . .”

The plain language of General Statutes § l-18a (b) does not require a quorum as a necessary precondition to “any hearing or other proceeding of a public agency . . . .” The word “quorum” does not appear in the clause dealing with “any hearing or other proceeding of a public agency . . . .” The legislature did not define a meeting as any hearing or proceeding of a quorum of a public agency, as it might have done. It is clear from the definition of “public agency” in General Statutes § l-18a (a) that a public agency may consist of one member alone.

The trial court’s construction of § l-18a (b) would make the quorum requirement in that section redundant. “No word in a statute should be considered as surplusage.” Harris Data Communications, Inc. v. Heffernan, 183 Conn. 194, 197, 438 A.2d 1178 (1981). Beyond the trial court’s statutory interpretation, no reason has been cited for reading a quorum requirement into the first clause of § l-18a (b), nor are we aware of any.

Nevertheless, we are unable to set aside the trial court’s judgment because there was an insufficient factual basis for the FOIC’s finding that the presentation was a “proceeding of a public agency to discuss or act upon a matter over which it had supervision, control, jurisdiction or advisory power.” “ 'Where the trial court reaches a correct decision but on mistaken grounds, this court has repeatedly sustained the trial court’s action if proper grounds exist to support it.’ Morris v. Costa, 174 Conn. 592, 597-98, 392 A.2d 468 (1978).” Herrmann v. Summer Plaza Corporation, 201 Conn. 263, 274, 513 A.2d 1211 (1986).

Beyond the stated fact that the presentation was given by two ambulance services, the FOIC in its decision finds no facts that would support its conclusion that this was a “proceeding of a public agency.” A review of the record also fails to disclose any such support.

The record reveals that twenty to twenty-five people, including the mayor, attended the presentation; four of these people were members of the EMSC. At the FOIC hearing, there was no evidence that any commission business was conducted at the presentation; in fact, the only remarks on the subject indicated that no such activity had occurred. There was no evidence as to who had planned or coordinated the presentation or who had issued the invitations. The members of the EMSC who attended the presentation were not present at the FOIC hearing to testify, nor was there any testimony from anyone who had attended the presentation. The record fails also to reveal exactly what was presented by the ambulance services, how it was presented, how long it took, or how the presentation was conducted. The arguments of counsel before a hearing officer are not evidence upon which findings can be based. New Haven v. Freedom of Information Commission, 205 Conn. 767, 775, 535 A.2d 1297 (1988). While a newspaper article concerning the presentation was in the record, it sheds no light on whether it was a “proceeding” of the EMSC. In light of this record, it was clearly erroneous for the FOIC to conclude that the presentation was a “proceeding” within the meaning of General Statutes § l-18a (b). Consequently, there is no basis for the FOIC’s conclusion that the commission violated General Statutes § l-18a (b).

There is no error.

In this opinion the other judges concurred.


text:
    Edwin H. Hochberg et al. v. Zoning Commission of the Town of Washington et al.
    (7162)
    Borden, Stoughton and Norcott, Js.
    Argued April 18 —
    decision released August 15, 1989

      John W. Pickard, with whom, on the brief, was David M. Cusick, for the appellants (plaintiffs).

      Thomas P. Byrne, for the appellee (named defendant).

      Robert P. Hanahan, for the appellee (defendant Woodland Associates, Inc.).
   Borden, J.

The plaintiffs appeal from the judgment of the trial court dismissing their zoning appeal for lack of aggrievement. The dispositive issue involves the application of the recent Supreme Court case of Caltabiano v. Planning & Zoning Commission, 211 Conn. 662, 560 A.2d 975 (1989), to the facts of this case. We conclude that Caltabiano controls this case, and we find error.

The facts are undisputed. The defendant Woodland Associates, Inc. (Woodland), secured from the named defendant, the zoning commission of the town of Washington (commission), a special permit to construct a condominium complex on Woodland’s forty-nine acre parcel located on the south side of Route 202. The south shoulder of Route 202 consists of a strip of grassy, unpaved land approximately forty-five feet wide. Woodland owns the fee to approximately twenty-seven feet of that shoulder. The plaintiffs own land on the north side of Route 202. The distance from the southwest corner of the plaintiffs’ property to the northeast corner of Woodland’s portion of the unpaved south shoulder is between eighty and eighty-five feet. The distance from the plaintiffs’ property to the edge of Woodland’s property beyond the south shoulder is approximately 108 feet.

The plaintiffs appealed to the trial court from the commission’s action granting a special permit to Woodland. The trial court concluded that the plaintiffs were not statutorily aggrieved as persons “owning land which ... is within a radius of one hundred feet of any portion of the land involved in” the decision of the commission, within the meaning of General Statutes § 8-8 (a), and dismissed their appeal. The court reasoned, and the defendants argue on appeal, that the shoulder of Route 202 was not “any portion of the land involved in” the commission’s decision because the shoulder was not part of Woodland’s application and was not part of the site plan for the condominium complex, and because the commission did not exercise jurisdiction over the shoulder and its decision did not extend to that area.

The plaintiffs claim that the court erred because it misconstrued General Statutes § 8-8 (a). We agree.

It has long been the law, and the parties do not dispute, that a highway easement over land owned in fee by a private party does not eliminate that party’s fee ownership. See Ruggiero v. East Hartford, 2 Conn. App. 89, 97, 477 A.2d 668 (1984), and the cases cited therein. Nor do the parties dispute that Woodland owned the south highway shoulder as part of its forty-nine acre parcel. In Caltabiano v. Planning & Zoning Commission, supra, 663, our Supreme Court held that the term “land involved” in General Statutes § 8-8 (a) “concerns the complete tract of land owned by the applicant rather than the discrete part of it containing the activity considered in the decision of the agency.” Thus, the south shoulder of Route 202 was a portion of the land involved in the commission’s decision. The plaintiffs in this case were, therefore, statutorily aggrieved by the commission’s decision, because they own land within one hundred feet of some portion of the land involved in that decision.

There is error, the judgment is set aside and the case is remanded for further proceedings according to law.

In this opinion the other judges concurred.

       The state owns the fee to the paved portion of Route 202, and has a highway easement over the entire shoulder, including Woodland’s twenty-seven feet.

       General Statutes § 8-8 (a) provides in pertinent part: “(a) Any person or persons severally or jointly aggrieved by any decision of said [zoning] board [of appeals], or any person owning land which abuts or is within a radius of one hundred feet of any portion of the land involved in any decision of said board . . . may . . . take an appeal to the superior court . . . . ” General Statutes § 8-10 makes this section applicable to appeals from zoning commissions, as in this case.

       The plaintiffs do not claim to be abutting owners, because they do not dispute that the state owns the fee to the paved portion of the highway. They also concede that they were not classically aggrieved.

       This conclusion renders it unnecessary to consider the plaintiffs’ alternative claim of error, namely, that as a factual matter the south shoulder of Route 202 was a part of Woodland’s application and site plan, and that the commission’s decision did extend to that area.


author: Spallone, J.

text:
    William Silverman et al. v. City of New Haven
    (7668)
    Dupont, C. J., Borden and Spallone, Js.

      Argued June 6 —
    decision released August 15, 1989

      Benson A. Snaider, with whom, on the brief, was Britta Schneider, for the appellants (plaintiffs).

      Edward R. Mattison, deputy corporation counsel, for the appellee (defendant).
   Spallone, J.

The plaintiffs appeal from the judgment of the trial court dismissing their administrative appeal in which they had sought review of the denial by the New Haven department of real estate services of relocation benefits under General Statutes §§ 8-266 through 8-282, the Uniform Relocation Assistance Act (URA). The plaintiffs claim that the trial court erred (1) in dismissing the action on the ground that it was without jurisdiction to hear the appeal because the plaintiffs had failed to exhaust their administrative remedies, and (2) in construing § 8-273-1 of the regulations of Connecticut state agencies as imposing a limitation of action with regard to the entitlement of displaced persons to relocation assistance pursuant to General Statutes § 8-268.

The trial court found the following facts. On August 18, 1983, the defendant city of New Haven, through the department of real estate services (DRES), acquired, by eminent domain, the real estate known as 1022-1024 Chapel Street in New Haven. At that time, the plaintiffs were tenants conducting their business at 1022-1024 Chapel Street and were in possession of the premises under the terms of a lease that was to terminate on April 30,1988. The lease contained a condemnation clause providing that the acquisition of the premises by eminent domain would terminate the lease.

The defendant allowed the plaintiffs to continue in possession of the premises on a month-to-month basis without benefit of a written léase. On or about July 9, 1984, the defendant conveyed the premises to the Schiavone Realty and Development Corporation (Schiavone), which in turn also allowed the plaintiffs to continue in possession on a month-to-month basis, but at an increased rent.

On November 17,1986, the plaintiffs informed DRES in writing that Schiavone had commenced a summary process action against the plaintiffs that had been resolved by a stipulated judgment allowing the plaintiffs to remain in possession of the premises until March 1, 1987. In the letter, the plaintiffs requested relocation assistance from the defendant. By letter dated January 15,1987, DRES .informed the plaintiffs that they wére ineligible for relocation assistance. Upon the plaintiffs’ request for reconsideration and a hearing, a hearing was held on February 23, 1987, before the director of DRES. DRES refused to grant the plaintiffs’ application for relocation assistance. The plaintiffs did not appeal the denial by DRES of the requested relief to the state commissioner of housing (commissioner), as provided by General Statutes § 8-278 and § 8-273-1 of the regulations of Connecticut state agencies. Instead, the plaintiffs appealed the decision of DRES directly to the Superior Court.

The defendant moved for summary judgment on the ground that the plaintiffs had failed to exhaust their administrative remedies. In order to oppose the defendant’s motion for summary judgment, the plaintiffs submitted to the trial court an affidavit given by Anne Brennan Carroll, a consultant to the department of housing, legal section. In the affidavit, Carroll stated that she was familiar with the relocation regulations of the department of housing and that the commissioner of housing “will not entertain a relocation assistance appeal submitted after 18 months from the date of acquisition of the real property.” The affidavit further states: “Therefore, if the city of New Haven acquired premises by eminent domain on August 18, 1983, the tenant’s right to appeal to the commissioner of housing any action of the city of New Haven regarding relocation assistance from which they were aggrieved would have expired in any event on February 18,1985, even though the tenant had not been displaced from the premises on that date. In other words, according to the regulations, if premises were acquired by eminent domain by the City of New Haven on August 18, 1983, the Commissioner of Housing would not entertain an appeal from a denial of relocation benefits by the City of New Haven claimed as a result of a displacement caused by such taking after February 18,1985.” The trial court granted the defendant’s motion for summary judgment.

In this appeal, the dispositive question is whether the trial court properly determined, that the plaintiffs had failed to exhaust their administrative remedies. We agree with the trial court.

The plaintiffs concede that they failed to appeal the adverse ruling of DRES to the commissioner, in accordance with General Statutes § 8-278. It is a well settled principle of administrative law that if an adequate administrative remedy exists, it must be exhausted before the Superior Court will obtain jurisdiction to act in the matter. General Statutes § 4-183; Greenwich v. Liquor Control Commission, 191 Conn. 528, 541, 469 A.2d 382 (1983); Connecticut Life & Health Ins. Guaranty Assn. v. Jackson, 173 Conn. 352, 357, 377 A.2d 1099 (1977). The exhaustion doctrine implicates subject matter jurisdiction. Pet v. Department of Health Services, 207 Conn. 346, 351, 542 A.2d 672 (1988). Once brought to the attention of the court, the question of jurisdiction must be decided, and, when the court determines that it lacks jurisdiction, it is bound to dismiss the case. Cahill v. Board of Education, 198 Conn. 229, 238, 502 A.2d 410 (1985).

The plaintiffs argue that, because they were not “displaced” until long after the eighteen month period provided by the regulation for an appeal had elapsed, they had no practical or adequate administrative remedy that would require exhaustion. Accordingly, they argue that they should have been permitted to appeal directly to the Superior Court.

There is no question that the law recognizes exceptions to the exhaustion doctrine in situations in which resort to the administrative remedy available to a party would be futile or inadequate. See, e.g., Griswold v. Union Labor Life Ins. Co., 186 Conn. 507, 519, 442 A.2d 920 (1982); Connecticut Mobile Home Assn., Inc. v. Jensen’s, Inc., 178 Conn. 586, 589, 424 A.2d 285 (1979); State ex rel. Golembeske v. White, 168 Conn. 278, 282, 362 A.2d 1354 (1975); Bianco v. Darien, 157 Conn. 548, 554, 254 A.2d 898 (1969). The plaintiffs state no persuasive reason, however, why they could not have utilized the review procedure provided by General Statutes § 8-278 and § 8-273-1 of the regulations of Connecticut state agencies for review by the commissioner of the agency action in question. The plaintiffs essentially urge this court to permit bypass of the provisions establishing a procedure for administrative review on the basis that the commissioner, had he been duly presented with an appeal, would have refused review on the ground that the plaintiffs had not timely filed the appeal. The possibility that the commissioner might have so ruled, however, does not render resort to the review procedure necessarily futile or inadequate. See Doe v. Heintz, 204 Conn. 17, 36-37, 526 A.2d 1318 (1987); Sullivan v. State, 189 Conn. 550, 558-59, 457 A.2d 304 (1983). We note that the affidavit submitted by the plaintiffs in opposition to the defendant’s motion for summary judgment does not establish that appealing to the commissioner would have been futile. The plaintiffs apparently first obtained the opinion expressed in this affidavit after the defendant filed its motion for summary judgment. There is no indication that the plaintiffs informally obtained an opinion from the commissioner regarding the feasibility of an administrative appeal and then relied on that opinion in appealing to the Superior Court. Even if the plaintiffs had informally obtained such an opinion, however, that action would not have relieved them of the duty to comply with the applicable statute and regulation by formally filing an appeal with the commissioner. In the event that the commissioner formally refused to entertain such an appeal, judicial review of that decision would, of course, be available. We cannot assume, however, on the strength of the affidavit submitted by the plaintiffs, that it was inevitable that the commissioner would have denied review had the plaintiffs formally filed an appeal. Under these circumstances, we do not think the affidavit submitted by the plaintiffs establishes that resort to the administrative review process would have been futile. There are good reasons for requiring that parties exhaust available administrative remedies before seeking judicial review. Foremost among those reasons is the policy of fostering an orderly process of administrative adjudication and judicial review in which a reviewing court will have the benefit of the agency’s findings and conclusions. See Pet v. Department of Health Services, supra. Since we are not aware of any legal barrier to the presentation of the plaintiffs’ claim to the commissioner, we cannot assume that recourse to that procedure would necessarily have been futile or inadequate.

General Statutes § 8-278 and § 8-273-1 of the regulations of Connecticut state agencies set forth a procedure for obtaining review of adverse agency action. The right to appeal from the decision of an administrative agency exists only under statutory authority. Royce v. Freedom of Information Commission, 177 Conn. 584, 587, 418 A.2d 939 (1979); Newtown v. Department of Public Utility Control, 3 Conn. App. 416, 419, 488 A.2d 1286 (1985). When a statute creates a benefit and provides for a right of appeal from a decision of an administrative agency authorized to grant the benefit, such right of appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created. Newtown v. Department of Public Utility Control, supra. Moreover, because the validly enacted regulations of an administrative agency carry the full force and effect of statutory law; Griffin Hospital v. Commission on Hospitals & Health Care, 200 Conn. 489, 497, 512 A.2d 199 (1986); Nationwide Ins. Co. v. Gode, 187 Conn. 386, 400, 446 A.2d 1059 (1982); Ziperstein v. Tax Commissioner, 178 Conn. 493, 497, 423 A.2d 129 (1979); such compliance includes abiding by validly adopted regulations governing the administrative appeal process. “ ‘The doctrine of exhaustion is grounded in a policy of fostering an orderly process of administrative adjudication and judicial review in which a reviewing court will have the benefit of the agency’s findings and conclusions.’ Concerned Citizens of Sterling v. Sterling, [204 Conn. 551, 557, 529 A.2d 666 (1987)]; Connecticut Life & Health Ins. Guaranty Assn. v. Jackson, [173 Conn. 352, 358-59, 377 A.2d 1099 (1977)]. ‘The doctrine of exhaustion “furthers the salutory goals of relieving the courts of the burden of deciding questions entrusted to an agency ... in advance of possible judicial review.” Watergate II Apartments v. Buffalo Sewer Authority, 46 N.Y.2d 52, 57, 385 N.E.2d 560, 412 N.Y.S.2d 821 (1978).’ Cahill v. Board of Education, [198 Conn. 229, 238, 502 A.2d 410 (1985)].” Pet v. Department of Health Services, supra. The plaintiffs’ choice to bring their appeal directly to the Superior Court, without first resorting fully to the administrative review process provided for by statute and regulation, cannot be sustained.

Accordingly, we agree with the trial court that the plaintiffs failed to exhaust an available administrative remedy and hold that the court did not err in its decision to dismiss the plaintiff’s administrative appeal on jurisdictional grounds.

There is no error.

In this opinion the other judges concurred.

       “[General Statutes] Sec. 8-278. appeals to commissioners. Any person or business concern aggrieved by any agency action, concerning eligibility for relocation payments authorized by this chapter, may appeal such determination to the commissioner of transportation in the case of relocation made necessary by a transportation project or to the commissioner of housing in the case of relocation made necessary by any other state agency program or project. The commissioner of transportation and the commissioner of housing shall have the power to certify official documents and to issue subpoenas to compel the attendance of witnesses or the production of books, papers, correspondence, memoranda or other records deemed necessary as evidence in connection with an appeal pursuant to this section. If any person to whom such subpoena is issued fails to appear, or having appeared refuses to give testimony or fails to produce the evidence required, the superior court, upon application of the attorney general representing the appropriate commissioner, shall have jurisdiction to order such person to appear or to give testimony or produce the evidence required, as the case may be. The commissioner of transportation, or a hearing officer duly appointed by him, or the commissioner of housing, or a hearing officer duly appointed by him, shall have the power to administer oaths and affirmations in connection with an appeal pursuant to this section.”

       Section 8-273-1 of the regulations of Connecticut state agencies provides in pertinent part: “(a) Any person aggrieved as to the provisions of Chapter 135 of the General Statutes of Connecticut, as revised, should first request reconsideration by the State agency of the decision initially received as to relocation assistance. If the person aggrieved is not satisfied by the decision rendered by the State agency upon reconsideration, he then may request a hearing before the Relocation Advisory Assistance Appeals Board, (b) The request must be submitted in writing to the State agency causing the displacement within eighteen months after the date of acquisition of real property by the State agency causing the displacement by land acquisition programs . . . .”

       We express no view on the issue of whether an appeal by the plaintiffs to the commissioner would have been, or will be, considered untimely. That question, which can be answered only by interpreting agency regulations, is best left to the commissioner in the first instance and is not, in any event, properly before us in this appeal.


author: Per Curiam.

text:
    Frank E. Fonsworth, Jr., et al. v. Steven B. Sudol et al.
    (7176)
    O’Connell, Stoughton and Nokcott, Js.
    Argued June 14 —
    decision released August 15, 1989

      Susan K. Smith, with whom was Hubert J. Santos, for the appellants (plaintiffs).

      Grant H. Miller, Jr., with whom, on the brief, was John D. Palermo, for the appellee (defendant Charles Mitchell).
   Per Curiam.

The plaintiffs appeal from a judgment rendered in favor of the defendant Charles Mitchell in a negligence action arising out of a motor vehicle collision. The jury could reasonably have found that the plaintiff Frank E. Fonsworth, Jr., was a passenger in a van operated by the defendant Charles Mitchell (hereinafter the defendant) when it was hit from the rear by a vehicle operated by the named defendant, Steven B. Sudol, on Main Street in Hartford. Immediately before the collision, both vehicles had been stopped at a traffic light. When the light turned green, the vehicles proceeded through the intersection. Intending to pull to the right curb, the defendant activated his right turn signal and slowed down. The Sudol vehicle struck the van while it was still moving, and the plaintiff Frank E. Fonsworth, Jr., was injured. The case went to trial, and the jury returned a defendant’s verdict.

The plaintiffs’ appeal raises four grounds of error, three relating to jury instructions and one pertaining to the defendant’s examination of Sudol as a hostile witness. We find no error.

We have carefully examined the jury instructions in light of the record, transcript, briefs and oral argument. We conclude that they meet the familiar standard that jury instructions need not be perfect or exhaustive as long as, considered in their entirety, they are adapted to the issues, legally correct, sufficiently clear to guide the jury and fairly present the case without injustice to either party. State v. Phillips, 17 Conn. App. 391, 394, 552 A.2d 837 (1989).

The plaintiffs’ remaining claim of error attacks the trial court’s ruling that allowed the defendant to treat Sudol as a hostile witness, thereby permitting leading questions on direct examination. It is axiomatic that trial courts have broad discretion to allow leading questions on direct examination depending upon the circumstances of the individual case. Wright v. Blakeslee, 102 Conn. 162, 168, 128 A. 113 (1925). We point out that up to a month before trial, Sudol had been a co-defendant and a party whose interest was adverse to that of the defendant. Furthermore, Sudol’s deposition disclosed that he would have been a difficult witness to éxamine. In view of these facts, we conclude that the trial court did not abuse its discretion.

The plaintiffs have the burden, as the appellants, to show that there was error in the judgment from which the appeal was taken. Janet v. Scarpetti, 17 Conn. App. 825, 552 A.2d 1225 (1989); B. Holden & J. Daly, Connecticut Evidence § 60i (1988). We find that the plaintiffs have not met their burden.

There is no error.

       The complaint included a second count on behalf of Gwendolyn Fonsworth, the wife of Frank E. Fonsworth, Jr., seeking damages for loss of consortium.

       The plaintiffs initially brought suit against both the defendant Charles Mitchell and Steven B. Sudol. Approximately one month before trial, the case against Sudol was settled and the plaintiffs withdrew their complaint against him.