text:
    HOLLY WOLF v. COMMISSIONER OF MOTOR VEHICLES
    (AC 21366)
    Lavery, C. J., and Schaller and Peters, Js.
    Argued February 26
    officially released May 28, 2002

      Priscilla J. Green, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellant (defendant).

      Donald R. Beebe, with whom were Kristi Avery and, on the brief, Susan B. Carr, for the appellee (plaintiff).
   Opinion

PETERS, J.

In this administrative appeal, the principal issue is whether the trial court properly set aside the suspension of a motor vehicle operator’s license. The suspension arose out of the alleged refusal of the operator to submit to a chemical alcohol test subsequent to an arrest for operating a motor vehicle while under the influence of alcohol or drugs. Without hearing additional evidence, the court set the license suspension aside for lack of substantial evidence to support the finding of the administrative hearing officer. We reverse the judgment of the trial court.

The plaintiff, Holly Wolf, appealed to the trial court to contest the decision of .the defendant commissioner of motor vehicles to suspend her motor vehicle operator’s license for one year. The defendant imposed this sanction because of the plaintiffs refusal to submit to a Breathalyzer test in accordance with General Statutes § 14-227b.

The trial court reversed the defendant’s decision. Although it concluded that there was substantial evidence to support the finding that the plaintiff had been driving under the influence of alcohol or drugs, it concluded that there was not substantial evidence to support the finding that she had refused to take the test. Accordingly, the court set the plaintiffs license suspension aside. The defendant has appealed.

The record before the hearing officer reveals that the suspension of the plaintiffs motor vehicle operator’s license arose out of the following events. On January 4, 2000, after being involved in a two car accident, the plaintiff was arrested for driving under the influence of alcohol or drugs. At the scene of the accident, the arresting officer detected a strong odor of alcohol on the plaintiffs breath. The officer asked the plaintiff to look at his finger and to follow its movement, but the plaintiff was unable to do so. When the officer asked the plaintiff to exit the vehicle, the plaintiff swayed and had to extend her arm for balance. The officer arrested the plaintiff and transported her to police headquarters.

At headquarters, the officer informed the plaintiff of her rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), and of the mandatory test to determine her blood alcohol content. The plaintiff initially agreed to the test. The officer warned the plaintiff not to place anything in her mouth and attempted to administer the Breathalyzer test. At first, the plaintiff was unsuccessful in blowing sufficient breath for the test to register her blood alcohol content. The officer then noticed that the plaintiff had an object in her mouth, which he discovered was Nicorette chewing gum. He instructed her to remove it and waited thirty minutes to attempt to administer the next test.

The plaintiff then stated that she was unsure whether she wanted to take the test. The officer told her that she was stalling and warned her that her unwillingness would be considered a refusal. She indicated that she wanted to contact her attorney. The officer reminded her that she already had been given an opportunity to do so. The plaintiff again stated that she was unsure about taking the test. The officer informed her that he considered all of her actions a refusal and completed the driving under the influence processing.

On January 13, 2000, a notice of operator’s license suspension for refusing to take the chemical alcohol test was sent to the plaintiff. The plaintiff requested an administrative hearing, which was held on February 25, 2000.

At the hearing, the plaintiff testified that, on the night of the accident, she had smoked fifteen cigarettes and five or six cigars. The plaintiff testified that she was coughing while she blew into the machine. The plaintiff also introduced into evidence a letter from her physician stating that the plaintiffs difficulty in performing on the tests “could have been due to: (1) [a] cute severe bronchospasm triggered by the cigars/cigarettes she smoked immediately prior to her accident; (2) coughing triggered by the required forced expiratory maneuver; [and] (3) acute anxiety in encountering law enforcement authorities.” The police report completed by the arresting officer was admitted into evidence, but the officer did not testify at the hearing.

The hearing officer affirmed the suspension and made the following findings of fact and conclusions of law: (1) the police officer had probable cause to arrest the plaintiff for a violation specified in § 14-227b (b); (2) the plaintiff was placed under arrest; (3) the plaintiff refused to submit to a chemical alcohol test; and (4) the plaintiff was operating the vehicle. Accordingly, the hearing officer ordered the suspension of the plaintiffs operator’s license for a period of one year. The plaintiff appealed to the Superior Court.

On appeal to the trial court, the plaintiff challenged the hearing officer’s findings that she had refused to submit to the test and that she had been operating the motor vehicle. The court rejected the plaintiffs second challenge. With respect to the first, however, it held that there was not substantial evidence in the record to support the finding that the plaintiff had refused to take the test. The court sustained the plaintiffs appeal on that basis.

In its memorandum of decision, the court concluded that because the plaintiff did not refuse expressly to submit to the Breathalyzer test, her actions did not constitute a refusal to take the test under § 14-227b (c). The court recognized that the officer had filed a written report in which he had stated that the plaintiffs failure to complete the test was due to her “inabihty/unwillingness.” That report was not substantial evidence, according to the court, because it was ambiguous and could have been clarified only if the officer had testified at the commission’s hearing.

In this appeal, the defendant claims that the court improperly held that the evidence in the record did not support the hearing officer’s finding that the plaintiff had refused to submit to a Breathalyzer test. The plaintiff not only disputes the defendant’s claim but also seeks reversal of the court’s conclusion with respect to her operation of the motor vehicle.

We review the issues raised in this appeal in accordance with the limited scope of judicial review afforded by the Uniform Administrative Procedure Act (UAPA), General Statutes § 4-166 et seq. See Dolgner v. Alander, 287 Conn. 272, 280, 676 A.2d 865 (1996); Buckley v. Muzio, 200 Conn. 1, 3, 509 A.2d 489 (1986). In reviewing an administrative agency decision, a trial court must determine whether the agency’s findings of basic fact are supported by substantial evidence in the record and whether the conclusions drawn from those facts are reasonable. Murphy v. Commissioner of Motor Vehicles, 254 Conn. 333, 343, 757 A.2d 561 (2000). “Neither this court nor the trial court may retry the case or substitute its own judgment for that of the administrative agency on the weight of the evidence or questions of fact. . . . Our ultimate duty is to determine, in view of all of the evidence, whether the agency, in issuing its order, acted unreasonably, arbitrarily, illegally or in abuse of its discretion.” (Internal quotation marks omitted.) Id.

The defendant claims that the trial court improperly determined that there was not substantial evidence in the record to support the hearing officer’s finding that the plaintiff refused to submit to a Breathalyzer test. We agree.

The determination of whether the plaintiffs actions constituted a refusal to submit to a Breathalyzer test is a question of fact for the hearing officer to resolve. Pizzo v. Commissioner of Motor Vehicles, 62 Conn. App. 571, 581, 771 A.2d 273 (2001); Altschul v. Salinas, 53 Conn. App. 391, 397, 730 A.2d 1171, cert. denied, 249 Conn. 931, 761 A.2d 751 (1999). Judicial review of administrative fact-finding under the UAPA is governed by the “substantial evidence” rule. Dolgner v. Alander, supra, 237 Conn. 281; see also General Statutes § 4-183 (j). “An administrative finding is supported by substantial evidence if the record affords a substantial basis of fact from which the fact in issue can be reasonably inferred.” (Internal quotation marks omitted.) Dolgner v. Alander, supra, 281. Such findings of fact or inferences reasonably drawn therefrom must be upheld unless the court finds them to be clearly erroneous in view of the whole record or arbitrary or capricious and, therefore, an abuse of the hearing officer’s discretion. General Statutes § 4-183 (j).

In determining that there was insufficient evidence to support the finding of refusal, the court relied on the absence of an express refusal by the plaintiff. The court opined that the plaintiffs conduct, which included lying to the officer, stalling, stating repeatedly that she was unsure about taking the test and requesting to see an attorney, did not constitute a refusal.

We previously have held, however, that a refusal under § 14-227b need not be express. “Refusal to take a breath test can occur through conduct as well as an expressed refusal.” Tompkins v. Commissioner of Motor Vehicles, 60 Conn. App. 830, 832, 761 A.2d 786 (2000); see also State v. Corbeil, 41 Conn. App. 7, 19, 674 A.2d 454, cert. granted on other grounds, 237 Conn. 919, 676 A.2d 1374 (1996) (appeal dismissed September 18,1996). It was therefore not improper for the hearing officer to consider evidence of the plaintiffs conduct in determining whether the plaintiff had in fact refused to submit to the test.

The trial court also relied on the results from two Breathalyzer tests in the record to show that the plaintiff had not refused to take the test. Because these results appeared to be contradictory to the hearing officer’s finding of refusal, the court concluded that the finding was not supported by substantial evidence.

We are not persuaded for two reasons. First, the existence of contradictory evidence and the possibility of drawing two inconsistent conclusions from the evidence does not preclude an administrative agency’s finding from being supported by substantial evidence. Altschul v. Salinas, supra, 53 Conn. App. 397-98, citing Schallenkamp v. DelPonte, 229 Conn. 31, 41, 639 A.2d 1018 (1994). The possibility that the trial court could have drawn a conclusion different from that drawn by the hearing officer does not necessarily mean that the evidence was insufficient to support the hearing officer’s conclusion.

Second, the reports showing the results of two unsuccessful tests are not necessarily inconsistent with the hearing officer’s conclusion that the plaintiff ultimately refused to submit to a test. In her subordinate findings, the hearing officer found that there were two attempts to take a breath sample from the plaintiff. The first attempt, though insufficient, was not relevant to a finding of refusal because the plaintiff blew into the test apparatus. The hearing officer stated that the relevant sample was the second sample which, according to the police report, was attempted thirty minutes after the first sample. The hearing officer found that the plaintiff had refused to assent to that second sample. The reports in the record reveal that tests were taken at 10:48 p.m. and at 10:56 p.m. The 10:56 p.m. report indicates that, because the plaintiff had in her mouth an object, previously identified as Nicorette chewing gum, they would wait approximately thirty minutes before attempting another test. The record does not contain results from any subsequent tests. It is, therefore, not unreasonable to conclude that the two tests in the record were together evidence of the first attempt. The absence of any reports of subsequent tests supports the hearing officer’s conclusion that the plaintiff refused to assent to a second test.

Finally, the trial court relied on Bialowas v. Commissioner of Motor Vehicles, 44 Conn. App. 702, 714-15, 692 A.2d 834 (1997). In Bialowas, we held that the record contained insufficient evidence to support the commissioner’s finding that the plaintiff had refused to submit to a Breathalyzer test. Id., 715.

There is, however, a crucial distinction between Bialowas and the present case. The evidence at issue in Bialowas was a police report and narrative supplement that contained conclusory statements, without supporting details, that the operator had refused the test by failing to provide an adequate breath sample. We concluded that it was improper for the hearing officer to credit the police officer’s conclusory statements without some supporting details about the police officer’s observations. Id., 716-17. In the present case, however, the record is not barren of details. The police report contained detailed information about the officer’s observations of the plaintiffs conduct. The officer recorded the plaintiffs exact actions and statements. The hearing officer had sufficiently detailed information to support the findings that she made.

We are persuaded that the absence of an express refusal by the plaintiff to take a Breathalyzer test does not require the conclusion that there is not substantial evidence in the record, overall, to support the hearing officer’s finding that such a refusal had occurred. In concluding otherwise, the trial court improperly assumed the role of fact finder and, thereby, exceeded the limited scope of judicial review authorized by the UAPA. We conclude that there was substantial evidence in the record to support the hearing officer’s finding of refusal to take the Breathalyzer test.

The judgment is reversed and the case is remanded to the trial court with direction to render judgment affirming the decision of the commissioner.

In this opinion the other judges concurred.

       According to General Statutes § 14-227b (b), the test employed can be a blood, breath or urine test at the option of the police officer. The present case involves a breath test.

       Printed reports of test results from two Breathalyzer tests were included in the record. On the report of the first test, which was taken at 10:48 p.m., were the typewritten words, “Invalid test; Subject refused to continue,” and the handwritten words, “Blew into machine.” On the report of the second test, which was taken at 10:56 p.m., were the typewritten words, “Insufficient sample,” and the handwritten words, “Object in mouth, Obs. for approx. 30 [minutes].”

       According to the police report, the actions that he considered to be a refusal included the plaintiffs evasive answers and lying to the officer at the scene of the accident, the plaintiffs ‘'inabihty/unwillingness” to complete the Breathalyzer test and the plaintiffs intentional stalling for time.

       In support of these findings, the hearing officer made the following subordinate findings: “With respect to the refusal issue, guidance is taken from Rhodes v. Salinas, [Superior Court, judicial district of New Britain, Docket No. CV 99 0495302S (September 13, 1999) (25 Conn. L. Rptr. 390)]. The [plaintiff] attempted to provide the first sample and was not able to provide sufficient breath. This may or may not have been due to her ‘smoking binge,’ as testified to. The first test is not in issue with respect to the refusal, the second test is. After the first sample, the [plaintiff] began to delay the process, waivered whether to contact an attorney (despite being given an earlier opportunity) and would not assent to the second sample. The officer advised her that her delaying as well [as] her untruthfulness would be taken as a refusal, and she declined to assent to the second sample.

        “At the hearing, the [plaintiff] testified to her binge smoking and medical inability to provide a sample. The [plaintiff] also produced a letter from a physician, which offers several possibilities as to an inability to provide sufficient breath. These are not persuasive as to the second sample, as the [plaintiff] never advised the officer that she had a medical condition that would prevent her performance of the breath test.
      “The police officer properly deemed the [plaintiffs] delaying tactics as a refusal.”

       General Statutes § 4-183 Q) provides in relevant part: “The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court shall affirm the decision of the agency unless the court finds that substantial rights of the person appealing have been prejudiced because the administrative findings, inferences, conclusions, or decisions are . . . (5) clearly erroneous in view of reliable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. If the court finds such prejudice, it shall sustain the appeal and, if appropriate, may render a judgment ... or remand the case for further proceedings. ...”

       See footnote 4.

       The plaintiff claims that, even if there was substantial evidence to support the finding of refusal, the court improperly upheld the hearing officer’s finding that the plaintiff had been operating the motor vehicle. We first note that the plaintiff should have raised this claim as a cross appeal pursuant to Practice Book § 61-8. Although not obligated to address this claim, we nonetheless express our disagreement.
      In its memorandum of decision, the trial court relied on Murphy v. Commissioner of Motor Vehicles, supra, 254 Conn. 333. In that case, our Supreme Court stated that “there is no requirement that the fact of operation be established by direct evidence. . . . [SJufficent evidence . . . may be found where the totality of the circumstances existing at the time of the plaintiff s arrest support[s] [such a finding] . . . .” (Internal quotation marks omitted.) Id., 345.
      Reciting the relevant circumstances in the present case, the trial court indicated that “the record reveals the persons at the accident scene were directed by the officer to return to their cars. The plaintiff returned to her car and she was the only one in the car. She told the officer that at that time she was returning from work. In the officer’s accident report, he identified the plaintiff as the driver of her vehicle.” like the trial court, we axe persuaded that there was substantial evidence that the plaintiff had been operating her motor vehicle. The court, therefore, properly upheld the hearing officer’s finding of motor vehicle operation.


source: Caselaw Access Project

author: LAVERY, C. J.

license: Public Domain

text:
    ROBERT I. FARRIOR ET AL. v. ZONING BOARD OF APPEALS OF THE BLACK POINT BEACH CLUB ASSOCIATION
    (AC 21358)
    Lavery, C. J., and Foti and Mihalakos, Js.
    Argued March 18
    officially released May 28, 2002

      Theodore A. Harris, for the appellants (plaintiffs).

      Edward B. O’Connell, with whom, on the brief, was Elisa Valentin, for the appellees (defendant).
   Opinion

LAVERY, C. J.

The plaintiffs, Robert I. Farrior and Carol F. Farrior, appeal from the judgment of the trial court upholding the decision of the defendant, Black Point Beach Club Association zoning board of appeals (board), that sustained the action of the association’s zoning official in issuing the plaintiffs a cease and desist order. The plaintiffs claim on appeal that the court improperly concluded that the board did not abuse its discretion when it interpreted the association regulation that defined “mobile home” as including “motor homes,” such as that owned by the plaintiffs and stored on their property. We agree and reverse the judgment of the trial court.

The following facts and procedural history are relevant to the issue on appeal. Black Point Beach Club Association is a shoreline community located in East Lyme. Pursuant to the authority conferred by the General Statutes and a special act' of the legislature, it has zoning regulations and authorities distinct from those of the municipality. Those regulations disallow the presence of “mobile homes” on residential lots within the community.

At the August 1, 1998 meeting of the association’s zoning commission, its zoning official “advised the commission of an issue concerning the storage of motor homes on lots in the residence district.” According to its minutes, “[t]he commission reviewed the definition in the regulations concerning ‘mobile homes’ and determined that motor homes meet the same definition and are, therefore, not permitted under the regulations.”

On August 21,1998, the zoning official issued a cease and desist order to the plaintiffs regarding the motor home they had recently purchased and were storing on their property. On September 18, 1998, the plaintiffs appealed from the official’s action to the board. On September 24, 1998, the association sought the advice of counsel regarding the meaning of the applicable regulation. On October 29,1998, counsel, while acknowledging that the meaning of the regulation was arguable, opined that the regulatory definition of “mobile homes” encompassed motor homes also. On October 31, 1998, the board held a public hearing on the plaintiffs’ appeal.

At the appeal, the plaintiffs argued that the item in question was a motor home or recreational vehicle, rather than a mobile home, and that storing such an item was not disallowed by the regulations. They claimed that the item in question did not meet the definition of “mobile home” in the zoning regulations, nor did it qualify under definitions provided in the General Statutes, dictionaries or encyclopedias. They argued that mobile homes and motor homes were entirely different and distinct items of property, and that if the association wanted to ban both from residential areas, it needed to amend the regulations so as to make that rule clear to residents. At the conclusion of the hearing, the board voted to sustain the zoning official’s action.

Thereafter, the plaintiffs appealed from the board’s decision to the Superior Court. After concluding that the board’s action was not arbitrary, illegal or in abuse of its discretion, the court denied the plaintiffs’ appeal. This appeal followed.

We first set forth our standard of review. “Generally, it is the function of a zoning board ... to decide within prescribed limits and consistent with the exercise of [its] legal discretion, whether a particular section of the zoning regulations applies to a given situation and the manner in which it does apply. The trial court had to decide whether the board correctly interpreted the section [of the regulations] and applied it with reasonable discretion to the facts. ... In applying the law to the facts of a particular case, the board is endowed with . . . liberal discretion, and its action is subject to review . . . only to determine whether it was unreasonable, arbitrary or illegal.” (Internal quotation marks omitted.) Wood v. Zoning Board of Appeals, 258 Conn. 691, 697, 784 A.2d 354 (2001).

“A local board or commission is in the most advantageous position to interpret its own regulations and apply them to the situations before it. . . . Although the position of the municipal land use agency is entitled to some deference . . . the interpretation of provisions in the ordinance is nevertheless a question of law for the court. . . . The court is not bound by the legal interpretation of the ordinance by the [board].” (Citation omitted; internal quotation marks omitted.) Doyen v. Zoning Board of Appeals, 67 Conn. App. 597, 603, 789 A.2d 478, cert. denied, 260 Conn. 901, 793 A.2d 1088 (2002).

“The regulation is a local legislative enactment, and in its interpretation we seek to discern the intent of the legislative body as manifested in the words of the regulation. . . . Since zoning regulations are in derogation of common law property rights, however, the regulation cannot be construed beyond the fair import of its language to include or exclude by implication that which is not clearly within its express terms. . . . The words employed by the local legislative body are to be interpreted in accordance with their natural and usual meaning . . . .” (Citations omitted.) Spero v. Zoning Board of Appeals, 217 Conn. 435, 441, 586 A.2d 590 (1991). “[W]here more than one interpretation of language is permissible, restrictions upon the use of lands are not to be extended by implication . . . [and] doubtful language will be construed against rather than in favor of a [restriction] . . . .” (Internal quotation marks omitted.) Daughters of St. Paul, Inc. v. Zoning Board of Appeals, 17 Conn. App. 53, 66, 549 A.2d 1076 (1988), quoting Bassett v. Pepe, 94 Conn. 631, 637, 110 A. 56 (1920).

Black Point Beach Club Association zoning regulation § IV, part two, describes generally the types of structures allowed on residential lots and provides in relevant part that “[m]obile homes will not be permitted on any lot . . . .” “Mobile Home” is described in § 1, the definitional section of the regulations, as “[a] one-family dwelling of vehicular, portable design, built on a chassis and designed to be moved from one site to another and to be used without permanent foundation.” “Dwelling, One Family” is defined as “[a] detached building designed for or occupied by one (1) family.” “Building” is defined in relevant part as a “structure with walls and a roof securely affixed to the land.” “Motor homes” are not mentioned or defined in the regulations.

From a reading of the plain language of those provisions, it is unclear whether they are intended to apply to items such as the plaintiffs’ motor home. Particularly, although the motor home is unquestionably of “vehicular, portable design [and] built on a chassis,” it is not a “dwelling,” as that term explicitly is defined as a type of “building,” which in turn contemplates attachment to the land. Furthermore, it is unclear whether the description “to be used without permanen t foundation” (emphasis added) implies that a defining feature of a “mobile home” is a temporary foundation or, rather, no foundation at all. Last, the passive phrase, “to be moved,” arguably does not apply to an item that has its own power supply and thus moves of its own accord. Because the provision at issue is ambiguous, we must look elsewhere for interpretive guidance to determine the natural and usual meaning of the term “mobile home.”

Several of our sister courts have recognized a distinction between mobile homes and motor homes. In Snider v. Grodetz, 442 So. 2d 344, 346 (Fla. App. 1983), the District Court of Appeal of Florida held that a restrictive covenant disallowing “mobile homes” from a subdivision did not encompass a “motor home,” which was used as a recreational vehicle and not as a permanent dwelling. The court noted that although the two items shared common manufacturing roots, the motor home and house trailer industries had come to be “considered separate markets and the terminology relating to these separate industries has gradually become more distinct and precise.

“A mobile home is commonly defined as a factory built dwelling unit that is transported to a homesite where it is placed on concrete strips or foundations. A mobile home is not self-propelled and is designed for use as a permanent dwelling. By contrast a house trailer is considered a recreational vehicle and is designed for more temporary use and to be regularly pulled or towed by an automobile or other self-propelled vehicle. However, there are two main types of recreational vehicles, the ones that are towed, e.g., house trailers, soft top campers, and travel traders, and the ones that are self-propelled. The motor home falls into the latter category.” Id., 345.

The court further stated that by 1973, the different meanings of the terms “mobile home” and “motor home” were commonly known throughout the country, and that the distinction between the two was articulated both in a common dictionary and in Florida’s statutes. Id. Giving the term “mobile home” its “ordinary, obvious meaning as commonly understood”; id., 346; the court concluded that the covenant disallowing “mobile homes” was not intended to apply to “self-propelled recreational vehicles known generically as motor homes.” Id.

Other courts have reached similar conclusions in varying contexts. See, e.g., Sharpe v. Trail, 902 P.2d 304, 307 (Alaska 1995) (in context of eviction statute, “ ‘mobile home is a detached, single family dwelling unit designed for long term occupancy, which distinguishes it from the motor home or travel trailer’ ”); Peel v. Melani, 829 P.2d 277, 278 (Wyo. 1992) (in interpreting restrictive covenant, “motor home is not a ‘house trailer, mobile home or other structure . . . placed upon [a] lot’ ”); Dehnel v. Paradise R.V. Resort, 588 So. 2d 668, 669 (Fla. App. 1991) (for purposes of eviction, “recreational vehicle . . . not a mobile home”); Hidden Valley Civic Club v. Brown, 702 S.W.2d 665, 667-68 (Tex. App. 1985) (in context of deed restriction, recreational vehicle or camper not “mobile home”); Sylvan Glens Homeowners Assn. v. McFadden, 103 Mich. App. 118, 122, 302 N.W.2d 615 (in interpreting restrictive covenant, “trailer is not self-propelled but is designed to be drawn by another vehicle [while] motor home is a self-propelled independent vehicle”), appeal denied, 411 Mich. 1050 (1981); Phillips v. Schwartz, 607 S.W.2d 203, 207-208 (Mo. App. 1980) (restrictive covenant barring “trailer or movable house” applied to mobile homes but not camper trailers); Redding v. Slaughter, 208 Kan. 206, 208-209, 491 P.2d 897 (1971) (for licensing purposes, trailer coaches distinct from mobile homes); compare Oil v. Johnson, 262 Ind. 548, 552, 319 N.E.2d 622 (1974); Brownfield Subdivision, Inc. v. McKee, 19 Ill. App. 3d 374, 379, 311 N.E.2d 194 (1974), aff'd, 61 Ill. 2d 168, 334 N.E.2d 131 (1975); Bowman v. Holsopple, 155 Ind. App. 272, 275-76, 292 N.E.2d 274 (1973) (each concluding items in question were “mobile homes”).

The legislature also distinguishes between mobile homes and motor homes, as reflected in the General Statutes. “Motor home” is defined in title 14, which governs motor vehicles, as “a vehicular unit designed to provide living quarters and necessary amenities which are built into an integral part of, or permanently attached to, a truck or van chassis . . . .” General Statutes § 14-1 (45). “Mobile homes” are defined, in relevant part, in chapter 412, a comprehensive scheme of governance for mobile home parks, as “detached residential unit[s] . . . which are intrinsically mobile with or without a wheeled chassis . . . designed for long-term occupancy and to be placed on rigid supports at the site where it is to be occupied as a residence . . . .” General Statutes § 21-64 (1); see also General Statutes § 21-64a. Those definitions and classifications are consistent with the notion articulated in the case law that “motor homes” are primarily vehicles while “mobile homes” are primarily dwellings.

A review of general research resources reveals a similar distinction. Merriam-Webster’s Collegiate Dictionary (10th Ed. 1999) defines a “mobile home” as “a dwelling structure built on a steel chassis and fitted with wheels that is intended to be hauled to a usu. permanent site,” and “motor home” as “a large motor vehicle equipped as living quarters.” A legal encyclopedia provides that a “ ‘mobile home’ may be defined as a movable or portable dwelling built on a chassis, designed without a permanent foundation, suitable for connection to utilities, and intended for year-round living. A mobile home may be distinguished from a travel trailer in that the latter is a portable structure, built on a chassis and designed for use as a temporary dwelling for travel, recreational, and vacation uses. . . . The distinction between mobile homes and travel trailers is clear and is based upon the permanency of occupation of the former.” 53A Am. Jur. 2d, Mobile Homes and Trailer Parks § 1 (1996).

On the basis of the foregoing, we conclude that the natural and usual meaning of the term “mobile home,” as commonly understood, does not encompass “motor homes.” As such, the board abused its discretion when it interpreted the applicable regulatory language arbitrarily and unreasonably to conclude otherwise. “[C]riteria contained in a zoning commission’s regulations must be as reasonably precise as the subject matter requires and as reasonably adequate and sufficient to guide the commission and to enable those affected to know their rights and obligations.” Helbig v. Zoning Commission, 185 Conn. 294, 307-308, 440 A.2d 940 (1981). “[E]very owner of property located in a town which has adopted zoning is entitled to be able to ascertain, with reasonable certainty, what uses he may legally make of any portion of his property.” (Internal quotation marks omitted.) Id., 308.

In this case, the provision barring “mobile homes” was insufficient to apprise residents of their rights and obligations as to “motor homes.” If the association had intended through its regulations to disallow the storage on residential property of both motor homes and mobile homes, it easily could have said so. See Harlow v. Planning & Zoning Commission, 194 Conn. 187, 194, 479 A.2d 808 (1984).

The judgment is reversed and the case is remanded with direction to render judgment for the plaintiffs.

In this opinion the other judges concurred.

       The plaintiffs argue alternatively that the board’s interpretation of the regulation was a change from past practice that amounted to an amendment of the regulation such that their storage of their motor home on their property should be considered a preexisting nonconforming use. Because our resolution of their first claim is dispositive of the appeal, we need not address the plaintiffs’ secondary argument.

       General Statutes § 8-1 (a) provides in relevant pari; that “[a]ny municipality may, by vote of its legislative body, adopt the provisions of [chapter 124 of the General Statutes] and exercise through a zoning commission the powers granted [t]hereunder. . . .” General Statutes § 8-la provides that the term “municipalities” encompasses “districts” establishing zoning commissions under General Statutes § 7-326, and General Statutes § 7-324 provides that, as used in General Statutes §§ 7-324 to 7-329, the term “district” includes any “beach or improvement association.”

       21 Spec. Acts 537, No. 462 (1931), enabled the creation of the Black Point Beach Club Association.

       Section IV, part two, provides: “No tents or temporary buildings shall be erected or placed upon the property, provided that the placement of pup tents for casual or temporary use shall not be prohibited and the placement of party tents or canopies for social occasions shall not be prohibited, provided such placement shall not last longer than seven consecutive days and complies with all applicable requirements of the Department of Public Safety and the Building Code of the Town of East Lyme which require permits in some instances. No building or structure shall be erected on a lot prior to the erection of the dwelling. Mobile homes will not be permitted on any lot. One unoccupied trailer or boat may be stored on a lot, except that any such trailer or boat shall be located within the setback requirements on any side of the lot located on a street and any trailer shall also be located within all other required setback lines.”

       The lack of clarity in the regulatory definition of “mobile home” is further evidenced by the zoning official’s need to consult with the zoning commission regarding' its meaning, and the board’s subsequent submission of the question to the association’s counsel. We pause at this juncture to note that we are troubled by the board’s apparent belief, as reflected in the hearing transcript, that it was bound by the legal opinion it had solicited from its counsel. The board’s chairman stated at the hearing that the board’s interpretation of the definition of “mobile home” was “[n]ot a matter of our discretion. [Counsel] said in his legal opinion it was not permitted, so it was not a matter of discretion or anything like that and it wasn’t up to our discretion to decide.” In its letter addressing the question, counsel characterized its opinion as “advice” and in no way suggested that the board lacked discretion to decide otherwise. Although a zoning board of appeals may seek technical and professional assistance, including legal advice, it is the board’s duty to interpret the regulations, giving consideration to all of the evidence and arguments and exercising its discretion independently. General Statutes § 8-6; Spero v. Zoning Board of Appeals, supra, 217 Conn. 444.

       Like zoning regulations, restrictive covenants are in derogation of common-law property rights, and courts construing them will not extend them by implication. Pulver v. Mascolo, 155 Conn. 644, 649, 237 A.2d 97 (1967).

       General Statutes § 21-64a provides that within the statutes, the terms “mobile home” and “mobile manufactured home” are interchangeable. General Statutes § 21-64 (1) provides: “ ‘Mobile manufactured home’ means a detached residential unit having three-dimensional components which are intrinsically mobile with or without a wheeled chassis or a detached residential unit built on or after June 15,1976, in accordance with federal manufactured home construction and safety standards, and, in either case, containing sleeping accommodations, aflush toilet, tub orshowerbath, kitchen facilities and plumbing and electrical connections for attachment to outside systems, and designed for long-term occupancy and to be placed on rigid supports at the site where it is to be occupied as a residence, complete and ready for occupancy, except for minor and incidental unpacking and assembly operations and connection to utilities systems . . .

       As previously explained, travel trailers and motor homes both are subtypes of recreational vehicles. Snider v. Grodetz, supra, 442 So. 2d 345.

       Our conclusion that the drafters of the association regulations did not intend to disallow motor homes is further supported by their explicit sanctioning of “unoccupied trailers],” subject to setback requirements. See footnote 4. “Trailer” is defined in § 1 of the regulations as “[a] vehicular device designed to be pulled by a truck or automobile and typically used for hauling, camping and/or boating.” As the court explained in Snider v. Grodetz, supra, 442 So. 2d 345, trailers and motor homes are both recreational vehicles, distinguished only by the fact that the latter moves via its own power supply. It is not logical that the drafters would allow one type of recreational vehicle yet disallow another that is functionally identical, based on that minor distinction.


author: FOTI, J.

text:
    HUNTER’S AMBULANCE SERVICE, INC. v. THOMAS A. SHERNOW ET AL.
    (AC 20973)
    Foti, Flynn and Daly, Js.
    Argued February 15
    officially released May 28, 2002

      Kenneth W. Williams, for the appellant (plaintiff).

      Richard M. Dighello, Jr., with whom was Barbara A. Frederick, for the appellees (defendants).
   Opinion

FOTI, J.

In this civil action sounding in professional malpractice and breach of contract, the plaintiff, Hunter’s Ambulance Service, Inc., appeals from the judgment of the trial court rendered in favor of the defendants, Thomas A. Shemow and the accounting firm of Whitten, Horton and Gibney (Whitten). On appeal, the plaintiff claims that the court improperly (1) refused to strike the testimony of the defendants’ expert witness, (2) found material facts that were not supported by the evidence, (3) concluded that the plaintiff had not proved that it could recover against a third person for his alleged negligence and (4) concluded that the defendants had not breached contractual duties that they owed to the plaintiff. We affirm the judgment of the trial court.

The dispute between the parties arose out of accounting services rendered to the plaintiff by Shemow, a licensed certified public accountant, who, at all times relevant, was an employee working within the scope of his employment at Whitten. The plaintiff originally brought its action in three counts, alleging negligence, breach of contract and violations of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. The court granted the defendants’ motion to strike the CUTPA count and that decision is not a subject of this appeal.

The basis for the plaintiffs claim of professional malpractice originated in events that preceded the defendants’ involvement with the plaintiff. In 1988, officers of the plaintiff negotiated the purchase of Professional Ambulance Service of Middlesex, Inc. (Professional Ambulance), another corporation that provided ambulance services. Prior to May, 1991, Carlton Helming, a certified public accountant, provided professional accounting services and advice to the plaintiff. During his tenure, Helming was the plaintiffs principal accountant. As part of his services, Helming assisted in negotiating the purchase of Professional Ambulance and advised the plaintiff regarding the purchase and its tax consequences.

On December 9, 1988, the plaintiff entered into an agreement with Professional Ambulance to purchase all of its stock. The parties agreed to close the sale in January, 1989. On January 18, 1989, the plaintiff completed the purchase. Subsequently, Helming prepared corporate tax returns for the plaintiff. His actions in this regard underlie the plaintiffs action. The plaintiff alleged that Helming did not advise it to schedule the closing on the purchase so that it would have occurred during 1988. If Helming had done so, the plaintiff would properly have been able to avail itself of tax savings that would have been available to it under § 338 of the Internal Revenue Code. Also, the plaintiff alleged that Helming thereafter prepared the plaintiffs 1989 and 1990 federal tax returns as if the closing on the sale had occurred in 1988, thereby assuming for the plaintiff significant tax benefits to which it was not entitled.

The professional relationship between the plaintiff and Helming began to deteriorate by the end of 1990. In the spring of 1991, the plaintiff terminated Helming’s employment and hired the defendants to serve as the plaintiffs accountant. In the early part of 1992, the Internal Revenue Service (IRS) commenced an audit of the plaintiff that focused on the plaintiffs purchase of Professional Ambulance.

In December, 1991, Helming commenced a civil action against the plaintiff to recover unpaid fees for his services. The plaintiff thereafter pleaded, as a counterclaim in that action, that Helming negligently had prepared the plaintiffs corporate tax returns. The plaintiff claimed, however, that at that time it was unaware of Helming’s negligent tax treatment of its purchase of Professional Ambulance. In the present action, the plaintiff alleged that the defendants negligently failed to advise it as to the extent of Helming’s errors. Specifically, the plaintiff alleged that “[a]t no time did . . . Shernow ever advise the Plaintiff and/or its agents that Helming had committed professional malpractice with respect to the Plaintiffs purchase of [Professional Ambulance] by failing to make the proper election [under § 338] and/or by failing to require that said closing be consummated prior to January 1, 1989, or, that Helming may have knowingly, but at least negligently, taken deductions on behalf of the Plaintiff to which it was not legally entitled.”

The plaintiff further alleged that, on May 11, 1994, it relied on Shemow’s advice and accepted $35,000 from Helming in return for a full and final release of any and all claims that it had, or may have had, against him. Shortly thereafter, on May 29, 1994, the IRS issued a notice of deficiency against the plaintiff for $203,000, along with applicable penalties and interest. This action relates directly to Helming’s tax treatment of the plaintiffs acquisition of Professional Ambulance. The plaintiff also alleged that the department of revenue services for the state of Connecticut had assessed, or would assess, additional corporate taxes, along with interest and penalties, against the plaintiff for $105,000.

The plaintiff alleged that the defendants had committed professional malpractice in that they (1) failed to recognize that Helming had committed professional malpractice in his treatment of the plaintiffs acquisition of Professional Ambulance and to advise them of the same, (2) continued to treat Professional Ambulance’s acquisition in the same manner as Helming had treated it for tax purposes, (3) failed to advise the plaintiff as to the extent of Helming’s negligence and the plaintiffs consequent tax exposure and (4) failed to advise the plaintiff that Helming may have knowingly and improperly claimed tax deductions on its behalf that would subject the plaintiff to back taxes, penalties and interest.

The plaintiff alleged that the defendants’ actions also constituted a breach of the contract for professional services that existed between the parties. In this regard, the plaintiff alleged that the defendants (1) failed to obtain all the necessary information to perform its services for the plaintiff properly, (2) failed to research or become knowledgeable of the laws and regulations applicable to the plaintiffs business and its acquisition of Professional Ambulance, (3) failed to advise the plaintiff properly, (4) failed to use the care and skill used by other certified public accountants in rendering services to the plaintiff, (5) improperly undertook to do work and to prepare and cause to be filed tax documents on the plaintiffs behalf, (6) failed to advise the plaintiff properly as to its tax liabilities, (7) advised the pla.iut.iff as to settling its claim against Helming on the basis of an unskillful and negligent review of documents and (8) continued to amortize or depreciate assets under the same tax methods as Helming had used, with full knowledge that such tax treatment was improper.

After conducting a hearing, the court rendered judgment in the defendants’ favor on June 13, 2000. This appeal followed. Additional facts will be set forth in the context of the plaintiffs claims.

I

The plaintiff first claims that the court improperly refused to strike the testimony of the defendants’ expert witness, Stanley Roy. We need not reach the merits of this claim.

The defendants elicited testimony from Roy, a licensed certified public accountant with more than twenty-five years of experience in the accounting profession. Roy testified as to the standard of care applicable to Shernow and rendered his expert opinion that Shernow had not breached that standard of care.

The plaintiff thereafter filed a motion to strike Roy’s testimony on the ground that his expert opinion was invalid because he had applied “a standard of care to the defendants based solely on his personal opinion and without regard to the standards of ordinary practice in the accounting industry.” The court denied the plaintiffs motion, and the plaintiff now argues that the court improperly relied on Roy’s testimony in reaching its decision.

We dispose of the plaintiffs claim without reaching its merits. “[Bjefore a party is entitled to a new trial because of an erroneous evidentiary ruling, he or she has the burden of demonstrating that the error was harmful. . . . The harmless error standard in a civil case is whether the improper ruling would likely affect the result.” (Citation omitted; internal quotation marks omitted.) George v. Ericson, 250 Conn. 312, 327, 736 A.2d 889 (1999); see also 1B. Holden & J. Daly, Connecticut Evidence (2d Ed. 1988) § 60i, p. 385. The plaintiff is not entitled to a new trial because the court did not necessarily rely on any challenged aspects of Roy’s testimony or expert opinion when reaching its decision; the court found for the defendants on the basis of several separate findings and conclusions.

The plaintiffs allegations of negligence against Shernow fit into three broad categories: (1) that Shemow, having failed to discover Helming’s failure to make a § 338 election, negligently advised the plaintiff to settle the Helming litigation in accordance with the terms that it did, (2) that Shemow continued to follow Helming’s improper practices and, in essence, relied on Helming’s work and (3) that Shemow failed to keep the plaintiff apprised of the issues involved in the IRS audit. It is clear from a review of the court’s memorandum of decision that, apart from its conclusion that Shemow had not breached the standard of care, it found that the plaintiff had failed to prove its claims against Shernow on several grounds.

In regard to the claim that Shemow improperly relied on Helming’s work, the plaintiff cannot claim that any improper testimony from Roy affected the court’s decision. Roy testified that Shemow did not breach the standard of care by relying on Helming’s work under the circumstances of this case. Roy specifically indicated that his expert opinion in this regard was not based on the distinction that he drew between general practitioner accountants and those that he believed held the skills and training of tax: specialists. This distinction is the basis for the plaintiffs claim on appeal.

Further, Kenneth Pia, a certified public accountant specializing in merger and acquisition tax planning, who had been retained by the plaintiff at the time of the Helming litigation to, among other things, review Helming’s work, testified that Shernow had not breached the standard of care by failing to realize that Helming had failed to make the § 388 election. The court could have found that this opinion, apart from Roy’s, constituted credible evidence when it concluded that Shernow had not acted negligently.

In regard to the plaintiffs claim that Shernow negligently advised it to settle the Helming litigation on the terms that it did, the court based its conclusion on several findings apart from the issue of the breach of the standard of care. Most significantly, the court implicitly found that the plaintiff had failed to prove the merit of its case against Helming. The court noted that the plaintiff had failed even to introduce into evidence its counterclaim against Helming. The court commented that Helming did not testify at trial and the court heard no explanation for why he acted as he did. The court concluded that the plaintiff left it “to ponder the value of the claim” against Helming.

The court also rejected the plaintiffs claim that it relied on Shemow’s advice to any extent in reaching its settlement with Helming. The court found that attorneys acting on the plaintiffs behalf in this matter spoke to Shernow the day after they had decided to settle the Helming claim. The court concluded that the plaintiff had failed to prove both its claim that Shernow was responsible for the settlement and the value or collectibility of any judgment it might have recovered in the Helming litigation, absent the settlement. The plaintiff has not challenged the court’s findings in these regards on appeal.

To the extent that the plaintiff alleged that Shernow negligently failed to keep it apprised of the issues raised in the IRS audit, Pia corroborated Shemow’s testimony that he had informed Pia of the issues that remained unresolved in the audit. Further, the court concluded that both Pia, retained by the plaintiff as an expert witness in the Helming litigation, and Alan Solomon, an attorney retained by the plaintiff in the Helming litigation, “had as much knowledge of Helming’s malpractice as did Mr. Shernow.” The court also found that the plaintiff had not taken adequate steps to provide Shernow with Helming’s work papers and that the information contained therein would likely have helped to clarify the issues pending before the IRS. For all of these reasons, we see no reason to reverse the judgment on this ground.

II

The plaintiff next claims that we should reverse the judgment because six of the court’s factual findings were clearly erroneous. We disagree.

“We review challenges to a trial court’s factual determinations under the clearly erroneous standard of review. A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence in the record to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Primary Construction Services, LLC v. North American Specialty Ins. Co., 66 Conn. App. 828, 829-30, 785 A.2d 1218 (2001). While conducting our review, we properly afford the court’s findings a great deal of deference because “it is in the unique [position] to view the evidence presented in a totality of circumstances, i.e., including its observations of the demeanor and conduct of the witnesses and parties, which is not fully reflected in the cold, printed record which is available to us.” (Internal quotation marks omitted.) State v. Lipscomb, 258 Conn. 68, 74, 779 A.2d 88 (2001). Having set forth our standard of review, we now address each of the plaintiff’s claims in turn.

A

The court noted that Solomon had been “second only to [the plaintiffs founder] in the administrative chain of command.” The plaintiff argues that Solomon was not a part of the plaintiffs administrative or executive staff but was, instead, outside legal counsel to the plaintiff.

Testifying as to Solomon’s role with the plaintiff, Shernow stated, “Solomon served as more than just your traditional outside legal firm. . . . There was a real internal structure, chain of command .... I would see Mr. Vem Hunter at the very top of the list. I would see Alan Solomon on the second line of it, and I would see the three Hunter vice presidents underneath him. Mr. Solomon was consulted on and seemed to advise on a wide range of different operating issues and matters that came up with the Hunters.” The court also heard testimony from Solomon as to his professional relationship with the plaintiff since its founding in 1963 and his role in the events underlying this appeal. Given Shemow’s characterization and familiarity with the plaintiffs day-to-day operations, we cannot conclude that the court’s description of Solomon’s practical, even if not official, role, based on such testimony, was clearly erroneous.

B

The court noted that although “the plaintiff originally planned to have Shernow act as its expert in the Helming case, Mr. Pia assumed that role in his stead in March of 1994.” The plaintiff claims that the record does not support this characterization of Shemow’s role.

We look first to Shemow’s assessment of his role in the Helming litigation as of the time that the plaintiff retained Pia. Shernow noted that he had talked to Solomon, who had been handling the litigation, and informed Mm that he would not be “comfortable” with being deposed. Shemow further testified that Solomon retained Pia because he had a good reputation for providing testimony. Pia testified that Solomon contacted him in March, 1994, and asked him to review Helming’s work. He believed that the plaintiff had hired him for a “very specific purpose and that was as an expert witness to testify to matters pertaining to Carlton Helming’s malpractice.”

Solomon testified that he approached Pia because he believed that Shemow’s opimon in the Helming litigation could have been criticized because Shemow was “criticizing Mr. Helming and . . . was getting paid by Mr. Hunter.” Solomon also noted that he believed, at that time, that he needed to bring in an outsider to evaluate Helming’s work. Additionally, the court heard ample testimony from both Shemow and Pia as to their roles in the Helming matter. Given the evidence in the record, we are not left with the firm conviction that the court’s evaluation of Pia’s role was clearly erroneous.

C

After discussing Shemow’s reliance on Helming’s work, the court noted that “[a]s late as April of 1994, Helming had not produced the material Shemow wanted . . . .” The plaintiff claims that the court’s finding in tMs regard is clearly erroneous because the evidence demonstrated that, on three separate occasions, Helming had provided documents to Shemow.

Shemow testified that, in April, 1994, he had sought documentation from Helming in support of Ms tax filings for the plaintiff. Shemow noted, “I was still waiting for further work papers. The work papers I had from Helming were inconclusive .... Attorney Solomon came out and asked me what other work papers do you need, and I told Mm that we still needed something that was more conclusive on the client list . . . .” Shernow later testified that, by the time he met with IRS officials in February, 1995, he believed that he had enough documentation for the audit to be resolved in the plaintiffs favor. At no time did Shernow state that, despite having received documentation from Helming, he believed that he possessed all of the documentation related to his work or all of the documentation that he desired. Accordingly, we are not persuaded that the court’s finding was clearly erroneous.

D

The court noted that “[w]hile the parties disagree as to Shemow’s role in the decision to settle the Helming case, the court notes that even if the plaintiffs version of events is accepted, the person who was to act as the expert at trial, Mr. Pia, and the attorney handling the case, attorney Solomon, proceeded to settle.” The plaintiff argues that this statement, insofar as it implied that Pia and Solomon made the decision to settle the case, ignores the uncontroverted testimony of both Pia and Solomon that their recommendation to settle remained contingent on Shemow’s assessment of the plaintiffs exposure in the audit.

The court’s statement itself reflects the fact that the parties disagreed over Shernow’s role in settling the Helming litigation. Solomon and Pia testified that Shernow’s opinion was a major factor in the decision to settle the litigation. Solomon stated that the settlement was contingent on Shernow’s assessment of Hunter’s exposure in the audit. Shernow testified, however, that he was not involved in the decision to settle the litigation. Specifically, Shemow stated, “I was surprised that the case had settled before I knew about it, with the IRS audit still ongoing. And the next time I was in the office of [the plaintiff] I asked for some more details about what the numbers were and I was provided with the settlement amount.”

Despite the testimony of Pia and Solomon that they relied on Shemow’s opinion prior to settling the litigation, the court was free to accept Shemow’s testimony that the plaintiff did not ask him to approve any proposed settlement and that he did not learn of the settlement until after it had occurred. Accordingly, we conclude that the court’s finding was supported by the evidence adduced at trial.

E

The court noted that “[t]he plaintiff’s argument [that] it could have recovered on any judgment [against Helming] does not take into account the lack of evidence as to malpractice coverage and the amount of coverage, whether the carrier had asserted a reservation of rights and what period of time this carrier was covering. In fact, the payment from Helming to Hunter of $35,000 as part of the settlement was paid in part by Helming. . . . Nor do we know if Helming had assets which could be reached, absent insurance coverage.” The plaintiff argues that the evidence does not support the court’s findings because (1) the court had before it two settlement checks from Helming, proving that Helming had personal resources and malpractice insurance coverage, and (2) the plaintiff “supplied” the court with the declaration page from Helming’s malpractice insurance policy, which indicated that he carried $500,000 in coverage.

The plaintiff essentially argues that it submitted evidence sufficient to demonstrate that it could have recovered a judgment against Helming and that the court improperly ignored its evidence in this regard. On the basis of our review of the record, we note first that the plaintiff did submit two checks made payable to it as settlement in the Helming litigation. American Home Insurance Company issued one check for $25,000, and Helming’s accounting firm issued a second check for $10,000. The existence of these two checks does not demonstrate that the plaintiff could have collected a judgment against Helming. Standing alone, these checks did not necessarily prove that Helming had malpractice insurance sufficient to cover any judgment adverse to him and certainly left unanswered questions as to the amount of coverage, whether the carrier had asserted a reservation of rights or any of the terms of the policy. Likewise, these checks did not necessarily prove that Helming possessed personal assets sufficient to satisfy a judgment against him.

The plaintiff did not offer the declaration page of Helming’s malpractice insurance policy into evidence during the evidentiary phase of the trial. Instead, it attached a copy of what purported to be such a declaration page to its posttrial brief to the court. The plaintiff apparently took this action when the court suggested, after the parties had rested, that the plaintiff had failed to prove not only what its claim against Helming was worth in the first instance, but also whether the plaintiff would have been able to collect a judgment against him. The court’s finding reflected the absence of proof as to whether the plaintiff would have been able to collect a judgment against Helming.

F

The plaintiff next argues that “[t]he court found that the plaintiff offered no written evidence regarding whether it informed . . . Shemow that the Helming litigation was nearing settlement.” The plaintiff argues that this finding was clearly erroneous because it submitted as evidence the time records of David Wyskiel, an attorney who, along with Solomon, represented the plaintiff in the Helming litigation. The plaintiff contends that these records are clear proof that Wyskiel telephoned Shemow on the day of the proposed settlement to advise him, among other things, of the settlement terms and to seek his advice. The plaintiff argues that this proof was uncontested at trial.

The court noted that “ [t]he plaintiff offered no written evidence as to what was presented to Shemow, nor was any memorandum or writing from Shemow endorsing the settlement produced. The plaintiff relies on the testimony of attorneys Solomon and Wyskiel to the effect that they each spoke on the telephone to Shemow and obtained his opinion favoring the settlement.” The court’s statement fairly reflects the evidence adduced at trial.

The court noted that Wyskiel testified that he spoke with Shemow on April 27,1994. Wyskiel’s time records include a notation that he spoke with Shemow on this date. The notation does not specifically indicate what Wyskiel conveyed to Shemow, nor what, if anything, Shemow conveyed to him. Shemow testified only that he did not recall having a conversation with Wyskiel about settling the case.

The court obviously chose to discredit Wyskiel’s testimony and interpreted his time record contrary to the plaintiffs interpretation of that document. The court also stated that it viewed “with skepticism” the claim that Solomon and Wyskiel spoke with Shemow on the telephone to obtain his approval of the settlement. It found that the plaintiff had settled the Helming litigation on April 26,1994, one day before Wyskiel’s time records reflect the call to Shemow. The plaintiffs claim, once again, is merely another invitation for this court to reevaluate the evidence presented at trial harmoniously with its version of the events at issue in this action. We will not do so. The trial court is not bound to accept as true the testimony, even the uncontradicted testimony, of any witness. “[T]he trial court is free to accept or reject, in whole or in part, the evidence presented by any witness, having the opportunity to observe the witnesses and gauge their credibility.” (Internal quotation marks omitted.) Giulietti v. Giulietti, 65 Conn. App. 813, 878, 784 A.2d 905, cert denied, 258 Conn. 946, 947, 788 A.2d 95, 96, 97 (2001); 2 B. Holden & J. Daly, Connecticut Evidence (2d Ed. 1988) § 125a, p. 1228. The court’s evaluation of the evidence reflects a proper exercise of its fact-finding function, and we conclude that its findings were not clearly erroneous.

Ill

The plaintiff next claims that the court improperly found that it failed to demonstrate that it would have been able to collect a judgment against Helming had it obtained a judgment against him. We disagree.

The record reflects that, after the parties had concluded the evidentiary phase of the trial, the court addressed the parties with respect to the filing of post-trial briefs. The court informed the attorneys that it would review the briefs prior to hearing posttrial arguments and that it had not yet resolved the claims before it. The court then informed the attorneys that it wanted them to address, in their briefs, the issue of what any claim against Helming would have been worth and the issue of whether the plaintiff would have been able to collect a judgment against Helming. The plaintiff argues that the defendants had the burden of pleading such issues as special defenses at trial and to present evidence relevant thereto. The plaintiff also argues that the defendants had the burden to “refute [the] plaintiffs documentary evidence indicating [that] Mr. Helming had substantial malpractice insurance coverage.” Essentially, the plaintiff claims that the court improperly required the plaintiff to carry the burden of proof with respect to this issue and, in the alternative, that it did so.

We need not reach the merits of this claim because, given our resolution of other issues in this appeal, any error in this regard was harmless. The court’s consideration of this issue regarding the collectibility of any judgment against Helming certainly was of no consequence to its judgment because the court found “that the plaintiff [had] failed to substantiate its claim that Shemow was responsible for an allegedly unfavorable settlement.” Additionally, we are mindful that the court did not find merit in the plaintiffs claim against Helming in the first instance. The court commented on the weakness in the plaintiffs claim against Helming, concluding that it was left to “ponder the value of the claim, particularly in light of the settlement that was reached.” For these reasons, we need not reach the claim.

IV

Finally, the plaintiff claims that the court improperly declined to find that the defendants breached any contractual obligation owed to it. The plaintiff argues that, apart from the court’s resolution of its allegations of professional malpractice, the evidence demonstrated that Shernow made assurances to the plaintiff or warranted a specific result. The plaintiff argues that the evidence likewise established that the defendants failed to satisfy their duty in a number of ways, “[c]hief among them . . . [was] defendant’s improper advice based on their failure to recognize Ilelming’s malpractice.” We conclude that the record is not adequate to review this claim.

Despite its claim on appeal, the plaintiff, in its brief, recognizes that “[t]he court below failed to address in its findings whether defendant Shernow made assurances or warranted specific results to the plaintiff.” Having reviewed the court’s memorandum of decision, we agree that it did not make findings in this regard. The plaintiff improperly attempts in its brief to persuade us that the evidence demonstrated that Shernow breached a contractual duty that arose as a result of his assurances or representations that he would achieve a specific result for it.

Appellants bear the burden of furnishing this court with an adequate record to review their claims. Practice Book § 61-10; 1 B. Holden & J. Daly, supra, § 60i, p. 385. Absent a clear record of the factual and legal basis underlying the trial court’s resolution of an issue, we are unable to review it. Accordingly, where the trial court’s decision is ambiguous, unclear or incomplete, an appellant must seek an articulation or rectification; Practice Book § 66-5; or this court will not review the claim. See CB Commercial/Hampshire, LLC v. Security Mutual Life Ins. Co., 61 Conn. App. 144, 149-50, 763 A.2d 32 (2000), cert. denied, 255 Conn. 940, 767 A.2d 1211 (2001). That is the case with regard to this claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff represents in its brief that, after exhausting its administrative and legal remedies related to the additional taxes levied on it, it paid in excess of $449,000 in overdue federal and state taxes.

       We observe that posttrial briefs afford counsel an opportunity to comment on the evidence adduced during trial. They do not afford counsel an opportunity to introduce new evidence.

       See footnote 4.

       The court stated: “[TJhere is one issue that is . . . troubling me and that I think both parties should address. And I say this to be fair to both parties .... This has to do with the claim that’s included in the plaintiffs case to the effect that the advice of Mr. Shemow with respect to settling the Helming case renders him liable because of the consequences in that they had — if they had known what they were up against, they would not have settled. Now, what I ask you to consider there is whether the measure of damages there should not be considered — well, the focus on the measure of damages in that situation, I think you have to evaluate what the claim against Helming was worth. We haven’t heard from Helming, and all I have about the lawsuit is what I’ve heard, sort of, indirectly. But, it would seem to me that in order to get damages for that claim, we have to know what— what the claim was worth. And the corollary to that, assuming you’re going to get a judgment against Helming, could you collect it? I don’t — the second part, I’m not sure whether that’s a fact.” The court stated: “I’ll leave it up to you guys to address that, and I tell you now so that no matter how this thing falls and what. . . findings I wind up with, or what legal conclusions are involved, I think this is one [issue] that has to be addressed by both [parties]. I’ll give you ample opportunity to address it, cause it’s . . . troubled me from the . . . very beginning.”


text:
    STATE OF CONNECTICUT v. ROBERT COOK
    (AC 20561)
    Lavery, C. J., and Foti and Schaller, Js.
    Argued January 15
    officially released May 28, 2002

      Donald D. Dakers, special public defender, for the appellant (defendant).

      RogerS. Dobris, senior assistant state’s attorney, with whom, on the brief, was Michael Dearington, state’s attorney, for the appellee (state).
   Opinion

LAVERY, C. J.

The defendant, Robert Cook, appeals from the judgments of conviction, rendered after a jury trial, of robbery in the first degree in violation of General Statutes § 53a-134 (a) (2) and attempt to commit robbeiy in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-134 (a) (2). The defendant claims that the trial court improperly (1) admitted evidence of uncharged conduct by the defendant and (2) consolidated for trial the count of attempt to commit robbeiy in the first degree with two counts of robbery in the first degree. We affirm the judgments of the trial court.

The jury reasonably could have found the following facts. On September 22, 1998, the Dairy Mart convenience store located at 224 Quinnipiac Avenue in North Haven was robbed. At approximately 9 p.m., a man entered the store and pointed a shotgun at the two employees who were behind the counter. The man ordered the employees to place the money from the register into a bag. The man took the bag containing approximately $500 and exited the store. Both of the clerks described the man as a black male wearing a multicolored scarf tied across his face as a mask from above his nose to below his chin.

On November 21,1998, Krauszer’s food store located at 59 Middletown Avenue in North Haven was robbed. A black male entered the store, pointed a shotgun at the clerk and demanded money. The clerk handed the man a bag containing approximately $541, and he left the store. The clerk described the man as wearing a “hankie” over his face and a sports cap on his head.

On December 11,1998, the Tolland Xtra Mart located on the Hartford Turnpike in Tolland was robbed. At approximately 8:45 p.m., a black male entered the store, pointed a shotgun at the clerk and demanded money. The clerk gave the man a bag containing approximately $300, and he exited the store. The clerk described the man as wearing a purple bandana over his face.

On that same day, at approximately 9:45 p.m., Sergeant William Bimey of the Wallingford police department observed a car parked suspiciously in a vacant lot next to a Texaco Mini-Mart located in Wallingford. Earlier that day, Bimey had received information concerning robberies of convenience stores that described the perpetrator as a black male wearing a multicolored bandana and armed with a shotgun. He observed a man, Harry Rivers, leaning against the operator’s door of the vehicle, looking toward the Texaco station. Bimey called in the license plate registration number of the vehicle and was informed that the plate had been reported stolen. As Birney approached the vehicle, Rivers was in the driver’s seat and he observed another man, the defendant, walk out from behind the Texaco station. When he arrived at the vehicle, the defendant was standing in front of it. After backup arrived, Bimey opened the glove compartment of the vehicle to obtain the registration documents. Bimey found a shower cap containing $407 in the glove compartment and two large bags containing $144 in a rear child seat. Bimey then observed a multicolored bandana protruding from the defendant’s pocket, and, as the officer reached for it, the defendant attempted to flee but was quickly apprehended. A shotgun was found leaning against an air conditioning unit of the Texaco station approximately thirty feet from the stolen vehicle. The shotgun was later identified by the convenience store clerks as the weapon used in the robberies. The defendant was placed under arrest for attempt to commit robbery of the Texaco Mini-Mart.

The defendant was charged in three separate informations with robbery in the first degree for the robbery of the Dairy Mart in North Haven, robbery in the first degree for the robbery of Krauszer’s convenience store in North Haven and attempt to commit robbery in the first degree based on his arrest at the Texaco Mini-Mart in Wallingford. Prior to the commencement of jury selection, upon motion of the state, the trial court consolidated the three informations for trial. Following a jury trial, the defendant was found guilty of attempt to commit robbery in the first degree and of one count of robbeiy in the first degree. The defendant was sentenced to a total effective term of fifteen years in the custody of the commissioner of correction. This appeal followed.

I

The defendant first claims that the court improperly allowed the jury to consider evidence of the Tolland robbery for which he had not been charged as it pertained to the defendant’s intent to rob the Texaco Mini-Mart in Wallingford. We do not agree.

“Although evidence of other crimes or uncharged conduct is not admissible to show bad character or a disposition to commit a crime, such evidence is admissible to show such Issues as common scheme, intent, malice, identity, motive or opportunity.” State v. Greene, 209 Conn. 458, 464-65, 551 A.2d 1231 (1988). “The rationale of this rule is to guard against its use merely to show an evil disposition of an accused, and especially the predisposition to commit the crime with which he is now charged. . . To be admitted under one of these exceptions, the evidence must satisfy a two-pronged test: First, the evidence must be relevant and material to at least one of the circumstances encompassed by the exceptions. . . . Second, the probative value of the evidence must outweigh its prejudicial effect.” (Citations omitted; internal quotation marks omitted.) State v. Sierra, 213 Conn. 422, 428, 568 A.2d 448 (1990). “It is [b]ecause of the difficulties inherent in this balancing process that the trial court will be reversed only when there is a manifest abuse of discretion.” (Internal quotation marks omitted.) State v. Greene, supra, 465.

During trial, the state sought to introduce evidence of the uncharged Tolland robbery through the testimony of Nina Miller, the clerk working at the convenience store on the night of the robbery. The state claimed that the evidence was relevant to the issues of the identification of the perpetrator in the two North Haven robberies and the defendant’s intent to commit a robbery of the Texaco Mini-Mart in Wallingford. The court held a hearing on the state’s offer of proof outside of the presence of the jury and ruled that the testimony was admissible. The court stated: “[W]ith respect to the Wallingford robbery, it was on the same day as the Tolland robbery. As I recall the evidence from Sergeant Bimey, there was a bandana in [the defendant’s] jacket. There was a shotgun found leaning against the building behind the Texaco Mini-Mart. I think the fact — -if a jury should conclude that a convenience store robbery took place, as described in the evidence I heard this morning, that that is — that is extremely relevant to the issue of whether or not Mr. Rivers and [the defendant] had the intent to commit a robbery of that Texaco Mini-Mart.

“That being the case, I believe this evidence on the first prong of the test is relevant to the issue of identity. The second is a balancing test concerning probative value versus prejudice. ... I wanted to wait until I heai’d all the evidence in this case along with the offer of proof so that I could make that balancing test not in a vacuum, but in the context of all that’s been presented. I believe that I’m going to resolve that, as I have indicated, in favor of allowing this evidence to come in.” The trial court gave a limiting instruction to the jury following Miller’s testimony and also in its final charge. The court instructed the jurors that they could consider the evidence of the Tolland robbery for the limited puiposes of identification in the two North Haven robberies and the defendant’s intent to commit a robbery of the Wallingford Texaco Mini-Mart.

The court properly determined that the evidence of the uncharged conduct was relevant to the issue of the defendant’s intent to commit a robbery in the attempted robbery and that the probative value of the evidence outweighed any prejudicial effect. Furthermore, the court was aware of the potentially prejudicial effect of the evidence and instructed the jury twice that the evidence could be considered only for a limited purpose. See State v. Figueroa, 235 Conn. 145, 166-68, 665 A.2d 63 (1995). We conclude, therefore, that the court’s decision to admit the evidence of the uncharged conduct was not an abuse of discretion.

II

The defendant next claims that the court improperly joined for trial the attempted robbery in Wallingford with the two North Haven robberies. We disagree.

Prior to trial, the state moved to consolidate the three informations into a single trial. Following a hearing, the court granted the state’s motion. The defendant took no exception to the consolidation of the two informations charging him with the North Haven robberies, but he claimed that it was improper to consolidate those informations with the information charging him with attempt to commit robbery.

“We recognize that an improper joinder may expose a defendant to potential prejudice for three reasons. First, when several charges have been made against the defendant, the jury may consider that a person charged with doing so many things is a bad [person] who must have done something, and may cumulate evidence against him .... Second, the jury may have used the evidence of one case to convict the defendant in another case even though that evidence would have been inadmissible at a separate trial. . . . [Third] joinder of cases that are factually similar but legally unconnected . . . presents] the . . . danger that a defendant will be subjected to the omnipresent risk . . . that although so much [of the evidence] as would be admissible upon any one of the charges might not [persuade the jury] of the accused’s guilt, the sum of it will convince them as to all. . . . Nevertheless, because joinder foster[s] economy and expedition of judicial administration . . . we consistently have recognized a clear presumption in favor of joinder and against severance . . . and, therefore, absent an abuse of discretion, we will not second guess the considered judgment of the trial court as to joinder or severance of two or more charges.

“The court’s discretion regarding joinder, however, is not unlimited; rather, that discretion must be exercised in a manner consistent with the defendant’s right to a fair trial. Consequently, we have identified several factors that a trial court should consider in deciding whether a severance may be necessary to avoid undue prejudice resulting from consolidation of multiple charges for trial. These factors include: (1) whether the charges involve discrete, easily distinguishable factual scenarios; (2) whether the crimes were of a violent nature or concerned brutal or shocking conduct on the defendant’s part; and (3) the duration and complexity of the trial. ... If any or all of these factors are present, a reviewing court must decide whether the trial court’s jury instructions cured any prejudice that might have occurred.” (Internal quotation marks omitted.) State v. Lewis, 60 Conn. App. 219, 226-27, 759 A.2d 518, cert. denied, 255 Conn. 906, 762 A.2d 911 (2000).

Even though the charges against the defendant involve similar factual scenarios, the court’s instruction to the jury was sufficient to cure any prejudice that might have occurred. The court thoroughly instructed the jury twice that the evidence of the uncharged conduct should not be used to infer guilt but only for the limited purpose of the issue of identification. Although the crimes involved an element of potential violence, they were not brutal or shocking in nature and the trial was neither long nor complex. In addition, the jury acquitted the defendant of one count of robbery in the first degree, which demonstrated that it was able to analyze each count separately. State v. Whittingham, 18 Conn. App. 406, 413, 558 A.2d 1009 (1989). We conclude, therefore, that the joinder of the three charges did not prejudice the defendant and, accordingly, the court did not abuse its discretion.

The judgments are affirmed.

In this opinion the other judges concurred.

       General Statutes § 53aT34 (a) provides in relevant part: “A person is guilty of robbeiy in the first degree when, in the course of the commission of the crime of robbeiy as defined in section 53a-133 or of immediate flight therefrom, he or another participant in the crime ... (2) is armed with a deadly weapon . . . .”

       The defendant was acquitted of one count of robbery in the first degree.

       The defendant does not challenge the jury’s use of the uncharged Tolland robbery on the issue of identification in the two North Haven robberies.


author: PER CURIAM.

text:
    THOMAS TOMASZEK v. GIRARD MOTORS, INC., ET AL.
    (AC 21713)
    Dranginis, Flynn and Bishop, Js.
    Argued February 28
    officially released May 28, 2002

      Linda V. Tomaszek, conservatrix of the plaintiffs person and estate, for the appellant (plaintiffs conservator).

      Jason M. Dodge, for the appellees (defendants).
   Opinion

PER CURIAM.

The plaintiff, Thomas Tomaszek, appeals from the decision of the workers’ compensation review board (board) affirming the workers’ compensation commissioner’s (commissioner) denial of his motion to open the full and final settlement of his workers’ compensation claim against the defendants Girard Motors, Inc., and its workers’ compensation carrier, Hartford Insurance Group. On appeal, the plaintiff claims that the board improperly affirmed the commissioner’s denial of his motion to open the settlement when (1) the commissioner’s decision deprived him of his rights under the Americans with Disabilities Act, (2) the plaintiffs rights as set forth in 42 C.F.R. § 21 were violated and (3) insufficient evidence existed to support the commissioner’s finding that the plaintiff was competent at the time of entering into the settlement agreement. We affirm the decision of the board.

The commissioner found the following facts. While employed by the named defendant in 1992, the plaintiff filed a workers’ compensation claim for injuries to his lungs and neurological system. He claimed that he became disabled as a result of occupational disease and repetitive trauma incurred during the course of his employment. On June 18,1997, the plaintiff entered into a full and final settlement of his workers’ compensation claim with the defendant, which was approved by the commissioner. In the settlement agreement, the plaintiff agreed to receive a lump sum payment of $35,000 in exchange for a full, final and complete settlement of all past, present and future medical claims that he might otheiwise have against the defendants.

The plaintiffs conservatrix moved to open the settlement agreement, pursuant to General Statutes § 31-315, on the ground that when the plaintiff entered into the settlement agreement he failed to comprehend the terms of the stipulation. After holding formal hearings, the commissioner concluded that the plaintiff was competent at the time he entered into the settlement agreement and that no substantial change of circumstances, mutual mistake of fact or fraud had occurred. Accordingly, the commissioner denied the motion to open the full and final agreement. The conservatrix subsequently appealed to the board, which affirmed the commissioner’s decision. This appeal followed.

We decline to review the plaintiff’s claims on appeal. “[F]or this court judiciously and efficiently to consider claims of error raised on appeal . . . the parties must clearly and fully set forth their arguments in their briefs. We do not reverse the [decision] of [the board] on the basis of challenges . . . that have not been adequately briefed. . . . The parties may not merely cite a legal principle without analyzing the relationship between the facts of the case and the law cited. . . . [Assignments of error which are merely mentioned but not briefed beyond a statement of the claim will be deemed abandoned and wdll not be reviewed by this court. . . . Where the parties cite no law and provide no analysis of their claims, we do not review such claims.” (Internal quotation marks omitted.) Wittman v. Krafick, 67 Conn. App. 415, 416, 787 A.2d 559 (2001), cert. denied, 260 Conn. 916, 797 A.2d 516 (2002).

“Although we allow pro se litigants some latitude, the right of self-representation provides no attendant license not to comply with relevant rules of procedural and substantive law.” (Internal quotation marks omitted.) Id. In this case, we cannot reach the merits of the plaintiffs claims because his brief is devoid of any legal authority or legal analysis and, therefore, we deem the claims abandoned.

The decision of the workers’ compensation review board is affirmed.

       The conservatrix of the person and estate of the plaintiff, Linda Tomaszek, filed the present appeal on behalf of the plaintiff. The plaintiffs conservatrix also wrote the brief on the plaintiffs behalf.

       See generally 42 U.S.C. § 12101 et seq.