author: Spallone, J.

text:
    Linda Grynkewich v. Kevin McGinley
    (2738)
    Hull, Borden and Spallone, Js.
    Argued January 18
    decision released April 16, 1985

      Rita A. Steinberger, with whom, on the brief, was Lawrence J. Merly, for the appellant (defendant).
   Spallone, J.

The defendant is appealing from the trial court’s dismissal, suo motu, of his counterclaim for lack of subject matter jurisdiction under the Uniform Child Custody Jurisdiction Act (UCCJA). Connecticut General Statutes §§ 46b-90 through 46b-119.

The following facts are undisputed. The plaintiff and the defendant lived together in British Columbia, Canada, from April, 1978, until November, 1982. During that time, they had one child, Macon McGinley, bom December 10, 1978. In addition to Macon, two other children lived with the parties: Alexis Grynkewieh, the daughter of the plaintiff and her estranged husband, Gregory Grynkewieh; and Alanah McGinley, the daughter of the defendant and a former wife. The defendant had legal custody of Alanah. In November, 1982, the plaintiff, without the defendant’s knowledge, brought the three children to the United States. A private investigator employed by the defendant located the plaintiff and the children in West Haven, where they were staying with Gregory Grynkewieh and another man. In February, 1983, the plaintiff sent Alanah back to British Columbia, where she is now in the care of the defendant.

On March 21,1983, the plaintiff instituted this action in New Haven for a court order granting her custody of Macon. The defendant filed an answer and a counterclaim in which he sought custody of both Macon and Alexis. Slightly over a month later, the plaintiff withdrew her complaint, stating that at the time she brought the action she was contemplating becoming a resident of Connecticut, but that she had since changed her plans and moved to another state. She also filed a motion to dismiss the defendant’s counterclaim for lack of personal jurisdiction. The trial court found that since the plaintiff had not filed her motion to dismiss within thirty days after she had cause to know of the counterclaim by virtue of her appearance, she had waived the claim of lack of personal jurisdiction. Practice Book § 144. The court then dismissed the counterclaim for lack of subject matter jurisdiction under the UCCJA.

In appealing from the dismissal of his counterclaim, the defendant argues that the trial court erred in concluding that it did not have subject matter jurisdiction when it had not taken any evidence from the parties on that question. We agree.

The UCCJA creates a two tier approach to the issue of jurisdiction. Campbell v. Campbell, 388 N.E.2d 607, 608 (Ind. App. 1979). The first is contained in General Statutes § 46b-93, which establishes the general class of custody cases that will be within the trial court’s jurisdiction. The second tier is embodied in General Statutes § 46b-97, which is intended to vest only one state with jurisdiction at any given time. 6Campbell v. Campbell, supra, 609-10; Unif. Child Custody Jurisdiction Act § 7, Commissioners’ Note, 9 U.L.A. 139 (1979). In order to bring about a measure of interstate stability in custody awards, the UCCJA “limits custody jurisdiction to the state where the child has his home or where there are other strong contacts with the child and his family.” Unif. Child Custody Jurisdiction Act, Commissioners’ Prefatory Note, 9 U.L.A. 114 (1979). With the goal of opening up lines of communication and avoiding jurisdictional conflict, the UCC JA establishes a procedure which rests upon the notion that one state must assume major responsibility to determine who is to have custody of a particular child. Id.

Here, the court, on its own motion, dismissed the counterclaim. No affidavits as to subject matter jurisdiction had been filed and the parties were given no opportunity to present facts to explicate that question. A court’s decision on whether it has jurisdiction to make a child custody determination under General Statutes § 46b-93 should only be made “after a plenary hearing and with a full explication of the facts essential to the decision.” 1 McCahey, Kaufman, Kraut & Zett, Child Custody and Visitation Law and Practice § 4.01 [4]. A court’s competency to make this jurisdictional analysis does not create subject matter jurisdiction over the merits of the proceeding. Campbell v. Campbell, supra, 609 n.2. It does, however, advance the intent of the UCC JA by enabling the court “to arrive at a fully informed judgment which transcends state lines and considers all claimants, residents and nonresidents, on an equal basis and from the standpoint of the welfare of the child.” Unif. Child Custody Jurisdiction Act, Commissioners’ Prefatory Note, supra.

It is amply clear that a finding as to whether jurisdiction exists under any provision of General Statutes § 46b-93 rests upon a determination of fact by the trial court. The failure of a trial court to implement fully the multi-step process of the UCCJA in determining child custody jurisdiction and whether to exercise jurisdiction “will usually result upon appeal in a reversal or remand for further proceedings and appropriate findings.” 1 McCahey, Kaufman, Kraut & Zett, supra; see Kioukis v. Kioukis, 185 Conn. 249, 257, 440 A.2d 894 (1981). This is such a case.

Without comment as to the merits of the defendant’s counterclaim and with full awareness that the court may ultimately decline jurisdiction under General Statutes § 46b-97, we remand this case for an evidentiary hearing on its jurisdiction under General Statutes § 46b-93.

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

In this opinion the other judges concurred.

       The plaintiff’s counsel represented to the trial court that the plaintiff had moved to Georgia.

       Although the allegations of both the complaint and counterclaim are ambiguous as to what statutory procedure the parties are utilizing, we are considering this action as being brought under General Statutes § 46b-61, which provides: “In all cases in which the parents of a minor child live separately, the superior court for the judicial district where the parties or one of them resides may, on the complaint of either party and after notice given to the other, make any order as to the custody, care, education, visitation and support of any minor child of the parties, subject to the provisions of sections 46b-54, 46b-56, 46b-57 and 46b-66.” The intent of the legislature in enacting that statute was to expand the jurisdiction of the superior court in matters regarding minor children “to controversies involving parents . . . [who] were never married. ... 17 H.R. Proc., Pt. 6,1974 Sess., p. 2805.” Stevens v. Leone, 35 Conn. Sup. 237, 239, 406 A.2d 402 (1979).
      A “[cjustody determination” under the UCCJA “means a court decision and court orders and instructions providing for the custody of a child, including visitation rights; it does not include a decision relating to child support or any other monetary obligation of any person or any matter properly within the jurisdiction of any Court of Probate.” General Statutes § 46b-92 (2). As this matter is not one involving any monetary obligation or one which is properly within the jurisdiction of any Court of Probate, the trial court was correct in turning to the UCCJA for guidance as to its jurisdiction.

       We note that the plaintiff did not file a brief in this appeal and that neither the plaintiff nor her attorney appeared at oral argument before this court. This case, therefore, is being decided on the basis of the record and the defendant’s brief.

       General Statutes § 46b-93 provides: “(a) The superior court shall have jurisdiction to make a child custody determination by initial or modification decree if: (1) This state (A) is the home state of the child at the time of commencement of the proceeding, or (B) had been the child’s home state within six months before the commencement of the proceeding and the child is absent from this state because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this state; or (2) it is in the best interest of the child that a court of this state assume jurisdiction because (A) the child and his parents, or the child and at least one contestant, have a significant connection with this state, and (B) there is available in this state substantial evidence concerning the child’s present or future care, protection, training and personal relationships; or (3) the child is physically present in this state and (A) the child has been abandoned or (B) it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent; or (4) (A) it appears that no other state would have jurisdiction under prerequisites substantially in accordance with subdivision (2) or (3) of this subsection, or another state has declined to exercise jurisdiction on the ground that this state is the more appropriate forum to determine the custody of the child, and (B) it is in the best interest of the child that this court assume jurisdiction.
      “(b) Except under subdivisions (3) and (4) of subsection (a) of this section, physical presence in this state of the child, or of the child and one of the contestants, is not alone sufficient to confer jurisdiction on a court of this state to make a child custody determination.
      “(c) Physical presence of the child is not a prerequisite for jurisdiction to determine his custody.”

       General Statutes § 46b-97 provides: “(a) A court which has jurisdiction under this chapter to make an initial or modification decree may decline to exercise its jurisdiction any time before making a decree if it finds that it is an inconvenient forum to make a custody determination under the circumstances of the case and that a court of another state is a more appropriate forum.
      “(b) A finding of inconvenient forum may be made upon the court’s own motion or upon motion of a party or a guardian ad litem or other representative of the child.
      “(c) In determining if it is an inconvenient forum, the court shall consider if it is in the interest of the child that another state assume jurisdietical. For this purpose it may take into account the following factors, including but not limited to: (1) Another state is or recently was the child’s home state; (2) another state has a closer connection with the child and his family or with the child and one or more of the contestants; (3) substantial evidence concerning the child’s present or future care, protection, training and personal relationships is more readily availabe in another state; (4) the parties have agreed on another forum which is no less appropriate; and (5) the exercise of jurisdiction by a court of this state would contravene any of the purposes stated in section 46b-91.
      “(d) Before determining whether to decline or retain jurisdiction the court may communicate with a court of another state and exchange information pertinent to the assumption of jurisdiction by either court with a view to assuring that jurisdiction will be exercised by the more appropriate court and that a forum will be available to the parties.
      “(e) If the court finds that it is an inconvenient forum and that a court of another state is a more appropriate forum, it may dismiss the proceedings, or it may stay the proceedings upon condition that a custody proceeding be promptly commenced in another named state or upon any other conditions which may be just and proper, including the condition that a moving party stipulate his consent and submission to the jurisdiction of the other forum.
      “(f) The court may decline to exercise its jurisdiction under this chapter if a custody determination is incidental to an action for dissolution of marriage, divorce or another proceeding while retaining jurisdiction over the dissolution of marriage, divorce or other proceedings.
      “(g) If it appears to the court that it is clearly an inappropriate forum, it may require the party who commenced the proceedings to pay, in addition to the costs of the proceedings in this state, necessary travel and other expenses, including attorneys’ fees, incurred by other parties or their witnesses. Payment is to be made to the clerk of the court for remittance to the proper party.
      “(h) Upon dismissal or stay of proceedings under this section, the court shall inform the court found to be the more appropriate forum of this fact, or if the court which would have jurisdiction in the other state is not certainly known, shall transmit the information to the court administrator or other apppropriate official for forwarding to the appropriate court.
      “(i) Any communication received from another state informing this state of a finding of inconvenient forum because a court of this state is the more appropriate forum shall be filed in the custody registry of the appropriate court. Upon assuming jurisdiction the court of this state shall inform the original court of this fact.”

       It is possible that facts adduced at an evidentiary hearing on remand might reveal that Connecticut has jurisdiction under the “best interest of the child” test in General Statutes § 46b-93 (a) (2). This is a determination which cannot be made by this court on appeal. Kioukis v. Kioukis, 185 Conn. 249, 257, 440 A.2d 894 (1981).


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    James S. Mable v. Bass Transportation Co. et al.
    (2764)
    Dupont, C.P.J., Borden and Spallone, Js.
    Argued March 8
    decision released April 16, 1985

      William B. Rust, with whom, on the brief, was Edward M. Sheehy, for the appellants (defendants).

      Michael A. Dowling, for the appellee (intervening plaintiff Curtis Packaging Company).
   Per Curiam.

This appeal was taken from the judgment of the trial court striking the defendants’ third amended counterclaim. We find no error.

The action arises from an injury sustained by the plaintiff while working at Curtis Packaging Company in June, 1980. The plaintiff’s foot had been pinned between a metal plate on a loading dock and a dock wall at Curtis Packaging Company, by a tractor-trailer owned by the defendant, Bass Transportation Company, and driven by one of its employees. The plaintiff received workers’ compensation benefits from Curtis Packaging Company for his injuries.

The plaintiff then instituted this negligence action against Bass Transportation Company and the driver of the tractor-trailer. Curtis Packaging Company was permitted by the trial court to intervene as a plaintiff to recover the workers’ compensation benefits it had paid to the plaintiff. The defendants filed a counterclaim against the intervening plaintiff, seeking indemnification for the plaintiff’s claim. The counterclaim alleged that the intervening plaintiff was actively negligent in causing the plaintiff’s injuries, that the defendants were only passively negligent and that, therefore, the intervening plaintiff should bear the entire burden of damages. The intervening plaintiff moved to strike the counterclaim on the grounds that the Workers’ Compensation Act bars such a counterclaim; General Statutes § 31-284; and that Connecticut law prohibits contribution or indemnification between joint tortfeasors. The trial court, Stoughton, J., granted the motion to strike because the defendants failed to allege any special duty owed to the defendants. See 2A Larson, Workmen’s Compensation §§ 76.00, 76.50.

The defendants filed a second amended counterclaim, alleging all the facts set forth in the original counterclaim and adding an allegation that a duty was owed by the intervening plaintiff to the defendants, who were business invitees on the premises. The intervening plaintiff moved to strike this amended counterclaim on the ground that this counterclaim was essentially the same as the one previously stricken by the court and should be stricken for the same reasons. The trial court, Stoughton, J., granted the motion to strike the amended counterclaim. In a lengthy and detailed memorandum of decision dated June 14,1983, the court held that the duty owed to business invitees is to prevent physical injury, not the kind of indirect and contingent economic harm such as was alleged here, and that no independent legal relationship existed between the intervening plaintiff and the defendant Bass Transportation Company other than that of joint tortfeasors, for which there is no right of indemnnification. The court concluded that the cause of action asserted in the counterclaim was therefore barred by the Workers’ Compensation Act.

The defendants filed a third amended counterclaim, which essentially was the same as the previous one, with the added allegation that the intervening plaintiff had exclusive control of the situation in which the plaintiff was injured. The intervening plaintiff again moved to strike. The trial court, O’Brien, J., granted the motion to strike on the ground that the new allegation added nothing to the cause of action alleged in the second amended counterclaim and should be stricken for the reasons stated in Judge Stoughton’s memorandum of decision dated June 14, 1983. The defendants appealed from the judgment following Judge O’Brien’s decision.

We agree with Judge O’Brien that the new allegations in the third amended counterclaim added nothing to the previous counterclaim, and we adopt the reasoning contained in Judge Stoughton’s memorandum of decision of June 14,1983, which addressed all the pertinent issues in a plenary fashion. Mable v. Bass Transportation Co., 40 Conn. Sup. 253, 490 A.2d 548 (1983) . “After examining the record on appeal and after a detailed consideration of the briefs and arguments of the parties in this case, we conclude that there is no error in the judgment of the trial court ‘and that the memorandum of decision filed by the trial court adequately and properly disposes of the contentions of the parties before us. That decision may be referred to for a detailed discussion of the facts and the applicable law. It would serve no useful purpose to repeat them here.’ Hinchliffe v. American Motors Corporation, 192 Conn. 252, 253-54, 470 A.2d 1216 (1984); Ribicoff v. Division of Public Utility Control, 187 Conn. 247, 248, 445 A.2d 324 (1982).” Herold Fund, Inc. v. Commissioner of Revenue Services, 2 Conn. App. 660, 663, 481 A.2d 761 (1984) .

There is no error.


text:
    Louise M. Smith v. Planning and Zoning Board of the City of Milford et al.
    (2155)
    Dupont, C.P.J., Borden and Spallone, Js.

      Argued January 10
    decision released April 16, 1985

      Stephen W. Struder, with whom, on the brief, was Richard J. Buturla, for the appellant (plaintiff).

      Bruce L. Levin, with whom, on the brief, was Donald H. Blanchard, for the appellee (named defendant).

      William B. Barnes, with whom, on the brief, was Lewis A. Hurwitz, for the appellee (defendant Bic Pen Corporation).
   Spallone, J.

This is an appeal from a judgment of the trial court dismissing the plaintiffs appeal from a decision of the defendant planning and zoning board of the city of Milford.

The plaintiff is a life tenant of real property, otherwise known as Caswell Springs Farm, located within a radius of one hundred feet of Caswell Street in Milford. In 1979, the plaintiff’s husband conveyed Caswell Springs Farm to the defendant Bic Pen Corporation (hereinafter Bic), reserving a life estate in the premises for himself and his wife. In September, 1982, Bic filed an application with the board to change the name of Caswell Street to Bic Drive. At a public hearing on the application held on September 12,1982, the plaintiff appeared and objected to the change of name. On October 5,1982, the board voted to approve the application. The plaintiff appealed to the Superior Court from that action.

Bic moved to dismiss the appeal on the ground that the plaintiffs interest as a life tenant of property owned by Bic did not constitute “aggrievement” as required by our statutes. The trial court granted Bic’s motion and dismissed the appeal, noting that the plaintiff’s position as life tenant does not constitute record ownership so as to qualify her as an aggrieved person.

In the plaintiff’s appeal from that dismissal, the dis-positive issue is whether she, as a co-holder of a life interest in property, is a “person owning land” entitled to appeal under General Statutes § 8-8. We find that she is.

General Statutes § 8-8 employs two criteria for the determination of whether a person has standing to appeal. A person must either be aggrieved by an official action or decision of a zoning board, or have the status of an owner of land abutting or within a radius of one hundred feet of any portion of the property involved in such action or decision. Those in the second category need not prove aggrievement independent of their status as owners of property bearing the necessary relation to property involved in the board’s action. See Walls v. Planning & Zoning Commission, 176 Conn. 475, 476, 408 A.2d 252 (1979).

The word “owner” is frequently used in our statutes and has no commonly approved usage or fixed meaning. The term must be interpreted in context according to the circumstances in which it is used. Hope v. Cavallo, 163 Conn. 576, 580, 316 A.2d 407 (1972). “The term ‘owner’ is one of general application and includes one having an interest other than the full legal and beneficial title. Coyle v. Swanson, 345 Mass. 126, 128, 185 N.E.2d 741 [1962].” Id., 580.

“A life estate is an interest in real property, the duration of which is limited by the life of some person. Such person may be the party creating the estate, the tenant himself, or some other person or persons. It may be for an indefinite period which may last for a life. It is of no consequence how uncertain the duration of the estate may be. If it can or may continue during a life, it is a freehold or life estate. It outranks an estate for hundreds of years, because it is said that no one knows how long a man may live. . . . It is held that a life estate in land is ‘real property,’ enabling the owner to sell or encumber it, and, if it be nonexempt property, it may be attached for the owner’s debts or levied upon by execution and sold.” 4 Thompson, Real Property § 1893.

In cases involving real estate, the term “owner” is generally defined with reference to title. Warner v. Leslie-Elliott Constructors, Inc., 194 Conn. 129, 137, 479 A.2d 231 (1984); Consolidated Diesel Electric Corporation v. Stamford, 156 Conn. 33, 37, 238 A.2d 410 (1968). The standards governing marketability of title in our state are set forth in the Connecticut Marketable Title Act. General Statutes §§ 47-33b through 47-33L Insofar as a life estate may be sold or encumbered, that act may be fruitfully examined for guidance in determining those interests in land which our legislature has deemed sufficient to warrant its protection. General Statutes § 47-33e states that “any person dealing with the land” may take marketable record title. “Person dealing with land” is defined in General Statutes § 47-33b (d) as including “a purchaser of any estate or interest [in the land] . . . .” The plaintiff, as the holder of a life interest expressly reserved by recorded deed, is thus a person whose title is protected under the Connecticut Marketable Title Act. One who owns an interest sufficient to warrant such protection ought logically to be able to safeguard that interest through the avenue of appeal provided in General Statutes § 8-8.

All property is held subject to the police power; State v. Hillman, 110 Conn. 92, 105, 147 A. 294 (1929); and zoning rests upon the reasonable exercise of this power in the public interest. Vartelas v. Water Resources Commission, 146 Conn. 650, 657, 153 A.2d 822 (1959). Although “[t]he relative shortness in duration of an estate for life lessens the frequency with which the desires of the owner of such an interest clash with the communal will . . . [pjolice regulations of property use, for the preservation of public health, safety, morals and welfare, [nevertheless] concern him vitally.” 2 Powell, Real Property § 203[1].

The purpose of zoning is to regulate property uses in conformance with a comprehensive plan in a manner to advance the public welfare. Samp Mortar Lake Co. v. Town Plan & Zoning Commission, 155 Conn. 310, 313, 231 A.2d 649 (1967). Because zoning legislation is in derogation of private rights, the legislature has provided various mechanisms to protect property owners against changes to which they object. Steiner, Inc. v. Town Plan & Zoning Commission, 149 Conn. 74, 76, 175 A.2d 559 (1961). The provisions of statutes designed to provide this protection must be construed in a way to safeguard individual rights as well as to further the public interest. Id. Since the right of appeal created in General Statutes § 8-8 provides such a safeguard, we construe the words “any person owning land” to encompass one who owns a life estate.

Bic argues that the plaintiff is also not entitled to appeal in the absence of her husband, the co-holder of a life estate in the property. Although it appears that this argument was not raised in the trial court, we shall address it because, in our opinion, it is in the interest of justice between the parties to do so; Kavanewsky v. Zoning Board of Appeals, 160 Conn. 397, 401, 279 A.2d 567 (1971); and because this issue is likely to recur on remand. Bank of Montreal v. Gallo, 3 Conn. App. 268, 276, 487 A.2d 1101 (1985).

Our legislature has specifically addressed the question of joinder among cotenants. General Statutes § 52-77 provides that “[a]ny joint tenant or tenant in common of land may maintain an action in his own name for any injury thereto; but the nonjoinder of the other tenants may be shown by the defendant in reduction of damages, and the plaintiff shall only recover for the damage to his interest.”

General Statutes § 8-8 states that “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” may appeal. (Emphasis added.) The statute does not require that a person be an owner in any particular capacity or degree to bring an appeal from a decision of a zoning board. See Hayden v. Zoning Board of Appeals, 26 Conn. Sup. 168, 169, 214 A.2d 837 (1965). Thus, a co-owner of property who pleads a threatened injury to a specific proprietary interest therein has been held to have the right to appeal as an “aggrieved” person under the first prong of General Statutes § 8-8. Id., 170. We likewise find, under the second prong of that statute, that a co-owner of property is entitled to appeal as an owner of 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 . . .

There is error, the judgment for the defendants is set aside and the case is remanded for further proceedings in accordance with this opinion.

In this opinion the other judges concurred.

       This appeal was originally filed in the Appellate Session of the Superior Court. General Statutes § 51-197a (c).

       General Statutes § 8-8 provides in pertinent part: “(a) Any person or persons severally or jointly aggrieved by any decision of [a 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, or any officer, department, board or bureau of any municipality, charged with the enforcement of any order, requirement or decision of said board, may, within fifteen days from the date when notice of such decision was published in a newspaper pursuant to the provisions of section 8-3 or 8-7, as the case may be, take an appeal to the superior court for the judicial district in which such municipality is located, which appeal shall be made returnable to said court in the same manner as that prescribed for civil actions brought to said court.”


author: Borden, J.

text:
    University Realty, Inc., et al. v. Planning Commission of the City of Meriden
    (3348)
    Dupont, C.P.J., Hull and Borden, Js.
    Argued January 8
    decision released April 16, 1985

      Marjorie H. Drake, for the appellant (defendant).

      William T. Shea, with whom, on the brief, was Antoinette E. Grenier, for the appellees (plaintiffs).
   Borden, J.

The defendant, the planning commission of the city of Meriden, appealed from the judgment of the trial court sustaining the appeal of the plaintiffs from a decision of the defendant. That decision had denied the plaintiffs’ application for site plan approval to use certain property as a retail outlet for gasoline products, and for retail stores, an automobile service center and a restaurant. The trial court held that the decision of the defendant was not rendered within the time constraints of General Statutes § 8-3 (g) and 8-7d (b), that the plaintiffs had not consented to an extension of those time constraints and that, therefore, the certificate of approval must issue.

The defendant filed a petition for certification to appeal to this court under General Statutes § 8-8 (g) and Practice Book § 3137. We granted the petition on the basis that its reasons stated substantial claims for review under Practice Book § 3137 (1) and (4). See footnote 3, supra. Upon full consideration, we find no error.

The following chronology of events preceding the plaintiffs’ application and the facts concerning it are not in dispute. In December, 1982, the zoning board of appeals (ZBA) of the city approved an application for a certificate to use the property for the sale of gasoline and related products. See General Statutes (Rev. to 1981) §§ 14-319 and 14-321. This approval was subject to certain conditions, one of which was approval from the defendant of the site development of the property as required by the city zoning regulations. In July and October, 1983, the applicant secured approval from the city’s flood and erosion commission and inland wetlands and watercourse commission.

Meanwhile, on July 6, 1983, the plaintiffs filed with the defendant their application for a certificate of approval of a site plan for the proposed construction of the gasoline station and retail building on the property. The next regularly scheduled meeting of the defendant was July 13,1983. The defendant first considered the application at its meeting of August 10, 1983. That meeting was preceded, on August 9,1983, by a letter from the defendant’s staff to the plaintiffs’ attorney detailing a number of staff comments on the site plan and, on August 10, 1983, by a staff agenda memorandum to the defendant outlining the procedural history of the application and several of the comments contained in the August 9,1983 letter to the plaintiffs’ attorney. At the August 10, 1983 meeting the staff’s concerns were noted, the plaintiffs’ attorney explained the ZB A application, and he requested tabling the application. The defendant tabled the application.

The next meeting of the defendant was on September 12, 1983. The city planner reported that the staff had completed its review and forwarded its comments to the plaintiffs, that the plaintiffs addressed those comments in a revised site plan, but that some staff concerns remained. The city engineer also reported a concern. The defendant tabled the application.

The next and final meeting of the defendant was on October 12,1983. After lengthy discussion, the defendant denied the plaintiffs’ application on the grounds that the proposal created a potential traffic problem, that it might impair the welfare and safety of the public, and that it violated the general purpose of the zoning ordinance to promote health, safety and general welfare.

The parties do not dispute that the plaintiffs’ application was governed by General Statutes §§ 8-3 (g), 8-7d (b) and 8-7d (c). These sections provide that in cases of this type, where approval of a site plan is all that is required for a proposed building and use, the decision on the application for approval of the site plan “shall be rendered within sixty-five days after receipt of such site plan.” General Statutes § 8-7d (b). The applicant may withdraw the plan or consent to extensions of the sixty-five day period, but the total period within which the decision must be made cannot exceed two further sixty-five day periods. Id. The “day of receipt of a[n] . . . application” is computed as the “day of the next regularly scheduled meeting of such commission . . . immediately following the day of submission to such . . . commission or its agent . . . .” General Statutes § 8-7d (c).

The trial court reasoned, and we agree, that the sixty-five day clock began on July 13, 1983, which was the date of the first regularly scheduled meeting of the defendant following July 6, 1983, the date of receipt of the plaintiffs’ application by the defendant or its staff. The court also reasoned, and we agree, that the facts in this record did not stop the running of that clock and that, therefore, the denial of the application by the defendant on October 12, 1983, was untimely under General Statutes § 8-3 (g).

I

The defendant first argues, relying on General Statutes § 8-7d (b) and on Vartuli v. Sotire, 192 Conn. 353, 472 A.2d 336 (1984), that the trial court erred in rejecting its claim that the submission of a revised site plan triggered a new sixty-five day period within which the defendant was empowered to act. See footnotes 4 and 6, supra. We disagree.

The defendant’s argument focuses on the language of General Statutes § 8-7d (b) that “a decision on an application for approval of such site plan shall be rendered within sixty-five days after receipt of such site plan.” This focus ignores, however, other language of the statute and its history, which require the contrary conclusion that, in measuring when the clock begins to run, the statute focuses on receipt of the application, not the accompanying site plan.

Section 8-7d, as it presently exists and insofar as is relevant to this case, is the product of No. 77-450 of the 1977 Public Acts and No. 78-104 of the 1978 Public Acts. Those acts must be read so as to harmonize all their parts to make sense; Shelby Mutual Ins. Co. v. Della Ghelfa, 3 Conn. App. 432, 438, 489 A.2d 398 (1985); and with a recognition that the legislature acted with cognizance of existing law. Warner v. Leslie-Elliot Constructors, Inc., 194 Conn. 129, 134, 479 A.2d 231 (1984).

Section 4 of Public Acts 1977, No. 77-450 created subsections (a), (b) and (c) of General Statutes § 8-7d. See footnote 6, supra. The newly-fashioned subsection (a) provided that, except as provided in subsection (b), where a hearing is required on a matter before a zoning authority “such hearing shall commence within sixty-five days after receipt of such . . . application . . . . ” (Emphasis added.) Subsection (b) addressed the situation where only site plan approval is required, and provided for “[a] decision on an application for approval of a site plan . . . within sixty-five days after receipt of such site plan.” (Emphasis added.) Subsection (c) furnished the measuring device for both subsections (a) and (b) by providing, inter alia, that “the date of receipt of [an] . . . application . . . shall be the date of the next regularly scheduled meeting of such commission . . . immediately following the official receipt by such . . . commission of such . . . application . . . (Emphasis added.)

To harmonize the somewhat contradictory language of subsection (b) with subsection (c), and the three subsections with each other, it is necessary to read the reference in subsection (b) to “receipt of such site plan” as a repetition of the earlier reference in the same sentence to the receipt of the “application for approval of a site plan.” It would have made little legislative sense for the legislature, in the same public act, to set up two differing temporal measurements for such closely related zoning matters. This is particularly so because local zoning authorities are typically composed of laypersons without legal training and, therefore, are better served by legislative directions which are uniform and definite.

It is of further significance that Public Acts 1977, No. 77-450 was enacted after the decision in Finn v. Planning & Zoning Commission, 156 Conn. 540, 546, 244 A.2d 391 (1968), in which the Supreme Court held that the sixty-five day time constraint in the subdivision statute; General Statutes § 8-26; “relates to the application rather than to the maps or plans which are incidental thereto.” There is no reason to suppose that the legislature meant otherwise in General Statutes § 8-7d, and there is no indication in the legislative history of Public Acts 1977, No. 77-450 of an intent to depart from Finn. 20 H.R. Proc., Pt. 6,1977 Sess., pp. 2511-12; 20 S. Proc., Pt. 7, 1977 Sess., pp. 2767-69; 20 S. Proc., Pt. 8, 1977 Sess., pp. 2999-3000. Public Acts 1978, No. 78-104, § 1, further refined General Statutes § 8-7d (c) by changing the reference to “official receipt” by the commission to “day of submission” to the commission “or its agent . . . .” We conclude, therefore, that, on the facts of this case, under General Statutes § 8-7d the sixty-five day period for the plaintiffs’ application for site plan approval started to run from July 13,1983, which was the day of the next regularly scheduled meeting of the commission following the submission of the plaintiffs’ application to the commission or its agent.

Nor is the defendant’s reliance on Vartuli v. Sotire, supra, persuasive. In that case, in which the Supreme Court held, inter alia, that the Coastal Management Act incorporates the mandatory time limits of General Statutes §§ 8-3 (g) and 8-7d (b), the court measured the sixty-five day period from the next regularly scheduled meeting of the local zoning authority following the submission of the revised application. Id., 355, 366. Thus, Vartuli is consistent with Finn, and with our reading of General Statutes § 8-7d.

II

The defendant next argues that the plaintiffs’ request to the defendant, on August 10, 1983, to table their application constituted consent to an extension of time under General Statutes § 8-7d (b). See footnote 6, supra. We disagree.

The trial court held that although consent to some extension of time was implicit in the tabling of the application, General Statutes § 8-7d (b) contemplates consent only to one or two periods of sixty-five days each, and that this consent was not to any such period. Our view of this claim of the defendant renders it unnecessary for us to consider whether General Statutes § 8-7d (b) permits consent by the applicant to periods less than sixty-five days.

The provision in General Statutes § 8-7d (b) that “[t]he applicant may consent to one or more extensions of such period” of sixty-five days, but no more than two such periods, is, like the sixty-five day requirement itself, “for the protection of the [applicant].” Vartuli v. Sotire, supra, 360. This is apparent from the fact that it vests solely in “[t]he applicant” the power to “consent to one or more extensions . . . .’’General Statutes § 8-7d (b). It does not, as it might have, give the commission the power to extend the time even for one such period. Thus, we must construe the provision in the applicants’ favor.

Furthermore, tabling of the application, albeit done at the plaintiffs’ request, was an action of the commission. It was not, like consent or withdrawal, an action of the plaintiffs. The commission need not have acceded to the request; it could have denied or ignored it. Having itself tabled the application, it cannot convert its own parliamentary action into statutory consent by the plaintiffs. This is particularly so here, where the defendant’s own minutes, supported by the rest of the administrative record, indicate that the plaintiffs’ request to table was in response to the defendant’s staff’s comments on the application.

Under these circumstances, the plaintiffs’ request to table was, by itself, too slim an evidentiary reed on which to hang a finding of consent. We note that, in a closely related context, the Supreme Court has “observe[d] that when consent for such an extension is given, prudence dictates that such consent be given in writing.” Metropolitan Homes, Inc. v. Town Plan & Zoning Commission, 152 Conn. 7, 14, 202 A.2d 241 (1964). We thus affirm the trial court’s conclusion on a basis different from that used by it, which we are free to do. Bencivenga v. Zoning Board of Appeals, 2 Conn. App. 384, 387, 478 A.2d 1049 (1984).

III

We consider the defendant’s final two arguments together. They are (1) that on September 13,1983, by acquiescing in the further tabling of the application and agreeing to meet with the defendant’s staff, the plaintiffs consented to an extension, and (2), citing M & L Homes, Inc. v. Zoning & Planning Commission, 187 Conn. 232, 445 A.2d 591 (1982), that by this acquiescence, and by failing to raise the issue of timeliness until more than four months after appealing to the court, the plaintiffs waived the legal claim of untimeliness.

Our earlier conclusion, that the plaintiffs did not consent to an extension by requesting that the defendant table the application, renders the defendant’s first argument here an a fortiori case. As to the second argument, suffice it to say that the applicant’s withdrawal of its subdivision application, which the Supreme Court found dispositive in M & L Homes, Inc. v. Zoning & Planning Commission, supra, is hardly analogous to the plaintiffs’ conduct here. Nor can that conduct be viewed as supporting a finding of waiver. Cf. Metropolitan Homes, Inc. v. Town Plan & Zoning Commission, supra.

There is no error.

In this opinion the other judges concurred.

       The plaintiffs are the corporation which owns the property in question and its principal, who was the applicant to the defendant.

       General Statutes § 8-8 (g) provides, with respect to zoning appeals decided by the Superior Court: “There shall be no right to further review except to the appellate court by certification for review, upon the vote of two judges of the appellate court so to certify and under such other rules as the judges of the appellate court establish. The procedure on such appeal to the appellate court shall, except as otherwise provided herein, be in accordance with the procedures provided by rule or law for the appeal ))

       Practice Book § 3137, made applicable to this court by Practice Book § 2000, provides in pertinent part: “basis for certification. Certification by the [appellate] court on petition by a party ... is not a matter of right but of sound judicial discretion and will be allowed only where there are special and important reasons therefor. The following, while neither controlling nor fully measuring the court’s discretion, indicate the character of the reasons which will be considered: (1) Where the court below has decided a question of substance not theretofore determined by the supreme court or has decided it in a way probably not in accord with applicable decisions of the supreme court. (2) Where the decision under review is in conflict with other decisions of the court below. (3) Where the court below has so far departed from the accepted and usual course of judicial proceedings, or so far sanctioned such a departure by any other court, as to call for an exercise of the [appellate] court’s supervision. (4) Where a question of great public importance is involved.”

       Although the defendant asserts in its brief that the revised plan was submitted at the defendant’s September 13,1983 meeting, the documents and the record create some confusion about this date. The first sheet of the plaintiffs ultimate plan, which was the subject of the defendant’s ultimate denial, indicates an original date of July 1, 1983, with revisions of August 25,1983, September 8,1983, September 30,1983, and October 13, 1983, and a receipt stamp of the planning department of October 11,1983. The second sheet indicates an initial date of September 30,1983, with notes added on October 11,1983, and a receipt stamp of October 11, 1983. The third sheet indicates an initial date of July 1, 1983, with notes added on September 8, 1983 and October 11, 1983, and a receipt stamp of October 11, 1983. The final four sheets all indicate initial dates in April and May, 1983, and receipt by the planning department on July 6,1983. To confuse the matter further, there is a covering letter from the plaintiff’s engineer to the city planner, dated October 3, 1983, and receipt stamped October 3,1983, referring to a site development plan revised to reflect comments made by the city planner and engineering department at a recent meeting of the plaintiffs’ engineer. Thus, there is some doubt about precisely when a revised plan was submitted by the plaintiffs and what it constituted. Because of the view we take of the case, it is not necessary to resolve this issue. It is clear, however, that the revisions were made in response to suggestions by the defendant’s staff and the city’s engineering department.

       General Statutes Section 8-3 (g) provides that, when a municipality’s “zoning regulations . . . require that a site plan be filed with the [planning] commission . . . to aid in determining the conformity of a proposed building, use or structure with . . . such regulations . . . [ajpproval of a site plan shall be presumed, unless a decision to deny or modify it is rendered within the period specified in section 8-7d. ” (Emphasis supplied.) Section 8-7d (b) applies to this case, because approval of the plaintiffs’ site plan was the only remaining requirement for their proposed building and use.

       General Statutes § 8-7d provides: “hearings and decisions, time limits. DAY of receipt, (a) Except as provided in subsection (b) of this section, in all matters wherein a formal petition, application, request or appeal must be submitted to a zoning commission, planning and zoning commission or zoning board of appeals under this chapter and a hearing is required on such petition, application, request or appeal, such hearing shall commence within sixty-five days after receipt of such petition, application, request or appeal and shall be completed within thirty days after such hearing commences. All decisions on such matters shall be rendered within sixty-five days after completion of such hearing. The petitioner or applicant may consent to one or more extensions of any period specified in this subsection, provided the total extension of any such period shall not be for longer than the original period as specified in this subsection, or may withdraw such petition, application, request or appeal.
      “(b) Whenever the approval of the site plan is the only requirement to be met or remaining to be met under the zoning regulations for a proposed building, use or structure, a decision on an application for approval of such site plan shall be rendered within sixty-five days after receipt of such site plan. The applicant may consent to one or more extensions of such period, provided the total period of any such extension or extensions shall not exceed two further sixty-five-day periods, or may withdraw such plan.
      “(c) For purposes of subsection (a) or (b) of this section, the day of receipt of a petition, application, request or appeal shall be the day of the next regularly scheduled meeting of such commission or board, immediately following the day of submission to such board or commission or its agent of such petition, application, request or appeal or thirty-five days after such submission, whichever is sooner. If the commission or board does not maintain an office with regular office hours, the office of the clerk of the municipality shall act as the agent of such commission or board for the receipt of any petition, application, request or appeal.
      “(d) The provisions of subsection (a) of this section shall not apply to any action initiated by any zoning or planning and zoning commission regarding adoption or change of any zoning regulation or boundary.”

       We do not dismiss the possibility that a revised site plan may be submitted to a zoning authority which differs so substantially from the original that it could itself constitute a revised application, triggering a new sixty-five day period so as to give the authority ample time to review it. This record, however, does not support such a finding. Since it does not contain the original site plan, we have no basis for such a comparison. Furthermore, the commission here did not rely on that ground for its denial of the plaintiffs’ application.


text:
    Patrick Bergin et al. v. Dorothy Bergin et al., Administratrices (Estate of Elizabeth Bergin)
    (2222)
    Dupont, C.P.J., Hull and Spallone, Js.

      Argued January 16
    decision released April 16, 1986

      David W. Winters, for the appellants (plaintiffs).

      William J. St. John, and David W. McGill, for the appellees (defendants).
   Spallone, J.

The plaintiffs have appealed from a judgment of the Superior Court dismissing their appeal from the Cheshire Probate Court.

Elizabeth Bergin died testate. Edward Bergin, her nephew and the father of the plaintiffs, was a beneficiary under her will. He predeceased the testatrix. The Probate Court construed Elizabeth Bergin’s will in such a way as to determine that the bequest to Edward Bergin lapsed and passed by intestacy to the heirs of the testatrix, rather than to the plaintiffs.

On December 1,1982, the Probate Court granted the plaintiffs’ motion to appeal to the Superior Court. The appeal was returnable on January 25,1983, and counsel for the defendants filed an appearance on that date. Process, however, was not returned until February 1, 1983. On February 15, 1983, the defendants filed a motion to dismiss on the grounds that the return was untimely and that the allegations of aggrievement underlying the appeal were insufficient. The parties stipulated that the defendant was not prejudiced by the late return and requested that the motion to dismiss be decided on the papers. The trial court granted the motion without specifying its reasons for so doing.

The focal issue in this case is whether the late return of process is a circumstantial defect, correctable by amendment, or a substantive defect rendering the appeal voidable upon timely motion by the defendants. Since we find that the late return of process is a substantive defect and that the trial court did not err in dismissing the appeal, we need not reach the question of whether the plaintiffs were aggrieved.

The right to appeal from the decision of a Probate Court is purely statutory; General Statutes § 45-288; and the requirements fixed by statute for taking and prosecuting the appeal must be met. The Superior Court is without jurisdiction to entertain an appeal from probate unless the appeal complies with the conditions designated by statute as essential to the exercise of this power. Exchange Buffet Corporation v. Rogers, 139 Conn. 374, 376, 94 A.2d 22 (1952).

For purposes of mesne process, a probate appeal is considered a civil action. Campbell’s Appeal, 76 Conn. 284, 56 A. 554 (1903). As such, the requirement of General Statutes § 52-46a, which states that process in civil actions returnable to the Superior Court must be returned at least six days before the return day, must be satisfied.

Statutory limitations upon the time for the taking of an appeal and for the return of process implement the speedy determination of the issues involved. Valley Cable Vision, Inc. v. Public Utilities Commission, 175 Conn. 30, 35, 392 A.2d 485 (1978). Such time limitations “on the enforcement of a right, created by statute and not existing at common law, [are] a part of the right and must be met in order to provide a court with jurisdiction to hear the cause of action. Karp v. Urban Redevelopment Commission, 162 Conn. 525, 529, 294 A.2d 633 (1972).” Wilburn v. Mount Sinai Medical Center, 3 Conn. App. 284, 288, 487 A.2d 568 (1985). “Where return of service is not timely . . . the courts have uniformly held that the defect cannot be cured by amendment. Safford v. Morris Metal Products Co., 99 Conn. 372, 121 A. 885 (1923); Denison v. Crafts, 74 Conn. 38, 49 A. 351 (1901); LaMothe v. Gordon, 15 Conn. Sup. 504 (1948). The rationale of this proposition appears to be that once the date for return has passed there is nothing before the court which can be amended.” William J. Petzold, Inc. v. Commissioner of Revenue Services, 39 Conn. Sup. 247, 249, 476 A.2d 1094 (1984).

Late return of process renders an action voidable, rather than void. Id.; 1 Stephenson, Conn. Civ. Proc. (2d Ed.) § 22 (b). Since the defendants, in this case, chose not to waive this defect and timely filed a motion to dismiss, the trial court properly dismissed the appeal.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 52-123 provides as follows: “No writ, pleading, judgment or any kind of proceeding in court or course of justice shall be abated, suspended, set aside or reversed for any kind of circumstantial errors, mistakes or defects, if the person and the cause may be rightly understood and intended by the court.”

       General Statutes § 52-46a provides as follows: “Process in civil actions returnable to the supreme court shall be returned to its clerk at least twenty days before the return day and, if returnable to the superior court, except process in summary process actions, to the clerk of such court at least six days before the return day.”


author: Hull, J.

text:
    Arthur J. Kusha v. Waldemar Respondowski et al.
    (2616)
    Dupont, C.P.J., Hull and Spallone, Js.
    Argued January 16
    decision released April 28, 1985

      James H. Aspinwall, for the appellant (plaintiff).

      Robert R. Petrucelli, for the appellees (defendants).
   Hull, J.

This appeal presents the single issue of whether the plaintiff, having fled eleven offers of judgment prior to trial, is entitled to an award of interest on the amount of his fourth offer of judgment, the highest of his offers of judgment which was below the amount which he was subsequently awarded by the jury. We conclude that the trial court erred in not granting the plaintiff an award of interest.

On February 9,1978, this action was commenced as the result of an automobile accident involving the plaintiff, Arthur J. Kusha, and the defendant Waldemar Respondowski. Subsequently, Kusha filed a total of eleven offers of judgment, pursuant to Practice Book § 346 and General Statutes (Rev. to 1981) § 52-192a (a), according to the following schedule:

July 23, 1979 $65,000

September 13, 1979 $75,000

December 31, 1979 $85,000

May 7, 1980 $95,000

November 12, 1980 $105,000

February 25, 1981 $115,000

April 1, 1981 $125,000

September 18, 1981 $135,000

November 2, 1981 $145,000

January 1, 1982 $160,000

March 9, 1982 $200,000

None of those offers was accepted by the defendants and, on June 6, 1983, after a trial on the merits, the jury returned a plaintiffs verdict in the amount of $96,486.67.

The plaintiff thereafter moved, pursuant to Practice Book § 350 and General Statutes § 52-192a (b), for an award of interest on the amount of his largest offer for judgment which was less than or equal to the verdict returned. The court declined to award such interest and from that decision the plaintiff appeals.

General Statutes § 52-192a (b), at the time the plaintiff’s final offer was made, provided in pertinent part: “After trial the court shall examine the record to determine whether the plaintiff made an ‘offer of judgment’ which the defendant failed to accept. If the court ascertains from the record that the plaintiff has recovered an amount equal to or greater than the sum certain stated in his ‘offer of judgment,’ the court shall add to the verdict twelve per cent annual interest on the amount contained in such offer, computed from the date such offer was filed in actions commenced before [October 1, 1981]. . . . For purposes of this computation, the largest ‘offer of judgment’ which was equal to or less than the verdict shall be used.”

In the present case, the trial court concluded that “no interest is due the plaintiff because he did not recover an amount greater than his largest offer of judgment which as aforesaid was $200,000. If the plaintiff had stopped at the $95,000 offer of judgment, then he would be entitled to interest, but he went further and submitted [seven] more offers of judgment, all greater than the jury verdict.” That conclusion adds to General Statutes § 52-192a (b) a requirement which it does not actually contain, for nowhere in the statute is there a requirement that all of the plaintiff’s offers must be less than the amount actually recovered.

The defendants place heavy emphasis on the language found in the offer of judgment statute; General Statutes § 52-192a (b); which provides that “[f]or purposes of this computation, the largest ‘offer of judgment’ which was equal to or less than the verdict shall be used. ” (Emphasis added). This argument, however, relies solely on the four words “largest ‘offer of judgment’ ” without taking into account the effect of the following phrase. When read in context, the above quote evidences the legislature’s consideration of the possiblity that the plaintiff might file multiple offers which were both higher and lower than the verdict. The provision also demonstrates that in such cases an award was to be allowed based on “the largest ‘offer of judgment’ which was equal to or less than the verdict.”

We cannot ignore the plain meaning of a statute. “In construing a statute, this court seeks to ascertain the intent of the legislature as it is expressed through the words actually used. Schwab v. Zoning Board of Appeals, 154 Conn. 479, 482, 226 A.2d 506 [1967].” State v. Grant, 176 Conn. 17, 20, 404 A.2d 873 (1978). “It has often been said that the legislative intent is to be found not in what the legislature meant to say, but in the meaning of what it did say. Wiegand v. Heffernan, 170 Conn. 567, 581, 368 A.2d 103 (1976); Colli v. Real Estate Commission, 169 Conn. 445, 452, 364 A.2d 167 (1975); Sillman v. Sillman, 168 Conn. 144, 148, 358 A.2d 150 (1975).” Muha v. United Oil Co., 180 Conn. 720, 730, 433 A.2d 1009 (1980). There is no question, under General Statutes § 52-192a, that if an offer is not accepted within thirty days, it is considered rejected. Therefore, each of the offers made here was no longer open to acceptance since none of them was made within thirty days of the verdict. Thus, the defendants argue, there was no valid offer less than the verdict which was outstanding at the time of the verdict. This undisputed fact, however, must be considered in the light of the clear mandate of the statute that the highest offer which was less than the verdict must be used by the court in computing interest. Generally, “ ‘no part of a legislative enactment is to be treated as insignificant and unnecessary, and there is a presumption of purpose behind every sentence, clause or phrase . . . ” Doe v. Institute of Living, Inc., 175 Conn. 49, 58, 392 A.2d 491 (1978). Insofar as it is possible, the entire enactment is to be harmonized and each part is to be made operative. Sillman v. Sillman, supra.

If we were to agree with the interpretation of the defendants and the trial court, we would, in fact, hinder the purpose of this provision: the promotion of settlements in cases so as to unclog an overloaded docket. See Gionfriddo v. Avis Rent A Car System, Inc., 192 Conn. 301, 304, 472 A.2d 316 (1984); Verrastro v. Sivertsen, 188 Conn. 213, 223-24, 448 A.2d 1344 (1982). See also testimony of Richard Bieder, Esq., Hearings before Joint Standing Committee on the Judiciary, Pt. 3, 1977 Sess., p. 691 (hearings on Senate Bill 805, enacted as Public Acts 1977, No. 77-269).

Regardless of how many offers the plaintiff made which were in excess of the amount he actually recovered after trial, the defendants received four offers which were below the amount of the verdict. Had they accepted any of those offers, they would have shortened the course of this action by at least three years and would have paid less in damages as well. To deny the plaintiff an award of interest under such circumstances is clearly contrary to the intent behind General Statutes § 52-192a. We conclude, therefore, that the trial court erred in refusing to award interest to the plaintiff.

Our conclusion that the plaintiff is entitled to an award of interest in this case raises a second issue due to the possible effects of several amendments to General Statutes § 52-192a, regarding computation of the amount of the award.

Public Acts 1982, No. 82-228, effective October 1, 1982, amended the provisions of General Statutes § 52-192a (b) to provide that the interest calculation would be based on the amount of the verdict rather than the offer of judgment itself. The statute, as amended in 1982, provides in part: “[T]he court shall add to the verdict twelve per cent annual interest on the amount of the verdict, computed from the date such offer was filed in actions commenced before October 1, 1981.” (Emphasis added.) In the present case, the offer in question was filed before the October 1,1982 effective date of this amendment, but the verdict was rendered thereafter. Thus, the issue of whether the 1982 amendment should be applied retroactively arises.

We recognize that “ ‘[statutes should be construed retrospectively only when the mandate of the legislature is imperative. ’Michaud v. Fitzryk, 148 Conn. 447, 449, 171 A.2d 397 [1961]; McAdams v. Barbieri, 143 Conn. 405, 414, 123 A.2d 182 [1956]; Lane’s Appeal, 57 Conn. 182, 17 A. 926 [1889].” (Emphasis added.) Waterbury National Bank v. Waterbury National Bank, 162 Conn. 129, 134, 291 A.2d 737 (1972). Here, we conclude that the legislature intended to provide just such a mandate for, as we stated earlier, we are bound to “ascertain the intent of the legislature as it is expressed through the words actually used.” State v. Grant, supra.

As it read after the 1982 amendment, General Statutes § 52-192a (b) clearly stated that the computation of interest shall (1) be based on the amount of the verdict, and (2) be computed from the date the offer was filed in cases commenced prior to October 1,1981. Since the present case was commenced prior to October 1, 1981, we hold that the calculation of interest due to the plaintiff must be based on the $96,486.67 verdict, computed from May 7, 1980, to the date upon which the judgment was rendered. Unlike Gionfriddo v. Avis Rent A Car System, Inc., supra, the judgment in this case was not rendered until after the 1982 amendment became effective on October 1,1982. Thus, the ground for denying the 1982 amendment retroactive effect upon which the court relied in Gionfriddo is not applicable here.

There is error only in the failure of the trial court to award interest, the judgment is set aside and the case is remanded with direction to render judgment as on file except for the addition of interest in accordance with this opinion.

In this opinion the other judges concurred.

       Although Waldemar Respondowski was the operator of the vehicle involved in the accident, it was owned by his wife, Margaret Respondowski, who is also a defendant herein.

       Between the filing of the first of the plaintiff’s offers and the last of those offers, one change was made to the language of this provision by Public Acts 1981, No. 81-315. That change, not relevant at this point, will be discussed further herein.

       Although not relevant here, the 1982 amendment was, itself, changed in 1983 by Public Acts 1983, No. 83-295, § 9, to substitute “amount so recovered” for “verdict” to make clear that the provision applied to court awards as well as to jury awards.

       The court in Gionfriddo stated that “[tjhe 1982 amendment . . . stated that it was to apply to actions, like the present one, commenced before 1981. Nonetheless, the 1982 amendment did not become effective until October 1, 1982, well after June 28,1982, the date of the judgment in this case.” Gionfriddo v. Avis Rent A Car System, Inc., 192 Conn. 301, 309, 472 A.2d 316 (1984).


author: Daly, J.

text:
    Joseph Davis v. Myron Yudkin et al.
    (2944)
    Borden, Spallone and Daly, Js.
    Argued February 7—decision released April 23—upon reconsideration,
    affirmed July 9, 1985

      Wick Chambers, for the appellant (plaintiff).

      Lewis R. Whitehead, for the appellees (defendants).
   Daly, J.

The plaintiff is seeking a declaratory judgment and an injunction against the defendants, the Woodbridge plan and zoning commission and its members, claiming a predetermination by them concerning applications to subdivide his house lot and raising the constitutionality of a zoning regulation. The defendants pleaded, by way of special defense, that the plaintiff failed to take a timely appeal from the defendants’ action under §§ 8-8 and 8-9 of the General Statutes. From a judgment rendered in favor of the defendants, the plaintiff has appealed.

The parties fííed a stipulation of facts which provided, inter alia, the following: The plaintiff included his house lot along with other lots in order to obtain subdivision approval from the defendants, which approval was granted. When the plaintiff subsequently attempted on two occasions to receive permission to resubdivide said house lot, the defendants denied the applications. No appeal was taken from any action of the defendants. Instead, the plaintiff subsequently filed the present action for declaratory and injunctive relief.

The plaintiff sought an injunction to require the defendants to approve the subdivision application on the ground that the board had predetermined its decision on that application. We note that if the plaintiff has an adequate remedy at law, he is not entitled to an injunction. Stocker v. Waterbury, 154 Conn. 446, 226 A.2d 514 (1967). General Statutes § 8-9 provides: “Appeals from zoning commissions and planning and zoning commissions may be taken to the superior court and, upon certification for review, to the appellate court in the manner provided in section 8-8.”

The plaintiff’s right to Superior Court review of the commission’s denial is an adequate legal remedy barring injunctive relief.

Additionally, our Supreme Court has frequently stated that when a party has a statutory right of appeal from the decision of an administrative agency, he may not, instead of appealing, bring an independent action to test the very issue which the appeal was designed to test. Carpenter v. Planning & Zoning Commission, 176 Conn. 581, 598, 409 A.2d 1029 (1979).

The plaintiff followed the proper procedure, however, for challenging the constitutionality of the zoning regulation. Had the plaintiff availed himself of the statutory right of appeal from the adverse decisions of the town plan and zoning commission, he could not have challenged the constitutionality of the zoning regulation in that proceeding. The rule extant in zoning cases is that “a party cannot seek the relief provided in an ordinance or statute and later in the same proceeding raise the question of its constitutionality.” Helbig v. Zoning Commission, 185 Conn. 294, 298, 440 A.2d 940 (1981).

The regulation challenged by the plaintiff is § 3.43 of the Woodbridge zoning regulations, which provides in pertinent part: “The provisions of this section are intended to permit the use of land which has been unintentionally landlocked or deprived of minimum lot frontage. . . . The plaintiff claims that this phrase is unconstitutional in that it is vague and uncertain and fails to give reasonable notice of the standard by which the defendants are bound.

The trial court, in a well reasoned analysis, upheld the constitutionality of the zoning regulation. We agree that the regulation is not unconstitutionally vague. Every statute is presumed to be constitutional and invalidity is required to be established beyond a reasonable doubt. Heslin v. Connecticut Law Clinic of Trantolo & Trantolo, 190 Conn. 510, 522, 461 A.2d 938 (1983). The plaintiff has not met this heavy burden.

There is no error.

In this opinion the other judges concurred.

       The plaintiff also made two other claims, but those counts of the complaint were withdrawn.

       Section 3.43 of the Woodbridge Zoning Regulations provides: “Rear Lot. The provisions of this section are intended to permit the use of land which has been unintentionally landlocked or deprived of minimum lot frontage on an accepted street, or in the case of a subdivision on an approved street, where topography or the unusual shape of the property lends itself to the use of a rear lot to accomplish the best use of the land. The Commission may authorize the issuance of a zoning permit with or without conditions for the erection of a single family dwelling and accessory facilities on a rear lot upon application if it finds that the public health and welfare will not be substantially adversely affected and if it finds that such a lot provides for the best development of the land taking into consideration difficult drainage, difficult configuration, inaccessibility, temporary flooding, steep topography, utility lines, traffic safety and right-of-access.”


author: Per Curiam:.

text:
    John J. Branigan v. Sol J. Cohen et al.
    (2720)
    (3006)
    Borden, Spallone and Daly, Js.
    Argued March 6
    decision released April 23, 1985

      Charles W. Bauer, for the appellants-appellees (defendants).

      J. Michael Sconyers, with whom was John A. Cvarch, for the appellee-appellant (plaintiff).
   Per Curiam:.

This action stems from the alleged breach of an oral agreement regarding the business relationship between the plaintiff and the defendants. Under the agreement, the plaintiff was to receive, in addition to a salary, one third of the net profits of the construction business in which the parties were engaged. The defendant S. J.C. Corporation, of which the defendant Sol J. Cohen was the sole shareholder, was to hold the plaintiffs share of the profits. Those funds were placed in the general account of the S. J.C. Corporation and no interest was paid on them.

The dispute which led to this appeal arose upon the termination of the plaintiff’s business relations with the defendants and specifically concerns the monies which the plaintiff claimed were due him under the oral agreement. After a full hearing before a state trial referee, judgment was rendered for the plaintiff in the amount of $53,565.39 plus statutory interest. On November 17, 1983, the defendants appealed from that judgment. On the following day, the plaintiff moved to open the judgment on the basis that the trial referee had improperly allowed the defendants certain deductions from the monies to which he claimed he was entitled. The parties subsequently stipulated that the judgment should be modified in favor of the plaintiff without prejudice to the right of either party to appeal from the judgment as modified. On January 20, 1984, the trial referee ordered that the judgment be modified in accordance with the stipulation. The plaintiff, on February 3, 1984, appealed from the modified judgment.

In both appeals, the claims of error raised by the parties attack the factual findings of the trial court. We are adamant in requiring that the parties be guided by the well established principle that we rarely disturb such findings, and we do not retry cases on appeal. When the parties challenge the factual basis of the court’s decision, our function is restricted to determining whether the facts set forth in the memorandum of decision are supported by the evidence or whether the facts as found are clearly erroneous in light of the evidence and the record as a whole. Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980); Sorenson Transportation Co. v. State, 3 Conn. App. 329, 333, 488 A.2d 458 (1985). In this case, our examination of the evidence and the record as a whole discloses that the factual findings of the trial court are amply supported by the evidence.

There is no error on either appeal.

       In filing this appeal, the plaintiff erroneously called it a cross appeal. A cross appeal must be filed within ten days of the filing of the original appeal. Practice Book § 8003. The plaintiff did not cross appeal within that period. He was thus assessed the usual entry and record fees, and his appeal was assigned a court docket number.


author: Dupont, C.P.J.

text:
    County Federal Savings and Loan Association v. Eastern Associates et al. Westport Bank and Trust Company v. Eastern Associates et al.
    (3138)
    (3142)
    Dupont, C.P.J., Hull and Spallone, Js.
    Argued December 13, 1984
    decision released April 23, 1985

      Donald F. Reid and Thomas J. Ryan, filed a brief for the appellant (defendant Marjorie Costa).

      Philip Baroff, with whom was Matthew B. Woods, for the appellee (plaintiff in the first case).

      Richard J. Diviney, with whom, on the brief, were Frederick S. Ury and Daniel Glass, legal intern, for the appellee (plaintiff in the second case).
   Dupont, C.P.J.

The defendant Marjorie Costa appeals from two judgments of strict foreclosure rendered immediately after the trial court struck her special defenses filed in both cases. The sole issue, as raised and briefed by the parties in this combined appeal, is whether the defendant Costa alleged sufficient facts to support her special defenses of adverse possession.

The plaintiffs, County Federal Savings and Loan Association (County) and Westport Bank and Trust Company (Westport), brought separate mortgage foreclosure actions against Eastern Associates, Inc., and Donald Coppola, upon their default in the payment of three promissory notes. Costa was named as a defendant in the actions because she was in possession of the property and because she had obtained a prejudgment remedy of attachment of the realty in a separate action brought by her against Coppola.

The allegations in the special defenses of adverse possession differ in the two cases. That interposed in County’s action states that Costa “acquired title . . . by adverse possession in that she has occupied said premises openly, notoriously, and continuously since November 1961 and adversely to the rights of any other party to this action.” The allegations in Westport’s action are simply that she obtained title by adverse possession and that her possession predates Westport’s liens and encumbrances.

The underlying substantive question raised by the motions to strike cannot be decided without first addressing several procedural issues. The two actions came before the trial court in different procedural contexts. In County’s foreclosure action, the plaintiff, by the time of trial, had denied the allegations of the special defenses, whereas in Westport’s foreclosure action, the pleadings had not been closed at the time of trial since no reply had been made to the special defenses.

After denying the allegations of Costa’s special defense, the plaintiff County, claimed the matter to the trial list. A trial commenced and, after County had put on its case and rested, it made an oral motion to strike the special defenses, in which Westport joined.

A motion to strike special defenses made after an answer to the special defenses has been filed and made in mid-trial, after the plaintiff has rested, is improper. A motion to strike is a pretrial motion. Practice Book § 151. County’s reply to the special defenses precluded it from moving to strike those defenses unless the court otherwise ordered. Practice Book §§ 112, 113. It was error to strike the special defense of adverse possession during the course of the trial when that defense had previously been generally denied by the plaintiff, County.

Unlike County, Westport would not usually be deemed to have waived its right to challenge the legal sufficiency of the special defense since it had not replied to the defense. Under the circumstances of this case, however, the granting of the motion was improper. Costa had appeared for trial and was prepared to present her defense. She had a justifiable expectation that she would be allowed to proceed with her case. The rules pertaining to a motion to strike contained in Practice Book §§151 through 158 provide that an adverse party who objects to the motion shall have five days before the date the motion is to be considered on the short calendar to file and serve a memorandum of law. Further, if the motion is granted, the adverse party has fifteen days within which to file a new pleading.

Here, the motions to strike were oral and only subsequent to the judgments rendered were they filed in writing. The defendant had no opportunity to replead in the Westport case since judgment was rendered immediately following the granting of the motion to strike. The rules of practice relating to motions to strike evince a policy of allowing a litigant time to consider whether a new pleading should be filed. A party should not be rushed to trial without that opportunity.

This is particularly so where, as here, the special defense of adverse possession in the Westport case contained only the flat assertion of title by adverse possession. Although the special defense here could not withstand a motion to strike, allegations sufficient to state a legally cognizable defense of adverse possession were possible had the defendant been given her right to replead.

In determining whether a motion to strike should be granted, the sole question is whether, if the facts alleged are taken to be true, the allegations provide a cause of action or a defense. King v. Board of Education, 195 Conn. 90, 93, 486 A.2d 1111 (1985); Greene v. Metals Selling Corporation, 3 Conn. App. 40, 42, 484 A.2d 478 (1984). The legal conclusions or opinions stated in the special defense are not deemed admitted, but rather must flow from the subordinate facts provided. McAdam v. Sheldon, 153 Conn. 278, 283, 216 A.2d 193 (1965). “The essential elements of adverse possession are that the owner shall be ousted from possession and kept out uninterruptedly for fifteen years under a claim of right by an open, visible and exclusive possession of the claimant without license or consent of the owner.” Roche v. Fairfield, 186 Conn. 490, 498, 442 A.2d 911 (1982). The challenged special defense in Westport’s case provided no allegations as to those essential elements and, therefore, the special defense was technically defective.

The rules of practice are designed so that technical and formal objections are raised at an early stage of the proceeding so that the pleader, if necessary, has an opportunity to amend or proceed anew. McCoy v. Raucci, 156 Conn. 115, 118, 239 A.2d 689 (1968). The defendant was not provided with an opportunity to make a reasoned choice as to whether she should replead and cure her defective pleading or stand on the pleading. The granting of a motion to strike and a judgment properly rendered because the party refused to plead over is a two step process with a built in time lag between the steps. Practice Book § 157; King v. Board of Education, supra, 92 n.2.

It was error in the Westport case for the trial court to grant the plaintiff’s motion to strike, made during the trial, without allowing the defendant the time to resurrect, if she could, a special defense which might have been viable. It was error in the County case for the trial court to consider a motion to strike after the plaintiff had rested its case and after the plaintiff had, during the pretrial stage of the case, denied the allegations of the special defense in question.

There is error, the judgments for the plaintiffs in the two cases are set aside and the cases are remanded with direction to proceed in accordance with this opinion.

In this opinion the other judges concurred.

       Other special defenses were raised in Costa’s answer and were also stricken by the trial court. Costa is deemed to have abandoned any issues arising from the striking of those defenses since she has not briefed them. Sachem’s Head Assn. v. Lufkin, 168 Conn. 365, 366, 362 A.2d 519 (1975).

       Eastern Associates, Inc., and Donald Coppola are not parties to this appeal.

       The foreclosure actions were apparently consolidated for trial, and testimony was taken and findings made in both cases immediately prior to the making of the motions to strike.

       This court is not suggesting that it is proper for the trial court to proceed to a trial on the merits where the pleadings are not closed. “The fact that the pleadings were not closed restricts the authority of the trial court to render permanent judgments on pending claims.” Doublewal Corporation v. Toffolon, 195 Conn. 384, 391, 488 A.2d 444 (1985).


text:
    Samuel J. Paletsky v. Mildred Paletsky et al.
    (2109)
    Dupont, C.P.J., Hull and Spallone, Js.
    Argued January 16
    decision released April 23, 1985

      William A. Conti, for the appellants (defendants).

      Charles F. Brower, for the appellee (plaintiff).
   Dupont, C.P.J.

The sole issue presented by this appeal, as framed by the defendants, is whether title by adverse possession can be acquired where the claimant entered into possession under the mistaken belief that he owned the property. This was an action to quiet and settle title to a piece of land adjoining the plaintiffs home. The plaintiff alleged and the trial court found title by adverse possession.

The predecessor in title of both the plaintiff, Samuel Paletsky, and the defendant Bernard Paletsky was their father, Isidore Paletsky. Prior to 1949, the plaintiff’s father had conveyed two pieces of land to him. In 1949, at his father’s request, the plaintiff conveyed a portion of that land to the defendant Bernard Paletsky. In return for transferring that land to the defendant Bernard Paletsky, the plaintiff claims that he was to receive a deed to the land in dispute. Simultaneously with the plaintiff's conveyance to the defendant Bernard Paletsky, their father also conveyed a piece of property to him. A description of that properly provided that it was bounded by land “transferred this day” to the plaintiff. No deed, however, transferring this land to the plaintiff was ever recorded.

The defendants do not dispute the trial court’s finding that the plaintiff had visible, open, and exclusive possession of the property uninterruptedly for fifteen years. Instead, they apparently challenge the trial court's finding that the exclusive possession was under a claim of right without the consent of the owner, the other element necessary to establish adverse possession. Clark v. Drska, 1 Conn. App. 481, 485, 473 A.2d 325 (1984).

This issue, in a different factual context, has been considered by our Supreme Court. Loewenberg v. Wallace, 151 Conn. 355, 197 A.2d 634 (1964); Ahern v. Travelers Ins. Co., 108 Conn. 1, 5, 142 A. 400 (1928); Searles v. DeLadson, 81 Conn. 133, 70 A. 589 (1908). A mistaken belief by the adverse possessor that he owned the property when he entered into possession has been held to be immaterial in an action for title by adverse possession, as long as the other elements of adverse possession have been established. Id., 135-36.

The cases herein cited involved the ordinary boundary dispute where one of the parties mistakenly believed that a deed conveyed the disputed area to him. The defendants argue that this line of authority is inapposite because here the plaintiffs claim is not grounded on a recorded deed but rather on a belief that such a deed existed. There is no significant distinction between the two factual predicates. A mistaken belief of ownership does not make title by adverse possession impossible; the intent to possess land exclusively cannot be confused with the reason for the belief which induced that intent. Loewenberg v. Wallace, supra, 358.

The defendants correctly point out that where a cotenant attempts to dispossess the other cotenants, an actual intent to exclude the others is required. Newell v. Woodruff, 30 Conn. 492 (1862); Diamond v. Boynton, 38 Conn. Sup. 616, 458 A.2d 18 (1983). Cotenants hold undivided interests in the property and possession by one is presumed not to be adverse to any other cotenant. Ruick v. Twarkins, 171 Conn. 149, 157, 367 A.2d 1380 (1976). To overcome that presumption, a cotenant must show actions whereby the intent to disseize is clear and unmistakable. Id.

The present case, however, does not involve cotenants, but two adjoining landowners, one of whom entered into possession of land believing that he had the right to exclusive possession. The authority cited by the defendants is therefore inapposite. The plaintiff’s exclusivity of possession is rendered no less exclusive because he mistakenly believed that such right was his.

There is no error.

In this opinion the other judges concurred.

       This appeal was originally filed in the Appellate Session of the Superior Court. General Statutes § 51-197a (c).

       The defendants are Bernard Paletsky and his wife, Mildred Paletsky, to whom he later conveyed the disputed land.


text:
    Town of Stratford v. Council 15, Local 407, AFSCME, et al.
    (2392)
    Dupont, C.P.J., Hull and Borden, Js.
    Argued February 5
    decision released April 23, 1985

      Geraldine Ficarra, with whom, on the brief, was Richard P. Gilardi, town attorney, for the appellant (plaintiff).

      Michael J. Lombardo, assistant attorney general, with whom, on the brief, was Joseph I. Lieberman, attorney general, for the appellee (defendant state board of mediation and arbitration).

      Frank J. Raccio, for the appellees (named defendant et al.).
   Hull, J.

The plaintiff, the town of Stratford, appeals from the judgment of the trial court denying its motion to vacate an award of the state board of mediation and arbitration. Stratford claims two issues: (1) That the failure of three members of the board to take an oath immediately prior to hearing the dispute in question, as required by General Statutes 52-414 (d), voids their subsequent award; and (2) that the arbitrators’ refusal to admit both the transcript of prior testimony and the sworn police statement of a deceased witness constitutes misconduct warranting the vacation of their decision. We find no error.

On December 31,1975, Detective Joseph Berke was discharged from his employment with the Stratford police department because of allegations that he had placed electronic surveillance devices in the rooms where oral promotion exams were being held. Berke, through his union, the American Federation of State, County and Municipal Employees (AFSCME), filed a grievance with the board. The board concluded that Stratford “did not have just cause for the discharge of Detective Joseph Berke.” Stratford filed a motion to vacate the award pursuant to Practice Book § 525 on the grounds described above. The trial court denied that motion and the town filed the present appeal raising the same claims it had argued before the trial court.

With regard to Stratford’s claim that the arbitrators’ failure to take the oath required by General Statutes § 52-414 (d) voids their award, we conclude that the trial court was correct in holding that the members of the board are not required to comply with that requirement. It has long been ackowledged that the provisions of what is now chapter 560 (General Statutes §§ 31-91 through 31-100), concerning the board of mediation and arbitration, provide “a complete procedure up to the making of a decision by the board.” Danbury Rubber Co. v. Local 402, 145 Conn. 53, 57, 138 A.2d 783 (1958). Chapter 909 (General Statutes §§ 52-408 through 52-424) concerning arbitration proceedings, on the other hand, “deals . . . with the subject of arbitration generally.” Danbury Rubber Co. v. Local U02, supra.

Under the provisions of General Statutes § 52-411, the parties to an arbitration agreement may provide their own method for selecting an arbitrator. Thus, any person from any walk of life may become an arbitrator on one or more occasions. Since these arbitrators are chosen on an ad hoc basis without having taken the oath which is taken by members of the board pursuant to the Connecticut constitution, article eleventh, § 1, each of them can only be administered an oath when they are chosen and actually assigned to undertake an arbitration. If we were to accept Stratford’s argument in this case, the members of the board would be required to take an oath upon entering office and each time they heard a grievance. Such a requirement would be analogous to requiring judges and referees to take an oath prior to hearing every case.

“There is a presumption that the legislature, in enacting a law, did so in view of existing relevant statutes and intended it to be read with them so as to make one consistent body of law.” Little v. Ives, 158 Conn. 452, 455, 262 A.2d 174 (1969). “We start with the familiar assumption that the legislature . . . intended to create a harmonious and consistent body of law. Vartuli v. Satire, 192 Conn. 353, 362, 472 A.2d 336 (1984); City Council v. Hall, 180 Conn. 243, 251, 429 A.2d 481 (1980); Engle v. Personnel Appeal Board, 175 Conn. 127, 130, 394 A.2d 731 (1978). We must, if possible, read the two statutes together and construe each to leave room for the meaningful operation of the other.” State v. West, 192 Conn. 488, 494, 472 A.2d 775 (1984). We cannot conclude that the legislature intended that the oath provision of General Statutes § 52-414 (d) should apply to board members for to do so would render their constitutionally mandated initial oath redundant.

In fact, two of the board members who heard this grievance, Thomas J. Staley and David A. Ryan, had not been sworn as members of the board when they were reappointed for the terms during which they heard this case. Nevertheless, Furtney v. Zoning Commission, 159 Conn. 585, 271 A.2d 319 (1970), sets out four situations in which a person may be a de facto officer. One of those situations is where the officer holds office “under color of a known and valid appointment or election, but where the officer had failed to conform to some precedent requirement or condition, as to take an oath, give a bond, or the like.” Id., 596. Thus, Staley and Ryan are de facto officers and, as such, their “authority may not be collaterally attacked or inquired into by third persons affected.” Id., 597.

The second claim raised by Stratford is that the arbitrators committed misconduct within the meaning of General Statutes § 52-418 (a) (3) by their failure to admit two documents into evidence. The documents were (1) the transcript of trial testimony by Frank Chin relating to alleged purchases by Berke of surveillance equipment, and (2) a sworn statement by Chin made to the Stratford police. These documents were sought to be introduced, rather than having Chin testify directly, because he had died prior to the commencement of the arbitration hearings.

Both the transcript and the statement arose out of a criminal action against Berke relating to the same events involved herein. That criminal action was dismissed by the trial court after it was remanded for a new trial by the appellate session; State v. Berke, Appellate Session of the Superior Court, Docket No. 396 (March 9, 1979); due to improper restrictions on the cross-examination of Chin during Berke’s first trial. The court, in the second trial, ruled that the transcript of Chin’s testimony was inadmissible as did the arbitrators herein.

Since the criminal action against Berke was dismissed, our criminal erasure statute; General Statutes § 54-142a; bars the use of either the police or the court records pertaining to that action. Only three narrow exceptions to that bar exist under General Statutes § 54-142a (f), and none of them is applicable to this case. Consequently, we conclude that the board’s refusal to admit the evidence in question, though it was pertinent and material, did not amount to misconduct under General Statutes § 52-418 (a) (3).

There is no error.

In this opinion the other judges concurred.

       This appeal, originally filed in the Supreme Court, was transferred to this court. General Statutes § 51-199 (c).

       General Statutes § 52-414 (d) provides: “Before hearing any testimony or examining other evidence in the matter, the arbitrators and umpire shall be sworn to hear and examine the matter in controversy faithfully and fairly and to make a just award according to the best of their understanding, unless the oath is waived in writing by the parties to the arbitration agreement.”

       Such misconduct would be grounds for vacating the arbitrators’ award pursuant to General Statutes § 52-418 (a) (3). See footnote 5, infra.

       General Statutes § 52-418 (a) (3) allows the trial court to vacate the arbitrators’award “if the arbitrators have been guilty of misconduct . . . in refusing to hear evidence pertinent and material to the controversy or of any other action by which the rights of any party have been prejudiced . . .

       General Statutes § 54-142a (a) provides, in pertinent part: “Whenever in any criminal case, on or after October 1, 1969, the accused, by a final judgment, is found not guilty of the charge or the charge is dismissed, all police and court records and records of any state’s attorney pertaining to such charge shall be erased upon the expiration of the time to file a writ of error or take an appeal, if an appeal is not taken, or upon final determination of the appeal sustaining a finding of not guilty or a dismissal, if an appeal is taken.”

       General Statutes § 54-142a (P provides: “Upon motion properly brought, the court or a judge thereof, if such court is not in session, (1) may order disclosure of such records upon application of the accused, (2) may order disclosure to a defendant or the accused in an action for false arrest arising out of the proceedings so erased or (3) may order disclosure to the prosecuting attorney and defense counsel in connection with any peijury charges which the prosecutor alleges may have arisen from the testimony elicited during the trial. Such disclosure of such records is subject also to any records destruction program pursuant to which the records may have been destroyed. The jury charge in connection with erased offenses may be ordered by the judge for use by the judiciary, provided the names of the accused and the witnesses are omitted therefrom.”


author: Cioffi, J.

text:
    Wyngate, Inc. v. Bozak, Inc.
    (3186)
    Dupont, C.P.J., Callahan and Cioffi, Js.
    Argued February 21
    decision released April 23, 1985

      John C. Yarns, Jr., with whom was Michael A. Zizka, for the appellant (plaintiff).

      Edward Morelli, with whom, on the brief, was Dwight O. Schweitzer, for the appellee (defendant).
   Cioffi, J.

The plaintiff landlord brought a summary-process action seeking possession of the leased premises from the defendant commercial tenant for failure to pay insurance, taxes and rent in accordance with the terms of their lease. The trial court rendered judgment for the defendant and the plaintiff has appealed, claiming the trial court erred (1) in ruling that the defendant had properly tendered all of the payments due under the lease, (2) in holding that a tender of rent after the service of a notice to quit precluded termination of the lease, (3) in finding that the defendant had timely made all fixed rental payments and (4) in excluding testimony as to claimed admissions by the plaintiff of financial problems. One issue is dispositive of the case: whether the defendant had properly tendered the fixed monthly rental payments to the plaintiff.

The lease was for a five year term commencing on September 1, 1982, and ending on August 31, 1987. The lease provided that the defendant would pay a certain monthly fixed rent, real property taxes, insurance premiums, and interest on any fixed rent or other charge under the lease that was not paid on the date due. The fixed rent was to be paid on the first day of each month, but the lease provided a five day grace period. Other charges were to be paid upon the defendant’s receipt of notice of such charges. The lease also provided that “(t)he landlord’s failure to exercise any rights hereunder upon any default shall not be deemed a waiver or relinquishment of its right to do so with respect to such default or upon any subsequent default.”

In this case, the defendant tenant was in default on August 7,1983, and the second notice to quit to which the plaintiff’s complaint refers was served on August 16, 1983. The record supports a finding that throughout the term of the lease up until August of 1983, it had become the custom and practice of the plaintiff to accept a late payment of rent from the defendant. Prior to August of 1983, the defendant had sent the fixed rent on the tenth of each month and the plaintiff had accepted each such late payment. On August 10,1983, the day of the month on which it was customary for the defendant to send the rental payment, and prior to the tender of that month’s payment, the defendant received a notice to quit stating that “any payments tendered after service of the notice to quit will be accepted for reimbursement of costs and attorney’s fees and for use and occupancy only with full reservation of rights to continue with eviction actions.”

Given the lease of the parties, the forbearance of the landlord in the past to insist on a prompt payment of rent did not equate to the relinquishment of its right in the future to require such timely tender. S.H.V.C., Inc. v. Roy, 188 Conn. 503, 508, 450 A.2d 351 (1982). The trial court therefore erred in determining that the defendant had properly tendered the rental payments to the plaintiff.

There is error, the judgment is set aside and the case is remanded with direction to render judgment granting immediate possession to the plaintiff.

In this opinion the other judges concurred.