text:
    STATE OF CONNECTICUT v. DANA MOZELL
    (13488)
    Landau, Heiman and Daly, Js.

      Argued September 26, 1995
    decision released January 2, 1996

      Charles D. Ray, with whom, on the brief was, William H. Narwold, for the appellant (defendant).

      John A. East III, deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and John Waddock, assistant state’s attorney, for the appellee (state).
   LANDAU, J.

The defendant, Dana Mozell, appeals from the judgment of conviction, rendered after a jury trial, of conspiracy to commit murder in violation of General Statutes §§ 53a-54a (a) and 53a-48 (a) and manslaughter in the second degree as an accessory in violation of General Statutes §§ 53a-56 (a) (l) and 53a-8 (a). On appeal, the defendant claims that the trial court improperly (1) exercised its discretion and allowed into evidence prior acts of misconduct by third persons to establish motive, (2) denied his request for a continuance to permit an additional witness to testify, and (3) instructed the jury as to the requisite mental element of accessorial liability. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. The defendant was a member of a gang that sold illegal narcotics in New Haven. For several weeks preceding the death of the victim, Richard Coleman, the defendant’s gang was involved in a dispute with Shelton Tucker, Sean Green and Rodney Lewis over control of the drug trade on Arthur Street. On December 29,1989, at approximately 6:30 p.m., several members of the defendant’s gang, including the defendant, his brother Troy Mozell, Eric Morton, Ronald Douglas and Matthew Bowden arrived at Arthur Street in a gray Jeep Cherokee. Meanwhile, Tucker and Lewis were walking across Arthur Street toward Tucker’s residence at 2 Arthur Street. The victim, a bystander, was walking past Tucker’s residence.

As Tucker and Lewis crossed Arthur Street, the defendant, together with Morton and Bowden, exited the Jeep carrying handguns. Tucker and Lewis noticed the vehicle and the gunmen and began to run toward Tucker’s residence. The trio chased Tucker and Lewis and simultaneously fired their weapons at them several times. To avoid the gunshots, Tucker and Lewis hid behind a vehicle that was parked in front of Tucker’s house. When the shooting ceased, Tucker and Lewis saw that the victim was lying on the sidewalk in front of 6 Arthur Street. The victim was struck in the chest by a single nine millimeter bullet and died later that evening.

Tucker and Lewis informed Detective Samuel Cotto of the New Haven police department that Troy Mozell and other members of the defendant’s gang were responsible for the shooting. Lewis specifically named Robert Henderson and Douglas, and described a third participant as “a kid in a green jacket.” The New Haven police obtained search warrants for Henderson’s apartment at 288 Front Street, the defendant’s apartment at 16 Peck Street and the gray Jeep Cherokee that was owned by the defendant’s mother, Alice Mozell. The police recovered two loaded nine millimeter ammunition clips from Henderson’s apartment, six live nine millimeter cartridges from the defendant’s apartment, and a green jacket from inside the Jeep.

The police initially arrested only Troy Mozell and Douglas. At a probable cause hearing on February 27, 1990, Tucker was called to testify. While testifying, Tucker saw the defendant sitting in the courtroom gallery among several other spectators and recognized him as one of the shooters. Tucker’s identification of the defendant led police to investigate further and resulted in the defendant’s arrest.

I

The defendant first claims that the trial court improperly admitted testimony that (1) he was a member of a gang, (2) the gang was involved in a dispute with a rival gang that included Tucker and Lewis, and (3) the dispute was marked by recent violent confrontations. He argues that the challenged evidence was inadmissible because it constituted evidence of prior misconduct by third persons. The evidence, he asserts, was more prejudicial than probative because it improperly attempted to establish his guilt by proof of his association with a gang.

The following facts were established from the challenged evidence. Several days prior to the fatal shooting, Tucker and Lewis confronted Thomas Sanders, another member of the defendant’s gang, in front of Tucker’s residence on Arthur Street. Tucker and Lewis shoved Sanders and instructed him not to deal drugs in front of Tucker’s residence. Later that night, Henderson, Douglas, and Bowden returned to Arthur Street and threatened Tucker and Lewis with a gun. They said that unless Tucker and Lewis left Sanders alone there would be trouble. Earlier on the day of the fatal shooting, Troy Mozell drove past Tucker’s house in the gray Jeep and fired several gunshots from the vehicle at Tucker and Lewis as they stood on the front porch.

“[T]here are two components to relevant evidence: materiality and probative value. . . . [EJvidence is relevant if it has a tendency to establish the existence of a material fact. . . .” (Citations omitted; internal quotation marks omitted.) State v. Wieler, 35 Conn. App. 566, 576-77, 645 A.2d 1032 (1994), aff'd, 233 Conn. 552, 660 A.2d 740 (1995). “Evidence of motive is a highly relevant factor for assessing the guilt or innocence of a defendant.” State v. Murdick, 23 Conn. App. 692, 696, 583 A.2d 1318, cert. denied, 217 Conn. 809, 585 A.2d 1233 (1991). Relevant evidence, although prejudicial in nature, “is admissible if the trial court, in the exercise of its sound discretion, determines that its probative value, for one or more of the purposes for which it is admissible, outweighs its prejudicial impact on the accused.” State v. Ramsundar, 204 Conn. 4, 15, 526 A.2d 1311, cert. denied, 484 U.S. 955, 108 S. Ct. 348, 98 L. Ed. 2d 374 (1987). “We will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion.” State v. Kulmac, 230 Conn. 43, 61, 644 A.2d 887 (1994).

The challenged evidence was relevant to prove the defendant’s motive. The evidence tended to establish that the defendant had conspired with members of his gang to kill a rival drug dealer to protect the gang’s drug sales territory. It established that the defendant participated in the shooting that resulted in Coleman’s death. The trial court properly conducted the requisite balancing test before it ruled that the challenged evidence was admissible. The court conducted several hearings outside the presence of the jury, heard lengthy offers of proof from counsel, and carefully weighed the probative value of the evidence against its adverse impact before rejecting the defendant’s claim that the evidence was impermissibly prejudicial. Making every reasonable presumption in favor of the trial court’s ruling, we cannot conclude, under the circumstances of this case, that the trial court abused its discretion by admitting the challenged evidence.

II

The defendant next claims that the trial court deprived him of his state and federal constitutional rights of compulsory process and due process of law when it denied his motion for a continuance, made at the conclusion of the evidence, to permit him to bring an additional witness to testify. The defendant asserts that the witness would have directly refuted the testimony of a state’s witness who testified that he had heard the defendant admit his involvement in the shooting.

The following additional facts are relevant to the resolution of this claim. Immediately after the shooting, the defendant and the other gunmen returned to the Jeep, fled from the Arthur Street area, and drove to Henderson’s apartment at 388 Front Street. Douglas testified for the state that several people, including Daryl Jackson, were present and playing cards when the defendant and Bowden arrived after the shooting and announced that they had just engaged in a shootout with Tucker and Lewis. Troy Mozell, who was also present, informed the group that someone had been killed. Upon hearing this, the defendant and Bowden began arguing with each other over which one of them had fired the fatal shot, each trying to blame the other.

On October 8, 1992, the defendant notified the trial court that he had two witnesses ready to testify and that he intended to call Jackson as a third witness. Because Jackson was recovering from a gunshot wound, the defendant requested a continuance for at least one week. The court reserved its decision on the continuance until after the defendant’s available witnesses testified. On October 9,1992, after the testimony of the available witnesses, the defendant renewed his request for a continuance and represented that Jackson had been served with a subpoena to compel his attendance on the next scheduled court date, Tuesday, October 13,1992. As part of his offer of proof, the defendant submitted a statement signed by Jackson in which Jackson claimed that he was not present at Henderson’s apartment on the night of the shooting. Jackson further claimed that neither the defendant nor Bowden had admitted their complicity in the shooting to Jackson at any other time. The state objected to the continuance claiming that the proffered testimony was neither relevant nor probative. The trial court denied the motion for continuance.

“The determination of whether to grant a request for a continuance is within the discretion of the trial court, and will not be disturbed on appeal absent an abuse of discretion. State v. Aillon, 202 Conn. 385, 394, 521 A.2d 555 (1987). A reviewing court is bound by the principle that [ejvery reasonable presumption in favor of the proper exercise of the trial court’s discretion will be made. Ridgeway v. Ridgeway, 180 Conn. 533, 538, 429 A.2d 801 (1980); State v. Beckenbach, [198 Conn. 43, 47, 501 A.2d 752 (1985)]. To prove an abuse of discretion, an appellant must show that the trial court’s denial of a request for a continuance was arbitrary. State v. Beckenbach, supra [47], There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied.” (Emphasis in original; internal quotation marks omitted.) State v. Hamilton, 228 Conn. 234, 239-40, 636 A.2d 760 (1994).

For us to determine whether the trial court’s denial of the request for a continuance was arbitrary, we must first determine whether the court properly ruled on the relevancy of Jackson’s testimony. “[T]here are two components to relevant evidence: materiality and probative value. . . . [E]vidence is relevant if it has a tendency to establish the existence of a material fact. . . . One fact is relevant to another fact whenever, according to the common course of events, the existence of the one, taken alone or in connection with other facts, renders the existence of the other either certain or more probable. ... No precise and universal test of relevancy is furnished by the law, and the question must be determined in each case according to the teachings of reason . . . .” (Citations omitted; internal quotation marks omitted.) State v. Wieler, supra, 35 Conn. App. 576-77.

The proffered testimony of Jackson would not have had the tendency to establish the existence of a material fact. At best, Jackson’s testimony would have established that Jackson was not present at Henderson’s apartment, as Douglas testified, when the defendant and Bowden arrived there after the shooting. It would not have directly contradicted, contravened or negated Douglas’ testimony that Douglas overheard the defendant and Bowden argue about which of them had fired the shot that killed Coleman. To the extent that Jackson’s testimony was offered for the purpose of impeaching Douglas, it would have indicated only that Douglas was mistaken as to the identity of one of several people present in the apartment, which is a collateral matter. Thus, the trial court properly found that Jackson’s testimony would not have been relevant.

Because the trial court properly determined that the proffered testimony of Jackson was not relevant, we conclude that the court did not act arbitrarily, and, therefore, did not abuse its discretion by denying the continuance.

Ill

The defendant’s last claim is that the trial court improperly instructed the jury on the mental state required for accessorial liability for manslaughter in the second degree. He argues that the court improperly informed the jury that it could convict the defendant upon a finding that he had “recklessly” aided the principal in causing Coleman’s death. He asserts that the court’s instruction was contrary to the statutory scheme and misled the jury into convicting him of manslaughter in the second degree on a finding of a less culpable mental state than that required by § 53a-8. The defendant failed to preserve this claim at trial and now seeks review pursuant to State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989).

The first two prongs of Golding are satisfied. The defendant has provided an adequate record for review and has alleged a claim of constitutional magnitude arguing that the trial court failed to instruct the jury properly on an essential element of the crime charged. See State v. Tweedy, 219 Conn. 489, 510, 594 A.2d 906 (1991); State v. Williamson, 206 Conn. 685, 708, 539 A.2d 561 (1988). We must now determine whether the alleged error in the jury instructions clearly misled the jury and clearly deprived the defendant of a fair trial.

“In reviewing a constitutional challenge to the trial court’s instructions, we must consider the jury charge as a whole to determine whether it is reasonably possible that the instruction misled the jury. ... A jury instruction is constitutionally adequate if it provides the jurors with a clear understanding of the elements of the crime charged, and affords them proper guidance for their determination of whether those elements were present. . . . The purpose of a charge is to call the attention of the members of the jury, unfamiliar with legal distinctions, to whatever is necessary and proper to guide them to a right decision in a particular case. . . .” (Citations omitted; internal quotation marks omitted.) State v. Lemoine, 39 Conn. App. 657, 665-67, 666 A.2d 825 (1995). In evaluating the propriety of the supplemental charge, we must examine both the main and supplemental charge as a whole. State v. Williams, 199 Conn. 30, 41, 505 A.2d 699 (1986).

A review of the main and supplemental charges reveals that the trial court carefully and correctly instructed the jury as to the elements of accessorial liability and as to each of the homicide charges, including manslaughter in the first and second degrees, and criminally negligent homicide. The court thoroughly explained the meaning of the terms “intent” and “recklessness” as applied to the charges and properly instructed the jury on the requisite mental state required to establish accessorial liability. On twelve separate occasions, in both the main and supplemental charges, the court properly instructed the jury that it could find the defendant guilty as an accessoiy if it found that he solicited, requested, commanded, importuned or “intentionally” aided another person in the commission of one of the underlying homicide offenses. The record further discloses, however, that the court also improperly instructed on accessorial liability four times by stating that a person is an accessory when he “recklessly” solicits, requests, commands, importunes or “intentionally” aids the principal. The defendant asserts that this flawed instruction misled the jury into convicting him of manslaughter in the second degree on a lesser mental state than that required for conviction and thereby deprived him of a fair trial.

While it is of paramount importance that jury instructions be clear and accurate regarding the essential elements of the crime charged; State v. Griffin, 175 Conn. 155, 163, 397 A.2d 89 (1978); they “ ‘need not be exhaustive, perfect or technically accurate . . . ” State v. Theriault, 38 Conn. App. 815, 819, 663 A.2d 423 (1995). Applying the standard of review demanded of this court when the defendant claims that the instructions of the trial court violated constitutional due process, we cannot say, reading the instructions as a whole, that they were so deficient that it was reasonably possible that the jury was misled. State v. Allen, 28 Conn. App. 81, 84, 611 A.2d 886, cert. denied, 223 Conn. 920, 614 A.2d 826 (1992). Although the challenged portions of the instructions were less than perfect, the requisite understanding and guidance was provided by the charge as a whole. Viewed in their entirety and measured against the factual context of the case, the main and supplemental charges sufficiently communicated to the jury that it was necessary to find that the defendant intentionally acted as an accessory before it could find him guilty under § 53a-8. There exists no reasonable possibility, therefore, that the jury was misled or that the defendant did not receive a fair trial.

We conclude that because the defendant failed to establish that he was deprived of a fair trial, his claim fails to satisfy the third prong of Golding.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-56 (a) provides in pertinent part: “A person is guilty of manslaughter in the second degree when: (1) He recklessly causes the death of another person . . . .”

       General Statutes § 53a-8 (a) provides in pertinent part: “A person, acting with the mental state required for commission of an offense, who . . . intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender.”

       The challenged evidence was not offered to show the prior bad acts of third parties as the defendant claims; it was offered to prove motive.

       Under Golding, the defendant can prevail on an unpreserved claim of constitutional error “only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail. The appellate tribunal is free, therefore, to respond to the defendant’s claim by focusing on whichever condition is most relevant in the particular circumstances. ” State v. Golding, supra, 213 Conn. 239-40.

       “The first two conditions [of Golding] are determinations of whether a defendant’s claim will be reviewed, and the third condition involves a review of the claim itself.” State v. Graham, 33 Conn. App. 432, 442, 636 A.2d 852, cert. denied, 229 Conn. 906, 640 A.2d 117 (1994).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    T.P. BREWER CONSTRUCTION COMPANY, INC. v. F AND G ASSOCIATES ET AL.
    (14082)
    Foti, Schailer and Hull, Js.
    Argued October 23, 1995
    decision released January 2, 1996

      Martin A. Clayman, for the appellants (defendants).

      Stephen J. Sinatro, for the appellee (plaintiff).
   PER CURIAM.

The defendants appeal from the judgment of the trial court rendered in favor of the plaintiff. The plaintiff brought this action based on theories of breach of contract and quantum meruit against the general partnership of F & G Associates (F & G), Philip Fine individually, Morton Fine individually and J. Scott Guilmartin individually in connection with the performance of site work at an office park in East Granby. F & G asserted a counterclaim against the plaintiff and a third party complaint against Terrence P. Brewer.

After a trial, the court rendered judgment on the complaint in favor of the plaintiff against Philip Fine, Morton Fine and J. Scott Guilmartin on the theory of quantum meruit. The court also rendered judgment on the counterclaim in favor of the plaintiff and on the third party complaint in favor of Brewer. Subsequently, the trial court rendered judgment in favor of the defendant F & G on the complaint. See T.P. Brewer Construction Co. v. F & G Associates, 34 Conn. App. 714, 643 A.2d 308 (1994).

While much of the evidence at trial was disputed, it is axiomatic that this court cannot retry the facts or pass on the credibility of witnesses. State v. Speers, 17 Conn. App. 587, 592, 554 A.2d 769, cert. denied, 211 Conn. 808, 559 A.2d 1142, cert. denied, 493 U.S. 851, 110 S. Ct. 150, 107 L. Ed. 2d 108, cert. denied sub nom. George v. Connecticut, 493 U.S. 893, 110 S. Ct. 241, 107 L. Ed. 2d 192 (1989). The claims raised on appeal attack the court’s factual findings. There was neither a motion to correct nor a motion for articulation filed. The defendants have failed to demonstrate that the trial court’s findings were clearly erroneous or that its decision was otherwise erroneous in law. Practice Book § 4061. Our review of the record falls to disclose that those factual findings were unsupported by the evidence. Cromwell Common Associates v. Hoziuro, 21 Conn. App. 1, 5, 570 A.2d 1131 (1990). The court’s findings that led to the conclusion that damages were proven with reasonable certainty were not shown to be clearly erroneous. See Fuessenich v. DiNardo, 195 Com. 144, 156-57, 487 A.2d 514 (1985).

The judgment is affirmed.

       The named defendant, F & G Associates (F & G), was listed as an appellant on the defendants’ docketing statement. Because the supplemental judgment was rendered in favor of F & G, it is not an aggrieved party. See General Statutes § 52-263; Practice Book § 4000. We refer to the appellants Morton Fine, Philip Fine and J. Scott Guilmartin as the defendants in this opinion.

       The stock of the plaintiff corporation was owned in equal amounts by Terrence P. Brewer, its president, and J. Scott Guilmartin.

       The general partners of F & G Associates were Philip Fine, Morton Fine and J. Scott Corporation. J. Scott Corporation was owned in equal shares by J. Scott Guilmartin and Terrence Brewer. Terrence Brewer was the president of J. Scott Corporation. J. Scott Corporation was not made a party to this action.

       Practice Book § 4061 provides in pertinent part: “The court may reverse or modify the decision of the trial court if it determines that the factual findings are clearly erroneous in view of the evidence and pleadings in the whole record, or that the decision is otherwise erroneous in law. . . .”


author: FOTI, J.

text:
    STATE OF CONNECTICUT v. DONALD LEE MCELYEA
    (13844)
    Foti, Landau and Spear, Js.
    Argued November 7, 1995
    decision released January 2, 1996

      Richard Emanuel, assistant public defender, for the appellant (defendant).

      Paul J. Ferencek, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, Joan Alexander, assistant state’s attorney, and David J. Sheldon, former deputy assistant state’s attorney, for the appellee (state).
   FOTI, J.

The defendant appeals from the judgment of conviction rendered after his plea of guilty under the Alford doctrine to attempted assault in the first degree in violation of General Statutes §§ 53a-49 and 53a-59 (a) (1), and burglary in the first degree in violation of General Statutes § 53a-101 (a) (l). The sole issue in this appeal is whether the defendant’s pleas were obtained in violation of his constitutional rights, specifically, the fourteenth amendment to the United States constitution, and article first, § 8, of the Connecticut constitution. At no time did the defendant seek to withdraw his pleas of guilty. Because the defendant’s claim implicates the failure of the trial court to apprise him of the constitutionally mandated requirements for a valid plea, his claim is properly reviewable despite the absence of a motion to withdraw those pleas. State v. Badgett, 200 Conn. 412, 418, 512 A.2d 160, cert. denied, 479 U.S. 940, 107 S. Ct. 423, 93 L. Ed. 2d 373 (1986).

On August 19, 1993, at approximately 8 a.m., the defendant, a resident of Tennessee, broke into the house of his former wife, pointed a loaded gun at her husband, threatened to kill him, asked if there was a death penalty in this state, and pulled the trigger three times. The weapon misfired each time and three of the cartridges in the gun showed signs of having been struck by the firing pin. After the incident, the defendant’s former wife and her husband did not notify the police and the defendant returned to Tennessee. Four days later, on August 23, 1993, the defendant threatened his former wife by telephone, prompting her to file a complaint with the police. On August 26, 1993, a warrant was issued for the defendant’s arrest and the authorities subsequently returned the defendant to Connecticut. On December 22, 1993, the defendant was arraigned. He was advised of his rights, including “the right to plead not guilty to the charges against you and have a trial in front of either a judge or a jury.” He thereafter acknowledged that he had heard and understood the court’s advisement of his rights. A public defender was appointed and bail was set. On January 11,1994, private counsel filed his appearance and entered pro forma not guilty pleas to all of the counts on the long form information that had been filed. An election of trial by jury was made, and the matter was continued. On March 17, 1994, the state filed a substitute long form information that omitted three of the five counts. The defendant, with counsel, withdrew his prior pleas and his election to be tried by a jury, and entered his guilty pleas. During the plea colloquy, the trial court advised the defendant that he was giving up his right to a trial, rather than waiving his right to a jury trial.

The defendant contends that this matter is distinguishable from State v. Badgett, supra, 200 Conn. 412. We do not agree. In Badgett, our Supreme Court concluded “that the trial court’s express mention of waiver of the right to trial, combined with the defendant’s prior election for a jury trial, his experience with criminal proceedings and apparently adequate representation by counsel, satisfy the constitutional requirement [of a waiver of his right to a jury trial as enunciated in Boykin v. Alabama, 395 U.S. 238, 243, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969)].” (Emphasis in original.) State v. Badgett, supra, 419-20. Although the record fails to disclose that the defendant had any prior experience with the criminal justice system, in all other respects, the factors considered by our Supreme Court in Badgett exist herein. The defendant, a college graduate, cannot prevail on his claim that his plea was not knowingly, voluntarily and intelligently made because he was not adequately advised that his plea operated as a waiver of his constitutional right to a jury trial. Badgett is controlling.

The judgment is affirmed.

In this opinion the other judges concurred.

        North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

       These charges were filed in a substitute long form information on March 17, 1994. By previous original information filed on January 11, 1994, the defendant had been charged additionally with the crimes of attempted murder in violation of General Statutes §§ 53a-49 (a) (2) and 53a-54a (a), attempted kidnapping in the first degree with a firearm in violation of General Statutes §§ 53a-49 (a) (2) and 53a-92a, and carrying a pistol without a permit in violation of General Statutes § 29-35.

       The defendant also claims that his guilty pleas were obtained in violation of the rules of practice, in that the trial court failed to comply with the dictates of Practice Book § 711 (5) and seeks plain error review on this unpreserved claim. We will not review this claim. See State v. Nelson, 221 Conn. 635, 605 A.2d 1381 (1992).

       The defendant does not contest the adequacy of the factual basis for his pleas.

       At this initial arraignment he was charged on a short form information with attempted murder, attempted kidnapping in the first degree with a firearm, and burglary in the first degree.

       See footnote 2.

       During the plea canvass, the trial court on different occasions referred to “the trial,” “a trial,” “trial,” “your trial” and “go to trial.”

       While the record in Badgett is silent as to the defendant’s being advised of his right to a jury trial, and our Supreme Court presumed that “the defendant must have been advised of his right to a trial by either the court or a jury, because he elected a jury trial”; State v. Badgett, supra, 200 Conn. 419; the record in this case is clear that the defendant was so advised and that he heard and understood that advisement and had no questions concerning his rights. Moreover, the time between the arraignment and the withdrawal of plea and election in Badgett was ten months; in the case at hand the period was only three months.


author: SPEAR, J.

text:
    COLUMBIA FEDERAL SAVINGS BANK v. INTERNATIONAL SITE CONSULTANTS, INC., ET AL.
    (14346)
    Landau, Spear and Hennessy, Js.
    Argued September 28, 1995
    decision released January 9, 1996

      Joseph A. Kriz, for the appellant (defendant New-brook Associates, Inc.).

      Roy H. Scharf for the appellee (substitute plaintiff).
   SPEAR, J.

The defendant Newbrook Associates, Inc. (Newbrook), appeals from the judgment of foreclosure rendered after the trial court granted the named plaintiffs motion for summary judgment. On appeal, New-brook asserts that the trial court improperly granted summary judgment because (1) Newbrook held an equitable lien on the subject premises that was superior to the mortgage being foreclosed, (2) the equitable lien was a charge on property and not an interest in property and thus not subject to the time limitations of General Statutes § 47-33a, (3) Newbrook commenced a timely action on its statutory lien pursuant to General Statutes § 49-92c, and (4) genuine issues of material fact existed. We disagree with Newbrook’s assertions and affirm the judgment of the trial court.

The relevant facts are as follows. On December 16, 1986, Newbrook entered into a real estate contract to purchase a parcel of real estate from the named defendant, International Site Consultants, Inc. (International). The contract provided for a deposit of $120,000. On February 26, 1987, International and Newbrook executed an addendum to the contract that provided for Newbrook to purchase a second parcel and to make an additional deposit of $45,000. The contract and addendum were recorded on March 12, 1987. The contract clause at issue is termed “Buyer’s Lien” and provides that “[a]ll sums paid on account of this Agreement are hereby made hens thereon, but such hens shall not continue after default by the Buyer under the terms of this Agreement.”

In addition, paragraph eleven of the contract makes Newbrook’s obligation to purchase the parcels contingent on International’s obtaining the necessary approvals for the development of a thirteen lot subdivision. The contract further provided that should International fail to obtain such approvals by December 1,1987, New-brook could elect to accept title, rescind the contract or provide International with additional time, not to exceed three years, to seek the necessary approvals.

The first parcel of land was subsequently mortgaged by International to the named plaintiff, Columbia Federal Savings Bank (bank), to secure a $250,000 note. The mortgage was dated February 27, 1987, and recorded on March 2, 1987. As further collateral for the note, International assigned to the bank the December 16, 1986 contract entered into by International and New-brook. Although the contract was not recorded until March 12, 1987, the bank conceded that it had actual notice of the contract and addendum at the time the bank and International executed the February 27, 1987 mortgage.

The second parcel was then mortgaged by International to the bank to secure a $130,000 note. This mortgage, dated July 21,1987, and recorded on July 22,1987, also covered the first parcel of land as a second mortgage.

The record reflects that International did not obtain the necessary approvals by December 1, 1987. New-brook terminated the real estate contract on December 5, 1989, and demanded the return of the deposits it had paid. After International refused to return the deposits, Newbrook brought suit against International seeking rescission of the contract and money damages. The bank brought an action to foreclose the mortgages because International had defaulted on its payments. Newbrook was made a party to that action because of its claim that it possessed both a common law equitable lien and a purchaser’s lien pursuant to the provision in the contract.

The bank filed a motion for summary judgment as against Newbrook only. The trial court, in granting the bank’s motion, concluded that Newbrook possessed only a purchaser’s lien, not an equitable lien, and that such lien had expired prior to the commencement of the action pursuant to General Statutes §§ 49-92c and 47-33a. Thereafter, the trial court rendered a judgment of strict foreclosure in favor of General Financial Services, Inc., which had been substituted as plaintiff after the mortgage was transferred to it. This appeal followed.

I

Newbrook first claims that it held an equitable lien that was not subject to the statutory two year time limitation provided in § 49-92c. We disagree and conclude that any equitable hen held by Newbrook was subject to the two year time limitation and, thus, had expired prior to the commencement of the action.

Both parties agree that Newbrook once held a purchaser’s lien in the amount of the deposit it had paid pursuant to paragraph ten of the contract. This paragraph of the contract, however, merely recites a statutory right already conferred upon purchasers. General Statutes § 49-92a provides in pertinent part: “A purchaser’s lien is created for the amount of the deposit paid pursuant to and stated in the contract for the conveyance of land by the recording of that contract . . . .”

The primary issue on appeal centers around the intent of this legislation and what effect the statute has on the common law equitable lien. The common law equitable lien is “a right, not existing at law, to have specific property applied in whole or in part to payment of a particular debt or class of debts.” Black’s Law Dictionary (6th Ed. 1990). As such, it “constitutes a charge or encumbrance upon the thing, so that the very thing itself may be proceeded against in an equitable action . . . .” 3 J. Pomeroy, A Treatise on Equity Jurisprudence (4th Ed. 1918) § 1233, p. 2958.

Newbrook asserts that the enactment of § 49-92a does not abrogate or impact its common law equitable lien, and that its equitable lien retained priority over the bank’s mortgage. The trial court concluded that Newbrook’s claimed lien expired by the passage of the statutory two year time limitation of § 49-92c. The trial court reached this conclusion after noting that while our courts recognize the equitable lien doctrine, “Newbrook has cited no legal authority for the position that the equitable lien can exist independent of and contrary to the statutory provisions.” Newbrook claims that the equitable lien does exist independent of the statutory lien and that the legislature did not intend to affect the equitable lien through its passage of § 49-92a.

We are guided by our well established rules of statutory construction in ascertaining the statute’s intent and effect. It is well settled that “[i]n construing a statute, common sense must be used . . . .” Norwich Land Co. v. Public Utilities Commission, 170 Conn. 1, 4, 363 A.2d 1386 (1975). Further, we must construe a statute to avoid results that are irrational and insensible. Caltabiano v. Planning & Zoning Commission, 211 Conn. 662, 667, 560 A.2d 975 (1989); Maciejewski v. West Hartford, 194 Conn. 139, 152, 480 A.2d 519 (1984).

Common sense dictates that the legislature intended to subject the common law equitable lien to the statutory lien provisions. One obvious purpose of § 49-92c is to ensure that a lienholder could not hold a lien over the subject property indefinitely. For this reason, the legislature enacted the statute, which provides for the termination of all purchaser’s liens that have continued in force for two years absent any action to foreclose the lien within that two year period. Irrational and insensible results would follow were we to conclude that an equitable lien can exist independent of and contrary to the time limitations posed by § 49-92c. Such a conclusion would allow Newbrook to circumvent the time limitations of § 49-92c, and thereby nullify the effect of the statute and thwart its purpose. We do not interpret a statute in such a way that thwarts its purpose. See Kron v. Thelen, 178 Conn. 189, 192, 423 A.2d 857 (1979).

Our Supreme Court has held that one cannot, by bringing a common law action of indebitatus assumpsit, circumvent the statutory time limitations of General Statutes § 12-117a (appeal from property tax valuation) and General Statutes § 12-119 (claim of wrongful tax assessment). Norwich v. Lebanon, 200 Conn. 697, 708-13, 513 A.2d 77 (1986). The Supreme Court reasoned that one could not resort to the equitable writ of assumpsit because “where a statute has established a procedure to redress a particular wrong a person must follow the specified remedy and may not institute a proceeding that might have been permissible in the absence of such a statutory procedure.” Id., 708. “Although resting on the doctrine of exhaustion of remedies, our decision in Norwich recognized that the legislative purpose behind the limitation periods for challenging tax assessments would be thwarted if an action for refund of taxes paid upon a disputed assessment could be brought far beyond the time limits for contesting an assessment established by these statutes.” (Internal quotation marks omitted.) Wilson v. Kelley, 224 Conn. 110, 122-23, 617 A.2d 433 (1992).

Similarly, were we to accept Newbrook’s theory, then once a contract for the sale of land is recorded, the buyer’s equitable lien would exist for an indeterminate period of time, casting a shadow over the title to the subject property. This is precisely the problem that the legislature intended to cure by enacting § 49-92c. We, therefore, conclude that § 49-92a circumscribes the common law equitable lien by subjecting it to the time limitations of § 49-92c.

In its brief, Newbrook also raises the issue of whether the trial court improperly failed to recognize that its equitable lien was a charge on property and not an interest in property, and thus not subject to the time limitations of § 47-33a. Because we find that New-brook’s lien rights are barred pursuant to § 49-92c, we need not address this issue.

II

Newbrook next claims that its statutory lien is not barred because its action to foreclose was timely. We disagree.

Pursuant to § 49-92c, “[n]o purchaser’s lien shall continue in force for a longer period than two years after such lien has been perfected, unless the party claiming such lien, within said period, commences an action to foreclose the same and proceeds therewith to final judgment. . . .” “The legislature is supreme in the area of legislation, and courts must apply statutory enactments according to their plain terms.” Federal Aviation Administration v. Administrator, Unemployment Compensation Act, 196 Conn. 546, 550, 494 A.2d 564 (1985). According to the plain terms of § 49-92c, New-brook’s action was untimely.

The contract was recorded on March 12, 1987. New-brook terminated the contract on December 5, 1989. In 1990, Newbrook commenced an action against International seeking rescission of the contract and money damages. Newbrook did not institute a foreclosure action. Furthermore, Newbrook cannot rely on the bank’s foreclosure action against International because Newbrook, although made a party to that action, did not file a cross claim seeking foreclosure of its hen. The trial court’s finding that Newbrook’s hen had expired was, therefore, proper.

III

We next address Newbrook’s final claim that genuine issues of material fact existed to preclude summary judgment. After a careful inspection of the record, we find that this claim has no merit.

Our standard for reviewing a trial court’s granting of summary judgment is well established. “Practice Book § 384 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact .... In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.” (Internal quotation marks omitted.) Water & Way Properties v. Colt’s Mfg. Co., 230 Conn. 660, 664, 646 A.2d 143 (1994). Moreover, the party seeking summary judgment “has the burden of showing the nonexistence of any issue of [material] fact.” D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980).

Newbrook claims that genuine issues of material fact existed as to the time of performance of the real estate contract, the amount of the deposit and the bank’s obligation on the contract. Newbrook filed no counteraffi-davits, but claims that the bank’s complaint created these questions of fact.

As to the time of performance, paragraph eleven of the real estate contract sufficiently details the parties’ respective times for performance. Because Newbrook conceded that it had actual notice of the contract and its provisions, and because there was no other evidence before the trial court at the time it considered the bank’s motion, we conclude that no genuine issue of fact existed as to the time of performance.

Newbrook also claims in its brief that a genuine issue of material fact existed as to the amount of the deposit. Newbrook cites nothing in the record, however, to guide us in determining whether such an issue of fact existed.

Finally, no genuine issue of material fact existed as to the bank’s obligation on the contract. The bank’s obligation emanates from International’s assignment of its contract with Newbrook to the bank. The assignment clearly establishes the bank’s obligation. No issue of fact thus existed as to the bank’s obligation on the contract. We conclude that the trial court acted properly in granting summary judgment.

The judgment is affirmed.

In this opinion the other judges concurred.

         General Statutes § 47-33a (a) provides: “No interest in real property existing under an executory agreement for the sale of real property or for the sale of an interest in real property or under an option to purchase real property shall survive longer than one year after the date provided in the agreement for the performance of it or, if the date is not so provided, longer than eighteen months after the date on which the agreement was executed, unless the interest is extended as provided herein or unless action is commenced within the period to enforce the agreement and notice of lis pendens is filed as directed by section 52-325.”

       General Statutes § 49-92c provides in pertinent part: “No purchaser’s lien shall continue in force for a longer period than two years after such lien has been perfected, unless the party claiming such lien, within said period, commences an action to foreclose the same and proceeds therewith to final judgment. . . .”

       Although the trial court, in its memorandum of decision, recited that Newbrook had paid deposits totaling only $87,500, both parties agree, in their briefs, that Newbrook had paid a total of $110,000.

       See footnote 2.

       See footnote 1.

       See footnote 2.

       See footnote 1.


text:
    IN RE KARRLO K. ET AL.

    (13992)
    O’Connell, Lavery and Heiman, Js.
    Argued November 2, 1995
    decision released January 9, 1996

      Richard T. Miller, certified legal intern, with whom was Ronald E. Sobieraj, for the appellant (respondent mother).

      James Kelly, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Susan T. Pearlman and Michael J. Besso, assistant attorneys general, for the appellee (petitioner).

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 4166B.2, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.
      Reporter of Judicial Decisions

   PER CURIAM.

The commisioner of children and families filed a petition seeking to terminate the parental rights of the respondent mother and the respondent father regarding their minor child Karrlo and a petition seeking to terminate the parental rights of the respondent mother (the biological father was listed as “unknown”) regarding her minor child Tyler.

After a full trial, the court found that the respondent had abandoned her children, had failed to rehabilitate herself, and that she had no ongoing parent-child relationship with either Karrlo or Tyler. The court found that each of these grounds had been established by clear and convincing evidence and further found that the children’s best interests would be served by the termination of the respondent’s parental rights. The trial court therefore granted the petition to terminate the parental rights of the respondent as well as the rights of the father.

The respondent appealed to this court claiming that the trial court (1) improperly continued the termination of parental rights proceedings after determining that the respondent was incompetent, (2) improperly determined the children’s best interests, (3) violated the Americans with Disabilities Act; 42 U.S.C. § 12101 et seq.; (4) improperly determined that the petitioner had proven by clear and convincing evidence that there was no ongoing mother-child relationship, and (5) improperly determined that the petitioner had proven by clear and convincing evidence that the children had been abandoned by the respondent.

We are persuaded by our examination of the record, briefs and arguments of the parties, that the judgment of the trial court should be affirmed. In a thoughtful and comprehensive memorandum of decision, the trial court analyzed the law in a manner consistent with our statutes and case precedents. In re Karrlo K., 44 Conn. Sup. 101, 669 A.2d 1249 (1995). Because that memorandum addresses the arguments raised in this appeal, we adopt the trial court’s well reasoned decision as a statement of the applicable law on these issues. It would serve no useful purpose for us to repeat the discussion contained therein. See Federal Home Loan Mortgage Corp. v. Bardinelli, 39 Conn. App. 786, 667 A.2d 806 (1995); State v. Mobley, 33 Conn. App. 103, 633 A.2d 726 (1993), cert. denied, 228 Conn. 917, 636 A.2d 849 (1994).

The judgment is affirmed.

       Although the father’s parental rights were also terminated, he did not contest the petition or participate in this appeal. We therefore use the term respondent to refer solely to the mother.


author: DUPONT, C. J.

text:
    STEPHEN C. BOMBERO v. PLANNING AND ZONING COMMISSION OF THE TOWN OF TRUMBULL
    (13780)
    Dupont, C. J., Landau and Schaller, Js.
    Argued September 27, 1995
    decision released January 9, 1996

      Barbara F. Green, for the appellant (plaintiff).

      Burton S. Yaffie, for the appellee (defendant).
   DUPONT, C. J.

The plaintiff appeals from a declaratory judgment in which the trial court refused to grant declaratory relief because it concluded that there was no actual controversy between the parties. The plaintiff claims that the trial court improperly concluded that he was not entitled to seek declaratory relief. We agree with the plaintiff and conclude that the plaintiff has shown the requisite degree of uncertainty as to his rights as a property owner, sufficient to entitle him to seek declaratory relief.

Certain facts and procedural history are relevant to this appeal. The plaintiff brought this declaratory judgment action, challenging the constitutionality of an amended Trumbull subdivision regulation. It is the second action brought by the plaintiff involving the same regulation. In the earlier action, the plaintiff and nine other individuals appealed from the enactment of the amendment to the Superior Court, claiming, among other things, that the amendment was impermissibly vague. The trial court sustained the plaintiffs appeal and issued a ruling that “the regulation is . . . void for vagueness.” The trial court in a subsequent written memorandum of decision stated that the “regulation lacks standards sufficient to guide the commission and to enable those affected to know their rights and obligations.”

Upon our granting of a petition for certification, the defendant planning and zoning commission of the town of Trumbull (commission) appealed to this court. That appeal was transferred to our Supreme Court pursuant to Practice Book § 4023. Our Supreme Court held that “where, as here, the plaintiff mounts a general attack on the legislative enactment of a regulation, primarily based on constitutional vagueness grounds, and combines therewith nonconstitutional grounds for the regulation’s invalidity, he must do so by a declaratory judgment action rather than by an appeal from the enactment. Thus, the plaintiffs in this case should have brought a declaratory judgment action in order to raise their challenges to the facial invalidity of the regulation.” Bombero v. Planning & Zoning Commission, 218 Conn. 737, 745-46, 591 A.2d 390 (1991). Accordingly, the plaintiff then brought the present declaratory judgment action.

Following a hearing and testimony, the trial court denied the plaintiffs request for declaratoiy relief and held that “there is no actual controversy between the parties as required by Connecticut Practice Book § 390 (a) and (b) and that there is no sufficient practical need for the declaratory judgment which the plaintiff seeks.”

In this appeal, the plaintiff claims that (1) the trial court improperly held that the plaintiff is not entitled to seek declaratory relief, (2) the regulation adopted by the commission implicates the provisions of both article first, § 8, of the constitution of Connecticut and the fourteenth amendment to the United States constitution because the language of the regulation is vague and ambiguous, (3) the action taken by the commission in enacting the regulation is outside the scope of the authority vested in it by the provisions of General Statutes § 8-25, (4) the action taken by the commission in enacting the regulation constitutes a taking of the plaintiffs land without just compensation and is in violation of article first, § 11, of the constitution of Connecticut as well as the fourteenth amendment to the United States constitution. With the exception of the first claim, all of these claims were made in the first action involving the same amendment to the subdivision regulation.

The purpose of a declaratory judgment action, as authorized by General Statutes § 52-29 and Practice Book § 390, is to “secure an adjudication of rights where there is a substantial question in dispute or a substantial uncertainty of legal relations between the parties.” Connecticut Assn. of Health Care Facilities, Inc. v. Worrell, 199 Conn. 609, 613, 508 A.2d 743 (1986). Section 52-29 (a) permits the Superior Court to “declare rights and other legal relations.” Similarly, Practice Book § 390 (a) authorizes a court to render a declaratory judgment if a plaintiff has a legal interest “by reason of danger of loss or of uncertainty as to his rights or other jural relations . . . .” (Emphasis added.) “The provision [of Practice Book § 390] that there must be an issue in dispute or an uncertainty of legal relations which requires settlement between the parties means no more than that there must appear a sufficient practical need for the determination of the matter.” Larkin v. Bontatibus, 145 Conn. 570, 575, 145 A.2d 133 (1958).

Statutes and rules relating to the remedy of declaratory judgments are given a liberal construction to effectuate their purposes. Connecticut Savings Bank v. First National Bank & Trust Co., 133 Conn. 403, 409, 51 A.2d 907 (1947). “One great purpose is to enable parties to have their differences authoritatively settled in advance of any claimed invasion of rights, that they may guide their actions accordingly and often may be able to keep them within lawful bounds, and so avoid the expense, bitterness of feeling and disturbance of the orderly pursuits of life which are so often the incidents of law suits. Fully to carry out the purposes intended to be served by such judgments, it is sometimes necessary to determine rights which will arise or become complete only in the contingency of some future happening. Even if the right claimed . . . is a contingent one, its present determination may well serve a very real practical need of the parties for guidance in their future conduct. A construction of our statute and rules which would exclude from the field of their operation the determination of rights, powers, privileges and immunities which are contingent upon the happening or not happening of some future event would hamper their useful operation.” (Emphasis added.) Sigal v. Wise, 114 Conn. 297, 301-302, 158 A. 891 (1932).

Our Supreme Court has recognized that its “cases have not always been consistent in requiring a declaratory judgment action as the method by which to chai-lenge the validity of zoning or planning regulations. Compare Bottone v. Westport, 209 Conn. 652, 553 A.2d 576 (1989), Blue Sky Bar, Inc. v. Stratford, 203 Conn. 14, 523 A.2d 467 (1987), Aunt Hack Ridge Estates, Inc. v. Planning Commission, 160 Conn. 109, 273 A.2d 880 (1970), Calve Bros. Co. v. Norwalk, 143 Conn. 609, 124 A.2d 881 (1956), Gohld Realty Co. v. Hartford, 141 Conn. 135, 104 A.2d 365 (1954), Cristofaro v. Planning & Zoning Commission, [11 Conn. App. 260, 527 A.2d 255, cert. denied, 204 Conn. 810, 528 A.2d 1156 (1987)] (declaratory judgment actions), with Carofano v. Bridgeport, 196 Conn. 623, 495 A.2d 1011 (1985) (injunction) , New Milford v. SCA Services of Connecticut, Inc., 174 Conn. 146, 384 A.2d 337 (1974) (injunction), Sonn v. Planning Commission, 172 Conn. 156, 374 A.2d 159 (1976) (appeal), Zenga v. Zebrowski, 170 Conn. 55, 364 A.2d 213 (1975) (appeal).” Bombero v. Planning & Zoning Commission, supra, 218 Conn. 744. Although the Supreme Court did not reconcile these cases, it did make clear that a declaratory judgment, rather than a statutory appeal, was the correct means of obtaining relief for the plaintiff in this case because he had made both constitutional and unconstitutional claims, which he could not do in a statutory appeal. Id., 745.

In spite of the acknowledged variance to be found among the holdings of cases where declaratory relief has been sought, certain principles and recurrent factors have emerged. A plaintiff should have a legal or equitable interest in the controversy. See Steeneck v. University of Bridgeport, 235 Conn. 572, 579, 668 A.2d 688 (1995); Lipson v. Bennett, 148 Conn. 385, 389, 171 A.2d 83 (1961); Board of Education v. Board of Finance, 127 Conn. 345, 347-48, 16 A.2d 601 (1940). A plaintiff should need an authoritative settlement of that interest so that he may avoid the expense of future litigation or action. Sigal v. Wise, supra, 114 Conn. 301. The trial court should consider equitable principles in determining the rights of the parties. Middlebury v. Sleinmann, 189 Conn. 710, 715, 458 A.2d 393 (1983). A declaratory judgment action may be used to determine the constitutionality of a particular statute or regulation. St. John’s Roman Catholic Church Corp. v. Darien, 149 Conn. 712, 718, 184 A.2d 42 (1962) (action for declaratory judgment determining constitutionality of municipal zoning regulations governing location of parochial schools); Karen v. East Haddam, 146 Conn. 720, 155 A.2d 921 (1959) (action for declaratory judgment determining constitutionality of local ordinance governing licensing of trailer and mobile home parks); Cyphers v. Allyn, 142 Conn. 699, 118 A.2d 318 (1955) (action for declaratory judgment determining constitutionality of act governing licensing of real estate brokers and salesmen).

In land use cases, a plaintiff who has applied to an administrative agency for a permit, variance, subdivision or similar relief, cannot attack the constitutionality of the provision governing the issuance of that relief when appealing from that agency’s decision. Bierman v. Westport Planning & Zoning Commission, 185 Conn. 135, 139, 440 A.2d 882 (1981) (appeal from denial of site plan application); J & M Realty Co. v. Norwalk, 156 Conn. 185, 191, 239 A.2d 534 (1968) (subdivision appeal); Strain v. Zoning Board of Appeals, 137 Conn. 36, 38-39, 74 A.2d 462 (1950) (application to build garage). A plaintiff may, however, attack the constitutionality of the regulations in an independent proceeding. St. John’s Roman Catholic Church Corp. v. Darien, supra, 149 Conn. 718.

The plaintiff was previously found by another trial court to be adversely affected by the regulation. The Supreme Court in that case directed the plaintiff to seek relief by means of a declaratory judgment. Bombero v. Planning & Zoning Commission, supra, 218 Conn. 745.

The plaintiff in the present case claims that the regulation is void for vagueness and has presented evidence that the validity of the regulation is a question in which other property owners may have an interest. Cioffoletti v. Planning & Zoning Commission, 209 Conn. 544, 563, 552 A.2d 796 (1989). If the plaintiff had filed a subdivision application with the defendant commission in an attempt to determine conclusively whether the regulation prohibited him from subdividing his property, he could not have simultaneously appealed from the denial of that application and also attacked the constitutionality of the zoning regulation. Bierman v. Planning & Zoning Commission, 185 Conn. 135, 139, 440 A.2d 882 (1981).

We are not aware of any Connecticut case that requires a plaintiff first to apply for a permit, variance, subdivision or other similar relief before the plaintiff can be permitted to bring a subsequent declaratory judgment action in order to determine the constitutionality of the regulation that governs such relief. Such a requirement would not be in keeping with the highly remedial relief afforded by declaratory judgment actions. See Sigal v. Wise, supra, 114 Conn. 301-302. We must also, nevertheless, recognize the fundamental requirement that in order to attack the constitutionality of regulations, the plaintiff must demonstrate that his interests are adversely affected in that a legal or equitable interest is uncertain or in danger of loss. St. John’s Roman Catholic Church Corp. v. Darien, supra, 149 Conn. 718.

The requirement of standing in a declaratory judgment is often satisfied by the plaintiffs showing that he has applied for a permit, variance, subdivision or other such relief, and that he has been denied such relief. See J & M Realty Co. v. Norwalk, supra, 156 Conn. 187 (plaintiffs subdivision application denied by common council); see also St. John’s Roman Catholic Church Corp. v. Darien, supra, 149 Conn. 715 (defendant planning and zoning commission denied plaintiffs application for special building permit). Our Supreme Court, however, has permitted declaratory judgment actions to be used to determine the constitutionality of a statute or regulation without requiring the plaintiff to have first applied for relief under that statute or regulation. See Aaron v. Conservation Commission, 178 Conn. 173, 179, 422 A.2d 290 (1979) (remanding declaratory judgment action brought by plaintiff to determine whether defendant conservation commission had jurisdiction to issue inland wetlands permit where plaintiff refused to apply for such permit); see also Karen v. East Haddam, supra, 146 Conn. 725 (declaratory judgment rendered in action brought to determine validity of ordinance regulating trailer parks where plaintiff refused to seek permit required by such ordinance). In other words, standing to bring a declaratory judgment action is not necessarily dependent on conclusive negative action taken against the plaintiff in a prior proceeding.

On one occasion, our Supreme Court used its discretion to permit a plaintiff to bring a declaratory judgment action in order to determine the constitutionality of legislation governing the licensing of real estate brokers despite the plaintiffs having applied for and been granted a real estate broker’s license under the provisions of that legislation. Cyphers v. Allyn, supra, 142 Conn. 702. In that case, the Supreme Court found that “[w]hether there is a valid reason for refusing to entertain this action for a declaratory judgment need not be analyzed. The reservation presents questions of such public interest with respect to real estate brokers and agents that, in our discretion, we have decided to pass upon them. Ruppert v. Liquor Control Commission, 138 Conn. 669, 673, 88 A.2d 388 [1952].” Cyphers v. Allyn, supra, 702.

The principal issue in this case is whether the plaintiff has demonstrated that he is adversely affected by the regulation. “Standing requires no more than a colorable claim of injury . . . .” Maloney v. Pac, 183 Conn. 313, 321 n.6, 439 A.2d 349 (1981). We conclude that on the basis of the facts presented, the plaintiff has standing to bring a declaratory judgment action because, pursuant to Practice Book § 390 (a) and (b), he is adversely affected by the regulation. The fact that the plaintiff owns property that can be subdivided, which is clearly within the purview of the zoning regulation, coupled with the plaintiffs general attack on the legislative enactment of the regulation, based primarily on constitutional vagueness grounds, and the language of Bombero v. Planning & Zoning Commission, supra, 218 Conn. 745, suggesting that a declaratory judgment action was the proper vehicle to raise his constitutional challenge to the regulation in question, constitutes sufficient aggrievement for the plaintiff to seek declaratory relief.

The defendant in this case asserts that the allegations of the plaintiffs complaint are insufficient to support his claim for relief and argues that our decision in ASL Associates v. Zoning Commission, 18 Conn. App. 542, 599 A.2d 536 (1989), controls the outcome of the present case. Believing that ASL Associates was analogous to the present case, the trial court relied on that decision in concluding that there was no actual controversy between the parties. We conclude, however, that ASL Associates v. Zoning Commission, supra, 542, is not dispositive of the present appeal.

In ASL Associates, a plaintiff land development company sought declaratory relief to determine the applicability of a town zoning regulation to the plaintiffs special building permit. At the joint request of the parties, the trial court granted a motion for reservation upon stipulated facts to have this court resolve questions concerning the construction of a zoning regulation. The plaintiffs sole allegation relating to the defendant commission’s actions was as follows: “ ‘If the Zoning Commission takes action to declare the permit void, the plaintiff will be irreparably injured thereby.’ ” (Emphasis in original.) Id., 547. Because the plaintiffs complaint failed to raise any claim that the defendant commission had applied the regulation in question to its detriment, we concluded that the plaintiff failed to allege any actual controversy between the parties as required by Practice Book § 390 (b) and, therefore, declined to answer the reserved questions. Id.

The prerequisite determination of whether there is a substantial controversy or a sufficient uncertainty of legal relations that requires settlement between the parties must be made in the light of the particular circumstances involved in each case. Bania v. New Hartford, 138 Conn. 172, 175, 83 A.2d 165 (1951). “The complaint must state facts sufficient to set forth a cause of action entitling the plaintiff to a declaratory judgment. 1 Anderson, Declaratory Judgments (2d Ed.) § 257. To state a cause of action for such relief, facts showing the existence of a substantial controversy or uncertainty of legal relations which requires settlement between the parties must be alleged. Ordinarily, there should be an assertion in the pleadings by one party of a legal relation or status or right in which he has a definite interest, together with an assertion of the denial of it by the other party, thus setting forth a substantial dispute. Id., § 258.” Lipson v. Bennett, supra, 148 Conn. 389. “Unless, therefore, the complaint recites facts which present a question or issue not determined by the previous decisions, or in relation to which a substantial uncertainty of legal relations remains and requires settlement, no basis for a declaratory judgment has been presented.” Trubek v. Ullman, 147 Conn. 633, 635, 165 A.2d 158, cert. denied, 367 U.S. 907, 81 S. Ct. 1917, 6 L. Ed. 2d 1249 (1960).

In the present case, we agree with the commission’s assertion that the plaintiffs complaint fails to allege that he has been adversely affected as an owner of property that can be subdivided. The complaint does not allege that the disputed regulation prohibits the plaintiff from subdividing his property nor does the complaint allege that the plaintiff ever intends to file a subdivision application. The omission of an essential allegation in a complaint, however, is not necessarily a fatal deficiency where that deficiency should have been raised before trial, and the trial is conducted as though the allegation were present. Tedesco v. Stamford, 215 Conn. 450, 457, 576 A.2d 1273 (1990).

“The absence of a requisite allegation in a complaint that would have justified the granting of a motion to strike, however, is not a sufficient basis for vacating a judgment unless the pleading defect has resulted in prejudice. . . . Want of precision in alleging the cause of an injury for which an action is brought, is waived by contesting the case upon its merits without questioning such defect. Gargan v. Harris, 90 Conn. 188, 191, 96 A. 940 (1916). . . . Our rules of practice are designed to have all formal and technical objections made known as early as practicable, so that the plaintiff may amend or proceed anew, and the parties may, as expeditiously and inexpensively as possible, reach and settle their controversy upon its merits. Donaghue v. Gaffy, 53 Conn. 43, 52 (1885). The appeal process should not be utilized to seek to correct pleading deficiencies the party complaining clearly could have remedied under our rules in the trial court. Fuessenich v. DiNardo, 195 Conn. 144, 149, 487 A.2d 514 (1985).” (Citations omitted; internal quotation marks omitted.) Tedesco v. Stamford, supra, 215 Conn. 457-58.

The defendant commission was not prejudiced by the plaintiffs failure to allege in his complaint that the disputed regulation caused the plaintiff to be uncertain as to his rights as an owner of potentially subdividable property. The plaintiff attempted to litigate the same issue in the previous action, and the Supreme Court stated that the plaintiffs in that case “should have brought a declaratory judgment action” to challenge “the facial invalidity of the regulation.” Bombero v. Planning & Zoning Commission, supra, 218 Conn. 745-46. Upon review of the entire record, including the testimonial evidence, it is clear that the crux of the plaintiffs claim is that he has been adversely affected because of that uncertainty. Unlike our conclusion in ASL Associates v. Zoning Commission, supra, 18 Conn. App. 542, which was before us pursuant to stipulation of the parties, in the present case we conclude that there was sufficient testimony before the trial court to evidence the plaintiffs uncertainty as to his rights as an owner of property that has the potential for subdivision.

The trial court found that the plaintiff was unable to allege or prove any adverse impact on his property from the adoption of the regulation because “[h]e has not applied to subdivide the property nor has he expressed any intention ever to do so.” The fact that the plaintiff has not applied to subdivide his property is not determinative of whether the plaintiff has been adversely affected by the adoption of the regulation. Here, the plaintiff argues that he has been adversely affected by the adoption of the regulation because it is unconstitutionally vague and ambiguous. As a result, the plaintiff claims that he is uncertain whether he is able to subdivide his property in accordance with the provisions of the regulation. As an owner of property that has the potential for subdivision, the plaintiff is entitled to be able to ascertain with reasonable certainty the validity of the adopted regulation and its affect on his rights as a property owner. While the plaintiffs pleadings “for a declaratory judgment lack the clarity of specific statement which is desirable where such a judgment is sought, they suffice to warrant our passing upon the fundamental and controlling inquiry . . . .” Bania v. New Hartford, supra, 138 Conn. 175-76.

We note that title 22a of the General Statutes, entitled “Environmental Protection,” confers standing on private persons to bring actions to protect the environment. Belford v. New Haven, 170 Conn. 46, 53-54, 364 A.2d 194 (1975). Any member of the general public can initiate an independent declaratory judgment action under General Statutes § 22a-16 in order to raise issues involving the public trust in air, water, or other natural resources of the state. Pursuant to General Statutes § 22a-19 (a), a member of the general public may intervene in an existing judicial review of an agency action. Connecticut Water Co. v. Beausoleil, 204 Conn. 38, 44-45, 526 A.2d 1329 (1987). The plaintiff has not claimed any right to a declaratory judgment arising from our environmental protection statutes. His claim to a declaratory judgment is based on the probable adverse effect that the regulation will have on his right to subdivide his own land, which is allegedly environmentally sensitive. The right to bring a declaratory judgment action in this case should at least be equivalent to that of a member of the general public who complains of a breach of the public trust in a similar context.

The judgment is reversed and the case is remanded for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       The disputed amendment that was adopted by the defendant planning and zoning commission of the town of Trumbull provides as follows: “Land with existing slopes of more than 25 per cent, or areas which have been designated as inland wetlands, or areas lying within a 100-year flood plain mapped by the Federal Flood Insurance Administration is environmentally sensitive land, and shall be excluded from the minimum lot size or acreage requirements set forth on the schedule in Article III of the Zoning Regulations, to the extent that such environmentally sensitive land exceeds 50 per cent of such parcel.”

       General Statutes § 52-29 (a) provides: “The superior court in any action or proceeding may declare rights and other legal relations on request for such a declaration, whether or not further relief is or could be claimed. The declaration shall have the force of a final judgment.”

       Practice Book § 390 provides: “—Conditions
      “The court will not render declaratory judgments upon the complaint of any person:
      “(a) unless he has an interest, legal or equitable, by reason of danger of loss or of uncertainty as to his rights or other jural relations; or
      “(b) unless there is an actual bona fide and substantial question or issue in dispute or substantial uncertainty of legal relations which requires settlement between the parties; or
      “(c) where the court shall be of the opinion that the parties should be left to seek redress by some other form of procedure; or
      “(d) unless all persons having an interest in the subject matter of the complaint are parties to the action or have reasonable notice thereof.”

       The trial court in Bombero v. Planning & Zoning Commission, supra, 218 Conn. 740, concluded that the plaintiff and others were aggrieved by the passage of the regulation because they owned undeveloped parcels of land in the town that were large enough to be subdivided and that each parcel either contained an area of more than 25 percent slope or an area that had been designated as wetlands on the town’s wetlands map. The finding of aggrievement was not reviewed on appeal although the commission claimed on appeal that the trial court had improperly found aggrievement.

       General Statutes § 22a-16 provides: “The attorney general, any political subdivision of the state, any instrumentality or agency of the state or of a political subdivision thereof, any person, partnership, corporation, association, organization or other legal entity may maintain an action in the superior court for the judicial district wherein the defendant is located, resides or conducts business, except that where the state is the defendant, such action shall be brought in the judicial district of Hartford-New Britain, for declaratory and equitable relief against the state, any political subdivision thereof, any instrumentality or agency of the state or of a political subdivision thereof, anyperson, partnership, corporation, association, organization or other legal entity, acting alone, or in combination with others, for the protection of the public trust in the air, water and other natural resources of the state from unreasonable pollution, impairment or destruction provided no such action shall be maintained against the state for pollution of real property acquired by the state under subsection (e) of section 22a-133m, where the spill or discharge which caused the pollution occurred prior to the acquisition of the property by the state.”

       General Statutes § 22a-19 (a) provides: “In any administrative, licensing or other proceeding, and in any judicial review thereof made available by law, the attorney general, any political subdivision of the state, any instrumentality or agency of the state or of a political subdivision thereof, any person, partnership, corporation, association, organization or other legal entity may intervene as a party on the filing of a verified pleading asserting that the proceeding or action for judicial review involves conduct which has, or which is reasonably likely to have, the effect of unreasonably polluting, impairing or destroying the public trust in the air, water or other natural resources of the state.”