author: Dupont, J.

text:
    Teresa D. M. Deteves v. Dinis C. Deteves
    (2390)
    Hull, Dupont and Borden, Js.
    Argued May 9
    decision released September 18, 1984

      Robert J. Papp, with whom, on the brief, was Warren Miller, for the appellant (plaintiff).

      Nancy O. Dodge, for the appellee (defendant).
   Dupont, J.

In this appeal from the judgment in an action for dissolution of a marriage, the plaintiff claims that the trial court erred in its failure to award her periodic alimony and in its disposition of property incident to that judgment.

The parties, both natives of the Azore Islands, were married in 1971. No children were bom of the marriage. The defendant had lived in the United States some time before the marriage; the plaintiff came to the United States for the marriage, after meeting the defendant in the Azores. The plaintiff does not speak English and her testimony was presented to the court through an interpreter. When the case was tried, the defendant was in the Azores but was represented by counsel.

During the marital years, the plaintiff led an isolated, lonely life. She did not work, was unable to drive because the defendant would not allow her to learn, and her life was largely house-bound. At the time of the trial, the plaintiff was fifty-three years old and suffered from diabetes and respiratory ailments. She had had a gall bladder operation several years earlier and testified that she had obtained medical treatment twice in the six months prior to trial. The trial court in its memorandum of decision stated that “she appeared . . . to be in fairly good health presently.” The defendant was forty-nine years old at the time of the trial.

Prior to the marriage, the plaintiff taught embroidery and sewing in the Azores in what would be the equivalent of a high school in the United States. At the time of the marriage, the defendant owned a three family house. It had no mortgage, and the defendant valued it at $30,000 in his financial affidavit. The parties lived in that house and the defendant collected rent for the remaining two apartments. The husband’s financial affidavit showed a net weekly rental income from the home of $150. During the marriage, the parties purchased ten acres of land in the Azores in their joint names. They also accumulated approximately $39,000 in savings accounts which were held jointly. In 1981, the year in which suit was instituted, the defendant was employed in Connecticut and earned approximately $20,000.

The trial court awarded the plaintiff approximately $21,700 as lump sum alimony, leaving the defendant with the family home, the land in the Azores, and approximately $20,000 in savings. The trial court found that the plaintiff “would be able to get some employment using her skills in embroidery and sewing.” It refused to award the plaintiff any periodic alimony, finding that periodic alimony would be impractical since the husband was in the Azores either temporarily or permanently.

The plaintiff claims that the court’s finding that she was employable is contrary to the evidence, and that the court’s finding that an award of periodic alimony would be impractical is unsupported by any evidence at all.

The financial awards of a trial court in a dissolution action should not ordinarily be disturbed; Anderson v. Anderson, 191 Conn. 46, 57, 463 A.2d 578 (1983); unless the trial court has abused its legal discretion or its findings have no reasonable basis in the facts. McGuinness v. McGuinness, 185 Conn. 7, 13, 440 A.2d 804 (1981). Although a trial court’s orders in matrimonial matters are usually presumed correct because the trial court is in a clearly advantageous position to assess all the circumstances surrounding a dissolution action; Tutalo v. Tutalo, 187 Conn. 249, 251, 445 A.2d 598 (1982); this is one of those rare instances in which the trial court abused its broad discretion by misapplying the law and making crucial findings which were not reasonably supported by the facts. McPhee v. McPhee, 186 Conn. 167, 177, 440 A.2d 274 (1982).

The facts elicited in the plaintiffs testimony depict an individual of plainly questionable employability. The plaintiff is a middle-aged woman who came to this country to get married. At the time of trial, she had not worked in at least ten years, and even that employment was in another culture. At her age, and given her health problems and her level of job experience, her prospects for employment would not be impressive even were she a native born American without language difficulties. This is a situation where rehabilitative or time limited alimony, at the very least, would appear appropriate. The policy underlying the concept of time limited alimony is that “such awards may provide an incentive for the spouse receiving support to use diligence in procuring training or skills necessary to attain self-sufficiency.” Markarian v. Markarian, 2 Conn. App. 14, 16, 475 A.2d 337 (1984).

Given the plaintiffs age and her meagre marketable skills on the American labor market, it is likely that upon the exhaustion of the lump sum alimony awarded to her, the state will eventually have to assume the burden of her support. This would be at odds with the very concept of alimony. Alimony is based upon the continuing duty of one divorced spouse to support the other who, in legal contemplation, has been abandoned. Shrager v. Shrager, 144 Conn. 483, 487, 134 A.2d 69 (1957). “[Our law] defines that duty in terms of money, or property, and decrees specific performance of it; and the State itself has a social and financial interest in the performance of that duty.” Wright v. Wright, 93 Conn. 296, 300-301, 105 A. 684 (1919).

The trial court concluded that it would be impractical to order any periodic alimony. The transcript reveals no evidence of whether such an award would be ineffec.tual. In fact, the evidence is to the contrary. The defendant owned income-producing real estate in Connecticut, had worked in Connecticut, and may have only left this country temporarily. The defendant’s property, even if the defendant had no income-producing employment, would provide a res for the payment of periodic alimony.

The function of appellate review is to decide whether the decision of the trial court was “ ‘clearly erroneous in view of the evidence and pleadings in the whole record’; Practice Book § 3060D . . . and ‘where the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence . . . .’ Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221, 435 A.2d 24 (1980).” Gallo v. Gallo, 184 Conn. 36, 38, 440 A.2d 782 (1981). The facts in the trial court’s memorandum of decision in connection with the plaintiff’s employability and the reason for the failure to award periodic alimony are not supported by the evidence. Although awards of alimony are rarely disturbed upon appellate review, “this practice does not establish the proposition that such an award should never be disturbed, but rather that it should be disturbed only under the clearest circumstances.” Ehrenkranz v. Ehrenkranz, 2 Conn. App. 416, 421, 479 A.2d 826 (1984), quoting Shrager v. Shrager, supra, 487; see Jackson v. Jackson, 2 Conn. App. 179, 478 A.2d 1026 (1984).

The facts of this case did not establish the present employability of the plaintiff nor did they establish that the payment or collection of periodic alimony was not feasible. General Statutes § 46b-82 provides the criteria to be considered by the trial court for alimony awards. The impracticability of the collection of alimony is not one of the standards of that section.

There is error, the judgment is set aside as to alimony and the division of property and the case is remanded for a rehearing on the questions of alimony and division of property in accordance with this opinion.

In this opinion the other judges concurred.

       This appeal, originally filed in the Supreme Court, was transferred to this court. Public Acts, Spec. Sess., June, 1983, No. 83-29, § 2 (c).

       Another issue, whether the court could award the defendant an interest in assets which he did not seek in his cross complaint, was not briefed by the plaintiff and is deemed abandoned. State v. Samaha, 180 Conn. 565, 565 n.1, 430 A.2d 1290 (1980).


source: Caselaw Access Project

author: Spallone, J.

license: Public Domain

text:
    Samuel Edelson et al. v. Zoning Commission of the Town of Berlin et al.
    (2093)
    Hull, Borden and Spallone, Js.
    Argued June 12
    decision released September 18, 1984

      Thomas P. Byrne, for the appellants (plaintiffs).

      Lawrence J. Fagan, with whom, on the brief, was Harry J. Jackaway, for the appellees (defendants).
   Spallone, J.

The plaintiffs appeal to this court from the trial court’s dismissal of their appeal from the defendant Berlin zoning commission’s granting of an application to amend the Berlin zoning regulations.

The defendants Richard and Janice Zaccardo are lessees of the restaurant at the clubhouse of the Timberlin Golf Course, a municipally-owned golf course in Berlin. The Zaccardos applied to the defendant commission for an amendment to the zoning regulations which would allow them to sell any alcoholic beverages at the clubhouse, rather than beer only. The commission granted the application and amended § 11.04.07 of the Berlin zoning regulations to read as follows: “The Zoning Board of Appeals may grant a permit with such restrictions as it may impose for the sale of alcoholic beverages in the Clubhouse of any golf course owned by the Town of Berlin.”

The plaintiffs, who are resident taxpayers of the town of Berlin, appealed from the adoption of that amendment. In dismissing the appeal, the trial court found that the plaintiffs were not aggrieved because the appeal was from the action of a zoning commission, rather than from a zoning board of appeals, and because the action merely broadened a permitted use. It nevertheless addressed all of the claims of law which the plaintiffs raised.

On appeal from the judgment of dismissal, the plaintiffs’ initial argument is that the trial court erred in concluding that they were not aggrieved. General Statutes § 8-10 provides that “[t]he provisions of sections 8-8 and 8-9 shall apply to appeals from zoning boards of appeals, zoning commissions or other final zoning authority of any municipality whether or not such municipality has adopted the provisions of [chapter 124 of the General Statutes] and whether or not the charter of such municipality or the special act establishing zoning in such municipality contains a provision giving a right of appeal from zoning boards of appeals or zoning commissions and any provision of any special act, inconsistent with the provisions of said sections, is repealed.” The clear intention of the legislature in enacting § 8-10 was to create a uniform right of appeal from every zoning board of appeal, zoning commission, planning and zoning commission, or other final zoning authority of every municipality in the state, regardless of whether the commission was acting under the general enabling act or under the provisions of a special act. Conto v. Zoning Commission, 186 Conn. 106, 116, 439 A.2d 441 (1982); Weigel v. Planning & Zoning Commission, 160 Conn. 239, 249, 278 A.2d 766 (1971).

In cases involving the sale of alcoholic beverages, the Supreme Court has held that the status of the appellants as taxpayers in the community entitled them to prosecute an appeal. Dolan v. Zoning Board of Appeals, 156 Conn. 426, 428, 242 A.2d 713 (1968); M. & R. Enterprises, Inc. v. Zoning Board of Appeals, 155 Conn. 280, 281-82, 231 A.2d 272 (1967); Cowles v. Zoning Board of Appeals, 153 Conn. 116, 117, 214 A.2d 361 (1965); see Hartford Distributors, Inc. v. Liquor Control Commission, 177 Conn. 616, 621 n.2, 419 A.2d 346 (1979). When traffic in liquor is involved, a resident taxpayer of a town is, a priori, an aggrieved person with standing to prosecute an appeal; he need not show that he has an interest peculiar to himself. Cowles v. Zoning Board of Appeals, supra; O’Connor v. Board of Appeals, 140 Conn. 65, 72, 98 A.2d 515 (1953). Accordingly, we hold that the trial court erred in failing to find that the plaintiffs were aggrieved for the purpose of the underlying appeal.

The plaintiffs also claim that the trial court erred in concluding that the commission was not required by General Statutes § 8-3b to refer the proposed amendment to the central Connecticut regional planning agency. Section 8-3b provides, in pertinent part, as follows: “When the zoning commission of any municipality proposes to establish or change a zone or any regulation affecting the use of a zone any portion of which is within five hundred feet of the boundary of another municipality located within the area of operation of a regional planning agency, the zoning commission shall give written notice of its proposal to such regional planning agency not later than thirty-five days before the public hearing to be held in relation thereto.” The commission admits that Rocky Hill, New Britain and Berlin are located within the area of operation of the central Connecticut regional planning agency. It also admits that the proposed amendment was not referred to that agency within the time period set forth in § 8-3b.

While the clubhouse at the Timberlin Golf Course is more than five hundred feet from a town boundary, a portion of the golf course lies within that distance. The commission argues that because the use permitted by the amendment is limited to the clubhouse, the amendment does not affect the use of a zone “any portion of which is within five hundred feet of the boundary of another municipality.” We disagree. Although the clubhouse is the specific site at which liquor would be served, the clubhouse is situated on the golf course which, in turn, is located in a residential zone. Section 4.11 of the Berlin Zoning Regulations permits golf courses in all residential zones. The amendment consequently affects the use of all residential zones in Berlin, some of which may lie within five hundred feet of another municipality. There is no way to confine the contemplated use to a given area of a zone; an amendment to the regulations concerning the use of a zone affects the entire zone.

The notice required by § 8-3b applies to any change of a regulation affecting the use of a zone, any portion of which is within five hundred feet of another municipality. Courts must interpret the statutes as they are written; Muha v. United Oil Co., 180 Conn. 720, 730, 433 A.2d 1009 (1980); and cannot, by construction, read into them provisions which are not clearly stated. Thornton Real Estate, Inc. v. Lobdell, 184 Conn. 228, 230, 439 A.2d 946 (1981); Houston v. Warden, 169 Conn. 247, 251, 363 A.2d 121 (1975). It is a cardinal rule of construction that statutes are to be construed so that they can carry out the intent of the legislature. This intent is to be ascertained from the language of the statute itself where the language is plain and unambiguous. Grievance Committee v. Trantolo, 192 Conn. 15, 22, 470 A.2d 228 (1984); Hurlbut v. Lemelin, 155 Conn. 68, 73, 230 A.2d 36 (1967).

Section 8-3b establishes the requirement that written notice be given to the regional planning agency. Compliance with statutory provisions as to notice is a prerequisite to any valid and effective action by an administrative tribunal. Brazo v. Real Estate Commission, 177 Conn. 515, 518, 418 A.2d 883 (1979); Mauriello v. Board of Education, 176 Conn. 466, 471, 408 A.2d 247 (1979). The failure to give notice constitutes a jurisdictional defect. Brazo v. Real Estate Commission, supra; Hutchison v. Board of Zoning Appeals, 138 Conn. 247, 251, 83 A.2d 201 (1951). The commission, having failed to provide the statutorily mandated notice, was without jurisdiction to take any action on the Zaccardos’ application. We thus conclude that the court erred in finding that the commission was not required to provide the central Connecticut regional planning agency with notice of the proposed amendment.

The plaintiffs’ contention that the court erred in its finding that the commission stated adequate reasons for the record is without merit. Their additional arguments raising various constitutional claims need not be addressed. Constitutional issues are not considered unless absolutely necessary to the decision of the case. State v. Onofrio, 179 Conn. 23, 38, 425 A.2d 560 (1979).

There is error, the judgment is set aside and the case remanded with direction to render judgment sustaining the plaintiffs’ appeal.

In this opinion the other judges concurred.

       This appeal was originally filed in the Appellate Session of the Superior Court. Public Acts, Spec. Sess., June, 1983, No. 83-29, § 3 (c).

       General Statutes § 8-8 permits appeals from any decision of a zoning board of appeals and sets forth the applicable appellate procedure. Section 8-9 authorizes appeals from zoning commissions and planning and zoning commissions.


author: Per Curiam.

text:
    Randall Meredith v. Police Commission of the Town of New Canaan et al.
    (2452)
    Dannehy, C.P.J., Dupont and Borden, Js.
    Argued April 5
    decision released September 18, 1984

      Stephen A. Wise, with whom was Robert P. Layton, for the appellant (plaintiff).

      Frank W. Murphy, for the appellees (named defendant et al.).

      Michael C. Sohon, with whom, on the brief, were James F. Bingham and Paul D. Shapero, for the appellee (defendant William Ferri).
   Per Curiam.

This appeal arises from an action seeking a writ of mandamus to compel the defendants, the police commission and the police trial board of the town of New Canaan, to hold a public hearing to reconsider charges brought against a third defendant, a police officer of the town. The trial court held that mandamus should not issue because the plaintiff had failed to exhaust his administrative remedies.

The facts are not in dispute. The police chief of the town referred to the police commission a complaint that the plaintiff had been struck unnecessarily by a police officer while in custody. The commission convened a police trial board (hereinafter the board) in order to consider those charges. The officer was informed that the hearing would be in executive session unless he requested otherwise, which he did not. No vote was taken pursuant to the Freedom of Information Act; General Statutes §§ 1-21 through l-21k; which sets forth the requirements for considering a matter in executive session. The plaintiff requested admission to the proceeding which was denied, although he did appear before the trial board as a witness. After the hearing, the board dismissed the charges against the officer. Thereafter, the plaintiff appealed to the freedom of information commission (hereinafter FOIC) seeking a release of the transcript of the hearing and an order compelling a public hearing. FOIC ordered the board to release the transcript to the plaintiff, but denied the request for a public hearing. The plaintiff then requested that the board reopen the proceeding which it refused to do. Subsequently, the plaintiff instituted the present action for mandamus. He did not appeal to the Superior Court from the FOIC’s denial of his request for a public hearing or to the FOIC from the board’s refusal to reopen the matter.

The issuance of mandamus is only proper if three conditions have been met. The plaintiff must show that a clear legal right existed for the performance of a duty owed by the defendant, that the defendant had no discretion regarding the performance of that duty and that the plaintiff had no adequate remedy at law. Vartuli v. Sotire, 192 Conn. 353, 365, 472 A.2d 336 (1984).

It is the contention of the plaintiff that he is not precluded from seeking a writ of mandamus for failure to exhaust his administrative remedies because to seek such remedies would be futile. In support of the trial court’s ruling, the defendants argue that the plaintiff failed to exhaust his administrative remedies. They also maintain that the trial court’s conclusion is supported by alternate grounds. Practice Book § 3012 (a). These grounds are that the plaintiff lacks standing, that he seeks to compel the performance of a discretionary duty, and that the board hearing was an executive session, exempt from the requirements of General Statutes § 1-21. In view of this court’s decision, these grounds need not be considered.

The question of whether the plaintiff failed to exhaust his administrative remedies was brought to the attention of the parties in Meredith v. Police Commission, 182 Conn. 138, 141 n.2, 438 A.2d 27 (1980). The Supreme Court in that footnote opined that mandamus might be inappropriate since it “appears that the plaintiff failed to appeal to the freedom of information commission, which in ordinary circumstances is the normal legal remedy for being wrongfully excluded from a public meeting. See General Statutes § l-21i (b).”

The plaintiff relies on the cases of Bahramian v. Papandrea, 184 Conn. 1, 5, 440 A.2d 777 (1981), and State ex rel. Foote v. Bartholomew, 103 Conn. 607, 618-19, 132 A. 30 (1925), for the proposition that he need not exhaust administrative remedies when to do so would be to no avail. His primary authority for that proposition, Bahramian v. Papandrea, supra, 5 n.3, considered whether an equitable remedy could be bypassed, rather than a remedy at law. The plaintiff here had a remedy at law. General Statutes § l-21i.

The plaintiffs remedy at law has not been shown to be either inadequate or an exercise in futility. His belief that recourse to an available statutory remedy would be ineffectual is speculative. Harwinton Drilling & Engineering Co. v. Public Utilities Control Authority, 188 Conn. 90, 97, 448 A.2d 210 (1982). The plaintiffs claim that an appeal to the FOIC from the board’s refusal to reopen the hearing would be ineffective is based on the testimony of the general counsel for the FOIC that, in his opinion, the FOIC had no authority to order a public hearing. General Statutes § l-21i (b), however, provides that the FOIC may order such relief as it deems appropriate to rectify the wrongful denial of the right to attend any meeting of a public agency. An appeal to the Superior Court as provided in General Statutes § l-21i (c) was the route to test whether the FOIC acted erroneously in failing to order a public hearing. An appeal to the FOIC from the board’s failure to reopen the proceeding, and then an appeal to the Superior Court, had the FOIC persisted in its denial of an order requiring a public hearing, was an alternate route available to the plaintiff. The discretionary rulings of administrative boards are subject to the scrutiny of the courts for a review of whether an abuse of discretion has occurred. Real Estate Listing Service, Inc. v. Real Estate Commission, 179 Conn. 128, 138, 425 A.2d 581 (1979); Board of Alderman v. Bridgeport Community Antennae Television Co., 168 Conn. 294, 297, 362 A.2d 529 (1975).

It is hornbook law that “it is for courts, and not the administrative agencies, to expound and apply governing principles of law. ’’Real Estate Listing Service, Inc. v. Real Estate Commission, supra; NLRB v. Brown, 380 U.S. 278, 291, 85 S. Ct. 980, 13 L. Ed. 2d 839 (1965); International Brotherhood of Electrical Workers v. NLRB, 487 F.2d 1143, 1170-71 (D.C. Cir. 1973), aff'd sub nom. Florida Power & Light Co. v. International Brotherhood of Electrical Workers, 417 U.S. 790, 94 S. Ct. 2737, 41 L. Ed. 2d 477 (1974); 73 C.J.S., Public Administrative Law and Procedure § 69. The question which would have been before the court on appeal from the agency decision is a question of law.

It is well settled that a writ of mandamus is an extraordinary remedy; McAllister v. Nichols, 193 Conn. 168, 171, 474 A.2d 792 (1984); and is “ ‘to be applied only under exceptional conditions, and is not to be extended beyond its well-established limits.’ ” Light v. Board of Education, 170 Conn. 35, 37, 364 A.2d 229 (1975); Milford Education Assn. v. Board of Education, 167 Conn. 513, 518, 356 A.2d 109 (1975). Mandamus is to issue only where there is no adequate remedy at law. Vartuli v. Sotire, supra; Light v. Board of Education, supra, 37-38; Milford Education Assn. v. Board of Education, supra, 519. The plaintiff here had an adequate remedy at law by way of appeal to the Superior Court but failed to exercise that remedy.

There is no error.

       This appeal, originally filed in the Supreme Court, was transferred to this court. Public Acts, Spec. Sess., June, 1983, No. 83-29, § 2 (c).

       The police trial board is composed of all of the members of the police commission. The police officer was joined as a necessary party after the Supreme Court vacated a previous decision of the trial court, Saden, J., to strike the plaintiffs complaint. Meredith v. Police Commission, 182 Conn. 138, 438 A.2d 27 (1980).

       The existence of an available administrative remedy is ordinarily equivalent to the existence of an adequate remedy at law. See Vartuli v. Sotire, 192 Conn. 353, 366, 472 A.2d 336 (1984).

       General Statutes § 1-21 provides in pertinent part: “The meetings of all public agencies, except executive sessions as defined in subsection (e) of section l-18a, shall be open to the public. ... A public agency may hold an executive session as defined in subsection (e) of section l-18a, upon an affirmative vote of two-thirds of the members of such body present and voting, taken at a public meeting and stating the reasons for such executive session, as defined in said section.”
      General Statutes § l-18a (e) provides in pertinent part: “ ‘Executive sessions’ means a meeting of a public agency at which the public is excluded for one or more of the following purposes: (1) Discussion concerning the appointment, employment, performance, evaluation, health or dismissal of a public officer or employee, provided that such individual may require that discussion be held at an open meeting . . . .”

       “[General Statutes] Sec. l-21i. denial of access to public records or meetings, appeals, notice, orders, civil penalty, service of process upon commission. . . . “(b) Any person denied the right to inspect or copy records under section 1-19 or wrongfully denied the right to attend any meeting of a public agency or denied any other right conferred by sections 1-15, l-18a, 1-19 to l-19b, inclusive, and 1-21 to l-21k, inclusive, may appeal therefrom, within thirty days, to the freedom of information commission, by filing a notice of appeal with said commission. . . . Said commission shall, within twenty days after receipt of the notice of appeal, hear such appeal after due notice to the parties and shall decide the appeal within thirty days after such hearing, by confirming the action of the agency or ordering the agency to comply with such relief as the commission, in its sound discretion, believes appropriate to rectify the denial of any right conferred by said sections. Such order may declare any or all actions taken at any meeting to which such person was denied the right to attend null and void and may require the production or copying of any public record. . . .
      “(c) Any party aggrieved by the decision of said commission may appeal therefrom, in accordance with the provisions of section 4-183. . . .”


author: Borden, J.

text:
    State of Connecticut v. Alan H. Martin
    (2676)
    Dannehy, C.P.J., Dupont and Borden, Js.

      Argued May 3—decision released September 18—upon reconsideration,
    affirmed November 19, 1984

      Richard D. Arconti, assistant state’s attorney, for the appellant (state).

      Emanuel Margolis, with whom were Judith Rosenberg and, on the brief, Tracy A. Saxe, for the appellee (defendant).
   Borden, J.

This is an appeal by the state taken with the permission of the trial court, pursuant to General Statutes § 54-96 and Practice Book § 819, from the judgment of the court dismissing the information with prejudice, following the granting of the defendant’s motion to suppress. We find no error.

The defendant was charged in an information with illegal possession of a narcotic substance in violation of then General Statutes (Rev. to 1981) § 19-481 (a), now General Statutes § 21a-279 (a), and with illegal possession of a controlled substance in violation of then General Statutes (Rev. to 1981) § 19-481 (c), now General Statutes § 21a-279 (c). He moved to suppress certain substances which the state claimed were cocaine and methaqualone and which had been seized from his car after a warrantless search.

In a comprehensive memorandum of decision, the trial court found the following facts. On August 26, 1981, at approximately 10:30 p.m., Lieutenant Dennis Cooney, the desk officer of the Danbury police department, answered a telephone call and was told by the caller that “there is a blue Corvette out-of-state plate that will be going to the Foundry in about twenty minutes to deal in a large amount of cocaine.” The caller, whose voice was unknown to Cooney, did not identify himself. Cooney put out a radio call requesting Detective John Merullo to telephone him.

Merullo had been a member of the Danbury police department for thirteen and one-half years, had worked with the special investigative unit (SIU) of the department involved in narcotics investigations, and had been assigned for the past year to the statewide narcotics task force. Merullo telephoned Cooney from a telephone located at the rear of the headquarters. Cooney told him of the caller’s message. Merullo, accompanied by Detective William Hull, used his personal vehicle to drive to the Foundry Cafe, which took about five minutes. Upon arriving, Merullo checked the parking lot for a blue Corvette and found none. He parked his vehicle so that he could observe the cafe and the entrance to the parking lot.

Approximately ten minutes later, he saw a blue Corvette with New Hampshire license plates enter the lot and park near two flood lights which were attached to the cafe building and which were about ten feet from a covered walkway. The walkway was the entrance to the cafe and to stores located on the second floor. The area in which the Corvette was parked was well lit. Merullo telephoned the department to check the ownership of the Corvette and to determine if there were any outstanding warrants on it. He also asked Cooney to contact Sargeant James McNamara and Detective Harold Chapman of SIU.

Merullo saw two people leave the Corvette: the operator, a tall white male, later identified as the defendant, and the passenger, a tall white blonde female. They both entered the covered walkway. Merullo assumed they were going to the cafe. Fifteen minutes later the defendant left the walkway accompanied by another male, and they both entered the Corvette. Merullo recognized the other male as Dominic Cristello. At that point there was nothing suspicious about their behavior. The Corvette had tinted windows which prohibited seeing into its interior. A few minutes later, the Corvette was driven to another area where it parked. This was an unlighted area, and Merullo had to move his vehicle in order to keep the Corvette in view. Merullo did not know the operator of the Corvette but he knew, from conversations that he had had with fellow police officers discussing the cafe and drug traffic and from having reviewed Cristello’s police file, that Cristello frequented the cafe and had been convicted of a drug charge eight years before.

McNamara and Chapman arrived. Merullo explained everything that had occurred up to the time of their arrival. He told McNamara that he believed that he had probable cause to search the Corvette, and that he intended to do so. It was agreed that McNamara would drive his vehicle to the area where the Corvette was parked. Merullo drove his vehicle and parked directly behind the Corvette; McNamara stopped his vehicle in front of the Corvette so that it was boxed in. Merullo immediately left his vehicle and went to the Corvette to search it. He approached the operator’s side, badge in hand, and identified himself as a police officer. He requested that the window be rolled down and it was rolled down partially. He asked the operator, who was the defendant, for his license and registration. Because he could not see into the vehicle due to the tinted glass, for his own protection he opened the door of the Corvette. Upon his doing so, the interior light went on. Merullo stood by the door and saw the defendant trying to find his registration. He also saw the defendant putting a small amber bottle and a small spoon on the floor between his legs. Merullo knew that such a bottle and spoon were commonly used for carrying and snorting cocaine. Merullo told the defendant that he was under arrest. The officers searched the Corvette for five minutes, and found in the back an overnight bag containing a plastic bag of cocaine and a paper bag containing money.

The court specifically found that Merullo’s approach to the Corvette was not for purposes of investigation but was for the purpose for searching the vehicle; that the defendant was seized, within the meaning of the fourth and fourteenth amendments to the United States constitution, when the police boxed in the Corvette and approached it with the intent to search it; and that the request for the defendant’s license and registration was pretextual.

The memorandum of decision of the trial court, which was filed on June 1,1983, analyzed the search and seizure here under the then familiar principles of Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969), and Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964). Those principles had been understood to require a reviewing court to gauge the reliability of information given by an informant according to a two-pronged test analyzing (1) the basis of the informant’s knowledge—the means by which he acquired his information, and (2) the underlying facts establishing either his general veracity or his reliability in the particular case. See Illinois v. Gates, 462 U.S. 213, 229-30, 103 S. Ct. 2317, 76 L. Ed. 2d 527, reh. denied, 463 U.S. 1237, 104 S. Ct. 33, 77 L. Ed. 2d 1453 (1983). Beginning with this analysis, which was the proper starting point at that time, the court concluded that the informant’s tip was unreliable and “therefore [was] to be treated as if it never existed,” and further concluded that the seizure was without probable cause. The court granted the motion to suppress the items seized from the Corvette, namely the amber bottle and its contents, the spoon, the overnight bag and its contents, and the paper bag and its contents.

On June 8, 1983, the United States Supreme Court decided Illinois v. Gates, supra, in which it abandoned the Aguilar-Spinelli test in favor of a determination of probable cause based on the totality of the circumstances. Both parties to this appeal agree, as do we, that the test of Illinois v. Gates, supra, must be applied to the facts of this case.

We believe that the trial court went too far in saying that it must completely disregard the anonymous tip. The fact of the tip, the degree to which it contained details and the degree to which those details were corroborated were part of the totality of the circumstances test which a court must use in passing on a claim of probable cause. Id., 230. “While a conscientious assessment of the basis for crediting such tips is required by the Fourth Amendment, a standard that leaves virtually no place for anonymous citizen informants is not.” Id., 238. Applying the totality of the circumstances test here, we conclude nonetheless that the trial court was correct in granting the motion to suppress.

The court found that the defendant was “seized,” in constitutional parlance, when the officers boxed in the Corvette with their vehicles and approached it with the intent to search. A person is seized when, “in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” State v. Ostroski, 186 Conn. 287, 291-92, 440 A.2d 984, cert. denied, 459 U.S. 878, 103 S. Ct. 173, 74 L. Ed. 2d 142 (1982), quoting United States v. Mendenhall, 446 U.S. 544, 553-54, 100 S. Ct. 1870, 64 L. Ed. 2d 497, reh. denied, 448 U.S. 908, 100 S. Ct. 3051, 65 L. Ed. 2d 1138 (1980); Florida v. Royer, 460 U.S. 491, 501-502, 103 S. Ct. 1319, 75 L. Ed. 2d 229 (1983). “Whether there has been such a seizure in an individual case is a question of fact.” State v. Ostroski, supra, 292. “[Shopping an automobile and detaining its occupants constitute a ‘seizure’ within the meaning of [the fourth and fourteenth] Amendments, even though the purpose of the stop is limited and the resulting detention quite brief.” Delaware v. Prouse, 440 U.S. 648, 653, 99 S. Ct. 1391, 59 L. Ed. 2d 660 (1979). The court was correct in its factual determination of when the defendant was seized.

It is true that under some circumstances a seizure of an automobile and its occupants may permissibly take place on less than probable cause, such as when there is an investigative stop based on reasonable and articulable suspicion. See, e.g., Delaware v. Prouse, supra; State v. Januszewski, 182 Conn. 142, 438 A.2d 679 (1980), cert. denied, 453 U.S. 922, 101 S. Ct. 3159, 69 L. Ed. 2d 1005 (1981). It is also true that, ordinarily, the test for determining whether such a seizure should be measured by probable cause or by the less exacting standard of reasonable suspicion is objective, not subjective. See State v. Januszewski, supra. That is, the court should, in evaluating a search and seizure, look not to the subjective state of mind of the officer performing the search and seizure but to whether “the circumstances, viewed objectively, justify that action.” Scott v. United States, 436 U.S. 128, 138, 98 S. Ct. 1717, 56 L. Ed. 2d 168 (1978); United States v. Robinson, 414 U.S. 218, 236, 94 S. Ct. 467, 38 L. Ed. 2d 427 (1973); 1 LaFave, Search and Seizure § 3.2 (b).

Here, however, the state did not seek in the trial court to justify this warrantless seizure on the basis that, objectively viewed, it was an investigative stop to be measured by reasonable and articulable suspicion. It did not claim reliance on either the applicability of an objective standard or the existence of facts meeting that standard. Instead, it sought to persuade the court that probable cause existed. Similarly, in this court, both its brief and its oral argument were based on the proposition that the activity of the police constituted a full-scale fourth amendment seizure requiring probable cause. It was not until our original decision was released that the state, by a motion for reargument, for the first time, raised the claim that we review the seizure by the standard of reasonable and articulable suspicion.

For several reasons, we decline to disturb our original decision and to reanalyze the case on the basis of the state’s belated claim. First, the state did not follow the mandate of Practice Book § 285A to state this claim of law distinctly to the trial court. Thus, the trial court was not alerted to the opportunity to make additional factual findings which might have been relevant to the claim, and we were thus deprived of those findings and of a reasoned analysis of them by the trial court. See Barrett v. Central Vermont Railway, Inc., 2 Conn. App. 530, 537, 480 A.2d 589 (1984). Second, the state did not follow the mandate of Practice Book § 3012, that this issue on appeal be indicated in its preliminary statement of issues, or of Practice Book § 3060F, that its brief concisely set forth this issue. See Zoning Board of Appeals v. Bemis, 2 Conn. App. 278, 477 A.2d 170 (1984). Third, whether there was, in any given set of circumstances, a reasonable and articulable suspicion is in the first instance a question of fact for the trial court; see State v. Ostroski, 186 Conn. 287, 292, 440 A.2d 984, cert. denied, 459 U.S. 878, 103 S. Ct. 173, 74 L. Ed. 2d 142 (1982); subject ordinarily to a limited scope of appellate review. State v. Zindros, 189 Conn. 228, 456 A.2d 288 (1983), cert. denied, 465 U.S. 1012, 104 S. Ct. 1014, 79 L. Ed. 2d 244 (1984). Thus, it is particularly inappropriate for us to make such a determination after full briefing and argument which ignored that issue.

The rule that claims on appeal should first be made at trial “ ‘applies to criminal as well as civil cases.’ ” State v. Johnson, 166 Conn. 439, 445, 352 A.2d 294 (1974). That rule applies to the state as well as to the defendant. We therefore decide this case on the theory on which it was tried and decided in the trial court, and briefed and argued in this court. Beckenstein v. Potter & Carrier, Inc., 191 Conn. 120, 132, 464 A.2d 6 (1983). That theory is that the seizure must have been based on probable cause in order to be valid.

Although Illinois v. Gates, supra, involved a search and seizure pursuant to a warrant, as did Aguilar and Spinelli, the same standards of probable cause apply to a warrantless search and seizure. See, e.g., United States v. Smith, 598 F.2d 936, 937 n.2 (5th Cir. 1979). Probable cause deals “ ‘with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.’ ” Illinois v. Gates, supra, 231. “Probable cause means more than mere suspicion. There must be facts and circumstances within the officer’s knowledge, and of which he has trustworthy information, sufficient to justify the belief of a reasonable person that an offense has been or is being committed. . . . There is often a fine line between mere suspicion and probable cause, and ‘[tjhat line necessarily must be drawn by an act of judgment formed in the light of the particular situation and with account taken of all the circumstances.’ ” State v. Penland, 174 Conn. 153, 155-56, 384 A.2d 356, cert. denied, 436 U.S. 906, 98 S. Ct. 2237, 56 L. Ed. 2d 404 (1978). In the context of a search, there must be probable cause to believe that the material to be seized is connected with criminal activity or will assist in a particular apprehension or conviction, and that the material will be found in the place to be searched. State v. DeChamplain, 179 Conn. 522, 528-29, 427 A.2d 1338 (1980). Of particular significance here is the reminder of the United States Supreme Court: “ ‘The process [of determining probable cause] does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common-sense conclusions about human behavior; jurors as factfinders are permitted to do the same—and so are law enforcement officers. Finally, the evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.” Illinois v. Gates, supra, 231-32, quoting United States v. Cortez, 449 U.S. 411, 418, 101 S. Ct. 690, 66 L. Ed. 2d 621 (1981).

Applying this test to the seizure which occurred here, we conclude that it was based on less than probable cause. While the informant’s tip was a permissible starting point, it lacks sufficient detail and it was not followed by sufficient corroborative behavior to raise the totality of the circumstances from the level of suspicion to the level of probable cause. Cf. Illinois v. Gates, supra.

The state seeks to support this search by pointing to certain circumstances concerning which Merullo testified, but which the court did not find as facts. This evidence is that Cristello was known as a narcotics user and dealer; that the police were aware of ongoing drug activity at the cafe; that drug transactions commonly take place in the area of bars and nightclubs; that the dark tinted windows of the Corvette are the type often used in drug transactions; and that the area to which the Corvette was moved was secluded. We need not decide whether this evidence, if credited by the trial court, taken together with the other facts which the court did find, would have supplied a sufficient underpinning for this search. Suffice it to say that the court issued a factually detailed memorandum of decision which did not refer to this evidence. When the court rules on a motion to suppress without detailing the facts supporting its decision, an appellate court may look to the evidence produced in support of the ruling. See, e.g., State v. Jones, 193 Conn. 70, 475 A.2d 1087 (1984). But where, as here, the trial court performs its judicial function conscientiously by detailing the facts which the state has established, we are not free to add facts which are not found and which are not undisputed. See State v. Perez, 181 Conn. 299, 302-303, 435 A.2d 334 (1980). We thus address this search shorn of those “facts” which the state seeks to add.

The state concedes in its brief that the arrival of the Corvette at the predicted time and place was insufficient to establish probable cause. It argues, however, that what took place thereafter supplied sufficient corroboration of the tip to establish probable cause under Illinois v. Gates, supra. We disagree.

We note that although Gates abandoned the rigid Aguilar-Spinelli test to be applied to informer’s tips, it specifically retained the process of examining, in the context of the totality of the circumstances, the “informant’s ‘veracity,’ ‘reliability’ and ‘basis of knowledge’ [as] all highly relevant in determining the value of his report.” Id., 230. We note also that Gates focused its analysis on three basic types of informer’s tips: those from a particular informant known for the reliability of his predictions of certain types of criminality in a certain area; those from an unquestionably honest citizen who comes forward with a report of criminal activity, which, if fabricated, would subject him to criminal liability; and those from an informant who, although his motives may be open to question, supplies an explicit and detailed description of alleged wrongdoing, along with an indication that the event was observed firsthand, thus entitling the tip to greater weight than might otherwise be the case. Id., 233-34.

It is this third type which provides the starting point of our analysis in this case; for, under Gates, where the tip involves a prediction of future activity, it is not necessary that the tipster himself indicate a basis of first-hand knowledge, as long as the detail of the tip indicates a “fair probability” that the information came from the target of the tip or from someone whom the target trusted, and as long as that probability was provided by corroboration of the “major portions” of the tipster’s predictions. Id., 246.

Here, the amount of the detail in the tip, which Merullo’s investigation corroborated, was moderate, to say the most. It amounted to the color and make of an automobile with out-of-state plates, and the estimated time and place of its arrival. Compare, e.g., the amount of detail supplied by the anonymous letter-writer in Illinois v. Gates, supra; and the amount of detail supplied by the known informant in Draper v. United States, 358 U.S. 307, 79 S. Ct. 329, 3 L. Ed. 2d 327 (1959), described by the court in Gates as “the classic case on the value of corroborative efforts of police officials.” Id., 242. What followed the defendant’s arrival at the cafe at the generally predicted time and in a vehicle which fit the general description given in the tip was that the defendant left the vehicle with one person, returned with another who had an eight year old drug conviction, and moved the vehicle from an illuminated area to an unilluminated area. While this activity may well have given Merullo reasonable and articulable suspicion that the predicted drug sale was taking place, and while this is a close case, we cannot say that the amount of the detail originally supplied was enough, and that it was sufficiently corroborated by further detail, so as to establish a fair probability that the anonymous tipster here had obtained his information either from the defendant or from someone whom the defendant trusted. Cf. Illinois v. Gates, supra; Massachusetts v. Upton, supra. We are mindful that “[bjecause an informant is right about some things, he is more probably right about other facts . . . .” Illinois v. Gates, supra, 244, quoting United States v. Spinelli, supra, 427. Unlike Gates, however, in which the anonymous letter “contained a range of details relating not just to easily obtained facts and conditions existing at the time of the tip, but to future actions of third parties ordinarily not easily predicted”; Illinois v. Gates, supra, 245; the nature of the tip and its corroboration here were insufficient to afford “ ‘a substantial basis for crediting the’ ” tip. Id. Thus, we conclude that the search was based on less than probable cause.

There is no error.

In this opinion the other judges concurred.

       This appeal, originally filed in the Supreme Court, was transferred to this court. Public Acts, Spec. Sess., June, 1983, No. 83-29, § 2 (c).

       While this case was on appeal to this court, the United States Supreme Court held that the exclusionary rule, as effected by a motion to suppress such as is involved here, “should be modified so as not to bar the use in the prosecution’s case-in-chief of evidence obtained by officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate but ultimately found to be unsupported by probable cause.” United States v. Leon, 468 U.S. ,104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984); Massachusetts v. Sheppard, 468 U.S. ,104 S. Ct. 3424, 82 L. Ed. 2d 737 (1984). This case involves not a search pursuant to a search warrant but a warrantless search, which neither United States v. Leon, supra, nor Massachusetts v. Sheppard, supra, addresses. Moreover, the state did not claim in the trial court a good faith exception to the exclusionary rule for this warrantless search, as it could have. Cf. United States v. Leon, supra. Thus, there was no occasion for the trial court to make such an initial determination. Nor did the state claim such an exception in this court. Under these circumstances, we decide this case on the basis of what we understand to be the current state of constitutional law, which is that the exclusionary rule applies to warrantless searches.

       The court did not specifically find that the Corvette was owned by the defendant, but our examination of the transcript indicates that it was undisputed that Merullo’s check disclosed that to be the case.

       Subsequently, the United States Supreme Court made it even more clear that in Gates it “did not merely refine or qualify the ‘two-pronged test.’ We rejected it as hypertechnical and divorced from ‘the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.’ . . . Our statement on that score was explicit. ‘[W]e conclude that it is wiser to abandon the “two-pronged test” established by our decisions in Aguilar and Spinelli. In its place we reaffirm the totality of the circumstances analysis that traditionally has informed probable cause determinations.’ ” Massachusetts v. Upton, 466 U.S. 727, 104 S. Ct. 2085, 2087-88, 80 L. Ed. 2d 721 (1984).

       We granted the motion for reargument in part and ordered that supplemental briefs be filed. On November 19,1984, without the necessity of further oral argument, we decided the motion, affirming our initial finding of no error and indicating that we would at a later date issue this revised opinion effective November 19,1984. See Wrinn v. Dunleavy, 186 Conn. 125, 126, 440 A.2d 261 (1982).

       Of course, where the search and seizure are pursuant to a warrant, a more “deferential standard of review is appropriate to further the Fourth Amendment’s strong preference for searches conducted pursuant to a warrant.” Massachusetts v. Upton, 466 U.S. 727, 104 S. Ct. 2085, 2088, 80 L. Ed. 2d 721 (1984); see also State v. Zindros, 189 Conn. 228, 253-54, 456 A.2d 288 (1983), cert. denied, 465 U.S. 1012, 104 S. Ct. 1014, 79 L. Ed. 2d 244 (1984).


text:
    State of Connecticut v. Steve Taxiltaridis
    (2709)
    Dupont, Borden and Spallone, Js.
    Argued June 5
    decision released September 18, 1984

      IraB. Charmoy, with whom, on the brief, was James Nugent, for the appellant (defendant).

      C. Robert Satti, assistant state’s attorney, with whom was Joseph Marcello, assistant state’s attorney, for the appellee (state).
   Per Curiam.

The jury found the defendant guilty of assault in the second degree in violation of General Statutes § 53a-60a, of threatening in violation of General Statutes § 53a-62, and of reckless endangerment in the first degree in violation of General Statutes § 53a-63. From the judgment rendered on the verdict, he has appealed, claiming error in the charge to the jury on the defense of the use of justifiable force and in the trial court’s comments on the evidence. The defendant also claims error in the denial of his motion for a view of the premises.

Despite conflicting testimony, the jury might reasonably have found the following facts: The victim, a former employee of a diner owned by the defendant, loaned the defendant $2000. Sometime thereafter, a dispute arose over the repayment of the loan. The dispute intensified over a period of eighteen months, culminating in the defendant’s summoning of the victim to the diner for a meeting. An altercation arose and in the course of an ensuing physical encounter between the two in the office of the diner, the defendant pointed a gun at the victim, placed the gun in his mouth, and struck him with a fist and with the gun, and threatened to kill him. During the confusion, the gun was discharged and a bullet lodged in the office ceiling. Although the victim received bruises and scratches, there were no other injuries.

The defendant’s first and second claims of error arise from the trial court’s instructions to the jury. The transcript discloses that after the court delivered its charge, the defendant took exception on several grounds including the court's failure to charge on the justifiable use of physical force pursuant to General Statutes §§ 53a-20 and 53a-21 and the court’s comments on the evidence. The court reconvened the jury and gave a supplemental charge. The defendant neither reasserted his objection to the initial charge nor objected to the supplemental charge as insufficient to cure the errors initially claimed. The defendant’s attorney contends that he began to except to the supplemental charge but was cut off in mid-sentence by the trial court. Our review of the transcript reveals that this “exception” did not comply with our rules of practice. Practice Book § 315 states that “ ‘[cjounsel taking the exception shall state distinctly the matter objected to and the ground of the objection.’ ” (Emphasis added.) Giglio v. Hamilton Heights, Inc., 1 Conn. App. 165, 167, 469 A.2d 416 (1984). “The purpose of requiring an attorney to except is not merely formal. An exception serves the important function of alerting the trial court to error while there is time to correct it without ordering a retrial. . . . [T]he defendant’s failure to except to the supplementary charge is not a mechanical barrier to review. Rather, when viewed in the context of defense counsel’s participation in fashioning the supplementary charge, the failure to except supports the trial court’s conclusion that the defendant accepted the supplemented charge as correct.” State v. Jones, 193 Conn. 70, 88-89, 475 A.2d 1087 (1984).

The court “shall not be bound to consider error as to the giving of, or the failure to give, an instruction unless the matter is covered by a written request to charge or an exception has been taken immediately after the charge is delivered by the party appealing.” Practice Book § 854; see also Practice Book §§ 3060F (c) (1) and (2); 3063. Because claims not distinctly raised at trial are considered waived; State v. Miller, 186 Conn. 654, 658, 443 A.2d 906 (1982); State v. Evans, 165 Conn. 61, 65-66, 327 A.2d 576 (1973); such claims will be reviewed on appeal “[ojnly in most exceptional circumstances.” State v. Evans, supra, 69; State v. Fullwood, 193 Conn. 238, 259, 476 A.2d 550 (1984); State v. Gooch, 186 Conn. 17, 18, 438 A.2d 867 (1982); see State v. Packard, 184 Conn. 258, 281, 439 A.2d 983 (1981). Claims of error not brought to the attention of the trial court will be reviewed only if either a new constitutional right not readily foreseeable has arisen between the time of trial and appeal or if the record adequately supports a claim that a litigant has clearly been deprived of a fundamental constitutional right and a fair trial. State v. Evans, supra, 70. The defendant argues that the second exceptional circumstance exists as to both claims of error in the present case.

He contends that the charge on §§ 53a-20 and 53a-21 was contradictory and misleading and so confused the jury as to deprive him of his constitutional right to a fair trial. The court’s instruction as to § 53a-20 closely followed the language of that statute: “A person in possession or control of premises is ‘justified’ in using ‘reasonable’ physical force upon another person when, and to the extent that he ‘reasonably’ believes it is necessary to prevent or terminate a commission or attempted commission of a criminal trespass by such other person in or upon the premises.” The court also tracked the statutory language when it charged on § 53a-21: “A person is ‘justified’ in using ‘reasonable’ physical force upon another when and to the extent he reasonably believes it necessary to prevent an attempt by such other person to commit criminal mischief involving property.” The court further stated that “if you believe that [the victim] meant to do anything to damage the property or if you think that he intended to steal anything, commit a larceny, and that’s covered by that section that I was just reading to you, then Mr. Taxiltaridis would have, depending on the circumstances, whether it was ‘reasonable’ and so forth, as you find. It [sic] might have the defense of ‘justification’ available to him. I would emphasize to you again, that in all of these matters concerning ‘justification,’ self-defense, defense of the person, the property or premises, the word is ‘reasonable.’ ”

In considering a charge, critical dissection is not required. The charge as a whole must be considered from the standpoint of its effect on the jury in guiding them to a proper verdict. State v. Reid, 193 Conn. 646, 660, 480 A.2d 463 (1984). In this case, we find that the court’s instructions, taken as a whole, fairly and adequately presented the case in such a way that injustice was not done to either party under the established rules of law. See State v. Harden, 175 Conn. 315, 322, 398 A.2d 1169 (1978). The defendant’s claim under State v. Evans, supra, is consequently without foundation. “The Evans rule is designed to protect fundamental constitutional rights. It deals with substance, not labels. Putting a constitutional tag on a nonconstitutional claim will no more change its essential character than calling a bull a cow will change its gender. If a word to the wise will do it, then suffice it to observe that the Evans trial court bypass to this court is a narrow constitutional path and not the appellate Champs-Elysees.” State v. Gooch, supra.

The defendant’s second claim of error is that in its charge the trial court commented only on evidence unfavorable to the defendant and failed to comment on evidence unfavorable to the state. As with his objection to the charge on the law, the defendant argues that the court deprived him of his constitutional right to a fair trial. After the defendant excepted to the court’s initial charge, the court reconvened the jury and admonished them to “apply the law as I have given it to you to the facts that you find. That is your job, to find the facts. And again, if I have omitted anything . . . you are the ones who will supply the omission and correct the error.” Again, the defendant, thereafter, neither reasserted his objection to the initial charge nor objected to the supplemental charge.

The Evans bypass, which would allow us to consider the merits of the defendant’s argument where the record adequately supports a claim that a litigant has clearly been deprived of a fundamental right and a fair trial, does not apply to this claim. We have examined the record and find that the court’s review of the evidence was not so unbalanced as to cause such deprivation.

While a trial court is not licensed to engage in an “ 'argumentative presentation of the claims of one side’ ”-,Bruneau v. Quick, 187 Conn. 617, 628, 447 A.2d 742 (1982); the remarks to which the defendant has called our attention do not rise to that level. We find that any misstatements were not significant and were presumptively cured by the court’s admonition that it was the jury’s job to find the facts and supply any omission or correct any error in its charge. State v. Reid, supra, 664.

The defendant’s final claim of error is that the court abused its discretion in denying his motion to allow the jury to view the premises. The apparent purpose of this motion was to test the credibility of the witnesses. A view of the premises will be allowed if the view is “ ‘necessary or important in order to obtain a clearer understanding of the issues and to apply the evidence properly.’ ” (Citations omitted.) O’Connor v. Dory Corporation, 174 Conn. 65, 71, 381 A.2d 559 (1977). This decision rests within the sound discretion of the trial court. Id., 72. In this case, the court found that the diagram to which the defendant had access, in conjunction with the testimony, was sufficient to provide the jurors with a clear picture of the premises. There was nothing in the circumstances surrounding the court’s denial of the motion to indicate an abuse of discretion. LaVoie v. Marshall, 141 Conn. 681, 687, 109 A.2d 508 (1954).

There is no error.

       The defendant’s preliminary statement of issues raises eight claims of error; however, at oral argument the defendant’s counsel withdrew all but the three claims considered by this court.


text:
    Julie Cooper et al. v. Ralph Cavallaro, Executor (Estate of Julia Cavallaro)
    (2387)
    Dannehy, C.P.J., Hull and Dupont, Js.
    Argued June 6
    decision released September 18, 1984

      Roger Sullivan, for the appellants (plaintiffs).

      James O. Shea, for the appellee (defendant).
   Per Curiam.

This appeal involves two cases which were consolidated for trial. Judgment was rendered, in the first case, for the defendant individually, and, in the second, for the defendant in his capacity as executor of the estate of Julia Cavallaro. The parties were in dispute over two joint savings accounts and a mortgage deed and note each held jointly by the defendant and the decedent, with a right of survivorship. The issues are whether the state referee, acting as the trial court, erred (1) in placing the burden of proof on the plaintiffs to establish a constructive trust of the mortgage note and the bank accounts, and (2) in concluding that, under the terms of the will of Julia Cavallaro, a bequest to the plaintiffs was precatory in nature. The plaintiffs also claim that General Statutes § 36-3 is unconstitutional because it violates the separation of powers doctrine.

The testatrix was survived by two sons, one of whom is the defendant, and by a number of grandchildren. The defendant was named in her will as her executor. He filed an inventory and a final accounting in the Probate Court for the district of Branford. Both documents indicated that the estate was devoid of assets since all assets had passed to the defendant by survivorship. The Probate Court approved the final accounting and the plaintiffs appealed to the Superior Court. The plaintiffs also instituted an equitable action against the defendant individually, claiming the existence of a constructive trust of the joint assets. The parties agreed that the outcome of the latter suit would be dispositive of the probate appeal. The trial court found that the plaintiffs had failed to sustain the burden of proof necessary to establish a constructive trust of the assets for the benefit of the plaintiffs and that the language of the decedent’s will referring to the plaintiffs was precatory in nature. The plaintiffs are the executor of the estate of a deceased son of the testatrix and some of her grandchildren.

The plaintiffs’ claim involves a residual devise in the decedent’s will which provided in pertinent part: “I give, devise and bequeath to my son Ralph Cavallaro and or his heirs the remainder of all my assets, now held jointly with him. I direct Ralph Cavallaro to provide for my grandchildren, Julie, Joan, and Mary, children of my son Vincent James Cavallaro by giving to each of them the sum of Ten Thousand ($10,000) Dollars at his earliest discretion. I direct Ralph Cavallaro to provide for my grandchildren who are his children, John, James, Karen and David by giving to each of them the sum of Ten Thousand ($10,000) Dollars at his earliest discretion.”

The trial court found as facts that the mortgage deed and note were recorded on the land records, that the decedent told the lawyer who drafted her will that all of her assets were held jointly with her son, the defendant, that her lawyer advised her that the will would not affect the ownership of the joint assets, that she consistently and steadfastly refused to change the title of these assets from joint ownership with the right of survivorship to her individual name, and that, until the date of her death, she deposited checks in the joint bank accounts and had access to the bank books and could have changed the title to them at any time. Not specifically mentioned in the trial court’s memorandum of decision, but introduced as evidence at the trial was testimony that the bank accounts were created in the 1950s, that the defendant and the testatrix made deposits to them, that the defendant withdrew money at times from the accounts for his own purposes and that both her son, Vincent James, and one of her grandson-in-laws were lawyers who had urged her to terminate the joint tenancies.

The trial court determined that the plaintiffs had to prove the allegations of their complaint by clear and convincing evidence. This standard of proof as to the joint bank accounts is contained within General Statutes § 36-3. The statute provides that a joint bank account “shall, in the absence of fraud or undue influence, or other clear and convincing evidence to the contrary, be prima facie evidence, in any action . . . respecting the ownership of . . . such . . . account, of the intention of all of the named owners thereof to vest title to such . . . account ... in [the] survivor . . . .”

The plaintiffs claim that a confidential relationship existed between the defendant and the testatrix and that, therefore, they did not have to prove the existence of a fraudulent intent or undue influence in order to impose a constructive trust on the joint assets. See Koizim v. Koizim, 181 Conn. 492, 495, 435 A.2d 1030 (1980). The plaintiffs argue that the defendant had the burden of proving by clear and convincing evidence that the mortgage note and bank accounts were valid inter vivos gifts.

The reliance of the plaintiffs on the Koizim case fails to take cognizance of the dissimilarity between it and the present case. The former case was an action for the dissolution of marriage in which both parties agreed that a confidential relationship existed. The evidence of that case was that the plaintiff husband made certain representations upon which the defendant relied, not only because of the marital relationship but because the plaintiff was a lawyer and banker upon whom she relied to act in her best interests.

The relationship between a parent and a child does not per se give rise to the establishment of a fiduciary relationship. Cohen v. Cohen, 182 Conn. 193, 438 A.2d 55 (1980); Berkowitz v. Berkowitz, 147 Conn. 474, 162 A.2d 709 (1960). If, however, a confidential relationship is proved, then the burden of proving fair dealing or the burden of showing the absence of undue influence shifts to the defendant or the fiduciary, and that burden must be sustained by clear and convincing evidence. Alaimo v. Royer, 188 Conn. 36, 41, 448 A.2d 207 (1982); Hieble v. Hieble, 164 Conn. 56, 61, 316 A.2d 777 (1972). Since such a fiduciary relationship was not established, the burden of proof did not shift to the defendant, but remained with the plaintiffs. Alaimo v. Royer, supra, 40. The plaintiffs were required to prove by clear and convincing evidence that the bank accounts and the mortgage deed and note were not valid inter vivos gifts; General Statutes § 36-3; see Cohen v. Cohen, supra; or that they were assets acquired by the defendant under circumstances which required equity to divest him of his beneficial interest and to convert him into a trustee in order to prevent his unjust enrichment. See Cohen v. Cohen, supra, 202; Hieble v. Hieble, supra, 63. The trial court found that the plaintiffs did not sustain their burden of proof.

The intent of the legislature in enacting General Statutes § 36-3 was to make the existence of a joint bank account prima facie evidence of ownership by the survivor which can only be rebutted by clear and convincing evidence to the contrary. See Grodzicki v. Grodzicki, 154 Conn. 456, 462, 226 A.2d 656 (1967).

Since the only assets of the testatrix were the joint bank accounts and the mortgage deed and note, nothing remained to pass by the provisions of the will. Clayman v. Prochaska, 2 Conn. App. 430, 479 A.2d 1214 (1984). Even if that were not true, the provisions of the will left it to the discretion of the defendant to pay $10,000 to each of the decedent’s grandchildren. Julia Cavallaro devised all of her assets to the defendant, and then directed him “at his earliest discretion” to provide for her grandchildren. The use of the quoted phrase did not diminish the absolute fee simple estate devised to the defendant. Fidelity Title & Trust Co. v. Clyde, 143 Conn. 247, 253, 121 A.2d 625 (1956).

The plaintiffs’ contention that General Statutes § 36-3 is unconstitutional must fail. “It is important, at the outset, to recognize that the challenge of any state statute on constitutional grounds imposes a difficult burden on the challenger. [Our Supreme Court has] consistently held that every statute is presumed to be constitutional and [has] required invalidity to be established beyond a reasonable doubt. Eielson v. Parker, 179 Conn. 552, 557, 427 A.2d 814 (1980); State v. Olds, 171 Conn. 395, 411, 370 A.2d 969 (1976); Adams v. Rubinow, 157 Conn. 150, 152-53, 251 A.2d 49 (1968).” Heslin v. Connecticut Law Clinic of Trantolo & Trantolo, 190 Conn. 510, 522, 461 A.2d 938 (1983).

The plaintiffs challenge the statute on the ground that its creation of a rebuttable presumption of ownership impinges upon the powers of the court. A legislative rule of evidence which has the effect of shifting a burden of proof does not necessarily mean that a constitutional infirmity exists in the legislation. State v. Clemente, 166 Conn. 501, 510, 353 A.2d 723 (1974). Our legislature has passed more than a few statutes which create presumptions and affect the rules of evidence. A statute which generates a presumption, thereby shifting the burden of proof, is not an unconstitutional invasion of the legislature into the judicial sphere. Johnson County Savings Bank v. Walker, 79 Conn. 348, 351-52, 65 A. 132 (1906). General Statutes § 36-3 affects the introduction of evidence. It does not impinge on the independence of the judicial branch of government.

There is no error.

       This appeal, originally filed in the Supreme Court, was transferred to this court. Public Acts, Spec. Sess., June, 1983, No. 83-29, § 2 (c).


text:
    Raymond Breen et al. v. Department of Liquor Control et al.
    (2141)
    Hull, Borden and Spallone, Js.
    Argued June 14
    decision released September 25, 1984

      Robert S. Kolesnik, with whom, on the brief, was Mitchell Berger, for the appellants (plaintiffs).

      Robert F. Vacchelli, assistant attorney general, with whom, on the brief, were Joseph I. Lieberman, attorney general, and Richard M. Sheridan, assistant attorney general, for the appellee (named defendant).

      Mark W. Dost, with whom, on the brief, was Augustus R. Southworth III, for the appellees (defendants JasonWoodbury, Inc., et al.).
   Borden, J.

This appeal presents the question of whether the power of the department of liquor control (department) to authorize the removal of a liquor store permit premises is limited by the provisions of General Statutes § 30-52. We hold that it is.

On July 29,1982, the original defendant, James Hicks, filed an application with the department in order to remove his retail liquor store business from West Main Street, Waterbury, to Main Street South, Woodbury, a distance of approximately seven miles. The proposed location complied with the Woodbury zoning ordinances. The plaintiffs, Raymond Breen and Angus Thurrott, doing business as Country Spirit Shop, are owners of a retail liquor store business in Woodbury. A remonstrance was filed and at the hearing the plaintiffs requested and were granted party status. After a hearing, the department approved the removal application, concluding that General Statutes § 30-52 did not control and that the removal was not in violation of the moratorium on the issuance of new permits established by Public Acts 1981, No. 81-294, § 5, now General Statutes § 30-17a. The plaintiffs appealed the decision of the department to the Superior Court. The trial court concluded that the department had the authority to grant the application for removal, and that the hardship and distance restrictions found in General Statutes § 30-52 only apply when an applicant for removal is unable to comply with certain zoning ordinances relating to proximity of liquor outlets. It accordingly rendered a judgment dismissing the appeal. From that judgment the plaintiffs appeal.

The plaintiffs argue that the trial court erred in concluding that General Statutes § 30-52 limits the removal power of the department to a radius of 750 feet from the old permit premises only when there is a violation of a local zoning law and that, absent such a violation, the department had the authority to grant a removal beyond the 750 foot limit. The plaintiffs maintain that the department’s removal power can be exercised only under certain circumstances and that even when those circumstances are present, removal is authorized only within a 750 foot radius of the old permit premises. We agree.

Where the meaning of a statute is clear and the language unambiguous, the enactment speaks for itself and leaves no room for construction by the court. Connecticut State Board of Labor Relations v. Board of Education, 177 Conn. 68, 73, 411 A.2d 28 (1979); Frazier v. Manson, 176 Conn. 638, 642, 410 A.2d 475 (1979); Johnson v. Personnel Appeal Board, 174 Conn. 519, 521-22, 391 A.2d 168 (1978). “This is consonant with the legislative intent which is found not in what the legislature meant to say, but in the meaning of what it did say.” Frazier v. Manson, supra. A statute should not be interpreted in any way to thwart its purpose; id.; Mystic Marinelife Aquarium, Inc. v. Gill, 175 Conn. 483, 489, 400 A.2d 726 (1978); nor, where it is clear and unambiguous, should we speculate as to some supposed intention. Waterbury Petroleum Products, Inc. v. Canaan Oil & Fuel Co., 193 Conn. 208, 231, 477 A.2d 988 (1984); Robinson v. Unemployment Security Board of Review, 181 Conn. 1, 6, 434 A.2d 293 (1980). Rather, a statute should be applied as its language directs. Frazier v. Manson, supra.

The intent of General Statutes § 30-52 is clear and its language is unambiguous as it pertains to the issue in this case. The statute grants the department of liquor control the authority to endorse the removal of permit premises only if one of three conditions arise affecting the original location of the premises: (1) cases of hardship; (2) cases caused by reason of the commencement of an eviction; or (3) cases where the permit premises are taken or threatened to be taken in the exercise of the power of eminent domain. The statute, furthermore, makes it clear that the department’s authority to permit removal is subject to a distance limitation applicable to all three situations delineated above. The department may only endorse the removal of a permit premises within a 750 foot radius of the original permit premises location specified on the permit.

Under General Statutes § 30-52, the cases of eviction or hardship are treated differently from cases where eminent domain is involved. See P. X. Restaurant, Inc. v. Windsor, 189 Conn. 153, 157-59, 454 A.2d 1258 (1983). The difference in treatment, however, pertains only to the degree to which a permit premises may be exempt from local zoning ordinances or other general statutes upon removal.

In cases of either hardship or eviction, the department may endorse a removal from a location in any zone to a new location in a proper business or industrial zone. That new location, however, must be within a 750 foot radius of the old location and must comply with all provisions of the local zoning ordinances and the general statutes other than those ordinances or statutes which prohibit or affect the establishment or removal of “an alcoholic liquor use within certain specified distances of other alcoholic liquor uses of the same or different kinds.” General Statutes § 30-52.

In a case where eminent domain is invoked or threatened, the department may endorse a removal from a location in any zone to a new location in a proper business zone, provided such new location is within a radius of 750 feet “from the point, on the boundary of the overall site of the proposed taking, nearest to the site of such permit premises.” Id. A removal under the eminent domain provision, however, does not result in a situation where any and all zoning ordinances pertaining to the new establishment are inapplicable. P. X. Restaurant, Inc. v. Windsor, supra, 160-61. Rather, any and all ordinances pertaining to the location of the liquor permit premises may be preempted, but the liquor premises are still subject to local zoning ordinances and general statutes which pertain to matters other than location. Id., 160. “The ‘hardship’ and ‘eminent domain’ provisions are readily distinguishable. The ‘hardship’ provision is solely concerned with distances between liquor outlets whereas the ‘eminent domain’ clause is broader and concerned with distances between the liquor permit premises and other premises such as schools, churches, and institutions which are not involved with the sale of alcoholic beverages.” Id., 161.

The trial court’s conclusion, therefore, that the restrictions found in General Statutes § 30-52 apply only when a removal to a new location would conflict with, and consequently override, a local zoning ordinance or decision of the local authority, is not supported by a plain reading of the statute or by case law. We conclude that the department may authorize a removal only in one of the three situations contemplated by General Statutes § 30-52, and that, in the event of any of those situations, the removal power is subject to the 750 foot radius limitation.

In the present case, none of the three situations obtained, and the endorsement of the removal was to a new location approximately seven miles from the original location. The department’s action, therefore, exceeded its statutory authority. Where the action taken by an administrative agency exceeds its statutory authority, that action is void. Arterburn Convalescent Home v. Committee on State Payments to Hospitals, 176 Conn. 82, 88, 405 A.2d 48 (1978) (Loiselle, J., concurring); Newington v. Mazzoccoli, 133 Conn. 146, 156, 48 A.2d 729 (1946). Furthermore, no administrative or regulatory body can modify, abridge or otherwise change the statutory provisions under which it acquires authority unless the statute specifically grants it that power. Lundy Electronics & Systems, Inc. v. Tax Commissioner, 189 Conn. 690, 695, 458 A.2d 387 (1983); Fusco-Amatruda Co. v. Tax Commissioner, 168 Conn. 597, 604, 362 A.2d 847 (1975). We find no such grant of power in General Statutes § 30-52.

We recognize that, as the defendants argue, an administrative agency’s interpretation of a statute is ordinarily an aid to its construction and should be accorded great weight. Local 1186 v. Board of Education, 182 Conn. 93, 105, 438 A.2d 12 (1980). This maxim, however, ordinarily applies in cases where the statutory language is ambiguous, the legislative history is unenlightening and the “governmental agency’s time-tested interpretation is ‘reasonable.’ ” Anderson v. Ludgin, 175 Conn. 545, 555-56, 400 A.2d 712 (1978); New Haven v. United Illuminating Co., 168 Conn. 478, 493, 362 A.2d 785 (1975). Here, General Statutes § 30-52 is not ambiguous as it applies to the issue in this appeal and, in the light of that lack of ambiguity, the department’s administrative interpretation of it, time-tested or not, is not reasonable.

The defendants also argue that the Connecticut state regulations authorize removals of liquor permit premises from one town to another because of an amendment to § 30-6-A16 of the Regulations of Connecticut State Agencies. Prior to 1977, § 30-6-A16 of those regulations expressly prohibited removals of retail permit businesses from one town to another. It stated, in part, that “[t]he removal of a retail permit business is confined to the town in which the business is presently located.” In 1977, § 30-6-A16 was amended to delete the provision confining removals to the town in which the business is located.

Whatever the effect, if any, that regulation may have on other cases, which we do not decide, it does not help the defendants here. “The power of an administrative agency to prescribe rules and regulations under a statute is not the power to make law, but only the power to adopt regulations to carry into effect the will of the legislature as expressed by the statute.” Salmon Brook Convalescent Home v. Commission on Hospitals & Health Care, 177 Conn. 356, 363, 417 A.2d 358 (1979). Although the regulation was amended, the legislature did not amend General Statutes § 30-52. Thus, the directives of that statute remained unchanged.

There is error, the judgment is set aside and the case is remanded with direction to sustain the appeal.

In this opinion the other judges concurred.

       This appeal was originally filed in the Appellate Session of the Superior Court. Public Acts, Spec. Sess., June, 1983, No. 83-29, § 3 (c).

       On February 18, 1983, Jason-Woodbury, Inc., purchased Hicks’ liquor store business and was, by stipulation of the parties, substituted as a defendant. The department of liquor control is also a defendant.

       There were other plaintiffs but they all withdrew from this action on November 25, 1982.

       General Statutes § 30-52 provides: “Every permit for the sale of alcoholic liquor shall specify the town and the particular building or place in such town in which such liquor is to be sold, and shall not authorize any sale in any other place or building. Such permit shall also be made revocable in terms for any violation of any of the provisions of this chapter. Notwithstanding the existence of any local zoning ordinance or general statute prohibiting or affecting the establishment or removal to a new location of an alcoholic liquor use within certain specified distances of other alcoholic liquor uses of the same or different kinds, the department of liquor control, in cases of hardship and in cases caused by reason of the commencement of an eviction action against such permittee from the particular building or place in such town specified in such permit, may endorse upon such permit permission to the permittee to remove from one building or place in any zone to another building or place in a proper business or industrial zone, and the permittee shall thereupon be authorized to remove to such new location with such permit. The applicant for such permission shall specify the building or place to which he wishes to remove, and such new location shall comply with all other provisions of the local zoning ordinances or general statutes except as hereinbefore provided; and such permittee shall be allowed to move such permit premises only within a radius of seven hundred fifty feet of the old permit premises. The removal of the permit premises from the particular building or place specified in the permit without the approval of the department shall be grounds for the suspension or revocation of the permit. In such cases an appeal from an order refusing permission to remove may be taken in accordance with the provisions of section 30-60. If the site of any permit premises is taken or threatened to be taken in the exercise of the power of eminent domain, the department may authorize the relocation of such permit premises to a new location, any local ordinance or general statute notwithstanding, provided such new location is zoned for business use and is within a radius of seven hundred fifty feet from the point, on the boundary of the overall site of the proposed taking, nearest to the site of such permit premises.”

       The defendants argue that the department’s power to grant removals beyond the radius rules of General Statutes § 30-52 is supported by case law. They maintain that the Supreme Court has recognized that the department may grant a removal from one town to another where there is no violation of local zoning ordinances. The defendants cite Karp v. Zoning Board, 156 Conn. 287, 240 A.2d 845 (1968), and Stapleton v. Zoning Board of Appeals, 149 Conn. 706, 183 A.2d 750 (1962), as support for this contention. Those two cases are inapposite. Neither case involved a test of the department’s removal power, but, rather, involved the authority of local zoning boards. In Karp v. Zoning Board, supra, 292-93, the court held that a local zoning authority may prescribe a distance location in excess of the 750 foot limitation contained in General Statutes § 30-52 in hardship situations involving the taking of an existing permit premises by eminent domain. In Stapleton v. Zoning Board of Appeals, supra, 711, the court simply suggested in dicta that the department, in those specific circumstances delineated in General Statutes § 30-52, may approve a request for removal of a permit premises within the distance limitations without the applicant having to apply for a variance of a local zoning distance restriction.