text:
    Raymond E. Altberg v. Paul Kovacs Tire Shop, Inc.
    (11391)
    Dupont, C. J., Foti and Landau, Js.

      Argued March 25
    decision released June 15, 1993

      Raymond T. Connor, for the appellant (defendant).

      Stephen L. Savarese, for the appellee (plaintiff).
   Dupont, C. J.

The sole issue in this appeal is whether the trial court improperly denied the defendant’s motion to open a judgment rendered after the defendant was defaulted for failure to plead. The underlying factual dispute revolves around a used truck that the plaintiff purchased from the defendant used car dealership. Shortly after the plaintiff purchased the truck, the truck’s engine failed and the plaintiff had it towed to the defendant’s garage. After the defendant refused to repair the truck at its expense, the plaintiff commenced this action. The plaintiff’s complaint was in three counts and sought (1) damages for breach of a statutory warranty, (2) rescission of the sale, and (3) damages for a violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes §§ 42-110a through 42-110q.

The defendant filed an appearance, but did not file an answer. The plaintiff subsequently moved to default the defendant for failure to plead. After the plaintiffs motion was granted, the plaintiff filed a motion for judgment. The motion for judgment stated that the plaintiff was “moving for judgment pursuant to Practice Book § 358 based upon the express or implied promise to pay a definite sum and claims only liquidated damages.” The motion requested judgment against the defendant “in the amount of $35,733.76, plus interest, and costs in the amount of $161.80.” The plaintiff’s motion for judgment is at variance with the “Statement re: Amount in Demand” attached to the plaintiff’s complaint in two material respects. The former claimed damages in excess of $15,000 and sought a remedy based on an express or implied promise to pay a definite sum, whereas the latter claimed damages under $15,000 and stated “[t]he remedy sought is not based upon an express or implied promise to pay a definite sum.” (Emphasis added.)

The motion for judgment was accompanied by an affidavit of debt signed and acknowledged by the plaintiff, a copy of the purchase agreement and vehicle registration, a military affidavit, a bill of costs, and a proposed form of judgment and notice. The plaintiffs affidavit alleged that he had purchased the truck for $8649 and that he had spent $378 for improvements to the truck, $300 for insurance, $1036.42 for interest on a loan of $8375 to buy the truck, and $714.50 for alternate transportation. No bills were attached to the affidavit to substantiate any of the sums allegedly paid.

The plaintiff’s motion for judgment was assigned for a short calendar hearing on December 16, 1991, but neither the defendant nor its attorney appeared. The court, West, J., heard argument from the plaintiffs counsel, and on December 19,1991, rendered judgment “on the papers” in favor of the plaintiff for damages of $10,041.50 plus interest at the legal rate of $1042.77, plus costs of $161.80. The court specifically stated that it did not award punitive damages or attorney’s fees. The notice of this judgment was mailed to the defendant on January 16, 1992.

The defendant attempted to file an answer to the complaint on December 31,1991, but the pleading was returned on January 16, 1992, accompanied by the notice of judgment and a form letter stating that no pleadings are accepted after judgment enters and that the defendant should file a motion to open the judgment. The defendant did not file an appeal from the judgment or file a motion to open the judgment within the appeal period.

After the appeal period had expired, the plaintiff was granted a bank execution by the court. The sheriff served the execution on the defendant’s bank and was able to satisfy the judgment partially by recovering $10,670.48 from the defendant’s account. The defendant then retained new counsel and filed a motion to open the judgment on March 3, 1992. At the hearing on the motion to open the judgment, the defendant argued that it had a good defense, namely that a hearing in damages should have been held because the complaint did not seek a liquidated sum, and that he was prevented by mistake, accident or reasonable cause from making that defense. The motion was denied by the court, Rodriguez, J., and the defendant appeals from that denial.

After filing the appeal, the defendant moved for an articulation of the trial court’s decision to deny its motion to open. In its articulation, the trial court stated that it denied the defendant’s motion to open because it had concluded that the defendant had failed to show that it was precluded by mistake, accident or reasonable cause from defending. The court found that the affidavit of the defendant’s original counsel, stating that a search of his office did not reveal a copy of the motion for judgment or of the short calendar docket on which the motion had appeared, did not support a claim of insufficient notice. The court also noted that the denial of a motion to open a judgment is not an abuse of discretion where the failure to prosecute the claim was the result of negligence. The court, therefore, did not reach the question of the propriety of a hearing in damages.

The defendant’s preliminary statement of issues asserted that the court improperly granted the plaintiff’s motion for judgment after default without holding a hearing in damages, and improperly denied its motion to open the judgment. The plaintiff moved to dismiss the appeal, arguing that the defendant had failed to file its appeal within twenty days of the issuance of notice of the judgment, and, therefore, could not claim any impropriety in the judgment. We granted the plaintiff’s motion as to any issues concerning the December, 1991 judgment, and upon further motion of the plaintiff, ordered a portion of the defendant’s brief stricken on the basis that the defendant was attempting to argue the merits of the underlying judgment. This appeal, therefore, is limited to review of the action of the trial court in refusing to open the judgment and is not concerned with the merits of that judgment.

On appeal from a denial of a motion to open a judgment where there has been no appeal from the underlying judgment, the good cause required to open that judgment cannot involve the merits of the judgment because that would require a resolution of the same question that would have been resolved had the appellant timely appealed from the judgment and would, in effect, extend the time to appeal. See Farmers & Mechanics Savings Bank v. Sullivan, 216 Conn. 341, 356, 579 A.2d 1054 (1990). When a motion to open is filed more than twenty days after the judgment, the appeal from the denial of that motion can test only whether the trial court abused its discretion in failing to open the judgment and not the propriety of the merits of the underlying judgment.

The decision to grant or deny a motion to open a judgment is within the trial court’s discretion and this decision will not be disturbed on appeal unless it was unreasonable and a clear abuse of discretion. Red Rooster Construction Co. v. River Associates, Inc., 224 Conn. 563, 575, 620 A.2d 118 (1993). Practice Book § 377 provides in relevant part that a default judgment may be set aside by “showing reasonable cause, or that a good cause of action or defense in whole or in part existed at the time of the rendition of such judgment . . . and that . . . the defendant was prevented by mistake, accident or other reasonable cause from . . . appearing to make the same.”

Here, the trial court’s findings were not inconsistent with the subsidiary facts and its decision to deny the motion to open was not unreasonable and does not constitute an abuse of discretion. This conclusion, however, does not entirely resolve the appeal. Although the judgment of December 19,1991, need not be set aside, we conclude that it must be corrected because it is facially inconsistent with the complaint. See Connecticut Mortgage & Title Guaranty Co. v. DiFrancesco, 112 Conn. 673, 674, 151 A. 491 (1930).

A plaintiff’s right to recover has traditionally been limited to the allegations of his complaint, and a plaintiff may not allege one cause of action and recover upon another. Tedesco v. Stamford, 215 Conn. 450, 458, 576 A.2d 1273 (1990); A. V. Giordano Co. v. American Diamond Exchange, Inc., 31 Conn. App. 163, 166, 623 A.2d 1048 (1993). Here, the plaintiff alleged three different causes of action in his complaint, the first alleging a breach of statutory warranty, the second seeking rescission, and the third alleging a violation of CUTPA. Judgment was rendered in the amount of $10,041.50, but it cannot be ascertained whether judgment was awarded on count one, two, or three. We conclude that the amount of the damages awarded corresponds most accurately with the cause of action for rescission.

With regard to count one, General Statutes § 42-220 provides that each sales contract entered into by a used car dealer for the sale of a used motor vehicle must contain an express warranty stating that the vehicle will remain mechanically operational and sound for at least sixty days or three thousand miles of operation, whichever comes first. Thus, the plaintiffs remedy under this statute is the cost of the parts and labor to repair the truck so as to fulfill the warranty. The record indicates that cost of repair of the truck in this case would amount to approximately $2000. The judgment could not have been rendered on the basis of this count because the judgment included repayment to the plaintiff of the purchase price of the truck.

With respect to count three, CUTPA allows for the recovery of actual damages, and, within a court’s discretion, punitive damages, costs and reasonable attorney’s fees, and injunctive or other equitable relief. General Statutes § 42-110g. The plaintiff’s actual damages in this case would amount to the cost of repairing his vehicle plus the cost of reasonable alternative transportation. Again, the court rendered a judgment that included repayment to the plaintiff of the purchase price of the truck.

The damages awarded are most like those claimed in the second count seeking rescission. “Rescission, simply stated, is the unmaking of a contract. It is a renouncement of the contract and any property obtained pursuant to the contract, and places the parties, as nearly as possible, in the same situation as existed just prior to the execution of the contract.” Kavarco v. T.J.E., Inc., 2 Conn. App. 294, 299, 478 A.2d 257 (1984). If rescission is chosen as a remedy, it usually operates as a waiver of the right to sue for damages. Duksa v. Middletown, 192 Conn. 191, 204, 472 A.2d 1 (1984); see also Kavarco v. T.J.E., Inc., supra, 299. Usually, a judgment cannot stand if both damages and rescission are awarded. Duksa v. Mid-dletown, supra, 206.

The effect of the judgment in this case is that the parties were returned, as nearly as possible, to the position they were in prior to the execution of the contract for the sale and purchase of the truck. Moreover, the damages awarded for the improvements to the truck, insurance and alternate transportation simply constituted restitution for consequential expenses incurred prior to the repudiation of the contract and may properly be awarded in an action seeking rescission. Kavarco v. T.J.E., Inc., supra, 298 n.4. The judgment failed, however, to address the ownership of the truck.

If there is a judicial action of a trial court that requires a change in a judgment because it affects justice, an appellate court should effect that change. Simpson v. Y.M.C.A. of Bridgeport, 118 Conn. 414, 172 A. 855 (1934); Connecticut Mortgage & Title Guaranty Co. v. DiFrancesco, supra. Practice Book § 375 provides in relevant part: “Upon a default, the plaintiff can have no greater relief than that demanded in his complaint . . . .” Here, the plaintiff obtained more relief than that demanded in his complaint. Under the terms of the judgment, the plaintiff obtained the money damages needed to place him in the legal position rescission requires, and retained ownership of the truck as well. The judgment, therefore, must be corrected.

The judgment is reversed and the case is remanded with direction to render judgment as on file except as modified to direct the plaintiff to transfer title to the truck, VIN 3B4GW12T4GM623264, to the defendant.

In this opinion the other judges concurred.

       This claim is based on a breach of the statutory warranty created by the provisions of the Used Automobiles Warranties Act, General Statutes §§ 42-220 through 42-226. General Statutes § 42-221 (b) provides in pertinent part: “Each contract entered into by a dealer for the sale of a used motor vehicle which has a cash purchase price of five thousand dollars or more shall include an express warranty, covering the full cost of both parts and labor, that the vehicle is mechanically operational and sound and will remain so for at least sixty days or three thousand miles of operation, whichever period ends first, in the absence of damage resulting from an automobile accident or from misuse of the vehicle by the consumer. A dealer may not limit a warranty covered by this section by the use of such phrases as ‘fifty-fifty’, ‘labor only’, ‘drive train only’, or other words attempting to disclaim his responsibility.”
      It is undisputed that the plaintiff owned the truck for less than sixty days and had driven it less than 3000 miles when the vehicle’s engine failed.

       Practice Book § 358 provides for judgments after default for failure to appear in contract actions.

       This sum was based, in part, on the plaintiff’s claim that CUTPA authorized treble damages. Although CUTPA provides for punitive damages, it does not expressly provide for treble damages. General Statutes § 42-110g (a).

       This sum is the total of the purchase price of the truck, the cost of improvements made to it before it became inoperable, the cost of alternate transportation after it became inoperable, and the cost of insurance on the truck.

       At the time of the execution, the judgment was valid. See Mulholland v. Mulholland, 31 Conn, App. 214, 220, 624 A.2d 379 (1993).

       Practice Book § 377, which mirrors General Statutes § 52-212, provides: “Any judgment rendered or decree passed upon a default or nonsuit may be set aside within four months succeeding the date on which it was rendered or passed, and the case reinstated on the docket on such terms in respect to costs as the court deems reasonable, upon the written motion of any party or person prejudiced thereby, showing reasonable cause, or that a good cause of action or defense in whole or in part existed at the time of the rendition of such judgment or the passage of such decree, and that the plaintiff or the defendant was prevented by mistake, accident or other reasonable cause from prosecuting or appearing to make the same. Such written motion shall be verified by the oath of the complainant or his attorney, shall state in general terms the nature of the claim or defense and shall particularly set forth the reason why the plaintiff or the defendant failed to appear. The court shall order reasonable notice of the pendency of such written motion to be given to the adverse party, and may enjoin him against enforcing such judgment or decree until the decision upon such written motion.
      “If the court opens a nonsuit entered pursuant to Sec. 363, the court as part of its order may extend the time for filing pleadings or disclosure.”


source: Caselaw Access Project

author: Cretella, J.

license: Public Domain

text:
    Barbara Thoma et al. v. Planning and Zoning Commission of the Town of Canterbury et al.
    (11524)
    Daly, Freedman and Cretella, Js.
    Argued March 30
    decision released June 15, 1993

      Edward E. Moukawsher, for the appellants (defendant Theodore G. Dean et al.).

      Angela Hawkins Fichter, for the appellees (plaintiffs).

      Richard S. Cody, for the named defendant.
   Cretella, J.

The sole issue on appeal involves the validity of a town zoning regulation prohibiting the planning and zoning commission from approving an application for the subdivision of land containing inland wetlands if the town’s inland wetland agency fails to find that such subdivision will not adversely affect the wetlands area. The resolution of that issue turns on whether the regulation conflicts with General Statutes § 8-26, which requires the commission to give “due consideration” to any report or decision of the inland wetlands agency. The defendant Canterbury planning and zoning commission unanimously approved a subdivision application by the defendants Theodore G. Dean and his wife Beverly Dean (developers), notwithstanding that the town’s inland wetlands agency had submitted a report to the commission indicating that it did not approve the developers’ application for the subdivision. The trial court sustained the appeal of the plaintiffs Barbara Thoma and Theodore W. Dean from the commission’s decision, determining that, although the regulation was more protective of inland wetlands than the statute, it was not inconsistent or incompatible with the statute. We conclude that the regulation at issue here is in conflict with General Statutes § 8-26 and must yield to it.

On February 29,1989, the developers applied to the commission for approval of a proposed subdivision of thirteen acres of land into five residential building lots. The undivided parcel contains inland wetlands areas, but the subdivision plan does not propose any regulated activities within the wetlands for which a permit from the local inland wetlands agency would be required under General Statutes §§ 22a-42 and 22a-42a. The developers, however, did submit their application to the inland wetlands agency as required by General Statutes § 8-26.

After reviewing the application, the inland wetlands agency concluded that, although no regulated activities were contemplated in the wetlands, the proposed subdivision would have an adverse effect on the wetlands and accordingly did not grant its approval to the proposed subdivision. The defendant commission, nevertheless, approved the developers’ application, precipitating this appeal.

At issue here is the interrelation between § 4.12.3 of the Canterbury zoning regulations and General Statutes § 8-26. Section 4.12.3 prohibits the subdivision of any parcel of land containing inland wetlands, “until adequate evidence is provided to the [commission] that such subdivision or resubdivision will not adversely [a]ffect any designated inland wetland areas.” The regulation then defines “adequate evidence” to be a “written record of action by the Town of Canterbury’s Inland Wetland Agency indicating that the activities proposed in said subdivision plan will not adversely [a]ffect any inland wetland area . . . .’’In contrast, General Statutes § 8-26 provides that if the parcel to be subdivided contains inland wetlands, then, concurrently upon application to the commission for subdivision approval, application for approval shall also be made to the town inland wetlands agency. Moreover, the commission “shall not render a decision until the inland wetlands agency has submitted a report with its final decision to such commission. In making its decision the commission shall give due consideration to the report of the inland wetlands agency.” (Emphasis added.)

On appeal to the trial court, the plaintiffs contended that when subdivision approval is sought for any parcel containing wetlands, § 4.12.3 requires, as a condition precedent to approval by the commission, that the inland wetlands agency specifically approve the proposed subdivision. Absent such approval, the plaintiffs assert, the commission cannot approve the subdivision. The trial court agreed with the plaintiffs’ interpretation of § 4.12.3, and thus concluded that the commission’s approval of the developers’ subdivision was illegal since the wetlands agency did not approve the plan. We conclude that the trial court properly interpreted the provisions of § 4.12.3. For the following reasons, however, we do not agree with the trial court’s ultimate determination that § 4.12.3 invalidates the commission’s approval of the subdivision plan.

Even though we agree with the trial court’s interpretation of § 4.12.3, we must determine, as did the trial court, whether the regulation is an impermissible delegation of authority to the wetlands agency and is thus in conflict with § 8-26. General Statutes §§ 8-25 and 8-26 are all inclusive statutes regulating the subdivision of land and the procedures for seeking subdivision approval. Additionally, § 8-26 specifically addresses the procedures to be followed in applying for subdivision approval when the land to be subdivided contains wetlands areas. While it is true that local planning and zoning commissions and wetlands agencies have the authority to enact zoning, subdivision and wetlands regulations, such regulations must derive their authority from the General Statutes and may not conflict with such statutes. See Langer v. Planning & Zoning Commission, 163 Conn. 453, 457, 313 A.2d 44 (1972); Finn v. Planning & Zoning Commission, 156 Conn. 540, 543-46, 244 A.2d 391 (1968).

The regulation and approval of subdivisions fall within the purview of the town planning commission in accordance with the provisions of General Statutes §§ 8-18 through 8-30a, while activities involving inland wetlands are regulated by the local inland wetlands agency per General Statutes §§ 22a-42 and 22a-42a. Section 8-26 specifically addresses the interaction between the commission and the wetlands agency when subdivision approval is sought for a parcel of land containing wetlands on which no regulated activities are contemplated. Section 8-26 provides that before rendering a decision on a subdivision application, the commission must receive and give “due consideration” to a report prepared by the inland wetlands agency. If the legislature had intended to give the inland wetlands agency “veto power” over the approval of any proposed subdivision, or intended that approval of the proposed subdivision by the wetlands agency was to be a condition precedent to approval by the commission, § 8-26 would have clearly enunciated such policy. It did not. Absent such expression, we decline to transform the concept of “due consideration” into something more. See Point O’Woods Assn. v. Zoning Board of Appeals, 178 Conn. 364, 366, 423 A.2d 90 (1979).

After properly interpreting the provisions of § 4.12.3, the trial court went on to determine that the regulation was not incompatible with General Statutes § 8-26. The trial court’s conclusion is premised on the fact that both the statute and the regulation express an underlying policy of protecting the inland wetlands, and, although the regulation offers greater protection of wetlands than does the statute, this does not make the regulation inconsistent or incompatible with the statute. The developers argued that the regulation was invalid because it constituted an unlawful delegation of the commission’s authority to the wetlands agency. The developers further contended that § 8-26 defines the role of the wetlands agency in the subdivision application approval process, and that § 4.12.3 patently allows the wetlands agency to exceed the authority given to it under the statute.

The trial court dismissed the developers’ argument by determining that § 4.12.3 is a zoning regulation rather than a subdivision regulation. The basis of that determination was that § 4.12.3 falls within a more general provision of the Canterbury zoning regulations entitled “Construction Adjacent to Bodies of Water and in Wetland Areas.” This determination was crucial to the trial court’s resolution of this case because, by designating § 4.12.3 a zoning rather than a subdivision regulation, the trial court could ignore the facial conflict between § 4.12.3 and General Statutes § 8-26 and use the broad language of General Statutes § 8-2 to support its finding that the commission validly delegated its authority to approve subdivision applications for parcels containing wetlands to the wetlands agency when it promulgated § 4.12.3.

Regardless of whether § 4.12.3 is a zoning or subdivision regulation, it was clearly intended to relate, and in fact does relate, to the situation specifically addressed by § 8-26, namely, the subdivision of land containing inland wetlands areas. The scope of both the commission’s and the agency’s authorities is specifically detailed in the statute.

“The final decision contained in the wetlands report is merely one of the many factors the zoning commission must consider in rendering its own decision . . . . The zoning commission must give the wetlands commission report due consideration. We do not read this as a statutory mandate that the zoning commission’s decision be based on the wetlands report. To afford due consideration is to ‘give such weight or significance to a particular factor as under the circumstances it seems to merit, and this involves discretion.’ ” Arway v. Bloom, 29 Conn. App. 469, 479-80, 615 A.2d 1075 (1992), cert. granted, 224 Conn. 924, 618 A.2d 530 (1993).

Thus, § 4.12.3, which gives the wetlands agency veto power over any proposed subdivision application if the land to be subdivided contains inland wetlands, directly contradicts the division of authority mandated by § 8-26. In promulgating § 4.12.3, therefore, the commission impermissibly delegated authority over a subject matter that is solely within its province. See Caldrello v. Planning Board, 193 Conn. 387, 476 A.2d 1063 (1984) (holding that a regulation requiring planning board approval as a prerequisite to subdivision approval by the city council was invalid because it conflicted with the terms of the city charter providing that final subdivision approval rested with the council); cf. Forest Construction Co. v. Planning & Zoning Commission, 155 Conn. 669, 236 A.2d 917 (1967) (holding that the planning and zoning commission did not impermissibly delegate its authority to the board of selectmen when it promulgated a regulation requiring that as a prerequisite to the filing of preliminary plan of subdivision that all proposed road specifications be approved by the selectmen as conforming with town road specifications because such delegation was ministerial in nature and the power over approval of the application remained with the commission); accord Baker v. Kerrigan, 149 Conn. 596, 183 A.2d 268 (1962). Ultimate authority over approval of a subdivision rests with the commission, and any regulation that abrogates this authority is invalid. See Beacon Falls v. Posick, 212 Conn. 570, 582, 563 A.2d 285 (1989); Dwyer v. Farrell, 193 Conn. 7, 14, 475 A.2d 257 (1984); Shelton v. Shelton, 111 Conn. 433, 447, 150 A. 811 (1930).

We therefore conclude that the regulation constitutes an impermissible delegation of authority by the commission and thus conflicts with the statute and must give way to it.

The judgment is reversed and the case is remanded to the trial court with direction to render judgment dismissing the plaintiffs’ appeal.

In this opinion the other judges concurred.

       General Statutes § 8-26 provides in pertinent part: “All plans for subdivisions and resubdivisions . . . shall be submitted to the [planning] commission with an application in the form to be prescribed by it. The commission shall have the authority to determine whether the existing division of any land constitutes a subdivision or resubdivision under the provisions of this chapter, provided nothing in this section shall be deemed to authorize the commission to approve any such subdivision or resubdivision which conflicts with applicable zoning regulations. . . . The commission shall approve, modify and approve, or disapprove any subdivision or resubdivision application or maps and plans submitted therewith . . . within the period of time permitted under section 8-26d. . . . If an application involves land regulated as an inland wetland or watercourse under the provisions of chapter 440, the applicant shall submit an application to the agency responsible for administration of the inland wetlands regulations no later than the day the application is filed for the subdivision or resubdivision. The commission shall not render a decision until the inland wetlands agency has submitted a report with its final decision to such commission. In making its decision the commission shall give due consideration to the report of the inland wetlands agency. ...”

         The plaintiffs, Barbara Thoma and her father, Theodore W. Dean, jointly own property that is, at one point, 99.59 feet from the proposed subdivision. The plaintiffs thus have standing to challenge the commission’s approval of the subdivision because they are “aggrieved persons” as defined by General Statutes § 8-8 (a) (1). Zoning Board of Appeals v. Planning & Zoning Commission, 27 Conn. App. 297, 301-302, 605 A.2d 885 (1992); see General Statutes § 8-8 (b). It should also be noted that the defendant Theodore G. Dean is the son of the plaintiff Theodore W. Dean, and the brother of the plaintiff Thoma.

       Section 4.12.3 of the Canterbury zoning regulations provides: “No lot or parcel on which inland wetland areas, as defined in Section 22a-39-2 of the Connecticut State Statutes as amended, are located shall be subdivided or resubdivided until adequate evidence is provided to the Town of Canterbury’s Planning and Zoning Commission, that such subdivision or re-subdivision will not adversely [a]ffeet any designated inland wetland areas. Adequate evidence shall be defined for the purpose of this section to be a written record of action by the Town of Canterbury’s Inland Wetland Agency indicating that the activities proposed in said subdivision plan will not adversely [a]ffect any inland wetland area or that such designation of wetlands on the subject property is incorrect and that wetlands do not, in fact, exist on the subject site.”
      The trial court determined that § 4.12.3 erroneously denominates § 22a-39-2 as a state statute, when, in fact, it is a regulation promulgated by the commissioner of environmental protection pursuant to authority vested in him by General Statutes § 22a-39. We agree with this determination.

       Alternatively, subdivisions may be regulated by a town’s combined planning and zoning commission if the planning function has been vested in that body pursuant to General Statutes § 8-4a.

       The commission also filed a brief and argued on this appeal. Although denominated as an appellee, the commission occupies a unique position in this appeal; it argues that its approval of the subdivision was proper, while concurrently arguing that the regulation is valid but that the trial court did not correctly interpret it. The commission argues that the regulation should be interpreted to require that if the inland wetlands agency approves the subdivision because it finds no adverse impact on the wetlands, the commission may then approve the subdivision without regard to any wetland problem. On the other hand, should the wetlands agency determine that the subdivision would have an adverse effect on the wetlands, such a determination would not necessarily preclude the commission from approving the subdivision, but that the commission could make its own determination, on the basis of evidence presented to it, to determine whether the subdivision would have an adverse impact on the wetlands.
      The commission argues that such an interpretation would avoid the problem of effectively giving the agency veto power over applications for approval of subdivisions that contain wetlands. We cannot agree with this tortured interpretation of the regulation. As noted above, we agree with the trial court’s determination that § 4.12.3 prohibits the commission from approving a subdivision without prior approval of the wetlands agency.

       The trial court noted that the various subsections within § 4.12 require certain minimum distances from wetlands for building construction; § 4.12.1; prohibit sewage disposal within a minimum distance from wetlands; § 4.12.2; prohibit the subdivision of land containing wetlands unless the inland wetlands agency finds no adverse impact on the wetlands; § 4.12.3; and prohibit the issuance of special permits, exceptions and site plan approvals unless the inland wetlands agency finds no adverse impact on the wetlands.

       General Statutes § 8-2 provides in pertinent part: “(a) The zoning commission of each city, town or borough is authorized to regulate . . . the erection, construction, reconstruction, alteration or use of buildings or structures and the use of land. . . . Such regulations shall be designed to lessen congestion in the streets; to secure safety from fire, panic, flood and other dangers; to promote health and the general welfare; to provide adequate light and air; to prevent the overcrowding of land; to avoid undue concentration of population and to facilitate the adequate provision for transportation, water, sewerage, schools, parks and other public requirements. . . . Zoning regulations shall be made with reasonable consideration for their impact on agriculture. Zoning regulations may be made with reasonable consideration for the protection of historic factors and shall be made with reasonable consideration for the protection of existing and potential public surface and ground drinking water supplies. On and after July 1,1985, the regulations shall provide that proper provision be made for soil erosion and sediment control pursuant to section 22a-329. . . .”


author: Daly, J.

text:
    Village Linc Corporation v. The Children’s Store, Inc., et al.
    (11554)
    Daly, Landau and Freedman, Js.
    Argued March 22
    decision released June 15, 1993

      D. Seeley Hubbard> for the appellant (plaintiff).

      MarcM. Schindelman, for the appellees (defendants).
   Daly, J.

The plaintiff appeals from the trial court’s order denying the plaintiff a prejudgment remedy against the individual defendants, Carla Ahlers and Richard Ahlers, to secure a judgment in a pending suit for nonpayment of rent on a renewed lease that the plaintiff contends the individual defendants guaranteed. We affirm the judgment of the trial court.

The facts on which the plaintiffs action rests are as follows. On November 27, 1982, Hennessey and Hennessey, a partnership doing business as Village Walk Associates, a predecessor in title to the plaintiff Village Line Corporation, and Tot-Ta-Trot, the name under which the named defendant was doing business, entered into a written five year lease. The lessee was described in the lease as “ ‘Tot-Ta-Trot’ personally guaranteed by Carla Ahlers.” The lease provided, “The term of this lease shall be Five (5) years commencing on the Commencement Date [January 1, 1983] . . . unless sooner terminated or extended as hereinafter expressly provided.” The lease also specified the amount of the rent to be paid by the lessee for the duration of the original term and provided for the amount of the rent in the event the lease was renewed for five years. An addendum to the lease gave the lessee the option to renew the lease for two consecutive five year renewal periods “at such rental as the Landlord and Tenant shall mutually agree upon” even though the lease itself set forth the cost of the rental payments for the first five years of renewal. The lessee was required to notify the lessor of its intention to exercise this option through written notice given six months before the original five year term ended. Carla Ahlers, the predecessor of the named defendant, executed both the lease and the addendum on behalf of Tot-Ta-Trot.

On November 6,1985, the lease was modified in writing by the “Lease Modification Agreement.” This agreement was executed to settle a suit relating to certain disputed common charges. The modification agreement referred to the five year term of the original lease but did not refer to the lessee’s option to renew under the addendum of the original lease. The guarantee clause of the modification agreement provided: “The Tenant shall be Tot-Ta-Trot, The Children’s Store, Inc., a Connecticut corporation, and performance of the obligations of the Tenant under the lease is personally guaranteed by Carla Ahlers. The performance of the obligations of the Tenant under the lease is also personally guaranteed by Richard Ahlers for the period of six months from either the date that Tenant vacates from any default notice by Landlord or the date of notice of termination by Tenant.” This agreement was executed by Carla Ahlers individually and as president of Tot-Ta-Trot, by Richard Ahlers “as Guarantor under Paragraph 5,” and by the landlord.

The named defendant subsequently exercised its option to renew the lease pursuant to the addendum of the original lease and a “lease renewal agreement” was executed on November 16,1987. This agreement made no reference to the guarantees of the individual defendants set forth in the lease modification agreement. The lease renewal agreement was signed by Carla Ahlers as “Tenant-Tot-Ta-Trot, The Children’s Store, Inc. by Carla Ahlers, Its President,” and by the plaintiffs representatives. It was not signed by Richard Ahlers. This agreement leased the premises to the named defendant for an additional eight years. A new rent schedule was created in this lease renewal agreement and the named defendarit lessee was granted the right to renew the lease for another five year period.

At the landlord’s request, the named defendant executed a landlord’s “tenant’s estoppel certificate” on November 29, 1989. It states that the original lease dated October 26, 1982, and expiring December 31, 1995, “is in full force and effect and has not been assigned, modified, extended, supplemented or amended” and that “the lease represents the entire agreement between the parties as to the leasing arrangements.”

The named defendant breached the lease renewal agreement when it failed to pay the rent due in the lease. On September 4,1991, the plaintiff instituted the underlying action to recover the unpaid rent from the named defendant and the individual defendants as guarantors. An application for a prejudgment remedy was filed in May, 1992, and a hearing was held on June 23,1992, to determine if probable cause existed to sustain the plaintiff’s action and to justify an order for a prejudgment remedy against the defendants.

The trial court issued the prejudgment remedy against the named defendant, The Children’s Store, Inc., doing business as Tot-Ta-Trot, in the amount of $162,662. The trial court, however, denied the prejudgment remedy against the individual defendants finding that no probable cause existed to support the granting of a prejudgment remedy. On appeal, the plaintiff claims that the trial court improperly refused to grant the plaintiff a prejudgment remedy against the individual defendants as guarantors because the guarantee signed as part of the modification agreement was intended to cover the renewal of the lease as a matter of law.

Whether the parties in this case intended that the guarantee be a continuing guarantee that would secure the lease renewal agreement “ ‘is principally a question of the intention of the contracting parties, a question of fact to be determined by the trier of facts.’ Monroe Ready Mix Concrete, Inc. v. Westcor Development Corporation, 183 Conn. 348, 351, 439 A.2d 362 (1981).” Connecticut Bank & Trust Co. v. Wilcox, 201 Conn. 570, 576, 518 A.2d 928 (1986). “The finding of the trial court with respect to the intent of the contracting parties regarding the scope of their contractual commitment is, like any other finding of fact, subject only to limited review on appeal. Otto Contracting Co. v. S. Schinella & Son, Inc., 179 Conn. 704, 709, 427 A.2d 856 (1980); Hydro-Hercules Corporation v. Gary Excavating, Inc., 166 Conn. 647, 653, 353 A.2d 714 (1974); Bianco v. Darien, 157 Conn. 548, 557, 254 A.2d 898 (1969); Finlay v. Swirsky, 98 Conn. 666, 671, 120 A. 561 (1923).” Monroe Ready Mix v. Westcor Development Corporation, supra, 351. Normally our review of such a claim is limited because of the narrow scope of review of the legal and factual issues involved in an application for a prejudgment remedy; Goodwin v. Pratt, 10 Conn. App. 618, 623, 524 A.2d 1168 (1987); and because the determination of the intent of the parties to a contract, such as here, is a question of fact subject to review under the clearly erroneous standard. Otto Contracting Co. v. S. Schinella & Son, Inc., supra; see Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221, 435 A.2d 24 (1980); see also Practice Book § 4061.

“ ‘[W]e note the limited role that our case law assigns to appellate review of a trial court’s broad discretion to deny or grant a prejudgment remedy. It is the trial court that must determine, in light of its assessment of the legal issues and the credibility of the witnesses, whether a plaintiff has sustained the burden of showing probable cause to sustain the validity of its claim. We decide only whether the determination of the trial court constituted clear error.’ Greenberg, Rhein & Margolis, Inc. v. Norris-Faye Horton Enterprises, Inc., 218 Conn. 162, 166, 588 A.2d 185 (1991).” TIE Communi cations, Inc. v. Kopp, 218 Conn. 281, 287, 589 A.2d 329 (1991). “The court’s role on review of the granting of a prejudgment remedy is very circumscribed. It is not to duplicate the trial court’s weighing process, but rather to determine whether its conclusion was reasonable. In the absence of clear error, this court should not overrule the thoughtful decision of the trial court, which has had an opportunity to assess the legal issues which may be raised and to weigh the credibility of at least some of the witnesses. . . .” (Citations omitted; internal quotation marks omitted.) Sweet v. Sumnerbrook Mill Development Corporation, 21 Conn. App. 191, 193, 572 A.2d 385 (1990).

For a trial court to grant the prejudgment remedy requested, the plaintiff must demonstrate the existence of “probable cause to sustain the validity of his claim.” General Statutes § 52-278d (a). It is important to remember that “[t]he plaintiff does not have to establish that he will prevail, only that there is probable cause to sustain the validity of the claim. . . .” (Citations omitted; internal quotation marks omitted.) Dow & Condon, Inc. v. Anderson, 203 Conn. 475, 479, 525 A.2d 935 (1987). “Our Supreme Court has recently had occasion to clarify the concept of 'probable cause’ as that term is used in our prejudgment remedy statutes. In Three S. Development Co. v. Santore, 193 Conn. 174, 175-76, 474 A.2d 795 (1984), the court stated: ‘ “The legal idea of probable cause is a bona fide belief in the existence of the facts essential under the law for the action and such as would warrant a man of ordinary caution, prudence and judgment, under the circumstances, in entertaining it.” Wall v. Toomey, 52 Conn. 35, 36 (1884). Probable cause is a flexible common sense standard. It does not demand that a belief be correct or more likely true than false. Texas v. Brown, 460 U.S. 730, 103 S. Ct. 1535, 75 L. Ed. 2d 502 (1983).’ ” Goodwin v. Pratt, supra, 620-21. Thus, we must determine whether the trial court’s determination that probable cause did not exist to sustain the plaintiff’s claims was clearly erroneous.

In its memorandum of decision, the trial court explained that it found that “there is no probable cause as to Carla Ahlers and Richard Ahlers, the alleged guarantors. The guarantees that they signed do not specifically refer to renewals or extensions of the lease and the [modification agreement] containing the guarantees does not itself refer to any renewals. The plaintiff presented no evidence of the intention of either party with respect to whether the guarantees would apply to renewals. The renewal document stated that the renewal was subject to the terms of the lease, but the lease did not contain the guarantees which were not given until several years after the lease was executed.” The trial court was entitled to rely on the language of the guarantee to determine the intention of the parties with regard to the lease renewal. Connecticut National Bank v. Foley, 18 Conn. App. 667, 670, 560 A.2d 475 (1989).

The plaintiff argues that probable cause exists to sustain the validity of its claim against the individual defendants because the facts demonstrate as a matter of law that the guarantee was intended to secure the lessee’s obligations under the lease renewal agreement. The plaintiff contends that the guarantors knew they were securing a renewal and not just the lease because the addendum to the original lease gave the lessee an option to renew. See Jones & Brindisi, Inc. v. Brens-law, 250 N.Y. 147, 164 N.E. 887 (1928); Houlihan v. S. Bolton’s Sons, 109 Misc. 325, 179 N.Y.S. 670 (Sup. Ct. 1919), rev’d on other grounds, 193 App. Div. 421, 183 N.Y.S. 854 (1920). According to the plaintiff, the guaranty should have expressly limited the guarantors’ liability to the original term of the lease if the guarantors did not want to be liable for the period of the renewal. See Jones & Brindisi, Inc. v. Brenslaw, supra. The plaintiff further contends that this position reflects the intentions of the parties because Carla Ahlers personally guaranteed the original lease, knew that it could be renewed, was familiar with the terms of the lease and, therefore, had notice of the possibility of renewal. Furthermore, it is argued that Richard Ahlers, as Carla Ahlers’ husband, also had notice of his liability under the guarantee should the option to renew be exercised. See id.

In response, the individual defendants maintain that the trial court correctly denied the prejudgment remedy because the guarantee is restricted as there is no language in the guarantee clause of the modification agreement indicating that the guarantee was intended to apply to a renewal. See Zero Food Storage, Inc. v. Udell, 163 So. 2d 303 (Fla. App. 1964); Woods v. Doherty, 153 Mass. 558, 27 N.E. 676 (1891). The individual defendants also point out that the lease renewal agreement does not refer to the guarantee contained in the modification agreement.

The plaintiff correctly points out that the addendum to the original lease specifically provided that the lessee may renew the lease for two five year terms, which indicates that both guarantors were aware of the possibility of an extension when they signed the modification of that lease. LeCraw v. Atlanta Arts Alliance, Inc., 126 Ga. App. 656, 191 S.E.2d 572 (1972); Houli-han v. S. Bolton’s Sons, supra. As the trial court stated, however, the modification agreement, which included the guarantee clause, refers only to the “initial term of the said Lease on January 1, 1982 and expires on December 1, 1987” and does not to refer to any lease renewal. Compare Connecticut National Bank v. Foley, supra (where the guarantee expressly stated that the guarantor was responsible for the future debt of the borrower). Furthermore, the lease renewal agreement refers only to the original lease and not the modification agreement or the guarantee contained therein. See Zero Food Storage, Inc. v. Udell, supra. These facts evidence an intention to limit the applicability of the modification agreement and its guarantee to the original term of the lease. Id., 304; Woods v. Doherty, supra, Thus, we cannot say that the trial court’s decision denying the plaintiff a prejudgment remedy against the named defendant was clearly erroneous.

The judgment is affirmed.

In this opinion the other judges concurred.

       The trial court granted the prejudgment remedy with respect to the named defendant after finding probable cause to sustain the plaintiff s claim against the named defendant in the amount of $162,662.

       Carla Ahlers formed a corporation, Tot-Ta-Trot, The Children’s Store Inc., during the time between the original lease and the modification agreement. That corporation took the place of Tot-Ta-Trot and conducted business on the leased premises involved here. This corporation was, therefore, the lessee in the modification agreement.

       The procedure for applying for a prejudgment remedy is set forth in General Statutes §§ 52-278a through 52-278n.


text:
    State of Connecticut v. Ezekial Scott
    (11412)
    Daly, Freedman and Cretella, Js.
    Argued March 30
    decision released June 22, 1993

      Michael Graham, for the appellant (defendant).

      Paul J. Ferencek, assistant state’s attorney, with whom, on the brief, were JohnM. Bailey, chief state’s attorney, and Kevin McMahon, assistant state’s attorney, for the appellee (state).
   Daly, J.

The defendant appeals from the trial court’s judgment revoking the defendant’s probation after finding that the defendant violated the terms of his probation. The defendant claims that the trial court improperly (1) determined that the defendant violated his probation without having before it the original or a certified copy of the judgment of conviction and sentence, (2) relied on a trial court clerk’s order informing the office of adult probation that the defendant is on probation in lieu of the original or certified copy of the judgment of conviction, (3) found that the defendant had signed the document containing the conditions of probation, (4) determined that the defendant violated his probation because the evidence was not sufficient to support such a finding, and (5) relied on documents from Florida. We affirm the judgment of the trial court.

The defendant’s probation revocation hearing was held on February 5, 1992. At the outset, the defendant objected on the ground that the court file did not contain a copy of the original judgment of conviction and sentence. The objection was overruled and the state produced Hilda Nieves of the office of adult probation as the only witness. Nieves testified that her office was assigned the defendant’s case by way of an “Order Placing on Probation” which was prepared by the clerk’s office, signed by an assistant clerk and forwarded to Nieves’ office. Over the defendant’s objection, this order was entered into evidence under the business records exception to the hearsay rule as evidence for the purpose of establishing the defendant’s original conviction and sentence. The trial court also ruled that this evidence was admissible because hearsay is admissible in probation revocation hearings. A copy of the conditions of probation was then introduced into evidence without proof that the defendant was the signatory of the document. The state produced other documents demonstrating that Ezekial Scott had been convicted of selling cocaine in Florida during the period of the defendant’s probation. The Ezekial Scott referred to in the Florida documents had the same date of birth as does the defendant. Nieves also testified that, according to the defendant’s probation file, the defendant had met with probation officer Adele Ibsen on September 8, 1988, and had signed a “Conditions of Probation” form enumerating the conditions of his probation. This document was admitted over the defendant’s hearsay and relevancy objections. Nieves testified that in January, 1989, she inherited the defendant’s case from Ibsen.

The trial court found that the defendant had failed to comply with the following four of the five general conditions of his probation: (1) “Do not violate any criminal law of the United States, this state or any other state”; (2) “Report as a Probation Officer directs and permit the officer to visit you as circumstances require”; (3) “Keep the officer informed of your whereabouts and give immediate notice of any change in address or employment”; and (4) “Do not leave the State of Connecticut without permission.”

I

The defendant claims that before the trial court could find that he had violated the conditions of his probation, it was necessary that evidence of the original or a certified copy of the judgment of conviction and sentence be admitted into evidence. “General Statutes § 53a-32 (b) provides that no revocation of probation shall be ordered, ‘except upon consideration of the whole record and unless such violation is established by reliable and probative evidence.’ . . . ‘All that is required for revocation of probation is that the court be satisfied that the probationer has abused the opportunity given him to avoid incarceration. . . .’’’(Citation omitted.) Payne v. Robinson, 10 Conn. App. 395, 402, 523 A.2d 917 (1987), aff’d, 207 Conn. 565, 541 A.2d 504, cert. denied, 488 U.S. 898, 109 S. Ct. 242, 102 L. Ed. 2d 230 (1988). The defendant contends that the trial court lacked subject matter jurisdiction to hear this matter because the record was not “whole” within the meaning of § 53a-32 (b) where no original or certified copy of the judgment of conviction was in evidence. The defendant also argues that the probation order offered to prove the defendant’s conviction and sentence was not “reliable and probative evidence.” We disagree.

Turning to the defendant’s first argument, we note that “[t]he primary purpose of a probation revocation proceeding is to determine whether the defendant is complying with the terms of his probation.” State v. Baxter, 19 Conn. App. 304, 321, 563 A.2d 721 (1989). “ [Revocation is a continuing consequence of the original conviction from which probation was granted . . . and the inherent authority to convict and sentence a defendant flows from the authority to adjudicate a criminal cause of action, the subject matter jurisdiction over a probation revocation proceeding derives from the original presentment of the information.” (Citation omitted; internal quotation marks omitted.) State v. Carey, 222 Conn. 299, 306, 610 A.2d 1147 (1992). Thus, the trial court’s jurisdiction to decide this matter was not contingent on the court’s having before it either the original or a certified copy of the judgment of conviction and sentence.

As to the defendant’s second argument, we are not persuaded that only the original or a certified copy of the judgment of conviction and the sentence is “reliable and probative evidence” of the defendant’s conviction. “As the trier of fact, the court was charged with determining the credibility of the witnesses and the effect to be given the evidence. See State v. Egan, 9 Conn. App. 59, 69, 514 A.2d 493, cert. denied, 201 Conn. 811, 516 A.2d 886 (1986). If the record supports the trial court’s finding that the defendant failed to comply with the conditions of his probation, the trial court then had the discretion to order a revocation of the probation.” State v. Johnson, 11 Conn. App. 251, 258, 527 A.2d 250 (1987). We will not disturb the findings of the trial court absent an abuse of discretion. Id.

To prove a conviction, it is necessary to establish the existence of a valid final judgment. There is no statute that provides that the only admissible evidence of a conviction and sentence is that of the original or a certified copy of the conviction and sentence. The trial court had before it the testimony of Nieves and the probation order itself. It found the probation order to be reliable and probative evidence of the defendant’s conviction and sentence. We find that the trial court did not abuse its discretion by relying on the evidence produced.

II

The defendant next claims that the trial court improperly admitted into evidence under the business records exception to the hearsay rule; General Statutes § 52-180; the order of the Superior Court placing the defendant on probation. “General Statutes § 52-180 requires that evidence proffered under the business records exception to the hearsay rule satisfy three requirements: ‘(1) that the record was made in the regular course of business; (2) that it was the regular course of the business to make the writing; and (3) that the writing was made at the time of the transaction or occurrence or within a reasonable time thereafter. General Statutes § 52-180; Emhart Industries, Inc. v. Amalgamated Local Union 376, U.A.W., 190 Conn. 371, 383-84, 461 A.2d 422 (1983).’ LaFaive v. DiLoreto, 2 Conn. App. 58, 62-63, 476 A.2d 626, cert. denied, 194 Conn. 801, 477 A.2d 1021 (1984).” State v. Waterman, 7 Conn. App. 326, 341, 509 A.2d 518, cert. denied, 200 Conn. 807, 512 A.2d 231 (1986).

“The trial court is given discretion under General Statutes § 52-180 (a) to determine whether the criteria of the statute have been satisfied and, in reviewing the decision of the trial court to admit the evidence, an appellate court should construe the statute liberally.” Shuchman v. State Employees Retirement Commission, 1 Conn. App. 454, 457-58, 472 A.2d 1290 (1984). “The reliability of business records should depend upon the extent to which they are considered reliable by the party for whom they are kept.” Id., 459.

All three of the criteria enumerated in § 52-180 have been satisfied in this case. General Statutes § 54-92 provides that a “sentence to imprisonment shall be pronounced by the judge in the presence and hearing of the convicted person.” Clerks are responsible for the making of “records of all proceedings required to be recorded.” General Statutes § 51-52 (a) (2). “The order as prepared and signed by the court clerk is presumed to be accurate. State v. Lenihan, 151 Conn. 552, 554[, 200 A.2d 476] (1964).” State v. DiLeo, 28 Conn. Sup. 354, 358, 261 A.2d 547 (1969). “[T]here is no requirement that the accuracy of a business record be proved as a prerequisite to its admission.” State v. Waterman, supra, 342.

“It was within the trial court’s discretion to determine the credibility of the witnesses and the weight to be given their testimony, including the testimony of the defendant’s probation officer.” State v. Baxter, supra, 320-21. The probation order was signed by an assistant clerk of the court and was forwarded to the office of adult probation. Additionally, Nieves testified that the order was kept as a business record of the office of adult probation, placed in the file that is maintained in the regular course of business shortly after the sentence and notification. The state was entitled to rely on the presumption of accuracy.

“Furthermore, General Statutes § 52-180 (b) (1) provides that the failure to produce the person who has personal knowledge of the event recorded will not affect the admissibility of a document, although that failure may affect the weight to be accorded to it.” Shuchman v. State Employees Retirement Commission, supra; E. Paul Kovacs & Co. v. Alpert, 180 Conn. 120, 127, 429 A.2d 829 (1980). Thus, the fact that Nieves was not the person who created the document is of no moment. The trial court did not abuse its discretion in admitting the probation order into evidence as a business entry under § 52-180.

III

The defendant also claims that there was no evidence that the defendant signed the conditions of probation. Nieves testified that her predecessor, Adele Ibsen, made a note in the defendant’s file that she had reviewed with the defendant the conditions of probation during their initial interview, presumably, to comply with the provisions of General Statutes § 54-108. We note that § 54-108 does not require that the defendant’s signature be on the conditions of probation, but only that the defendant be advised as to the conditions of his probation.

Even if § 54-108 did require a signature on the document containing the conditions of probation, the requirements of § 52-180 are satisfied here. The document was admissible and disclosed the signature of an Ezekial Scott. The trial court was entitled to infer it was the defendant’s signature.

IV

The defendant maintains that there was insufficient evidence to sustain the finding of a violation of probation. “A revocation of probation hearing has two distinct components and two purposes. A factual determination by a trial court as to whether a probationer has violated a condition of probation must first be made. If a violation is found, a court must next determine whether probation should be revoked because the beneficial aspects of probation'are no longer being served. Black v. Romano, [471 U.S. 606, 611, 105 S. Ct. 2254, 85 L. Ed. 2d 636 (1985)]; United States v. Cza-jak, 909 F.2d 20, 22 (1st Cir. 1990). The former component requires that a fact be found by the trial court and the latter requires the exercise of the sound discretion of the trial court. United States v. Harris, 612 A.2d 198, 203 (D.C. App. 1992).” State v. Davis, 29 Conn. App. 801, 805, 618 A.2d 74, cert. granted, 225 Conn. 918, 623 A.2d 1024 (1993).

We may reverse the trial court’s initial factual determination that a condition of probation has been violated only if we determine that such a finding was clearly erroneous. Id., 805. “Where the factual basis of the court’s decision is challenged, we must determine whether the finding challenged is supported by the evidence or whether it is clearly erroneous because it is not supported by the evidence. See Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980). In making this determination, every reasonable presumption must be given in favor of the trial court’s ruling. State v. Amarillo, 198 Conn. 285, 313-14, 503 A.2d 146 (1986).” State v. Davis, supra, 806.

Nieves testified that she had informed the defendant on April 26, 1989, to report to her in four weeks on May 31, 1989, but that he failed to do so. She also chronicled her efforts to locate him at his former place of employment, at his last known address and through telephone contact with his mother in New York City. All of these efforts were unsuccessful. Nieves eventually learned from a Federal Bureau of Investigation computer check that the defendant had been arrested and convicted in Florida for selling cocaine and that he was, at that time, incarcerated on New York’s Ryker’s Island for a conviction in that state. The defendant was brought back to Connecticut and served with a warrant. The evidence of a New York conviction indicated that the defendant had left this state without permission. Thus, we find that the trial court was not clearly erroneous when it found that the defendant had violated the conditions of his probation.

V

The defendant finally argues that the trial court improperly received into evidence certified court papers demonstrating the defendant’s conviction in the state of Florida in violation of the general condition that the defendant not violate the criminal laws of any other state. Over the defendant’s relevancy and hearsay objections, the court admitted in evidence a certified copy of the Florida judgment of conviction for the sale of cocaine. In light of our disposition of the other claims, it is unnecessary to address the evidence of the Florida conviction given that there was evidence that he had also violated a criminal law in New York.

Nevertheless, it was reasonable for the trial court to infer that the Ezekial Scott convicted in Florida was the defendant, especially in view of the personal data of the defendant, including his date of birth, that had been included in the computer check and that matched that of the Ezekial Scott convicted of selling cocaine in Florida.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant pleaded guilty to robbery in the first degree, a violation of General Statutes § 53a-134 (a) (3) and, after successfully completing a drug treatment program, was sentenced on July 1, 1988, to eight years imprisonment, execution suspended and probation for five years.

       These documents included a certified copy of the memorandum of the sentence of the court, a document committing the defendant to the custody of the department of corrections in Florida, and a certified copy of the judgment and sentence.

       The document, even if it did not fall under this exception to the hearsay rule, was, as the trial court found, still admissible because in a probation revocation hearing, the trial court has the discretion to allow hearsay evidence if it is relevant, reliable and probative. State v. Baxter, 19 Conn. App. 304, 563 A.2d 721 (1989).


author: Foti, J.

text:
    State of Connecticut v. Michael Kowal
    (11815)
    Dupont, C. J., Foti and Heiman, Js.
    Argued April 29
    decision released June 22, 1993

      Richard A. Vob, with whom was James F. Rogers IV, for the appellant (defendant).

      James M. Ralls, assistant state’s attorney, with whom, on the brief, were Mary Galvin, state’s attorney, and Frank McQuade, assistant state’s attorney, for the appellee (state).
   Foti, J.

The defendant appeals from the judgment of conviction, rendered after a conditional plea of nolo contendere pursuant to General Statutes § 54-94a, of operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes § 14-227a. The defendant’s sole claim is that the trial court improperly denied his motion to suppress evidence obtained during his arrest. We affirm the judgment of the trial court.

On February 28,1992, at approximately 11:30 p.m., two Derby police officers, Salvatore Forsceno and Scott Todd, observed a motor vehicle, operated by the defendant cross the double center line of Main Street in Derby and make an abrupt right turn across two lanes of traffic onto the southbound entrance ramp of Route 8. The officers, who were several car lengths behind the defendant, followed him onto the entrance ramp and across a bridge, where the defendant took the next exit off Route 8 into Shelton. The defendant drove erratically while on the ramp and bridge. The officers were unable to position their vehicle behind the defendant’s vehicle and initiate a motor vehicle stop until they reached the exit ramp in Shelton. Upon subsequent investigation following the motor vehicle stop, the officers determined that the defendant had operated his motor vehicle in Derby under the influence of alcohol and arrested him for that offense.

In this appeal, the defendant argues that the trial court improperly denied his motion to suppress because (1) the officers’ “reasonable suspicion” that a violation of General Statutes § 14-227a had been committed was not sufficient to permit them to make an extraterritorial arrest pursuant to General Statutes § 54-lf (c), and (2) the officers were not in “immediate pursuit” of him.

The defendant asks that we differentiate between an infraction and an offense. He argues that although operating under the influence is unquestionably an offense pursuant to General Statutes § 54-lf, the police officers in this case had probable cause to believe only that he had committed an infraction and, therefore, could not make an extraterritorial arrest.

We have recently stated that the fact that a police officer may not have observed a violation before making an investigative stop is irrelevant because “a reasonable and articulable suspicion can arise from conduct that alone is not criminal.” State v. Harrison, 30 Conn. App. 108, 113, 618 A.2d 1381, cert. granted, 225 Conn. 921, 625 A.2d 824 (1993). “[T]he weaving of a vehicle in its own lane provides reasonable and articulable suspicion to justify an investigative stop to determine if the driver is, in fact, intoxicated or impaired, [and] thereby violating General Statutes § 14-227a.” Id., 113 n.4.

In this case, the conduct amply supports the trial court’s determination that the officers had a reasonable and articulable suspicion that justified their making an investigative stop. The defendant drove his motor vehicle across the double center line of Main Street in Derby. He then made an abrupt right turn across two lanes of traffic onto the southbound entrance ramp of Route 8. His erratic driving continued on the ramp and bridge, also within the town limits of Derby. The fact that the conduct observed by the arresting officers within their jurisdiction may have constituted only an infraction is irrelevant. The statute does not require that the officers establish probable cause to arrest the defendant before they leave their jurisdiction.

The defendant does not claim that police officers may not conduct investigatory stops outside of their own precincts. See State v. Kuskowski, 200 Conn. 82, 510 A.2d 172 (1986); State v. Miller, 29 Conn. App. 207, 614 A.2d 1229, cert. granted, 224 Conn. 914, 915, 617 A.2d 170 (1992). Rather, he claims that pursuant to § 54-If (c) they may do so only when in “immediate pursuit” of an offender.

“We have previously determined that the arresting officer had a reasonable and articulable suspicion to make an investigatory stop of the defendant for the defendant’s actions while in the officer’s jurisdiction. The mere fact that the actual stop and arrest occurred [in another town] will not undercut the validity of the arrest. The language of § 54-If (c) is clear. The requirement of subsection (a), therefore, is that the offense, or the actions that lead to a reasonable and articulable suspicion that an offense has or is about to be committed, occur in the officer’s jurisdiction.” State v. Harrison, supra, 116. As in Harrison, the arresting officers here conducted the investigatory stop that led to the defendant’s arrest on the basis of the defendant’s actions while he was in the officers’ jurisdiction.

In interpreting the term “immediate pursuit” as found in § 54-lf (c), the trial court applied its ordinary meaning of “to follow without delay” and found that the officers were in “immediate pursuit” of the defendant for purposes of the statute. We agree. We are unpersuaded by the defendant’s contention that the term “immediate pursuit” in § 54-If (c) should derive its definition from General Statutes § 14-283a (a) which concerns high speed chases. The defendant’s alternative claim that the common law doctrine of “hot pursuit” should control the definition of “immediate pursuit” and require either an attempted avoidance of an arrest or an awareness of a pursuit is also without merit. Police officers need not have lights flashing or sirens on to be in immediate pursuit; it suffices if the pursuit is conducted without undue delay and is accomplished at the earliest safe opportunity. No chase is required for “immediate pursuit.”

The trial court properly found that the investigatory stop satisfied the constitutional requirement of reasonable and articulable suspicion, and that the defendant’s arrest was accomplished pursuant to probable cause. The court therefore properly denied the defendant’s motion to suppress.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 54-94a provides in pertinent part: “When a defendant, prior to the commencement of trial, enters a plea of nolo contendere conditional on the right to take an appeal from the court’s denial of the defendant’s motion to suppress evidence based on an unreasonable search or seizure . . . the defendant after the imposition of sentence may file an appeal within the time prescribed by law. . . . The issue to be considered in such an appeal shall be limited to whether it was proper for the court to have denied the motion to suppress . . . .”

       General Statutes § 14-227a (a) provides: “operation while under the influence. No person shall operate a motor vehicle while under the influence of intoxicating liquor or any drug or both. A person commits the offense of operating a motor vehicle while under the influence of intoxicating liquor or any drug or both if he operates a motor vehicle on a public highway of this state or on any road of a district organized under the provisions of chapter 105, a purpose of which is the construction and maintenance of roads and sidewalks, or on any private road on which a speed limit has been established in accordance with the provisions of section 14-218a, or in any parking area for ten or more cars or on any school property (1) while under the influence of intoxicating liquor or any drug or both or (2) while the ratio of alcohol in the blood of such person is ten-hundredths of one per cent or more of alcohol, by weight.”

       General Statutes § 54-lf provides in pertinent part: “(a) . . . Peace officers ... in their respective precincts, shall arrest, without previous complaint and warrant, any person for any offense in their jurisdiction, when the person is taken or apprehended in the act or on the speedy information of others ....
      “(c) Members of any local police department . . . when in immediate pursuit of one who may be arrested under the provisions of this section, are authorized to pursue the offender outside of their respective precincts into any part of the state in order to effect the arrest. ...”

       There is no question that probable cause was necessary to justify the arrest here; however, the issue of probable cause for the arrest itself is not an issue on appeal.

       A brief investigatory stop, commonly referred to as a Terry stop; Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968); is permitted, even in the absence of probable cause, if the police have a reasonable and articulable suspicion that a person has committed or is about to commit a crime.

       General Statutes § 14-283a (a) provides: “As used in this section, ‘pursuit’ refers to an attempt by a police officer in an authorized emergency vehicle to apprehend one or more occupants of another moving motor vehicle, when the driver of the fleeing vehicle is attempting to avoid apprehension by maintaining or increasing his speed or by ignoring the police officer’s attempt to stop him.” (Emphasis added.)


author: Lavery, J.

text:
    Moshe Felsman v. Zoning Commission of the City of Bridgeport
    (11083)
    Dupont, C. J., O’Connell and Lavery, Js.

      Argued April 5
    decision released June 22, 1993

      Barbara Brazzel-Massaro, associate city attorney, with whom, on the brief, was John H. Barton, appellant (defendant).
   Lavery, J.

This appeal arises from the denial by the defendant zoning commission of the city of Bridgeport of the plaintiffs application for a special exception to permit the construction of a twelve unit apartment building with thirty on-site parking spaces in a residence C zone. The trial court sustained the plaintiffs appeal. On appeal to this court, the defendant claims that the trial court improperly (1) ruled sua sponte that the defendant’s regulations regarding special exceptions are unconstitutional, (2) ruled that the facts in this case satisfied the exception in Helbig v. Zoning Commission, 185 Conn. 294, 440 A.2d 940 (1981), and that Helbig has overruled Bierman v. Westport Planning & Zoning Commission, 185 Conn. 135, 440 A.2d 882 (1981), and (3) reversed the decision of the defendant in finding that it did not have discretion to determine the effects of parking and overintensification.

We agree that the trial court improperly found that the standards in chapter 8, § 2 (c), of the Bridgeport zoning regulations do not pass the constitutional test necessitating ascertainable standards, but we agree with the trial court that the reason stated for the denial by the defendant, that the granting of the petition would result in an “overuse of the property,” is not sustained in the record. We therefore affirm the judgment of the trial court.

The pertinent facts are as follows. On July 7, 1989, the plaintiff, Moshe Felsman, filed an application for a special exception to build a twelve unit, three story apartment house. The plaintiff sought to erect a building that he could combine for management and parking purposes with a three unit building on an adjoining lot. The property is in a residence C zone. The Bridgeport regulations permit an apartment house as a special exception. Chapter 8, § 2 (c), of the regulations directs the defendant to consider the size and intensity of the development and its effect on surrounding properties; the capacity of adjacent and nearby streets to handle peak traffic loads and hazards created by the use; the extent, nature and arrangement of parking facilities; the location of driveway entrances and exits; fire access lanes and hazards involved. The defendant is permitted by chapter 8, § 2 (c), to impose reasonable conditions and limitations on parking areas that are in excess of the requirements of the chapter. Apartment houses are also subject to chapter 16 of the Bridgeport zoning regulations which requires, inter alia, 150 square feet of parking for each apartment.

At the conclusion of a public hearing on September 25, 1989, the defendant commission voted unanimously to deny the petition stating, “the granting of this petition would result in an overuse of the property.”

The defendant appealed to the Superior Court which sustained the appeal and found: (1) the plaintiff complied with all the ascertainable regulations and standards applicable to his application; (2) the record fails to show that the plaintiffs application violated any zoning regulations; (3) chapter 8, § 2 (c), of the Bridgeport zoning regulations, when applied as standards for the granting of a special permit, “does not pass the constitutional test necessitating ascertainable standards.” Helbig v. Zoning Commission, supra, 315.

In Mobil Oil Corporation v. Zoning Commission, 30 Conn. App. 816, 819-20, 622 A.2d 1035 (1993), we said: “The terms special permit and special exception have the same legal import and can be used interchangeably. ... A special permit allows a property owner to use his property in a manner expressly permitted by the local zoning regulations. . . . The proposed use, however, must satisfy standards set forth in the zoning regulations themselves as well as the conditions necessary to protect the public health, safety, convenience, and property values. . . . Acting in this administrative capacity, the [zoning commission’s] function is to determine whether the applicant’s proposed use is expressly permitted under the regulations, and whether the standards set forth in the regulations and the statute are satisfied. (Citations omitted; internal quotation marks omitted.) A.P. & W. Holding Corporation v. Planning & Zoning Board, 167 Conn. 182, 185, 355 A.2d 91 (1974).

“The zoning commission has no discretion to deny the special exception if the regulations and statutes are satisfied. . . . When a zoning authority has stated the reasons for its actions, a reviewing court may determine only if the reasons given are supported by the record and are pertinent to the decision. . . . The zoning [commission’s] action must be sustained if even one of the stated reasons is sufficient to support it. (Citations omitted.) Daughters of St. Paul, Inc. v. Zoning Board of Appeals, 17 Conn. App. 53, 56-57, 549 A.2d 1076 (1988).” (Internal quotation marks omitted.)

The trial court determined that the stated reason, “overuse of the property,” was not sufficient to support the defendant’s decision not to grant the special exception. We agree.

The standards set forth in chapter 8, § 2 (c), do not mention “overuse of the property,” but the regulations do require the defendant to consider the intensity of a proposed use. The trial court treated the reason given by the defendant as if no reason were given and searched the record to find a basis for the defendant’s decision. A.P. & W. Holding Corporation v. Planning & Zoning Board, supra, 186. The trial court thoroughly reviewed the record and analyzed it in the light of the regulations and found nothing in the record that showed that the plaintiff did not conform to the standards set forth in the regulation. The trial court did not have to go that far. The defendant stated a reason, “overuse of the property,” but there is nothing in the record to sustain that finding. The use is permitted, all the height, side yard and setback provisions of the zoning regulations are complied with, and there is more parking provided than is required.

The word “overuse” is defined in Webster, Third New International Dictionary, as “excessive use.” Overuse of a parcel is a valid consideration for the defendant, as the zoning regulations specifically require the defendant to consider the “size and intensity of [a proposed] development and its effect upon the surrounding properties.”

In light of the contents of the record filed by the defendant, the trial court was correct in concluding that there was not substantial evidence to uphold the decision of the defendant on the basis that there was an overuse of the property. There was no evidence that the project would be too intense for the neighborhood. The only evidence was that the architect testified, “It will be very contiguous with the neighborhood as far as the architecture is concerned . . . .” There is nothing in the record to show that the defendant relied on anything other than what is in the record.

Although the members of the defendant commission were entitled to take into consideration whatever knowledge they acquire by personal observation; Gulf Oil Corporation v. Board of Selectmen, 144 Conn. 61, 66, 127 A.2d 48 (1956); there is nothing in the record of the proceedings of the defendant commission to show whether any of its members had viewed the property or had any knowledge of it. Further, there is nothing in the record to show what the defendant relied on in concluding that the granting of the application would result in overuse. “If an administrative agency chooses to rely on its own judgment it has a responsibility to reveal publicly its special knowledge and experience, to give notice of the material facts that are critical to its decision, so that a person adversely affected thereby has an opportunity for rebuttal at an appropriate stage in the administrative proceeding.” Feinson v. Conservation Commission, 180 Conn. 421, 428-29, 429 A.2d 910 (1980). We agree with the trial court that there was nothing in the record to substantiate the denial of the plaintiffs application.

We disagree, however, with the trial court’s finding that the regulations did not pass “the constitutional test necessitating ascertainable standards.”

We recently reviewed a trial court’s sua sponte determination that the regulation was impermissibly vague and, therefore, unconstitutional. Connecticut Health Facilities, Inc. v. Zoning Board of Appeals, 29 Conn. App. 1, 5-6, 613 A.2d 358 (1992). The reasoning we set forth in that opinion is equally applicable here, and we adopt it in this case: “The plaintiffs failed to argue or brief the issues of vagueness and unconstitutionality of the standards at the trial court. Rather, the trial court raised them sua sponte. In Barberino Realty & Development Corporation v. Planning & Zoning Commission, 222 Conn. 607, 620, 610 A.2d 1205 (1992), our Supreme Court stated, ‘[w]e have held that the burden of showing that regulations are unconstitutionally vague rests with the plaintiff. Russo v. East Hartford, 179 Conn. 250, 257, 425 A.2d 1282 (1979), cert. denied, 445 U.S. 940, 100 S. Ct. 1334, 63 L. Ed. 2d 773 (1980); see also Kellems v. Brown, 163 Conn. 478, 486, 313 A.2d 53 (1972), appeal dismissed, 409 U.S. 1099, 93 S. Ct. 911, 34 L. Ed. 2d 678 (1973). Moreover, the plaintiff is required to show that the regulation complained of is impermissibly vague as applied to the facts of the particular case. Bombero v. Planning & Zoning Commission, 218 Conn. 737, 743, 591 A.2d 390 (1991); see also Ghent v. Planning Commission, [219 Conn. 511, 518, 594 A.2d 5 (1991)]. The plaintiff has not met these burdens in this appeal.’

“In this case, the plaintiffs never alleged that the regulations were vague or unascertainable nor did they demonstrate that the regulations were vague as applied to the facts of this case. A zoning commission acts in an administrative capacity in its review of an application seeking a special permit use. Sheridan v. Planning Board, 159 Conn. 1, 16, 266 A.2d 396 (1969). Connect-ieut courts have never held that a zoning commission lacks the ability to exercise discretion to determine whether the general standards in the regulations have been met in the special permit process.” Connecticut Health Facilities, Inc. v. Zoning Board of Appeals, supra, 5-6.

As did the plaintiff in Connecticut Health Facilities, Inc. v. Zoning Board of Appeals, supra, the plaintiff in the present case failed to raise the issue of unconstitutional vagueness during the proceedings. For the same reasons stated in Connecticut Health Facilities, Inc., we conclude, therefore, that the trial court improperly held, sua sponte, that Bridgeport’s discretionary standards for special exceptions to the zoning regulations are unconstitutional.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff sought a special permit pursuant to chapter 8, § 2 (c), of the Bridgeport zoning regulations. Chapter 8 provides in pertinent part: “Section 2. Permitted Uses. No building or premises shall be erected or structurally altered which is arranged, intended or designed to be used, except for one or more of the following purposes:
      “(a) Any use permitted in a Residence A, Residence B or Residence BB Zone.
      “(b) If permitted as a special exception by the Zoning Board of Appeals, any use permitted in a Residence A, Residence B or Residence BB Zone as a special exception.
      “(c) Multiple family dwellings or apartment houses subject to the requirements of Chapter 16 if permitted by the Zoning Commission as a Special Exception. The development of land for such apartments as defined in Section 7 of Chapter 16 shall take into account, the size and intensity of such development and its effect upon the surrounding properties; the capacity of the adjacent and nearby intersecting streets to handle peak traffic loads and hazards created by the use; the extent, nature and arrangement of parking facilities; the location of driveway entrances and exits; fire access lanes and hazards involved. The Zoning Commission in approving such development may impose reasonable conditions and limitations on the parking areas, on the front, side and rear yards to be provided in excess of the requirements of this Chapter to lessen further impact upon the neighborhood.”

       Chapter 8, § 2 (c) incorporates the requirements of chapter 16, including chapter 16, § 3, which provides in pertinent part:
      “Section 3. Parking Areas. The following provisions shall be made for such automobile parking, the designated space to be exclusive of the driveways and the lanes by which ingress and egress to and from such parking space may be obtained:
      “(a) For any apartment house as hereinafter defined, 150 square feet of parking space for each apartment.
      “(i) If there shall be any conflict between the parking requirements of this chapter as to any of the foregoing uses and the parking requirements of the Garden Apartment, Residence Apartment, Business Number 4 or Business Number 3 Zones, that provision which shall require the greater parking area shall take precedence and be controlling.”

       In its answer and return of record, the defendant states in paragraph three: “The exhibits and record described in paragraphs 1 and 2 hereof, constitute a portion of the record of and upon which the defendant Zoning Commission of the City of Bridgeport acted, except such factors as were disclosed to the defendant Zoning Commission of the City of Bridgeport by its examination of the premises described in said petition and the locality thereof immediately prior to the public hearing held by it thereon and the testimony received by the Zoning Commission at the time of the public hearing.”
      This is the pleading filed by the defendant’s attorney. There is nothing in the record to indicate a site visitation or any decision based on observation or personal knowledge.


author: O’Connell, J.

text:
    New England Investment Properties, Inc. v. Spire Realty and Development Corporation et al.
    (11177)
    O’Connell, Heiman and Freedman, Js.

      Argued March 31
    decision released June 22, 1993

      Daniel S. Fabricant, with whom, on the brief, was Jeffrey A. McChristian, for the appellant (plaintiff).

      David A. Netburn, for the appellees (defendants).
   O’Connell, J.

The plaintiff appeals from the summary judgment rendered for the defendants in this action to collect a real estate broker’s commission. The plaintiff claims that the trial court improperly held that (1) the listing agreement was unenforceable under General Statutes § 20-325a (b), and (2) the plaintiff could not invoke estoppel to preclude the defendants from relying on General Statutes § 20-325a. We affirm the judgment of the trial court.

This appeal arises from a listing agreement between the plaintiff real estate broker and the defendants regarding real property in Enfield. In November, 1989, the defendants orally agreed to pay the plaintiff a commission if it found a tenant for its property. Later that month, the plaintiff prepared and forwarded a listing agreement to the defendants but the defendants did not sign the agreement at that time. Subsequently, the plaintiff located a tenant, Pace Membership Warehouse, Inc., which entered into a lease with the defendants on November 30, 1989. The defendants did not sign the written listing agreement until January 16, 1990.

On September 16,1991, the plaintiff commenced this action after the defendants failed to pay the full commission specified in the listing agreement. On February 18, 1992, the trial court granted summary judgment in favor of the defendants, concluding that (1) the listing agreement was unenforceable because it did not satisfy the requirements of General Statutes § 20-325a (b), and (2) the defendants were not estopped from relying on § 20-325a as a defense. The plaintiff appealed.

I

The plaintiff’s first claim implicates the statutory restriction that a broker may not collect a commission unless there was a valid listing agreement in effect prior to rendering the services in question. Such agreement must “(1) be in writing, (2) contain the names and addresses of all the parties thereto, (3) show the date on which such contract was entered into . . . (^contain the conditions of such contract . . . and (5) be signed by the owner or an agent authorized to act on behalf of the owner . . . and by the real estate broker or his authorized agent.” General Statutes § 20-325a (b). It is not necessary that the listing agreement be contained in a single document. For separate documents to constitute a valid contract under the statute, however, the documents must collectively satisfy the requirements of the statute and relate to the same listing agreement. Jay Realty, Inc. v. Ahearn Development Corporation, 189 Conn. 52, 55, 453 A.2d 771 (1983); Boline v. Albert, 23 Conn. App. 688, 691, 583 A.2d 945 (1991). The plaintiff argues that the lease to Pace in conjunction with the listing agreement satisfy the statutory requirements. We do not agree.

In order for a listing agreement to satisfy the statutory mandate and provide a basis of recovery to the broker, the agreement must be in effect at the time the broker’s services are rendered. See Ditchkus Real Estate Co. v. Storm, 25 Conn. App. 51, 55-56, 592 A.2d 959, cert. denied, 220 Conn. 905, 593 A.2d 97 (1991); Currie v. Marano, 13 Conn. App. 527, 530, 537 A.2d 1036, cert. denied, 207 Conn. 809, 541 A.2d 1238 (1988). Even if the lease and the listing agreement, read together, satisfied the statute, it was necessary that both be in existence when the services were rendered. That was not the situation here.

On November 30, 1989, the last date on which the plaintiff rendered its brokerage services, the only document in existence was the lease to Pace. The listing agreement was not signed until January 16, 1990, nearly two months later. Section 20-325a (b) is mandatory and subject to strict construction. Howland v. Schweir, 7 Conn. App. 709, 714, 510 A.2d 215 (1986). Because no listing agreement was in effect when the plaintiff’s services were rendered, the plaintiff is statutorily barred from recovering a commission. “ ‘A broker who does not follow the mandate of the statute does so at his peril.’ ” Id., quoting Thornton Real Estate, Ine. v. Lobdell, 184 Conn. 228, 230-31, 439 A.2d 946 (1981); see also Real Estate Auctions, Inc. v. Senie, 28 Conn. App. 563, 570-71, 611 A.2d 452 (1992).

II

The plaintiff next argues that even if it cannot recover because the listing agreement was invalid, the defendant should be estopped from refusing to pay its commission because the facts of the case demonstrate its equitable entitlement thereto. The plaintiff’s reliance on Currie v. Marano, supra, is misplaced. In fact, Currie, which is factually similar to the present case, expressly ruled out application of the estoppel doctrine when there was no valid listing agreement. In Currie, the plaintiff was a real estate broker seeking a commission. Following the trial court’s finding that his services had been performed after his listing agreement had expired, he argued that the defendant property owners were equitably estopped from raising the plaintiff’s noncompliance with the listing statute as a defense. Id., 531.

The Currie court refused to apply estoppel for two reasons. First, a broker is expected to know the laws regulating his profession and when ignorance of those laws is the primary cause of his need for relief, the doctrine of estoppel does not apply. The court concluded that Currie should have been aware of the strict legal prerequisites to obtaining a broker’s commission and it was his ignorance of those prerequisites that was the primary reason he was seeking to apply the doctrine of estoppel. Id., 531-32. This is on all fours with the present case. Here, the plaintiff real estate broker should have been aware that the law would not permit it to recover a commission if it failed to have a valid listing agreement signed prior to rendering its services. Second, the Currie court recognized that “General Statutes § 20-325a has been strictly construed and enforced. . . . The scenario arising most commonly in cases of real estate commission claims, when there has not been compliance with the listing statute, as here, presents a fact pattern in which a real estate owner allegedly reaps the benefits of a broker’s services without paying for them. To allow recovery on . . . the plaintiff’s legal theories in the present case would nullify § 20-325a and emasculate the state’s real estate sales licensing system.” (Citations omitted.) Id., 531. For the same reasons, we reject the plaintiff’s attempt to employ equitable estoppel in this case.

The plaintiff also attempted to invoke equitable estop-pel in support of its contention that the failure of the defendants to abide by the invalid listing agreement constituted a violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110b. This claim is controlled by McCutcheon & Burr, Inc. v. Berman, 218 Conn. 512, 590 A.2d 438 (1991), in which our Supreme Court enunciated that “[t]he plaintiff’s invocation of equitable principles in support of its CUTPA claim is an attempt to effect an end run around the requirements of § 20-325a (b). . . . The plaintiff’s attempt to circumvent the requirements of § 20-325a (b) by filing a CUTPA claim must ... be denied.” Id., 530; see also Real Estate Auctions, Inc. v. Senie, supra, 573-74.

The plaintiff’s reliance on Habetz v. Condon, 224 Conn. 231, 618 A.2d 501 (1992) is unavailing. Habetz involved General Statutes § 20-429 (a), a part of the Home Improvement Act, and is not authority for a case concerning a real estate broker’s listing agreement. Real estate listing agreements “are governed exclusively by § 20-325a . . . .” (Internal quotation marks omitted.) McCutcheon & Burr, Inc. v. Berman, supra. Accordingly, analogizing to cases from other areas of law is of little value. See, e.g., William Pitt, Inc. v. Taylor, 186 Conn. 82, 84, 438 A.2d 1206 (1982) (listing contracts do not fall within the statute of frauds); Goldblatt Associates v. Panza, 24 Conn. App. 250, 253, 587 A.2d 433 (1991) (broker cannot recover in quantum meruit); Currie v. Marano, supra, 532 (broker cannot invoke equitable estoppel). Consequently, Habetz is not relevant to a construction of § 20-325a.

Ill

Practice Book § 384 provides that rendition of a summary judgment is appropriate “if the pleadings, affidavit and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Summary judgment is proper when a plaintiff real estate broker seeks to recover a judgment without a valid listing agreement. See Thornton Real Estate, Inc. v. Lobdell, supra.

The judgment is affirmed.

In this opinion the other judges concurrred.

       There are two defendants in this case, Spire Realty and Development Corporation (Spire Corporation) and Spire Realty of Enfield Associates Limited Partnership (Spire Enfield). Spire Enfield is a limited partnership formed and organized by Spire Corporation in January, 1990.

       General Statutes § 20-325a (b) provides: “No person, licensed under the provisions of this chapter, shall commence or bring any action in respect of any acts done or services rendered after October 1, 1971, as set forth in subsection (a), unless such acts or services were rendered pursuant to a contract or authorization from the person for whom such acts were done or services rendered. To satisfy the requirements of this subsection any such contract or authorization shall (1) be in writing, (2) contain the names and addresses of all the parties thereto, (3) show the date on which such contract was entered into or such authorization given, (4) contain the conditions of such contract or authorization and (5) be signed by the owner or an agent authorized to act on behalf of the owner only by a written document executed in the manner provided for conveyances in section 47-5, and by the real estate broker or his authorized agent.”

       At the time of the oral agreement, Spire Corporation was the optionee of the property. The agreement was contingent on Spire Corporation’s acquiring title to the property, which it did on January 25,1990. Spire Corporation then transferred the property to Spire Enfield.

       The total commission was $225,000. Spire Corporation made $25,000 payments to the plaintiff on April 1, 1990, and October 11, 1990.