author: Landau, J.

text:
    Helen Bosley et al. v. Zoning Board of Appeals of the City of New Haven et al.
    (11238)
    Dupont, C. J., Landau and Freedman, Js.
    Argued January 11 —
    decision released April 6, 1993

      Philip W. Ball, for the appellant (plaintiff).

      Peter M. Sipples, with whom were Richard Coan and Michael Koenigsberg, for the appellee (defendant Fred Hassan, trustee).
   Landau, J.

The plaintiffs appeal from the judgment of the trial court dismissing their appeal from the decision of the defendant New Haven zoning board of appeals upholding the issuance of a certificate of zoning compliance by the zoning enforcement officer. That certificate permitted a proposed facility to be located at 54 East Ramsdell Street, New Haven, to be used for those convalescing from drug and substance abuse. On appeal to this court, the plaintiffs claim that the trial court improperly found that the intended use of the facility was for the treatment of those recovering from a medical disorder or disease, which would be permitted as a continuation of the “convalescent home” use previously granted. Because we conclude that the appeal to the board of appeals was not timely, we affirm the judgment of the trial court.

The following facts are pertinent to this appeal. In May, 1965, a special exception was granted by the zoning board of appeals permitting the establishment of a convalescent home on the subject premises. On May 9, 1989, a certificate of zoning compliance was issued by the zoning enforcement officer to permit the use of this facility for those convalescing from drug and substance abuse. On August 15,1989, an appeal of the decision granting the certificate was taken to the board of appeals. The current property owners objected to the hearing on the ground that the appeal was untimely. The board of appeals, however, held a hearing on September 19, 1989, and, by publication dated September 25, 1989, upheld the decision of the zoning enforcement officer. On October 13, 1989, the plaintiffs appealed the decision of the board of appeals to the Superior Court. That court determined that the plaintiff’s appeal was untimely and that the board of appeals could have dismissed the appeal on that ground, but that, “by hearing the appeal from the issuance of the certificate, the zoning board of appeals knowingly relinquished its right to argue that the appeal to it was untimely.” The trial court then addressed the merits of the plaintiff’s appeal and remanded the case to the board of appeals to consider whether the defendant’s proposed used was in conformance with the zoning regulations. The defendants then petitioned for certification to appeal the issue of timeliness to this court, which was granted. We subsequently dismissed that appeal, suo motu, for lack of a final judgment. On June 25,1991, the board of appeals considered the trial court’s remand and determined that the proposed use was permitted pursuant to the special exception granted in 1965. The board of appeals informed the trial court of its decision by letter dated October 29, 1991. On January 13, 1992, the trial court issued a supplemental decision sustaining the board of appeals’ decision that the proposed use was permitted. The present appeal ensued.

General Statutes § 8-7 provides in pertinent part: “An appeal may be taken to the zoning board of appeals by any person aggrieved or by any officer, department, board or bureau of any municipality aggrieved and shall be taken within such time as is prescribed by a rule adopted by said board, or, if no such rule is adopted by the board, within thirty days . . . .” We recently addressed this very issue in Koepke v. Zoning Board of Appeals, 30 Conn. App. 395, 398, 620 A.2d 811 (1993), where we held that “the thirty day limit of General Statutes § 8-7 is mandatory in nature and . . . any appeal not taken within thirty days is invalid.”

There is no question but that the appeal was taken ninety-eight days after the decision of the zoning enforcement officer. The New Haven zoning board of appeals had not adopted a rule regarding the time in which to appeal a decision of the zoning enforcement officer. Because the board of appeals has not adopted a specific period within which to appeal, and because the thirty day limit stated in General Statutes § 8-7 is mandatory in nature, the appeal taken by the plaintiffs from the decision of the zoning enforcement officer was untimely and the board lacked subject matter jurisdiction to hear the appeal.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiffs, Helen Bosley and Ivy Gordon, are the owners of property at 24 Ramsdell Place and 53 East Ramsdell Street, New Haven, respectively.

       The thirty day period began to run at the time of the zoning enforcement officer’s May 9, 1989 decision. See Koepke v. Zoning Board of Appeals, 30 Conn. App. 395, 402-403, 620 A.2d 811 (1993).

       Time limitations imposed by statute are jurisdictional; Harwinton Drilling & Engineering Co. v. Public Utilities Control Authority, 188 Conn. 90, 488 A.2d 210 (1982); and the failure to initiate proceedings within this time limited by statute results in loss of the right to review. Country Lands, Inc. v. Swinnerton, 151 Conn. 27, 193 A.2d 483 (1963). Because the right to be heard was extinguished by the passage of time, the trial court improperly reached the issue of waiver.
      The trial court’s decision is correct, but not for the reason stated. “This court is not required to reverse a ruling of the trial court which reached a correct result, albeit for a wrong reason.” Herrmann v. Summer Plaza Corporation, 201 Conn. 263, 274, 513 A.2d 1211 (1986); Delfino v. Planning & Zoning Commission, 30 Conn. App. 454, 463, 620 A.2d 836 (1993); New London v. Zoning Board of Appeals, 29 Conn. App. 402, 409, 615 A.2d 1054 (1992); State v. Lamme, 19 Conn. App. 594, 604, 563 A.2d 1372 (1989), aff'd, 216 Conn. 172, 579 A.2d 484 (1990).


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Anthony Zampano v. L. G. DeFelice, Inc.
    (11138)
    O’Connell, Lavery and Freedman, Js.
    Argued October 27, 1992 —
    decision released April 6, 1993

      Derby F. Anderson, with whom was Gregory Willis, for the appellant (named defendant).

      Elizabeth Buekmir, for the appellee (third party defendant).
   Per Curiam.

The named defendant, L. G. DeFelice, Inc. (DeFelice), appeals from the dismissal of its third party complaint against the intervening plaintiff and third party defendant, Globe Steel Erectors, Inc. (Globe). Subsequent to oral argument before this court, however, the trial court permitted DeFelice to amend its answer to Globe’s intervening complaint to assert the allegations of its dismissed complaint as a counterclaim against Globe. Because DeFelice now has the opportunity to pursue its claims against Globe by way of the counterclaim, the question of whether the trial court properly dismissed DeFelice’s third party complaint against Globe for insufficiency of service of process is moot.

“The existence of an actual controversy is an essential jurisdictional prerequisite. . . . It is not the province of our courts to decide moot questions, the determination of which cannot result in the granting of actual or practical relief. ... In the absence of an actual and existing controversy for us to adjudicate in any sense of the term, the courts of this state may not be used as a vehicle to obtain judicial opinions on points of law.” (Citations omitted.) Fromer v. Tree Warden, 26 Conn. App. 599, 600, 602 A.2d 1060 (1992).

Now that the trial court has permitted DeFelice to pursue the identical claims it raised in its dismissed complaint by way of the counterclaim, no practical relief would seem to flow to DeFelice from a decision in this appeal from the dismissal of the complaint. In fact, during oral argument before this court, the parties stipulated that this appeal would be moot if the trial court permitted DeFelice’s counterclaim to come into the case. Nonetheless, in a statement to this court properly filed pursuant to Practice Book § 4006, DeFelice claims that this appeal is not moot because there exists the possibility that Globe may raise a statute of limitations defense to the counterclaim that, presumably, would not be equally applicable to the complaint. Such future events, however, remain speculative and hypothetical at this point. The present state of the record convinces us that there is no “actual and existing controversy for us to adjudicate.” Id.

Should future events show that DeFelice can obtain judicial relief only by proceeding on the third party complaint that is the subject of this appeal, then DeFelice may include its claims in any appeal from the rendition of final judgment. The filing of this appeal will be a sufficient reservation, under Practice Book § 4002 (a), of DeFelice’s right to appeal from the dismissal of the third party complaint.

The appeal is dismissed.

       The negligence action between the named plaintiff and named defendant continues to proceed in the trial court.

       Globe intervened as a plaintiff pursuant to General Statutes § 31-293 (a).

       Both the dismissed complaint and the counterclaim set forth identical allegations and causes of action sounding in negligence and indemnification.


author: O’Connell, J.

text:
    Nedra Wynn v. Metropolitan Property and Casualty Insurance Company
    (11170)
    Daly, O’Connell and Foti, Js.
    Argued January 8 —
    decision released April 6, 1993

      David C. Pite, for the appellant (plaintiff).

      Frederick L. Murólo, with whom, on the brief, was Michelle J. Blair, law student intern, for the appellee (defendant).
   O’Connell, J.

This appeal arises from the plaintiff’s application to compel the defendant, Metropolitan Property and Casualty Insurance Company, to arbitrate her claim pursuant to the underinsured motorist provision of her insurance policy. The plaintiff claims that, in denying her application, the trial court improperly (1) found that the statute of limitations was a threshold issue, (2) found that the statute of limitations had run prior to the filing of this application, and (3) failed to render a decision on her postjudgment motion to reconsider. We affirm the judgment of the trial court.

The following undisputed facts are relevant to this appeal. On July 17, 1981, the plaintiff was an insured under an automobile liability policy issued by the defendant when she was involved in an automobile accident caused by the negligence of another driver. The uninsured motorists portion of her policy provided: “Whether any person is legally entitled to collect damages, and the amount to which such person is entitled, will be determined by agreement between that person and us. Upon written request of either party any disagreement will be settled by arbitration.” The policy did not contain any time limitation for making the demand for arbitration.

On January 3,1985, the plaintiff settled her case with the tortfeasor for the limits of the tortfeasor’s policy. In 1985 and 1986, correspondence was exchanged between the plaintiff’s counsel and the defendant regarding her underinsured claim. Thereafter, the matter remained dormant until January 28,1991, nine and one-half years after the accident, when the plaintiff’s counsel wrote to the defendant requesting arbitration. On February 25,1991, the defendant denied the arbitration request on the ground that the claim was barred by the six year contract statute of limitations, General Statutes § 52-576. The plaintiff commenced this action to compel arbitration by application dated December 17,1991. The trial court denied the application and the plaintiff appealed.

I

The plaintiff first claims that the effect of the statute of limitations on her demand for arbitration was a coverage issue to be decided in arbitration and not a threshold issue for the court to decide. General Statutes § 38a-336 (c) mandates that “[e]ach automobile liability insurance policy issued on or after October 1, 1971, which contains a provision for binding arbitration shall include a provision for final determination of insurance coverage in such arbitration proceeding.” The effect of § 38a-336 (c) is, therefore, to “remove from the court and to transfer to the arbitration panel the function of determining, in the first instance, all issues as to coverage . . . Oliva v. Aetna Casualty & Surety Co., 181 Conn. 37, 42, 434 A.2d 304 (1980).

The statute was intended to make arbitration compulsory only for issues of coverage. Chmielewski v. Aetna Casualty & Surety Co., 218 Conn. 646, 657-58, 591 A.2d 101 (1991). The arbitrability of a dispute, by contrast, is a legal question for the trial court to decide as a threshold matter. Beloff v. Progressive Casualty Ins. Co., 203 Conn. 45, 54, 523 A.2d 477 (1987); Security Ins. Co. of Hartford v. DeLaurentis, 202 Conn. 178, 187, 520 A.2d 202 (1987); Oliva v. Aetna Casualty & Surety Co., supra, 39-40. Included in that legal question is “the issue of who is entitled to arbitrate a claim.” Gaudet v. Safeco Ins. Co., 219 Conn. 391, 399, 593 A.2d 1362 (1991). The court should not proceed to the merits of the claim unless it first decides that the claim is not arbitrable. Id., 399-400. Where an issue may be fairly characterized as either one of arbitrability or one of coverage, the court should submit the issue to the arbitrator. Id., 399.

The distinctions between coverage issues and arbitrability issues have not always been readily apparent. Although no bright line rule has emerged, the cases demonstrate that the hallmark of a coverage issue is that it necessarily involves an analysis of the scope of coverage as provided by the terms of the policy. Consequently, a coverage issue is one that is governed wholly by the policy language; see Security Ins. Co. of Hartford v. DeLaurentis, supra; Oliva v. Aetna Casualty & Surety Co., supra; or involves the interpretation of both statutory and policy language; see Lane v. Aetna Casualty & Surety Co., 203 Conn. 258, 265-67, 524 A.2d 616 (1987); Wilson v. Security Ins. Group, 199 Conn. 618, 623-24, 509 A.2d 467 (1986); or otherwise implicates the scope of coverage afforded by the terms of the policy. Gaudet v. Safeco Ins. Co., supra.

An issue of arbitrability, by comparison, is one that addresses the arbitrability of the claim and is capable of being decided by the court as a matter of law irrespective of the terms of the policy. In Beloff v. Progressive Casualty Ins. Co., supra, our Supreme Court recognized this distinction in holding that the question of whether the statutory duty to arbitrate coverage issues applied to motorcycle insurance policies was a threshold legal issue for the court to decide. The court explained that “[t]his appeal is distinguishable from the [coverage] cases cited in that here there is a dispute as to whether the dictates of [the statute] apply to the policies in question, not just a dispute over the scope of coverage mandated by the [statute].” Id., 54.

The present case more nearly resembles Beloff than the coverage line of cases cited. Here, there is no dispute over the scope of coverage provided by the policy. The only question is whether the plaintiff is entitled to compel arbitration. That is precisely the question the trial court is charged with deciding. See Gaudet v. Safeco Ins. Co., supra. In making that determination, the trial court did not need to interpret the policy language as the policy contained no time limitation for demanding arbitration; the court needed only to apply the statutory limitation period. Accordingly, because the issue concerned arbitrability only and because the issue was entirely dehors the policy, it was properly decided by the trial court.

II

The plaintiff next claims that even if the issue was one for the trial court to decide, the court improperly found that she failed to demand arbitration before the six year limitation period provided by General Statutes § 52-576 had run. “While the statute of limitations normally begins to run immediately upon the accrual of the cause of action, some difficulty may arise in determining when the cause or right of action is considered as having accrued. The true test is to establish the time when the plaintiff first could have successfully maintained an action.” Gaylord Hospital v. Massaro, 5 Conn. App. 465, 467, 499 A.2d 1162 (1985).

The plaintiff argues that her cause of action did not accrue until February 25, 1991, when the defendant notified her that it would not proceed to arbitration of her claim. There is no merit to this claim. The cause of action accrued, at the latest, when she had exhausted the tortfeasor’s policy on January 3,1985. See American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 195-96, 530 A.2d 171 (1987). Consequently, the plaintiff’s letter of January 28,1991, demanding arbitration was untimely.

The result of following the plaintiff’s logic would be a virtual nullification of the statute of limitations because there would be no limit as to when a plaintiff could request arbitration. The claim would be completely open ended and the function of the statute of limitations to prevent stale claims would be defeated. “The enactment of [statutes limiting the time within which an action may be brought are the result of a legitimate legislative determination which balances the rights and duties of competing groups. ... A statute of limitation or of repose is designed to (1) prevent the unexpected enforcement of stale and fraudulent claims by allowing persons after the lapse of a reasonable time, to plan their affairs with a reasonable degree of certainty, free from the disruptive burden of protracted and unknown potential liability, and (2) to aid in the search for truth that may be impaired by the loss of evidence, whether by death or disappearance of witnesses, fading memories, disappearance of documents or otherwise.” (Citation omitted; internal quotation marks omitted.) Ecker v. West Hartford, 205 Conn. 219, 239-40, 530 A.2d 1056 (1987).

In the present case, the request for arbitration was made nine and one-half years after the accident and more than six years after release of the tortfeasor. We conclude that the statute of limitations began to run no later than January 3, 1985, and that the plaintiffs attempt to resurrect the claim on January 28,1991, was barred by the statute.

Ill

The plaintiff’s final claim is that the trial court improperly failed to rule on her postjudgment motion for reconsideration. The parties stipulated that the trial court should treat this pleading as a “motion to reopen.” We will refer to it by its captioned title, “motion for reconsideration.”

The plaintiff cites no authority, nor are we aware of any, for including such a motion in the appeal of a judgment. Although we do not condone a trial court taking an inordinate amount of time to rule on any motion, an appeal is not the proper remedy. Practice Book § 4183 (l) gives this court the power to order the trial court to rule on an undecided motion. Tough v. Ives, 159 Conn. 605, 607, 268 A.2d 371 (1970) (construing former Practice Book §§ 692 and 694); W. Maltbie, Connecticut Appellate Procedure (1957) § 279.

The plaintiff’s remedy was by way of motion to this court under Practice Book § 4183 (1) for an order to compel the trial court to decide her motion for reconsideration. Accordingly, we decline to review this claim because it is not properly a part of the appeal.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 52-576 provides in pertinent part: “(a) No action for an account, or on any simple or implied contract, or any contract in writing, shall be brought but within six years after the right of action accrues >>

       General Statutes § 52-410 provides in pertinent part: “(a) A party to a written agreement for arbitration claiming the neglect or refusal of another to proceed with an arbitration thereunder may make application to the superior court .... The application shall be by writ of summons and complaint, served in the manner provided by law.”

       In view of our disposition of the appeal, it is not necessary for us to decide whether the plaintiff could have maintained her cause of action at some earlier time. See McGlinchey v. Aetna Casualty & Surety Co., 224 Conn. 133, 141 n.7 617 A.2d 445 (1992); see also Hotkowski v. Aetna Life & Casualty Co., 224 Conn. 145, 150 n.6, 617 A.2d 451 (1992).

       Practice Book § 4183 provides in pertinent part: “The supervision and control of the proceedings on appeal shall be in the court having appellate jurisdiction from the time the appeal is filed. . . : The court may, on its own motion ... or upon motion of any party, (1) order a judge to take any action pecessary to complete the trial court record for the proper presentation of the appeal. . . .”


author: Schaller, J.

text:
    Barbara Jeane Blancato et al. v. Sebastian Randino
    (11398)
    Lavery, Landau and Schaller, Js.
    Argued February 17 —
    decision released April 6, 1993

      Alexandra Davis, with whom were Mary Rebecca Knack, certified legal intern, and, on the brief, Wesley W. Horton, for the appellants (plaintiffs).

      Karen P. Blado, with whom were Medina K. Jett and, on the brief, David Sylvestre, for the appellee (defendant).
   Schaller, J.

The plaintiffs appeal from the judgment of the trial court, rendered after a jury trial, rejecting their claims of negligence and loss of consortium. The plaintiff contends that the trial court improperly (1) refused to direct a verdict in her favor, and (2) charged the jury that negligence per se is rebuttable by a showing of reasonableness. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On January 9,1988, the plaintiff, Barbara Blancato, and the defendant, Sebastian Randino, were driving their respective vehicles on Ridgewood Road in Middletown shortly after a heavy snowfall. The defendant was traveling down a hill toward a sharp curve to his right. The plaintiff had passed the curve and was heading up the hill.

Temperatures that day never rose above the freezing mark, and ice covered the surface of the road on the defendant’s side. From the crest of the hill, the defendant’s pick-up truck began to slide uncontrollably on the ice. The plaintiff stopped her car near the bottom of the hill several feet away from a driveway. Despite the defendant’s effort to maneuver his truck to the shoulder of the road, the truck slid across the center line of the road and collided with the plaintiff’s car.

The plaintiff brought this action claiming that the defendant’s negligence caused her injuries. The defendant denied these allegations and further asserted a special defense claiming that the plaintiff’s own negligence caused her injuries. The case proceeded to trial. At the conclusion of the plaintiff’s evidence, the plaintiff moved for a directed verdict. The trial court denied the motion.

The court submitted the case to the jury along with written interrogatories. The first interrogatory asked the following: “Was the collision proximately caused by the negligence of the defendant, Sebastian Randino? If you answer ‘No,’ please report that you have concluded your deliberations, and complete the defendant’s verdict form.” The jury answered “No” and returned a verdict for the defendant. The plaintiff subsequently filed a motion to set aside the verdict. The trial court denied the motion and this appeal ensued.

I

The plaintiff first claims that the trial court improperly refused to direct a verdict in her favor. We disagree. The limited nature of our review of a trial court’s refusal to direct or set aside a verdict is well settled. When reviewing the action of the trial court, we consider the evidence in the light most favorable to sustaining the judgment. Munson v. United Technologies Corporation, 28 Conn. App. 184, 191, 609 A.2d 1066 (1992). “A directed verdict is justified if on the evidence the jury could not reasonably and legally reach any other conclusion than that embodied in [a verdict for the defendant] ... or if the evidence is so weak that it would be proper for the court to set aside a verdict rendered for the other party. . . . When a jury has returned a verdict and the trial court has refused to set it aside, [t]he court’s decision will be upheld on appeal if, from the evidence presented, the jury could reasonably have concluded as it did.” (Citation omitted; internal quotation marks omitted.) Hall v. Winfrey, 27 Conn. App. 154, 157-58, 604 A.2d 1334, cert. denied, 222 Conn. 903, 606 A.2d 1327 (1992); Boehm v. Kish, 201 Conn. 385, 388-89, 517 A.2d 624 (1986).

In responding to the plaintiffs first claim, we focus on the element of causation and do not consider whether the defendant was negligent per se or otherwise negligent. Proximate cause is an essential element to any claim of negligence. Wu v. Fairfield, 204 Conn. 435, 528 A.2d 364 (1987); Tesler v. Johnson, 23 Conn. App. 536, 539-40, 583 A.2d 133 (1990), cert. denied, 217 Conn. 806, 584 A.2d 1192 (1991). “Proximate cause is ... an act or failure to act which is a substantial factor in producing a result.” Sanders v. Officers Club of Connecticut, Inc., 196 Conn. 341, 349, 493 A.2d 184 (1985). Whether proximate cause exists in a given case is ordinarily a question of fact. Trzcinski v. Richey, 190 Conn. 285, 295, 460 A.2d 1269 (1983). Further, our case law under the municipal and state highway defect statutes makes abundantly clear that a road condition may qualify as the proximate cause of an injury. See, e.g., Lukas v. New Haven, 184 Conn. 205, 207, 439 A.2d 949 (1981) (recovery for breach of statutory duty under highway defect statute requires proof by a fair preponderance that defect was sole proximate cause of injuries and damages claimed); Patrick v. Burns, 5 Conn. App. 663, 668, 502 A.2d 432 (1985), cert. denied, 198 Conn. 805, 504 A.2d 1059 (1986) (evidence of large ice patch in path of driver established that highway defect was sole proximate cause of plaintiffs injuries); cf. Beauton v. Connecticut Light & Power Co., 125 Conn. 76, 81, 3 A.2d 315 (1938) (damage caused directly and exclusively by “act of God” could not be attributed to negligence).

In this case, the jury found that the defendant’s actions did not proximately cause the plaintiff’s injuries.* * We find that the evidence fully supports the jury’s conclusion. Evidence established that the defendant’s side of the road was covered with ice. The defendant testified that he was driving under the speed limit when he suddenly encountered these treacherous road conditions. Despite his efforts and precautions, however, the defendant lost control of his truck when it slid on the ice. Based on these facts, the jury may well have found that the icy conditions, as opposed to the defendant’s act or failure to act, proximately caused the accident. See id. Thus, even if we assume the defendant’s negligence, the jury could reasonably have concluded that the layer of ice covering the road, not the defendant’s negligence, was a substantial factor causing the accident. We conclude that the trial court properly declined to direct a verdict in the plaintiffs favor.

II

The plaintiff’s second claim is that the trial court improperly instructed the jury on the law of negligence per se. The plaintiff submitted a request to charge that included instructions on the law of negligence per se. The plaintiff sought these instructions in light of evidence that the defendant had violated provisions of our General Statutes pertaining to vehicle highway use. The statutes in question concern traveling unreasonably fast, traveling on the wrong side of the road and failing to pass oncoming traffic on the right. General Statutes §§ 14-218a, 14-230 and 14-231. The court granted the plaintiff’s request and instructed the jury accordingly. The defendant objected.

In response to the defendant’s objection, the court supplemented its charge to the jury stating as follows: “[I]f one of the parties proves that the other party has violated the law, they have proven negligence per se. The burden of proof then shifts to that other party to show that there was some condition or some circumstance that prevented that party from following along. So it’s not absolute, in and of itself, the failure to follow the law.”

Our conclusion in part I that the jury reasonably could have found that any negligence on the part of the defendant was not the proximate cause of the plaintiff’s injuries is fully dispositive of the plaintiff’s claim of improper instruction. Even if we assume that the trial court improperly instructed the jury on the issue of negligence per se, the plaintiff has not explained how this instruction prejudiced her case. To the contrary, the jury’s response to the dispositive interrogatory indicates that negligence was not central to the verdict. Rather, according to the jury, the defendant’s acts or omissions were not the proximate cause of the plaintiff’s injuries. Thus, even if we assume that the negligence per se instruction was defective, it had no bearing on the verdict. We conclude that the trial court’s instructions, even if improper, did not prejudice the plaintiff. See, e.g., Kelley v. Bonney, 221 Conn. 549, 586, 606 A.2d 693 (1992) (“[e]ven if the instruction were improper, it could not have affected the result of this case”).

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff Sebastian Blancato’s claim for loss of consortium is derivative of that of the named plaintiff. We will refer to the named plaintiff as the plaintiff in this opinion.

       Regarding the element of proximate cause, we note that the difference between an action under the highway defect statutes and an ordinary negligence action is that liability under the statutes requires the defect to be the sole proximate cause of the injuries. Compare Lukas v. New Haven, 184 Conn. 205, 207, 439 A.2d 949 (1981) (sole proximate cause), with Sanders v. Officers Club of Connecticut, Inc., 196 Conn. 341, 349, 493 A.2d 184 (1985) (proximate cause defined as substantial factor). Still, the highway defect cases are instructive on the relationship between road conditions and the element of causation. For example, in Patrick v. Burns, 5 Conn. App. 663, 668, 502 A.2d 432 (1985), cert. denied, 198 Conn. 805, 504 A.2d 1059 (1986), the court held that “the jury could have reasonably concluded . . . that the [plaintiffs] loss of control of her vehicle, her crossing over the center line and, thus, her colliding with [another] vehicle was caused solely by the icefloe

       The dispositive interrogatory was phrased so as to include the elements of negligence and causation. Because the plaintiff failed to seek interrogatories which separately would have indicated the jury’s findings as to each element, we are free to assume that the jury determined that the plaintiff failed to establish either one of the two elements. Trzcinski v. Richey, 190 Conn. 285, 297, 460 A.2d 1269 (1983). As stated, we focus on the element of proximate cause without deciding the issue of whether the defendant was negligent per se.

       According to the plaintiff, the defendant admitted that his negligence proximately caused her injuries. This claim is unavailing, however, because after carefully reviewing the record and transcripts we have not uncovered any admission regarding proximate cause.

       See footnote 3, supra.


author: Daly, J.

text:
    Mobil Oil Corporation v. Zoning Commission of the Town of Stratford et al.
    (11514)
    Dupont, C. J., Daly and Lavery, Js.
    Argued February 9 —
    decision released April 6, 1993

      Richard G. Kascak, Jr., for the appellant (plaintiff).

      Kurt M. Ahlberg, assistant town attorney, for the appellees (defendants).
   Daly, J.

The plaintiff appeals from the trial court’s order remanding the case to the defendant zoning commission without directing the commission to grant the special case permit. There is no challenge to the trial court’s judgment reversing the commission’s denial of the plaintiff’s application for a special case permit to convert its gasoline station to a self-service gasoline station with an additional repair bay.

The plaintiff has been operating a gasoline station with two repair bays at the intersection of Park Avenue, Barnum Avenue, Boston Avenue and College Street in Stratford. The plaintiff’s property is located across the street from a Merit self-service gasoline station in a zoning district where full service gasoline stations are permitted. Self-service gasoline stations are permitted only as special cases. By application dated December 6, 1990, the plaintiff applied for a special case permit to convert the facility to a self-service gasoline station with three repair bays. Under the plaintiff’s plan there would be no changes made to the building on the premises but canopies would be installed over the gasoline pumps. On April 16,1991, the commission voted to request a sixty-five day extension to act on the application from the plaintiff. After the plaintiff refused the extension, the commission voted to deny the application on April 22, 1991.

Nine reasons were given for the denial: (1) Mobil failed to provide a complete, accurate and up-to-date traffic study showing how the property and streets would be affected by or support a conversion to self-service; (2) the traffic study did not include the level of service information, traffic signal data and information on turning movements necessary to make an informed decision on the project’s potential impact on existing conditions; (3) the traffic study failed to show a safe stacking plan that would not adversely affect traffic and visibility; (4) conversion to self-service would be dangerous for the heavily traveled streets as a result of the configuration of the lot and location of the pumps; (5) conversion to self-service would be a safety hazard because of the close proximity to schools, churches, shopping areas where children have a tendency to walk between waiting cars; (6) the possible stacking of cars into the streets would cause safety and fire hazards and the property is located on an ambulance route; (7) failure of the property owner and tenant to abide by and live up to the previous stipulations applied to this property; (8) the property as presently used is heavily congested, and conversion to self-service would be too intense and would create further circulation problems; (9) the stacking of cars waiting for self-service would create additional noise, smoke, odors and fumes.

The plaintiff appealed to the trial court. Because the plaintiff had provided a suitable traffic study, because no public opposition to the application arose, and because the police department had no comment on the plaintiff’s proposal, the trial court found the the first three reasons for the commission’s decision to be inadequate to support the commission’s conclusion.

Having resolved the issues in favor of the plaintiff, the trial court sustained the appeal and remanded the matter to the commission for further proceedings in accordance with its decision. We granted certification and the plaintiff appealed. The commission has not cross appealed. The sole issue before us is whether the trial court should have ordered the commission to issue the special case permit, which the trial court refused to do.

“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). The trial court determined that none of the stated reasons was sufficient to support the zoning commission’s decision not to grant the special case permit. This determination has not been challenged.

“When, on a zoning appeal, it appears that as a matter of law there was but a single conclusion which the zoning authority could reasonably reach, the court may direct the administrative agency to do or to refrain from doing what the conclusion legally requires. Watson v. Howard, 138 Conn. 464, 470, 86 A.2d 67 (1952); Executive Television Corporation v. Zoning Board of Appeals, 138 Conn. 452, 457, 85 A.2d 904 (1952); Bishop v. Board of Zoning Appeals, 133 Conn. 614, 623, 53 A.2d 659 (1947). In the absence of such circumstances, however, ‘the court upon concluding that the action taken by the administrative agency was illegal, arbitrary or in abuse of its discretion should go no further than to sustain the appeal taken from its action. For the court to go further and direct what action should be taken by the zoning authority would be an impermissible judicial usurpation of the administrative functions of the authority.’ Bogue v. Zoning Board of Appeals, 165 Conn. 749, 753-54, 345 A.2d 9 (1974); Guerriero v. Galasso, 144 Conn. 600, 608, 136 A.2d 497 (1957); Watson v. Howard, supra, 469-70.” Thorne v. Zoning Commission, 178 Conn. 198, 206, 423 A.2d 861 (1979).

In Executive Television Corporation v. Zoning Board of Appeals, supra, the defendant rejected the plaintiff’s application for a certificate of approval for a proposed gasoline station and car wash. The trial court concluded that the defendant could not have reasonably concluded that the safety of the public would be unduly imperiled. There was a gasoline station across the street from the site, as in the case before us. Our Supreme Court decided that the Court of Common Pleas improperly dismissed the appeal because the record and the findings of the Court of Common Pleas clearly demonstrated that the only reasonable conclusion of the zoning board was that the plaintiff was entitled to receive a certificate of approval. Thus, the Supreme Court concluded, the trial court should have ordered the defendant to issue the certificate.

The present case is analogous because here there was no basis for the zoning commission’s denial of the plaintiff’s special case permit application. Thus, the trial court should have ordered that the application of the plaintiff be approved “under such terms and conditions as the [commission] might reasonably prescribe” because as a matter of law the only conclusion the defendant zoning commission could reasonably reach was to grant the permit. Levine v. Zoning Board of Appeals, 124 Conn. 53, 59, 198 A. 173 (1938).

The judgment is reversed only as to the order remanding the matter for further proceedings, and the matter is remanded to the trial court with direction to render judgment directing the zoning commission to grant the special case permit under such terms and conditions as the commission might reasonably prescribe in accordance with its regulations.

In this opinion the other judges concurred.

       Section 7.1 of the zoning regulations provides that “a self-service gasoline station shall be subject to the approval of the Planning and Zoning Commission as a special case.” A special case permit is the same as a special permit or special exception.

       Before the trial court, the commission briefed only the first three reasons for denying the special case permit relating to the traffic study, and, the trial court determined that the commission had abandoned the remaining six reasons. The trial court should not have deemed the reasons abandoned because it is responsible for the review of the record in an attempt to find some basis for the commission’s action. Grillo v. Zoning Board of Appeals, 206 Conn. 362, 369, 537 A.2d 1030 (1988). In fact, the nine reasons given, with the exception of the seventh, are really versions of the first three, all relating to traffic. The seventh reason was inapplicable because, as conceded at oral argument, there was no failure to “live up to prior stipulations.”


author: Foti, J.

text:
    Marty Mirabal v. Deanne Mirabal
    (11290)
    O’Connell, Foti and Landau, Js.

      Argued February 9 —
    decision released April 6, 1993

      Barry J. Ward, for the appellant (plaintiff).

      Bernard W. Steadman, for the appellee (minor child).
   Foti, J.

The plaintiff appeals from the trial court’s denial of his motion to open and modify by vacating a child support order entered as part of a 1986 California divorce that was filed pursuant to General Statutes § 46b-70 et seq. The plaintiff claims that the trial court improperly (1) found California evidence code § 621 (c) to be a statute of limitations that barred an agreement as to nonpaternity, (2) denied his motion to modify without making any findings of fact concerning cohabitation based on California law, (3) held that the California judgment satisfied the definition of a foreign judgment pursuant to General Statutes § 46b-70, and (4) construed California law to impose a two year statute of limitations on the question of paternity. We agree with both parties* that the California judgment did not satisfy the definition of a foreign judgment under § 46b-70 and find that issue to be dispositive.

The following undisputed facts are relevant to this appeal. On February 27, 1986, the marriage of the named parties was dissolved in the Superior Court of California, county of Solano. The judgment granted the parties “joint legal custody of the minor child, Brian Mirabal, [with] sole physical custody to [Deanne Mirabal], with reasonable visitation to [Marty Mirabal].” The plaintiff was ordered to pay $288 per month as child support. Although the defendant, Deanne Mirabal, had been served with notice by mail, she did not appear in that proceeding. The plaintiff was represented by counsel.

Subsequently, the plaintiff moved to Connecticut and filed the judgment with the Superior Court in Connecticut. At some point in 1991, the plaintiff obtained information that the child was not his son. Thereafter, on October 9,1991, the plaintiff moved to open and modify the judgment. The plaintiff asked the court to terminate the support order, to give the defendant sole custody and to order that the child was not issue of the marriage of the parties. At the plaintiff’s request, he, the defendant and the child underwent blood tests on October 24, 1991, which determined that the plaintiff had a zero probability of being the child’s father. On January 21,1992, by agreement of the plaintiff and defendant, the court, Mihalakos, J., ordered that the child was not the issue of the marriage and appointed counsel to represent the child. On March 16,1992, the child, through his counsel, filed a motion to vacate and an objection to the modification. The plaintiff filed an objection to the child’s motion on March 25,1992. On March 30, 1992, the court, Hendel, J., after hearing arguments, granted the child’s motion to vacate and denied the plaintiff’s motion to modify. On June 25, 1992, the court filed an articulation of its decision. On July 20, 1992, a stipulation regarding rectification of the record for appeal was filed, signed by the plaintiff and his counsel, by the nonappearing defendant, and by counsel for the child. The stipulation indicates that (1) Deanne Mirabal had never resided in nor been to California; (2) the minor child was born at the hospital at the submarine base in Groton, Connecticut, and (3) Deanne Mirabal was served notice by mail regarding the California divorce but never appeared.

The trial court held that because Deanne Mirabal had been served with notice of the divorce action and the motion to modify, and both she and the plaintiff appeared before the court at the initial modification hearing, it had jurisdiction to decide the matter. We disagree.

“ ‘Jurisdiction over the person, jurisdiction over the subject-matter, and jurisdiction to render the particular judgment are three separate elements of the jurisdiction of a court. Each element of jurisdiction is dependent upon both law and fact. Facts showing the service of process in time, form, and manner sufficient to satisfy the requirements of mandatory statutes in that regard are essential to jurisdiction over the person. Facts showing that a matter involved in a suit constitutes a subject-matter consigned by law to the jurisdiction of that court are essential to jurisdiction over the subject-matter of the suit. . . .’ ” Castro v. Viera, 207 Conn. 420, 433-34, 541 A.2d 1216 (1988). Subject matter jurisdiction, unlike personal jurisdiction, cannot be conferred on the court by waiver or consent of the parties, nor can the court confer jurisdiction on itself. Id., 427-30. Such jurisdiction relates to the court’s competency to exercise power. Plasil v. Tableman, 223 Conn. 68, 80, 612 A.2d 763 (1992).

General Statutes § 46b-71 (b) consigns to the courts of this state the power to enforce, satisfy, modify, alter, amend, vacate, set aside or suspend a foreign matrimonal judgment that has been properly filed in a Connecticut court. This subject matter jurisdiction is circumscribed, however, by General Statutes § 46b-70, which defines a foreign matrimonial judgment as “any judgment, decree or order of a court of any state in the United States in an action for . . . divorce ... or dissolution of marriage, for the custody . , . or support of children . . . in which both parties have entered an appearance.” (Emphasis added.) The requirement of the entry of an appearance by both parties is a “threshold requirement for enforcement” of a foreign matrimonial judgment. Morabito v. Wachsman, 191 Conn. 92, 101, 463 A.2d 593 (1983). The language of § 46b-70 differs from that of other uniform enforcement of judgment acts; it “reflects the intent of the legislature to ensure that both parties have actual notice of an out-of-state proceeding, and to preclude adoption of foreign judgments obtained by a default in appearance. ” (Emphasis added.) Rule v. Rule, 6 Conn. App. 541, 544, 506 A.2d 1061, cert. denied, 201 Conn. 801, 513 A.2d 697 (1986); Morabito v. Wachsman, supra, 101 n.9. A trial court has no competency to exercise power over an out-of-state matrimonial judgment that does not satisfy the requirements of § 46b-70.

It is clear in this case that at the time of the dissolution proceedings, the defendant never filed an appearance in accordance with the California rules of civil procedure. Because the defendant never entered her appearance in those proceedings, the California judgment is not a “foreign matrimonial judgment” as defined by General Statutes § 46b-70 and may not be modified or vacated by a Connecticut court. Her receipt of notice and presence at the initial hearing in Connecticut on the motion for modification did not cure this jurisdictional defect. The trial court lacked subject matter jurisdiction and should have dismissed the matter. See Van Wagner v. Van Wagner, 1 Conn. App. 578, 579 n.2, 474 A.2d 110 (1984).

The judgment is reversed and the case is remanded with direction to render judgment dismissing the matter for lack of subject matter jurisdiction.

In this opinion the other judges concurred.

       General Statutes §§ 46b-70 through 46b-75 govern the enforcement of foreign matrimonial judgments. Section 46b-71 (a) provides that “[a]ny party to an action in which a foreign matrimonial judgment has been rendered, shall file, with a certified copy of the foreign matrimonial judgment, in the court in this state in which enforcement of such judgment is sought, a certification that such judgment is final, has not been modified, altered, amended, set aside or vacated and that the enforcement of such judgment has not been stayed or suspended, and such certificate shall set forth the full name and last-known address of the other party to such judgment and the name and address of the court in the foreign state which rendered such judgment.”

       The parties to this appeal are the plaintiff, Marty Mirabal, and the minor child, Brian Mirabal, through his court-appointed counsel.

       The record indicates that while the defendant may have been present at this original modification hearing, she never filed an appearance and has not appeared subsequently.

       Under the full faith and credit clause United States constitution, art. IV, § 1, the judicial proceedings of a state must be given full faith and credit in every other state. The judgment rendered in one state is entitled to full faith and credit only if it is a final judgment, not subject to modification in the state in which it was rendered. Krueger v. Krueger, 179 Conn. 488, 490, 427 A.2d 400 (1980). The full faith and credit clause does not automatically transform a foreign judgment into a valid judgment in this state; in order for a foreign judgment to constitute a valid judgment, it must be made a judgment in this state. Cahn v. Cahn, 26 Conn. App. 720, 730, 603 A.2d 759, cert. granted, 221 Conn. 924, 608 A.2d 688 (1992).


text:
    State of Connecticut v. George Lawler
    (11127)
    Foti, Lavery and Schaller, Js.
    Argued January 14 —
    decision released April 6, 1993

      Kevin C. Ferry, for the appellant (defendant).

      Carolyn K. Longstreth, assistant state’s attorney, with whom were Margaret Flynn, assistant state’s attorney, and, on the brief, John M. Bailey, state’s attorney, for the appellee (state).
   Foti, J.

The defendant appeals from the judgment of conviction, rendered after a trial to the court, of thirty-eight counts of violating the New Britain Housing Code. He claims that the trial court improperly (1) admitted evidence and (2) drew an inference from his silence. He further claims that the evidence was insufficient to sustain his conviction. We affirm the judgment of the trial court.

The defendant, George Lawler, an attorney, filed an application for a commercial loan at Connecticut National Bank (CNB) for the purpose of buying a six-family house, located at 224 Washington Street, New Britain, as an investment. Title to the property was to be held by his daughter, Maureen Parran, as trustee of the family trust. On December 11, 1986, the property was conveyed by warranty deed to Parran, a California resident, as trustee. On the same date, a mortgage note and deed on the property were executed in favor of CNB by Parran, individually and as trustee, through her mother, Frances Lawler, to whom Parran had given power of attorney, and by the defendant, George Lawler. The mortgage deed secured a loan of $90,000.

On June 19, 1989, Parran, in her individual capacity, quitclaimed her interest in the property to Walter Odermann of California. A conveyance tax of $137.50 was paid, indicating that there was a consideration of $125,000 for the transfer. At no time has a release of the CNB mortgage been recorded. The trial court took judicial notice that, at the time of the transfer to Odermann, a prosecution based on housing code violations was pending against Parran’s mother, Frances Lawler, involving the property in question, and that Frances Lawler had unsuccessfully asserted the transfer to Odermann as a defense in that action.

On April 30,1990, after receiving a complaint alleging housing code violations from Kathryn Smith, a tenant at 224 Washington Street, John Salvetti, a New Britain housing inspector, inspected Smith’s apartment and found numerous violations. Smith told Salvetti that the defendant was the agent for the property and collected the rents. Salvetti checked the land records, which disclosed that Odermann was the record owner. He then contacted Justo (Tito) Gonzalez, the superintendent of the building, whose name was furnished by-Smith. Gonzalez told Salvetti that the defendant, an attorney, was in charge of the property and handled all business related to it. Thereafter, on May 2, 1990, Salvetti sent a “notice of violation” by registered mail to the defendant as agent for Odermann. The defendant’s office accepted the notice and someone other than the defendant signed the return receipt. The defendant did not reply to this letter. On June 6, 1990, Salvetti again inspected Smith’s apartment and, finding that none of the violations had been corrected, he prepared an affidavit to begin prosecution against the defendant.

On November 28, 1990, Gonzalez went to Salvetti’s office and furnished a written statement indicating that the defendant was the manager of 224 Washington Street and had appointed Gonzalez as superintendent in June, 1989. The statement further indicated that Gonzalez had collected rent and turned over the money to the defendant until August 1989, and that the defendant had told Gonzalez to use August rent money to make repairs. Gonzalez later provided Salvetti with a rent receipt dated December 3, 1990, which stated “Paid December rent to Tito Gonzalez.” The defendant’s name also was on the receipt.

The defendant, who appeared pro se in the proceedings in the trial court, first claims that the trial court improperly admitted a bank document as an adoptive admission. He contends that the document, admitted over his objection, should have been excluded as hearsay.

The document in question, identified as an internal credit memorandum, was prepared by a CNB lending officer in accordance with bank procedures, and was kept in the ordinary course of business of the bank’s commercial lending department. The document was prepared at or near the time when the defendant made the mortgage loan application. The state offered this memorandum under the business record exception to the hearsay rule for the limited purpose of establishing the defendant’s ownership of the building. The defendant objected to the state’s offer because the witness testifying about the document lacked personal knowledge of the loan application, and because the defendant had not been shown the document during the application process. The trial court admitted the credit memorandum as a full exhibit for the limited purpose of showing ownership. Later in the proceedings, when the trial court ruled on the defendant’s motion to acquit, the trial court indicated that the same exhibit fell within the adoptive admission exception to the hearsay rule.

Unless the credit memorandum came within an exception to the hearsay rule, the document was inadmissible because it was “[a]n out-of-court statement . . . offered to establish the truth of the matters contained therein.” State v. Sharpe, 195 Conn. 651, 661, 491 A.2d 345 (1985). “To admit evidence under the business record exception to the hearsay rule, a trial court judge must find that the record satisfies each of the three conditions set forth in General Statutes § 52-180. The court must determine, before concluding that it is admissible, that the record was made in the regular course of business, that it was in the regular course of such business to make such a record, and that it was made at the time of the act described in the report, or within a reasonable time thereafter. ...” (Citations omitted; internal quotation marks omitted.) River Dock & Pile, Inc. v. O & G Industries, Inc., 219 Conn. 787, 793-94, 595 A.2d 839 (1991). To qualify a document as a business record, the party offering the evidence must present a witness who testifies that these three requirements have been met. State v. Tillman, 220 Conn. 487, 506, 600 A.2d 738 (1991), cert. denied, U.S. , 112 S. Ct. 3000, 120 L. Ed. 2d 876 (1992). It is not necessary that the record sought to be admitted was made by that witness or even that the witness was employed by the business at the time the record was made. River Dock & Pile, Inc. v. O & G Industries, Inc., supra, 794. Section 52-180 should be liberally construed, and review is limited to determining whether the trial court abused its discretion in admitting a document under that section. Id., 795. A business record admitted under § 52-180 need not have been seen by the defendant or signed or otherwise adopted by him. “[T]he statute recognizes that the trustworthiness of such documents comes from their being used for business and not for litigation.” Bell Food Services, Inc. v. Sherbacow, 217 Conn. 476, 485-86, 586 A.2d 1157 (1991), quoting Emhart Industries, Inc. v. Amalgamated Local Union 376, U.A.W., 190 Conn. 371, 389, 461 A.2d 422 (1983).

Our review of the record discloses that the state established a proper foundation for admitting the credit memorandum as a business record and met the three criteria of § 52-180. Although the trial court later characterized the memorandum as an adoptive admission, the document was properly admitted as a business record, and we may uphold its admission on that basis. State v. Lynch, 21 Conn. App. 386, 393, 574 A.2d 230, cert. denied, 216 Conn. 806, 580 A.2d 63 (1990). The weight to be given the contents of the memorandum was to be determined by the trier of fact, which in this case was the trial court. State v. Santiago, 224 Conn. 325, 332, 618 A.2d 32 (1992).

The defendant next claims that the trial court improperly drew an inference of assent from his silence. The relevant facts are as follows. During his cross-examination of Salvetti, the New Britain housing inspector, the defendant elicited testimony that Salvetti sent a “notice of violation” by certified mail to the defendant, as agent for Odermann. According to Salvetti, the certified letter was accepted at the defendant’s law office, but the defendant did not respond to it. Salvetti’s letter, admitted into evidence, was before the trial court, which noted: “This court finds it strange, almost unthinkable, that a defendant who is an attorney who has gone through one criminal prosecution with his wife on this property with a finding of guilty in January of [1990], would only a few months later do nothing upon the receipt of a notice of violation letter. Silence can be deemed a consent said the case of [State v. Leecan, 198 Conn. 517, 522, 504 A.2d 480, cert. denied, 476 U.S. 1184, 106 S. Ct. 2922, 91 L. Ed. 2d 550 (1986)].”

The defendant acknowledges that he elicited evidence of his “silence,” i.e., his failure to reply to a written communication. He challenges only the permissibility of the inference of assent drawn by the trial court. He claims that such an inference is proper only with respect to an oral statement made in the presence and hearing of an accused. We agree with the defendant that the court’s inference was unreasonable. We conclude, however, that the inference was harmless.

We accord great deference to the trial court’s rulings on the admissibility of evidence and will disturb them on appeal only upon a showing of clear abuse of discretion. State v. Erhardt, 17 Conn. App. 359, 367, 553 A.2d 188 (1989). In reviewing the trial court’s decision “we, therefore, consider whether the trial court could reasonably have concluded, on the basis of the evidence before it, that the fact of the defendant’s silence was sufficiently probative of assent to an accusatory statement to permit its admission into evidence as an admission of silence.” State v. Estrada, 26 Conn. App. 641, 652, 603 A.2d 1179, cert. denied, 221 Conn. 923, 608 A.2d 688 (1992).

In the prearrest or noncustodial setting, “[t]he rule in Connecticut is that when a statement, accusatory-in nature, made in the presence and hearing of an accused, is not denied or explained by him, it may be received into evidence as an admission on his part. State v. Leecan, [supra]; State v. Cook, 174 Conn. 73, 76, 381 A.2d 563 (1977); State v. Yochelman, 107 Conn. 148, 152, 139 A. 632 (1927). Evidence of silence in the prearrest setting may be used either as an admission or for impeachment purposes.” State v. Daniels, 18 Conn. App. 134, 138-39, 556 A.2d 1040 (1989). An inference of assent may be drawn only when no other explanation is equally consistent with silence. State v. Vitale, 197 Conn. 396, 405, 497 A.2d 956 (1985). There are a number of relevant considerations in determining the proper explanation for an actor’s silence among which are whether he heard, understood and comprehended the statement to which he did not respond. Id., 406.

The state asks that we extend this general rule to permit the drawing of an inference of assent by the defendant’s failure to respond to a written accusation, albeit not as strong an inference as might be warranted by his silence in the face of an oral accusation. The state argues that whether such an inference is proper depends on the circumstances of the case. We are unwilling to extend our general rule in this case. On the record, we cannot say that it was reasonable for the trial court to find that an inference of assent could be drawn from the defendant’s failure to respond to a written accusation of this nature. Nevertheless, this evidence of the defendant’s silence was admitted after being elicited by the defendant; he did not request that the evidence be admitted for limited use. On the basis of these and the other particular circumstances involved in this case, we cannot conclude that the trial court’s drawing of an impermissible inference was harmful.

The improper inference in this case does not involve a constitutional violation, and, therefore, the burden is on the defendant to demonstrate the harmfulness of the court’s action. State v. Harris, 182 Conn. 220, 230, 438 A.2d 38 (1980). He must show that it is more probable than not that the court’s action affected the result. State v. Pettersen, 17 Conn. App. 174, 183, 551 A.2d 763 (1988), on appeal after remand, 20 Conn. App. 288, 566 A.2d 714 (1989), cert. denied, 213 Conn. 814, 569 A.2d 550 (1990). The defendant has failed to sustain this burden. As we have pointed out, the trial court did not improperly admit this evidence of the defendant’s silence but rather may have merely drawn an impermissible inference of assent from that silence. The record is also clear that the court did not base its finding of guilt on this inference. We therefore conclude that any improper inference of assent drawn by the trial court from evidence of the defendant’s silence in the face of a written accusation was harmless.

The defendant’s last claim is that the evidence was insufficient to sustain his conviction. He specifically claims that the state failed to prove beyond a reasonable doubt that he was the owner or agent of the owner of the property in question.

“When reviewing a sufficiency of the evidence claim, we first examine the evidence in the light most favorable to upholding the . . . verdict. State v. Avis, 209 Conn. 290, 309, 551 A.2d 26 (1988), cert. denied, 489 U.S. 1097, 109 S. Ct. 1570, 103 L. Ed. 2d 937 (1989); State v. Rice, 25 Conn. App. 646, 650, 595 A.2d 947 (1991). We then determine on the basis of the facts established and the inferences that reasonably could be drawn from those facts whether the [trier] reasonably could have concluded that the cumulative effect of the evidence established the defendant’s guilt beyond a reasonable doubt. State v. Famiglietti, 219 Conn. 605, 609, 595 A.2d 306 (1991); State v. Hopes, 26 Conn. App. 367, 376, 602 A.2d 23, cert. denied, 221 Conn. 915, 603 A.2d 405 (1992). We note that the probative force of the evidence is not diminished because it consists, in whole or in part, of circumstantial evidence rather than direct evidence. State v. Robinson, 213 Conn. 243, 254, 567 A.2d 1173 (1989).” State v. Lago, 28 Conn. App. 9, 30, 611 A.2d 866, cert. denied, 223 Conn. 919, 614 A.2d 828 (1992). Our inquiry into whether the evidence in the record would support a finding of guilt beyond a reasonable doubt does not require us to ask if we believe that the evidence established guilt beyond a reasonable doubt, but rather if “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Emphasis in original.) State v. Boykin, 27 Conn. App. 558, 563-64, 609 A.2d 242, cert. denied, 223 Conn. 905, 610 A.2d 179 (1992). Once a defendant has been found guilty of the crime charged, we conduct our judicial review of all of the evidence in the light most favorable to the prosecution. Id., 564.

As a preliminary matter, we note that to establish liability under the New Britain housing code, the state had to prove that the defendant had charge, care or control of the residential premises as agent of the owner solely or with others. The state was not required to prove that the defendant was the legal or beneficial owner. Further, the issue before us is not whether the record demonstrates that the evidence sufficiently establishes that the defendant had charge, care or control of the property prior to the June 19,1989 quitclaim conveyance, but rather whether he had such charge, care or control after that date. The charging documents allege a date on or about June 6, 1990, as the date of the violations. The state having made no claim before the trial court that “legal” title was not, in fact, transferred to Odermann on June 19, 1989,* **** the narrow issue on appeal is whether the evidence presented at trial was sufficient to prove beyond a reasonable doubt that the defendant had charge, care or control of the premises as Odermann’s agent at the time the violations occurred. We conclude that it was sufficient.

Since it is necessary to determine whether the cumulative force of the evidence established the defendant’s guilt beyond a reasonable doubt; State v. Famiglietti, supra; we must review all the facts and circumstances that the court had before it, including those pertaining to events before the June 19, 1989 transfer. We note also that “[tjhere is no legal distinction between direct and circumstantial evidence so far as probative force is concerned.” State v. Little, 194 Conn. 665, 673, 485 A.2d 913 (1984).

The evidence is clear that the defendant acted as the agent of his daughter Maureen Parran, who was trustee of the family trust, when he obtained the mortgage loan and acquired the property in December, 1986. The evidence also showed that Parran, who resided in California, individually executed a power of attorney to her mother, Frances Lawler, and that the defendant, her father and an attorney, signed the mortgage note in his individual capacity. The trial court recognized that the defendant acted as agent for his trustee daughter in hiring a superintendent, collecting rents, and generally doing all that was reasonably necessary to manage the property for the family trust in place of the trustee.

Within one month after prosecution against the defendant’s wife began, the quitclaim deed was executed. The property was conveyed fully encumbered, with no release of the mortgage or discharge of the trustee’s liability. The quitclaim deed was signed by Parran, not as trustee, but individually. Five months after the quitclaim deed, in November, 1990, Gonzalez furnished Salvetti with a written statement indicating that the defendant was then the manager of the property and that Gonzalez had accepted rent on the defendant’s behalf until August, 1989. Gonzalez’ statement further indicated that the defendant directed him to use rent money collected in August, 1989, for repairs. While Gonzalez’ testimony was contradictory regarding his having collected rent for the defendant as late as December, 1990, the court did have before it a rent receipt dated December 3, 1990, and signed by Gonzalez on behalf of the defendant.

Our review is conducted without regard to the credibility of the witnesses. State v. Lynch, supra, 392. The trier of the facts determines with finality the credibility of the witnesses and the weight to be given their testimony. State v. Robinson, supra, 256. Our function in reviewing the evidence is to construe it in the light most favorable to sustaining the verdict. Viewing the evidence in that light, we then determine whether the trial court reasonably could have found that the defendant retained the charge, care or control of the premises after June 19, 1989, as agent of the legal owner and continued to retain such charge, care or control at the time of the alleged violations. “The existence of an agency relationship is a question of fact.” Beckenstein v. Potter & Carrier, Inc., 191 Conn. 120, 133, 464 A.2d 6 (1983). An essential ingredient of agency is that the agent is doing something at the request of and for the benefit of the principal. Leary v. Johnson, 159 Conn. 101, 105-106, 267 A.2d 658 (1970). We conclude that, from the evidence presented, the court reasonably could have found that the defendant was the agent of the owner of the property at the time the violations occurred.

The judgment is affirmed.

In this opinion the other judges concurred.

       The. defendant was ordered to pay a fine of $70 on each count, for a total fine of $2660.

       The appellant bears the burden of providing this court with an adequate record for review. Practice Book § 4061; State v. Ong, 30 Conn. App. 45, 50, 618 A.2d 583 (1993). Here, the trial court did not file a written memorandum of decision; the appellant relies on the oral decision of the court, as transcribed, which was not signed by the trial court judge. Practice Book § 4059 indicates that the trial court is required to state the factual basis of its oral or written decision. In the event that the trial court fails to perform its mandated duty, the appellant must file a motion with this court under either Practice Book § 4183 (1), seeking an order to compel the trial court to file a memorandum, or Practice Book § 4051, seeking an articulation. When an appellant, as here, fails to present the factual basis of the court’s decision, he has failed to provide an adequate record. State v. Rios, 30 Conn. App. 712, 715, 622 A.2d 618 (1993); Zak v. Weisman, 18 Conn. App. 16, 20, 566 A.2d 181 (1989).
      Further, the defendant’s brief fails to comply with Practice Book § 4065 “which requires the appellant to support the statement of facts with appropriate references to the record or transcript . . . .” State v. Ong, supra, 51-52. The defendant did not furnish, as an appendix to his brief, a copy of the transcript containing the oral decision of the court. The defendant did file four of the eight volumes of transcripts; the state filed the remaining four volumes. See Connecticut National Bank v. Browder, 30 Conn. App. 776, 778-79, 622 A.2d 588 (1993); State v. Rivera, 30 Conn. App. 224, 225 n.1, 619 A.2d 1146 (1993).
      While we do not condone the appellant’s noncompliance, we nevertheless choose, in this particular matter, to review his claims.

       There was no objection by the defendant to this hearsay evidence, nor to much of the hearsay evidence elicited throughout the trial.

       The defendant did respond to a second notice of violation sent by Salvetti in November, 1990. In that response, he denied being the owner or agent for the owner of the property.

       The housing code defines the term owner as “any person who, alone or jointly or severally with others: (1) Shall have legal title to any premise, dwelling or dwelling unit, with or without accompanying actual possession thereof, or (2) Shall have charge, care or control of any premise, dwelling or dwelling unit, as owner or agent of the owner, or an executor, administrator, trustee or guardian of the estate of the owner. Any such person thus representing the actual owner shall be bound to comply with the provisions of this article and of rales and regulations adopted pursuant thereto, to the same extent as if he were the actual owner.” New Britain Housing Code § 13-18.

       The state concedes that the record was insufficient for a determination by the trial court that a purchase price was not actually paid, that Odermann was not a bona fide purchaser, or that the sale was made in violation of the trust.

       In his reply brief, the defendant claims that Gonzalez’ out-of-court statements were improperly admitted as evidence. He has not claimed this as an issue on appeal, however, and may not have properly preserved this unclaimed issue by timely filing an objection in the trial court.