author: Landau, J.

text:
    Martin J. Sullivan v. Nameaug Walk-In Medical Center, P.C.
    (12498)
    Landau, Freedman and Spear, Js.
    Argued March 23
    decision released July 19, 1994

      Bruce L. Elstein, for the appellant (defendant).

      Joaquina L. Borges, with whom, on the brief, was Penny Q. Seaman, for the appellee (plaintiff).
   Landau, J.

The defendant, Nameaug Walk-In Medical Center, P.C., appeals from the trial court’s judgment of possession in favor of the plaintiff, Martin J. Sullivan. On appeal, the defendant claims that the trial court improperly held (1) that the plaintiff was entitled to the statutory relief of summary process pursuant to General Statutes § 47a-23, and (2) that the covenant of quiet enjoyment implicitly provided the plaintiff, as landlord, with a basis for termination of the parties’ lease agreement entitling the plaintiff to the statutory relief of summary process.

The following facts are relevant to this appeal. On July 7,1980, the plaintiff and First Bank signed a lease agreement for the bank’s use and occupancy of premises located in Groton. Connecticut National Bank (CNB) acquired First Bank, and CNB continued to occupy the premises. CNB assigned the lease to Walk-In Medical Care Centers of New England, Inc. (New England), who assigned the lease to the current tenant, the defendant. The plaintiff signed a consent form agreeing to the assignment between New England and the defendant. On September 2,1992, pursuant to General Statutes § 47a-23, the plaintiff filed a summary process action against the defendant for nonpayment of rent. The lease agreement did not contain a provision entitling the plaintiff to terminate the defendant’s right to possession on the basis of nonpayment of rent.

The trial court, in its memorandum of decision, held that the nonpayment of rent could not be a ground for termination of the lease pursuant to § 47a-23 (a). The trial court did, however, hold that the covenant of quiet enjoyment implicitly provided the plaintiff with a means for termination, and entered judgment of possession in favor of the plaintiff. The defendant filed this appeal.

The defendant’s first claim is that the plaintiff is not entitled to statutory relief under § 47a-23. It argues that § 47a-23, which enables a landlord to recover possession from a tenant upon the termination of a lease, cannot be invoked here because the lease lacked a provision that entitled the plaintiff, as landlord, to terminate the right of possession in the event of nonpayment of rent. The plaintiff argues that the statute applies, and should be read so as to provide that a lease may be terminated pursuant to an express provision within the lease, or for one of the seven reasons listed within the statute.

Both the plain language of the statute and Connecticut case law citing the statute make clear that the prerequisite for invoking the remedy of summary process is the termination of a lease agreement. General Statutes § 47a-23 provides in relevant part: “When the owner or lessor . . . desires to obtain possession or occupancy of any land or building . . . and (1) when a rental agreement or lease of such property . . . terminates for any of the following reasons: (A) By lapse of time; (B) by reason of any expressed stipulation therein . . . (E) nonpayment of rent when due for commercial property . . . .” This language is clear; it requires that the lease agreement first terminate according to its terms before the remedy of summary process is available to the lessor. Summary process is a statutory remedy that enables a landlord to recover possession from a tenant upon the termination of a lease. General Statutes § 47a-23. “ ‘[T]he remedy of summary process is available only when there is a lease and it has been terminated. The purpose of the action is to enable the landlord upon such termination to recover possession from the tenant. . . . Because of the summary nature of this remedy, the statute granting it has been narrowly construed and strictly followed.’ ” (Citations omitted.) Jefferson Garden Associates v. Greene, 202 Conn. 128, 143, 520 A.2d 173 (1987); Jo-Mark Sand & Gravel Co. v. Pantanella, 139 Conn. 598, 600, 96 A.2d 217 (1953); Housing Authority v. Harris, 28 Conn. App. 684, 688-89, 611 A.2d 934 (1992), aff'd, 225 Conn. 600, 625 A.2d 816 (1993). “The necessary and only basis of a summary process proceeding is that the lease has terminated. . . . A failure to pay rent when due is not itself a basis of the proceeding . . . .” (Citations omitted.) Webb v. Ambler, 125 Conn. 543, 550, 7 A.2d 228 (1939). A tenant’s failure to pay rent becomes & factor when a party claims a right to terminate on the basis of nonpayment, but does not provide a means to terminate the right to possession. Id. In this case, the lease, drafted by the plaintiff, did not contain a provision stating that the lease would terminate upon nonpayment of rent when due. Therefore, the trial court was correct in concluding that the commercial lease was not terminated by virtue of nonpayment of rent, and that § 47a-23 could not be invoked on this basis.

The defendant’s second claim is that the trial court improperly concluded that the covenant of quiet enjoyment implicitly provided the plaintiff-landlord with a basis for termination, thus, giving rise to the plaintiff’s right to pursue summary process relief. We agree with the defendant.

The trial court held, sua sponte, that the covenant of quiet enjoyment clause contained in the lease agreement made the defendant’s right of possession under the lease specifically dependent on the defendant’s payment of rent. The court therefore concluded that, because the defendant failed to pay rent, the plaintiff could declare a forfeiture, and terminate the lease in accordance with its terms, thus providing the necessary conditions for an action for summary process pursuant to § 47a-23.

“[U]nder landlord-tenant law, [it is] the right of a tenant to enforce a covenant of quiet enjoyment . . . .” Conference Center Ltd. v. TRC, 189 Conn. 212, 218, 455 A.2d 857 (1983). The covenant assures that the lessee shall have legal quiet and peaceable possession and enjoyment of the leased premises, as far as regards the lessor, or anyone lawfully claiming through or under him, or anyone asserting a title to the leased premises superior and paramount to that of the lessor. Id., 220-22; Net Realty Holding Trust v. Nelson, 33 Conn. Sup. 22, 25, 358 A.2d 365 (1976); 49 Am. Jur. 2d, Landlord and Tenant § 330 (1970). The covenant of quiet enjoyment is the obligation of the landlord “to protect his tenant relative to the tenant’s right to quiet and peaceful possession and enjoyment extends only to evictions and disturbances caused by himself or by someone with a paramount title.” Net Realty Holding Trust v. Nelson, supra, 25. The covenant of quiet enjoyment operates as a shield for the lessee in protecting his possessory interests in his leasehold; it does not serve as a sword of the landlord to terminate a lease agreement in contravention of the lessee’s possessory interests. Dave Herstein Co. v. Columbia Pictures Corp., 4 N.Y.2d 117, 120-21, 149 N.E.2d 328, 172 N.Y.S.2d 808 (1958).

We conclude then that the trial court was incorrect in holding that the covenant of quiet enjoyment implicitly provided the plaintiff with a means of terminating the defendant’s right to possession of the subject premises pursuant to General Statutes § 47a-23.

The judgment is reversed and the case is remanded with direction to render judgment for the defendant.

In this opinion the other judges concurred.

       General Statutes § 47a-23 provides in relevant part: “(a) When the owner or lessor, or his legal representative, or his attomey-at-law, or in-fact, desires to obtain possession or occupancy of any land or building, any apartment in any building, any dwelling unit, any trailer, or any land upon which a trailer is used or stands, and (1) when a rental agreement or lease of such property, whether in writing or by parol, terminates for any of the following reasons: (A) By lapse of time; (B) by reason of any expressed stipulation therein; (C) violation of the rental agreement or lease or of any rules or regulations adopted in accordance with section 47a-9 or 21-70; (D) nonpayment of rent within the grace period provided for residential property in section 47a-15a or 21-83; (E) nonpayment of rent when due for commercial property; (F) violation of section 47a-ll or subsection (b) of section 21-82; (G) nuisance, as defined in section 47a-32, or serious nuisance, as defined in section 47a-15 or 21-80; or (2) when such premises, or any part thereof, is occupied by one who never had a right or privilege to occupy such premises; or (3) when one originally had the right or privilege to occupy such premises other than under a rental agreement or lease but such right or privilege has terminated, such owner or lessor, or his legal representative, or his attomey-at-law, or in-fact, shall give notice to each lessee or occupant to quit possession or occupancy of such land, building, apartment or dwelling unit, at least five days before the termination of the rental agreement or lease, if any, or before the time specified in the notice for the lessee or occupant to quit possession or occupancy.”

       The lease did contain the following provision for default: “In the event the Lessee shall fail, refuse or neglect to make any or either of the payments provided for in this Lease, within ten (10) days of the due date thereof, then the Lessor may, at his option, pay the same in the amount or amounts of money so paid, including reasonable attorney’s fees and expenses which might have been reasonably incurred because of or in connection with such payments, together with interest . . . shall be repaid by the Lessee to the Lessor, upon the demand of the Lessor, and the payment thereof may be collected or enforced by the Lessor in the same manner as though such amount were an installment of rent specifically required by the terms of this Lease to be paid by the Lessee to the Lessor, upon the day when the Lessor demands repayment thereof or reimbursement thereof of and from the Lessee; but the election of the Lessor to make such payments shall not waive the default thus committed.”

       The trial court concluded that the “plain language of this statute indicates that a lease must be terminated in accordance with its terms before a summary process action can be brought. This section does not provide an independent method of termination for commercial leases. . . . [T]he lease does not contain a clause which expressly permits the lessor to terminate the lease for nonpayment of rent, and, therefore, the mere nonpayment of rent by the defendant cannot support the plaintiffs termination of the lease.” While the defendant agrees with this proposition, it raises this issue in connection with the trial court’s holding that the covenant of quiet enjoyment implicitly provides the lessor with a means of termination of the lease thereby invoking General Statutes § 47a-23 giving possession to the lessor.

       The trial court arrived at its conclusion without the benefit of oral arguments or briefs on this issue.

       The quiet enjoyment provision of the lease provides: “[T]he Lessee upon paying the rent and performing the covenants and agreements of the Lease shall quietly have, hold and enjoy the demised premises and all rights granted the Lessee in the Lease during the term thereof and extension thereto, if any.”

       Where a covenant of quiet enjoyment is predicated on payment of rent, as in this case, and rent has not been paid, the tenant cannot maintain an action for damages against landlord for breach of covenant of quiet enjoyment. A landlord, however, does not receive the right to terminate a lease on the basis of a quiet enjoyment clause in the agreement. Dave Herstein Co. v. Columbia Pictures Corp., supra, 4 N.Y.2d 120-21.


source: Caselaw Access Project

license: Public Domain

text:
    Gorman Construction Company, Inc. v. Planning and Zoning Commission of the Town of Avon
    (12057)
    Landau, Heiman and Schaller, Js.
    Argued November 29
    decision released July 19, 1994

      Michael A. Zizka, with whom were Robert C. Hunt, Jr., and, on the brief, Bonnie L. Amendola, for the appellant (defendant).

      J. Noxon Howard, for the appellee (plaintiff).
   Landau, J.

The defendant planning and zoning commission of the town of Avon (commission) appeals from the judgment of the trial court. That judgment sustained the appeal of the plaintiff, Gorman Construction Company, Inc. (Gorman), from the commission’s decision approving a subdivision application with conditions.

The commission claims that the trial court (1) abused its discretion in its construction and application of § 5.11.01 of the Avon subdivision regulations, (2) improperly placed on the commission the burden of proving that it was entitled to apply the express terms of its subdivision regulations, and (3) improperly struck the commission’s condition requiring public water service to the approved subdivision, while leaving the approval in force and effect in all other respects.

The facts are not in dispute. In June, 1990, Gorman, a developer, applied to the commission for approval of a residential subdivision. To assure that any proposed subdivision will be capable of providing an adequate water supply, for both household use and fire protection, § 5.11.01 of the Avon subdivision regulations requires public water supply for any subdivision within a specified distance, set out in subparagraph ii, of an existing water service. The section also provides that the commission may permit service of one or more lots with water from private wells if the commission determines that it would not be reasonably feasible to serve the lots with existing public water supply due to the elevation of the lots. The commission approved the subdivision subject to several conditions, one of which required “that the development be served by public water in a manner similar to Option F in the letter from the Avon Water Company dated August 23, 1990.” Option F contained in the water company’s letter provides for the “[installation of booster pump station by Avon Water Company for domestic needs only with provision for pumper truck supplement for fire flows during a fire.”

The commission, using the formula in the regulation, multiplied the number of lots by the constant (fifty feet), which yielded 1900 feet as the distance from a public water supply within which connection was required. An existing service line of the Avon Water Company is approximately 1600 feet from Gorman’s subdivision, bringing the subdivision within the purview of S 5.11.01.

Even though the service line of the Avon Water Company is within 1600 feet of the subdivision, it does not have the right to service the subdivision. The Connecticut Water Company’s franchise area includes the subdivision, but its facility for providing service is approximately 4500 feet away from the subdivision area. This distance is well outside the 1900 foot limit calculated according to the regulation’s formula. The commission recognized that the Avon Water Company would need to enter into a cooperative agreement with the Connecticut Water Company in order to service Gorman’s subdivision. In fact, the commission had before it a letter from the Connecticut Water Company to the town planner of Avon that stated: “The [Connecticut Water Company] would be willing to discuss the possibility of an arrangement with the Avon Water Company or the development of a community system to provide proper water service including fire protection for phase 4 and 5 of the . . . subdivision although we feel the cost of both of these alternatives would most likely exceed the costs of the extension of our system.” The commission had also received comments from both the town’s fire marshall and fire chief expressing their concerns as to the Gorman subdivision needing an adequate water supply to protect life and property from fire. Both officials considered the commission’s approval of an earlier phase of Gorman’s subdivision without requiring public water to have been a mistake. The commission approved the Gorman subdivision but imposed several conditions. On September 26, 1990, Gorman appealed from the commission’s decision to the Superior Court. On August 27,1992, the trial court sustained Gorman’s appeal and ordered that the approval of the subdivision remain in effect but without the condition imposed by the commission that Gorman provide public water. After this court’s granting of certification, the commission filed this appeal.

The commission first claims that the trial court abused its discretion in its construction and application of the regulation and improperly placed the burden of proof on the agency.

The limited scope of review in subdivision appeals is well established. “It is axiomatic that a planning commission, in passing on a [subdivision] application, acts in an administrative capacity and is limited to determining whether the plan complies with the applicable regulations. Reed v. Planning & Zoning Commission, 208 Conn. 431, 433, 544 A.2d 1213 (1988) . . . .” R. B. Kent & Son, Inc. v. Planning Commission, 21 Conn. App. 370, 373, 573 A.2d 760 (1990). The commission is entrusted with the function of interpreting and applying its zoning regulations. Toffolon v. Zoning Board of Appeals, 155 Conn. 558, 560, 236 A.2d 96 (1967); Krawski v. Planning & Zoning Commission, 21 Conn. App. 667, 670-71, 575 A.2d 1036, cert. denied, 215 Conn. 814, 576 A.2d 543 (1990). “The trial court must determine whether the commission has correctly interpreted its regulations and applied them with reasonable discretion to the facts. Pascale v. Board of Zoning Appeals, 150 Conn. 113, 117, 186 A.2d 377 (1962). The plaintiffs have the burden of showing that the commission acted improperly. Adolphson v. Zoning Board of Appeals, 205 Conn. 703, 707, 535 A.2d 799 (1988). The trial court can sustain the [plaintiff’s] appeal only upon a determination that the decision of the commission was unreasonable, arbitrary or illegal; Schwartz v. Planning & Zoning Commission, 208 Conn. 146, 152, 543 A.2d 1339 (1988); McCrann v. Town Planning & Zoning Commission, 161 Conn. 65, 70-71, 282 A.2d 900 (1971). It must not substitute its judgment for that of the zoning commission and must not disturb decisions of local commissions as long as honest judgment has been reasonably and fairly exercised. Whittaker v. Zoning Board of Appeals, 179 Conn. 650, 654, 427 A.2d 1346 (1980); Molic v. Zoning Board of Appeals, 18 Conn. App. 159, 164, 556 A.2d 1049 (1989).” Baron v. Planning & Zoning Commission, 22 Conn. App. 255, 257, 576 A.2d 589 (1990). It is an appellate court function to determine whether the judgment of the trial court was clearly erroneous or contrary to the law; appellate review excludes the retrial of the facts. Fuller v. Planning & Zoning Commission, 21 Conn. App. 340, 344, 573 A.2d 1222 (1990). The Appellate Court does not determine whether the trier of facts could have reached a conclusion other than the one reached. It looks both at the conclusion reached and the method by which it was reached to determine whether that conclusion is correct and factually supported. Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).

The commission conditionally approved Gorman’s subdivision application. In accordance with regulation § 5.11.01, which requires public water for any subdivision within a specified distance of existing public water service, the commission permitted the subdivision as long as the development was served by public water supply with the “installation of [a] booster pump by Avon Water Company . . . .” On appeal, the trial court agreed with Gorman that the regulation did not apply because a requirement that a measurement based on a connection with a public water supply outside of the franchise area was not an appropriate application of the regulation. The trial court found “[i]t is implicit in the language of the regulation that the existing public water service referred to is one which presently has the right and power to provide public water in the location in question and, in this case, is within 1,900 feet of the subdivision. The Avon Water Company does not have that right or that power.” The trial court also found that the record “on which the commission heavily relies in support of its position falls short of an indication that any . . . trade adjustment [of the service area boundary lines between the Connecticut Water Company and the Avon Water Company] is a reasonable probability.”

“Nothing in the subdivision approval statute, § 8-26, allows for the imposition of conditions upon the planning and zoning commission’s approval of a subdivision plan; the statute merely provides for the commission to ‘approve, modify and approve, or disapprove’ a subdivision application. Neither are we confronted with any local regulation of the town of [Avon] which would authorize the imposition of conditions on a subdivision approval. We have held . . . that commission action which is dependent for its proper functioning on action by other agencies over which the zoning commission has no control cannot be sustained unless the necessary action appears to be a probability. Stiles v. Town Council, 159 Conn. 212, 221, 268 A.2d 395 (1970).” Carpenter v. Planning & Zoning Commission, 176 Conn. 581, 592, 409 A.2d 1029 (1979).

We agree with the decision of the trial court. First, the finding of the trial court that the regulation does not apply will not be disturbed by this court unless the subordinate facts do not support the finding. Walls v. Planning & Zoning Commission, 176 Conn. 475, 476, 408 A.2d 252 (1979). The plain language of § 5.11.01 requires public water service if the subdivision is within the distance from “an existing water service” set out in the formula — ultimate number of lots times fifty feet equals distance of extension. While being urged by the commission to interpret “existing” as “available,” the trial court, in accordance with its obligation, determined that the natural and usual meaning of the word “existing” is “existing at the present time, having actual being, presently ready to use.” We conclude that the subordinate facts support the trial court’s finding that it was unreasonable for the commission to interpret its regulations so as to apply § 5.11.01 where the public water service that is within the prescribed distance is not one that has a franchise to sell public water to the applicant.

Even if the regulation does apply, the commission’s approval of Gorman’s subdivision was subject to a condition over which neither Gorman nor the commission has control. An agreement between the Connecticut Water Company and the Avon Water Company to service the area in the application is not within the control of the parties. There was nothing in the record that the agreement between the two water companies would “appear to be a reasonable probability.” The evidence before the commission does not rise to that level of proof that would indicate the reasonable probability of the two public water suppliers’ arriving at an agreement and thus satisfying the condition imposed by the commission. Because the condition could not reasonably be fulfilled, it must fall. Stiles v. Town Council, supra, 159 Conn. 221.

The commission next argues that the trial court improperly placed the burden of proof on the commission to prove that the public water supply requirement could be met. Because we hold that the trial court was correct in not applying § 5.11.01, we need not address this issue.

The commission’s final claim is that the trial court improperly struck the condition requiring public water service while allowing the subdivision’s approval to stand.

“The applicable provisions of General Statutes § 4-183 (g) permit the trial court to ‘affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the [agency’s] decision . . . .’When agency action is overturned, as here, because of invalid or insufficient findings, we have held that a court must ordinarily remand the matter under consideration to the agency for further consideration. Hartford v. Hartford Electric Light Co., 172 Conn. 71, 73, 372 A.2d 131 (1976); Bogue v. Zoning Board of Appeals, 165 Conn. 749, 753-54, 345 A.2d 9 (1974); Watson v. Howard, 138 Conn. 464, 470, 86 A.2d 67 (1952).” Feinson v. Conservation Commission, 180 Conn. 421, 429-30, 429 A.2d 910 (1980). In this case, the trial court held, as a matter of law, that there was only one conclusion that the commission could reasonably reach. As in Feinson, however, it is not apparent from this record that the commission may not have authority to accept the plaintiff’s application with conditions or modifications that would diminish the risk of each lot’s failing to have an adequate and dependable water supply in the form of on-site wells in lieu of public water. Citing Parish of St. Andrew’s v. Zoning Board of Appeals, 155 Conn. 350, 232 A.2d 916 (1967), Gorman posits that even though the public water condition is of no effect, and its removal is ordered, the remainder of the commission’s decision should not be invalidated. In Parish of St. Andrew’s, the zoning board, in granting a special exception, imposed a condition that was declared void on appeal. The Supreme Court opined, “[t]he imposition of a void condition . . . does not necessarily render the whole decision illegal and inefficacious. If the decision is otherwise supported by sufficient grounds as found by the board, a modification of the decision may be decreed with a view toward ending further litigation. Levine v. Zoning Board of Appeals, 124 Conn. 53, 59, 198 A. 173 [1938]. In [Parish of St. Andrew’s], the condition was not an integral part of the determination and can be separated from the grant as awarded.” Parish of St. Andrew’s v. Zoning Board of Appeals, supra, 354-55. Because, in the present case, the condition was an integral part of the determination and cannot be separated from the approval for the subdivision, a modification of the commission’s order is legally unwarranted. Thorne v. Zoning Commission, 178 Conn. 198, 206, 423 A.2d 861 (1979); Parish of St. Andrew’s v. Zoning Board of Appeals, supra, 355.

The judgment is reversed in part and the case is remanded with direction to render judgment remanding the matter to the planning and zoning commission for farther proceedings in accordance with this opinion.

In this opinion the other judges concurred.

       Avon subdivision regulations, § 5.11.01 provides in pertinent part: “Public Water Supply — shall be required to serve . . . (ii) Any subdivision within the required distance of an existing water service as determined by the following formula: ultimate number of lots times 50 feet equals distance of extension.
      “The ultimate number of lots shall be determined by multiplying the total acreage of the tract by the appropriate density factor. Distance shall be measured from the end of the existing service line along existing or proposed streets or rights of way to the nearest point in the subdivision.”

       The subject subdivision, section four, makes up the nineteen lots in this application for subdivision approval and nineteen lots in section five, a remaining portion of the lots. These account for thirty-eight lots that originally were part of a conceptual plan of eighty lots. Forty-two lots of the eighty lot subdivision were approved previously, and built on to date. Section three which was previously approved by the commission was not made subject to the public water supply.

       Even if the regulation did apply, the trial court was correct. The commission cites, quite correctly, a string of cases that hold that the burden of proof to demonstrate that it acted improperly should be placed on the party seeking to overturn the commission’s decision. It maintains that, on an appeal from the decision of a land use agency, the trial court must review the record to determine whether there is factual support for the agency’s decision. We quarrel with neither proposition. The lines of cases, however, are inapposite. Carpenter v. Planning & Zoning Commission, supra, 176 Conn. 581, and its progeny, Stiles v. Town Council, supra, 159 Conn. 212.

       General Statutes § 4-183 (g) provides: “Within thirty days after the service of the appeal, or within such further time as may be allowed by the court, the agency shall transcribe any portion of the record that has not been transcribed and transmit to the reviewing court the original or a certified copy of the entire record of the proceeding appealed from, which shall include the agency’s findings of fact and conclusions of law, separately stated. By stipulation of all parties to such appeal proceedings, the record may be shortened. A party unreasonably refusing to stipulate to limit the record may be taxed by the court for the additional costs. The court may require or permit subsequent corrections or additions to the record.”


text:
    State of Connecticut v. Frank A. Paul
    (12508)
    La very, Landau and Freedman, Js.
    Argued April 5
    decision released July 19, 1994

      Paul F. McCurdy, with whom, on the brief, was Thomas H. Kukowski, special public defender, for the appellant (defendant).

      Timothy J. Sugrue, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, Mark Brodsky, assistant state’s attorney, and WilliamBumpus, former assistant state’s attorney, for the appellee (state).
   Landau, J.

The defendant, Frank Paul, appeals from the trial court’s judgment revoking his probation and committing him to the authority of the commissioner of correction to serve the suspended portion of a sentence received for a conviction of robbery in the first degree in violation of General Statutes § 53a-134 and robbery in the third degree in violation of General Statutes § 53a-136 (a). The defendant claims that the trial court improperly (1) denied his motion for a pretrial lineup and permitted the victim to make an in-court identification in violation of his due process right, (2) admitted pretrial and in-court identifications of him, (3) admitted hearsay evidence at his probation revocation hearing, and (4) failed to apply the correct standard of proof at the defendant’s probation revocation proceeding.

The following facts are relevant to this appeal. On March, 14, 1989, the defendant was convicted of robbery in the first degree and robbery in the third degree; he was sentenced to a term of imprisonment of fifteen years, suspended after five years and five years probation. On April 29,1992, the defendant was released from incarceration and placed on probation. A probation officer reviewed the conditions of his release with the defendant, whereby, the defendant agreed, inter alia, not to violate any criminal law of the state of Connecticut.

On September 14, 1992, Wilfred LaBrecque, an eighty-six year old man, was robbed at the doorway of his apartment in West Hartford. LaBrecque was given a package by his assailant, then was hit on the head, knocked to the floor, and rendered unconscious. The assailant took LaBrecque’s wallet and keys; LaBrecque did not see his assailant’s face but was able to give police a description of his assailant. LaBrecque did not identify the defendant as his assailant until the day of the probation revocation hearing.

After an investigation of the robbery, an information was filed charging the defendant with violation of probation, and a revocation proceeding was scheduled for March 10, 1993. On March 15, 1993, after three days of testimony, the trial court found that the defendant had violated his probation in that he violated the criminal laws of the state of Connecticut. The trial court ordered the defendant’s probation revoked and ordered the defendant to serve the suspended portion of the original sentence. This appeal followed.

In determining that the defendant had violated his probation, the trial court cited State v. Davis, 29 Conn. App. 801, 618 A.2d 577 (1993), in which this court held that the reasonable satisfaction standard to be applied in probation revocation hearings required only a minimal level of certainty that the probationer had violated a condition of his probation — a level of proof below that of the fair preponderance test. Our Supreme Court in State v. Davis, 229 Conn. 285, 641 A.2d 370 (1994), held that the fair preponderance of the evidence standard is the appropriate standard of proof that the state must meet to establish a violation of a condition of probation. The Davis court remanded the case to the trial court for a new revocation hearing because, upon review of the record, it could not determine the standard of proof that the trial court had applied.

In this case, the trial court held that “the standard of proof by reliable and probative evidence requires that the trier be reasonably satisfied. Reasonable satisfaction requires only a minimal level of certainty .... There is far more than a minimal level of certainty that the defendant violated his probation by committing a criminal act violating the laws of the State of Connecticut.” Following the rule set out by this court in State v. Davis, supra, the trial court employed the incorrect standard of proof in its determination of whether the defendant violated a condition of his probation. The fact that the trial court stated that there was “far more” than a minimal level of certainty cannot be construed as a fair preponderance. This case is controlled by our Supreme Court’s decision in Davis.

The judgment is reversed and the case is remanded for a new probation revocation hearing.

In this opinion the other judges concurred.

       Because we conclude that the trial court did not apply the appropriate standard of proof to the revocation determination, which requires a reversal of the judgment, we do not address the defendant’s other claims.

       In State v. Davis, supra, 229 Conn. 302, the trial court is quoted as having stated that it was “convinced that it has heard reliable and appropriate evidence to the effect that there has been a violation of the probation condition and so a violation is found.”


author: Foti, J.

text:
    Mobil Oil Corporation v. Zoning Board of Appeals of the City of Bridgeport et al.
    (12512)
    Foti, La very and Cretella, Js.
    Argued March 25
    decision released July 19, 1994

      Ann Marie W. Kent, for the appellants (intervening defendants Stuart Rosenberg et al.).

      Richard G. Kascak, Jr., with whom, on the brief, was Serge G. Mihaly, for the appellee (plaintiff).
   Foti, J.

The intervening defendants appeal from the trial court’s judgment sustaining the plaintiff’s zoning appeal. The plaintiff, Mobil Oil Corporation, filed an application for a special exception under the zoning regulations to allow for the conversion of an existing full-service gasoline station into a self-service station with a snack shop.

The named defendant zoning board of appeals of the city of Bridgeport (board) denied the application, and the plaintiff appealed to the Superior Court. The trial court granted a motion by neighboring property owners, Stuart Rosenberg and William McCarthy, to intervene as party defendants opposing the plaintiff’s appeal. The trial court determined that the board had acted arbitrarily in denying the plaintiff’s application, and therefore sustained the plaintiff’s appeal. This court granted the intervening defendants’ petition for certification, and denied the plaintiff’s petition; the named defendant did not appeal. The intervening defendants claim that the trial court improperly (1) substituted its judgment for that of the board regarding the credibility of an expert witness, and (2) concluded that substantial evidence did not exist in the record to support the board’s findings.

The plaintiff owns a full-service gasoline station located in a light industrial zone on North Avenue in Bridgeport. The plaintiff submitted a petition for a special exception to construct a building on that site that would serve as a snack shop, to build a canopy over the pumps and to replace the existing islands with self-service islands. Two reasons were given for the board’s denial of the plaintiff’s application: “(1) the establishment of the additional convenience snack shop use together with a gasoline station would generate additional on-site traffic. The proposed on-site traffic flow pattern, with the only exit being on French Street, would cause a backing up of traffic exiting the site resulting in an improper and hazardous exiting from the site directly onto North Avenue. (2) The granting of this petition will adversely impact the already existing traffic congestion in the immediate area.”

On the plaintiff’s appeal, the trial court took judicial notice of an earlier file, Mobil Oil Corp. v. Zoning Board of Appeals, Superior Court, judicial district of Fairfield, Docket No. 274219 (April 18, 1991), concerning the same parcel of property. There, the board denied the plaintiff’s earlier application for a special exception and a variance to construct a snack shop and two self-service islands running parallel to North Avenue, which fronts the property. The sideline variance was needed in order to construct a required fire suppressive canopy over the pumps. On appeal, the trial court reversed the board as to the special exception but concluded that the board’s denial of the variance was supported by the record and, therefore, dismissed the appeal as it pertained to the variance. Rather than further appeal that decision, the plaintiff redesigned its application for a special exception to obviate the need for a variance. The new application proposed to construct the same snack shop, and four instead of two self-service islands positioned diagonally to North Avenue, making French Street the primary exit. The trial court’s judgment for the plaintiff on its appeal of the board’s denial of the special exception is now before this court.

I

As a preliminary matter, we must first consider whether the intervening defendants have standing. “The issue of standing implicates the court’s subject matter jurisdiction.” Appeal from Probate of Bencivenga, 30 Conn. App. 334, 337, 620 A.2d 195 (1993), aff’d, 228 Conn. 439, 636 A.2d 832 (1994). Standing focuses on the party seeking to be heard and not on the issues that party wants to have decided. Zoning Board of Appeals v. Planning & Zoning Commission, 27 Conn. App. 297, 300, 605 A.2d 885 (1992). The focus is on whether one is a proper party to request adjudication of the issues, rather than on the substantive rights of the aggrieved parties. Nye v. Marcus, 198 Conn. 138, 141, 502 A.2d 869 (1985). A party cannot rightfully invoke the jurisdiction of the court unless that party has some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy. Investors Mortgage Co. v. Rodia, 31 Conn. App. 476, 479, 625 A.2d 833 (1993). There must be a colorable claim that the party has suffered or is likely to suffer direct injury, in an individual or representative capacity. Maloney v. Pac, 183 Conn. 313, 321, 439 A.2d 349 (1981). “[A] personal stake in the outcome of the controversy . . . provides the requisite assurance of concrete adverseness and diligent advocacy.” (Citations omitted; internal quotation marks omitted.) Rose v. Freedom of Information Commission, 221 Conn. 217, 223-24, 602 A.2d 1019 (1992).

General Statutes § 8-8 permits abutting landowners to appeal from an adverse decision of the zoning board of appeals. General Statutes § 52-102 permits any person who claims an interest in the controversy adverse to that of the plaintiffs to be made a defendant. An applicant for intervention has a right to intervene under Practice Book § 99 where that party’s interest is of such a direct and immediate character that the applicant will either gain or lose by the direct legal operation and effect of the judgment. Horton v. Meskill, 187 Conn. 187, 195, 445 A.2d 579 (1982).

The record discloses that the intervening defendants are part owners of a business located at 555 Center Street Extension, known as Park City Tobacco. The property they own is directly adjacent to the property that is the subject of this appeal. The value of the intervening defendants’ adjacent property might be greatly affected by an increased flow of traffic, causing increased congestion and hazardous conditions. We conclude that, because of this cognizable interest, the intervening defendants have standing in this controversy to appeal the ruling of the trial court.

II

The intervening defendants first claim that the trial court improperly substituted its judgment for that of the board regarding an expert witness, and, in so doing, usurped the board’s decision making power by adjudging issues of credibility. We agree.

“It is well settled that courts are not to substitute their judgment for that of the board, and that the decisions of local boards will not be disturbed as long as honest judgment has been reasonably and fairly made after a full hearing . . . as the credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency.” (Citations omitted.) Stankiewicz v. Zoning Board of Appeals, 15 Conn. App. 729, 731-32, 546 A.2d 919 (1988), aff’d, 211 Conn. 76, 556 A.2d 1024 (1989). The court’s function is to determine on the basis of the record whether substantial evidence has been presented to the board to support its findings. Huck v. Inland Wetlands & Watercourses Agency, 203 Conn. 525, 540, 525 A.2d 940 (1987). “[Ejvidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred. . . . [I]t must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury. . . .” (Internal quotation marks omitted.) Id., 541. If even one of the reasons given by the board for its denial is supported by substantial evidence, the board’s decision must stand. Connecticut Health Facilities, Inc. v. Zoning Board of Appeals, 29 Conn. App. 1, 10, 613 A.2d 1358 (1992).

The zoning regulations of the city of Bridgeport set forth the standards including the required considerations that the zoning board of appeals must follow. On an application for special exception, the board must consider a number of elements, including the capacity of adjacent and feeder streets to handle peak traffic loads and the hazards created by the use, along with the extent, nature and arrangement of parking facilities, entrances and exits. Bridgeport Zoning Regulations, c. 21 § 2 (b).

The board had before it not only the site development and preliminary architectural plans submitted by the plaintiff, but also the defendants’ site plan showing the traffic flow, submitted in opposition to petition. The board was familiar with the area, the intersection, and the existing congestion and traffic. The board’s first reason for denying the special exception was that the plan would generate on-site traffic congestion. The traffic flow pattern would allow for exiting only onto French Street, probably resulting in on-site backup of traffic and the creation of a hazardous situation. A traffic consultant, George Koleda, testified as an expert and gave his opinion that the proposed plan would cause a backup on French Street and would lead to traffic congestion resulting in a public hazard. He further opined that the special exception would result in more cars using the site, leading to on-site congestion and a hazardous situation.

The second reason cited by the board for its denial of the special exception was that to allow the construction of the snack shop as indicated in the site plan would exacerbate the present congestion problem in the area. On this point, the board heard testimony from Koleda that the site is located in a complex five-way intersection and that vehicles exiting from nearby Route 25 would make it difficult for parties exiting from French Street to go east on North Avenue. He further noted that traffic volume on North Avenue had increased by 27 percent in the prior four years and would continue to increase at a rate of 2 percent per year. He indicated that, in his opinion, the proposed use would generate high traffic, which would create congestion and a public hazard, and that, because the sole practical means of egress was from French Street, congestion would develop that would backup into the gas station.

The trial court, in its memorandum of decision, expressed its opinion to the effect that Koleda, although an expert witness, lent nothing to the record on which the board could rely. The following single statement by the court sums up its position: “Frankly, in the court’s opinion as previously indicated, Koleda’s testimony and traffic study cannot form the basis for any reliable conclusion on the issue of traffic congestion.” The court also discounted the neighbors’ comments about the traffic congestion in the general area, but not specifically “on North Avenue as it abuts the subject parcel.” The court later concluded, “it is the court’s opinion that Koleda’s conjectures can be given little weight.”

A board can find that substantial evidence exists if the record affords a substantial basis of fact for which the fact in issue reasonably can be inferred. Vicino v. Zoning Board of Appeals, 28 Conn. App. 500, 505, 611 A.2d 444 (1992). It is not the function of the reviewing court to weigh the evidence or to determine who is credible; that function is exclusively the board’s. Horn v. Zoning Board of Appeals, 18 Conn. App. 674, 676-77, 559 A.2d 1174 (1989). The trial court’s “weighing” of Koleda’s testimony and assigning it little or no credibility was improper.

The trial court exceeded the scope of its judicial review when it determined that the evidence before the board was insufficient. The trial court, in effect, weighed the evidence and then determined an issue of fact; it, therefore, impermissibly substituted its judgment for that of the zoning board of appeals.

The judgment is reversed and the case is remanded with direction to render judgment dismissing the plaintiff’s appeal.

In this opinion the other judges concurred.

       The plaintiff also filed a cross appeal which, after a hearing by this court, was dismissed suo motu on November 23, 1993, on the ground that the plaintiff was denied certification for review as required by General Statutes § 8-8 (o).

       The plaintiff contends that the trial court abused its discretion in allowing the defendants to intervene and argues that the defendants are not “aggrieved” by the judgment of the trial court. Having been made party defendants, the defendants are aggrieved by the judgment of the trial court. The true issue on appeal is one of standing.
      Even if the trial court improperly allowed the defendants to intervene, that issue is not properly before us on appeal since that claim, raised by the plaintiff, is neither a counterstatement of an appellant’s issue nor an issue properly raised under Practice Book § 4013. The plaintiff’s failure to follow the dictates of our rules of practice provides sufficient grounds for our refusal to review the claim now raised. State v. One 1981 BMW Automobile, 15 Conn. App. 589, 598, 546 A.2d 879 (1988). For the same reasons, we decline to address the plaintiff’s claim of collateral estoppel.

       “Once the question of lack of jurisdiction of a courtis raised, ‘[it] must be disposed of no matter in what form it is presented.’ Carten v. Carten, 153 Conn. 603, 610, 219 A.2d 711 (1966).” Cross v. Hudon, 27 Conn. App. 729, 732, 609 A.2d 1021 (1992).

       General Statutes § 52-102 provides in pertinent part: “Upon motion made by any party or nonparty to a civil action, the person named in the party’s motion or the nonparty so moving, as the case may be, (1) may be made a party by the court if that person has or claims an interest in the controversy, or any part thereof, adverse to the plaintiff . . . .”

       The plaintiff argues that some type of evidentiary proof is required to support these assertions. The plaintiff can point to no requirement that dictates that the applicants had to furnish evidentiary proof supporting that statement of facts in conjunction with their motion to intervene. Further, the granting of the motion to intervene is not before us on appeal. See footnote 2.

       In addition, the defendant argues that the trial court improperly rejected the board’s authority to rely on its members’ own experience and knowledge regarding traffic congestion and safety. The trial court’s review is based on the record, which includes the knowledge of the board members gained through personal observations of the site; Torsiello v. Zoning Board of Appeals, 3 Conn. App. 47, 50, 484 A.2d 483 (1984); or through their personal knowledge of the area involved. Burnham v. Planning & Zoning Commission, 189 Conn. 261, 267, 455 A.2d 339 (1983).

         As the trial court noted, the qualifications of Koleda for purposes of testifying as an expert were not attacked or questioned at the hearing. The trial court accepted Koleda’s testimony as being that of an expert witness.


author: Dupont, C. J.

text:
    Teresa Martins, Conservatrix (Estate of Carlos Martins) et al. v. Connecticut Light and Power Company
    (12165)
    Dupont, C. J., and Foti, La very, Landau, Freedman, Schaller, and Spear, Js.

      Argued January 11
    decision released June 14, 1994

      Carey B. Reilly, with whom, on the brief, was Richard A. Fuchs, for the appellant (plaintiff).

      Maureen Danehy Cox, with whom, on the brief, were James K. Robertson, Jr., and Giovanna M. Tiberii, for the appellee (defendant).
   Dupont, C. J.

The plaintiff is appealing from the judgment for the defendant, the Connecticut Light and Power Company (CL&P), in a negligence action, rendered in accordance with a jury verdict. She claims that a new trial must be ordered because the trial court improperly (1) excluded evidence of allegedly similar prior accidents, and (2) allowed the defendant to challenge peremptorily a prospective juror on the basis of gender. Because we conclude that the plaintiff must be awarded a new trial, we also consider the defendant’s claim that the trial court improperly failed to admit into evidence the plaintiff’s requests for admissions and the defendant’s admissions thereof. Practice Book § 4013 (a) (1) (B).

The plaintiff, Teresa Martins, brought suit individually and as conservatrix for the estate of her husband, Carlos Martins, alleging that he had sustained severe injuries as a result of the negligence of the defendant. On September 22, 1983, Martins received an electric shock when, in the course of his employment as a laborer for the Guerrera Construction Company, the hydraulic hose of an excavator came into contact with the defendant’s uninsulated overhead wires in Stamford. At the time, Martins was working on a sewer construction project, and the excavator was being used to suspend a plate to be placed over a hole in the road. Martins was guiding the plate into position when the excavator struck the overhead wires.

I

The plaintiff claims that the trial court improperly excluded evidence of prior accidents involving the defendant’s uninsulated overhead wires. The plaintiff sought to introduce evidence of nine fatal accidents occurring between 1960 and 1981 that involved contact of a crane or boom-type equipment with the defendant’s overhead wires and the accident reports of those accidents prepared by the department of public utilities. All of the reports were in the records of the defendant. The reports were marked as exhibits for identification only and an offer of proof was made through an expert. The expert testified that statistics are kept as to those contacts between boom-type vehicles and high voltage power lines that cause injury, that two of the accidents involved sewer construction projects, and that one of those two occurred in Stamford. The expert also testified that the conditions of all of the accidents were substantially similar to that of Martins’ accident and that the fatal accident involving Michael Mclnerney in May, 1979, was most similar. The Mclnerney accident occurred four years before the Martins accident in the same city during a sewer project. Both accidents occurred when power equipment being used to lift a plate to be placed in the road struck the defendant’s overhead power lines. Both injured workers were guiding the plates into place when the contacts occurred. The Mclnerney report concluded that the fatality was not caused by the defendant’s equipment but was caused by the accidental contact between the boom of a power shovel and the defendant’s overhead wires.

The plaintiff claimed that the evidence was relevant to show that the defendant knew or should have known of the dangers of its wires, and should have reasonably anticipated that harm would likely result from its act or failure to act. The plaintiff did not offer the evidence to prove the existence of a particular physical condition or defect. The plaintiff’s complaint alleged that Martins’ injuries were caused by the negligence of the defendant in that the defendant “failed to prevent the injury . . . from occurring by moving, de-energizing or insulating the wires when it knew or should have known that substantially similar accidents had previously occurred [and] failed to analyze properly the data available to it concerning previous accidents, so as to avoid this accident . . . .” The plaintiff argues that the evidence relates to foreseeability and notice and should have been admitted.

The trial court excluded the evidence on several grounds. The court found that the plaintiff failed to demonstrate that any of the prior accidents were sufficiently similar to the accident in the present case. The trial court also stated that because the defendant had admitted that its electrical facilities had the potential to cause serious injuries, the evidence of prior accidents had marginally probative significance. The court concluded that the prejudicial effect of the evidence outweighed its probative value, and that the introduction of the evidence would serve only to lengthen and complicate the trial.

Evidence of prior accidents “is admissible to prove the existence of a particular physical condition, situation, or defect”; Hall v. Burns, 213 Conn. 446, 451, 569 A.2d 10 (1990); Colucci v. PJR’s, Inc., 31 Conn. App. 757, 760, 626 A.2d 1326 (1993); or to prove notice of a dangerous character. Sacks v. Connecticut Co., 109 Conn. 221, 238-39, 146 A.2d 494 (1929); Aaronson v. New Haven, 94 Conn. 690, 693, 110 A.2d 872 (1920); see also Borden, Inc. v. Florida East Coast Railway Co., 772 F.2d 750, 754 (11th Cir. 1985). Such evidence is admissible to show that the defendant knew or should have known of the hazards created by a particular condition or danger. Sacks v. Connecticut Co., supra, 238-39; Aaronson v. New Haven, supra, 693; C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 8.9.3; annot., Modern Status of Rules as to Admissibility of Evidence of Prior Accidents or Injuries at Same Place, 21 A.L.R.4th 472 (1983).

A plaintiff attempting to introduce evidence of prior accidents must show that the circumstances of the other accidents were substantially similar to those under which the plaintiff was injured. Hall v. Burns, supra, 213 Conn. 452; Colucci v. PJR’s, Inc., supra, 31 Conn. App. 760. The requirement of a substantially similar condition is lessened when the evidence is offered to show notice of a dangerous condition. In such a case, the prior accidents need “only be such as [would] call defendant’s attention to the dangerous situation that resulted in the litigated accident.” C. McCormick, Evidence (4th Ed. 1992) c. 18, § 200, p. 849; see also annot., 21 A.L.R.4th 472 (1983).

Generally, evidence is admissible to prove a material fact that is relevant to the cause of action alleged by the plaintiff. Chouinard v. Marjani, 21 Conn. App. 572, 575, 575 A.2d 238 (1990). A trial court has broad discretion in ruling on the admissibility of evidence, and we will not disturb such a decision absent an abuse of discretion. Id. Nevertheless, “[t]he exercise of discretion to omit evidence in a civil case should be viewed more critically than the exercise of discretion to include evidence. It is usually possible through instructions or admonitions to the jury to cure any damage due to inclusion of evidence, whereas it is impossible to cure any damage due to the exclusion of evidence.” Larensen v. Karp, 1 Conn. App. 228, 237, 470 A.2d 715 (1984) (Dupont, J., dissenting); see also Batick v. Seymour, 186 Conn. 632, 637, 443 A.2d 471 (1982) (suggesting that standard for admitting evidence that is challenged as prejudicial should be lower in civil case than in criminal case); C. Tait & J. LaPlante, supra, § 8.1.3. “To be excluded the evidence must create prejudice that is undue and so great as to threaten an injustice if the evidence were to be admitted.” (Emphasis in original.) Chouinard v. Marjani, supra, 576; see also Richmond v. Longo, 27 Conn. App. 30, 39, 604 A.2d 374, cert. denied, 222 Conn. 902, 606 A.2d 1328 (1992).

In this case, the plaintiff alleged that the defendant was negligent for a number of reasons. One was the failure to prevent injury when it knew that substantially similar accidents had occurred. Another was the failure to analyze the data available to it concerning previous accidents in order to prevent the plaintiffs injury. The evidence of the nine prior accidents was relevant, therefore, to prove the defendant’s knowledge of the dangerous condition, to prove that the defendant failed to analyze data available to it in order to prevent the plaintiff’s injury, and to prove that the defendant should have anticipated that harm would likely result from the condition. Although all nine prior accidents were relevant does not mean that evidence as to all of them should have been admitted.

The evidence of one of the nine accidents was relevant and also substantially similar to the accident here, as the expert witness testified during the offer of proof. We conclude, on the basis of the facts as previously stated, that the circumstances of the 1979 accident and the litigated accident were essentially the same. Although the 1979 accident occurred four years before the litigatéd accident, that fact goes to the weight of the evidence rather than to its admissibility. See annot., 21 A.L.R.4th 472 (1983). Substantially similar does not mean exactly similar, and the extent to which the conditions may vary does not prevent admissibility. See State v. Dontigney, 215 Conn. 646, 649-51, 577 A.2d 1032 (1990); annot., 21 A.L.R.4th 472 (1983).

We also conclude that the evidence of the 1979 accident was highly probative. In order for a plaintiff to maintain a cause of action in negligence, the plaintiff must show the existence of a duty of care. Calderwood v. Bender, 189 Conn. 580, 584, 457 A.2d 313 (1983); O & G Industries, Inc. v. New Milford, 29 Conn. App. 783, 790, 617 A.2d 938 (1992), aff'd, 229 Conn. 303, 640 A.2d 110 (1994). “A duty to use care may arise . . . from circumstances under which a reasonable person, knowing what he knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result from his act or failure to act.” Calderwood v. Bender, supra, 584; O & G Industries, Inc. v. New Milford, supra, 790. Knowledge of a dangerous condition establishes a duty of care and “generally requires greater care to meet the standard of reasonable care.” Rodriguez v. New Haven, 183 Conn. 473, 479, 439 A.2d 421 (1981); see also Sacks v. Connecticut Co., supra, 109 Conn. 238-39; Aaronson v. New Haven, supra, 94 Conn. 693. In this case, the plaintiff offered the prior accidents, including the 1979 accident, as evidence to show knowledge of a dangerous condition and, in turn, to establish a duty of care. Because a duty of care is an essential element of negligence, the evidence was highly relevant to prove the plaintiff’s case. By excluding the evidence, the trial court severely restricted the plaintiff’s efforts to prove negligence. See May v. Missouri-Kansas-Texas R. Co., 583 S.W.2d 694 (Tex. 1979).

The trial court found that the evidence was only marginally probative because the defendant had admitted that its facilities had the potential to cause harm. This admission is not the same as evidence of actual knowledge of a dangerous condition because it does not necessarily prove negligent conduct. Negligence is conduct that “falls below the objective standard established by law for the protection of others against unreasonable risk of harm.” American National Fire Ins. Co. v. Schuss, 221 Conn. 768, 777, 607 A.2d 418 (1992). An admission as to a condition’s potential for harm may not establish an unreasonable risk. Furthermore, because the plaintiff has the burden of proving its case, it may prove a fact in issue “by the most convincing evidence it is able to produce,” regardless of whether a defendant’s admission might help substantiate the same fact. See State v. Walker, 206 Conn. 300, 315, 537 A.2d 1021 (1988); State v. Wilson, 199 Conn. 417, 448, 513 A.2d 620 (1986); State v. Falcon, 196 Conn. 557, 566-67, 494 A.2d 1190 (1985). A party should not be denied the right to prove every essential fact material to its cause of action by the most convincing evidence available, and such evidence need not be excluded simply because other evidence tending to show the same fact has already been admitted. See State v. Walker, supra, 315; State v. Wilson, supra, 448; State v. Falcon, supra, 566-67.

The trial court also found that the prejudice of the evidence of the prior accidents outweighed its probative value. In order to exclude evidence on the ground of prejudice, there must be undue prejudice great enough to threaten an injustice. Chouinard v. Marjani, supra, 21 Conn. App. 575-76. “Prejudicial evidence is that evidence which may unduly arouse the jury’s emotions of . . . hostility or sympathy.” (Emphasis in original.) State v. Waterman, 7 Conn. App. 326, 350, 509 A.2d 518, cert. denied, 200 Conn. 809, 512 A.2d 331 (1986). The party claiming prejudice has the burden of showing such a threat. Chouinard v. Marjani, supra, 575-76. Here, the accident report of the Mclnerney accident does not ascribe any blame to the defendant and contains no lurid pictures. It is, therefore, difficult to assign to the evidence the ability to arouse emotions of hostility against the defendant, or sympathy for the plaintiff. The evidence of the 1979 accident may be adverse in the sense that it could have a negative impact on the defendant because it tends to prove an element of the plaintiff’s cause of action, but that does not make it prejudicial.

The trial court further concluded that the introduction of the evidence would prolong and complicate the case. Relevant evidence may be excluded where its introduction will “unduly distract the jury from the main issues,” or “consume an undue amount of time.” State v. Greene, 209 Conn. 458, 478, 551 A.2d 1231 (1988); State v. DeMatteo, 186 Conn. 696, 702-703, 443 A.2d 915 (1982); see also Chouinard v. Marjani, supra, 21 Conn. App. 575. In this case, the introduction of the Mclnerney accident evidence would have created no such threat. The other accidents, however, if admitted, might have prolonged the case and prejudiced the defendant unduly because they were “stale” in time, took place in other cities, occurred under different conditions, and were cumulative. We, therefore, do not conclude that the trial court improperly excluded evidence of the eight other accidents. The Mclnerney accident, however, should have been treated differently. As to that accident, the trial court could have avoided any distraction from the main case by instructing the jury that the evidence was being admitted for the limited purpose of showing notice of a dangerous condition and the foreseeability of the litigated accident.

We conclude that the Mclnerney evidence should have been admitted because it was competent evidence having a tendency to make the existence of a fact that was relevant to the determination of the litigation more probable than it would be without the evidence. See Borden, Inc. v. Florida East Coast Railway Co., supra, 772 F.2d 754. That evidence was not unduly prejudicial, had a logical tendency to aid the trier of fact, did not surprise the defendant, and would not have confused the jury. When the evidence is relevant and the likelihood of prejudice is not great, deviation from the general rule of admissibility is not warranted and discretion has been abused if the evidence is excluded. See Batick v. Seymour, supra, 186 Conn. 638.

“The plaintiff, however, is entitled to relief from an erroneous ruling on the admissibility of evidence only if the error is also harmful.” Chouinard v. Marjani, supra, 21 Conn. App. 577. The plaintiff bears the burden of demonstrating that the erroneous ruling was likely to affect the result of the trial. Id. In this case, the plaintiff has met its burden. The exclusion of the prior accident evidence prevented the jury from considering relevant and material evidence that affected an ultimate issue, and prevented the plaintiff from proving whether the defendant had knowledge of a dangerous condition. Because such knowledge establishes a duty of care and generally determines the extent of care necessary to satisfy the defendant’s duty, the exclusion hindered the plaintiff’s efforts to prove a key element of negligence. As a result, we conclude that the erroneous exclusion of the evidence likely affected the result of the trial, and, therefore, was harmful. The refusal to admit the Mclnerney accident evidence was an abuse of discretion and requires us to remand this case for a new trial.

II

The plaintiff claims that the trial court improperly allowed the defendant to discriminate on the basis of gender in its use of a peremptory challenge to exclude a venireperson from the jury, and that, therefore, the plaintiff is entitled to a new trial. Because we have concluded that a new trial is necessary because of the exclusion of relevant evidence, we reach this issue only because it may recur.

During the selection of alternate jurors, the defendant exercised a peremptory challenge to excuse a black, female venireperson. The plaintiff objected to the challenge, alleging that the defendant had unconstitutionally exercised the challenge on the basis of the venireperson’s race in violation of Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). The defendant responded that the challenge was exercised not because of the venireperson’s race, but because she was a young woman. After the trial court found that the challenge was not racially based, the plaintiff moved that the challenge was improperly exercised on the basis of gender and age. The trial court conducted a hearing on the issue, and concluded that the defendant had not attempted to excuse a venireperson on the basis of gender or age. The court also ruled that Bat-son principles do not prohibit gender or age discrimination claims in regard to the exercise of peremptory challenges.

The issue before us, namely, whether federal constitutional equal protection prevents a civil litigant from peremptorily challenging a potential juror on the basis of gender, has recently been decided by the United States Supreme Court in J.E.B. v. Alabama ex rel. T.B., U.S. , 114 S. Ct. 1419, 128 L. Ed. 2d 89 (1994). In J.E.B., the Supreme Court held that the federal equal protection clause prohibits discrimination in jury selection on the basis of gender, or on the assumption that a potential juror will be biased in a particular case because of his or her gender. Id., 1429-30. The court concluded that gender discrimination in the use of peremptory challenges is unconstitutional because it does not substantially further the state’s interest in achieving a fair and impartial trial. Id., 1426-28.

The court found virtually no support for the claim that gender alone accurately predicts potential jurors’ attitudes, and thus rejected the argument that a decision to strike on the basis of gender could be reasonably based on the perception that the prospective juror might be more sympathetic to a particular party because of the prospective juror’s gender. Id., 1428. The court instead found that the exercise of peremptory challenges in reliance on gender stereotypes “ratifies] and reinforce[s] prejudicial views of the relative abilities of men and women.” Id., 1427. The court regarded such a result as the very kind that the law condemns. Id., 1426-27.

Discrimination in the selection of a jury, whether based on race or on gender, harms the litigants, the excluded jurors, and the community. Id., 104. Litigants are harmed because the discriminatory selection process may affect the fairness of the proceedings. Id. “The very idea of a jury is a body . . . composed of the peers or equals of the person whose rights it is selected or summoned to determine.” Batson v. Kentucky, supra, 476 U.S. 86. Gender discrimination deprives litigants of the protection that a jury trial is intended to secure. J.E.B. v. Alabama ex rel. T.B., supra, 114 S. Ct. 1427. Individual jurors are harmed because all persons, when granted the opportunity to participate in the judicial process, have the right not to be excluded based on stereotypical presumptions about their abilities and attitudes. Id., 105. A person’s competence to serve as a juror is determined by an assessment of individual qualifications, not by stereotypical assumptions about those abilities. Batson v. Kentucky, supra, 87. Finally, “[t]he community is harmed by the State’s participation in the perpetuation of invidious group stereotypes and the inevitable loss of confidence in our judicial system that state-sanctioned discrimination in the courtroom engenders.” J.E.B. v. Alabama ex rel. T.B., supra, 1427.

In Connecticut, peremptory challenges constitute an important part of trial procedure. Our constitution grants a right to challenge prospective jurors peremptorily. Conn. Const., art. I, § 19. Nevertheless, Connecticut’s choice of jury selection procedures, whether constitutional or statutory, must comply with the strictures of the federal constitution. See J.E.B. v. Alabama ex rel. T.B., supra, 114 S. Ct. 1421. Thus, while Connecticut litigants still have a state constitutional right to use peremptory challenges, the extent of that use is now limited by the equal protection clause of the federal constitution as enunciated in the J.E.B. decision, as potential jurors may no longer be peremptorily challenged on the basis of gender. “Parties still may remove jurors whom they feel might be less acceptable than others on the panel; gender simply may not serve as a [reason for exclusion].” Id., 1429.

“As with race-based Batson claims, a party alleging gender discrimination must make a prima facie showing of intentional discrimination before the party exercising the challenge is required to explain the basis for the strike. . . . When an explanation is required, it need not rise to the level of a ‘for cause’ challenge; rather, it merely must be based on a juror characteristic other than gender, and the proffered explanation may not be pretextual.” (Citation omitted.) Id., 1429-30.

In J.E.B., which was based on a petitioner’s paternity and support trial, the respondent was the state of Alabama and it had filed the suit on behalf of the mother. “[Wjhether the trial is criminal or civil, potential jurors, as well as litigants, have an equal protection right to jury selection procedures that are free from state-sponsored group stereotypes rooted in, and reflective of, historical prejudice. See Powers v. Ohio, 499 U.S. 400, 111 S. Ct. 1364, 113 L. Ed. 2d 411 (1991); Edmonson v. Leesville Concrete Co., 500 U.S. 614, 111 S. Ct. 2077, 114 L. Ed. 2d 660 (1991); Georgia v. McCollum, 505 U.S. 42, 112 S. Ct. 2348, 120 L. Ed. 2d 33 (1992).” J.E.B. v. Alabama ex rel. T.B., supra, 114 S. Ct. 1421. It is clear that the principles of J.E.B. apply to civil eases in which the government is a party. It is not an absolute certainty, however, that the principles apply to civil cases in which a nongovernment party has used gender based peremptory challenges. Justice O’Connor, in her concurrence, states her conviction that J.E.B. should be limited to a prohibition by the government of gender based peremptory challenges. She, however, assumes that J.E.B. will not be applied in such a limited manner in the future. We agree. The language of the majority leaves little doubt that its principles will be applied to the parties in a civil action in which the government is not involved. Individual jurors have the right to nondiscriminatory jury selection procedures. Because discrimination based on gender is prohibited and potential jurors as well as litigants must receive the protection of that right, the right must logically remain unmodified and intact regardless of the identity of the litigants. We, therefore, conclude that J.E.B. applies to cases such as this one, in which the government is not a litigant.

III

Because we have concluded that the plaintiff must be awarded a new trial, we next review whether the trial court should have sustained the plaintiffs objection to the defendant’s offer into evidence of the plaintiff’s requests for admissions and the defendant’s answers. The plaintiff filed a number of requests for admissions, two of which are involved in this claim. These two requests were admitted by the defendant. The defendant sought to use them to establish conclusively the matter admitted, but the trial court sustained the plaintiff’s objection to their admission into evidence.

Pursuant to Practice Book § 238, a party may serve on any other party a request for admission of the truth of any matter relevant to the disposition of the pending action. Generally, any matter admitted by the party to whom the request is made is conclusively established. Practice Book § 240. Admissions obtained may be offered into evidence, but their admissibility is subject to evidentiary principles, including the hearsay rule. See Larson v. Fazzino, 216 Conn. 431, 433 n.4, 582 A.2d 179 (1990); Falcone v. Night Watchman, Inc., 11 Conn. App. 218, 219 n.1, 526 A.2d 550 (1987); 8 C. Miller & A. Wright, Federal Practice and Procedure (1970) § 2264.

A party may not introduce its own admission made following a request for admission because the admission would not satisfy the exception to the hearsay rule for admissions of a party opponent. See 8 C. Miller & A. Wright, supra, § 2264. Under the admissions of a party opponent exception to the hearsay rule, evidence must be offered against the party that made the admission. State v. Woodson, 227 Conn. 1, 15, 629 A.2d 386 (1993); In re Zoarski, 227 Conn. 784, 796, 632 A.2d 1114 (1993). A party may not offer its own admission for its own benefit. Bell Food Services, Inc. v. Sherbacow, 217 Conn. 476, 489, 586 A.2d 1157 (1991); State v. Tyson, 23 Conn. App. 28, 34, 579 A.2d 1083, cert. denied, 216 Conn. 829, 582 A.2d 207 (1990). Here, because the defendant admitted the plaintiff’s requests for admissions, and sought to introduce its own admissions for its own benefit, the admissions did not satisfy the admissions of a party opponent exception to the hearsay rule. Thus, the trial court properly prevented the introduction of the evidence.

The judgment is reversed and the case is remanded for a new trial.

In this opinion the other judges concurred.

       This suit was originally brought against the city of Stamford, its engineers, and CL&P. The Guerrera Construction Company intervened as a third party defendant. Settlement was effected as to all except CL&P. The plaintiff thereafter filed a substitute information naming only CL&P.

       The defendant similarly sought review, in the event of a new trial, of whether sums received by the plaintiff in settlement with other defendants for the same injuries should be deducted from any future verdict for the plaintiff. This issue has been resolved since the filing of the defendant’s brief. A trial court should not reduce the amount of a plaintiff’s verdict by any moneys previously received from other tortfeasors unless the court makes a determination that the total amount is excessive. Mauro v. Yale-New Haven Hospital, 31 Conn. App. 584, 587-88, 627 A.2d 443 (1993). A pretrial settlement does not mandate an automatic reduction of the jury verdict. Id.

       The plaintiff alleged the loss of consortium of her husband, Carlos Martins, as a result of the negligence of the defendant.

       The defendant argued at this time that the plaintiff had exercised its peremptory challenges in an effort to get young women on the jury who would empathize with the plaintiff, also a young woman. The defendant claimed it was exercising its peremptory challenges in an effort to counter the plaintiff’s strategy.

       At the hearing, the defendant stated that it exercised its peremptory challenge because the venireperson was a young mother about the same age as the plaintiff with three children about the same ages as the plaintiff’s children. The defendant also asserted other reasons for exercising the challenge, including the venireperson’s limited knowledge about the dangers of electricity and her lack of responsibility for her own personal safety as evidenced by the fact that she did not always wear a seatbelt while riding in a motor vehicle.

       Because we reverse on the plaintiff’s first claim, we do not need to reach the issue of whether the trial court correctly concluded that the defendant had not attempted to excuse a venireperson on the basis of gender.

       Article first, § 19, of the Connecticut constitution, as amended by amendment four, provides in pertinent part: “In all civil and criminal actions tried by a jury, the parties shall have the right to challenge jurors peremptorily, the number of such challenges to be established by law.”

       “Parties may also exercise their peremptory challenges to remove from the venire any group or class of individuals normally subject to ‘rational basis’ review. . . . Even strikes based on characteristics that are disportionately associated with one gender could be appropriate, absent a showing of pretext.” (Citations omitted.) J.E.B. v. Alabama ex rel. T.B., supra, 114 S. Ct. 1429.

       The plaintiff’s requests for admissions, for which the plaintiff sought an admission or a denial, included the following: “No. 51. On September 22, 1983, the Connecticut Light and Power Company used every effort to properly warn and protect the public from danger and exercised all possible care to reduce the hazard to which employees, customers and others may be subjected by reason of its equipment and facilities.
      “No. 106. Prior to September 22,1983, Connecticut Light and Power Company advertised the dangers of electrical contacts between uninsulated overhead wires and, among other things, large pieces of construction equipment similar to the Drott 50 crawler, Series D.”


author: Foti, J. Landau, J., dissenting.

text:
    Helen F. Misinonile v. Joseph C. Misinonile
    (12581)
    Foti, La very and Landau, Js.
    Argued February 15
    decision released July 26, 1994

      Abraham I. Gordon, with whom were Ronald D. Japha and, on the brief, Richards. Scalo, for the appellant (plaintiff).

      Thomas J. Rosati, with whom, on the brief, was John F. Bigley, for the appellee (defendant).
   Foti, J.

The plaintiff appeals from the judgment of the trial court granting the defendant’s motion for downward modification of periodic alimony awarded to the plaintiff upon the dissolution of their marriage, and denying her motion seeking an upward modification. The issue is whether the court abused its discretion in reducing that award.

The parties’ nineteen year marriage was dissolved in 1980. At that time, the trial court ordered the defendant to pay the plaintiff $200 per week in periodic alimony and $25 per week for child support. In 1981, the child was made a ward of the state and the alimony payment was reduced to $175 per week.

On March 4, 1993, the defendant filed a motion for downward modification of alimony and, on March 30, 1993, the plaintiff filed a motion seeking an increase in alimony. Both motions for modification were filed pursuant to General Statutes § 46b-86 (a).

The parties stipulated that the financial affidavits filed by them in 1980 would be utilized by the trial court for comparison purposes with respect to their motions for modification. At the time of the decree of dissolution and as reflected in the 1980 financial affidavits, the defendant was employed at Sikorsky Aircraft and earned gross wages of $378 per week and a net of $234 per week. The plaintiff had part-time employment with gross wages of $101 per week and net wages of $78 per week.

The plaintiff has not been employed since 1981 when she left her employment because of a degenerated disc. At the time of the motions for modification, the plaintiff was sixty-seven years of age and was receiving $105 per week in Social Security payments. Although she continues to suffer from a mental disorder requiring treatment and prescription medication, she manages her own house, drives an automobile and babysits for her nine grandchildren from time to time.

The defendant, who has remarried, retired from Sikorsky in 1993, at age sixty-eight, after thirty-three years of employment there. He receives a pension of $325 per week and $258 per week in Social Security payments. He has had a thyroid condition for thirty-five years, and requires surgery for a hemorrhoidal ailment. His hearing has been impaired since World War II.

In deciding the motions for modification, the trial court found that the defendant’s retirement constituted a substantial change of circumstances, granted his motion and reduced the order of alimony payment to $100 per week. The court, while concluding that “the plaintiffs situation is a fragile one,” denied her motion seeking an upward modification.

The plaintiff argues that the trial court abused its discretion in granting the defendant’s motion and reducing his obligation on the basis of a substantial change of circumstances that consisted of a voluntary reduction in income. In addition, the plaintiff argues that the reduction was improper because the defendant has higher earnings, a higher earning capacity and better financial circumstances than when the original alimony order was made. We affirm the judgment of the trial court.

“We will not disturb a trial court order unless there has been an abuse of discretion or unless the finding of the trial court has no reasonable basis in the facts.” Siracusa v. Siracusa, 30 Conn. App. 560, 566, 621 A.2d 309 (1993). This court will not substitute its judgment for that of the trial court, which has broad discretion in domestic relations matters. Fisher v. Fisher, 28 Conn. App. 483, 487, 611 A.2d 440 (1992).

The principal issue in this matter is whether “a reasonable basis exists in the facts that a substantial change of circumstances could reasonably have been found.” Id. The plaintiff argues that the voluntary retirement of the defendant is not a reasonable basis for this finding. We do not agree under the particular circumstances of this matter.

The trial court has the best opportunity to observe the parties, pass on the credibility of witnesses and weigh and interpret the evidence. Rostain v. Rostain, 214 Conn. 713, 716, 573 A.2d 710 (1990). When reviewing a claim that the trial court abused its discretion, every reasonable presumption should be given in favor of its correctness, and the ultimate issue is whether the court could have reasonably concluded as it did. Puris v. Puris, 30 Conn. App. 443, 449, 620 A.2d 829 (1993).

Our review of the record discloses no basis for a finding that the defendant retired for the purpose of avoiding or reducing his obligation. Rather, the defendant, who had been eligible for retirement six years earlier, chose, after working for thirty-three years with health problems, to retire at age sixty-eight. Under such circumstances, it is not unreasonable for the defendant, as he stated, to be “tired” and to seek the less strenuous and demanding lifestyle offered by retirement. The trial court chose to credit the defendant’s testimony. On the basis of these facts, we conclude that the finding of the court, that there was a substantial change of circumstances, was neither unreasonable nor constituted an abuse of discretion. Paddock v. Paddock, 22 Conn. App. 367, 372, 577 A.2d 1087 (1990).

The plaintiff further argues that the trial court improperly found a substantial change in circumstances and reduced the obligation because the defendant’s assets increased after retirement to a level greater than his income and assets at the time of dissolution. We do not agree.

Our inquiry is limited to whether the court correctly applied the law and whether it could reasonably conclude as it did. Leo v. Leo, 197 Conn. 1, 4, 495 A.2d 704 (1985). The trial court must consider the relevant statutory criteria; Weiman v. Weiman, 188 Conn. 232, 234, 449 A.2d 151 (1982); and may place varying degrees of importance on each criterion according to the factual circumstances of each case. Carpenter v. Carpenter, 188 Conn. 736, 740-41, 453 A.2d 1151 (1982). The trial court stated that it considered the factors of General Statutes § 46b-82 “to determine what is a fair and equitable amount of alimony.” “It is a basic principle of law that common sense is not to be left at the courtroom door.” State v. Perez, 10 Conn. App. 279, 291, 523 A.2d 508, cert. denied, 203 Conn. 810, 525 A.2d 524 (1987). The defendant’s earnings increased by approximately 4 percent per year for the thirteen years after the dissolution of the marriage. Such an increase in salary may be seen as no more than normal adjustments and the effects of inflation over a long period of time. The trial court found the shortfall between the defendant’s expenses and his current income to be $130 per week. In addition, the trial court specifically found that the shortfall between the plaintiff’s expenses and income was offset in part by contributions from her son.

In family matters, the court exercises its equitable powers, and the balancing of equities is a matter that falls within its discretion. Lawler v. Lawler, 16 Conn. App. 193, 204, 547 A.2d 89 (1988), appeal dismissed, 212 Conn. 117, 561 A.2d 128 (1989). Equitable remedies are not bound by formula but are molded to the needs of justice. Oneglia v. Oneglia, 14 Conn. App. 267, 271-72, 540 A.2d 713 (1988). Our review discloses that the trial court’s factual findings are supported by the evidence and its conclusions are in accordance with the law. Further, we presume that the trial court properly considered all of the evidence submitted by the parties. Rummel v. Rummel, 33 Conn. App. 214, 222, 635 A.2d 295 (1993). The plaintiff has failed to demonstrate that the trial court abused its discretion in modifying the award of alimony payments.

The judgment is affirmed.

In this opinion Lavery, J., concurred.

Landau, J., dissenting.

I agree with the majority that a reasonable basis exists in the facts as to a substantial change of circumstances to permit the trial court to entertain the motion for modification; I do not agree with the majority that the trial court was correct when it reduced the alimony award from $175 per week to $100 per week.

The trial court has broad discretion in domestic relations cases and review is limited to whether the court’s conclusions were correct in law and reasonably reached on the basis of the evidence presented. Cattaneo v. Cattaneo, 19 Conn. App. 161, 166, 561 A.2d 967 (1989). This court will not substitute its judgment for that of the trial court unless there has been an abuse of discretion or the findings lack a reasonable basis in fact. Paddock v. Paddock, 22 Conn. App. 367, 372, 577 A.2d 1087 (1990). “Where the legal conclusions of the trial court are challenged, on appeal those conclusions are subject only to the test of abuse of discretion. State v. Arbour, 29 Conn. App. 744, 748, 618 A.2d 60 (1992). ‘Discretion means a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice. . . . The salient inquiry is whether the court could have reasonably concluded as it did. ... It goes without saying that the term abuse of discretion does not imply a bad motive or wrong purpose but merely means that the ruling appears to have been made on untenable grounds.’ (Citations omitted; internal quotation marks omitted.) Id. ‘In determining whether the trial court has abused its discretion, we must make every reasonable presumption in favor of the correctness of its action.’ E. M. Loew’s Enterprises, Inc. v. Surabian, 146 Conn. 608, 612, 153 A.2d 463 (1959). Our review of a trial court’s exercise of the legal discretion vested in it is limited to the questions of whether the trial court correctly applied the law and could reasonably have reached the conclusion that it did. Timm v. Timm, 195 Conn. 202, 210, 487 A.2d 191 (1985).” Burke v. Avitabile, 32 Conn. App. 765, 770-71, 630 A.2d 624, cert. denied, 228 Conn. 908, 634 A.2d 297 (1993).

After the trial court found a substantial change of circumstances and was able to consider the merits of the motion to modify, it then considered the factors embraced in General Statutes § 46b-82. It found the plaintiff’s shortfall to be $127 per week and the defendant’s to be $130. The record exhibits, in the only affidavits available, that there had been an increase in the defendant’s weekly net income from $234.04 to $582.18, and a decrease in his shortfall from $222.92 to $128.82. The plaintiffs affidavit demonstrates an increase of weekly net income from $228.01 to $274.51, and an increase in her shortfall from $96.62 to $116.96. After the dissolution, the defendant acquired a house by devise. He sold it, and, after purchasing another house, was left with $69,000. He gave $20,000 to his daughter and invested in stocks. The defendant retired one month before the date of the modification hearing, and earned $53,333 for federal income tax purposes the year previous to his retirement. The record also indicates that the defendant placed a deposit of $12,000 towards the purchase of a 1993 Chevrolet one month before the modification hearing.

The majority states that the defendant’s increase in salary “may be seen as no more than normal adjustments and the effects of inflation over a long period of time.” While this is the cornerstone on which the majority builds, I see no evidence of this in the record.

The standard for reversal of a trial court’s discretionary finding is high and appropriately so. When that standard has been met, however, a reversal is dictated. I would reverse the judgment of the trial court, and direct the court to hear both motions to modify.

       The defendant appealed, and the judgment was affirmed by our Supreme Court in Misinonile v. Misinonile, 190 Conn. 132, 459 A.2d 518 (1983).

       General Statutes § 46b-86 (a) provides in pertinent part: “Unless and to the extent that the decree precludes modification, any final order for the periodic payment of permanent alimony or support . . . may at any time thereafter be continued, set aside, altered or modified by said court upon a showing of a substantial change in the circumstances of either party

       The trial court, recognizing that the plaintiff had limited liquid assets for attorney’s fees, granted the plaintiff an allowance of counsel fees of $750.

       The plaintiff also claims that the defendant failed to show that the substantial change of circumstances was not contemplated by the parties. In addition to the fact that this claim was not raised at the trial court level, such a determination is not required. Turner v. Turner, 219 Conn. 703, 717, 595 A.2d 297 (1991); Fisher v. Fisher, 30 Conn. App. 324, 326, 620 A.2d 189, cert. denied, 227 Conn. 904, 632 A.2d 687 (1993); Fisher v. Fisher, supra, 28 Conn. App. 487.

       The plaintiff relies in part on Lawler v. Lawler, 16 Conn. App. 193, 204, 547 A.2d 89 (1988), appeal dismissed, 212 Conn. 117, 561 A.2d 128 (1989), for this proposition. In affirming the trial court’s order that the alimony award be nonmodifiable until the plaintiff reached age sixty-two, this court stated, “[i]t is clear from this order that the court left open the possibility for modification by the plaintiff after [he turned sixty-two] should he opt for early retirement . . . .” In so doing, the court did propose a reasonable age for retirement and suggested that retirement at such age might be sufficient ground for the modification of an alimony award.

       Having so concluded, we find it unnecessary to address the plaintiffs claim that the trial court improperly denied her motion for modification.

       I also agree with the majority that, contrary to the plaintiffs claim, a determination that the substantial change in circumstances was “not contemplated by the parties” is unnecessary. General Statutes § 46b-86 (a); Turner v. Turner, 219 Conn. 703, 717, 595 A.2d 297 (1993); Fisher v. Fisher, 30 Conn. App. 324, 326, 620 A.2d 189 (1993).

       The parties had stipulated that the trial court treat the affidavits filed on August 7, 1980, and those filed in March and April, 1993, as applicable to the parties’ respective motions for modification.

       The defendant’s expenses were $455 in 1980 and are now $711.


author: Per Curiam.

text:
    State of Connecticut v. Ricky L. Neron
    (12312)
    O’Connell, Landau and Spear, Js.
    Argued June 13
    decision released July 26, 1994

      Ricky L. Neron, pro se, the appellant (defendant).

      Leah Hawley, assistant state’s attorney, with whom, on the brief, was Patricia A. Swords, state’s attorney, Nina Rosen, supervisory assistant state’s attorney, and Matthew Gedansky and Sandra Tulluis, assistant state’s attorneys, for the appellee (state).
   Per Curiam.

The defendant appeals from the decision of the trial court denying his motion to open the trial court’s granting of his application for accelerated rehabilitation. The state asserts that this court lacks subject matter jurisdiction. It posits that the decision of the trial court denying the defendant’s motion to vacate its previous granting of the defendant’s application for accelerated rehabilitation is not a final judgment from which an appeal should have been taken. We agree.

“Interlocutory orders and rulings of the Superior Court may be final judgments for purposes of appeal in two circumstances: (1) [WJhere the order or action terminates a separate and distinct proceeding, or (2) where the order or action so concludes the rights of the parties that further proceedings cannot affect them. State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983).

“The second test for finality, where the order on appeal so concludes the rights of the parties that further proceedings cannot affect them, focuses not on the proceeding involved, but on the potential harm to the appellant’s rights. A presentence order will be deemed final for purposes of appeal only if it involves a claimed right the legal and practical value of which would be destroyed if it were not vindicated before trial. Id., 33-34. The granting of a motion for accelerated rehabilitation satisfies neither prong of Curdo.

“Clearly, an application for accelerated rehabilitation is not a separate and distinct proceeding. See State v. Spendolini, 189 Conn. 92, 95, 454 A.2d 720 (1983).” (Internal quotation marks omitted.) State v. Angelo, 25 Conn. App. 235, 239, 594 A.2d 24, cert. denied, 220 Conn. 911, 597 A.2d 335 (1991).

Similarly, a motion filed by the defendant to vacate the trial court’s granting of his previous application for accelerated rehabilitation does not meet the test of Curcio. See State v. Southard, 191 Conn. 506, 512, 467 A.2d 920 (1983); State v. Spendolini, supra, 189 Conn. 95; State v. Angelo, supra, 25 Conn. App. 239.

The appeal is dismissed.

       The defendant moved the court “to reopen judgment for the purpose of dismissal.” “Although the nomenclature is found in the title to General Statutes § 52-212 and in some decisions of our courts; see, e.g., Bartlett v. Bartlett, 220 Conn. 372, 599 A.2d 14 (1991); Sasso v. Aleshin, 197 Conn. 87, 495 A.2d 1066 (1985); D’Occhio v. Connecticut Real Estate Commission, 189 Conn. 162, 455 A.2d 833 (1983); Northest Savings, F.A. v. Hopkins, 22 Conn. App. 396, 578 A.2d 136 (1990); Kavareo v. T.J.E., Inc., 2 Conn. App. 294, 478 A.2d 257 (1984); unless the judgment has been opened previously, the appropriate appellation is a motion to open. ‘Reopen’ is defined in Webster’s Third New World Dictionary as ‘to open again’ or ‘to take up again.’ . . . Thus, we will treat the motion as a motion to open.” National Iron Bank v. Gelormino, 28 Conn. App. 7, 8 n.1, 609 A.2d 666 (1992).
      The defendant’s appeal form indicates that he is appealing from the trial court’s accelerated rehabilitation decision. The date of the judgment appealed from, however, is March 3,1993, the date of the trial court’s denial of the defendant’s motion to open. We will treat this appeal as an appeal from the denial of the defendant’s motion to open.

       At oral argument, the defendant maintained that he did not reapply for accelerated rehabilitation on September 15,1992. A reading of the transcript indicates otherwise.