author: Cretella, J.

text:
    Third Taxing District of the City of Norwalk v. Michael Lyons et al.
    (12292)
    Landau, Spear and Cretella, Js.
    Argued June 1
    decision released September 6, 1994

      Ridgely W. Brown, with whom, on the brief, was Benjamin E. Gershberg, for the appellant (plaintiff).

      Richard A. Silver, with whom, on the brief, were Jonathan M. Levine and Mitchell J. Rosenfeld, for the appellees (named defendant et al.).
   Cretella, J.

This is an appeal by the plaintiff from the trial court’s granting of the defendants’ motions to dismiss on the basis of the plaintiff’s lack of standing. The plaintiff in this case is attempting to sue in the name of the third taxing district of the city of Nor-walk (taxing district), a quasi-municipal corporation covering a defined geographical area within the city of Norwalk the primary function of which is the operation of a public utility plant. The plaintiff consists of a group of electors who reside within the taxing district. The defendants are James Cunningham and Angelo Santella, both commissioners of the taxing district, William Lyons, Jr., a retired commissioner and general manager of the taxing district, and Michael Lyons, appointed counsel for the taxing district.

On November 25, 1991, a group of electors who reside in the area served by the taxing district held a special meeting, which was continued on January 8, 1992, at which the plaintiff electors adopted eighteen resolutions to reform the management of the taxing district and its electrical utility. These reforms included the firing of the defendant Lyons as the attorney for the taxing district, the institution of a criminal investigation of the taxing district, the elimination of compensation for the district commissioners, and the hiring of another law firm to represent the district, as well as authorizing the lawsuit in question here. The commissioners refused to implement all of the reforms made by the plaintiff electors, claiming that the electors did not have the authority to adopt such resolutions. The plaintiff electors sought a declaratory judgment concerning their authority as electors of the taxing district. The trial court dismissed the action and this appeal followed.

The defendants Cunningham and Santella made a motion to dismiss for lack of subject matter jurisdiction on the ground that the individual electors bringing the lawsuit did not have standing. The defendants William and Michael Lyons made a similar motion. The trial court granted the motions to dismiss, holding that the relevant section of the charter of the city of Nor-walk did not give individual residents standing to sue the district’s commissioners in the name of the taxing district. The court further held that as taxpayers of the taxing district, the plaintiff electors were essentially attempting to bring a “taxpayers’ action,” but had failed to complete the necessary step of alleging taxpayer status in the complaint. The plaintiff’s subsequent motion to reargue was denied by the trial court. This appeal followed.

The plaintiff does not contest the conclusion of the trial court that the plaintiff did not allege sufficient facts in its complaint to support a taxpayers’ action. Rather, the plaintiff contests the trial court’s conclusion that under the charter of the taxing district, the plaintiff electors did not have standing to bring suit in the name of the district against its commissioners, and that, based on the nature of the injury claimed by the plaintiff, this action was essentially a taxpayers’ action. We affirm the judgment of the trial court.

The concept of standing concerns the legal right of an individual to seek relief via the judicial system. Sadloski v. Manchester, 228 Conn. 79, 84, 634 A.2d 888 (1993). Standing is neither a technical rule designed to frustrate aggrieved parties nor a test of substantive rights. Instead, the requirement that a party have standing ensures that courts and parties are not hindered by suits brought to vindicate nonjusticiable interests, and protects the rights of others from being affected by precedential judicial decisions that do not involve the individuals or entities with the most at stake and may not have been contested with the appropriate diligence and vigor. Id.; Delio v. Earth Garden Florist, Inc., 28 Conn. App. 73, 78, 609 A.2d 1057 (1992). Generally, therefore, a party does not have standing to raise another person’s rights. Delio v. Earth Garden Florist, Inc., supra, 78. The absence of standing precludes the existence of a court’s subject matter jurisdiction and requires dismissal of the claim. Sadloski v. Manchester, supra, 83.

Here, the plaintiff electors claim to be entitled to sue in the name of the taxing district. Normally, a party is held to have standing when he “makes a colorable claim of direct injury he has suffered or is likely to suffer, in an individual or representative capacity.” Maloney v. Pac, 183 Conn. 313, 321, 439 A.2d 349 (1981). The appropriate focal point in this case is not whether the plaintiff electors have been aggrieved by the actions of the defendants, but in what capacity they allegedly have been aggrieved. If the plaintiff electors have made a colorable claim of direct injury suffered by them as individual electors of the taxing district, then that is the capacity in which they must sue, unless permission has been otherwise given by statute to sue in the name of the district. If the plaintiff electors have made a colorable claim of direct injury suffered by them as representatives of the taxing district, which would thereby imply injury suffered by the district itself, then they would have to sue in that capacity. In order to decide if the plaintiff electors are representatives of the district, or, alternatively, whether, as electors, they are entitled by ordinance to sue on behalf of the district, we must examine the relevant language of the Norwalk city charter.

We begin by considering § 1-114 of the Norwalk city charter. That section provides in part: “All electors of this state dwelling within the territorial limits of the Third Taxing District as hereinbefore established are hereby constituted a body politic and corporate by the name of the Third Taxing District of the City of Nor-walk, and by that name shall be capable of suing and being sued, pleading and being impleaded, purchasing, holding, selling, and conveying any property, real or personal, and of having a common seal, and as such corporation shall succeed to and possess all the property, both real and personal, of the East Norwalk Fire District of said Town of Norwalk, and all the rights, powers, franchises, privileges, and immunities heretofore granted to said East Norwalk Fire District . . . .” Norwalk Code, Charter § 1-114. Section 1-114 establishes the primary duty of the taxing district as being the operation and maintenance of its electric light works and those fixtures related to the supplying of electricity to the district. Districts such as the taxing district that serve public functions are characterized as quasi-municipal corporations and are governed by the laws applicable to municipal corporations. Alarm Applications Co. v. Simsbury Volunteer Fire Co., 179 Conn. 541, 547, 427 A.2d 822 (1980).

The plaintiff contends that nothing in the charter specifically delegates the power to sue either the electors or the board of commissioners. While this may be true, the commissioners are empowered under § 1-122 of the Norwalk city charter “in all matters pertaining to the electric-light plant of said district to exercise all the authority and discharge all the duties that are granted to Electrical Commissioners by Chapter 122 of the General Statutes, except as said powers may be herein limited, and to care for and keep in repair all the property of said district, with power to lease or sell the same . . . and to exercise any additional powers that may, from time to time, be conferred upon them by said district.” Norwalk Code, Charter § 1-122. The electors, on the other hand, elect the board of commissioners and a treasurer for the taxing district and, on the written petition of twenty-five electors, may call a special meeting of the electors. It is thus apparent that, although neither party is specifically allowed to sue, the board of commissioners is the body intended to act on behalf of the electors and to represent the taxing district on a day-to-day basis.

Despite some ambiguity in § 1-114 of the Norwalk city charter, we conclude that the language does not contemplate that the electors of the taxing district are entitled to sue in the name of the district. Although some of the language of that section seems to imply that the electors of the district “are hereby constituted a body politic and corporate by the name of the Third Taxing District . . . and by that name shall be capable of suing and being sued, pleading and being impleaded, [and] purchasing, holding, selling and conveying any property. . . (emphasis added) Norwalk Code, Charter § 1-114; a reading of the entire charter makes it clear that that provision was not intended to grant each individual elector the right to act on behalf of the taxing district.

If § 1-114 is construed to allow some of the electors to sue in the name of the taxing district, it would also mean that it must allow them to purchase or convey property in the name of the district. That power, however, was expressly granted to the commissioners in § 1-122 of the charter, thus impliedly excluding the electors from exercising it. O’Meara v. Norwich, 167 Conn. 579, 582, 356 A.2d 906 (1975). This suggests that § 1-114 was meant to provide the “body politic and corporate” itself, rather than the individual electors, with the right to act in the name of the taxing district regarding the powers listed therein.

Construing the charter to allow the plaintiff electors to sue in the name of the taxing district would conflict with both the remainder of the charter and common sense. The charter provides for the election of a board of commissioners who, similar to the elected officials in a municipality, are given the necessary powers and responsibilities to manage the tax district. It is indisputable that one of the powers crucial to the operation of a municipal or quasi-municipal corporation is the power to sue or be sued on behalf of the corporation. The lack of such power would render the board of commissionérs unable to authorize judicial proceedings to enforce contracts on behalf of the taxing district, a result clearly incompatible with the express power of the commissioners to lease, buy or sell property of the district.

Moreover, absent an unequivocal provision to the contrary, this power cannot be construed to be shared with the electors of the district. By definition, the electors act through their elected officials, the board of commissioners, when proceeding in the corporate name of the taxing district. Allowing individual electors to act in the name of the district not only would be confusing and chaotic, but would permit unelected individuals to sue in the name of the taxing district and nominally on behalf of the other members of the district who did not authorize the unelected individuals to speak or act for the corporation. We will not construe the charter of the city of Norwalk to provide for such a bizarre result.

The plaintiff also argues that construing the charter not to allow the plaintiff electors to commence suit on behalf of the district would effectively shield the defendants from liability for their allegedly improper acts. In fact, the plaintiff electors do have a remedy in this situation. As the trial court pointed out, the electors could have filed a taxpayers’ suit against the defendant quasi-municipal officers. Highgate Condominium Assn. v. Watertown Fire District, 210 Conn. 6, 15, 553 A.2d 1126 (1989).'The plaintiff electors admittedly failed to allege the existence of the two necessary conditions for such an action in their complaint; see id.; and thus cannot be held to have attempted this form of relief. In light of the availability of a taxpayers’ action in this instance, the plaintiff’s argument that the defendants would be shielded from liability for their improper acts has little merit.

The plaintiff also claims that the trial court improperly dismissed its complaint pursuant to a motion to dismiss rather than requiring the filing of a motion to strike, which, if granted, would still have left the plaintiff with the opportunity to restate its complaint to supply sufficient allegations to support a taxpayers’ suit. We disagree. Under the facts as pleaded in the complaint, the plaintiff electors claimed to be entitled to sue in the name of the taxing district. By their motions to dismiss, the defendants raised the issue of the lack of subject matter jurisdiction.

A motion to dismiss has previously been distinguished from a motion to strike in Gurliacci v. Mayer, 218 Conn. 531, 590 A.2d 914 (1991). A pleading that is legally insufficient on its face, but which would establish a cause of action if facts that may exist were properly pleaded, should be challenged by a motion to strike. Id., 544. In contrast, a motion to dismiss is the proper vehicle to attack the jurisdiction of the court. A motion to dismiss essentially asserts that, as a matter of law and fact, the plaintiff cannot state a cause of action that is properly before the court. In this case, the plaintiff attempted to sue on behalf of the taxing district of the city of Norwalk. We have determined above that the plaintiff electors, as a matter of law and fact, were not entitled to sue in the name of the district under the provisions of the Norwalk city charter. Their only available cause of action, a taxpayers’ suit, would have been filed in their own names, not in the name of the taxing district. See Highgate Condominium Assn. v. Watertown Fire District, supra, 210 Conn. 6; Alarm Appli cations Co. v. Simsbury Volunteer Fire Co., supra, 179 Conn. 541. The court properly granted the defendants’ motions to dismiss.

The judgment is affirmed.

In this opinion the other judges concurred.

       Lorna Church, another commissioner of the taxing district, was also a defendant, but did not participate in this appeal.

       The trial court made no findings regarding the actual identities of the individuals who were attempting to sue in the name of the taxing district. The complaint, however, does describe the plaintiff as “the electors of the body politic, the named plaintiff third taxing district of the city of NORWALK.” Nowhere in the record is it suggested that the individuals attempting to sue in the name of the taxing district have any roles other than that of electors of the district. Thus, “[w]e will look to the plaintiffs’ factual allegations which constitute judicial admissions to determine whether there is an adequate factual basis for the court’s decision.” Stroiney v. Crescent Lake Tax District, 205 Conn. 290, 296, 533 A.2d 208 (1987). Here, the plaintiff has characterized itself as being comprised of electors of the third taxing district, and we accept that as true for the purposes of this appeal.

       The defendants moved to rectify the record on appeal to include a proposed stipulation of the parties that “[t]he sole provision of the Charter of the Third Taxing District of the City of Norwalk upon which [the] plaintiff relies for its claim of authority to institute this action in the name of the Third Taxing District of the City of Norwalk is § 1-114 of the Charter.” They alternatively requested that the judgment be modified along the same lines to reflect an alleged oral statement of the plaintiff’s counsel. The motion to rectify was granted by the trial court without specifying which alternative was adopted. At the time the motion was granted, however, the trial court was aware that the transcript of the oral argument in question had been lost. It has since come to our attention that the plaintiff’s attorney never signed the written stipulation. We therefore decline to limit our consideration of the plaintiffs appeal solely to the provisions of § 1-114 of the charter.

       Taxation liability is provided for in § 1-115 of the charter of the city of Norwalk, which provides in pertinent part: “All the inhabitants and property within the limits of the Third Taxing District shall be liable to taxation to defray any burdens, expenses, and liabilities ... as said taxing district may incur under the provisions of this act.” Norwalk Code, Charter § 1-115.

       Citing Richmond v. Norwich, 96 Conn. 582, 115 A. 11 (1921), the plaintiff argues that the taxing district’s primary function of managing an electric utility has long been recognized as a proprietary function, thus rendering the district analogous to a private corporation whose shareholders have the right to bring a derivative action against members of management in the name of the corporation. Although the operation of an electric utility is not a traditional governmental function, and is not expressly included within General Statutes § 7-326, the taxing district was nonetheless formed as a taxing district in the Norwalk city charter, and was designed to function in the manner of a more traditional quasi-municipal entity. In the absence of an express challenge to the power of a quasi-municipal corporation such as the taxing district to operate an electric utility, we will not question the quasi-municipal nature of the district, and thus are not inclined to treat it any differently than a fire or sewer district simply because its function is to operate electric light works.


source: Caselaw Access Project

author: Schaller, J.

license: Public Domain

text:
    Metropolitan District Commission v. American Federation of State, County and Municipal Employees, Council 4, Local 3713 (1303-101)
    (12572)
    Dupont, C. J., and Heiman and Schaller, Js.
    Argued March 29
    decision released July 22, 1994

      J. William Gagne, Jr., with whom, on the brief, was Harry B. Elliott, Jr., for the appellant (defendant).

      Anthony J. Palermino, with whom, on the brief, was Gary R. Atkinson, for the appellee (plaintiff).
   Schaller, J.

The defendant appeals from the judgment of the trial court vacating an arbitration award pursuant to General Statutes § 52-418. The defendant claims that the trial court improperly granted the application to vacate the award by independently interpreting a provision of the collective bargaining agreement between the parties. We reverse the judgment.

The following facts are relevant to this appeal. The plaintiff and the defendant were parties to a collective bargaining agreement. Article four of the agreement, entitled “Promotion, Transfers, Vacancies,” sets forth the procedures for posting a position. On November 8 and 9,1990, the plaintiff posted the position of “Cross Connection Technician 2.” Pursuant to paragraph 4.16 of the agreement, “[i]f the posting is unacceptable to the Union, a grievance may be submitted . . . .’’The defendant filed a grievance on November 16, 1990, claiming that the posted position included unacceptable, unilateral changes in the job qualifications as well as an incorrect pay scale, and proposing changes for the job posting. The original posting was removed, and, on December 3,1990, the plaintiff posted the position with the correct pay scale. In all other respects, the newly posted notice was identical to the original notice. The defendant did not file a grievance with regard to the December 3, 1990 posted notice.

Pursuant to paragraph 18.6 of the agreement, a panel from the Connecticut State Board of Mediation and Arbitration (arbitrators) conducted an arbitration hearing with regard to the November 8 and 9, 1990 posting. Because the parties were unable to agree on a submission, the arbitrators framed the issue as follows: “Did the [plaintiff] violate the [bargaining agreement] when it posted the position of Cross Connection Technician 2 on December 3, 1990? If so, what shall be the remedy?” On March 3, 1992, the board made various findings and issued the following award: “The [plaintiff] violated the [agreement] when it posted the position of Cross Connection Technician 2 on December 3,1990 without the requested changes. The [plaintiff] shall cease and desist from actions of this nature in the future and it shall re-post the position with the original job description and requirements or qualifications.”

The plaintiff filed an application in Superior Court to vacate the award, and the defendant filed a motion to confirm the award. The plaintiff alleged, pursuant to General Statutes § 52-418, that the arbitrators had exceeded their authority under a section of the arbitration clause of the bargaining agreement, which provided in part that the arbitrators “shall be bound by and must apply all the terms of this agreement . . . .” The plaintiff asserted that the arbitrators’ findings of fact and award were clearly erroneous and unsupported by the record.

The trial court determined that, although the arbitrators had framed the issue with regard to the December 3,1990 posting, that posting had not been grieved and, thus, was not ripe for arbitration pursuant to the agreement. Rather, only the November 8 and 9, 1990 posting had been grieved. The trial court, thus, determined that the arbitrators had exceeded their powers by ignoring paragraph 4.16 of the agreement, which the trial court stated “requires that a grievance be filed as to the December 3,1990 posting.” As a result, the trial court granted the plaintiff’s application to vacate the arbitration award, and the defendant appealed.

“We have stated repeatedly that judicial review of arbitration awards is limited in scope because arbitration is a creature of contract and the parties delineate the power of the arbitrator by the terms of the submis sion. Bruno v. Department of Consumer Protection, 190 Conn. 14, 18, 458 A.2d 685 (1983).” (Emphasis added; internal quotation marks omitted.) Wilson v. Security Ins. Group, 199 Conn. 618, 627, 509 A.2d 467 (1986). “Ordinarily, where the authority to arbitrate devolves from contract, an unrestricted submission carries with it the power to decide, with finality, all issues of fact or law in the proceedings.” (Internal quotation marks omitted.) Bodner v. United Services Automobile Assn., 222 Conn. 480, 501, 610 A.2d 1212 (1992).

Pursuant to the bargaining agreement, the parties had voluntarily agreed to arbitration for settling contract disputes. In the case of such voluntary arbitration, we note that “Arbitration awards are generally upheld and we give deference to an arbitrator’s decision since it is favored as a means of settling disputes. . . . The judicial review of an arbitration award is limited in scope by General Statutes § 52-418 and the terms of the parties’ contract. . . .

“If the submission does not contain limiting or conditional language, then the submission is unrestricted. ... If the submission is unrestricted, the award is final and binding, and cannot be reviewed for factual or legal error. ... In addition, if the submission is unrestricted, an arbitrator is not required to decide the issues presented according to law. . . . Thus, [wjhere the submission does not otherwise state, the arbitrators are empowered to decide factual and legal questions and an award cannot be vacated on the grounds that the construction placed upon the facts or the interpretation of the agreement by the arbitrators was erroneous. Courts will not review the evidence nor, where the submission is unrestricted, will they review the arbitrators’ decision of the legal questions involved. . . . [Bridgeport v. Connecticut Police Dept. Employees Local 1159, 32 Conn. App. 289, 292-94, 628 A.2d 1336, cert. denied, 227 Conn. 925, 632 A.2d 703 (1993)].

“Our Supreme Court has further noted that [e]ven in the case of an unrestricted submission, we have, however, recognized three grounds for vacating an award: (1) the award rules on the constitutionality of a statute; Caldor, Inc. v. Thornton, 191 Conn. 336, 344, 464 A.2d 785 (1983), aff'd, 472 U.S. 703, 105 S. Ct. 2914, 86 L. Ed. 2d 557 (1985); (2) the award violates clear public policy; Watertown Police Union Local 541 v. Watertown, 210 Conn. 333, 339, 555 A.2d 406 (1989); or (3) the award contravenes one or more of the statutory proscriptions of § 52-418. Carroll v. Aetna Casualty & Surety Co., [189 Conn. 16, 22-23, 453 A.2d 1158 (1983)]. ... In our construction of § 52-418 (a) (4), we have, as a general matter, looked to a comparison of the award with the submission to determine whether the arbitrators have exceeded their powers. New Haven v. AFSCME, Council 15, Local 530, [208 Conn. 411, 415, 544 A.2d 186 (1988)]; O & G/O’Connell Joint Venture v. Chase Family Limited Partnership No. 3, 203 Conn. 133, 153, 523 A.2d 1271 (1987); Bic Pen Corporations. Local No. 134, [183 Conn. 579, 584, 440 A.2d 774 (1981)]. Garrity v. McCaskey, supra, [223 Conn. 1, 7, 612 A.2d 742 (1993)].” (Citations omitted; internal quotation marks omitted.) State v. Connecticut Employees Union Independent, Inc., 33 Conn. App. 737, 740-41, 639 A.2d 619 (1994). “In deciding whether the arbitrators have exceeded their powers . . . [t]he memorandum of the arbitrators] is irrelevant. Waterbury Construction Co. v. Board of Education, 189 Conn. 560, 563, 457 A.2d 310 (1983). The memorandum of decision may, however, be examined to determine if an arbitrator has exceeded his or her authority by making an award beyond the scope of the submission. Id.” Board of Education v. AFSCME, 195 Conn. 266, 271, 487 A.2d 553 (1985).

Here, the arbitrators framed the submission in terms of whether the plaintiff violated the bargaining agreement when it posted the position of Cross Connection Technician 2 on December 3, 1990. This unrestricted submission provided the arbitrators with the power to determine all factual and legal questions with regard to the submission. Our inquiry turns to whether, pursuant to § 52-418 (a) (4), the arbitrators “exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.” The arbitrators’ memorandum reveals that the arbitrators determined that “[t]he posting of the revision did not give rise to a requirement that a second grievance had to be filed to proceed to arbitration.”

The interpretation of a contract is generally a question of fact. Gurliacci v. Mayer, 218 Conn. 531, 567, 590 A.2d 914 (1991); Sagamore Group, Inc., v. Commissioner of Transportation, 29 Conn. App. 292, 298, 614 A.2d 1255 (1992). The arbitrators were empowered with the duty to interpret the agreement. Rather than ignore paragraph 4.16 of the agreement, the arbitrators interpreted that paragraph to provide for arbitration without requiring that the defendant file another grievance upon the posting of the position to include the proper pay scale. The award clearly conformed to the submission, as the arbitrators exercised their power to interpret the terms of the agreement and to answer the question posed with the response the plaintiff had violated the agreement by its December 3,1990 posting. In its memorandum of decision, rather than determining whether the award conformed to the submission, the trial court provided an independent interpretation of paragraph 4.16 of the agreement in concluding that it required the defendant to file a separate grievance with respect to the position posted on December 3, 1990. Because such fact-finding was beyond the scope of the trial court’s powers of review, we conclude that the trial court improperly granted the plaintiff’s application to vacate the arbitration award.

The judgment is reversed and the case is remanded to the trial court with direction to render judgment confirming the arbitration award.

In this opinion the other judges concurred.

       We do not address the issue raised by the plaintiff as an alternative ground for affirmance. The plaintiff claimed on appeal that its posting of the position on December 3, 1990, was a proper exercise of management rights. In its memorandum of decision, the trial court disposed of the case on the ground that the arbitrators had failed to construe paragraph 4.16 of the collective bargaining agreement, and the court did not discuss the issue of the proper exercise of management rights. The trial court did not rule on this alternate ground. In State v. One 1981 BMW Automobile, 15 Conn. App. 589, 599, 546 A.2d 879 (1988), this court placed the burden on the defendant-appellee to provide an adequate record for our review of an apparent alternate ground for affirmance that the trial court had not addressed in its memorandum of decision. “[W]e find fatal the defendant’s failure to request an articulation pursuant to Practice Book § 4051 regarding the trial court’s disposition of this claim at trial. Without a clear finding by the trial court of the facts which underlie the defendant’s claim, we do not know the true nature of the issue we are asked to review. The defendant has clearly failed to carry his burden in properly presenting a claim for our review.” Id. The plaintiff did not file a motion for articulation. We also note the following authors’ comment to Practice Book § 4013 (a) (1): “If the alternate issue was not ruled on by the trial court, the issue must be one that the trial court would have been forced to rule in favor of the appellee. Any other test would usurp the trial court’s discretion.” W. Horton & S. Cormier, Connecticut Practice — Practice Book Annotated, Rules of Appellate Procedure (1994 Ed.) § 4013 (a) (1) p. 74, comment. On the record before us, we cannot conclude that the trial court would have been forced to rule in favor of the plaintiff on this claim. We, therefore, decline to address the plaintiff’s alternate ground for affirmance.

       Paragraph 18.6 of the agreement provides in pertinent part: “If . . . the Union elects to file [the grievance] directly to arbitration, the Union only may seek arbitration of the grievance before the State Board.”

       Section 31-91-35 (b) of the Regulations of Connecticut State Agencies provides in pertinent part that “if the parties are unable to agree upon the issue or issues to be decided, the panel shall frame the issues.” Here, the arbitrators did not frame the issue until after the presentation of evidence and argument in the arbitration hearing. Neither party questioned the arbitrators’ power to conduct the proceeding in this manner at the time of the arbitration hearing, and we do not address the propriety of this procedure.

       General Statutes § 52-418 provides in pertinent part: “(a) Upon application of any party to an arbitration, the superior court . . . shall make an order vacating the award if it finds any of the following defects . . . (4) if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.”

       The defendant claimed that the scope of the submission included the provisions of the bargaining agreement, and that the arbitrators, pursuant to the agreement, could not add to, modify, or subtract from the provisions of the agreement. Our conclusion that the arbitrators properly exercised their powers by interpreting the provisions of the agreement makes it unnecessary to address the defendant’s claim as to the scope of the submission.

       We note that this case is distinguishable from White v. Kampner, 229 Conn. 465, 641 A.2d 1381 (1994). In Kampner, the issues concerned, in part, the arbitrability of a dispute and the proper forum to determine arbitrability. The contract contained “two contractual clauses pertaining to the arbitrability of a dispute: a ‘mandatory negotiation’ clause and an ‘arbitration’ clause.” Id., 468. Those clauses provided that the parties must engage in two negotiation sessions prior to arbitration. Id.
      The court noted that “the language of the contract answers the question of whether the trial court or the arbitrator determines issues of arbitrability . . . .[East Hartford v. East Hartford Municipal Employees Union, Inc., 206 Conn. 643, 656-57, 539 A.2d 125 (1988)]; see Gary Excavating, Inc. v. North Haven, 164 Conn. 119, 123, 318 A.2d 84 (1972). . . .” Id., 475 n.10. Where there were no restrictions in the contract as to what issues may be decided by the arbitrators and broad language providing for the unrestricted submission of all disputes, the issue of arbitrability was left to the arbitrators. Id. The court in Kampner also noted that once it is determined that the arbitrators are contractually empowered to decide issue of arbitrability “[w]e agree with the Appellate Court that ‘a trial court may not substitute its own findings regarding whether a party met a procedural precondition to arbitration for those of the arbitrator ....’” Id., 474 n.10, quoting White v. Kampner, 31 Conn. App. 73, 78, 623 A.2d 514 (1993).
      The arbitration clause itself in Kampner, however, provided for the arbitration of any dispute “ ‘which has not yet been resolved under’ the mandatory negotiation provision. (Emphasis added.)” White v. Kampner, supra, 229 Conn. 473. Our Supreme Court concluded that the requirement of negotiation sessions constituted a condition precedent to arbitration, and, on the basis of the language in the contract, that the determination of whether the parties met that condition was not part of the contractual submission and was left to the trial court. Id., 475.
      Here, we do not construe the language contained in article four, titled “Promotions, Transfers, Vacancies,” to require the filing of a grievance as a condition precedent to arbitration. Even if we assume that the filing of a grievance is a precondition to arbitration, it is unclear whether any issue of the arbitrability of the dispute was preserved before the arbitrators. See id., 469-70. Even if an issue was preserved properly, the contract in this case provides for the unlimited submission of issues by stating that the grievance and arbitration procedure applies to “[a]ny dispute . . . involving interpretation or application of the terms of this agreement . . . .’’Asa result, the arbitrators retained the power to decide any issue of arbitrability and the trial court could not substitute its findings for those of the board regarding whether a procedural precondition was met.


author: Spear, J.

text:
    Alan A. Neri et al. v. Carl A. Neri et al.
    (12115)
    Dupont, C. J., and Landau and Spear, Js.
    Argued March 24
    decision released July 29, 1994

      Wesley W. Horton, with whom were Robert M. Shields, Jr., and David S. Doyle, for the appellant (named defendant).

      Anthony P. DiCrosta, with whom, on the brief, was Robert Mirto, for the appellees (plaintiffs).

      William F. Gallagher, with whom, on the brief, was Barbara L. Cox, for the appellees (defendant John L. Neri et al.).
   Spear, J.

The defendant, Carl Neri appeals from a declaratory judgment wherein the ownership of outstanding shares of stock and the composition of the board of directors of the plaintiff Neri Brothers Construction Corporation (Neri Brothers) were determined. The defendant claims that the trial court (1) improperly refused to grant a motion to dismiss the case for improper venue or transfer it to another judicial district, (2) improperly applied the wrong standard of proof to find that the 1979 stock issue was fraudulent, (3) made a clearly erroneous finding of fraud even as measured by the proper standard of proof, (4) improperly voided the 1979 stock issue due to the board of directors’ failure to comply with the formal notice requirements set forth in General Statutes § 33-316 (a) and the corporation’s bylaws, and (5) improperly voided the entire 1979 stock issue for a violation of the preemptive stock rights of minority shareholders pursuant to General Statutes § 33-343 (b). We disagree and affirm the judgment.

The relevant facts are as follows. The plaintiff Alan Neri and the defendant Carl Neri are brothers. They formed Neri Brothers in 1967. At that time, Alan was designated president and director, and Carl was designated vice-president, secretary and director of the corporation. Another brother, John Neri, was named as treasurer and director.

On March 17,1967, the initial issue of corporate stock was allocated. Alan received sixty-six shares and Carl received seven shares. The distribution was based on the value of the assets each brother had contributed to the corporation. On February 29, 1968, a second issue of stock was allocated whereby Alan received two additional shares and Carl received an additional five shares. At this time, John and their mother, Anna Neri, each received five shares.

A third issue of stock was allocated on February 28, 1970. Alan received an additional nine shares and Carl received an additional eight shares. At this time, there were 107 outstanding shares of stock: Alan owned seventy-seven shares (71.96 percent); Carl owned twenty shares (18.7 percent); John owned five shares (4.67 percent); and the estate of Anna Neri owned 5 shares (4.67 percent). In 1979, a fourth issue of stock was allocated and Alan and Carl each received 300 shares. Alan and Carl each conceded that neither John nor Anna was notified or informed of the additional issue of stock. The fourth stock issue substantially altered the interests of all the shareholders. Alan’s interest was reduced from 71.96 percent to 53.2 percent, Carl’s interest grew from 18.7 percent to 45 percent, and John and Anna’s interests decreased respectively from 4.67 percent to 0.7 percent. The validity of the 1979 stock issue is the subject of this appeal.

Carl destroyed all stock certificates issued prior to 1979. He also altered the minutes of a 1986 meeting by inserting a notation that stated that John had been eliminated as a director. Moreover, there were no entries in the minute book for corporate meetings between February 3, 1968, and March 17, 1983. The trial court considered these actions, among others, in finding fraud on the part of Carl.

Alan signed the 1979 stock certificates because Carl had incorrectly informed him that the stock was issued for the sole purpose of providing documentation for the avoidance of corporate tax liability and that the additional shares would have no bearing on the proportional interests of any of the shareholders. The trial court found that Carl admitted that he had changed the amount of the stock issue after speaking to Alan, an action that was indicative of Carl’s intent to obtain what he felt he was due him despite his representations to Alan.

The plaintiffs sought (1) an injunction prohibiting Carl from engaging in or interfering with the operation of Neri Brothers, (2) a declaratory judgment regarding the rights of the parties as to stock ownership, (3) an accounting, and (4) damages. The trial court bifurcated the proceedings and rendered a decision regarding only the percentage of stock owned by each family member. The trial court found that Alan owned seventy-seven shares (71.96 percent), Carl owned twenty shares (18.8 percent), John owned five shares (4.67 percent) and the estate of Anna Neri owned five shares (4.67 percent). The trial court also found that John was and remains a director of the corporation and that the stock issues of 1979 and 1986 were invalid.

I

The defendant first claims that the trial court improperly refused to grant his motion to dismiss the action for improper venue, or alternatively, to transfer the case to the Middlesex judicial district. We need not review this issue.

Contrary to the defendant’s assertion, he did not file a motion to dismiss the action for improper venue. Rather, he filed a motion to dismiss the plaintiffs’ “application for a prejudgment remedy,” alleging that the New Haven judicial district was an improper venue. The trial court denied the motion to dismiss the application, and, with the agreement of the parties, granted a temporary restraining order. The defendant made no further objection to the venue and thereafter filed no other motion to dismiss.

A claim of improper venue may be waived by the parties, unlike subject matter jurisdiction, which cannot be conferred on the court by consent. State v. Orsini, 187 Conn. 264, 269, 445 A.2d 887 (1982). Here, the defendant does not contest the subject matter jurisdiction of the trial court, but challenges only the propriety of the New Haven judicial district as the proper forum.

Appellate review of the venue issue that the defendant raised by the filing of the motion to dismiss the application for a prejudgment remedy is precluded by his inaction after the parties agreed to a partial granting of the relief sought by the plaintiffs.

II

The defendant next claims that the trial court improperly found fraud in the 1979 stock issue pursuant to the application of an improper standard of proof. He claims alternatively that even under the proper standard, the finding of fraud would be clearly erroneous. These claims were raised prior to the trial court’s articulation that it had applied the clear and convincing standard of proof to its finding of fraud.

The defendant’s motion to strike the trial court’s articulation was denied by this court. “An articulation is not an opportunity for a trial court to substitute a new decision nor to change the reasoning or basis of a prior decision.” Koper v. Koper, 17 Conn. App. 480, 484, 553 A.2d 1162 (1989). Rather, an articulation relates back to the original decision and explains the basis for that decision. Therefore, the articulation is considered part of the trial court's original decision. The standard of proof articulated, “clear and convincing evidence,” is the correct standard. See Kilduff v. Adams, Inc., 219 Conn. 314, 326-27, 593 A.2d 478 (1991); Henry v. Klein, 15 Conn. App. 496, 499, 545 A.2d 575 (1988).

The defendant also asserts that even under the proper standard of proof, the trial court’s finding of fraud was clearly erroneous. The defendant contends that the trial court’s finding of fraud was not supported by the evidence and was in conflict with the evidence introduced by him. Essentially the defendant is asking this court to retry the facts determined by the trial court. We decline to do so.

“On appeal, the function of this court is limited solely to the determination of whether the factual findings of the trial court are clearly erroneous . . . .’’ Public Works Supply Co. v. Eveready Machinery Co., 11 Conn. App. 79, 525 A.2d 988 (1987). “The sifting and weighing of evidence is peculiarly the function of the trier. [N]othing in our law is more elementary than that the trier is the final judge of the credibility of witnesses and of the weight to be accorded their testimony. . . . The trier has the witnesses before it and is in the position to analyze all the evidence. The trier is free to accept or reject, in whole or in part, the testimony offered by either party.” (Citations omitted; internal quotation marks omitted.) Cook v. Bieluch, 32 Conn. App. 537, 549-50, 629 A.2d 1175 (1993). “ ‘[WJhere the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision; where the factual basis of the court’s decision is challenged, we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous.’ ” Mitchell v. Mitchell, 31 Conn. App. 331, 336, 625 A.2d 828 (1993).

In its memorandum of decision, the trial court set forth the facts that it found to support its conclusion of fraud, noting that the defendant’s testimony was not credible. The trial court relied on the defendant’s admitted destruction of the stock certificates, the alteration of corporate minutes, the absence of records under his control as secretary of the corporation covering a period of fifteen years and his refusal to hand over documents as evidence of fraud. A review of the entire record convinces us that the factual findings made by the trial court were supported by evidence that the court found credible. Our conclusion that the trial court properly found that the 1979 stock issue was invalid due to the defendant’s fraud is dispositive of this appeal and, therefore, we need not address the defendant’s remaining claims.

The judgment is affirmed.

In this opinion the other judges concurred.

       In the trial court, the defendants were Carl Neri, John Neri, individually and as executor of the estate of Anna Neri, and Fleet Bank. Carl Neri is the only defendant who appealed. We refer to him as the defendant in this opinion.

       General Statutes § 33-316 (a) provides: “Meetings of the board of directors, regular or special, may be held either within or without this state. Regular meetings of the board of directors may be held with or without notice as prescribed in the bylaws. Unless otherwise prescribed, in the bylaws, at least two days ’ written or oral notice of special meetings of the board of directors shall be given to each director. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the board of directors need be specified in the notice or waiver of notice of such meeting unless required by the bylaws or this chapter.” (Emphasis added.)

       The corporate bylaw regarding notice to directors states: “Notice of meetings, other than the regular annual meetings shall be given by service upon each Director in person, or by mailing to him at his last known post office address, at least five (5) days before the date therein designated for such meeting, including the day of the mailing, of a written or printed notice thereof specifying the time and place of such meeting, and the business to be brought before the meeting; and no business other than that specified in such notice shall be transacted at any meeting at which every member of the Board of Directors shall be present, although held without notice, any business may be transacted which might have been transacted if the meeting had been duly called.” (Emphasis added.)

       General Statutes § 33-343 (b) provides: “Upon the offering or sale by a corporation for cash of its shares or convertible securities, each shareholder shall have the preemptive right, subject to the provisions of this section and of the certificate of incorporation, to purchase such shares or convertible securities in proportion to the number of shares held by him, within the time and on the terms fixed by the board of directors, except that such preemptive rights shall not be applicable to the issue of rights or options approved or authorized pursuant to the provisions of section 33-343 (b), or to the issue of shares upon the exercise of such rights or options or to shares or other securities disposed of pursuant to the provisions of § 33-347.”

       Alan Neri and Neri Brothers Construction Corporation are both named as plaintiffs.

       Carl contested the validity of John’s position on the board of directors at trial but this issue was not raised on appeal.

       Carl contested John and Anna’s ownership of five shares each at trial but this issue was not raised on appeal.

       Although the proceedings in the present case were bifurcated, the plaintiffs nonetheless have appealed from a final judgment. See Geib v. McKinney, 224 Conn. 219, 617 A.2d 1377 (1992). In Geib, our Supreme Court ruled on an appeal from a judgment rendered on the report of a trial referee who ordered the issue of partition of the property to be tried separately from the issue of how the proceeds of any sale, if ordered, should be distributed. Id., 227.

       In this appeal Carl does not contest the court’s finding regarding the stock issued in 1986.

       This case is distinguishable from Farricielli v. Personnel Appeal Board, 186 Conn. 198, 207, 440 A.2d 286 (1982), which held that the venue provisions of General Statutes § 4-183 (b) implicated the subject matter jurisdiction of the court. In Farricielli, the plaintiff attempted to appeal from the decision of an administrative agency, which right to appeal existed only under the statutory provisions that created it. Because the venue provision was a part of that statutory requirement, our Supreme Court held that the failure to comply with the venue provision resulted in the absence of subject matter jurisdiction in the trial court. Id., 204. Here, in contrast, the defendant’s right to bring suit was grounded in common law rather than on the basis of a statute. Thus, Farricielli is inapposite.


author: Lavery, J.

text:
    Lena M. Johnson v. Board of Zoning Appeals of the Town of Stratford
    (12564)
    Lavery, Freedman and Spear, Js.
    Argued May 6
    decision released September 6, 1994

      Carl E. Watt, for the appellant (plaintiff).

      John A. Florek, town attorney, for the appellee (defendant).
   Lavery, J.

The issue in this appeal is whether an undeveloped lot, which was created prior to the adoption of zoning regulations and which complied with those regulations when adopted, is protected from later regulations that render it nonconforming. We answer in the negative and affirm the judgment of the trial court.

The plaintiff owns a plot of land fifty feet by approximately 107 feet located in a development on Wells Place in Stratford, and referred to as lot 19. Lot 19 was created when real property owned by Flora Deck- and was subdivided in 1918. A map of the resulting fifty-two lots was accepted by the Stratford selectmen on March 4, 1918, and was recorded.

In 1927, Stratford adopted zoning regulations to which lot 19 conformed. In 1939, lot 19 was purchased by the owner of adjoining lot 18. Until that time, the two lots had been independently owned, separately taxed, and maintained as individual lots. In fact, separate sewer lines were run to each lot. Lot 18 was developed with a single-family house. Although there is some evidence that there had been a house on lot 19, the lot was undeveloped when purchased in 1939.

Stratford amended its zoning regulations in 1945 to require a minimum lot width of sixty feet, ten feet more than the width of lot 19. The plaintiff purchased lots 18 and 19 in 1985, and subsequently sold lot 18. Lot 19 is the last undeveloped lot of the original subdivision. The plaintiff, on five occasions, applied to the Stratford zoning board for a variance to permit her to construct a single-family residence on lot 19. Each petition was denied. The plaintiff appealed the last denial to the Superior Court. That appeal was dismissed without prejudice, however, because the court believed that the plaintiff should have sought a building permit rather than a variance. Johnson v. Board of Zoning Appeals, Superior Court, judicial district of Fairfield, Docket No. CV 90-0275682 (July 3, 1991).

On February 24, 1992, the plaintiff applied to the Stratford planning and zoning administrator for a certificate of zoning compliance in order to obtain a building permit for a single-family house on lot 19. The administrator denied the application on February 25, 1992, explaining that lot 19 did not conform to the zoning regulations and was not exempt from those regulations because (1) the selectmen did not act as a planning commission when they accepted the subdivision of Deckand’s land, and (2) the selectmen did not possess the power to approve a subdivision of land. Thus, because he believed that lot 19 was a nonconforming lot, the zoning administrator denied the application for a certificate of zoning compliance.

The plaintiff appealed the administrator’s denial to the Stratford board of zoning appeals. The board sustained the administrator’s decision on the same grounds as those set forth in the administrator’s letter.

The plaintiff appealed to the Superior Court, claiming that lot 19 was exempt from the sixty foot requirement and that the board had unreasonably and arbitrarily denied her petition. In a thorough opinion, the trial court reviewed General Statutes § 8-26a and found that the Stratford selectmen did not act as a planning commission in 1918, such that their acceptance of the subdivision map exempted lot 19 from complianee with subsequent zoning regulations. The trial court further found that lot 19 was not shielded from subsequent zoning regulations by General Statutes § 8-2 because the land had not been irrevocably committed to a particular use. The court concluded, therefore, that lot 19 did not conform to the applicable zoning regulations and that the board properly denied the plaintiffs petition.

We agree with the trial court’s interpretation of § 8-26a. Subsection (b) of that statute shields from subsequent zoning regulations lots shown in a subdivision plan that was approved prior to the regulatory changes by the planning commission or other body exercising the powers of a planning commission. Approval of a subdivision plan by town selectmen acting in their capacities as selectmen cannot, however, be equated with approval by a planning authority. Lebanon v. Woods, 153 Conn. 182, 194, 215 A.2d 112 (1965). If, however, the Stratford selectmen exercised the powers of a planning commission when they adopted the map depicting lot 19, then lot 19 is shielded from the sixty foot requirement. Therefore, we must review the source of the planning authority wielded by the Stratford selectmen in 1918.

The Stratford selectmen could have derived their planning authority from only two sources: General Statutes (1918 Rev.) § 5125 and No. 264 of the 1913 Special Acts, as amended by No. 447 of the 1917 Special Acts. The former authorized the selectmen to divide and otherwise dispose of common lands. The latter authorized the selectmen to regulate building construction and demolition, and lay out public ways and grounds. Neither provided the selectmen with the authority to divide private property or otherwise act as a planning commission. Therefore, we agree with the trial court’s assessment that the subdivision map of Deckand’s property was not properly approved as required by § 8-26a (b). Lot 19 is not shielded from subsequent zoning regulations by that section.

We also agree with the trial court’s interpretation of § 8-2. Merely recording a map of land prior to the advent of zoning regulations does not automatically exempt a nonconforming lot from subsequent regulations. Sherman-Colonial Realty Corp. v. Goldsmith, 155 Conn. 175, 183, 230 A.2d 568 (1967); Lebanon v. Woods, supra, 153 Conn. 194; Corsino v. Grover, 148 Conn. 299, 314, 170 A.2d 267 (1961). Where land is “irrevocably committed” to a particular use, however, § 8-2 will protect that use from the subsequent enactment of zoning laws. Because undeveloped land has not been “irrevocably committed” to any particular use, § 8-2 does not protect nonconforming, undeveloped lots. See Sherman-Colonial Realty Corp. v. Goldsmith, supra, 183; Corsino v. Grover, supra, 314. Local regulations may, however, provide such protection. Archambault v. Wadlow, 25 Conn. App. 375, 379-80, 594 A.2d 1015 (1991).

In this case, the applicable local zoning regulations do not protect lot 19 from the sixty foot requirement. Lot 19 was a conforming lot under the pre-1945 zoning regulations. Section 14.1 of the Stratford zoning regulations defines a nonconforming use as any use of a lot that does not conform to the regulations. Although the regulations include in the definition of “lot” parcels of land that have not yet been developed, the undeveloped property must be used to be protected as a nonconforming use. Because lot 19 was not in use when the sixty foot width requirement was adopted in 1945, it is not shielded from that requirement.

In reaching this conclusion, we note that merger does not apply to this case, even though lot 19 was jointly owned with lot 18 between 1939 and 1985. Contiguous land owned by the same person can merge into one lot if the owner so intends or the relevant zoning regulations so require. See Iannucci v. Zoning Board of Appeals, 25 Conn. App. 85, 89, 592 A.2d 970 (1991); Neumann v. Zoning Board of Appeals, 14 Conn. App. 55, 60, 539 A.2d 614, cert. denied, 208 Conn. 806, 545 A.2d 1103 (1988). Once merged, the lots form one lot that meets or more closely approximates the zoning requirements and the separate lots lose their exception for nonconformance. Thus, if merger applied to this case, lot 19 would have lost its character as a separate, nonconforming lot when it was purchased by the owner of lot 18.

That scenario, however, does not apply. The record reveals that throughout the history of lots 18 and 19, the owners have treated the lots as separate entities. We can divine nothing in the record that suggests that the owners intended to merge the property. See Iannucci v. Zoning Board of Appeals, supra, 25 Conn. App. 89 (owner’s intent is inferred from conduct with respect to land). Moreover, the Stratford zoning regulations do not require merger explicitly and do not support an inference that merger was intended. See Neumann v. Zoning Board of Appeals, supra, 14 Conn. App. 60 (noting that merger can be derived from examination of entire zoning ordinance). Section 1.24 defines a lot as “[a] plot or parcel of land,” and permits no inference that the term lot includes adjacent parcels of land under single ownership. Cf. id., 60-61. Thus, the unity of ownership did not merge lots 18 and 19.

This case is similar to Kulak v. Zoning Board of Appeals, 184 Conn. 479, 440 A.2d 183 (1981). Both Kulak and the present case dealt with a landowner seeking to build on an undersized lot, which was part of a subdivision created long before zoning. In both cases the lot conformed to the zoning requirements when they were first enacted and were rendered nonconforming by later regulations. In Kulak, our Supreme Court ruled that because the nonconformity was created by the zoning change and not by the actions of the owner, the owner could and should have sought a variance. Id., 482. Similarly, we conclude that the plaintiff in this case “has the . . . right to seek a variance and, if [her] request is supported in law, to obtain the variance.” Id.

The judgment is affirmed.

In this opinion the other judges concurred.

       The planning and zoning administrator’s letter provided: “I have reviewed your application for a building permit and certificate of zoning compliance for [lot 19] and offer the following comments.
      “(1) Lot 19 is located in an RS-4 District, which requires a minimum lot width of 60 feet. Lot 19 does not comply with Section 4.2 of the Zoning Regulations in that it has a lot width of only 50 feet.
      “(2) On approximately five occasions applications to the Board of Zoning Appeals for variances of lot width and lot area were denied.
      “(3) You have noted that this lot is shown on a map of Floral Park which was accepted and approved by the Selectmen of the Town of Stratford on March 14,1918. In a legal memorandum from J. Roger Shull, former Assistance Town Attorney, dated June 12,1989, the case of Lebanon v. Woods, [153 Conn. 182, 215 A.2d 112 (1965)], was cited, which stated that ‘our Supreme Court held that selectmen are not an other body exercising the powers of a planning commission.’ In the case of Sherman[-Colonial Realty Corp. v. Goldsmith, 155 Conn. 175, 230 A.2d 568 (1967)], it is stated that ‘the mere filing of maps for subdivision of a parcel of real estate does not necessarily immunize the subject property from subsequent zoning regulations.’ Therefore, since the map of Floral Park does not bear endorsement of a Planning and Zoning Commission or other body exercising its powers, it is not an ‘approved subdivision under Section 8-26a of the General Statutes and is not exempt from subsequent changes in the zoning regulations.
      “(4) I have read House Bill 692 passed by the General Assembly in 1913, which was an Act Creating a Board of Finance in the Town of Stratford, Increasing the Powers of the Selectmen. While the overall powers of the Selectmen may have been broadened by this bill, it is my opinion that they were not broadened to encompass the subdivision of land.
      “Therefore, in summary, Lot 19 is not in compliance with Section 4.2 of the Zoning Regulations and the required variances from the Board of Zoning Appeals for lot width were not obtained. In addition, this lot is not in an ‘approved’ subdivision under Section 8-26a of the General Statutes and, therefore, must comply with the Zoning Regulations currently in effect. House Bill 692 passed in 1913 did not grant the Selectmen the power to approve the subdivision of land.
      “It is for the above reasons why I am denying the Application for a Certificate of Zoning Compliance for Lot 19 on Wells Place.”

       General Statutes § 8-26a (b) provides: “Notwithstanding the provisions of any general or special act or local ordinance, when a change is adopted in the zoning regulations or boundaries of zoning districts of any town, city or borough, no lot or lots shown on a subdivision plan for residential property which has been approved, prior to the effective date of such change, by the planning commission of such town, city or borough, or other body exercising the powers of such commission, and filed or recorded with the town clerk, shall be required to conform to such change.”

       General Statutes § 8-2 provides in pertinent part: “[Zoning] regulations shall not prohibit the continuance of any nonconforming use . . . existing at the time of the adoption of such regulations. . . .”

       General Statutes (1918 Rev.) § 5125 provides: “The selectmen of any town, where there is no proprietors’ committee of common and undivided lands, shall have the same power in regard to common and undivided lands, and the laying out and dividing the same, as proprietors' committees have; and their fees shall be paid by the person requesting their services.”

       No. 264, § 11, of the 1913 Special Acts, as amended by No. 447, § 1, of the 1917 Special Acts, provides in pertinent part: “The board of selectmen of the town of Stratford shall have power ... to make and enforce rules and regulations concerning the disuse, removal and demolition of any building ... to issue permits for the removal of buildings ... to provide for laying out, establishing, grading, making, repairing, discontinuing or altering highways, streets ... to prescribe the width of all highways, streets, sidewalks and gutters . . . .”

       Section 14.1 of the Stratford zoning regulations provides in pertinent part: “A nonconforming use is a use of any lot or building which does not conform to the regulations applicable to the zone in which the same shall be located, but which legally existed at the effective date of these regulations or at the effective date of any amendment thereto or any change in the boundaries of any zoning district herein or hereafter established which creates the non-conformity. ...”

       Section 1.24 of the Stratford zoning regulations defines a lot as, “[a] plot or parcel of land occupied or capable of being occupied by one principal building and the accessory buildings or uses customarily incident to it, including such open spaces, street frontage and parking as are required by these regulations.”


author: Freedman, J.

text:
    Bernard O’Shea v. Jeffrey Mignone et al.
    (11522)
    Heiman, Freedman and Schaller, Js.
    Argued June 9
    decision released September 6, 1994

      Ernest F. Teitell, with whom, on the brief, were John D. Josel, Jonathan M. Levine and Jack Zaremski, for the appellant (plaintiff).

      Peter J. Dauk, with whom, on the brief, was Lawrence F. Reilly, for the appellees (defendants).
   Freedman, J.

The plaintiff appeals from the judgment of the trial court in favor of the defendants, Jeffrey Mignone and D.L. Petersen Trust, rendered after a jury trial in a negligence action. On appeal, the plaintiff claims that the trial court improperly (1) admitted two hearsay statements, (2) denied the plaintiffs request that a juror be excused for cause where that juror expressed a prejudice against police officers, and (3) instructed the jury to disregard the plaintiffs arguments that Mignone had imposed conditions on his submitting to hypnosis that were inconsistent with his denial of negligence. The defendants argue as an alternative ground for affirmance that the general verdict rule obviates review of the plaintiffs first and third claims. We reverse the judgment of the trial court.

We first consider the defendants’ claim that the general verdict rule precludes our review of two of the plaintiff’s claims. In their answer, the defendants pleaded contributory negligence as a special defense. The defendants claim that because the jury returned a general verdict in their favor, all issues must be presumed to have been found in their favor. The defendants argue, therefore, that we must presume that the jury found that the plaintiff had caused his own injuries.

“The so-called general verdict rule provides that, if a jury renders a general verdict for one party, and no party requests interrogatories, an appellate court will presume that the jury found every issue in favor of the prevailing party. . . .’’(Internal quotation marks omitted.) Curry v. Burns, 225 Conn. 782, 786, 626 A.2d 719 (1993). “ ‘A party desiring to avoid the effects of the general verdict rule may elicit the specific grounds for the verdict by submitting interrogatories to the jury.’ Finley v. Aetna Life & Casualty Co., [202 Conn. 190, 203, 520 A.2d 208 (1987)]. It follows that where the court has denied a proper request for interrogatories . . . the general verdict rule does not apply so as to preclude appellate review of error relating to any ground upon which the jury may have rested its verdict and to which an appropriate interrogatory has been directed.” Pedersen v. Vahidy, 209 Conn. 510, 514, 552 A.2d 419 (1989).

Here, the plaintiff submitted the following proposed interrogatories to the trial court. “1. Was [Mignone] driving the motor vehicle that struck the plaintiff? 2. Did the negligence of [Mignone] proximately cause the plaintiff’s injuries? 3. Did the negligence of the plaintiff proximately cause his own injuries? 4. What percentage of negligence which proximately caused the plaintiff’s injuries is attributable to each party? What is the percentage of negligence of the defendants on trial? What is the percentage of negligence of the plaintiff? 5. What sum of money would you award to justly compensate the plaintiff for all his damages which have resulted from injuries he sustained in this accident?” The trial court determined that such interrogatories were not helpful to the jury and denied the plaintiff’s request to submit them to the jury. The defendants did not claim that the interrogatories were improper nor did the trial court find them to be improper. We conclude, therefore, that the trial court’s refusal to submit the interrogatories to the jury prevents the application of the general verdict rule in this case, and, therefore, we address the merits of the plaintiffs claims. See id.

The following facts are necessary for the resolution of this appeal. On May 10,1986, the plaintiff was struck by a hit-and-run driver as he walked across West Putnam Avenue in Greenwich. As a result of the accident, the plaintiff suffered multiple injuries. There were at least five eyewitnesses to the accident.

Mignone testified that he had witnessed the accident and that at the time of the accident he was driving a silver, four-door 1985 Oldsmobile Cutlass Supreme. He further testified that a small two-door, red, “boxy” foreign car with black bumpers and square, horizontal rear lights struck the plaintiff, and then continued on, stopping approximately 100 yards from the scene. Mignone also testified that he stopped his car alongside the red car and watched the driver of the red car, a woman, get out and run back toward the scene. According to Mignone, the driver was “hysterical” and “upset.” Mignone then left the scene.

At trial, five eyewitnesses testified as to their observations at the scene of the accident. One of the witnesses, Marie Levesque, testified that at the scene she mistakenly had told the police that she believed the car that struck the plaintiff was red in color, but that two days later she expressed reservations about her prior description of the color of the car. The remaining witnesses testified either that the car that struck the plaintiff was light in color or that they had not seen the car.

While cross-examining Sergeant Richard Taracka, the defendants attempted to enter into evidence the police report of the Greenwich police department as an exhibit. The plaintiff objected to two statements contained in the police report on the ground that they were inadmissible hearsay not within an exception. Both statements subsequently were admitted into evidence by the trial court.

“A police report generally is admissible as a business record under General Statutes § 52-180. State v. Sharpe, 195 Conn. 651, 663, 491 A.2d 345 (1985). To qualify under this statute the report must be based entirely upon the police officer’s own observations or upon information provided by an observer with a business duty to transmit such information. Id.; D’Amato v. Johnston, 140 Conn. 54, 59, 97 A.2d 893 (1953). For example, a report prepared by an officer in charge of an accident investigation is admissible in its entirety, despite the fact that it contains information received from other officers assisting in the investigation. Such a report is not admissible, however, if it contains information furnished by a mere bystander. Information obtained from a person with no business duty to report is admissible only if it falls within some other hearsay exception. State v. Sharpe, supra, 663-64; State v. Palozie, 165 Conn. 288, 295, 334 A.2d 468 (1973).” In re Jesus C., 21 Conn. App. 645, 652-53, 575 A.2d 1031, cert. dismissed, 216 Conn. 819, 581 A.2d 1055 (1990); see also Emhart Industries, Inc. v. Amalgamated Local Union 376 UAW, 190 Conn. 371, 385, 461 A.2d 422 (1983).

The first statement from the police report that the plaintiff claims was improperly admitted is as follows: “[Greenwich police department] patrols advised to be watchful for any vehicle . . . [s]mall in size, having rectangular tail-lights, and believed to be Red in color.” The information contained in the statement regarding the description of the car was based on Levesque’s statement to the police about which she later expressed reservation. Levesque was simply a bystander to the accident and was under no business duty to report any information to the police. Her statement to the police does not qualify as a business record under that exception to the hearsay rule and is admissible only if it falls within some other hearsay exception. See State v. Sharpe, supra, 195 Conn. 663-64; State v. Palozie, supra, 165 Conn. 295; In re Jesus C., supra, 21 Conn. App. 652-53.

The ground on which the trial court overruled the plaintiffs objection to the admission of this statement is not clear from the trial transcript. The defendants assert that the statement was admitted for the sole purpose of explaining the subsequent actions of the police officers. The plaintiff objected at trial on the ground that the statement constituted hearsay not within an exception and that the subsequent actions of the police officers were not relevant in the case. The trial court then gave the jury a cautionary instruction, instructing that the statement should not be considered for its truth but only to explain the action taken by the police officers. We, therefore, presume that the trial court found that the hearsay statement was admissible as nonhearsay because its purpose was to show the effect on the police officers who heard the statement. See C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 11.3.3.

“Statements admitted to show the effect on the hearer are not hearsay, but they should not be admitted for that purpose unless it is clear that the hearer’s state of mind or subsequent conduct is relevant. State v. Robinson, 213 Conn. 243, 257-59, 567 A.2d 1173 (1989).” C. Tait & J. LaPlante, supra, (1993 Sup.) § 11.3.3. “Trial courts have broad discretion in determining the relevancy of evidence. State v. Piskorski, 177 Conn. 677, 695, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194 (1979). ‘Evidence is admissible when it tends to establish a fact in issue or to corroborate other direct evidence in the case. One fact is relevant to another fact whenever, according to the common course of events, the existence of the one, taken alone or in connection with other facts, renders the existence of the other either certain or more probable. Unless excluded by some rule or principle of law, any fact may be proved which logically tends to aid the trier in the determination of the issue. Evidence is admitted, not because it is shown to be competent, but because it is not shown to be incompetent. No precise and universal test of relevancy is furnished by the law, and the question must be determined in each case according to the teachings of reason and judicial experience.’ . . . State v. Schaffer, 168 Conn. 309, 317, 362 A.2d 893 (1975), quoting Federated Department Stores, Inc. v. Board of Tax Review, 162 Conn. 77, 82, 291 A.2d 715 (1971).” State v. Sharpe, supra, 195 Conn. 659.

The issue in this case was whether Mignone was operating the car that hit the plaintiff. The subsequent actions of the police were not at issue in the case, nor would the subsequent actions of the police aid the trier in determining whether Mignone was operating the car that struck the plaintiff. Because the subsequent actions of the police were not relevant to an issue in the case, evidence demonstrating those actions is inadmissible. We conclude, therefore, that the trial court improperly admitted the statement from the police report on the basis of Levesque’s statement to the police.

The defendants claim that the cautionary instruction cured the trial court’s improper evidentiary ruling. Because we conclude that the subsequent actions of the police officers were not relevant, the curative instruction that allowed the evidence to be considered “for action taken by the police” could not cure the improper evidentiary ruling.

The second statement from the police report that the plaintiff claims was improperly admitted is as follows: “The subject, who is known by this officer and did not want his name used related that he also observed a red colored vehicle, small in size parked in the last parking space on the North side of West Putnam Avenue just East of Deerfield Drive. . . . The subject identified the vehicle as being small, possibly a Volkswagen, Reddish in color and fairly new.”

During Taracka’s testimony, the defendants attempted to introduce this statement by reading the portion of the police report that contained the statement. Taracka testified that William P. Connors, a special police lieutenant with the Greenwich police department, was the unidentified witness. Outside the presence of the jury, Connors testified that he was not present at the scene of the accident nor had he given any statement to the police regarding the accident. Taracka then testified that he was not 100 percent positive that Connors was in fact the unidentified witness. He said that two days after the accident, at 7:30 a.m., he went to State Line Tire Company to inquire about a red car parked in front of the building. While there, he spoke with the employee who made the statement that was in the police report. Taracka further stated that “Connors was the only person that [he] knew at State Line Tire. And being over such a period of time, which was [his] mistake, [he] assumed that it was [Connors] that [he] talked with.” Connors testified that he had previously worked at State Line Tire Company but that his employment there ended in 1981. The accident took place in 1985. In addition, he testified that he had never been at State Line Tire Company at 7:30 a.m., because, at the time he was employed there, he worked the shift that began at 9:00 a.m.

At the conclusion of this testimony, the trial court ruled that the statement was not admissible as a business record at that time. In the presence of the jury, the defendants’ counsel questioned Taracka regarding the statement in the police report and read the statement out loud to Taracka. The plaintiff objected to the defendant reading from a document not in evidence. The trial court ruled that it would not allow the police report itself into evidence but that it would allow the reading of the statement from the police report because it assumed that the statement would meet the catchall exception to the hearsay rule. The trial court further stated that “[the] ruling was based on what [it] thought was going to transpire to the effect that Mr. Connors was going to take the stand and deny that he made the statement that the defendant read into the record. And then [it] thought it was coming in as an exception to the hearsay rule.”

The trial court later ruled that Connors was under a duty to relate information to the police. It appears that the trial court ruled that the statement satisfied the business record exception. We will review this claim as though the trial court admitted the hearsay statement under both the business record exception and the catch-all exception to the hearsay rule.

It is clear that this statement does not satisfy the requirements of the business record exception because in order for that to be the case there must be a finding that the person who made the statement had a duty to report it. It is within the trial court’s discretion to determine whether the requirements of the statute have been met. Shuchman v. State Employees Retirement Commission, 1 Conn. App. 454, 457-58, 472 A.2d 1290 (1984). Here, Connors testified that he was certain he had never given such a statement to the police, and Taracka conceded that he was not certain that it was in fact Connors who gave him the statement. Because the identity of the witness could not be determined, the trial court should not have found that the witness had a duty to report such information. See State v. Milner, 206 Conn. 512, 521, 539 A.2d 80 (1988); but see Shuchman v. State Employees Retirement Commission, supra, 1 Conn. App. 458-59 (where informant was most likely in class of persons having duty to report such information, it was not necessary to prove their specific identity). There is no evidence tending to show that the unidentified witness belonged to a particular class of persons, much less a class having a duty to report observations of an accident. The trial court, therefore, improperly allowed the statement into evidence under the business record exception to the hearsay rule.

With respect to the trial court’s ruling that the statement was admissible under the catch-all or residual exception to the hearsay rule, we conclude that this exception also is not applicable. “This exception admits into evidence statements that are technically hearsay and which do not fit within any traditional exception. State v. Sharpe, [supra, 195 Conn. 664]; State v. Stepney, 191 Conn. 233, 249-50, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772 (1984); C. Tait & J. LaPlante, supra, [2d Ed. 1988] § 11.25. Such statements are admissible provided that (1) there is a reasonable necessity for admission, and (2) there is an adequate basis to believe the statements are as reliable and trustworthy as other admissible hearsay. State v. Sharpe, supra, 665.

“The necessity prong is met when the facts in the statement will be lost unless admitted as hearsay, either because the declarant is unavailable or because there is no equally probative alternative source. Id.; In re Jason S., 9 Conn. App. 98, 106, 516 A.2d 1352 (1987); 5 Wigmore, Evidence (Chadbourn Rev. 1974) § 1421. The statement must also contain information necessary to the resolution of the case. State v. Erhardt, 17 Conn. App. 359, 368, 553 A.2d 188 (1989).” State v. Bollinger, 20 Conn. App. 530, 539, 568 A.2d 1058, cert. denied, 215 Conn. 805, 574 A.2d 220 (1990).

We conclude that the reliability prong of the test was not met because the “statement was not imbued with guarantees of reliability and trustworthiness sufficient to support its admission.” State v. Outlaw, 216 Conn. 492, 499, 582 A.2d 751 (1990). First, the witness “was not ‘a witness at the trial and available for cross-examination.’ [State v. Sharpe, supra, 195 Conn.] 665. Cross-examination, ‘the greatest legal engine ever invented for the discovery of truth,’ was therefore absent in this case with respect to the [unidentified witness’ observation of the accident]. 5 J. Wigmore, Evidence (Chadbourn Rev. 1974) § 1367, p. 32.” State v. Outlaw, supra, 499; see also State v. Oquendo, 223 Conn. 635, 668, 613 A.2d 1300 (1992).

In addition, the record does not include any information that would enable the court to determine the trustworthiness and reliability of the statement of the anonymous witness. The trial court, therefore, improperly admitted the hearsay statement under the catchall or residual exception to the hearsay rule.

Having concluded that the trial court improperly admitted both hearsay statements, we must next determine whether the improper rulings were harmful and thus require our reversal of the trial court’s judgment. “We have often stated that before a party is entitled to a new trial because of an erroneous evidentiary ruling, he or she has the burden of demonstrating that the error was harmful. . . . When determining that issue in a civil case, the standard to be used is whether the erroneous ruling would likely affect the result.” (Citations omitted; internal quotation marks omitted.) Swenson v. Sawoska, 215 Conn. 148, 153, 575 A.2d 206 (1990).

The defendants claim that, even if we assume that the two hearsay statements were admitted improperly, the evidence was merely cumulative and its admission would not constitute reversible error. We do not agree. The only evidence supporting Mignone’s claim that a red car hit the plaintiff was his own testimony and the two improperly admitted hearsay statements. Without the two improperly admitted statements, there was no evidence other than Mignone’s own testimony to support the defendants’ theory of the case. We conclude, therefore, that the admission of the two statements was harmful and requires our reversal of the judgment of the trial court.

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

In this opinion the other judges concurred.

       Jeffrey Mignone was the operator of the vehicle in question and D.L. Petersen Trust owned the vehicle.

       Because we reverse the judgment of the trial court on the ground that it improperly admitted hearsay statements, we need not reach the plaintiff’s remaining claims.

       Taracka is a Greenwich police officer who became involved in the investigation of this accident two days after its occurrence.

       The court instructed the jury as follows: “Let me say that the testimony that you just heard under our rules cannot be considered for the truth that there was a car of that description at the time of the accident but can be considered for action taken by the police and I will have further comment when it comes appropriate at the end of the case as to the point that I just described.”