text:
    Ditchkus Real Estate Company v. Dirck A. Storm
    (9566)
    Dupont, C. J., Daly and Norcott, Js.

      Argued April 22
    decision released June 18, 1991

      William F. Gallagher, with whom, on the brief, were George Jaser and Cynthia C. Bott, for the appellant (plaintiff).

      Thomas B. Lynch, for the appellee (defendant).
   Daly, J.

The plaintiff appeals from a summary judgment rendered in the defendant’s favor on September 12, 1990. The plaintiff initiated suit complaining that the defendant had failed to pay a commission due the plaintiff upon the sale of the defendant’s property located at 520 North Street in the city of Milford. The plaintiff claims on appeal that the trial court improperly found that the plaintiff was not due its commission and incorrectly concluded there was no genuine issue of material fact. We disagree and affirm the judgment of the trial court.

The following facts were found by the trial court in its memorandum of decision. The plaintiff and the defendant originally entered into a written listing agreement for six months, beginning on May 29,1986, and ending on November 29, 1986. The contract provided that the plaintiff would receive a 10 percent commission of the agreed sales price “if during the term of this contract (a) the listed property is sold or (b) we, you, or anyone else finds a buyer ready, willing and able to buy the listed property, either for the listed price or any other price acceptable to me.” On August 1, 1986, the defendant signed a sales contract to sell the property to Running Brook Properties (RBP), contingent upon the zoning approval to construct a two hundred unit condominium project. Thereafter, on August 13,1987, the defendant and RBP renegotiated the transaction and signed a new sales contract contingent upon zoning approval for a seventy-four unit complex. Subsequently, the defendant signed an agreement with the plaintiff on September 24, 1987, that granted the plaintiff a 5 percent commission for the sale of the property, specifically referring to the contract dated August 13, 1987, between the defendant and RBP. This contract made no reference to the expired listing agreement between the plaintiff and the defendant and thus did not extend or renew it.

The defendant and RBP were unable to obtain the zoning approval and, therefore, their contract of August 13, 1987, failed due to the unfulfilled contingency. On June 1, 1989, RBP entered into a successful sales contract with the defendant, without contingencies, and the property was sold to RBP.

This court reviews the propriety of a summary judgment by examining whether “the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Practice Book § 384; Siudyla v. ChemExec Relocation Systems, Inc., 23 Conn. App. 180, 182, 579 A.2d 578 (1990). The evidence is viewed in the light most favorable to the opponent of the summary judgment. Id., 185.

The plaintiff claims that it provided the defendant with a buyer ready, willing and able to purchase the listed property during the six month period when the listing contract was in effect, and thus is entitled to the sales commission. The plaintiff argues that the trial court decided issues of material fact to determine that the resulting 1989 sales contract, between the defendant and RBP, was not the successful result of continuous negotiations that began during the listing period when the plaintiff brought the parties together. We do not agree.

“To recover a commission, a broker must ordinarily show (1) that he has produced a customer ready, willing and able to buy on terms acceptable to the seller, or (2) that he has brought the buyer and seller to an enforceable agreement. ... He must also show that he has complied with General Statutes § 20-325a.” (Citations omitted.) Howland v. Schweir, 7 Conn. App. 709, 713, 510 A.2d 215 (1986); see McCutcheon & Burr, Inc. v. Berman, 218 Conn. 512, 519, 590 A.2d 438 (1991). During the six month period when the plaintiff had a valid listing agreement with the defendant, the plaintiff produced a buyer who entered into negotiations with the defendant to purchase his property. As a result of these negotiations, the defendant and RBP signed a sales contract that was contingent upon obtaining zoning approval. If the zoning approval was not obtained by RBP, then the contract would be null and void. The plaintiff produced a buyer who was not ready or willing to purchase the defendant’s property unless a certain contingency was fulfilled. See Menard v. Coronet Motel, Inc., 152 Conn. 710, 710-12, 207 A.2d 378 (1965); Setaro v. Botelho, 4 Conn. Cir. 721, 723, 239 A.2d 560 (1967). Thus, the contract between the defendant and RBP was void before the expiration of the listing agreement.

The second contract between the defendant and RBP in August, 1987, also failed for similar reasons as the first contract. Although this second contract was formed after the expiration of the plaintiff’s listing agreement with the defendant, the defendant and the plaintiff executed another agreement granting the plaintiff a 5 percent commission on the specified August, 1987 contract. This agreement did not refer to or revive the expired listing agreement.

After the August, 1987 contract between the defendant and RBP was nullified due to another failed contingency, almost two years transpired before the defendant and RBP came to their agreed terms in a sales contract dated June 1,1989. Moreover, the parties entered into this final sales contract two years and seven months after the termination of the plaintiff’s listing agreement with the defendant. A listing agreement’s termination date cannot thereafter be construed as an open ended listing. See General Statutes § 20-320 (6); Maretz Franford, Inc. v. Kramer, 7 Conn. App. 120, 128 n.2, 508 A.2d 35 (1986). The requirements of General Statutes § 20-325a are strictly applied to listing agreements; McCutcheon & Burr, Inc. v. Berman, supra, 521; and their terms are likewise strictly construed. Howland v. Schweir, supra, 714. The plaintiffs argument would have us circumvent our statutes and allow for de facto claims that would extend listing agreements indefinitely.

The plaintiff failed to produce a buyer ready, willing and able to enter into a viable sales contract during the time period when a valid listing agreement was in effect. Considering all the facts contained in the record construed in a light most favorable to the plaintiff, we conclude that the trial court correctly found no contested issues of material fact and properly granted summary judgment to the defendant.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 20-325a provides in pertinent part: “(a) No person who is not licensed under the provisions of this chapter, and who was not so licensed at the time he performed the acts or rendered the services for which recovery is sought, shall commence or bring any action in any court of this state, after October 1,1971, to recover any commission, compensation or other payment in respect of any act done or service rendered by him, the doing or rendering of which is prohibited under the provisions of this chapter except by persons duly licensed under this chapter.
      “(b) No person, licensed under the provisions of this chapter, shall commence or bring any action in respect of any acts done or services rendered after October 1,1971, as set forth in subsection (a), unless such acts or services were rendered pursuant to a contract or authorization from the person for whom such acts were done or services rendered. To satisfy the requirements of this subsection any such contract or authorization shall (1) be in writing, (2) contain the names and addresses of all the parties thereto, (3) show the date on which such contract was entered into or such authorization was given, (4) contain the conditions of such contract or authorization and (5) be signed by the owner or an agent authorized to act on behalf of the owner only by a written document executed in the manner provided for conveyances in section 47-5, and by the real estate broker or his authorized agent.”


source: Caselaw Access Project

author: Daly, J.

license: Public Domain

text:
    Alfred Catucci et al. v. Robert J. Ouellette
    (9449)
    Daly, Foti and Landau, Js.
    Argued April 23
    decision released June 18, 1991

      Peter B. Rustin, with whom, on the brief, was Arnold Sbarge, for the appellant (defendant).

      Richard C. Sanger, for the appellees (plaintiffs).
   Daly, J.

The plaintiffs, Alfred Catucci and his son, Thomas Catucci, instituted a two count complaint against the defendant claiming, first, a violation of the Connecticut Unfair Trade Practices Act (CUTPA) and, second, a fraudulent nondisclosure in connection with a real estate transaction. After a trial to the court, a judgment was rendered in favor of the plaintiffs on both counts, and the defendant appealed.

The trial court found the following facts. On January 11, 1988, the defendant placed an advertisement in the Bristol Press offering for sale lot forty-nine on Lakeshore Drive in the town of New Hartford. The plaintiff Thomas Catucci initially responded to the defendant’s advertisement, inspected the lot and agreed to purchase it on January 16,1988, for $56,000. Two days later, on January 18, the defendant conveyed the lot to the named plaintiff for $50,343.67.

Subsequently, the son made numerous attempts to obtain a sewer permit to construct premises on the lot, without success. The trial court found that the defendant had been denied an application to construct a subsurface sewage system on August 19, 1986, and that the defendant failed to disclose this information to the plaintiffs, although he knew that the plaintiffs had purchased the lot to construct a house. The defendant actually supplied a list of builders to assist the plaintiffs in their home construction. This failure to disclose was found fraudulent. The named plaintiff transferred the lot to his son about November 1, 1988.

The trial court granted the plaintiffs the relief requested in the first count under CUTPA, pursuant to General Statutes § 42-110g (a), namely, actual damages plus costs and attorney’s fees. These actual damages consisted of enumerated special damages amounting to $7626.62, which included the plaintiffs’ expenditures for taxes, recording fees, permit, testing, evaluation and analysis for the property. The court also ordered as equitable relief a reconveyance of the lot back to the defendant and restitution in the amount of $50,343.67 plus interest. Such relief is permissible under CUTPA and was also specifically requested in the plaintiffs’ second count. The defendant claims that the trial court incorrectly concluded that he did not disclose the site’s sewage disposal problem prior to the transfer and improperly awarded the plaintiffs both rescission and money damages. We disagree.

The defendant’s first claim requests that we reconsider the factual findings of the trial court. On appeal, we do not examine the record to determine whether the trier of fact could have reached a conclusion other than it did, but rather determine whether its conclusions were legally correct and factually supported. Acton CATV, Inc. v. Wildwood Partners, Ltd., 19 Conn. App. 235, 237-38, 561 A.2d 976 (1989). The decision of the trial court is not reversed unless it is clearly erroneous in the light of the evidence and the pleadings in the record as a whole. Miller v. Appleby, 183 Conn. 51, 56, 438 A.2d 811 (1981).

The issue of whether the defendant rendered notice of the sewage problem to either of the plaintiffs was factually disputed and controverted. The plaintiffs alleged that the defendant fraudulently did not disclose information upon which they relied to purchase the property. The rule is that a seller may not, under the circumstances, have a duty to speak, although if he does assume to speak, he must make a full and fair disclosure as to the matters upon which he assumes to speak. He must avoid deliberate nondisclosures. Franchey v. Hannes, 152 Conn. 372, 379, 207 A.2d 268 (1965).

The trial court found that the defendant knew the plaintiffs were purchasing the lot to build a residence and gave them a list of suitable contractors to contact for such a purpose. The defendant knew that the lot was not suitable for sewage disposal and deliberately avoided disclosing this information to either of the plaintiffs. The court further found the plaintiff Thomas Catucci credible when he testified that, had the sewage information been disclosed, he would not have purchased the lot. On the basis of these facts and the record as a whole, we conclude that the trial court had ample support to draw the conclusion of fraudulent nondisclosure by the defendant. See Franchey v. Hannes, supra.

The defendant also claims that the trial court improperly awarded to the plaintiffs special damages in the amount of $7626.62. The defendant argues that the trial court awarded the plaintiffs’ damages under count two which only prayed for rescission and punitive damages. The defendant concludes that because the plaintiffs did not specifically request special damages, they should not have been awarded. See Bombero v. Marchionne, 11 Conn. App. 485, 492-93, 528 A.2d 396, cert. denied, 205 Conn. 801, 529 A.2d 719 (1987).

The trial court, however, recognized that the plaintiffs’ complaint was in two counts, a CUTPA claim and a fraudulent breach of contract claim. Furthermore, in articulating the plaintiffs’ damages, the trial court explicitly granted all the plaintiffs’ requested relief from both the first and second counts. The facts upon which the trial court relied supported a verdict in the plaintiffs’ favor on both counts. When a trial court finds the issues for the plaintiffs, as it did here, and the action brought was in two counts, the result is that the trial court has found for the plaintiffs on both counts. Practice Book § 328; Peterson v. Bray, 138 Conn. 227, 231, 83 A.2d 198 (1951).

CUTPA provides for actual and punitive damages and equitable relief. General Statutes § 42-1 lOg (a) uses the phrase “any ascertainable loss” to describe actual damages, and “loss” has a broader meaning than the term “damage.” Hinchliffe v. American Motors Corporation, 184 Conn. 607, 613, 440 A.2d 810 (1981). Thus, special damages are within the purview of the ascertainable losses contemplated under CUTPA. See generally id., 613-20. The award of monetary and punitive damages, as well as equitable relief, was supported by the facts and was within the trial court’s sound discretion to grant. Such complete relief was necessary to ameliorate the results of the defendant’s fraud.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 42-110a et seq.

       General Statutes § 42-110g (a) provides: “Any person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a method, act or practice prohibited by section 42-110b, may bring an action in the judicial district in which the plaintiff or defendant resides or has his principal place of business or is doing business, to recover actual damages. Proof of public interest or public injury shall not be required in any action brought under this section. The court may, in its discretion, award punitive damages and may provide such equitable relief as it deems necessary or proper.”


author: Landau, J.

text:
    Ernest Caron et al. v. Inland Wetlands and Watercourses Commission of the Town of Berlin et al.
    (8837)
    O’Connell, Lavery and Landau, Js.
    Argued December 7, 1990
    decision released June 18, 1991

      Charles W. Bauer, for the appellants (plaintiffs).

      E. Timothy Sullivan, Jr., corporation counsel, for the appellees (named defendant et al.).
   Landau, J.

Pursuant to General Statutes (Rev. to 1987) § 22a-42a (c), as amended by Public Acts 1987, No. 87-533, § 6, the plaintiffs, Ernest and Florine Caron, applied to the defendant Berlin inland wetlands and watercourses commission for a permit to place fill and to construct drainage systems and roadways for a proposed residential subdivision. The application was stamped received on October 20, 1988, and the commission’s next regularly scheduled meeting was November 1,1988. The plaintiffs requested and were granted a continuance. The commission considered the plaintiffs’ application on December 6, 1988, and on January 3,1989, voted to hold a public hearing on the application. The commission scheduled the public hearing for February 7, 1989, and published notice of the hearing on January 24, 1989. The commission denied the plaintiffs’ application on February 14, 1989, and the plaintiffs appealed the commission’s decision to the Superior Court.

On January 11, 1990, the trial court found that the commission had failed to give proper notice of the public hearing. The court remanded the case to the commission for a new hearing after proper notice and did not render judgment on the plaintiffs’ other claims. The plaintiffs agree that notice was improper. They assert, however, that the court’s determination of improper notice is irrelevant because their application is subject to automatic approval. Because we hold that the commission’s failure to act within the requisite time period did not result in automatic approval, we conclude that the trial court properly remanded the case to the commission for a new hearing.

Before addressing the merits of the plaintiffs’ claim, we will first identify the applicable statutes and regulations. After the defendant denied the plaintiffs’ application, and before the trial court rendered its decision, General Statutes (Rev. to 1989) § 22a-42a (c) was amended. Public Acts 1989, No. 89-356, § 16 (hereafter Public Act 89-356), added the following provision to § 22a-42a (c): “The failure of the inland wetlands agency ... to act within any time period specified in this subsection, or any extension thereof, shall not be deemed to constitute approval of the application.”

In accordance with our rules of statutory interpretation, this case is governed by the laws that were in effect when it arose and not as they presently exist. Unless the amendment is procedural in impact, is intended to clarify the original intent of an earlier statute, or specifically contains a provision to the contrary, it is presumed that legislation is intended to operate prospectively. Mulrooney v. Wambolt, 215 Conn. 211, 216, 575 A.2d 996 (1990); Board of Education v. Freedom of Information Commission, 210 Conn. 590, 594-95, 566 A.2d 592 (1989); Darak v. Darak, 210 Conn. 462, 467-68, 556 A.2d 145 (1989). The amendment does not have a procedural impact and neither the legislative history nor the statutory language of Public Acts 1989, No. 89-356, § 16, indicates that the amendment is to be applied retroactively. Because Public Acts 1989, No. 89-356 does not qualify for one of these exceptions, it must be applied prospectively.

In addition, the Inland Wetlands and Watercourses Regulations of the town of Berlin were amended and became effective on August 2,1990, after the plaintiffs filed their application. This amendment to the regulations revises the time periods set forth in § 5.6 of the Inland Wetlands and Watercourses Regulations. General Statutes § 22a-42e provides that applications filed with the inland wetlands agency need not comply with any subsequent changes to the regulations. This case, therefore, is governed by the regulations that were in effect when the plaintiffs filed their application.

We do not agree with the defendant’s assertion that the plaintiffs failed to raise the issue of the commission’s noncompliance with their regulations in their appeal to the Superior Court. The record reveals that the plaintiffs claimed that the commission “did not hold a public hearing within sixty-five days after receipt of [the plaintiffs’] application.” This sixty-five day time period is applicable to both General Statutes § 22a-42a (c) and § 5.6 of the Inland Wetlands and Watercourses Regulations of the town of Berlin. The defendants, therefore, had sufficient notice that the regulations would be at issue. Farrell v. St. Vincent’s Hospital, 203 Conn. 554, 557-58, 525 A.2d 954 (1987); Board of Education v. Commission on Human Rights & Opportunities, 177 Conn. 75, 77-78, 411 A.2d 40 (1979).

The plaintiffs claim that, pursuant to General Statutes (Rev. to 1989) § 22a-42a (c), the date of receipt for their application is November 1, 1988, and that the commission, therefore, failed to act within the statutorily required time period. They further assert that this failure should result in the automatic approval and granting of their application.

In order to determine whether the plaintiffs’ application was automatically approved, we must determine whether, prior to amendment, the time periods set forth in General Statutes (Rev. to 1989) § 22a-42a (c) and § 5.6 of the Inland Wetlands and Watercourses Regulations of the town of Berlin were directory or mandatory. Regulations have the force and effect of statutes and are construed in accordance with accepted rules of statutory construction. Gianetti v. Norwalk Hospital, 211 Conn. 51, 60, 557 A.2d 1249 (1989).

General Statutes (Rev. to 1989) § 22a-42a (c) provided in pertinent part: “No later than sixty-five days after the receipt of such application, the inland wetlands agency may hold a public hearing on such application. . . . Action shall be taken on applications within thirty-five days after the completion of a public hearing or in the absence of a public hearing within sixty-five days from the date of receipt of the application.” When the plaintiffs filed their application, § 5.6 (a) of the Inland Wetlands and Watercourses Regulations provided that “[a]ll public hearings shall commence not sooner than thirty (30) days nor later than (65) sixty-five days after receipt of a complete application.” This sixty-five day time period is similar to and is in conformance with General Statutes § 22a-42a (c).

Although the use of the word “shall” is significant, it does not automatically create a mandatory duty. Hall Manor Owner’s Assn. v. West Haven, 212 Conn. 147, 152, 561 A.2d 1373 (1989); State v. One 1976 Chevrolet Van, 19 Conn. App. 195, 198, 562 A.2d 62 (1989); Ruotolo v. Inland Wetlands Agency, 18 Conn. App. 440, 448, 558 A.2d 1021 (1989); see Fidelity Trust Co. v. BVD Associates, 196 Conn. 270, 278, 492 A.2d 180 (1985); Donohue v. Zoning Board of Appeals, 155 Conn. 550, 554, 235 A.2d 643 (1967). Rather, the test for determining whether a statutory requirement is mandatory or directory is whether the provision “relates to [a] matter of substance or to [a] matter of convenience.” Donohue v. Zoning Board, of Appeals, supra; see also Hall Manor Owner’s Assn. v. West Haven, supra, 152-53; Fidelity Trust Co. v. BVD Associates, supra; Ruotolo v. Inland Wetlands Agency, supra, 447-48. Provisions relating to matters of substance are mandatory, whereas provisions “designed to secure order, system and dispatch in the proceedings [are] generally held to be directory, especially when the requirement is stated in affirmative terms unaccompanied by negative words.” Fidelity Trust Co. v. BVD Associates, supra. Because this provision relates to the orderly dispatch of proceedings and does not contain language expressly invalidating any action taken after noncompliance with the provision, we conclude that these time periods are directory and not mandatory. State v. One 1976 Chevrolet Van, supra, 198-99; Ruotolo v. Inland Wetlands Agency, supra, 448-49; see also Donohue v. Zoning Board of Appeals, supra, 554-55. Therefore, there is no basis for concluding that the plaintiffs’ application was automatically approved.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1987) § 22a-42a (c) as amended by Public Acts 1987, No. 87-533, § 6, provides in pertinent part: “Any person proposing to conduct or cause to be conducted a regulated activity upon an inland wetland and watercourse shall file an application with the inland wetlands agency of the town or towns wherein the wetland in question is located. The application shall be in such form and contain such information as the inland wetlands agency may prescribe. The day of receipt of an application shall be the day of the next regularly scheduled meeting of such inland wetlands agency, immediately following the day of submission to such inland wetlands agency or its agent of such application, provided such meeting is no earlier than three business days after receipt, or thirty-five days after such submission, whichever is sooner. No later than sixty-five days after the receipt of such application, the inland wetlands agency may hold a public hearing on such application. Notice of the hearing shall be published at least twice at intervals of not less than two days, the first not more than fifteen days and not fewer than ten days, and the last not less than two days before the date set for the hearing in a newspaper having a general circulation in each town where the affected wetland and watercourse, or any part thereof, is located. All applications and maps and documents relating thereto shall be open for public inspection. At such hearing any person or persons may appear and be heard. The hearing shall be completed within forty-five days of its commencement. Action shall be taken on applications within thirty-five days after the completion of a public hearing or in the absence of a public hearing within sixty-five days from the date of receipt of such application.”
      This version of § 22a-42a (c) was codified in the 1989 revision of the General Statutes. For the purposes of this opinion, we will refer to that revision as the applicable statute.

       Also named as defendants were Clyde Seiner, chairman of the Berlin inland wetlands and watercourses commission, the town of Berlin, Joanne Ward, Berlin town clerk, and Leslie Carothers, commissioner of the department of environmental protection. The department of environmental protection is not a party to this appeal.

       General Statutes § 22a-42e provides: “An application filed with an inland wetlands agency which is in conformance with the applicable inland wetlands regulations as of the date of the decision of such agency with respect to such application shall not be required thereafter to comply with any change in inland wetlands regulations, including changes to setbacks and buffers, taking effect on or after the date of such decision and any appeal from the decision of such agency with respect to such application shall not be dismissed by the superior court on the grounds that such a change has taken effect on or after the date of such decision. The provisions of this section shall not be construed to apply (1) to the establishment, amendment or change of boundaries of inland wetlands or watercourses or (2) to any change in regulations necessary to make such regulations consistent with the provisions of this chapter as of the date of such decision.”

        This statute effectively overrules the proposition articulated in McCallum v. Inland Wetlands Commission, 196 Conn. 218, 223—24, 492 A.2d 508 (1985), that the inland wetlands regulation in effect when a court decides an appeal is controlling.

       The plaintiffs direct our attention to General Statutes § 8-26 to support their contention that failure to comply with the time periods set forth in General Statutes (Rev. to 1989) § 22a-42a (c) results, by analogy, in automatic approval of their application. Section 8-26 pertains to subdivision applications and provides in pertinent part that “[a]ll plans for subdivisions and resubdivisions . . . shall be submitted to the commission with an application in the form to be prescribed by it. . . . The failure of the commission to act thereon shall be considered as an approval, and a certificate to that effect shall be issued by the commission on demand. ...” Section 8-26 not only pertains to a different, although related, area of the law, but specifically contains invalidating language that is not included in General Statutes (Rev. to 1989) § 22a-42a (c). See also Vartuli v. Sotire, 192 Conn. 353, 363-64, 472 A.2d 336 (1984).


author: Lavery, J.

text:
    Angela Giannitti v. City of Stamford
    (8286)
    Spallone, Foti and Lavery, Js.

      Argued December 12, 1990
    decision released June 18, 1991

      Kenneth B. Povodator, assistant corporation counsel, with whom, on the brief, was Mary E. Sommer, corporation counsel, for the appellant (defendant).

      Stephen A. Finn, for the appellee (plaintiff).
   Lavery, J.

The defendant appeals from the judgment of the trial court awarding the plaintiff $130,000 in damages plus interest and costs after a bifurcated jury trial on liability and damages. The defendant raises numerous claims which may be summarized as follows: first, that the trial court was incorrect in its evidentiary and discovery rulings, the cumulative effect of which denied the defendant the right to prepare a defense as to liability and damages; second, that the trial court incorrectly refused to allow the jury to view the scene of the accident; third, that the court failed to charge the jury properly as to (1) the significance of the fall area, (2) the issue of whether inadequate lighting could constitute a defect under General Statutes § 13a-149, (3) the plaintiff’s duty to mitigate damages for lost earnings and loss of earning capacity, and (4) the defendant’s liability for injuries caused in whole or in part by the defendant rather than those injuries caused solely by the defendant; fourth, that the court was incorrect in concluding, as a matter of law, that the plaintiff’s notice to the defendant was adequate under General Statutes § 13a-149 and therefore that the court should have allowed testimony offered by the defendant that such notice was inadequate and should not have allowed the plaintiff to assert as evidence of the defendant’s negligence its failure to correct the defect after receiving such notice; fifth, that the court was incorrect in awarding interest to the plaintiff based on her offer of judgment. We affirm the judgment of the trial court.

The following facts are pertinent to the resolution of this case. On October 10, 1983, at dusk, the plaintiff, a nurse, was walking on a public sidewalk in the city of Stamford. The plaintiff stepped into a depression in the sidewalk when she moved over to allow some people who were approaching her from the opposite direction to pass. The plaintiff lost her footing and fell, sustaining injuries diagnosed as a fracture in her right foot, a deep venous thrombosis in her right leg and an injured peroneal tendon. The plaintiff attempted to return to full-time work as a nurse several times after her accident, but found herself physically unable to resume full-time responsibilities due to the excessive amount of time that she was required to stand. She was, therefore, forced to accept work as a staff nurse on a per diem, part-time basis.

On or about October 14,1983, the plaintiff sent a letter to the defendant’s city clerk to notify the defendant of her name, address, the fact that she had been injured, and the date and the approximate time and location of the injury. In that letter, the plaintiff also offered to make additional information available on request. Receipt of her letter was acknowledged by a return letter dated October 25,1983, from the defendant’s legal department. On December 22, 1983, the defendant’s city clerk received another written notice prepared by the plaintiff’s then attorney. Pursuant to the provisions of General Statutes § 13a-149, this second notice stated, with specificity, the injuries sustained by the plaintiff, the cause of those injuries and the time and place of the occurrence.

I

The defendant claims that the cumulative effect of a series of rulings by the trial court on evidentiary and discovery matters rendered the defendant unable to prepare an adequate defense as to liability and damages. Taken individually, each of the rulings of which the defendant complains was within the broad discretion of the court and under our limited review does not constitute an abuse of discretion.

“The action of the trial court is not to be disturbed unless it has abused its broad discretion . . . ."Pool v. Bell, 209 Conn. 536, 541, 551 A.2d 1254 (1989). When determining whether the court has abused its discretion, we must make every reasonable presumption in favor of the correctness of the action. Id. The ultimate issue in making such a determination is “whether the court could reasonably conclude as it did.” DiPalma v. Wiesen, 163 Conn. 293, 298-99, 303 A.2d 709 (1972). A review of the transcripts makes it clear that the court could reasonably have concluded that the continued tactical maneuvering and the extended period of time during which discovery could have been, but was not, sought served only to delay the trial unreasonably. The court could also reasonably have concluded that for the sake of judicial economy and in the interests of the parties the best course would be to end discovery and to proceed directly to trial. There is no question that the defendant had ample opportunity to mount an adequate defense both in the trial on liability and in the trial on damages.

The defendant has failed to cite and we are unable to find any authority to support the proposition that a number of correct discretionary rulings when taken together would constitute an abuse of discretion. See State v. Suarez, 23 Conn. App. 705, 707 n.1, 584 A.2d 1194 (1991). If the defendant was prevented from mounting an adequate defense after having more than four years to do so, we do not conclude that it was due to the court’s collective correct discretionary responses to a series of eleventh hour discovery requests.

II

The defendant next challenges the court’s refusal to allow the jury to view the scene of the fall. The trial court may exercise broad discretion in deciding whether a jury should view the scene of an incident from which a controversy arose. Tarquinio v. Diglio, 175 Conn. 97, 100, 394 A.2d 198 (1978); Meizoso v. Bajoros, 12 Conn. App. 516, 519, 531 A.2d 943 (1987). In exercising its discretion, the court should determine whether viewing the scene is necessary for the jury to form a more intelligent understanding of the issues in the case and the proper applications of evidence for the resolution of those issues. Dickson v. Yale University, 141 Conn. 250, 256, 105 A.2d 463 (1954). Although discretionary, the power to authorize a view of the scene should be invoked only after the court is satisfied that the present conditions at the site are the same as those that existed on the date of the underlying incident, and that such a personal inspection is fair to both parties and “reasonably necessary to do justice.” Mackin v. Mackin, 186 Conn. 185, 190, 439 A.2d 1086 (1982).

A careful review of the transcribed dialogue between the court and defense counsel regarding the defendant’s motion to view the premises reveals that, despite arguments to the contrary advanced by defense counsel, the court found that the six intervening years between the date of the incident and the date of trial made it unlikely that the present conditions were the same as those in existence when the plaintiff fell. Further, the court could have reasonably concluded that there were other equally effective, if not more effective, methods available to apprise the jury of conditions existing at the scene at the time of the defendant’s fall and that a trip to the site would accomplish nothing in the way of creating a more “intelligent understanding” of the issues confronting the jury. We conclude that the court did not abuse its discretion in making that determination.

Ill

The defendant’s third claim challenges the court’s instructions to the jury. The defendant framed these issues in its request to charge on liability dated June 12, 1989, in its request to charge on damages dated June 28, 1989, and in exceptions taken immediately following the charge on damages. Thus, pursuant to Practice Book § 315, these claims were preserved for our review.

The test of a jury charge is whether it fairly presents the case to the jury for its deliberations on the facts. Anderson & McPadden, Inc. v. Tunucci, 167 Conn. 584, 590, 356 A.2d 873 (1975). This must be accomplished in a manner that does not subject either party to injustice under established principles of law. Ellice v. INA Life Ins. Co. of New York, 208 Conn. 218, 226, 544 A.2d 623 (1988); West Haven Sound Development Corporation v. West Haven, 207 Conn. 308, 318, 541 A.2d 858 (1988). When delivering its charge to the jury, the court is bound by the overarching consideration that its comments be fair to all parties, dispassionate, proportional and avoid misplaced emphasis or omission. Anderson & McPadden, Inc. v. Tunucci, supra, 589. To meet this difficult and important task the trial court is afforded broad discretion. Bruneau v. Quick, 187 Conn. 617, 628-29, 447 A.2d 742 (1982). The court may choose whether to discuss particular items of testimony or specific facts in its charge. Although this discretion is subject to some appellate oversight, we will not disturb the trial court’s jury charge unless it is demonstrated that the court’s discretion has been abused to the “manifest injury of a litigant.” Geer v. First National Supermarkets, Inc., 5 Conn. App. 175, 178-79, 497 A.2d 999 (1985).

On review, we must determine whether the jury charge taken as a whole fairly presents the case to the jury in a way that prevents injustice to either party under the established rules of law. Preston v. Keith, 217 Conn. 12, 17, 584 A.2d 439 (1991).

The nature and extent of a trial court’s comments to the jury on the evidence must, within constitutional limitations relating to trial by jury, depend on the facts of the case at bar and the way it has been tried. Quednau v. Langrish, 144 Conn. 706, 710, 137 A.2d 544 (1957). The trial judge, not the reviewing court, enjoys the best vantage to sense the atmosphere of the trial and to assess what impact certain remarks will have on the jury. Pisel v. Stamford Hospital, 180 Conn. 314, 322, 430 A.2d 1 (1980); Geer v. First National Supermarkets, Inc., supra.

After reviewing the court’s charges to the jury on liability and damages, we are unpersuaded that they were manifestly unjust to the defendant. The court meticulously fashioned the instructions to highlight the pertinent facts of the case and to give the jury guidance on the applicable law. The charges, when taken as a whole, were complete, balanced and unbiased. They afforded the jury a clear and understandable view of the task before it and provided the tools with which to meet that task. The charges requested by the defendant, which the court properly refused to give, would have served only to place undue emphasis on arguments fully presented by the defendant at trial, and would have intruded on the jury’s exclusive province as fact-finder. The trial court’s refusal to render the charges requested by the defendant was correct and did not constitute an abuse of discretion. Finally, no interrogatories were requested, a general verdict was rendered, and we must presume that every issue was found in favor of the plaintiff. Finley v. Aetna Life & Casualty Co., 202 Conn. 190, 202, 520 A.2d 208 (1987).

IV

The defendant’s fourth claim challenges the trial court’s conclusion as a matter of law that notice of the plaintiff’s injury tendered to the defendant was adequate in light of the saving clause contained in General Statutes § 13a-149.

General Statutes § 13a-149 requires that before a plaintiff may sue a municipality for damages for injuries suffered as a result of that municipality’s failure to maintain its roads properly, that plaintiff must, within ninety days of the occurrence, provide written notice of the occurrence to a selectman or clerk of the municipality. Section 13a-149 also contains a saving clause that provides that notice given under the statute will not be invalidated because of inaccuracies in its content as long as there was no intent to mislead the municipality or the municipality is not in fact misled.

The transcript discloses that during discussion with the trial court on this issue the defendant conceded that the plaintiff did not intend to mislead it. Nevertheless, the defendant argues that before notice can be deemed to be adequate, the jury must also decide that the municipality was not misled.

The defendant is asking us to determine that the word “or” in the statute should be read in the conjunctive as “and” rather than in the disjunctive as “or.” The defendant has supplied us with no precedent that would support this interpretation of the disjunctive “or” in the absence of a showing of clear legislative intent to do so.

In Shapiro v. Hartford, 4 Conn. App. 315, 317-18, 494 A.2d 590, cert. denied, 197 Conn. 810, 499 A.2d 61 (1985), we applied the word “or,” as it is used in the saving clause of § 13a-149, to allow for it to be read in the disjunctive requiring proof of either the intent to mislead or the fact that the city was misled. It is well settled that when interpreting a statute we are limited to the intention expressed in the words used by the legislature. Luttrell v. Luttrell, 184 Conn. 307, 310, 439 A.2d 981 (1981); Lukas v. New Haven, 184 Conn. 205, 212-13, 439 A.2d 949 (1981); Baston v. Ricci, 174 Conn. 522, 528, 391 A.2d 161 (1978). Where the language used by the legislature is clear and unambiguous, we are not at liberty to read into a statute, by construction, a provision that is not clearly stated. Essex Leasing, Inc. v. Zoning Board of Appeals, 206 Conn. 595, 602-603, 539 A.2d 101 (1988); In this case, the statute is clear in its use of the word “or.” When the defendant’s counsel conceded that any flaw in the notice was not made with the intent to mislead, it was he and not the court who removed the issue from the case and allowed the notice to be saved because it met one of the requirements of the saving clause.

V

The defendant’s fifth claim is that it has no liability for the prejudgment interest awarded by the court pursuant to an offer of judgment filed by the plaintiff. The specific facts pertinent to this issue are set forth below. The plaintiff filed her complaint on January 25, 1985. On August 6, 1985, pursuant to General Statutes § 52-192a, the plaintiff filed an offer of judgment in the amount of $57,500. The offer was rejected by the defendant. On June 29,1989, after trial, the jury rendered a verdict in favor of the plaintiff awarding her $130,000 in damages. On July 11,1989, the trial court, Lewis, J., denied the defendant’s motions to set aside the jury’s verdicts on liability and damages.

Because the offer of judgment was filed within eighteen months of the filing of the original complaint, the prejudgment interest of 12 percent on the $130,000 jury award was calculated from the date the plaintiff filed the original complaint to the date of the court’s denial of the defendant’s motion to set aside the jury’s verdict as required by General Statutes § 52-192a. Accordingly, the court awarded the plaintiff $69,766.60 in prejudgment interest. The court also awarded costs to the plaintiff in the amount of $7246.84. The defendant claims that prejudgment interest should not be taxed against it because it is a municipality and is protected from such a judgment by its .governmental immunity. We cannot agree.

The defendant relies on the decision in Struckman v. Burns, 205 Conn. 542, 534 A.2d 888 (1987), as the basis for its argument that a municipality should not be liable for prejudgment interest. In Struckman, our Supreme Court concluded that because the sovereign immunity enjoyed by the state may be abrogated only by clear and unambiguous statutory language, the fact that § 13a-144 was silent as to the taxing of interest on damages awarded on claims against the state precluded the availability of such an award. Struckman v. Burns, supra, 558-59. The defendant contends that, like the state, a municipality is immune from the imposition of prejudgment interest and, in the absence of clear statutory language to the contrary, is exempt from the court’s imposition of prejudgment interest. We disagree.

The governmental immunity afforded a municipality and the sovereign immunity enjoyed by the state are different in historical origin, scope and application. W. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser and Keeton on Torts § 131, p. 1051. Sovereign immunity from tort liability originates from the early feudal concept that the king can do no wrong. Bergner v. State, 144 Conn. 282, 285, 130 A.2d 293 (1957); 57 Am. Jur. 2d, Municipal, Etc., Tort Liability § 2. The recognition that this concept should apply to the states has been woven into the fabric of the United States constitution and our case law. See, e.g., U.S. Const., amend XI; Bergner v. State, supra. Today, it is axiomatic that in the absence of a statute specifically waiving the state’s immunity and granting permission to sue, the state is protected from liability by its sovereign status. Struckman v. Burns, supra, 558; Murphy v. Ives, 151 Conn. 259, 262-63, 196 A.2d 596 (1963).

Municipal immunity is generally described as a court made rule and has its origins in the case of Russell v. Men of Devon, 100 Eng. Rep. 359 (1788). Although municipalities enjoy some limited governmental immunity from liability, they have no sovereign immunity and may therefore sue and be sued as any other natural person, corporation or other entity. Ryszkiewicz v. New Britain, 193 Conn. 589, 593, 479 A.2d 793 (1984); Murphy v. Ives, supra, 264.

Our decision in Fukelman v. Middletown, 4 Conn. App. 30, 492 A.2d 214 (1985), supports this limitation on municipal immunity as it applies to a municipality’s liability for costs in suits brought under § 13a-149. In Fukelman, we held that even though § 13a-149 does not specifically allow for the imposition of costs, a municipality does not enjoy sovereign immunity, and costs may therefore be taxed against it under General Statutes § 52-257.

As early as 1672, prior to the introduction of the concept of municipal immunity, the General Court of Assemblies of the Connecticut Colony enacted a statute requiring Connecticut towns to construct and maintain roads and bridges. That statute imposed liability on towns for injuries to people and property resulting from the failure sufficiently to maintain its thoroughfares.

This early statute is the direct antecedent to General Statutes § 13a-149. It is clear from the language of the original statute and its subsequent versions that it was the intent of the lawmakers to impress the various municipalities with their statutory duty. Toward that end, a provision allowing recovery of double damages was at one time included as compensation for loss of life or limb resulting from the town’s breach of its duty. The Laws of Connecticut Colony 1672, Caleb Stanley copy p. 7, printed by Samuel Green, Cambridge (1673).

It is notable that our modern statute defining the municipal duty to maintain roads has been expanded to allow an injured person to recover damages from any party bound to maintain a road or bridge. See General Statutes § 13a-149. Although municipalities are mentioned separately in the statute, it is for the sole purpose of allowing the municipality adequate notice to assess any potential claims against it. The fact that there is a separate statute abrogating the state’s sovereign immunity supplies us with evidence of the legislative intent to place municipalities in a position different from that enjoyed by the state. Further, because § 13a-149 treats municipalities the same as any other party that is bound to maintain thoroughfares, we conclude that there is no shield of governmental immunity to be extended to municipalities with regard to this function.

The plaintiff brought her revised complaint pursuant to General Statutes § 13a-149, which specifically abrogates any common law governmental immunity afforded municipalities in such actions and does not limit the amount of an award that may be recovered against the municipality. Ryszkiewicz v. New Britain, supra.

Finally, our case law clearly supports the notion that prejudgment interest may be awarded as part of damages assessed against a municipality just as it would be against any private party defendant. Venezia v. Fairfield, 118 Conn. 325, 333, 172 A. 90 (1934); Southern New England Ice Co. v. West Hartford, 114 Conn. 496, 159 A. 470 (1932); Blake v. Waterbury, 105 Conn. 482, 136 A. 95 (1927); Brown v. Southbury, 53 Conn. 212, 1 A. 819 (1885); see also 57 Am. Jur. 2d, supra, § 679. The defendant does not cite and our research has not uncovered any case in which a municipality was held to be immune from the imposition of interest after its liability for damages has been decided by the factfinder. We conclude, therefore, that the assessment of interest against the defendant was proper and correct under the provisions of General Statutes § 52a-192a.

The judgment is affirmed.

In this opinion the other judges concurred.

       Practice Book § 315 provides: “[Requests to Charge and Exceptions]— Necessity for
      “The supreme court shall not be bound to consider error as to the giving of, or the failure to give, an instruction unless the matter is covered by a written request to charge or exception has been taken by the party appealing immediately after the charge is delivered. Counsel taking the exception shall state distinctly the matter objected to and the ground of objection. Upon request, opportunity shall be given to present the exception out of the hearing of the jury.”

       General Statutes § 13a-149 provides: “damages for injuries by means of defective roads and bridges. Any person injured in person or property by means of a defective road or bridge may recover damages from the party bound to keep it in repair. No action for any such injury sustained on or after October 1,1982, shall be brought except within two years from the date of such injury. No action for any such injury shall be maintained against any town, city, corporation or borough, unless written notice of such injury and a general description of the same, and of the cause thereof and of the time and place of its occurrence, shall, within ninety days thereafter be given to a selectman or the clerk of such town, or to the clerk of such city or borough, or to the secretary or treasurer of such corporation. If the injury has been caused by a structure legally placed on such road by a railroad company, it, and not the party bound to keep the road in repair, shall be liable therefor. No notice given under the provisions of this section shall be held invalid or insufficient by reason of an inaccuracy in describing the injury or in stating the time, place or cause of its occurrence, if it appears that there was no intention to mislead or that such town, city, corporation or borough was not in fact misled thereby.”

       General Statutes § 52-192a provides: “OFFER OF JUDGMENT BY PLAINTIFF. ACCEPTANCE BY DEFENDANT. COMPUTATION OF INTEREST, (a) After commencement of any civil action based upon contract or for the recovery of money only, the plaintiff may before trial file with the clerk of the court a written ‘offer of judgment’ signed by him or his attorney, directed to the defendant or his attorney, offering to settle the claim underlying the action and to stipulate to a judgment for a sum certain. The plaintiff shall give notice of the offer of settlement to the defendant’s attorney, or if the defendant is not represented by an attorney, to the defendant himself. Within thirty days after being notified of the filing of the ‘offer of judgment,’ the defendant or his attorney may file with the clerk of the court a written ‘acceptance of offer of judgment’ agreeing to a stipulation for judgment as contained in plaintiff’s ‘offer of judgment.’ Upon such filing, the clerk shall enter judgment immediately on the stipulation. If the ‘offer of judgment’ is not accepted within thirty days, the ‘offer of judgment’ shall be considered rejected and not subject to acceptance unless refiled. Any such ‘offer of judgment’ and any ‘acceptance of offer of judgment’ shall be included by the clerk in the record of the case.
      “(b) After trial the court shall examine the record to determine whether the plaintiff made an ‘offer of judgment’ which the defendant failed to accept. If the court ascertains from the record that the plaintiff has recovered an amount equal to or greater than the sum certain stated in his ‘offer of judgment,’ the court shall add to the amount so recovered twelve per cent annual interest on said amount, computed from the date such offer was filed in actions commenced before October 1, 1981. In those actions commenced on or after October 1,1981, the interest shall be computed from the date the complaint in the civil action was filed with the court if the ‘offer of judgment’ was filed not later than eighteen months from the filing of such complaint. If such offer was filed later than eighteen months from the date of filing of the complaint, the interest shall be computed from the date the ‘offer of judgment’ was filed. The court may award reasonable attorney’s fees in an amount not to exceed three hundred fifty dollars, and shall render judgment accordingly. This section shall not be interpreted to abrogate the contractual rights of any party concerning the recovery of attorney’s fees in accordance with the provisions of any written contract between the parties to the action.”

       General Statutes § 13a-144, unlike § 13a-149, abrogates the sovereign immunity of the state and allows suit for injuries sustained as a result of the state’s failure to maintain highways, bridges and sidewalks.

       General Statutes § 52-257 provides for the allocation of fees and costs in civil actions.

       “This Court considering the great danger that persons Horses and Teams are Exposed unto, by reason of defective Bridges, and County Highwayes in this Jurisdiction; Do Order; That if any person of any time loose his Life through defect or insufficiency of such Bridges, in passing any such Bridge or High-way after due warning given unto any of the Selectmen of the Town in which such defect is, in writing under the hand of two witnesses, or upon presentment to the County Court of such defective Wayes or Bridges, that then the County or Towm which ought to secure such wayes or Bridges, shall pay a fine of one hundred pounds to the Parents, Husband, Wife, or Children, or next of Kin to the party deceased. And if any person loose a Limb, break a Bone, or receive any other Bruise, or breach in any part of his body through such defect aforesaid, the County or Towm through whose neglect such hurt is done shall pay to the party so hurt Double Damage; the like satisfaction shall be made for any Team, Cart or Cartage Horse or other Beast, or loading proportionable to the Damage sustained aforesaid.
      “It is also Ordered; That the several Townships within this Colony shall keep in sufficient repair all the High-wayes and Bridges within their Townships . . . .” The Laws of Connecticut Colony 1672, Caleb Stanley copy p. 7, printed by Samuel Green, Cambridge (1673).


author: Heiman, J.

text:
    Bernard Fisher v. Jean Fisher
    (9223)
    Dupont, C. J., Spallone and Heiman, Js.
    Argued April 24
    decision released June 18, 1991

      L. Paul Sullivan, for the appellant (plaintiff).

      John A. Berman, with whom was Robert B. Fawber, for the appellee (defendant).
   Heiman, J.

The plaintiff appeals from the judgment of the trial court granting the defendant’s motion for modification of an award of periodic alimony that was awarded to her as a part of the judgment of dissolution of marriage, and as modified by the trial court on another occasion.

The facts necessary for a resolution of this matter may be briefly summarized as follows. The marriage between the parties was dissolved by judgment dated October 4, 1984. That judgment was subsequently modified on May 30,1986. The motion for modification that generated this appeal was dated February 6,1989, and it was decided on May 16, 1990.

While the plaintiff raises a number of issues relating to his appeal, our review leads us to conclude that each of his claims implicates the exercise of discretion by the trial court and that the trial court acted within its discretion in concluding as it did. The standard of review in family matters is that this court will not disturb the trial court’s orders unless it has abused its legal discretion or its findings have no basis in fact. McPhee v. McPhee, 186 Conn. 167, 177, 440 A.2d 274 (1982).

In its memorandum of decision, the trial court concluded that a substantial change in circumstances had occurred. The trial court, however, failed to set forth in its decision whether the change in circumstances that it found was contemplated or uncontemplated at the time of the decree dissolving the marriage.

The dissolution of the marriage between the parties was entered on October 4, 1984. At the time of the entry of the decree of dissolution, any party who sought a modification of a prior periodic award of alimony was required to establish an uncontemplated substantial change in the circumstances of either party. Schofield v. Schofield, 12 Conn. App. 521, 523, 532 A.2d 589 (1987); Fabiano v. Fabiano, 10 Conn. App. 466, 469, 523 A.2d 937 (1987). Here, the trial court failed to make a finding that the change in circumstances was one that was not contemplated by the parties at the time of the dissolution. Cf. LaBow v. LaBow, 13 Conn. App. 330, 344, 537 A.2d 157, cert. denied, 207 Conn. 806, 540 A.2d 374 (1988).

Because the amendment; Public Acts 1987, No. 87-104; to General Statutes § 46b-86 (a) has been interpreted to apply only to judgments of dissolution rendered subsequent to the effective date of the statute; Darak v. Darak, 210 Conn. 462, 467-68, 556 A.2d 145 (1989); and the original judgment in this case was rendered many years prior to that date, the moving party was obligated to make a clear showing of an uncontemplated change in circumstances in order to be entitled to the granting of a motion for modification of periodic alimony. Connolly v. Connolly, 191 Conn. 468, 473, 464 A.2d 837 (1983). On the basis of this record, we are unable to determine whether the trial court concluded that the substantial change in circumstances that it found was one not contemplated by the parties at the time of the decree. See Grinold v. Grinold, 172 Conn. 192, 195, 374 A.2d 172 (1976).

The case is remanded to the trial court for a determination of whether the change in circumstances that it found was contemplated by the parties at the time of the decree of dissolution. If it finds that the change in circumstances was one that was contemplated at the time of the decree, then the judgment is set aside. If the trial court determines that the change was uncontemplated by the parties at the time of the decree, the judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1989) § 46b-86 (a) provides: “Unless and to the extent that the decree precludes modification, any final order for the periodic payment of permanent alimony or support or an order for alimony or support pendente lite 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. After the date of judgment, modification may be made upon a showing of such substantial change of circumstances, whether or not such change of circumstances was contemplated at the time of dissolution. By written agreement, stipulation or by decision of the court, those items or circumstances that were contemplated and are not to be changed may be specified in the written agreement, stipulation or decision of the court. This section shall not apply to assignments under section 46b-81 or to any assignment of the estate or a portion thereof of one party to the other party under prior law.”


text:
    Lawrence Iannucci v. Zoning Board of Appeals of the Town of Trumbull
    (9018)
    Dupont, C. J., O’Connell and Landau, Js.
    Argued December 11, 1990
    decision released June 18, 1991

      Arthur A. Hiller, town attorney, for the appellant (defendant).

      Frederick F. Ehrsam, Jr., for the appellee (plaintiff).
   Landau, J.

The defendant denied the plaintiffs application for several variances for the repositioning of a house and the construction of an additional structure. Upon certification by this court, the defendant appeals from the trial court’s decision that the defendant’s denial of the plaintiff’s application was illegal.

The defendant claims that the trial court improperly found (1) that the defendant had abandoned its claim of merger, and that the issuance of a building permit by the building official required certain land to be treated as separate building lots, (2) that the plaintiff’s two contiguous lots had not merged, (3) that the defendant should have considered General Statutes § 8-26a, and (4) that the defendant improperly determined that no hardship existed. We agree with the defendant.

The following facts are pertinent to this appeal. The plaintiff purchased the property from his mother’s estate in 1987. His parents had purchased the property in the early 1950s. The property is comprised of two parcels designated lots one and two as shown on a subdivision map approved by the planning commission and filed on December 19,1938. At the time that the plaintiff submitted his variance application, the house was located on lot two with a portion built over the property line onto lot one. A survey map dated April 12, 1987, shows lots one and two as a single lot with the house extending over both sides of the preexisting boundary line. The plaintiff requested variances from the defendant to relocate the house entirely onto lot two and to build a house on lot one. After a public hearing, the defendant, on November 14,1988, denied the plaintiffs application in part because it concluded that “when a portion of the dwelling on lot two was constructed over the property line, lots one and two were effectively combined.” On December 7,1988, the plaintiff appealed the defendant’s denial to the Superior Court.

After the defendant denied the plaintiff’s variance application and while the appeal was pending before the Superior Court, the plaintiff submitted an application for a building permit, dated February 15, 1989, to the building department of the town of Trumbull. On February 16,1989, the town building official issued a building permit to move the house off of its existing foundation and to construct a new foundation. At the hearing before the trial court, the plaintiff testified that the house had been relocated entirely onto lot two.

I

The trial court concluded that the defendant had abandoned the issue of merger because the town building official issued a building permit and because the defendant did not “readdress the question of merger” by filing a reply to the plaintiff’s supplemental brief. The trial court improperly concluded that the defendant had abandoned its claim of merger.

The plaintiff submitted an application for a building permit to “move existing house off foundation, construct new foundation and renovate complete house.” The town building official, as authorized by the town’s zoning regulations, issued a permit for the requested relocation and renovation. Upon issuance of the permit, the plaintiff relocated the house. Although termed abandonment, the trial court in essence found that the issuance of the building permit estopped the defendant from asserting that the lots had merged.

Estoppel may be invoked in municipal zoning cases “ ‘(1) only with great caution, (2) only when the resulting violation has been unjustifiably induced by an agent having authority in such matters, and (3) only when special circumstances make it highly inequitable or oppressive to enforce the regulations. . . ” (Citation omitted.) West Hartford v. Rechel, 190 Conn. 114, 121, 459 A.2d 1015 (1983). The building inspector is not the zoning board and does not have the authority to determine whether lots have merged. The building official’s issuance of a building permit, therefore, neither estops the defendant from continuing to assert that the lots had merged nor constitutes a variance from the zoning regulations. For this same reason, the trial court improperly concluded that the lots must be treated separately because of the issuance of the building permit.

The defendant’s failure to file a reply brief not ordered by the court also does not constitute abandonment. At trial, the court granted the plaintiff’s request to file a supplemental brief addressing the issue of merger. In turn, the court provided the defendant with the right to file a reply brief. The defendant, however, had fully addressed the issue of merger in its initial brief. The opportunity to file a reply brief is not an order, and no authority was furnished to this court, nor are we aware of any, that persuades us that the failure to file a reply brief not ordered by the court is evidence of abandonment, particularly where the issue to be discussed has already been briefed.

II

The defendant claims that the trial court, in overruling the defendant’s decision, improperly found that lots one and two had not merged. “Courts are not to substitute their judgment for that of the board . . . and decisions of local boards will not be disturbed so long as honest judgment has been reasonably and fairly exercised after a full hearing.” (Citations omitted.) Whittaker v. Zoning Board of Appeals, 179 Conn. 650, 654, 427 A.2d 1346 (1980). When a zoning board of appeals has stated the reasons for its action, a reviewing court may determine only whether the reasons given are supported by the record and are pertinent to the decision. Torsiello v. Zoning Board of Appeals, 3 Conn. App. 47, 50, 484 A.2d 483 (1984). The zoning board’s action must be sustained if even one of the stated reasons is sufficient to support it. Id. Therefore, on the issue of merger, the trial court was “restricted to a determination of whether the board’s finding of merger was reasonably supported by the record and whether this was a pertinent basis on which to deny the plaintiff’s application.” Horn v. Zoning Board of Appeals, 18 Conn. App. 674, 677, 559 A.2d 1174 (1989); see also Marino v. Zoning Board of Appeals, 22 Conn. App. 606, 609, 578 A.2d 165 (1990).

Contiguous land owned by the same person does not necessarily constitute a single lot. Schultz v. Zoning Board of Appeals, 144 Conn. 332, 338, 130 A.2d 789 (1957); Marino v. Zoning Board of Appeals, supra. A merger can occur, however, if the owner of contiguous parcels of land intends to form one tract. The owner’s intent “may be inferred from his conduct with respect to the land and the use which he makes of it.” Molic v. Zoning Board of Appeals, 18 Conn. App. 159, 164, 556 A.2d 1049 (1989). Intent is an inference of fact and “ ‘is not reviewable unless it was one which the trier could not reasonably make.” Blum v. Lisbon Leasing Corporation, 173 Conn. 175, 182, 377 A.2d 280 (1977).

The record here reasonably supports a finding of merger. Initially, we note that both lots were purchased by the plaintiff’s parents. A portion of the dwelling was later constructed over the property line and the position of the house was accurately noted on the survey map dated April 12, 1987. It was reasonable for the defendant to infer that the actions of the plaintiff’s parents effectively merged the lots. Once these lots were merged, they could not thereafter be redivided into two separate lots. Neumann v. Zoning Board of Appeals, 14 Conn. App. 55, 60-61, 539 A.2d 614 (1988).

The plaintiff’s assertion that the lots remain separate because they appear separately on the original subdivision plan is not persuasive. A reference to multiple lots “from a map filed in the land records does not compel a finding of an absence of merger. . . . Such a conclusion conflicts with the basic proposition that in a determination of the factual issue of merger, the intent of the property owners must be ascertained and that no single factor is dispositive.” Marino v. Zoning Board of Appeals, supra, 609-10.

In addition, the trial court found that because the property was recorded as separate lots on an approved and recorded subdivision plan, the defendant should have considered General Statutes § 8-26a. Section 8-26a provides that approved and recorded subdivision plans need not conform to subsequent amendments to subdivision or zoning regulations. This statute applies to subsequent changes promulgated by official bodies. In this case, the change to the lots has occurred due to the actions of the landowners, not an official body. Therefore, although lots one and two would not be required to conform to the current zoning regulations if they had not been merged, the fact that they have merged due to the actions of the landowners does not implicate § 8-26a.

Because we conclude that the defendant had sufficient cause based on merger to deny the plaintiffs variance, we need not address whether the defendant improperly found that no hardship existed. Torsiello v. Zoning Board of Appeals, supra.

The trial court exceeded the scope of its judicial review when it determined that the evidence before the defendant was insufficient. The trial court weighed the evidence and determined the issue of fact involved and, in effect, impermissibly substituted its judgment for that of the zoning board of appeals. See Horn v. Zoning Board of Appeals, supra, 677.

The judgment is set aside and the case is remanded with direction to render judgment dismissing the appeal.

In this opinion the other judges concurred.

       “[General Statutes] Sec. 8-26a. effect of change in subdivision ok zoning regulations after approval of plan, (a) Notwithstanding the provisions of any general or special act or local ordinance, when a change in the subdivision regulations is adopted by the planning commission of any town, city or borough, or other body exercising the powers of such commission, no subdivision plan which has been approved, prior to the effective date of such change, by such planning commission or other body, and filed or recorded with the town clerk, shall be required to conform to such change.
      “(b) 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.” (Emphasis added.)


author: Norcott, J.

text:
    Thomas A. Barton v. Alexander W. Audietis
    (9421)
    Daly, Norcott and Cretella, Js.
    Argued March 25
    decision released June 18, 1991

      Patrick Zailckas, with whom, on the brief, was Howard W. Shelnitz, for the appellant (plaintiff).

      Richard J. Joseph, for the appellee (defendant).
   Norcott, J.

The sole issue in this appeal is whether the trial court should have accorded the plaintiff an accounting of the financial dealings of a partnership known as Central Ag. Industries (Central) pursuant to General Statutes §§ 34-59 and 34-60.

The following facts are relevant to the resolution of this appeal. The plaintiff and the defendant formed a partnership by oral agreement in July, 1983. The partnership did “custom farm work” consisting of planting and chopping corn and spraying and bailing hay for farmers located principally throughout northwestern Connecticut. Both parties agreed to contribute equipment, materials, time and effort to the partnership. The defendant’s initial principal contribution was certain equipment, and the plaintiff’s main contribution was “time and effort.” When the plaintiff quit the partnership in September, 1988, it was dissolved.

In July, 1990, the trial court heard evidence in an action brought by the plaintiff seeking (1) the dissolution of the partnership, (2) the appointment of a receiver to take possession of the partnership assets, (3) an accounting of the financial dealings of the partnership, and (4) the payment of his share of any heretofore unpaid profits. The court agreed that the partnership had been dissolved. Although the plaintiff claimed that the parties had agreed to share the partnership’s profits equally, the trial court found that the terms of the partnership agreement were extremely vague. It further found that there was a gross inequity between the value of the assets that were brought to the partnership by each of the parties, as the plaintiff had furnished the partnership with only a pickup truck, and the defendant had provided “substantial tangible personal property of significant value.” The court also noted that the parties had each retained title to their respective assets. From these findings, the trial court concluded that “the plaintiff had not borne his burden of proving the terms of their agreement” and denied the plaintiff the accounting and the other requested relief.

The defendant argues, and the trial court seems to agree, that, absent proof of the terms of the partnership, an accounting is not warranted. We find no support for such a proposition of law, and none is cited by either the defendant or the trial court.

The trial court’s concern with the terms of the partnership was misplaced. Here, there was no question as to the existence of a partnership. When the essence of the dispute between partners concerns what occurred with respect to the partnership’s financial affairs, the court must follow the statutory requirements to determine whether the moving party should be awarded an accounting.

By focusing its consideration on the partnership agreement, the trial court failed to examine fully the criteria of General Statutes §§ 34-59 and 34-60. Although it is true that a partner is entitled to an accounting under General Statutes § 34-60 if that right exists under an agreement, that statute also mandates an accounting when a partner is wrongfully excluded from the partnership business or possession of its property, when a partner derives profits from the partnership without the consent of the other partners and when other circumstances render it just and reasonable. See also General Statutes § 34-59 (1); Weidlich v. Weidlich, 147 Conn. 160, 163, 157 A.2d 910 (1960) (“Upon the termination of a partnership either by act of the parties or operation of law, an accounting usually becomes necessary”).

The judgment is reversed and the case is remanded for a determination of whether the plaintiff is entitled to an accounting of the partnership’s financial affairs under the factors set out in General Statutes §§ 34-59 and 34-60.

In this opinion the other judges concurred.

       General Statutes § 34-59 provides in pertinent part: “accounting by partner. (1) Every partner must account to the partnership for any benefit, and hold as trustee for it any profits derived by him without the consent of the other partners from any transaction connected with the formation, conduct, or liquidation of the partnership or from any use by him of its property.”

       General Statutes § 34-60 provides: “right of partner to accounting. Any partner shall have the right to a formal account as to partnership affairs: (a) If he is wrongfully excluded from the partnership business or possession of its property by his copartners, (b) if the right exists under the terms of any agreement, (c) as provided by section 34-59, (d) whenever other circumstances render it just and reasonable.”

       Specifically, the trial court’s memorandum of decision states: “I am forced to conclude that the plaintiff has not borne his burden of proving the terms of their agreement so that it would be possible for me to enter any meaningful decree to guide a receiver or to formulate an order as to division of property.”


text:
    Margaret Johnston et al. v. American Employers Insurance Company et al.
    (9651)
    Spallone, Norcott and Lavery, Js.
    Argued May 3
    decision released June 18, 1991

      Richard A. Roberts, with whom was Frederick L. Murolo, for the appellant (named defendant).

      Mark J. DeAngelis filed a brief for the appellees (plaintiffs).
   Lavery, J.

Pursuant to Practice Book §§ 4147 and 4148, the parties have stipulated that the sole question on this reservation is whether the American Employers Insurance policy number AJ-ZM86638U was in effect on November 16, 1986, thereby allowing the plaintiffs to claim underinsured motorist benefits with respect to injuries and losses suffered as a result of an accident occurring on that date. The answer to this question is no.

The parties have stipulated to the following facts. Shawn Johnston was the named insured on an automobile liability insurance policy number AJ-ZM86638U issued by American Employers Insurance Company. The policy was to be in effect from August 25, 1986, to February 25, 1987, unless cancelled prior to expiration. The policy covered two automobiles, one owned by Shawn Johnston, the other by his wife Margaret, and provided uninsured motorist coverage up to a single limit of $300,000.

As of October 9,1986, the Johnstons were delinquent in premium payments and the American Employers Insurance Company had sufficient grounds to seek a cancellation of the insurance policy for nonpayment of premium. On that date, the American Employers Insurance Company mailed a cancellation notice by regular mail to Shawn Johnston. The cancellation notice was mailed to 68 Laconia Court, Putnam, the address that appeared on the policy. On October 9,1986, the Johnstons no longer lived at that address and, although the Johnstons had left a mail forwarding order at a post office, they had not notified American Employers of their change of address prior to that date.

The Johnstons claim that they did not receive the cancellation notice. American Employers did not send the notice of cancellation by certified mail, return receipt requested. American Employers has no evidence that the Johnstons actually received the notice, but does have a certificate of mailing as proof that the notice was sent.

Sometime on or before November 4,1986, the Johnstons received a letter from their insurance agent, dated October 30,1986, advising them of the purported cancellation. On that date, acting with the belief that the American Employers Insurance Company policy had been cancelled, the Johnstons consulted with their insurance agent regarding the purchase of a new automobile policy to cover the same two automobiles that were covered by the American Employers policy. The agent issued a binder of coverage with the Patron’s Mutual Insurance Company that day. The binder on this policy indicates that its uninsured motorist coverage was subject to a single limit of $40,000. The limit of this coverage, however, is at issue and the claimants and Patron’s Mutual Insurance Company agree that this issue is subject to arbitration.

On November 16, 1986, Shawn and Margaret Johnston were lawful husband and wife residing in the same household at 110 Prospect Street, Putnam. On that date, the Johnstons suffered the injuries and losses for which they claim underinsured motorist coverage.

The purpose of General Statutes § 38a-343 (formerly § 38-175h) is to assure that before an automobile insuranee policy is cancelled the insured has a clear and unambiguous notice of the cancellation. See Travelers Ins. Co. v. Hendrickson, 1 Conn. App. 409, 413, 472 A.2d 356 (1984). In this case, the notice given to the Johnstons was actual notice by their own insurance agent on or before November 4, 1986.

A review of the stipulation of facts reveals that the Johnstons received actual notice of the cancellation of the American Employers insurance policy from their own insurance agent on or before November 4, 1986. On November 4,1986, twelve days before the accident, the Johnstons, acting and relying on the knowledge that the policy with American Employers was cancelled, secured another auto insurance policy. There can be no clearer indication that the Johnstons knew that their policy had been cancelled and that they must take steps to procure new insurance coverage. The plaintiffs policy with the defendant was not in effect on November 16, 1988. It is therefore unnecessary to decide whether § 38a-343 requires that notice of cancellation be mailed ten days before cancellation or be received ten days before cancellation.

We answer the question on reservation, no.

No costs will be taxed to either party.

In this opinion the other judges concurred.

       General Statutes § 38a-343 (formerly § 38-175h) provides: “RECEIPT OF cancellation notice, reason for cancellation, (a) No notice of cancellation of policy to which section 38a-342 applies may be effective unless sent, by registered or certified mail or by mail evidence by a certifícate of mailing, or delivered by the insurer to the named insured at least forty-five days before the effective date of cancellation, provided where cancellation is for nonpayment of premium at least ten days’ notice of cancellation accompanied by the reason therefor shall be given. No notice of cancellation of a policy which has been in effect for less than sixty days may be effective unless mailed or delivered by the insurer at least forty-five days before the effective date of cancellation, provided that at least ten days’ notice shall be given where cancellation is for nonpayment of premium or material misrepresentation. The notice of cancellation shall state or be accompanied by a statement specifying the reason for such cancellation.
      “(b) This section shall not apply to nonrenewal.”


author: Spallone, J.

text:
    State of Connecticut v. Juan Castano
    (9723)
    Dupont, C. J., Spallone and Heiman, Js.
    Argued April 24
    decision released June 18, 1991

      Joseph Dimyan, for the appellant (defendant).

      Timothy J. Sugrue, assistant state’s attorney, with whom, on the brief, were Walter D. Flanagan, state’s attorney, and Devin T. Stilson, assistant state’s attorney, for the appellee (state).
   Spallone, J.

The defendant appeals from the judgment of conviction, rendered after his conditional plea of nolo contendere, to the crime of illegal possession of narcotics with intent to sell in violation of General Statutes § 21a-277 (a). He claims that the trial court improperly denied his motion to suppress certain evidence seized pursuant to a warrant authorizing a search of his home. We affirm the judgment of the trial court.

The following facts are relevant to the disposition of this appeal. On August 16, 1989, officers of the Dan-bury police department applied for a warrant to search the defendant’s residence at 5 Mill Ridge Road in Dan-bury for evidence of drug trafficking. Upon a finding of probable cause, the Superior Court issued a warrant to search the premises. The police executed the warrant on August 18, 1989, and seized two scales, four plastic bags containing 10.44 grams of cocaine, $3120 in cash and certain gold jewelry. On September 18, 1989, the defendant moved to suppress the evidence seized from his residence. In his motion to suppress, the defendant asserted that the affidavit filed by the police in support of their application for a search warrant failed to establish probable cause to search his residence. The trial court heard oral argument and reviewed the affidavit before denying the defendant’s motion to suppress.

On October 26, 1990, the defendant entered a conditional plea of nolo contendere to the state’s substituted information containing a single count of possession of narcotics with intent to sell. The defendant reserved his right to appeal the denial of his motion to suppress as authorized by General Statutes § 54-94a. In accordance with a plea agreement, the defendant was sentenced to four years imprisonment, execution suspended, with four years of probation. The defendant is a Colombian national and faces deportation.

A warrant may be issued to search any property “at which there is probable cause to believe that fruits, instrumentalities, or evidence of a crime will be found.” Zurcher v. Stamford Daily, 436 U.S. 547, 554, 98 S. Ct. 1970, 56 L. Ed. 2d 525 (1978). “ ‘Probable cause to search exists if: (1) there is probable cause to believe that the particular items sought to be seized are connected with criminal activity or will assist in a particular apprehension or conviction . . . and (2) there is probable cause to believe that the items sought to be seized will be found in the place to be searched.’ (Emphasis in original; citations omitted.)” State v. Weinberg, 215 Conn. 231, 238, 575 A.2d 1003 (1990), cert. denied, U.S. , 111 S. Ct. 430, 112 L. Ed. 2d 413 (1991), quoting State v. DeChamplain, 179 Conn. 522, 528-29, 427 A.2d 1338 (1980). “Whether there is probable cause is to be determined upon facts stated in the affidavit purporting to establish grounds for issuing the warrant. United States v. Harris, 403 U.S. 573, 579, 91 S. Ct. 2075, 29 L. Ed. 2d 723 (1971); State v. DeChamplain, [supra, 530]. In considering the sufficiency of the affidavit we confine ourselves to the facts which appear on the face of the affidavit or which properly may be inferred therefrom; State v. Williams, 170 Conn. 618, 629, 368 A.2d 140, cert. denied, 429 U.S. 865, 97 S. Ct. 174, 50 L. Ed. 2d 145 (1976); testing those facts with common sense and reality; United States v. Ventresca, 380 U.S. 102, 108, 85 S. Ct. 741, 13 L. Ed. 2d 684 (1965); and with great deference to the fact that the issuing magistrate did determine that probable cause existed. Jones v. United States, 362 U.S. 257, 270-71, 80 S. Ct. 725, 4 L. Ed. 2d 697 (1960).” State v. Couture, 194 Conn. 530, 536, 482 A.2d 300 (1984), cert. denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985). In reviewing the sufficiency of an affidavit supporting the application for a search warrant we do not conduct a de novo review, but determine whether the court had a substantial basis for concluding that a search would uncover evidence of a crime. Id.

The affidavit in this case is comprised of thirty paragraphs incorporated into six and one-half pages. Set forth in the application is a description of widespread narcotics dealing involving the defendant, certain of his companions, his wife, his place of employment, his home and his motor vehicle. The representations contained in the affidavit were gleaned from the personal observations of reliable informants, the personal observations of the police, and a pen register indicating drug related calls to the defendant’s home.

Two confidential informants supplied information contained in the affidavit and application for a search warrant. The first informant was known to the officers for over three years and had in that time provided information resulting in seizures of cocaine and cash as well as arrests and convictions.'This informant indicated personal knowledge of a large scale cocaine trafficking network operating in the Danbury area headed by Juan Castaño, a Colombian male approximately fifty years old. This informant also stated that Castaño distributed cocaine to various buyers with the aid of several associates including Nimia Sanchez, Castano’s common law wife and coresident at 5 Mill Ridge Drive in Danbury. This informant also stated that he had personal knowledge that large amounts of cash were often stored at Castano’s residence at 5 Mill Ridge Drive and that Castaño had accumulated vast amounts of cash and purchased properties with the proceeds of the drug trafficking operation that he headed for a number of years.

On June 8,1989, this informant stated that the drug operation headed by Castaño was still going strong, that he had observed Sanchez making cocaine deliveries in an automobile owned by Castaño, and gave the officers the automobile registration number. An independent check by the officers confirmed that the vehicle was registered to a Juan Castaño at 5 Mill Ridge Drive. This informant also indicated personal knowledge that Castaño had recently returned from a short trip to Colombia for the purpose of transporting funds from the United States to Colombia. On August 7, 1989, this informant overheard a conversation of Sanchez in which she stated that the defendant stored quantities of cocaine in the cellar of a Danbury restaurant.

On May 30, 1989, a second confidential informant, not previously known to the police, indicated personal knowledge of a cocaine selling operation being run by an Hispanic male named Juan out of the kitchen of the restaurant previously mentioned and that cocaine was stored in the restaurant’s basement. On July 25,1989, this second informant personally observed a person named Juan, who was approximately fifty years old, sell cocaine to various persons at the restaurant.

The officers themselves independently verified a wealth of additional information supplied by the informants and contained in the affidavit by conducting “buy” operations and surveillance over a period of months. Further, a court authorized pen register recorded calls from a suspected drug kingpin to the home of Castaño. We conclude that the affidavit contains sufficient evidentiary allegations to permit the issuing judge to make a finding of probable cause under either the two-prong analysis of State v. Kimbro, 197 Conn. 219, 233, 496 A.2d 498 (1985), or the less strict “totality of the circumstances” analysis set forth in Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983).

The defendant also asserts that the recitation of facts in the application and affidavit in support of a search warrant, although sufficient to support a search of the defendant’s place of employment and even of the defendant himself, was insufficient to connect his home to the illegal activity alleged. Actual observations of illegal activity or contraband in the premises to be searched, however, are not required to establish probable cause. State v. Vallas, 16 Conn. App. 245, 261-62, 547 A.2d 903 (1988), aff’d sub nom. State v. Colash, 212 Conn. 485, 563 A.2d 660 (1989). The nexus between the premises and the evidence “ ‘can be inferred from the type of crime, the nature of the items sought, the extent of an opportunity for concealment and normal inferences as to where a criminal would hide [the evidence].’ ” State v. Couture, supra, 537, quoting, United States v. Charest, 602 F.2d 1015, 1017 (1st Cir. 1979). “In the case of drug dealers, evidence is likely to be found where the dealers live.” United States v. AnguloLopez, 791 F.2d 1394, 1399 (9th Cir. 1986); see State v. Vallas, supra, 262; United States v. Reyes, 798 F.2d 380, 382 (10th Cir. 1986); United States v.Peacock, 761 F.2d 1313, 1315-16 (9th Cir.), cert. denied, 474 U.S. 847, 106 S. Ct. 139, 88 L. Ed. 2d 114 (1985).

We find that the court had a substantial basis from the facts included within the four corners of the application for the search warrant to conclude that there was probable cause that the defendant’s residence contained evidence of criminal activity and that the trial court properly denied the defendant’s motion to suppress.

The judgment is affirmed.

In this opinion the other judges concurred.