text:
    State of Connecticut v. Manuel Arbelo
    (12864)
    O’Connell, Heiman and Hennessy, Js.

      Argued November 2, 1994
    decision released March 7, 1995

      LindaS. Denholtz, deputy assistant public defender, for the appellant (defendant).

      Leah Hawley, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Joseph Harry, assistant state’s attorney, for the appellee (state).
   O’Connell, J.

The defendant appeals from the judgment of conviction, after a jury trial, of sale of a controlled substance in violation of General Statutes § 21a-277 (b) and conspiracy to sell a controlled substance in violation of General Statutes §§ 53a-48 (a)* and 21a-277 (b). The defendant claims that there was insufficient evidence to support either conviction. We reverse the judgment of the trial court.

The jury could reasonably have found the following facts. On March 1,1993, Bridgeport detective Thomas Russell was assigned to surveillance of possible drug sale activity at the corner of Maple and Caroline Streets, a known marijuana trafficking area. He was in an unmarked police car, 300 to 400 feet from the target area, watching the area through binoculars. Russell was working with a backup team that was parked where it could not see the target area.

Russell saw the defendant, who was standing on the corner, toss something at a second floor window of a nearby house. Carmelo Rodriguez came to the window and talked to the defendant, and then came down to join him on the street.

Through his binoculars, Russell saw a man, later identified as Edwin Ocasio, walking along Caroline Street. Rodriguez beckoned to Ocasio, and he came over to where the defendant and Rodriguez were standing. The defendant stepped into an alley, came back out, and exchanged something with Ocasio. Russell could not identify what was exchanged.

As Ocasio walked away, Russell relayed Ocasio’s description and the direction he had taken to the backup team. Russell watched until Ocasio turned the comer onto Brooks Street, where he was arrested by two police officers. Russell did not see Ocasio put anything into his pockets.

Upon being stopped, Ocasio said, “Okay, you got me, it’s in my vest pocket.” From Ocasio’s vest pocket, one officer retrieved a small plastic bag containing what was later determined to be marijuana. At the time, Ocasio was wearing two jackets over the vest.

Russell then directed the backup officers to move in and arrest the defendant and Rodriguez. The officers drove to where Russell directed them and confronted the men, who offered no resistance. A search incident to the arrest of the defendant yielded $259 in cash in his pockets. No drugs were found on the person of either the defendant or Rodriguez, nor did a thorough search of the alley produce any drugs.

When called upon to review a challenge to the sufficiency of the evidence, we are required to apply a two-pronged analysis. We must first review the evidence presented at trial, construing it in a light most favorable to sustaining the jury’s verdict. We then determine whether, from the facts established and the inferences reasonably drawn therefrom, the jury reasonably could have concluded that the cumulative effect of the evidence established guilt beyond a reasonable doubt. State v. Turner, 24 Conn. App. 264, 267, 587 A.2d 1050, cert. denied, 218 Conn. 910, 591 A.2d 812 (1991).

The first count charges the defendant with sale of a controlled substance, specifically marijuana. In common parlance, a “sale” is the exchange of an object for value. The statutory definition of “sale” as applied to illegal drug transactions, however, is much broader and includes “any form of delivery [of an illegal drug] which includes barter, exchange or gift . . . .” General Statutes § 21a-240 (50).

In the present case, the state was required to prove beyond a reasonable doubt that the defendant sold, as that term is used in the statute, marijuana to Ocasio. State v. Mierez, 24 Conn. App. 543, 551, 590 A.2d 469, cert. denied, 219 Conn. 910, 911, 593 A.2d 136 (1991). A jury first draws inferences and makes findings of fact. In doing so, it may draw inferences from the facts it found proved, and it is not required to draw only inferences that are consistent with innocence. State v. Tatum, 194 Conn. 594, 598, 483 A.2d 1087 (1984). In drawing these inferences and finding these facts, however, it may not resort to speculation and conjecture. State v. Mierez, supra, 554.

Once the jury has finished drawing inferences and making findings of fact, it must then determine its ultimate conclusion: whether those facts and inferences prove the defendant guilty beyond a reasonable doubt. “Proof beyond a reasonable doubt requires that the evidence exclude every reasonable hypothesis of innocence.” State v. Ford, 230 Conn. 686, 693, 646 A.2d 147 (1994).

The weakness in the state’s case here is that no state’s witness saw money pass from Ocasio to the defendant, nor did any state’s witness see any drugs pass from the defendant to Ocasio. Additionally, there is a paucity of circumstantial evidence supporting the state’s theory that the brief contact between the defendant and Ocasio resulted in a drug sale. The source of Ocasio’s marijuana was never established. Ocasio’s words, “Okay, you got me, it’s in my vest pocket,” do not fairly imply a connection with the defendant as the source of his marijuana. The evidence here does not reasonably exclude the hypothesis that the tiny package could have been there prior to Ocasio’s brief contact with the defendant. This is particularly true in view of Russell’s testimony that the entire area was known for drug trafficking, specifically marijuana trafficking.

The state’s case was further weakened when the search of the alley behind the defendant did not yield any marijuana, nor did the defendant flee when the police officers pulled up and confronted him.

The state properly points out that there is a distinction between proof beyond a reasonable doubt and proof beyond all possible doubt, but it inappropriately relies on State v. Hall, 165 Conn. 599, 602-603, 345 A.2d 17 (1973). In Hall, the defendant handed the narcotics directly to an undercover police officer leaving no room for doubt concerning delivery of an illegal drug.

State v. Mierez, supra, 24 Conn. App. 553, is much closer to the facts of the present case. In Mierez, we reversed a narcotics conviction where the police officers conducting the surveillance were unable to describe the objects that passed between the seller and the buyer. In the case before us, it is significant that although Russell had Ocasio almost continuously in view through his binoculars, he did not see Ocasio put his “buy” under his two jackets and into his vest pocket.

Without Ocasio identifying the source of his marijuana or other direct or circumstantial evidence of a sale, the factual existence of a drug transaction between Ocasio and the defendant rests on speculation and conjecture. At best, the state’s case raises a suspicion of drug activity between the defendant and Ocasio. This is far from satisfying the state’s burden of proving its case beyond a reasonable doubt. The evidence does not exclude every reasonable hypothesis of innocence. State v. Ford, supra, 230 Conn. 693.

The state agrees that if the evidence does not support the first count, it likewise will not support a conviction of conspiracy to sell a controlled substance as charged in the second count.

The judgment is reversed and the case is remanded with direction to render judgment of not guilty as to both counts.

In this opinion the other judges concurred.

       General Statutes § 21a-277 (b) provides: “Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with intent to sell or dispense, possesses with intent to sell or dispense, offers, gives or administers to another person any controlled substance, except a narcotic substance, or a hallucinogenic substance other than marijuana, except as authorized in this chapter, may, for the first offense, be fined not more than .twenty-five thousand dollars or be imprisoned not more than seven years or be both fined and imprisoned; and, for each subsequent offense, may be fined not more than one hundred thousand dollars or be imprisoned not more than fifteen years, or be both fined and imprisoned.”

       General Statutes § 53a-48 (a) provides: “A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.”

       The trial court granted the defendant’s motion for judgment of acquittal on another count charging him with possession of a controlled substance with intent to sell.

       General Statutes § 21a-240 (50) provides: “ ‘Sale’ is any form of delivery which includes barter, exchange or gift, or offer therefor, and each such transaction made by any person whether as principal, proprietor, agent, servant or employee.”

       Ocasio did not testify.


source: Caselaw Access Project

author: Schaller, J.

license: Public Domain

text:
    Raymond Flint v. National Railroad Passenger Corporation
    (12907)
    Landau, Heiman and Schaller, Js.
    Argued January 5
    decision released March 7, 1995

      Cynthia C. Bott, with whom, on the brief, was William F. Gallagher, for the appellant (plaintiff).

      David Thomas Ryan, with whom, on the brief, was Craig A. Raabe, for the appellee (defendant).
   Schaller, J.

The plaintiff appeals from the judgment of the trial court in favor of the defendant relieving it of liability for the plaintiffs injuries sustained during his operation of a jack in the course of his employment. The plaintiff claims that the trial court improperly sustained the defendant’s objection to the plaintiff’s request for a jury trial. We affirm the judgment of the trial court.

The facts relating to this claim are as follows. The case began in 1986 when the plaintiff, Raymond Flint, initiated an action pursuant to the Federal Employers’ Liability Act; 45 U.S.C. § 51 et seq.; alleging that he was injured in 1984 while operating a jack at the direction of his employer, the defendant, National Railroad Passenger Corporation. He claimed that the injury resulted from the defendant’s negligence. At the time the pleadings were closed, neither party requested a jury trial. The case was referred to Hon. Joseph W. Bog danski, state trial referee, in 1988. A mistrial was declared with respect to the trial before Judge Bogdanski.

Subsequent to the mistrial, the plaintiff filed a request to amend his complaint together with a request for a jury trial. The defendant objected to both requests. At a hearing on the matter, the trial court, Fracasse, J., overruled the defendant’s objection to the plaintiff’s request to amend his complaint, but sustained the defendant’s objection with regard to the plaintiff’s request for a jury trial. The plaintiff amended his complaint, and the case who referred to Hon. John C. Flanagan, state trial referee.

At the second trial, the plaintiff claimed that his injuries were caused by the defendant’s unsafe procedures for operating a jack. The trial court determined, however, that the plaintiff had not sustained his burden of proof with respect to the issue of liability of the defendant and, accordingly, rendered judgment in favor of the defendant. The plaintiff appealed to this court claiming that the trial court had improperly refused to grant his earlier request for a jury trial.

The dispositive issue is whether the plaintiff’s request for a jury trial was timely by virtue of having enlarged the existing issues or having raised new issues of fact in his amended complaint. The plaintiff relies on General Statutes § 52-215 which provides in pertinent part that “[wjhen . . . an issue of fact is joined, the case may, within ten days after such issue of fact is joined, be entered in the docket as a jury case upon the request of either party . . . .” The plaintiff claims that he should have been allowed to claim a jury trial when he sought to do so because his amended complaint enlarged already existing issues and added new issues of fact, in particular, new allegations of negligence and new specifications of injuries. When an amended complaint raises a new issue of fact, a new ten day period arises within which to claim the matter to the jury. Leahey v. Heasley, 127 Conn. 332, 335, 16 A.2d 609 (1940).

In examining the specific pleadings in this case, we note that the plaintiff originally filed a ten paragraph complaint. Paragraph seven alleged that the injuries of the plaintiff were due to the negligence of the defendant, and paragraph eight set forth the injuries that the plaintiff allegedly sustained as a result of the accident. The defendant answered the plaintiffs complaint and pleaded by way of special defense that the injuries sustained by the plaintiff were caused in whole or in part by the plaintiffs own negligence. In paragraph seven of the amended complaint, the plaintiff added a new allegation of negligence. His new allegation of negligence was that the operation of the jacks “in unison” was particularly dangerous, and that his injury resulted from this dangerous procedure. In paragraph eight, the plaintiff attempted to enlarge the allegations of his injuries.

The plaintiff argues that because the original complaint did not contain the “in unison” theory of negligence alleged in the amended complaint, and because the original complaint did not contain the new allegations of injuries, he was entitled to claim a jury trial. The trial court, in its memorandum of decision sustaining the defendant’s objection to the plaintiff’s request for a jury trial, noted that “[t]he amendment adds no new issue of fact but only restates the factual claims already alleged. Masto v. Board of Education, 200 Conn. 482, 488, 511 A.2d 344 (1986); Atta v. Cutner, 95 Conn. 576, 577, 111 A. 847 (1920). Jury claim is stricken.”

We conclude that the trial court was correct in determining that the amended complaint did not enlarge the issues involved or raise any new issues so as to create any right in the plaintiff to claim a jury trial at that stage of the proceedings. Kuser v. Orkis, 169 Conn. 66, 75, 362 A.2d 943 (1975). The allegations of the original complaint were broad enough to have permitted the plaintiff to offer proof of the “in unison” theory. In fact, at the first trial proof was offered on the issue by the plaintiff’s expert witness who testified to the difficulty of operating all three jacks together, a process that he believed would require split second timing. Furthermore, the amendments to the complaint concerning the plaintiff’s injuries did not enlarge any existing issues or add any new issues to the case, but merely restated, albeit with more specificity, the plaintiff’s original claims of injury.

We conclude that the trial court was correct in determining that the amended complaint merely restated in different language facts that previously had been alleged.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant claims that the plaintiff failed to file a postjudgment motion pursuant to Practice Book § 320, and, thus, this court should review the plaintiff’s claim only under the plain error doctrine. Because we conclude, after plenary review, that the amended complaint did not enlarge the issues involved or raise a new issue of fact, the defendant cannot argue that a decision under the rigorous plain error standard would have been different from that reached under the ordinary civil standard of review. See Rowan Construction Corp. v. Hassane, 213 Conn. 337, 342, 567 A.2d 1210 (1990). We, therefore, need not reach the § 320 issue.


author: Hennessy, J.

text:
    Richard Woodburn v. Conservation Commission of the Town of Redding et al.
    (12848)
    Foti, Schaller and Hennessy, Js.

      Argued December 8, 1994
    decision released March 7, 1995

      Nancy Burton, for the appellant (plaintiff).

      Edwin C. Pearson, for the appellee (named defendant).
   Hennessy, J.

The plaintiff, Richard Woodburn, an environmental intervenor, appeals from the judgment of the trial court upholding a decision of the defendant Redding conservation commission (commission) approving an application submitted by the defendants Gerald Casiello and Margaret Casiello for a permit to construct a small pond on their property. The plaintiff claims that the trial court improperly found that (1) the commission’s decision was supported by substantial evidence, (2) the commission had complied with the feasible and prudent alternative requirement of General Statutes § 22a-41 (b), (3) there was no conflict of interest on the part of Commissioner Robert Campbell, (4) the commission’s legal notice of the hearing satisfied the statutory requirements, and (5) the information submitted by the applicants complied with the commission’s regulations. We affirm the judgment of the trial court.

The trial court found the following facts. Gerald Casiello and Margaret Casiello applied to the commission for a permit to construct a pond on their property located at 152 Gallows Hill Road. The location of the proposed pond was in wetlands and the application further sought that the fill from the excavation of the pond be spread over almost 1000 square yards of wetlands adjacent to the proposed pond. The spreading of the fill was planned to cover a growth of phragmites, an invasive wetlands grass. The commission held an initial meeting on this application on April 7, 1992, and a site inspection was planned. On April 22, 1992, at a second meeting considering the application, it was decided that the application proposed a significant activity and that a public hearing should be held. Notice of the public hearing was published in the Redding Pilot, a local newspaper, on May 21 and 28, 1992.

The public hearing in connection with the application commenced on June 2,1992, was continued four times and concluded on August 4,1992. During the hearing, the applicants testified and submitted reports by experts, experts retained by the commission submitted reports, interested persons were allowed to comment, and the commission conducted two site inspections. On August 18, 1992, the commission met to discuss the application, and on September 1,1992, the commission voted on the application. The Casiellos’ application was approved by the vote of three commissioners, with two commissioners voting in opposition.

Notice of the approval of the Casiellos’ application was published in the Redding Pilot on September 10, 1992. The plaintiff filed an appeal from this approval on September 30, 1992, in the Superior Court for the judicial district of Danbury. On November 16,1992, the plaintiff applied for an ex parte temporary restraining order and a temporary injunction, seeking to delay the construction of the Casiellos’ pond and the distribution of the fill. The temporary restraining order was denied, and, following a hearing, the application for a temporary injunction was also denied.

On April 29, 1993, the trial court held a hearing on the plaintiff’s appeal. On August 31, 1993, the trial court issued a memorandum of decision dismissing the plaintiff’s appeal. It is from this judgment that the plaintiff appeals.

I

The plaintiff first claims that the trial court improperly found that the commission’s decision approving the applicants’ proposal was supported by substantial evidence. He argues that the evidence does not support the conclusion that the excavation of the pond was consistent with the purposes of the wetlands act, and, even if it did support that conclusion, there was not substantial evidence to support the conclusion that the Casiellos be permitted to spread the fill from the excavation over 1000 square yards of wetlands.

The purpose of the Inland Wetlands and Watercourses Act (act) is to provide an orderly process in which the rights of landowners to use or develop their land can be balanced with the need to protect the invaluable public resource of wetlands. See General Statutes § 22a-36. The statute, and the regulations adopted to implement it, provide for an application and hearing process through which these competing interests are balanced. See General Statutes § 22a-42a.

Section 22a-42 (a) expressly encourages localities to regulate wetlands within their jurisdiction. In interpreting the wetlands act, our Supreme Court has con-eluded that a local agency “empowered to implement the wetlands act must ... be vested with a certain amount of discretion in order to carry out its function.” Red Hill Coalition, Inc. v. Conservation Commission, 212 Conn. 710, 722, 563 A.2d 1339 (1989). In deference to this discretion, review of wetlands commission decisions is not de novo. Instead, the reviewing court must sustain the agency’s determination if “an examination of the record discloses evidence that supports any one of the reasons given”; Huck v. Inland Wetlands & Watercourses Agency, 203 Conn. 525, 539-40, 525 A.2d 940 (1987); or if the reviewing court’s search of the record of the hearings before the agency reveals any adequate basis for its decision. Samperi v. Inland Wetlands Agency, 226 Conn. 579, 588-89, 628 A.2d 1286 (1993), citing Gagnon v. Inland Wetlands & Watercourses Commission, 213 Conn. 604, 611, 569 A.2d 1094 (1990). The evidence to support any such reason, however, must be substantial. Huck v. Inland Wetlands & Watercourses Agency, supra, 540. “ ‘This so-called substantial evidence rule is similar to the “sufficiency of the evidence” standard applied in judicial review of jury verdicts, and evidence is sufficient to sustain an agency finding if it affords “a substantial basis of fact from which the fact in issue can be reasonably inferred.” ’ ” Id., 541.

In this case, the trial court thoroughly examined the record and expressly found that there was substantial evidence from which the commission could have concluded that the proposed construction, including the spreading of fill to cover the phragmite growth, would have a positive impact on the affected wetlands area. The trial court emphasized the report of the applicants’ expert, Frank E. Indorf, Jr., a soil and environmental consultant. His report states: “The construction of a pond on this site will increase the overall potential for diversity within a wetland system with expanded habitat for fauna and aquatic plants. The pond will improve the overall wildlife habitat of the present wetland area and will introduce a diversification of wetland wildlife into the area.” Indorfis report also indicated that the conversion of this area from one type of wetland to another type of wetland by the spreading of fill should not be considered an irreversible or irretrievable commitment of a resource.

The plaintiff directs us to other evidence that contradicts Indorf’s conclusions and could have led the commission to deny the Casiellos’ application. This contradictory evidence was considered by the trial court, and does not undermine a finding that substantial evidence supported the commission’s action. “ ‘In determining whether an administrative finding is supported by “substantial evidence,” a court must defer to the agency’s assessment of the credibility of the witnesses . . . even an expert, in whole or in part.’ ” Gardiner v. Conservation Commission, 222 Conn. 98, 108, 608 A.2d 672 (1992), quoting Briggs v. State Employees Retirement Commission, 210 Conn. 214, 217, 554 A.2d 229 (1989). “ ‘[T]he possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence. . . . The reviewing court must take into account [that there is] contradictory evidence in the record . . . but the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence . . . .’ (Citations omitted; internal quotation marks omitted.) Huck v. Inland Wetlands & Watercourses Agency, [supra, 203 Conn. 541-42].” Samperi v. Inland Wetlands Agency, supra, 226 Conn. 588. We conclude that the trial court properly deferred to the discretion of the commission, and we will not disturb the trial court’s finding that the action of the commission was supported by substantial evidence.

II

The plaintiff also claims that the trial court improperly found that the commission had reviewed alternatives to the applicants’ proposed action and had found no alternative to be feasible and prudent. The plaintiff suggests that the failure of the commission to identify specific alternatives it had considered, or to state expressly the reasons why each alternative was found not to be feasible and prudent, compels a finding that the commission failed to discharge the requirements of General Statutes § 22a-41 (b). We disagree.

Section 22a-41 (b) requires that “[i]n the case of an application which received a public hearing, a permit shall not be issued unless the [commission] finds that a feasible and prudent alternative does not exist. . . .” The statute further requires that the commission set forth, on the record, its finding in connection with the application, and the reason therefor. Although the statute may appear to require a more detailed exposition of the commission’s finding and reasons than was set forth in this case, our Supreme Court has held that “the statute does not require an inland wetlands agency explicitly to specify the factors that it has utilized in its evaluation of an application.” Samperi v. Inland Wetlands Agency, supra, 226 Conn. 598. “As long as a search of the record reveals the basis for the agency’s decision consistent with the substantial evidence standard . . . the reviewing court must infer that the local wetlands agency made a finding that the applicant’s alternative was the feasible and prudent alternative.” Id., 595-96.

As indicated in part I, we are convinced that the trial court properly found that substantial evidence supported the commission’s decision. The commission held hearings, conducted site visits of the subject property, reviewed alternative proposals for the placement of the pond, and reviewed reports of experts. Those opposed to the project were given the opportunity to comment and suggest alternatives for the consideration of the commission. The plaintiff, for example, had the opportunity to propose the alternative of denying the permit outright. Furthermore, the hearing process involved various changes in and refinements of the plan as it was originally proposed. Such changes are a common result of a land use commission’s deliberations; see Kleinsmith v. Planning & Zoning Commission, 157 Conn. 303, 311, 254 A.2d 486 (1968); and reflect the commission’s awareness and consideration of alternatives to the applicants’ proposal. “[T]he agency’s decision to approve the permit constituted an implicit finding that no other feasible and prudent alternatives existed . . . .” Samperi v. Inland Wetlands Agency, supra, 226 Conn. 596. We conclude that the trial court properly rejected this claim of error.

Ill

The plaintiff next claims that the participation of Campbell in the proceedings and decision on the Casiellos’ application tainted the outcome. The plaintiff argues that the record reflects Campbell’s prejudice against the plaintiff and his prejudgment of the application. The plaintiff points out that after Campbell announced that he might not be available for the final vote on the application, he requested permission to vote by proxy; the plaintiff believes this suggests Campbell had made a decision on the application prior to the final deliberations. The plaintiff further directs our attention to transcripts of the commission’s proceedings, which contain statements made by Campbell about the plaintiff and the plaintiff’s attorney that can fairly be described as pejorative. We are not persuaded.

“The law does not require that members of [land use] commissions must have no opinion concerning the proper development of their communities.” Furtney v. Zoning Commission, 159 Conn. 585, 594, 271 A.2d 319 (1970). “The evil to be avoided is the creation of a situation tending to weaken public confidence . . . in the exercise of zoning power.” (Internal quotation marks omitted.) Cioffoletti v. Planning & Zoning Commission, 209 Conn. 544, 554, 552 A.2d 796 (1989).

Here, the plaintiff alleges prejudice and prejudgment on the part of Campbell, which required his disqualification from the consideration of the Casiellos’ application. Our Supreme Court has held that disqualification is required in the face of such allegations if the commission members whose partiality is challenged “actually had made up their minds prior to the public hearing, regardless of any arguments that might have been advanced at the hearing.” (Emphasis added.) Id., 555. The burden of proving a commissioner’s partiality and prejudgment is on the plaintiff. Furtney v. Zoning Commission, supra, 159 Conn. 594-95.

The trial court found that there was no evidence in the record that Campbell had any financial interest in the outcome of the application or any disqualifying personal relationship with any opponent of the application. The trial court emphasized that the plaintiff had failed to show that Campbell had made a decision prior to the hearing that prevented his fair consideration of the evidence presented to the commission. We also note that the trial court record does not reflect that the plaintiff ever requested that Campbell or any other person testify in order to develop this claim of partiality and predisposition. See Cioffoletti v. Planning & Zoning Commission, supra, 209 Conn. 555-56. Furthermore, the comments on which the plaintiff relies in attempting to establish bias “were all made during the hearings or in the discussion preceding the vote upon the application. They do not, therefore, indicate any predisposition that would have disqualified [Campbell] before the hearing.” Id., 556.

We conclude that, on the basis of the evidence before it, the trial court properly found that the plaintiff had failed to demonstrate the kind of bias that would have required Campbell’s disqualification from the commission’s consideration of the Casiellos’ application.

IV

The plaintiff further claims that the public notice provided by the commission of the pendency of the Casiellos’ application was legally insufficient. The plaintiff notes that the published notice contained only the information that the Casiellos intended to create a small pond, and not that they planned to spread the fill from the excavation over 1000 square yards of wetlands. The plaintiff argues that the absence of this information misled the public by not making it aware of the full impact the granting of the application could have on the involved wetlands. The plaintiff concludes that the notice was inadequate to allow those concerned about the proposal to make intelligent preparation for participation in the public hearing. We do not agree.

General Statutes § 22a-42a (c) requires public notice prior to a hearing on an application pursuant to the inland wetlands regulations. “[T]he fundamental reason for the requirement of notice is to advise all affected parties of the opportunity to be heard and to be apprised of the relief sought.” (Internal quotation marks omitted.) Jarvis Acres, Inc. v. Zoning Commission, 163 Conn. 41, 47, 301 A.2d 244 (1972). “Compliance with statutorily prescribed notice requirements is a prerequisite to a valid action by a land use commission and failure to give proper notice constitutes a jurisdictional defect.” Peters v. Environmental Protection Board, 25 Conn. App. 164, 168, 593 A.2d 975 (1991). Failure to provide prehearing notice prevents interested parties from becoming involved in the hearing process. Notice “is adequate if it fairly and sufficiently apprises those who may be affected of the nature and character of the action proposed, so as to make possible intelligent preparation for participation in the hearing.” (Internal quotation marks omitted.) Koepke v. Zoning Board of Appeals, 25 Conn. App. 611, 617, 595 A.2d 935 (1991), rev’d, 223 Conn. 171, 610 A.2d 1301 (1992).

The plaintiff does not claim a defect in the technical notice requirements, such as publication at certain times and in an appropriate newspaper. The plaintiff’s claim is limited to the failure of the notice to inform the public of the proposal to spread the fill from the pond excavation over 1000 square yards of wetlands. We have previously stated that “the notice need not describe the proposed action with exactitude.” Cocivi v. Plan & Zoning Commission, 20 Conn. App. 705, 708, 570 A.2d 226, cert. denied, 214 Conn. 808, 573 A.2d 319 (1990); see also Kleinsmith v. Planning & Zoning Commission, supra, 157 Conn. 311. Although the construction of a small pond as announced in the notice may not set forth all details of the planned action, anyone interested in determining the full impact of the construction of this pond on the wetlands would be alerted so that they could learn the specific details of the plan.

The notice provided in this case specifically stated that data regarding the application was on file at the land use office. The plans submitted with the application, available at the land use office, set forth the size of the pond, the location of the pond and the proposed use of the fill in the wetlands. These plans clearly present the details of the proposal in a way allowing interested persons meaningful participation in the public hearing process.

The trial court expressly found that the notice contained the names of the applicants, the exact location of the proposed activity, and the proper date and time of the public hearing. In light of the trial court’s findings, and because the prehearing notice clearly indicated that data concerning the details of the application and approval were available at the land use office, we conclude that the trial court properly found that the published notice met the statutory requirements.

V

The plaintiff’s final claim is that the commission failed to require the Casiellos to submit information as set forth in the appendix to the town’s inland wetland regulations. In his brief, the plaintiff concedes that the commission was not obligated to require the Casiellos to submit detailed information concerning all of the items in the appendix. The plaintiff claims only that the commission arbitrarily and capriciously failed to require the information that was submitted to be more professional in form. The plaintiff argues that the maps and diagrams submitted to the commission should have been marked with the seal of a professional engineer or attestation of a soil scientist, and should have been drawn to scale and located the areas of the proposed development with precision.

The trial court dismissed this claim of error by pointing out that the inland wetland commission’s regulations allowed for, but did not mandate, the submission of the documentation listed in the appendix. It was within the discretionary power of the commission to proceed on the application with the supporting material as submitted. We will not reverse the trial court’s finding that the information submitted to the commission provided a substantial basis to approve the Casiellos’ application.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 22a-19 (a) provides in relevant part: “In any administrative, licensing or other proceeding, and in any judicial review thereof . . . any person . . . may intervene as a party on the filing of a verified pleading asserting that the proceeding ... for judicial review involves conduct which has, or which is reasonably likely to have, the effect of unreasonably polluting, impairing or destroying the public trust in the air, water or other natural resources of the state.”

       General Statutes $ 22a-41 (b) provides: “In the case of an application which received a public hearing, a permit shall not be issued unless the commissioner finds that a feasible and prudent alternative does not exist. In making his finding the commissioner shall consider the facts and circumstances set forth in subsection (a). The finding and the reasons therefor shall be stated on the record.”

       The plaintiff also claims that the trial court improperly denied his applications for an ex parte temporary restraining order and for a temporary injunction. Our affirmance of the final judgment of the trial court makes it unnecessary to review this claimed error, as there is no practical relief that we could afford the plaintiff. Cioffoletti v. Planning & Zoning Commission, 34 Conn. App. 685, 690, 642 A.2d 1220, cert. denied, 230 Conn. 916, 645 A.2d 1018 (1994).

       The Inland Wetlands and Watercourses Act (act); found at General Statutes § 22a-36 et seq.; instructs municipalities to adopt regulations in conformity with the act in order to effectuate the purposes of the act. General Statutes § 22a-42 (a). The town of Redding has done so and the Casiellos’ application was processed in conformity with these local regulations, not directly under the act. These regulations, however, are essentially a local implementation of the act; local regulations cannot impose a lesser responsibility on a locality than the act itself imposes on the commissioner of environmental protection, although local regulations may impose requirements which are more stringent if they are consistent with the act. T. Tondro, Connecticut Land Use Regulation (2d Ed. 1992) pp. 267-68. In neither the trial court nor this court did the plaintiff argue that the Redding inland wetlands and watercourses regulations imposed any different requirement or required any result different from the act. Thus, we will review the plaintiff’s claims as if they arise directly under the act.

       General Statutes § 22a-42 (a) provides: “To carry out and effectuate the purposes and policies of sections 22a-36 to 22a-45, inclusive, it is hereby declared to be the public policy of the state to require municipal regulation of activities affecting the wetlands and watercourses within the territorial limits of the various municipalities and districts.”

       It should be noted that Campbell was present at the final vote, at which time he did in fact vote to approve the Casiellos’ application.

       In the course of discussing a news story which reported the initiation of legal action by the plaintiff in connection with the application of the Casiellos, Campbell, referring to the plaintiff, stated: “This guy’s a pawn. He’s a pawn in the hands of someone who capriciously abuses the rights of a free society, Burton.” The plaintiffs attorney is Nancy Burton.

       In his brief, the plaintiff also argues that the notice of the final action taken by the commission was legally insufficient. Our review of the record and the file indicates that this issue was never raised in or considered by the trial court, nor was it identified in the preliminary statement of issues at the outset of the appeal. Accordingly, we decline to review this claim. See Saradjian v. Saradjian, 25 Conn. App. 411, 419, 595 A.2d 890 (1991); Yale Literary Magazine v. Yale University, 4 Conn. App. 592, 597, 496 A.2d 201 (1985), aff'd, 202 Conn. 672, 522 A.2d 818 (1987).

       The notices published prior to the public hearing provided: “The Red-ding Conservation Commission will open a Public Hearing on June 2,1992 at 8:00 p.m. in the Old Town House, Redding Center, to consider the following: Application 92-09 Peg & Gerry Casiello, 152 Gallows Hill Road. Construction of a small pond. Data on file at the Land Use Office, Old Town House.”

       General Statutes § 22a-42a (c) provides in relevant 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. 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. . . .”


author: Spear, J.

text:
    State of Connecticut v. Pearlie Alford
    (11826)
    Dupont, C. J., and Spear and Hennessy, Js.
    Argued November 28, 1994
    decision released March 14, 1995

      William Holden, public defender, and Auden Grogins, special public defender, with whom, on the brief were Leanne Costa and Karen A. McCormack, certified legal interns, for the appellant (defendant).

      Donald A. Browne, state’s attorney, for the appellee (state).
   Spear, J.

The defendant was charged with two counts of manslaughter in the first degree in violation of General Statutes § 53a-55 (a), two counts of assault in the first degree in violation of General Statutes § 53a-59 (a) (3) and two counts of risk of injury to a child in violation of General Statutes § 53-21. She appeals from a judgment of conviction of two of these counts, assault in the first degree and risk of injury to a child. On appeal, the defendant claims that the trial court improperly (1) denied her motions for judgment of acquittal, (2) admitted certain prejudicial photographs into evidence, (3) commented on the evidence, and (4) admitted evidence of consciousness of guilt and instructed the jury thereon. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. Brenda Hart, a two year old, went to live with the defendant, her godmother, in the summer of 1989. At that time, Brenda was in good physical condition except for a ringworm condition, a slight cut on her lip and a few scratches on one of her legs. In the spring of 1989, Brenda’s appearance was normal and she did not have any of the visible injuries later depicted in postmortem photographs. The defendant frequently screamed at, beat and punched Brenda. Incidents of physical abuse included beating Brenda on her legs, back and arms with a belt, punching her in the mouth, striking her with a coat hanger and a belt, pushing her down with sufficient force to cause her to lose a tooth, striking her with a key chain strap with the keys attached and kicking her in the buttocks.

Brenda was admitted to Bridgeport Hospital on December 15, 1989, in an unconscious condition. She had multiple abrasions, lacerations and bruises on her face, head and neck, a black eye, a missing tooth and areas of head swelling. Brenda had suffered a subdural hematoma and a fracture of the lower jaw, both of which had occurred within the previous two weeks and were consistent with having been caused by trauma. She also was bleeding from her nose and mouth, had lumps on her head and had loop shaped marks over her entire body. Brenda died on December 22, 1989, and the autopsy determined that four upper incisor teeth were missing as a result of blunt impact sustained at different times within three months of her death. Other injuries were noted, including two separate hemorrhages on the interior of the scalp that were less than one month old and had apparently been caused by blunt instruments. Brenda’s death was caused by numerous cerebral injuries that were the result of a significant number of blunt impacts to the head and possible shaking, which impaired the functioning of the brain.

I

The defendant claims that the evidence was insufficient to convict her of either assault in the first degree in violation of § 53a-59 (a) (3) or risk of injury to a child in violation of § 53-21. “We review a claim of insufficiency of the evidence in accordance with a well established two part test. We first construe the evidence presented at trial in a manner favorable to sustaining the verdict, and then determine whether the jury could reasonably have found, upon the facts established and the inferences reasonably drawn therefrom, that the cumulative effect of the evidence established guilt beyond a reasonable doubt. . . . The probative force of the evidence is not diminished if it consists of circumstantial, rather than direct, evidence.” (Citations omitted; internal quotation marks omitted.) State v. Sauris, 227 Conn. 389, 395-96, 631 A.2d 238 (1993); State v. Ogrinc, 29 Conn. App. 694, 697, 617 A.2d 924 (1992).

In support of her motions for judgment of acquittal, the defendant relied on a detailed review of the evidence presented by the defense and the claimed impeachment of certain state’s witnesses. It is not necessary for us to review each evidentiary dispute pointed out by the defendant. Suffice it to say that at trial the issues were hotly contested and there was conflicting testimony from expert witnesses. It is axiomatic, however, that resolution of such disputes lies within the province of the jury. Our standard of review of guilty verdicts “gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinder’s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution.” (Internal quotation marks omitted.) State v. Boykin, 27 Conn. App. 558, 564, 609 A.2d 242, cert. denied, 223 Conn. 905, 610 A.2d 179 (1992).

The jury resolved disputes in the evidence in favor of the prosecution as to the charges on which the defendant was convicted. “[T]he inquiry into whether the record evidence would support a finding of guilt beyond a reasonable doubt does not require a court to ask itself whether it believes that the evidence . . . established guilt beyond a reasonable doubt. . . . Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Citations omitted; internal quotation marks omitted.) Id., 563. “We do not sit as a [seventh] juror who may cast a vote against the verdict based upon our feeling that some doubt of guilt is shown by the cold printed record. We have not had the jury’s opportunity to observe the conduct, demeanor, and attitude of the witnesses and to gauge their credibility.” State v. Stepney, 191 Conn. 233, 255, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 145, 79 L. Ed. 2d 772 (1984).

The jury was presented evidence that the defendant struck and beat the two year old victim on numerous occasions. It also heard expert testimony that the child’s injuries were consistent with the trauma inflicted on her during the time that she was in the care and custody of the defendant. Although the defendant concedes that the child’s injuries were very serious, she vigorously asserts that those injuries were sustained prior to the child’s coming to live with her. The jury, however, was entitled to believe the evidence offered by the state that the child was in good physical condition except for a ringworm condition, a slight cut on her lip and a few scratches on one of her legs at the time that she went to live with the defendant.

Having reviewed all of the evidence, we cannot conclude that the trial court abused its discretion in refusing to grant the defendant’s motions for judgment of acquittal as to assault in the first degree and risk of injury to a child.

II

The defendant asserts that the trial court abused its discretion in admitting three photographs depicting (1) a closeup of the inside surface of the child’s scalp, (2) a closeup of the top surface of the child’s brain, and (3) a closeup of the top portion of the child’s skull. She claims that the prejudicial effect of these gruesome and graphic photographs outweighed their probative value.

“[Pjhotographic evidence is admissible where the photograph has a reasonable tendency to prove or disprove a material fact in issue or shed some light upon some material inquiry. . . . There is no requirement in this state that a potentially inflammatory photograph be essential to the state’s case in order for it to be admissible; rather, the test for determining the admissibility of the challenged evidence is relevancy and not necessity. . . . Even if a photograph has the potential to prejudice the jury, it may be admitted if, in the court’s discretion, its probative value outweighs its possible prejudicial effects. . . . The trial court has wide discretion in balancing a photograph’s potential prejudice against its probative value.” (Citations omitted; internal quotation marks omitted.) State v. Doehrer, 200 Conn. 642, 649, 513 A.2d 58 (1986); State v. Scuilla, 26 Conn. App. 165, 170-71, 599 A.2d 741 (1991), cert. denied, 221 Conn. 908, 600 A.2d 1362 (1992).

The photographs were relevant to establishing the element of serious physical injury necessary to prove assault in the first degree in violation of § 53a-59, as well as manslaughter in violation of § 53a-55 (a) (1) and (3), which required the state to prove the cause of death. “Because the prosecution has the burden of establishing guilt beyond a reasonable doubt, [it] is not to be denied the right to prove every essential element of the crime by the most convincing evidence it is able to produce.” (Internal quotation marks omitted.) State v. Scuilla, supra, 26 Conn. App. 171.

We will not disturb the trial court’s finding that the probative value of the photographs outweighs their prejudicial effect unless the trial court has clearly abused its discretion. See State v. King, 216 Conn. 585, 603, 583 A.2d 896 (1990). We find no such abuse of discretion here.

Ill

The defendant claims that the trial court highlighted the state’s evidence in its comments to the jury “while not affording [the defendant] equal time.” She asserts that these comments deprived the defendant of her constitutional right to a fair trial. The defendant concedes that no objection was raised in the trial court to its marshaling of the evidence. She seeks review, however, pursuant to State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). We will not review the claim because the first prong of Golding has not been met.

The defendant failed to conform to Practice Book § 4065 (d) (2) and failed to file a transcript of the jury instructions. The record is not adequate to review the alleged claim of error.

IV

The defendant makes a twofold claim with respect to the consciousness of guilt evidence. She claims that the trial court improperly admitted such evidence and improperly instructed the jury with respect to that evidence.

At trial, the state’s attorney asked the following question of Olivia Bell, a Bridgeport police officer: “As part of a conversation that you had with [the defendant] at the Bridgeport Hospital on the date of December 15, 1989, did you ask her if she hit Brenda Hart?” Bell responded: “Yes, I did.” The state’s attorney then asked: “And what did she answer?” Bell responded: “She said that she does not physically discipline her children. She said no. She doesn’t physically discipline her children.” The trial court instructed the jury that it could use this statement from the defendant as evidence of her consciousness of guilt.

There was no objection to the questions at trial and the defendant made no motion to strike the testimony. In addition, the defendant did not comply with Practice Book § 4065 (d) (2) by failing to include a verbatim statement of all relevant portions of the charge and all relevant exceptions to the charge in either her brief or appendix.

The burden of providing an adequate record for review rests on the appellant. Practice Book § 4061; State v. Barnes, 33 Conn. App. 603, 612, 637 A.2d 398 (1994); State v. James L., 26 Conn. App. 81, 84, 598 A.2d 663 (1991). We will not review this issue because it was not properly preserved.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-55 (a) provides in pertinent part: “A person is guilty of manslaughter in the first degree when: (1) With intent to cause serious physical injury to another person, he causes the death of such person ... or (3) under circumstances evincing an extreme indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person.”

       General Statutes § 53a-59 (a) provides in pertinent part: “A person is guilty of assault in the first degree when ... (3) under circumstances evincing an extreme indifference to human life he recklessly engages in conduct which creates a risk of death to another person, and thereby causes serious physical injury to another person . . . .”

       General Statutes § 53-21 provides in pertinent part: “Any person who wilfully or unlawfully . . ! does any act likely to impair the health or morals of [any child under the age of sixteen years], shall be fined not more than five hundred dollars or imprisoned not more than ten years or both.”

       The defendant’s claim that the trial court’s treatment of defense counsel violated the defendant’s right to a fair trial was withdrawn at oral argument.

       Not all of the conflicts were resolved in favor of the state; the defendant was acquitted of the charges of manslaughter in the first degree in violation of § 53a-55 (a) (1) and (3), assault in the first degree in violation of § 53a-59 (a) (3) and a second count of risk of injury to a child in violation of § 53-21.

        Golding states: “[W]e hold that a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” State v. Golding, supra, 213 Conn. 239-40.

       Practice Book § 4065 (d) (2) provides in pertinent part: “When error is claimed in the charge to the jury, the brief or appendix shall include a verbatim statement of all relevant portions of the charge and all relevant exceptions to the charge. . . .”

       See footnote 7.

       The defendant did not seek review on a claim of plain error or pursuant to State v. Golding, supra, 213 Conn. 233.


author: Landau, J.

text:
    Maureen Quinn v. Allstate Insurance Company
    (13062)
    Dupont, C. J., and Landau and Hennessy, Js.
    Argued December 6, 1994
    decision released March 14, 1995

      Joseph F. Trotta, with whom, on the brief, were Eileen M. Condon and Frederick J. Trotta, for the appellant (plaintiff).

      Stephen E. Goldman, with whom, on the brief, was Raymond T. DeMeo, for the appellee (defendant).
   Landau, J.

The plaintiff appeals from the judgment of the trial court granting the defendant’s motion for summary judgment. She claims that summary judgment was precluded by an existing genuine issue of material fact, namely, whether she was a resident of Donald Smith’s household entitled to underinsured motorist coverage under his insurance policy.

The facts of this case are not in dispute. On September 16,1989, the plaintiff was a passenger in a vehicle owned and being operated by Smith. An accident occurred, in which the plaintiff was injured. At the time of the accident, Smith was insured under a policy issued to him by the defendant, Allstate Insurance Company (Allstate).

Asserting that Smith’s negligence had caused her injuries, the plaintiff made a claim under his policy and was paid the full bodily injury coverage limit of $25,000 by Allstate. In addition, the plaintiff contended that she was entitled to underinsured motorist coverage benefits under the same policy because the bodily injury coverage was insufficient to compensate her for her injuries. Allstate denied the plaintiff’s demand, claiming that the policy expressly precludes recovery of both liability and underinsured motorist coverage benefits.

The plaintiff subsequently brought an action against Allstate, seeking a declaration that the underinsured motorist coverage benefits were due to her under the policy. Allstate filed a motion for summary judgment, which the trial court granted after a hearing. The court determined that Allstate was entitled to summary judgment as a matter of law in light of Lowery v. Valley Forge Ins. Co., 224 Conn. 152, 617 A.2d 454 (1992), and that no genuine issue of material fact existed. This appeal followed.

“The standards governing our review of a trial court’s decision on a motion for summary judgment are clear. Practice Book § 384 provides that summary judgment shall be rendered forthwith if 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. See Connecticut Bank & Trust Co. v. Carriage Lane Associates, 219 Conn. 772, 780-81, 595 A.2d 334 (1991); Lees v. Middlesex Ins. Co., 219 Conn. 644, 650, 594 A.2d 952 (1991); Trotta v. Branford, 26 Conn. App. 407, 409, 601 A.2d 1036 (1992). While the burden of showing the nonexistence of any material fact is on the party seeking summary judgment; see D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980); the party opposing [summary judgment] must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue. . . . Bassin v. Stamford, 26 Conn. App. 534, 537, 602 A.2d 1044 (1992). In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 317, 477 A.2d 1005 (1984). The test is whether a party would be entitled to a directed verdict on the same facts. . . . Trotta v. Branford, supra, 410. . . . Cortes v. Cotton, 31 Conn. App. 569, 572-73, 626 A.2d 1306 (1993).

“Equally well settled is that the trial court does not sit as the trier of fact when ruling on a motion for summary judgment. Lomangino v. LaChance Farms, Inc., 17 Conn. App. 436, 438, 553 A.2d 197 (1989) (in granting summary judgment, court’s function is not to decide issues of material fact). Sharp v. Wyatt, Inc., 31 Conn. App. 824, 844, 627 A.2d 1347 (1993). [T]he trial court’s function is not to decide issues of material fact, but rather to determine whether any such issues exist. Telesco v. Telesco, 187 Conn. 715, 718, 447 A.2d 752 (1982). Cortes v. Cotton, supra, [31 Conn. App.] 575.” (Internal quotation marks omitted.) Fleet Bank, N.A. v. Galluzzo, 33 Conn. App. 662, 665-66, 637 A.2d 803, cert. denied, 229 Conn. 910, 624 A.2d 1206 (1994).

The Allstate policy provides that Allstate “will pay those damages which an insured person is legally entitled to recover from the owner or operator of an uninsured auto because of bodily injury sustained by an insured person.” The policy also provides, however, that uninsured motorist coverage is excluded when the claimant sustains bodily injury “while in ... an uninsured motor vehicle which is owned by you [the named insured] or a resident relative.” This exclusion is authorized by § 38-175a-6 (c) (2) (A) of the Regulations of Connecticut State Agencies, which was upheld in Lowery v. Valley Forge Ins. Co., supra, 224 Conn. 152.

The policy in Lowery, as does the policy in this case, contained an exclusion of underinsured motorist coverage for vehicles “owned by or furnished or available for your regular use.” In Lowery, as here, the plaintiffs were passengers in the insured’s vehicle and, when the vehicle was involved in an accident, the insurer paid the plaintiffs the subject policy’s full liability limit. When the plaintiffs attempted to recover underinsured motorist benefits from the same policy under which they had already received liability benefits, the insurer denied the claim based on the policy exclusion.

The Supreme Court held that no underinsured motorist coverage could be recovered by the Lowery plaintiffs. After ruling that the insurer’s exclusionary provision was authorized by § 38-175a-6 (c) (2) (A) of the Regulations of Connecticut State Agencies, the court stated that “[b]oth the policy exclusion and the regulation on which it is based are fully consistent with the underlying rationale of underinsured motorist coverage, and with the difference between that coverage and liability coverage. In this connection, we agree with the reasoning of the Minnesota Supreme Court in two cases in which passengers in one car accidents unsuccessfully sought to recover underinsured motorists benefits from the carrier providing both liability and uninsured motorist coverage for the car involved in the accident.

“Liability insurance is purchased by an owner of a vehicle to protect passengers in that vehicle from the negligent driving of the owner or another driving the vehicle. Underinsured coverage, however, is intended to protect against a different type of risk, the risk that a negligent driver of another vehicle will have failed to purchase adequate liability insurance; that is, it is intended to protect the named insured and other additional insureds from suffering an inadequately compensated injury caused by an accident with an inadequately insured automobile. Myers v. State Farm Mutual Automobile Ins. Co., 336 N.W.2d 288, 291 (Minn. 1983). An insured wishing to provide greater protection from his own negligence for himself and his passengers should purchase additional liability insurance coverage; allowing underinsured coverage in the instant case would, in essence, be allowing an individual to increase liability coverage by purchasing less expensive underinsured coverage. Meyer v. Illinois Farmers Ins. Group, 371 N.W.2d 535, 537 (Minn. 1985).

“Underinsured motorist coverage is first-party coverage and, in that sense, the coverage follows the person not the vehicle. Here, however, the [plaintiffs] have already collected under the liability coverage of the insurer of the [named insured’s] car. To now collect further under the same insurer’s underinsured motorist coverage would be to convert the underinsured motorist coverage into third-party insurance, treating it essentially the same as third-party liability coverage. The policy definition defining an ‘underinsured motor vehicle’ to exclude a vehicle owned by or regularly furnished or available to the named insured properly prevents this conversion of first-party coverage into third-party coverage. Myers v. State Farm Mutual Automobile Ins. Co., supra [336 N.W.2d 291].” (Internal quotation marks omitted.) Lowery v. Valley Forge Ins. Co., supra, 224 Conn. 157-58.

Here, because the vehicle in which the plaintiff was injured was owned by Smith, the named insured, the policy clearly excludes underinsured motorist coverage. The trial court properly concluded that this exclusion, upheld in Lowery, entitled Allstate to summary judgment as a matter of law.

The trial court also properly concluded that no genuine issue of material fact existed that would preclude summary judgment. Despite her argument, whether the plaintiff is a resident of Smith’s household is irrelevant to the issue of whether she may recover underinsured motorist benefits under the Allstate policy. As the trial court stated, “the exclusionary language applies by reason of the fact that Donald Smith was the named insured and [the plaintiff’s] injuries were sustained in a vehicle owned by him as the named insured, and therefore the plaintiff’s status has no bearing on her right to recover.”

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff is an insured person by virtue of the policy provision that defines an insured person as “[a]ny person while in [the named insured’s] insured auto with [the named insured’s] permission.”

       The Allstate policy defines an uninsured auto to include an underinsured auto.

       “Your” was defined in the policy to include the named insured and any resident relative. Lowery v. Valley Forge Inc. Co., supra, 224 Conn. 154-55.


text:
    Laura Jaser v. George Jaser
    (11838)
    Landau, Heiman and Spear, Js.
    Argued October 31, 1994
    decision released March 14, 1995

      Adele V. Patterson and Elaine S. Arriendóla, for the appellant (plaintiff).

      WilliamF. Gallagher, with whom, on the brief, were Cynthia C. Bott and Barbara L. Cox, for the appellee (defendant).

      Mark R. Soboslai, for the minor children.
   Landau, J.

In this appeal from a judgment of dissolution of marriage and a modification of that judgment, the plaintiff claims that the trial court improperly (1) entered financial orders in its judgment of dissolution of marriage that were not supported by the evidence, and (2) modified its previous orders in regard to child support and lump sum alimony. She asserts that the trial court failed to accord lis pendens their legal effect, which resulted in original financial orders that were not supported by the evidence and were inequitable. She also argues that, as to the modification, the trial court failed to address the threshold issue in that it failed to find a substantial change in circumstances. See General Statutes § 46b-86; Emerick v. Emerick, 28 Conn. App. 794, 802, 613 A.2d 1351, cert. denied, 224 Conn. 915, 617 A.2d 171 (1992).

The plaintiff commenced her dissolution action against the defendant on January 26,1988, seeking custody of their three minor children and financial relief. In a cross complaint, the defendant likewise sought a dissolution of the marriage and other relief, including custody. A trial was held in October, 1991, during which all issues were heard except, by agreement of counsel, custody and visitation. The trial court rendered judgment on February 5,1992, in which it dissolved the parties’ marriage and ordered, inter alia, (1) that the defendant pay child support in the amount of $346.63 per week, per child, and all medical and dental expenses, (2) that the plaintiff receive the family residence, (3) that the defendant pay all encumbrances on the family residence and pay off the first and second mortgages within five years, (4) that the plaintiff receive a condominium located in Quebec, Canada, (5) that the defendant pay periodic alimony in the amount of $250 per week for ten years or until the plaintiff or the defendant dies or the plaintiff remarries, and (6) that the defendant pay lump sum alimony in the amount of $100,000, payable at the rate of $20,000 per year, beginning one week after the date of the judgment.

The defendant subsequently filed a motion entitled “motion for reargument, reconsideration and to set aside judgment.” Following argument on that motion, the trial court modified its February 5,1992 judgment by reducing the child support award, changing the method of paying the lump sum alimony and vacating the award of the Quebec condominium. This appeal from the judgment and the modified judgment followed.

In conjunction with this appeal, this court ordered counsel for the parties and for the minor children to brief and argue the following issues: (1) Is it plain error for the trial court to hear a motion that affects the amount of child support, without the participation of appointed counsel for the minor children, in light of the provisions of General Statutes § 46b-54 and the relevant case law? (2) Whether the Appellate Court may properly hear an appeal from the granting of a motion affecting child support without the participation of counsel for the minor children.

I

We first address the issues that this court ordered the parties to address, to which the following facts are relevant. Attorney Mark Soboslai was appointed by the trial court as counsel for the minor children on December 7,1988, in the midst of proceedings on motions for custody of the children and for exclusive possession of the family residence. The hearing was adjourned and rescheduled to allow Soboslai’s participation and, when the proceedings were reconvened on January 4,1989, Soboslai was present. At that time, the parties and Soboslai presented an agreement to the court that provided, inter alia: “The parties contemplate, Your Honor, meeting with Mr. Soboslai on matters concerning joint custody, residence and visitation, and contemplate after that meeting coming to the court for more extensive orders or structured visitation.” The court entered orders in accordance with the agreement.

Subsequently, the court bifurcated the trial to separate issues of permanent custody from financial issues. The plaintiff asserts that the trial court did not request the participation of counsel for the minor children in the proceedings involving financial matters. Moreover, both parties and counsel maintain that there was a mutual agreement and understanding that Soboslai’s participation would not be required at the trial of the financial issues. Soboslai maintains that this agreement was reached after he determined that the cost of his involvement in the dispute over the financial matters outweighed any benefit to the minor children.

“The court may appoint counsel for any minor child or children . . . if the court deems it to be in the best interests of the child or children. . . .” General Statutes § 46b-54 (a). “Counsel for the child or children shall be heard on all matters pertaining to the interests of any child, including the custody, care, support, education and visitation of the child, so long as the court deems such representation to be in the best interests of the child.” General Statutes § 46b-54 (c).

While “[i]t is not . . . mandatory that counsel be appointed in every situation”; Nye v. Marcus, 198 Conn. 138, 146, 502 A.2d 869 (1985); “ ‘[generally, appointment of counsel for minor children rests within the discretion of the trial court.’ ” Id. In this case, the court properly exercised its discretion pursuant to § 46b-54 (a) and appointed counsel for the minor children.

Section 46b-54 vests discretion in the trial court to determine counsel’s role in the proceedings. The plain language of § 46b-54 (c) permits counsel for the minor children to be heard on those “matters pertaining to the interests of any child ... so long as the court deems such representation to be in the best interests of the child.” See Knock v. Knock, 224 Conn. 776, 791, 621 A.2d 267 (1993). Section 46b-54 does not require the trial court to hear counsel on every issue regarding the minor children. Rather, the statute directs the trial court to hear counsel on those matters as to which the court deems that it is in the best interests of the child to do so. It follows as a corollary that because the trial court may appoint counsel for the minor child only when it deems representation is in the best interests of the child; see General Statutes § 46b-54 (a); and counsel shall be heard on all matters pertaining to the interests of the child as long as the court deems the representation to be in the best interests of the child; see General Statutes § 46b-54 (c); then the appointment of counsel is a general appointment unless and until the court limits the appointment.

In this case, it is apparent from the record that the trial court adopted the agreement of the parties that the appointment would be limited to “matters concerning joint custody, residence and visitation.” There is no suggestion in the record that the trial court ordered Soboslai’s participation in any other issues, including that of child support. To the contrary, the record is clear that counsel was appointed for the limited purposes of custody, residence and visitation, none of which was before the trial court during the trial of financial matters or the subsequent motion hearing. Representations made to the trial court and in letters between the attorneys and counsel for the minor children reflect that all involved understood that Soboslai’s retainer was limited to the issues of custody, residence and visitation.

We conclude that, under the circumstances of this case, because counsel’s appointment was limited, it was proper for the trial court to have heard the motion affecting child support without the participation of counsel for the minor children. Consequently, we also conclude that we may properly hear this appeal from the granting of that motion.

II

The plaintiff claims that the trial court improperly modified the February 5, 1992 judgment in that the court was not presented with any evidence of a substantial change in circumstances. We agree.

After the judgment dated February 5, 1992, the defendant filed his motion for reargument, reconsideration and to set aside judgment on February 20,1992. The trial court heard the motion on September 16, 1992, and filed a memorandum of decision on October 7, 1992.

In response to the plaintiffs claim that the judgment was improperly modified, the defendant asserts that he never filed a motion for modification pursuant to General Statutes § 46b-86* ***** and, therefore, did not have to show a substantial change in circumstances. He asserts that he filed a motion for reargument, reconsideration and to set aside the judgment and that the court’s use of the word “modify” in its memorandum of decision on that motion is not determinative of the type of motion filed.

Regardless of how the defendant characterizes his motion, we must examine the practical effect of the trial court’s ruling in order to determine its nature. Only then can we determine whether the ruling was proper. See Diamond v. Diamond, 32 Conn. App. 733, 741-42, 631 A.2d 1157 (1993). A modification is defined as “[a] change; an alteration or amendment which introduces new elements into the details, or cancels some of them, but leaves the general purpose and effect of the subject-matter intact.” Black’s Law Dictionary (6th Ed. 1990).

Conversely, “the purpose of a reargument is ... to demonstrate to the court ‘that there is some decision or some principle of law which would have a controlling effect, and which has been overlooked, or that there has been a misapprehension of facts.’ ” In re Hooker’s Estate, 173 Misc. 515, 517, 18 N.Y.S.2d 107 (1940). A reconsideration “implies reexamination and possibly a different decision by the [court] which initially decided it.” Kerr-McGee Nuclear Corp. v. New Mexico Environmental Improvement Board, 97 N.M. 88, 92, 637 P.2d 38 (1981). While a modification hearing entails the presentation of evidence of a substantial change in circumstances, a reconsideration hearing involves consideration of the trial evidence in light of outside factors such as new law, a miscalculation or a misapplication of the law. To set aside means “[t]o reverse, vacate, cancel, annul, or revoke a judgement . . . .” Black’s Law Dictionary (6th Ed. 1990).

It is apparent from the transcript of the hearing held on September 16,1992, that the parties presented and the trial court heard the motion as a motion to modify. The trial court’s memorandum of decision further clarifies that the court regarded its ruling as a modification. Therein, the court states its understanding that “[t]he defendant . . . moved to modify” the judgment. The court then concludes that “some modification is in order” and orders what it terms to be “modifications” of the judgment. See footnote 6.

Moreover, neither party, at the time of the hearing or when the memorandum of decision was received, sought to bring to the attention of the court that what was sought was other than a modification of the judgment. Our rules of practice are designed to assure, and fair play requires, that such details be brought to the attention of the court expeditiously. Donaghue v. Gaffy, 53 Conn. 43, 52, 2 A. 397 (1885). Had the trial court been advised by the parties that there was a question concerning the motion sought to be heard and the decision received, it clearly could have remedied any deficiency under our rules in the trial court. The appeal process should not be utilized for this purpose. Fuessenich v. DiNardo, 195 Conn. 144, 149, 487 A.2d 514 (1985).

Having determined that the trial court granted a modification, we must next consider whether the court found that a substantial change of circumstances existed. “The burden is on the party seeking modification to show the existence of a substantial change in circumstances.” Emerick v. Emerick, supra, 28 Conn. App. 802. In this case, however, the trial court made no finding of a substantial change in circumstances. The modification of the February 5,1992 judgment was improper, therefore, because the required threshold showing of a substantial change in circumstances was not met by the party seeking the modification.

This ruling severely impacts the trial court’s original judgment. The singular implication to be drawn from the trial court’s willingness to modify the judgment is that the judgment was based on an incomplete analysis of the pertinent facts. Bartley v. Bartley, 27 Conn. App. 195, 198, 604 A.2d 1343 (1992). A judgment in an action for a dissolution of marriage is a carefully crafted mosaic. Tremaine v. Tremaine, 34 Conn. App. 785, 792, 643 A.2d 1291 (1994). The modification in this case affected child support, lump sum alimony and property rights. The symmetry and harmony of the tiles in the original design were so disturbed by the modification that we must reverse the original judgment and order a new trial.

The judgment is reversed as to all orders except that dissolving the parties’ marriage and the case is remanded for a new trial.

In this opinion the other judges concurred.

       General Statutes § 46b-54 provides: “(a) The court may appoint counsel for any minor child or children of either or both parties at any time after the return day of a complaint under section 46b-45, if the court deems it to be in the best interests of the child or children. The court may appoint counsel on its own motion, or at the request of either of the parties or of the legal guardian of any child or at the request of any child who is of sufficient age and capable of making an intelligent request.
      “(b) Counsel for the child or children may also be appointed on the motion of the court or on the request of any person enumerated in subsection (a) of this section in any case before the court when the court finds that the custody, care, education, visitation or support of a minor child is in actual controversy, provided the court may make any order regarding a matter in controversy prior to the appointment of counsel where it finds immediate action necessary in the best interests of any child.
      “(c) Counsel for the child or children shall be heard on all matters pertaining to the interests of any child, including the custody, care, support, education and visitation of the child, so long as the court deems such representation to be in the best interests of the child.”

       In this appeal, the parties did not seek a decision as to the appropriateness of the nonparticipation of counsel for the minor children before the trial court, nor did they question the failure of counsel for the minor children to appear on appeal. Nonetheless, these issues warrant plain error review as they implicate interests of public welfare and fundamental justice between the parties. We note that the parties and counsel for the minor children were afforded the opportunity to brief and argue the issues. See Practice Book § 4185; Lynch v. Granby Holdings, Inc., 230 Conn. 95, 99, 644 A.2d 325 (1994).

       We understand and appreciate the reasons which might conflict with a rule mandating that minor children be represented at every stage of the proceedings in every matrimonial case. Matrimonial actions, although brought to a public arena because of the inability of persons to resolve their conflicts, are extraordinarily private in nature and should continue to be so viewed. “The law . . . ought to and generally does prefer the private ordering of interpersonal relationships over state intrusions on them.” J. Goldstein, A. Freud & A. Solnit, Beyond the Best Interests of the Child (1973), p. 50.
      The appointment of independent legal counsel for minor children may properly be regarded as further publicizing matrimonial proceedings. Additionally, the routine appointment of counsel for minor children may tax the resources of both the parties and the courts. Fees paid to counsel, either by the parties or taxpayers, might be better spent in the child’s interests in other ways. We can foresee that, in certain instances, the habitual appointment of counsel for minor children will engender duplication of work.
      “For the future, we suggest that, in the absence of strong countervailing considerations such as physical urgency or financial stringency, the better course is to appoint independant counsel whenever the issue of child custody is seriously contested. Landsman & Minow, ‘Lawyering for the Child: Principles of Representation in Custody and Visitation Disputes Arising from Divorce,’ 87 Yale L.J. 1126, 1129-34 (1978); [R.] Berdon, ‘Child Custody Litigation: Some Relevant Considerations,’ 53 Conn. B.J. 279, 286-88 (1979).” Yontef v. Yontef, 185 Conn. 275, 284, 440 A.2d 899 (1981).

       The legislature has not delineated, nor has the Supreme Court yet been presented with the opportunity to delineate, the obligations and limitations of the role of counsel for a minor child. Knock v. Knock, supra, 224 Conn. 791. We strongly echo the statement of the Knock court that representing a minor child creates practical problems for an attorney and that this important issue needs to be addressed. See also R. Berdon, “A Child’s Right to Counsel in a Contested Custody Proceeding Resulting from a Termination of the Marriage,” 50 Conn. B.J. 150 (1976).

       While the defendant argued at length on his own behalf at the hearing on the motion, the plaintiff asserts that the defendant was never sworn as a witness. Moreover, the plaintiff maintains that the defendant’s argument at the motion hearing was a reiteration of the one he made at the trial.

       In its memorandum of decision, the trial court stated: “The defendant has moved to modify the following items in the judgment filed February 5, 1992. Child support of $346 per child (3) per week, alimony $250 per week and lump sum alimony $100,000 payable $20,000 per year (5) . . . . The plaintiff had requested support of $250 per week per child. However, the court using the prescribed guidelines arrived at the larger figure. Since it is evident that the defendant is presently burdened with some heavily encumbered real estate that is not easily saleable in today’s market and the plaintiff requested the $250 per week per child for support, some modification is in order.

        “Reargument and reconsideration are granted and the judgment is amended as follows.
      “The child support is modified, to $250 per week per child for each of the three children. . . . The only other modification is that the lump sum alimony of $100,000 payable at the rate of $20,000 per year shall begin five years after the date of the decision, February 5, 1992 and be payable in five annual installments thereafter.
      “The award of Unit 10 Condominium Le Plateau, Quebec, Canada, is deleted.
      “The remainder of the judgment is not modified.” (Emphasis added.)

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

       The defendant also posits that because his motion was filed within the appeal period and because, if granted, it would have rendered the judgment ineffective, the motion was the equivalent of a Practice Book § 320 motion, not a motion to modify. Practice Book § 320 provides in pertinent part that “[mjotions in arrest of judgment . . . motions to set aside a verdict and motions for new trials . . . must be filed with the clerk within five days after the day the verdict is accepted or judgment rendered; provided that for good cause the court may extend this time.” Practice Book § 4009 provides in pertinent part that “if within the appeal period any motion is filed which, if granted, would render the judgment or decision ineffective, as, for example, a motion to open the judgment or to set aside the verdict or for judgment notwithstanding the verdict, the period of time for filing an appeal shall commence from the issuance of notice of the decision upon the motion . . . .”
      The defendant’s argument in this regard must fail because § 320 motions pertain only to jury trials, not bench trials. Motions in arrest of judgment, to set aside a verdict and for a new trial all require that the trier of fact be distinct from the trial court, in that each such motion seeks to attack the verdict that the trial judge has accepted. A § 320 motion is a prerequisite to full appellate review because it allows the reviewing court to have the benefit of the trial court’s opinion on the legality of the verdict. In the absence of a § 320 motion, a judgment rendered after a jury trial will only be reviewed pursuant to the plain error standard. Because this case entailed a bench trial, the defendant’s postjudgment motion cannot be characterized as a § 320 motion.
      We are not unaware of Dunham v. Dunham, 217 Conn. 24, 28-29, 584 A.2d 445 (1991), in which the Supreme Court permitted only plain error review because the appellant failed to file either a § 320 motion or a § 326 motion to set aside the judgment following a civil contempt order. This decision appears to create for civil nonjury cases the requirement that a § 320 or § 326 motion must be filed in every case to secure appellate review. Such a requirement would run contrary to the rationale underlying § 320 motions. We read Dunham as limited to it facts (i.e., the issue was not raised). See 1 Connecticut Practice, Practice Book Annotated (1995 pocket part W. Moller & W. Horton) p. 210.

       Effective October 1,1994, Practice Book § 204B allows for motions to reargue before the Superior Court.

       The following colloquies occurred between counsel for the defendant, the trial court and the defendant:
      “The Court: What are you looking for, [counsel], exactly?
      “[Counsel]: What I’d like to do is wipe out [the payments relating to alimony and lump sum alimony].
      “The Court: Wipe out the alimony?
      “[Counsel]: Well, she’s got $100,000 in lump sum coming and periodic alimony, $250 a week.
      “The Court: But—
      “[Counsel]: You’ve given—
      “The Court: It’s $250 a week that you want to wipe out?
      “[Counsel]: She’s got $1000 a week in child support, and he’s carrying the first and second mortgages. Now, I think that if he — if you reduce the child support, he would pay the mortgages. And then, if we deleted the other requirements, or at least made the life insurance optional so that if— that would reduce his payments to $1600 a week. He’d be able to manage that without falling into contempt.
      * ** *
      “[Counsel]: The final point, Your Honor, is that I would like to assert in connection with this proceeding is to — even if Your Honor isn’t inclined to grant him any relief on the payments, Mr. Jaser has told me that he is in need — that he feels constrained and unable to make the payments without moving pieces of real estate.
      * * *
      “[The Defendant]: What I’m concerned about — there’s—we’re in a period of fluctuation. Values fluctuate, and things happen in people’s lives. In my life, shortly after His Honor’s decision, I had an embezzlement from a partner of mine of $250,000. It created a horrendous situation, but I can’t explain that because its post judgment. But it happens in our lifetime. It’s created problems with me with the bank. . . . My problem right now is cash flow. If His Honor would give me some relief now in the payments up front— because it’s very difficult to make — to put them on the back end, maybe, when years from now, where I can pay the difference, I — let me work out of this thing. But I need some relief.”

       Moreover, the court’s modification orders included a modification of the award of lump sum alimony. Lump sum alimony “is a final judgment not modifiable by the court even if there is a change in circumstances. Turgeon v. Turgeon, 190 Conn. 269, 282, 460 A.2d 1260 (1983); Miller v. Miller, 16 Conn. App. 412, 416, 547 A.2d 922, cert. denied, 209 Conn. 823, 551 A.2d 430 (1988).” Barnett v. Barnett, 26 Conn. App. 355, 357, 600 A.2d 1055 (1992). The action of the trial court in this respect was therefore also improper.


text:
    State of Connecticut v. Carlos Fontanez
    (13165)
    Landau, Hennessy and Freedman, Js.

      Argued October 24, 1994
    decision released March 14, 1995

      Christine Perra, deputy assistant public defender, with whom, on the brief, was Lorenzo Smith, assistant public defender, for the appellant (defendant).

      Timothy J. Sugrue, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Scott Murphy, supervisory assistant state’s attorney, for the appellee (state).
   Hennessy, J.

The defendant, Carlos Fontanez, appeals from the judgment of conviction, after a conditional plea of nolo contendere pursuant to General Statutes § 54-94a, for 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 evidence seized pursuant to a roadside inventory search of the vehicle in which he was traveling. We find the record is inadequate to allow review of this claim and affirm the judgment of the trial court.

The defendant’s motion to suppress was denied in an oral decision of the trial court. On appeal, we are presented with complete transcripts of the suppression hearing and the trial court’s ruling on the suppression issue. Our close inspection of the record and the transcripts fails to reveal that the trial court made any findings of fact on which we can base review of this claim.

The transcripts provided to this court are completely devoid of any factual findings by the trial court. “Without any specific findings of fact . . . we cannot determine the basis of the court’s ruling and thus cannot review the merits of the defendant’s claim.” State v. Rosedom, 34 Conn. App. 141, 144, 640 A.2d 634 (1994).

This deficiency in the record should have been remedied by the appellant at the outset of the appeal process. Practice Book § 4061 provides that “[i]t is the responsibility of the appellant to provide an adequate record for review.” Where a transcript of an oral decision of the trial court fails to set forth the factual basis of the trial court’s decision, the appellant should perfect the record on appeal either by filing a motion to compel the trial court to file a memorandum of decision pursuant to Practice Book § 4183 (1), or by filing a motion for articulation pursuant to Practice Book § 4051. See State v. Rosedom, supra, 34 Conn. App. 144- 45; State v. Rios, 30 Conn. App. 712, 718-19, 622 A.2d 618 (1993) (O’Connell, J., concurring). Here the appellant failed to do either. “When our rules of practice are not followed, and the record is not rectified, we are left to guess or speculate as to the existence of a factual predicate. ... As it is not the function of this court to find facts, we decline to review this claim.” (Citations omitted.) State v. Rosedom, supra, 145- 46.

The judgment is affirmed.

In this opinion the other judges concurred.

       We also note that the trial court never signed the transcript of the oral decision as required by Practice Book § 4059. This deficiency should also have been remedied by the appellant. See State v. Lawler, 30 Conn. App. 827, 828 n.2, 622 A.2d 1040 (1993); State v. Rivera, 30 Conn. App. 224, 225 n.1, 619 A.2d 1146, cert. denied, 225 Conn. 913, 623 A.2d 1024 (1993).


author: Per Curiam.

text:
    Leslie A. Carothers, Commissioner of Environmental Protection v. Butkin Precision Manufacturing Company
    (12932)
    O’Connell, Heiman and Spear, Js.
    Submitted on briefs January 6
    decision released March 14, 1995

      Richard Blumenthal, attorney general, and David H. Wrinn, assistant attorney general, filed a brief for the appellant (plaintiff).
   Per Curiam.

The plaintiff brought this action to recover damages from the defendant for numerous alleged violations of the state’s hazardous waste management regulations. Because the defendant failed to appear for trial, the trial court granted the plaintiff’s motion for default. Thereafter, the trial court conducted a hearing in damages. At that hearing, the trial court rendered judgment on only two of the violations alleged in the complaint and denied judgment on the remaining twenty-eight violations. The sole issue on appeal is whether the trial court, having granted the plaintiffs motion for default for failure to appear for trial, improperly failed to render judgment as to each of the thirty violations pleaded in the complaint. We reverse the judgment of the trial court.

The defendant was defaulted pursuant to Practice Book § 364 (a), which provides: “If a defendant is defaulted for failure to appear for trial, evidence may be introduced and judgment rendered without notice to the defendant.” The result of an entry of a default for failure to appear is that liability is conclusively presumed. People’s Bank v. Horesco, 205 Conn. 319, 322, 533 A.2d 850 (1987). Therefore, the plaintiff was relieved of any obligation to prove the allegations of the complaint except as to the damages. Baldwin v. Harmony Builders, Inc., 31 Conn. App. 242, 245-46, 624 A.2d 393 (1993). The trial court improperly found that the defendant was not liable for twenty-eight of the alleged violations.

The judgment is reversed and the case is remanded to the trial court with direction to render judgment in favor of the plaintiff with respect to each of the alleged violations and for a new hearing in damages.

       The plaintiff abandoned her appeal of the trial court’s denial of injunctive relief prior to the date the matter was submitted on the briefs.