text:
    FRANK A. CITINO v. REDEVELOPMENT AGENCY OF THE CITY OF HARTFORD
    (AC 16900)
    Schaller, Spear and Dupont, Js.
    Argued September 23
    officially released December 15, 1998

      Kevin B. Carroll, for the appellant-appellee (plaintiff).

      Kenneth B. Kaufman, assistant corporation counsel, for the appellee-appellant (defendant).
   Opinion

DUPONT, J.

The two main issues of this appeal are (1) whether the plaintiff, Frank A. Citino, was entitled to a judgment against the defendant Hartford redevelopment agency for alleged misrepresentations made by the defendant to the plaintiff and (2) whether the doctrine of inverse condemnation requires the conclusion that the plaintiffs real estate was taken for a public use by the defendant without just compensation in violation of the fifth and fourteenth amendments to the United States constitution and article first, § 11, of the Connecticut constitution.

The trial court did not rely on the doctrine of inverse condemnation in rendering its judgment for the plaintiff on count one of his complaint but, rather, concluded that a judgment should be rendered for the plaintiff on the basis of unjust enrichment of the defendant. The judgment ordered damages to be paid to the plaintiff in the amount of $278,500, and ordered that the subject real estate be transferred by the plaintiff to the defendant free and clear of all mortgages, liens and encumbrances. The court did not award appraiser’s fees or attorney’s fees to the plaintiff. The plaintiff, in counts two and three of his complaint, also sought damages for negligent and fraudulent misrepresentation. He appeals from the judgment for the defendant on the latter counts. The defendant cross appeals from the judgment for the plaintiff on the first count of the plaintiffs complaint. The plaintiff claims, in connection with the cross appeal, that the trial court should have awarded him appraiser’s fees and attorney’s fees in connection with the first count, and that the trial court should not have ordered him to convey his realty.

This action arises out of activities in connection with a redevelopment project known as the Park-Squire-Wolcott project in the city of Hartford (city). The defendant agency, which was responsible for the redevelopment project, was created pursuant to the Redevelopment Act (act), General Statutes § 8-124 et seq. Pursuant to the act, redevelopment agencies are authorized to prepare redevelopment plans, to acquire property by eminent domain within redevelopment areas and to dispose of property within redevelopment areas to redevelopers. Redevelopment agencies may also issue bonds and accept grants and other financial assistance to further redevelopment projects. The act further requires that municipalities approve certain agency undertakings, and it authorizes municipalities to appropriate funds to the agencies.

The trial court found certain facts. The plaintiff purchased real property located at 457-469 Park Street and 17-19 Squire Street in Hartford on or about November 15, 1985. The defendant admitted in its answer that on or about May 30, 1988, the plaintiff met with officials from the defendant to secure financing in the form of a loan for the development of the two properties owned by him in an area to be redeveloped. At that time, the plaintiff was informed that the defendant wanted to acquire the property located at 17-19 Squire Street and 457-469 Park Street for purposes of a redevelopment project.

On February 15,1990, the defendant approved a redevelopment plan for the Park-Squire-Wolcott project. The plan was amended on July 19, 1990. On September 14,1990, the city council approved the plan as required by statute. See General Statutes § 8-127. The plan provided for the acquisition of eleven parcels of privately owned land located on Squire, Park and Wolcott Streets in Hartford. Property owners could retain their property if, within 180 days of the defendant’s prehminary acquisition notice, rehabilitation plans were approved by the city’s planning department and proof of financial resources sufficient to complete the proposed construction was presented to the agency. The plan, according to the trial court’s memorandum of decision, provided that “[t]he . . . project activities will be financed through the city of Hartford’s community development block grant program.”

The plaintiff met with officials of the defendant on several occasions to discuss his retaining and developing both properties pursuant to the redevelopment plan. In October, 1990, the defendant told the plaintiff that he could keep both properties and develop them himself if plans for the new construction were submitted and approved and if he could provide the defendant with evidence of financial resources for the development. Also, in October, 1990, the city served the plaintiff ■with an antiblight citation concerning the Squire Street property. The plaintiffs buildings on Park Street and Squire Street had been the sites of fires and, by 1990, the Park Street building had been totally demolished and the Squire Street building, although still standing, was uninhabited. The antiblight citation levied a fine of $17,820 against the plaintiff, and the plaintiff filed an appeal. Faced with the fine, the plaintiff secured financing in the form of a mortgage to rehabilitate the Squire Street property.

The plaintiffs proposal for the development of Park Street was rejected and, consequently, he was unable to secure financing for that property. Because the plaintiff failed to submit new plans and evidence of financial resources for the Park Street property, it was taken by the defendant by eminent domain on April 10, 1992. The plaintiff does not claim in this action that he was not fairly compensated for the taking of the Park Street property. He took no appeal claiming to be aggrieved by the statement of compensation; see General Statutes § 8-132; nor did he take any action claiming negligent or fraudulent misrepresentation by the defendant as to statements about Park Street. The trial court specifically noted that when the Park Street property was condemned, the plaintiff “received by judicial award the fair market value of that property and any severance damage which would be appropriate to compensate [the] taking of the Park Street property.”

After the defendant acquired the Park Street property, the defendant acquired by eminent domain all of the other properties within the Park-Squire-Wolcott redevelopment area except the plaintiffs property on Squire Street. The plaintiffs Squire Street property was the only property not formally taken by eminent domain, but it was not removed from the redevelopment plan. The defendant, as of the date of trial, had not implemented its redevelopment plan and the subject area had significantly deteriorated since 1988 when the plaintiff and the defendant first discussed the redevelopment of the area.

The trial court expressly found that there has been no formal abandonment of the redevelopment project. The court found that the process had been slow but that significant steps were scheduled to take place in early 1997, and stated that it could not “predict, one way or the other, whether, or at which point in time the project will actually come to fruition so as to physically develop the redevelopment property.”

The trial court found that “Squire Street was in fact able to be funded through various housing funding loans available through the public sector including the city of Hartford and the Capitol Housing Finance Corporation. The availability of those funds for the project caused the plaintiff to believe, though mistakenly, that adequate funding would be available to [rehabilitate the Park Street property]. . . . [T]he city of Hartford was putting additional pressure upon the plaintiff to renovate the Squire Street building, under threat of very substantial fines, which pressure was unwarranted, as the building was a part and parcel of the designated redevelopment area scheduled for public acquisition and redevelopment. Consequently the plaintiff, in reliance on that mistaken belief, and in response to the assessing of fines by the city, did reconstruct the Squire Street property, thereby incurring mortgage obligations of $248,500.” At the time Squire Street was reconstructed, the plaintiffs Park Street property had not yet been taken by eminent domain.

The plaintiff was told (1) that he could not demolish the Squire Street building and (2) that if he did, he would have to post a bond of $108,000, which would be forfeited if he did not replace the building within eighteen months. He was not told that if he did not do anything and let the property be condemned, the antiblight fine would be waived. The plaintiff rehabilitated his property at Squire Street to the satisfaction of the defendant. It was renovated with modern and updated appliances, but it was situated within an area of deteriorated and boarded-up buildings owned by the defendant. The defendant moved all of the tenants out of the adjacent buildings, which buildings are all now vacant and their grounds strewn with litter. Of the six apartments in the plaintiffs Squire Street property, only two were producing rent at the time of trial.

I

THE PLAINTIFF’S APPEAL AS TO NEGLIGENT AND FRAUDULENT MISREPRESENTATION

The plaintiff sought damages for negligent and fraudulent misrepresentations by the agency. Before turning to the substantive claims of the parties, we must first address the trial court’s failure to state the standard of proof used in making its findings that the plaintiff did not prove either negligent or fraudulent misrepresentation. Where a court’s memorandum of decision “is silent as to the standard of proof used, it will be assumed [in a civil matter] that the one ordinarily applied in most civil cases, that of a fair preponderance of the evidence, was used.” (Internal quotation marks omitted.) Schaffer v. Lindy, 8 Conn. App. 96, 105, 511 A.2d 1022 (1986); see also Manaker v. Manaker, 11 Conn. App. 653, 660, 528 A.2d 1170 (1987). Kavarco v. T.J.E., Inc., 2 Conn. App. 294, 297, 478 A.2d 257 (1984), is a case in which the trial court found in the plaintiffs favor regarding a fraudulent misrepresentation claim without stating the standard of proof it used. We held that because fraud must be proven by a more exacting standard than a preponderance of the evidence and, because the trial court neither stated nor implied that it was applying the proper standard of proof, a new trial was required. Id., 297-98.

The present case involves a situation in which the standard of proof that should have been applied to the fraud claim is higher than a preponderance of the evidence. See Barbara Weisman, Trustee v. Kaspar, 233 Conn. 531, 540, 661 A.2d 530 (1995). Because we hold that the trial court correctly concluded that the plaintiff failed to sustain his burden of proof as to the fraudulent misrepresentation claim under a preponderance of the evidence standard, the plaintiff could not have sustained his burden of proof under the higher standard of clear and convincing proof either. We conclude that the trial court’s failure to state the standard of proof used does not necessitate a new trial in this case.

The plaintiff argues that the trial court incorrectly applied the law in deciding the plaintiffs misrepresentation claims in that the court incorrectly believed that the plaintiff had to prove that the defendant had “assured” him that he would be allowed to develop both the Park Street and the Squire Street properties, and that the plaintiff had a burden to investigate the truth of the defendant’s representations.

“On appeal, it is the function of this court to determine whether the decision of the trial court is clearly erroneous. . . . This involves a two part function: where the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision; where the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous.” (Internal quotation marks omitted.) Id., 541. “[W]e will disturb the trial court’s determination that the [defendant] made no fraudulent or negligent misrepresentations only if, in light of the evidence and the pleadings on the whole record, such a conclusion could not reasonably have been reached,” given the facts and the law to be applied to the facts. McClintock, v. Rivard, 219 Conn. 417, 427, 593 A.2d 1375 (1991).

The plaintiff alleges in his complaint that the defendant, through its agents, made certain false representations concerning the redevelopment plan, and the plaintiffs financing and development of both of his parcels of property. Specifically, the plaintiff alleges in the negligent misrepresentation count of his complaint that in reliance on the defendant’s representations that it intended to implement its redevelopment plan as to both properties, he secured financing to rehabilitate his Squire Street property by obtaining a mortgage in the amount of $249,000 and by spending $130,000 of his own funds. The plaintiff alleges that these representations were false when the defendant made them, and that the defendant knew or should have known that they were false and that they were made with the intent and purpose to defraud the plaintiff.

The plaintiffs misrepresentation claims are predicated on statements allegedly made by agency officials. Specifically, when discussing with the defendant his proposal for the development of both the Park Street and Squire Street properties, the plaintiff was told by Alan Greenwald, an executive of the defendant redevelopment agency, that “we have plenty of money to do this project.” The plaintiff also offered testimony supporting his claim that other agency officials told him that the Park Street project “was going to happen.” The plaintiff argues that the defendant assisted the plaintiff with the renovations of the Squire Street property knowing that the plaintiff had refused to renovate Squire Street without also renovating Park Street and knowing that the plaintiff believed that he would be allowed to renovate both parcels.

In the fraudulent misrepresentation claim, the plaintiff alleges that he developed extensive plans for both properties, which he submitted to the defendant in reliance on the defendant’s representations that the plaintiff could develop both properties, but those plans were rejected. The plaintiff also alleges that the defendant had no plan to help him secure financing for his proposal, and that the defendant’s representations to the contrary were false and made with the purpose of defrauding the plaintiff.

A

Negligent Misrepresentation

“Whether evidence supports a claim of fraudulent or negligent misrepresentation is a question of fact. J. Frederick Scholes Agency v. Mitchell, 191 Conn. 353, 358, 464 A.2d 795 (1983); Miller v. Appleby, 183 Conn. 51, 55, 438 A.2d 811 (1981).” McClintock v. Rivard, supra, 219 Conn. 427. “[Our Supreme Court] has long recognized liability for negligent misrepresentation. [It has] held that even an innocent misrepresentation of fact ‘may be actionable if the declarant has the means of knowing, ought to know, or has the duty of knowing the truth.’ Richard v. A. Waldman & Sons, Inc., 155 Conn. 343, 346, 232 A.2d 307 (1967) . . . .” (Citations omitted.) D’Ulisse-Cupo v. Board of Directors of Notre Dame High School, 202 Conn. 206, 217, 520 A.2d 217 (1987).

“The governing principles are set forth in ... § 552 of the Restatement Second of Torts (1977): One who, in the course of his business, profession or employment . . . supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.” (Internal quotation marks omitted.) Burnham v. Karl & Gelb, P.C., 50 Conn. App. 385, 390, 717 A.2d 811 (1998); see also Beverly Hills Concepts, Inc. v. Schatz & Schatz, Ribicoff & Kotkin, 247 Conn. 48, 57, 717 A.2d 724 (1998); Parker v. Shaker Real Estate, Inc., 47 Conn. App. 489, 494-95, 705 A.2d 210 (1998). “[T]he plaintiff need not prove that the representations made by the [defendant] were promissory. It is sufficient . . . that the representations contained false information.” D’Ulisse-Cupo v. Board of Directors of Notre Dame High School, supra, 202 Conn. 218.

In the present case, the trial court found that “the plaintiff was never given assurance that he would be allowed to develop the Park Street property. Although he and others may have been told, informally, that there was money available for the redevelopment project, no specific commitment had been given to him .... Although any statement that there was the funding for the project maybe generally accurate, in a general sense of that phrase, such statement would be far too general and superficial to be a basis for absolute reliance upon which to base a significant financial undertaking.” (Emphasis in original.)

The trial court also found that the plaintiff had been advised initially that in order to exclude his Park Street property from the “property to be acquired” under the redevelopment plan, plans for that property would have to be approved and that “ ‘evidence of financial resources sufficient to complete the proposed construction’ was required.” The trial court found that the plaintiff nevertheless “embarked upon the renovations of Squire Street on the mistaken belief that if it was completed he would be allowed to construct Park Street. He also thought that he had a commitment for funding for Park Street. Neither of these beliefs was accurate, although honestly held by the plaintiff.”

The plaintiff argues that the trial court stated the law incorrectly when it implied that for misrepresentation to exist, the defendant would have to have given the plaintiff “assurance” that he would be able to develop the Park Street property. The plaintiff argues that any statements that the defendant made to the plaintiff could be a basis for misrepresentation even without “absolute reliance” on them by the plaintiff.

The trial court’s references to whether the plaintiff was given “assurances” and to “absolute reliance” relate to the issue of whether the plaintiffs reliance on statements made by agents of the defendant was justified, an element of a cause of action for negligent misrepresentation. There must be a justifiable reliance on the misrepresentation for a plaintiff to recover damages. See Burnham v. Karl & Gelb, P. C., supra, 50 Conn. App. 390; see also Maturo v. Gerard, 196 Conn. 584, 589, 494 A.2d 1199 (1985). The basic element of a claim for misrepresentation, however, is whether there was a misstatement. Here, the trial court specifically found that “there was no actual misrepresentation on the part of the defendant.” Without a misrepresentation, there can be no justifiable reliance. On the basis of our review of the record, we hold that the trial court’s finding that there was no misrepresentation on the part of the defendant was not clearly erroneous.

B

Fraudulent Misrepresentation

The trial court’s finding that there was no misrepresentation applied to both negligent and fraudulent misrepresentation. The essential elements of a cause of action in fraud are: “(1) a false representation was made as a statement of fact; (2) it was untrue and known to be untrue by the party making it; (3) it was made to induce the other party to act upon it; and (4) the other party did so act upon that false representation to his injury.” (Internal quotation marks omitted.) Parker v. Shaker Real Estate, Inc., supra, 47 Conn. App. 493; see also Maturo v. Gerard, supra, 196 Conn. 587. “All of these ingredients must be found to exist; and the absence of any one of them is fatal to a recovery.” Bradley v. Oviatt, 86 Conn. 63, 67, 84 A. 321 (1912); see also Kilduff v. Adams, Inc., 219 Conn. 314, 329-30, 593 A.2d 478 (1991). Additionally, “[t]he party asserting such a cause of action must prove the existence of the first three of [the] elements by a standard higher than the usual fair preponderance of the evidence, which higher standard we have described as ‘clear and satisfactory’ or ‘clear, precise and unequivocal.’ ” Barbara Weisman, Trustee v. Kaspar, supra, 233 Conn. 540.

Although a cause of action for fraudulent misrepresentation differs from an action for negligent misrepresentation, a plaintiff asserting a claim under either theory must first prove a false statement or false representation on the part of the defendant. In the present case, the trial court found that the defendant made no misrepresentations to the plaintiff. Accordingly, for the reasons we stated with respect to the plaintiffs negligent misrepresentation claim, we conclude that the trial court’s finding that there was no fraudulent misrepresentation on the part of the defendant was not clearly erroneous.

II

THE DEFENDANT’S CROSS APPEAL

The defendant claims that neither unjust enrichment nor inverse condemnation can be the basis for the plaintiff s judgment on count one of his complaint. The defendant also claims that even if an inverse condemnation has occurred, the matter must be remanded for a hearing as to the proper amount of damages. We do not reach the question of whether the plaintiff was entitled to pursue a recovery based on the unjust enrichment of the defendant as the trial court concluded, because we hold that inverse condemnation has occurred. We uphold the judgment of the trial court that the plaintiff is entitled to damages, but do so, as we may, for a reason different from that of the trial court. See Cheshire v. McKenney, 182 Conn. 253, 261, 438 A.2d 88 (1980).

Inverse condemnation occurs when there has been a taking, without compensation, for a public purpose, without an actual or physical appropriation of property. See Laurel, Inc. v. State, 169 Conn. 195, 201, 362 A.2d 1383 (1975). The question here is whether the acts of the agency are sufficient to equate to a taking.

The trial court found that the plaintiff’s Squire Street property was “realistically economically useless” but that because the building has some physical use for a purpose permitted in the zone, a classic definition of inverse condemnation would not include the harm suffered by the plaintiff. The trial court did not squarely hold that the doctrine of inverse condemnation could not apply, stating that “[w]hether the plaintiffs plight falls within the traditional boundaries of the term inverse condemnation’ is unimportant.” Rather, the trial court “concludes that the plaintiff does have a cause of action in equity by virtue of the doctrine of unjust enrichment.”

The trial court’s statement that “traditional” inverse condemnation cannot exist where a building, although devoid of economic use, has some physical use for a purpose permitted by zoning must first be discussed. We begin by acknowledging that there is no doubt that a landowner “who, as a result of governmental action, suffers a total and permanent loss ... is entitled to recover damages.” (Emphasis added.) Luf v. Southbury, 188 Conn. 336, 342, 449 A.2d 1001 (1982). Total deprivation of property rights can constitute inverse condemnation. See id. The question we must answer, however, is whether anything less than a total and permanent loss of property or a property right can constitute an inverse condemnation.

The public good affects the uses to which private property may be put, and ordinarily requires no compensation to a landowner whose property is not directly involved in the public use and is not formally condemned by eminent domain, even if the public use results in the diminution of the landowner’s property rights or a decrease in the value of private property. Whether the regulation and use of land for the public good results in a noncompensable event or amounts to an unconstitutional taking of an adjacent landowner’s property for which damages are due is primarily a question of the degree of the interference with the landowner’s use of the property. See id., 349. The deprivation must be a loss of “the reasonable and proper use of the property . . . .” (Emphasis added.) Id., 352.

If the acts of a governmental or sovereign entity have substantially destroyed the value of the plaintiffs real estate, the plaintiff is entitled to damages. See Washington Market Enterprises, Inc. v. Trenton, 68 N.J. 107, 120, 343 A.2d 408 (1975). Such acts include the failure to effectuate a redevelopment project with reasonable dispatch, thereby allowing the passage of time to render the property shorn of almost all value. See id. Courts are empowered to provide a remedy for a taking without just compensation. Russo v. East Hartford, supra, 4 Conn. App. 274. This is so because the fifth and fourteenth amendments to the United States constitution and article first, § 11, of the constitution of Connecticut provide that private property cannot be taken for public use without just compensation. For inverse condemnation to occur, property does not have to be appropriated by governmental action to the extent that no value remains. It is sufficient if use of property is severely restricted and its profitability greatly reduced as a result of the action of the government. See Laurel, Inc. v. Commissioner of Transportation, 180 Conn. 11, 46, 428 A.2d 789 (1980). We conclude that inverse condemnation is not precluded where the property involved has not been stripped of all physical use for a purpose permitted by zoning.

A political subdivision with the power of eminent domain, such as the agency in this case, is subject to payment of damages in an inverse condemnation action based on an unconstitutional taking. See Dishman v. Nebraska Public Power District, 240 Neb. 452, 453, 482 N.W.2d 580 (1992); Rice Hope Plantation v. South Carolina Public Service Authority, 216 S.C. 500, 523, 59 S.E.2d 132 (1950); 27 Am. Jur. 2d, Eminent Domain § 823. Inverse condemnation is the doctrine asserted by landowners in actions initiated by them, instead of being an action initiated by a taking authority that had the right of eminent domain but did not exercise it, and is based on the constitutional proscription forbidding the taking of private property without just compensation. “Inverse condemnation should be distinguished from eminent domain. Eminent domain refers to a legal proceeding in which a government asserts its authority to condemn property. . . . Inverse condemnation is a shorthand description of the manner in which a landowner recovers just compensation for a taking of his property when condemnation proceedings have not been instituted.” (Citation omitted; internal quotation marks omitted.) Bauer v. Waste Management of Connecticut, Inc., 234 Conn. 221, 249-50 n.15, 662 A.2d 1179 (1995).

A condemning authority cannot prolong condemnation in a given case by actions that encourage deterioration by causing the destruction of some buildings and by ordering tenants to move and then abandoning the project. Foster v. Detroit, 254 F. Sup. 655, 663 (E.D. Mich. 1966), aff'd, 405 F.2d 138 (6th Cir. 1968). In an inverse condemnation case, the question is whether there has been a deprivation of the beneficial use of the property. See Cohen v. Hartford, 244 Conn. 206, 220-21, 710 A.2d 746 (1998). There is a de facto taking of property if property rights are impaired by an authority that failed to exercise its power of eminent domain, with damages for the taking to be ascertained as of the date of the taking. See Textron, Inc. v. Wood, 167 Conn. 334, 345, 355 A.2d 307 (1974). There must be a substantial interference with the owner’s property. “The precise dimensions of a ‘substantial interference’ sufficient to amount to a taking in the constitutional sense are not always clear since the concept of substantial interference is not a static one, but one that has developed over the years in response to the changing needs of our society.” Id., 347. There must be an indication that the taking authority has reached a stopping point in the implementation of its plan for the public good.

Once the results of the acts of the authority have made it clear that the property owner is no longer able to use its property as it had before, and the landowner’s capacity to dispose freely of its property has been for all practical purposes arrested, property has been taken in the constitutional sense. Enjoyment and use of the entire property need not be completely destroyed for land to be deemed taken. See United States v. Causby, 328 U.S. 256, 262, 66 S. Ct. 1062, 90 L. Ed. 1206 (1946). There need be only a near total destruction of the land’s prior use and a marked depreciation in value. See id. The test is whether the property no longer has any reasonable and proper use and whether the economic utilization of the land has been, for all practical purposes, destroyed. See Tamm v. Burns, 222 Conn. 280, 284, 610 A.2d 590 (1992).

The plaintiff claims that the acts of the defendant and its failure to complete the redevelopment project within a reasonable amount of time have caused the taking of his property.The plaintiff and the defendant first discussed the use of his property in terms of redevelopment of the area in which it was situated in 1988. During the following nine years, up to the time of trial, the defendant acquired the other ten parcels of land located in that area by eminent domain but did not formally acquire the plaintiffs Squire Street property. The plaintiff, according to the facts found by the trial court, was pressured by the defendant by its levy of a fine against him in 1990 to renovate the Squire Street building by borrowing funds.

Other facts either found by the trial court, or admitted by the defendant in its answer to the plaintiffs complaint, are that the defendant’s officials told the plaintiff that they wanted to acquire Squire Street; that the plaintiff and the defendant met to discuss plans to acquire it beginning in August, 1988; that a redevelopment plan was approved by the city council of Hartford in 1990; that, in 1990, the plaintiff was advised in writing to meet with an official of the defendant and the plaintiffs architect to discuss a rehabilitation project for Squire Street; that, in 1991, the plaintiff obtained a mortgage to rehabilitate Squire Street; that the defendant never implemented its redevelopment plan; that the area surrounding the plaintiffs building has been destroyed; that the character and use of the plaintiffs building has been destroyed; that the plaintiffs property, in the words of the trial court, “now stands by itself, in the midst of the deteriorated and boarded-up buildings owned by the defendant”; and, that, even “if the redevelopment project is completed,” the prospect of the plaintiffs building having “any realistic value in the private market is in fact nonexistent.”

We hold that the defendant’s actions in failing to implement its redevelopment plan for the area in a reasonable amount of time, although not formally abandoning the plan, and in permitting the overall deterioration of the property within the area, amounts to a taking of the plaintiffs property without just compensation. The plaintiff has pleaded and proved an inverse condemnation for which damages are due.

We next turn to the proper measure of damages for the taking. The trial court rendered judgment for the plaintiff in the amount of $278,500, the cost of the reconstruction of his building and the value of the land on which the building stands, and ordered the plaintiff to convey his property to the defendant free and clear of all liens and encumbrances.

Because inverse condemnation is an alternate way in which property is taken when formal condemnation proceedings have not been instituted by a governmental taking authority; see Bauer v. Waste Management of Connecticut, Inc., supra, 234 Conn. 249-50 n.15; it also requires payment to a landowner using the same methodology. The measure of damages governing both should logically be the same, and we therefore look to cases involving both eminent domain and inverse condemnation in our discussion of damages.

“The general rule is that the loss to the owner from the taking, and not its value to the condemnor, is the measure of the damages to be awarded in eminent domain proceedings.” Gray Line Bus Co. v. Greater Bridgeport Transit District, 188 Conn. 417, 427, 449 A.2d 1036 (1982). The rule need not be followed, however, if its application would produce an unfair result. See id., 427-28. The objective of damages is to award “just compensation,” however damages are calculated. In some instances, benefit to the taker can be the value of the property taken if the public authority receives a windfall to the detriment of the landowner. See id., 430. “It is not unheard of for an owner to be faced with a situation where his property, worthless to himself and to others who are not in a position to utilize it in some worthwhile fashion, has substantial value to only one person.” Id., 430.

The loss to the owner, in the usual case, is fair market value, but such is not always the case because the question of what is just compensation is equitable, not legal. See DeLucia v. Burns, 11 Conn. App. 439, 527 A.2d 1234, cert. denied, 205 Conn. 803, 531 A.2d 935 (1987). The proper measure of damages is that amount of money that will put the landowner in as good a position in a pecuniary sense as he would have been in had the property not been taken. See id., 445. That measure of damages may require differing methods of valuation. See Laurel, Inc. v. Commissioner of Transportation, supra, 180 Conn. 37. For example, just compensation might be based on comparable sales, capitalization of income or replacement cost less depreciation or on any formula that puts the plaintiff in the position he would have enjoyed had the taking not occurred. A trier may select the method of valuation most appropriate to the facts of the case in valuing a land interest.

The present property, as found by the trial court, “has no actual economic value now.” The trial court found that even if the redevelopment project is eventually completed, the building will not have any value on the private market. The trial court, therefore, determined just compensation to be the amount of the plaintiffs mortgage notes, which were signed by the plaintiff personally, plus the value of the land.

The trial court stated that if it had determined that inverse condemnation had taken place, the damages would have approximated the $278,500, which the trial court awarded as damages for unjust enrichment, because the replacement cost less depreciation plus land as testified to by the plaintiffs expert real estate appraiser was $288,000. The trier need not calculate damages with mathematical precision but may approximate damages. See Transportation Plaza Associates v. Powers, 203 Conn. 364, 378, 525 A.2d 68 (1987).

A de facto taking, or taking by inverse condemnation, occurs when the state substantially interferes with private property so that the owner’s use is substantially destroyed. It is difficult in cases such as the present one to determine exactly when the taking happened. Given the trial court’s findings, the taking, the time when the unjust enrichment occurred, was complete when the defendant failed to implement the redevelopment plan and allowed the land to deteriorate to the point where it had little value. Such dates are impossible to ascertain.

The defendant argues that if there was an inverse condemnation, there must be a remand to determine the date of the taking and, when that has been established, to determine the dollar amount of just compensation. We do not conclude that there is a necessity for a hearing as to the date of the taking because we have determined that the trial court, in effect, established that a precise date of the taking could not be determined. Deterioration is a gradual process and, because the plan was never formally abandoned, there cannot be one date in time that marked the defendant’s failure to implement its redevelopment plan for the area, unless it is the date of the last taking by eminent domain of property in the redevelopment area. In this particular fact situation, however, it does not matter exactly when the taking occurred because the compensation to the plaintiff is not based on fair market value as of a particular date, but on the plaintiffs loss based on his cost of rehabilitation and his land value.

Whether the measure of damages in this unique fact situation is the loss to the plaintiff based on the moneys spent to rehabilitate the property taken and the cost of the land or is the gain to the defendant, which someday might proceed with its plan to redevelop the area, the dollar amount of just compensation would be the same and was correctly established by the trial court. Since an eminent domain and an inverse condemnation case are for practical purposes alike, the trial court correctly ordered the plaintiff to convey his property to the defendant.

The plaintiff claims that he should have been awarded appraiser’s fees and attorney’s fees, and he argues that General Statutes § 48-17b or § 8-133 should be applied. The defendant argues that § 48-17b applies to inverse condemnation through acts of the state and does not apply to a redevelopment agency, and that § 8-133 does not apply because this case does not arise from a claim pursuant to § 8-132 by a plaintiff aggrieved by a statement of compensation. The issue is whether a state statute applicable to de facto takings by departments of the state is also applicable to redevelopment agencies, or, if not applicable, whether § 8-133, which is applicable to eminent domain cases, should be applied in inverse condemnation cases against a redevelopment agency. If the defendant was acting as an agent of the state, § 48-17b would apply. If the defendant should be treated as though it took the property by eminent domain, rather than by inverse condemnation, § 8-132 would apply. The sums allowed pursuant to the two statutes are very different, with the possibility of a much greater out-of-pocket reimbursement being provided by § 48-17b. We are unaware of any Connecticut case that resolves the issue of whether costs, interest or any fees are due when a taking is deemed to have occurred by inverse condemnation by a redevelopment agency.

The agency in this case is authorized by state legislation to take by eminent domain and was created, pursuant to state legislation, by the city of Hartford. It is possible for a governmental entity to be an agent of the state for some purposes and an agent of a municipality for other purposes. See Purzycki v. Fairfield, supra, 244 Conn. 112. Whether an entity is acting as an agent of the state or of the city is usually a question of fact, depending on the particular acts of the entity and the events surrounding those facts. See Westport Taxi Service, Inc. v. Westport Transit District, supra, 235 Conn. 26.

A redevelopment agency stands in the position of a housing authority of a municipality. See General Statutes § 8-126. In two prior cases, housing authorities have been deemed to be the corporate agencies of the state without the necessity of a factual finding. See Gordon v. Bridgeport Housing Authority, supra, 208 Conn. 186; Austin v. Housing Authority, 143 Conn. 338, 349, 122 A.2d 399 (1956). Although a subsequent case noted, as dicta, that a housing authority is a hybrid organization “bearing many strong aspects of local authority and equally strong aspects of state authority,” the two prior cases were not overruled. See Norwich v. Housing Authority, 216 Conn. 112, 122-23, 579 A.2d 50 (1990).

We follow existing precedent that holds that a redevelopment agency is an agent of the state. We, therefore, hold that § 48-17b applies to this case. The defendant was granted the power of eminent domain but chose not to use it, forcing the plaintiff to initiate its own action. The plaintiff is entitled to the costs and fees as therein provided.

The judgment is affirmed and the case is remanded for further proceedings to determine such sum as will in the opinion of the court reimburse the plaintiff for reasonable costs, disbursements and expenses, including reasonable attorney’s, appraisal and engineering fees, actually incurred, to be added to the amount of the judgment rendered for the plaintiff.

In this opinion the other judges concurred.

       The plaintiff claims that count one of his complaint is sufficient to allege a cause of action for unjust enrichment as well as for inverse condemnation. The defendant argues in its brief that the allegations are insufficient to support a cause of action for unjust enrichment and that during the trial no mention was made of that cause of action. The defendant agrees that the allegations do support a cause of action for inverse condemnation. At oral argument, the defendant stated that the allegations were sufficient to state a cause of action for unjust enrichment. We need not decide the question in view of our conclusion that the plaintiff pleaded and proved an inverse condemnation claim.

       The plaintiffs complaint sought money damages, interest, costs, attorney’s fees and “such other relief as the court deems just and equitable.” The plaintiff did not challenge the judgment as to count one and, therefore, the amount of compensation for his property awarded by the trial court is not involved in his appeal, although it is raised in the defendant’s cross appeal.

       General Statutes § 8-126 provides in relevant part: “The legislative body of any municipality may designate as a redevelopment agency the housing authority of the municipality or the Connecticut Housing Authority, or may create a new redevelopment agency to consist of electors resident therein. ...”

       General Statutes § 8-127 provides in relevant part: “The redevelopment agency may prepare, or cause to be prepared, a redevelopment plan and any redeveloper may submit a redevelopment plan to the redevelopment agency, and such agency shall immediately transmit such plan to the planning agency of the municipality for its study. . . . Such plan and any modifications and extensions thereof shall show the location of proposed redevelopment areas and the general location and extent of use of land for housing, business, industry, communications and transportation, recreation, public buildings and . . . the purpose of redevelopment. . .

       General Statutes § 8-128 provides in relevant part: “Within a reasonable time after its approval of the redevelopment plan as hereinbefore provided, the redevelopment agency may proceed with the acquisition or rental of real property by purchase, lease, exchange or gift. The redevelopment agency may acquire real property by eminent domain with the approval of the legislative body of the municipality and in accordance with the provisions of sections 8-129 to 8-133, inclusive, and this section. . . .”

       General Statutes § 8-137 provides in relevant part: “The redevelopment agency, for the purpose of this chapter, may sell, lease or otherwise transfer for such sums as are agreed upon the whole or any part of the real property within a redevelopment area to the redeveloper or, if the real property is to be used for public purposes, to any appropriate public agency. . . .”

       General Statutes § 8-134 provides in relevant part: “For the purpose of carrying out or administering a redevelopment plan or other functions authorized under this chapter, a municipality, acting by and through its redevelopment agency, is hereby authorized, subject only to the limitations and procedures set forth in this section, to issue from time to time bonds of the municipality which are payable solely from and secured by: (a) A pledge of and lien upon any or all of the income, proceeds, revenues and property of redevelopment projects, including the proceeds of grants, loans, advances or contributions from the federal government, the state or other source, including financial assistance furnished by the municipality or any other public body pursuant to section 8-135; (b) taxes or payments in lieu of taxes, or both, in whole or in part, allocated to and paid into a special fund of the municipality pursuant to the provisions of section 8-134a; or (c) any combination of the methods in subsections (a) and (b) of this section. ..."

       General Statutes § 8-135 provides in relevant part: “For the purpose of carrying out or administering a redevelopment plan or other functions authorized under this chapter, a municipality, acting by and through its redevelopment agency, may accept grants, advances, loans or other financial assistance from the federal government, the state or other source, and may do any and all things necessary or desirable to secure such financial aid. ...”

       See General Statutes §§ 8-127, 8-134 through 8-137.

       General Statutes § 8-132 provides in relevant part: “Any person claiming tobe aggrieved by the statement of compensation filed by the redevelopment agency may, at any time within six months after the same has been filed, apply to the superior court for the .judicial district in which such property is situated, or, if said court is not in session, to any judge thereof, for a review of such statement, of compensation so far as the same affects such applicant, . . .

       The plaintiff does not claim in the present action that because of the confiscation of Park Street, Squire Street was thereby rendered useless for any reasonable and proper purpose; see Wright v. Shugrue, 178 Conn. 710, 713, 425 A.2d 549 (1979); or that the taking of Park Street, resulted in a partial taking of his land, or that he did not receive any severance damages due him for the taking of Park Street only. See Laurel, Inc. v. Commissioner of Transportation, 180 Conn. 11, 36, 428 A.2d 789 (1980).

       The defendant did not plead by way of special defense, nor did it make any argument, that sovereign or governmental immunity would bar these tort claims. The defendant does not claim that it is the agent of a municipality or of the state, which could bar the plaintiffs claims for tortious acts, nor does the plaintiff allege that the defendant is an autonomous corporate entity authorized by the state and created by the city, but the agent of neither, which could allow suit against the defendant. See Purzycki v. Fairfield, 244 Conn. 101, 107, 708 A.2d 937 (1998); Williams v. New Haven, 243 Conn. 763, 766, 707 A.2d 1251 (1998): Westport Taxi Service, Inc. v. Westport Transit District., 235 Conn. 1, 26, 664 A.2d 719 (1995); Norwich v. Housing Authority, 216 Conn. 112, 123, 579 A.2d 50 (1990); Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 167, 544 A.2d 1185 (1988); Housing Authority v. Fetzik, 110 R.I. 26, 32-33, 289 A.2d 658 (1972).

       The defendant does not argue that the plaintiffs misrepresentation claims with respect to Park Street may be barred by the plaintiffs acceptance of the statement of compensation for the condemnation of that property. See Russo v. East Hartford, 4 Conn. App. 271, 273, 493 A.2d 914 (1985). The defendant also does not argue that the judgment for the plaintiff on count one for inverse condemnation would preclude a judgment for the plaintiff on either count two or count three because the plaintiff would then be recovering twice for the same damage. Haynes v. Yale-New Haven Hospital, 243 Conn. 17, 22 n.6, 699 A.2d 964 (1997).

       At the time the plaintiff obtained financing for the renovation of Squire Street, on or about May 17, 1991, Park Street had not yet been acquired by eminent domain.

       The defendant malees no claim nor has it pleaded a special defense of sovereign or governmental immunity, alleging that such immunity would bar the equitable remedy of unjust enrichment, and we do not consider the issue.

       General Statutes § 48-17b provides: “The state court rendering a judgment for the plaintiff in an inverse condemnation proceeding brought against the slate by the owner of real properly, or the Attorney General effecting a settlement of any such proceeding, shall determine and award or allow to such plaintiff, as a part of such judgment or settlement, such sum as will in the opinion of the court or the Attorney General reimburse such plaintiff for his reasonable costs, disbursements and expenses, including reasonable attorney, appraisal and engineering fees, actually incurred because of such proceeding.”

       General Statutes § 8-133 provides: “If, as the result of any review under the provisions of section 8-132, the applicant obtains an award from the court greater than the amount determined as compensation by the redevelopment agency, costs of court, including such appraisal fees as the court determines to be reasonable, shall be awarded to the applicant and taxed against the redevelopment agency in addition to the amount fixed by the judgment.”


source: Caselaw Access Project

author: O’CONNELL, C. J.

license: Public Domain

text:
    JANE DOE v. HARTFORD ROMAN CATHOLIC DIOCESAN CORPORATION ET AL.
    O’Connell, C. J., and Foü, Lavery, Landau and Hennessy, Js.
    Argued September 10
    officially released December 15, 1998

      William F. Gallagher, with whom was Cynthia C. Bott, in support of the petition.

      John W. Sitarz, with whom was Christopher L. Jefford, in opposition.

      John H. Grasso, in opposition.
   Opinion

O’CONNELL, C. J.

Before the court at this time is the plaintiffs petition for expedited review of the trial court’s order granting motions sealing part of the file and for protective orders in the underlying case. See General Statutes (Rev. to 1997) § 51-164x, as amended by Public Acts 1997, No. 97-178, and Practice Book § 11-20 (d).

The plaintiff, an adult female, alleges that when she was a minor she was abused by the defendant Peter Ziska. In addition to Ziska, the Hartford Roman Catholic Diocese, the Church of the Holy Spirit and John T. O’Connor, who trained and supervised Ziska, are also named as defendants.

The plaintiff alleges that Ziska negligently or intentionally inflicted emotional distress on her, recklessly sexually abused her, breached a fiduciary duty and committed clergy malpractice. She alleges that the remaining defendants are responsible for her injuries on theories of negligent supervision and respondeat superior.

During discovery, the plaintiff served notice of the taking of a deposition of O’Connor, Ziska’s former supervisor. The defendants filed a motion for a protective order pursuant to Practice Book § 13-5, seeking an order prohibiting disclosure to the media or the public of information that the plaintiff might obtain through discovery.

Following argument, the trial court entered the following order: “The motions for protective order are granted, except as to the complaint and responsive pleadings. The complaint [and] the responsive pleadings are not sealed. The remainder of the information, counsel are ordered not to disseminate and distribute or comment upon in public. If there is some specific reason that counsel need to make a disclosure, a motion can be filed so that can be obtained.” The court also prohibited the plaintiff or her counsel from disclosing any information obtained in discovery to other similarly situated plaintiffs in other actions and limited disclosure of such information to witnesses in the underlying action unless the witnesses also agreed not to disclose the information to others. That order combines aspects of a sealing order pursuant to Practice Book § 11-20 (b) and a protective order pursuant to Practice Book § 13-5. The two aspects will be examined separately starting with the sealing orders.

I

Practice Book § 11-20 (b) permits a trial court to order that files, affidavits, documents or other materials on file with the court be sealed or their disclosure limited if the court concludes that such order is “necessary to preserve an interest which is determined to override the public’s interest in attending such proceeding or in viewing such materials. Any such order shall be no broader than necessary to protect such overriding interest.” (Emphasis added.)

Expedited review of such orders is provided by General Statutes (Rev. to 1997) § 51-164x (c), as amended by Public Acts 1997, No. 97-178, and Practice Book § 11-20 (d), which permit any person affected by a court order that seals or limits the disclosure of any material on file to petition this court for review within seventy-two hours of the entry of the order. Practice Book § 11-20 (c) mandates that the trial court articulate on the record in open court the overriding interest being protected and specify the findings underlying such order. To make findings, it is necessary that the court conduct an evidentiary hearing; State v. Manfredi, 4 Conn. App. 247, 493 A.2d 242 (1985); or that a stipulation of facts be filed with the court. Because there was neither an evidentiary hearing nor a stipulation in the present case, the trial court had no basis on which it could make the necessary findings. Thus, the trial court did not make the requisite findings. Furthermore, the court did not articulate on the record in open court the overriding interest being protected.

Because the trial court failed to comply with Practice Book § 11-20 (c), we vacate that portion of the order purported to seal the trial court file except for the complaint and responsive pleadings.

II

Insofar as the trial court’s order purports to limit the plaintiffs exchange of information with similarly situated plaintiffs in other cases or to bar public comment, it constitutes a protective order issued under the authority of Practice Book § 13-5. General Statutes (Rev. to 1997) § 51-164x, as amended by Public Acts 1997, No. 97-178, and Practice Book § 11-20 (d), do not provide expedited review of a protective order issued pursuant to Practice Book § 13-5. Thus, we lack jurisdiction to consider it.

That part of the trial court’s order sealing a portion of the trial court file is vacated, and the remainder of the petition for expedited review of the protective order is dismissed for lack of jurisdiction.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1997) § 51-164x, as amended by Public Acts 1997, No. 97-178, provides in relevant part: “(c) Any person affected by a court order that seals or limits the disclosure of any files, affidavits, documents or other material on file with the court or filed in connection with a court proceeding . . . shall have the right to the review of such order by the filing of a petition for review with the Appellate Court within seventy-two hours from the issuance of such court order.”

       Practice Book §11-20 (d) provides in relevant part: “[A]ny person affected by an order of a judicial authority issued pursuant to subsection (b) which concerns the public’s right to access any portion of a proceeding shall have the right to appeal the order within seventy-two hours of its issuance by filing a petition for review with the appellate court pursuant to the appellate court rules.”

       The trial court granted a motion to strike part of the complaint relating to respondeat superior. Doe v. Hartford Roman Catholic Diocesan Corp., 45 Conn. Sup. 388, 390-95, 716 A.2d 960 (1998).

       Practice Book § 13-5 provides: “Upon motion by a party from whom discovery is sought, and for good cause shown, the judicial authority may make any order which justice requires to protect a party from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: (1) that the discovery not be had; (2) that the discovery may be had only on specified terms and conditions, including a designation of the time or place; (3) that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery; (4) that certain matters not be inquired into, or that the scope of the discovery be limited to certain matters; (5) that discovery be conducted with no one present except persons designated by the judicial authority; (6) that a deposition after being sealed be opened only by order of the judicial authority; (7) that a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way; (8) that the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the judicial authority.”

       Practice Book § 11-20 (b) provides: “Upon motion of any party, or upon its own motion, the judicial authority may order that the public be excluded from any portion of a proceeding and may order that files, affidavits, documents or other materials on file with the court or filed in connection with a court proceeding be sealed or their disclosure limited if the judicial authority concludes that such order is necessary to preserve an interest which is determined to override the public’s interest in attending such proceeding or in viewing such materials. Any such order shall be no broader than necessary to protect such overriding interest.”

       Practice Book § 11-20 (c) provides in relevant part: “In connection with any order issued pursuant to subsection (b) of this section, the judicial authority shall, on the record in open court, articulate the overriding interest being protected and shall specify its findings underlying such order. The time and date of anjr such order shall be entered by the court clerk in the court file together with such order. ..."

       See footnote 4.


author: SULLIVAN, J. HENNESSY, J.,

text:
    CAROLYN READER v. JON CASSARINO
    (AC 17289)
    Foti, Hennessy and Sullivan, Js.

      Argued September 14
    officially released December 22, 1998

      David S. Stowe, with whom was Richard Tenenbaum, for the appellant (plaintiff).

      Clifton E. Thompson, for the appellee (defendant).
   Opinion

SULLIVAN, J.

The plaintiff, Carolyn Reader, appeals from the judgment rendered awarding her damages in the amount of $1. On appeal, the plaintiff claims that the trial court improperly (1) failed to comply with General Statutes § 52-231 and Practice Book §§ 327,334 (a) and 4059, now §§ 17-5, 6-1 and 64-1, in the issuance of its judgment, (2) awarded nominal damages in the amount of $1, (3) found that the defendant was not liable under the Connecticut Unfair Trade Practices Act (CUTPA) and (4) found that the defendant did not violate the unlawful entry statutes. General Statutes § 47a-16 et seq. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the disposition of this appeal. The plaintiff leased a three bedroom apartment from the defendant landlord for several years. During that time, the defendant periodically helped the plaintiff by moving her air conditioner and other heavy items. In February, 1991, the defendant, acting on a reasonable assumption that the plaintiff intended to vacate the apartment, moved the plaintiffs furniture and belongings from the third floor of the apartment to the second floor. The defendant also installed a door in front of the stairwell to the third floor thereby restricting the plaintiffs access to the third floor. For the next six months, the plaintiff did not pay rent, causing a total loss to the defendant of $3900. Additionally, the defendant paid the plaintiff the sum of $2000 to be credited to any damage award.

The plaintiff filed a complaint against the defendant alleging that he had violated General Statutes § 47a-43, CUTPA and General Statutes 47a-16 et seq. The trial court articulated that it found for the plaintiff under the entry and detainer statute and found for the defendant as to the claimed violations of the unlawful entry statute and CUTPA. The trial court rendered judgment for the plaintiff in the amount of $1. This appeal followed.

I

The plaintiff first claims that the trial court failed to articulate its factual findings and legal conclusions, in violation of General Statutes § 52-231 and Practice Book § 327, now § 17-5. Sections 52-231 and 17-5 require that each court “keep a record of its proceedings and cause the facts on which it found its final judgments and decrees to appear on the record; and any such finding if requested by any party shall specially set forth such facts.” Further, the plaintiff argues that the identical requirements of Practice Book § 334A, now § 6-1, and § 4059, now § 64-1, were not met.

We recognize that “ [w]hen a trial court fails to answer a motion for articulation or does so incompletely, the appellant should seek a further articulation.” Blakeslee Arpaia Chapman, Inc. v. El Constructors, Inc., 239 Conn. 708, 737, 687 A.2d 506 (1997). “When a party is dissatisfied with the trial court’s response to a motion for articulation, he [or she] may, and indeed under appropriate circumstances he [or she] must, seek immediate appeal of the rectification memorandum to this court via a motion for review. . . . Buchetto v. Haggquist, 17 Conn. App. 544, 549, 554 A.2d 763, cert. denied, 211 Conn. 808, 559 A.2d 1141 (1989); see also Practice Book § 4054 [now § 66-7].” (Internal quotation marks omitted.) Viets v. Viets, 39 Conn. App. 610, 613, 666 A.2d 434 (1995).

Here, the plaintiff failed to avail herself of the procedural vehicles available to remedy any deficiencies in the record. The plaintiff did not request a further articulation pursuant to Practice Book § 4051, now § 66-5, after the trial court issued its articulation. Also, the plaintiff did not attempt to remedy any deficiencies in the record by filing a motion for a special finding, the purpose of which is to put on the record those facts that are the basis for the judgment. See Berry v. Hartford National Bank & Trust Co., 125 Conn. 615, 622, 7 A.2d 847 (1939). Further, the plaintiff did not file a motion for review of the trial court’s articulation with this court. Practice Book § 66-7, formerly § 4054. The burden is on the plaintiff to provide this court with an adequate record as to the issues raised by the plaintiff. Practice Book § 61-10.

The plaintiff urges us to address on direct appeal her concerns that should have been resolved through the use of the proper rules of practice. This we decline to do.

II

The plaintiff next claims that the trial court improperly awarded nominal damages under General Statutes § 47a-43, failed to award damages under CUTPA and failed to award damages under General Statutes § 47a-16 et seq.

We recognize that “[t]he trial judge has a broad legal discretion and his action will not be disturbed unless there is a clear abuse.” Buckman v. People Express, Inc., 205 Conn. 166, 175, 530 A.2d 596 (1987). “As a general rule, the determination of damages involves a question of fact that will not be overturned unless it is clearly erroneous.” Gerber & Hurley, Inc. v. CCC Corp., 36 Conn. App. 539, 545, 651 A.2d 1302 (1995), citing Beckman v. Jalich Homes, Inc., 190 Conn. 299, 309-10, 460 A.2d 488 (1983). Thus, we give substantial deference to the trial judge on the issue of damages.

A

We first address the plaintiffs challenge to the trial court’s award of nominal damages for the defendant’s violation of General Statutes § 47a-43, the entry and detainer statute. In this case, the trial court found that the plaintiff failed to offer any evidence of actual or emotional damages as a result of the defendant’s actions and therefore awarded nominal damages in the amount of $1.

“On appeal, it is the function of this court to determine whether the decision of the trial court is clearly erroneous.” (Internal quotation marks omitted.) Barbara Weisman, Trustee v. Kaspar, 233 Conn. 531, 541, 661 A.2d 530 (1995). “The appellant has the burden of establishing that there has been an erroneous ruling which was probably harmful to him.” (Internal quotation marks omitted.) Blancato v. Randino, 33 Conn. App. 44, 49, 632 A.2d 1144, cert. denied, 228 Conn. 916, 636 A.2d 846 (1993).

After a review of the record and briefs, and after hearing from the parties at oral argument, we conclude that the plaintiff has failed to make a substantial showing that the trial court findings as to damages were clearly erroneous. Thus, we conclude that the plaintiffs challenge to the damages award for the defendant’s violation of General Statutes § 47a-43 is without merit.

B

The plaintiff also claims that the trial court improperly held that the defendant did not violate CUTPA. We disagree.

Although the plaintiff argues that the trial court incorrectly held that her CUTPA claim could not be brought on the basis of an isolated incident, we need not address that issue here, as the plaintiff does not have a valid CUTPA claim regardless of this issue. CUTPA provides that “[n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.” General Statutes § 42-110b (a). We recognize however, that CUTPA is limited to “[a]ny person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a method, act or practice prohibited by section 42-110b . . . .” General Statutes § 42-1 lOg (a). “The plain language of § 42-1 lOg (a) provides one limitation by requiring that the plaintiff suffer an ascertainable loss that was caused by the alleged unfair trade practice.” Haesche v. Kissner, 229 Conn. 213, 223-24, 640 A.2d 89 (1994).

“A party seeking to recover damages under CUTPA must meet two threshold requirements. First, he [or she] must establish that the conduct at issue constitutes an unfair or deceptive trade practice. . . . Second, he must present evidence providing the court with a basis for a reasonable estimate of the damages suffered.” (Internal quotation marks omitted.) Jacques All Trades Corp. v. Brown, 42 Conn. App. 124, 130, 679 A.2d 27 (1996), aff'd, 240 Conn. 654, 692 A.2d 809 (1997). The second requirement for a valid CUTPA claim does not necessitate that the actual amount of ascertainable loss be proven. See Beverly Hills Concepts, Inc. v. Schatz & Schatz, Ribicoff & Kotkin, 247 Conn. 48, 78-79, 717 A.2d 724 (1998); Hinchliffe v. American Motors Corp., 184 Conn. 607, 614, 440 A.2d 810 (1981), on appeal after remand, 192 Conn. 252, 470 A.2d 1216 (1984).

In Beverly Hills Concepts, Inc., our Supreme Court found that, although the amount of damages was not proven to a reasonable certainty, that alone did not dispose of the plaintiffs CUTPA claim. The plaintiff in Beverly Hills Concepts, Inc., failed to prove satisfactorily her damages for lost profits. The court found, however, that that alone should not defeat the plaintiffs CUTPA claim; in that case, the CUTPA claim was dismissed on other grounds.

Similarly, in Hinchliffe, our Supreme Court found that the consumer’s loss in the case was “ascertainable if it is measurable even though the precise amount of the loss is not known.” Hinchliffe v. American Motors Corp., supra, 184 Conn. 614. The court in Hinchliffe focused on the CUTPA language requiring an “ascertainable loss” and found that it does not necessitate proof of a specific amount of damages. Thus, although the court dismissed the CUTPA claim on other grounds, the Hinchliffe court found the plaintiffs’ failure to calculate precisely an amount of loss did not preclude their CUTPA claim.

In both Beverly Hills Concepts, Inc., and Hinchliffe, our Supreme Court did not allow the failure to prove the precise amount of damages to thwart the plaintiffs CUTPA claim; however, those cases are not dispositive of the present case. “While CUTPA damages need not be proven with absolute precision, the failure to present any evidence concerning the nature and extent of the injury sustained precludes recovery under the statute.” (Emphasis added.) A. Secondino & Son, Inc. v. LoRicco, 215 Conn. 336, 344, 576 A.2d 464 (1990).

In the present case, the trial court articulated that the plaintiff “failed to present any evidence of actual damages as a result of the concededly illegal entry and detainer.” (Emphasis added.) There is insufficient evidence, in this case, to find an ascertainable loss. As no ascertainable loss can be found, the plaintiff is precluded from recovery under the CUTPA statute. We therefore find that regardless of whether a CUTPA claim can be based on a single incident, the plaintiff, as a matter of law, cannot prevail.

C

The plaintiff next claims that the trial court failed to find a violation of General Statutes § 47a-16 et seq. We decline to address that issue.

“On appeal, it is the function of this court to determine whether the decision of the trial court is clearly erroneous. . . . This involves a two part function: where the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision; where the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous.” (Internal quotation marks omitted.) Barbara Weisman, Trustee v. Kaspar, supra, 233 Conn. 541.

In the present case, the trial court stated in its articulation, “judgment for the defendant on count 3.” The record does not provide any additional information concerning the factual basis for the decision. We are therefore unable to determine whether the factual basis for the court’s decision is clearly erroneous. Accordingly, we decline to address the plaintiffs claim.

The judgment is affirmed.

In this opinion FOTI, J., concurred.

HENNESSY, J.,

dissenting. I respectfully dissent from the majority opinion with regard to the plaintiffs claim under the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., because I conclude that the trial court improperly found that an isolated incident could not be the predicate for a violation of CUTPA and that the evidence in the record is sufficient to show that the plaintiff suffered an ascertainable loss as a result of the defendant’s violation of General Statutes § 47a-43 (a) (3) and (4).

Although the majority does not address the issue of whether an isolated incident can be the predicate for a violation of CUTPA, the trial court rendered judgment for the defendant on the CUTPA claim because it found that an isolated incident could not be the predicate for a violation of CUTPA. Since the plaintiff raised this issue on appeal, I believe it is appropriate to address whether an isolated incident can be the predicate for a violation of CUTPA. “Because statutory interpretation is a question of law, our review is de novo.” Andover Ltd. Partnership I v. Board of Tax Review, 232 Conn. 392, 396, 655 A.2d 759 (1995).

“CUTPA was designed to protect the public from unfair practices, and whether a practice is unfair depends upon the finding of a violation of an identifiable public policy. ... [A] violation of CUTPA can be found . . . where the defendant’s actions violate the public policy found in two subdivisions [(3) and (4)] of General Statutes § 47a-43 (a). . . . These provisions of § 47a-43 uphold the long-standing public policy against proceeding by way of self-help remedies when evicting a tenant .... [T]he subjective good faith of one who has in fact performed an unfair or deceptive act is not a defense to a CUTPA violation . . . .” (Citations omitted; internal quotation marks omitted.) Daddona v. Liberty Mobile Home Sales, Inc., 209 Conn. 243, 257-58, 550 A.2d 1061 (1988).

Therefore, it is the violation of the public policy underlying § 47a-43 (a) (3) and (4), and not the number of incidents, that creates the factual predicate for a claim of a CUTPA violation. See id. (violation of CUTPA existed where defendant dismantled plaintiff’s mobile home rather than evict her); see also Gebbie v. Cadle Co., 49 Conn. App. 265, 278-80, 714 A.2d 678 (1998) (affirming trial court’s finding that CUTPA violation existed where defendant acknowledged that it was bound by loan restructure agreement but refused to honor it). In this case, the defendant conceded, and the trial court found, that there was an illegal entry and detainer. I conclude that the trial court improperly found that an isolated incident could not be the predicate for a violation of CUTPA.

Because the majority concluded that the plaintiff did not have a valid CUTPA claim in that “[tjhere is insufficient evidence, in this case, to find an ascertainable loss,” I will address this issue. “General Statutes § 42-llOg (a) affords a cause of action to [a]ny person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a method, act or practice prohibited by section 42-110b . . . .” (Internal quotation marks omitted.) Beverly Hills Concepts, Inc. v. Schatz & Schatz, Ribicoff & Kotkin, 247 Conn. 48, 78-79, 717 A.2d 724 (1998).

The trial court found that “[t]he plaintiff . . . failed to present any evidence of actual damages as a result of the concededly illegal entry and detainer.” (Emphasis added.) On the basis of that factual finding, the majority concludes that there is insufficient evidence to find an ascertainable loss. Under CUTPA, however, “[l]oss has a broader meaning than the term damage.” (Internal quotation marks omitted.) Id., 79. Our Supreme Court has held that to satisfy the ascertainable loss requirement under CUTPA, “there is no need [for the plaintiff] to allege or prove the amount of the ascertainable loss. Hinchliffe v. American Motors Corp., 184 Conn. 607, 614, 440 A.2d 810 (1981), on appeal after remand, 192 Conn. 252, 470 A.2d 1216 (1984).” (Internal quotation marks omitted.) Beverly Hills Concepts, Inc. v. Schatz & Schatz, Ribicoff & Kotkin, supra, 247 Conn. 79. Therefore, the plaintiff must prove only that an ascertainable loss exists. See id. (holding that “plaintiffs failure adequately to prove damages . . . does not dispose of the CUTPA claim”).

“A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Poulos v. Pfizer, Inc., 244 Conn. 598, 616, 711 A.2d 688 (1998). An examination of the record shows that the plaintiff proved that she rented an apartment from the defendant beginning in June, 1983. The apartment consisted of a bathroom, living room, kitchen and small bedroom on the second floor, and a master bedroom, bathroom and two small bedrooms on the third floor. On February 24, 1991, the plaintiff returned to her apartment to find that the defendant had entered her apartment and had moved the furniture from the third floor to the second floor. In addition, the defendant moved a door in the stairway leading from the second floor to the third floor, which prevented the plaintiff from accessing the third floor of her apartment. That situation remained until April 13, 1991, when the trial court ordered the defendant to move the furniture back. The defendant admitted that he moved the door to deny the plaintiff access to the third floor of her apartment.1 believe that this evidence is sufficient to show that the plaintiff had an ascertainable loss of her leasehold.

Since I believe the trial court improperly found that the defendant was not liable under CUTPA, I would remand the case to the trial court for a hearing on damages under CUTPA.

       General Statutes 8 42-110a et seq. CUTPA provides a cause of action based on “unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.” General Statutes § 42-110b (a).

       General Statutes § 47a-16 provides: “(a) A tenant shall not unreasonably withhold consent to the landlord to enter into the dwelling unit in order to inspect the premises, make necessary or agreed to repairs, alterations or improvements, supply necessary or agreed to services or exhibit the dwelling unit to prospective or actual purchasers, mortgagees, tenants, workmen or contractors.
      “(b) A landlord may enter the dwelling unit without consent of the tenant in case of emergency.
      “(c) A landlord shall not abuse the right of entry or use such right of entry to harass the tenant. The landlord shall give the tenant reasonable written or oral notice of his intent to enter and may enter only at reasonable times, except in case of emergency.
      “(d) A landlord may not enter the dwelling unit without the consent of the tenant except (1) in case of emergency, (2) as permitted by section 47a-16a, (3) pursuant to a court order, or (4) if the tenant has abandoned or surrendered the premises.”

       The trial court made no finding as to any damages suffered as the result of the defendant’s placement of a door blocking access to the third floor.

       The entry and detainer statute, General Statutes § 47a-43 (a) provides in relevant part: “When any person ... (3) enters into any land, tenement or dwelling unit and causes damage to the premises or damage to or removal of or detention of the personal property of the possessor, or (4) when the party put out of possession would be required to cause damage to the premises or commit a breach of the peace in order to regain possession, the party thus ejected, held out of possession, or suffering damage may exhibit his complaint to any judge of the Superior Court.

       Practice Book §§ 6-1 (a) and 64-1 provide in relevant part that “in judgments in trials to the court in civil and criminal matters . . . the [court] shall, either orally or in writing, state its decision on the issues in the matter. The [court] shall include in its decision its conclusion as to each claim of law raised by the parties and the factual basis therefor. . . .”

       Practice Book § 66-5 provides in relevant part: “A motion for further articulation may be filed by any party within twenty days after issuance of notice of the filing of an articulation by the trial judge. . . .”

       General Statutes § 52-226 provides in relevant part: “In any trial to a court, except a trial at a small claims session, the court shall find, upon written motion of either party made within fourteen days after the entry of judgment, the facts upon which its judgment is founded, and malte the finding a part of the record.”

       Practice Book § 66-7 provides in relevant part: “Any party aggrieved by the action of the trial judge as regards rectification of the appeal or articulation under Section 66-5 may, within ten days of the issuance of notice of the order sought to be reviewed, make a written motion for review to the court, to be filed with the appellate clerk, and the court may, upon such a motion, direct any action it deems proper. . . .”

       Practice Book § 61-10 provides in relevant part: “It is the responsibility of the appellant to provide an adequate record for review. The appellant shall determine whether the entire trial court record is complete, correct and otherwise perfected for presentation on appeal. . .

       Because the trial court held that a CUTPA claim could not be based on a single incident, the trial court did not make a factual finding or conclusion as to whether the plaintiff satisfied the ascertainable loss requirement under CUTPA. In addition, the ascertainable loss issue was not raised or briefed by the parties. “On appeal, it is the function of this court to determine whether the decision of the trial court is clearly erroneous.” Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221, 435 A.2d 24 (1980). “We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached. Rather, we focus on the conclusion of the trial court, as well as the method by which it arrived at that conclusion, to determine whether it is legally correct and factually supported.” Id., 222. Therefore, I believe that it is inappropriate for this court to review this issue on appeal. Since the majority does address this issue, and I disagree that there is insufficient evidence, in this case, to find an ascertainable loss, I address this issue.

       The transcript from the April 29, 1994 hearing reveals the following testimony by the plaintiff on direct examination:
      “Q. [W]hen you came home that evening and found this situation, could you have gone up to the third floor?
      * ** *
      “A. No, I would not have been able to enter because the doorway had been changed.
      “Q. And . . . how had it been changed?
      “A. Because the door had been removed from the north side of the stairs to the south side.
      “Q. Okay, and let me ask you, did you give him permission to do this?
      “A. I did not.”

       The transcript from the April 29, 1994 hearing reveals the following testimony by the defendant on cross-examination:
      “Q. Ms. Reader has testified that she came home on February 24, 1991, and found numerous articles of furniture and clothing from the third floor moved to the second floor, did you do that?
      “A. Yes, I did.
      “Q. And she also testified that a door was moved, did you do that?
      “A. Yes, I did.”


author: PER CURIAM.

text:
    THOMAS MARRA v. COMMISSIONER OF CORRECTION
    (AC 17631)
    O’Connell, C. J., and Foti and Hennessy, Js.
    Argued October 27
    officially released December 22, 1998

      Raymond J. Rigat, special public defender, for the appellant (petitioner).

      Richard F. Jacobson, supervisory assistant state’s attorney, for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner was convicted, after a jury trial, of one count each of the crimes of conspiracy to commit kidnapping, accessory to kidnapping in the first degree and arson in the second degree, and two counts each of the crimes of attempted kidnapping in the first degree and larceny in the second degree. The petitioner appealed from his conviction, and the Supreme Court affirmed the judgment of the trial court. State v. Marra, 215 Conn. 716, 579 A.2d 9 (1990). The petitioner thereafter filed a petition for a writ of habeas corpus which, after a hearing, was dismissed by the habeas court. The petitioner then filed a request for certification to appeal to this court, which was denied. This appeal followed.

On appeal, the petitioner claims that the habeas court abused its discretion in denying his petition for certification to appeal in that it improperly concluded that the petitioner was not denied the effective assistance of both trial and appellate counsel. The petitioner claims that his trial counsel rendered ineffective assistance by failing (1) to prepare the petitioner adequately to testify at trial, (2) to explain the meaning and consequences of giving up the right to remain silent at trial, (3) to conduct a proper investigation, (4) to subpoena certain psychiatric and psychological records of a witness, (5) to move for a mistrial or make an appropriate motion regarding unfair publicity, (6) to object to the presence of a juror who purportedly had a conflict of interest and (7) to disclose a conflict of interest that trial counsel had. The petitioner additionally claims that his appellate counsel was ineffective in failing to prepare the record on appeal to include certain psychiatric and psychological records of a witness, and in failing to brief and argue a suppression issue dealing with statements made by the petitioner during a polygraph examination.

“Faced with a habeas court’s denial of a petition for certification to appeal, a petitioner can obtain appellate review of the dismissal of his petition for habeas corpus only by satisfying the two-pronged test enunciated by our Supreme Court in Simms v. Warden, 229 Conn. 178, 640 A.2d 601 (1994), and adopted in Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). First, he must demonstrate that the denial of his petition for certification constituted an abuse of discretion. Id. Second, if the petitioner can show an abuse of discretion, he must then prove that the decision of the habeas court should be reversed on its merits. Id.

“To prove an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further. . . . Id., 616, quoting Lozada v. Deeds, 498 U.S. 430, 432, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991).” (Emphasis in original; internal quotation marks omitted.) Tatem v. Commissioner of Correction, 39 Conn. App. 813, 815-16, 667 A.2d 1295 (1995), cert. denied, 236 Conn. 904, 670 A.2d 1305 (1996).

Our review of the record and briefs leads us to conclude that the habeas court had before it sufficient evidence to find as it did and that it did not abuse its discretion in denying the petitioner’s petition for certification to appeal.

I

The petitioner first asserts that the habeas court improperly determined that he was not denied effective assistance of trial counsel. We disagree.

The petitioner’s first claim of ineffective assistance of trial counsel is based on his attorney’s purported failure to prepare him properly to testify at trial. The habeas court, in dealing with that claim, found credible trial counsel’s testimony that he had represented the petitioner for a substantial period of time, and that the petitioner was not a novice to the criminal system. Additionally, the habeas court found that trial counsel had reviewed with the petitioner the information and issues that might come up during the course of the trial. On the basis of the “substantial amount of time that [the petitioner and his attorney] spent together in preparation for [the] trial,” the habeas court determined that the petitioner was, in fact, adequately prepared to testify at trial.

The petitioner’s second claim of ineffective assistance of trial counsel stems from his attorney’s purported failure to explain properly the meaning and consequences of giving up the right to remain silent at trial. The habeas court found, however, that the petitioner and his counsel had spent substantial time and effort discussing the consequences of giving up the right to remain silent. The habeas court concluded that no probative evidence was submitted to demonstrate that the petitioner was unaware of either the meaning or the consequences of giving up his constitutional right to remain silent at trial.

In dealing with the third issue raised, the habeas court found no evidence that trial counsel failed to conduct a proper investigation. In fact, the habeas court found “quite the contrary” to be true. On this issue, the habeas court noted that there were “hours upon hours of meetings” and that trial counsel had reviewed information concerning the petitioner’s case.

Additionally, as to trial counsel’s purported failure to subpoena certain psychiatric and psychological records of a witness, the habeas court found that there was no prejudice. The habeas court found that since the records were never presented to the trial court, and since that court had no opportunity to examine them, no significance could be attached to trial counsel’s failure to obtain them. The habeas court, moreover, found no evidence that trial counsel could have obtained the records in the exercise of reasonable diligence.

With regard to the petitioner’s unfair trial claim, the habeas court concluded that the petitioner had not received an unfair trial due to publicity, which occurred either before, or during, his trial. The habeas court found that the record was “essentially bereft of any evidence in support of that claim.” The habeas court noted that while there may have been some “notoriety” with respect to the petitioner’s case, it did not necessarily follow that the pretrial publicity was unfair “to the point of denying [the petitioner] a fair trial.” Pretrial publicity, “even if pervasive and concentrated, cannot be regarded as leading automatically and in every kind of criminal case to an unfair trial.” (Emphasis added.) Nebraska Press Assn. v. Stuart, 427 U.S. 539, 565, 96 S. Ct. 2791, 49 L. Ed. 2d 683 (1976); State v. Figueroa, 22 Conn. App. 73, 78, 576 A.2d 553, cert. denied. 215 Conn. 814, 576 A.2d 544 (1990).

Finally, as to a possible conflict of interest of a juror, or of trial counsel himself, the habeas court found that no probative evidence was presented to support either claim.

II

The petitioner next asserts that the habeas court improperly determined that he was not denied effective assistance of appellate counsel. We disagree.

In reviewing this claim, the habeas court found that no prejudice had been demonstrated by appellate counsel’s purported failure to include in the appellate record psychiatric or psychological records. The habeas court also concluded that appellate counsel’s tactical decision not to include and brief a suppression issue, which he determined to be unworthy of inclusion, was not “outside the reasonable bounds of strategic decision-making which must be accorded both trial and appellate counsel.”

After a review of the record and briefs, we conclude that the habeas court had before it sufficient evidence to find as it did and that it did not abuse its discretion in denying the petition for certification to appeal. The petitioner has failed to sustain his burden of persuasion that the denial of certification to appeal was a clear abuse of the habeas court’s discretion or that an injustice has been done. See Simms v. Warden, supra, 230 Conn. 612; Simms v. Warden, supra, 229 Conn. 189; Milardo v. Commissioner of Correction, 41 Conn. App. 749, 677 A.2d 24, cert. denied, 239 Conn. 907, 682 A.2d 1004 (1996); Walker v. Commissioner of Correction, 38 Conn. App. 99, 659 A.2d 195, cert. denied, 234 Conn. 920, 661 A.2d 100 (1995).

The appeal is dismissed.

       See part I of this opinion.

       The petitioner also claimed before the habeas court that he was denied a fair trial by the state’s attorney’s deliberate withholding of exculpatory evidence. Our review of the record leads us to conclude, however, that the habeas court properly determined that the petitioner failed to show that the evidence was exculpatory or that the withholding of this evidence affected the fairness of petitioner’s trial. See State v. Esposito, 235 Conn. 802, 819-20, 670 A.2d 301 (1996) (noting that “ ‘the Constitution is not violated every time the government fails or chooses not to disclose evidence that might prove helpful to the defense’ ”).


text:
    SUSAN CHARBONNEAU v. DAVID CHARBONNEAU, SR.
    (AC 17885)
    O’Connell, C. J., and Foti and Dupont, Js.
    Submitted on briefs October 29
    officially released December 22, 1998

      Claudia S. Weiss filed a brief for the appellant (defendant).

      Ralph U. Bergman filed a brief for the appellee (plaintiff).
   Opinion

PER CURIAM.

The sole issue in this appeal is whether the trial court improperly denied the defendant’s motion to open a judgment rendered after the defendant was defaulted for failing to appear. We conclude that it did not and affirm the judgment of the trial court.

On July 18, 1997, a default judgment was rendered in this marital dissolution action dissolving the marriage of the plaintiff and defendant, awarding $1 per year in alimony to the plaintiff and ordering the marital home transferred to the plaintiff by judicial decree. The trial court also issued a restraining order against the defendant. On September 17, 1997, pursuant to General Statutes § 52-212, the defendant filed a motion to open the judgment.

The defendant’s claim before the trial court was that he was not served process and that the sheriff had, instead, served the wrong person. Following a hearing, the trial court found that although the defendant was not actually served at his usual place of abode, a neighbor had delivered a copy of the writ, summons and complaint to him after the neighbor had been given the papers by the sheriff. The trial court also noted that the defendant had admitted to having possession of the papers at one point before “losing them.” The trial court determined, therefore, that “the defendant had actual notice of the pendency of the dissolution action.” In reaching that conclusion, the trial court did not credit the defendant’s testimony that he was unaware of the action and concluded “that the defendant [had] not met his burden of proving that he ‘was prevented by mistake, accident or other reasonable cause from prosecuting the action or making the defense.’ General Statutes § 52-212.”

In this case, the defendant did not file his motion to open or an appeal from the underlying judgment within the twenty day appeal period. See Practice Book § 63-1, formerly § 4009. The defendant’s appeal from the denial of his motion to open, therefore, “can test only whether the trial court abused its discretion in failing to open the judgment and not the propriety of the merits of the underlying judgment.” Altberg v. Paul Kovacs Tire Shop, Inc., 31 Conn. App. 634, 640, 626 A.2d 804 (1993).

“The decision to grant or deny a motion to open a judgment is within the trial court’s discretion and this decision will not be disturbed on appeal unless it was unreasonable and a clear abuse of discretion.” Id., 640. Practice Book § 17-43, formerly § 377, provides that a default judgment may be set aside by “showing reasonable cause, or that a good cause of action or defense in whole or in part existed at the time of the rendition of such judgment . . . and that . . . the defendant was prevented by mistake, accident or other reasonable cause from . . . appearing to make the same. . . .” See also General Statutes § 52-212.

Our review of the record leads us to conclude that the trial court’s findings were not unreasonable. “In determining whether the trial court abused its discretion, [we] must make every reasonable presumption in favor of its action.” (Internal quotation marks omitted.) Walton v. New Hartford, 223 Conn. 155, 169, 612 A.2d 1153 (1992). We conclude that the defendant failed to sustain his burden of demonstrating that the trial court abused its discretion in denying his motion to open.

The judgment is affirmed.

       General Statutes § 52-212 (a) provides: “Anyjudgmentrendered or decree passed upon a default or nonsuit in the Superior Court may be set aside, within four months following the date on which it was rendered or passed, and the case reinstated on the docket, on such terms in respect to costs as the court deems reasonable, upon the complaint or written motion of any party or person prejudiced thereby, showing reasonable cause, or that a good cause of action or defense in whole or in part existed at the time of the rendition of the judgment or the passage of the decree, and that the plaintiff or defendant was prevented by mistake, accident or other reasonable cause from prosecuting the action or making the defense.”