author: DUPONT, J.

text:
    STATE OF CONNECTICUT v. VASKA ANDERSON
    (AC 17456)
    Foti, SchaEer and Dupont, Js.

      Argued June 5
    officially released September 18, 2001

      Wesley S. Spears, for the appellant (defendant).

      Nancy L. Chupak, deputy assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Carl E. Taylor, senior assistant state’s attorney, for the appellee (state).
   Opinion

DUPONT, J.

This case comes to us on remand from our Supreme Court. See State v. Anderson, 255 Conn. 425, 773 A.2d 287 (2001). The defendant, Vaska Anderson, previously appealed to this court from the judgment, rendered after a jury trial, finding him guilty of possession of more than one kilogram of marijuana with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b), conspiracy to distribute more than one kilogram of marijuana by a person who is not drug-dependent in violation of General Statutes §§ 53a-48 (a) and 21a-278 (b), and possession of more than one kilogram of marijuana with intent to sell within 1500 feet of a school in violation of General Statutes § 21a-278a (b). We originally reversed the judgment and remanded the case for a new trial on the ground that a juror’s negative statements about the defendant undermined the structural integrity of the tribunal. State v. Anderson, 55 Conn. App. 60, 738 A.2d 1116 (1999). Our Supreme Court reversed our decision, concluding that we improperly exercised our supervisory powers, and remanded the case to us with direction to consider the defendant’s remaining claims. State v. Anderson, supra, 255 Conn. 447-48.

On appeal, the defendant’s remaining claims are that the trial court improperly (1) failed to give a curative instruction concerning the juror misconduct, (2) denied the defendant’s motion for a mistrial when the jury indicated that it was deadlocked and (3) instructed the jury concerning proof beyond a reasonable doubt. Id., 428 n.1. We conclude that the trial court did not act improperly and affirm the judgment of the trial court.

The facts underlying the defendant’s arrest are unrelated to the defendant’s claims and we need not restate them. See State v. Anderson, supra, 55 Conn. App. 62-63. The facts relating to the defendant’s first and second claims are as follows: “The trial was conducted in front of six jurors and three alternate jurors. After the conclusion of the third day of trial, the trial judge was approached by an alternate juror, M, who indicated that she wanted to speak to the judge. The trial judge instructed the courtroom clerk to speak with the juror. M told the clerk that one of the jurors, L, had stated to the other jurors that he knew the defendant or had seen him ‘on the street,’ that the defendant was not a nice person and that ‘they’re going to get this guy for something.’ The clerk informed the trial judge of M’s statements, and the trial judge called counsel into court and had the clerk disclose M’s statements to them. The next day when court reconvened, the trial judge instructed the clerk to state for the record the statements M made to him. The trial judge decided that it would be necessary to call M into open court to ascertain exactly what she overheard or what had been said to her. Counsel would be given the opportunity to submit questions to the court for the court to ask the juror.

“M testified that L stated to the other jurors that he knew the defendant and had seen him ‘on the street,’ that the defendant was ‘not a very nice person’ and that ‘they’re going to get this guy for something.’ She testified that when she heard the statements, she thought that it did not seem right to her and that she should bring this matter to the court’s attention. She said that she realized that L did not know the defendant personally. M also said that at a subsequent break in the jury deliberating room, another juror asked her what she thought about what L had said and then commented that ‘it didn’t seem right.’ When M was asked by the trial judge if she could sit fairly and impartially and decide the case solely on the basis of the evidence presented, M answered, ‘Yes.’

“The court then examined L. L stated that he had realized after the trial began that he recognized the defendant as a man he had seen once before when L worked as an automobile mechanic, towing vehicles. L stated that he told the other jurors in the jury room that he knew the defendant. L also stated that he had no idea if the defendant was a nice person because he had never spoken with him and saw him only on that one occasion for a short period of time. L twice denied telling the other jurors that the defendant was not a very nice person and that ‘they’ would get him for something.

“On the basis of the testimony of M and L, the trial judge determined that a separate inquiry of the remaining five jurors and two alternates would be necessary. Juror W testified that another juror, while in the jury room, said that he knew the defendant on the street in the past. She stated that she could keep an open mind and decide the case on the basis of the evidence. Juror T testified that in the jury room with all of the jurors present, another juror said that he thought he saw the defendant once and that the defendant was ‘a pretty tough fellow. ’ T said that he ‘tightened up a little bit’ when he heard the statements. When asked if he could decide the case fairly, T replied, ‘Absolutely yes.’ He also stated that he could put aside what he had heard and decide the case on the basis of the evidence.

“Jurors P and R testified that they did not hear any statements concerning the defendant. Juror K testified that she heard a juror mention that he passed the defendant on the street once and that she heard the juror say something to the effect that the defendant ‘did bad’ and ‘he knows he is in trouble.’ When asked if she could be fair and impartial, K responded, ‘Oh sure. It hasn’t changed anything.’ She stated she could put the statements aside and decide the case on the basis of the evidence. Juror A, an alternate, testified that he heard one juror state that he had seen the defendant on the street, but that no statements were made concerning what kind of person the defendant was or what should happen to the defendant, and that what he heard would in no way affect his decision. Juror C, another alternate, testified that one juror stated that he knew the defendant, not personally, but that he had seen the defendant ‘on the street.’ C also testified that nothing was said as to whether the defendant was a bad person or concerning what should happen to him.

“Thus, three of the jurors testified to hearing L’s statements regarding the defendant, namely, that the defendant ‘was not a very nice person,’ that the defendant is ‘a pretty tough fellow,’ that ‘he did bad’ and ‘he knows he is in trouble, ’ and that ‘they’re going to get this guy for something.’ Two jurors had no recollection whatsoever; the rest of the jurors and alternate jurors who heard something heard statements to the effect that L either knew the defendant or had seen him ‘on the street.’ The trial judge instructed all of the jurors and the alternate jurors that they must decide the case solely on the basis of the evidence, and all of them testified that they could decide the case fairly and impartially.” Id., 63-66.

After the court questioned the jurors, the defendant requested that L be removed from the jury panel. The state agreed that they should discharge L and replace him with one of the alternates. The defendant then moved for a mistrial, acknowledging that the trial court had fully complied with the mandates of State v. Brown, 235 Conn. 502, 668 A.2d 1288 (1995) (en banc), and had made an adequate inquiry into the alleged juror misconduct. The defendant admitted that L’s statement that he knew the defendant from the street, in isolation, did not prejudice the defendant. The defendant argued, however, that those statements combined with the other comments, such as the defendant was a “bad person” and that the jury would “get him for something,” compromised his right to a fair and impartial jury. The defendant therefore claimed that no action short of a mistrial would be sufficiently curative. The state argued that the trial should proceed with the remaining jurors and alternate jurors. The trial court discharged L from the juror panel and denied the defendant’s motion for a mistrial. The final deliberating body consisted of four jurors who had heard some of L’s remarks and two jurors who had not heard any of L’s statements.

I

The defendant first claims that the trial court improperly failed to give a curative instruction concerning the juror misconduct, thus depriving him of a fair trial. The defendant argues that the court’s voir dire of each juror at the time that the remarks came to the court’s attention was insufficient to cure the harm caused by the juror’s misconduct. The defendant claims that the failure to give a curative instruction during the charge at the conclusion of the case that directly addressed the excused juror’s comments left it to the jury’s conjecture whether to consider the statements of the excused juror or to consider that juror’s credibility dining deliberation. According to the defendant, a curative instruction would have obviated any prejudice resulting from the excused juror’s statements. See State v. Wooten, 227 Conn. 677, 694, 631 A.2d 271 (1993). The defendant also asserts that the remaining jurors might have discussed the excused juror’s comments in disobedience of the trial judge’s direct individual instruction to each juror to the contrary.

The state argues that because the defendant never objected to the charge’s failure to contain a curative instruction, we should not review the claim. See State v. Pinnock, 220 Conn. 765, 796, 601 A.2d 521 (1992). The state argues, in the alternative, that the trial court’s charge addressed the issue of extrinsic evidence and that the trial judge’s individual voir dire already had cautioned the jurors not to consider extrinsic evidence and to decide the case solely on the evidence presented. Our Supreme Court’s remand to us requires us to review the claim. We agree with the state’s alternative argument.

The following additional facts are relevant to this claim. When the trial judge conducted a voir dire concerning the excused juror’s comments, he did not take extensive notes because he “wanted to look right at the jurors, observe them as they were talking, observe their reactions and form [his] opinion . . . .” The court then stated that it “did observe all of these jurors very closely and [it] thought all of them were being very honest and very candid and very genuine and sincere in their statement to the court. . . . [T]his would not in any way affect their judgment in the case . . . .” The court found the jurors’ statements to be “very credible.” The court stated that “based on [its] assessment of the jurors that came in to take the stand and [were] aware of the jurors’ oath ... we do not have a situation where they have formed an opinion of the accused . . . that is going to affect the way they view the accused or impact on their ability to be objective and impartial.”

Following the parties’ closing arguments, the court’s charge to the jury included the following statements: “You, as I stated,' are the sole judges of the facts. . . . You may not go outside the evidence to find facts. You may not resort to guesswork or conjecture or speculation or suspicion. You must not be influenced by any personal likes or dislikes, or opinions, prejudices or sympathy.

* * *

“The evidence from which you are to decide what the facts consist of [is]: one, the sworn testimony of witnesses, both direct and cross-examination and regardless of the witnesses who testified in this trial; and two, the full exhibits, that is, those items or documents which have been marked as full exhibits and received into evidence.

* * *

“Testimony that has been excluded or stricken or that you have been instructed to disregard, that is not evidence in which you can rely upon in reaching your verdict. If some testimony has been received for limited purposes, and I gave a limited instruction, you must follow that limited instruction.

“Anything you have seen or heard when the court was not in session, that obviously is not evidence. You are to decide the case solely on the evidence received here during the orderly course of the trial.” (Emphasis added.)

Although the court did not address the juror’s comments directly during the charge to the jury, we are persuaded that it adequately addressed, by implication, the excused juror’s comments in its instruction. The instruction alone clarifies that the jury should not have considered any extrinsic evidence, including the statements made by the excused juror. The court explicitly made that point several times in the charge to the jury. A curative instruction directly reiterating the excused juror’s comments or discussing the fact that a juror made negative statements would have unnecessarily brought those negative comments to the forefront of the jurors’ minds many days after the comments were made. Moreover, it would have alerted those jurors who did not originally overhear the excused juror’s comments to the negative feelings held by the excused juror. A curative instruction with direct reference to the juror’s comments may have been more detrimental to the defendant’s case than the instruction that the court delivered, which told the jurors to consider only the evidence that was presented at trial.

In addition to the general charge to the jury, the court also individually addressed the jurors at the time it first became aware of the juror’s statements. That voir dire, with input from both parties, was exemplary and emphatically cautioned each juror that he or she should not consider the excused jurors comments during deliberations. Absent contrary evidence, there is no reason to believe that the members of the jury did not follow the court’s instruction. See State v. Rouleau, 204 Conn. 240, 254, 528 A.2d 343 (1987); State v. Leonard, 31 Conn. App. 178, 196, 623 A.2d 1052, cert, granted, 226 Conn. 912, 628 A.2d 985 (1993) (appeal withdrawn January 7, 1994). We conclude that the lack of a curative instruction directly addressing the excused juror’s comments did not deprive the defendant of a fair trial.

II

The defendant next claims that the court improperly denied his motion for a mistrial when the jury indicated that it was deadlocked, thus depriving him of his right to a trial free of coercion. After the jury had delivered a note indicating that it was deadlocked, the court delivered a “Chip Smith” charge to the jury. See State v. Smith, 49 Conn. 376, 386 (1881). The defendant concedes our Supreme Court has upheld the “Chip Smith” charge. State v. Feliciano, 256 Conn. 429, 439, 778 A.2d 812 (2001); State v. Wooten, supra, 227 Conn. 707; State v. Ryerson, 201 Conn. 333, 349-50, 514 A.2d 337 (1986). He argues, however, that the delivery of a “Chip Smith” charge was inappropriate under the circumstances of this case and prejudiced his right to a fair trial.

The following additional facts are relevant. Jury deliberations began on March 5,1997, at 11:43 a.m., continuing until the close of the court day. The deliberations continued on March 6, 1997, until 2:40 p.m., at which time the jury indicated that it was deadlocked. The court stated that it would consider a “Chip Smith” charge, and the state requested such an instruction. The defendant filed a motion for a mistrial on the grounds that the jury had deliberated long enough and that, on the basis of the totality of the circumstances, a “Chip Smith” instruction would be inappropriate. The court denied the defendant’s motion, stating that it believed that the jurors had promised to stick to their convictions during voir dire before the trial had began and, therefore, there was not an inherent danger that a juror would go against his or her convictions. The court proceeded to deliver the “Chip Smith” charge instruction, and the jury resumed deliberations. On March 7,1997, at 12:52 p.m., the jury returned its verdict.

The defendant argues that the jury’s impartiality was already in question because of the excused juror’s misconduct. He argues that there is no way to ascertain from the record whether the jury considered the excused juror’s comments. The defendant argues that in light of the circumstances of this case, in particular, the lack of a curative instruction and the excused juror’s comments, the “Chip Smith” instruction prejudiced his right to a fair trial. We are not persuaded.

Even though the language of the “Chip Smith” charge has been described as “inherently coercive in that [the instructions] are imbalanced in favor of the majority position”; State v. Beliveau, 237 Conn. 576, 598 n.1, 678 A.2d 924 (1996) (Berdon, J., dissenting); our courts consistently have upheld the delivery of the charge and have recognized it as an acceptable method of achieving jury unanimity. See State v. Ryerson, supra, 201 Conn. 349-50; State v. O’Neill, 200 Conn. 268, 284, 511 A.2d 321 (1986). The purpose of the instruction is to prevent a hung jury by urging the jurors to reach an agreement by continuing deliberations. The instruction “makes clear the necessity, on the one hand, of unanimity among the jurors in any verdict, and on the other hand the duty of careful consideration by each juror of the views and opinions of each of his fellow jurors . . . .” (Internal quotation marks omitted.) State v. Wooten, supra, 227 Conn. 707.

A “Chip Smith” charge directly addresses the jurors who hold the minority view in deliberations and urges them to reconsider their position. This court, however, previously has decided that the “Chip Smith” charge does not coerce the minority into following the majority verdict. State v. Lyons, 36 Conn. App. 177,188, 649 A.2d 1046 (1994). Our Supreme Court recently upheld the repeated delivery of a “Chip Smith” charge in a situation where alleged jury misconduct took place during the deliberations. State v. Feliciano, supra, 256 Conn. 440-41.

The defendant does not challenge the language of the charge, and, as previously cited, our courts consistently have upheld the language of a “Chip Smith” charge. In the present case, the court determined that the jury was able to deliberate with impartiality and that the court’s curative measures adequately ensured a fair trial. The delivery of a “Chip Smith” charge on the facts of this case did not deprive the defendant of his constitutional right to a fair trial.

Ill

The defendant’s final claim is that the court improperly instructed the jury concerning proof beyond a reasonable doubt. The defendant claims that the charge was flawed in that portions were worded in the negative and were unduly confusing.

Specifically, the defendant challenges as improper three portions of the court’s instructions regarding the definition of reasonable doubt. The state argues that our Supreme Court has consistently upheld language similar to the challenged portions of the instructions and we should therefore uphold the charge in the present case. We agree with the state that the charge was proper.

The standard of review of jury instructions is well settled. This court shall make an inquiry to determine whether it is possible that the court’s instructions misled the jury. See State v. DelVecchio, 191 Conn. 412, 421, 464 A.2d 813 (1983). “In determining whether it was . . . reasonably possible that the jury was misled by the trial court’s instructions, the charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding them to a correct verdict in the case. . . . The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge. . . . The test to be applied ... is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result. . . . State v. Delvalle, 250 Conn. 466, 470, 736 A.2d 125 (1999). As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury ... we will not view the instructions as improper. . . . State v. Denby, 235 Conn. 477, 485, 668 A.2d 682 (1995).” (Internal quotation marks omitted.) State v. Respass, 256 Conn. 164, 182, 770 A.2d 471 (2001).

The defendant first points to the court’s statement that “[reasonable doubt] is such a doubt as in the serious affairs that concern you, you would heed, that is, such a doubt as would cause reasonable men and women to hesitate to act upon in this matter of importance.” That language is very similar to the “hesitate to act” language that the United States Supreme Court suggested should be used in Holland v. United States, 348 U.S. 121, 140, 75 S. Ct. 127, 99 L. Ed. 150 (1954). The “hesitate to act” language also has been approved by our Supreme Court. State v. Morant, 242 Conn. 666, 688, 701 A.2d 1 (1997); State v. Smith, 210 Conn. 132, 149-50, 554 A.2d 713 (1989). The court’s language in the present case is nearly identical to a reasonable doubt instruction we recently affirmed in State v. Owens, 63 Conn. App. 245, 260-62, 775 A.2d 325, cert, denied, 256 Conn. 933, 776 A.2d 1151 (2001).

We are not convinced that the language should be in the affirmative, such as “willing to act” instead of “hesitate to act.” Hesitancy to act on a doubt is more consistent with everyday behavior and is more consistent with the concept of refusing to find a defendant guilty due to reasonable doubt, than “willing to act” on a reasonable doubt.

The defendant next argues that the court’s instruction that “[reasonable doubt] is a doubt that is honestly entertained and is reasonable in light of the evidence after a fair comparison and careful examination of the entire evidence presented in the case” was improper because it compared “reasonable doubt” with the concept of “honest doubt.” This court and our Supreme Corut consistently have upheld this type of language in jury instructions. State v. Montgomery, 254 Conn. 694, 730-31, 759 A.2d 995 (2000); State v. Hines, 243 Conn. 796, 816, 709 A.2d 522 (1998). We find nothing inherently unfair in the instructions.

The last specific portion of the jury instruction that the defendant challenges provides: “The state is not required to prove guilt beyond all doubt or to a mathematical or absolute certainty; however, if you can reconcile all the facts through with any reasonable theory [consistent] with innocence, you cannot find him guilty. On the other hand, if you find that the proven facts establish a guilt of the accused beyond a reasonable doubt, then the proper verdict would be guilty.” The defendant claims that this language was confusing and unintelligible. Again, that type of language consistently has been upheld by our appellate courts. State v. Small, 242 Conn. 93, 115, 700 A.2d 617 (1997); State v. Ellis, 232 Conn. 691, 705-706, 657 A.2d 1099 (1995). In the present case, the court instructed the jury to reconcile the facts and that if there is “any reasonable theory consistent with innocence, you must find him not guilty.” (Emphasis added.) That language did not prejudice the defendant’s right to a fair trial.

When we look at the instructions as a whole, we conclude that the court correctly conveyed the concept of reasonable doubt to the jury. Those instructions, taken as a whole, are nearly identical to those affirmed by this court in State v. Rodriguez, 63 Conn. App. 529, 532, 777 A.2d 704, cert, denied, 256 Conn. 936, 776 A.2d 1151 (2001).

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant was charged with two other crimes, assault of a peace officer in violation of General Statutes § 53a-167c (a) and failure to appear in the first degree in violation of General Statutes § 53a-172 (a). He was found not guilty as to those charges. The defendant was sentenced to a total effective sentence of fourteen years.

       The original panel of judges in State v. Anderson, supra, 55 Conn. App. 60, included Judge Hennessy, who had been named a state referee at the time of remand. The original panel also included Judge Dupont, who is also a state referee. Pursuant to General Statutes § 52-434c, the Chief Judge may assign no more than one state referee to sit on any one panel. The appeal was therefore reargued before a new panel.

       The defendant, who is a member of a minority race, notes that the juror who made the negative statements was the only minority juror seated on the original panel. The defendant argues that this may have given additional credibility to the excused juror and his statements, and “would likely influence the remaining jurors to convict a minority defendant.”

       Furthermore, we can review the unpreserved claim under the principles of State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), because the record is adequate for our review and the claim involves the allegation of a violation of a fundamental right. See State v. Thurman, 10 Conn. App. 302, 306-307, 523 A.2d 891, cert, denied, 204 Conn. 805, 528 A.2d 1152 (1987).

       A “Chip Smith” instruction reminds the jurors that they must act unanimously, while also encouraging a deadlocked jury to reach unanimity. See D. Borden & L. Orland, 5 Connecticut Practice Series: Connecticut Criminal Jury Instructions (2d Ed. 1997) §§ 4.4 and 4.5. The defendant is not challenging the language of the “Chip Smith” charge, and, for that reason, we need not reprint it here. The charge delivered is substantially similar to the charge presented in State v. Wooten, supra, 227 Conn. 705-706 n.13, and State v. Garcia, 13 Conn. App. 67, 68 n.1, 534 A.2d 906 (1987).

       The court delivered the following charge concerning reasonable doubt: “That brings me, of course, to the standard of proof beyond a reasonable doubt and the meaning of that term. A reasonable doubt means reasonable doubt can be arrived at by emphasizing the word reasonable. It is not a surmise, a guess, or a mere conjuncture, nor is a doubt suggested by the ambiguity or consent of the jury or not warranted by the evidence. It is such a doubt as in the serious affairs that concern you, you would heed, that is, such a doubt as would cause reasonable men and women to hesitate to act upon i[n] this matter of importance.
      “It is not a hesitation springing from any feelings of pity or sympathy for the accused, or for any other person who might be affected by your decision. It is, in other words, ladies and gentlemen, a real doubt, an honest doubt, a doubt that has its foundation in the evidence or lack of evidence. It is a doubt that is honestly entertained and is reasonable in light of the evidence after a fair comparison and careful examination of the entire evidence presented in the case.
      “Proof beyond a reasonable doubt does not mean proof beyond all doubt. The law does not require after absolute certainty on the part of the jury before it returns a verdict of guilty. The law requires that after hearing all of the evidence, if there is something in the evidence or lack of evidence that leaves in the minds of the jurors as reasonable men and women, a reasonable doubt as to the guilt of the accused, then the accused must be given the benefit of that doubt and acquitted.
      “Proof beyond areasonable doubt is proof that precludes every reasonable hypothesis except guilt and is inconsistent with any other rationale conclusion. As stated, absolutely in the affairs of life is almost never attainable and the law does not require absolute certainty on the part of the jury before the jury returns a verdict of guilty.
      “The state is not required to prove guilt beyond all doubt or to a mathematical or absolute certainty; however, if you can reconcile all the facts through with any reasonable theory [consistent] with innocence, you cannot find him guilty. On the other hand, if you find that the proven facts establish a guilt of the accused beyond a reasonable doubt, then the proper verdict would be guilty.”


source: Caselaw Access Project

author: LAVERY, C. J.

license: Public Domain

text:
    PERRY TAYLOR ET AL. v. ZONING BOARD OF APPEALS OF THE TOWN OF WALLINGFORD ET AL.
    (AC 20448)
    Lavery, C. J., and Spear and Flynn, Js.

      Argued April 4
    officially released September 18, 2001

      Leonard A. Fasano, with whom, on the brief, was Timothy J. Lee, for the appellants (plaintiffs).

      Gerald E. Farrell, Sr., assistant town attorney, for the appellee (named defendant).
   Opinion

LAVERY, C. J.

The plaintiffs, Perry Taylor, Margaret Taylor and Tayco Corporation, appeal from the judgment of the trial court dismissing their appeal from the decision of the defendant zoning board of appeals of the town of Wallingford (board), upholding the action of the town’s zoning enforcement officer, who issued a cease and desist order to the plaintiffs. On appeal, the plaintiffs claim that (1) the trial court improperly held that when the town of Wallingford (town) enacted zoning regulations making sand and gravel operations a permitted use in the plaintiffs’ zoning district subject to a special permit, the plaintiffs’ right to operate a sand and gravel mine on their property as a preexisting nonconforming use was extinguished, (2) the town zoning regulations are unconstitutional because they deprive the plaintiffs of their vested right in a preexisting nonconforming use of their property, and (3) the trial court improperly upheld the cease and desist order issued against the plaintiffs’ use of their property as a sand and gravel mine merely because the plaintiffs’ did not possess a special permit. We affirm the judgment of the trial court.

The following undisputed facts and procedural history are relevant to our consideration of this appeal. The plaintiffs are the owners of property located at 109 Hosford Street in Wallingford. Part of the property is located in an industrial zone, while the rest is located in a residential zone. Beginning in 1942 and continuing to the issuance of the cease and desist order that is the subject of this appeal, the property has been used by the plaintiffs and their predecessors in title for sand and gravel operations, which includes the screening, storing, excavating, stockpiling and selling of earth products, and which includes the sale of landscaping material. This use of the property by the plaintiffs’ predecessors in title began prior to the town’s adoption of its first zoning regulations, which took place in 1958.

The plaintiffs assert, and the board concedes, that when the town chose to enact zoning regulations, the plaintiffs’ use of their property for the operation of a quarry became a valid, preexisting nonconforming use. The plaintiffs continued to operate the quarry without any effort by the town to stop them from doing so for several decades thereafter.

In 1990, the town amended its zoning regulations to relax the prior categorical prohibition against the operation of quarries in residential zones by enacting a regulation permitting such use of property in a residential zone if the operator obtained a special permit. The plaintiffs sought and were granted such a permit in 1990, and thereafter renewed it on two subsequent occasions. The last renewal permit expired on June 8, 1998, at which time the plaintiffs did not seek a further renewal of their permit, but nevertheless continued their operation of the land as a quarry.

On June 11, 1998, the town’s zoning enforcement officer issued a cease and desist order to the plaintiffs ordering them to cease the operation of their quarry for the sole reason that they had failed to secure a renewal of their special permit. No other violation of any applicable zoning ordinance or regulation was alleged.

The plaintiffs appealed from the cease and desist order to the board, claiming that the expiration of their special permit notwithstanding, their use of the property as a sand and gravel mine was a preexisting nonconforming use and they, therefore, were not required to obtain a special permit. The town again conceded the plaintiffs’ claim that their use of the property constituted a preexisting nonconforming use. The town claimed, however, and the board agreed, that by previously applying for and receiving special permits, the plaintiffs had waived their rights to the continued use of their property as a preexisting nonconforming use. The board thus denied the plaintiffs’ appeal.

The plaintiffs thereafter appealed to the Superior Court pursuant to General Statutes § 8-8 (b). The court dismissed the appeal, concluding that “the use at issue is not a prohibited use, but a permitted use, subject to regulation.” The court explained that “[t]he scheme of regulation of the Wallingford zoning regulations clearly contemplated the conversion of a valid preexisting nonconforming use into a permitted use.” The court also held that even if “the plaintiffs’ use continues to be a valid, preexisting nonconforming use, this appeal still would fail” because “ [n] onconforming uses are subject to regulation in the interest of public health, safety and welfare.” We disagree with the former and agree with the latter reason given by the trial court for dismissing the plaintiffs’ appeal.

I

The plaintiffs first claim that the trial court improperly held that their right to operate a sand and gravel mine on their property as a preexisting nonconforming use was extinguished when the town enacted zoning regulations that made the use permitted, but subject to a special permit. We agree.

We first state the applicable standard governing our review of the plaintiffs’ claim. “Generally, it is the function of a zoning board or commission to decide within prescribed limits and consistent with the exercise of [its] legal discretion, whether a particular section of the zoning regulations applies to a given situation and the manner in which it does apply. The . . . trial court had to decide whether the board correctly interpreted the section [of the regulations] and applied it with reasonable discretion to the facts.” (Internal quotation marks omitted.) Quality Sand & Gravel, Inc. v. Planning & Zoning Commission, 55 Conn. App. 533, 538, 738 A.2d 1157 (1999).

“Ordinarily, this court affords deference to the construction of a statute applied by the administrative agency empowered by law to carry out the statute’s purposes. Police Department v. State Board of Labor Relations, [225 Conn. 297, 300, 622 A.2d 1005 (1993)]; Crocetto v. Lynn Development Corporation, 233 Conn. 376, 381, 612 A.2d 1212 (1992). . . . This case . . . presents a pure question of law, and therefore invokes a broader standard of review than is ordinarily involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion. . . . Furthermore, when a state agency’s determination of a question of law has not previously been subject to judicial scrutiny, as in this case, the agency is not entitled to special deference.” (Citations omitted; internal quotation marks omitted.) Starr v. Commissioner of Environmental Protection, 236 Conn. 722, 735-36, 675 A.2d 430 (1996).

The parties in this case do not disagree that the plaintiffs’ use of their property for sand and gravel operations was a valid nonconforming use that predated the enactment of the town’s first zoning laws. Even if this were not so, it could readily be inferred from the fact that, from the enactment of the town zoning laws in 1958 until 1998 when the cease and desist order giving rise to the present litigation was issued, the town’s zoning officials made no effort to stop or otherwise hinder the plaintiffs’ use of their property for sand and gravel operations, notwithstanding that the property was partly in a residential zone.

The trial court ruled that “[t]he scheme of regulation of the Wallingford zoning regulations clearly contemplated the conversion of a valid preexisting nonconforming use into a permitted use. . . . The court finds that the use at issue is not a nonconforming use, but a permitted use requiring special permit." (Emphasis added.) The trial court’s interpretation misses the mark by treating a nonconforming use as a transient permission, which becomes unnecessary and disappears if the municipality changes its zoning laws to make the use permissible with a special permit.

The right to continue an established nonconforming use of one’s property is securely grounded, both in statutes and in previous decisions of this court and our Supreme Court. General Statutes § 8-2 provides that municipal zoning “regulations shall not prohibit the continuance of any nonconforming use . . . existing at the time of the adoption of such regulations. ...”

“Where a nonconformity exists, it is a vested right which adheres to the land itself. And the right is not forfeited by a purchaser who takes with knowledge of the regulations which are inconsistent with the existing use. 1 Anderson, American Law of Zoning (2d Ed.) § 6.37, p. 445. A vested right, unless abandoned, to continue the nonconforming use is in the land .... [T]he right to a nonconforming use is a property right and . . . any provision of a statute or ordinance which takes away that right in an unreasonable manner or in a manner not grounded on the public welfare is invalid. A lawfully established nonconforming use is a vested right and is entitled to constitutional protection.” (Emphasis added; internal quotation marks omitted.) Petruzzi v. Zoning Board of Appeals, 176 Conn. 479, 483-84, 408 A.2d 243 (1979); see also Carbone v. Vigliotti, 222 Conn. 216, 230,610 A.2d 565 (1992~); Darien v. Webb, 115 Conn. 581, 586, 162 A.2d 690 (1932).

“It is a fundamental zoning precept in Connecticut . . . that zoning regulations cannot bar uses that existed when the regulations were adopted. Beckish v. Planning & Zoning Commission, 162 Conn. 11, 16, 291 A.2d 208 (1971). ... It is readily apparent that the rule concerning the continuance of a nonconforming use protects the right of a user to continue the same use of the property as it existed before the date of the adoption of the zoning regulations.” (Emphasis added; internal quotation marks omitted.) Cioffoletti v. Planning & Zoning Commission, 24 Conn. App. 5, 8, 584 A.2d 1200 (1991).

Although, generally, the plaintiffs bear the burden of proving the existence of a nonconforming use, the board in this case has conceded that the plaintiffs’ use of their property constituted a preexisting nonconforming use. The cases previously discussed, therefore, dictate that the plaintiffs have the right to continue the nonconforming use already established.

Once a nonconforming use is established, the only way it can be lost is through abandonment. The sale of the property will not destroy the right to continue in the nonconforming use. See Petruzzi v. Zoning Board of Appeals, supra, 176 Conn. 483-84. “General Statutes § 8-2 restricts the ability of a town to eliminate a nonconforming use through its zoning regulations.” DiBlasi v. Zoning Board of Appeals, 224 Conn. 823, 831, 624 A.2d 372 (1993). “There is nothing in the zoning regulations . . . which gives the defendant commission any authority to require the discontinuance of a preexisting use of undisputed legality . . . .” Beckish v. Planning & Zoning Commission, supra, 162 Conn. 15.

Cioffoletti v. Planning & Zoning Commission, supra, 24 Conn. App. 8, supports the proposition that a special permit ordinance does not supersede an owner’s property right under a preexisting nonconforming use. In that case, the Ridgefield planning and zoning commission made all preexisting nonconforming sand and gravel businesses subject to a special permit. The special permit procedure that the town implemented effectively put a halt to all sand and gravel operations within four years from the date of issuance of the permit. This court found that the procedure in effect violated General Statutes § 8-2, which dictates that “[s]uch regulations shall not prohibit the continuance of any nonconforming use . . . existing at the time of the adoption of such regulation. ...”

The Cioffoletti court went on to say: “It is readily apparent that the rule concerning the continuance of a nonconforming use protects the right of a user to continue the same use of the property as it existed before the date of the adoption of the zoning regulations. Helbig v. Zoning Commission, 185 Conn. 294, 306, 440 A.2d 940 (1981).” (Internal quotation marks omitted.) Cioffoletti v. Planning & Zoning Commission, supra, 24 Conn. App. 8.

The trial court in the present case found that the plaintiffs’ nonconforming use “was transformed in 1988” by the adoption of the regulations requiring a special permit for such a use. The court held that “[a] permitted use is not a nonconforming use.” The import of these two sentences is that the plaintiffs’ former nonconforming use would no longer exist, thus leaving the plaintiffs with a permitted use, which is not a nonconforming use. Therefore, the plaintiffs would no longer have a nonconforming use. Because, by the court’s own reasoning, the town’s regulation “transformed” the plaintiffs’ property from nonconforming to a permitted use, that regulation eliminated the plaintiffs’ nonconforming use. Our statutes and case law preclude the town from doing this.

Because the use of the plaintiffs’ property as a sand and gravel operation predated the institution of zoning ordinances in the town, the plaintiffs acquired, and continue to have, a valid, preexisting nonconforming use. The trial court improperly concluded that, when the town enacted the regulation allowing sand and gravel operations in the plaintiffs’ zoning district subject to a special permit, it effectively destroyed the plaintiffs’ nonconforming use and converted it into a permitted use, subject to a special permit.

II

The plaintiffs next claim that the town’s zoning regulations are unconstitutional because they deprive the plaintiffs of their vested right in the preexisting nonconforming use of their property.

This claim was not raised by the plaintiffs before the trial court, either in the original complaint or in any subsequent filings, including their motion to reargue the trial court’s decision. Practice Book § 60-5 provides in relevant part: “The court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. . . .” Accordingly, “[w]e need not resolve . . . the plaintiffs’] claim on the merits because the plaintiff [s] [have] not explained why this claim is appropriate for appellate review. [They do] not address the well established rule that, in the absence of exceptional circumstances, our appellate courts do not consider issues of law that were not presented first to the trial court.” Lundborg v. Lawler, 63 Conn. App. 451, 459, 776 A.2d 519 (2001); see also Lopiano v. Lopiano, 247 Conn. 356, 372-73, 752 A.2d 1000 (1998); Willow Springs Condominium Assn., Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 48-49, 717 A.2d 77 (1998).

Accordingly, we decline to review this claim.

Ill

The plaintiffs next claim that a town zoning enforcement officer cannot issue a cease and desist order against their use of their property merely because the plaintiffs did not obtain a special permit. We disagree.

The board asserts in its brief, and we agree, that the town has the right to regulate the plaintiffs’ nonconforming use under its police powers. “It is unquestionably true that any regulation, under the police power, for the use of property must have a reasonable relation to the public health, safety and welfare and must operate in a manner which is not arbitrary, destructive or confiscatory.” (Internal quotation marks omitted.) Teuscher v. Zoning Board of Appeals, 154 Conn. 650, 658, 228 A.2d 518 (1967). “The regulations come under the police power of the state which permits the regulation of any business or the use of any property in the interest of the public welfare or the public convenience, provided it is done reasonably. ... To justify the State in . . . interposing its authority in behalf of the public, it must appear, first, that the interests of the public . . . require such interference; and second, that the means are reasonably necessary for the accomplishment of the purpose and not unduly oppressive upon individuals.” (Citation omitted; emphasis added; internal quotation marks omitted.) Id., 658-59.

“Regulation of a nonconforming use does not, in itself, abrogate the property owner’s right to his nonconforming use. ... A town is not prevented from regulating the operation of a nonconforming use under its police powers. Uses which have been established as nonconforming uses are not exempt from all regulation merely by virtue of that status. It is only when an ordinance or regulatory act abrogates such a right in an unreasonable manner, or in a manner not related to the public interest, that it is invalid.” (Internal quotation marks omitted.) Bauer v. Waste Management of Connecticut, Inc., 234 Conn. 221, 242, 662 A.2d 1179 (1995); see also Ammirata v. Zoning Board of Appeals, 65 Conn. App. 606, 613-14, 782 A.2d 1285 (2001).

Accordingly, while we disagree with the trial court’s conclusion that the zoning regulation requiring a special permit that the town enacted extinguished the plaintiffs’ preexisting nonconforming use, we affirm the judgment of the trial court on the alternate basis that the requirement that the plaintiff obtain a permit was a reasonable regulation of its nonconforming use under the town’s police powers.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiffs also named as defendants the chairman of the board and the town clerk pursuant to General Statutes § 8-8 (e).

       As stated in their brief, the plaintiffs claim 1 hat: (1) the trial court improperly held that their right to operate a sand and gravel mine on their property as a preexisting nonconforming use was extinguished when the town enacted zoning regulations that made the use permitted but subject to a special permit; (2) the town zoning regulations are unconstitutional because they deprive the plaintiffs of their vested right in the preexisting nonconforming use of their property; (3) a preexisting nonconforming use should not lose its status as such merely because the use subsequently becomes permitted, but subject to a special permit; (4) the zoning enforcement officer improperly issued the cease and desist order against the plaintiffs’ use of their property as a sand and gravel mine because they did not possess a special permit; (5) because they had a vested right in a preexisting nonconforming use of their property, they were not required to obtain a special permit; (6) the town could not order them to cease and desist the operation of their mine as a preexisting nonconforming use because there was no threat to the public health, safety and welfare; and (7) if the plaintiffs were required to obtain a special permit, the zoning commission could not deny the permit for reasons unrelated to the public health, safety and welfare. Because we find that the latter four issues are merely parts of the former three, we have restated them for convenience.

       The board, in its brief, refers to 1955 as the year in which the town enacted its first zoning regulations. The plaintiffs, in their brief, refer to 1958 as the operative year. Because the trial court, in its memorandum of decision, stated that the institution of zoning in the town took place in 1958, we treat 1958 as the operative year.

       General Statutes § 8-8 (b) provides in relevant part: “[A]ny person aggrieved by any decision of a board may take an appeal to the superior court for the judicial district in which the municipality is located. The appeal shall be commenced by service of process . . . within fifteen days from the date that notice of the decision was published as required by the general statutes. The appeal shall be returned to court in the same manner and within the same period of time as prescribed for civil actions brought to that court.”


author: LAVERY, C. J. LANDAU, J.,

text:
    PAMELA B. BREHM v. DANA J. BREHM
    (AC 20683)
    Lavery, C. J., and Landau and Dranginis, Js.

      Argued June 12
    officially released September 18, 2001

      Charles F. Basil, for the appellant (defendant).

      Maureen E. Donahue, for the appellee (plaintiff).
   Opinion

LAVERY, C. J.

The defendant, Dana J. Brehm, appeals from the trial court’s denial of his motion to open the judgment of dissolution of his marriage to the plaintiff, Pamela B. Brehm. On appeal, the defendant claims that the court (1) improperly imposed conditions on the filing of his motion to open in violation of General Statutes § 52-212a, (2) violated his equal protection rights under the federal constitution by imposing on him conditions for filing a motion to open that other parties are not required to satisfy, (3) improperly rendered a judgment of dissolution on the same day that it granted the defendant’s counsel’s motion to withdraw his appearance and (4) abused its discretion in denying the motion to open. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of this appeal. The plaintiff wife commenced this action seeking a dissolution of marriage on the ground of irretrievable breakdown. The case was scheduled to be tried on January 20, 2000. On December 30, 1999, the defendant’s attorney, Charles F. Basil, filed a motion to withdraw his appearance. At trial, the court granted Basil’s motion to withdraw. At the time of his withdrawal, Basil informed the court that the defendant, a teacher, had left a message on his voice mail that he was aware that the trial would commence on January 20, 2000, but was unable to attend court on that date because he was required by his employer to attend a mandatoiy classroom management workshop and that Basil should ask for a continuance on his behalf. The court denied the motion for a continuance, and the matter proceeded to trial.

The court dissolved the parties’ marriage and issued certain financial orders. Subsequently, on February 4, 2000, the trial court sent a notice to the defendant stating that the marriage had been dissolved and that the financial orders issued by the court, which were attached to the notice, would become effective fourteen days from the date of service of the notice on the defendant. The notice also provided that the financial orders “were entered without prejudice to [the defendant] in that the court will consider a motion by the defendant to reopen the judgment for the purpose of hearing evidence from the defendant and considering proposed orders that the defendant may wish the court to consider on the condition that the defendant submits to the court the following within fourteen days from the date of service of this notice to the defendant: (1) Satisfactory documentation from the defendant’s employer indicating that the defendant was required to attend a workshop at his employment on January 20, 2000, and that the defendant’s failure to attend said workshop would result in the termination of his employment; (2) [satisfactory documentation from the defendant’s employer indicating when the defendant first became aware that he was required to attend such a workshop as a condition of his continued employment; and (3) [a]ny other information or documentation the defendant may wish to submit relevant to cause for his nonappearance for trial on January 20, 2000.”

The notice also stated that “[i]f the defendant submits such a motion to reopen within fourteen days after the service of this order, the court will stay issuance of those orders until deciding the motion to reopen and, if the court grants the motion to reopen, until any decision on that motion.”

The notice was received by the defendant on February 7, 2000. On February 22, 2000, the defendant filed a motion to open, claiming that he could satisfy the conditions imposed by the court for opening the judgment. On March 20, 2000, the court, after a hearing, denied the motion to open. The defendant appealed from the trial court’s judgment on April 10, 2000.

I

The defendant first claims that the conditions imposed by the trial court on the filing of his motion to open violated § 52-212a. Specifically, the defendant argues that because § 52-212a provides that a party may file a motion to open a judgment within four months from the time the judgment is rendered, the trial court improperly limited the time within which he could file a motion to open to fourteen days from the date notice was served on him. The defendant, noting that § 52-212a does not limit what claims a party may raise in a motion to open or what evidence the party may produce in support of those claims, also argues that the court improperly conditioned the granting of the motion to open on the defendant’s providing certain documentary evidence from his employer. We decline to review this claim.

Our review of the record reveals that the defendant did not raise this claim before the trial court. “It is well established that an appellate court is under no obligation to consider a claim that is not distinctly raised at the trial level. Practice Book § 60-5; Yale University v. Blumenthal, 225 Conn. 32, 36 n.4, 621 A.2d 1304 (1993) (issue not reviewed because not raised at trial). . . . [B]ecause our review is limited to matters in the record, we [also] will not address issues not decided by the trial court. . . . Crest Pontiac Cadillac, Inc. v. Hadley, 239 Conn. 437, 444 n.10, 685 A.2d 670 (1996) (claims neither addressed nor decided by trial court are not properly before appellate tribunal) . . . .” (Internal quotation marks omitted.) Burnham v. Karl & Gelb, P.C., 252 Conn. 153, 170-71, 745 A.2d 178 (2000). “This general rule against considering claims not raised at trial also applies to constitutional issues.” Statewide Grievance Committee v. Whitney, 227 Conn. 829, 846, 633 A.2d 296 (1993). “We will not promote a Kafkaesque academic test by which [a trial judge] may be determined on appeal to have failed because of questions never asked of him or issues never clearly presented to him.” (Internal quotation marks omitted.) Burnham v. Karl & Gelb, P.C., supra, 171. We, therefore, decline to review this claim.

II

The defendant next claims that the court violated his equal protection rights under the federal constitution by imposing on him conditions for filing a motion to open that other parties are not required to satisfy. Our review of the record reveals that this claim was not raised in the trial court. As stated previously, an appellate court is not bound to consider an issue “unless it was distinctly raised at the trial or arose subsequent to the trial. . . .” Practice Book § 60-5. We, therefore, decline to review this claim.

III

The defendant also claims that he was prejudiced by the court’s decision to render the judgment of dissolution on the same day that it granted his attorney’s motion to withdraw his appearance because that action prevented the defendant from obtaining new counsel prior to the rendering of the judgment. As with the defendant’s earlier claims, this claim was not raised in the trial court. We, therefore, decline to review this claim. See Practice Book § 60-5.

IV

The defendant’s final claim is that the court abused its discretion in denying his motion to open the dissolution judgment. We disagree.

Our standard of review of the court’s denial of a motion to open is well settled. “We do not undertake a plenary review of the merits of a decision of the trial court to grant or to deny a motion to open a judgment. The only issue on appeal is whether the trial court has acted unreasonably and in clear abuse of its discretion.” (Internal quotation marks omitted.) Mazziotti v. All state Ins. Co., 240 Conn. 799, 809, 695 A.2d 1010 (1997). “In determining whether the trial court abused its discretion, this court must make eveiy reasonable presumption in favor of its action. . . . The manner in which [this] discretion is exercised will not be disturbed so long as the court could reasonably conclude as it did.” (Internal quotation marks omitted.) Searles v. Schulman, 58 Conn. App. 373, 377, 753 A.2d 420, cert, denied, 254 Conn. 930, 761 A.2d 755 (2000).

Some additional facts are necessary for the resolution of the defendant’s claim. In support of his motion to open, the defendant submitted a letter from the principal of the school in which he was employed as a teacher. In the letter, the principal stated that the defendant was a new teacher and that his attendance at the classroom management workshop on January 20, 2000, was mandatory and required to secure his continued employment. The defendant, however, failed to provide, as requested by the trial court, any documentation from his employer regarding when the defendant was informed that he was required to attend a mandatory workshop on the date of the trial. Instead, the defendant’s counsel, on the basis of a letter that he had received from the defendant’s employer, represented to the court that the defendant had been notified by his employer sometime in December, 2000, that a mandatory workshop had been scheduled for January 20, 2000. The trial court denied the motion to open, stating that even if it were to accept the representation of the defendant’s counsel that the defendant did not learn until sometime in December, 2000, that he was required to attend a mandatory workshop on the day of the trial, it would not grant the motion because the defendant had ample time before the trial date to inform the court of the conflict and to seek a continuance. The court indicated that to grant the motion under these circumstances would greatly prejudice the plaintiff.

It is clear from the representation of the defendant’s own attorney that the defendant was informed by his employer sometime in December, 2000, that he would have to attend a mandatory workshop on January 20, 2000, the date of the trial. The defendant, therefore, had sufficient time to inform the court of this fact and to seek a continuance. The defendant failed to do so and, instead, waited until the day of the trial to request a continuance. Further, at the hearing on the motion to open, the defendant failed to provide any reason for his failure to seek a continuance before the day of the trial. Under these circumstances, we cannot conclude that the trial court acted unreasonably and in clear abuse of its discretion in denying the defendant’s motion to open.

The judgment is affirmed.

In this opinion DRANGINIS, J., concurred.

LANDAU, J.,

concurring. I fully agree with the majority’s conclusions as to the defendant’s first three claims. With respect to the fourth claim, however, while I agree with the result reached by the majority, I respectfully assert that the defendant is not entitled to review of his claim.

Pursuant to Practice Book § 61-10, the appellant is required to provide an adequate record for review. The record in this case does not include a written memorandum of decision issued by the court or a signed transcript of the court’s oral decision on the motion to open. The majority, citing State v. Lavigne, 57 Conn. App. 463, 468 n.4, 749 A.2d 83 (2000), concludes, however, that because a portion of the transcripts indicates the basis for the court’s decision respecting the defendant’s motion to open, the defendant is entitled to review of his claim. I respectfully disagree.

Here, as in Lavigne, the court neither issued a written memorandum of decision, nor signed a transcript of its oral decision. An unsigned portion of the transcript does, however, reveal the basis for the court’s decision. In Lavigne, the appellant, as required by Practice Book § 67-4 (c), included in his statement of the facts citations to the pages of the transcript where the court discussed the basis for its decision. Furthermore, the appellant included copies of those transcript pages in his appendix. Therefore, this court did not have to search the record to find the basis for the trial court’s decision. Here, however, the plaintiff violated Practice Book § 67-4 (c) by not including citations to the transcript in his brief and by failing to attach copies of the transcript to an appendix.

Before exercising its supervisory powers to excuse the plaintiffs failure to provide this court with an adequate record, the majority was forced to search the record to find the basis for the court’s decision. And while the exercise of our “supervisory authority is a necessary adjunct of appellate jurisdiction that is used to facilitate business and advance justice . . . [it] does not allow litigants to circumvent other rules of practice designed to promote judicial efficiency and justice.” (Citations omitted; internal quotation marks omitted.) State v. Piorkowski, 37 Conn. App. 252, 265, 656 A.2d 1046 (1995), rev’d on other grounds, 236 Conn. 388, 672 A.2d 921 (1996). Where, as here, an appellant fails to follow the most basic rules established to guarantee the presentation of an adequate record, this court should not exercise its supervisory powers to afford the appellant review of his claim. Holmes v. Holmes, 32 Conn. App. 317, 322, 629 A.2d 1137, cert, denied, 228 Conn. 902, 634 A.2d 295 (1993). Therefore, for the reasons discussed, I believe that the logic of Lavigne does not apply and that the defendant is not entitled to review of his claim.

       General Statutes § 52-212a provides in relevant part: “Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, a civfl judgment or decree rendered in the Superior Court may not be opened or set aside unless a motion to open or set aside is filed within four months following the date on which it was rendered or passed. . .

       At the time that the motion to open was filed, the defendant was again being represented by Basil.

       In her brief, the plaintiff claims that the defendant’s appeal should be dismissed because it is not taken from an appealable final judgment. Specifically, the plaintiff argues that a final judgment of dissolution was not rendered on January 20, 2000, when the trial court dissolved the parties’ marriage because the court stayed the effectiveness of its financial orders. Instead, the plaintiff claims that the judgment of dissolution was rendered on March 20, 2000, when the court denied the defendant’s motion to open and when the financial orders became effective. The plaintiff further argues that because the defendant had the right to file a motion to open pursuant to § 52-212a after the judgment had become final on March 20, 2000, the denial of the defendant’s motion did not conclude the rights of the parties, and, therefore, the defendant’s appeal is not taken from an appealable final judgment.
      We reject the plaintiffs argument for several reasons. First, we conclude, contrary to the plaintiffs assertion, that a judgment of dissolution is final even though the trial court stays the effectiveness of the financial orders. Consequently, the motion filed by the defendant was indeed a motion to open the judgment, the denial of which is appealable. See Alix v. Leech, 45 Conn. App. 1, 3, 692 A.2d 1309 (1997); see also Norwich v. Lebanon, 193 Conn. 342, 346 n.4, 477 A.2d 115 (1984). Further, even if we assume that the plaintiff is correct and that the judgment of dissolution was rendered on March 20, 2000, when the trial court denied the motion to open, the appeal would still be proper because it would have been then taken from a final judgment of dissolution, which is appealable. If the plaintiffs argument that the defendant cannot appeal from a judgment of dissolution on the ground that he could have filed a motion to open were to be accepted, it would mean that no judgment would be appealable as long as there is a possibility that a motion to open could be filed. There is no authority to support such a proposition.

       Even assuming that this claim was raised in the trial court, we would still not be able to conclude, on the basis of the record before us, that the conditions imposed by the court in the notice violated § 52-212a. Although it is possible that the court, as argued by the defendant, intended to prohibit the defendant from filing a motion to open unless he satisfied the conditions contained in the notice, it is also possible that the conditions were intended to apply only if the defendant wanted a stay of the effectiveness of the financial orders while the court considered his motion to open, a benefit that does not ordinarily accompany the filing of a motion to open. Without an explanation from the trial court regarding what its intentions were when it imposed the conditions on the filing of the motion to open, it is not possible to address the defendant’s claim that the conditions imposed by the court violated § 52-212a. See Gallant v. Esposito, 36 Conn. App. 794, 798, 654 A.2d 380 (1995) (without necessary factual and legal conclusions furnished by trial court, any decision by this court regarding defendant’s claim would be entirely speculative).

       We note that the court orally rendered its decision after argument on the matter. The court neither issued a written memorandum, nor transcribed and signed its oral decision. Because the court’s decision is sufficiently detailed and concise, however, we will review the defendant’s claim so as not to exalt form over substance. See State v. Lavigne, 57 Conn. App. 463, 468 n.4, 749 A.2d 83 (2000).

       The actual letter from the employer was not submitted into evidence.

       The defendant was not present for the hearing on the motion to open. Consequently, there was no testimony from the defendant on the issue of when he became aware of the fact that a mandatory workshop had been scheduled for January 20, 2000.


author: MIHALAKOS, J.

text:
    ANN MODZELEWSKI ET AL. v. WILLIAM RAVEIS REAL ESTATE, INC.
    (AC 20580)
    (AC 21150)
    Spear, Mihalakos and Peters, Js.
    Argued May 29
    officially released September 18, 2001

      Richard L. Albrecht, with whom was Barbara M. Schellenberg, for the appellant (defendant).

      Thomas G. Parisot, with whom was Patrick W. Finn, for the appellees (plaintiffs).
   Opinion

MIHALAKOS, J.

The defendant, William Raveis Real Estate, Inc., appeals from the summary judgment rendered in favor of the plaintiffs, Ann Modzelewski, Theodore Modzelewski, Lenora White and Gordon White, in this summary process eviction proceeding. On appeal, the defendant claims that the trial court improperly (1) granted the plaintiffs’ motion for summary judgment, thereby denying the defendant a full evidentiary hearing on its equitable defenses and (2) dismissed the defendant’s counterclaim seeking a declaratory judgment of constructive or actual notice. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of this appeal. On November 4, 1996, the defendant entered into a written lease agreement with the plaintiffs with respect to a commercial condominium located in Southbury. Paragraph fourteen of an addendum to the lease provided in pertinent part: “At the expiration of the initial term, IF this lease shall be in full force and effect and Tenant shall have fully performed all of its terms and conditions, the Tenant shall have the option to extend this Lease for two separate and successive extended terms .... The Tenant shall exercise the option for an extended term by notifying the Landlord in writing at least six months prior to the expiration of the then current term. Upon such exercise this lease shall be deemed to be extended without the execution of any further lease or instrument.” Paragraph twenty-five of the lease provided in pertinent part: “Any notice which either party may or is required to give, shall be given by mailing the same, postage prepaid to . . . Lessor at the address shown below, or at such other places as may be designated by the parties from time to time.” Paragraph twenty-six further provided in pertinent part: “Any holding over after the expiration of this lease, with the consent of Lessor, shall be construed as a month-to-month tenancy . . . .”

The defendant was required to notify the plaintiffs of its intention to renew the lease no later than May 5, 1999. On November 30, 1999, the defendant gave the plaintiff written notice of its intention to renew the lease. That notice was received by the plaintiffs on December 4, 1999. The defendant claimed that it inadvertently had deleted a notation regarding the date for furnishing notice to the plaintiffs from its office computer. The plaintiffs rejected the defendant’s notice of renewal by certified letter on December 10, 1999. In the certified letter, the plaintiffs informed the defendant that they had contracted to sell the premises to a third party, William Pitt Real Estate Limited Partnership (Pitt), a direct competitor of the defendant. On December 10, 1999, the plaintiffs served the defendant with a notice to quit possession of the premises on or before January 17, 2000.

On December 17, 1999, the defendant brought an action against Lisa Giordano, Lenora White, Gordon White, Ann Modzelewski, Theodore Modzelewski and Pitt, claiming that (1) Giordano, Lenora White and the Modzelewskis were fiduciaries of the defendant, (2) Giordano, Lenora White and the Modzelewskis breached the fiduciary duty that they owed to the defendant, (3) Giordano owed the defendant the duties of faithfulness, honesty and loyalty and breached those duties, (4) Giordano owed the defendant the duty of good faith and fair dealing and breached that duty, (5) Giordano, the Whites, the Modzelewskis and Pitt had engaged in unfair methods of competition and unfair or deceptive acts or practices in the conduct of trade or business in violation of General Statutes § 42-110b (а) of the Connecticut Unfair Trade Practices Act, and (б) Giordano, Lenora White and the Modzelewskis had constructive notice of the defendant’s intent to renew the lease and therefore were estopped from denying the defendant the right of occupation.

In that action, the defendant sought (1) a temporary and permanent injunction enjoining the lessors from leasing the premises to anyone other than the defendant for the first extended term of the lease, (2) a temporary and permanent injunction enj oining Pitt from occupying the premises, (3) a temporary and permanent injunction compelling Giordano to return to the defendant any documents or materials of any kind that she had taken from the defendant, (4) a judgment declaring that the defendant gave the lessors constructive notice of its intent to renew the lease, (5) a judgment declaring that the lessors and Giordano are estopped from denying that the defendant has the right to occupy the premises during the first extended term of the lease (from November 5,1999, to November 5,2002), (6) ajudgment declaring that the defendant is in lawful possession during the first extended term of the lease, (7) compensatory damages, (8) punitive damages pursuant to the common law and General Statutes § 42-U0g, (9) treble damages pursuant to General Statutes § 52-564, (10) attorney’s fees pursuant to General Statutes § 42-1 lOg, (11) interest and costs and (12) such other relief as the court deemed just and proper. That case is still pending in the Superior Court.

On February 1, 2000, the plaintiffs commenced the present summary process action, seeking to evict the defendant. The defendant asserted several equitable defenses, as well as a counterclaim for a declaratory judgment. In its counterclaim, the defendant claimed that (1) Giordano, Gordon White and Ann Modzelewski were fiduciaries of the defendant and (2) the plaintiffs had constructive notice of the defendant’s intent to renew the lease. On February 4, 2000, the plaintiffs filed a motion to dismiss the defendant’s counterclaim. On March 1, 2000, the trial court granted the plaintiffs’ motion to dismiss the defendant’s counterclaim, and the defendant appealed to this court. On March 3, 2000, the defendant sought to add a fourth special defense of constructive or actual notice. The court did not rule on that request. On May 12, 2000, a motion for summary judgment was filed by the plaintiffs. On August 28,2000, the court granted the plaintiffs’ motion for summary judgment. The defendant filed a separate appeal with this court.

I

We address the defendant’s appeal in AC 20580 first. The defendant claims that the court improperly dismissed its counterclaim for a declaratory judgment of constructive or actual notice. We do not agree.

“The standard of review of a motion to dismiss is . . . well established. In ruling upon whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader. . . . Accepting as true the allegations in the complaint and all facts provable thereunder, in deciding whether a declaratory judgment action in a given case is appropriate, we allow the trial court wide discretion to render a declaratory judgment unless another form of action clearly affords a speedy remedy as effective, convenient, appropriate and complete. ... In sum, at least when there is a prayer for general equitable relief, it is the law in our courts, as it is in the federal courts, that [a] court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.” (Internal quotation marks omitted.) Vincenzo v. Chairman, Board of Parole, 64 Conn. App. 258, 260-61, 779 A.2d 843 (2001).

In this case, the plaintiffs claimed in their motion to dismiss that the defendant’s counterclaim should be dismissed under the prior pending action doctrine in that the same claim was brought by the defendant against the plaintiff and others in a separate action.

“We have explicated the prior pending action doctrine as follows: The pendency of a prior suit of the same character, between the same parties, brought to obtain the same end or object, is, at common law, good cause for abatement. It is so, because there cannot be any reason or necessity for bringing the second, and, therefore, it must be oppressive and vexatious. This is a rule of justice and equity, generally applicable, and always, where the two suits are virtually alike, and in the same jurisdiction. . . . The rule forbidding the second action is not, however, one of unbending rigor, nor of universal application, nor a principle of absolute law .... We must examine the pleadings to ascertain whether the actions are virtually alike.” (Citations omitted; internal quotation marks omitted.) Halpern v. Board of Education, 196 Conn. 647, 652-53, 495 A.2d 264 (1985).

After reviewing the record before us, we conclude that the present case and the prior pending action both (1) arise from the same factual background, (2) include the same parties and (3) seek the same goals or objectives. The defendant argues that the parties in the present action and those in the prior pending action are different. Here, the Modzelewskis and the Whites are plaintiffs and Raveis, is the defendant. In the prior action, Raveis is the plaintiff and the Modzelewskis, the Whites, Giordano and Pitt are the defendants. While the parties are not “identical” in that there are two additional parties to the prior action, the identical parties to the present action are involved in the prior one.

The defendant further argues that this court should not apply the prior pending action doctrine because it had “good reason” to bring the counterclaim in this controversy. There is no such exception to the prior pending action doctrine, and the defendant provides us with no law to support its assertion.

Even if the defendant’s counterclaim were to be heard on the merits, it fails the test set forth in Tartaglia v. R.A.C. Corp., 15 Conn. App. 492, 545 A.2d 573, cert, denied, 209 Conn. 810, 548 A.2d 443 (1988). “Because the six month renewal notice was not given by the required date, the defendant has no right to relief unless it can establish facts which warrant relief under equitable principles. . . . Equitable relief is extraordinary and not available as a matter of right, but rather it is within the discretion of the court. . . . This discretion, however, is not without limitation. . . . The tripartite standard . . . requires that the tenant establish (1) that the delay was a result of mere neglect and not gross or wilful negligence, (2) that the delay was slight, and (3) that the lessor suffered only minimal harm while the harm to the lessee was substantial. All three elements of this standard must be met before equitable relief will be granted.” (Citations omitted; internal quotation marks omitted.) Id., 494.

The court correctly concluded that the defendant easily meets the first prong of this standard, as the notation in the computer system was accidentally deleted. We cannot agree with the defendant, however, that a delay in excess of six months was slight. Because the defendant fails to meet the second prong of the Tartaglia test, it is not entitled to equitable relief.

II

In appeal AC 21150, the defendant claims that the court improperly granted the plaintiffs’ motion for summary judgment, thereby denying the defendant a full evidentiary hearing on its equitable defenses. The defendant specifically claims that the court applied the wrong standard in evaluating the plaintiffs’ motion for summary judgment because a fiduciary relationship existed between the defendant and the plaintiffs. We do not agree.

“Summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. ... In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.” (Internal quotation marks omitted.) QSP, Inc. v. Aetna Casualty & Surety Co., 256 Conn. 343, 351, 773 A.2d 906 (2001).

“The standard of review of a trial court’s decision to grant summary judgment is well established. [W]e must decide whether the trial court erred in determining that there was no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Internal quotation marks omitted.) Boynton v. New Haven, 63 Conn. App. 815, 819, 779 A.2d 186, cert, denied, 258 Conn. 905, 782 A.2d 136 (2001).

The undisputed facts here establish that (1) the plaintiffs and the defendant entered into a written lease for the premises in Southbury, (2) the lease required that the defendant notify the plaintiffs of its intention to renew, in writing, no later than six months prior to the expiration of the lease and (3) the defendant failed to give the plaintiffs timely notice. The trial court properly granted the motion for summary judgment. As discussed previously, even if the court were to have considered granting relief based on equitable principles, the defendant failed to satisfy the test set forth in Tartaglia.

The defendant raised its claim of fiduciary duty both in the prior pending action against the plaintiffs and in the counterclaim to this appeal. When the trial court granted the plaintiffs’ motion to dismiss the defendant’s counterclaim under the prior pending action doctrine, it dismissed the defendant’s claim of fiduciary duty. In its memorandum of decision, the court did not address the issue of a fiduciary duty because that issue had been disposed of previously. The defendant continues to litigate the question of a fiduciary duty between itself and the plaintiffs in the prior pending action and thus may not argue it here.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 42-110b (ajprovides: “No 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 § 42-110g (a) provides in relevant part: “Any person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a method, act or practice prohibited by section 42-110b, may bring an action in the judicial district in which the plaintiff or defendant resides or has his principal place of business or is doing business, to recover actual damages. . . . The court may, in its discretion, award punitive damages and may provide such equitable relief as it deems necessary and proper.”

       General Statutes § 52-564 provides: “Any person who steals any property of another, or knowingly receives and conceals stolen property, shall pay the owner treble his damages.”

       General Statutes § 42-110g (g) provides in relevant part: “In any action brought by a person under this section there shall be a right to a jury trial except with respect to the award of punitive damages under subsection (a) of this section or the award of costs, reasonable attorneys’ fees and injunctive or other equitable relief . . . .”