author: SCHALLER, J.

text:
    FAMILY FINANCIAL SERVICES, INC. v. CARMEN SPENCER
    (14541)
    Dupont, C. J., and Schaller and Spear, Js.
    Argued December 13, 1995
    officially released June 18, 1996

      William H. Cashman filed a brief for the appellants (plaintiff et al.).

      Lori Welch-Rubin, with whom, on the brief, was Barry Sigal, for the appellee (named defendant).
   SCHALLER, J.

The plaintiff, Family Financial Services, Inc., appeals from the judgment of the trial court rendered in favor of the defendant, Carmen Spencer, on the plaintiffs complaint. The plaintiff, together with the counterclaim defendants, Aglino Masotta and Edward Masotta, also appeal from the judgment rendered against them in favor of the defendant on the defendant’s counterclaims. The plaintiff and the Masot-tas claim that the trial court improperly (1) found that the Masottas were the makers of the loans rather than investors in the loans, (2) concluded that the mortgage assignment needed to be recorded, (3) concluded that the loan was unconscionable, (4) concluded that Public Acts 1993, No. 93-130, § 1 (8), did not apply, (5) concluded that the federal Truth in Lending Act (TILA) negates the common law requirement of tender back necessary effectively to rescind a transaction, and (6) failed to hold an evidentiary hearing before awarding attorney’s fees. We affirm the trial court’s judgment except as to the issue of attorney’s fees, which we remand for further proceedings.

The relevant facts are as follows. The defendant is the owner of a three-family house in Bridgeport. When the defendant needed a loan to repair a leaking roof, she was referred to the plaintiff to apply for a second mortgage. On July 16,1990, the plaintiff and the defendant entered into a loan agreement secured by a second mortgage. The amount of the loan was $30,000 with an interest rate of 20 percent. The note required eleven monthly payments of $500 with a final balloon payment of $30,500 on July 20, 1991. In the defendant’s loan application, she stated that her monthly income was $1126.67 and that she owed a monthly amount of $1011 to People’s Bank on a first mortgage. The plaintiff placed the defendant in a class C category that did not require income verification. When the defendant was unable to make the balloon payment in July, 1991, the plaintiff arranged to rewrite the loan.

On July 17, 1991, the parties entered into another loan agreement that allowed the defendant to fulfill her obligation of repayment under the July, 1990 mortgage. The amount of the note in this transaction was $44,000 with an interest rate of 20 percent. The defendant was required to make eleven monthly payments of $733.33 with a final balloon payment of $44,733.33 on July 22, 1992. Both mortgage transactions required the defendant, as a condition of credit, to pay one year’s interest in advance. On July 22,1992, the defendant was unable to make the required balloon payment.

On November 9, 1992, the plaintiff brought a foreclosure action. The defendant filed special defenses, alleging that the mortgage was a scheme to defraud, was unconscionable, lacked consideration because the plaintiff failed to release the July 16, 1990 mortgage, and violated General Statutes (Rev. to 1991) § 36-2247. The defendant also pleaded as special defenses that she had rescinded the loan after learning that the mortgage violated TILA, that the plaintiff had fraudulently concealed that it was acting as a broker, and that the plaintiff had made assignments of the mortgage to defraud the defendant of ownership of her property. The defendant also filed counterclaims alleging that the plaintiff and the Masottas violated General Statutes (Rev. to 1991) §§ 36-224Í, 37-4, 37-9,® TILA, and the Connecticut

Unfair Trade Practices Act (CUTPA).

The trial court found that the Masottas were the real parties in interest and that the plaintiff lacked standing to maintain the foreclosure action and, therefore, dismissed the plaintiffs claim. The trial court further found that the mortgage transaction was both procedurally and substantively unconscionable. The trial court also found that the plaintiff and the Masottas violated TILA because they had failed to include the future assignment recording fees as a part of the finance charge. Based on the TILA violation, the trial court found that the defendant had executed a timely rescission pursuant to 15 U.S.C. § 1635 (a), which had terminated the plaintiff’s and the Masottas’ security interest in the property. The trial court determined that because the plaintiff and the Masottas had failed to accept the defendant’s rescission pursuant to the procedures of 15 U.S.C. § 1635 (b), the plaintiff and the Masottas were barred from foreclosing on the mortgage.

The trial court further ruled that the plaintiff and the Masottas violated § 36-2241 by charging the defendant a prepaid finance charge in excess of 10 percent of the principal amount of the loan. As a result of this violation, the trial court ordered the plaintiff and the Masottas to pay $2975 to the defendant. The trial court ruled that the violations by the plaintiff and the Masottas of TILA and § 36-224Z constituted a violation of CUTPA. The trial court awarded the defendant $20,000 in attorney’s fees stemming from the CUTPA violation and granted the defendant an injunction “against Family Financial Services, Inc., and the Masottas from pursuing now or hereafter any relief or foreclosure of the mortgage and the mortgage debt . . . .” This appeal followed.

I

The plaintiff and the Masottas first claim that the trial court improperly found that the Masottas were the makers of the loan. The plaintiff and the Masottas argue that the evidence does not support the trial court’s finding. We disagree.

“[W]here 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.” Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).

The trial court found that “[b]oth Masottas are the real parties in interest, acting under the aegis of Family Financial Services, Inc.” The trial court based that finding on the following evidence: (1) at trial, the attorney who had represented the plaintiff at the closing testified that the $44,000 loan amount came from Aglino Masotta and that none of it came from the plaintiff; (2) Andrew Forte, the plaintiffs vice president, responded to interrogatories by denying that the plaintiff ever sold or assigned the mortgage; and (3) Forte testified that the Masottas did not sign the document purportedly assigning their interest to the plaintiff and failed to swear before a notary public.

We conclude that the trial court’s finding is supported by evidence produced at trial and is not clearly erroneous. On the basis of the trial court’s findings and the record, we cannot conclude that the trial court improperly found that the Masottas were the makers of the loan in question.

II

The plaintiff and the Masottas next claim that the trial court improperly concluded that the mortgage assignment needed to be recorded. The plaintiff and the Masottas claim that General Statutes § 47-10 does not apply to mortgages. The plaintiff and the Masottas argue that the trial court improperly relied on § 47-10 to support its determination that the plaintiff lacked standing because it was not the holder of the mortgage debt. We disagree.

The following additional facts are relevant to this issue. On August 12, 1993, a pretrial hearing was held on the defendant’s motion to dismiss in which she claimed that the plaintiff lacked standing. After the pretrial hearing, the plaintiff amended its complaint to allege that the plaintiff had assigned the mortgage note and deed to Aglino Masotta and that on September 14, 1993, he assigned the note and deed back to the plaintiff. When the trial resumed on March 29, 1994, the defendant challenged the purported assignment of September 14, 1993, as invalid because Forte had forged the signatures of Aglino and Edward Masotta on that assignment. Forte purportedly had a power of attorney to sign real estate documents for the Masottas. In addition, the assignment in question disclosed an acknowledgment by a notary public, who was an employee of the plaintiff, to the effect that the Masottas had appeared personally before him and acknowledged that the assignment was their free act and deed. The trial court found, in fact, that neither of the Masottas had appeared before the notary public to be sworn. The trial court also found that Forte had forged the signatures of the Masottas. Finally, the trial court found that Forte had neither signed nor acknowledged the assignment, and that he did not place the power of attorney on the land records together with the assignment of September 14,1993, as required by General Statutes § 47-10.

General Statutes § 47-10 provides that “[n]o conveyance shall be effectual to hold any land against any other person but the grantor and his heirs, unless recorded on the records of the town in which the land lies. When a conveyance is executed by a power of attorney, the power of attorney shall be recorded with the deed, unless it has already been recorded in the records of the town in which the land lies and reference to the power of attorney is made in the deed.” (Emphasis added.) “Because the wording of § 47-10 has remained in essentially the same form since the 1800s, we may presume legislative acquiescence in our interpretation of the mortgage lien statute. ‘[I]ts subsequent nonaction may be understood as a validation of that interpretation.’ Phelps Dodge Copper Products Co. v. Groppo, 204 Conn. 122, 134, 527 A.2d 672 (1987), quoting Ralston Purina Co. v. Board of Tax Review, 203 Conn. 425, 439, 525 A.2d 91 (1987).” Farmers & Mechanics Savings Bank v. Garofalo, 219 Conn. 810, 817, 595 A.2d 341 (1991).

“Mortgages have always been regarded as conveyances of land within the meaning of the recording statute. . . . The assignment is in effect a conveyance of the land included in the mortgage. . . . That an assignment of a mortgage falls within the purview of the recording statute follows from the nature of such an instrument . . . .” (Citations omitted.) Second National Bank v. Dyer, 121 Conn. 263, 267-68, 184 A. 386 (1936); Farmers & Mechanics Savings Bank v. Garofalo, supra, 219 Conn. 816 n.8; Cottiero v. Ifkovic, 35 Conn. App. 682, 690, 647 A.2d 9, cert. denied, 231 Conn. 938, 651 A.2d 262 (1994). Our courts have clearly interpreted § 47-10 to apply to the assignment of mortgages. We conclude, therefore, that the trial court properly found that § 47-10 applies to the purported assignment by the Masottas to the plaintiff and that the assignment and the power of attorney needed to be recorded on the land records in order to be effective against the defendant.

Ill

The plaintiff and the Masottas next claim that the trial court improperly concluded that the mortgage loan transaction at issue was unconscionable. The plaintiff argues that the court lacked an evidentiary basis to support its finding of procedural and substantive uncon-scionability. We conclude from the facts as found by the trial court, and as supported by the evidence in the record, that the trial court correctly concluded that the mortgage transaction in question was unconscionable.

Our first consideration is the standard of review for a claim of unconscionability. “[T]he question of unconscionability is a matter of law to be decided by the court based on all the facts and circumstances of the case.” Iamartino v. Avallone, 2 Conn. App. 119, 125, 477 A.2d 124, cert. denied, 194 Conn. 802, 478 A.2d 1025 (1984); Cheshire Mortgage Service, Inc. v. Montes, 223 Conn. 80, 87, 612 A.2d 1130 (1992). Our review on appeal is not limited to determining whether there has been clear error. Cheshire Mortgage Service, Inc. v. Montes, supra, 88; Texaco, Inc. v. Goldart, 206 Conn. 454, 461, 538 A.2d 1017 (1988). “[T]he ultimate determination of whether a transaction is unconscionable is a question of law, not a question of fact, and . . . the trial court’s determination on that issue is subject to a plenary review on appeal. It also means, however, that the factual findings of the trial court that underlie that determination are entitled to the same deference on appeal that other factual findings command. Thus, those findings must stand unless they are clearly erroneous. Pan- dolphe’s Auto Parts, Inc. v. Manchester, [supra, 181 Conn. 221-22].” Cheshire Mortgage Service, Inc. v. Montes, supra, 88.

“The purpose of the doctrine of unconscionability is to prevent oppression and unfair surprise. J. Calamari & J. Perillo, Contracts (3d Ed.) § 9-40.” Edart Truck Rental Corp. v. B. Swirsky & Co., 23 Conn. App. 137, 142, 579 A.2d 133 (1990). “As applied to real estate mortgages, the doctrine of unconscionability draws heavily on its counterpart in the Uniform Commercial Code which, although formally limited to transactions involving personal property, furnishes a useful guide for real property transactions. Olean v. Treglia, 190 Conn. 756, 762, 463 A.2d 242 (1983); Hamm v. Taylor, 180 Conn. 491, 495, 429 A.2d 946 (1980).” Iamartino v. Avallone, supra, 2 Conn. App. 125. “As Official Comment 1 to § 2-302 of the Uniform Commercial Code suggests, ‘[t]he basic test is whether, in the light of the general commercial background and the commercial needs of the particular trade or case, the clauses involved are so one-sided as to be unconscionable under the circumstances existing at the time of the making of the contract.’ ” Hamm v. Taylor, supra, 495-96. Unconscionability is determined on a case-by-case basis, “taking into account all of the relevant facts and circumstances.” Cheshire Mortgage Service, Inc. v. Montes, supra, 223 Conn. 89; Hamm v. Taylor, supra, 495-96.

The trial court found as follows: (1) the defendant had a limited knowledge of the English language, was uneducated and did not read very well; (2) the defendant’s financial situation made it apparent that she could not reasonably expect to repay the second mortgage; (3) at the closing, the defendant was not represented by an attorney and was rushed by the plaintiffs attorney to sign the documents; (4) the defendant was not informed until the last moment that, as a condition of credit, she was required to pay one year’s interest in advance; and (5) there was an absence of meaningful choice on the part of the defendant. Finally, in determining unconscionability, the court also took into account the fact that the plaintiff failed to disclose to the defend- ' ant that the real lenders in this transaction were the Masottas. We conclude that these findings are adequately supported by the evidence in the record and are not clearly erroneous. On that basis, we conclude that the trial court properly determined that this transaction was proeedurally unconscionable.

The plaintiff and the Masottas next argue that the mortgage was not substantively unconscionable. The plaintiff and the Masottas argue that the defendant planned to sell her house and use the proceeds of that sale to make the balloon payment. The defendant testified that she attempted to sell the property before receiving the loan and that she thought about selling the property. She did not testify, however, that it was her plan to sell the property in order to pay off the mortgage.

The trial court found that the terms of the mortgage were unreasonably favorable to the plaintiff. The trial court also found that the defendant’s monthly income was $1126.67 and that she owed $1011 monthly to People’s Bank on her first mortgage. On the basis of those findings, the trial court concluded that it was obvious that the defendant would not be able to make the required balloon payment at the end of the year. Finally, the trial court found that the defendant lacked a reasonable opportunity to understand the terms of the contract. We conclude that the trial court’s findings are supported by the record and the determination of substantive unconscionability is appropriate.

IV

The plaintiff and the Masottas next claim that the language of No. 93-130 of the 1993 Public Acts (P.A. 93-130), is sufficiently clear to demonstrate the legislative intent that it applies to pending actions. The plaintiff and the Masottas argue that the legislature clearly and unequivocally intended to apply the amendment to pending actions by including the following language: “The provisions of this subsection shall apply to all loans negotiated before, on and after the effective date of this act.” P.A. 93-130, § 8. If P.A. 93-130 applies to this action, it would eliminate the defendant’s cause of action based on a violation of General Statutes (Rev. to 1991) § 36-224Í because the prepaid finance charge would be included within the principal amount of the loan and, therefore, the prepaid finance charge would no longer exceed 10 percent of the principal amount of the loan. Contra Cheshire Mortgage Service, Inc. v. Montes, supra, 223 Conn. 80. We disagree with the plaintiff and the Masottas’ claim.

In determining the intended effect of an enactment on earlier legislation, two questions must be asked. “ ‘First, was the act intended to clarify existing law or to change it? Second, if the act was intended to make a change, was the change intended to operate retroactively?’ ” State v. Magnano, 204 Conn. 259, 277, 528 A.2d 760 (1987), quoting Circle Lanes of Fairfield, Inc. v. Fay, 195 Conn. 534, 540, 489 A.2d 363 (1985).

In order to determine whether this public act should be characterized as clarifying legislation, we look to the legislative history to determine the legislative intent. State v. Magnano, supra, 204 Conn. 278. To the extent that legislative history can illustrate whether an act is clarifying legislation, the legislative history of P.A. 93-130 demonstrates that the legislature intended that act to clarify the definition of the term “principal amount of the loan” contained in § 36-224Z. Senator Martin M. Looney explained: “The bill deals with the clarification of the definition of principal amount of a loan and the calculation of points to include amounts financed.” 36 S. Proc., Pt. 6, 1993 Sess., p. 2089. Bob Focht, director of the consumer credit division of the state banking department, explained: “This bill would clarify that the principal amount of the loan, for purposes of calculating points, would be the gross loan amount the borrower is obligated to repay, including any prepaid finance charge and other charges which are financed.” 36 S. Proc., Pt. 1, 1993 Sess., p. 37.

Having decided that P.A. 93-130 is clarifying legislation, we do not reach the second question of whether the change was to apply retroactively. Where an amendment is intended to clarify the original intent of an earlier statute, it necessarily has retroactive effect. State v. Magnano, supra, 204 Conn. 284. We note, however, that the retroactive nature of clarifying legislation has limits. Id. It “must not operate in a manner that would unjustly abrogate vested rights.” Hartford v. Freedom of Information Commission, 201 Conn. 421, 426, 518 A.2d 49 (1986). A vested right is one that equates to legal or equitable title to the present or future enjoyment of property, or to the present or future enforcement of a demand, or a legal exception from a demand made by another. Manchester Environmental Coalition v. Stockton, 184 Conn. 51, 71, 441 A.2d 68 (1981); Rudewicz v. Gagne, 22 Conn. App. 285, 290, 582 A.2d 463 (1990). An enactment cannot be applied retroactively where, as here, a vested right intervenes. Id. In this situation, the clarifying legislation would produce a change in the substantial vested rights enjoyed by the defendant and would effectively deprive her of her cause of action under § 36-224L DeAlmeida v. M.C.M. Stamping Corp., 29 Conn. App. 441, 451, 615 A.2d 1066 (1992).

Our analysis of the legislative history of P.A. 93-130 further reveals that when the legislature considered the amendment, a question arose as to whether there were any individuals who might have a cause of action available, as a result of Cheshire Mortgage Service, Inc. v. Montes, supra, 223 Conn. 80, who would lose that right upon the amendment’s enactment. The response indicated a lack of knowledge on the part of the legislature concerning the defendant’s pending action. In addition, there is no express declaration in either the legislative history or the amendment declaring the legislature’s intent that the act should apply to pending actions. To apply this amendment retroactively, when the legislature clearly failed to contemplate its effect on the defendant’s pending action, would unjustly abrogate the defendant’s vested rights. We conclude that the trial court did not improperly refuse to apply P.A. 93-130 retroactively.

V

The plaintiff and the Masottas next claim that TILA does not negate the requirement of “tender back” to rescind a transaction. They argue that in order for the defendant to rescind the mortgage in question, she must restore the plaintiff to his position prior to entering into the loan agreement. The plaintiff and the Masottas argue that the defendant’s failure to restore the plaintiff to the status quo rendered the defendant’s attempt at rescission ineffective. We disagree.

The following additional facts found by the trial court are relevant to our resolution of this issue. In the July, 1990 and July, 1991 mortgage loan transactions, the plaintiff charged the defendant fees of $20 and $15, respectively, for the recording of the future assignments of the mortgage. The plaintiff failed to include as finance charges the amounts attributed to the future assignment recording fees. As a result of failing to include the assignment recording fees in the finance charges, the plaintiff underdisclosed the amount of the finance charges by a total of $35, thereby violating TILA, 15 U.S.C. § 1638 (a) (3). On June 4, 1993, the defendant, in writing, rescinded the mortgage transaction pursuant to 15 U.S.C. § 1635 (a) and (f). The plaintiff did not accept the defendant’s rescission. The plaintiffs failure to acknowledge the rescission or to take proper actions after receipt of the notice of rescission within the twenty day period allowed by statute, terminated its security interest and prevented the mortgage from being foreclosed.

Title 15 of the United States Code, § 1635 (a), provides in pertinent part that “the obligor shall have the right to rescind the transaction until . . . the delivery of the information and rescission forms required under this section together with a statement containing the material disclosures required under this subchapter ... by notifying the creditor, in accordance with regulations of the Board, of his intention to do so. . . .” After an obligor elects to exercise the right to rescind, the effect of that decision and the subsequent exchange of property is governed by § 1635 (b), which provides: “When an obligor exercises his right to rescind under subsection (a) of this section, he is not liable for any finance or other charge, and any security interest given by the obligor, including any such interest arising by operation of law, becomes void upon such a rescission. Within 20 days after receipt of a notice of rescission, the creditor shall return to the obligor any money or property given as earnest money, downpayment, or otherwise, and shall take any action necessary or appropriate to reflect the termination of any security interest created under the transaction. If the creditor has delivered any property to the obligor, the obligor may retain possession of it. Upon the performance of the creditor’s obligations under this section, the obligor shall tender the property to the creditor, except that if return of the property in kind would be impracticable or inequitable, the obligor shall tender its reasonable value. . . . The procedures prescribed by this subsection shall apply except when otherwise ordered by a court.” (Emphasis added.)

“The sequence of rescission and tender set forth in § 1635 (b) is a reordering of the common law mies governing rescission. Under common law rescission, the rescinding party must first tender the property that he has received under the agreement before the contract may be considered void. [17A Am. Jur. 2d, Contracts § 590 (1991)]. Once the rescinding party has performed his obligations, the contract becomes void and the rescinding party may then bring an action in replevin or assumpsit to insure that the non-rescinding party will restore him to the position that he was in prior to entering into the agreement, i.e., return earnest money or monthly payments and void all security interests. Id., [§ 604].” Williams v. Homestake Mortgage Co., 968 F.2d 1137, 1140 (11th Cir. 1992). “Under Connecticut law, as a condition precedent to rescission, the parties to a contract must be restored to their original position as nearly as possible.” Barco Auto Leasing Corp. v. House, 202 Conn. 106, 113, 520 A.2d 162 (1987). “Under § 1635 (b), however, all that the [obligor] need do is notify the creditor of his intent to rescind. The agreement is then automatically rescinded . . . .” Williams v. Homestake Mortgage Co., supra, 1140; Aquino v. Public Finance Consumer Discount Co., 606 F. Sup. 504, 507-508 (E.D. Pa. 1985).

We conclude that the trial court properly interpreted and applied 15 U.S.C. § 1635 (a) and (b). The tender of property is not required by § 1635 (b) as a condition preceding rescission. The notice given by the defendant properly rescinded the transaction. The failure of the plaintiff to accept the valid rescission by the defendant nullified the plaintiffs security interest. Because the plaintiffs security interest became void, it was barred from foreclosing on the mortgage. The trial court correctly concluded that TILA does not require tender back in order effectively to rescind the mortgage.

VI

The plaintiff and the Masottas claim finally that the trial court improperly awarded attorney’s fees to the defendant because it failed to hold an evidentiary hearing. The trial court determined that the plaintiff violated CUTPA by engaging in unfair, unethical, oppressive, and unscrupulous conduct. Because General Statutes § 42-110g (d) expressly permits the court to award attorney’s fees, the defendant clearly is entitled to such fees. The plaintiff and the Masottas argue, however, that the trial court’s award does not have an evidentiary basis. We agree.

Our Supreme Court has held that it is an “undisputed requirement that the reasonableness of attorney’s fees and costs must be proven by an appropriate evidentiary showing.” Barco Auto Leasing Corp. v. House, supra, 202 Conn. 121, quoting Hartford Electric Light Co. v. Tucker, 183 Conn. 85, 91, 438 A.2d 828 (1981). In Barco Auto Leasing Corp. v. House, supra, 121, the defendant’s attorneys submitted affidavits detailing the time spent on the case, the tasks performed and the fees charged. The plaintiff’s attorney objected to the admission of one of the affidavits and was overruled by the trial court, which allowed the affidavits to be filed but did not admit them as evidence. Id. Our Supreme Court concluded that “[t]he parties . . . were given no opportunity to address this issue at trial. . . . [T]he plaintiff was denied the undisputed right to litigate fully the reasonableness of the attorney’s fees sought by the defendants’ counsel”; id.; and remanded the case fully to address the issue at a further hearing.

The defendant raised the issue of an evidentiary hearing at trial. In response to this, the trial court decided to postpone such a hearing until after a decision in the case was made. Although the plaintiff, the Masottas and the defendant submitted sworn affidavits of attorney’s fees to the trial court, no opportunity was ever presented for either side to litigate that issue. The issue of attorney’s fees must be fully addressed at a further hearing.

The judgment is reversed only as to the award of attorney’s fees and the case is remanded for further proceedings.

In this opinion the other judges concurred.

       The appellants did not appeal' at oral argument and are deemed to have waived it.

       The trial court dismissed the plaintiffs foreclosure action based on a finding of lack of standing, leaving the plaintiff as counterclaim defendant. Pursuant to Practice Book § 102 and General Statutes § 52-110, the trial court granted the defendant’s morion to cite in the Masottas as counterclaim defendants. The appellants in this case are the plaintiff and the Masottas.

       Public Acts 1993, No. 93-130, provides in pertinent part: “(8) ‘Principal amount of the loan’ means the gross loan amount the borrower is obligated to repay including any prepaid finance charge and other charges which are financed. The provisions of this subsection shall apply to all loans negotiated before, on and after the effective date of this act.” See General Statutes § 36a-510a (5).

         See 15 U.S.C. §§ 1601 through 1667e.

       That payment was supposed to be held in an escrow account.

       General Statutes (Rev. to 1991) § 36-224/, provides in pertinent part: “(a) No person engaged in the secondary mortgage loan business in this state as a lender or a broker, including any licensee under this chapter, and any person who is exempt from licensing under section 36-224c, may (1) charge, impose or cause to be paid, directly or indirectly, as an incident to or a condition of the extension of credit in any secondary mortgage loan transaction, any loan fees, points, commissions, transaction fees or similar prepaid finance charges determined in accordance with chapter 657 and regulations adopted thereunder which exceed in the aggregate ten per cent of the principal amount of the loan . . . .”

       General Statutes § 37-4 provides: “No person and no firm or corporation or agent thereof, other than a pawnbroker as provided in section 21-44, shall, as guarantor or otherwise, directly or indirectly, loan money to any person and, directly or indirectly, charge, demand, accept or make any agreement to receive therefor interest at a rate greater than twelve per cent per annum.”

       General Statutes § 37-9 provides in pertinent part: “The provisions of sections 37-4, 37-5 and 37-6 shall not affect ... (3) any bona fide mortgage of real property for a sum in excess of five thousand dollars . . . .”

       See General Statutes §§ 42-110a through 42-110q.

       Despite the plaintiffs suggestion that our standard of review for this claim is abuse of discretion, we apply the well established clearly erroneous standard.

       In Cheshire Mortgage Service, Inc., our Supreme Court found that the lender miscalculated the principal amount of the loan. Cheshire Mortgage Service, Inc. v. Montes, supra, 223 Conn. 103-105. The court reached this decision because the lender included the prepaid finance charge within the principal amount of the loan. Id. The court found that the prepaid finance charge should be categorized as interest and not principal. Id., 103 n.29. As a result of this finding, the court held that the lender violated General Statutes (Rev. to 1991) § 36-224Z (a) because the prepaid finance charge exceeded 10 percent of the principal amount of the loan, the maximum allowable under the statute. Cheshire Mortgage Service, Inc. v. Montes, supra, 104-105 (court calculated prepaid finance charge at 11 percent). The passage of P.A. 93-130, changes the result in Cheshire Mortgage Service, Inc., by allowing the prepaid finance charge to be included within the principal amount of the loan rather than in the interest.

       The plaintiff does not challenge the trial court’s finding that the plaintiff violated TILA.

       Title 15 of the United States Code, § 1635 (f), provides: “An obligor’s right of rescission shall expire three years after the date of consummation of the transaction or upon the sale of the property, whichever occurs first, notwithstanding the fact that the information and forms required under this section or any other disclosures required under this part have not been delivered to the obligor, except that if (1) any agency empowered to enforce the provisions of this subchapter institutes a proceeding to enforce the provisions of this section within three years after the date of consummation of the transaction, (2) such agency finds a violation of this section, and (3) the obligor’s right to rescind is based in whole or in part on any matter involved in such proceeding, then the obligor’s right of rescission shall expire three years after the date of consummation of the transaction or upon the earlier sale of the property, or upon the expiration of one year following the conclusion of the proceeding, or any judicial review or period for judicial review thereof, whichever is later.”

       Other courts, when faced with the similar situation of a violation of the federal TILA, a debtor properly rescinding pursuant to § 1635 (b) and a nonresponding creditor, have responded similarly to the trial court in this case. Those courts have excused the debtor from repayment of any outstanding loan balance. Gill v. Mid-Penn Consumer Discount Co., 671 F. Sup. 1021 (E.D. Pa. 1987), aff'd, 853 F.2d 917 (3d Cir. 1988); In re Gurst, 79 B.R. 969 (E.D. Pa. 1987); see In re Michel, 140 B.R. 92 (E.D. Pa. 1992). In Gill v. Mid-Penn Consumer Discount Co., supra, 1026, the court found that “15 U.S.C. § 1635 (b) provides that an obligation of the consumer to tender property received from the creditor arises only if the creditor appropriately reacts to the rescission request by satisfying its security interests within 20 days. The creditor’s failure to comply with such a valid rescission request obviates the consumer’s obligation.” In In re Michel, supra, 101, the court did not eliminate the debtors’ indebtedness, but acknowledged that § 1635 (b) “provide[s] [the court] with [such] statutory authority . . . where creditors have tried to deceive or cheat the consumer.”

       General Statutes § 42-11 Og (d) provides in pertinent part: “In any action brought by a person under this section, the court may award, to the plaintiff, in addition to the relief provided in this section, costs and reasonable attorneys’ fees based on the work reasonably performed by an attorney and not on the amount of recovery. . .

       We note that Bizzoco v. Chinitz, 193 Conn. 304, 310-11, 476 A.2d 572 (1984), and Guaranty Bank & Trust Co. v. Dowling, 4 Conn. App. 376, 386, 494 A.2d 1216, cert. denied, 197 Conn. 808, 499 A.2d 55 (1985), may hold otherwise. We have followed Barco Auto Leasing Corp. v. House, supra, 202 Conn. 121, because it is the later case on the subject, it is also a CUTPA case and the facts of the present case most nearly approximate those of Barco.

       The trial court stated: “Well, I think the fairest thing to do is to wait until we get a decision, except for the question of attorney’s fees, either way on both sides and then I’ll give you an opportunity, both of you, to come in with evidence on the question of attorney’s fees.”


source: Caselaw Access Project

author: FOTI, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. ALLAN DEGOURVILLE
    (13289)
    Dupont, C. J., and Foti and Lavery, Js.

      Argued March 21
    officially released June 18, 1996

      Melvin A. Simon, special public defender, with whom, on the brief, was Stephen V. Moran, assistant public defender, for the appellant (defendant).

      James M. Ralls, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Thomas Prior, assistant state’s attorney, for the appellee (state).
   FOTI, J.

The defendant appeals from the judgment of conviction, following his plea of nolo contendere, of possession of narcotics with intent to sell in violation of General Statutes § 21a-278 (b). The defendant claims that the trial court improperly denied his motion to suppress evidence obtained in violation of his rights under the fourth and fourteenth amendments to the United States constitution and article first, §§ 7 and 8, of the Connecticut constitution. We affirm the judgment of the trial court.

Following an evidentiary hearing, the trial court found the following facts. On March 4,1993, at approximately 8:05 a.m., Detectives Raymond Cruz and James Chrustal of the Hartford police department were called to the site of a fatal motor vehicle accident at the intersection of West Preston and Newbury Streets in the city of Hartford. Upon arriving, they were advised that a 1983 Jeep had been traveling east on West Preston Street when it was struck by a vehicle traveling south on Newbury Street. The southbound vehicle ran a stop sign and struck the rear of the Jeep, causing it to roll over and the operator to be ejected, which resulted in his death. The southbound vehicle fled the accident scene but was followed by an eyewitness who secured the license number. The eyewitness described the fleeing automobile as a dark blue vehicle with Connecticut registration plate 801-HTU. Police at the collision scene collected debris from the accident, photographed the scene, took measurements and conducted other routine police investigative procedures.

While at the accident site, the Hartford police detectives received a message from the Wethersfield police department that during normal surveillance of an area at 66 Village Drive in Wethersfield they observed a vehicle matching the description of the evading vehicle. The Wethersfield police described the vehicle as having considerable damage to the front end on the driver’s side, consistent with the fleeing vehicle. Subsequently, the detectives went to that location and compared fragments of the bumper and light assembly with the suspect automobile. The comparisons indicated that this vehicle was the one involved in the fatal hit and run accident.

The vehicle at 66 Village Drive did not bear Connecticut registration plate 801-HTU but rather a Massachusetts license plate secured to the car by one screw. From evidence obtained at the scene, the officers determined that the owner of the vehicle was at that address in apartment 305. The detectives proceeded to the apartment and knocked on the door. The defendant, Allan Degourville, answered the door and invited the police officers into his apartment.

The defendant admitted that the damaged vehicle was his. He indicated that he did not know who had been driving it or how it was damaged, and did not have the keys to the vehicle as they were in the possession of his girlfriend who had recently left his apartment. The defendant’s answers were evasive and he appeared nervous. At that time, the officers saw automobile keys on a countertop near the door of the apartment.

The officers then read the defendant his rights. The defendant agreed to accompany the detectives to police headquarters to answer questions regarding the damage to the motor vehicle. As the Hartford detectives were preparing to exit the apartment, Cruz received a message from the Wethersfield police department that a blue and white license plate bearing letters HTU could be seen in a bedroom window in the defendant’s apartment. Cruz and Chrustal left the apartment to return to Hartford to prepare and obtain a search and seizure warrant for the defendant’s apartment in order to seize license plate 801-HTU as well as all papers associated with the registration of the vehicle. The police officers believed that these items constituted evidence of negligent homicide, evading responsibility and misuse of license plates.

Moments prior to when Cruz and Chrustal left the apartment, Sergeant Michael Manzi of the Hartford police department arrived at 66 Village Drive and discussed the situation with Cruz. Manzi determined that the apartment should be secured to prevent the removal or destruction of evidence. Officer Jeffrey Falk of the Wethersfield police department remained in the apartment, along with Manzi and another officer. Manzi instructed the other officers to do a protective sweep of the apartment for safety reasons. Manzi went to the west side of the apartment where a bedroom with a walk-in closet was located. He entered the closet and saw a jacket on a hanger with a large bulky item in the coat pocket. Manzi indicated that it “appeared to be contraband . . . cocaine in the coat pocket.” Having determined that there was no threat to his safety, he returned to the kitchen where he waited until the warrant arrived. Manzi had ordered the protective sweep “simply and solely to see if there was anyone else in the apartment who could be a threat to the officers in the apartment.” Manzi notified the officers from the Wethersfield police department of what he had observed in the bedroom closet so that they would be able to obtain a separate search warrant to search for the presence of drugs or contraband.

Detective Mark Miele of the Wethersfield police department also arrived at the apartment during the early part of the investigation. Miele had intelligence from other sources that the defendant might be involved with drugs. This information was not communicated to Cruz or Chrustal. Miele did not enter the apartment until later in the afternoon, after the Hartford police had obtained a search warrant. When Miele entered the apartment, he was shown the closet in the bedroom. The closet was not crowded and he observed a tan colored jacket that he assumed to be a male’s jacket. Inside the lower left pocket of the jacket were two or three large plastic bags containing “enough substance to actually weigh the jacket down.” Field tests of the substance for cocaine yielded positive results. The cocaine and other evidence of illegal drug transactions were subsequently seized by the Wethersfield police with the separate warrant they had obtained.

The trial court found it undisputed that the defendant consented to the officers’ entering his apartment and that he never withdrew his consent. The bedroom and closet were immediately adjoining the place where the defendant had allowed the officers to enter and where they remained to await the search warrant. The trial court further found that the officers were justifiably concerned about their safety, and that they had independently obtained sufficient information to obtain a search warrant for the motor vehicle offense.

In denying the defendant’s motion, the trial court concluded that the contraband was observed during a lawful protective sweep, and, in any event, the evidence would inevitably have been discovered during the execution of the search warrant for the motor vehicle offense.

The defendant argues that (1) the evidence was not obtained during a lawful protective sweep, and (2) under both the federal and state constitutions, securing the premises from within, to preserve the status quo, precludes admission of evidence discovered independently.

We conclude that the trial court correctly applied the independent source doctrine to the facts found, and properly determined that the evidence seized would have inevitably been discovered, under the circumstances of this case. We note initially that the two doctrines are closely related and possess a functional similarity. State v. Rogers, 18 Conn. App. 104, 114, 556 A.2d 1030 (1989), citing Nix v. Williams, 467 U.S. 431, 443-44, 104 S. Ct. 2501, 81 L. Ed. 2d 377 (1984). The inevitable discovery doctrine is an extrapolation from the independent source doctrine. Murray v. United States, 487 U.S. 533, 539, 108 S. Ct. 2529, 101 L. Ed. 2d 472 (1988).

“Under the inevitable discovery rule, evidence illegally secured in violation of the defendant’s constitutional rights need not be suppressed if the state demonstrates by a preponderance of the evidence that the evidence would have been ultimately discovered by lawful means. ... To qualify for admissibility the state must demonstrate that the lawful means which made discovery inevitable were possessed by the police and were being actively pursued prior to the occurrence of the constitutional violation.” (Citation omitted.) State v. Badgett, 200 Conn. 412, 433, 512 A.2d 160, cert. denied, 479 U.S. 940, 107 S. Ct. 423, 93 L. Ed. 2d 373 (1986). The inevitable discovery exception to the exclusionary rule is premised on the concept of fairness. “Fairness can be assured by placing the State and the accused in the same positions they would have been in had the impermissible conduct not taken place.” Nix v. Williams, supra, 467 U.S. 447.

The trial court found significant that the defendant did not challenge any police procedure or information contained in the affidavit and application for the search and seizure warrant dealing with the motor vehicle offense. Even if we assume, arguendo, that the police had established a perimeter stakeout, and not conducted the protective sweep, the evidence now challenged would nevertheless have been discovered and seized as contraband pursuant to the first warrant. The warrant obtained in connection with the motor vehicle offense has no dependency on, or correlation to the alleged constitutionally invalid protective sweep. While the trial court made no such specific findings, we find the record is adequate to reach such a conclusion. See State v. Roseboro, 221 Conn. 430, 446, 604 A.2d 1286 (1992); State v. Vargas, 34 Conn. App, 492, 500, 642 A.2d 47, cert. denied, 230 Conn. 907, 644 A.2d 921 (1994).

The trial court found that sufficient independent information had been gathered by the police to obtain the search warrant for vehicle registration papers. Moreover, the trial court determined that the police detectives left to obtain that warrant prior to the protective sweep, and prior to any determination ever being made to secure the premises.

We conclude that the trial court properly found that the independent source that inevitably would have revealed the presence of cocaine in the defendant’s apartment was the search warrant associated with the motor vehicle accident, the validity of which has not been challenged. The evidence properly was not suppressed because it was procured on the basis of sufficient information obtained independently of the alleged improper protective sweep. Having so concluded, we find it unnecessary to address the issue of whether the prewarrant protective sweep of the defendant’s premises violated either his state or federal constitutional rights against unreasonable searches.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plea was entered conditioned on the right to take an appeal pursuant to General Statutes § 54-94a and Practice Book § 4003.

       The Wethersfield police obtained this information from an anonymous phone call.

       The question of when a remand is necessary for further findings on the issue of inevitable discovery is presently pending in the Supreme Court. State v. Rodriguez, 235 Conn. 939, 669 A.2d 377 (1995).

       The inevitable discovery exception to the exclusionary rule is recognized by both our state and federal courts.


author: SPEAR, J.

text:
    STATE OF CONNECTICUT v. ONE 1993 BLACK KENWORTH W-900 TRUCK AND ONE TRAILER
    (14467)
    Spear, Ilennessy and Cretella, Js.

      Argued March 19
    officially released June 18, 1996

      Milo J. Altschuler, with whom, on the brief, was Martin O’Neill, for the appellant (defendant owner).

      Kimberly P. Massicotte, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Joseph Rubin, assistant attorney general, for the appellee (state).
   SPEAR, J.

The defendant, Michael Pellegrino, is the owner of a 1993 black W-900 Kenworth Truck and attached trailer (vehicle) that were the subject of in rem proceedings by the state pursuant to General Statutes § 22a-250a. He appeals from the judgment of the trial court ordering the forfeiture of the vehicle. On appeal, he claims that the trial court improperly (1) found that his vehicle was seized as a result of a lawful arrest, (2) found that, in a forfeiture action, the appropriate burden of proof is by a preponderance of the evidence, and (3) failed to find that the forfeiture of his vehicle constituted an excessive fine in violation of the eighth amendment to the United States constitution. We affirm the judgment of the trial court.

The trial court found the following relevant facts. In the early morning of October 26,1994, Bridgeport police officer Juan Gonzalez observed the defendant behind a store on Main Street in Bridgeport. Gonzalez observed that the defendant was unloading “approximately fifteen to twenty feet” of debris from his vehicle. The debris consisted of construction and demolition material such as shingles, wood and roofing materials. The vehicle was parked in such a way that it had to have been backed in.

The trial court also found that, at the scene, the defendant made various inconsistent statements to police officers evidencing a consciousness of guilt. Although the trial court did not discuss the content of the statements, we note that the transcript shows that the defendant first told Officer Vincent Ingrassia that he had stopped his vehicle because a passenger had alerted him that material was spilling from the back. Ingrassia further testified that, in response to the defendant’s statement, he drove the route that the defendant had traveled but could not locate any debris. Other testimony revealed that the defendant told an emergency response coordinator from the department of environmental protection that the debris was from a demolition project in Jamaica, New York, and was destined for RESCO, a Bridgeport incineration facility that operates in accordance with environmental laws. The defendant, however, did not produce, upon request, the bill of lading required to dump material at RESCO. In addition, the RESCO plant manager testified that the facility did not accept demolition debris.

Gonzalez arrested the defendant on the morning of October 26, 1994, and issued him a misdemeanor summons. The summons listed the offense as “prohibited dumping” and cited General Statutes § 22a-250 (b), which provides that “[a]ny person who violates any provision of subsection (a) of this section shall be deemed to have committed an infraction.” (Emphasis added.) Section 22a-250 (a), however, governs prohibited littering and not prohibited dumping. At the approximate time that the defendant was issued the summons, his vehicle was seized.

On November 3, 1994, the defendant was charged in a substitute information with illegal dumping in violation of General Statutes § 22a-226a. On that day, the state also filed a substitute complaint pursuant to General Statutes § 22a-250a for forfeiture of the vehicle. In the complaint, the state alleged that the vehicle was used as a means of committing a violation of §§ 22a-250 (c) and 22a-250 (d). The trial court, in ordering that the vehicle be forfeited to the state, found that the defendant was arrested for a misdemeanor, that the vehicle was seized as a result of a lawful arrest, and that the appropriate burden of proof in a forfeiture action was a preponderance of the evidence. The trial court made no finding with respect to the defendant’s claim that the forfeiture of the vehicle constituted an excessive fine in violation of the eighth amendment to the United States constitution. This appeal followed.

I

The defendant first challenges the trial court’s finding that the vehicle was seized as a result of a lawful arrest. Section 22a-250a (a) provides that “any vehicle used ... as a means of committing a violation of any of the provisions of section 22a-208a, section 22a-208c, subsection (c) or (d) of section 22a-250 or section 22a-252, [may be] seized as a result of a lawful arrest We must initially decide whether the defendant was lawfully arrested.

The defendant argues that on the date of the offense, he was charged only with § 22a-250 (b), an infraction violation, and, therefore, he could not be lawfully arrested because, pursuant to General Statutes § 51-164n (e), “[a] summons for the commission of an infraction . . . shall not be deemed to be an arrest . . . .” See State v. Zyko, 1 Conn. App. 517, 518, 473 A.2d 337, cert. denied, 193 Conn. 804, 475 A.2d 1104 (1984). The state counters that the notation of subsection (b) on the misdemeanor summons was an error that was properly cured by the filing of a substitute information and that this initial error should not preclude a finding that the arrest was lawful. We agree with the state.

“ ‘Before the commencement of trial, a prosecutor has broad authority to amend an information under Practice Book § 623.’ ” State v. Snead, 41 Conn. App. 584, 590, 677 A.2d 446 (1996). Consistent with this authority, a prosecutor may file a substitute information where an error or defect exists in the summons provided that the substantive rights of the defendant are not prejudiced. In the present case, the state filed a substitute information to correct an obvious error in the summons. The officer recorded the statute number as § 22a-250 (b), but cited “prohibited dumping” as the offense. The statutes governing prohibited dumping, however, are codified in § 22a-250 (c) and (d) whereas § 22a-250 (b) deals exclusively with prohibited littering. It is, thus, readily apparent that the officer made an error when recording the applicable statutory provision in the summons.

The defendant claims in his brief that despite this error, the state may charge him only with the statutory provision that appears on the face of the original summons. He points, however, to no authority, and we find none, that prohibits the state from charging a defendant with an offense merely because the statutory provision that codifies the offense was not properly recorded on the original summons. On the contrary, “[t]he fact that the officer may have not properly named the offense for which the arrest was made does not invalidate an arrest ... if the officer had probable cause to make an arrest [on the correct charge].” United States v. Story, 463 F.2d 326, 328-29 (8th Cir.), cert. denied, 409 U.S. 988, 93 S. Ct. 343, 34 L. Ed. 2d 254 (1972). The trial court found that “there was, in fact, sufficient probable cause to arrest the defendant” for violating the statutes that prohibit unlawful dumping. We agree.

The requirement that a police officer have probable cause to make a misdemeanor arrest without a warrant is found in General Statutes § 54-lf (a). That statute provides that “[a]n arrest for a misdemeanor can be made by [a police officer] . . . without previous complaint and warrant when the person arrested is taken or apprehended in the act .... The essential feature of an arrest of one taken or apprehended in the act ... is that one or more of the acts constituting the crime must have occurred in the presence of the officer. An accused is lawfully taken or apprehended in the act if the circumstances observed by the officer preceding the arrest, viewed in the light of common knowledge and his own training and experience, gave Mm probable cause to believe that a crime was being, or had just been, committed.” (Citations omitted; emphasis added; internal quotation marks omitted.) State v. DelVecchio, 149 Conn. 567, 574-75, 182 A.2d 402 (1962), quoting General Statutes § 54-lf (a).

Our standard for reviewing a trial court’s determination of the existence of probable cause is well established. “[W]here 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 [court’s] decision; where the factual basis of the court’s decision is challenged we must determine whether the facts set out in the . . . 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.) State v. Trine, 236 Conn. 216, 237-38, 673 A.2d 1098 (1996); State v. Royce, 29 Conn. App. 512, 516, 616 A.2d 284 (1992).

The trial court concluded that Gonzalez had probable cause to believe that the defendant was in the act of committing a crime. The trial court based its conclusion on its factual findings that (1) the defendant’s vehicle contained in excess of one cubic foot of debris, (2) Gonzalez observed the defendant unloading “approximately fifteen to twenty feet” of debris from his vehicle, (3) the defendant intentionally backed his vehicle into a position so that he could dump debris from the rear of his vehicle, and (4) the defendant offered inconsistent statements to officers at the scene. We hold that these findings are not clearly erroneous and that the trial court properly found that the arrest of the defendant was lawful.

Because we determine that the defendant was lawfully arrested and that his vehicle was used as a means of committing a violation of § 22a-250 (c) or (d), we conclude that his vehicle was properly seized pursuant to § 22a-250a.

II

The defendant also challenges the trial court’s finding that, in a forfeiture action, the appropriate burden of proof is by a preponderance of the evidence.

Section 22a-250a (b) provides that in cases where the state seeks the forfeiture of a vehicle used in the violation of environmental laws, the state “shall have the burden of proving all material facts by a preponderance of the evidence.” (Emphasis added.) The language of the statute is patently clear. “[I]f the language of a statute is plain and unambiguous, we need look no further than the words themselves . . . .” State v. Denby, 235 Conn. 477, 481, 668 A.2d 682 (1995). We conclude that the words in the statute are plain and unambiguous, and, therefore, the trial court appropriately required the state to prove the material facts by a preponderance of the evidence.

III

The defendant last claims that the trial court improperly failed to find that the forfeiture of his vehicle constituted an excessive fine in violation of the eighth amendment to the United States constitution. Because the defendant has not furnished us with an adequate record, we decline to review this claim.

The determination of whether a fine is excessive necessarily involves a question of fact properly reserved for the trial court. In a forfeiture proceeding where the state seeks to seize a vehicle, a finding of excessiveness must turn on a factual predicate, namely, the value of the seized vehicle. “In order to review an alleged error of law that has evidentiary implications, we must have before us the evidence that is the factual predicate for the legal issue that the appellantfs] [ask] us to consider. ” (Internal quotation marks omitted.) Commissioner of Health Services v. Youth Challenge of Greater Hartford, Inc., 206 Conn. 316, 322, 537 A.2d 480 (1988).

At trial, counsel for the defendant sought to question the defendant as to the value of the vehicle. The trial court sustained an objection to the inquiry. Counsel, however, did not seek to make an offer of proof. “It is the appellant’s burden to create an adequate appellate record to support his claim. . . . The defendant has failed to meet this burden. If he wanted to provide this court with an adequate appellate record, he should have presented an offer of proof. An offer of proof, properly presented, serves three purposes. First, it should inform the court of the legal theory under which the offered evidence is admissible. Second, it should inform the trial judge of the specific nature of the offered evidence so the court can judge its admissibility. Third, it thereby creates'a record adequate for appellate review.” (Citation omitted; internal quotation marks omitted.) State v. Denby, 35 Conn. App. 609, 618, 646 A.2d 909 (1994), aff'd, 235 Conn. 477, 481, 668 A.2d 682 (1995).

Moreover, in issuing its decision, the trial court stated that “[t]his court shall not rule on the constitutionality claim of the forfeiture statute in its ruling today . . . [because] I don’t believe it’s been properly presented . . . .” The defendant filed a motion for articulation on June 13,1995, in which he requested that the trial court articulate its decision “by stating the basis of its conclusion that it would not rule on the constitutionality claim of the forfeiture statute on the basis that it had not been properly presented.” The trial court denied the motion. The defendant, however, failed to file a motion for review pursuant to Practice Book § 4054.

Similar to the defendant in Dime Savings Bank of Wallingford v. Cornaglia, 33 Conn. App. 549, 554-55, 636 A.2d 1370, cert. granted, 229 Conn. 907, 640 A.2d 120 (1994), the defendant in the present case “did nothing to perfect the record. ‘[He] could have sought review by this court of the adequacy of the trial court’s response pursuant to Practice Book § 4054.’ . . . [He] elected not to do so.” (Citation omitted.) “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 ... 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 Barnes v. Barnes, 190 Conn. 491, 493 n.2, 460 A.2d 1302 (1983).

“Because it is the appellant’s responsibility to provide this court with an adequate record for review . . . we will not remand a case to correct a deficiency the appellant should have remedied.” (Citations omitted; internal quotation marks omitted.) Buchetto v. Haggquist, supra, 17 Conn. App. 549; see also Rogozinski v. American Food Service Equipment Corp., 34 Conn. App. 732, 735 n.5, 643 A.2d 300 (1994). We, therefore, decline to review the defendant’s eighth amendment claim because he has not provided us with an adequate record.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 22a-250a provides in pertinent part: “Forfeiture of vehicles used in violation of certain environmental laws, (a) When any vehicle used as a means of disposing of hazardous waste without a permit . . . or as a means of committing a violation of any of the provisions of section 22a-208a, section 22a-208c, subsection (c) or (d) of section 22a-250 or section 22a-252, has been seized as a result of a lawful arrest or lawful search, pursuant to a criminal search and seizure warrant issued under authority of section 54-33c, which the state claims to be a nuisance and desires to have destroyed or disposed of in accordance with the provisions of this section, the judge or court issuing any such warrant or before whom the arrested person is to be arraigned shall, within ten days after such seizure, cause to be left with the owner of . . . the vehicle so seized . . . a summons notifying the owner and any such other person claiming such interest and all others to whom it may concern to appear before such judge or court . . .

       General Statutes § 22a-250 (a), which defines the offense of littering, provides in pertinent part that “[n]o person shall throw, scatter, spill or place or cause to be blown, scattered, spilled, thrown or placed, orothei'wise dispose of any litter upon any public property in the state or upon private property in this state not owned by him . . . .” (Emphasis added.)

       General Statutes § 22a-226a provides in pertinent part: “Any person who knowingly violates . . . subsection (c) or (d) of section 22a-250 . . . shall be fined not more than twenty-five thousand dollars per day for each day of the violation or imprisoned not more than one year or both. . . .”

       General Statutes § 22a-250 (c) provides in pertinent part: “No person shall dump, as defined in subdivision (12) of section 22a-248, any material upon any public property in the state or upon private property in this state not owned by him except when such property is designated by the state or any political subdivision thereof for dumping and such person is authorized to use such property or such property is a licensed facility for such purpose. . . (Emphasis added.) General Statutes § 22a-248 (12) defines “dump” as discarding “(A) more than one cubic foot in volume of litter at one time or (B) furniture, garbage bags or contents thereof or other similar materials. Material which has been placed at a location with a.n intent to leave it indefinitely at such location, or material which has not been removed from a location within forty-five days, is deemed discarded.”

       General Statutes § 22a-250 (d) provides in pertinent part: “No person shall dump, as defined in this subsection, any material upon any public property in the state or upon private property in this state not owned by him except when such property is designated by the state or any political subdivision thereof for dumping and such person is authorized to use such property or such property is a licensed facility for such purpose. ... As used in this subsection ‘dump’ means to discard automobiles or automobile parts, large appliances, tires, bulky waste, hazardous waste as defined in section 22a-115, or any other similar material.” (Emphasis added.)

       We note that the trial court issued i1s decision orally yet failed to sign the transcript of the decision in contravention of Practice Book § 4059 (a). That section provides that if the decision of the court is presented orally, “the decision shall be recorded by a court reporter and, if there is an appeal, the trial judge shall order the decision transcribed and the transcript of the decision shall be signed by the trial judge and filed in the trial court clerk’s office.” (Emphasis added.) Section 4059 (b) further provides that “[i]f the trial judge fails to comply with paragraph (a), the appellant may file with the appellate clerk a notice [of noncompliance]. . . . The trial court shall thereafter comply with paragraph (a).” In the present case, despite the trial court’s failure to comply with § 4059 (a), the defendant never filed a notice of noncompliance seeking the trial court to comply with our rules of prad ice. “The parties [however] relied on this transcript in their briefs and at oral argument. While we do not condone this deviation from the rules of practice, we may disregard certain procedural irregularities and treat the case as the parties have treated and presented it.” Askinazi v. Askinazi, 34 Conn. App. 328, 333 n.4, 641 A.2d 413 (1994).

       Practice Book § 623 provides in pertinent part that “[i]f the trial has not commenced, the prosecuting authority may amend the information, or add additional counts, or file a substitute information. . . .”

       See footnote 4.

       See footnote 5.

       See footnote 2 and accompanying text.

       Practice Book § 4054 provides in pertinent part: “Any party aggrieved by the action of the trial judge as regards . . . articulation under Sec. 4051 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. . .


author: DUPONT, C. J.

text:
    CARL J. HERZOG FOUNDATION, INC. v. UNIVERSITY OF BRIDGEPORT
    (14623)
    Dupont, C. J., and Foti and Lavery, Js.
    Argued February 29
    officially released June 25, 1996

      John F. Lambert, for the appellant (plaintiff).

      Frederick S. Gold, with whom was Ellen A. Jawitz, for the appellee (defendant).
   DUPONT, C. J.

The plaintiff, Carl J. Herzog Foundation, Inc., appeals from the judgment of the trial court dismissing its action on the ground that it lacked standing to enforce the provisions of a charitable gift. The issue on appeal is whether the Connecticut Uniform Management of Institutional Funds Act (CUMIFA); General Statutes §§ 45a-526 through 45a-534; provides standing for the donor of a restricted charitable gift to seek to enforce the restriction when the governing board of the donee of that gift has not received the written consent of the donor to deviate from the restriction.

The plaintiff commenced an action against the defendant, University of Bridgeport, seeking injunctive and other relief in connection with a gift made by it to the defendant. The plaintiff alleged in its revised complaint that prior to August 12,1986, it made various grants to the defendant “to provide need-based merit scholarship aid to disadvantaged students for medical related education.” On August 12, 1986, the plaintiff agreed, by letter, to participate in a matching grant program that would provide need-based merit scholarships to disadvantaged students for medical related education on a continuing basis. On September 9, 1986, the defendant wrote a letter accepting the offer of a matching grant of up to $250,000. Over a period of time, the defendant raised the necessaiy $250,000, which the plaintiff matched in accordance with the agreement. The plaintiff transferred $144,000 on June 26, 1987, and $106,000 on June 28, 1988, to the defendant. The grants were used to provide scholarships to students in the defendant’s nursing program. On November 21, 1991, however, the plaintiff was informed that the defendant had closed its nursing school on June 20, 1991.

Pursuant to the provisions of CUMIFA, the plaintiff alleged that the defendant was an “institution” within the meaning of General Statutes § 45a-527 (1), that the matching grant constituted “institutional funds” within the meaning of § 45a-527 (2), and that the letter of August 12, 1986, which set forth the restrictions and conditions of said grant, constituted a “gift instrument” as defined in § 45a-527 (6). See Yale University v. Blumenthal, 225 Conn. 32, 621 A.2d 1304 (1993).

The plaintiffs alleged injury is that the funds are no longer being used for their specified purpose. Paragraph fourteen of the revised complaint states: “The [plaintiff] has been given to understand and believes that the said institutional funds have been co-mingled with the general funds of the [defendant], that said institutional funds are not being used in accordance with the ‘Gift Instrument’ under which said institutional funds were transferred to [the defendant], and that said institutional funds have in fact been spent for general purposes of [the defendant].”

The plaintiff requested a temporary and permanent injunction, ordering the defendant “to segregate from its general funds matching grants totaling $250,000,” an accounting for the use of the fund from the date of receipt until present, and a reestablishment of the fund in accordance with the purposes outlined in the gift instrument, and, in the event that those purposes could not be fulfilled, to revert the funds and direct them to the Bridgeport Area Foundation, which is prepared to administer the funds in accordance with the original agreement.

The defendant moved to dismiss the suit for lack of subject matter jurisdiction on the ground that the plaintiff lacked standing. The trial court held that the act did not provide a donor with the right to enforce restrictions contained in a gift instrument, and, therefore, the plaintiff lacked standing to bring suit. The trial court noted that the attorney general, pursuant to General Statutes § 3-125, could bring suit to enforce the gift, and it dismissed the action.

A motion to dismiss admits all facts well pleaded and invokes any record that accompanies the motion, including supporting affidavits that contain undisputed facts. Barde v. Board of Trustees, 207 Conn. 59, 63, 539 A.2d 1000 (1988). A motion to dismiss raises the question of whether a jurisdictional flaw is apparent on the record or by way of supporting affidavits. Bradley’s Appeal from Probate, 19 Conn. App. 456, 461-62, 563 A.2d 1358 (1989). If a resolution of a disputed fact is necessary to determine the existence of standing when raised by a motion to dismiss, a hearing may be held in which evidence is taken. Weidenbacher v. Duclos, 234 Conn. 51, 54 n.5, 661 A.2d 988 (1995). In this case there were no accompanying affidavits, no hearing was held and the defendant accepted the allegations of the plaintiffs complaint as true, for the purpose of the motion to dismiss only. There is no transcript and there are no exhibits. We, therefore, decide the appeal solely on the allegations of the plaintiffs complaint.

“Standing focuses on whether a party is the proper party to request adjudication of the issues, rather than on the substantive rights of the aggrieved parties. Nye v. Marcus, [198 Conn. 138, 141, 502 A.2d 869 (1985)]. It is a basic principle of law that a plaintiff must have standing for the court to have jurisdiction. Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy. Ardmare Construction Co. v. Freedman, 191 Conn. 497, 501, 467 A.2d 674 (1983), quoting Hiland v. Ives, 28 Conn. Sup. 243, 245, 257 A.2d 822 (1966). Standing is not a technical rule intended to keep aggrieved parties out of court; nor is it a test of substantive rights. Rather it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented. . . . These two objectives are ordinarily held to have been met when a complainant makes a colorable claim of direct injury he has suffered or is likely to suffer, in an individual or representative capacity. Such a personal stake in the outcome of the controversy . . . provides the requisite assurance of concrete adverseness and diligent advocacy. . . . Unisys Corp. v. Dept. of Labor, 229 Conn. 689, 693, 600 A.2d 1019 (1991).” (Internal quotation marks omitted.) Weidenbacher v. Duclos, supra, 234 Conn. 61-62. Thus, standing does not hinge on whether the plaintiff will ultimately be entitled to obtain relief on the merits of an action, but on whether he is entitled to seek the relief. Yale University v. Blumenthal, supra, 225 Conn. 36.

“Standing is established by showing that the party claiming it is authorized by statute to bring suit or is classically aggrieved. Cf. Zoning Board of Appeals v. Planning & Zoning Commission, 27 Conn. App. 297, 605 A.2d 885 (1992).” Steeneck v. University of Bridgeport, 235 Conn. 572, 579, 668 A.2d 688 (1995). “The concepts of ‘standing’ and ‘legal interest’ are to be distinguished. The legal interest test goes to the merits, whereas ‘standing’ concerns the question ‘whether the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.’ Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 153, 90 S. Ct. 827, 25 L. Ed. 2d 184 [1970]; see Ducharme v. Putnam, 161 Conn. 135, 139, 285 A.2d 318 [1971].” Mystic Marinelife Aquarium, Inc. v. Gill, 175 Conn. 483, 492, 400 A.2d 726 (1978).

The plaintiff claims that CUMIFA provides it with standing to bring suit in order to enforce the conditions of its gift. “Statutory aggrievement exists by legislative fiat which grants an appellant standing by virtue of particular legislation . . . .” Buchholz’s Appeal from Probate, 9 Conn. App. 413, 416, 519 A.2d 615 (1987). The issue, therefore, is whether CUMIFA establishes standing for the plaintiff by creating an arguably pro-tectable interest, within the meaning of the statute, of the plaintiff in its capacity as a donor to an “institutional fund.” A statute need not specifically provide that certain persons come within its protection in order to establish aggrievement as long as that protection may be implied fairly. Id., 421-22; see Tomlinson v. Board of Education, 226 Conn. 704, 721, 629 A.2d 333 (1993).

General Statutes § 45a-533 provides that “[w]ith the written consent of the donor, the governing board may release, in whole or in part, a restriction imposed by the applicable gift instrument on the use or investment of an institutional fund.” It is this section of CUMIFA on which the plaintiff relies in order to establish standing. It argues that § 45a-533 creates a right for a donor, namely, the right to consent or to withhold consent to the release of a restriction, which did not exist at common law. The statutory right, the plaintiff argues, gives it standing to enforce the restriction. The plaintiff argues that if a donor cannot enforce the statute, by requiring a donee to obtain a donor’s consent before a donee unilaterally abolishes a restriction, the statute would be rendered meaningless. The defendant argues that this statute was meant only to provide the governing board of a fund with an efficient means to release a restriction and not to create an enforceable right in the donor to retain the restriction, which right, if it exists, lies with the attorney general, not the donor.

Because CUMIFA does not expressly establish authority for the plaintiff to bring suit, we must look to the legislative intent to determine whether the legislature intended to establish a protectable interest of a donor by requiring a donor’s consent before a governing board may release a restriction. “ ‘In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.’ ” Steeneck v. University of Bridgeport, supra, 235 Conn. 581, quoting Frillici v. Westport, 231 Conn. 418, 431-32, 650 A.2d 557 (1994).

In reviewing the legislative history of CUMIFA, we conclude that the legislature intended to provide the governing board of an institutional fund with a means, which did not exist at common law, to seek a release of a condition from the donor directly. The question, however, is whether the statute establishes a pro-tectable interest in a donor that can be adjudicated. We first note that the right championed by the plaintiff, namely, a statutory interest in a completed gift that is sufficient to require its consent to a change in a restriction on its gift, is not inconsistent with the statutory right of a donee to obtain a release of a restriction on the gift.

We next turn to the provisions of the Uniform Management of Institutional Funds Act (UMIFA); 7A U.L.A. 713 (1985); and the comments thereof in order to resolve the definition of an “institutional fund” in an action brought pursuant to CUMIFA. See Yale University v. Blumenthal, supra, 225 Conn. 37-38. The plaintiff here primarily relies on the comments of UMIFA to establish standing. “A court can ‘properly consider the official comments as well as the published comments of the drafters as a source for determining the meaning of an ambiguous provision [of a uniform act].’ 2B J. Sutherland, [Statutoiy Construction (5th Ed. 1992)] § 52.05; Hill v. Blake, 186 Conn. 404, 408, 441 A.2d 841 (1982); General Products Co. v. Bezzini, 33 Conn. Sup. 654, 656-57, 365 A.2d 843 (1976); Griffin v. S. W. Devanney & Co., [775 P.2d 555, 560-61 (Colo. 1989)]. . . . [Section] 45a-534 . . . explicitly state[s] that ‘[sections 45a-526 to 45a-534, inclusive, [CUMIFA] shall be so applied and construed as to effectuate their general purpose to make uniform the law with respect to the subject of said sections among those states which enact them.’ ” Yale University v. Blumenthal, supra, 38.

The prefatory note of UMIFA recognizes that the act provides guidance and rights to managers for administering funds. The act, among other things, establishes a means by which an institution may obtain a release of a restriction on a gift. The note states: “Over the past several years the governing boards of eleemosynary institutions, particularly colleges and universities, have sought to make more effective use of endowment and other investment funds.....One further problem regularly intruded upon the discussion of efforts to free trustees and managers from the alleged limitations on their powers to invest for growth and meet the financial needs of their institutions. Some gifts and grants contained restrictions on use of funds or selection of investments which imperiled the effective management of the fund. An expeditious means to modify obsolete restrictions seemed necessary. The Uniform Act offers a rational solution to these problems by providing . . . (5) a method of releasing restrictions on use of funds or selection of investments by donor acquiescence or court action.” (Emphasis added.) UMIFA, 7A U.L.A. 706, prefatory note (1985). This language clarifies that the act provides the governing body of a fund with the means to release a restriction, as well as recognizing that such release may be obtained by donor acquiescence or court action.

The prefatory note illustrates the drafters’ intent to allow a donee to obtain a release of a restriction, in whole or part, only with the written consent of the donor, or by court authority in some instances. The prefatory note provides an answer to why this is so. “It is established law that the donor may place restrictions on his largesse which the donee institution must honor. Too often, the restrictions on use or investment become outmoded or wasteful or unworkable. There is a need for review of obsolete restrictions and a way of modifying or adjusting them. The Act authorizes the governing board to obtain the acquiescence of the donor to a release of restrictions and, in the absence of the donor, to petition the appropriate court for relief in appropriate cases.” (Emphasis added.) UMIFA, 7A U.L.A. 709, prefatory note (1985).

The defendant argues that one of UMIFA’s comments expressly recognizes that no enforcement rights are provided to the donor by the act. The comment states: “No federal tax problems for the donor are anticipated by permitting release of a restriction. The donor has no right to enforce the restriction, no interest in the fund and no power to change the eleemosynary beneficiary of the fund. He may only acquiesce in a lessening of a restriction already in effect.” (Emphasis added.) UMIFA, 7A U.L.A. 724, comment (1985). This paragraph merely contemplates the tax implications when a donor does consent in writing to a release of a restriction, and does not contemplate situations where the governing board fails to receive the written consent of a donor and unilaterally releases itself from a restriction. This language cannot be translated into an interpretation of UMIFA that prevents a donor from seeking relief from a court when a governing board releases itself from a restriction without the written consent of the donor as required by statute, especially in light of the other comments and express limitation of the rights of governing boards that requires adherence to the conditions of a gift instrument.

The comments and prefatory note recognize that a donor has an interest in a restriction and in whether it should be released. The question then becomes whether the sole right to speak to that interest lies with the attorney general, to the exclusion of a donor.

The defendant argues that the drafters of the uniform act, as adopted by Connecticut, did not intend to create a protectable interest in a donor because the act and CUMIFA conform to the common law, which provided that a donor of a gift could not enforce the provisions of the gift, absent any express reservation of a right to revoke or enforce the conditions of a gift. The defendant concludes, therefore, that the attorney general is the only individual who can enforce the provisions of the gift on behalf of the public.

A comment following § 7 of UMIFA, which is General Statutes § 45a-533 of CUMIFA, recognizes the donor’s lack of a property interest in a gift. “Although the donor has no property interest in a fund after the gift, nonetheless if it is the donor’s limitation that controls the governing board and he or she agrees that the restriction need not apply, the board should be free of the burden. See Restatement of Trusts (2d) § 367.” (Emphasis added.) Although a donor of an irrevocable gift has no property interest in that gift, it does not follow that no protectable statutory interest exists for the purpose of standing. A property interest is one in which an individual or entity has an ownership or share of some tangible or intangible item. A protectable interest is one in which an individual or entity is enabled to defend or to preserve. We have already concluded that the statute does create a protectable interest in a donor, but we now examine whether that interest can be preserved only by the attorney general on behalf of a donor.

The attorney general represents the beneficial interest in public charities, and the general beneficiaries of a trust or gift have no standing to bring an action to enforce their interest in the receipt of any funds established by a gift for their benefit. Averill v. Lewis, 106 Conn. 582, 138 A. 815 (1927). That a general class of beneficiaries has no standing to enforce a gift does not mean, however, that the donor of a gift does not have an interest, when granted by statute, to seek court aid in the enforcement of a restriction on the gift. The attorney general is a necessary party to suits involving the enforcement of charitable trusts. Copp v. Barnum, 160 Conn. 557, 276 A.2d 893 (1970); Lieberman v. Rogers, 40 Conn. Sup. 116, 481 A.2d 1295 (1984). Others may also have standing to enforce charitable trusts, such as trustees, donors of gifts and heirs and executors of wills, which standing includes the right to bring actions or to intervene in actions brought to enforce provisions of trusts or wills. See Hartford v. Larrabee Fund Assn., 161 Conn. 312, 288 A.2d 71 (1971); New York East Annual Conference v. Seymour, 151 Conn. 517, 199 A.2d 701 (1964); Connecticut Bank & Trust Co. v. Coles, 150 Conn. 569, 192 A.2d 202 (1963); Averill v. Lewis, supra, 106 Conn. 582; Healy v. Loomis Institute, 102 Conn. 410, 128 A.2d 774 (1925). We conclude that the attorney general does not have the exclusive right to enforce § 45a-533 (a).

The defendant argues that a conclusion that the donor has standing would frustrate the statute’s purpose of creating an efficient means by which a governing board may release a restriction because a judicial floodgate would be opened, permitting endless claims. The defendant argues that this court should prevent allowing either a donor or a donor’s heirs to bring a suit based on private, possibly greedy, interests that would thwart the public interest of enjoying the charitable gift. If standing were found, the defendant argues that donors or their heirs would bring actions to regain the gift for their own personal benefit.

Our issue is narrow and does not involve a donor’s heirs’ statutory standing to bring suit, nor does it involve a return of the gift to the plaintiff. See Connecticut Bank & Trust Co. v. Coles, supra, 150 Conn. 577-78; Healy v. Loomis Institute, supra, 102 Conn. 422.

“ ‘Standing requires no more than a colorable claim of injury; a plaintiff ordinarily establishes his standing by allegations of injury. Similarly, standing exists to attempt to vindicate “arguably” protected interests.’ ” (Emphasis in original.) Presidential Capitol Corp. v. Reale, 231 Conn. 500, 505, 652 A.2d 489 (1994), quoting Maloney v. Pac, 183 Conn. 313, 321 n.6, 439 A.2d 349 (1981).

It would be anomalous for a statute to provide for written consent by a donor to change a restriction and then deny that donor access to the courts to complain of a change without such consent. See Buchholz’s Appeal from Probate, supra, 9 Conn. App. 423. The need for justiciability and controversy in order to establish standing are met when a plaintiff makes a colorable claim that he has suffered or is likely to suffer harm. Gay & Lesbian Law Students Assn. v. Board of Trustees, 236 Conn. 453, 463-64, 673 A.2d 484 (1996); Bom-bero v. Planning & Zoning Commission, 40 Conn. App. 75, 84, 669 A.2d 598 (1996). The allegations of the plaintiffs complaint demonstrate that there has likely been an invasion of a statutorily protected interest, that there is a causal connection between the defendant’s conduct and the plaintiffs alleged injury, and that a court can redress the injury. A motion to dismiss should not be granted unless it is undisputed that the reasons to support the plaintiffs claim for relief do not exist. Baskin’s Appeal from Probate, 194 Conn. 635, 641 n.9, 484 A.2d 934 (1984).

The judgment is reversed and the case is remanded with direction to restore this case to the docket.

In this opinion the other judges concurred.

       General Statutes § 3-125 provides in relevant part that the attorney general “shall represent the public interest in the protection of any gifts, legacies or devises intended for public or charitable purposes. . .

       The plaintiff does not rely on the common law to bring this cause of action. We, therefore, need not consider whether the plaintiff is classically aggrieved. See Molitor v. Molitor, 184 Conn. 530, 532-33, 440 A.2d 215 (1981).

       Section 367 of the Restatement (Second), ofTrusts, provides: “If a charitable trust has once been validly created, the settlor cannot revoke or modify it unless he has by the terms of the trust reserved a power to do so.” The comments to this section recognize that the donor could consent to minor modifications. The donor generally could not modify a trust or release a restriction on a trust. The plaintiff makes no claim that it reserved a right to revoke or modify the gift in the gift instrument.

       During a House debate regarding the bill, Representative James F. Bingham remarked: “Over the past years, governing boards of eleemosynary institutions particularly colleges and universities have sought to make effective use of endowment and other investment funds. This bill achieves these ends and achieves a rational solution to the problems by providing a standard of prudent use of appreciation and investment funds, specific investment authority, authority to delegate investment decisions, a standard of business care and prudence to guide governing boards in the exercise of their duties under the act, a method of releasing restrictions on use of funds or of selection of investments by donor acquiescence or court actions." 16 H.R. Proc., Pt. 2, 1973 Sess., pp. 5723-24. Representative David H. Neiditz commented: “This bill has this impressive support because it is a bill to aid charitable corporations of this state in the better management of their endowments and which recognizes economic reality.” Id., p. 5724. Representative Albert R. Webber stated that the bill “will give [private schools] the opportunity to release funds which they so sorely need .... It could release funds, possibly, for some expansion programs which, of course, means more jobs. . . . We’re talking about lots of dollars, lots and lots of dollars, Mr. Speaker, that are tied up that they just can’t use and which they need, as I say, so very desperately.” Id., p. 5730. Representative William A. Bevacqua confirmed these sentiments. “We hear of private institutions who are suffering financial straits because they cannot meet the needs of their operating expenses and when we look on paper we see that they are ostensibly very wealthy institutions by virtue of the portfolios that many of them maintain in terms of the stock and whatnot that they hold. But if we look very carefully at these . . . endowments we see that they are very often so restrictive in nature that what on paper appears to be a very wealthy institution turns out, in point of practical fact, to be an institution that’s on the verge of bankruptcy simply because they cannot generate the operating funds from their endowment that they need to carry on the very good work that they do.” Id., pp. 5734-35, remarks of Representative Bevacqua.

       In keeping with the intent to provide uniformity of law, as expressed in § 45a-534, we looked to other jurisdictions to determine how they have addressed the issue but could find no relevant case law.

       General Statutes § 45a-533 (b) provides: “If written consent of the donor cannot be obtained by reason of his death, disability, unavailability or impossibility of identification, the governing board may apply, in the name of the institution, to the superior court for a judicial district in which the institution conducts its affairs for release of a restriction imposed by the applicable gift instrument on the use or investment of an institutional fund. The attorney general shall be notified of the application and shall be given an opportunity to be heard. If the court finds 1hat the restriction is obsolete, inappropriate or impracticable, it may by order release the restriction in whole or in part. A release under this subsection may not change an endowment fund to a fund that is not an endowment fund.”

       Although the plaintiff has included in its claims for relief, reversion of the funds to another foundation, which relief may be improper, its other claims for relief are within the zones that it may prove are protected by CUMIFA.