author: Borden, J.

text:
    John F. Carr, Jr. v. Elliott Woolwich et al.
    (6462)
    Borden, Daly and O’Connell, Js.
    Argued October 12, 1988
    decision released January 31, 1989

      Timothy S. Hollister, with whom, on the brief, was Eric Lukingbeal, for the appellant (defendant Bridgewater planning and zoning commission).

      Neil F. Murphy, Jr., with whom, on the brief, was Philip Nelson Walker, for the appellee (plaintiff).
   Borden, J.

This case is a sequel to our decision in Carr v. Woolwich, 7 Conn. App. 684, 510 A.2d 1358, cert. denied, 201 Conn. 804, 513 A.2d 698 (1986) (Carr I). The defendant Bridgewater planning and zoning commission appeals from the judgment of the trial court holding it in contempt and ordering it to issue to the plaintiff a zoning permit and certificate of site plan approval for the construction of a hotel. The defendant claims that the court erred (1) by ruling that a certain zoning permit issued by the defendant to the plaintiff in August, 1986, in compliance with Carr I, was invalid because it was unsigned, and (2) by ordering the defendant to issue a certificate of site plan approval. The dispositive issue is whether the trial court erred by holding the defendant in contempt because the zoning permit issued in August, 1986, by the defendant to the plaintiff in compliance with Carr I was unsigned. We find error.

Some background is in order. In October, 1983, the plaintiff applied to the defendant for approval of a zoning permit and site development plan for construction of a hotel and restaurant, and the defendant failed to act on that approval within the time limitations set by General Statutes § 8-7d. The plaintiff brought a mandamus action, claiming that his application was approved by the passage of time pursuant to General Statutes § 8-3 (g). The trial court agreed, and rendered a judgment of mandamus in favor of the plaintiff. On appeal, we found no error. We held that, under the facts of the case, “[t]he application [for a zoning permit], the site plan itself and accompanying two page document, taken together, purported to show all such data required by the regulations. Thus, for purposes of General Statutes § 8-3 (g), the plaintiffs site plan included his application and two page document.” Carr I, supra, 700. We also noted that “[s]ince . . . the plaintiffs site plan included his application and other documents for purposes of § 8-3 (g), those documents are presumed to have been approved as well.” Id.

After Carr I was decided, the defendant commission met on August 6,1986, in order to comply with the trial court’s order of mandamus, and voted that “a certificate of approval for the application of a zoning permit and site development plan submitted by the [plaintiff] on October 11, 1983 is hereby issued.” The plaintiff’s approved site plan was filed with the town clerk and the original of the zoning permit was issued to him. A copy of the zoning permit was also filed with the town clerk. The original zoning permit issued to the plaintiff was unsigned, although the copy of it filed with the town clerk was signed by the clerk of the defendant. With that sole exception, the documents are identical, and both contain all relevant information.

On July 23,1987, the plaintiff moved that the defendant be held in contempt of court on the grounds, inter alia, that the defendant had improperly issued a cease and desist order directing him to discontinue site grading, that the only matter before the defendant was a request by the plaintiff to extend his zoning permit, and that the defendant had improperly sought a temporary injunction to prohibit the plaintiff from engaging in site development work on his property. On August 24, 1987, the plaintiff filed a supplemental motion for contempt. This motion restated certain claims contained in the previous motion for contempt, and asserted for the first time that the zoning permit issued by the defendant pursuant to the trial court’s mandamus order was unsigned and was therefore invalid. Both motions requested that the defendant be held in contempt, and that certain other relief be granted.

The plaintiff’s motions for contempt came before the court on October 2, 1987. The court decided that the zoning permit issued by the defendant was invalid because it was unsigned. The court did not address any other issues. It thereupon found the defendant in contempt of court, and ordered the defendant to issue a signed “certificate of approval of the plaintiff’s application for a zoning permit, site development plans and maps submitted to [the defendant] on October 11,1983, in accordance with the judgment approved by the Appellate Court . . . .” The court also stated that “if this is done the court will vacate the contempt finding,” and it retained jurisdiction to “entertain motions for extension of time if they are not granted by the defendant.” The court also ruled, with respect to the beginning of the time periods for the zoning permit and site plan approval, that the period or periods would run from the date of compliance with the court’s present order. Thereafter, in compliance with the court’s order the defendant issued a new, signed zoning permit to the plaintiff, filed with the town clerk a site development plan signed by the defendant’s members and issued to the plaintiff a certificate of site plan approval. Also in compliance with the court’s order, the defendant noted on the certificate of site plan approval issued to the plaintiff that it took effect on October 8, 1987, and was valid for five years thereafter, until October 8, 1992. This appeal followed. On October 11, 1987, the court ordered the defendant “purged” of the contempt because it had complied with the court’s order of October 2, 1987.

I

We first consider the plaintiff’s argument that we should dismiss the defendant’s appeal as moot. The plaintiff points out that the trial court did not impose a penalty on the defendant for the contempt, and relies on the general principle that where a contemner has complied with the trial court’s order, thus purging itself of the contempt, the contemner’s appeal is moot because there is no practical relief that the appellate court can order. The plaintiff relies on Shays v. Local Grievance Committee, 197 Conn. 566, 499 A.2d 1158 (1985), Dukes v. Durante, 192 Conn. 207, 471 A.2d 1368 (1984), and Whiteside v. Burlant, 153 Conn. 204, 215 A.2d 100 (1965). We conclude that Shays, Dukes and Whiteside are distinguishable from this case, which is more closely analogous to Papa v. New Haven Federation of Teachers, 186 Conn. 725, 444 A.2d 196 (1982), and that therefore the appeal is not moot.

In Shays v. Local Grievance Committee, supra, the plaintiff had been sentenced to ten days imprisonment for his contempt of court and had fully served that sentence before his writ of error was heard by our Supreme Court. The court dismissed the appeal for want of any practical relief it could afford the appellant, holding that the appeal was moot because “[i]f this court were to rule in the plaintiff’s favor, there is no way in which we could restore to the plaintiff any of the time that he has spent incarcerated.” Id., 571. In Dukes v. Durante, supra, the trial court had found the city of New Haven and its housing officials in contempt of court for failure to place the plaintiffs in permanent housing, and allowed the city and its housing officials one month to do so. They complied, and no sanctions were imposed. The Supreme Court dismissed the defendants’ appeal because their compliance had rendered the appeal academic. Id., 227. In Whiteside v. Burlant, supra, the plaintiff had sought a writ of habeas corpus to invalidate his conviction of criminal libel. The trial court dismissed the writ, and the plaintiff appealed to the Supreme Court. The court dismissed the appeal as moot because the plaintiff had served the sentence of incarceration imposed and completed his probationary period. Id., 206-207.

Shays and Dukes do not control the case presently before us because in those cases there truly was no practical relief affordable by a successful appeal. The only practical consequence of the judgment of contempt and ensuing order was, in Shays, a period of incarceration that had been served and, in Dukes, an order that had been complied with and that the appellant did not claim could be undone. Whiteside does not control here because it is no longer good law. The doctrine of collateral consequences now shields from mootness an appeal challenging a criminal conviction even when the appellant has served the sentence imposed. Sibron v. New York, 392 U.S. 40, 53-55, 88 S. Ct. 1889, 20 L. Ed. 2d 917 (1968); Phaneuf v. Commissioner of Motor Vehicles, 166 Conn. 449, 452, 352 A.2d 291 (1974); see also Sgarellino v. Hightower, 13 Conn. App. 591, 594-95, 538 A.2d 1065 (1988) (collateral consequences flowing from judgment of contempt may shield appeal from mootness).

This case is analogous to Papa v. New Haven Federation of Teachers, supra. In Papa, the defendants were found in contempt for violation of the trial court’s order enjoining them from participating in a teachers strike. The court imposed conditional, coercive penalties of incarceration, and fines for each day that they continued in contempt. When the strike did not end by the time set by the court, the conditional penalties were imposed. The defendants were incarcerated and paid the fines. Shortly thereafter, the strike was settled. The defendants appeared in court to purge themselves of contempt, and moved that the fines be remitted or rescinded. The trial court refused to do so. On appeal, the Supreme Court held that the defendants’ appeal from the judgment of contempt was not moot because “[although the defendants’ incarceration, if erroneous, can not now be undone, the payment of the fines, if erroneous, can be.” Id., 731-32 n.6.

Similarly, in this case the issuance of the new zoning permit and certificate of site plan approval, if erroneous, can be undone. If we were to find error, the defendant could revoke the zoning permit and certificate of site plan approval issued in October, 1987. That, in turn, would mean that the beginning date of both the zoning permit and site plan approval was in August, 1986, rather than October, 1987. Thus, this appeal is not moot. We turn, therefore, to the grounds of the defendant’s appeal.

II

The defendant first claims that the court erred in determining that the zoning permit issued to the plaintiff in 1986 was invalid because it was unsigned. We agree.

We first consider our scope of review of the court’s judgment of contempt. “Although on appeal from a judgment of civil contempt, our scope of review is technically limited to jurisdictional questions such as whether the court had authority to impose the penalty inflicted and whether the conduct penalized could constitute a contempt, that scope of review is sufficiently broad to encompass many claims of error which are not facially jurisdictional.” Foley v. Southport Manor Convalescent Center, Inc., 11 Conn. App. 530, 536, 528 A.2d 418, cert. denied, 205 Conn. 805, 531 A.2d 935 (1987); see also Barboto v. J. & M. Corporation, 194 Conn. 245, 250-51, 478 A.2d 1020 (1984); Papa v. New Haven Federation of Teachers, supra, 732. We conclude that the applicable scope of review encompasses the defendant’s claims of error on this appeal.

The parties agree that, following its compliance with Carr I, the defendant voted to issue to the plaintiff a certificate of approval of the plaintiff’s application for a zoning permit and site development plan. The defendant’s minutes clearly reflect this vote. It is also undisputed that the plaintiff’s approved site plan was recorded with the town clerk, a signed copy of the zoning permit was filed with that clerk, and an unsigned zoning permit, containing all the necessary information, was issued to the plaintiff.

Although it would have been better practice to sign the zoning permit delivered to the plaintiff, we know of no statute or rule of law that, under these circumstances, would invalidate the plaintiff’s zoning permit solely because the copy in his possession was unsigned. Ordinarily, a municipality’s actions are determined by reference to its records. 5 E. McQuillan, Municipal Corporations (3d Ed. 1981) § 14.05. The law usually designates the municipal officer to keep its records, and it is essential only that the record accurately reflect the truth of what happened. Id., § 14.02. Municipal records, to be complete, should show all the essential or material facts concerning the vote or transaction in question. Id., § 14.03. Even the failure of the municipal officer to sign the minutes will not invalidate them, unless the law specifically requires that they be signed. Id. General Statutes § 7-23 provides in pertinent part, that “[t]own clerks shall keep the records of their respective towns and truly enter therein, either by transcribing or by photographic process, all votes of the town and give true copies of the same and of all deeds and other instruments by them recorded . . . .”

In this case, the records of the defendant, and of the town of which the defendant was an agency, clearly reflect that in 1986 the plaintiff was issued a zoning permit, and that his site plan was approved. Those records also clearly establish the validity of the zoning permit and of the site plan approval. That the zoning permit issued to the plaintiff was unsigned did not invalidate it. Indeed, had anyone, even the plaintiff himself, at any time sought a “true cop[y]”; id.; of the zoning permit from the town clerk, that copy would have been signed. Under these circumstances, the court erred by holding the initial zoning permit to be invalid.

Ill

The defendant also claims that the court erred by ordering the defendant to issue a certificate of site plan approval. This claim arises from the following procedural context.

During the hearing on the plaintiffs motion for contempt, the defendant twice represented to the court that it did not question the validity of the site plan approval voted and recorded in the town clerk’s office in 1986. The plaintiff introduced into evidence a copy of the minutes of the August 6, 1986 meeting of the defendant when it voted to issue a certificate of approval of the plaintiff’s site development plan. The plaintiff complained, however, that “we never received anything from the town purporting to be” an approved site plan.

The court thereupon expanded its order for the issuance of a signed zoning permit by mandating that the defendant also issue to the plaintiff a certificate of approval of the plaintiffs site development plans and maps submitted to the defendant on October 11,1983. The court also stated that it was not resolving the issue of whether the zoning permit and the site development plan approval had the same or different termination dates. See footnote 3, supra. It did, however, order that the beginning date of both approvals would be in 1987, upon compliance with its current order. It stated that “because [the defendant] . . . didn’t do what [it] should have, the time the clock is starting to run is when they issue it . . . which is 1987.” It is apparent, therefore, that the court’s inclusion in its order of the certificate of site plan approval was based on its view that the zoning permit issued in 1986 was invalid, and that the site plan approval was inextricably linked therewith.

We have concluded, however, that the initial, albeit unsigned, zoning permit was valid. We need not decide in this case whether the two actions of the defendant-approval of the zoning permit and of the site plan approval — are inextricably linked together for all purposes. The same reasoning and authorities that led us to conclude that the 1986 zoning permit is valid, lead us to conclude that the 1986 site plan approval was valid, namely, that the records of the defendant and of the town clearly indicate that validity. To the extent that the trial court ordered the defendant to issue a formal certificate of site plan approval to the plaintiff, it did not err because its order was a harmless and probably unnecessary act. To the extent, however, that the court started a new time clock running on that approval, it did err, because the statutory time period; General Statutes § 8-3 (i); began to run in 1986, when the defendant complied with Carr I.

Although we have found error in the court’s judgment of contempt, it is apparent from the record of this case that the plaintiff was prepared to present and argue other claims as bases for holding the defendant in contempt. That process was truncated when the court concluded that the 1986 zoning permit was invalid because it was unsigned. The plaintiff may still wish to present those bases. The case must be remanded, therefore, for further proceedings on the plaintiff’s motions for contempt of court.

There is error, the judgment of contempt is set aside and the case is remanded for further proceedings according to law.

In this opinion the other judges concurred.

       The named defendant, Elliott Woolwich, was chairman of the defendant commission in 1983, when the proceedings leading to Carr I were held. He is no longer a member of the commission. Only the defendant commission was adjudged in contempt. We, therefore, refer herein to the commission as the defendant.

       The defendant also claims that the court erred by acting on the plaintiff’s motions for contempt and ordering a new zoning permit because other actions were pending requesting the same relief. Our conclusions regarding the defendant’s first two claims render it unnecessary to consider this claim.

       Although not squarely presented by this appeal, it is apparent, and the parties do not dispute, that the principal substantive dispute between them involves the length of life of the zoning permit issued by the defendant to the plaintiff. The defendant’s position is that, although the site plan approval is valid for five years from the date of its issuance; see General Statutes § 8-3 (i); the life of the zoning permit is governed by § 2.2.12.C. of the town’s zoning regulations, which requires, in general terms, certain work to have been completed within one year of the issuance of the zoning permit, unless extensions are granted by the defendant for good cause. The plaintiff’s position is that the zoning permit and site plan approval cannot be treated separately, that the zoning permit has a five year life span coextensive with the site plan approval, and that our decision in Carr I implicitly held that to be the case.
      Although the reference in the trial court’s order to the site development plans and maps, and to the decision in Carr I, can be read as resolving this issue, it is clear from the transcript that the trial court did not do so. In response to the defendant’s argument that the zoning permit and site plan approvals were on “different time tracks,” the court replied: “That argument would only be good if you issued a valid permit.” The court also ruled that, with respect to the beginning date of the certificates of approval, they would run from the date of issuance, which the court ordered to be on or before October 13,1987. When the defendant requested clarification from the court whether it was also ruling on the dispute regarding the termination dates of the documents, the court stated: “I am not acting upon that issue at this time. I said I would retain jurisdiction over the matter in the event that becomes an issue in the future.”
      It is clear, therefore, that the trial court’s reference in its order to the site plan approval and maps was linked to its determination that the zoning permit was invalid because it was unsigned. Thus, the issue of when the zoning permit expires was not decided by the trial court, and remains the subject of further litigation between the parties in the trial court, in this and in other cases. We, therefore, do not address it at this time.

       In this regard, the defendant does not claim that the plaintiff was not entitled to a zoning permit and site plan approval. Its position is that its compliance in August, 1986, following Carr I, was sufficient, and that therefore the one year provided by § 2.2.12.C of the zoning regulations and the five years provided by General Statutes § 8-3 (i); see footnote 3, supra; run from that date, and not from October, 1987, when the defendant was required by the court to issue a formal certificate of site plan approval with a new beginning date.


source: Caselaw Access Project

author: Daly, J.

license: Public Domain

text:
    State of Connecticut v. Sheryle L. Branca
    (7182)
    Borden, Daly and Stoughton, Js.
    Submitted on briefs December 21,1988
    decision released January 31, 1989

      B. Paul Kaplan filed a brief for the appellant (defendant).

      Paul J. Ferencek, deputy assistant state’s attorney, and Mark S. Solak, assistant state’s attorney, filed a brief for the appellee (state).
   Daly, J.

The defendant appeals from her conviction, after a trial to the court, of speeding in violation of General Statutes § 14-219 (c). The defendant’s sole claim on appeal is that the trial court erred in admitting into evidence a certificate of accuracy of a radar transmitter. We find no error.

The trial court found the following facts. On May 4, 1988, the defendant was operating a motor vehicle on Interstate 395 in a northerly direction. Connecticut State Trooper Stephen Castaglivolo was assigned to clock northbound traffic with the use of a radar gun on Interstate 395 and, at approximately 12:48 p.m., clocked the defendant traveling at eighty-three miles per hour.

In order to prove the accuracy of the radar transmitter, the state introduced the testimony of Castaglivolo. Castaglivolo testified that at the beginning of his shift he had measured both the internal and external calibrations of the radar transmitter used to clock the defendant’s speed and that the machine was working accurately that day. He further testified that the transmitter had been tested and duly certified for accuracy by the calibration department of the Fairfield Radar Laboratory (Fairfield), and that Fairfield issued a six month certificate of accuracy for the machine on April 18,1988. That certificate was kept on file by the state police in the ordinary course of business.

When the state attempted to offer the certificate into evidence, the defendant objected. She argued that the business records exception to the hearsay rule applies only where the document at issue is made, as opposed to kept, in the ordinary course of business. The trial court overruled the objection and admitted the certificate into evidence on the basis of the business records exception.

On appeal, the defendant renews her objection to the admission of the certificate on the same ground raised in the trial court. “Where the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts . . . .” Davis v. Naugatuck, 15 Conn. App. 185, 188, 543 A.2d 785 (1988). Our review of the record indicates that the trial court’s decision was legally and logically correct.

In Crest Plumbing & Heating Co. v. DiLoreto, 12 Conn. App. 468, 475, 531 A.2d 177 (1987), this court discussed the business records exception to the hearsay rule, as codified in General Statutes § 52-180. There, we held that there is no requirement in the statute that a document must be prepared by the organization itself to be admissible as that organization’s business record. Id., 475. “All that is required is that it be in the regular course of the business to make the ‘writing or record.’ ” Id., 476. In view of the fact that the state police directed Fairfield to test the accuracy of the radar transmitter as part of its standard procedure of testing all radar units, the trial court could have reasonably found that the certificate was made in the ordinary course of business.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 14-219 (c) provides: “Any person who violates any provision of subdivision (1) of subsection (a) of this section or who operates a motor vehicle (1) on a multiple lane, limited access highway at a rate of speed greater than seventy miles per hour or (2) on any other highway at a rate of speed greater than sixty miles per hour shall be fined not less than one hundred dollars nor more than one hundred fifty dollars, provided any such person operating a truck, as defined in section 14-260, shall be fined not less than one hundred fifty dollars nor more than two hundred dollars.”

       General Statutes § 52-180 (a) provides in pertinent part: “Any writing or record . . . made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible as evidence of the act, transaction, occurrence or event, if the trial judge finds that it was made in the regular course of any business, and that it was the regular course of the business to make the writing or record at the time of the act, transaction, occurrence or event or within a reasonable time thereafter.”


author: Per Curiam.

text:
    Bernice Glassman et al. v. Domenico Martin Maccione et al.
    (6601)
    Spallone, Stoughton and Norcott, Js.
    Argued December 7, 1988
    decision released January 31, 1989

      Martin M. Looney, with whom, on the brief, was Thomas F. Keyes, Jr., for the appellants (plaintiffs).

      John H. Gorman, for the appellee (named defendant).
   Per Curiam.

The sole question in this case is whether, under the provisions of the Uniform Child Custody Jurisdiction Act (UCCJA), General Statutes § 46b-96, the trial court erred in dismissing the plaintiffs’ petition for custody of their grandchildren.

The record reflects the following facts. On April 18, 1985, Domenico Maccione and Lisa Ellen Maccione were divorced by a decree of a court of the state of Florida. The Florida court awarded primary residency of the couple’s minor child, Amber, to Lisa Ellen Maccione. On July 25,1987, Domenico Maccione, a resident of Florida, petitioned the Florida court for a modification of the dissolution decree in order to gain primary residency of Amber. On August 31, 1987, before the Florida court ruled on the defendant’s petition, Amber Maccione’s maternal grandparents, Bernice and Burt Glassman of New Haven, brought this action against Domenico Maccione and Lisa Ellen Maccione in New Haven Superior Court, alleging that Amber had been living continuously in their home since March, 1987, and requesting that custody of Amber be awarded to them. Thereafter, on September 9, 1987, the Florida court granted Domenico Maccione’s petition for modification of the dissolution decree and awarded primary residency of Amber to him.

On motion of the defendant Domenico Maccione, the trial court dismissed the complaint, holding that the Florida court had jurisdiction with respect to custody of Amber and that, under the provisions of General Statutes § 46b-96, the court should refrain from exercising jurisdiction. We find no error.

Both Connecticut and Florida have adopted the provisions of the UCC JA, which is intended to avoid jurisdictional competition and conflict between the courts of different states in matters of child custody. Agnello v. Becker, 184 Conn. 421, 426, 440 A.2d 172 (1981). The UCCJA seeks to assure that only one state make custody decisions. Id., 430. General Statutes § 46b-96 (a) specifically provides that a Connecticut court “shall not exercise its jurisdiction ... if at the time of filing the petition a proceeding concerning the custody of the child is pending in a court of another state exercising jurisdiction substantially in conformity with [Connecticut law], unless the proceeding is stayed by the court of the other state . . . .” (Emphasis added.)

The record is clear that, at the time the plaintiffs filed their custody petition in New Haven Superior Court, a “proceeding concerning the custody of the child” initiated by the child’s father, the defendant Domenico Maccione, was pending in Florida, the state in which the original custody decree was rendered. In granting the defendant’s motion to dismiss and declining thereby to exercise jurisdiction, the trial court acted in accordance with the clear language and purpose of General Statutes § 46b-96 (a).

There is no error.

       Lisa Ellen Maccione did not file an appearance and is not involved in this appeal.


author: Spallone, J.

text:
    Ann Hernandez et al. v. Monterey Village Associates Limited Partnership
    (6267)
    Spallone, Daly and Foti, Js.
    Argued November 7, 1988
    decision released January 31, 1989

      Dennis J. O’Brien, with whom were, Richard Tenenbaum and, on the brief, John M. Boesen, for the appellants (plaintiffs).
   Spallone, J.

The plaintiffs appeal from a postjudgment decision of the trial court denying their motions for attorney’s fees and costs under the Connecticut Unfair Trade Practices Act.

The plaintiffs, three tenants residing in Monterey Village, an apartment complex in Norwalk, brought a class action under the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a through § 42-110q, on behalf of some 150 tenant families residing at the complex. In their complaint, the plaintiffs alleged that the defendant owner and operator of the complex was attempting to evict them and members of their class by initiating more than twenty summary process actions on the basis of nonpayment of rent and termination of lease by lapse of time, in violation of state and local law, of the United States Housing Act of 1937, and of an agreement between the defendant and the city of Norwalk housing authority entered into pursuant to Section 8 Moderate Rehabilitation Housing Assistance Payments Program, 42 U.S.C. § 1437f (e) (2). Specifically, the plaintiffs alleged that the defendant had brought the summary process actions in violation of agreements between the defendant and the Norwalk Housing Authority which obligated the defendant not to terminate any tenancy solely because of expiration of the lease and which required it to follow specific notice procedures when taking action to terminate a lease. The plaintiffs also alleged that the dwelling units occupied by the class members were in a condition violating state and local housing laws and ordinances, that no certificates of apartment occupancy had been issued on the dwellings as required by city ordinance, and that the defendant was nevertheless attempting to evict them for nonpayment of rent, in violation of General Statutes § 47a-57 and city ordinance. The plaintiffs sought injunctive relief, damages, and attorney’s fees.

The plaintiffs moved for a temporary injunction to bar the defendant from commencing additional summary process actions and from obtaining or executing any summary process judgments. On June 11, 1985, the day the parties were scheduled to be heard on the motion, they entered into a written stipulation to resolve “all claims for compensatory and punitive damages and injunctive relief raised in the plaintiffs’ complaint.” Pursuant to the stipulation, the plaintiff class was certified, and the defendant agreed (1) to accept from the class members half of the current charge for rent, (2) to waive all claims for back rent and use and occupancy, (3) to withdraw all pending summary process actions, (4) to refrain from commencing any new summary process actions based on lapse of time or nonpayment of rent, (5) to obtain certificates of apartment occupancy for each and every apartment unit on or before September 2,1985, with the tenants’ obligation to pay rent to be suspended if the defendant failed to comply, and (6) to take adequate measures to eliminate vermin infestation in the units. The plaintiff class agreed to waive “all claims for compensatory and punitive damages.” The stipulation did not mention attorney’s fees. The court later rendered judgment in accordance with the stipulation on June 30, 1988.

On June 30,1986, and July 8,1986, the plaintiffs filed motions for attorney’s fees and costs. Relying on General Statutes § 42-110g (d), the plaintiffs requested that the court award a total of $25,611.45 for attorney’s fees and costs. After a hearing, the trial court denied the motions, holding that the plaintiffs were not entitled to an award of attorney’s fees because there was neither contractual nor statutory authorization for such an award. The court found that there was no contractual authorization for the award because the parties’ stipulation did not evince any agreement by the defendant to pay the plaintiffs’ attorney’s fees. There was no statutory authorization for the award, the court held, because there had to be a judgment on the merits following litigation of the issues in order for the court to award attorney’s fees under General Statutes § 42-1 lOg (d), and in this case there was only a stipulated judgment.

The trial court’s finding that the parties did not agree in the stipulation about whether the defendant would pay the plaintiffs’ attorney’s fees is not at issue in this appeal. The sole question before us is whether the trial court erred in denying the plaintiffs’ motions for attorney’s fees and costs on the basis that General Statutes § 42-110g (d) does not authorize an award of fees and costs when a case is concluded by stipulated judgment rather than by a judgment rendered on the merits after full litigation of the issues. We find error.

General Statutes § 42-110g (d) specifically provides for awards of attorney’s fees in certain class actions brought under § 42-1 lOg: “In a class action in which there is no monetary recovery, but other relief is granted on behalf of a class, the court may award, to the plaintiff, in addition to other relief provided in this section, costs and reasonable attorney’s fees.” (Emphasis added.) The statute does not expressly condition the plaintiffs’ ability to seek and receive an award for attorney’s fees and costs on the obtaining of a judgment rendered after full adversarial litigation on the merits. By the clear terms of the statute, attorneys representing a plaintiff class on whose behalf “relief is granted” may, in the court’s discretion, recover attorney’s fees and costs.

Our review of the purposes of CUTPA generally, and of the provisions permitting awards of costs and attorney’s fees in particular, also convinces us that the legislature did not intend to distinguish, for purposes of attorney’s fees awards, between a judgment rendered after litigation on the merits and one entered in accordance with a stipulated agreement reached by the parties. The policy behind CUTPA is to encourage litigants to act as private attorneys general and to bring actions for unfair or deceptive trade practices. Gill v. Petrazzuoli Bros., Inc., 10 Conn. App. 22, 33, 521 A.2d 21 (1987). To effectuate that policy, the legislature encourages attorneys to accept and litigate CUTPA cases by providing, in General Statutes § 42-110g (d), for awards of attorney’s fees and costs. Gill v. Petrazzuoli Bros., Inc., supra. To hold as a matter of law that attorney’s fees are available in a class action under § 42-110g (d) only when plaintiffs obtain a judgment after full litigation on the merits would be to rewrite the statute and, potentially, to frustrate its remedial purpose. The legislature has expressly provided the principle of construction which it intends should guide us in interpreting the provisions of CUTPA. General Statutes § 42-110b states the intention of the legislature that CUTPA “be remedial and be so construed.” We think that an interpretation of § 42-110g (d) which would preclude an award of costs and attorney’s fees in cases concluded by stipulated judgment would contravene the express remedial purposes of CUTPA generally and undermine the specific policy behind § 42-110g (d) to encourage private vindication of the interests protected by CUTPA.

Moreover, to interpret § 42-110g (d) as barring an award of attorney’s fees and costs when a case is concluded by stipulated judgment could deter CUTPA class action plaintiffs from settling before trial, thus interfering with the general policy favoring settlement of disputes. “The settlement of disputes by informal processes serves the public interest as an alternative to litigation.” Albert Mendel & Son, Inc. v. Krogh, 4 Conn. App. 117, 121, 492 A.2d 536 (1985). In the absence of some clear expression of legislative intent to the contrary, we decline to read § 42-1 lOg (d) to preclude plaintiffs who act in accord with the public interest by settling their cases from obtaining attorney’s fees and costs.

Our conclusion that the trial court erred in interpreting § 42-1 lOg does not, however, mean that the plaintiffs in this case are necessarily entitled to attorney’s fees and costs. The determination of whether the plaintiffs should receive attorney’s fees and costs is entrusted to the sound discretion of the trial court. General Statutes § 42-110g (d); Gargano v. Heyman, 203 Conn. 616, 622, 525 A.2d 1343 (1987). We hold only that the trial court erred in refusing to consider awarding fees and costs on the basis that there was no statutory authority for such an award.

There is error, the judgment denying the motion for attorney’s fees and costs is set aside and the case is remanded for further proceedings to determine, in its discretion, whether the plaintiffs should receive attorney’s fees and costs and, if so, in what amount.

In this opinion the other judges concurred.

       The parties entered into another stipulation on October 29,1985, after the plaintiffs filed a motion for contempt based on the defendant’s alleged failure to properly exterminate vermin and its attempt to obtain full rental payments from class members without obtaining certificates of apartment occupancy. In the stipulation, the parties agreed to a revised schedule for extermination. The court rendered judgment on this stipulation on June 30, 1988.

       The other relief provided for by General Statutes § 42-110g is damages and injunctive or other equitable relief, § 42-110g (d), and punitive damages, § 42-110g (a).


text:
    In re Jennifer P.

    (6661)
    Dupont, C. J., Daly and Stoughton, Js.
    Argued December 20, 1988
    decision released January 31, 1989

      Jeffrey D. Ginzberg, for the appellant (petitioner).

      Diane W. Whitney, assistant attorney general, with whom were Sonia Stoloff, assistant attorney general, and, on the brief, Joseph I. Lieberman, attorney general, and John R. Whelan, assistant attorney general, for the appellee (respondent department of children and youth services).

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 2026, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.
      Reporter of Judicial Decisions

   Per Curiam.

This appeal presents the question whether a former foster parent has standing to seek visitation rights under General Statutes § 46b-59. The trial court held that a former foster mother does not have standing. We find error and remand for further proceedings.

This appeal is controlled by Michaud v. Wawruck, 209 Conn. 407, 551 A.2d 738 (1988), and Temple v. Meyer, 208 Conn. 404, 544 A.2d 629 (1988). In Temple, our Supreme Court upheld the right of a third party to seek visitation under § 46b-59. In Michaud, the court reiterated the significance of § 46b-59, as previously set forth in Temple. These cases make it clear that § 46b-59 is an encompassing, not limiting, statute. The statute “ ‘leaves great latitude for the exercise of judicial discretion because it does not focus on the legal relationship of the parties involved. . . . The only criterion under § 46b-59 is the best interest of the child.” Temple v. Meyer, [supra,] 410.” Michaud v. Wawruck, supra, 414. Moreover, this statute is not limited to use in dissolution actions only. See Temple v. Meyer, supra (action for visitation rights brought pursuant to § 46b-59 and was not incident to a dissolution action).

Section 46b-59 is a third party visitation statute that can be invoked by persons who do not share a blood or legal relationship with a child. Temple v. Meyer, supra. Visitation will be granted under the statute only when it is in the best interest of the child.

There is error, the judgment is set aside and the case is remanded to the trial court for a hearing on the merits of the application for visitation.

       General Statutes § 46b-59 provides: “The superior court may grant the right of visitation with respect to any minor child or children to any person, upon an application of such person. Such order shall be according to the court’s best judgment upon the facts of the case and subject to such conditions and limitations as it deems equitable, provided the grant of such visitation rights shall not be contingent upon any order of financial support by the court. In making, modifying or terminating such an order, the court shall be guided by the best interest of the child, giving consideration to the wishes of such child if he is of sufficient age and capable of forming an intelligent opinion. Visitation rights granted in accordance with this section shall not be deemed to have created parental rights in the person or persons to whom such visitation rights are granted. The grant of such visitation rights shall not prevent any court of competent jurisdiction from thereafter acting upon the custody of such child, the parental rights with respect to such child or the adoption of such child and any such court may include in its decree an order terminating such visitation rights.”

       The fact that the department of children and youth services has custody of the minor child does not alter our conclusion.


text:
    Felix Danziger et al. v. Demolition Board of the City of Stamford

    (6766)
    Borden, O’Connell and Stoughton, Js.
    Argued January 3
    decision released February 7, 1989

      L. Morris Glucksman, with whom, on the brief, was Mark R. Feller, for the appellants (plaintiffs).

      Barry J. Boodman, assistant corporation counsel, with whom, on the brief, were Mary E. Sommer, corporation counsel, and Eric L. Reinken, assistant corporation counsel, for the appellee (defendant).

       Superseded. See 18 Conn. App. 40, 556 A.2d 625 (1989).

   Per Curiam.

The plaintiffs appeal from the judgment of the trial court dismissing their administrative appeal from an order of the defendant, the demolition board of the city of Stamford. The defendant had ordered the plaintiffs to demolish two tenement buildings owned by them because the buildings, which had been unused since 1976 and had been damaged by fire, were a threat to health and safety. At a hearing held pursuant to §§ 90-7 and 90-8 of the Stamford Code of Ordinances and during several weeks of extensions granted by the defendant, the plaintiffs indicated that they were selling the properties to another individual who planned to renovate them, but that the sales contract was conditioned on a variance being obtained from the zoning board of appeals. Although the plaintiffs presented a proposal for better security of the buildings against access by intruders, they offered no plan for restoration or rehabilitation that did not depend on a zoning variance; nor did the plaintiffs establish that the proposed purchaser had any specific plan for restoration or any specific time table therefor, that a variance had been applied for, or that it was reasonably likely to be granted.

The plaintiffs claim that the trial court erred (1) by failing to conclude that the defendant denied them due process of law, and (2) by not considering certain facts outside the administrative record. We have fully considered the plaintiffs’ claims in light of the thorough and well reasoned decision of the trial court, in which both of these contentions were fully discussed and rejected. We agree with the trial court that there was nothing unfair about the administrative proceedings, and that the plaintiffs’ claims based on evidence outside the record were not reviewable, particularly since the plaintiffs did not move to admit such evidence in the trial court. We note, moreover, that the trial court nonetheless considered those claims of the plaintiffs as presented in their trial brief, and concluded that they were without merit because they concerned instances factually distinguishable from this case.

There is no error.

       Although the plaintiffs have purported to treat their appeals to the Superior Court and to this court as pursuant to General Statutes §§ 4-183 and 4-184 of the Uniform Administrative Procedures Act (UAPA), it is clear that the UAPA does not apply because the defendant is not a state “agency.” General Statutes § 4-166 (1). We have treated this appeal, therefore, as an administrative appeal from a municipal agency authorized by § 90-11 of the Stamford code of ordinances. See footnote 2, infra.

       Section 90-7 of the Stamford Code provides that a property owner may request a hearing before the board “to cause revocation, suspension or modification of” a demolition order. Section 90-8 provides as follows: “At such hearing, the Board shall hear witnesses, receive evidence and consider all facts presented to it relevant to the question of whether or not such building is in a hazardous condition and should be demolished. At such hearing, the property owner may also submit a plan or proposal for the restoration or rehabilitation of said building to a safe condition and shall state the time in which such work shall be completed. If the Board accepts such plan, any such work must be commenced with thirty (30) days from the acceptance of said plan and must be completed within one hundred twenty (120) days unless said time period is otherwise extended by the Board. Such hearing shall be informal in nature and the Board shall not be required to observe the formal rules of evidence.”
      Section 90-11 provides for a right of appeal to the Superior Court by any property owner aggrieved by a decision of the board.


author: Dupont, C. J.

text:
    Barbara Jackson v. Joseph Jackson
    (6494)
    Dupont, C. J., O’Connell and Norcott, Js.
    Argued November 19, 1988
    decision released February 7, 1989

      Sydney T. Schulman, with whom, on the brief, was Otto P. Witt, for the appellant (defendant).

      Christine M. Whitehead, for the appellee (plaintiff).
   Dupont, C. J.

In this appeal from the judgment dissolving his marriage, the defendant claims that the trial court erred (1) in failing to apply properly the criteria set forth in General Statutes § 46b-81 (c), (2) in finding that inherited property was included in the marital estate, and (3) in awarding one-half of the appreciation in the value of the inherited property to the plaintiff.

The parties were married on September 16, 1960. There are four children of the marriage, all of whom were over the age of eighteen at the time of the dissolution. Both parties were employed at the time of the dissolution and neither made a claim for periodic alimony. During the course of the marriage, the parties lived at 129-131 Mansfield Street in Hartford, a three family home owned by the defendant’s parents. In 1977, the defendant inherited the Mansfield Street house. The value of the house for probate purposes was $25,000.

The trial court found that the marriage of the parties had broken down irretrievably and awarded the plaintiff a property settlement of $35,500. The award was based on the current appraised value of the Mansfield Street property at $102,400. The property settlement award represented one-half of the appreciation on the Mansfield Street property since the time that the defendant had inherited the property, less a 6 percent real estate commission. The trial court ordered the defendant to execute a mortgage deed and note and further ordered that, if the defendant failed to execute the mortgage deed and note, title to the property “shall transfer in accordance with [General Statutes §] 52-22 to the plaintiff.” The trial court, in its decree, made various other orders, none of which is at issue in this appeal. It is the property award of $35,500 to which the defendant assigns his three claims of error.

The defendant’s first claim is that the trial court abused its discretion by failing to apply properly the criteria set forth in General Statutes § 46b-81 (c) in awarding the plaintiff the property settlement of $35,500. Specifically, the defendant contends that the trial court’s decision does not indicate that any consideration was given to the respective contributions of the parties to the acquisition, preservation or appreciation of the Mansfield Street property.

Our review of the record indicates that the trial court properly considered the applicable statutory criteria. The trial court expressly stated that it considered all the factors set forth in § 46b-81 (c). The court further indicated that the length of the marriage, the ability of the parties to acquire future assets, and the financial contribution of the parties to the marriage weighed significantly in its determination of the property award.

“ ‘The court is not obligated to make an express finding on each of [the] statutory criteria.’ Weiman v. Weiman, 188 Conn. 232, 234, 449 A.2d 151 (1982). A ritualistic rendition of each and every statutory element would serve no useful purpose. While the trial court must consider the delineated statutory criteria, no single criterion is preferred over the others, and the court is accorded wide latitude in varying the weight placed upon each item under the peculiar circumstances of each case. Volante v. Volante, 180 Conn. 528, 531, 429 A.2d 964 (1980).” Carpenter v. Carpenter, 188 Conn. 736, 740-41, 453 A.2d 1151 (1982); see also Barnes v. Barnes, 190 Conn. 491, 494, 460 A.2d 1302 (1983).We cannot conclude that the trial court in this case failed to apply the statutory criteria correctly in determining the financial award.

The defendant’s second claim of error is that the trial court erred in finding that inherited property is included in the marital estate for purposes of a property award. The defendant claims that such inclusion violates General Statutes § 46b-36, which provides in pertinent part that “[n]either husband nor wife shall acquire by the marriage any right to or interest in any property held by the other before or acquired after such marriage, except as to the share of the survivor in the property as provided by Section 45-273a.”

General Statutes § 46b-81 (a) provides in pertinent part that “[t]he superior court may assign to either the husband or wife all or any part of the estate of the other.” The “estate” of a party, as contemplated by the statute, includes any property a party may have received through inheritance. North v. North, 183 Conn. 35, 39, 438 A.2d 807 (1981). “Although a party may have received property through inheritance, assigning such property to the other spouse does not violate § 46b-36.” Id., 39-40.

The defendants final claim is that the trial court abused its discretion in awarding one-half of the appreciation in the value of the Mansfield Street property to the plaintiff. The defendant argues that the record indicates that the plaintiff did not contribute in any fashion to the appreciation of the property and that the defendant maintained the property, collected the rents, paid all bills related to the property and made substantial improvements to the property. The defendant contends that even if the Mansfield Street property is marital property, the trial court erred in awarding one-half of the appreciation in the value of the property to the plaintiff when she did not contribute to the appreciation of the property.

“In a dissolution action, marital property is valued as of the date of dissolution . . . Zern v. Zern, 15 Conn. App. 292, 296, 544 A.2d 244 (1988). Thus, the value of the Mansfield Street property for purposes of determining the property settlement was $102,400, the appraised value of the property as of the date of dissolution. While the extent to which the efforts of a spouse may have contributed to the appreciation in the value of property should be considered by the trial court in determining the division of that property incident to a dissolution action, this does not require deviation from the general rule that the parties’ assets are to be valued as of the date of dissolution. Id. The trial court did not err because it considered the appropriate statutory criteria, including the respective contributions of the parties, to the appreciation of the property.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 46b-81 (a) provides in pertinent part: “At the time of entering a decree anulling or dissolving a marriage . . . the superior court may assign to either the husband or wife all or any part of the estate of the other.” The factors that the trial court must take into account are enumerated in General Statutes § 46b-81 (c), which provides that, “fi]n fixing the nature and value of the property, if any, to be assigned, the court, after hearing the witnesses, if any, of each party . . . shall consider the length of the marriage, the causes for the annulment, dissolution of marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income. The court shall also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates.”

       As this case involves an actual inheritance by one of the parties during the course of the marriage, rather than a potential inheritance, it does not implicate the rule of Krause v. Krause, 174 Conn. 361, 387 A.2d 548 (1978). See also Rubin v. Rubin, 204 Conn. 224, 527 A.2d 1184 (1987).


author: Norcott, J.

text:
    Frank Lomangino et al. v. LaChance Farms, Inc., et al.
    (6778)
    Spallone, Stoughton and Norcott, Js.
    Argued December 7, 1988
    decision released February 7, 1989

      Ronald P. Sherlock, for the appellants (plaintiffs).

      Robert J. Cathcart, for the appellee (defendant Southern New England Production Credit Association).
   Norcott, J.

The plaintiffs brought this nuisance action against their former neighbor, Thomas LaChance, and against LaChance Farms, Inc., the Southern New England Production Credit Association (SNEPCA), mortgagee of the LaChance property, and Sunrise Farms, Inc., the subsequent purchaser of the property. The alleged nuisance consists of a large pile of debris, fifty feet wide, twenty feet high and 1500 feet long that defendant LaChance deposited near the boundary of his and the plaintiffs’ properties in 1977.

The defendant SNEPCA moved for summary judgment which the trial court, Satter, J., granted on December 9, 1987. On January 15, 1988, the court denied the plaintiffs’ motion to set aside this summary judgment order. The plaintiffs have appealed from these rulings.

The following facts are relevant to the ruling on the summary judgment motion. LaChance defaulted on the mortgage held by SNEPCA, and, on January 23,1983, SNEPCA accepted a deed to the property in lieu of foreclosure. On March 21,1983, SNEPCA entered into an agreement to sell the property to Sunrise Farms. The sale took place on June 2, 1983, and was subject to a purchase money mortgage taken back by SNEPCA.

Between 1977 and 1979, SNEPCA provided mortgage financing to the plaintiffs in conjunction with a federal program designed to assure funding to farming communities. The plaintiffs allege in their complaint that, through a series of mortgages to them and to other mortgagors, SNEPCA “financed and participated” in the development of the LaChance property from woodland to farmland, a conversion that resulted in the creation of the pile of debris. The alleged nuisance condition remained unabated during these transactions. The plaintiffs further claim that SNEPCA’s mortgagor relationship with the other defendants, together with the fact that SNEPCA assumed fee simple title for a seven week period before the sale to Sunrise Farms, vested both possession and control in SNEPCA so as to render it liable for the nuisance condition. SNEPCA denied the plaintiffs’ claim and contended that it was strictly a lending institution that at no time maintained or controlled the LaChance property.

“Summary judgment shall be rendered if the pleadings, affidavits and other proof submitted show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Practice Book § 384. The party moving for summary judgment bears the burden of proving the absence of a dispute as to any material fact. Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 317, 477 A.2d 1005 (1984). The court must view the evidence in the light most favorable to the nonmovant. D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980). In ruling on a motion for summary judgment, the court’s function is not to decide issues of material fact, but rather to determine whether any such issues exist. Telesco v. Telesco, 187 Conn. 715, 718, 447 A.2d 752 (1982).” Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988).

No Connecticut cases have addressed the specific issue of whether a mortgagee is insulated from liability for the maintenance of a nuisance on the mortgaged property. It is clear, however, that in Connecticut and other jurisdictions “ ‘[liability for damage caused by [a nuisance] turns upon whether the defendant was in control, either through ownership or otherwise.’ ” State v. Tippetts-Abbett-McCarthy-Stratton, 204 Conn. 177, 185, 527 A.2d 688 (1987), quoting Kurtigan v. Worcester, 348 Mass. 284, 285, 203 N.E.2d 692 (1965). In the Tippetts case, our Supreme Court held that, “[w]hen circumstances show that a defendant exercises de facto control over nuisance-causing property, the fact that title or possession of the property has been transferred to others does not absolve the defendant of liability for the nuisance. Henriques v. Rockefeller, 148 Conn. 654, 658-59, 173 A.2d 596 (1961).” Id., 184. The plaintiffs contend that genuine issues of fact exist in this case as to whether SNEPCA controlled the property or was a substantial factor in causing or maintaining the alleged nuisance and that the court erred in its conclusion to the contrary. The trial court concluded from the pleadings and “facts established by depositions, mortgage deeds and affidavits” that: (1) “At no time did SNEPCA participate in the physical development of the former LaChance land or the creation or maintenance of the alleged nuisance”; (2) “Plaintiffs have completely failed to create an issue of fact that SNEPCA had possession and control of the LaChance property”; and (3) “Moreover, plaintiffs have not established that any of defendant’s actions were a ‘substantial factor in causing the damage.’ Beauton v. Connecticut Light & Power Co., 125 Conn. 76, 81 (1938).”

“Like the other elements of the tort of nuisance, the question of whether a defendant maintains control over property sufficient to subject him to nuisance liability normally is a jury question. See Peterson v. Oxford, 189 Conn. 740, 747, 459 A.2d 100 (1983); Filisko v. Bridgeport Hydraulic Co., [176 Conn. 33, 36, 404 A.2d 889 (1978)]; Chazen v. New Britain, 148 Conn. 349, 355, 170 A.2d 891 (1961).” State v. Tippetts-Abbett-McCarthy-Stratton, supra. The related question of whether the actions of a party are sufficient to label it a “substantial factor” for purposes of causation is also one for the jury. “ ‘An actual cause that is a substantial factor in the resulting harm is a proximate cause of that harm. . . . Proximate cause is ordinarily a question of fact.’ ” Tetro v. Stratford, 189 Conn. 601, 605, 485 A.2d 5 (1983), quoting Coburn v. Lenox Homes, Inc., 186 Conn. 370, 382-84, 441 A.2d 620 (1982) . “ ‘Conclusions of proximate cause are to be drawn by the jury and not by the court.’ Fox v. Mason, 189 Conn. 484, 489, 456 A.2d 1196 (1983). ‘ “It becomes a conclusion of law only when the mind of a fair and reasonable man could reach only one conclusion; if there is room for a reasonable disagreement the question is one to be determined by the trier as a matter of fact.” Marley v. New England Transportation Co., 133 Conn. 586, 591, 53 A.2d 296 [1947] . . . .’ Busko v. DeFilippo, [162 Conn. 462, 466, 294 A.2d 510 (1972)].” Trzcinski v. Richey, 190 Conn. 285, 295, 460 A.2d 1269 (1983) .

Our review of the record satisfies us that the plaintiffs raised sufficient, genuine issues as to the material facts regarding SNEPCA’s actions and its control and possession of the LaChance property to warrant reversal of the granting of summary judgment. The plaintiffs cited the following in their pleadings, affidavits and other evidence before the trial court: (1) the eight years of repeated mortgage financing during which, by way of the mortgage deeds, SNEPCA covenanted not to allow waste; (2) the sales agreement between SNEPCA and Sunrise Farms in which SNEPCA acknowledged the plaintiffs’ nuisance claim and covenanted that Sunrise Farms not do anything to abate the condition without SNEPCA’s written consent; and (3) the seven to eight week period of fee simple title ownership by SNEPCA. We are not persuaded by SNEPCA’s assertions that it was a mere conduit of monies, that it did not control the property or take action that was a substantial factor in the maintenance of the nuisance condition and that there are no genuine issues of fact to be determined by a jury.

The present case is not one in which the court should have summarily concluded that no genuine issue of fact existed as to whether the defendants ever “controlled,” “maintained” or “possessed” the LaChance premises and whether any of the defendant’s actions were a substantial factor in causing the alleged damages of the plaintiffs. Accordingly, the trial court erred in granting SNEPCA’s motion for summary judgment.

There is error, the judgment is set aside and the case is remanded with direction to proceed in accordance with this opinion.

In this opinion the other judges concurred.

       Another trial court, Wagner, J., had earlier denied SNEPCA’s motion for summary judgment but, through an administrative error, the second court granted the motion without knowledge of the first order.

       Because of our decision on the granting of the motion for summary judgment, we need not reach the plaintiffs’ claim that the trial court erred in denying their motion to set aside the summary judgment order.


author: Stoughton, J.

text:
    David Miller v. Administrator, Unemployment Compensation Act, et al.
    (6870)
    Spallone, Stoughton and Norcott, Js.
    Argued December 7, 1988
    decision released February 7, 1989

      Edward F. Kunin, for the appellant (defendant Birdseye Development Company).

      Richard T. Sponzo, assistant attorney general, and Charles N. Overend, assistant attorney general, for the appellee (named defendant).
   Stoughton, J.

This is an appeal by the defendant Birdseye Development Company (Birdseye) from the judgment of the trial court dismissing its appeal from the decision of the employment security board of review.

David Miller made a claim for unemployment compensation benefits after his employment by Standard Oil Company was terminated. The administrator found that the claim was valid and awarded benefits, charging the account of Birdseye, a previous employer. Birdseye appealed and an appeals referee conducted a hearing, made findings of fact, affirmed the decision of the administrator and dismissed the appeal. Birdseye then appealed to the Superior Court which rendered judgment dismissing the appeal.

On an appeal from a decision of the board of review, the trial court does not try the matter de novo but is bound by the finding of subordinate facts and reasonable factual conclusions made by the appeals referee where the board of review has adopted those findings and affirmed the decision of the referee. Valley Surgical Group, P.C. v. Administrator, 6 Conn. App. 588, 589-90, 506 A.2d 1075, cert. denied, 200 Conn. 802, 509 A.2d 516 (1986). “The trial court’s function is to determine, on the record, whether the referee acted unreasonably, arbitrarily or illegally. Conclusions of law reached by the referee must stand if they resulted from a correct application of the law to the facts found and could reasonably and logically follow from such facts.” Id., 590.

The appeals referee found the following facts. Charges were assessed as a result of an award of benefits commencing March 11, 1984. The claimant was employed as a security guard by Birdseye from November, 1982, until he was removed by Birdseye from this employment effective June 4, 1983. He worked for Birdseye on a part-time basis and was simultaneously employed on a part-time basis as a security guard by Executive House Corporation. Birdseye and Executive House are distinct corporate entities, although the same individuals are involved in the management of each. Miller put in forty hours during each week of his joint employment, and his salary was charged to each company according to the services he provided to it. As of June 4, 1983, the management of the companies decided to assign Miller exclusively to guard property and premises of Executive House, with no change in his duties or hourly rate. Miller became a full-time employee of Executive House as of June 5, 1983, and was removed from the payroll of Birdseye for that reason. No act of impropriety on the part of Miller was a factor in the employer’s decision to assign him exclusively to the Executive House payroll; this decision was prompted entirely by the needs of the employer. Subsequent to the termination at issue but prior to the initiation of a claim for benefits, Miller worked elsewhere and earned covered wages in an amount exceeding ten times his weekly benefit rate. The appeals referee con-eluded that the circumstances surrounding the termination do not permit a denial of benefits and that an award of benefits subsequent to the termination requires imposition of merit rating charges.

Birdseye challenges the conclusion that the circumstances surrounding Miller’s termination do not permit the denial of benefits on two grounds. Birdseye claims first that Miller was not eligible for benefits because when he left Birdseye he was not unemployed. Second, Birdseye claims that its account should not have been charged because Miller was “a person who leaves part-time work to accept full-time work” within the meaning of General Statutes § 31-236 (2) (B) (iv).

We agree with the trial court that Miller’s eligibility for benefits from Birdseye after separation from a subsequent employer is not an issue, and that the only relevant issue is Birdseye’s chargeability as a base year employer.

General Statutes (Rev. to 1983) § 31-225a (b) (2) provides in pertinent part: “With respect to each benefit year commencing on or after July 1,1978, regular and additional benefits paid to an individual shall be allocated and charged to the accounts of the employers who paid him wages in his base period . . . .”

General Statutes (Rev. to 1983) § 31-230 provides in pertinent part: “An individual’s benefit year shall commence with the beginning of the week with respect to which he has filed a valid initiating claim and shall continue through the Saturday of the fifty-first week following the week in which it commenced .... The base period of a benefit year shall be the first four of the five most recently completed calendar quarters prior to such benefit year . . . . ”

Birdseye was clearly an employer during the base period and subject to charge for an award of benefits paid upon separation from a subsequent employer. A base period employer is relieved of charges upon separation from a subsequent employer and ensuing unemployment only if separation from the base period employer occurred under the conditions specified in General Statutes § 31-225a (c) (1) (E). Miller’s termination by Birdseye did not occur under any of the conditions specified. Birdseye claims that because Miller was not unemployed when he was terminated by Birdseye, he was not eligible for benefits and Birdseye should not have been charged. That is not a valid claim for relief from chargeability.

The second claim made by Birdseye is also without merit. Birdseye asserts that it is protected from charge-ability because Miller left part-time work to accept full-time work within the meaning of General Statutes § 31-236 (2) (B) (iv). The appeals referee found that the management of Birdseye and Executive House decided to assign Miller exclusively to guard property and premises of Executive House, that Miller then became a full-time employee of Executive House and was removed from the Birdseye payroll, and that the decision was prompted entirely by the needs of the employer. We agree with the trial court that on these facts the appeals referee and the board of review could reasonably conclude that Miller did not leave part-time work to accept full-time work. The construction placed upon § 31-236 (2) (B) (iv) by the agency responsible for administration of the unemployment compensation laws is entitled to deference from us. Fellin v. Administrator, 196 Conn. 440, 448, 493 A.2d 174 (1985).

We cannot say that the decision of the trial court was clearly erroneous. Its decision was logically correct and in accordance with the law.

There is no error.

In this opinion the other judges concurred.

       The referee’s finding was that as of June 4,1984, management decided to assign the claimant exclusively to guard property and premises belonging to the Executive House. It is obvious from the record that the actual date was June 4, 1983.

       General Statutes (Rev. to 1983) § 31-236 provides in part: “disqualifications. An individual shall be ineligible for benefits ... (2) (A) if, in the opinion of the administrator, he has left suitable work voluntarily and without sufficient cause connected with his work, provided no individual shall be ineligible for benefits if he leaves suitable work for cause, including leaving as a result of changes in conditions created by his employer, or until such individual has earned at least ten times his benefit rate; or (B) if, in the opinion of the administrator, he has been discharged or suspended for felonious conduct, conduct constituting larceny in the third degree, repeated wilful misconduct in the course of his employment, or participation in an illegal strike as determined by state or federal laws or regulations, until such individual has earned at least ten times his benefit rate; provided (i) a person who, while on layoff from his regular work, accepts other employment and leaves such other employment when recalled by his former employer, or (ii) a person who leaves work which is outside his regular apprenticeable trade to return to work in his regular apprenticeable trade, or (iii) a person who has left work solely by reason of governmental regulation or statute, or (iv) a person who leaves part-time work to accept full-time work, shall not be ineligible on account of such leaving and the employer’s account shall not at any time be charged with respect to such separation, unless such employer has elected payments in lieu of contributions; . . . (6) if it is found by the administrator that he has left employment to attend a school, college or university as a regularly enrolled student, such ineligibility to continue during such attendance . . . (9) if it is found by the administrator that he has retired and that such retirement was voluntary, until he has again become employed and has been paid wages in an amount required as a condition of eligibility as set forth in subdivision (3) of section 31-235; provided, if it is found by the administrator (A) that he has retired because (i) his work has become unsuitable considering his physical condition and the degree of risk to his health and safety, and (ii) he has requested of his employer other work which is suitable and (iii) his employer did not offer him such work, or (B) that he has been involuntarily retired, he shall not be ineligible on account of such retirement . . . .”

       General Statutes (Rev. to 1983) § 31-225a (c) (1) (E) provides in pertinent part: “If the administrator finds that an individual’s most recent separation from a base period employer occurred under conditions which would result in disqualification by reason of subdivision (2), (6) or (9) of section 31-236, no benefits paid thereafter to such individual with respect to any week of unemployment which is based upon wages paid by such employer with respect to employment prior to such separation shall be charged to such employer’s account, provided such employer shall have filed a notice with the administrator within the time allowed for appeal in section 31-241.”


text:
    State of Connecticut v. Anthony Rish
    (6748)
    (6749)
    Dupont, C. J., Spallone and Foti, Js.
    Argued October 7, 1988
    decision released February 7, 1989

      John R. Williams, with whom, on the brief, was Alok Ahuja, law student intern, for the appellant (defendant).

      Mitchell S. Brody, deputy assistant state’s attorney, with whom, on the brief, was Jane Emons, former assistant state’s attorney, for the appellee (state).
   Dupont, C. J.

In two companion cases, the defendant appeals from the denial by the trial court of his motions to withdraw his pleas entered pursuant to the Alford doctrine.

In the first case, the defendant was charged with one count of sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (l) and one count of risk of injury to a minor in violation of General Statutes § 53-21. The state claimed that the defendant had sexual intercourse with the minor victim on a regular basis, from 1980, when she was eight years old, to 1986. In the second case, the defendant was charged with one count each of a violation of the same statutes. This charge concerned the five year old cousin of the first victim.

After the trial court was satisfied that there was a sufficient factual basis for the pleas; Practice Book § 713; and had canvassed the defendant pursuant to Practice Book §§ 711 and 712, it accepted the defendant’s pleas. The court entered findings of guilty as to each count and set a sentencing date. Prior to the sentencing date, the defendant secured new counsel and filed written motions to withdraw his pleas pursuant to Practice Book §§ 720 and 721, which the trial court denied. The defendant was sentenced on all four counts to a total effective sentence of ten years, to be suspended after six years, with five years probation. A condition of his probation was that he receive psychiatric counseling and sex offender treatment.

On appeal, the defendant claims that the trial court erred in denying the motions to withdraw his Alford pleas because (1) he was not informed of the precise amount of the fines that could be imposed for violations of General Statutes § 53-21, and therefore the court failed to determine that he fully understood the maximum possible sentence on the charge, (2) the trial court failed to elicit anything more than simple “yes” and “no” responses from the defendant during the plea canvass, (3) the trial court refused to find that the defendant’s pleas resulted from the denial of effective assistance of counsel pursuant to Practice Book § 721 (4), (4) the pleas were not knowingly and intelligently made because they were entered without the knowledge that a potential witness for the state was in custody, and (5) the trial court failed to permit the pleas to be withdrawn although there was no evidence that the state would have suffered any prejudice.

A guilty plea, once accepted, cannot be withdrawn except with the permission of the court, within its sound discretion, and a denial of a motion to withdraw a plea is reversible only if it appears that there has been an abuse of discretion. Szarwak v. Warden, 167 Conn. 10, 23, 355 A.2d 49 (1974). The defendant bears the burden of showing a plausible reason for the withdrawal of a plea of guilty. State v. Battle, 170 Conn. 469, 475-76, 365 A.2d 1100 (1976); State v. Slater, 169 Conn. 38, 46, 362 A.2d 499 (1975). A trial court is required to permit the withdrawal of a plea of guilty upon proof of any of the grounds set forth in Practice Book § 721. State v. Collins, 207 Conn. 590, 597, 542 A.2d 1131 (1988); State v. Lasher, 190 Conn. 259, 265, 460 A.2d 970 (1983).

I

The defendant’s first claim is that the trial court erred in denying the motions to withdraw his guilty pleas entered pursuant to the Alford doctrine because the court failed to inform him of the precise amount of the fines that could be imposed for violations of General Statutes § 53-21, and therefore failed to ensure that the defendant fully understood the maximum possible sentence on the charge, as required by Practice Book § 711 (4). Practice Book § 721 (1) provides that a motion to withdraw a plea of guilty may be granted if “[t]he plea was accepted without substantial compliance with [Practice Book] Sec. 711.” Practice Book § 711 (4) requires that the defendant be advised of the maximum possible sentence.

In the present case, the court informed the defendant that fines could be imposed in addition to a maximum penalty of forty years. The court also explicitly reviewed with the defendant the precise sentences that could be imposed in accordance with the parameters of his plea bargain. In addition, the court informed the defendant that if the plea agreement were not followed he would be allowed to withdraw his pleas. Nothing in the plea bargain contemplated a fine. Accordingly, the failure of the trial court to inform the defendant of the precise amount of the fines that could have been imposed, on the facts of this case, does not constitute defective compliance with Practice Book § 711 (4).

II

The defendant next claims that the court’s failure to elicit responses other than “yes” or “no” from the defendant during the canvass of the pleas invalidates his guilty pleas entered pursuant to the Alford doctrine. This claim was not raised in the trial court. Ordinarily, the defendant’s failure to raise a timely claim of error to the trial court renders the claim unreviewable on appeal. State v. Badgett, 200 Conn. 412, 417, 512 A.2d 160, cert. denied, 479 U.S. 940, 107 S. Ct. 423, 93 L. Ed. 2d 373 (1986). “ ‘Only in the most exceptional circumstances can and will this court consider a claim, constitutional or otherwise, that has not been raised or decided in the trial court.’ State v. Evans, 165 Conn. 61, 69, 327 A.2d 576 (1973). We have recognized, however, as an ‘exceptional circumstance’ within this doctrine, certain claims involving colorable deprivations of fundamental constitutional rights.” State v. Badgett, supra. To the extent that the defendant’s claim implicates the failure of the trial court to ensure that the defendant’s pleas were entered voluntarily; see Boykin v. Alabama, 395 U.S. 238, 243, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969); his claim is properly reviewable despite the absence of a timely claim of error before the trial court. State v. Badgett, supra, 418; see also State v. Schaeffer, 5 Conn. App. 378, 381, 498 A.2d 134 (1985).

Single word responses to court questions at plea taking do not ordinarily render the plea involuntary. State v. Torres, 182 Conn. 176, 178-84, 438 A.2d 46 (1980). State v. Bugbee, 161 Conn. 531, 536, 290 A.2d 332 (1971), explicated the standards for reviewing whether single word responses demonstrate that a defendant’s plea was entered intelligently, knowingly and voluntarily. “To insulate from attack convictions obtained after a plea of guilty, the trial court is best advised to conduct an on-the-record examination of the defendant which will disclose, inter alia, a full understanding of what the plea connotes and of its consequence and which will demonstrate that the plea of guilty was entered intelligently, knowingly and voluntarily.” Id. “If a fair reading of the record satisfies the standards set down in Bugbee, the guilty plea will withstand a constitutional attack based on facial invalidity.” State v. Torres, supra, 182. The transcript of the trial court’s plea canvass unequivocally demonstrates that the requisite constitutional standards for the acceptance of guilty pleas were met.

The defendant mistakenly relies on rule 11 of the Federal Rules of Criminal Procedure and the cases decided thereunder for the proposition that single word responses invalidate guilty pleas. United States v. Dayton, 604 F.2d 931, 941-43 (5th Cir. 1979), cert. denied, 445 U.S. 904, 100 S. Ct. 1080, 63 L. Ed. 2d 320 (1980), however, makes it clear that single word responses do not necessarily render guilty pleas constitutionally infirm. Moreover, federal cases construing and applying rule 11 “are of persuasive . . . not controlling, authority.” State v. Godek, 182 Conn. 353, 359, 438 A.2d 114 (1980), cert. denied, 450 U.S. 1031, 101 S. Ct. 1741, 68 L. Ed. 2d 226 (1981).

Ill

The defendant next claims that the trial court erred in denying his motions to withdraw his guilty pleas entered pursuant to the Alford doctrine because it refused to find that the defendant’s pleas resulted from the denial of the effective assistance of counsel without holding an evidentiary hearing. Citing Practice Book § 721 (4), which provides for withdrawal of guilty pleas on the ground of ineffective assistance of counsel, the defendant urges this court to remand this issue to the trial court for an evidentiary hearing.

Generally, “ ‘a claim of ineffective assistance of counsel is more properly pursued on a petition for new trial or on a petition for a writ of habeas corpus rather than on direct appeal.’ ” State v. Leecan, 198 Conn. 517, 541, 504 A.2d 480, cert. denied, 476 U.S. 1184, 106 S. Ct. 2922, 91 L. Ed. 2d 550 (1986), quoting State v. Mason, 186 Conn. 574, 578-79, 442 A.2d 1335 (1982). “It is preferable that all of the claims of ineffective assistance, those arguably supported by the record as well as others requiring an evidentiary hearing, be evaluated by the same trier in the same proceeding.” State v. Leecan, supra. Leecan, however, did not address the precise issue in this case, namely, whether the trial court erred in declining to hold an evidentiary hearing on the question of whether a defendant’s pleas entered pursuant to the Alford doctrine resulted from the denial of effective assistance of counsel under the provisions of Practice Book § 721 (4). The transcript of the hearing on the motions to withdraw the pleas indicates that the trial court was aware of the distinction between the Leecan preference and the ground of ineffective assistance of counsel as a basis for withdrawal of guilty pleas pursuant to Practice Book § 721 (4).

At the hearing on the motions to withdraw his pleas, the defendant argued that his attorney did not inform him of the collateral consequences of entering guilty pleas pursuant to the Alford doctrine, thereby rendering his pleas involuntary. Cf. North Carolina v. Alford, 400 U.S. 25, 29 n.3, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970). The defendant contends that his attorney should have informed him that his Alford pleas would constitute admissions against interest in collateral civil proceedings initiated by the victims’ families, whereas pleas of nolo contendere would not.

Although the defendant’s attorney may not have informed the defendant of the collateral consequences, if any, of entering guilty pleas pursuant to the Alford doctrine, as opposed to pleas of nolo contendere, only where “such allegations furnish a basis for withdrawal of the plea under § 721 and are not conclusively refuted by the record of the plea proceedings and other information contained in the court file, [is] an evidentiary hearing . . . required.” (Footnote omitted.) State v. Torres, supra, 185-86.

The defendant’s allegation that he was denied the effective assistance of counsel because counsel did not inform him of the collateral consequences of his pleas in a civil proceeding does not constitute a basis for withdrawal of the plea under § 721 (4). A guilty plea under the Alford doctrine is a “judicial oxymoron in that the defendant does not admit guilt but acknowledges that the state’s evidence against him is so strong that he is prepared to accept the entry of a guilty plea nevertheless.” State v. Palmer, 196 Conn. 157, 169 n.3, 491 A.2d 1075 (1985). In North Carolina v. Alford, supra, the United States Supreme Court treated such guilty pleas as the “functional equivalent” of a plea of nolo contendere. State v. Palmer, supra n.3; State v. Pena, 16 Conn. App. 518, 533, 548 A.2d 445 (1988). “A plea of nolo contendere has the same legal effect as a plea of guilty on all further proceedings within the indictment. . . . The only practical difference is that the plea of nolo contendere may not be used against the defendant as an admission in a subsequent criminal or civil case.” (Emphasis added; citations omitted.) State v. Martin, 197 Conn. 17, 20-21 n.7, 495 A.2d 1028 (1985). As a guilty plea under the Alford doctrine is the “functional equivalent” of a plea of nolo contendere, an Alford plea may not be used against the defendant as an admission in a subsequent civil case. State v. Pena, supra. Accordingly, as a matter of law, the defendant cannot maintain the foregoing as a basis for withdrawal of the plea under § 721 (4). State v. Torres, supra, 185-90.

Further, the record of the plea proceeding conclusively establishes that the defendant’s pleas pursuant to the Alford doctrine were entered knowingly, intelligently and voluntarily. “[F]or a plea to be knowing and intelligent, the record must show that the federal constitutional standards were satisfied . . . and that there was substantial compliance with Practice Book § 711. . . . There is no requirement, however, that the defendant be advised of every possible consequence of such a plea.” (Footnote and citations omitted.) State v. Gilnite, 202 Conn. 369, 383, 521 A.2d 547 (1987). The record of the plea proceedings demonstrates that the federal constitutional standards were satisfied and that there was substantial compliance with Practice Book § 711. The defendant’s claim that his pleas were not knowing and voluntary because counsel failed to inform him of the nonexistent collateral consequences of his Alford plea is therefore without merit. Accordingly, the trial court did not err in failing to hold an evidentiary hearing on this issue.

IV

The defendant next argues that his pleas of guilty entered pursuant to the Alford doctrine were involuntary because the state failed, before the defendant entered his pleas, to disclose information about a potential state’s witness, namely, that the witness was in state custody and therefore any testimony by him could have been subject to state influence. The crux of the defendant’s claim appears to be that, but for the omission of this information, the defendant would not have pleaded guilty under the Alford doctrine because this information could have been used to impeach the state’s witness at trial.

In Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), the United States Supreme Court stated that “suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” “Impeachment evidence as well as exculpatory evidence falls within Brady’s definition of evidence favorable to an accused. United States v. Bagley, 473 U.S. 667, 676, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985); Giglio v. United States, 405 U.S. 150, 154-55, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972); Brady v. Maryland, supra, 87; United States v. Polizzi, 801 F.2d 1543, 1553 (9th Cir. 1986).” State v. Pollitt, 205 Conn. 132, 142, 531 A.2d 125 (1987). “[E]vidence required to be disclosed must be disclosed at a time when it can be used.” State v. Pollitt, 199 Conn. 399, 414, 508 A.2d 1 (1986), on remand, 205 Conn. 132, 531 A.2d 125 (1987).

The defendant is not entitled to impeachment evidence about a state’s witness until the witness has been called by the state and has testified on direct examination. Practice Book § 744. Here, the witness was obviously never called to testify by the state, and therefore the defendant was not entitled to information about the criminal “charges pending against the witness known to the prosecuting attorney.” Id. The claimed Brady material sought by the defendant could not have been used unless, and until, the witness was called to testify. Accordingly, the state had no obligation to disclose the information before the defendant entered his pleas of guilty pursuant to the Alford doctrine. As the defendant was not entitled to this information until trial, the unavailability of the information did not render the defendant’s pleas involuntary.

V

Relying on federal cases, the defendant finally claims that the trial court should have permitted the withdrawal of his pleas because the state would not have suffered any prejudice from their withdrawal. The federal standard for presentence withdrawal motions, derived from dictum in Kercheval v. United States, 274 U.S. 220, 224, 47 S. Ct. 582, 71 L. Ed. 1009 (1927), is any “fair and just” reason. The fair and just reason test has received different interpretations. The prevailing view in the federal courts, however, as stated in United States v. Saft, 558 F.2d 1073, 1083 (2d Cir. 1977), is that there is no occasion to inquire into the matter of prejudice unless the defendant first shows a sufficient reason for being allowed to withdraw his plea. We are persuaded by that view. Although a trial court may, in the exercise of its discretion, consider whether the state will suffer any prejudice in the event that the plea is withdrawn, that consideration does not eliminate the requirement that the defendant must first show a basis for withdrawing the guilty plea under Practice Book § 721. As demonstrated by parts I through IV of this opinion, the defendant failed to make that showing.

There is no error.

In this opinion the other judges concurred.

       A plea of guilty pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970), allows a defendant in a criminal case to consent to punishment as if he were guilty without an express acknowledgement of guilt.

       General Statutes § 53a-71 provides in pertinent part: “(a) A person is guilty of sexual assault in the second degree when such person engages in sexual intercourse with another person and such other person is (1) under sixteen years of age . . . .”

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

       “[Practice Book] Sec. 713. [plea of guilty or nolo contendere— acceptance]--factual basis
      “The judicial authority shall not accept a plea of guilty unless he is satisfied that there is a factual basis for the plea.”

       “[Practice Book] Sec. 711.--advice to defendant
      “The judicial authority shall not accept the plea without first addressing the defendant personally and determining that he fully understands:
      “(1) The nature of the charge to which the plea is offered;
      “(2) The mandatory minimum sentence, if any;
      “(3) The fact that the statute for the particular offense does not permit the sentence to be suspended;
      “(4) The maximum possible sentence on the charge, including, if there are several charges, the maximum sentence possible from consecutive sentences and including, when applicable, the fact that a different or additional punishment may be authorized by reason of a previous conviction; and
      “(5) The fact that he has the right to plead not guilty or to persist in that plea if it has already been made, and the fact that he has the right to be tried by a jury or a judge and that at that trial he has the right to the assistance of counsel, the right to confront and cross-examine witnesses against him, and the right not to be compelled to incriminate himself.”
      “[Practice Book] Sec. 712. [plea of guilty or nolo contendere— acceptance]--insuring that the plea is voluntary
      “The judicial authority shall not accept a plea of guilty or nolo contendere without first determining, by addressing the defendant personally in open court, that the plea is voluntary and is not the result of force or threats or of promises apart from a plea agreement. The judicial authority shall also inquire as to whether the defendant’s willingness to plead guilty or nolo contendere results from prior discussions between the prosecuting attorney and the defendant or his counsel.”

       “[Practice Book] Sec. 720. — when allowed
      “A defendant may withdraw his plea of guilty or nolo contendere as a matter of right until the plea has been accepted. After acceptance, the judicial authority shall allow the defendant to withdraw his plea upon proof of one of the grounds in Sec. 721. A defendant may not withdraw his plea after the conclusion of the proceeding at which the sentence was imposed.”
      “[Practice Book] Sec. 721. — grounds
      “The grounds for allowing the defendant to withdraw his plea of guilty after acceptance are as follows:
      “(1) The plea was accepted without substantial compliance with Sec. 711;
      “(2) The plea was involuntary, or it was entered without knowledge of the nature of the charge or without knowledge that the sentence actually imposed could be imposed;
      “(3) The sentence exceeds that specified in a plea agreement which had been previously accepted, or in a plea agreement on which the court had deferred its decision to accept or reject the agreement at the time the plea of guilty was entered;
      “(4) The plea resulted from the denial of effective assistance of counsel;
      “(5) There was no factual basis for the plea; or
      “(6) The plea either was not entered by a person authorized to act for a corporate defendant or was not subsequently ratified by a corporate defendant.”

       At the hearing on the motions to withdraw his pleas, the defendant argued that the trial court erred in not advising him personally of the mandatory minimum sentence that could be imposed. Practice Book § 711 (2). This claim evades meaningful appellate review because counsel has not briefed this claim. We therefore consider this claim waived. Czarnecki v. Plastics Liquidating Co., 179 Conn. 261, 262 n.1, 425 A.2d 1289 (1979).

       The court stated that: “The record [of the plea canvass] is replete with the questioning by this court of your client concerning the advice of his counsel and the satisfaction of that advice. And the record certainly shows his answers to those questions were appropriate and he acknowledged that he was satisfied with the advice of his attorney and that he was following that advice.”

       The court stated to the defendant’s attorney that: “Some of the things you mentioned, Mr. Williams, may very well be matters that can be brought up on a habeas corpus action. You might even want to take an appeal on my refusal to allow you to withdraw the pleas.”

       The state, at the hearing on the motions to withdraw the defendant’s pleas, stated that the “witness” would not have been used as a prosecution witness “under any circumstances in any event.” The state also claimed that the defendant was aware of the witness, and that the defendant knew the witness was in the custody of the state.

       “[Practice Book] Sec. 744. [disclosure by the prosecuting AUTHORITY — DISCLOSURE AT JUDICIAL DISCRETION] PRIOR RECORD OF WITNESSES
      “After a witness called by the state has testified on direct examination, the prosecuting authority shall disclose any record of felony convictions of the witness known to the prosecuting authority and any record of felony or misdemeanor charges pending against.the witness known to the prosecuting authority.”

       The minority view is represented by United States v. Savage, 561 F.2d 554, 556 (4th Cir. 1977) (any desire to withdraw the plea before sentence suffices so long as the prosecution fails to establish that it would be prejudiced by the withdrawal).

       See Y. Kamisar, W. LaFave & J. Israel, Modern Criminal Procedure (6th Ed. 1986) p. 1239.