author: SCHALLER, J.

text:
    STATE OF CONNECTICUT v. WILLIAM SUNDERLAND
    (AC 20430)
    Lavery, C. J., and Foti and Schaller, Js.

      Argued May 7
    officially released September 11, 2001

      Richard S. Cramer, for the appellant (defendant).

      Michael L. Regan, senior assistant state’s attorney, with whom, on the brief, was Kevin T. Kane, state’s attorney, for the appellee (state).
   Opinion

SCHALLER, J.

The defendant, William Sunderland, appeals from the judgment of conviction, rendered after a jury trial, of two counts of arson in the first degree in violation of General Statutes § 53a-lll (a). On appeal, the defendant’s sole claim is that the trial court improperly denied his motions for a mistrial and for a new trial based on allegations of jury misconduct and, thus, violated his right to a fair trial. We affirm the judgment of the trial court.

The following facts and procedural history pertain to our resolution of the present appeal. In the early morning of April 27, 1997, a fire occurred at the defendant’s home in the town of North Stonington. Officials concluded that arson was the cause of the fire. They further suspected that the defendant had committed the arson on his own home to collect the insurance proceeds. Subsequently, the defendant was charged with two counts of arson in the first degree, and a trial by a six member juiy commenced on September 21, 1999.

On September 30, 1999, the jury began deliberations on the matter. The court, a few days later, received notice that juror L wanted to speak with the court. Upon appearing in open court, L informed the court that, while the trial was in progress but prior to deliberations, he had overheard some fellow jurors discussing extraneous information concerning the trial. L noted that one juror, O, had made statements about when the close of evidence would take place, which information she had derived from a friend. L further advised the court that another juror, C, had stated that the prosecutor in the case suffered from a brain tumor. That same juror, according to juror L, also stated that the defendant made her nervous and that she could not stand it when he looked at her. After volunteering this information, L advised the court that he could not continue with deliberations because he did not think doing so would be fair to the defendant. The court inquired of L whether he could be fair and impartial regardless of the extraneous information. In response, L stated the following: “I feel that I would stand opposite to everyone else and it would just continue. I don’t feel that I would be able to change anybody’s mind. And I don’t know if my decision would be fair. I really don’t.” Pursuant to State v. Brown, 235 Conn. 502, 526, 668 A.2d 1288 (1995) (en banc), the court decided to hold a hearing, at which it would call each of the jurors into open court to investigate the allegations of jury misconduct and to determine whether such conduct prejudiced the defendant.

Shortly thereafter, the trial court began the hearing by summoning juror C. C testified that there had been some discussion among the jurors concerning the attorneys’ demeanor during the trial. With respect to the prosecutor, some jurors made derogatory comments about his speaking abilities. C told the court that, in an effort to defend the prosecutor’s speech, she had informed the other jurors that the prosecutor suffered from a brain tumor. She had learned this information from a family member. Following C’s testimony, the court asked C if the extraneous information she had heard would affect her ability to decide the case in a fair and impartial manner. She responded in the negative.

The court continued the hearing by summoning each of the jurors. While some jurors testified that they had discussed minor extraneous information regarding the attorneys, others testified that they had not even heard such discussions. Nevertheless, upon inquiry by the court, all of the jurors stated that they could decide the case solely on the evidence and the law in a fair and impartial manner.

The trial court also asked juror O how she had learned when the presentation of evidence would be completed. O informed the court that she knew the wife of an attorney who was acquainted with the defense counsel. According to O, she had not discussed substantive issues regarding the case itself with the attorney’s wife. They had discussed, however, approximately how long the case would last. The court inquired of O whether she could decide the case in a fair and impartial manner in light of her conversation with the attorney’s wife. In response, O emphasized that she could decide the matter fairly.

At the conclusion of the hearing, the defendant filed a motion for a mistrial based on the discussions by various jurors of extraneous information. The trial court denied the motion. In doing so, the court acknowledged concern over the jurors’ discussions regarding extraneous information but ultimately decided that they could decide the case fairly and impartially.

The court subsequently addressed the jury collectively and instructed it that the case must be decided solely on the evidence and the law, and in a fair and impartial manner. The court further stated that neither the personalities of the attorneys nor sympathy for any party should play a role in the jury’s deliberations.

The court decided to interview the jurors individually a second time. In the process, five jurors informed the court, without hesitation, that they could decide the case fairly and impartially. When the court questioned juror L as to whether he could so decide the case, L hesitated but eventually informed the court that he was concerned because the other jurors were attempting to sway his decision. L expressed concern that such pressure made him feel as though his decision could not be fair. The court, at length, explained to L that even though the jury verdict has to be unanimous, each juror would have to resolve the matter in his or her own mind. After hearing the trial court’s explanation, L noted that he could weigh the evidence and come to a conclusion in a fair manner. The court ordered the jury to continue with deliberations.

On that same day, the jury returned a verdict of guilty. The defendant filed a motion for a new trial based on the same claims of jury misconduct that he had raised in his motion for a mistrial. In denying the motion for a new trial, the court reasoned that no jury misconduct had occurred that prejudiced the defendant. The court, in addition, stated that L’s concerns were the result of pressure that he felt from the other jurors regarding his decision in the case. This appeal followed.

The defendant claims that the court improperly denied his motions for a mistrial and for a new trial that were based on allegations of jury misconduct and, thus, violated his right to a fair trial. We are not persuaded.

As a threshold matter, we set forth the proper standard of review applicable to this matter. “In . . . review of the denial of a motion for mistrial, [our Supreme Court has] recognized the broad discretion that is vested in the trial court to decide whether an occurrence at trial has so prejudiced a party that he or she can no longer receive a fair trial. The decision of the trial court is therefore reversible on appeal only if there has been an abuse of discretion.” (Internal quotation marks omitted.) State v. Anderson, 255 Conn. 425, 435, 773 A.2d 287 (2001).

When presented with allegations of jury misconduct, a trial court should exercise its discretion wisely because such allegations have serious implications. “Jury impartiality is a core requirement of the right to trial by jury guaranteed by the constitution of Connecticut, article first, § 8, and by the sixth amendment to the United States constitution. . . . [T]he right to a jury trial guarantees to the criminally accused a fair trial by a panel of impartial, indifferent jurors. . . . The modern jury is regarded as an institution in our justice system that determines the case solely on the basis of the evidence and arguments given [it] in the adversary arena after proper instructions on the law by the court. . . .

“To ensure that the jury will decide the case free from external influences that might interfere with the exercise of deliberate and unbiased judgment ... a trial court is required to conduct a preliminary inquiry, on the record, whenever it is presented with information tending to indicate the possibility of juror misconduct or partiality. ... [A] trial court should consider the following factors in exercising its discretion as to the form and scope of a preliminary inquiry into allegations of jury misconduct: (1) the criminal defendant’s substantial interest in his constitutional right to a trial before an impartial jury; (2) the risk of deprivation of the defendant’s constitutional right to a trial before an impartial jury, which will vary with the seriousness and the credibility of the allegations of jury misconduct; and (3) the state’s interests of, inter alia, jury impartiality, protecting jurors’ privacy and maintaining public confidence in the jury system. . . .

“Any assessment of the form and scope of the inquiry that a trial court must undertake when it is presented with allegations of jury [bias or] misconduct will necessarily be fact specific. No one factor is determinative as to the proper form and scope of a proceeding. It is the trial court that must, in the exercise of its discretion, weigh the relevant factors and determine the proper balance between them. . . . Consequently, the trial court has wide latitude in fashioning the proper response to allegations of juror bias. . . . We [therefore] have limited our role, on appeal, to a consideration of whether the trial court’s review of alleged jury misconduct can fairly be characterized as an abuse of its discretion. . . . Although we recognize that trial [c] ourts face a delicate and complex task whenever they undertake to investigate reports of juror misconduct or bias ... we nevertheless have reserved the right to find an abuse of discretion in the highly unusual case in which such an abuse has occurred. . . . Ultimately, however, [t]o succeed on a claim of [juror] bias the defendant must raise his contention of bias from the realm of speculation to the realm of fact. . . . Finally, when, as in this case, the trial court is in no way responsible for the alleged juror misconduct, the defendant bears the burden of proving that the misconduct actually occurred and resulted in actual prejudice.” (Citation omitted; internal quotation marks omitted.) State v. Feliciano, 256 Conn. 429, 447-49, 778 A.2d 812 (2001).

Applying these principles to the present case, we conclude that the trial court did not abuse its discretion in finding that the defendant failed to meet his burden of proving that the misconduct actually occurred and resulted in actual prejudice. The court conducted a thorough inquiiy by interviewing each juror and, by doing so, adequately shielded the defendant’s right to a fair trial before an impartial jury. The court did determine that some jurors mentioned extraneous information, such as juror O’s comment about the date at which evidence would close, juror C’s explanation regarding the prosecutor’s speech and her statement that the defendant made her nervous when he looked at her. Nonetheless, the court found that the comments would not result in actual prejudice to the defendant. The court asked all of the jurors whether they could be impartial and base their decisions solely on the evidence. Nearly all of the jurors, except juror L, responded in the affirmative without reluctance. Ultimately, juror L agreed that he could be fair and impartial. Acting within the scope of its duty, the court determined that the jurors were credible in responding that they could be fair and that they could base their decisions solely on the evidence presented at trial. See State v. Newsome, 238 Conn. 588, 631, 682 A.2d 972 (1996) (trial court that conducts inquiry in best position to assess testimony of those on jury panel). We conclude that the court did not abuse its discretion in denying the defendant’s motions for a mistrial and for a new trial that were based on allegations of jury misconduct.

The judgment is affirmed.

In this opinion the other judges concurred.

         General Statutes § 53a-lll (a) provides in relevant part,: “A person is guilty of arson in the first degree when, with intent to destroy or damage a building ... he starts a fire or causes an explosion, and (1) the building is inhabited or occupied or the person has reason to believe the building may be inhabited or occupied; or (2) any other person is injured, either directly or indirectly; or (3) such fire or explosion was caused for the purpose of collecting insurance proceeds for the resultant loss; or (4) at the scene of such fire or explosion a peace officer or firefighter is subjected to a substantial risk of bodily injury.”

       We use the initials of the jurors to protect their legitimate privacy interests.

       In the alternative, the defendant requests that we exercise our supervisory powers over the administration of justice and order a new trial. As authority for his position, the defendant cites in his brief to State v. Anderson, 55 Conn. App. 60, 69, 738 A.2d 1116 (1999), in which we exercised our supervisory powers under circumstances similar to those in the present case. Since the parties filed their briefs, however, our Supreme Court has reversed that decision. State v. Anderson, supra, 255 Conn. 425. We therefore decline the defendant’s invitation to exercise our supervisory powers on this matter.


source: Caselaw Access Project

author: FOTI, J.

license: Public Domain

text:
    JANE BAILEY v. STATE OF CONNECTICUT
    (AC 20350)
    Foti, Schaller and O’Connell, Js.

      Argued May 31
    officially released September 11, 2001

      Brian W. Prucker, for the appellant-appellee (plaintiff).

      Donna J. Hixon-Smith, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and William, J. McCullough, assistant attorney general, for the appellee-appellant (defendant).
   FOTI, J.

The plaintiff, Jane Bailey, appeals from the November 30,1999 decision of the workers’ compensation review board (board) reversing in part and affirming in part the decision of the workers’ compensation commissioner (commissioner). The plaintiff claims that the board improperly reversed that portion of the commissioner’s decision awarding her $12,000 in attorney’s fees. The defendant state of Connecticut cross appeals from the board’s decisions of January 12, 1999 and November 30, 1999. On its cross appeal, the defendant claims that the board improperly upheld the commissioner’s decision to grant the plaintiffs motion for a protective order that precluded the defendant from requesting an independent medical examination of the plaintiff. We affirm the board’s November 30,1999 decision to reverse the commissioner’s award of $12,000 in attorney’s fees. We conclude, however, that the commissioner improperly precluded the defendant from requesting an independent medical examination of the plaintiff. Accordingly, we reverse the board’s January 12, 1999 and November 30, 1999 decisions in all other respects and remand the case to the board with direction to remand the matter to the commissioner for further proceedings consistent with this opinion.

The following facts and procedural history are relevant to the present appeals. In June, 1994, the commissioner found that the plaintiff had suffered from a compensable psychiatric condition related to workplace stress that she experienced in 1991. Neither party appealed from that decision. After conducting further hearings, the commissioner issued a supplemental finding and award in August, 1995. The commissioner, in that finding and award, found that the plaintiff was totally disabled from May 17,1991, to January 20,1994, and ordered the defendant to pay specific compensation and fees owed to the plaintiff. The commissioner also found a reasonable attorney’s fee to be $12,000. The commissioner, however, did not order the defendant to pay that amount.

The defendant appealed to the board from that supplemental finding and award. On September 3, 1996, the board reversed the commissioner’s finding and award, and remanded the matter to the commissioner for further proceedings to determine the extent of the plaintiffs disability. See Bailey v. State, 15 Conn. Workers’ Comp. Rev. Op. 433 (1996). This court dismissed the plaintiffs appeal from that decision for lack of a final judgment. Thereafter, the commissioner conducted further hearings to ascertain the extent of the plaintiffs disability between the date of her injury and January 20, 1994.

On August 14, 1997, the commissioner granted the plaintiffs motion for a protective order. That order precluded the defendant from conducting further cross-examination of the plaintiff and from requesting an independent medical examination of the plaintiff. The commissioner subsequently denied the defendant’s motion for clarification of that order. The defendant appealed to the board from those interlocutory orders. On January 12, 1999, the board affirmed the commissioner’s rulings insofar as they related to the plaintiffs claim for benefits through January 20, 1994. Bailey v. State, No. 3694 CRB-01-97-09 (January 12, 1999).

The commissioner ultimately issued his findings of facts and his award on remand. The commissioner ordered the defendant to pay to the plaintiff temporary total disability payments and medical bills for the period of April 30,1991, through January 20,1994. The commissioner also ordered the state to pay to the plaintiff “the $12,000 attorney’s fee award previously assigned by [the commissioner] which has not been appealed” and an attorney’s fee of $7500 for the defendant’s unreasonable contest of the plaintiffs claim for benefits. He further ordered the defendant to pay the plaintiffs health insurance premiums during her period of disability, including a reimbursement of premiums she had paid.

The defendant appealed to the board from that finding and award, and on November 30, 1999, the board affirmed the finding and award with the exception of the $12,000 award of attorney’s fees. Bailey v. State, No. 3922 CRB-02-98-10 (November 30, 1999). Both parties then filed the present appeals.

PLAINTIFF’S APPEAL

The plaintiff argues that the board improperly reversed the commissioner’s award of $12,000 in attorney’s fees. We disagree.

We first set forth our standard of review. “The conclusions drawn by [the commissioner] from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. . . . Neither the review board nor this court has the power to retry facts.” (Internal quotation marks omitted.) Gibbons v. United Technologies Corp., 63 Conn. App. 482, 485, 777 A.2d 688, cert, denied, 257 Conn. 905, 777 A.2d 193 (2001). “Our scope of review of [the] actions of the [board] is . . . limited. . . . [However,] [t]he decision of the [board] must be correct in law, and it must not include facts found without evidence or fail to include material facts which are admitted or undisputed.” (Internal quotation marks omitted.) Bryan v. Sheraton-Hartford Hotel, 62 Conn. App. 733, 739, 774 A.2d 1009 (2001).

The plaintiff argues that the commissioner, in his supplemental finding and award, dated August 14,1995, awarded $12,000 in attorney’s fees to the plaintiff because he found that the defendant unreasonably contested or unreasonably delayed her claim for benefits. She further argues that the commissioner made a “technical defect” in his decision by failing to include the payment of the $12,000 in his order. The plaintiff next asserts that the commissioner, on remand from the board, possessed the authority to “consider ancillary issues on remand.” It follows, she argues, that the commissioner, in his October 20, 1998 finding and award, properly cured the “technical defect” in the commissioner’s August 14, 1995 order when he included the payment of the fees in his order.

The board concluded that the commissioner, in his August 14, 1995 finding and award, did not order the defendant to pay the $12,000 in attorney’s fees to the plaintiff. The board did not find any evidence that the commissioner had found that the defendant had unreasonably contested the claim or had caused an undue delay in the payment of compensation benefits. The board noted that it declined to presume that the commissioner intended, at that time, to order the defendant to pay attorney’s fees under General Statutes § 31-300. The board concluded that, rather than ordering the payment of attorney’s fees, the commissioner invited the two law firms that had been involved in presenting the plaintiffs case to submit to him either an agreement for fee apportionment or their respective claims concerning apportionment within sixty days.

After reviewing the commissioner’s August 14, 1995 finding and award, we conclude that the board properly concluded that the commissioner did not order the defendant to pay attorney’s fees to the plaintiff. The plaintiff argues that the commissioner’s failure to so order was a “technical defect” that the commissioner, in his October 20, 1998 finding and award, had the authority to cure. We cannot agree with that proposition for several reasons. First, it is contrary to the commissioner’s August 14, 1995 finding and award. Apart from not including an order for payment of attorney’s fees in his finding and award, the commissioner neither cited to § 31-300 nor found that the defendant had acted in an unreasonable manner or had caused an undue delay. Such a finding is a necessary predicate to an order to pay attorney’s fees under § 31-300.

Second, the defendant appealed to the board from the commissioner’s August 14,1995 supplemental finding and award. It challenged the commissioner’s finding only as it related to the extent of the plaintiffs disability. The board considered the merits of the defendant’s argument and remanded the matter to the commissioner “for new proceedings concerning the extent of disability.” Bailey v. State, supra, 15 Conn. Workers’ Comp. Rev. Op. 437. We have noted that a lower court is bound to follow the specific direction of an appellate court’s mandate on remand. “[A] trial court cannot adjudicate rights and duties not within the scope of the remand. ... It is the duty of the trial court on remand to comply strictly with the mandate of the appellate court according to its true intent and meaning.” (Internal quotation marks omitted.) Patron v. Konover, 43 Conn. App. 645, 650, 685 A.2d 1133 (1996), cert, denied, 240 Conn. 911, 690 A.2d 400 (1997). Those principles also apply when the board remands an aspect of a dispute to a commissioner for further proceedings.

The board limited the scope of the commissioner’s hearing on remand to ascertaining the extent of the plaintiffs disability. As neither party challenged the commissioner’s resolution of any attorney’s fees issue, the commissioner’s decision regarding attorney’s fees became final; the issue could not be relitigated. The doctrine of “res judicata may operate to preclude a claim decided in a previous proceeding within the same case.” Honan v. Dimyan, 63 Conn. App. 702, 708, 778 A.2d 989 (2001). The board, therefore, properly vacated that part of the commissioner’s award that ordered payment of the “attorney’s fee award previously assigned” by the commissioner.

DEFENDANT’S CROSS APPEAL

The dispositive issue in the defendant’s cross appeal is whether the commissioner improperly granted the plaintiffs motion for a protective order, thereby precluding the defendant from requesting an independent medical examination of the plaintiff. We answer that question in the affirmative.

The following additional facts are necessary for our resolution of this issue. As we previously discussed, the board’s September 3, 1996 decision remanded the case to the commissioner for further proceedings to ascertain the extent of disability between the date of the plaintiffs injury and January 20, 1994. On June 5, 1997, those further proceedings commenced before the commissioner. The defendant represented to the commissioner that, at that June 5, 1997 hearing, the plaintiffs counsel had informed it for the first time that the plaintiff had sustained a recurrence of her work-related psychiatric condition in February, 1995, while working for another employer. The plaintiffs counsel further asserted that, as he claimed that it was causally related to the earlier work-related incident, the plaintiff was entitled to further benefits related to this recurrence.

The defendant further represented that it lacked any and all knowledge of the alleged recurrence prior to the plaintiffs disclosure on the eve of trial. The defendant represented that also on June 5, 1997, the plaintiffs counsel provided it with previously sought names and addresses of the plaintiffs treating physicians, the name of her new employer and a signed authorization that permitted the defendant to obtain records relative to her new injury or recurrence. The defendant subsequently obtained copies of relevant records and scheduled an independent medical examination of the plaintiff on September 18,1997. The defendant further represented that it had informed the plaintiffs counsel of that appointment prior to August 14,1997, when the remand proceedings resumed.

On August 14, 1997, the plaintiff filed a motion for a protective order to prohibit the defendant from recalling the plaintiff as a witness and to prohibit the defendant from requesting an independent medical examination of the plaintiff. The commissioner granted the motion, explaining that he would “not allow further medical exams at this juncture since there has been sufficient time to prepare those exams and to have those exams conducted prior to this matter being presented to me on the remand.” The defendant argued that it had scheduled the independent medical examination as soon as it had in its possession the materials necessary to conduct the examination and that the plaintiff had disclosed information to that end at the June 5, 1997 hearing. The commissioner was not persuaded by the assertions of the defendant’s counsel. Instead, he expressed his dissatisfaction with the manner in which the defendant had presented its case and stated that the defendant should have pursued such discovery matters “a long, long time ago.”

On September 9, 1997, the defendant filed a motion for clarification of the commissioner’s ruling. On September 15, 1997, the commissioner denied the motion. The defendant subsequently appealed from those interlocutory rulings; on January 12, 1999, the board upheld the commissioner’s order as it related to the defendant’s request for an independent medical examination. Bailey v. State, supra, No. 3694 CRB-01-97-09. The board reasoned that the commissioner possessed the authority, under General Statutes § 31-298, to determine whether a request for an independent medical examination, as afforded by General Statutes § 31-294f, was reasonable. The board deferred to the commissioner’s finding that the defendant had not investigated the claim with proper diligence and had not obtained the examination when the commissioner believed it should have, namely, earlier in the proceedings. On October 20,1998, before the board released its decision on the interlocutory rulings, the commissioner issued his findings of fact and award on remand.

“Ordinarily, [an appellate] court affords deference to the construction of a statute applied by the administrative agency empowered by law to carry out the statute’s purposes. . . . [A]n agency’s factual and discretionary determinations are to be accorded considerable weight by the courts. . . . Cases that present pure questions of law, however, invoke a broader standard of review than is ordinarily involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion. . . . Furthermore, when a state agency’s determination of a question of law has not previously been subject to judicial scrutiny . . . the agency is not entitled to special deference.” (Citations omitted; internal quotation marks omitted.) Burke v. Fleet National Bank, 252 Conn. 1, 9-10, 742 A.2d 293 (1999). Whether § 31-294f affords the commissioner the discretion to preclude an independent medical examination has not previously been subject to judicial consideration. As this novel issue presents a question of law, our review is plenary, and we afford no special deference to the commissioner’s interpretation of § 31-2941.

“Where the meaning of a statute [or rule] is plain and unambiguous, the enactment speaks for itself and there is no occasion to construe it. Its unequivocal meaning is not subject to modification by way of construction. ... A cardinal rule of statutory construction is that where the words of a statute [or rule] are plain and unambiguous the intent of the [drafters] in enacting the statute [or rule] is to be derived from the words used.” (Citation omitted; internal quotation marks omitted.) Schiappa v. Ferrero, 61 Conn. App. 876, 882, 767 A.2d 785 (2001). Section 31-294f affords an employer the right to obtain a meaningful, independent medical examination of an injured employee. That statute provides in relevant part: “An injured employee shall submit himself to examination by a reputable practicing physician or surgeon, at any time while claiming or receiving compensation, upon the reasonable request of the employer . . . .” (Emphasis added.) We interpret the legislature’s use of terms in the statute to import a mandatory direction that an examination take place after it is requested by an employer or an insurer. Absent an indication to the contrary, the legislature’s choice of the mandatory term “shaJl” rather than the permissive term “may” indicates that the legislative directive is mandatory. See Cantoni v. Xerox Corp., 251 Conn. 153, 165, 740 A.2d 796 (1999); see also Caulkins v. Petrillo, 200 Conn. 713, 717, 513 A.2d 43 (1986) (legislature’s use of “shall” connotes that performance of statutory requirements is mandatory rather than permissive).

Section 31-298 grants broad authority to a commissioner to carry out the provisions of the Workers’ Compensation Act, General Statutes § 31-275 et seq. A commissioner may, in his or her discretion, exercise those broad, equitable powers even to dismiss a claim in an appropriate case. See Pietraroria v. Northeast Utilities, 254 Conn. 60, 71-72, 756 A.2d 845 (2000). As our Supreme Court has stated, however, a commissioner must always protect the “ ‘substantial rights of the parties’ [which] include the right of the employer . . . independently to examine the claimant, to notice his deposition, and to insist on hearing his personal testimony at a formal hearing.” Id., 72.

Protecting such “substantial rights” is part and parcel of ensuring that each party in a compensation proceeding receives a fair hearing. Workers’ compensation hearings “must be conducted in a fundamentally fair manner so as not to violate the rules of due process. ... A fundamental principle of due process is that each party has the right to receive notice of a hearing, and the opportunity to be heard at a meaningful time and in a meaningful manner.” (Citation omitted.) Bryan v. Sheraton-Hartford Hotel, supra, 62 Corrn. App. 740. Each party has the right to produce relevant evidence and to offer rebuttal evidence. Id.

An employer’s right to obtain an independent medical examination under § 31-294Í is part of an employer’s right to a fair hearing and, specifically, part of its right to be heard. In the present case, the board recognized the commissioner’s concerns that the defendant had not prepared its case in a diligent manner and that the plaintiffs tenuous psychological state weighed against permitting the examination. Bailey v. State, supra, No. 3694 CRB-01-97-09. We disagree, however, with the board’s conclusion that such findings permitted the commissioner to deny the defendant its right to an independent medical examination of the plaintiff.

Given the statutory mandate, the commissioner should have worked with the parties to ensure that the defendant obtained the examination with all deliberate speed, so as not to unduly delay the proceedings, and with consideration for the plaintiffs psychological condition. By precluding the defendant from requesting an examination that the statute permits the defendant to request “at any time,” the commissioner deprived the defendant of its right to a fair hearing. Accordingly, we reverse the decision of the board and remand the matter to the board so that it may remand the matter to the commissioner for further proceedings regarding the disability claim for the period from April 29, 1991, to January 20, 1994.

On the plaintiffs appeal, the November 30,1999 decision of the workers’ compensation review board is affirmed as to the reversal of the commissioner’s award of $12,000 in attorney’s fees. On the defendant’s cross appeal, the January 12, 1999 and November 30, 1999 decisions of the workers’ compensation review board are reversed in all other respects and the case is remanded to the board with direction to remand the matter to the commissioner for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       The defendant raises several other issues in its cross appeal that we need not address because our resolution of the issue relative to the protective order is dispositive.

       General Statutes § 31-300 provides in relevant part: “In cases where the claimant prevails and the commissioner finds that the employer or insurer has unreasonably contested liability, the commissioner may allow to the claimant a reasonable attorney’s fee. . .
      That section also provides that the commissioner may award attorney’s fees in cases in which he or she has found that an employer or insurer has unduly delayed payment of benefits.

       We note, although it does not affect our analysis, that the 1994 and 1995 findings and awards, and the 1998 finding and award, were issued by different commissioners.

       We agree with the board that the commissioner’s award of $7500 in attorney’s fees under General Statutes § 31-300 for unreasonable contest of the claim stands on different footing. That portion of the commissioner’s award pertained only to the issue properly before the commissioner on remand, that is, ascertaining the extent of the plaintiffs disability. The commissioner awarded $7500 in attorney’s fees because he found it necessary to compensate the plaintiff “for the tíme and expense of trying this case again [on remand] when the [defendant] still produced no credible evidence that the [plaintiff] had a work capacity.” As the board concluded, “an award of attorney’s fees for unreasonable contest is a possibility in any proceeding, even if that proceeding is a remand for a full hearing on one particular period of disability.” Bailey v. State, supra, No. 3922 CRB-02-98-10. In other words, although the commissioner was limited to the board’s order on remand, it was nevertheless within his discretion to order attorney’s fees under § 31-300 if he found that the defendant’s conduct in regard to the matter properly before him on remand warranted such sanction.
      Nevertheless, given our resolution of the defendant’s cross appeal, we shall set aside this award of attorney’s fees. An award of attorney’s fees under § 31-300 follows a finding that an employer or insurer has unreasonably contested liability. It follows that the commissioner in the present case cannot reach such a conclusion until after the issues are fully litigated on remand.

       When remand proceedings began on June 5, 1997, the parties disagreed as to whether new periods of disability could be addressed during the remand proceedings. The defendant argued against having the commissioner address issues related to the new injury at that time. The commissioner limited the issues before him in accordance with the remand order. The commissioner did rule, however, that the plaintiff would testify about her original disability and about her recurrence, despite the fact that any issues concerning the recurrence were not before him at that time. The commissioner further ruled that a transcript of the plaintiffs testimony would be sent to an independent medical examiner and that if such examiner felt it necessary to conduct further examination of the plaintiff, the commissioner would address the issue at that time. As the board noted, the commissioner so ruled because he wanted to complete the plaintiffs testimony in one session due to her “tenuous psychological state.” Bailey v. State, supra, No. 3694 CRB-01-97-09.

       General Statutes § 31-298 provides: “Both parties may appear at any hearing, either in person or by attorney or other accredited representative, and no formal pleadings shall be required, beyond any informal notices that the commission approves. In all cases and hearings under the provisions of this chapter, the commissioner shall proceed, so far as possible, in accordance with the rales of equity. He shall not be bound by the ordinary common law or statutory rules of evidence or procedure, but shall make inquiry, through oral testimony, deposition testimony or written and printed records, in a manner that is best calculated to ascertain the substantial rights of the parties and carry out the provisions and intent of this chapter. No fees shall be charged to either parly by the commissioner in connection with any hearing or other procedure, but the commissioner shall furnish at cost (1) certified copies of any testimony, award or other matter which may be of record in his office, and (2) duplicates of audio cassette recordings of any formal hearings. Witnesses subpoenaed by the commissioner shall be allowed the fees and travel expenses that are allowed in civil actions, to be paid by the party in whose interest the witnesses are subpoenaed. When liability or extent of disability is contested by formal hearing before the commissioner, the claimant shall be entitled, if he prevails on final judgment, to payment for oral testimony or deposition testimony rendered on his behalf by a competent physician, surgeon or other medical provider, including the stenographic and videotape recording costs thereof, in connection with the claim, the commissioner to determine the reasonableness of such charges.”

       General Statutes § 31-294Í (a) provides: “An injured employee shall submit himself to examination by a reputable practicing physician or surgeon, at any time while claiming or receiving compensation, upon the reasonable request of the employer or at the direction of the commissioner. The examination shall be performed to determine the nature of the injury and the incapacity resulting from the injury. The physician or surgeon shall be selected by the employer from an approved list of physicians and surgeons prepared by the chairman of the Workers’ Compensation Commission and shall be paid by the employer. At any examination requested by the employer or directed by the commissioner under this section, the injured employee shall be allowed to have in attendance any reputable practicing physician or surgeon that the employee obtains and pays for himself. The employee shall submit to all other physical examinations as required by this chapter. The refusal of an injured employee to submit himself to a reasonable examination under this section shall suspend his right to compensation during such refusal.”

       As our resolution of this appeal permits the defendant to request an independent medical examination of the plaintiff, we expect the commissioner, on remand, to permit the defendant to conduct any additional cross-examination that it deems necessary and that the commissioner deems relevant to the issues before him or her.


author: FLYNN, J.

text:
    MICHAEL AMMIRATA ET AL. v. ZONING BOARD OF APPEALS OF THE TOWN OF REDDING ET AL.
    (AC 20640)
    Foti, Flynn and Peters, Js.

      Argued February 22
    officially released September 18, 2001

      Paul L. Bollo, for the appellants (plaintiffs).

      Peter S. Olson, with whom was Gerald C. Pia, Jr., for the appellees (named defendant et al.).
   Opinion

FLYNN, J.

The plaintiffs, Michael Ammirata and Margaret Ammirata, appeal from the judgment of the trial court dismissing their appeal from the decision of the defendant zoning board of appeals of the town of Redding (zoning board), which sustained the issuance of a cease and desist order by the Redding zoning enforcement officer, the defendant Aimee Pardee (zoning officer).

On appeal, the plaintiffs claim that (1) the Redding zoning commission (zoning commission) is barred by the principles of res judicata and collateral estoppel from asserting zoning violations that it has litigated or had the opportunity to litigate in a prior zoning action against the plaintiffs, (2) the zoning commission is prohibited from asserting against them a 1975 setback regulation that is not part of the current regulations that were adopted in 1986, (3) the application of a zoning regulation requiring a land management plan for a prior nonconforming use violates General Statutes § 8-2 (a) and § 5.17 of the Redding zoning regulations, which protect nonconforming uses, (4) General Statutes § 19a-341, concerning the right to farm, bars the zoning commission from requiring a management plan for farm property and (5) the doctrine of municipal estoppel prohibits the town of Redding from enforcing its regulations. We affirm the judgment of the trial court.

We glean the following facts and procedural history from the court’s memorandum of decision and from the record. The plaintiffs own a 2.56 acre parcel at 145 Mountain Road (property) in Redding. The plaintiffs occupied the premises in 1978 and acquired title to the property on July 20, 1982. The property is located in a R-2 zone, formerly known as “Residential and Farming District A.”

On October 21, 1998, the zoning officer wrote to the plaintiffs, requesting that they file a land management plan and that they observe the twenty-five foot setback of paddocks mandated by the zoning regulations. The plaintiffs did not submit a management plan. On February 11,1999, the zoning officer issued a cease and desist order to the plaintiffs for the following alleged violations of the zoning regulations. First, the paddocks on the north end of their property did not conform with the twenty-five foot setback requirement and, second, the plaintiffs had failed to submit a management plan to the zoning commission.

The plaintiffs on February 25, 1999, filed an appeal with the zoning board from the cease and desist order. On March 16, 1999, the zoning board denied their appeal, and upheld the cease and desist order. The plaintiffs then appealed to the trial court from that decision. On July 23,1999, the court issued a permanent injunction against the plaintiffs, enjoining them from permitting any of the following conditions to exist on their property: (1) “the simultaneous maintenance of more than nine horses on the premises, unless the [plaintiffs] shall apply for and receive approval for a land management plan pursuant to the zoning regulations of the town of Redding permitting more than such number of horses; for the purposes of this injunction only, the [plaintiffs] shall be considered to have maintained a particular horse on the premises if such horse remains on the premises overnight,” and (2) “the existence of any signs on the premises except as expressly permitted by the zoning regulations of the town of Redding.”

On January 7, 2000, the court upheld the decision of the zoning board, ordering the plaintiffs to submit a land management plan within forty-five days of the date of that judgment, and to cease and desist from the violation of the twenty-five foot setback regulation. On January 31,2000, the plaintiffs filed a petition for certification to this court, which was granted. The plaintiffs subsequently filed this appeal.

In reviewing the actions of a zoning board, we note that local zoning boards are vested with a liberal discretion. Wnuk v. Zoning Board of Appeals, 225 Conn. 691, 695, 626 A.2d 698 (1993). “The burden of proof to demonstrate that the board acted improperly is upon the party seeking to overturn the board’s decision.” (Internal quotation marks omitted.) Pleasant View Farms Development, Inc. v. Zoning Board of Appeals, 218 Conn. 265, 269-70, 588 A.2d 1372 (1991). “A trial court must . . . review the decision of a zoning board of appeals to determine if the board acted arbitrarily, illegally or unreasonably.” Wnuk v. Zoning Board of Appeals, supra, 695-96. “It is well settled that courts axe not to substitute their judgment for that of the board, and that the decisions of local boards will not be disturbed as long as honest judgment has been reasonably and fairly made after a full hearing . . . .” (Internal quotation marks omitted.) Conetta v. Zoning Board of Appeals, 42 Conn. App. 133, 137-38, 677 A.2d 987 (1996).

Because the trial court, in this case, has made conclusions of law, our review is plenary. Fleet National Bank v. Zoning Board of Appeals, 54 Conn. App. 135, 139, 734 A.2d 592, cert, denied, 250 Conn. 930, 738 A.2d 656 (1999); see also State v. Velasco, 248 Conn. 183, 189, 728 A.2d 493 (1999). “[W]e must decide whether the conclusions are legally and logically correct and supported by the facts in the record.” Fleet National Bank v. Zoning Board of Appeals, supra, 139.

I

The plaintiffs first claim that the zoning commission is barred by the principles of res judicata and collateral estoppel from asserting zoning violations that it has litigated or had the opportunity to litigate in a prior zoning action against them. Specifically, the plaintiffs assert that the stipulated judgment in the prior zoning action requires them to submit a land management plan only if they maintain more than nine horses on their property. Additionally, they assert that the alleged setback violation should have been raised in the prior zoning action and, because it was not, the zoning commission is thereby precluded from raising that claim in the present action. We do not reach the merits of this claim due to an inadequate record.

The court’s memorandum of decision is silent as to the arguments concerning res judicata and collateral estoppel, and the plaintiffs did not seek an articulation from the court in that regard. It is the appellant’s duty to furnish this court with a record that is adequate to afford review. See Practice Book § 60-5. Absent an articulation of the court’s reasoning, we are unable to review the plaintiffs’ claim.

II

The plaintiffs’ second claim is that the zoning commission is prohibited from enforcing against them a 1975 setback regulation that is not part of the current regulations that were adopted in 1986. They further claim that the paddock located on the north side of their property predates the adoption of the 1975 regulation, constitutes a prior nonconforming use and is, therefore, not subject to the regulations. We disagree.

Section IV H (2) of the 1975 zoning regulations established a setback requirement of twenty-five feet for “corrals, runs or similar enclosures.” On the other hand, § 5.14.6 of the 1986 zoning regulations provides that animal enclosures must be set back at least fifty feet from all watercourses, and side and rear lot lines.

The court found that no direct evidence was presented to establish the existence of the plaintiffs’ paddock prior to the adoption of the 1975 regulation. Rather, the record supported the zoning board’s finding that the paddock was built after the 1975 regulation was adopted. As such, the plaintiffs do not have a nonconforming use that would exempt them from conforming to the 1975 regulation. They do not need to comply with the 1986 regulation requiring a fifty foot setback because the plaintiffs’ use became nonconforming subsequent to the twenty-five foot regulation but prior to the fifty foot regulation. Accordingly, the plaintiffs must comply with the 1975 regulation requiring them to abide by a twenty-five foot setback of enclosures.

Ill

The plaintiffs’ third claim is that the application of a zoning regulation requiring a land management plan for a prior nonconforming use violates General Statutes § 8-2 (a) and § 5.17 of the zoning regulations, which protect nonconforming uses. That claim is without merit.

We begin our analysis by reviewing the relevant parts of the statute and. regulation cited by the plaintiffs. Section 8-2 prohibits a municipality from preventing the continuance of a nonconforming use. Section 5.17 of the zoning regulations provides in relevant part: “If a lot, building, structure, or use. of a site was lawfully in existence on the effective date of these Regulations [February 1, 1986] (or on the date of an amendment thereto), to the extent that such lot, building, structure or use did not then conform to these Regulations the same is deemed legally nonconforming . . . .” (Emphasis in original.)

Additional regulations that are instrumental in our resolution of this issue are zoning regulations §§ 5.14.2 and 5.14.3. The land management plan regulation, specifically § 5.14.2, requires that a management plan be approved by the zoning commission for animal raising operations where the number of horses, among other animals, exceeds the stated limit of two horses per lot and one horse per each 0.8 acre of site area. Section 5.14.3 permits the zoning commission to approve a management plan only when no adverse impact will result.

Our case law makes clear that generally a municipality can regulate a nonconforming use. “Regulation of a nonconforming use does not, in itself, abrogate the property owner’s right to his nonconforming use. . . . A town is not prevented from regulating the operation of a nonconforming use under its police powers. Uses which have been established as nonconforming uses are not exempt from all regulation merely by virtue of that status. It is only when an ordinance or regulatory act abrogates such a right in an unreasonable manner, or in a manner not related to the public interest, that it is invalid. Petruzzi v. Zoning Board of Appeals, 176 Conn. 479, 483-84, 408 A.2d 243 (1979); Lampasona v. Planning & Zoning Commission, 6 Conn. App. 237, 239, 504 A.2d 554 (1986).” (Internal quotation marks omitted.) Bauer v. Waste Management of Connecticut, Inc., 234 Conn. 221, 242-43, 662 A.2d 1179 (1995).

Here, the plaintiffs have appealed from the decision of the court that upheld the right of the zoning board to require the plaintiffs to file a management plan for the continued operation of a horse farm. The record is clear that the plaintiffs’ maintenance of nine horses on their property predated the adoption of the management plan regulation and, thus, constitutes a nonconforming use. The town of Redding has the right, under its police powers, to require a land management plan although it cannot attenuate the scope of the plaintiffs’ nonconforming use. The town of Redding has not sought to diminish the lawful, nonconforming utilization of the property, but concedes that it cannot prohibit the continuation of a valid nonconforming use. The plaintiffs argue that because of the nonconforming use of their land, they should be exempted from that form of regulation. We disagree, and determine, as did the trial court, that the plaintiffs are required to file a land management plan with the zoning commission and that, by doing so, their nonconforming use will not be lost.

IV

The plaintiffs’ fourth claim is that § 19a-341 bars the zoning commission from requiring a land management plan for farm property. The plaintiffs maintain that under § 19a-341, notwithstanding any municipal ordinance, their farm cannot constitute a nuisance with respect to, inter alia, odor, noise and dust. They further claim that the requirement of a management plan must be consistent with § 5.3 of the zoning regulations, which sets out standards for, inter alia, odor, noise and dust. The plaintiffs contend, therefore, that the requirement of a management plan “would impose upon [them] strict limits with respect to these matters which, if violated, would constitute a public nuisance in contravention of [§ 19a-341].” We disagree.

Section 19a-341 protects certain agricultural and farming operations from being deemed nuisances. That statute provides in relevant part that “[notwithstanding any general statute or municipal ordinance or regulation pertaining to nuisances to the contrary, no agricultural or farming operation, place, establishment or facility, or any of its appurtenances, or the operation thereof, shall be deemed to constitute a nuisance, either public or private, due to alleged objectionable [odor, noise, dust, use of chemicals or water pollution] . . . .” General Statutes § 19a-341 (a).

The plaintiffs’ argument misses the mark. First, while § 19a-341 may preempt municipal ordinances, it is limited to nuisance ordinances, which are not at issue in this case. Second, as the court properly concluded, the town of Redding exercises legitimate police powers with regard to § 5.3 of the zoning regulations and does not violate § 19a-341 because the plaintiffs’ property has not been declared a nuisance. Accordingly, because § 19a-341 does not apply to the present circumstances, the plaintiffs’ claim must fail.

V

The plaintiffs’ final claim is that the doctrine of municipal estoppel prohibits the town of Redding from enforcing its regulations. The plaintiffs assert that the twenty-five foot setback regulation is unenforceable as to them because of various statements made by municipal officers and employees that the paddock was legally nonconforming and, thus, permissible. We disagree.

Two essential elements must be proven to establish municipal estoppel. First, “the party against whom estoppel is claimed must do or say something calculated or intended to induce another party to believe that certain facts exist and to act on that belief . . . .” (Internal quotation marks omitted.) Dornfried v. October Twenty-Four, Inc., 230 Conn. 622, 635, 646 A.2d 772 (1994). Second, “the other party must change its position in reliance on those facts, thereby incurring some injury.” (Internal quotation marks omitted.) Id. Municipal estoppel is invoked only (1) with great caution, (2) when the resulting violation has been unjustifiably induced by an agent who has authority to handle such matters and (3) in special circumstances where it would be highly inequitable or oppressive to enforce the regulations. Dupuis v. Submarine Base Credit Union, Inc., 170 Conn. 344, 354, 365 A.2d 1093 (1976). Generally, municipal estoppel may not be invoked against a public agency in the exercise of its governmental functions. Bianco v. Darien, 157 Conn. 548, 556, 254 A.2d 898 (1969); State v. Stonybrook, Inc., 149 Conn. 492, 501, 181 A.2d 601, cert, denied, 371 U.S. 185, 83 S. Ct. 265, 9 L. Ed. 2d 227 (1962). An exception to that rule exists, however, for the party claiming estoppel who would suffer a substantial loss as a result of the municipality nullifying the acts of its agents. Dornfried v. October Twenty-Four, Inc., supra, 635.

The plaintiffs were required, therefore, to show that the agents of the town of Redding acted to induce their reliance and that the plaintiffs relied on the town’s actions to their detriment to such an extent that enforcement of the town’s zoning regulation would be “highly inequitable or oppressive.” Zoning Commission v. Lescynski, 188 Conn. 724, 732, 453 A.2d 1144 (1982).

The court, in regard to this claim, determined that no evidence had been presented to show that the paddock was constructed at the direction of any municipal officer or that the plaintiffs would suffer a hardship if the twenty-five foot setback requirement were enforced. The court further noted that “[a]t best, the comments and opinions of Redding officials indicate acquiescence to the location of the paddocks, or a belief arrived at without the benefit of a hearing, that the paddock area was legally nonconforming.” The court properly found that those facts could not form the basis of a successful claim of municipal estoppel and, therefore, concluded that the plaintiffs had failed to sustain their burden of proving municipal estoppel.

We agree with the court’s conclusion and determine that the plaintiffs have offered no evidence that they would suffer a substantial loss if the town of Redding enforced the regulation. Likewise, there is nothing in the record to suggest that the enforcement of the twenty-five foot setback requirement would make it “highly inequitable or oppressive.” Id. We conclude, therefore, that the plaintiffs did not establish the elements necessary for the invocation of the doctrine of municipal estoppel. Accordingly, the defendants are entitled to enforce the twenty-five foot setback regulation against the plaintiffs.

The judgment is affirmed.

In this opinion the other judges concurred.

       In their appeal to the trial court from the zoning board’s decision, the plaintiffs also named as defendants Edward J. Fenwick and Miriam J. Messe, whose property abuts that of the plaintiffs. On appeal, Fenwick and Messe have adopted the brief that was filed by the zoning board and the zoning officer.

       In its memorandum of decision, the court did state the following: “While the town [of Redding] may not have alleged a violation of the setback provision during legal action initiated against the plaintiffs ... a delay in enforcing a regulation will not estop a municipality from exercising its police powers. Ackley v. Kenyon, 152 Conn. 392, 397 [207 A.2d 265] (1965).” That statement coupled with the reference to Ackley, however, refers to the doctrine of municipal estoppel, not to the principles of res judicata or collateral estoppel.

       It should be noted that the plaintiffs did not name the zoning commission as a defendant in this action. We nonetheless address the plaintiffs’ claim regarding the zoning commission because the zoning officer is a party to this appeal and has the authority to enforce regulations. General Statutes § 8-12 specifically permits a zoning officer to enforce regulations.

       Section IVII (2) of the 1975 Redding zoning regulations provides: “Animal shelters, coops and similar structures shall not be located closer than fifty (50) feet from an afijacent property line. No corrals, runs or similar enclosures shall be located closer than twenty-five (25) feet from adjacent property lines.”

       Section 5.14.6 (a) of the 1986 Redding zoning regulations provides in relevant part: “Animal Bams and Pens — Bams, coops, stables, barnyards, exercise pens, riding rings, and other structures for housing or close confinement of animals or birds shall be set back at least fifty (50) feet from all watercourses and from all side and rear lot lines; except where a Land Management Plan is required, the Commission may require up to 100 feet of setback, or intensive screening, or both, where necessary to protect adjoining property. . . .”

       General Statutes § 8-2 (a) provides in relevant part: “The zoning commission of each city, town or borough is authorized to regulate, within the limits of such municipality . . . buildings and other structures .... Such regulations shall not prohibit the continuance of any nonconforming use, building or structure existing at the time of the adoption of such regulations. Such regulations shall not provide for the termination of any nonconforming use solely as a result of nonuse for a specified period of time without regard to the intent of the property owner to maintain that use. ...”

       Section 5.14.3 of the Redding zoning regulations provides in relevant part: “The Land Management Plan shall consist of a map of the site and its immediate environs, showing the extent of the proposed operations, approximate slopes and drainage patterns, general location of streams, wetlands, buildings, [fence lines] and roadways, and shall be accompanied by a written description which explains in detail how the operations shall be conducted, parties responsible, and demonstrates that sound land management practices will be adhered to consistent with Section 5.3 hereof. A public hearing is not required; such plan may be reviewed at any Commission meeting. . . . Where it is satisfied [that] no adverse impact will result to the site or adjacent area, the Commission may approve, or modify and approve with conditions required to protect the environment of the site, such plan at any regular meeting. . . .” (Emphasis added.)

       “A nonconforming use is merely an ‘existing use’ the continuance of which is authorized by the zoning regulations. ... To be a nonconforming use the use must be actual. It is not enough that it be a contemplated use nor that the property was bought for the particular use. The property must be so utilized as to be irrevocably committed to that use. . . . [T]o be irrevocably committed to a particular use, there must have been a significant amount of preliminary or preparatory work done on the property prior to the enactment of the zoning regulations which unequivocally indicates that the property was going to be used for that particular purpose.” (Citations omitted; internal quotation marks omitted.) Wing v. Zoning Board of Appeals, 61 Conn. App. 639, 644-45, 767 A.2d 131, cert, denied, 256 Conn. 908, 772 A.2d 602 (2001).

       In its memorandum of decision, the court stated: “[T]he recognition of the rights of a property owner to use his property consistent with a valid, nonconforming use does not prohibit the Redding zoning commission from adopting reasonable regulations to protect the public health, safety and welfare.
      “Such regulations are applicable to both conforming and nonconforming uses of land. Russo v. East Hartford, 179 Conn. 250, 257 [425 A.2d 1282] (1979) [cert, denied, 445 U.S. 940, 100 S. Ct. 1334, 63 L. Ed. 2d 773 (1980)]; Teuscher v. Zoning Board of Appeals, 154 Conn. 650, 657 [228 A.2d 518 (1967)].”

       Section 5.3 of the Redding zoning regulations provides in relevant part: "Every use and activity shall be conducted in such manner that it is clearly compatible with the health, safety, welfare and property values of the community. ...”
      Section 5.3.1 of the Redding zoning regulations provides: “Any use which results in contamination of air, ground, water or the natural environment, beyond the specific limits prescribed below, is prohibited. Any use which is noxious by reason of emission odor, dust, gases, smoke, noise, vibration, light, radiation, or danger of explosion or other physical hazard is prohibited.”


text:
    JOSEPH S. SANTANGELO v. ELITE BEVERAGE, INC., ET AL.
    (AC 20601)
    Mihalakos, Spear and Flynn, Js.

      Argued April 30
    officially released September 18, 2001

      Otto P. Witt, for the appellant (plaintiff).

      Roland, Stefandl, pro se, the appellee (named defendant), filed a brief.
   Opinion

FLYNN, J.

The plaintiff, Joseph S. Santangelo, appeals from the judgment of the trial court in favor of the individual defendant, Roland Stefandl, on counts one, three, five and six of the plaintiffs complaint, and for the plaintiff on counts two and four against the corporate defendant, Elite Beverage, Inc. (Elite), pursuant to which the court awarded damages to the plaintiff in the total amount of $12,957.91. On appeal, the plaintiff claims that the court improperly (1) refused to pierce the corporate veil to find Stefandl personally liable for the sums adjudged due the plaintiff from Elite, (2) offset damages on the basis of a transaction that was not the subject of the present action, (3) improperly calculated vacation pay, (4) failed to hold Stefandl personally liable for the payment of vacation benefits and (5) failed to award double damages plus attorney’s fees with respect to his vacation pay pursuant to General Statutes § 31-72. We agree that the court improperly offset the award of damages on the basis of a transaction separate from the subject of this action, but disagree with the plaintiffs remaining claims. Therefore, we affirm in part and reverse in part the judgment of the trial court.

The following relevant facts are necessary for our resolution of the plaintiffs appeal. In 1994, Stefandl recruited the plaintiff to establish a bottling business and to serve as its plant manager. From 1994 until 1997, the plaintiff worked in the bottling business, which operated under the name Elite Beverage, Inc., and was wholly owned by Stefandl, its president. During the course of his employment until his termination in 1997, the plaintiff was employed by Elite and paid by Elite and Stefandl.

In its memorandum of decision, the court made the following findings of fact and conclusions of law. As to the first count, the court concluded that Elite was the plaintiffs employer at the time he was discharged. The court further concluded that the corporate veil should not be pierced to hold Stefandl personally liable for past due vacation pay because the plaintiff had not proven the elements of the instrumentality rule that was articulated in Zaist v. Olson, 154 Conn. 563, 575, 227 A.2d 552 (1967), which are necessary to warrant such relief. Specifically, the court found that the plaintiff had failed to prove “that [Stefandl had used his control over Elite as its president and sole shareholder] to ‘commit fraud or wrong, to perpetrate the violation of a statutory or other positive legal duty, or a dishonest or unjust act in contravention of plaintiff s legal rights.’ ”

As to the second count, the court concluded that, on the basis of the plaintiffs weekly pay of $1350 in 1997, the plaintiff had seven days of vacation pay due him and that after making an allowance for the fact that he was paid twice for the last week that he was employed, he was entitled to $540. The court noted that it would not award double damages, attorney’s fees or costs, the awarding of which are within the court’s discretion, because the plaintiff had failed to satisfy the requisite factors as set forth in Sansone v. Clifford, 219 Conn. 217, 229, 592 A.2d 931 (1991).

Regarding the third count, in which the plaintiff sought to hold Stefandl personally liable for a loan that the plaintiff had made to the corporation, the court declined to pierce the corporate veil for the same reasons it stated with respect to count one and found in favor of Stefandl. As to the fourth count, the court concluded that the plaintiff had advanced $35,000 to Elite’s corporate bank account that had not been repaid except for $5000 that the plaintiff had paid back to himself from corporate accounts before he was discharged from employment. Although the court found those sums unpaid, the court also concluded that Elite should receive a $24,999 equitable setoff because of an undisclosed profit that the plaintiff took at Elite’s expense on equipment he sold to Elite at the time he was hired. The court then awarded prejudgment interest of $2416.91 to the plaintiff. We do not summarize the court’s findings of fact and conclusions of law as to the remaining counts because they are not the subject of this appeal.

I

The plaintiff first claims that because there was evidence that Elite transferred $500,000 from its corporate accounts to the corporate accounts of PolyChem Systems, Inc., and because Stefandl was the sole shareholder of both corporations, the court should have found that this transfer was made to avoid claims by Elite’s creditors, such as the plaintiff. He further maintains that under those circumstances, the court was required to pierce the corporate veil and to hold Stefandl personally responsible for corporate debts owed to the plaintiff.

The instrumentality rule announced in Zaist v. Olson, supra, 154 Conn. 575, requires a controlling stockholder to have committed a fraudulent or wrongful act or a dishonest or unjust act or to have violated a statutory or other legal duty in violation of the plaintiffs legal rights that proximately causes the plaintiffs injury. In the present case, the court did not make any such findings concerning the purposes for which the transfer was made.

It is incumbent on the appellant to provide an adequate record for appellate review. See Practice Book § 60-5. Here, the plaintiff did not seek an articulation of the court’s findings. See Practice Book § 66-5. “Our role is not to guess at possibilities, but to review claims based on a complete factual record developed by a trial court. . . . Without the necessary factual and legal conclusions furnished by the trial court . . . any decision made by us respecting [the plaintiffs claim] would be entirely speculative.” (Internal quotation marks omitted.) Gladstone, Schwartz, Baroff & Blum v. Hovhannissian, 53 Conn. App. 122, 127, 728 A.2d 1140 (1999).

The plaintiffs failure to seek an articulation of the court’s reasoning as to its determination results in a record that is inadequate for our review. Accordingly, we decline to review the plaintiffs claim.

II

We next address the plaintiffs claim that the court improperly offset damages on the basis of a transaction that was not the subject of the present action. We agree.

The plaintiff argues that the court improperly gave Elite a credit of $24,999 against a $35,000 loan balance that the court found due the plaintiff as a result of a loan he had made to Elite from his personal funds. The plaintiff claims that the court’s action was improper because of our Supreme Court’s holding in DeCecco v. Beach, 174 Conn. 29, 35, 381 A.2d 543 (1977). The plaintiff maintains that the defendants offered no evidence to show that they did not materially benefit from the agreement under which the court found that the plaintiff had furnished equipment to Elite during its organizational phase for which he was paid $25,000, after representing that it had cost him that sum to purchase it.

The court found that the equipment had cost the plaintiff only $1. The plaintiff maintains that even if the proof offered was legally sufficient, the equipment transaction was a separate and distinct earlier transaction that was not related to the loan in litigation and, therefore, it could not properly be used to reduce the amount he was due on the loan.

We note that count four sounded in unjust enrichment against Elite. Because unjust enrichment is an equitable remedy, one who seeks to prove that he is entitled to the benefit of equity must first come before the court with clean hands. Cohen v. Cohen, 182 Conn. 193, 201, 438 A.2d 55 (1980). DeCecco requires that the party seeking to bar equitable relief by invoking the clean hands doctrine must show that his opponent engaged in wilful misconduct with regard to the matter in litigation. DeCecco v. Beach, supra, 174 Conn. 35. That maxim “only applies to the particular transaction under consideration, for the court will not go outside of the case for the purpose of examining the conduct of the complainant in other matters or questioning his general character for fair dealing.” (Emphasis added; internal quotation marks omitted.) Lyman v. Lyman, 90 Conn. 399, 406, 97 A. 312 (1916). “When a court of equity is appealed to for relief it will not go outside of the subject-matter of the controversy, and make its interference to depend upon the character and conduct of the moving party in no way affecting the equitable right which he asserts against the defendant, or relief which he demands.” (Emphasis added; internal quotation marks omitted.) Id.; 1 J. Pomeroy, Equity Jurisprudence (3d Ed. 1905) § 399. In other words, “[t]he dirt upon [the plaintiffs] hands must be his bad conduct in the transaction complained of. If he is not guilty of inequitable conduct toward the defendant in that transaction, his hands are as clean as the court can require.” 2 J. Pomeroy, Equity Jurisprudence (5th Ed. 1941) § 399.

The matter in litigation in this case involves the repayment of personal loans that the plaintiff made to Elite in 1996 and payment for equipment that the plaintiff provided to Elite in 1994. The plaintiffs prior advancement of equipment to Stefandl at the inception of the bottling business for a price of $25,000 is not at issue in this action. That claim was not pleaded in the complaint. Furthermore, as the court pointed out in its memorandum of decision, the $25,000 of equipment “is a different collection of equipment than that which is the subject of [c]ount [f]ive of the complaint.” As such, the first advancement of equipment was “outside of the subject-matter of the controversy”; (internal quotation marks omitted) Lyman v. Lyman, supra, 90 Conn. 406; and, thus, improperly considered by the court in this action. Additionally, the pleadings do not contain any counterclaim by Elite, alleging that the plaintiff owed it money arising from the same transaction or occurrence, nor was any special defense of setoff or recoupment pleaded. Accordingly, the plaintiffs profit of $24,999 did not make his hands unclean in the matter of the repayment of loans and payment for the second advancement of equipment from which he seeks relief.

Ill

We now address the plaintiffs claims that the court improperly (A) calculated vacation pay, (B) refused to hold Stefandl personally liable for the payment of vacation benefits and (C) failed to award double damages plus attorney’s fees with respect to the plaintiffs vacation pay. We disagree.

A

The court considered all of the evidence and found that the only employment policy that the plaintiff had proved was that he was entitled to three paid sick days per year and five vacation days per year. The court also found that there was no provision for carrying over unused days from one work year to another. Therefore, the court concluded that the plaintiff, at most, was entitled to his accruals for 1997, less whatever he had used in that year. At a weekly pay rate of $1350, the plaintiffs daily rate was $270. After deducting one day of leave that the plaintiff testified to having taken, the court found that seven days were unused at the time of discharge so that the most the plaintiff would be entitled to recover was $1890. The court also found, however, that the defendant mistakenly had paid the plaintiff twice for the last week that the plaintiff had worked. The court, therefore, awarded the plaintiff $540.

We conclude that a fair reading of the court’s memorandum of decision warrants the findings that were made. The plaintiff has failed to show that those findings were clearly erroneous. Although the plaintiff offered testimony that he was entitled annually to two weeks of vacation under the defendants’ vacation policy, the court found that the plaintiffs credibility on that issue was compromised. It is the sole province of the court to determine the credibility of witnesses and the weight to be given to the evidence. Blatt v. Board of Assessment Appeals, 63 Conn. App. 512, 515-16, 776 A.2d 1187 (2001). “The trial court, as the finder of fact, is in the best position to assess the credibility of the witnesses testifying before it.” (Internal quotation marks omitted.) Thomsen v. Aqua Massage International, Inc., 51 Conn. App. 201, 206, 721 A.2d 137 (1998), cert, denied, 248 Conn. 902, 732 A.2d 178 (1999). We cannot disturb those findings or the court’s ultimate conclusions because they are not clearly erroneous. See In re Martin K., 56 Conn. App. 10, 11, 741 A.2d 10 (1999).

B

As to the plaintiffs claim that Stefandl is personally liable for the payment of vacation benefits, the plaintiff argues that the court should have held Stefandl liable in accordance with General Statutes § 31-76k. Section 31-76k provides in relevant part: “If an employer policy . . . provides for the payment of accrued fringe benefits upon termination, including but not limited to paid vacations, holidays, sick days and earned leave, and an employee is terminated without having received such accrued fringe benefits, such employee shall be compensated for such accrued fringe benefits . . . .” (Emphasis added.) “[T]he term employer policy relates not to the employer’s intent with regard to a single employee, but to its intentions regarding either its employees generally or discrete classes of employees.” (Internal quotation marks omitted.) Fulco v. Norwich Roman Catholic Diocesan Corp., 27 Conn. App. 800, 806-807, 609 A.2d 1034 (1992), appeal dismissed, 226 Conn. 404, 627 A.2d 931 (1993).

Here, the plaintiff has failed to establish that there was an “employer policy” entitling him to payment of accrued benefits upon termination. The Elite employee benefits policy did not allow employees to accrue or to carry over fringe benefits. Accordingly, the plaintiff s claim is without merit.

C

As to the remaining claim that the court improperly declined to award double damages and attorney’s fees pursuant to § 31-72, our Supreme Court has held that such awards for double damages are “inappropriate in the absence of the trial court’s finding of bad faith, arbitrariness or unreasonableness.” (Internal quotation marks omitted.) Sansone v. Clifford, supra, 219 Conn. 229. Section 31-72 provides for “a discretionary award of double damages, with costs and reasonable attorney’s fees, to employees who are successful in actions against their employers for wages due.” Crowther v. Gerber Garment Technology, Inc., 8 Conn. App. 254, 264, 513 A.2d 144 (1986).

In the present case, the court found that § 31-72 gave it “the discretion to award double damages, attorney’s fees and costs upon finding a violation of § 31-76k.” The court found “none of the factors that would justify the exercise of that discretion to be present. See Sansone v. Clifford, [supra, 219 Conn. 229].” On the basis of our review of the record, we conclude that the court properly concluded that an award of double damages, attorney’s fees and costs was inappropriate because there is no evidence in the record that the defendants acted with bad faith or arbitrarily or unreasonably.

The judgment is reversed as to the offset of damages and the case is remanded with direction to render judgment for the plaintiff in the amount of $37,956.91, plus interest on the $24,999 that improperly was set off. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       Count five of the complaint alleges that the plaintiff provided equipment to Stefandl in 1994 and that its fair market value was $16,750.


text:
    ELIAS KALIMIAN, TRUSTEE v. ZONING BOARD OF APPEALS OF THE CITY OF NORWICH ET AL.
    (AC 20882)
    Schaller, Dranginis and Flynn, Js.
    Argued May 29
    officially released September 18, 2001

      Bruce G. MacDermid, for the appellant (plaintiff).

      Adam A. Laben, with whom was Ralph Bergman, for the appellee (defendant Steven Brenneisen).
   Opinion

FLYNN, J.

The plaintiff appeals from the judgment of the trial court denying his appeal from the decision by the defendant zoning board of appeals of the city of Norwich (board), which granted the application by the defendant Steven Brenneisen for a variance from two zoning regulations. On appeal, the plaintiff claims that the court improperly (1) concluded that the evidence in the record supported the board’s finding that Brenneisen was entitled to a variance due to hardship and (2) imposed on the plaintiff the burden of proving that the record lacked a factual basis to support the finding of ahardship. We reverse the judgment of the trial court.

The following undisputed facts and procedural histoiy are relevant to our resolution of the plaintiffs appeal. Brenneisen purchased property at 45 Church Street in Norwich. That property was conveyed to Brenneisen by quitclaim deed dated September 4, 1998. The property is in a neighborhood that is principally devoted to residential use. The Norwich zoning regulations do not permit manufacturing within that zone.

On September 14, 1998, Brenneisen applied to the board for a variance from § 9.4.1 (A) (l) of the zoning regulations to permit him to conduct his manufacturing and assembly business on the property. He also sought a variance from § 9.4.3 of the regulations to allow for a waiver of the site plan requirement. The board unanimously approved Brenneisen’s application and granted him a variance as to both sections of the regulations on the ground of hardship. The board did not state the reasons for its decisions on the record.

The plaintiff, the record owner of property across the street from Brenneisen’s property, appealed to the Superior Court from the board’s decision. The plaintiff argued that the board acted illegally, arbitrarily and in abuse of its discretion because it approved Brenneisen’s variance application without enforcing the requirement for a site plan and without any evidence or finding of hardship in violation of General Statutes § 8-6. After searching the record, the court determined that the record contained ample evidence of the hardship that Brenneisen would suffer if the board did not grant the variance. Further, the court found that the plaintiff failed to meet his burden of proving that the record lacked a factual basis to support a finding of hardship. Accordingly, the court denied the plaintiff’s appeal. The plaintiff now appeals from the judgment of the trial court.

At the outset, we note our standard of review. “It is well settled that courts are not to substitute then-judgment for that of the board, and that the decisions of local boards will not be disturbed as long as honest judgment has been reasonably and fairly made after a full hearing . . . .” (Internal quotation marks omitted.) Jaser v. Zoning Board of Appeals, 43 Conn. App. 545, 547, 684 A.2d 735 (1996). “Upon appeal, the trial court reviews the record before the board to determine whether it has acted fairly or with proper motives or upon valid reasons. . . . We, in turn, review the action of the trial court.” (Internal quotation marks omitted.) Whittaker v. Zoning Board of Appeals, 179 Conn. 650, 654, 427 A.2d 1346 (1980). “In light of the existence of a statutory right of appeal from the decisions of local zoning authorities, however, a court cannot take the view in every case that the discretion exercised by the local zoning authority must not be disturbed, for if it did the right of appeal would be empty . . . .” (Internal quotation marks omitted.) Quality Sand & Gravel, Inc. v. Planning & Zoning Commission, 55 Conn. App. 533, 537, 738 A.2d 1157 (1999).

The controlling issue on appeal is whether the court properly concluded that the board’s decision to grant Brenneisen’s application for a variance on the basis of hardship was not arbitrary, illegal or an abuse of discretion. The plaintiff argues that the boar d abused its discretion in granting Brenneisen a variance because an applicant’s voluntary assumption of hardship cannot constitute grounds for a variance. We agree.

We begin our analysis with a review of the law pertaining to variances. “It is well established . . . that the granting of a variance must be reserved for unusual or exceptional circumstances.” Bloom v. Zoning Board of Appeals, 233 Conn. 198, 206-207, 658 A.2d 559 (1995). Accordingly, § 8-6 (a) (3) authorizes a zoning board to grant a variance only when two conditions are met: “(1) the variance must be shown not to affect substantially the comprehensive zoning plan; and (2) adherence to the strict letter of the zoning ordinance must be shown to cause unusual hardship unnecessary to the carrying out of the general purpose of the zoning plan.” (Internal quotation marks omitted.) Mandanici v. Zoning Board of Appeals, 50 Conn. App. 308, 311, 717 A.2d 287, cert, denied, 247 Conn. 935, 719 A.2d 1174 (1998).

Further, the “hardship must arise from . . . circumstances or conditions beyond the applicant’s control.” (Internal quotation marks omitted.) Id. The zoning authority lacks the authority to grant a variance where the claimed hardship is due to some voluntary act of the owner of the property and, therefore, a self-created or voluntarily assumed hardship cannot serve as a valid basis for a variance. Spencer v. Zoning Board of Appeals, 15 Conn. App. 387, 389-90, 544 A.2d 676 (1988).

One specific type of voluntarily assumed hardship is embodied in what has been termed “the purchase with knowledge rule.” R. Fuller, 9 Connecticut Practice Series: Land Use Law and Practice (2d Ed. 1999) § 9.4, p. 190. Under that rule, if a purchaser acquires property with knowledge of the applicable zoning regulations and later attempts to use that property in a manner that is proscribed by the regulations, the purchaser is barred from obtaining a variance. See, e.g., Abel v. Zoning Board of Appeals, 172 Conn. 286, 289-91, 374 A.2d 227 (1977) (where applicant knew at time of purchase that zoning regulations prohibited constructing house on lot of that size and that lot was subject to other restrictions, applicant could not later successfully claim zoning regulations were unjust as applied to him); Devaney v. Board of Zoning Appeals, 132 Conn. 537, 544, 45 A.2d 828 (1946) (where applicant bought property with knowledge that use of property as restaurant was prohibited by zoning regulations, board was without authority to grant variance); Mandanici v. Zoning Board of Appeals, supra, 50 Conn. App. 311-12 (where plaintiff purchased property knowing that use as gasoline station was prohibited in that zone, trial court improperly ordered board to grant variance).

In the present case, by virtue of the zoning regulations in effect, Brenneisen was charged with notice of the fact that he was purchasing property that was not permitted to be used for manufacturing purposes. Despite that knowledge, Brenneisen proceeded with the purchase and then, within a matter of weeks, sought a variance from the regulations to allow him to use the property in the very manner that the regulations prohibited. “He cannot now be heard to complain that the zoning regulations are unjust.” Abel v. Zoning Board of Appeals, supra, 172 Conn. 291. Further, hardship that justifies a zoning board’s decision to grant a variance must arise from the ordinance itself, rather than from the subjective choices of the applicant. Kaeser v. Zoning Board of Appeals, 218 Conn. 438, 445, 589 A.2d 1229 (1991). Brenneisen made a conscious choice to purchase the property knowing that he could not use it for manufacturing purposes. We are bound by precedent in holding that any hardship Brenneisen suffered as a result of being unable to use that property as he had hoped arises not from the application of the ordinance to the property but, instead, from his own conscious decision to purchase the property despite the known prohibition. See Devaney v. Board of Zoning Appeals, supra, 132 Conn. 544; Mandanici v. Zoning Board of Appeals, supra, 50 Conn. App. 311-12. Such voluntary conduct on the part of Brenneisen falls squarely within the purchase with knowledge rule and, therefore, does not constitute ground for a variance.

We conclude that the court improperly determined that the decision of the board was supported by evidence in the record because the board did not have authority in the first instance to grant a variance due to hardship that Brenneisen had voluntarily assumed. Given our resolution of this claim, we need not address the plaintiffs remaining claim.

The judgment is reversed and the case is remanded with direction to render judgment sustaining the plaintiffs appeal.

In this opinion the other judges concurred.

       The parties do not dispute that manufacturing is not permitted in the zone where the Church Street property is located. The return of record reflects that the following uses are permitted in that zone: Apartment house, warehouse, storage, sales office and museum.

       General Statutes § 8-6 (a) provides in relevant part: “The zoning board of appeals shall have the following powers and duties: (1) To hear and decide appeals where it is alleged that there is an error in any order, requirement or decision made by the official charged with the enforcement of this chapter or any bylaw, ordinance or regulation adopted under the provisions of this chapter; (2) to hear and decide all matters including special exceptions and special exemptions under section 8-2g upon which it is required to pass by the specific terms of the zoning bylaw, ordinance or regulation; and (3) to determine and vary the application of the zoning bylaws, ordinances or regulations in harmony with their general purpose and intent and with due consideration for conserving the public health, safety, convenience, welfare and property values solely with respect to a parcel of land where, owing to conditions especially affecting such parcel but not affecting generally the district in which it is situated, a literal enforcement of such bylaws, ordinances or regulations would result in exceptional difficulty or unusual hardship so that substantial justice will be done and the public safety and welfare secured, provided that the zoning regulations may specify the extent to which uses shall not be permitted by variance in districts in which such uses are not otherwise allowed. ...”

       A purchaser of real property is charged with knowledge of the zoning regulations that apply to that property. M & L Homes, Inc. v. Zoning & Planning Commission, 187 Conn. 232, 244-45, 445 A.2d 591 (1982); B.I.B. Associates v. Zoning Board of Appeals, 163 Conn. 615, 616-17, 316 A.2d 414 (1972).