text:
    State of Connecticut v. Stanley Williams
    (6789)
    Borden, Daly and Jacobson, Js.
    Argued March 1
    decision released May 30, 1989

      Vincent Turley, for the appellant (defendant).

      Vincent J. Dooley, deputy asssistant state’s attorney, with whom, on the brief, were Herbert E. Carlson, Jr., assistant state’s attorney, and John Bailey, state’s attorney, for the appellee (state).
   Daly, J.

The defendant appeals from the judgment of conviction, after a jury trial, of assault in the first degree in violation of General Statutes § 53a-59 (a) (l), reckless endangerment in the first degree in violation of General Statutes § 53a-63 (a) and risk of injury to a child in violation of General Statutes § 53-21. The defendant claims on appeal that the trial court erred (1) in finding sufficient evidence to sustain the convictions, and (2) in denying his motion to suppress.

The jury could reasonably have found the following facts. On May 11, 1986, at approximately 6 p.m., the defendant, with whom were two male passengers, parked an automobile in front of 254 Davis Drive in Bristol. Shots were fired from the automobile at the apartment of Linda Dudley, who lived at 254 Davis Drive with her two children, aged four years and nine months. Kenneth Slaughter, Dudley’s boyfriend, was struck in the neck by a bullet fired from a .22 caliber weapon as he approached Dudley’s front door. Dudley and her children were in the apartment at this time. The defendant and his passengers drove away, at which time Dudley fled from her apartment with the four year old child. The nine month old child was left sleeping on a couch in the apartment.

The three men in the automobile returned shortly and several more shots were fired into the apartment. Dudley and her older child returned to the apartment after the second round of shooting ceased and found the baby unharmed. There were, however, bullet holes in the walls of the apartment and the furniture; one bullet was found lodged in the couch on which the baby was sleeping.

The state’s witnesses testified that the defendant fired the weapon from the driver’s seat of the automobile. Defense witnesses claimed the shooting was done by one of the passengers. The defendant had been observed earlier that day at the home of Slaughter’s father carrying a rifle partially wrapped in a jacket and attempting to provoke a fight with Slaughter.

The defendant first challenges the sufficiency of the evidence to sustain his convictions. His sole and specific claim in this regard is that the evidence presented at trial was insufficient to show that he was the perpetrator of the crimes. We disagree.

“ ‘The issue of sufficiency of the evidence and its appropriate standard of review have been analyzed countless times by both this court and our Supreme Court.’ . . . ‘ “The issue is whether the jury could reasonably have concluded, upon the facts established and the reasonable inferences drawn therefrom, that the cumulative effect of the evidence was sufficient to justify the verdict of guflty beyond a reasonable doubt.” ’ ” (Citations omitted.) State v. Ruth, 16 Conn. App. 148, 153, 547 A.2d 548, cert. denied, 209 Conn. 827, 552 A.2d 433 (1988).

The defendant claims that the evidence regarding the identity of the perpetrator was insufficient because certain witnesses identified the defendant as the assailant, while other witnesses named one of the passengers. It is obvious from the verdict that the jury chose to believe the state’s version of the evidence and to disbelieve the defendant’s version. It is for the jury, not this court, “to untangle the knotted and sometimes broken lines of testimony” and to resolve any discrepancies therein. State v. Gaynor, 182 Conn. 501, 504, 438 A.2d 749 (1980). We conclude that, on the basis of the evidence presented at trial, the jury could reasonably have found that the defendant fired the shots, thereby committing the offenses with which he was charged.

The defendant’s final claim of error concerns the trial court’s denial of his motion to suppress certain evidence seized from his car pursuant to a search warrant. Pursuant to General Statutes § 54-33c, he posits a two-pronged attack on the ruling — that an inventory of the property seized was never filed, and that the warrant was not promptly returned — and asserts that under either theory the evidence should have been suppressed.

Certain additional facts are necessary for the disposition of this claim. On May 13, 1986, two days after the shooting incident, Waterbury police officer Edward Stevens located the defendant’s automobile in a parking lot in Waterbury. The Bristol police department had notified the Waterbury police department that the defendant was wanted in connection with the shootings. Upon learning of the automobile’s location, the Bristol police obtained a search warrant for it. While the automobile was in Waterbury, Bristol police officer Edward Wadowski observed the vehicle and noticed two .22 caliber cartridge casings on the shelf below the rear window. When the automobile was returned to Bristol, the interior was searched, and two additional .22 caliber cartridge casings were discovered underneath the rear seat. The four casings were the only items seized from the vehicle. Wadowski testified that he filed the warrant and inventory of the seized property at the Superior Court in Bristol the day after he executed the warrant. At the time of trial, however, the original warrant and inventory could not be located. Donna Fiertek, the clerk of geographical area seventeen, testified that the original warrant and inventory were filed on May 13, 1986.

The defendant moved to suppress the four casings seized from his automobile on the same grounds he now raises on appeal. The trial court denied the motion, finding that Wadowski had prepared an inventory in conjunction with the warrant and had filed it with the warrant, and Wadowski had returned the warrant to court the day after it was executed.

The defendant’s argument is unavailing. The trial court’s conclusions depend on its findings as to the credibility of the witnesses; we are not free to reevaluate that credibility. State v. Coriano, 12 Conn. App. 196, 203, 530 A.2d 197, cert. denied, 205 Conn. 810, 532 A.2d 77 (1987). In view of the evidence presented, we cannot say that the court’s factual finding of compliance with General Statutes § 54-33c was clearly erroneous. Practice Book § 4061.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 53a-59 (a) (1) provides: “A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or dangerous instrument.”

       General Statutes § 53a-63 (a) provides: “A person is guilty of reckless endangerment in the first degree when, with extreme indifference to human life, he recklessly engages in conduct which creates a risk of serious physical injury to another person.”

       General Statutes § 53-21 provides: “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 life or limb is endangered, or its health is likely to be injured, or its morals 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.”

       The Bristol police seized four .22 caliber cartridge casings from the defendant’s car on May 13, 1986.

       General Statutes § 54-33c provides in pertinent part: “The warrant shall be executed within ten days and returned with reasonable promptness consistent with due process of law and shall be accompanied by a written inventory of all property seized.”

       There appears to be a discrepancy in the testimony regarding the return date of the warrant. Fiertek testified that the date was May 13, 1986. According to Wodowski’s testimony, however, the warrant was executed on May 13,1986, and the return date presumably should have been May 14, 1986.

       At the hearing on the motion to suppress, the defendant also argued that his automobile was illegally seized by the Waterbury police department. The trial court found that this initial seizure was reasonable. The defendant has not challenged this finding on appeal.


source: Caselaw Access Project

author: Daly, J.

license: Public Domain

text:
    State of Connecticut v. Richard Cruz
    (7168)
    Spallone, Daly and Jacobson, Js.
    Argued April 7
    decision released May 30, 1989

      Theresa M. Dalton, with whom, on the brief, was Martin J. Minella, for the appellant (defendant).

      John O Meara, deputy assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and CorrineL. Klatb, deputy assistant state’s attorney, for the appellee (state).
   Daly, J.

The sole issue presented in this appeal is whether the trial court properly denied the defendant’s motion to sever the two counts of public indecency brought against him in a single information. The first count charged that the defendant, while in the city of Waterbury on or about August 20,1987, committed the crime of public indecency in violation of General Statutes § 53a-186. The second count also charged the defendant with committing the crime of public indecency. This charge arose out of an incident occurring in Waterbury on or about March or April, 1987. After a jury trial, the defendant was found guilty of the first count and acquitted on the second count. In this appeal from the judgment of conviction, we find no error.

With respect to the charges stemming from the August, 1987 incident, the jury could reasonably have found the following facts. On August 20,1987, the complainant, T, was walking along Long Hill Road in Waterbury on her way to the Naugatuck Valley Mall. As she was walking, a man driving a black Cadillac Seville cut in front of her three times. The complainant noticed that the vehicle had a front license plate that read “Cruz.” On two of the occasions when he cut in front of her, the man told the complainant to come over to his car. He eventually pulled his car next to the complainant; at this point she saw that his pants were around his knees and he was masturbating.

The complainant continued walking on Long Hill Road. She observed the rear license plate on the vehicle and stopped in a nearby restaurant to write it down. She then proceeded to the mall where she notified the Waterbury police of the incident.

At the mall, T encountered M, the complainant in the second count. When T told M what had just occurred on Long Hill Road, M indicated that she had had a similar experience several months earlier. M had not reported the incident at the time it occurred, but informed the Waterbury police of it when she learned that T had experienced a similar incident.

The state presented the following evidence regarding the second charge of public indecency. Sometime in March or April, 1987, M was at the Colonial Plaza in Waterbury with a group of friends. When they arrived at Colonial Plaza, M noticed a man driving a black Cadillac Seville around the parking lot. She noticed that the vehicle had a front license plate that read “R. Cruz.” M and her friends spent some time in a video game room at Colonial Plaza and, on her way out, she again noticed the man in the car. He called her over to his car but she refused to go. M was eventually within several feet of the man’s car and saw that his pants were down and he was masturbating.

The defendant was arrested and charged with two counts of public indecency. At trial, both complainants identified the defendant as the perpetrator.

Prior to trial, the defendant moved to sever counts one and two of the information. The trial court denied the motion. On appeal the defendant claims that he was substantially prejudiced by the joint trial on the two counts because the evidence of one incident would have been inadmissible at a separate trial on the other and the jurors were unable to keep the evidence of these offenses separate in their minds, which led to the prejudicial cumulation of the evidence against him.

“ ‘Pursuant to [Practice Book] § 829 and [General Statutes] § 54-57 a trial court may order a joint trial of charges involving offenses of the same character. Section 829, however, should be read in the light of Practice Book § 828, which permits severance “[i]f it appears that a defendant is prejudiced by a joinder of offenses . . . See State v. King, 187 Conn. 292, 296, 445 A.2d 901 (1982) .... Similarly, in construing § 54-57, we have stated that the question of severance lies within the discretion of the trial court, which should not be interfered with unless it has been manifestly abused. . . . “The discretion of a court to order separate trials should be exercised only when a joint trial will be substantially prejudicial to the rights of the defendant, and this means something more than that a joint trial will be less advantageous to the defendant.” State v. Silver, 139 Conn. 234, 240, 93 A.2d 154 (1952). “[A]n accused bears a heavy burden to show that the denial of severance resulted in substantial injustice . . . .” State v. King, supra, 302 . . . .’ (Citations omitted.) State v. Pollitt, 205 Conn. 61, 67 68, 530 A.2d 155 (1987).” State v. Whittingham, 18 Conn. App. 406, 410, 558 A.2d 1009 (1989).

The defendant first contends that the evidence relating to each of the charges would have been inadmissible at a separate trial of the two. We disagree. “Although evidence of other crimes or uncharged conduct is not admissible to show bad character or a disposition to commit a crime, such evidence is admissible to show such issues as a common scheme, intent, malice, identity, motive or opportunity. ... Of course, this evidence must be relevant and material to an element of the crime and its probative value must outweigh its prejudicial effect.” (Citations omitted.) State v. Greene, 209 Conn. 458, 464-65, 551 A.2d 1231 (1988).

In the present case, the many distinctive factual similarities of the two charges reasonably could have weighed in favor of admissibility to show a common scheme. Both of the incidents involved teenage girls who were approached by an individual with physical characteristics similar to those of the defendant. In each incident, the perpetrator was driving a black Cadillac Seville with a front license plate bearing “Cruz” or “R. Cruz.” In both incidents, the driver called the complainant over to the car. When she refused, the driver pulled his car close enough for her to see inside the car. Finally, in both instances, the driver exposed himself and masturbated in full view of the complainant.

We disagree with the defendant’s contention that the factual similarities between the two charges were not sufficiently distinctive to warrant the admission of that evidence. Relying on State v. Ibraimov, 187 Conn. 348, 446 A.2d 382 (1982), the defendant argues that the number of times that young girls have been called over to a vehicle by a man and become the unwilling witness to indecent exposure are “too great according to general experience to narrow the circle of possible suspects significantly.” See id., 354. The defendant’s argument is unavailing. The factual similarities between the two charges are far greater than the defendant’s characterization of them as “common.” We conclude that the factual similarities between the two incidents in this case are sufficiently distinctive to render the evidence of each admissible to show a common scheme at a trial of the other if they had been tried separately. Accordingly, the defendant was not prejudiced by a single trial on both charges. See State v. Pollitt, supra, 68.

We are similarly unpersuaded by the defendant’s claim that, due to the similarity of the two charges, the jurors improperly confused and cumulated the evidence. “A trial court will not have manifestly abused its discretion in denying severance if the state’s orderly presentation of evidence has prevented confusion of the jury and has enabled the jury to consider the evidence relevant to each charge separately and distinctly.” Id. Moreover, “testimony need not be presented in chronological order to withstand an attack on its potential to confuse the jury.” State v. Greene, supra, 467.

Our review of the transcript reveals that the state’s evidence was straightforward, not complex and presented in an orderly manner. We do not agree that the possibility for jury confusion existed. See State v. Saraceno, 15 Conn. App. 222, 234, 545 A.2d 1116 (1988); see also State v. Greene, supra. Furthermore, this belief is buttressed by the fact that the jury acquitted the defendant of the second count of public indecency. See State v. Whittingham, supra, 413. “ ‘By acquitting the defendant of this one count, the jury demonstrated that it was not simply cumulating evidence in order to decide the case before them, but rather demonstrated that each count was analyzed separately. State v. LoSacco, 11 Conn. App. 24, 27, 525 A.2d 1158 (1988).’ State v. Iovieno, [14 Conn. App. 710, 722, 543 A.2d 766 (1988)]; State v. Saraceno, [supra, 234].” State v. Whittingham, supra.

There is no error.

In this opinion the other judges concurred.


author: Jacobson, J.

text:
    David A. Carlson et al. v. David Fisher et al.
    (6873)
    Dupont, C. J., Stoughton and Jacobson, Js.

      Argued February 7
    decision released May 30, 1989

      Gordon A. Evans, with whom, on the brief, was Richard H. Lamere, for the appellants-appellees (plaintiffs).

      Peter M. Sipples, with whom, on the brief, was Thomas J. Daly, for the appellees (named defendant et al.).

      Thomas E. Crosby, with whom, on the brief, were William F. Gallagher and Gwen B. Weltman, for the appellee-appellant (defendant Steven Leninski).
   Jacobson, J.

The plaintiffs appeal from the judgment of the trial court, Zoarski, J., dismissing their appeal from the decision of the town of Guilford planning and zoning commission which granted a subdivision application for property abutting that of the plaintiffs. They claim the trial court erred (1) in upholding the commission’s approval to resubdivide property and to permit the use of a right of way in a manner that the commission had previously prohibited, despite the failure of the commission to show that circumstances or conditions had changed, (2) in holding that the plaintiffs had failed to prove they were deprived of due process rights when the commission considered, after the public hearing, both a plan by the applicants and recommendation by the town engineer concerning a proposed drainage system,, and an ex parte request by the applicants for a waiver of an open space requirement, (3) in rendering a decision before receiving a full record of the commission’s hearing, and (4) in upholding the commission’s approval of the application even though it violated the town’s zoning regulations.

The defendant Steven Leninski cross appeals from the denial by the trial court, D. Dorsey, J., of a motion to dismiss the plaintiffs’ appeal to the Superior Court, claiming that the plaintiffs failed to follow strictly the statutory requirements for appealing zoning decisions. We find error on the plaintiffs’ appeal and no error on the cross appeal.

The record reveals the following facts. On October 23,1986, George Mordechai and Kevin Shea applied to the commission to resubdivide a 2.7 acre parcel of property into three lots. The parcel was once part of a larger lot that surrounded the plaintiffs’ property on three sides and included a right of way, approximately fifty feet wide, that bordered the plaintiffs’ property on the west side and extbnded north toward Broad Street. The larger parcel also contained a twenty foot strip, bordering the plaintiffs’ land on the north, that extended perpendicularly from the right of way (known and referred to hereafter as Conway Drive) into the eastern region of the larger parcel that surrounded the plaintiffs’ land.

In 1971, subdivision approval was obtained and this larger parcel was subdivided into two lots, 62-1 and 62-2, subject to conditions. One condition required that any building on lot 62-2 have access only from Broad Street, “due to the inadequacy of the driveway in the 50-foot strip to handle additional and emergency traffic.” Conway Drive was contained in lot 62-2. The 1971 subdivision effectively created an H-shape for lot 62-2, with the left leg constituting Conway Drive, the center piece the twenty foot right of way, and the north and south spaces constituting lots 62-1 and the plaintiffs’ property, respectively. The right leg constituted the bulk of the property of lot 62-2.

The owner of the property that was subdivided into lots 62-1 and 62-2 thereafter sold lot 62-1. In 1985, application was made to the commission to subdivide lot 62-2; a public hearing was held and the plaintiffs appeared in opposition. They were concerned that the proposal included use of the twenty foot strip across the north of their property for access to two of the three lots to be created. They argued that the 1971 subdivision approval was conditioned on the fact that any buildings erected on the lot would have access only to Broad Street, and that use of the strip would substantially devalue their property. They also voiced concerns over severe drainage problems on the lots. The 1985 subdivision application, upon suggestion by the commission, was resubmitted as an application for a resub-division. The matter was never considered, however, because lot 62-2 was sold by the owner.

The resubdivision application in this case resembles closely the initial subdivision application proposal presented by the owner of the property in 1985. The commission held a public hearing on December 8,1986, and the plaintiffs appeared, voicing essentially the same arguments expressed during the 1985 hearing. At the close of the hearing, the commission voted to table the application, in order to review the records regarding the 1971 subdivision and to discuss water drainage concerns with the town engineer.

Following the public hearing, the commission received a memorandum by the town engineer, dated December 15,1986, that indicated that he had reviewed plans of a storm sewer system, that they “reasonably addresse[d] the concerns of localized flooding,” and that there would be “no objection to issuance of building permits for these lots” once the system was completed. On the same day, the commission met in executive session and, after some debate, voted to approve the resub-division application, subject to a number of conditions. These appeals followed the trial courts’ decisions to deny the defendant commission’s motion to dismiss and its ultimate decision dismissing the plaintiffs’ appeal.

I

We initially address the defendant Leninski’s claim that the trial court erred in denying the motion to dismiss the plaintiffs’ appeal to the Superior Court. The following facts are pertinent to this claim. The plaintiffs filed their appeal on January 20, 1987, and used a JD-CV-1 civil summons form; the return date was listed, in error, as March 31, 1987, and the named defendants were David Fisher, as chairman of the commission, and Barbara Rawson, town clerk of Guilford. The accompanying complaint and citation referred to the commission as a party defendant.

On February 4, 1987, the plaintiffs filed an amendment to their appeal to reflect that the defendants Fisher and Rawson were served in their representative capacities and that the commission was the designated defendant. This amended appeal, filed on an amended JD-CV-1 summons form, was sent to the defendants on February 2, 1987.

The defendant commission filed a motion to dismiss on March 9,1987, arguing that because the return date should have been March 3, not March 31, 1987, and because the plaintiffs had used an incorrect form to file the appeal and had named the wrong party defendants, the trial court lacked both subject matter jurisdiction and personal jurisdiction, and that the appeal should be dismissed for insufficient service of process.

The trial court found that the plaintiffs’ incorrect use of the JD-CV-1 form, when another form was required, did not defeat jurisdiction. The court cited Chestnut Realty, Inc. v. Commission on Human Rights & Opportunities, 201 Conn. 350, 356, 514 A.2d 749 (1986), which held that providing an improper form used to commence an administrative appeal that “contains a proper citation, signed by a competent authority . . . does not call into question the jurisdiction of the Superior Court to entertain the appeal.” In that case, the court examined the contents of the form and, finding that the information adequately gave notice to the defendant of the nature of the proceedings, it concluded that, absent a showing of prejudice by the defendant, the use of the incorrect form did not mandate dismissal of the administrative appeal. Id., 357.

We conclude that Leninski has failed to show prejudice, and it is evident that the improper form sufficiently advised the defendants of the nature of the proceedings brought against the commission. Therefore, we uphold the decision of the trial court that the improper form used to commence the administrative appeal did not warrant dismissal.

The next question is whether the allegedly incorrect naming of the defendants in the original summons also required dismissal. “ ‘Appeals to courts from administrative agencies exist only under statutory authority. ... A statutory right to appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created.’ ” (Citations omitted.) Basilicato v. Department of Public Utility Control, 197 Conn. 320, 322, 497 A.2d 48 (1985).

The statutory procedure for appeal in this case is found in General Statutes §§ 8-8 and 8-9, which provide in relevant part that such appeals “shall be made returnable to [the superior] court in the same manner as that prescribed for civil actions brought to said court.” General Statutes § 8-8 (a). Further “[n]otice of such appeal shall be given by leaving a true and attested copy thereof with, or at the usual place of. abode of, the chairman or clerk of said board, and by serving a true and attested copy upon the clerk of the municipality.” General Statutes (Rev. to 1987) § 8-8 (b).

Leninski has cited in his brief three Superior Court cases that essentially stand for the proposition that failure to cite the proper party defendant in the writ, summons or complaint deprives the court of subject matter jurisdiction. In this case, however, the citation clearly named the commission as party defendant and it was abundantly clear, throughout the complaint, that the commission was a defendant. The plaintiffs have both cited and served the proper party defendant as required in the statutes. We hold that the plaintiffs complied with the statutory requirements in commencing their appeal and that the trial court did not err in finding that the incorrect designation on the summons form alone did not warrant dismissal.

The final aspect of the commission’s motion to dismiss concerns the incorrect return date. The essence of the claim is that the trial court erred when it allowed the plaintiffs to amend their summons under General Statutes § 52-72 which provides in relevant part that “[a]ny court shall allow a proper amendment to civil process which has been made returnable to the wrong return day or is for any other reason defective, upon payment of costs taxable upon sustaining a plea in abatement.” Leninski argues that applying this provision to zoning appeals frustrates the legislative intent of General Statutes §§ 8-8 and 8-28, which contain abbreviated appeal periods for zoning and planning cases.

It is true that an improperly specified return date affects the court’s jurisdiction. Hartford National Bank & Trust Co. v. Tucker, 178 Conn. 472, 478-79, 423 A.2d 1141 (1979), cert. denied, 445 U.S. 904, 100 S. Ct. 1079, 63 L. Ed. 2d 319 (1980). We agree that the incorrect return date should not be viewed lightly. “The defect of an improper return day is not a minor defect. Rather ... an improper return day is a defect which could not be corrected at all until [General Statutes] § 52-72 was enacted.” Brandriff v. Sellas, 40 Conn. Sup. 243, 244, 488 A.2d 853 (1985). We agree with the trial court, however, that § 52-72 applies to the matter at hand. General Statutes § 8-8 (a) provides that appeals to the Superior Court “shall be made returnable to said court in the same manner as that prescribed for civil actions brought to said court.” The court did not err in finding that the plaintiffs could amend the incorrect return date on their summons. The trial court therefore had jurisdiction to entertain the appeal.

II

The plaintiffs’ first claim is that the trial court erred in upholding the commission’s decision to grant resub-division approval of a plan that included use of a twenty foot strip as access to two interior lots. The plaintiffs argue that the commission had prohibited the use of the strip for buildings erected on the property abutting the plaintiffs’ when it granted subdivision approval in 1971, and that the commission failed to find that, as required by zoning law, a change in circumstances or conditions had occurred since then that would allow it to overrule its 1971 decision.

There appears to be little question that the commission had the authority, in 1971, to grant the subdivision approval subject to the condition that access to lot 62-2 be only from Broad Street, thus, effectively prohibiting further use of the twenty foot strip for access to Conway Drive. General Statutes § 8-26 authorizes municipal planning commissions to consider and act upon subdivision applications, and authorizes the commission to “approve, modify and approve, or disapprove any subdivision or resubdivision application.” Therefore, “it can approve the application exactly as it was submitted; it can make changes to the application to ensure compliance with the subdivision regulations and compatibility with the municipality’s comprehensive plan, and then approve the application as so modified; or it can disapprove the application outright. Any other action taken by the planning commission necessarily falls outside the statutory delegation of powers contained in the enabling act and cannot stand.” Moscowitz v. Planning & Zoning Commission, 16 Conn. App. 303, 309, 547 A.2d 569 (1988).

The commission’s 1971 subdivision application approval, containing the limited access condition, made changes in the application to allay the commission’s concerns about emergency vehicle and normal traffic use of Conway Drive, and, as such, was within the commission’s authority to make. Crescent Development Corporation v. Planning Commission, 148 Conn. 145, 168 A.2d 547 (1961); Moscowitz v. Planning & Zoning Commission, supra, 311 and n.7. The question thus becomes, on appeal, whether the trial court’s finding that the commission’s approval of the resubdivision was proper in that it was adequately based on a finding that circumstances or changes had occurred, between 1971 and 1986, that would allow it to overrule the condition included in the 1971 application it had modified and approved.

Administrative agencies are “impotent to reverse [themselves] unless (1) a change of condition has occurred since its prior decision or (2) other considerations materially affecting the merits of the subject matter have intervened and no vested rights have arisen. Middlesex Theatre, Inc. v. Hickley, 128 Conn. 20, 22, 20 A.2d 412 [1941].” Hoffman v. Kelly, 138 Conn. 614, 616-17, 88 A.2d 382 (1952). “ ‘The principle applies, however, only when the subsequent application seeks substantially the same relief as that sought in the former.’ Fiorilla v. Zoning Board of Appeals, 144 Conn. 275, 279, 129 A.2d 619 (1957).” Grillo v. Zon ing Board of Appeals, 206 Conn. 362, 367, 537 A.2d 1030 (1988). Because the commission’s 1971 subdivision approval was conditioned upon limiting access to buildings on lot 62-2 to Broad Street, due to a perceived “inadequacy of the driveway in the 50-foot strip to handle additional and emergency traffic,” the commission would have had either to articulate how the new proposal did not cause the commission concern for such an inadequacy or to articulate other considerations, substantially affecting their decision, that precipitated their differing conclusion.

It is unnecessary for us to determine whether the 1971 and 1986 applications sought “substantially” the same relief. The minutes of the executive session clearly show that the commission was aware of the 1971 condition and provide adequate evidence that certain considerations, not part of the commission’s 1971 reasoning, caused it to decide that it was not bound by the 1971 condition in granting the resubdivision approval. In particular, the commission’s focus, during its discussion in the executive session, was appropriately directed at the reason the commission had imposed a condition in 1971: the adequacy of Conway Drive to handle emergency vehicles and additional traffic. It was noted that after 1971 police, fire and engineering departments had established criteria to determine safe and adequate driveways for houses and lots, and that Conway Drive fell within those criteria. One member of the commission admitted that he did not understand the reason for the 1971 condition and hypothesized that the earlier approval, anticipating one large lot, reflected the commission’s belief that Broad Street access made better sense. He explained that Conway Drive access to the two interior lots, meeting current town regulations, would be more appropriate.

The plaintiffs debate whether the proposed access, as approved, satisfies current regulations. Specifically, they argue that the regulations prohibit more than five lots’ using a private road, such as Conway Drive, and that because part of the access way is less than twenty-five feet wide, and in some parts only twelve feet wide, the application proposal violates § 4.4.3 of the town zoning regulations. We agree with'the contention of the defendants that the plaintiffs’ reliance on § 4.4.3 is misplaced and that the commission properly construed § 31.2.1 of the zoning regulations and § 4.7 of the subdivision regulations, as amended, to find that interior lots may be created in R-3 zones, as this was, and that the access route satisfied the minimum of twelve feet in width. We also agree with the defendants that the number of lots “served by a single driveway, access way, or private road,” as provided in § 31.2.1 (4) (a) of the zoning regulations, does not exceed five.

We hold that, on the basis of the foregoing considerations and the record before us, the commission acted properly in deciding that the 1971 condition did not bar their 1986 resubdivision approval which authorized the use of Conway Drive for access to the two interior lots.

The plaintiffs’ second claim of error is that they were deprived of due process rights when the commission received a detailed water drainage proposal from the applicants after the public hearing, and, after receiving a favorable recommendation from the town engineer on the basis of that report, voted to approve the plan during executive session. We agree.

The facts pertinent to this claim are as follows. During the public hearing on December 8,1986, the question of water drainage was discussed at length. The engineer for the applicants testified that the town engineer had asked him to “look into alternative systems” for water removal after reviewing the initial proposal. He testified that one proposal that would remove excess water by hooking into the town’s drainage system would force the applicants to increase the size of the town pipes and ultimately cost approximately $65,000, a plan the applicants were “willing to consider seriously.” Following this testimony, questions were opened to the board and to the public. Answering one question, the engineer indicated how the proposed plan utilized catch basins to channel the water to the town’s system. Another question was whether the town engineer agreed that the proposal would rectify the drainage problem, and the engineer responded that the town engineer had suggested the idea to him, but that the town engineer had not “received the technical information on that as yet.”

The plaintiffs’ attorney raised the drainage question again during his statements made at the hearing. He indicated that, while the developers would give serious consideration to spending the $64,000 to $68,000 to put in a system that might alleviate the drainage problem, their merely considering the plan was not enough. “I think that you’ve got to have a plan that’s presented to give opponents a chance to assure themselves that it will, in fact, solve the problems that they’re concerned about because there’s a very real problem . . . and it’s not addressed in anything that’s been submitted to the commission to date.” Later, he stated, “Take a look at what is being proposed to solve the drainage problem. Nothing. They’re willing to give serious considerations to some plans. [The town engineer] doesn’t have the technical details on these plans. If he doesn’t, we don’t either. So I think it’s premature.”

Following his attorney’s statements, the named plaintiff testified to the extensive water drainage problems confronting him. One of his neighbors testified that “if we get any more water from roofs and driveways and parking lots and sewer systems . . . our property is going to become a bayou.”

Testimony at the hearing ceased. The commission ended the hearing by entering into public record two documents from the office of the director of health and town engineer, dated December 8, 1986, and June 10, 1985. The December 8 memo to the commission stated: “Attached is a copy of our memo of June 10, 1985. Since that time no acceptable proposal has been submitted regarding surface water drainage. ... As previously stated, an acceptable comprehensive drainage plan is required prior to action on this proposal.” Relevant portions of the 1985 memo, apparently drafted when the previous owner of the lot had applied for subdivision, indicated that “portions of the overall parcel have suffered from localized ponding of water runoff from the surrounding higher properties. Generally, this has been of little concern because the land has been open, but the proposal to place three large residences with driveways . . . dictate that this flooding be addressed. Prior to approval of this subdivision, a comprehensive site drainage plan will have to be developed and approved.” After the hearing was closed to the public, the commission, during a regular meeting, tabled the application in order to reread the records from the 1971 hearing and to discuss the current proposal with the town engineer.

The resubdivision was considered by the commission the following week in a regular meeting closed to the public. The minutes of the hearing indicated that the town engineer had “received and reviewed the technical details of the drainage system as required by the commission . . . [and had] written a subsequent memo on this review of the drainage design as proposed by the applicant.” The memo, dated that day, indicated approval of the proposed system. The minutes reflect that one of the members opposed the proposal because it was “too dense for the area with the ponding problem,” and the commission chairman responded that while “that was one of the concerns the commission had when [it] asked for an on-site subsurface water drainage plan . . . the applicants’ engineer has come up with one in great detail.” When another member asked the town planner about his opinion on the proposal, he stated that he thought “the issue of the number of lots depended] on the critical variable, the surface water drainage . . . .” He also stated that he was not an expert in that area, but that the town engineer had “reviewed the supplemental data and the detailed design” and believed that the three lots could be served by the proposed plan the applicants’ engineer had designed. He added that the town would benefit “significantly” because the plan would replace a portion of the town’s drainage system with a substantially larger system.

“While proceedings before zoning and planning boards and commissions are informal and are conducted without regard to the strict rules of evidence . . . they cannot be so conducted as to violate the fundamental rules of natural justice.” (Citations omitted.) Pizzola v. Planning & Zoning Commission, 167 Conn. 202, 207, 355 A.2d 21 (1974). “Due process of law requires that the parties involved have an opportunty to know the facts on which the commission is asked to act, to cross-examine witnesses and to offer rebuttal evidence.” Id. To that end, our law holds that zoning boards cannot consider additional evidence submitted by an applicant, without granting the opponents and public the opportunity to examine that evidence and to offer evidence in explanation or rebuttal. Id.

The defendants argue that the plaintiffs were aware of the proposal, eventually approved by the commission, during the public hearing but failed either to rebut the proposal or to request the additional information that was ultimately considered by the commission. The defendants further argue that zoning boards are entitled to receive technical assistance when deciding on matters beyond their expertise, and that this information may be received and discussed in executive session.

Although the latter assertion is true; Pizzola, v. Planning & Zoning Commission, supra, 208, and cases cited therein; it is necessary that the opposition be afforded not only an opportunity to know of the information but also an opportunity to rebut that evidence. Id. Such was not the case here. Even if the plaintiff had an opportunity to know of the detailed specifications submitted by the applicants to the town engineer following the public hearing, the plaintiffs never were given the opportunity to voice their objections, if any, to the proposed water drainage system, obviously an issue that concerned them greatly. We hold, therefore, on the facts of this case, that the plaintiffs were denied their due process rights to cross-examination regarding this evidence and that it was error for the trial court to have upheld the action of the committee on this point.

The plaintiffs’ claim that their due process rights were violated when the commission considered information ex parte also extends to an open space waiver request by the applicants, mailed to the commission sometime before their December 14, 1986 meeting after the public hearing. We disagree with this contention. Under the holding in Pizzola, the general public and opponents of a proposal before the zoning commission have the right to know of and be given an opportunity to rebut information received by the commission, ex parte, from the applicant. We find the standard has been met in this case. The proposal before the board during the public hearing did not contain area reserved for open spaces as required by the town’s regulations. The plaintiffs were given the opportunity to question the proposal’s failure to satisfy the open space requirement during the public hearing, and the transcript shows that, to a slight degree, they did. The applicants’ letter requesting the waiver contained no information about open space that the proposal failed to reflect. Thus, the plaintiffs’ due process rights. were not abridged when the commission received, ex parte, the applicants’ open space waiver request and granted it in executive session.

The plaintiffs’ next claim is that the trial court rendered its decision before it received portions of the record from the 1971 and 1985 subdivision and resubdivision hearings, and therefore committed error. They argue that, because the memorandum of decision was dated December 7, 1987, and the supplemental information in the record was not returned to the court until December 9,1987, the court’s decision was improperly rendered. We disagree. The record indicates that the memorandum of decision was filed on December 10, 1987, and the parties notified on December 14. The final item, a map, was received on December 9,1987. The record was substantially complete prior to December 7,1987. Based on our review of the entire record, there is nothing that suggests that the trial court actually failed to review any evidence. We do not presume that the trial court filed its memorandum of decision without having received and reviewed all of the relevant information.

We next address the plaintiffs’ claim that the commission approved the resubdivision application after ignoring the plaintiffs’ evidence that the resubdivision would impair the value of the plaintiffs’ property in violation of town zoning regulation § 31.2.1. They argue that expert testimony presented during the 1985 hearing and made part of the commission’s current record established that the value of their property would decrease if the proposed additional access over the twenty foot strip was permitted, and that, in the absence of contrary testimony, the commission could not have approved the application.

We disagree. The record, viewed in its entirety, contains a number of reasons why the commission reached its conclusion despite the plaintiffs’ testimony. The applicants engaged a landscape architect to ensure that any negative impact the increased use of the strip might have on the plaintiffs’ property would be minimized or negated. The commission was free to evaluate this evidence and weigh it accordingly with all other testimony. In addition, the minutes of the December 15, 1986 meeting clearly show that property values were discussed by the commission. In conjunction with the other evidence submitted by the applicants suggesting they were concerned that the development harmonize with the existing neighborhood, we will not second-guess the commission and decide that the increased use of the access way would devalue the plaintiffs’ property in violation of zoning regulation § 31.2.1. Thus, the trial court did not err in finding that the commission did not act illegally or arbitrarily. Courts reviewing decisions of local zoning authorities afford them discretion “in determining the public need and the means of meeting it, because the local authority lives close to the circumstances and conditions which create the problem and shape the solution. Stiles v. Town Council, 159 Conn. 212, 219, 268 A.2d 395 (1970).” Burnham v. Planning & Zoning Commission, 189 Conn. 261, 266, 455 A.2d 339 (1983); see Frito-Lay, Inc. v. Planning & Zoning Commission, 206 Conn. 554, 572-73, 538 A.2d 1039 (1988).

The final claim of error advanced by the plaintiffs is that the commission acted illegally or arbitrarily in imposing design restrictions on the structures contained in the proposal. We disagree. The minutes of the December 15, 1986 commission meeting indicate that the members were concerned with the impact of the development on the historic streetscape. To allay their concerns, they attempted to reach agreement with the applicants on a design that would promote the development’s harmony with the historic section of town where the lot is situated. The plaintiffs have not cited any authority for the proposition that towns may not agree with the subdivision applicants on design concerns. In fact, the commission’s action on this point was exercised well within their authority. The trial court did not err in finding that the commission did not act illegally or arbitrarily when it issued its approval of the subdivision including design conditions agreed to by the applicants.

Because we have found that the plaintiffs were deprived of their due process rights when.the commission improperly reviewed the applicants’ water drainage proposal ex parte, and that the commission did not afford the plaintiffs an opportunity to rebut that evidence, justice and fairness require that the resubdivision proposal be remanded to the Guilford planning and zoning commission for a new hearing and proceedings according to law.

There is error, the judgment dismissing the appeal is set aside and the case is remanded for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       The named defendant was sued in his capacity as chairman of the commission. The other defendants in this action are the commission, the town clerk, and Steven Leninski, the owner of the subject property, who was joined pursuant to General Statutes § 8-28 (b) on June 5, 1987.

       The plaintiffs’ remaining claims of error on appeal are considered within the four issues as stated.

       Practice Book § 49, the provision regarding commencement of civil actions generally, specifically prohibits the use of writ of summons form JD-CV-1 when commencing administrative appeals. In such cases, Practice Book forms 204.7 and 204.8 are to be used.

       The facts of this case are distinct from those in Simko v. Zoning Board of Appeals, 205 Conn. 413, 420, 533 A.2d 879 (1987), and its progeny. Unlike those cases, in this case both the chairman of the commission and the town clerk were named in the citation and served. The defendant Leninski’s cross appeal addresses the more narrow issue of whether the statutory procedural requirements were met where only the summons form, and not the citation and complaint, failed to name the commission correctly as a party defendant.

       General Statutes § 8-8 (a) requires appeals from zoning boards be taken “within fifteen days from the date when notice of such decision was published in a newspaper” as provided in the statutes. General Statutes § 8-28, concerning appeals from town planning commissions, contains a similar time limitation.

       We note that whether the relief sought in the applications is substantially the same is for the defendant commission to determine in the first instance. Hotchkiss Grove Assn., Inc. v. Water Resources Commission, 161 Conn. 50, 58, 282 A.2d 890 (1971).

       We agree with Chief Justice Maltbie’s explanation, in dicta, of the law concerning this matter: “ ‘[I]t appears to be well established that a zoning board of appeals or adjustment should not ordinarily be permitted to review its own decisions and revoke action once duly taken. Otherwise there would be no finality to the proceeding; the result would be subject to change at the whim of members or due to the effect of influence exerted upon them, or other undesirable elements tending to uncertainty and impermanence’; [yet] we [have] quoted from a New York decision which states that the principle is not a hard and fast rule, but a board’s reversal of its action should be permitted only ‘when there is justification and good cause.’ People ex rel. Brennan v. Walsh, 195 N.Y.S. 264 [1922].” Dadukian v. Zoning Board of Appeals, 135 Conn. 706, 711-12, 68 A.2d 123 (1949).

       Guilford subdivision regulation § 4.13 provides in part: “Land for parks - . . . and natural open spaces shall be provided and reserved in each subdivision in- accordance with any adopted Comprehensive Plan of Development and Conservation and as deemed necessary and in locations deemed proper by the Commission. . . . Not less than 109Í of the total area of the subdivision shall be so reserved, unless the Commission determines that a lesser area is sufficient to satisfy the need determined by the Commission or that there is no land in the subdivision suitable for such reservation.”

       Plaintiffs’ counsel, during his statement, first argued that the plan should be rejected because the property was contained in an area recommended for preservation by the town’s comprehensive plan. Then he noted: “Indeed, in your subdivision regulations you point out that it’s appropriate in any subdivision to assure yourself that there is some open space or some partial land required.”

       Guilford zoning regulation § 31.2.1 provides in part: “An existing or newly created lot having no frontage or insufficient frontage on a street may be used for the purposes, and subject to the limitations set forth below, provided: 1) it is located in an R-3 . . . District, 2) the access to such lot does not create a traffic or safety hazard nor does the location and layout of such access have a detrimental effect on property values . . . .”

       Our review of the record is limited solely to whether the commission could have approved the proposed resubdivision on the basis that the additional access allowance did not devalue the plaintiffs’ property. The plaintiffs’ appellate brief appears to suggest that the commission was bound also to consider the effect of water drainage problems, caused by the resubdivision, on the plaintiffs’ property value. They have not cited any statute or regulation, however, for this claim. Indeed, their trial brief was limited to the effect the increased accessway usage would have on their property value, and cited only zoning regulation § 31.2.1, supra.

       The design restrictions contained in the conditions for granting the approval are as follows: “4. The facade of the house on Lot #1 shall be well proportioned and arranged with the utmost simplicity and dignity relating to and integrated with the built environment surrounding it in the following manner:
      “a. wooden clapboard siding only
      “b. the cornice of extreme simplicity with nothing but straight moldings employed.
      "c. the windows of double hung sash with multi-panes and a simple casement frame finished with only one or so moldings. The windows shall be well placed foward — almost on the same vertical plane as the outside wall. The juxtaposition of window-to-window and window-to-door arranged in the same classic manner of the surrounding homes of the same general period of the house facade to be built.
      “d. The door shall be framed with pilasters of simple, classic lines, set flat against the house. The door itself, a simple panelled form with at least one molding applied to the casing. Simple crown moldings may be added above the architrave trim.
      “e. The exposed foundation shall be stone or stone facade.
      “f. No garage doors shall be visible from the street.
      “g. If two end chimneys are incorporated in the design of the house on Lot #1, they must be constructed within the exterior end walls, or if one chimney is incorporated in the design of the house on Lot #1, it must be a central chimney.
      “h. The roof slope in relation to the elevation of the structure should be compatible with the rest of the structure and those on Broad Street.
      “It is noted that the above conditions have been agreed to by the applicant^].”

       Guilford subdivision regulations provide in relevant part: “section 4. DESIGN AND CONSTRUCTION STANDARDS.
      “4.1 General: Subdivisions shall be designed to conform to the current Comprehensive Plan of Development and Conservation, adopted by the Commission for the Town or the neighborhood around the subdivision. . . .”
      Guilford Comprehensive Plan of Development and Conservation section 2.2 provides in part:
      “policy: to maintain Guilford as a country town in support of the current manner of living.
      “Special features under the Policy are—
      “b. to encourage site and building design that supports the established character of the Town . . . .”


author: Norcott, J.

text:
    Town of Killingly v. Ralph W. Wells
    (7051)
    Stoughton, Norcott and Jacobson, Js.

      Argued March 8
    decision released May 30, 1989

      Wesley W. Horton, with whom was Alexandra Davis, for the appellant (defendant).

      John D. Bolán, for the appellee (plaintiff).
   Norcott, J.

As part of a condemnation action against property owned by the defendant, Ralph W. Wells, the town of Killingly, on July 6, 1987, filed a statement of compensation, notice and a check for $100,000 with the clerk of the Superior Court at Putnam pursuant to General Statutes § 8-129. On November 30,1987, the defendant applied for a review of the statement of compensation under General Statutes § 8-132. The application for review of the town’s statement of compensation was listed on the short calendar for December 21,1987, at which time the trial court denied the application without a memorandum of decision.

On February 28, 1988, the defendant filed a motion for reconsideration requesting the court to set aside the previous denial of his application for review. The trial court held a hearing on the defendant’s motion and, on May 2, 1988, denied the motion on the ground that it was filed more than six months after the filing of the statement of compensation. In its memorandum of decision, the court also explained that it had denied the defendant’s application of November 30,1987, because the application did not conform to Practice Book Form 404.2. The defendant now appeals claiming error in the trial court’s denial of his initial application for review of the plaintiff town’s compensation statement and from the subsequent denial of his motion for reconsideration. We find error.

The issue presented is whether the defendant’s application for review was legally sufficient under General Statutes § 8-132 to commence the process of review by the Superior Court. Section 8-132 allows a person aggrieved by a statement of compensation to apply to the Superior Court to seek a review of that statement. All parties to this appeal concede, and we agree, that the exact procedure to be followed under the statute is unclear. The trial court determined that the statutory requirements are met only by precisely following the form illustrated in the Practice Book. The plaintiff argues that § 8-132 requires the filing of a separate action to test the adequacy of the condemnation award. The defendant contends that his application, as filed, sufficed to meet the requirements of the statute.

“Where the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision . . . .” Davis v. Naugatuck, 15 Conn. App. 185, 188, 543 A.2d 785 (1988). Although General Statutes § 8-132 sets forth no specific format for the application for review, the Practice Book sets out an example of an application for review in a condemnation proceeding. The Practice Book forms, unless otherwise designated, are illustrative and not mandatory. Practice Book Forms, Preface, p. v. Indeed, the trial court itself noted that there exists no authority for the mandatory use of Form 404.2 in a condemnation proceeding. We therefore conclude that the court erred in denying the defendant’s application based on its lack of conformity with the Practice Book form.

We next turn to the plaintiff’s argument, which we find to be -without merit. The plaintiff cites no authority to support its position, but invites us to find that the statute, as it has been implemented by custom, requires the filing of a separate action, collateral to the condemnation proceeding. We decline the invitation. Although applications for review of statements of compensation have been initiated by way of the filing of a separate action in the Superior Court; see, e.g., McDermott v. New Haven Redevelopment Agency, 184 Conn. 444, 440 A.2d 168 (1981); Wronowski v. Redevelopment Agency, 180 Conn. 579, 430 A.2d 1284 (1980); the statute does not require such a procedure. “A statutory right to appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created.” Farricielli v. Personnel Appeal Board, 186 Conn. 198, 201, 440 A.2d 286 (1982). The language of § 8-132 simply does not mandate the initiation of a separate action to test the adequacy of a condemnation award. When the legislature has required that a separate action be brought in similar matters, it has specifically provided the procedure to be followed. See, e.g., General Statutes § 7-250 (appeal from a town’s assessment of sewer benefits). The statute involved in this case requires only that a condemnee “apply” to the Superior Court, and, thereafter, the court will cause “notice of the pendency of [the] application to be given to said [redevelopment agency] . . . .’’Thus, under the statutory scheme of § 8-132, the court bears the responsibility for giving notice to the town, a responsibility normally associated with one who initiates a cause of action. See General Statutes § 52-45a.

Although we find that § 8-132 does not mandate the filing of a separate action to contest a statement of compensation, our inquiry does not end here. We next must determine whether the defendant’s application for review, as filed, was legally sufficient.

The claimed deficiencies in the application are that the defendant did not (1) entitle the application an “appeal,” (2) describe the property in the application or (3) give an order of notice as set out in the Practice Book form. The statute is entitled “Appeal by owner” while the text of the statute allows an aggrieved person to “apply” to the Superior Court for a review of the statement of compensation. The illustrative Form 404.2 in the Practice Book is entitled “Appeal and Application for Review of Statement of Compensation . . .” combining both terms. We conclude that denial of the request for review based on the failure to use both terms or on the use of the term “application” rather than “appeal” would clearly be improperly elevating form over substance.

With respect to the lack of description in the application for review, we again note that § 8-132 does not require that the condemnee provide a description of the property. Although the property description is essential for the statement of compensation under § 8-129; see Transportation Plaza Associates v. Powers, 203 Conn. 364, 370, 525 A.2d 68 (1987); the lack of such description does not warrant a denial of an application, brought pursuant to § 8-132, which makes specific reference to the statement of compensation and the description of the property therein. We note also that the record indicates that it was abundantly clear to all parties that the defendant’s application for review contested the town’s statement of compensation regarding the defendant’s property as specifically described in the statement of compensation.

As to the order of notice, not only does the statute require the court to provide notice of the application to the town, but we note that counsel for all parties attended the December 21,1987 hearing on the defendant’s application for review, thus indicating that all parties had actual notice.

Our analysis of the defendant’s application leads us to conclude that the defendant sufficiently apprised the town and the court of his opposition to a specific statement of compensation and successfully triggered the statutory procedural mechanism for review of the application. We therefore conclude that the trial court erroneously denied the defendant’s application for review. “Our practice does not favor the termination of proceedings without a determination of the merits of the controversy where that can be brought about with due regard to necessary rules of procedure.” Johnson v. Zoning Board of Appeals, 166 Conn. 102, 111, 347 A.2d 53 (1974). Because of our conclusion, we need not reach the defendant’s other claim of error.

There is error, the judgment is set aside and the case is remanded to the trial court for referral of the defendant’s application to a state trial referee for review of the statement of compensation.

In this opinion the other judges concurred.

       General Statutes § 8-132 provides: “appeal BY OWNER. Any person claiming to be aggrieved by the statement of compensation filed by the redevelopment agency may, at any time within six months after the same has been filed, apply to the superior court for the judicial district in which such property is situated, or, if said court is not in session, to any judge thereof, for a review of such statement of compensation so far as the same affects such applicant, and said court or such judge, after causing notice of the pendency of such application to be given to said redevelopment agency, shall appoint a state referee to make a review of the statement of compensation. Such referee, having given at least ten days’ notice to the parties interested of the time and place of hearing, shall hear the applicant and said redevelopment agency, shall view the property and take such testimony as such referee deems material and shall thereupon revise such statement of compensation in such manner as he deems proper and forthwith report to the court. Such report shall contain a detailed statement of findings by the referee, sufficient to enable the court to determine the considerations upon which the referee based his conclusions. Such report may be rejected for any irregular or improper conduct in the performance of the duties of such referee. If the report is rejected, the court or judge shall appoint another referee to make such review and report. If the report is accepted, such statement of compensation shall be conclusive upon such owner and the redevelopment agency. If no appeal to the appellate court is filed within the time allowed by law, or if one is filed and the proceedings have terminated in a final judgment finding the amount due the property owner, the clerk shall send a certified copy of the statement of compensation and of the judgment to the redevelopment agency, which shall, upon receipt thereof, pay such property owner the amount due him as compensation. The pendency of any such application for review shaljmot prevent or delay whatever action is proposed with regard to such property by the project area redevelopment plan.”

       Practice Book Form 404.2 provides as follows:
      “APPEAL AND APPLICATION FOR REVIEW OF STATEMENT OF COMPENSATION CONDEMNATION-OTHER THAN HIGHWAY
      “To the superior court in and for the judicial district of at to be held on (return date), comes (name and residence of appellant), applying for a review of the statement of compensation hereinafter referred to and complains and says:
      “1. On {date), {name of condemnor) filed with the clerk of this court a statement of compensation in regard to the taking of the premises hereinafter referred to.

        “2. The premises so taken are situated in the town of and are bounded and described as follows:

        (Insert description

      “3. The applicant is the owner of (or has a record interest in) the premises.
      “4. The applicant is aggrieved by the statement of compensation.
      “Wherefore the applicant applies to this court for a review of the statement of compensation.
      “Dated at (place and date)

      Applicant
      By -
      His Attorney
      ORDER OF NOTICE
      “To Any Proper Officer:
      “By authority of the state of Connecticut you are hereby commanded to cause notice of the foregoing appeal and application be given to (name of condemnor), by serving upon it in the manner prescribed for the service of civil process a true and attested copy of the foregoing appeal and application and of this order not less than twelve days before the return day of the application.
      “Hereof fail not, but of this order make due service and return.
      “Dated at (place and date)

      By the Court ( , J.)
      Assistant Clerk”

       The defendant’s application for review reads as follows:
      “On July 6, 1987, the Town of Killingly filed with the clerk of the Superior Court a Statement of Compensation for the taking of real property belonging to Ralph W. Wells, an aggrieved party, and the owner of said real estate.
      “Said Statement of Compensation in the sum of One Hundred Thousand ($100,000.00) Dollars is inadequate and the applicant asks this Court to appoint a State Referee to make a review thereof, in conformity with CGS 8-132.”

       General Statutes § 7-250 provides in pertinent part: “No assessment shall be made until after a public hearing before the water pollution control authority at which the owner of the property to be assessed shall have an opportunity to be heard concerning the proposed assessment. . . . Any person aggrieved by any assessment may appeal to the superior court for the judicial district wherein the property is located and shall bring any such appeal to a return day of said court not less than twelve nor more than thirty days after service thereof and such appeal shall be privileged in respect to its assignment for trial. Said court may appoint a state referee to appraise the benefits to such property and to make a report of his doings to the court. The judgment of said court, either confirming or altering such assessment, shall be final.”


author: Dupont, C. J.

text:
    Anthony Vessichio et al. v. Carl C. Hollenbeck et al.
    (6522)
    Dupont, C. J., O’Connell and Foti, Js.

      Argued December 15, 1988
    decision released May 30, 1989

      Barry J. Sinoway, for the appellants (named plaintiff et al.).

      Jason Dodge, for the intervening plaintiff Guida-Seibert Dairy.

      Michael P. Del Sole, for the appellees (defendants).
   Dupont, C. J.

The plaintiffs appeal from the trial court’s judgment granting the defendants’ motion for summary judgment. Specifically, the plaintiffs claim that the trial court erred (1) in concluding that General Statutes §§ 52-592 and 52-593 were inapplicable, thereby depriving the plaintiffs of their constitutional right to redress, and (2) in granting the defendants’ motion for summary judgment when the defendants failed to demonstrate the nonexistence of genuine issues of material fact.

The undisputed facts are as follows. In September, 1982, the plaintiffs brought an action against the town of Cheshire to collect money damages for injuries allegedly sustained on September 8,1980, on the premises of a school owned and operated by the defendant town. The plaintiffs brought this action against the town of Cheshire alone, alleging negligence in the first count and that a nuisance was created and maintained by the town in the second count.

On May 23, 1984, the defendant town filed a motion to strike both counts of the complaint for the reasons that the first count was inappropriate due to the town’s governmental immunity and that the second count failed to state a cause of action. The court granted the motion pursuant to Practice Book § 155 on June 13, 1984. On December 7,1984, the court rendered a judgment of dismissal for failure to prosecute with due diligence pursuant to § 251 of the Practice Book. The plaintiffs did not appeal from that judgment.

On January 10,1985, the plaintiffs filed a motion to open the judgment of dismissal. The trial court denied the motion on January 25,1985. On February 5,1985, the plaintiffs filed a motion to reargue, which was denied by the court on February 25, 1985. The plaintiffs did not appeal from the denials of these motions.

On June 13, 1985, the plaintiffs filed a second lawsuit. That action was brought against the named defendant, Carl Hollenbeck, and the town of Cheshire to collect money damages for the injuries the plaintiff allegedly sustained on September 8,1980. The lawsuit was in three counts. The first count alleged that the defendant Hollenbeck, a custodian at the school, was negligent. The second count, against the town of Cheshire, sought indemnification from the town for any judgment against the defendant Hollenbeck pursuant to General Statutes § 7-465, and the third count was brought against the town for the creation and maintenance of a nuisance.

On November 25,1985, the defendants filed a motion to strike all three counts. On July 14, 1986, the court denied the motion as to the first two counts and granted it as to the third count. The plaintiffs filed a substitute complaint on July 28,1986, that included only the first two counts of the original complaint. On October 21, 1987, the court, J. Flanagan, J., granted the defendants’ motion for summary judgment.

The plaintiffs’ first claim is that the trial court erred in concluding that General Statutes §§ 52-592 and 52-593 were inapplicable to save the plaintiffs’ action against the defendants. The plaintiff’s alleged injury occurred on September 8, 1980. The plaintiffs first filed suit against the named defendant Hollenbeck on June 13, 1985, alleging that Hollenbeck’s negligence caused the injury. General Statutes § 52-584 provides in pertinent part: “No action to recover damages for injury to the person . . . caused by negligence . . . shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of . . . .” Neither the plaintiffs nor the defendants contend that the suit against the named defendant Hollenbeck was not time barred by § 52-584. Rather, the plaintiffs claim that the action against Hollenbeck is saved by the provisions of General Statutes § 52-592 which provides in pertinent part: “If any action commenced within the time limited by law has failed one or more times to be tried on its merits because of . . . any matter of form . . . the plaintiff . . . may commence a new action ... for the same cause at any time within one year after the determination of the original action . . . (Emphasis added.) Section 52-584 makes it evident that the action against the named defendant Carl Hollenbeck was not brought “within the time limited by law.” Because the plaintiffs must satisfy all of the criteria in § 52-592 in order to prevail; Isaac v. Mount Sinai Hospital, 210 Conn. 721, 728-29, 557 A.2d 116 (1989); the trial court did not err in concluding, as a matter of law, that the plaintiffs’ action against the named defendant Hollen-beck was not saved by § 52-592. Moreover, as the defendant town’s liability is, as asserted in the plaintiffs’ substitute complaint, premised solely upon the indemnification provisions of § 7-465, the court did not err in concluding that the plaintiffs’ claim against the town also must fail.

The plaintiffs’ next claim is that the trial court erred in concluding that General Statutes § 52-593 was inapplicable to save the plaintiffs’ action against the defendants. General Statutes § 52-593 provides in pertinent part: “When a plaintiff in any civil action has failed to obtain judgment by reason of failure to name the right party as defendant therein, the plaintiff may bring a new action and the statute of limitations shall not be a bar thereto . . . .” Our Supreme Court has clearly indicated that the prior “judgment” upon which a § 52-593 action is founded must have been for failure to name the right defendant. Perzanowski v. New Britain, 183 Conn. 504, 507, 440 A.2d 763 (1981). In the present case, the prior action was dismissed for failure to prosecute with due diligence; Practice Book § 251; and not for failure to name the right party. Accordingly, the trial court did not err in concluding that § 52-593 was inapplicable to the plaintiffs’ action.

The plaintiffs’ next claim is that the trial court’s rendering of summary judgment for the defendants premised on the inapplicability of General Statutes §§ 52-592 and 52-593 violates the plaintiffs’ right to redress guaranteed by article first, § 10, of the Connecticut constitution. We disagree. The plaintiff has not been deprived of an opportunity to bring an action. The opportunity was there, but was limited by time. It is within the legislature’s authority to determine how quickly actions for claims of injury must be brought. Burns v. Hartford Hospital, 192 Conn. 451, 460, 472 A.2d 1257 (1984).

The plaintiffs’ last claim is that the trial court erred in granting the defendants’ motion for summary judgment when the defendants offered insufficient proof to support their motion. See Practice Book § 380. This claim is without merit. The plaintiffs did not attack the defendants' sufficiency of proof in their memorandum of law opposing the motion for summary judgment and, on appeal, do not allege a single material fact that they claim is in dispute. The trial court was correct in rendering summary judgment for the defendants because no genuine issue of material fact existed and the defendants were entitled to judgment as a matter of law. Telesco v. Telesco, 187 Conn. 715, 718, 447 A.2d 752 (1982).

There is no error.

In this opinion the other judges concurred.

       The plaintiffs are husband and wife. The wife’s claim is a derivative one for loss of consortium.

       General Statutes § 7-465 provides in pertinent part: “(a) Any town, city or borough, notwithstanding any inconsistent provision of law, general, special or local, shall pay on behalf of any employee of such municipality ... all sums which such employee becomes obligated to pay by reason of the liability imposed upon such employee by law for damages awarded ... for physical damages to person . . . .”

       Practice Book § 251 provides in pertinent part: “If a party shall fail to prosecute an action with reasonable diligence, the court may, after hearing, on motion by any party to the action pursuant to Sec. 196, or on its own motion, render a judgment dismissing the action .with costs.”

       The Connecticut constitution article first, § 10 provides: “All courts shall be open, and every person, for an injury done to him in his person, property or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay.”


text:
    Jerry M. Tinagero et al. v. Lawrence J. Phillips, Jr., et al.
    (7112)
    Borden, Daly and Jacobson, Js.

      Argued March 1
    decision released May 30, 1989

      Donald R. Beebe, with whom was David J. O’Dea, for the appellants (defendants).

      Richard J. Duda, for the appellees (plaintiffs).
   Daly, J.

This is an appeal by the defendants from the judgment rendered against them in a quiet title action. They claim on appeal that the trial court erred in accepting the report of the attorney trial referee where there was insufficient evidence to .support his factual findings. We find error.

The plaintiffs, Jerry M. and Diantha Tinagero, instituted this action to quiet title to the portion of their property bounded on the east by the defendants’ property. The dispute concerns the proper location of the common boundary line between the two parcels.

The property of the plaintiffs and defendants is located on the northerly side of Stone Hill Road in the town of Griswold and was, prior to 1979, part of one parcel owned by Lawrence J. Phillips, Sr. By way of a quit claim deed dated January 29,1979, Phillips, Sr., conveyed the eastern portion of the land to the defendants and retained title to the remaining, western portion. Virginia Phillips, the successor in title of the retained parcel, conveyed the property to the plaintiffs by way of a warranty deed dated February 16, 1984. The plaintiffs had their property surveyed in 1985 and, in January, 1986, commenced the quiet title action in order to determine the common boundary line between their property and that of the defendants.

The matter was tried before an attorney trial referee. The plaintiffs presented the testimony of Roland J. Harris, who had prepared a survey of the premises. Harris’ survey, dated April 15, 1985, placed the common boundary line through the defendants’ house. Harris testified that he had prepared his survey based upon the legal description of the premises contained in the 1979 quit claim deed from Phillips, Sr., to the defendants; he admitted, however, that he was unable to locate any of the monuments mentioned in the description.

The defendants also presented the testimony of a land surveyor, John Kopko, who had prepared a survey of the premises. He testified that in preparing his survey he had relied on existing maps and deeds, as well as on the location of the monuments set forth in the legal description of the land. Kopko determined that the defendants’ house and driveway were in existence in 1979 when the deed creating the common boundary was executed. He concluded that the boundary line ran to the west of the defendants’ house.

The trial was concluded on January 15,1987, and the attorney trial referee filed the report containing his findings of fact and conclusion on November 17,1987. In recommending that judgment be rendered in favor of the plaintiffs, the trial referee adopted the survey prepared by Harris as one of the facts found. The defendants thereafter filed a motion to correct; Practice Book § 438; an exception to the trial referee’s findings; Practice Book § 439; and an objection to the trial court’s acceptance of the report. Practice Book § 440. Those motions were denied and the trial court rendered judgment for the plaintiffs on May 18,1988. It is from that judgment that the defendants appeal.

The defendants essentially claim that the trial court erred in accepting the attorney trial referee's report because the referee had ignored the survey prepared by Kopko, which was the more reliable survey because it established the boundary line according to the monuments referred to in the description of the land as set out in the deed. The defendants assert that Kopko’s survey should control the location of the boundary line.

The location of the boundary line presents a question of fact for the trier to decide. Our function as an Appellate Court is to review, not to retry. When we determine, however, that the trial court’s factual findings are clearly erroneous in view of the evidence and pleadings in the whole record, Practice Book § 4061 empowers this court to reverse or modify the trial court’s decision.

In our limited scope of review regarding a factual finding, “we do not examine the record to determine whether the judge or the trier of fact could have made a finding other than the one made. Instead, we first determine whether there is evidence to support the finding. If not, the finding is clearly erroneous. Even if there is evidence to support it, however, a finding is clearly erroneous if ‘in view of the evidence and pleadings in the whole record [this court] is left with the definite and firm conviction that a mistake has been committed Doyle v. Kulesza, 197 Conn. 101, 105, 495 A.2d 1074 (1985).” Buddenhagen v. Luque, 10 Conn. App. 41, 45, 521 A.2d 221 (1987).

Upon our review of the record, we are convinced that a mistake in the factual findings has been committed. First, it was unrefuted that the defendants’ house existed on the original, undivided property prior to the creation of the two parcels. Several witnesses, including a bank appraiser who had inspected the property in 1978, confirmed this. Second, Harris never made any inquiries to establish whether the defendants’ house was in existence at the time of 1979 conveyance by Phillips, Sr., to the defendants. Moreover, Harris testified that if the house was in existence, he then would have to redraw the boundary line, because the house would be considered a monument. Finally, Kopko’s survey was based on, among other things, the monuments referred to in the legal description of the premises while Harris’ was not. It is a well settled rule that in cases of contradictory or uncertain property descriptions, known and fixed monuments control over courses and distances. Russo v. Corideo, 102 Conn. 663, 672, 129 A.2d 849 (1925). Accordingly, we conclude that the findings of fact made by the attorney trial referee and adopted by the court as to the location of the common boundary line are clearly erroneous.

There is error, the judgment is set aside and the case is remanded for a new trial.

In this opinion the other judges concurred.

       The defendants remaining in this appeal are Lawrence J. Phillips, Jr., and Joann Phillips, the owners of the property. Accordingly, the term “defendants” as used in this opinion refers only to those defendants.


author: Stoughton, J.

text:
    Mac’s Car City, Inc. v. Nicholas E. DeNigris et al.
    (6996)
    Dupont, C. J., Stoughton and Norcott, Js.

      Argued March 9
    decision released May 30, 1989

      Alexandra Davis, for the appellant (plaintiff).

      Joseph F. Shelley, Jr., with whom, on the brief, was Alan Wein, for the appellees (defendant).
   Stoughton, J.

The plaintiff appeals the trial court’s granting of summary judgment in favor of the defendants. The plaintiff contends that the trial court improperly rendered summary judgment on a ground not raised in the pleadings.

On November 7,1986, the plaintiff brought an action against the named defendant, an attorney, and his law firm. In its first count, the plaintiff alleged, inter alia, that on or about July 28,1980, the American National Bank brought suit against it for the amount due on a promissory note. It was alleged that between July 28, 1980, and August 5, 1980, the plaintiff’s president, John McCall, had met with the named defendant and had retained the defendants to represent Mac’s Car City, Inc., in the law suit, and that the defendants had agreed to do so. On or about August 6,1980, the defendant law firm entered an appearance on behalf of the plaintiff in the suit brought by American Savings Bank. The plaintiff alleged that the defendants failed to defend the bank’s lawsuit and that on October 14,1980, a default for failure to plead was entered against the plaintiff. The plaintiff alleged that the named defendant failed to take any action to open the default, that on December 1,1980, the trial court rendered judgment in favor of American Savings Bank in the total amount of $22,765.75, and that the named defendant failed to take any action to open or set aside the judgment. Paragraphs nineteen and twenty of the first count of the complaint read as follows:

“19. The defendants breached their representation agreement with the plaintiff in that they did not defend the suit brought by American Savings Bank, they did not seek to obtain the release of the attachment on the plaintiff’s property, and they did not timely seek to recover the plaintiff’s losses from American Savings Bank.
“20. As a result of the defendants’ breach of agreement, the plaintiff suffered the losses set forth in paragraph 15 above and is no longer able to recover these losses from American Savings Bank as well as treble damages in accordance with C.G.S. § 52-568.”

The defendants’ amended answer denied paragraphs nineteen and twenty, and, by way of special defenses, alleged that they were retained for a limited purpose, and that the first count was barred by General Statutes § 52-581.

On April 7,1988, the trial court granted the defendants’ motion for summary judgment. The trial court stated: “In this case, the plaintiff’s claim is based upon the alleged breach of a professional standard of care, not the breach of a contract. Unequivocally, the plaintiff’s cause of action, if any, accrued on December 1, 1980; therefore, the plaintiff’s claim is barred by the applicable statute of limitations, General Statutes (Rev. to 1987) § 52-577. Accordingly, defendants’ motion for summary judgment is granted.”

The plaintiff claims that the trial court erred in applying General Statutes § 52-577 to bar the cause of action alleged in its complaint. The defendants have presented, as an alternate ground upon which the judgment may be affirmed, the claim that the cause of action is barred by General Statutes § 52-581, as alleged in their special defense.

I

A statute of limitations defense must be specially pleaded. Practice Book § 164. General Statutes § 52-577 is a procedural statute and is waived if not pleaded. Orticelli v. Powers, 197 Conn. 9, 15-16, 495 A.2d 1023 (1985); L.G. DeFelice & Son, Inc. v. Wethers-field, 167 Conn. 509, 513, 356 A.2d 144 (1975). “In deciding a motion for summary judgment, the trial court is limited to considering the pleadings, affidavits, and other documentary proof submitted by the parties.” Orticelli v. Powers, supra, 15. Since the defendants did not plead General Statutes § 52-577 as a defense to the first count of the complaint, it was error for a trial court to raise it sua sponte to bar the first count of the complaint. See id., 16-17.

II

Summary judgment is appropriate “if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Practice Book § 384; Yanow v. Teal Industries, Inc. 178 Conn. 262, 268, 422 A.2d 311 (1979). Interpretation of the pleadings is a question of law. Cahill v. Board of Education, 198 Conn. 229, 236, 502 A.2d 410 (1985); Sauerwein v. Bell, 17 Conn. App. 697, 702, 556 A.2d 613 (1989).

Although the complaint does not expressly use the word “contract,” a fair and reasonable construction of the phrase “the defendants breached their representation agreement” clearly states a claim in contract. See Fuessenich v. DiNardo, 195 Conn. 144, 150-51, 487 A.2d 514 (1985).

The trial court stated the issue in the case to be whether a plaintiff in a legal malpractice action could rely on an alleged breach of contract in order to extend the statute of limitations. It further stated that the question to be decided was “whether the breach of contract claim is viable.”

The trial court based its decision to render summary judgment on the premise that, under our decision in Shuster v. Buckley, 5 Conn. App. 473, 500 A.2d 240 (1985), a claim against an attorney, even though couched in the language of contract, is actually a claim of malpractice and therefore controlled by the three year statute of limitations for actions founded upon tort. That case, however, does not stand for the proposition that all claims against attorneys must necessarily be construed as tort claims. In Shuster v. Buckley, supra, 478, we found that the tort statute of limitations applied because the complaint in question was couched in the language of tort rather than contract. Our Supreme Court has recognized an action in contract against an attorney. See Stowe v. Smith, 184 Conn. 194, 198-99, 141 A.2d 81 (1981); see also Robbins v. McGuinness, 178 Conn. 258, 261-62, 423 A.2d 897 (1979).

A physician may be subject to a claim for breach of contract arising from an agreement to perform professional services; see Bria v. St. Joseph’s Hospital, 153 Conn. 626, 220 A.2d 29 (1966); and there seems to be no reason for treating claims against attorneys differently. It was error to apply the tort statute of limitations to the plaintiffs claim in contract. “Where two distinct causes of action arise from the same wrong, each is controlled by the statute of limitations appropriate to it.” Perzanowski v. New Britain, 183 Conn. 504, 506, 440 A.2d 763 (1981).

Ill

The defendants have presented as an alternative ground for affirming the judgment their claim that the cause of action alleged in the first count of the complaint is barred by General Statutes § 52-581.

It cannot be determined from the record whether the plaintiff had fully performed his obligation under the contract or whether this was an executory contract. See Tierney v. American Urban Corporation, 170 Conn. 243, 248-49, 365 A.2d 1153 (1976)- Therefore, summary judgment based upon General Statutes § 52-581 is inappropriate because there is a genuine issue as to whether this statute is applicable. This question must be resolved by further proceedings. See Esposito v. Wethered, 4 Conn. App. 641, 644, 496 A.2d 222 (1985).

There is error, the judgment is set aside and the case is remanded for further proceedings in accordance with this opinion.

In this opinion the other judges concurred.

       The plaintiff’s complaint was brought in two counts. The plaintiff conceded that its second count, which alleged a cause of action based upon negligence, was barred by General Statutes § 52-577. This claim, therefore, is not at issue on this appeal.

       General Statutes § 52-581 provides in pertinent part: “action ON oral CONTRACT TO BE BROUGHT WITHIN THREE YEARS, (a) No action founded upon any express contract or agreement which is not reduced to writing, or of which some note or memorandum is not made in writing and signed by the party to be charged therewith or his agent, shall be brought but within three years after the right of action accrues.”