author: Spallone, J.

text:
    In re Juvenile Appeal (85-1)

    (2572)
    Dupont, C.P.J., Sfallone and Daly, Js.
    Argued November 14, 1984
    decision released January 15, 1985

      Robert J. Nichols, for the appellants (parents of the minor child).

      Judith M. Earl, assistant attorney general, with whom, on the brief, was Joseph I. Lieberman, attorney general, for the appellee (commissioner of children and youth services).

      William F. Hickey III, for the minor child.

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

   Spallone, J.

This appeal is from the trial court’s dismissal of a petition to revoke the commitment of a child to the department of children and youth services (hereinafter DCYS).

The child in question, A, was born on August 9,1981. At that time, the child’s father resided with but was not married to the child’s mother. The father was an alcoholic and, although there was no evidence that he ever abused A, his drinking led to occasional episodes of domestic violence. In January, 1982, the father moved out of the house leaving the mother to raise and support A and A’s older sister.

The mother’s subsequent inability to provide for A’s needs led to the child’s loss of weight and eventual hospitalization. The hospital reported A’s failure to thrive to the DCYS, and the DCYS petitioned, on February 19, 1982, for custody of the child pursuant to General Statutes § 46b-120. On June 1, 1982, by agreement of the parties, the court found A to be uncared for and placed him in the custody of the DCYS, which in turn placed him in foster care. On February 16,1983, the father filed a petition for revocation of commitment pursuant to General Statutes § 46b-129 (g). In the petition, he sought return of custody of the child alleging that he could provide “a good and stable home” for the child and that he no longer had any substance abuse problems.

After the petitioner rested his case, the DCYS moved for a judgment of dismissal for failure to make out a prima facie case pursuant to Practice Book § 302. The trial court granted the motion and dismissed the petition. The central issue on appeal is whether the trial court’s dismissal of the petition was erroneous because it incorrectly placed the entire burden of proof in this proceeding on the petitioner.

On a petition to revoke commitment, once the petitioner has submitted sufficient evidence to show that cause for commitment no longer exists, the burden shifts to the state to prove that it would not be in the best interests of the child to be returned to his or her natural parent. In re Juvenile Appeal (Anonymous), 177 Conn. 648, 659, 420 A.2d 875 (1979). The petitioner does not, as the court stated, bear a two-fold burden of proving, first, that cause for commitment no longer exists and, second, that returning the child to the custody of the natural parents would be in the child’s best interests.

Whether the petitioner made out a prima facie case, presented a question of law for the court. Falker v. Samperi, 190 Conn. 412, 419, 461 A.2d 681 (1983). “The test is whether plaintiff’s evidence is sufficient, in point of law, to make out a prima facie case in his favor.” Ace-High Dresses, Inc. v. J.C. Trucking Co., 122 Conn. 578, 580, 191 A. 536 (1937). Although the court misstated the petitioner’s burden of proof, the record before us on appeal is insufficient for us to reverse on that ground.

In ruling on the motion by DCYS for judgment of dismissal for failure to make out a prima facie case, the court stated “the petitioners . . . have not established all the prerequisites necessary in order to grant the petition at this point.” We cannot, by speculation, determine what the court meant by that statement. The court might have meant that the petitioner had failed to prove that cause for commitment no longer existed, and, therefore, that proof of the second element was not required. Or, it might have meant that the petitioner had made out a prima facie case as to the first prong of the test but, because of the court’s misreading of the law, had not made out a prima facie case as to the second.

The court’s ambiguous expression of its decision on the motion for judgment of dismissal provides us with no firm basis on which to determine whether the trial court abused its discretion in granting that motion. Where the basis of the court’s decision is unclear, proper utilization of the motion for articulation serves to dispel any ambiguity by clarifying the factual and legal basis upon which the court rendered its decision. Barnes v. Barnes, 190 Conn. 491, 494, 460 A.2d 1302 (1983). The petitioner could have requested such clarification by moving for articulation pursuant to Practice Book § 3082, but he did not. Under these circumstances, we have no basis on which to find error. Urban v. Leggio, 1 Conn. App. 226, 228, 470 A.2d 1226 (1984).

There is no error.

In this opinion the other judges concurred.

       This appeal was originally filed in the Appellate Session of the Superior Court. General Statutes § 51-197a (c).

       The DCYS never took any action to seek custody of A’s sister.

       Although the petition was filed by the father, this appeal was filed jointly by the father and the mother, and pursued only by the mother. While the mother was never formally made a party to the proceedings, she was represented by counsel at trial and fully participated in all aspects of the hearing. The court specifically extended its decision on the motion for judgment of dismissal to the mother: “I suppose we treat [the petition] as a petition of both parents because the natural parents have intermarried now and although the petition is in the name of Mr. G., Mrs. G. joins in it . . . .” The mother is clearly a “[l]egal party at interest” in this matter who is entitled to proper legal notice as a condition precedent to the establishment of the court’s jurisdiction. Practice Book § 1023 (1). Pursuant to General Statutes § 46b-142 (b), which authorizes appeals in juvenile matters by “any party at interest aggrieved by any final judgment,” the mother has standing to bring this appeal. Cf. In re Juvenile Appeal (Anonymous), 181 Conn. 292, 435 A.2d 345 (1980).

       In ruling on a Practice Book § 302 motion, the court is bound to accept as true the evidence of the plaintiff and draw all reasonable inferences therefrom in favor of the plaintiff. Berchtold v. Maggi, 191 Conn. 266, 271, 464 A.2d 1 (1983). In view of the mother’s testimony at the trial, to wit, that she never had any difficulties caring for the child and that she would care for the child exactly as she had in the past, there is little doubt that the court’s granting of the motion finds ample support in the evidence.


source: Caselaw Access Project

author: Borden, J.

license: Public Domain

text:
    Ruth Timothy, Executrix (Estate of Roy Timothy) v. The Upjohn Company et al.
    (2098)
    Hull, Borden and Spallone, Js.
    Argued November 14, 1984
    decision released January 15, 1985

      Peter A. Kelly, for the appellant (plaintiff).

      Kevin J. Maher, James L. Pomeranz and Thomas H. Cotter, for the appellees (defendants).
   Borden, J.

The plaintiff in this workers’ compensation case appeals from a decision of the compensation review division reversing an order of the workers’ compensation commissioner. Because we hold that the decision of the review division is not a final judgment, we dismiss this appeal sua sponte.

The plaintiffs husband, an employee of the defendant Upjohn Company, died of lung cancer. The plaintiffs counsel sent a letter to Upjohn claiming that the decedent’s death was attributable to his employment and claiming survivor’s benefits under the Workers’ Compensation Act. Upjohn filed a disclaimer of liability. The plaintiff filed a motion to preclude Upjohn from contesting liability on the ground that Upjohn had not filed its disclaimer within twenty days of receipt of the notice of claim, as required by General Statutes § 31-297 (b). See Bush v. Quality Bakers of America, 2 Conn. App. 363, 479 A.2d 820, cert. denied, 194 Conn. 804, 482 A.2d 709 (1984). The commissioner granted the motion. Upjohn and its insurers, who are the other defendants in this case, appealed to the review division, which ruled that, because the plaintiff’s notice of claim was neither personally served nor mailed by registered or certified mail, as required by General Statutes § 31-321, the preclusion mechanism of General Statutes § 31-297 (b) was not triggered. The review division, noting that the plaintiff is still free to pursue the claim and to establish liability by traditional methods of proof, reversed the commissioner’s decision and remanded the case to her for further proceedings. The plaintiff appealed from that decision of the review division.

Appeals to this court from decisions of the review division are taken pursuant to General Statutes § 31-301b. Practice Book § 2015 provides that “[tjhe practice and procedure for workers’ compensation appeals to the appellate court shall conform to the rules of practice governing other appeals to the appellate court . . . .” Practice Book § 2021 provides that, with regard to such appeals, “references in the appellate rules to trial court or trial judge shall, where applicable, be deemed to mean the individuals who comprised the panel of the compensation review division which rendered the decision from which the appeal was taken.”

The practice and procedure of this court require that, “[i]f a party is aggrieved by the decision of the court or judge . . . he may appeal from the final judgment of the court or of such judge . . . .” Practice Book § 3000. It is clear, therefore, that in order for a decision of the review division to be appealable under General Statutes § 31-30 lb it must be a decision which has the same elements of finality as a final judgment rendered by a trial court.

“An order is final and appealable ‘(1) where the order or action terminates a separate and distinct proceeding, or (2) where the order or action so concludes the rights of the parties that further proceedings cannot affect them.’ State v. Curcio, [191 Conn. 27, 31, 463 A.2d 566 (1983)].” Barbato v. J. & M. Corporation, 194 Conn. 245, 248, 478 A.2d 1020 (1984); In re Juvenile Appeal (84-2), 1 Conn. App. 378, 382, 472 A.2d 795 (1984).

This decision of the review division is not such a final order. It did not terminate any separate or distinct proceeding. It simply reversed the ruling of the commissioner on the plaintiff’s motion to preclude, all of which took place within the ambit of the proceedings on the plaintiff’s claim against the defendants. Nor did it so conclude the rights of the plaintiffs that further proceedings cannot affect them. By its very terms, it remanded the case to the commissioner for further proceedings on the plaintiffs claim, albeit without the benefit of precluding the defendants from contesting liability.

“For an interlocutory order to be an appealable final judgment it must threaten the preservation of a right that the defendant already holds. The right itself must exist independently of the order from which the appeal is taken. Where a decision has the effect of not granting a particular right, that decision, even if erroneous, does not threaten the [party’s] already existing rights.” (Footnote omitted.) State v. Longo, 192 Conn. 85, 92-93, 469 A.2d 1220 (1984). Here, the review division’s order had the effect of not granting the plaintiff her asserted right to establish her claim without the necessity of actually proving the necessary factual links between her husband’s death and his employment. It is analogous to the denial, in a traditional civil case, of a motion for default, which is not a final judgment for purposes of appeal. See Thomas v. Commerford, 168 Conn. 64, 72, 357 A.2d 476 (1975).

We distinguish this case from Bush v. Quality Bakers of America, supra, in which the employer and its insurer appealed from the decision of the review division, which sustained the decision of the commissioner precluding them from contesting liability. In that case, the effect of the decision appealed from did conclude the defendants’ rights so that further proceedings could not affect them. All that was left was the purely mathematical calculation of the survivor’s benefits under General Statutes § 31-306.

The appeal is dismissed sua sponte.

In this opinion the other judges concurred.

       The appeal was originally filed in the Appellate Session of the Superior Court. General Statutes § 51-197a (c).

       General Statutes § 31-301b, as amended by Public Acts, Spec. Sess., June, 1983, No. 83-29, § 15, provides: “Any party aggrieved by the decision of the compensation revision division upon any question or questions of law arising in the proceedings may appeal the decision of the compensation review division to the appellate court.”

       Practice Book § 3000 governs appeals to the Supreme Court. Practice Book § 2000 provides that, except where otherwise specified, “[t]he practice and procedure for appeals to the appellate court shall conform to the rules of practice governing appeals to the supreme court . . . .”

       Unlike the denial of a motion for default, however, which is a purely discretionary act not assignable as error even after a final judgment; Thomas v. Commerford, 168 Conn. 64, 72, 357 A.2d 476 (1975); the denial of a motion for preclusion under General Statutes § 31-297 (b) calls for a legal conclusion which will be reviewable after a final judgment.


author: Hull, J.

text:
    State of Connecticut v. Wilfredo Narvaez
    (2119)
    Hull, Spallone and Daly, Js.
    Argued November 14, 1984
    decision released January 15, 1985

      Richard R. Brown, for the appellant (defendant).

      William Domnarski, deputy assistant state’s attorney, with whom, on the brief, were JohnM. Massameno and Robert Meyers, assistant state’s attorneys, for the appellee (state).
   Hull, J.

This case raises the sole issue of whether reckless endangerment in the first degree is a lesser included offense of attempt to commit assault in the first degree. Since the defendant did not object to the court’s charge to this effect and because we find that he did not satisfy the second exceptional circumstance requirement of State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973), we find no error.

The state charged that the defendant shot at a pursuing policeman. He was charged by information with attempted assault in the first degree. The case was tried to a jury and, at the conclusion of the evidence, both the state and defense counsel filed requests to charge on lesser included offenses. The defendant requested a charge on the crime of reckless endangerment in the second degree, and the state requested a charge on the crime of reckless endangerment in the first degree. The court charged the jury on attempted assault in the first degree and on both requested charges as lesser included offenses. The jury returned a verdict of not guilty as to attempt to commit assault in the first degree and a verdict of guilty as to reckless endangerment in the first degree.

The defendant filed motions in arrest of judgment and for judgment of acquittal. After a hearing, the court denied both motions and the defendant appeals from the judgment on the conviction. It is noted that the defendant’s brief does not comply with Practice Book § 3060F in that it lacks a statement of the issues.

The state argues that the defendant’s claim should not be heard on appeal since the defendant failed to object to the court’s charge on reckless endangerment in the first degree. The state claims that the defendant’s own request to charge on reckless endangerment in the second degree constitutes a waiver of right to complain of either the correctness of the charge or lack of notice, since the culpable state of mind for reckless endangerment in the first and second degrees is identical.

The state points out that the defendant briefed neither a plain error argument nor an argument under State v. Evans, supra. Thus, the state argues, since the record fails to support a claim of deprivation of a fundamental constitutional right and a fair trial, the defendant’s claim should not be reviewed under the second prong of the exceptional circumstance doctrine of State v. Evans, supra.

“This court need not consider claims not distinctly raised at trial and not arising subsequent thereto. E.g., Practice Book § 3063; State v. Delafose, 185 Conn. 517, 520, 441 A.2d 158 (1981); State v. Evans, 165 Conn. 61, 67, 327 A.2d 576 (1973). Such claims of error are considered waived. State v. Evans, supra, 66. Only in the most exceptional circumstances will this court consider even a constitutional claim not properly raised and decided in the trial court. Practice Book § 3063; State v. Gooch, 186 Conn. 17, 18, 438 A.2d 867 (1982); State v. Packard, [184 Conn. 258, 271, 439 A.2d 983 (1981)]; State v. Evans, supra, 69; cf. Hormel v. Helvering, 312 U.S. 552, 557, 61 S. Ct. 719, 85 L. Ed. 1037 (1941); Frommhagen v. Klein, 456 F.2d 1391, 1395 (9th Cir. 1972). ‘Contrary to the impression which seems to prevail in some quarters, it is not true that defense counsel in criminal cases may through neglect, inattention or as a trial strategy refrain from making proper objection or raising in the trial court any available constitutional defenses, confident that if the outcome of the trial proves unsatisfactory without making objections and taking exceptions and raising any available constitutional issue they may still prevail by assigning error or raising the constitutional issue for the first time on the appeal.’ State v. Evans, supra, 67; see State v. Williams, 173 Conn. 545, 560, 378 A.2d 588 (1977). Exceptional circumstances are presented only when (1) a new constitutional right not readily foreseeable arises between the time of trial and of appeal; or (2) the record is sufficiently complete to support a claim that the defendant was denied a fundamental constitutional right and a fair trial. State v. Evans, supra, 70; see, e.g., State v. Gunning, 183 Conn. 299, 302-303, 439 A.2d 339 (1981); State v. Trent, 182 Conn. 595, 598, 438 A.2d 796 (1981); State v. Williams, 181 Conn. 262, 267, 438 A.2d 80 (1980). The defendant asserts that each of his claims of error in the jury instructions presents exceptional circumstances under the second of the Evans tests. Accordingly, to determine whether we will reach the merits of each claim, we will examine whether it poses a question of fundamental constitutional dimension. State v. Gooch, supra, 18.” State v. Miller, 186 Conn. 654, 658-59, 443 A.2d 906 (1982).

In State v. Nardini, 187 Conn. 513, 517, 447 A.2d 396 (1982), the Supreme Court referred to the “Evans by-pass” as being “narrow.” “The rule that requires that such claims be raised at the trial is a salutary one. Although it is subject to certain sharply delineated constitutional exceptions; State v. Evans, supra; and has been applied with some flexibility in capital cases; State v. Reid, 146 Conn. 227, 230-31, 149 A.2d 698 (1959); the fact that the rule is not adhered to in a limited number of situations ‘does not permit a defendant in a criminal case to fail, whether from a mistake of law, inattention or design, to object to matters occurring during a trial until it is too late for them to be corrected or even considered and then, if the outcome proves unsatisfactory, to raise them for the first time on an appeal. Under such a procedure (1) claims of error would be predicated on matters never called to the attention of the trial court and upon which it necessarily could have made no ruling in the true sense of the word; and (2) the appellee, here the state, would be lured into a course of conduct at the trial which it might have altered if it had any inkling that the accused would, in the event of a conviction, claim that such a course of conduct involved rulings which were erroneous and prejudicial to him.’ State v. Taylor, 153 Conn. 72, 86-87, 214 A.2d 362 (1965).” State v. Kurvin, 186 Conn. 555, 564, 442 A.2d 1327 (1982). “The Evans rule is designed to protect fundamental constitutional rights. It deals with substance, not labels. Putting a constitutional tag on a nonconstitutional claim will no more change its essential character than calling a bull a cow will change its gender. If a word to the wise will do it, then suffice it to observe that the Evans trial court bypass to this court is a narrow constitutional path and not the appellate Champs-Elysees.” State v. Gooch, supra.

The Evans bypass is not meant to have talismanic effect on appellate courts. In this case, the defendant requested a charge on reckless endangerment in the second degree and the court, at the state’s request, also charged the jury on reckless endangerment in the first degree. Both of these crimes require substantially the same mental state. Although reckless endangerment in the first degree requires that the defendant also act with “extreme indifference to human life” (see footnote 1, supra), we conclude that the defendant’s claim of error concerning the court’s charge on reckless endangerment in the first degree as a lesser included offense of attempted assault in the first degree does not rise to the level of constitutional error necessary to trigger this court’s consideration of the issue under the Evans bypass.

This conclusion is in accord with the Supreme Court’s recent decision in State v. Jacobowitz, 194 Conn. 408, 480 A.2d 557 (1984). There, the court stated that it “does not recognize the right to have a jury charged on lesser included offenses to be one of constitutional dimension: ‘There is no fundamental constitutional right to a jury instruction on every lesser included offense suggested by the evidence or by the information, indictment and bill of particulars.’ State v. Whistnant, [179 Conn. 576, 583, 427 A.2d 414 (1980)].” State v. Jacobowitz, supra, 413.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 53a-63 provides in part that “[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 § 53a-49 provides in pertinent part: “(a) A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime he: (1) Intentionally engages in conduct which would constitute the crime if attendant circumstances were as he believes them to be; or (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.”

       General Statutes § 53a-59 (a) provides in pertinent part that “[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 a dangerous instrument . . . .”

       General Statutes § 53a-64 (a) provides that “[a] person is guilty of reckless endangerment in the second degree when he recklessly engages in conduct which creates a risk of physical injury to another person.”

       For purposes of this opinion, the defendant’s motion for judgment of acquittal will be treated as a motion to set aside the verdict. The state refers to the defendant’s “motion to set aside” throughout its brief, and the defendant asks this court to set aside the verdict below.

       This appeal was originally filed in the Appellate Session of the Superior Court. General Statutes § 51-197a (c).


author: Per Curiam.

text:
    James B. Brennan v. Susan Booth
    (2216)
    Borden, Spallone and Daly, Js.
    Argued December 5, 1984
    decision released January 22, 1985

      Barry Ward, for the appellant (defendant).

      James B. Brennan, pro se, filed a brief.
   Per Curiam.

The trial court erred in denying the defendant’s motion to open and set aside the default judgment. Upon the denial of her request to revise, the defendant was entitled to fifteen days within which to plead. See Practice Book §§ 112 and 114.

There is error, the default judgment is set aside and the case is remanded with direction to be proceeded with according to law.


text:
    Hyman Goldfeld v. Planning and Zoning Commission of the Town of Greenwich et al.
    (2423)
    (2424)
    Dupont, C.P.J., Borden and Daly, Js.

      Argued November 16, 1984
    decision released January 22, 1985

      James W. Macauley, assistant town attorney, for the appellant (named defendant).

      Robert M. Davidson, for the appellants (intervening defendants).

      David Albert, with whom, on the brief, were David Kotkin, Mark S. Shipman, Samuel J. Henderson and Leonard M. Bieringer, for the appellee (plaintiff).
   Borden, J.

This is an appeal from the judgment of the trial court sustaining the plaintiffs appeal from the decision of the defendant planning and zoning commission of the town of Greenwich. The plaintiff had applied to the commission to change the zone of certain property located in the town. The commission denied the application. The trial court, in sustaining the plaintiffs appeal, changed the zone of the property as requested in the plaintiff’s application. The defendants appeal. We find error.

The defendants argue that the trial court erred in finding that the plaintiff was aggrieved by the decision of the commission. We agree.

Under a contract dated December 9,1975, the plaintiff was the purchaser of approximately 102 acres of property located in an RA-4 zone, with frontage of approximately 450 feet on the west side of King Street and adjoining the Westchester, New York, County airport. The contract was subject to a condition that the 102 acres be rezoned to BEX-50 classification. In the event of an appeal from the decision of the commission, the closing date under the contract was to be extended until a final, nonappealable judicial decision on that appeal.

On September 29, 1977, the plaintiff applied to the commission for a change of zone from RA-4 to BEX-50 on the 102 acres, plus all property located between the west side of King Street and the New York state line, to the south of Interstate 684 and to the north of Lincoln Avenue. The entire property sought to be rezoned, including the 102 acres, consists of approximately 215 acres with frontage on King Street of more than two miles.

The commission denied the application on December 7, 1977, in a lengthy and factually detailed decision. The plaintiff’s appeal, returnable in January, 1978, alleged as aggrievement that he was a contract purchaser of 102 acres, that his application to rezone that property and other property was denied, and that the result of that denial was, inter alia, to prevent the entire property, which was the subject of the application, from being used for any purpose for which it was reasonably adapted.

By a new contract, dated December 1,1978, between the plaintiff and the owner of the 102 acres, which completely superseded the earlier contract, the plaintiffs status was changed from a purchaser to the holder of an option to purchase the 102 acres. His option terminated on November 30, 1980, except that it could be extended by the plaintiff to May 30,1981, if his appeal had been decided by the trial court and if there was a further appeal pending before the Supreme Court. On October 13, 1981, this option agreement was amended to provide, inter alia, that the option would expire at 11:59 p.m. on June 30, 1982, irrespective of the judicial status of the appeal from the decision of the commission. This was the status of the plaintiff when, the next day, October 14, 1981, the trial court took evidence on the issue of aggrievement and heard the appeal. On August 10,1982, the trial court rendered its judgment, finding the plaintiff to be aggrieved and sustaining his appeal as to the entire property.

We first consider whether the plaintiff was aggrieved by the commission’s denial of his application to change the zone of that portion of the 215 acres which was not the subject of his option. It is axiomatic that aggrievement “encompasses a twofold test: First, the party claiming aggrievement must demonstrate a specific, personal and legal interest in the subject matter of the decision, as distinguished from a general interest, such as is the concern of all members of the community as a whole. Second, the party claiming aggrievement must establish that this specific, personal and legal interest has been specially and injuriously affected by the decision.” Hall v. Planning Commission, 181 Conn. 442, 444, 435 A.2d 975 (1980). The injury to his specific, personal and legal interest must “ '[affect his] property or other legal rights.’ ” Fletcher v. Planning & Zoning Commission, 158 Conn. 497, 502, 264 A.2d 566 (1969).

The plaintiff had no interest, by way of purchase contract, option or otherwise, in that part of the property beyond the 102 acres which was the subject of his option. We perceive no basis in this record for a finding of aggrievement of the plaintiff as to the other 113 acres sought to be rezoned, nor has the plaintiff offered us such a basis. “[T]he mere denial of an application does not establish aggrievement.” Id.; Beckish v. Manafort, 175 Conn. 415, 420, 399 A.2d 1274 (1978); see also 4 Anderson, American Law of Zoning (2d Ed.) § 25.18 (“An owner whose land is unaffected by the decision in issue is not a person aggrieved by such decision.”); 8A McQuillin, Municipal Corporations (3d Ed. Rev.) § 25.292 (party must be aggrieved by application of zoning restriction to his property, and not by its application to other property). As to that part of the property in which the plaintiff had no interest, the trial court’s finding of aggrievement is clearly erroneous.

This leaves for consideration the issue of whether the plaintiff was aggrieved as to the 102 acres. Although at the time of his application to the commission and his appeal to the trial court, the plaintiff had a contract to purchase the property, at the time of trial his contract had been amended so that he had an option to purchase that property.

The plaintiff’s option rights, viewed without regard to their interruption and eventual termination, gave him an interest in the 102 acres sufficient to demonstrate a specific, personal and legal interest in the commission’s decision, and to demonstrate that his interest was specially and injuriously affected by that decision. Hall v. Planning Commission, supra; see also Richards v. Planning & Zoning Commission, 170 Conn. 318, 323-24, 365 A.2d 1130 (1976) (nonowners who are real parties of interest in property have standing to apply for special zoning treatment); Shulman v. Zoning Board of Appeals, 154 Conn. 426, 431, 226 A.2d 380 (1967) (contract purchaser of property has standing to apply for special zoning treatment); 4 Anderson, supra, § 25.12 (optionee has standing to appeal zoning decision).

This does not end our inquiry, however. It is clear that our Supreme Court has treated the concept of aggrievement to appeal a zoning commission by the same standards as aggrievement to appeal other administrative decisions. See, e.g., Beckish v. Manafort, supra; Nader v. Altermatt, 166 Conn. 43, 51-54, 347 A.2d 89 (1974). It is also clear that those standards require that the appellant must sustain his interest in the property involved throughout the course of his appeal. Craig v. Maher, 174 Conn. 8, 9, 381 A.2d 531 (1977).

This the plaintiff failed to do. His option to purchase the property, which originated in the contract dated December 1,1978, terminated on November 30,1980, or at the latest on May 30, 1981. It was then revived on October 13,1981, but that resurrection lasted only until June 30, 1982, some six weeks before the trial court’s judgment in this case. Thus, there was an interruption in the plaintiff’s interest in the property of approximately four and one-half months, and his right to purchase it had terminated by the time the judgment was rendered. We conclude, therefore, that the court erred in finding that he was aggrieved.

Although this conclusion disposes of the appeal, we are constrained to comment briefly on the merits of the trial court’s action. The commission, in denying the plaintiff’s application, was acting “in its legislative capacity. In such circumstances, it is not the function of the court to retry the case. Conclusions reached by the commission must be upheld by the trial court if they are reasonably supported by the record. The credibility of the -witnesses and the determination of issues of fact are matters solely within the province of the agency. The question is not whether the trial court would have reached the same conclusion but whether the record before the agency supports the decision reached. Calandro v. Zoning Commission, 176 Conn. 439, 440, 408 A.2d 229 (1979). The action of the commission should be sustained if even one of the stated reasons is sufficient to support it. Goldberg v. Zoning Commission, 173 Conn. 23, 25, 376 A.2d 385 (1977).” Burnham v. Planning & Zoning Commission, 189 Conn. 261, 265, 455 A.2d 339 (1983).

The commission gave a number of carefully articulated reasons for its action, one of which was the serious impact which the plaintiff’s plan would have on traffic congestion on King Street and other adjacent residential roads. This reason alone, which was supported by the record, was sufficient to support the commission’s decision. The trial court far exceeded its proper bounds in reversing the commission’s decision and ordering the zone change.

There is error, the judgment is set aside and the case is remanded with direction to dismiss the plaintiff’s appeal.

In this opinion the other judges concurred.

       The Supreme Court granted certification to appeal from the judgment of the trial court in this zoning case. General Statutes (Rev. to 1983) §§ 8-8, 8-9; Practice Book § 3135 (b) (subsequently amended 1983). That court subsequently transferred the appeal to this court. General Statutes § 51-199 (c).

       Other defendants, who intervened in the trial court, are owners of property contiguous to the property in question.

       The RA-4 classification is residential with a minimum lot size of four acres.

       The BEX-50 classification is for business executive offices.


text:
    Edward Sutt Associates, Inc. v. D & S Concrete Products, Inc.
    (2049)
    Dupont, C.P.J., Borden and Spallone, Js.
    Argued November 7, 1984
    decision released January 22, 1985

      Daniel Green, for the appellant (plaintiff).

      Keith A. Rubenstein, for the appellee (defendant).
   Per Curiam.

The plaintiff appeals from the trial referee’s rendering of judgment for the defendant. This is an action in which the plaintiff alleges that the defendant breached an oral agreement to install a septic system for a home in a workmanlike manner, or that the defendant negligently installed the septic system. Basically, all of the claimed errors relate to a challenge that the trial court made factual findings unsupported by the evidence.

Certain facts found by the trial referee are undisputed. The plaintiff constructed a house and hired the defendant to install a septic system for it. The plaintiff applied for permission to install that system, attaching a design to its application. The plaintiff conducted a percolation test and the results were embodied in its application.

The plaintiff contends that the septic system as provided by the defendant was not designed by the plaintiff nor was it equivalent to the original design. It claims that the defendant, on its own, altered the design from that originally proposed by it, and that the defendant alone sought approval of a new design. The plaintiff further argues that it did not backfill the system and that no evidence adduced at trial supports the trial court’s conclusion as to that fact. In addition, the plaintiff asserts that no facts allowed the trial court to conclude that the plaintiff incorrectly performed a percolation test or that the defendant did not breach an oral agreement to install a septic system.

An appellate review of the plaintiff’s claims of error in this case is limited to whether the decision of the trial court is clearly erroneous. Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221, 435 A.2d 24 (1980). In this case, the facts relied upon in the memorandum of decision are supported by the evidence.

There is no error.

       This appeal was originally filed in the Appellate Session of the Superior Court. General Statutes § 51-197a (c).

       The plaintiff appealed from the memorandum of decision rather than from the judgment, but the defendant, by failing to move for the dismissal of the appeal, waived this technical defect. Windham Community Memorial Hospital v. Willimantic, 166 Conn. 113, 115, 348 A.2d 651 (1974).

       In a separate action, the plaintiff herein was sued by the homeowner, and was found liable for the defective installation of the septic system. That case and the case which is the subject of this appeal were tried together. The plaintiff does not appeal from the judgment in favor of the homeowner. The exhibits in the latter case were not available to this court. It is the appellant’s responsibility to make necessary exhibits available for appellate examination. Drazen Lumber Co. v. Casner, 156 Conn. 401, 405-406, 242 A.2d 754 (1968). Without these exhibits there is a barely adequate basis for review of the plaintiff’s claims in this case, although the transcript supports the trial court’s judgment.


text:
    Paul Denby v. Voloshin Cadillac, Inc.
    (2099)
    Hull, Borden and Spallone, Js.
    Argued November 13, 1984
    decision released January 22, 1985

      Daniel V. Presnick, for the appellant (plaintiff).

      Peter D. Clark, for the appellee (defendant).
   Hull, J.

The plaintiff Paul Denby appeals from a judgment on a directed verdict in favor of the defendant, Voloshin Cadillac, Inc., as to liability for damage to the plaintiffs automobile. We find no error.

On or about September 7, 1979, unknown persons removed two wheels and tires from the plaintiffs car which he had left in the custody of the defendant auto dealer for the purposes of repair. The plaintiff was informed of the theft and that no further work would be performed on the car until he replaced the missing wheels and tires. Denby did not replace those items and thereafter the automobile was moved to another portion of the defendant’s premises for storage. There it was further vandalized.

The plaintiff brought suit alleging that the defendant was liable for the fair market value of his automobile, which had been rendered useless. The four counts of the complaint were based on theories of negligence, bailment, violation of the Connecticut Unfair Trade Practices Act (CUTPA); General Statutes §§ 42-110a through 42-1 lOq; and respondeat superior, respectively.

At the close of the trial, the court directed a verdict for the defendant as to the CUTPA and respondeat superior claims. The jury returned verdicts in favor of the defendant on the negligence and bailment counts, and the court rendered judgment accordingly on February 18, 1983.

The plaintiff claims that the court erred in directing a verdict for the defendant as to the third count.* ** We find this claim to be without merit.

Practice Book § 3000* *** requires a party who wishes to appeal from a directed verdict to file a timely motion to set aside the verdict pursuant to Practice Book § 320. An appeal may then be taken from the denial of that motion to set aside the verdict.

In the present case, no motion to set aside the verdict was filed until March 15, 1983, twenty-five days after the judgment had been rendered and one week after this appeal was filed.

Since no timely motion to set aside the verdict was filed and since the present appeal does not arise out of the denial of such a motion, this court is limited to a “plain error” standard of review. Pietrorazio v. Santopietro, 185 Conn. 510, 515, 441 A.2d 163 (1981); Eagar v. Barron, 2 Conn. App. 468, 472, 480 A.2d 567 (1984). An examination of the record discloses no such “plain error.”

There is no error.

In this opinion the other judges concurred.

       Gwendolyn Denby, mother of Paul Denby and holder of both title to and a purchase money security interest in the automobile in question, is also a party to this appeal. The appellant’s own brief speaks only of Paul Denby as a plaintiff, however. Consequently, we also use the singular form here.

       This appeal was originally filed in the Appellate Session of the Superior Court. General Statutes § 51-197a (c).

       The plaintiff also attempts to appeal from the denial of his motion for summary judgment. The denial of a motion for summary judgment is not appealable as it is not a final judgment as is required by Practice Book § 3000. Girard v. Carbones Auto Body, Inc., 35 Conn. Sup. 625, 403 A.2d 281 (1978); see also E. J. Hansen Elevator, Inc. v. Stoll, 167 Conn. 623, 627, 356 A.2d 893 (1975).
      A fortiori, such an appeal will not lie after an appellant has lost his case on the merits. See Thomas v. Commerford, 168 Conn. 64, 72, 357 A.2d 476 (1975) (denial of a motion for nonsuit not appealable or assignable as error); Cinque v. Orlando, 140 Conn. 591, 593, 102 A.2d 532 (1954); Maltbie, Conn. App. Proc. § 118.

       The plaintiff has not appealed from the judgment on the directed verdict as to the respondeat superior count. He argues that the motion for a directed verdict was, in fact, a motion to dismiss for failure to make out a prima facie case, pursuant to Practice Book § 302. Though the order resulting from the motion was less than clear, the circumstances make it apparent that such was not the case. Practice Book § 302 only applies to cases tried to the court and motions thereunder can only be made at the close of the plaintiffs case. The present case was a jury trial and the motion was made at the conclusion of the defendant’s case.
      The trial court rendered the following “Amendment to Judgment Pile” on May 11, 1984: “The trial court hereby directs a verdict in favor of the defendant on the third count of the complaint.” This action merely clarified what the court had done in deleting the third count from the complaint before submitting the matter to the jury.

       Practice Book § 3000 states in part: “If any party against whom a verdict is rendered at the direction of the court shall desire to appeal therefrom, he shall, within the time specified in Sec. 320 for filing such motions, file a motion to set it aside and if such a motion is denied, he may appeal from the final judgment and claim as error the refusal to set the verdict aside in the manner provided in regard to other motions to set verdicts aside.”

       Practice Book § 320 states: “Motions in arrest of judgment, whether for extrinsic causes or causes apparent on the record, motions to set aside a verdict and motions for new trials, unless brought by petition served on the adverse party or parties, must be filed with the clerk within five days after the day the verdict is accepted or judgment rendered, exclusive of such days as the clerk’s office is not required to be open for at least two hours; provided that for good cause the court may extend this time. The clerk shall notify the trial judge of such filing. Such motions shall state the specific grounds upon which counsel relies.”


text:
    In re Juvenile Appeal (85-2)

    (2092)
    Hull, Spallone and Daly, Js.
    Argued November 6, 1984
    decision released January 22, 1985

      Elaine Gordon, for the appellant (mother of the minor children).

      Edward J. Dolan, with whom, on the brief, was Kent Harvey, for the appellee (petitioner).

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

   Spallone, J.

This is an appeal* from a decision terminating the respondent mother’s parental rights to her two children pursuant to petitions filed by the children’s paternal aunt in accordance with General Statutes § 45-611

The record reveals the following facts: In early October, 1980, the mother and father of the children telephoned the petitioner from Texas and asked her to take the children. The parents feared that the children would be institutionalized following the imminent arrest of the father. The children were flown to Connecticut at the expense of the petitioner. They brought with them a power of attorney executed by both parents, giving the aunt and the paternal grandparents authority to provide for their “health, welfare and safety as well as [their] education, maintenance and support.” At the time of their arrival, the daughter had not yet turned five, and the son was three. The petitioner did not learn until later that the father’s impending incarceration was for the sexual abuse of his daughter.

Upon their arrival in Connecticut, the children appeared and behaved strangely. The petitioner testified that their skin was white and transparent-looking, that the son was “covered with bug-bites, head to toe,” and that both children ate voraciously with their hands, hoarded food in drawers and among their bedclothes, attempted to eat inedibles such as styrofoam cups, and appeared unfamiliar with the items of a normal child’s diet. The children lacked age-appropriate motor coordination and neither was toilet trained. Both were sexually precocious. The three year old son exhibited a knowledge of profane four-letter words and gestures. He explicitly described and reenacted experiences of sodomization by his father and was observed in sex play with his sister. Neither child ever asked or cried for either parent. The petitioner also testified that the mother telephoned the petitioner only once, two months after the children arrived in Connecticut. When she called, she did not ask about the children except to state that she had no money, could not then care for them, and that she did not want her daughter to be sexually abused by her husband.

In November, 1980, the petitioner initiated proceedings to terminate the rights of the mother and father on the basis of the parents’ signed consent. Upon learning of the full effect of termination of their parental rights, however, both parents retracted their consents. The petitioner subsequently amended her petition for termination to include as additional grounds that the children had been abandoned by their parents and that they had been denied, by reason of acts of parental commission or omission, the care, guidance or control necessary for their physical, educational, moral and emotional well-being. After a trial to the court, judgment was rendered for the petitioner on the latter ground. The mother now appeals from that judgment.

On appeal, the mother questions the procedure and evidence upon which the decision to terminate her parental rights was based. She claims that the trial court erred by denying her a continuance, in admitting out-of-court statements by her and the children and in admitting a report of an out-of-state social agency, and in finding that the petitions had been proven by clear and convincing evidence.

I

In order to address the respondent’s first claim of error, the lengthy sequence of events which led to the denial of the continuance need not be set forth in detail. Suffice it to say that from the initiation of these proceedings in November, 1980, until the date of trial on December 22, 1982, this matter was continued numerous times. When trial dates of December 22, 1982, and December 23, 1982, were ultimately scheduled, notice of those dates was mailed to the parties by the clerk of the trial court on November 4, 1982, and November 15,1982. On December 20,1982, the respondent filed a request for a continuance on the ground that she could not leave her place of employment. The trial court denied the motion “[i]n view of the long pendency of this case, the well-documented notices that were sent of these December trial dates, and the nature of the reason given for seeking the continuance.” The matter proceeded to trial as scheduled, and the court found the issues for the petitioner.

The respondent argues that the trial court’s refusal to grant her the continuance she requested on December 20,1982, was a denial of due process. Essentially, she contends that her due process rights should have been determined by the balancing test set forth in Mathews v. Eldridge, 424 U.S. 319, 334, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976), that the trial court did not apply the procedural safeguards established in that case, and that through its “laxity,” she was denied any means to effectively safeguard her interest in her children.

Mathews v. Eldridge, supra, which concerned a parent’s right to be represented by counsel in termination proceedings, mandated that three factors be considered in a termination proceeding: “First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” Mathews v. Eldridge, supra, 335, quoted in In re Juvenile Appeal (Docket No. 10155), 187 Conn. 431, 436, 446 A.2d 808 (1982). The respondent focuses upon the second factor of the Mathews test and directs this court’s attention to In re Juvenile Appeal (Docket No. 10155), supra, as an example of a termination of parental rights case which utilized an appropriate procedure to minimize risk of error and safeguard an absent parent’s interest. The respondent father in In re Juvenile Appeal (Docket No. 10155), supra, was incarcerated in California at the time of trial and requested a continuance until his release from prison. The trial court denied his request but allowed him to testify and be cross-examined by long-distance telephone, and to review and discuss with his attorney the transcript of the first day of hearings before the second session was held. In his appeal from the trial court’s decision terminating his parental rights, the father raised as a ground of error the denial of his request for a continuance. The Supreme Court found that the trial court’s unusual arrangements to secure the father’s participation so reduced the risk of error created by his absence that the balancing test of Mathews v. Eldridge, supra, did not support his due process claims.

The case before us is markedly different from In re Juvenile Appeal (Docket No. 10155), supra, and that case cannot serve as a procedural model for this one. Here, the respondent’s absence from trial was within her power to remedy. The record discloses that she was notified by her attorney of the trial dates on November 11,1982, but delayed informing him of her inability to attend until over a month later. Two days before the trial, she requested that the trial be continued for fear that if she were to leave her restaurant job in Ticonderoga, New York, at that time of year, she would lose her position and suffer economic hardship.

Practice Book § 1056 provides that continuances in juvenile matters “shall not be allowed unless good cause is presented.” A motion for continuance is addressed to the discretion of the trial court, and a ruling on a motion for continuance will not be upset absent a showing of clear abuse of that discretion. Vossbrinck v. Vossbrinck, 194 Conn. 229, 232, 478 A.2d 1011 (1984); Leveston v. Leveston, 182 Conn. 19, 24, 437 A.2d 819 (1980). In this case, the respondent had never appeared at a hearing since the commencement of these proceedings, and there was no evidence to show that she would soon become available. In the absence of a mechanical test for determining when a denial of a continuance is so arbitrary as to violate due process, the answer must be found in the circumstances of the case, with particular emphasis on the reasons presented to the trial judge at the time the request is denied. Ungar v. Sarafite, 376 U.S. 575, 589, 84 S. Ct. 841, 11 L. Ed. 2d 921, reh. denied, 377 U.S. 925, 84 S. Ct. 1218, 12 L. Ed. 2d 217 (1964); State v. McKnight, 191 Conn. 564, 576, 469 A.2d 397 (1983); State v. Bethea, 167 Conn. 80, 84, 355 A.2d 6 (1974). In view of the long history of these proceedings and the respondent’s minimal economic reason for the continuance, we hold that the respondent’s due process claim is without merit and the trial court’s denial of the continuance was well within its discretion.

II

The respondent’s next claim of error concerns the trial court’s evidentiary rulings. We note initially that a juvenile proceeding is essentially civil in nature and that certain procedural informalities are constitutionally permissible. Under the guise of informality, however, “procedural safeguards cannot be swept away”; Anonymous v. Norton, 168 Conn. 421, 425, 362 A.2d 532, cert. denied, 423 U.S. 935, 96 S. Ct. 294, 46 L. Ed. 2d 268 (1975); in so serious a matter as the termination of parental rights. This informality has been interpreted to require a “liberal rather than a strict application of the formal rules of evidence, provided due process is observed. . . . [Wjhere such evidence is likely to be determinative of the matter, the court should return to the more formal rules of evidence.” Tait & LaPlante, Handbook of Connecticut Evidence (1982 Sup.) § 1.2. Informality cannot, therefore, justify procedural irregularity where the natural rights of parents in their children are concerned. Anonymous v. Norton, supra.

With this in mind, we turn to the evidentiary rulings which the respondent claims as error. She first contends that the court erred in admitting out-of-court statements by herself, the children’s father and the children. The parents’ statements were offered at trial under the exception to the hearsay rule for admissions by a party. State v. Stepney, 191 Conn. 233, 250, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772 (1984). Such statements are admissible against the party who made them; Tait & LaPlante, Handbook of Connecticut Evidence (1976) § 11.5, p. 186; and were properly introduced to establish the mistreatment of the children by the declarant. The respondent contends, however, that the court erred to the extent that it viewed any admission of one parent as an admission against the other.

The acts of both parents are pivotal in assessing the chain of circumstances which led to these proceedings. While acts of commission in a case such as this are fairly ascertainable through direct evidence, proof of acts of omission tends to be elusive. The young age of the children and the fact that their mistreatment occurred in the privacy of the family home demand that proof of one parent’s failure to halt the mistreatment perpetrated by the other must rest largely upon circumstantial evidence. We thus find that the statements admitted to establish the declarant parent’s acts of commission were relevant to establish, by inference, the nondeclarant parent’s acts of omission. The fact that an admission by one parent might also support an inference of acts of omission by the other does not go to the admissibility of the statement. We hold that the court did not err to the extent, if any, that it viewed one parent’s admission to support an inference against the other.

The respondent next claims that the trial court erred in admitting statements by the children on the ground that the statements were verbal acts. She contends that they were hearsay and thus inadmissible. We disagree. The children’s statements, presented by the petitioner and the expert witnesses, revealed that the children possessed a level of acquaintance with sexual activity far beyond their years. Testimony that the son threatened to “make love” to his five year old sister and that he recounted being sodomized by his father were admissible as verbal acts. Those statements, totally apart from the truth of their content, were relevant to the conditions in which the children lived, if not to an inference of outright parental misconduct.

The final claim of error which the respondent raises in connection with the admission of evidence concerns a letter from the Texas department of human services addressing the circumstances of the children and the parents prior and shortly subsequent to the time the children arrived in Connecticut. The letter was appended to a report prepared by a department of children and youth services (hereinafter DCYS) social worker. The court admitted the entire DCYS report, including the appended letter, over the objection of the respondent who claimed that the letter was inadmissible hearsay.

The entire DCYS report was prepared pursuant to General Statutes § 45-61f (c), which provides in part that such reports “shall be admissible in evidence, subject to the right of any interested party to require that the person making it appear as a witness, if available, and subject himself to examination.” General Statutes § 45-61f (c) (3). In this case, the social worker who prepared the DCYS report was available for cross-examination on the contents of the report, including its appendices. The admission of the letter, as an appendix to the DCYS report, was properly within the exercise of the court’s discretion.

Ill

The respondent’s final claim is that the court erred in finding that the petitioner proved by clear and convincing evidence that the children had been denied by reason of acts of parental commission or omission the care necessary for their general well-being as set forth in General Statutes § 45-61f (d) (2). The essence of the respondent’s claim in this regard is that direct evidence as to any acts of commission or omission was lacking and that the judgment rested upon speculation and inference.

While it is true that evidence of the respondent’s acts of omission was largely circumstantial, that evidence was sufficient. The law does not distinguish between direct and circumstantial evidence as far as probative force is concerned. State v. Cimino, 194 Conn. 210, 211, 478 A.2d 1005 (1984). The standard of “clear and convincing proof” used in this case “denotes a degree of belief that lies between the belief that is required to find the truth or existence of the issuable fact in an ordinary civil action and the belief that is required to find guilt in a criminal prosecution.” Dacey v. Connecticut Bar Assn., 170 Conn. 520, 536-37, 368 A.2d 125 (1976). In a criminal case, the jury may draw reasonable, logical inferences from the facts proven as long as they do not resort to speculation and conjecture. State v. Festo, 181 Conn. 254, 259, 435 A.2d 38 (1980). In a case involving substantial circumstantial evidence, the cumulative impact of a multitude of facts, and not any one fact, may establish guilt. State v. Bember, 183 Conn. 394, 397, 439 A.2d 387 (1981). Insofar as circumstantial evidence can be and is routinely used to meet the higher standard of proof in a criminal prosecution, so can it be used in a case such as this where the applicable standard is that of clear and convincing proof.

It is not our function to retry the case or to pass upon the credibility of the witnesses; Johnson v. Flammia, 169 Conn. 491, 497, 363 A.2d 1048 (1975); and wé will not. Our review of the evidence indicates that the findings of the court were amply supported by the evidence.

There is no error.

In this opinion the other judges concurred.

       This appeal was originally filed in the Appellate Session of the Superior Court. General Statutes § 51-197a (c).

       The father pleaded guilty to this charge and is presently serving a ten-year term of imprisonment in Texas. He is not appealing the termination of his parental rights.

       General Statutes § 45-611 (d) provides in pertinent part: “[T]he court may approve the petition terminating the parental rights . . . if it finds, upon clear and convincing evidence ... (2) that the child has been denied, by reason of acts of parental commission or omission, the care, guidance or control necessary for his physical, educational, moral or emotional well-being whether such denial is the result of the physical or mental incapability of the parent or conditions attributable to parental habits, misconduct or neglect, and these parental acts or deficiencies support the conclusion that the parent cannot exercise, or should not, in the best interests of the child, be permitted to exercise, parental rights and duties . . . .”


text:
    In re Juvenile Appeal (85-3)

    (3095)
    Dupont, C.P.J., Borden and Spallone, Js.
    Argued November 7, 1984
    decision released January 22, 1985

      Daniel V. Presnick, for the appellant (mother of the minor child).

      Judith M. Earl, assistant attorney general, with whom, on the brief, was Joseph I. Lieberman, attorney general, for the appellee (commissioner of children and youth services).

      Nancy I. Hoskins, for the minor child.

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

   Spallone, J.

This is an appeal from the termination of the respondent mother’s parental rights. The child in question was born out of wedlock on January 25, 1982. Four days later, the respondent voluntarily placed the child in foster care because she had no housing or means of support. On October 18,1982, the child was returned to the respondent. Less than two months later, the child was again placed in foster care, this time by the respondent’s parents with whom she had left the infant. On March 15,1983, the department of children and youth services (hereinafter DCYS) filed two petitions, one alleging that the child was neglected and uncared for and the other seeking to terminate the parental rights of the respondent and the child’s putative father.

After a hearing on the petitions on July 28, 1983, October 4 and October 5, 1983, the child was adjudicated uncared for. The parental rights of the father were terminated upon his consent; General Statutes § 45-6If (d) (4); and the respondent’s parental rights were terminated upon the court’s finding that the state had proven by clear and convincing evidence that, within the meaning of General Statutes § 45-61f (d) (2), the child had “been denied, by reason of acts of parental commission or omission, the care, guidance or control necessary for her physical, educational, moral or emotional well-being whether such denial is the result of the physical or mental incapability of the parent or conditions attributable to parental habits, misconduct or neglect, and these parental acts or deficiencies support the conclusion that the parent cannot exercise, or should not, in the best interests of the child, be permitted to exercise, parental rights and duties.” The respondent now appeals from the judgment terminating her parental rights.

The following facts are undisputed. Upon the initial placement of the child in foster care and thereafter, DCYS attempted to reunite the respondent with her child by assisting her in finding a living situation in which she could care for the child, by allowing her extensive visitation so that she could develop a relationship with the child and learn the parenting skills necessary for her to care for the child, and by supporting her in obtaining psychological counseling. Although the respondent saw a therapist and visited the child with a fair degree of regularity, she did not secure living accomodations. She consequently did not achieve the measure of progress set forth in her private service agreement with the DCYS which would allow her to regain custody of the child.

When the respondent visited the child, she relied on the various foster mothers for personal support by confiding in them problems which had nothing to do with the child. She exhibited a desire to maintain the child in a stage of early infancy. She refused to allow the child to have shoes or to crawl because crawling would lead to walking, and she opposed the child’s eating table food or being weaned from the bottle. She incessantly changed the child’s clothes and diapers, and attempted to feed the child when the child was vomiting.

The seven week period in which the respondent cared for the child by herself came about through the efforts of a foster mother who persuaded the respondent’s parents to allow the respondent and the child to live with them. Prior to that time, the grandparents had not been willing to provide a residence for the respondent and the child because of the respondent’s psychiatric problems. During the period in which she resided with her parents, the respondent refused to allow the parents to pick the child up, continuously held the child, and kept the child awake at night because she desired companionship. This living arrangement ended when the respondent moved in with a boyfriend. When the boyfriend, who was not the putative father, objected to having a child living in his apartment, the respondent left the child with her parents and continued to live with the boyfriend. Two days later, the respondent’s parents returned the child to foster care.

Between the time of the child’s birth and October 5, 1983, the respondent was hospitalized twice for two week periods because of psychiatric problems. The clinical psychologist, who at the request of the court evaluated the respondent, the child and the child’s foster mother, found the respondent to be a confused, dependent, immature woman who demonstrated severe emotional and situational difficulties. It was his opinion that her borderline personality, evidenced by her repeated hospitalizations, denial of problems and self-defeating relationships with men, impaired her ability to develop an appropriate relationship with her child and to discharge child-care responsibilities adequately.

On appeal, the respondent has raised five claims of error. Having examined all of the respondent’s claims, we limit our review to the two which were properly briefed. The other claims evade meaningful appellate review because counsel has not researched the issues or formulated any legal arguments thereunder. McGaffin v. Roberts, 193 Conn. 393, 399 n.6, 479 A.2d 176 (1984); New England Whalers Hockey Club v. Nair, 1 Conn. App. 680, 682 n.2, 474 A.2d 810 (1984). The issues which we shall consider are (1) whether the court erred in failing to give the respondent the benefit of a presumption of parental fitness, and (2) whether the court erred in concluding that there was clear and convincing evidence that the respondent’s parental rights should be terminated.

“When state interference is brought to bear on the parent-child relationship, the natural rights of parents in their children are to be afforded deference and, absent a powerful countervailing interest, protection.” (Citations omitted.) In re Juvenile Appeal (81-6), 2 Conn. App. 705, 707, 483 A.2d 1101 (1984). Parenting extends beyond biology, however, and the continuing welfare of the child is a matter of legitimate state interest. McGaffin v. Roberts, supra, 400-401. Thus, although the relationship between parent and child is constitutionally protected, parental rights are not beyond limitation in the public interest. Id.

The respondent’s first claim, that the trial court erred in failing to give her the “presumption of parental fitness,” has no basis in the law of this state. “[T]he so-called ‘parental rights’ theory under which ‘the parent has rights superior to all others except when he is proved unfit.’ Clark, Law of Domestic Relations § 17.5, p. 591 (1968)”; In re Juvenile Appeal (Anonymous), 177 Conn. 648, 661, 420 A.2d 875 (1979); has never been adopted in Connecticut. Id.

In McGaffin v. Roberts, supra, the argument was raised that a presumption of parental fitness should be applied in a child custody matter. The Supreme Court rejected this argument by adhering to the statutory scheme which requires that the statutes governing child custody be construed in the best interests of any minor child affected by them. General Statutes § 45-42b. The court noted that the biological connection between parent and child, although a factor to be considered, is not determinative of the best interests of the child, and characterized the claimed presumption as merely “an expression of the natural importance of parenthood as a factor in the determination [of] what is in the best interests of the child.” McGaffin v. Roberts, supra, 406. Thus, under the “best interests” standard applicable to custody proceedings, the genetic connection between parent and child does not give rise to a presumption of parental fitness. We believe that there is, also, no such presumption, as that term is used in our law, in termination proceedings.

The standards which apply to termination proceedings are clearly and unambiguously set forth in General Statutes § 45-61f. That statute “carefully sets out and delimits four situations that, in the judgment of the legislature, constitute ‘countervailing interests’ sufficiently powerful to justify the termination of parental rights in the absence of consent. The commissioner of children and youth services, in petitioning to terminate those rights, must allege and prove one or more of the statutory grounds. In contrast to custody proceedings, in which the best interests of the child are always the paramount consideration and in fact usually dictate the outcome, in termination proceedings the statutory criteria must be met before termination can be accomplished and adoption proceedings begun.” In re Juvenile Appeal (Anonymous), supra, 671-72. Compliance with the statutory criteria is not vitiated by an all-encompassing “best interests” standard; id.; and the statutory criteria are not weighed against a presumption of parental fitness.

The respondent next argues that the court erred in finding that the termination of her parental rights was supported by clear and convincing evidence. She specifically contends that there was insufficient proof that her “ongoing relationship” with the child could not be nurtured and strengthened over time. The termination of parental rights pursuant to General Statutes § 45-61f (d) (2) involves its own specific elements which must be proven by clear and convincing evidence. “[T]he trial court first determines whether the subject child ‘has been denied, by reason of acts of parental commission or omission, the care, guidance or control necessary for his physical, educational, moral or emotional well-being.’ General Statutes § 45-61f (d) (2). Once that has been found the court considers whether ‘these parental acts or deficiencies support the conclusion that the parent cannot exercise, or should not, in the best interests of the child, be permitted to exercise, parental rights and duties.’ Id.” In re Juvenile Appeal (84-AB), 192 Conn. 254, 262, 471 A.2d 1380 (1984). An ongoing parent-child relationship that could be nurtured and strengthened over a period of time is simply not one of the elements which must be proven under General Statutes § 45-61f (d) (2).

We have reviewed the record together with the transcript and exhibits filed in the case. On the basis of this review, we cannot find that the facts set out in the trial court’s memorandum of decision are clearly erroneous. Practice Book § 3060D.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 17-43a (b) permits the simultaneous filing of neglect and termination petitions: “Any petition brought by the commissioner of children and youth services to the superior court, pursuant to subsection (a) of section 46b-129, may be accompanied by a petition for termination of parental rights with respect to such child as provided in section 45-61f provided notice shall be given in accordance with sections 45-61d and 45-611 The superior court, upon notice and hearing, in accordance with the provisions of section 46b-129, may, in addition to granting the petition filed pursuant to section 46b-129, grant the petition for termination of parental rights as provided in section 45-611”

       General Statutes § 46b-120 provides in pertinent part: “[A] child or youth may be found ‘uncared for’ who is homeless or whose home cannot provide the specialized care which his physical, emotional or mental condition requires.”

       As of October 5, 1983, the child had lived in six different homes.


author: Dupont, C.P. J.

text:
    Knights of Columbus Federal Credit Union v. David L. Salisbury
    (2050)
    Dupont, C.P.J., Spallone and Daly, Js.
    Argued October 10, 1984
    decision released January 22, 1985

      David L. Salisbury, pro se, the appellant (defendant).

      Eugene S. Melchionne, for the appellee (plaintiff).
   Dupont, C.P. J.

This is an action to recover the balance due on an installment promissory note. The matter was tried to the court, and the judgment rendered in favor of the plaintiff is the subject of this appeal.

On appeal, the defendant claims that the trial court erred (1) in failing to grant his motion to dismiss, (2) in striking several of his various special defenses, (3) in sustaining the plaintiff’s objection to his discovery-requests, and (4) in concluding that the plaintiff did not wilfully violate the disclosure provisions of General Statutes (Rev. to 1977) § 42-87.

I

The defendant first claims that the trial court erred in not dismissing the present action. He contends that the trial court had neither personal jurisdiction nor subject matter jurisdiction because the plaintiff’s attorney had previously represented the defendant.

The claim of a lack of personal jurisdiction is as close to meritless as it is possible to get. The defendant is a resident of the state, abode service was made upon him and the jurisdiction of the court over him is obvious. Standard Tallow Corporation v. Jowdy, 190 Conn. 48, 51-52, 459 A.2d 503 (1983). The claim of a lack of subject matter jurisdiction is equally virtueless. Subject matter jurisdiction refers to whether the court has competence to entertain the action before it. Meinket v. Levinson, 193 Conn. 110, 115, 474 A.2d 454 (1984). General Statutes § 51-164s provides that the Superior Court shall be the sole court of original jurisdiction for all causes of action except actions over which the courts of probate have original jurisdiction.

Authorities cited by the defendant from other jurisdictions, which address the claim of whether a prior attorney-client relationship between the defendant and the plaintiff’s attorney subject a complaint to dismissal, are inapposite. Doe v. A. Corporation, 330 F. Sup. 1352 (S.D.N.Y. 1971), aff'd, sub nom. Hall v. A. Corporation, 453 F.2d 1375 (2d Cir. 1972), and Slater v. Rimar, Inc., 462 Pa. 138, 338 A.2d 584 (1975), considered the issue of dismissal pursuant to the court’s supervisory powers over litigation and the conduct of attorneys. Cf. Practice Book § 231. Furthermore, the cases were dismissed without prejudice, unlike the dismissal sought here.

The record reveals that this motion was also considered, more appropriately, as a motion to disqualify the plaintiff’s attorney. The defendant asserts that the trial court erred in failing to provide him with an evidentiary hearing on the matter. Alternatively, he contends that the trial court should have granted his motion on the basis of his affidavit and of the supporting documentation submitted.

The defendant informed the trial court that he wanted an evidentiary hearing on the matter by filing, in accordance with Practice Book § 211, a request for oral argument and an opportunity to present testimony. When the matter came before the trial court, however, he stated that no testimony was necessary. Thus, he waived his claim to an evidentiary hearing.

Notwithstanding that fact, the defendant argues that the court, sua sponte, should have conducted an evidentiary hearing. The defendant mistakenly relies on Garden Mutual Benefit Assn. v. Levy, 37 Conn. Sup. 790, 437 A.2d 141 (1981), to support that proposition. That case held that where affidavits filed by both parties disclosed the presence of issues of fact in connection with a motion to dismiss, an evidentiary hearing must be conducted. A factual dispute triggers the hearing requirement. The plaintiff’s attorney here submitted no counter affidavits and the facts were not disputed since the plaintiffs attorney agreed that he had represented the defendant in two instances prior to the present litigation. Rather, the plaintiffs attorney contested the legal consequences of those facts. Under these circumstances, there was no error in the trial court’s failure to hold an evidentiary hearing.

The defendant further asserts that the evidence before the court established that the plaintiff’s attorney represented the defendant on matters which were patently related to the matter in issue.

The affidavit and documentation submitted by the defendant revealed that the prior representation of the defendant by the plaintiff’s attorney involved a lawsuit brought on behalf of the defendant and many other employees against the defendant’s employer in connection with a 1973 labor dispute and a lawsuit brought to recover for damage to an automobile owned by the defendant. As a result of this prior representation, the defendant claims that the plaintiff’s attorney became conversant with his finances. An examination of the record supports the conclusion that the latter assertion is the crux of the defendant’s claim. To support his disqualification claim, the defendant directs the court’s attention to Canon 4 of the Code of Professional Responsibility, which provides that “A Lawyer Should Preserve the Confidences and Secrets of a Client,” and Canon 9, which provides that “A Lawyer Should Avoid Even the Appearance of Professional Impropriety.”

Three competing interests are at stake in a motion to disqualify. They are the defendant’s interest in protecting confidential information from disclosure to the plaintiff, the plaintiff’s interest in freely selecting counsel of its choice, and “the public’s interest in the scrupulous administration of justice.” Goldenberg v. Corporate Air, Inc., 189 Conn. 504, 507, 457 A.2d 296 (1983). In deciding whether disqualification is necessary because of representation adverse to a former client, the interest of a party in freely selecting counsel has outweighed the expectations of a former client as to the scope of the attorney-client relationship unless “the relationship between the issues in the prior and present cases is ‘patently clear’ or . . . the issues are ‘identical’ or ‘essentially the same.’ Government of India v. Cook Industries, Inc., 569 F.2d 737, 739-40 (2d Cir. 1978).” State v. Jones, 180 Conn. 443, 449, 429 A.2d 936 (1980).

The trial court’s balancing of these interests is subject to reversal only if an abuse of discretion is manifest or injustice appears to have been done. Goldenberg v. Corporate Air, Inc., supra, 508. Further, an appellate court must accord every reasonable presumption in favor of the trial court’s decision. State v. Jones, supra, 448.

The defendant here was last represented by the plaintiff’s attorney in 1976, and the present action was filed in 1980. The length of time which elapses between the claimed adverse representations is another factor to be considered in determining whether the trial court has committed reversible error. Mailer v. Mailer, 390 Mass. 371, 455 N.E.2d 1211 (1983). The two prior matters, one a labor dispute and the other a property damage claim, and the present action to recover the balance due on a note raise distinct issues. Measuring the attorney-client relationship by the allegations in the complaint and the evidence admissible thereunder, the prior matters bear no relationship to the present action sufficient to disqualify the plaintiffs attorney. Trone v. Smith, 621 F.2d 994, 1000 (9th Cir. 1980).

II

The second claim of the defendant is that the trial court erred in striking his special defense alleging usury. Several prior versions of this special defense were stricken, and the special defense now in issue is the same, with augmented detail. Only the final version of the special defense need be considered. Nowak v. Nowak, 175 Conn. 112, 122-23, 394 A.2d 716 (1978). Paragraph six of that special defense provided: “Said note as shown in plaintiffs Exhibit ‘A,’ was accepted by the plaintiff for an amount greater than that actually loaned, with the intent to evade the provisions of . . . 12 U.S.C. § 1757 . . . .” On the basis of that assertion, the defendant argues that the trial court could not simply compare, as it did, the interest rate provided in the note and the interest rate ceiling established in the applicable federal statute.

The factual accuracy of the pleading is assumed. The question becomes whether such a loan violates 12 U.S.C. § 1757 and thereby bars the plaintiff from collecting any interest on the loan. Brooklyn Jenapo Fed eral Credit Union v. Schucher, 41 Misc. 2d 368, 245 N.Y.S.2d 637 (1963), considered whether the requirement that a borrower purchase shares in the federal credit union as a condition of obtaining the loan raised the effective interest rate of the loan and thereby violated 12 U.S.C. § 1757 (5) (Sup. IV 1962). In denying the plaintiffs motion for summary judgment, that court held that this defense presented a triable issue of fact.

Furthermore, the Bank Act has a provision, 12 U.S.C. 86, which is virtually in haec verba with 12 U.S.C. § 1757 (5) (a) (vii). Each provision serves the identical purpose of prohibiting the extraction of a usurious interest rate by the lender. It is appropriate, therefore, to examine the case law interpreting the former provision. Oscar Mayer & Co. v. Evans, 441 U.S. 750, 756, 99 S. Ct. 2066, 60 L. Ed. 2d 609 (1979); 2A Sutherland, Statutory Construction (4th Ed. 1984) § 51.03, p. 468. In American Timber & Tradings. First National Bank of Oregon, 690 F.2d 781 (9th Cir. 1982), the Ninth Circuit held that a compensating balance requirement reduced the net loan principal and thereby increased the effective interest rate charged to a usurious interest rate.

These cases indicate that the substance of the transaction rather than its form determines whether the loan is usurious. See also Hershey v. Anderson, 32 F. Sup. 1019 (D. Ky. 1940), aff'd, 127 F.2d 884 (6th Cir. 1942); annot., 92 A.L.R.3d 769; 45 Am. Jur. 2d, Interest and Usury § 112. The special defense in the present case, therefore, was legally sufficient and the trial court erred in striking it.

The defendant also claims that the trial court erred in striking his special defense alleging that the loan was unconscionable. Only the final version of this special defense is reviewed. Nowak v. Nowak, supra. The trial court in the present case held that the defendant did not allege sufficient facts in support of this special defense. The defendant’s special defense alleged he received less than the sum specified in the note and thus the effective interest rate was raised above that allowed by the applicable federal statute. In addition, the special defense alleged that the loan failed to comply in specific ways with the disclosure requirements of General Statutes (Rev. to 1977) § 42-87.

“The prohibition against usury is based on the principle that it is unconscionable to charge excessive interest on loans of money to those who are forced by necessity to borrow it.” Scientific Products v. Cyto Medical Laboratory, Inc., 457 F. Sup. 1373, 1379 (D. Conn. 1978). Our courts have held that a defense based on the loan being unconscionable due to the interest rate provided for in the note is permissible. Hamm v. Taylor, 180 Conn. 491, 495, 429 A.2d 946 (1980); Iamartino v. Avallone, 2 Conn. App. 119, 124-26, 477 A.2d 124 (1984). Here, the defendant pleaded sufficient facts to withstand a motion to strike directed at this special defense.

Ill

The defendant claims that the trial court erred in sustaining the plaintiffs objections to his discovery requests. Although the defendant assigned error to the sustaining of each and every one of the plaintiff’s objections, he only pursued, in his brief, the claim that the trial court erred in sustaining the objections to interrogatories concerning previous loans between the plaintiff and the defendant. Any other claimed error is deemed abandoned. Katz v. Brandon, 156 Conn. 521, 524, 245 A.2d 579 (1968). The defendant correctly argues that the information concerning other loans between the parties should have been discoverable because one of his special defenses alleges that the loan in question was a rewriting and refinancing of previous loans. This information, therefore, would assist the defendant in the preparation of his usury-defense.

“The granting or denial of a discovery request rests in the sound discretion of the court. Kiessling v. Kiessling, 134 Conn. 564, 568, 59 A.2d 532 (1948).” Standard Tallow Corporation v. Jowdy, 190 Conn. 48, 57, 459 A.2d 503 (1983). That discretion, however, is limited, and it is an abuse of discretion to deny the disclosure of information which would be of assistance in the prosecution or defense of the actions. Practice Book § 218; Standard Tallow Corporation v. Jowdy, supra, 58-59. The defendant’s special defense of usury was erroneously stricken and this information would have been of assistance in presenting that defense. Therefore, the plaintiff’s objections to this discovery request should have been overruled.

IV

The final claim of error advanced by the defendant involves the pertinence of General Statutes § 42-99 as the applicable penalty statute for violating the disclosure provisions of General Statutes (Rev. to 1977) § 42-87. That statute had previously been amended by Public Acts 1969, No. 454, § 32, which provided that disclosure violations were subject to the penalty provisions of General Statutes § 36-407. Thus, the parties’ discussion of the meaning of “wilful” in General Statutes § 42-99 is simply irrelevant. There is, therefore, no need to review the trial court’s ruling.

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

In this opinion the other judges concurred.

       This appeal was originally filed in the Appellate Session of the Superior Court. General Statutes § 51-197a (c).

       Ten other claims of error were raised by the pro se defendant. A discussion of them is not merited except to note that it was not error to award damages in excess of the plaintiff’s original demand for relief since it had amended that demand within the time provided in Practice Book § 175 for amendment, as of right. Many different trial judges participated in the claimed errors.

       The defendant, at oral argument in the trial court on his motion to dismiss, characterized the motion as both a motion to dismiss and a motion to disqualify.

       Another case cited by the defendant, Canadian Gulf Lines, Inc. v. Triton International Carriers, Ltd., 434 F. Sup. 691 (D. Conn. 1976), is distinguishable. That case was decided prior to the honing of the substantial relationship test by the second circuit in Government of India v. Cook Industries, Inc., 569 F.2d 737, 739-40 (2d Cir. 1978). Further, the former case involved a motion to disqualify filed by the garnishee. In garnishment proceedings, the indebtedness of the garnishee to the defendant-debtor is in issue. 6 Am. Jur. 2d, Attachment and Garnishment § 331. Lastly, the disqualification was justified largely, if not solely, upon the avoidance of the appearance of impropriety. The Second Circuit subsequently rejected the idea that an attorney be disqualified solely on that ground. Board of Education v. Nyquist, 590 F.2d 1241, 1247 (2d Cir. 1979).

       12 U.S.C. § 1757 (1982), which outlines the federal credit union’s powers, provides, in subsection (5) (A) (vi): “the rate of interest may not exceed 15 per centum per annum on the unpaid balance inclusive of all finance charges . . . .’’At the time the parties entered into the loan agreement, the applicable rate of interest was 1 per centum per month.

       A motion to strike challenges the legal sufficiency of the pleading. Practice Book § 152. For the purposes of this appeal, we assume the allegations of the special defense are true. Blake v. Levy, 191 Conn. 257, 258 n.1, 464 A.2d 52 (1983).

       12 U.S.C. § 1757 (5) (A) (vii) (Sup. 1 1977 & 1982) provides: “the taking, receiving, reserving, or charging of a rate of interest greater than is allowed by this paragraph, when knowingly done, shall be deemed a forfeiture of the entire interest which the note, bill, or other evidence of debt carries with it, or which has been agreed to be paid thereon. If such greater rate of interest has been paid, the person by whom it has been paid, or his legal representatives, may recover back from the credit union taking or receiving the same, in an action in the nature of an action of debt, the entire amount of interest paid; but such action must be commenced within two years from the time the usurious collection was made . . . .”

       “12 U.S.C. § 86. USURIOUS INTEREST; PENALTY FOR TAKING; LIMITATIONS. “The taking, receiving, reserving, or charging a rate of interest greater than is allowed by section 85 of this title, when knowingly done, shall be deemed a forfeiture of the entire interest which the note, bill, or other evidence of debt carries with it, or which has been agreed to be paid thereon. In case the greater rate of interest has been paid, the person by whom it has been paid, or his legal representatives, may recover back, in an action in the nature of an action of debt, twice the amount of the interest thus paid from the association taking or receiving the same: Provided, that such action is commenced within two years from the time the usurious transaction occurred.”

       General Statutes (Rev. to 1977) § 42-87 provides as follows: “Every instalment loan contract shall be in writing executed by the retail buyer and a copy thereof shall be delivered to such retail buyer at the time of the execution thereof. Such instalment loan contract shall disclose each of the following items, to the extent applicable: (1) The amount of credit of which the retail buyer will have the actual use, or which is or will be paid to him or for his account or to another person on his behalf; (2) all charges, individually itemized, which are included in the amount of credit extended but which are not part of the finance charge; (3) the total amount to be financed, that is, the sum of the amounts referred to in subdivision (1) and the amounts referred to in subdivision (2); (4) the amount of the finance charge; (5) the finance charge expressed as an annual percentage rate except in the case of a finance charge (A) which does not exceed five dollars and is applicable to an instalment loan not exceeding seventy-five dollars, or (B) which does not exceed seven dollars and fifty cents and is applicable to an instalment loan exceeding seventy-five dollars. A retail seller may not divide an extension of credit into two or more transactions to avoid the disclosure of an annual percentage rate pursuant to this subdivision; (6) the number, amount and due dates or periods of payments scheduled to repay the indebtedness; (7) the default, delinquency or similar charges payable in the event of late payments; (8) a description of any security interest held or to be retained or acquired by the retail seller in connection with the extension of credit, and a clear identification of the property to which the security interest relates. Within fifteen days after the execution of such instalment loan contract, the holder thereof shall send or cause to be sent to the retail buyer a policy or policies or certificates of insurance clearly setting forth the amount of the premium, the kind or kinds of insurance and the scope of the coverage and all of the terms, exceptions, limitations, restrictions and conditions of the contract or contracts of the insurance.”
      In 1977, the General Assembly deleted the disclosure requirements from the statute and replaced them by requiring that agreements pursuant to this chapter comply with the disclosure requirements set forth in Chapter 657. That amendment, however, did not become effective until the following October. General Statutes § 2-32. Thus, these disclosure requirements were still in force at the time the loan agreement was executed.

       Prior to oral argument, the defendant informed the court that he had filed a petition in bankruptcy and requested that this appeal be stayed pursuant to § 362 (a) (1) of the Bankruptcy Code. 11 U.S.C. § 362 (a) (1).
      The pertinent portion of that statute provides: “(a) Except as provided in subsection (b) of this section, a petition filed under section 301, 302 or 303 of this title or an application filed under section 5 (a) (3) of the Securities Investor Protection Act of 1970 (15 USC 78eee (a) (3)) operates as a stay, applicable to all entities, of
      “(1) the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under this title . . . .”
      We agree with the Appeals Court of Massachusetts that an appeal filed by the debtor is not a judicial proceeding against the debtor and, therefore, the petition in bankruptcy does not stay the present appeal. Marine Midland Bank v. Herriott, 10 Mass. App. 743, 412 N.E.2d 908 (1980); accord Shop in the Grove v. Union Federal Savings & Loan Assn., 425 So. 2d 1138 (Fla. Dist. Ct. App. 1982); Accredited Associates, Inc. v. Shottenfeld, 162 Ga. App. 575, 292 S.E.2d 417 (1982). Since this case must be remanded for further proceedings in accordance with this opinion, the question remains as to whether any further proceedings in this matter by the trial court are stayed by the provisions of the Bankruptcy Code, 11 U.S.C. § 362 (a) (1). When a judgment is set aside, the parties return to the status they had prior to the rendering of the judgment. Wendland v. Ridgefield Construction Services, Inc., 190 Conn. 791, 796-97, 462 A.2d 1043 (1983); Maltbie, Conn. App. Proc. § 345. On remand, the judicial proceeding will be an action against the debtor and consequently the proceedings will be stayed. Cf. Cathey v. Johns-Manville Sales Corporation, 711 F.2d 60, 62 (6th Cir. 1983).