author: Dupont, C. J.

text:
    Clayton Bristol v. Winifred M. Brundage
    (9004)
    Dupont, C. J., Spallone and O’Connell, Js.

      Argued December 3, 1990
    decision released March 28, 1991

      David S. Grossman, with whom, on the brief, was Celia Edwards, for the appellant (plaintiff).

      Amy D. Schuchat, for the appellee (defendant).

      Thomas F. Hogan, for the minor child.
   Dupont, C. J.

The sole issue of this appeal is whether a Court of Probate or a trial court has the power to appoint, as guardian of a minor child, a person other than the person designated in the will of the child’s sole surviving parent, in the absence of evidence that the testamentary guardian would not be a suitable guardian.

Candace Keeler died testate, leaving a minor son. The will named the plaintiff, her brother, Clayton Bristol, as the guardian of the person and of the estate of her son. The Probate Court of Torrington appointed Bristol and the defendant, Winifred Brundage, the child’s grandmother, as coguardians of the person of the child. The court established a schedule of visitation and residency for the child with the two guardians. The plaintiff appealed from the Probate Court decree to the Superior Court, claiming that the Probate Court had exceeded its authority as granted by General Statutes § 45-51 (now § 45U-596) when it appointed Brundage as a coguardian of the person of the minor child.

The trial court construed the statute as allowing the appointment by the Probate Court of persons other than the guardian named in the will, finding that the language of the statute directs, but does not mandate, that the guardian named by the deceased parent be appointed as the guardian of the orphaned child. The trial court dismissed the appeal without any discussion or finding as to the qualifications of the particular guardians or the best interests of the child.

General Statutes § 45a-596 provides in relevant part that “[t]he surviving parent of any minor may by will appoint a person or persons who shall be guardian or coguardians of the person of such minor, a guardian or coguardians of the estate or both.”

The plaintiff claims that the trial court (1) should have followed the wishes of the decedent, (2) had no power to appoint a guardian other than the testamentary guardian unless there was clear and compelling evidence that the testamentary guardian should not be selected, (3) was incorrect in its interpretation of General Statutes § 45a-596 (a), and (4) should have made an independent determination of guardianship.

The first three of the plaintiffs claims are really one claim, namely, that neither the Probate Court nor the trial court has any latitude to ignore the testamentary appointment of a guardian for a minor child by a sole parent without proof that the appointment would be detrimental to the child.

The only evidence introduced by the plaintiff in the trial court was the will executed by Keeler. The defendant introduced the testimony of Thomas J. Wall, the guardian ad litem appointed for the child, that the best interests of the child were to continue the joint guardianship established by the Probate Court.

Although some sections of chapter 802h of the General Statutes, §§ 45a-593 through 45a-638, have been judicially construed, § 45a-596 (a) has not. No sections of the chapter other than § 45a-596 (a) involve testamentary directives. Section 45a-606 provides that upon the death of either parent, the other parent shall become the sole guardian of any minor children. Another statute, § 46b-56b, provides that in any custody dispute pitting parent against nonparent, there is a presumption that it is in the best interest of the child that custody be awarded to the parent, which presumption may be rebutted. This statute was enacted to counteract the holding of McGaffin v. Roberts, 193 Conn. 393, 479 A.2d 176 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1747, 84 L. Ed. 2d 813 (1985), which held that § 45-43 (now § 45a-606) did not create a presumption that a surviving parent is entitled to preference in a custody dispute.

In this case, guardianship is not in dispute between a parent and another, but between a person chosen by a parent and another. The statute, § 45a-596 (a), is based on the premise that the parent is in the best position to determine what is in the best interests of his or her child. It is the parent who knows most about the needs of the child and the ability of the named guardian to satisfy those needs. The purpose of the statute is to take account of the special knowledge of surviving parents as to the best interests of their children. The purpose of § 45a-596 (a) is best served by affording to the testamentary choice of the surviving parent a presumption similar to that of § 46b-56b.

We hold that § 45a-596 (a) should be interpreted as mandating the appointment of the sole surviving parent’s testamentary choice of a guardian because it should be presumed that the best interests of the child are served by that appointment. This presumption, like that of § 46b-56b, may be rebutted only by a showing that it would be detrimental to the child to permit the named testamentary guardian to serve as such. Here, there was no such showing in the trial court. Unless the presumption is challenged by the introduction of rebuttal evidence, § 45a-596 (a) is not one of the sections of the chapter to be construed in terms of the best interests of the minor child. General Statutes § 45a-605 (a).

The Probate Court determined not that the plaintiff was unfit to be the child’s guardian but that he should share the guardianship with another, and the trial court upheld that determination. The trial court heard evidence, not that the plaintiff was unfit, but that the child’s best interests were advanced by a shared guardianship. As a matter of law, such a conclusion cannot stand. The plaintiff should have had an initial advantage over all other potential guardians because he was named in the will as the guardian. See Evans v. Santoro, 6 Conn. App. 707, 711 n.3, 507 A.2d 1007 (1986). Phrased differently, the plaintiff should have had the benefit of a presumption that he should be named the sole guardian of the child. It was the burden of the defendant to put the presumed fact, namely, that it was in the best interests of the child to have the plaintiff be the sole guardian, into issue by introducing evidence to the contrary. Id. The defendant introduced no such evidence. The trial court should, therefore, have sustained the appeal because the plaintiff should have been appointed the sole guardian.

The ordinary meaning of the words of § 45a-596 (a) is that a surviving parent may choose by testamentary appointment a guardian for his or her minor child who must be appointed as guardian. The statute would have no purpose if the appointment by the surviving parent could be ignored without a reason.

The last claim of the plaintiff is that the trial court should have made an independent determination of guardianship. In an appeal from probate, the trial court exercises the right to make an independent and de novo determination of the issue involved, without regard to the result reached by the Probate Court. Prince v. Sheffield, 158 Conn. 286, 259 A.2d 621 (1969). Here, the independent determination could lead to no other conclusion than that the appointment of the plaintiff as sole guardian was mandated as a matter of law because the trial court had no evidence before it that the plaintiff was not a fit guardian.

Were it not for the death of the plaintiff just prior to the release of this opinion, the case would be remanded to the trial court with direction to sustain the appeal. Although no practical relief can be awarded to the plaintiff, there still exists an actual controversy over the guardianship of the minor child. See In re Noel M., 23 Conn. App. 410, 413, 580 A.2d 996 (1990). We therefore remand this case to the trial court for further proceedings in light of our determination that the defendant should not have been appointed as coguardian. See General Statutes § 45a-616.

In order to protect the primary interest of the child in a continuous, stable custodial placement, physical custody of the child shall remain with the defendant until further proceedings have been concluded. O’Neill v. O’Neill, 13 Conn. App. 300, 314-15, 536 A.2d 978, cert. denied, 207 Conn. 806, 540 A.2d 374 (1988).

The judgment dismissing the appeal from probate is reversed and the case is remanded to the trial court for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       In 1991, General Statutes § 45-51 was transferred to § 45a-596 with no change in the language of the section. In this opinion, the new statutory section number will be used.

       In any custody dispute involving a parent and a nonparent, General Statutes § 46b-56b creates a rebuttable presumption, favoring the parent, that it is in the best interest of the minor child to be in the custody of the parent. General Statutes § 45a-606 provides that if one parent dies, then the sole surviving parent shall become the sole guardian of the minor child. When a custody dispute arises between that sole surviving parent and a nonparent, § 46b-56b gives the sole surviving parent thé benefit of its rebut-table presumption.

       General Statutes § 46b-56b establishes a presumption created by the legislature. Not all presumptions are legislative. Some presumptions are accorded by the courts and are grounded on general experience, probability, or policy or convenience. See Vincent v. Mutual Reserve Fund Life Assn., 77 Conn. 281, 288, 58 A. 963 (1904); Booth v. Booth, 7 Conn. 350, 367 (1829); Anderson v. Litchfield, 4 Conn. App. 24, 28, 492 A.2d 210 (1985).

       This court was notified on March 13,1991, that the plaintiff had died.


source: Caselaw Access Project

author: Norcott, J.

license: Public Domain

text:
    State of Connecticut v. Leonard R. Banks
    (8774)
    Dupont, C. J., Daly and Norcott, Js.

      Submitted on briefs January 11
    decision released April 9, 1991

      Donald Browne, state’s attorney, Susann E. Gill, assistant state’s attorney, and JohnF. Blawie, deputy assistant state’s attorney, filed a brief for the appellant (state).
   Norcott, J.

The sole issue in this appeal is whether the trial court properly dismissed the state’s information against the defendant.

The facts are not in dispute. The defendant was arrested on December 11, 1988, and charged with carrying a pistol without a permit in violation of General Statutes § 29-35 and unlawful discharge of a firearm in violation of General Statutes § 53-203. On September 11, 1989, the defendant entered a plea of guilty under the Alford doctrine to the charge of carrying a pistol without a permit. The state entered a nolle to the other charge and, as a part of the plea agreement, there was to be a sentence recommendation of two years, execution suspended after one year, with the defendant retaining the right to argue for a lesser sentence than the mandatory one year sentence for a violation of § 29-35 provided by General Statutes § 29-37 (b).

When the defendant’s plea was entered, the state’s attorney explained the factual basis for the plea to the court as follows: The defendant and another man were in the bathroom at the Post Office Cafe in Bridgeport when a loud bang was heard from therein. The bartender entered the bathroom and found a slug in one of the walls. Descriptions of the two men were given to the police, and the defendant and his companion were apprehended at the Brass Guitar in Bridgeport. When he was approached by the police, the defendant stated, “I have a gun.” The police then patted him down and found a nine millimeter handgun containing seven bullets in a holster clipped to the defendant’s waistband. The defendant was later discovered to possess neither a Bridgeport nor a state of Connecticut permit to carry a pistol.

From these facts, the trial court found that an adequate factual basis existed for the plea. The court canvassed the defendant and found that he had entered his plea knowingly, intelligently and voluntarily. The court then accepted the plea and continued the matter for sentencing.

On December 14, 1989, the defendant appeared before the court for sentencing and, through counsel, argued that the mandatory one year sentence should not be imposed because certain mitigating factors were present. The trial court then indicated that it had found a problem with the case. After reviewing the information contained in the police report, the court vacated the defendant’s plea and dismissed the charge “on the grounds that the arrest and the charge in this case came as a result of an illegal search and seizure in violation of the Constitution of the United States of America as well as the applicable section . . . of the Constitution of the State of Connecticut.” The court based its conclusion on the fact that the police report indicated that, after the disturbance at the Post Office Cafe, the defendant’s companion stated that he was responsible for the gunshot, yet it was the defendant who was subsequently patted down at the Brass Guitar.

The state immediately excepted to the court’s ruling and requested a continuance to show probable cause for the arrest. The court did not accept the state’s argument that the court should not have based its ruling solely on the police information report and concluded that it needed no more information on probable cause because “[m]y finding is based upon a lack of an adequate factual basis upon which to accept the plea of guilty and impose a sentence.” The court also stated that there was no need for a probable cause hearing because a plea had already been entered. The court then granted the state’s motion for permission to appeal. See State v. Tucker, 23 Conn. App. 559, 583 A.2d 139 (1990). Thereafter, in response to the state’s motion for articulation, the court stated that its dismissal was based on the illegality of the defendant’s arrest.

On appeal, the state argues that the trial court had no authority to enter a sua sponte dismissal of the information both without a hearing and after the defendant had waived his right not to be arrested without probable cause. We agree.

A trial court can dismiss a prosecution on its own motion only under certain prescribed circumstances. “In the absence of statutory authority, the court has no power of its own motion to dismiss a criminal prosecution unless there is a fundamental legal defect in the information or indictment (such as want of jurisdiction or form of the information), or a constitutional defect such as denial of the right to a speedy trial or illegal ity of arrest.” (Emphasis added.) State v. Carr, 172 Conn. 608, 610-11, 376 A.2d 74 (1977). The trial court in the present case dismissed the prosecution on its finding that the police lacked probable cause to arrest the defendant and that the arrest was therefore illegal. We are not persuaded, however, that the trial court was empowered to act in that manner after the defendant had waived his rights under the state and federal constitutions not to be arrested without probable cause.

“As a general rule, an unconditional plea of guilty or nolo contendere, intelligently and voluntarily made, operates as a waiver of all nonjurisdictional defects and bars the later assertion of constitutional challenges to pretrial proceedings. . . . Therefore, only those issues . . . which relate either to the exercise of jurisdiction by the court or to the voluntary and intelligent nature of the plea are ordinarily appealable after a plea of guilty or nolo contendere.” (Citations omitted; emphasis in original.) State v. Madera, 198 Conn. 92, 97-98, 503 A.2d 136 (1985); see also State v. Satti, 2 Conn. App. 219, 224, 477 A.2d 144 (1984). Such issues include the violation of the double jeopardy clause, the lack of subject matter jurisdiction and the constitutionality of the statute under which the defendant is charged. State v. Madera, supra, 98 n.6; see also State v. Gilnite, 202 Conn. 369, 374 n.4, 521 A.2d 547 (1987).

An Alford plea operates as the “functional equivalent” of a plea of nolo contendere. North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970). As such, an Alford plea has the same legal effect as a plea of guilty or nolo contendere on all further proceedings within the indictment. State v. Rish, 17 Conn. App. 447, 456, 553 A.2d 1145, cert. denied, 211 Conn. 802, 559 A.2d 1137, cert. denied, 493 U.S. 818, 110 S. Ct. 71, 107 L. Ed. 2d 38 (1989). Therefore, a defendant who has submitted an unconditional plea under the Alford doctrine, like a defendant who has pleaded guilty or nolo contendere without condition, can challenge only the court’s jurisdiction or the voluntary and intelligent nature of the plea.

The defendant in the present case, by virtue of his unconditional plea under the Alford doctrine, waived his right to challenge the constitutionality of his arrest and subsequent search. “[A]n illegal arrest imposes no jurisdictional barrier to a defendant’s subsequent prosecution . . . .” State v. Fleming, 198 Conn. 255, 262-63, 502 A.2d 886, cert. denied, 475 U.S. 1143, 106 S. Ct. 1797, 90 L. Ed. 2d 342 (1986). Nor does it impact upon the voluntary and intelligent nature of a defendant’s plea. Thus, the trial court in the present case improperly raised an issue which the defendant himself had already waived.

Because we find that the defendant waived his right to contest his arrest and subsequent search, we need not reach the state’s claim that it was entitled to an opportunity, as requested, to show probable cause for the defendant’s arrest.

The judgment is reversed and the case is remanded with direction to reinstate the defendant’s plea and to continue the matter for sentencing.

In this opinion the other judges concurred.

       The court also held that its ruling did not encompass the unlawful discharge count which the state had nolled. That count is not a part of this appeal.


author: Foti, J. Lavery, J.,

text:
    Dorothy Gagnon v. Planning Commission of the City of Bristol et al.
    (8757)
    Dupont, C. J., Foti and Lavery, Js.

      Argued September 24, 1990
    decision released April 9, 1991

      JoAnn Paul, for the appellant (plaintiff).

      Ann T. Baldwin, assistant corporation counsel, for the appellee (named defendant).

      Alfred F. Morrocco, Jr., for the appellees (defendants Jon M. Pose et al.).
   Foti, J.

The plaintiff appeals from the judgment rendered dismissing her appeal from the approval by the defendant city planning commission of Bristol (commission) of the application of the defendants, Jon Pose, James Sessions, Dominic Pietrofesa and Josephine Pietrofesa (applicants) for a subdivision allowing two parcels of land on Shrub Road to be divided into eighteen single-family building lots. The court, because the applicants were subsequently granted an application for a resubdivision from which no appeal was taken, dismissed her appeal as moot. We affirm the dismissal.

Early in June, 1988, the applicants filed their application and public hearings were held. The application was granted and the plaintiff filed a timely appeal. After the appeal from the granting of the application for a subdivision, in December, 1988, the applicants applied for a resubdivision of the property. Notice of a public hearing on the application for the resubdivision was published in the Bristol Press on December 10, 1988, and December 19, 1988. The application was granted on December 21, 1988, following the public hearing, which was not attended by the plaintiff. Notice of the decision of the resubdivision approval was published on December 24,1988, in the Bristol Press. No appeal to the trial court from the granting of the resubdivision application was ever filed. The applicants filed the resubdivision map and it was subsequently signed by the chairman of the commission and filed in the Bristol land records. On November 13,1989, the trial court dismissed the appeal of the approval of the original subdivision because there was no longer any practical relief that the court could provide.

The trial court held that the resubdivision controlled the rights of the applicants to develop the land, and, therefore, the plaintiffs appeal from the approval of the original subdivision could not result in any practical relief.

“Mootness implicates the subject matter jurisdiction of this court.” Sadlowski v. Manchester, 206 Conn. 579, 583, 538 A.2d 1052 (1988). “[I]t is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow.” Reynolds v. Vroom, 130 Conn. 512, 515, 36 A.2d 22 (1944); Con necticut Resources Recovery Authority v. Freedom of Information Commission, 19 Conn. App. 489, 493-94, 562 A.2d 1145 (1989). If no practical relief can be afforded to the parties, the appeal must be dismissed. Garcia v. Brooks Street Associates, 209 Conn. 15, 22, 546 A.2d 275 (1988); Chomko v. Patmon, 20 Conn. App. 159, 161, 565 A.2d 250 (1989).

First, the plaintiff argues that her appeal could have resulted in practical relief because the resubdivision application was conditioned on the outcome of her appeal. She alleges that the court’s finding that the resubdivision application was granted unconditionally is incorrect. The plaintiff relies on representations made by the city engineer, a nonvoting ex officio member of the commission. These remarks made during and following the hearing stated that the approval of the resubdivision application would not go into effect until after the plaintiff’s appeal was resolved.

“This court will not retry the facts found by the trial court when they are amply supported by the evidence and are not clearly erroneous.” Oak Leaf Marina v. Ertel, 23 Conn. App. 91, 94, 579 A.2d 568 (1990); Halepas v. Malerba, 3 Conn. App. 403, 404, 488 A.2d 847 (1985). The trial court made a finding of fact that the commission’s final decision on the resubdivision application was unconditional, and that the approval of the subdivision application was therefore subsumed by the approval of the resubdivision application. The court’s finding was supported by ample evidence, including remarks by the city planner and the city engineer that were recorded in the minutes of the hearing. Because the court’s finding on this issue was supported by substantial evidence and the plaintiff has not carried the burden of showing the court’s finding to be clearly erroneous, the finding that the resubdivision application was granted without condition and without regard to the approval of the subdivision application must stand. See Oak Leaf Marina v. Ertel, supra, 97. If this finding must be deemed correct, any claimed deficiencies or irregularities in the resubdivision hearing are irrelevant since no appeal was taken from the approval of the resubdivision.

Second, the plaintiff argues that even the unconditional approval of the resubdivision application during the pendency of her appeal is insufficient to defeat her claims. She alleges that the resubdivision application was filed by the applicant to avoid the appellate process, and argues that because the issues raised in her appeal were not addressed at the resubdivision hearing, there is still an actual controversy as to these issues. We do not agree.

The applicants were required to file a resubdivision application by the city’s subdivision regulations. The resubdivision application was subsequently granted. Notwithstanding any similarities between the original subdivision application and the resubdivision application, approval of the resubdivision application controls the applicant’s rights to develop the parcel. The plaintiff’s appeal of the approval of the original subdivision application cannot substitute for a timely appeal from the approval of the resubdivision application. Because there was no appeal of the approval of the resubdivision application as required; see R. B. Kent & Sons, Inc. v. Planning Commission, 21 Conn. App. 370, 573 A.2d 760 (1990); there is no actual and existing controversy regarding its approval. The plaintiff has not and cannot now challenge the power of the commission to act on the resubdivision application on the ground of a lack of statutory authorization. See Moscowitz v. Planning & Zoning Commission, 16 Conn. App. 303, 313, 547 A.2d 569 (1988). The propriety, correctness or legality of that approval cannot be attacked directly or collaterally at this point; since it is not before us, we will not speculate as to its validity. We will not render judicial opinions on points of law absent an actual and existing controversy. Butzgy v. Glastonbury, 203 Conn. 109, 115, 523 A.2d 1258 (1987).

The subsequent approval of the resubdivision application, absent a timely filed appeal, prevents the court from affording any practical relief to the plaintiff. The case is, therefore, moot.

The judgment dismissing the plaintiff’s appeal is affirmed.

In this opinion Dupont, C. J., concurred.

Lavery, J.,

dissenting. I disagree with the decision of the majority. The approval of the resubdivision application by the defendant Bristol planning commission constituted a void act for four separate and distinct reasons and therefore should not have been allowed to provide a basis for sustaining a collateral attack to moot an appeal that had been properly brought. First, the defendant did not have the statutory authority to approve a resubdivision application based on a subdivision that did not yet exist because it was neither finally approved nor recorded. General Statutes § 8-25 provides in relevant part that “[a]ny plan for subdivision shall, upon approval ... be filed or recorded by the applicant in the office of the town clerk within ninety days of the date such plan is delivered to the applicant . . . and any plan not so filed or recorded within the prescribed time shall become null and void .... All such plans shall be delivered to the applicant for filing or recording promptly after the time for taking an appeal from the action of the commission has elapsed, and in the event of an appeal, promptly upon the termination of such appeal by dismissal, withdrawal or judgment in favor of the applicant. No such plan shall be recorded or filed by the town clerk or district clerk or other officer authorized to record or file plans until its approval has been endorsed thereon by the chairman or secretary of the commission, and the filing or recording of a subdivision plan without such approval shall be void.” Under this section of the statute, it is clear that the approval of a subdivision plan does not become final unless and until an approved map is delivered to the applicant for filing and then is timely filed as a final map. Delivery cannot be made until the period during which an appeal may be taken has elapsed or until a timely appeal has been terminated by virtue of its dismissal, withdrawal, or rendering of a judgment in favor of the applicant.

Our Supreme Court has held that under General Statutes § 8-28 the decision of a planning commission on a subdivision plan is binding and final unless a timely appeal is taken. Whittaker v. Zoning Board of Appeals, 179 Conn. 650, 661, 427 A.2d 1346 (1980). Thus, the approval process is not complete until the appeal period has run or the appeal is finalized in court, and the planning commission’s action has been sustained.

In this case, no final map had been delivered to the applicant due to the pendency of the appeal brought by the plaintiff. No final approved map was filed. Therefore, no subdivision existed that could provide the basis required for the resubdivision application.

Second, General Statutes § 8-18, which is nearly identical to § 1.04 of the Bristol subdivision regulations, defines a resubdivision as “a change in a map of an approved or recorded subdivision or resubdivision if such change (a) affects any street layout shown on such map, (b) affects any area reserved thereon for public use or (c) diminishes the size of any lot shown thereon and creates an additional building lot, if any of the lots shown thereon have been conveyed after the approval or recording of such map . . . .” (Emphasis added.) The clear and unambiguous language of these statutory definitions requires that an approved or recorded subdivision or resubdivision must exist as a necessary predicate to the filing of a resubdivision application. In addition, a resubdivision is appropriate only if any of the lots have been conveyed after the approval and recording of the map. See T. Tondro, Connecticut Land Use Regulation p. 100.

This interpretation of the statute is consistent with § 1.05 of the Bristol subdivision regulations which provides for a “Revision of a subdivision” in those instances where no affected part of the land has been conveyed. The Bristol ordinance provides that “Revision of subdivision as used in these regulations means only a minor change in size of property lines inside of the area insofar as no street entrance or future public property is changed and no affected part of the land is already sold. Such minor change shall not violate in any way the zoning ordinance of the City of Bristol or these regulations.”

The purpose of requiring a public hearing on a resubdivision application is to allow any purchaser who took title to a lot in reliance on the approved and filed map to have an opportunity to be heard on any changes in that map that might adversely affect her. The goal of § 1.05 is to allow a developer to revise lot lines without necessitating the formality of filing a resubdivision application when no conveyances have been made in reliance on the original subdivision map.

In 1967, during debate on an amendment to the definition of resubdivision in General Statutes § 8-18 that would allow neighbors of two adjoining lots to adjust boundaries without filing an application for a resubdivision, Representative Lucille A. Matarese stated: “Under the present law once you have an approved subdivision on file in the town clerk’s office after any one of the lots thereon have been conveyed any changes which would diminish the size of any lot would automatically constitute a resubdivision and would require an application for approval to be filed . . . .” (Emphasis added.) Conn. Joint Standing Committee Hearings, General Law, Pt. 6, 1967 Sess., p. 1714.

It is clear from the words of the statute and from the legislative intent that it is necessary to have a conveyance out of a subdivision before one can apply for resubdivision. The defendant was without jurisdiction to approve a resubdivision application because the underlying subdivision had not had any lots conveyed out of it, a condition precedent for a resubdivision. The underlying subdivision plan was neither approved nor recorded and did not exist except as an application the approval of which was on appeal.

Third, even if a resubdivision hearing was appropriate, the resubdivision hearing held by the defendant was jurisdictionally flawed in that a new wetlands report was required prior to the approval of the resubdivision application. General Statutes § 8-26 provides in part: “If an application involves land regulated as an inland wetland or watercourse under the provisions of chapter 440, the applicant shall submit an application to the agency responsible for administration of the inland wetlands regulations no later than the day the application is filed for the subdivision or resubdivision. The commission shall not render a decision until the inland wetlands agency has submitted a report with its final decision to such commission. In making its decision the commission shall give due consideration to the report of the inland wetlands agency.”

A review of the December 21, 1988 transcript of hearings held by the defendant commission on the resubdivision application discloses the following colloquy:

“Chairman Mattson: Commissioners, any objections to hearing this, this evening? Mr. Morrocco, do you want to make comments on this?

“Attorney Morrocco: . . . For the records, a Wetlands Permit was issued and I would like to get into that in a minute. That Wetlands Permit concerned the drainage down Shrub Rd. and down into Burlington Ave. None of the lots that had to be resubdivided affects that because they flow in a different direction. But I do want to report to the Commission, I was asked at the last meeting to go back to Wetlands and in going back to Wetlands it appears that—

“Chairman Mattson: That Wetlands is to the previous application, not to this one.

“Attorney Morrocco: Well, it’s on this map—

“Chairman Mattson: If this flows in a different direction—

“Attorney Morrocco: It does.

“Chairman Mattson: Then how does it apply?

“Attorney Morrocco: Well it’s in the subdivision and it flows in a different direction but I wanted to report to you, this Commission had asked me to go back to Wetlands to see if we could eliminate that holding

This record indicates that no new application was made to the inland wetlands agency on the proposed resubdivision and the commission did not consider a new inland wetlands report prior to its approval of the resubdivision application. Under General Statutes § 8-26, the procedures that must be followed for a resubdivision application approval are identical to the procedures required for subdivision application approval, with the sole exception being that a resubdivision application requires a public hearing. General Statutes § 8-26; see also T. Tondro, supra, p. 101.

Finally, although the defendant asserts that proper notice of the public hearing on the resubdivision application was given by the defendant, the record before us is remarkable in the absence of a copy of such notice while copies of all the other notices at issue are included in the record. Testimony of members of the Bristol planning commission on the night of the hearing and alleged approval of the resubdivision application leads to the conclusion that the meeting was not properly noticed. General Statutes § 8-26 provides in relevant part: “No plan of resubdivision shall be acted upon by the commission without a public hearing. Notice of the public hearing shall be given by publication in a newspaper of general circulation in the municipality at least twice at intervals of not less than two days, the first not more than fifteen days, nor less than ten days, and the last not less than two days prior to the date of such hearing, and by sending a copy thereof by registered or certified mail to the applicant.”

A review of the record disclosed the following discussion, which occurred between members of the commission on December 21, 1988, the evening of a general public hearing on the resubdivision application in question.

“Mr. Smith: We have an application for a re-subdivision entitled, Nature Center Estates, located, Shrub Rd., proposed owner’s name, Connecticut Development, Ltd., 200 Summer St., Bristol CT., proposed developer’s name, Jon Pose, 37 Peachtree Lane, Bristol . . . Mr. Chairman, as this is a re-subdivision, a hearing is required on it.

“Chairman Mattson: Well, is it a requirement that a public hearing be set?

“Mr. Smith: No, just that hearing is required. If the Commission desires to hear it tonight, they can do that.

“Chairman Mattson: Does the Commission wish to hear this application this evening? It appears that it’s just the adjustment of property lines, Mr. Smith?

“Commissioner Newcity: That’s the only problem on it?

“Mr. Smith: Yes.

“Chairman Mattson: Plus decreasing the size of the cul-de-sac?

“Mr. Smith: It’s moving the cul-de-sac on Interval Rd., north about 25 ft. and taking a piece of property along that southerly end of the property and proposing to deed it to an adjacent property owner [inaudible] that all of the lots are still conforming by the zoning. Basically it’s the same subdivision that the Commission has approved, with the minor lot changes and with the road change.

“Chairman Mattson: Now, my understanding, Alan, maybe you can answer this for me, is that this subdivision is under litigation, is it?

“Mr. Weiner: I believe that’s correct.

“Chairman Mattson: What does that do for this public hearing?

“Mr. Weiner: I don’t believe that it affects the public hearing. That’s not a legal opinion on my part, but I believe that in a real sense they’re independent.

“Mr. Smith: Mr. Chairman, that is verified by the opinion we’ve received from the Corporation Counsel on the previous, I believe it was Wildwood Estates on Mines Road, we had a second application come in for that piece of property and the Corporation Counsel told us it was an independent action. I’ve discussed this verbally with the Corporation Counsel in that same vein and it was indicated to me that that same opinion applies to this case.

“Chairman Mattson: Okay then Commissioners, are you prepared to hear this, this evening?”

From this discussion and the absence of any evidence to the contrary it is obvious that the hearing on the resubdivision application did not meet the notice requirements articulated in General Statutes § 8-26 for such a hearing. Adequate notice is a jurisdictional issue that is a “prerequisite to any valid and effective action by an administrative tribunal.” Edelson v. Zoning Commission, 2 Conn. App. 595, 599, 481 A.2d 421 (1984). Thus, even if the hearing on the resubdivision application was the appropriate course, the statutory notice requirements for such a hearing were not met and the commission was without jurisdiction to take any action on the resubdivision application. Id.

Action taken by an administrative agency in excess of its statutory authority is void and without legal effect. Moscowitz v. Planning & Zoning Commission, 16 Conn. App. 303, 313, 547 A.2d 569 (1988). The action of the defendant was void for the four reasons stated above. Each of those reasons jurisdictionally voids the approval of the resubdivision application. This court should not uphold the dismissal of a duly filed and lawful appeal based on a subsequent action of the defendant planning commission that was void ab initio. The appeal should be heard on its merits because relief can be granted and mootness does not exist.

       A resubdivision approval is required pursuant to Sec. 1.04 of the subdivision regulations of the city of Bristol when there is a “change in a map of an approved . . . subdivision ... if such change (a) affects any street layout shown on such maps . . . .” The resubdivision involved the moving of the cul-de-sac about twenty-five feet north of its subdivision location; there was also minor adjustment of property lines in connection with the street shift. The requirement for resubdivision approval is not limited to those situations in which one or more of the lots have been conveyed after the approval.

       Whether the defendant had the statutory authority to approve a resubdivision, and whether the resubdivision hearing required a new wetlands report, and whether the hearing was properly noticed, are not the subject of this appeal.


text:
    Diane Busa v. Anthony Busa, Jr.
    (8833)
    O’Connell, Noecott and Landau, Js.
    Argued November 6, 1990
    decision released April 16, 1991

      Rebecca A. Lee, law student intern, with whom was Patricia Kaplan, for the appellant (plaintiff).

      Raymond Desautels III, law student intern, with whom was Thomas F. Gudsnuk, for the appellee (named defendant).

      John P. Fracassini, for the appellees (intervening defendants).

      Jackale N. Williams, for the minor children.
   Norcott, J.

In this action, the plaintiff appeals from the order of the state trial referee, acting as the court, awarding custody of her two minor children to their paternal grandparents. The plaintiff claims that the court failed to apply the presumption created by General Statutes § 46b-56b, which provides that “[i]n any dispute as to the custody of a minor child involving a parent and a nonparent, there shall be a presumption that it is in the best interest of the child to be in the custody of the parent, which presumption may be rebutted by showing that it would be detrimental to the child to permit the parent to have custody.”

The following facts are relevant to the disposition of this appeal. On July 1, 1983, the plaintiffs marriage to the defendant Anthony Busa, Jr., was dissolved. At that time, custody of the couple’s two minor children was awarded to the plaintiff. On August 24,1984, and January 22,1985, the plaintiff, who wanted to attend college in Boston, Massachusetts, entered into a written agreement with her ex-husband’s parents, the defendants Anthony Busa, Sr., and Beverly Busa. The agreement gave them temporary custody of the children until the plaintiff moved the court for their return. The grandparents also agreed to surrender custody of the children if and when the plaintiff made such a motion. On February 25,1985, the court, McKeever, J., modified its custody order to reflect the terms of this agreement.

The plaintiff, now remarried and living in South Carolina, moved for the return of the children to her custody on January 11,1989. In her motion, the plaintiff claimed that she had completed her education and was now able to care for her children. The defendant Anthony Busa, Jr., filed an objection to the plaintiffs motion and his parents subsequently entered the case as defendants. After a hearing, the court, O’Sullivan, J., denied the plaintiff’s motion in a memorandum of decision dated January 3, 1990.

In its memorandum of decision, the trial court concluded that “the test of the best interests of the children requires that the children continue to live with the defendant’s parents.” The plaintiff now claims that this statement clearly shows that the trial court applied an incorrect legal standard because it failed specifically to consider and either to accept or reject the presumption created by General Statutes § 46b-56b. We agree.

General Statutes § 46b-56 (b) provides that “[i]n making or modifying any order with respect to custody or visitation, the court shall be guided by the best interests of the child . . . .” In 1985, the legislature enacted what is now General Statutes § 46b-56b, which creates a presumption, in custody disputes between a parent and a nonparent, that it is in the best interest of the child to be in the custody of the parent. This presumption can be rebutted only by a showing that it would be detrimental to the child to permit the parent to have custody. General Statutes § 46b-56b.

Although § 46b-56b does not expressly require the trial court to make a specific finding either accepting or rejecting the presumption, Practice Book § 4059 mandates that the court include in its decision its conclusion as to each claim of law raised by the parties. The rebuttal of the statutory presumption is clearly an issue in this case, and the trial court’s failure to address the presumption in its memorandum of decision constitutes noncompliance with this Practice Book section. When read with Practice Book § 4059, therefore, General Statutes § 46b-56b implicitly requires the trial court to articulate whether the presumption was properly rebutted before awarding custody to a nonparent. That statute was designed to protect both parents and children, yet it accomplishes nothing if it is construed to require only a mental exercise by the court with no obligation to disclose a factual basis for giving a non-parent custody.

In addition, the trial court’s refusal to articulate its ruling does not advance the children’s best interests in this case. The “best interests” standard remains the ultimate basis of a court’s custody decision. Perez v. Perez, 212 Conn. 63, 561 A.2d 907 (1989). Despite this, the trial court effectively limited appellate review of its decision by refusing to accept or reject the statutory presumption and to state its reasons therefor in its memorandum of decision. This was clearly not in the best interests of the children. Therefore, the trial court’s memorandum of decision was clearly lacking in that it failed to state whether the presumption was properly rebutted before awarding custody to the paternal grandparents.

The case is remanded to the trial court with direction to articulate its ruling in accordance with this opinion. See Practice Book § 4061.

In this opinion the other judges concurred.

       On appeal counsel for the children joined counsel for the plaintiff in challenging the trial court’s ruling.

       Any confusion as to the standard of law applied by the trial court could have been alleviated through the granting of a motion for articulation. Practice Book § 4051. In fact, such a motion was made by counsel for the minor children but was denied by the trial court, which refused to articulate its ruling.

       Practice Book § 4061 empowers this court, when it “deems necessary to the proper disposition of the cause . . . [to] remand the case for a further articulation of the basis of the trial court’s factual findings or decision.” See also Bird Electron Beam Corporation v. Gamage, 11 Conn. App. 67, 72, 526 A.2d 1 (1987).


text:
    Edward Fenn v. Planning and Zoning Commission of the Town of Seymour
    (9276)
    Daly, Noecott and Foti, Js.
    Argued January 14
    decision released April 16, 1991

      Richard P. Gilardi, with whom was Richard S. Bruchal, town attorney, for the appellants (named defendant et al.).

      Joseph E. Sakai, for the appellee (plaintiff).
   Norcott, J.

This is an appeal from the judgment of the trial court sustaining an appeal by the plaintiff property owner, Edward Fenn, from the action of the defendant Seymour planning and zoning commission denying him a change of zone. The commission and the defendant neighboring property owners have joined in the present appeal, claiming, in essence, that the trial court exceeded its authority and wrongfully substituted its opinion for that of the commission.

The facts necessary to the understanding of this case are not in dispute. This appeal arises out of the commission’s denial, for the second time, of a petition to change the designation of a .678 acre parcel of land located on a residentially zoned street, designated R-15, to a multidwelling townhouse zone, R-TH. This piece of land adjoins a twenty-five acre parcel that is zoned R-TH on which townhouses may be built.

In 1975, the commission designated a large tract of land located on Bank Street in Seymour as a townhouse district. The tract was mushroom shaped with twenty-five acres landlocked except for a stem shaped parcel 130 feet wide fronting Bank Street, which provided an obvious access to the larger tract. Initially, a single family owned this entire tract.

In 1985, the subsequent owners of this property sold a major portion of the parcel fronting Main Street to commercial developers; they contracted to sell the rest to the plaintiff for townhouse development. The contract for the sale of this property included a large 24.5 acre parcel zoned R-TH and the .678 acre lot which is the subject of the present appeal, zoned R-15 and located along a residential street, Woodside Avenue. The sale did not include the 130 foot lot fronting Bank Street.

In 1986, upon application by the owners of the 130 foot parcel fronting Bank Street, a 100 foot section of this land was rezoned from “Townhouse District” to “Commercial District.” The owner immediately sold this 100 foot piece to a commercial group for the construction of a commercial building. The owner retained the remaining thirty foot wide parcel, together with a twenty foot wide easement, which still provided direct access to the larger twenty-five acre tract.

At this time, the owner and Fenn applied to the planning and zoning commission for a change of zone to R-TH for the residentially zoned .678 acre parcel. Their intent was to use the property as an access to the larger twenty-five acre parcel. The commission denied the application reasoning that to grant it (1) would create “spot zoning” and (2) would not be in conformance with the residential character of Woodside Avenue. Fenn did not appeal. Subsequently, Fenn submitted a townhouse site plan for the construction of 120 townhouse units to the Seymour zoning board of appeals. The site plan reflected that access to the twenty-five acre lot would be via a road over the .678 acre piece of property. The board approved the site plan along with several variances. On appeal from the board’s order, the trial court upheld the variances but sustained the appeal and declared the site plan approval a nullity because the site plan included land that was not zoned R-TH. Thereafter, in June, 1988, Fenn finalized the purchase of the twenty-five acre parcel of land but did not purchase the portion of land that was still zoned residential and opened onto Bank Street.

On August 26,1988, Fenn again applied to the planning and zoning commission seeking a zone change to R-TH for the .678 acre parcel which he sought once again to use as an access to the twenty-five acre lot. After holding extensive hearings on November 10 and December 15, 1988, and taking a walking tour of the site, the commission denied the application because of (1) its previous denial of a similar request on the basis of nonconformity to the residential character of Wood-side Avenue and the lack of a subsequent change in the residential character, and (2) its interpretation of § 12.2 (A) of the Seymour zoning regulations. From that decision, Fenn appealed to the trial court which sustained the appeal, concluding that “the [commission] should not have applied the restrictive ‘change of condition’ rule to its vote. It should have considered the whole picture in acting in its legislative capacity. Its failure to do so was arbitrary, illegal and an abuse of its discretion.” The court also concluded that, since the .678 acre parcel was going to be used only for access and not for townhouse development, § 12.2 (A) did not apply to it. The defendants appeal from the decision of the trial court.

The defendants rest their appeal on their claims that the trial court (1) substituted its judgment for that of the commission, and (2) wrongfully sought and found an unexpressed intent in § 12.2 of the zoning regulations that is clear and unambiguous on its face. We agree.

The standards governing judicial review in zoning appeals are well settled. A court cannot substitute its judgment for the liberal discretion accorded to local zoning authorities in the exercise of their prescribed legislative powers. Burnham v. Planning & Zoning Commission, 189 Conn. 261, 266, 455 A.2d 339 (1983). On appeal, the court may disturb that decision only where the local authority has acted illegally or arbitrarily or has abused its discretion. Frito-Lay, Inc. v. Planning & Zoning Commission, 206 Conn. 554, 573, 538 A.2d 1039 (1988). “The courts allow zoning authorities this discretion in determining the public need and the means of meeting it, because the local authority lives close to the circumstances and conditions which create the problem and shape the solution. Stiles v. Town Council, 159 Conn. 212, 219, 268 A.2d 395 (1970).” Burnham v. Planning & Zoning Commission, supra. When a trial court reviews a decision made by an administrative body in its legislative capacity, the court must not retry the case. “Conclusions reached by the commission must be upheld by the trial court if they are reasonably supported by the record.” Burnham v. Planning & Zoning Commission, supra, 265. Applying these standards to the present case, we conclude that the trial court improperly determined that the commission’s decision was illegal, arbitrary and an abuse of its discretion.

The commission first denied Fenn’s application for a zone change for the .678 acre parcel in 1986, deciding that to grant the change would be to allow impermissible spot zoning. See Kimball v. Court of Common Council, 148 Conn. 97, 101, 167 A.2d 706 (1961). In 1988, upon reapplication by Fenn for the same zone change, the commission found that there had been no substantial change in the circumstances present when it had denied Fenn’s application in 1986. Specifically, the commission found that no substantial change had occurred in the residential character of the area and that the concerns it had raised in 1986 remained viable. These concerns included the impact on traffic and the fact that, despite his representations to the contrary, Fenn could build townhouses at his own discretion in the newly zoned lot. The plaintiff now urges us to agree with the trial court’s finding that the commission’s reasoning was arbitrary, illegal and abusive of its discretion. This we cannot do.

An administrative body, acting in a legislative capacity, is not bound by the general rule that prohibits it from reversing an earlier decision without evidence of a change in conditions. Morningside Assn. v. Planning & Zoning Board, 162 Conn. 154, 158, 292 A.2d 893 (1972); Loh v. Town Plan & Zoning Commission, 161 Conn. 32, 39, 282 A.2d 894 (1971). Here, the commission, in the exercise of this discretion, declined to reverse itself, and, after receiving a wealth of evidence, concluded in effect that there was no substantial change in the situation from that extant in 1986. The trial court’s concern with the possible landlocking of the twenty-five acre lot is understandable. We do not agree with the court, however, that the commission did not consider “the whole picture in acting in its legislative capacity.” What we find in the record is that the court’s conclusions were contrary to those of the commission. The record, which reveals much contradictory evidence concerning traffic patterns in the area, the plaintiff’s self-created dilemma, and the viability of various accesses to the twenty-five acre lot, belies the finding of the trial court that the commission did not consider the entire picture. The action of the trial court was tantamount to an impermissible substitution of its judgment for that of the commission. See Burnham v. Planning & Zoning Commission, supra, 266.

Furthermore, in making its decision regarding a zone change, a zoning agency must consider the general public welfare inherent in the comprehensive zoning development plan rather than the individual benefit of one petitioner. See Kimball v. Court of Common Council, supra. The record here evinces that the commission acted with the intention of promoting the best interests of the community and that its actions were in harmony with its regulations and the comprehensive plan. See Morningside Assn. v. Planning & Zoning Board, supra, 162. As such, its actions cannot be deemed arbitrary or illegal. Inherent in both the 1986 and the 1988 denials of Fenn’s applications for a zone change is the commission’s finding that to allow the change would create spot zoning. “Spot zoning has been defined as ‘a provision in a zoning plan or a modification in such a plan, which affects only the use of a particular piece of property or a small group of adjoining properties and is not related to the general plan for the community as a whole.’ Maltbie, ‘The Legal Background of Zoning,’ 22 Conn. B.J., pp. 2, 5.” Kimball v. Court of Common Council, supra, 102.

The trial court here also concluded that the commission had misinterpreted its own regulations, namely §§ 12.2 and 2-1, finding that those sections did not apply to a small piece of land (the .678 acre parcel) on which townhouse development was never intended to be built. The court seemed to accept the plaintiffs assertion that he would use the land only for access. It is axiomatic that courts should give deference to the construction of the ordinance by the agency charged with its enforcement. New Haven v. United Illuminating Co., 168 Conn. 478, 493, 362 A.2d 785 (1975). In the present case, the commission construed the plain language of § 12.2 and concluded that the requested zone change was not warranted. Our review supports this conclusion.

The commission here reasonably exercised its honest judgment based on all of the evidence it had heard. “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, supra, 265.

The judgment is set aside and the case is remanded with direction to render judgment dismissing the appeal.

In this opinion the other judges concurred.

       Bank Street is also commonly known as Route 67.

       The appeal from the board’s order was entitled Llewellyn v. Zoning Board of Appeals, Superior Court for the judicial district of Ansonia-Milford, Docket No. CV87-0021705S (May 3, 1988). The trial court was the same as in the present appeal.

       During the interim, Fenn had unsuccessfully submitted another site plan to the zoning board of appeals showing a different access.

       With respect to the noncompliance with the zoning regulations, the court wrote: “It is obvious that the restrictions in § 12.2 of the zoning regulations were enacted so that townhouses could be built only on a large tract of land and at a long distance from other multidwelling construction. However, the only purpose the property in question is going to be used for is an access road to the 24.557 acre piece where the townhouses were to be built. Section 12.2 does not apply to a small piece of land on which a townhouse development is not to be built. The defendant’s action in applying § 12.2 to the parcel in question is arbitrary, illegal and in abuse of its discretion.”

       Section 12.2 provides: “No tract of land shall be considered for multifamily townhouse development unless it meets the following minimum qualifying standards: (a) Tract shall consist of at least 15 contiguous acres under single ownership or control. Maximum tract would be 200 acres. No townhouse development shall be located within 1,000 feet of any other townhouse, or garden apartment development measured at nearest boundaries. . . .”
      Section 2.1 provides: “Development. Means any manmade change to improved or unimproved real estate, including but not limited to buildings or other structures, mining, dredging, filling, grading, paving, excavation or drilling operations located within the area of special flood hazard.”


author: Lavery, J.

text:
    State of Connecticut v. Phillip Anderson
    (9088)
    Dupont, C. J., Spallone and La very, Js.
    Argued November 7, 1990
    decision released April 16, 1991

      Brian M. O’Connell, for the appellant (defendant).

      Judith Rossi, assistant state’s attorney, with whom, on the brief, were John Bailey, state’s attorney, and Edward Wilson, deputy assistant state’s attorney, for the appellee (state).
   Lavery, J.

The defendant appeals from a judgment of conviction on a charge of driving while his license was under suspension in violation of General Statutes § 14-215. The conviction was based on a conditional plea of nolo contendere in accordance with General Statutes § 54-94a. The sole issue on appeal is whether an anonymous telephone tip corroborated by independent police work, under all the circumstances of this case, had sufficient indicia of reliability to provide a reasonable and articulable suspicion to warrant an investigatory stop of the defendant. We affirm the judgment of the trial court.

The following facts are pertinent to the resolution of this appeal. On September 27,1989, at 3 p.m., Commander David C. Foran, Jr., of the Glastonbury police department received an anonymous telephone call. The caller indicated that a brown Mack garbage truck, occupied by a driver and a passenger and owned by the C & R Sanitation Company, was being operated in the Wells Village area of Glastonbury. The caller informed Foran that the truck was being driven by an individual whose operator’s license was under suspension. Foran dispatched Officer Keith O’Brien to the area and relayed the specific information contained in the anonymous tip to the officer.

O’Brien drove to the area indicated by the tipster and observed a brown Mack garbage truck with C & R Sanitation markings proceeding along Harris Street in the Wells Village area. The truck was occupied by a driver and one passenger. Using the strobe lights on his cruiser, O’Brien signaled the driver to pull over. As O’Brien exited his cruiser, the defendant exited his vehicle on his own initiative, meeting O’Brien at the rear of the truck. O’Brien requested the defendant’s driver’s license and vehicle registration. The defendant produced the vehicle registration but indicated that he was unable to produce his driver’s license.

O’Brien asked the defendant if his driver’s license was suspended, and the defendant admitted that it was. O’Brien then confirmed with the motor vehicle department that the defendant’s driving privileges were suspended. O’Brien issued a motor vehicle summons to the defendant, charging him with operating a motor vehicle while his right to drive was suspended, and released him. The defendant entered a plea of not guilty and filed a motion to suppress all evidence obtained after the allegedly unconstitutional stop of the vehicle he was driving. After a hearing, the motion to suppress was denied and the defendant entered a subsequent plea of nolo contendere, reserving the right to appeal the denial of the suppression motion.

The defendant claims that the trial court was incorrect in its denial of his motion to suppress because the stop of the garbage truck was not based on a reasonable and articulable suspicion. The defendant asserts that the anonymous telephone tip, which triggered the stop, did not have the constitutionally required indicia of reliability and was not corroborated by independent police work prior to the stop.

The stop of a motor vehicle and detention of its occupant constitutes a seizure within the meaning of the fourth and fourteenth amendments to the United States constitution. State v. Martin, 2 Conn. App. 605, 611, 482 A.2d 70 (1984), cert. denied, 195 Conn. 802, 488 A.2d 457, cert. denied, 472 U.S. 1009, 105 S. Ct. 2706, 86 L. Ed. 2d 721 (1985). This is true even if the stop is limited and the resulting detention is quite brief. Delaware v. Prouse, 440 U.S. 648, 653, 99 S. Ct. 1391, 59 L. Ed. 2d 660 (1979). Such brief investigatory seizures and detentions are permitted under both the United States and the Connecticut constitutions, even in the absence of probable cause, provided the police have a reasonable and articulable suspicion that the occupants of the vehicle have engaged, are engaged, or are about to engage in criminal activity. Michigan v. Long, 463 U.S. 1032, 1049-52, 103 S. Ct. 3469, 77 L. Ed. 2d 1201 (1983); State v. Lamme, 216 Conn. 172, 184, 579 A.2d 484 (1990); State v. Carter, 189 Conn. 611, 617, 458 A.2d 369 (1983). The purpose of such a detention is to maintain the status quo while investigating the circumstances that give rise to the suspicion of criminal wrongdoing. See Adams v. Williams, 407 U.S. 143, 146, 92 S. Ct. 1921, 32 L. Ed. 2d 612 (1972); State v. Carter, supra, 618. The United States Supreme Court has held that in situations where police have a reasonable and articulable suspicion that a motorist is unlicensed or that an automobile is not registered, stopping a motor vehicle and detaining the operator in order to check his driver’s license and registration is not unreasonable under the fourth amendment. Delaware v. Prouse, supra, 663.

What constitutes a reasonable and articulable suspicion depends on the totality of the circumstances. State v. Aillon, 202 Conn. 385, 399, 524 A.2d 555 (1987); State v. Aversa, 197 Conn. 685, 690, 501 A.2d 370 (1985). The determination of whether a specific set of circumstances provides a police officer with a reasonable and articulable suspicion of criminal activiity is a question of fact for the trial court and is subject to limited appellate review. State v. Martin, supra, 612A. Thus, an appeal challenging the factual basis of the trial court’s decision requires only that we determine, in light of the record taken as a whole, whether the court’s decision is supported by the evidence, or is clearly erroneous. State v. Zindros, 189 Conn. 228, 238, 456 A.2d 288 (1983), cert. denied, 456 U.S. 1012, 104 S. Ct. 1014, 79 L. Ed. 2d 244 (1984); Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).

In reviewing the police officer’s actions in this case, we must determine, first, whether the stop was justified at its inception and whether the ensuing police response was “reasonably related in scope to the circumstances which justified the interference in the first place.” Terry v. Ohio, 392 U.S. 1, 19-20, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). This analysis requires our examination of the facts available to the police officer and any rational inferences derived therefrom. State v. Aillon, supra.

The trial court found that the stop was initiated by an anonymous tip. The facts contained in that tip were specific with regard to time, location of the truck, and the alleged offense. The tip also provided a detailed description of the truck, including its markings, make and number of occupants.

The trial court also found that, when the officer arrived in the area indicated by the tip, he made independent observations confirming that every detail of the tip was accurate and the information was current. The officer’s ability to make an empirical confirmation that the details of the anonymous tip were accurate provided a reasonable basis for the suspicion that the truck was being driven by an operator without a license. This reasonable suspicion was sufficient to allow the officer to proceed with a minimally intrusive stop to determine if the operator’s driving privileges had been suspended. The brief and limited stop provided the least intrusive means of determining whether the scope of the investigation should be expanded.

The investigative stop was based on information that provided a substantial basis for a suspicion and not an inarticulable hunch. The officer’s actions pass constitutional muster because the stop does not represent the kind of spot check executed at the unbridled whim of law enforcement officials that violates fourth amendment protection. Delaware v. Prouse, supra, 661.

When law enforcement officials corroborate the details of an anonymous informant’s tip, the tip can give rise to a reasonable articulable suspicion. Alabama v. White, 496 U.S. 325, 330-31, 110 S. Ct. 2413, 110 L. Ed. 2d 301 (1990); United States v. Alvarez, 899 F.2d 833, 837 (9th Cir. 1990); United States v. Rodriguez, 835 F.2d 1090, 1092 (5th Cir. 1988).

In United States v. McClinnhan, 660 F.2d 500, 502 (D.C. Cir. 1981), the D.C. Circuit Court held that an anonymous tip can provide sufficient reasonable suspicion when the tip was corroborated in every significant detail by prestop surveillance. The McClinnhan court noted that it is possible for anyone with a grudge to fabricate a tip, the neutral details of which lack the facial indicia of reliability. Nevertheless, when an officer’s suspicions are corroborated by prestop surveillance confirming those details, an investigative detention of the suspect is justified. Id., 502-503.

In Alvarez, an anonymous tip provided police officers with a description of a man in a motor vehicle parked behind a bank. The anonymous informant told police that the man intended to rob the bank. After several minutes of police surveillance the vehicle departed the bank when one of the police cruisers passed within the line of sight of the driver. The police pulled the vehicle over and conducted a frisk of the defendant which yielded a handgun. United States v. Alvarez, supra, 835.

Alvarez argued that the activities observed by the police were innocent and not probative of criminal activity. Id., 838. The Alvarez court held that although the activity when taken alone might seem innocent, when viewed in light of the tip and other circumstances such activity appears highly suspicious and may provide the basis for a reasonable suspicion. Id. The court concluded that the fact that the officers themselves did not actually observe criminal activity was irrelevant under the circumstances because the officers had a particularized and objective basis for making the investigatory stop of Alvarez’ vehicle. Id.

In the recent Supreme Court case of Alabama v. White, supra, the police received an anonymous telephone tip indicating that White would be leaving a particular apartment at a particular time in a particular vehicle, that she would be going to a particular motel and that she would be in possession of cocaine. They immediately proceeded to the apartment building where they saw a vehicle matching the caller’s description. The officers observed White leaving the building and entering the vehicle. They followed her along the most direct route to the motel, and stopped her vehicle just short of the motel. A consensual search of the vehicle revealed marihuana and, after White was arrested, cocaine was found in her purse.

The White court held that the anonymous tip, as corroborated by independent police work, exhibited sufficient indicia of reliability to provide a reasonable suspicion to make the investigatory stop. Although the police did not verify every detail of the tip, the fact that the tip predicted White’s future behavior was corroborative enough to allow the police to believe that the caller was reliable and informed.

In considering the anonymous tip before us on its merits, we must determine if the tip bears sufficient indicia of reliability to support the stop by the police. It is clear that the tip provided a very specific description of the make, markings, and color of the garbage truck. It located the truck in Wells Village and indicated that there were two occupants in the cab. All the details of the tip were corroborated.

In United States v. Hensley, 469 U.S. 221, 105 S. Ct. 675, 83 L. Ed. 2d 604 (1985), the United States Supreme Court held that the determination of whether an investigatory stop is constitutional requires the balancing of the nature of the intrusion upon personal security against the importance of the governmental interest inducing that intrusion. Our Supreme Court has applied this standard in Connecticut in State v. Mitchell, 204 Conn. 187, 196, 527 A.2d 1168, cert. denied, 484 U.S. 927, 108 S. Ct. 293, 98 L. Ed. 2d 252 (1987).

The state has a compelling interest in ensuring that only qualified drivers operate vehicles on public roads. Delaware v. Prouse, supra, 658. The only immediate way to determine the identity of the driver and whether he possessed a valid license was to stop the truck. “The reasonableness of the officer’s decision to stop a suspect does not turn on the availability of less intrusive investigatory techniques.” United States v. Sokolow, 490 U.S. 1, 11, 109 S. Ct. 1581, 104 L. Ed. 2d 1 (1989). The degree of intrusion was minimal and the defendant got out of the cab on his own initiative. He was not searched or taken into custody. The officer having a reasonable and articulable suspicion acted within the scope of his authority under General Statutes § 14-217 to determine the defendant’s identity and operator status. In balancing the state’s compelling interest against the minimal intrusion we conclude that no fourth amendment violation has occurred.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 14-215 provides in relevant part: “operation while registration or license is refused, suspended or revoked, (a) No person to whom an operator’s license has been refused, or whose operator’s license or right to operate a motor vehicle in this state has been suspended or revoked, shall operate any motor vehicle during the period of such refusal, suspension or revocation. No person shall operate or cause to be operated any motor vehicle, the registration of which has been refused, suspended or revoked, or any motor vehicle, the right to operate which has been suspended or revoked.”

       General Statutes § 54-94a provides in relevant part: “conditional nolo CONTENDERE PLEA. APPEAL OF DENIAL OF MOTION TO SUPPRESS OR DISMISS. When a defendant, prior to the commencement of trial, enters a plea of nolo contendere conditional on the right to take an appeal from the court’s denial of the defendant’s motion to suppress evidence based on an unreasonable search or seizure, motion to suppress statements and evidence based on the involuntariness of a statement or motion to dismiss, the defendant after the imposition of sentence may file an appeal within the time prescribed by law. The issue to be considered in such an appeal shall be limited to whether it was proper for the court to have denied the motion to suppress or the motion to dismiss. A plea of nolo contendere by a defendant under this section shall not constitute a waiver by the defendant of non-jurisdictional defects in the criminal prosecution.”

       In his brief, the defendant seeks our review of the warrantless arrest in the absence of probable cause. The arrest was made after the officer had verified that the defendant’s license was under suspension. "When the arrest was made, the police officer had established probable cause sufficient to arrest the defendant.

       General Statutes § 14-217 provides in relevant part: “operator to give name and show or surrender license, registration and no-fault insurance identification card. No person who is operating or in charge of any motor vehicle, when requested by any officer in uniform, by an agent authorized by the commissioner who presents appropriate credentials . . . or refuse, on demand of such officer, agent ... to produce his motor vehicle registration certificate, operator’s license and any no-fault automobile insurance identification card for the vehicle issued pursuant to section 38a-364 or to permit such officer, agent or such other person to take the operator’s license, registration certificate and any such no-fault insurance identification card in hand for the purpose of examination, or refuse, on demand of such officer, agent or such other person, to sign his name in the presence of such officer, agent or such other person.”


author: Spallone, J.

text:
    Deann K. Seymour v. Lynne M. Carcia
    (8812)
    Spallone, Landau and Heiman, Js.

      Argued January 10
    decision released April 16, 1991

      Philip J. O’Connor, with whom were Steven Seligman and, on the brief, Lester Katz, for the appellant (defendant).

      Kathryn Calibey, with whom was John Houlihan, for the appellee (plaintiff).
   Spallone, J.

The plaintiff brought this action to recover for injuries sustained in a motor vehicle accident. The jury returned a verdict in favor of the plaintiff in the amount of $176,081, which the defendant considered excessive, contrary to law, and against the evidence. The defendant consequently appealed from the trial court’s decision accepting the verdict.

On appeal, the defendant claims that the trial court (1) improperly accepted the verdict because the evidence was insufficient to support the jury’s award of future economic damage, (2) improperly submitted the issue of punitive damages to the jury, (3) improperly refused to instruct the jury regarding apportionment of negligence, and (4) improperly accepted the verdict because it was excessive. We affirm the judgment of the trial court.

The jury could have reasonably found the following facts. On March 6, 1987, the defendant visited a restaurant with some friends. During the ensuing three hours at the restaurant, the defendant drank from four to ten twelve ounce glasses of beer. The defendant then left the restaurant, and drove her car west on Route 44 in Avon. The plaintiff, a passenger in a car driven by Joseph Anastasio, was being driven in an easterly direction on Route 44 at about forty to forty-five miles per hour. The speed limit on Route 44 was forty-five miles per hour. As Anastasio’s automobile entered an intersection, the defendant made a left turn, crossed into the eastbound lane and collided with Anastasio’s automobile.

As a result of the collision, the plaintiff suffered injury to the cervical, dorsal and lumbosacral regions of her spine. She was treated for those injuries continually from the time of the accident to the time of the trial. Expert testimony established that the plaintiff has a 15 percent permanent disability of the lumbosacral region.

The jury awarded the plaintiff $8125 for past economic loss, $68,372 for future economic loss, $3750 for past noneconomic loss, $54,000 for future noneconomic loss, and $41,834 in fees and costs, for a total award of $176,081. The court accepted the verdict and denied the defendant’s motion to set aside. The court later granted the defendant’s motion to open the judgment for the purpose of effecting a reduction in the verdict and rendered a corrected judgment in the amount of $172,956. The defendant then brought this appeal.

The first issue raised by the defendant is whether the trial court improperly accepted the verdict because there was insufficient evidence to support the jury’s award for future economic loss. Future economic losses include, inter alia, all reasonable and adequately proven future medical expenses, such as the reasonable expense of physicians, medication, and medical appliances, and loss of future earning capacity. The defendant’s claim is based primarily on the contention that the evidence presented did not prove future economic loss with any degree of certainty and therefore impermissibly left the jury to base its award on surmise and conjecture. We disagree.

“ Tn awarding future medical expenses, a jury’s determination must be based upon an estimate of reasonable probabilities, not possibilities. Jerz v. Humphrey, 160 Conn. 219, 224, 276 A.2d 884 (1971). Such evidence must be given the most favorable construction in support of the verdict of which it is reasonably capable. . . .’ Reilly v. DiBianco, 6 Conn. App. 556, 575, 507 A.2d 106, cert. denied, 200 Conn. 804, 510 A.2d 192, 193 (1986).” (Citations omitted.) Rogers v. Delfino, 13 Conn. App. 725, 729, 539 A.2d 156 (1988). It is not necessary that the amount of the loss be established with precision as long as the evidence affords a basis for a reasonable estimate by the jury. Delott v. Roraback, 179 Conn. 406, 411, 426 A.2d 791 (1980).

The defendant asserts that damages for future medical expenses may be established only through competent medical expert testimony. She draws an analogy between the evidence required in the context of medical causation, where medical expert testimony is required to show that the act caused the plaintiffs injuries, and the evidence required to prove future medical expenses. See, e.g., Grody v. Tulin, 170 Conn. 443, 449, 365 A.2d 1076 (1976); Bates v. Carroll, 99 Conn. 677, 679, 122 A. 562 (1923). This analogy is inapplicable. Evidence to support a claim of future economic damage is sufficient if it allows the jury an opportunity to appraise the plaintiff’s condition and the future consequences of that condition. Boland v. Vanderbilt, 140 Conn. 520, 524, 102 A.2d 362 (1953).

The plaintiff’s medical expert and treating physician testified that the plaintiff had a 15 percent permanent disability of her back. He further testified that he had “no doubt” that the plaintiff will require medical care in the future. Examination of billing statements received into evidence without objection reveals that the plaintiff incurred medical expenses in the amount of $874.96 in 1989, almost two years after the injury occurred. The parties stipulated that the plaintiff’s life expectancy was 54.9 years. The plaintiff testified that her injuries made driving difficult. The plaintiff’s medical expert testified that he had recommended that the plaintiff use an orthopedic car seat costing $2372.33. The parties do not direct our attention to the expected useful life of the car seat, but we assume the jury assigned a reasonable period. We also recognize that the jury could have reasonably determined that the plaintiff would need to replace such a car seat from time to time. If the jury considered these two factors alone, it could have quite reasonably concluded that the plaintiff would incur expenses for both medical treatment and medical supplies, including an annual cost for the car seat. Considering the plaintiff’s life expectancy of 54.9 years, and without regard to any loss of the plaintiff’s earning capacity (on which there was some evidence), we cannot say that the resulting figure was not a reasonable estimate by the jury. Under the circumstances present in this case, the trial court did not abuse its discretion by refusing to grant the defendant’s motion to set aside the verdict.

The defendant’s next claim, that the trial court improperly submitted the issue of punitive damages to the jury, is raised in two parts. The first is that the trial court improperly submitted the issue of punitive damages to the jury because the pleadings did not claim such damages. The second is that the evidence of recklessness was insufficient as a matter of law to support an award of punitive damages.

“To furnish a basis for recovery of [punitive] damages, the pleadings must allege and the evidence must show wanton or wilful malicious misconduct, and the language contained in the pleadings must be sufficiently explicit to inform the court and opposing counsel that such damages are being sought. . . . ‘A wilful or malicious injury is one caused by design. Wilfulness and malice alike import intent. . . . [Its] characteristic element is the design to injure either actually entertained or to be implied from the conduct and circumstances.’ Sharkey v. Skilton, 83 Conn. 503, 507-508, 77 A. 950 (1910). . . . Wanton misconduct is reckless misconduct. Menzie v. Kalmonowitz, 107 Conn. 197, 199, 139 A.2d 698 (1928). Tt is such conduct as indicates a reckless disregard of the rights or safety of others or of the consequences of the action.’ Bordonaro v. Senk, 109 Conn. 428, 431, 147 A.2d 136 (1929).” (Citations omitted.) Markey v. Santangelo, 195 Conn. 76, 77-78, 485 A.2d 1305 (1985). Punitive damages need not be explicitly alleged in the body of the complaint or included in the claims for relief as long as the plaintiff’s pleading gives the defendant sufficient notice that she is being charged with aggravated conduct rather than with mere negligence. Markey v. Santangelo, supra, 78.

The second count of the complaint alleged that the plaintiffs “injuries and losses were caused by the reckless indifference to the rights of others on the part of the defendant.” This claim gave the defendant sufficient notice that she was being charged with “aggravated conduct,” rather than with mere negligence, and accordingly satisfied the pleading requirement. Id.

As to the evidence presented, in determining whether the defendant’s conduct evidenced a reckless indifference to the rights of others, a jury may properly consider evidence of voluntary intoxication while knowing of the necessity to drive as an “aggravating circumstance.” Infeld v. Sullivan, 151 Conn. 506, 508, 199 A.2d 693 (1964); Jack v. Scanlon, 4 Conn. App. 451, 455-56, 495 A.2d 1084, cert. dismissed, 197 Conn. 808, 499 A.2d 59 (1985). A reckless disregard for the safety of others or for the consequences of one’s acts may be inferred from the combined acts of voluntary intoxication and operating a motor vehicle. Nast v. Lockett, 312 Md. 343, 362-63, 539 A.2d 1113 (Md. 1988). “As the degree of impairment by the voluntary consumption of alcohol increases, the need for other aggravating circumstances lessens, and vice versa.” Id., 362.

We do not intend to imply, nor do we formulate a rule, that holds that a driver who is guilty of negligence in the operation of a motor vehicle and who has been drinking alcoholic beverages is automatically exposed to the payment of punitive damages. The issue that must always be resolved by the trier of fact in these situations is whether the facts as adduced, including the consumption of alcohol, permit a rational inference that the driver evinced a reckless indifference to the rights of others in his operation of the motor vehicle.

James O’Brien, a physician and pharmacologist, testified for the plaintiff. He stated that the defendant had a blood alcohol level of .189 percent when he tested her after the accident, indicating that she had consumed at least ten twelve ounce bottles of beer in the three hours before the accident. He testified that her blood alcohol level was two and one-half times greater than the level at which it would be safe to drive a car. He stated that her degree of intoxication was such that her judgment and concentration would be impaired, her reflexes and response time would be slower, she would not be as aware of danger and would be more likely to take risks while driving. Under these circumstances, we cannot say that the jury’s award of punitive damages was not supported by sufficient evidence.

The defendant’s next claim is that the trial court improperly refused to instruct the jury regarding the apportionment of negligence. At the close of evidence the defendant requested that the judge include in the special verdict form the following question. “If you find the defendant Lynne M. Carcia liable, what percentage of negligence do you attribute to the plaintiff or any other person in relation to the negligence of Lynne M. Carcia?” This request was made pursuant to General Statutes § 52-572h (d), which allows for the apportionment of damages among all persons whose negligent actions were a proximate cause of the damage. The trial court ruled that there was insufficient evidence presented from which the jury could find negligence on the part of Anastasio or the plaintiff, and, therefore, refused to submit that question to the jury.

The defendant offers two pieces of evidence to support his claim that there was sufficient evidence presented for the jury to conclude that Anastasio was negligent. The first is that Anastasio’s testimony regarding the movement of the defendant’s vehicle is claimed to be inconsistent with the plaintiffs testimony, thus indicating that Anastasio failed to keep an adequate lookout. The second is that bruises sustained by the plaintiff and caused by the seatbelt could indicate excessive speed on the part of Anastasio.

“The trial court has a duty not to submit any issue to the jury upon which the evidence would not support a finding. Batick v. Seymour, 186 Conn. 632, 641, 443 A.2d 471 (1982).” Souper Spud, Inc. v. Aetna Casualty & Surety Co., 5 Conn. App. 579, 584, 501 A.2d 1214 (1985), cert. denied, 198 Conn. 803, 503 A.2d 172 (1986). We agree with the trial court’s conclusion that the alleged inconsistency presented by the defendant is not sufficient to support a finding that Anastasio operated his vehicle in a negligent manner.

The defendant also asserts that the bruises caused by the plaintiff’s seatbelt could have indicated to the jury that Anastasio was speeding. There was no evidence presented, however, regarding the relationship between the bruises and Anastasio’s driving. Inference from facts cannot be the result of guess, conjecture or speculation. See Toomey v. Danaher, 161 Conn. 204, 211, 286 A.2d 293 (1971). Accordingly, the trial court properly withheld this issue from the jury.

The defendant’s final claim is that the verdict was excessive. The assessment of damages is peculiarly within the province of the jury and its determination should be set aside only when the verdict is plainly excessive and exorbitant. Szivos v. Leonard, 113 Conn. 522, 525, 155 A. 637 (1932). The test to be applied is whether “the award of damages falls somewhere within the necessarily uncertain limits of fair and reasonable compensation in the particular case, or whether the verdict so shocks the sense of justice as to compel the conclusion that the jury [was] influenced by partiality, prejudice, mistake or corruption.” Slabinski v. Dix, 138 Conn. 625, 629, 88 A.2d 115 (1952).

Under the circumstances of this case, the jury’s award cannot be said to “shock the judicial conscience” in view of the plaintiff’s life expectancy, the permanency of her functional impairment and the medical evidence that was before the jury, when viewed in the light most favorable to the plaintiff. See Mather v. Griffin Hospital, 207 Conn. 125, 139, 540 A.2d 666 (1988).

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant argues that this statute permits the apportionment of negligence to a nonparty to the lawsuit and thereby limits the recovery of the plaintiff against the defendant or defendants to their apportioned share. Because our disposition of this issue is based on the ruling of the trial court regarding the sufficiency of the evidence, we need not and do not address this claim.

       The defendant compares the following testimony in support of her position that the testimony supports an inference of negligence on the part of Anastasio:
      “Q. Did you ever notice whether [the defendant] hesitated or stopped at the signal that was there?
      “A. It appeared to me that she never stopped.
      “Q. Did she hesitate?
      “A. I couldn’t tell. She was always moving, I knew that.”
      “[Plaintiff]: Then I remember seeing the defendant’s car, it was white, and I don’t remember if, clearly, if she stopped or if she just hesitated. I remember seeing her sit there for like a brief second.”