text:
    Richard Federico et al. v. Planning and Zoning Commission of the Town of Trumbull et al.
    (2743)
    (2751)
    Dupont, C. J., Hull and Borden, Js.
    Argued October 4
    decision released November 19, 1985

      Burton S. Yaffie, for the appellant (named defendant).

      Bruce L. Levin, with whom, on the brief, was Serge G. Mihaly, for the appellants (defendant Vincent San Fillippo et al.).

      Frederick F. Ehrsam, Jr., for the appellees (plaintiffs).
   Hull, J.

In this zoning case, the defendant property owners, Vincent and Madeline San Fillippo, and the defendant planning and zoning commission of the town of Trumbull were granted certification to appeal the judgment of the trial court. That judgment sustained the plaintiffs’ appeal from the commission’s approval of a two lot subdivision of the owners’ land located on the northeasterly side of Leonard Place at the intersection of Williams Road in Trumbull. The plaintiffs’ own land abutting the property in question.

The underlying facts are not in dispute. The property consists of 1.66 acres zoned Residence A. The minimum area in such a zone is one-half acre. The owners’ application proposed resubdivision as illustrated in the appendix to this opinion. Using this creative resubdivision plan, the owners formed two lots, one fronting on a new street, Lynn Place (Lot l), and an additional lot (Lot 2) fronting on Lynn Place along a strip of land extending to Leonard Place. The commission approved the application and the plaintiffs appealed that approval.

In sustaining the appeal, the court concluded that the commission approved a plan of resubdivision which did not conform either to the land subdivision regulations or to the zoning regulations of Trumbull. The court found that the layout of Lynn Place in the application is such that the block length between Lynn Place and Arrowhead Road is shorter than the 300 feet required by the land subdivision regulations. The court also found that the proposed residential use of Lot 2 would violate front yard, rear yard and frontage requirements of the zoning regulations.

The defendants raise the following claims of error by the trial court: (1) Did the court err in sustaining the appeal on the grounds that the subdivision would create a “block” which would not satisfy the requirements for block dimension in the regulations, where no “block” as defined in Westport v. Norwalk, 167 Conn. 151, 355 A.2d 25 (1974), was in fact created? (2) Even if the defendants’ application had created a new block, did the court err in sustaining the appeal for failure of the application to satisfy block dimensions, where the commission had discretion under its regulations to relax those requirements? (3) Did the court err in sustaining the appeal based on purported noncompliance with yard and frontage requirements, when such requirements relate only to the use of land (zoning) which is irrelevant and inapplicable in connection with subdivision approval (planning)? (4) Did the trial court misconstrue the regulations and commit mathematical error with respect to the defendants’ compliance with yard and frontage requirements?

The defendants admit that the block length between Lynn Place and Arrowhead Road is less than 300 feet. They claim, however, that since no “block” was created by the approval of their application, the 300 foot requirement between intersections is irrelevant. We agree.

The court’s conclusion is inconsistent with Westport v. Norwalk, supra. The plaintiffs in that case claimed that the town planning and zoning commission’s approval of the subdivision plan involved was illegal in that it violated § 3.07 of the subdivision regulations which prohibited the creation by new subdivision of blocks which were more than 1200 feet long. In responding to that argument, the Supreme Court stated: “In analyzing § 3.07 of the regulations . . . it is clear that the language clearly and unambiguously indicates the intent that § 3.07 is to be considered only when ‘new’ land in subdivisions is actually created in ‘block’ form. It does not require that all newly developed land be divided into ‘blocks.’ In this regard, the regulation is not subject to modification by construction.” (Citations omitted.) Westport v. Norwalk, supra, 162-63.

“Whether § 3.07 is relevant to the present case depends upon whether a ‘block’ has been created by the subdivision plan as submitted by [the defendant property owners]. Words used in statutes and regulations ‘are to be construed according to their commonly approved usage.’ Klapproth v. Turner, 156 Conn. 276, 280, 240 A.2d 886 [1968]. See Hartford Electric Light Co. v. Water Resources Commission, 162 Conn. 89, 100, 291 A.2d 721 [1971]; State v. Cataudella, 159 Conn. 544, 553, 271 A.2d 99 [1970]; State v. Benson, 153 Conn. 209, 214, 214 A.2d 903 [1965]. ‘Or, stated another way, statutory language is to be given its plain and ordinary meaning. State v. Taylor, 153 Conn. 72, 82, 214 A.2d 362 [1965].’ Klapproth v. Turner, supra, 280. Black, Law Dictionary (3d Ed.) defines ‘block’ as ‘[a] square or portion of a city or town inclosed by streets .... The platted portion of a city surrounded by streets.’ Webster, Third New International Dictionary defines the word, inter alia, as ‘a usu. rectangular space (as in a city) enclosed usu. by streets but sometimes by other bounds (as rivers or railroads).’ See Berndt v. City of Ottawa, 179 Kan. 749, 298 P.2d 262 [1956]; Sports Center, Inc. v. City of Wichita, 176 Kan. 84, 269 P.2d 399 [1954]; Harrison v. People ex rel. Boetter, 195 Ill. 466, 63 N.E. 191 [1902]; Block, Words & Phrases (Perm. Ed.), pp 781-89, and cases cited therein.

“In the present case, the subdivision map does not depict the subdivision as creating any ‘block’ as intended by § 3.07 of the regulations in the light of the commonly approved meaning of the word. The tract of land in question is bounded by streets only on three sides—on the east by Cranbury Road, on the north by Partrick Avenue and on the west by Wolfpit Avenue. To the south the tract is bounded by privately-owned property which is not owned or controlled by [the defendant property owners]; nor does Regency Drive, the proposed new street running approximately 2100 feet from Partrick Avenue to Wolfpit Avenue, enclose any of the tract so as to create a block. No block having been created, regulation § 3.07 requiring ‘blocks,’ only if in fact created, to be a certain minimum width and minimum and maximum length, is irrelevant to the present case and could not, a fortiori, be violated as the plaintiffs contend.” Westport v. Norwalk, supra, 163-64.

The plaintiffs attempt in vain to distinguish Westport by pointing out that the Norwalk regulation is devoid of any reference to a stated purpose such as reducing the number of intersections, as is contained in the Trumbull regulations. This distinction is immaterial in face of the Supreme Court’s four square definition of “block.” The creation of Lynn Place and the resubdivision of the remaining land into two lots did not create a block. Westport v. Norwalk, supra.

In view of this conclusion we do not consider the defendants’ second claimed error concerning the commission’s power to waive the block requirements.

The defendants’ third and fourth claims of error concern the court’s conclusion that the proposed residential use of Lot 2 would violate the yard and frontage requirements of the zoning regulations. The trial court’s conclusion and the arguments of the defendants are all based on remarks of the owners’ counsel at the hearing before the commission. Those remarks concerned the possible location of a house on the lot.

The requirement of the Trumbull land subdivision regulations that a subdivision plan comply with zoning regulations is mirrored in an even more stringently drawn similar requirement in General Statutes § 8-26. Section 8-26, concerning approval of subdivision and resubdivision plans, provides, in pertinent part, that “nothing in this section shall be deemed to authorize the commission to approve any such subdivision or resubdivision which conflicts with applicable zoning regulations.” (Emphasis added.)

At the time of the trial, any claimed violations of zoning regulations were entirely speculative. Zoning concerns use; Dooley v. Town Planning & Zoning Commission, 154 Conn. 470, 472-73, 226 A.2d 509 (1967); and until residential use of the lot is attempted it cannot ordinarily be known what yard or frontage requirements might be violated. This is so under the local regulations. Even more cogently is it so under General Statutes § 8-26 which bars subdivision plans which conflict with applicable regulations. Until a building permit application is filed in the future, there are no “applicable” yard and frontage requirements.

These regulatory and statutory requirements must be read to concern zoning violations inherent in the plan itself as submitted and not potential use violations. Such requirements relate to subdivision plans which in and of themselves would violate zoning regulations. Examples of such conflicts include approval of a subdivision plan involving one-half acre lots in a one acre zone, or approval of a plan for a residential subdivision in an industrial area which prohibited such use. Inchoate violations involving the use of the lot in question, which may never occur, form no basis for a conclusion that a conflict exists between the approved subdivision plan and the zoning regulations so as to render the subdivision approval void.

There is error, the judgment is set aside and the case is remanded with direction to render judgment dismissing the plaintiffs’ appeal.

In this opinion the other judges concurred.

(See Appendix on next page.)

       The record uses the term subdivision; it appears that the San Fillippos sought a resubdivision. General Statutes § 8-18. We therefore use the term resubdivision.

       Although the trial court found both lots to be vacant, the parties agreed at argument that a residence has been built on Lot 1. We offer no opinion as to whether the tail section could properly be included as frontage for the extra Lot 2. This precise issue was not litigated or ruled on by the trial court. We take the case as the issues were framed by the parties. McCahill v. Town & Country Associates, Ltd., 185 Conn. 37, 40, 440 A.2d 801 (1981). The plaintiffs conceded at oral argument that they do not contest that Lynn Place is a street. To do so would vitiate their principal argument that the block requirement of the regulations was violated.

       Chapter V, § 8 (a), of the Trumbull land subdivision regulations provides: “Intersecting streets shall be laid out at such intervals that block lengths between street lines are not more than 1200 feet, nor less than 400 feet, except when existing conditions, in the opinion of the Commission, justify a variation from this requirement. Minimum widths of blocks shall generally be not less than 300 feet between street lines in residential areas. The long side of blocks shall face the main or more important thoroughfare to reduce the number of intersections thereon.”

       The subdivision regulation at issue in Westport v. Norwalk, 167 Conn. 151, 355 A.2d 25 (1974), provided: “[Norwalk Subdivision Regs., art. Ill § 3.07 (1968)] BLOCK WIDTH AND LENGTH: Blocks created by new subdivisions shall be at least 200 feet wide and at least 200 [feet] long but not more than 1200 [feet] long.”


source: Caselaw Access Project

author: Spallone, J.

license: Public Domain

text:
    Robert Oldread et al. v. National Union Fire Insurance Company of Pittsburgh
    (3554)
    Borden, Spallone and Daly, Js.
    Argued October 8
    decision released November 26, 1985

      John W. Lemega, with whom was Mark B. Seiger, for the appellant (defendant).

      Andrew J. O’Keefe, with whom were Maureen A. Sullivan and, on the brief, Richard J. Kenny, for the appellees (plaintiffs).
   Spallone, J.

The defendant is appealing from a judgment of the trial court rendered upon an application to compel arbitration brought pursuant to General Statutes § 52-410.

On or about February 5, 1982, the plaintiff Robert Oldread was operating a motor vehicle, with the permission of its owner, Dayco Corporation, in which the plaintiffs Jeanine and Robin Oldread were passengers. The vehicle was involved in an accident in Suffield, Connecticut, with a motor vehicle being driven by Lynne M. Markwell. The plaintiffs sustained injuries as a result of the accident and recovered the limits of the insurance policy which covered the Markwell vehicle.

The vehicle occupied by the plaintiffs was insured by the defendant in accordance with a policy, issued to the Dayco Corporation, which covered Dayco’s nationwide fleet of vehicles. The policy provided uninsured motorist coverage and contained a provision which allowed either party to the agreement to make a written demand for arbitration if the parties disagreed as to whether damages were recoverable from the operator or owner of the uninsured motor vehicle. The policy provided further that such a disagreement would be settled by a single neutral arbitrator, whose expenses would be borne equally by the parties. Unless the parties agreed otherwise, arbitration would take place in the county in which the insured lives. Local rules of law as to arbitration procedure and evidence were made applicable, and the decision of the arbitrator was to be considered binding.

By letter dated May 4,1984, the plaintiffs made written demand for arbitration. At the time of this demand, the plaintiffs were residents of the state of New Jersey. The defendant declined to submit to arbitration, and the plaintiffs sought an order “directing the defendant to proceed with arbitration” from the trial court in Connecticut.

After a hearing, the court rendered its judgment which ordered: (1) that the defendant proceed with arbitration; (2) that the arbitration take place in the state of New Jersey; (3) that the arbitration be conducted before a three-member arbitration panel, with the plaintiffs and defendant each to appoint one arbitrator and the third member of the panel to be appointed by the first two; and (4) that the arbitration take place in accordance with the laws and appropriate regulations of the state of Connecticut.

On appeal, the defendant challenged only parts (3) and (4) of the court’s judgment. At oral argument, the defendant withdrew any claim of error as to part (3), without, however, conceding its validity. The defendant’s sole claim of error is that the trial court exceeded its authority when it ordered the parties to conduct the arbitration proceedings under Connecticut law despite ordering that the arbitration was to take place in New Jersey. We agree.

The authority for arbitration must be derived from the agreement of the parties. W. J. Megin, Inc. v. State, 181 Conn. 47, 49, 434 A.2d 306 (1980). “The arbitration provision in an agreement is, in effect, a separate and distinct agreement. Courts of law can enforce only such agreements as the parties actually make.” Connecticut Union of Telephone Workers v. Southern New England Telephone Co., 148 Conn. 192, 197, 169 A.2d 646 (1961).

When a party to a written agreement for arbitration refuses or neglects to proceed with such an arbitration, the other party may make an application to Superior Court for an order directing the parties to proceed with arbitration in compliance with their agreement. General Statutes § 52-410 (a). The trial court’s authority is restricted to “granting] the order or denying] the application, according to the rights of the parties.” General Statutes § 52-410 (c). In the present action, the trial court went beyond this authority.

There is error in part, the judgment is set aside and the case is remanded with direction to render judgment as on file except that that part of the order providing that Connecticut law govern the New Jersey arbitration proceedings shall be omitted.

In this opinion the other judges concurred.

       General Statutes § 52-410 provides: “application for court order to PROCEED WITH arbitration, (a) A party to a written agreement for arbitration claiming the neglect or refusal of another to proceed with an arbitration thereunder may make application to the superior court for the judicial district in which one of the parties resides or, in a controversy concerning land, for the judicial district in which the land is situated or, when the court is not in session, to any judge thereof, for an order directing the parties to proceed with the arbitration in compliance with their agreement. The application shall be by writ of summons and complaint, served in the manner provided by law.
      “(b) The complaint may be in the following form:‘1. On. . . .,19. ., the plaintiff and the defendant entered into a written agreement for arbitration, of which exhibit A, hereto attached, is a copy. 2. The defendant has neglected and refused to perform the agreement for arbitration, although the plaintiff is ready and willing to perform the agreement. The plaintiff claims an order directing the defendant to proceed with an arbitration in compliance therewith.’
      “(c) The parties shall be considered as at issue on the allegations of the complaint unless the defendant files answer thereto within five days from the return day, and the court or judge shall hear the matter either at a short calendar session, or as a privileged case, or otherwise, in order to dispose of the case with the least possible delay, and shall either grant the order or deny the application, according to the rights of the parties.”


author: Bieluch, J.

text:
    Vilma F. Shaw v. Planning Commission of the Town of Southbury
    (3967)
    Spallone, Daly and Bieluch, Js.
    Argued October 9
    decision released November 26, 1985

      Barbara J. Hampton, with whom was Fred B. Rosnick, for the appellant (plaintiff).

      Gail E. McTaggart, for the appellee (defendant).
   Bieluch, J.

This appeal concerns the defendant’s denial of the plaintiff’s subdivision application. That denial was affirmed by the trial court. Upon our grant of certification, the plaintiff has appealed.

On October 18, 1983, the plaintiff filed an application with the defendant for approval of a subdivision plan for eight residential lots under the provisions of General Statutes § 8-25. The application was denied by the commission on January 17,1984. Pursuant to General Statutes § 8-28, an appeal was taken to the Superior Court, returnable on February 14,1984. Under the requirements of Practice Book § 257, both parties filed pretrial briefs. Although administrative appeals, which include zoning appeals, are placed on a trial list automatically by this rule, the plaintiff did file a claim for privileged trial status on account of the plaintiff’s age. This was done on August 20,1984. No trial list assigning this appeal for a hearing was ever issued by the court clerk in accordance with the requirements of Practice Book §§ 252-261, inclusive, before its disposition.

On November 15, 1984, the trial court filed a two page memorandum of decision affirming the commission’s decision. This was done sua sponte. The parties were not given a hearing. They were not given advance notice. The § 257 requirement of pretrial briefs in advance of the court hearing does “not preclude the parties from filing supplemental briefs at the time the case is heard.” They were not permitted to do that here because the memorandum of decision was summarily written without hearing. Under the rules of practice, copies of the memorandum of decision were mailed to counsel of record on November 16,1984. Practice Book § 398. This was the parties’ first knowledge that judgment on the plaintiff’s appeal was a fait accompli without a hearing or prior notice of its judicial consideration.

The plaintiff promptly filed a motion to vacate the judgment against her and to reinstate the case to the administrative appeals trial list for hearing. The grounds specified were the failure of the court to grant a hearing under General Statutes § 51-197b (a) and its failure to allow the filing of a supplemental or reply brief “at the time the case is heard” pursuant to Practice Book § 257 (a). This motion was heard on December 17,1984, at which time a supporting memorandum of law was filed by the plaintiff. The motion to vacate the judgment was denied by the court on December 21, 1984, without oral or written articulation.

The procedural history of this case is succinctly recorded in the court’s judgment file as follows: “This action, by writ and complaint, appealing the Defendant Planning Commission’s denial of Plaintiff’s application for subdivision approval, came to this Court on February 14,1984; and thence to April 10,1984, when the Court {Stoughton, J.) denied Plaintiff’s Motion for Permission to Supplement Record; and thence to July 26, 1984, when the Court (Healey, J.) denied the Plaintiffs Motion to Correct Record; and thence to the present time, when the Court (Falsey, J.) issued its Memorandum of Decision denying Plaintiffs appeal, without hearing; and thence to December 21, 1984, when the Court (Falsey, J.) denied the Plaintiffs Motion to Vacate Judgment. Whereupon it is adjudged that the decision of the Defendant Southbury Planning Commission is affirmed. By the Court, (Falsey, J.).”

The primary issue raised by the plaintiff before this court concerns her entitlement to a hearing before the trial court, including the right to present a reply to the pretrial brief of the defendant. She contends that the court violated the statutory and procedural requirements for administrative appeals, and thereby denied her the fundamental rights of our adversary system of jurisprudence. As she did in her motion to vacate the judgment in the trial court, she relies upon General Statutes § 51-197b (a) and Practice Book § 257 (a).

The defendant concedes that the statute requires a hearing in such a case, but maintains that the procedural rule for a supplemental brief at hearing is discretionary with the court. It reasons and concludes, however, as follows: “The trial court’s exercise of discretion to make its decision on the Record before the Commission and the briefs of both parties has not prejudiced the Plaintiff. Thus, the failure to provide a hearing was harmless error, if error at all, given the nature of the appeal, the submission of briefs by both parties, and the prior ruling of the trial court precluding evidence outside the Record.”

The appeal from the defendant’s ruling was taken to the Superior Court pursuant to General Statutes § 8-28. That section of the statutes, unlike § 8-8 which sets forth the procedure for appeals from zoning boards of appeal, as well as from zoning commissions and planning and zoning commissions; General Statutes § 8-9; does not specifically set forth the mode or scope of judicial review. Section 8-8 (f) states that “[t]he court, upon an appeal taken under subsection (a) of this section and after a hearing thereon, may reverse or affirm, wholly or partly, or may modify or revise the decision appealed from. . . .” A hearing in those cases is required by this provision. Although § 8-28 is silent in this regard, the provisions of General Statutes § 51-197b (a) applicable to all administrative appeals, including appeals from any municipal agency such as the planning commission here, govern in similar fashion. Under its terms “[t]he superior court, after a hearing, may reverse or affirm, wholly or partly, or may modify or revise the decision appealed from. . . .” Therefore, the opportunity for a hearing must be given to the parties in all administrative appeals.

Practice Book § 257 implements the statutory requirements for hearings in administrative appeals by creating a separate “trial list for administrative appeals” with automatic assignment in accordance with the prescribed pleading and briefing schedule. The provision of § 257 that “[t]his section shall not preclude the parties from filing supplemental briefs at the time the case is heard” allows parties to file replies to the pretrial briefs. The failure to give parties the opportunity to file such supplemental briefs is of no legal consequence, for replies or rebuttal to pretrial briefs may be articulated orally at the required hearing. What is of importance to the litigants is that they be given the opportunity to exercise their right to express their respective claims of law in written form at least once in a pretrial or trial brief and orally at the required hearing.

The right to record their claims of law upon which judgment is sought is set forth in Practice Book § 285A, as follows: “The parties may, as of right, or shall, if the court so orders, file, at such time as the court shall determine, written trial briefs discussing the issues in the case and the factual or legal basis upon which they ought to be resolved. If a party intends to raise any claim of law which may be the subject of an appeal, he must either state the same distinctly to the court before his argument is closed or state it in a written trial brief. If this is not done, it will not be the duty of either the trial court or the appellate court to decide the claim.”

Due process is the keystone of our system of justice. A fair trial is the touchstone of due process. The principal component of a fair trial is a fair hearing after fair notice. It is an established principle of general jurisprudence that courts will not adjudicate a matter involving conflicting rights and interests until all parties directly concerned in the event have been given a reasonable opportunity to appear and be heard. Hasbrouck v. Hasbrouck, 195 Conn. 558, 559-60, 489 A.2d 1022 (1985). The central meaning of procedural due process is that parties whose rights are to be affected are entitled to be heard, and in order that they may enjoy that right they must first be notified. Roundhouse Construction Corporation v. Telesco Mason Supplies Co., 168 Conn. 371, 376, 362 A.2d 778, vacated, 423 U.S. 809, 96 S. Ct. 20, 46 L. Ed. 2d 29 (1975), on remand, 170 Conn. 155, 365 A.2d 393, cert. denied, 429 U.S. 889, 97 S. Ct. 246, 50 L. Ed. 2d 172 (1976). Due process of law requires that a party be given his day in court and an opportunity to be heard. Lechner v. Holmberg, 165 Conn. 152, 156, 328 A.2d 701 (1973); see also Snow v. Calise, 174 Conn. 567, 574, 392 A.2d 440 (1978); Doran v. Doran, 3 Conn. App. 277, 281, 487 A.2d 1106 (1985).

The judgment file in this case recites that the court “issued its Memorandum of Decision denying Plaintiff’s appeal, without hearing.” In this it erred.

The plaintiff has requested that in the event procedural error is found, we consider the substantive issues raised in this appeal “as a more efficient use of judicial resources.” This we cannot do. To do so would be in violation of proper appellate procedure and administrative law.

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

In this opinion the other judges concurred.

       A claim for privilege in assignment for trial is unnecessary in administrative appeals because “[a]ll cases properly on the trial list for administrative appeals shall be privileged in respect to assignment.” Practice Book § 257 (f).

       At this hearing, counsel called to the attention of the court the lack of a finding of aggrievement in the memorandum of opinion. To this the court replied: “I thought they were aggrieved per se.”

       The Uniform Administrative Procedure Act (UAPA), General Statutes § 4-183 (f), requires a provisional hearing in its statement that “[t]he court, upon request, shall hear oral argument and receive written briefs.”

       This procedural rule for pretrial briefs supplements the UAPA’s optional requirement for briefs under General Statutes § 4-183 (f).


text:
    Lawrence Carfora v. Globe, Inc., et al.
    (2876)
    Spallone, Daly and Bieluch, Js.
    Argued October 9
    decision released November 26, 1985

      William F. Gallagher, with whom were William C. Turney and, on the brief, Robert J. Gillooly and Charles R. Douthat, for the appellants-appellees (defendants).

      Charles Sherwood, with whom was Joseph R. Mirrione, for the appellee-appellant (plaintiff).
   Spallone, J.

The defendants are appealing from the judgment of the court rendered after a jury verdict and after the court’s denial of the defendants’ post-trial motions to set aside the verdict and to render judgment pursuant to Practice Book § 321. The plaintiff has cross appealed.

The defendants claim as error (1) that the evidence presented at trial was insufficient to sustain the verdict for the plaintiff, (2) that the court’s charge to the jury and its recharge were deficient in their explanation of the scope of the duty owed by the defendants to the plaintiff, a licensee, and (3) that the court failed to set aside the verdict in the amount of $195,000 as excessive.

The plaintiff’s cross appeal claims error in the court’s failure to submit the question of whether the plaintiff was a business invitee or a licensee to the jury for determination and in the court’s failure to charge the jury that it was their function to determine whether the defendants had constructive notice of the plaintiff’s presence on the premises. At oral argument, counsel for the defendants declared that the defendants had abandoned their third claim that the verdict was excessive.

The evidence produced at the trial indicates that the jury reasonably could have found the following facts: On November 28, 1974, the plaintiff, while on duty as a New Haven police officer, was patrolling an area which included the premises in which the defendant, Globe, Inc., operated a new and used car dealership. The other defendants had various interests in the subject property. Pursuant to specific instructions, the plaintiff was required to give special attention to the defendants’ property because the property had been subject to a substantial number of break-ins and to a considerable amount of theft. The defendants’ agents and one of the individual defendants had made numerous requests that the police give special attention to the subject premises.

While about to exit from his patrol car to make his second or third check of the defendants’ premises that evening, the plaintiff heard the defendants’ burglar alarm sound. Anticipating the possibility of a burglary in process, the plaintiff called for a police backup, left his cruiser and proceeded to check the premises on foot. While doing so, the plaintiff slipped and fell, thereby injuring himself. The plaintiff continued his investigation of the premises and thereafter, along with the backup officer, discovered two ice-covered areas at the site he identified as the location of his fall. It was not raining at the time and there was no other ice on the premises. The area of the fall was unlighted. Security lights located on the building were not turned on. The plaintiff’s injuries were treated, but he was never able to return to regular duty on a consistent basis. Subsequently, the plaintiff was required to accept involuntary retirement. The plaintiff’s underlying suit claimed negligence on the part of the defendants. After a jury trial, the plaintiff was awarded a verdict in the amount of $195,000.

The substance of the defendants’ first claim of error attacks the verdict on the basis that there was insufficient evidence that the defendants had notice of the defect, and that the evidence could not sustain a finding that the defendants breached a duty of care owed to the plaintiff as a licensee. We see no merit to this claim. Our review of the record, transcripts and briefs indicates that there was more than ample evidence presented to sustain the jury’s verdict. Whether such evidence is sufficient is a question for the jury to decide. State v. Scielzo, 190 Conn. 191, 197, 460 A.2d 951 (1983). The judge decides whether there is any evidence to support the verdict. Berndston v. Annino, 177 Conn. 41, 43-44, 411 A.2d 36 (1979). It is also within the province of the jury to determine the credibility and the effect to be given the testimony. Gallo v. Gallo, 184 Conn. 36, 38, 440 A.2d 782 (1981); State v. Grant, 177 Conn. 140, 142, 411 A.2d 917 (1979); Eagar v. Barron, 2 Conn. App. 468, 471, 480 A.2d 576 (1984). Moreover, it is the jury’s right to consider evidence, draw logical deductions and make reasonable inferences from facts proven. State v. Schoenbneelt, 171 Conn. 119, 126, 368 A.2d 117 (1976); Dacey v. Connecticut Bar Assn., 170 Conn. 520, 540, 368 A.2d 125 (1976). The jury decides questions of fact. Gaulton v. Reno Paint & Wallpaper Co., 177 Conn. 121, 127, 412 A.2d 311 (1979). It may accept or reject the testimony of any witness; Zarembski v. Three Lakes Park, Inc., 177 Conn. 603, 608, 419 A.2d 339 (1979); and determine the weight to be given the evidence. Angelica v. Fernandes, 174 Conn. 534, 535, 391 A.2d 167 (1978). The verdict must stand unless it is against the evidence or its manifest injustice is so plain as to justify the belief that the jury or some of its members were influenced by ignorance, prejudice, corruption or partiality. Martino v. Palladino, 143 Conn. 547, 548, 123 A.2d 872 (1956); Preisner v. Illman, 1 Conn. App. 264, 268, 470 A.2d 1237 (1984). We see nothing in this appeal to justify a finding of error based upon insufficiency of the evidence.

The defendants also contend that the charge and the recharge were defective in that they did not adequately explain to the jury the scope of the duty owed a licensee. We disagree. In determining whether the trial court erred in its charge, the charge must be read as a whole and the instructions claimed to be in error read in that context. Giglio v. Hamilton Heights, Inc., 1 Conn. App. 165, 167, 469 A.2d 416 (1984), citing Matthews v. F.M.C. Corporation, 190 Conn. 700, 704, 462 A.2d 376 (1983) . Jury instructions need not be exhaustive, perfect or technically accurate so long as they are correct in law, adapted to the issues and sufficient for the guidance of the jury. State v. Storlazzi, 191 Conn. 453, 464, 464 A.2d 829 (1983); Castaldo v. D’Eramo, 140 Conn. 88, 94, 98 A.2d 664 (1953); State v. Heinz, 1 Conn. App. 540, 549, 473 A.2d 1242 (1984). The adequacy of the instructions must be determined in the light of their overall impact on the jury. State v. Truppi, 182 Conn. 449, 458, 438 A.2d 712 (1980), cert. denied, 451 U.S. 941, 101 S. Ct. 2024, 68 L. Ed. 2d 329 (1981); State v. Lenczyk, 1 Conn. App. 270, 271, 470 A.2d 1240 (1984) . The charge must be examined to determine whether it fairly presents a case to a jury and is not to be subject to a degree of scrutiny that is tantamount to a microscopic examination seeking technical flaws, inexact, inadvertent or contradictory statements. Ubysz v. DiPietro, 185 Conn. 47, 57, 440 A.2d 830 (1981); Tripp v. Anderson, 1 Conn. App. 433, 436, 472 A.2d 804 (1984). We cannot say that the court’s charge to the jury with regard to the duty owed a licensee was clearly erroneous when the overall charge is analyzed within the framework of the standards recited above.

The defendants’ final claim, that the motion to set aside the verdict should have been granted, is also without merit. In reviewing the court’s action on a motion to set aside the verdict, the dispositive question is whether or not the trial court clearly abused its discretion. Labatt v. Grunewald, 182 Conn. 236, 240, 438 A.2d 85 (1980). The evidence must be given a construction most favorable to sustaining the jury’s verdict. Herb v. Kerr, 190 Conn. 136, 140, 459 A.2d 521 (1983); Todd v. Malafronte, 3 Conn. App. 16, 23, 484 A.2d 463 (1984); State v. Failla, 1 Conn. App. 524, 527, 473 A.2d 1233 (1984). Because of the court’s familiarity with the facts, the ruling of the trial court on a motion to set aside the verdict is entitled to great weight. Hearl v. Waterbury YMCA, 187 Conn. 1, 3, 444 A.2d 211 (1982); Nielson v. D'Angelo, 1 Conn. App. 239, 244, 471 A.2d 965 (1984); see Holden & Daly, Connecticut Evidence (1983 Sup.) § 35. In determining whether the trial court abused its discretion, the only issue is whether the jury could reasonably and logically have reached the conclusion it did. If so, the court’s refusal to set aside the verdict will be sustained. Labatt v. Grunewald, supra, 240-41. We conclude that the jury could reasonably and logically have concluded as it did, and that the court did not abuse its discretion in denying the defendants’ motion to set aside the verdict.

As we have already ruled that the record contains sufficient evidence to support the verdict, we see no error in the court’s refusal to grant the defendants’ motion for judgment pursuant to § 321 of the Practice Book.

Because the plaintiff prevailed in the trial court, we do not deem it necessary to expound further upon his claims of error.

There is no error.

In this opinion the other judges concurred.


author: Daly, J.

text:
    Papa Gino’s of America, Inc. v. Broadmanor Associates, Ltd.
    (3539)
    Hull, Borden and Daly, Js.
    Argued October 2
    decision released November 26, 1985

      J. Rene Frechette, with whom, on the brief, was Kathleen M. Hannon, for the appellant (plaintiff).

      JoAnn Paul, for the appellee (defendant).
   Daly, J.

The plaintiff lessee instituted this action for a declaratory judgment and for injunctive relief, seeking the determination of the meaning of the term “gross sales” contained in a lease held by the defendant lessor. The trial court, acting on motions for summary judgment filed by both parties, ruled that free and discounted meals offered to the plaintiffs employees are exempt from the calculation of gross sales; that aspect of the summary judgment is not involved in this appeal. The court also ruled that the face value of discount coupons made available to the public and redeemed at the plaintiff’s restaurant are not exempt from the gross sales calculation. The plaintiff appeals from this second aspect of the court’s ruling.

The facts are not in dispute. On July 1, 1978, the plaintiff, Papa Gino’s of America, Inc., entered into a written lease with the predecessor in title to the defendant, Broadmanor Associates, Ltd., for the rental of commercial premises at the Manchester Shopping Parkade where the plaintiff operates a restaurant business. The lease was for a term of ten years with three options of five years each to extend the lease. The lease provided for a fixed minimum rental payment at a specified monthly rate, and for additional rent equal to five percent of the plaintiff’s “annual Gross Sales in excess of $285,000

Under the lease, the plaintiff, as lessee, was to maintain a complete and accurate set of books and records of its gross sales showing daily receipts. If an audit disclosed a liability for rent, the plaintiff would be liable for the deficiency, together with the cost of the audit. In the event that the defendant, as lessor, brought suit for a breach of the lease, the plaintiff could be liable for the expenses of litigation, including attorney’s fees.

It has been the plaintiff’s policy and practice to provide meals free of charge or at a discount to its employees during their work shifts. The plaintiff has also made discount coupons available to the public. Upon presentation, the plaintiff deducted the face value of each coupon from the regular menu price of the goods and services purchased by the holder.

In 1981, the defendant purchased the parkade subject to the lease held by the plaintiff. In October, 1982, the defendant notified the plaintiff of its intention to proceed against the plaintiff for deficiencies in the percentage rental amount because the plaintiff had not included the value of free and discounted employees’ meals and the face value of the discount coupons in its report of gross sales. To protect its rights under the lease, the plaintiff paid, under protest, $963.21 to the defendant’s attorney to be held in escrow pending the resolution of the dispute. Of that amount, $150 is attributable to attorney’s fees, $550 for audit expenses, and the remainder represents the amount claimed for the rental deficiencies and interest.

The plaintiff initiated this action for a determination that it was not in default of the lease, for a return of the escrow funds and for an injunction restraining the defendant from proceeding against it. On motions for summary judgment filed by both parties, the trial court held that the term “gross sales” in the lease included the face value of the discount coupons made available to the public upon redemption. The court declined to issue injunctive relief.

The plaintiff has raised the following issues on appeal: (1) whether the trial court erred in failing to declare that the term “gross sales” in the lease does not include the face value of the discount coupons made available to the public, because the plaintiff receives no monetary compensation for the amount discounted in sales to coupon holders; and (2) whether the trial court erred in denying the return of the escrow fund to the plaintiff. We find that the trial court was in error on both points.

“A lease is a contract. In its construction, three elementary principles must be kept constantly in mind: (1) the intention of the parties is controlling and must be gathered from the language of the lease in the light of the circumstances surrounding the parties at the execution of the instrument; (2) the language must be given its ordinary meaning unless a technical or special meaning is clearly intended; (3) the lease must be construed as a whole and in such a manner as to give effect to every provision, if reasonably possible. Ingalls v. Roger Smith Hotels Corporation, 143 Conn. 1, 6, 118 A.2d 463 (1955).” Hatcho Corporation v. Della Pietra, 195 Conn. 18, 20, 485 A.2d 1285 (1985); Central New Haven Development Corporation v. La Crepe, Inc., 177 Conn. 212, 214-15, 413 A.2d 840 (1979). It has been established that a party is entitled to rely on its written contract as the final integration of its rights and duties. Zullo v. Smith, 179 Conn. 596, 601, 427 A.2d 409 (1980).

A lease which provides for a percentage rent added to a fixed rent is a common arrangement for the rental of commercial premises. McMichael & O’Keefe, Leases-Percentage, Short and Long Term (6th Ed.) pp. 5, 32. The percentage lease gears the landlord’s return to the productivity of his location, such productivity being measured by the tenant’s gross dollar volume in sales. Note, “The Percentage Lease—Its Functions and Drafting Problems,” 61 Harv. L. Rev. 317, 318 (1948). In addition to a percentage lease arrangement, the lease in question defined “gross sales” to mean “the entire gross income from the use or occupancy of the leased premises (including advertising and demonstrations) and of all business conducted thereat. These terms shall also include the full price of all sales made and services rendered at the leased premises .... There shall also be deducted, to the extent to which they shall be included in the sales price, the amount of sales or other taxes which may be imposed by law on the purchaser.” See footnote 3, supra.

The definition of the term “gross sales” has no definitive judicial meaning, is imprecise, and depends principally upon the wording established by the parties in a particular contract. Annot., 58 A.L.R.3d 384, 400. The term “sale,” as ordinarily defined and popularly understood, means the transfer of property for money paid or to be paid; this is the usage of the term in the lease with which we are here concerned. Freund Motor Co. v. Alma Realty & Investment Co., 235 Mo. App. 587, 142 S.W.2d 793 (1940). The term “receipts” indicates money received from a sale. Taft Realty Corporation v. Yorkhaven Enterprises, Inc., 146 Conn. 338, 343, 150 A.2d 597 (1959). Further, under the Connecticut sales tax laws, cash discounts are not included as taxable income and not considered as “gross receipts.” General Statutes § 12-407 (9). In the hotel business, total gross revenues from room rentals do not include credit card discounts. Cocke v. Pacific Gulf Development Corporation, 594 S.W.2d 545, 549 (Tex. Civ. App. 1980). It would appear, then, that “gross sales” and “receipts” indicate money or cash that is actually received, and therefore would not apply to the discount coupons.

“The courts do not favor constructions in derogation of the course of conduct of the parties.” Marlton Operating Corporation v. Local Textiles Mills, Inc., 137 N.Y.S.2d 438, 440 (Sup. Ct. N.Y. 1954). The plaintiffs undisputed affidavit indicates that it did not consider the coupons as “gross sales” at any time during the almost three year duration of the lease which preceded the lease transfer to the defendant. The purpose of the coupons, presumably, is to lure customers into the plaintiffs restaurant with the expectation that they will purchase other items as well. By this method, the landlord receives a benefit from the gross sales. To give the landlord the value of the inducement as well (the coupon) would be to construe the lease as allowing the landlord an additional, uncontemplated kind of “double recovery.” We conclude that this is unwarranted under the circumstances and, therefore, that the trial court incorrectly included the face value of the discount coupons offered to the restaurant patrons in the calculation of gross sales generated by the plaintiffs business.

With regard to attorney’s fees and audit expenses, the plaintiff is entitled to a full refund of the amounts held in escrow. “The rule in Connecticut is that absent contractual or statutory authorization, each party must pay its own attorney’s fees.” Gino’s Pizza of East Hartford, Inc. v. Kaplan, 193 Conn. 135, 140, 475 A.2d 305 (1984). Attorney’s fees, according to the lease, are recoverable under Article XV, § 1 (c), where the landlord successfully institutes an action against the tenant for breach of the lease. Such is not the case here, as the defendant did not bring suit for recovery of rent nor was there a judicial determination that the plaintiff breached the lease. Article II, § 2 (D) authorizes the reimbursement of audit expenses if a rent deficiency is established. No such deficiency was established and, therefore, the trial court was justified in disallowing the defendant’s claim to these amounts held in the escrow fund. Further, in light of our holding that the lease does not require the plaintiff to pay rent on the basis of a percentage of the value of the discount coupons, the plaintiff is entitled to the return of the entire escrow fund paid pending resolution of those claims.

With regard to the plaintiff’s claim for injunctive relief, it is now clear that the substantive issues raised in the case have been decided. There is no suggestion that the defendant will disregard this decision. Thus, we find no error in the trial court’s declining to issue injunctive relief.

There is error in part, the judgment is set aside and the case is remanded with direction to render judgment as on file except that the term “gross sales” shall not include the value of the subject discount coupons, and the amounts held in escrow shall be awarded to the plaintiff.

In this opinion the other judges concurred.

       Article II, § 2 (D) of the lease provides in pertinent part: “Tenant shall throughout the term maintain a complete and accurate set of books and records of its Gross Sales, in accordance with good accounting practice in this regard. Such books and records shall show daily receipts from all sales and other transactions constituting Tenant’s Gross Sales, as defined herein, whether of Tenant or any assignee, subtenant, licensee, concessionaire, or any other party doing business at the leased premises.”

       Article XV, § 1 (c) of the lease provides in pertinent part: “In case suit shall be brought for recovery of possession of the leased premises and/or for the recovery of rent or any other amounts due under the provisions of this Lease or because of the breach of any other covenant herein contained on the part of Tenant to be kept or performed, and such breach shall be established, Tenant shall pay to Landlord all expenses incurred therefore, including out-of-pocket attorneys’ fees.”

       Article XXVIII, § I (b) of the lease provides: “ ‘Gross Sales’ and ‘Tenant’s Gross Sales’ shall mean the entire gross income from the use or occupancy of the leased premises (including advertising and demonstrations) and of all business conducted thereat. These terms shall also include the full price of all sales made and services rendered at the leased premises, including all mail and telephone orders received at the leased premises, deposits not refunded to customers, orders taken at said premises though filled elsewhere and orders taken elsewhere though filled at the leased premises, whether by Tenant, any assignee, subtenant, licensee or concessionaire of Tenant or by any other party doing business at said premises. Said terms shall not include: vending machine sales of cigarettes and music, transfer of merchandise from one store of Tenant to another, when not for the purpose of completing a sale theretofore made at said premises or to deprive Landlord of credit for a sale thereat; return of merchandise to shippers or manufacturers; merchandise returned by customers for which a credit is allowed; sale of Tenant’s fixtures. There shall also be deducted, to the extent to which they shall be included in the sales price, the amount of sales or other taxes which may be imposed by law on the purchaser. Sales for cash or credit shall be treated as a sale for the full price in the month when made, irrespective of the time of payment or whether payment shall be made. Any matters herein mentioned which shall occur outside the leased store but within the Shopping Center are included in Tenant’s Gross Sales. The immediately preceding sentence shall not be deemed or construed to expand any rights of Tenant hereunder.”


author: Per Curiam.

text:
    Housing Authority of the City of Hartford v. Local 1161, Council 4, AFSCME et al.
    (3356)
    Hull, Borden and Bieluch, Js.
    Argued November 12
    decision released December 3, 1985

      W. Richard Smith, Jr., with whom, on the brief, was J. William Gagne, Jr., for the appellants (defendants).

      Morris Apter, for the appellee (plaintiff).
   Per Curiam.

There is no error.


author: Borden, J.

text:
    State of Connecticut v. One 1981 BMW Automobile
    (2102)
    Borden, Daly and Bieluch, Js.
    Argued October 10
    decision released December 3, 1985

      Daniel D. Skuret, with whom, on the brief, were Michael Moher and Ronald T. Stankye, law student intern for the appellant (defendant owner).

      JohnM. Massameno, assistant state’s attorney, with whom, on the brief, were Dennis Santore, state’s attorney, Robert D‘Andrea, deputy assistant state’s attorney, and Judith Rossi, special deputy assistant state’s attorney, for the appellee (state).
   Borden, J.

The defendant, Russell Kuskowski, is the owner of a 1981 BMW automobile which was the subject of an in rem proceeding by the state pursuant to General Statutes § 54-33g. He appeals from the judgment of the court ordering the automobile forfeited, raising several claims of error, one of which is dispositive. The principal issue on appeal is whether a valid summons is a personal jurisdictional prerequisite to forfeiture of the owner’s interest in the automobile. We hold that it is, and find error.

The defendant was arrested in 1982 without a warrant when a police officer discovered him using cocaine in his 1981 BMW automobile. In connection with the arrest the automobile was seized and searched. The search yielded more cocaine, drug paraphernalia and cash, which were also seized.

The next morning the police obtained a search and seizure warrant for the automobile. The police had also prepared a document which the judge signed purporting to institute in rem proceedings against the automobile. The document was served on the defendant. The critical issue in the case arises out of this document. In its caption, it listed the defendant’s name and address, and identified him as the owner of a 1981 BMW automobile and of cash, which the state sought to have confiscated as a nuisance. The “summons” portion of the document, however, was left blank. That portion of the document was the judicial command to the sheriff or police officer to summon named persons, including the owner of the property involved, “to appear before the Superior Court . . . to show cause why the property described . . . should not be adjudged a nuisance and . . . disposed of as by law provided.”

The defendant timely moved to dismiss the in rem proceeding on the grounds, inter alia, that there was no summons and that any purported summons was not properly completed. The court denied the motion to dismiss. The state then proceeded on the in rem application. The court ordered the car forfeited. This appeal followed.

We agree with the defendant’s claim that the court erred by denying his motion to dismiss the in rem proceeding on grounds of personal jurisdiction. Although forfeiture proceedings pursuant to General Statutes § 54-33g often arise incident to criminal prosecutions, as they did here, that “ ‘statute is not a criminal statute, but provides for a civil action in rem for the condemnation and forfeiture of the car which was used in violation of the law.’ ” State v. One 1977 Buick Automobile, 196 Conn. 471, 485, 493 A.2d 874 (1985).

General Statutes § 54-33g (a) requires that if the state desires to have seized property “destroyed or disposed of in accordance with the provisions of this section, the . . . court . . . shall . . . cause to be left with the owner of . . . the property . . . a summons notifying the owner ... to appear before such . . . court ... to show cause why such property should not be adjudged a nuisance and ordered to be destroyed or otherwise disposed of as herein provided.” (Emphasis added.)

This statute, being a forfeiture statute, must be read and applied strictly. State v. Sabia, 1 Conn. App. 315, 318, 471 A.2d 673 (1984). “The purpose of General Statutes § 54-33g is ‘to exercise the sovereign power to forfeit property shown to have been involved in an illegal enterprise.’ State v. Bucchieri, 176 Conn. 339, 348, 407 A.2d 990 (1978). ‘As a general rule, forfeiture is not favored, and statutes providing for forfeiture are strictly construed. United States v. One 1936 Model Ford Deluxe V-8 Coach, 307 U.S. 219, 226, 59 S. Ct. 861, 864, 83 L. Ed. 1249 (1939).’ United States v. One 1977 Cadillac, Etc., 644 F.2d 500, 501 (5th Cir. 1981); see also State v. Certain Contraceptive Materials, 126 Conn. 428, 431, 11 A.2d 863 (1940); State v. One 1960 Mercury Station Wagon, 5 Conn. Cir. Ct. 1, 10, 240 A.2d 99 (1968); 36 Am. Jur. 2d, Forfeiture and Penalties § 8. This is particularly so because, although not the case here, forfeiture statutes such as General Statutes § 54-33g apply to innocent owners of the property as well as those with knowledge of the illegal enterprise. Alcorn v. Alexandrovicz, 112 Conn. 618, 625, 153 A. 786 (1931).” State v. Sabia, supra.

Thus, “this statute, read strictly, as it must be”; id.; requires that the owner of the property be summoned to appear before the court. Because the nature of the in rem action is civil; State v. One 1977 Buick Automobile, supra; it is appropriate to look to the civil law for the meaning of a summons.

“In ordinary usage of the term, [a summons is the] original process upon a proper service of which an action is commenced and-the defendant therein named brought within the jurisdiction of the court . . . . ” Ballentine’s Law Dictionary (3d Ed.). A summons is part of a citation. “The citation ... is a command to a duly authorized officer to summon the [defendant] ... to appear in court on a specific day to answer the [order to show cause].” Village Creek Homeowners Assn. v. Public Utilities Commission, 148 Conn. 336, 338-39, 170 A.2d 732 (1961). “ ‘A citation is a writ issued out of a court . . . commanding a person therein named to appear on a day named to do something therein mentioned.’ . . . Similar to the writ used in civil process, the citation is simply a ‘direction to the officer to summon the [defendant to court].’ Stephenson [Connecticut Civil Procedure § 18].” Sheehan v. Zoning Commission, 173 Conn. 408, 412, 378 A.2d 519 (1977).

“The citation, signed by competent authority, is the warrant which bestows upon the officer to whom it is given for service the power and authority to execute its command. . . . Without it, the officer would be little more than a deliveryman. . . . The citation is a matter separate and distinct from the sheriff’s return and is the important legal fact upon which the judgment rests. ... A proper citation is essential to the validity of the . . . jurisdiction of the court. (Citations omitted.)” Board of Education v. State Board of Education, 38 Conn. Sup. 712, 716, 461 A.2d 997 (1983), quoting Village Creek Homeowners Assn. v. Public Utilities Commission, supra, 339; see also Newtown v. Department of Public Utility Control, 3 Conn. App. 416, 419, 488 A.2d 1286 (1985); Daniels v. New Haven Police Department, 3 Conn. App. 97, 99, 485 A.2d 579 (1985).

The courts of this state have uniformly held that a proper citation and summons is a jurisdictional prerequisite to the validity of an administrative appeal taken pursuant to statute. Village Creek Homeowners Assn. v. Public Utilities Commission, supra; Newtown v. Department of Public Utility Control, supra; Daniels v. New Haven Police Department, supra; Board of Education v. State Board of Education, supra. We see no reason why, when the state wishes to confiscate property pursuant to a statute requiring a summons to the owner, it should be held to any lesser standard of acquiring personal jurisdiction over that owner.

Here, the crucial part of the document purporting to comply with General Statutes § 54-33g was left blank. The heading or upper part of the document, containing the specific data relevant to this particular case, did no more than identify the defendant as the owner of the property seized and indicate the date of the seizure. The summons appearing below the heading was left completely blank. Nowhere does the completed form command any officer to summon the defendant, or anyone else, to court, even though the summons on the form indicates that the property owner’s name is to be inserted as one to be summoned, along with other claimants to interests in the property. Under these circumstances, the officer serving the document on the defendant was “little more than a deliveryman” of the uncompleted form; Village Creek Homeowners Assn. v. Public Utilities Commission, supra; and the court obtained no personal jurisdiction over the defendant for purposes of the in rem proceeding.

The state argues that the defects in the in rem document were merely circumstantial and did not deprive the court of personal jurisdiction over the defendant, because the document gave him actual notice of the proceedings and because General Statutes § 52-123 excuses, in civil actions, “circumstantial errors, mistakes or defects, if the person and the cause may be rightly understood and intended by the court.” We reject this argument. “A [summons or] citation is not synonymous with notice”; Village Creek Homeowners Assn. v. Public Utilities Commission, supra; and the lack of a “direction to the proper officers for service and [of] a command to summon the defendant to appear in court . . . constitutes more than a circumstantial defect.” Id., 340.

This conclusion renders it unnecessary for us to consider the defendant’s other claims of error.

There is error, the judgment is set aside and the case is remanded with direction to render judgment granting the defendant’s motion to dismiss.

In this opinion the other judges concurred.

       Although technically the in rem proceeding was against the automobile, we refer to Kuskowski as the defendant because General Statutes § 54-33g (b) provides that if its owner appears “he shall be made a party defendant in such case.”

       The cash was not the subject of the forfeiture order and is not involved in this appeal.

       Upon interrogation, the defendant admitted to using cocaine and to selling it to fellow workers at his place of employment. He was ultimately convicted of possession of cocaine with intent to sell, and possession of cocaine. Those convictions are the subject of a separate appeal pending in the Supreme Court.

       In State v. Sabia, 1 Conn. App. 315, 471 A.2d 673 (1984), we held that forfeitures pursuant to General Statutes § 54-33g were limited to property-seized pursuant to a search warrant. That reading of the statute was “overturned by [a subsequent legislative] amendment” which the Supreme Court “view[ed] . . . as a legislative declaration of what § 54-33g (c), when read in conjunction with § 54-36a (c), was originally intended to mean.” State v. One 1977 Buick Automobile, 196 Conn. 471, 479, 493 A.2d 874 (1985). The amendment, Public Acts 1984, No. 84-540, § 4, clarified that General Statutes § 54-33g also applied to property seized pursuant to certain warrantless arrests. We do not, however, regard that legislative declaration as a renunciation of the principle of strict construction of forfeiture statutes long held in this and most other jurisdictions. See State v. Sabia, supra.

       Although this proceeding is referred to as a proceeding “in rem,” this label does not alter the significance of the specific statutory requirement of a valid summons to the owner of the property as a prerequisite to personal jurisdiction. Cf. Mendrochowicz v. Wolfe, 139 Conn. 506, 511, 95 A.2d 260 (1953) (trial court in “in rem” proceeding has power to enter a valid judgment settling title to real estate, even though there is no in personam jurisdiction).


text:
    Judith Gereg v. Administrator, Unemployment Compensation Act
    (3691)
    Hull, Daly and Bieluch, Js.
    Argued November 14
    decision released December 3, 1985

      Walter R. Keenan, for the appellant (plaintiff).

      Richard T. Sponzo, assistant attorney general, with whom, on the brief, were Joseph I. Lieberman, attorney general, and Robert E. Walsh, assistant attorney general, for the appellee (defendant).
   Per Curiam.

There is no error.


text:
    William Z. Nesin v. New England Machinery, Inc.
    (3880)
    Spallone, Daly and Bieluch, Js.
    Argued October 11
    decision released December 3, 1985

      Pasquale Young, for the appellant (plaintiff).

      John W. Barnett, for the appellee (defendant).
   Spallone, J.

This is the plaintiff’s appeal from the judgment rendered for the defendant after a trial to the court. The plaintiffs underlying action was based upon the defendant’s alleged breach of a written agreement between the parties.

The plaintiff’s claims of error challenge the trial court’s interpretation of the agreement between the parties. Specifically, the plaintiff claims as error the trial court’s conclusions (1) that the contract between the parties did not require the defendant to retain the plaintiff as a consultant for a ten year period, (2) that the plaintiff’s consulting obligations and the defendant’s salary obligations were dependent upon the request of the defendant, and (3) that the contract was binding on the defendant for a ten year term with respect to the furnishing of the automobile and its related expenses but was not binding on the defendant with respect to the ten year consulting term.

As claims (1) and (2) are related, they will be considered together. The relevant facts are as follows: In January, 1983, the plaintiff was a stockholder, an employee and the treasurer of the defendant corporation. At that time, he entered into a written contract with the defendant which provided in part that the plaintiff “shall resign from his employment with NEW ENGLAND MACHINERY, INC. and resign as treasurer of said corporation. In consideration of same, the said WILLIAM Z. NESIN shall remain as a consultant to NEW ENGLAND MACHINERY, INC., and provide personal services to the said corporation upon request by said corporation during the period of this agreement; i.e., January 1,1983 through December 31,1992. The said WILLIAM Z. NESIN shall also receive from the corporation TWENTY THOUSAND AND NO/lOO ($20,000.00) DOLLARS per year as salary for his consulting services. It is further agreed that the said WILLIAM Z. NESIN shall only provide twelve (12) weeks of consulting services to NEW ENGLAND MACHINERY, INC. per year during the term of this agreement.”

The agreement provided further that during the term of the agreement, “the said WILLIAM Z. NESIN shall receive a new automobile from NEW ENGLAND MACHINERY, INC. every two (2) years commencing June 1,1983. In addition to said new automobile, NEW ENGLAND MACHINERY, INC. shall pay for maintenance and expenses, including gasoline, in connection with said automobile.”

Pursuant to the terms of the agreement, the plaintiff resigned from the corporation. He provided consulting services for the defendant in 1983 and was paid for such services in accordance with the schedule provided in the contract. The defendant provided the plaintiff with a new car as required by the agreement.

Subsequently, the parties had a falling out. As a result, the defendant refused to utilize the consulting services of the plaintiff, and the plaintiff brought two lawsuits against the defendant. In the first suit, the plaintiff sought $3086.61 for the expenses of maintaining the automobile provided to him by the defendant. In the second suit, the plaintiff claimed that the defendant violated the terms of the parties’ agreement by terminating his consulting services at the end of 1983 despite the fact that the agreement was to continue until December 31, 1992.

Both cases were consolidated and tried together. After a full trial, the court rendered judgment in both cases. It found for the plaintiff in the suit seeking expenses for the maintenance and operation of the motor vehicle, and for the defendant in the breach of employment contract action. The plaintiff has appealed only from the judgment in the latter action.

In its memorandum of decision, the trial court found that the agreement between the parties provided expressly that the plaintiff would furnish consulting services to the defendant upon the request of the defendant and that, if such a request were made, the defendant would pay the plaintiff the agreed upon compensation. Consequently, the court found that the plaintiffs consulting services and the defendant’s salary obligations became operative only upon the request of the defendant. The court stated that “[n]owhere in the agreement is it suggested that the defendant must compensate the plaintiff for consulting services . . . irrespective of whether or not such services are ever requested.”

We cannot say that this construction by the trial court is clearly erroneous. When construing a contract “[a] court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity, and words do not become ambiguous simply because lawyers or laymen contend for different meanings.” Downs v. National Casualty Co., 146 Conn. 490, 494-95, 152 A.2d 316 (1959); Reese v. First Connecticut Small Business Investment Co., 182 Conn. 326, 327, 438 A.2d 99 (1980); Burkle v. Car & Truck Leasing Co., 1 Conn. App. 54, 57, 467 A.2d 1255 (1983). In the absence of a special meaning, the words used must be taken in their ordinary and popular sense. Lake Garda Improvement Assn. v. Battistoni, 160 Conn. 503, 512, 280 A.2d 877 (1971). These principles, when applied to the agreement between the parties in the present case, strongly support the conclusion of the trial court that the plaintiff is required to perform only when requested to do so by the defendant, and that the defendant is under no obligation to pay a salary to the plaintiff until such a request is made and the defendant provides the requested services.

The plaintiffs remaining claim, that the court’s conclusions are inconsistent, is without merit. The court found that there was a contract between the parties, one aspect of which required the performance of consulting services upon request and another which required that the defendant provide and maintain an automobile for the plaintiff’s use during the term of the contract. The trial court’s conclusions, under the circumstances in this case, are reasonable, consistent and fully supported by a logical application of the law.

There is no error.

In this opinion the other judges concurred.


text:
    Robin Mae Neder v. Thomas Wildrick
    (3660)
    Hull, Daly and Bieluch, Js.
    Argued November 14
    decision released December 3, 1985

      Charles K. Thompson, for the appellant (defendant).

      Douglas B. Sherman, assistant attorney general, with whom were Eugene C. Cushman and, on the brief, Joseph I. Lieberman, attorney general, for the appellee (plaintiff).
   Per Curiam.

There is no error.


text:
    State of Connecticut v. Richard Fantasia
    (3207)
    Spallone, Daly and Bieluch, Js.
    Argued October 9
    decision released December 3, 1985

      Edward N. Lerner, with whom, on the brief, was Gerald M. Klein, for the appellant (defendant).

      Michael E. O’Hare, deputy assistant state’s attorney, with whom, on the brief were William Domnarski, former deputy assistant state’s attorney, Carl Schuman, assistant state’s attorney, and Peter Ponziani, former assistant state’s attorney, for the appellee (state).
   Spallone, J.

The defendant is appealing from the judgment rendered following his conviction of perjury under General Statutes § SSa-lSG.

The defendant briefed two claims of error. The first is without merit, leaving as the sole issue before us whether the court erred in finding the defendant guilty of perjury beyond a reasonable doubt.

The defendant’s perjury conviction stemmed from statements he made under oath while being tried on drug related charges. In those statements, the defendant denied having a prior drug record and having had any previous involvement with drugs. The state charged that the defendant made these statements despite knowing that he previously had been convicted of possession of a controlled substance, in violation of General Statutes (Rev. to 1979) § 19-481 (c), and had previously been involved with drugs.

In proving its case, the state introduced documentary evidence which included a transcript of the defendant’s jury trial dated October 18, 1983, during which the alleged perjury was committed, a record of the defendant’s conviction for possession of a controlled substance after a plea of guilty on March 28, 1980, a transcript of that plea and records of the defendant’s conviction which resulted from the October, 1983 trial.

In defense of the perjury charge, the lawyer who represented the defendant in the October, 1983 trial testified that the defendant’s testimony was unintentionally false because counsel thought the defendant’s previous conviction was for breach of peace, and not for a drug charge. He testified that he had advised the defendant that he could legally testify that he had no drug record or involvement.

When reviewing the judgment of a trial court, our standard of review is the same whether the trier of fact is a judge, a panel of judges or a jury. State v. D’Antuono, 186 Conn. 414, 421, 441 A.2d 846 (1982). “ When a verdict is challenged because of insufficient evidence, the issue is whether the [trier] could have reasonably concluded, upon the facts established and the inferences reasonably drawn therefrom, that the cumulative effect of the evidence established guilt beyond a reasonable doubt.’ ” State v. Carter, 196 Conn. 36, 44, 490 A.2d 1000 (1985), quoting State v. Nemeth, 182 Conn. 403, 410, 438 A.2d 120 (1980). In our appraisal of the evidence, we do not distinguish between direct and circumstantial evidence so far as probative force is concerned. State v. Braxton, 196 Conn. 685, 691, 495 A.2d 273 (1985). The evidence presented at trial is construed in the light most favorable to sustaining the verdict. State v. Braxton, supra; State v. Carter, supra. It is within the province of the trier to draw reasonable and logical inferences from facts proven, and the trier “ ‘may base an inference on facts it finds as a result of other inferences.’ ” State v. Carter, supra, 44-45, quoting State v. Gabriel, 192 Conn. 405, 425, 473 A.2d 300 (1984). We cannot substitute our judgment for that of the factfinder on conclusions of fact even though we might disagree with the conclusions reached.

The defendant has confined his claim of insufficient evidence to the element of intent. The intent of the actor is a question of fact for the trier, and the conclusion of the trier in this regard should stand unless it is an unreasonable one. State v. Martin, 195 Conn. 166, 170, 487 A.2d 177 (1985); State v. Haddad, 189 Conn. 383, 398, 456 A.2d 316 (1983). Intent is a mental process which ordinarily can be proven only by circumstantial evidence and through inferences drawn from such evidence. State v. Haddad, supra, 398-99; State v. Zdanis, 182 Conn. 388, 396, 438 A.2d 696 (1980), cert. denied, 450 U.S. 1003, 101 S. Ct. 1715, 68 L. Ed. 2d 207 (1981). “ ‘It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence.’ ” State v. Braxton, supra, quoting State v. Perez, 183 Conn. 225, 227, 439 A.2d 305 (1981). Whether an individual intended to commit perjury must be decided in the same manner. United States v. Cuesta, 597 F.2d 903, 921 (5th Cir. 1979).

In the present case, the state offered documentary-evidence which on its face indicated that the defendant testified falsely. In appropriate circumstances, belief of falsity may be inferred by proof of the falsity itself. La Placa v. United States, 354 F.2d 56, 59 (1st Cir. 1965), cert. denied, 383 U.S. 927, 86 S. Ct. 932, 15 L. Ed. 2d 846 (1966). We conclude that the evidence presented at trial was sufficient to support the trial court’s finding that the defendant acted with the intent to commit perjury.

In reaching this conclusion, we adhere to the principle that the advice of counsel as to matters presenting questions of fact may not constitute a defense to a perjury charge. 60 Am. Jur. 2d, Perjury § 48 (1972). The evidence shows that the defendant at a time prior to his alleged perjured testimony, stood before a court, pleaded guilty to a drug charge and was convicted of that charge. This is a fact situation, not a question of law. It is of no comfort to the defendant that he relied on his attorney’s memory. Such an assertion does not transform a fact into a question of law.

Under the totality of the circumstances and in view of the evidence presented in this case, we cannot say that the finding of guilty was not supported by sufficient evidence.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 53a-156 (a) provides: “A person is guilty of perjury if, in any official proceeding, he intentionally, under oath, makes a false statement, swears, affirms or testifies falsely, to a material statement which he does not believe to be true.”


author: Dupont, C. J.

text:
    State of Connecticut v. Gary Burrows
    (3066)
    Dupont, C. J., Hull and Borden, Js.
    Argued October 4
    decision released December 3, 1985

      Robert M. Casale, with whom, on the brief, was Max F. Brunswick, for the appellant (defendant).

      Julia D. Dewey, assistant state’s attorney, with whom, on the brief, were Arnold Markle, state’s attorney, and Robert J. Devlin, assistant state’s attorney, for the appellee (state).
   Dupont, C. J.

The defendant was convicted after a trial to a jury of first degree sexual assault, a violation of General Statutes § 53a-70. During the trial, he asserted an alibi defense and, after the judgment of guilty was rendered, was sentenced to a twelve year term of imprisonment. The defendant claims on appeal that the trial court erred (1) in refusing to issue a capias to secure the attendance of a witness expected by him to offer exculpatory testimony, and (2) in allowing him to be cross-examined regarding prior arrests that did not result in convictions.

The victim of the assault was an employee of Andre’s Massage Service in New Haven. Late in the evening, the victim received a phone call from her employer, Gabriel Gladstone. He informed her that a “Mr. Booth” had telephoned and requested a massage at his residence. Gladstone gave the victim a telephone number to call for directions to the residence. She called the telephone number, later established to be a public telephone, received directions to the house, and arrived at the residence at approximately midnight. There she met a man who identified himself as “Mr. Booth.” There were no lights on in the house, and he explained that a fuse had blown and he was waiting to have it fixed. The victim then entered the house with him and was subsequently sexually assaulted.

She was able to describe her assailant to the police in sufficient detail to make a composite picture, but was unable to make a positive photographic identification of the defendant whose picture was included in a photo array of eight persons shown to her. She later made an eyewitness identification of the defendant at a session of court dealing with traffic offenses, after being told that a suspect might be present there.

During the course of the trial, the defendant sought to subpoena Gladstone to offer exculpatory testimony relating to a voice recognition test conducted by the defense in which Gladstone allegedly failed to recognize the voice of the defendant as that of “Mr. Booth.” Gladstone was also expected to relate his recognition of the caller’s voice as that of one of his regular customers rather than that of the defendant. A sheriff was given the subpoena to be personally served. He was met at Gladstone’s residence by Gladstone and an unidentified female. Gladstone refused to allow the sheriff inside the door, thereby preventing the sheriff from placing the subpoena in his hand. The sheriff read the subpoena aloud in Gladstone’s presence and handed it to his female companion along with the required witness fees. The sheriff then filed a return describing the manner of service. Gladstone failed to appear in court in response to the subpoena.

On the basis of these facts, the defendant requested that the trial court issue a capias in accordance with General Statutes § 52-143 (d). It denied the request, stating that it was without authority to issue a capias because the subpoena was not placed in Gladstone’s hands and was, therefore, improperly served.*

Section 52-143 of the General Statutes provides for the service of a subpoena, and provides sanctions against a proposed witness for failure to appear in court on the day and time designated in the subpoena. The trial court is empowered “on proof of the service of a subpoena and the tender of [witness] fees, [to] issue a capias directed to some proper officer to arrest the witness and bring him before the court to testify.” General Statutes § 52-143 (d).

The issuance of a capias is not mandatory, and lies within the discretion of the trial court. DiPalma v. Wiesen, 163 Conn. 293, 298, 303 A.2d 709 (1972). If, however, a witness is not warranted in refusing to honor a subpoena and his absence will cause a miscarriage of justice, the court should issue a capias. Id. In the present case, the court never exercised any discretion because it believed its authority to do so was lacking. It is clear that the court had the power, if the witness had actually been served and refused to appear, to issue a capias. See State v. Frye, 182 Conn. 476, 483, 438 A.2d 735 (1980).

It is the state’s argument that General Statutes § 52-143 (d) requires in-hand service because of the statutory words “upon whom a subpoena is served.” The statute does not use the words “personal service,” or the words “in-hand service.” Acceptance of the state’s insistence upon such a strict reading of the quoted words would render it virtually impossible to effect service upon a witness who is determined to be recalcitrant or determined to insulate himself from a court appearance. Service of a subpoena “upon” a person does not require physical acceptance of it, if the person is given notice of it and its contents. See 97 C.J.S., Witnesses § 23.

This interpretation of the quoted words comports with the service of civil process, which may be by either abode or manual service. See General Statutes § 52-54; Weil v. Miller, 185 Conn. 495, 441 A.2d 142 (1981); Gluck v. Gluck, 181 Conn. 225, 435 A.2d 35 (1980).

Further, the defendant, in seeking the capias, was, in effect, raising a constitutional right, the right to compulsory process. See U.S. Const., amend VI; Conn. Const., art. I § 8. The word “upon” as used in General Statutes § 52-143 (d) should not be read literally when to do so would diminish or contravene a constitutional right.

The trial court erred when it ruled it had no power to issue a capias because of the admitted lack of in-hand service of the intended witness. In view of the defendant’s alibi defense, and the circumstances surrounding the pretrial identification of the defendant by the victim, the expected testimony of the witness that Mr. Booth’s voice was that of a regular customer of the massage service rather than that of the defendant, looms as a large exculpatory element in the trial of the defendant. The error has not been shown by the state to be harmless beyond a reasonable doubt. State v. Cohane, 193 Conn. 474, 484-85, 479 A.2d 763, cert. denied, 469 U.S. 990, 105 S. Ct. 397, 83 L. Ed. 2d 331 (1984).

The resolution of this issue disposes of the defendant’s appeal, making it unnecessary to consider the defendant’s second claim of error. The claim arose because of a tactical decision of the defendant’s former trial counsel. The defendant was asked on direct examination whether he had ever been arrested for a crime in the nature of rape. The defendant replied that he had not. On cross-examination, the prosecutor asked the defendant about all of his arrests. The trial court overruled the defendant’s objection to the question. The defendant’s present counsel indicated at oral argument that he would not use the same tactic again. It is, therefore, unlikely that the claim will recur.

There is error, the judgment of conviction is set aside and a new trial is ordered.

In this opinion the other judges concurred.

       The trial court refused to allow the defendant to offer proof of Gladstone’s expected testimony in the absence of a sworn statement by the proposed witness. It was not until argument on the defendant’s motion for a new trial which was heard prior to sentencing that defense counsel was permitted to offer proof of Gladstone’s expected testimony.

       Since the trial court ruled, in effect, that the service of the subpoena was defective for purposes of issuing a capias, the issue of whether the witness had a reasonable excuse for his failure to appear and testify was never reached. The facts as alleged in the return of service of the subpoena were accepted as true by the trial court for purposes of its ruling and the subpoena was marked for identification.

       General Statutes § 52-143 (d) provides in pertinent part: “[I]f any . . . person upon whom a subpoena is served to appear and testify in a cause pending before any court . . . fails to appear and testify, without reasonable excuse, he shall be fined . . . and the court ... on proof of the service of a subpoena . . . may issue a capias . . . .”

       Evidence of an arrest without a conviction is inadmissible to impeach a witness’ credibility, absent its being within the scope of direct examination. Penfield v. Venuti, 589 F. Sup. 250, 253 n.1 (D. Conn. 1984); see State v. Anonymous, 34 Conn. Sup. 656, 658-59, 384 A.2d 386 (1978).