author: LANDAU, J. LAVERY, J.,

text:
    MARY ELLEN MURPHY v. COMMISSIONER OF MOTOR VEHICLES
    (AC 17906)
    Lavery, Landau and Dupont, Js.
    Argued March 3
    officially released July 6, 1999

      Barry N. Silver, for the appellant (plaintiff).

      Priscilla J. Green, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (defendant).
   Opinion

LANDAU, J.

The plaintiff, Mary Ellen Murphy, appeals from the judgment of trial court dismissing her appeal from the administrative decision of the defendant commissioner of motor vehicles (commissioner) suspending her right to operate a motor vehicle for six months pursuant to General Statutes § 14-227b. The plaintiff claims that the trial court improperly (1) concluded that the police officer had probable cause to arrest her for operating a motor vehicle while under the influence of intoxicating liquor, (2) held that the hearing officer’s written decision was not defective in that the decision contained merely a recitation of the four standard issues enumerated in § 14-227b without any further findings of fact and conclusions of law and (3) concluded, independently, that she operated the vehicle.

The following undisputed facts are pertinent to our resolution of this appeal. On September 9, 1996, the plaintiff was driving a motor vehicle on Spruce Bark Road in Hamden, which runs adjacent to the Mill River. She saw some particularly scenic trees by the river and decided to stop and take some photographs. She parked the car, shut off the motor, removed the keys from the ignition and walked to the trees. Sometime thereafter, while she was taking photographs, she heard a noise and observed her vehicle rolling down the embankment into the Mill River. The plaintiff went to a neighboring house to summon help and took some medication to calm herself. At approximately 7:43 p.m., Officer E. J. Cicero of the Hamden police department was dispatched to the location and met the plaintiff. He detected the odor of alcohol on the plaintiffs breath and observed her stagger as she stood and walked. She denied drinking alcohol and stated that she was on medication. Cicero asked the plaintiff to perform field sobriety tests and, on the basis of her performance, arrested and transported her to the Hamden police station. The plaintiff refused to consent to a breath test for blood alcohol when asked.

The plaintiff claims that the evidence was insufficient to support the finding that probable cause existed for Cicero to arrest her for violating General Statutes § 14-227a. We agree.

“Judicial review of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency’s findings of basic fact and whether the conclusions drawn from those facts are reasonable. . . . The determination of whether substantial evidence exists is subject to de novo review by this court. . . . Substantial evidence exists if the administrative record demonstrates a substantial basis of fact from which the fact in issue can be reasonably inferred.” (Citations omitted; internal quotation marks omitted.) Labenski v. Goldberg, 33 Conn. App. 727, 732-33, 638 A.2d 614 (1994). “If the defendant’s determination to suspend the plaintiffs license pursuant to General Statutes §14-227b is supported by substantial evidence in the record, that determination must be sustained.” O’Rourke v. Commissioner of Motor Vehicles, 33 Conn. App. 501, 507, 636 A.2d 409, cert. denied, 229 Conn. 909, 642 A.2d 1205 (1994).

The commissioner claims that the officer had probable cause to arrest the plaintiff based on the following facts. The arresting officer was dispatched to investigate a motor vehicle accident. The plaintiff told the officer that she had driven to the embankment, stopped and exited the motor vehicle while it was in gear. The vehicle rolled down an embankment into a river. An odor of alcohol came from the plaintiffs breath as the officer spoke with her. She staggered as she stood and walked and her speech was slurred and her eyes glassy and bloodshot. She denied having drunk any intoxicating liquor and stated that she was heavily medicated. She failed two field sobriety tests.

The plaintiff does not claim, as the commissioner asserts, “that the record is devoid of evidence that she operated the vehicle.” Her claim is that the officer, to establish probable cause for the offense, must have data that she was under the influence of liquor or drugs at the time she operated the motor vehicle. It is essential that the evidence before the officer include a temporal nexus between the plaintiffs operation of the motor vehicle and her being under the influence of liquor or drugs. The evidence, of course, need demonstrate only probable cause to establish a connection between drinking and operating the vehicle. “Probable cause exists when the facts and circumstances within the knowledge of the officer and of which he has reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution to believe that [an offense] had been committed.” (Internal quotation marks omitted.) State v. Torres, 182 Conn. 176, 189, 438 A.2d 46 (1980). Although the police officer may draw any reasonable, logical inferences from the facts observed, he may not resort to mere speculation or conjecture, particularly here, where there is no evidence of a temporal nexus between liquor and operation. We conclude, on the basis of the facts presented, that the officer lacked probable cause to arrest the plaintiff.

Because our resolution of the plaintiffs first claim is dispositive of her appeal, we need not address her remaining claims.

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

In this opinion DUPONT, J., concurred.

LAVERY, J.,

dissenting. I respectfully dissent from the majority’s opinion, which reverses the trial court’s dismissal of the plaintiffs appeal taken from an administrative decision of the defendant commissioner of motor vehicles.

I would conclude that the arresting police officer had more than sufficient evidence to warrant a person of reasonable caution to believe that the plaintiff had been operating her motor vehicle while under the influence of alcohol. The trial court and the motor vehicle hearing officer had the full report of the arresting officer when each determined that the arresting officer had probable cause to arrest the plaintiff for driving while under the influence of alcohol.

The report stated that the officer drove to Spruce Banks Road to investigate an accident. Upon his arrival, the officer met the plaintiff, who stated that she was driving her car west on Ives Street when she stopped on Spruce Banks Road to take a photograph. The plaintiff stated that she exited her vehicle, left the vehicle in gear and, thereafter, the vehicle rolled down the embankment into the Mill River. The officer smelled alcohol on the plaintiffs breath, observed her stagger as she stood and walked, and noticed that her eyes were glassy and bloodshot. The officer asked the plaintiff to submit to several field sobriety tests. She failed both the horizontal gaze nystagmus test and the alphabet test, and she refused to take the walk and turn test and the one leg stand test because she claimed that she had sustained injuries in a previous accident. The plaintiff informed the officer that she had not been drinking, but that she was heavily medicated. The report states that Phoebe Styron, the occupant of the home where the defendant sought help, also smelled alcohol on the plaintiffs breath. The report also discloses that the plaintiff later admitted that she had consumed wine that day from 2 to 2:30 p.m.

On the basis of the facts from the officer’s report, which was included in the administrative record of the commissioner of motor vehicles, there was probable cause for a reasonable person to believe that the plaintiff had been operating her vehicle while under the influence of alcohol. “Probable cause is a common sense, nontechnical concept. Probable cause exists when there are facts and circumstances within the officer’s knowledge, and of which he has trustworthy information, sufficient to justify the belief of a reasonable person that an offense has been or is being committed. . . . The probable cause test then is an objective one. . . . While probable cause requires more than mere suspicion . . . the line between mere suspicion and probable cause is often fine and that line necessarily must be drawn by an act of judgment formed in the light of the particular situation and with account taken of all the circumstances. . . . The process [of determining probable cause] does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common-sense conclusions about human behavior; jurors as factfinders are permitted to do the same—and so are law enforcement officers. Finally, the evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement. . . . We also note that the issue of the existence of probable cause does not turn on whether the defendant could have been convicted on the same available evidence. Probable cause deals with probabilities, not hard certainties. . . . State v. Pierog, 33 Conn. App. 107, 115-16, 634 A.2d 301 (1993).” (Internal quotation marks omitted.) State v. Leary, 51 Conn. App. 497, 500-501, 725 A.2d 328 (1999).

The plaintiffs admission that she had operated the vehicle, the detection of alcohol on her breath by both the officer and the witness who had assisted the plaintiff, her denial of drinking coupled with her later admission that she had consumed a quantity of wine earlier in the afternoon, her staggering, her glassy eyes and slurred speech, her failure of the two field sobriety tests and her allowing the vehicle to roll into the river provided the officer with probable cause to arrest the plaintiff for operating a motor vehicle while under the influence of alcohol. I would therefore affirm the judgment of the trial court.

       General Statutes § 14-227b provides in relevant part: “(a) Any person who operates a motor vehicle in this state shall be deemed to have given his consent to a chemical analysis of his blood, breath or urine and, if said person is a minor, his parent or parents or guardian shall also be deemed to have given his consent.
      “(b) If any such person, having been placed under arrest for operating a motor vehicle while under the influence of intoxicating liquor or any drug or both or while his ability to operate such motor vehicle is impaired by the consumption of intoxicating liquor, and thereafter, after being apprised of his constitutional rights, having been requested to submit to a blood, breath or urine test at the option of the police officer, having been afforded a reasonable opportunity to telephone an attorney prior to the performance of such test and having been informed that his license or nonresident operating privilege may be suspended in accordance with the provisions of this section if he refuses to submit to such test or if he submits to such test and the results of such test indicate that the ratio of alcohol in his blood was ten-hundredths of one per cent or more of alcohol, by weight, and that evidence of any such refusal shall be admissible in accordance with subsection (f) of section 14-227a and may be used against him in any criminal prosecution, refuses to submit to the designated test, the test shall not be given; provided, if the person refuses or is unable to submit to a blood test, the police officer shall designate the breath or urine test as the test to be taken. The police officer shall malee a notation upon the records of the police department that he informed the person that his license or nonresident operating privilege may be suspended if he refused to submit to such test or if he submitted to such test and the results of such test indicated that the ratio of alcohol in his blood was ten-hundredths of one per cent or more of alcohol, by weight.
      “(c) If the person arrested refuses to submit to such test or analysis or submits to such test or analysis, commenced within two hours of the time of operation, and the results of such test or analysis indicate that the ratio of alcohol in the blood of such person is ten-hundredths of one per cent or more of alcohol, by weight, the police officer, acting on behalf of the Commissioner of Motor Vehicles, shall immediately revoke and take possession of the motor vehicle operator’s license or, if such person is a nonresident, suspend the nonresident operating privilege of such person, for a twenty-four-hour period and shall issue a temporary operator’s license or nonresident operating privilege to such person valid for the period commencing twen1y-four horns after issuance and ending thirty days after the date such person received notice of his arrest by the police officer. The police officer shall prepare a written report of the incident and shall mail the report together with a copy of the completed temporary license form, any operator’s license taken into possession and a copy of the results of any chemical test or analysis to the Department of Motor Vehicles within three business days. The report shall be made on a form approved by the Commissioner of Motor Vehicles and shall be subscribed and sworn to under penalty of false statement as provided in section 53a-157b by the arresting officer. If the person arrested refused to submit to such test or analysis, the report shall be endorsed by a third person who witnessed such refusal. The report shall set forth the grounds for the officer’s belief that there was probable cause to arrest such person for operating a motor vehicle while under the influence of intoxicating liquor or any drug or both or while his ability to operate such motor vehicle is impaired by the consumption of intoxicating liquor, and shall state that such person had refused to submit to such test or analysis when requested by such police officer to do so or that such person submitted to such test or analysis, commenced within two hours of the time of operation, and the results of such test or analysis indicated that the ratio of alcohol in the blood of such person was ten-hundredths of one per cent or more of alcohol, by weight. ...”

       She was recovering from recent surgery and hospitalization.

       General Statutes § 14-227a (a) provides: “No person shall operate a motor vehicle while under the influence of intoxicating liquor or any drug or both. A person commits the offense of operating a motor vehicle while under the influence of intoxicating liquor or any drug or both if he operates a motor vehicle on a public highway of this state or on any road of a district organized under the provisions of chapter 105, a purpose of which is the construction and maintenance of roads and sidewalks, or on any private road on which a speed limit has been established in accordance with the provisions of section 14-218a, or in any parking area for ten or more cars or on any school property (1) while under the influence of intoxicating liquor or any drug or both or (2) while the ratio of alcohol in the blood of such person is ten-hundredths of one per cent or more of alcohol, by weight.”

       We are cognizant of the dissent’s position that Cicero had probable cause to arrest the defendant. The dissent, however, has failed to identify any evidence in the record as to when the accident occurred, when the defendant went to ask for help, when the police were summoned or when Cicero arrived at the scene. The only evidence of time in the record is that the defendant admitted to drinking wine between 2 and 2:30 p.m. on the day of the accident.


source: Caselaw Access Project

author: STOUGHTON, J.

license: Public Domain

text:
    FLEET NATIONAL BANK, TRUSTEE v. ZONING BOARD OF APPEALS OF THE TOWN OF WINCHESTER
    (AC 18262)
    Landau, Spear and Stoughton, Js.
    Argued March 15
    officially released July 6, 1999

      Kevin F. Nelligan, for the appellant (defendant).

      Scott A. Bennett, with whom was H. James Stedronsky, for the appellee (substitute plaintiff).
   Opinion

STOUGHTON, J.

The defendant zoning board of appeals of the town of Winchester (board) appeals from the judgment of the trial court sustaining the appeal of the plaintiff, Fleet National Bank (Fleet Bank), as trustee for the estate of Cameron A. Reaud, from the board’s decision denying Fleet Bank’s application to modify a previously granted variance. Fleet Bank’s application sought to remove conditions that had been attached to the variance by the board. The board claims on appeal that the trial court improperly (1) concluded that the standard a zoning board should apply in determining whether to grant an application to modify a variance by removing the attached conditions is whether there is a material change in circumstances and not the land use hardship standard applicable to variance requests, (2) concluded that the super-majority requirement of General Statutes § 8-7 does not apply to an application to modify a variance by removing the attached conditions and (3) failed to search the record to find whether the board’s decision was supportable under either standard. We reverse the judgment of the trial court.

The record reveals the following relevant facts. The parcel of property that is the subject of this appeal is owned by the estate of Cameron A. Reaud and held in trust by Fleet National Bank, as trustee, for the benefit of the Episcopal Church. The subject parcel is located at 500 East Wakefield Boulevard in Winsted. The property consists of 12,830 square feet, .295 acres, and is located in the Highland Lake District. The parcel is bordered to the north and south by year-round residences and to the east and west by Highland Lake and East Highland Boulevard, respectively. The parcel has 82.29 feet of frontage on East Highland Boulevard, over 175 feet bordering on adjacent properties and narrows to 62.27 feet at the rear of the property, which abuts Highland Lake. The Highland Lake zoning regulations require a thirty-five foot side yard setback.

On November 23,1993, the board granted Fleet Bank a variance with respect to the thirty-five foot minimum side yard setback requirement. The variance permitted reductions of nine and one-half feet and twelve feet in the minimum setback requirements on the north and south sides of the parcel, respectively. In granting the variance, however, the board imposed conditions limiting the building of any structure on the property to a seasonal cottage of not more than 640 square feet.

Fleet Bank attempted to sell the property to distribute the proceeds of the sale to the beneficiary of the trust, but claimed that it was unable to do so for a satisfactory price because of the attached conditions. On February 21,1997, Fleet Bank filed an application for a modification of the variance, seeking to remove the conditions from the variance.

After two properly noticed public hearings on March 25 and April 22, 1997, the board voted three to two in favor of a motion to retain the previously granted side yard setback reductions but to remove the size and use conditions from the variance. The motion was unsuccessful, however, because the three to two vote did not satisfy the requirements of § 8-7. The board cited “no land use hardship” as the reason for denying Fleet Bank’s motion.

Fleet Bank successfully appealed to the trial court from the denial of its application to the board. Fleet Bank claimed, and the court agreed, that a material change in circumstances had arisen since the board originally imposed the conditions because all of the properties on East Wakefield Boulevard were, at the time of Fleet Bank’s new application, required to connect with the municipal sewer system. Fleet Bank argued that there was no longer a need to distinguish between the seasonal and year-round dwellings with respect to their environmental impacts on Highland Lake.

The trial court reversed the board’s decision, concluding that the board had improperly required Fleet Bank to demonstrate a land use hardship to secure removal of the variance conditions and that only a simple majority vote was needed to approve Fleet Bank’s application. The trial court further concluded that the correct standard governing applications to modify a variance by removing an attached condition is whether a material change in circumstances exists, rather than the existence of a land use hardship.

In reaching its conclusion concerning the inapplicability of § 8-7 to this case, the trial court reasoned that because § 8-7 does not specifically cite applications to remove conditions attached to variances, the board abused its discretion in denying the application, which would have otherwise passed by a simple majority. The trial court relied on Caseria v. Zoning Board of Appeals, Superior Court, judicial district of Fairfield, Docket No. 312301 (June 12, 1995) (14 Conn. L. Rptr. 407), in concluding that the correct standard of review to be applied to an application to modify a variance by removing attached conditions was whether there has been a material change in circumstances that has made the condition unreasonable. The trial court finally concluded that the board’s failure to employ the correct legal standard in denying Fleet Bank’s application to modify the variance warranted reversal. This appeal followed.

As a threshold matter, we note that “[ljocal zoning boards are vested with a liberal discretion. ... A trial court must, however, review the decision of a zoning board of appeals to determine if the board acted arbitrarily, illegally or unreasonably.” (Citation omitted.) Wnuk v. Zoning Board of Appeals, 225 Conn. 691, 695-96, 626 A.2d 698 (1993). Additionally, our review of conclusions of law is plenary and we must decide whether the conclusions are legally and logically correct and supported by the facts in the record. State v. Velasco, 248 Conn. 183, 189, 728 A.2d 493 (1999).

The board claims that the trial court improperly concluded that the standard of review applicable to an application to modify a variance by removing attached conditions is a material change in circumstances rather than the land use hardship standard applicable to variance requests. We agree.

Our Supreme Court has interpreted General Statutes § 8-6 “to authorize a zoning board of appeals to grant a variance only when two basic requirements are satisfied: (1) the variance must be shown not to affect substantially the comprehensive zoning plan, and (2) adherence to the strict letter of the zoning ordinance must be shown to cause unusual hardship unnecessary to the carrying out of the general purpose of the zoning plan. . . . Grillo v. Zoning Board of Appeals, 206 Conn. 362, 368, 537 A.2d 1030 (1988); Smith v. Zoning Board of Appeals, 174 Conn. 323, 326, 387 A.2d 542 (1978).” (Internal quotation marks omitted.) Bloom v. Zoning Board of Appeals, 233 Conn. 198, 207, 658 A.2d 559 (1995). Additionally, zoning boards of appeals may grant variances subject to reasonable conditions. Burlington v. Jencik, 168 Conn. 506, 509, 362 A.2d 1338 (1975). Such conditions are “inextricably linked, the viability of the variance being contingent upon the satisfaction of the conditions.” Id., 510.

Fleet Bank does not claim unusual or undue hardship. It merely claims that the circumstances have changed so that the conditions are now unreasonable and that they were not an integral part of the zoning authority’s decision to grant the variance. Fleet Bank claimed, and the trial court agreed, that the conditions were imposed in order to limit further contamination of Highland Lake by year round use of septic systems. That assertion, however, is speculation because our review of the record reveals that the record does not contain a transcription of the minutes of the agency’s meeting when the original application for a variance was considered and granted with conditions. The record does, however, contain the minutes of the meetings at which the request for removal of the conditions was considered. Those minutes indicate that when the variance was granted, the board wanted to allow Fleet Bank to have some use ol‘ the property. The board, however, decided to limit the use and size of any structure that could be built on the property to a seasonal cottage of no more than 640 square feet because the long, narrow shape of property meant that any structure would have close proximity to the abutting properties. The conditions were thus an integral part of the board’s decision to grant the variance and, therefore, inextricably linked to the variance. The minutes also indicate that it was known at the time the variance was granted in 1993 that sewers were being constructed in the area. Thus, the record does not establish that the conditions were imposed because there was no sewer system.

We conclude that the viability of the 1993 variance that the board granted to Fleet Bank was dependent on the conditions imposed and that any application to remove the conditions so affected the variance as to require a showing of hardship. Pursuant to Bloom v. Zoning Board of Appeals, supra, 233 Conn. 207, the land use hardship standard was properly applied by the board in rejecting Fleet Bank’s application to modify the variance by removing the attached conditions.

Because the board properly applied the land use hardship standard, pursuant to § 8-7, four votes were necessary to approve the application. The board’s rejection of the application for failure to secure four votes was not arbitrary, illegal or unreasonable.

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

In this opinion the other judges concurred.

       On October 6, 1998, James H. Gould III was substituted as plaintiff in this case.

       We note that the briefs submitted by the parties and the trial court,’s memorandum of decision indicate that the variance was granted on January 23,1993. Our review of the record reveals, however, that the board’s notification of decision states that the variance was granted to Fleet Bank on November 23, 1993.

       Pursuant to § 1.6a of Winchester’s town zoning regulations, a seasonal cottage is one that has a minimum size of 500 square feet and may not be occupied for more than thirty days between October 15 and May 1 in any given year.

       On August 27, 1998, James FI. Gould III purchased the property for $57,500.

       General Statutes § 8-7 provides in relevant part: “The concurring vote of four members of the zoning board of appeals shall be necessary to reverse any order, requirement or decision of the official charged with the enforcement of the zoning regulations or to decide in favor of the applicant any matter upon which it is required to pass under any bylaw, ordinance, rule or regulation or to vary the application of the zoning bylaw, ordinance, rule or regulation. . . .”

       General Statutes § 8-6 (a) provides in relevant part: “The zoning board of appeals shall have the following powers and duties ... (3) to determine and vary the application of the zoning bylaws, ordinances or regulations in harmony with their general purpose and intent and with due consideration for conserving the public health, safety, convenience, welfare and property values solely with respect to a parcel of land where, owing to conditions especially affecting such parcel but not affecting generally the district in which it is situated, a literal enforcement of such bylaws, ordinances or regulations would result in exceptional difficulty or unusual hardship so that substantial justice will be done and the public safety and welfare secured, provided that the zoning regulations may specify the extent to which uses shall not be permitted by variance in districts in which such uses are not otherwise allowed. . . .”

       See footnote 5.

       Our resolution of the board’s first two claims renders unnecessary any discussion of its third claim.


author: FOTI, J.

text:
    SANDRA B. BILLINGS v. GEORGE W. BILLINGS III
    (AC 18187)
    O’Connell, C. J., and Foti and Spear, Js.
    Argued April 20
    officially released July 6, 1999

      Brock T. Dubin, for the appellant (defendant).

      Alice C. Mack, for the appellee (plaintiff).
   Opinion

FOTI, J.

The defendant, George W. Billings III, appeals from the judgment of the trial court denying his motions for contempt and modification and granting the plaintiffs motion for contempt. The defendant claims that the trial court improperly (1) calculated the value of his interest in the marital home, (2) determined that his obligation to maintain life insurance was a property settlement and not alimony, (3) denied his motion for modification and (4) found him in wilful contempt. We reverse in part and affirm in part the judgment of the trial court.

The following facts are relevant to this appeal. The plaintiff and the defendant were married in 1967 and have two children. The defendant was an attorney in Norwalk and a partner in the law firm of Billings & Reid until 1985, when he suffered a stroke severely limiting his earning capacity.

On November 7, 1986, the trial court rendered a judgment of legal separation. The judgment awarded both parties $1 per year as alimony. The judgment further specified that the marital home was to be sold and the proceeds divided as follows: “The plaintiff may continue to occupy the marital home until June 1, 1992, at which time the real estate shall be placed on the market for sale. . . . The price shall be by agreement and failing agreement, a court of competent jurisdiction shall fix the price and other terms of sale. Upon sale, after payment of the mortgage, broker’s fees and closing costs, the net proceeds shall be divided seventy-five percent (75%) to Plaintiff and twenty-five percent (25%) to Defendant.”

The judgment also provided: “The defendant shall keep three life insurance policies in force naming Plaintiff as primary beneficiary of $ 100,000.00 and naming the two children as primary beneficiaries of the remaining $150,000.00. He shall furnish proof to Plaintiff that the policies are in force with the beneficiaries maintained, as to Plaintiff unless she dies remarries or cohabits and as to the minors until they are both eighteen (18) years of age.”

A stipulation to modify the judgment entered into on February 12,1988, provides: “From the first date of the payment on the mortgages, after the Judgment rendered in the above-entitled matter, the plaintiff shall be entitled to a credit for the principal reduction on said mortgages at the time the property is to be sold and the net proceeds divided.” The stipulation also extended the date by which the marital home must be sold until September 1, 1996. The stipulation also provided that the defendant name the children as beneficiaries on the life insurance only “until the last child completes his or her post high school education.” Additional facts will be set forth where necessary.

I

The defendant claims that the trial court improperly calculated the value of his interest in the marital home. We agree.

“Before turning to the merits of the parties’ arguments, we first set forth principles that will assist us in resolving this issue. To begin, it is well settled that judicial review of a trial court’s exercise of its broad discretion in domestic relations cases is limited to the questions of whether the court correctly applied the law and could reasonably have concluded as it did. . . . It is the sole province of the trial court to weigh and interpret the evidence before it and to pass upon the credibility of witnesses.” (Citations omitted; internal quotation marks omitted.) W. v. W., 248 Conn. 487, 495, 728 A.2d 1076 (1999).

The trial court found the following facts. “In January, 1994, the parties agreed to refinance the marital home. On January 14, 1994, the [defendant] quitclaimed his interest in the home to the [plaintiff] and the [plaintiff] paid the [defendant] $15,000 as an advance on his 25 percent interest. By letter dated August 25, 1996, the [defendant] advised the [plaintiff] she owed him $28,833.80 for his 25 percent interest. The [plaintiff] replied, in a letter to him dated September 6, 1996, that she was owed $4664.79, according to her mathematical calculations.” In 1996, at the time the plaintiff was to sell the marital home, it had a stipulated value of $220,000. The house was encumbered by two mortgages.

While both parties utilized different methods to compute the value of the interest in the property, the court utilized yet a third method holding: “The plain language in the judgment requires payment of the mortgages, which totaled $44,644.79, before the 75 percent-25 percent split in the net proceeds is computed. This amount must first be deducted from the agreed market value of $220,000, which leaves a net balance of $175,335.21. The [plaintiffs] 75 percent net share amounts to $131,501.41, and the [defendant’s] 25 percent net share amounts to $43,833.80, afterpayment of the mortgages.” We agree with the trial court’s calculations up to this point in its analysis. We conclude, however, that the trial court miscalculated the value of the parties’ interests and misinterpreted the judgment and stipulation.

The stipulation states: “From the first date of the payment on the mortgages, after the Judgment rendered in the above-entitled matter, the plaintiff shall be entitled to a credit for the [principal] reduction on said mortgages at the time the property is to be sold and the net proceeds divided.” (Emphasis added.) We must determine if the trial court properly interpreted the language of the stipulation. The stipulation is essentially a contract between the defendant and the plaintiff. It is axiomatic that where the parties do not define a term, we look to the plain meaning of the words. “Credit” is defined as “the acknowledgement of payment on a debt by entry of the amount in an account”; Webster’s New World Dictionary (2d Ed.); or “a sum deducted (from an account owed) or added (as to a bank account) in making an adjustment.” Id. “Credit” also has been defined as “a component of a journal entry which increases revenues, liabilities, and equity; and decreases assets and expenses.” Black’s Law Dictionary (6th Ed. 1990). The term “credit” clearly refers to mortgage payments made by the plaintiff. It does not connote that the plaintiff can receive a bonus or other remuneration for amounts she has not paid.

The trial court held that the plaintiff was entitled to an additional credit of $24,039.21, the amount that she testified as having paid on the mortgage from December, 1986, through January, 1994. The trial court deducted the $24,039.21 from the $28,833.80 that the defendant claims is his proper share of the marital home. Thereby, the trial court awarded the defendant $4794.59. We fail to see the logic in the trial court’s calculations. The trial court, in essence, gave the plaintiff credit for the payment of the two mortgages totaling $44,664.79, to which she is clearly entitled. The trial court also gave the plaintiff credit for an additional $24,039.21, which has already been included in the original deduction of $44,664.79. Both parties’ calculations take into account the mortgage payments of $44,664.79, which ar e the total payments on the mortgages from 1986 to 1996. Neither party’s original calculations considered reducing the defendant’s share by an additional $24,039.21. In fact, at oral argument, the plaintiff admitted that she was, in essence, receiving a “double credit” in the form of the additional $24,039.21. We conclude that the trial court’s interpretation of the stipulation was incorrect.

The plaintiffs calculation is incorrect because it calculates the defendant’s share of the property before deducting the mortgage payments as required in paragraph six of the judgment. Accordingly, we conclude that the defendant’s calculation is correct and reject the trial court’s calculation, as it is unsupported by the language of the judgment and stipulation. The defendant is entitled to $28,833.80 representing the balance of his 25 percent share of the marital home.

II

The defendant next claims that the trial court (1) did not have the authority to determine that the insurance policy was part of a property settlement and (2) improperly determined that the defendant’s obligation to maintain a life insurance policy for the benefit of the plaintiff was intended as a property settlement and therefore nonmodil'iable. We disagree.

A

The defendant’s claim that the trial court lacked authority to decide, sua sponte, that the insurance policy was part of a property settlement must fail.

General Statutes § 46b-86 (a) specifically allows for the modification only of “alimony or support or an order for alimony or support pendente lite . . . .’’It further states that the trial court does not have the authority to modify a property settlement entered into pursuant to § 46b-81. Section 46b-86 (a) gives the trial court only limited jurisdiction to modify a judgment. “By its terms, the statute deprives the Superior Court of continuing jurisdiction over that portion of a dissolution judgment providing for the assignment of property of one party to the other party under General Statues § 46b-81.”Bunche v. Bunche, 180 Conn. 285, 289, 429 A.2d 874 (1980); see also Woodward v. Woodward, 44 Conn. App. 99, 101, 686 A.2d 1010 (1997); Croke v. Croke, 4 Conn. App. 663, 665, 496 A.2d 235 (1985). “The terms of § 46b-86 (a) cannot be expanded to include matters beyond the court’s jurisdiction.” (Internal quotation marks omitted.) Miner v. Miner, 48 Conn. App. 409, 415, 709 A.2d 605 (1998).

“[W]hen the absence of jurisdiction is brought to the attention of the court, cognizance of that fact must be taken and the matter determined before it can proceed further in the case. ... In whatever manner such an issue comes to the attention of a court, it must be addressed, even if the court must act sua sponte in order to do so.” (Citation omitted; internal quotation marks omitted.) Pinder v. Pinder, 42 Conn. App. 254, 258, 679 A.2d 973 (1996). The determination of whether the insurance policy was or was not part of a property settlement invokes the jurisdiction of § 46b-86 (a). The trial court does have the authority to determine, sua sponte, whether an award falls within the scope of § 46b-86 (a).

Having concluded that the trial court did have the authority to decide that the insurance policy was part of a property settlement, we now determine if it properly did so.

B

The defendant claims that the trial court improperly characterized the insurance policy as part of a property settlement. We disagree.

The judgment and stipulation are silent as to whether the insurance policy is a guarantee for alimony as the defendant argues or a property settlement as the plaintiff argues. “When the decree is silent as to the characterization of any order, an analysis of the structure of the dissolution decree is highly instructive; Blake v. Blake, 211 Conn. 485, 497, 560 A.2d 396 (1989); and an ambiguous order should be examined in the context of the entire decree. Viglione v. Viglione, 171 Conn. 213, 216, 368 A.2d 202 (1976). These rules must be viewed against the well recognized principle that because every family situation is unique, the trial court drafting a dissolution decree has wide discretion to make suitable orders to fit the circumstances.” Passamano v. Passamano, 228 Conn. 85, 91, 634 A.2d 891 (1993). “The difference between an assignment of a specific portion of an estate and alimony is in their purposes. Clark, Domestic Relations (1968) § 14.8. The purpose of property assignment is equitably to divide the ownership of the parties’ property. . . . On the other hand, periodic and lump sum alimony is based primarily upon a continuing duty to support.” (Citation omitted; internal quotation marks omitted.) Blake v. Blake, supra, 497-98.

We begin by examining the judgment’s structure. Paragraphs one and three of the judgment specifically deal with the parties’ alimony and support obligations. Paragraph one orders each party to pay $1 a year in alimony. Paragraph three of the judgment provides in relevant part: “The defendant shall continue to deliver the Social Security Disability income to Plaintiff in lieu of a child support order.”

Paragraph five of the judgment awards possession of the marital home to the plaintiff. Paragraph six divides the proceeds from the sale of the marital home. Paragraph seven requires the defendant to maintain the life insurance policies. Paragraphs eight through fifteen each deal with a property interest, i.e., the family car, real estate, the defendant’s IRA account, the plaintiffs pension or stock.

The judgment is structured so that the alimony and support obligations of the parties are dealt with in paragraphs one through four. Beginning in paragraph five, the judgment divides the marital and nonmarital property. There is no further discussion of alimony or support obligations after paragraph four.

The defendant also claims that because the judgment provided for insurance coverage only until the plaintiff “dies, remarries or cohabits,” the award is modifiable. We are not persuaded. The language used in the judgment is similar to the language used to convey a determinable fee. We recognize that the judgment did not create a determinable fee. We are merely looking at the language and comparing it to language used to convey property in fee. The fact that the life insurance policy provision has attached conditions terminating the defendant’s obligation does not mean that it becomes modifiable pursuant to § 46b-86 (a).

The defendant claims that because the stipulation modified his obligation to maintain insurance, the obligation was meant to be modifiable pursuant to § 46b-86 (a). We are not persuaded. There is no aspect of law of which we are aware, nor has the defendant provided any authority, that supports the proposition that two parties cannot, between themselves, modify a property settlement. That, however, does not mean that the trial court may modify it pursuant to § 46b-86 (a).

After reviewing the structure and language of the judgment and the stipulation, we conclude that the trial court properly held that “the $100,000 policy was intended as a property settlement to benefit the [plaintiff] made pursuant to § 46b-81; therefore this award is nonmodifiable. ”

III

The defendant next claims that the trial court improperly denied his motion for modification, filed pursuant to § 46b-86 (a), requesting termination of his obligation to maintain life insurance for the benefit of the plaintiff. We disagree.

Section 46b-86 (a) specifically allows for the modification of only “alimony or support or an order for alimony or support pendente lite . . . .” Because we concluded in part II that the trial court properly characterized the life insurance policy as a property settlement, and not as alimony, we conclude that the trial court was without jurisdiction to modify the order and properly denied the defendant’s motion for modification.

IV

The defendant claims that the trial court improperly found him in wilful contempt for failing to maintain a life insurance policy naming the plaintiff as beneficiary. We disagree.

“Contempts of court may be classified as either direct or indirect, the test being whether the contempt is offered within or outside the presence of the court. . . . The defendant’s failure to comply with the support order is, therefore, an indirect contempt because it occurred outside the presence of the trial court.

“[A] finding of indirect civil contempt must be established by sufficient proof that is premised upon competent evidence presented to the trial court in accordance with the rules of procedure as in ordinary cases.” (Citations omitted; internal quotation marks omitted.) Sgarellino v. Hightower, 13 Conn. App. 591, 595-96, 538 A.2d 1065 (1988). A finding of contempt is a factual finding. Bunche v. Bunche, 36 Conn. App. 322, 324, 650 A.2d 917 (1994). We will reverse that finding only if we conclude the trial court abused its discretion. Id., 325.

The trial court found: “There was no evidence that any of the conditions necessary to discontinue the $100,000 life insurance policy which benefitted the wife . . . had occurred. . . . [The defendant] was able to maintain a total of $250,000 of life insurance from 1986 to 1996. He was able to pay the premiums during the time his son Derek attended college from 1992 to 1996 when his earning capacity was limited to earning $3500 a year. He stopped paying the premiums on the $ 100,000 policy unilaterally in 1996 without ever notifying the wife. He estimates his earnings as an attorney in 1997 to be about $7500. Furthermore, his financial affidavit on file lists a home in Vermont valued at $180,000 which is unencumbered.”

The defendant now claims that he stopped paying the premiums on the life insurance policy because he could not afford the payments. He also claims that he is now uninsurable because of his disabling condition. The defendant claims that in order for him to obtain insurance, he would have to pay premiums of $9600 per year as opposed to the $1400 per year that he was paying, yet the trial court did not make this factual finding. The trial court specifically found that the defendant was able to pay his premiums when his income was only $3500 per year. The defendant, as the trial court found, unilaterally allowed the policy to lapse. There is no evidence that he made any effort to inform the plaintiff or the trial court that the policy was going to lapse. He did not file a motion for modification until after the policy had lapsed. The judgment specifically stated that the defendant was to maintain the policy and provide proof of its effect to the plaintiff. He failed to do so.

The fact that the defendant now claims financial hardship did not create an “inability of a party to obey an order of the court, without fault on his part . . . .” Mallory v. Mallory, 207 Conn. 48, 57, 539 A.2d 995 (1988). We find the defendant’s claim of financial hardship especially troubling because the trial court found that the defendant was able to maintain $250,000 of life insurance on an income of only $3500 a year, but when the defendant’s income increased to $7500 per year, he was not able to maintain only $100,000 of life insurance. There was sufficient evidence to find that the defendant wilfully violated the court order. The trial court did not abuse its discretion in holding the defendant in wilful contempt for failing to maintain the life insurance policy.

The judgment is reversed only as to the calculation and distribution of the value of the parties’ interest in the marital home and the case is remanded with direction to render judgment for the defendant in the amount of $28,833.80. The remainder of the judgment is affirmed.

In this opinion the other judges concurred.

       The defendant’s calculations are as follows:
      Stipulated value of property $220,000.00
      Less payment of first mortgage $33.231.33
      $186,768.67
      Less payment of second mortgage $11.433.46
      $175,335.21
      Less 75 percent to wife $131.501.41
      Equals 25 percent to husband $43,833.80
      Less moneys paid by wife $15.000.00
      Total..................................$28,833.80
      The plaintiffs calculations are as follows:
      Stipulated value of property $220,000.00
      Defendant’s 25 percent interest $55,000.00
      Less principal reduction on first mortgage $33.231.33
      $21,768.67
      Less principal reduction of second mortgage $11.433.46
      $10,335.21
      Less payment on account $15,000,00
      Over payment............................. $4664.79

       General Statutes § 46b-86 (a) provides in relevant part: “Unless and to the extent that the decree precludes modification, any final order for the periodic payment of permanent alimony or support or an order for alimony or support pendente lite may at any time thereafter be continued, set aside, altered or modified by said court upon a showing of a substantial change in the circumstances of either party .... This section shall not apply to assignments under section 46b-81 or to any assignment of the estate or a portion thereof of one party to the other party under prior law. ...”

       General Statutes § 46b-81 (a) provides: “At the time of entering a decree annulling or dissolving a marriage or for legal separation pursuant to a complaint under section 46b-45, the Superior Court may assign to either the husband or wife all or any part of the estate of the other. The court may pass title to real property to either party or to a third person or may order the sale of such real property, without any act by either the husband or the wife, when in the judgment of the court it is the proper mode to cany the decree into effect.”

       Paragraph one of the stipulation provides: “The defendant shall name the children as beneficiaries of his life insurance until the last child completes his or her post high school education. Post high school education shall include graduate or medical school.”


author: LANDAU, J.

text:
    THOMAS J. LATINA v. ADMINISTRATOR, UNEMPLOYMENT COMPENSATION ACT, ET AL.
    (AC 18098)
    Foti, Landau and Stoughton, Js.
    Argued March 30
    officially released July 6, 1999

      Richard T. Sponzo, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Charles A. Overend, assistant attorney general, for the appellant (named defendant).

      Thomas J. Latina, pro se, the appellee (plaintiff), with whom, on the brief, was Sue Ann Shay.

   Opinion

LANDAU, J.

The defendant administrator of the Unemployment Compensation Act, General Statutes § 31-222 et seq., appeals from the judgment of the Superior Court sustaining the plaintiffs appeal from the determination by the employment security board of review (board) that because the plaintiff had engaged in wilful misconduct, he was not entitled to unemployment compensation benefits. The sole issue on appeal is whether the plaintiffs actions constitute wilful misconduct within the meaning of General Statutes (Rev. to 1995) § 31-236, as amended by Public Acts 1995, No. 95-323, § 3. We reverse the judgment of the Superior Court.

A review of the relevant facts, which are undisputed by the parties, facilitates an understanding of the issue in this appeal. As set forth in the Superior Court’s memorandum of decision, the plaintiff worked for the Torrington Company (company), located in Torrington, as a maintenance technician for over twenty-three years until his dismissal on April 25, 1996. Prior to the plaintiffs dismissal, the company disciplined the plaintiff on two occasions for sleeping on the job. On September 6, 1994, the company issued the plaintiff a warning for sleeping on the job. Thereafter, in July, 1995, the company issued the plaintiff a two month suspension from work after finding him asleep on the job. At the time of the suspension, the plaintiff signed a “last chance” agreement to keep his job in which he agreed that any further violations of company rules occurring within twelve months after his return to work would result in his termination without recourse to the grievance procedure in the company’s labor agreement.

Thereafter, the plaintiff went to his physician concerning his fatigue problem. The plaintiffs physician, Frank Vanoni, placed the plaintiff on the medication Ritalin, which helped the plaintiff alleviate his fatigue problem. A few days before the plaintiffs last day of work, he ran out of his prescription for Ritalin. Because the plaintiff did not have the money to refill the prescription, he did not have it refilled immediately. The plaintiff never informed the company that he had run out of his Ritalin prescription.

The plaintiff normally commenced his shift at 6 a.m., and, because he resided in Hartford, it was necessary for him to awaken at 4 a.m. to arrive at work on time. This early schedule required the plaintiff to be in bed by 8 p.m. For the two days preceding his last day of work, however, he was unable to get to bed by 8 p.m. because he stayed up late for social reasons. The appeals referee also found that on the plaintiffs last day of work, April 25,1996, the plaintiff was discovered at 6:20 a.m. sitting at his desk with his feet up. Five minutes later, the plaintiff had not moved and was told again to get started. At 7:15 a.m., the plaintiff was paged, but did not respond. Sometime thereafter, the plaintiff was found asleep in a utility room on the third floor. The company discharged the plaintiff that day.

Thereafter, the plaintiff applied for unemployment compensation benefits. The administrator determined that the plaintiff was not entitled to receive those benefits. The plaintiff appealed the administrator’s decision to an appeals referee, who affirmed the denial of benefits, ruling that the plaintiffs actions in allowing his prescription to lapse and staying up late for two nights constituted deliberate misconduct because it resulted in the plaintiffs falling asleep on the job.

The plaintiff appealed the referee’s decision to the board. The board reviewed the record and determined that the referee’s findings of fact were fully supported by the record. The board further determined that the referee’s conclusion was legally consistent with those findings and with the provisions of the Unemployment Compensation Act governing the issue in the appeal. Accordingly, the board adopted the referee’s findings of fact and affirmed the referee’s decision.

Thereafter, the plaintiff appealed to the Superior Court from the decision of the board. The Superior Court sustained the appeal, ruling that, although the plaintiffs behavior may have been negligent and thoughtless, it did not rise to the level of wilful misconduct within the meaning of § 31-236 (a) (2) (B). The Superior Court remanded the case for further proceedings consistent with its opinion. From that judgment, the present appeal ensued.

On appeal, the administrator’s sole claim is that the Superior Court improperly concluded that the plaintiff s conduct did not rise to the level of wilful misconduct within the meaning of § 31-236 (a) (2) (B), and, therefore, would not disqualify him from receiving unemployment benefits. We agree.

The appropriate standard of review with regard to the issue presented in this appeal is limited. “To the extent that an administrative appeal, pursuant to General Statutes § 31-249b, concerns findings of fact, a court is limited to a review of the record certified and filed by the board of review. The court must not retry facts nor hear evidence.” (Internal quotation marks omitted.) Mattatuck Museum-Mattatuck Historical Society v. Administrator, Unemployment Compensation Act, 238 Conn. 273, 276, 679 A.2d 347 (1996). The Superior Court, therefore, “is bound by the findings of subordinate facts and the reasonable conclusions of fact made by the appeals referee.” (Internal quotation marks omitted.) Westport Development & Mfg. Co. v. Administrator, Unemployment Compensation Act, 9 Conn. App. 189, 190, 517 A.2d 1050 (1986). “If, however, the issue is one of law, the court has the broader responsibility of determining whether the administrative action resulted from an incorrect application of the law to the facts found or could not reasonably or logically have followed from such facts. Although the court may not substitute its own conclusions for those of the administrative board, it retains the ultimate obligation to determine whether the administrative action was unreasonable, arbitrary, illegal or an abuse of discretion.” (Internal quotation marks omitted.) Mattatuck Museum-Mattatuck Historical Society v. Administrator, Unemployment Compensation Act, supra, 276.

Moreover, we note that “[a]s a general rule, [t]he application of statutory criteria to determine a claimant’s eligibility for unemployment compensation under General Statutes §§ 31-235 and 31-236 involves mixed questions of fact and law in which the expertise of the administrative agency is highly relevant.” (Internal quotation marks omitted.) United Parcel Service, Inc. v. Administrator, Unemployment Compensation Act, 209 Conn. 381, 386, 551 A.2d 724 (1988). “[T]he remedial puipose of the Unemployment Compensation Act is to provide relief for its primary beneficiaries, those who are unemployed without fault or for cause . . . but this beneficent remedial purpose does not support the grant of benefits to an employee guilty of wilful misconduct.” (Citation omitted.) Id., 388.

The plaintiff does not challenge the referee’s findings of fact, but, instead, challenges the conclusion that the referee and the board reached, based on those factual findings, that the plaintiffs actions constituted wilful misconduct. The plaintiff notes that in United Parcel Service, Inc. v. Administrator, Unemployment Compensation Act, supra, 209 Conn. 386-87, the court stated that “as a matter of law, it is well established that disregard of the standards of behavior that an employer has the right to expect of his employees, by carelessness or negligence of sufficient degree or frequency to show disregard for the employer’s interests or equal culpability, constitutes wilful misconduct.” The plaintiff attempts to distinguish United Parcel Service, Inc., from the present case, however, by noting that in United Parcel Service, Inc., the claimant had committed twenty-six policy infractions, including ten delivery violations and six misdeliveries in only eleven years of employment. In the present case, the plaintiff argues that the degree and frequency of his violations were much less than those of the claimant in United Parcel Service, Inc., in that the plaintiff committed only three violations in the course of twenty-three years of employment. Furthermore, the plaintiff argues “that the cases the court in [United Parcel Service, Inc. v. Administrator, Unemployment Compensation Act, supra, 387] cited as instances in which negligence rose to the level of wilful misconduct all involved greater intentionality and immediacy in the employee’s actions.” The plaintiff also asserts that “[a]ll [those] cases have in common deliberate, repeated flouting of the employer’s rules.”

We note, however, that at the time United Parcel Service, Inc., was decided, in 1988, General Statutes (Rev. to 1987) § 31-236 (a) provided in relevant part: “An individual shall be ineligible for benefits ... (2) . . . (B) if, in the opinion of the administrator, he has been discharged or suspended for . . . repeated wilful misconduct in the course of his employment . . . .” (Emphasis added.) In 1995, however, the statute was amended by deleting “repeated” before wilful misconduct. Public Acts 1995, No. 95-323, § 3 (effective October 1, 1995); see also footnote 3. Furthermore, the statutory language was amended to state that “wilful misconduct” means “deliberate misconduct in wilful disregard of the employer’s interest, or a single knowing violation of a reasonable and uniformly enforced rule or policy of the employer, when reasonably applied, provided such violation is not a result of the employee’s incompetence . . . .” (Emphasis added.) General Statutes (Rev. to 1995) § 31-236 (a), as amended by Public Acts 1995, No. 95-323, § 3. The absence of repetition, therefore, does not prevent the possibility of discharge for wilful misconduct.

In the present case, the company, on two prior occasions, had disciplined the plaintiff for sleeping on the job, including a suspension accompanied by a last chance agreement subjecting him to discharge for another similar incident. The appeals referee found that on his last day of work, the plaintiff was warned twice about getting his work started; at 6:20 a.m., he was told to get started when he was found sitting at his desk with his feet up, and he was again told to get started five minutes later. The plaintiff also failed to respond to a page at 7:15 a.m. Sometime thereafter, the plaintiff was found asleep in a utility room on the third floor. This conduct evinces a wilful disregard of a substantial employer interest and expected standards of behavior. See Regs., Conn. State Agencies § 231-236-26, as in effect from 1986 until 1997.

Although the incident giving rise to the plaintiffs termination may have occurred as a result of his not having taken his medication, the prior warnings, although not dispositive on the issue of wilful misconduct; see Regs., Conn. State Agencies § 31-236-26c, as in effect from 1986 until 1997; were properly considered in establishing the plaintiffs awareness that the company did not tolerate this type of behavior. See Rivera v. Administrator, Unemployment Compensation Act, 4 Conn. App. 617, 621, 495 A.2d 1125 (1985) (prior warnings properly considered in estabhshing plaintiffs awareness of situation and in determining wilful misconduct); see also Regs., Conn. State Agencies § 31-236-26 (c), as in effect from 1986 until 1997 (“[i]n determining whether wilful misconduct occurred, the Administrator shall consider the prior issuance of any warning to the individual by his employer in response to the same or similar conduct”). Our review of the record persuades us that the conclusion of the appeals referee, that the plaintiffs dismissal was the result of an act of wilful misconduct in the course of employment, reasonably and logically could have followed from the facts of this case.

The administrator acknowledges that “extenuating circumstances, such as extreme fatigue and inability to take sufficient breaks, may negate deliberate or reckless action . . . .” In the present matter, however, the administrator argues that the plaintiff created the risk of sleeping and failed to inform the employer of such risk, thereby precluding the excuse of such conduct on the basis of mitigating circumstances. In his brief, the plaintiff concedes that the “[administrator] correctly notes that the [board] has consistently ruled that sleeping on the job is aprima facie act of wilful misconduct.” The plaintiff argues, however, that there were mitigating circumstances and that the Superior Court properly characterized his situation not as wilful misconduct but, instead, as “someone who foolishly put himself in a situation where his late hours, lack of medicine, and abnormal sleep habits resulted in his being overcome with fatigue at work.”

The appeals referee found that the plaintiff engaged in conduct that allowed him to fall asleep while at work despite prior warnings about sleeping on the job, namely the warnings he received in September, 1994, and in July, 1995, as well as the warnings he received on the morning of April 26, 1996. The appeals referee also found that a few days before his last day of work, which was less than a year after signing the last chance agreement, the plaintiff ran out of his prescription for Ritalin and was unable to get the prescription refilled immediately. Furthermore, for the two days preceding his last day of work, the plaintiff was unable to get to bed by 8 p.m. because he stayed up late for social reasons. The plaintiff notes in his brief that “[p]erhaps he should have foreseen that staying up late and not renewing his prescription would have led to his falling asleep . . . .”

The plaintiff was aware of his fatigue problem, as evidenced by the fact that he procured medication for the alleged illness, which apparently provided an effective remedy for his fatigue problem when he was taking the medication. The plaintiff, by failing to inform the company that he had allowed his prescription to lapse, deprived the company of an opportunity to take any necessary steps to protect its own interests. Instead, the plaintiff, who was aware of his history of falling asleep and his need for Ritalin, chose to engage in conduct that he knew might create a situation in which he would again fall asleep on the job. The appeals referee reasonably could have inferred, therefore, that the plaintiff engaged in conduct with “reckless indifference for the probable consequences of such [actions] . . . .” Regs., Conn. State Agencies § 31-236-26 (a) (1), as in effect from 1986 until 1997. We conclude, therefore, that the appeals referee reasonably and logically could have concluded that the plaintiff did not present any mitigating circumstances. Accordingly, our review of the record persuades us that the decision of the board that the plaintiff’s actions amounted to wilful misconduct was logically supported by the evidence, and was not unreasonable, arbitrary, illegal or an abuse of the board’s discretion. See Mattatuck Museum-Mattatuck Historical Society v. Administrator, Unemployment Compensation Act, supra, 238 Conn. 276.

The judgment is reversed and the case is remanded with direction to render judgment affirming the decision of the board.

In this opinion the other judges concurred.

       “The administrator is the labor commissioner. General Statutes § 31-222 (c). He is charged with the initial responsibility of determining whether claimants are entitled to unemployment benefits. General Statutes § 31-241. Upon the filing of a claim, the administrator or a representative (examiner) designated by him must examine the claim and on the basis of the facts found by him, determine whether the claim is valid. Id. . . . [B]y statute the administrator is deemed to be a party to any proceeding . . . before a referee, the board or any reviewing court. General Statutes § 31-249c.” (Citations omitted; internal quotation marks omitted.) Finkenstein v. Administrator, Unemployment Compensation Act, 192 Conn. 104, 108, 470 A.2d 1196 (1984).

       We note that the plaintiff, Thomas Latina, appeared pro se at oral argument before this court.

       As amended, General Statutes § 31-236 (a) provides in pertinent part: “An individual shall be ineligible for benefits ... (2) ... (B) if, in the opinion of the administrator, he has been discharged or suspended for . . . wilful misconduct in the course of his employment . . . .” For purposes of § 31-236 (a) (2) (B), “wilful misconduct” means “deliberate misconduct in wilful disregard of the employer’s interest, or a single knowing violation of a reasonable and uniformly enforced rule or policy of the employer, when reasonably applied, provided such violation is not the result of the employee’s incompetence . . . .” General Statutes § 31-236 (15).

       We note that the Torrington Company-Delaware was named as a defendant in this action but did not file an appearance.

       On June 5,1996, the plaintiff underwent a polysomnogram, a test requiring an individual to spend the night in the hospital in order to be observed sleeping. The report regarding the plaintiffs sleeping patterns indicated that his sleep was not normal, specifically, that his sleep was interrupted by an excess of awakenings, but the report did not indicate any diagnosis as to why he had trouble sustaining uninterrupted sleep.

       The cost to refill the prescription of Ritalin was $60, which the plaintiff had to pay and then seek reimbursement.

       The denial letter from the unemployment compensation department st ates: “You were discharged by the Torrington Company-Delaware on: April 25,1996. The record indicates that the reason for your discharge was sleeping on duty. This indicates a single knowing violation of a reasonable and uniformly enforced rule of policy reasonably applied by the employer. Since the violation was not the result of your incompetence, benefits are denied effective April 21, 1996, to such time as you have earned at least ten times your weekly benefit rate and are otherwise eligible.”

       Initially, we must determine whether this appeal was taken from a final judgment and, hence, whether it is properly before this court. Dacey v. Commission on Human Rights & Opportunities, 41 Conn. App. 1, 4, 673 A.2d 1177 (1996) (lack of final judgment is threshold question that implicates subject matter jurisdiction of this court). “General Statutes § 4-183 (j) of the Uniform Administrative Procedure Act (UAPA) provides that a remand for further proceedings is a final judgment. Unemployment compensation appeals, however, are exempt from the UAPA under General Statutes § 4-186 (a). Where the UAPA is not applicable, the test of whether a judgment is final tons on the scope of the proceeding on remand to the board. . . . If proceedings are merely ministerial, the decision is an appealable final judgment, but if further proceedings require the exercise of independent judgment or discretion or the taking of additional evidence, the appeal is premature and must be dismissed.” (Citation omitted.) Bennett v. Administrator, Unemployment Compensation Act, 34 Conn. App. 620, 623-24 n.6, 642 A.2d 743 (1994). Because the Superior Court invalidated the only ground on which the board denied the plaintiff unemployment benefits, the board on remand would not have to exercise independent judgment or discretion or take additional evidence before awarding the plaintiff his unemployment benefits. Our review of the record indicates that the appeals referee found that the plaintiff established a weekly benefit rate of $335. Moreover, a remand to calculate benefits is ministerial. Id. We conclude, therefore, that the Superior Court’s judgment sustaining the plaintiffs appeal is an appeal-able final judgment.


author: O’CONNELL, C. J.

text:
    EDGEWOOD VILLAGE, INC., ET AL. v. HOUSING AUTHORITY OF THE CITY OF NEW HAVEN
    (AC 17806)
    O’Connell, C. J., and Lavery and Spear, Js.
    Argued March 15
    officially released July 6, 1999

      Barbara L. Cox, with whom, on the brief, was William F. Gallagher, for the appellants (plaintiffs).

      Lee Kennedy Tieman, for the appellee (defendant).
   Opinion

O’CONNELL, C. J.

The plaintiffs, Edgewood Village, Inc., and Edgewood Neighborhood Association, Inc., appeal from the dismissal of their action for lack of personal jurisdiction due to the plaintiffs’ failure to use a proper summons in the commencement of their action. We conclude that the plaintiffs’ case is moot and, therefore, decline to review the appeal.

The plaintiffs commenced this action against the defendant housing authority of the city of New Haven (housing authority) concerning certain New Haven property adjacent to property owned by Edgewood Village, Inc., and acquired by the housing authority. The complaint alleged that while the housing authority initially published a public hearing notice regarding its potential acquisition of the property, the notice did not describe the intended use of the property for a housing project. As a result, the plaintiffs claim that they were deprived of the opportunity to comment on the acquisition of the subject property. The complaint further alleged that the housing authority failed to comply with its own rules regarding the acquisition of property and also failed to maintain the property adequately, thereby adversely affecting the value of the property owned by Edgewood Village, Inc. The complaint, dated July 14, 1997, requested that the court issue a permanent injunction prohibiting the housing authority from renting the subject property.

The plaintiffs also filed an application for an ex parte temporary injunction prohibiting the housing authority from renting the subject property. On July 16, 1997, the trial court issued the temporary injunction enjoining the housing authority from leasing, transferring or otherwise utilizing the property, pending further order of the court.

On August 20, 1997, the housing authority moved to dismiss the action claiming, inter alia, that the trial court lacked personal jurisdiction over the housing authority because the plaintiffs’ summons did not contain a proper return date or date for filing an appearance. The trial court dismissed the action and vacated the injunction for lack of personal jurisdiction.

On October 30, 1997, the plaintiffs served a second complaint, identical to the first complaint, but this time using a proper summons. On November 7, 1997, the housing authority removed the second action to the United States District Court for the District of Connecticut. On November 13, 1997, the plaintiffs timely appealed the judgment of dismissal in their first action. Subsequent to the filing of the appellate briefs in this case, but prior to oral argument, the United States District Court remanded the plaintiffs’ second action to the state court.

“ ‘Mootness implicates the subject matter jurisdiction of this court.’ Sadlowski v. Manchester, 206 Conn. 579, 583, 538 A.2d 1052 (1988).” Gagnon v. Planning Commission, 24 Conn. App. 413, 415, 588 A.2d 1385 (1991), aff'd, 222 Conn. 294, 608 A.2d 1181 (1992). “The test for determining mootness of an [issue on] appeal is whether there is any practical relief this court can grant the appellant. Citicorp Mortgage, Inc. v. Hairston, 34 Conn. App. 138, 139, 640 A.2d 146 (1994). [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. ... If no practical relief can be afforded to the parties, the appeal must be dismissed. . . . Gagnon v. Planning Commission, [supra, 415-16].” (Internal quotation marks omitted.) ALCA Construction Co. v. Waterbury Housing Authority, 49 Conn. App. 78, 81, 713 A.2d 886 (1998).

In this case, the plaintiffs have filed an identical lawsuit to the one that was dismissed. Because both actions demand the same relief, the legal redress that the plaintiffs seek is available to them in their pending action. If this court were to reverse the trial court’s dismissal and order this case reinstated, the plaintiffs could not be afforded any further relief than that which they can obtain in the second case, which is pending in the trial court. The relief that a court must be able to provide should be “meaningful”; State v. Hope, 203 Conn. 420, 424, 524 A.2d 1148 (1987); State v. Klinger, 50 Conn. App. 216, 223 n.7, 718 A.2d 446 (1998); and where meaningful relief cannot be afforded, an appeal will be dismissed as moot. State v. Hope, supra, 424.

As indicated previously, the allegations contained in the plaintiffs’ complaints in both actions are identical and the actions arise from the same factual background. We conclude, therefore, that no meaningful relief can be afforded.

The appeal is dismissed as moot.

In this opinion the other judges concurred.

       Subsequent to the trial court’s vacating the irqunction, the housing authority leased the subject premises to a tenant who remains in occupancy today.

       No restraining order or temporary injunction has been issued by the District Court.

       On November 24,1997, prior to the federal court remanding the plaintiffs’ second action to the state court, the housing authority moved to dismiss the plaintiffs’ appeal on a number of grounds, including mootness. On January 28, 1998, this court denied the motion to dismiss. This court is not, however, precluded from reconsidering the mootness question at this time. Nicoll v. State, 38 Conn. App. 333, 335, 661 A.2d 101 (1995). Prior to the date set for oral argument, we instructed counsel to be prepared to address the issue of whether the case was moot due to the filing of the second case.

       Furthermore, if we were to reverse the trial court’s dismissal and reinstate the plaintiffs’ first case, the plaintiffs would have two virtually identical cases pending before the same court. “The prior pending action doctrine permits the court to dismiss a second case that raises issues currently pending before the court. The pendency of a prior suit of the same character, between the same parties, brought to obtain the same end or object, is, at common law, good cause for abatement. It is so, because there cannot be any reason or necessity for bringing the second, and, therefore, it must be oppressive and vexatious. This is a rule of justice and equity, generally applicable, and always, where the two suits are virtually alike, and in the same jurisdiction. . . . Halpern v. Board of Education, 196 Conn. 647, 652-53, 495 A.2d 264 (1985).” (Internal quotation marks omitted.) Cumberland Farms, Inc. v. Groton, 247 Conn. 196, 216, 719 A.2d 465 (1998). The policy of the prior pending action doctrine—that multiple identical suits cannot coexist—is applicable to our determination that the reinstatement of the plaintiffs action is not practical relief to which it is entitled.


text:
    STATE OF CONNECTICUT v. HERIBERTO LOPEZ
    (AC 14042)
    Landau, Schaller and Sullivan, Js.
    Argued April 27
    officially released July 13, 1999

      Lauren Weisfeld, assistant public defender, for the appellant (defendant).

      Ronald G. Weller, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Gary W. Nicholson, senior assistant state’s attorney, for the appellee (state).
   Opinion

LANDAU, J.

The defendant, Heriberto Lopez, was charged and convicted, after a jury trial, of murder in violation of General Statutes § 53a-54a, conspiracy to commit murder in violation of General Statutes §§ 53a-48 (a) and 53a-54a and having a weapon in a motor vehicle in violation of General Statutes § 29-38. Following an appeal from the judgment of conviction to this court, which we affirmed; State v. Lopez, 38 Conn. App. 434, 435, 662 A.2d 792 (1995); our Supreme Court granted certification to appeal limited to the following issue: “Whether the Appellate Court properly upheld the trial court’s exclusion of a third party confession?” State v. Lopez, 235 Conn. 919, 665 A.2d 907 (1995).

The Supreme Court remanded the case to the trial court to determine whether the alleged third party confession was sufficiently trustworthy to have been admitted into evidence. State v. Lopez, 239 Conn. 56, 681 A.2d 950 (1996). On remand, the trial court found that the alleged confession was not sufficiently trustworthy. The defendant filed an amended appeal following that determination. The sole issue presented in this appeal is whether the trial court properly determined that an alleged third party confession was not sufficiently trustworthy to have been admitted into evidence. We affirm the judgment of the trial court.

Our Supreme Court, citing our appellate decision; State v. Lopez, supra, 38 Conn. App. 434; sets forth some of the relevant facts that the jury reasonably could have found. “On May 8, 1991, at approximately 7:30 p.m., the victim, Elvis Cmkovic, and his brother Paul Cmkovic, were playing basketball at the comer of Winthrop and Davenport Avenues in New Haven. Elvis, who was sixteen years old, and Paul, who was seventeen years old, lived across the street from a vacant building on which a basketball rim was nailed. While they were playing, a brown car drove up with the defendant in the front passenger seat holding a .38 caliber revolver. A second car, a gray Mazda, also approached. The Mazda was driven by Jorge Orta, and David Morales was a passenger. Shots were fired from both cars and Elvis was hit in the back as he and his brother attempted to run away. The bullet was a hollow point that entered his lower back and came to rest just beneath the skin of his left collarbone.- Elvis was taken to the hospital where he died as a result of his wounds. The defendant was one of the shooters.” (Internal quotation marks omitted.) State v. Lopez, supra, 239 Conn. 59-60.

During his case-in-chief, the defendant sought to present evidence that a third party, Lenise Nestir, and not the defendant, had committed the murder. Outside of the jury’s presence, the defendant called Robin Shade, a friend of Nestir, to make an offer of proof regarding an incriminating statement that Nestir allegedly had made to Shade. In the statement, Nestir allegedly indicated to Shade that Nestir had killed the victim. The out-of-court statement was not allowed.

The defendant claims that the threshold requirement of trustworthiness was satisfied because the timing of the declaration and the party to whom it was made supported its trustworthiness, and that the statement was sufficiently corroborated. We disagree.

“The law regarding the admissibility of third party statements against interest is well settled. A trustworthy third party statement exculpatory of the accused and against the penal interest of the declarant is admissible at the trial of the accused if the declarant is unavailable. State v. Boyd, 214 Conn. 132, 138, 570 A.2d 1125 (1990) [on appeal after remand, 221 Conn. 685, 607 A.2d 376, cert. denied, 506 U.S. 923, 113 S. Ct. 344, 121 L. Ed. 2d 259 (1992)]; State v. Mayette, 204 Conn. 571, 576, 529 A.2d 673 (1987); State v. Hernandez, 204 Conn. 377, 389-90, 528 A.2d 794 (1987); State v. Bryant, 202 Conn. 676, 692, 523 A.2d 451 (1987); State v. Gold, 180 Conn. 619, 630, 431 A.2d 501, cert. denied, 449 U.S. 920, 101 S. Ct. 320, 66 L. Ed. 2d 148 (1980); State v. DeFreitas, 179 Conn. 431, 450-51, 426 A.2d 799 (1980); see also Fed. R. Evid. 804 (b) (3). The determination of whether such a statement is sufficiently trustworthy to be admitted into evidence at trial lies within the sound discretion of the trial court. United States v. Hoyos, 573 F.2d 1111, 1115 (9th Cir. 1978); State v. Mayette, supra, 577; State v. Hernandez, supra, 390; State v. Bryant, supra, 694; State v. DeFreitas, supra, 452.

“Our present rule allowing the admission of trustworthy third party statements against penal interest has its genesis in Chambers v. Mississippi, 410 U.S. 284, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973). Prior to Chambers, such third party statements were per se inadmissible as hearsay. State v. Stallings, 154 Conn. 272, 287, 224 A.2d 718 (1966); State v. Mosca, 90 Conn. 381, 387, 97 A. 340 (1916); State v. Beaudet, 53 Conn. 536, 551, 4 A. 237 (1886). In State v. DeFreitas, supra, [179 Conn. 449], we interpreted Chambers as forbidding the mechanistic application of the hearsay rule to exclude all third party statements against penal interest exculpatory of an accused. We concluded, however, that Chambers did not mandate the admission of every such statement but required the admission only of those statements that, after a careful examination, were determined in the sound discretion of the trial court to be trustworthy. State v. DeFreitas, supra, 451-52.

“Four considerations have been deemed relevant when examining the trustworthiness of declarations against penal interest: (1) the time of the declaration and the party to whom the declaration was made; (2) the existence of corroborating evidence in the case; (3) the extent to which the declaration is really against the declarant’s penal interest; [and] (4) the availability of the declarant as a witness. United States v. Guillette, 547 F.2d 743, 754 (2d Cir. [1976]), cert. denied, 434 U.S. 839, 98 S. Ct. 132, 54 L. Ed. 2d 102 [1977]. See United States v. Oropeza, 564 F.2d 316, 325 (9th Cir. [1977]) [cert. denied, 434 U.S. 1080, 98 S. Ct. 1276, 55 L. Ed. 2d 788 (1978)]; Henson v. United States, 399 A.2d 16 [19] (D.C. App.) [cert. denied, 444 U.S. 848, 100 S. Ct. 96, 62 L. Ed. 2d 62 (1979)]; People v. Foster, 66 Ill. App. 3d 292, 294-95, 383 N.E.2d 788 [1978]. State v. DeFreitas, supra, [179 Conn. 451]; State v. Bryant, supra, [202 Conn. 693]; State v. Frye, 182 Conn. 476, 479, 438 A.2d 735 (1980); State v. Gold, supra, [180 Conn. 633]. . . . State v. Rosado, 218 Conn. 239, 243-45, 588 A.2d 1066 (1991).” (Emphasis in original; internal quotation marks omitted.) State v. Lopez, supra, 239 Conn. 70-72.

We begin with an examination of the first consideration enumerated above—the time of the declaration and the party to whom it was made. Although the statement was made one and one-half days after the shooting, the record does not support the conclusion that the inculpatory statement was made to someone under circumstances that indicate that it was trustworthy. See State v. Hernandez, supra, 204 Conn. 392. Specifically, our review of the record before us does not support the claim that it was made to a person in whom Nestir would naturally confide. See id. (witness testifying regarding statement must be one in whom declarant would naturally confide); see also State v. Rivera, 221 Conn. 58, 70, 602 A. 2d 571 (1992) (must be close and confidential relationship between parties to conversation). Furthermore, we note that the proponent of the statement bears the burden of establishing the requisite relationship. Id., 70-71.

A review of the record reveals the following facts. On cross-examination, Shade testified that she had known Nestir for nine years. Approximately eight years before, Shade had taken care of Nestir for one period of eleven months and another period of nine months. Shade, who was not related to Nestir, stopped taking care of Nestir because Nestir “ ‘[liked] to go on the streets constantly.’ ’’ State v. Lopez, supra, 239 Conn. 88 (Callahan, J., dissenting). Furthermore, Shade testified that during the period of time when she took care of Nestir, Nestir had a habit of shoplifting, and that Nestir had been a bad influence on her daughters, involving them in petty criminal behavior. Shade also testified that she knew Nestir well enough to know whether Nestir was telling the truth, that Nestir often lied to her, and that she did not trust Nestir. Furthermore, although Nestir occasionally visited Shade’s residence after she moved out, Shade testified that those visits were limited to approximately one hour in length and confined to certain areas of her home. At times, Shade did not allow Nestir into her home when Nestir visited. We agree with Justice Callahan that “[i]t is reasonable to infer from this evidence that, although Nestir and Shade knew one another and were more than mere acquaintances, a certain hostility existed between them and that Shade was not a close friend of Nestir or a person in whom Nestir would naturally confide.” Id. We conclude, that the trial court did not abuse its discretion in concluding that there was no close, confidential relationship between the declarant and the witness that would indicate the trustworthiness of the alleged declaration by Nestir.

We now turn to the second consideration—the existence of corroborating evidence in the case. In the present case, a review of the record reveals that there was insufficient evidence to substantiate the truth of the facts contained in the third party statement. “The corroboration requirement ... is significant and goes beyond minimal corroboration.” State v. Rosado, supra, 218 Conn. 249. To avoid the possibility of fabrication, third party statements must be construed as requiring corroborating circumstances that clearly indicate the statement’s trustworthiness. Id. The defendant’s corroborative evidence of Nestir’s alleged statement rests on two facts: “(1) the undisputed fact that Nestir possessed the murder weapon eight days after the shooting; and (2) the testimony by one witness—contradicted by the unequivocal testimony of the four other witnesses to the shooting who testified that they had seen the shooter—that Nestir was present in the automobile from which another person had fired the fatal shots.” (Emphasis in original.) State v. Lopez, supra, 239 Conn. 90 (Callahan, J., dissenting)

We cannot conclude that these facts meet the “significant” level of corroboration required under State v. Rosado, supra, 218 Conn. 249. For example, there is no direct evidence identifying Nestir, or any female, as the shooter, or any independent evidence supporting a key element of the proffered statement, namely, that the motive for the shooting was Nestir’s earlier fight with the victim’s brother, that Nestir sought help from several young men in order to retaliate against the victim’s brother, or that Nestir had spoken with Shade at any point after the shooting. See State v. Lopez, supra, 239 Conn. 92 (Callahan, J., dissenting). Furthermore, there is no evidence in the record that Nestir ever repeated the statement. See State v. Rivera, supra, 221 Conn. 70, citing State v. Mayette, supra, 204 Conn. 578 (lack of reiteration of statement considered to vitiate its reliability); see also State v. Bryant, supra, 202 Conn. 701. We agree with Justice Callahan that the evidence in this case “is minimal and speculative and fails to ensure trustworthiness.” State v. Lopez, supra, 90 (Callahan, J., dissenting); see also State v. Rivera, supra, 71.

As we previously have stated, our primary function in this appeal is to determine whether the trial court abused its broad discretion in refusing to admit Shade’s testimony. See State v. Bryant, supra, 202 Conn. 694. Upon consideration of the entire record, we conclude that the trial court properly exercised that discretion.

The judgment is affirmed.

In this opinion the other judges concurred.

       Our Supreme Court concluded that the Appellate Court improperly-upheld the trial court’s exclusion of the third party confession. State v.
        Lopez, 239 Conn. 56, 681 A.2d 950 (1996). Specifically, our Supreme Court ruled that the trial court abused its discretion in failing to determine that the third party declarant was unavailable. In addition, our Supreme Court noted that the trial court did not expressly make a finding on the trustworthiness of the proffered statement. Id., 72.

       "The state introduced testimony to establish that the defendant had been a member of the Davenport Avenue gang and that the shooting was part of an ongoing feud between the defendant’s gang and the ‘Liberty Street Posse.’ First, Lenise Nestir, followed by Perry Moore and Ivanez Virvet, three eyewitnesses to the shooting, testified about the ‘bad blood’ that existed between the two gangs. Paul Cmkovic also testified that a few weeks before the shooting, he was ‘jumped’ by Morales. When interviewed by Detective Ralph Dinello, the defendant admitted to being at the scene in the gray car and stated that Alex Romero, who was in the brown car, had been the shooter. At trial, however, the defendant denied having made those statements and denied any participation in the shooting. During the presentation of the state’s case, the defendant attempted to establish that Orta and Morales had killed Elvis in retaliation for an earlier shooting of Orta for which the Liberty Street Posse believed the Davenport Avenue gang to have been responsible.” State v. Lopez, supra, 239 Conn. 60 n.6.

       “Shade testified that one and one-half days after the shooting, Nestir had told her about Elvis’ killing. Nestir had told Shade that Paul Cmkovic, Elvis’ brother, had hit Nestir in the face. Nestir remarked to Shade that she was going to retaliate by getting] some boys from Liberty Street to beat his butt. Shade further testified that Nestir told her that on the day of the incident, Nestir and some boys from Liberty Street drove down Davenport Avenue and saw Paul and Elvis playing basketball. According to Shade, Nestir had stated that she got a car full of guys and she said that one of them had the gun shooting it out the window up to the sky and she grabbed it from the guy and pointed it to Paulie and it didn’t hit Paulie it hit someone else and she said it was his brother [the victim].’’(Internal quotation marks omitted.) State v. Lopez, supra, 239 Conn. 62.

       We note that our Supreme Court determined that Nestir was unavailable as a witness; State v. Lopez, supra, 239 Conn. 79; and that the alleged confession to the murder was against the declarant’s penal interest (the state has never contested that the alleged statement was against her penal interest). Id., 74. Accordingly, the only considerations that we review in this appeal are the first and second considerations.

       "[A]ccording to the defendant, Shade inexplicably did not come forward with Nestir’s purported statement admitt ing to a murder until the defendant’s trial was underway two years later.” State v. Lopez, supra, 239 Conn. 86 n.7 (Callahan, J., dissenting).

       Nestir was seventeen at the time of trial and, therefore, she was approximately eight or nine years old at the time that Shade took care of her.

       Although they were not related, Shade testified that Nestir referred to Shade as her “aunt” when Shade cared for her, which, as stated previously, was eight years prior to when Nestir allegedly made the inculpatory statement to Shade. See State v. Lopez, supra, 239 Conn. 87 n.8 (Callahan, J., dissenting). We note, however, that even the existence of a sibling relationship will not always lead to a conclusion that there is a “close and confidential relationship” between the declarant and the witness. See, e.g., State v. Rivera, supra, 221 Conn. 70-71.

       We note that “[t]he record also fails to disclose whether Nestir visited Shade’s residence to visit Shade or to visit Shade’s daughter’s, with whom she was friendly.” State v. Lopez, supra, 239 Conn. 88 n.9 (Callahan, J., dissenting).

       Specifically, Shade testified as follows:
      “[Assistant State’s Attorney]: You like her over your house then?
      “[Shade]: When I do let her in, she only comes to the living room and to the bathroom and that will be it for maybe an hour.”

       Nestir’s alleged statement is in direct conflict with testimony from various witnesses. See State v. Sanchez, 200 Conn. 721, 726-27, 513 A.2d 653 (1986). “Paul Cmkovic and Ivanez Virvet, two witnesses for the state who saw the shooter, identified the defendant as the shooter. A third witness for the state, Perry Moore, identified the shooter as an unknown Latino male. A fourth eyewitness for the state, Angelo Virvet, corroborated the details provided by the other three witnesses for the state, but did not see who was in the automobile from which the shots had been fired. Alex Romero, a witness for the defense, testified that David Morales had fired the shots that had killed the victim. Jeanette Ayala, who testified for the defense, said that a man named Moses had fired the shots that had lolled the victim.” State v. Lopez, 239 Conn. 91 n.12 (Callahan, J., dissenting). Furthermore, “[t]he defendant himself, in a statement made to the police, admitted that he had been present at the shooting and said that Alex Romero had been the shooter. The defendant recanted that statement at trial.” Id., 91 n.13.

       See footnote 2 (noting evidence adduced at trial established motive for murder as feud between victims’s brother and local street gang).


author: PER CURIAM.

text:
    VOLKER FRITZ v. ZONING BOARD OF APPEALS OF THE TOWN OF ROXBURY
    (AC 18215)
    O’Connell, C. J., and Schaller and Sullivan, Js.
    Argued March 24
    officially released July 13, 1999

      Arthur J. O'Neill, for the appellant (plaintiff).

      Gail E. McTaggart, with whom, on the brief, was Donald C. McPartland, for the appellee (defendant).
   Opinion

PER CURIAM.

This is an appeal from the judgment of the trial court dismissing the plaintiffs appeal from the denial of his application for a variance by the Roxbury zoning board of appeals. The plaintiff claims on appeal that the trial court improperly concluded that (1) the board’s reasons supported its denial of the application based on lack of hardship, (2) the town boundary line separating Roxbury and Southbury, which crosses his property, does not automatically sever his property into two distinct lots for zoning purposes, and (3) his application was based on personal hardship.

We have fully reviewed the record and briefs and considered the oral arguments of the parties. The trial court’s findings are supported by the evidence and the inferences that reasonably may be drawn therefrom. Having applied the appropriate standard of review, we conclude that the trial court did not abuse its discretion and that its decision conformed to the applicable law. Our review reveals that no novel principles of law or appellate procedure are involved in this case and that discussing the plaintiffs claims at length would serve no useful purpose. See Byrne v. Trice, 170 Conn. 442, 442-43, 365 A.2d 1063 (1976); Zoning Inspector of Redding v. Plunske, 48 Conn. App. 422, 706 A.2d 1191, cert. denied, 245 Conn. 908, 718 A.2d 16 (1998); Benlock v. New Haven Terminal/Cilco Terminal, 48 Conn. App. 250, 706 A.2d 1390 (1998).

The judgment is affirmed.