author: SCHALLER, J.

text:
    RICHARD PHELPS v. NATALIE E. LANKES ET AL.
    (AC 22361)
    Schaller, West and Peters, Js.

      Argued October 21, 2002
    officially released January 21, 2003

      David M. Poirot, with whom, on the brief, was Steven F. Meo, for the appellant (plaintiff).

      Anita M. Varanes, for the appellees (defendants).
   Opinion

SCHALLER, J.

The plaintiff, Richard Phelps, appeals from the judgment rendered by the trial court in this personal injury action following a trial to the jury. On appeal, the plaintiff claims that the court improperly denied his motion to set aside the verdict in which the plaintiff claimed that the court gave the jury an improper instruction. Specifically, the plaintiff argues that the court improperly (1) instructed the jury on the issue of causation, (2) instructed the jury that it needed to establish an objective link between the motor vehicle collision at issue and the plaintiffs medical condition, and (3) failed to define the term “substantial factor.” We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On January 19,1997, the plaintiff was riding in the front passenger seat of a car operated by the defendant Natalie E. Lankes and owned by the defendant John Lankes. While traveling at a high rate of speed, Natalie Lankes lost control of the car, and it veered off of the road and struck a tree.

In November, 1998, the plaintiff brought an action sounding in negligence against the defendants. The plaintiff alleged injuries to his ribs, hips, lower back and spine. On April 6, 2001, the plaintiff amended his complaint to add a claim for risk of future surgery on his lumbar spine. In their August 1, 2001 answer, the defendants admitted negligence on the part of Natalie Lankes. The case was tried on the issues of causation and damages. The jury returned a verdict in favor of the plaintiff and awarded zero dollars for both economic and noneconomic damages. Additional facts will be set forth as necessary.

Before analyzing the issues before us, we first set forth the appropriate standard of review. “We review the trial court’s denial of a motion to set aside a verdict by an abuse of discretion standard.” Treglia v. Zanesky, 67 Conn. App. 447, 460, 788 A.2d 1263, cert. denied, 259 Conn. 926, 793 A.2d 252 (2002). “Appellate courts are disinclined to disturb jury verdicts because the trial court, from its vantage, is better able to assess the entire trial and because we review the evidence in the light most favorable to sustaining that verdict.” Marshall v. Hartford Hospital, 65 Conn. App. 738, 755, 783 A.2d 1085, cert. denied, 258 Conn. 938, 786 A.2d 425 (2001).

“A court is empowered to set aside a jury verdict when, in the court’s opinion, the verdict is contrary to the law or unsupported by the evidence. ... A verdict should not be set aside, however, where it is apparent that there was some evidence on which the jury might reasonably have reached its conclusion. . . . Before determining whether the granting of a motion to set aside is proper, the trial court must look at the relevant law that it gave the jury to apply to the facts, and at the facts that the jury could have found based on the evidence. The law and evidence necessarily define the scope of the trial court’s legal discretion. . . . The trial court, upon a motion to set aside the verdict, is called on to question whether there is a legal reason for the verdict and, if there is not, the court must set aside the verdict.” (Internal quotation marks omitted.) Carusillo v. Associated Women’s Health Specialists, P.C., 72 Conn. App. 75, 83, 804 A.2d 960 (2002).

I

The plaintiff argues that the court improperly denied his motion to set aside the verdict because the court improperly charged the jury on the issue of causation. Additionally, the plaintiff argues that the court’s charge misled the jurors into believing that the named defendant’s negligence had to be the sole proximate cause of the plaintiffs injuries. We are not persuaded.

The following additional facts are relevant to the analysis of the plaintiffs claim. In its charge to the jury, the court stated: “Now, even though your sole issue is damages, there still has to be a determination regarding causal connection, and that is a causal connection of the physical impairment with injury. The plaintiff has the burden of proof to satisfy you that the injuries he has suffered have been caused by the accident. If anything else is causing him pain, if his condition as it is today is due to any other cause than this particular accident, you will dismiss such claim from your mind.” (Emphasis added.)

At the outset, we note our standard of review concerning claims of instructional error. “When reviewing [a] challenged jury instruction . . . we must adhere to the well settled rule that a charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts. . . . [T]he test of a court’s charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. ... As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury . . . we will not view the instructions as improper.” (Internal quotation marks omitted.) Raybeck v. Danbury Orthopedic Associates, P.C., 72 Conn. App. 359, 372, 805 A.2d 130 (2002).

To determine whether the court properly charged the jury we look to the law of negligence. “To prevail on a negligence claim, a plaintiff must establish that the defendant’s conduct legally caused the injuries. . . . As [our Supreme Court] observed . . . [l]egal cause is a hybrid construct, the result of balancing philosophic, pragmatic and moral approaches to causation. The first component of legal cause is causation in fact. Causation in fact is the purest legal application of . . . legal cause. The test for cause in fact is, simply, would the injury have occurred were it not for the actor’s conduct. . . .

“The second component of legal cause is proximate cause, which [our Supreme Court has] defined as [a]n actual cause that is a substantial factor in the resulting harm .... The proximate cause requirement tempers the expansive view of causation [in fact] ... by the pragmatic . . . shaping [of] rules which are feasible to administer, and yield a workable degree of certainty. . . . [T]he test of proximate cause is whether the defendant’s conduct is a substantial factor in bringing about the plaintiffs injuries. . . . The existence of the proximate cause of an injury is determined by looking from the injury to the negligent act complained of for the necessary causal connection.” (Citation omitted; internal quotation marks omitted.) Vona v. Lerner, 72 Conn. App. 179, 189-90, 804 A.2d 1018 (2002), cert. denied, 262 Conn. 938, 815 A.2d 138 (2003).

In Barksdale v. Harris, 30 Conn. App. 754, 756, 622 A.2d 597, cert. denied, 225 Conn. 927, 625 A.2d 825 (1993), the plaintiff appealed from the judgment rendered after a jury verdict in favor of the defendant in an action for personal injuries resulting from an automobile accident. The plaintiff thereafter filed a motion to set aside the verdict, which was denied. Id. On appeal, the plaintiff argued that the trial court improperly instructed the jury on the issue of proximate cause by repeatedly using the words “ ‘the proximate cause,’ ” instead of “ ‘a proximate cause.’ ” (Emphasis added.) Id. Although a proper jury interrogatory on the issue of proximate cause had been submitted, the court, with rare exception, referred to “the proximate cause” throughout the charge and the supplemental charge. Id., 757-58. That, the plaintiff argued, and we agreed, could have misled the jurors into believing that the defendant’s negligence had to be the sole proximate cause of the plaintiffs injuries before the jurors could find the defendant liable. Id.

On the basis of our reasoning in Barksdale, it is apparent that the quoted portion of the instruction in the present case would be improper if it stood alone as the court’s instruction on proximate cause. That is not the end of our analysis, however. We must consider the jury charge as a whole to determine whether the court correctly instructed the jury with respect to the issue of causation.

On two occasions following the improper instruction, the court instructed the jury that the plaintiff must prove that the named defendant’s negligence was a substantial factor causing the plaintiffs injuries. Specifically, the court instructed the jury that “[e]ven though the question of liability is not before you, the plaintiff must prove to you by a fair preponderance of the evidence that the negligence of the defendant was the proximate cause of the injuries claimed. To be entitled to recover, the plaintiff must prove that the negligence of the defendant was a substanlial factor in bringing about the injuries he claims to have suffered. Thus, even though liability or negligence is not an issue or not before you, you must still find that the negligence of the defendant was a substantial factor in causing the plaintiffs injuries before you may bring in a verdict against the defendant.” (Emphasis added.)

Unlike the trial court in Barksdale, the court in this case did not repeatedly misinstruct the jury on the issue of proximate causation. On the basis of the court’s reiteration of the proper charge, we view the initial comment as a mere “technicality . . . [that] could [not] have had a deleterious effect on the jurors’ ability to reach a proper verdict.” Id., 758. Despite the challenged instruction, the court’s charge as a whole was not improper.

II

The plaintiff argues that the court improperly denied his motion to set aside the verdict because the court charged the jury that it had to find an objective, instead of subjective, link between the accident and the plaintiffs medical condition. Because the plaintiff did not properly preserve the claim on the basis of that particular argument, we decline to afford it review.

After the court charged the jury, the jury deliberated and returned a verdict in favor of the plaintiff. The jury awarded zero dollars for both economic and noneco-nomic damages. Upon reviewing the verdict, the court held a brief sidebar with counsel and then requested to have the verdict announced. Before the verdict was accepted and recorded, however, the court requested that the jury reconsider its verdict amount. The court informed the jury that it was not requesting the reconsideration because it disagreed with the verdict or that it expected the jury to return with a different figure. Instead, the court requested the reconsideration because it had never “seen this situation, where it has been this kind of an amount.”

During the second deliberation period, the jury delivered a question to the court inquiring whether “[w]ith liability already a given, is it true we need to establish an objective link between the accident and the medical condition of [the plaintiff]?” (Emphasis added.) In light of the question, and the court’s pending answer, the plaintiffs counsel requested the court to “elaborate more on substantial factor, that it does not have to be the sole cause” because the plaintiffs counsel believed that the jury’s question concerned “the heart of the issue on [the court’s] original charge on causation.” The court summoned the jury and answered “yes” to its submitted question. In addition, the court sua sponte reread the causation charge to the jury. Upon rereading the charge and answering the question, the court inquired as to whether that had answered the jury’s question. Nothing within the record indicates that the jury believed that its question had not been fully answered. The plaintiff did not take exception to the court’s answer or the rereading of the causation charge.

After the jury continued its deliberations for a second time, the jury again returned a verdict in favor of the plaintiff and awarded zero dollars for both economic and noneconomic damages. The verdict was accepted and recorded.

On appeal, the plaintiff argues that he may recover damages in a personal injury action for pain and suffering even when such pain and suffering is evidenced exclusively by the plaintiffs subjective complaints. The plaintiff argues that in this instance, the court’s answer to the juiy’s inquiry instructed the jury that objective evidence of injury was required. Although it is true that “[a] plaintiff may recover damages in a personal injury action for pain and suffering even when such pain and suffering is evidenced exclusively by the plaintiffs subjective complaints”] (emphasis added) Delott v. Roraback, 179 Conn. 406, 409, 426 A.2d 791 (1980); that precise issue was not raised at trial and therefore not preserved for appeal.

“The standard for the preservation of a claim alleging an improper evidentiary ruling at trial is well settled. This court is not bound to consider claims of law not made at the trial. ... In order to preserve an eviden-tiary ruling for review, trial counsel must object properly. ... In objecting to evidence, counsel must properly articulate the basis of the objection so as to apprise the trial court of the precise nature of the objection and its real puipose, in order to form an adequate basis for a reviewable ruling. . . . Once counsel states the authority and ground of his objection, any appeal will be limited to the ground asserted.” (Internal quotation marks omitted.) United Technologies Corp. v. East Windsor, 262 Conn. 11, 30, 807 A.2d 955 (2002).

Our review of the record indicates that at trial, the plaintiffs counsel objected to the re-charge on the ground that it did not clarify issues as to causation. At no time did the plaintiff object to the re-charge with respect to the issue of subjective versus objective medical conditions. Because the plaintiff neither requested clarification of the jury’s question, nor objected to the re-charge for the reason raised on appeal, we decline to review the claim.

Ill

The plaintiffs final argument is that the court improperly denied his motion to set aside the verdict because the court failed to define the term “substantial factor” for the jury.

“The meaning of the term ‘substantial factor’ is so clear as to need no expository definition. . . . Indeed, it is doubtful if the expression is susceptible of definition more understandable than the simple and familiar words it employs.” (Internal quotation marks omitted.) Mather v. Griffin Hospital, 207 Conn. 125, 130, 540 A.2d 666 (1988), quoting Connellan v. Coffey, 122 Conn. 136, 141, 187 A. 901 (1936), and Pilon v. Alderman, 112 Conn. 300, 301-302, 152 A. 157 (1930). Consequently, the court properly declined to define the term “substantial factor.” Because the court’s instruction as a whole was proper, it was not an abuse of discretion to deny the plaintiffs motion to set aside the verdict.

The judgment is affirmed.

In this opinion the other judges concurred.

       Additionally, as discussed in part II, when the court later requested the jury to reconsider its verdict, the court reread the jury instruction concerning the element of causation. At that time, the court excluded the improper portion of the charge and stated that “the plaintiff must prove that the negligence of the defendant was a substantial factor in bringing about the injuries [the plaintiff] claims to have suffered.” (Emphasis added.)

       The plaintiffs counsel stated in relevant part: “I wanted to make it clear in regard, in response to the question, is there an objective link between the accident mechanics, Your Honor. I don’t think it was proper to advise them that, because that’s not the state of the law, in answering yes or no. And as I requested earlier, that the court charge on — the initial charge on causation indicated that if there [were] any other causes of pain, that they should dismiss, they should dismiss the claim, find I think that that charge was not necessarily cured by the charge that Your Honor gave subsequently on substantial factor. And it was — there was some confusion and contradiction in that, and the substantial factor issue should have been explained much further to the jury in light of that.”

       It is important to note that the plaintiff does not argue that the court failed to provide a definition for the term “proximate cause.” Rather, the plaintiff argues that he requested the court to provide a definition of the term “substantial factor” and that the court failed to provide such definition.

       We are not persuaded by the plaintiffs reliance on Tesler v. Johnson, 23 Conn. App. 536, 583 A.2d 133 (1990), cert. denied, 217 Conn. 806, 584 A.2d 1192 (1991). In that case, the defendant claimed that the trial court failed to explain the concept of proximate cause, not that the court failed to provide a definition for the term “substantial factor.” Likewise, we are not persuaded by the plaintiffs reliance on Jacques v. Carter, 2 Conn. App. 27, 476 A.2d 621 (1984), or Phoenix Mutual Life Ins. Co. v. Brenckman, 148 Conn. 391, 171 A.2d 194 (1961). In those cases, the trial court failed to define a term that later was determined to have required additional explanation. In light of Mather v. Griffin Hospital, supra, 207 Conn. 130, further explanation of the term in question in this case is not warranted.


source: Caselaw Access Project

author: MCDONALD, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. VICTOR STAGNITTA
    (AC 22460)
    Lavery, C. J., and Flynn and McDonald, Js.

      Argued October 22, 2002
    officially released January 28, 2003

      Richard E. Condon, Jr., assistant public defender, for the appellant (defendant).

      Robin S. Schwartz, deputy assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Thomas R. Garcia, assistant state’s attorney, for the appellee (state).
   Opinion

MCDONALD, J.

The defendant, Victor Stagnitta, appeals from the judgment of conviction, rendered after a jury trial, of burglary in the first degree in violation of General Statutes § 53a-101 (a) (1) and larceny in the third degree in violation of General Statutes § 53a-124 (a) (2). On appeal, the defendant claims that the state presented insufficient evidence to sustain his conviction of burglary in the first degree because it failed to present evidence that he unlawfully entered or remained in a building, as is required for a conviction of burglary in the first degree. We disagree.

In considering the defendant’s claim, we review the trial transcript to determine what relevant evidence was presented to the jury. The following evidence was presented at trial. The Pond House Cafe (Pond House) is a restaurant in West Hartford serving lunch to the public from 11 a.m. until 2:30 p.m. and dinner from 5 p.m. to 9 p.m. A separate banquet hall also is available for private parties. The kitchen and a management office are in the back of the restaurant. The defendant had been employed by the Pond House as a dishwasher for the four to six months prior to July 14, 2000. The week preceding July 14, the defendant had failed to report to work, and the Pond House management placed him on a leave of absence. The management did not convey to the defendant his leave of absence status, which required him to request his job back when he could give an explanation for his absence from work.

On the afternoon of July 14, 2000, Paul DeVeau, the assistant general manager at the Pond House, received a telephone call informing him that the defendant was coming to the Pond House to pick up his check and that he was in “rough shape.” As a safety precaution, DeVeau met the defendant outside the restaurant and gave him his check, which DeVeau then cashed for the defendant. Thereafter, the defendant left.

Later that night, at approximately 11:45 p.m., the defendant returned to the Pond House, entering through the back door. The defendant proceeded to walk through the kitchen and into the inner management office where DeVeau was working on the daily receipts, including cash. That office is used by the restaurant’s management to manage the business, to consult with employees and, among other things, to collect and calculate the daily cash receipts. The office was entered via a mop closet from the main hallway of the restaurant. The door to the office locked automatically when it was closed, and only the three Pond House managers had keys. The office was not visible from outside the restaurant building. Upon entering the office, the defendant, brandishing an eight to ten inch kitchen knife, demanded the money. DeVeau was shocked and scared. Taking the defendant’s demand seriously, he handed the defendant an envelope containing $1171.01.

After DeVeau gave the defendant the envelope, he asked the defendant to leave. Instead of leaving, the defendant and DeVeau engaged in a ten to fifteen minute conversation. During the conversation, the defendant put the knife in his pants pocket. When DeVeau attempted to give the defendant a hug, however, the defendant brandished the weapon again. During the conversation, the defendant told DeVeau that he needed the money to purchase enough narcotics to kill himself. The defendant stated that he “kind of thought” that he did not have a job anymore, and DeVeau told him that was not true, that if he could prove that he could get help, he would have a job at the Pond House. While the defendant and DeVeau talked, an employee backed into the office door, which was still ajar. Although DeVeau did not fear that the defendant would hurt him, DeVeau did not want anybody else “getting hurt” and told the defendant: “Take the money and go. I do not want anybody getting hint. Put the knife away and leave. Nobody will stop you.” The defendant then turned to leave. In an attempt to prevent the defendant from hurting himself, DeVeau grabbed the defendant’s wrists and told him he could not leave. The defendant resisted, and DeVeau called for assistance. Two employees working in the kitchen came to DeVeau’s aid and held the defendant down until police arrived.

Following a juiy trial, the defendant was found guilty of burglary in the first degree and larceny in the third degree, and was sentenced on those counts. This appeal followed.

“In reviewing a sufficiency of the evidence claim, we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . . The scope of our factual inquiry on appeal is limited. This court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury’s verdict. . . . [T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. . . . The rule is that the jury’s function is to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. ... In this process of review, it does not diminish the probative force of the evidence that it consists . . . of evidence that is circumstantial rather than direct.” (Emphasis in original; internal quotation marks omitted.) State v. Estrada, 71 Conn. App. 344, 350, 802 A.2d 873, cert. denied, 261 Conn. 934, 806 A.2d 1068 (2002).

“On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the jury’s verdict of guilty.” (Internal quotation marks omitted.) State v. Watts, 71 Conn. App. 27, 32, 800 A.2d 619 (2002).

Our Penal Code prorides: “A person is guilty of burglary in the first degree when he enters or remains unlawfully in a building with intent to commit a crime therein and (1) . . . is armed with ... a deadly weapon or dangerous instrument . . . .” General Statutes § 53a-101 (a). “A person ‘enters or remains unlawfully’ in or upon premises when the premises, at the time of such entry or remaining, are not open to the public and when the actor is not otherwise licensed or privileged to do so.” General Statutes § 53a-100 (b).

“To enter unlawfully means to accomplish an entry by unlawful means, while to remain unlawfully means that the initial entering of the building . . . was lawful but the presence therein became unlawful because the right, privilege or license to remain was extinguished. When either of these situations is established, the threshold element of burglary is present.” State v. Edwards, 10 Conn. App. 503, 511, 524 A.2d 648, cert. denied, 204 Conn. 808, 528 A.2d 1155 (1987).

The defendant’s sufficiency of the evidence claim is based on the premise that he could not have been convicted of burglary in the first degree because (1) the Pond House was open to the public at the time he entered, (2) the office where the alleged burglary occurred was not a separate unit from the public areas of the Pond House and (3) as an employee of the Pond House, he was licensed or privileged to enter the Pond House and the office and, therefore, did not unlawfully enter or remain in the Pond House. We disagree.

We conclude that the defendant’s claim that the Pond House was open to the public when he entered is without merit. It is the defendant’s contention that because the Pond House had rented its banquet hall to a wedding party until midnight on July 14, 2000, the establishment was open to the public when he entered.

The evidence presented to the jury established that the Pond House was not open to the public at 11:45 p.m. on July 14, 2000. DeVeau testified that on July 14, 2000, the Pond House served lunch from 11 a.m. until 2:30 p.m. and dinner from 5 p.m. until 9 p.m. Alter 9 p.m., patrons no longer were seated and once those who already had been seated finished their dinner, the cafe would be closed, as it was at 11:45 p.m. that evening. Accordingly, after 9 p.m., the Pond House no longer was open to the public for new patrons. Although the Pond House’s banquet hall was rented to a private party that evening until midnight, there is no support for the defendant’s claim that the Pond House was open to the public. DeVeau’s uncontroverted testimony revealed that the reception was not open to the public. Rather, it was a private party for the 100 invited wedding guests only. Accordingly, there was sufficient evidence before the jury to establish that when the defendant entered the Pond House’s kitchen at 11:45 p.m., he entered the restaurant at a time when it was not open to the public.

Furthermore, there was sufficient evidence before the jury to establish under our burglary statutes that the management office was a separate unit from those areas of the Pond House that were open to the public. “For purposes of first degree burglary under § 53a-101 (a), the term building is defined separately in § 53a-100 (a) (1) as follows: Where a building consists of separate units, such as, but not limited to separate apartments, offices or rented rooms, any unit not occupied by the actor is, in addition to being a part of such building, a separate building . . . .” (Internal quotation marks omitted.) State v. Thomas, 210 Conn. 199, 205, 554 A.2d 1048 (1989).

In State v. Hafford, 252 Conn. 274, 311-13, 746 A.2d 150, cert. denied, 531 U.S. 855, 121 S. Ct. 136, 148 L. Ed. 2d 89 (2000), our Supreme Court determined that the trial court in that case reasonably could have concluded that a rear utility room at a gasoline station’s convenience store was a separate unit and, therefore, a “building” under § 53a-100 (a) (1). The court based its decision on the fact that the utility room was a separately unit distinct from the convenience store, it was not visible from the outside, it could be reached only by crossing the station’s three bay garage area, it had a business purpose that was different from that of the convenience store, and painted on the door of the rear utility room were the words “Private, Employees Only.” Id., 312-13.

In the present case, the jury heard testimony that to enter the office, one first would have to go through the mop closet, which was off the main hallway and had a door. The office also could be accessed from the kitchen through an open area to the mop closet. The office itself also had a door that, when closed, automatically locked. Only the three managers at the Pond House had keys to the office. The office is not visible from outside of the Pond House. The Pond House, as a restaurant, was in the business of preparing and serving food, while the office that the defendant entered was used as a secure area for management, among other things, to count the daily proceeds and to interact with employees.

The defendant relies on the testimony of Louis Lista, the owner of the Pond House, who testified that “people were always going in and out” of the office. Lista’s statement, however, referred to employees entering the office, not the general public. Nowhere in the testimony elicited is there a suggestion that the public was permitted to enter the office. We conclude that there was evidence that the office was a separate unit and was not open to the public.

The defendant argues that because he was an employee at the Pond House, he was licensed and privileged to enter the establishment and the inner office as he did. DeVeau testified that when it came to employees using the back entrance that the defendant used to enter the Pond House, the Pond House had an “open door policy,” which was not limited to the times when an employee was scheduled to work. Additionally, Lista testified that employees would enter the office “[f]or any number of reasons . . . asking questions, finding out information, general gossip . . . people were always going in and out.”

The defendant claims that he was employed by the Pond House on July 14, 2000. There was evidence that the defendant was on a leave of absence because he had failed to report for work for one week and that the defendant “kind of thought” that he no longer had a job there. For purposes of this appeal, we will assume, however, that the defendant was an employee of the Pond House.

“A license in real property is defined as a personal, revocable, and unassignable privilege, conferred either by writing or parol, to do one or more acts on land without possessing any interest therein. . . . Generally, a license to enter premises is revocable at any time by the licensor. ... It is exercisable only within the scope of the consent given. . . . The phrase, ‘licensed or privileged,’ as used in General Statutes § 53a-100 (b) is meant as a unitary phrase, rather than as a reference to two separate concepts.” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Allen, 216 Conn. 367, 380, 579 A.2d 1066 (1990).

Although the testimony at trial established that employees generally were licensed or privileged to enter the Pond House through the back entrance and to go into the office, that privilege did not extend to entering the office displaying an eight to ten inch knife and demanding money. See State v. Reyes, 19 Conn. App. 179, 191-92, 562 A.2d 27 (1989), cert. denied, 213 Conn. 812, 568 A.2d 796 (1990). Accordingly, there was sufficient evidence before the jury to find that even if the defendant had a license or privilege to enter the Pond House and the inner office, that did not authorize him to enter the office as he did on July 14, 2000.

In support of his argument, the defendant relies on State v. Thomas, supra, 210 Conn. 199. The defendant cites our Supreme Court’s language in Thomas requiring the element of terror that is implicit in our burglary statutes. Quoting the commission to revise the criminal statutes, our Supreme Court stated: “The purpose of this definition is to make clear that only the kind of entry or remaining which is likely to terrorize occupants is prohibited by the crime of burglary.” (Internal quotation marks omitted.) Id., 207. The defendant’s reliance on that language is misplaced. The language that the defendant quotes is immediately followed by: “Thus, when the building is, at the time, open to the public, or the actor is otherwise licensed or privileged to be there, the element of terror is missing and the requirement is not met.” (Emphasis added; internal quotation marks omitted.) Id. We conclude that the decision in Thomas is inapposite because it is based on a factual scenario different from the facts before us.

The defendant’s claim that the terror element was lacking is unavailing in light of DeVeau’s testimony. DeVeau testified that he was shocked and scared when he saw the defendant enter the office with a knife and demand money. DeVeau took the defendant’s actions seriously. Those actions created an “inherently threatening situation.” State v. Reyes, supra, 19 Conn. App. 192. The defendant argues that DeVeau could not have been afraid because after DeVeau handed the defendant the envelope containing a portion of the day’s proceeds, the two engaged in a ten to fifteen minute conversation. After handing the envelope to the defendant, however, DeVeau twice asked the defendant to leave, the second time out of fear that the defendant would harm someone. Accordingly, we conclude that any right that the defendant may have had to enter and to remain in the office was extinguished under the circumstances. See State v. Clark, 48 Conn. App. 812, 825, 713 A.2d 834, cert. denied, 245 Conn. 921, 717 A.2d 238 (1998); State v. Gelormino, 24 Conn. App. 563, 571-72, 590 A.2d 480, cert. denied, 219 Conn. 911, 593 A.2d 136 (1991); State v. Reyes, supra, 19 Conn. App. 192-93.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant was acquitted of robbery in the first degree in violation of General Statutes § 53a-134 (a) (3).

       At trial, the defendant sought a judgment of acquittal as to the burglary count, which the court denied. That is the defendant’s sole ground of appeal.


text:
    PINNEY, PAYNE, VAN LENTEN, BURRELL, WOLFE AND DILLMAN, P.C., ET AL. v. SUSAN O. TAMSETT
    (AC 22489)
    Lavery, C. J., and Schaller and Dranginis, Js.
    Argued October 17, 2002
    officially released January 28, 2003

      Susan O. Tamsett, pro se, the appellant (defendant).

      Christopher G. Winans, for the appellee (named plaintiff).
   Opinion

SCHALLER, J.

The defendant, Susan O. Tamsett, appeals from the judgment of the trial court confirming an arbitration award in favor of the plaintiff attorney, Sheldon Rosenbaum. On appeal, the defendant claims that the court improperly (1) confirmed the arbitration panel’s decision in favor of Rosenbaum when she wanted to challenge that decision on the basis of a conflict of interest regarding the composition of the arbitration panel, (2) accepted the arbitration decision even though she was not provided a “blind” arbitration because the professional members of the panel personally knew Rosenbaum, (3) approved the decision of the arbitration panel even though the lay member of the panel was found to have had a previous relationship with the professional members of the panel and (4) rendered judgment on the basis of a purported agreement that had not been submitted to the court.

The following facts and procedural history are relevant to our resolution of the defendant’s appeal. The defendant was a client of Rosenbaum, an attorney who was licensed to practice law in this state prior to his death in August, 2001. During the representation, the defendant’s bill for legal services rendered reached $18,534.63. Rosenbaum claimed that the defendant had failed to pay $12,191.29 of the balance because she was not satisfied with the result of the legal proceedings. The defendant claimed that a portion of those fees were billed to her ex-husband. To resolve the dispute with Rosenbaum, the defendant filed a fee arbitration application with the Connecticut Bar Association (bar association). Following an arbitration hearing held before a three person panel of the bar association, the arbitration panel awarded Rosenbaum $7000 on June 6, 2001.

On July 19, 2001, after the expiration of the statutory time limit established to file an application to vacate or to modify an arbitration award, Rosenbaum and the law firm that employed him, the plaintiff Pinney, Payne, Van Lenten, Burrell, Wolfe and Dillman, P.C. (law firm), filed an application to confirm. Rosenbaum subsequently died on August 13, 2001. A hearing then was held on the plaintiffs’ confirmation application on October 29, 2001, which the court granted. The defendant now appeals from that decision.

At oral argument before this court, the attorney for the law firm sought to substitute as a plaintiff the executrix of Rosenbaum’s estate. We initially granted the motion to substitute on October 28,2002. Subsequently, the defendant filed a motion requesting permission to file a late motion to reconsider our decision to grant the motion to substitute, which we have granted. Before we address the issues raised by the defendant on appeal, we must first determine whether the law firm or Rosen-baum had standing to seek to have the arbitration award confirmed. After our careful review of the record, we conclude that at the time the judgment confirming the award was rendered, neither party had standing.

“If a party is found to lack standing, the court is without subject matter jurisdiction to determine the cause. . . . Further, the court has a duty to dismiss, even on its own initiative, any [portion of the] appeal that it lacks jurisdiction to hear. . . . see Daley v. Hartford, 215 Conn. 14, 27-28, 574 A.2d 194, cert. denied, 498 U.S. 982, 111 S. Ct. 513, 112 L. Ed. 2d 525 (1990) (the question of subject matter jurisdiction, because it addresses the basic competency of the court, can be raised by any of the parties, or by the court sua sponte, at any time). . . .

“Standing is ... a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented. . . . These two objectives are ordinarily held to have been met when a complainant makes a colorable claim of direct injury [that the complainant] has suffered or is likely to suffer, in an individual or representative capacity. Such a personal stake in the outcome of the controversy . . . provides the requisite assurance of concrete adverseness and diligent advocacy.” (Citations omitted; internal quotation marks omitted.) Ramos v. Vernon, 254 Conn. 799, 808-809, 761 A.2d 705 (2000).

I

General Statutes § 52-417 provides in relevant part: “At any time within one year after an award has been rendered and the parties to the arbitration notified thereof, any party to the arbitration may make application to the superior court for the judicial district in which one of the parties resides ... for an order confirming the award. . . .” (Emphasis added.) “[Statutory language is to be given its plain and ordinary meaning. ... If the language of the statute is clear, it is assumed that the words themselves express the intention of the legislature and there is no room for judicial construction of the statute.” (Citations omitted.) Mazur v. Blum, 184 Conn. 116, 118-19, 441 A.2d 65 (1981). Section 52-417 clearly states that only a party to the arbitration can seek to have a court confirm an arbitration award. See Hartford v. Local 308, 171 Conn. 420, 429, 370 A.2d 996 (1976).

In this case, the parties to the arbitration were the defendant and Rosenbaum. The law firm was not involved in the arbitration. It did not become involved in this case until it joined Rosenbaum’s application to have the arbitration award confirmed. Consequently, the law firm was not a party to the arbitration and, consequently, did not have standing to seek to have the arbitration award confirmed. See General Statutes § 52-417.

II

This case originated when the defendant sought arbitration to settle a fee dispute against Rosenbaum. Subsequent to Rosenbaum’s seeking to have the arbitration award confirmed, Rosenbaum passed away. The trial court, however, continued with the proceedings and held a hearing and granted the confirmation application after Rosenbaum’s death.

“Although at common law the death of a sole plaintiff or defendant abated an action ... by virtue of [General Statutes] § 52-599, Connecticut’s right of survival statute, a cause of action can survive if a representative of the decedent’s estate is substituted for the decedent. It is a well established principle, however, that [d]uring the interval . . . between the death and the revival of the action by the appearance of the executor or administrator, the cause has no vitality. The surviving party and the court alike are powerless to proceed with it.” (Citation omitted; emphasis added; internal quotation marks omitted.) Burton v. Browd, 258 Conn. 566, 570-71, 783 A.2d 457 (2001). Accordingly, without a valid motion to substitute a plaintiff qualified to proceed on behalf of Rosenbaum, the court did not have the authority to continue with the arbitration confirmation process. See Barton v. New Haven, 74 Conn. 729, 731, 52 A. 403 (1902). Upon the death of Rosenbaum, “[t]he court and [Rosenbaum] became, for the while, as we have already had occasion to observe, powerless to take any action to advance [the] progress [of the matter]. The machinery of the case was stopped.” Id.

In this case, the motion to substitute was filed in the trial court and at oral argument before this court by the law firm, which we have determined to lack standing to be a party. Without standing, the law firm cannot file a motion to substitute. Without such a motion, the trial court was without authority to proceed with the confirmation hearing. Upon Rosenbaum’s death, he no longer was a party to the underlying arbitration confirmation action, and it is incumbent upon his executrix to seek to be substituted as a plaintiff for the case to be reinstated. Accordingly, the court improperly confirmed the arbitration award on October 29, 2001.

The judgment confirming the arbitration award is vacated. The defendant’s motion to reconsider our granting of the motion to substitute as the plaintiff the executrix of the estate of the plaintiff Sheldon Rosen-baum is granted, and our prior decision granting the motion to substitute is vacated; the case is remanded for further proceedings not inconsistent with this opinion.

In this opinion the other judges concurred.


author: LAVERY, C. J.

text:
    CUMBERLAND FARMS, INC. v. ZONING BOARD OF APPEALS OF THE TOWN OF WESTBROOK
    (AC 21047)
    Lavery, C. X, and Dranginis and Flynn, Js.

      Argued October 28, 2002
    officially released January 28, 2003

      Ralph W. Johnson III, with whom, on the brief, were John B. Farley, Duncan J. Forsyth and Erik J. Ness, for the appellant (defendant).

      David M. Royston, for the appellee (plaintiff).
   Opinion

LAVERY, C. J.

The defendant zoning board of appeals of the town of Westbrook (board) appeals from the judgment of the trial court sustaining the appeal of the plaintiff, Cumberland Farms, Inc., from the decision of the board to uphold the decision of the zoning enforcement officer denying the plaintiffs application to reopen a gasoline station. On appeal, the board argues that the court improperly substituted its judgment for that of the board. We agree with the board, and, accordingly, reverse the judgment of the trial court.

The following facts, as recited in the court’s memorandum of decision, are relevant to the board’s appeal. The Bongiomi family formerly owned the subject property located at 1223 Boston Post Road in Westbrook. In 1941, the Bongiomis opened a gasoline station on the property and from 1975 through 1981 leased the station to David S. Anderson. The property thereafter was conveyed to the estate of John Bongiomi and was leased to Thomas H. Matus doing business as Tom’s Super Saver Gasoline station.

In December, 1988, it was discovered that underground gasoline storage tanks on the property had leaked and contaminated the subject property as well as abutting property located at 1211 Boston Post Road, which was owned by the plaintiff. Between January 4 and January 11,1989, the department of environmental protection (department) ordered the removal of the gasoline storage tanks from the property. On January 14, 1989, the department commenced remediation of the property. As of November 15, 1993, the department had incurred expenses of $348,228.44 in remediating the property and on February 14, 1994, filed a hen against the property.

On March 2, 1989, the plaintiff brought an action against John Bongiomi, trustee of the Bongiomi estate, and Matus for the damages it had sustained as a result of the contamination of its abutting property and obtained an attachment of the property. The department intervened in that action to recover its costs from remediating the property. On May 13,1994, the plaintiff, the department, the Bongiomi estate and Matus filed a stipulation for judgment. Pursuant to the judgment, the Bongiomi estate transferred the property to the plaintiff, which released its claims against the Bongiomi estate, and Matus agreed to vacate the property. The department released its lien, and the plaintiff entered into a consent order with the department to continue the remediation of the property. The Bongiomi estate conveyed the property to the plaintiff on August 25, 1994.

While the litigation and remediation were taking place, the zoning commission of the town of Westbrook revised its regulations, effective June 21, 1991. Section 4.55.01 of the revised regulations prohibits the use of a fuel storage facility in the commercial town center district (district) within which the property lies.

In September, 1996, the plaintiff filed a site plan application, proposing to demolish the existing gasoline station on the property and to build a new gasoline station on a site consisting of that property merged with its abutting property. That application was denied on the ground that a gasoline station was a prohibited use in the district. On July 1, 1997, the plaintiff filed a zoning compliance and health permit application with the zoning enforcement officer to reopen the former gasoline station on the property. On July 23, 1997, the zoning enforcement officer denied the application, concluding that (1) the use was not permitted in the district, (2) the use was not a preexisting, nonconforming use and (3) the use was abandoned.

The plaintiff appealed to the board from the zoning enforcement officer’s decision. Following a public hearing, the board upheld the decision of the zoning enforcement officer. The plaintiff then appealed to the trial court, which reversed the decision of the board and sustained the appeal on the ground that the evidence in the record was insufficient to support the board’s determinations. We granted the board’s petition for certification to appeal and now conclude that the court improperly sustained the plaintiffs appeal.

I

The board first argues that the court improperly substituted its judgment for that of the board, which had determined that a gasoline station was not a valid nonconforming use because it had been discontinued prior to the enactment of zoning regulations prohibiting such a use. The plaintiff counters that the court properly concluded that the evidence in the record did not support the board’s determination that the gasoline station was not a valid nonconforming use of the property. We agree with the board.

The standard of review in zoning matters is well settled. “In reviewing the actions of a zoning board of appeals, we note that the board is endowed with liberal discretion and that its actions are subject to review by the courts only to determine whether they are unreasonable, arbitrary or illegal. . . . The burden of proof to demonstrate that the board acted improperly is upon the party seeking to overturn the board’s decision.” (Citation omitted; internal quotation marks omitted.) Wing v. Zoning Board of Appeals, 61 Conn. App. 639, 643, 767 A.2d 131, cert. denied, 256 Conn. 908, 772 A.2d 602 (2001).

“The settled standard of review of questions of fact determined by a zoning authority is that a court may not substitute its judgment for that of the zoning authority as long as it reflects an honest judgment reasonably exercised. . . . The court’s review is based on the record, which includes the knowledge of the board members gained through personal observation of the site ... or through then personal knowledge of the area involved.” (Internal quotation marks omitted.) Children's School, Inc. v. Zoning Board of Appeals, 66 Conn. App. 615, 627, 785 A.2d 607, cert. denied, 259 Conn. 903, 789 A.2d 990 (2001). “The trial court’s function is to determine on the basis of the record whether substantial evidence has been presented to the board to support [the board’s] findings. . . . [E]vidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred.” (Internal quotation marks omitted.) Stancuna v. Zoning Board of Appeals, 66 Conn. App. 565, 568, 785 A.2d 601 (2001).

In denying the plaintiffs request to overturn the decision of the zoning enforcement officer, the board indicated that the reopening of the gasoline station was not permitted as a preexisting, nonconforming use. The court, however, reversed the board’s decision as erroneous. In so holding, the court rejected the board’s argument that the use of the property as a gasoline station ceased in 1989 and was not in existence at the time of the adoption of the new regulations in 1991.

General Statutes § 8-2 (a) provides in relevant part that zoning regulations “shall not prohibit the continuance of any nonconforming use, building or structure existing at the time of the adoption of such regulations. Such regulations shall not provide for the termination of any nonconforming use solely as a result of nonuse for a specified period of time without regard to the intent of the property owner to maintain that use. . . .” A nonconformity has been defined as “a use or structure [that is] prohibited by the zoning regulations but is permitted because of its existence at the time that the regulations [were] adopted.” Adolphson v. Zoning Board of Appeals, 205 Conn. 703, 710, 535 A.2d 799 (1988). “For a use to be considered nonconforming . . . that use must possess two characteristics. First, it must be lawful and second, it must be in existence at the time that the zoning regulation making the use nonconforming was enacted.” (Emphasis in original; internal quotation marks omitted.) Cummings v. Tripp, 204 Conn. 67, 91-92, 527 A.2d 230 (1987). “The party claiming the benefit of a nonconforming use bears the burden of proving that the nonconforming use is valid.” Connecticut Resources Recovery Authority v. Planning & Zoning Commission, 225 Conn. 731, 744, 626 A.2d 705 (1993).

It is undisputed that in the present case, the premises were used as a gasoline station from 1941 until the removal of the gasoline storage tanks in January, 1989. On June 21, 1991, the zoning regulations were revised to prohibit the use of a fuel storage facility in the district. On that date, the property, which was owned by the estate of John Bongiomi, was not being used as a gasoline station.

At the public hearing before the board, the counsel for the plaintiff repeatedly was questioned regarding the intent of the owner of the property. Vice Chairman Stephen Doerrer even suggested that the board recess the hearing to enable it to hear testimony from John Bongiomi, the former tmstee of the Bongiomi estate, on that issue. Counsel for the plaintiff, however, did not request a continuance to present evidence regarding the intent of Bongiomi or attorney Maura K. Finan, the successor trustee of the Bongiomi estate. The plaintiff relied, rather, on the testimony and affidavits of its employees and attorneys on the issue of the owner’s intent. Included in the record before the board, however, was a letter dated September 19,1997, from Finan indicating that she had been appointed trustee of the Bongiomi estate on May 28, 1990, and that as trustee, she “did not have any intention of reviving the gasoline station business or installing new fuel storage tanks.”* ** The plaintiff did not submit any evidence to the board challenging Finan’s authority with regard to the letter, nor did it seek to strike the letter from the record. Rather, counsel for the plaintiff argued that through the letter, Finan was not evincing an intent to abandon a property right.* *

We conclude, contrary to the trial court, that the evidence before the board supports its determination that the use of the property as a gasoline station was not a preexisting, nonconforming use. The substantial evidence in the record, primarily Finan’s letter, supports the board’s conclusion that the owner of the property at the time of the change in the regulations did not intend to revive the gasoline station business. We therefore conclude that the board properly exercised its discretion in upholding the decision of the zoning enforcement officer and concluding that the plaintiff had not satisfied its burden of establishing the validity of the proposed gasoline station use as a preexisting, nonconforming use. The court, therefore, improperly substituted its judgment for that of the board and improperly reversed the decision of the board on that ground.

II

The board next argues that the court improperly substituted its judgment for that of the board, which had determined that any claimed nonconforming use had been abandoned. The plaintiff argues in response that the evidence in the record did not support the board’s determination that the gasoline station use on the property was abandoned. We agree with the board.

“Abandonment is a question of fact which implies a voluntary and intentional renunciation. Nevertheless, the intent to abandon may be inferred as a fact from the circumstances. . . . The mere discontinuance of a use where there is no intent to abandon is not enough. ... To establish abandonment, the intention on the part of the owner [must be] to relinquish permanently the nonconforming use. . . . Because the conclusion as to the intention of the landowner is an inference of fact, it is not reviewable unless it was one which the trier could not reasonably make.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Cummings v. Tripp, supra, 204 Conn. 93.

In addition to holding that the use was not a preexisting, nonconforming use, the board alternatively held that the use was abandoned. The court held, however, that there was substantial evidence in the record that the use of the property as a gasoline station was suspended for reasons beyond the owners’ control for a reasonable period of time. Accordingly, the court held that the board’s finding that the use had been abandoned was illegal, arbitrary and an abuse of discretion. Although we do not disagree with the court’s reasonable interpretation of the evidence, we nonetheless conclude that substantial evidence existed in the record from which the board reasonably could have found that the Bongiomi estate had abandoned the gasoline station use.

It is undisputed that the gasoline storage tanks were removed from the property in January, 1989. At the time that the tanks were removed, the property was owned by the Bongiomi estate. The estate sold the property to the plaintiff in August, 1994. At no time between the removal of the tanks in January, 1989, and the sale of the property in August, 1994, did the estate take any action to restore or to revive the property as a gasoline station. The board, however, was presented with the letter from Finan, referred to previously, in which she stated that “[a]s trastee [of the estate], I did not have any intention of reviving the gasoline station business or installing new fuel storage tanks.” With regard to the letter, the court stated: “Given the pendency of the litigation and remediation, it was reasonable for Finan to state that she had no intention of reviving the gasoline station during her tenure as trastee of the Bongiomi estate. The fact that she had no intention to reopen the gasoline station during her position as trustee, however, does not warrant a finding that she intended to permanently relinquish the use of the property as a gasoline station. Considering the circumstances, it would not have been economically prudent for the Bongiomi estate to reopen the gasoline station during the period between . . . when the contamination was discovered and . . . when the property was conveyed to [the plaintiff].” Although that is a reasonable interpretation of the evidence, the board reached a contrary conclusion based on the Finan letter, which was equally reasonable. The court, therefore, improperly substituted its judgment for that of the board with regal’d to the intent of the Bongiomi estate to abandon the use of the property as a gasoline station.

The judgment is reversed and the case is remanded with direction to render judgment dismissing the plaintiffs appeal.9

In this opinion the other judges concurred.

       The court held that the board’s determinations that (1) the use of the gasoline station on the property had been abandoned and (2) the use of the properly as a gasoline station was not a preexisting, nonconforming use were erroneous. The court held that the board’s determination that the use of the property as a gasoline station was not permitted in the district was not erroneous. That holding has not been challenged on appeal.

       Section 4.55.01 of the revised Westbrook zoning regulations provides: “The following are prohibited uses in the CTC District.
      “(a) Repair garage, auto dealership, truck terminal, fuel storage facility, car wash.
      “(b) The following shall be prohibited uses in the CTC District unless connected to a municipal sewer treatment facility: Laundromat, dry cleaner, and beauty salon.”

       The transcript reveals the following:
      “Doerrer: That’s my point. I’m trying to get the intent of Bongiomi. He had no intent either.

        “Ronald Grabarek [plaintiffs vice president for real estate]: He did have intent. He didn’t have incentive to do it.
      “Doerrer: I’d like to ask him that question, see what his [intentions] were.
      “[Plaintiffs Counsel]: This would be the only way to settle 1hat litigation because it ended up—
      “Doerrer: “Can we take a ten minute recess? Maybe we can get a hold of Mr. Bongiomi and have him come down to find out what his [intentions] were.
      “[Board chairman] John L. Hall III: Steve, I think we need to let the applicant finish presenting his case.
      “Doerrer: Okay.”

       The letter, addressed to board chairman John L. Hall III, states: “On May 28, 1990,1 was appointed trustee of the Estate of John F. Bongiomi which owned a parcel of land located at 1223 Boston Post Road, Westbrook, Connecticut. This parcel was used as a gasoline service station until approximately 1989 when the Connecticut Department of Environmental Protection began to remediate certain contamination caused by the release of petroleum from the underground fuel storage tanks on the property. The underground storage tank system was removed as part of the remediation effort. As trustee, I did not have any intention of reviving the gasoline station business or installing new fuel storage tanks.
      “On August 24, 1994,1 executed a trustee’s deed conveying the property to Cumberland Farms, Inc. This deed is recorded at Volume 166, Page 82 of the Westbrook Land Records.”

       On September 13,2002, this court ordered the parties to file supplemental briefs addressing “what authority Maura K. Finan, trustee for the estate of John Bongiomi, had with regard to the subject property; see LaFlamme v. Dallessio, 261 Conn. 247, 259 [802 A.2d 63] (2002); Claydon v. Finizie, 7 Conn. App. 522 [508 A.2d 845] (1986); and to state what other evidence was before the board regarding whether the use was a preexisting, nonconforming use and whether the use was abandoned.” The parties have complied with that order.

       At the public hearing, the plaintiffs counsel argued: “[W]ith respect to the letter from Maura K. Finan. I just ask you to look at it in the context of what we have been saying. The critical question, I think, is the last sentence of the first paragraph. I think it’s very carefully written. It says, ‘As trustee, I did not have any intention of reviving the gasoline station business or installing new fuel storage tanks.’ And I think, as we have indicated here previously when the question was asked, when did they go in and put tanks in there? Wouldn’t there be that evidence of some continuation of the business. And what we indicated is, because of the litigation and because of the cost that the state had incurred and was incurring in their lien on the property, there would be no incentive for the trustee to put in tanks. There would be no incentive for them to put in tanks. I submit to you that to say to you that 1, as trustee, did not intend to reinstall,’ is not the same thing as saying, ‘I, as trustee, intended to give up a property right relating to the property.’ Because a trustee could not do that. A trustee has a fiduciary responsibility to maintain the value of that property. So, there is a big difference between what the trustee said and abandoning a property right.”

       In light of that conclusion, it is unnecessary for us to consider the board’s additional and related claim that the court impermissibly established a new standard for determining whether a permitted use has been discontinued prior to a change in zoning regulations.

       We address that issue because the trial court addressed it and it was brief by the parties. We are mindful, however, that the board’s action must be sustained if even one of the stated reasons for the board’s decision is sufficient to support that decision. See Bloom v. Zoning Board of Appeals, 233 Conn. 198, 208, 658 A.2d 559 (1995).

       Although the court addressed whether the plaintiff had abandoned the gasoline station use, it is the intent of the prior owner, not the current owner, that is controlling on that issue. Caserta v. Zoning Board of Appeals, 41 Conn. App. 77, 674 A.2d 855 (1996); R. Fuller, 9A Connecticut Practice Series: Land Use Law and Practice (2d Ed. 1999) § 52.5, p. 566 (“[w]here a prior owner discontinued the use, the question then is whether that owner, not the current owner, intended to resume the use”). We have concluded that the court improperly substituted its judgment for that of the board with regard to the intent of the Bongiorni estate to abandon the use of the property as a gasoline station. It is unnecessary for us to consider the intent of the plaintiff on that issue.

       Our conclusions in this case, that there was sufficient evidence before the board to support its determinations that the gasoline station use was not a preexisting, nonconforming use and, alternatively, that the use had been abandoned, are based solely on the evidence submitted before the board. We do not hold that the removal of gasoline storage tanks pursuant to an environmental remediation order constitutes evidence of the abandonment of a preexisting, nonconforming use.