text:
    JOHN C. KUCEJ ET AL. v. TOWN CLERK OF THE TOWN OF FAIRFIELD ET AL.
    (13617)
    Dupont, C. J., and Spear and Healey, Js.

      Argued January 22
    decision released March 26, 1996

      Linda P. Dunphy, for the appellants (plaintiffs).

      James E. Rice, assistant town attorney, with whom, on the brief, was Linda R. Pesce, for the appellees (defendants).
   DUPONT, C. J.

In this declaratory judgment action, the plaintiffs seek a judgment declaring a decision of the zoning board of appeals of the town of Fairfield (board) null and void. The trial court refused to grant declaratory relief and rendered judgment in favor of the defendants. The plaintiffs appealed from the judgment to this court. Because we conclude that the trial court did not have jurisdiction to render a judgment on the present record, we reverse the judgment and remand the case for further proceedings.

The following facts are necessary for the resolution of this appeal. On June 23, 1993, the plaintiffs applied to the board for a variance for their property located at 1011 Fairfield Beach Road in the town of Fairfield. Legal notice of a public hearing on the plaintiffs’ application was published in a Fairfield newspaper on June 25 and July 2, 1993. The legal notice listed the date of the public hearing as July 8, 1993. In addition to legal notice, the board posted notice on the plaintiffs’ property that provided that a public hearing on the plaintiffs’ application would be held on July 5, 1993. The hearing was actually conducted on July 8, 1993. Thereafter, the board issued a decision granting in part, and denying in part, the plaintiffs’ variance application.

On July 29, 1993, the plaintiffs filed this action in the Superior Court seeking to void the board’s decision, which partially denied their request for a variance. The plaintiffs claimed that notice of the public hearing was improper and contradictory and, thus, deprived them of due process of law. On April 26, 1993, the trial court issued a memorandum of decision in which it found that the plaintiffs had abandoned the issue of whether the notice was improper due to the plaintiffs’ failure to brief that issue. In fact, no brief had been filed in this case. The trial court, however, had reviewed the brief in a companion zoning appeal and concluded that the legal notice that was published in a Fairfield newspaper complied with General Statutes § 8-7. The trial court also stated that the “[posted] notice was not legally required and amounts to personal not statutory notice. While this additional notice may have been misleading, it did not mislead the plaintiffs, who attended or were represented at the public hearing on July 8. Attendance at the hearing is a waiver of any defect in the notice as to them.” Accordingly, the trial court rendered judgment for the defendants.

We initially note that the relief sought by the plaintiffs, as stated in their complaint, is for “[a]n order declaring the decision rendered by the defendant board be declared null and void.” Neither the phrase “declaratory judgment” nor the phrase “declaratory relief” appears in the complaint; we nonetheless conclude that the language used in the complaint is sufficient to be treated as alleging that the plaintiffs sought a declaratory judgment. See Beit v. Beit, 135 Conn. 195, 202, 63 A.2d 161 (1948). The plaintiffs’ complaint, therefore, invokes the declaratory judgment provision of General Statutes § 52-29, as implemented by Practice Book §§ 389 and 390. See Mannweiler v. LaFlamme, 232 Conn. 27, 34, 653 A.2d 168 (1995).

General Statutes § 52-29 (a) permits the Superior-Court to “declare rights and other legal relations.” In order for a trial court to have jurisdiction over a declaratory judgment action, the notice requirements of Practice Book § 390 (d) must be satisfied. Mannweiler v. LaFlamme, supra, 232 Conn. 32.

Because neither the Appellate Court record nor the trial court file disclosed compliance with § 390 (d), we asked the parties for clarification. At oral argument, counsel for the plaintiffs conceded that the plaintiffs have not attempted to obtain, nor had the trial court issued, an order of notice. This lack of notice deprived the trial court of jurisdiction to render a judgment in this case.

This conclusion, however, does not necessarily require a dismissal of the plaintiffs’ action. “A jurisdictional defect relating to notice can be remedied in any of the ways noted in Connecticut Ins. Guaranty Assn. v. Raymark Corporation, [215 Conn. 224, 230, 575 A.2d 693 (1990)].” Serrani v. Board of Ethics, 225 Conn. 305, 309, 622 A.2d 1009 (1993). On remand, the plaintiffs may take appropriate action to cure the jurisdictional defect regarding the notice requirement. Mannweiller v. LaFlamme, supra, 232 Conn. 36.

The only pleading before the trial court was the complaint. There is no answer, special defense or counterclaim and the record is devoid of any of the standard pleadings as provided by Practice Book § 112. “The proposition that the pleadings frame the issues before a trial court is well established in our caselaw.” Doublewal Corp. v. Toffolon, 195 Conn. 384, 390, 488 A.2d 444 (1985). In order properly to adjudicate a case, “a trial court must have, ‘[b]esides jurisdiction of the person of the defendant and of the general subject-matter of the action . . . jurisdiction of the precise question which its judgment assumes to decide, or of the particular remedy or relief which it assumes to grant.’ ” Id., quoting 1 Black, Judgments (2d Ed. 1902) § 242; New Haven Sand Blast Co. v. Dreisbach, 104 Conn. 322, 329-30, 133 A. 99 (1926); Case v. Bush, 93 Conn. 550, 552-53, 106 A. 822 (1919).

The issues in this case have not been joined and the case was not ready for final judgment when the trial court decided it. See Cavalli v. McMahon, 174 Conn. 212, 215, 384 A.2d 374 (1978). “A failure to close the pleadings, where all the parties were present and represented, will not fatally affect the jurisdiction of a case.” Rummel v. Rummel, 33 Conn. App. 214, 219, 635 A.2d 295 (1993). Because we must remand the case in order to cure the lack of the notice required by § 390 (d), we also remand with direction to the trial court to open the judgment so that the pleadings may be closed, thus enabling the trial court to properly adjudicate the issues as framed by the pleadings. See id.

The judgment is reversed and the case is remanded for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       The plaintiffs in this appeal are John C. Kucej and Joanne L. Kucej.

       The defendants in this appeal are the town clerk of the town of Fairfield, the zoning board of appeals of the town of Fairfield, and George W. Ganim, an adjoining property owner.

       Upon review of the record, we are unable to determine the date on which the board posted notice on the plaintiffs’ property.

       In its memorandum of decision, the trial court noted that “the only evidence offered was that the plaintiffs are the owners of the property involved in this action.”

       The plaintiffs also filed a separate administrative appeal from the decision issued by the board on the plaintiffs’ variance application.

       General Statutes § 8-7 provides in pertinent part: “Notice of the time and place of such hearing shall be published in a newspaper having a substantial circulation in such municipality at least twice at intervals of not less than two days, the first not more than fifteen days, nor less than ten days, and the last not less than two days before such hearing. . . .”

       General Statutes 8 52-29 (a) provides: “The superior court in any action or proceeding may declare rights and other legal relations on request for such a declaration, whether or not further relief is or could be claimed. The declaration shall have the force of a final judgment.”

       Practice Book 8 389 provides: “The court will, in cases not herein expected, render declaratory judgments as to the existence or nonexistence (a) of any right, power, privilege or immunity; or (b) of any fact upon which the existence or nonexistence of such right, power, privilege or immunity does or may depend, whether such right, power, privilege or immunity now exists or will arise in the future.”

       Practice Book § 390 provides in pertinent part: “The court will not render declaratory judgments upon the complaint of any person . . . (d) unless all persons having an interest in the subject matter of the complaint are parties to the action or have reasonable notice thereof.”


source: Caselaw Access Project

author: GLASS, J.

license: Public Domain

text:
    RICHARD L. KAREN v. KAREN PARCIAK-KAREN
    (14066)
    Heiman, Hennessy and Glass, Js.
    Argued October 30, 1995
    decision released March 26, 1996

      Joseph A. O’Brien, for the appellant (plaintiff).

      Bruce S. Beck, for the appellee (defendant).
   GLASS, J.

In this dissolution action, the plaintiff, Richard L. Karen, appeals from the trial court’s assignment of certain funds to the defendant Karen Parciak-Karen. The plaintiff claims that the trial court abused its discretion and improperly held (1) that the plaintiff made an inter vivos gift to the marital estate when he converted certain bank accounts, formerly in the plaintiffs name alone, to joint bank accounts in the names of the plaintiff and the defendant, and (2) that the defendant was entitled to have assigned to her a portion of the plaintiffs inheritance. We affirm the judgment of the trial court.

The trial court found the following pertinent facts. The parties were married in Manchester on May 5,1984. At the time of the marriage, the plaintiff was employed by the Connecticut department of revenue services. In late 1985 or early 1986, the plaintiff terminated his employment with the state and became involved in the sale of real estate in the Manchester area. The defendant managed a family restaurant in Manchester from approximately 1977 until it was sold in 1993. The defendant is also a licensed real estate broker and appraiser.

The defendant testified at trial that the plaintiff stopped working in 1989 when his mother became ill, and that the defendant supported the plaintiff by working two jobs. In 1990, the plaintiff was appointed conservator for his mother, who later died on February 13, 1991. As a result of her death, the plaintiff became the sole owner of several bank accounts totaling $384,117, that had been held by the plaintiffs mother in survivor-ship with the plaintiff. Since the plaintiffs mother was the sole contributor to these accounts, it was conceded that these accounts were 100 percent taxable for Connecticut succession tax purposes.

Although the parties had no children of their marriage, two children were placed with the parties in July, 1991, in accordance with a joint plan to adopt them. Both of these children have long standing emotional problems.

Shortly after the children were placed with the parties for adoption, the plaintiff began a series of consultations with a representative of Mechanics Savings Bank relative to the investment of money that he inherited from his mother. The defendant was present at some of these meetings. As a result of these consultations, several investment accounts were established using the funds inherited by the plaintiff. Two of these accounts, the Keystone B-l account and the Van Kampen Bond Fund, with a total current value of $262,256, were converted by the plaintiff from his name alone to the joint names of the plaintiff and the defendant.

The trial court determined that the plaintiffs action of converting these two funds from the plaintiffs name alone to the joint names of the plaintiff and the defendant created “a rebuttable presumption that [the] plaintiff intended to make a gift of that property to the marital estate.” The trial court determined that the evidence was lacking to indicate that the plaintiff did not intend a gift when he converted the two accounts. The trial court therefore concluded that these two funds should be considered apart of the marital estate and assigned pursuant to General Statutes § 46b-81 (c). The trial court also considered the relevant statutory criteria contained in § 46b-81 (c), and noted that the responsibility for the breakdown of the marriage rested with the plaintiff. It further compared the yearly income of the parties, and concluded that the defendant’s contribution to this portion of the marital estate “far and away exceeds that of [the plaintiff].”

The total marital estate determined by the trial court to be available for assignment was $372,710. This total consisted of $110,454, representing the estate excluding the funds, and $262,256, representing the total amount of funds in the two investment accounts in the joint names of the plaintiff and the defendant. The court assigned to the plaintiff 20 percent of the marital estate excluding the funds, or $22,091. The court assigned to the defendant the remaining 80 percent of the estate excluding the funds, or $88,363. The court assigned to the plaintiff 67 percent of the total amount of the two joint investment accounts, or $175,712, and assigned to the defendant 33 percent, or $86,544, of these accounts. In sum, the trial court assigned to the plaintiff $197,803 of the $372,710 marital estate. The court assigned $174,907, the balance of the marital estate, to the defendant. The trial court declined to award either spouse alimony or counsel fees.

This appeal by the plaintiff challenges only the assignment to the defendant of $86,544 of the investment account funds in the joint names of the plaintiff and the defendant. The trial court, in its decree, made various other orders, none of which is at issue in this appeal.

I

The principal claim of the plaintiff is that the trial court improperly determined that, in converting two of his inheritance fund accounts from his name alone to his and the defendant’s joint names, he made an inter vivos gift to the marital estate. In support of this claim, the plaintiff argues that “there is no evidence that [he] relinquished control over the accounts in question,” and, further, “[t]here was no evidence that [the] defendant ever withdrew or deposited any money from or to these accounts and no evidence that [the] defendant could make withdrawals without the plaintiff’s consent.” The plaintiff concludes that “[s]ince [he] did not relinquish possession or control of these accounts, there is insufficient evidence on which the court could find that a valid inter vivos gift was made.”

The plaintiffs argument implies that if the defendant is not the owner of all or any part of the investment fund accounts, the trial court would be powerless to assign to the defendant all or any part of the funds. The plaintiffs argument and its implication misses the mark, and has been previously rejected by statute; General Statutes § 46b-81 (a); as well as by the Connecticut Supreme Court in North v. North, 183 Conn. 35, 39, 438 A.2d 807 (1981). Under § 46b-81 (a), property assignment is not restricted to the spouse that owns the property. Once it is determined that the property is part of the “estate” of either the husband or wife, the only limitation on the trial court’s power of assignment is General Statutes § 46b-81 (c). Moreover, our Supreme Court has stated: “ ‘§ 46b-81 confers broad powers upon the [trial] court in the assignment of property. It provides, in part, that the court “may assign to either the husband or wife all or any part of the estate of the other.” Among the factors to be considered in any order entered under § 46b-81 are the “estate, liabilities and needs of each of the parties.” ... In this context, the “estate” of the parties, as referred to in the statute, comprehends the aggregate of the property and liabilities of each.’ This includes any property a party may have received by reason of inheritance.” North v. North, supra, 39.

Because it is uncontroverted that these two investment accounts were included in the plaintiffs inheritance, and since the trial court under § 46b-81 (a), “may assign to either the husband or wife all or any part of the estate of the other,” we conclude that it is unnecessary to decide whether the plaintiff made a gift to the defendant when he converted these two accounts from his name alone to his and the defendant’s joint names. The trial court correctly determined that these two investment accounts were part of the marital estate and subject to assignment pursuant to General Statutes § 46b-81.

II

The plaintiffs second and final claim is that the trial court abused its discretion by assigning a portion of the plaintiffs inheritance to the defendant. Before addressing this claim, it is helpful to state the standard of review in family relations cases.

“ ‘The standard of review in family matters is that this court will not disturb the trial court’s orders unless it has abused its legal discretion or its findings have no reasonable basis in fact.’ Graham v. Graham, 25 Conn. App. 41, 47, 592 A.2d 424, cert. denied, 220 Conn. 903, 593 A.2d 969 (1991). It is within the province of the trial court to find facts and draw proper inferences from the evidence presented. Solomon v. Aberman, 196 Conn. 359, 378, 493 A.2d 193 (1985).” Rummel v. Rummel, 33 Conn. App. 214, 220, 635 A.2d 295 (1993). “The trial court is accorded wide discretion in determining the proper allocation of the assets of the parties. . . . [G]reat weight is given to the judgment of the trial court because of its opportunity to observe the parties and the evidence. . . . [Wjhere the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, these facts are clearly erroneous.” (Citations omitted; internal quotation marks omitted.) Id., 220-21.

The plaintiff appears to rely on Jackson v. Jackson, 17 Conn. App. 431, 553 A.2d 631 (1989), to support his claim that the trial court improperly assigned a portion of his inheritance to the defendant. His argument implicitly asserts that the value of the property at the time of inheritance should be assigned to the spouse receiving the property by inheritance, and the other spouse, at most, should share in the preservation and appreciation of the property.

In Jackson, the husband inherited real property in 1977 valued at $25,000 for probate purposes. The appraised value of the property at the time of the dissolution was $102,400. The trial court awarded the wife $35,500, which represented one half of the appreciation on the property since the time that the husband had inherited the property, less a 6 percent real estate commission. Id., 432-33. The plaintiff concedes that the facts of Jackson are much different from those in this case. He argues, however, that, although Jackson implies that under § 46b-81 inherited property could be assigned from one spouse to the other, the Jackson court did not elaborate further.

In our view, the trial court in Jackson, like the trial court in this case, exercised that broad discretion conferred on it by § 46b-81. In the past, we have declined to pronounce a draconian rule concerning the assignment of inherited property. We likewise reject that invitation today. “The ultimate question on appellate review is whether the trial court could have concluded as it did. Dubicki v. Dubicki, 186 Conn. 709, 713, 443 A.2d 1268 (1982). Examination of the record, the appellate briefs and consideration of the parties’ oral arguments does not persuade us that the trial court abused its discretion.” Brown v. Brown, 36 Conn. App. 597, 601, 652 A.2d 527, cert. denied, 232 Conn. 917, 655 A.2d 260 (1995).

The judgment is affirmed.

In this opinion the other judges concurred.

       The parties separated in February, 1992. In February, 1993, after repeated requests by the defendant, the plaintiff gave his approval to the adoption of the children solely by the defendant.

       Another Keystone B-l account, in the amount of $46,288, remained in the plaintiffs name alone, and was excluded by the trial court from consideration as a divisible part of the marital estate. This account is not at issue in this appeal.

       The inherited funds in the two joint investment accounts, along with the equity in the marital home, together with related personal property acquired by the parties during their eight years together, comprise the principal assets of the marital estate.

       General Statutes § 46b-81 (c) provides: “In fixing the nature and value of the property, if any, to be assigned, the court, after hearing the witnesses, if any, of each party, except as provided in subsection (a) of section 46b-51, shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income. The court shall also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates.”

       The trial court’s use of the term “defendant” in the context of this sentence was an obvious typographical error.
      The employment income of each spouse from 1985 through 1991 was determined by the trial court to be as follows:
      Year Plaintiffs Income
      1985 $29,250
      1986 7,306
      1987 None
      1988 3,376
      1989 6,769
      1990 10,802
      1991 None from employment
      Defendant’s Income
      $28,080
      32,920
      34,950
      34,300
      33.800
      33.800
      36,976

       It is significant to note here that the court determined that the parties have an equal opportunity for the future acquisition of capital assets and income.

       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 carry the decree into effect.”

       See footnote 4.

       The plaintiff also cites Ashton v. Ashton, 31 Conn. App. 736, 627 A.2d 943 (1993), cert. denied, 228 Conn. 901, 634 A.2d 295 (1994), Bonelli v. Bonelli, 22 Conn. App. 248, 576 A.2d 587, cert. denied, 216 Conn. 819, 581 A.2d 1054 (1990), and Papageorge v. Papageorge, 12 Conn. App. 596, 533 A.2d 229 (1987), in support of his claim that the trial court improperly-assigned a portion of his inheritance to the defendant. The trial court in those cases, however, was similarly exercising its discretion after weighing the factors enumerated by statute regarding the assignment of property.


author: HEIMAN, J. LAVERY, J.,

text:
    ALEXANDER CISLO v. CITY OF SHELTON
    (13249)
    Lavery, Heiman and Schaller Js.
    Argued September 28, 1995
    decision released March 26, 1996

      David Monastersky, with whom, on the brief, were Mary Beattie Schairer, Hugh F. Keefe, Dorm A. Swift, and Susan McAlpine, for the appellant (plaintiff).

      Thomas J. Welch, with whom was John H. Welch, Jr., for the appellee (defendant).
   HEIMAN, J.

The plaintiff appeals from the judgment of the trial court, rendered in favor of the defendant, after the granting of the defendant’s motion for summary judgment. On his appeal as amended, the plaintiff claims that the trial court improperly (1) granted the defendant’s motion for summary judgment and (2) denied the plaintiffs motion to open the judgment and to set aside the summary judgment. We affirm the judgment of the trial court.

The following facts are relevant to this appeal. On October 12, 1989, the plaintiff, a Shelton police officer, was arrested and charged with the sexual assault of a police informant. Subsequent to the arrest of the plaintiff, the informant disappeared. On January 24, 1991, the assistant state’s attorney entered a nolle prosequi in open court in the criminal action against the plaintiff. The assistant state’s attorney entered the nolle because of the disappearance of the informant. The plaintiffs counsel in the criminal action objected to the entry of the nolle and moved to dismiss the case. The trial court declined to dismiss the case and accepted the entry of the nolle pursuant to Practice Book § 726.

On March 4, 1992, the plaintiff brought an action against the defendant pursuant to General Statutes § 53-39a, seeking indemnification for the economic losses he incurred in the defense of the criminal charges brought against him. Subsequent to the filing of the complaint, the plaintiff and the defendant filed cross motions for summary judgment. On January 11, 1994, the trial court, Rush, J., denied the plaintiffs motion for summary judgment and granted the defendant’s cross motion. In its memorandum of decision regarding the cross motions for summary judgment, the trial court determined that the plaintiff was not entitled to relief under § 53-39a. The trial court found as a matter of law that the plaintiff was not entitled to relief because § 53-39a provides for indemnification only where the criminal charges against a police officer are dismissed or where the officer is found not guilty, and that here, the underlying criminal action against the plaintiff was terminated by the entry of a nolle prosequi. On January 27,1994, judgment was rendered in favor of the defendant and this appeal followed. In his initial appeal, the plaintiff claims that the trial court improperly granted the defendant’s motion for summary judgment.

On April 16,1994, during the pendency of his appeal, the plaintiff filed a motion in the trial court seeking to dismiss the criminal charges against him that had previously been nolled. On April 27,1994, the trial court in the criminal action, Skolnick, J., granted the motion to dismiss. On May 3, 1994, the plaintiff filed a motion in the trial court to open the judgment and to set aside the summary judgment in the present action, claiming that the recent dismissal of the nolled criminal charges made him eligible for indemnification under § 53-39a. On August 19, 1994, the trial court in the civil action, Rush, J., denied the plaintiff’s motion to open and found that because the criminal charges against the plaintiff had been nolled, they were no longer pending and could not have been properly dismissed for the purpose of seeking indemnification under § 53-39a. On September 7, 1994, the plaintiff filed an amendment to his appeal, adding the claim that the trial court improperly denied the plaintiffs motion to open the judgment and to set aside the summary judgment.

I

The plaintiff first claims that the trial court improperly granted the defendant’s motion for summary judgment. The plaintiff posits that the trial court, in granting the defendant’s motion for summary judgment, improperly determined that § 53-39a does not provide for indemnification where criminal charges against a police officer have been nolled. We are unpersuaded.

We first set forth our standard of review. “The standard of review of a trial court’s decision to grant a motion for summary judgment is well established. Pursuant to Practice Book § 384, summary judgment ‘shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.’ ” Connecticut Bank & Trust Co. v. Carriage Lane Associates, 219 Conn. 772, 780-81, 595 A.2d 334 (1991). Here, the facts are not in dispute. The plaintiffs claim is that the trial court improperly construed § 53-39a in granting the defendant’s motion for summary judgment. “The dispute between the parties here does not arise out of contested versions of the facts, but out of the legal significance of the facts as they relate to relevant statutoiy definitions.” Pinheiro v. Board of Education, 30 Conn. App. 263, 268, 620 A.2d 159 (1993). Thus, the question before us is whether the defendant was “ ‘entitled to judgment as a matter of law.’ ” Zichichi v. Middlesex Memorial Hospital, 204 Conn. 399, 402, 528 A.2d 805 (1987).

In deciding whether the defendant was entitled to judgment as a matter of law, we must determine whether the trial court was correct when it found that § 53-39a does not provide for indemnification where criminal charges against a police officer have been nolled. In making this determination, we must engage in statutory construction.

We begin with the text of § 53-39a. “That statute affords a police officer a right of indemnity for economic loss incurred for a prosecution ‘for a crime allegedly committed by such officer in the course of his duty as such’ if ‘the charge is dismissed or the officer found not guilty.’ ” Rawling v. New Haven, 206 Conn. 100, 104, 537 A.2d 439 (1988). Thus, “any person who invokes § 53-39a must sustain a twofold burden of proof. In order to receive indemnity, a police officer must prove not only that the charges against him were dismissed, or that he was acquitted, but also that the charges arose in the course of his duty as a policeman.” (Internal quotation marks omitted.) Id., 106. Whether the plaintiff was acting in the course of his duty is not in issue here. The plaintiff claims that the entry of a nolle prosequi is included “under the umbrella” of the term “dismissal” for the purposes of § 53-39a, thereby making him eligible for indemnification. The plaintiff posits that because § 53-39a should be construed in that way, the trial court’s rendering of summary judgment in favor of the .defendant was improper.

“In construing any statute, we seek to ascertain and give effect to the apparent intent of the legislature. United Illuminating Co. v. Groppo, 220 Conn. 749, 755, 601 A.2d 1005 (1992). It is a well established rule of statutory construction that when the language of a statute is plain and unambiguous, we need look no further than the words themselves because we assume that the language expresses the legislature’s intent. American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 193, 530 A.2d 171 (1987). . . . Courts should not read into clearly expressed legislation provisions which do not find expression in its words. Local 218 Steamfitters Welfare Fund v. Cobra Pipe Supply & Coil Co., 207 Conn. 639, 645, 541 A.2d 869 (1988).” (Internal quotation marks omitted.) Berry v. Loiseau, 223 Conn. 786, 830-31, 614 A.2d 414 (1992).

In construing § 53~39a in particular, our Supreme Court has followed the well settled rule that “[statutes that abrogate or modify governmental immunity are to be strictly construed. Struckman v. Burns, 205 Conn. 542, 558, 534 A.2d 888 (1987); Ahern v. New Haven, 190 Conn. 77, 82, 459 A.2d 118 (1983). This rule of construction stems from ‘the basic principle that when a statute is in derogation of common law or creates a liability where formerly none existed, it should receive a strict construction and is not to be extended, modified, repealed or enlarged in its scope by the mechanics of construction.’ Edmundson v. Rivera, 169 Conn. 630, 633, 363 A.2d 1031 (1975); see also Dennis v. Shaw, 137 Conn. 450, 452, 78 A.2d 691 (1951).” Rawling v. New Haven, supra, 206 Conn. 105.

In light of the above principles, we decline to extend the language of § 53-39a to provide for indemnification where a nolle prosequi has been entered by the prosecuting authority. The language of § 53-39a is plain and unambiguous. The statute clearly provides that in order to qualify for indemnification, the plaintiff must prove either that the charges against him were dismissed or that he was found not guilty. Id., 106. The entry of a nolle prosequi is neither a dismissal nor a verdict of not guilty. “The state’s right to terminate a prosecution by the entry of a nolle prosequi has its origins in practices recognized at common law. The effect of a nolle prosequi is to end pending proceedings without an acquittal and without placing the defendant in jeopardy. Bucolo v. Adkins, 424 U.S. 641, 642, 96 S. Ct. 1086, 47 L. Ed. 2d 301 (1976); see United States v. Jorn, 400 U.S. 470, 479, 91 S. Ct. 547, 27 L. Ed. 2d 543 (1971); 4 Wharton, Criminal Procedure (12th Ed. 1976) § 518.” State v. Lloyd, 185 Conn. 199, 201, 440 A.2d 867 (1981); see also Practice Book § 727. After the entry of a nolle, “the defendant shall be released from custody. If subsequently the prosecuting authority decides to proceed against the defendant, a new prosecution must be initiated.” Practice Book § 727. Furthermore, thirteen months after the entry of the nolle, all records of the arrest and prosecution of the defendant are erased. General Statutes § 54-142a (c).

Following our Supreme Court’s opinion in Link v. Shelton, 186 Conn. 623, 627, 443 A.2d 902 (1982), we are further guided by General Statutes § 1-1 (a) in construing § 53-39a according to its plain language. Under § 1-1 (a), specialized legal terms are to be construed according to their proper meaning as understood in the law. The terms “dismissed” and “not guilty” are “term[s] of art, or technical phrase[s], [each with] a ‘peculiar and appropriate meaning in the law’. . . .” Link v. Shelton, supra, 627, quoting General Statutes § 1-1 (a). We therefore must construe each term in accordance with such meaning. General Statutes § 1-1 (a); see also Link v. Shelton, supra, 627. Neither the meaning of the term “dismissed” nor the meaning of the term “not guilty” includes the entry of a nolle prosequi.

Were we to extend § 53-39a to include the entry of a nolle prosequi as an alternative prerequisite to seeking indemnification, we would be presuming that the legislature either mistakenly omitted the entry of a nolle from the parameters of the statute or was unaware of the difference between a nolle and a dismissal at the time of the drafting of § 53-39a. The legislature, however, is presumed to know the existing state of the law when it enacts a statute, and we will not presume otherwise. State v. Dabkowski, 199 Conn. 193, 201, 506 A.2d 118 (1986). We will not broaden the scope of § 53-39a by exercising an option available to the legislature, but that the legislature has declined to exercise. “As we have stated in numerous other cases, ‘it is not the province of a court to supply what the legislature chose to omit. The legislature is supreme in the area of legislation, and courts must apply statutory enactments according to their plain terms.’ Federal Aviation Administration v. Administrator, [196 Conn. 546, 550, 494 A.2d 564 (1985)]; In re Petition of State’s Attorney, Cook County, Illinois, 179 Conn. 102, 107, 425 A.2d 588 (1979); Weingarten v. Allstate Ins. Co., 169 Conn. 502, 507-508, 363 A.2d 1055 (1975).” Glastonbury Co. v. Gillies, 209 Conn. 175, 181, 550 A.2d 8 (1988).

We understand that in recognizing the independent meaning of the term “nolle prosequi” in contrast to the meanings of the terms “dismissal” and “not guilty,” the scope of the indemnification remedy under § 53-39a remains limited. See Rawling v. New Haven, supra, 206 Conn. 112. We must conclude, however, that the legislature intended such a limitation. See id. It is worth repeating that “[n]ot only do we strive to attach independent meaning to every phrase contained in a legislative enactment; DeFonce Construction Corporation v. State, [198 Conn. 185, 187, 501 A.2d 745 (1985)]; State v. Milum, 197 Conn. 602, 619, 500 A.2d 555 (1985); we also are bound to construe narrowly any statute that modifies or abrogates governmental immunity. Ahern v. New Haven, [190 Conn. 77, 82, 459 A.2d 118 (1983)].” Rawling v. New Haven, supra, 112-13. Guided by these principles, we decline to construe § 53-39a to provide for indemnity where the state’s attorney has entered a nolle prosequi in the prosecution of a police officer for a crime allegedly committed by such officer in the course of his duty. Therefore, because the plaintiffs criminal case was terminated by the entry of a nolle prosequi, the trial court properly granted the defendant’s motion for summary judgment.

II

The plaintiff next claims that the trial court improperly denied his motion to open the judgment and to set aside the summary judgment rendered in favor of the defendant. The plaintiff argues that even though the criminal charges against him were nolled, the subsequent dismissal of those charges served to qualify him for indemnification under § 53-39a, and therefore, the judgment rendered against him should have been opened. We do not agree.

Our standard of review of a trial court’s motion to open is well settled. “A motion to open and vacate a judgment ... is addressed to the [trial] court’s discretion, and the action of the trial court will not be disturbed on appeal unless it acted unreasonably and in clear abuse of its discretion. See Manchester State Bank v. Reale, 172 Conn. 520, 523-24, 375 A.2d 1009 (1979); State v. Fahey, 147 Conn. 13, 15, 156 A.2d 463 (1959). In determining whether the trial court abused its discretion, this court must make every reasonable presumption in favor of its action. State v. Bitting, 162 Conn. 1, 11, 291 A.2d 240 (1971); E. M. Loew’s Enterprises, Inc. v. Surabian, 146 Conn. 608, 612, 153 A.2d 463 (1959). Celanese Fiber, Division of Celanese of Canada, Ltd. v. Pic Yarns, Inc., [184 Conn. 461, 466-67, 440 A.2d 159 (1981)]. Acheson v. White, 195 Conn. 211, 214-15, 487 A.2d 197 (1985). Yanow v. Teal Industries, Inc., 196 Conn. 579, 583, 494 A.2d 573 (1985). The manner in which [this] discretion is exercised will not be disturbed so long as the court could reasonably conclude as it did. DiPalma v. Wiesen, 163 Conn. 293, 298, 303 A.2d 709 (1972); E. M. Loew’s Enterprises, Inc. v. Sura-bian, [supra, 611]. Ridolfi v. Ridolfi, 178 Conn. 377, 379, 423 A.2d 85 (1979). . . . Gillis v. Gillis, 214 Conn. 336, 340-41, 572 A.2d 323 (1990).” (Internal quotation marks omitted.) Walton v. New Hartford, 223 Conn. 155, 169-70, 612 A.2d 1153 (1992). Applying this standard of review, we conclude that the trial court did not abuse its discretion in denying the plaintiffs motion to open the judgment.

In denying the plaintiffs motion to open, the trial court determined that because the prosecution of the plaintiff had been terminated by the entry of a nolle prosequi, the charges against him could not be dismissed for the purpose of qualifying him for indemnification under § 53-39a. We agree with the reasoning of the trial court. The entry of a nolle prosequi terminates the prosecution without an acquittal and without placing the defendant in jeopardy, and thereafter, the defendant is released from custody. State v. Lloyd, supra, 185 Conn. 201; Practice Book § 727. Thirteen months after the entiy of the nolle prosequi, all records of the arrest and prosecution are erased. General Statutes § 54-142a (c). If after the entry of the nolle prosequi the prosecuting authority decides to proceed against the defendant, a new prosecution must be initiated; Practice Book § 727; regardless of whether the erasure statute has become operative. State v. Herring, 209 Conn. 52, 57-58, 547 A.2d 6 (1988). Thus, “[u]pon entry of a nolle, the individual concerned is no longer a defendant in a criminal case. He stands accused of no crime and his release is unconditional.” State v. Gaston, 198 Conn. 435, 441, 503 A.2d 594 (1986).

In accordance with the above principles, the plaintiff “was not under arrest, not in custody, and not subject to any criminal prosecution” after the entry of the nolle prosequi. (Internal quotation marks omitted.) Id. Consequently, no criminal charges were pending against the plaintiff that could have been dismissed for the purpose of qualifying him for indemnification under § 53-39a. Therefore, the trial court did not abuse its discretion in denying the plaintiffs motion to open the judgment and to set aside the summary judgment.

The judgment is affirmed.

In this opinion SCHALLER, J., concurred.

LAVERY, J.,

dissenting. I respectfully dissent from the majority opinion, which affirms the judgment of the trial court granting the defendant’s motion for summary judgment. I believe that the majority’s construction of General Statutes § 53-39a undermines the statute’s purpose of indemnifying police officers who are wrongfully accused of a crime allegedly committed while in the performance of their duties. I disagree with the majority for the reasons hereinafter set forth, because I believe a manifest injustice will be done to the plaintiff by affirming the trial court.

The majority holds that a police officer who is charged with a crime allegedly committed during the performance of his duties can never qualify for indemnification under General Statutes § 53-39a if the case was nolled under the missing witness section of Practice Book § 726 and General Statutes § 54-56b and subsequently erased thirteen months later. The majority concludes that such an officer is not entitled to indemnification because the case against the officer was never dismissed. The majority also holds that a trial court cannot dismiss a criminal charge that has been nolled under the missing witness section of § 726 and erased after thirteen months pursuant to General Statutes § 54-142a (c).

I

Section 53-39a affords a police officer a right of indemnity for economic loss incurred for a prosecution of a crime allegedly committed by the officer in the course of his duty, if the charge is dismissed or the officer found not guilty. Rawling v. New Haven, 206 Conn. 100, 104, 537 A.2d 439 (1988). We are concerned here only with the meaning of the phrase if “the charge is dismissed.” General Statutes § 53-39a. I believe the majority was not correct in finding that the entry of a nolle prosequi is not included “under the umbrella” of the term “dismissal” for the purposes of § 53-39a.

In the underlying criminal case, a nolle prosequi was entered pursuant to Practice Book § 725. The plaintiff objected to the entering of a nolle prosequi at that time and demanded a dismissal. The trial court denied the plaintiffs objection and based its decision solely on the missing witness provision of Practice Book § 726. I conclude that the legislative intent and purpose is served only by constructing § 53-39a such that a nolle entered pursuant to the missing witness provision of § 726 is included in the definition of dismissal.

“In construing statutes, our goal is to discern and give effect to the apparent intent of the legislature. See State v. Kozlowski, 199 Conn. 667, 673, 509 A.2d 20 (1986); Hayes v. Smith, 194 Conn. 52, 57, 480 A.2d 425 (1984). In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter. . . . Frillici v. Westport, 231 Conn. 418, 431-32, 650 A.2d 557 (1994); Fleming v. Garnett, 231 Conn. 77, 91-92, 646 A.2d 1308 (1994); State v. Metz, 230 Conn. 400, 409, 654 A.2d 965 (1994); Ambroise v. William Raveis Real Estate, Inc., 226 Conn. 757, 764, 628 A.2d 1303 (1993).” (Internal quotation marks omitted.) Steeneck v. University of Bridgeport, 235 Conn. 572, 581, 668 A.2d 688 (1995).

The obvious purpose of § 53-39a is to indemnify a police officer who is wrongfully accused of a crime allegedly committed while in the performance of his duties. Section 53-39a was enacted by Public Acts 1973, No. 73-627, and, at that time, Practice Book § 819 set out the difference between a dismissal with prejudice and a dismissal without prejudice. When enacting § 53-39a, the legislature did not distinguish between a dismissal with prejudice and a dismissal without prejudice. The statute provided, as it does now, that an officer shall be indemnified if “the charge is dismissed.”

There was no practical difference between a dismissal without prejudice and a nolle. Practice Book § 727, in discussing nolles prosequi, provides: “The entry of a nolle prosequi terminates the prosecution and the defendant shall be released from custody. If subsequently the prosecuting authority decides to proceed against the defendant, a new prosecution must be initiated.” In State v. Talton, 209 Conn. 133, 141 n.11, 547 A.2d 543 (1988), and State v. Gaston, 198 Conn. 435, 440-41, 503 A.2d 594 (1986), our Supreme Court recognized that the only difference between a dismissal and a nolle is the time of erasure. Under General Statutes § 54-142a (b), the records of an arrest are immediately erased on a dismissal, whereas, when a nolle is entered, the records of the arrest are erased thirteen months after its entry. General Statutes § 54-142a (c).

In State v. Lenczyk, 11 Conn. App. 224, 225, 526 A.2d 554 (1987), we said: “Because more than thirteen months have passed since the nolles were entered, the erasure provisions of General Statutes § 54-142a apply to this case. This statute requires that all criminal records of a nolled charge be erased after thirteen months from the entry of the nolle. General Statutes § 54-142a (c). The statute also prohibits the court clerk or any other person controlling the records from disclosing any information regarding the erased charge. General Statutes § 54-142a (e). That statute further provides that: ‘Any person who shall have been the subject of such erasure shall be deemed to have never been arrested within the meaning of the general statutes with respect to the proceedings so erased and may so swear under oath.’ General Statutes § 54-142a therefore prevents the state from reactivating the nolled charges in this case and places the defendant in essentially the same position as he would be in had the court granted his motion to dismiss.”

In a footnote, we farther observed that “[t]he defendant did not seek in the trial court to have the charges dismissed with prejudice. Had the defendant sought and the court granted such relief, the state would be precluded from prosecuting the defendant for the same offense or offenses. Practice Book § 819. The granting of a motion to dismiss without prejudice, however, does not preclude the state from charging the defendant in a new information with the same offenses within the applicable statute of limitations. Id. Under the present posture of this case, the defendant is essentially in the same position as he would be in had the court dismissed the charges without prejudice. See Practice Book § 727.” State v. Lenczyk, supra, 11 Conn. App. 225-26 n.1.

Dismissal is not defined by the statute or explained by the legislative history. “As a term of art or a technical phrase it has ‘a peculiar and appropriate meaning in the law’ and ‘shall be construed and understood accordingly.’ General Statutes § 1-1 (a). See 2A Sutherland, Statutes and Statutory Construction (4th Ed. Sands 1973) § 47.29.” Link v. Shelton, 186 Conn. 623, 627, 443 A.2d 902 (1982). Because the statute does not define the word “dismissal,” we must look elsewhere for the meaning. We may look to the meaning given the word in other statutes and consider that where the legislature uses the same word, it intends the same meaning. Link v. Shelton, supra, 627; 2A J. Sutherland, supra, § 53.03.

General Statutes § 54-142g (g) provides: “ ‘Dismissal’ means (1) prosecution of the charge against the accused was declined pursuant to rules of court or statute; or (2) the judicial authority granted a motion to dismiss pursuant to rules of court or statute; or (3) the judicial authority found that prosecution is no longer possible due to the limitations imposed by section 54-193.” (Emphasis added.) There is no question that the state declined to prosecute under Practice Book § 726 and General Statutes § 54-56b.

As previously noted; see footnote 5; § 54-142g is applicable to General Statutes § 54-142c. Section 54-142c is one of the statutes covering erasure. See General Statutes §§ 54-142a through 54-142d. Section 54-142c (b) provides in pertinent part: “Notwithstanding any other provisions of this chapter, within one year from the date of disposition of any case, the clerk of the court or any person charged with retention and control of erased records by the chief court administrator or any criminal justice agency having information contained in such erased records may disclose to the victim of a crime or his legal representative the fact that the case was dismissed. . . .” (Emphasis added.)

The majority posits that a nolle based on a missing witness, entered pursuant to Practice Book § 726 and General Statutes § 54-56b, is not a dismissal, nor will it become a dismissal after the thirteen month erasure period under General Statutes § 54-142a (c). I believe that a review of the statutory definition of dismissal under the erasure statute, the history and meaning of a dismissal with prejudice and a dismissal without prejudice as it existed at the time § 53-39a was passed, and the subsequent addition of § 54-142c (b) indicates that the legislature intended that a nolle, subsequently erased after thirteen months, becomes a dismissal for the purposes of § 53-39a.

II

In the alternative, I disagree with the majority in upholding the trial court’s denial of the plaintiffs motion to set aside the summary judgment rendered in favor of the defendant in this case after the trial court, Skolnick, J., granted dismissal of the criminal charges. The majority posits that the nolle and the erasure thirteen months later left nothing to dismiss. I disagree.

At the time the nolle prosequi was entered, the plaintiff moved for dismissal. The trial court denied the motion, citing Practice Book § 726, but indicated that it was familiar with the case and that if the state agreed it would have dismissed the case. The court also stated, on the basis of the facts of which it was aware, that it was certain that no judge would ever reactivate the charges. The plaintiff did everything he could do to obtain a dismissal.

The trial court retains jurisdiction once a nolle prose-qui enters for such matters as having a defendant’s motion to dismiss on an allegation of denial of a speedy trial. State v. Gaston, supra, 198 Conn. 443; State v. Lloyd, supra, 185 Conn. 205-206. After a nolle is entered and the records are erased pursuant to § 54-142a, reprosecution becomes difficult but not impossible. State v. Lloyd, supra, 210-11. Until the statute of limitations expires, only a motion to dismiss will take a defendant out of legal limbo. Id., 207.

In his motion to dismiss, the plaintiff sought dismissal based, inter alia, on the sixth and fourteenth amendments of the United States constitution and article first, § 8, of the Connecticut constitution, both of which encompass the right to a speedy trial. I conclude that the trial court, Skolnick, J., acted within its power when it dismissed the charges. The trial court, Rush, J., was incorrect when it ruled that there were no pending charges that could be dismissed and, thus, abused its discretion when it denied the motion to open.

I would reverse the judgment and remand the case for further proceedings.

       Practice Book §§ 725 and 727 and General Statutes § 54-142a (c) address the entry and effect of a nolle prosequi. Concerning the entry of a nolle, Practice Book § 725 provides: “A prosecuting authority shall have the power to enter a nolle prosequi in a case. It shall be entered upon the record after a brief statement by the prosecuting authority in open court of the reasons therefor.” Concerning the effect of a nolle, Practice Book § 727 provides: “The entry of a nolle prosequi terminates the prosecution and the defendant shall be released from custody. If subsequently the prosecuting authority decides to proceed against the defendant, a new prosecution must be initiated.” Furthermore, General Statutes § 54-142a (c) provides in relevant part: “Whenever any charge in a criminal case has been nolled in the superior court, or in the court of common pleas, if at least thirteen months have elapsed since such nolle, all police and court records and records of the state’s or prosecuting attorney or the prosecuting grand juror pertaining to such charge shall be erased. . . .”

       Practice Book § 726 provides: “Where a prosecution is initiated by complaint or information, the defendant may object to the entering of a nolle prosequi at the time it is offered by the prosecuting authority and may demand either a trial or a dismissal, except when a nolle prosequi is entered upon a representation to the judicial authority by the prosecuting authority that a material witness has died, disappeared or become disabled or that material evidence has disappeared or has been destroyed and that a further investigation is therefore necessary.” See also General Statutes § 54-56b, which provides: “A nolle prosequi may not be entered as to any count in a complaint or information if the accused objects to the nolle prosequi and demands either a trial or dismissal, except with respect to the prosecutions in which a nolle prosequi is entered upon a representation to the court by the prosecuting official that a material witness has died, disappeared or become disabled or that material evidence has disappeared or has been destroyed and that a further investigation is therefore necessary.”

       General Statutes § 53-39a provides in relevant part,: “Whenever, in any prosecution of an officer of ... a local police department for a crime allegedly committed by such officer in the course of his duty as such, the charge is dismissed or the officer found not guilty, such officer shall be indemnified by his employing governmental unit for economic loss sustained by him as a result, of such prosecution, including the payment of any legal fees necessarily incurred.”

       See footnote 3.

       General Statutes § 1-1 (a) provides: “In the construction of the statutes, words and phrases shall be construed according to the commonly approved usage of the language; and technical words and phrases, and such as have acquired a peculiar and appropriate meaning in the law, shall be construed and understood accordingly."

       Contrary to the suggestion of the dissent, we decline to apply the definition of “dismissal” set forth in General Statutes § 54-142g (g) to General Statutes §§ 53-39a and 54-142a_ Section 54-142g, by its own terms, applies only to General Statutes §§ 29-11, 54-142c and 54-142g through 54-142p.

       We note that in State v. Lloyd, supra, 185 Conn. 205-206, our Supreme Court held that after the entry of a nolle prosequi, the trial court retains limited jurisdiction over the case to hear a motion to dismiss based on the alleged denial of the right to a speedy trial. Moreover, Lloyd assumed, a fortiori, that such a motion to dismiss based on speedy trial grounds must be properly raised before the entry of a nolle. State v. Gaston, supra, 198 Conn. 443. The record before us does not indicate that the plaintiff, before the entry of the nolle, moved to dismiss the criminal charges against him based on the denial of his right to a speedy trial. Furthermore, the plaintiff does not claim on appeal that he was denied the right to a speedy trial in the criminal case against him. We decline to extend the scope of Lloyd by holding that the trial court in the plaintiffs criminal case retained jurisdiction to dismiss the charges against the plaintiff for the purpose of qualifying him for indemnification under § 53-39a.

       Practice Book § 725 provides: “A prosecuting authority shall have the power to enter a nolle prosequi in a case. It shall be entered upon the record after a brief statement by the prosecuting authority in open court for the reasons therefor."

       In rendering its decision on the plaintiff’s objection, the trial court stated:
      “The Court: Under § 726 of the Practice Book, it deals with this situation, and provides that a defendant may object to the entering of a nolle at the time a nolle is offered by the prosecutor and can demand either a trial or dismissal. It says except under certain circumstances. One of them is a representation to the judicial authority by the prosecuting attorney that a material witness has disappeared. There are other grounds as well. As I read the Practice Book rule, even if I were inclined to dismiss the case, I don’t know I could do so in view of the fact that the state is not consenting to a dismissal. If the state were to consent to a dismissal, I would grant it. I understand what Mr. Keefe has said here. And I, for one, have sympathy with what he said. I’m familiar with this case somewhat. As you indicated, Mr. Keefe, the civil case has come before me and I entered an order there that that case is dismissed unless the complaining plaintiff in that case, the complaining witness in this case . . . completes, I think it was failure to plead a deposition?
      “Mr. Keefe: Yes.
      “The Court: I don’t think under the Practice Book rule I can dismiss the case. And, otherwise, I would probably be inclined to do so based on what you've said. But I think the Practice Book rule has to be followed. So I cannot at this point dismiss the case. Obviously, if the state nolles the case, the matter is going to have to come back if this woman shows up and attempts to prosecute the matter further. It’s going to have to come in on another application for a warrant. And while I’ve taken a cursory look at the arrest warrant here, it’s a fairly lengthy one, I can see why, without having the benefit of the other information you’ve recited here this morning and stated in your motion, why the judge that signed that warrant did so at the time. I’m sure that neither he, and certainly not I, would sign another warrant if the state brings the matter back. So a nolle may stand. For the reasons stated, I cannot grant the motion to dismiss.” (Emphasis added.)

       Practice Book § 819, which was repealed on October 1, 1987, provided: “If the judicial authority grants a motion to dismiss, he shall specify whether 1he dismissal is with or without prejudice. If the dismissal is with prejudice, the defendant shall be released, and the prosecuting authority may, where he is entitled by law, appeal the dismissal in the same manner and to the same effect as appeals from final judgments in criminal prosecutions. If the dismissal is without prejudice, the defendant shall be released, but the dismissal shall not be a bar to further prosecution for the same offense or offenses.”

       See footnote 3.

       General Statutes § 54-142g is entitled “Definitions” and is applicable to General Statutes §§ 54-142g et seq., 29-11 and 54-142c.

       At the dismissal hearing, the plaintiff, through his attorney, represented to the court that the informant had a documented history of lying. He also represented that the informant did not go to the emergency room until almost twenty days after she said that she was raped by the officer, and that she went only because her lawyer advised her to do so. The plaintiff stated that the informant’s former husband told the Wallingford police department that she had told him she was never raped by the officer, but was claiming that the plaintiff raped her so that she could get some money out of the officer, and that she abused her two children and was thrown out of a public shelter because of drugs. At her deposition, she indicated that another person had assaulted her after the officer’s alleged assault and that she got drunk every few days.


author: PER CURIAM.

text:
    STATE OF CONNECTICUT v. GEORGE J. OLSZEWSKI
    (14285)
    Foti, Landau and Heiman, Js.
    Argued February 20
    decision released March 26, 1996

      Joseph S. Elder, with whom, on the brief, was Kirstin B. Coffin, for the appellant (defendant).

      Denise B. Smoker, deputy assistant state’s attorney with whom were James E. Thomas, state’s attorney, and, on the brief, Cynthia Baer, supervisory assistant state’s attorney, for the appellee (state).
   PER CURIAM.

The defendant appeals from the judgment of conviction rendered by the court, following the acceptance of his plea of nolo contendere to the charge of operating a motor vehicle while his license was under suspension in violation of General Statutes § 14-215 (c). The defendant challenges the trial court’s denial of his motion to dismiss. He claims that the trial court improperly found that the arrest occurred within the proper jurisdiction of the arresting officer. We are unable to determine what the court found as the record lacks any facts or findings. The defendant has failed to present a written memorandum of decision or a transcribed copy of an oral decision signed by the court explaining the factual basis for its decision in denying the motion as required by Practice Book § 4059. It is the appellant’s responsibility to provide an adequate record for review. Practice Book § 4061; Gelormino v. Blaustein, 31 Conn. App. 750, 751, 626 A.2d 1325 (1993); State v. Rios, 30 Conn. App. 712, 715, 622 A.2d 618 (1993).

The judgment is affirmed.

       The defendant entered a conditional plea of nolo contendere pursuant to General Statutes § 54-94a and Practice Book § 4003.

       The motion to dismiss alleged that “the stop and search of his person were illegal and in violation of [his] rights under the state and federal constitutions . . . .”


author: FOTI, J.

text:
    MAURICE REYNOLDS v. CHRYSLER FIRST COMMERCIAL CORPORATION
    (14278)
    O’Connell, Foti and Healey, Js.
    Argued December 1, 1995
    decision released March 26, 1996

      Markus L. Penzel, for the appellant (plaintiff).

      Jacqueline D. Bucar, for the appellee (defendant).
   FOTI, J.

The plaintiff, Maurice Reynolds, appeals from the judgment of the trial court granting the defendant’s motion for summary judgment. The plaintiff claims that the trial court improperly concluded that evidence submitted by the plaintiff, including testimony regarding the nature of the defendant’s discipline policy, did not raise a question of material fact as to either his status as an at-will employee or the existence of an implied contract. We affirm the trial court’s judgment.

The following facts are relevant for purposes of this appeal. The defendant employed the plaintiff in various capacities from November, 1969, to May 30,1990. From October 4, 1989, through May 14, 1990, the plaintiff served as a dealer representative. He was subsequently promoted to the position of regional manager-vice president. A dealer representative performs on-site merchandise inspections at dealerships according to procedures prescribed by the defendant.

Pursuant to the defendant’s agreements with dealers, dealers are obligated to pay the defendant when they sell merchandise. The defendant prescribes inventory inspection procedures to ensure that dealers meet their financial obligations with the defendant and to protect creditors from potential fraud by dealers. The procedures, designed to ensure accurate representations of the status of the inventory, require dealer representatives personally to inspect the serial number on each piece of merchandise and to match that number with the corresponding number on the inventory list. The defendant’s inventory list reflecting this procedure requires dealer representatives to sign to attest that they have complied with the procedures.

On October 5,1989, in his capacity as a dealer representative, the plaintiff conducted an inventory inspection of the Sherlock Music Company and signed the affidavit of inspection at the bottom of the inventory list. The defendant alleges that, in violation of the procedures, the plaintiff, while performing the inspection, did not personally inspect the serial numbers of the merchandise in Sherlock’s inventory. The defendant maintains that the plaintiff allowed the dealer to read the serial numbers from cards placed on the merchandise as he looked only at the serial numbers on the inventory list. The defendant discovered the alleged infraction in May, 1990, and on May 30,1990, terminated the plaintiffs employment for not complying with its inventory policies and procedures.

On October 1, 1991, the plaintiff filed suit against the defendant claiming that the defendant had improperly terminated his employment. In the complaint, the plaintiff alleged that the defendant violated an implied employment contract with the plaintiff by “failing and refusing to follow its progressive discipline policy and by failing to conform to its own standards of due process and fairness.” Following discovery, the defendant filed a motion for summary judgment and an accompanying memorandum of law. The defendant’s motion argued that the plaintiff was an employee at will and could be terminated at any time. The trial court, in a written memorandum of decision dated November 28, 1994, concluded that “[t]he evidence submitted by Reynolds does not raise a question of material fact regarding Reynolds’ status as an at-will employee” and granted the defendant’s motion for summary judgment. The plaintiff filed this appeal.

As a preliminary matter, we note that the plaintiff, in one of his initial memorandums to the trial court, acknowledged that the defendant’s personnel manual did not create an employment contract, that the manual included a specific disclaimer to that effect, and that he had not relied on the manual during his employment with the defendant. During oral argument before the trial court, the plaintiff reiterated that he was not relying on the defendant’s employee manual to support his claim. In his appellate brief, the defendant, in conformity with his earlier arguments, maintains that the defendant’s practices concerning discipline and termination, rather than the defendant’s employee manual, gave rise to an implied contract. We agree, therefore, with the trial court that the content of the defendant’s employee manual “is of no relevance in considering the motion for summary judgment. The only issue is whether there is an implied contract created by the words or conduct of the defendant which gives rise to certain rights on the part of the plaintiff before he could be disciplined or terminated.”

The dispositive issue here is whether the court properly determined that judgment for the defendant was required as a matter of law because the plaintiff failed to raise a material issue of fact regarding his status as an at-will employee or the existence of an implied contract of employment.

“The standard of review of a trial court’s decision to grant a motion for summary judgment is well established. Pursuant to Practice Book § 384, summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact ... a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue. . . . In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The test is whether a party would be entitled to a directed verdict on the same facts.” (Citations omitted; internal quotation marks omitted.) Connecticut Bank & Trust Co. v. Carriage Lane Associates, 219 Conn. 772, 780-81, 595 A.2d 334 (1991) ; see also Lees v. Middlesex Ins. Co., 219 Conn. 644, 650, 594 A.2d 952 (1991); Wadia Enterprises, Inc. v. Hirschfeld, 27 Conn App. 162, 165-66, 604 A.2d 1339, aff'd, 224 Conn. 240, 618 A.2d 506 (1992); Trotta v. Branford, 26 Conn. App. 407, 409-10, 601 A.2d 1036 (1992).

A material fact is a fact that will make a difference in the outcome of the case. Hammer v. Lumberman’s Mutual Casualty Co., 214 Conn. 573, 578, 573 A.2d 699 (1990). “Once the moving party has presented evidence in support of the motion for summary judgment, the opposing party must present evidence that demonstrates the existence of some disputed factual issue .... It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § 380. . . . The movant has the burden of showing the nonexistence of such issues but the evidence thus presented, if otherwise sufficient, is not rebutted by the bald statement that an issue of fact does exist. ... To oppose a motion for summary judgment successfully, the nonmovant must recite specific facts . . . which contradict those stated in the movant’s affidavits and documents.” (Citations omitted; internal quotation marks omitted.) Id., 578-79.

In order to prevail on his claim, the plaintiff must demonstrate an actual agreement by the defendant to have an employment contract with him. “A contract implied in fact, like an express contract, depends on actual agreement. D’Ulisse-Cupo v. Board of Directors of Notre Dame High School, 202 Conn. 206, 211 n.2, 520 A.2d 217 (1987); Therrien v. Safeguard Mfg. Co., 180 Conn. 91, 94, 429 A.2d 808 (1980); Brighenti v. New Britain Shirt Corporation, 167 Conn. 403, 406, 356 A.2d 181 (1974); Corriveau v. Jenkins Bros., 144 Conn. 383, 387, 132 A.2d 67 (1957).” (Internal quotation marks omitted.) Coelho v. Posi-Seal International, Inc., 208 Conn. 106, 111-12, 544 A.2d 170 (1988). Accordingly, to prevail on his wrongful termination claim, “which alleged the existence of an implied agreement between the parties, the plaintiff had the burden of proving by a fair preponderance of the evidence that [the defendant] had agreed, either by words or action or conduct, to undertake [some] form of actual contract commitment to him under which he could not be terminated without just cause [following progressive disciplinary measures]. D’Ulisse-Cupo v. Board of Directors of Notre Dame High School, supra, 212 n.2; Therrien v. Safeguard Mfg. Co., supra, 94-95.” (Internal quotation marks omitted.) Coelho v. Posi-Seal International, Inc., supra, 112. To survive a motion for summary judgment, the plaintiff had the burden of presenting evidence that the defendant had agreed to some form of contract commitment.

“A contractual promise cannot be created by plucking phrases out of context; there must be a meeting of the minds between the parties.” Christensen v. Bic Corp., 18 Conn. App. 451, 458, 558 A.2d 273 (1989). “The mere fact that the plaintiff believed the guidelines to constitute a contract does not bind [the defendant] without some evidence that it intended to be bound to such a contract. See Brighenti v. New Britain Shirt Corporation, [supra, 167 Conn. 407].” Id., 458.

The plaintiff argues that the defendant’s continuous, routine and ordinary use of its progressive disciplinary measures with its employees gave rise to an implied contract. The plaintiff maintains that the defendant routinely and customarily utilized the same progressive disciplinary measures with its employees, and, therefore, the plaintiff acquired an implied understanding and reliance that he would not be terminated until all of the defendant’s progressive disciplinary measures had been used with respect to him, if and when a problem ever arose with regard to his work performance. The plaintiff claims that the understanding of and reliance on disciplinary policy that he acquired from the defendant was exactly that which the defendant intended to impart to its employees. Hence, argues the plaintiff, there was a meeting of the minds between the plaintiff and the defendant that gave rise to an implied employment contract.

The plaintiff argues that the intent of the parties is a question of fact to be determined by the juiy. He further asserts that because the intent of the parties in this case is central and vital to the determination of whether an implied employment contract existed between the parties, summary judgment was particularly inappropriate, and the determination of facts should have been presented to a jury whose duty it is to resolve factual disputes.

We recognize that “summary judgment is ordinarily inappropriate where an individual’s intent and state of mind are implicated.” Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir.), cert. denied, 474 U.S. 829, 106 S. Ct. 91, 88 L. Ed. 2d 74 (1985). “The summary judgment rule would be rendered sterile, however, if the mere incantation of intent or state of mind would operate as a talisman to defeat an otherwise valid motion. Indeed, the salutary purposes of summary judgment—avoiding protracted, expensive and harassing trials—apply no less to [employment termination] cases than to commercial or other areas of litigation.” Id. Our Supreme Court has held “that even with respect to questions of motive, intent and good faith, the party opposing summary judgment must present a factual predicate for his argument in order to raise a genuine issue of fact.” Wadia Enterprises, Inc. v. Hirschfeld, supra, 224 Conn. 250.

In this case, the plaintiff has provided no evidence that would permit a trier of fact to draw a reasonable inference that an implied employment contract existed between the plaintiff and the defendant. In his deposition, the plaintiff testified that he “felt” and “thought” that he would “be out of a job” only if drastic changes occurred to Chrysler itself. The plaintiffs belief that he had an employment contract with the defendant, without more, is insufficient to sustain an implied contract claim. See Christensen v. Bic Corp., supra, 18 Conn. App. 458. Moreover, the plaintiff failed to supply evidence of a single oral representation made directly to him by the defendant that would give rise to an implied employment contract. The plaintiff conceded that the defendant had never told him, nor had he ever read anywhere, that he had an employment contract with the defendant. Given these admissions by the plaintiff, it is difficult, if not impossible, to find a meeting of the minds between the plaintiff and the defendant regarding the existence of an employment contract.

The plaintiff claims that it is the defendant’s progressive disciplinary measures that gave rise to the implied employment contract. To substantiate his claim, the plaintiff relies heavily on testimony by the defendant’s human resource personnel that they did not randomly disregard the defendant’s progressive disciplinary measures or its termination guidelines. The plaintiff, however, fails to recognize that it is his burden to establish that adherence to these policies and procedures was the result of a contractual commitment by the defendant. “[CJontracts are not created by evidence of customs and usage.” Christensen v. Bic Corp., supra, 18 Conn. App. 456; see L. F. Pace & Sons, Inc. v. Travelers Indemnity Co., 9 Conn. App. 30, 38, 514 A.2d 766, cert. denied, 201 Conn. 811, 516 A.2d 886 (1986). In addition, the defendant’s disciplinary policies are documented in its employee manual, a manual the plaintiff has explicitly rejected as a basis for his claim. The plaintiff cannot conveniently transform these written policies into oral representations by the defendant that the plaintiff is other than an at-will employee. As the trial court correctly held: “The vague references to the company’s policies in the deposition transcript of the [defendant’s] human resources employees are also insufficient to show that Reynolds’ employment was anything other than at will.”

The plaintiff presented no evidence, other than his feelings and beliefs, that the defendant had impliedly contracted to implement its progressive disciplinary measures with the plaintiff in every situation where the plaintiff allegedly performed his job inadequately. Since the plaintiff has failed to present the necessary factual predicate to raise a genuine issue as to the existence of an implied employment contract, we conclude that the trial court properly granted the defendant’s motion for summary judgment as to the plaintiffs claim of wrongful termination.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant claims that the plaintiffs failure to adhere to the defendant’s inventory procedures allowed Sherlock to misrepresent the status of its inventory and to avoid repayment, resulting in a significant loss to the defendant.


author: LAVERY, J.

text:
    RICHARD BOTTASS v. ROBERT BOTTASS ET AL.
    (13450)
    (14100)
    Lavery, Heiman and Stoughton, Js.

      Argued December 11, 1995
    decision released March 26, 1996

      Karen L. Murdoch, with whom were John A. Reed and, on the brief, Wesley W. Horton and Cristin L. Rothfuss and Michael S. Taylor, certified legal interns, for the appellant-appellee (plaintiff.

      Norman J. Voog, with whom, on the brief, was Christopher J. Molyneaux, for the appellees-appellants (defendant Judith Bekasi et al.).
   LAVERY, J.

The defendants Judith Bekasi and John Bekasi appeal from the trial court’s refusal to grant the defendants’ postjudgment motion to correct the judgment file. On appeal, the defendants claim that the trial court improperly refused to correct the judgment file that did not conform to the trial court’s previous oral memorandum of decision. The plaintiff, Richard Bottass, appeals from the judgment of the trial court granting the defendants’ motion for an order compelling the plaintiff to remove his vehicles from a common driveway and parking area so that it could be repaired. On appeal, the plaintiff claims (1) that the trial court did not have jurisdiction to grant the defendants’ motion, and (2) that the defendants’ motion was an improper collateral attack on the trial court’s underlying judgment. We conclude that the trial court improperly refused to grant the defendants’ motion to correct the judgment file and was without jurisdiction to grant the defendants’ motion for an order compelling the plaintiff to remove his vehicles.

This case arises out of extensive litigation concerning the parties’ rights to a common driveway and parking area located on the defendants’ property. The plaintiff and the defendants are owners of adjoining property in Torrington. The plaintiffs west property line borders the defendants’ east property line. In 1969, the plaintiff built a common driveway that runs along the property line and ends at a parking area. The entire driveway and parking area is located on the defendants’ property. Since 1972, both the plaintiff and the defendants have used this driveway to access their homes. The defendants’ driveway branches off the mutual driveway before the parking area, and the plaintiff has used the parking area to park his vehicles.

The second and sixth counts of the plaintiffs amended complaint allege that the plaintiff has prescriptive rights to this driveway and parking area, as well as to certain lawns and a stone drain. The defendants filed a counterclaim alleging trespass by the plaintiff. On July 2, 1991, the trial court issued an oral memorandum of decision finding for the plaintiff on the second and sixth counts in part, and against the defendants on their counterclaim. In its memorandum of decision, the trial court found that the plaintiff holds a prescriptive easement over the driveway and parking area, that the plaintiff has the right to park vehicles in the parking area, and that no obstruction should be made to the use of the parking area.

On September 28, 1992, the trial court heard arguments from both counsel regarding a judgment file, and each party submitted a proposed judgment file. Sometime thereafter, the trial court signed the judgment file prepared by plaintiff s counsel. The signed judgment file states that the plaintiffs use of the easement includes the exclusive right to park on the turnaround and parking area, and no obstruction to this use will be made. The judgment file also states that the “[defendants have no right of passage through or across the . . . parking area and turnaround or any other right of access to said area.”

On July 16,1993, the defendants filed a motion asking the trial court to order the plaintiff to remove all motor vehicles from the driveway and parking area so that the defendants could make repairs. On November 1, 1993, the trial court granted the defendants’ motion and the plaintiff appealed. The defendants filed a motion to correct the judgment file on November 23, 1993. On April 25, 1994, the trial court denied this motion and the defendants appealed.

I

The defendants first claim that the trial court improperly denied their motion to correct the judgment file. The defendants argue that the language in the judgment file grants the plaintiff rights to the property beyond those granted by the trial court’s oral memorandum of decision and should be corrected to conform to the actual judgment rendered. We agree with the defendants that the trial court improperly denied their motion and conclude that the oral memorandum of decision represents the trial court’s judgment.

In its oral memorandum of decision, the trial court found that the plaintiff has a prescriptive easement over the driveway and the right to park vehicles in the parking area. Nothing in the memorandum of decision prohibits the defendants from using the driveway or parking area. The judgment file, however, states that “[t]he plaintiffs use includes the exclusive right to park on the above described turnaround and parking area and no obstruction to the use of said area will be made.” The judgment file also states that the “ [defendants have no right of passage through or across the above parking area and turnaround or any other right of access to said area.”

The language used by the trial court in its memorandum of decision cannot be construed to grant the plaintiff exclusive access to the parking area. “An easement created by prescription is more limited than an easement by grant. Lichteig v. Churinetz, 9 Conn. App. 406, 410, 519 A.2d 99 (1986). [Wjhen an easement is established by prescription, the common and ordinary use which establishes the right also limits and qualifies it. . . . The use of an easement must be reasonable and as little burdensome to the servient estate as the nature of the easement and the purpose will permit. . . . Kuras v. Kope, 205 Conn. 332, 341, 533 A.2d 1202 (1987).” (Internal quotation marks omitted.) McCullough v. Waterfront Park Assn., Inc., 32 Conn. App. 746, 756, 630 A.2d 1372, cert. denied, 227 Conn. 933, 632 A.2d 707 (1993). “The possessor of land subject to an easement created by prescription is privileged, as against the owner of the easement, to make such uses of the servient tenement as are not incompatible with the use authorized by the easement.” 5 Restatement, Property § 481 (1944). We conclude that the trial court’s oral memorandum of decision does not grant the plaintiff exclusive access to the parking area, and that the judgment file, therefore, does not accurately reflect the trial court’s judgment.

“A trial court possesses the power to modify substantively its own judgment within four months succeeding the date on which it was rendered or passed. State v. Wilson, 199 Conn. 417, 437, 513 A.2d 620 (1986). A court may correct a clerical error at any time, even after the expiration of the four month period. Blake v. Blake, 211 Conn. 485, 495, 560 A.2d 396 (1989).

“ ‘In civil matters, the preparation of the judgment file is a clerical matter; the written judgment relates back to the filing of the memorandum. ’ State v. Nardini, 187 Conn. 109, 127, 445 A.2d 304 (1982). ‘A clerical error is a mistake or omission in a judgment which is not the result of the judicial function. Such a claimed error does not challenge the court’s ability to reach the conclusion that it did reach, but involves the failure to preserve or correctly represent in the record the actual decision of the court. 46 Am. Jur. 2d, Judgments § 202.’ Ravizza v. Waldie, 3 Conn. App. 491, 493, 490 A.2d 90 (1985).” Cioffoletti v. Planning & Zoning Commission, 34 Conn. App. 685, 689, 642 A.2d 1220, cert. denied, 230 Conn. 916, 645 A.2d 1018 (1994).

We hold that the trial court improperly refused to grant the defendants’ motion to correct the judgment file. The trial court lacked power to make substantive changes to its judgment when it signed the judgment file presented by the plaintiff’s counsel. When the trial court signed the judgment file, it was required to conform the judgment file to its oral memorandum of decision. We conclude that the trial court was obligated to correct clerical errors in the judgment file so that it was consistent with its oral memorandum of decision.

II

The plaintiff raises two claims with respect to the trial court’s order compelling the plaintiff to remove his vehicles so that the driveway and parking area could be repaired. The plaintiff argues that the trial court did not have jurisdiction to grant the defendants’ motion for this order, and the defendants’ motion was a collateral attack on the July 2, 1991 judgment. We agree with the plaintiff and conclude that the trial court was without jurisdiction to grant the defendants’ motion.

The plaintiffs claim is that the defendants’ motion was essentially amotion to open the judgment, and that the trial court was without jurisdiction to open the judgment after the four month period permitted by General Statutes § 52-212a. The trial court found that the plaintiff had acquired a prescriptive easement over the driveway and parking area, and, as outlined previously, the trial court’s judgment did not grant the plaintiff exclusive access to the property. The trial court also rendered judgment against the defendants on their counterclaim that sought to enjoin the plaintiff from using the driveway and parking area.

The trial court was without jurisdiction to grant the defendants’ motion. A trial court has jurisdiction to enter postjudgment remedial orders to protect the integrity of its prior judgment only when the court has continuing jurisdiction. Connecticut Pharmaceutical Assn., Inc. v. Milano, 191 Conn. 555, 563-64, 468 A.2d 1230 (1983); Hall v. Dichello Distributors, Inc., 14 Conn. App. 184, 192, 540 A.2d 704 (1988). Absent continuing jurisdiction, a trial court lacks jurisdiction to open its judgment and order additional remedies after the four month period has expired. General Statutes § 52-212a. We conclude, therefore, that the trial court improperly granted the defendants’ motion compelling the plaintiff to remove his vehicles.

The judgment of the trial court is reversed and the case is remanded for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       The plaintiffs six count amended complaint also named Robert Bottass and David Bottass as defendants. Only the claims against Judith Bekasi and John Bekasi are relevant to this appeal. We refer in this opinion to the Bekasis as the defendants.

       All other claims in the plaintiff’s complaint were subsequently withdrawn.

       The trial court’s oral memorandum of decision states: “On the second count, the plaintiff asks that a decree enter by this court that the turnaround located at the tip of the driveway is part and parcel of a mutual driveway between the parties. The court finds as a matter of fact, upon reason of the actions of the parties, that the right-of-way as set forth and shown on exhibit one defines the easement, including the parking area outside of the plaintiffs home. The court finds its use of that property will include the right to park vehicles thereon. The court further finds no right to approach the other side of the defendants’ property as he has a right to pass to the parking area. No obstruction should be made to the use of the parking area. The plaintiff also asks for contribution by the defendants for moneys used for creation of the driveway. There is not sufficient evidence. The court finds in favor of the defendants. An order requesting the defendant to remove shrubs and other obstacles from the driveway turnaround that is on the defendants’ property is denied.
      “On the sixth count of the complaint, there is a request that the court decree that the lawn to the east and north of the driveway, the curtain drain to the north of said driveway, and the parking area is owned by the plaintiff through adverse possession. The court finds it is not owned by the plaintiff. However, the plaintiff has the right to have the curtain drain remain on the property with no interference while under construction. On the counterclaim, the court finds the issues for the plaintiff, the plaintiff shall recover costs.”