author: FLYNN, J.

text:
    SUSAN C. FORTE ET AL. v. CITICORP MORTGAGE, INC.
    (AC 20666)
    Mihalakos, Flynn and Hennessy, Js.

      Argued June 7
    officially released October 23, 2001

      Laurence V. Pamoff, for the appellants (plaintiffs).

      Matthew D. Gordon, for the appellee (defendant).
   Opinion

FLYNN, J.

The plaintiffs, Susan C. Forte and Frank J. Forte, appeal from the judgment of the trial court rendered following the granting of the motion for summary judgment filed by the defendant, Citicorp Mortgage, Inc. (Citicorp). On appeal, the plaintiffs claim that the court improperly granted Citicorp’s motion because (1) a prior motion for summary judgment in a related action, which had been denied on the ground that a genuine issue of material fact existed, established the law of the case, (2) a subsequent motion for summary judgment in the present action, which had been granted on the ground that no genuine issue of material fact existed, did not establish the law of the case, and (3) the court’s decision was contrary to the facts, the law and the law of the case. We affirm in part and reverse in part the judgment of the trial court.

The record reveals the following undisputed facts. On or about February 1, 1990, the plaintiffs submitted to Citicorp an application for a mortgage loan in connection with their purchase of a home that was being constructed at 42 Farmstead Lane in Trumbull. Citicoip issued to the plaintiffs a mortgage loan commitment, which stated that the loan was conditioned on the satisfactory completion of the construction and a reappraisal confirming that the property as completed at least equaled the original appraised value. The commitment also provided that Citicorp would order the reinspection once the closing was scheduled. The plaintiffs signed the mortgage loan commitment and returned the signed copy to Citicorp.

On May 21, 1990, pursuant to General Statutes (Rev. to 1989) § 36-9h (b), now § 36a-755 (b), Citicorp sent to the plaintiffs a copy of the appraisal that it used in evaluating their loan application. According to that appraisal, the property was valued at $585,000. The cover letter that accompanied the plaintiffs’ copy of the appraisal stated that the appraisal was “used solely for the purpose of substantiating asset value in support of your application. Information, estimates, and opinions furnished to Citicorp and contained in the report, were obtained from sources considered reliable and believed to be true and correct. However, no responsibility for accuracy of such items furnished Citicorp can be assumed by Citicorp.” The plaintiffs acknowledged receipt of that document by signing the document on the lines provided. Thereafter, the plaintiffs executed a promissory note in favor of Citicorp in the amount of $523,400, the amount of the loan, and Susan C. Forte gave to Citicorp a mortgage on the property as security for the note.

In their complaint, the plaintiffs alleged that shortly after moving into their new home, they discovered numerous defects in the construction. They also alleged that representatives of Citicorp had informed them that they could “automatically” refinance within the first year of the mortgage loan without incurring additional appraisal or inspection costs. The plaintiffs alleged that when they made a request to refinance, after interest rates dropped, Citicorp informed them that they would not qualify for refinancing unless they reduced the principal amount of their debt.

In January, 1993, the plaintiffs filed an action against Citicorp. In count one of their revised complaint, the plaintiffs alleged that Citicorp had breached its duty of good faith and fair dealing by first telling them that they would be allowed to refinance on request, within the first year of the mortgage, and then by refusing to allow them to do so when interest rates began to decline. The plaintiffs also alleged that Citicorp had breached its duty of good faith and fair dealing by not disclosing a complete, accurate and fair appraisal of the property. In count two, the plaintiffs alleged that Citicorp had breached its contract with them by failing to provide them with an appraisal that disclosed patent defects in the construction of the home, which defects were known or, in the exercise of due care, should have been known to the appraiser and disclosed to the bank.

The plaintiffs ultimately defaulted on the note and in November, 1993, Citicorp initiated a foreclosure action against them. See Citicorp Mortgage, Inc. v. Forte, Superior Court, judicial district of Fairfield, Docket No. 309951. In response, the plaintiffs filed an answer and two counterclaims that are relevant to their appeal. The allegations of the counterclaims mirrored the allegations of the plaintiffs’ two count complaint. Citicorp filed a motion for summary judgment on the plaintiffs’ counterclaims in the foreclosure action. It claimed that there was no genuine issue of material fact in dispute and that it was entitled to judgment as a matter of law on the ground that it had no duty to provide the plaintiffs with an accurate appraisal of the property or to refinance their mortgage loan automatically on request. The court, Rush, J., denied Citicorp’s motion as to the plaintiffs’ counterclaims on the ground that the plaintiffs had raised genuine issues of material fact as to whether the parties had an agreement to refinance and whether the reappraisal was to be used to “confirm” the value of the property. The foreclosure action eventually was withdrawn.

Citicorp also filed a motion for summary judgment on the plaintiffs’ two count complaint in this action. The court, Levin, J., without oral argument, granted Citicorp’s motion on the ground that there was no genuine issue of material fact in dispute and that Citicorp therefore was entitled to judgment as a matter of law. Thereafter, the plaintiffs filed a motion for reargument, for reconsideration and to set aside the summary judgment on their complaint. That motion was granted by the court, Levin, J., on December 5, 1997. On May 17, 1999, Citicorp again filed a motion for summary judgment on the ground that there were no genuine issues of material fact in dispute and that it therefore was entitled to judgment as a matter of law. The plaintiffs objected to the motion and filed a memorandum of law in opposition. The court, Skolnick, J., granted Citicoip’s motion, and its judgment serves as the basis of this appeal.

I

The plaintiffs first claim that in light of the court’s decision to deny summary judgment in the foreclosure action on the ground that there were genuine issues of fact in dispute, it was improper for the court to grant Citicorp’s motion for summary judgment in the present case on the ground that there were no genuine issues of material fact in dispute. In other words, the plaintiffs argue that the denial of summary judgment in the foreclosure action should serve as the law of the case in the present action. We disagree.

We begin our analysis of the plaintiffs’ claim with a review of the law of the case doctrine. That doctrine provides that “[wjhere a matter has previously been ruled upon interlocutorily, the court in a subsequent proceeding in the case may treat that decision as the law of the case, if it is of the opinion that the issue was correctly decided, in the absence of some new or overriding circumstance.” (Emphasis added.) Breen v. Phelps, 186 Conn. 86, 99, 439 A.2d 1066 (1982). “A judge is not bound to follow the decisions of another judge made at an earlier stage of the proceedings, and if the same point is again raised he has the same right to reconsider the question as if he had himself made the original decision. . . . According to the generally accepted view, one judge may, in a proper case, vacate, modify, or depart from an interlocutory order or ruling of another judge in the same case, upon a question of law.” (Citations omitted; emphasis added; internal quotation marks omitted.) Id., 98-99.

We conclude that the plaintiffs’ reliance on the doctrine of the law of the case to support their contention that the court in the present case should have given conclusive effect to the denial of summary judgment in the foreclosure action is misplaced. Here, the court could not have treated the denial of summary judgment on the plaintiffs’ counterclaims in the foreclosure action as the law of the case to be applied to Citicorp’s motion for summary judgment on the plaintiffs’ complaint. The law of the case doctrine applies only to subsequent proceedings in the same case. Citicorp’s foreclosure action against the plaintiffs and the plaintiffs’ action against Citicorp were not the same case but, rather, two separate and distinct cases. Accordingly, we conclude that even if the court were inclined to do so, it could not treat the court’s decision in Citicorp’s foreclosure action as the law of the case in the plaintiffs’ present action against Citicorp.

II

The plaintiffs next claim that the court improperly applied the law of the case doctrine to Citicorp’s May 17, 1999 motion for summary judgment by according conclusive effect to the December, 1997 decision of the court, Levin, J., granting Citicorp’s motion for summary judgment, because that motion was granted without oral argument. We disagree.

Contrary to the plaintiffs’ claim, the court did not treat as dispositive the December, 1997 decision of the court, Levin, J., granting Citicorp’s motion for summary judgment. Although the court mentioned in its memorandum of decision that a previous motion for summary judgment in the case had been granted, it also noted that the judgment on that motion subsequently was set aside. It did not give that decision any weight; instead, it considered Citicorp’s May 17,1999 motion for summary judgment on its own merits.

Ill

In their final claim, the plaintiffs argue that there were genuine issues of material fact in dispute and, accordingly, that Citicorp was not entitled to summary judgment. We agree.

“Before addressing the merits of this dispute, we set forth the standard of review for summary judgment which is well established. 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. ... In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.” (Internal quotation marks omitted.) QSP, Inc. v. Aetna Casualty & Surety Co., 256 Conn. 343, 351, 773 A.2d 906 (2001). “The test is whether a party would be entitled to a directed verdict on the same facts.” (Internal quotation marks omitted.) Gillum v. Yale University, 62 Conn. App. 775, 780-81, 773 A.2d 986, cert. denied, 256 Conn. 929, 776 A.2d 1146 (2001).

“Because the trial court rendered judgment for . . . [Citicorp] as a matter of law, our review is plenary and we must decide whether [the trial court’s] conclusions are legally and logically correct and find support in the facts that appear in the record. ... On appeal, however, the burden is on the opposing party to demonstrate that the trial court’s decision to grant the movant’s summary judgment motion was clearly erroneous.” (Internal quotation marks omitted.) Carlin Pozzi Architects, P.C. v. Bethel, 62 Conn. App. 483, 487, 767 A.2d 1272 (2001).

As to count one of their revised complaint, the plaintiffs first claim that summary judgment was improper because Frank J. Forte’s affidavit raised a genuine issue of material fact as to whether Citicorp breached its duty of good faith and fair dealing in refusing to allow them to refinance their mortgage at their request as it previously had agreed to do. Citicorp contends, on the basis of Frank J. Forte’s deposition testimony, that there is no genuine issue of material fact as to the existence of a contract to refinance and, therefore, it owed the plaintiffs no duty to refinance their mortgage on request.

In support of their motion for summary judgment as to that claim, Citicorp filed the affidavit of Craig Page, an assistant foreclosure manager for Citicorp, in which he averred that his examination of the plaintiffs’ file revealed no evidence that anyone at Citicorp ever represented to the plaintiffs that they would be automatically approved for refinancing. Page also averred that it was not Citicoip’s practice to approve requests for refinancing automatically. Citicorp also filed portions of the transcript of Frank J. Forte’s deposition in which he stated that while representatives of Citicorp told him and his wife that they would have the opportunity to refinance their mortgage, there was no agreement reached between the parties, the terms of which would be that any request by the plaintiffs to refinance would automatically be approved by Citicorp, but that he merely assumed that he and his wife would be allowed to refinance upon request.

In opposition to Citicorp’s motion for summary judgment, the plaintiffs offered the affidavit of Frank J. Forte, in which he averred that during the application process, he was told that a request for refinancing made within one year would not require any additional appraisals or other qualifications and that a new or modified mortgage agreement would be provided on request.

The court determined that the plaintiffs had failed to allege, as a predicate to maintaining a claim for breach of the duty of good faith and fair dealing, that a refinancing agreement existed between the parties and, therefore, Citicorp was entitled to judgment as a matter of law. We do not agree.

“It is axiomatic that the implied duty of good faith and fair dealing is a covenant implied into a contract or a contractual relationship.” Hoskins v. Titan Value Equities Group, Inc., 252 Conn. 789, 793, 749 A.2d 1144 (2000). The existence of a contract between the parties is, therefore, a necessary predicate to a successful claim of breach of an implied covenant of good faith and fair dealing, and the failure to allege the existence of an agreement is fatal to such a claim. Id.

To determine whether the plaintiffs’ complaint sufficiently alleged that there was a refinancing agreement between the parties, we look to the well settled law regarding pleadings. “[T]he interpretation of pleadings is always a question [of law] for the court .... The modem trend, which is followed in Connecticut, is to construe pleadings broadly and realistically, rather than narrowly and technically. . . . Although essential allegations may not be supplied by conjecture or remote implication . . . the complaint must be read in its entirety in such a way as to give effect to the pleading with reference to the general theory upon which it proceeded, and do substantial justice between the parties. ... As long as the pleadings provide sufficient notice of the facts claimed and the issues to be tried and do not surprise or prejudice the opposing party, we will not conclude that the complaint is insufficient to allow recovery.” (Citations omitted; internal quotation marks omitted.) Emerick v. Kuhn, 52 Conn. App. 724, 738-39, 737 A.2d 456, cert. denied, 249 Conn. 929, 738 A.2d 653, cert. denied sub nom. Emerick v. United Technologies Corp., 528 U.S. 1005, 120 S. Ct. 500, 145 L. Ed. 2d 386 (1999).

In the present case, paragraph thirteen of count one of the plaintiffs’ revised complaint states: “The plaintiffs were told that because their request was made within one year, no additional [appraisal,] inspection or similar closing costs would be incurred, and that either a new Mortgage or Modification Agreement would be provided.” In construing the allegations of the pleading liberally, as we must, we conclude that the plaintiffs have alleged the existence of an agreement to refinance the property.

The court also determined that the plaintiffs failed to provide any evidence of a refinancing agreement. Again, we disagree.

“To defeat a motion for summary judgment, a nonmovant must recite specific facts that contradict those stated in the movant’s documents to show there exists a genuine issue of fact for trial.” Kroll v. Sebastian, 58 Conn. App. 262, 267, 753 A.2d 384 (2000). In the present case, the parties have offered conflicting evidence as to whether there was a refinancing agreement. Citicorp offered the affidavit of Page, which stated that there was no agreement to refinance. In addition, it offered the deposition testimony of Frank J. Forte, in which he seemed to state that there was no agreement reached. In direct contradiction to that evidence, however, the plaintiffs offered the affidavit of Frank J. Forte in which he stated that there was an agreement to refinance his mortgage loan if mortgage rates fell, as long as he requested refinancing within the first year. Accordingly, on the basis of the conflicting evidence that was presented, we conclude that the plaintiffs have offered evidence that raises a genuine issue of material fact as to whether there was a refinancing agreement between the parties, in which all of the terms of the refinanced mortgage would remain the same except for the then lower current interest rate and, therefore, that summary judgment as to that issue was improper.

We now turn to the plaintiffs’ claims concerning the appraisal. The plaintiffs claim that summary judgment was not warranted because there is a genuine issue of material fact as to whether Citicorp breached its contract, as alleged in count two of the revised complaint, and the implied covenant of good faith and fair dealing contained therein, as alleged in count one, by failing to provide them with an accurate appraisal. Citicorp argues that the court properly rendered summary judgment in its favor because Citicorp was under no duty, contractual or otherwise, to supply the plaintiffs with an accurate appraisal. Citicorp further argues that in light of the language contained in the cover letter that accompanied the appraisal, which specifically disclaimed liability for the accuracy of the appraisal, and the language in the Department of Housing and Urban Development brochure about settlement costs, with which the plaintiffs were provided and which explained that the sole purpose of such an appraisal is to assist the lender, the plaintiffs cannot reasonably claim that they were entitled to rely on that appraisal. We agree.

The plaintiffs first argue that Citicorp breached its contract by failing to provide them with an accurate appraisal. They claim that because the mortgage loan commitment required Citicorp to perform an appraisal of the property, Citicorp was required to ensure that any appraisal that it provided was accurate and that Citicorp’s failure to do so constituted a breach. We disagree.

The mortgage loan commitment merely states that the purpose of the appraisal was to confirm the asset value of the property, that Citicorp would order the reinspection and that the plaintiffs were entitled to a copy of the appraisal. It contains no language indicating that Citicorp was to provide the plaintiffs with an appraisal on which they were entitled to rely.

The facts presented in the present case are almost identical to those of Dubinsky v. Citicorp Mortgage, Inc., 48 Conn. App. 52, 708 A.2d 226, cert. denied, 244 Conn. 926, 714 A.2d 9 (1998), and we conclude that our holding in Dubinsky is dispositive of the plaintiffs’ breach of contract claim in the present case. In Dubinsky, this court held that absent contractual language to the contrary, a lender has no duty to perform an accurate appraisal of property for the benefit of a loan applicant. The applicant in Dubinsky claimed, as do the plaintiffs in the present action, that because the terms of the commitment required the lender to provide the applicant with an appraisal of the property, the lender was required to perform that appraisal in a skillful manner, and its failure to do so constituted a breach of contract. Id., 56. Moreover, in Dubinsky, the transmittal letter accompanying the appraisal contained language that is identical to the language contained in the cover letter that was received by the plaintiffs in this case. After examining that language, this court held that the language clearly indicated that the appraisal was intended solely for use by the lender in evaluating the plaintiffs application and, furthermore, that it expressly disclaimed any liability for the accuracy of the information it contained and, therefore, the plaintiffs had no reason to rely on the accuracy of the appraisal. Id., 57-60.

The plaintiffs in this case have pointed to no reason why we should conclude otherwise. Accordingly, we conclude, on the basis of the contract language, that Citicorp had no duty to provide the plaintiffs with an accurate appraisal and, therefore, Citicorp was entitled to summary judgment as a matter of law on the plaintiffs’ breach of contract claim.

The plaintiffs also claim that even if Citicorp had no contractual duty, it nonetheless had a duty to provide them with an accurate appraisal, which duty arose as a result of the close and substantial business relationship that Frank J. Forte had with Citicorp, and that its failure to provide them with an appraisal that they could rely on constituted a breach of that duty.

The plaintiff in Dubinsky also claimed that the lender’s failure to supply him with an accurate appraisal constituted a breach of the implied covenant of good faith and fair dealing. In that case, the record failed to disclose any relationship between the lender and the applicant on which to predicate a duty to perform an accurate appraisal for the benefit of the plaintiff and, accordingly, we concluded that the court properly rendered summary judgment in favor of the lender as a matter of law.

The plaintiffs in this case seek to avoid the result in Dubinsky by alleging that Frank J. Forte had an established business relationship with Citicorp, which was of such a nature that it justified imposing on Citicorp a duty to provide the plaintiffs with an accurate appraisal of the property. We disagree.

“It is well settled that a fiduciary or confidential relationship is characterized by a unique degree of trust and confidence between the parties, one of whom has superior knowledge, skill or expertise and is under a duty to represent the interests of the other. . . . Although this court has refrained from defining a fiduciary relationship in precise detail and in such a manner as to exclude new situations . . . we have recognized that not all business relationships implicate the duty of a fiduciary.” (Citations omitted; internal quotation marks omitted.) Hi-Ho Tower, Inc. v. Com-Tronics, Inc., 255 Conn. 20, 38, 761 A.2d 1268 (2000). A fiduciary duty exists where there is evidence of a “unique degree of trust and confidence between the parties such that the [defendant] undertook to act primarily for the benefit of the plaintiff.” (Internal quotation marks omitted.) Id., 41.

In the present case, the cover letter that was sent to the plaintiffs along with their copy of the appraisal expressly stated that the sole purpose of the appraisal was to assist Citicoip in determining whether the property provided adequate security for the amount of the plaintiffs’ loan and that Citicorp would not be responsible for the accuracy of the appraisal. In light of that unequivocal language, the plaintiffs can hardly argue that Citicorp undertook to act primarily for their benefit or that it knew or should have known, on the basis of a prior business relationship between the parties, that the plaintiffs would rely on the appraisal in determining whether they should purchase that property.

Furthermore, “[t]he law will imply [fiduciary responsibilities] only where one party to a relationship is unable to fully protect its interests [or where one party has a high degree of control over the property or subject matter of another] and the unprotected party has placed its trust and confidence in the other. . . . The fact that one business person trusts another and relies on [the person] to perform [his obligations] does not rise to the level of a confidential relationship for purposes of establishing a fiduciary duty.” (Internal quotation marks omitted.) Id.

Here, the record does not disclose that the plaintiffs were unable to protect their interests or were required to rely on the appraisal provided by Citicorp. On the contrary, the plaintiffs could have protected their interests by having an appraisal prepared for their benefit. They did not do so. Instead, they chose to rely on the appraisal that was supplied by the lender. They cannot now seek to hold Citicorp responsible for their misplaced reliance. Additionally, the fact that the plaintiffs trusted Citicoip to provide them with an accurate appraisal does not warrant imposing a duty on Citicoip to act for their benefit without providing some basis for doing so.

We conclude that summary judgment rendered in favor of Citicoip as to its claims regarding a duty to provide an accurate appraisal to the plaintiffs was proper as a matter of law.

The judgment is reversed as to count one of the plaintiffs’ revised complaint and affirmed as to count two of that complaint and the case is remanded for further proceedings not inconsistent with this opinion.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1989) § 36-9h (b), now § 36a-755 (b), provides: “Any financial institution which directly or indirectly imposes a fee on any applicant for an appraisal on real property to secure a mortgage loan shall make available to such applicant at no charge a copy of the appraisal report.”


source: Caselaw Access Project

author: DALY, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. RICHARD BRECKENRIDGE
    (AC 20501)
    Lavery, C. J., and Foti and Daly, Js.

      Argued May 30
    officially released October 23, 2001

      Gerald E. Bodell, special public defender, for the appellant (defendant).

      Richard F. Jacobson, special assistant state’s attorney, with whom, on the brief, was John C. Smriga, supervisory assistant state’s attorney, for the appellee (state).
   Opinion

DALY, J.

The defendant, Richard Breckenridge, appeals from the judgment of the trial court revoking his probation pursuant to General Statutes § 53a-32 and committing Mm to the custody of the commissioner of correction for a period of five years. On appeal, the defendant claims that the court improperly (1) deMed his motion for a continuance and (2) concluded that sufficient evidence exists to support its finding of a violation of probation. We affirm the judgment of the trial court.

The following facts are relevant to our resolution of the defendant’s appeal. The defendant was convicted of attempt to commit assault in the first degree on September 25, 1992, and sentenced to twelve years imprisonment, suspended after six years, with tMee years probation. The defendant commenced Ms probationary period on June 27, 1997. One of the conditions of the defendant’s probation banned Ms possession or control of any weapon.

On August 6, 1999, shortly before micLMght, Officer Thomas Scanlon of the Stamford police department noticed a veMcle that was stopped at a red traffic signal on Baxter Avenue, with dark tinted windows and a semi-clear plastic cover over the registration plate. Scanlon activated the overhead lights on Ms police veMcle to have the driver stop at the side of the road. The veMcle, however, wMch Scanlon observed bemg operated by a small to medium height male who was the sole occupant, accelerated and drove away at speeds ranging from fifty to sixty-five miles per hour. Scanlon pursued the vehicle for several blocks along Baxter Avenue. When the vehicle drove onto an entrance ramp toward Interstate 95, the police watch commander ordered Scanlon to terminate the pursuit.

At approximately 2 a.m., Scanlon returned to the scene where the pursuit had begun to search for possible discarded contraband. Scanlon noticed an empty vehicle parked on the side of the road with the keys in the ignition and the motor running. That vehicle was different from the one involved in the earlier chase. Scanlon checked the registration, but was unable to locate the owner of the vehicle and further notified the dispatcher about the vehicle.

Soon thereafter, another officer reported that he had been flagged down at a gasoline station by a man looking for his car keys. Scanlon proceeded to the gasoline station, and the man, later determined to be the defendant, stated that he had left his vehicle running on Baxter Avenue because he feared that he would be robbed. The defendant displayed his driver’s license, and the address on his license matched the address on the registration of the vehicle that the police had pursued in the earlier chase. The defendant ultimately informed the police officers that he had been involved in the earlier vehicle chase, fie then was arrested and charged with reckless operation of a motor vehicle, engaging in a pursuit and having tinted windows.

The following morning, other police officers were dispatched to the Baxter Avenue scene, where they discovered a loaded black revolver in the grass, three to four feet away from the side of the road. There were fresh divot marks in the grass. The police decided to question the defendant about the revolver discovered on the side of the road of the chase route. Prior to the defendant’s being questioned, police Sergeant Anthony Lupinacci read to the defendant his Miranda rights, and the defendant signed the acknowledgement form. The defendant admitted to the police officer that he had discarded the revolver during the vehicle chase to avoid being stopped while in possession of a weapon. The defendant subsequently was charged with carrying a pistol or revolver without a permit in violation of General Statutes § 29-35 (a), criminal possession of a pistol or revolver in violation of General Statutes § 53a-217c (a) (1) and possession of a weapon in a motor vehicle in violation of General Statutes § 29-38.

A probation violation hearing ensued. The court found that the defendant had violated the condition of his probation prohibiting him from possessing a weapon. The court revoked the defendant’s probation and committed him to the custody of the commissioner of correction for five years. At the subsequent jury trial regarding the criminal charges of possession of a weapon, the defendant was acquitted of all charges. This appeal followed.

I

The defendant first contends that the court abused its discretion and deprived him of due process by denying his motion for a continuance pending the outcome of the criminal proceeding against him for possession of a weapon. We are not persuaded.

The following facts are relevant to our resolution of the defendant’s claim. Prior to his probation revocation hearing, the defendant filed a motion for a continuance until the criminal case against him was decided. In support of his motion, the defendant asserted that his right to defend himself would be prejudiced if the probation hearing was held prior to the disposition of his criminal trial because (1) he intended to exercise his rights to have a speedy trial, (2) he intended to seek a suppression hearing in connection with his criminal trial regarding the statements that he had made to the police and (3) his right to testify in his defense would be implicated. The court denied the defendant’s motion.

A trial court possesses broad discretion in deciding whether to grant or deny a motion for a continuance. State v. Williams, 200 Conn. 310, 320, 511 A.2d 1000 (1986). “The determination of whether to grant a request for a continuance is within the discretion of the trial court, and will not be disturbed on appeal absent an abuse of discretion. ... A reviewing court is bound by the principle that [ejvery reasonable presumption in favor of the proper exercise of the trial court’s decision will be made.” (Internal quotation marks omitted.) State v. Marshall, 51 Conn. App. 469, 472, 722 A.2d 1221, cert. denied, 248 Conn. 901, 732 A.2d 178 (1999). To prove an abuse of discretion, the appellant must demonstrate that the denial of the continuance was unreasonable or arbitrary. State v. Bradley, 39 Conn. App. 82, 87, 663 A.2d 1100 (1995), cert. denied, 236 Conn. 901, 670 A.2d 322 (1996). “[T]he right of a defendant to a continuance is not ‘absolute’ and the propriety of a denial of one is to ‘be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied.’ ” State v. Williams, supra, 320.

This court has held on several occasions that “[a] revocation of probation proceeding based upon a violation of a criminal law need not be deferred until after a disposition of the charges underlying the arrest because the purpose of a probation revocation hearing is to determine whether a defendant’s conduct constituted an act sufficient to support a revocation of probation; Payne v. Robinson, 10 Conn. App. 395, 523 A.2d 917 (1987) [aff'd, 207 Conn. 565, 541 A.2d 504, cert. denied, 488 U.S. 898, 109 S. Ct. 242, 102 L. Ed. 2d 230 (1988)]; rather than whether the defendant had, beyond a reasonable doubt, violated a criminal law.” (Internal quotation marks omitted.) State v. Rollins, 51 Conn. App. 478, 484, 723 A.2d 817 (1999); see also State v. Jones, 55 Conn. App. 243, 248-49, 739 A.2d 697 (1999), cert. denied, 253 Conn. 922, 754 A.2d 798 (2000). As a revocation of probation hearing need not be deferred until after the disposition of the underlying criminal charges, the defendant’s claim that a continuance was necessary to effectuate his intent to seek a speedy trial is without merit. Moreover, on the basis of the aforementioned principle, the defendant’s assertion that the court abused its discretion in denying his motion for a continuance, when he intended to seek a suppression hearing in connection with his criminal trial, similarly is without merit.

The defendant further contended that if his probation revocation hearing was not postponed, his right to testify in his behalf would be implicated and his defense prejudiced. “In his request for a continuance, it was the defendant’s burden to provide the court with the substance of any specific testimony he desired to give in the probation violation proceeding. See State v. Hoffler, 55 Conn. App. 210, 214, 738 A.2d 1145, cert. denied, 251 Conn. 923, 742 A.2d 360 (1999).” State v. Campbell, 61 Conn. App. 99, 103, 762 A.2d 12 (2000), cert. denied, 255 Conn. 934, 767 A.2d 105 (2001). If the defendant fails to provide the court with the substance of the specific testimony, “we, as a reviewing court, cannot assume that the trial court’s denial of the request for a continuance in any way affected the defendant’s decision not to testify in the probation violation proceeding.” Id. Here, the defendant failed to provide any indication of the testimony that he wanted to give in the probation hearing. “Because an accused’s decision whether to testify seldom turns on the resolution of one factor ... a reviewing court cannot assume that the adverse ruling motivated a defendant’s decision not to testify.” (Internal quotation marks omitted.) State v. Hoffler, supra, 214.

We conclude, therefore, that the court did not abuse its broad discretion, nor did it deprive the defendant of his due process rights, in denying his motion for a continuance.

II

The defendant next claims that the evidence presented was insufficient to support the court’s finding that he violated a condition of his probation. We are not persuaded.

“To support a finding of probation violation, the evidence must induce a reasonable belief that it is more probable than not that the defendant has violated a condition of his or her probation. ... In making its factual determination, the trial court is entitled to draw reasonable and logical inferences from the evidence. . . . This court may reverse the trial court’s initial factual determination that a condition of probation has been violated only if we determine that such a finding was clearly erroneous. ... A finding of fact is clearly erroneous when there is no evidence to support it . . . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. ... In making this determination, every reasonable presumption must be given in favor of the trial court’s ruling.” (Internal quotation marks omitted.) State v. Jones, supra, 55 Conn. App. 247. “It is the sole province of the trial court to weigh and interpret the evidence before it and to pass upon the credibility of witnesses.” (Internal quotation marks omitted.) State v. Martinez, 55 Conn. App. 622, 628, 739 A.2d 721 (1999); see also 2 B. Holden & J. Daly, Connecticut Evidence (2d Ed. 1988) § 125a. A probation violation must be proven by a fair preponderance of the evidence. State v. Rollins, supra, 51 Conn. App. 482.

After thoroughly reviewing the record, we conclude that the evidence presented, and in particular the testimony of the police sergeant, Lupinacci, provides sufficient proof to demonstrate by a fair preponderance of the evidence that the defendant had possessed a weapon and violated a condition of his probation. In arriving at the conclusion that the state had proven by a fair preponderance of the evidence that it was more probable than not that the defendant had possessed a weapon in violation of his probation, the court detailed the evidence on which it relied. The court found that the defendant had been involved in a vehicle chase with the police, that a revolver was discovered alongside the path of the chase route and that it appeared that the revolver had been recently tossed to the ground. Further, the court relied on the testimony of Lupinacci, who stated that the defendant had admitted to him that he threw the revolver out of the vehicle’s window during the chase.

The defendant challenges the credibility of the testimony of the police sergeant and the physical evidence connecting the weapon to the defendant. As previously stated, however, it is solely within the province of the court to decide what weight to give to the evidence and to the credibility of witnesses. Id., 485. “We must defer to the trier of fact’s assessment of the credibility of the witnesses that is made on the basis of its firsthand observation of their conduct, demeanor and attitude.” State v. Campbell, supra, 61 Conn. App. 102.

The defendant further implies that his acquittal on the possession of a weapon charges in the subsequent criminal proceeding mandates the conclusion that insufficient evidence existed to support a finding that he violated a condition of his probation. This court has addressed, and rejected, similar claims in State v. Rollins, supra, 51 Conn. App. 483, and State v. Jones, supra, 55 Conn. App. 248. In Rollins and Jones, the defendants, who were appealing from the revocation of their probation, claimed, in pertinent part, that they were entitled to an acquittal of the probation violation charge because they were ultimately acquitted at trial on the underlying charges. We disagreed and concluded that a trial court’s finding of a violation of probation is not clearly erroneous in light of an acquittal at trial on the basis of the same circumstances.

In so holding, we noted that “the purpose of a probation revocation hearing is to determine whether a defendant’s conduct constituted an act sufficient to support a revocation of probation; Payne v. Robinson, [supra, 10 Conn. App. 395]; rather than whether the defendant had, beyond a reasonable doubt, violated a criminal law. The proof of the conduct at the hearing need not be sufficient to sustain a violation of a criminal law. ... In a probation violation proceeding, all that is required is enough to satisfy the court within its sound judicial discretion that the probationer has not met the terms of his probation. [Id., 403].” (Citations omitted; internal quotation marks omitted.) State v. Rollins, supra, 51 Conn. App. 484; see also State v. Jones, supra, 55 Conn. App. 248-49.

The standard of proof necessary to sustain a conviction for a violation of a criminal law differs from that required in a revocation of probation hearing. “In a criminal proceeding, substantive guilt must be established beyond a reasonable doubt; a probation violation need be proven only by a preponderance of the evidence.” State v. Rollins, supra, 51 Conn. App. 483. Because of those different standards, a defendant’s acquittal of charges in a subsequent criminal trial does not affect the trial court’s finding of a violation in a probation revocation hearing. State v. Jones, supra, 55 Conn. App. 249. We therefore conclude that the court’s finding that the defendant violated his probation by possessing a weapon was not clearly erroneous.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-32 provides in relevant part: “(a) At any time during the period of probation or conditional discharge, the court or any judge thereof may issue a warrant for the arrest of a defendant for violation of any of the conditions of probation or conditional discharge .... Upon such arrest and detention, the probation officer shall immediately so notify the court or any judge thereof. Thereupon, or upon an arrest by warrant as herein provided, the court shall cause the defendant to be brought before it without unnecessary delay for a hearing on the violation charges. . . .
      “(b) If such violation is established, the court may: (1) Continue the sentence of probation or conditional discharge; (2) modify or enlarge the conditions of probation or conditional discharge; (3) extend the period of probation or conditional discharge, provided the original period with any extensions shall not exceed the periods authorized by section 53a-29; or (4) revoke the sentence of probation or conditional discharge. If such sentence is revoked, the court shall require the defendant to serve the sentence imposed or impose any lesser sentence. Any such lesser sentence may include a term of imprisonment, all or a portion of which may be suspended entirely or after a period set by the court, followed by a period of probation with such conditions as the court may establish. No such revocation shall be ordered, except upon consideration of the whole record and unless such violation is established by the introduction of reliable and probative evidence and by a preponderance of the evidence.”

        Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

       We note that “[t]he trial court did not prepare a written memorandum of decision and did not sign the transcript of its oral decision, as required by Practice Book § 64-1. ‘The duty to provide [the Appellate Court] with a record adequate for review rests with the appellant.’ Chase Manhattan Bank/City Trust v. AECO Elevator Co., 48 Conn. App. 605, 607, 710 A.2d 190 (1998). We have frequently declined to review claims where the appellant has failed to provide the court with an adequate record for review. See id., 608-609. We have, on occasion, reviewed claims of error in light of an unsigned transcript as long as the transcript contains a sufficiently detailed and concise statement of the trial court’s findings.” Bank of America, FSB
        v. Franco, 57 Conn. App. 688, 691 n.l, 751 A.2d 394 (2000). In this case, the defendant, pursuant to Practice Book § 64-1 (a) (1), filed a notice to obtain a written memorandum of decision or a signed transcript. The trial court, by not acting on the request, denied it, and the defendant did not file a motion for review with this court. The defendant has filed a transcript, however, and the transcript provides an adequate basis from which to glean the trial court’s rationale in denying the defendant’s motion for a continuance. Accordingly, although we do not condone this practice, we will review the defendant’s claim.

       We further note that the record before this court does not disclose whether a suppression hearing regarding the defendant’s statements to the police actually was held.

       We note again that “[t]he trial court did not prepare a written memorandum of decision and did not sign the transcript of its oral decision, as required by Practice Book § 64-1. . . . We have, on occasion, reviewed claims of error in light of an unsigned transcript as long as the transcript contains a sufficiently detailed and concise statement of the trial court’s findings.” (Citations omitted; internal quotation marks omitted.) Bank of America, FSB v. Franco, supra, 57 Conn. App. 691 n.1. In this case, the defendant has filed the transcript, and the transcript provides an adequate basis from which to glean the trial court’s rationale in deciding to revoke the defendant’s probation. Accordingly, although we do not condone this practice, we will review the defendant’s claim.


author: LAVERY, C. J.

text:
    MURIEL SULLIVAN v. WILLIAM W. SULLIVAN
    (AC 20380)
    Lavery, C. J., and Spear and Daly, Js.
    Argued February 26
    officially released October 30, 2001

      Peter C. Hunt, for the appellant (plaintiff).

      Christopher G. Winans, for the appellee (defendant).
   Opinion

LAVERY, C. J.

The plaintiff, Muriel Sullivan, appeals from the judgment of the trial court fixing the amount of alimony arrearage due from the defendant, William W. Sullivan, to the plaintiff. On appeal, the plaintiff claims that the trial court improperly interpreted the provisions of the parties’ separation agreement dealing with adjustments in alimony for inflation and, on the basis of that incorrect interpretation, miscalculated the amount of alimony arrearage. We agree and, accordingly, reverse the judgment of the trial court.

The following facts are relevant to our consideration of this appeal. The parties were married for twenty-four years until their divorce in 1980. The judgment of dissolution that the trial court rendered provided for the payment of periodic alimony from the defendant to the plaintiff. The judgment also provided that the defendant pay an annual cost of living allowance in addition to the amount of alimony provided in the judgment. The court found that the parties’ separation agreement was fair and equitable and incorporated it by reference into the dissolution judgment. The judgment specifically referred to the parties’ separation agreement for the method by which the cost of living allowance should be calculated.

On June 22, 1999, the plaintiff filed a motion for contempt, alleging, inter alia, that the defendant had failed to pay the cost of living adjustments provided for by the parties’ separation agreement that was incorporated into the judgment dissolving their marriage for 1983 and all subsequent years. The plaintiff also sought interest on the arrearage.

On August 11,1999, the trial court conducted a hearing on the plaintiffs motion at which experienced certified public accountants testified for both the plaintiff and the defendant, offering conflicting testimony as to the proper method for calculating the total amount of cost of living adjustments that the defendant should have paid. Their disagreement revolved around the proper method for calculating the cost of living allowance provided for in the agreement.

In its memorandum of decision, the court accepted the calculations of the defendant’s accountant as to the amount of the cost of living increase for each year. The court rendered judgment in the plaintiffs favor for the total of these amounts for all relevant years. The court denied the plaintiffs request for an award of interest, concluding that “the husband [acted] in good faith by paying his monthly alimony obligation for the past nineteen years; therefore, the court will not assess any interest . . . .” The court accordingly denied the plaintiffs motion for contempt, finding no wilful violation of a court order by the defendant. Following the court’s denial of a motion to reargue, the plaintiff filed this appeal.

The standard of review governing this matter is well settled. “In a marriage dissolution action, an agreement of the parties executed at the time of the dissolution and incorporated into the judgment is a contract of the parties. Amodio v. Amodio, 56 Conn. App. 459, 470, 743 A.2d 1135, cert. granted on other grounds, 253 Conn. 910, 754 A.2d 160 (2000) (appeal withdrawn September 27, 2000). The construction of a contract to ascertain the intent of the parties presents a question of law when the contract or agreement is unambiguous within the four comers of the instrument. . . . The scope of review in such cases is plenary.” (Internal quotation marks omitted.) Way v. Way, 60 Conn. App. 189, 195, 758 A.2d 884, cert. denied, 255 Conn. 901, 762 A.2d 910 (2000). The language of the separation agreement in this case is clear and unambiguous; our review is therefore plenary.

As stated previously, the court utilized the calculations of the defendant’s expert witness, a certified public accountant, as to the amount of cost of living increases that the defendant did not pay. These calculations were incorrect, and so we reverse the judgment of the trial court, which was based on those calculations. The flaw in the calculations performed by the defendant’s accountant is that, when performing the necessary calculation for each year, he used the original base amount of agreed alimony as the basis for determining that year’s cost of living adjustment.

The parties’ separation agreement, however, provided that “all monies paid by the Husband to the Wife . . . during the preceding calendar year shall be adjusted in exact proportion as the cost of living figure of the preceding year is to the newly established figure.” (Emphasis added.) This language means that in each year, after the cost of living adjustment is calculated, that adjustment should be added to the base alimony for the purposes of calculating the cost of living adjustment for the following year.

To ensure that the trial court is able to calculate the amount of arrearage accurately on remand, we provide the following road map for computing the amount that the defendant should have paid in each year since 1983. For 1983, the court should multiply the amount provided in the agreement, $17,500, by the 1983 Consumer Price Index (CPI), and then divide it by the 1982 CPI. For each year from 1984 through 1989, the court should multiply the amount computed by this method for the prior year by that year’s CPI and divide it by the previous year’s CPI.

The calculation for 1990 is slightly more complex because of the adjustment in the base amount that occurred in that year. First, it is necessary to determine the aggregate cost of living increases by the method outlined previously. This is the difference between the 1989 payment and the original base amount of $17,500. This amount must then be adjusted for the cost of living by multiplying it by the 1990 CPI and dividing it by the 1989 CPI. Finally, the adjusted amount must be added to the new base amount, $15,625, to determine the amount to be paid for 1990.

For 1991, the first step is to take the aggregate cost of living increase amount, adjusted to the 1990 cost of living as outlined previously, and multiply it by the 1991 CPI, and then divide it by the 1990 CPI to adjust it to the 1991 cost of living. The court should then add this amount to the 1991 base amount, $15,000, to determine the 1991 payment.

For 1992 and all subsequent years, all that is necessary is to take the previous year’s payment, computed as outlined previously, and multiply it by that year’s CPI and then divide it by the previous year’s CPI. The application of this method will provide the correct amount that should have been paid in alimony for each year from 1983 through the present. Subtracting the amount that the defendant actually paid will yield the arrearage for each year; adding these amounts for all years in question will provide the total arrearage in alimony applicable to all years.

The method outlined in this opinion for calculating the cost of living adjustment is supported by a number of statutes and cases, both from Connecticut and from several of our sister states, that have provided that cost of living adjustments should be calculated based on the previous year’s payments, including prior cost of living adjustments.

For example, General Statutes § 3-2a (c) provides that the cost of living allowance portion of the pensions of former governors is to be calculated on the basis of the preceding year’s pension and cost of living allowance. General Statutes § 5-162b provides that the cost of living adjustment for retired state employees is to be based on the combined monthly retirement salary and cost of living allowances paid during the prior year.

In Dubis v. East Greenwich Fire District, 754 A.2d 98 (R.I. 2000), the Rhode Island Supreme Court, construing an agreement that provided for a 2.5 percent cost of living allowance each year, stated: “It is clear that the most reasonable way that this . . . [cost of living allowance] could be tied to cost-of-living rises in the economy is for it to be calculated using the entire pension benefit of the previous year as a base, including the previous year’s [cost of living allowance]. To construe this unambiguous contract any other way would not give the [cost of living allowance] provision its ordinary meaning and would produce an absurd result.” (Emphasis added.) Id., 100-101.

In Celentano v. Oaks Condominium Assn., Superior court, judicial district of Waterbury, Docket No. 0159297 (January 11, 2001), the trial court noted that the correct method for calculating a cost of living increase is to multiply the previous year’s payment “by a fraction that has the current year’s consumer price index as the numerator and the consumer price index for [the previous year] as the denominator,” the same method we use in this opinion.

In Grant v. Nellius, 377 A.2d 354 (Del. 1977), the Delaware Supreme Court dealt with the proper interpretation of a state statute that provided in relevant part;: “All employees . . . shall be paid a salary supplement as a percentage of their base pay equivalent to the percentage change in the Consumer Price Index for the Philadelphia region. The Consumer Price Index figure at the beginning of each calculation period shall be subtracted from the Consumer Price Index at the end of the calculation period, multiplied by 100 and divided by the Consumer Price Index at the beginning of the period to determine the percentage of increase or decrease for cost-of-living for that period. . . . For purposes of this section, base pay is defined as all salary, wages and fees . . . paid to an employee.” (Emphasis added; internal quotation marks omitted.) Id., 355-56.

Interpreting this provision, the Delaware Supreme Court stated: “In our view . . . [the statute’s] sole purpose is to create an automatic mechanism to keep future State salaries in line with inflationary trends in the regional economy so that salaries will be adjusted to meet marginal changes in the ‘cost-of-living.’ ” Id., 357. The Delaware statute uses a method identical to the one set forth in this opinion to calculate the cost of living adjustment for state employees.

The plain language of the separation agreement and the authorities set forth interpreting similar language inexorably lead us to the conclusion that the method outlined in this opinion is the method set forth in the separation agreement for computing yearly cost of living adjustments.

In summary, the method that the court adopted for computing the cost of living adjustment failed to account for the effect of prior cost of living adjustments, which the parties’ separation agreement clearly indicates it was their intent to include, in the yearly calculation of cost of living adjustments.

The judgment is reversed and the case is remanded for further proceedings to recalculate the alimony arrearage using the method outlined in this opinion.

In this opinion the other judges concurred.

       The judgment provided in relevant part: '‘[Cjommencing this day and for a period of two (2) years thereafter, the husband shall pay to the wife, as periodic unallocated alimony, the sum of $26,000 per year payable $2166.66 per month. At the expiration of the two (2) years and for a period of eight (8) years thereafter, the husband shall pay to the wife, as unallocated alimony, the sum of $17,500 per year payable $1458.33 per month. After the expiration of said eight (8) year period, and thereafter, the husband shall pay to the wife as unallocated alimony, the sum of $15,000 per year payable $1250 per month. In addition to said payments, if applicable as additional periodic alimony . . . the husband shall pay to the wife as a cost of living allowance a sum to commence in February of 1982 with the first adjustment to be in February, 1983, as per Agreement on file.” (Emphasis added.)

       Article 2.1 of the separation agreement provides in relevant part: “In addition to said payments, if applicable as additional periodic alimony or child support as the case may be, the Husband shall pay to the Wife as a cost of living allowance a sum to commence in February of 1982, with the first adjustment to be in February, 1983, and to be arrived at as follows:
      “(a) The Consumer Price Index figure applicable to January, 1982, shall be the basis for further increases. On the second day of February, 1983, and on the same day of each year thereafter, an evaluation of the cost of living for the preceding calendar year shall be made and an average figure of the twelve months of the preceding calendar year of the Consumer Price Index shall be taken.

        “(b) If the cost of living so computed shall be different from the present cost of living, then all monies paid by the Husband to the Wife for alimony and support during the preceding calendar year shall be adjusted in exact, proportion as the cost of living figure of the preceding year is to the newly established figure. Any monies computed to be due in accordance with the above formula shall be paid by the Husband to the Wife in twelve monthly payments for the next calendar year.”

       Although the trial court stated that it was “unpersuaded by the interpretation of this agreement by either accountant,” it nonetheless used the exact total amount, of cost of living allowances contained in the analysis provided by the defendant’s accountant.

       The base amounts of alimony are taken from the parties’ separation agreement. See footnote 1.

       Because the separation agreement is dated April 24,1980, the eight year period during which the annual payment was to be $17,500 ended in April, 1990. As a result, the amount of alimony for the calendar year 1990 is based on $17,500 per year for the first quarter of 1990 (the end of the eight year period with payments of $17,500) and $15,000 per year for the remainder of 1990.


author: DRANGINIS, J.

text:
    LAWRENCE P. MCDONNELL ET AL. v. PAUL FALCO ET AL.
    (AC 20178)
    Mihalakos, Dranginis and Daly, Js.

      Argued May 4
    officially released October 30, 2001

      James E. Coyne, with whom, on the brief, was Anthony D. Sutton, for the appellant (named defendant).

      Hanon W. Russell, for the appellee (named plaintiff).
   Opinion

DRANGINIS, J.

This appeal arises from an action brought by the plaintiffs against the defendant Paul Falco. The trial court rendered judgment against the defendant on the first count of the plaintiffs complaint, which alleged, inter alia, that the defendant has been engaging in commercial activities on his property in violation of the zoning regulations of the town of Easton. On appeal, the defendant claims that the trial court improperly (1) concluded that the plaintiff had not failed to exhaust his administrative remedies, (2) granted injunctive relief despite the plaintiffs failure to prove special damages, (3) found that the defendant’s activities violated the town’s zoning regulations and (4) denied the defendant’s special defense of laches. We reverse the judgment of the trial court on the ground that because the plaintiff failed to prove special damages, the court improperly granted injunctive relief. We, therefore, need not consider whether the court properly found the defendant to be in violation of the zoning regulations or denied the defendant’s special defense of laches.

The following additional facts and procedural history are necessary for our resolution of this appeal. The defendant owns property consisting of approximately 7.1 acres located at 75 Barrows Road in Easton. For twenty-five years, the defendant has been conducting occasional business operations on a portion of his wooded property. Among the business activities on the property are tree clearing, log splitting, woodchipping and the production of mulch and firewood for commercial sale. Approximately 80 percent of the defendant’s raw materials come from sources outside of his property.

The plaintiff claimed that the activities on the defendant’s land were in violation of the town’s zoning laws and that they were causing unacceptable levels of noise and odor. In September, 1997, the plaintiff, through his attorney, wrote a complaint letter to the town’s zoning enforcement officer, listing the alleged violations and seeking a cease and desist order. Thereafter, the zoning enforcement officer investigated the complaint by inspecting the defendant’s property and by questioning the defendant as to its use. The complaint letter was forwarded to the Easton planning and zoning commission (commission) on October 1,1997. The plaintiff did not attend commission meetings held on October 6 and 27, 1997, at which the commission discussed the defendant’s property and, after hearing testimony from the defendant, determined that his use was not in violation of the zoning regulations.

On February 17, 1998, the plaintiff brought a complaint seeking injunctive relief and damages. He claimed that the prohibited use caused excessive noise and odors, diminished the value of his property, and caused him to suffer emotional distress, loss of sleep and appetite, headaches and nausea. On September 22, 1999, the court found that the defendant’s commercial use of his property violated the Easton zoning regulations and issued a permanent injunction. The court refused to award damages, concluding that the plaintiff failed to prove that he suffered any damages or injuries. This appeal followed.

I

The defendant first claims that the trial court improperly found that the plaintiff did not fail to exhaust his administrative remedies pursuant to General Statutes § 8-8 (b). The court found that no notice of the commission’s decision was ever published or in any way communicated to the plaintiff or his attorney. The court concluded that, because the plaintiff had no notice of the decision, he could not be expected to file an appeal. Specifically, the defendant argues that the underlying complaint effectively sought to overturn the commission’s October 27, 1997 decision and, therefore, should have been brought to the town of Easton zoning board of appeals. The defendant argues that the commission’s only notice requirement in this case under General Statutes § 1-225 of the Freedom of Information Act was satisfied by filing the agendas and minutes of its meetings. Furthermore, he argues that the plaintiff was required by General Statutes § 8-7 and § 9.4.1 (A) of the Easton zoning regulations to appeal from the decision of the commission to the zoning board of appeals within thirty days. The plaintiff having failed to do so, the defendant claims that the plaintiff was barred from bringing this action and that the trial court lacked subject matter jurisdiction. The plaintiff, on the other hand, argues that notice was necessary pursuant to General Statutes § 8-28 and that, because the commission failed to comply with that section, the plaintiff was not on notice and cannot be deemed to have failed to exhaust his administrative remedies.

“Because the exhaustion [of administrative remedies] doctrine implicates subject matter jurisdiction, [the court] must decide as a threshold matter whether that doctrine requires dismissal of the [plaintiffs] claim. . . . We first note that, because [a] determination regarding a trial court’s subject matter jurisdiction is a question of law, our review is plenary.” (Citation omitted; internal quotation marks omitted.) Hyllen-Davey v. Plan & Zoning Commission, 57 Conn. App. 589, 592, 749 A.2d 682, cert. denied, 253 Conn. 926, 754 A.2d 796 (2000).

“The two part rationale for the exhaustion doctrine is: (1) to effectuate the legislative intent that the issue in question be handled in the first instance by local administrative officials in order to provide aggrieved persons with full and adequate administrative relief, and to give the reviewing court the benefit of the local board’s judgment . . . and (2) to relieve courts of the burden of prematurely deciding questions that may be resolved satisfactorily through the administrative process. . . .

“It is also beyond dispute, however, that [t]he right of appeal, if it is to have any value, must necessarily contemplate that the person who is to exercise the right be given the opportunity of knowing that there is a decision to appeal from and of forming an opinion as to whether that decision presents an appealable issue. . . . Until the prospective appellant has either actual or constructive notice that a decision has been reached, the right of appeal is meaningless.” (Citations omitted; internal quotation marks omitted.) Loulis v. Parrott, 241 Conn. 180, 191, 695 A.2d 1040 (1997).

Because the plaintiff in this case had no actual or constructive notice of the commission’s finding that the defendant was in compliance with the town’s zoning regulations, we conclude that he cannot be deemed to have failed to exhaust his administrative remedies. In this case, the plaintiff made a complaint to the zoning enforcement officer on September 29, 1997. The commission accepted that letter on October 1, 1997, and held meetings with respect to the allegations therein on October 6 and 27, 1997. We are not persuaded that the plaintiff had notice of the commission’s decision from the filing of the commission’s agenda and minutes with the town clerk. The filing of the agenda and minutes is not sufficient to satisfy the principle that the right to appeal must be preceded by adequate notice. The commission’s duty to file the agendas and minutes of its meetings arises from an entirely different statutory scheme from the zoning statutes and does not afford the plaintiff a realistic opportunity to appeal to the zoning board of appeals. See id., 195-96 (statute requiring newspaper publication and posting of placard in regard to application for liquor permit did not provide notice that local zoning official certified that premises approved for liquor license). The puipose of the Freedom of Information Act is not to require notice in zoning cases; rather, it codifies the “long-standing legislative policy . . . favoring the open conduct of government and free public access to government records.” (Internal quotation marks omitted.) Chief of Police v. Freedom of Information Commission, 252 Conn. 377, 387, 746 A.2d 1264 (2000), citing Wilsons. Freedom of Information Commission, 181 Conn. 324, 328, 435 A.2d 353 (1980). The commission’s decision in this case was not published, nor were the plaintiff or his attorney sent notice of the decision. The plaintiff did not receive adequate notice of the commission’s decision.

We therefore conclude that the reasoning in Loulis v. Parrott, supra, 241 Conn. 180, is controlling here. In Loulis, our Supreme Court held that even where the legislature has not required notice of a particular administrative action, it does not follow that aggrieved persons are barred from challenging that action. Id., 193-94. Thus, in Loulis, the court held that the plaintiffs, who had no notice of the granting of a zoning permit, had not failed to exhaust their administrative remedies when they sought injunctive relief in the trial court. Id., 191-92. We conclude that the plaintiff has not failed to exhaust his administrative remedies.

II

The defendant next claims that the plaintiff failed to prove special damages and that, on the basis of Granger v. A. Aiudi & Sons, 60 Conn. App. 36, 758 A.2d 417, cert. denied, 255 Conn. 902, 762 A.2d 908 (2000), the trial court decision must be reversed. We agree with the defendant.

“Our Supreme Court recently set forth the governing principles for our standard of review as it pertains to a trial court’s discretion to grant or deny a request for an injunction: A party seeking injunctive relief has the burden of alleging and proving irreparable harm and lack of an adequate remedy at law. ... A prayer for injunctive relief is addressed to the sound discretion of the court and the court’s ruling can be reviewed only for the purpose of determining whether the decision was based on an erroneous statement of law or an abuse of discretion. . . . Therefore, unless the trial court has abused its discretion, or failed to exercise its discretion . . . the trial court’s decision must stand.” (Internal quotation marks omitted.) Id., 44.

In Granger, the plaintiff sought to enjoin the defendant from operating a rock crushing and concrete manufacturing plant on the defendant’s property. The plaintiff, in an amended complaint, alleged that the defendant’s use was unreasonable, that it caused noise, air pollution and water and traffic diversion, that it interfered with the plaintiffs use and enjoyment of his property and that it caused a diminution in the value of his property. He sought a permanent injunction and compensation for the alleged diminution in value. The trial court assumed, without finding, that the defendant violated the zoning regulations, but having found no special damages, dismissed the case. On appeal, this court affirmed the trial court’s decision. Id., 38. We held that the trial court correctly stated that “[t]hough the primaiy responsibility for enforcing zoning regulations rests with the zoning commission, where a violation results in special damage to an individual, the injured party has a right to seek injunctive relief [from the court].” (Internal quotation marks omitted.) Id., 45. We held, however, that the plaintiffs were not entitled to an injunction as a matter of law on the basis of the defendant’s alleged zoning violations because the plaintiffs failed to prove that they suffered special damages as a result of the alleged violations. Id., 45-46.

“[Damages] which necessarily result are termed general damages, being shown under the ad damnum, or general allegation of damages, at the end of the declaration; for the defendant must be presumed to be aware of the necessary consequences of his conduct, and therefore cannot be taken by surprise in the proof of them. Some damages are always presumed to follow from the violation of any right or duty implied by law; and therefore the law will in such cases award nominal damages, if none greater are proved. But where the damages, though the natural consequences of the act complained of, are not the necessary result of it, they are termed special damages; which the law does not imply; and therefore, in order to prevent a surprise upon the defendant, they must be particularly specified in the declaration, or the plaintiff will not be permitted to give evidence of them at the trial.” (Internal quotation marks omitted.) Cordner v. Hall, 84 Conn. 117, 119-20, 79 A. 55 (1911). Thus, special damages are damages “which the law does not presume to have been the necessary and direct result of the injury complained of.” Id., 120.

In this case, as in Granger, the plaintiffs amended complaint alleged special damages. Specifically, paragraph nine provides in relevant part: “As a direct result of the conduct of the defendant Falco . . . the plaintiffs have suffered the following damages, which include ... (1) the diminishing value of their respective properties [and] (g) anxiety, emotional distress, loss of sleep, loss of appetite, headaches and nausea . . . .” The trial court, however, concluded that the plaintiff failed to prove special damages. The court noted that the only testimony was that of the plaintiff himself, there was no other evidence as to the level of noise or fumes or the plaintiffs’ alleged health problems resulting from the defendant’s property use, and there was no evidence presented as to the value of his property. Because the court found that the plaintiff failed to prove special damages, we conclude that, pursuant to Granger, the court improperly granted the plaintiff injunctive relief.

The judgment is reversed and the case is remanded with direction to render judgment dissolving the injunction.

In this opinion the other judges concurred.

       The plaintiffs, abutting landowners to the defendant Paul Falco, are Lawrence P. McDonnell, Bazyli Cap, Joseph Kanuch, Harry Ruzicka, Frank Pelligra and Josephine Chañaca. All of the plaintiffs except the named plaintiff withdrew from the action. We refer in this opinion to the named plaintiff, Lawrence P. McDonnell, as the plaintiff. During the pendency of this appeal, the only remaining plaintiff died. His wife, Mary Ann McDonnell, as a joint tenant with the right of survivorship, filed a motion to become a substituted plaintiff, which this court granted.

       The other defendants are Mario Garofalo, the zoning enforcement officer for the town of Easton, and William Kupinse, the first selectman for the town of Easton. All counts as to those defendants were withdrawn. We refer in this opinion to the named defendant, Paul Falco, as the defendant.

       The second count, which was ultimately withdrawn, was against the defendants Garofalo and Kupinse, and alleged that they had failed to enforce the zoning regulations and ordinances of the town despite complaints regarding Falco’s use of his property.

       General Statutes § 8-8 (b) provides in relevant part: “Except as provided in subsections (c), (d) and (q) of this section . . . any person aggrieved by any decision of a board may take an appeal to the superior court for the judicial district in which the municipality is located. The appeal shall be commenced . . . within fifteen days from the date that notice of the decision was published as required by the general statutes. . . .”

       General Statutes § 8-7 provides in relevant part: “An appeal may be taken to the zoning board of appeals by any person aggrieved . . . and shall be taken within such time as is prescribed by a rule adopted by said board, or, if no such rule is adopted by the board, within thirty days, by filing with the zoning commission or the officer from whom the appeal has been taken and with said board a notice of appeal specifying the grounds thereof. ...”

       Section 9.4.1 of the Easton zoning regulations provides in relevant part: “Subject to the limitations in Section 9.4.2 and the requirements in Section 9.4.3, the Board shall have the following powers and duties: (A) to hear and decide appeals where it is alleged that there is an error in any order, requirement or decision made by any official charged with the enforcement of these regulations. . . ."

       General Statutes § 8-28 provides: “Notice of all official actions or decisions of a planning commission, not limited to those relating to the approval or denial of subdivision plans, shall be published in a newspaper having a substantial circulation in the municipality within fifteen days after such action or decision. Any appeal from an action or decision of a planning commission shall be taken pursuant to the provisions of section 8-8.”

       An agenda for the October 27 meeting was filed with the town clerk on October 23,1997. It provided in relevant part: “NEW BUSINESS: Paul Falco, 75 Barrows Road. There was no evidence that an agenda for the October 6 meeting was filed.”

       Interestingly, the defendant, and his attorney were sent letters confirming the decision of the commission, but not until April 2, 1998, after the commencement of the underlying action.