author: O’Connell, J.

text:
    Suffield Bank v. William W. Berman et al.
    (9731)
    (9732)
    O’Connell, Foti and Landau, Js.

      Argued April 26
    decision released July, 30 1991

      Richard P. Weinstein, for the appellants (named defendant et al.).

      Penny Q. Seaman, with whom was Carol A. Fantozzi, for the appellee (plaintiff).
   O’Connell, J.

The defendants appeal from judgments of strict foreclosure in two cases. The parties agree that the cases are identical and we will discuss them in the singular for clarity. The defendants claim that the trial court improperly (1) prevented them from contesting the amount of the mortgage debt and (2) refused to admit the full transcript of a prior hearing into evidence. We affirm the judgments of the trial court.

The following facts are pertinent to our decision. Two of the defendants were owners of the equity of redemption in the property and the remaining defendants were obligated on the mortgage note. After the defendants fell into arrears, one of the equity owners offered to convey the property to the plaintiff to satisfy the mortgage debt. The plaintiff refused the offer, instituted this action, and shortly thereafter filed a demand for disclosure of defense pursuant to Practice Book § 236. Once all of the defendants were defaulted for failure to disclose a defense, the plaintiff filed a motion for judgment of strict foreclosure.

Immediately before the hearing on the motion, the defendants indicated that they intended to object to the plaintiffs affidavit of debt claiming that their obligation to pay interest was discharged when the plaintiff refused to accept a conveyance of the property. The plaintiff objected to the evidence proffered in support of this defense on the grounds that (1) the defendants had been defaulted for failure to disclose a defense, (2) no notice of intent to contest the amount of the debt had been filed prior to the hearing, (3) the proffered evidence was irrelevant because the argument failed as a matter of law, and (4) the evidence was inadmissible because it related to settlement negotiations. The trial court agreed with the plaintiff and rendered judgments based on the affidavit of debt. The defendants appealed.

Where no defense as to the amount of the mortgage debt is interposed in a foreclosure case, the amount due the plaintiff may be proved by an affidavit of debt. Practice Book § 527; Connecticut National Bank v. N. E. Owen II, Inc., 22 Conn. App. 468, 472, 578 A.2d 655 (1990). The defendants rely on Practice Book §§ 367, 372 and 374 for their claim that the court improperly refused to allow them to contest the plaintiffs affidavit of debt. These rules of practice pertain to hearings in damages however, and do not apply to foreclosures. A separate procedure is prescribed for foreclosure actions in Practice Book §§ 206, 236 and 527.

The failure to disclose a defense leads to different procedural results depending on the type of action before the court. In a regular civil case, if the appearing defendants do not disclose a defense, the matter is placed on the trial list pursuant to Practice Book § 253, whereas, in a foreclosure action, a similar default results in the case being placed on the short calendar list pursuant to Practice Book § 206. In a civil case, the matter may take years before the parties go to trial, whereas, in a foreclosure action, the parties are afforded almost immediate access to court. It is readily apparent that due to the nature of foreclosure actions, the spirit of the rules is to expedite matters. See D. Caron, Connecticut Foreclosures (2d Ed.) § 5.0IE. In order for foreclosure cases to move as swiftly as possible through our court system, it is imperative that a defendant disclose any defenses to the mortgage debt prior to the hearing. In the present case, the defendants’ failure to disclose a defense in a timely manner barred them from later contesting liability at the foreclosure hearing. Accordingly, we conclude that the trial court properly refused to allow the defendants to present evidence of any defense to liability.

The defendants claim that Burritt Mutual Savings Bank of New Britain v. Tucker, 183 Conn. 369, 439 A.2d 396 (1981), supports their contention that the trial court improperly allowed the debt to be proved by an affidavit. The issue in Burritt, however, was the accuracy of the calculations in the affidavit as to principal, interest, taxes and late charges. Id., 374. In the present case, the defendants do not dispute the affidavit’s accuracy. Rather, they want to offer evidence that their obligation to pay interest was discharged when the plaintiff refused to accept the real estate as a compromise of the mortgage debt.

The Burritt case is distinguishable from the present one because the defendant in Burritt was contesting the amount of interest due, whereas here the defendants are contesting their liability for paying any interest. In short, defenses relating to the mathematical calculation of the debt need not be disclosed but defenses that go to the issue of the defendant’s liability for the debt must be disclosed. In the present case, the evidence being proffered went to the issue of the defendants’ liability for interest and therefore was a defense that required disclosure. In the absence of such disclosure, the trial court properly refused to hear the proffered evidence. Instead, it accepted the affidavit as proof of debt pursuant to Practice Book § 527 and rendered a judgment of strict foreclosure.

Furthermore, the trial court correctly refused to allow the defendants to present evidence of the offer of a deed to the bank because it was evidence of an offer of compromise between the parties. Our rules of evidence clearly prohibit the admission of evidence that relates to settlement negotiations. Braun v. Edelstein, 17 Conn. App. 658, 660, 554 A.2d 1102, cert. denied, 211 Conn. 803, 559 A.2d 1136 (1989). The defendants contend that this rule applies only to negotiations going to the issue of liability and not to negotiations going to the amount of the debt. Our determination that the offer of the deed went to liability disposes of this argument.

The defendants’ second claim is that the trial court should have admitted into evidence the full transcript of the earlier hearing that had been aborted and mistried before another judge. Although the parties stipulated to the admission of one page of the prior hearing’s transcript, the defendants argue that the trial court should have allowed them to enter the remainder of the transcript into evidence. We are not persuaded that the transcript of the earlier hearing was relevant to the issue then before the trial court or that the defendants have sustained their burden of proving harm from this alleged evidentiary error. See id.

The judgments are affirmed and the cases are remanded with direction to set new law days.

In this opinion the other judges concurred.

       Appeal 9731 pertains to property at 1051-1055 Farmington Avenue in Farmington. Appeal 9732 pertains to property at 1067 Farmington Avenue.

       “[Practice Book] Sec. 236. disclosure of defense
      “In any action to foreclose or discharge any mortgage or lien or to quiet title, or in any action upon any written contract, in which there is an appearance by an attorney for any defendant, the plaintiff may at any time file and serve in accordance with Sec. 120 a written demand that such attorney present to the court, to become a part of the file in such a case, a writing signed by him stating whether he has reason to believe and does believe that there exists a bona fide defense to the plaintiff’s action and whether such defense will be made, together with a general statement of the nature or substance of such defense. If the defendant fails to disclose a defense within five days of the filing of such demand, the plaintiff may file a written motion that a default be entered against the defendant by reason of the failure of the defendant to disclose a defense. If no disclosure of defense has been filed, the court may order judgment upon default to be entered for the plaintiff at the time the motion is heard or thereafter, provided that in either event a separate motion for such judgment has been filed. The motion for default and for judgment upon default may be served and filed simultaneously but shall be separate motions.”

       “[Practice Book] Sec. 527. —proof of debt
      “In any action to foreclose a mortgage where no defense as to the amount of the mortgage debt is interposed, such debt may be proved by presenting to the court the original note and mortgage, together with the affidavit of the plaintiff or other person familiar with the indebtedness, stating what amount, including interest to the date of the hearing, is due, and that there is no setoff or counterclaim thereto.”

       “[Practice Book] Sec. 367. —notice of defenses
      “In any hearing in damages upon default suffered or after a denial of a motion to strike, the defendant shall not be permitted to offer evidence to contradict any allegations in the plaintiff’s complaint, except such as relate to the amount of damages, unless he has given notice to the plaintiff of his intention to contradict such allegations and of the subject matter which he intends to contradict, nor shall the defendant be permitted to deny the right of the plaintiff to maintain such action, nor shall he be permitted to prove any matter of defense, unless he has given written notice to the plaintiff of his intention to deny such right or to prove such matter of defense.” (Emphasis added.)
      “[Practice Book] Sec. 372. —amending notice
      “The court may, for cause shown, and upon such terms as it may impose, permit such notice to be filed or amended at any time.”
      “[Practice Book] Sec. 374. —evidence to reduce damages
      “The defendant may, without notice, offer evidence to reduce the amount of damages claimed.”


source: Caselaw Access Project

author: Foti, J.

license: Public Domain

text:
    Leo J. Archambault et al. v. James W. Wadlow et al.
    (9584)
    Daly, Foti and Landau, Js.
    Argued April 23
    decision released August 6, 1991

      Ramona DeSalvo Dittman, for the appellants (named defendant et al.).

      William C. Kollman II, for the appellee (plaintiffs).
   Foti, J.

The defendant Waterford zoning board of appeals (board) denied the plaintiff landowners’ application for a variance from the setback requirements of the Waterford zoning regulations. The trial court sustained the plaintiffs’ appeal and, upon certification from this court, the board appealed.

The salient facts are as follows. The plaintiffs, Leo J. and Mary J. Arehambault, purchased the subject parcel of land by deed in 1968. At the same time, the plaintiffs also purchased a thirty-two acre parcel contiguous to the subject lot. The subject lot, which was created as a distinct parcel in 1929, had an area of 7500 square feet at the time of purchase. In 1954, the town of Waterford enacted zoning regulations that established the location as an R-20 residential zone. The regulations required that each lot have a minimum area of 20,000 square feet.

The plaintiffs subsequently subdivided and developed the contiguous thirty-two acres. In doing so, the plaintiffs used a lot adjacent to the subject lot to build a road, known as Country Club Drive. The construction of this road left an excess area of 750 square feet. This footage was added to the subject lot, increasing its area to approximately 8250 square feet. The construction of Country Club Drive also made the subject lot a corner lot. Under the Waterford zoning regulations, corner lots are subject to stricter setback requirements. The plaintiffs applied to the board claiming first that the subject lot was entitled to a building permit as a preexisting nonconforming lot. In the alternative, the plaintiffs sought a variance to enable them to build a single-family home with a six foot setback rather than a fifty foot setback as required by the Waterford zoning regulations.

The trial court sustained the plaintiffs’ appeal from the denial of the variance. The trial court found that the record did not reasonably support the board’s decision because the board had misapplied the law regarding hardship and nonconformance. The court further held that the denial of the variance constituted a confiscation of the plaintiffs’ property because the only permitted use for the property was the construction of a single-family home.

The court found that the plaintiffs’ hardship was not self-created. Rather, the genesis of the plaintiffs’ hardship was the imposition of the 1954 zoning regulations. The court also found the subject lot to be a preexisting nonconforming lot because the parcel predates the zoning regulations. The construction of Country Club Drive, which caused the parcel to become a corner lot, did not transform the lot from a preexisting nonconforming lot. Nor was its character changed by the addition of 750 square feet to the lot. Finally, the court reasoned that safety and aesthetic concerns do not justify a restriction on the use of land which amounts to a confiscation. For these reasons, the trial court held that the board’s denial was illegal, arbitrary and an abuse of discretion.

On appeal, the board claims that the trial court improperly determined (1) that the landowners’ hardship was not self-created, (2) that the lot was protected as a preexisting nonconforming lot, and (3) that the board’s decision to deny the variance was not reasonably supported by the record. We affirm the judgment of the trial court.

I

We first address the board’s claim regarding hardship. Waterford zoning regulation § 24-3-2 provides that if a landowner owns contiguous lots, one of which is nonconforming, the land is considered an undivided parcel for the purposes of the regulation. The board maintains that this regulation required the plaintiffs to merge the undersized lot with their contiguous property in order to bring the lot to conformity. The board argues that the plaintiffs’ failure to combine the properties when planning the subdivision resulted in the present hardship.

We do not reach the merits of this claim, however, because the board failed to raise the issue of merger at either its hearing or the hearing before the trial court. Under Practice Book § 285A, “[t]his court is not bound to consider claims of law not raised at trial.” Northeast Electrical Contractors v. Udolf, 1 Conn. App. 169, 171, 469 A.2d 419 (1984); see also Bigionti v. Argraves, 152 Conn. 700, 701, 204 A.2d 408 (1964). The function of an appellate court is to review a case on the theory on which it was tried and decided in the trial court. Lashgari v. Lashgari, 197 Conn. 189, 196, 496 A.2d 491 (1985). Therefore, the board cannot raise the question of merger for the first time on appeal. Although we have the power to notice plain error under Practice Book § 4185, we generally exercise our discretion only when a constitutional right or an important general interest is at issue. Texaco, Inc. v. Golart, 206 Conn. 454, 460, 538 A.2d 1017 (1988). The plain error doctrine is to be narrowly applied. Aksomitas v. Aksomitas, 205 Conn. 93, 97, 529 A.2d 1314 (1987). The nature of the board’s claim of merger does not warrant the exercise of our discretion under the plain error doctrine. Thus, we decline to entertain the claim.

II

The board’s second claim is that the trial court mistakenly found that the parcel was entitled to protection as a preexisting nonconforming lot. The board’s argument in this regard is two-pronged. First, the board claims that under Waterford zoning regulation § 24-3-2 providing for merger, the subject parcel merged with the contiguous property held by the plaintiffs and thus lost its character as a legal nonconforming lot. Again, because the board did not raise the issue of merger at any time during the proceedings in the trial court, we will not consider it.

Second, the board asserts that General Statutes § 8-2 protects only uses, buildings and structures and does not apply to vacant lots. Section 8-2 provides that local regulations “shall not prohibit the continuance of any nonconforming use, building or structure existing at the time of the adoption of such regulations.” It is true that to qualify as a legal nonconforming use under § 8-2, the use must be actual and not simply contemplated. Lebanon v. Woods, 153 Conn. 182, 197, 215 A.2d 112 (1965). The board fails to recognize, however, that Waterford zoning regulation § 24.3 protects preexisting nonconforming lots, as well as uses. Section 24.3 defines a nonconforming lot as “a lot which had a separate existence prior to the enactment of th[e] zoning regulations . . . .’’The subject lot was created as a distinct, separate parcel in 1929, long before the enactment of the zoning regulations. Therefore, it is entitled to protection as a legal preexisting nonconforming lot under the local ordinance, and the board’s second claim is without merit.

Ill

The board’s final claim is that the trial court was mistaken in finding that the record did not reasonably support its action.

The board’s stated reasons for refusing to grant a variance were (1) that the plaintiffs’ hardship was self-created, (2) that the subject parcel was not the same preexisting nonconforming lot, (3) that the setback requirements increased when the parcel became a corner lot, (4) that the proposed structure’s proximity to the road would pose a safety hazard, and (5) that the proposed structure would adversely impact the character of the neighborhood.

In reviewing a zoning board’s decision, the trial court must determine “whether the reasons assigned are reasonably supported by the record and whether they are pertinent to the considerations which the commission is required to apply under the zoning regulations.” Zieky v. Town Plan & Zoning Commission, 151 Conn. 265, 267-68, 196 A.2d 758 (1963). The trial court may reverse the board’s decision if the court finds that the board’s action was illegal, arbitrary or an abuse of discretion. Cameo Park Homes, Inc. v. Planning & Zoning Commission, 150 Conn. 672, 677, 192 A.2d 886 (1963).

The trial court found that the record did not support the board’s decision to deny the variance for two reasons. First, the court found that the board misapplied the law in determining that the plaintiffs’ hardship was self-created and that the parcel was no longer a preexisting nonconforming lot. Second, the court held that the board’s refusal to grant a variance constituted a practical confiscation of the plaintiffs’ land.

We first address the board’s first three reasons for denying the plaintiffs’ application. Regarding hardship, under General Statutes § 8-6 (3), a local zoning board may grant a variance where two basic conditions are met: “(1) the variance is shown not to affect substantially the comprehesive zoning plan, and (2) adherence to the strict letter of the zoning regulation is shown to cause unusual hardship unnecessary to the carrying out of the general purpose of the zoning plan.” Adolphson v. Zoning Board of Appeals, 205 Conn. 703, 709, 535 A.2d 799 (1988); Smith v. Zoning Board of Appeals, 174 Conn. 323, 326, 387 A.2d 542 (1978). If, however, the hardship arises from a voluntary act on the part of the applicant, the board does not have the authority to grant a variance. Pollard v. Zoning Board of Appeals, 186 Conn. 32, 39, 438 A.2d 1186 (1982); Belknap v. Zoning Board of Appeals, 155 Conn. 380, 384, 232 A.2d 922 (1967). The board is under no duty to extricate an applicant from a self-created hardship. Pollard v. Zoning Board of Appeals, supra, 44. “The hardship which justifies a board of zoning appeals in granting a variance must be one that originates in the zoning ordinance . . . and arises directly out of the application of the ordinance to circumstances or conditions beyond the control of the party involved.” (Citations omitted.) Id., 39-40.

The subject lot has existed as a distinct lot since its creation in 1929. It has been nonconforming in size since the enactment of the zoning regulations in 1954. “Where a nonconformity exists, it is a vested right which adheres to the land itself.” Petruzzi v. Zoning Board of Appeals, 176 Conn. 479, 483, 408 A.2d 243 (1979). The right to seek a variance is not extinguished by the arrival of a new owner. See Johnny Cake, Inc. v. Zoning Board of Appeals, 180 Conn. 296, 300-301, 429 A.2d 883 (1980). Here, the plaintiffs did not create the nonconformity, but, rather, the nonconformity arose with the enactment of the zoning regulations. Thus, the plaintiffs did not create their own hardship.

As previously discussed, the subject lot is a preexisting nonconforming lot under the Waterford zoning regulations. The parcel’s increase in size did not change its status as a preexisting nonconforming lot. If anything, this additional footage brought the lot closer to conformity with the regulations. The construction of Country Club Drive, which made it a corner lot, did not transform it from a legal nonconformance either. Thus, the board’s first, second, and third reasons are unsupported. We now turn to reasons four and five.

Zoning regulations that reasonably promote public health, safety and welfare are constitutional, even when they impinge on the rights of property owners. Poneleit v. Dudas, 141 Conn. 413, 417-18, 106 A.2d 479 (1954). Nevertheless, “an ordinance which permanently restricts the use of property for any reasonable purpose goes beyond permissible regulation and amounts to a taking.” Brecciaroli v. Commissioner of Environmental Protection, 168 Conn. 349, 355, 362 A.2d 948 (1975). A practical confiscation occurs when an ordinance so limits the use of land that it cannot be utilized for any permitted purpose without a variance. Chevron Oil Co. v. Zoning Board of Appeals, 170 Conn. 146, 152, 365 A.2d 387 (1976). In determining whether a zoning regulation is unreasonable and confiscatory as to a piece of property, the court must consider the facts and circumstances of each individual case. Troiano v. Zoning Commission, 155 Conn. 265, 269, 231 A.2d 536 (1967). Namely, the court should examine the diminution in the value of the land, the nature and degree of public harm to be prevented, and the alternatives available to the landowner. Brecciaroli v. Commissioner of Environmental Protection, supra, 356.

Here, the board asserts that the proposed structure would create a safety hazard and would adversely impact the character of the neighborhood. These concerns, however, are outweighed by the fact that the board’s denial of a variance constitutes a practical confiscation. The R-20 residential zone at issue permits the construction of single-family homes only. As the trial court pointed out, the record does not indicate any reasonable use for the land other than for the construction of a single-family home. Thus, without a variance from the setback requirements enabling the plaintiffs to build the dwelling, the value of the plaintiffs’ land is significantly diminished. Because there are no alternative uses for the plaintiffs’ property, the board’s action amounts to a practical confiscation. See Chevron Oil Co. v. Zoning Board of Appeals, supra. For these reasons, the trial court properly held that the board’s decision was illegal, arbitrary and an abuse of discretion.

The judgment is affirmed.

In this opinion the other judges concurred.

       Originally named as defendants in this case were James W. Wadlow, chairman of the Waterford zoning board of appeals; Calvin K. Brouwer, Waterford town clerk; and the Waterford zoning board of appeals. Calvin K. Brouwer has not appealed. For purposes of this opinion, we will refer to the defendants as “the board.”

       Practice Book § 285A provides in relevant part: “If a party intends to raise any claim of law which may be the subject of an appeal, he must either state the same distinctly to the court before his argument is closed or state it in a written trial brief. If this is not done, it will not be the duty of either the trial court or the appellate court to decide the claim.”

       Although the board based its decision in part upon safety and aesthetic concerns, there is a paucity of evidence in the record regarding these issues.


author: Lavery, J.

text:
    State of Connecticut v. Randy Cayouette
    (9101)
    Dupont, C. J., Norcott and Lavery, Js.
    Argued April 24
    decision released August 6, 1991

      Thomas Ullman, assistant public defender, with whom, on the brief, was Beth A. Merkin, assistant public defender, for the appellant (defendant).

      Jack Fischer, deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and David P. Gold, supervisory assistant state’s attorney, for the appellee (state).
   Lavery, J.

The jury could have reasonably found the following facts. The incident took place on June 17,1988. Approximately two months before, the victim had been evicted from her apartment. The defendant offered to let the victim move into his apartment. At that time, the defendant and the victim were mere acquaintances.

Once the victim moved in, she and the defendant slept in separate rooms in the apartment. She did the laundry for both of them, and they shared the cooking and food shopping responsibilities, although the two ate together only twice in the two month period. The victim did not pay the defendant any rent. The victim denied ever having had sexual relations with the defendant prior to the sexual assault that occurred on June 17, 1988.

On the evening of June 16, 1988, the victim, the defendant and several friends were at the defendant’s apartment drinking and socializing. Eventually, all but one of the friends left the apartment and the defendant went to bed, leaving the victim and the guest on the porch talking. Not long thereafter, the guest left and the victim went into the apartment. Seeing the defendant asleep on the couch, the victim went to the bedroom and fell asleep on the bed.

After she was asleep, the defendant entered the bedroom and woke her up, telling her that one of their friends had broken into the house, had threatened him with a weapon, and was now hiding in the bedroom closet. The victim told him that he was crazy and was lying because there was no one there. The defendant then returned to the living room and the victim went back to sleep.

Later, the defendant entered the bedroom, this time waking the victim by pulling on her arms, and again asserting that one of their friends was in the closet. An argument between the defendant and the victim ensued, and the defendant “went crazy.” The defendant dragged the victim by her arms off the bed and onto the floor. The victim was screaming and struggling but was unable to escape. Holding the victim’s wrists over her head with one hand, the defendant proceeded to punch her three or four times in the jaw with his other hand. The defendant then removed the victim’s shorts and underwear and sexually assaulted her.

Shortly thereafter, the defendant told the victim to “call the cops and get me arrested.” The victim told the defendant that she would not have him arrested, but that he should call an ambulance. The defendant called for an ambulance at 4:41 a.m., telling the dispatcher that the victim had fallen.

Ambulance personnel arrived at 4:51 a.m. James O’Connell, a paramedic, who first arrived at the scene, testified that the victim appeared to be “pensive, apprehensive, scared and timid,” and that she told him that she had been sexually assaulted.

After the ambulance arrived, a Meriden police officer, Richard Gilgosky, arrived on the scene. Gilgosky testified that he found the victim on the floor with a great deal of blood on her face, and that she also told him that she had been raped by the defendant. Shortly thereafter, Lieutenant Lee Van Hennick, of the Meriden police department, arrived and found the victim still lying on the floor in what he characterized as “a kind of catatonic state.” When Van Hennick asked the victim what had happened, she told him that she had been raped by the defendant. The ambulance left the scene at 5:10 a.m., transporting the victim to a hospital emergency room where she was treated for her injuries, which included a broken jaw.

At trial, O’Connell, Gilgosky and Van Hennick were allowed to testify despite defense counsel’s hearsay objections. The trial court based its decision to allow the testimony on both the spontaneous utterance exception to the hearsay rule and the constancy of accusation exception to the hearsay rule.

We affirm the judgment of the trial court.

I

The Hearsay Objection

In Perry v. Haritos, 100 Conn. 476, 124 A. 44 (1924), our Supreme Court recognized the spontaneous utterance exception to the hearsay rule. This exception allows otherwise inadmissible statements into evidence to prove the truth of the matter asserted if it is proven that (1) the declaration follows some startling occurrence, (2) the declaration refers to the occurrence, (3) the declarant observed the occurrence, and (4) the declaration is made under circumstances that negate the opportunity for deliberation and fabrication by the declarant. State v. Stange, 212 Conn. 612, 616-17, 563 A.2d 681 (1989); Perry v. Haritos, supra, 484.

As a preliminary matter, the trial judge must determine whether an utterance qualifies under this exception to the hearsay rule, and that decision will not be disturbed on appeal unless it constitutes an unreasonable exercise of discretion. State v. Stange, supra; State v. Chesney, 166 Conn. 630, 638, 353 A.2d 783, cert. denied, 419 U.S. 1004, 95 S. Ct. 324, 42 L. Ed. 2d 280 (1974); Perry v. Haritos, supra.

On appeal, the defendant concedes that the declarant’s statements followed a startling occurrence, were made with reference to the occurrence, and that the declarant observed the occurrence. Nevertheless, the defendant argues that the statements were not made under circumstances that negate the opportunity for deliberation and fabrication by the victim.

Our review of the record reveals that at 4:41 a.m., just minutes after he had beaten and raped the victim, the defendant called for an ambulance. All three of the victim’s statements were made prior to 5:10 a.m., when the ambulance transported the victim to the hospital emergency room. All three statements were made within thirty minutes of the call for an ambulance, which itself was made only a few minutes after the incident occurred. While the short time between the incident and the statement is important, it is not dis-positive. State v. Stange, supra, 618; Perry v. Haritos, supra. All material facts should be weighed by the trial judge when determining whether a statement qualifies as a spontaneous utterance. State v. Stange, supra; Perry v. Haritos, supra.

In this case, other facts indicate that the statements were made by the victim without an opportunity for deliberation or fabrication. O’Connell testified that the victim was “pensive, apprehensive, scared and timid.” Gilgosky found the victim on the floor with a great deal of blood on her face. Van Hennick found the victim “in a kind of catatonic state” when he arrived. These facts indicate that the victim was affected by the lingering effects of the attack by the defendant, and that these effects rendered her unable to reflect in order to fabricate what took place. The fact that the statements made by the victim were in response to questions from emergency personnel and police does not defeat their spontaneity. State v. Stange, supra, 619-20. The decision by the trial judge to allow the testimony of these three witnesses under the spontaneous utterance exception to the hearsay rule was not an unreasonable exercise of discretion and was properly admitted.

In addition, the disputed testimony was allowed under the constancy of accusation exception to the hearsay rule. This exception allows witnesses to testify to the out-of-court statements of a sexual assault victim to corroborate and accredit the victim’s testimony at trial. State v. Rodgers, 207 Conn. 646, 649, 542 A.2d 1136 (1988); see also State v. Dabkowski, 199 Conn. 193, 199, 506 A.2d 118 (1986); State v. Segerberg, 131 Conn. 546, 548-49, 41 A.2d 101 (1945); State v. Bethea, 24 Conn. App. 13, 585 A.2d 1235 (1991). The testimony was properly allowed on this basis as well because the court gave limiting instructions to the jury on constancy of accusation advising them that the testimony was to be used only to corroborate and accredit the victim’s testimony, not to prove the truth of the matter asserted.

II

The Cohabitation Charge

The defendant objects to the trial judge’s charge on his affirmative defense of cohabitation under General Statutes § 53a-67 (b). Before reaching the defendant’s claims, we must first address the state’s assertion that this issue was not properly preserved at trial. We do not agree with the state’s contention.

In compliance with Practice Book § 852, the defendant filed a request to charge with the court, prior to the rendition of the jury charge. In addition, the defendant raised a timely objection to the charge on cohabitation after it was rendered. Thereafter, the court rendered an additional amended charge to the jury on cohabitation. The defendant did not object or take an exception to this second charge.

Practice Book § 852 provides in pertinent part: “The supreme court shall not be bound to consider error as to the giving of, or the failure to give, an instruction unless the matter is covered by a written request to charge or exception has been taken by the party appealing immediately after the charge is delivered.” (Emphasis added.) Although the defendant failed to object to the second jury charge on the issue of cohabitation, the fact that he complied with the requirements of the rule of practice, by properly filing a request to charge with the court, preserved the issue for appeal.

The defendant first asserts that the court’s charge relating to the definition of cohabitation was improper in that it was more demanding than the law requires. We conclude that the charge was proper.

The trial court’s charge defined cohabitation as “involving a relationship of husband and wife, although [the victim and the defendant] are not legally married.” The court went on to instruct that a mutual assumption of marital rights, duties and obligations that are usually manifested by married people is necessary for cohabitation. In addition, the trial court’s charge required both an “acknowledgment and recognition” by the parties that their relationship was equivalent to marriage. This charge is consistent with the well settled principle that agreement is necessary for a cohabitation relationship to exist. State v. Arroyo, 181 Conn. 426, 432-33, 453 A.2d 967 (1980). The defendant also maintains that the charge on cohabitation unduly focused on the time requirement of the affirmative defense.

It is well settled that when reviewing a jury charge we must consider the charge as a whole and not critically dissect the charge. State v. Taylor, 196 Conn. 225, 492 A.2d 155 (1985); State v. Reed, 174 Conn. 287, 386 A.2d 243 (1978). In the case before us, the trial court first read the statutory provision regarding the affirmative defense of cohabitation to the jury. The court then explained that the key time at issue was that of the alleged assault, and that, if the jury found that the cohabitation relationship had terminated prior to the alleged assault, the defendant would not have met his burden of proving the affirmative defense of cohabitation. By way of this explanation, the trial court properly set forth the statutory requirements for the affirmative defense, including the necessity of cohabitation at the time of the sexual assault, in order to emphasize the importance of the time element to the jury. State v. Cazimovsky, 20 Conn. App. 190, 192, 565 A.2d 254 (1989). Considering the charge on cohabitation as a whole, we find that it properly defines this affirmative defense in a sexual assault case.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1987) § 53a-67 (b) provides: “In any prosecution for an offense under this part, except an offense under section 53a-70b, it shall be an affirmative defense that the defendant and the alleged victim were, at the time of the alleged offense, living together by mutual consent in a relationship of cohabitation, regardless of the legal status of their relationship.”
      General Statutes § 53a-67 (b) was revised in 1990 by Public Acts 1990, No. 90-162.

       After the defendant’s counsel objected to the first cohabitation charge, the trial judge charged the jury again as follows: “The defendant has the burden of proving by a fair preponderance of the evidence that the defendant and the victim, this is if you get to that issue of the affirmative defense, proving at the time of the offense they were living together by mutual consent in a relationship of cohabitation. The law does not make this defense available to all persons just because they happen to be living together. Rather, as I’ve stated, the statute requires that the parties must live together by mutual consent in a relationship of cohabitation.
      “In other words, living together is not sufficient. The parties must be cohabitating. Cohabitation is defined in our law as involving a relationship of husband and wife, although they are not legally married. This relationship of living together as husband and wife includes all of the many facets of married life in addition to sexual relations. The defendant must prove by a fair preponderance of the evidence that there was a mutual assumption of these marital rights, duties and obligations which are usually manifested by married people. In order for him to meet his burden of proof.
      “As you recall there was a conflict in the testimony between the defendant and [the victim] as with respect to their mutual sexual relations and other details of their living together. Even if you find that the parties had previously engaged in consensual sexual intercourse you need not find that a cohabitating relationship has been proven. Evidence of intercourse alone does not prove a cohabitating relationship. Rather as I have said cohabitation requires both an acknowledgment and recognition by the parties that their relationship is that of the nature of a husband and wife.
      “Moreover, you may consider evidence not only that the parties are living together but also any evidence that may have been offered bearing on the reputation amongst their friends and the community in general that these two were living together as man and wife even though they weren’t legally married. Those are the issues that you should consider in determining whether the cohabitation has been proven.
      “Please remember that the time at issue here concerning the status of their relationship is the day of the alleged assault. If you happen to find at an earlier point in their relationship that they were cohabitating as I’ve supplied it to you but for whatever other reason that cohabitation relationship had terminated prior to the day of the alleged incident on June 16, then the defendant would not have met his burden of proof of proving that on that day they were engaged in a relationship of cohabitation.”

       A similar charge is found in D. Wright, Connecticut Jury Instructions (2d Ed.) § 736i, which provides the following definition of cohabitation. “Cohabitation means actually living together as husband and wife, acknowledgment and recognition of each other as husband and wife to friends and acquaintances and the public as such, and enjoying the general reputation of being married and living together as husband and wife.”


text:
    Barberino Realty and Development Corporation v. Planning and Zoning Commission of the Town of Farmington et al.
    (9067)
    Spallone, Daly and La very, Js.

      Argued March 26
    decision released August 6, 1991

      Robert J. Reeve, with whom, on the brief, was William L. Wollenberg, for the appellant (plaintiff).

      Joseph L. Hammer, with whom were Palmer S. McGee, Jr., and, on the brief, Susan J. Barnes, for the appellees (defendants).
   Lavery, J.

The plaintiff (Barberino) appeals from the decision of the trial court affirming the denial of its site plan application by the planning and zoning commission of Farmington (commission).

In its statement of issues on appeal, Barberino raises five claims. Pursuant to Practice Book § 4013, the commission filed a counterstatement of issues giving five reasons why the trial court’s judgment should be upheld, including alternate grounds on which we may sustain that judgment.

The statement of issues and counterstatement of issues present two questions dispositive of this appeal. First, whether Barberino’s application was for approval of a revised site plan only, or whether it was an application for a revised special permit and revised site plan approval combined. Second, whether the reasons articulated by the commission for its denial of the application were based on standards found within the Farmington zoning regulations. We disagree with the trial court’s finding that under the applicable zoning regulations the reasons articulated by the commission provided an appropriate basis for denying the plaintiff’s application for site plan approval.

The relevant facts are as follows. Barberino owns 9.699 acres bordering Main and Tunxis Streets in Farmington. In 1978, the commission granted Barberino a special permit to construct seventy units of elderly housing on 8.3 acres of the site. Elderly housing is a permitted use in Farmington upon the issuance of a special permit. The approved special permit allowed the construction of ten scattered small scale buildings on the subject property. As one of the conditions of approval, Barberino was required to relocate the entrance to the development from its proposed location at the dead end of Tunxis Street to a point closer to the intersection of Tunxis and Main Streets. A neighboring property owner appealed from the commission’s decision to grant the special permit. That appeal was subsequently dismissed by the Superior Court. Kagan v. Planning & Zoning Commission, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 148268 (November 21, 1980). Barberino never constructed the project as designed and approved in 1978.

In 1988, Barberino filed a new application with the commission for site plan approval to construct a single building containing seventy units of elderly housing and for approval of a subdivision of the property into three lots; two lots for single-family residences and one lot consisting of 8.55 acres for the development of the seventy units of elderly housing. Timely legal notices were published in the Farmington News noticing a public hearing at which the commission would consider an application for a “3 lot subdivision of 9.699 acres and site plan approval for 70 units of elderly housing . . . .” (Emphasis added.)

At the hearing held on December 12,1988, the commission denied both applications stating the grounds for their denial as follows: “VOTED: to deny without prejudice the Barberino Realty & Development, Inc. revised site plan for 70 units of elderly housing and subdivision plan for Lot 1 Main and Tunxis Streets.

“Members felt that this revision was not in keeping with the scale of adjacent homes; that the development of the western portion of the parcel was too intense; and the proposed driveway from Tunxis Street was located too close to the adjacent property. It was further recommended that the project be divided into two buildings and that the two proposed lots along Tunxis Street be combined into one.”

The plaintiff appealed both decisions to the Superior Court. The trial court sustained the commission’s denial of the revised site plan application and reversed the decision of the commission denying the subdivision application. The court found that the record did not support two of the commission’s stated reasons for the denial of the site plan application, in that “the scale of the adjacent homes” and the “intensity of the development” were not criteria found within the Farming-ton regulations governing site plan approval. The court did, however, find that the commission’s third stated reason for denying the application, namely, that the proposed driveway was located too close to the adjacent property, was proper under the regulations and was supported by the record. In its postjudgment articulation, the trial court indicated that the proposed driveway entrance violated Article IV, § 12 (B) (2) and (3) of the town’s regulations. Barberino appealed from the trial court’s affirmation of the denial of the site plan application and we granted certification.

Resolution of this appeal requires that we first review the differences between a “special permit” and a “site plan.” A special permit authorizes a use permitted by the zoning regulations subject to the applicant’s meeting the standards set forth in those regulations. W A T R, Inc. v. Zoning Board of Appeals, 158 Conn. 196, 200, 257 A.2d 818 (1969). When deciding whether the granting of a special permit is appropriate, the agency must determine whether (1) the applicant’s proposed use is permitted under the regulations, (2) the standards and the relevant zoning regulations are satisfied, and (3) the conditions necessary to protect public health, safety, convenience and property values can be established. See General Statutes § 8-2.

By contrast, we have determined that the term “ ‘site plan’ ” as it is used in General Statutes § 8-3 (g) is “a general term which is used in a functional sense to denote a plan for the proposed use of a particular site, purporting to indicate all the information required by the regulations for that use. As such, it includes the entire package of documents submitted to a zoning ‘commission or other municipal agency or official to aid in determining the conformity of a proposed building, use or structure with specific provisions of such [zoning] regulations.” SSM Associates Limited Partership v. Plan & Zoning Commission, 15 Conn. App. 561, 566, 545 A.2d 602 (1988), aff'd, 211 Conn. 331, 559 A.2d 196 (1989).

When an agency undertakes consideration of a site plan application, it has no independent discretion beyond determining whether the plan complies with the site plan regulations and applicable zoning regulations incorporated into the site plan regulations by reference. Allied Plywood Inc. v. Planning & Zoning Commission, 2 Conn. App. 506, 512, 480 A.2d 584, cert. denied, 194 Conn. 808, 483 A.2d 612 (1984). Under General Statutes § 8-3 (g), “[a] site plan may be modified or denied only if it fails to comply with requirements already set forth in the regulations.”

The commission argues that the 1978 special permit was tailored to and based on the site plan submitted at that time, and, therefore, the submission of a radically different site plan in 1988 required a determination of whether the revised site plan continued to fulfill the requirements for an elderly housing special permit. The commission’s appellate arguments indicate a total lapse of memory in its actions on the Barberino application and at the subsequent hearing.

It is undisputed that the application form filed by Barberino was for a site plan approval, and that the published legal notices for the public hearing stated that the hearing was for site plan approval. Nowhere in the record is there any legal document or published notice indicating that “a revised special permit” was sought. The commission accepted a site plan application, did not require a special permit application and noticed a site plan application hearing. The commission never questioned the proposed use of the property and, in fact, when the denial of the site plan application was published, the commission recommended that “the project be divided into two buildings rather than the one proposed.”

In 1978, the application for a special permit and site plan approval for the seventy units of senior housing in ten buildings was approved by the commission with the sole condition being a relocation of the development entrance closer to Main Street. In its 1988 application for site plan approval, Barberino did not seek to change the use of the property, but sought only to have the seventy units consolidated into one building instead of ten. The application, all legal notices, and the commission’s written denial, all treated the application as one for site plan approval. In addition, a review of the transcripts of the commission’s hearings on the application discloses that the commission affirmed the fact that the special permit issued in 1978 was still in effect and that the application before the commission was for site plan approval.

On the basis of the history of this case and the way the applications were treated by the commission and Barberino, we conclude that the submissions to the commission constituted a revised site plan rather than a new application for a special permit and site plan. Neither Barberino nor the commission complied with the application and hearing procedures required for a special permit.

Finally, in dismissing Barberino’s appeal, the trial court found that the commission’s stated reason, namely that the proposed driveway is too close to the adjacent property, finds a basis in the regulations and support in the record. In its memorandum of decision, the court stated that the site plan violated article IY, § 12 (B) (2) and (3) of the regulations. Section 12 (B) is titled “Standards for Granting of a Change of Zone or Special Permit.” (Emphasis added.)

Because § 12 (B) (2) and (3) refer not to site plans but to the standards that must be met when a special permit is approved, we disagree with the trial court. Subsections (2) and (3) of § 12 (B) set forth standards that must be met by the applicant and allow conditions that an agency may set when approving a special permit. In 1978, the commission set a condition in conformity with its special permit standards when it required the relocation of the driveway closer to the Main Street end of Tunxis Street. The commission’s stated reasons for denial provided no guidance as to the manner in which the plan failed to meet the regulations and did not refer to § 12 (B) (2) and (3) in its decision.

Our Supreme Court has held that regulations that contain only “broad legislative statement[s] of purpose comparable to that found in § 8-2 of the General Statutes”; Kosinski v. Lawlor, 177 Conn. 420, 423, 418 A.2d 66 (1979); provide no standards for review in approving or denying site plans, and as such may be used “only in conjunction with and not as an alternative to the standards contained in the applicable zoning regulations.” Id. The regulations that are the basis of the trial court’s decision, article IV, § 12 (B) (2) and (3), contain the same infirmity. Those regulations require that the commission take “adequate safeguards” for the protection of other properties and provide for “adequate” traffic circulation and parking. The regulations provide no ascertainable standards for the regulation of the plaintiff’s application, and indeed specific regulatory standards are found elsewhere in the zoning regulations and are complied with.

Finally, the commission urges us to affirm the judgment of the trial court on the alternate grounds for denial stated by the commission that the trial court did not find persuasive, namely (1) that the development of the western portion of the parcel was too intense, and (2) that the revision was not in keeping with the scale of the adjacent houses. The commission’s argument on this issue fails as well because these criteria for denial of the application state general standards for consideration in the issuance of a special permit and are not site plan regulations stated with sufficient specificity like setbacks, coverage restrictions, and height restrictions that are found in the regulations and can be included in a site plan. SSM Associates Limited Partnership v. Plan & Zoning Commission, supra.

We disagree and conclude as a matter of law that Barberino’s application was one for a revised site plan only and that the reasons given by the commission and the trial court were not found in either the site plan regulations or in the zoning regulations.

The judgment is reversed and the case is remanded with direction to render judgment for the plaintiff ordering the commission to approve the site plan application.

In this opinion the other judges concurred.

       The Farmington Zoning Regulations, as amended to March 23, 1987, § 12 provides in pertinent part: “SPECIAL PERMITS. INTENT AND APPLICATION REQUIREMENTS . . .
      “B. Standards for Granting of a Change of Zone or Special Permit . . .
      “2. That adequate safeguards have been taken to protect adjacent property and the neighborhood in general from detriment;
      “3. That traffic circulation within the site and the amount, location, and access to parking is adequate . . . .”

       The following discussion took place between the commission chairman (Goodridge), the town planner (Ollendorf) and the plaintiff’s representative (Donald) at the public hearing held on December 5, 1988.
      “[Goodridge]: Jeff, I think my question should be directed to you. This is site plan and a subdivision. Mr. Donald, made reference to a special permit in 1978. That’s still in effect? That last forever?
      “[Ollendorf]: Yes. The special permit is in effect. Unless our regulations stipulate otherwise, yes.

      “[Goodridge]: I guess I’m a little confused. They’ve got 9.6 acres and it’s R20 and they’re asking for what I understand will be seventy-two. There’d be seventy dwellings in this housing for the elderly plus two houses on regular lots.
      “[Donald]: You know that the two lots are for single-family use.
      “[Goodridge]: Right, but we’ve got 9.6 acres and seventy-two dwelling units.
      “[Donald]: Theoretically it could be ninety-six, but the special permit was issued for seventy units.
      “[Goodridge]: How could it be theoretically be ninety-six, that’s what my confusion is?

        “[Donald]: Ten units per acre.
      “[Goodridge]: Ten units. For an R20?
      “[Donald]: For elderly, a special permit, for elderly in any zone.

      “[Goodridge]: You’ve got a special permit for the elderly?

      “[Ollendorf]: Yes.

      “[Goodridge]: Ah, I understand. And this was granted in 1978?

      “[Donald]: Yes. And upheld on appeal in 1980.” (Emphasis added.)


text:
    Martin Frimberger v. Dolinka Anzellotti
    (9087)
    Norcott, Lavery and Landau, Js.
    Submitted on briefs January 7
    decision released August 6, 1991

      Duane Totten, for the appellant (defendant).

      Richard Paladino, for the appellee (plaintiff).
   Lavery, J.

The defendant appeals from the judgment of the trial court awarding the plaintiff damages for breach of the warranty against encumbrances and innocent misrepresentation of real property that the defendant conveyed to the plaintiff by warranty deed.

The defendant claims that the court was incorrect (1) in finding that she had misrepresented the property and that the plaintiff had relied on that misrepresentation to his detriment, (2) in finding that she breached the warranty deed covenant against encumbrances, and (3) in awarding damages for diminution of value to the property caused by a wetlands violation as well as damages for costs of correcting that violation. We agree with the defendant and reverse the decision of the trial court.

The record and memorandum of decision disclose the following facts. In 1978, the defendant’s brother and predecessor in title, Paul DiLoreto, subdivided a parcel of land located in Old Saybrook for the purpose of constructing residences on each of the two resulting parcels. The property abuts a tidal marshland and is, therefore, subject to the provisions of General Statutes § 22a-28 et seq.

DiLoreto built a bulkhead and filled that portion of the subject parcel immediately adjacent to the wetlands area, and then proceeded with the construction of a dwelling on the property. On February 21, 1984, DiLoreto transferred the subject property to the defendant by quit claim deed. On December 31,1985, the defendant conveyed the property to the plaintiff by warranty deed, free and clear of all encumbrances but subject to all building, building line and zoning restrictions as well as easements and restrictions of record.

During the summer of 1986, the plaintiff decided to perform repairs on the bulkhead and the filled area of the property. The plaintiff engaged an engineering firm which wrote to the state department of environmental protection (DEP) requesting a survey of the tidal wetlands on the property. On March 14, 1986, working with the plaintiffs engineers, the DEP placed stakes on the wetlands boundary and noted that there was a tidal wetlands violation on the property. In a letter to the plaintiff dated April 10,1986, the DEP confirmed its findings and indicated that in order to establish the tidal wetlands boundary, as staked for regulatory purposes, the plaintiff must provide DEP with an A-2 survey of the property. At some point after April, 1986, and before March, 1988, the plaintiff engaged a second group of engineers who met with DEP officials and completed an A-2 survey.

On March 28, 1988, members of the DEP water resources unit met with the plaintiffs new engineers to stake out the wetlands boundary again. On April 13, 1988, as confirmation of that meeting, Denis Cunningham, the assistant director of the DEP water resources unit, wrote to the plaintiff to advise him that the filled and bulkheaded portion of the property, and possibly the northwest corner of the house were encroaching on the tidal wetlands boundary, thereby creating a violation of General Statutes § 22a-30. This letter suggested that to correct the violation, the plaintiff would have to submit an application to DEP demonstrating the necessity of maintaining the bulkhead and fill within the tidal wetlands. Instead of filing the application, the plaintiff filed the underlying lawsuit against the defendant, claiming damages for breach of the warranty against encumbrances and innocent misrepresentation.

The trial court determined that the area had been filled without obtaining the necessary permits required under General Statutes § 22a-32. The court found that the defendant had breached the warranty against encumbrances and had innocently misrepresented the condition of the property by allowing the plaintiff to purchase the property in reliance on the defendant’s warranty against encumbrances. The court awarded the plaintiff damages and costs in the amount of $47,792.60, a figure that included the costs to correct the wetlands violation as well as the diminution of value of the property caused by the wetlands violation. The defendant brought the present appeal.

This appeal turns on a determination of whether an alleged latent violation of a land use statute or regulation, existing on the land at the time title is conveyed, constitutes an encumbrance such that the conveyance breaches the grantor’s covenant against encumbrances. An encumbrance is defined as “every right to or interest in the land which may subsist in third persons, to the diminution of the value of the land, but consistent with the passing of the fee by the conveyance.” H. Tiffany, Real Property (1975) § 1002; Aczas v. Stuart Heights, Inc., 154 Conn. 54, 60, 221 A.2d 589 (1966). All encumbrances may be classed as either (1) a pecuniary charge against the premises, such as mortgages, judgment liens, tax liens, or assessments, or (2) estates or interests in the property less than the fee, like leases, life estates or dower rights, or (3) easements or servitudes on the land, such as rights of way, restrictive covenants and profits. H. Tiffany, supra, §§ 1003-1007. It is important to note that the covenant against encumbrances operates in praesenti and cannot be breached unless the encumbrance existed at the time of the conveyance. Id.

The issue of whether a latent violation of a restrictive land use statute or ordinance, that exists at the time the fee is conveyed, constitutes a breach of the warranty deed covenant against encumbrances has not been decided in Connecticut. There is, however, persuasive and authoritative weight in the legal literature and the case law of other jurisdictions to support the proposition that such an exercise of police power by the state does not affect the marketability of title and should not rise to the level of an encumbrance. See, e.g., Domer v. Sleeper, 533 P.2d 9 (Alaska 1975) (latent building code violation not an encumbrance); McCrae v. Giteles, 253 So. 2d 260, 261 (Fla. App. 1971) (violation of housing code noticed and known by vendor not an encumbrance); Monti v. Tangora, 99 Ill. App. 3d 575, 425 N.E.2d 597 (1981) (noticed building code violations not an encumbrance); Silverblatt v. Livadas, 340 Mass. 474, 164 N.E.2d 875 (1960) (contingent or inchoate lien which might result from building code violation not an encumbrance); Fahmie v. Wulster, 81 N.J. 391, 408 A.2d 789 (1979) (discussed infra); Woodenbury v. Spier, 122 App. Div. 396, 106 N.Y.S. 817 (1907) (a lis pen-dens filed to enforce housing code violations after conveyance not an encumbrance); Stone v. Sexsmith, 28 Wash. 2d 947, 184 P.2d 567 (1947).

Of the cases cited from other jurisdictions, Fahmie v. Wulster, supra, provides the closest factual analogue to the case before us. In Fahmie, a closely held corporation that originally owned certain property requested permission from the New Jersey bureau of water to place a nine foot diameter culvert on the property to enclose a stream. The bureau required instead that a sixteen and one-half foot diameter culvert should be installed. The corporation went ahead with its plan and installed the nine foot culvert.

The property was later conveyed to Wulster, the titular president of the corporation, who had no knowledge of the installation of the nine foot culvert. Nine years after the installation of the culvert, Wulster conveyed the property, by warranty deed, to Fahmie.

In anticipation of the subsequent resale of the property, Fahmie made application to the New Jersey economic development commission, division of water policy and supply, to make additional improvements to the stream and its banks. It was then that the inadequate nine foot culvert was discovered, and the plaintiff was required to replace it with a sixteen and one-half foot diameter pipe. Fahmie sued Wulster for the cost to correct the violation claiming a breach of the deed warranty against encumbrances.

The New Jersey Supreme Court concluded that it was generally the law throughout the country that a claim for breach of a covenant against encumbrances cannot be predicated on the necessity to repair or alter the property to conform with land use regulations. By so doing, the Fahmie court refused to expand the concept of an encumbrance to include structural conditions existing on the property that constitute violations of statute or governmental regulation. The court concluded that such a conceptual enlargement of the covenant against encumbrances would create uncertainty and confusion in the law of conveyancing and title insurance because neither a title search nor a physical examination of the premises would disclose the violation. The New Jersey court went on to state that “[t]he better way to deal with violations of governmental regulations, their nature and scope being as pervasive as they are, is by contract provisions which can give the purchaser full protection [in such situations].” Id., 397.

The case before us raises the same issues as those raised in Fahmie. Here, the court found that in 1978 the wetlands area was filled without a permit and in violation of state statute. The alleged violation was unknown to the defendant, was not on the land records and was discovered only after the plaintiff attempted to get permission to perform additional improvements to the wetlands area.

Although the DEP first advised the plaintiff of the alleged violation in 1986, it did not bring any action to compel compliance with the statute. Rather, it suggested that the violation may be corrected by submitting an application to DEP. As of the date of trial, the plaintiff had not made such an application, there had been no further action taken by the DEP to compel compliance, and no administrative order was ever entered from which the plaintiff could appeal. Thus, the plaintiff was never required by DEP to abate the violation or restore the wetlands.

Our Supreme Court has stated that for a deed to be free of all encumbrances there must be marketable title that can be sold “at a fair price to a reasonable purchaser or mortgaged to a person of reasonable prudence as a security for the loan of money.” Perkins v. August, 109 Conn. 452, 456, 146 A. 831 (1929). To render a title unmarketable, the defect must present a real and substantial probability of litigation or loss at the time of the conveyance. Frank Towers Corporation v. Laviana, 140 Conn. 45, 53, 97 A.2d 567 (1953). Latent violations of state or municipal land use regulations that do not appear on the land records, that are unknown to the seller of the property, as to which the agency charged with enforcement has taken no official action to compel compliance at the time the deed was executed, and that have not ripened into an interest that can be recorded on the land records do not constitute an encumbrance for the purpose of the deed warranty. Monti v. Tangora, supra, 581-82. Although, under the statute, DEP could impose fines or restrict the use of the property until it is brought into compliance, such a restriction is not an encumbrance. Silverblatt v. Livadas, supra, 479; Gaier v. Berkow, 90 N.J. Super. 377, 379, 217 A.2d 642 (1966).

Because the plaintiff never actually filed the application, any damages that he may have suffered were speculative. The court based its assessment of damages on a proposed application and the anticipated costs of complying with that proposed application. The fact that the alleged violation was first noted by DEP only after the plaintiff made requests to rework the bulkhead and filled area, leads us to the conclusion that no litigation or loss was imminent. This position is confirmed by the fact that, as of the date of trial, no order was entered by DEP to compel the plaintiff to rectify the violative condition and no application was made by the plaintiff to gain approval of existing conditions.

We adopt the reasoning of Fahmie v. Wulster, supra, and hold that the concept of encumbrances cannot be expanded to include latent conditions on property that are in violation of statutes or government regulations. To do so would create uncertainty in the law of conveyances, title searches and title insurance. The parties to a conveyance of real property can adequately protect themselves from such conditions by including protective language in the contract and by insisting on appropriate provisions in the deed. As the Illinois Appellate Court held in Monti v. Tangora, supra, 582, “[t]he problem created by the existence of code violations is not one to be resolved by the courts, but is one that can be handled quite easily by the draftsmen of contracts for sale and of deeds. All that is required of the law on this point is that it be certain. Once certainty is achieved, parties and their draftsmen may place rights and obligations where they will. It is the stability in real estate transactions that is of paramount importance here.”

The plaintiff in this case is an attorney and land developer who had developed waterfront property and was aware of the wetlands requirement. He could have protected himself from any liability for wetlands violation either by requiring an A-2 survey prior to closing or by inserting provisions in the contract and deed to indemnify himself against potential tidal wetlands violations or violations of other environmental statutes.

We disagree as well with the court’s finding of innocent misrepresentation. The elements of innocent misrepresentation are (1) a representation of material fact (2) made for the purpose of inducing the purchase, (3) the representation is untrue, and (4) there is justifiable reliance by the plaintiff on the representation by the defendant and (5) damages. Johnson v. Healy, 176 Conn. 97, 405 A.2d 54 (1978). From the evidence adduced at trial, no representation was made relating to the wetlands area. The court relied exclusively on the warranty against encumbrances as the “assertion” that the property was free and clear of all encumbrances as the material fact misrepresented. Because we have held that the warranty of a covenant against encumbrances was not violated, no misrepresentation was made.

The judgment is reversed as to the award of damages for breach of the warranty against encumbrances and for innocent misrepresentation of real property, and the case is remanded with direction to render judgment in favor of the defendant on those issues.

In this opinion the other judges concurred.

       General Statutes § 22a-32 provides: “regulated activity permit, application. HEARING, waiver of hearing. No regulated activity shall be conducted upon any wetland without a permit. Any person proposing to conduct or cause to be conducted a regulated activity upon any wetland shall file an application for a permit with the commission, in such form and with such information as the commissioner may prescribe. Such application shall include a detailed description of the proposed work and a map showing the area of wetland directly affected, with the location of the proposed work thereon, together with the names of the owners of record of adjacent land and known claimants of water rights in or adjacent to the wetland of whom the applicant has notice. The commissioner shall cause a copy of such application to be mailed to the chief administrative officer in the town or towns where the proposed work, or any part thereof, is located, and the chairman of the conservation commission and shellfish commission of the town or towns where the proposed work, or any part thereof, is located. No sooner than thirty days and not later than sixty days of the receipt of such application, the commissioner or his duly designated hearing officer shall hold a public hearing on such application, provided, whenever the commissioner determines that the regulated activity for which a permit is sought is not likely to have a significant impact on the wetland, he may waive the requirement for public hearing after publishing notice, in a newspaper having general circulation in each town wherever the proposed work or any part thereof is located, of his intent to waive said requirement, except that the commissioner shall hold a hearing on such application upon receipt of a petition, signed by at least twenty-five persons, requesting such a hearing. The following shall be notified of the hearing by mail not less than fifteen days prior to the date set for the hearing: All of those persons and agencies who are entitled to receive a copy of such application in accordance with the terms hereof and all owners of record of adjacent land and known claimants to water rights in or adjacent to the wetland of whom the applicant has notice. The commissioner shall cause notice of such hearing to be published at least once not more than thirty days and not fewer than ten days before the date set for the hearing in the newspaper having a general circulation in each town where the proposed work, or any part thereof, is located. All applications and maps and documents relating thereto shall be open for public inspection at the office of the commissioner. At such hearing any person or persons may appear and be heard.”

       The trial court issued certain injunctive relief in connection with the plaintiffs claim of trespass. The defendant has not challenged that portion of the judgment.

       The award of injunctive relief for trespass was not challenged on appeal and the judgment on that issue is left undisturbed.


author: Heiman, J.

text:
    John K. Saradjian v. Martin L. Saradjian et al.
    (9704)
    Daly, Landau and Heiman, Js.
    Argued May 28
    decision released August 6, 1991

      Ridgely W. Brown, with whom, on the brief, was Heather M. Brown, for the appellant-appellee (named defendant).

      Melvin J. Silverman, for the appellee-appellant (plaintiff).
   Heiman, J.

The defendant appeals from the judgment of the trial court declaring that certain real property held in the names of the plaintiff and the late mother of both the plaintiff and the defendant was subject to a resulting trust in favor of the plaintiff to the extent of one half of the late mother’s one-half interest in the property. The plaintiff has cross appealed.

In his appeal, the defendant claims that the trial court improperly (1) imposed a resulting trust in favor of the plaintiff when the only evidence of or permissible inference regarding the decedent’s intent was that the decedent intended to make a testamentary transfer, (2) imposed a resulting trust where the plaintiff failed to make a timely claim to the decedent’s estate as required by General Statutes § 45-205, and in light of the plaintiff’s inconsistent acts in attempting to purchase the full interest in the property from the estate, (3) awarded equitable relief to the plaintiff even though, inter alia, he had been removed as a fiduciary of his mother’s estate because he had a conflict of interest, did not have clean hands, was guilty of laches, and did not specifically request equitable relief as required by the rules of practice, and (4) considered the action where the liquidation and sale of the real property made subject to the resulting trust was necessary to meet probate, tax and administration expenses.

In his cross appeal the plaintiff asserts that the court incorrectly found that his failure to present a claim to the estate for antemortem expenditures made by him for the benefit of his mother barred him from recovering those expenditures because of the statute of non-claim, General Statutes § 45-205. We affirm the judgment of the trial court.

The facts, as found by the trial court, which were not substantially in dispute, are as follows. The plaintiff and Zarouhi Saradjian, the mother of the plaintiff and the defendant, purchased a piece of residential real estate located at 175 North Stamford Road, Stamford, in August, 1968. The deed to the property conveyed an undivided one-half interest to each grantee without the right of survivorship. The plaintiff paid 75 percent of the purchase price and Zarouhi Saradjian paid 25 percent. After the acquisition of this property, the plaintiff paid all real estate taxes, insurance charges, costs of maintenance and improvements on the property. No agreement existed between the plaintiff and his cotenant as to the disposition of her interest in the property upon her death. Zarouhi Saradjian died on January 23, 1987, leaving a will that had been executed in 1962. The plaintiff did not present a claim against the estate claiming an equitable interest in the property or claiming reimbursement for his expenditures.

The trial court concluded that the plaintiff failed to satisfy his burden of proving an express agreement between himself and his mother, but concluded that the mother’s one-half interest in the real property was subject to a resulting trust on one half of her title interest. The trial court further concluded that the plaintiff’s equitable claim for a resulting trust was not barred by the statute of nonclaim, but that his claim for reimbursement of expenditures was barred under that statute for his failure to present the claim to the estate.

I

The Defendant’s Appeal

A

The defendant first asserts that the trial court incorrectly imposed a resulting trust where the only evidence or permissible inference from the evidence of the intent of the decedent was that she intended to make a testamentary transfer. We do not agree.

When property has been acquired and maintained under circumstances that make it inequitable for the holder of the legal title to retain the entire beneficial interest, equity converts him into a trustee. Cohen v. Cohen, 182 Conn. 193, 201, 438 A.2d 55 (1980). The parties would, under these circumstances, share the property in proportion to the contribution of each to the purchase price. See Fox v. Shanley, 94 Conn. 350, 359, 109 A. 249 (1920). “ ‘When the purchase money for property is paid by one and the legal title is taken in the name of another, a resulting trust ordinarily arises at once, by operation of law, in favor of the one paying the money. . . .’ ” Cohen v. Cohen, supra. The party seeking to impose the resulting trust need only show that the purchase money was paid by him and legal title was taken in another to gain the benefit of the presumption. Farrah v. Farrah, 187 Conn. 495, 501, 446 A.2d 1075 (1982).

This presumption is one of fact rather than law and may be rebutted. Fox v. Shanley, supra, 357. Extrinsic evidence may be used to establish that the actual intent of the parties was otherwise; Cohen v. Cohen, supra; and where “the nominal grantee is a natural object of the payor’s bounty,” the presumption of trust is rebutted, because the law presumes a donative intent. Farrah v. Farrah, supra, 500. There is no presumption of gift when the transferee is the parent of the payor. See 4A R. Powell & P. Rohan, Powell on Real Property (1991) § 592; 2 Restatement (Second), Trusts § 442, comment (a); 76 Am. Jur. 2d, Trusts § 208.

Thus, the only way in which the defendant in this case could have rebutted the presumption of a resulting trust was by offering evidence that the actual intent of the parties was otherwise.

The existence of a resulting trust is an issue of fact. Farrah v. Farrah, supra, 501. Intent is also a question of fact to be determined by the trier of fact from the evidence that it finds to be credible. Lord v. Stavrakis, 6 Conn. App. 161, 162, 503 A.2d 629, cert. denied, 199 Conn. 804, 506 A.2d 146 (1986). “In a case tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony.” Kimberly-Clark Corporation v. Dubno, 204 Conn. 137, 153, 527 A.2d 679 (1987). “In reviewing the trial judge’s factual findings, we give the evidence the most favorable reasonable construction in support of the judgment.” Kelman v. McDonald, 24 Conn. App. 398, 401, 588 A.2d 667 (1991). We may reject a factual conclusion of the trial court only if it is clearly erroneous. Id.

“ ‘ “We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached. Rather, we focus on the conclusion of the trial court, as well as the method by which it arrived at that conclusion to determine whether it is legally correct and factually supported.” ’ Lukas v. New Haven, 184 Conn. 205, 208, 439 A.2d 949 (1981).” Kelman v. McDonald, supra.

It is often stated that “ ‘[a] finding is “clearly erroneous” 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.’ ” Doyle v. Kulesza, 197 Conn. 101, 105, 495 A.2d 1074 (1985). We conclude that such is not the case here.

The trial court expressly found that no specific agreement to convey or to devise the property upon the death of the mother existed at the time of the conveyance. It also specifically found that the plaintiff paid three fourths of the purchase price and the decedent paid one fourth, and that the plaintiff paid the taxes, upkeep, maintenance and other expenses on the property. These findings are amply supported by the record, and are sufficient to raise the presumption of a resulting trust. The trial court could reasonably have found that the defendant failed to sustain his burden of rebutting that presumption.

The trial court’s legal and factual conclusions are not clearly erroneous because they are supported by the facts set forth in its memorandum of decision, and the subordinate facts are amply supported by the evidence. Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).

The defendant’s claim that the trial court improperly imposed a resulting trust is without merit.

B

The defendant next asserts that the court improperly imposed a resulting trust on the real property because (1) the plaintiff failed to file a timely claim pursuant to General Statutes § 45-205, and (2) the plaintiff’s attempted purchase of the full interest in the property from the estate was inconsistent with his claim of a resulting trust. We disagree.

The defendant posits that a claim that is addressed to the equitable powers of the court, such as a claim seeking the imposition of a resulting trust, is subject to General Statutes § 45-205, and that failure to present such a claim to the estate within the time period set forth in that statute bars the court from granting equitable relief. The defendant misconstrues both the statute of nonclaim and the equitable doctrine of resulting trust.

“ ‘In the absence of all evidence of intention, the law presumes a trust, from the natural equity that he who pays the money for property ought to enjoy the beneficial interest.” Fox v. Shanley, supra. The resulting trust does not come into existence because of an agreement between the parties but is one that “ordinarily arises at once, by operation of law, in favor of the one paying the money.” Franke v. Franke, 140 Conn. 133, 138, 98 A.2d 804 (1953). Thus, the resulting trust came into existence at the time of conveyance. Zack v. Guzauskas, 171 Conn. 98, 101, 368 A.2d 193 (1976). Its enforcement is an equitable action. Cohen v. Cohen, supra, 203.

The purpose of General Statutes § 45-205 is to consolidate all of a decedent’s existing obligations that must be paid out of the general estate. Padula v. Padula, 138 Conn. 102, 107, 82 A.2d 362 (1951). The word “claim” as used in the statute “means those obligations which are in the broad sense of the term, debts [and would include] . . . obligations arising out of contract express or implied.” Sherwood v. Bridgeport, 123 Conn. 348, 351, 195 A. 744 (1937).

In this case the plaintiff seeks to recover specific property in the hands of the executor. “ ‘A claim for specific property in the hands of the [executor] is deemed to be a claim “against the [executor]” but not “against the estate”; for such property, though in the hands of the [executor], is not part of the estate and the claim for it is not a “debt” of the estate.’ ” Breen v. Phelps, 186 Conn. 86, 102-103, 439 A.2d 1066 (1982). As such, a claim for the recovery of specific property is not within the statute of nonclaim. Dennen v. Searle, 149 Conn. 126, 140, 176 A.2d 561 (1961). For this reason the trial court correctly found that the statute of nonclaim was inapplicable to the claim involving the resulting trust. See McDonald v. Hartford Trust Co., 104 Conn. 169, 189-90, 132 A. 902 (1926).

The additional issue raised by the defendant, that the plaintiff attempted to purchase the full interest in the property from the estate, has not been briefed by the defendant and is, therefore, considered abandoned. See State v. Parent, 8 Conn. App. 469, 472, 513 A.2d 725 (1986); Zimny v. Cooper-Jarrett, Inc., 8 Conn. App. 407, 432, 513 A.2d 1235, cert. denied, 201 Conn. 811, 516 A.2d 887 (1986).

The trial court correctly decided that the time limits set forth in General Statutes § 45-205 do not apply to the equitable claim of a resulting trust.

C

We will combine our discussion of the defendant’s remaining claims because neither was properly preserved. The defendant asserts that the trial court improperly awarded equitable relief to the plaintiff, even though the plaintiff had been removed as a fiduciary of his mother’s estate because of a conflict of interest, did not have clean hands, was guilty of laches and failed to specifically request equitable relief as required by the rules of practice. In addition, the defendant asserts that the trial court incorrectly concluded that it could act where the liquidation and sale of the real estate made subject to the resulting trust was necessary to meet probate, tax and administration expenses.

Our review of both the trial court’s file and the record on appeal discloses that neither claim was properly raised in the trial court. It is a rule of long standing that in the absence of exceptional circumstances, claims of error not raised distinctly at the trial will not be reviewed on appeal. Goold v. Goold, 11 Conn. App. 268, 282, 527 A.2d 696, cert. denied, 204 Conn. 810, 528 A.2d 1156 (1987); Hanson v. Department of Income Maintenance, 10 Conn. App. 14, 18, 521 A.2d 208 (1987). “We have repeatedly held that this court will not consider claimed errors on the part of the trial court unless it appears on the record that the question was distinctly raised at trial and was ruled upon and decided by the court adversely to the appellant’s claim.” Keating v. Glass Container Corporation, 197 Conn. 428, 431, 497 A.2d 763 (1985). This enables the judge and opposing counsel to correct possible defects in the trial, obviating the necessity for an appeal. Id. We do not respond to claims based on matters extraneous to the formal record; Chaplin v. Balkus, 189 Conn. 445, 448, 456 A.2d 286 (1983); nor do we sanction or approve of appeal by ambuscade. See Frager v. Pennsylvania General Ins. Co., 161 Conn. 472, 482, 289 A.2d 896 (1971) (Ryan, J., dissenting); see also Woodstock v. Williams, 1 Conn. App. 505, 508, 473 A.2d 330, cert. denied, 193 Conn. 804, 475 A.2d 1104 (1984).

We decline to review these claims because the defendant failed to raise them before the trial court.

II

The Plaintiff’s Cross Appeal

In his cross appeal, the plaintiff posits that the trial court incorrectly concluded that his claims arising out of payments that had been made by him for real estate taxes, insurance, painting, maintenance, utility bills, repair bills and remodeling were barred by General Statutes § 45-205. We disagree.

The purpose of General Statutes § 45-205 is to ensure that an administrator or executor be informed of the claims against the general estate in order to allow him to determine their validity. See Genovese v. J. N. Clapp Co., 4 Conn. App. 443, 447, 495 A.2d 1079 (1985). It is designed to enable the fiduciary of the estate to know what claims must be paid out of the general estate. State v. Goldfarb, 160 Conn. 320, 325, 278 A.2d 818 (1971). As we have previously indicated, the word “claim” as used in the statute refers to those obligations that are, in the broad sense, debts of the decedent and include either express or implied contractual obligations. Sherwood v. Bridgeport, supra. “A claim which is characterized as an existing obligation of the decedent and would be paid out of the estate as a whole falls within the statute and must be presented.” Breen v. Phelps, supra, 102. All of the financial claims made by the plaintiff are quasi-contractual in nature, and are properly classified as claims of an existing obligation of the decedent that were incurred antemortem. See id., 104. Thus, they are subject to the provisions of General Statutes § 45-205. See id., 106.

“Where made applicable by the entry of a proper order of limitation, the Statute of Nonclaim is an absolute bar to the maintenance of an action on an antemortem claim for money damages, such as the plaintiffs claim in this case, unless the claim has been properly presented.” (Footnote omitted.) Lubas v. McCusker, 153 Conn. 250, 254, 216 A.2d 289 (1965).

The trial court correctly concluded, that because the plaintiff failed to present his claims for money damages to the Probate Court, the claims were barred by General Statutes § 45-205. See Grant v. Grant, 63 Conn. 530, 546, 29 A. 15 (1893). The cross appeal is without merit.

The judgment is affirmed.

In this opinion the other judges concurred.

       The original defendants were Martha Vorperian and Martin L. Saradjian. Martha Vorperian is not a party to this appeal. As used herein, the term defendant refers to only Martin L. Saradjian. The defendant, Martin L. Saradjian, is coexecutor of the estate of the parties’ late mother.

       For purposes of our analysis, the plaintiffs taking title with the defendant to the property in the joint estate is the equivalent of an absolute conveyance of real property. See Cohen v. Cohen, 182 Conn. 193, 202, 438 A.2d 55 (1980).

       General Statutes § 45a-395 (formerly § 45-205) provides in pertinent part: “(a) The court of probate may order the citation of the creditors of the deceased whose estate is in settlement before it to bring in their claims against such estate within such time, not more than twelve months nor less than three months, from the date of such order, as it limits, by publishing a notice to that effect in a newspaper having a circulation in the probate district in which such estate is in settlement and by such further notice as the court deems necessary.
      “(b) If any creditor fails to exhibit his claim to the fiduciary or his attorney as directed in such order, within the time limited by such order, he shall be barred of his demand against such estate; but, when a right of action accrues after the time limited for the presentation of claims, it shall be exhibited within four months after such right of action accrues and shall be paid out of the estate remaining after the payment of the debts exhibited within the time limited.”