author: WEST, J.

text:
    LOCAL 391, COUNCIL 4, AFSCME, AFL-CIO v. DEPARTMENT OF CORRECTION ET AL.
    (AC 22577)
    Foti, Dranginis and West, Js.

      Argued January 15
    officially released April 1, 2003

      J. William Gagne, Jr., with whom, on the brief, was P. Jo Anne Burgh, for the appellant (plaintiff).

      Thomas P. Clifford III, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellees (defendants).
   Opinion

WEST, J.

The plaintiff, Local 391, Council 4, American Federation of State, County and Municipal Employees, AFL-CIO, appeals from the judgment of the trial court denying its application to vacate an arbitration award. The plaintiff claims that the court improperly denied the application to vacate the arbitration award because the arbitrator allegedly had exceeded his powers or so imperfectly executed them that a mutual, definite and final award on the subject matter was not made. The plaintiff specifically claims that the court improperly held that the arbitration award drew its essence from the parties’ collective bargaining agreement. We disagree and affirm the judgment of the trial court.

The following facts are relevant to our disposition of the plaintiffs appeal. Since 1979, the plaintiff and the defendant department of correction have been parties to several consecutive collective bargaining agreements governing wages, hours and other conditions of employment. On June 30, 1994, the then extant collective bargaining agreement expired, and the parties were unable to reach an accord with respect to a successor agreement. The parties agreed to extend the terms of the recently expired agreement until a successor agreement could be ratified. Article forty-three of the collective bargaining agreement requires any employee who is absent due to illness for five or more consecutive workdays to submit a medical certificate stating the reasons for the absence.

The parties subsequently engaged in binding interest arbitration to settle the unresolved contract issues. A binding arbitration award was issued in April, 1997, setting forth the arbitration panel’s decisions concerning contractual provisions for the period 1994 through June 30, 1999. The Senate of the Connecticut General Assembly rejected that award.

Following the Senate’s action, several newspaper articles were written speculating about the possibility of a strike or other work action, such as a “sick-out.” As a result of that speculation, the defendant implemented a policy requiring all employees who called in sick, regardless of the duration of their absence, to produce a medical certificate substantiating the validity of their absence. Failure to submit the required certificate would result in the nonpayment of wages for the period of the absence.

Certain members of the plaintiff bargaining unit were disciplined in conformity with the newly implemented policy, and the union filed a grievance challenging the policy as inconsistent with the terms of the collective bargaining agreement. After complying with the contractual grievance and arbitration steps, the parties jointly submitted to the arbitrator the following issue: “Did the State violate Article 43 of the NP4 collective bargaining agreement when on or about May 16, 1997 the administration required employees to submit medical certificates for absences of less than 5 days? If so, what shall the remedy be consistent with the contract?” In its award, issued on October 7, 2000, the arbitrator found that the state did not violate article forty-three of NP-4 collective bargaining agreement and concluded that no remedy was warranted.

On October 26, 2000, the plaintiff filed an application to vacate the award. Following a hearing on July 30, 2001, the court, on August 10,2001, denied the plaintiffs application to vacate the award. This appeal followed.

“The scope of review by the court of an arbitrator’s power to make an award is limited. Arbitration is a creature of contract between the parties and its autonomy requires a minimum of judicial intrusion. . . . The parties themselves, by the agreement of the submission, define the powers of the arbitrator. . . . The submission constitutes the charter of the entire arbitration proceedings and defines and limits the issues to be decided. . . . When the parties have agreed to a procedure and have delineated the authority of the arbitrator, they must be bound by those limits. . . . An application to vacate or correct an award should be granted where an arbitrator has exceeded his power. In deciding whether an arbitrator has exceeded his power, we need only examine the submission and the award to determine whether the award conforms to the submission.” (Internal quotation marks omitted.) Hartford v. International Assn, of Firefighters, Local 760, 49 Conn. App. 805, 811-12, 717 A.2d 258, cert. denied, 247 Conn. 920, 722 A.2d 809 (1998).

“[A]n arbitrator is confined to interpretation and application of the collective bargaining agreement; he does not sit to dispense his own brand of industrial justice. He may of course look for guidance from many sources, yet his award is legitimate only so long as it draws its essence from the collective bargaining agreement. When the arbitrator’s words manifest an infidelity to this obligation, courts have no choice but to refuse enforcement of the award.” (Internal quotation marks omitted.) Hudson Wire Co. v. Winsted Brass Workers Union, 150 Conn. 546, 553, 191 A.2d 557 (1963).

“Merely because an arbitral decision is not based on the express terms of a collective bargaining agreement does not mean that it is not properly derived 1'rom the agreement. An arbitrator is entitled to take cognizance of contract principles and draw on them for guidance in construing an agreement. . . . Neither a misapplication of principles of contractual interpretation nor an erroneous interpretation of the agreement in question constitutes grounds for vacatur.” (Citations omitted; internal quotation marks omitted.) Harry Hoffman Printing, Inc. v. Graphic Communications International Union, Local 261, 950 F.2d 95, 98-99 (2d Cir. 1991).

The plaintiff argues that the arbitration award should have been vacated because the arbitrator, in reaching his determination, improperly relied on a state regulation that was superseded by article forty-three of collective bargaining agreement. See General Statutes § 5-278 (e) (where terms of collective bargaining agreement are inconsistent with terms of regulation, agreement prevails). The plaintiff interprets article forty-three as absolutely restricting the state from requiring medical certificates except on an employee’s absence from work of more than five consecutive workdays. The plaintiff contends that the arbitration award is, therefore, illegitimate because it does not draw its essence from the collective bargaining agreement. See Darien Education Assn. v. Board of Education, 172 Conn. 434, 437, 374 A.2d 1081 (1977).

Arbitration awards, however, are not to be invalidated merely because they rest on an allegedly erroneous inteipretation or application of the relevant collective bargaining agreement. Local 1042, Council 4, AFSCME, AFL-CIO v. Board of Education, 66 Conn. App. 457, 462, 784 A.2d 1018 (2001); Harry Hoffman Printing, Inc. v. Graphic Communications International Union, Local 261, supra, 950 F.2d 98-99. Rather, in determining whether the arbitration award draws its essence from the collective bargaining agreement, the reviewing court is limited to considering whether the collective bargaining agreement, rather than some outside source, is the foundation on which the arbitral decision rests. Harry Hoffman Printing, Inc. v. Graphic Communications International Union, Local 261, supra, 98-99. If that criterion is satisfied, as it is in the present case, then we cannot conclude that the arbitrator exceeded his authority or imperfectly executed his duty.

A review of the arbitration award reveals that the arbitrator conscientiously interpreted the collective bargaining agreement in deciding whether the defendant had violated any term therein. The arbitrator cited to the relevant provisions of the collective bargaining agreement on which he was relying. Specifically, he referenced articles thirty-two, entitled “insurance and leaves,” and forty-three, entitled “sick leave/medical certificates,” of the collective bargaining agreement. Article thirty-two states in relevant part: “Except where varied in this Agreement of this Article, the State will continue in force its written rules and regulations presently in effect with reference to: (a) Sick leave . . . .” Article forty-three states: “If an employee is absent for five (5) or more consecutive working days, the employee must submit a medical certificate stating the reasons for the absence. When continued absences from work constitute an abuse of sick leave, the employee and the Union shall be notified in writing. After such notification, the Employer may deny sick pay. Such denial of sick pay is subject to the grievance and arbitration provision of this Agreement. Continued abuse of sick leave will subject the employee to progressive discipline.” Section 5-247-11 (a) of the Regulations of Connecticut State Agencies provides: “An acceptable medical certificate, which must be on the form prescribed by the Commissioner of Personnel and Administration and signed by a licensed physician or other practitioner whose method of healing is recognized by the state, will be required of an employee by his appointing authority to substantiate a request for sick leave for the following reasons: (1) Any period of absence consisting of more than five consecutive working days; (2) To support request for sick leave of any duration during annual vacation; (3) Leave of any duration if absence from duty recurs frequently or habitually provided the employee has been notified that a certificate will be required; (4) Leave of any duration when evidence indicates reasonable cause for requiring such a certificate.”

The plaintiff argues that article forty-three supersedes § 5-247-11 of the regulations in its entirety and that the plain language of that article prohibits the defendant from conditioning the requirement of a medical certificate on any circumstance other than an employee’s absence from work for five or more consecutive days. The plaintiff further argues that in finding that the defendant was justified in requiring medical certificates for absences fewer than five days in duration, the arbitrator improperly modified or altered the collective bargaining agreement.

We cannot conclude that the arbitrator, in looking to both the collective bargaining agreement and a regulation incorporated by reference in that agreement, exceeded or imperfectly executed his powers. See Ethyl Corp. v. United Steelworkers of America, 768 F.2d 180, 184-85 (7th Cir. 1985), cert. denied, 475 U.S. 1010, 106 S. Ct. 1184, 89 L. Ed. 2d 300 (1986). In interpreting collective bargaining agreements, arbitrators are entitled to apply relevant principles of contract interpretation. Harry Hoffman Printing, Inc. v. Graphic Communications International Union, Local 261, supra, 950 F.2d 98. “Generally, incorporation by reference of existing documents produces a single contract which includes the contents of the incorporated papers. . . . When parties execute a contract that clearly refers to another document, there is an intent to make the terms and conditions of the other document a part of their agreement, as long as both parties are aware of the terms and conditions of the second document.” (Internal quotation marks omitted.) Lussier v. Spinnato, 69 Conn. App. 136,141, 794 A.2d 1008, cert. denied, 261 Conn. 910, 806 A.2d 49 (2002).

In the present case, there is nothing inherently inconsistent between the arbitration award and the terms of the collective bargaining agreement. As previously stated, article thirty-two states in relevant part that “[e]xcept where varied in this Agreement . . . the State will continue in force its written rules and regulations presently in effect with reference to: (a) Sick leave . . . .” (Emphasis added.) Section 5-247-11 (a) of the regulations allows a state employer to require a medical certificate to substantiate requested sick leave in four different circumstances, including: “(1) Any period of absence consisting of more than five consecutive working days ... (4) Leave of any duration when evidence indicates reasonable cause for requiring such a certificate.”

Article forty-three of the collective bargaining agreement varies the applicability of § 5-247-11 (a) (1) of the regulations by requiring the presentation of a medical certificate upon an absence of five or more consecutive working days, rather than upon an absence of more than five consecutive workdays. Article forty-three further provides for the denial of sick pay only after notification to the employee and the union that such absences constitute an abuse of sick leave, and makes such denial of sick pay subject to the collective bargaining agreement’s grievance and arbitration provision. Under article forty-three, continued abuse of sick leave will subject the employee to progressive discipline. Article forty-three is silent, however, with respect to the other circumstances controlled by the regulation.

In coming to his conclusion, the arbitrator interpreted article thirty-two as continuing in force the relevant state regulations pertaining to sick leave that were not specifically amended or abrogated by article forty-three of the collective bargaining agreement. Because article forty-three makes no reference to three of the four regulatory circumstances giving rise to a required medical certificate pursuant to § 5-247-11 (a) of the regulations, the arbitrator concluded that those conditions remained valid under the collective bargaining agreement. Given the parties’ lack of success in negotiating a successor collective bargaining agreement and the media speculation regarding the possibility of a “sick-out,” the arbitrator found that § 5-247-11 (a) (4) of the regulations was satisfied in that the state had “reasonable cause” to require a medical certificate under the circumstances.

It is not our role to determine whether the arbitrator’s interpretation of the collective bargaining agreement was correct. It is enough to uphold the judgment of the court, denying the plaintiffs application to vacate the award, that such interpretation was a good faith effort to interpret the terms of the collective bargaining agreement. On the basis of the foregoing, we conclude that it was.

The judgment is affirmed.

In this opinion the other judges concurred.

       Initially, the plaintiff also claimed that the application to vacate should have been granted because the arbitration award violated the public policy expressed in General Statutes §§ 5-272 (c) and 5-278 (e). In its reply brief to this court, however, the plaintiff withdrew that claim.

       John J. Armstrong, the commissioner of correction, also is a defendant. We refer in this opinion to Armstrong and the department of correction collectively as the defendant.

       Although the grievance was unsuccessful, the disciplined union members substantially were made whole in connection with the eventual settlement of anew collective bargaining agreement. The plaintiff, however, also wanted the defendant to cease and desist enforcement of the sick leave policy.

       In that portion of his decision titled “closing,” the arbitrator stated in relevant part: “Circumstances from May 7, [1997] to May 16, [1997] were complex, worrisome and vexatious. There were concerns about strikes and job actions. The remarks of union officials were guarded and circumspect. There were prison facilities which went into lockdown status during this anxiety producing period. [Certain members], the first guards to respond to an emergency, riot or an escape at facilities, turned in their equipment, not a contractually prohibited action. Connecticut state police declared support for the guards and said it would respond to prison emergencies. Strike fears produced employee dismissal threats. It was noted in state exhibit 1-6 that prison guards had gone on strike in 1977 although it was illegal for public employees to do so. One observation in state exhibit 1-8 was that there were 5000 people represented by the union, and ‘it is hard for union members to control everyone.’ ”


source: Caselaw Access Project

author: SCHALLER, J.

license: Public Domain

text:
    JAMES DEMAREST ET AL. v. FIRE DEPARTMENT OF THE CITY OF NORWALK ET AL.
    (AC 22262)
    Lavery, C. J., and Schaller and West, Js.

      Argued October 15, 2002
    officially released April 1, 2003

      Jerry V. Leaphart, for the appellants (plaintiffs).

      M. Jeffry Spahr, for the appellees (defendants).
   Opinion

SCHALLER, J.

The plaintiffs, James Demarest and John Bolton, appeal from the judgment of the trial court rendered in favor of the defendants in this quo warranto action challenging the defendants’ hiring of certain firefighters. On appeal, the plaintiffs claim that the court improperly (1) failed to impanel a jury to act as fact finder in violation of their constitutional right to a jury trial, (2) determined that the Norwalk fire board did not act ar bitrarily and capriciously in applying the criteria for firefighter eligibility, (3) determined that the date on which the firefighters were sworn in was the date by which they had to satisfy the eligibility criteria and (4) failed to consider certain evidence. In addition, the plaintiffs claim that the trial judge improperly failed to recuse himself.

We ordered the parties to file supplemental briefs on the following additional questions: (1) whether damages can be awarded in a quo warranto action; (2) whether the plaintiffs’ failure to name as defendants the individual firefighters whose removal from office is sought deprives the trial court or this court of jurisdiction over the matter; and (3) if this court has jurisdiction over the appeal, whether the trial court’s judgment should be reversed and a new trial ordered based on the nonjoinder of the firefighters. We conclude that the individual firefighters are indispensable parties, and, accordingly, reverse the judgment of the trial court. We also address the plaintiffs’ claim regarding the court’s failure to impanel a jury and the issue regarding the availability of damages because those issues are likely to arise in a new trial.

I

We first address the plaintiffs’ failure to name as defendants the firefighters whose title to office is challenged. Although that issue was not specifically raised as a ground for reversal, we conclude that the firefighters are indispensable parties and that the court therefore could not properly have proceeded to judgment in light of their nonjoinder.

The following facts are relevant to the issue of the firefighters’ nonjoinder. In the operative complaint, dated June 23, 2000, the plaintiffs alleged that nine firefighters hired by the defendants had failed to satisfy the job eligibility requirements in a timely manner. The plaintiffs did not, however, name the firefighters as defendants. The defendants raised the nonjoinder twice in the trial court. The issue was first raised in the defendants’ April 20,1998 motion to strike. The court declined to grant the motion on that ground because the motion did not provide the absent parties’ names and addresses as required by Practice Book § 10-39 (b). Subsequently, the defendants filed a motion for summary judgment in support of which they again raised the nonjoinder of the firefighters. In its memorandum of decision denying summary judgment, the court rejected the defendants’ argument, noting that a motion to strike is the exclusive vehicle for addressing the failure to join a necessary party. In addition, the court stated that the challenged firefighters were not necessary parties because, according to the court, “in a quo warranto action, the writ is not directed against the officer personally, but the office itself.” The case subsequently was tried to the court, which rendered judgment for the defendants. This appeal followed.

The plaintiffs argue in their brief that five of the firefighters had not satisfied the eligibility requirements in a timely manner. Nevertheless, the nonjoinder of the firefighters was not raised on appeal until the defendants mentioned the issue in their first supplemental brief. As previously stated, we subsequently ordered the parties to file additional supplemental briefs to address the significance of the nonjoinder.

We first note that the failure of the parties to raise the nonjoinder of the individual firefighters in their original briefs does not preclude us from consideration of the issue. Ordinarily, an issue may not be raised for the first time in a supplemental brief when the court has not ordered supplemental briefing on that issue. See Mulroy v. Becton Dickinson Co., 48 Conn. App. 774, 778 n.2, 712 A.2d 436 (1998). Nevertheless, when an action cannot be disposed of properly on its merits because of the absence of an indispensable party, the defect is not waivable and can be addressed by this court even if not timely raised by the parties. See W. G. Glenney Co. v. Bianco, 27 Conn. App. 199, 202-203, 604 A.2d 1345 (1992); Gaudio v. Gaudio, 23 Conn. App. 287, 305, 580 A.2d 1212, cert. denied, 217 Conn. 803, 584 A.2d 471 (1990).

“Parties are considered indispensable when they not only have an interest in the controversy, but an interest of such a nature that a final decree cannot be made without either affecting that interest, or leaving the controversy in such condition that its final [disposition] may be . . . inconsistent with equity and good conscience. . . . Indispensable parties must be joined because due process principles make it essential that [such parties] be given notice and an opportunity to protect [their] interests by making [them] a party to the [action]. . . . Necessary parties, in contrast, are those [p]ersons having an interest in the controversy, and who ought to be made parties, in order that the court may act on that rule which requires it to decide on, and finally determine the entire controversy, and do complete justice, by adjusting all the rights involved in it. . . . [B]ut if their interests are separable from those of the parties before the court, so that the court can proceed to a decree, and do complete and final justice, without affecting other persons not before the court, the latter are not indispensable parties.” (Citations omitted; internal quotation marks omitted.) Napoletano v. CIGNA Healthcare of Connecticut, Inc., 238 Conn. 216, 225-26 n.10, 680 A.2d 127 (1996), cert. denied, 520 U.S. 1103, 117 S. Ct. 1106, 137 L. Ed. 2d 308 (1997).

A complaint in the nature of a quo warranto may be brought “[w]hen any person . . . usurps the exercise of any office . . . [and] the Superior Court may proceed ... to punish such person . . . for such usurpation, according to the course of the common law and may proceed therein and render judgment according to the course of the common law.” General Statutes § 52-491. “A quo warranto proceeding under the common law lies only to test the defendant’s right to hold office de jure. ... It is well established that in quo warranto proceedings the burden is upon the defendant to show a complete title to the office in dispute.” (Citations omitted; internal quotation marks omitted.) Cheshire v. McKenney, 182 Conn. 253, 256-57, 438 A.2d 88 (1980); see also Deguzis v. Jandreau, 27 Conn. App. 421, 424, 606 A.2d 52 (1992). “A successful action in quo warranto ousts the wrongful office holder and declares the position vacant.” Carleton v. Civil Service Commission, 10 Conn. App. 209, 215, 522 A.2d 825 (1987).

“The parties defendant or respondent in quo warranto proceedings are those charged with exercising the particular office or franchise without lawful right. Stated otherwise, a writ of quo warranto must be directed toward the objectionable person holding an office and exercising its functions in his or her individual capacity.” 65 Am. Jur. 2d, Quo Warranto § 93 (2001); see also Johnson v. Manhattan Railway Co., 289 U.S. 479, 502, 53 S. Ct. 721, 77 L. Ed. 1331 (1933) (quo warranto proceeding “must be brought against the person who is charged with exercising an office or authority without lawful right”); Blackburn v. O'Brien, 289 F. Sup. 289, 293 (W.D. Va. 1968).

Under the authorities previously cited, the firefighters whose title to office is challenged clearly have the burden of proving that they rightfully hold office. For reasons not apparent from the record, however, the firefighters have not been named as defendants. This case therefore presents a unique situation in which the individuals possessing the burden of proof are not parties to the action. Furthermore, because the remedy for a finding that any of the firefighters does not rightfully hold office would be the ouster of that firefighter, the individuals who would be most directly affected by a judgment for the plaintiffs were not able to defend their rights to their positions. The court nevertheless proceeded to trial and judgment without requiring the joinder of the firefighters.

We cannot escape the conclusion that the trial of the action without first requiring joinder of the firefighters resulted in a final disposition that necessarily was inconsistent with equity and good conscience. This is not a case in which the missing parties’ interests are separable from those of the parties before the court so that the court can proceed to a decree and do complete justice without affecting the missing parties. There simply cannot be any decree or final decision in a quo warranto action in the absence of the parties whose ouster is sought. We therefore conclude that the challenged firefighters are indispensable parties in whose absence the case could not be disposed of properly on its merits. See Napoletano v. CIGNA Healthcare of Connecticut, Inc., supra, 238 Conn. 225-26 n.10.

Having reached the conclusion that the challenged firefighters are indispensable parties, we must next determine the proper course of action for the trial court on remand. Specifically, we must decide whether the court should dismiss the case or conduct a new trial after joinder of the proper parties. J&B Construction & Contracting Services, Inc. v. Zoning Board of Appeals, 45 Conn. App. 702, 706-707, 697 A.2d 721 (1997). The nonjoinder of a party implicates the court’s subject matter jurisdiction and therefore requires dismissal if a statute mandates the naming and serving of the party. Fong v. Planning & Zoning Board of Appeals, 212 Conn. 628, 634—35, 563 A.2d 293 (1989). Our Supreme Court held in Simko v. Zoning Board of Appeals, 205 Conn. 413, 533 A.2d 879 (1987), aff'd, 206 Conn. 374, 538 A.2d 202 (1988), that the failure to name the town clerk in a zoning appeal deprived the trial court of subject matter jurisdiction. That conclusion was based on the language of the statute authorizing the appeal to the Superior Court, General Statutes § 8-8 (b), which at that time provided that “[njotice of such appeal shall be given by . . . serving a true and attested copy upon the clerk of the municipality. . . .” Id., 414 n.2. Conversely, when a party is indispensable but is not required by statute to be made a party, the court’s subject matter jurisdiction is not implicated and dismissal is not required. Fong v. Planning & Zoning Board of Appeals, supra, 636.

Section 52-491 does not expressly require a plaintiff in a quo warranto action to name and to serve the person allegedly usurping the contested office. The plaintiffs’ failure to name the firefighters in the present case therefore does not require dismissal. Accordingly, we remand the case to the trial court for joinder of the proper parties and a new trial. We first, however, address the plaintiffs’ claims that present issues that are likely to arise in the new trial.

II

The plaintiffs claim that the court improperly failed to impanel a jury to act as fact finder in violation of their right to a juiy trial under the state and federal constitutions. We are not persuaded.

The following additional facts are relevant to the plaintiffs’ claim. On the first day of trial, prior to calling their first witness, the plaintiffs requested that the court impanel a jury to hear the evidence. The plaintiffs argued that they had a constitutional right to a jury trial. The court denied the request. The plaintiffs claim on appeal that the court improperly denied then-request. Their sole argument in support of their claim is that the state and federal constitutions guarantee the right to a jury trial in a quo warranto action. We are not persuaded.

We first note that the right to a jury trial under the seventh amendment to the United States constitution applies only to actions in federal court and does not apply to state court proceedings. Cumberland Farms, Inc. v. Groton, 262 Conn. 45, 72, 808 A.2d 1107 (2002). Consequently, the only question in the present case is whether the plaintiffs had a right to a jury trial pursuant to article first, § 19, of the constitution of Connecticut.

“[A]rticle first, § 19, of the Connecticut constitution . . . guarantees the right to a jury trial in all cases for which such a right existed at the time of the adoption of that constitutional provision in 1818 . . . [or] in cases that are substantially similar to cases for which the right to a jury trial existed at common law in 1818.” (Internal quotation marks omitted.) Id., 71. Our Supreme Court has stated that “[w]rits of mandamus and quo warranto . . . can properly be considered as special statutory proceedings triable only to a court without a jury, because they were not triable to a jury prior to 1818.” (Internal quotation marks omitted.) Swanson v. Boschen, 143 Conn. 159, 166 n.l, 120 A.2d 546 (1956). The plaintiffs therefore do not have a constitutional right to a jury trial in the present case. Accordingly, the court properly denied the plaintiffs’ request for a jury trial.

Ill

Finally, we consider whether a quo warranto plaintiff who is legally entitled to an office usurped by a defendant may collect damages. We address that issue because it has been fully briefed by the parties and is likely to arise in the new trial. We conclude that damages are not available in a quo warranto action.

The following facts are relevant to the issue of whether damages are available in a quo warranto action. Both in the trial court and on appeal, the plaintiffs have characterized this as an action in the nature of quo warranto brought pursuant to § 52-491. In the prayer for relief attached to the operative complaint, the plaintiffs seek, inter alia, “[m]oney damages, consisting of back pay, front pay, seniority rights, pension benefits and all other benefits that would have accrued to plaintiffs had they been hired as Firefighters in September, 1997 and . . . other money damages within the jurisdictional limits of the Superior Court. . . .” In their appellate brief, the plaintiffs argue that we should reverse the judgment of the trial court and order it to award them back pay and benefits. Pursuant to our order at oral argument, the parties submitted supplemental briefs on the availability of damages in a quo warranto action.

Traditionally, the sole issue in a quo warranto action is the defendants’ right to hold the contested office, and the plaintiffs’ right to the office is outside the scope of the proceedings. “A quo warranto proceeding under the common law lies only to test the defendant’s right to hold office de jure.” Cheshire v. McKenney, supra, 182 Conn. 256. “A successful quo warranto action unseats an illegal office holder and declares the position vacant. It does not place the rightful claimant into the office. If the claimant can thereafter establish his clear right to the position, he may bring an action in mandamus to seek his own appointment.” New Haven Firebird Society v. Board of Fire Commissioners, 219 Conn. 432, 436, 593 A.2d 1383 (1991); see also Gesmonde, Pietrosimone, Sgrignari, Pinkus & Sachs v. Waterbary, 231 Conn. 745, 748 n.5, 651 A.2d 1273 (1995); Carleton v. Civil Service Commission, supra, 10 Conn. App. 215-16.

Because a quo warranto action does not determine the plaintiffs’ right to the contested office, there is no basis for an award of damages in such a case. The sole issue is the defendants’ right to hold office de jure, and the remedy on the failure of any defendant to carry the burden of proof is that defendant’s ouster.

The judgment is reversed and the case is remanded so that the proper parties may be joined and a new trial conducted consistent with this opinion.

In this opinion the other judges concurred.

       The defendants are the fire department of the city of Norwalk, the city of Norwalk, Lee Cogswell and Cogswell Associates.

       The nine individuals, as named in the complaint, are Michael Andreoli, Peter Brown, Louis Dacunto, James Defelice, Danielle Fay, Brian Kilcoyne, Charles Papadopoulos, Jason Penna and John Petrides.

       The five individuals named in the plaintiffs’ brief are Peter Brown, Louis Dacunto, Brian Kilcoyne, Charles Papadopoulos and Jason Penna.

       Our Supreme Court has held that rank and file firefighters are public officers for purposes of a quo warranto proceeding. See New Haven Firebird Society v. Board of Fire Commissioners, 219 Conn. 432, 437, 593 A.2d 1383 (1991).

       The prayer for relief also includes requests for injunctive relief, attorney’s fees, costs and removal of the allegedly ineligible firefighters.


author: FOTI, J.

text:
    TUXIS-OHR’S, INC. v. LOUIS GHERLONE ET AL.
    (AC 22392)
    Lavery, C. J., and Foti and Dupont, Js.

      Argued January 13
    officially released April 1, 2003

      Vincent T. McManus, Jr., for the appellant (plaintiff).

      Bradley K. Cooney, for the appellees (named defendant et al.).
   Opinion

FOTI, J.

The defendants appeal from the judgment of the trial court, rendered after a trial to the court, in favor of the plaintiff, Tuxis-Ohr’s, Inc., doing business as Astro Oil. The court concluded, on the basis of equitable subrogation, that the defendant corporation, Louis Gherlone Tree Farms and Excavating, Inc. (corporation), is indebted to the plaintiff because the plaintiff paid certain state fuel oil taxes for which the corporation had the primary obligation to pay. The court further concluded that the defendants Louis Gherlone and Linda Gherlone are personally indebted under a guarantee to the plaintiff for the corporation’s debts. The defendants claim on appeal that the court’s conclusions were improper because (1) General Statutes § 12-458 places the legal burden on the plaintiff to assess, collect and pay such taxes, and the plaintiff failed to comply with its statutory obligations, (2) there was no legal basis for the court’s finding that the defendants should have marked “off-road use” on the fuel delivery tickets that were submitted to the plaintiff each time the defendants obtained number two heating oil and (3) the plaintiffs failure to include the required taxes in its invoice bills to the defendants during the last four years precluded the coiporation from filing a claim for tax refunds to which it would have been entitled. We affirm the judgment of the trial court.

The court found the following facts. The plaintiff is a wholesale distributor of number two heating oil. Number two heating oil is subject to state taxes when used for the purpose of fueling off-road heavy machinery; however, it is exempt from such taxes when used to heat homes. On October 25, 1995, for the purpose of securing credit from the plaintiff for fuel oil sales to the corporation, Louis Gherlone and Linda Gherlone executed a personal guarantee for any debts incurred by the corporation to the plaintiff. The plaintiff, through its president, James Vitale, entered into an agreement with the defendants to sell oil to the corporation. The parties formed an understanding that the primary purpose for the oil would be to fuel the corporation’s off-road machinery — a taxable usage under state law.

On the basis of Louis Gherlone’s conversations with Vitale, the defendants knew or should have known that their usage of the number two heating oil was taxable. They also knew or should have known that the fuel delivery tickets, which the defendants’ agent was required to sign when obtaining oil from the wholesale delivery terminal, needed to be marked with the notation “off-road use.” Such a notation on the fuel delivery tickets was necessary to alert the plaintiff, for the purpose of proper billing, whether state taxes needed to be collected on a particular sale.

From 1995 through 1999, the corporation obtained number two heating oil from the plaintiff. It used the oil primarily for the taxable purpose of fueling its off-road excavating machines. The defendants failed to ensure that their agent followed the procedure for properly marking the delivery tickets as “off-road use.” Consequently, the plaintiff did not include the required state taxes for off-road usage when billing the corporation for the oil.

The invoices that the plaintiff generated and sent to the defendants were all marked “dyed diesel fuel, nontaxable use only, penalty for taxable use.” The fuel delivery tickets and signs on the fuel pumps at the terminal from which the corporation obtained the number two heating oil also contained similar warnings noting a penalty for taxable usage. Between 1995 and 1999, the corporation received no less than thirty-nine invoices from the plaintiff, each clearly noting that the fuel purchased was number two heating oil and that there was a penalty for taxable use. The defendants never attempted to notify the plaintiff that the billing was incorrect in any way.

The plaintiff was subject to regular periodic audits by the department of revenue services. In December, 1999, the department conducted an audit that resulted in an assessment of state gross receipt tax of $3666.70 and a state diesel fuel tax of $26,824.68 on the plaintiffs account with the corporation. After adjustments, the plaintiff paid $23,382.32 to the state for the corporation’s account as the combined taxes assessed against the plaintiff by the department.

Despite requests from the plaintiff, the defendants refused to reimburse the plaintiff. Consequently, the plaintiff filed a two count amended complaint against the defendants. Count one alleged that the corporation was liable for reimbursement of the taxes paid, and count two asserted the liability of the Gherlones under the valid personal guarantee. The court rendered judgment in favor of the plaintiff against the corporation in the amount of $23,382.32 plus interest of $3721.49 pursuant to General Statutes § 37-3a, and jointly and severally against the individual defendants in the amount of $23,382.32 plus interest of $6418.75 and attorney’s fees of $13,850 pursuant to the terms of the personal guarantee. This appeal followed.

Before addressing the defendants’ specific claims, we first set forth our standard of review. “With regard to the trial court’s factual findings, the clearly erroneous standard of review is appropriate.” Empire Paving, Inc. v. Milford, 57 Conn. App. 261, 265, 747 A.2d 1063 (2000). “A factual finding is clearly erroneous when it is not supported by any evidence in the record or when there is evidence to support it, but the reviewing court is left with the definite and firm conviction that a mistake has been made. . . . Simply put, we give great deference to the findings of the trial court because of its function to weigh and interpret the evidence before it and to pass upon the credibility of witnesses.” (Citation omitted; internal quotation marks omitted.) American Heritage Agency, Inc. v. Gelinas, 62 Conn. App. 711, 717, 774 A.2d 220, cert. denied, 257 Conn. 903, 777 A.2d 192 (2001).

“The trial court’s legal conclusions are subject to plenary review. [Wjhere the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision . . . .” (Internal quotation marks omitted.) Aubin v. Miller, 64 Conn. App. 781, 786, 781 A.2d 396 (2001).

I

The defendants first claim that it was improper for the court to conclude that the plaintiff was entitled to reimbursement by the defendants because § 12-458 places the legal burden on the plaintiff to assess, collect and pay to the state any taxes that were applicable to the subject transactions and that the plaintiff failed to comply with its statutory obligations. We disagree.

The interpretation of a statute, or its applicability in a particular action, presents a question of law for the court, and our review, therefore, is plenary. Original Grasso Construction Co. v. Shepherd, 70 Conn. App. 404, 418, 799 A.2d 1083, cert. denied, 261 Conn. 932, 806 A.2d 1065 (2002). We conclude that our Supreme Court’s decision in Wesson, Inc. v. Hychko, 205 Conn. 51, 529 A.2d 714 (1987), is dispositive of the defendant’s first claim.

The defendants correctly assert that § 12-458 applies to the subject fuel oil transactions and that along with General Statutes § 12-457, it places the responsibility on distributors to assess, collect and pay the appropílale state fuel taxes. That responsibility, however, is placed on the distributors as an agent of the state, not as a taxpayer. See Wesson, Inc. v. Hychko, supra, 205 Conn. 55. In Wesson, Inc., our Supreme Court found that the legislature’s intent in enacting § 12-458 was to impose the burden of that tax not on the distributor, but on the fuel purchaser or user, and that the distributor was responsible only for collection and payment “for the account of the purchaser . . . .” (Internal quotation marks omitted.) Id. Despite the defendants’ arguments implying the contrary, that burden does not shift to the distributor simply by virtue of the distributor’s failure to comply fully with statutory billing procedures.

The Wesson, Inc., court held that a distributor that was compelled by the state to pay a tax that it had failed to include in its invoice to a buyer because it mistakenly believed the sale was not taxable is entitled to recover from the buyer the taxes it paid on the buyer’s behalf. Id., 59. In so holding, the court stated: “We are not persuaded that the absence of an express statutory provision for reimbursement of the motor vehicle fuel tax forecloses the distributor from resorting to appropriate equitable remedies where he has been legally compelled to pay a tax the incidence of which the legislature intended to impose upon the purchaser. Where property of one person is used in discharging an obligation owed by another . . . under such circumstances that the other would be unjustly enriched by the retention of the benefit thus conferred, the foimer is entitled to be subrogated to the position of the obligee .... This doctrine is inapplicable where the payment has been made officiously, i.e., where the circumstances do not justify the interference with another’s affairs resulting from conferring a benefit upon him. ... A person does not act officiously when he pays another’s debt under a mistake or when he has discharged an obligation for which he is also liable, but which another should equitably have paid.” (Citation omitted; internal quotation marks omitted.) Id., 56-57.

“The payment of taxes by one not primarily responsible therefor is a situation where subrogation has been permitted.” Id., 57. Additionally, “[w]e have upheld the power of a court of equity to grant relief from the consequences of an innocent mistake although the mistake was not unmixed with negligence . . . where the failure to do so would allow one to enrich himself unjustly at the expense of another.” (Citation omitted; internal quotation marks omitted.) Cottiero v. Ifkovic, 35 Conn. App. 682, 698, 647 A.2d 9 (Lavery, J., dissenting), cert. denied, 231 Conn. 938, 651 A.2d 262 (1994).

In the present case, as in Wesson, Inc., the corporation was the purchaser and consumer of the subject fuel oil and, therefore, had the primary responsibility for paying the appropriate taxes. The defendants make much of the fact that when Vitale agreed to supply fuel to them, there was an initial understanding that the oil sold would be used to fuel off-road machinery. The defendants contend that because the plaintiff was aware of the defendants’ intended use for the oil, it should have properly assessed and collected the taxes from them. According to evidence adduced at trial, however, the plaintiff’s billing office, in preparing the defendants’ bill, relied wholly on whether the fuel delivery tickets had been marked “off-road use” in determining if the corresponding sale was taxable. Additionally, there was evidence that the defendants were aware of that procedure and failed to comply. Mistakenly believing that the sales were not taxable, the plaintiff failed to bill the defendants properly. We recognize that, unlike the situation in Wesson, Inc., that mistake in billing was perhaps not unmixed with some negligence on the part of the plaintiff. Despite that distinction, the defendants would be unjustly enriched at the expense of the plaintiff if we allowed them to essentially pass their tax liability to the plaintiff on the basis of that mistake.

Because the defendants’ claim is in direct conflict with our Supreme Court’s holding in Wesson, Inc., it fails as a matter of law. We conclude, therefore, that the court was legally and logically correct to have found that the legal burden of paying the tax was on the defendants.

II

The defendants next claim that the court improperly found that they had an obligation to “report in writing [their] intended use of the subject fuel oil each time the fuel oil was received — without any proper legal basis to do so.” The defendants’ claim challenges the court’s finding that “Louis Gherlone knew or should have known that the fuel delivery tickets which his business submitted to the plaintiff for billing should have been marked ‘off-road use.’ ” The defendants’ claim suggests that given the court’s resolution of the action in favor of the plaintiff on the basis of that finding and the defendants’ failure to mark the delivery tickets properly, the court, in effect, imposed a legal obligation on the defendants for which there was no legal basis. The defendants offer two arguments in support of that claim.

First, the defendants contend that the court made its finding on the basis of testimony admitted in violation of the parol evidence rule. The defendants argue that an obligation to mark the delivery tickets was neither a term of their application to open an account with the plaintiff nor of the accompanying personal guar antee and that those documents represent the entire contractual relationship of the parties. The defendants further argue that the court violated the parol evidence rule because it made that finding on the basis of Vitale’s testimony that the plaintiffs procedure of marking the delivery tickets was raised during a conversation he had with Louis Gherlone. Although we question the applicability of the parol evidence rule in this case, we decline to review the claim, as it was not properly preserved for appeal.

“Our rules of practice require that in order to preserve a ground for appeal, counsel must object to the court’s ruling on the admission of evidence, state the grounds upon which the objection is made and take exception to the ruling. Practice Book [§ 5-5]. These requirements are not simply formalities. . . . They serve to alert the court to potential error while there is still time to act. . . . We are loath to assign error to a court’s evidentiary ruling on the basis of objections never raised at trial.” (Citations omitted.) Sternberg v. Infante, 13 Conn. App. 473,475-76, 537 A.2d 523 (1988) (applying that principle to claimed violation of parol evidence rule). Other state appellate courts have similarly concluded that a failure to object to the admission of evidence violative of the parol evidence rule amounts to a waiver of the protection of that rule. Pao Ch’en Lee v. Gregoriou, 50 Cal. 2d 502, 326 P.2d 135 (1958); Ross v. Florida Sun Life Ins. Co., 124 So. 2d 892 (Fla. App. 1960); Nevada State Bank v. Snowden, 85 Nev. 19, 449 P.2d 254 (1969); Slovak Catholic Sokol v. Foti, 13 N.J. Super. 458, 80 A.2d 636 (1951); see generally annot., 81 A.L.R.3d 249 (1977).

The court heard testimony from Vitale and Louis Gherlone concerning conversations between the two that occurred after the making of the application and personal guarantee. Both parties elicited such testimony. At no point during the trial did the defendants’ counsel object that such testimony was improper parol evidence or that it was in any other way inadmissible and should not be considered by the court. Because the issue was not preserved properly at trial, we will not consider the defendants’ claim that such testimony violated the parol evidence rule.

The defendants’ second argument is that any agreement made by Louis Gherlone regarding marking the delivery tickets was not supported by additional consideration and, therefore, could not provide a legal basis for the court’s finding. That claim is without merit, as it raises a defense to the enforcement of an agreement at law in an action resolved on equitable principles. Notwithstanding the merits of the claim, however, the defendants also have failed to provide an adequate record from which to review such a claim.

“It is the appellant’s duty to provide an adequate record on which to base an appeal. See Practice Book §§ 60-5, 61-10. Our role is not to guess at possibilities, but to review claims based on a complete factual record developed by a trial court. . . . Without the necessary factual and legal conclusions furnished by the trial court, either on its own or in response to a proper motion for articulation, any decision made by us respecting this claim would be entirely speculative.” (Internal quotation marks omitted.) Christian v. Gouldin, 72 Conn. App. 14, 24-25, 804 A.2d 865 (2002). Whether an agreement was supported by adequate consideration is a factual inquiry to be made by the trier of fact in determining whether an agreement is legally binding. The defendants never raised that issue to the court either at trial, in their posttrial brief or in their motion for articulation. Nothing in the court’s memorandum of decision or the record provides us with any factual or legal conclusions relevant to that issue. Accordingly, the record is inadequate for our consideration of the claim and, therefore, we decline to afford it review.

Ill

The defendants’ final claim is that the plaintiffs failure to include the taxes in its invoices to them during the last four years precluded them from paying the taxes and then filing a timely claim for a refund, which they would have been entitled to under General Statutes § 12-459. The defendants contend that due to that alleged prejudice, it would be inequitable to require them to reimburse the plaintiff without offsetting for the amount of the taxes it could have avoided if it had billed on time. We disagree.

In support of their claim, the defendants rely on the following dicta from a footnote in Wesson, Inc.: “It is possible that the delay caused by the plaintiffs failure to include the tax in its invoice at the time of the sale might have prevented the defendant from filing a claim for a refund of any portion of the tax paid on exempt fuel, such as that not used in motor vehicles licensed or required to be licensed to operate upon the public highways of this state .... No such claim of prejudice has been pleaded or briefed nor does the stipulation contain the facts necessary for consideration of such a claim.” (Citations omitted; internal quotation marks omitted.) Wesson, Inc. v. Hychko, supra, 205 Conn. 60 n.4.

Equitable subrogation is a remedy that “arises strictly as a matter of equity . . . .” Wasko v. Manella, 74 Conn. App. 32, 36, 811 A.2d 727 (2002), cert. granted on other grounds, 262 Conn. 942, 815 A.2d 674 (2003). The defendants’ claim therefore challenges the court’s fashioning of an equitable remedy. “The determination of what equity requires in a particular case, the balancing of the equities, is a matter for the discretion of the trial court. . . . Our standard of review is whether the trial court abused its discretion. ... In determining whether the trial court has abused its discretion, we must make every reasonable presumption in favor of the correctness of its action. . . . Our review of a trial court’s exercise of the . . . discretion vested in it is limited to the questions of whether the trial court correctly applied the law and could reasonably have reached the conclusion that it did.” (Citations omitted; internal quotation marks omitted.) Kelley v. Tomas, 66 Conn. App. 146, 155-56, 783 A.2d 1226 (2001).

In considering the defendants’ claim, the court found that they were on notice that taxes were due for their use of the fuel from both the billing invoices and from Louis Gherlone’s conversation with Vitale. The court also found that the defendants’ failure to mark the delivery tickets properly contributed to the error in billing. There is ample evidence in the case to support those findings. In agreeing to sell oil to the defendants, the plaintiff provided a reasonable procedure for ensuring proper assessment, billing and collection of the applicable taxes. The defendants, however, failed to follow that procedure for ensuring that the taxes were billed properly. They cannot now claim prejudice from the plaintiffs failure to include taxes in the billing invoices when their failure to follow procedure was the root cause of that omission. We therefore conclude, given the facts, that the court did not abuse its discretion in rejecting the defendants’ claim that their inability to file for a tax refund should bar the plaintiffs equitable relief.

The judgment is affirmed.

In this opinion the other judges concurred.

       Named as defendants were Louis Gherlone Tree Farms and Excavating, Inc., also known as Louis Gherlone Excavating, Inc., as well as its president, Louis Gherlone, and its secretary, Catherine Gherlone, as joint guarantors of the corporation's debt. Prior to trial, Linda Gherlone was substituted as a defendant in place of Catherine Gherlone. Thereafter, the action was withdrawn as against Catherine Gherlone.

       The defendants do not challenge the validity of the personal guarantee or its application by the court.

       The claims as stated in the defendants’ statement of issues do not correspond to the analysis presented in their brief. We have interpreted the defendants’ claims, therefore, in a manner consistent with the arguments and analyses presented in their brief.

       Only a small portion of the oil was used for the nontaxable purpose of home heating.

       By its terms, the guarantee extended liability to interest, attorney’s fees and costs associated with the plaintiffs effort to collect debts due.

       We note that the defendants neither sought review of the court’s determination of the amount of debt owed to the plaintiff nor contested the interest awarded.

       General Statutes § 12-458 provides in relevant part: “(a) (I) Each distributor shall, on or before the twenty-fifth day of each month, render a return to the commissioner. Each return shall be signed by the person required to file the return or by his authorized agent but need not be verified by oath. Any return required to be filed by a corporation shall be signed by an officer of such corporation or his authorized agent. Such return shall state the number of gallons of fuel sold or used by him during the preceding calendar month, on forms to be furnished by the commissioner, and shall contain such further information as the commissioner shall prescribe. The commissioner may make public the number of gallons of fuel sold or used by the distributor, as contained in such report, notwithstanding the provisions of section 12-15 or any other section. For purposes of this section, fuel sold shall include but not be limited to the transfer of fuel by a distributor into a receptacle from which fuel is supplied or intended to be supplied to other than such distributor’s motor vehicles.
      “(2) On said date and coincident with the filing of such return each distribuí or shall pay to the commissioner for the account of the purchaser or consumer a tax (A) on each gallon of such fuels sold or used in this state during the preceding calendar month ....
      * ** *
      “(4) Each distributor, when making a taxable sale, shall furnish to the purchaser an invoice showing the quantities of fuel sold, the classification thereof under the provisions of this chapter and the amount of tax to be paid by the distributor for the account of the purchaser or consumer. . . .”

       General Statutes § 12-457 provides: “Each distributor shall keep an accurate record of the number of gallons of such fuels purchased, manufactured, compounded or received by him, the date of any such purchase and the number of gallons sold or used by him. He shall deliver, with each consignment or delivery of such fuels to any purchaser within this state, a written statement of the names and addresses of the vendor and vendee, the number of gallons sold and the date of sale and delivery. Such written statement shall set forth whether or not the required state tax has been charged thereon. Each such record and such statement shall be preserved by such distributor and such purchaser, respectively, for a period of at least three years and shall be offered for inspection upon demand of the commissioner or any officer or agent designated by him. The commissioner shall cause such records and statements to be regularly audited as he shall prescribe and each distributor shall satisfactorily account for all such fuels as have been sold or used by him. Any such fuels unaccounted for by the distributor for which a satisfactory explanation cannot be submitted shall be construed to have been sold or used.”

       General Statutes § 12-459 provides in relevant part: “(a) The payment of the tax provided for by section 12-458 shall be subject to refund as provided herein when such fuel has been sold for use of any of the following: (1) Any person, other than one engaged in the business of fanning, when such fuel is used other than in motor vehicles licensed or required to be licensed to operate upon the public highways of this state, except that no tax paid on fuel which is taken out of this state in a fuel tank connected with the engine of a motor vehicle and which is consumed without this state shall be refunded ....
      “(b) All claims for refund shall be accompanied by original invoices or sales receipts or other statements of fact, under penalty of false statement, showing, to the satisfaction of the commissioner, that the tax has been paid on the fuel involved in such refund, and any other information which is deemed necessary by the commissioner for the determination of such claims. Any claim for refund of said tax for fuel used during any calendar year shall be filed with the commissioner on or before May thirty-first of the succeeding year. Such claim shall be on a form prescribed by the commissioner which shall contain such information as he deems necessary for the determination of such claim. ...”


author: LAVERY, C. J.

text:
    STATE OF CONNECTICUT v. JASON MANN
    (AC 22402)
    Lavery, C. J., and Schaller and Bishop, Js.
    Argued September 17, 2002
    officially released April 1, 2003

      Glenn W. Falk, special public defender, with whom, on the brief, was Michael T. Morley, law student intern, for the appellant (defendant).

      Christopher T. Godialis, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Maura K. Coyne, deputy assistant state’s attorney, for the appellee (state).
   Opinion

LAVERY, C. J.

The defendant, Jason Mann, appeals from the judgment of conviction, rendered after a trial to the court, of possession of a narcotic substance with intent to sell by a person who is not drag-dependent in violation of General Statutes § 2 la-278 (b), possession of a controlled substance in violation of General Statutes § 2 la-279 (c) and possession of a narcotic substance with intent to sell within 1500 feet of a school in violation of General Statutes § 21a-278a (b). On appeal, the defendant claims that the court improperly denied his motion to suppress the crack cocaine and marijuana seized from a search of his person during a warrantless police entry into his apartment in violation of his fourth amendment rights. We agree and reverse the judgment of the trial court.

The following facts are not disputed. At approximately 4:25 a.m. on October 3, 2000, three uniformed New Haven police officers, Christopher Rubino, Julie Esposito and Victor Fuentes, responded to a call that a dispute was taking place on Stevens Street near Sylvan Avenue in New Haven. When the officers arrived in the area, they spoke to a woman who identified herself as Tina Jones. Jones admitted having been part of the dispute on Stevens Street and volunteered information about drug activity in the area She told the officers that an apartment at 130 Sylvan Avenue had just received a shipment of drugs, that the recipient of the drugs was a black male, that “they dealt everything out of that apartment” and that she was unsure as to whether there were weapons in the apartment. Jones described the apartment as being on the first floor, last door on the left, when the building is entered from the rear.

After receiving the information from Jones, the officers proceeded to the apartment at 130 Sylvan Avenue. They entered 130 Sylvan Avenue from the unlocked rear door. At approximately 5 a.m., Rubino knocked on the door of the apartment described by Jones. Although in uniform, the officers did not at anytime announce themselves as police. The defendant responded by opening the door one and one-half to two feet, which was wide enough for the defendant’s entire body to be visible. Upon opening the door and seeing the police, the defendant attempted to close the door using his left hand and the left side of his body. Simultaneously, the defendant placed his right hand into his right pocket. When Rubino saw the defendant place his right hand in his pocket, he drew his gun, entered the apartment, placed the defendant against a wall and conducted what he described as “a Terry patdown” for weapons. No weapons were found, but Rubino did, in conducting the patdown, determine that the defendant’s right pants pocket “had a quantity of plastic baggies with little rocklike things in them,” which Rubino identified as possible narcotics. After completing the patdown and assuring himself that the defendant had no weapons, Rubino reached into the defendant’s right pocket and withdrew its contents, which included fifty small bags containing crack cocaine and four small bags containing marijuana. Thereafter, the defendant was arrested and charged with various offenses relating to his possession of the crack cocaine and the marijuana.

The defendant filed a motion to suppress the crack cocaine and the marijuana. After hearing evidence on the defendant’s motion, the court issued an oral ruling denying the motion because it found that the exigent circumstances exception to the warrant requirement permitted the officers warrantless entry into the apartment. The court also found that the police had no probable cause with respect to the defendant, that the defendant had a legitimate expectation of privacy in the apartment at 130 Sylvan Avenue and that normally, a warrant would have been required to justify the officers’ entry.

The defendant was convicted of possession of a narcotic substance with intent to sell by a person who is not drug-dependent, possession of a controlled substance and possession of a narcotic substance with intent to sell within 1500 feet of a school. The court imposed a total effective sentence of twelve years imprisonment and five years probation. This appeal followed.

On appeal, the defendant claims that his motion to suppress was denied improperly. Specifically, the defendant argues that the court improperly determined that the exigent circumstances exception to the warrant requirement justified the officers’ warrantless entry into his apartment. We agree.

We first set forth our standard of review. “Our standard of review of a trial court’s findings and conclusions in connection with a motion to suppress is well defined. A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record .... [W]here the legal conclusions of the court are challenged, [our review is plenary, and] we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision . . . .” (Internal quotation marks omitted.) State v. Clark, 255 Conn. 268, 279, 764 A.2d 1251 (2001); see also State v. Smith, 257 Conn. 216, 222, 777 A.2d 182 (2001).

We note first that the “physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.” (Internal quotation marks omitted.) Payton v. New York, 445 U.S. 573, 585, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980). Moreover “[t]he right of officers to thrust themselves into a home is ... a grave concern, not only to the individual but to a society which chooses to dwell in reasonable security and freedom from surveillance.” (Internal quotation marks omitted.) State v. Brosnan, 221 Conn. 788, 806-807, 608 A.2d 49 (1992), quoting Johnson v. United States, 333 U.S. 10, 14, 68 S. Ct. 367, 92 L. Ed. 436 (1948).

“In Payton v. New York, supra, [445 U.S. 573] the United States Supreme Court reaffirmed the overarching significance, under the fourth amendment, of the sanctity of the home. . . . The court stated . . . The Fourth Amendment protects the individual’s privacy in a variety of settings. In none is the zone of privacy more clearly defined than when bounded by the unambiguous physical dimensions of an individual’s home — a zone that finds its roots in clear and specific constitutional terms: The right of the people to be secure in their . . . houses . . . shall not be violated. That language unequivocally establishes the proposition that [a]t the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.” (Citations omitted; internal quotation marks omitted.) State v. Brosnan, supra, 221 Conn. 806, quoting Payton v. New York, supra, 589-90. The United States Supreme Court also made it clear that “[i]n terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.” Payton v. New York, supra, 590.

“It is [thus] a fundamental principle of search and seizure law that, in the absence of exigent circumstances and probable cause for arrest, a person’s house may not be entered without a warrant, and that warrantless searches and seizures inside a house are presumptively unreasonable.” State v. Gant, 231 Conn. 43, 63, 646 A.2d 835 (1994), cert. denied, 514 U.S. 1038, 115 S. Ct. 1404, 131 L. Ed. 2d 291 (1995), citing Payton v. New York, supra, 445 U.S. 586; see also Kirk v. Louisiana, 536 U.S. 635, 638, 122 S. Ct. 2458, 153 L. Ed. 2d 599 (2002).

In the present case, it is undisputed that Rubino, upon observing the defendant reach his hand into his pocket while attempting to close the door, pushed the defendant further inside the apartment and against an interior wall. Rubino thus crossed the threshold of the defendant’s apartment and physically seized the defendant inside his apartment. In its oral decision, the court concluded that the police did not, at any time, have probable cause to believe that the defendant had committed or was about to commit a crime. The court also concluded, however, that the exigent circumstances exception to the warrant requirement justified the officers’ entry into the defendant’s apartment and, therefore, it denied the defendant’s motion to suppress. The court’s conclusions are inconsistent because warrantless searches and seizures conducted under the exigent circumstances exception to the warrant requirement are constitutionally impermissible unless supported by probable cause. United States v. Cresta, 825 F.2d 538, 553 (1st Cir. 1987), cert. denied sub nom. Impemba v. United States, 486 U.S. 1042, 108 S. Ct. 2033, 100 L. Ed. 2d 618 (1988); see also Kirk v. Louisiana, supra, 536 U.S. 638; State v. Gant, supra, 231 Conn. 63-64.

Because it is undisputed that the officers did not have probable cause with respect to the defendant, we conclude that the exigent circumstances exception to the warrant requirement is inapplicable to the present case and did not justify the officers’ entry into the defendant’s apartment. The state, nevertheless, contends that the officers’ warrantless entry into the defendant’s apartment and subsequent patdown of the defendant were permissible because (1) pursuant to United States v. Santana, 427 U.S. 38, 96 S. Ct. 2406, 49 L. Ed. 2d 300 (1976), and its progeny, the officers’ actions were justified as a patdown for weapons pursuant to Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), and (2) the emergency doctrine justified the officers’ entry into the defendant’s apartment. We discuss those arguments in turn.

The state first contends that the officers’ actions were justified as a Terry-style patdown for weapons under United States v. Santana, supra, 427 U.S. 38, and its progeny. Specifically, the state in its brief contends that Santana and State v. Santiago, 224 Conn. 494, 619 A.2d 1132 (1993), support its position that ”a person may be subjected to a patdown for weapons when they voluntarily open their apartment door, in response to a knock thereon, and expose themselves to public view,” provided that the requirements of Terry v. Ohio, supra, 392 U.S. 1, are satisfied; that is, that the “police have a reasonable and articulable suspicion that criminal activity is afoot.”

In United States v. Santana, supra, 427 U.S. 38, the police, with probable cause but without a warrant, drove to within fifteen feet of the defendant’s home. Id., 40, 42. The defendant was standing in the doorway of her house when the police arrived. Id., 40. The police exited their van, shouting, “[P]olice,” and displaying identification. Id. As the police approached, the defendant retreated into the vestibule of her home. Id. The police followed her through the open door and arrested her inside her home. Id. In determining that Santana’s arrest was proper and did not violate her fourth amendment rights, the court held that (1) when the police officers first sought to arrest the defendant, she was in a public place and (2) the officers’ entry into her home, to complete the arrest, was proper under the “hot pursuit” exception to the warrant requirement. Id., 42-43.

In reaching its conclusion that the defendant in Santana was in a public place when the officers first sought to arrest her, the court concluded that by standing in her doorway, the defendant was “as exposed to public wew, speech, hearing, and touch as if she had been standing completely outside her house,” and that she was thus “not in an area where she had any expectation of privacy.” Id., 42. Santana thus has come to stand for a kind of doorway exception or principle whereby “a person standing in the doorway of a house is in a public place, and hence subject to arrest without a warrant permitting entry of the home.” (Internal quotation marks omitted.) Illinois v. McArthur, 531 U.S. 326, 335, 121 S. Ct. 946, 148 L. Ed. 2d 838 (2001); see also LaLonde v. County of Riverside, 204 F.3d 947, 955 (9th Cir. 2000).

Although the state does not articulate its argument, the heart of its claim is that United States v. Santana, supra, 427 U.S. 38, applies to this case and that the pat,down of the defendant, therefore, was conducted lawfully in a “public place.” The state would have us believe that because the defendant voluntarily opened his door in response to a knock by the police and thus “exposed himself to public view,” he was in a public place when the officers seized him and performed a Terry patdoAvn for weapons. For us to agree with the state, we would have to conclude not only that Santana is applicable to this case, but also that the officers had a reasonable and articulable suspicion to believe that the defendant was about to commit a crime.

In determining whether the Santana “doorway exception” applies in any given case, the key inquiry is whether the defendant has exhibited a legitimate expectation of privacy in the place where he is seized. See United States v. Santana, supra, 427 U.S. 42 (defendant’s doorway held to be “public place” because by standing in doorway, “as exposed to public view, speech, hearing, and touch as if she had been standing completely outside her house,” she was not in an area where she had exhibited any expectation of privacy); Sparing v. Village of Olympia Fields, 266 F.3d 684, 689 (7th Cir. 2001), cert. denied, 536 U.S. 958, 122 S. Ct. 2660, 153 L. Ed. 2d 835 (2002); United States v. Gori, 230 F.3d 44, 53 (2d Cir. 2000), cert. denied sub nom. Pichardo v. United States, 534 U.S. 824, 122 S. Ct. 62, 151 L. Ed. 2d 29 (2001); see also State v. Santiago, supra, 224 Conn. 501-502, 510 (Borden, J., dissenting). That is because the “capacity to claim the protection of the Fourth Amendment depends . . . upon whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place.” (Internal quotation marks omitted.) Minnesota v. Olson, 495 U.S. 91, 95, 110 S. Ct. 1684, 109 L. Ed. 2d 85 (1990). An expectation of privacy is legitimate “if the person concerned has exhibited an actual (subjective) expectation of privacy and the expectation is one that society is prepared to recognize as reasonable.” (Internal quotation marks omitted.) Hudson v. Palmer, 468 U.S. 517, 525 n.7,104 S. Ct. 3194, 82 L. Ed. 2d 393 (1984); see also United States v. Knotts, 460 U.S. 276, 280-81, 103 S. Ct. 1081, 75 L. Ed. 2d 55 (1983); State v. Rodriguez, 223 Conn. 127, 132, 613 A.2d 211 (1992).

“Following Santana and Pay ton, the federal and state courts have struggled with cases in which the police have made warrantless, probable cause arrests at the doorway of a defendant’s home following the opening of the door by the defendant in response to a knock on the door by the police. The focus of the inquiry in these cases has been whether the principles of Santana or Payton apply — whether the arrest was in a public place in which the defendant had no reasonable expectation of privacy, or whether the arrest was made in the home, a place in which the defendant had the highest expectation of privacy.

“Not surprisingly, the cases have reached a variety of results, and break down along three principal lines. One line of cases holds generally that an arrest of the defendant at the doorway of the defendant’s home (or hotel or motel room) is valid under Santana, irrespective of whether the defendant opened the door in response to a police summons (e.g., by knocking on the door) and irrespective of whether the defendant was precisely on the threshold or just inside it. . . .

“A second line of cases holds generally that what would otherwise be a valid doorway arrest under Santana may be rendered illegal under Pay ton because the defendant opened the doorway in response to coercive activity of the police outside, such as flooding the home with spotlights and calling to the defendant with bullhorns, or in response to deception, such as the police misrepresenting their identity when the defendant asked who was there before opening the door. . . .

“The third line of cases focuses both on whether the defendant opened the door in response to a summons by the police and on the defendant’s conduct after opening the door. These cases hold generally that, if a defendant opens the door in response to a police knock and acquiesces to the ensuing arrest, the arrest is valid under Santana, but that a defendant, by merely opening the door in response to a knock by the police, does not, without more, surrender a reasonable expectation of privacy in the home under Payton. See, e.g., United States v. Berkowitz, 927 F.2d 1376 (7th Cir. 1991) [cert. denied, 502 U.S. 845, 112 S. Ct. 141, 116 L. Ed. 2d 108 (1991)] . . . .” (Citations omitted; emphasis in original.) State v. Santiago, supra, 224 Conn. 508-10 (Borden, J., dissenting).

We are persuaded that this third line of cases is most analogous to the present case because those cases focus on the defendant’s reasonable expectation of privacy in light of his conduct after opening the door in response to a knock by the police. We therefore focus our inquiry on the defendant’s reasonable expectation of privacy in light of his conduct after opening the door in response to the knock by the police.

In the present case, the defendant opened his door in response to the 5 a.m. knock of a police officer. Immediately upon seeing the officers at his door, the defendant attempted to close the door. “[T]here is no place where a person’s expectation of privacy is greater than in his own home. ... A person does not abandon this privacy interest in his home by opening his door from within to answer a knock. Answering a knock at the door is not an invitation to come in the house. We think society would recognize a person’s right to choose to close his door on and exclude people he does not want within his home. This right to exclude is one of the most — if not the most — important components of a person’s privacy expectation in his home.” (Citation omitted.) United States v. Berkowitz, supra, 927 F.2d 1387; see also United States v. Oaxaca, 233 F.3d 1154, 1157 (9th Cir. 2000) (rejecting government’s argument that “[law enforcement] agents did not need a warrant because [the defendant] had left his door open, which exposed him to people outside” and stating that “the argument that anyone who is visible from the street implicitly invites the Government to enter his home not only deeply offends common sense, but flies in the face of well-established law”); United States v. McCraw, 920 F.2d 224, 228 (4th Cir. 1990) (person does not surrender expectation of privacy or consent to officers’ entry by partially opening door to determine identity of officers knocking on door).

State v. Santiago, supra, 224 Conn. 496-97, does not require a different result. In that case, a police officer knocked on the defendant’s door while investigating a complaint that the defendant had threatened a neighbor with a handgun. The defendant opened his door and stood directly in his doorway while speaking with the officer. Id., 497. Thereafter, the defendant consented to remain in his doorway while the officer consulted with his supervisor. Id., 497, 502. When the officer returned, the defendant was still standing in his doorway with the door wide open. Id., 497. The officer arrested the defendant for threatening and subsequently performed a search incident to the arrest. Id. Our Supreme Court, in upholding the validity of the defendant’s arrest, concluded that the defendant “voluntarily relinquished any expectation of privacy at the time of his arrest” because, essentially, he consented to remain in his doorway and consented to be arrested. Id., 502. The court stated: “Even in [United States v.] Berkowitz, [supra, 927 F.2d 1376] the court held that the defendant would be deemed to have acquiesced in his arrest if he had not attempted to question his arrest, or to close the door, but had merely asked whether he might retrieve his coat from inside his home. . . . The manifestations of acquiescence on the present record are clear. Far from attempting to close his door, the defendant unconditionally agreed to the request of the police officer that he remain standing in his doorway . . . .” (Citation omitted.) State v. Santiago, supra, 502.

Unlike the situation in Santiago, in this case, there was no probable cause, the defendant did attempt to close the door and did not consent to speak to the police, to remain in his doorway or to be seized by the police. Instead, upon opening his door and seeing the police, he immediately attempted to shut the door. We conclude, under such circumstances, that the defendant did not surrender his expectation of privacy in his apartment and, therefore, that Santana is inapplicable.

Moreover, the state’s reliance on Santana is misplaced because the case before us is not merely a “doorway case,” where the police arrested (or otherwise seized) an individual who was standing in his open doorway. The defendant was inside his apartment when Rubino, upon observing the defendant reach into his pocket, entered the apartment and pushed the defendant against the interior wall behind the door. It is thus undisputed that the officers entered the apartment prior to seizing the defendant. “In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.” Payton v. New York, supra, 445 U.S. 590.

The state has cited no case, and we have found none, that permits police officers physically to enter a defendant’s home, under the principle of Santana prior to an arrest. The weight of the cases is to the contrary. See LaLonde v. County of Riverside, supra, 204 F.3d 955 (doorway exception did not apply because “arrest took place only after the officers had crossed the threshold of the door and entered [the defendant’s] apartment”); Adkisson v. Indiana, 728 N.E.2d 175, 178 (Ind. App. 2000) (Santana not applicable where deputy crossed threshold and prevented defendant from closing door prior to informing her that his purpose was to place her under arrest); see also New York v. Harris, 495 U.S. 14, 15-17, 110 S. Ct. 1640, 109 L. Ed. 2d 13 (1990) (warrantless arrest after police entered home violated Payton); Payton v. New York, supra, 445 U.S. 578, 603 (arrest violative of fourth amendment where police, with probable cause but without warrant, entered defendant’s home to arrest defendant after defendant’s young son opened door in response to knock by police and police could see, from doorway, defendant sitting in bed); Loria v. Gorman, 306 F.3d 1271, 1286 (2d Cir. 2002) (“under the circumstances no reasonable officer could have concluded that — simply because [the defendant] was near the door — taking two steps into the house and seizing [the defendant] inside did not constitute a Fourth Amendment entry”); United States v. Carrion, 809 F.2d 1120, 1128 (5th Cir. 1987) (arrest not in violation of Payton warrant requirement because arrest effected before agents entered defendant’s hotel room).

Even in Santana, the “doorway principle” did not justify the officers’ entry into the defendant’s house. Rather, the officers’ entry was proper under the “hot pursuit” exception to the warrant requirement. If the doorway principle did not justify the police officers’ entry into the Santana defendant’s house, to complete her arrest, it would defy logic to hold here that the Santana principle was applicable to justify the officers’ entry into the defendant’s apartment.

For the foregoing reasons, we conclude that Santana is inapplicable to the present case and that the police did not seize the defendant in a public place. Where, as here, the police clearly have violated Payton's proscription of warrantless police entries into the home, Santana will not rectify unlawful police conduct by transforming the interior of a defendant’s home into a “public place” for purposes of the fourth amendment.

The state in its brief also contends that the emergency doctrine justified the officers’ entry into the defendant’s apartment. The state asserts that “the terms ‘exigent circumstances’ and ‘emergency doctrine’ are often used interchangeably when discussing warrantless entries into a home” and suggests that it is the emergency doctrine rather than exigent circumstances that permitted the officers’ warrantless entry into the defendant’s apartment. The state argues in its brief that “the defendant created an emergency when he opened the apartment door, saw three uniformed police officers standing there and then immediately thrust his right hand into his pocket while trying to close the door with his other hand.” The state asserts that the “emergency was the life threatening danger that the defendant posed to the police and others inside the apartment if he had a weapon in his pocket.” We are not persuaded.

In Mincey v. Arizona, 437 U.S. 385, 392, 98 S. Ct. 2408, 57 L. Ed. 2d 290 (1978), the United States Supreme Court recognized that “the fourth amendment does not bar police officers, when responding to emergencies, from making warrantless entries into premises and warrantless searches when they reasonably believe that a person within is in need of immediate aid.” (Internal quotation marks omitted.) State v. Klauss, 19 Conn. App. 296, 300-301, 562 A.2d 558 (1989). In State v. Geisler, 222 Conn. 672, 693, 610 A.2d 1225 (1992), our Supreme Court set forth the standard of review for determining whether the emergency doctrine justifies a warrantless search. We review the “applicability of the emergency doctrine . . . de novo . . . based upon the subordinate facts found by the trial court, to determine whether an emergency existed that would justify the warrantless entry into the dwelling.

“Facts found by the trial court will not be disturbed unless the finding is clearly erroneous. . . . Conclusions drawn from those underlying facts must be legal and logical. . . . An appellate court reviews conclusions based upon subordinate facts found, even if labeled conclusions of fact, to the same extent that it reviews conclusions of law. . . . Because the issue of the warrantless entry into a person’s home involves his or her constitutional rights, a reviewing court must examine the record thoroughly to determine whether the subordinate facts justify the trial court’s conclusion that the officers’ belief that an emergency existed was reasonable.” (Citations omitted.) Id.

“The terms exigent circumstances and emergency doctrine are often used interchangeably when discussing warrantless entries into a home. The term exigent circumstances, however, generally refers to those situations in which law enforcement agents will be unable or unlikely to effectuate an arrest, search or seizure, for which probable cause exists, unless they act swiftly and, without seeking prior judicial authorization. . . . The emergency exception refers to another type of warrantless entry that evolves outside the context of a criminal investigation and does not involve probable cause as a prerequisite for the making of an arrest or the search for and seizure of evidence.” (Citations omitted; internal quotation marks omitted.) State v. Hoth, 50 Conn. App. 77, 82, 718 A.2d 28, cert. denied, 247 Conn. 922, 722 A.2d 811 (1998).

“[T]here is a significant difference between a police entry for the purpose of making an arrest, or searching for evidence incident to a criminal investigation and an entry for the purpose of rendering aid or saving a human life.” (Internal quotation marks omitted.) Id., 83. “[G]iven the rationale for this very limited exception, the state actors making the [entry] must have reason to believe that life or limb is in immediate jeopardy and that the intrusion is reasonably necessary to alleviate the threat.” (Internal quotation marks omitted.) Id., 83-84. The test that we employ is “whether, under the totality of the circumstances, a well-trained police officer reasonably would have believed that a warrantless entry was necessary to assist a person inside in need of immediate aid." (Emphasis added.) State v. Klauss, supra, 19 Conn. App. 302.

In the present case, there was no emergency. When the police officers knocked on the door of the defendant’s apartment, they were not doing so because they had a reason to believe that anyone within the apartment was in immediate danger or in need of aid. Rather, they did so as part of an investigation. The state, however, argues that the defendant’s act of reaching into his pocket created a life threatening emergency to people inside the apartment as well as to the police at his door. There is no evidence in the record to indicate that the officers ever had any reason to believe that any person inside the apartment was in jeopardy or in need of emergency aid. Given the fact that the police had no reason to believe that anyone inside the apartment was in immediate danger or in need of aid, the police were not justified in entering the defendant’s apartment pursuant to the emergency exception. To the extent that the state argues that the emergency doctrine justified the officers’ entry because the defendant’s actions ereated an “emergency” for the police, who were standing outside the defendant’s apartment, we conclude that the emergency doctrine is inapplicable.

In summary, we conclude that the police officers violated the defendant’s fourth amendment rights when they unlawfully entered his apartment without a warrant. Contrary to the state’s argument, United States v. Santana, supra, 427 U.S. 38, is not applicable to this case, and the officers did not seize the defendant in a public place. Rather, the police unlawfully entered the defendant’s home and seized him therein in direct violation of Payton v. New York, supra, 445 U.S. 573. Moreover, the emergency doctrine did not justify the officers’ entry into the defendant’s apartment without his consent, nor did the exigent circumstances exception to the warrant requirement justify that entry. Because the defendant was searched after an unlawful police entry into his apartment, the contraband seized from his person must be suppressed.

The judgment is reversed and the case is remanded with direction to grant the defendant’s motion to suppress and for further proceedings in accordance with law.

In this opinion the other judges concurred.

       We note that although we refer to the apartment as being the defendant’s, there was testimony before the court that several people were staying at the apartment, and that the defendant had been living there and paying rent for three to four weeks. The court found that the defendant had a legitimate expectation of privacy in the apartment, and that finding is not contested on appeal.

       The defendant also claims a violation of his rights under article first, § 7, of the Connecticut constitution. The defendant has not provided an independent analysis of his state constitutional claim. Accordingly, we do not address the claim. See State v. Robinson, 227 Conn. 711, 721, 631 A.2d 288 (1993); State v. Williams, 64 Conn. App. 512, 521 n.3, 781 A.2d 325, cert. granted on other grounds, 258 Conn. 911, 782 A.2d 1251 (2001).

       See Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).

       The defendant made the following additional arguments in support of his claim that his motion to suppress was denied improperly: (1) the officers’ unreasonable conduct in knocking at the apartment door at 5 o’clock in the morning, without announcing themselves, requires suppression of the evidence and (2) even if the officers were justified in patting down the defendant for weapons, they were not justified in removing the narcotics from his pocket. Because we agree with the defendant that the exigent circumstances exception to the warrant requirement did not justify the officers’ entry into his apartment and find that argument to be dispositive, we do not address his other arguments. We also note that at oral argument, the defendant conceded that the officers’ conduct in knocking on his door was not unlawful.

       A seizure occurs “when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen . . . .” Terry v. Ohio, 392 U.S. 1, 19 n.16, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968); Florida v. Bostick, 501 U.S. 429, 434, 111 S. Ct. 2382, 115 L. Ed. 2d 389 (1991); see also Gardiner v. Incorporated Village of Endicott, 50 F.3d 151, 155 (2d Cir. 1995) (under fourth amendment, person seized by police “only if, under the circumstances, a reasonable person would have believed that he was not free to leave” [internal quotation marks omitted]).

       The court did determine that the defendant’s action of reaching his hand into his pocket, while attempting to close his door, created a reasonable and articulable suspicion that the defendant was about to attempt an assault.

       At oral argument before this court, the state conceded that the officers did not have probable cause when it stated: “The state has never argued that even if there were the imaginary magistrate out in the hallway to talk to t hat we would have been able to establish that there was probable cause or obtain a warrant. That has never been the state’s argument here.” The state further stated that “[w]e have said from the outset that no warrant is possible in this case” and that “we could not have obtained a warrant if we wanted to.”

       The defendant in Santana “was standing directly in the doorway — one step forward would have put her outside, one step backward would have put her in the vestibule of her residence.” United States v. Santana, supra, 427 U.S. 40 n.1.

       Prior to Santana, the United States Supreme Court held in United States v. Watson, 423 U.S. 411, 96 S. Ct. 820, 46 L. Ed. 2d 598 (1976), “that the warrantless arrest of an individual in a public place upon probable cause did not violate the Fourth Amendment.” United States v. Santana, supra, 427 U.S. 42.

       The term “hot pursuit is only one of several well-established examples of ‘exigent circumstances’ that make it reasonable for the police to enter without obtaining a search warrant.” Joyce v. Tewksbury, 112 F.3d 19, 22 (1st Cir. 1997); United States v. Crespo, 834 F.2d 267, 271 (2d Cir. 1987), cert. denied, 485 U.S. 1007, 108 S. Ct. 1471, 99 L. Ed. 2d 700 (1988).

       One of the issues raised by the state’s argument is whether the Santana principle can be applicable to Terry-style seizures supported only by reasonable suspicion, or whether the principle applies only to arrests, supported by probable cause. The state cites United States v. Gori, 230 F.3d 44 (2d Cir. 2000), cert. denied sub nom. Pichardo v. United States, 534 U.S. 824, 122 S. Ct 62, 151 L. Ed. 2d 29 (2001), for the proposition that Santana extends to situations where the police have only a reasonable suspicion that criminal activity is afoot. We choose not to address that issue, however, because we conclude that Santana is inapplicable under the facts of this case.

       Because we conclude that the facts of this case do not place it within Santana and its progeny, but instead place it squarely within Payton’s proscription against warrantless entries into the home, we need not address the issue of whether the defendant’s actions gave rise to a reasonable and articulable suspicion to believe that he was about to commit a crime.

       In reaching its conclusion, our Supreme Court acknowledged that a split of authority exists as to whether a defendant surrenders his reasonable expectation of privacy in his home merely by opening his door in response to a knock by the police. State v. Santiago, supra, 224 Conn. 501-502. The court, however, expressly declined to reach that issue and instead based its conclusion on the defendant's acquiescence.

       That is to say, we have found no case that permits police officers to enter a suspect’s home without the existence of some exception to the warrant requirement, such as exigent circumstances.