author: LAVERY, J. FLYNN, C. J.,

text:
    CHRISTOPHER PARSLOW v. ZONING BOARD OF APPEALS OF THE TOWN OF MIDDLETOWN ET AL.
    (AC 28403)
    Flynn, C. J., and Lavery and West, Js.

      Argued November 13, 2007
    officially released September 16, 2008

      Michael F. Dowley, for the appellant (defendant Seventeen Oaks, LLC).

      John S. Bennet, for the appellee (plaintiff).

      Timothy P. Lynch, for the appellee (named defendant).

       The listing of judges reflects their status on this court as of the date of oral argument.

   Opinion

LAVERY, J.

The defendant Seventeen Oaks, LLC, appeals from the judgment of the trial court sustaining the appeal of the plaintiff, Christopher Parslow, from the decision of the zoning board of appeals of the town of Middletown (board) that overturned the cease and desist order of the zoning and wetlands officer and held that the retail sale of food on a residentially zoned property was a preexisting, legal nonconforming use. The defendant claims that the court improperly (1) allowed the submission of evidence not before the board under General Statutes § 8-8 (k) and (2) substituted its judgment for that of the board. We affirm the judgment of the trial court.

The defendant owns two adjacent parcels designated lot two, located at 1277 Randolph Road, and lot three, at 980 South Main Street in Middletown. Both lots are zoned for residential use, but 980 South Main Street has a commercial garage that is a valid nonconforming use. The defendant erected a food vending stand called Miss Patsy’s Kitchen, which is described as a trailer with wheels but is currently on a platform and immobile due to the water and electrical lines running into the trailer on the lot at 1277 Randolph Road.

On July 12, 2004, Middletown’s zoning and wetlands officer issued a cease and desist order against the defendant, alleging a zoning violation because food vending is not permitted in a residential zone. On July 30, 2004, the defendant appealed from the decision to the board, claiming that it had a legal nonconforming use. The board heard the appeal on September 2, 2004. At the hearing, the board heard from the zoning and wetlands officer, counsel for the defendant and members of the public about their recollections of what existed on the property prior to the implementation of zoning in that area in the 1950s. There was testimony from individuals about church fundraisers and Lions Club auctions in the 1950s when there were food vendors on the property. The public also testified about the history of retail uses on the property for the sale of items such as sand and gravel. There was a letter from the prior zoning enforcement officer that referred to a “hot dog stand or cart” on the previous owner’s property that was a stop for a bus that ran along Route 17. The plaintiff attended the board meeting and spoke out against the hot dog stand, raising the board’s awareness that the property at issue was in fact two separate parcels under one owner by orally citing the Middletown tax assessor’s records. He also spoke about the house that had existed on the property until 1994, which was moved after the state condemned the house to widen the road in front of it. The plaintiff did not offer any exhibits to the board.

In a notice of decision dated September 10, 2004, the board reversed the decision of the zoning and wetlands officer regarding the issuance of the cease and desist order. The plaintiff appealed from this decision on February 8, 2005, alleging aggrievement and claiming that the board acted illegally, arbitrarily and in an abuse of its discretion.

On April 27, 2005, the plaintiff filed a motion to supplement the record with the “documentary evidence in support [of] the specifications contained in his oral presentation.” The defendant filed an objection to this motion on May 23,2005, and the board filed an objection on June 3, 2005. The court, Silbert, J., granted this motion in a memorandum of decision on July 14, 2005. In granting this motion, the court cited § 8-8 (k) for the proposition that at the court’s discretion, it may allow additional evidence to permit an equitable disposition of the appeal. The court wrote that the items the plaintiff sought to introduce would have been admissible before the board, and the only reason for not having them in the record was that the plaintiff was a layman and was unaware of what was necessary to perfect the record. The court countered the contention by the defendant and the board that ignorantia juris non excusat (ignorance of the law does not excuse) with another Latin phrase, ignorantia juris sui non praejudicat juri (ignorance of one’s own right does not prejudice the right), opining that the plaintiff was not holding back the documents intentionally and that greater latitude should be afforded a pro se litigant who is objecting to a petition.

In a memorandum of decision filed July 6, 2006, the court, Booth, J., sustained the plaintiffs appeal and reversed the decision of the board. The court found that the food vending service currently on 1277 Randolph Road was not on that lot prior to the adoption of the Middletown zoning regulations and that it was irrelevant whether food vending historically existed at 980 Main Street. The court concluded that Miss Patsy’s Kitchen is an illegal use of the residential property. After a denial of the defendant’s motion for reargument of the decision of the court on August 2, 2006, the defendant petitioned to this court for certification to appeal, which was granted on December 13, 2006. This appeal followed.

I

The defendant’s first issue on appeal is whether the court, Silbert, J., abused its discretion in allowing supplemental evidence into the record. General Statutes § 8-8 (k) provides in relevant part: “The court shall review the proceedings of the board and shall allow any party to introduce evidence in addition to the contents of the record if . . . (2) it appears to the court that additional testimony is necessary for the equitable disposition of the appeal. ...”

In Troiano v. Zoning Commission, 155 Conn. 265, 268, 231 A.2d 536 (1967), our Supreme Court held that the trial court had the authority to decide in the exercise of its discretion, whether additional evidence was necessary for the equitable disposition of the appeal. Accordingly, we need to decide only whether the court abused its discretion in permitting additional evidence to supplement the record of the proceedings before the board.

“When reviewing claims under an abuse of discretion standard, the unquestioned rule is that great weight is due to the action of the trial court and every reasonable presumption should be given in favor of its correctness.” (Internal quotation marks omitted.) Gevers v. Planning & Zoning Commission, 94 Conn. App. 478, 488-89, 892 A.2d 979 (2006). “We will reverse the trial court’s ruling only if it could not reasonably conclude as it did.” (Internal quotation marks omitted.) Murphy v. Zoning Board of Appeals, 86 Conn. App. 147, 152, 860 A.2d 764 (2004), cert. denied, 273 Conn. 910, 870 A.2d 1080 (2005). “Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done. . . . We do not . . . determine whether a conclusion different from the one reached could have been reached.” (Internal quotation marks omitted.) Kramer v. Petisi, 91 Conn. App. 26, 37, 879 A.2d 526 (2005), aff'd, 285 Conn. 674, 940 A.2d 800 (2008).

Judicial discretion has best been described by Chief Justice Maitbie in his learned text on Connecticut appellate procedure: “It is frequently stated in the opinions that a particular conclusion or ruling is one within the discretion of the trial court, to be held erroneous only if the court abused that discretion. The essence of such a discretion is that different minds could, upon the same circumstances, arrive reasonably at varying conclusions. The supreme court will not disturb a ruling made in the exercise of a trial court’s discretion unless it finds that the court acted unreasonably, unfairly, or some improper application of a rule of law was involved. Judicial discretion is always a legal discretion. Its abuse will not be interfered with upon appeal to this court except in a case of manifest abuse where injustice appears to have been done . . . The test is, has the court exercised unreasonable discretion or in other words, is its exercise so unreasonable as to constitute an abuse of discretion . . . With the exercise of discretionary powers, courts rarely, only for grave reasons, interfere. These grave reasons are found only where fraud, corruption, improper motives or influences, plain disregard of duty, gross abuse of power or violation of law, enter into or characterize the result. Difference in opinion of judgment is never a sufficient ground for interference. The term abuse of discretion does not imply a bad motive or a wrong purpose but merely means that the ruling appears to have been made on untenable grounds.” (Internal quotation marks omitted.) W. Maltbie, Connecticut Appellate Procedure (2d Ed. 1957) § 59, pp. 67-68.

In Gevers v. Planning & Zoning Commission, supra, 94 Conn. App. 478, this court stated that “[a]n appeal from an administrative tribunal should ordinarily be determined on the record made before that tribunal, and only when that record fails to present the hearing in sufficient scope to determine the merit of the appeal or when some extraordinary reason requires it should the court hear evidence. Beach v. Planning & Zoning Commission, 141 Conn. 79, 80, 103 A.2d 814 (1954). Thus, allowance at trial of additional evidence under the concept of evidence necessary for the equitable disposition of the appeal under [§] 8-8 (k), has generally received a restrictive interpretation to avoid review of the agency’s decision based in part on evidence not presented to the agency initially. R. Fuller, 9A Connecticut Practice Series: Land Use Law and Practice (2d Ed. 1999) § 32.8, p. 136.” (Internal quotation marks omitted.) Gevers v. Planning & Zoning Commission, supra, 489.

Under § 8-8 (k) (2), there are certain areas in which it is almost obligatoiy that the trial court allow evidence to supplement the record before the board. These areas are set forth in great detail in § 32.8 of volume 9A of Robert A. Fuller’s text on Connecticut land use law and practice. Some of the instances in which supplemental evidence is almost always allowed occur when there are claims of confiscation, improper receipt of evidence after the public hearing, conflicts of interest by members of the land use board, predetermination and former applications to the agency, among others. These areas rarely would have been addressed at the public hearing and are proper issues in the appeals. There is another category under § 8-8 (k) (2) in which evidence is offered to supplement the record to support the moving party’s position on appeal or to clarify the position taken before the board. For these types of cases, Fuller, in § 32.8, summarizes the law: “The trial court has discretion on whether to take additional evidence, but should ordinarily allow it only when the record is insufficient or when there is an extraordinary reason for it, and before allowing additional evidence the court should (1) determine that the additional evidence is material and (2) that there was a good reason for the failure to present the evidence in the original proceeding.” R. Fuller, 9A Connecticut Practice Series: Land Use Law and Practice (3d Ed. 2007) § 32.8, pp. 207-208.

The plaintiff moved to supplement the record with the following documents: “Exhibit A. The [assessor's street card for the lot known as 1277 Randolph Road, the location of the hot dog stand, Map 30, Block 35 Lot 2, account number R12579, certified copy attached;

“Exhibit B. The [assessor's record for 980 South Main Street, Map 30, Block 35-8 Lot 3 account number R12578, the parcel containing the adjacent pre-existing non-conforming, commercial use, certified copy attached;
“Exhibit C. A certified copy of Middletown Assessor’s Map number 30 [s]howing the two separate parcels described in A & B above;
“Exhibit D. A certified copy of a survey map entitled ‘City of Middletown, Map Showing Easements Acquired From Thomas E. Wilcox by the State of Connecticut’ Intersection realignment of Connecticut Route 17 (Middletown Avenue) and Connecticut Route 155 (Randolph Road) (recorded at Book 58 as Map number 94 of the records of the City Clerk of the City of Middletown);
“Exhibit E. A certified copy of the survey plan entitled ‘Re-subdivision Map Land Now or Formerly of Mylchreest Realty, LLC’ being a certain plan approved by the Middletown Planning and Zoning Commission of January 22, 2003 for re-subdivision of property at 980 South Main Street, Middletown (recorded in Book 45, as Map number 3 of the Middletown City Clerk’s Office);
“Exhibit F. A certified copy of the Warranty Deed recorded Volume 225, page 491 and dated September 22,1948 from Raymond H. Wilcox to Thomas E. Wilcox (for the property at 1277 Randolph Road);
“Exhibit G. A certified copy of a Probate Certificate dated December 29, 1970 recorded in the Probate Records at Volume 372 at Page 509 (for the property at 980 South Main [Street]);
“Exhibit H. A certified copy of a certain Administrator Deed recorded Volume 1322 at Page 832 of the Land Records, dated August 27, 2002 from Sharon W. Madeux, Administratrix, Estate of Thomas E. Wilcox, Sr. to Mylchreest Realty, LLC (for both 1277 Randolph Road and 980 South Main Street).”

The plaintiff argues that the documents are material in that they pertain to the very issue raised and were discussed not only by the plaintiff but by the counsel for the defendant, as well as the town planner, and by the members of the board. The plaintiff argues that the documents show a separate residential parcel, under separate ownership, separately set out and designated by the municipality in its tax records and used as a residential property. The plaintiff also argues that there was a good reason for his failure to present the evidence in the original proceeding in that the issue of a separate lot was specifically raised in detail by the plaintiff and another neighbor, William Wamester, during the hearing and that as laypersons, unschooled in legal technicalities, they believed that the board would protect their interests and check the public documents in making its decision. The plaintiff further argued that an equitable disposition required the inclusion of these exhibits because the lot descriptions were key to the board and that its confusion led to a legally incorrect decision.

The defendant argues that the plaintiff could have presented these documents of the public record, there is no claim of evidence in the record that the plaintiff was prevented from introducing this evidence and that such evidence was not before the board at the time it made the decision.

The court, Silbert, J., in granting the motion to supplement the record, found that there was no claim that the plaintiff held back the documents intentionally so as to surprise or confuse the defendant but, on the contrary, that the plaintiff spelled out the nature of his claim quite clearly, neglecting only to document it with public records. The court further found that great latitude should be given a pro se individual who is objecting to a petition before a commission, as opposed to one initiating the petition, because the former is reacting to oral and documentary argument made at a public hearing and typically has less time to prepare a completely documented response. In addition, the court reasoned that the plaintiff directed the board’s attention to the precise issue that was of concern to him and alerted the board to the documents that supported his position with specificity.

The court stated that if the plaintiff merely told the board that “ ‘the hot dog stand is not on the same property that was once used for retail purposes’ and nothing more,” the court would agree that it would be an improper invocation of § 8-8 (k). The court reasoned that because the plaintiff was so specific in his reference to the properties in question and to the location of documents that could support his position, the board was on fair notice as to the nature of his claim. It further found that the arguments, if accurate, could have a significant impact on the appeal. The court concluded that the record should be expanded to produce an equitable disposition. The court further concluded that the decision is a narrow one and that the decision does not open the door to a widespread misuse of proceedings at the board level to set up a subsequent Superior Court appeal on the basis of issues that could not have been contemplated at the board level.

We agree with Fuller that additional evidence in the case in which the evidence could have been presented to the commission should be allowed only when the evidence is material and there is good reason for the failure to produce the evidence at the original hearing.

We begin our analysis by referring to the minutes of the board’s September 2, 2004 meeting: “[T]he board reversed the decision by the [z]oning [enforcement [ojfficer regarding the issuance of a cease and desist order for a food vending trailer operating at 980 South Main Street.” The plaintiff, in his testimony, objected on the ground that the food trailer is located at 1277 Randolph Road, not 980 South Main Street, and that the trailer was sitting on the part of 1277 Randolph Road where a yellow house stood for many years, which was moved in 1994 when the state reconstructed the intersection of the roads. It was a residential house on a separate lot and could not be part of 980 South Main Street because it would violate § 14.06 of the Middle-town zoning regulations. All the exhibits reinforce the plaintiffs argument that any preexisting use of food sales was on the lot at 980 South Main.

Section 14.06 provides: “No additional structure or enlargement or increase of land area or relocation in whole or in part of any nonconforming use shall be permitted.” Middletown Zoning Regs., § 14.06.

Because everyone was in agreement that there was a yellow house at 1277 Randolph Road, all the public records admitted as exhibits by the court, Silbert, J., were material and all were referenced in the plaintiffs testimony. The court also found that the plaintiff, a layman, was responding to a prepared presentation with reference to town records and the zoning regulations with specificity and not generally and that the record should be supplemented for equitable reasons.

Although Appellate Court and Supreme Court cases have upheld the trial court’s not admitting evidence as a proper exercise of judicial discretion; see Tarasovic v. Zoning Commission, 147 Conn. 65, 69-70, 157 A.2d 103 (1959); Gevers v. Planning & Zoning Commission, supra, 94 Conn. App. 478; Collins Group, Inc. v. Zoning Board of Appeals, 78 Conn. App. 561, 580-82, 827 A.2d 764, cert. denied, 266 Conn. 911, 832 A.2d 68 (2003); Samperi v. Planning & Zoning Commission, 40 Conn. App. 840, 851, 674 A.2d 432 (1996); Swensson v. Planning & Zoning Commission, 23 Conn. App. 75, 79-80, 579 A.2d 113 (1990); we cannot say that the court, Silbert, J., abused its judicial discretion. The court limited its decision to the very narrow set of facts of this case and ruled that it was important to show from the public records referred to by the plaintiff that there are two lots and that the yellow residential house sat for many years where the hot dog trailer is now. The court acted in accord with § 8-8 (k) (2) and also with existing case law when it made its ruling on the basis of materiality and good cause for failure to produce the documents at the hearing. We find that the court acted within its judicial discretion.

II

The defendant’s second claim on appeal is that the court, Booth, J., improperly reversed the decision of the board by substituting its judgment for that of the board. The plaintiff argues that the court properly found that there was no evidence to support the board’s decision and that concessions by the defendant’s counsel that the uses of the property were nonconforming furthered this conclusion. We agree with the plaintiff.

“Generally, it is the function of a zoning board or commission to decide within prescribed limits and consistent with the exercise of [its] legal discretion, whether a particular section of the zoning regulations applies to a given situation and the manner in which it does apply. The trial court had to decide whether the board correctly interpreted the section [of the regulations] and applied it with reasonable discretion to the facts. ... In applying the law to the facts of a particular case, the board is endowed with a liberal discretion, and its decision will not be disturbed unless it is found to be unreasonable, arbitrary or illegal. . . . [U]pon appeal, the trial court reviews the record before the board to determine whether it has acted fairly or with proper motives or upon valid reasons .... We, in turn, review the action of the trial court. . . . The burden of proof is on the plaintiff to demonstrate that the board acted improperly.” (Citations omitted; internal quotation marks omitted.) Spero v. Zoning Board of Appeals, 217 Conn. 435, 440, 586 A.2d 590 (1991).

A nonconforming use runs with the land and is like a variance in that it is not personal in nature. See Reid v. Zoning Board of Appeals, 235 Conn. 850, 859, 670 A.2d 1271 (1996). Further, “[w]here a nonconforming use of property exists, it must be contained within the limits of the use in existence when the regulations were adopted, so that it is illegal to alter a building containing the nonconforming use where the structural changes amount to an enlargement of the area used for that purpose.” R. Fuller, 9B Connecticut Practice Series: Land Use Law and Practice (3d Ed. 2007) § 52:3, p. 214.

In its memorandum of decision, the court, Booth, J., found that there was no evidence in the record of a structure to sell food on either lot prior to the adoption of the zoning code. The court also found that there was no evidence of a preexisting nonconforming use on 1277 Randolph Road and that it is a residential lot. It further found that it is irrelevant whether food vending was part of the nonconforming use on 980 South Main Street because the current food vending is occurring only at 1277 Randolph Road.

The plaintiff refers to concessions in the record in which counsel for the defendant acknowledged that the hot dog stand is a nonconforming use. Before the court, counsel for the defendant claimed that the nonconforming use did not violate the local regulations because the defendant proved a use on the property at the board hearing and that it had not been abandoned. After conceding that the lots were historically owned by a person and a company separately, counsel for the defendant argued that the lots were treated as one yard and that the commercial use was over both properties. The maps in the record show that the hot dog stand occupies the very spot where the yellow house stood from 1967 to 1994 when it was moved off the lot when the state highway department took part of the property to widen the road.

Overall, there is no evidence in the record that shows that food vending or a hot dog cart was ever located at 1277 Randolph Road. Further, there is no testimony or evidence that shows how large the alleged cart on 980 Main Street was, where on the property it was located or that it was a permanent fixture, as is the current structure on 1277 Randolph Road. There is no question that there are two separate lots and that the cease and desist order, the notice of appeal and the decision of the board cite 980 South Main as the lot with the hot dog stand when the structure is on 1277 Randolph Road. There is no evidence of a hot dog stand previously being located on the Randolph Road lot; 1277 Randolph Road is residential. It would violate § 14.06 of the zoning regulations to extend commercial use to the Randolph property from 980 South Main Street or to move a nonconforming use from one property to another. Alternatively, the parties are in agreement that a yellow house stood on the property at 1277 Randolph Road until 1994; therefore, even if there was a preexisting use of food vending on that lot, under § 14.05 of the zoning regulations, it cannot be resumed after any permitted use was undertaken, and here the lot became and remains residential. The plaintiff has met his burden of proof to show that the board acted improperly, and therefore the court was correct in its judgment that the decision of the board was illegal.

The judgment is affirmed.

In this opinion WEST, J., concurred.

FLYNN, C. J.,

dissenting. This case raises questions about the deference to be given to local zoning agencies when undertaking a judicial review of their findings and conclusions. I respectfully dissent from the majority opinion and would conclude that the court improperly allowed the introduction of eight separate documents into evidence at the Superior Court hearing on the zoning appeal of the plaintiff, Christopher Parslow, although those documents had never been introduced before the zoning board of appeals of the town of Middletown. I do so because judicial review of the actions of a zoning board is limited generally to a review of the record evidence the board had before it, and the plaintiff in this case has not shown good reason for failing to present before the board the evidence he produced only before the Superior Court.

I agree that the language of General Statutes § 8-8 (k) is broad insofar as subdivision (2) of it permits the Superior Court in an appeal from a decision of a zoning board to “allow any party to introduce evidence in addition to the contents of the record if . . . (2) it appeals to the court that additional testimony is necessary for the equitable disposition of the appeal. . . .’’This statutory breadth, however, has been limited by judicial decisions that recognize that the court’s usual role on judicial review is to review the record that the zoning authority had before it and to decide whether, on that record, the board acted arbitrarily, unlawfully or in abuse of the discretion vested in it on the basis of the evidence. See Beach v. Planning & Zoning Commission, 141 Conn. 79, 80, 103 A.2d 814 (1954).

The majority cites Troiano v. Zoning Commission, 155 Conn. 265, 268, 231 A.2d 536 (1967), as authority for a court to allow the admission of additional evidence in the exercise of its discretion. Troiano, however, seems to fall into one of those narrow exceptions that would not apply here. Troiano held that, when a due process confiscation claim was made, it was error for the Superior Court to bar new evidence of the effect of new regulations on an existing gravel mining operation. There was no constitutional claim in the present case, and, accordingly, Troiano is inapposite. See Gevers v. Planning & Zoning Commission, 94 Conn. App. 478, 490, 892 A.2d 979 (2006) (Troiano involved claims of constitutional dimension and is inapposite to case in which no constitutional claim advanced).

I agree with Fuller’s scholarly treatise, in which he summarizes the narrow exceptions permitting the admission of new evidence. See R. Fuller, 9A Connecticut Practice Series: Land Use Law and Practice (3d Ed. 2007) § 32.8, pp. 209-12. These exceptions include claims of constitutional confiscation, fraud and other such narrow situations. Id. I agree with the majority that the disputed evidence in the present case does not fall into any of those recognized narrow exceptions. Fuller also opines that new evidence should not be admitted at the Superior Court trial unless there is a good reason for the failure of the party to present the evidence in the original proceeding. Id. “The trial court has discretion on whether to take additional evidence, but should ordinarily allow it only when the record is insufficient or when there is an extraordinary reason for it, and before allowing additional evidence the court should (1) determine that the additional evidence is material and (2) that there was a good reason for the failure to present the evidence in the original proceeding.” Id., pp. 207-208. I agree.

I disagree with the majority, however, that there was any good reason for the plaintiffs failure to introduce this known evidence to the zoning board of appeals in this case. The only reason advanced by the plaintiff was that he had not been represented by a lawyer and, therefore, was ignorant of the importance of the eight documents. Carving an exception for such a reason will open the “bam door,” and the exception will swallow the rule of reliance on the record before the board when undertaking judicial review. Accordingly, I would conclude that the admission of the new evidence was not a proper exercise of the court’s discretion. Therefore, I respectfully dissent.

       The plaintiff is an abutting landowner and is therefore statutorily aggrieved under General Statutes § 8-8 (a) (1).

       The board adopted the briefs and oral argument of Seventeen Oaks, LLC. Because only Seventeen Oaks, LLC, has appealed, we refer to it in this opinion as the defendant.

       The plaintiff originally filed his appeal on September 21, 2004, but it was dismissed by the court because an officer failed to serve the appropriate parties. Service was perfected in this appeal pursuant to General Statutes § 8-8 (q), and the appeal was, therefore, timely.

       For a scholarly discussion on such areas in which supplemental evidence in a land use case is ordinarily allowed, see MJM Land Development v. Madison Inland Wetland Assn., Superior Court, judicial district of New Haven, Docket No. CV-03-0484371-S (August 13, 2004), and Harrison v. Board of Zoning Appeals, Superior Court, judicial district of New Haven, Docket No. CV-03-0477037-S (August 2, 2004) (37 Conn. L. Rptr. 640).

       At the September 2, 2004 meeting of the board, the plaintiff testified as follows: “I’m Christopher Parslow from 11 Maple Shade Road. I own the acljacent property. Since you have narrowed it down to this question of prior use and the idea of the continuation of use of this, I’d like to point out that in fact the citation and the discussion has been aimed at the wrong piece of property. That is, we’ve been talking about 980 South Main, and the hot dog stand actually stands on property that on [the] Middletown tax assessor’s records is 1277 Randolph Road. That is lot 30 35A2, parcel R, 12579. This is a one-third acre, 0.33 acre piece of land that is zoned R15. It has an assessed value of $1750.1 raise that simply to make a point of equity.
      “I wonder if the members of the Chamber of Commerce realize what kind of property taxes this business is paying. It’s owned by Milchreest Realty of 391 Maple Shade Road. It is definitely residential. It has been residential for at least forty years. There is a house there that was moved to 34 Acert Drive [and] is owned by Mary Swaykiss. That house was moved in roughly 1994 when the state re-did the comer of South Main and Randolph Road. It has never been and never will be part of 980 South Main because to do so would be in violation of Middletown zoning § 14.06, which prohibits the expansion of nonconforming properties.
      “I believe that the appellant, and his lawyer, who I didn’t work with when I bought my property from Tom Wilcox, knew this when he bought the property because I knew it when I bought my property, when I made inquiries into buying it. Consequently, there is no debate here from my perspective and I believe from a legal standpoint as well. This sits on a piece of residential property that had a house on it [and] has always been residential. Whether they sold a hot dog out of the kitchen or not shouldn’t be a factor. There was never any intent to have a hot dog stand on this property.”

       Section 14.05 of the Middletown zoning regulations provides: “Any structure, or structure and land in combination, in or on which a nonconforming use is superseded by a permitted use, shall thereafter conform to the regulations for the zone, and the non-conforming use may not thereafter be resumed.”

       I also find it problematic that the cease and desist order of the Middletown zoning and wetlands officer, which the trial court and the majority believe properly was issued and should be upheld, ordered the defendant Seventeen Oaks, LLC, to stop the commercial food vending service at 980 South Main Street, Middletown. The plaintiff, himself, contended, and the trial court agreed, that the food vending trailer actually is located at 1277 Randolph Road. The court also found, however, that there was some evidence that a food vending service had existed at 980 South Main Street prior to the adoption of zoning regulations. The court stated further that because the food vending activity was not now taking place at 980 South Main Street, it need not determine whether the prior food vending activity would be sufficient to support the validity of a nonconforming use at 980 South Main Street. In reality, the question before the board in this case was whether it should uphold the cease and desist order, which it voted to overturn. On appeal, the Superior Court was to review the decision of the board, which overturned a cease and desist order for 980 South Main Street. The Superior Court then reversed the board’s decision, effectively reinstating the cease and desist order, which the majority on appeal also finds proper. I question how a cease and desist order issued to 980 South Main Street can be upheld and enforced against an activity taking place at 1277 Randolph Road.


source: Caselaw Access Project

author: PETERS, J.

license: Public Domain

text:
    MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. v. RAYMOND GODUTO ET AL.
    (AC 28900)
    Bishop, Lavine and Peters, Js.
    Argued May 27
    officially released September 16, 2008

      Stephen P. Wright, with whom, on the brief, was Jeremy F. Hayden, for the appellant (named defendant).

      David F. Borrino, for the appellee (plaintiff).
   Opinion

PETERS, J.

The right of a mortgagee to initiate a foreclosure action against a defaulting debtor depends on the mortgagee’s compliance with the notice provisions contained in the mortgage. Fidelity Bank v. Krenisky, 72 Conn. App. 700, 707, 807 A.2d 968, cert. denied, 262 Conn. 915, 811 A.2d 1291 (2002); Citicorp Mortgage, Inc. v. Porto, 41 Conn. App. 598, 602, 677 A.2d 10 (1996). In this case, the trial court held that foreclosure was proper because each of two notices sent by the mortgagee satisfied the requirement in the mortgage that the debtor be given thirty days notice of his default. Although we agree with the court’s ultimate conclusion, we do so on the alternate ground that the two notices, read jointly, substantially afforded the debtor the requisite notice. We therefore affirm the judgment of the trial court.

On December 7, 2005, the plaintiff, Mortgage Electronic Registration Systems, Inc., initiated foreclosure proceedings against the defendant Raymond Goduto to obtain possession of 34 Federal Road, Shelton, which the defendant had mortgaged to the plaintiff. Although the defendant initially challenged the plaintiffs authority to enforce the mortgage and the underlying promissory note, he ultimately relied on only one special defense. Without denying that the plaintiff had sent him two notices of default or alleging that he had failed to receive them, he argued that foreclosure was improper because the plaintiff had failed to give him notice of default according to the terms of the mortgage. The trial court disagreed and, on May 2, 2007, granted the plaintiffs motion for summary judgment as to liability. The defendant has appealed from the judgment of foreclosure by sale subsequently rendered on May 29, 2007.

The underlying facts are not in dispute. On April 27, 2004, in return for a loan of $204,000, the defendant executed a promissory note payable to the order of Decision One Mortgage Company, LLC. As security for the note, the defendant executed a mortgage that named the plaintiff as mortgagee. The note thereafter was negotiated to the plaintiff, and the mortgage was recorded on the Shelton land records. Since August 27, 2005, the defendant has made no payments on the note, either of principal or of interest. A mortgage loan servicer acting on behalf of the plaintiff sent the defendant two notices of default, one dated September 12, 2005, and another dated October 17, 2005. In the absence of any response by the defendant to either of these notices, the plaintiff initiated foreclosure proceedings on December 7, 2005.

The only issue addressed by the trial court in its memorandum of decision granting the plaintiffs motion for summary judgment was whether the default notices sent by the plaintiff complied with the notice provisions in the mortgage. The court recognized that, to initiate foreclosure proceedings, the plaintiff was required to show that it had afforded the defendant not less than thirty days notice of his default and held that the plaintiff had done so. The defendant’s appeal challenges the validity of this one ruling of the trial court.

Our resolution of the defendant’s appeal is governed by a well established standard of review. “In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law. ... On appeal, we must determine whether the legal conclusions reached by the trial court are legally and logically correct and whether they find support in the facts set out in the memorandum of decision of the trial court.” (Internal quotation marks omitted.) Mortgage Electronic Registration Systems, Inc. v. White, 278 Conn. 219, 226, 896 A.2d 797 (2006). In this case, because the trial court’s interpretation of the definitive terms of the mortgage resolved a question of law, our review is plenary. Tallmadge Bros., Inc. v. Iroquois Gas Transmission System, L.P., 252 Conn. 479, 494-95, 746 A.2d 1277 (2000).

It is undisputed that to accelerate the defendant’s indebtedness and thereafter to initiate foreclosure proceedings, the mortgage required the plaintiff to give the defendant notice of his default in accordance with the provisions of covenant twenty-two therein. This covenant states that “[t]he notice shall specify: (a) the default; (b) the action required to cure the default; (c) a date, not less than 30 days from the date the notice is given to Borrower, by which the default must be cured; and (d) that failure to cure the default on or before the date specified in the notice may result in acceleration of the sums secured by this [mortgage] and foreclosure or sale of the Property.” It is likewise undisputed that another provision in the mortgage, covenant fifteen, states that “[a]ny notice to Borrower . . . shall be deemed to have been given to Borrower when mailed by first class mail . . . .” The defendant concedes that the plaintiff issued two notices of default, the first day of which commenced, by the defendant’s calculation, on September 13, 2005, and that the cure period of the second notice ended on November 16, 2005. The defendant likewise concedes that he failed to respond to either notice. The only issue that is properly before us, therefore, is whether, as the mortgage required, the notices sent by the plaintiff, singly or jointly, afforded the defendant thirty days notice to cure his default so as to avoid acceleration of his debt and foreclosure.

The defendant maintains that the trial court, in granting the motion for summary judgment, improperly distinguished this case from this court’s decision in Bank of America, FSB v. Hanlon, 65 Conn. App. 577, 783 A.2d 88 (2001). ha Hanlon, this court held that, in calculating compliance with a temporal notice requirement in a mortgage, “the period is calculated by excluding the date notice issues and including the last day given to cure the default.” Id., 583. Read literally, each of the default notices in this case similarly states a notice period that arguably fails to comply with the terms of the mortgage. The trial court held, however, that Hanlon was not controlling because the mortgage in this case provided, in covenant fifteen, that “[a]ny notice to Borrower in connection with this Security Instrument shall be deemed to have been given to Borrower when mailed by first class mail . . . .” The court held that, unlike the mortgage in Hanlon, this mortgage clause “definitively establishes the date upon which notice is deemed given.” The defendant points out, however, that the Hanlon mortgage also contained a notice clause that, although somewhat differently worded, purported to link the mailing of notice by the mortgagee with the time at which notice was deemed to have been given to the mortgagor.

We need not, however, decide whether the trial court’s analysis of Hanlon is persuasive if we may affirm the court’s judgment on an alternate ground. An appellate court “is authorized to rely upon alternative grounds supported by the record to sustain a judgment.” (Internal quotation marks omitted.) Kelley v. Bonney, 221 Conn. 549, 592, 606 A.2d 693 (1992). “Where the trial court reaches a correct decision but on mistaken grounds, this court has repeatedly sustained the trial court’s action if proper grounds exist to support it.” Morris v. Costa, 174 Conn. 592, 597-98, 392 A.2d 468 (1978). The plaintiff reminds us that, as a result of the two notices of default that it sent to the defendant and its further delay in initiating foreclosure of its lien on the defendant’s property, the defendant in fact had no fewer than sixty-five days to cure his default. The plaintiff argues that this extended period of notice of default was sufficient to demonstrate substantial compliance with the thirty day notice requirement in the mortgage. We agree.

On several occasions, this court has considered the role of substantial performance in the enforcement of contract obligations. The concept is not a novel one. Although the doctrine was most eloquently articulated in the celebrated case of Jacob & Youngs, Inc. v. Kent, 230 N.Y. 239, 129 N.E. 889 (1921), in the context of building contracts, it has long been recognized to have application as well to the enforcement of “contracts of all kinds . . . .” 8 A. Corbin, Contracts (Rev. Ed. 1999) § 36.2, p. 336. At issue in a claim of substantial performance is whether partial performance by one party is so “nearly equivalent to that for which the parties bargained” that it will “protect him from having his defaults considered as breaches” sufficient “to justify the other party in refusing” to comply with its own contractual obligations. 15 S. Williston, Contracts (4th Ed. Lord 2000) § 44:54, pp. 227-28.

“There is no simple test for determining whether substantial performance has been rendered”; Hadden v. Consolidated Edison Co., 34 N.Y.2d 88, 96, 312 N.E.2d 445, 356 N.Y.S.2d 249 (1974); but among the factors to be considered is “the degree to which the purpose behind the contract has been frustrated . . . .’’Id. Although such a determination may involve a factual inquiry into the intention of the parties under the circumstances of a particular case; Anderson v. Yaworski, 120 Conn. 390, 399, 181 A. 205 (1935); if the relevant inquiry turns on the language of unambiguous contractual documents, applicability of the doctrine is a question of law. Levine v. Massey, 232 Conn. 272, 277-78, 654 A.2d 737 (1995).

Two recent precedents in this court provide ample support for applying the doctrine of substantial performance under the uncontested circumstances of this case. These cases are Fidelity Bank v. Krenisky, supra, 72 Conn. App. 700, and, most recently, Twenty-Four Merrill Street Condominium Assn., Inc. v. Murray, 96 Conn. App. 616, 902 A.2d 24 (2006).

In Fidelity Bank v. Krenisky, supra, 72 Conn. App. 700, the defendant debtors appealed from the judgment of foreclosure by sale, arguing that their failure to escrow funds for real estate taxes as required by the terms of their mortgage was not actionable because the plaintiff lender had failed to comply strictly with the terms of the default notice provisions of the mortgage as a condition precedent for accelerating their loan indebtedness. Id., 703, 709. The plaintiff conceded that its notice did not expressly set forth that the defendants had the right to reinstate their mortgage after the debt had been accelerated or “their right to contest foreclosure in court.” Id., 709. Nonetheless, because the defendants had received sufficient actual notice of these rights, and “the plaintiffs deficient written notice caused no harm,” this court concluded that the plaintiff had “substantially complied” with the stipulated notice requirements. Id., 712-13.

Furthermore, only two years ago, in Twenty-Four Merrill Street Condominium Assn., Inc. v. Murray, supra, 96 Conn. App. 616, this court reexamined at length the principles underlying the enforcement of notice provisions. In that case, the defendant appealed from the judgment of strict foreclosure on the ground that the plaintiff, a condominium association, had failed to comply with bylaw requirements for notice within thirty days of its decision to levy fines against him for causing damage to another apartment. Id., 620-22. Even though the defendant in that case did not receive notice until nine months after the association’s decision had been rendered, we held that literal enforcement of the thirty day provision was unwarranted because the defendant had suffered no prejudice as a result of the association’s delay. Id., 625. We observed that the proper approach to the giving of notice is to focus on the principle of “fundamental fairness,” of “affording parties the opportunity to be apprised when their interests are implicated in a given matter.” Id., 622.

In deciding whether proper notice was given, we therefore look primarily to the actual notice received rather than asking whether there has been a “punctilious adherence to formality . . . .” (Internal quotation marks omitted.) Id., 623. Although generally “contracts should be enforced as written,” we will not require “mechanistic compliance” with the letter of notice provisions if the particular circumstances of a case show that the actual notice received resulted in no prejudice and fairly apprised the noticed party of its contractual rights. (Internal quotation marks omitted.) Id.

In light of these precedents, we conclude that, in this case as well, “literal enforcement of the relevant notice provision would serve no purpose” because the defendant had actual notice of his right to cure his default prior to acceleration. See Fidelity Bank v. Krenisky, supra, 72 Conn. App. 712. Any possible discrepancy between the terms of the mortgage and the plaintiffs notices caused no harm to the defendant because he had sixty-five days of actual notice in which to protect his property rights. “Literal enforcement of notice provisions when there is no prejudice is no more appropriate than literal enforcement of liquidated damages clauses when there are no damages.” Aetna Casualty & Surety Co. v. Murphy, 206 Conn. 409, 418, 538 A.2d 219 (1988). We therefore affirm the trial court’s judgment on the alternate ground that by sending a second notice letter, the plaintiff substantially complied with the notice requirements in the defendant’s mortgage.

The judgment is affirmed and the case is remanded to the trial court for whatever further proceedings the court deems appropriate in light of the expiration of the date originally set for the foreclosure sale.

In this opinion the other judges concurred.

       Because the plaintiff was granted a default judgment against the other defendants in this action, Michele Kudravy, Howard Lipper and Sharon Upper, for failure to disclose a defense, we refer in this opinion to Goduto as the defendant.

       The defendant asserted a failure to comply with the notice requirement in the mortgage as a special defense before the trial court. “The purpose of a special defense is to plead facts that are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action. . . . A valid special defense at law to a foreclosure proceeding must be legally sufficient and address the making, validity or enforcement of the mortgage, the note or both.” (Internal quotation marks omitted.) Fidelity Bank v. Krenisky, supra, 72 Conn. App. 705.

       Although the defendant’s answer included a denial of this allegation in the plaintiffs complaint, he did not contest his default in the proceedings relating to the plaintiffs motion for summary judgment. He similarly does not contest his default in his appeal to this court.

       The first notice provided in relevant part: “Our records indicate that your loan is in default. ... To avoid the possibility of acceleration you must pay $5,178.13 by October 12, 2005, 2:00 P.M. Central Time in certified funds, to America’s Servicing Company, P.O. Box 37297, Baltimore, MD 21297-3297. If funds are not received by the above stated date, we will proceed to automatically accelerate your loan.”

       In addition, the notice informed the defendant that “failure to pay this delinquency, plus additional payments and fees that may become due, will result in the acceleration of your Mortgage Note. Once acceleration has occurred, a foreclosure action, or any other remedy permitted under the terms of your Mortgage or Deed of Trust, may be initiated.”
      The second notice, in addition to replicating the standard provisions contained in the earlier notice, provided in relevant part: “Our records indicate that your loan is in default. . . . To avoid the possibility of acceleration you must pay $5,202.03 by November 16, 2005, 2:00 P.M. Central Time in certified funds, to America’s Servicing Company, P.O. Box 37297, Baltimore, MD 21297-3297. If funds are not received by the above stated date, we will proceed to automatically accelerate your loan.”

       We agree with the plaintiff that evidentiary issues that the defendant raised before the trial court have not been presented for appellate review. We note, further, that the defendant has abandoned his initial claim of the applicability of federal law governing foreclosure of residential mortgages. Finally, we decline to consider the defendant’s claim, first raised in this appeal, that the terms of the promissory note, rather than the terms of the mortgage, state the applicable notice requirement.

       In the exercise of its equitable discretion on the remand, the court may consider a motion by the plaintiff to substitute a judgment of strict foreclosure for a judgment of foreclosure by sale and a motion for the award of attorney’s fees.


author: ROBINSON, J.

text:
    ROBERT B. GOLDEN v. LISA J. MANDEL
    (AC 28866)
    Gruendel, Robinson and Peters, Js.

      Argued April 21
    officially released September 23, 2008

      Samuel V. Schoonmaker TV, for the appellant (defendant).

      Hilary B. Miller, for the appellee (plaintiff).
   Opinion

ROBINSON, J.

The defendant, Lisa J. Mandel, appeals from the judgment of the trial court dissolving her marriage to the plaintiff, Robert B. Golden. On appeal, she claims that the court improperly (1) found that she made no contribution to the acquisition, preservation or appreciation of certain marital assets and (2) entered financial orders that were not supported by the evidence. We disagree and affirm the judgment of the trial court.

The court found the following facts. The plaintiff and the defendant were married on March 21, 1993, in New York. They have two minor children of the marriage, one bom in 1996 and the other in 1998. At the time of the dissolution, the plaintiff was fifty years old and the defendant was forty-five years old. The plaintiff is employed by Time Warner Cable, Inc., as a director of business affairs with a gross annual base salary of $128,750 per year; he received a bonus of $29,134 in March, 2007, for the 2006 calendar year. The defendant is currently self-employed, on a part-time basis, as a digital media consultant; her gross annual income is approximately $55,000. Both parties are in good health.

The parties jointly own the marital residence, which is located in the Riverside section of Greenwich. In addition to his interest in the marital residence, the plaintiff listed assets on his financial affidavit, including an inherited individual retirement account (IRA), other inherited assets placed in a revocable trust and three pension plans. The plaintiffs financial affidavit listed the value of the revocable tmst, net of margin loan, at $1,584,257 and the value of the inherited IRA at $542,917. In addition to her interest in the marital residence, the defendant listed assets that included a 401 (k) account. The court found that both parties were at fault equally for the breakdown of the marriage. Accordingly, the court rendered judgment dissolving the marriage.

In its financial orders, the court ordered that the plaintiff pay $422 weekly child support and $500 weekly periodic alimony to the defendant. The court stated that it considered the various elements set forth in General Statutes § 46b-81 and expressly found no contribution by the defendant to the acquisition, preservation or appreciation in value of the assets inherited by the plaintiff from his mother. The court declined to assign to the defendant any portion of the plaintiffs inherited assets. This appeal followed. Additional facts will be set forth as needed.

I

The defendant first claims that the court improperly found that she made no contribution to the acquisition, preservation or appreciation of certain assets that the plaintiff inherited from his mother. Specifically, she argues that this finding was clearly erroneous.

The defendant asserts that she contributed to the acquisition, preservation or appreciation of the inherited assets. She claims that she supported the family during the approximately two year period when the plaintiff was unemployed and that absent her earnings, the family would have been forced to deplete the inherited assets, which have remained untouched for the most part. By virtue of her working while the plaintiff was unemployed, the defendant claims that she contributed to the preservation of the inherited assets.

To address the defendant’s claim properly, we must determine whether there was a basis from which the court could have found that the defendant made no contribution to the acquisition, , appreciation or preservation of the assets. See Calo-Turner v. Turner, 83 Conn. App. 53, 55-57, 847 A.2d 1085 (2004). In its memorandum of decision, the court did not provide the basis or explanation for its conclusion that the defendant did not contribute to the acquisition, preservation or appreciation of the assets. The record reveals that the defendant did not seek an articulation of the basis of the court’s ruling. “An articulation may be necessary where the trial court fails completely to state any basis for its decision ... or where the basis, although stated, is unclear.” (Internal quotation marks omitted.) Martin v. Martin, 101 Conn. App. 106, 115 n.3, 920 A.2d 340 (2007). “It is the responsibility of the appellant to provide an adequate record for review as provided in [Practice Book §] 61-10. . . . Conclusions of the trial court cannot be reviewed where the appellant fails to establish through an adequate record that the trial court incorrectly applied the law or could not reasonably have concluded as it did . . . .” (Citations omitted; internal quotation marks omitted.) Bradley v. Randall, 63 Conn. App. 92, 95-96, 772 A.2d 722 (2001). When the trial court does not provide the necessary factual and legal conclusions, 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. See Calo-Turner v. Turner, supra, 56. Therefore, we decline to review the defendant’s claim.

II

The defendant next claims that the court entered financial orders that were not supported by the evidence. First, she argues that the court abused its discretion by entering financial orders that did not adequately consider the station of the parties and their minor children and the value of the parties’ estate. Additionally, she claims that the court improperly entered the awards of child support and alimony without evidentiary support.

“Our standard of review for financial orders in a dissolution action is clear. The trial court has broad discretion in fashioning its financial orders . . . .” Casey v. Casey, 82 Conn. App. 378, 383, 844 A.2d 250 (2004). “[T]his court will not disturb the trial court’s orders unless it has abused its legal discretion or its findings have no reasonable basis in fact. ... It is within the province of the trial court to find facts and draw proper inferences from the evidence presented. . . . [W]here the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, these facts are clearly erroneous.” (Internal quotation marks omitted.) Guarascio v. Guarascio, 105 Conn. App. 418, 421, 937 A.2d 1267 (2008).

A

We first address the defendant’s claim that the court’s orders did not properly consider the family’s station and the value of the parties’ estate. The defendant places particular emphasis on the fact that the court ordered the immediate sale of the family residence, which she alleges would impact her station and that of the minor children. We conclude that the court did not abuse its discretion in formulating the financial awards.

“The most pertinent definition of station in Webster, Third New International Dictionary, is social standing. A person’s social standing is strongly correlated to his standard of living, although other factors may be important as well.” (Internal quotation marks omitted.) Blake v. Blake, 207 Conn. 217, 232, 541 A.2d 1201 (1988). Station is one of the many criteria set out in General Statutes §§ 46b-81, 46b-82 and 46b-84 concerning assignment of property and transfer of title, alimony and child support, respectively. “In determining the assignment of marital property ... or alimony . . . a trial court must weigh the station or standard of living of the parties in light of the other statutory factors such as the length of the marriage, employability, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income.” (Internal quotation marks omitted.) Blake v. Blake, supra, 232; see also 24A Am. Jur. 2d 95, Divorce & Separation § 692 (1998) (“where a spouse who has been living extravagantly and has been accustomed to a standard of living that exceeds the other spouse’s means, he or she need not be continued to be supported at such a high standard”). The parties’ station is also relevant to the determination of child support awards. See Blake v. Blake, supra, 232. Pursuant to § 46b-81, “[t]he trial court is granted the authority ... to order the sale of the marital home without any act by either the husband or the wife, when in the judgment of the court it is the proper mode to carry the decree into effect.” (Internal quotation marks omitted.) Martin v. Martin, 99 Conn. App. 145, 154, 913 A.2d 451 (2007).

As noted previously, the court ordered alimony in the amount of $500 per week and child support in the amount of $422 per week. The defendant also was awarded 50 percent of the plaintiffs noninherited IRA, which was listed on the plaintiffs financial affidavit as containing $712,916, and all the contents of the marital home, which the defendant estimated to be worth $400,000. In calculating these awards, the court found that the parties “are of the same station, educational level, occupational skills and employability and needs.” The court also ordered the immediate sale of the marital residence, which had a fair market value of $2.5 million as of the date of the memorandum of decision, and the net proceeds were to be split equally between the parties.

Once the house is sold, the defendant asserts, she and the children may no longer to be able to afford to live in Greenwich on the alimony and child support awards combined with her weekly gross income from her employment, and this would significantly impact the minor children’s station because they have resided in the home since 2002. She claims that the children’s station is correlated with their home, standard of living, schools, activities and friends. Although the defendant argues that she will be unable to afford to live in Greenwich after the marital residence is sold, there is nothing in the record to support her contention that she will be unable to afford to purchase another house in Greenwich after the marital residence is sold and nothing in the record to support her contention that the children will necessarily be uprooted, forced to move to another town and enroll in a different school.

The defendant presented no evidence, and the court made no finding, of housing costs in Greenwich. This court is not a finder of fact. See Tracey v. Tracey, 97 Conn. App. 122, 129 n.3, 902 A.2d 729 (2006). As we cannot take judicial notice of housing costs in Greenwich, we cannot say that the court abused its discretion in ordering the sale of the marital residence. We are not persuaded by the defendant’s contention that she will not be able to maintain a residence in Greenwich on the basis of her current salary and the alimony and child support awards. The record reveals that for the past few years, she has been working only sixteen to twenty hours per week while earning approximately $55,000 per year. “[I]t is well established that the trial court may under appropriate circumstances in a marital dissolution proceeding base financial awards on the earning capacity of the parties rather than on actual earned income.” (Internal quotation marks omitted.) Weinstein v. Weinstein, 104 Conn. App. 482, 489, 934 A.2d 306 (2007), cert. denied, 285 Conn. 911, 943 A.2d 472 (2008). The defendant testified that she received a bachelor of arts degree and that when she was working full-time her salary reached approximately $150,000 per year. The defendant herself acknowledged during trial that she would almost certainly have to go back to work full-time. Under these circumstances, the financial awards were well within the court’s discretion, particularly considering the defendant’s earning capacity.

Finally, we address the defendant’s reliance on Blake. The defendant attempts to draw a parallel to the circumstances of the parties in Blake v. Blake, supra, 207 Conn. 217, in which the plaintiff wife brought only $10,000 in assets to the marriage but was awarded, among other things, the defendant husband’s interest in a lot in California worth $375,000 and $1.2 million to enable her to build a home in California comparable to the family’s home in Connecticut, at least in part because the parties had clearly enjoyed a high standard of living during their marriage. Id., 230, 232-33. The standard of living, however, was only one factor that the court considered in making its financial award. Id., 233 (“[i]n view of the parties’ standard of living, the length of the marriage, and the needs of the children, we conclude that the trial court did not abuse its discretion in its awards of marital assets, alimony and child support”). Likewise, here, the parties’ station was but one statutory factor to be taken into account by the court, and although the court is required to consider all of the statutory criteria, it does not need to reference all of the criteria explicitly in its decision or give each factor equal weight. See Siracusa v. Siracusa, 30 Conn. App. 560, 567, 621 A.2d 309 (1993).

B

The defendant also contends that the court abused its discretion by issuing child support and alimony orders that were premised on her guidelines worksheet, which did not accurately reflect the parties’ net income. We are not persuaded.

“A fundamental principle in dissolution actions is that a trial court may exercise broad discretion in awarding alimony and dividing property as long as it considers all relevant statutory criteria.” (Internal quotation marks omitted.) Cleary v. Cleary, 103 Conn. App. 798, 801, 930 A.2d 811 (2007). Pursuant to Practice Book § 25-30, each party is required to file certain statements during a dissolution or child support matter. The guidelines worksheet is based on net income; weekly gross income is listed on the first line on the worksheet, and the subsequent lines list various deductions, including federal income tax withheld and social security tax. See Regs., Conn. State Agencies § 46b-215a-5b. The guidelines are used by the court to determine a presumptive child support payment, which is to be deviated from only under extraordinary circumstances. See Aley v. Aley, 101 Conn. App. 220, 227-28, 922 A.2d 184 (2007).

The defendant claims that the court’s awards were in error because they were based on income numbers that were not supported by the evidence and were thus based on incorrect net incomes. After a careful review of the record, we conclude that there is no evidence that the court based the child support or alimony awards on incorrect net income numbers.

The defendant was awarded $422 per week in child support, the precise amount that she requested in her guidelines worksheet and which was $100 per week more than the amount in the plaintiffs guidelines worksheet. Furthermore, prior to trial, the parties filed a stipulation of uncontested matters that the court accepted as true. Among those items to which the parties stipulated was their gross base salaries (the plaintiff $128,750 per year and the defendant $55,000 per year) and payroll withholding for federal income tax (the plaintiff $24,774), social security tax (the plaintiff $7715), medicare tax (the plaintiff $1804), state income tax (the plaintiff $5373) and medical insurance ($5200). In addition, the parties stipulated that the plaintiff received a bonus from his employer of $29,134 in March, 2007, which was subject to withholding for federal income tax ($7284), social security tax ($1806), state income tax ($1457) and medicare tax ($422). The court in its memorandum of decision recited these stipulations before entering the child support and alimony orders.

The court’s orders were consistent with both the guidelines worksheet and, more importantly, the stipulations by the parties. To the extent that the defendant argues that the awards were based on unsupported net income numbers, we conclude that this argument is without merit. Although the parties did not explicitly stipulate to net income, the stipulation and the guidelines worksheet both begin with gross income numbers, and both clearly subtract from that number the appropriate deductions, resulting in the parties’ net income. The defendant cannot now quarrel with the use of numbers to which she herself stipulated. The corut also had evidence before it of the parties’ net and gross incomes in the stipulations, the parties’ worksheets and the financial affidavits of both parties. See Kelman v. Kelman, 86 Conn. App. 120, 123-24, 860 A.2d 292 (2004) (where court specifically stated that it took into account relevant statutes, parties’ testimony, financial affidavits, and child support guidelines worksheets, court’s decision was affirmed), cert. denied, 273 Conn. 911, 870 A.2d 1079 (2005). It follows from the proposition that “a party who fails to submit a child support guidelines worksheet is precluded from complaining of the alleged failure of the trial court to comply with the guidelines”; (internal quotation marks omitted) Tracey v. Tracey, supra, 97 Conn. App. 129; that a party who himself or herself submits a child support guidelines worksheet cannot complain when it is relied on by the court. This is particularly true considering that the court is required to rely on the presumptions created by the worksheet unless doing so would create inequitable circumstances.

Furthermore, the defendant makes no argument that special circumstances exist that would permit deviation from the presumptive awards contained in the guidelines. Affording the court every reasonable presumption in favor of the correctness of its decision, we conclude that it did not abuse its discretion.

The judgment is affirmed.

In this opinion the other judges concurred.

       The patties’ stipulation indicates that the residence is located in Riverside, but the defendant in her brief refers to their residence as being in the town of Greenwich. All further references to the parties’ residence will be to Greenwich in order to mirror the arguments in the defendant’s brief.

       The plaintiff testified that his mother died on July 1, 2000, and that he inherited the funds that are in the trust account, as well as the IRA, from his mother. The plaintiff established the Robert B. Golden Revocable Trust on August 28, 2000. The plaintiff further testified that the trust was established for the purpose of keeping the inherited money separate from the defendant’s property and that the defendant never had access to the funds in either the trust or the IRA.

       The court also ordered that the parties’ “Parental Responsibility Plan” be incorporated into the judgment. The “Parental Responsibility Plan” provided in part that the plaintiff and the defendant have joint legal custody of the minor children and that the children’s principal residence would be with the defendant.

       The court further ordered that the marital residence immediately be listed for sale and that the parties split the net proceeds equally. All of the contents of the marital home were awarded to the defendant, who, along with the children, was entitled to occupy the premises until the residence was sold. Additionally, the defendant was awarded 50 percent of the plaintiffs second IRA, consisting of money put aside by his employer, which is separate from the inherited IRA. There were also other awards involving life insurance, health insurance and medical expenses for the children.

       To the extent that the defendant claims that the court’s failure to award her any portion of the inherited assets undermined the equitable division of the parties’ assets, we find that the defendant failed to brief this claim adequately. See Grimm v. Grimm, 276 Conn. 377, 391 n.14, 886 A.2d 391 (2005), cert. denied, 547 U.S. 1148, 126 S. Ct. 2296, 164 L. Ed. 2d 815 (2006).

       The court stated that “[i]n considering the various elements stated in General Statutes § 46b-81, the court finds no contribution by the defendant to the acquisition, preservation or appreciation in value of the inherited assets received by the plaintiff as a result of the death of his mother. The court finds no reason to assign the defendant any portion of the plaintiffs inherited assets.” Section 46b-81 (a) provides in relevant part: “At the time of entering a decree . . . dissolving a marriage . . . pursuant to a complaint under section 46b-45, the Superior Court may assign to either the husband or wife all or any part of the estate of the other. ...”

       The parties had resided in the marital residence since November 1,2002, and both parties were still residing in the house as of March 13, 2007, the date of the limited contested trial. The sale of the residence automatically was stayed pending this appeal, and there is no indication that the automatic stay has been terminated. See Practice Book § 61-11.

       Notably, the defendant claimed monthly living expenses of $17,301 on the financial affidavit she submitted to the court (only $5325 of which she attributes to the mortgage payments and real estate taxes on the Greenwich residence, which the plaintiff, not the defendant, is paying pending the sale of the residence).

       This court has rejected the argument that station “refers to the lifestyle or standard of living of the parties during the marriage, including their commensurate expectations for the education and advancement of their children." (Emphasis added.) Hopfer v. Hopfer, 59 Conn. App. 452, 461, 757 A.2d 673 (2000).

       The defendant estimated in her brief that each party would receive approximately $700,070 upon the sale of the house. Implicit in the defendant’s argument is that this amount would be insufficient to purchase another residence in Greenwich. As we have no evidence before us of the cost of housing in Greenwich, we cannot determine whether there is any merit to her claim.

       Along the same lines, the defendant advances the argument that the court did not give proper consideration to the value of the parties’ estate in relation to their station and asserts that the parties spent assets to maintain their station for two years while the plaintiff was unemployed. It is well established that the parties’ estate is defined as the aggregate of the property and liabilities of each. See Schmidt v. Schmidt, 180 Conn. 184, 192, 429 A.2d 470 (1980). The defendant’s argument again pertains to the weight that the court gave this particular factor, and we are not persuaded by her argument.

       These statements include “a sworn statement ... of current income, expenses, assets and liabilities. . . . Notwithstanding the above, the court may render pendente lite and permanent orders, including judgment, in the absence of the opposing party’s sworn statement. . . . Where there is a minor child who requires support, the parties shall file a completed child support and arrearage guidelines worksheet at the time of any court hearing concerning child support; or at the time of a final hearing in an action for dissolution of marriage . . . .” Practice Book § 25-30.

       “General Statutes § 46b-215b requires the court to consider and to apply the child support and arrearage guidelines (guidelines) to all determinations of child support amounts. Section 46b-215a-2a of the guidelines, as embodied in the Regulations of Connecticut State Agencies, provides procedures for using the child support worksheet ... to determine the presumptive child support payments and the health care coverage contributions. The presumptive child support payments and health care coverage contributions indicated by the guidelines should be identical to the court’s orders for such payments and contributions by the noncustodial parent to the custodial parent pursuant to § 46b-215a-3 of the guidelines unless application of the guidelines is inequitable or inappropriate under the circumstances.” (Internal quotation marks omitted.) Aley v. Aley, supra, 101 Conn. App. 227-28. We note that although § 46b-215a-2a has been repealed, under § 46b-215-2b, the guidelines still create a presumptive support number.

       The defendant also claims that the court could not have based its award on the figures contained in her guidelines worksheet because the worksheet was completed prior to the start of trial. The fact that her guidelines worksheet was submitted prior to trial is irrelevant.

       A judgment rendered in accordance with such a stipulation is to be regarded and construed as a contract. Fusco v. Fusco, 266 Conn. 649, 654, 835 A.2d 6 (2003).


author: McLACHLAN, J.

text:
    SANDRA SODERLUND v. JANICE MERRIGAN ET AL.
    (AC 28875)
    Flynn, C. J., and McLachlan and West, Js.

      Argued April 21
    officially released September 23, 2008

      Bruce A. Chaplin, for the appellant (plaintiff).

      Deborah Leigh Moore, with whom was Kevin M. Casini, law student intern, for the appellees (defendants).
   Opinion

McLACHLAN, J.

In this negligence action, the plaintiff, Sandra Soderlund, appeals from the summary judgment rendered in favor of the defendants, Janice Merrigan, a Meriden police officer, and the city of Meriden (city). The plaintiff claimed that the defendants had a duty to remove an arrest warrant for her from the statewide police computer system and failed to do so. The court concluded that the plaintiffs claims were barred by the doctrine of governmental immunity. On appeal, the plaintiff contends that the court improperly granted the defendants’ motion for summary judgment because the defendants were not immune from liability for their negligence in failing to remove the arrest warrant from law enforcement records after the court had ordered the warrant vacated. We agree and, accordingly, reverse the judgment of the trial court.

The following facts are relevant to the resolution of the plaintiff’s appeal. On August 14, 1998, the Meriden police department (department) arrested the plaintiff and charged her with two separate offenses: one appearing on the criminal docket and one appearing on the motor vehicle docket. On January 21, 2000, the plaintiff failed to appear in court for a scheduled court date. As a result of her failure to appear, the court, Holden, J., issued an arrest warrant for the plaintiff for a failure to appear and set the bond at $1500. On March 9, 2000, the court vacated the arrest warrant. The court issued a “notice to vacate” (notice) the warrant in the criminal matter and sent the notice to the department. At that time, Merrigan was working as a court liaison officer for the department. She collected the notice, but, because she could not find the arrest warrant in her file, she did not process the notice. Instead, she stamped the notice with the words “not on file,” noted the date, initialed the document and returned it to the Meriden courthouse.

On March 13,2000, the court issued a notice to vacate in the motor vehicle case and handled it in the same manner as the March 9, 2000 notice to vacate. Similarly, after Merrigan realized that the warrant was not in the department’s computer system, she stamped the document with the notation, “not on file,” noted the date, initialed it and returned it to the Meriden courthouse.

On May 5,2000, the department entered the plaintiffs arrest warrant into the computer system. More than six months later, on Friday, January 27, 2001, the plaintiff was leaving a sports bar in Cheshire when she was stopped by police. On the basis of the January, 2000 arrest warrant, the plaintiff was taken to the Cheshire police department and then transported to the Meriden police department. The Meriden department did not have any record of the notice to vacate the arrest warrant, so it held the plaintiff in custody. The department allowed her to make several telephone calls, but she was unable to post bond. She spent the weekend in the department’s holding cell.

On Monday, January 29, 2001, the plaintiff was taken to the Meriden courthouse where court personnel determined that the warrant had been vacated. She was released immediately. Subsequently, the plaintiff commenced this action against the defendants, claiming that the department and Merrigan were negligent.

In her complaint, the plaintiff alleged that the defendants were negligent in failing to remove the arrest warrant from the police computer system pursuant to the notice and in accordance with General Statutes § 54-142a (a) and (e). On February 2, 2007, the defendants moved for summary judgment, asserting that the plaintiffs claims were barred by the doctrines of qualified immunity and governmental immunity, and that the plaintiff had failed to establish her common-law negligence claim. Particularly, the defendants argued that the plaintiffs claims do not “fall under any of the exceptions that abrogate governmental immunity involving discretionary acts” because “the plaintiff does not qualify as an identifiable victim subject to imminent harm.” In opposition, the plaintiff argued that there were material issues of fact and that she did fall under one of the exceptions that abrogates governmental immunity. She also claimed that Merrigan’s actions were not discretionary, but ministerial.

On May 22, 2007, the court, Holzberg, J., granted the defendants’ motion for summary judgment and issued its memorandum of decision on July 13, 2007. The court found that the manner in which a police officer performed his or her duties is discretionary and rejected the plaintiffs assertion that the acts of Merrigan were ministerial. The court rejected the plaintiffs argument that the defendants owed her a duty pursuant to § 54-142a, and it found that an arrest warrant for a failure to appear was not a final judgment and, therefore, § 54-142a was inapplicable. Furthermore, the court found that the plaintiff did not fall under any of the three exceptions to governmental immunity for discretionary acts. This appeal followed.

At the outset, we set forth the applicable standard of review. “Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law. ... On appeal, we must determine whether the legal conclusions reached by the trial court are legally and logically correct and whether they find support in the facts set out in the memorandum of decision of the trial court. . . . Our review of the trial court’s decision to grant the defendant’s motion for summary judgment is plenary.” (Internal quotation marks omitted.) Allen v. Cox, 285 Conn. 603, 609, 942 A.2d 296 (2008).

“Although the determination of whether official acts or omissions are ministerial or discretionary is normally a question of fact for the fact finder . . . there are cases where it is apparent from the complaint . . . [that] [t]he determination of whether an act or omission is discretionary in nature and, thus, whether governmental immunity may be successfully invoked pursuant to [General Statutes] § 52-557n (a) (2) (B), turns on the character of the act or omission complained of in the complaint. . . . Accordingly, where it is apparent from the complaint that the defendants’ allegedly negligent acts or omissions necessarily involved the exercise of judgment, and thus, necessarily were discretionary in nature, summary judgment is proper.” (Citation omitted; emphasis in original; internal quotation marks omitted.) Grignano v. Milford, 106 Conn. App. 648, 654-55, 943 A.2d 507 (2008). Here, the plaintiff claims that the defendants did not have the right to exercise their judgment, and, therefore, the duty was mandatory or ministerial. We agree.

The dispositive issue on appeal is whether the plaintiff’s claim is barred by the doctrine of governmental immunity. Therefore, a review of the following principles of governmental immunity is relevant to the resolution of this appeal.

“The [common-law] doctrines that determine the tort liability of municipal employees are well established. . . . Generally, a municipal employee is liable for the misperformance of ministerial acts, but has a qualified immunity in the performance of governmental acts. . . . Governmental acts are performed wholly for the direct benefit of the public and are supervisory or discretionary in nature. . . . The hallmark of a discretionary act is that it requires the exercise of judgment. . . . In contrast, [ministerial refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion. . . .

“Municipal officials are immunized from liability for negligence arising out of their discretionary acts in part because of the danger that a more expansive exposure to liability would cramp the exercise of official discretion beyond the limits desirable in our society. . . . Discretionary act immunity reflects a value judgment that—despite injury to a member of the public—the broader interest in having government officers and employees free to exercise judgment and discretion in their official functions, unhampered by fear of second-guessing and retaliatory lawsuits, outweighs the benefits to be had from imposing liability for that injury. . . . In contrast, municipal officers are not immune from liability for negligence arising out of their ministerial acts, defined as acts to be performed in a prescribed manner without the exercise of judgment or discretion. . . . This is because society has no analogous interest in permitting municipal officers to exercise judgment in the performance of ministerial acts. . . .

“There are three exceptions to discretionary act immunity. Each of these exceptions represents a situation in which the public official’s duty to act is [so] clear and unequivocal that the policy rationale underlying discretionary act immunity—to encourage municipal officers to exercise judgment—has no force. . . . First, liability may be imposed for a discretionary act when the alleged conduct involves malice, wantonness or intent to injure. . . . Second, liability may be imposed for a discretionary act when a statute provides for a cause of action against a municipality or municipal official for failure to enforce certain laws. . . . Third, liability may be imposed when the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm . . . .” (Citations omitted; internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 318-20, 907 A.2d 1188 (2006).

The plaintiff asserts that the defendants had a mandatory duty to clear the police files and to remove the arrest warrant for the plaintiffs failure to appear as was ordered by the court. The plaintiff maintains that this mandatory duty is created by § 54-142a. Section 54-142a (a) requires that when the accused in a criminal matter is found, by a final judgment, to be not guilty or the charge is dismissed, the police and court records relating to that matter should be erased. The plaintiff argues that an order to vacate the arrest warrant acts as a dismissal in that case. The court, however, concluded that an arrest warrant for a failure to appear was not a final judgment and, therefore, § 54-142a was inapplicable. Moreover, the court concluded that even if § 54-142a created a duty to erase the warrant, “it does not prescribe the manner in which it must be done.” Although this finding of the court is factually accurate because there is nothing that prescribes how an arrest warrant should be vacated, we believe that the pertinent issue was characterized inaccurately. The issue is not whether the procedure to vacate the warrant was mandatory, but whether it was mandatory to vacate the warrant.

This case turns on whether obeying an order from the court to vacate an arrest warrant is a mandatory-ministerial duty or a discretionary duty. “[A public officer] . . . has a qualified immunity in the performance of a governmental duty, but he may be hable if he misperforms a ministerial act, as opposed to a discretionary act. . . . The hallmark of a discretionary act is that it requires the exercise of judgment. On the other hand, ministerial acts are performed in a prescribed manner without the exercise of judgment or discretion as to the propriety of the action.” (Internal quotation marks omitted.) Lombardi Rest Home, Inc. v. Richter, 63 Conn. App. 646, 656, 778 A.2d 230 (2001). Here, the conduct complained of does not fall within the definition of a discretionary act because it does not involve the exercise of judgment and discretion. Instead, the order to vacate an arrest warrant is mandatoiy. It does not matter how the order is vacated, but, simply put, it must be vacated.

In reaching this conclusion, this court follows a line of cases from other jurisdictions that have concerned liability when a person has been arrested on a warrant that has been vacated, wrongly issued, dismissed or retired. See, e.g., Bayou La Batre v. Robinson, 785 So. 2d 1128 (Ala. 2000) (finding that when magistrate did not properly transmit warrant-recall order to police department causing plaintiffs arrest on warrant, magistrate did not exercise judgment in discharge of duties and, therefore, plaintiff entitled to proceed against municipality on negligence claim); Cook v. Topeka, 232 Kan. 334, 339, 654 P.2d 953 (1982) (finding clerk has no discretion on whether to recall bench warrant after traffic fine payment issued because “routine recall of a warrant by the municipal court clerk upon payment of the traffic fine is wholly ministerial in nature”); Smith v. Lewis, 669 S.W.2d 558 (Mo. App. 1983) (finding that clerks’ actions in causing arrest could have been ministerial); Shaw v. Camillus, 288 App. Div. 2d 902, 732 N.Y.S.2d 606 (2001) (town’s failure to retire warrant ministerial in nature); Glowinski v. Braun, 105 App. Div. 2d 1153, 482 N.Y.S.2d 395 (1984) (liability for negligent service of warrant by deputy, appeal dismissed, 65 N.Y.2d 637 (1985); Stewart v. State, 18 Misc. 3d 236, 239, 849 N.Y.S.2d 374 (2007) (“it is customarily the responsibility of court personnel to cancel or retire warrants, a task that has been characterized by this court as ministerial in nature”); Schwandt v. State, 4 Misc. 3d 405, 777 N.Y.S.2d 599 (2004) (duty to transmit warrant cancellation information to police agency ministerial in nature and failure to transmit such information constituted breach of duty owed to plaintiff); Calhoun v. Providence, 120 R.I. 619, 633-34, 390 A.2d 350 (1978) (finding that because of “bookkeeping slip-up, either the issuance of the capias was never docketed or the recall order was never entered” and clerk not immune for failure to perform ministerial function). All of these courts have held that when a judge directs or orders a warrant recalled, retired or dismissed, or there is a law that operates to this effect, clerks, magistrates or other personnel are not absolutely protected by governmental immunity because the act of retiring or vacating a warrant is ministerial.

In the present case, the defendants contend that the act of vacating the warrant was not ministerial and that the city’s actions and Merrigan’s actions, as a police officer, are subject to discretionary act immunity. We are faced with an issue of first impression in Connecticut, namely, whether a judge’s direction to a law enforcement officer not directly responsible to the judicial authority has the same legal effect as a judge’s direction to a judicial employee. We conclude that on the basis of the narrow facts of the present case, a judge’s order to vacate an arrest warrant is mandatory even upon a police officer.

Although police officers, and police departments, are typically protected by discretionary act immunity, the mere status of a defendant as a police officer does not itself impart a cloak of immunity. The policy behind discretionary act immunity for police officers is based on the desire to encourage police officers to use their discretion in the performance of their typical duties. “Discretionary act immunity reflects a value judgment that—despite injury to a member of the public—the broader interest in having government officers and employees free to exercise judgment and discretion in their official functions, unhampered by fear of second-guessing and retaliatory lawsuits, outweighs the benefits to be had from imposing liability for that injury.” (Internal quotation marks omitted.) Grignano v. Milford, supra, 106 Conn. App. 654. Police officers are protected by discretionary act immunity when they perform the typical functions of a police officer. Nevertheless, under the facts of this case, when a law enforcement officer has been ordered by the court to vacate an arrest warrant, the broad protections of discretionary act immunity do not apply.

Merrigan’s duty to vacate the warrant is not a typical duty of a police officer, nor is it discretionary. The court ordered the warrant vacated and issued notices to this effect. The defendants should have vacated the warrant, and Merrigan should have taken steps to vacate the warrant from the computer system because it was at the direction of the court. It does not matter how she performed this duty, but she was required to vacate the warrant. From the record on the motion for summary judgment, it is unclear exactly what misstep occurred and whether it occurred at the courthouse or the police station. What is clear, however, is that a court order to vacate an arrest warrant is mandatory. If the defendants failed in their duty to vacate the warrant, they failed to perform a ministerial act. Therefore, the plaintiffs claim is not barred by governmental immunity, and summary judgment on the basis of governmental immunity should not have been rendered.

There are questions of material fact at issue in the present case. There is conflicting testimony as to where the missteps occurred. We have no opinion as to whether the plaintiff can prove that the defendants were negligent in failing to vacate the warrant. Rather, we simply conclude that governmental immunity does not protect the defendants against the plaintiffs claim. Therefore, summary judgment was not appropriate at this phase of the litigation.

The judgment is reversed and the case is remanded for further proceedings according to law.

In this opinion the other judges concurred.

       On appeal, the plaintiff also asserted that even if the defendants did not have a mandatory duty that abrogated governmental immunity, her claim falls under two of the exceptions to discretionary act immunity. Furthermore, the plaintiff asserted a public policy argument in support of her claim that summary judgment as a matter of law was inappropriate in the present case. Because this court concludes, on the narrow facts of this case, that there exists triable issues of fact and that the duty to vacate an arrest warrant pursuant to a court order is mandatory and, therefore, a ministerial duty, we do not reach the other claims.

       The plaintiff also had commenced an action against the defendants in federal court. On or about January 25, 2005, however, the federal court dismissed the action for lack of jurisdiction.

       Specifically, the plaintiff alleged that the liability of the city was premised on General Statutes § 52-557n (a), which provides in relevant part: “(1) Except as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by: (A) The negligent acts or omissions of such political subdivision or any employee, officer or agent thereof acting within the scope of his employment or official duties . . . .”
      In her three count negligence action against the defendants, the plaintiff claimed indemnity from the city for the “negligence and carelessness” of Merrigan.

       General Statutes § 54-142a (a) provides in relevant part: “Whenever in any criminal case, on or after October 1, 1969, the accused, by a final judgment, is found not guilty of the charge or the charge is dismissed, all police and court records and records of any state’s attorney pertaining to such charge shall be erased upon the expiration of the time to file a writ of error or take an appeal, if an appeal is not taken, or upon final determination of the appeal sustaining a finding of not guilty or a dismissal, if an appeal is taken. . . .”
      Moreover, § 54-142a (e) provides in relevant part: “The clerk of the court ... or person charged with the retention and control of such records shall forward a notice of such erasure to any law enforcement agency to which he knows information concerning the arrest has been disseminated and such disseminated information shall be erased from the records of such law enforcement agency. ...” (Emphasis added.) General Statutes § 54-142a (e).
      The plaintiff also relied on the language affixed to the court notice to support her contention that there is a mandatory duty to erase the warrant. The language at issue was in bold print and stated that “[ejxecution of this warrant after receipt of this notice may result in claims for money damages against the state of Connecticut and liability for civil money damages imposed against your agency on behalf of this defendant.” The court rejected the plaintiffs allegation that the notice contained “specific mandated instructions by the Superior Court to locate the original warrant and all copies of the warrant and return them to the Superior Court immediately . . . .” Instead, the court found that the plaintiff “failed to allege and prove the existence of any ordinance, regulation, rule, policy or any clear directive requiring Merrigan to act in any prescribed manner with respect to the handling of the notices to vacate arrest warrants or requiring the city . . . to train and supervise the police officers in a prescribed manner.”

       See, e.g., Shore v. Stonington, 187 Conn. 147, 153, 444 A.2d 1379 (1982); Sestito v. Groton, 178 Conn. 520, 527, 423 A.2d 165 (1979); Stiebitz v. Mahoney, 144 Conn. 443, 446, 134 A.2d 71 (1957); see also Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 180, 544 A.2d 1185 (1988) (“[i]t is firmly established that the operation of a police department is a governmental function, and that the acts or omissions in connection therewith ordinarily do not give rise to liability on the part of the municipality” [internal quotation marks omitted]).

       The pivotal case concerning discretionary act immunity and police officers is Shore v. Stonington, 187 Conn. 147, 444 A.2d 1379 (1982), which is one of the first cases that involved this exception to discretionary act immunity. In Shore, the plaintiff, whose decedent was killed by a drunken driver who had been stopped earlier by a municipal police officer, brought an action in negligence against the municipality and the police officer. Id., 148. Our Supreme Court concluded that the defendants were shielded from liability because the act complained of was discretionary and that the imminent harm exception did not apply because during the police officer’s encounter with the drunken driver, the police officer could not have been aware that the driver’s conduct threatened an identifiable victim with imminent harm. Id., 154. Shore illustrates the typical public functions of a police officer that call for the officer to use her discretion to perform her duties.

       We note that the court decided the motion as a matter of law and, therefore, did not need to consider any factual issues.