author: SPEAR, J.

text:
    STATE OF CONNECTICUT v. JOHN TYLER FUESSENICH
    (AC 16605)
    Spear, Hennessy and Daly, Js.

      Argued April 27
    officially released September 1, 1998

      Rita M. Shair, assistant state’s attorney, with whom were Frank Maco, state’s attorney, and, on the brief, Guy Wolf, senior assistant state’s attorney, for the appellant (state).

      Patrick S. Bristol, with whom were Hubert J. Santos and Hope C. Seeley, for the appellee (defendant).
   Opinion

SPEAR, J.

The state appeals from the trial court’s dismissal of a violation of probation charge that was filed against the defendant. The state claims as a threshold matter that a probation revocation hearing is a criminal case from which an appeal can be taken pursuant to General Statutes § 54-96. The state also claims that the trial court improperly (1) suppressed test results and (2) found that the defendant’s probation officer exceeded his statutory authority by requiring the defendant to submit to urinalysis as a condition of probation. We agree and reverse the judgment of the trial court.

The following facts and procedural histoiy are relevant to this appeal. On July 11, 1995, the defendant pleaded guilty to three counts of tampering with evidence in violation of General Statutes § 53a-l 15. He was sentenced to four years imprisonment with execution suspended and three years probation. The trial court issued a probation order that provided in relevant part: “It is ordered and adjudged that . . . [s]aid defendant during the probationary term fixed shall abide by the written statement of the conditions of probation furnished by the probation officer and the instructions given regarding the same.” Thereafter, the defendant was assigned a probation officer. Upon meeting with the defendant the following day, the probation officer required the defendant to sign a form that advised the defendant of his rights and duties with respect to his probation, as well as the conditions of his probation. The written statement contained a drug testing condition that was included by the probation officer. This condition was not expressly included by the trial court as a condition of the defendant’s probation. The next day, the clerk of the court issued a probation order requiring the defendant to “abide by the written statement of the conditions of probation furnished by the probation officer and the instructions given regarding the same.” The defendant’s probation officer thereafter required the defendant to provide a specimen for urinalysis. This specimen tested positive for cocaine on August 14, 1995. The probation officer then obtained an arrest warrant for the defendant for the alleged violation of the conditions of his probation. Specifically, the probation officer alleged that the defendant tested positive for cocaine use in violation of his probation condition that he “not violate any criminal law.” The defendant was then charged with violating the terms of his probation.

The defendant filed a motion to dismiss the violation of probation charge and to exclude evidence of the test results. In his motion, he asserted that the probation officer exceeded his statutory authority, and violated both the defendant’s state and federal constitutional rights by requiring him to submit to urinalysis. The defendant also claimed that because there was no evidence in the sentencing record relating to drug use or abuse by the defendant, the urinalysis condition is not otherwise reasonably related to the tampering with evidence conviction. He further argued that the requirement that he submit to random drug testing therefore violated his right to be free from unreasonable searches and seizures as provided in the fourth amendment to the United States constitution and article first, §§ 7, 8 and 20, of the constitution of Connecticut. After the conclusion of the defendant’s probation revocation hearing, the trial court, Pickett, J., suppressed the urinalysis results, relying on Practice Book § 821, now § 41-12, and State v. Marsala, 216 Conn. 150, 156, 579 A.2d 58 (1990). The trial court concluded that “the evidence against the defendant was obtained in excess of statutoiy authority and in violation of his right to be free from unreasonable searches and seizure under article first, § 7, of the constitution of Connecticut.” Thereafter, the state represented that it had no other evidence and the trial court, Walsh, J., dismissed the violation of probation charge. The trial court granted the state’s motion for permission to appeal the trial court’s ruling. This appeal followed.

I

We first address the jurisdictional question of whether a probation revocation hearing is a criminal case that can be appealed to this court pursuant to § 54-96. The state claims that a probation revocation hearing is a continuing consequence of the original criminal conviction that sufficiently relates back to the original criminal proceeding so as to make this a criminal case.

Our Supreme Court has stated that “[t]he element of ‘punishment’ in probation revocation of [a] defendant is attributable to the crime for which he was originally convicted and sentenced. Thus, any sentence [the] defendant had to serve as the result of the violation of the special condition was ‘punishment’ for the crime of which he had originally been convicted. Revocation is a continuing consequence of the original conviction from which probation was granted.” State v. Smith, 207 Conn. 152, 178, 540 A.2d 679 (1988). “Because [r]evocation is a continuing consequence of the original conviction from which probation was granted . . . and the inherent authority to convict and sentence a defendant flows from the authority to adjudicate a criminal cause of action, the subject matter jurisdiction over a probation revocation proceeding derives from the original presentment of the information.” (Citation omitted; internal quotation marks omitted.) State v. Carey, 222 Conn. 299, 306, 610 A.2d 1147 (1992); see also Liistro v. Robinson, 170 Conn. 116, 128, 365 A.2d 109 (1976).

“Subject matter jurisdiction involves the authority of a court to adjudicate the type of controversy presented by the action before it.” State v. Carey, supra, 222 Conn. 304; 1 Restatement (Second), Judgments § 11 (1982). “Jurisdiction involves the power in a court to hear and determine the cause of action presented to it and its source is the constitutional and statutory provisions by which it is created. Andrew Ansaldi Co. v. Planning & Zoning Commission, 207 Conn. 67, 73, 540 A.2d 59 (1988) (Shea, J., concurring), quoting Connecticut State Employees Association, Inc. v. Connecticut Personnel Policy Board, 165 Conn. 448, 456, 334 A.2d 909 (1973).” (Internal quotation marks omitted.) State v. Carey, supra, 305. Furthermore, article fifth, § 1, of the constitution of Connecticut provides in relevant part that “[t]he powers and jurisdiction of [the] courts shall be defined by law.” General Statutes § 51-164s provides in relevant part that “[t]he superior court shall be the sole court of original jurisdiction for all causes of action, except such actions over which the courts of probate have original jurisdiction, as provided by statute. . . .” Moreover, “[t]he question of whether the court has such jurisdiction . . . must be informed by the established principle that every presumption is to be indulged in favor of jurisdiction.” (Internal quotation marks omitted.) State v. Carey, supra, 305, quoting Lauer v. Zoning Commission, 220 Conn. 455, 460, 600 A.2d 310 (1991).

We conclude that while this case is not a criminal prosecution, it is, nonetheless, a criminal case. This court, therefore, has jurisdiction to consider the appeal pursuant to § 54-96.

II

The state next claims that the trial court improperly determined that the defendant’s probation officer exceeded his authority in requiring the defendant to submit to urinalysis as a condition of probation. The state specifically contends that requiring the defendant to submit to urinalysis under the circumstances of this case was reasonable and that in doing so, the probation officer was acting within his statutory authority pursuant to General Statutes § 53a-30 (b).

Specifically, § 53a-30 (b) provides that “[w]hen a defendant has been sentenced to a period of probation, the Office of Adult Probation may require that the defendant comply with any or all conditions which the court could have imposed under subsection (a) which are not inconsistent with any condition actually imposed by the court.” (Emphasis added.) Additionally, our Supreme Court has noted that § 53a-30 (b) expressly allows either the judge or the probation office to impose reasonable conditions of probation, and such an imposition is not an illegal delegation of the judicial function. State v. Roberson, 165 Conn. 73, 76 n.1, 327 A.2d 556 (1973). Moreover, “[statutes authorizing probation, while setting parameters for doing so, have been very often construed to give the court broad discretion in imposing conditions.” (Internal quotation marks omitted.) State v. Pieger, 240 Conn. 639, 647, 692 A.2d 1273 (1997); State v. Smith, supra, 207 Conn. 167. “[I]n determining whether a condition of probation [is proper], a reviewing court should evaluate the condition imposed under our Adult Probation Act in the following context: The conditions must be reasonably related to the purposes of the [Probation] Act. Consideration of three factors is required to determine whether a reasonable relationship exists: (1) the purposes sought to be served by probation; (2) the extent to which constitutional rights enjoyed by law-abiding citizens should be accorded to probationers; and (3) the legitimate needs of law enforcement.” (Internal quotation marks omitted.) State v. Smith, supra, 207 Conn. 170.

Here, the state maintains that urinalysis is a reasonable condition of probation because its purpose is to ensure that the defendant is complying with the terms of his probation. Our Supreme Court has stated that “[s]ince probation is, first and foremost, a penal alternative to incarceration—its objectives are to foster the offender’s reformation and to preserve the public’s safety—a sentencing court must have the discretion to fashion those conditions of probation it deems necessary to ensure that the individual successfully completes the terms of probation.” Id., 168-69; United States v. Williams, 787 F.2d 1182, 1185 (7th Cir. 1986).

With respect to the extent that constitutional rights should be accorded to probationers, our Supreme Court has recognized that probationers have a diminished expectation of privacy because of their probationary status. State v. Smith, supra, 207 Conn. 174. “As with parolees, it may be crucial to the success of a probation program for a probation officer to have access to some information that a probationer may be unwilling to divulge and so a probation officer needs to be able to act in a manner that could not be tolerated if done by a policeman or other agent of the state with respect to an ordinary citizen under the fourth amendment.” (Internal quotation marks omitted.) Id., 175.

“Although the fourth amendment generally requires a warrant based on probable cause before a search occurs, exceptions exist to this requirement when a legitimate governmental purpose makes the intrusion into one’s privacy reasonable. . . . This is consistent with the diminished expectation of privacy that a probationer ... is to expect in this governmental program to normalize his relations with society.” (Citations omitted.) Id., 174; United States v. Scott, 678 F.2d 32 (5th Cir. 1982).

Regarding the legitimate needs of law enforcement, our Supreme Court has stated that “the state has a legitimate interest in accurate [fact-finding] in probation revocation proceedings. This interest is clearly furthered by the admission of all rehable evidence, even that which is arguably obtained in violation of the fourth amendment. In addition, the state has an interest in deterring illegal searches and seizures. This interest, however, is not served by the exclusion of illegally seized evidence in probation revocation proceedings when the offending officer was unaware of the suspect’s probationary status. We conclude that failure to apply the exclusionary rule in such circumstances is rationally related to legitimate state interests. ” Payne v. Robinson, 207 Conn. 565, 574-75, 541 A.2d 504, cert. denied, 488 U.S. 898, 109 S. Ct. 242, 102 L. Ed. 2d 230 (1988).

On the basis of our review of the record in this case, and our analysis of the factors in Smith that are requisite to determining whether the conditions of a defendant’s probation are reasonable, we conclude that the urinalysis in this case was a reasonable condition of the defendant’s probation and was, therefore, improperly suppressed by the trial court.

Ill

The state finally argues that the trial court improperly suppressed the defendant’s urinalysis results in the probation revocation hearing and, as a result, improperly dismissed the violation of probation charge. Specifically, the state maintains that because the exclusionary rule does not apply to probation revocation proceedings, the test results were not illegally obtained and were, therefore, improperly suppressed by the trial court. Our analysis here is guided by our Supreme Court’s decision in Payne v. Robinson, supra, 207 Conn. 565, where the court determined that the exclusionary rule did not apply to probation revocation hearings. In Payne, the probationer was stopped in his automobile by a police officer who had information from a complainant that the probationer had threatened the complainant with a gun. While performing a warrantless search of the probationer’s car, the officer found a loaded revolver under the driver’s seat. The officer arrested the probationer on charges of threatening in violation of General Statutes § 53a-62 and of carrying a dangerous weapon in a motor vehicle in violation of General Statutes § 29-38. The probationer was subsequently charged with violating the conditions of his probation pursuant to General Statutes § 53a-32 (b). The Payne court observed that “[t]he purpose of probation revocation proceedings is to determine whether a probationer is complying with the conditions of his probation. United States v. Winsett, 518 F.2d 51, 55 (9th Cir. 1975) .... In such proceedings, the government has an interest in accurate [fact-finding] that is likely to be impaired when otherwise reliable and relevant evidence is excluded from the proceeding. . . . Against this interest, we must balance the deterrent effect that may result from applying the exclusionary rule to probation hearings under the facts of this case. We conclude that application of the rule would at best achieve only a marginal deterrent effect.” (Citations omitted.) Payne v. Robinson, supra, 571; State v. Jacobs, 229 Conn. 385, 391, 641 A.2d 1351 (1994). The Payne court noted that “[t]he purpose of the exclusionary rule is not to redress the injury to the privacy of the search victim .... Instead, the rule’s prime purpose is to deter future unlawful police conduct and thereby effectuate the guarantee of the Fourth Amendment against unreasonable searches and seizures .... Application of the rule is thus appropriate in circumstances in which this purpose is likely to be furthered.” (Internal quotation marks omitted.) Payne v. Robinson, supra, 570; see United States v. Calandra, 414 U.S. 338, 347, 94 S. Ct. 613, 38 L. Ed. 2d 561 (1974).

Here, it was not a police officer, but, rather, the defendant’s probation officer who required the defendant to submit a urine sample for drug testing. The fact that the probation officer obviously knew of the defendant’s probationary status does not make this case analogous to that of a police officer who is aware that a person is on probation. There was no police participation in requiring the defendant to submit to urinalysis, and the probation officer was acting in accordance with conditions to which the defendant had agreed at the initial meeting of the defendant and the probation officer. Probation officers act under the auspices of the judicial branch in requiring the defendant to submit to conditions of probation. State v. Jacobs, supra, 229 Conn. 393. “Indeed, as State v. Smith . . . makes clear, the probation process operates as an arm of the judiciary, not of the police or prosecution.” (Citation omitted.) States. Jacobs, supra, 393. Thus, when a probation officer demands a probationer’s compliance with a condition of probation, he or she is acting as a representative of the judicial branch and not as a police officer. Applying the exclusionary rule to probation revocation hearings would make it more difficult for probation officers to perform properly their job of helping to ensure the rehabilitation of offenders. See State v. Smith, supra, 207 Conn. 177.

The purpose of the exclusionary rule, to discourage improper police procedure, would not be furthered by applying the exclusionary rule to probation revocation hearings and is inapplicable to the present case. Because Payne instructs that the exclusionary rule does not apply to probation revocation hearings, the trial court’s suppression of the urinalysis results was improper.

The judgment is reversed and the case is remanded for a new probation revocation hearing at which the urinalysis results will be admissible.

In this opinion the other judges concurred.

       This appeal has been consolidated with both the state’s civil appeal from the same judgment (AC 16487) and the defendant’s appeal from the trial court’s judgment modifying and enlarging the conditions of his probation to include a drug testing provision (AC 16486). Decisions on those appeals have been published separately.

       General Statutes § 54-96 provides: “Appeals from the rulings and decisions of the Superior Court, upon all questions of law arising on the trial of criminal cases, may be taken by the state, with the permission of the presiding judge, to the Supreme Court or to the Appellate Court, in the same manner and to the same effect as if made by the accused.” This court, in response to the defendant’s motion to dismiss both of the state’s appeals, ordered the parties to brief the issue of whether this is a criminal or civil case for appeal purposes.

       The defendant originally was charged with murder in violation of General Statutes § 53a-54a. The defendant’s initial trial was declared a mistrial, and he was acquitted of the murder charge after the second trial.

       The form set forth ten conditions of probation. The relevant conditions for purposes of this appeal are: “(1) Do not violate any criminal law of the United States, this state or any other state or territory . . . [and] (7) Submit to any medical and/or psychological examination, urinalysis, and/or counseling sessions as required by the Court, and submit to any alcohol and/or drug testing required by the Probation Officer.” The form also stated that the defendant could be arrested and his probation revoked for not complying with the conditions of probation that were listed on the form.

       The defendant claims that he never received this order.

       See footnote 2.

       The defendant argues that the present case is neither a criminal nor a civil case for appeal purposes and, thus, no appeal may be taken pursuant to General Statutes § 54-96.

       On July 21, 1998, the defendant filed a motion to dismiss the state’s appeal and a motion for permission to withdraw his appeal. The defendant claimed that the appeal was moot because his probationary term expired and he was released from probation on July 11, 1998. We denied the motions because, pursuant to General Statutes § 53a-31 (b), the period of the sentence had been stayed. Section 53a-31 (b) provides in relevant part that the “[issuance of a warrant or notice to appear for violation pursuant to section 53a-32, shall interrupt the period of the sentence as of the date of such issuance until a final determination as to the violation has been made by the court. . . .”

       At trial, the defendant argued that the probation officer exceeded his statutory authority by imposing a condition of urinalysis that the trial court could not have imposed. This contention is without merit because drug testing could have been originally imposed by the trial court. Our Supreme Court, has stated that “restrictions [on a probationer] are meant to assure that, the probation serves as a period of genuine rehabilitation and that, the community [not be harmed] by the probationer's being at large. . . . Moreover, had the trial court [imposed a condition of drug testing], it would not have unduly intruded on any constitutionally protected right to which the defendant would have been entitled.” (Citation omitted; internal quotation marks omitted.) State v. Smith, supra, 207 Conn. 170. The defendant also maintains that he was coerced into signing the probation form and accepting all the conditions of probation. This contention also fails, however, because our Supreme Court has stated that “while a potential probationer may reject the offer of probation, if he accepts it, he must accept all the conditions sought and cannot accept some and reject others.” Id., 169, citing People v. Oppenheimer, 236 Cal. App. 2d 863, 866, 46 Cal. Rptr. 476 (1965), and N. Cohen & J. Gobert, The Law of Probation and Parole (1983) § 5.07, p. 205.

       General Statutes § 53a-30 (b) provides: “When a defendant has been sentenced to aperiod of probation, the Office of Adult Probation may require that the defendant comply with any or all conditions which the court could have imposed under subsection (a) which are not inconsistent with any condition actually imposed by the court.”
      General Statutes § 53a-30 (a) provides in relevant part: “When imposing sentence of probation or conditional discharge, the court may, as a condition of the sentence, order that the defendant ... (7) refrain from violating any criminal law of the United States, this state or any other state . . .

       The state further argues that even if the urine sample was illegally obtained, the exclusionary rule is not applicable to a violation of probation hearing because such a proceeding is not a criminal prosecution.

       The fact that the probationer was on probation was not known to the police officer at the time of the stop.

       General Statutes § 53a-32 (b) provides in relevant part: “No such revocation shall be ordered, except upon consideration of the whole record and unless such violation [of probation] is established by reliable and probative evidence and by a preponderance of the evidence.”

       The Payne court further concluded that while “the exclusionary rule does not apply to this case, we do not reach the question of whether the exelusionary rule would apply in probation revocation proceedings when the police officer who had conducted the search was aware or had reason to be aware of the suspect’s probationary status. If illegally obtained evidence was admissible in such circumstances, the police officer might very well discount the fact that such evidence was inadmissible at a criminal trial, believing that incarceration of the probationer would instead be achieved through the revocation of his probation. Application of the exclusionary rule to the probation hearing might therefore contribute significantly to the deterrence of illegal searches.” Payne v. Robinson, supra, 207 Conn. 573.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE OF CONNECTICUT v. JOHN TYLER FUESSENICH
    (AC 16487)
    Spear, Hennessy and Daly, Js.
    Argued April 27
    officially released September 1, 1998

      Rita M. Shair, assistant state’s attorney, with whom were Frank Maco, state’s attorney, and, on the brief, Guy Wolf, senior assistant state’s attorney, for the appellant (state).

      Patrick S. Bristol, with whom were Hubert J. Santos and Hope C. Seeley, for the appellee (defendant).
   Opinion

PER CURIAM.

After a review of the record and briefs, and after hearing from the parties at oral argument, we conclude that this civil appeal by the state should be dismissed.

This appeal was consolidated with both the state’s criminal appeal from the same judgment (AC 16605) and the defendant’s appeal from the trial court’s judgment modifying and enlarging the conditions of his probation to include a drug testing provision (AC 16486). The state filed this civil appeal in the event that the trial court failed to grant the state’s request for permission to appeal.

In State v. Fuessenich, 50 Conn. App. 187, 717 A.2d 801 (1998), we addressed the question of whether a violation of probation proceeding was a criminal or civil case. We concluded that a violation of probation proceeding is a criminal case and an appeal could be taken pursuant to General Statutes § 54-96.

The appeal is dismissed.

       General Statutes § 54-96 provides: “Appeals from the rulings and decisions of the Superior Court, upon all questions of law arising on the trial of criminal cases, may be taken by the state, with the permission of the presiding judge, to the Supreme Court or to the Appellate Court, in the same manner and to the same effect as if made by the accused.”


text:
    STATE OF CONNECTICUT v. JOHN TYLER FUESSENICH
    (AC 16486)
    Spear, Hennessy and Daly, Js.
    Argued April 27
    officially released September 1, 1998

      Patrick S. Bristol, with whom were Hubert J. Santos and Hope C. Seeley, for the appellant (defendant).

      Rita M. Shair, assistant state’s attorney, with whom were Frank Maco, state’s attorney, and, on the brief, Guy Wolf, senior assistant state’s attorney, for the appellee (state).
   Opinion

PER CURIAM.

After a review of the record and briefs, and after hearing from the parties at oral argument, we conclude that the defendant’s appeal from the trial court’s judgment modifying and enlarging the conditions of his probation to include a drug testing provision should be dismissed as moot.

This appeal was consolidated with both the state’s criminal appeal from the judgment of dismissal of the violation of probation proceeding and the state’s civil appeal from the same judgment. See State v. Fuessen-ich, 50 Conn. App. 187, 717 A.2d 801 (1998) (AC 16605), and State v. Fuessenich, 50 Conn. App. 199, 714 A.2d 728 (1998) (AC 16487).

The defendant claims that the trial court improperly granted the state’s motion to modify the conditions of probation. In State v. Fuessenich, supra, 50 Conn. App. 187, we concluded that the defendant’s probation officer properly included drug testing as a condition of probation because the trial court could have originally imposed the condition under the circumstances of the case. Because the probation officer properly added the drug testing condition, modification or enlargement is no longer necessary. This appeal is therefore moot.

The appeal is dismissed.


text:
    ROBERT B. AUGUST v. ROBERT R. MORAN, JR., ET AL.
    (AC 17152)
    Foti, Spear and Dupont, Js.
    Argued May 4
    officially released September 1, 1998

      Henry C. Ide, for the appellant (plaintiff).

      Walter R. Hampton, Jr., for the appellees (defendants).
   Opinion

SPEAR, J.

The plaintiff, Robert B. August, appeals from the summary judgment rendered by the trial court in favor of the defendants, Robert R. Moran, Jr., Philip J. Carignan and Glenn E. Knierim, Jr., in August’s action for an accounting of his partnership interest in the former law firm of August and Moran. August claims that the trial court improperly concluded that his interest in August and Moran was fully determined in prior litigation and, therefore, he was barred in this action by the doctrine of collateral estoppel from relitigating it. We agree and reverse the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. Until May, 1988, August had been a partner with the defendants in a general partnership engaged in the practice of law in the firm of August and Moran. In May, 1988, August and Moran merged with another law partnership, Lazorick and Shuster, and became known as August, Moran, Lazorick and Shuster. All the assets and liabilities of August and Moran were transferred to the new partnership to establish a capital account for each partner in the new firm. August withdrew from the partnership of August, Moran, Lazorick and Shuster in March, 1991. In March, 1993, the successor law firm, Moran, Shuster, Carignan and Knierim, commenced an action against August to recoup from him the balance of his negative capital account. The trial court rendered judgment against August and ordered him to repay the negative balance of his capital account to the firm.

Approximately three weeks after that judgment was rendered, August commenced the present action for an accounting of his partnership interest in August and Moran as of May 31,1988. Specifically, August requested not only a formal accounting of his partnership interest in August and Moran prior to the merger in 1988, but also a determination of his partnership property rights in August and Moran for that same time period, pursuant to General Statutes § § 34-60 (d) and 34-62. In the defendants’ fifth special defense, they claim that August’s request for an accounting is barred by the doctrine of collateral estoppel because the issue of an accounting of August’s interest in August and Moran was fully litigated and necessarily determined in the prior litigation between the parties. The court granted the defendants’ motion for summary judgment on their fifth special defense, concluding that August was collaterally estopped from pursuing his action for an accounting of his interest in August and Moran. This appeal followed.

Because the defendants’ motion for summary judgment was based solely on the special defense of collateral estoppel, we address the propriety of the trial court’s grant of summary judgment on that ground only. “The standards governing . . . review of a trial court’s decision to grant a motion for summary judgment are well established. Practice Book § 384 [now § 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. . . . Miller v. United Technologies Corp., 233 Conn. 732, 744-45, 660 A.2d 810 (1995). In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . Id., 745. The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law; D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980); and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. Practice Book § 381 [now § 17-46]. . . . Suarez v. Dick-mont Plastics Corp., 229 Conn. 99, 105, 639 A.2d 507 (1994).” (Internal quotation marks omitted.) Ascuitto v. Farricielli, 244 Conn. 692, 696, 711 A.2d 708 (1998).

Before we address the trial court’s conclusion that August’s partnership interest in August and Moran was determined in the prior litigation, we will discuss the gravamen of August’s appeal, namely, the distinction between the calculation of a partner’s capital account and the accounting of a partner’s partnership interest. First, a partner’s “capital account” in a partnership is defined as an account that represents “his contribution or investment in the partnership.” Black’s Law Dictionary (6th Ed. 1990). A partnership interest, however, includes “all of a partner’s interests in the partnership, including the partner’s transferable interest and all management and other rights”; General Statutes § 34-301 (8); as well as his “share of the profits and losses . . . and the right to receive distributions of partnership assets”; General Statutes § 34-9 (11); which necessarily involves consideration of all assets, including cash and accounts receivable. Last, while “circumstances may require that a partnership accounting be limited in its scope, ordinarily the accounting should embrace a complete adjustment of all firm accounts and partnership affairs . . . .” (Emphasis added.) 68 C.J.S. 970, Partnership § 432 (b) (1950).

Here, August maintains that the trial court improperly considered the calculation of August’s capital account with August and Moran to have also determined the issue of an accounting of his partnership interest with the firm. He asserts that the value of a capital account and the value of a partnership interest are not the same, and that the issue of an accounting of a partnership interest is not necessarily subsumed within the calculation of a partner’s capital account. We agree.

The trial court stated in its decision granting summary judgment for the defendants that “Ronald Bucchi, a certified public accountant, testifying on behalf of August in the prior action, stated that he had, essentially, performed an accounting of the interest of August in August and Moran as of May, 1988,” and that while “[i]t is true that the prior action was not an action for an accounting ... it was an action in which the value of August’s capital account in August and Moran was fully litigated. It is inconceivable how the present action for an accounting from a firm that has not existed for almost ten years can have any purpose other than to reestablish the value of August’s capital account in August and Moran. August fully litigated that issue in the prior action. He is barred from relitigating it by the doctrine of collateral estoppel.”

We understand the trial court’s concern about this belated accounting action that was brought only after an adverse decision was rendered as to August’s negative capital account. We do not, however, agree with the trial court’s reasoning that because the issue of August’s capital account was fully litigated, the issue of an accounting of his interest in the partnership was also determined.

Specifically, “[c]ollateral estoppel, or issue preclusion, prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action. . . . For an issue to be subject to collateral estoppel, it must have been fully and fairly litigated in the first action. It also must have been actually decided and the decision must have been necessary to the judgment. . . . The doctrine of collateral estoppel is based on the public policy that a party should not be able to relitigate a matter which it already has had an opportunity to litigate.’ . . . Aetna Casualty & Surety Co. v. Jones, 220 Conn. 285, 296, 596 A.2d 414 (1991).” (Emphasis added; internal quotation marks omitted.) Warner v. Lancia, 46 Conn. App. 150, 160-61, 698 A.2d 938 (1997).

The trial court determined that the calculation of the value of the plaintiffs capital account is sufficient to demonstrate that the issue of the plaintiffs interest in August and Moran as of May, 1988, was actually litigated and necessarily determined in the prior litigation. It does not logically follow from a determination of August’s capital account, however, that an accounting of his partnership interest, of which the value of his capital account is but one component, was either fully litigated or necessarily determined in the prior action. In fact, our review of the record reveals that Bucci’s testimony, relied on and cited to by the trial court, concerned the calculation of August’s capital account and did not, as the trial court concluded, reflect that Bucci had “essentially” performed an accounting of August’s partnership interest in August and Moran as of May, 1988. For the trial court to have concluded properly that the issue of an accounting had already been determined, the record would have had to reveal other evidence or testimony regarding any of the many other factors that are involved in an accounting of a partnership interest. Our careful review of the record does not reveal such evidence or testimony.

We conclude that the issue of an accounting was neither actually litigated nor necessarily determined in the prior action. The trial court’s determination of August’s capital account in the prior proceeding addressed only some of the factors that an actual accounting of his partnership interest would involve. A complete adjustment of all firm accounts and partnership affairs was neither actually litigated nor necessarily determined in the prior action. Accordingly, collateral estoppel, or issue preclusion, does not apply here to bar August’s claim requesting an accounting of his partnership interest in August and Moran as of May, 1988.

The judgment is reversed and the case is remanded with direction to deny the defendants’ motion for summary judgment and for further proceedings.

In this opinion the other judges concurred.

       August also claims that the trial court’s fact-finding was clearly erroneous. In disposing of the summary judgment motion, the trial court properly did not find any facts. In discussing the legal claim of collateral estoppel, the trial court referred to facts that were found in the prior proceeding.

       The court determined that August, at the time of his withdrawal from the firm, had a negative capital account in the amount of $46,699.07, and rendered judgment in favor of Moran, Shuster, Carignan and Knierim in the amount of $44,299.07, the amount of August’s negative capital account less $2400 in compensation that he was entitled to from the firm. This decision was later affirmed by our Supreme Court in Moran, Shustei% Carignan & Knierim v. August, 232 Conn. 756, 657 A.2d 229 (1995).

       General Statutes § 34-60 provides in relevant part: “Any partner shall have the right to a formal account as to partnership affairs . . . (d) whenever . . . circumstances render it just and reasonable.”

       General Statutes § 34-62 provides: “The property rights of a partner are (1) his rights in specific partnership property, (2) his interest in the partnership, and (3) his right to participate in the management.”

       The defendants’ fifth special defense states: “Plaintiff is collaterally estopped from pursuing an action for an accounting.”

       According to Bucchi’s affidavit, a formal accounting consists of (1) cash balances, (2) fixed assets, (3) security deposits, (4) other assets, (5) notes payable, (6) accounts receivable, (7) accounts payable, (8) work in progress, (9) other accrued expenses and (10) capital accounts.

       Unlike claim preclusion, or res judicata, which bars the relitigation of claims that were either actually made or could have been made in the prior action, collateral estoppel, or issue preclusion, bars only those issues that were actually litigated in the prior action. Connecticut National Bank v. Rytman, 241 Conn. 24, 43-44, 694 A.2d 1246 (1997).


author: LAVERY, J.

text:
    BARBARA FRIEDMAN v. TOWN OF WESTPORT ET AL.
    (AC 17032)
    Lavery, Schaller and Sullivan, Js.
    Argued March 2
    officially released September 1, 1998

      Hale C. Sargent, for the appellant (plaintiff).

      Patricia E. Curtin, with whom, on the brief, was Andrew F. Fink, for the appellee (named defendant).

      Peter V. Gelderman, for the appellees (defendant Daniel Yamron et al.).
   Opinion

LAVERY, J.

The issues in this appeal by the plaintiff are whether the trial court incorrectly found abandonment of an easement created by deed and whether the trial court was incorrect in failing to find an easement by implication. We affirm the judgment of the trial court.

The following facts are not in dispute. In 1965, the plaintiff, Barbara Friedman, and her husband, Drew Friedman, acquired property known as 39 Imperial Avenue, Westport, together with a right-of-way to use a driveway twenty feet wide on property that was originally 41-43 Imperial Avenue, which is now part of the Foxfire Subdivision (subdivision) serving property of the individual defendants. The plaintiffs property at 39 Imperial Avenue has a driveway, other than the easement in dispute, that existed prior to the plaintiffs acquisition of the property. In 1978, the plaintiffs husband quitclaimed his interest in 39 Imperial Avenue to the plaintiff.

In 1988, the plaintiffs husband purchased 41 Imperial Avenue, which he subdivided into five lots in 1993. To accommodate her husband with respect to that subdivision, the plaintiff transferred a portion of her property, referred to as parcel B, to the partnership that was developing the subdivision. Her husband had conveyed 41 Imperial Avenue to the partnership after he obtained subdivision approval. Although the plaintiff had previously accessed the right-of-way by crossing parcel B, she did not reserve an easement across parcel B.

The road allowing ingress and egress from the subdivision to Imperial Avenue services the five lots in the subdivision, which are owned by the individual defendants. The subdivision map shows that the road mainly follows the express easement but does not follow the easement where the road crosses parcel B.

Under the subdivision regulations of the defendant town of Westport, if more than five lots were served, the subdivision road would require greater width. The subdivision application would not have been approved if the application showed the private road serving more than five lots. The subdivision application filed by the plaintiffs husband, using the designation “N/A,” stated that there were no relevant easements or rights-of-way affecting the proposed five lot subdivision. For the plaintiffs husband to obtain subdivision approval, the plaintiff had to agree to transfer parcel B, which bordered the easement. The transfer was required to improve the sight line from the subdivision road to Imperial Avenue. The defendant town finished the private road, after default by the developer, by putting in curbs and gutters with no curb cut for the plaintiffs property. The plaintiff brought this action to establish her rights over the private road, Foxfire Lane, and to enjoin the defendant town from interfering with her rights to use Foxfire Lane as a right-of-way to and from her property. In the alternative, the plaintiff claimed an easement by implication on Foxfire Lane.

The attorney trial referee to whom the case was referred found that an easement by grant had existed but had been abandoned by the plaintiff and that the plaintiff did not obtain an easement by implication over parcel B. The trial court rendered judgment in accordance with the attorney trial referee’s report from which this appeal followed.

I

The plaintiffs first claim is that the trial court improperly found abandonment of an easement created by deed. She argues that the lone piece of evidence in support of the conclusion of abandonment of the easement by grant—the quitclaim deed to parcel B to facilitate the approval of the subdivision—is overwhelmed by the great weight of evidence to the contrary.

“Whether there has been an abandonment is a question of intention to be determined from all the surrounding circumstances, and is a question of fact and not of law. The proof must clearly indicate that it was the intention of the owner of the dominant estate to abandon the easement.” Richardson v. Tumbridge, 111 Conn. 90, 93, 149 A. 241 (1930). “[Abandonment] implies a voluntary and intentional renunciation, but the intent may be inferred as a fact from the surrounding circumstances.” Pizzuto v. Newington, 174 Conn. 282, 285, 386 A.2d 238 (1978). “Although, before legal abandonment can be found, there must be proof of an intent to abandon; Glotzer v. Keyes, 125 Conn. 227, 233, 5 A.2d 1 (1939); that requirement can be met without resort to proof of specific intent. ‘Most frequently, where abandonment has been held established, there has been found present some affirmative act indicative of an intention to abandon . . . but nonuser, as of an easement, or other negative or passive conduct may be sufficient to signify the requisite intention and justify a conclusion of abandonment. The weight and effect of such conduct depends not only upon its duration but also upon its character and the accompanying circumstances.’ Id.” Carothers v. Capozziello, 215 Conn. 82, 130, 574 A.2d 1268 (1990).

“When the factual basis of a trial court’s decision is challenged, our function is to determine whether, in light of the pleadings and evidence in the whole record, these findings of fact are clearly erroneous. Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980); Fattibene v. Kealey, 12 Conn. App. 212, 215, 530 A.2d 206 (1987).” Schultz v. Barker, 15 Conn. App. 696, 700, 546 A.2d 324 (1988). “A finding is ‘clearly erroneous’ when, even though the finding is supported by some evidence, the reviewing court, on the basis of all the evidence, is left with the definite and firm conviction that a mistake has been committed by the fact finder.” Mastronardi v. Infante, 34 Conn. App. 584, 591, 642 A.2d 84, cert. denied, 231 Conn. 907, 648 A.2d 154 (1994).

We agree with the trial court that Foxfire Lane was approved to serve the five lots created by the subdivision and that if six lots were involved, the plaintiffs husband would have been required to conform to regulations requiring greater width in the construction of Foxfire Lane. The plaintiff not only did not object to the subdivision and development of the servient estate but facilitated such development by transferring parcel B without reserving her rights to access the easement so that Foxfire Lane could be constructed over and across parcel B thereby blocking her access to the easement. A review of the record, transcripts and exhibits shows that a five lot subdivision would have been approved only if 39 Imperial Avenue did not have an easement to use Foxfire Lane and that the plaintiff cooperated and worked with her husband, who was also her property manager, in obtaining the subdivision approval. We find that there is sufficient evidence in the record to sustain the finding of abandonment.

II

The plaintiffs second claim is that the trial court was incorrect in not finding that an easement by implication existed. The attorney trial referee found that since the plaintiff has another driveway on her property affording her access to Imperial Avenue, she failed to sustain her burden of proof on the claim of an easement by implication. The trial court agreed, citing Schultz v. Barker, supra, 15 Conn. App. 702. The trial court found that the fact that the plaintiff has another driveway providing access to Imperial Avenue other than the easement militates against a finding that the right-of-way is “reasonably necessary” for the enjoyment of the plaintiffs property and that the termination of the granted right-of-way by abandonment does not create an easement by implication.

As this court said in Schultz v. Barker, supra, 15 Conn. App. 700-701: “In this state, the law regarding easements by implication arising out of the severance of title of two adjoining or commonly owned properties is well settled. Where, during the unity of title, an apparently permanent and obvious servitude is imposed on one part of an estate in favor of another, which at the time of the severance is in use, and is reasonably necessary for the fair enjoyment of the other, then, upon a severance of such ownership . . . there arises by implication of law a . . . reservation of the right to continue such use. . . . [I]n so far as necessity is significant it is sufficient if the easement is highly convenient and beneficial for the enjoyment of the dominant estate. D’Amato v. Weiss, 141 Conn. 713, 717, 109 A.2d 586 (1954), quoting Rischall v. Bauchmann, 132 Conn. 637, 642-43, 46 A.2d 898 (1946), and cases cited therein; see also 2 G. Thompson, Commentaries on the Modern Law of Real Property (1980 Replacement) § 351, p. 292. Powers v. Grenier Construction, Inc., 10 Conn. App. 556, 559, 524 A.2d 667 (1987).” (Internal quotation marks omitted.)

In D’Amato v. Weiss, supra, 141 Conn. 717-18, our Supreme Court stated: “The reason that absolute necessity is not essential is because fundamentally such a grant by implication ‘depends on the intention of the parties as shown by the instrument and the situation with reference to the instrument, and it is not strictly the necessity for a right of way that creates it.’ ... [T]hat in the last analysis the creation of such an easement depends on the intention of the parties as shown by the deed and the situation with reference to it. In all cases of this character, the conception underlying the creation of an easement by implication is that the parties are presumed to have intended the grant of an easement.”

There is more than sufficient evidence in the record to sustain the trial court’s factual finding that “the fact that the plaintiff has another driveway providing access to Imperial Avenue does not necessitate a finding that the-right-of way over the claimed easement is ‘reasonably necessary’ for the enjoyment of the plaintiffs property.” The record contains evidence that the subdivision application could not have been approved if there were a right-of-way onto Foxfire Lane and that the plaintiff cooperated with her husband’s subdivision application by exchanging parcel B without reserving her easement rights. The finding of abandonment of a granted easement is not consistent with the creation of an implied easement. In addition to the fact that there was another driveway with access to Imperial Avenue, there was evidence that the plaintiff could relocate the other driveway to a different location on her property. We conclude that the trial court was warranted in concluding that an easement by implication had not been created.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendants in this action are the town of Westport, Daniel Yamron, Betsy Yamron, Angela A. Lapick, Mark L. Rosen, Sharon H. Rosen, Robert J. Corona, Dorothy Hamilton-Corona, Mark Heiman and Caren Greenstein.


author: HEALEY, J.

text:
    STATE OF CONNECTICUT v. GARRY KLINGER
    (AC 16220)
    O’Connell, C. J., and Schaller and Healey, Js.
    Argued March 30
    officially released September 1, 1998

      Alexander H. Schwartz, for the appellant (defendant).

      Carolyn K. Longstreth, assistant state’s attorney, with whom were David Newman, supervisory assistant state’s attorney, and, on the brief, Michael Dearington, state’s attorney, for the appellee (state).
   Opinion

HEALEY, J.

This appeal arises out of the trial court’s denial on May 13,1996, of the defendant’s pro se motion for a modification of a condition of his probation, i.e., restitution. On October 21, 1992, the defendant, pursuant to a plea bargain, pleaded nolo contendere to one count of larceny in the third degree in violation of General Statutes § 53a-124 and one count of engaging in the real estate business without a license in violation of General Statutes § 20-325. On the first count, the trial court sentenced the defendant to a term of five years with execution suspended and placed him on probation for five years. On the third count, the trial court sentenced the defendant to a term of six months and placed him on probation for one year. As a special condition of probation, the court ordered that the defendant make restitution in the amount of $4500 to Joane DiGioia, who was the victim of the larceny in the first count.

In his March 6, 1996 motion for modification, the defendant’s specific request for modification was: “Vacate restitution order.” He presented his motion pro se before the trial court on May 13, 1996. A proceeding ensued in which the court, the prosecutor, the defendant and the defendant’s probation officer participated. During his presentation to the trial court, the defendant said that the DiGioias, who were the victims of the larceny, had “lied” on their complaint about him to the Branford police and that he “did not owe [them] the sums that they claim on the information.” The defendant maintained that he now had documents that would show that. At the same time, he acknowledged that in 1992, he had pleaded nolo contendere in a plea bargain that imposed the restitution condition he moved to modify. In addition, he told the court that he had been unemployed for two months and was having problems making restitution payments, that he had had only periodic employment since being found guilty in 1992 and that “he [had] been making an effort to make restitution.” Further, he told the court that he was two months behind in making the restitution payments under the terms of his probation, that his car was mortgaged and that he had deeded his house to the bank in lieu of foreclosure. The defendant asked that if the court denied his motion for modification that it order a temporary stay of the restitution order because of his unemployment.

The prosecutor told the trial court that the transcript of the defendant’s October 21, 1992 disposition, pursuant to the plea bargain agreement, at which he was represented by a public defender, provided that the defendant make restitution to the two victims, the DiGi-oia family in the amount of $4500 and the Apuzzo family in the amount of $5000. The prosecutor also told the court that after the defendant was served with a warrant for violation of probation in 1995, while represented by a public defender, the defendant executed a promissory note on June 26, 1995, promising to make payments to the DiGioias. The trial court then indicated that it “was not about to revise the terms of the plea arrangement,” but that it had a question whether there should be a temporary stay. The prosecutor then informed the court of the large amounts that remained unpaid on both the DiGioia and Apuzzo balances, information that the state had obtained from the probation officer. That information disclosed that since October, 1992, the defendant had paid the DiGioias $517.50, leaving a balance of $3989.50 on the $4500 restitution order, and had paid the Apuzzos $602.50, leaving a balance of $4397.50 on the $5000 restitution order. The defendant did not question the correctness of this statement. The trial court, having learned that the probation officer was not present, passed the matter until he appeared, at which time the court learned that the officer had not charged the defendant with violating his probation. The trial court, upon learning that the defendant had not been accused of violation of probation, said that it would be premature for the trial court to suspend any payments. It also repeated its earlier position that it would not “change the terms of the sentence to which he had agreed” at the time he was sentenced in 1992 pursuant to the plea bargain. The motion for modification was denied and this appeal followed.

The defendant claims on appeal that the trial court (1) denied his due process rights when it failed to hold a “hearing” on his motion to modify the restitution provisions of his sentence and (2) abused its discretion “in denying his motion to modify his sentence.”

Before proceeding further, we must address the threshold issue of mootness. After examining the record and the briefs of the defendant and the state on appeal, it appeared to us that the issue of whether this appeal was moot was fairly suggested. Accordingly, we ordered that the parties file supplemental briefs on that issue. The parties have done so and they have also argued that issue before us. It is significant to point out that at the time we ordered the filing of briefs on this issue we were not informed of the fact that on October 20, 1997, the defendant had been arrested and charged with violation of probation arising out of his failure to make restitution.

The defendant’s position is that his appeal is not moot because he is still “in custody” under the 1992 probation order and, therefore, his appeal presents a viable and actual dispute between him and the state. He argues that the court’s control over him as a probationer continues because the period of probation is tolled once a warrant is issued for the arrest of a probationer under General Statutes § 53a-31 (b).

On the other hand, the state argues that the defendant’s claims concern the conduct of the hearing on the motion to modify and the trial court’s denial of relief under those specific circumstances. The state maintains that even if the defendant could prevail on any of his claims, no practical relief exists at this juncture. In so doing, the state argues that a court cannot retroactively modify the conditions of a sentence that no longer exist, that a hearing convened now for such a puipose would be useless and, therefore, the appeal is moot. Furthermore, the state contends that the trial court’s judgment does not cause any adverse consequences for the defendant that would save the appeal from dismissal because he was not convicted of a violation of probation, but rather, merely experienced the denial of his motion to modify his probationary conditions.

“ ‘Mootness implicates the subject matter jurisdiction of this court.’ Sadlowski v. Manchester, 206 Conn. 579, 583, 538 A.2d 1052 (1988).” Gagnon v. Planning Commission, 24 Conn. App. 413, 415, 588 A.2d 1385 (1991), aff'd, 222 Conn. 294, 608 A.2d 1181 (1992). “It is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow. Reynolds v. Vroom, 130 Conn. 512, 515, 36 A.2d 22 (1944); Phaneuf v. Commissioner of Motor Vehicles, 166 Conn. 449, 452, 352 A.2d 291 (1974); State v. Johnson, 11 Conn. App. 251, [256], 527 A.2d 250 (1987). . . . State v. Smith, 207 Conn. 152, 178, 540 A.2d 679 (1988).” (Internal quotation marks omitted.) State v. Deleon, 230 Conn. 351, 359, 645 A.2d 518 (1994); see Loisel v. Rowe, 233 Conn. 370, 378, 660 A.2d 323 (1995); Shays v. Local Grievance Committee, 197 Conn. 566, 571, 499 A.2d 1158 (1985); State v. Deptula, 34 Conn. App. 1, 4-5, 639 A.2d 1049 (1994).

It is apparent that as to the mootness argument, there is an actual controversy because the appeal is from the correctness of the trial court’s ruling on the defendant’s motion to modify. That controversy is given vitality, even though more than five years have passed since sentence was imposed on this defendant, because the issue of the warrant charging the defendant with violation of probation on October 20, 1997 (for which he was also arrested on that date) has “interrupt[ed] the period of the sentence . . . .” General Statutes § 53a-31 (b). In short, the issuance of the warrant tolled the term of his sentence, which, had the warrant not been so issued, would have terminated his probation on October 21, 1997. The defendant remained in legal custody and under the control of the department of correction. Payne v. Robinson, 207 Conn. 565, 567, 541 A.2d 504, cert. denied, 488 U.S. 898, 109 S. Ct. 242, 102 L. Ed. 2d 230 (1988).

As already noted, appellate courts do not decide moot questions “disconnected from the granting of actual relief or from the determination of which no practical relief can follow.” State v. Deleon, supra, 230 Conn. 359. One oft-cited case put it this way in finding mootness: “So, as no practical benefit could follow from the determination of the questions sought to be raised by the appeal, it is not incumbent upon us to decide them.” (Internal quotation marks omitted.) Reynolds v. Vroom, supra, 130 Com. 515; see Gagnon v. Planning Commission, 222 Conn. 294, 299, 608 A.2d 1181 (1992); Amalgamated Transit Union Local 1588 v. Laidlaw Transit, Inc., 33 Conn. App. 1, 5-6, 632 A.2d 713 (1993). This matter of practical relief or practical benefit that may be available to the defendant brings us to consider what legal remedy or redress, if any, may be available for him to satisfy this aspect of mootness. It is significant to remember that we do not have before us on this appeal the propriety and disposition of the October 20, 1997 charge of violation of probation, but rather we have the denial of a hearing on his motion for modification. We submit that there is practical relief that might be afforded the defendant if it was found that he was not accorded a hearing consonant with due process. Such meaningful relief could, for example, take the form of reducing the order of restitution to the amount that he has already paid.

This brings us to a consideration of the issue of whether the defendant was afforded a due process “hearing.” The defendant’s claim here is on both constitutional and statutory grounds.

The state argues that even if we determine that the appeal is not moot, the defendant’s claim that he was not given a “hearing” nevertheless presents an unpre-served claim that should not be reviewed. In urging its nonreviewability, the state argues that his statutory claim is not reviewable under the first, second and third prongs of State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), and that the hearing he was accorded in the trial court was fully adequate to satisfy the requirements of procedural due process.

In addressing the issue of reviewing the defendant’s claims of the court’s alleged failure to hold an eviden-tiary hearing on his motion, we note that he claims that he specifically relied on General Statutes § 53a-39 (a) as well as his explication of how his constitutional procedural due process rights were violated by the trial court. Section 53a-39 (a) is not the correct statute. Despite the fact that he did not preserve these claims, he has not advanced State v. Golding, supra, 213 Conn. 233, as a basis for requesting review of his claims. The state, however, has briefed the Golding issue at some length, and argues that both the statutory and constitutional due process branches of this claim fail under the second, third and fourth prongs of Golding. Review of the defendant’s statutory claim in which the defendant relies on § 53a-39 (a) also founders in the first instance on the ground that that statute is simply not applicable in this case. The defendant has failed to preserve either his constitutional or statutory claims properly, and we decline to review them.

The judgment is affirmed.

In this opinion the other judges concurred.

       The modification requested was titled, “Vacate restitution order.” The reason for the request was set out as follows: “Restitution is a severe hardship for [the] defendant and is a constant threat to his liberty. Furthermore, evidence to hand not previously available and the same NOT allowed to be presented to the Court, Ripley, J., at prior modification hearing. Would have established in fact no monies due DiGioia from defendant. Defendant requests [a] hearing.”

       On October 21, 1992, the defendant appeared before the trial court for disposition of the charges in four separate files. At that time, he pleaded nolo contendere to the first and third counts of a short, form information. The first count charged larceny in the third degree in violation of General Statutes § 53a-124 in the amount of $4500 from the victim, Joane DiGioia, and the third count charged him with engaging in the real estate business without a license in violation of General Statutes § 20-325. At the time of sentencing in 1992, the trial court remarked for the record that the defendant’s exposure on all the charges pending was twenty-one years of incarceration and $22,000 in fines. The court ordered that the execution of the sentences on the first and third counts be suspended and that the defendant be placed in the custody and control of the office of adult probation for the term of five years on the first count and one year on the third count. Four other charges were nolled.

       The trial court took a recess during the proceedings to await the arrival of the defendant’s probation officer.

       General Statutes § 53a-31 (b) provides in relevant part: “Issuance of a warrant or notice to appear for violation pursuant to section 53a-32, shall interrupt the period of the sentence as of the date of such issuance until a final determination as to the violation has been made by the court. . . .”

       The defendant conceded at oral argument that had the warrant of October 20, 1997, not been issued, his appeal would have been moot and he would have withdrawn this appeal.

      The definition of “relief’ includes “legal remedy or redress.” Webster’s Third New International Dictionary (1986).

       The fact that the defendant’s period of probation had only one more day to run on October 20, 1997, when he was arrested for violation of probation, does not prohibit under our analysis, the conclusion that there is still the opportunity for meaningful relief.

       In State v. Golding, supra, 213 Conn. 239-40, our Supreme Court held “that a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.”

       The statute the defendant relied on was General Statutes § 53a-39, titled, “Reduction of sentence or discharge of,” whereas he should have relied on General Statutes § 53a-30, titled, “Conditions of probation and conditional discharge.” Section 53a-30 (c) provides: “At any time during the period of probation or conditional discharge, after hearing and for good cause shown, the court may modify or enlarge the conditions, whether originally imposed by the court under this section or otherwise, and may extend the period, provided the original period with any extensions shall not exceed the periods authorized by section 53a-29. The court shall cause a copy of any such order to be delivered to the defendant and to the probation officer, if any.”

       Even if we were to review the defendant’s claims under our general supervisory powers, the result reached on this appeal would be the same. See Practice Book § 60-2; see State v. Sebastian, 41 Conn. App. 530, 537, 677 A.2d 437, cert. denied, 238 Conn. 906, 679 A.2d 365 (1996). We say this even were the analysis of the constitutional claim done by employing the familiar three part balancing test of Mathews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976).


author: LANDAU, J.

text:
    NANCY SHEARN v. EUGENE J. SHEARN
    (AC 17732)
    Lavery, Landau and Schaller, Js.
    Submitted on briefs June 5
    officially released September 1, 1998

      Martha E. H. Deegan filed a brief for the appellant (plaintiff).
   Opinion

LANDAU, J.

This is an appeal from the judgment of the trial court granting the defendant’s motion for modification of alimony and support. The plaintiff claims that the trial court improperly (1) modified the judgment in that the court was not presented with sufficient evidence of a substantial change in circumstances warranting review of the alimony and support provisions of the decree of dissolution, (2) concluded that the value of an in-kind contribution of shelter furnished by the defendant’s employer was not includable as income for the purposes of determining net income according to state child support guidelines and (3) exercised its discretion in a number of rulings.

The record discloses the following facts and procedural history. A decree of dissolution dissolving the parties’ marriage was rendered on October 2, 1991, in which the trial court awarded alimony to the plaintiff in the amount of $275 per week and child support in the amount of $325 per week for the two minor children of the marriage. In March, 1997, the defendant filed a motion to modify, claiming that there had been a substantial change in the parties’ circumstances, and the plaintiff filed a motion for contempt. A hearing was held on both motions on June 11, 1997. By way of a memorandum of decision, the trial court granted the motion to modify, but did not address the motion for contempt.

The trial court granted the motion to modify, finding that a substantial change of circumstances had occurred because the plaintiffs net disposable income had more than doubled and the defendant had sustained a back injury. The trial court ordered alimony to be reduced from $275 per week to one dollar per year and modified the child support from $325 per week to $138 per week.

We turn to the law that guides our analysis of the plaintiffs claims. “A trial court is in an advantageous position to assess the personal factors so significant in domestic relations cases, and its orders in such cases will not be reversed unless its findings have no reasonable basis in fact or it has abused its discretion, or unless, in the exercise of such discretion, it applies the wrong standard of law. See Borkowski v. Borkowski, 228 Conn. 729, 739-40, 638 A.2d 1060 (1994); see also Fahy v. Fahy, 227 Conn. 505, 517, 630 A.2d 1328 (1993); McGuinness v. McGuinness, 185 Conn. 7, 13, 440 A.2d 804 (1981). [W]e do not review the evidence to determine whether a conclusion different from the one reached could have been reached. . . . Meehan v. Meehan, 40 Conn. App. 107, 110, 669 A.2d 616, cert. denied, 236 Conn. 915, 673 A.2d 1142 (1996).

“Trial courts have broad discretion in deciding motions for modification. Noce v. Noce, 181 Conn. 145, 149, 434 A.2d 345 (1980). Modification of alimony, after the date of a dissolution judgment, is governed by General Statutes § 46b-86. . . . Borkowski v. Borkowski, supra, 228 Conn. 734; Denley v. Denley, 38 Conn. App. 349, 350-51, 661 A.2d 628 (1995). When ... the disputed issue is alimony, the applicable provision of the statute is § 46b-86 (a), which provides that a final order for alimony [or child support] may be modified by the trial court upon a showing of a substantial change in the circumstances of either party. . . . Borkowski v. Borkowski, supra, 734. The party seeking modification bears the burden of showing the existence of a substantial change in the circumstances. Jaser v. Jaser, 37 Conn. App. 194, 204, 655 A.2d 790 (1995). The change may be in the circumstances of either party. . . . McCann v. McCann, 191 Conn. 447, 450, 464 A.2d 825 (1983); see General Statutes § 46b-86. The date of the most recent prior proceeding in which an alimony order was entered is the appropriate date to use in determining whether a significant change in circumstances warrants a modification of an alimony award. See Avella v. Avella, 39 Conn. App. 669, 672, 666 A.2d 822 (1995); see also Borkowski v. Borkowski, supra, 737-38.

“In general the same sorts of [criteria] are relevant in deciding whether the decree may be modified as are relevant in making the initial award of alimony. . . . More specifically, these criteria, outlined in General Statutes § 46b-82, require the court to consider the needs and financial resources of each of the parties ... as well as such factors as the causes for the dissolution of the marriage and the age, health, station, occupation, employability and amount and sources of income of the parties. . . . Borkowski v. Borkowski, supra, 228 Conn. 736.

“When presented with a motion for modification, a court must first determine whether there has been a substantial change in the financial circumstances of one or both of the parties. Id., 737. Second, if the court finds a substantial change in circumstances, it may properly consider the motion and, on the basis of the § 46b-82 criteria, make an order for modification. Id. The court has the authority to issue a modification only if it conforms the order to the distinct and definite changes in the circumstances of the parties. Id., 738. The inquiry, then, is limited to a comparison between the current conditions and the last court order. Id.” (Internal quotation marks omitted.) Crowley v. Crowley, 46 Conn. App. 87, 90-92, 699 A.2d 1029 (1997).

I

Initially, the plaintiff argues that the trial court improperly modified the decree of dissolution in that the evidence presented did not permit the trial court to conclude that a substantial change of circumstances had occurred. The plaintiff states that the trial court found that the defendant “lost his job at Airborne Express, where he had been a driver, due to back injury. [That] court also found that the plaintiff . . . had more than doubled her income from the time of the dissolution of marriage. . . . The court stated that these two factors were enough to find that a substantial change of circumstances had occurred, warranting a review of the orders.” The plaintiff asserts that the findings were based on erroneous factual predicates. The plaintiffs arguments lack merit.

In its memorandum of decision, the trial court stated that “[t]he plaintiffs net disposable income has more than doubled. The defendant sustained a back injury. These facts are sufficient to find that a substantial change of circumstances has occurred, warranting a review of the current orders.” (Emphasis added.)

As to the first finding, the plaintiff points to that part of the defendant’s testimony in which he admits that he was lying to his employer on a daily basis and that such deceit was the reason for his dismissal. There is no indication in the memorandum of decision, however, that the factual predicate for the finding of a substantial change in circumstance was the defendant’s loss of his job rather than his back injury. The trial court merely found that “[t]he defendant sustained a back injury.” It did not find, as a basis for its conclusion that a substantial change of circumstances had occurred, that the plaintiff had lost his job because of a back injury. Her premise being faulty, the plaintiffs argument must fail.

The plaintiff cites Sanchione v. Sanchione, 173 Conn. 397, 407, 378 A.2d 522 (1977), in support of her additional argument that a modification of alimony is not warranted unless there has been a substantial change of circumstances not brought about by the defendant’s own fault. It does not follow that by recognizing that the defendant has a permanent back injury in finding a substantial change of circumstances, the trial court modified the alimony because he lost his job due to that back injury. As we have stated, the trial court did not find that the defendant’s loss of his job was the fact that warranted a modification based on a substantial change of circumstances. The trial court merely asserted that the defendant’s back injury created a substantial change of circumstances. The plaintiff does not dispute the existence of the defendant’s back injury and also does not claim that this injury was brought about by the defendant’s own fault.

As to that part of the finding concerning the plaintiffs doubling of her disposable income, she points out that the trial court ignored her testimony that she was leaving the Stamford area within two weeks because her home was in foreclosure proceedings, that she was moving to Delaware to be close to her parents and because of educational opportunities that would become available to the parties’ autistic son, and that as a result of the move, her job would terminate. The fact that the plaintiffs net disposable income had more than doubled is conceded. The plaintiff essentially argues that the trial court should also have found that she was about to be unemployed.

While that fact might be uncontroverted, the trial court is not bound to believe it. See Walshon v. Walshon, 42 Conn. App. 651, 654, 681 A.2d 376 (1996). “[T]he trial court, as trier of fact, determined who and what to believe and the weight to be accorded the evidence. The sifting and weighing of evidence is peculiarly the function of the trier. [N]othing in our law is more elementary than that the trier is the final judge of the credibility of witnesses and of the weight to be accorded to their testimony. . . . The trier is free to accept or reject, in whole or in part, the testimony offered by either party. . . . Cook v. Bieluch, 32 Conn. App. 537, 549-50, 629 A.2d 1175, cert. denied, 228 Conn. 910, 635 A.2d 1229 (1993).” (Internal quotation marks omitted.) Baretta v. T & T Structural, Inc., 42 Conn. App. 522, 527, 681 A.2d 359 (1996). We have constantly held to the rule that we will not judge the credibility of witnesses or substitute our judgment for that of the trial court. We fail to see a reason why we should do so here.

II

The plaintiff also argues that the trial court improperly ruled that the value of an in-kind contribution of an apartment by the defendant’s employer was not includable as income for the purposes of determining net income under the state child support guidelines.

Additional facts are helpful in our analysis. At the time of the hearing, the defendant was employed as the superintendent of a senior citizens complex and was required to live on the premises. The trial court concluded that “[s]ince the [Internal Revenue Service] does not treat such occupation of the apartment as income, this court will not assess the value of this housing as income.”

“The scope of our review of the trial court’s exercise of its broad discretion in domestic relations cases is limited to a determination of whether the court’s conclusions were correct on the law and reasonably reached on the evidence. Rostain v. Rostain, 214 Conn. 713, 716, 573 A.2d 710 (1990).” Bonelli v. Bonelli, 22 Conn. App. 248, 252, 576 A.2d 587 (1990).

According to the child support and arrearage guidelines issued pursuant to General Statutes § 46b-215b, “[g]ross income includes, but is not limited to ... in-kind compensation (any basic maintenance or special need such as food, shelter, or transportation provided on a recurrent basis in lieu of salary).” Regs., Conn. State Agencies § 46b-215a-l (11) (A) (xii).

Here, the regulation, which provides for the inclusion of in-kind contributions, is unambiguous. Our Supreme Court has held that neither the federal nor our state tax code definition of gross income is controlling. Jenkins v. Jenkins, 243 Conn. 584, 593, 704 A.2d 231 (1998). The Jenkins court held that “[b]ecause the [child support and arrearage] guidelines contain their own definition of gross income, it is that definition that is determinative.” Id. The trial court’s exclusion of the defendant’s in-kind compensation in the form of shelter in the computation of gross income because “the [Internal Revenue Service] does not treat such occupation of the apartment as income” is inconsistent with the clear legislative intent of the Connecticut child support guidelines. Regardless of the federal tax code, the trial court should have adhered to the guidelines and included the value of the defendant’s apartment in arriving at its calculation of gross income.

This ruling severely impacts the trial court’s judgment of modification. We understand that the trial court did not have the advantage of the Supreme Court’s opinion in Jenkins. We conclude, however, on the basis of the law today, that the trial court’s ruling must be set aside. The modification in this case affected alimony and child support. The symmetry and harmony of the modification are so disturbed that we reverse the judgment and order a new hearing.

The judgment is reversed and the case is remanded for a new hearing.

In this opinion the other judges concurred.

       Pursuant to Practice Book § 85-2, formerly § 4184B, this appeal was heard on the basis of plaintiff’s brief only because the defendant did not file a brief.

       The plaintiff claims that the trial court improperly (1) found that the defendant’s loss of employment was based on disability, (2) faded to find, as a material and relevant fact, that her home was in the process of being foreclosed, (3) failed to consider, as a material and relevant fact, that she would be unemployed within two weeks of the hearing, (4) failed to determine that her increase in earnings was mitigated or eliminated by the defendant’s failure to pay child support and alimony obligations, (5) failed to find that the defendant’s failure to meet his obligations was without justification so as to constitute contempt and (6) failed to consider the defendant’s earning capacity in determining his child support and alimony obligations.

       In that motion, the defendant’s request for modification concerned his child support obligations and visitation rights. In May, 1997, the defendant filed a revised motion to modify that added a request to modify or terminate his alimony obligation to the plaintiff.

         The plaintiff subsequently filed a motion to reargue, asking the court, inter alia, to rule on the motion for contempt. The trial court denied the motion to reargue in its entirely, and the plaintiff did not take any further steps with regard to the motion.

       The trial court also found an arrearage owed by the defendant l'or child support and alimony and, as a result, ordered him to pay $55 per week to the plaintiff.

       The defendant testified on cross-examination:
      “Q. I noticed that your financial affidavit does not reflect the apartment that you receive at no cost. Could you explain for us why you have not listed that as in-kind compensation?
      “A. Because I’m forced to live there as part of the job and it’s not where I would live if I had a choice.”

       General Statutes § 46b-215b (a) provides in relevant part: “[A]ny updated guidelines issued pursuant to section 46b-215a shall be considered in all determinations of child support amounts . . . within the state.” The guidelines are set forth at §§ 46b-215a-l through 46b-215a-5 of the Regulations of Connecticut State Agencies.

       Because we reverse the judgment and remand the case for a new hearing, we need not reach the plaintiffs challenges to the factual findings of the trial court as specified in footnote 2.


text:
    TERRY BUSHY ET AL. v. GEORGE E. FORSTER ET AL.
    (AC 12729)
    O’Connell, C. J., and Spear and Hennessy, Js.
    Submitted May 1
    officially released September 1, 1998

      Michael P. Del Sole, with whom, on the brief, was Anthony J. Pantuso III, for the appellants (defendants).

      Herbert Watstein, for the appellees (plaintiffs).
   Opinion

PER CURIAM.

This case comes to us on remand from our Supreme Court. We previously reversed the judgment of the trial court because in its charge to the jury, the trial court failed to relate the law to the factual issues in the case. Bushy v. Forster, 43 Conn. App. 578, 684 A.2d 739 (1996). Our Supreme Court reversed our decision; Bushy v. Forster, 243 Conn. 596, 706 A.2d 8 (1998); stating that “[t]his was a simple case, presented in six days, where the evidence was not complicated. The issues concerning the landlord’s negligence in the maintenance of the building’s roof drainage system and the tenant’s conduct leading up to her fall were straightforward. The trial court clearly spelled out the duty of the defendants to maintain the premises in a reasonably safe condition and the duty of the plaintiff to act in a reasonably safe manner to avoid injury.” Id., 599-600.

On remand, the Supreme Court has directed us to address the remaining issues raised by the plaintiff. One of the plaintiffs claims is based on an incorrect factual assertion, and we decline to review the eight remaining issues because of inadequate briefing. We affirm the judgment of the trial court.

The facts are set out in the Supreme Court’s opinion. “The plaintiff, Terry K. Bushy, filed a complaint, alleging negligence and nuisance by the defendants, George E. Forster and Judith A. Forster, for events relating to the plaintiff’s fall at the defendants’ apartment building where the plaintiff was a tenant. The plaintiff alleged that the defendants negligently allowed water from a roof downspout to drain onto the driveway surface, where the water froze and created a dangerous and hazardous condition, upon which she fell. The defendants denied that they were negligent and that they created any dangerous condition. They also filed a special defense that the plaintiffs own negligence caused her injuries.” Bushy v. Forster, supra, 243 Conn. 597.

The plaintiff purports to brief her remaining nine claims in two and one-half pages. Each claim is based on the trial court’s failure to instruct the jury as per a specific request of the plaintiff. In one of the claims, the plaintiff incorrectly asserts that the trial court failed to instruct the jury that contributory negligence is not a defense to the plaintiffs absolute nuisance count. The trial court did in fact instruct the jury that “[i]f you find that the plaintiff has established that an absolute private nuisance existed by a preponderance of the evidence you will not consider the concepts of contributory or comparative negligence of the plaintiff relative to the claim of absolute private nuisance.” This claim, therefore, is obviously without merit.

Of the plaintiffs remaining eight claims, four lack citation to any authority. Six of the claims are no more than bare assertions, four of which offer no analysis, and the remaining two offer only minimal and undeveloped analysis. Our Supreme Court has stated that “[w]e are not required to review issues that have been improperly presented to this court through an inadequate brief.” Connecticut National Bank v. Giacomi, 242 Conn. 17, 44-45, 699 A.2d 101 (1997). We have held that “[ajnalysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly.” State v. Henderson, 47 Conn. App. 542, 558, 706 A.2d 480, cert. denied, 244 Conn. 908, 713 A.2d 829 (1998). We conclude that the briefing here is inadequate and, therefore, decline to review the plaintiffs claims.

The judgment is affirmed.

       The plaintiff Robert Bushy’s claim for loss of consortium was not pursued at trial. We refer in this opinion to Terry K. Bushy as the plaintiff.

       There were originally eleven additional claims that were briefed in three and one-half pages. Two claims, to which the plaintiff devoted approximately one page of briefing, were withdrawn.

         The plaintiff claims that the trial court improperly failed to charge the jury (1) that, pursuant to General Statutes § 47a-7 (a) (2), a landlord has a statutory duty to keep demised premises fit and habitable; (2) that if falling snow somewhat increased the danger of the underlying defect and amounted to no more than an incidental and slight cause of the plaintiffs injuries, the jury must find that the preexisting ice and not the new precipitation was the proximate cause of the plaintiffs injuries; (3) that pursuant to General Statutes § 47a-16 (b), the landlord has a right and duty to inspect the premises; (4) that if the jury found that there was no written lease, the plaintiff was a month-to-month tenant, and the defendants were under a legal duty to repair the premises and were responsible for the injuries; (5) that the defendant had a continuing duty to repair the premises; (6) that “premises” is defined in General Statutes § 47a-l (g) as including appurtenances and grounds; (7) that momentary inattention on the part of the plaintiff does not constitute contributory negligence; and (8) that the plaintiff should be presumed to exercise due care.


author: HENNESSY, J.

text:
    ROBERT WESTBROOK v. SAVIN ROCK CONDOMINIUMS ASSOCIATION, INC.
    (AC 16982)
    Foü, Lavery and Hennessy, Js.

      Argued March 27
    officially released September 1, 1998

      Thomas P. Byrne, with whom, on the brief, was Eugene S. Melchionne, for the appellant-appellee (plaintiff).

      Susan I. Epstein, with whom was Steven R. Rolnick, for the appellee-appellant (defendant).
   Opinion

HENNESSY, J.

The plaintiff, Robert Westbrook, appeals from the judgment rendered by the judge trial referee in favor of the defendant, Savin Rock Condominiums Association, Inc. (association). The judge trial referee denied the defendant’s motion to strike, but found in favor of the defendant on the merits of the complaint. Under the plain error doctrine, we reverse the judgment of the judge trial referee and remand the case for further consideration of the defendant’s motion to strike the complaint.

The following facts are relevant to this appeal. The plaintiff is a unit owner in the Savin Rock Condominiums complex. The defendant is the association of unit owners in the complex. The plaintiff alleged, in his February 24, 1995 amended complaint, that the defendant violated the bylaws and the declaration of Savin Rock Condominiums by allowing unit owners to construct decks, patios and stone fences that encroached on the common area. He sought punitive damages and a mandatory injunction ordering the removal of these illegally erected structures.

On January 2, 1997, the defendant filed a motion to strike the amended complaint for failure to join the owners of sixty-nine of the condominium units as indispensable parties. The defendant argued that these parties were indispensable because the acts complained of by the plaintiff involve the association of owners and the individual owners of units with patio space. On February 7,1997, the judge trial referee issued a memorandum of decision in which he denied the defendant’s motion to strike, but found in favor of the defendant on the merits of the case.

On July 17,1997, the defendant moved for an articulation of that portion of the February 7, 1997 memorandum of decision concerning the motion to strike. In response, the judge trial referee stated: “1. The motion to strike referred to was originally heard and denied by the Honorable Leander Gray. 2. This court declined to overrule that decision and decided to abide by it as the law of the case.” On May 8,1995, Judge Gray denied the defendant’s motion to strike the amended complaint. The defendant did not argue in its cross appeal that the judge trial referee improperly denied its motion to strike.

We conclude that the trial court improperly failed to consider the jurisdictional ground that was set forth in the defendant’s motion to strike. The defendant’s motion was predicated on the assertion that unit owners who were not joined in the plaintiff’s complaint as defendants were indispensable parties to the action. According to the defendant, the trial court was without subject matter jurisdiction to hear the case. We agree that the defendant’s motion to strike implicated subject matter jurisdiction and, therefore, that issue should have been addressed by the judge trial referee.

“A judge is not bound to follow the decisions of another judge made at an earlier stage of the proceedings, and if the same point is again raised he has the same right to reconsider the question as if he had himself made the original decision. Santoro v. Kleinberger, 115 Conn. 631, 638, 163 A. 107 (1932). This principle has been frequently applied to an earlier ruling during the pleading stage of a case such as that upon the motion to strike before us. See State v. Sul, 146 Conn. 78, 83, 147 A.2d 686 (1958); Albrecht v. Rubinstein, 135 Conn. 243, 247, 63 A.2d 158 (1948); Dawson v. Orange, 78 Conn. 96, 129, 61 A. 101 (1905). . . . According to the generally accepted view, one judge may, in a proper case, vacate, modify, or depart from an interlocutory order or ruling of another judge in the same case, upon a question of law. 46 Am. Jur. 2d, Judges § 46; annot., 132 A.L.R. 14, 49.

“The law of the case is not written in stone but is a flexible principle of many facets adaptable to the exigencies of the different situations in which it may be invoked. See 18 Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction § 4478. In essence it expresses the practice of judges generally to refuse to reopen what has been decided and is not a limitation on their power. Messenger v. Anderson, 225 U.S. 436, 444, 32 S. Ct. 739, 56 L. Ed. 1152 (1912). New pleadings intended to raise again a question of law which has been already presented on the record and determined adversely to the pleader are not to be favored. . . . But a determination so made is not necessarily to be treated as an infallible guide to the court in dealing with all matters subsequently arising in the cause. Wiggin v. Federal Stock & Grain Co., 77 Conn. 507, 516, 59 A. 607 (1905). Where a matter has previously been ruled upon interlocutorily, the court in a subsequent proceeding in the case may treat that decision as the law of the case, if it is of the opinion that the issue was correctly decided, in the absence of some new or overriding circumstance. State v. Hoffler, 174 Conn. 452, 462-63, 389 A.2d 1257 (1978); State v. Mariano, 152 Conn. 85, [91], 203 A.2d 305 (1964), cert. denied, 380 U.S. 943, 85 S. Ct. 1025, 13 L. Ed. 2d 962 (1965).

“A judge should hesitate to change his own rulings in a case and should be even more reluctant to overrule those of another judge. IB Moore’s Federal Practice (2d Ed.) If0.404 [4], Judge shopping is not to be encouraged and a decent respect for the views of his brethren on the bench is commendable in a judge. . . . From the vantage point of an appellate court it would hardly be sensible to reverse a correct ruling by a second judge on the simplistic ground that it departed from the law of the case established by an earlier ruling. 18 Wright, Miller & Cooper, supra, § 4478; Parmelee Transportation Co. v. Keeshin, 292 F.2d 794, 797 (7th Cir.), cert. denied, 368 U.S. 944, 82 S. Ct. 376, 7 L. Ed. 2d 340 (1961).” (Citations omitted; internal quotation marks omitted.) Breen v. Phelps, 186 Conn. 86, 98-100, 439 A.2d 1066 (1982).

“Parties have been termed indispensable when their interest in the controversy is such that a final decree cannot be made without either affecting that interest or leaving the controversy in such condition that its final disposition may be inconsistent with equity and good conscience. GaUdio v. Gaudio, 23 Conn. App. 287, 305-306, 580 A.2d 1212, cert. denied, 217 Conn. 803, 584 A.2d 471 (1990); see Stamford Ridgeway Associates v. Board of Representatives, 214 Conn. 407, 439, 572 A.2d 951 (1990); Sturman v. Socha, 191 Conn. 1, 6, 463 A.2d 527 (1983); Standard Mattress Co. v. Hartford, 31 Conn. Sup. 279, 288, 329 A.2d 613 (1974), citing Shields v. Barrow, 58 U.S. (17 How.) 130, 139, 15 L. Ed. 158 (1855).” (Internal quotation marks omitted.) Hilton v. New Haven, 233 Conn. 701, 722, 661 A.2d 973 (1995). “Thus, our threshold consideration is whether the plaintiff complied with the notice requirement of Practice Book § 390 (d) [now § 17-55 (4)] so that the trial court had jurisdiction over this action.” Kohn v. Wilton, 42 Conn. App. 13, 16, 677 A.2d 985 (1996).

“Jurisdiction involves the power in a court to hear and determine the cause of action presented to it and its source is the constitutional and statutory provisions by which it is created. . . . Lack of subject matter jurisdiction may be raised at any time. . . . Whenever the absence of jurisdiction is brought to the notice of the court or tribunal, cognizance of it must be taken and the matter passed upon before it can move one further step in the cause; as any movement is necessarily the exercise of jurisdiction.” (Citation omitted; internal quotation marks omitted.) Blakeney v. Commissioner of Correction, 47 Conn. App. 568, 572, 706 A.2d 989, cert. denied, 244 Conn 913, 713 A.2d 830 (1998).

We conclude that because the defendant’s motion to strike for failure to join indispensable parties necessarily implicates the jurisdiction of the court, the judge trial referee was bound to consider the motion independently rather than relying on the law of the case.

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

In this opinion the other judges concurred.

       “In civil cases, [p]lain error is properly reserved for those extraordinary situations where the error is so obvious that the fairness and integrity of and public confidence in the judicial process would be impaired were we to fail to address an issue that was not raised or preserved at trial. Lynch v. Granby Holdings, Inc., 230 Conn. 95, [98] 644 A.2d 325 (1994), quoting Commissioner of Health Services v. Youth Challenge of Greater Hartford, Inc., 219 Conn. 657, 671, 594 A.2d 958 (1991). The Supreme Court in Lynch v. Granby Holdings, Inc., supra, 95, reversed this court when we considered plain error on the part of the trial court. The Supreme Court gave three reasons for reversal of our Lynch decision: (1) the failure to discuss the plain error ruling and articulate why plain error review was appropriate, (2) our addressing the issue sua sponte, thereby depriving the parties of an opportunity to brief the issue, and (3) that the issue at bar did not implicate interests of public welfare or fundamental justice between the parties. Id., 99.” (Internal quotation marks omitted.) Equity Mortgage, Inc. v. Niro, 44 Conn. App. 471, 473-74, 690 A.2d 407 (1997). As in Equity Mortgage, Inc., we conclude that “this appeal presents one of those extraordinary situations where the error is so obvious that the fairness and integrity of and public confidence in the judicial process would be impaired if we failed to address the issue, despite the fact that it was not raised or preserved at trial. Lynch v. Granby Holdings, Inc., supra, [98].” Equity Mortgage, Inc. v. Niro, supra, 475.

       Substantively, the judge trial referee concluded that contrary to the plaintiffs assertion, the construction of patios is permitted by both the General Statutes and the bylaws of the association.

       The portion of the memorandum of decision regarding the motion to strike stated: “The motion to strike filed before trial is denied.”

         “[T]he federal courts have held that it is not an abuse of discretion or a violation of the doctrine of the ‘law of the case’ for a trial judge to reconsider a motion for summary judgment that has previously been denied. . . . Mac’s Car City, Inc. v. American National Bank, 205 Conn. 255, [261], 532 A.2d 1302 (1987).” (Internal quotation marks omitted.) Fiaschetti v. Nash Engineering Co., 47 Conn. App. 443, 446, 706 A.2d 476, cert. denied, 244 Conn. 906, 714 A.2d 1 (1998).

       Practice Book § 17-55 provides in relevant part: “The judicial authority will not render declaratory judgments upon the complaint of any person ... (4) until all persons having an interest in the subject matter of the complaint are parties to the action or have reasonable notice thereof.”