text:
    Lloyd Glasson et al. v. Town of Portland
    (3199)
    Hull, Borden and Daly, Js.

      Argued December 11, 1985
    decision released February 11, 1986

      John W. Lemega, with whom was Joseph G. Lynch, for the appellant (named defendant).

      Joseph P. Bransfield, Jr., for the appellees (plaintiffs).
   Hull, J.

The defendant town of Portland appeals from the trial court’s judgment finding it liable to the plaintiffs, Lloyd and Kathleen Glasson, for damage to their property caused by water runoff and enjoining it permanently from discharging surface water onto their land by means of a drainage pipe. The town claims two errors: (1) that there was insufficient evidence to support the order of injunctive relief; and (2) even if there were sufficient evidence to justify the order of an injunction, it was entered without proper notice to the town and without providing it a chance to be heard on the scope of the injunction. We find that while the court’s decision to impose liability on the town was not clearly erroneous, its issuance of the injunction against the town without notice was in error.

The plaintiffs’ complaint was in five counts as follows: first count, a violation of General Statutes § 13a-138; second count, nuisance; third count, trespass; fourth count, nuisance, based on the town’s approval of the Scenic Farm subdivision which allegedly aggravated the water runoff condition; and fifth count, trespass, based upon the town’s approval of the subdivision. The court found for the plaintiffs on the first, second and fourth counts and impliedly for the town on the third and fifth counts.

The underlying facts as found by the court are not substantially in dispute. Since 1970, the plaintiffs have owned and lived in the town of Portland on premises abutting Old Marlborough Turnpike, a town road. The plaintiffs’ land is intersected by Reservoir Brook located in the center of a small valley. The plaintiffs’ home is on a slope east of the brook. The slope rises almost vertically in an easterly direction to the point where it is crossed by Old Marlborough Turnpike.

Before 1976, water drained from the turnpike by a ditch on the east side of the road. This ditch ran to a culvert running under the road which carried water to the slope on the westerly side of the road. The water flowed down from the culvert a distance of four to ten feet where it landed on the steep slope above the plaintiffs’ residence and thereafter flowed into Reservoir Brook.

In 1976, two catch basins were installed on the easterly side of the turnpike connected to each other by an eighteen inch concrete pipe. These basins were installed to allow water to run in a westerly direction into another catch basin. This basin in turn was connected to an existing eighteen inch metal culvert which crossed to the west side of the road. These drainage improvements were made with the town’s approval by a land developer to serve a residential subdivision which was to be built on the east side of the road opposite the slope above the plaintiffs’ land. The town also put in a new eighteen inch metal culvert to carry water from a third catch basin to the slope leading down to the plaintiffs’ land.

In April, 1976, the town planning and zoning commission approved the subdivision, Scenic Farms. Shortly after Scenic Farms was built, increasing amounts of water and sand ran down from the road to the brook. While town employees came and cleared such material from the plaintiffs’ swimming area, sand and silt continued to go down into the swimming area. There was also increasing slope erosion, a deepening of the path the water followed, undermining of a portion of the slope, tearing away of large patches of soil and vegetation and extensive damage of the root system of large trees.

In 1976 or 1977, the town dumped several truck loads of stone on the steep slope. Much of the stone went well onto the plaintiffs’ land. In 1979, water coming down the hill undermined and broke a pipe leading from the plaintiffs’ septic tank.

The court made further findings. The continued discharge of water was a matter of poor engineering. The resulting erosion undercut the abutment to the plaintiffs’ foot bridge, caused the bridge to break, destroyed the bank of soil above the plaintiffs’ home and caused soil cover and vegetation to slide down to the plaintiffs’ residence. The court also noted that such a steep slope of water puts pressure on the soil, washes it out from under the rocks, and creates a very unstable condition. The court determined that if the problem were allowed to persist, it could undermine Old Marlborough Turnpike, and that the town had made no effort to stabilize the slope.

On the basis of these findings, the court held for the plaintiffs on counts one, two and four and stated that the plaintiffs’ counsel should prepare an appropriate injunctive decree. The trial court thereafter signed a judgment enjoining the town from discharging surface water onto the plaintiffs’ land through a drainage pipe. The judgment made the injunction effective at midnight on June 30, 1984, and levied a $200 per day penalty against the town for noncompliance.

The town first claims that the evidence was insufficient to support the court’s decision. We will not tarry long in considering the town’s claim of insufficient evidence. Through this argument, the town is basically attempting to have this court retry the facts. This a function we do not perform. “This court will not reverse the decision of the trial court unless it is found to be ‘clearly erroneous in light of the evidence and the pleadings in the record as a whole.’ Damora v. Christ-Janer, 184 Conn. 109, 113, 441 A.2d 61 (1981); Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221, 435 A.2d 24 (1980); see Practice Book § 3060D. The factual conclusions of the trial court ‘must stand unless they are legally and logically inconsistent with the facts found.’ State v. Lasher, 190 Conn. 259, 267, 460 A.2d 970 (1983). Weighing the evidence is the function of the trier of fact and this court will not usurp that role. Gallo v. Gallo, 184 Conn. 36, 38, 440 A.2d 782 (1981).” Jones v. Litchfield, 1 Conn. App. 40, 42, 467 A.2d 936 (1983) , cert. denied, 192 Conn. 802, 470 A.2d 1218 (1984) .

The town also claims that the court, in finding it liable on the first count for violation of General Statutes § 13a-138, and on the second and fourth counts for committing common law nuisance, ignored the reasonable alternatives test applicable to both causes of action. In support of its statutory claim, the town argues that General Statutes § 13a-138 permits it to use drains in roads when no alternative is available. Concerning the nuisance counts, the town claims that the appropriate test considers “all the relevant circumstances, including such factors as the amount of harm caused, its foreseeability, the purpose or motive with which the act was done, and the consideration of whether the utility of the use of the land outweighed the gravity of the harm resulting.” (Citations omitted.) Peterson v. Oxford, 189 Conn. 740, 745, 459 A.2d 100 (1983), quoting Page Motor Co. v. Baker, 182 Conn. 484, 490, 494, 438 A.2d 739 (1980) (Bogdanski, J., dissenting).

Whichever test is applied, the court’s findings provide a more than sufficient basis for the imposition of liability on the town. When deciding the statutory action, the court specifically referred to Postemski v. Watrous, 151 Conn. 183, 195 A.2d 425 (1963), which the town cites for the proposition that the statute “permits drains to be buflt only when necessary, and if there is a reasonable alternative course open, that course must be taken.” (Citations omitted.) Id., 188. The town’s arguments also overlook the court’s conclusions that the continued discharge of water on the slope was not unavoidable but rather was a result of poor engineering and that there was no indication that any effort has been made to stabilize the slope. It also ignores the court’s statement that the remedy sought was a “cessation of the continued unreasonable intrusion” upon the plaintiffs’ premises. (Emphasis added.) These findings are ample to support the court’s decision to impose liability on the town.

The main thrust of the town’s argument concerns the manner in which the injunction was granted and its broad scope. As to the scope of the injunction, the town claims (1) that cessation of the flow of water onto the plaintiffs’ property was a physical impossibility, (2) that each potential solution suggested by the plaintiffs’ experts requires that the town effect alterations to the plaintiffs’ property, and (3) that the decree was devastatingly broad and financially onerous. What the town is saying, to use colloquial terms, is that to comply with such a broad injunction it would have to swallow the water involved.

The town also challenges the procedure used to obtain the injunction. After concluding that an injunction should issue, the court, in the judgment, instructed counsel for the plaintiffs “to prepare an appropriate injunctive decree.” No copy of the ensuing proposed decree prepared by the plaintiffs’ counsel, was sent to the town so that it could be heard on the scope and nature of the injunction.

The town’s challenge to the manner in which the injunction was issued is dispositive. “It is the settled rule of this jurisdiction, if indeed it may not be safely called an established principle of general jurisprudence, that no court will proceed to the adjudication of a matter involving conflicting rights and interests, until all persons directly concerned in the event have been actually or constructively notified of the pendency of the proceeding, and given reasonable opportunity to appear and be heard.” Ackerman v. Union & New Haven Trust Co., 91 Conn. 500, 508, 100 A. 22 (1917); City Trust Co. v. Bulkley, 151 Conn. 598, 601, 201 A.2d 196 (1964). Proper notice is necessary because “ ‘[d]ue process of law requires that the rights of no man shall be judicially determined without affording him a day in court and an opportunity to be heard.’ State ex rel. Kelman v. Schaffer, 161 Conn. 522, 526-27, 290 A.2d 327 [1971]; United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 383, 260 A.2d 596 [1969]; Benz v. Walker, 154 Conn. 74, 77, 221 A.2d 841 [1966]; see also Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S. Ct. 652, 94 L. Ed. 865 [1950].” Lechner v. Holmberg, 165 Conn. 152, 156, 328 A.2d 701 (1973). Accordingly, the town was entitled to notice of and an opportunity to be heard on the nature and scope of the injunction to be issued by the court. “[T]he failure of a court to comply with this requirement of notice is a serious breach of a fundamental requirement of due process of law.” Winick v. Winick, 153 Conn. 294, 299, 216 A.2d 185 (1965). Additionally, it is implicit in the court’s order that the parties be heard on the terms of the injunction itself.

There is error in part, the judgment is set aside as to the nature and scope of the injunction and the case is remanded for a hearing on the nature and scope of the injunction to be issued.

In this opinion the other judges concurred.

       Richard D. McGinley, developer of Scenic Farms, was made a third party defendant by the town of Portland. David B. Mylchreest,. the designer of the Scenic Farms water flow system, was made a third party defendant by McGinley. By stipulation of the parties, these third party actions were to be tried separately from the original action. Accordingly, McGinley and Mylchreest are not involved in this appeal.

       The parties agreed that the trial was to be limited to the issue of liability and to a determination of whether an injunction should issue. It was further agreed that if liability were found, a further hearing would be had as to damages.

       A hearing in damages has not yet been held. Ordinarily, when a judgment as to liability has been entered but damages have not been determined, there is no appealable final judgment. Pinnix v. LaMorte, 182 Conn. 342, 343, 438 A.2d 102 (1980). In this case, however, the injunction has determined the town’s rights in a manner that no further proceedings can affect. See Stroiney v. Crescent Lake Tax District, 197 Conn. 82, 85, 495 A.2d 1063 (1985). On the basis of the fact that there has been a finding of liability and an order of relief, we hold that an appealable final judgment does exist in this case.

       General Statutes § 13a-138 provides in pertinent part: “(a) Persons authorized to construct or to repair highways may make or clear any watercourse or place for draining off the water therefrom into or through any person’s land so far as necessary to drain off such water and, when it is necessary to make any drain upon or through any person’s land for the purpose named in this section, it shall be done in such way as to do the least damage to such land.
      “(b) Nothing in this section shall be so construed as to allow the drainage of water from such highways into, upon, through or under the yard of any dwelling house, or into or upon yards and enclosures used exclusively for the storage and sale of goods and merchandise.”

       In oral argument in this court, counsel for the plaintiffs eommendably took responsibility for this lack of notice to the defendant and admitted that “fair play” could justify remand to the trial court for a hearing on the injunction.

       It is also clear from a stipulation that the parties entered into before trial that such a hearing was envisioned. The agreement cited by the court stated that if liability were found, “a further hearing will be had as to damage.” It is obvious from reading the court’s order and the stipulation together that the intent of the parties was that such a hearing be held.


source: Caselaw Access Project

author: Bieluch, J.

license: Public Domain

text:
    Blanche Lampasona v. Planning and Zoning Commission of North Stonington
    (3810)
    Hull, Daly and Bieluch, Js.
    Argued November 13, 1985
    decision released February 11, 1986

      Ellen C. Brown, with whom, on the brief, was Sidney Axelrod, for the plaintiff.

      Robert C. Leuba, for the defendant.
   Bieluch, J.

This action for injunctive relief and a declaratory judgment has been reserved for the advice of this court. The following facts have been stipulated. The plaintiff, Blanche Lampasona, owns a parcel of land in the town of North Stonington in a rural residential zone. The parcel is nonconforming in that it contains fewer than 60,000 square feet, which constitutes the minimum permissible lot size. Lampasona presently has a mobile home upon her land. This replaced a prior mobile home. While the prior mobile home was on her lot, the town enacted a zoning regulation which prohibited an owner of a mobile home from making more than one replacement. Lampasona applied for permission to replace her mobile home for a second time with a mobile home of equal size, but permission was refused. She appealed to the town’s zoning board of appeals and, following a public hearing, her appeal was denied.

The plaintiff brought the present action to determine the constitutionality of these provisions of the North Stonington zoning regulations. The trial court, upon stipulation of the parties, has reserved that issue to this court. The precise question presented for our advice is “[w]hether Sections XI, I 3 e (2) (g) and (h) of the North Stonington Zoning Regulations are unconstitutional on their face and as applied to the plaintiffs property in that they constitute a taking of the plaintiff’s property without due process in violation of the provisions of the Constitution of Connecticut and the Constitution of the United States.”

Lampasona’s first argument is that by depriving her of the opportunity to replace her mobile home for a second time, the town is depriving her “of a vested property right in a nonconforming use without just compensation.” We agree.

“Where a nonconformity exists, it is a vested right which adheres to the land itself.” Petruzzi v. Zoning Board of Appeals, 176 Conn. 479, 483, 408 A.2d 243 (1979); see also Helbig v. Zoning Commission, 185 Conn. 294, 306, 440 A.2d 940 (1981). Any provision of a statute or ordinance abrogating such a right in an unreasonable manner, or in a manner not related to the public welfare, is invalid. Petruzzi v. Zoning Board of Appeals, supra, 484. In the present case, the mobile home use to which Lampasona has put her land is a valid nonconforming use. Since her nonconforming use has been validly established, she has a vested right under the protection of our federal and state constitutions to continue that use.

In DeFelice v. Zoning Board of Appeals, 130 Conn. 156, 32 A.2d 635 (1943), the court held, relative to the utilization of new equipment in a sand pit, that “the fact that improved and more efficient instrumentalities are utilized in pursuit of the use does not exclude it from the category of an ‘existing use,’ provided these are ordinarily and reasonably adapted to make that use available to the owner, and the original nature and purpose of the undertaking remain unchanged.” Id., 162. In the present case, Lampasona’s nonconforming use of the property will not change with the second replacement of her mobile home. Rather, it is the instrumentality through which she utilizes that use which will change. The use will remain unchanged in manner and scope. The replacement, therefore, is constitutionally protected.

The question reserved to us for advice was limited to the constitutionality of Sections XI, 13 e (2) (g) and (h) of the North Stonington zoning regulations. We supplement our advice with the observation that General Statutes § 8-2 provides that local zoning regulations “shall not prohibit the continuance of any nonconforming use.” That provision has been held to prohibit towns from requiring nonconforming uses to be terminated within a set period of time. James J. F. Loughlin Agency, Inc. v. West Hartford, 166 Conn. 305, 311, 348 A.2d 675 (1974) (town regulation that nonconforming advertising signs were to conform to new requirement within five years held invalid). The North Stonington regulations in issue seek the same objective, the termination of a valid nonconforming use after a “grace period” of one mobile home replacement. For that reason, they must fall.

We answer “Yes” to the stipulated question.

No costs will be taxed in this court in favor of either party.

In this opinion the other judges concurred.

       North Stonington Zoning Regulations § XI, I 3 e (2) (g). Any permit for a mobile home replacement granted under this provision expires ninety days after its issuance. Section XII 3 e (2) (h). That provision is also disputed here.

       In her brief, Lampasona has divided this question into three separate arguments. Claims one and two raise the due process issue reserved to this court. Claim three, and a portion of claim one, maintain that the regulations violate General Statutes § 8-2. Because the latter argument is not within the scope of the question reserved to us for advice, we decline to review it. Practice Book § 3134.

       In DeFelice v. Zoning Board of Appeals, 130 Conn. 156, 32 A.2d 635 (1943), the court concluded that the equipment at issue there produced a better, more valuable product than had been produced in the past, and, therefore, constituted a “substantial departure” from the prior use. Id., 160. Thus, the court concluded that the equipment was not permitted within the scope of the nonconforming use. Id., 164. That cannot be said in the present case. Lampasona wishes only to replace the existing structure with another mobile home. In fact, the provisions of North Stonington Zoning Regulations § XI, 13 e (2) (g) permits a first replacement mobile home only where it “is equal to in size or greater than the existing mobile home.” Thus, even for the purpose of the first replacement an extension of the nonconforming use is expressly permitted.


author: Borden, J.

text:
    Robert E. Dimeo v. Burns, Brooks & McNeil, Inc., et al.
    (3756)
    Hull, Borden and Daly, Js.
    Argued December 11, 1985
    decision released February 18, 1986

      Herbert Watstein, for the appellant (plaintiff).

      Joseph T. Sweeney, with whom, on the brief, was Nancy L. Thomas, for the appellees (defendants).
   Borden, J.

The plaintiff appeals from a judgment rendered by the trial court upon the jury’s verdict for the defendants. The issues involve the adequacy of the court’s instructions to the jury defining the duties owed by an insurance agent to her client regarding uninsured motorist insurance coverage. We find no error.

Certain facts were not in dispute: The plaintiff was a homeowner’s insurance customer of the named defendant, an insurance agency. The individual defendant, Carole A. Reynolds, was an insurance agent employed by the agency. In early July, 1980, the plaintiff met with Reynolds at the agency’s office to purchase automobile insurance. The result of that meeting was that the plaintiff increased his automobile liability insurance from $100,000 to $300,000, but left his uninsured motorist coverage at $20,000 per person. In December, 1980, the plaintiff was involved in a serious motor vehicle accident caused by the negligence of an uninsured motorist. The value of the plaintiff’s losses due to that accident clearly exceeded $20,000.

The plaintiff sued the defendants, claiming that they were negligent in one or more of the following ways: (1) they underinsured the plaintiff with respect to uninsured motorist coverage by failing to offer and obtain $300,000 of such coverage, which was the amount necessary for reasonably adequate coverage; (2) they failed to advise the plaintiff to obtain uninsured motorist coverage in that amount, and negligently provided him with only $20,000 of such coverage; and (3) they negligently informed him that his uninsured motorist coverage had been raised to $300,000. The central factual dispute at the trial revolved around the conversation between the plaintiff and Reynolds. The plaintiff testified that, after he agreed to the recommendation of Reynolds to increase his liability coverage from $100,000 to $300,000, she told him that he could leave his other coverages as they were, which he did. Reynolds testified that she explained uninsured motorist coverage to the plaintiff and recommended that he increase his coverage to $300,000, but that he rejected her recommendation and declined to do so. Both Reynolds and John H. Ellen, an insurance consultant, testified that $300,000 would have been a reasonably adequate amount of uninsured motorist coverage for the plaintiff. After the jury returned a verdict for the defendants, the court denied the plaintiff’s motion to set aside the verdict.

On appeal the plaintiff raises three claims of error pertaining to the court’s failure to charge the jury in accordance with his requests to charge on the defendants’ duties, as skilled professionals, to the plaintiff. A fourth claim is that the court gave a misleading and confusing instruction on the factors to be used in evaluating the defendants’ conduct. A fifth claim is that the court inadequately instructed the jury that the plaintiff need only prove one of his three claims of negligence in order to recover. Our comparison of the plaintiffs claims with the court’s instructions convinces us that the instructions come well within the “ ‘ “familiar principle” that jury instructions need not be exhaustive or perfect so long as they, considered in their entirety, are legally correct, adapted to the issues, sufficiently clear for the jury’s guidance and fairly present the case to the jury without injustice to either party.’ ” Patrick v. Burns, 5 Conn. App. 663, 671, 502 A.2d 432 (1985). We do not subject the charge to a “microscopic examination seeking technical flaws, [or] inexact, inadvertent or contradictory statements.” (Citations omitted.) Carfora v. Globe, Inc., 5 Conn. App. 526, 530, 500 A.2d 958 (1985).

Two of the plaintiffs three requests to charge were essentially as follows. (1) An insurance agent has special knowledge and skill, and has a duty to advise his client about the kinds and extent of the appropriate coverage. The client ordinarily looks to his agent and relies on the agent’s expertise. If the defendants held themselves out as professional insurance counselors, they were required to use that skill so as not to sell the plaintiff only $20,000 of uninsured motorist coverage. (2) The defendants had the duty to provide the plaintiff with complete and full information about the insurance they were selling him, to use reasonable care to give him this information so that he would understand it, and to inform him fully about the meaning and benefits of all coverages. We conclude that the court fully and properly covered the substance of the issues raised by these requests.

An insurance agent has the duty to exercise reasonable skill, care and diligence to see that his client has proper coverage. Todd v. Malafronte, 3 Conn. App. 16, 22, 484 A.2d 463 (1984). “ ‘Where he undertakes to procure a policy affording protection against a designated risk, the law imposes upon him an obligation to perform with reasonable care the duty he has assumed . . . . ’ ” (Emphasis in original.) Id.

The court instructed the jury that selling insurance is a specialized field with specialized knowledge and experience, and that an agent has the duties to advise the client about the kind and extent of desired coverage and to choose the appropriate insurance for the client. The court told the jury that the client ordinarily looks to his agent and relies on the agent’s expertise in placing his insurance problems in the agent’s hands. The court instructed the jury that, if the agent performs these duties negligently, he is liable therefor, just as other professionals are. The court also instructed that the standard of care is not that of ordinary negligence but the knowledge, skill and diligence of insurance agents in Connecticut in July, 1980, in similar cases. The court further instructed the jury, on the basis of the expert testimony produced in the case through Reynolds and Ellen, that an agent has the duty to explain uninsured motorist coverage, to explain the consequences of not having a sufficient amount of such coverage, to recommend the proper amount, and to attempt to procure that amount and offer it to the client. The court concluded this part of the charge by instructing the jury that the proper amount of coverage in this case would have been $300,000. These instructions were legally correct, adapted to the issues in the case, and clearly and fairly presented the case to the jury. Patrick v. Burns, supra.

The plaintiff’s third claim of error involves his request to charge that since the defendants were the plaintiff’s insurance agents, he was entitled to place his trust and confidence in them, and that they were obligated to use the utmost good faith, loyalty and honesty toward him. While such a charge might be required in an appropriate case, we see no occasion for it here. As we noted above, the trial court did charge the jury fully on the plaintiff’s right to rely on the defendants’ expertise, and on their duty to advise him properly about his insurance needs. There was no evidence in this case suggesting bad faith, disloyalty or dishonesty by the defendants toward the plaintiff. The court’s obligation is to frame its instructions so as to be adapted to the issues which are in the case. Patrick v. Burns, supra. It should refrain, as it properly did here, from addressing issues which are not in the case.

The plaintiffs fourth claim of error involving his requests to charge is that the court misled the jury by its instructions regarding the factors to be used in deciding whether the defendants breached their duties to the plaintiff. The plaintiff acknowledges that the court properly charged that the standard of care applicable to the defendants required that they explain uninsured motorist coverage, explain the consequences of having an insufficient amount of such coverage, recommend the proper amount, and offer that amount, which in this case would have been $300,000. The plaintiff quarrels, however, with the fact that the court, after reviewing the evidence, referred back to this instruction by summarizing it as follows: “If you believe that the defendant, Mrs. Reynolds, explained uninsured motorist coverage to Mr. Dimeo, and if you believe that she recommended that he buy [$300,000] of uninsured motorist coverage, then she was not negligent and you should find in this case for the defendant. On the other hand, if you believe that she did not explain uninsured motorist coverage to Mr. Dimeo, if you believe that she did not recommend the increase in limits of the uninsured motorist coverage to [$300,000], then she was negligent and you should find in this case the issues for the plaintiff.”

We cannot find that this summary misled the jury into disregarding the more complete legal statement given by the court earlier in its charge. As the evidence had developed in the case, both sides agreed that the applicable standard of care required that the defendants recommend and offer $300,000 of uninsured motorist coverage to the plaintiff. The plaintiffs testimony was that this amount of coverage was not recommended or offered. The testimony of Reynolds was that it was explained and recommended, and that the plaintiff declined it. The court’s charge did no more than point the jury to the central remaining factual issue in the case, reminding them in the process, however, that it was their recollection of the evidence, not the court’s, that should control. We do not believe that the jury is likely to have understood that the court, in using the words, “explained,” and “recommended,” meant for the jury to disregard the more complete explanation of these factors which the court had given to the jury earlier in its instructions.

The plaintiff’s final claim of error is that the court inadequately instructed the jury that the plaintiff was required to prove only one of his three specifications of negligence, rather than all three. This argument is without merit. On four separate occasions the trial court clearly instructed the jury that the plaintiff only needed to prove any one of the three allegations of negligence. The plaintiff’s claim seeks to subject the court’s charge to microscopic scrutiny. Carfora v. Globe, Inc., supra, 530.

There is no error.

In this opinion the other judges concurred.


author: Daly, J.

text:
    State of Connecticut v. Tyrone King
    (2724)
    Spallone, Daly and Bieluch, Js.

      Argued October 11, 1985
    decision released February 18, 1986

      G. Douglas Nash, assistant public defender, with whom, on the brief, was Joette Katz, public defender, for the appellant (defendant).

      Frederick W. Fawcett, assistant state’s attorney, with whom, on the brief, was Donald A. Browne, state’s attorney, for the appellee (state).
   Daly, J.

The defendant was convicted by a jury of a charge of robbery in the second degree in violation of General Statutes § 53a-135 (a) (2). Earlier in the trial, the trial court had rendered a judgment of acquittal of robbery in the first degree, in violation of General Statutes § 53a-134 (a) (2). On appeal, the defendant submits the following claims: (1) that the court denied him the right to notice of the crime charged by substituting the original first degree robbery count with a count of second degree robbery, which it considered a lesser included offense; (2) that the court improperly instructed the jury by allowing them to consider two prior misdemeanor convictions in assessing the defendant’s credibility; and (3) that he was denied the effective assistance of counsel with respect to the admission into evidence of the two prior misdemeanor convictions. We find that there is error on the first claim. Because this issue is dispositive of the case, we need not reach the other issues.

The facts are not in dispute. After having her hair done in a friend’s second floor apartment, the victim attempted to leave the budding. The first floor exit door was stuck, and she was advised by one of two black males standing by the door to use the exit upstairs at the other side of the building. She went to do this, and when she arrived at the other exit the same black male who had suggested the alternative exit reappeared. The victim became frightened and attempted to retreat, but the man grabbed her by the hand, showed her a black handgun and demanded her valuables. She turned over her cash and gold chains. Due to the commotion caused by the arrival of two boys on the scene, she eluded the robber and returned to her friend’s second floor apartment. As she arrived at the apartment door, the victim thought she had heard a rifle being fired at her from downstairs by an unidentified male. The police were then notified.

The victim identified the defendant’s photograph among an array at the Bridgeport police station and additionally made an in-court identification of the defendant. After the state rested its case, the defendant moved for a judgment of acquittal on the basis that the state failed to prove that the defendant was armed with a deadly weapon which was capable of discharging a shot. A judgment of acquittal was granted and the trial court, pursuant to Practice Book § 883, ordered the case to proceed with a lesser included offense, a robbery in the second degree in violation of General Statutes § 53a-135 (a) (2).

The defendant testified on his own behalf and denied that he had participated in the robbery or that he had been previously convicted of a “marijuana charge” and for “failure to appear.” It developed that both convictions were misdemeanors: illegal possession of a controlled substance in violation of General Statutes (Rev. to 1983) § 19-481 (c) and failure to appear in the second degree in violation of General Statutes § 53a-173. The trial court instructed the jury that they could consider the convictions with respect to the defendant’s credibility. The defendant was subsequently convicted of robbery in the second degree.

The defendant objected on the record to the continuation of the trial after the judgment of acquittal on the charge of robbery in the first degree. A further objection at the time the jury was charged on the elements of robbery in the second degree was unnecessary because the earlier objection sufficiently apprised the court of the defendant’s claim that robbery in the second degree, in violation of General Statutes § 53a-135 (a) (2), is not a lesser included offense of robbery in the first degree, in violation of General Statutes § 53a-134 (a) (2).

The defendant argues that he was compelled to defend against an offense of which he had no notice, because it was not an offense lesser to and included in first degree robbery with a deadly weapon. As required under the federal and state constitutions, the information should inform the defendant of the charge against him with sufficient precision to enable him to prepare his defense and to avoid prejudicial surprise. The information must be sufficiently definite to enable the defendant to plead his acquittal or conviction in bar of any future prosecution for the same offense. State v. Vincent, 194 Conn. 198, 205, 479 A.2d 237 (1984); State v. Carter, 189 Conn. 631, 646, 458 A.2d 379 (1983). It is a basic principle in criminal law that an accused is required to defend only against the charge alleged. State v. Belton, 190 Conn. 496, 501, 461 A.2d 973 (1983). “Under our practice, it is sufficient for the state to set out in the information the statutory name of the crime with which the defendant is charged, leaving to the defendant the burden of requesting a bill of particulars more precisely defining the manner in which the defendant committed the offense.” State v. Ruiz, 171 Conn. 264, 270, 368 A.2d 222 (1976).

The constitutional basis for instructing a jury on lesser offenses is as follows: where one or more offenses are lesser than and included in the crime charged in the information, notice of the crime charged includes notice of all lesser included offenses. State v. Castro, 196 Conn. 421, 429, 493 A.2d 223 (1985). After granting the defendant’s motion for judgment of acquittal on robbery in the first degree, under General Statutes § 53a-134 (a) (2), the trial court had the defendant presented on robbery in the second degree in violation of General Statutes § 53a-135 (a) (2), relying on Practice Book § 883.

The issue of lesser included offenses is addressed in State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980), which held in part that a jury instruction on a lesser included offense is justified only if “it is not possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser . . . .’’Id.; State v. McCarthy, 197 Conn. 247, 262, 496 A.2d 513 (1985); State v. Castro, supra, 427; see also State v. Fernandez, 5 Conn. App. 40, 44-45, 496 A.2d 533 (1985). In light of Whistnant, we must determine whether robbery in the second degree is a lesser included offense to robbery in the first degree in order to address the defendant’s claim of inadequate notice. To commit robbery in the first degree while being armed, the accused need not “(1) [be] aided by another person actually present; or (2) . . . [display or threaten the use of] what he represents by his words or conduct to be a deadly weapon or a dangerous instrument” as required for a conviction of robbery in the second degree. Robbery in the first degree can be committed without the perpetrator ever using or referring to a loaded gun that he, in fact, has in his pocket. State v. Anderson, 178 Conn. 287, 293-94, 422 A.2d 323 (1979). “He would be armed but never have displayed or threatened the use of a weapon as required in the crime of robbery in the second degree. And if no one was present aiding the accused, he would not be guilty of robbery in the second degree. Therefore, under the particular information in the present case, robbery in the second degree is not a lesser included crime.” Id., 294. The court committed error in substituting the charge of robbery in the second degree. The conviction on that charge, therefore, must fail.

We conclude that the defendant was deprived of a fair trial with regard to the first issue, and in light of this, we need not address the remaining issues.

There is error, the judgment is set aside and the case is remanded with direction to render judgment finding the defendant not guilty of robbery in the second degree and to order that he be discharged.

In this opinion the other judges concurred.

       General Statutes § 53a-135 (a) provides in pertinent part: “A person is guilty of robbery in the second degree when he commits robbery and ... (2) in the course of the commission of the crime or of immediate flight therefrom he or another participant in the crime displays or threatens the use of what he represents by his words or conduct to be a deadly weapon or a dangerous instrument.”

       General Statutes § 53a-134 (a) provides in pertinent part: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime ... (2) is armed with a deadly weapon . . . .”

       Practice Book § 883 provides in pertinent part: “Such judgment of acquittal shall not apply to any lesser included offense for which the evidence would reasonably permit a finding of guilty.”

       General Statutes (Rev. to 1983) § 19-481 (c) is now § 21a-279 (c).


text:
    Rutherford P. Lilley v. Genevieve G. Lilley
    (3748)
    Hull, Daly and Bieluch, Js.
    Argued November 14, 1985
    decision released February 18, 1986

      James Wu, with whom, on the brief, were John C. Bullock and Gary I. Cohen, for the appellant (plaintiff).

      Samuel V. Schoonmaker III, with whom was William T. Fitzmaurice, for the appellee (defendant).
   Bieluch, J.

This appeal raises the sole issue of whether the original decree dissolving the marriage of the parties is modifiable with respect to the terms of the alimony award granted to the defendant wife. We conclude that the trial court erred in finding the decree to be nonmodifiable.

The facts are not in dispute. The marriage of the parties was dissolved by order of the court on January 21, 1983. At the dissolution hearing, the parties stipulated that the defendant would receive $1600 per month as periodic alimony, payable until her death or remarriage. In the event of the plaintiffs death, the payments of periodic alimony were to continue from his estate until December 31,1997, unless the defendant died or remarried before that date.

The parties further stipulated that the plaintiff would execute an irrevocable amendment to a trust which he had created for his own benefit. Pursuant to the amendment, assets were segregated in a portion of the trust designated as the “Genevieve G. Lilley Reserve” in an amount which guaranteed the payment of the defendant’s monthly alimony. The trustee was specifically directed to pay $1600 per month to the defendant in accordance with the terms and limitations of the stipulation. The trustee was further directed that the amendment was not modifiable in any manner “which could adversely affect the security of the Genevieve G. Lilley Reserve unless Genevieve G. Lilley shall otherwise consent in writing.” The court specifically approved the stipulation of the parties and rendered judgment containing the provisions which are at issue in this case.

In May, 1984, the plaintiff moved for a modification of the alimony award on the ground that the defendant’s financial assets and income had increased to a remarkable degree because of a substantial and unforeseen change in circumstances. The trial court, while agreeing that such an improvement had taken place, concluded that the original decree was nonmodifiable regardless of the parties’ changes in circumstances. The court denied the motion for modification and, from that denial, the plaintiff appeals.

General Statutes § 46b-86 (a) provides that “[u]nless and to the extent that the decree precludes modification, any final order for the periodic payment of permanent alimony . . . may at any time thereafter be . . . modified by said court upon a showing of a substantial change in the circumstances of either party.” This statutory provision “suggests a legislative preference favoring the modifiability of orders for periodic alimony . . . [and requires that] the decree itself must preclude modification for this relief to be unavailable.” (Emphasis added.) Scoville v. Scoville, 179 Conn. 277, 279, 426 A.2d 271 (1979). Such preclusion of modification must be unambiguous. McGuinness v. McGuinness, 185 Conn. 7, 9, 440 A.2d 804 (1981); Scoville v. Scoville, supra, 280.

In the present case, the judgment of dissolution is silent about the modifiability of its order for periodic alimony. Faced with the statutory open door to modification in § 46b-86 (a), the court erred in searching for the parties’ intent and in holding “that the alimony order in question is not ambiguous and is also non-modifiable.” We may look only to the dissolution decree itself when determining whether its provision for periodic alimony is modifiable. In the absence of an express, unambiguous statement in the decree precluding modification, § 46b-86 (a) permits the modification of an order for periodic alimony “upon a showing of a substantial change in the circumstances of either party” as claimed here.

Our ruling by no means requires parties to a dissolution to use any given set of words to preclude modification. We shall not endorse or endow any single phrase for this purpose. Many words and phrases may express the same meaning. The decree must express distinctly and unambiguously that its order for periodic alimony is not modifiable for the statutory direction allowing change to be overcome.

There is error, the judgment is set aside and the case is remanded for further proceedings in accordance with this opinion.

In this opinion the other judges concurred.

       The defendant claims belatedly in her brief that “although characterized as periodic payments to provide the appellant with federal income tax benefits, the alimony award was actually a nonmodifiable lump sum payment payable over a period of years,” referring to Viglione v. Viglione, 171 Conn. 213, 368 A.2d 202 (1976). In the face of three specific designations of the alimony in the stipulation and the judgment as “periodic alimony,” to accept this claim would require us to ignore totally the parties’ clear language intended to obtain a desired important tax result. A review of the memorandum of decision and the record reveals that this claim was not considered by the trial court; nor has the defendant raised the issue in a statement of issues pursuant to Practice Book § 3012 (a). We, therefore, decline to consider the claim.

       It was also stipulated that the plaintiff would pay the wife the sum of $2500 as additional periodic alimony for the months of January, February, March and April, 1983.

       The trial court found that “[o]n the facts which are essentially not in dispute, as related to the court, it would appear that such a [substantial and unforeseen change in circumstances affecting the defendant whereby her financial position has vastly improved] has occurred, and that, while the change (selling of the property, appreciation in value of other assets) could very well have been within the contemplation of the parties, the extent of such change may very well not have been contemplated or foreseen.”
      In reviewing the record and briefs, it appears that the crux of the dispute is the wife’s sale of a portion of the former marital property for $950,000 ($350,000 cash and a note secured by a mortgage for $600,000) after having listed its total value on her financial affidavit at the time of dissolution as $750,000. The wife still resides on the remaining portion of the former marital property which she valued, at the time of the motion for modification, at $500,000.


text:
    Michael Ducey et al. v. Walsh Construction Company, Ltd.
    (3895)
    Hull, Daly and Bieluch, Js.

      Argued November 15, 1985
    decision released February 18, 1986

      PaulE. Pollock, with whom, on the brief, was Jeffrey A. Blueweiss, for the appellant (plaintiff).

      William A. Durkin III, for the appellee (defendant).
   Daly, J.

The plaintiff has appealed from a judgment granting the defendant’s motion to dismiss the plaintiff’s revised complaint for lack of jurisdiction over the person of the defendant. The plaintiff, Michael Ducey, claims on appeal that the trial court incorrectly dismissed the action after it found the named defendant to be a legal entity distinct from the real party defendant, over whom the plaintiff did not establish personal jurisdiction. We agree with the plaintiff that the trial court was in error.

The plaintiff allegedly was injured on September 23, 1980, while working on a construction site at the Greenwich Hospital. In his revised complaint, he claims that a wooden platform, erected by the general contractor and in its control, collapsed when the plaintiff stepped onto it, resulting in the injury. The plaintiff brought suit on September 16, 1982, against Walsh Construction Company, Ltd., a Delaware corporation, which the plaintiff then believed to have been the general contractor. Wolff and Munier, Inc., intervened thereafter as the plaintiffs employer to recover for the workers’ compensation benefits paid to the plaintiff. The defendant denied that it was the general contractor or that it maintained and controlled the site.

On October 13,1983, the defendant moved for summary judgment claiming that “Walsh Construction Company, A Division of Guy F. Atkinson Company,” was in fact the general contractor for the hospital construction project and not “Walsh Construction Company, Ltd.,” the party named in the plaintiffs’ complaints. Before the motion for summary judgment was heard, the plaintiff, on October 24,1983, requested permission “to amend his complaint to correct the description of the real party sued, Walsh Construction Company, from Walsh Construction Company, Ltd., to Walsh Construction Company, A Division of Guy F. Atkinson Company.” The defendant objected to the plaintiff’s request as a move to substitute a new party. At the argument on the defendant’s objection, with the agreement of the parties, the court, under Practice Book § 6, interpreted the objection as a motion to dismiss the complaint pursuant to Practice Book § 142, and thereafter dismissed the plaintiffs action, holding that the amendment sought “to substitute a new party with a distinct legal entity over whom the plaintiff must establish personal jurisdiction,” which had not been done. The plaintiff appealed from the ensuing judgment.

Both parties rely on World Fire & Marine Ins. Co. v. Alliance Sandblasting Co., 105 Conn. 640, 136 A. 681 (1927), in which the plaintiff sued the defendant, a New York corporation doing business in the city of Hartford. The plaintiff was permitted to amend its complaint by striking out the name of the defendant as it originally appeared and substituting “Julius Goodman doing business under the trade name of the Alliance Sandblasting Company.” The defendant claimed that this change constituted a substitution of parties. In rejecting this claim, the Supreme Court stated: “The plaintiff’s mistake was not as to the entity itself — not as to the party sued, but in describing what kind of an entity the defendant was; it sued the proper party, but in so doing misdescribed that party, not in respect to name, but solely as to status, as being an artificial instead of a personal entity. . . . The change made by the amendment did not affect the identity of the party sought to be described, but merely made correct the description of the real party sued; it did not substitute or bring in a new party. . . . ‘The effect given to such a misdescription usually depends upon the question whether it is interpreted as merely a misnomer or defect in description, or whether it is deemed a substitution or entire change of party; in the former case an amendment will be allowed, in the latter it will not be allowed.’ ” (Citations omitted.) Id., 643-44.

In another case, before judgment was rendered, but after a verdict was returned against “J. Johnson & Sons, Incorporated,” a Connecticut corporation, the writ was allowed to be amended by substituting a partnership “doing business as J. Johnson & Sons.” On appeal, the court found that the amendment merely corrected a misnomer of the defendants and did not substitute new parties in the action. Accordingly, the mistaken identity of the defendants was not fatal to the action even after the verdict upon trial. “[T]he trial court committed no error in permitting an amendment naming the real parties.” Motiejaitis v. Johnson, 117 Conn. 631, 638, 169 A. 606 (1933). In Motiejaitis, it was apparent from the complaint that the plaintiff intended to bring its action against those who owned, controlled and maintained the premises. The counsel who filed the answer for the defendant “could not escape the imputation of knowledge that the premises were occupied, not by a corporation known as J. Johnson & Sons, Incorporated, but by a copartnership doing business under the name of J. Johnson & Sons.” Id., 637.

In the present appeal, it is clear that the plaintiff intended to bring an action against the general contractor for the construction project at the Greenwich Hospital. The deposition of Donald E. Orr reveals the following: that he is vice-president and general counsel of “Walsh Construction Company, A Division of Guy F. Atkinson Company,” and vice-president, assistant secretary and assistant general counsel of “Walsh Construction Company, Ltd.”; that he received the plaintiffs complaint at Thorndike Circle in Darien and had it forwarded to the insurance office handling both corporate entities; that he “knew” the reference to “Walsh Construction Company, Ltd.” was incorrect, and that “Walsh Construction Company, Ltd.” had nothing to do with the construction project in question”; and that he knew that “Walsh Construction Company, A Division of Guy F. Atkinson Company” was under contract for the hospital construction.

In a similar Nevada case, three factors were considered in determining if a pleading amendment merely corrected a misnomer, rather than substituting a new party: (1) whether the proper party defendant had actual notice of the bringing of the action; (2) whether that defendant knew that it was the proper party defendant in the action; and (3) whether that defendant was not in any way misled to its prejudice. Servatius v. United Resort Hotels, 85 Nev. 371, 373, 455 P.2d 621 (1969). The court pointed out, inter alia, that the two corporations had the same resident agent, that they had overlapping directors, and that the corporations retained the same legal counsel. Accordingly, the court held that “the amendment did not bring in a new party defendant but merely correctly identified a party defendant already before the court.” Id., 373-74.

Here, the defendant, through its agent Orr, had actual notice of the action brought, knew who was the proper party defendant in the action, and did not appear to have been misled, to its prejudice, by the plaintiffs misidentification of the party defendant.

There is error, the judgment is set aside and the case is remanded for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       While the plaintiffs employer, Wolff and Munier, Inc., intervened, it is not involved in the appeal. We refer to Michael Ducey, therefore, as the “plaintiff.”

       The defendant’s objection to the plaintiff’s request for leave to amend his complaint was treated by the parties with the agreement of the court as a motion to dismiss under Practice Book § 142 pursuant to § 6 which provides: “The design of these rules being to facilitate business and advance justice, they will be interpreted liberally in any case where it shall be manifest that a strict adherence to them will work surprise or injustice.”


text:
    Greenman’s Trucking, Inc. v. Department of Revenue Services
    (3582)
    Hull, Daly and Bieluch, Js.

      Argued November 15, 1985
    decision released February 18, 1986

      Jackson T. King, Jr., with whom, on the brief, was Mary E. Holzworth, for the appellant (plaintiff).

      Jane D. Comerford, assistant attorney general, with whom were Frederick P. Clark, tax attorney, and, on the brief, Joseph I. Lieberman, attorney general, for the appellee (defendant).
   Daly, J.

The plaintiff has appealed from the dismissal by the court of an action brought pursuant to General Statutes § 12-422 appealing the defendant’s assessment of a deficiency against the plaintiff for unpaid sales taxes not collected on the sale of sand and gravel delivered to purchasers.

The appeal from the decision of the defendant was returnable to the Superior Court for the judicial district of New London. The defendant moved to dismiss the appeal for lack of subject matter jurisdiction for its failure to meet the venue requirements of § 12-422. The court denied the motion, but transferred the appeal to the judicial district of Hartford-New Britain. A second motion to dismiss the appeal based on the same jurisdictional ground as before was then denied by the trial court. The appeal thereafter went to hearing.

After trial on a stipulation of facts, the deficiency assessment was upheld and the appeal dismissed. The plaintiff then appealed to this court. No counterstatement of preliminary issues was filed by the defendant pursuant to Practice Book § 3012 (a) concerning the jurisdictional claim raised by its motions to dismiss.

The plaintiff, Greenman’s Trucking, Inc., is engaged in the business of, among other things, selling and transporting sand and gravel. The defendant assessed a deficiency of $46,195.09 against the plaintiff for the audit period of January 1,1975 through May 31,1976, for the collection of unpaid sales taxes on invoices for the sale of sand and gravel in which transportation charges were not itemized or separately stated. Sales taxes shown on the invoices, collected and paid, were computed on the undesignated portion of the invoices allocable, on the company’s internal records, to the charges for sand and gravel. This method of billing and collecting sales taxes was stipulated to the court by the parties. Further evidence was adduced at the trial establishing that quotations given to buyers stated the cost of the material being purchased separately from the delivery charges.

The trial court found for the defendant, holding that the plaintiff failed to prove that the transportation charges were separately stated and incurred after the sale of the sand and gravel. The plaintiff claims on appeal that the trial court incorrectly concluded, within the meaning of General Statutes § 12-407 (8) and (9), that the transportation charges were not “separately stated” and, therefore, were properly includable in the plaintiffs gross receipts, and that the plaintiff failed to establish that the transportation charges were incurred subsequent to the “sale” of the materials. We find no error.

Section 12-407 (8) provides in pertinent part: “ ‘Sales price’ means the total amount for which tangible personal property is sold . . . without any deduction on account of any of the following: . . . (c) the cost of transportation of the property prior to its purchase. . . . ‘Sales price’ does not include any of the following: . . . (d) transportation charges separately stated, if the transportation occurs after the purchase of the property is made .... ” (Emphasis added.) Section 12-407 (9) provides in pertinent part: “ ‘Gross receipts’ means the total amount of the sales price . . . without any deduction on account of any of the following: . . . (c)thecostof transportation of the property prior to its sale to the purchaser. . . . ‘Gross receipts’ do not include any of the following: . . . (d) transportation charges separately stated, if the transportation occurs after the sale of the property is made to the purchaser . . . .” (Emphasis added.) These two sections are interrelated, covering the two aspects of a sale necessary for the purpose of collecting sales taxes at the source and making payment to the defendant at the end of the transaction.

The court found that the transportation charges were not separately stated on the invoices given to the customers and, furthermore, that the plaintiff failed to sustain its burden of proving that the transportation occurred after the sale of the sand and gravel to the purchaser. The factual stipulation and exhibits attached, as well as the testimony given, amply support the conclusions of the court. The internal bookkeeping of accounts separating charges for materials and transportation do not control over the statutory definitions of taxable “sales price” and “gross receipts” for sales tax payments to the defendant.

There is no error.

In this opinion the other judges concurred.

       The transcript reveals that the parties agreed to treat this matter as a trial de novo under General Statutes § 12-422: “Such appeals shall be preferred cases, to be heard ... by the court or by a committee appointed by it. Said court may grant such relief as may be equitable . . . .”

       General Statutes § 12-422 provides in pertinent part: “Any taxpayer aggrieved because of any order, decision, determination or disallowance of the commissioner of revenue services under section 12-418, 12-421 or 12-425 may, within one month after service upon the taxpayer of notice of such order, decision, determination or disallowance, take an appeal therefrom to the superior court for the judicial district of Hartford-New Britain . . . .”

       Notwithstanding the defendant’s default in failing to preserve for our consideration its prior jurisdictional claim, it has briefed this counterissue. While we ordinarily will discuss subject matter jurisdiction even belatedly raised, suffice it to say that here General Statutes § 51-351, which became effective on July 1, 1978, permits the transfer of venue in administrative appeals in its provision that “[n]o cause shall fail on the ground that it has been made returnable to an improper location.” Sprague v. Commission on Human Rights & Opportunities, 3 Conn. App. 484, 486-87, 489 A.2d 1064 (1985).


author: Daly, J. Bieluch, J.,

text:
    Pauline D’Agostino Cuccuro v. City of West Haven George Spragg v. City of West Haven
    (3460)
    (3461)
    Spallone, Daly and Bieluch, Js.
    Argued October 8, 1985
    decision released February 18, 1986

      Keith B. Gallant, for the appellant (defendant in both cases).

      W. Paul Flynn, with whom, on the brief, was Charles L. Flynn, for the appellees (plaintiff in each case).
   Daly, J.

Both cases entail appeals from decisions of the compensation review division affirming actions by the workers’ compensation commissioner for the third district in denying the defendant employer’s motions to correct the findings by opening and modifying the judgments rendered on the basis of stipulations by the parties.

The plaintiff Pauline D. Cuccuro is the dependent widow of Anthony Cuccuro who, as a member of the West Haven police department, suffered a heart attack on September 21, 1971. He was retired on August 2, 1972, and died on January 23, 1977. A notice of claim for benefits under General Statutes § 7-433c was filed on May 18,1976, with the commissioner. A stipulation was filed on June 13,1979, and benefits were awarded on July 10,1979. On July 22,1980, the defendant filed a motion to correct the finding and open and modify the award.

The plaintiff George Spragg was a member of the West Haven police department and suffered a heart condition on January 2,1973. A notice of claim was submitted on June 14,1974. A stipulation was filed on September 14, 1978, pursuant to which benefits were awarded on October 20, 1978.

Both awards are challenged on the basis that the notices of claim were not filed within the statutory-period of one year as required by General Statutes §§ 7-433c and 31-294 and, as a result, the commissioner allegedly lacked jurisdiction to make any awards. From the denial of the defendant’s motions to correct the findings, the defendant city of West Haven appealed to the review division, which affirmed the actions of the commissioner. The defendant now appeals the decisions of the review division to this court.

The issue on appeal is whether the stipulations by the parties which recited that the notices of claim were filed more than a year after the injuries were suffered deprived the commissioner of jurisdiction to render the awards.

“The procedure for determining recovery under [General Statutes] § 7-433c is the same as that outlined in chapter 568 [the Workers’ Compensation Act], presumably because ‘the legislature saw fit to limit the “procedural avenue” for bringing claims under § 7-433c to that already existing under chapter 568 rather than require the duplication of the administrative machinery available . . . and further burden the courts and the municipalities . . . .’ Plainville v. Travelers Indemnity Co. [178 Conn. 664, 671-72, 425 A.2d 131 (1979)].” Bakelaar v. West Haven, 193 Conn. 59, 68, 475 A.2d 283 (1984). “Thus, § 7-433c directs claimants to the provisions of the Workers’ Compensation Act to determine how to proceed with a claim for benefits. Since § 31-294 states that ‘[n]o proceedings for compensation . . . shall be maintained unless a written notice of claim for compensation is given within one year from the date of the accident . . .’we conclude that compliance with this section is also a prerequisite to entitlement to benefits under § 7-433c.” Janco v. Fairfield, 39 Conn. Sup. 403, 406, 466 A.2d 1 (1983).

Giving notice of the claim and the time of filing are essential to maintaining a right of action against an employer. Where a statutory right of action sets a time within which that right must be carried out, a limitation on the action is created and must be strictly enforced. Walsh v. A. Waldron & Sons, 112 Conn. 579, 584, 153 A. 298 (1931). “Not being merely a procedural matter, the doctrine of waiver upon which the claimant relies, cannot avail, since jurisdiction cannot be waived, nor can it be conferred by agreement.” Id.

Neither the commissioner nor the review division found that a notice of claim was filed within the statutory period of one year. Section 31-294 of the General Statutes, however, contains an exception to the one year notice requirement: “[I]f within the applicable period an employee has been furnished, for the injury with respect to which compensation is claimed, with medical or surgical care as hereafter provided in this section, no want of such notice of claim shall be a bar to the maintenance of proceedings . . . .”

The defendant has not established that it did not furnish medical care to the plaintiffs. That alternative method of notice could have conferred jurisdiction on the commissioner to render the awards challenged here. When jurisdiction is possible, and the court has taken jurisdiction over a cause, every presumption supports the judgment which it renders. Connecticut Light & Power Co. v. Costle, 179 Conn. 415, 421, 426 A.2d 1324 (1980); Tuccio v. Zehrung, 164 Conn. 231, 232, 319 A.2d 406 (1973); Stone v. Hawkins, 56 Conn. 111, 115, 14 A. 297 (1888). This presumption is strengthened by the fact that the parties stipulated to the award and that none contested the jurisdiction of the commissioner. Applying the aforesaid to these appeals, the defendant has failed to sustain its burden of showing that there was error in the decision of the review division from which the appeals were taken. Schwarzschild v. Martin, 191 Conn. 316, 326, 464 A.2d 774 (1983).

On the basis of the exceptions to the statutory notice requirements, the commissioner had jurisdiction to render the awards to the plaintiffs.

There is no error.

In this opinion Spallone, J., concurred.

Bieluch, J.,

dissenting. I concur in the majority’s disclosure of the material facts. I also agree with its conclusion that the one year written notice required by General Statutes § 31-294, a condition precedent for benefits to be payable to the plaintiffs under General Statutes § 7-433c, is jurisdictional in nature and cannot be waived or conferred by stipulation. Walsh v. A. Waldron & Sons, 112 Conn. 579, 584, 153 A. 298 (1931). I except (1) to the majority’s unwarranted application of the medical care exception to the jurisdictional notice requirement, (2) to its reliance, without legal basis, upon the presumption of jurisdiction, (3) to its finding that the presumption of jurisdiction is supported by the parties’ stipulation to the awards, and (4) to its reliance upon the failure of the parties to the stipulations to originally contest the jurisdiction of the commissioner to approve the awards which they submitted.

There is no factual basis for finding compliance with § 31-294. Neither the facts stipulated by the parties for compensation in these cases, nor the findings and awards of the workers’ compensation commissioner, based upon the stipulations, meet the statutory requirements of § 31-294 or establish jurisdiction for the respective awards in each claim. In each case, a motion to open and vacate the award for lack of jurisdiction was denied by the commissioner without explanation. Notwithstanding this clear lack of jurisdiction in the records of these proceedings, the compensation review division first, and the majority now, have chosen to speculate that a statutory exception to the one year written notice requirement may apply in support of the commissioner’s jurisdiction. Such conjecture is unwarranted and improper. There is no indication in either record that an exception to the notice requirement of § 31-294 was ever considered by the commissioner. There is no foundation for any statutory exception in either case, and the lack of jurisdiction before the commissioner controls the appeals to the review division and this court.

The basis for the majority’s assumption of the commissioner’s jurisdiction is the indulgence of every presumption which favors the jurisdiction of the court. Tuccio v. Zehrung, 164 Conn. 231, 232, 319 A.2d 406 (1973). The authorities cited by the majority, however, are inapposite to the present case. In each of the cited cases, the record before the court supported such a presumption. Here, the only evidence suggestive of the commissioner’s jurisdiction in each case is the award itself, which cannot bootstrap its own jurisdiction. The only jurisdictional facts stipulated in both proceedings demonstrate unequivocally a lack of jurisdiction, namely, that the claims were untimely filed. These facts showed clearly that the commissioner, therefore, had no jurisdiction under § 31-294 to make these awards. For the presumption of jurisdiction to apply, jurisdiction must be within the possible ambit of the record, and not excluded from it. Stone v. Hawkins, 56 Conn. 111, 115, 14 A. 297 (1888). The record before us evidences no possible basis for jurisdiction. Consequently, the awards cannot be supported by an unwarranted presumption of jurisdiction.

The majority also holds that the defendant has failed to preclude an exception to the notice requirement of § 31-294 because “[t]he defendant has not established that it did not furnish medical care to the plaintiffs.” That ruling impermissibly shifts the burden to the defendant to disprove jurisdiction when no facts establishing jurisdiction can be found in the record before the commissioner to support the compensation awards. The majority would have the defendant go beyond the bounds of the record to disprove that which does not appear therein. The plaintiffs had the burden to establish jurisdiction, and the commissioner was bound to find legal jurisdiction for a proper award.

The notice requirement of § 31-294 of the Workers’ Compensation Act is a limitation upon the right to compensation benefits and must be strictly complied with. Walsh v. A. Waldron & Sons, supra.

For the foregoing reasons, I dissent.

       It should be noted that neither of the stipulations for compensation between the respective plaintiffs and the defendant approved by the commissioner was entered into or adopted by the defendant’s insurance carriers. Since they did not appear in the compensation proceedings, they are not parties to these appeals.


text:
    Sandra Pickman v. E. Steven Pickman
    (3136)
    (3454)
    Hull, Daly and Bieluch, Js.

      Argued November 12, 1985
    decision released February 18, 1986

      Patty J. Pittman, for the appellant (defendant).

      Arnold M. Potash, with whom, on the brief, was Hillard N. Einbinder, for the appellee (plaintiff)
   Daly, J.

These are consolidated appeals by the defendant husband arising from a dissolution of marriage. In Appeal 3136, the defendant is appealing from the clarified judgment of dissolution requiring him to be responsible for the college educational expenses of his two sons, one of whom had reached his majority at the time of the dissolution. In Appeal 3454, he challenges the denial of his motion to modify the dissolution order and the granting of attorney’s fees to the plaintiff.

By an “Agreement” executed at the dissolution hearing on September 21,1983, the defendant, E. Steven Pickman, agreed that “[h]e will pay the entire cost of the college education of each child issue of the marriage, DAVID PICKMAN and JOSEPH PICKMAN, and he shall be responsible for the cost of said college education including but not limited to Tuition, Room and Board, Books and Living Expenses as he is financially] able to.” This agreement was included in the judgment of September 21,1983, and reaffirmed and elaborated in the memorandum clarifying the judgment dated March 5,1984. The clarification of judgment indicated that the defendant consulted with his counsel before signing the agreement and that no objection was made to entering the agreement as part of the court’s judgment.

I

(3136)

In this appeal, the defendant claimed that the document signed was not a proper agreement within the purview of General Statutes § 46b-66 and, hence, the court was in error in incorporating it into the judgment. Section 46b-66 provides that where the parties have submitted an agreement concerning, inter alia, the financing of a child’s education, the court may look into the financial needs and resources of the parties as well as their ability to have custody of any minor child in order to determine whether the agreement is equitable. “If the court finds the agreement fair and equitable, it shall become part of the court file, and if the agreement is in writing, it shall be incorporated by reference into the order or decree of the court. . . . If the agreement is in writing and provides for the care, education, maintenance or support of a child beyond the age of eighteen, it may also be incorporated or otherwise made a part of any such order and shall be enforceable to the same extent as any other provision of such order or decree. . . . ” Id.

The defendant maintains that no consideration was offered for a valid agreement, that no substantial change of circumstances had taken place since the judgment to warrant its modification, and that undue influence was exerted upon him to sign the document, and the order to pay the educational expenses was inequitable.

At the trial, on cross-examination, the defendant testified that he would pay for the college education of his two sons. When asked by the plaintiff if he would attest to this in writing, the defendant agreed, after the court insisted that he first confer with his counsel before responding. The defendant stated that “[i]f it said as I’m financially able to, of course I’ll sign it.” Once again, the court insisted that the defendant confer with his counsel before confirming his response to the plaintiff’s request. The defendant did so, added at the end of the agreement in his own handwriting the words “as he is financially] able to,” and the agreement was signed. The state trial referee then accepted the agreement without objection and entered it as part of the judgment, stating: “I think [making the agreement] was a good solution to that problem because I am pretty much interested in the well being of the children.” The defendant responded: “I think we all are.”

“The word ‘agreement,’ in its popular and usual significance, means no more than concord; the union of two or more minds; or a concurrence of views and intention. . . . This concord or union of minds, may be lawful or unlawful; with consideration, or without; creating an obligation or no obligation. . . . The word ‘agreement,’ if there be nothing to limit its meaning, regards promises only, and not their consideration.” Sage v. Wilcox, 6 Conn. 81, 85-87 (1826). (Emphasis in original.)

The provisions of General Statutes § 46b-66 appear to have been satisfied by the court’s finding that the agreement was valid and properly consented to by both parties. The clarification of judgment reveals that the defendant carefully considered the written agreement and consulted with his counsel before both parties signed it, and that the defendant handwrote some words at the end of the agreement before agreeing to the final form. Finally, because the agreement provided for the educational expenses of the two sons beyond the age of eighteen, it was properly incorporated or made a part of the dissolution decree.

The defendant's second claim, that there had been no change of circumstances since the original judgment, need not be considered because the clarification did not modify or alter the terms of the original judgment regarding collegiate expenses.

The defendant next claims that the plaintiff’s counsel exercised undue influence in the execution of the agreement, thereby rendering an inequitable result. In addition, the defendant contends he was forced to undergo settlement discussions in the presence of the court, placing him in a strained and vulnerable position. Undue influence is the exercise of sufficient control over a person, whose acts are brought into question, in an attempt to destroy his free agency and constrain him to do something other than he would do under normal control. Reynolds v. Molitor, 184 Conn. 526, 528, 440 A.2d 192 (1981). “It is stated generally that there are four elements of undue influence: (1) a person who is subject to influence; (2) an opportunity to exert undue influence; (3) a disposition to exert undue influence; and (4) a result indicating undue influence.” 25 Am. Jur. 397-98, Duress and Undue Influence § 36. Relevant factors include “age and physical and mental condition of the one alleged to have been influenced, whether he had independent or disinterested advice in the transaction . . . consideration or lack or inadequacy thereof for any contract made, necessities and distress of the person alleged to have been influenced, his predisposition to make the transfer in question, the extent of the transfer in relation to his whole worth . . . failure to provide for all of his children in ease of a transfer to one of them, active solicitations and persuasions by the other party, and the relationship of the parties.” Id.

The defendant possesses a D.M.D. (Doctor of Medical Dentistry) degree, was accorded every opportunity to consult with his counsel prior to signing the agreement, and had already indicated in his financial affidavit of September 20,1983, a basic weekly expenditure of $200 for college tuition. The burden of proof where undue influence is alleged is on the party who asserts it. Stanton v. Grigley, 177 Conn. 558, 565, 418 A.2d 923 (1979); Holden & Daly, Connecticut Evidence § 65c. The defendant has failed to sustain his burden of proof on this claim.

II

(3454)

The defendant has also appealed from the denial of his motion to modify the college tuition order on the basis of a substantial change of circumstances of the parties since the signing of the agreement and from the granting to the plaintiff of $2000 in attorney’s fees to defend the appeal.

In seeking a modification, a party must “clearly and definitely” demonstrate a substantial change of circumstances that had not been contemplated at the time of the order. Kelepecz v. Kelepecz, 187 Conn. 537, 538, 447 A.2d 8 (1982); Wingerd v. Wingerd, 3 Conn. App. 261, 262, 487 A.2d 212 (1985). “A substantial change in circumstances demonstrates that continued operation of the original order would be unfair and improper.” Wingerd v. Wingerd, supra; Noce v. Noce, 181 Conn. 145, 149, 434 A.2d 345 (1980). As the trial court has broad discretion in domestic relations cases, our review of the exercise of such discretion is limited to whether the trial court correctly applied the law and could reasonably have concluded as it did. Holley v. Holley, 194 Conn. 25, 29, 478 A.2d 1000 (1984). “Trial courts have a distinct advantage over an appellate court in dealing with domestic relations, where all of the surrounding circumstances and the appearance and attitude of the parties are significant.” Wingerd v. Wingerd, supra, 263; Hardisty v. Hardisty, 183 Conn. 253, 260, 439 A.2d 307 (1981).

While there was a change of circumstances here, the trial court could, within its discretion, determine and did so find on July 23, 1984, that the change was not substantial enough to warrant a modification.

After denying the plaintiffs request for attorney’s fees, the trial court without another hearing awarded attorney’s fees to the plaintiff in the sum of $2000. The award of attorney’s fees and in what amount requires the exercise of judicial discretion. Friedlander v. Friedlander, 191 Conn. 81, 87, 463 A.2d 587 (1983). The trial court should not, however, have changed its decision without granting another hearing after its original denial of the motion. Because the plaintiff raised the issue of attorney’s fees, the defendant was entitled to cross-examine the plaintiff with respect to her financial status concerning her ability to pay for her own counsel. The defendant was denied the opportunity to inquire about an inheritance which the plaintiff may have received from her father who had died. An inheritance constitutes more than an “expectancy,” the “bare hope of succession to the property of another. . . . The moment of the decedent’s death determines the right of inheritance or testamentary succession.” Krause v. Krause, 174 Conn. 361, 365, 387 A.2d 548 (1978). Whether the grandfather had left funds to his grandsons particularly for their college education is a relevant avenue for cross-examination. “[Cjross-examination . . . is a substantial legal right which may not be abrogated or abridged at the discretion of the court to the prejudice of the cross-examining party.” State v. Cooper, 182 Conn. 207, 213, 438 A.2d 418 (1980); Holden & Daly, Connecticut Evidence § 10c. We find that there was harmful error for the trial court to have restricted the defendant’s right to cross-examination.

There is no error in Appeal 3136. There is error in part in Appeal 3454, the judgment with respect to the award of attorney’s fees is set aside and the case is remanded for further proceedings in accordance with this opinion.

In this opinion the other judges concurred.

       While the matter was not raised by the parties, there is a question whether the sons should be given a notice of the proceedings so that they might engage counsel if they desire to do so, to protect their interests.


text:
    Kostas Anastasiou et al. v. Zoning Commission of the Town of Old Lyme
    (3260)
    Hull, Daly and Bieluch, Js.
    Argued November 13, 1985
    decision released February 18, 1986

      John G. Ellsworth, with whom, on the brief, was Elting H. Smith, for the appellant (defendant).

      C. George Kanabis, with whom, on the brief, were Melvin Scott and Rebecca Golub, for the appellees (plaintiffs).
   Daly, J.

The defendant zoning commission of the town of Old Lyme has appealed from the judgment sustaining the plaintiffs’ appeal from the decision of the commission denying the plaintiffs’ application for a special exception to sell beer and wine on their premises.

The facts are not in dispute. The plaintiffs, Kostas Anastasiou and Dimitrious Anastasiou, are the owners of a restaurant, known as Old Lyme Pizza Palace, located at 264 Shore Road (Route 156) in the town of Old Lyme. The building that houses the restaurant is a nonconforming structure set back from the street about twenty feet instead of the thirty feet prescribed for the town’s C-10 commercial district. The restaurant is located less than 1500 feet from the Branmore Hotel (the Branmore), the holder of a hotel liquor permit for the sale of alcoholic beverages.

Under our Liquor Control Act, General Statutes § 30-1 through 30-113, permits for the sale of liquor are ordinarily issued for one year periods; General Statutes § 30-14 (a); upon payment of an annual fee; § 30-41. Under a statutory option, however, a permit-tee may fractionalize his annual permit “for a continuous period of not more than six consecutive calendar months, at two-thirds of said regular fees.” General Statutes § 30-41 (b). Under the authority of General Statutes § 30-39 (c), “[s]ix months’ or seasonal permits may be renewed, provided the renewal application and fee shall be filed at least twenty-one days before the reopening of the business, there is no change in the permittee, ownership or type of permit, and the permit-tee or backer did not receive a rebate of the permit fee with respect to the permit issued for the previous year.” Authorized by these provisions of the liquor laws, the Branmore renewed its hotel liquor permit annually for the warm summer season, April 22 through October 21.

Unable to obtain a regular or annual permit because of the proximity of their business to the Branmore under the restrictions of the local zoning ordinances, the plaintiffs applied to the defendant for the following: (1) a special exception to sell beer and wine at their premises throughout the year; (2) a variance of a restriction on the sale of liquor within 1500 feet of other premises selling liquor, for the period from October 22 to April 21 of each year; and (3) a special exception to sell beer and wine at their premises beyond the summer season for a six month period from October 22 to April 21 of each year. We are concerned in this appeal with the plaintiffs’ second request for a special exception made pursuant to article III, § H.2, of the local zoning laws.

On February 14, 1983, the defendant denied the plaintiffs’ second application for a special exception because the Branmore’s six month liquor permit is extendable by law at its option to a year without zoning action. Approval of the plaintiffs’ application, according to the defendant, would authorize another liquor establishment within 1500 feet of it. The application was also denied because the plaintiffs’ business was located in a nonconforming structure and use of the premises for the sale of liquor would be a violation of the zoning regulations. From the denial by the defendant, the plaintiffs’ appeal to the Superior Court was sustained. The defendant now appeals that decision and claims (1) that the provisions of article III, § H.5.3, of the zoning regulations, imposing a 1500 foot liquor outlet density restriction, prohibit the granting of a special exception under § H.2 to the plaintiffs for the sale of beer and wine at their restaurant between October 22 and April 21 of the following year, and (2) that since the nonconformity of the plaintiffs’ premises is structural, the plaintiffs should have been denied a special exception. We agree with the defendant and find error on the first claim. We will not, therefore, consider the defendant’s second claim.

The trial court found, contrary to the defendant’s ruling, that the Branmore would be unable to extend its liquor permit beyond October if the defendant approved the second request for the special exception. The court held that “[ujnder Section H.5.7 . . . the Branmore could only continue its original special exception if it operated under a permit of the ‘same class and type as that last issued.’ Any attempt by the Branmore to extend the period of liquor sales would require commission approval through a new special exception.” The court concluded that “[therefore, the plaintiffs’ second request [for a special exception] does not violate § H.5.3” and should have been granted.

The defendant argues that it would be unable to halt the year round sale of liquor by the Branmore if that establishment chose to extend its operations and acquire such a permit from the department of liquor control. Specifically, the defendant claims error in the trial court’s finding that the Branmore would have to obtain a special exception to extend its liquor permit beyond its current six month operation. It is undisputed that the hotel has a liquor permit which is good for one year. It has been operating for many years under a six month or seasonal limitation of its permit pursuant to General Statutes § 30-41 (b) which provides in pertinent part: “Any of said permits . . . may be granted for a continuous period of not more than six consecutive calendar months, at two-thirds of said regular fees . . . . ” Pursuant to General Statutes § 30-39 (c), the Branmore could renew its six month permit for an additional period of six months without having to seek a special exception from the defendant. If the Branmore now chose to apply to the department of liquor control to renew its permit beyond October 21 for an additional period of six months, and if that application were granted, then the Branmore and the plaintiffs’ restaurant both would be dispensing alcohol within 1500 feet of each other, a violation of article III, § H.5.3, of the zoning regulations, made possible by the trial court’s decision. Such a contradictory conclusion resulting from the court’s judgment cannot be supported. Even if the Branmore closed its doors indefinitely and thereby terminated its operation, it could reopen and have its liquor use of the building reinstated under article III, § H.5.7, of the zoning regulations without obtaining a special exception if the time constraints contained therein were met.

Courts cannot substitute their judgments for the wide and liberal discretion vested in local zoning authorities acting within the bounds of their legislative powers. Burnham v. Planning & Zoning Commission, 189 Conn. 261, 266, 455 A.2d 339 (1983). As long as an honest judgment has been reasonably and fairly exercised by a zoning commission after full hearing, courts should be cautious about disturbing the commission’s decision. Torsiello v. Zoning Board of Appeals, 3 Conn. App. 47, 49, 484 A.2d 483 (1984). Only where a local zoning board acts arbitrarily, illegally or in abuse of discretion may the courts grant relief on appeal. Burnham v. Planning & Zoning Commission, supra, 266; Cameo Parks Homes, Inc. v. Planning & Zoning Commission, 150 Conn. 672, 677, 192 A.2d 886 (1963). A reviewing court may only consider the reasons given by the zoning authority to determine whether the record and the application of the zoning regulations support those reasons. Goldberg v. Zoning Commission, 173 Conn. 23, 25-26, 376 A.2d 385 (1977); Torsiello v. Zoning Board of Appeals, supra, 50.

The record in this case supports the commission’s reasons for denying the plaintiffs’ application on the basis of the 1500 foot density violation of article III, § H.5.3, of the zoning regulations. It is therefore unnecessary to consider the second reason for the denial based on the nonconforming building violation. The commission’s action must be upheld if even one of the stated reasons is sufficient to support that action. Goldberg v. Zoning Commission, supra, 26; Torsiello v. Zoning Board of Appeals, supra. The trial court was in error in concluding that the defendant acted improperly.

There is error, the judgment is set aside and the case is remanded with direction to render judgment dismissing the appeal.

In this opinion the other judges concurred.

       The appeals of the denials by the defendant zoning commission of the plaintiffs’ requests for a special exception to sell beer and wine throughout the year, and for a variance of the 1500 foot restriction between October 22 and April 22 were dismissed by the trial court and are not involved in this appeal.

       Article III, § H.5.3, of the Old Lyme zoning regulations provides: “No establishment where alcoholic liquor is sold for consumption on the premises may be located within 1,500 feet of any other establishment where alcoholic beverages are sold for consumption on the premises.”

       Article III, § H.2, “Special Exception,” of the Old Lyme zoning regulations provides: “No premises shall be used to sell liquor unless and until approval for such sale shall be granted by the Zoning Commission of Old Lyme as a special exception and subject to such conditions as said Commission may establish, giving consideration to the effect of the proposed use on present and future residential, commercial, or waterfront uses in the vicinity, to objectionable noises, to manner and schedule of liquor service, to architectural features including signs, to the proposed-site planning and landscaping, to the provisions for off-street parking, to the conditions affecting traffic safety and to the conditions cited in the following paragraphs within this section.”

       Article III, § H.5.7, of the Old Lyme zoning regulations provides: “Termination of privilege of liquor use of premises: If any building or premises has ceased to be used for the sale of alcoholic liquor such premises shall not again be used for the sale of alcoholic liquor under any permits until a special exception has been obtained in accordance with Section H.2 unless within 365 days it shall again be occupied and actually used for a period of four consecutive weeks for the sale of alcoholic liquor under a permit issued by said Liquor Control Commission of the same class and type as that last issued by it with reference to said premises and permitted by these regulations.”

       General Statutes § 30-14 (a) provides in part: “A permit shall be a purely personal privilege, good for one year after issuance . . . .”