text:
    State of Connecticut v. Michael J. Marsala
    (6088)
    Spallone, O’Connell and Stoughton, Js.
    Argued May 24 —
    decision released August 29, 1989

      Burton M. Weinstein, with whom, on the brief, was Richard Emanuel, for the appellant (defendant).

      Richard F. Jacobson, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Gary W. Nicholson, assistant state’s attorney, for the appellee (state).
   Spallone, J.

The defendant appeals from a trial court decision, rendered on remand, that the evidence seized pursuant to a defective warrant was admissible under the good faith exception to the exclusionary rule. The defendant claims that the trial court erred in finding that the police officers executing the warrant had a good faith belief in its validity. We disagree.

In October, 1986, the Monroe police executed a search warrant and seized evidence of drug trafficking from the defendant’s home and person. The defendant was convicted, after a jury trial, of the crime of violating the state dependency producing drug law, General Statutes § 21a-278 (b). The defendant appealed from the judgment of conviction claiming that the trial court erred (1) in denying his motion to suppress evidence seized from his person, and (2) in denying his motion for judgment of acquittal on the grounds that the evidence was insufficient to establish his guilt beyond a reasonable doubt.

The pertinent facts and our determination of the issues raised are fully set forth in State v. Marsala, 15 Conn. App. 519, 545 A.2d 1151, cert. denied, 209 Conn. 816, 550 A.2d 1087 (1988). There, the defendant argued that the search that produced the evidence was conducted pursuant to an invalid warrant and that there was no legal justification for the warrantless search or arrest. The affidavit recited observations supplied by informants as the basis for probable cause to search the defendant’s home and person, but contained nothing from which the issuing judge could have determined the basis of the informants’ knowledge. Id., 522. We agreed with the defendant that the warrant was invalid, but remanded for a determination whether the good faith exception to the exclusionary rule adopted in State v. Brown, 14 Conn. App. 605, 548 A.2d 750 (1988), was applicable. State v. Marsala, supra, 526.

On remand, following an agreement between counsel not to offer any further evidence, the trial court specifically made factual findings regarding whether the case fit within any of the four situations that would except it from the application of the exclusionary rule. See United States v. Leon, 468 U.S. 897, 923, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984); State v. Brown, supra, 635. The trial court reached the following conclusions: (1) the magistrate issuing the warrant relied on an affidavit devoid of deliberate or reckless falsehoods; (2) the magistrate did not abandon his judicial role; (3) the police officers had a reasonable belief in the validity of the warrant; and (4) the affidavit and application described with particularity the places to be searched and the items to be seized. The defendant does not contest findings one, two or four. He challenges, however, the trial court’s finding “that the police officer did have reasonable belief that the warrant was valid in accordance with Brown v. Illinois, [422 U.S. 590, 610-11, 95 S. Ct. 2254, 45 L. Ed. 2d 416 (1975) (Powell, J., concurring)].” The sole question now before us is whether the trial court erred in concluding on remand that the officers executing the warrant acted in objectively determinable good faith and that, therefore, the “good faith” exception to the exclusionary rule applied.

As a threshold matter, we must determine the applicable standard of review of the trial court’s conclusion. Although there are no Connecticut cases that specifically set forth a standard to guide our review of a finding of “objective good faith,” there are numerous federal cases that address this issue. In United States v. Hendricks, 743 F.2d 653, 656 (9th Cir. 1984), cert. denied, 470 U.S. 1006, 105 S. Ct. 1362, 84 L. Ed. 2d 382 (1985), the court stated that a trial court’s determination of objective good faith under Leon is “subject to de novo review as a mixed question of fact and law.” See also United States v. Accardo, 749 F.2d 1477, 1481 (11th Cir.), cert. denied sub nom. Pinckard v. United States, 474 U.S. 949, 106 S. Ct. 314, 88 L. Ed. 2d 295 (1985) (“ultimate question of good faith vel non is a legal issue”); United States v. Sager, 743 F.2d 1261, 1265 (8th Cir. 1984), cert. denied, 469 U.S. 1217, 105 S. Ct. 1196, 84 L. Ed. 2d 341 (1985) (Leon standard akin to application of new legal criterion to same facts and therefore issue may be addressed for first time on appeal).

Because the fundamental fourth amendment right to be free from unreasonable searches and seizures is implicated, we approve the federal standard. Accordingly, we hold that the issue of the objective reasonableness of the executing officer’s reliance on a search warrant, even if the affidavit supporting the warrant was insufficient to establish probable cause, is a question of law reviewable de novo by this court. The underlying facts upon which that determination is based are, however, binding on appeal unless clearly erroneous. Practice Book § 4061; United States v. Maggitt, 778 F.2d 1029, 1035 (5th Cir. 1985).

We had previously determined that the executed affidavit and the application for the search warrant “lacked the indicia of probable cause.” State v. Marsala, supra, 526. We must now determine whether the absence of probable cause was so apparent that the officers “could not have harbored an objectively reasonable belief in the existence of probable cause.” United States v. Leon, supra, 926.

Leon establishes a standard against which the executing officer’s behavior is to be measured. The officer’s reliance on an affidavit for a warrant cannot be “entirely unreasonable.” United States v. Leon, supra, 923. Under Gates v. Illinois, 462 U.S. 213, 246, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983), it is sufficient if the executing officer has a “substantial basis” for concluding that there is a “fair probability” that the evidence would be found. The issue of reasonableness must be determined without regard to the fact that a magistrate approved the warrant application. Malley v. Briggs, 475 U.S. 335, 345-46, 106 S. Ct. 1092, 89 L. Ed. 2d 271 (1986).

In determining whether the executing officers in this case could have had a reasonable belief in the validity of the warrant, despite the fact that it was unsupported by probable cause, we look to the affidavit, the warrant and the specific facts and circumstances. United States v. Martin, 833 F.2d 752, 757 (8th Cir. 1987) (Lay, C. J., concurring). Our examination of the affidavit reveals that, facially, it contains facts sufficient to raise a close question regarding the existence of probable cause. We see nothing that renders the affidavit so obviously defective, however, that the executing officers should be charged with notice of invalidity. The drive-by surveillances made by the police officers corroborated the information contained in the warrant and its supporting documents. The warrant itself is not a “bare bones” document so devoid of facts that reliance on it by a well trained police officer must be deemed unreasonable. See United States v. Leon, supra, 915.

Accordingly, our review of the record and transcripts leads us to find that the executing officers had a reasonable belief in the validity of the warrant. The trial court so found and our independent review of the evidence in this case leads us to affirm the trial court’s finding, on remand, that the officers executed the warrant in objective good faith. The trial court did not err in finding that the evidence seized under the defective warrant was admissible pursuant to the good faith exception to the exclusionary rule.

There is no error.

In this opinion the other judges concurred.

       The affidavit supporting the application for a search and seizure warrant recited the following information. On September 5,1986, a named police officer from Trumbull notified the Monroe police that the defendant was involved in the sale of cocaine and other illegal drugs. A resident of Swendsen Drive had also reported to the Monroe police that he had observed what appeared to be drug trafficking at 154 Swendsen Drive, the defendant’s residence. This neighbor observed a bearded man come from the house to engage in transactions with the drivers of a series of vehicles parked at the curb in front of the house. This activity was described as “heavy,” with vehicles coming and going throughout the day and evening. The Monroe police made similar observations on “drive-by” surveillances over a period of time. A confidential informant spoke to the Monroe police on September 15, and September 29, 1986, about drug dealing at the defendant’s address and supplied a list of the registration numbers of vehicles frequently seen there in curbside transactions with the man from the house. Additional information was supplied on September 23,1986, to one of the affiant police officers by another officer whose own informant spoke of a man named Mike on Swendsen Drive who sold cocaine in front of his home. The following day, another resident of Swendsen Drive phoned this affiant officer to express concern about the activity at 154 Swendsen Drive.


source: Caselaw Access Project

author: Foti, J.

license: Public Domain

text:
    Myron Chomko v. Ira Patmon et al.
    (7267)
    Dupont, C. J., O’Connell and Foti, Js.

      Argued April 11 —
    decision released August 29, 1989

      Mary Ann Barile, with whom, on the brief, was Laurence V. Parnoff, for the appellant (plaintiff).

      Heidi G. Winslow, for the appellees (defendants).
   Foti, J.

The plaintiff appeals from the judgment rendered by the trial court for the defendants in this summary process action. The plaintiff claims that the trial court erred (1) in failing to find that a landlord and tenant relationship existed, (2) in failing to find a tenancy at sufferance, (3) in failing to draw an adverse inference because a defendant did not testify, and (4) in finding sufficient credible evidence to support the defendants’ claim. We find no error.

The facts giving rise to this claim are as follows. On March 1, 1982, the parties executed a “Contract for Sale” providing for the sale of the plaintiff’s condominium to the defendants. On the same day, the defendants executed two promissory notes. One note was in the amount of $24,959.10 and required monthly payments of $210.61. The other note was in the amount of $17,040.90, of which $5000 was paid as a deposit when the contract was executed. Interest on this second note was to be paid in monthly installments and its outstanding principal was due in full on March 1, 1988. Under the terms of the agreement, the defendants took immediate possession of the condominium and were responsible for payment of all real estate taxes, utility charges, municipal assessments, fire and liability insurance premiums, as well as all common charges assessed by the condominium association. The plaintiff promised that he would not further encumber the property and that he would transfer the warranty deed to the defendants when the notes were paid in full.

Shortly after the execution of the contract, the defendants fell behind in their payments and the plaintiff attempted to regain possession of the premises. The plaintiff served the defendants with a notice to quit possession on June 18,1987. This notice claimed that the reason for eviction was “non-payment” and “violation of occupancy agreement.” The plaintiff followed this notice with a summary process complaint alleging breach of a sales agreement for failure to pay the principal and interest on the promissory notes as well as the defendants’ failure to uphold their other obligations under their sale agreement. The original complaint was revised four times. In the third and fourth revisions the plaintiff claimed, for the first time, that the defendants had breached an oral rental agreement. The trial court rendered judgment for the defendants finding that the plaintiff failed to establish that a landlord and tenant relationship existed between the parties.

The plaintiff’s first claim is that the trial court’s finding that no landlord and tenant relationship existed between the parties was error. We disagree.

“It is a basic rule of pleading that the ‘ “ ‘allegations of a complaint provide the measure of recovery.’ . . .” ’ ” New Haven v. Mason, 17 Conn. App. 92, 96, 550 A.2d 18 (1988). The plaintiff in this action has instituted a summary process proceeding. The sole purpose of such an action is to permit a landlord to recover possession of his premises upon the termination of a lease. Bridgeport v. Barbour-Daniel Electronics, Inc., 16 Conn. App. 574, 581, 548 A.2d 744 (1988) , cert. denied, 209 Conn. 826, 552 A.2d 432 (1989) . Because this proceeding was brought before the court by way of a summary process complaint, it was necessary for the trial court first to determine whether a landlord and tenant relationship existed.

We agree with the trial court’s determination that no such relationship existed. A landlord and tenant relationship “will never be implied where the acts and conduct of the parties are inconsistent with its existence.” 49 Am. Jur. 2d, Landlord and Tenant § 11. Our review of the record leads us to conclude that the acts and conduct of the parties to this action indicated that their relationship was one of seller-mortgagee and buyer-mortgagor under the contract they executed on March 1,1982. The plaintiff’s initial complaint and first revision relied on the contract for sale as the basis of the parties’ relationship. Even though the third and fourth revisions of the complaint alleged that there was a later oral rental agreement between the parties, it was within the discretion of the trial court to find that such an agreement never existed. “[Although the testimony might have supported a different finding, the trial court was not bound to accept as persuasive even testimony that was not directly contradicted. Johnson v. Healy, 179 Conn. 97, 103, 405 A.2d 54 (1978).” Vaiuso v. Vaiuso, 2 Conn. App. 141, 146, 477 A.2d 678, cert. denied, 194 Conn. 807, 482 A.2d 712 (1984). Further, statements made in a superseded complaint may be considered by the trier of the fact as evidential admissions. Dreier v. Upjohn Co., 196 Conn. 242, 247-50, 492 A.2d 164 (1985). We conclude that the court was entitled to consider the plaintiffs original allegations and we agree with its conclusion that the defendants were occupying the premises under a sales agreement. Cf. Yarbrough v. Demirjian, 17 Conn. App. 1, 3, 549 A.2d 283 (1988).

The plaintiffs second claim is that the trial court erred in failing to find that the defendants were tenants at sufferance. We disagree. In asserting this claim, the plaintiff has misconstrued the meaning and application of this term. A tenant at sufferance is a tenant who holds over at the expiration of a lease without the consent of the landlord. See Welk v. Bidwell, 136 Conn. 603, 608-609, 73 A.2d 295 (1950); see also, R. Burke, Connecticut Real Property Law § 91 (b). Only if the defendants had first been tenants, could they subsequently become tenants at sufferance.

To support his argument, the plaintiff relies on General Statutes § 47a-23 which provides, in part, that a tenancy at sufferance will be applied to rental agreements or leases “where one originally had the right or privilege to occupy such premises but such right or privilege has terminated . . . .” The plaintiff seems to have overlooked, however, General Statutes § 47a-2 which provides that § 47a-23 does not apply to “occupancy under a contract of sale of a dwelling unit or the property of which such unit is a part, if the occupant is a purchaser or a person who succeeds to his interest . . . .” Because the parties’ relationship stemmed from a purchase and sale agreement, we agree with the trial court’s finding that the defendants were not tenants at sufferance.

The plaintiff’s next claim is that the trial court erred in failing to draw an adverse inference from the failure of the defendant Callie Patmon to appear and testify. Before an adverse inference may be drawn, two requirements must be met. The witness must be available, and he must be a witness whom the party would naturally produce. Secondino v. New Haven Gas Co., 147 Conn. 672, 675, 165 A.2d 598 (1960); Seperack v. Solaz, 17 Conn. App. 684, 690, 556 A.2d 175, cert. denied, 211 Conn. 804, 559 A.2d 1138 (1989). In order to have the jury charged or the court apply the Secondino inference, the party claiming the benefit from the inference must establish on the record that he or she is entitled to it. Blake v. Blake, 211 Conn. 485, 493, 560 A.2d 396 (1989). The plaintiff asserts in his brief that he proved all of the prerequisite conditions for an adverse inference at trial. The defendants’ brief, however, claims that there was no evidence presented to the trial court to support the plaintiff’s claim of availability. We are unable to resolve these opposing claims because the plaintiff has not supplied this court with a transcript showing a request that the court draw an adverse inference or proof of availability. It is the appellant’s responsibility to provide us with an adequate record for review. Practice Book § 4061; Buchetto v. Haggquist, 17 Conn. App. 544, 549, 554 A.2d 763, cert. denied, 211 Conn. 808, 559 A.2d 1141 (1989). Without a transcript this court has no basis to review the lower court’s findings and therefore will not disturb them. Boston Market Equipment Co. v. Chin, 9 Conn. App. 821, 822, 520 A.2d 232 (1987).

The plaintiff’s final claim is that there was insufficient evidence to support the trial court’s judgment in favor of the defendants. “We are entitled to presume that the trial court acted properly and considered all the evidence.” Soloman v. Aberman, 196 Conn. 359, 376, 493 A.2d 193 (1985). We will not address “wholesale challenges to the findings which result in attempts to have this court retry issues of fact.” Halperin v. Pine Plaza Corporation, 180 Conn. 85, 87, 428 A.2d 340 (1980). It is well established that the appellate courts will not retry facts or pass upon the credibility of witnesses and the weight to be accorded the evidence. Cioffoletti Construction v. Nering, 14 Conn. App. 161, 162, 540 A.2d 91 (1988). Our review is limited to a determination of whether the trial court’s judgment was clearly erroneous or contrary to law. Id. After a careful review of the record and arguments with respect to this claim, we hold that the trial court did not err.

There is no error.

In this opinion the other judges concurred.

       Although the document to which the plaintiff refers is entitled “Contract for Sale,” it can be more accurately characterized as a Bond for Deed, i.e., “an installment sale contract of real property where the buyer takes possession of the property but does not receive fee simple title of the property until a later date. Further, [a Bond for Deed] is used to assume the-existing mortgage loan . . . . ” R. Burke, Connecticut Real Property Law, §64.


author: Stoughton, J.

text:
    Connecticut Resources Recovery Authority v. Freedom of Information Commission et al.
    (7414)
    Dupont, C. J., O’Connell and Stoughton, Js.
    Argued May 11 —
    decision released August 29, 1989

      Susan P. Liemer, commission counsel, with whom, on the brief, was Mitchell W. Pearlman, general counsel, for the appellant (named defendant).

      Lissa J. Paris, with whom was Dina Plapler, for the appellee (named plaintiff).

      Gregory J. Southworth, with whom, on the brief, was William A. Wechsler, for the appellee (intervening plaintiff Signal Environmental Systems, Inc.).
   Stoughton, J.

The defendant Freedom of Information Commission (FOIC) appeals from the judgment of the trial court sustaining the plaintiff Connecticut Resources Recovery Authority’s (CRRA) appeal and reversing the FOIC’s decision requiring the CRRA to disclose a confidential bid proposal.

The trial court found the following facts. On April 22, 1983, the CRRA issued a request for proposals to redevelop the greater Bridgeport resource recovery facility. In that request, the CRRA stated that it would attempt to protect confidential information from disclosure. In response to the request for proposals, Signal Environmental Systems, Inc. (Signal), and others submitted their proposals. Subsequently, on invitation, Signal submitted a two part proposal. The CRRA approved Signal’s proposal and negotiated a contract with it. In a letter dated August 2,1986, New England Energy Consultants, by its president Ethan Book, requested that the CRRA provide it with a copy of Signal’s proposal. The CRRA denied the request on the basis that the proposal was exempt from disclosure under General Statutes § 1-19 (b).

Book then filed an appeal with the FOIC. The FOIC heard the matter as a contested case. After holding hearings, the FOIC concluded that the information contained in the proposal was information that was required by General Statutes § 22a-266, and therefore was not exempt under General Statutes § 1-19 (b) (5). The FOIC ordered the CRRA to provide Book with a copy of Signal’s proposal.

The CRRA appealed the decision to the trial court pursuant to General Statutes §§ 4-183 and l-21i (d), naming as defendants both the FOIC and Book. After the appeal was filed, Signal moved for permission to intervene in the action as a plaintiff and, there being no objection, the trial court granted Signal’s motion.

The CRRA maintained that the operative statute governing the proposal was General Statutes § 22a-268, not § 22a-266. After a hearing, the trial court concluded that Signal’s bid proposals contained commercial and financial information and were proprietary and confidential. The trial court concluded that the bid proposal had been made pursuant to § 22a-268 and that the FOIC had erred “in concluding that Signal was required by General Statutes § 22a-266 to provide proposals to the CRRA for the Recovery Project.” (Emphasis in original.)

On September 19, 1988, the FOIC filed this appeal of the trial court’s decision. By letter dated October 19, 1988, Book informed this court that he was not joining in the FOIC’s appeal.

Initially, the plaintiff Signal contends that the FOIC lacks standing to prosecute this appeal because Book has not taken an appeal to this court, and in fact has expressly withdrawn from this appeal. Signal argues that because the parties requesting these documents have “dropped out of this appeal,” the appeal is not being prosecuted by a party who can derive a benefit from a favorable decision by this court.

In Local 1303 & Local 1378 v. Freedom of Information Commission, 191 Conn. 173, 177, 463 A.2d 613 (1983), our Supreme Court dismissed an appeal brought by the FOIC because the court found that the commission was not an aggrieved party. In 1984, General Statutes § l-21i (d) was amended by Public Acts 1984, No. 84-311, which added the following language: “The commission shall have standing to defend, prosecute or otherwise participate in any appeal . . . from any judicial decision overturning or modifying a decision of the commission. If aggrievement is a jurisdictional prerequisite to the commission taking any such appeal, the commission shall be deemed to be aggrieved.” It is clear from the language, as well as the legislative history surrounding Public Acts 1984, No. 84-311, that the purpose of the act was to bestow upon the FOIC the power to pursue an appeal on its own behalf. Thus, there is no merit to Signal’s argument that the FOIC lacks standing.

There is merit, however, to its contention that any resolution of this appeal cannot result in any practical relief to the defendant.

It is a fixed principle of law that appellate courts do not decide moot questions. See, e.g., State v. Nardini, 187 Conn. 109, 112, 445 A.2d 314 (1982); Waterbury Hospital v. Connecticut Health Care Associates, 186 Conn. 247, 249-50, 440 A.2d 310 (1982); Rosnick v. Zoning Commission, 172 Conn. 306, 308-309, 374 A.2d 245 (1977). A case is moot if it is disconnected from the granting of actual relief or it involves a determination from which no practical relief to the complainant can follow. See Reynolds v. Vroom, 130 Conn. 512, 515, 36 A.2d 22 (1944). An appeal can become moot if a new statute is enacted that would prevent a claimant from being able to realize the benefits of any judgment he or she might receive. See DelMastro v. Liqour Control Commission, 146 Conn. 740, 154 A.2d 241 (1959).

After this action commenced, General Statutes § 22a-266 was substantially amended by Public Acts 1987, No. 87-451. Whether the information in the proposal was required under the language of § 22a-266 as it stood prior to that amendment is no longer a question of any consequence because there can be no future proposal subject to § 22a-266 as it existed before it was amended. See DelMastro v. Liquor Control Commission, supra; see also Horton v. Meskill, 195 Conn. 24, 42-43, 486 A.2d 1099 (1985).

We note also that Book no longer is a party to this action and, since it does not appear that anyone else is interested in the proposal, the only apparent consequence of an order of disclosure would be to vindicate the FOIC’s prior decision. This case thus involves a superseded statute, the interpretation of which can be of only academic interest to a state agency.

Existence of an actual controversy is an essential requisite to appellate jurisdiction. It is not the function of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow. Bowen v. Heintz, 206 Conn. 636, 642, 539 A.2d 122 (1988).

The appeal is dismissed as moot.

In this opinion the other judges concurred.

       Signal is now known as Wheelabrator Technologies, Inc.

       Book is the president of New England Energy Consultants. Hereinafter, these two parties will be referred to as Book.

       General Statutes § 22a-266 (Rev. to 1985) provided in pertinent part: “(b) Any contract for construction valued at over twenty-five thousand dollars shall be let by the authority pursuant to the process of open or competitive bidding, provided, the authority shall have power to determine the format, contents and scope of any contract for a waste management project, the conditions under which bidding shall take place and the schedule and stipulations for a contract award. The authority shall also have power to select the contractor deemed to have submitted the lowest qualified bid, price and other factors considered, when, in the judgment of the authority, such award is in the best interests of the state. The authority may in its discretion negotiate and enter into a contract or contracts with a single source for any of the professional services specified in subdivision (16) of subsection (a) of this section required by or attendant upon the development of the solid waste management system or any waste management project to be established in accordance with the provisions of this chapter.”

       Public Acts 1984, No. 84-311 provided in pertinent part: “an act concerning THE STANDING OF THE FREEDOM OF INFORMATION COMMISSION TO PROSECUTE AND DEFEND COURT APPEALS AND THE DISCLOSURE OF TRADE SECRETS.
      “Section 1. Subsection (d) of section l-21i of the general statutes, as amended by section 1 of public act 83-129, is repealed and the following is substituted in lieu thereof:
      “(d) Any party aggrieved by the decision of said commission may appeal therefrom, in accordance with the provisions of section 4-183. the commission SHALL HAVE STANDING TO DEFEND, PROSECUTE OR OTHERWISE PARTICIPATE IN ANY APPEAL OF ANY OF ITS DECISIONS AND TO TAKE AN APPEAL FROM ANY JUDICIAL DECISION OVERTURNING OR MODIFYING A DECISION OF THE COMMISSION. IF AGGRIEVEMENT IS A JURISDICTIONAL PREREQUISITE TO THE COMMISSION TAKING ANY SUCH APPEAL, THE COMMISSION shall BE deemed to be aggrieved. Notwithstanding the provisions of section 3-125, legal counsel employed or retained by said commission shall represent said commission in all such appeals and in any other litigation affecting said commission. Notwithstanding the provisions of subsection (b) of section 4-183 and section 52-64, all process shall be served upon said commission at its office. [Such appeals] any appeal taken pursuant to this section shall be privileged in respect to [their] its assignment for trial over all other actions except writs of habeas corpus and actions brought by or on behalf of the state, including informations on the relation of private individuals. Nothing in this section shall deprive any party of any rights he may have had at common law prior to January 1,1958. If the court finds that any appeal [brought] taken pursuant to this section or section 4-183 is frivolous or [brought] taken solely for the purpose of delay, it shall order the party responsible therefor to pay to the party injured by such frivolous or dilatory appeal costs or attorney’s fees of not more than one thousand dollars. Such order shall be in addition to any other remedy or disciplinary action required or permitted by statute or by rules of court.”

       Public Acts 1987, No. 87-451, provided in pertinent part: “Sec. 3. Section 22a-266 of the general statutes is repealed and the following is substituted in lieu thereof:
      * ** *
      “(b) Any [contract for construction valued at over twenty-five thousand dollars shall be let by the authority pursuant to the process of open or competitive bidding, provided, the authority shall have power to determine the format, contents and scope of any contract for a waste management project, the conditions under which bidding shall take place and the schedule and stipulations for a contract award. The authority shall also have power to select the contractor deemed to have submitted the lowest qualified bid, price and other factors considered, when, in the judgment of the authority, such award is in the best interests of the state. The authority may in its discretion negotiate and enter into a contract or contracts with a single source for any of the professional services specified in subdivision (16) of subsection (a) of this section required by or attendant upon the development of the solid waste management system or any waste management project to be established in accordance with the provisions of this chapter] CONTRACTS AUTHORIZED BY THIS CHAPTER SHALL BE ENTERED INTO BY THE AUTHORITY ON THE SAME BASIS AND SUBJECT TO THE SAME LIMITATIONS AND CONSIDERATIONS APPLICABLE TO MUNICIPAL AND REGIONAL RESOURCES RECOVERY AUTHORITIES PURSUANT TO SUBSECTION (C) OF SECTION 7-273bb, EXCEPT THAT IN ENTERING INTO A CONTRACT FOR A RESOURCES RECOVERY FACILITY, SOLID WASTE FACILITY, VOLUME REDUCTION PLANT OR SOLID WASTE MANAGEMENT SYSTEM, THE AUTHORITY SHALL CONSIDER THE BEST INTERESTS OF THE MUNICIPALITY OR REGION TO BE SERVED BY SUCH FACILITY, PLANT OR SYSTEM.”


author: Borden, J.

text:
    State of Connecticut v. Timothy Dills
    (7355)
    Borden, Spallone and Daly, Js.
    Argued May 5 —
    decision released August 29, 1989

      Judith Rossi, assistant state’s attorney, with whom, on the brief, was Robert Katz, assistant state’s attorney, for the appellant (state).

      William J. Kupinse, Jr., with whom was Kathleen H. Allsup, for the appellee (defendant).
   Borden, J.

This case requires us to resolve the apparent conflict between General Statutes § 54-56 and Practice Book §§ 815 (5) and 816. That conflict surfaces where, as in this case, the trial court, acting pursuant to General Statutes § 54-56, dismisses before trial an information against a defendant who was arrested pursuant to a warrant.

The defendant was arrested pursuant to a warrant, and an information was filed against him charging him with larceny in the second degree in violation of General Statutes § 53a-123. The arrest arose out of a transaction between the defendant and Atlantech, Inc., in which Atlantech installed certain equipment and performed certain services on a boat owned by the defendant, and the defendant thereafter stopped payment on a check he had delivered to Atlantech in partial payment for the equipment and labor.

The defendant moved to dismiss the information pursuant to Practice Book § 815 (9), which provides for a pretrial dismissal based on any grounds other than those specified in Practice Book § 815 (1) through (5). The trial court, however, granted the motion pursuant to § 54-56. This appeal followed.

The trial court specifically ruled that it had no authority to dismiss the information under Practice Book § 815 (9) because Practice Book § 816 prohibits a defendant who was arrested pursuant to a warrant from moving to dismiss under that subsection. See footnote 2, supra. Nonetheless, the court ruled that it did have authority to act on the defendant’s motion under § 54-56, and therefore treated the motion as having been made under that statute. The court further noted that a warrant had been issued, and stated that it had examined the contents of the warrant affidavit and was satisfied that it established probable cause. The court then stated its reasons for dismissing the information over the state’s objection. Those reasons are summarized as follows.

First, the court noted that both the state and the defendant had earlier indicated that there were out-of-state witnesses who would have to be produced or whose depositions would have to be taken. Second, the court stated the basis of the state’s claim that, when the defendant stopped payment on the check, he had ■the intent to obtain possession of the boat and leave Connecticut with it, and thus avoid payment of any obligation incurred as a result of Atlantech’s labor and installation of equipment. In this connection, the court questioned whether the state “could persuade a jury beyond a reasonable doubt of [the defendant’s] criminal intent,” because the defendant subsequently issued Atlantech a $6000 check that Atlantech did not cash. Third, the court stated that Atlantech did not seek civil redress, but boarded the boat to remove the equipment it had installed. Fourth, the court stated its belief that the dispute between the defendant and Atlantech was “best resolved in a civil situation,” and that Atlantech’s interests could be protected by the defendant’s agreement to put a sum of money in escrow and to submit to civil process. The court concluded: “I feel that the cost to the citizens of the state [of] a protracted trial in which it was not obvious that the state would be able to maintain the high standard of proof required in a criminal case to prove beyond a reasonable doubt, warrants that the Court grant the motion to dismiss under [the] circumstances . . . under [General Statutes §] 54-56 not under the rules.”

The state claims that the court erred because (1) § 54-56 did not apply to this case, (2) if § 54-56 did apply, the court abused its discretion in dismissing the information, and (3) to the extent that § 54-56 conflicts with Practice Book §§ 815 and 816, the statute violates the constitutional principle of separation of powers. We find error on the state’s first claim, and therefore need not reach its other claims.

The state’s claim that § 54-56 did not apply to this case is dispositive. The state argues that the court relied on the “insufficient evidence” prong of § 54-56; see footnote 1, supra; and that that reliance was erroneous because the defendant was arrested pursuant to a warrant. See State v. Bellamy, 4 Conn. App. 520, 527, 495 A.2d 724 (1985). The defendant responds that the court relied on the “insufficient cause” prong of the statute, and that the court properly exercised its power under State v. Corchado, 200 Conn. 453, 512 A.2d 183 (1986). We agree with the defendant that the trial court relied on the insufficient cause prong of § 54-56. We also agree with the state, however, that § 54-56 does not apply to this case.

General Statutes § 54-56 and Practice Book §§ 815 and 816 appear to conflict with each other. Section 54-56 permits the court to dismiss an information “at any time, upon motion by the defendant . . . if . . . there is not sufficient evidence or cause to justify a bringing or continuing of such information . . .’’Practice Book § 815 (5) mirrors § 54-56 by providing for a motion to dismiss an information for “(5) [insufficiency of evidence or cause to justify the bringing or continuing of such information . . . .” Practice Book § 816, however, provides that “[n]o defendant . . . who has been arrested pursuant to a warrant may make a motion under [paragraph] (5) . . . of Sec. 815.” Thus, facially at least, the two provisions — legislative and judicial — present a constitutional issue of the separation of powers. See, e.g., State v. King, 187 Conn. 292, 296-98, 445 A.2d 901 (1982).

We are obligated, however, where reasonably possible, to read statutes so as to avoid calling their constitutionality into question. Kredi v. Benson, 1 Conn. App. 511, 515, 473 A.2d 333, cert. denied, 193 Conn. 803, 474 A.2d 1260 (1984). Applying this canon of construction to General Statutes § 54-56, we conclude that it does not apply to this case because the defendant was arrested pursuant to a warrant and no trial has yet been held.

We begin with an analysis of the background against which § 54-56 must be read. It has long been the law in Connecticut that the state's attorney derives his authority from the common law, that it is his duty to determine whether reasonable grounds exist to proceed with a criminal charge, and that “[i]n the discharge of the functions of his high public office he has broad discretion in determining what crime or crimes to charge in any particular situation.” State v. Haskins, 188 Conn. 432, 473-74, 450 A.2d 828 (1982); see also, State v. Main, 31 Conn. 572, 576 (1863). “So long as he acts within the jurisdiction of his office it is not appropriate for a court to set policy for the performance of his prosecutorial function.” State v. Haskins, supra, 474. The criminal justice system vests him with broad discretion to determine whether to press a prosecution. State v. Corchado, supra, 460. “In the absence of statutory authority, the court has no power of its own motion to dismiss a criminal prosecution unless there is a fundamental legal defect in the information or indictment (such as want of jurisdiction or form of the information), or a constitutional defect such as denial of the right to a speedy trial . . . . ” State v. Carr, 172 Conn. 608, 610-11, 376 A.2d 74 (1977).

General Statutes § 54-56 constitutes a grant of such “statutory authority.” That does not mean, however, that it necessarily applies to this case. What may appear to be clear legislative language should not be read to preclude a legislative intent that is disclosed by the history or purpose of a statute. State v. Bellamy, supra, 523. The purpose of the statute is “ ‘to prevent uncheeked power by a prosecuting attorney.’ State v. Carroll, 13 Conn. Sup. 112 (1944); see also State v. Bellamy, 4 Conn. App. 520, 527, 495 A.2d 724 (1985); State v. Reinosa, 29 Conn. Sup. 117, 118, 274 A.2d 524 (1970).” State v. Corchado, supra.

Consistently with that purpose, we have held that the evidentiary insufficiency prong of § 54-56 “does not apply where a judge has found probable cause and authorized the issuance of an arrest warrant. In such a case, the judicial authority’s considered judgment has been interposed between the power of the prosecuting attorney and the rights of a defendant. The prosecutorial power is not unchecked; it has already been subject to the prior check of the judicial authority’s ‘independent determination that probable cause exists as to each element of every crime charged.’ State v. Heinz, [193 Conn. 612, 617, 480 A.2d 452 (1984)].” State v. Bellamy, supra, 527. In Bellamy, we read State v. Morrill, 193 Conn. 602, 605, 478 A.2d 994 (1984), to hold that, in the absence of an invocation of Practice Book § 816, the court may rely “on General Statutes § 54-56 to dismiss an information which is preceded by an arrest warrant . . . if it is conclusively established that the court has before it all the evidence which the state will be able to produce at trial.”

The insufficient cause prong of § 54-56 stands on a somewhat different footing, however, from the insufficient evidence prong. Whereas the insufficient evidence prong invites an inquiry into whether the evidence, viewed most favorably to the state, would support a guilty verdict; State v. Morrill, supra, 611-12; the insufficient cause prong invokes “the notion of fairness” that must “[permeate] the considerations to be given to the trial court’s decision .... Thus, a balancing process must occur which weighs the interests of the state and society . . . against the interest of the defendant. . . .” State v. Corchado, supra, 458. The court’s discretion in this regard “must be informed and guided by considerations of fundamental fairness that are ingrained in the concept of due process of law.” Id., 459. In exercising its discretion, the court must explicitly weigh the competing factors on both sides; id., 459; and must exercise its statutory power with great caution and only when the circumstances are compelling. Id., 460.

An examination of the history of § 54-56, and the cases in which it has been employed to sanction dismissals for cause, also sheds light on its scope. It was first interpreted in a reported decision by Judge (later Chief Justice) Wynne, in State v. Carroll, supra. Judge Wynne stated that he had “personal recollection of the reasons urged when the law was enacted in 1921. . . . What the statute was designed for, the very purpose for which it is now invoked, is a matter of legislative and judicial history.

“In the spring of 1921 a case was tried involving a prominent lawyer before the Superior Court for Hartford County. The jury disagreed. The judge who presided, as well as counsel for the defense, saw the necessity for a law such as was passed. It was approved June 2, 1921. On June 17, 1921, a nolle pros was entered. The coincidence requires no comment.” (Emphasis in original.) Id., 112.

In Carroll itself, Judge Wynne dismissed the information against the defendant after two juries had refused to convict him, where the court was confident that the defendant would be acquitted on a third trial. Id., 112-13. Thus, in Carroll, the court read the statute as aimed at permitting a court to dismiss an information after a trial ending in a mistrial, and applied the statute in such a situation.

In State v. Corchado, supra, the court upheld the trial court’s dismissal of the information after the defendant’s conviction had been reversed on appeal and a new trial had been ordered. We note also that in Corchado the defendant had not been arrested pursuant to a warrant. See State v. Corchado, 188 Conn. 653, 656, 453 A.2d 427 (1982); see also Connecticut Supreme Court Records & Briefs, Part II, October Term, 1982. Indeed, the principal out-of-state authority on which the Corchado court relied was State v. Abbati, 99 N. J. 418, 434, 493 A.2d 513 (1985), a reprosecution case. In State v. Daniels, 207 Conn. 374, 397, 542 A.2d 306 (1988), the court relied on § 54-56 to permit the trial court to exercise its discretion to dismiss a death penalty proceeding after the jury had become deadlocked on the penalty phase. Oúr research fails to disclose any reported case where the insufficient cause prong of § 54-56 has been found to support a dismissal of an information before at least one trial has been held.

Mindful of our obligation to interpret § 54-56 so as to avoid a constitutional collision with Practice Book § 816, of the judicial and legislative origins of the statute, and of the rare but consistent instances of the statute’s judicial application, we conclude that where, as here, no trial has yet been held and where Practice Book § 816 is invoked, the insufficient cause prong of the statute is an inappropriate basis for dismissal of an information preceded by an arrest warrant. There are, moreover, practical policy considerations that support this conclusion.

Dismissal under § 54-56 for insufficient cause to justify the prosecution requires the court explicitly to weigh all the competing factors and considerations of fundamental fairness to both sides — the defendant, the state and society, and presumably the victim. This must be done with great caution, and a dismissal ordered only when the circumstances are compelling. State v. Corchado, 200 Conn. 453, 458-60, 512 A.2d 183 (1986). This difficult and delicate process necessarily involves a careful consideration by the court of such factors as the strength of the state’s case, the likelihood of conviction, the severity of the crime, its effect on the victim, the strength of the defendant’s defense, the defendant’s personal situation, and all the other myriad factors that underlie a judgment regarding fundamental fairness. Although we are not prepared to say that an informed judgment about such factors can never be reached short of trial, certainly such a judgment can be better formed after the court has had the opportunity to view at least one trial of the charges contained in the information sought to be dismissed for insufficient cause.

Thus, the trial court in this case erred in granting the defendant’s motion to dismiss. This conclusion renders it unnecessary to consider the state’s claim that the trial court abused its discretion under General Statutes § 54-56.

There is error, the judgment is set aside, and the case is remanded for further proceedings according to law.

In this opinion the other judges concurred.

       General Statutes § 54-56 provides: “All courts having jurisdiction of criminal cases shall at all times have jurisdiction and control over informations and criminal cases pending therein and may, at any time, upon motion by the defendant, dismiss any information and order such defendant discharged if, in the opinion of the court, there is not sufficient evidence or cause to justify the bringing or continuing of such information or the placing of the person accused therein on trial.” (Emphasis added.)

       Practice Book § 815 (5) provides: “The following defenses or objections, if capable of determination without a trial of the general issue, shall, if made prior to trial, be raised by a motion to dismiss the indictment or information ... (5) Insufficiency of evidence or cause to justify the bringing or continuing of such information or indictment or the placing of the defendant on trial. ...”
      Practice Book § 816 provides: “No defendant who has been indicted by a grand jury or who has been arrested pursuant to a warrant may make a motion under paragraphs (5) or (9) of Sec. 815.”

       The defendant does not challenge that determination on appeal.

       The state, in response, informed the court that it had determined that it did not need to produce any out-of-state witnesses as part of its case.

       This referred to the defendant’s claim that, subsequent to the defendant’s stop payment order, Atlantech traced the boat to Maryland, where agents of Atlantech illegally removed some of the equipment it had installed on the boat.

       This referred to the fact that the defendant had followed the court’s earlier recommendation to put a sum of money in escrow with his attorneys, and to submit to service of civil process by Atlantech.

         We note that subsequently, in State v. Daniels, 209 Conn. 225, 236, 550 A.2d 885 (1988), the court acknowledged that the issue of whether § 54-56 applies to a death penalty proceeding was “a serious question”; id.; but adhered to its earlier ruling under the law of the case doctrine. Id., 237.


author: Spallone, J.

text:
    James J. Sotire, Sr. v. City of Stamford et al.
    (6328)
    Spallone, Daly and Foti, Js.
    Argued January 18 —
    decision released August 29, 1989

      William F. Gallagher, with whom, on the brief, were Noel R. Newman and Kerrie C. Dunne, for the appellant (plaintiff).

      Thomas F. Maxwell, Jr., with whom, on the brief, was Kathleen M. Byrne, for the appellees (defendants).
   Spallone, J.

The plaintiff, James J. Sotire, Sr., appeals from the judgment for the defendants rendered in his action for a writ of mandamus and for injunctive and other equitable relief. The plaintiff claims that the trial court erred (1) in refusing to exercise jurisdiction over a certain individual, and (2) in holding that no procedural due process right of the plaintiff had been violated. We find no error.

The plaintiff has served as the building official and zoning enforcement officer of the city of Stamford since 1966. During 1983 and 1984, the Holiday Inn’s Crown Plaza was under construction in Stamford. The plaintiff’s office was responsible for performing the inspections necessary to ensure that all construction complied with state building codes. If building code requirements were met, the plaintiff’s office would issue a certificate of occupancy. The plaintiff had the power to seek suspension of the hotel’s operations for any violation of the city’s municipal codes or ordinances.

On January 3, 1984, the plaintiff made a telephone call to John Healey, the Holiday Inn’s engineer, who was in charge of internal operations such as heating and air conditioning for the soon-to-be opened hotel. During his conversation with Healey, the plaintiff strongly recommended that the Holiday Inn award its garbage and refuse handling contract to a company owned by a friend of the plaintiff. Healey tape-recorded the conversation. By the time the telephone conversation took place, the Holiday Inn had already solicited bids for garbage and refuse service from various refuse haulers. Shortly before the plaintiffs call to Healey, the Holiday Inn had rejected a bid submitted by the company recommended by the plaintiff. The plaintiff urged Healey to reconsider the rejection and to award the contract to the company owned by the plaintiffs friend.'

A Holiday Inn staff member delivered a tape of the conversation between the plaintiff and Healey to the Stamford police department’s special investigations unit. The police subsequently conducted an investigation, but the plaintiff was never charged with any crime.

The Stamford Advocate, a local newspaper, also received a copy of the tape and, on or about September 20, 1985, an Advocate reporter brought the matter to the attention of Thom Serranni, mayor of the city of Stamford. Upon hearing the tape, Serranni filed a written complaint with the defendant board of ethics of the city of Stamford (board) and requested that the board conduct an investigation into a possible violation of the city’s code of ethics. In addition, Serranni informed the plaintiff’s supervisor, John O’Brien, the commissioner of public works, about the tape. After conducting his own investigation and giving the plaintiff an opportunity to explain himself, O’Brien immediately suspended the plaintiff, with pay, effective September 20, 1985.

The board provided the plaintiff with written notice of its inquiry, heard testimony from the plaintiff and others at public hearings, offered to subpoena witnesses on the plaintiff’s behalf, accepted all exhibits and evidence offered by the plaintiff, and placed no limit on the scope of the plaintiff’s counsel’s examination and cross-examination of witnesses. The board and the public had access to and listened to the tape, and a transcript of the tape was provided. At the conclusion of the public hearing, the board engaged legal counsel to assist it in interpreting the code. The board afforded the plaintiffs counsel the opportunity to meet with and to present information to its retained counsel. Subsequently, on March 3,1986, the board rendered its written memorandum of decision, finding that the plaintiff had violated § 4 of the code.

Shortly after the board had begun its inquiry, the plaintiff, by complaint dated December 9, 1985, commenced an action against the city of Stamford, the board, and the individual members of the board, seeking to enjoin the defendants from further investigating, conducting hearings on, or rendering a decision on any charge that the plaintiff had violated the city code of ethics. The plaintiff claimed that the board was conducting hearings in violation of his right to due process in that, inter alia, the board had failed to give him adequate notice of the proceedings, had failed to promulgate rules and regulations as required by the code, and had failed to record the proceedings. The plaintiff further claimed that the board had prejudged the matter and thus was not an impartial decision maker. Finally, the plaintiff claimed that if the board found him to be in violation of the code, he would be subject to demotion or discharge under § 740 (2) of the Stamford charter. In order to avoid immediate and irreparable harm to his constitutional rights, his reputation in the community and his livelihood, the plaintiff requested preliminary and permanent injunctive relief to restrain the defendants from further investigating any complaint regarding a violation on his part of the code of ethics. On January 28,1986, the parties stipulated that the action would be withdrawn without prejudice to either party to reinstitute proceedings within ten days after the board rendered its decision. The board then concluded its hearings and deliberations and rendered its decision against the plaintiff on or about March 3, 1986.

On or about April 1, 1986, the plaintiff filed an amended complaint against the city of Stamford, the board, and the individual members of the board. In the amended complaint he alleged that the board had repeatedly disregarded and violated the code in connection with the matter involving the plaintiff, that, as a result, he had been deprived of his federal and state constitutional rights to procedural due process and that his livelihood had been placed in jeopardy and his reputation damaged. In his claim for relief, he requested: (1) preliminary and permanent injunctions to prohibit “the defendants, their agents, servants and employees, from proceeding in any manner on any charges that the plaintiff violated the Code of Ethics of the City of Stamford, including, but not limited to, conducting further investigations, conducting further hearings and/or acting on any decision of the Board of Ethics . . . that the plaintiff violated the Code”; (2) a writ of mandamus requiring the defendants to promulgate rules and regulations of procedure as required by § 12.B of the code of ethics; (3) a writ of mandamus ordering the defendants to prescribe a form for written complaints, as required by § 12.C.2.a. of the code of ethics; and (4) a writ of mandamus ordering the defendants to write a handbook clearly explaining the rights and responsibilities of officers and employees of the city of Stamford, as required by § 12.C.4 of the code of ethics. On July 8,1986, O’Brien notified the plaintiff that, due to the plaintiff’s misconduct, he was being demoted in rank and pay. Thereafter, on July 29, 1986, the trial court issued a temporary injunction prohibiting the city of Stamford, its agents, servants and employees from filling the position of chief building inspector until the matter had been decided by the court. This order was served on O’Brien, although he was not specifically named in it.

By memorandum of decision dated July 20,1987, the trial court, McGrath, J., found the issues for the defendants, and judgment entered accordingly on August 4, 1987. The trial court made the following rulings: (1) even if it was assumed that constitutionally protected liberty and property interests were involved, the board did not deprive the plaintiff of such interests merely by concluding that there had been a violation of the code of ethics; (2) the plaintiffs request for an injunction prohibiting the board from acting was moot in that the board had already issued its decision and therefore there was nothing to enjoin; (3) mandamus did not lie; and (4) issues raised by the plaintiff regarding the propriety of action taken by O’Brien would not be addressed because O’Brien was not a named defendant and the court lacked jurisdiction to address the claims.

The plaintiff’s first claim of error is that the trial court erred in failing to exercise jurisdiction over O’Brien. In its memorandum of decision, the trial court stated: “The final issues raised by the plaintiff address the impropriety of the actions of John O’Brien. It is noted that Mr. O’Brien is not a named defendant and this court lacks jurisdiction to address these claims.” It is apparently this ruling that the plaintiff challenges on appeal. The record does not reveal, however, what claims were before the trial court when it so ruled or what the basis for the ruling was, and the plaintiff has failed either to obtain an articulation pursuant to Practice Book § 4051 or to refer us to the relevant portions of the transcript; see Practice Book § 4065 (d); or official court file; see Practice Book § 4074. It is the appellant’s responsibility to ensure that an adequate record is presented for review. Practice Book § 4061; J. M. Lynne Co. v. Geraghty, 204 Conn. 361, 376, 528 A.2d 786 (1987). The plaintiff has failed to discharge that responsibility. Under such circumstances, we decline to review the plaintiff’s claim.

The plaintiff’s second claim is that the trial court erred in holding that he was not deprived of his rights to procedural due process under either the Connecticut constitution or the United States constitution. Although the trial court did rule that no violation of procedural due process rights was involved, we need not review that ruling because the trial court’s decision in favor of the defendants may be upheld on other grounds. We need not consider constitutional issues unless absolutely necessary to the decision of the case. Edelson v. Zoning Commission, 2 Conn. App. 595, 600, 481 A.2d 421 (1984). We are authorized to rely upon alternative grounds supported by the record to sustain a judgment. Golab v. New Britain, 205 Conn. 17, 27, 529 A.2d 1297 (1987). We uphold the judgment of the trial court because we find that the court correctly decided that the plaintiff was not entitled to the writs of mandamus or to the injunctive relief requested.

The plaintiff’s complaint alleged that the board had determined that he had violated the code by engaging in the telephone conversation with Healey; that it had done so only after failing to provide appropriate procedural safeguards, in violation of his state and federal constitutional rights to due process; that, as a result, the plaintiff’s livelihood was endangered and his reputation injured; and that, unless his requests for relief in the form of a permanent injunction and writs of mandamus were granted, he would suffer immediate and irreparable harm “to his constitutional rights, his rights under the laws, statutes and ordinances of the United States, State of Connecticut and City of Stamford, his reputation in the community, and his livelihood . . . .” The trial court correctly concluded that the plaintiff’s request for injunctive relief was moot insofar as it related to activity on the part of the board, which had already completed its investigation and rendered its decision. Moreover, to the extent that the request for injunctive relief can be construed as a request that the defendant city be enjoined from taking action to alter or terminate the status of the plaintiffs employment, the trial court properly denied such relief. Where there is an adequate remedy at law, there is no entitlement to an injunction. Stocker v. Waterbury, 154 Conn. 446, 449, 226 A.2d 514 (1967); see also Clark v. Gibbs, 184 Conn. 410, 419, 439 A.2d 1060 (1981); Theurkauf v. Miller, 153 Conn. 159, 161, 214 A.2d 834 (1965); Stapleton v. Lombardo, 151 Conn. 414, 416, 198 A.2d 697 (1964). The plaintiff had available an administrative remedy, the grievance procedure provided for by the collective bargaining contract between the city and the union of which he was a member. Because the plaintiff had an adequate alternative remedy, the trial court did not err in refusing to enjoin the city from acting to alter or terminate the plaintiffs employment.

With regard to the plaintiffs requests for writs of mandamus, the trial court properly concluded that, under the circumstances, the writs should not issue. The plaintiff requested writs of mandamus for the following purposes: (1) to order the defendants to promulgate rules and regulations, as required by § 12.B of the code of ethics; (2) to order the defendants to prescribe a form for written complaints, as required by § 12.C.2.a. of the code; and (3) to order the defendants to create and maintain a handbook clearly explaining, with practical examples, the rights and responsibilities of officers and employees of the city of Stamford, as required by § 12.C.4. of the code. “Mandamus is an extraordinary remedy, available in limited circumstances for limited purposes. Beccia v. Waterbury, 185 Conn. 445, 453, 441 A.2d 131 (1981).” Golab v. New Britain, supra, 19. The issuance of the writ rests in the discretion of the court, and that discretion will be exercised in favor of issuing the writ only where the plaintiff has a clear legal right to have done that which he seeks. Id. “The writ is proper only when ‘(1) the law imposes on the. party against whom the writ would run a duty the performance of which is mandatory and not discretionary; (2) the party applying for the writ has a clear legal right to have the duty performed; and (3) there is no other specific adequate remedy.’ Bahramian v. Papandrea, 184 Conn. 1, 3, 440 A.2d 777 (1981).” Golab v. New Britain, supra, 20. Even if it is assumed that, as a general matter, the board had a plain positive duty under the law to do the things that the plaintiff requested the court to order it to do by issuing writs of mandamus, and that the plaintiff had a clear legal right to the performance of those duties, the writs were properly denied because the plaintiff could no longer benefit in any meaningful way from the granting of the writs. “ 'Even though the plaintiff has a legal right to the matter sought, the writ will not issue if that right be nothing more than a naked right. In addition to a bare legal right, he must have a proper interest in, and a proper purpose to be served by, the doing of the act sought to be ordered. . . . “If the right sought to be enforced is or has become a mere abstract right, the enforcement of which will be of no substantial or practical benefit to the petitioner, the writ will not issue though otherwise the applicant would be entitled to it.” State ex rel. Shelton v. Edwards, 109 Conn. 249, 253, 146 A. 382 [1929].’ State ex rel. Donahue v. Holbrook, 136 Conn. 691, 693, 73 A.2d 924 [1950].” Pape v. McKinney, 170 Conn. 588, 595-96, 368 A.2d 28 (1976). The interest of the plaintiff in this case in the issuance of a writ of mandamus for the purposes stated was tied to his having been made the focus of a board inquiry. Whatever legally cognizable interest he may have had in a prescribed complaint form, duly promulgated board regulations, and a handbook on ethics prior to the board proceedings, that interest did not survive the board’s completion of proceedings and its rendering of a decision. Accordingly, the trial court correctly refused to grant the plaintiff’s request for writs of mandamus.

We uphold the judgment of the trial court on the ground that the plaintiff was not entitled to any of the relief requested.

There is no error.

In this opinion the other judges concurred.

       The board, a volunteer lay board consisting of five resident electors of the city of Stamford, has the responsibility for investigating and conducting hearings in matters referred to it that arise under the code of ethics.

       Section 4 of the code provides in pertinent part: ‘‘No officer or employee shall engage in any business or transaction or have a financial or personal interest, directly or indirectly, which is in conflict with or incompatible with the proper discharge of his official duties or would tend to influence or impair his independence of judgment and action in the performance of his official duties.”

       Although the parties had stipulated that the action brought by the plaintiff in December, 1985, would be withdrawn, the plaintiff did not withdraw it.

       Specifically, the plaintiff alleged in the amended complaint that the board had “ignored, disregarded and violated the Code in one or more of the following respects:
      “(a) In that it failed to promulgate rules and regulations of procedure after a public hearing as required by Section 12B of the Code;
      “(b) In that it initiated action against the plaintiff prior to receiving a written complaint on a ‘form prescribed by the Board’ as required by Section 12C2a of the Code;
      “(c) In that it initiated action against the plaintiff prior to receiving a written complaint signed under penalty of false statement as required by Section 12C2a of the Code;
      “(d) In that it failed to allow the plaintiff to be represented by counsel during all phases of the proceedings as required by Section 12C2a of the Code;
      “(e) In that it failed to take oral testimony under oath at the public hearings as required by Section 12C2b of the Code;
      “(q In that it failed to record and transcribe all public hearings as required by Section 12C2b of the Code;
      “(g) In that it failed to create and maintain a handbook clearly explaining rights and responsibilities of municipal officers and employees under the Code as required by Section 12C4 of the Code.”

       The plaintiff also alleged that he had been “deprived of his federally guaranteed rights provided in Title 42, Sections 1983 and 1985, of the United States Code” and, without elaboration, that he had also been “deprived of his rights under the laws, statutes and ordinances of the State of Connecticut and City of Stamford.”


text:
    Walter A. Hansted v. Safeco Insurance Company of America
    (7375)
    Daly, O’Connell and Foti, Js.
    Argued May 17 —
    decision released August 29, 1989

      Stephen R. Beilis, for the appellant (plaintiff).

      Matthew E. Frechette, for the appellee (defendant).
   Foti, J.

In this breach of contract and indemnification action, the plaintiff appeals from the judgment rendered in favor of the defendant. The dispositive issue is whether the trial court erred in finding that the plaintiffs action was barred by the doctrine of collateral estoppel. We find error.

The following facts are undisputed. In a prior action initiated in February, 1986, Rocco Candella, by his subrogee, Safeco Insurance Company of America (Safeco), sued Walter Hansted for negligence. Candella v. Hansted, Superior Court, judicial district of New Haven, No. CV86-245366 (September 24,1986). In that case, Candella alleged that as a result of Hansted’s negligent operation of Candella’s vehicle, Hansted drove the car off the road and into a tree, causing $8587.38 worth of damage to the car. The complaint stated that Hansted did not have permission to drive the vehicle. In that action, Hansted was defaulted for failure to appear. Thereafter, pursuant to Practice Book § 367 and General Statutes § 52-221, Hansted filed a notice of his intention to defend as to damages by presenting evidence that he had permission to drive Candella’s car, thereby entitling him to indemnification under Candella’s insurance policy with Safeco. After the trial court refused to permit such evidence at the hearing in damages, judgment was rendered against Hansted and damages in the amount of $8287.58 were awarded. No appeal was taken from the judgment. Hansted’s insurer, General Accident Insurance Company (General), satisfied the judgment.

On June 23,1987, Hansted, by his subrogee, General, initiated the present breach of contract and indemnification action against Safeco, Candella’s insurer. In the present suit, the plaintiff alleged that, at the time of the accident, he was a “covered person” under Candella’s insurance policy with Safeco because he had permission to drive the vehicle. Hansted claimed, therefore, that he was entitled to indemnification from Safeco for the damages paid in the Candella case.

The trial court found that the issue of whether Hansted had permission to drive Candella’s vehicle was raised by the pleadings in Candella and that Hansted had a “fair opportunity to appear and defend that action.” The court concluded that the default judgment rendered in the prior action constituted an admission by Hansted of all the allegations of the plaintiff’s complaint including the allegation that Hansted did not have permission to drive Candella’s car and, as a consequence, that he was collaterally estopped from relitigating that issue in the present action. Because we conclude that the resolution of the issue of permission was not necessary to the prior judgment, and, therefore, relitigation of that issue was not precluded by principles of collateral estoppel, we find error.

The principles with respect to collateral estoppel or issue preclusion are well established. “ ‘The doctrines of res judicata and collateral estoppel protect the finality of judicial determinations, conserve the time of the court, and prevent wasteful relitigation. . . . Collateral estoppel, or issue preclusion, prevents a party from relitigating an issue that has been determined in a prior suit.’ Gionfriddo v. Gartenhaus Cafe, 15 Conn. App. 392, 401-402, 546 A.2d 284 (1988), [aff'd, 211 Conn. 67, 557 A.2d 540 (1989)]; see also State v. Ellis, 197 Conn. 436, 462-67, 497 A.2d 974 (1985); In re Juvenile Appeal (83-E), 190 Conn. 310, 313-18, 460 A.2d 1277 (1983); Gennarini Construction Co. v. Messina Painting & Decorating Co., 15 Conn. App. 504, 509-10, 545 A.2d 579 (1988). ‘For an issue to be subject to collateral estoppel, it must have been fully and fairly litigated in the first action. It also must have been actually decided and the decision must have been necessary to the judgment.’ Gionfriddo v. Gartenhaus Cafe, supra, 402; State v. Ellis, supra, 463; Restatement (Second), Judgments § 27; see also P.X. Restaurant, Inc. v. Windsor, 189 Conn. 153, 161, 454 A.2d 1258 (1983); F. James & G. Hazard, Civil Procedure (3d Ed.) §§ 11.16 through 11.19.” Virgo v. Lyons, 209 Conn. 497, 501, 551 A.2d 1243 (1988).

The first step in the analysis as to whether the plaintiff should be collaterally estopped from bringing this action, therefore, is to determine whether the default judgment entered against him in Candella constitutes a full and fair adjudication of the issue of permission. There is a divergence of views among the states and commentators as to whether a prior judgment rendered by default can have collateral estoppel effect in a subsequent action. Slattery v. Maykut, 176 Conn. 147, 159 n.8, 405 A.2d 76 (1978); see annot., 77 A.L.R. 2d 1410 (cases cited therein); 1 Restatement (Second), Judgments § 26; F. James & G. Hazard, Civil Procedure (2d Ed.) § 11.17. The resolution of this question has not been decided by a Connecticut court. It is not necessary for us to address this issue of first impression, however, because we find that the issue of permission was neither actually decided in nor essential to the prior judgment. Virgo v. Lyons, supra.

According to the Restatement (Second), Judgments, “[i]f issues are determined but the judgment is not dependent upon the determinations, relitigation on those issues in a subsequent action between the parties is not precluded. Such determinations have the characteristics of dicta . . . . ” Restatement (Second), Judgments § 27, comment, p. 258. The question, therefore, is whether “the issue was actually recognized by the parties as important and by the trier as necessary to the first judgment.” Id., p. 261.

In Candella, the complaint alleged that Hansted negligently operated Candella’s vehicle. To prove his cause of action, Candella had to establish, by a preponderance of the evidence, that Hansted owed Candella a duty of care, that this duty was breached and that the breach was the proximate cause of the actual harm suffered by Candella. Coburn v. Lenox Homes, Inc., 186 Conn. 370, 373, 441 A.2d 620 (1982); D. Wright & J. Fitzgerald, Connecticut Law of Torts (2d Ed.) § 29. Although Candella’s complaint alleged that Hansted did not have permission to drive his car, it was not necessary for Candella to establish the absence of permission to prevail on his negligence claim. Thus, as to the liability phase of the prior action, the issue of permission was not essential to the default judgment rendered against Hansted.

On the facts of the case, the issue of permission was similarly neither essential nor relevant to the damages phase of the proceeding. In Hansted’s memorandum of law filed in support of his notice to present a defense at the hearing in damages, Hansted stated his intention to introduce evidence that he had permission to drive the car. According to his memorandum, his express purpose for introducing this evidence was to establish that he was entitled to a defense and indemnification by Safeco under the provisions of Safeco’s insurance policy with Candella. Hansted did not file a counterclaim in Candella seeking indemnification. The trial court denied Hansted’s motion to introduce evidence of permission at the hearing in damages. Although the record does not disclose the trial court’s reason for refusing to permit the defendant to introduce evidence of permission, it could have reasonably found that, in the absence of a counterclaim seeking indemnification from Safeco, such evidence was not relevant to establish damages or to refute liability in a negligence action. Although the issue of permission is relevant to a claim of indemnification pursuant to the terms of the insurance contract, that claim was not before the court. Accordingly, because we find that the issue of whether Hansted had permission to drive the car was not relevant to the issues involved in the liability or damage phases of the first action, it could not have been essential to the outcome of that action. Under these circumstances, therefore, it was error for the trial court to preclude the plaintiffs action on collateral estoppel grounds.

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.

       Issue preclusion or collateral estoppel can be distinguished from claim preclusion or res judicata. Issue preclusion is the doctrine that bars the “relitigation” of an issue of ultimate fact by the same parties upon a different cause of action. State v. Aillon, 189 Conn. 416, 424, 456 A.2d 279, cert. denied, 464 U.S. 837, 104 S. Ct. 124, 78 L. Ed. 2d 122 (1983). By contrast, “[ujnder ‘the doctrine of res judicata, or claim preclusion, a former judgment on a claim, if rendered on the merits, is an absolute bar to a subsequent action on the same claim. A judgment is final not only as to every matter which was offered to sustain the claim, but also as to any other admissible matter which might have been offered for that purpose. . . .’’’State v. Ellis, 197 Conn. 436, 462-63, 497 A.2d 974 (1985), quoting State v. Aillon, supra, 423-24. In Ellis, the court questioned the continued viability of distinguishing between claim and issue preclusion and suggested that the ultimate inquiry, as to both concepts, should be to ask whether the party had an “ ‘adequate opportunity to litigate the matter in the earlier proceeding . . . ” (Emphasis added.) State v. Ellis, supra, 464-65 n.22, quoting D. Currie, “Res Judicata: The Neglected Defense,” 45 U. Chi. L. Rev. 317, 342 (1978).

       Although the appellate courts of this state have not yet addressed the precise issue presented in this case as to whether a default judgment may have collateral estoppel effect in a future suit, a recent Supreme Court case, which discussed the principles of res judicata generally, suggests that the court would, if faced with this precise issue, answer the question in the affirmative. State v. Ellis, 197 Conn. 436, 497 A.2d 974 (1985). In Ellis, the court stated that the term “actually litigated” should be considered broad enough to preclude a party from asserting a matter which “might” have been raised in a prior proceeding. Id., 464 n.21.

       Three policy considerations support the rule that to preclude an issue on collateral estoppel grounds, the issue must be determined by and necessary to a prior judgment: “(1) The parties’ attention and efforts are likely to be focused on points and matters that are necessary to the result. (2) The tribunal’s attention is likely to be focused on the grounds necessary for its decision. Findings that are not necessary partake of the nature of obiter dicta and the reasons for the distinction between dictum and holding in applying the rule of stare decisis also favor denying collateral estoppel effect to unnecessary findings. Both are unlikely to receive the full judicial consideration with respect either to premises or consequences that is given to the very grounds of decision. (3) Unnecessary findings are usually not subject to appellate review.” F. James & G. Hazard, Civil Procedure (2d Ed.) § 11.19.

       Because Connecticut does not have a compulsory counterclaim rule; see Practice Book §§ 116 and 168; Hansted cannot be precluded from bringing the present claim on the ground that he failed to bring a counterclaim in Candella for indemnification. See 1 Restatement (Second), Judgments §22. •"