author: SPEAR, J.

text:
    RICHARD GILLIS v. WHITE OAK CORPORATION ET AL.
    (AC 17446)
    Landau, Spear and Sullivan, Js.

      Argued March 31
    officially released August 4, 1998

      Scott Wilson Williams, for the appellants (named defendant et al.).

      Ross T. Lessack, for the appellee (plaintiff).
   Opinion

SPEAR, J.

The defendants, White Oak Corporation (White Oak) and its insurer, Liberty Mutual Insurance Company (Liberty), appeal from a decision of the workers’ compensation review board (board) affirming a finding and award that was rendered in favor of the plaintiff, Richard Gillis, by the workers’ compensation commissioner (commissioner). White Oak and Liberty claim that the commissioner improperly (1) disregarded the medical opinion of an expert who had examined the plaintiff pursuant to an order from the commissioner and (2) found that an injury that occurred during the plaintiffs employment with White Oak increased the plaintiffs permanent partial disability and caused the need for knee surgery in January, 1987, as well as future knee replacement surgery. We affirm the board’s decision.

The record reveals the following relevant facts and procedural history. The plaintiff, a construction laborer, has historically suffered from degenerative arthritis in both knees, most significantly in his right knee. On July 7,1981, the plaintiff sustained an injury to his right knee while working for Yonkers/D’Addario Joint Venture. On November 6, 1986, the plaintiff sustained a second injury to his right knee while working for White Oak. The plaintiff injured his right knee a third time on April 20, 1992, while working for Waterbury Construction Company. Formal hearings were subsequently held by the commissioner to determine (1) compensability of the November 6, 1986 right knee injury, (2) responsibility for both a 1987 knee surgery and part of the plaintiffs permanent partial disability and (3) responsibility for a recommendation that the plaintiff undergo surgery for a total right knee replacement. The record reveals medical testimony from several of the plaintiffs examining and treating physicians regarding the physical condition of and prognosis for the plaintiffs right knee after each of the 1981, 1986 and 1992 injuries. More specifically, there was conflicting medical testimony regarding the percentage of responsibility that was attributable to each of the 1981, 1986 and 1992 injuries with respect to the need for both the 1987 surgery and future knee replacement surgery. Pursuant to General Statutes § 31-294f (a), the commissioner ordered that the plaintiff submit to an examination by Robert L. Fisher, an orthopedic surgeon. Fisher stated that the plaintiffs November 6,1986 right knee injury was “relatively trivial,” did not accelerate by any significant amount of time the need for knee replacement surgery and that, in fact, the plaintiffs need for a total right knee replacement resulted from preexisting, degenerative arthritis. On October 4, 1994, the commissioner rendered a finding and award in favor of the plaintiff, ruling that the 1981 and 1986 injuries were “contributing causes to the aggravation of the underlying preexisting arthritic condition accelerating, albeit not by a substantial period of time, but accelerating nonetheless, the need for a total right knee replacement.” The commissioner further found that the 1986 injury was responsible for both the plaintiffs 1987 surgery and a percentage of the permanent partial disability of the plaintiffs right knee. Because the commissioner’s decision did not explain his apparent disregard of Fisher’s medical opinion, the board remanded the case for an articulation of the commissioner’s basis for disregarding Fisher’s opinion.

On remand, the commissioner rendered an amended articulation of his finding and award, wherein he stated that “[t]he November 6,1986 injury was a new, discrete, identifiable event, which was the agent of the exacerbation of [the plaintiffs] underlying arthritic condition and necessitated the need for the surgery on January 5, 1987.” Further, the commissioner specifically found that “while Dr. Fisher was of the opinion that the [plaintiffs] 1986 incident was relatively trivial and [the plaintiffs] work-related injuries were not responsible for accelerating, by any significant period of time, the need for the total knee replacement, [the plaintiffs] work-related injuries of 1981 and 1986 did, in fact, accelerate the May 17,1991 total knee replacement, thereby establishing the requisite medical and legal causal connection between the July 7, 1981 and November 6, 1986 work-related injuries and the need for a total knee replacement . . . (Emphasis in original.) White Oak and Liberty appealed to the board from that decision. The board subsequently affirmed the commissioner’s articulated finding and award. This appeal followed.

I

White Oak and Liberty first argue that the commissioner’s October 4, 1994 decision impermissibly disregarded Fisher’s medical opinion that the November, 1986 injury was relatively trivial and did not significantly accelerate the need for either the plaintiffs 1987 knee surgery or the contemplated knee replacement surgery. Specifically, White Oak and Liberty contend that in the amended finding and award the commissioner “rejected Dr. Fisher’s conclusion that the 1986 incident was not a causal factor by transforming the language used by Dr. Fisher—that the 1986 incident was relatively trivial and that it did not accelerate the need for the knee replacement by any significant period of time—into a subordinate factual basis for Ms legal conclusion that the 1986 incident was a proximate causal factor.” In their reply brief, however, WMte Oak and Liberty emphasize that their claim is not that the commissioner must, in all cases, follow the opinion of Ms examiner, but that Ms failure to articulate a reasonable basis for failing to follow Ms examiner’s opimon m tMs case is erroneous as a matter of law. We disagree.

White Oak and Liberty rely on Iannotti v. Amphenol/ Spectra-Strip, 13 Conn. Workers’ Comp. Rev. Op. 319 (1995), aff'd, 40 Conn. App. 918, 669 A.2d 637 (1996), for the proposition that “uMess there is a reasoned, articulated basis for rejectmg the opimon provided by the commissioner ordered examiner, with corresponding subordmate facts that support the rejection, a decision that does not mcorporate the conclusion of a commissioner ordered examiner is erroneous as a matter of law.” White Oak and Liberty maintain that the commissioner’s decision is erroneous as a matter of law, not because he failed to follow Fisher’s medical opmion, but because he failed to articulate Ms reasons for disregarding Fisher’s opimon. We are unpersuaded.

Prelimmarily, “[w]e accord great deference to the construction given to [workers’ compensation law] by the commissioner and the review [board] because they are both charged with its enforcement.” Crochiere v. Board of Education, 227 Conn. 333, 354, 630 A.2d 1027 (1993); Mulroy v. Becton Dickinson Co., 48 Conn. App. 774, 780, 712 A.2d 436 (1998). In keeping with tMs prmciple, we affirmed the board’s decision in Iannotti v. Amphenol/Spectra-Strip, supra, 40 Conn. App. 918. Iannotti stands for the proposition that “when a commissioner orders a medical examination, there is usually an expectation among the parties that said examination will provide strong guidance to the commissioner. Where a commissioner chooses not to adopt the diagnosis of the physician performing that examination, he or she should articulate the reasons behind his or her decision to disregard the examiner’s report.” Iannotti v. Amphenol/Spectra-Strip, supra, 13 Conn. Workers’ Comp. Rev. Op. 321. Our affirmance of that case, however, was based, in part, on the principle enunciated by the board that “[i]t is the trial commissioner’s function to assess the weight and credibility of medical reports and testimony. . . . The commissioner must determine as a factual matter the causal relationship between a claimant’s symptoms and a compensable injury. . . . Once the commissioner makes a factual finding, [we are] bound by that finding if there is evidence in the record to support it. . . . Similarly, the conclusions drawn by the commissioner from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” (Citations omitted; internal quotation marks omitted.) Id. We are also persuaded by the board’s previous determination that although “a commissioner should articulate the reasons behind his decision to disregard a § 31-294f examiner’s opinion, the ultimate decision is always with the commissioner . . . .” Nieves v. SCM Co., 3317 CRB-6-96-4 (July 9, 1997).

Our review of the record persuades us that the commissioner’s April 18,1996 amended and articulated finding and award stated reasonable determinations that were based, in part, on a multitude of conflicting medical opinions regarding causation issues with respect to both the plaintiffs 1987 surgery and his contemplated knee replacement surgery. Specifically, the amended and articulated finding and award referenced an opinion from Glen Taylor, one of the plaintiffs treating physicians, which stated that “any injury could potentially hasten the need for [knee replacement] surgery.” The articulated finding and award also referenced an opinion from Richard Matza, an orthopedic surgeon, that “the 1981 initiating injury caused a defect within the (knee) joint and the strain of the work . . . and the subsequent injuries, 1986,1987,1991, exacerbated or aggravated the condition.” (Emphasis added.)

Although White Oak and Liberty maintain that the commissioner disregarded Fisher’s medical opinion, we are not convinced that the commissioner did, in fact, disregard Fisher’s opinion. It was within the commissioner’s discretion to credit all, part or none of Fisher’s opinion, especially where several other medical opinions attributed at least some of the responsibility for the 1987 surgery and the future knee replacement surgery to the 1986 injury.

Our review of the record persuades us that the commissioner did, in fact, sufficiently articulate the basis for his decision that White Oak and Liberty, by virtue of the 1986 injury, were responsible for the plaintiffs 1987 surgery, a percentage of his permanent partial disability and a percentage of the future knee replacement surgery. Here, the various and conflicting medical opinions, which constituted the basis for the commissioner’s decision in October, 1994, were clarified and emphasized in the April, 1996 amended and articulated finding and award. Accordingly, the defendants’ claim fails.

II

White Oak and Liberty next claim that the underlying facts in this case do not support the commissioner’s determination that the 1986 injury was (1) solely responsible for the plaintiffs 1987 surgery, (2) partly responsible for the plaintiffs permanent partial disability of the right knee and (3) partly responsible for the plaintiffs need for future knee replacement surgery. We disagree.

We are aware of no authority that prohibits a commissioner from crediting portions of several conflicting medical opinions in an effort to reach a fair and reasonable result. Because we will not disturb the commissioner’s findings of fact where there is evidence in the record to support his decision; Iannotti v. Amphenol/Spectra-Strip, supra, 13 Conn. Workers’ Comp. Rev. Op. 321; we will not do so here, where there is ample medical evidence and opinion that implicates the 1986 injury as a causal factor in the plaintiffs 1987 surgery, permanent partial disability and future knee replacement surgery. Our review of the record reveals that the commissioner considered and credited portions of several medical opinions that were presented to him regarding causation as to the plaintiffs 1987 surgery, permanent partial disability and future knee replacement surgery. It was within his discretion to do so. Accordingly, this claim is without merit.

The decision of the compensation review board is affirmed.

In this opinion the other judges concurred.

       White Oak and Liberty are the only defendants involved in the appeal. In the underlying action, however, two of the plaintiffs previous employers, Yonkers/D’Addario Joint Venture and Waterbury Construction Company, were also defendants.

       At oral argument, there was discussion as to whether White Oak and Liberty raised their second claim, a sufficiency claim, before the compensation review board. There was further discussion concerning whether White Oak and Liberty asserted the lack of a final judgment as the basis for remanding the insufficiency claim to the board for a determination on that issue. In support of their assertion that the sufficiency claim was properly preserved and both raised before and briefed to the board, White Oak and Liberty directed this court’s attention to pages twenty-two and fifty-three of the record, wherein one of their reasons for appeal to the board stated: “The conclusion that White Oak and Liberty Mutual have responsibility for the [plaintiffs] knee condition is legally inconsistent with the subordinate facts found.” Our careful review of the record reveals that the board did, in fact, implicitly address White Oak and Liberty’s sufficiency claim by way of affirming the commissioner’s decision following the April 18, 1996 amended and articulated finding and award.

       This ir\jmy resulted in a 7.5 percent permanent partial disability of the plaintiffs right knee, as evidenced by a voluntary agreement between the parties on October 14, 1982.

       While unloading bales of hay from a truck, the plaintiff slipped and his right leg twisted when it caught on the truck’s ladder.

       In April, 1992, the plaintiff, while loading blocks, fell to the ground on his right knee from scaffolding that was several feet above the ground.

       Our review of the record reveals that Glen Taylor, a physician, stated that “the 1981 injury exacerbated or aggravated the [plaintiffs] underlying preexisting arthritic condition . . . and [the plaintiffs] 1987 symptoms and the 1987 surgery are the result of the preexisting arthritis and not to [the] 1981 injury.” Richard Matza, an orthopedic surgeon, stated that “the 1981 initiating injury caused a defect within the (knee) joint and . . . the subsequent ipjuries, 1986, 1987, 1991, exacerbated or aggravated the condition.” Matza further stated that the plaintiff had a 75 percent permanent partial disability of the right knee, 50 percent of which predated the April, 1992 injury and 25 percent of which was attributable to the 1992 injury. Kevin Lynch, an orthopedic surgeon, stated that the plaintiff needed a total right knee replacement regardless of the 1992 injury. Lynch assigned a 47 percent permanent partial disability to the plaintiffs right knee, with 5 percent attributable to the 1992 injury. Robert L. Fisher, an orthopedic surgeon who was ordered by the commissioner to examine the plaintiff, stated that the 1986 injury was relatively trivial, did not accelerate by any significant period of time the need for a total right knee replacement and assigned 40 percent permanent partial disability of the right knee, with 5 percent attributable to 1he 1981 injury, 5 percent attributable to the 1992 injury and 30 percent attributable to the plaintiffs preexisting degenerative arthritis.

       General Statutes § 31-294f (a) provides in relevant part that a claimant “shall submit himself to examination by a reputable practicing physician or surgeon, at any time while claiming or receiving compensation, upon the reasonable request of the employer or at the direction of the commissioner. . . .”

       At oral argument, White Oak and Liberty maintained that the commissioner, in adopting Fisher’s opinion, “turned it on its head” by misinterpreting Fisher’s testimony that the November, 1986 injury was “relatively trivial” and “did not accelerate [by] any significant period of time the need for the total knee replacement” to conclude that the 1986 incident was a cause, albeit not a major cause, of the plaintiffs need for a future knee replacement surgery.

       In his October 4, 1994 finding and award, the commissioner referred to the plaintiffs “contemplated right knee total replacement.” We note, however, that in his 1996 amended and articulated finding and award the commissioner referred to a “May 17, 1991 total knee replacement.” There is no evidence before us that clarifies this factual discrepancy, which was neither raised by the parties in their briefs nor addressed at oral argument. There was, however, evidence in the record that on May 17, 1991, Matza recommended that the plaintiff “have a total knee replacement on his right knee . . . sometime in the future.”

       The commissioner determined that the plaintiff had a 47 percent permanent partial disability of the right knee, of which 7.5 percent was attributable to the 1981 injury, 17.5 percent was attributable to the 1986 injury, 5 percent was attributable to the 1992 injury and an additional 17 percent was attributable equally to each of the 1981, 1986 and 1992 injuries.

       This case was not decided by the board until April, 1995. The commissioner, therefore, did not have the benefit of the board’s guidance on this issue when he drafted the October, 1994 finding and award.

       See footnote 6.

       See footnote 6.


source: Caselaw Access Project

author: DUPONT, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. FRANCISCO TAVERAS
    (AC 16729)
    O’Connell, C. J., and Foti and Dupont, Js.

      Argued May 27
    officially released August 4, 1998

      David M. Shein, with whom, on the brief, was Frank Edward Baby cos, for the appellant (defendant).

      Eileen McCarthy Geel, deputy assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and Margaret E. Kelley, assistant state’s attorney, for the appellee (state).
   Opinion

DUPONT, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of assault in the third degree in violation of General Statutes § 53a-61 (a) (l). The defendant claims that the trial court improperly (1) denied him a fair trial because the investigating officer allegedly gave his solicited opinion that the defendant was guilty, the state’s attorney reiterated the officer’s opinion and the trial court refused to give the jury a curative instruction, (2) excluded from evidence the jacket that the defendant wore at the time of the incident and (3) denied the defendant’s request for a mistrial based on the statements made by a state’s witness, regarding prior misconduct of the defendant, in violation of the court’s order precluding such comments. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The victim, Gloria Taveras, is the defendant’s former wife and the mother of their three children. The victim lived with her mother and the three children in the former marital home. By the terms of the Taveras’ divorce agreement, the victim had physical custody of the children, and the defendant had unsupervised visitation every other week from 9 a.m. on Saturday to 6 p.m. on Sunday. By mutual agreement, however, the defendant often began his visitation with the children on Friday evenings.

On Friday, September 15, 1995, the defendant and the victim spoke by telephone and argued over the defendant’s visit with the children that weekend. The defendant did not come to pick up his children on Friday, September 15, or on Saturday, September 16. On Sunday, September 17, shortly after the victim arrived home from work, the defendant arrived at her house. After the defendant spoke with one of his children, the victim came to the door and asked the defendant why he was there. An argument ensued between the defendant and the victim. When the victim would not allow the defendant to enter her home, he grabbed her by the hair and attempted to pull her outside. The defendant grabbed her by the arm, leaving scratches and bruises on her upper left arm. At one point during the altercation, the victim tore the defendant’s jacket.

At the time of the altercation, the victim’s mother was at home in her basement apartment. The victim’s sister, Mildred Bauza, was visiting her mother, and Milton Quiles, an acquaintance of the family, was also in the basement apartment repairing the plumbing. Upon hearing the commotion at the front door, Bauza and Quiles came upstairs. Both Bauza and Quiles testified that when they arrived upstairs the defendant was trying to pull the victim out of the house while the victim resisted. Quiles intervened and was able to separate the victim and the defendant. The defendant then went to his car and telephoned the police to report that he had been attacked by the victim. Bauza also called the police to report the incident.

Officer Richard Golas of the Bridgeport police department arrived within ten to fifteen minutes. Golas testified that when he arrived at the victim’s house he first spoke with the defendant who was outside of the house. Golas further testified that the defendant told him that he and his former wife had argued over his custody rights, and that she had punched him and ripped his jacket. Golas observed that the defendant’s jacket was ripped, but could not testify as to the extent of the damage. Golas also testified that he could not observe any injuries on the defendant.

Golas next went into the house to speak to the victim and the two witnesses. Golas observed ambulance personnel tending to the victim, who was six months pregnant and experiencing labor pains. Golas also observed that the victim looked upset, had scratches and bruises, and her hair was disheveled. Golas then interviewed Bauza and Quiles, the two witnesses to the incident, and interviewed the defendant again regarding what had transpired. After speaking with all of the parties present and observing the physical conditions of both the defendant and the victim, Golas surmised that the defendant became angry with the victim and “tried to take her out, pulling her physically out of her house,” and concluded that there was probable cause to arrest the defendant for third degree assault.

I

The defendant first claims that his constitutional right to due process, as guaranteed by the fifth and fourteenth amendments to the United States constitution, and article first, § 8, of the Connecticut constitution, was violated by the prejudicial testimony of the investigating officer, Golas. The defendant argues that Golas was permitted to give his expert legal opinion on the ultimate issue of the defendant’s guilt and that Golas’ testimony was improperly emphasized by the prosecution. He further claims that the trial court should have given a curative instruction to the jury.

A

For the first time on appeal, the defendant objects to a portion of Golas’ testimony in which the officer purportedly gave his opinion on the ultimate issue of the defendant’s guilt or innocence. The portion of Golas’ testimony to which the defendant now objects is as follows:

“Q. Okay, Now this is your normal course of your investigation when you arrive at a domestic call? Do you interview the parties?
“A. Sure, yes.
“Q. And then what do you do after you interview the parties? What do you do with the information you’ve received?
“A. Well, you weigh the information. I saw the injury on the victim . . . and I didn’t see any injury on the defendant, so being a domestic violence call in the state of Connecticut, if there’s any kind of an injury or an assault, you have to determine if there’s going to be an arrest made.
“Q. Okay.
“A. Weighing my options, I did decide to arrest the defendant for assault third, domestic violence.
“Q. Now, aside from this particular case, is it your procedure when you go to a call like this, that sometimes you may arrest more than one party?
“A. Yes, depending on the circumstances, you might arrest both parties, you might arrest whoever’s at fault, whoever’s in the wrong.
“Q. Okay. And you made a determination that day—■
“A. Correct, that the defendant was at fault, from weighing my information I was given, yes.”

Because the defendant failed to object to Golas’ testimony at trial, we must determine whether review of this issue is warranted under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). In Golding, our Supreme Court held that “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” Id., 239-40. “ ‘The first two questions relate to whether a defendant’s claim is reviewable, and the last two relate to the substance of the actual review.’ State v. Newton, 8 Conn. App. 528, 531, 513 A.2d 1261 (1986).” State v. Shinn, 47 Conn. App. 401, 409, 704 A.2d 816 (1997), cert. denied, 244 Conn. 913, 914, 713 A.2d 832, 833 (1998).

“The improper admission of opinion testimony that answers a question that a jury should have resolved for itself is not of constitutional significance and is a type of evidentiary error. State v. Vilalastra, [207 Conn. 35, 46, 540 A.2d 42 (1988)].” State v. Wright, 47 Conn. App. 559, 563, 707 A.2d 295 (1997), cert. denied, 244 Conn. 917, 714 A.2d 8 (1998). Because the defendant’s claim regarding Golas’ testimony is not of constitutional magnitude, we cannot afford it Golding review.

We next consider whether this issue is entitled to plain error review. “Generally, where a claimed error of a nonconstitutional nature is not brought to the attention of the trial court, appellate review of that claim is available only if it constitutes plain error. ... To prevail under the plain error doctrine, the defendant must demonstrate that the claimed error is both so clear and so harmful that a failure to reverse the judgment would result in manifest injustice. . . . This doctrine is not implicated and review of the claimed error is not undertaken unless the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. . . . Furthermore, even if the error is so apparent and review is afforded, the defendant cannot prevail on the basis of an error that lacks constitutional dimension unless he demonstrates that it likely affected the result of the trial.” (Internal quotation marks omitted.) State v. Connelly, 46 Conn. App. 486, 511, 700 A.2d 694 (1997), cert. denied, 244 Conn. 907, 908, 713 A.2d 829 (1998); see also Kolich v. Shugrue, 198 Conn. 322, 326, 502 A.2d 918 (1986).

Plain error review is not warranted here. In this case, Golas testified not as an expert witness, but instead as a fact witness with firsthand knowledge of the incident in question. Furthermore, Golas did not in fact testify as to the ultimate issue of the defendant’s guilt or innocence. Instead, he testified as to his personal observations at the scene, his method of investigation, his statutory obligations in domestic cases and the fact that it was his ultimate conclusion that there was sufficient evidence to determine that the defendant was “at fault” in the incident and was the proper party to be arrested. Golas did not testify that in his opinion, the defendant was guilfy of third degree assault. We conclude that it was not improper for the trial court to admit Golas’ testimony.

B

The defendant next claims that the prosecutor’s closing arguments, permitted over the defendant’s objection, improperly emphasized Golas’ testimony. The defendant claims that he was prejudiced by the prosecutor’s impropriety in the following respects: (1) the state asked the jury to consider matters that it should not have considered; (2) the prosecutor improperly bolstered Golas’ testimony; (3) the prosecutor expressed her personal opinion of Golas’ credibility; and (4) the prosecutor improperly implied that the jury should reach the same conclusions as Golas.

The trial court has wide discretion in ruling on evidentiary matters, and its rulings will be reversed only if there has been a clear abuse of discretion or an injustice has been done. State v. Zollo, 36 Conn. App. 718, 723, 654 A.2d 359, cert. denied, 234 Conn. 906, 660 A.2d 859 (1995). “[Cjounsel may comment upon facts properly in evidence and upon reasonable inferences drawn therefrom.” State v. Kinsey, 173 Conn. 344, 348, 377 A.2d 1095 (1977). Since we have determined that Golas’ testimony was properly admitted by the trial court, the prosecutor’s closing arguments will not be deemed improper unless they distorted or misstated Golas’ testimony in some way.

The prosecutor in this case merely argued to the jury facts that were properly admitted into evidence. She restated Golas’ testimony with respect to his investigation and the facts that he concluded supported the defendant’s arrest. The prosecutor did not argue that Golas had determined that the defendant was guilty, nor did she indicate that Golas’ testimony should be believed by the jury. Instead, the prosecutor’s closing arguments accurately reflected Golas’ testimony, which testimony was properly admitted into evidence by the trial court and, therefore, the trial court properly overruled the defendant’s objection.

C

Finally, since we conclude that Golas’ testimony was properly admitted by the trial court and that the prosecutor properly commented on admissible evidence, the defendant’s claim that the trial court improperly refused to deliver a curative instruction is to no avail. The trial court has great discretion in deciding whether to give a curative instruction. State v. Pouncey, 241 Conn. 802, 814-15,699 A.2d 901 (1997). The burden is on the defendant to prove that the trial court’s refusal to deliver a curative instruction so far exceeded the boundaries of the court’s discretion that he was denied a fair trial. See State v. Richardson, 214 Conn. 752, 759-60, 574 A.2d 182 (1990).

In this case, it is evident that the trial court evaluated the circumstances of the case, determined that the prosecutor’s closing remarks were appropriate comment on the evidence and were not prejudicial and, accordingly, determined that a curative instruction was not warranted. We agree with that conclusion.

II

The defendant next claims that the trial court improperly excluded from evidence the jacket that he wore at the time of the incident. Additional facts are necessary to the resolution of this claim. The defendant testified that on the day of the incident in question, he was wearing a jacket and that during a heated argument the victim tore the jacket so that “the whole inside of the jacket, which has a lining, and the cloth itself, was ripped and torn completely.” Golas and Bauza also testified that the defendant’s jacket was tom during the argument, although neither testified as to the extent of the tear. The victim denied that she ripped the defendant’s jacket. The defendant then testified that the lining of the jacket had been repaired by a tailor since the incident, but that the mending on the jacket would show where the damage had been. The defendant moved to admit the jacket into evidence to show the extent of the damage made by the victim and to refute the victim’s testimony that she did not tear- the jacket. The prosecution objected to the admission of the jacket, arguing that the repaired jacket was no longer a fair and accurate representation of the garment at the time of the incident and, further, that there was a problem with the chain of custody because the j acket had been out of the defendant’s possession while it was being repaired. The court mled that the jacket was inadmissible because it had undergone material alterations, was substantially changed, and was no longer a fair and accurate representation of the condition of the jacket at the time of the incident. We agree.

“When proffered evidence is challenged on the ground of material alteration, the trial court must satisfy itself in reasonable probability that the substance has not been changed in important respects. The trial court, in making its determination, must consider the nature of the article, the circumstances surrounding its preservation and custody and the likelihood of intermeddlers tampering with it. In the absence of a clear abuse of discretion the ruling of the trial court [considering] the evidence must stand.” State v. Asherman, 193 Conn. 695, 722, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985).

Given that the jacket in this case was being offered to show the extent of the tears made in the material, the trial court properly concluded that the repair of the jacket constituted a substantial material alteration and that the jacket, therefore, no longer accurately represented what it purported to show. Further, the exclusion of the jacket did not prejudice the defendant because he was able to present evidence that the jacket had been ripped in the incident through the testimony of Golas and Bauza. In light of this evidence and the other factors involved, the trial court did not abuse its discretion in refusing to admit the repaired jacket.

III

The defendant finally claims that the trial court improperly denied his request for a mistrial based on the statements made by the state’s witness regarding prior misconduct of the defendant in violation of the court’s order precluding such comments. Prior to trial, the defendant filed a motion in limine requesting that the court enter an order prohibiting police officers who testify for the state from mentioning that the defendant was known to them from his prior arrests or convictions. The court ordered “that no questions about prior arrests are to be asked by the state, and the witnesses and the officers are to be instructed not to volunteer such information.”

The defendant specifically cites four examples where he claims that the court’s pretrial order was violated by the victim, who testified for the state. In the first instance, after the victim testified on direct examination, without objection, that her marriage to the defendant was “not that great,” the state asked her, “How would you describe it?” The defendant objected to this inquiry and the question was withdrawn.

The next two instances that the defendant cites as violative of the court’s order involved responses by the victim to the defendant’s own cross-examination of her. During cross-examination, the defendant asked the victim whether, on the day of the incident, there was a protective order in place. In her response, which was subsequently stricken, the victim stated that protective orders had been entered on prior unrelated occasions. Later during cross-examination, in response to the question of whether her children engaged in visitation with any third party, the victim stated that “his family tries, the only time they really come up is when he ends up arrested for any other thing.”

The fourth instance cited by the defendant occurred on the state’s redirect examination of the victim. On redirect, the state asked the victim, “Before when you were testifying, describing the incident that day, the pushing and shoving that was going on and [the defense attorney] asked you, isn’t it true that he had done that before, that the defendant had done that before, what did you mean when you said yes, he had done that before?” In response, the victim stated, “He had come into the house before, broken into the back door and came into the house, he destroyed my car, he destroyed everything inside the house, wanting to beat me up, threatened me with a gun, things like that.”

The defendant objected to the victim’s response on the ground of relevancy and, after removing the jury and hearing argument from counsel, the trial court sustained the objection and ordered that the victim’s response be stricken.

After this ruling, the defendant moved for a mistrial arguing that the jury was prejudiced beyond any curative instruction. When the jury returned to the courtroom, the trial court issued the following instruction: “Thank you. You may be seated. Ladies and gentlemen, I am sustaining the objection to the last question and, therefore, any answer that was given to the question ‘had he done that before’ and the responses to that question, are to be—are stricken. They’re stricken from the record, and they’re not to be considered by you in your deliberations as far as the evidence in this case. That is not evidence and it is not part of your consideration. Thank you.”

“ ‘While the remedy of mistrial is permitted under the rules of practice it is not favored. [It] should be granted only as a result of some occurrence upon the trial of such a character that it is apparent to the court that because of it a party cannot have a fair trial . . . and the whole proceedings are vitiated. ... If curative action can obviate the prejudice, the drastic remedy of mistrial should be avoided. . . . State v. Wooten, [227 Conn. 677, 693-94, 631 A.2d 271 (1993]). On appeal, we hesitate to disturb a decision not to declare a mistrial. The trial judge is the arbiter of the many circumstances which may arise during the trial in which his function is to assure a fair and just outcome. State v. Rodriguez, 210 Conn. 315, 333, 554 A.2d 1080 (1989); State v. Bausman, 162 Conn. 308, 312, 294 A.2d 312 (1972).’ State v. Bowman, 46 Conn. App. 131, 136-37, 698 A.2d 908 (1997).” State v. Henderson, 47 Conn. App. 542, 557, 706 A.2d 480, cert. denied, 244 Conn. 908, 713 A.2d 829 (1998). “On appeal, the defendant bears the burden of establishing that there was irreparable prejudice to the defendant’s case such that it denied him a fair trial.” State v. Rasmussen, 225 Conn. 55, 87, 621 A.2d 728 (1993).

“Due process seeks to assure a defendant a fair trial, not a perfect one.” State v. Kurvin, 186 Conn. 555, 565, 442 A.2d 1327 (1982). Here, while the testimony of the victim may have violated the court’s pretrial order, the defendant has failed to establish that given the court’s cautionary instruction to the jury, and when taken in the context of the entire trial, he was prejudiced by the violation of the court order. We therefore conclude that the trial court did not abuse its discretion in denying the defendant’s motion for a mistrial.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statute § 53a-61 provides in relevant part: “Assault in the third degree: Class A misdemeanor, (a) A person is guilty of assault in the third degree when: (1) With intent to cause physical injury to another person, he causes such injury to such person or to a third person . . .

       Golas was apparently referring to General Statutes § 46b-38b (a), which provides in relevantpart: “Whenever apeace officer determines upon speedy information that a family violence crime . . . has been committed ... he shall arrest the person or persons suspected of its commission and charge such person or persons with the appropriate crime. The decision to arrest and charge shall not (1) be dependent on the specific consent of the victim, (2) consider the relationship of the parties or (3) be based solely on a request by the victim.”

       Practice Book (1998 Rev.) § 60-5, formerly § 4061, provides in relevant part: “The court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The court may in the interests of justice notice plain error not brought to the attention of the trial court. . .
      The state addressed the issue of plain error review in its brief, and the issue was raised during oral argument.

       The prosecutor’s full closing argument regarding Golas’ testimony is as follows: “I’d also like to touch a little bit on the testimony by Officer Golas. He was the officer that got the call. He indicated it came over the dispatch as a domestic call with iiyuries. He arrived on the scene. He immediately— the defendant was there, and as testimony indicates from, I believe Mildred Bauza and the defendant, the defendant had called the police. And, the police officer testified when he arrived at the scene, he immediately—he went over to the defendant . . . and spoke to him. After speaking to the defendant, Officer Golas then spoke to the other parties. He spoke to the victim, Gloria Taveras. He spoke about what he observed. He spoke that she was very upset, her hair was messed up, he found a hair clip outside the doorway outside of the house, not inside, that she seemed very upset and that he also observed scrapes on her arm. Officer Golas, after talking to the victim, also talked to Mildred Bauza, he also talked to Milton Quiles. And, then in an effort to thoroughly investigate, he went back to the defendant. He talked to the defendant a second time. I think that’s very significant, and I think you will find it’s very significant because, as the officer testified, many times in domestic violence cases [objection asserted by defense counsel and overruled by the court] he testified, when he goes out on domestic violence calls, he has to make a determination, he interviews the parties. Here he certainly interviewed both sides to the argument. He interviewed the two independent witnesses. He—I believe that what you will recall that what Officer Golas said, he did not see the defendant as the victim. He looked—he saw that the defendant had a torn jacket, but he observed the scrapes on the victim, he knew that she was pregnant, six months pregnant. He testified he observed some rips on the defendant’s jacket. He did not observe any iiyuries to the defendant’s wrists. He did not observe any blood on the defendant’s wrists, as the defendant testified to. Officer Golas testified that in assessing this and making a determination, he talked to all of the parties. He did his investigation, and based upon his investigation he made a determination, and that determination was that the defendant was the party to be arrested for assault in the third degree.” (Emphasis added.)


text:
    PRUDENTIAL PROPERTY AND CASUALTY INSURANCE COMPANY v. JUDITH PEREZ-HENDERSON
    (AC 16965)
    Foti, Landau and Spear, Js.
    Argued March 30
    officially released August 4, 1998

      F. Herbert Gruendel, for the appellant (defendant).

      Robert G. Oliver, with whom, on the brief, was Carolyn P. Gould, for the appellee (plaintiff).
   Opinion

SPEAR, J.

In this underinsured motorist case, the defendant, Judith Perez-Henderson, appeals from the judgment of the trial court granting the plaintiffs application to vacate the arbitrator’s award and denying the defendant’s application to confirm the award. She claims that the trial court improperly (1) reviewed de novo the issue of when the statute of limitations commenced and (2) ruled that the six year statute of limitations began to run on the date of the accident. We reverse the judgment of the trial court.

On October 20, 1983, the defendant, then sixteen years old, suffered permanent injuries as a result of an automobile accident. At the time of the accident, the defendant was insured for unmsured-underinsured motorist protection through a policy owned by her father. The policy contained an arbitration clause providing that if an agreement could not be reached, the matter would be submitted to arbitration. The provision did not contain a limitation on the time within which to bring a claim, but stated that the plaintiff would not be obligated to pay an underinsured motorist claim until all underlying insurance was exhausted.

The defendant’s suit against the driver of the automobile was settled on March 23, 1987, for $20,000, the full amount of the tortfeasor’s liability coverage. On July 21,1992, the defendant filed an application for an order to proceed with arbitration. The trial court granted the application, and the arbitrators awarded damages to the defendant in the amount of $60,567.

The plaintiff filed an application to vacate the arbitration award, and the defendant filed a counterclaim to confirm the award. The trial court granted the plaintiffs application to vacate and rejected the defendant’s counterclaim for confirmation of the arbitration award. This appeal followed.

I

The defendant claims that the trial court improperly ruled that the date on which the statute of limitations commenced was an issue to be reviewed de novo. Specifically, she claims that the trial court improperly found that the arbitration proceedings were compulsory and afforded de novo review to the statute of limitations claim. We agree with the trial court that its review was de novo, but for a different reason.

It is undisputed that the parties were required by General Statutes § 38a-336 to submit issues of coverage to arbitration. It is also undisputed that the defendant’s insurance policy did not contain a limitation period in which a claim could be made. The trial court ruled that the commencement date of the statute of limitations was a coverage issue to be decided by the court. In Wynn v. Metropolitan Property & Casualty Ins. Co., 30 Conn. App. 803, 805-807, 623 A.2d 66 (1993), aff'd, 228 Conn. 436, 635 A.2d 814 (1994), we held that the applicability of the statute of limitations to the plaintiffs underinsured motorist claim was a question of arbitrability rather than a question of coverage. Where, as here, the contract does not commit the question of arbitrability to the arbitrators, it is a threshold issue to be decided by the court. Id., 807.

“The distinctions between coverage issues and arbitrability issues have not always been readily apparent. Although no bright line rule has emerged, the cases demonstrate that the hallmark of a coverage issue is that it necessarily involves an analysis of the scope of coverage as provided by the terms of the policy. Consequently, a coverage issue is one that is governed wholly by the policy language ... or involves the interpretation of both statutory and policy language . . . or otherwise implicates the scope of coverage afforded by the terms of the policy. . . .

“An issue of arbitrability, by comparison, is one that addresses the arbitrability of the claim and is capable of being decided by the court as a matter of law irrespective of the terms of the policy .... [0]ur Supreme Court recognized this distinction in holding that the question of whether the statutory duty to arbitrate coverage issues applied to motorcycle insurance policies was a threshold legal issue for the court to decide. The court explained that ‘[t]his appeal is distinguishable from the [coverage] cases cited in that here there is a dispute as to whether the dictates of [the statute] apply to the policies in question, not just a dispute over the scope of coverage mandated by the [statute].’ ” (Citations omitted.) Id., 806-807.

As in Wynn, in this case “there is no dispute over the scope of coverage provided by the policy. The only question is whether the plaintiff is entitled to compel arbitration. That is precisely the question the trial court is charged with deciding. ... In making that determination, the trial court did not need to interpret the policy language as the policy contained no time limitation for demanding arbitration; the court needed only to apply the statutory limitation period.” (Citations omitted.) Id., 807.

Here, the applicability of the statute of limitations arose in an application to vacate the award rather than as a threshold issue for the court to decide prior to arbitration. We conclude that de novo review by the court is proper, nevertheless, pursuant to White v. Kampner, 229 Conn. 465, 641 A.2d 1381 (1994). “[T]here are two procedural routes by which a party may preserve the issue of arbitrability of a particular dispute for judicial determination. First, a party may refuse to submit to arbitration at the outset and instead compel a judicial determination of the issue of arbitrability. . . . Alternatively, threshold questions of arbitrability may properly be committed to the arbitrators themselves for determination under the terms of the contract, along with the merits of the underlying dispute. ... In such cases a court, on a motion to vacate, may properly entertain a challenge to an award alleging disregard of the limits in the parties’ agreement with respect to arbitration.” (Citations omitted; internal quotation marks omitted.) Id., 476.

The plaintiff took the alternative route of challenging the application of the statute of limitations, i.e. arbitrability, by way of an application to vacate. The issue of whether the defendant’s claim was barred by the six year statute of limitations that governs contract actions was raised before the arbitrators. In a majority decision, the arbitrators (one arbitrator dissenting) found that the claim was timely made. Because the statute of limitations claim presented a question of arbitrability, the trial court’s de novo review was proper.

II

The defendant next claims that the trial court improperly determined that the statute of limitations period began to run on the date of the accident. We agree.

The following facts are undisputed. The defendant was injured in an accident on October 20, 1983. The tortfeasor’s insurance policy was exhausted on March 31,1987. The defendant filed an application for an order to proceed with arbitration on July 21,1992. The determinative question before us is, therefore, whether the plaintiffs cause of action under the insurance policy “accrued” on October 20,1983, the date of the accident, or on March 31, 1987, the date that the tortfeasor’s policy was exhausted.

General Statutes § 52-576 (a) provides in relevant part that “[n]o action ... on any contract in writing, shall be brought but within six years after the right of action accrues . . . .” “Applied to a cause of action, the term to accrue means to arrive; to commence; to come into existence; to become a present enforceable demand. Eising v. Andrews, 66 Conn. 58, 64, 33 A. 585 (1895). D’Occhio v. Connecticut Real Estate Commission, 189 Conn. 162, 182, 455 A.2d 833 (1983).” (Internal quotation marks omitted.) Balboa Ins. Co. v. Zaleski, 12 Conn. App. 529, 533-34, 532 A.2d 973, cert. denied, 206 Conn. 802, 535 A.2d 1315 (1987). “ ‘While the statute of limitations normally begins to run immediately upon the accrual of the cause of action, some difficulty may arise in determining when the cause or right of action is considered as having accrued. The true test is to establish the time when the plaintiff first could have successfully maintained an action.’ Gaylord Hospital v. Massaro, 5 Conn. App. 465, 467, 499 A.2d 1162 (1985).” Wynn v. Metropolitan Property & Casualty Ins. Co., supra, 30 Conn. App. 807-808.

The plaintiff relies on Bayusik v. Nationwide Mutual Ins. Co., 233 Conn. 474, 659 A.2d 1188 (1995), in support of its claim that the six year statute of limitations begins to run on the date of the accident. This reliance is misplaced. It is true that the Bayusik court said that because the six year statute of limitations on contract actions applied to the plaintiffs underinsured motorist claim, “the plaintiff was required to have filed his claim for arbitration within six years from the date of the accident.” Id., 485-86. This statement was made in the context of construing Public Acts 1993, No. 93-77, § 2 (e), now codified as General Statutes § 38a-336 (g). That statute provides in relevant part that “[n]o insurance company . . . may limit the time within which . . . any demand for arbitration on a claim may be made on the . . . underinsured motorist provisions of an automobile liability insurance policy to a period of less than three years from the date of accident . . . .”

Here, the plaintiff concedes that this statute does not apply because the plaintiff did not avail itself of the right to insert such a time limit in the contract. In Bayusik, the court invalidated the two year time limit contained in the contract at issue pursuant to P.A. 93-77 and reasoned that the six year statute of limitations period had to be applied. The statute permitted insurers to set up a statute of limitations within the policy that commenced to run from the date of the accident. The court in Bayusik, after invalidating the stated two year time limit, simply applied the six year statute of limitations from the agreed upon date, i.e., the date of the accident.

In the present case, the arbitration clause contained in the defendant’s insurance policy did not contain a limitation on the time within which to bring a claim, but stated that the provider would not be obligated to pay an underinsured motorist claim until all underlying insurance was exhausted. The defendant could not have maintained an action against the plaintiff, therefore, until all underlying insurance was exhausted. This did not occur until March 31, 1987. Therefore, the defendant’s application to compel arbitration was timely filed on July 21,1992. The trial court improperly determined that the statute of limitations began to run on the date of the accident and, therefore, improperly granted the plaintiffs application to vacate the arbitration award on the grounds that it was time barred.

The judgment is reversed and the case is remanded with direction to render judgment denying the application to vacate the award and for the defendant on her counterclaim for confirmation of the award.

In this opinion the other judges concurred.

       The trial court did not expressly state that arbitration was compulsory. Such a conclusion necessarily follows from the trial court’s ruling that the commencement date of the statute of limitations is a coverage issue subject to de novo review because General Statutes § 38a-336 (c) provides for binding arbitration of coverage issues. Issues subject to compulsory arbitration can be reviewed de novo by the court. American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 187-91, 530 A.2d 171 (1987).

       General Statutes § 38a-336 (c), formerly § 38-175c (a)(1)(B), provides in relevant part: “Each automobile liability insurance policy issued on or after October 1, 1971, which contains a provision for binding arbitration shall include a provision for final determination of insurance coverage in such arbitration proceeding. . . .”

       The arbitration clause provided in relevant part: “The actual amount we’ll pay under this part will be determined by agreement between the injured person and us. If no agreement can be reached, upon written demand of either party, the matter will be submitted for arbitration. . . . Both we and the injured person agree to be bound by the decision of the arbitrators.”

       The defendant claims that the plaintiff waived any arbitrability challenge by failing to appear in court to respond to the defendant’s application to compel arbitration. This claim was not presented to the trial court. Therefore, we will not review it. Practice Book (1998 Rev.) § 60-5, formerly § 4061.

       It is important to note that in Bayusik, our Supreme Court did not have to decide the question of whether the statute of limitations period began to run on the date of the accident or on the date of the exhaustion of the insurance policy. First, the insurance contract provided that the statute of limitations period began to run on the date of the accident. Second, the plaintiff filed her underinsured motorist claims within six years of both the date of the accident and the date of exhaustion of the insurance policy. Bayusik v. Nationwide Mutual Ins. Co., supra, 233 Conn. 480.


author: PER CURIAM.

text:
    STATE OF CONNECTICUT v. GLENN SPROULS
    (AC 17146)
    Landau, Hennessy and Shea, Js.
    Argued June 9
    officially released August 4, 1998

      Francis L. O’Reilly, special public defender, for the appellant (defendant).

      Toni M. Smith-Rosario, assistant state’s attorney, with whom were John T. Redway, state’s attorney, Barbara Hoffman, assistant state’s attorney, and, on the brief, Mary H. Lesser, assistant state’s attorney, for the appellee (state).
   Opinion

PER CURIAM.

The defendant, Glenn Sprouls, appeals from the judgment, rendered following a jury verdict, convicting him of operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes § 14-227a (a) (l). He also appeals from that portion of the judgment, rendered by the court after a trial without a jury, convicting him of being a fourth offender under General Statutes § 14-227a (h) (4) as a result of three prior convictions for operating a motor vehicle while under the influence of intoxicating liquor, as alleged in part B of the information. The only issue raised by the defendant is whether the evidence was sufficient to prove beyond a reasonable doubt that he was guilty of violating §§ 14-227a (a) (1) and 14-227a 00 (4).

We have reviewed the evidence as summarized in the briefs relating to the offenses of which the defendant was convicted and have concluded that it adequately supports the verdict of the jury and the finding of the court. The arresting officer, who had training and experience in cases involving the operation of motor vehicles while under the influence of intoxicating liquor, testified that the defendant’s vehicle crossed the center line into the lane for oncoming traffic several times as the defendant drove to his home. He did not stop in response to the emergency lights and siren on the police cruiser following him. There was an odor of alcohol emanating from the defendant when he emerged from his vehicle at his house, where the officer arrested him. His eyes were glassy and bloodshot, and his speech was slurred and confusing. He failed the sobriety tests conducted by the officer at the state police barracks and refused the breath test that was requested. Another state police officer observed the defendant at the barracks and confirmed the testimony of the arresting officer regarding the defendant’s intoxicated condition and his refusal of the breath test.

To prove that the defendant was a four time offender in violation of § 14-227a (h) (4), the state introduced certified copies of the judgments evidencing his three previous convictions for violating § 14-227a (a) (1). The arresting officers in each of the three previous cases identified the defendant as the person they had arrested on the dates shown on the copies of the judgments.

The judgment is affirmed.

       The jury also found the defendant guilty of reckless driving in violation of General Statutes § 14-222, but he has not challenged his conviction of that offense.

       General Statutes § 14-227a (a) provides in relevant part: “No person shall operate a motor vehicle while under the influence of intoxicating liquor or any drug or both. ...”

       General Statutes § 14-227a (h) provides in relevant part: “Any person who violates any provision of subsection (a) of this section shall ... (4) for conviction of a fourth and subsequent violation within ten years after a prior conviction for the same offense, be fined not less than two thousand dollars nor more than eight thousand dollars and imprisoned not more than three years, one year of which may not be suspended or reduced in any manner, and have his motor vehicle operator’s license or nonresident operating privilege permanently revoked upon such fourth offense. . . .”


text:
    SARAH M. S. v. DEPARTMENT OF CHILDREN AND FAMILIES
    (AC 17652)
    Spear, Kulawiz and Dupont, Js.
    Argued June 1
    officially released August 4, 1998

      Tracy Arthur Marlow, with whom, on the brief, was John A. Williams, for the appellant (plaintiff).

      Richard F. Webb, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Kimberly P. Massicotte, assistant attorney general, for the appellee (defendant).
   Opinion

DUPONT, J.

The sole issue in this case, as stated by the plaintiff, is whether General Statutes § 17a-28 “prohibiting dissemination of information gathered by the department of children and families (department) in all but strictly limited circumstances [should] be enforced as written by the legislature or should new, unprecedented and creative exceptions to statutory law be found?” This “issue,” as discussed in the plaintiffs brief, amounts to three arguments.

The plaintiff, the mother of a child who was the subject of a department investigation, argues that the trial court should not have concluded (1) that she was provided with access to all the records relevant to an investigation by the department in a case involving her, (2) that no relevant department records involving her were improperly disclosed to others and (3) that she had not alleged and proved damages for the recovery of attorney’s fees, expenditure of her personal time and diminution of her reputation in the community. We affirm the trial court’s judgment for the defendant.

The trial court found the following relevant facts. The department received a telephone call from the Childcare Center of Stamford, Inc., reporting a suspected child neglect situation. The call was received after-hours. An investigator was sent to the home of the plaintiff to investigate. The Greenwich police were notified and were requested by the department to provide a police escort for the investigator. Information as to the allegations of the child care center was provided to the police and reflected in a police report. The plaintiff and the child’s father were not at home that night and, therefore, no investigation was made at that time. An investigation was made the following day, and the investigator’s report was forwarded to the department’s regional office for completion of the investigation. The department sent a letter four days after the first investigation to the plaintiff and the child’s father, outlining the nature of the report the regional office had received. The department subsequently concluded its investigation and determined that there was no basis to support the suspected neglect reported by the child care center. The department notified the plaintiff by letter that it could not confirm any neglect or abuse. In that letter, the plaintiff was advised that the department “will be expunging your case from the computer system.” The child care center was also notified of the outcome of its referral.

A week after receipt of the letter, the plaintiff sent a letter to a social work supervisor at the regional office of the department requesting, pursuant to General Statutes § 1-19, the Freedom of Information Act, a “copy of all reports and material related to a report of neglect and/or abuse by us of our children.” Less than two months elapsed from the date of the telephone call by the day care center to the date of the letter from the plaintiff.

After receipt of the plaintiffs letter, the regional office notified her and the child’s father that the records could be reviewed in its office, and an attorney representing the plaintiff subsequently did review the entire file. The plaintiff did not receive a photocopy of the records, but the department did provide the plaintiff with a photocopy of the substantive portion of the file.

The plaintiffs complaint is brought pursuant to § 17a-28 (m) (l), which authorizes any person aggrieved by violations of certain subsections of § 17a-28 to seek judicial relief in the same manner as provided in General Statutes § 52-146j. The complaint alleges a cause of action for failure to provide photocopies of records and for providing records to unauthorized persons.

The trial court found that the plaintiff was provided with a photocopy of all relevant records and that the plaintiff had not met her burden of proof by a fair preponderance of the evidence that the department refused to provide photocopies of all of the records requested. The court also found that the plaintiff never requested access to or a printout of any records stored on computer and that the computer records had been expunged. Further, the court found that the only document not destroyed was a document noting the time and assignment to an investigator when the complaint from the child care center was first received, and that a photocopy of this document had been provided to the father of the child.

On the basis of our thorough review of the record and exhibits in this case, we conclude that the trial court’s findings and conclusions are supported by the evidence and should not be disturbed. We affirm the trial court’s conclusion that the plaintiff was provided with access to all of the relevant records.

The plaintiff also argues that the records that were disclosed to others were statutorily protected. It is her contention that the letter sent to the child care center that had reported the possible child neglect, informing the center that the department would take no intervention action, violated § 17a-28 (f) (7) because no determination was made that the limited disclosure was in the person’s best interest. That statute states that the department may inform the reporters of possible child neglect of the outcome of the department’s investigation of such neglect, provided that the information disclosed is “limited to (A) the status of the investigation and (B) in general terms, any action taken by the department . . . .” The letter to the reporter in this case contained no information other than the cessation of the investigation and the names of the parents and the child, which the child care center already knew. The trial court found that the letter was an official department form and was sent in accordance with department policy. Implicit in this finding is that the department had determined that it was in the best interest of the plaintiff and the child care center to state that no action would be taken by the department.

The plaintiff also contends that information should not have been disclosed to a department supervisor who took the initial telephone call from the child care center because at the time of the disclosure to her she was not then working for the department. The record in question was mailed to the supervisor, and was a copy of a record she herself had generated and signed when she was working for the department. She was again working for the department when her deposition was taken by the plaintiff. The record was sent to her in preparation for the deposition. We agree with the trial court that on the basis of these facts the disclosure to her was not violative of § 17a-28 (b).

The plaintiff also complains that a disclosure to the Greenwich police was unauthorized. This disclosure contained details of the allegations of the child care center. Three statutes when read together provide support for the trial court’s conclusion that the disclosure to the police was not violative of any rights of the plaintiff. General Statutes § 17a-101 (a) establishes the public policy of the state. That public policy, in part, is to “protect children whose health and welfare may be adversely affected through injury and neglect. . . .” To implement that purpose, the state’s policy is “to require the reporting of suspected child abuse, investigation of such reports by a social agency, and provision of services, where needed to such child and family.” General Statutes § 17a-28 (e) provides in part that the department shall upon request promptly provide copies of records, without the consent of a person, to a law enforcement agency “for purposes of investigating . . . an allegation of child abuse or neglect . . . .” General Statutes § 17a-101b (a) provides that if an oral report has been made by a person who is mandated to report neglect or abuse “including, but not limited to, a report that. . . (5) a child has suffered serious nonaccidental physical injury, [the commissioner of the department] shall, within twenty-four hours of receipt of such report, notify the appropriate law enforcement agency.” (Emphasis added.) Here, the child care center is a mandated reporter that made an oral report to the department. See General Statutes § 17a-101 (b).

We agree with the trial court that on the basis of the facts of this case, public policy and statutory authorization allowed the department to conduct an after-hours investigation, to seek a police escort and to provide the police with basic information. It was for the department to determine whether the report of neglect was an emergency that required investigation immediately. If so, the allegations of the child care center were necessarily revealed. Furthermore, § 17a-101b (a) (5) specifically provides for the transmission of information to a law enforcement agency in some instances.

The plaintiff also claims that the department improperly disclosed information to the two assistant attorneys general who entered appearances on behalf of the department in this lawsuit. To articulate the claim is to refute it. See General Statutes § 17a-28 (f) (5).

The plaintiff makes one last broad claim of another statutoiy indiscretion, namely that the department disclosed records pertaining to the plaintiff to the state data center. We do not consider this claim because it was not raised in or considered by the trial court.

Because we conclude that the plaintiff was provided with access to all relevant records and that no relevant department records were released in violation of any statute, we need not consider the plaintiffs claim that she suffered damages for which she is entitled to monetary compensation. The trial court did not use “new, unprecedented and creative exceptions to statutory law” to conclude that judgment for the defendant should be rendered. Nor do we in affirming that judgment.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 17a-28 (m) (1) provides that persons aggrieved by a violation of subsection (b), (e), (f), (g), (h), (i) or (k), or certain provisions of subsection (l) may seek appropriate relief pursuant to § 52-146j, in the event of improper disclosure of records, in the Superior Court for the judicial district in which they reside. Here, the plaintiff claims a violation of several subsections, most notably (b), which prohibits disclosure of department records without the consent of a person named in a record.


author: DUPONT, J. SHEA, J.,

text:
    WALTER LEWIS v. BARBARA SWAN ET AL.
    (AC 16315)
    O’Connell, C. J., and Dupont and Shea, Js.

      Argued November 3, 1997
    officially released August 11, 1998

      Norman J. Voog, with whom, on the brief, was Christopher J. Molyneaux, for the appellant (plaintiff).

      Robert A. Fuller, with whom was Leo P. Carroll, for the appellee (defendant Chelsea G.C.A. Realty Partnership, L.P.).
   Opinion

DUPONT, J.

The plaintiff appeals from the trial court’s judgment dismissing his complaint, which sought a judgment of mandamus and injunctive relief requiring the town of Clinton defendants to enforce certain provisions of the town zoning regulations against the remaining defendant, Chelsea G.C.A. Realty Partnership, L.P. (Chelsea). The dispositive issue in this appeal is whether a builder and developer who alleges that he engaged in owning and developing properties for many years in a particular town has standing to seek judicial aid to enforce that town’s zoning regulations against another developer.

Chelsea was constructing a shopping center in the town at the time the complaint was filed. Specifically, the plaintiff sought the issuance of a writ of mandamus and injunctive relief mandating the town zoning enforcement officer and the other town officials to enforce the planning and zoning regulations, and to issue a cease and desist order requiring Chelsea to remove from the shopping center any building exceeding the height of forty feet and to limit the area of any store leased in the shopping center to ten thousand square feet, as allegedly prescribed by the zoning regulations.

Chelsea filed a motion to dismiss on the ground that the plaintiff had failed to exhaust his administrative remedy of appealing from the zoning commission’s approval of Chelsea’s shopping center site plan. The trial court granted the motion to dismiss on that ground. While we agree that a judgment of dismissal by the trial court should have been rendered, we so conclude on the ground that the plaintiff lacked standing to bring this action. The defendant Chelsea has raised this alternate ground to affirm the judgment of dismissal. See Cotto v. United Technologies Corp., 48 Conn. App. 618, 624-25, 711 A.2d 1180, cert. granted on other grounds, 245 Conn. 915, 717 A.2d 233 (1998); Foley v. Huntington Co., 42 Conn. App. 712, 742, 682 A.2d 1026, cert. denied, 239 Conn. 931, 683 A.2d 397 (1996).

The zoning commission’s approval of Chelsea’s site plan for the shopping center was granted on January 31, 1995, and the plaintiff did not appeal. The plaintiff filed the present action more than one year after the site plan approval. In granting Chelsea’s motion to dismiss, the trial court relied on the rule that a plaintiff who fails to exhaust an available administrative remedy may not bring a separate action raising issues that could have been determined in an appeal from the decision of an administrative agency. O & G Industries, Inc. v. Planning & Zoning Commission, 232 Conn. 419, 425, 655 A.2d 1121 (1995).

No allegation of the complaint, however, attacks the zoning commission’s approval of the site plan, nor does the plaintiff seek to have the approval invalidated. The entire complaint is concerned, not with the approval of the site plan, but with Chelsea’s alleged failure to comply with certain provisions of the zoning regulations in the course of constructing the shopping center. The plaintiff claims that he could not have known of the alleged violations with respect to building height and store area at the time the site plan was approved, and could not have appealed on grounds that did not then exist. We agree with the plaintiff.

At the time the alleged violations became evident, the plaintiff alleges that he brought them to the attention of the zoning enforcement officer. Although the plaintiff did not pursue an administrative appeal from the zoning enforcement officer’s alleged refusal to enforce the zoning regulations, it is unclear in this case whether such an administrative remedy was available to him. Even if we assume that it was, the plaintiff need not have exhausted that remedy before bringing this action. Cummings v. Tripp, 204 Conn. 67, 80, 527 A.2d 230 (1987). The plaintiff did not fail to exhaust his administrative remedies.

We next consider whether the plaintiff had standing to pursue a direct appeal. There are a number of cases in which plaintiffs have pursued direct appeals without having first exhausted administrative remedies, but such cases do not establish that persons such as the plaintiff in this case have standing. These cases are exceptions to the general rule that administrative remedies must be exhausted as a prerequisite to judicial appeals. In Reynolds v. Soffer, 183 Conn. 67, 438 A.2d 1163 (1981), it was held that a person specifically and materially damaged by a violation of zoning regulations that has occurred or is likely to occur on another’s land may seek injunctive relief restraining such violation without exhausting administrative remedies. The complaint in Reynolds alleged a nuisance that “adversely affects the plaintiffs’ property, decreases its value, increases the risk of fire and other dangers, specifically endangering health as a result of rodents migrating from the defendants’ property . . . and noise, odors, pollution, and disease-causing substances discharged from a new ventilating system.” Id., 68. Reynolds was concerned with when a direct appeal may be taken without first having exhausted the appellate administrative route. It was not concerned with the standing of the person or entity to bring that direct appeal.

In cases such as Reynolds, the claims for relief included common-law nuisance as well as injunctive relief. All assumed that the plaintiffs had standing. See Cummings v. Tripp, supra, 204 Conn. 76 and n.9 (nuisance action claiming “ ‘grievous injury, damage and harm,’ ” and “annoyance, personal inconvenience and irritation”); Scoville v. Ronalter, 162 Conn. 67, 76, 291 A.2d 222 (1971) (“ ‘sight, noise and disturbance of construction,’ ” and devaluation of plaintiffs’ property); Jobert v. Morant, 150 Conn. 584, 588, 192 A.2d 553 (1963) (noise, traffic and other conditions detrimental to neighborhood); Blum v. Lisbon Leasing Corp., 173 Conn. 175, 178, 377 A.2d 280 (1977) (“smoke, loud noises, odor of burning rubber”).

Where a party is found to lack standing, the trial court is without subject matter jurisdiction to adjudicate the cause of action. Tomlinson v. Board of Education, 226 Conn. 704, 717, 629 A.2d 333 (1993). Lack of subject matter jurisdiction may be raised at any time. Blakeney v. Commissioner of Correction, 47 Conn. App. 568, 574-75, 706 A.2d 989, cert. denied, 244 Conn. 913, 713 A.2d 830 (1998). “ ‘Jurisdiction of the subject matter is a question of law and cannot be waived or conferred by consent either in the trial court or here. . . . Serrani v. Board of Ethics, 225 Conn. 305, 308, 622 A.2d 1009 (1993).’ ” Amodio v. Amodio, 45 Conn. App. 737, 739, 697 A.2d 373 (1997), cert. granted on other grounds, 243 Conn. 963, 707 A.2d 1265 (1998).

A motion to dismiss admits all facts well pleaded. Carl J. Herzog Foundation, Inc. v. University of Bridgeport, 41 Conn. App. 790, 793, 677 A.2d 1378 (1996) , rev’d on other grounds, 243 Conn. 1,699 A.2d 995 (1997). “In ruling upon whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader. Mahoney v. Lensink, 213 Conn. 548, 567, 569 A.2d 518 (1990), and cases cited therein.” Pamela B. v. Ment, 244 Conn. 296, 308-309, 709 A.2d 1089 (1998). In the present case, no evidence was offered in the trial court on the issue of standing. For purposes of determining whether the plaintiff has standing, we assume the factual allegations in the complaint to be true. See Carl J. Herzog Foundation, Inc. v. University of Bridgeport, supra, 793.

The plaintiff alleges in his complaint that he is a builder and developer and that for many years he has been, and continues to be, engaged in owning and developing commercial properties in the town of Clinton. The plaintiff also alleges that Chelsea failed to comply with the town’s zoning regulations in the course of constructing the shopping center, and that the town has failed to enforce those regulations against Chelsea. The plaintiff further alleges that these circumstances constitute selective enforcement of the zoning regulations contrary to state law and put him at a severe economic and competitive disadvantage. He claims that he is subject to the same zoning regulations but does not allege that he has actually complied with them at any site built, developed or owned by him and does not allege that he, is the owner of another shopping center in the town.

“Standing is not a technical rule intended to keep aggrieved parties out of court; nor is it a test of substantive rights. Rather it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented. . . . Thus, standing does not hinge on whether the plaintiff will ultimately be entitled to obtain relief on the merits of an action, but on whether he is entitled to seek the relief.” (Citations omitted; internal quotation marks omitted.) Id., 794.

“Standing concerns the question whether the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question. [Assn. of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 153, 90 S. Ct. 827, 25 L. Ed. 2d 184 (1970)]; Ducharme v. Putnam, 161 Conn. 135, 139, 285 A.2d 318 (1971); Maloney v. Pac, 183 Conn. 313, 320-21, 439 A.2d 349 (1981). . . . Mystic Marinelife Aquarium, Inc. v. Gill, [175 Conn. 483, 492, 400 A.2d 726 (1978)]; see New England Rehabilitation Hospital of Hartford, Inc. v. Commission on Hospitals & Health Care, 226 Conn. 105, 126, 627 A.2d 1257 (1993) (Citation omitted; internal quotation marks omitted.) Med-Trans of Connecticut, Inc. v. Dept. of Public Health & Addiction Services, 242 Conn. 152, 160, 699 A.2d 142 (1997).

The zone of interests test was articulated by the United States Supreme Court in Assn. of Data Processing Service Organizations, Inc. v. Camp, supra, 397 U.S. 150. In that case, the petitioners, providers of data processing services to businesses generally, challenged a ruling by the United States Office of the Comptroller of the Currency permitting national banks, such as the respondent bank, to make data processing services available to other banks and bank customers. Id. The Supreme Court held that the petitioners had standing to maintain the action, in part because it concluded that the particular petitioner was a competitor within the zone of interests protected by § 4 of the Bank Service Corporation Act of 1962, 12 U.S.C. § 1864. Assn. of Data Processing Service Organizations, Inc. v. Camp, supra, 156-57. The petitioners not only alleged that competition by national banks in the business of providing data processing services might entail some future loss of profits for the petitioners, but also that the respondent bank was performing or preparing to perform such services for two customers for whom one of the petitioners had previously agreed or negotiated to perform such services. Id., 152.

“It has been pointed out that the ‘zone of interests’ test bears a family resemblance to the ‘scope of the risk’ doctrine in the law of torts. L. Tribe, American Constitutional Law [1978], pp. 97-98. In tort law, it is not enough that the defendant’s violation of the law caused injury to a plaintiff. The defendant must also owe that plaintiff a duty. Similarly, with respect to the law of standing, it is not enough that a party is injured by an act or omission of another party. The defendant must have also violated some duty owed to the plaintiff. ‘Applying this doctrine to challenges of official government action or inaction, the relevant question would not be simply whether the official or agency violated the law, but rather whether the official or agency violated any duty to the plaintiff.’ Id., 98.” Planning & Zoning Commission v. Gaal, 9 Conn. App. 538, 544, 520 A.2d 246, cert. denied, 203 Conn. 803, 522 A.2d 294 (1987).

Whether the plaintiff in the present case has standing to challenge the zoning enforcement officer’s alleged failure to enforce particular zoning regulations depends on whether any duty was owed to the plaintiff, that is, whether the plaintiff was within the zone of interests protected by the regulations. This inquiry, in turn, requires an examination of the function and purpose of zoning regulations.

Our case law indicates that the primary purpose of zoning is to protect the public interest. “The object of zoning, primarily, is to promote the health, safety, welfare and prosperity of the community. Devaney v. Board of Zoning Appeals, 132 Conn. 537, 539, 45 A.2d 828 (1946).'' Stephen Reney Memorial Fund v. Old Saybrook, 4 Conn. App. 111, 113, 492 A.2d 533 (1985); see also Sonn v. Planning Commission, 172 Conn. 156, 161, 374 A.2d 159 (1976) (“[mjunicipal planning is intended to promote the general welfare and prosperity of its people”); Smith v. Planning & Zoning Board, 3 Conn. App. 550, 554, 490 A.2d 539 (1985), aff'd, 203 Conn. 317, 524 A.2d 1128 (1987) (“purpose of zoning is to regulate property uses in conformance with a comprehensive plan in a maimer to advance the public welfare”). Moreover, our Supreme Court has noted that “[t]he maximum possible enrichment of a particular developer is not the controlling purpose of zoning.” Sonn v. Planning Commission, supra, 161; see also Hyatt v. Zoning Board of Appeals, 163 Conn. 379, 382, 311 A.2d 77 (1972). We conclude that zoning is meant to protect the public at large and not the interests of individual developers. Without some particular harm, such as the maintenance of a nuisance affecting the land of a plaintiff or a statute allowing the maintenance of his lawsuit, the plaintiff can have no standing. See General Statutes § 8-8 (a) (1).

The plaintiff here claims that he has standing to challenge the zoning enforcement officer’s alleged failure to enforce the town zoning regulations because this lack of enforcement puts him at an economic and competitive disadvantage. He does not allege with any specificity that the claimed failure to enforce the regulations against the defendant Chelsea in any way infringed on his current business operations. For example, the plaintiffs complaint contains no allegation that he built, developed or owned another shopping center in the town that lost potential tenants to Chelsea because of the alleged selective zoning enforcement. In fact, the plaintiff does not even allege that he complied with the regulations he claims Chelsea violated. He merely alleges that he was “subject to” those regulations.

The plaintiff is essentially claiming that he is harmed by unfair or illegal competition arising from the alleged failure of the zoning enforcement officer to enforce the regulations. In applying the zone of interests test to this claim, we must discuss several cases that have addressed similar claims.

In Connecticut State Medical Society v. Board of Examiners in Podiatry, 203 Conn. 295, 524 A.2d 636 (1987), the plaintiff physician alleged unfair or illegal competition in his appeal from a declaratory ruling of the board of examiners in podiatry regarding the scope of podiatry practice in the state. The trial court dismissed the plaintiffs claim. In holding that the plaintiff physician had standing to appeal the board’s ruling, our Supreme Court did not explicitly discuss the zone of interests test, but did state that “[a] licensed physician has a right and estate in his profession of which he cannot be deprived without due process of law. . . . Cases are legion holding, in one way or another, that the right of a licentiate to practice his profession is a property right, or a right in the nature of a property right, or a valuable franchise, or a valuable privilege.” (Citations omitted; internal quotation marks omitted.) Id., 300. Thus, the plaintiff physician asserted an interest that was within the zone of interests to be protected by a constitutional guarantee, namely the right not to be deprived of his property interest in his medical license without due process of law. The plaintiff in the present case made no such allegation of a property interest entitling him to protection by the constitutional guarantee of due process.

In Light Rigging Co. v. Dept. of Public Utility Control, 219 Conn. 168, 169, 592 A.2d 386 (1991), the plaintiffs challenged a decision of the defendant department of public utility control (department) that granted a certificate of public convenience and necessity to a potential competitor. The plaintiffs in that case held certificates similar to the one being challenged. Id. Again, the court did not discuss explicitly the zone of interests test, but concluded that the plaintiffs had standing to appeal the department’s decision because the relevant statute expressly requires the department to consider public need for the services to be rendered by an applicant before granting a certificate, thereby entitling existing certificate holders to be free of competition for which no need has been shown. Id., 177. Thus, the Light Rigging Co. plaintiffs came within the zone of interests to be protected by the statute in question. The plaintiff in the present case has made no allegation that the relevant zoning regulations require the zoning enforcement officer to consider the plaintiffs competitive interest, nor has the plaintiff alleged reliance on a statute that entitles him to be protected from competition.

In United Cable Television Services Corp. v. Dept. of Public Utility Control, 235 Conn. 334, 663 A.2d 1011 (1995), the plaintiff, alleging unfair or illegal competition, challenged the granting of a certificate of public convenience and necessity to a potential competitor. In that case, our Supreme Court explicitly applied the zone of interests test to conclude that the plaintiff had no standing to vindicate the interests protected by three out of four statutory sections at issue. The court held that consumers were the only class intended to be protected by those three sections and that competitors had no standing to assert violations of them. Id., 346. As in Light Rigging Co., a particular statute was alleged and relied on to grant protection to the plaintiffs as competitors.

As to the fourth statutory section at issue in United Cable Television Services Corp., the parties did not dispute that the plaintiff had standing to challenge its alleged violation. Our Supreme Court nonetheless confirmed that this particular section “requires the department specifically to take into account the existing franchise holder’s interests when determining the terms and conditions under which a new franchise will be created. It envisions a level playing field so that an applicant for a new franchise does not enter the market at a competitive advantage.” Id., 354-55. There is no indication in the present case that the town zoning enforcement officer is required, either by statute or regulation, to consider the interests of competing developers.

In Med-Trans of Connecticut, Inc. v. Dept. of Public Health & Addiction Services, supra, 242 Conn. 152, the plaintiffs held licenses to provide ambulance services in a particular county. They appealed to the trial court from the decision of the defendant department of public health and addiction services (public health department) granting another entity a license to provide ambulance services in the same area. The court applied the zone of interests test and held that the trial court properly dismissed the plaintiffs’ appeal. The court’s rationale was that the statute concerning the licensing of ambulance services requires the public health department primarily to protect the public at large and not the interests of individual competitors such as the plaintiffs. Id., 165.

As we have noted, and as included in the stated purposes of the zoning regulations of the town of Clinton, the primary purpose of zoning is to protect the public at large, not the competitive interests of individual developers such as the plaintiff. Section 1.4 of the Clinton zoning regulations provides in part: “Purpose: The purpose of these regulations is to promote the health, safety and general welfare of the community; to conserve the value of property and encourage the most appropriate use of land throughout the Town . . . .”

The plaintiff has failed to cite any statute, regulation or constitutional guarantee that places him within a protected zone of interests. His brief obliquely refers to a constitutional deprivation but fails to supply any facts to support his claim of selective enforcement of the zoning regulations. The plaintiff has no standing to challenge the town zoning officials’ alleged failure to enforce particular zoning regulations against the defendant Chelsea. The trial court properly dismissed the plaintiffs complaint.

The judgment is affirmed.

In this opinion O’CONNELL, C. J., concurred.

SHEA, J.,

concurring in part and dissenting in part. I agree with the majority that the trial court incorrectly dismissed this action for lack of subject matter jurisdiction because the plaintiff failed to exhaust his administrative remedies. The complaint alleges zoning violations with respect to building height and store area that did not occur until some time after the zoning commission had approved Chelsea’s site plan for the shopping center. No administrative remedy was available by the time the claimed violations reasonably could have been discovered.

I disagree, however, with the conclusion of the majority that the plaintiff lacks standing to protect his economic interests as a developer and owner of other shopping centers in the town of Clinton. The complaint alleges that the claimed zoning violations have been called to the attention of the zoning commission, its counsel and the zoning enforcement officer for the town, who has refused the plaintiffs requests for cease and desist orders. The allegation of aggrievement is that the plaintiff is “a major developer, owner, and builder in the town who is subjected to the [zoning regulations] of the Town, [and] the nonenforcement of these regulations as to Chelsea puts the plaintiff at a severe economic and competitive disadvantage, is a grave injury in fact, and constitutes selective enforcement of the zoning laws contrary to state law.”

General Statutes § 8-2 (a) provides in part that “[a] 11 such [zoning] regulations shall be uniform for each class or kind of buildings, structures or use of land throughout each district . . . .” Implicitly, this provision requires uniform enforcement of zoning regulations. “The obvious purpose of the requirement of uniformity in the regulations is to assure property owners that there shall be no improper discrimination, all owners of the same class and in the same district being treated alike . . . .” Veseskis v. Bristol Zoning Commission, 168 Conn. 358, 360, 362 A.2d 538 (1975). “Any person specifically and materially damaged by a violation of the zoning ordinances which has occurred or is likely to occur on another’s land may seek injunctive relief restraining such violation.” Karls v. Alexandra Realty Corp. 179 Conn. 390, 401, 426 A.2d 784 (1980). “If the plaintiffs have suffered special damages as alleged in their complaint, the court has equitable jurisdiction and may grant injunctive relief.” Blum v. Lisbon Leasing Corp., 173 Conn. 175, 180, 377 A.2d 280 (1977). Courts have frequently applied these principles to find standing on the part of property owners claiming harm resulting from activities on other land that violate zoning regulations. Reynolds v. Soffer, 183 Conn. 67, 69, 438 A.2d 1163 (1981); Schomer v. Shilepsky, 169 Conn. 186, 194, 363 A.2d 128 (1975). The requirement of “special damages” serves to differentiate persons having standing to seek relief for zoning violations from the general public.

The plaintiffs claim of selective enforcement of the zoning regulations is essentially a claim of unfair and illegal competition in which the town is participating. Although the plaintiffs status as a competitor of Chelsea in the development and ownership of shopping centers in Clinton might not suffice to confer standing, his allegation of unfair and illegal competition presents the standing issue in a different light. The courts of this state have “frequently assumed jurisdiction as a matter of course over claims of unfair or illegal competition.” Connecticut State Medical Society v. Board of Examiners in Podiatry, 203 Conn. 295, 302, 524 A.2d 636 (1987). The complaint sufficiently alleges unfair and illegal competition by virtue of selective enforcement of the zoning regulations impacting the plaintiffs interests as a shopping center owner, given the favorable construction that must be accorded to a complaint on a motion to dismiss for lack of jurisdiction. See Duguay v. Hopkins, 191 Conn. 222, 227, 464 A.2d 45 (1983).

I would reverse the judgment of dismissal and remand the case to the trial court for further proceedings to provide the plaintiff an opportunity to prove his claim of standing based on unfair competition.

       These defendants are Barbara Swan, the town’s zoning enforcement officer; the town planning and zoning commission (zoning commission); John Bennet, counsel to the commission; and the town of Clinton.

       The complaint was filed in July, 1996, and the shopping center opened for business in September, 1996.

       The motion to dismiss was not based on the plaintiffs failure to exhaust any administrative remedy of appealing from the alleged refusal of the zoning enforcement officer to enforce the regulations, but on his failure to appeal from the approval by the zoning commission of the site plan. The plaintiffs complaint gives no date for the alleged oral refusal of the zoning enforcement officer.

       Chelsea argues in its brief that it did not violate the square foot limitation and the tower height limitation as provided in the town’s zoning regulations. This argument, however, goes to the merits of whether the plaintiff would be entitled to relief, not to the plaintiffs standing.

       It is well established that an administrative agency’s regulations have the same force and effect of a statute unless they are shown to be inconsistent with the authorizing statute. Travelers Ins. Co. v. Kulla, 216 Conn. 390, 399, 579 A.2d 525 (1990); Cameron v. Alander, 39 Conn. App. 216, 220, 664 A.2d 332, cert. denied, 235 Conn. 924, 666 A.2d 1185 (1995).

       The Supreme Court affirmed the trial court’s decision not to reach the merits of the plaintiffs claim under this fourth section because the plaintiff failed to provide the trial court with an adequate record for review of the claim.

       In his brief, the plaintiff contends that Chelsea will have an unfair advantage in attracting customers to its shopping center if the towers it has erected on the shopping center buildings are permitted to exceed the building height limitation that other shopping centers in Clinton must obey. He also maintains that allowing Chelsea to exceed the store area restriction results in an unfair advantage in obtaining the larger retail stores as lessees for its shopping center.