author: Landau, J.

text:
    Michael Infante v. Michelle Porath
    (10768)
    O’Connell, Landau and Heiman, Js.
    Submitted on briefs September 14
    decision released November 10, 1992

      John Luckart, Jr., filed a brief for the appellant (defendant).

      Victor G. Catalano filed a brief for the appellee (plaintiff).
   Landau, J.

The defendant appeals from the judgment of the trial court in favor of the plaintiff. The defendant claims that the trial court improperly concluded that her motion to reopen was untimely, thereby precluding the court’s jurisdiction to hear the matter. We agree.

The plaintiff brought an action on a promissory note against the defendant, Michelle Porath. The defendant did not appear, and the trial court granted the plaintiff’s motion for default for failure to appear. In April, 1991, the plaintiff filed a motion for judgment, and judgment was rendered on April 29, 1991. On August 29,1991, the plaintiff filed a “motion to reopen” the judgment pursuant to Practice Book § 377. The trial court denied the motion, stating that the plaintiff failed to file the motion within the time period provided by the rules of practice.

“The rules of statutory construction apply with equal force to Practice Book rules. ... A basic tenet of statutory construction is that when a statute [or rule of practice] is clear and unambiguous, there is no room for construction.” (Citations omitted; internal quotation marks omitted.) State v. Genotti, 220 Conn. 796, 807, 601 A.2d 1013 (1992); Nichols v. Warren, 209 Conn. 191, 196, 550 A.2d 309 (1988). The words “following” and “succeeding” mean “to come or take place after in time, sequence, or order.” Webster, Third New International Dictionary. The plain language of Practice Book § 377 and General Statutes § 52-212 requires that the date of the judgment not be included in the calculation.

This determination is reinforced by the language in Practice Book § 584, which provides that “[t]he court may, upon motion, and after such notice by mail, or otherwise as it may order, vacate any judgment rendered under this procedure, within four months from the date thereof . . . .” The same section provides that the “court may, for the reasons indicated above, vacate any judgment rendered by default at any time within four months succeeding the date upon which a wage execution was levied.” If the framers of the rule had intended that the judgment be vacated within four months of the wage execution, including the date thereof, they would have explicitly so stated; State v. Genotti, supra, 809; as they did in Practice Book § 584, instead of stating that the judgment could be vacated within four months succeeding the date upon which the wage execution was levied. “ ‘We will not torture the words or sentence structure of a statute [or rule] to import an ambiguity where the ordinary meaning of the language leaves no room for it.’ ” State v. Genotti, supra.

It is well settled that the day of the act from which a future time is to be ascertained is to be excluded from the computation. Lamberti v. Stamford, 131 Conn. 396, 397-98, 40 A.2d 190 (1944). This is consistent with the language of both Practice Book § 377 and General Statutes § 52-212. Excluding the date of the judgment, the first full day of the period was April 30, 1991.

Finally, we consider the meaning of the word month. The word “month” shall mean “calendar month.” General Statutes § 1-1 (i). Four calendar months refers “to a period of time and not to specific months as named in the calendar.” Krajniak v. Wilson, 157 Conn. 126, 130, 249 A.2d 249 (1968). A period of time of one calendar month, if the first day of that period is the first day of the calendar month, would terminate at the end of the last day of that calendar month rather than at the end of the first day of the next succeeding calendar month. Correspondingly, if the first day of the period is other than the first day of the month, such as April 29 in the present case, the period of one month would terminate at the end of May 28 rather than at the end of May 29. The same rule applies where the period, as here, consists of several months. Id. Thus, in the present case, because the period began to run on April 30, 1991, it expired on August 29, 1991. Therefore, the defendant’s motion to open was timely filed.

The denial of the defendant’s motion to open the judgment is reversed and the case is remanded for further proceedings on that motion.

In this opinion the other judges concurred.

       We will treat the motion as a motion to open.

       Practice Book § 377 provides in part: “Any judgment rendered or decree passed upon a default or nonsuit may be set aside within four months succeeding the date on which it was rendered or passed . . . .”

       The parties framed the issue on this appeal as whether the language “within four months following the date on which [the judgment] was rendered or passed” found in General Statutes §§ 52-212 and 52-212a, as well as in Practice Book § 326, began to run on the day of the judgment or the day following the judgment. The rule of practice applicable to a motion to open upon default, however, is § 377. Furthermore, the applicable statute is § 52-212, not § 52-212a. Therefore, we review this appeal under Practice Book § 377 and General Statutes § 52-212.
      The language in each of those sections is similar. Prior to 1982, §§ 52-212 and 52-212a provided that a judgment could be opened within four months “succeeding” the date on which it was rendered or passed. In 1982, the legislature amended both sections, substituting the word “following” for the word “succeeding.” Public Acts 1982, No. 82-160, § 102. The legislative history reveals, however, that these revisions were technical in nature, and did not affect the substance of the law.
      Practice Book § 326 provides in part: “[A]ny civil judgment or decree rendered in the superior court may not be opened or set aside unless a motion to open or set aside is filed within four months succeeding the date on which it was rendered or passed. . . .”
      General Statutes § 52-212 provides in part: “reopening judgment upon default OR nonsuit, (a) Any judgment rendered or decree passed upon a default or nonsuit in the superior court may be set aside, within four months following the date on which it was rendered or passed . . .
      General Statutes § 52-212a provides in part: “civil judgment or decree reopened or set aside within four months only. Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, a civil judgment or decree rendered in the superior court may not be opened or set aside unless a motion to open or set aside is filed within four months following the date on which it was rendered or passed. . . .”


source: Caselaw Access Project

author: Foti, J.

license: Public Domain

text:
    Christine Arway et al. v. Walter S. Bloom et al.
    (11057)
    Foti, Heiman and Cretella, Js.
    Argued September 25
    decision released November 10, 1992

      Neil R. Marcus, with whom, on the brief, was Mary H. Casen, for the appellants (named defendant et al.).

      Jan A. Marcus, for the appellees (plaintiffs).
   Foti, J.

The defendants appeal from the decision of the trial court sustaining the plaintiffs’ appeal from the approval of a site plan and special permit application by the zoning commission of the town of Redding.

The following facts are relevant to this appeal. The defendants, Richard and Walter S. Bloom (applicants), are the contract purchasers of 35.77 acres of land located on Starrs Ridge Road in the town of Redding. The defendant zoning commission is that town’s duly authorized zoning authority. The plaintiffs, all of whom are Redding residents, own land in proximity to the subject property. On March 21, 1990, the applicants applied to the zoning commission for site plan approval and a special permit for the construction and operation of a summer day camp on the property. The property lies within an R-2 residential zone, which pursuant to § 4.2 of the zoning regulations of the town of Red-ding, is intended to “provide a rural residential environment.” A day camp is an allowable use with a special permit under § 4.2.3 of the regulations. At the same time they applied for zoning approval, the applicants also applied for a wetlands permit from the Redding conservation commission (wetlands commission), because the property contains extensive wetlands.

Between May 23 and August 22, 1990, the zoning commission held a series of public hearings on the application. During the course of the hearings, many members of the public, including the plaintiffs herein, spoke at length in opposition to the application, voicing concerns primarily about traffic and safety. The public hearing was closed on August 22, 1990, and the zoning commission approved the application on September 12, 1990, subject to two restrictions. The first restriction was a verbatim adoption of a condition attached to the August 21, 1990, approval that the applicants had obtained from the wetlands commission. The second restriction related to the applicants’ obligation to make certain improvements to the intersection of Starrs Ridge Road and Picketts Ridge Road.

The plaintiffs thereafter filed an appeal in Superior Court against the applicants and the zoning commission. Their ten point attack on the zoning approval alleged, inter alia, that the commission’s decision was against the weight of the evidence and that the approval was arbitrary, illegal, and an abuse of discretion. The plaintiffs’ primary concern was with the traffic congestion that they believed the proposed day camp would generate.

These same plaintiffs had already filed an appeal from the decision of the wetlands commission, which had approved the developers’ application for a wetlands permit subject to numerous conditions. In that appeal, the plaintiffs alleged thirteen ways in which the wetlands commission decision was arbitrary, illegal, and an abuse of discretion.

The wetlands appeal and the zoning appeal were heard together in the trial court, and the decisions were released on the same day. With respect to the wetlands appeal, the trial court held that the wetlands commission had, in fact, acted illegally by not closing the public hearing within the statutorily mandated time period. The trial court sustained that appeal and remanded the matter to the wetlands commission for a new hearing. That decision is not before us.

The trial court’s decision on the wetlands appeal formed the basis of its decision on the zoning appeal. The court found that under § 3.1 of the Redding inland wetlands and watercourses regulations, regulated activities affecting wetlands and watercourses are prohibited unless approved by the wetlands commission. The court reasoned that because it had nullified the decision of the wetlands commission, the zoning commission decision “which [was] based upon said nullified decision, must also fall.” The trial court sustained the plaintiffs’ zoning appeal on that procedural ground alone, without ever reaching the substantive issues raised in the appeal.

The sole issue before us is whether the trial court improperly found that General Statutes §§ 8-3 (g) and 8-3c (b) require the decision of a zoning commission to be set aside when a decision of the wetlands commission affecting the same property is appealed and judicially determined to have been illegal.

Section 8-3 (g), which pertains to site plan applications, and § 8-3c (b), which pertains to special permit applications, provide that a zoning “commission shall not render a decision on the [zoning] application until the inland wetlands agency has submitted a report with its final decision to such [zoning] commission. In making its decision the zoning commission shall give due consideration to the report of the inland wetlands agency.” (Emphasis added.) General Statutes § 8-3c (b); see General Statutes § 8-3 (g).

The trial court apparently reasoned that because the decision of the wetlands commission was determined on appeal to have been invalid, it could not, in retrospect, have been a final decision. The trial court found, in effect, that the term final decision means a decision that has withstood judicial scrutiny on appeal. The applicants, on the other hand, argue that the August 21,1990 report of the wetlands commission was its final decision for purposes of General Statutes §§ 8-3 (g) and 8-3c (b), and the zoning commission gave that report its due consideration. While the trial courts have had some occasion to interpret these statutes, neither this court nor our Supreme Court has construed them. This is thus a case of first impression and requires us to determine what the legislature meant by its use of the terms final decision and due consideration.

In construing these statutes, our goal is “to ascertain and give effect to the apparent intent of the legislature.” State v. Blasko, 202 Conn. 541, 553, 522 A.2d 753 (1987). We look first to the plain, unambiguous language of the statute. Rhodes v. Hartford, 201 Conn. 89, 93, 513 A.2d 124 (1986). Only if the language is ambiguous do we turn “for guidance to the legislative history and the purpose the statute is intended to serve.” State v. Koslowski, 199 Conn. 667, 673, 509 A.2d 20 (1986); see also Beizer v. Goepfert, 28 Conn. App. 693, 698, 613 A.2d 1336 (1992).

The terms final decision and due consideration are ambiguous, and we have looked to the legislative history of General Statutes §§ 8-3 (g) and 8-3c (b) to assist us in ascertaining their meaning. We find nothing to indicate that the term final decision means something other than the final decision contained in the report the zoning commission received from the wetlands commission, which report the zoning commission had in hand at the time it rendered its decision. Nor do we find that the term due consideration requires that the zoning commission’s decision be based on the report of the wetlands commission.

No. 87-533 of the 1987 Public Acts, which added the final decision language to the zoning statutes, was denominated “An Act Concerning the Inland Wetlands and Watercourses.” The goal of the act was to strengthen the inland wetlands law. 30 H.R. Proc., Pt. 28, 1987 Sess., p. 10227. One way it accomplished this was by “establishing] a coordinated timetable for planning and zoning and inland wetland decisions.” Id., p. 10228. Representative Thomas S. Luby, who summarized the bill containing the final decision language, stated, “My understanding is that it is important that an applicant under this Bill not, for example, fill in any wetland as a result of obtaining a [wetlands] permit prior to obtaining] the approval of the other land use commissions. That also requires within a certain [amount] of time, that an application be filed with the Wetlands Commission and it delays the action . . . of the other commissions until there is action by the Wetland Commission.” 30 H.R. Proc., Pt. 30, 1987 Sess., pp. 11043-44.

Public Act No. 87-533 also added language to General Statutes § 22a-42a (d) to the effect that “[n]o person shall conduct any regulated activity within an inland wetland or watercourse which requires zoning or subdivision approval without first having obtained a valid certificate of zoning or subdivision approval, special permit, special exception or variance or other documentation establishing that the proposal complies with the zoning or subdivision requirements adopted by the municipality pursuant to chapter 124 to 126, inclusive, or any special act.”

The coordinated approval process would require an applicant to file wetlands and zoning applications simultaneously. In fact, Public Act No. 87-533 amended the language of General Statutes (Rev. to 1985) § 8-3 (g) to require that, if a site plan application involves a regulated activity, “the applicant shall submit an application for a permit to the agency responsible for administration of the inland wetlands regulations not later than the day such application is filed with the zoning commission.”

The history of Public Acts 1987, No. 87-533 indicates that the legislature’s main concern at the time was simply to coordinate the approval processes of the zoning and wetlands commissions, so that a developer would not proceed with activities affecting an inland wetland before obtaining all necessary permits. The act strengthened the existing protections afforded by the wetlands law, which has, since its enactment in 1972, specified that “no regulated activity shall be conducted upon any inland wetland and watercourse without a [wetlands] permit.” General Statutes § 22a-42a (c). There is no indication that the legislature was attempting to make the zoning commission either a rubber stamp or a review board for the wetlands commission, or to alter in any way either commission’s respective jurisdiction or the statutory time limits for rendering each decision.

Because the legislative history of Public Act No. 87-533 does not specifically address the terms final decision and due consideration, we must look elsewhere to determine what these terms were intended to mean in the context of the new coordinated wetlands and zoning approval processes. Our Supreme Court has said that in construing a statute, we may “consider that where the legislature uses the same phrase it intends the same meaning.” Link v. Shelton, 186 Conn. 623, 627, 443 A.2d 902 (1982). The same final decision and due consideration language that was incorporated in the zoning statutes in 1987 has been used in our planning statutes since 1977, and we look there for guidance in interpreting these terms.

General Statutes § 8-26 provides in part that if an application for subdivision or resubdivision “involves land regulated as an inland wetland or watercourse under the provisions of chapter 440, the applicant shall submit an application to the agency responsible for administration of the inland wetlands regulations no later than the day the application is filed for the subdivision or resubdivision. The [planning] commission shall not render a decision until the inland wetlands agency has submitted a report with its final decision to such [planning] commission. In making its decision the [planning] commission shall give due consideration to the report of the inland wetlands agency.” This final decision and due consideration language in § 8-26 was added by No. 77-545 of the 1977 Public Acts. The history of that act indicates the language was, according to Representative Janet Polinsky, “designed to keep a developer from . . . dangling in the winds between a wetlands agency and a planning commission. If the proposed subdivision site is located on land regulated under the inland wetlands statutes, the applicant would file a copy of his application with the agency enforcing the inland wetlands and watercourse regulations within ten days of filing with the planning commission unless the wetland agency had already reviewed this application. This way the applicant would not, as some have, go all through the subdivision procedure, get his approval and then find he could not get a building permit because he failed to get approval from the wetlands agency.” 20 H.R. Proc., Pt. 6, 1977 Sess., pp. 2411-12.

Representative David K. Dodes specifically asked for clarification of the term due consideration: “What does ‘due consideration’ mean considering there is nothing in here that would say anything in regard to a mandatory requirement to accept the report from the other agency either to pass or disapprove a subdivision.” Id., p. 2414. Representative Polinsky then explained that “the inland wetlands statutes take care of themselves. What we are saying in effect here is that the planning commission, assuming the wetlands commission sent a report that said, hey man, there’s a lot of wetlands in there and we want to have a permit procedure and it’s going to take some time. The planning commission might, in making its decision, either hold up its decision, if that were possible within the relevance of a time period or might decide that they would have to deny until such time as a permit were given by the wetlands agency. But I don’t think we wanted to tie the wetlands statutes so tightly to the subdivision statutes that you were almost making them into one decision-making body.” Id., pp. 2414-15. Representative Dodes, who favored a “development commission . . . whereby all activities dealing with land use, planning, zoning, inland wetlands, conservation, economic development would be handled by one commission so that the right hand knows what the left hand is doing”; id., p. 2417; later expressed his disappointment that the bill did not require even greater coordination between the planning and wetlands commissions. “My second concern is the one in which the planning commission has got to give ‘due consideration’ to the report of the inland wetlands commission. I agree that right at this moment there is no mechanism by which planning commissions and inland wetlands commissions are in any way, shape or form required to contact each other or interact with each other. This [bill] is a step in the right direction although I do not think it goes far enough.” Id., p. 2416.

The legislative history of Public Act No. 77-545 thus indicates that while the planning commission was expected to review a report of the wetlands commission prior to making its own decision, each agency was expected to make its own independent decision on the application before it, within the appropriate time limits allowed by statute. While the planning agency “might . . . either hold up its decision . . . or might decide that they would have to deny [the application]”; 20 H.R. Proc., Pt. 6, 1977 Sess., pp. 2414-15; on the basis of the wetlands report, the two decisions were not expected to be so tightly tied together that they were, in effect, made by one decision making body. There is nothing to indicate that the validity of the planning commission’s decision was intended to be contingent upon the ultimate validity of the wetlands decision. See T. J. Tondro, Connecticut Land Use Regulation (2d Ed. 1992), p. 5.

In Ventres v. Inland Wetlands & Watercourses Agency, 25 Conn. App. 572, 575, 595 A.2d 914, cert. denied, 220 Conn. 921, 597 A.2d 344 (1991), we adopted this interpretation of the final decision language in General Statutes § 8-26. The plaintiff in Ventres had claimed that the local planning commission had improperly denied approval of his subdivision application, because it had never received a final decision from the wetlands agency. The gist of the plaintiff’s claim was that the wetlands agency’s decision could not be considered final as long as it was being appealed. We agreed with the trial court that “the wetlands agency’s final decision was contained in the report that the [planning] commission received and therefore satisfied the statute.” Id. Our careful review of the legislative history of Public Act No. 87-533 supports our adoption of this same interpretation of the zoning provisions in General Statutes §§ 8-3 (g) and 8-3c (b).

While Public Act No. 87-533 was intended to coordinate the roles of the zoning and wetlands commissions, it was not intended to make those decisions interdependent. When the zoning commission receives a copy of the “report” prepared by the wetlands commission, it is not required to review (or await judicial review of) the validity or invalidity of that commission’s final decision as a precursor to rendering its own decision. This construction of the term final decision is consistent with the function that the wetlands report was intended to serve. Capalbo v. Planning & Zoning Board of Appeals, 208 Conn. 480, 487-89, 547 A.2d 528 (1988); Preisner v. Aetna Casualty & Surety Co., 203 Conn. 407, 413-14, 525 A.2d 83 (1987). The final decision contained in the wetlands report is merely one of the many factors the zoning commission must consider in rendering its own decision, within its own relevant time limits. If the wetlands decision is later challenged (as was the wetlands decision here), this does not, retrospectively, deprive the zoning commission of jurisdiction to act on the application before it.

The zoning commission must give the wetlands commission report due consideration. We do not read this as a statutory mandate that the zoning commission’s decision be based on the wetlands report. To afford due consideration is to “give such weight or significance to a particular factor as under the circumstances it seems to merit, and this involves discretion.” Black’s Law Dictionary (5th Ed.). It entails “giving such thought or weight to a fact as it merits under all the circumstances of the case.” Ballentine’s Law Dictionary (3d Ed.). There is no question that the term due consideration requires the zoning commission to do more than simply receive the wetlands report and give it passing notice. The weight or significance to be accorded that report by the zoning commission depends, however, on the application before it; how much weight the report should be given is a matter of discretion for the commission.

Here, the zoning commission acted on the applicants’ site plan and special permit application with a favorable final report from the wetlands commission in hand. The fact that the wetlands decision was later reversed by the trial court on procedural grounds did nothing to disturb the zoning commission’s jurisdiction to render its own decision at the time it considered the wetlands report. Nor is there any question in this case that the Redding zoning commission gave the final report of the wetlands commission its due consideration. Whatever else due consideration of a wetlands report entails, it surely includes this zoning commission’s verbatim adoption of one of the wetlands commission’s own conditions of approval. We therefore conclude that the zoning commission gave due consideration to the final decision of the wetlands commission contained in its August 21,1990 report, and thereby satisfied the requirements of General Statutes §§ 8-3 (g) and 8-3c (b). The zoning commission’s jurisdiction to render this decision was unaffected by the plaintiff’s subsequent successful attack on the wetlands decision. Nor does the fact that the applicants reapplied to the wetlands commission and obtained a different decision change the fact that at the time the zoning commission rendered its decision, it had in hand a final decision of the wetlands commission to which it gave due consideration.

Any other approach would deprive the zoning commission of the authority to render its own final decision until all appeals of the wetlands commission’s decision have been exhausted. A reversal or invalidation of the wetlands commission’s decision would then require the applicant to reapply for both zoning and wetlands approval, and run the risk and concomitant expense of invalidation all over again. We do not believe the legislature intended to create such a costly and potentially endless application process.

Our interpretation of General Statutes §§ 8-3 (g) and 8-3c (b) does not diminish protection to the wetlands. General Statutes § 22a-42a (c) provides that “jn]o regulated activity shall be conducted upon any inland wetland and watercourse without a [wetlands] permit.” Thus, even a favorable decision from the zoning commission will not enable the applicants to proceed with development unless they are successful in obtaining a wetlands permit. As Representative Polinsky succinctly put it, “the inland wetlands statutes take care of themselves.” 20 H.R. Proc., Pt. 6, 1977 Sess., p. 2414.

The trial court did not consider the substantive issues raised in the plaintiffs’ appeal in view of its finding that the procedural defect in the wetlands decision also rendered the zoning commission’s decision null and void. The defendants have suggested that the trial court had those issues properly before it at the time it rendered its decision and therefore there is no need to remand for further consideration. We do not agree.

The plaintiffs did not waive any of their remaining claims, nor did the trial court consider and reject them. The trial court simply found that the procedural defect in the wetlands decision was dispositive of the appeal; it did not reach the substantive issues. Under these circumstances, the proper remedy is to remand the case to the trial court for consideration of the remaining issues. Lampson Lumber Co. v. Caporale, 140 Conn. 679, 102 A.2d 875 (1954).

The judgment is reversed and the case is remanded for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       The owner of the property, Casa-Torch, Inc., is not a party to this appeal.

       The trial court determined that these plaintiffs are all properly aggrieved parties, and there has been no challenge to this determination.

       4.2.3 - Permitted Special Uses
      “Subject to a Special Permit granted by the Commission, in accordance with Section 5.1, the following uses may be authorized:
      * * *
      “(m) Recreational camps, arboretums, and conservation training centers, in which the natural character of the land is substantially preserved, provided located on a site of at least twenty-five (25) acres.”

       The first condition stated: “(1) Limits of Use as specified in Item - 24, Line -1, of the Conservation Commission’s Conditions of Approval, which reads, ‘That limits of use of the property are hereby defined as one single family residence, year round, and one summer day camp to serve no more than 300 people (including staff) five days per week for no more than eight weeks per year, from the hours of 9:00 a.m. to 4:00 p.m. daily during those eight weeks.’ ”

       The second condition stated: “(2) That the applicant be required to bear reasonable expense to improve the intersection of Starrs Ridge Road and Picketts Ridge Road, as determined by the Board of Selectmen and the Town Highway Department.”

       “Rep. Krawiecki: Through you, Mr. Speaker. Representative Luby . . . where does an applicant begin his process. And I don’t think that this bill requires you to commence your application process through Inland Wetlands. . . .
      “Rep. Luby: My understanding ... is it would be a simultaneous process.
      “Rep. Krawiecki: Thank you, Mr. Speaker. That would be my understanding as well.” 30 H.R. Proc., Pt. 30, 1987 Sess., p. 11046.

       The zoning laws contain very specific time limits within which a zoning commission must render a decision. See General Statutes § 8-7d. There is nothing in the language or history of General Statutes §§ 8-3 (g) or 8-3c (b) to indicate that the action of a zoning commission would be stayed pending the outcome of a wetlands appeal. We may not read into these statutes provisions that do not exist. All Brand Importers, Inc. v. Department of Liquor Control, 213 Conn. 184, 195, 567 A.2d 1156 (1989).

       At the same time, we disagree with the trial court’s conclusion that the wetlands decision was the basis of the zoning commission’s decision. The zoning commission did, after all, adopt a second condition of approval involving road improvements that had nothing to do with the wetlands commission’s report.

       The plaintiffs make much of the fact that the applicants obtained only a narrow approval by the zoning commission. The zoning laws make no distinction between a narrow approval and a unanimous one. There is no need to speculate on what the vote on the application would be now, because we conclude that the zoning approval rendered on September 12, 1990, was valid and unaffected by the subsequent invalidity of the wetlands decision.


author: Per Curiam.

text:
    Mary Louise Gallagher v. John L. Gallagher
    (10913)
    O’Connell, Lavery and Freedman, Js.
    Argued October 27
    decision released November 17, 1992

      Allan S. Mall, for the appellant (defendant).

      Mark H. Henderson, for the appellee (plaintiff).
   Per Curiam.

On July 19, 1990, the trial court granted the defendant’s motion to “allocate support of judgment of unallocated alimony and support and terminate alimony.” No appeal was taken from this action of the trial court.

By a motion dated June 28, 1991, more than eleven months after the granting of the motion regarding allocation, the plaintiff filed a motion “to reopen judgment based upon fraud and lack of subject matter jurisdiction.” After a hearing, the trial court found that it had jurisdiction to grant the motion to allocate. No evidence of fraud was offered at this hearing, and the trial court made no finding of fraud. Nevertheless, the trial court opened the judgment on the basis that “[i]t may be that the parties were not fully heard with respect to the issue of the amount of allocation.”

“ ‘Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, any civil judgment . . . rendered in the superior court may not be opened . . . unless a motion to open ... is filed within four months succeeding the date on which it was rendered or passed.’ General Statutes § 52-212a; Practice Book § 326. Unless the parties waive this time limitation, the trial court lacks jurisdiction to entertain a motion to open filed more than four months after a decision is rendered.” Van Mecklenburg v. Pan American World Airways, Inc., 196 Conn. 517, 518, 494 A.2d 549 (1985). “After the expiration of the four month period ... a judgment may not be vacated upon the sole ground that it is erroneous in matter of law, except by a court exercising appellate or revisory jurisdiction, unless such action is authorized by statute or unless the error is one going to the jurisdiction of the court rendering the judgment. . . . The court does have inherent authority, however, at any time to open and modify a judgment rendered without jurisdiction.” (Citation omitted.) Misinonile v. Misinonile, 190 Conn. 132, 134-35, 459 A.2d 518 (1983). In addition, a judgment maybe opened after the expiration of the four month period if the judgment was obtained by fraud. Kenworthy v. Kenworthy, 180 Conn. 129, 131, 429 A.2d 837 (1980).

Here, the trial court made no finding of fraud and found that it in fact had jurisdiction to grant the motion to allocate. The trial court, therefore, lacked jurisdiction to grant the motion to open the judgment.

In addition to granting the motion to open, the trial court awarded counsel fees to the plaintiff to defend this appeal. The defendant amended his appeal to challenge the propriety of this award of counsel fees but did not brief this issue. Consequently, we consider this issue to be abandoned. Daniels v. Warden, 28 Conn. App. 64, 65 n.1, 609 A.2d 1052, cert. denied, 223 Conn. 924, 614 A.2d 820 (1992); Saradjian v. Saradjian, 25 Conn. App. 411, 418, 595 A.2d 890 (1991).

The award of counsel fees is affirmed. The granting of the motion to open is reversed and the matter is remanded with direction to deny the motion.


author: Daly, J.

text:
    Jennifer Lawrence v. New Hampshire Insurance Company
    (10851)
    Daly, Landau and Heiman, Js.

      Argued September 21
    decision released November 17, 1992

      Donald P. Guerrini, for the appellant-appellee (defendant).

      Robert R. Sheldon, for the appellee-appellant (plaintiff).
   Daly, J.

The defendant appeals from the judgment of the Superior Court confirming an arbitration award in favor of the plaintiff. The plaintiff cross appeals from the trial court’s decision to confirm the arbitration award without adding interest retroactively from the date of the arbitration award to the date the trial court confirmed the award. We affirm the judgment of the trial court.

The following facts are relevant to this appeal. During the academic year 1987-88, the plaintiff lived at the university she attended and her permanent residence was in Darien where her mother, Carol Lawrence, lived in an apartment. Just before the plaintiff returned home for spring break on March 25, 1988, she received a telephone call from her mother’s sister, Sherry O’Gata, advising her not to return to Darien. The plaintiff was instructed by her aunt to come instead to Bridgeport to the O’Gata residence where the plaintiff’s aunt lived with her husband, Baron, and their two children. After the plaintiff arrived, she was told that her mother had been hospitalized for injuries resulting from an attack by a male coworker. The plaintiff’s aunt invited her to stay at the O’Gata residence instead of returning to Darien, and the plaintiff moved into the O’Gata residence. She had her own room, and ate her meals at the O’Gata residence. She slept there and received correspondence and telephone calls there. Most of the plaintiff’s personal belongings were kept at her aunt’s house. When the plaintiff’s mother was subsequently discharged from the hospital, she moved directly into the O’Gata home. The plaintiff and her mother intended to reside permanently at the O’Gata home and had no intention of returning to Darien for fear of another attack.

The plaintiff resided continuously at the O’Gata residence until April 8, 1988. On that date, after running errands for her mother, she was injured in an automobile accident involving a 1986 Chrysler station wagon that the plaintiff’s mother was in the process of purchasing from the estate of the plaintiff’s grandfather, Willis C. Lawrence. The driver of the motor vehicle, Robert Putzig, Jr., was at fault for the accident in which the motor vehicle hit a tree. The plaintiff was taken to Norwalk Hospital where she was treated for her resulting injuries. As a result of the collision, the plaintiff incurred medical bills of $206,507.78.

After approximately three months in the hospital, the plaintiff was able to return to the O’Gata home where she remained until late October, 1988, when she and her mother moved to Maryland. During the summer of 1989, they returned to Connecticut briefly to move their furniture out of the Darien apartment. Later that summer, they moved to Florida.

At the time of the collision, the station wagon was insured by The Hartford Insurance Company under a policy with a bodily injury limit of $100,000 per person, the total amount of which was disbursed to the plaintiff because of Putzig’s negligence. The O’Gatas were insured by the defendant under an insurance policy that covered two vehicles and afforded uninsured-underinsured motorist coverage of $500,000 per vehicle up to an aggregate total of $1,000,000. The plaintiff filed a claim against the defendant under this policy. The dispute was brought before a three person arbitration panel as provided by the insurance policy and General Statutes (Rev. to 1987) § 38-175c, now recodified in General Statutes § 38a-336.

By memorandum dated March 8,1991, a majority of the arbitration panel found that the plaintiff was an insured under the O’Gata’s insurance policy and a resident of the O’Gata household. The plaintiff was awarded $650,000 ($750,000 less the $100,000 disbursed to the plaintiff by The Hartford Insurance Company). Subsequently, the defendant moved to vacate the arbitration award under General Statutes § 52-418. The defendant also moved for modification or correction of the award under General Statutes § 52-419. The plaintiff moved to confirm the arbitration award on April 5, 1991. The trial court denied the defendant’s motions, and confirmed the arbitration award without allowing the plaintiff to recover retroactive interest.

On appeal, the defendant claims that (1) the trial court and the arbitration panel improperly concluded that the plaintiff was an insured covered by the O’Gata’s uninsured motorist insurance policy, (2) the trial court and the arbitration panel improperly concluded that the plaintiff was a resident of the O’Gata household under the insurance policy issued to Sherry and Baron O’Gata, and (3) the trial court improperly denied the defendant’s motion for correction or modification of the arbitration panel’s award because it found that the collateral source offset provisions of General Statutes § 52-225a were inapplicable. The plaintiff cross appeals claiming that she was entitled to recover interest on the arbitration award from the date of the arbitration panel’s decision to the date on which the award was confirmed by the trial court.

I

In its first two claims, the defendant challenges two conclusions drawn by the arbitration panel and the trial court with regard to the coverage of the uninsured motorist insurance policy. First, the defendant argues that the plaintiff was not an insured under the O’Gata’s insurance policy. Second, the defendant maintains that the plaintiff was not a resident of the O’Gata household whose injuries were covered by the uninsured motorist insurance policy.

Our Supreme Court has determined that the substantial evidence test is the appropriate standard for the review of factual determinations of an arbitration panel in cases, such as this, involving compulsory arbitration proceedings required by General Statutes § 38-175c. Chmielewski v. Aetna Casualty & Surety Co., 218 Conn. 646, 656, 591 A.2d 101 (1991). The substantial evidence test in the context of arbitration requires that a court determine whether substantial evidence exists in the “record to support the [arbitration panel’s] findings of basic fact and whether the conclusions drawn from those facts are reasonable. . . . Substantial evidence will be found to exist if the . . . record supplies a substantial basis of fact from which the court reasonably can infer the fact in issue.” (Citation omitted; internal quotation marks omitted.) Id., 660-61 n.15.

A

We first address the defendant’s claim that the trial court abused its discretion when it determined that the arbitration panel correctly found that the plaintiff was an insured entitled to coverage under the uninsured motorist insurance policy issued to the O’Gatas. The arbitration panel and the trial court found that the plaintiff did not fall within the “owned motor vehicle” exclusion under the insurance policy.

The defendant relies on the first exception to the definition of “uninsured motor vehicle” in the insurance policy issued to the O’Gatas. This exception provides that an “uninsured motor vehicle” does not include “any vehicle or equipment . . . owned by or furnished or available for your regular use.” The defendant maintains that the station wagon involved in the accident fell within this exception despite the fact that the plaintiff and her mother were not restricted in their use of the station wagon. The defendant maintains that because the plaintiff and her mother were residents of the O’Gata household when they enjoyed such unrestricted use of the station wagon, the station wagon fell within the exception. We disagree.

“Where the language of an insurance policy is clear and unambiguous, the terms of the policy must be given their natural and ordinary meaning.” Horak v. Middlesex Mutual Assurance Co., 181 Conn. 614, 616, 436 A.2d 783 (1980). The policy at issue in this case is not ambiguous.

Clauses of an insurance contract which limit liability for uninsured or underinsured motorists “ ‘must be construed most strongly against the insurer.’ ” Chmielewski v. Aetna Casualty & Surety Co., supra, 675, quoting American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 196, 530 A.2d 171 (1987); Streitweiser v. Middle-sex Mutual Assurance Co., 219 Conn. 371, 375, 593 A.2d 498 (1991). The O’Gata’s insurance policy defined “you” and “your” as referring to: “The ‘named insured’ shown on the declaration; and . . . The spouse if a resident of the same household.” The declaration names both Sherry and Baron O’Gata. It is evident, given the policy’s definition of “you” and “your,” that the exception applies only to a motor vehicle “that is owned by or furnished or available for the regular use of” Baron and Sherry O’Gata. The station wagon was used by the plaintiff and her mother, not by the O’Gatas. On the date of the collision, for example, the plaintiff had been running errands for her mother, not for the O’Gatas. Therefore, substantial evidence existed on the record to support the decision of the arbitration panel.

B

We now turn to the defendant’s claim that the arbitration panel and the trial court improperly determined that the plaintiff was a resident of the O’Gata household whose injuries were covered by the insurance policy. After reviewing the record of the arbitration proceedings, the trial court ruled that “substantial evidence” supported the arbitration panel’s determination that the plaintiff was a resident of the O’Gata household.

Our analysis hinges upon the construction given to “residence of the same household” by our Supreme Court in Griffith v. Security Ins. Co., 167 Conn. 450, 356 A.2d 94 (1975). Our Supreme Court quoted Webster’s Third New International Dictionary which defined “household” as: “ ‘[TJhose who dwell under the same roof and compose a family: a domestic establishment; specif: a social unit comprised of those living together in the.same dwelling place.’ ” Id., 454; Middlesex Mutual Assurance Co. v. Walsh, 218 Conn. 681, 686, 590 A.2d 957 (1991). On the basis of this definition, our courts have determined that there are two criteria that must be met for a person to qualify as a “resident of the same household.” The first requires that we determine whether the evidence in this case was sufficient to establish that the plaintiff had a close, family-type relationship with the members of the O’Gata household. Middlesex Mutual Assurance Co. v. Walsh, supra. The second requires that we consider whether the facts in this case were sufficient to establish that the plaintiff actually lived in the O’Gata home. Id.

The defendant does not dispute that the plaintiff is related to the members of the O’Gata household. Instead, the defendant contends that the plaintiff does not satisfy the second criteria that she actually lived in the O’Gata home. Our determination as to the plaintiffs status as a resident of her aunt’s household rests on a conglomeration of factors. Id., 687. While the intent of the plaintiff to reside in the O’Gata home is one factor to be considered, it is not the controlling one. Id. We must also consider the frequency of the plaintiff’s contact with the members of the O’Gata household. Id., 686-87.

Here, the plaintiff and her mother intended to live at the O’Gata home permanently to avoid any possible confrontation with her mother’s attacker. Furthermore, the plaintiff had frequent contact with the O’Gata family. The plaintiff took her meals with the O’Gata family. She slept in a room she maintained on the third floor where she kept most of her personal belongings. The plaintiff received her mail at the O’Gata residence as well. After the plaintiff was hospitalized, she returned to the O’Gata residence with the intent to remain there. Therefore, we agree with the trial court’s finding that substantial evidence supported the arbitration panel’s decision that the plaintiff was a resident of the O’Gata household covered under the uninsured motorist insurance policy when the collision occurred.

II

The defendant also claims that the trial court improperly failed to offset the arbitration award under General Statutes § 52-225a by the amount paid by collateral sources to the plaintiff. On April 29,1991, the defendant filed a motion for modification or correction under General Statutes § 52-419 (a) (l) in which it requested that the court reduce the award by the amount of collateral source payments under § 52-225. The trial court found that § 52-225a was inapplicable to this case.

“[Wjhere judicial review of compulsory arbitration proceedings required by § 38-175c (a) (1) is undertaken under General Statutes § 52-418, the reviewing court must conduct a de novo review of the interpretation and application of the law by the arbitrators.” American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 191, 530 A.2d 171 (1987); Bodner v. United Services Automobile Assn., 222 Conn. 480, 486, 610 A.2d 1212 (1992). “Although the language of § 52-419 (a) can be read narrowly, the court’s role of reviewing the legal determinations of arbitrators de novo and their factual determinations under the substantial evidence standard requires that the statute be given a more expansive meaning . . . .” Chmielewski v. Aetna Casualty & Surety Co., supra, 679. The trial court has the authority to modify the arbitration award to reflect the arbitration panel’s factual findings and proper legal determinations to give effect to “the intent of the award as it should have been rendered under the law and to promote justice between the parties. General Statutes § 52-419 (b). Otherwise, the legislature’s purposes in entrusting uninsured motorist coverage matters to compulsory arbitration under § 38-175e would be frustrated.” Id.

Our Supreme Court has set forth three factors that we must consider to determine whether a trial court possessed the authority to modify an arbitration panel’s decision pursuant to General Statutes § 52-419. Id., 679-80. First, we must determine whether the issue of collateral source offsets was considered by the arbitration panel. Id., 679. Next, we must consider whether either party contested the offset in the trial court. Id., 679-80. Finally, we must determine whether the modifications required only undisputed mathematical calculations allowed by § 52-419. Id., 680. We find that the trial court properly determined that it did not have the authority to modify the arbitration award.

The arbitration clause of the O’Gata’s insurance policy is the submission that defined that arbitration panel’s authority. The parties agreed in the insurance policy that the arbitration panel had the authority to reduce the award by amounts paid by various specified sources to the plaintiff. Accordingly, the arbitration panel reduced the award by the $100,000 paid to the plaintiff by The Hartford Insurance Company for the negligence of Putzig. No other offset was brought before the arbitration panel for its consideration.

Both parties agreed pursuant to General Statutes § 52-416 that the arbitration panel’s authority over this case would end thirty days after the arbitration panel convened to decide the outcome of this case. The panel convened on February 18, 1991. Therefore, the period ended on March 18, 1991. Within this time period, the defendant did not submit any request for collateral source offsets. Thus, the first criterion requiring that the arbitration panel consider the offsets by which the defendant moved to reduce the award was not satisfied because the arbitration panel did not possess the authority to consider them.

As to the second factor, the plaintiff, before the trial court, contested the award reduction sought by the defendant in its motion for modification or correction of the arbitration award. In its motion, the defendant requested that the award be reduced by collateral source offsets that were not before the arbitration panel when it had authority to determine the matter. The trial court could not modify the award to reflect the factual findings made by the arbitration panel because the motion for modification requested relief that was not within the factual findings of the arbitration panel. See Chmielewski v. Aetna Casualty & Surety Co., supra, 679. The defendant’s motion did not satisfy the third criterion because the defendant’s motion for modification did not involve “undisputed mathematical calculations,” which could have been determined based on the submissions and findings of the arbitration panel, as was the case in Chmielewski v. Aetna Casualty & Surety Co., supra. The trial court did not have the authority under General Statutes § 52-419 (a) (1) to reduce the plaintiffs arbitration award by collateral source offsets in accordance with General Statutes § 52-225a.

Ill

In her cross appeal, the plaintiff claims that she was entitled to recover interest of $44,163.84 on the arbitration award that accrued under General Statutes § 37-3a from the date of the award on March 13,1991, to the date the trial court rendered judgment on November 15, 1991.

General Statutes § 37-3a confers on the trial court the discretion “to award prejudgment interest on an arbitration award retroactively to some date prior to the date of the trial court’s judgment affirming the award. . . . Implicit in that determination is the conclusion that the prior date may be the date of the arbitration award.” (Citation omitted.) Id., 675-76. General Statutes § 37-3a allows recovery of interest accrued where the award has been improperly withheld. We will not reverse the trial court’s decision without a clear abuse of discretion. Id., 676. “In determining whether the trial court abused its discretion, this court must make every reasonable presumption in favor of [the trial court’s] action.” (Internal quotation marks omitted.) Walton v. New Hartford, 223 Conn. 155, 169, 612 A.2d 1153 (1992); 1 B. Holden & J. Daly, Connecticut Evidence (2d Ed. 1988) § IOC (2), p. 35.

It is within the trial court’s discretion to determine whether interest must be paid for wrongfully withholding the award, and, if so, the amount thereof. Middle-sex Mutual Assurance Co. v. Walsh, supra, 701-702; Metcalfe v. Talarski, 213 Conn. 145, 160, 567 A.2d 1148 (1989). We must not determine only whether the money is payable but also “ ‘whether the detention of the money is or is not wrongful under the circumstances.’ ” Middlesex Mutual Assurance Co. v. Walsh, supra, 702.

The record supports the trial court’s conclusion that the award was not wrongfully withheld by the defendant. Therefore, we cannot say that the trial court abused its discretion in deciding not to award prejudgment interest under § 37-3a.

The judgment is affirmed.

In this opinion the other judges concurred.

       The spring break lasted until April 8.

       General Statutes (Rev. to 1987) § 38-175c (a) (1) provides: “Every such policy shall provide insurance, herein called uninsured motorist coverage, in accordance with such regulations, with limits for bodily injury or death not less than those specified in subsection (a) of section 14-112, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles and underinsured motor vehicles and insured motor vehicles, the insurer of which becomes insolvent prior to payment of such damages, because of bodily injury, including death resulting therefrom, provided each insurer licensed to write automobile liability insurance in this state shall provide such uninsured motorists coverage with limits requested by the named insured upon payment of the appropriate premium, but such insurer shall not be required to provide such coverage with limits in excess of the limits of the bodily injury coverage of such policy issued to such named insured. . . . Every such 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. With respect to any claim submitted to arbitration on or after October 1, 1983, the arbitration proceeding shall be conducted by a single arbitrator if the amount in demand is forty thousand dollars or less or by a panel of three arbitrators if the amount in demand is more than forty thousand dollars.”

       Under the insurance policy, a majority of the panel was required to resolve this dispute. One arbitrator dissented in this case.

       General Statutes § 52-225a provides: “(a) In any civil action, whether in tort or in contract, wherein the claimant seeks to recover damages resulting from (1) personal injury or wrongful death occurring on or after October 1, 1987, or (2) personal injury or wrongful death, arising out of the rendition of professional services by a health care provider, occurring on or after October 1, 1985, and prior to October 1, 1986, if the action was filed on or after October 1, 1987, and wherein liability is admitted or is determined by the trier of fact and damages are awarded to compensate the claimant, the court shall reduce the amount of such award which represents economic damages, as defined in subdivision (1) of subsection (a) of section 52-572h, by an amount equal to the total of amounts determined to have been paid under subsection (b) of this section less the total of amounts determined to have been paid under subsection (c) of this section, except that there shall be no reduction for (1) a collateral source for which a right of subrogation exists and (2) that amount of collateral sources equal to the reduction in the claimant’s economic damages attributable to his percentage of negligence pursuant to section 52-572h.
      “(b) Upon a finding of liability and an awarding of damages by the trier of fact and before the court enters judgment, the court shall receive evidence from the claimant and other appropriate persons concerning the total amount of collateral sources which have been paid for the benefit of the claimant as of the date the court enters judgment.
      “(c) The court shall receive evidence from the claimant and any other appropriate person concerning any amount which has been paid, contributed, or forfeited, as of the date the court enters judgment, by, or on behalf of, the claimant or members of his immediate family to secure his right to any collateral source benefit which he has received as a result of such injury or death.”

       Under the terms of the insurance policy, “Family member” is defined as “a person related to you by blood, marriage or adoption who is a resident of your household.”

       The defendant claimed below that it submitted its motion for modification or correction of the award under the collateral source provisions of General Statutes § 52-225a to the court clerk’s office for filing on March 27, 1991. The clerk returned the motion, however, because the defendant had failed to produce an order to show cause. The defendant’s motion for modification was filed on April 29, 1991.

       General Statutes § 52-419 (a) (1) provides: “If there has been an evident material miscalculation of figures or an evident material mistake in the description of any person, thing or property referred to in the award,” the court shall modify or correct the award. Section 52-419 (b) provides: “The order shall modify and correct the award, so as to effect the intent thereof and promote justice between the parties.”

       In Chmielewski v. Aetna Casualty & Surety Co., 218 Conn. 646, 656, 591 A.2d 101 (1991), the Supreme Court determined that the trial court properly modified the arbitration award to account for money disbursed by the tortfeasor’s insurance policy and that the trial court should have modified the arbitration award to account for the plaintiff’s comparative negligence. “Both these issues were decided by the arbitrators, neither was contested by the parties in the trial court, and they required only undisputed mathematical calculations. The court had ample authority under § 52-419 (a) (1), as we have construed it, to include those calculations in its modification.” Id., 679-80.

       The arbitration clause provides:
      “A. If we and an ‘insured’ do not agree:
      1. Whether that person is legally entitled to recover damages under this Part; or
      2. As to the amount of damages; either party may make a written demand for arbitration. In this event, each party will select an arbitrator. The two arbitrators will select a third. If they cannot agree within SO days, either may request that selection be made by a judge of a court having jurisdiction.
      “B. Each party will:
      1. Pay the expenses it incurs; and
      2. Bear the expenses of the third arbitrator equally.
      “C. Unless both parties agree otherwise, arbitration will take place in the county in which the ‘insured’ lives. Local rules of law as to procedure and evidence will apply. A decision agreed to by two of the arbitrators will be binding as to:
      1. Whether the ‘insured’ is legally entitled to recover damages; and
      2. The amount of damages. . . .”

       The policy provides:
      “B. Any amounts otherwise payable for damages under this coverage shall be reduced by all sums:
      1. Paid because of the ‘bodily injury’ by or on behalf of persons or organizations who may be legally responsible. . . .
      2. Paid or payable because of the ‘bodily injury’ under any of the follow-
      ing or similar law:
      a. workers’ compensation law; or
      b. disability benefits law.
      “C. Any payment under this coverage will reduce any amount that person is entitled to recover for the same damages . . . .”

       General Statutes § 52-416 provides: “(a) If the time within which an award is rendered has not been fixed in the arbitration agreement, the arbitrator or arbitrators or umpire shall render the award within thirty days from the date the hearing or hearings are completed, or, if the parties are to submit additional material after the hearing or hearings, thirty days from the date fixed by the arbitrator or arbitrators or umpire for the receipt of the material. An award made after that time shall have no legal effect unless the parties expressly extend the time in which the award may be made by an extension or ratification in writing.
      “(b) The award shall be in writing and signed by the arbitrator or arbitrators, or a majority of them, or by the umpire. Written notice of the award shall be given to each party.”


text:
    In re David M.

    (11126)
    Foti, Heiman and Cretella, Js.
    Argued September 30
    decision released November 17, 1992

      Sara R. Martin, for the appellant (respondent).

      Cathleen Mulligan Edwards, state’s advocate, for the appellee (petitioner).

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 4166B.2, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Foti, J.

This is an appeal from an order of the Superior Court for Juvenile Matters at New Haven, transferring the respondent, David M., to the regular criminal docket of the Superior Court to be tried and, if convicted, sentenced as an adult. The respondent alleges that the court improperly ordered his transfer in that the evidence was insufficient to establish probable cause (1) that he aided in the commission of the murder, and (2) that the death was caused with the requisite intent. He further claims that the court improperly determined that a finding of probable cause for his transfer was not precluded by a finding made by another trial court that probable cause did not exist with respect to an adult codefendant.

On June 12, 1991, the state’s advocate filed a motion to transfer the respondent to the regular docket pursuant to General Statutes § 46b-127. David M. was arrested on a warrant and charged in a petition of delinquency with criminal liability for murder in violation of General Statutes §§ 53a-8 and 53a-54a for an incident that occurred on May 8,1991. At that time, David M. was fifteen years of age. After a full evidentiary hearing, the motion of the state’s advocate was granted. The court found that there was “probable cause that David M. intentionally aided the shooters . . . and that in so aiding, he intended to commit the crime of murder.”

The court found the following facts. On May 8, 1991, at approximately 7:30 p.m., a group including David M. drove in two cars to the corner of Winthrop and Davenport Avenues in New Haven. The first car was an old gray Mazda station wagon; the second was an old brown Chevrolet Malibu Classic. David M. was the driver of the gray car, which also contained a passenger. The brown car was driven by “Chuito” and contained a passenger called “Puto.” At the corner of Winthrop and Davenport Avenues, the group encountered the victim, Elvis Crnkovic, and his brother, Paul Crnkovic, who were playing basketball at a hoop on an abandoned store across the street from their home. The brothers played there almost every day.

Trouble had existed between Paul Crnkovic and David M. for about a year. Approximately two weeks earlier, David M. had assaulted Paul Crnkovic in front of a courthouse. There had also been a shooting in front of a drug store involving Paul Crnkovic and the “Liberty Street” gang, of which David M. was a member. Earlier in the day on May 8,1991, charges against Paul Crnkovic, who had been arrested for that shooting, were dropped.

When the brown car was about nine or ten feet from the victim and his brother, and the gray car was about eleven or twelve feet from them, Paul Crnkovic observed a gun being held out of the passenger side window of the brown car. Two shots were fired, and Elvis Crnkovic screamed. At that time, the cars were moving very slowly. The Crnkovic brothers then began running down the sidewalk parallel to Davenport Avenue away from the corner, toward Kossuth Street. As Paul Crnkovic ran, he looked back to see the passenger shooting from the gray car. As many as nine shots were fired from both cars in the boys’ direction. The passenger in the gray car was firing; the driver, David M., was not.

After both cars had left the scene, Paul Crnkovic turned into an alley. Elvis Crnkovic, who had been shot once in the back, was lying face down on the sidewalk along Davenport Avenue. The trial court found that the shot that killed him apparently was fired from the brown car.

I

The respondent claims that the evidence presented at the transfer hearing was insufficient to show that he aided the principal in causing the death of Elvis Crnkovic, and failed to show that the death was caused with intent to kill as opposed to less culpable mental states.

On appeal, our function is to determine whether the trial court’s decision that probable cause existed was clearly erroneous. Practice Book § 4061; In re Lloyd W., 28 Conn. App. 608, 611, 611 A.2d 461 (1992). “[WJhere the factual basis of the court’s decision is challenged we must first determine whether the facts set out in the . . . decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous. Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980). . . . In re Ralph M., 211 Conn. 289, 316, 559 A.2d 179 (1989).” (Internal quotation marks omitted.) In re Lloyd W., supra. The quantum of evidence required to establish probable cause is less than that required to establish proof beyond a reasonable doubt at trial. It is more than mere suspicion but substantially less than that required for conviction. In re Keijam T., 221 Conn. 109, 115-16, 602 A.2d 967 (1992). Moreover, in viewing this evidence and the permissible inferences drawn from it to determine whether the decision was clearly erroneous, we do so in the light most favorable to sustaining the trial court’s determination of probable cause. Id., 116.

“In the present case, because the respondent was charged as an accessory to murder under §§ 53a-8 and 53a-54a, the court was required to determine whether there was probable cause to believe that the respondent ‘intended both to aid the principal and to commit the underlying [crime of murder].’ ” (Emphasis in original.) In re Ralph M., supra. A finding of probable cause requires “only a ‘determina[tion] [of] whether the government’s evidence would warrant a person of reasonable caution to believe’ that the respondent acted with the intent to kill another person.” Id., 316-17. The trial court here specifically found that probable cause had been established that the respondent “intentionally aided the shooters in the brown and gray cars and that in so aiding, he intended to commit the crime of murder.”

The respondent argues that the evidence merely established that he was in a car other than that from which the fatal bullet was fired, and that he did not shoot from the car that he was driving. The evidence, he contends, did not show that he acted in concert with the occupants of the other car, or that the occupants of both cars came to the neighborhood together with the intent to murder. Thus, he claims that the evidence was insufficient to establish probable cause that he aided and abetted the person who fired the fatal shot, or that he had the requisite intent to murder anyone. We disagree.

“Whether a person who is present at the commission of a crime aids or abets its commission so as to be criminally liable depends on the circumstances surrounding his presence there and his conduct while there.” State v. Crump, 201 Conn. 489, 495, 518 A.2d 378 (1986). The record is clear that the respondent was not passively acquiescent nor acting in an innocent fashion. See State v. Haddad, 189 Conn. 383, 399, 456 A.2d 316 (1983). There was sufficient circumstantial evidence to establish that the occupants of the two cars knew each other and were acting in concert. The evidence shows that the two cars were operated in such a way as to “cut off” the victim and his brother from possible avenues of escape. The cars arrived together and left together, and the respondent had full control of the vehicle that he was operating so as to slow down, speed up, direct it to a place where shots could be fired by the passenger, or drive off.

There is, of course, “no legal distinction between direct and circumstantial evidence so far as probative force is concerned.” State v. Wilson, 178 Conn. 427, 434, 423 A.2d 72 (1979). Further, in a case involving a substantial amount of circumstantial evidence, the cumulative impact of a multitude of facts may give rise to probable cause. State v. Perez, 183 Conn. 225, 227, 439 A.2d 305 (1981). It is entirely reasonable for the trier of the facts to find that the criminal activity of the occupants of both cars did not happen coincidentally. As the trial court correctly stated, under the circumstances of this case “[i]t should make no difference legally from which car the fatal shots were fired that night as these facts show that the other three were acting together aiding whoever fired the fatal shot.” The evidence was sufficient to support a finding of probable cause that the respondent aided the principal in causing death.

The respondent also contends that the evidence was insufficient to establish probable cause (1) that the shot that killed the victim was fired by one specifically intending to kill rather than to injure or one with reckless indifference or (2) that he himself had the specific intent to kill rather than a lesser mental state.

A factfinder may infer an intent to kill from circumstantial evidence; In re Lloyd W., supra, 611-12; including the manner in which the cars were operated, the number of shots fired, and the events leading to and immediately following the death. See State v. Bewry, 26 Conn. App. 242, 245-47, 600 A.2d 787 (1991), cert. denied, 221 Conn. 911, 602 A.2d 11 (1992). The court stated that implicit in its findings was that “an agreement existed among participants in both cars to drive to that area and kill Paul Crnkovic but also equally implicit in the findings is that David M.’s conduct evinced more than mere connection with a plan or conspiracy.”

The evidence showed that the respondent and Paul Crnkovic, the probable intended victim, had fought and had feelings of ill will for each other for some time prior to the shooting. The evidence further showed that the respondent drove someone who was holding a gun and participated while that passenger fired repeatedly at close range at the Crnkovic brothers. The respondent maneuvered his vehicle while someone in another car also shot at the victim and the victim’s brother. According to Paul Crnkovic, the respondent was the only person in either automobile who had a reason to shoot at him.

We conclude that the evidence was sufficient to support a finding that the respondent possessed the requisite intent to aid in the murder, taking into account all of the facts and circumstances that existed.

II

In his final claim, the respondent argues that a finding of probable cause was precluded not only because there was insufficient evidence at the transfer hearing, but also because evidence adduced at another probable cause hearing for an adult on the regular criminal docket, conducted pursuant to General Statutes § 54-46a, resulted in a finding of no probable cause. The respondent contends that, while those proceedings were not brought to the attention of the trial court, we should take judicial notice of the file and reverse the order of transfer.

There is no question that the trial court may take judicial notice of the file in another case, whether or not the other case is between the same parties. Karp v. Urban Development Commission, 162 Conn. 525, 527, 294 A.2d 633 (1972); Guerriero v. Golasso, 144 Conn. 600, 605, 136 A.2d 497 (1957). “[I]t is understood that ‘matter[s] which it is claimed the court should judicially notice should ordinarily be called to its attention by a party seeking to take advantage of it in the course of presenting evidence in the case so that, if there is ground upon which it may be contradicted or explained, the adverse party will be afforded an opportunity to do so ... .’ Nichols v. Nichols, 126 Conn. 614, 622, 13 A.2d 591 (1940).” Caccavale v. Hospital of St. Raphael, 14 Conn. App. 504, 509, 541 A.2d 893, cert. denied, 208 Conn. 812, 545 A.2d 1107 (1988). Judicial notice may, however, be taken at any stage of the proceedings including on appeal. State v. Allen, 205 Conn. 370, 382, 533 A.2d 559 (1987). Nevertheless, we decline to do so here.

Even if the trial court had been made aware of the proceedings in which no probable cause was found, it would not have been bound by that decision under the doctrine of res judicata, since the parties were not the same. Fox v. Schaeffer, 131 Conn. 439, 448, 41 A.2d 46 (1944). Further, the evidence and witnesses in that proceeding may have been different from those presented at the respondent’s transfer hearing. For the same reason, this court’s taking judicial notice of the decision of another hearing would serve no purpose in determining whether the court’s finding of probable cause here was clearly erroneous. The trial court had to determine whether the evidence presented before it, together with the inferences reasonably and logically drawn from that evidence, was sufficient for a finding of probable cause; In re Keijam T., supra, 125; it could not rely on matters not presented or give weight to the conclusions in another action involving different parties.

On the basis of the entire record, we cannot say that the court’s finding of probable cause was clearly erroneous.

The order of transfer is affirmed.

In this opinion the other judges concurred.

       General Statutes § 46b-127, prior to July 1, 1991, provided: “The court shall transfer to the regular criminal docket of the superior court from the docket for juvenile matters: (1) Any child referred for the commission of a murder under sections 53a-54a to 53a-54d, inclusive, provided any such murder was committed after such child attained the age of fourteen years; (2) any child referred for the violation of any provision of title 53a which is designated as a class A felony, other than murder, if such violation was committed after such child attained the age of fourteen years, provided such child has previously been adjudicated a delinquent at any age for a violation of any provision of title 53a, which at the time of such violation was designated a class A felony; or (3) any child referred for the violation of any provision of title 53a which is designated as a class B felony, provided such violation was committed after such child attained the age of fourteen years, and further provided such child has previously been adjudicated delinquent for two violations of any provision of title 53a, which at the time of such violations were designated a class A or B felony. No such transfer shall be valid unless, prior thereto, the court has made written findings, after a hearing, that there is probable cause to believe that the child has committed the act for which he is charged. At such hearing, the child shall have the right to counsel and to confront the witnesses against him. The procedures provided in section 54-46a shall apply at such hearing, except that the child shall have the right to move to suppress any admission made by him on the ground that it was obtained in violation of the provisions of subsection (a) of section 46b-137 and to obtain discovery of exculpatory information. An order by the court under this section transferring a child from the docket for juvenile matters to the regular criminal docket of the superior court shall be a final judgment for purposes of appeal. Upon the effectuation of the transfer, such child shall stand trial and be sentenced, if convicted, as if he were sixteen years of age. Such child shall receive credit against any sentence imposed for time served in a juvenile facility prior to the effectuation of the transfer. A child who has been transferred may enter a guilty plea to a lesser offense if the court finds that such plea is made knowingly and voluntarily. Any child transferred to the regular criminal docket who pleads guilty to a lesser offense shall not resume his status as a juvenile regarding said offense. If the action is dismissed or nolled or if such child is found not guilty of the charge for which he was transferred, the child shall resume his status as a juvenile until he attains the age of sixteen years.”

       General Statutes § 53a-8 provides: “A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender.”
      General Statutes § 53a-54a (a) provides: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception; except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime.”

       The execution of the transfer order has been stayed pending this appeal. See In re Bromell G., 214 Conn. 454, 572 A.2d 352 (1990).

       General Statutes § 54-46a (a) provides in pertinent part: “No person charged by the state, who has not been indicted by a grand jury prior to May 26, 1983, shall be put to plea or held to trial for any crime punishable by death or life imprisonment unless the court at a preliminary hearing determines there is probable cause to believe that the offense charged has been committed and that the accused person has committed it. The accused person may knowingly and voluntarily waive such preliminary hearing to determine probable cause.”


text:
    Centerbank v. Thomas R. Connell et al.
    (10844)
    Dupont, C. J., Daly and Foti, Js.
    Argued September 29
    decision released November 17, 1992

      Frederick J. Miano, for the appellants (named defendant et al.).

      Thomas A. Kaelin, with whom, on the brief, was William T. Blake, Jr., for the appellee (plaintiff).
   Daly, J.

This appeal arises from the trial court’s denial of the motion to reopen the judgment of foreclosure by sale filed by the defendant property owners, Thomas and Nancy Connell. The defendants claim that the trial court improperly balanced the equities of this case when it denied their “motion to reopen judgment and set a new sale date.”

The plaintiff, Centerbank, instituted this foreclosure action against the defendants, Thomas R. Connell and Nancy Flynn Connell, seeking to foreclose the mortgage it holds on the defendants’ property in Essex. On January 23, 1991, the plaintiff’s motion for foreclosure by sale was granted by the trial court, R. O’Connell, J., which set the sale date for May 25, 1991.

Because the defendants filed a petition for bankruptcy under chapter 11 of the United States Bankruptcy Code, a stay on the foreclosure proceeding was subsequently imposed. On August 22, 1991, however, the bankruptcy court, Krechevesky, J., granted the plaintiff relief from the automatic stay. Thereafter, the trial court opened the judgment of foreclosure by sale on September 16, 1991, determining that the defendants owed $614,953.43 on the mortgage debt. The court set a new sale date for December 14, 1991, giving the defendants eighty-eight of the ninety days they had requested to allow them to retain a new attorney to replace their previous bankruptcy attorney who the defendants felt was inadequate.

On October 28, the defendants filed their motion to . reopen the judgment and set a new sale date in which they explained that their bankruptcy stay had been terminated because of the inadequate assistance their bankruptcy attorney had rendered. Accordingly, the defendants requested another extension, this time for 180 days, to allow them to refile a bankruptcy petition and to secure adequate representation. The plaintiff filed a motion in opposition arguing that any further delay in selling the property would further injure the plaintiff given that no equity remained in the property. On November 22, 1991, the trial court denied the defendants’ motion to reopen judgment. This appeal ensued.

“A motion to open a judgment of strict foreclosure is addressed to the discretion of the trial court; see General Statutes § 49-15; and unless that discretion was abused or was based upon some error in law, the denial of the motion must stand. . . .” (Citations omitted; internal quotation marks omitted.) New Haven Savings Bank v. Gurland, 3.Conn. App. 508, 508-509, 489 A.2d 1070 (1985). “Thus, [t]he determination of what equity requires in a particular case, the balancing of the equities, is a matter for the discretion of the trial court.’ Kakalik v. Bernardo, 184 Conn. 386, 395, 439 A.2d 1016 (1981).” (Internal quotation marks omitted.) Con necticut Bank & Trust Co. v. Winters, 26 Conn. App. 317, 321, 600 A.2d 1046 (1991), cert. granted, 221 Conn. 911, 602 A.2d 10 (1992). “On appellate review, therefore, the ultimate issue is whether the trial court could reasonably conclude as it did ... or whether, according to recognized principles of equity, abuse of discretion is manifest or an injustice appears to have been done.” (Citations omitted; internal quotation marks omitted.) Reynolds v. Ramos, 188 Conn. 316, 321, 449 A.2d 182 (1982). “This court ‘must make every reasonable presumption in favor of the trial court’s decision’ when reviewing a claim of abuse of discretion. Yanow v. Teal Industries, Inc., 196 Conn. 579, 583, 494 A.2d 573 (1985).” Connecticut Bank & Trust Co. v. Winters, supra, 320.

In deciding whether to extend the sale date further, the trial court had before it the defendants’ claims with respect to the inadequacy of their bankruptcy attorney and their need for a 180 day extension to refile their bankruptcy petition. The trial court stated that in making its determination on the defendants’ motion, it would consider the whole file of this case. There is no indication that it did not consider the defendants’ claims when it balanced the equities of this case. Granting another extension to the defendants would have caused great injury to the plaintiff because no equity remained in the property and the interest on the mortgage debt continued to accrue. Therefore, on the basis of the record, we find that the trial court did not abuse its discretion in denying the defendants’ motion to reopen the judgment.

The judgment is affirmed and the case is remanded for the purpose of setting a new sale date.

In this opinion the other judges concurred.

       The court granted an eighty-eight day extension instead of a ninety day extension to guarantee that the property would be sold on a Saturday instead of a Monday.

       The appraised value of the property is $600,000. On November 12, 1991, in its objection to the defendants’ motion to reopen, the plaintiff claimed that the amount owed to Centerbank under the mortgage note was $661,304.67. Other encumbrances on the property included two mortgages held by Old Saybrook Bank and Trust, each worth $75,000, and a federal tax lien worth $61,325.91.


author: Heiman, J.

text:
    State of Connecticut v. Paul G. Royce
    (10959)
    Dupont, C. J., Heiman and Freedman, Js.
    Argued September 29
    decision released November 17, 1992

      Julia DiCocco Dewey, assistant state’s attorney, with whom, on the brief, were John Redway, state’s attorney, and Russell Zetner, assistant state’s attorney, for the appellant (state).

      Anthony C. Polvino, for the appellee (defendant).
   Heiman, J.

The state, with the permission of the trial court, appeals from the trial court’s granting of its motion to dismiss, filed by the state after the trial court granted the defendant’s motion to suppress the results of a blood alcohol test. In his motion to suppress, the defendant claimed that the test was taken as a result of an arrest not supported by probable cause. The trial court agreed and granted the defendant’s motion to suppress. Claiming that it would be severely handicapped in presenting its case without the suppressed evidence, the state moved for a dismissal under State v. Ross, 189 Conn. 42, 51, 454 A.2d 266 (1983), and for permission to appeal under General Statutes § 54-96. The trial court granted both motions and this appeal followed.

The state claims that the trial court improperly determined that the arresting officer lacked probable cause to arrest the defendant and, thus, incorrectly granted the motion to suppress. We agree with the state’s contention and reverse the judgment of the trial court.

The following facts are necessary to resolve this appeal. On August 10, 1991, at about 1:30 a.m., state police trooper Frank Sawicki was patrolling Route 166 in the town of Old Saybrook. Sawicki, who had been a police officer for about two and one-half years at the time of this arrest, had received specialized training in administering field sobriety tests and had previously investigated approximately 100 cases of operating a vehicle while under the influence of liquor. While travel-ling southbound on Route 166, he observed a northbound vehicle swerve into the southbound lane of travel, causing two southbound vehicles to take evasive action. The vehicle travelled back into the northbound lane. The officer turned his cruiser around and pursued the northbound vehicle, stopping it as it entered the 1-95 westbound ramp.

Upon approaching the vehicle, Sawicki asked the defendant, Paul G. Royce, who had been operating the vehicle, to produce his operator’s license and the vehicle’s registration. The officer noted an odor of alcohol emanating from the vehicle. He also observed that the defendant’s eyes were red and glassy, a condition that the officer had previously observed in persons whom he had apprehended for driving while under the influence of liquor. He noticed that the defendant’s eyes appeared to be slightly glazed and perceived that the defendant moved very carefully and deliberately as he tried to retrieve his license and registration. The officer previously observed this kind of slow and deliberate behavior in persons under the influence of liquor.

Sawicki asked the defendant if he had been drinking and the defendant responded that he had consumed one beer. He then asked the defendant to exit his vehicle. The officer administered certain field sobriety tests. Officer Sawicki administered a horizontal gaze nystagmus test. He found the presence of an involuntary nystagmus, or jerkiness, in the motion of the defendant’s eye as it followed an object, in this case, a small penlight. He requested that the defendant walk along a straight line in a heel-to-toe fashion for nine steps, turn, pivoting on his leading foot, and return to the point of departure. The officer noted that the defendant hesitated in his turning and returning and that the defendant missed heel-to-toe contact on steps two and three. He also saw that the defendant departed from a straight line in that same area. He requested that the defendant stand on one leg. The officer observed the defendant touch his raised foot to the ground on three separate occasions prior to reaching a count of thirty, as he had been asked. Sawicki also requested that the defendant recite the alphabet which he accomplished without incident.

On the basis of his observations, the officer concluded that he had probable cause to believe that the defendant was under the influence of intoxicating liquor. The officer placed the defendant under arrest for the crime of operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes § 14-227a and for the motor vehicle violation of failure to drive in an established lane in violation of General Statutes § 14-236. Subsequent to this arrest, the defendant was required to give breath samples for the purpose of determining his blood alcohol level. The defendant sought to suppress the results of these tests alleging he was arrested without probable cause.

In the course of the hearing before the trial court, the defendant introduced expert testimony to support his claim that a horizontal gaze nystagmus can be caused by factors other than the ingestion of alcohol. His expert testified that as much as 15 percent of the total population had horizontal gaze nystagmus as a naturally occurring condition. Further, the expert testified that he examined the defendant on that morning and he concluded that the defendant exhibited a slight nystagmus on examination.

At the completion of the hearing, the trial court granted the defendant’s motion to suppress. Subsequently, the state filed a motion for articulation with which the trial court orally complied. In its articulation, the trial court set forth the legal standard that it applied to resolving the issue of probable cause. It also responded that it considered the testimony of the defendant’s expert in applying the probable cause standard “with regard to trying to determine what weight it should give to the testimony of the trooper.” On that issue, the trial court stated: “Under the circumstances that existed, again mindful of the weather conditions, the fact that the defendant was wearing glasses, and other relevant criteria, as will be reflected in the record, the court was not inclined to give very much credence to the trooper’s testimony in that respect. And the court, recognizing that Dr. O’Brien’s testimony was ‘after the fact’ and that the officer’s judgment as to whether or not there was probable cause was dependent upon what was known to him at the time, the court nevertheless felt that it was proper and appropriate for the court to take into account Dr. O’Brien’s testimony.” In response to the state’s request for articulation, the trial court conceded that it had considered evidence that showed conditions that existed subsequent to the arrest of the defendant in determining the existence of probable cause.

We agree with the state’s contention that the trial court improperly concluded that the officer lacked probable cause for the arrest of the defendant.

We are obligated to review this case under the clearly erroneous standard. In re Lloyd W., 28 Conn. App. 608, 611, 611 A.2d 641 (1992); State v. Gaumond, 27 Conn. App. 461, 463, 606 A.2d 735 (1992). Thus, we must determine whether the court’s factual findings are clearly erroneous and whether its conclusion is legally and logically consistent. State v. Gaumond, supra; see State v. Whitfield, 26 Conn. App. 103, 109-10, 599 A.2d 21 (1991).

Probable cause exists when there are “facts and circumstances within the officer’s knowledge, and of which he has trustworthy information, sufficient to justify the belief of a reasonable person that an offense has been or is being committed.” (Internal quotation marks omitted.) State v. Martin, 2 Conn. App. 605, 612B, 482 A.2d 70 (1984), cert. denied, 195 Conn. 802, 488 A.2d 457, cert. denied, 472 U.S. 1009, 105 S. Ct. 2706, 86 L. Ed. 2d 721 (1985). “The probable cause test then is an objective one.” State v. Copeland, 205 Conn. 201, 213, 530 A.2d 603 (1987). While probable cause requires more than mere suspicion; In re Keijam T., 221 Conn. 109, 115-16, 602 A.2d 967 (1992); In re Lloyd W., supra; the line between mere suspicion and probable cause is often fine and “that line necessarily must be drawn by an act of judgment formed in the light of the particular situation and with account taken of all the circumstances.” (Internal quotation marks omitted.) State v. Marra, 222 Conn. 506, 513, 610 A.2d 1113 (1992); In re Keijam T., supra, 116. “The process [of determining probable cause] does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common-sense conclusions about human behavior; jurors as factfinders are permitted to do the same — and so are law enforcement officers. Finally, the evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.” (Internal quotation marks omitted.) State v. Martin, supra, 613.

Thus, it was the trial court’s responsibility to assess the information that the police officer had, and, on the basis of that information, determine whether that information was sufficient for the police officer to have determined the existence of probable cause. Id. The trial court’s role was to determine whether facts and circumstances within the officer’s knowledge existed that were sufficient to justify a belief by a reasonable person that an offense has been or is being committed. State v. Marra, supra; In re Keijam T., supra, 115; State v. Martin, supra, 612B.

Here, the trial court improperly focused on the validity of one aspect of the field sobriety tests administered by the arresting officer. The trial court heard evidence regarding the fact that the defendant exhibited signs of horizontal gaze nystagmus unrelated to alcohol use. This evidence was available to the court and dealt with the day of the administration of the test by the expert witness. The standard by which the existence of probable cause is measured is the information available to the arresting officer. State v. Martin, supra. On the basis of the expert’s testimony, the trial court found that an alternative explanation existed for the presence of the nystagmus, eliminated that test from the equation and found that the balance of the information that the officer had at the time of the arrest was insufficient to support probable cause. We disagree with both the trial court’s methodology and its finding.

The issue of the validity of the horizontal gaze nystagmus test, including whether the condition resulted from some congenital defect or from the defendant’s ingestion of alcohol, may be relevant when the issue of the defendant’s guilt or lack thereof is determined. It is not, however, a proper issue to be used to negate the existence of probable cause when the evidence is examined from the viewpoint of the knowledge of the arresting officer. See id. A determination of the existence of probable cause does not and cannot turn on other evidence that may be produced at some later time in an attempt to explain away the evidence used by the officer for concluding that he had probable cause to arrest the defendant. In re Keijam T., supra, 115-16. The issue depends on whether the police officer acted reasonably in believing, on the basis of the facts then available, that probable cause existed. State v. Martin, supra. In short, a determination of the existence of probable cause requires that the officer satisfy an objective standard at the time of the arrest. See State v. Copeland, supra.

As we have already indicated, the trial court improperly disregarded the arresting officer’s reliance on the nystagmus test as a part of the information he used in ascertaining the probable cause to arrest. The officer also observed the glassy and red condition of the defendant’s eyes, noted an odor of alcohol coming from the vehicle and noticed that the defendant had difficulty with parts of the so-called California field sobriety tests. On the basis of his experience, training and education, the officer determined that a person of reasonable caution would conclude that the defendant was under the influence of liquor. The trial court failed to use the proper standard for the determination of the existence of probable cause. We conclude that the trial court’s finding that the arrest was without probable cause is clearly erroneous, and its conclusion is not legally and logically consistent with the facts known to the officer at the time of the arrest.

The judgment is reversed and the case is remanded to the trial court with direction to reinstate the case on the docket of the court and to deny the motion to suppress.

In this opinion the other judges concurred.

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