author: Heiman, J.

text:
    Lawrence Marshall v. Lawrence F. DelPonte, Commissioner of Motor Vehicles
    (10302)
    Lavery, Landau and Heiman, Js.
    Argued February 13
    decision released April 14, 1992

      Cornelius F. Tuohy, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Priscilla J. Green, assistant attorney general, for the appellant (defendant).

      Maria Chiarelli, with whom, on the brief, were Joseph Chiarelli and Tara Chiarelli, for the appellee (plaintiff).

      Brian M. O’Connell, NormanB. Teague and Russell S. Palmer filed a brief for the Connecticut Criminal Defense Lawyers Association as amicus curiae.
   Heiman, J.

The defendant, the commissioner of motor vehicles for the state of Connecticut, appeals from the trial court’s judgment sustaining the plaintiff Lawrence Marshall’s appeal from the defendant’s order suspending Marshall’s driver’s license for ninety days pursuant to General Statutes § 14-227b. The defendant claims that the trial court incorrectly concluded that the department of motor vehicles failed, at the license suspension hearing, to present evidence sufficient to prove that the plaintiffs blood-alcohol content (BAC) was equal to or greater than 0.1 percent by weight at the time of the alleged offense. We affirm the judgment of the trial court.

The following facts are pertinent to our resolution of this appeal. On November 21, 1990, at about 12:51 a.m., Officer Kimberly Quesinberry of the West Haven police department stopped the plaintiff’s Dodge Polara after observing it being driven through a red light at the corner of Captain Thomas Boulevard and Savin Avenue in West Haven. Upon reaching the plaintiff, Quesinberry smelled alcohol on his breath and observed that his eyes looked glassy and his speech was slurred. Quesinberry then administered field sobriety tests to the plaintiff, which he failed. On the basis of her observations, Quesinberry arrested the plaintiff for operating a motor vehicle while under the influence of intoxicating liquor or drugs or both, in violation of General Statutes § 14-227a.

The plaintiff was transported to police headquarters where, after receiving the statutorily required warnings; see General Statutes § 14-227b (b); he agreed to submit to a breathalyzer test. The first test was administered at 1:27 a.m. and revealed a BAC of 0.178 percent. The second test was administered at 2:05 a.m. and revealed a BAC of 0.177 percent. Quesinberry then revoked the plaintiff’s driver’s license for twenty-four hours and issued him a temporary one. See General Statutes § 14-227b (c).

On November 30, 1990, the defendant notified the plaintiff that his driver’s license was to be suspended for ninety days pursuant to General Statutes § 14-227b (d). The plaintiff then requested a presuspension hearing; see General Statutes § 14-227b (d) and (f); which was held before Brian C. Carey, a department of motor vehicle hearing officer, on December 22, 1990. The sole evidence presented at the hearing was an “Officer’s DWI Arrest and Alcohol Test Refusal or Failure Report” signed by Quesinberry and the plaintiff’s testimony. The report set forth, inter alia, the circumstances surrounding Quesinberry’s stop of the plaintiff’s car and her subsequent observations of him, the time of the stop, the plaintiff’s performance on the field sobriety tests, the plaintiffs advisement of rights and consent to the intoximeter tests and the time and results of the intoximeter tests. The plaintiff testified that he had consumed two vodka drinks, each containing one shot of vodka, at the Marriot Hotel in Trumbull just before leaving the hotel and being stopped by Quesinberry. He also testified to the circumstances surrounding the automobile stop, his arrest, the field sobriety tests and his being processed and administered the intoximeter tests at the police station. Although the state produced evidence regarding the plaintiffs BAC at the time the intoximeter tests were administered, no extrapolation of that data back to the time of the offense appears on the record.

Carey issued his decision on December 26, 1990, finding that (1) the police officer had probable cause to arrest the plaintiff for violating Public Acts 1989, No. 89-314 (now General Statutes § 14-227a), (2) the plaintiff was placed under arrest, (3) the plaintiff submitted to the intoximeter tests, which indicated that his BAC was 0.1 percent or greater at the time of the offense, and (4) the plaintiff was operating a motor vehicle at the time of the offense. See General Statutes § 14-227b (f). As a result of these findings, the defendant suspended the plaintiffs driver’s license for ninety days.

The plaintiff appealed his suspension to the Superior Court, claiming, inter alia, that the defendant’s decision was clearly erroneous in view of the reliable, probative and substantial evidence on the whole record and that the record failed to disclose any basis for Carey’s finding that the intoximeter test results indicated a BAC equal to or greater than 0.1 percent at the time of the alleged offense. The court sustained the plaintiff’s appeal on two grounds. First, it ruled that the defendant failed to produce expert testimony regarding the plaintiffs BAC at the time of the alleged offense as required by our decision in State v. Geisler, 22 Conn. App. 142, 576 A.2d 1283, cert. denied, 215 Conn. 819, 576 A.2d 547 (1990), vacated on other grounds, U.S. , 111 S. Ct. 663, 112 L. Ed. 2d 657 (1991). Second, it found that the record was devoid of any evidence regarding the plaintiff’s BAC at the time of the alleged offense. The court found, therefore, that Carey’s determination that the plaintiff’s BAC was equal to or greater than 0.1 percent at the time of the offense was clearly erroneous in view of the reliable, probative and substantial evidence on the whole record and that his suspension of the plaintiff’s license constituted an abuse of discretion and prejudiced his substantial rights. It then sustained the plaintiff’s appeal and ordered the defendant to return the plaintiff’s original driver’s license to him.

We first address the trial court’s determination that our decision in State v. Geisler, supra, controls this case. Geisler involved a criminal prosecution for driving under 'the influence of liquor in violation of General Statutes § 14-227a, as well as other crimes. The defendant in Geisler drove a car that became involved in an automobile accident at approximately 3 p.m. on July 24, 1986. Id., 144. After the defendant was arrested, he consented to a breathalyzer test. Id., 159-60. The first test, administered at 4:08 p.m., indicated a BAC of 0.269. Id. The second test, administered at 4:41 p.m., indicated a BAC of 0.265. Id., 160. At trial, the defendant testified that he drank alcohol both before and after the accident. Id., 159. No expert testimony extrapolating the results of the breathalyzer tests back to the time of the accident was offered. Id. The defendant ultimately was convicted of driving while under the influence. Id., 144. After reviewing the legislative history of General Statutes § 14-227a, we concluded that our legislature “clearly indicated its intent that extrapolation testimony be required to prove a violation of our per se drunk driving statute.” Id., 164. Because the state failed to produce this critical testimony, we reversed the defendant’s conviction of driving while under the influence of liquor. Id., 170.

This case, unlike State v. Geisler, supra, involves an administrative license revocation proceeding under General Statutes § 14-227b, not a criminal prosecution under General Statutes § 14-227a. In a criminal case, the state must prove each element of the crime charged beyond a reasonable doubt. See State v. Peruta, 24 Conn. App. 598, 603, 591 A.2d 140, cert. denied, 219 Conn. 912, 593 A.2d 137 (1991). In an administrative action, however, the agency need only produce probative and reliable evidence to ensure that the proceedings are fundamentally fair. Altholtz v. Dental Commission, 4 Conn. App. 307, 310, 493 A.2d 917 (1985). Because the burden of proof is far higher in a criminal prosecution than in an administrative proceeding, we are not prepared to extend the rule of Geisler to a driver’s license revocation proceeding. The trial court incorrectly held otherwise.

The trial court did not, however, base its finding that the plaintiffs appeal should be affirmed solely on its interpretation of State v. Geisler, supra. It also found that the defendant’s decision was clearly erroneous in view of the reliable, probative and substantial evidence on the whole record because there was no evidence, expert or otherwise, indicating the plaintiffs BAG at the time of the offense. We agree.

In determining whether an administrative decision is “clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record”; General Statutes § 4-183 (j) (5); “the reviewing court must apply a standard similar to that applied in judicial review of a jury verdict. Under this restrictive standard, the court must consider whether the evidence affords a substantial basis of fact from which the fact in issue can reasonably be inferred.” (Citations omitted; internal quotation marks omitted.) Martone v. Len-sink, 207 Conn. 296, 305-306, 541 A.2d 488 (1988). The evidence must be substantial enough “to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury.” Persico v. Maher, 191 Conn. 384, 409, 465 A.2d 308 (1983). The trial court applied these standards properly in holding that the commissioner’s ruling was clearly erroneous.

The record of the suspension proceeding discloses no evidence supporting Carey’s finding that the plaintiff’s BAC was equal to or greater than 0.1 percent at the time of the offense. Although the record contains the results of two intoximeter tests administered after the alleged offense, it contains no extrapolation of those results back to the time of the offense.

Similarly, the record does not indicate that Carey either relied on his own expertise in determining the plaintiff’s BAC at the time of the alleged offense or attempted to take judicial notice of the plaintiff’s BAC at the time of the alleged offense. See General Statutes § 4-178 (6). Even if he had, General Statutes § 4-178 (7) prohibited him from relying on either his own expertise or on judicial notice unless he first notified the parties in a timely manner in order to afford them an opportunity to contest that material. See Fein-son v. Conservation Commission, 180 Conn. 421, 428-29, 429 A.2d 910 (1980). Thus, even assuming, without deciding, that extrapolation back of BAC data falls within the rubric of General Statutes § 4-178 (6), such extrapolation back cannot support the defendant’s decision in this case because Carey failed to advise the parties of his intent to rely on either his special expertise or judicial notice.

The record discloses no evidence on which Carey reasonably could have found that the plaintiff’s BAC at the time of the alleged offense was equal to or greater than 0.1 percent. Further, Carey failed to apprise the parties of his intent to rely on either his own expertise or judicial notice to establish the plaintiff’s BAC at the time of the alleged offense. As a result, the evidence presented at the suspension hearing was insufficient to justify suspending the plaintiff’s driver’s license under General Statutes § 14-227b. The trial court properly found that the defendant’s decision prejudiced the plaintiff’s substantial rights, that the decision was clearly erroneous in view of the reliable, probative and substantial evidence on the whole record and that the decision was arbitrary, capricious and constituted an abuse of the defendant’s discretion. See General Statutes § 4-183 (j) (5) and (6).

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff also was arrested for failure to obey a control signal, in violation of General Statutes § 14-219, and failure to carry mandatory insurance, in violation of General Statutes (Rev. to 1989) § 38-327 (now § 38a-371). Neither charge is at issue in this appeal.

       General Statutes § 14-227b (f) provides in pertinent part: “The [driver’s license suspension] hearing shall be limited to a determination of the following issues: (1) Did the police officer have probable cause to arrest the person for . . . operating a motor vehicle while under the influence of intoxicating liquor or drug or both or while his ability to operate such motor vehicle was impaired by the consumption of intoxicating liquor; (2) was such person placed under arrest; (3) did such person refuse to submit to such test or analysis or did such person submit to such test or analysis and the results of such test or analysis indicated that at the time of the alleged offense the ratio of alcohol in the blood of such person was ten-hundredths of one per cent or more of alcohol, by weight; and (4) was such person operating the motor vehicle. ...”


source: Caselaw Access Project

author: Daly, J.

license: Public Domain

text:
    James B. Diamond v. George Marcinek et al.
    (9832)
    Daly, Foti and Heiman, Js.

      Argued December 9, 1991
    decision released April 14, 1992

      Richard F. Paladino, for the appellants-appellees (defendants).

      Kenneth J. McDonnell, for the appellee-appellant (plaintiff).
   Daly, J.

The defendants appeal from a judgment rendered by the trial court in favor of the plaintiff. The defendants claim that the trial court improperly (1) found a violation of department of environmental protection (DEP) regulations; Regs., Conn. State Agencies §§ 22a-449 (d)-l (d) (1) and 22a-449 (d)-l (f) (1); because the statute and regulations were not alleged in the complaint, (2) granted rescission of the real estate conveyance, and (3) found that the defendants violated the DEP regulation concerning the reporting and transfer of a facility. Regs., Conn. State Agencies § 22a-449 (d)-l. The plaintiff, in his cross appeal, claims that the trial court improperly failed to allow recovery for work done on a farmhouse that was part of the real estate conveyance. We reverse the trial court’s award of rescission of the real estate conveyance. Because of our resolution of that claim, we need not address the remaining claims on the appeal or the cross appeal.

The court found the following facts. The plaintiff purchased property in the town of Clinton from the defendants. The transaction was negotiated by the defendants’ real estate broker who was acting as their agent. There was a farmhouse on the land. The plaintiff was told that the defendants had used the land to grow vegetables and had sold them at a roadside stand. The plaintiff was also advised that a river located at the rear of the property could be used to supply water for the property. On November 29,1987, the parties entered into a contract of sale for $215,000, and the property was transferred on December 10, 1987.

The plaintiff began renovating the farmhouse in December and moved there in February, 1988. The plaintiff then discovered that the property had been used as a gas station, and that there were two underground gasoline storage tanks on the property. The defendants admitted that they were aware that the property had been used as a gas station in the past. The defendant George Marcinek testified that his father operated the gas station until approximately 1944. He could not remember exactly when the gas pumps were removed after his father stopped selling gasoline.

On May 24,1988, the DEP sent a letter to the defendants advising them that they had to submit a Connecticut underground storage tank notification form. The defendants submitted this form on June 3, 1988. According to the information in the form, there were two underground tanks, each with an estimated capacity of 500 gallons. During the summer of 1988, the defendants paid for the removal of the underground tanks. The plaintiff, who was present when the tanks were removed, testified that he saw petroleum-like sludge in one of the tanks.

The plaintiff instituted a four count complaint in this action. In count two, the plaintiff claimed that title to the property was unmarketable because of the underground gasoline tanks. In count three, the plaintiff claimed that the defendants’ fraudulent concealment of the existence of the underground tanks caused the value of the property to be greatly diminished. The court found that the evidence failed to establish that title to the property was unmarketable or that the value of the property was diminished. Thus, the court denied relief on both of those counts. In count four, the plaintiff alleged that the defendants had fraudulently concealed problems with the well water system. The court, however, found that the plaintiff failed to prove that the defendants had fraudulently concealed any problems related to the well water system.

On the basis of the allegations in count one of the plaintiff’s complaint, the court found for the plaintiff. This count claimed that the defendants had failed to submit a negative declaration to the plaintiff pursuant to General Statutes § 22a-134a (b). The court held that the defendants’ nondisclosure about the prior history of the property did not constitute an intentional fraudulent withholding. The court concluded that the defendants “just plain forgot about it.” The court nonetheless held that the defendants were required by § 22a-449 (d)-l of the Regulations of Connecticut State Agencies to notify the transferee, the plaintiff, about the existence of the underground tanks, which fit within the definition of a nonresidential facility as defined in § 22a-449 (d)-l (a) of the regulations.

The court awarded the plaintiff $2210 as reimbursement for the cost of testing the residential water supply. The court found that the plaintiff failed to prove the existence of any hazardous substances in the land resulting from the underground tanks. The plaintiff also sought to recover the cost of renovations done on the farmhouse. The plaintiff spent approximately $20,000 toward the renovation of the farmhouse. The farmhouse was originally built in 1875, and the court presumed it had historical value. The court noted that there was “no evidence whatsoever of any increase in value to the property by virtue of the work done ... by the plaintiff and accordingly, the plaintiff cannot recover from the defendants on account of claimed improvements made on a theory of unjust enrichment.” The court further stated that “[t]he law does not permit this court to speculate as to whether or not any work done on the property constitutes an improvement or constitutes a detrimental depreciation of value by virtue of destruction of any historic value that this structure may have had.”

The court granted the plaintiffs claim seeking rescission of the real estate conveyance. The court reasoned that rescission was appropriate because of the defendants’ “negligent concealment” and failure to follow the DEP regulations. Thus, the plaintiff received $2210 as damages and an order rescinding the real estate conveyance. Both the plaintiff and defendants appealed to this court.

The court’s award of rescission and restitution was based on only count one of the plaintiff’s complaint. According to count one of the complaint, this conveyance of property constituted a transfer of a service station as defined in General Statutes § 22a-134 (7). Because this was a transfer of a service station, the defendants were required to submit a negative declaration to the plaintiff stating that there was no hazardous waste on the property. General Statutes § 22a-134 (5). A violation of any of the provisions related to the transfer of hazardous waste establishments makes the transferor liable to the transferee “for all cleanup and removal costs and for all direct and indirect damages.” General Statutes § 22a-134b.

General Statutes §§ 22a-134 through 22a-134d were enacted to protect purchasers of property from being liable for the subsequent discovery of hazardous waste on the property by requiring the transferor of property to submit a formal declaration that the property is free of pollution. See 28 S. Proc., Pt. 6,1985 Sess., p. 1802. These statutes apply to “any establishment which on or after May 1, 1967, generated more than one hundred kilograms of hazardous waste per month . . . .” General Statutes § 22a-134 (3). Clearly, these underground tanks, which stopped being used in the 1940s, did not fit within that definition. The court also found that the plaintiff failed to prove the existence of any hazardous waste in or on the property. The court held that “[tjhere is no evidence from which the court can find that there was any leaking of any substance from either of these tanks.” The defendants were not required to submit a negative declaration because this conveyance did not constitute a transfer of an establishment subject to the provisions of § 22a-134.

The defendants also were not required to file a certificate concerning the past use of this property as a service station under General Statutes § 22a-134a (d). Section 22a-134a (d) prevents the imposition of a state lien against real estate as security for any resulting costs of cleaning up hazardous waste if “the transferor certifies to the transferee that (1) the service station, or any part thereof, complies with regulations adopted by the commissioner of environmental protection pursuant to subsection (d) of section 22a-449 concerning design, construction, installation and maintenance of underground facilities storing oil or petroleum liquids . . . .” This section requires certification by the trans-feror only if the transferred service station was operating on or after May 1, 1967. General Statutes § 22a-134a (d). This service station ceased operation in the mid 1940s. The filing of a negative declaration applies only to establishments or service stations that were operating on or after May 1,1967. Therefore, the defendants did not have a duty under this section to notify the plaintiff about the existence of these underground tanks. Even though there was not a violation of § 22a-134a, the defendants, paid for the removal of the tanks, which is a recognized form of relief under § 22a-134b.

This court can find plain error on matters not distinctly raised at trial. Practice Book § 4185. “An error must have two characteristics before it can be classified as ‘plain error.’ First, the error must be discernible from the face of a factually accurate record. Cahill v. Board of Education, 187 Conn. 94,100-101, 444 A.2d 907 (1982). Second, the court’s recognition of the error must be ‘in the interests of justice.’ Practice Book § 4185.” Sciola v. Shernow, 22 Conn. App. 351, 360, 577 A.2d 1081, cert. denied, 216 Conn. 815, 580 A.2d 60 (1990). A determination of plain error derives “not by reason of the appellant’s right to have it determined but because, in our opinion, in the interest of . . . justice between the parties it ought to be done.” Kavanewsky v. Zoning Board of Appeals, 160 Conn. 397, 401, 279 A.2d 567 (1971). On the basis of the trial court’s findings, we find that the court’s award of rescission and restitution constituted plain error.

The defendants argued that the DEP regulations did not apply because the plaintiff failed to state them in the complaint and also because the plaintiff failed to prove that these tanks constituted a nonresidential facility. The defendants did not challenge the trial court’s finding that these underground tanks were both an existing facility and an abandoned or temporarily out of service facility. We conclude that these underground tanks constituted only an abandoned or temporarily out of service facility.

An “existing facility” is broadly classified as “a facility, the construction or installation of which began prior to the effective date of these regulations.” Regs., Conn. State Agencies § 22a-449 (d)-l (a). These underground tanks technically fit within this definition because they were installed long before the effective date of these regulations. The DEP regulations, however, also refer to “temporarily out-of-service” facilities. “ ‘Temporarily out-of-service’ means not in use, in that no regular filling or drawing is occurring; or not established and maintained in accordance with these regulations; or not regularly attended and secured.” Regs., Conn. State Agencies § 22a-449 (d)-l (a). These underground tanks fit within this more narrow classification instead of the “existing facility” classification. There had been no regular filling or drawing from these tanks for over forty years. These tanks were installed long before these DEP regulations and, thus, were not maintained in accordance with them. The tanks had not been regularly attended and secured since the 1940s when George Marcinek’s father stopped using them. The gas pumps that were attached to the underground storage tanks were removed during the 1950s. Without the aboveground gas pumps connected, these tanks could not be used. Thus, they could also be classified as abandoned under the DEP regulations. “ ‘Abandoned’ means rendered permanently unfit for use.” Regs., Conn. State Agencies § 22a-449 (d)-l (a). Thus, the trial court should have classified these tanks as temporarily out of service or abandoned and not as an existing facility.

The distinction between an “existing facility” and an “abandoned facility” or “temporarily out-of-service facility” is very important in this case. The DEP regulations regarding an abandoned or temporarily out of service facility required the defendants only to notify the commissioner about the existence of the facility. Regs., Conn. State Agencies § 22a-449 (d)-l (d) (4). The defendants ultimately satisfied this requirement after they conveyed the property to the plaintiff. The duty of disclosure owed by the defendants to the plaintiff concerning these tanks arises only if this conveyance constituted a “transfer . . . of any new or existing facility.” Regs., Conn. State Agencies § 22a-449 (d)-l (f) (l). The disclosure would have to occur fifteen days before the transfer. Regs., Conn. State Agencies § 22a-449 (d)-l (f) (1). It was the application of this DEP regulation that led the court to award rescission and restitution. Section 22a-449 (d)-l (f) (1) of the regulations did not apply to this case because this conveyance did not involve the transfer of “a new or existing facility.” The court’s finding that the defendants owed a duty of disclosure to the plaintiff based on § 22a-449 (d)-l (f) (1) of the regulations was not supported by the law or the facts and, thus, constituted plain error.

An award of rescission is justified “if there has been a material misrepresentation of fact upon which a party relied and which caused it to enter the contract. . . . The material misrepresentation, when made in connection with the sale of land, may be an innocent misrepresentation.” (Citations omitted.) Kavarco v. T.J.E., Inc., 2 Conn. App. 294, 298, 478 A.2d 257 (1984). Here, the defendants did not make any misrepresentation about their use or characteristics of this property. Even if the innocent nondisclosure about the underground tanks constituted a misrepresentation, it was not a material breach in this case. The defendants paid for the removal of the tanks after the plaintiff took possession of the property upon notification by the plaintiffs attorney. There was no evidence that this property was contaminated due to the presence or removal of the tanks. The plaintiff received what he believed he bargained for after the defendants removed the tanks. The nondisclosure about the underground tanks was, at best, a harmless misrepresentation under the facts of this case.

The plaintiff relies on the language in Kavarco v. T.J.E., Inc., supra, 299-300, to support the court’s award of rescission and restitution: “The purchase of real estate for a residence happens infrequently in the lifetime of the average family. The very fact that the land did not have the fundamental characteristics which were attributed to it by the seller is sufficient in and of itself to show that the buyer suffered damage or irreparable harm.” An award of rescission does not require proof of monetary damages suffered by the plaintiff. Id., 299. The plaintiff in this case was advised by the defendants’ real estate agent that they had used the property as a residence and vegetable farm. There was no showing that this was a false statement or that the property in fact was contaminated such that it was unable to be used as a residence or vegetable farm. After the defendants removed the tanks, the land still retained its fundamental characteristics. Thus, because of the factual findings of the trial court, the plaintiff’s reliance on Kavarco v. T.J.E., Inc., supra, 299-300, to justify a rescission based on the defendants’ nondisclosure about the underground tanks is misplaced.

We recognize “that the decision to award a remedy for rescission . . . always depends upon a showing of what justice requires in the particular circumstances, and thus necessarily rests in the discretion of the trial court.” Burt’s Spirit Shop, Inc. v. Ridgway, 215 Conn. 355, 361, 576 A.2d 1267 (1990). The trial court’s incorrect interpretation of the DEP regulations was the only basis for awarding rescission and restitution. The court clearly found that the nondisclosure about the existence of the underground tanks did not constitute fraudulent conduct by the defendants. There was no reason to rescind this transaction based on the trial court’s findings that the defendants’ nondisclosure was in no way fraudulent, that the defendants immediately complied with the DEP regulations and paid for the removal of the tanks and that the plaintiff failed to establish any harm or damages resulting from the defendants' nondisclosure. There was no other basis in the trial court’s decision that justified an award of rescission and restitution. Thus, we conclude that the award of rescission and restitution constituted an abuse of discretion by the trial court.

Our resolution of the rescission claim renders the cross appeal moot because the plaintiff will retain the farmhouse and its improvements, thus he can no longer claim that the defendants were unjustly enriched.

The judgment awarding rescission and restitution is reversed and the case is remanded with direction to render judgment for the defendants.

In this opinion the other judges concurred.

       General Statutes § 22a-134 (7) provides: “ ‘Transfer of a service station’ means a transfer, as defined in this section, of a service station or any other transaction or proceeding whereby a service station, or any part thereof, undergoes a change in ownership, including, but not limited to, a sale of stock in the form of a statutory merger or consolidation, a sale of the controlling share of assets, the conveyance of real property or a change of corporate identity or financial reorganization, but excluding corporate reorganization not substantially affecting the ownership of the service station.”

       General Statutes § 22a-134 (5) provides in pertinent part: “ ‘Negative declaration’ means a written declaration on a form prescribed by the commissioner stating (1) that there has been no discharge, spillage, uncontrolled loss, seepage or filtration of hazardous waste on-site, or that any such discharge, spillage, uncontrolled loss, seepage or filtration has been cleaned up in accordance with procedures approved by the commissioner or determined by him to pose no threat to human health or safety or the environment which would warrant containment and removal or other mitigation measures . . . .”

       Section 22a-449 (d)-l (d) (4) of the Regulations of Connecticut State Agencies provides: “By May 8, 1986, the owner or operator of an abandoned or temporarily out-of-service facility shall notify the commissioner of the location, type and capacity of such facility and the date it was abandoned or removed from service.”

       Section 22a-449 (d)-l (f) (1) of the Regulations of Connecticut State Agencies provides: “No owner or operator shall transfer ownership, possession or control of any new or existing facility without full disclosure to the transferee of the status of the facility with respect to compliance with these regulations at least fifteen (15) days prior to the transfer. Such disclosure shall include an up-to-date copy of the information submitted to the commissioner pursuant to subsection (d).”


author: O’Connell, J.

text:
    Dennis J. Clement, Jr. v. Carelene L. Clement
    (9839)
    Dupont, C. J., O’Connell and Heiman, Js.
    Argued December 10, 1991
    decision released April 14, 1992

      Gerald E. Farrell, for the appellant (plaintiff).

      F. Patrick Zailckas, with whom, on the brief, was Howard W. Shelnitz, for the appellee (defendant).
   O’Connell, J.

The plaintiff appeals from the judgment dissolving his marriage to the defendant. At issue are certain awards ordered by the trial court pursuant to General Statutes § 46b-81 (a) and (c) and General Statutes § 46b-84. The plaintiff claims that the trial court improperly (1) structured the marriage dissolution property award in order to provide for the support of a nonminor child, (2) held the plaintiff solely financially responsible for debts incurred for the benefit of both parties, (3) failed to define payments it had ordered the plaintiff to pay to the defendant as periodic alimony, (4) ordered the plaintiff to hold the defendant harmless on a mortgage taken out in both parties’ names, and (5) failed to consider the tax consequences of its orders. We affirm the trial court’s judgment.

The following facts are relevant to this appeal. The plaintiff and the defendant were married on November 2, 1968, in Waterbury. At the time of trial, the parties had two minor children, ages eight and seventeen, and a third, nonminor child suffering from diabetes who resided with the defendant. The trial court awarded joint legal custody of the two minor children, with residence of the seventeen year old to be with the plaintiff and residence of the eight year old to be with the defendant. In addition, the court ordered the plaintiff (1) to pay $50 per week child support for the youngest child, (2) to pay the personal property taxes due to the town of Wolcott, (3) to hold the defendant harmless on two of three outstanding mortgages, and (4) to pay $50 per week alimony to the defendant. The court also rendered orders concerning health insurance for the minor children and division of the family’s two automobiles. These orders are not contested. Other relevant facts are detailed in the following discussion.

The plaintiff filed a motion for articulation requesting the trial court to clarify, inter alia, (1) whether the court intended to benefit the nonminor child of the parties, and (2) whether an order requiring the plaintiff to pay certain joint debts constituted a property award or periodic alimony. The trial court's articulation stated that it found the defendant to be a credible witness, but the plaintiff was not totally credible based on his understated income and implausible explanations of certain items. The court also found that the plaintiff was the cause of the marital breakdown, as well as the cause of the family’s financial problems. Finally, the court concluded that because the plaintiff’s earning capacity and health were superior to the defendant’s, “[t]he provisions made by the court for the defendant’s future are necessary for her to continue in a lifestyle approximately similar to the way the parties had lived in the past.” A motion for further articulation was denied by the trial court.

The plaintiff first contends that the trial court improperly fashioned the property awards in order to provide for the nonminor, diabetic child who resided with the defendant. The plaintiff attempts to support this contention by citing the following statement made by the court at trial: “I have to figure out a way to keep this household intact. Because obviously . . . although he is eighteen years old, he’s apparently a seriously ill offspring. ... I don’t know what happens to him if the mother says, ‘Good-bye, I’m going into an apartment.’ ”

Although the plaintiff is correct that General Statutes § 46b-84 does not authorize consideration of a non-minor child’s maintenance, in the present case, he cannot demonstrate that the court’s order provided for the adult child’s maintenance. Nowhere in the trial court’s memorandum of decision, articulation, or judgment is there any mention of the diabetic adult child. In Misinonile v. Misinonile, 190 Conn. 132, 459 A.2d 518 (1983), the defendant claimed that the trial court improperly rendered a support order in the guise of alimony. The defendant contended that a reference in the trial court’s memorandum of decision to the “care of her retarded child” demonstrated that the award of alimony was, in actuality, an improper order for the support of an adult child and was therefore void because the trial court lacked jurisdiction to render such an award. The Misinonile court held that it had jurisdiction, but did not reach the question of whether there was an erroneous exercise of that jurisdiction. The court noted that, “[t]he difficulty with the defendant’s position is that it seeks to use the memorandum for the purpose of contradicting the express terms of the judgment and this he cannot do.” Id., 135.

The facts in this case are stronger than in Misinonile. In that case, the memorandum of decision at least made reference to the proscribed category of support order. Here, the only mention of it was a comment by the trial judge at trial expressing his concern about the future of the household. Thus, the plaintiff’s claim that the court improperly considered the maintenance of a non-minor child in structuring its property award is not supported by the record.

The plaintiff’s second, third and fourth claims also must fail. The plaintiff’s second claim is that the trial court improperly ordered the plaintiff to be financially responsible for debts incurred for the benefit of both parties. General Statutes § 46b-81 (a) vests the Superior Court with broad discretion in assigning all or any part of the estate of the other to either the husband or wife. Moreover, General Statutes § 46b-81 (c) allows the court to consider the causes of the dissolution of the marriage in valuing the property, as was done in this case.

The plaintiff’s third claim, that the trial court should have defined the payments it ordered the plaintiff to make as periodic alimony, also fails to recognize that the trial court has broad discretion in rendering its dissolution awards. General Statutes § 46b-82 provides in pertinent part: “At the time of entering the decree, the superior court may order either of the parties to pay alimony to the other, in addition to or in lieu of an award pursuant to section 46b-81.” (Emphasis added.) Thus, because determination of what type of payments the court ordered the plaintiff to pay to the defendant rested within the discretion of the trial court, the plaintiffs claim must fail.

The plaintiffs fourth contention, that the trial court abused its discretion by ordering the plaintiff to hold the defendant harmless on a mortgage, is similarly without merit. Pursuant to General Statutes § 46b-81, a trial court may order one party to assume the joint liabilities of the parties. Beede v. Beede, 186 Conn. 191, 195, 440 A.2d 283 (1982). Here, the trial court properly considered the contribution of each of the parties in the acquisition, preservation or appreciation in the value of each party’s estates, the cause of the marital breakdown and the age, health, employability and needs of each party in making its award. See Cabrera v. Cabrera, 23 Conn. App. 330, 348-49, 580 A.2d 1227, cert. denied, 216 Conn. 828, 582 A.2d 205 (1990).

In his remaining claim, the plaintiff asks this court to reconsider its position in Seaver v. Seaver, 10 Conn. App. 134, 521 A.2d 1053 (1987), where we held that “[tjhere is no requirement in the applicable statutes which makes it mandatory that a trial court consider the federal tax implications of its financial orders.” Id. Because our position is clear; see id.; we decline to reverse our decision in Seaver. Furthermore, because the plaintiff failed to raise the issue of tax consequences at the trial level or to put on any evidence as to the tax consequences of the property awards, such a claim may not now be raised at the appellate level. Practice Book § 4185; Ralto Developers, Inc. v. Environmental Impact Commission, 220 Conn. 54, 58-59, 594 A.2d 981 (1991).

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 46b-81 (a) provides: “At the time of entering a decree annulling or dissolving a marriage or for legal separation pursuant to a complaint under section 46b-45, the superior court may assign to either the husband or wife all or any part of the estate of the other. The court may pass title to real property to either party or to a third person or may order the sale of such real property, without any act by either the husband or the wife, when in the judgment of the court it is the proper mode to carry the decree into effect.”

       General Statutes § 46b-81 (c) provides: “In fixing the nature and value of the property, if any, to be assigned, the court, after hearing the witnesses, if any, of each party, except as provided in subsection (a) of section 46b-51, shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employ-ability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income. The court shall also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates.”

       General Statutes § 46b-84 provides in pertinent part: “(a) Upon or subsequent to the annulment or dissolution of any marriage or the entry of a decree of legal separation or divorce, the parents of a minor child of the marriage, shall maintain the child according to their respective abilities, if the child is in need of maintenance.”

       See footnote 1, supra.

       See footnote 2, supra.


text:
    State of Connecticut v. Paul Gruver
    (9763)
    Dupont, C. J., O’Connell and Lavery, Js.
    Argued October 28, 1991
    decision released April 14, 1992

      William Domnarski, for the appellant (defendant).

      Mitchell S. Brody, assistant state’s attorney, with whom, on the brief, were Donald B. Caldwell, state’s attorney, and Sandra Tullius, deputy assistant state’s attorney, for the appellee (state).
   O’Connell, J.

The defendant appeals from the judgment of conviction of operation of a motor vehicle while under the influence of liquor in violation of General Statutes § 14-227a. He entered a conditional nolo con-tendere plea after denial of his motion to suppress the state’s evidence. General Statutes § 54-94a. On appeal, the defendant contends that the trial court improperly denied his motion to suppress. We affirm the trial court’s judgment.

The record discloses that, on the night in question, JoAnne Howell, while working at a convenience store in the Storrs section of Mansfield, saw the defendant drive into the parking lot in front of the store at approximately 11:30 p.m. She observed the defendant stumble as he got out of his car, enter the store with difficulty and continue to stumble and nearly fall to the floor. On the basis of his glassy eyes, stumbling gait, inability to distinguish currency denominations while attempting to make a purchase and his acknowledgement that he was “trashed,” Howell concluded that the defendant was inebriated. Howell asked the defendant whether he would be driving, and when he responded that he would be, she telephoned the police.

Howell informed the police that the defendant had just stumbled out of the store and into the driver’s seat of a small blue car parked almost directly in front of the store. She also told the police that the vehicle’s lights were on but that its engine had not been started. Howell remained on the phone with the police until a cruiser arrived on the scene less than three minutes later.

The arresting officer was dispatched to the store to look for a possibly intoxicated driver who had just left the store and was in a small blue car with its headlights on. Approaching the store, the officer observed a small blue vehicle with its lights on parked facing the store. The officer stopped his cruiser directly behind the car and turned on the cruiser’s overhead light. The record does not indicate that there was any impediment to driving the defendant’s car forward.

As the officer walked toward the defendant’s car, he smelled a very strong odor of alcohol through the open window and observed the defendant in the driver’s seat, with his face flushed and eyes glassy. At this point, the defendant looked at the officer, turned on his vehicle’s ignition and, when asked if he had been drinking, replied in slurred speech, “I had a couple.” After being asked to exit his vehicle, the defendant failed field sobriety tests, and was arrested for operating a motor vehicle while under the influence of liquor. Neither the defendant’s operation of the vehicle nor his having been under the influence of liquor are contested in this appeal.

As a threshold matter, we note with disapproval the breadth of the defendant’s motion. Much greater particularity of the material to be suppressed is desirable if not required. See General Statutes § 54-33f; Practice Book § 821; State v. Criscuolo, 6 Conn. Cir. Ct. 453, 275 A.2d 613 (1970). General Statutes § 54-33f is nearly a verbatim adoption of rule 41 (e) of the Federal Rules of Criminal Procedure. As such, we may look to the decisions of the federal courts for assistance in its application. State v. Darwin, 29 Conn. Sup. 423,425, 290 A.2d 593 (1972). “It is well settled that a party moving for suppression of evidence must state definitely what particular messages he desires suppressed. An allegation to suppress all illegally obtained evidence is insufficient.” United States v. Carney, 188 F. Sup. 86, 88 (S.D.N.Y. 1960); see also O’Neal v. United States, 222 F.2d 411 (D.C. Cir. 1955). Because the adequacy of the motion was not raised by the parties, nor by this court at oral argument, we forego determining the appeal on this issue and will decide the matter on its merits. See Lo Sacco v. Young, 210 Conn. 503, 508, 555 A.2d 986 (1989).

The defendant treats this case as one involving an anonymous informant. The trial court, however, was entitled to believe Howell’s testimony that she gave her name to the police and therefore was not an anonymous tipster. Moreover, Howell testified as a state’s witness and was cross-examined by the defendant. Thus, the disadvantages to a defendant when the police act on an anonymous tip or refuse to disclose their informant’s name are not part of this case. Such disadvantages arise from the fact that the unknown informant does not come forth and testify as a witness. Thus, the defendant is deprived of his right of cross-examination and the trier of fact is deprived of the opportunity to determine the informant’s credibility by observing his demeanor on the witness stand. In this case, the court, as the trier of fact, could determine Howell’s credibility for itself. See State v. Richardson, 204 Conn. 654, 657-62, 529 A.2d 1236 (1987).

The defendant also mistakenly fixes the point when he was seized as the moment the police officer pulled up behind the defendant’s vehicle and turned on the cruiser’s light. In California v. Hodari D., U.S. , 111 S. Ct. 1547, 1550, 113 L. Ed. 2d 690 (1991), the United States Supreme Court recently held that, for fourth amendment purposes, a seizure does not take place until the defendant has submitted to a police officer’s show of authority. Id., 1551. A naked show of authority without submission thereto does not constitute a seizure. For example, when a police officer, intent on stopping a motorist, turns on the flashing red and blue lights of his marked police cruiser and activates its siren, he has made a display of his authority. If, however, the offending motorist attempts to evade the officer by increasing his speed and a chase ensues, it cannot be said that a seizure has taken place while the chase is in progress. In this hypothetical scenario, a seizure does not occur until the pursued motorist pulls to the side of the road and stops in submission to the pursuing officer’s authority.

Applying the Hodari D. principle to the present case, we conclude that the defendant incorrectly asserts that a seizure occurred when the officer parked behind the defendant’s car. The earliest point at which it can be said that there was submission to the officer’s display of authority was when the defendant turned on his ignition as if to leave but instead remained immobile. By this time, the officer had already smelled the odor of alcohol and had observed the defendant’s glassy eyes and flushed face. Thus, at a minimum, the officer had reasonable and articulable suspicion that a violation of General Statutes § 14-227a was taking place in his presence.

This court’s review of the underlying factual basis of the trial court’s decision is limited to whether the court’s decision is supported by the evidence or is clearly erroneous. State v. Anderson, 24 Conn. App. 438, 589 A.2d 372, cert. denied, 219 Conn. 903, 593 A.2d 130 (1991). “The determination of whether a specific set of circumstances provides a police officer with a reasonable and articulable suspicion of criminal activity is a question of fact for the trial court and is subject to limited appellate review.” Id., 442. The facts detailed above justified the defendant’s detention for the limited intrusion of field sobriety testing to confirm or dispel the officer’s suspicion. This was a valid Terry stop as defined in Terry v. Ohio, 392 U.S. 1, 20-22, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968); State v. Lamme, 216 Conn. 172, 176, 579 A.2d 484 (1990); see State v. Anderson, supra.

Furthermore, when the defendant, who clearly appeared to be under the influence of liquor, turned on his vehicle’s ignition he committed an offense in the presence of the officer. General Statutes § 54-lf (a) authorizes an officer to arrest or detain, without a warrant, any person who commits a crime in his presence.

The trial court properly denied the defendant’s motion to suppress.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 54-94a provides: “When a defendant, prior to the commencement of trial, enters a plea of nolo contendere conditional on the right to take an appeal from the court’s denial of the defendant’s motion to suppress evidence based on an unreasonable search or seizure, motion to suppress statements and evidence based on the involuntariness of a statement or motion to dismiss, the defendant after the imposition of sentence may file an appeal within the time prescribed by law. The issue to be considered in such an appeal shall be limited to whether it was proper for the court to have denied the motion to suppress or the motion to dismiss. A plea of nolo contendere by a defendant under this section shall not constitute a waiver by the defendant of nonjurisdictional defects in the criminal prosecution.”

       The record refers to this light only as a clear light which lit up the vehicle ahead of it. There is no indication that it was a flashing red or blue light. It appears to have been something in the nature of a spotlight.

       For purposes of General Statutes § 14-227a, it is not necessary that the defendant move the vehicle if he manipulates any of the machinery that could cause the vehicle to move. State v. Ducatt, 22 Conn. App. 88, 93, 575 A.2d 708, cert. denied, 217 Conn. 804, 584 A.2d 472 (1990).

       The defendant moved to suppress “all of the state’s evidence” (emphasis added) on the grounds that it was obtained in violation of his rights under the fourth amendment to the United States constitution and article first, § 7, of the Connecticut constitution. The defendant, however, makes no effort to show that all of the state’s evidence was obtained unconstitutionally. For example, the defendant fails to demonstrate how Howell’s eyewitness testimony, which was limited to her personal observations, violated the defendant’s constitutional rights. Similarly, the defendant offers no explanation of how state’s exhibit A (Howell’s statement) and exhibit B (a dispatch card) were obtained unconstitutionally. He stipulated to the admission of exhibit A and expressly did not object to the admission of exhibit B. Such action implicitly signified his correct conclusion that neither the dispatch card nor Howell’s statement was obtained or admitted in violation of his constitutional rights.

       General Statutes § 54-33f (a) provides: “A person aggrieved by search and seizure may move the court which has jurisdiction of his case or, if such jurisdiction has not yet been invoked, then the court which issued the warrant, or the court in which his case is pending, for the return of the property and to suppress for use as evidence anything so obtained on the ground that: (1) The property was seized without a warrant, or (2) the warrant is insufficient on its face, or (3) the property seized is not that described in the warrant, or (4) there was not probable cause for believing the existence of the grounds on which the warrant was issued, or (5) the warrant was illegally executed. In no case may the judge who signed the warrant preside at the hearing on the motion.”

       Practice Book § 821 provides: “Upon motion of the defendant, the judicial authority shall suppress potential testimony or other evidence if he finds that suppression is required under the constitution or laws of the United States or the state of Connecticut.”

       In Terry v. Ohio, 329 U.S. 1, 21, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), the court stated that, “in justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rationale inferences from those facts, reasonably warrant that intrusion.”

       See footnote 3, supra.

       General Statutes § 54-lf (a) provides in pertinent part: “Peace officers . . . shall arrest, without previous complaint and warrant, any person for any offense in their jurisdiction, when the person is taken or apprehended in the act or on the speedy information of others . . . .”


author: Landau, J.

text:
    Robert C. O’Sullivan v. Lawrence F. DelPonte, Commissioner of Motor Vehicles
    (10452)
    Dupont, C. J., Landau and Heiman, Js.
    Argued February 19
    decision released April 21, 1992

      Carla Ottaviano, for the appellant (plaintiff).

      Lawrence G. Widem, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (defendant).
   Landau, J.

The plaintiff, Robert O’Sullivan, appeals from the trial court’s dismissal of his administrative appeal. An administrative hearing was held to determine whether the plaintiff caused or contributed to a fatality, and, if so, whether his motor vehicle license should be suspended. A hearing officer found in the affirmative and suspended the plaintiff’s license for three years. The plaintiff claims that the trial court improperly concluded that the following evidentiary rulings of the hearing officer were proper and that the plaintiff was not substantially prejudiced by these rulings: (1) the admission of the police report that contained hearsay statements of witnesses without requiring the witnesses’ presence at the hearing; (2) the admission of a copy of the police report rather than the original, where the author could not recall if any corrections had been made; and (3) the admission of only a portion of the officer’s investigation file. We affirm the judgment of the trial court.

The following facts are undisputed. On August 9, 1988, at approximately 9:30 p.m., the plaintiff was driving southbound in the left lane on Interstate 95 near exit 14 in Norwalk. The left lane, however, was closed for road construction and the closure was indicated by both signs and cones placed in the lane. As the plaintiff was attempting to merge into the center lane, he noticed high beams being flashed from behind him. At the same time that the plaintiff was turning the wheel to merge into the center lane, he looked up to adjust his rearview mirror, taking his eyes off the road. When he returned his attention to the road, he saw the brake lights on in the car immediately in front of him in the center lane. The plaintiff immediately applied his brakes, but was unable to avoid a collision with that car, which was driven by Joseph Grumblatt. Also in the car were his wife Louise, and Stephen and Sylvia Luciano. The Grumblatt car was forced over the guardrail, rolled down an embankment and came to rest on its roof. Louise Grumblatt was thrown from the car and died as a result of her injuries.

Trooper Joseph Kubish of the state police arrived at the scene shortly thereafter and examined the physical evidence, including the skid marks, the positions of the two cars and the damage the cars had sustained and interviewed Joseph Grumblatt, the plaintiff, and David Rubin, the driver of the car behind the plaintiff.* The plaintiff was arrested six months later on February 7,1989, and charged with negligent homicide with a motor vehicle in violation of General Statutes § 14-222.

The plaintiff was present at the administrative hearing and was represented by counsel. Only two witnesses testified at the hearing, Kubish and Sal Rermo, a business associate of the plaintiff. The hearing officer made the following findings of fact:

“1. On August 9,1988, at about 9:43 p.m. Robert C. O’Sullivan was operating a 1984 Toyota Célica on 1-95 westbound near the Richard Avenue overpass in Norwalk.
“2. Mr. O’Sullivan was operating in the far left lane of three travel lanes. Said lane was clearly marked as closed and traffic had been directed to merge right.
“3. Mr. O’Sullivan passed a vehicle being operated by David A. Rubin who was in the center lane. While operating at speed in excess of 55 miles per hour Mr. O’Sullivan attempted to change lanes.
“4. By Mr. O’Sullivan’s statement he admits that he took his eyes off the road to adjust a rearview mirror while in the process of the lane change.
“5. When Mr. O’Sullivan looked down from his rear-view mirror he observed the red brake lights of a vehicle in front of him, but was unable to react.
“6. Mr. O’Sullivan struck the rear of a 1981 Pontiac being operated by Joseph J. Grumblatt with sufficient force to spin the Grumblatt vehicle 180 degrees in a northerly direction, across the right lane, striking the guardrails off the right shoulder. The Grumblatt vehicle flipped over the guardrails and barrel rolled down the embankment.
“7. At the time of the collision, Louise F. Grumblatt was a passenger in the vehicle being operated by Joseph L. Grumblatt.
“8. As a result of injuries received in this collision Louise F. Grumblatt expired.
“9. The closure of the extreme left lane was clearly posted and the slowing and merging traffic should have been evident to Mr. O’Sullivan.
“10. Mr. O’Sullivan operated his vehicle with reckless disregard for others using the roadway, contrary to the provisions of the Connecticut General Statutes.”

The hearing officer concluded that the plaintiff “caused or contributed [to] and is responsible for the death of Louise Grumblatt . . . .” and suspended the plaintiff’s license, pursuant to General Statutes § 14-111 (c), for a period of three years to commence September 1,1990.

The plaintiff appealed the hearing officer’s decision to the Superior Court, pursuant to General Statutes § 4-183. On June 27,1991, the trial court dismissed the plaintiff’s appeal. The court found that the hearing officer properly admitted a copy of the police report although (1) it contained hearsay statements of witnesses to the accident without requiring their presence at the hearing, (2) it was not the original report, but rather a copy, and (3) it did not include the photographs the police had been requested to produce.* * The court concluded that the plaintiff received a fair and adequate hearing and that substantial evidence existed to support the hearing officer’s findings, but remanded the case to the hearing officer for articulation of the plaintiff’s request for suspension credit. “It is the trial court’s decision that is appealed from, not that of the [hearing officer], and it is the trial court’s decision that we review.” Gallacher v. Commissioner of Revenue Services, 221 Conn. 166, 176, 602 A.2d 996 (1992).

The trial court found that the hearing officer properly admitted the police report and the hearsay statements of the two witnesses contained therein without requiring the witnesses’ presence at the hearing. We agree with the trial court. Initially, it must be noted that “ ‘[i]t is fundamental that administrative tribunals are not strictly bound by the rules of evidence and that they may consider exhibits which would normally be incompetent in a judicial proceeding, so long as the evidence is reliable and probative.’ ” Griffin v. Muzio, 10 Conn. App. 90, 93, 521 A.2d 607, cert. denied, 203 Conn. 805, 525 A.2d 520 (1987), quoting Lawrence v. Kozlowski, 171 Conn. 705, 710, 372 A.2d 110 (1976), cert. denied, 431 U.S. 969, 97 S. Ct. 2930, 53 L. Ed. 2d 1066 (1977); see also Casella v. Civil Service Commission, 4 Conn. App. 359, 362, 494 A.2d 909 (1985), aff’d, 202 Conn. 28, 519 A.2d 67 (1987). Evidence in written form is not, as a matter of law, inadmissible in an administrative hearing unless it substantially prejudices a party. Carlson v. Kozlowski, 172 Conn. 263, 266, 374 A.2d 207 (1977). Moreover, hearsay evidence is not prohibited in administrative proceedings by the Uniform Administrative Procedure Act, which permits the introduction of oral or documentary evidence. Tomlin v. Personnel Appeal Board, 177 Conn. 344, 348, 416 A.2d 1205 (1979).

The plaintiff bears the burden of demonstrating that a hearing officer’s evidentiary ruling is arbitrary, illegal or an abuse of discretion. Connecticut Natural Gas Corporation v. Public Utilities Control Authority, 183 Conn. 128, 139, 439 A.2d 282 (1981). Where such a showing has been made the administrative order must be invalidated. Lawrence v. Kozlowski, supra, 723.

The plaintiff has wholly failed to make such a showing. He relies on our Supreme Court decision in Carl son v. Kozlowski, supra, where the court addressed whether affidavits of witnesses to an accident were properly submitted at the administrative hearing despite the fact that the witnesses were not present. The only witness who testified at the hearing was the investigating police officer. The only evidence pointing to the plaintiffs culpability was contained in the affidavits of four witnesses to the accident who were not present at the hearing. The affidavits were admitted over the plaintiffs objection. In reviewing this claim, the Supreme Court relied on the fact that the evidence challenged by the plaintiff was the only evidence indicating the plaintiffs culpability. The court stated that “[i]f hearsay evidence is sufficiently trustworthy to be considered ‘ “substantial evidence” ’ and it is the only evidence probative of the plaintiffs culpability, its use to support the agency decision would be prejudicial to the plaintiff, absent a showing, which has not been made here, that the appellant knew it would be used and failed to ask the commissioner to subpoena the witnesses.” (Emphasis added.) Id., 267.

This case is more like Lawrence v. Kozlowski, supra, than Carlson v. Kozlowski, supra. In Lawrence, an administrative hearing was conducted to determine whether the plaintiff was responsible for an automobile accident. The plaintiff challenged the admission of various reports indicating he was responsible for the accident and that he had pled nolo contendere to a charge of negligent homicide. The court concluded that “[e]ven if the challenged documents had been excluded the commissioner’s conclusion was supported from other substantial evidence.” Lawrence v. Kozlowski, 714-15.

As in Lawrence and unlike Carlson, the documents challenged here, were not the only evidence indicative of the plaintiff’s culpability. Giving the plaintiff the benefit as to each of his evidentiary claims, there remained substantial evidence from which the hearing officer could reasonably have concluded that the plaintiff “caused or contributed [to] and is responsible for the death of Louise Grumblatt.” The plaintiffs admission of liability in his statement to Kubish, the physical evidence Kubish observed at the scene of the accident, including the skid marks, the position of the vehicles, the damage sustained by the vehicles and the remainder of the police report, including the diagram of the accident scene and the vehicle damage record, are individually and collectively sufficient to substantiate the hearing officer’s finding. Additionally, because it is highly likely that the plaintiff knew the police report would be introduced at the hearing and failed to subpoena the witnesses, the plaintiff has not sustained his burden of proving that he was substantially prejudiced by the hearing officer’s reliance on improper evidence. See Reconstruction Finance Corporation v. Banker’s Trust Co., 318 U.S. 163, 170, 63 S. Ct. 515, 87 L. Ed. 2d 680 (1942).

The trial court also found that the hearing officer properly admitted a copy of the police report rather than the original which had been destroyed. The plaintiff claims that the trial court improperly reached this conclusion and relies on an unreported Superior Court case.

As defined by our Supreme Court, the best evidence rule requires a party to produce an original writing, if it is available, when the terms of that writing are material and must be proved. Brookfield v. Candlewood Shores Estates, Inc., 201 Conn. 1, 10, 513 A.2d 1218 (1986); see also B. Holden & J. Daly, Connecticut Evidence (1988) § 82 (a). The “ ‘basic premise justifying the rule is the central position which the written word occupies in the law.’ ” Brookfield v. Candlewood Shores Estates, Inc., supra, quoting C. McCormick, Evidence (1984) § 230; see also Coelm v. Imperato, 23 Conn. App. 146, 150, 579 A.2d 573 (1990); Morales v. Saint Francis Hospital & Medical Center, 9 Conn. App. 379, 382, 519 A.2d 86 (1986), cert. dismissed, 202 Conn. 807, 520 A.2d 1287 (1987). Although the plaintiff objected to the introduction of the copy and Kubish testified that he was unsure whether there had been changes made to the copy, the plaintiff offered no evidence that the copy was not accurate, nor, in fact, did he dispute the contents of the copy. See Guaranty Bank & Trust Co. v. Dowling, 4 Conn. App. 376, 382, 494 A.2d 1216, cert. denied, 197 Conn. 808, 499 A.2d 58 (1985). Also, the plaintiff offered no evidence in support of his claim that he was substantially prejudiced by the introduction of the copy. The trial court, therefore, properly concluded that the copy of the investigation report was admissible.

Finally, the trial court found the plaintiffs claim regarding the absent accident photographs to be without merit. The court reasoned that although Kubish failed to bring the photographs to the hearing as requested, the plaintiff could not show that he was substantially prejudiced by their absence. Furthermore, he failed to request a continuance for the purpose of securing the photographs. The plaintiff’s failure to request a continuance indicates a willingness to continue with the proceeding. State v. Festo, 181 Conn. 254, 266, 435 A.2d 38 (1980). Because the plaintiff failed to request a continuance to secure the photographs, he cannot now complain that he was prejudiced by their absence. See State v. Jones, 205 Conn. 723, 725, 535 A.2d 808 (1988); State v. Richardson, 204 Conn. 654, 670, 529 A.2d 1236 (1987); State v. Williams, 203 Conn. 159, 171, 523 A.2d 1284 (1987).

The judgment is affirmed.

In this opinion the other judges concurred.

       The police report contained the following statement from the plaintiff which was given to Kubish at the scene: “I was traveling south on 95 coming from Norwalk Exit 15 connector leaving work (New England Mobil Communications, Inc.) heading to my girlfriend’s house in Stamford. I was between the left and center lane (in the middle of a lane change) someone behind me flashed their high beams. I saw the flash of light, so I reached up and adjusted my mirror at the same time I was turning the wheel. By the time I looked back down from the mirror I saw the red brake lights and then I hit him (the brown car) in the rear. Out of the corner of my eye I saw the car go over the rail. I stopped on the right shoulder and ran down to the other car to see if they were alright. At the time of the incident, around 9:30 p.m. I was driving my car a 1984 Toyota Célica GT, color red bearing CT registration 587-PDA.”

       General Statutes § 14-111 (e) provides in pertinent part: “suspension of license after fatal accident. The commissioner shall not suspend the license of any operator concerned in any motor vehicle accident resulting in the death of any person solely because such death has occurred, unless the facts as ascertained by the commissioner, after a hearing, indicate responsibility on the part of such operator for such accident, and, if, after such hearing, the commissioner finds that such operator has caused or contributed to such death through the violation of any provision of this chapter or of chapter 248 or through negligence or carelessness, such suspension shall be for not less than one year. . . .”

       The contents of the police report that were introduced into evidence at the hearing included, but were not limited to, the following: an incident report and supplement thereto, vehicle damage records, statements of the plaintiff and two witnesses, a diagram of the accident scene, two reports indicating the nature of the photographs taken, and the five page investigation report of Trooper Joseph Kubish.

       Although police reports are admissible under the business records exception to the hearsay rule; Hutchinson v. Plante, 175 Conn. 1, 4, 392 A.2d 488 (1978); statements of witnesses repeated in the report do not fall within this exception because the witnesses are not engaged in the business of reporting their observations of automobile accidents. Id., 4-5. The plaintiff’s statement contained in the police report, however, is admissible as an admission. Swenson v. Sawoska, 215 Conn. 148, 151, 575 A.2d 206 (1990).

       Moreover, “the best evidence rule ‘at common law is a preferential, rather than an exclusionary rule.’ Comment on Rule 602 Clause (a) of the Model Code of Evidence (American Law Institute) p. 301 . . . .” Brookfield v. Candlewood Shores Estates, Inc., 201 Conn. 1, 12, 513 A.2d 1218 (1986).


author: Lavery, J.

text:
    John W. Colleran et al. v. Sandra Cassidento
    (10067)
    O’Connell, Norcott and Lavery, Js.
    Argued December 3, 1991
    decision released April 21, 1992

      Charles F. Brower, with whom, on the brief, was Annmarie E. Bushka, for the appellant (defendant).

      John W. Colleran, with whom was CarlM. Porto, for the appellees (plaintiffs).
   Lavery, J.

This is an appeal from the judgment of the trial court granting an application to vacate an arbitration award based on a lack of notice to the plaintiffs as required by General Statutes § 52-413.

The defendant claims that the trial court improperly granted the plaintiffs’ application because (1) the plaintiffs successfully asserted that they were not parties to the arbitration agreement thereby estopping them from later asserting an inconsistent position, (2) the plaintiffs were not parties to the arbitration agreement and, thus, lacked standing to file the application to vacate the arbitration award pursuant to General Statutes § 52-418, and (3) the trial court incorrectly determined that the defendant had claimed that there had been adequate notice to the plaintiffs. We affirm the judgment of the trial court vacating the arbitration award.

Prior to the hearing on the application to vacate, the parties agreed that the trial court could consider all attachments to the briefs as full exhibits. The following facts can be gleaned from the exhibits. Carmel Hollow Associates Limited Partnership is the owner of a large subdivision in Bethlehem. A limited partnership agreement was executed by Whitehead-Mathis, Inc., general partner and owner of 75 percent; John W. Col-leran, limited partner and owner of 15 percent; and Robert Patent, limited partner and owner of 10 percent. The agreement was signed on behalf of Whitehead-Mathis, Inc., by H. Sean Mathis, president. The agreement, signed in 1986, contained a buyout provision that set forth the procedure to be followed when a partner wanted to dispose of his or its interest.

In 1988, a “SECOND ADDENDUM TO PARTNERSHIP AGREEMENT” (the addendum) was executed by Whitehead-Mathis, Inc., and the defendant. The addendum was also signed on behalf of Whitehead-Mathis, Inc., by H. Sean Mathis, president. On March 29, 1990, the defendant filed a demand for arbitration in which she stated that she was a partner in Carmel Hollow Associates. The demand named “Partners in Car-mel Hollow Associates, Thomas Donegan, Jean Donegan, John W. Colleran, Esq., H. Sean Mathis, Whitehead-Mathis, Inc., and Robert Patent” as respondents. She characterized the dispute as one to determine “the method, procedure and valuation of the claimant’s interest in Carmel Hollow Associates.” The defendant sought “that the value of [her] interest in the partnership be determined for purposes of the mandatory buyout required by the agreement.” The defendant based her demand not on the original partnership agreement, but on the addendum. The plaintiffs, John Colleran and Thomas Donegan, were served with the demand for arbitration along with the other respondents.

A great deal of communication between the plaintiffs and the American Arbitration Association (AAA) regarding whether the plaintiffs were proper parties to the arbitration followed. On May 11, 1990, the AAA determined that there was an issue of arbitrability and that it would proceed with arbitration “in accordance with the document containing the arbitration provision.” The AAA went on to state that “the parties to that document are Whitehead-Mathis, Inc., and Sandra Levy (Cassidento).”

The AAA and the defendant’s attorney, however, continued to refer to the case as “Sandra Levy Cas-sidento v. Donegan et al. ” Further, the plaintiffs continued to receive all the communications that a party to an arbitration normally receives, including information concerning arbitrator selection and hearing scheduling.

On September 21, 1990, an unofficial source informed the plaintiffs that the case was scheduled for a hearing on September 27, 1990. They immediately contacted the AAA, asserting that they had never been removed as parties. They expressed concern that the defendant mistakenly believed that a final decision would be binding on them pursuant to the partnership agreement’s buyout provision because Whitehead-Mathis, Inc., had signed as general partner of the limited partnership. The letter further stated that the plaintiffs had insufficient time to prepare for the hearing, and that they had received no official notice of the hearing. The plaintiffs requested that the hearing be postponed until a proper decision could be made as to who the parties were and who would be bound by any decision.

On September 24, 1990, Colleran again contacted the AAA, this time sending a prepared amended submission to be signed by the defendant. By this amended submission, the plaintiffs sought to make clear that the proceeding was against only Whitehead-Mathis, Inc., and not the plaintiffs, the partnership, or Whitehead-Mathis, Inc., in its capacity as general partner. The defendant refused to sign the amended submission.

The next day, Colleran again contacted the AAA, stating, in part: “Attorney Brower has refused to sign [the amended submission]. Regardless of the ambiguous wording in his last two letters, I am still concerned that he is attempting to circumvent the ruling of the Association by arguing that the original document was signed by Whitehead-Mathis, Inc., as my agent, and therefore he is still looking for an arbitration decision that would be binding upon me. His absolute refusal to sign the Amended Submission seemed to verify that position.” (Emphasis in original.) In this letter, he again requested that the hearing be postponed until a decision could be made as to the proper parties to the arbitration proceeding, and until the plaintiffs could sufficiently prepare for the hearing.

The AAA refused the plaintiffs’ request, and the hearing took place as scheduled, and the arbitrator entered an award of $227,000 against Whitehead-Mathis, Inc., and H. Sean Mathis. It also ordered that the arbitrator’s fee, administration fees and expenses should all be borne equally “by the parties.” The plaintiffs then filed an application to vacate the arbitration award pursuant to General Statutes § 52-418. The plaintiffs based the application on General Statutes § 52-413, asserting that they did not receive notice of the hearing and that the AAA refused to postpone the hearing.

At the hearing on the application to vacate, the defendant’s attorney mentioned, for the first time, that an “Amended Demand for Arbitration” had been filed on September 27, 1990. There was no certification on the document and none of the individual respondents or their attorneys had knowledge of such a document. Likewise, the AAA had no knowledge of the document, as it was nowhere reflected in the official file. It was, however, in the possession of the arbitrator. The document purported to substitute the following respondents in place of the original respondents: “Respondents: Whitehead-Mathis, Inc., and/or Litchfield Asset Holdings, successor to Whitehead-Mathis, Inc., a corporate general partner of Carmel Hollow Associates. ’ ’ (Emphasis added.) The defendant had also filed an application for an order confirming the award in which she requested that the trial court confirm the $227,000 award against Whitehead-Mathis, Inc., “a corporate general partner of Carmel Hollow Associates.” (Emphasis added.)

At the hearing on the application to vacate, the parties conceded that the arbitrator did not notify the plaintiffs of the arbitration hearing. The trial court granted the plaintiffs’ motion to vacate on the ground that the plaintiffs were not given notice of the hearing as required by General Statutes § 52-413. No motion for articulation was sought by the defendant.

On appeal, the defendant does not claim that the plaintiffs received notice, but rather that the plaintiffs should be estopped from attacking the arbitration award by reason of their successful request to the AAA to be removed as parties.

The law of estoppel was set forth in Reinke v. Greenwich Hospital Assn., 175 Conn. 24, 392 A.2d 966 (1978), which also involved an arbitration situation. “ ‘There are two essential elements to an estoppel—the party must do or say something that is intended or calculated to induce another to believe in the existence of certain facts and to act upon that belief, and the other party, influenced thereby, must actually change his position or do some act to his injury which he otherwise would not have done.’ ...” (Citations omitted.) Id., 28; Hanover Ins. Co. v. Fireman’s Fund Ins. Co., 217 Conn. 340, 351, 586 A.2d 567 (1991). Further, “ ‘it is the burden of the person claiming the estoppel to show that he exercised due diligence to ascertain the truth and that he not only lacked knowledge of the true state of things but had no convenient means of acquiring that knowledge.’ ...” (Citations omitted.) Reinke v. Greenwich Hospital Assn., supra, 28-29; O’Sullivan v. Bergenty, 214 Conn. 641, 650, 573 A.2d 729 (1990). There is no merit to the defendant’s claim of estoppel. The plaintiffs failed to act in a manner calculated or intended to mislead the defendant. Rather, the plaintiffs’ position, as evidenced by the exhibits, was clear— any agreement that existed between the defendant and Whitehead-Mathis, Inc., was not binding on the partnership. The plaintiffs went to great lengths to bring their position home, both to the defendant and to the AAA.

Colleran sought clarification from both the defendant and AAA as to whether the defendant sought to bind the plaintiffs, even requesting a postponement of the hearing if it was the defendant’s position that the agreement between the defendant and Whitehead-Mathis, Inc., bound the partnership. Colleran made this position perfectly clear when he submitted the amended submission to the defendant and to the AAA. The letter from the AAA that the defendant asserts removed the plaintiffs from the arbitration stated only that “[w]e will proceed with further administration of this matter in accordance with the document containing the arbitration provision. The parties to that document are Whitehead Mathis, Inc., and Sandra Levy (Cas-sidento).” This can hardly be regarded as a definitive decision by the AAA that the plaintiffs were not parties to the arbitration and would not be bound by the arbitrator’s decision, especially in light of the language of the addendum itself that “all relevant terms and conditions of the Partnership are incorporated by reference herein.”

From the plaintiffs’ letters to the defendant and the AAA, it is evident that the plaintiffs were not misleading the defendant. They zealously sought to confirm that the defendant was not seeking to bind the partnership. After a thorough examination of the documents that were admitted as exhibits before the trial court, we conclude that the defendant’s claim of estop-pel is not supported by the evidence. Reinke v. Greenwich Hospital Assn., supra.

The defendant’s next claim is that the plaintiffs lack standing to apply to vacate the arbitration award within the meaning of General Statutes § 52-418 because they were not parties to the arbitration agreement or the arbitration proceedings. This claim is also without merit. The defendant’s demand for arbitration explicitly named the plaintiffs as parties. The defendant’s amended demand for arbitration named “Whitehead-Mathis, Inc., and/or Litchfield Asset Holdings, successor to Whitehead-Mathis, Inc., a corporate General Partner of Carmel Hollow Associates.” While the original demand explicitly named the plaintiffs as parties, the second demand implicated the plaintiffs by naming Carmel Hollow Associates’ general partner as a party.

The defendant claims that the agreement (the addendum) was between the defendant and Whitehead Mathis, Inc., and not between the defendant and the partnership and, thus, the plaintiff should not be considered parties to the arbitration. The correspondence from the plaintiffs indicated their position that the partners and the partnership were not bound by the agreement between the defendant and Whitehead-Mathis, Inc. The plaintiffs wanted to present their argument to the arbitrator so as to avoid any potential liability.

The plaintiffs were named as parties by the defendant. An amended submission naming the general partner as respondent was not filed by the defendant until the date of the hearing. Section 52-413 requires the arbitrator to give notice to the parties of the time and place for the hearing. It is undisputed that neither the arbitrator nor the AAA sent the plaintiffs, named parties to the arbitration proceeding, notice of the hearing as required by General Statutes § 52-413. Consequently, the application to vacate was properly granted.

Finally, the defendant claims that the trial court incorrectly found that her position was that there had been adequate notice to the plaintiffs. The defendant quotes that portion of the memorandum of decision that states “[t]he defendant claims that the plaintiffs were aware of the arbitration hearing by reason of correspondence attached.” The defendant asserts that this statement by the trial court indicates that the court failed to read the exhibits attached to her memorandum. We disagree. Perhaps the defendant failed to make her position clear to the court. No motion for articulation was filed. Given the numerous exhibits before the court, and the lack of testimony offered by either party, we conclude that the facts as found in the memorandum of decision were adequately supported by the evidence. Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980); Forox Corporation v. Groppo, 24 Conn. App. 72, 77, 585 A.2d 707 (1991).

The judgment is affirmed.

In this opinion the other judges concurred.

       These exhibits consisted of numerous letters and facsimile transmissions between the parties and the American Arbitration Association, as well as various arbitration related documents. This was the only evidence before the court. No oral testimony was offered.

       The “SECOND ADDENDUM TO PARTNERSHIP AGREEMENT” provides: “WHEREAS WTiitehead-Mathis, Inc., is the owner of record of a seventy-five percent (75%) interest in Carmel Hollow Associates, and is a signatory to a Partnership Agreement dated December 4,1986 between Whitehead-Mathis, Inc., John Colleran and Robert Patent, Whitehead-Mathis agrees and all parties to this Addendum agree that all relevant terms and conditions of the Partnership are incorporated by reference herein.
      “Now Whitehead-Mathis, Inc. acting through its President who is duly authorized, states and agrees as follows:
      “1. Whitehead-Mathis, Inc., is the actual owner of only 25% of the partnership known as Carmel Hollow Associates. Although it appears as the owner of a 75% interest herein.
      “2. It is holding, in trust, interest in Carmel Hollow Associates as follows:
      “25% interest for the benefit of Sandra Levy [Cassidento] so that upon the execution of this document, Whitehead-Mathis is the owner of a fifty percent (50%) interest in Carmel Hollow Associates.
      “In the event that there is a dispute among the signatories to this Addendum, each party waives its right to a judicially enforced sale of its partnership interest, but agrees to binding arbitration by the American Arbitration Association as to the value of each interest herein. Once said value has been determined, the purchasing and remaining partners shall be free to offer the property to any other purchaser at fair market value.”

       We note, however, that the addendum stated that “all relevant terms and conditions of the Partnership are incorporated by reference herein.”

       The amended submission provided in part: “The undersigned hereby deletes from the Demand for Arbitration dated March 29, 1990, Thomas Donegan, Jean Donegan, John W. Colleran and Robert Patent as parties to the Arbitration. . . . [N]o claim is being made that Whitehead-Mathis, Inc., was acting in any manner so as to bind Carmel Hollow Associates or any of its partners other than Whitehead-Mathis, Inc., and no claim is being made that Carmel Hollow Associates, or any of its partners, other than Whitehead-Mathis, Inc., are in any way involved in any ‘mandatory buyout.’ ”

       General Statutes § 52-413 provides: “hearing; time and place; adjournment. The arbitrators to an arbitration matter shall appoint a time and place for the hearing and notify the parties thereof. Upon application of either party and for good cause shown, the arbitrators shall postpone the time of the hearing. The arbitrators may adjourn any hearing, from time to time, as may be necessary. Any postponement or adjournment shall not extend the time, if any, fixed in the arbitration agreement, for rendering the award.”

       In Reinke v. Greenwich Hospital Assn., 175 Conn. 24, 392 A.2d 966 (1978), prior to the arbitration hearing the parties orally agreed that it was not necessary for the arbitrator to take an oath. The unsuccessful party, however, applied to the trial court to vacate the award, and it was vacated. Our Supreme Court affirmed the trial court’s judgment because the waiver was not in writing as specifically required by the relevant provisions of the General Statutes.

       General Statutes § 52-418 provides that only a “party” to an arbitration may make an application to Superior Court to vacate the arbitration award.

       The plaintiffs correctly believed that if an award was made against the general partner or partnership they would be liable. Dayco v. Fred T. Roberts & Co., 192 Conn. 497, 504, 472 A.2d 780 (1984).

       In Bennett v. Header, 208 Conn. 352, 364, 545 A.2d 553 (1988), our Supreme Court concluded that there must be strict adherence to all the statutory requirements of General Statutes §§ 52-408 through 52-424, which govern arbitration, or an award will be vacated. See also Reinke v. Greenwich Hospital Assn., 175 Conn. 24, 392 A.2d 966 (1978).