author: SPEAR, J. O’CONNELL, J.,

text:
    PATRICIA B. CROSS v. PAUL HUDON, CONSERVATOR (ESTATE OF HELEN A. BENNY), ET AL.
    (14730)
    Dupont, C. J., and O’Connell and Spear, Js.

      Argued April 24
    officially released July 2, 1996

      Vincent F. Sabatini, with whom, on the brief, was Sandra Rachel Baker, for the appellant (substitute defendant).

      Vincent E. Roche, for the appellee (plaintiff).
   SPEAR, J.

The defendant Karen Renzulli Lynch (defendant), successor administrator d.b.n.c.t.a., appeals from the $170,546.35judgment of the trial court in favor of the plaintiff, Patricia B. Cross. The defendant claims that the trial court improperly found that (1) the plaintiffs action against the estate of Helen Benny was proper, (2) the plaintiff properly and timely substituted the executrix of Benny into the action upon Benny’s death, (3) the plaintiffs action was timely brought pursuant to General Statutes § 45U-363, and (4) the plaintiff established a claim under the equitable theory of unjust enrichment. We disagree with the defendant’s claims and affirm the judgment of the trial court.

The record discloses the following relevant facts. The plaintiff was the daughter and guardian of Helen Benny, a resident of Massachusetts. As guardian, the plaintiff expended her personal funds to pay for the care of her mother. Benny’s estate consisted of two parcels of real estate located in Connecticut that were devised to her other daughter, Rosalie Benny Zanoni. On February 2, 1989, the Newington Probate Court appointed Paul Hudon as conservator of Benny’s estate for the purpose of administering the two Connecticut parcels. In March, 1989, the plaintiff brought this action against Hudon as conservator seeking reimbursement for the funds she had expended caring for Benny.

Benny died on August 7, 1989. Pursuant to Benny’s will, Zanoni was appointed executrix of Benny’s estate. The plaintiff subsequently amended her complaint and, on January 9,1990, substituted Zanoni as the defendant in lieu of Hudon. On January 31, 1990, the plaintiff filed a claim against Benny’s estate that was denied by Zanoni, as executrix, on March 28,1990. The Newington Probate Court subsequently removed Zanoni as executrix of the estate, and appointed Richard Pikor as administrator d.b.nx.t.a. Pikor later resigned and the defendant was appointed as successor administrator d.b.n.c.t.a. By motion dated December 30, 1992, the plaintiff substituted the defendant in the action. The defendant filed a motion for summary judgment that was denied by the trial court on February 24, 1993.

After a trial, the court rendered judgment in favor of the plaintiff in the amount of $170,546.35, and this appeal by the defendant followed.

I

The defendant first challenges the trial court’s finding that the plaintiff properly brought suit against Hudon. The defendant argues that the plaintiffs suit against Hudon is improper because it is, in effect, a suit against Benny, her ward. The defendant principally relies on our decision in Caron v. Adams, 33 Conn. App. 673, 681, 638 A.2d 1073 (1994), for the proposition that “[i]t is a general rule that an action at common law cannot be maintained between a guardian and a ward . . . .” The defendant’s reliance on Caron, however, is misplaced.

In Caron, the plaintiff, a ward of the state, instituted an action against his guardian, the commissioner of the department of children and youth services (DCYS), to recover damages for personal injuries sustained as a result of the guardian’s alleged failure to provide services to disabled children. Because we found that the interests of the ward and his guardian “appear to have been adverse,” we concluded that the statute of limitations for bringing such suit should be tolled until the court appointed a new guardian or until the plaintiff reached the age of majority. Id., 683.

In the present case, the plaintiff, as guardian, brought suit against her ward’s conservator to recover personal funds that were expended caring for her ward. Unlike the suit instituted in Caron, the action here did not involve a direct claim between the guardian and the ward. Rather, the claim was brought by the plaintiff against the ward’s conservator. This emerges as a crucial distinction when we examine cases from other jurisdictions that the defendant also cites in support of her argument that the plaintiff, as guardian, is precluded from instituting an action against her ward’s conservator. See Clarke v. Hickman, 307 F.2d 660 (D.C. Cir. 1962); Davis v. Davis, 135 Mss. 214, 99 So. 673 (1924); Briggs v. Briggs, 162 Tex. 177, 346 S.W.2d 106 (1961). In each of those cases, the guardian brought suit directly against the ward while the guardian retained control over the management of the ward’s estate. Consequently, there existed an obvious conflict that warranted action by the court to cure the potential for inequity. That potential for inequity does not exist in this case because the guardian, who sought reimbursement from the assets of Benny’s estate, had no control over those assets.

Furthermore, our Supreme Court has long recognized the right of a guardian to seek reimbursement for reasonable expenses incurred while caring for his or her ward. Palmer v. Hartford National Bank & Trust Co., 160 Conn. 415, 279 A.2d 726 (1971); Hewitt v. Beattie, 106 Conn. 602, 138 A. 795 (1927); see also 39 Am. Jur. 2d, Guardian and Ward §§ 179, 181 (1968). Under the circumstances here, we conclude that the plaintiff properly brought suit against Hudon as conservator of Benny’s assets.

The defendant claims, in the alternative, that even if the suit was properly brought, it abated upon the death of Benny because Hudon’s conservatorship ceased by operation of law when Benny died. The defendant asserts that to preserve her claim against Benny’s estate, the plaintiff was required to institute a new suit against the executrix of the estate.

We agree with the defendant that Hudon’s conservatorship ceased upon the death of Benny. Kleinman v. Marshall, 192 Conn. 479, 483, 472 A.2d 772 (1984). This cessation, however, does not destroy the cause of action filed by the plaintiff. The plaintiffs action was not brought against Hudon personally, but against Benny’s estate for funds personally expended by the plaintiff to care for Benny. “This suit was brought against [the estate of] a living individual during her lifetime to collect a claim against her [estate] .... By her death, the cause of action was not lost nor destroyed nor even suspended. By the express terms of our statute ... it survived and was continued against her [executor].” Raymond v. Bailey, 98 Conn. 201, 210, 118 A.2d 915 (1922). Likewise, we conclude that the plaintiffs suit against Hudon as conservator survived the death of Benny pursuant to General Statutes § 52-599.

Section 52-599 provides that “(a) A cause or right of action shall not be lost or destroyed by the death of any person, but shall survive in favor of or against the executor or administrator of the deceased person.” Subsection (b) further provides that “[a] civil action or proceeding shall not abate by reason of the death of any party thereto, but may be continued by or against the executor or administrator of the decedent. ... If a party defendant dies, the plaintiff, within one year after receiving written notification of the defendant’s death, may apply to the court in which the action is pending for an order to substitute the decedent’s executor or administrator in the place of the decedent, and, upon due service and return of the order, the action may proceed.”

The defendant, relying on § 52-599 (b), claims that § 52-599 applies to save an action only when a party to that action dies. Because Benny was not a party, she argues that the action should not survive Benny’s death. We disagree. The plaintiffs action was brought against Hudon as a representative of Benny and her estate. The fact that the plaintiff sued Benny’s fiduciary and not Benny for the collection of personal funds expended caring for Benny should not bar the application of § 52-599. The trial court correctly noted, in its memorandum of decision, that “[t]o say that the result in this case as to survivorship of the action should be different because the original action was not brought against Benny as an individual . . . but against her conservator exalts form over substance.” We, thus, hold that § 52-599 applies, and that the plaintiffs cause of action was not lost or otherwise destroyed when Benny died.

II

The defendant next argues that, even if we conclude that § 52-599 applies to save the action, the plaintiff failed to substitute Zanoni into the action within the one year time limitation of § 52-599 (b).

In her answer to the plaintiffs substituted complaint, the defendant admitted the allegation made by the plaintiff in paragraph ten of the complaint. Paragraph ten alleges: “On January 22, 1990, by agreement of the parties and order of the Court (Freed, J.), Rosalie Benny Zanoni, as executrix was substituted as the party defendant in lieu of the conservator Paul Hudon who was allowed to withdraw.” (Emphasis added.) “The admission of the truth of an allegation in a pleading is a judicial admission conclusive on the pleader. ” Rodearmel v. Rodearmel, 173 Conn. 273, 275, 377 A.2d 260 (1977); see also West Haven Sound Development Corp. v. West Haven, 201 Conn. 305, 312, 514 A.2d 734 (1986); Argentinis v. Gould, 23 Conn. App. 9, 18, 579 A.2d 1078 (1990), rev’d in part on other grounds, 219 Conn. 151, 592 A.2d 378 (1991). Having judicially admitted that the parties agreed to substitute Zanoni into the action, the defendant cannot now complain that such substitution was improper.

Ill

The defendant also claims that the plaintiff violated the time requirements of § 45a-363 by failing to commence a suit against Benny’s estate within 120 days after the executrix rejected her claim. Accordingly, the defendant argues that the plaintiff should be precluded from recovering a judgment against the estate.

After Benny’s death, the plaintiff filed a notice of claim. Zanoni, as executrix, rejected the claim on March 28, 1990. The plaintiff did not thereafter commence a new suit within 120 days nor did she file an application with the Probate Court pursuant to General Statutes § 45a-364. Instead, the plaintiff pursued the original action she had filed prior to Benny’s death. The dispositive issue is whether an action filed before the decedent’s death that survives the death pursuant to § 52-599 eliminates the need for commencing a suit pursuant to § 45a-363. The defendant claims that the failure to file a new action violates the express language of § 45a-363. The plaintiff counters that the statute does not contemplate that she must reinitiate an action that is pending before the court. We agree with the plaintiff.

Our rules of statutory construction are well established. In construing statutes, we must use common sense and must not interpret statutes to yield bizarre and irrational results. Stamford Ridgeway Associates v. Board of Representatives, 214 Conn. 407, 426-27, 572 A.2d 951 (1990); Columbia Federal Savings Bank v. International Site Consultants, Inc., 40 Conn. App. 64, 69, 669 A.2d 594, cert. denied, 236 Conn. 910, 671 A.2d 824 (1996). It would be irrational and, as the trial court noted, a “particularly draconian interpretation” to require the plaintiff, who had initiated an action prior to Benny’s death, to file a new action upon Benny’s death and upon the rejection of her claim when the new action would seek the same relief as requested in the original action.

We are further guided by our Supreme Court’s decision in Raymond v. Bailey, supra, 98 Conn. 201. There, the court, in addressing an earlier statute that also required the presentment of claims prior to commencing suit, emphasized that “[t]here is no reason for the application of this statute to a claim which has already been presented to a person in a suit pending at the time of [her] death, in which [her] administrator is afterward substituted as defendant, either by his own motion or by process of scire facias under the statute of survival of actions. The terms of the [statute] plainly indicate that no such application was intended.” Id., 211-12. Having already concluded that the plaintiffs action brought against the estate of Benny survived Benny’s death, we now conclude that the commencement of that suit satisfies the requirements of § 45a-363 (b).

IV

The defendant last challenges the trial court’s finding that the plaintiff established a claim under the equitable theoiy of unjust enrichment. She asserts that the plaintiff should not recover because she volunteered the funds for the care and maintenance of Benny. We are not persuaded.

“ ‘A right of recovery under the doctrine of unjust enrichment is essentially equitable, its basis being that in a given situation it is contrary to equity and good conscience for one to retain a benefit which has come to him at the expense of another. . . . Connecticut National Bank v. Chapman, 153 Conn. 393, 399, 216 A.2d 814 [1966]. With no other test than what, under a given set of circumstances, is just or unjust, equitable or inequitable, conscionable or unconscionable, it becomes necessary in any case where the benefit of the doctrine is claimed, to examine the circumstances and the conduct of the parties and apply this standard. . . . Providence Electric Co. v. Sutton Place, Inc., 161 Conn. 242, 246, 287 A.2d 379 (1971)____Plaintiffs seeking recovery for unjust enrichment must prove (1) that the [recipients] were benefited, (2) that the [recipients] unjustly did not pay the plaintiffs for the benefits, and (3) that the failure of payment was to the plaintiffs’ detriment.’ Hartford Whalers Hockey Club v. Uniroyal Goodrich Tire Co., 231 Conn. 276, 282-83, 649 A.2d 518 (1994).” Barbara Weisman, Trustee v. Kaspar, 233 Conn. 531, 550, 661 A.2d 530 (1995).

Moreover, the trial court’s factual findings as to whether the plaintiff has established a claim under the theory of unjust enrichment “must stand . . . unless they are clearly erroneous or involve an abuse of discretion. . . . This limited scope of review is consistent with the general proposition that equitable determinations that depend on the balancing of many factors are committed to the sound discretion of the trial court.” (Citation omitted.) Hartford Whalers Hockey Club v. Uniroyal Goodrich Tire Co., supra, 231 Conn. 283.

Applying these standards to the present case, we conclude that the trial court did not abuse its discretion in determining that the plaintiff was entitled to recover under the theory of unjust enrichment. No dispute exists as to whether Benny was benefited by the funds used by the plaintiff to care for her mother. The plaintiff made payments for Benny’s nursing home care, medical expenses, and maintenance of Benny’s property.

The defendant questions whether Benny “unjustly did not pay the plaintiff for the benefits ....'” See Barbara Weisman, Trustee v. Kaspar, supra, 233 Conn. 550. She claims that Benny neither requested such benefits nor knew that she was receiving them. The defendant argues that the plaintiff, instead, volunteered the funds as a gift to her mother, and, therefore, she, as Benny’s fiduciary, should not be obligated to repay the plaintiff.

The trial court found that the plaintiffs financial contributions were not made with the requisite donative intent to constitute a gift. See Devitt v. Manulik, 176 Conn. 657, 663, 410 A.2d 465 (1979); Kukanskis v. Jasul, 169 Conn. 29, 34, 362 A.2d 898 (1975). This finding is not clearly erroneous. The evidence revealed that the plaintiff consistently wrote “loan” on the checks that were deposited into Benny’s account. Such evidence supports the trial court’s determination that the plaintiff lacked a donative intent. The trial court, therefore, properly rendered judgment in favor of the plaintiff under the theory of unjust enrichment.

The judgment is affirmed.

In this opinion DUPONT, C. J., concurred.

O’CONNELL, J.,

concurring. I concur in the result reached by the majority but do not agree with its analysis of the issue concerning the propriety of an action between a guardian and her ward. The trial court should have applied the “general rule that an action at common law cannot be maintained between a guardian and a ward while that relationship exists.” Caron v. Adams, 33 Conn. App. 673, 681, 638 A.2d 1073 (1994); 39 Am. Jur. 2d, Guardian and Ward § 160. One who stands in a fiduciary relationship to another should not by legal action destroy that trust as long as the fiduciary relationship exists. Briggs v. Briggs, 162 Tex. 177, 181— 82, 346 S.W.2d 106 (1961). If the plaintiff wanted to sue her ward, she should have resigned from her guardianship before bringing the action.

For a very practical reason, however, I do not urge reversal of this case. This action was commenced in March, 1989, scarcely five months before the death of the plaintiffs ward, at which time the guardianship terminated as a matter of law. See Kleinman v. Marshall, 192 Conn. 479, 483, 472 A.2d 772 (1984). This action continued and this appeal is pursued before us as an action by the former guardian against her mother’s estate. Such an action is proper and nothing would be achieved by dismissing it because the plaintiff was acting contrary to what I believe to be long-standing law when she commenced the suit.

Accordingly, I concur with the majority.

       General Statutes § 45a-363 provides in pertinent part: “(a) No person who has presented a claim shall be entitled to commence suit unless and until such claim has been rejected, in whole or in part, as provided in section 45a-360.
      “(b) Unless a person whose claim has been rejected (1) commences suit within one hundred twenty days from the date of the rejection of his claim, in whole or in part, or (2) files a timely application pursuant to section 45a-364, he shall be barred from asserting or recovering on such claim from the fiduciary, the estate of the decedent or any creditor or beneficiary of the estate, except for such part as has not been rejected. . .

       We initially note that § 52-599 (a) clearly states that the death of “any person” shall not destroy a cause of action.

       See footnote 1.

       General Statutes § 45a-364 provides in pertinent part: “(a) Whenever a claim has been rejected, in whole or in part, as provided in section 45a-360, the person whose claim has been rejected may, within thirty days from and including the date of such rejection, make application to the court of probate to hear and decide such claim or, in the alternative, may apply to said court for the appointment of one or more disinterested persons . . . to be a commissioner or commissioners to hear and decide such claim. . . . The court may, in its discretion, grant the application, hear and decide such claim if the application so requests or appoint such commissioner or commissioners to hear and decide such claim. The court shall notify the applicant and the fiduciary of its action granting or denying the application within fifteen days after receipt of the application.”

       The suit against the conservator is treated as a suit against the ward for purposes of this concurrence.


source: Caselaw Access Project

author: O’CONNELL, J.

license: Public Domain

text:
    PAUL ZANONI ET AL. v. PAUL HUDON ET AL.
    (14344)
    Dupont, C. J., and O’Connell and Spear, Js.

      Argued April 24
    officially released July 2, 1996

      Paul Zanoni, pro se, with whom, on the brief, was Rosalie Zanoni, pro se, the appellants (plaintiffs).

      Karen L. Murdoch, with whom was Ken Ian, certified legal intern, for the appellee (named defendant).
   O’CONNELL, J.

This is a trespass action in which the plaintiffs, Rosalie Benny Zanoni (Rosalie) and Paul Zanoni, appeal from a judgment for the defendant Paul Hudon, rendered after a trial to the court. The plaintiffs claim that the trial court improperly (1) allowed the administrator d.b.n.c.t.a. to withdraw from the case, (2) concluded that the plaintiffs could not maintain a trespass action against the defendant, (3) failed to hold the defendant liable for trespass after August 7, 1989, and (4) failed to determine who owned the property at issue between August 7 and September 25, 1989. We affirm the judgment of the trial court.

The following facts are necessary to resolve this appeal. On February 1, 1989, the Probate Court for the district of Newington appointed the defendant to be the conservator of the estate of Helen Benny who at that time was residing in a nursing home in Massachusetts. Benny’s daughter Rosalie and her husband, Paul Zanoni, are the plaintiffs in this action. Benny’s conservator-ship estate consisted of real property in Wethersfield and Old Lyme. The Old Lyme property, a summer residence, which has been used by various members of the Benny family over the years, is the subject of this action. The plaintiffs had visited the Old Lyme property on weekends and performed numerous maintenance tasks on it.

As conservator, the defendant determined that it was necessary to sell the Old Lyme property to generate income for Benny’s care and outstanding debts. As part of his duties, the defendant changed the locks on the property to secure it for sale. The plaintiffs were thus excluded from the property.

Benny died on August 7, 1989. In her will, Benny devised the Old Lyme property to Rosalie and also nominated her to be the executrix. In early September, 1989, the defendant delivered the keys to the Probate Court. Rosalie was formally approved as executrix on September 25, 1989, at which time the Probate Court gave her the keys to the Old Lyme property.

The plaintiffs brought this action for trespass quare clausum fregit against the defendant individually for alleged dispossession of their property rights in the Old Lyme property. Additional facts are included in the discussion of individual claims.

I

The plaintiffs brought this action in their own names and also in the name of Richard Pikor, who had been appointed administrator, d.b.n.c.t.a. In accordance with Practice Book § 152, Pikor moved that he be stricken as a coplaintiff because he had been so named without his consent and had no desire to initiate this action or to be a party, either individually or in his fiduciary capacity.

The plaintiffs cite no authority, and we are unaware of any, that permits a person to be compelled to be a plaintiff in a lawsuit. The plaintiffs have alleged that the defendant’s trespass infringed on their property rights, but this alleged trespass occurred long before Pikor was appointed as administrator d.b.n.c.t.a. Accordingly, Pikor has been improperly joined as a party plaintiff. Naming an improper person as a party in a legal action constitutes misjoinder. Hartford v. Local 308, 171 Conn. 420, 429, 370 A.2d 996 (1976). The exclusive remedy for misjoinder of parties is by motion to strike. Practice Book § 198. The trial court therefore properly granted Pikor’s motion to strike him as a plaintiff.

II

The plaintiffs next complain that the trial court improperly concluded that they had no basis to bring this trespass action. To maintain an action for trespass, a plaintiff must show either title to the property or actual exclusive possession. Bernardo v. Hoffman, 109 Conn. 158, 161, 145 A. 884 (1929). It is undisputed that Benny was the sole titleholder to the property until her death. In a thorough and detailed memorandum of decision, the trial court expressly found that although the plaintiffs made weekend visits to the property and performed numerous maintenance tasks, these actions did not rise to the level of exclusive possession. “The factual findings of a trial court on any issue are reversible only if they are clearly erroneous. . . . This court cannot retry the facts or pass upon the credibility of the witnesses.” (Citations omitted; internal quotation marks omitted.) Rosick v. Equipment Maintenance & Service, Inc., 33 Conn. App. 25, 40, 632 A.2d 1134 (1993). We conclude that the trial court’s finding that the plaintiffs could not demonstrate either title to or exclusive possession of the Old Lyme property is not clearly erroneous.

The plaintiffs allege that Rosalie’s “vested future interest in the premises .... [b]y virtue of the will” and the plaintiffs’ “contingent interest in the premises acquired through providing maintenance and improvements to the property” allow them to maintain this trespass action. These pro se plaintiffs have handled this case in its entirety without benefit of counsel. In so doing, they have misused established legal terminology to describe their perceived interests in the property. Rather than engage in discussion of the law of future and contingent interests, we simply note that an expectancy of an inheritance is not a future interest and one does not acquire a contingent interest in real property by providing maintenance and improvements on it.

The plaintiffs also contend that Rosalie acquired a present interest in the Old Lyme property because Benny’s will nominated her to be the executrix. “Essentially, a will is a declaration of the testator’s intention as to what shall take place after his death in reference to property left by him. One distinguishing feature of such an instrument is that it has no binding effect during the life of the testator, and is intended to operate only upon and by reason of his death. A will does not confer any present right at the time of its execution. . . . Nothing vests by reason of such a,n instrument during the life of the testator. ” (Emphasis added.) 79 Am. Jur. 2d, Wills § 7 (1975).

Rosalie did not acquire a present interest in the Old Lyme property through an expectancy of inheritance or through a nomination to be the executrix. Accordingly, Rosalie had neither title nor possession upon which to base an action for trespass.

The plaintiff Paul Zanoni lacks even an illusory claim to bring a trespass action. He is not a relative, beneficiary, devisee or creditor of the Benny estate. See Zanoni v. Pikor, 36 Conn. App. 143, 144, 648 A.2d 892 (1994). He is, in legal parlance, a stranger to the proceeding. As such, he has no standing to bring this action.

Additionally, the defendant was a duly appointed conservator pursuant to General Statutes § 45a-650. A conservator’s duties require him to inventory and to manage the real estate of his ward. General Statutes § 45a-655. In order to carry out his duties, it was necessary that he enter the Old Lyme property. See State v. Hyde, 29 Conn. 564, 569 (1861). If a person has a right to enter upon the property, there can be no trespass. See Kellogg v. Robinson, 32 Conn. 335, 342 (1865).

Because the plaintiffs were not the titleholders nor were they in exclusive possession of the property and because the defendant, as a conservator, had a right to enter upon the property, the trial court correctly concluded that the plaintiffs had no basis to bring the action for any acts prior to the death of Benny.

Ill

The plaintiffs next argue that the trial court improperly failed to hold the defendant hable for trespass during the period after Benny’s death on August 7,1989, and before approval of her will on September 25, 1989. Because Rosalie had been named as executrix in Benny’s will, she argues that the defendant’s failure to give her the keys immediately upon her mother’s death constituted a trespass. See part II.

Although title to real estate passes upon death, real property remains under the control of the Probate Court until all charges and debts of the decedent and the estate have been paid. Satti v. Rago, 186 Conn. 360, 365, 441 A.2d 615 (1982); O’Connor v. Chiascione, 130 Conn. 304, 306, 33 A.2d 336 (1943). Rosalie, as a devisee, had no right of possession until the estate was settled. As executrix, Rosalie had no right of possession until the will was admitted to probate and she was approved by the court. Murdoch v. Murdoch, 81 Conn. 681, 686, 72 A. 290 (1909)

A conservatorship automatically terminates with the death of the ward. Kleinman v. Marshall, 192 Conn. 479, 483, 472 A.2d 772 (1984). In this case, the defendant’s conservatorship ended before Rosalie was approved as executrix. Because Rosalie did not have a right to possess the Old Lyme property at the time of Benny’s death, the defendant took the only reasonable course open to him and turned over the keys to the Probate Court. We conclude that his refusal to release the keys to Rosalie directly was proper, and that no action in trespass can be maintained against him for the period between Benny’s death and the approval of her will by the Probate Court.

IV

The plaintiffs finally complain that the trial court failed to determine the ownership of the property between August 7 and September 25, 1989.

These pro se plaintiffs have had extensive exposure to trial and appellate procedure through other cases in which they have participated. See Hudon v. Zanoni, 220 Conn. 930, 599 A.2d 382 (1991); Cross v. Hudon, 42 Conn. App. 59, 677 A.2d 1385 (1996); Zanoni v. Pikor, 36 Conn. App. 143, 648 A.2d 892 (1994); Zanoni v. Saint Patrick’s Manor, 27 Conn. App. 919, 608 A.2d 106 (1992); Cross v. Hudon, 27 Conn. App. 729, 609 A.2d 1021 (1992). “Although we allow pro se litigants some latitude, the right of self-representation provides no attendant license not to comply with relevant rules of procedural and substantive law.” (Internal quotation marks omitted.) Lemoine v. McCann, 40 Conn. App. 460, 465, 673 A.2d 115 (1996). The plaintiffs failed to comply with the rules of practice by failing to seek an articulation from the trial court on its failure to determine the ownership of the property between August 7 and September 25, 1989, and we will not consider the claim. Practice Book §§ 4051, 4061.

The judgment is affirmed.

In this opinion the other judges concurred.

       Other parties originally named as defendants have been dropped and are not involved in this appeal. Accordingly, as used in this opinion the term defendant refers only to Paul Hudon.

       “[The term trespass quare clausum fregit is] no longer used in the Connecticut Courts and today the term ‘trespass’ is generally understood as referring to trespass to land.” D. Wright, J. FitzGerald & W. Ankerman, Connecticut Law of Torts (3d Ed. 1991) § 4.

       The record does not disclose when, or the circumstances under which, Rosalie Zanoni ceased to be the executrix, resulting in the appointment of an administrator d.b.n.c.La. We note, however, that Zanoni v. Pikor, 36 Conn. App. 143, 144, 648 A.2d 892 (1994), recites that on March 27, 1991, Rosalie was removed as executrix of the estate and Richard Pikor was appointed administrator d.b.n.c.ta.

       A subsequent motion to make Pikor a party defendant was denied by the trial court. No appeal has been taken from that decision.

       General Statutes § 45a-650 (c) provides in relevant part: “If the court finds by clear and convincing evidence that the respondent is incapable of managing his or her affairs then the court shall appoint a conservator of his or her estate. . .

       General Statutes § 45a-655 (a) provides in relevant part: “A conservator of the estate . . . shall, within two months after the date of his or her appointment, make and file in the court of probate, an inventory under oath of the estate of his or her ward. . . . The conservator shall manage all the estate and apply so much of the net income thereof, and, if necessary, any part of the principal of the property, which is required to support the ward . . . .”

       The plaintiffs have also been pro se litigants in Massachusetts.


author: FREEDMAN, J.

text:
    STATE OF CONNECTICUT v. CHARLES COLEMAN
    (13103)
    O’Connell, Spear and Freedman, Js.
    Argued February 15
    officially released July 9, 1996

      Richard Emanuel, assistant public defender, for the appellant (defendant).

      Marjorie Allen Dauster, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and John Waddock, assistant state’s attorney, for the appellee (state).
   FREEDMAN, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of burglary in the first degree in violation of General Statutes § 53a-101 (a) (2), burglary in the second degree in violation of General Statutes § 53a-102 (a), sexual assault in the first degree in violation of General Statutes (Rev. to 1985) § 53a-70 (a), and unlawful restraint in the first degree in violation of General Statutes (Rev. to 1985) § 53a-95 (a). On appeal, the defendant claims that (1) the evidence was insufficient to establish his guilt of the crimes charged, (2) the trial court improperly admitted into evidence certain items that were never connected to the commission of the crimes charged, (3) his rights were violated by the convictions of second degree robbery and unlawful restraint in the first degree, (4) the trial court improperly charged the jury regarding burglary in the first degree and the definition of reasonable doubt, and (5) his rights were violated by the destruction of physical evidence. We conclude that the evidence was sufficient to establish the defendant’s guilt of the crimes charged. We agree, however, with the defendant that the trial court improperly admitted certain items of evidence. Accordingly, we reverse the judgment of the trial court.

The jury reasonably could have found the following facts. On July 7, 1986, the victim lived with her mother on the first floor of a two-family house in New Haven. In the early morning hours of July 7, 1986, the victim was awakened by an assailant, who put his hand over her mouth. The assailant told the victim that if she did not do what he said, her mother would be harmed. Although the victim was verbally threatened, she never saw a weapon and was never threatened with a weapon. The assailant pulled the victim to the edge of the bed and had sexual intercourse with her, which caused her pain. The victim knew that her assailant ejaculated during the intercourse. After he was finished, the assailant threw a blanket over the victim, and told her not to move and to wait at least five minutes. He also asked the victim where her money was and she told him.

The victim lay on the bed and listened for any sounds in the house. She eventually got up, turned on the light in her bedroom, and then turned on every light in the house to make sure no one was there. The victim also checked the doors and windows of the house. She noticed that the doors to the house were still locked, as they had been before she went to bed. The victim also noticed that the window in the living room was wide open, even though the screen had been down and in the locked position when she went to bed. The victim awakened her mother and called the police.

The police arrived, processed the scene for fingerprints, and found seven latent fingerprints on the windowsills of the window of entry and the victim’s bedroom window. Fingerprint number seven, showing the right middle and right ring fingers of the defendant with the fingers pointing inward, was taken from the exterior of the bedroom windowsill, which was not the window of entry. A positive identification of the defendant was made from fingerprint number seven. The defendant was arrested on July 8, 1986, in connection with this incident.

I

A

Sufficiency of Evidence Regarding Identification

The defendant first claims that the evidence was insufficient to prove his identification as the perpetrator of the crimes charged, thereby invalidating all of the convictions. We conclude, however, that the evidence of identification was sufficient to convict the defendant of all crimes charged.

“In reviewing claims of insufficiency, we first examine the evidence presented at trial and construe it in the light most favorable to sustaining the verdict. . . . We then look at the facts established at trial and the reasonable inferences drawn therefrom, and decide whether the jury could reasonably have concluded that the cumulative effect of the evidence established the defendant’s guilt beyond a reasonable doubt.” (Citation omitted.) State v. Oliver, 41 Conn. App. 139, 142, 674 A.2d 1359, cert. denied, 237 Conn. 920, 676 A.2d 1374 (1996). “The question on appeal is not whether we believe that the evidence established guilt beyond a reasonable doubt, but rather whether, after viewing the evidence in the light most favorable to sustaining the judgment, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. . . . We give deference to the unique opportunity of the trier of fact to observe the conduct, demeanor and attitude of the trial witnesses and to assess their credibility.” State v. Miranda, 41 Conn. App. 333, 337-38, 675 A.2d 925 (1996).

According to the defendant, his identification as the perpetrator of the crimes rested solely on fingerprint evidence. The defendant argues that without the fingerprint evidence his convictions would have been impossible and even with it, the convictions must be reversed because the state was unable to prove that the fingerprint impressions were made at the time of the crime. The defendant relies on State v. Payne, 186 Conn. 179, 182, 440 A.2d 280 (1982), and State v. Mayell, 163 Conn. 419, 426, 311 A.2d 60 (1972), in support of his position. Those cases state that “a conviction may not stand on fingerprint evidence alone unless the prints were found under such circumstances that they could only have been impressed at the time the crime was perpetrated.” State v. Iovieno, 14 Conn. App. 710, 719, 543 A.2d 766, cert. denied, 209 Conn. 805, 548 A.2d 440 (1988), quoting State v. Payne, supra, 182.

The defendant argues that, as in State v. Payne, supra, 186 Conn. 183, “[t]he state was unable to present any evidence dating the defendant’s fingerprints or otherwise limiting their impression to the circumstances of the crime.” In fact, in the present case, the state’s own witness regarding the fingerprints testified that there are instances in which latent fingerprints have been recovered from objects years after they had been left. The defendant further argues that the exterior windowsill was generally accessible to the defendant and that he might have touched the windowsill prior to the night in question.

The state argues in response that State v. Payne, supra, 186 Conn. 179, and State v. Mayell, supra, 163 Conn. 419, do not apply to the present case because the identification evidence was not limited to the fingerprint evidence. Specifically, a DNA examination conducted subsequent to the night in question established that the defendant could not be excluded as a potential donor, and that he was within the 15 percent of the black population that could have been the source of the DNA. Furthermore, although the victim acknowledged that she never saw her assailant’s face because it was dark and he was wearing what appeared to be a woman’s stocking over his face, she testified as to the general physical characteristics of the defendant, which in fact match those of the defendant. The state also argues that the windowsill where the fingerprints were found was not in an area accessible to the public because it was “five to six feet off the ground, was five or six feet from the sidewalk and could not be touched by a pedestrian; the yard upon which the window faced was surrounded by a hedge about two and one-half feet tall and there were additional plants between the hedge and the house.”

Construing the evidence in the light most favorable to sustaining the verdict, we agree with the state that the evidence of identification was sufficient to convict the defendant of the crimes charged. The jury could have reasonably concluded, on the basis of all of the evidence, including the DNA evidence and the general description of the defendant, as well as the fingerprint evidence, that the defendant looked in through the victim’s bedroom window, leaving the fingerprint impression, entered the house through the living room window, and thereafter committed the assault on the victim.

B

Sufficiency of Evidence Regarding Unlawful Restraint

Alternatively, the defendant claims that the evidence was insufficient to support the unlawful restraint conviction. Specifically, the defendant argues that pursuant to General Statutes (Rev. to 1985) § 53a-95, the state must prove that he “restrained another person under circumstances which expose the latter to a substantial risk of physical injury.” The defendant claims that there was insufficient evidence of a “substantial risk.” We disagree.

“Where the evidence demonstrates that had the victim struggled and resisted, she might have been seriously injured, the trier of fact could find that the defendant restrained the victim under circumstances that posed a substantial risk of physical injury.” State v. Coleman, 41 Conn. App. 255, 280, 675 A.2d 887 (1996). In the present case, the evidence reveals that the defendant awakened the victim by putting his hand over her mouth, forcibly pulled the victim to the edge of the bed, causing her to fear physical injury, and engaged in sexual intercourse with her. He then threw a blanket over the victim and told her not to move, which also caused her to fear for her physical safety. Our review of the record reveals that the jury had sufficient evidence to conclude reasonably that the defendant exposed the victim to a substantial risk of physical injury.

II

The defendant next argues that the trial court improperly admitted into evidence four knives that were not connected to the crimes. Three of these knives were found in the defendant’s vehicle following his arrest and one of the knives was found on the defendant’s person at the time of his arrest.

Regarding the three knives found in the defendant’s vehicle, the transcript reveals the following. Outside the presence of the jury, the state argued that after the defendant was arrested while seated in his vehicle in the early morning hours of July 8,1986, a search warrant was obtained for the contents of the vehicle, and the vehicle was towed to the police station. Detective James Stephenson, who conducted the search of the vehicle, recovered certain items from the vehicle that the state sought to introduce into evidence. Specifically, the state noted its intention to introduce into evidence a pocket knife, a sheetrock knife and a survival knife. The state noted in its argument that entry to the victim’s apartment had been gained through a screen that had been cut by a sharp instrument. Counsel for the defendant objected on the grounds that the admission of the knives was highly inflammatory and that they were in no way connected to the present case. The trial court overruled the defendant’s objection.

Stephenson testified before the jury that on July 8, 1986, he assisted in conducting the inventory of the items taken from the defendant’s vehicle. Over the defendant’s objection, the three knives, exhibits LI, L2 and L3, were then admitted into evidence. Stephenson explained to the jury where these items were found in the vehicle.* On cross-examination, Stephenson testified that a screwdriver was also taken from the car. He also testified that he did not know how long these knives had been in the vehicle and he did not know if any of the knives were ever processed for fingerprints.

Regarding the knife found on the defendant’s person, the transcript reveals the following. Outside the presence of the jury, the defendant objected to the admission of a knife seized from him at the time of his arrest. Although the state could not say that this was the knife used in the incident, it argued that the knife was relevant because there had been evidence that the screen to the victim’s house had been cut with a sharp instrument, and that this knife was found in the defendant’s possession twenty-two hours after the crime. The trial court overruled the defendant’s objection and admitted the knife into evidence. The state and the defendant then stipulated before the jury that Detective Ray Della Camera was unavailable to testify, but that if he were available, he would testify, inter alia, that (1) he arrested the defendant on July 8, 1986, while the defendant was seated in his vehicle; (2) upon his arrest, the defendant did not attempt to flee; and (3) at the time of the defendant’s arrest, “the defendant was searched and found to be in possession of a hook-bill knife with a curved blade and wooden handle.”

With regard to the admission of these four knives, the defendant argues that we are bound by our previous decision in State v. Coleman, 35 Conn. App. 279, 646 A.2d 213, cert. denied, 231 Conn. 928, 648 A.2d 879 (1994) (Coleman 1994), in which we held that the trial court had improperly permitted testimony regarding the same three knives that had been seized from the defendant’s vehicle in the July 8, 1986 inventory search of the defendant’s vehicle. The state argues in

response that the knives were relevant and that it is within the trial court’s broad discretion to determine the relevancy of evidence. The state also attempts to distinguish Coleman 1994 and finally argues that even if the knives were improperly admitted, the error was harmless. We agree with the defendant.

In Coleman 1994, the victim was awakened on June 23, 1986, “by the touch of a knife on her throat and a hand placed over her mouth. The victim struggled with her assailant and tried to grab the knife from him. During the struggle, the victim sustained several lacerations on her right hand and was struck in the face several times.” State v. Coleman, supra, 35 Conn. App. 281. The victim in Coleman 1994 was eventually able to escape from her assailant. The police obtained a partial latent palm print from the victim’s bathtub that matched the defendant’s palm print.

As in the present case, in Coleman 1994 “the state offered the testimony of Detective James Stephenson of the New Haven police department, a participant in the inventory search of the defendant’s car on July 8, 1986. The defendant objected on the ground that there was no evidence connecting the knives found in his car to the crimes charged against him and that these knives were irrelevant and highly prejudicial. The objection was overruled on the ground that the knives were relevant to show the ‘accused possessed an article with which the particular crime charged may have been accomplished,’ and that ‘the accused had the means to commit the crime.’ ” State v. Coleman, supra, 35 Conn. App. 285. Stephenson then testified about the three knives found in the defendant’s vehicle. Unlike the present case, however, the state chose not to offer the knives into evidence in Coleman 1994.

We concluded in Coleman 1994 that the trial court abused its discretion in admitting Stephenson’s testimony concerning the three knives. In so holding, we stated that “[i]t is error to allow into evidence testimony concerning articles seized from the defendant that tend to indicate criminal propensity when those articles are not connected to the commission of the crime charged. State v. Ferraro, 160 Conn. 42, 45, 273 A.2d 694 (1970); State v. Johnson, 160 Conn. 28, 31, 273 A.2d 702 (1970).” State v. Coleman, supra, 35 Conn. App. 287. Concerning the knives, we stated that “[t]here is nothing in the record to suggest that the knives found in the defendant’s car had any connection to the crimes committed against the victim. Although the victim testified that she was awakened in her apartment by an assailant who was holding a knife against her throat and that during a struggle with him her right hand was slashed by the blade of the knife, the state never connected the fact of the defendant’s possession of three knives with the commission of the crimes for which he stood charged. The knives were discovered in the defendant’s car more than two weeks after the victim was assaulted, the victim never described the knife used by her assailant, and the state never argued that one of the defendant’s knives was used in the assault against the victim.” Id., 285-86.

Although we concluded in Coleman 1994 that the trial court improperly admitted the testimony concerning the three knives, we further held that the error was harmless. In so holding, we relied on the fact that Stephenson’s testimony was limited to a brief description of the knives and the fact that the jury never saw the actual knives as the state chose not to put them into evidence. State v. Coleman, supra, 35 Conn. App. 288-89. We also noted that the only reasonable inference from the state’s evidence in the case, including the latent palm print that was discovered in the victim’s bathtub, was that “the defendant entered [the victim’s] apartment through the window and inadvertently left his palm print in the bathtub during the commission of the crimes charged.” Id., 289. In light of the evidence, we concluded that “we cannot say that the improper testimony briefly describing the three knives more probably than not affected the result.” Id., 289.

In the present case, the connection between the defendant’s possession of the knives and the crimes committed is more attenuated than in Coleman 1994. Unlike Coleman 1994, where the victim was threatened by a knife and sustained lacerations from a knife during with her struggle with the defendant, the victim in the present case never testified that the defendant displayed or threatened her with a knife. Whereas in Coleman 1994, Stephenson’s testimony “was limited to a brief description of the knives”; State v. Coleman, supra, 35 Conn. App. 288; and the jury never saw the actual knives, in the present case, all four knives were admitted into evidence and were commented on by counsel in closing argument.

Furthermore, the evidence against the defendant, as a whole, although strong enough to pass the sufficiency of evidence test; see part I; is not nearly as strong as in Coleman 1994. Although the victim in the present case testified as to the general physical characteristics of the defendant, she acknowledged that she never saw her assailant’s face because it was dark and he was wearing what appeared to be a woman’s stocking over his face. Unlike Coleman 1994, where the defendant’s palm print was found on the bathtub inside the house, here, the defendant’s fingerprint was on the exterior of the victim’s bedroom windowsill, which was not the window of entry. The DNA evidence that was presented showed that the defendant could have been within the 15 percent of the black population that could have been the source of the DNA. None of these factors, standing alone, would have been sufficient to convict the defendant, but, taken together, the evidence was sufficient to convict the defendant of the crimes charged.

Just as it was improper to admit the testimony concerning the knives in Coleman 1994, we conclude that it was improper to admit the knives themselves into evidence in the present case. “[I]t is reversible error for the trial court to allow into evidence articles seized from the defendant which tend to indicate criminal propensity when those articles are not connected to the commission of the crime charged.” State v. Wilson, 199 Conn. 417, 449, 507 A.2d 1367 (1986); see also State v. Mozell, 36 Conn. App. 672, 677, 652 A.2d 1060 (1995). Although in Coleman 1994, the knives were found more than two weeks after the commission of the crime and in the present case the knives were found less than twenty-four hours after the commission of the crime, we conclude that the state has not established that the knives were sufficiently connected to the crimes charged. We further conclude that, unlike in Coleman 1994, the improper admission of the knives in this case is not harmless. In light of the evidence presented in this case, we believe that it is more probable than not that the erroneous action of the trial court in admitting the knives into evidence affected the result of the trial. See State v. Coleman, supra, 35 Conn. App. 288.

The judgment is reversed and the case is remanded for a new trial.

In this opinion the other judges concurred.

       In July, 1986, the state filed a substitute information charging the defendant with burglary in the first degree, sexual assault in the first degree, unlawful restraint in the first degree and robbery in the third degree. The defendant pleaded not guilty to each of these offenses. On May 27, 1987, the defendant changed his plea of not guilty to all counts to guilty to counts one, two and four, pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970). The trial court subsequently denied the defendant’s motion to withdraw his guilty pleas. This decision was affirmed on appeal. State v. Coleman, 17 Conn. App. 307, 552 A.2d 442 (1989).
      The defendant then filed a petition for a writ of habeas corpus with the United States District Court for the District of Connecticut, which ordered the state to permit the defendant to withdraw his guilty pleas. On July 21, 1992, the defendant appeared before the court and changed his plea from guilty to not guilty to all counts of the substitute information, and elected a trial by jury. The state subsequently filed a substitute information charging the defendant with burglary in the first degree, burglary in the second degree, sexual assault in the first degree, unlawful restraint in the first degree and robbery in the third degree.

       General Statutes § 53a-101 (a) provides in relevant part: “A person is guilty of burglary in the first degree when he enters or remains unlawfully in a building with intent to commit a crime therein and ... (2) in the course of committing the offense, he intentionally, knowingly or recklessly inflicts or attempts to inflict bodily injury on anyone.”

       General Statutes § 53a-102 (a) provides: “A person is guilty of burglary in the second degree when he enters or remains unlawfully in a dwelling at night with intent to commit a crime therein.”

       General Statutes (Rev. to 1985) § 53a-70 (a) provides: “A person is guilty of sexual assault in the first degree when such person compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of the use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person.”

       General Statutes (Rev. to 1985) § 53a-95 (a) provides: “A person is guilty of unlawful restraint in the first degree when he restrains another person under circumstances which expose the latter to a substantial risk of physical injury.”

       We address the defendant’s claim regarding sufficiency of the evidence first since the defendant would be entitled to an acquittal if the evidence was, in fact, insufficient. In light of our conclusion that the trial court improperly admitted certain items of evidence, however, we need not address all of the defendant’s remaining claims.

       The victim testified that her assailant took $180 from her bedroom. The defendant was acquitted of the robbery charges.

       This was the only fingerprint from which a positive identification could be made.

       The victim testified that her assailant was between five feet eight and five feet nine inches tall and appeared to be black with a slight to medium build. She also believed him to be in his early to mid-twenties. At one point during the assault, the assailant pulled up the stocking mask to near his nose. The victim was questioned by the police after the incident and indicated that she could not recall whether he had any facial hair, and she testified at trial that she could not recall whether he had any facial hair.

       The trial court noted: “That screen was cut, as I recall the testimony, presumably in order to unlock the storm window, presumably there and to get into the room. It wouldn’t strike me that there is a lot of relevance to it, and the objection should be more to the weight than to the admissibility, and the jury can do with it what they want, and counsel too, of course, is always free to argue the weight of that evidence, and in connection with the offenses.”

       Stephenson testified as follows: “L3 is what I would describe as a blue handle sheetrock type of knife, taken from the glove compartment of the vehicle. LI is what I would describe a survival type of knife, which was taken from the carpet area, next to the driver side of the vehicle inside the carpet itself, and L2 is a pocket style type of knife, which I recall came from the trunk of the vehicle.”

       The trial court stated: “This appears to be the same category as the other three knives that were taken either from the vehicle in which the defendant was operating, and the earlier knife, as a result of the search warrant or arrest warrant, and this knife apparently, according to the transcript, was on the person of the defendant at the time that he was arrested. So, it belongs in the same case.”

       Although Coleman 1994 involved only the knives seized from the defendant’s vehicle, we conclude that it applies to the knife seized from the defendant’s person as well, because the defendant’s objections and the court’s rulings were the same each time. This discussion therefore encompasses both of the trial court’s rulings, regarding the admission of all four knives.

       The prosecuting attorney argued that although he was “not saying that any one of those knives was used necessarily to gain entry into [the victim’s] home, [it] certainly points to the fact that this defendant has the means for committing a burglary, and the means for cutting the screen, and entering into her home. . . . [T]his was almost twenty-four hours after the crime itself had occurred."
      Defense counsel responded during closing argument that there was no photograph showing the cuts in the screen so the jurors were left to speculate that they had been made with a sharp object. Defense counsel further argued that no one had ever seen any of the objects used for any criminal act.
      In rebuttal, the prosecuting attorney again argued that while he could not claim that any of the knives cut the screen, twenty-four hours later the defendant had the means to cut the screen.


author: PER CURIAM.

text:
    ADELAIDE KAGAN v. JON ALANDER, COMMISSIONER OF HUMAN RESOURCES
    (14178)
    O’Connell, Spear and Hennessy, Js.
    Argued February 20
    officially released July 9, 1996

      Joseph P. Secóla, with whom, on the brief, was Vincent P. McCarthy, for the appellant (plaintiff).

      Nyle K. Davey, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Richard J. Lynch, assistant attorney general, for the appellee (defendant).
   PER CURIAM.

The plaintiff, Adelaide Kagan, appeals from the judgment of the trial court upholding the decision of the department of human resources (department) to revoke her family day care home license. The plaintiff claims (1) that the statute, regulations and department procedure that require her to consent to an inspection as a condition of holding her license are unconstitutional on their face and as applied to her and (2) that the trial court improperly upheld the department’s conclusion that she was not in substantial compliance with the regulations. We affirm the judgment of the trial court.

The plaintiff maintained a family day care home. When a department inspector arrived at the home to perform an inspection pursuant to General Statutes (Rev. to 1993) § 17-585 (b), now § 19a-87e, and §§ 17-31q-12, 17-31q-14 and 17-31q-21 of the Regulations of Connecticut State Agencies, the plaintiff refused to consent to entry to the home. After a hearing, the department revoked the license on the basis of the plaintiffs refusal to consent to the inspection. The plaintiff appealed to the trial court, which rendered judgment in favor of the department. The plaintiff appeals to this court from the judgment of the trial court.

We are persuaded by our examination of the record, briefs and arguments of the parties, that the judgment of the trial court should be affirmed. In a thoughtful and comprehensive memorandum of decision, the trial court analyzed the law in a manner consistent with our statutes and case precedents. Kagan v. Alander, 44 Conn. Sup. 223, 680 A.2d 1015 (1994). Because that memorandum addresses the arguments raised in this appeal, we adopt the trial court’s well reasoned decision as a statement of the applicable law on these issues. It would serve no useful purpose for us to repeat the discussion contained therein. See Federal Home Loan Mortgage Corp. v. Bardinelli, 39 Conn. App. 786, 667 A.2d 806 (1995); State v. Mobley, 33 Conn. App. 103, 633 A.2d 726 (1993).

The judgment is affirmed.

       Currently the department of social services.


author: SPALLONE, J.

text:
    TOWN CLOSE ASSOCIATES v. PLANNING AND ZONING COMMISSION OF THE TOWN OF NEW CANAAN
    (14959)
    Landau, Spear and Spallone, Js.
    Argued March 25
    officially released July 9, 1996

      Kenneth R. Slater, Jr., with whom were Louis Ciccarello and, on the brief, Carl R. Ficks, Jr., for the appellant (defendant).

      Timothy S. Hollister, with whom was Aline Gold-back, for the appellee (plaintiff).
   SPALLONE, J.

This appeal arises from the denial by the New Canaan planning and zoning commission (commission) of the plaintiffs application for a special permit and site plan approval to construct a mixed use development project that includes residential units dedicated to affordable housing. The plaintiff appealed from the commission’s decision to the trial court, pursuant to General Statutes § S-SOg.* The trial court rendered judgment reversing the commission’s decision. We affirm the judgment of the trial court.

The following facts are relevant to this appeal. In 1984, the New Canaan Fuel and Lumber Company (New Canaan Fuel) owned a 3.6 acre plot of land in downtown New Canaan. New Canaan Fuel submitted an application to the commission to construct a large office building on the land. The commission denied that application and New Canaan Fuel appealed. That appeal and other attendant litigation was settled by a stipulated judgment in December, 1986. Pursuant to the stipulated judgment, New Canaan Fuel agreed to reduce the size of the office building, to construct commuter parking spaces and to dedicate a 400 foot strip of property to the town of New Canaan to allow future street widening. In return for these concessions, the commission promised to issue all the permits necessary for the construction of the office building. New Canaan Fuel, however, never constructed the office building.

In early 1992, the plaintiff secured an option to purchase the 3.6 acre parcel of land from New Canaan Fuel. The parcel of land was zoned Business A. The commission, in 1985, had amended its Business Zone A regulations to allow, by special permit, the construction of affordable housing developments. On December 15, 1992, the plaintiff filed an application with the commission seeking a special permit and site plan approval to construct a development project including 104 residential units and 14,790 square feet of retail and office space. The plaintiff proposed to designate 20 percent of the residential units as affordable housing as defined in General Statutes § 8-39a, thus qualifying as an affordable housing development under § 8-30g (a).

The commission held three public hearings on the plaintiffs application. On April 27, 1993, the commission denied the application, without prejudice to the filing of redesigned plans, citing seventeen reasons for its denial, including instances of noncompliance with the zoning regulations. On May 14, 1993, in accordance with § 8-30g (d), the plaintiff submitted a modified plan designed to respond to the commission’s reasons for denial. After another public hearing, the commission, on June 21, 1993, again denied the application without prejudice, citing fourteen of the original seventeen reasons. One of the fourteen reasons cited by the commission for its denial was the development’s potential impact on traffic in the area. The commission did not specifically correlate any of the fourteen reasons for its denial to any substantial public interests to be protected by its decision. Thereupon, the plaintiff appealed to the Superior Court pursuant to § 8-30g.

In its brief to the trial court, the commission articulated three substantial public interests to be protected by its decision: (1) the integrity of its affordable housing regulations; (2) the protection of property values against the excessive size and bulk of the structure; and (3) the preservation of existing traffic conditions. The commission’s brief to the trial court did not specify, however, how its fourteen reasons for denial supported its assertion that its decision was necessary to protect these three public interests. The trial court examined whether the three public interests satisfied the four requirements of § 8-30g (c) (1).

In its memorandum of decision, the trial court, as directed by § 8-30g (c) (1), first reviewed the commission’s fourteen reasons for denying the plaintiffs application. The trial court determined that nine of the reasons for denial were not supported by sufficient evidence. One of the reasons not supported by sufficient evidence was the commission’s concern about traffic congestion. Therefore, the trial court did not need to consider traffic congestion as a substantial public interest under the three remaining subdivisions of subsection (c).

The trial court then examined (1) whether the commission’s decision was necessary to protect the two remaining substantial public interests, as directed by § 8-30g (c) (2), and (2) whether those public interests outweigh the need for affordable housing, as directed by § 8-30g (c) (3). In discussing the second public interest cited by the commission, the trial court stated that the commission produced no evidence regarding “the nature or extent of any claimed detrimental effect on neighboring properties.” Thus, the trial court determined under subdivision (2) that the commission’s denial was not necessary to protect local property values. Finally, the trial court, quoting this court in Wisniowski v. Planning Commission, 37 Conn. App. 303, 312, 655 A.2d 1146, cert. denied, 233 Conn. 909, 658 A.2d 981 (1995), rejected the remaining public interest advanced by the commission because “ ‘§ 8-30g does not contemplate a denial of an affordable housing . . . application on the ground that it does not comply with the underlying zoning of an area. ’ ” Applying subdivision (3), the trial court determined that maintaining the integrity of New Canaan’s own affordable housing regulations did not outweigh the need for affordable housing.

On appeal, the commission claims that the trial court (1) improperly concluded that the commission, in order to enforce its zoning regulations, must prove that the public interests advanced by its decision clearly outweigh the need for affordable housing, and (2) improperly refused to review the legal effect of the stipulated judgment between New Canaan Fuel and the commission.

I

The commission first asserts that § 8-30g (c) (3), which requires a commission to prove that the substantial public interests that form the basis for its denial of an affordable housing application outweigh the need for affordable housing, should not be applied where, as here, a specific site has already been zoned for affordable housing. The commission asserts, instead, that subdivision (3) is applicable only where a zoning authority has determined that a specific site is inappropriate for an affordable housing project. Thus, under the commission’s theory, once a specific site has been zoned for affordable housing and a development plan for that site has been denied, a zoning authority, after addressing the inquiries in § 8-30g (c) (1) and (2), can disregard subdivision (3) and attempt to carry the burden imposed on it by subdivision (4). The commission asserts that the proper inquiry under subdivision (4) is “whether reasonable changes to the development plan can be made to conform the plan to the requirements of the regulations.” The commission claims that “[n]o [c]ommission could prove that zoning regulations governing the design of residential housing projects outweigh the community’s need for affordable housing.” As a result, the commission argues, “municipalities are powerless to enforce site development standards with respect to affordable housing development plans.”

In support of its view, the commission attempts to link the decision in Huntington Branch, NAACP v. Huntington, 844 F.2d 926 (2d Cir. 1988), to § 8-30g. In Huntington, the Circuit Court established a test for determining whether a municipality violated Title VIII of the Civil Rights Act of 1968,42 U.S.C. §§ 3601 through 3631. In setting forth that test, the court drew a distinction between site specific and plan specific justifications that a municipality might assert in denying a development plan application where that denial had a discriminatory impact. Huntington, in turn, was cited in the report of the state “Blue Ribbon Commission on Housing,” (Blue Ribbon Report) which originally proposed the affordable housing appeals procedure. The commission reasons, therefore, that implicit in the statute is the distinction established by the Huntington court.

“[T]he construction and interpretation of a statute is a question of law for the courts .... In construing a statute, we seek to ascertain and give effect to the apparent intent of the legislature. ... In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, [and] to the legislative policy it was designed to implement .... Generally, when the language of a statute is plain and unambiguous, we need look no further than the words themselves because we assume that the language expresses the legislature’s intent. ... [In sum], a statute . . . should not be interpreted to thwart its purpose.” (Citations omitted; internal quotation marks omitted.) West Hartford Interfaith Coalition, Inc. v. Town Council, 228 Conn. 498, 507-508, 636 A.2d 1342 (1994).

We conclude that the legislature did not intend to differentiate or distinguish between site specific and plan specific grounds for denial of an affordable housing application. The language of the statute itself is clear and unambiguous. Initially, we note that the statute applies to “any application made to a commission in connection with an affordable housing development . . . .” (Emphasis added.) General Statutes § 8-30g (a) (2). As our Supreme Court noted in a different context, “the statute contains no exceptions or qualifications limiting the definition of an affordable housing application to certain types of applications to zoning commissions. . . . [W]e construe the language of § 8-30g to apply to every type of application filed with a commission in connection with an affordable housing proposal.” West Hartford Interfaith Coalition, Inc. v. Town Council, supra, 228 Conn. 508-509. Because § 8-30g applies to every type of application, it necessarily applies whether an application is submitted to change the zoning of a particular site or is submitted to build an affordable housing development on land previously zoned for affordable housing. See Kaufman v. Zoning Commission, 232 Conn. 122, 137, 653 A.2d 798 (1995) (§ 8~30g applies to both zone change review and site plan review).

More to the point, while the commission concedes that a trial court must apply § 8-30g (c) to the appeal of a zoning commission’s denial of an affordable housing application, it argues that § 8-30g (c) (3) and (4) are essentially mutually exclusive and are to be applied in different contexts. The commission makes this assertion even though subdivisions (3) and (4) are joined by the word “and.” The commission’s interpretation, however, “would render the conjunctive ‘and’ meaningless and would [therefore] . . . ‘set aside the plainly expressed intention of the legislature.’ ” Marsala v. Bridgeport, 15 Conn. App. 323, 326, 544 A.2d 1917, cert. dismissed, 209 Conn. 808, 548 A.2d 437 (1988), quoting State ex rel. McCarthy v. Watson, 132 Conn. 518, 536-37, 45 A.2d 716 (1946). Therefore, the language of § 8-30g requires the commission to prove that the interests to be served by the enforcement of its zoning regulations outweigh the need for affordable housing.

The legislative history of § 8-30g buttresses our conclusion. The commission relies on the Blue Ribbon Report’s citation of Huntington to assert that the legislature intended that § 8-30g contain the dichotomy between site specific and plan specific. We note, however, that the Blue Ribbon Report’s proposed statute does not contain that distinction. Indeed, in its recommendations, the land use subcommittee stated in the Blue Ribbon Report that “the Subcommittee . . . believes that too often the . . . important concern of providing an adequate supply of housing at affordable prices has been ignored in the decisions of some local land use commissions. . . . [I]t appears that many times the local commissions’ decisions elevate vaguely-stated and relatively unimportant concerns over the important need to build affordable housing.” State of Connecticut Blue Ribbon Commission on Housing, Report and Recommendations to the Governor and General Assembly, February 1, 1989, p. A-7. In light of the foregoing language, § 8-30g (c) (3) is designed specifically and deliberately to shift the balance from traditional zoning concerns, including plan specific concerns, in favor of affordable housing. In commenting on the burden this framework imposes upon a commission, the report stated that “[t]he Subcommittee is sensitive to the strongly expressed concern of municipalities that they might lose control over the pace and direction of land development in their communities. Nonetheless . . . the Subcommittee was unable to develop any other proposal that would ensure sufficient consideration is given to the affordable housing needs of those not already adequately housed in the municipality.” Id., p. A-9. Thus, the Blue Ribbon Report emphatically states the necessity of applying all four elements of § 8-30g (c). In addition, the commission fails to cite any remarks by legislators that demonstrate that the legislature intended that the statute incorporate the distinction between site specific and plan specific.

Finally, in reviewing the policy underlying § 8-30g, we note that it is a remedial statute that “ ‘must be liberally construed in favor of those whom the legislature intended to benefit.’ ” Kaufman v. Zoning Commission, supra, 232 Conn. 140. Adopting the commission’s interpretation, however, could impede or frustrate the purpose of the statute by allowing a zoning commission to avoid § 8-30g (c) (3), arguably the highest of the four evidentiary hurdles found in § 8-30g (c). Under the commission’s interpretation, a municipality could amend its zoning regulations ostensibly to permit affordable housing developments, but then, acting under the pretext of its other zoning regulations, effectively preclude the construction of an affordable housing development. Such a result is contrary to the letter, spirit and legislative history of § 8-30g.

The commission contends that our interpretation of § 8-30g (c) forces it to “shoulder the Herculean burden” of proving that the integrity of its zoning regulations outweighs the need for affordable housing. While we disagree that applying all four subdivisions of subsection (c) is so difficult as to constitute a mythological feat, we do note that “[t]he burden of proof established in § 8-30g is a specific, narrow standard that a commission must satisfy on appeal.” Wisniowski v. Planning Commission, supra, 37 Conn. App. 313. “Instead of simply questioning whether the application complies with [traditional zoning] regulations, however, under § 8-30g, the commission [must consider] the rationale behind the regulations to determine whether the regulations are necessary to protect substantial public interests in health, safety, or other matters.” (Emphasis in original.) Id., 317-18. Finally, a commission’s inability to satisfy the four subdivisions of § 8-30g (c) does not mean that its regulations or concerns will be completely disregarded; the statute also provides that the trial court “shall wholly or partly revise, modify, remand or reverse the decision ... in a manner consistent with the evidence before it.”

We conclude that the trial court correctly interpreted § 8-30g (c) to require the commission to prove that the public interests to be advanced by its denial of the plaintiffs affordable housing application outweigh the need for affordable housing.

II

The commission next claims that the trial court improperly refused to consider the legal effect of the stipulated judgment between the prior landowner, New Canaan Fuel, and the commission. Under that stipulated judgment, dated December 24, 1986, the commission agreed to issue all the necessary permits and approvals for New Canaan Fuel to construct a large office building. In return, New Canaan Fuel agreed to dedicate a 400 foot strip of property to the town of New Canaan for future street widening and to construct 130 parking spaces to be made available for commuters. The stipulated judgment also specified that New Canaan Fuel would have twenty-four months from that date to commence construction. That time limit was later extended to 1990. New Canaan Fuel, however, did not construct the building and the commission did not issue any permits. The commission did not attempt to enforce the stipulated judgment with New Canaan Fuel. In 1992, the plaintiff obtained an option to purchase the land from New Canaan Fuel and has since purchased it. New Canaan Fuel, however, still owned the land when the commission issued its decision regarding the affordable housing application. There is no evidence to suggest that any restrictions were placed on the deed from New Canaan Fuel to the plaintiff.

In its denial of the plaintiffs application, four of the commission’s reasons for the denial cited the stipulated judgment between New Canaan Fuel and the commission. These reasons, in the words of the trial court, “reflect the commission’s belief that the [stipulated] judgment was binding on [the plaintiff].” The trial court held that the determination of the legal effect of the stipulated judgment on the parties before it was beyond the trial court’s proper scope of review in the § 8-30g appeal. The trial court did note that if the commission were entitled to apply the stipulated judgment against the plaintiff, the commission’s denial did not state why the reasons citing the stipulated judgment constituted a substantial public interest or how such a public interest could outweigh the need for affordable housing.

The commission claims that, because a trial court hearing an appeal of a zoning commission’s decision can decide questions of law, the trial court properly could have determined that the stipulated judgment was enforceable. Other than parking and traffic considerations, the commission asserts that such a resolution is necessary for it to apply its zoning regulations to the plaintiffs application. Specifically, the commission claims that, without knowing the total size of the plot of land, it cannot calculate the total number of units permitted under its density zoning regulations. Because the plaintiffs site plan application included the land the commission claims was dedicated to the town, the commission asserted in its denial that the plaintiffs development plan is too dense.

We conclude that the trial court correctly determined that it could not properly resolve the rights of the parties in the strip of land that New Canaan Fuel had agreed to dedicate to the town in the stipulated judgment. A stipulated judgment is regarded as a contract between the parties. Griffin v. Planning & Zoning Commission, 30 Conn. App. 643, 650, 621 A.2d 769 (1993), citing Bryan v. Reynolds, 143 Conn. 456, 460, 123 A.2d 192 (1956). “Therefore, the interpretation of a stipulated judgment, like the interpretation of a contract, is usually a question of fact.” Griffin v. Planning & Zoning Commission, supra, 650, citing Gurliacci v. Mayer, 218 Conn. 531, 567, 590 A.2d 914 (1991). The interpretation of a contract is a question of law only where the language is definitive and unambiguous. Levine v. Massey, 232 Conn. 272, 278, 654 A.2d 737 (1995).

We may not, nor could the trial court in its role as a court of appeal, properly determine the intent of New Canaan Fuel and the commission in entering into the stipulated judgment. The stipulated judgment raises several issues to be settled in terms of the rights and duties between the commission, the plaintiff and New Canaan Fuel, including the continued validity of the dedication of the strip of land. We note, however, that even if the commission had previously prevailed in enforcing the stipulated judgment’s provision for the dedicated land and had consequently denied the plaintiffs application for failure to comply with its zoning regulations, in any subsequent appeal of that denial, the commission would have borne the burden imposed on it by § 8-30g as we have interpreted it in part I of this opinion.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 8-30g provides in relevant part: “Affordable housing land use appeals procedure, (a) As used in this section: (1) ‘Affordable housing development’ means a proposed housing development (A) which is assisted housing or (B) in which not less than twenty per cent of the dwelling units will be conveyed by deeds containing covenants or restrictions which shall require that such dwelling units be sold or rented at, or below, prices which will preserve the units as affordable housing, as defined in section 8-39a, for persons and families whose income is less than or equal to eighty per cent of the area median income, for at least twenty years after the initial occupation of the proposed development; (2) ‘affordable housing application’ means any application made to a commission in connection with an affordable housing development by a person who proposes to develop such affordable housing ... (4) ‘commission’ means a zoning commission, planning commission, planning and zoning commission, zoning board of appeals or municipal agency exercising zoning or planning authority; and (5) ‘municipality’ means any town, city or borough, whether consolidated or unconsolidated.
      “(b) Any person whose affordable housing application is denied or is approved with restrictions which have a substantial adverse impact on the viability of the affordable housing development or the degree of affordability of 1 he affordable dwelling units, specified in subparagraph (B) of subdivision (1) of subsection (a) of this section, contained in the affordable housing development, may appeal such decision pursuant to the procedures of this section. Such appeal shall be filed within the time period for filing appeals as set forth in sections 8-8, 8-9, 8-28, 8-30, or 8-30a, as applicable, and shall be made returnable to the superior court for the judicial district of Hartford-New Britain. Affordable housing appeals shall be heard by a judge assigned by the chief court administrator to hear such appeals. To the extent practicable, efforts shall be made to assign such cases to a small number of judges so that a consistent body of expertise can be developed. Appeals taken pursuant to this subsection shall be privileged cases to be heard by the court as soon after the return day as is practicable. . . .
      “(c) Upon an appeal taken under subsection (b) of this section, the burden shall be on the commission to prove, based upon the evidence in the record compiled before such commission that (1) the decision from which such appeal is taken and the reasons cited for such decision Eire supported by sufficient evidence in the record; (2) the decision is necessary to protect substantial public interests in health, safety, or other matters which the commission may legally consider; (3) such public interests clearly outweigh the need for affordable housing; and (4) such public interests cannot be protected by reasonable changes to the affordable housing development. If the commission does not satisfy its burden of proof under this subsection, the court shall wholly or partly revise, modify, remand or reverse the decision from which the appeal was taken in a manner consistent with the evidence in the record before it.
      “(d) Following a decision by a commission to reject an affordable housing application or to approve an application with restrictions which have a substantial adverse impact on the viability of the affordable housing development or the degree of affordability of the affordable dwelling units, the applicant may, within the period for filing an appeal of such decision, submit to the commission a proposed modification of its proposal responding to some or all of the objections or restrictions articulated by the commission, which shall be treated as an amendment to the original proposal. The filing of such a proposed modification shall stay the period for filing an appeal from the decision of the commission on the original application. . . .”

       The plaintiff has since purchased the subject property.

       “[General Statutes] Sec. 8-39a. ‘Affordable housing’ defined. As used in this title, ‘affordable housing’ means housing for which persons and families pay thirty per cent or less of their annual income, where such income is less than or equal to the area median income for the municipality in which such housing is located, as determined by the United States Department of Housing and Urban Development.”

       Public Acts 1995, No. 95-280, § 1, increased the minimum percentage of units required to be conveyed by deeds containing the specified covenants from 20 percent to 25 percent. Section 3 of that act specified that the increase in the minimum would take effect from its passage on July 6, 1995, and would apply “to any affordable housing application pending on such date and for which the commission has not rendered a decision. ” The commission first rendered a decision on the plaintiffs application on April 27, 1993. Therefore, the 20 percent minimum applies to this case.

       See General Statutes § 8-30g (c) (1) in footnote 1.

       General Statutes § 8-30g (c) provides that the burden shall be on the commission to prove that its decision and the reasons cited for such decision are supported by “sufficient evidence.” See also Kaufman v. Zoning Commission, 232 Conn. 122, 151-52, 653 A.2d 798 (1995) (sufficient evidence standard applies to affordable housing appeals of the decisions of commissions acting in either a legislative or an administrative capacity).

       The trial court noted that New Canaan’s own traffic engineer agreed that the impact on traffic would be minimal.

       The trial court did not need to reach the question of whether preserving the integrity of New Canaan’s affordable housing regulations outweighed the need for affordable housing under § 8-30g (c) (3). Under Wisniowski v. Planning Commission, supra, 37 Conn. App. 312, a municipality’s own affordable housing regulations cannot be a substantial public interest in an affordable housing land use appeal. Therefore, the commission could not have proven that its decision was necessary to protect a substantial public interest under § 8-30g (c) (3).
      Thus, the commission has failed to prove under § 8-30g (c) (2) how its denial of the plaintiff’s affordable housing application is necessary to protect any of the three stated substantial public interests. Nevertheless, because the trial court utilized the balancing test of § 8-30g (c) (3) to dispense with the maintenance of the town’s own affordable housing regulations as a substantial public interest, and in the interests of clarity, we will address the commission’s first claim.

       The commission adopts the labels of “site specific” and “plan specific” grounds for denial to apply to § 8-30g (c) (3) and (4) respectively. This distinction was established by the United States District Court for the District of Connecticut in Huntington Branch, NAACP v. Huntington, 844 F.2d 926, 939 (2d Cir. 1988).

       Under § 8-30g (c) (2) a commission is “required to show that, on the basis of the evidence in the record, it reasonably could have concluded that it could not simultaneously grant the zone change and protect the public interest.” Kaufman v. Zoning Commission, 232 Conn. 122, 166, 653 A.2d 798 (1995).

       Actually, under § 8-30g (c) (4), the commission must prove that the substantial public interests to be protected by its denial of an affordable housing application “cannotbe protectedby reasonable changes to the development.”

       The report was officially entitled “State of Connecticut Blue Ribbon Commission on Housing, Report and Recommendations to the Governor and General Assembly, February 1, 1989.”

       We too rely on the Blue Ribbon Report. “[I]t is clear . . . that because the legislature adopted the Affordable Housing Act in response to the [Blue Ribbon] report, it took into consideration all the concerns, findings, and conclusions of the [Blue Ribbon Report’s authors].’’ West Hartford Interfaith Coalition, Inc. v. Town Council, supra, 228 Conn. 531 (Berdon, J., concurring).

       The Blue Ribbon Report’s Affordable Housing Appeals Procedure provided in pertinent part: “The Affordable Housing Appeals Judge shall reverse the decision of the local commission or eliminate some or all of the conditions imposed, unless the evidence in the record establishes that the reasons given by the commission for its adverse decision were (1) bona fide and legitimate; (2) that they directly and substantially protect public health and safety concerns that are significantly more important than the need for affordable housing in the community that would be satisfied by the proposal; and (3) that deficiencies cited by the commission cannot be corrected by reasonable changes in the proposal. . . .”

       See footnote 14.

       In its brief, the plaintiff asserts that, during public hearings, it had voluntarily offered to convey the 400 foot strip of land to the town.

       Whether the town of New Canaan accepted the dedicated land is itself a question of fact. “A valid acceptance [of an offer to dedicate land] may be either express or implied. ... A variety of actions by a municipality have been held sufficient to furnish a factual basis for a finding of implied acceptance. . . . [T]o be effectual an acceptance must occur within a reasonable period of time after the intent to dedicate the land has been manifested. . . . The mere lapse of time, in itself, is not determinative.” (Citations omitted; internal quotation marks omitted.) Katz v. West Hartford, 191 Conn. 594, 596-98, 469 A.2d 410 (1983).