author: Norcott, J. Heiman, J.,

text:
    David E. Koskoff v. Planning and Zoning Commission of the Town of Haddam et al.
    (10594)
    Norcott, Lavery and Heiman, Js.

      Argued January 7
    decision released April 28, 1992

      David E. Koskoff, pro se, the appellant (plaintiff).

      Thomas P. Byrne, for the appellees (defendants).
   Norcott, J.

The plaintiff landowner appeals from the trial court’s denial of his request for an order of mandamus to compel the defendants, the Haddam planning and zoning commission and its chairman, to approve a subdivision. He claims that the trial court failed to find that the commission’s failure to act within the sixty-five day period allowed by General Statutes § 8-26d (b) results in automatic approval of his subdivision application. We reverse the judgment of the trial court.

The following undisputed facts are pertinent. On August 14, 1989, the plaintiff applied to the commission for approval of an eight lot subdivision. On October 9, 1989, the plaintiff agreed in writing to extend to December 4, the time within which a public hearing on his application could be conducted. Notice of the public hearing was then published in a newspaper on November 24, 1989, and again on December 1, 1989. The public hearing commenced on December 4, and was continued to December 18. On February 21,1990, the commission voted to deny the application. Notice of that decision was then timely published in a newspaper on March 7, 1990.

On March, 19, 1990, the plaintiff appealed the decision to the trial court. On August 27, 1990, the plaintiff commenced a separate action in the trial court for an order of mandamus to compel the chairman of the commission to approve the subdivision map. On August 15,1991, the trial court sustained the plaintiffs appeal, holding that the failure to publish notice of the hearing in the proper manner invalidated the commission’s decision. In the mandamus action, the trial court denied the plaintiff’s request to compel approval. This appeal followed.

The plaintiff claims that the trial court improperly determined that the commission’s denial of the application did not constitute nonaction within the meaning of General Statutes § 8-26 because, the plaintiff asserts, the commission lacked authority to act as a result of its failure to publish timely notice of the December 4, 1989 hearing. Therefore, the plaintiff claims, the subdivision application was subject to automatic approval pursuant to the requirements of General Statutes §§ 8-26 and 8-26d (b).

We note at the outset that the parties agree that notice was defective under General Statutes § 8-26 because it was not published eleven days prior to the hearing. We nevertheless must address this issue because publication of notice implicates the subject matter jurisdiction of the defendant, which directly bears on the result we reach in this case.

“Subject matter jurisdiction is the power of the court to hear and determine cases of the general class to which the proceedings in question belong. . . . The same principle applies to administrative agencies . . . including zoning authorities.” (Citations omitted; internal quotation marks omitted.) Lauer v. Zoning Commission, 220 Conn. 455, 460, 600 A.2d 310 (1991), quoting Caserta v. Zoning Board of Appeals, 219 Conn. 352, 358, 593 A.2d 118 (1991).

Whether failure to give notice affects subject matter jurisdiction depends on who is to be notified. When the notice contemplated is personal, failure to issue such notice does not affect subject matter jurisdiction. Lauer v. Zoning Commission, supra, 462; see Sachem’s Head Assn. v. Lufkin, 168 Conn. 365, 362 A.2d 519 (1975). When the notice required, however, is constructive notice to the general public by means of legal advertisement, failure to issue such notice properly is a defect implicating subject matter jurisdiction. Lauer v. Zon ing Commission, supra, 461; see, e.g., Jarvis Acres, Inc. v. Zoning Commission, 163 Conn. 41, 44, 301 A.2d 244 (1972) (failure to publish notice in newspaper pursuant to General Statutes § 8-3 constitutes jurisdictional detect); Hartford Electric Light Co. v. Water Resources Commission, 162 Conn. 89, 109, 291 A.2d 721 (1971) (insufficient published notice to general public constitutes due process violation and, therefore, is jurisdictional defect); Slagle v. Zoning Board of Appeals, 144 Conn. 690, 137 A.2d 542 (1957) (publication of notice in newspaper of hearing constitutes jurisdictional defect when published only three days before hearing); Wins-low v. Zoning Board, 143 Conn. 381, 122 A.2d 789 (1956) (inadequate public notice constitutes jurisdictional defect); Smith v. F. W. Woolworth Co., 142 Conn. 88, 94, 111 A.2d 552 (1955) (inadequate publication of notice of public hearing in newspaper is jurisdictional defect); Hutchison v. Board of Zoning Appeals, 138 Conn. 247, 251, 83 A.2d 201 (1951) (failure to give proper notice constitutes jurisdictional defect).

Strict compliance with statutory mandates regarding notice to the public is necessary because “[i]n the absence of newspaper publication, unknown individuals with an interest in zoning matters would have no way of learning what zoning decisions were being contemplated.” Lauer v. Zoning Commission, supra, 462; Schwartz v. Hamden, 168 Conn. 8, 15, 357 A.2d 488 (1975). Even if the complaining party appears at the public hearing, “[failure to provide such notice deprives the administrative tribunal of subject matter jurisdiction . . . since the legislative intent to notify the public constructively would otherwise be frustrated.” (Internal quotation marks omitted.) Lauer v. Zoning Commission, supra, quoting Schwartz v. Hamden, supra.

Here, the notice contemplated by General Statutes § 8-26 implicates subject matter jurisdiction because it aims to give constructive notice to the general public about possible zoning actions. The statute requires publication of such notice “not more than fifteen days, nor less than ten days” before the hearing commences. Our Supreme Court has interpreted the phrase, “nor less than ten days,” to mean that notice must be published eleven days prior to the hearing. Lunt v. Zoning Board of Appeals, 150 Conn. 532, 536, 191 A.2d 553 (1963); Treat v. Town Plan & Zoning Commission, 145 Conn. 136, 139, 139 A.2d 601 (1958). Because General Statutes § 8-26 was not strictly complied with when notice was published only ten days prior to the December 4, 1989 hearing, the commission lacked jurisdiction, thereby rendering the hearing invalid. See Lauer v. Zoning Commission, supra, 464; Jarvis Acres, Inc. v. Zoning Commission, supra, 44.

We must decide next what consequences attach when a municipal zoning entity conducts a hearing subsequently found to be invalid because of failure to comply with statutory requirements for prehearing notice.

Since colonial days, local government has been conducted in town meetings where the will of the people is given expression. It has been well settled since the early nineteenth century that any action taken in a town meeting is without legal effect when statutory provisions as to notice prior to the meeting are not complied with. Hayden v. Noyes, 5 Conn. 391, 396 (1824); see also Pinney v. Brown, 60 Conn. 164, 168-69, 22 A. 430 (1891), and cases cited therein. This same longstanding principle has been repeatedly applied in the context of actions taken by administrative tribunals, such as zoning bodies. See Brazo v. Real Estate Commission, 177 Conn. 515, 518, 418 A.2d 883 (1979); Mauriello v. Board of Education, 176 Conn. 466, 471, 408 A.2d 247 (1979); Jarvis Acres, Inc. v. Zoning Commission, supra, 44-45; Hartford Electric Light Co. v. Water Resources Commission, supra, 109; Aurora v. Zoning Board of Appeals, 153 Conn. 623, 625-26, 220 A.2d 277 (1966); Edward Balf Co. v. East Granby, 152 Conn. 319, 325, 207 A.2d 58 (1965); Treat v. Town Plan & Zoning Commission, supra, 139; Winslow v. Zoning Board, supra, 388; Smith v. F. W. Woolworth Co., supra, 94; Couch v. Zoning Commission, 141 Conn. 349, 356, 106 A.2d 173 (1954); Hutchison v. Board of Zoning Appeals, supra, 251; Hartford Trust Co. v. West Hartford, 84 Conn. 646, 650, 81 A. 244 (1911); Bom-bero v. Planning & Zoning Commission, 17 Conn. App. 150, 154, 550 A.2d 1098 (1988); Edelson v. Zoning Commission, 2 Conn. App. 595, 599, 481 A.2d 421 (1984).

For more than a century, our Supreme Court has recognized that when action by a municipal entity is subsequently found to be invalid, it is as if that entity never met or voted. In Brooklyn Trust Co. v. Hebron, 51 Conn. 22 (1883), our Supreme Court held that no town meeting occurred nor was any vote taken because notice issued prior to the meeting failed to comply with the mandate of the applicable statute. Id., 29. The court held that because notice was insufficient, “[tjhere was therefore no lawful meeting . . . and of course no vote. . . . [TJhere is absolutely nothing to consider.” Id. In other words, the meeting was void ab initio— “[fjrom the beginning” or “from the first act.” Black’s Law Dictionary (5th Ed.).

The same reasoning applies with equal force in the matter at hand. Because notice of the December 4, 1989 hearing failed to comply with the mandate of General Statutes § 8-26, no hearing occurred and no vote was taken. Nevertheless, General Statutes § 8-26d (b) provides that when no hearing is conducted, the commission must act within sixty-five days after receipt of the application. Section § 8-26d (c) defines receipt as “the day of the next regularly scheduled meeting of such commission . . . immediately following the day of submission to such . . . commission . . . or thirty-five days after submission, whichever is sooner.” Winchester Woods Associates v. Planning & Zoning Commission, 219 Conn. 303, 312, 592 A.2d 953 (1991). The plaintiff submitted his application on August 14,1989. Nothing in the record, however, indicates when the commission’s next regularly scheduled meeting was to be conducted. Yet, regardless of whether the date of receipt was August 14, September 18, which was thirty-five days later, or December 4, 1989, the commission did not act until February 21,1990, well beyond the sixty-five day limit prescribed in § 8-26d (b). See Viking Construction Co. v. Planning Commission, 181 Conn. 243, 247-48, 435 A.2d 29 (1980). We therefore conclude that the plaintiff’s application was automatically approved under § 8-26 as a result of the commission’s nonaction.

Although the commission relies on Farr v. Eisen, 171 Conn. 512, 370 A.2d 1024 (1976), for the proposition that failure to publish proper notice is not the legal equivalent of approval by nonaction within the meaning of General Statutes § 8-26, such reliance is misplaced for two reasons. First, Farr declared that “it is the failure of the commission to render a decision within sixty-five days of the public hearing, rather than an absence of publication, which triggers ‘the non-action approval provisions’ of the statute.” Id., 515-16; see also Merlo v. Planning & Zoning Commission, 196 Conn. 676, 683, 495 A.2d 268 (1985) (“[i]t is the ‘failure of the commission to act’ upon an application within the time provided that results in approval by operation of law under § 8-26”). Second, Farr is inapposite because it involved failure to publish postdecision notice, whereas this case concerns defective prehearing notice.

Although the commission intimates that this is a distinction without a difference, such is not the case. Because prehearing notice was proper in Farr, the commission’s decision had legal effect and constituted “action.” Farr v. Eisen, supra, 516. It did not become mill and void until the commission failed to publish postdecision notice. Id., 515. In this case, however, the commission never “acted” in the first place because its failure to publish prehearing notice in compliance with General Statutes § 8-26 rendered its subsequent doings void ab initio. As the Farr court stated, “There is a marked difference between ‘non-action’ and an action which is ultimately declared ‘null and void.’ Nothing can be declared void if it was not first in existence.” Id., 516. In Farr, valid “action” existed that subsequently was declared null and void. By contrast, in the matter before us today there was nonaction from the outset as a result of the defective prehearing notice.

The centerpiece of the dissent’s dissatisfaction with the result we reach is that the word “hearing” in General Statutes §§ 8-26 and 8-26d is ambiguous with respect to whether it presupposes that a zoning commission has subject matter jurisdiction, and that the legislature intended it to be used in a “lay sense” that connotes a proceeding in which there is “ ‘an opportunity to be heard, to present one’s side of a case or to be generally known or appreciated.’ ” Such an interpretation, the dissent claims, furthers the legislature’s purpose regarding the automatic approval provision of § 8-26 by deterring zoning commissions from delaying action on subdivision applications. Yet, the dissent simultaneously dismisses the prehearing notice mandate of § 8-26, arguing that defective notice cannot change the fact that a hearing was held.

First, the dissent offers no legal authority or legislative history for its claim that the legislature intended the term “hearing” to be interpreted in a “lay sense.” In fact, such an interpretation directly contradicts our Supreme Court’s repeated and unequivocal pronouncements as to what it means, in various contexts, to have a hearing. “A ‘hearing’ is generally defined as a ‘[proceeding of relative formality . . . generally public, with definite issues of fact and of law to be tried, in which . . . parties proceeded against have [a] right to be heard . . . .’(Emphasis added.) Black’s Law Dictionary (5th Ed.).” Herman v. Division of Special Revenue, 193 Conn. 379, 382-83, 477 A.2d 119 (1984); Rybinski v. State Employees’ Retirement Commission, 173 Conn. 462, 469, 378 A.2d 547 (1977); Leabo v. Leninski, 9 Conn. App. 299, 302, 518 A.2d 667 (1986), cert. denied, 202 Conn. 806, 520 A.2d 1286 (1987).

“A hearing can be a proceeding in the nature of a trial with the presentation of evidence, it can be merely for the purpose of presenting arguments, or, of course, it can be a combination of the two. . . . Not only does a hearing normally connote an adversarial setting, but usually it can be said that it is ‘any oral proceeding before a tribunal.’ ” (Citations omitted; emphasis added.) Rybinski v. State Employees’ Retirement Commission, supra, 469-70. Our Supreme Court has “consistently recognize[d] the generally adversarial nature of a proceeding considered a ‘hearing,’ in which witnesses are heard and testimony is taken. See, e.g., Lawrence v. Kozlowski, 171 Conn. 705, 708, 372 A.2d 110 (testimony and exhibits presented at departmental hearing); State v. White, 169 Conn. 223, 229, 363 A.2d 143 (preliminary hearing for revocation of probation, defendant’s personal appearance, testimony of witnesses); Armstrong v. Zoning Board of Appeals, 158 Conn. 158, 163, 257 A.2d 799 (public hearing, zoning commission heard evidence and arguments); Kleinsmith v. Planning & Zoning Commission, 157 Conn. 303, 311, 254 A. 2d 486 (hearing to permit interested persons ‘to express their views’).” Rybinski v. State Employees’ Retirement Commission, supra, 470.

Nowhere, however, has our Supreme Court held that a “hearing” in which the rights of the parties are bound is a hearing in the “lay sense” argued for by the dissent. When a zoning commission hears witnesses and arguments for and against a subdivision, then makes a decision that binds the parties, as it did in this case, such a “hearing” is much more than a mere “ ‘opportunity to be heard,’ ” as the dissent claims. It is a formal proceeding in which definite issues of fact and law are decided; Herman v. Division of Special Revenue, supra; requiring that the zoning commission conducting the hearing first have jurisdiction over the subject matter. Lauer v. Zoning Commission, supra, 460.

Second, the dissent’s interpretation of the term “hearing” does not further the legislature’s purpose in deterring administrative foot dragging because it reads out of the statutes any and all meaning and force contained in the prehearing notice requirement. In the dissent’s view, no consequences attach when defective notice is the result of a “simple mistake” not made “intentionally or in bad faith.” We disagree for at least three important reasons. First, as stated previously, our Supreme Court has mandated strict compliance with statutes that require prehearing notice to the public. See id., 462. Second, such compliance directly implicates a commission’s subject matter jurisdiction and thus impacts on whether there can be a legally cognizable hearing. Id., 464; Jarvis Acres, Inc. v. Zoning Commission, supra, 44. Finally, the dissent’s view implies that our courts in the future will be free to impose a bad faith requirement before activating the statute’s prehearing notice and automatic approval provisions. It is not the province of a court, however, to read into statutes obligations not intended by the legislature. State v. Guckian, 27 Conn. App. 225, 243, 605 A.2d 874 (1992) (en banc). If the legislature had intended to impose a bad faith requirement, “it certainly was aware of the explicit language with which it could do so . . . and it could have explicitly so provided.” (Citations omitted; internal quotation marks omitted.) Id. In this case, the legislature clearly did not impose any bad faith requirement.

Moreover, by dismissing the effect of the prehear-ing notice mandate, the dissent ignores well settled principles of statutory construction. It is hornbook law that no word or phrase in a statute is to be rendered mere surplusage. Jutkowitz v. Department of Health Services, 220 Conn. 86, 104, 596 A.2d 374 (1991). A statute is to be construed as a whole in an effort to reconcile all of its parts. United Illuminating Co. v. Groppo, 220 Conn. 749, 751, 601 A.2d 1005 (1991). We disagree with the claim that there are no consequences when defective prehearing notice is the result of a “simple mistake.”

Finally, although the dissent is dissatisfied with the result we reach because our zoning statutes appear to work against those whom they are intended to protect, it is not for this court to undo by judicial fiat what our zoning statutes require. It is properly within the power and will of the legislature to amend the statutes to accomplish the ends described by the dissent.

The judgment is reversed and this case is remanded with direction to render judgment granting a writ of mandamus to compel the defendants to approve the plaintiff’s subdivision application.

In this opinion Lavery, J., concurred.

Heiman, J.,

dissenting. I respectfully dissent. Because I believe that a hearing was held for the limited purpose of determining which of the time limits set forth in General Statutes § 8-26d applies, I would affirm the trial court’s judgment.

The narrow question presented by this appeal is whether the commission held a hearing for the purpose of determining which of the time limits for commission action, set forth in General Statutes § 8-26d, controls this case. The plaintiff claims that the trial court improperly found that a hearing was held, and, on the basis of this finding, improperly applied the time limit for commission action set forth in § 8-26d (a). He claims that because no hearing was held, the time limit set forth in § 8-26d (b) applies. The plaintiff concedes that if the commission held a hearing, the time limit set forth in § 8-26d (a) controls this case and the commission acted in a timely manner. He further concedes that, conversely, if no hearing was held, the controlling time period was the shorter period set forth in § 8-26d (b) and the commission’s action was late. Thus, the issue as to whether the commission’s February 21,1990 vote to deny the plaintiff’s application constituted “action” for the purpose of the automatic approval statute is not before us. The only issue presented is whether a hearing was held.

Although the majority correctly states that the defect in newspaper notice deprived the commission of subject matter jurisdiction, it incorrectly concludes that the absence of subject matter jurisdiction requires a conclusion that no hearing was held. See Lauer v. Zoning Commission, 220 Conn. 455, 460, 600 A.2d 310 (1991). In each of the cases cited by the majority in which newspaper notice was defective, the lack of subject matter jurisdiction rendered the particular agency’s substantive decision void. Id.; Jarvis Acres, Inc. v. Zoning Commission, 163 Conn. 41, 44, 301 A.2d 244 (1972); Hartford Electric Light Co. v. Water Resources Commission, 162 Conn. 89, 109, 291 A.2d 721 (1972); Slagle v. Zoning Board of Appeals, 144 Conn. 690, 137 A.2d 542 (1957); Smith v. F. W. Woolworth, 142 Conn. 88, 94, 111 A.2d 552 (1955); Hutchinson v. Board of Zoning Appeals, 138 Conn. 247, 251, 83 A.2d 201 (1951). I agree with the majority’s statement that, where a commission lacks jurisdiction over the subject matter, it cannot bind the rights of the parties by its vote. In this case, however, the majority expands the doctrine of subject matter jurisdiction not only to void the commission’s decision to deny the plaintiff’s application, but to support its conclusion that the commission held no hearing on the plaintiff’s application for the purpose of § 8-26d. I believe, as a matter of statutory construction, that because the fact that a hearing was held is in itself legally relevant, separate from the outcome of that hearing, a defect in notice does not change the fact that a hearing was held for the purpose of determining which time limit for commission action applies. See General Statutes §§ 8-26 and 8-26d.

The principal canon of statutory construction is that where the statutory language is clear and unambiguous, we interpret the statute to mean what it says. Winchester Woods Associates v. Planning & Zoning Commission, 219 Conn. 303, 310, 592 A.2d 953 (1991). Under such circumstances, we will look no further for interpretive guidance. Caltabiano v. Planning & Zoning Commission, 211 Conn. 662, 666, 560 A.2d 975 (1989). Section 8-26 states in pertinent part: “The commission may hold a public hearing regarding any subdivision proposal if, in its judgment, the specific circumstances require such action. No plan of resubdivision shall be acted upon by the commission without a public hearing. . . . The commission shall approve, modify and approve, or disapprove any subdivision or resubdivision application . . . within the period of time permitted under section 8-26d. . . .The failure of the commission to act thereon shall be considered as an approval, and a certificate to that effect shall be issued by the commission on demand. ...” Section 8-26d (a) sets forth the time limit within which the commission must take action in the event that “a hearing is held on such application.” Section 8-26d (b) sets forth a separate time limit where “no hearing is held . . . .” The statutes are silent, and therefore ambiguous, regarding whether the “hearing” referred to in § 8-26d presupposes that the commission has subject matter jurisdiction to hold the hearing, or whether the word “hearing” is used simply in its lay sense of an adversarial proceeding, usually public, in which the parties are afforded an opportunity to be heard; see Herman v. Division of Special Revenue, 193 Conn. 379, 382-83, 477 A.2d 119 (1984); Rybinski v. State Employees’ Retirement Commission, 173 Conn. 462, 469-70, 378 A.2d 547 (1977); Leabo v. Leninski, 9 Conn. App. 299, 302, 518 A.2d 667 (1986), cert. denied, 202 Conn. 806, 520 A.2d 1286 (1987); Black’s Law Dictionary (5th Ed.); or an “opportunity to be heard, to present one’s side of a case, or to be generally known or appreciated.” Webster, Ninth New Collegiate Dictionary.

Because the statute is ambiguous regarding this issue, we look to its purpose as evidenced by the legislature’s intent in enacting it, and strive to interpret the statute in a manner consistent with its purpose. General Accident Ins. Co. v. Wheeler, 221 Conn. 206, 210, 603 A.2d 385 (1992). Although there is no reported legislative history regarding the automatic approval provision of General Statutes § 8-26, the purpose of the provision is obvious: to deter zoning commissions from unduly delaying their consideration and resolution of applications for subdivision approval. Section 8-26d simply grants a commission more time to take action in the event that it chooses to hold a hearing on an application.

In my opinion, the result reached by the majority does not advance this statutory purpose because it applies the automatic approval sanction even where the commission has attempted to act expeditiously. Here, the commission published prehearing notice. Although the notice was defective because it was published one day late, there is no evidence that the commission acted intentionally or in bad faith. Rather, the early publication appears to be a simple mistake. Further, the commission, acting on the assumption that the time limits governing applications on which a hearing is held applied, complied with all of the remaining provisions of General Statutes §§ 8-26 and 8-26d. The statutes’ deterrent purpose would not be served by disrupting the parties’ expectations and applying the shorter time limit contained in § 8-26d (b), the practical effect of which is to trigger the automatic approval sanction.

The result reached by the majority defies the purpose of newspaper notice as well. As the majority acknowledges, the purpose of newspaper notice is to give constructive notice to the general public so that unknown individuals with an interest in zoning matters may learn what actions the commission is contemplating and may be heard on such matters. See Lauer v. Zoning Commission, supra, 462. The majority’s anomalous result penalizes the general public by depriving them of their right to be heard on the application because of a defect in meeting a notice requirement designed to safeguard the rights of which they are now being deprived.

Because the majority’s excessively technical analysis creates a result that is at loggerheads with the purposes of both the automatic approval and notice provisions of §§ 8-26 and 8-26d, I conclude that the legislature intended the word “hearing” to be interpreted in its lay sense for the purpose of determining which time limit applies. First, a lay interpretation of the term adequately furthers the legislative purpose in deterring commission inaction. Under this interpretation, serious consequences attach whenever prehearing notice requirements have not been complied with strictly because under such circumstances a commission is utterly powerless to bind the parties’ rights by its vote. Second, this interpretation avoids the anomaly of penalizing the general public due to a defect in newspaper notice intended to protect their interests. Third, a lay interpretation is most consistent with our Supreme Court’s decision in Winchester Woods Associates v. Planning & Zoning Commission, supra. Winchester Woods Associates presented the question of whether a zoning commission’s vote to deny a resubdivision application constituted “action” for the purposes of the automatic approval provisions of §§ 8-26 and 8-26d, even though the decision constituted an abuse of discretion because it was based on an incomplete examination of the relevant factors. Id., 312-13. Our Supreme Court held that although the commission’s decision constituted an abuse of discretion, it nonetheless was “action” for purposes of the automatic approval statutes. Id., 313-14. Thus, even where a decision of the commission is of no legal effect, the fact that the commission took “action” in the lay sense of rendering a decision on the application is sufficient to avoid the automatic approval sanction. Similarly, although the commission is legally unable to bind the parties’ rights in a hearing in which it lacks subject matter jurisdiction, the proceeding may still constitute a hearing that is sufficient to avoid the automatic approval sanction.

Finally, the majority’s attempts to distinguish Farr v. Eisen, 171 Conn. 512, 370 A.2d 1024 (1976), are unpersuasive. The majority first notes that “Farr declared that ‘it is the failure of the commission to render a decision within sixty-five days of the public hearing, rather than an absence of publication, which triggers “the non-action approval provisions” of the statute.’ ” This statement merely begs the central question here: Was a hearing held so that the time limitation for commission action set forth in General Statutes § 8-26d (a) controls?

The majority next attempts to distinguish Farr by pointing out that Farr involved a failure to publish postdecision notice, while this case involves a defect in prehearing notice. In Farr, our Supreme Court held that the postdecision notice provision is mandatory and that the failure of postdecision notice renders the decision as to which notice should have been given “null and void.” Farr v. Eisen, supra, 515. The Farr court further held, however, that the failure of postdecision notice does not vitiate the commission’s action for the purpose of avoiding the sanction of automatic approval. Id., 516. In reaching the latter conclusion, the court stated “[tjhere is a marked difference between ‘non-action’ and an action which is ultimately declared ‘null and void.’ ” Id. The majority seizes on this distinction to support its conclusion that, unlike the commission’s action in Farr, the commission’s action in this case was in essence “nonaction” because the commission lacked subject matter jurisdiction.

I agree that Farr does not control our resolution of this case, not on the grounds advanced by the majority, but on the ground that Farr addressed only the issue of whether the commission took action. As I stated earlier, this issue is not on our table today. To the extent that Farr is analogous, however, the majority’s own analysis of newspaper notice and its relationship to subject matter jurisdiction belies their conclusion that Farr is distinguishable on jurisdictional grounds. As the majority points out, the issue of whether notice is jurisdictional depends not on whether the notice must be given before or after its corresponding proceeding, but on who is to be notified. When the notice is constructive notice to the general public by newspaper publication, proper notice is a prerequisite to subject matter jurisdiction. The notice in Farr, like the notice in this case, was newspaper notice to the general public. General Statutes § 8-26. Just as the defect in newspaper notice in Farr did not, for the purposes of automatic approval, affect the fact that the commission had taken action, the defect in newspaper notice in this case does not affect the fact that a hearing was held.

I conclude that despite the defect in the prehearing newspaper notice, a hearing was held, and, therefore, that the time limit for commission action set forth in General Statutes § 8-26d (a) controls this case. Because this is the only issue presented by the parties, I would affirm the trial court’s judgment.

       General Statutes § 8-26d (b) provides: “A decision on an application for subdivision approval, on which no hearing is held, shall be rendered within sixty-five days after receipt of such application. The applicant may consent to one or more extensions of such period, provided the total period of any such extension or extensions shall not exceed sixty-five days.”

       General Statutes § 8-26 provides in pertinent part: “No plan of resubdivision shall be acted upon by the commission without a public hearing. Notice of the public hearing shall be given by publication in a newspaper of general circulation in the municipality at least twice at intervals of not less than two days, the first not more than fifteen days, nor less than ten days, and the last not less than two days prior to the date of such hearing .... The commission shall approve, modify and approve, or disapprove any subdivision or resubdivision application or maps and plans submitted therewith . . . within the period of time permitted under section 8-26d. Notice of the decision of the commission shall be published in a newspaper having a substantial circulation in the municipality.... Such notice shall be a simple statement that such application was approved, modified and approved or disapproved, together with the date of such action. The failure of the commission to act thereon shall be considered as an approval, and a certificate to that effect shall be issued by the commission on demand. . .


source: Caselaw Access Project

author: Heiman, J.

license: Public Domain

text:
    State of Connecticut v. Bernard C. E. Gaumond, Jr.
    (10365)
    Dupont, C. J., Norcott and Heiman, Js.
    Argued April 1
    decision released April 28, 1992

      Richard B. Grabow, for the appellant (defendant).

      Rita M. Shair, assistant state’s attorney, with whom, on the brief, were Mark S. Solak, state’s attorney, Mark Stabile, deputy assistant state’s attorney, and Russell Case, law student intern, for the appellee (state).
   Heiman, J.

The defendant appeals after a plea of nolo contendere to and subsequent finding of guilty of the charge of operating a motor vehicle while under the influence of liquor or drug, in violation of General Statutes § 14-227a (a). He claims that the trial court improperly denied his motion to suppress the results of two breath tests administered subsequent to his arrest. The defendant reserved his right to appeal pursuant to General Statutes § 54-94a.

The defendant claims that the trial court improperly denied his motion to suppress the test results because his arrest was not supported by probable cause. The central theme of his argument is that the arresting police officer relied on a horizontal gaze nystagmus test to determine that probable cause existed to believe that he was operating a motor vehicle while under the influence of liquor. The defendant posits that because the gaze nystagmus test was unreliable, the arrest was not supported by probable cause. See State v. Martin, 2 Conn. App. 605, 613, 482 A.2d 70 (1984), cert. denied, 195 Conn. 802, 488 A.2d 457, cert. denied, 472 U.S. 1009, 105 S. Ct. 2706, 86 L. Ed. 2d 721 (1985).

The trial court, after a hearing on the motion to suppress, found that the arresting officer had observed the defendant drive 150 yards in the oncoming lane of traffic before returning to the proper lane, then drive straight through a lane marked both on the pavement and by a sign as left turn only. The trial court further found that, after the arresting officer stopped the defendant, the officer smelled alcohol on the defendant’s breath and that the defendant admitted that he had had a few drinks. The trial court found that these facts were sufficient, without regard to the results of the gaze nystagmus test, to support the officer’s conclusion that probable cause to arrest the defendant for operating a motor vehicle while under the influence of liquor existed. We agree with the trial court.

Our review of the transcript of the proceedings on the motion to suppress leads us to conclude that the trial court’s factual findings are not clearly erroneous. See International Assn, of Firefighters, Local 786 v. Serrani, 26 Conn. App. 610, 615, 602 A.2d 1067 (1992). Further, its conclusion that probable cause existed to arrest the defendant before the administration of the gaze nystagmus test is legally and logically consistent with the facts found. See State v. Whitfield, 26 Conn. App. 103, 109-10, 599 A.2d 21 (1991). Thus, the reliability of the gaze nystagmus test is, under the facts of this case, immaterial.

In light of our resolution of this issue, we need not address the other issues raised in this appeal.

The judgment is affirmed.

In this opinion the other judges concurred.


author: Daly, J.

text:
    Louis J. Wordie et al. v. Ronald Staggers
    (10388)
    Dupont, C. J., Daly and O’Connell, Js.
    Argued March 24
    decision released April 28, 1992

      Karen E. Souza, with whom, on the brief, was Alan E. Silver, for the appellants (plaintiffs).

      William J. Massie, Jr., for the appellee (defendant).
   Daly, J.

The plaintiffs, Louis and Michelle Wordie, appeal from the trial court’s judgment of dismissal rendered at the conclusion of the plaintiffs’ evidence. The plaintiffs claim that, because they made out a prima facie case, the trial court abused its discretion in granting the defendant’s motion to dismiss. We agree with the plaintiffs and reverse the decision of the trial court.

The plaintiffs sought damages for the defendant’s unauthorized entrance on the plaintiffs’ land and the removal of three trees located on the plaintiffs’ land. In his pleadings, the defendant admitted that he had entered the plaintiffs’ land, but claimed that he was authorized to do so. Louis Wordie testified that his daughter had called him and told him that the defendant was cutting down trees on the plaintiffs’ property. There was no objection to the admission of this hearsay statement made by the plaintiffs’ daughter who did not testify at trial. The plaintiffs’ expert, a horticultural consultant, examined the plaintiffs’ property approximately two months after the defendant had entered the plaintiffs’ land in August, 1989. On the basis of his analysis, the expert concluded that the tree and its branches had been cut down. The expert further testified as to the value of the trees.

At the conclusion of the plaintiffs’ case, the defendant moved for a judgment of dismissal pursuant to Practice Book § 302. The defendant argued that the plaintiffs failed to establish a prima facie case that the defendant had cut the trees identified by the plaintiffs’ expert. The court agreed with the defendant and rendered a judgment of dismissal. The plaintiffs appealed from that decision.

When reviewing a judgment of dismissal rendered pursuant to Practice Book § 302, the issue is “whether sufficient facts were proved to make out a prima facie case.” Angelo Tomasso, Inc. v. Armor Construction & Paving, Inc., 187 Conn. 544, 547-48, 447 A.2d 406 (1982). “The evidence offered by the plaintiff[s] is to be taken as true and interpreted in the light most favorable to [them], and every reasonable inference is to be drawn in [their] favor.” Id., 548. Whether the plaintiffs established a prima facie case is a question of law. Id., 561.

The plaintiffs established a prima facie case. In his answer, the defendant admitted having been on the plaintiffs’ land. There was evidence indicating that the plaintiffs did not authorize the defendant to be on their land. The hearsay statement by the plaintiffs’ daughter that the defendant was cutting down trees was admitted without objection. This was sufficient to establish the defendant’s removal of the trees.

The defendant argues that the plaintiffs failed to offer proof of the reasonable value of the trees that were removed. Therefore, the plaintiffs did not establish the essential element of damages and failed to make a prima facie case. Even if the plaintiffs failed to prove actual damages with reasonable certainty, they would be entitled to at least nominal damages for the wrongful invasion of their property. Patalano v. Chabot, 139 Conn. 356, 362, 94 A.2d 15 (1952).

“Although the plaintiffs may not have presented a strong case for obtaining relief, even a weak case may be strong enough to withstand the zephyr of an evidentiary nonsuit.” Hinchliffe v. American Motors Corporation, 184 Conn. 607, 622, 440 A.2d 810 (1981). The plaintiffs are entitled to a new trial because the trial court improperly granted the defendant’s motion to dismiss. See Falker v. Samperi, 190 Conn. 412, 427, 461 A.2d 681 (1983).

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

In this opinion the other judges concurred.


author: O’Connell, J.

text:
    Jeri L. Billington v. Randall J. Billington
    (8571)
    O’Connell, Landau and Cretella, Js.
    Submitted January 17
    decision released April 28, 1992

      Gerald L. Garlick, with whom, on the brief, was Alan Saltzman, for the appellant (plaintiff).

      Randall J. Billington, pro se, the appellee (defendant).

      C. Ian McLachlan, William H. Narwold and Laura B. Welch filed a brief for Connecticut Chapter of the American Academy of Matrimonial Lawyers as ami-cus curiae.
   O’Connell, J.

This case is before us on remand from the Supreme Court. We previously considered the matter in Billington v. Billington, 23 Conn. App. 45, 578 A.2d 674 (1990), where we held that the plaintiff was barred from opening the judgment because she had not exercised due diligence in attempting to discover the defendant’s alleged fraud. Consequently, we did not reach the plaintiff’s other appellate claims. The Supreme Court granted certification, reversed our decision and remanded the case to this court for consideration of the unresolved claims. Billington v. Billington, 220 Conn. 212, 225, 595 A.2d 1377 (1991). The unresolved claims are that the trial court improperly opened the judgment because (1) there was no clear evidence of fraud, (2) the plaintiff lacked clean hands, and (3) the plaintiff’s motion was barred by the doctrine of laches.

A complete recitation of the facts is available by reference to our prior decision. Billington v. Billington, supra, 23 Conn. App. 45. A brief synopsis is adequate for the purposes of this opinion. On June 19, 1987, the marriage of the parties was dissolved. The trial court ordered a property division based on a settlement agreement that had been incorporated by reference in the stipulated judgment. In entering into this agreement, the plaintiff relied on the defendant’s financial affidavit in which he listed the value of the property he received under the terms of the agreement at $225,000. The defendant did not disclose that he had already received a written offer to purchase that property for $380,000. Three days after the dissolution of marriage, the defendant accepted the offer and conveyed the property for a renegotiated purchase price of $360,000. In December, 1988, the plaintiff moved to open the judgment claiming that the defendant had fraudulently concealed the property’s value.

The trial court, Harrigan, J., held a hearing on the plaintiff’s motion and concluded that the defendant’s failure to disclose the written offer to purchase the property established fraud by clear and satisfactory evidence. The court also found that there had been no laches on the plaintiff’s part in bringing the motion to open, nor did the plaintiff lack diligence in attempting to discover the fraud. Because the court further found that there was a substantial likelihood that the result of a new hearing would be different, Judge Harrigan ordered a new hearing. At that hearing, the court, F. Freedman, J., rendered new financial orders, including an order that the defendant pay the plaintiff an additional $45,000 plus interest. The new financial orders are not the subject of this appeal.

The defendant is asking this court to reverse Judge Harrigan’s factual findings. It is fundamental jurisprudence that “[a] factual finding may be rejected by this court only if it is clearly erroneous. . . . The trier of fact has wide latitude in its interpretation of the evidence and the conclusions to be drawn therefrom. Trial courts have a distinct advantage over an appellate court in dealing with domestic relations, where all of the surrounding circumstances and the appearance and attitude of the parties are so significant. . . . This court may not substitute its own opinion . . . for the factual finding of the trial court.” (Citations omitted; internal quotation marks omitted.) Jackson v. Jackson, 2 Conn. App. 179, 195, 478 A.2d 1026, cert. denied, 194 Conn. 805, 478 A.2d 710 (1984).

In the present case, Judge Harrigan based his decision in part on his finding that the plaintiff was a more credible witness than the defendant.* “The contours of the determination of credibility are uniquely shaped by the trial court and are not reviewable on appeal.” State v. Rothenberg, 195 Conn. 253, 257, 487 A.2d 545 (1985). The trial court had the advantage of observing the appearance, demeanor and attitude of the parties. “In determining whether the trial court’s broad legal discretion is abused, great weight is due to the action of the trial court and every reasonable presumption should be given in favor of its correctness.” (Internal quotation marks omitted.) Caristia v. Caristia, 22 Conn. App. 392, 395, 577 A.2d 1096 (1990).

The trial court properly recognized that to open a judgment on the basis of fraud the following criteria must be satisfied: “(1) There must have been no laches or unreasonable delay by the injured party after the fraud was discovered. (2) There must have been diligence in the original action, that is, diligence in trying to discover and expose the fraud. (3) There must be clear proof of the perjury or fraud. (4) There must be a substantial likelihood that the result of the new trial will be different.” (Internal quotation marks omitted.) Billington v. Billington, supra, 220 Conn. 218.

The three claims put forth by one defendant would require us to retry the trial court’s factual findings. Because of the extensive discretion afforded a trial court in making determinations of credibility and fact-finding, we may not disregard such findings unless the defendant has demonstrated that those findings were clearly erroneous. Both the laches and fraud issues, as well as the question of whether the plaintiff lacked clean hands, necessarily involve factual determinations that are presumed to be correct on review. Here, the defendant failed to overcome this presumption.

The second criteria involving opening a judgment based on fraud was determined on appeal by the Supreme Court in Billington v. Billington, supra, 220 Conn. 217, and, therefore, we need not address it here. The fourth criteria that “there must be a substantial likelihood that the result of the new trial will be different”; id., 218; in some cases requires prognostication of the outcome of a future proceeding. Notwithstanding that this court has on occasion resorted to a limited amount of judicial tea leaf reading; see State v. Brown, 14 Conn. App. 605, 629, 543 A.2d 750, cert. denied, 208 Conn. 816, 546 A.2d 283 (1988); we need not do so in this case. Here, the new hearing ordered by Judge Harrigan already took place before Judge Freedman and has in fact resulted in different financial orders.

The judgment of the trial court is affirmed.

In this opinion the other judges concurred.

       The trial court’s attitude concerning the credibility of the parties is indicated in the following quotation from the court’s remarks contained in the transcript of the defendant’s motion for reargument and reconsideration of the issue of laches. “We had a full blown trial, and you [defendant’s counsel] were wide ranging on everything you wanted to go into. And I heard the witnesses, and I heard the parties, and part of my decision, who I would believe was based upon my judgment of credibility, and I frankly found Mrs. Billington to be a much more credible witness than Mr. Billington. I found his lame explanation of what he did to be very uncredible, and I think it was very self-serving, and this claim that you make for him now that he has been inflicted with prejudice has been self-inflicted, and it’s simply a matter where his house of cards collapsed upon him. . . .’’(Emphasis added.)

       Prognostication would be necessary on review only where the motion to open the judgment was denied by the trial court. See Jackson v. Jackson, 2 Conn. App. 179, 194-96, 478 A.2d 1026 (1984). If, however, the motion is granted, as in the present case, the final judgment doctrine would prevent an appeal until the new hearing had been held.


author: Freedman, J.

text:
    Donna Jeffries v. Willie Johnson et al.
    (10199)
    Foti, La very and Freedman, Js.
    Argued February 25
    decision released May 5, 1992

      Richard G. Kascak, Jr., with whom, on the brief, were Bruce L. Levin and Serge G. Mihaly, for the appellant (named defendant).

      Donald J. McCarthy, Jr., for the appellee (plaintiff).
   Freedman, J.

The named defendant appeals from the judgment of the trial court setting aside the verdict and ordering a new trial. The defendant claims that the trial court improperly set the verdict aside, or in the alternative, that it should have ordered an additur pursuant to General Statutes § 52-228b rather than ordering a new trial. In addition, the defendant urges us to review this matter under a clearly erroneous standard rather than an abuse of discretion standard. We agree with the defendant that the trial court should have ordered an additur rather than ordering a new trial, and therefore set aside the trial court’s judgment and remand this matter with direction to determine a reasonable additur.

The jury reasonably could have found the following facts. On October 26,1986, the defendant, while driving his automobile, was making a left turn into his driveway when a vehicle operated from the opposite direction by the plaintiff collided with his vehicle. The plaintiff suffered physical injuries to her head, neck, back, arm and knee as a result of the accident. At the time of the accident, the plaintiff, who was employed by the Southbury Training School, was out of work and receiving workers’ compensation benefits due to a work related injury to her lumbar spine. After the accident the plaintiff began treatment with a chiropractor for injuries to her neck and arm.

Nine months after the accident, the plaintiff consulted Richard Matza, an orthopedic surgeon, complaining of pain and swelling in her right knee. Matza performed an arthrogram that revealed a torn medial meniscus and recommended arthroscopic surgery. After this recommendation but before the surgery was performed, the plaintiff was involved in another accident in which she injured the same knee. Thereafter, Matza performed the arthroscopic surgery.

The plaintiff brought an action seeking money damages for the personal injuries sustained in the accident, as well as damages for her pain and suffering. Matza testified that what he had observed during the surgery was consistent with the trauma caused by the accident with the defendant. He also testified that in his opinion the plaintiffs permanent partial impairment had risen to 15 percent at the time of the trial.

Robert W. Ferraro, also an orthopedic surgeon, examined the plaintiff on behalf of the defendant and reviewed her medical records. Ferraro conducted his examination of the plaintiff after she had been involved in the second, unrelated accident. Ferraro testified that it could not be determined how much of the damage to the plaintiffs knee was caused by the accident with the defendant and how much was caused by the subsequent accident.

The jury returned a verdict in the plaintiffs favor. Pursuant to General Statutes § 52-572h (f), the jury itemized its award. It found the plaintiffs economic damages to be $10,653.79, and found zero to be the amount of the plaintiff’s noneconomic damages. The jury further found that the plaintiff was 30 percent con-tributorily negligent, and thus it awarded her damages in the amount of $7457.65.

Thereafter, the plaintiff moved to set aside the verdict as to damages only, or in the alternative, that the entire verdict be set aside. She argued that the award of damages by the jury was “inadequate, contrary to law and contrary to the evidence.” She requested, however, that the verdict not be set aside until the parties had first been given the opportunity to accept a reasonable additur, as determined by the trial court.

The trial court granted the motion to set aside the verdict, declined to order an additur, and ordered a new trial on all issues. The trial court stated in its memorandum of decision that even though both parties argued that “in the event the court is inclined to set the verdict aside, it must order an additur in accordance with [the pertinent provision of § 52-228b],” the court did not agree. The trial court stated that “[t]he problem with the verdict in this case is not that it is inadequate but that it is contradictory and unjust.” The court reasoned that the award of economic damages meant that the jury found that the defendant was responsible for all of the plaintiff’s injuries but that the failure to award noneconomic damages meant that the jury found that the defendant was responsible for none of the plaintiff’s injuries.

We first take up the question of the standard of review to be applied in this matter. The defendant recognizes that we typically review the trial court’s action regarding a motion to set aside a verdict under the “abuse of discretion” standard. See, e.g., Creem v. Cicero, 12 Conn. App. 607, 610, 533 A.2d 234 (1987). Nevertheless, he urges us to subject the trial court’s action in this regard to a more rigorous standard because its action implicates the parties’ right to a jury trial. The defendant urges us to review the trial court’s action under the “clearly erroneous” standard set forth in Practice Book § 4061.

Quite recently, our Supreme Court addressed the issue of the proper appellate standard of review when considering the action of a trial court granting or denying a motion to set aside a verdict and motion for a new trial. In State v. Hammond, 221 Conn. 264, 270, 604 A.2d 793 (1992), the court concluded that the appropriate standard of review was the “abuse of discretion” standard.

We now proceed to determine whether the trial court abused its discretion when it granted the plaintiff’s motion to set aside the verdict. “[I]t is the court’s duty to set aside the verdict when it finds that it does manifest injustice, and is . . . palpably against the evidence. ...” (Internal quotation marks omitted.) Malmberg v. Lopez, 208 Conn. 675, 679-80, 546 A.2d 264 (1988). “[I]f the amount awarded shocks the sense of justice as to what is reasonable, then the inferred conclusion is that the jury was misguided in reaching its decision. . . .” (Internal quotation marks omitted.) Id., 680. “Because a trial court is in a better position than an appellate court to determine whether a jury’s verdict was improperly influenced, its decision should be given great weight and every reasonable presumption of correctness should be accorded to it.” Brennan v. Manlapaz, 19 Conn. App. 71, 74, 560 A.2d 988 (1989). Here, the trial court, concluded that “if the plaintiff is entitled to a verdict, the one rendered was manifestly inadequate, and the motion to set [it] aside should be granted.”

The award of economic damages and the finding of a percentage of contributory negligence on the part of the plaintiff make it abundantly clear that the jury found the plaintiff’s injuries were in fact caused by the negligence of the defendant, and that the plaintiff was entitled to more than nominal damages. The problem with the verdict is that “[a]s a general rule, it is manifestly unjust for the jury to fail to award damages for pain and suffering when it awards special damages.” Creem v. Cicero, supra, 611. “The general rule in Connecticut is that where a plaintiff is entitled to recover damages for pain and suffering, an award limited to nominal or special damages is inadequate as a matter of law and should be set aside. [Malmberg v. Lopez, supra, 681]; Johnson v. Franklin, 112 Conn. 228, 229, 152 A. 64 (1930).” Brennan v. Manlapaz, supra.

We therefore agree with the trial court’s finding that the verdict was inadequate, and thus hold that it did not abuse its discretion by concluding that the verdict should be set aside.

We now must determine whether the trial court properly ordered a new trial on all issues before giving the parties an opportunity to accept a reasonable additur. General Statutes § 52-228b provides in pertinent part that “[n]o .... verdict may be set aside solely on the ground that the damages are inadequate until the parties have first been given an opportunity to accept an addition to the verdict of such amount as the court deems reasonable.” (Emphasis added.)

The trial court mistakenly concluded that the provisions of § 52-228b do not apply in this case. In addressing the parties’ request that the court order an additur if it found that the verdict should be set aside, the trial court characterized the jury’s verdict as “contradictory and unjust” because it believed that the jury’s award of zero noneconomic damages indicated that the jury found that the defendant caused none of the plaintiff’s injuries. It thus concluded that it could not order an additur before ordering a new trial because inadequacy of the damages was not the sole grounds for the setting aside of the verdict.

“[T]he jury’s intent in finding the issues for the plaintiff, but awarding zero damages, is known only to the jurors, and this court’s endorsement of one plausible explanation of the verdict over another would amount merely to speculation.” Malmberg v. Lopez, supra, 683. “A plaintiff’s verdict with a nominal damage award ordinarily suggests that the jury found that despite the defendant’s liability, the plaintiff failed to prove damages. See, e.g., Riccio v. Abate, [176 Conn. 415, 418-19, 407 A.2d 1005 (1979)]; Covey v. Willson, 4 Conn. App. 233, 239, 493 A.2d 290 (1985). The jury’s intent in rendering a plaintiff’s verdict with zero [noneconomic] damages ... is far less clear.” Malmberg v. Lopez, supra, 681-82. The trouble with the trial court’s reasoning that the jury’s award indicates that the defendant caused none of the plaintiff’s noneconomic damages is that it disregards other explanations that are also plausible, and for the trial court to select one explanation over the other is to engage in the type of speculation discountenanced in Malmberg.

Indeed, the trial court in the present case described the verdict as “unjust and contradictory” when it discussed why § 52-228b did not apply. It also used the phrase “manifestly inadequate” when concluding that the verdict had to be set aside. We do not see any meaningful distinction between “unjust” and “inadequate” as the terms are used in this matter. The trial court’s additional use of the word “contradictory” does not serve to remove the facts of this case from the scope of § 52-228b. The verdict is contradictory only if we assume, as the trial court did, that the jury, in awarding zero noneconomic damages, found that none of the plaintiff’s injuries was caused by the defendant, an assumption that Malmberg instructs we are not permitted to make. We hold, therefore, that the trial court should not have set aside the verdict and ordered a new trial until it had given the parties the opportunity to accept an addition to the verdict in such amount as the trial court deemed reasonable.

The judgment is set aside and the case is remanded to determine a reasonable additur, to give the parties an opportunity to accept the additur and only if they do not accept the additur to set aside the verdict and to order a new trial as to all issues.

In this opinion the other judges concurred.

       The action against the defendant Ferba Johnson, the owner of the vehicle involved in this case, was withdrawn. As used in this opinion, defendant refers to the named defendant.

       General Statutes § 52-228b provides: “No verdict in any civil action involving a claim for money damages may be set aside except on written motion by a party to the action, stating the reasons relied upon in its support, filed and heard after notice to the adverse party according to the rules of the court. No such verdict may be set aside solely on the ground that the damages are excessive unless the prevailing party has been given an opportunity to have the amount of the judgment decreased by so much thereof as the court deems excessive. No such verdict may be set aside solely on the ground that the damages are inadequate until the parties have first been given an opportunity to accept an addition to the verdict of such amount as the court deems reasonable.”

       This is the exact total amount of the medical bills introduced into evidence by the plaintiff.

       General Statutes § 52-572h (a) defines “economic damages” as “compensation determined by the trier of fact for pecuniary losses including, but not limited to, the cost of reasonable and necessary medical care, rehabilitative services, custodial care and loss of earnings or earning capacity excluding any noneconomic damages.” “Noneconomic damages” are defined in the same subsection as “compensation determined by the trier of fact for all nonpecuniary losses including, but not limited to, physical pain and suffering and mental and emotional suffering.”

       Practice Book § 4061 provides in pertinent part: “The supreme court may reverse or modify the decision of the trial court if it determines that the factual findings are clearly erroneous in view of the evidence and pleadings in the whole record, or that the decision is otherwise erroneous in law. . . .”

       “Special damages” are also known as “economic damages.”

         The defendant hypothesizes that the jury disbelieved the plaintiff’s claims of pain and suffering, or in the alternative, that the jury found that the pain and suffering was caused by another trauma or traumas.


author: Foti, J.

text:
    Nancy Burton v. John M. Dillman, Conservator (Estate of Doreen Danks)
    (10562)
    Foti, Heiman and Freedman, Js.
    Argued February 21
    decision released May 5, 1992

      Nancy Burton, pro se, the appellant (plaintiff).

      Melinda S. Monson, with whom, on the brief, was Richard A. O’Connor, for the appellee (defendant).
   Foti, J.

This is an appeal by the plaintiff, Nancy Burton, from the trial court’s granting of the defendant’s motion to dismiss her appeal from an order and decree of the Redding Probate Court. The defendant, John M. Dillman, is the conservator of the estate of Doreen Danks, who was adjudicated an incapable person in 1985. The Probate Court had granted the defendant permission to sell Danks’ property known as Storm-field. The trial court granted the defendant’s motion to dismiss because the plaintiff was not a proper party before the Probate Court, and, therefore, lacked standing to appeal. We agree.

On May 30, 1990, the plaintiff presented the Probate Court with a verified notice of intervention seeking to intervene in the proceedings involving the defendant’s application to sell Stormfield. She purported to file the notice pursuant to General Statutes §§ 22a-19 (a) and 22a-19a which she claimed made her a statutory party with automatic standing to commence the appeal to the Superior Court.

Section 22a-19 (a) allows intervention by a party upon filing a verified pleading asserting that a proposed activity “involves conduct which has, or which is reasonably likely to have, the effect of unreasonably polluting, impairing or destroying the public trust in the air, water or other natural resources of the state.”

Section 22a-19a expressly makes the provisions of § 22a-19 (a) applicable to the unreasonable destruction of historic structures and landmarks of the state that are “listed or under consideration for listing as individual units on the National Register of Historic Places.” Property is deemed “under consideration” from the date that various persons are notified pursuant to federal law that the property is scheduled for consideration by the preservation board register, until the date of the final decision to either include or reject the property. 84 Connecticut Attorney General Opinions, No. 80, p. 296-97 (1984).

Even if we assume arguendo that the plaintiff was able to establish standing under § 22a-19a by showing that the property is “listed or under consideration for listing” on the National Register of Historic Places, she would nonetheless lack standing for an appeal from Probate Court pursuant to General Statutes § 45a-186. The Probate Court’s jurisdiction and powers have been set forth in Chapter 801a (General Statutes § 45a-98 et seq.) and are so limited. Its statutory power does not include preservation of historic landmarks nor can it claim jurisdiction over environmental issues. Furthermore, the sole issue before the Probate Court in this case was the sale of the property, not its use.

While a basic purpose of § 22a-19 (a) is to give persons standing to bring actions to protect the environment; Red Hill Coalition, Inc. v. Town Plan & Zoning Commission, 212 Conn. 727, 734, 563 A.2d 1347 (1989); and intervention in an administrative proceeding is for the limited purpose of raising environmental issues; Connecticut Fund for the Environment, Inc. v. Stamford, 192 Conn. 247, 248 n.2, 470 A.2d 1214 (1984); “General Statutes § 22a-19 does not expand the jurisdictional authority of an administrative body acting pursuant to a separate act of title 22a to hear any and all environmental matters, but rather, limits an intervenor to the raising of those environmental matters which impact on the particular subject of the act pursuant to which the commissioner is acting.” (Emphasis in original.) Connecticut Water Co. v. Beausoleil, 204 Conn. 38, 46, 526 A.2d 1329 (1987). Even if we assume that a Probate Court is included within § 22a-19 (a), it may act only within its powers authorized by statute and an intervening plaintiff is limited to raising environmental matters relating to those statutory powers. The plaintiff may not expand the scope of that action. Id., 47. The Probate Court is a court of limited jurisdiction having only such powers as given by statute; Prince v. Sheffield, 158 Conn. 286, 293-94, 259 A.2d 621 (1969). “ ‘[A] court which exercises a limited and statutory jurisdiction is without jurisdiction to act unless it does so under the precise circumstances and in the manner particularly prescribed by the enabling legislation.’ ” Marcus’Appeal from Probate, 199 Conn. 524, 529, 509 A.2d 1 (1986).

We conclude, as did the trial court, that the Redding Probate Court does not have jurisdiction to decide environmental matters, and that the plaintiff therefore had no right to intervene in the probate proceedings. The concept of standing involves aggrievement, that is, an injury in fact, plus whatever other conditions must exist to allow a party to appeal. Ardmare Construction Co. v. Freedman, 191 Conn. 497, 500-504, 467 A.2d 674 (1983). Because the plaintiffs claim of aggrievement rested on issues that were not within the authority of the Probate Court to decide, the Superior Court lacked jurisdiction to hear her appeal from the Probate Court order. “An appeal from probate is not so much an ‘appeal’ as a trial de novo with the Superior Court sitting as a Probate Court and restricted by a Probate Court jurisdictional limitations.” Gardner v. Balfoni, 218 Conn. 220, 225, 588 A.2d 204 (1991). The trial court properly granted the defendant’s motion to dismiss.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 22a-19 (a) provides: “In any administrative, licensing or other proceeding, and in any judicial review thereof made available by law, the attorney general, any political subdivision of the state, any instrumentality or agency of the state or of a political subdivision thereof, any person, partnership, corporation, association, organization or other legal entity may intervene as a party on the filing of a verified pleading asserting that the proceeding or action for judicial review involves conduct which has, or which is reasonably likely to have, the effect of unreasonably polluting, impairing or destroying the public trust in the air, water or other natural resources of the state.”

       General Statutes § 22a-19a provides: “The provisions of sections 22a-15 to 22a-19, inclusive, shall be applicable to the unreasonable destruction of historic structures and landmarks of the state, which shall be those properties (1) listed or under consideration for listing as individual units on the National Register of Historic Places (16 USC 470a, as amended) or (2) which are a part of a district listed or under consideration for listing on said national register and which have been determined by the state historic preservation board to contribute to the historic significance of such district. If the plaintiff in any such action cannot make a prima facie showing that the conduct of the defendant, acting alone or in combination with others, has or is likely unreasonably to destroy the public trust in such historic structures or landmarks, the court shall tax all costs for the action to the plaintiff.”

       General Statutes § 45a-186 provides: “appeals from probate. Any person aggrieved by any order, denial or decree of a court of probate in any matter, unless otherwise specially provided by law, may appeal therefrom to the superior court for the judicial district in which such court of probate is held. Except in the case of an appeal by the state, such person shall give security for costs in the amount of one hundred fifty dollars, which may be paid to the clerk, or a recognizance with surety annexed to the appeal and taken before the clerk or a commissioner of the superior court or a bond substantially in accordance with the bond provided for appeals to the supreme court. Appeals from any decision rendered in any case after a record is made under sections 51-72 and 51-73 shall be on the record and shall be a trial de novo.”


text:
    Catherine Boulay v. City of Waterbury
    (10180)
    Dupont, C. J., O’Connell and Lavery, Js.
    Argued October 30, 1991
    decision released May 5, 1992

      Ronald Cordilico, with whom, on the brief, was Marcia McCormack, legal intern, for the appellant (plaintiff).

      Thomas H. Cotter, for the appellee (defendant).
   O’Connell, J.

This appeal concerns the compensation review division’s denial of the plaintiff’s workers’ compensation claim. The plaintiff argues that the review division incorrectly held that payment of her full annual teacher’s salary satisfied the obligation of the defendant Waterbury board of education under the workers’ compensation law. We affirm the compensation review division’s decision.

On September 6, 1986, the plaintiff suffered an injury arising out of and within the scope of her employment as a Waterbury public school teacher. The plaintiff received two thirds of her salary as temporary disability payments pursuant to a voluntary agreement signed by both parties and approved by the workers’ compensation commissioner. General Statutes § 31-307. She was not paid workers’ compensation benefits during the summer vacation period of 1987 and did not allege a wage loss due to her inability to pursue summer employment. In addition, the defendant paid the plaintiff a supplement equal to the remaining one third of her salary pursuant to a collective bargaining agreement between the defendant and the Waterbury teachers association. These payments, equaling 100 percent of the plaintiffs salary, were paid during the period of the plaintiffs absence from work during the school years 1986-87 and 1987-88.

On June 21, 1988, the defendant filed a notice to discontinue benefits. Two days later, the plaintiff filed an objection to the discontinuance of benefits and a request for an informal hearing before the workers’ compensation commissioner. Following the commissioner’s denial of her claim that she was entitled to disability payments for the weeks of disability occurring in July and August, 1988, the plaintiff appealed to the compensation review division. The review division determined that the plaintiff’s statutory two-thirds benefit amounted to $22,224 and held that if she had not received that sum she was entitled to the difference between the amount she actually received and $22,224. Because the record before it did not furnish complete information on the inclusion of annual salary increments or deduction of federal income tax withholding, the review division could not determine if the plaintiff had received the $22,224 due her. Accordingly, it remanded the matter to the commissioner for the limited purpose of ascertaining the total sum actually paid and, if necessary, for further ruling consistent with its opinion.

The remand to the commissioner raises a threshold question of whether the decision of the compensation review division was a final administrative determination from which an appeal could be taken to this court. Recent decisions have held that a review division decision is final for purposes of appeal if the proceedings to be conducted by the commissioner on remand are purely ministerial. On the other hand, if the remand requires the commissioner to take evidence and exercise independent discretion or judgment, there is no final determination and an appeal is premature. Cleveland v. U.S. Printing Ink, Inc., 218 Conn. 181, 185-86, 588 A.2d 194 (1991); Guinan v. Direct Marketing Assn., Inc., 22 Conn. App. 515, 516, 578 A.2d 129 (1990). In the present case, the remand does not require the commissioner to exercise discretion or independent judgment. The remand can be satisfied simply by ascertaining how much money the plaintiff has already received. We conclude that the review division decision is final and appealable despite the remand to the commissioner.

As a Waterbury public school teacher, the plaintiff was entitled to workers’ compensation benefits pursuant to General Statutes § 31-307 for the two year period during which she was temporarily disabled. The plaintiff is statutorily entitled to two thirds of her annual salary for the period of her temporary disability. Because the plaintiff has received the mandated two thirds of her salary for each of the years involved, the defendant’s obligations under the workers’ compensation law have been satisfied.

The plaintiff assumes that because the review division’s memorandum of decision refers to the collective bargaining agreement, the review division relied on it in determining whether the defendant had met its obligations under the workers’ compensation law. This assumption is incorrect. Despite the memorandum’s language, it is apparent that the review division based its decision on the issue of whether the defendant had paid the plaintiff two thirds of her salary pursuant to General Statutes § 31-307. The fact that the plaintiffs collective bargaining agreement may have given rise to an enforceable contractual claim that required payment to her of the remaining one third of her salary is irrelevant because it is unrelated to the jurisdiction of the compensation review division. This appeal is controlled by the workers’ compensation statute and the sole issue is whether the plaintiff has received the benefits to which she was entitled under that statute. Here, the plaintiff was awarded all of the workers’ compensation payments to which she was statutorily entitled. Payments to the plaintiff under the collective bargaining agreement do not present an issue for this court, nor does it appear that such payments affected the review division’s decision regarding the plaintiff’s entitlement under § 31-307.

The decision of the compensation review division is affirmed.

In this opinion the other judges concurred.

       General Statutes § 31-307 provides in pertinent part: “If any injury for which compensation is provided under the provisions of this chapter results in total incapacity to work, there shall be paid to the injured employee a weekly compensation equal to sixty-six and two-thirds per cent of his average weekly earnings at the time of the injury . . . (Emphasis added.)

       Section 5 of the Waterbury teachers association agreement provides: “Whenever a teacher is absent from school as a result of personal injury caused by an accident or an assault, arising out of, and in the course of, his employment, compensable under the Worker’s Compensation Law, he shall be paid, in addition to his compensation payment, an amount which, joined with the compensation payment, will equal his full salary for a period of such absence, and no part of such absence shall be charged to his annual or accumulative sick leave.”


text:
    Donna M. Cohen v. Town of Hamden
    (10419)
    Foti, Laveky and Freedman, Js.
    Argued February 25
    decision released May 5, 1992

      Barry B. Johnson-Fay, for the appellant (plaintiff).

      Burton S. Rosenberg, town attorney, for the appellee (defendant).
   Freedman, J.

The plaintiff appeals from the judgment of the trial court setting aside a jury verdict awarding her $200,000 in damages. The plaintiff claims that the trial court improperly concluded (1) that there was insufficient evidence to support the verdict and (2) that the jury allowed sympathy to influence its verdict.

The plaintiff brought an action against the defendant seeking money damages for personal injuries sustained in a motor vehicle accident. The complaint alleged that the defendant breached its statutory duty, pursuant to General Statutes § lSa-149, to maintain its streets in a reasonably safe condition, and that this breach of duty caused the plaintiff to suffer physical injuries. The complaint further alleged, inter alia, that the street was in a defective and dangerous condition in that its surface was covered with ice and snow; that the defendant was aware of such condition or, in the exercise of reasonable care and inspection, should have been aware of such condition; that such condition was the sole proximate cause of the accident and the injuries to the plaintiff; and that the plaintiff had given the defendant the requisite statutory notice. The defendant’s answer denied the allegations of the plaintiff and asserted the special defense of contributory negligence, which special defense the plaintiff denied.

The jury reasonably could have found the following facts. At approximately 5 a.m. on February 23, 1987, the plaintiff, a special education teacher in the New Haven school system, went outside of her house and observed that it had begun to snow. She learned by listening to the radio that the schools in Hamden were closed but that the schools in New Haven were open. She left in her car for work between 6:10 and 6:15 a.m. As she drove down a hill on Benham Street, her car began to slide to the left and struck a car that was coming up the hill. The plaintiff suffered injuries to her head, back, arms and legs. The Hamden police detective who responded to the accident testified that he was dispatched to the scene at 6:27 a.m. The total snowfall on February 23,1987, was about two and one-half inches, which accumulated between approximately 5 a.m. and noon. The public works crews of the town of Hamden normally report for work at 8 a.m., but were called in at 6 a.m. to plow and sand the roads.

The matter was tried to a jury and after the plaintiff rested her case, the defendant moved for a directed verdict, which the trial court denied. The defendant then rested without presenting any evidence. The court charged the jury and the jury returned a verdict in favor of the plaintiff, awarding her damages in the amount of $200,000. The defendant thereafter filed a timely motion to set aside the verdict on the grounds of insufficient evidence. The trial court granted the defendant’s motion.

In its memorandum of decision, the trial court referred to the fact that the plaintiff suffers from multiple sclerosis, a condition not claimed to be due to the injuries sustained in the accident, and that throughout the trial the plaintiff’s movement in front of the jury “was extremely slow and made with apparent discomfort.” The court stated that “[t]he evocative appeal to the jury for its sympathy was intense throughout the trial.” The trial court concluded that even though it had instructed the jury to set aside any feelings of sympathy and to decide the matter on the basis of the facts presented, it was obvious from the award that the jury allowed sympathy to influence the verdict and that the verdict rendered was biased and the result of prejudice.

In addition, the trial court found that the evidence was “insufficient to meet the burden of proof required as to each and every element under [§ 13a-149],” and concluded its memorandum with the statement that “[t]he verdict herein is set aside because the evidence is insufficient to support the verdict.” Because we agree with the trial court that there was insufficient evidence to support the verdict, we need not reach the issue of the propriety of the trial court’s findings and comments regarding the physical condition of the plaintiff and the influence that it may have had on the jury.

When considering the action of a trial court granting or denying a motion to set aside a verdict, we must determine whether the trial court abused its discretion. State v. Hammond, 221 Conn. 264, 604 A.2d 793 (1992); Jeffries v. Johnson, 27 Conn. App. 471, 475, 607 A.2d 443 (1992). “The trial court has the inherent power to set aside a jury verdict which, in the court’s opinion, is either against the law or the evidence.” O’Brien v. Seyer, 183 Conn. 199, 208, 439 A.2d 292 (1981). “The decision to set aside a verdict involves the exercise of a broad discretion in the trial court which, in the absence of a clear abuse, will not be disturbed and, in reviewing the exercise of that discretion, every reasonable presumption should be indulged in favor of its correctness.” Id.

“We are also mindful of the unavoidable tension between our deferential standard of appellate review and the litigants’ constitutional rights to have issues of fact resolved by a jury.” Donahue v. State, 27 Conn. App. 135, 140, 604 A.2d 1331 (1992). “Because by setting the verdict aside the trial court infringed on the parties’ rights to have factual issues resolved by a jury, we examine the evidential basis of the verdict itself to determine whether the trial court abused its discretion.” Id.

The basis of the plaintiff’s claim was that the town breached its statutory duty to keep its streets free of defects, namely, ice and snow. “In order to recover under [a] complaint for breach of statutory duty, the plaintiff must prove, by a preponderance of the evidence (1) that the highway was defective in the manner claimed, (2) that the defendant actually knew of the particular defect or that, in the exercise of its supervision of highways in the municipality, it should have known of that defect, (3) that the defendant, having actual or constructive knowledge of this defect, failed to remedy it, having had a reasonable time, under all the circumstances, to do so, and (4) that the defect must have been the sole proximate cause of the injuries claimed, which means that the plaintiff must prove freedom from contributory negligence. Lukas v. New Haven, 184 Conn. 205, 207, 439 A.2d 949 (1981).” (Emphasis added.) Janow v. Ansonia, 11 Conn. App. 1, 2-3, 525 A.2d 966 (1987); see also Hall v. Burns, 213 Conn. 446, 462, 569 A.2d 10 (1990).

In setting aside the verdict, the trial court found that the plaintiff had failed to sustain her burden of proving that the defendant had notice of the defect, and had sufficient time to remedy the defect. It is clear that the defendant had notice that it had begun to snow prior to the accident. The notice that is required by § 13a-149, however, is notice of “the particular defect itself which caused the injury and not merely notice of the conditions naturally productive of the defect and in fact producing it.” Baker v. Ives, 162 Conn. 295, 305, 294 A.2d 290 (1972). “If the plaintiff is to prevail, evidence had to be introduced to show that the ice was at the locus of the [accident] for a sufficient period of time so that the condition should have been discovered had the [town] exercised reasonable supervision over its highways as a whole.” Id.

The plaintiff also was required to prove that the town was afforded a reasonable opportunity to remedy the defect. The standard of care to be applied in determining whether a municipality has had a reasonable opportunity to remedy a highway defect is “the care which the ordinary prudent person under the circumstances would exercise.” Hall v. Burns, supra, 474. “[I]t was incumbent on the plaintiff to establish that the defect had been there a sufficient length of time and was of such a dangerous character that the defendant by the exercise of reasonable care could and should have discovered and remedied it. And proof of this fact must be definite and clear.” Ward v. Hartford, 134 Conn. 694, 695, 60 A.2d 512 (1948).

The evidence, construed in the light most favorable to the plaintiff, is as follows. The snow began to fall shortly before 5 a.m.; by 6 a.m., the Hamden schools had been closed, and at 6 a.m. the public works crews were called in to begin sanding and plowing. The town of Hamden is responsible for the care and maintenance of approximately 220 miles of roads, not including sidewalks. The temperature range for the day was between thirty-one and forty-two degrees fahrenheit. The accident occurred sometime between 6:15 a.m., when the plaintiff left for work, and 6:27 a.m., when the responding police officer received a call from dispatch concerning the accident. The snow continued to fall until about noon, and the total accumulation for the day was approximately two and one-half inches. The plaintiff did not testify that the hill in fact looked icy, but testified only that it felt slippery when she was driving.

Given the facts and circumstances of this case, we cannot conclude that the trial court abused its discretion in concluding that there was insufficient evidence to support the jury’s verdict for the plaintiff. Even if we could conclude that the trial court abused its discretion in finding that the town did not have notice of the defect, we cannot say that the trial court abused its discretion in concluding that the town did not have sufficient opportunity to take reasonable steps to remedy the defect. A finding of constructive notice of the alleged icy and slippery road, based on the duty of general supervision and inspection, would be unreasonable in view of the relatively short time that the condition existed and the extent of the problem facing the town of Hamden, with its many miles of roads and sidewalks. See, e.g., Ward v. Hartford, supra, 696. Moreover, even if such a finding is warranted, it would nevertheless be unreasonable to find that the town had sufficient time to take reasonable steps to remedy the defect, steps beyond those that the town had already taken. The fact that the Hamden schools had been closed does nothing to support the plaintiffs case on the issue of notice, because it does not prove that the town had knowledge of the alleged icy condition on Ben-ham Street.

“It is not the duty of a municipality to keep its highways reasonably safe for public travel under all circumstances, nor to use all possible means to bring that result about; rather its duty is to make such efforts and employ such measures to that end as, in view of all the existing circumstances and conditions, are in themselves reasonable.” Cusick v. New Haven, 148 Conn. 548, 551, 172 A.2d 905 (1961).

We conclude, therefore, that the trial court did not abuse its discretion in setting aside the verdict in this case.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 13a-149 provides: “Any person injured in person or property by means of a defective road or bridge may recover damages from the party bound to keep it in repair. No action for any such injury sustained on or after October 1,1982, shall be brought except within two years from the date of such injury. No action for any such injury shall be maintained against any town, city, corporation or borough, unless written notice of such injury and a general description of the same, and of the cause thereof and of the time and place of its occurrence, shall, within ninety days thereafter be given to a selectman or the clerk of such town, or to the clerk of such city or borough, or to the secretary or treasurer of such corporation. If the injury has been caused by a structure legally placed on such road by a railroad company, it, and not the party bound to keep the road in repair, shall be liable therefor. No notice given under the provisions of this section shall be held invalid or insufficient by reason of an inaccuracy in describing the injury or in stating the time, place or cause of its occurrence, if it appears that there was no intention to mislead or that such town, city, corporation or borough was not in fact misled thereby.”

       We are compelled to note, however, that a thorough examination of the record reveals nothing that would support this conclusion by the trial court, nor was the issue ever raised by the defendant during the course of the trial.

       We recognize that the methods for the removal of snow and ice have been greatly improved since 1948. They have not, however, been improved to the extent that such removal can occur without some delay between its accumulation and subsequent removal.