author: Borden, J.

text:
    State of Connecticut v. Richard S. Levine
    (2736)
    Dupont, C. J., Hull and Bobden, Js.
    Argued June 4
    decision released September 10, 1985

      Raymond T. Connor, for the appellant (defendant).

      JohnM. Massameno, assistant state’s attorney, with whom, on the brief, were Walter D. Flanagan, state’s attorney, Brian E. Cotter, assistant state’s attorney, and Judith Rossi, special assistant state’s attorney, for the appellee (state).
   Borden, J.

The defendant appeals from the judgment of his conviction of the crimes of possession of narcotics with intent to sell, in violation of General Statutes (Rev. to 1981) § .19-480 (a), now General Statutes § 21a-277 (a), and possession of marihuana, in violation of General Statutes (Rev. to 1981) § 19-480 (b), now General Statutes § 21a-277 (b). The conviction followed his conditional plea of nolo contendere which was entered, pursuant to General Statutes § 54-94a, after the trial court denied his motion to suppress evidence gathered pursuant to judicially authorized wiretaps, and his motion to dismiss. He claims essentially three grounds of error: (1) the wiretap orders were facially invalid; (2) the affidavit supporting the application for the wiretaps was insufficient; and (3) the state failed to meet the statutory minimization requirement. We find no error.

In May, 1982, a three judge panel, acting pursuant to General Statutes § 54-41d, issued orders authorizing three wiretaps. The first order authorized the interception of wire communications of the defendant over his telephone, located at his residence in Danbury. The second authorized the interception of wire communications of Thomas T. Ramsdell III, of the defendant and of other unknown persons, over Ramsdell’s telephone located at his residence in Hawleyville. The third authorized an extension of the second. The results of these interceptions led to the defendant’s conviction.

I

Facial Validity of the Wiretap Orders

The defendant argues that the orders of the panel were facially invalid because (1) the orders made certain statutorily required findings of probable cause in the alternative, and (2) the orders did not sufficiently limit the scope of the authorized wire interceptions. We disagree.

General Statutes § 54-41d (4) requires the panel to find probable cause to believe that “other normal investigative procedures with respect to the offense have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous to employ . . . .” The orders of the panel, which were based on the affidavit supporting the application, tracked this statutory requirement verbatim.

At this point, the defendant does not challenge the factual basis of any of the alternative findings. His argument is simply that a finding in the alternative is the equivalent of no finding, a proposition for which he offers no authority other than assertion. This argument is patently without merit. See State v. Blyden, 165 Conn. 522, 527, 338 A.2d 484 (1973).

The defendant’s second basis for his claim of facial invalidity is equally bereft of merit. The orders required that the interceptions “shall terminate upon attainment of the authorized objective ... or in any event within 10 days next succeeding the date of the issuance of this order.” This limitation was taken verbatim from General Statutes (Rev. to 1981) § 54-41e. It is clear from reading the order, together with the application and its underlying affidavit, that the authorized objective of the interceptions was to gain evidence of the defendant’s involvement in the sale of narcotics, including his major role as a participant in an extensive drug trafficking ring. The order gave sufficient guidance to the police officers executing it as to its scope and length, and whatever leeway they had was cut off in any event by the statutorily required ten day limit. See United States v. Tortorello, 480 F.2d 764, 780 (2d Cir.), cert. denied, 414 U.S. 866, 94 S. Ct. 63, 38 L. Ed. 2d 86 (1973).

II

Probable Cause for the Order

The defendant also claims that the affidavit supporting the first application, on the basis of which the first order was issued, was insufficient. Engaging in a hypercritical dissection of the affidavit, he argues that it fails to meet either statutory or constitutional requirements of probable cause. We disagree.

Our wiretap statutes require, for the issuance of a wiretap order, probable cause as to nine separate criteria stated in General Statutes § 54-41d, based on an application and supporting affidavit containing the information stated in General Statutes § 54-41c. State v. Ross, 194 Conn. 447, 460, 481 A.2d 730 (1984). These statutes are more restrictive than federal constitutional standards, and incorporate the formerly constitutionally required two-pronged test of Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969). State v. Ross, supra, 463. Since our statutes are more restrictive in their probable cause standard than the constitution; cf. Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983) (probable cause is to be measured, not by Aguilar-Spinelli test, but by totality of circumstances); we need only determine whether the application and affidavit in this case passed our statutorily required Aguilar-Spinelli test.

That test requires that probable cause be established by “[allegations of facts . . . based either upon the personal knowledge of the applicant or upon information and belief. If the applicant personally knows the facts alleged, it must be so stated. If the facts . . . are derived in whole or in part from the statements of persons other than the applicant, the sources of such information and belief shall be either disclosed or described, and the application shall contain facts establishing the existence and reliability of the informant, or the reliability of the information supplied by him. The application shall also state the basis of the informant’s knowledge or belief.” General Statutes § 54-41c. We conclude that this application passes muster.

The application was supported by the affidavit of State Trooper Donald A. Taylor which included the following: Taylor has eight and one-half years of police experience in narcotics and wiretapping investigations. During that period he has worked exclusively in the field of narcotics law enforcement, participating in numerous wiretapping investigations and searches and seizures. He has attended training schools in narcotics investigation, and in search and seizure, has worked in an undercover capacity, has regularly used the services of informants, and is familiar with the methods and practices of narcotics violators and the deceptions and codes used by them to avoid detection.

Taylor has learned through his own investigation and that of fellow officers that the defendant is engaged in the sale of narcotics using his telephone located on the second floor of 58 Lincoln Avenue, Danbury, which the defendant occupies with a female named Lois. That location is a two family house, of beige colored stucco with brown trim. Telephone company records indicate that the phone subscribed to the defendant at the location is nonpublished. Within ten days before the affidavit, Taylor met with a confidential informant who is an admitted user of narcotics, including cocaine. The informant told Taylor that he knows through personal knowledge that the defendant is a major cocaine dealer in the Danbury area. The informant has known the defendant for more than four years and has bought cocaine from him numerous times at the defendant’s apartment.

The information also related the following regarding the defendant: The informant describes the defendant as being a white male, five foot eight inches tall, weighing 190 pounds, of chunky build, with blondish red hair and a mustache. The defendant lives on Lincoln Avenue, on the second floor of a two story house, described as light colored stucco with brown trim. The informant described with particularity the entrance to and layout of the defendant’s apartment. A female known as Lois, who is about six feet tall with long blonde hair and blue eyes, lives with the defendant. The informant knows her to be a narcotics user. The defendant owns and operates an older model green Chrysler Imperial automobile.

Within two weeks prior to the date of the affidavit, the informant was at the defendant’s apartment and saw about one half pound of cocaine on a wooden coffee table in the living room, along with an O’Haus scale, baggies, other packaging materials and a cutting agent. Within three days after that, the defendant had sold the one-half pound of cocaine and had ordered a larger quantity from a source to replenish his supply.

Through conversations with the defendant, the informant learned that the defendant’s major source of supply is a male named Tom, who lives in Newtown, and who is the major distributor of cocaine in the western part of the state. The informant would not be able to purchase any drugs from Tom or learn anything else about his operation. The informant also told Taylor that the defendant has other sources of supply as well.

The informant states that he has on various occasions called the defendant at the defendant’s phone in his apartment, giving the phone number already known to Taylor as the defendant’s, and engaged in narcotics related conversations. He has also been present when the defendant has used that phone to further his participation in narcotics trafficking.

The informant then directed Taylor to the defendant’s residence. This residence matched the description already known to Taylor and previously given by the informant. Its address matched that known to Taylor as the defendant’s.

Taylor then independently corroborated many of the facts given to him by the informant. These are as follows: The telephone company corroborated the phone number given to Taylor by the informant as subscribed to the defendant at 58 Lincoln Avenue, Danbury, second floor. The motor vehicle department corroborated that a 1968 green Chrysler Imperial was registered to the defendant, and his date of birth on his driver’s license indicated an age of almost thirty-one. The post office corroborated that the defendant and Eloise McKee were receiving mail at 58 Lincoln Avenue, second floor. A surveillance of the defendant, carried out by members of the statewide narcotics task force (SNTF) three days prior to the affidavit and reported to Taylor, corroborated that the same green Chrysler Imperial registered to the defendant was operated by a white male with light colored hair and chunky build.

Within several days after Taylor met with the informant, Detective John Merullo of SNTF met with the informant and reported the following to Taylor: Merullo observed the informant call the defendant’s telephone number and monitored the conversation between, first, the informant and a female named Lois and, then, between the informant and a male identified in the conversation and by the informant as the defendant. The informant ordered a quantity of cocaine from the defendant, who told him to come to his house and to watch out for cops. Merullo, after searching the informant and ascertaining that he was free of narcotics and after giving him SNTF funds to purchase the cocaine, watched as the informant entered 58 Lincoln Avenue. The defendant’s car was parked at the house. A short time later the informant left the house, met immediately with Merullo, and turned over to him a package of white powder which he told Merullo he had purchased from the defendant and which the defendant represented to be cocaine. Merullo conducted a field test on the powder, which was positive for cocaine.

Taylor also states the following in his affidavit: He believes that the defendant plays a major role in a drug trafficking ring, using his telephone, but that information about other suppliers and the distribution system is unavailable. Due to the continuous nature of such an operation, extensive arrangements are made to replenish supplies, which require discussions of price, availability and delivery. This, in turn, requires continued monitoring beyond the first call intercepted. It is highly unlikely that a search and seizure, or an arrest, would be successful in identifying the others involved in the distribution system, its full scope would not be disclosed and such a seizure and arrest would cause the others involved to change their mode of operation. The objective of the wiretaps sought is to identify the defendant’s source of supply, and to obtain information regarding the system of distribution of narcotics of which the defendant is a part.

Taylor’s affidavit continued: The location of the defendant’s house, in an area of closely set two and three family dwellings, would make continued visual surveillance unsuccessful, because the surveillance team would have to be close to the entrance to the defendant’s house. This would leave the team in the defendant’s clear view, would arouse his suspicions and would jeopardize the investigation. The Danbury police department has advised Taylor that the area is known to be highly concentrated with drug users and sellers, who watch for police activity and would probably alert the defendant.

The informant is not willing to testify in court about the defendant, has no other information about the defendant’s operation, cannot provide direct information about his distribution activities, and has been unable to identify the defendant’s source of supply even though he has known the defendant for a long period of time. Thus it is highly improbable that an undercover agent could gain the defendant’s confidence in order to accomplish the same objective.

It is not necessary to go through the affidavit item by item and relate these items to the statutory AguilarSpinelli test. Suffice it to say that those facts personally known by Taylor were so stated. The sources of other facts were clearly disclosed and described. The existence of the informant, and the reliability of the information supplied by him were also sufficiently established, as was the basis of his knowledge or belief. With regard to the informant’s information, and the basis of his knowledge or belief, we point particularly to the wealth of detail supplied by him, the independent corroboration of much of that detail, his penal admissions, and the controlled use of the defendant’s telephone number to set up the controlled narcotics purchase from the defendant. In sum, this affidavit is a far cry from the largely uncorroborated and conclusory affidavit found wanting in State v. Ross, supra, and clearly established the requisite probable cause under the statute.

Ill

Minimization

This leaves for analysis the defendant’s principal claim, namely, that the officers executing the orders violated the minimization mandate of the statute and of the orders, and that total suppression of all the intercepted conversations was required. General Statutes § 54-41e; see State v. Thompson, 191 Conn. 360, 464 A.2d 799 (1983), cert. denied, 465 U.S. 1006, 104 S. Ct. 999, 79 L. Ed. 2d 231 (1984). We disagree.

We find it unnecessary, in order to decide this claim, to evaluate the specific degree of minimization effected in this case and to decide whether it was sufficient. This is because, even if we assume arguendo that the state did not meet the minimization requirement, (1) the state unequivocally attempted minimization, (2) therefore, only partial suppression was the proper remedy, and (3) the defendant, relying entirely on a claim of total suppression, did not meet his burden of establishing which specific conversations should be suppressed.

“ ‘The term minimization is a shorthand expression which represents the government’s obligation to reduce to the extent possible interceptions of conversations which are not the subject of the court order. ’ (Emphasis added.)” State v. Thompson, supra, 375. The defendant conceded, at oral argument in this court, as he must, that State v. Thompson, supra, decided that “while partial suppression is the proper remedy when minimization is attempted but fails, total suppression is necessary when the violation results from a complete disregard of the minimization requirement.” Id., 381.

The defendant does not argue that the state did not attempt minimization. He specifically conceded in his brief that the state established procedures to minimize interception of nonpertinent conversations. The record is replete with evidence of the state’s efforts. Two of the wiretaps terminated before their authorized periods, which is solid evidence of an attempt to minimize. See id., 372 n.10. The officers supervising the wiretapping daily reviewed the monitors’ logs, required the monitors to explain their pertinency determinations, and reminded them of their minimization obligation. The monitors testified to the supervision and its effect on their pertinency determinations. The supervisors kept the monitors informed of the status of the investigation and the information obtained as a result of the interceptions. The supervisors daily kept the state’s attorney informed by direct communication or by review of the monitors’ logs. Unlike the situation in State v. Thompson, supra, 366, in which there was “indiscriminate listening to all communications,” and in which the state did not present a pertinency analysis of a great majority of the calls monitored; id., 374; here the state made and introduced a pertinency analysis.

Even if we assume without deciding that the minimization was insufficient under State v. Thompson, supra, 381, partial rather than total suppression would have been the proper remedy because it is clear that the state attempted minimization. The defendant argues that given this posture of the case, the state, rather than he, had the burden of establishing which conversations should be suppressed. We hold, however, that under these circumstances the defendant had the burden of establishing the scope of the partial suppression, and that, because he made no effort to meet that burden, his claim must fail.

First, this allocation of burden is consistent with the procedure for determining minimization itself. At a suppression hearing the state has the initial “burden of making a prima facie showing of compliance with the minimization requirement. If the state [meets] its burden of demonstrating the impossibility of effecting further minimization, then the burden shift[s] to the defendant to demonstrate the state’s failure to minimize.” Id., 373; Fishman, Wiretapping and Eavesdropping § 284. Once the government has met its prima facie burden, the defendant has the burden of coming forward with evidence rebutting it and specifying those particular interceptions which challenge the government’s submission. United States v. Rizzo, 491 F.2d 215, 217-18 (2d Cir.), cert. denied, 416 U.S. 990, 94 S. Ct. 2399, 40 L. Ed. 2d 769 (1974); United States v. Napolitano, 552 F. Sup. 465, 476-77 (S.D.N.Y. 1982); United States v. Suquet, 547 F. Sup. 1034, 1045 (N.D.Ill. 1982).

Second, this allocation is consistent with the general procedure by which a defendant must challenge the admissibility of evidence seized pursuant to a search warrant. That procedure is that ordinarily he must, if reasonably possible, specify the particular evidence which he claims was seized beyond the scope of the warrant. United States v. Heldt, 668 F.2d 1238, 1258-59 (D.C. Cir. 1981), cert. denied sub nom. United States v. Hubbard, 456 U.S. 926, 102 S. Ct. 1971, 72 L. Ed. 2d 440 (1982); 3 LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 11.2.

Third, the contrary allocation urged by the defendant, namely, that the state has the burden to establish the scope of the partial suppression, would be unfair to the state and largely unworkable. It would require the state, having put on its evidence to meet its burden of minimization; see State v. Thompson, supra; then to assume that it failed to meet that burden and to attempt to set out a hypothetical framework for partial suppression. We see nothing in the wiretap statutes, wiretap law generally, policy or reason to create such an awkward procedure.

Here, the defendant rested all his hopes on the remedy of total suppression. He made no effort to meet his reasonably imposed burden of presenting a basis for partial suppression. Since there was no basis on which to grant a partial suppression, the court was correct in denying his motion to suppress.

There is no error.

In this opinion the other judges concurred.

       Ramsdell was a codefendant in the trial court. His case is not involved in this appeal.

       In 1982, the ten day period was amended to fifteen days. See General Statutes (Rev. to 1983) § 54-41e.


source: Caselaw Access Project

license: Public Domain

text:
    Plastic Distributors, Inc. v. J. William Burns, Commissioner of Transportation
    (3338)
    Borden, Spallone and Daly, Js.
    Argued June 7
    decision released September 10, 1985

      Jeffrey M. Sachs, for the appellant (plaintiff).

      Kathryn Mobley, assistant attorney general, with whom, on the brief, was Joseph I. Lieberman, attorney general, for the appellee (defendant).
   Borden, J.

This is an appeal from the judgment of the trial court dismissing the plaintiff’s petition for review of the decision of the defendant commissioner of transportation. The commissioner’s decision had denied the plaintiff certain payments which the plaintiff had claimed under the Uniform Relocation Assistance Act (URAA). General Statutes §§ 8-266 through 8-282.

The administrative record, as reviewed by the trial court, revealed the following facts: The plaintiff was a wholesale distributor of household items. It conducted its business from a site in Hartford and had two feeder warehouses. The defendant instituted eminent domain proceedings against the Hartford site in connection with a highway project, forcing the plaintiff to relocate to a new facility in East Windsor. At the time of the move, the plaintiff’s inventory, consisting of thousands of items, was contained in over 200,000 separate corrugated cartons. Various other property, such as desks, chairs, typewriters and other business machines, also had to be relocated.

The plaintiff’s business, which involved the acceptance of goods from manufacturers, the storage of those goods, the assembling of orders and the delivery of ordered goods, required that the goods be organized in a certain way so that the plaintiffs employees could readily find them.

When it relocated to the East Windsor facility, the plaintiff consolidated all three of its warehouses into one. It also installed a new computer system and reorganized its inventory. The plaintiff implemented the move itself so that its employees, who knew the operation of the business, could move the inventory. The move took place between April 14, 1980, and May 30, 1980, and the plaintiffs business was completely closed for business due to the move from May 9,1980, through May 30, 1980.

The plaintiff applied for reimbursement under the URAA; General Statutes § 8-268 (a); for moving expenses, including rental payments at the Hartford and the East Windsor sites for the entire six-week moving period, and payments for the utilities at both sites for the period from May 9,1980, through May 30,1980. The department paid some of the claimed expenses but denied others, including the claim for the rent and utilities which is at issue here. The plaintiff appealed the denial of those claims to the relocation advisory appeals board. The board allowed payment for some of the claims, but agreed with the denial of others, including the rent and utility expenses. The decision of the appeals board was adopted by the commissioner of transportation.

The plaintiff thereupon appealed to the court, which determined that the basis of “the decision of the Appeals Board . . . concerning the utility and rental expenses was vague, ambiguous and confusing,” and remanded the action to the appeals board for clarification. After a hearing, the appeals board issued a “Response to Order for Remand,” adopted by the commissioner, which stated summarily that the claim for reimbursement of the rental and utility expenses was denied. It cited § 8-273-11 (a) of the agency’s regulations, which excludes reimbursement for additional living expenses incurred due to moving to a new location, as the basis of its denial.

The plaintiff again appealed to the court. This appeal involved only the claim for the rent and utility expenses, which the parties stipulated were in the amounts of $20,000 and $3556, respectively. The court upheld the decision of the commissioner and the appeals board on the basis that the claimed expenses were living expenses under § 8-273-11 (a) of the regulations and were, therefore, not reimbursable. The court also offered two alternative bases on which the claims could have been denied, although neither basis was mentioned in either of the board’s decisions. The court stated that the record showed that these expenses were related to improvements made to the East Windsor site and to modifications to property moved to that site, both of which are excluded from reimbursement under the agency’s regulations. Regs., Conn. State Agencies § 8-273-11 (c), (j).

On appeal to this court, the plaintiff essentially claims that the trial court erred (1) by affirming the board’s decision and by not holding that the claimed expenses were reimbursable as actual reasonable moving expenses under General Statutes § 8-268, and (2) by upholding the decision on alternative grounds not mentioned by the board in its decision. We find error.

We treat initially the claim of error that the trial court erred by addressing alternative grounds for upholding the appeal. The trial court was acting in an appellate posture when this case came before it. As such, the court was limited to the administrative record before it and could not try the case de novo. Connecticut Natural Gas Corporation v. PUCA, 183 Conn. 128, 133-34, 439 A.2d 282 (1981); Pelletier v. White, 33 Conn. Sup. 769, 770, 371 A.2d 1068 (1976). The two alternative grounds found by the trial court to uphold the decision were § 8-273-11 (c) and § 8-273-11 (j) of the regulations. These regulations exclude reimbursement for the costs of improvements to the replacement site and modification of personal property to adapt it to the replacement site, respectively. Both were alluded to at the administrative hearings but neither the original decision by the board nor the decision currently being appealed mentions these exclusions. The board clearly did not rely on these exclusions when it denied the plaintiff’s claim and the court’s reliance on them is improper. The court, in effect, adjudicated facts and issues on its own and therefore, “engagefd] in surmise and conjecture” to uphold the decision. Lee v. Board of Education, 181 Conn. 69, 82, 434 A.2d 333 (1980); see Kaplan v. Administrator, 4 Conn. App. 152, 493 A.2d 248 (1985).

Moreover, we note that the plaintiff excised from its claim the expenditures it made for improvements to the replacement site and for modifications which it deemed necessary to make its equipment efficient in the replacement building. There was no showing that there was any connection between the expenses claimed and the expenditures for improvements and modifications. The use of these exclusions as additional justifications for denying the plaintiff’s claims, therefore, was misplaced.

Turning now to the plaintiff’s principal claim, namely, that the court erred by not finding the rent and utilities reimbursable as actual reasonable moving expenses under the URAA, we first address the issue of our scope of review. The plaintiff circumscribes our scope of review to that of determining whether the board’s decision was arbitrary, capricious or characterized by an abuse of discretion, or whether the decision was clearly erroneous in view of the reliable, probative and substantial evidence on the whole record. See General Statutes § 4-183 (g) (5), (6). The defendant seemingly concurs in this enunciation of our scope of review in its brief.

The parties are correct in grounding our scope of review on the provisions of General Statutes § 4-183 of the Uniform Administrative Procedure Act (UAPA), under which judicial review of the commissioner’s decision is authorized. That act, however, provides four other bases on which a reviewing court may reverse or modify an agency decision. General Statutes § 4-183 (g). Those bases include reviewing the agency’s decision to see if it is in violation of statutory provisions, in excess of the statutory authority of the agency or affected by other error of law. General Statutes § 4-183 (g) (1), (2), (4). Although we recognize that “ ‘the factual and discretionary determinations of administrative agencies are to be given considerable weight by the courts . . . it is for the courts, and not for administrative agencies, to expound and apply governing principles of law.’ ” (Citations omitted.) Wilson v. Freedom of Information Commission, 181 Conn. 324, 342-43, 435 A.2d 353 (1980). We, therefore, consider our scope of review to be broader than enunciated by the parties and to encompass a review of the legal questions involved.

The question of whether a particular statute or regulation applies to a given state of facts is a question of statutory interpretation, which, upon review under the UAPA, ordinarily presents a question of law. See Connecticut Life & Health Ins. Guaranty Assn. v. Jackson, 173 Conn. 352, 356-57, 377 A.2d 1099 (1977). Thus, whether General Statutes § 8-268 (a) or § 8-273-11 (a) of the regulations apply to these facts is a question of law. Our review of this question leads us to conclude that the commissioner, and the trial court in affirming the commissioner’s decision, made an error of law and exceeded the statutory provisions governing relocation assistance when they determined that the expenses claimed by the plaintiff were nonreimbursable living expenses.

“The power of an administrative agency to prescribe rules and regulations under a statute is not the power to make law, but only the power to adopt regulations to carry into effect the will of the legislature as expressed by the statute.” Salmon Brook Convalescent Home v. Commission on Hospitals & Health Care, 177 Conn. 356, 363, 417 A.2d 358 (1979). The department of transportation promulgated regulations pursuant to General Statutes § 8-273 (b) of the URAA, which permits regulations to be established “to assure . . . that the payments and assistance authorized by this chapter shall be administered in a manner which is fair and reasonable and as uniform as practicable.” Id. Regulations under this statute, however, must conform to the purpose of the act. Salmon Brook Convalescent Home v. Commission on Hospitals & Health Care, supra. That purpose, as described in General Statutes § 8-266, is “to establish a uniform policy for the fair and equitable treatment of persons displaced by the acquisition of real property by state and local land acquisition programs, by building code enforcement activities, or by a program of voluntary rehabilitation of buildings or other improvements conducted pursuant to governmental supervision.” The act was designed to compensate, within specified limits, those displaced by a state agency for the actual and reasonable costs of relocating. See General Statutes §§ 8-266, 8-268; see also Dukes v. Durante, 192 Conn. 207, 216, 471 A.2d 1368 (1984).

There is no dispute that the plaintiff was required to move due to displacement by a state agency. The circumstances of this case, given the type and extent of the inventory and the need to move it in an organized fashion, however, required that the plaintiffs move from the taken site be done in an unusual manner. “[W]e note that the phrase ‘moving expenses’ need not be given any unreasonably broad interpretation to encompass, under proper circumstances and a showing of necessity, reasonably required extra lease expenses.” Rotter v. Milwaukee County Expressway & Transportation Commission, 72 Wis. 2d 553, 561, 241 N.W.2d 440 (1976). In this case, the reasonable and actual moving expenses included the rental payments for the six weeks the plaintiff needed to occupy the two sites and the utilities for the three weeks the plaintiff had to shut down business to implement fully the move between the two sites. While these expenses might be considered living expenses in another context, they were plainly incurred here solely due to the plaintiffs move which was imposed upon it by the defendant; the plaintiffs unusual needs did not transform them into living expenses. The terms and intent of the URAA, therefore, entitled the plaintiff to be reimbursed for the claimed expenses.

Furthermore, we do not believe that § 8-273-11 (a) of the regulations was intended to exclude the types of expenses at issue here. That regulation states that a displaced person is not entitled to payment for “additional expenses incurred because of living in a new location.” We construe this language, in its commonly approved usage; Citerella v. United Illuminating Co., 158 Conn. 600, 608, 266 A.2d 382 (1969); as embracing extra costs incurred due to a higher level of living in the area to which one has relocated, but not extending to the costs of moving to that area. This interpretation is reinforced by the use of the phrase “additional expenses” in § 8-273-11 (a) (emphasis added) and by § 8-273-13 (a) (2) of the regulations. Section 8-273-13 (a) (2) refers back to the exclusions of § 8-273-11 but provides that costs entitled to be paid to a displaced business include “actual reasonable expenses for . . . [pjacking, crating, and, if the agency concerned finds it necessary, storing his personal property for not more than six months . . . .”Theregu-lations, therefore, on their face, emphasize that moving expenses are to be reimbursed under the act, but living expenses beyond that are not.

The plaintiff’s claim seeks reimbursement only for the rent for the six weeks during which it was in the process of transferring goods from the Hartford facility to the East Windsor facility, and for the utilities for the three weeks during which it had to shut down business to accomplish the move. No claim was made here for increased rent or an increase in the average monthly utility bill. The plaintiff did not make a claim for the costs of modifying its equipment to the new property or of making needed improvements. In sum, no expenses incurred due to “living” in the new location were claimed, even if we equate “living” to doing business. The plaintiffs only claimed expenses incurred incident to the move which they were required to make.

Although the commissioner was given broad authority to establish regulations to implement the URAA; General Statutes § 8-273; the regulations cannot be given a tortured construction which would prevent the plaintiff from being reimbursed for these expenses, and which would contravene the purposes of the act. See Roy v. Centennial Ins. Co., 171 Conn. 463, 476, 370 A.2d 1011 (1976). The regulations, like the statute, must be construed with common sense and to reach a rational result. Citerella v. United Illuminating Co., supra, 609. The defendant’s construction would render without meaning in this case the statutory mandate of paying a displaced person for actual reasonable moving expenses and would give too broad a scope to the living expenses exclusion of § 8-273-11 (a) of the regulations. We conclude, therefore, on the basis of the history and purpose of the URAA as well as the terms of the regulation in question, that the plaintiff was entitled to be reimbursed for the claimed expenses.

Although in some circumstances we grant deference to an agency’s interpretation of its own regulations; Roy v. Centennial Ins. Co., supra, 473; the deference which we give to the board’s decision in this case is limited. First, as previously mentioned, the agency’s interpretation of the regulation runs contrary to the purpose of the act under which it was promulgated.

Second, the reasons underlying our policy of granting deference to an agency’s interpretations of regulations are not present here. Where an agency has expertise in a given area and a history of determining factual and legal questions similar to those at issue, its interpretation is granted deference by the courts. See Anderson v. Ludgin, 175 Conn. 545, 555-56, 400 A.2d 712 (1978); New Haven v. United Illuminating Co., 168 Conn. 478, 493, 362 A.2d 785 (1975); Breen v. Department of Liquor Control, 2 Conn. App. 628, 634, 481 A.2d 755, cert. granted, 194 Conn. 808, 483 A.2d 1098 (1984). This case involves a novel and apparently unprecedented question of whether rent and utilities at both the taken site and the replacement site are moving expenses reimbursable under the URAA where, due to the nature of its inventory, the claimant moves itself, requires six weeks to move during which rent and utilities are incurred at both sites and closes down its business for three of those six weeks solely to complete the move. There is no administrative history showing that this agency has determined this type of question under the regulation in issue here. It, therefore, has no special expertise in determining if that regulation applies to these facts. We therefore do not consider it inappropriate, in a case such as this, to limit our deference to the agency’s decision.

Nor do we find it inappropriate to construe the statutes and regulations in question here. In an appeal brought under the UAPA, a reviewing court sustaining an appeal usually remands the action to the agency for further action, unless there is no other course the agency may legally follow, in which case the court may direct the agency action to be taken on the remand. See General Statutes § 4-183 (g) (court may reverse or modify agency action if error of law made); see, e.g., Feinson v. Conservation Commission, 180 Conn. 421, 430, 429 A.2d 910 (1980). We conclude that this is such a case. Our review of the UR A A and the regulations promulgated under it indicates that, as a matter of law, the claimed expenses were not living expenses under § 8-273-11 (a) of the regulations, but were, rather, the type of moving expenses intended to be reimbursed under the act. The agency could not legally conclude otherwise. We therefore do not remand the case to the agency for further proceedings, but remand it with direction to pay the claimed expenses to which the parties have stipulated.

There is error, the judgment is set aside and the case is remanded with direction to render judgment in accordance with this opinion.

In this opinion the other judges concurred.

       General Statutes § 8-268 (a) provides in pertinent part: “Whenever a program or project undertaken by a state agency or under the supervision of a state agency will result in the displacement of any person on or after July 6,1971, the head of such state agency shall make payment to any displaced person, upon proper application as approved by such agency head, for (1) actual reasonable expenses in moving himself, his family, business, farm operation or other personal property; (2) actual direct losses of tangible personal property as a result of moving or discontinuing a business or farm operation, but not to exceed an amount equal to the reasonable expenses that would have been required to relocate such property, as determined by the state agency, and (3) actual reasonable expenses in searching for a replacement business or farm . . . .”

       Section 8-273-11 of the Regulations of Connecticut State Agencies provides in pertinent part: “A displaced person is not entitled to be paid for— (a) Additional expenses incurred because of living in a new location . . . .”

       General Statutes § 4-183 (g) provides: “The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) In violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error of law; (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.”

       It should be noted that no one argues that the move was done in an unreasonable manner.

       This regulation, for example, would exclude reimbursement for the difference between the higher rent in the replacement location, which in general has higher costs of living, and the lower rent in the taken location.

       Because the board did not specifically find that it was necessary for the plaintiff to store its inventory for the purposes of this move, we do not address this regulation as a basis for payment. We note, however, that it would be anomalous for a displaced person to be reimbursed for moving his personal property to a storage site and then to the replacement site under § 8-273-13 (a) (2), but for the plaintiff to be precluded from payment, as a living expense, for choosing not to expend money to transport its goods to a storage site but to “store” its goods at the taken site until they could be moved, in the proper order, to the replacement site.


author: Melville, J.

text:
    Jewel Carter v. Francis E. D’Urso et al.
    (3297)
    Dupont, C. J., Hull and Melville, Js.

      Argued May 10
    decision released September 17, 1985

      Peter A. Kelly, for the appellants (defendants).

      Michael A. Georgetti, for the appellee (plaintiff).
   Melville, J.

This appeal involves the trial court’s denial of the defendants’ motion to open a judgment of default for failure to appear rendered by the court. The plaintiff commenced an action against the defendants sounding in tort, alleging legal malpractice by the defendants in their failure to prosecute the plaintiff’s personal injury action with due diligence, resulting in a judgment of dismissal.

The plaintiff moved to have the defendants defaulted for their failure to appear. That motion was granted on December 22,1983. Thereafter, the plaintiff claimed the present action for a hearing in damages. A hearing in damages was held on March 20,1984. The trial court rendered a default judgment on March 22, 1984 against the defendants for $35,000. A motion to open and set aside the judgment by default for failure to appear was filed on April 9,1984, within three weeks of the entry of the default judgment. A hearing on the motion was held on April 23, 1984. The trial court denied the motion on May 16, 1984. The defendants thereafter appealed to this court.

The trial court refused to open and set aside the default judgment because of the defendants’ failure to timely comply with General Statutes § 52-212 and Practice Book § 377* in that the motion as submitted was not verified nor did it reveal the defendants’ defense to the action. The defendants claim that the trial court erred in denying the motion to open and set aside the default judgment because, although they did not literally comply with the statute and the practice book rule, they substantially complied with both provisions by their submission of necessary materials later.

The defendants’ motion, although not verified, noted that an affidavit was filed which was incorporated by reference into the motion. The defendant James Ferguson filed an affidavit on the day of the hearing while the other defendant, Francis D’Urso, filed an affidavit with the submission of his memorandum of law on the motion. Both defendants, the only witnesses, also testified at the hearing on the motion. The defendant Ferguson testified that he had received nothing with regard to this lawsuit after being served with process. The affidavit and testimony of the defendant D’Urso indicates that he had no notice of the default and the hearing in damages.

The question is whether the trial court abused its discretion in refusing to open and set aside the default judgment because of the defendants’ failure to submit an affidavit, disclosing the reasonable cause claimed and in general terms the nature of their defense to the action, with the motion to open the judgment, although such affidavits were presented along with the defendants’ testimony prior to the court’s decision. Costello v. Hartford Institute of Accounting, Inc., 193 Conn. 160, 166-67, 475 A.2d 310 (1984). Under the circumstances, this court finds that the trial court abused its discretion in refusing to open the default judgment.

The trial court and the plaintiff’s reliance on Lynch v. Imported Cars of Greenwich, Inc., 37 Conn. Sup. 676, 435 A.2d 46 (1981) is misplaced. In that case, prior to the trial court’s decision, no verified motion or affidavit indicating the nature of the defendant’s defense was filed. Here, the trial court, prior to its decision, had received affidavits from both defendants which in general terms indicated the nature of the defense to the action.

What constitutes the timely presentation of evidence in a motion to open a judgment of default was considered in Costello v. Hartford Institute of Accounting, Inc., supra, 168. An affidavit on the nature of the defendant’s defense submitted after the trial court’s decision, was held to be untimely and, therefore, the court declined to consider the validity of the defense. Id. The motion to open judgment there was filed with an accompanying affidavit by counsel. At the hearing, the defendant submitted an affidavit and the parties submitted briefs on the motion at which time the plaintiff and his counsel filed affidavits. The court considered the information contained in those affidavits in deciding whether the trial court abused its discretion. By implication, information submitted within that time frame should be considered by the court where the four month limitation is not involved.

A literal reading of Practice Book § 377 and General Statutes § 52-212 indicates that if affidavits are filed instead of a verified motion they should accompany the motion. The statute and the practice book rule are remedial. Eastern Elevator Co. v. Scalzi, 193 Conn. 128, 134, 474 A.2d 456 (1984). Practice Book § 6 provides for a liberal interpretation of the rules “where it shall be manifest that a strict adherence to them will work surprise or injustice.” The defendants were well within the four month period when the trial court received the affidavits and heard the testimony. Under these circumstances, the trial court could not reasonably deny the motion because of a procedural deficiency which had been cured prior to its decision.

The uncontradicted testimony and the related affidavits revealed that the defendants did not have notice of the entry of the default or the hearing in damages subsequently held. The safeguards against an erroneous default judgment available to a defendant were vitiated here because of the lack of notice. Milgrim v. Deluca, 195 Conn. 191, 197-98, 487 A.2d 522 (1985). The lack of notice satisfied the prong of the test requiring that the party moving to set aside the judgment was prevented from making that defense because of reasonable cause. Steve Viglione Sheet Metal Co. v. Sakonchick, 190 Conn. 707, 711-12, 462 A.2d 1037 (1983).

The affidavits submitted and the testimony presented at the hearing disclosed that a good defense to the action existed when the judgment was rendered. The defendant DTJrso testified that the plaintiff could have refiled her action after the dismissal since the statute of limitations had not expired, and he so informed her. The claim, unrebutted at the hearing, was that the defendants’ actions were not the proximate cause of the plaintiff’s loss of her cause of action. The affidavits submitted by the defendants and their testimony satisfied the requirements of General Statutes § 52-212 and Practice Book § 377. The trial court on this record, therefore, abused its discretion in refusing to open and set aside the default judgment.

There is error, the judgment is set aside and the case is remanded for further proceedings not inconsistent with this opinion.

In this opinion the other judges concurred:

       The motion was as follows: “motion to set aside default judgment Pursuant to Section 377 of the Practice Book, defendants hereby move the court to open and set aside the default judgment rendered in this action on March 20, 1984.
      The grounds for this motion are that the defendants have a good defense in whole to this action, and that they were prevented by mistake, accident or other reasonable cause from appearing to make the same, as set forth more fully in the affidavit attached to this motion as Exhibit A. (To be filed.)
      DEFENDANT, FRANCIS E. D’URSO, ET AL.”

       Practice Book § 6 provides: “The design of these rules being to facilitate business and advance justice, they will be interpreted liberally in any case where it shall be manifest that a strict adherence to them will work surprise or injustice.”


text:
    Donald Bowman v. Kaye Williams et al.
    (3519)
    Dupont, C. J., Hull and Melville, Js.

      Argued May 10
    decision released September 17, 1985

      David O. Chittick, for the appellants (defendants).

      Robert H. Boynton, with whom was Susan A. Moch, for the appellee (plaintiff).
   Melville, J.

This action was brought pursuant to the forcible entry and detainer statute, General Statutes § 47&-43, to the Housing Session of the Superior Court in the judicial district of Fairfield, where it was tried to the court. Judgment was rendered for the plaintiff, from which the defendants appeal.

The named defendant, Kaye Williams, is the president of Marina Corporation which operates the defendant Captain’s Cove Marina of Bridgeport, Inc. The defendants claim that the Marina Corporation holds the lease to the marina property, which is owned by the city of Bridgeport. Prior to November, 1983, the plaintiff leased a boat slip from the defendants for the purpose of conducting a boat chartering service. In November of 1983, the plaintiff leased office and storage space for other business purposes from the defendants in an ice house, and made extensive interior renovations thereto. Sometime prior to July 15,1984, the parties met on several occasions to discuss plans for the plaintiff to relocate his office to smaller quarters in another part of the marina. This relocation was apparently necessitated by the plaintiff’s difficulty in making timely rental payments on the demised premises.

On July 14, Williams became outraged over an incident at the marina involving damage to a boat caused by some boating guests of the plaintiff. On the following day, Williams, along with his family and several other persons, entered the plaintiff’s offices and were in the process of removing the plaintiff’s belongings when the plaintiff arrived and called the police. The police instructed Williams to replace the plaintiff’s belongings. This order was complied with initially. The plaintiff’s belongings, however, were later removed and the plaintiff was not permitted to re-enter the demised premises, or allowed to retrieve his belongings. Two days later, the plaintiff removed his boat from its slip at the marina for the purpose of going on a sailing trip. Upon his return, the plaintiff discovered that Williams had placed a floating dock in the plaintiffs boat slip in order to prevent the plaintiff from storing his boat there.

It should be noted that Marina Corporation, which the defendants claim is the leaseholder from the city of Bridgeport, was never served with a writ, summons and complaint in this action, nor was it joined as a party by either the plaintiff or the defendants.

We do not reach the defendants’ claim that the corporation was a necessary or an indispensable party, because the defendants never moved to strike the plaintiff’s complaint because of nonjoinder of parties. Practice Book § 198; George v. St. Ann’s Church, 182 Conn. 322, 325-26, 438 A.2d 97 (1980).

The defendants also claim that the trial court erred in finding that the plaintiff proved by a preponderance of the evidence that the defendants “having made a peaceful entry, without the consent of the actual possessor, holds and detains the same with force and strong hand.” General Statutes § 47a-43. The defendants argue that Williams had the plaintiff’s consent to enter the premises because the plaintiff voluntarily relinquished possession of the premises to him. Conflicting testimony was presented at trial as to whether the parties reached an agreement providing that the plaintiff would move to a smaller location at the marina. Once again, this court is compelled to state, what has become a tired refrain, we do not retry the facts or evaluate the credibility of witnesses. East Haddam Fishing & Game Club, Inc. v. Ciucias, 4 Conn. App. 214, 215, 493 A.2d 281 (1985). Fukelman v. Middletown, 4 Conn. App. 30, 31, 492 A.2d 214 (1985); MacArthur/Nathan Associates v. Edson Realty, Inc., 3 Conn. App. 675, 676, 491 A.2d 1111 (1985); American Frozen Foods, Inc. v. International Brotherhood of Teamsters, 3 Conn. App. 300, 302, 487 A.2d 570 (1985). Our limited review of this claim discloses that the trial court’s conclusion was legally correct and factually supported.

Lastly, the defendants’ claim that the trial court erred in finding that the boat slip rented by the plaintiff falls within the ambit of General Statutes § 47a-43. Particularly, the defendants’ claim that the trial court erred in holding that the use of the boat slip was an appurtenance of the premises rented to the plaintiff. We agree.

The trial court adopted an expansive definition of tenement as that word is used in the forcible entry and detainer statute. The trial court, quoting Ballentine’s Law Dictionary held that “tenement” included “ ‘everything which may be holden, provided it be of a permanent nature’ and ‘inclusive of any incorporeal hereditament which issues out of corporeal property or which is annexed thereto.’ ” Even if we assume without deciding that the trial court’s definition of tenement is correct, the boat slip in question would not be appurtenant to the real property leased by the plaintiff. The concept of appurtenant in the context of property law “does not require that something be annexed, joined, or attached to be appurtenant. Waterbury Lumber & Coal Co. v. Asterchinsky, 87 Conn. 316, 320, 87 A. 739 [1913]; see Graham v. Walker, 78 Conn. 130, 61 A. 98 [1905]. The term denotes a connection between two objects such that one is incident to the other.” Algonquin Gas Transmission Co. v. Zoning Board of Appeals, 162 Conn. 50, 58, 291 A.2d 204 (1971). Certain facts are relevant to this issue. The plaintiff rented the boat slip for the purpose of conducting a boat chartering service prior to leasing the office space which was rented to run a marine brokerage business. Since the boat slip did not pass as an incident to the office space, nor does it appear that it was essential to or reasonably necessary to the full beneficial use and enjoyment of the office and storage space, it cannot be deemed an appurtenance of the office. Graham v. Walker, supra, 135-36; 23 Am. Jur. 2d, Deeds § 65.

The plaintiff at oral argument interjected the theory of wharfing out as an alternative grounds on which the trial court’s judgment could be affirmed. This issue was not raised in a preliminary statement of issues filed by the plaintiff presenting alternative grounds on which the judgment may be affirmed, nor was the issue briefed by the plaintiff. This claim, therefore, is not properly before the court. Practice Book §§ 3012 and 3060G (e).

There is error in part, the judgment restoring to the plaintiff the possession of the boat slip is set aside and the case is remanded with direction to render judgment for the defendants in accordance with this opinion.

In this opinion the other judges concurred.

       “[General Statutes] Sec. 47a-43. (Formerly Sec. 52-462). complaint and procedure: forcible entry and detainer; entry and detainer. (a) When any person (1) makes forcible entry into any land, tenement or dwelling unit and with a strong hand detains the same or (2) having made a peaceable entry, without the consent of the actual possessor, holds and detains the same with force and strong hand or (3) enters into any land, tenement or dwelling unit and causes damage to the premises or damage to or removal of or detention of the personal property of the possessor, or (4) when the party put out of possession would be required to cause damage to the premises or commit a breach of the peace in order to regain possession, the party thus ejected, held out of possession, or suffering damage may exhibit his complaint to any judge of the superior court.
      “(b) Such judge shall forthwith issue a summons to the party complained of, directed to some proper officer, to notify him to appear at a specified time and place, within eight days from the exhibition of such complaint, in the superior court for the judicial district wherein the injury complained of was done, to answer to the matters contained in the complaint.
      “(c) Such summons shall be served upon the party complained of six days inclusive before the day appointed for trial.
      “(d) If, after service of such summons, the party complained of does not appear and defend, the judge shall proceed in the same manner as if he were present.”

       There is nothing in the record to indicate that the lease was of the pier itself.


author: Spallone, J.

text:
    Stephen P. Cassidy, Jr. v. Peter Bonitatibus et al.
    (3121)
    Hull, Borden and Spallone, Js.
    Argued June 6
    decision released September 17, 1985

      Thomas L. Kanasky, Jr., for the appellant (plaintiff).

      Roy W. Moss, for the appellees (defendants).
   Spallone, J.

The plaintiff is appealing from a judgment rendered for the defendants in an action for damages resulting from the defendants’ alleged assumption of a mortgage.

The parties entered into a written agreement wherein the defendants agreed to buy certain real estate from the plaintiff for a total purchase price of $38,000. The agreement provided for a mortgage contingency of $28,000. Prior to the closing, the defendants informed the plaintiff that they could not obtain the desired financing, and further negotiations ensued. At the closing, the plaintiff delivered to the defendants a warranty deed which provided that the defendants would take the property “[sjubject to ... a prior mortgage as of record appears.” The deed did not contain express language obligating the defendants to become personally liable on this mortgage, which was in the amount of $23,022.17 and held by City Savings Bank (City Savings). The closing statement prepared by the attorney who represented both parties did, however, bear the notation “Assumption of Seller’s City Savings Bank Mortgage” next to the entry of $23,022.17.

During the period in which the defendants owned the property, they made payments pursuant to the terms of the first mortgage. The defendants eventually sold the property to a third party who agreed to hold them harmless from any personal liability based on the plaintiff’s mortgage note to City Savings. Subsequent to this sale, the property, which was uninsured, was destroyed by fire. The buyer of the property defaulted on the mortgage, and City Savings commenced an action against the plaintiff to recover the balance due on the mortgage note. The plaintiff then brought this action against the defendants alleging, among other things, that they had assumed the mortgage. The trial court rendered judgment for the defendants, finding that the plaintiff failed to prove by clear and convincing evidence that the defendants agreed to assume the first mortgage.

The finding of the trial court with respect to the contracting parties’ intent regarding the scope of their contractual commitment is, like any other finding of fact, subject to only a limited review on appeal. Lavigne v. Lavigne, 3 Conn. App. 423, 428, 488 A.2d 1290 (1985). The role of an appellate court is limited to determining whether the decision of the trier of fact was clearly erroneous in light of the evidence and the pleadings in the whole record. Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221, 435 A.2d 24 (1980); see Practice Book § 3060D. Under this limited scope of review, we conclude that the evidence presented in this case was sufficient to support the trial court’s decision.

Unless the grantee has agreed to assume an existing mortgage debt, the mere taking of title to the mortgaged property imposes no personal liability on the grantee to satisfy the debt, and the obligation to pay remains that of the mortgagor alone. Lenox Realty Co. v. Hackett, 122 Conn. 143, 147, 187 A. 895 (1936); Valente v. Costantino, 116 Conn. 386, 388, 165 A. 210 (1933); see Olean v. Treglia, 190 Conn. 756, 761, 463 A.2d 242 (1983). “An agreement, to constitute a contract of assumption of a mortgage debt by a grantee of the mortgaged premises, must clearly import that the grantee in fact assumes the payment of the debt.” 55 Am. Jur. 2d, Mortgages § 1047; see, e.g., Gagner v. Petrauskas, 112 Conn. 307, 311-12, 152 A. 145 (1930).

Where, as here, parol evidence is offered to establish an assumption of a mortgage debt by the grantee, the obligation of the grantee to assume and pay the mortgaged debt must be established by evidence which is clear and convincing. 59 C.J.S., Mortgages § 412 (b). There must be a clear showing of mutual assent before liability for a preexisting mortgage debt may be imposed upon a grantee of the mortgaged premises. See, e.g., Gagner v. Petrauskas, supra, 312; Haskins v. Young, 89 Conn. 66, 73, 92 A. 877 (1915); Raffel v. Clark, 87 Conn. 567, 571-72, 89 A. 184 (1913). A statement in a deed that it is made “subject to” a specified mortgage does not fulfill the requirement of mutual assent, because such a stipulation does not with sufficient clarity establish an intention by the parties to create such a liability in the grantee. 55 Am. Jur. 2d, Mortgages § 1048; see Lenox Realty Co. v. Hackett, supra.

The determination made by the trial court that the defendants never agreed to assume personal liability for the plaintiff’s mortgage cannot be said to be clearly erroneous. Having so concluded, we need not address the plaintiff’s claim that the trial court erred in ruling that an agreement to assume a mortgage had to be in writing to satisfy General Statutes § 52-550 (a) (2).

There is no error.

In this opinion the other judges concurred.


text:
    Nicastro Associates, Inc. v. C. F. Wooding Company
    (2139)
    Hull, Borden and Spallone, Js.
    Argued June 6
    decision released September 17, 1985

      Donald C. Lunt, for the appellant (defendant).

      Robert M. Opotzner, with whom, on the brief, was Daniel Shepro, for the appellee (plaintiff).
   Borden, J.

This case presents the issue of whether an employment agency is entitled to a fee for submitting to a potential employer the resume of a person who was ultimately hired, but hired on the basis of the person’s independent response to the employer’s newspaper advertisement. The defendant appeals from a judgment for the plaintiff. We find error.

The facts from which this case arose are as follows: The plaintiff is an employment agency which had provided some services for the defendant company in the past. Through the plaintiffs efforts, Steven Cohen was interviewed for a position with the defendant. Cohen was not hired at that time. One year later, after learning of the defendant’s desire to hire a staff estimator, the plaintiff sent a letter with Cohen’s resume to the defendant’s chief estimator. The defendant’s chief estimator showed the letter and resume to John and Terry Wooding, the president and vice-president of the defendant. The chief estimator also called the plaintiff after receiving the resume and stated that Cohen was overqualified for the job.

The defendant had placed advertisements in newspapers and trade journals stating that it was seeking to employ a staff estimator. In response to one of these advertisements, Cohen, independently of the plaintiff, submitted a letter and resume to the defendant. The letter and resume were received five days after the defendant had received Cohen’s resume from the plaintiff. On that day, the defendant, through John and Terry Wooding, decided to replace its chief estimator. Not recalling that they had seen Cohen’s resume earlier, the Woodings reviewed the letter and resume sent by Cohen and arranged an interview with him with an eye toward hiring him as chief estimator. Five days later Cohen was interviewed, and three weeks after that was hired to replace the chief estimator. The plaintiff requested a fee from the defendant for its assistance to the defendant in hiring Cohen. The defendant refused. The plaintiff brought this action to recover its fee.

The trial court found that the plaintiff was entitled to its fee because it had sent Cohen’s resume to the defendant. The court based its decision on the theory that the defendant had a duty to recollect that the plaintiff had sent Cohen’s resume one week before Cohen had done so. In the court’s view, the defendant also had a duty to maintain its files in the usual course of business such that it could determine whether or not the plaintiff had previously sent Cohen’s resume. Although the court found that the defendant was acting in good faith, it concluded that the defendant failed to meet these duties. Thus, although the plaintiff was not the actual procuring cause of the employment, the plaintiff was entitled to its fee for submitting the resume which, the court found, the defendant had not rejected.

On appeal, the defendant claims, inter alia, that the court erred in finding that the plaintiff was entitled to a fee without also finding that the plaintiff was the procuring cause of the employment or that the defendant acted in bad faith. We agree. Because of the absence of these critical findings, we need not address the defendant’s other claims.

Both parties analogize this situation to a real estate broker’s claim for a commission. We find the analogy apt in this case because it brings to the forefront the very heart of this matter: Were the plaintiff’s services, for which it demands a fee, the cause of Cohen’s employment by the defendant? See Scheff v. Robertson Paper Box Co., 39 Conn. Sup. 135, 471 A.2d 991 (1983); David Bruce Personnel Systems, Inc. v. Raphael’s Department Store, Inc., 32 Conn. Sup. 79, 338 A.2d 504 (1975); cf. MacEachern v. Rockwell International Corporation, 41 N.C. App. 73, 78-79, 254 S.E.2d 263 (1979) (rejecting analogy to real estate commission but noting that employment agency contracts usually provide that the agency be the procuring cause).

“Ordinarily, to entitle a broker to a commission in a case in which he does not have exclusive agency, his efforts must have been the predominating producing cause of the sale.” Kane v. Brunneau, 141 Conn. 242, 246, 105 A.2d 187 (1954); see also Marshall v. Sturgess & Jockmus, Inc., 150 Conn. 59, 62, 185 A.2d 472 (1962); Richter v. Drenckhahn, 147 Conn. 496, 500, 163 A.2d 109 (1960). In the present context, this means that an employment agency is entitled to its fee only if it was the “predominating producing cause,” or the procuring cause, of the actual employment of a particular employee.

In this case, there was no allegation in the plaintiffs complaint that it was the procuring cause of the hiring of Cohen by the defendant. The complaint alleges only that Cohen was hired, but does not allege that the hiring was as a result of the plaintiffs services. There was, however, some evidence presented at trial on the issue, and the court found that the plaintiff was not the procuring cause of Cohen’s employment.

“Whether a broker’s efforts are the procuring cause of a sale is an issue of fact for the trier, and its conclusion will stand unless it is contrary to, or unsupported by, the subordinate facts, or is in conflict with logic and reason, or is found in violation of some rule of law.” Richter v. Drenckhahn, supra; Marshall v. Sturgess & Jockmus, Inc., supra; Kane v. Brunneau, supra. The court’s factual conclusion on this issue must stand. The evidence in this case showed that the plaintiff had arranged an interview for Cohen a year earlier but, after the interview, Cohen was not hired. Then, when the plaintiff learned that the defendant was seeking to hire a staff estimator, it sent the defendant Cohen’s resume. The defendant received thirty to forty resumes in response to its advertisements for the position as a staff estimator and reviewed Cohen’s resume with those. Cohen appeared overqualified for the position of staff estimator and he was not considered for that position. When the defendant’s principals reviewed the identical resume submitted to it by Cohen, they did not remember reviewing Cohen’s resume for the position of staff estimator, but reviewed it anew, contemplating filling the position of chief estimator. The court found that the defendant did not do this in bad faith, with an intent to defraud the plaintiff of its fee, but that the plaintiff’s efforts at this point had ceased to be a cause of the ultimate employment of Cohen by the plaintiff. In light of the evidence, the court’s conclusion that the plaintiff was not the procuring cause of Cohen’s employment was not clearly erroneous.

The court’s explicit findings render it unnecessary for us to remand this case for a new trial. As a matter of law, the plaintiff was not entitled to a fee because the court found that it was not the procuring cause of Cohen’s employment as chief estimator. The court’s finding of a lack of bad faith on the defendant’s part, which is not disputed, further indicates that there is no sound reason for requiring it to pay the fee. Moreover, the complaint itself lacks any mention of a causal connection between the plaintiff’s services and the ultimate hiring of Cohen. Under these circumstances, a judgment must be rendered for the defendant.

We must consider, however, the plaintiff’s alternate ground for affirming the court’s decision raised in its preliminary statement of issues pursuant to Practice Book § 3012 (a). The plaintiff argues that the court’s general statement in its ruling that “the factual matters, as set forth in the Complaint, have been proven,” indicated that the second count of the plaintiff’s complaint, based on the theory of unjust enrichment, was proven and was a basis for the judgment for the plaintiff. The court, however, did not address this claim in any other fashion in its ruling. It is clear from the context and the court’s subsequent discussion of the applicable law that it found that the facts alleged in the complaint, which were set forth in the first count and incorporated into the second count, were proven, but not necessarily the legal theories.

Moreover, a finding of unjust enrichment could not be supported by this record. The court did not find that the plaintiffs actions constituted a benefit to the defendant, a prerequisite to recovery under this theory. Providence Electric Co. v. Sutton Place, Inc., 161 Conn. 242, 246, 287 A.2d 379 (1971). It did find, however, that the plaintiffs services were not the procuring cause of Cohen’s employment as chief estimator and that the defendant, at the time it considered Cohen’s resume for the position of chief estimator, did not recall that the plaintiff had previously submitted Cohen’s resume to it. There was undisputed evidence that Cohen had sent his resume independently and in response to the defendant’s advertisements. Under these facts, we cannot say that the defendant obtained something of value, to which it was not entitled, to the detriment of the plaintiff. Monarch Accounting Supplies, Inc. v. Prezioso, 170 Conn. 659, 665, 368 A.2d 6 (1976).

There is error, the judgment is set aside and the case is remanded with direction to render judgment for the defendant.

In this opinion the other judges concurred.

       This appeal was originally filed in the Appellate Session of the Superior Court. General Statutes § 51-197a (c).


author: Cretella, J.

text:
    Susan A. Zering v. Robert Zering
    (2783)
    Spallone, Daly and Cretella, Js.

      Argued May 31
    decision released September 17, 1985

      Joseph A. Hourihan, for the appellant (defendant).

      Hubert J. Santos, for the appellee (plaintiff).
   Cretella, J.

This is an appeal by the defendant, Robert Zering, from the financial portions of a judgment rendered by the trial court dissolving his marriage to the plaintiff, Susan Zering. The trial court found that the marriage had broken down irretrievably and awarded custody of the three minor children to the plaintiff; neither ruling has been contested by the parties.

The defendant claims that the trial court erred in making its awards of alimony and support and of post-majority education expenses for the children.

The defendant’s claim that the trial court abused its discretion in making its award of alimony and support is not supported by the record. The defendant contends that the court erred in excluding the defendant’s testimony as to the plaintiff’s earnings, erred in its findings of the defendant’s wages and assets, and failed to consider the defendant’s liabilities and expenses.

The court in its sound discretion may admit testimony as to the opinion of a lay witness. State v. PaLozie, 165 Conn. 288, 297-98, 334 A.2d 468 (1973); Atwood v. Atwood, 84 Conn. 169, 174, 79 A. 59 (1911); Holden & Daly, Connecticut Evidence (1966 and Sup. 1983) § 117 (c). We cannot say that the trial court’s exclusion of the defendant’s testimony of his wife’s earnings, based on the value of paintings she sold, which value was to be established by the amount of United Parcel receipts for paintings shipped, as speculative, was clearly erroneous. The transcript clearly reveals that the trial court had an abundance of facts and information upon which it could make its findings as to the needs of the plaintiff and the wages, assets, liabilities and expenses of the defendant.

It has been repeatedly stated that “ ‘judicial review of a trial court’s exercise of its broad discretion in domestic relations cases is limited to the questions of whether the [trial] court correctly applied the law and could reasonably have concluded as it did.’ Beede v. Beede, 186 Conn. 191, 194, 440 A.2d 283 (1982) . . . ." Holley v. Holley, 194 Conn. 25, 29, 478 A.2d 1000 (1984); see also Volante v. Volante, 180 Conn. 528, 530, 429 A.2d 964 (1980). With respect to the financial awards in a dissolution action, great weight is given to the judgment of the trial court because of its opportunity to observe the parties and the evidence. Gallo v. Gallo, 184 Conn. 36, 44, 440 A.2d 782 (1981). We find no abuse of discretion in the trial court’s award of alimony and support.

The defendant next claims that the trial court’s award of postmajority education expenses for the children exceeded the statutory authority of the court in making support orders pursuant to General Statutes § 46b-84.

The trial court ordered the plaintiff to retain possession and control of a $10,000 savings account held in trust for the children. The money had been a gift from the defendant’s mother to the parties for their three minor children. An account was opened with the plaintiff designated as trustee. The trial court further ordered that “[t]he net income may be used by the Plaintiff wife for the support and maintenance of the children. The principal may be used for the education of the children. The Plaintiff shall provide annually on or about June 15th to the Defendant an accounting in writing of the status of this fund. Upon the youngest child reaching age 22, any balance of principal remaining is to be divided equally between the Plaintiff and the Defendant.”

In Salvio v. Salvio, 186 Conn. 311, 441 A.2d 190 (1982), where there appeared to be distinct trust provisions set up for the benefit of the children and which trusts were far more firmly established than the alleged trust in the present case, the court, nevertheless, found that those funds were assets of the marriage primarily because the trusts were not irrevocable and the parents could have exercised control over them at their whim.

If the savings account here could be found to be an irrevocable trust for the benefit of the children, then postmajority education expenses would be permitted on the basis that the funds were in fact trust funds for the benefit of the children and not as an asset of the marriage. The order of the court directing that the income be used for the education expenses of the children, including postmajority expenses, with any remaining corpus of the funds to be divided equally between the husband and wife flies in the face of those funds being trust funds for the children. Either the income and corpus belong to the children as trust funds, or the funds are an asset of the marriage over which the court could exercise control.

The record reveals little, if any, information concerning the savings account and the transcript merely indicates that funds were given to the husband and wife from the mother of the defendant with some vague reference that they were to be used for the children’s education. The elements of establishing a trust which would remove the funds as an asset of the marriage are totally lacking in the light of the guidelines established in Salvio v. Salvio, supra. The case must therefore be remanded for the trial court’s articulation of its findings concerning the disposition between the parties of the $10,000 savings account as an asset of the marriage.

There is error in part, the judgment is set aside and the case is remanded for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       We note that the gift to the children does not appear to fall within the Uniform Gifts to Minors Act, General Statutes § 45-101 et seq. See Weisbaum v. Weisbaum, 2 Conn. App. 270, 477 A.2d 690 (1984).