author: Foti, J.

text:
    James Stevens v. Raymark Corporation/Raybestos Manhattan et al.
    (9153)
    Dupont, C. J., Foti and Lavery, Js.
    Argued May 5
    decision released July 14, 1992

      Thomas H. Cotter, for the appellant (named defendant).

      Mark W. Oberlatz, for the appellee (plaintiff).
   Foti, J.

The defendant corporation, Raymark Corporation/Raybestos Manhattan, appeals from the decision of the compensation review division affirming a March 14,1989 finding and award by the workers’ compensation commissioner (commissioner). The sole issue to be determined concerns the appropriate rate of pay on which to calculate the benefits due the plaintiff pursuant to the provisions of the Workers’ Compensation Act, General Statutes § 31-275 et seq.

The following undisputed facts are relevant to this appeal. The plaintiff, James Stevens, was employed by the defendant from 1972 until 1979. During his employment, the plaintiff was exposed to asbestos at his workplace. On April 29, 1985, the plaintiff was diagnosed with asbestos related lung disease. On June 27, 1987, he was diagnosed as having suffered a permanent partial disability to his lungs as a result of his exposure to asbestos. The parties stipulate that the claimant suffers a 46.25 percent disability of both lungs.

The case was brought before the workers’ compensation commissioner for the fourth district to determine the appropriate average weekly wage on which to base the amount of benefits to which the plaintiff was entitled. The commissioner determined that the appropriate compensation rate was the average weekly wage earned by the plaintiff at the time he was diagnosed as having a permanent partial disability. The defendant appealed to the compensation review division on the ground that the commissioner incorrectly determined the appropriate compensation rate. The review division affirmed the decision of the commissioner, and the defendant appealed to this court. We affirm the decision of the review division.

The defendant argues that the compensation rate should be based on the plaintiffs average weekly wage at the time he suffered the injury. The defendant asserts that under workers’ compensation law, the date of the injury is the date in 1979 on which the plaintiff was last exposed to asbestos while employed by the defendant.

The applicable case law provides that the relevant date for determining compensation to an injured worker is the date of his incapacity to work, however. In Rousu v. Collins Co., 114 Conn. 24, 31, 157 A. 264 (1931), our Supreme Court held that where the events leading to a worker’s injury and the incapacity to work do not occur simultaneously, such as in this case where the injury resulted from prolonged exposure to asbestos, the date of injury for the purpose of determining compensation is the date of incapacity to work. The court stated, “[t]he just measure of the value of the earning power of an employee and the correlative loss incurred by him would seem to relate to his earnings at the time the loss occurs through incapacity to work, rather than his earnings at an earlier time, perhaps so remote that, through changing conditions, personal or industrial, or both, his earnings at that time no longer accurately or correctly reflect the present value of the earning power of the [worker].” Id.

Two years later in Michna v. Collins Co., 116 Conn. 193, 164 A. 502 (1933), our Supreme Court again addressed this issue. In that case, the plaintiff worked as a wet grinder from 1913 until 1923, when he transferred to dry grinding. In 1924, he quit and obtained employment elsewhere. In 1930, he was forced to give up employment of any kind because he had contracted pneumoconiosis as a result of his occupation as a wet grinder. Pneumoconiosis, a form of lung disease, typically does not cause disability until years after exposure. In determining the appropriate basis on which to calculate the plaintiffs compensation, the court stated, “the basis of ascertainment of average weekly wage ... is the wages received from the employer in whose service the plaintiff was at the time his incapacity occurred, even though in the exceptional case, as here, a change of employers intervenes between the physical injury . . . and the incapacity.” Id., 200.

General Statutes § 31-307 provides: “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 . . . .” The legislature enacted Public Acts 1980, No. 80-124, amending § 31-307 of the Workers’ Compensation Act to read: “In the case of an occupational disease, the time of injury shall be the date of total or partial incapacity to work as a result of such disease.” Thus, under both statutory and common law, the plaintiff’s benefits should be calculated on the basis of his wages on the date of his incapacity to work rather than on the date of his injury.

Although the plaintiff in this case left the defendant’s employ in 1979, he continued to work elsewhere. Even after he was diagnosed with occupational lung disease in 1985, he continued to work. His incapacity to work for the purposes of § 31-307 occurred when he was diagnosed as permanently partially disabled on June 22, 1987, and became eligible for workers’ compensation benefits under § 31-308. Therefore, his benefits should be computed on the basis of his wages immediately prior to June 22, 1987.

The defendant argues that the decision of our Supreme Court in Michna v. Collins Co., supra, is not controlling in this case because it was decided over fifty-five years ago and because the statutes in question have changed considerably since that time. Rather, the defendant argues, the decisions of the compensation review division in Pich v. Pratt & Whitney, 4 Conn. Workers’ Comp. Rev. Op. 163 (1988), and Delos v. United Illuminating, 7 Conn. Workers’ Comp. Rev. Op. 111 (1989), mandate that the plaintiff’s benefits be calculated on the basis of his wages in 1979, the time of his last exposure to asbestos.

Neither Pich v. Pratt & Whitney, supra, nor Delos v. United Illuminating, supra, however, squarely addresses the issue presented by the case at hand or adequately supports the defendant’s position. In fact, in Pich v. Pratt & Whitney, supra, the review division cites its decision in O’Leary v. New Britain, 3 Conn. Workers’ Comp. Rev. Op. 108, 110-11 (1986), in which it held that in the case of an injury occurring over a period of time, the appropriate calculation of benefits relates to the time of the manifestation of the injury, i.e., the date that incapacity from the injury occurred. While the review division notes in Pich v. Pratt & Whitney, supra, that in a case of prolonged exposure to harm the date of injury is the last day of exposure to the harm, this language is not sufficient to persuade us that the plaintiffs benefits should be calculated according to his wages on the date of his last exposure to asbestos.

Finally, the defendant is mistaken in its apparent belief that a case is not binding precedent simply because it was decided several decades ago. “[T]here is no question but that ‘[a] decision of [our Supreme Court] is a controlling precedent until overruled or qualified.’ ” White v. Burns, 213 Conn. 307, 335, 567 A.2d 1195 (1990), quoting Herald Publishing Co. v. Bill, 142 Conn. 53, 61-62, 111 A.2d 4 (1955). Because Michna v. Collins Co., supra, and Rousu v. Collins Co., supra, have not been overruled, and because the workers’ compensation statutes hereinbefore discussed have not altered the reasoning of these two cases, they control our decision in this case. The plaintiff’s benefits should be determined according to his rate of pay immediately preceding his diagnosis as permanently partially disabled.

The decision of the compensation review division is affirmed.

In this opinion the other judges concurred.

       General Statutes § 31-275 (11) defines occupational disease as “any disease peculiar to the occupation in which the employee was engaged and due to causes in excess of the ordinary hazards of employment as such and includes any disease due to or attributable to exposure to or contact with any radioactive material by an employee in the course of his employment.”

       The defendant asserts that the 1980 amendment to General Statutes § 31-307 is inapplicable to this case because it had not yet been passed by the legislature at the time the plaintiff retired from the defendant company in 1979. The defendant is incorrect in its assertion, however, because the 1980 amendment simply codified the rule of law established years earlier in Michna v. Collins Co., 116 Conn. 193, 164 A. 502 (1933), and Rousu v. Collins Co., 114 Conn. 24, 157 A. 264 (1931).


source: Caselaw Access Project

author: Daly, J.

license: Public Domain

text:
    State of Connecticut v. Vincent Colon
    (9809)
    Daly, O’Connell and Heiman, Js.

      Argued April 3
    decision released July 14, 1992

      Elizabeth M. Inkster, assistant public defender, with whom, on the brief, were G. Douglas Nash, public defender, and Richard Emanuel, assistant public defender, for the appellant (defendant).

      Frederick W. Fawcett, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Stephen J. Sedensky III, assistant state’s attorney, for the appellee (state).
   Daly, J.

The defendant appeals from a judgment of conviction, rendered after a jury trial, of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (1). The defendant claims that the trial court improperly (1) restricted his cross-examination of the state’s witnesses about their involvement with illegal narcotics, (2) admitted as a prior inconsistent statement evidence that a state’s witness had been threatened, (3) instructed the jurors to reach a verdict after they had announced that they were deadlocked, (4) instructed the jury about the state’s burden of proof, and (5) instructed the jury about inferences to be drawn from the evidence. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On July 19, 1989, the victim, Larry Bush, and Willie Carr went to the P. T. Barnum apartments in Bridgeport. Upon their arrival, the victim got into an argument and a fight with a group of Hispanic males. Carr testified that the defendant, who was standing with the group of Hispanic males, drew a gun and began shooting as Carr ran for cover. After the shooting stopped, Carr returned to the area and found Bush mortally wounded. Carr, who was acquainted with the defendant, made both an out-of-court and in-court identification of the defendant as the person who had the gun.

Rohan Clarke testified that he was at the apartment complex on the day of the shooting overseeing some individuals who were selling illegal narcotics for him. Clarke stated that he was acquainted with both the victim and the defendant. Clarke also testified that he saw the defendant shoot the victim. He admitted that he did not want to be a witness and was present in court only because of a subpoena by the state’s attorneys’ office.

Roderick Ford, a state’s witness, testified that he was at the apartment complex on July 19, 1989, but that he did not witness the incident. This testimony contradicted his earlier sworn statement in which he identified the defendant, whom he knew as the person who shot the victim. Dolores Feliciano, a tenant at the apartment complex, testified on behalf of the defendant. She testified that she saw a black man shoot another black man. She did not know the defendant or the victim in this case.

I

The defendant first claims that the trial court improperly restricted his cross-examination of the state’s witnesses about their involvement with illegal narcotics: The defendant argues that the court’s restrictions violated his federal and state constitutional rights to confront the witnesses against him.

The following facts are relevant to this claim. Carr, who had a prior felony conviction for possession of narcotics, testified that he was not involved with illegal drugs at the time of the shooting. The defendant questioned Carr about his relationship with an individual identified as John Allen. Carr stated that he did not work for Allen during July, 1989. The defendant attempted to make an offer of proof outside the jury’s presence about Carr’s involvement with illegal narcotics. The defendant could state only that he had some information that Carr was involved with selling drugs. The court ruled that this was not the time to conduct discovery about Carr’s involvement with narcotics. The defendant objected and took an exception to the court’s ruling. The court allowed the jury to be told only that Carr had an unspecified felony conviction. The court allowed the defendant to inquire whether Carr was using drugs at the time of the shooting because that would affect his ability to perceive and remember the events.

Clarke, another state’s witness, admitted that he was on probation for selling marihuana at the time that he testified. He further admitted that he had other people sell narcotics for him on July 19, 1989, at the apartment complex. This constituted a violation of his probation. During cross-examination, defense counsel asked Clarke how much money he made from the sale of drugs. The court sustained the state’s objection to this question. The court found that details of Clarke’s drug transactions and the amount of income generated from them were not probative of any issue in the case. The defendant took an exception to the court’s ruling. After further cross-examination, the defendant asked Clarke if he wore a beeper. Clarke stated that he was wearing a beeper in court. Defense counsel then asked if he could see the beeper. The state’s objection to this question was sustained. The court found that this would not relate to the issue of credibility and sustained the objection on the same basis as the previous objection.

“The confrontation clause of the sixth amendment requires that the defendant be accorded some irreducible minimum of cross-examination into matters affecting the reliability and credibility of the state’s witnesses.” State v. Ortiz, 198 Conn. 220, 224, 502 A.2d 400 (1985). We must first determine whether the defendant was allowed the minimum cross-examination so as “ ‘to expose to the jury the facts from which the jurors, as the sole triers of facts and credibility, [can] appropriately draw inferences relating to the reliability of the (state’s) witnesses.’ ” State v. Crumble, 24 Conn. App. 57, 65-66, 585 A.2d 1245 (1991), quoting Davis v. Alaska, 415 U.S. 308, 318, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974). Even if the constitutional standard of cross-examination was satisfied, we must also determine whether the court’s restriction constituted an abuse of discretion. State v. Crumble, supra, 65. It is also well established that the defendant’s right to cross-examine a witness is not absolute and may be subject to reasonable limitations. State v. Thompson, 191 Conn. 146, 148, 463 A.2d 611 (1983). “Every evidentiary ruling which denies a defendant a line of inquiry to which he thinks he is entitled is not constitutional error.” State v. Vitale, 197 Conn. 396, 403, 497 A.2d 956 (1985).

After reviewing the record, we conclude that the constitutional standard for confrontation was met. The defendant informed the jury that Clarke was on probation presently and at the time of the incident for selling marihuana. Clarke admitted to having others sell drugs for him on the day of the shooting in violation of his probation. He also stated that he was gambling when the shooting occurred and that the victim was not one of his customers. The defendant also asked over the state’s objection whether the victim was a customer of any of the witness’ sellers. This indicated that Clarke was significantly involved in the sale of illegal drugs because he had others selling for him. During redirect examination, Clarke admitted that, had he not been subpoenaed, he would not have come forward to testify. Therefore, Clarke’s credibility was clearly brought into question by the defendant’s cross-examination.

We next examine whether the court abused its discretion by refusing inquiry into the details related to Clarke’s selling of drugs and its limitation of the defendant’s inquiry into Clarke's wearing of a beeper. An abuse of discretion occurs if the defendant establishes that the trial court’s restrictions on his cross-examination were clearly prejudicial. State v. Castro, 196 Conn. 421, 426, 493 A.2d 223 (1985). Because the trial court’s limitation of his cross-examination of Clarke was not a constitutional violation, we will give “every reasonable presumption” in favor of upholding the court’s ruling when determining if the ruling amounted to an abuse of discretion. State v. Briggs, 179 Conn. 328, 333, 426 A.2d 298 (1979), cert. denied, 447 U.S. 912, 100 S. Ct. 3000, 64 L. Ed. 2d 862 (1980).

The defendant has failed to establish prejudice resulting from the court’s limitation of his cross-examination of Clarke. A trial court is vested with broad discretion in determining the relevance and admissibility of evidence. State v. Bunkley, 202 Conn. 629, 649, 522 A.2d 795 (1987). “The evidence sought through cross-examination must be relevant.” State v. Johnson, 21 Conn. App. 291, 293, 573 A.2d 1218 (1990). The court’s finding that the specific details related to the amount of income from Clarke’s drug transactions and inquiry about wearing a beeper were irrelevant to the issues in this case and, thus, did not constitute an abuse of discretion.

We apply the same analysis to the court’s limitation of cross-examination concerning Carr. During cross-examination, Carr stated that he identified the defendant as the shooter upon discovering that the police viewed Carr as a suspect in the shooting. He stated that he was not involved in any way with illegal drugs during July, 1989. Carr also admitted to a felony conviction for which he served approximately eight months in jail. At the end of Carr’s testimony on June 26,1989, the court asked Carr to remain available in case he was recalled as a witness. On July 2,1990, Carr was recalled as a witness by the defense. The defendant did not attempt to develop any further information about Carr’s involvement with illegal drugs. The defendant questioned Carr about his association with an individual named Jakeem who was involved in an argument with the victim before he was shot.

Again, we find that the constitutional standard was satisfied by the defendant’s cross-examination of Carr. Carr denied being involved with illegal drugs during July, 1989. The defendant failed to offer any evidence contradicting this answer. The court’s ruling that Carr’s possession conviction could be referred to only as an unspecified felony conviction did not constitute an abuse of discretion. See State v. Geyer, 194 Conn. 1, 12-13, 480 A.2d 489 (1984). “Although a narcotics offense, such as [a] conviction for possession of heroin, reflects adversely on the general character of a witness, it has no direct materiality in determining the credibility of a witness.” State v. Roman, 6 Conn. App. 189, 191, 504 A.2d 529 (1986). The defendant has failed to establish any prejudice resulting from the court’s rulings on his cross-examination of Carr.

II

The defendant next claims that the trial court improperly admitted as a prior inconsistent statement evidence that a state’s witness had been threatened.

The following additional facts are relevant to this claim. The defendant was initially charged with murder in violation of General Statutes § 53a-54a (a). On October 12, 1989, at the defendant’s probable cause hearing, Roderick Ford testified that he saw the defendant shoot the victim. Ford also gave a written statement to Detective David Silva of the Bridgeport police impheating the defendant on July 25,1989. Ford further testified that he met with a public defender representing the defendant at the probable cause hearing on the morning of October 12,1989. Ford told the public defender that the defendant did not shoot the victim and that he did not know the defendant. Ford testified that the defendant told him to say this. Ford also stated that he had been threatened by some people associated with the defendant. He admitted to selling drugs for the defendant on the day of the shooting.

At trial, the state called Ford to testify about the events surrounding the shooting. Ford testified that he did not see what happened to the victim. He then stated that he lied in his statement given to Silva implicating the defendant. When asked why he lied, Ford responded, “I don’t know.” Ford insisted that he also lied at the probable cause hearing about the defendant’s involvement in the shooting of the victim. The state then sought to elicit Ford’s recollection of being threatened at the time of the probable cause hearing. The defendant objected to this line of questioning and argument was held outside the presence of the jury. The court allowed the state to ask about threats made against Ford because it was relevant to the change in his testimony. The court also stated that because Ford testified at the probable cause hearing about being threatened it could be admissible as a prior inconsistent statement. Ford testified that although he had been threatened about testifying in October, 1989, since then he had not received any other threats. Ford confirmed that the defendant had told him in October, 1989, to say that the defendant did not participate in the shooting.

“The general rule is that threats against witnesses are not relevant and are thus inadmissible as evidence unless the defendant is linked in some way to the making of the threats.” State v. Walker, 214 Conn. 122, 129, 571 A.2d 686 (1990). “An exception to the general rule concerning the admissibility of evidence of threats exists, however, where the evidence of threats is offered not to prove the guilt of the accused but rather to explain a witness’ prior inconsistent statement.” Id.

The defendant argues that Ford did not make any inconsistent statements that would require explanation through the admission of threats against the witness. Ford claimed to have been threatened in October, 1989. Despite these threats, Ford testified at the probable cause hearing that the defendant shot the victim. Ford then changed his story and claimed that he had lied about the defendant’s involvement. Ford stated that he had not been threatened after the initial threats in October, 1989.

“ ‘The scope and extent of the explanation for the conduct or inconsistent statements [of a witness] is a matter within the discretion of the trial court and we may reverse only upon a finding of abuse of that discretion. State v. Charles, 525 S.W.2d 360, 363 (Mo. App. 1975).’...” State v. Walker, supra, 130, quoting State v. May, 587 S.W.2d 331, 336 (Mo. App. 1979). Ford’s testimony at trial linked the defendant to the making of a threat concerning his involvement in the shooting. Ford testified that the defendant told him in October, 1989, to state that he did not shoot the victim. This threat was admissible because it was linked to the defendant.

The court did not abuse its discretion in allowing the state to show that Ford had previously acknowledged being threatened by people associated with the defendant. Ford was unable to give any reason why he lied earlier about the defendant’s involvement. Even though the threats were made in October, 1989, and did not initially prevent Ford from implicating the defendant, the earlier threat provides some basis for the change in Ford’s testimony. The court’s determination that the threats may have explained Ford’s conduct in changing his story was within its discretion.

Ill

The defendant next claims that the court improperly charged the jury on reasonable doubt. The defendant argues that the court’s instructions diluted the state’s burden of proof in violation of his state and federal constitutional rights. The defendant claims that the court’s instructions incorrectly forced the jury to articulate a basis for their doubts. He further claims that the court incorrectly characterized a reasonable doubt as one which a person “would pay some heed to” in his or her daily affairs. We reject both aspects of the defendant’s claim.

In its original charge, the court explained what constituted a reasonable doubt. During the course of its deliberations, the jurors requested that the court further explain reasonable doubt in “laymen’s terms.” The court repeated its earlier definition of reasonable doubt.

The court’s instruction in this case that “a reasonable doubt is a doubt for which a valid reason can be assigned” has been upheld in State v. Findlay, 198 Conn. 328, 345-46, 502 A.2d 921, cert. denied, 476 U.S. 1159, 106 S. Ct. 2279, 90 L. Ed. 2d 721 (1986). State v. Theriault, 24 Conn. App. 502, 508, 589 A.2d 379 (1991); see also State v. Ryerson, 201 Conn. 333, 342-43 n.2, 514 A.2d 337 (1986) (trial court’s instruction that a reasonable doubt is one for which a reasonable person could assign a valid reason is not improper). We reject this aspect of the defendant’s claim.

The defendant also claims that the court should not have defined a reasonable doubt as one which the jurors “would pay some heed to." This instruction is similar to the instruction upheld in State v. Theriault, supra. The trial court in that case defined “a reasonable doubt as ‘the kind of doubt that in the serious affairs that concern in your everyday life, you would pay heed and attention to.’ ” Id. Here, the trial court also stated that a reasonable doubt is “[t]he kind of doubt that would make a reasonable person hesitate to act.” In both State v. Smith, 210 Conn. 132, 147-48, 554 A.2d 713 (1989), and State v. Johnson, 214 Conn. 161, 177-80, 571 A.2d 79 (1990), our Supreme Court preferred this definition concerning hesitation over a definition of reasonable doubt as one that jurors would be “willing to act upon” in their important affairs. On the basis of our review of the original charge and supplemental instructions, we conclude that the court’s definition of reasonable doubt was correct and did not dilute the state’s burden of proof.

IV

The defendant next claims that the court incorrectly instructed the jury about drawing inferences from the evidence. The defendant did not file a written request to charge on inferences and also failed to take an exception to the court’s charge on inferences. “ ‘We generally do not consider a claimed error regarding the giving of or failure to give an instruction “unless the matter is covered by a written request to charge or exception has been taken . . . immediately after the charge is delivered.” . . .’” (Citations omitted.) State v. Williams, 202 Conn. 349, 362, 521 A.2d 150 (1987).

The defendant argues that this claim is reviewable under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), and State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). We disagree with the defendant’s analysis and find that this claim is not reviewable.

The court’s instruction on circumstantial evidence required both the underlying fact and the inferred fact to be proved beyond a reasonable doubt. A similar instruction was found to be an incorrect statement of the law in State v. McDonough, 205 Conn. 352, 355, 533 A.2d 857 (1987), cert. denied, 485 U.S. 906,108 S. Ct. 1079, 99 L. Ed. 2d 238 (1988); State v. Rivera, 24 Conn. App. 670, 677, 591 A.2d 440, cert. denied, 219 Conn. 914, 593 A.2d 139 (1991). The trial court, however, is not required to give a separate jury instruction that circumstantial evidence offered by the defendant does not have to be proved beyond a reasonable doubt before the jury can consider it. See State v. Ortiz, 217 Conn. 648, 667-69, 588 A.2d 127 (1991). “[A]s long as the charge given does not suggest that the defendant’s circumstantial evidence must be ignored unless he proves that evidence beyond a reasonable doubt,” the court does not have to give a specific instruction differentiating between circumstantial evidence offered by the state from that offered by the defendant. State v. Willis, 24 Conn. App. 678, 682, 591 A.2d 445 (1991), aff’d, 221 Conn. 518, 605 A.2d 1359 (1992).

We have consistently found similar incorrect jury instructions on circumstantial evidence to be harmless beyond a reasonable doubt. State v. Tinsley, 24 Conn. App. 685, 689, 591 A.2d 448, cert. denied, 220 Conn. 902, 593 A.2d 968 (1991); State v. Willis, supra. Because the defendant did not bear any burden of proof, the jury was not misled by this instruction, which, in effect, increases the state’s burden of proof. See State v. James, 211 Conn. 555, 581, 560 A.2d 426 (1989); State v. Tinsley, supra. We decline the defendant’s invitation to reverse our position on this issue. The defendant is not entitled to review of this claim because he has failed to satisfy the fourth prong of Golding.

V

The defendant next claims that the trial court improperly instructed the jury after it reported to the court that it was deadlocked and unable to reach a unanimous verdict. During the course of its deliberations, the jury sent a note to the court stating that it was deadlocked. The court asked the jurors to continue deliberations. The jury then sent another note that stated: “We the jury have reached a verdict of not guilty on the first degree murder charge. However, we are deadlocked on the intentional manslaughter with a vote of eight guilty and four not guilty. Four not guilty jurors totally discredit all the testimony of Carr, Ford and Clarke. We’re deadlocked.” After further deliberations, the jury again notified the court that they were “hopelessly deadlocked” on all manslaughter charges. The court then gave a Chip Smith charge to the jury. After another question about the difference between manslaughter in the first and second degree, the jury reached a verdict. The defendant argues that the court’s Chip Smith charge was coercive because it was directed only to the minority jurors who favored an acquittal. The defendant never objected at trial to the court’s Chip Smith charge. He asserts that because this claim concerns a fundamental constitutional right, it can be reviewed on the record, and is entitled to Evans/Golding review.

The Chip Smith instruction, which derives from State v. Smith, 49 Conn. 376 (1881), has been consistently upheld as constitutional and proper when a jury announces that it is unable to reach a unanimous verdict. See State v. Ryerson, 201 Conn. 333, 349-50, 514 A.2d 337 (1986); State v. O’Neil, 200 Conn. 268, 281-84, 511 A.2d 321 (1986); State v. Ralls, 167 Conn. 408, 424-25, 356 A.2d 147 (1974), overruled on other grounds, State v. Rutan, 194 Conn. 438, 479 A.2d 1209 (1984). Our Supreme Court has noted that “ ‘[n]o specific words are required if jurors are properly instructed that each juror’s vote must reflect his [or her] considered judgment as to how the case is to be decided. . . . The right to disagree is implicit.’ ” State v. Ralls, supra, 425, quoting United States v. Bowles, 428 F.2d 592, 595-96 (2d Cir.), cert. denied, 400 U.S. 928, 91 S. Ct. 193, 27 L. Ed. 2d 188 (1970). The trial court does not have to inform the jury that it is not required to reach a verdict. State v. Smith, 222 Conn. 1, 22-23, 608 A.2d 63 (1992).

In this case, the court’s Chip Smith charge stated that the jurors should not abandon their firm and honest convictions in order to reach a unanimous result. The court asked only that the minority jurors reevaluate their opinions and be open to further discussion on the majority position. The court did not warn the jurors about the negative consequences of mistrial resulting from a deadlocked jury. “The potential of a mistrial, upon a deadlock, often regarded as coercive, was fully absent in this charge. See, e.g., Commonwealth v. Rodriquez, 364 Mass. 87, 100 n.16, 300 N.E.2d 192 (1973).” State v. O’Neill, supra, 284.

In State v. Avcollie, 188 Conn. 626, 640-42, 453 A.2d 418 (1982), cert. denied, 461 U.S. 928, 103 S. Ct. 2088, 77 L. Ed. 2d 299 (1983), the defendant argued that the Chip Smith charge was coercive because the court was aware that the jury was deadlocked eleven to one for conviction. Id., 641. Our Supreme Court rejected the defendant’s claim that the court’s Chip Smith charge was “tantamount to a directed verdict of guilty.” Id. Here, the jurors were deadlocked eight to four for conviction. Therefore, the minority was in a stronger position than in Avcollie. In this case, the court’s instructions encouraged the jurors to reach a unanimous result but emphasized that the result should be a product of each juror’s own honest and firm beliefs. This is the proper function of the Chip Smith charge. Id.

We find that the “Chip Smith” charge in this case was proper. The defendant has failed to establish the existence of a constitutional violation resulting from this instruction. The defendant was not deprived of a fair trial by this instruction and, therefore, fails to satisfy the third prong of State v. Golding, supra.

The judgment is affirmed.

In this opinion the other judges concurred.

       The court instructed: “The burden then is on the state to prove the accused guilty of the crime for which he is charged, and the accused does not have to prove his innocence .... And we have been using the term beyond a reasonable doubt, and I will now define and explain that phrase to you. It has no technical or unusual meaning. You can arrive at the real meaning of it by emphasizing the word reasonable. A reasonable doubt, a reasonable doubt is a doubt for which a valid reason can be assigned. It is a doubt if something more than a guess or a surmise. . . . It is a doubt based upon reasonable and common sense. The kind of doubt that would make a reasonable person hesitate to act. Proof beyond a reasonable doubt if proof of such a compelling and convincing nature that you would be willing to rely on it without hesitation in your most important affairs. A reasonable doubt in other words is a real doubt, an honest doubt, a doubt which has its foundation in the evidence or lack of evidence. It is such a doubt as a series of affairs which concern you in everyday life, you would pay some heed to. The law does not require proof beyond all doubt. But the law does require however, is that after hearing all the evidence if there is something in the evidence or lack of evidence which leaves in the minds of the jury as reasonable men and women a reasonable doubt of the guilt of the accused, then the accused must be given the benefit of that doubt and acquitted.”

       A defendant “can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail.” (Emphasis in original.) State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).

       The court instructed: “It is your duty to make every reasonable effort to come to a verdict. You must listen to what the other jurors say. You must not hesitate to reconsider their opinion. ... As reasonable people you normally should ultimately be able to come to a unanimous agreement upon a verdict. On the other hand, the verdict must be one which each juror considers just in his or her own mind. A juror cannot desert his or her own mind. A juror cannot desert his or her firm and honest convictions simply to reach an agreement which he or she regards as wrong. Although the verdict which each of you agrees must express his or her own conclusion, and not be a mere acquiescence in the conclusion of your fellow jurymen. Yet, in order to bring your twelve minds to a unanimous result, you should consider the questions you have to decide not only carefully, but also with due regard in deference to the opinions of each other. In conferring together you ought to pay proper respect to each other’s opinion and listen with an open mind to each other’s arguments. If much the larger number of you reach a certain conclusion, a dissenting juror or jurors should consider whether his or her opinion is a reasonable one when the evidence does not lead to a similar result in the minds of so many men and women who are equally honest and equally intelligent, who have heard the same evidence with the same attention, with equal desire to arrive at the truth, and under the sanction of the same oath. If a majority of you are for one decision, the minority ought to seriously ask themselves whether they may not reasonably or ought not to doubt their own conclusions when it is not concurred in by most of those with whom they are associated. And they may well distrust the weight or sufficiency of the evidence upon which they rely when it fails to bring the minds of their fellows to the same conclusion they hold. . . .”


text:
    In re Mark C. et al.

    (10774)
    Dupont, C. J., Daly and Foti, Js.
    Argued May 6
    decision released July 14, 1992

      George C. Heck, for the appellant (respondent mother).

      Benjamin Zivyon, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Denise Lillo Vecchio, assistant attorney general, for the appellee (petitioner).

      Susan M. Connolly, for the minor children.

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 2026, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Daly, J.

The respondent mother appeals from the trial court’s judgment terminating her parental rights pursuant to General Statutes § 17a-112 (b) (2) and (3). The respondent claims (1) that the trial court improperly took judicial notice of the findings from the earlier neglect proceedings in this case and (2) that the trial court’s decision was not supported by clear and convincing evidence as required by General Statutes § 17a-112. We affirm the judgment of the trial court.

The following facts are relevant to this appeal. The respondent was the mother of Mark C., born March 31, 1983, and Amy C., born July 2, 1984. In May, 1986, the department of children and youth services (DCYS) received a report of physical abuse involving Mark. The respondent pleaded guilty to criminal charges involving this incident of physical abuse. The evidence at the termination hearing revealed that Mark’s father actually abused the child but that the respondent falsely accepted responsibility for the incident. On July 29, 1986, petitions were filed by DCYS alleging that both children were neglected and uncared for by their parents. On December 16,1986, the children were determined to be neglected because they were living in conditions deemed to be injurious to their health and well-being. The children were allowed to remain under the care and custody of the respondent subject to DCYS protective supervision. Both parents entered into a service agreement with DCYS concerning the children that was effective for a six month period. During this period, the father continued to abuse Mark physically. The parents’ failure to comply with the service agreement resulted in both children’s being committed to the custody and guardianship of DCYS for a period of eighteen months on January 26, 1988.

During November, 1988, the father was incarcerated and the respondent resumed temporary custody of both children. The respondent had complied with her service agreement during the period preceding this reunification with her children. On January 19, 1989, the commissioner obtained a court order preventing the father from contacting or residing with his children upon his release from jail. During April, 1989, the commissioner discovered that the father was making contact with the children in violation of the court order and sought to have the father held in contempt for his violation of the January restraining order. On June 1, 1989, Susan Wax, the DCYS social worker overseeing this case, found the father in the respondent’s apartment alone with the children. Both children told their therapists that their father was staying with them during the period that the restraining order was in effect. The children were removed from the respondent’s home and placed in a foster home. The children remained in foster care from that time until the present.

On December 17,1990, the commissioner sought to terminate both parents’ parental rights as to Mark and Amy. The trial court found that there was clear and convincing evidence establishing that the respondent had failed to rehabilitate herself and would not be able to resume a responsible role in the lives of the children pursuant to General Statutes § 17a-112 (b) (2). The court further found that there was clear and convincing evidence to support the termination of her parental rights. General Statutes § 17a-112 (b) (3). The court ruled that the respondent’s acts of omission deprived the children of the care necessary for their physical and emotional well-being. After finding that the statutory grounds for termination were satisfied, the court applied the statutory factors set forth in General Statutes § 17a-112 (d). The court held that it was in the children’s best interests to terminate the respondent’s parental rights. The respondent appealed from that decision.

I

The respondent claims that the trial court improperly took judicial notice of decisions and findings related to the earlier neglect proceedings. The respondent argues that such judicial notice resulted in the imposition of a lower standard of proof in the parental termination phase. The respondent did not object to the court’s decision to take judicial notice of the earlier proceedings and now argues that the court’s taking judicial notice constituted plain error. We reject the respondent’s argument.

The following facts are pertinent to the resolution of this claim. The commissioner requested that the court take judicial notice of certain items in the court file involving earlier proceedings in this case. The court asked the respondent’s counsel and the counsel representing the children whether they had any objections to the commissioner’s request. The respondent’s counsel voiced a concern only about the meaning of one of the orders in the file. After clarification of that order, the respondent’s counsel did not raise any other objection to this request. Counsel for the children did not object to this request. The court then took judicial notice of the record of the earlier proceedings. The commissioner’s written motion requested that the court take judicial notice of all past proceedings in this case as well as all documents contained in the court file. In its extensive written memorandum of decision, the court noted that its factual findings derived from the court file of which it took judicial notice. The respondent failed to request that the trial court articulate exactly how it used the contents of the judicially noticed material.

A claim not raised at trial is generally not renewable by this court on appeal. In re Jonathan P., 23 Conn. App. 207, 211, 579 A.2d 587 (1990). Although Practice Book § 4185 allows a reviewing court to review alleged errors not raised at trial, “[i]t is only in rare cases that this exception to the requirement for seasonable assertion of claims in the trial court may be invoked.” Ralto Developers, Inc. v. Environmental Impact Commission, 220 Conn. 54, 59, 594 A.2d 981 (1991). “ ‘Such review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.’ ” Id., quoting State v. Hinckley, 198 Conn. 77, 87-88, 502 A.2d 388 (1985).

“Judicial notice . . . meets the objective of establishing facts to which the offer of evidence would normally be directed.” State v. Tomanelli, 153 Conn. 365, 368, 216 A.2d 625 (1966). Judicial notice reheves a party only of having to offer proof on the matter; it does not constitute conclusive proof of the matter nor is the opposing party prevented from offering evidence disputing the matter established by judicial notice. Id., 369. Here, the commissioner offered independent evidence from witnesses who were involved in the earlier proceedings to support the finding of neglect as well as the need to terminate the respondent’s parental right. The respondent never attempted to dispute any of the documents that were admitted pursuant to the taking of judicial notice of the earlier proceedings.

The trial court has the power to take judicial notice of court files of other actions between the same parties. Carpenter v. Planning & Zoning Commission, 176 Conn. 581, 591, 409 A.2d 1029 (1979). “[TJhis does not mean that it might use every statement it found in the papers constituting the file with the same effect as though the facts were in evidence before it.” German v. German, 125 Conn. 84, 89, 3 A.2d 849 (1938). It would be improper for the trial court to base its decision terminating the respondent’s parental rights solely on findings from the earlier proceedings that were judicially noticed by the court. Here, the court merely took into consideration the evidence from the earlier proceedings in determining whether the commissioner presented clear and convincing evidence justifying the termination of parental rights. The respondent was given an opportunity to object to the court’s taking of judicial notice but did not object.

The respondent appears to argue that because the trial court took judicial notice of the court file in this case it terminated her parental rights under the preponderance of the evidence standard instead of the clear and convincing evidence standard. The earlier proceedings concerning the neglect determination by the court required proof by only a preponderance of the evidence to remove the children from the respondent’s care and custody. See In re Juvenile Appeal (81-AB), 192 Conn. 254, 267 n.13, 471 A.2d 1380 (1984). The respondent raises a general allegation that the taking of judicial notice of the earlier proceedings tainted the parental termination decision. The respondent fails to point to any particular aspect of the court’s ruling to show that it applied the lesser evidentiary standard. The court, in its memorandum of decision, refers only to the clear and convincing evidence standard. The respondent did not show any judicially noticed facts that were used by the trial court in its decision to terminate her parental rights. The reports, such as the social study and evaluations from the earlier proceedings, were prepared by persons who appeared as witnesses in the parental termination phase. The respondent fails to point to any factual finding by the court necessary to the termination of her parental rights that was based solely on the judicially noticed facts. During a parental termination hearing, the trial court may rely on evidence used to establish a finding of neglect as long as that evidence is considered under the clear and convincing evidence standard. Id. The trial court properly reviewed all the evidence under the clear and convincing evidence standard. The respondent has failed to establish that the trial court terminated her parental rights solely on the basis of the finding of neglect in the earlier proceedings. The trial court’s taking of judicial notice of the earlier proceedings did not constitute plain error.

II

The respondent next claims that there was insufficient evidence to support the termination of her parental rights. We disagree.

This court must determine whether the trial court’s judgment was supported by the facts and was legally correct. In re Joshua Z., 26 Conn. App. 58, 64, 597 A.2d 842, cert. denied, 221 Conn. 901, 600 A.2d 1028 (1991). This court will not assess the witness’ credibility nor will it retry the case. In re Christine F., 6 Conn. App. 360, 366-67, 505 A.2d 734, cert. denied, 199 Conn. 808, 809, 508 A.2d 769, 770 (1986).

The respondent bases this claim on the fact that the evidence indicated that the father of the children committed all the acts of physical and sexual abuse. While the respondent may have been victimized by her abusive husband, she is not relieved of her responsibilities to her children.

The respondent’s therapist testified that the respondent attended counseling sessions sporadically over a three year period. The respondent tended to appear regularly during the periods of her husband’s incarceration. The therapist felt that the respondent promoted her own needs rather than those of her children. The respondent appeared unwilling to discuss important personal topics related to her problems with caring for her children. The therapist testified that the respondent would be unable to care for her children by herself.

The court-appointed psychiatrist also agreed that the respondent was unable to provide the necessary care for her children. He felt that there was no realistic hope of the respondent’s improving enough to care for her children in the near future. The psychiatrist did not believe that the respondent’s present male companion would provide enough support to enable the respondent, even with the assistance of DCYS employees, to provide the necessary care and support for her children. Both the psychiatrist and court-appointed psychologist believed that the father would pose a threat to the children upon his release from incarceration if they were returned to the respondent. There was also evidence presented that the children need a permanent and stable environment. The children were approaching a critical age for adoption and delay would have a negative effect on their adoptability.

On the basis of all the evidence and testimony presented, there was clear and convincing evidence to support the termination of the respondent’s parental rights. The trial court’s decision was legally correct and factually supported.

The judgment is affirmed.

In this opinion the other judges concurred.

       On May 3, 1991, the father of the children consented to the termination of his parental rights and is not a party to this appeal. We will refer to the respondent mother as the respondent.

       General Statutes § 17a-112 (b) provides in pertinent part: “The superior court upon hearing and notice, as provided in sections 45a-716 and 45a-717, may grant such petition if it finds, upon clear and convincing evidence, that the termination is in the best interest of the child and that, with respect to any consenting parent, such parent has voluntarily and knowingly consented to termination of his parental rights with respect to such child or that, with respect to any nonconsenting parent, over an extended period of time, which, except as provided in subsection (c) of this section, shall not be less than one year . . . (2) the parents of a child who has been found by the superior court to have been neglected or uncared for in a prior proceeding have failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, they could assume a responsible position in the life of the child; or (3) the child has been denied, by reason of an act or acts of parental commission or omission, the care, guidance or control necessary for his physical, educational, moral or emotional well-being. ...”

       General Statutes § 17a-112 (d) provides: “Except in the case where termination is based on consent, in determining whether to terminate parental rights under this section, the court shall consider and shall make written findings regarding: (1) The timeliness, nature and extent of services offered or provided to the parent and the child by an agency to facilitate the reunion of the child with the parent; (2) the terms of any applicable court order entered into and agreed upon by any individual or agency and the parent, and the extent to which all parties have fulfilled their obligations under such order; (3) the feelings and emotional ties of the child with respect to his parents, any guardian of his person and any person who has exercised physical care, custody or control of the child for at least one year and with whom the child has developed significant emotional ties; (4) the age of the child; (5) the efforts the parent has made to adjust his circumstances, conduct, or conditions to make it in the best interest of the child to return him to his home in the foreseeable future, including, but not limited to, (A) the extent to which the parent has maintained contact with the child as part of an effort to reunite the child with the parent, provided the court may give weight to incidental visitations, communications or contributions and (B) the maintenance of regular contact or communication with the guardian or other custodian of the child; and (6) the extent to which a parent has been prevented from maintaining a meaningful relationship with the child by the unreasonable act or conduct of the other parent of the child, or the unreasonable act of any other person or by the economic circumstances of the parent.”

       Practice Book § 4185 provides in pertinent part: “The supreme court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The supreme court may in the interest of justice notice plain error not brought to the attention of the trial court.”


author: Landau, J.

text:
    James Caserta v. Zoning Board of Appeals of the City of Milford et al.
    (8665)
    Foti, Lavery and Landau, Js.
    Submitted on briefs March 23
    decision released July 14, 1992

      Cynthia C. Anger, assistant city attorney, filed a brief for the appellant (named defendant).

      Benson A. Snaider filed a brief for the appellee (plaintiff).
   Landau, J.

This case is before this court on remand from the Supreme Court. Initially, we concluded that the defendant zoning board of appeals did not have subject matter jurisdiction to hear the plaintiff’s appeal. Caserta v. Zoning Board of Appeals, 23 Conn. App. 232, 580 A.2d 528 (1990). The Supreme Court, after granting the defendant’s petition for certification, reversed our decision and remanded the case for our consideration of the underlying substantive issue. Caserta v. Zoning Board of Appeals, 219 Conn. 352, 593 A.2d 118 (1991). The sole issue to be decided on remand is whether the trial court applied the proper scope of review to the board’s determination that the zoning enforcement officer was without authority to issue the requested permit and that the permit was improperly issued because the nonconforming use has been abandoned. We conclude that it did not.

The pertinent facts are set forth in Caserta v. Zoning Board of Appeals, supra, 219 Conn. 353, and Caserta v. Zoning Board of Appeals, supra, 23 Conn. App. 232, and will be restated only briefly here. The plaintiff is the owner of a parcel of property that includes a twenty unit hotel-rooming house that was in use as such prior to the adoption of zoning in Milford. The plaintiff applied to Peter Crabtree, the zoning enforcement officer of the city of Milford, for a zoning permit. Crabtree granted the permit and then subsequently revoked it on the order of Angelo Marino, chairman of the planning and zoning board. The plaintiff appealed the revocation to the zoning board of appeals and was informed by letter dated April 22, 1988, that the board was upholding the revocation on the ground that the permit had been improperly issued and that the nonconforming use had been abandoned. The plaintiff appealed to the Superior Court. The Superior Court sustained the plaintiff’s appeal.

In its memorandum of decision, the trial court stated that the board failed to “state upon its record the reason for its decision” to affirm the revocation of the plaintiffs permit as required by General Statutes § 8-7. It further found that Crabtree granted the plaintiffs permit in his capacity as zoning enforcement officer and that he complied with the zoning regulations relating to the plaintiff’s application. Finally, the trial court concluded that the zoning permit had been improperly revoked because the criteria for revocation as set forth in State v. Tedesco, 175 Conn. 279, 397 A.2d 1352 (1978), had not been met.

“An administrative agency such as the board in the instant case is called on to determine the applicability of the law to a given state of facts presented to it. The trial court [has] to decide whether the board correctly interpreted the regulation and applied it with reasonable discretion to the facts. Pascale v. Board of Zoning Appeals, 150 Conn. 113, 117, 186 A.2d 377 (1962).” Thorne v. Zoning Board of Appeals, 156 Conn. 619, 620, 238 A.2d 400 (1968); see also Miniter v. Zoning Board of Appeals, 20 Conn. App. 302, 308-309, 566 A.2d 997 (1989). “ Tn applying the law to the facts of a particular case, the board is endowed with a liberal discretion, and its action is subject to review by the courts only to determine whether it was unreasonable, arbitrary or illegal.’ . . Schwartz v. Planning & Zoning Commission, 208 Conn. 146, 152, 543 A.2d 1339 (1988), quoting Toffolon v. Zoning Board of Appeals, 155 Conn. 558, 560-61, 236 A.2d 96 (1967).

“[If] a zoning authority has stated the reasons for its actions, the reviewing court ought to examine the assigned grounds to determine whether they are reasonably supported by the record and pertinent to the considerations the authority was required to apply pursuant to the zoning regulations.” (Citations omitted.) Beit Havurah v. Zoning Board of Appeals, 177 Conn. 440, 444-45, 418 A.2d 82 (1979). The court is restricted to determining whether the board’s findings are reasonably supported by the record and whether the reasons given were pertinent reasons for the board’s actions. Horn v. Zoning Board of Appeals, 18 Conn. App. 674, 677, 559 A.2d 1174 (1988). These limitations clearly apply to a trial court’s review of a zoning board decision as well as to our review of the trial court’s decision.

The board argues that the trial court applied an improper standard of review in sustaining the plaintiff’s appeal. Specifically, the board argues that, in reaching its conclusion, the trial court improperly considered the actions of the zoning enforcement officer rather than the entire record on which the board relied. We disagree, but conclude that the trial court did not properly consider whether the board correctly interpreted the regulations and applied them with reasonable discretion to the facts. See Miniter v. Zoning Board of Appeals, supra.

Initially, we note that the trial court was correct in concluding that the board failed to “state upon its record the reason for its decision” to affirm the revocation of the plaintiff’s permit as required by General Statutes § 8-7. This alone, however, is not sufficient justification for the trial court’s sustaining the plaintiff’s appeal. In Gagnon v. Inland Wetlands & Watercourses Commission, 213 Conn. 604, 569 A.2d 1094 (1990), the plaintiff appealed from a decision of the inland wetlands commission on the sole ground that the commission failed to state on the record the reason for its decision. Our Supreme Court concluded that the trial court improperly sustained the plaintiff’s appeal and held that the long established rule requiring a search of the administrative record in appeals from planning and zoning authorities to determine if there is an adequate basis for the action taken, applies with equal force to an appeal from an inland wetlands commission. Id., 608.

The trial court’s reliance on this inadequacy, alone, does not mandate a reversal of its decision because this was not the sole basis on which it sustained the plaintiff’s appeal. The trial court also relied on the fact that the board improperly determined that Crabtree was not authorized to issue the plaintiff’s permit and that the board improperly affirmed the revocation of the permit.

As stated previously, where the board sets forth the reasons for its actions, the reviewing court is bound by those findings and may examine only those assigned grounds to determine whether they are reasonably supported by the administrative record or are clearly erroneous. Molic v. Zoning Board of Appeals, 18 Conn. App. 159, 164-65, 556 A.2d 1049 (1989). The board’s reasons for sustaining the revocation are clearly set forth in the April 22 letter informing the plaintiff that the board was upholding the revocation of the permit. The board concluded that Crabtree was not the proper authority to issue the requested permit, and, relying on a “presumption of abandonment,” determined that the plaintiff had abandoned the nonconforming use of the property, therefore, relinquishing the right to use the property in a nonconforming manner.

The trial court applied the proper standard of review in determining that Crabtree granted the plaintiff’s permit in his capacity as zoning enforcement officer and that he complied with the zoning regulations relating to the plaintiffs application. In support of its conclusion that Crabtree was the proper authority to grant the permit the trial court relied on the following facts: (1) Crabtree’s testimony before the board that he had been acting as the zoning enforcement officer since 1971 and had acted on over 1000 zoning permit applications, and has continued to act on permit applications after the plaintiff’s application, without objection, (2) the town of Milford’s casual acceptance of Crabtree as zoning enforcement officer, and (3) whenever Crabtree is referred to in the record, he is referred to as the zoning enforcement officer. In support of its conclusion that Crabtree complied with the zoning regulations in issuing the plaintiff’s permit, the trial court relied on Crabtree’s testimony that he felt the permit was valid because, although there was a decrease in the use, (1) the original use was apparent, (2) a mere vacancy does not constitute abandonment, (3) a vacant apartment in a building does not indicate that the use is abandoned, (4) there was never a single-family house on the property, (5) a rooming house is a permitted use in a single-family zone, and (6) no additional parking spaces needed to be provided.

These facts lead to the reasonable conclusion that Crabtree granted the plaintiff’s permit in his capacity as zoning enforcement officer and that the board improperly determined to the contrary. We, therefore, conclude that the trial court applied the proper standard in concluding that the board improperly determined that Crabtree was not authorized to issue the permit to the plaintiff. See Miniter v. Zoning Board of Appeals, supra. Although the court did not use the talismanic phrase “clearly erroneous,” such a conclusion is implicit in its memorandum of decision.

The trial court, however, never addressed the second of the two reasons set forth by the board for affirming the revocation of the plaintiff’s permit — that, because of a “presumption of abandonment,” the plaintiff’s cessation of the nonconforming use resulted in the plaintiff’s relinquishing the right to use the property in the nonconforming manner.

The trial court’s conclusion that the zoning permit had been improperly revoked because the criteria for revocation as set forth in State v. Tedesco, supra, had not been met goes beyond the stated reasons for the board’s affirmation of the revocation of the zoning permit. We, therefore, conclude that in determining that the Tedesco criteria had not been satisfied, the trial court exceeded the proper scope of review.

The judgment is reversed and the case is remanded to the trial court to determine whether the board properly relied on a presumption of abandonment and thereby found that the plaintiff had abandoned the nonconforming use of his property.

In this opinion the other judges concurred.

       Upon adoption of the regulations, the use became a preexisting nonconforming use.

       The court noted that this situation was governed by §§ 8.3 and 8.5 of the city regulations. Section 8.3 requires that an application, accompanied by a layout or plot plan showing specific information about the property, be submitted to the zoning enforcement officer prior to the commencement of any construction. Section 8.5 states that the zoning enforcement officer shall approve the application if all of the requirements of the zoning regulations have been met.


author: Dupont, C. J.

text:
    Harvey Hoffman et al. v. Inland Wetlands Commission of the Town of Avon
    (10235)
    Dupont, C. J., Daly and Foti, Js.

      Argued March 23
    decision released July 14, 1992

      Helene Sfikas Myers, with whom, on the brief, was Roger Eisenstein, for the appellants (plaintiffs).

      Michael A. Zizka, with whom, on the brief, was Colleen M. Wolter, for the appellee (defendant).
   Dupont, C. J.

This appeal arises from the denial by the town of Avon’s inland wetlands commission (commission) of the plaintiffs’ request for a permit to conduct regulated activities in and around wetlands. The proposed activities concern the construction of a dwelling and driveway within wetlands and within forty feet of wetlands, on a lot owned by the plaintiffs.

Pursuant to General Statutes § 22a-39 (h), the plaintiffs applied to the commission for a permit for the subject property, known as lot thirty-four, and for another nearby lot they owned. A public hearing was held and the commission unanimously denied the request for a permit for lot thirty-four because “the proposed plan would result in a significant impact on the wetlands.” The application for the second lot was denied without prejudice. The plaintiffs appealed from the denial of the permit for lot thirty-four to the Superior Court. General Statutes § 22a-43. The appeal was dismissed, and an appeal was then taken to this court.

The parties agree that the lot contains inland wetlands and that the proposed construction required a permit from the commission pursuant to General Statutes § 22a-41. The commission does not contest the plaintiffs’ standing to bring this appeal.

In 1981, the plaintiffs acquired lot thirty-four, which is almost an acre, half of which is wetlands. They also own two other lots, one adjacent to lot thirty-four and one across the street from it. Lot thirty-four is located in a residential zone and is part of a subdivision approved in the early 1960s.

The plaintiffs first question whether the trial court was correct in determining that the plaintiffs had the burden of proving that “a feasible and prudent alternative” to the plaintiffs’ plan for construction did not exist. General Statutes § 22a-41 (b) provides in pertinent part that “a permit [for the conduct of a regulated activity] shall not be issued unless the [commission] finds that a feasible and prudent alternative [to the activity] does not exist. . . .” The plaintiffs alleged in their complaint that “there is no feasible and prudent alternative to the plan presented” and they make the same claim on appeal to this court.

The plaintiffs argue that they did not have such a burden and further that the commission’s minutes contain a finding that feasible and prudent alternatives do not exist, thereby making it unnecessary for them to have presented to the commission any evidence about alternative plans.

The question as to which party has the burden of proof concerning “feasible and prudent alternatives” has been settled. It lies with the plaintiff-applicant. In Huck v. Inland Wetland & Watercourses Agency, 203 Conn. 525, 525 A.2d 940 (1987), the court found the trial court in error “insofar as it placed the burden on the agency to demonstrate that there were alternatives . . . .” Id., 553. Furthermore, in the present case, as in Huck, the plaintiffs assumed the burden of proof on this issue because their complaint alleged that no such alternative existed. Id., 553 n.18.

The plaintiffs argue, nevertheless, that Red Hill Coalition, Inc. v. Conservation Commission, 212 Conn. 710, 563 A.2d 1339 (1989), exonerates them from proving that no such alternative exists. Although Red Hill states that applicants are not compelled to submit formal plans or drawings for all possible alternatives, the court does not place any burden on the inland wetlands agency to do so. Instead, the court recognizes that the commission could consider alternatives submitted by the applicants or by other interested parties, and clarifies that the applicant need not submit plans for all possible alternatives. Nothing in Red Hill disturbs the holding of Huck. The trial court was, therefore, correct in its placement of the burden of proof on the plaintiffs.

The plaintiffs also argue that the commission, according to its minutes, found that no feasible and prudent alternative existed. A review of the minutes of the commission’s September 5,1989 meeting discloses that the plaintiffs’ applications for two lots were considered. Several commissioners indicated their desire for alternative plans for one property and denied that application without prejudice. They next turned to lot thirty-four. One commissioner “questioned the likelihood that, even with sufficient creativity, an alternative exists, [for either lot], that would satisfy the commission given the impact ... to the wetland.” The commission then denied the second permit unanimously. Our reading of the minutes does not convince us that the commission made any finding regarding alternative plans for developing lot thirty-four. The fact that one commissioner questioned the existence of an alternative is not equivalent to the commission’s finding that no alternative existed. Schwartz v. Town Planning & Zoning Commission, 168 Conn. 285, 290, 362 A.2d 1378 (1975). The record supports the trial court’s determination that no such finding was made by the commission.

The plaintiffs also claim that the commission should not have considered their ownership of a lot adjoining lot thirty-four and that the trial court should have sustained their appeal on that basis. The minutes of the September 5 meeting reflect that the town planner, who is not a member of the commission, indicated that in addition to the two lots described in the plaintiffs’ permit applications, they owned a third lot that adjoined lot thirty-four. The town planner “thought it important to consider the overall picture of how all three of the lots may or may not be developed.” The ownership of the abutting lot was also indicated on the plaintiffs’ maps. The commission did not expressly consider the use of the adjoining lot in determining whether a feasible and prudent plan did not exist, although that alternative was suggested later by the defendant’s counsel and by the trial court. The plaintiffs argue that under General Statutes § 4-183 (j) (6) and E.I.S., Inc. v. Board of Registration, 200 Conn. 145, 509 A.2d 1056 (1986), the commission exceeded its authority by considering the adjoining parcel at its hearing. We disagree.

In Red Hill Coalition, Inc. v. Conservation Commission, supra, the commission permitted a landowner to fill one wetlands area and to construct a road over another in return for a promise to create new wetlands on other land it owned. The court ruled that General Statutes § 22a-41 (a) allowed the commission to “take into consideration all relevant facts and circumstances, including but not limited to [the six named factors].”

Our statutes do not require the commission to consider each application as an entity unto itself, devoid of any context. In Madrid Corporation v. Inland Wetlands Agency, 25 Conn. App. 446, 594 A.2d 1037, cert. denied, 220 Conn. 915, 597 A.2d 334 (1991), we upheld the consideration of wetlands that were not located on the applicant’s property. Whether an owner seeking a permit has an interest in an adjoining lot is relevant to a determination of whether a permit should be granted. See Gil v. Inland Wetlands Agency, 219 Conn. 404, 407, 593 A.2d 1368 (1991).

Indeed, the legislative findings in General Statutes § 22a-36 recognize that wetlands and watercourses are “an interrelated web of nature,” which must be protected and preserved. To require a commission to regard each parcel with blinders, ignoring the overall development of an area and, in particular, the ownership of abutting parcels, would defeat the statute’s purposes. The commission must be allowed to use its own knowledge of a site and local conditions, including other properties owned by the applicant, in its deliberations. See Manor Development Corporation v. Conservation Commission, 180 Conn. 692, 433 A.2d 999 (1980); Welch v. Zoning Board of Appeals, 158 Conn. 208, 216, 257 A.2d 795 (1969).

The plaintiffs next claim that, if the decision of the commission is upheld, the decision constitutes a taking because the diminution in value of the property exceeds any health, safety, or welfare benefits.

The test for determining whether a taking has occurred cannot be resolved on the basis of the denial of a single application, as in this case, or even the denial of multiple applications. Gil v. Inland Wetlands Agency, supra. Instead, the reviewing court must first establish that there was a final authoritative decision by a commission and then conduct a two-pronged analysis. That analysis must result in two conclusions. First, the landowner’s expectation of development must be found to be factually reasonable and second, the denial of the application must constitute a taking either as a practical confiscation of property or by application of a balancing test. Id. It is the plaintiffs’ burden to prove that there was a final authoritative decision, that the expectation for development was reasonable and that the property cannot be used for any reasonable purpose or that the denial of a permit caused the owner great economic deprivation without a significant public benefit. D’Addario v. Planning & Zoning Commission, 25 Conn. App. 137, 147-48, 593 A.2d 511 (1991).

The plaintiffs claim that there was an unconstitutional taking of their property because the denial of their application for a permit rendered the property useless. Before that claim is reached, the plaintiffs must show that they have heen finally deprived by the commission of their use of the property. Gil v. Inland Wetlands Agency, supra; Manor Development Corporation v. Conservation Commission, supra; Brecciaroli v. Commission of Environmental Protection, 168 Conn. 349, 362 A.2d 948 (1975); Vartelas v. Water Resources Commission, 146 Conn. 650, 153 A.2d 822 (1959).

The rejection of the plaintiffs’ application for a permit does not imply that less ambitious plans will receive a denial as well. Gil v. Inland Wetlands Agency, supra. On the basis of the record before us, it cannot be known whether the plaintiffs may yet be permitted, after the submission of some subsequent application, to use a smaller portion of the lot, or to position the house and driveway differently, or to provide for a different type of drainage.

Because a future application with a different plan for construction and excavation may be granted, there has not yet been a final authoritative decision by the commission. Without such a decision, a taking cannot have occurred. Gil v. Inland Wetlands Agency, supra; Brec ciaroli v. Commissioner of Environmental Protection, supra. We can not, therefore, reach the merits of the plaintiffs’ claim that a taking occurred. Gil v. Inland Wetlands Agency, supra.

The trial court was correct in rendering judgment for the defendant.

The judgment is affirmed.

In this opinion the other judges concurred.

       The named plaintiff is the record owner of the subject property. Morton Weiner, the other plaintiff, is an equitable owner of the property pursuant to a partnership agreement.

       General Statutes § 22a-41 provides: “(a) In carrying out the purposes and policies of sections 22a-36 to 22a-45, inclusive, including matters relating to regulating, licensing and enforcing of the provisions thereof, the commissioner shall take into consideration all relevant facts and circumstances, including but not limited to:
      “(1) The environmental impact of the proposed action;
      “(2) The alternatives to the proposed action;
      “(3) The relationship between short-term uses of the environment and the maintenance and enhancement of long-term productivity;
      “(4) Irreversible and irretrievable commitments of resources which would be involved in the proposed activity;
      “(5) The character and degree of injury to, or interference with, safety, health or the reasonable use of property which is caused or threatened; and
      ‘ ‘(6) The suitability or unsuitability of such activity to the area for which it is proposed.
      “(b) In the case of an application which received a public hearing, a permit shall not be issued unless the commissioner finds that a feasible and prudent alternative does not exist. In making his finding the commissioner shall consider the facts and circumstances set forth in subsection (a). The finding and the reasons therefor shall be stated on the record.”

       This case is unlike those in which the action of a town agency involves a zone change, thereby establishing a final authoritative decision that affects a landowner. See Dooley v. Town Planning & Zoning Commission, 151 Conn. 304, 311, 197 A.2d 770 (1964); D’Addario v. Planning & Zoning Commission, 25 Conn. App. 137, 593 A.2d 511 (1991).

       Since we hold that a taking has not yet occurred, we need not reach the claim of the plaintiffs that the named plaintiff, a real estate broker, should have been allowed to testify as to the diminished value of lot thirty-four if the permit were not granted. Such testimony would be relevant to the question of whether the plaintiffs purchased the lot with the reasonable expectation of developing it or that the denial caused the owners great economic deprivation without a significant public benefit. See Gil v. Inland Wetlands Agency, 219 Conn. 404, 414, 593 A.2d 1368 (1991).
      Even if the plaintiffs established a reasonable expectation of commercial or residential development, they “cannot prevail unless the agency’s denial on the merits of [their] application for a building permit constituted a taking”; id., 415; and a judicial review of those merits cannot be had until the plaintiffs establish the finality of the agency decision.


text:
    George J. Jacob, Jr., et al. v. Seaboard, Inc., et al.
    (10754)
    Dupont, C. J., Daly and O’Connell, Js.
    Argued March 24
    decision released July 14, 1992

      Roger J. Frechette, with whom was Matthew E. Frechette, for the appellants (plaintiffs).

      Stephen I. Traub, with whom, on the brief, was Suzanne L. McAlpine, for the appellees (defendants).
   Dupont, C. J.

This appeal arises from the trial court’s dismissal of the plaintiffs’ application seeking confirmation of an arbitrator’s award. The sole issue before this court is whether the trial court correctly concluded that the parties did not intend to have their written agreement, which provided for an appraisal of the plaintiffs’ shares of stock, require an arbitration under chapter 909 of our statutes. We affirm the judgment of the trial court.

The plaintiffs collectively own 264 shares (23.6 percent) of the common stock of the defendant, Seaboard, Inc. On November 8,1989, the parties signed an agreement fixing the terms for the sale of the plaintiffs’ stock.

Pursuant to the agreement, each of the parties appointed one appraiser. When the appraisers were unable to agree on an appropriate valuation, Michael J. Bolotsky was chosen to determine a value for the stock pursuant to the contract. On December 31,1990, he wrote to both parties. Bolotsky stated that the parties had agreed on a sale price of $15,425 per share and that, in his opinion, it was a fair price.

The parties did not conclude the sale. On June 4,1991, the plaintiffs’ filed an Application to Confirm Arbitrator’s Award pursuant to General Statutes § 52-417. At the argument of the matter, the only evidence presented to the trial court was the written contract, Bolotsky’s letter, and various other correspondence between the parties. There was no testimony heard by the trial court.

The plaintiffs contend that the second clause of the agreement is an agreement to arbitrate, pursuant to General Statutes § 52-408. They claim that the trial court abused its discretion in ruling that the clause does not evidence an agreement to arbitrate, that it does not satisfy the requirements of § 52-408, and that the parties did not intend to arbitrate any part of the agreement.

Arbitration is “the voluntary submission, by the interested parties, of an existing or future dispute to a disinterested person or persons for final determination.” Gary Excavating, Inc. v. North Haven, 164 Conn. 119, 121, 318 A.2d 84 (1972); Harry Skolnick & Sons v. Heyman, 7 Conn. App. 175, 179, 508 A.2d 64 (1986). General Statutes § 52-408 provides a statutory right for parties to agree in writing to arbitration.

The right to arbitration can be created only by contract. Wesleyan University v. Rissel Construction Associates, Inc., 1 Conn. App. 351, 472 A.2d 972, cert. denied, 193 Conn. 802, 474 A.2d 1259 (1984). Our statutes do not require any particular words or form to create an arbitration agreement. “ ‘The intent of the parties that arbitration be the exclusive method for the settlement of disputes arising under the Contract must be clearly manifested. This express intent by both parties to enter into the arbitration agreement is essential to its existence.’ ... An agreement to arbitrate must be clear and direct and not depend on implication.” (Citations omitted; emphasis in original.) Harry Skolnick & Sons v. Heyman, supra, 179, citing M. Domke, Commercial Arbitration § 5.01, p. 49.

In this case, the trial court did not find a clearly expressed intent of the parties to arbitrate. Ordinarily, the intent of the parties to a contract is a question of fact to be determined by the trier of fact. First Hartford Realty Corporation v. Ellis, 181 Conn. 25, 33, 434 A.2d 314 (1980); Connecticut National Bank v. N.E. Owen II, Inc., 22 Conn. App. 468, 578 A.2d 655 (1990). Here, the only evidence on which the trial court could base its decision was the contract itself and correspondence written after the contract had been signed. Therefore, “the issue of intent, although ultimately factual in nature, presents a question of law. The trial court’s conclusions as to intent were based not on such factors as the credibility of witnesses, or on the testimony of live witnesses as to the meaning of documents or as to circumstances surrounding the execution of those, documents, but on the intent expressed in the [contract] considered in the light of their surrounding circumstances.” Marion Road Assn. v. Harlow, 1 Conn. App. 329, 332, 472 A.2d 785 (1984). When the trial court has no occasion to evaluate the credibility of witnesses or to assess the intent of the parties, the record before it is identical to the record before this court. In these circumstances, the legal inferences to be drawn from the documents raise questions of law rather than of fact. Morton Buildings, Inc. v. Bannon, 222 Conn. 49, 53-54, 607 A.2d 431 (1992).

The trial court reviewed the distinction between appraisal and arbitration to determine the parties’ intent. “There is a clear and recognized distinction between the arbitration of a controversy and a contract, one term of which calls for the ascertainment by designated persons of values, qualities, or similar facts. . . . In an arbitration, there must be some difference or dispute in addition to the amount or value of damages, existing or prospective, between the parties, and they must intend that it should be determined in a quasi-judicial manner. That is the distinction between an agreement for an appraisal or a valuation, and an arbitration. In the case of a valuation and appraisal, there is no other difference or dispute between the parties and they intend that the appraiser shall, without taking evidence or hearing arguments, make his valuation according to his own skill, knowledge and experience.” R. Rodman, Commercial Arbitration § 2.3, pp. 20-21.

The distinction between appraisal and arbitration described by Rodman was discussed in Covenant Ins. Co. v. Banks, 177 Conn. 273, 413 A.2d 862 (1979). We agree with the plaintiff that Covenant Ins. Co. focuses on the question of whether the parties sought to submit a controversy or dispute to a third party for final determination. We also agree that the valuation of stock can be an arbitrable controversy. Ginsberg v. Coating Products, Inc., 152 Conn. 592, 595, 210 A.2d 667 (1965). Neither of these cases, however, disposes of the case before us because neither court was asked, as was the trial court here, to determine whether the parties intended by their contract to agree to arbitration.

Covenant Ins. Co. involved a statutory mandate for an appraisal as required by General Statutes (Rev. to 1979) § 38-98 (now § 38a-307) and, therefore, there was no need to consider the question of the parties’ intent. In Ginsberg, there was a clearly expressed arbitration clause in the parties’ contract, leaving the court to determine only whether there was a controversy as defined by General Statutes § 52-408. The sole question here, however, is whether the parties intended to arbitrate a dispute arising out of the valuation of the plaintiffs’ stock.

Arbitration is a quasi judicial proceeding. See Florasynth, Inc. v. Pickholz, 750 F.2d 171, 173-74 (2d Cir. 1984); Caldor, Inc. v. Thornton, 191 Conn. 336, 343, 464 A.2d 785 (1983), aff’d, 472 U.S. 703, 105 S. Ct. 2914, 86 L. Ed. 2d 557 (1984); Local 530, AFSCME, Council 15 v. New Haven, 9 Conn. App. 260, 269, 518 A.2d 941 (1986). It is a contractual remedy intended to avoid the formalities of ordinary litigation. Ginsberg v. Coating Products, Inc., supra. Such a quasi judicial proceeding is adversarial in nature, and implies that the parties will present witnesses and evidence, if they want, after notice of a hearing date, and argue their positions to an impartial decision maker. The contract in the present case allowed both of the parties’ chosen appraisers, if they were unable to agree on the fair market value of the plaintiffs’ stock, to select a third appraiser. That appraiser would make an independent determination of the fair market value “[ajfter giving each appraiser full opportunity to be heard.” Although the appraisers are given an opportunity to be heard, the contract does not provide any similar opportunity for the parties or their counsel. Where the decision is to be made solely on the opinion of the parties’ expert witnesses, without taking evidence from or hearing argument of the parties, without notice to the parties, and without providing the parties the opportunity to question the opinions of the other’s expert witness, the attributes of a quasi judicial proceeding are missing. See R. Rodman, supra, § 2.3, p. 22.

Another distinction between arbitration and appraisal is the degree of formality that attends the proceedings. Our statutes make provisions for subpoena and deposition powers, formal notice to the parties, arbitrator’s oaths, and the time necessary to render awards. See General Statutes §§ 52-411 through 52-416. The record does not reveal that any of these powers were exercised or that a hearing that met any of the statutory requirements for an arbitration was held. We conclude that the intent of the parties, as evidenced by the language of their agreement, was to provide for an appraisal subject to enforcement in a separate plenary action, rather than an arbitration award enforceable through confirmation by the trial court.

The judgment is affirmed.

In this opinion the other judges concurred.

       The second clause of the agreement states: “2. Determination of Purchase Price. The Sellers shall within fourteen (14) days of the execution of this Agreement by both parties appoint an appraiser of their choice and the Buyer shall within the same period appoint an appraiser of its choice. The two (2) appraisers shall independently determine the fair market value of the Sellers’ shares of stock as of September 30, 1989, the date of the most recent financial data of the Buyer. The Buyer shall provide to T.M. Byxbee Company reasonable access to all business and financial data . . . on or before November 13, 1989. On or before November 30, 1989, said T.M. Byxbee Company shall request any additional information it reasonably feels is necessary, and within One Hundred Twenty (120) days of receipt thereof, Sellers’ appraiser and Buyers’ appraiser shall then meet to compare their respective appraisals to arrive at a consensus as to the fair market value of the Sellers’ shares of stock. If within fifteen (15) days after such meeting, the appraisers shall be unable, after making a good faith effort, to agree upon an appropriate valuation, they shall by mutual agreement within fifteen (15) additional days select a third appraiser to whom the matter shall be submitted. . . . After giving each appraiser full opportunity to be heard, the third appraiser shall then make its own independent determination of the fair market value of the Sellers’ shares of stock, which valuation shall be final and binding upon all parties. . . .”

       The letter states in full: “On December 6,1990,1 reported to you that I had reached a preliminary conclusion regarding the Fair Market Value of 264 shares of Seaboard, Inc. owned as of September 30, 1989 by Stephanie J. Jacob and the Estate of George J. Jacob. I indicated that it was my opinion that the Fair Market Value per share as of September 30, 1989 would have been between $15,200 and $15,650.1 further indicated that, if your clients were unable to agree on a price within this range, I would subsequently conclude a specific Fair Market Valué, and it would be somewhere within this range. It is my understanding that, on December 24, 1990, your clients agreed on a price of $15,425 per share. Please be advised that it is my opinion that, as of September 30,1989, a price per share of $15,425 for the 264 shares of Seaboard, Inc. is not an unreasonable representation of the Fair Market Value of the shares.”

       General Statutes § 52-408 provides: “An agreement in any written contract, or in a separate writing executed by the parties to any written contract, to settle by arbitration any controversy thereafter arising out of such contract, or out of the failure or refusal to perform the whole or any part thereof . .'. or an agreement in writing between two or more persons to submit to arbitration any controversy existing between them at the time of the agreement to submit, shall be valid, irrevocable and enforceable, except when there exists sufficient cause at law or in equity for the avoidance of written contracts generally.”

       Because we conclude that the agreement of the parties did not evidence an intent to arbitrate a dispute, we need not reach the issue of whether the letter of the appraiser; see footnote 2, supra; was the equivalent of an arbitrator’s award pursuant to General Statutes § 52-426 (b). We also need not decide whether that letter was a settlement by the parties of their dispute prior to the rendition of an award by an arbitrator. See M. Domke, Commercial Arbitration § 28.03, p. 422.