author: Lavery, J.

text:
    S.M.S. Textile Mills, Inc. v. Brown, Jacobson, Tillinghast, Lahan and King, P.C., et al.
    (11655)
    Dupont, C. J., O’Connell and Lavery, Js.
    Argued May 5
    decision released September 7, 1993

      Peter A. Kelly, for the appellant (plaintiff).

      Karen P. Blado, with whom, on the brief, were Amy S. McCabe and Christopher L. Brigham, for the appellee (named defendant).

      Albert Zakarian, with whom, on the brief, was Margaret J. Strange, for the appellee (defendant Reid and Riege, P.C.).
   Lavery, J.

The plaintiff appeals from the judgment of the trial court granting the defendants’ motions for summary judgment in this legal malpractice action. The plaintiff claims that the trial court improperly (1) granted the defendants’ motions for summary judgment because it failed to recognize the existence of disputed issues of material fact regarding the existence and length of the attorney-client relationship between the plaintiff and each defendant, (2) sustained the objection by the defendant Reid and Riege, P.C., to the plaintiff’s request for leave to amend the complaint, and (3) granted the motion filed by the defendant Brown, Jacobson, Tillinghast, Lahan and King, P.C. (Brown and Jacobson), to strike the plaintiff’s claims under the Connecticut Unfair Trade Practices Act (CUTPA). General Statutes § 42-110a et seq. We affirm the judgment of the trial court.

The following facts were presented to the trial court by way of the pleadings and documents accompanying the motion for summary judgment. Prior to October, 1986, Lawrence Zabel was the sole owner of the stock of the plaintiff textile company located in Norwich. As Zabel neared retirement, he considered selling the textile company, but he did not want to sell it to an outside group. There were four long-term employees upon whom Zabel had relied over the years for whom he wanted to provide when he sold the company. Initially, Zabel considered selling the company to all four employees. One of the employees, Francis A. Flynn II, was reluctant, however, to form a partnership with the other three. Zabel suggested a plan whereby he would sell the company to Flynn and his son, and the other three employees would, as a condition of the sale, be provided with specified percentage shares in the business through an employee stock ownership plan. Flynn and his son rejected this plan as well.

Zabel’s attorney at the law firm of Brown and Jacobson then suggested performance share agreements to benefit the three nonbuyer employees. Under the performance share agreements, the Flynns would own all of the voting stock while the other three employees would still share in the profits of the company. The performance share agreements provided a percentage cap, but did not provide for an alternative specific dollar cap.

Brown and Jacobson’s role in the transaction was to prepare the documents that structured the transaction. Reid and Riege’s role in the transaction was to represent the Flynns by ensuring that the documents drafted by Brown and Jacobson were consistent with the deal negotiated between the Flynns and Zabel, and by affirming that the contracts accurately reflected the understanding the parties had reached.

The performance share agreements were ultimately executed in October and December of 1986. After the execution of the sale and performance share agreements, the company prospered well beyond the owners’ expectations. As a result, the minimum dollar amounts stated in the agreements did not apply, and the maximum limit of 7 percent owed to one of the nonowner employees reached a figure in excess of the $25,000 alternative expressed in the agreement. The plaintiff refused to pay the sums due under the performance share agreements to the nonowner employees. The plaintiff brought this action against both defendants in July, 1990.

In March, 1992, both defendants filed summary judgment motions claiming that the plaintiff failed to bring its action within the three year period established by the applicable statute of limitations. The trial court granted the motions, and this appeal followed.

The plaintiff’s first claim is that the trial court improperly granted the defendants’ motions for summary judgment. Specifically, the plaintiff argues that the trial court should have recognized the “continuous representation rule” and found that the plaintiff s cause of action was not time barred by Connecticut’s three year statute of limitations for tort actions, General Statutes § 52-577.

“Summary judgment must be rendered if ‘the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.’ Practice Book § 384; Cummings & Lockwood v. Gray, 26 Conn. App. 293, 296-97, 600 A.2d 1040 (1991). ‘[T]he party opposing the motion [for summary judgment] must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue. . . . The mere presence of an alleged adverse claim is not sufficient to defeat a motion for summary judgment. . . . Rather, the [nonmoving party] must recite specific facts . . . which contradict those stated in the [moving party’s] affidavits and documents. ... In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . .’ (Internal quotation marks omitted.) Farmington v. Dowling, 26 Conn. App. 545, 549, 602 A.2d 1047, cert. granted on other grounds, 221 Conn. 921, 608 A.2d 687 (1992).” Real Estate Auctions, Inc. v. Senie, 28 Conn. App. 563, 566-67, 611 A.2d 452 (1992).

In this case, each defendant moved separately for summary judgment. The trial court ruled on Reid and Riege’s motion on August 6,1992, and on Brown and Jacobson’s motion on August 19,1992. The trial court did not issue a memorandum of decision on the motions, but did comment in its order on the motion of Reid and Riege: “This action is barred by the statute of limitation § 52-577 . . . .” Section 52-577 applies to any action in tort. The three year statute of limitations for tort claims applies in cases in which the plaintiff alleges legal malpractice. Shuster v. Buckley, 5 Conn. App. 473, 477, 500 A.2d 240 (1985); Nickerson v. Martin, 34 Conn. Sup. 22, 374 A.2d 258 (1976).

Section 52-577 is an occurrence statute, meaning that the time period within which a plaintiff must commence an action begins to run at the moment the act or omission complained of occurs. Our Supreme Court stated in Fichera v. Mine Hill Corporation, 207 Conn. 204, 212, 541 A.2d 472 (1988): “In construing our general tort statute of limitations, General Statutes § 52-577, which allows for an action to be brought within three years ‘from the date of the act or omission complained of,’ we have concluded that the history of that legislative choice of language precludes any construction thereof delaying the start of the limitation period until the cause of action has accrued or the injury has occurred. Prokolkin v. General Motors Corporation, [170 Conn. 289, 294-97, 365 A.2d 1180 (1976)].”

In response to the defendants’ motions for summary judgment, the plaintiff submitted a brief outlining a continuous representation theory under which its legal malpractice action would not be barred by § 52-577. On appeal, the plaintiff urges us to adopt the continuous representation theory.

The plaintiff concedes, correctly, that the continuous representation theory that it urges us to adopt has never been discussed in an opinion by this court or our Supreme Court. In other jurisdictions, the “continuous representation rule” has been defined as follows: it “tolls the statute of limitations or defers accrual of the cause of action while the attorney continues to represent the client and the representation relates to the same transaction or subject matter as the allegedly negligent acts.” Wall v. Lewis, 393 N.W.2d 758, 762 (N.D. 1986).

It is undisputed that the defendant Brown and Jacobson did not represent the plaintiff in the performance share agreements transaction, but represented the prior sole shareholder, Zabel, and, in fact, told the plaintiff to get another attorney. It is also undisputed that Reid and Riege represented the plaintiff only for the plaintiffs purchase of the stock and all ancillary agreements, including the performance share agreements, and ceased to represent the plaintiff within two or three months of October, 1986.

In this case, the plaintiff claims that the trial court improperly refused to recognize the continuous representation rule when it granted the defendants’ motions for summary judgment. The plaintiff claims that at the time the defendants moved for summary judgment, a material issue of fact remained in dispute. That material issue, according to the plaintiff, was the existence and duration of the attorney-client relationship between it and the defendant law firms. The plaintiff then argues that the trial court improperly refused to apply the continuing representation rule, because, had the issues of the existence and duration of the attorney-client relationship been argued and decided in favor of the plaintiff, the plaintiff’s action would not be time barred by the statute of limitations. We hold that the trial court properly determined that no material issues remained in dispute, and properly granted summary judgment. The record clearly indicates that the defendants’ latest actions complained of by the plaintiff took place in late 1986. As we have stated, our statute of limitations is an occurrence statute. The last acts complained of took place in the fall of 1986, while the complaint in this action was filed in July, 1990. More than three years had passed since the occurrence of the acts complained of; therefore, the trial court correctly concluded that the action was time barred.

The plaintiff asserts that the foundations for the adoption of the continuous representation rule were laid in our Supreme Court’s opinion in Fichera v. Mine Hill Corporation, supra. The Fichera court wrote: “Where we have upheld a finding that a duty continued to exist after the cessation of the ‘act or omission’ relied upon, there has been evidence of either a special relationship between the parties giving rise to such a continuing duty or some later wrongful conduct of a defendant related to the prior act. See Giglio v. Connecticut Light & Power Co., [180 Conn. 230, 242, 429 A.2d 486 (1980)] (‘repeated instructions and advice given to the plaintiff by the defendant’ concerning a furnace it had previously converted and left in a defective condition); Giambozi v. Peters, 127 Conn. 380, 385, 16 A.2d 833 (1940) (‘[w]hen . . . injurious consequences arise from a course of treatment [by a physician], the statute does not begin to run until the treatment is terminated’); cf. Handler v. Remington Arms Co., [144 Conn. 316, 321, 130 A.2d 793 (1957)] (duty to warn of danger of defective cartridge, ‘an inherently dangerous article,’ held to continue in existence until time of injury).” Id., 210. The plaintiff has not demonstrated, either here or in the trial court, that, through a continuing course of conduct, either defendant breached a duty owed the plaintiff after the commission of or in relation to the alleged torts.

The plaintiff next claims that the trial court improperly sustained Reid and Riege’s objection to the plaintiff’s request for leave to amend the complaint. We disagree.

On May 4, 1992, the plaintiff moved to amend its complaint. The proposed amendment alleged that “[d]uring the period from approximately June, 1986 through at least November, 1988, defendant Reid and Riege provided legal services to the plaintiff in connection with the plaintiff’s acquisition of the stock of Norwich Textiles, Inc. and 801 Greenleaf, Inc.” The trial court denied the plaintiffs motion to amend at the same time it granted Reid and Riege’s motion for summary judgment on August 6,1992. On August 19,1992, the plaintiff moved for articulation, requesting that the court clarify the legal basis for granting the defendants’ motions for summary judgment and for sustaining Reid and Riege’s objection to the plaintiff’s motion for leave to amend the complaint. The trial court denied the motion for articulation as to the summary judgment ruling, but granted it as to the request to amend the complaint ruling. The trial court stated: “The request to amend the complaint was denied (the objection having been sustained) on the grounds that (1) the request was made long after the pretrial and would have resulted in unnecessary delays, including the need for further discovery (after extensive discovery); (2) in light of [the] plaintiff’s previous pleadings, the request was a rather disingenuous attempt to avoid the summary judgment motion.” The plaintiff claims that the trial court abused its discretion in sustaining Reid and Riege’s objection to the motion to amend.

A trial court has wide discretion in granting or denying amendments of pleadings and rarely will this court overturn the decision of the trial court. Hanson Development Co. v. East Great Plains Shopping Center, Inc., 195 Conn. 60, 67, 485 A.2d 1296 (1985); Citizens National Bank v. Hubney, 182 Conn. 310, 312-13, 438 A.2d 430 (1980). This court will not interfere with the decision of a trial court not to permit an amendment unless an abuse of discretion is clearly evident. Hanson Development Co. v. East Great Plains Shopping Center, Inc., supra; DuBose v. Carabetta, 161 Conn. 254, 263, 287 A.2d 357 (1971). Practice Book § 176 provides in pertinent part that “[t]he court may restrain such amendments so far as may be necessary to compel the parties to join issue in a reasonable time for trial. If the amendment occasions delay in the trial or inconvenience to the other party, the court may award costs in its discretion in his favor. ...”

In this case, the motion to amend was filed after discovery was completed, and, in fact, after the motions for summary judgment were filed. In its articulation, the trial court, which was familiar with the progress of the case and the facts and issues in question, stated that the motion to amend would create unnecessary delays if granted, and that the motion was a disingenuous attempt to avoid summary judgment. Nothing in the record indicates that the trial court’s ruling was incorrect or in any way an abuse of discretion.

The plaintiff last claims that the trial court improperly granted Brown and Jacobson’s motion to strike the CUTPA counts from the plaintiff’s complaint.

In its original complaint, the plaintiff alleged that Brown and Jacobson’s negligence and simultaneous representation of the plaintiff and Zabel constituted a CUTPA violation. Brown and Jacobson moved to strike the plaintiff’s CUTPA claim under Practice Book § 152. The trial court, Wagner, J., granted the motion to strike and issued a memorandum of decision on February 28, 1991. The trial court specifically held that the plaintiff’s allegations regarding a conflict of interest did not provide a basis for finding “immoral, unethical, oppressive or unscrupulous” conduct on the part of Brown and Jacobson as required under CUTPA. The trial court further found that the plaintiff did not plead its allegations with sufficient particularity to sustain its CUTPA claim. Following the trial court’s granting of Brown and Jacobson’s motion to strike, the plaintiff amended the CUTPA count of its complaint. The sole change in the amended CUTPA count was the addition of the following statement: “The acts of defendant Brown and Jacobson, as set forth in paragraph 5 above, constituted a pattern or course of unfair or deceptive acts and practices.” Brown and Jacobson again moved to strike the CUTPA count, and the trial court, Aronson, J., granted the motion on May 21,1991. The trial court found that the amended CUTPA count was substantially the same as the original CUTPA count, and held that the earlier decision granting the motion to strike was the law of the case.

“A motion to strike challenges the legal sufficiency of a pleading. Mingachos v. CBS, Inc., 196 Conn. 91, 108, 491 A.2d 368 (1985). In reviewing the granting of a motion to strike, we take the facts alleged in the plaintiff's complaint and construe the complaint in the manner most favorable to the plaintiff. Mozzochi v. Beck, 204 Conn. 490, 491, 529 A.2d 171 (1987). This includes the facts necessarily implied and fairly provable under the allegations. ... It does not include, however, the legal conclusions or opinions stated in the complaint. . . . Coste v. Riverside Motors, Inc., 24 Conn. App. 109, 111, 585 A.2d 1263 (1991); see Amodio v. Cunningham, 182 Conn. 80, 83, 438 A.2d 6 (1980). If facts provable in the complaint would support a cause of action, the motion to strike must be denied. Stradmore Development Corporation v. Commissioners, 164 Conn 548, 550-51, 324 A.2d 919 (1973).” (Internal quotation marks omitted.) Westport Bank & Trust Co. v. Corcoran, Mallin & Aresco, 221 Conn. 490, 495-96, 605 A.2d 862 (1992).

In ruling on Brown and Jacobson’s first motion to strike, the trial court, in a well reasoned memorandum of decision, noted that “[t]he gravamen of the third count is contained in Paragraph 5 (e) which alleges that the defendant ‘represented both sides to the contemplated transaction simultaneously which resulted in a material conflict of interest.’ ” The trial court then set out the legal test for whether an unfair trade practice has occurred, as stated by our Supreme Court in A-G Foods, Inc. v. Pepperidge Farm, Inc., 216 Conn. 200, 215, 579 A.2d 69 (1990). The third prong of that test is whether a practice is “immoral, unethical, oppressive, or unscrupulous.” The trial court noted that Brown and Jacobson asserted that the plaintiff failed to allege the third prong, and noted further that the plaintiff argued that if Brown and Jacobson had in fact represented both sides, the third prong was satisfied. The trial court quoted rule 1.7 of the Rules of Professional Conduct, which sets forth the rules for appropriate simultaneous representation, and concluded: “A cursory reading of the rule indicates that not every conflict situation would provide a basis for a finding that the complained of conduct would be ‘immoral, unethical, oppressive or unscrupulous.’ A claim under CUTPA must be pleaded with particularity to allow evaluation of the legal theory upon which the claim is based. Sori-sio v. Lenox, Inc., 701 F. Sup. 950, 962 (D. Conn.), aff’d, 863 F.2d 195 (2d Cir. 1988). Since the third count does not set forth allegations with sufficient particularity to sustain a CUTPA claim, the motion to strike the third count, with its accompanying claims for relief is granted.” The trial court concluded, therefore, that the plaintiff, in its CUTPA claim, did not raise a claim on which relief could be granted because that claim was not presented with legally sufficient specificity. Our careful review of the complaint, taking the facts alleged by the plaintiff in the light most favorable to it, leads us to the same conclusion.

We turn now to Brown and Jacobson’s second motion to strike that followed the plaintiff’s amendment to the complaint, which we quoted above. We conclude that the trial court properly determined that the previous order granting Brown and Jacobson’s motion to strike was the law of the case.

“The law of the case is not written in stone but is a flexible principle of many facets adaptable to the exigencies of the different situations in which it may be invoked. See 18 Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction § 4478. In essence it expresses the practice of judges generally to refuse to reopen what has been decided and is not a limitation on their power. Messenger v. Anderson, 225 U.S. 436, 444, 32 S. Ct. 739, 56 L. Ed. 1152 (1912). . . . Where a matter has previously been ruled upon interlocutorily, the court in a subsequent proceeding in the case may treat that decision as the law of the case, if it is of the opinion that the issue was correctly decided, in the absence of some new or overriding circumstance. State v. Hoffler, 174 Conn. 452, 462-63, 389 A.2d 1257 (1978); State v. Mariano 152 Conn. 85, 91-92, 203 A.2d 305 (1964), cert. denied, 380 U.S. 943, 85 S. Ct. 1025, 13 L. Ed. 2d 962 (1965).” Breen v. Phelps, 186 Conn. 86, 99, 439 A.2d 1066 (1982).

In the present case, Brown and Jacobson moved to strike the CUTPA count of the plaintiff’s complaint. The trial court granted the motion to strike, noting that the count was not pleaded with sufficient specificity. The plaintiff amended the complaint, adding a general statement about a “course of conduct.” Brown and Jacobson moved to strike again. The trial court properly noted that the amended complaint was substantively the same as the previous one, and, applying the law of the case doctrine, granted the second motion to strike. We do not agree with the plaintiff’s assertion that the amended complaint properly alleged a CUTPA claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 52-577 provides: “No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of.”

       The following exchange occurred during the deposition of Francis A. Flynn, which is part of the record, by Albert Zakarian, attorney for Reid and Riege:
      “[Mr. Zakarian]: And after this transaction was over in October of 1986, did you continue to work with Reid and Riege on anything?

        “[Mr. Flynn]: There was some cleanup items that had to be taken care of but then that was the end of it. Because actually we had Brown and Jacobson.
      “Q. For example, is it true that you ceased using Reid and Riege really shortly after this transaction, within two or three months later?
      “A. Yes.
      “Q. And was that because you were unhappy with Reid and Riege’s services or you just had your regular firm and your lawyer you worked with for years, [Brown and Jacobson] would take care of your business?
      “A. I think that’s a true statement. We were comfortable with [Brown and Jacobson]. They were a block away, you could walk to their office. It was close and one of convenience.”

       Practice Book § 152 provides in pertinent part: “Whenever any party wishes to contest (1) the legal sufficiency of the allegations of any complaint, counterclaim or cross claim, or of any one or more counts thereof, to state a claim upon which relief can be granted . . . that party may do so by filing a motion to strike the contested pleading or part thereof. . . .”


source: Caselaw Access Project

license: Public Domain

text:
    Robert Fromer v. Two Hundred Post Associates et al.
    (10786)
    Daly, Laveey and Landau, Js.
    Argued November 2, 1992
    decision released September 14, 1993

      Robert Fromer, pro se, the appellant (plaintiff).

      Mary E. Driscoll, with whom, on the brief, was EdwardB. O’Connell, for the appellee (substitute defendant Federal Deposit Insurance Corporation, receiver of the defendant Saybrook Bank and Trust).
   Lavery, J.

This is an appeal from the dismissal by the trial court of an appeal by the plaintiff, an abutting owner of a condominium, from the granting by the defendant city of New London conservation commission-inland wetlands agency (commission) of a second extension of an inland wetlands permit to the developer, the defendant Two Hundred Post Associates, doing business as Georgetown Associates (Georgetown). We affirm the judgment of the trial court.

The plaintiff claims that the commission did not have the power to grant a second extension, that an inland-wetlands permit does not run with the land, and that estoppel and tolling are not appropriate vehicles to uphold the commission’s decision.

The pertinent facts are as follows: In October, 1987, Georgetown applied to the commission for a permit to conduct a regulated activity, the building of a condominium project, on its property. On December 21, 1987, the permit was granted subject to the developer’s obtaining all necessary zoning permits and meeting various other conditions. The plaintiff, an owner of a condominium unit located on adjoining property, appealed to the trial court from the decision granting the permit. That appeal was dismissed on May 5, 1988.

On April 11, 1988, Georgetown applied to the New London planning and zoning commission for a site plan approval and a coastal site plan approval for a fifty unit residential condominium project. On June 29, 1988, after extensive hearings, that application was approved. The plaintiff in this case also appealed to the trial court from the decision granting the site plan approvals. Judgment in that case was rendered on February 15, 1990, for the defendant. The trial court found that there was ample evidence in the record to justify the site plan approvals.

In December, 1988, the commission granted the defendant Georgetown a one year extension of the inland wetlands permit. On November 13,1989, prior to the expiration of the permit, Georgetown sought an additional one year extension by letter. The commission did not act on the reply until January 8,1990, when it granted the extension retroactive to December 22, 1989, the date on which the first extension expired. This appeal is taken by the plaintiff from the granting of the second extension. Subsequent to the commission’s decision granting the second extension, Georgetown conveyed the subject property to the defendant Saybrook Bank and Trust Company (Saybrook Bank). The trial court granted Saybrook Bank’s motion to be made a defendant and, after hearing the case, found in favor of the commission and Saybrook Bank. In December, 1991, after the trial court’s decision, the Federal Deposit Insurance Corporation (FDIC) became the receiver of Saybrook Bank. The FDIC’s motion to be made a substitute defendant was granted by this court.

We hold (1) that the permit to conduct a regulated activity runs with the land and not with the applicant, and (2) that, on the facts of this case, in which a valid permit was issued to conduct a regulated activity within a specified time period and appeals from the granting of the necessary permits to conduct that activity were not resolved within the time period during which the activity was required to begin, that time period is tolled until all litigation is completed.

The plaintiff argues that an inland wetlands permit is a personal permit attached to the individual applicant that does not attach to the land and follow the title. We disagree. A review of the applicable statutes shows that the permit process is concerned with the property and not the applicant. In enacting ordinances and regulations and in granting, denying or limiting any permit for a regulated activity, an inland wetlands agency is required to consider those factors set forth in General Statutes §§ 22a-41, 22a-42a (d) and 22a-42e.

A permit is issued or denied on the basis of conditions relating to the land such as the topography, soil type, and the nature, extent, and effect of the proposed activity on the land. The factors in the statutes that can be considered by the inland wetlands agencies pertain only to the land and not to the applicants or owners.

Our Supreme Court has recognized the legal principle that a zoning variance runs with the land and not with the property owner. In Garibaldi v. Zoning Board of Appeals, 163 Conn. 235, 239, 303 A.2d 743 (1972), the court said: “By its very definition, a variance is granted with respect to a particular piece of property; it can be enjoyed not only by the present owner but by all subsequent owners. 2 Anderson, American Law of Zoning § 14.29, p. 662.” See T. Tondro, Connecticut Land Use Regulation (2d Ed. 1992), p. 124. Courts in other jurisdictions have recognized that conditional use permits run with the land and not with the owner. See County of Imperial v. McDougal, 19 Cal. 3d 505, 564 P.2d 14, 138 Cal. Rptr. 472 (1977); Northpointe Plaza v. Rochester, 457 N.W.2d 398, 401 (Minn. App. 1990).

We hold that an inland wetlands permit is concerned solely with the property to be regulated, and that the change of ownership does not affect the validity of the permit.

The plaintiff next claims that the permit has expired by the passage of time and that the commission had no authority to grant the second extension from which this appeal arises. Georgetown first applied for the inland wetlands permit, and it was granted, in December, 1987, and the plaintiff appealed. The wetlands permit was granted subject to zoning approval. In April, 1988, Georgetown applied simultaneously for zoning site plan approval and coastal area management site plan approval, which the New London planning and zoning commission granted. The plaintiff immediately appealed from that decision also. In December, 1988, the commission granted a one year extension of the wetlands permit, and, in January, 1990, the commission granted a second extension retroactive to December, 1989, from which the present appeal was taken. The appeal from the granting of the inland wetlands permit was dismissed in May, 1988, and the appeal from the site plan approvals was dismissed on February 15, 1990. The defendants have been involved with the present application for an inland wetlands permit since 1987 because of the appeals brought by a single plaintiff.

The plaintiff argues that since there was no stay in effect, the defendant Georgetown, and its successors, could have begun construction. We, however, agree with the court in McGavin v. Zoning Board of Appeals, 26 Conn. Sup. 251, 255, 217 A.2d 229 (1965), that to have begun construction during the pendency of the appeal might have been considered “reckless conduct” on the part of the landowner. This is especially true in this case because the wetlands permit was conditioned on obtaining the necessary zoning permits, and there were two appeals from the initial granting of the permits. If the defendant applicants had disturbed the wetlands and either of the appeals were lost so as to void the wetlands permit, they would have had to restore the wetlands.

The plaintiff further argues that the regulation in effect at the time of the original granting of the permit controls, allowing only one extension, rather than the one that went into effect on June 15, 1990, which allows unlimited extensions. He bases his claim on General Statutes § 22a-42e. See footnote 3.

The obvious remedy is to toll the one year duration of the permit until all appeals are decided. See T. Ton-dro, supra, p. 521. “Cases from other states hold that an appeal from the granting of an issuance or permit is a defense to the fact that the successful applicant did not use the permit or variance within the time period otherwise provided by law.” R. Fuller, Land Use Law and Practice (1993) § 24.10, p. 453.

“The Massachusetts Supreme Court in Belfer v. Building Commissioner of Boston [363 Mass. 439, 294 N.E.2d 857 (1973)] held that where zoning variances were granted and could not as a practical matter be used during the pendency of an appeal by persons challenging the granting of the variances, that the filing of the appeal from the granting of the variance tolled the running of the two-year period during which variances had to be used and building permits had to be issued. The court concluded that such a rule was essential, stating: ‘Otherwise a variance which was lawfully awarded can be frustrated by the delay inherent in an appeal. Unless an appeal tolls the time period, many variances would be meaningless.’ [Id.]” R. Fuller, supra; see also Smith v. Board of Appeals, 366 Mass. 197, 316 N.E.2d 501 (1974).

In Tantimonaco v. Zoning Board of Johnston, 102 R.I. 594, 599-600, 232 A.2d 385 (1967), the Supreme Court of Rhode Island rejected a contention by adjacent landowners that the time for commencing construction under a building permit should continue to run after they initiated an appeal that challenged the zoning permit allowing the construction of a gas station. The court said: “As heretofore noted, petitioners challenged the validity of that permit by seeking a review of the board’s decision with the filing of their petition for cer-tiorari on June 8, 1965. Although the filing of such a petition does not act as a stay, G. L. 1956, § 45-24-20, common prudence understandably acts as a brake against incurring obligations, the benefits of which would be cancelled by an adverse decision of this court. Apart from the question as it may be affected by a change in the zoning regulations, we think it clear that the requirement of activating a permit set forth in an ordinance does not apply during such time as the legality of a permit is open to question by reason of litigation amounting to an appeal from the issuance thereof.” Id.

In Cranston v. Carpionato, 115 R.I. 63, 340 A.2d 134 (1975), an individual challenged the validity of certain building permits, and on appeal contended that the permits were revoked by a zoning ordinance that required that construction be commenced within ninety days of the date of the permit. The Supreme Court of Rhode Island rejected this argument, stating: “Although we agree with the city that Tantimonaco v. Zoning Board [of Johnston], supra, is factually distinguishable from this case, we remain unconvinced that its reasoning is inapplicable here. In that case, we recognized the unlikelihood that a man of common prudence would incur obligations the benefits of which might be can-celled by an adverse decision of this court, and we consequently concluded that an ordinance requiring the activation of a building permit within a fixed period ought not to apply ‘. . . during such time as the legality of a permit is open to question by reason of litigation amounting to an appeal from the issuance thereof. [Id., 600].’ ” Cranston v. Carpionato, supra, 67. The Rhode Island Supreme Court reasoned that since the validity of the building permits would be uncertain during the period of litigation, that time should be excluded in computing the time period within which construction was to commence.

In Presault v. Wheel, 132 Vt. 247, 253-54, 315 A.2d 244 (1974), the Vermont Supreme Court stated: “We conclude that the more soundly reasoned cases from other jurisdictions support the proposition that where a valid permit is issued for a specified period, and where actual construction is delayed by litigation, involving parties who have standing to oppose construction, past that time, a permittee otherwise proceeding in good faith is entitled to reissuance of that permit, even where the zoning was meanwhile changed so that the project is nonconforming.” “For this Court to hold that a developer, proceeding as expeditiously as possible, must be denied reissuance of the permit he first applied for and received solely because his application for a second essential permit resulted in litigation of more than a year’s duration would go beyond the desired and worthwhile goal of controlling development. Such a holding would make development a pure gamble; success would depend on the whim of adversaries to litigate or not. This result would contravene our announced policy that a good faith developer should be able to proceed with assurance.” Id., 255.

The plaintiff argues that we should adopt the reasoning of the trial court in ASL Associates v. Proch, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 370080 (December 12, 1990), which rejected the tolling of the time limitations on permits saying that General Statutes (Rev. to 1989) § 8-8 provides for a restraining order, and that, had good cause been shown, an order tolling the nine month period could have been issued. Id., 30. We reject this reasoning because there is a myriad of agencies from which many property owners must obtain approval, and, in many instances, one permit is dependent on another, as in this case. We note, for example, that permits or approval are needed with regard to zone changes, special permits, variances, inland wetlands, historic districts, site plans, coastal area management, subdivisions, and water protection ordinances. In the last six years, the method of appeal under the Inland Wetlands Act has changed three times.

There is no legislative history to § 8-8 as originally passed in 1925 before the advent of the myriad of land use regulatory bodies that exist today. We hold that the statute provides in cases covered by § 8-8 a means for an appellant to stay any action on the approved application until the appeal is decided. Since there is a void in the statutory scheme for the protection of the appellee developer in this case, we hold that on the facts of this case the time limitations on the permit are tolled until this litigation is terminated.

In this case, the defendant Georgetown and its successors, the Saybrook Bank and the FDIC, complied with all the applicable regulations in obtaining their permits, and the plaintiff exercised his legal right opposing the granting of the permits before the appropriate boards and the courts. The defendant Georgetown and its successors prevailed both before the regulating agencies and in the courts. Yet, six years later, the plaintiff is before this court arguing that because of the passage of time the inland wetlands permit has expired.

The regulatory process is not designed to be a spider’s web, snaring one who follows all the regulations and statutes, obtains all the necessary permits, and successfully defends a series of appeals, but then loses his right to proceed because the passage of time has caused the permits to expire.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant Saybrook Bank and Trust Company is the successor in title of Saybrook Bank. The Federal Deposit Insurance Corporation is the receiver of the defendant Georgetown.

       The conditions on which the permit was granted in December, 1987, were listed in a letter, dated December 22, 1987, from James R. McDermott, technical advisor to the New London conservation commission to Arnold Voloshin of Georgetown. That letter stated:

        “Hear Mr. Voloshin:
      “The City of New London Conservation Commission/Inland Wetlands Agency voted at its meeting of December 21,1987 to approve the application of your Georgetown Square Condominium Project as depicted in your plans revised through December 21,1987 and to give this application a Class B classification, such approval to be contingent upon the following:
      “1. Submission to the Commission of single limit combined public liability insurance and property damage insurance, naming the City of New London as an additional insured, in an amount not less that $1,000,000.00 for injuries, including wrongful death and property damage; such insurance to remain valid for a period of one year after the completion of the project.
      “2. Submission to the Commission of a performance bond in an amount of $200,000.00 unconditionally guaranteeing the installation of the entire storm water drainage system as designed by the Engineer and approved by the Commission; such bond to remain in effect until such drainage system is satisfactorily completed and accepted by the Commission or its agent.
      “3. If any activity authorized by this permit also needs zoning or subdivision approval, special permit, variance, or special exception; no work pursuant to the wetland permit is authorized until such approval is issued.
      “4. If no significant activity has commenced within one year of issuance of this permit, it will become void.
      Yours truly,
      James R. McDermott, P.E.
      Technical Advisor”

       General Statutes § 22a-41 provides: “factors for consideration of COMMISSIONER. FINDING OF NO FEASIBLE OR PRUDENT ALTERNATIVE, (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.”
      General Statutes § 22a-42a (d) provides: “In granting, denying or limiting any permit for a regulated activity the inland wetlands agency shall consider the factors set forth in section 22a-41, and such agency shall state upon the record the reason for its decision. In granting a permit the inland wetlands agency may grant the application as filed or grant it upon such terms, conditions, limitations or modifications of the regulated activity, designed to carry out the policy of sections 22a-S6 to 22a-45, inclusive. No person shall conduct any regulated activity within an inland wetland or watercourse which requires zoning or subdivision approval without first having obtained a valid certificate of zoning or subdivision approval, special permit, special exception or variance or other documentation establishing that the proposal complies with the zoning or subdivision requirements adopted by the municipality pursuant to chapters 124 to 126, inclusive, or any special act. Any permit issued under this section shall be valid for at least two years and the agency may provide for the permit to be valid for up to five years, provided the permittee may apply for and the agency may, at its discretion, grant a renewal of such permit for successive periods of time not to exceed an additional five years. The agency may suspend or revoke a permit if it finds after giving notice to the permittee of the facts or conduct which warrant the intended action and after a hearing at which the permittee is given an opportunity to show compliance with the requirements for retention of the permit, that the applicant has not complied with the conditions or limitations set forth in the permit or has exceeded the scope of the work as set forth in the application. The applicant shall be notified of the agency’s decision by certified mail within fifteen days of the date of the decision and the agency shall cause notice of their order in issuance, denial, revocation or suspension of a permit to be published in a newspaper having a general circulation in the town wherein the wetland and watercourse lies. In any case in which such notice is not published within such fifteen-day period, the applicant may provide for the publication of such notice within ten days thereafter.”
      General Statutes § 22a-42e provides: “application filed prior to CHANGE IN INLAND WETLANDS REGULATIONS NOT REQUIRED TO COMPLY with CHANGE, exceptions. An application filed with an inland wetlands agency which is in conformance with the applicable inland wetlands regulations as of the date of the decision of such agency with respect to such application shall not be required thereafter to comply with any change in inland wetlands regulations, including changes to setbacks and buffers, taking effect on or after the date of such decision and any appeal from the decision of such agency with respect to such application shall not be dismissed by the superior court on the grounds that such a change has taken effect on or after the date of such decision. The provisions of this section shall not be construed to apply (1) to the establishment, amendment or change of boundaries of inland wetlands or watercourses or (2) to any change in regulations necessary to make such regulations consistent with the provisions of this chapter as of the date or such decision.”

       General Statutes § 22a-44 (b), which concerns penalties and court orders in connection with violations of the Inland Wetlands and Watercourses Act, provides in pertinent part: “The superior court, in an action brought by the commissioner, municipality, district or any person, shall have jurisdiction to restrain a continuing violation of said sections, to issue orders directing that the violation be corrected or removed and to assess civil penalties pursuant to this section. All costs, fees and expenses in connection with such action shall be assessed as damages against the violator together with reasonable attorney’s fees which may be allowed, all of which shall be awarded to the commissioner, municipality, district or person which brought such action. The moneys collected pursuant to this section shall be used by the commissioner of environmental protection, to restore the affected wetlands or watercourses to their condition prior to the violation, wherever possible.”

       The regulation, cited by the plaintiff, that was in effect at the time the original permit was granted, § 8, of the New London inland wetlands regulations provided: “8.1 If no significant activity has commenced within one year of the issuance of permit, said permit is void.
      “8.2 The Commission may extend a permit for an additional year upon written request from the permit holder. Such request shall be considered by the Commission at a regularly scheduled Commission meeting and acted upon with[in] thirty days.”

       The new regulation, § 12.7, which became effective on June 15, 1990, provides: “The duration of any permit shall be for one (1) year unless otherwise specified in the permit or extension by the Commission. Permit extension shall be at the discretion of the Commission and may be subject to the calling of an additional public hearing. All permits shall expire upon the completion of the acts specified herein.”
      We note that General Statutes § 22a-42a (d) provides in pertinent part: “Any permit issued under this section shall be valid for at least two years and the agency may provide for the permit to be valid for up to five years, provided the permittee may apply for and the agency may, at its discretion, grant a renewal of such permit for successive periods of time not to exceed an additional five years. . . .” See footnote 3.

         General Statutes (Rev. to 1989) § 8-8 (b) provided in pertinent part: “The appeal shall state the reasons upon which it has been predicated and shall not stay proceedings upon the decision appealed from, but the court to which such appeal is returnable may, on application, on notice to the board and on cause shown, grant a restraining order.” The language regarding a restraining order has since been placed under subsection (g) of § 8-8, which provides: “The appeal shall state the reasons on which it has been predicated and shall not stay proceedings on the decision appealed from. However, the court to which the appeal is returnable may grant a restraining order, on application, and after notice to the board and cause shown.”

       General Statutes § 22a-43 governs appeals under the Inland Wetlands and Watercourses Act. Section 22a-43 has been amended three times over the past six years. See Public Acts 1991, No. 91-136, Public Acts 1989, No. 89-356 and Public Acts 1987, No. 87-338.

       See T. Tondro, Connecticut Land Use Regulation (2d Ed. 1992), p. 522.


author: Foti, J.

text:
    State of Connecticut v. John Cecarelli
    (10635)
    (10636)
    Dupont, C. J., Foti and Schaller, Js.

      Argued June 11
    decision released September 21, 1993

      Alexander H. Schwartz, special public defender, for the appellant-appellee (defendant).

      Mitchell S. Brody, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Maxine Wilensky, assistant state’s attorney, for the appellee-appellant (state).
   Foti, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of three counts of sale of cocaine by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b), and one count of possession of marijuana in violation of General Statutes § 21a-279 (c). He claims that the trial court improperly (1) failed to hold an evidentiary hearing before sustaining a witness informant’s blanket invocation of the privilege against self-incrimination, as asserted through the witness’ attorney, and (2) refused to strike the testimony of a state’s witness despite the state’s intentional destruction of the witness’ prior statements. The state appeals challenging the trial court’s decision to dismiss, after guilty verdicts, the defendant’s conviction of possession of cocaine with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b), and possession of cocaine in violation of General Statutes § 21a-279 (a). The state claims that the trial court should have merged, rather than dismissed, the convictions.

The jury reasonably could have found the following facts. In May, 1990, David Ciarlelli, an undercover patrol officer assigned to the narcotics unit of the Ham-den police department, began working with an informant, Anthony Gentile. Gentile, who had been arrested in North Haven on April 25, 1990, and had outstanding charges there, was a confidential informant for the North Haven police department, and was willing to cooperate with the Hamden police also. Gentile told Ciarlelli that the defendant, an acquaintance of Gentile, was involved in selling drugs. Ciarlelli ran a record check at that time and found that the defendant had never been arrested.

Over the next few months, Ciarlelli met with Gentile several times. Ciarlelli also conducted periodic drive-by surveillance of the defendant’s house in Ham-den but did not notice any suspicious activity there. On August 10, 1990, Ciarlelli, acting undercover, drove with Gentile to a parking lot near a soccer field in North Haven, where they met the defendant. Gentile introduced Ciarlelli to the defendant as his friend, Dave. Ciarlelli then observed what he believed to be a controlled buy of cocaine from the defendant, conducted by Gentile for the North Haven police department.

On August 16, 1990, Gentile called the defendant from the North Haven police department and arranged a purchase of narcotics. Ciarlelli and Gentile drove together to the defendant’s house. The defendant gave a plastic bag, which he had removed from his sock, to Gentile in exchange for money; Gentile later gave the bag to the North Haven police department. Ciarlelli then told the defendant he wanted to purchase a gram of cocaine. The defendant went into his house and returned with a plastic bag containing a white powder, which he then sold to Ciarlelli for $100 of Hamden police department funds. The powder purchased by Ciarlelli tested positive for cocaine.

On August 29,1990, Ciarlelli telephoned the defendant from the Hamden police department to arrange a purchase of an “eight-ball,” the equivalent of two grams of cocaine. The defendant agreed and told Ciarlelli to drive over to his house. Ciarlelli drove there alone. On this occasion, he wore a transmitter that enabled Hamden police officers to monitor and tape the conversation between him and the defendant. The defendant met Ciarlelli at the door and, in exchange for $200 of department funds, sold him two plastic bags of a substance that later tested positive for cocaine. In response to Ciarlelli’s query, the defendant gave the officer prices for various quantities of cocaine. Before leaving, Ciarlelli asked the defendant if he could purchase another eight-ball on August 31, 1990. The defendant agreed.

On August 31,1990, Ciarlelli telephoned the defendant to inquire about the eight-ball he had ordered. The defendant said he had it and that Ciarlelli should come and get it. Ciarlelli, again wearing a transmitter that permitted monitoring and taping of the transaction, proceeded to the defendant’s house. Upon Ciarlelli’s arrival, the defendant went into the house and returned with a plastic bag containing a white powder that he sold to Ciarlelli for $200 of police department funds. This substance also tested positive for cocaine.

On September 7, 1990, officers from the Hamden police department and the statewide narcotics task force executed a search warrant at the defendant’s house. A quantity of cocaine, two marijuana seedlings, drug paraphernalia, and several firearms were seized. The defendant was arrested outside of his house prior to the search.

Gentile was arrested by North Haven police on September 13, 1990, on unrelated felony charges.

I

The Defendant’s Appeal

The defendant first claims that Ms state and federal constitutional due process rights to a fair trial and to establish a defense were violated by the trial court’s failure to conduct a hearing on Gentile’s intent, as represented by his attorney, to make a blanket invocation of his fifth amendment privilege against self-incrimination.

The defendant testified on his own behalf and presented the following evidence in support of his defense of entrapment. The defendant claimed that he met Gentile in 1981 but had not seen him for several years until 1990. In April or May, 1990, the defendant’s fiancee, Roseann DeGolo, was attending drug rehabilitation meetings in North Haven; Gentile was also attending these meetings and he asked DeGolo to purchase drugs for him. Gentile telephoned DeGolo frequently to press this request. The defendant interceded on several occasions, demanding that Gentile stay away from DeGolo. On two or three occasions, however, the defendant purchased drugs and sold them to Gentile, in an effort to keep him from bothering DeGolo. The defendant stopped selling drugs to Gentile after DeGolo stopped attending the meetings.

According to the defendant, Gentile persisted in contacting him between May and July, 1990, calling his house as many as seven times a week to ask him to buy drugs. The defendant claimed that during this time he withstood Gentile’s demands. On August 1,1990, however, the defendant met with Gentile in North Haven. Gentile proposed a plan whereby he would obtain drugs from an East Haven dealer, sell them to the defendant, and then buy them back. Gentile said that his friend, Dave, would also buy drugs. The defendant agreed to the proposal. Thereafter, he bought cocaine from Gentile and sold half of it back to him on August 10,1990, when he and Gentile met at a soccer field in North Haven. Ciarlelli was present at that time. The defendant alleged that Gentile bought the remaining cocaine from him around August 12, 1990. The defendant claimed that he again purchased cocaine from Gentile prior to August 16, 1990, the date on which he sold cocaine to both Ciarlelli and Gentile.

The defendant testified that he purchased cocaine again from Gentile some time between August 16 and August 29, 1990; he claimed that he sold part of this cocaine to Ciarlelli on August 29 and the remainder to Gentile some time before that date.

The defendant testified that early in the morning on August 31, 1990, the defendant met Gentile in New Haven and sold cocaine to him. At that time, Gentile allegedly gave him a paper bag containing drug paraphernalia that was seized from the defendant’s house on September 7, 1990. Finally, the defendant claimed that he purchased more cocaine from Gentile on September 6, 1990, which he intended to sell to Ciarlelli. This cocaine, he claimed, was seized from his house on September 7, 1990.

The defendant’s testimony indicated that Gentile was buying, selling and using cocaine during the time he was working with Ciarlelli as a police informant. He also presented a witness who corroborated his testimony that a transaction between him and Gentile occurred prior to the August 16, 1990 sale of cocaine to Gentile and Ciarlelli.

To support his claim that Gentile had induced him to take part in illegal activity, the defendant attempted to cali Gentile as an adverse witness. Both the defendant and the state had issued a writ of habeas corpus ad testificandum for Gentile, and he was in the courthouse on April 29,1991. Gentile did not appear before the trial court; his counsel, John Keefe, appeared on his behalf. Outside the jury’s presence, the trial court asked Keefe whether, if a hearing was held to test the limits of the fifth amendment privilege, Gentile would invoke the privilege regardless of the question he was asked. Keefe said yes. The defendant objected, saying that a hearing with Gentile present was “absolutely essential” to determine if Gentile would invoke the privilege and to assess whether the invocation was proper. The trial court determined, however, that since Gentile’s attorney had said his client would invoke the fifth amendment privilege no matter what questions he was asked, there was no point in holding a hearing. The defendant promptly took an exception to the court’s ruling. He unsuccessfully renewed this claim at a hearing on his posttrial motions for judgment of acquittal and a new trial. We conclude that the hearing was essential.

All persons enjoy a constitutional right of immunity from being compelled to testify against themselves. U.S. Const., amend. V; Conn. Const., art. I, § 8. That right is a personal one. State v. Horwitz, 108 Conn. 53, 58, 142 A. 470 (1928). The privilege against self-incrimination may not be invoked on behalf of another. Couch v. United States, 409 U.S. 322, 327-29, 93 S. Ct. 611, 34 L. Ed. 2d 548 (1973). While the personal nature of this privilege does not prohibit an attorney from claiming it on behalf of a client who is being interrogated in a civil matter, pursuant to General Statutes § 52-199 (b), no such statutory provision permits an attorney to claim the privilege on behalf of a client in a criminal matter. A witness must affirmatively claim this privilege against self-incrimination when taking the stand to testify. State v. Smith, 201 Conn. 659, 664, 519 A.2d 26 (1986). The fifth amendment privilege is not self-executing and must be asserted in a timely fashion. Id. A person who fails to claim the protection of the privilege will not be considered to have been compelled to testify within the meaning of the fifth amendment. United States v. Mania, 317 U.S. 424, 427, 63 S. Ct. 409, 87 L. Ed. 2d 376 (1943). In the present case, Gentile did not personally invoke his privilege against self-incrimination. A hearing was necessary to determine if he would do so.

A hearing was also required, particularly in the circumstances of this case, for the trial court to determine whether Gentile’s claim of privilege against self-incrimination should be sustained. To sustain the privilege, “it need only be evident from the implications of the question, in the context in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result. State v. Simms, [170 Conn. 206, 209, 365 A.2d 821, cert. denied, 425 U.S. 954, 96 S. Ct. 1732, 48 L. Ed. 2d 199 (1976)], citing Hoffman v. United States, [341 U.S. 479, 486-87, 71 S. Ct. 814, 95 L. Ed. 1118 (1951)].” State v. Erhardt, 17 Conn. App. 359, 364, 553 A.2d 188 (1989). Conversely, before refusing to allow the privilege, the trial court must find that the answers to any questions proposed cannot possibly have a tendency to incriminate. Id., 363-64. The privilege against self-incrimination depends on the mere possibility of prosecution. State v. Williams, 200 Conn. 310, 319, 511 A.2d 1000 (1986).

Both the state and the defendant evidently felt that Gentile was a necessary witness in this case. Both had sought his presence at trial. The defendant’s entrapment defense may have caused Gentile to be concerned that his answers to questions pertaining to his possession of drugs or supplying them to the defendant might expose him to criminal liability. While this concern might seem to be well-founded, the court had no opportunity to make a determination of such exposure. The defendant argues that there may have been other areas of inquiry available to him that would not be subject to a valid fifth amendment claim by Gentile and that would corroborate the defendant’s claim of entrapment. It was the duty of the judge, not the witness or his counsel, to determine whether the witness could properly assert the privilege against self-incrimination. State v. Bryant, 202 Conn. 676, 684 n.7, 523 A.2d 451 (1987), citing Hoffman v. United States, supra, 486.

In not conducting a hearing, the trial court here failed to establish, through specific questions posed, the validity of Gentile’s claimed privilege. In upholding the claim of a blanket fifth amendment privilege, the court delegated to Gentile’s attorney its own responsibility to determine if and when Gentile would respond to specific questions, and whether his invocation of the privilege was valid. The defendant claims that he was denied the opportunity to inquire as to whether any charges were pending against Gentile at the time of the alleged entrapment, whether Gentile had been promised anything for his cooperation as an informant for two police departments, or what motivated him to approach the defendant. In general, it was for the court to determine, through a voir dire examination of the witness, outside the jury’s presence, whether a valid privilege was properly claimed as to questions dealing with the scope and extent of Gentile’s actions as a police informant. The court, however, never determined whether this was a nonprivileged area of inquiry. It had previously determined that questions concerning Gentile’s September 13,1990 charges were not a legitimate area of inquiry.

While a question-by-question invocation of the privilege against self-incrimination may not be required under all circumstances, we cannot accept the state’s contention that the sustaining of a blanket privilege claim was appropriate here in view of the proffer made by the defendant. That proffer, which the state argues “provided the trial court with sufficient information to evaluate the blanket assertion of the privilege without engaging in impermissible speculation,” was made after the defendant had been convicted, at a hearing on the defendant’s posttrial motions.

We cannot speculate that the defendant’s entrapment defense may be inextricably bound up with a scheme of criminality on the part of Gentile and that all questions asked of Gentile to corroborate that defense might require answers tending to incriminate him. That determination may be reached only at a hearing for that purpose, which would allow the trial court to explore the basis, if any, of the witness’ refusal to testify, if he does, in fact, invoke his privilege.

The defendant asks that we remand this matter for a new trial. He argues that, even if, after a proper hearing, the trial court determines that Gentile has properly invoked his fifth amendment privilege against self-incrimination, that invocation must also be made before the jury. The defendant argues that not doing so may tend to bolster the state’s case, and that Gentile’s invocation of his privilege before the jury would corroborate, to some degree, the defense of entrapment. We disagree that it is necessary for the jury to see Gentile, if, after a hearing, the trial court determines that he properly invoked his fifth amendment privilege.

“[A] witness may not be called to the stand in the presence of the jury merely for the purpose of invoking his privilege against self-incrimination. State v. Person, 215 Conn. 653, 577 A.2d 1036 (1990), cert. denied, 498 U.S. 1048, 111 S. Ct. 756, 112 L. Ed. 2d 776 (1991); State v. Bryant, supra, [683]; State v. Reddick, 197 Conn. 115, 126-28, 496 A.2d 466 (1985), cert. denied, 474 U.S. 1067, 106 S. Ct. 822, 88 L. Ed. 2d 795 (1986).” State v. Dennison, 220 Conn. 652, 660, 600 A.2d 1343 (1991). This rule is grounded “ ‘in the danger that a witness’s invoking the Fifth Amendment in the presence of the jury will have a disproportionate impact on their deliberations.’ ” State v. Eichstedt, 20 Conn. App. 395, 401, 567 A.2d 1237, cert. denied, 214 Conn. 806, 573 A.2d 318 (1990), quoting Bowles v. United States, 439 F.2d 536, 541-42 (D.C. Cir. 1970), cert. denied, 401 U.S. 995, 91 S. Ct. 1240, 28 L. Ed. 2d 533 (1971).

On remand, the trial court is directed to conduct a hearing. If Gentile does not invoke this privilege, or if he improperly invokes it as to relevant questions that, if answered, would provide admissible evidence, then the convictions are reversed and a new trial is ordered.

B

The defendant next contends that the trial court improperly refused to strike Ciarlelli’s testimony. The facts pertinent to this claim are as follows.

Outside the presence of the jury, Ciarlelli testified that the incident reports he prepared relating to events occurring on August 10, August 16, August 29, August 31 and September 7,1990, were first dictated by him. The tapes were then transcribed by a secretary at the Ham-den police department. The tapes and the transcribed reports were delivered to Ciarlelli, who then reviewed the reports and returned the tapes for reuse. The policy of the Hamden police department was to reuse and therefore erase the tapes. The department had no policy of preserving the tapes.

Ciarlelli’s own routine procedure was to read the prepared transcripts and sign them if they appeared true and accurate. He would listen to a tape before returning it for reuse only if something in a transcript did not appear to be accurate. The transcript of the August 10 tape was signed on August 22, the August 16 tape on August 31, the August 29 tape on September 20, the August 31 tape on September 10, and the September 7 tape on September 27.

The trial court refused to strike Ciarlelli’s testimony, finding that, although the tapes were intentionally destroyed, that destruction was not done in bad faith. The court found that the state had met its burden of proving harmlessness because Ciarlelli adopted the transcripts of the tapes shortly after the events and there were no critical inconsistencies between the transcribed reports and the witness’ in-court testimony.

It is undisputed that the tapes dictated by Ciarlelli concerning the events to which he testified constitute statements that must be preserved pursuant to Practice Book §§ 749 (2) and 752. State v. Jones, 29 Conn. App. 304, 307-310, 615 A.2d 149 (1992). It is also agreed that our standard of review is to determine whether the trial court abused its discretion in failing to strike Ciarlelli’s testimony. Id.

The appropriate sanctions for the state’s failure to comply with discovery are set forth in Practice Book § 755, which requires the trial court either to strike the testimony of the state’s witness or to declare a mistrial, if the defendant seeks it and the interests of justice require it. Id., 313. Our Supreme Court has recently set forth the analysis to be applied in such cases. “[I]f a case involves intentional, but not bad faith, destruction of the statement of a state’s witness, an automatic sanction of striking that witness’ testimony is not required. [State v. Williamson, 212 Conn. 6, 15-16, 562 A.2d 470 (1989)]. State v. Johnson, 214 Conn. 161, 168, 571 A.2d 79 (1990). Rather, under such circumstances, it is appropriate that the court weigh the culpability of the state for its failure to make diselosable material available on the one hand, against any resulting prejudice to the defendant on the other. . . . This approach gives broad discretion to the trial court. . . . Where . . . the destruction of a witness’ statement, although not in bad faith, is deliberate, the state properly bears the burden of establishing harmlessness. . . . In this context, bad faith means a deliberate act done with intent to deprive the defense of information.” (Citations omitted; internal quotation marks omitted.) State v. Cerilli, 222 Conn. 556, 577, 610 A.2d 1130 (1992).

The defendant does not challenge the trial court’s finding that the destruction of the tapes was not done in bad faith. Deliberate destruction of evidence, even with reckless disregard for the defendant’s rights, is not enough to establish bad faith. State v. Baldwin, 224 Conn. 347, 364, 618 A.2d 513 (1993). The defendant does, however, contest the court’s finding that the state met its burden of proof of harmless error; in the alternative, he urges us to conclude that “constructive” bad faith occurred, thereby requiring the automatic sanction of striking Ciarlelli’s testimony, regardless of whether prejudice was shown.

Absent a showing that the defendant’s constitutional right of confrontation was violated by erasure of the tapes, the state need prove only that it was more probable than not that the failure to produce them was harmless. State v. Belle, 215 Conn. 257, 271, 576 A.2d 139 (1990). Our review of the whole record discloses that the state’s failure to produce the tapes did not so adversely affect the defendant’s ability to cross-examine Ciarlelli that it infringed upon his constitutional right of confrontation. We conclude that it is more probable than not that the erasure of the tapes was harmless, and that the trial court did not abuse its broad discretion in weighing the state’s culpability against the prejudice to the defendant. The destruction or erasure of the tapes was harmless because the result of the trial would not have been different had they been preserved. Id., 268.

The defendant alternatively asks that we expand our Supreme Court’s construction of bad faith to include constructive bad faith because the Hamden police department either recklessly or deliberately failed to establish standards for maintaining and preserving evidence, in this case, the dictated tapes. Our Supreme Court has construed bad faith to require a specific intent to thwart the defense. State v. Williamson, supra. Bad faith “connotes a deliberate act done with intent to deprive the defense of information.” State v. Johnson, 214 Conn. 161, 168, 571 A.2d 79 (1990). To adopt a “constructive bad faith” standard would necessitate eliminating the specific intent required on the part of law enforcement, and a rewriting of our Supreme Court precedent. This court will not reevaluate Supreme Court precedent. State v. Wilson, 17 Conn. App. 97, 98 n.1, 550 A.2d 21 (1988).

II

The State’s Appeal

The state appeals, claiming that the trial court improperly dismissed the defendant’s convictions of possession of cocaine with intent to sell and possession of cocaine. We agree with the state’s claim.

The defendant contends that the record is insufficient for review by this court. We find the record sufficient. The facts relevant to this issue are not in dispute. The record of the court’s finding, while not completely articulating the court’s basis for decision, clearly and unambiguously sets forth the legal finding. The parties were heard on the issue and the state properly preserved this claim. The trial court stated that its reading of current case law required dismissal of both of these convictions. We disagree.

Apparently, the trial court treated possession with intent to sell and simple possession as lesser offenses included in the charge of sale of narcotics. The two possession offenses were not lesser offenses included in the sale offense, however, because the possession charges stem from an incident separate from the incident of sales. The three charges of sale of narcotics are supported by separate sales that occurred on August 16, 29 and 31, 1990. The charges of possession are supported by the events that occurred on September 7, 1990, when the warrant was executed at the defendant’s house.

We next address the defendant's conviction on the count of simple possession, which both parties concede is a lesser offense included in possession with intent to sell. The state argues that this conviction should have been combined with the conviction on the greater offense of possession with intent to sell and not dismissed outright. While the case law in this area has been somewhat confusing in the past, our Supreme Court settled the law in this state with its decision in State v. Chicano, 216 Conn. 699, 584 A.2d 425 (1990), cert. denied, 501 U.S. 1254, 111 S. Ct. 2898, 115 L. Ed. 2d 1062 (1991). Relying on United States v. Estrada, 751 F.2d 128, 133-35 (2d Cir. 1984), cert. denied, 474 U.S. 830, 106 S. Ct. 97, 88 L. Ed. 2d 79 (1985), our Supreme Court held that the proper procedure when a defendant is convicted of both greater and lesser offenses arising out of a single transaction is to combine the conviction on the lesser offense with the conviction on the greater offense and to vacate only the sentence of the lesser offense. The conviction on the lesser offense is not merged out of existence. In this way, the conviction on the lesser offense is unaffected and may be resuscitated if the conviction on the greater offense is later vacated for some reason. A conviction on a lesser offense will, in effect, not exist separately as long as the conviction on the greater offense remains intact. This method ensures that there is no danger of double jeopardy or punishment beyond the legislature’s intent. State v. Chicano, supra, 723-25.

Combining the convictions also eliminates the risk of collateral consequences. “A combined lesser conviction could not properly be considered, for instance, in determining a defendant’s eligibility for parole, in sentencing him in the future under a recidivist statute or in impeaching his credibility at a later trial.” United States v. Aiello, 771 F.2d 621, 634 (2d Cir. 1985), on remand, 814 F.2d 109 (2d Cir. 1987). The combining method thus “adequately addresses the dual concerns relating to a subsequent reversal of the remaining conviction and subjecting a defendant to the collateral consequences of multiple convictions.” State v. Chicano, supra, 725.

We conclude that the trial court improperly dismissed the two convictions. The court should have combined the conviction on the lesser count of possession of cocaine with that on the greater count of possession of cocaine with intent to sell, and sentenced the defendant on the greater count.

The case is remanded for a hearing on the witness-informant’s invocation of his fifth amendment privileges against self-incrimination. If the witness does not invoke the privilege, or if he improperly invokes it as to relevant questions that, if answered, would provide admissible evidence, the judgment is reversed and the case is remanded for a new trial. In the event that a new trial is not necessary, the judgment is reversed and the case is remanded with direction to render judgment of guilty of three counts of sale of cocaine, one count of possession of marijuana, one count of possession of cocaine with intent to sell by a person who is not drug-dependent and one count of possession of cocaine. The court is further directed to combine the counts of possession of cocaine with intent to sell by a person who is not drug-dependent and possession of cocaine, and to sentence the defendant on three counts of sale of cocaine, one count of possession of marijuana and one count of possession of cocaine with intent to sell by a person who is not drug-dependent.

In this opinion the other judges concurred.

       In 1984, the United States Court of Appeals for the Second Circuit set forth the procedure for combining lesser offenses with greater offenses in United States v. Estrada, 751 F.2d 128 (2d Cir. 1984), cert. denied, 474 U.S. 830, 106 S. Ct. 97, 88 L. Ed. 2d 79 (1985). The United States Supreme Court subsequently addressed this issue in Ball v. United States, 470 U.S. 856, 105 S. Ct. 1668, 84 L. Ed. 2d 740 (1985), and held that the underlying conviction on a lesser included offense should be vacated in order to avoid possible adverse consequences of the multiple convictions. In 1985, the Second Circuit revisited the issue in United States v. Aiello, 771 F.2d 621 (2d Cir. 1985), on remand, 814 F.2d 109 (2d Cir. 1987), in light of Ball, but affirmed the Estrada procedure, finding it to be consistent with Ball in practical effect. In State v. Napolean, 12 Conn. App. 274, 530 A.2d 634, cert. denied, 205 Conn. 809, 532 A.2d 78 (1987), this court, relying on state law precedents and the decision in Ball, declined to follow the reasoning of Estrada. Our Supreme Court settled the issue in State v. Chicano, 216 Conn. 699, 584 A.2d 425 (1990), cert. denied, 501 U.S. 1254, 111 S. Ct. 2898, 115 L. Ed. 2d 1062 (1991). In Chicano, the court disagreed with Napolean and adopted the reasoning of the Second Circuit. Subsequent case law has been consistent with Chicano. See State v. Castonguay, 218 Conn. 486, 512, 590 A.2d 901 (1991); State v. Cavanaugh, 23 Conn. App. 667, 680, 583 A.2d 1311 (1990). Our Supreme Court has declined to reconsider Chicano. State v. Howard, 221 Conn. 447, 463, 604 A.2d 1294 (1992). In this light, we also decline the defendant’s invitation to revisit Chicano. We will not revisit Supreme Court precedent for purposes of reexamination or reevaluation. Greger v. Greger, 22 Conn. App. 596, 599, 578 A.2d 162, cert. denied, 216 Conn. 820, 581 A.2d 1055 (1990).


author: Daly, J.

text:
    James B. Diamond v. George Marcinek et al.
    (9832)
    Daly, Heiman and Foti, Js.
    Submitted on briefs September 13
    decision released October 12, 1993

      Kenneth J. McDonnell filed a brief for the appellant (plaintiff).

      Richard F. Paladino filed a brief for the appellees (defendants).
   Daly, J.

This case is now before us on remand from the Supreme Court. Diamond v. Marcinek, 226 Conn. 737, 629 A.2d 350 (1993). The relevant facts are fully reported in the opinion of the Supreme Court and will not be restated here. See id., 739-40. It has been determined that the unused underground gasoline storage tanks, once used by an automobile service station, constitute an “existing facility” that has been “temporarily out-of-service” since 1944. Id., 744; see also Regs., Conn. State Agencies § 22a-449 (d)-l (a). Accordingly, § 22a-449 (d)-l (f) of the Regulations of Connecticut State Agencies, concerning the reporting and transfer of a “new or existing facility,” applies. Thus, we must now consider the remaining issues previously raised. See Diamond v. Marcinek, 27 Conn. App. 353, 355, 606 A.2d 1001 (1992).

The plaintiff sought to rescind the sale of the property. “[T]he decision to award a remedy for rescission for breach of contract always depends upon a showing of what justice requires in the particular circumstances, and thus necessarily rests in the discretion of the trial court.” Burt’s Spirit Shop, Inc. v. Ridgway, 215 Conn. 355, 361, 576 A.2d 1267 (1990). In the present case, the trial court properly awarded the plaintiff rescission of the real estate conveyance. Rescission was appropriate because of the defendants’ “negligent concealment” and failure to follow the regulation of the department of environmental protection mandating disclosure of the existence of the tanks to a transferee.

The plaintiff also sought to recover the value of improvements made to the property in question. The trial court found that the plaintiff’s property presumptively had historic value and that the plaintiff had presented no evidence of an increase in the value of the property by virtue of his improvements. Absent clear error, the trier’s factual findings will not be disturbed. Season-All Industries, Inc. v. R. J. Grosso, Inc., 213 Conn. 486, 498, 569 A.2d 32 (1990); Wilcox Trucking, Inc. v.Mansour Builders, Inc., 20 Conn. App. 420, 425, 567 A.2d 1250 (1989), cert. denied, 214 Conn. 804, 573 A.2d 318 (1990). Accordingly, the trial court properly held that the plaintiff failed to meet his burden of proof and could not recover for claimed improvements on the theory of unjust enrichment.

The judgment is affirmed.

In this opinion the other judges concurred.