author: LANDAU, J. O’CONNELL, J.,

text:
    DAVID MURPHY v. CHARLES A. BUONATO, JR., ET AL.
    (14053)
    O’Connell, Landau and Healey, Js.
    Argued February 28
    officially released July 23, 1996

      David G. Hill, for the appellant (defendant).

      James A. Mulhall, Jr., with whom was Kevin T. Nixon, Sr., for the appellee (plaintiff).
   LANDAU, J.

The plaintiff brought this action pursuant to General Statutes § 22-357 to recover damages for personal injuries alleged to have been caused by the defendant’s dog while it was in the plaintiffs care and custody. After a bench trial, the trial court rendered a judgment for the plaintiff and the defendant appealed.

On appeal, the defendant claims that the trial court improperly determined that the plaintiff was not a “keeper” of a dog within the meaning of § 22-357. The defendant further claims that keepers of dogs cannot recover under the statute because keepers do not fall within the class of persons that the legislature intended to protect under the strict liability provisions of § 22-357.

The following facts are relevant to the resolution of this appeal. The plaintiff and the defendant were friends. The defendant is the owner of a Chow dog. In October, 1992, the parties agreed that the plaintiff would care for the defendant’s dog at the plaintiffs home while the defendant was out of town for approximately one week. The defendant delivered his dog to the plaintiffs residence on October 21, 1992.

The next morning, before leaving for work, the plaintiff took the dog for a walk and then placed it inside the house where it remained for the day. At 5 p.m., the plaintiff returned home from work, took the dog outside and tied it to a tree in the yard. Several hours later, the plaintiff walked the dog toward the house intending to bring it in for the night. The plaintiff untied the dog and took hold of its collar to prevent the dog from running away. Upon reaching the rear porch, the plaintiff attempted to open the door using his right hand while maintaining his grip on the dog’s collar with his left hand. The dog suddenly bit the plaintiffs left hand causing several puncture wounds. Later that evening, the plaintiff went to a hospital where he received emergency medical treatment.

The plaintiff sought to recover damages from the defendant pursuant to § 22-357. After a trial to the court, the defendant’s motion for a directed verdict was denied, and the court rendered judgment in favor of the plaintiff, awarding him damages of $33,113.62.3 Responding to the defendant’s postjudgment motion to articulate whether it found that the plaintiff was a keeper, the trial court opined that, although the plaintiff had “possession” of the dog at the time he was bitten, he “was not a keeper of the subject dog, for the purposes of General Statutes § 22-357, at the time of the incident.”

I

We begin our analysis with a determination of whether the trial court properly concluded that the plaintiff was not a keeper at the time he was injured. The defendant argues that the plaintiff meets the definition of a keeper because he not only harbored and possessed the defendant’s dog, but also exercised the requisite dominion and control over it. The plaintiff argues that the trial court’s finding was proper because, although the plaintiff assumed possession of and agreed to care for the defendant’s dog, he merely exercised temporary and transient contact with it and, thus, did not exercise the necessary amount of control required by law to meet the statutory definition of a keeper. We agree with the defendant.

Because the determination of whether the plaintiff was a keeper is a question of fact; Falby v. Zarembski, 221 Conn. 14, 18, 602 A.2d 1 (1992); it is useful to state the proper standard of appellate review. “On appeal, it is the function of this court to determine whether the decision of the trial court is clearly erroneous. . . . This involves a two part function: where the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision; where the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous. . . . In a case tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony. ... On appeal, we will give the evidence the most favorable reasonable construction in support of the verdict to which it is entitled. ... A factual finding may be rejected by this court only if it is clearly erroneous. . . . Kimberly-Clark Corp. v. Dubno, 204 Conn. 137, 153-54, 527 A.2d 679 (1987).” (Internal quotation marks omitted.) Barbara Weisman, Trustee v. Kaspar, 233 Conn. 531, 541, 661 A.2d 530 (1995).

“A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.

. . .” (Internal quotation marks omitted.) Rosick v. Equipment Maintenance & Service, Inc., 33 Conn. App. 25, 41, 632 A.2d 1134 (1993).

It cannot be overlooked that the trial court’s factual conclusion that the plaintiff was not a keeper for the purposes of § 22-357 is based on the subordinate facts it found. “Conclusions drawn from those underlying facts must be legal and logical. State v. Lasher, 190 Conn. 259, 267, 469 A.2d 970 (1983). An appellate court reviews conclusions based on subordinate facts found, even if labeled conclusions of fact, to the same extent that it reviews conclusions of law. Hadfield v. Tracy, 101 Conn. 118, 125, 125 A. 199 (1924).” State v. Geisler, 222 Conn. 672, 693, 610 A.2d 1225 (1992). Accordingly, we may and do determine whether, on the subordinate facts found, the trial court legally and logically concluded that the plaintiff was not a keeper for purposes of § 22-357.

“Of course, we should not hesitate to act when a clearly erroneous finding is discovered. See, e.g., Barbara Weisman, Trustee v. Kaspar, [supra, 233 Conn. 549]; Dornfried v. October Twenty-Four, Inc., 230 Conn. 622, 638, 646 A.2d 772 (1994); Connecticut State Medical Society v. Commission on Hospitals & Health Care, 223 Conn. 450, 458, 612 A.2d 1217 (1992); Gerber & Hurley, Inc. v. CCC Corp., 36 Conn. App. 539, 545, 651 A.2d 1302 (1995); Oakland Heights Mobile Park, Inc. v. Simon, 36 Conn. App. 432, 440, 651 A.2d 281 (1994).” Miceli v. Helyer, 40 Conn. App. 336, 349, 671 A.2d 826 (1996) (Schaller, J., dissenting).

Pursuant to General Statutes § 22-357, “[a] ‘keeper’ is defined as ‘any person, other than the owner, harboring or having in his possession any dog.’ General Statutes § 22-327 [(6)]. To harbor a dog is to afford lodging, shelter or refuge to it. Malone v. Steinberg, 138 Conn. 718, 722, 89 A.2d 213 (1952); Webster’s Third New International Dictionary. ‘[Possession cannot be fairly construed as anything short of the exercise of dominion and control [over the dog] . . . .’ Hancock v. Finch, 126 Conn. 121, 123, 9 A.2d 811 (1939).” Falby v. Zarembski, supra, 221 Conn. 19. “One who treats a dog as living at his house and undertakes to control his actions is [a] . . . keeper.” McCarthy v. Daunis, 117 Conn. 307, 309, 167 A.2d 918 (1933). In order to harbor or possess a dog, some degree of control must be exercised. Buturla v. St. Onge, 9 Conn. App. 495, 519 A.2d 1235 (1987).

Applying these principles to the facts of this case, we conclude that the plaintiff meets the definition of a keeper within the meaning of § 22-357. The subordinate facts found by the trial court established that in early October, 1992, the defendant informed the plaintiff that he had to travel to Oklahoma for approximately one week to give a deposition and asked the plaintiff to care for his dog while he was away. The plaintiff apprised the defendant that he would be willing to care for the dog unless his roommate objected. Thereafter, with his roommate’s acquiescence, the plaintiff informed the defendant that he would care for the dog.

On the evening before his departure, the defendant delivered the dog to the plaintiff, at the plaintiffs residence, and provided the plaintiff with dog food and a chain to secure the dog in the plaintiffs yard. The defendant instructed the plaintiff not to allow the dog to roam. The plaintiff took possession of the dog upon its delivery and, in doing so, assumed sole responsibility to feed and water it, to provide shelter for it, and to walk it. Furthermore, on the day he was bitten, it was the plaintiff who had tied the dog to a tree, later untied it and took hold of its collar to prevent the dog from running away. In short, the subordinate facts found by the trial court established that the plaintiff not only harbored the dog by affording it lodging and shelter, but also exercised exclusive dominion and control over it. Nevertheless, the trial court, in its response to the defendant’s motion for articulation, found that the plaintiff “was merely watching the [defendant’s] dog for a short period of time while the defendant was away” and that the plaintiff’s “possession of the dog was subject to the specific directions for its care and feeding” as provided by the defendant. In finding that the plaintiff was not a keeper, the court stated that “it cannot be said that the plaintiffs temporary custody rose to the level of the ‘exercise of dominion and control similar to and in substitution for that which ordinarily would be exerted by the owner in possession.’ ” In support of its decision, the trial court relied on Hancock v. Finch, supra, 126 Conn. 121. We conclude, however, that, because the facts of this case are substantially dissimilar from those of Hancock, the trial court’s reliance on Hancock is misplaced.

In Hancock, the plaintiffs role amounted to brief visits to the defendant’s home to feed and water the defendant’s dogs while the defendant was out of town for five days. Id., 122. The dogs were kept in a kennel on the defendant’s property, and the plaintiff was specifically instructed by the defendant not to let them out. Id. On the second day, the plaintiff and his wife were attacked and injured by the dogs after the plaintiff released the dogs from the kennel. Id. The plaintiffs complaint sought damages for the injuries caused by the defendant’s dogs, to which the defendant pleaded a special defense that the plaintiff was the keeper of the dogs. Id., 121-22. In holding that the trial court properly refused to submit to the jury the question of whether the plaintiff was a keeper, our Supreme Court reasoned that the plaintiff neither afforded the dogs lodging, shelter or refuge, nor did he exercise dominion and control over them similar to that of the owner. Id., 123.

In this case, the plaintiff exercised a far greater degree of care and control over the defendant’s dog than that exercised in Hancock. Unlike the plaintiff in Hancock, the plaintiff in this case had sole possession of the defendant’s dog, allowed it to live at his own residence, provided it with shelter and lodging, accepted full responsibility for its care and controlled each of the dog’s actions from the moment the defendant delivered it until the moment the plaintiff was bitten. Indeed, under the facts of this case, it is difficult to contemplate a scenario in which the plaintiff could have exerted a greater degree of care and control over the defendant’s dog. Applying the principles of Hancock, we conclude, therefore, that this case is not a case of “temporary custody” as characterized by the trial court.

The plaintiff attempts to buttress his argument that he was not a keeper by asserting that his injuries occurred less than twenty-four hours after the defendant delivered the dog into his possession and that he was either asleep or at work for most of that time. We remain unpersuaded. As we have already stated, the determination of whether a person is a keeper turns on whether, and to what extent, a person in possession of a dog exercises dominion and control over it. Falby v. Zarembski, supra, 221 Conn. 19; Buturla v. St. Onge, supra, 9 Conn. App. 495. Under the facts of this case, because there is no question that he exercised a sufficient degree of dominion and control over the defendant’s dog, we hold that the plaintiff met the definition of a keeper within the meaning of § 22-357. Accordingly, the trial court’s finding that the plaintiff was not a keeper was clearly erroneous.

II

Because we conclude that the trial court’s subordinate findings established that the plaintiff was a keeper within the meaning of § 22-357, we next must determine whether he is precluded, under that legal status, from recovering damages from the defendant owner of the dog.

The defendant claims that, as a keeper, the plaintiff is precluded from asserting a statutory claim because § 22-357 is intended solely to provide a remedy to third parties, who are not in a position to control the dog, against either a dog’s owner or keeper. He argues that, because the statute imposes strict liability against the owner or keeper of a dog, any person who owns or keeps a dog does so at his peril. The defendant asserts that the plaintiffs only recourse would be to file an action sounding in negligence, which he failed to do.

In contrast, the plaintiff claims that his status as a keeper should not preclude him from recovering from the defendant under the statute. He argues that the plain language of § 22-357 indicates that the legislature intended to provide a remedy not only to third persons, but to “any person” injured by a dog. The plaintiff contends that a keeper unambiguously falls within the meaning of “any person” and should not, therefore, be precluded from recovering against the defendant as the owner of the dog. He asserts that, in order to recover under the statute, he need establish only that he was injured by a dog, that he was not committing a tort or teasing or tormenting the dog, and that the defendant owned the dog. We are unpersuaded by this argument.

After reviewing the language of § 22-357, we conclude that the statute does not unambiguously include the keeper of a dog within the class of persons afforded a remedy. Although the statute allows the recovery by “any person,” it does so only against a dog’s owner or keeper. Thus, because we are unable to obtain guidance from the wording as to whether the legislature intended to include the keeper of a dog within the class of persons afforded a remedy under the statute, we must interpret the statute.

Our interpretation of § 22-357 “is guided by the well established principles of statutory construction. Statutory construction is a question of law and therefore our review is plenary. . . . [0]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter. ... If a statute is capable of two constructions, one that is rational and effective in accomplishing the evident legislative object, and the other leading to bizarre results destructive of that purpose, the former should prevail.” (Citations ommitted; internal quotatopn marks ommitted.) State v. Burns, 236 Conn. 18, 22-23, 670 A.2d 851 (1996). “In order to determine the meaning of a statute, we must consider the statute as a whole when reconciling its separate parts in order to render a reasonable overall interpretation.” Murchison v. Civil Service Commission, 234 Conn. 35, 45, 660 A.2d 850 (1995).

The legislative purpose of our dog bite statute was summarized by this court in Maccarone v. Hawley, 7 Conn. App. 19, 507 A.2d 506 (1986), in which we stated that § 22-357 was enacted to create “strict liability in the owner or keeper to third parties for injuries caused by a dog. Its purpose to ‘abrogate the common-law doctrine of scienter as applied to damage by dogs to persons and property, so that liability of the owner or keeper [does not depend] upon his knowledge of the dog’s ferocity or mischievous propensity . . . .’ Grannis v. Weber, 107 Conn. 622, 625, 141 A. 877 (1928). It is an example of the common law principle that, as between two innocent persons, namely the injured third party and the owner or keeper, the loss should fall on the one who caused it, rather than on the one who had no part in doing so. Id.” (Emphasis added.) Maccarone v. Hawley, supra, 24-25.

In Schonwald v. Tapp, 142 Conn. 719, 722, 118 A.2d 302 (1955), our Supreme Court stated that “[t]he statute creates a cause of action that did not exist at common law.” Thus, “when a statute is in derogation of common law or creates a liability where formerly none existed, it should receive a strict construction and is not to be extended, modified, repealed or enlarged in its scope by the mechanics of construction. . . . The court is to go no faster and no further than the legislature has gone. ... A legislative intention not expressed in some appropriate manner has no legal existence.” (Citation omitted; internal quotation marks omitted.) Edmundson v. Rivera, 169 Conn. 630, 633, 363 A.2d 1031 (1975).

Because § 22-357 expressly identifies owners and keepers in the class of persons who are liable under the statute, and because an owner or keeper is defined as a person who harbors or possesses and exerts control over a dog, we conclude that the statute was intended by the legislature “to protect only those people who are not in a position to control the dog.” Khamis v. Everson, 88 Ohio App. 3d 220, 221, 623 N.E.2d 683 (1993). In Khamis, the Ohio Court of Appeals addressed the precise issue before us when it interpreted Ohio’s strict liability dog bite statute. The statute, which is nearly identical to ours, provides in pertinent part: “The owner, keeper, or harborer of a dog is liable in damages for any injury ... to person or property that is caused by the dog. . . .” Ohio Rev. Code Ann. § 955.28 (B).

In Khamis, the keeper of a dog brought suit against the dog’s owner when the keeper sustained an injury from a dog bite. The court held that a keeper cannot sue an owner under the statute. Khamis v. Everson, supra, 880 Ohio App. 3d 225. In reaching its conclusion, the court reasoned that, because the statute was in derogation of the common law, it was to be construed strictly in order to give force and effect to the legislative intent. Id., 224. We find Khamis persuasive.

Thus, when the language “any person,” as used to describe the class of persons afforded a remedy under the statute, is read in context with the entire text of § 22-357 and in light of the statute’s purpose, we conclude that, to effectuate the legislative intent of the statute, the only rational interpretation of the phrase “any person” is that it describes a class of third persons separate and apart from owners and keepers who, by definition, are the class of persons that exercise dominion and control over a dog. See Caldor v. Heffernan, 183 Conn. 566, 570, 440 A.2d 767 (1981).

To adopt the interpretation of the statute urged on us by the plaintiff would lead to bizarre results insofar as the statute would then allow suits not only between keepers and owners, but also between owners and coowners.

Because we believe that the clear meaning of § 22-357 is that either the owner or keeper of a dog shall be strictly liable for injuries caused by that dog solely to third parties; see Khamis v. Everson, supra, 88 Ohio App. 3d 221; we hold that a keeper of a dog is not within the class of persons that the legislature intended to protect by enacting § 22-357. Section 22-357 is “drastic, and its purport is that a person who owns a dog does so at his peril. The same is true as to a keeper, so long as he remains a keeper.” Ingeneri v. Kluza, 129 Conn. 208, 210, 27 A.2d 124 (1942).

The judgment is reversed and the case is remanded with direction to render judgment for the defendant.

In this opinion HEALEY, J., concurred.

O’CONNELL, J.,

dissenting. I cannot agree with the majority for two reasons. First, the trial court made a factual finding that the defendant was not a keeper of the dog for the purposes of General Statutes § 22-357. This finding must stand unless it is legally and logically inconsistent with the evidence. State v. Oquendo, 223 Conn. 635, 645, 613 A.2d 1300 (1992). We may not reject a factual finding merely because the reviewing judges personally disagree with the trial court’s conclusion or would have found differently had they been sitting as the fact finder. Kaplan v. Kaplan, 186 Conn. 387, 391, 441 A.2d 629 (1982).

The fact-finding function is vested in the trial court because of its unique opportunity to view the evidence and to observe the witnesses. Id. The majority agrees that whether the plaintiff was a keeper is a question of fact. “Only in the clearest of circumstances, where no other conclusion could reasonably be reached, is the trier’s determination of fact to be disturbed.” Lettieri v. American Savings Bank, 182 Conn. 1, 9, 437 A.2d 822 (1980). In response to a motion for articulation, the trial court compared the present case to Hancock v. Finch, 126 Conn. 121, 122, 9 A.2d 811 (1939), which distinguished “temporary custody” from “possession” of a dog. The trial court articulated in part as follows: “After hearing the evidence in the present case, the court finds that although the plaintiff did have possession of the dog in the narrowest, physical sense of the word, for the purposes of General Statutes § 22-357, it cannot be said that the plaintiffs temporary custody rose to the level of the ‘exercise of dominion and control similar to and in substitution for that which ordinarily would be exerted by the owner in possession.’ Id., 121]. As in Hancock, the plaintiff was merely watching the dog for a short period of time while the defendant was away, and the plaintiffs possession of the dog was subject to the specific directions for its care and feeding given to the plaintiff by the defendant before he left. . . . Accordingly, the court finds that the plaintiff was not a keeper of the subject dog, for the purposes of General Statutes § 22-357, at the time of the incident.”

Our function is not to determine if the trial court could have reached a conclusion other than the one reached but instead whether the court could reasonably have reached the conclusion that it did. See Allen v. Nissley, 184 Conn. 539, 542, 440 A.2d 231 (1981). We must not substitute our own interpretation of the evidence on the cold record for that of the trial court on a live record. Sportsmen’s Boating Corp. v. Hensley, 192 Conn. 747, 751, 474 A.2d 780 (1984). In my opinion, there was a basis in the evidence to support the trial court’s finding that the plaintiff had temporary custody, and not possession, of the dog. For this reason, I feel that we are bound by the trial court’s finding.

My second reason for dissenting is that even if the plaintiff was a keeper, I can find no authority for precluding him from recovery under § 22-357. The express language of the statute provides that a dog’s owner shall be hable for any damage done by his dog. The statute does not exempt keepers from recovery from an owner for injuries caused by his dog. To qualify for damages the injured party must prove only that (1) damage was done to him by a dog, (2) at the time of such damage he was not committing a trespass or other tort and was not teasing, tormenting or abusing the dog, and (3) that the defendant owned the dog. The majority opinion adds a forth requirement—that he was not the dog’s keeper.

It is not the function of courts to read into clearly expressed legislation provisions that do not find expression in its words. Greenwich v. Liquor Control Commission, 191 Conn. 528, 537, 469 A.2d 382 (1983). We should not extend the statute by adding an exclusion not within the clear language of the legislation. Durrschmitt v. Loux, 230 Conn. 100, 104, 644 A.2d 343 (1994).

If the plaintiff cannot recover under the dog bite statute, he may be barred from all recovery for his injuries. A common law negligence action may not be a substitute. Even a dog’s owner is not liable to persons injuredby the dog unless (1) the dog had vicious propensities (2) of which the owner was aware and (3) the owner failed to exercise reasonable care in restraining the dog. There is no indication in the present case that the plaintiff had such knowledge, i.e., scienter, of the dangerous propensities of the defendant’s dog.

Statutes such as § 22-357, which are in derogation of the common law, must be strictly construed. Yale University School of Medicine v. Collier, 206 Conn. 31, 37, 536 A.2d 588 (1988). The intent of our dog bite statute is to eliminate the common law scienter requirement and to impose strict liability on dog owners for damage done by their dogs. D. Wright, Connecticut Law of Torts (3d Ed. 1991) § 126. Strictly construing this statute, liability of owners is expanded, not limited. The statute should therefore not be used as a shield to protect owners from liability for damage done by their dogs.

I would affirm the decision of the trial court.

       General Statutes § 22-357 states in pertinent part: “If any dog does any damage to either the body or property of any person, the owner or keeper, or, if the owner or keeper is a minor, the parent or guardian of such minor, shall be liable for such damage, except when such damage has been occasioned to the body or property of a person who, at the time such damage was sustained, was committing a trespass or other tort, or was teasing, tormenting or abusing such dog. . . .” (Emphasis added.)

       Although the plaintiffs complaint originally named as defendants Charles A. Buonato, Jr., Charles A. Buonato, Sr., and Kim Fiore, the case was withdrawn as to Buonato, Sr., on December 2, 1993, and as to Fiore on April 6, 1994. In this opinion, therefore, we refer to Charles A. Buonato, Jr., as the defendant.

       The plaintiff, in a single count complaint, claimed statutory liability pursuant to § 22-357.

       On November 7, 1994, the trial court granted the plaintiffs motion to open the judgment and have prejudgment interest added to his damage award pursuant to General Statutes § 52-192a. The court added interest of $6250.86, for a total damage award of $39,364.48, and rendered judgment accordingly.

       In the reported cases, the following types of evidence have been held significant in determining whether an individual kept or harbored a dog: who fed the dog; see Lanna v. Konen, 119 Conn. 646, 178 A. 425 (1935); who tied and untied the dog; see id.; at whose call the dog would come; see id.; who paid for the dog’s license; see Davidson v. Manning, 168 Ky. 288, 181 S.W. 1111 (1916); and who controlled the premises where the dog was kept; see Bailey v. Desanti, 36 Conn. Sup. 156, 414 A.2d 1187 (1980).

       See also E. Y. O’Connell, “Animals—Statutory Liability of a Dog’s Keeper—Who is a Keeper of a Dog? Malone v. Steinberg, 138 Conn. 718, 89 A.2d 213 (1952).” 26 Conn. B.J. 417 (1952).

       See footnote 3.

       At the time of the Schonwald decision, § 22-357 was General Statutes (Cum. Sup. 1953) § 1400c and was identical in pertinent part to the current version.

       At the time of the Ingeneri decision, § 22-357 was General Statutes (Cum. Sup. 1935) § 1380c and was identical in pertinent part to the current version.


source: Caselaw Access Project

author: SHEA, J.

license: Public Domain

text:
    GEORGE PINDER, JR. v. RENA PINDER
    (13695)
    Lavery, Landau and Shea, Js.
    Argued January 22
    officially released July 23, 1996

      RaymondL. Baribeault, Jr., with whom, on the brief, was Miriam Gardner-Frum, for the appellant (defendant).

      John H. Kelley, for the appellee (plaintiff).
   SHEA, J.

The defendant has appealed from the judgment of the trial court denying her motion to open and set aside a prior judgment in this case, rendered on January 11,1990, in which the court dissolved her marriage to the plaintiff and ordered that no alimony be awarded to either party. In her motion, the defendant claims that she never received actual notice of the dissolution proceeding prior to judgment, that the order of notice by registered mail was not complied with, that the plaintiff committed a fraud on the court by testifying falsely that he had spoken to the defendant about the dissolution on the day before the hearing, and that, accordingly, the court lacked jurisdiction to grant the dissolution. After conducting a hearing at which both parties as well as another witness testified, the court concluded that the finding of actual notice made at the time of the dissolution could not be overturned on the basis of the evidence presented and that the claim of fraud had not been “clearly proven.”

On appeal, the defendant claims, as grounds for reversing the judgment, that (1) the court rendering the original judgment lacked jurisdiction to determine her right to alimony because she was not at that time a resident of this state, (2) that court also lacked subject matter jurisdiction to dissolve the marriage because of noncompliance with the order of notice, and (3) the trial court should have found that the plaintiff had committed a fraud on the court at the time of the dissolution proceeding when he testified that he had discussed the matter with the defendant the day before the hearing. We agree with the first claim of lack of personal jurisdiction but reject the other two claims.

The parties were married in Springfield, Massachusetts, in 1954. In 1986, when they were living together in a house they owned in Springfield, the defendant was diagnosed as suffering from multiple sclerosis. In June of that year-, she entered Western Massachusetts Hospital in Westfield, Massachusetts, where she has continued to reside. Some time after the defendant entered the hospital, the plaintiff requested that she transfer her one-half interest in the house in Springfield to him so that it would not be subject to charges for her care at the hospital. She executed a deed prepared by her husband’s attorney for that puipose. In 1988, the plaintiff sold the house in Springfield, retaining the proceeds of the sale, and moved to Mystic, Connecticut, where he purchased a mobile home in which he was residing on January 11,1990, when the dissolution judgment was rendered.

At the dissolution hearing, the plaintiff testified that he had resided in Connecticut for at least one year before he commenced the dissolution action in August, 1989, that his marriage had broken down irretrievably, that there were no minor children of the marriage, that his wife, because of her disability, was unable to write and the person whose signature appeared on the return receipt in the court file, pursuant to the order of notice for service on the defendant at the hospital, was a nurse at the hospital, that on the previous day he had discussed with his wife his intention to proceed with the dissolution action, and that the state of Massachusetts had never requested any contributions from him for the expenses of his wife’s care at the hospital. The dissolution court found actual notice of the action on the part of the defendant, dissolved the marriage and ordered that “[n]o alimony is awarded to either party.”

At the hearing on the motion to open and set aside the dissolution judgment, which was not filed until June 14,1993, more than three years after that judgment had been rendered, the defendant’s attorney conceded that his client had received actual notice of the pendency of the dissolution action because she had consulted a Massachusetts attorney who had agreed to represent her in that action. The defendant testified that she had been informed of the dissolution action by a social worker at the hospital, but had never been served with any papers and had not signed the certified mail return receipt in the court file. She could not recall whether her husband had spoken to her about the dissolution action the day before it was heard, as he had testified at the dissolution hearing.

The social worker assigned to the defendant testified that the file relating to her client contained the papers giving notice of the dissolution proceeding. The file indicated that, with the assistance of a different social worker, the defendant had engaged a Massachusetts attorney to represent her in the dissolution action. After the defendant received a letter from the plaintiffs attorney in May, 1990, informing her that the dissolution judgment had been rendered, the social worker contacted the attorney who was representing the defendant and learned that he was unaware that the dissolution hearing had taken place in January of that year. The social worker contacted another Massachusetts attorney who agreed to represent the defendant. In the fall of 1992, however, she and the defendant learned that the second attorney had taken no action in the case. A third attorney was engaged to represent the defendant through a Massachusetts agency to which the misconduct of the first two attorneys had been reported. The third attorney referred the case to Connecticut counsel who filed this motion and represented the defendant in the ensuing proceedings.

I

The defendant’s motion to open and set aside the dissolution judgment did not include her claim that the dissolution court had no jurisdiction to adjudicate her right to alimony because she resided in Massachusetts and had not had any contact with the state of Connecticut for many years. That motion alleged noncompliance with the order of notice, challenged the finding of actual notice and claimed that the plaintiff had committed a fraud on the court. At the hearing on the motion, however, the defendant did raise the issue of whether the dissolution court had improperly exercised personal jurisdiction over her by providing in the judgment that “[no] alimony is awarded to either party.” After the trial court denied her motion in a memorandum of decision that did not address the personal jurisdiction issue, the defendant filed a motion to reargue, pointing out that oversight. The court also denied that motion.

Despite the defendant’s failure to include the personal jurisdiction issue in her motion to open and set aside the dissolution judgment, the trial court was obliged to consider that issue. “[W]hen the absence of jurisdiction is brought to the attention of the court, cognizance of that fact must be taken and the matter determined before it can proceed further in the case.” Gimbel v. Gimbel, 147 Conn. 561, 566, 163 A.2d 451 (1960). In whatever manner such an issue comes to the attention of a court, it must be addressed, even if the court must act sua sponte in order to do so. Castro v. Viera, 207 Conn. 420, 429, 541 A.2d 1216 (1988); Sasso v. Aleshin, 197 Conn. 87, 89, 495 A.2d 1066 (1985); Carten v. Carten, 153 Conn. 603, 610, 219 A.2d 711 (1966). The delay in this case of more than three years in raising the jurisdictional issue is not a bar to its consideration because a provision of a judgment that exceeds the jurisdiction of a court is necessarily void and cannot be remedied merely by the lapse of time. “Such a judgment is void ab initio and is subject to both direct and collateral attack.” Broaca v. Broaca, 181 Conn. 463, 467, 435 A.2d 1016 (1980); Robertson v. Robertson, 164 Conn. 140, 144, 318 A.2d 106 (1972). “If a court has never acquired jurisdiction over a defendant or the subject matter . . . any judgment ultimately entered is void and subject to vacation or collateral attack.” Bartels v. International Commodities Corp., 435 F. Sup. 865, 867 (D. Conn. 1977).

In Pennoyer v. Neff, 95 U.S. 714, 733, 24 L. Ed. 565 (1878), the United States Supreme Court held that a court has no jurisdiction to render a judgment in personam against a defendant in the absence of personal service within the forum, unless he appears in the action voluntarily. The requirement of personal service within the forum state has since been modified to permit a court to obtain personal jurisdiction over a nonresident who has “certain minimum contacts” with that state, provided that sufficient notice of the action is given to that defendant. International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S. Ct. 154, 90 L. Ed. 95 (1945).

Those principles were applied in Vanderbilt v. Vanderbilt, 354 U.S. 416, 417, 77 S. Ct. 1360, 1 L. Ed. 2d 1456 (1957), to invalidate a provision of a Nevada divorce decree declaring that both the husband, who had sought the divorce, and the wife, who resided in New York and had not appeared in that action, were “ ‘freed and released from the bonds of matrimony and all the duties and obligations thereof ....’” The court held that provision not to affect the wife’s claim for alimony, declaring that the “divorce court was as powerless to cut off the wife’s support right as it would have been to order the husband to pay alimony if the wife had brought the divorce action and he had not been subject to the divorce court’s jurisdiction.” Id., 418-19. The plaintiff has suggested no distinction between the invalid provision of the Nevada divorce decree in Vanderbilt and that involved here, ordering that “[n]o alimony is awarded to either party,” and we perceive none.

Judicial precedent in this state has long recognized that, without service on the defendant within this state, the court has no jurisdiction to render a judgment in personam, such as one ordering him to pay alimony. Robertson v. Robertson, supra, 164 Conn. 144; Beardsley v. Beardsley, 144 Conn. 725, 727, 137 A.2d 752 (1957); Receivers Middlesex Banking Co. v. Realty Investment Co., 104 Conn. 206, 213, 132 A. 390 (1926); Coyne v. Plume, 90 Conn. 293, 297, 97 A. 337 (1916). Apart from federal constitutional restrictions on the exercise of state court jurisdiction over nonresidents, General Statutes §46b-46 (b), which concerns the exercise of personal jurisdiction over nonresident parties with respect to matters concerning temporary or permanent alimony, establishes the requirement, inter alia, that this state have been the “domicile of both parties immediately prior to or at the time of their separation.” In this case, it is undisputed that the defendant was domiciled in Massachusetts for many years before the separation and has continued to remain there.

We conclude that the absence of jurisdiction over the person of the defendant in this case, under both the federal constitution and § 46b-46 (b), invalidates the provision of the dissolution decree that “[n]o alimony is awarded to either party.” The nullification of that portion of the decree, however, has no impact on its remaining provisions that terminate the marriage. In Pennoyer v. Neff, supra, 95 U.S. 733, the fountainhead of the requirement for the defendant’s presence within the forum state to support the exercise of jurisdiction in personam, the court’s opinion excepted “cases affecting the personal status of the plaintiff” from that requirement. A judgment dissolving a marriage but providing no other relief plainly falls within that exception. See Shaffer v. Heitner, 433 U.S. 186, 201, 97 S. Ct. 2569, 53 L. Ed. 2d 683 (1977). A dissolution judgment erroneously ordering a nonresident defendant over whom the court has no personal jurisdiction to pay alimony may be modified in a later proceeding by eliminating that provision. Robertson v. Robertson, supra, 164 Conn. 143-44.

II

The defendant’s claim that the dissolution court lacked jurisdiction over the subject matter of the marriage is based on the undisputed fact that she did not sign the certified mail return receipt as contemplated by the order of notice issued when this action was commenced. The receipt was signed by the switchboard operator at the hospital, who delivered the papers to the social worker handling the defendant’s affairs at that time. Although the defendant admitted at the hearing on the motion to open the dissolution judgment that she had received notice of the action and had engaged an attorney to represent her, she maintains that the absence of her signature on the return receipt constitutes a noncompliance with the order of notice that vitiates the jurisdiction of the court. She claims that the plaintiff, once he saw that someone other than the defendant had signed the return receipt, should have sought a further order of notice from the court.

General Statutes § 46b-46 (a) provides: “After notice has been given and proved to the court, the court may hear the complaint if it finds that the defendant has actually received notice that the complaint is pending.” At the dissolution hearing in this case, counsel for the plaintiff called the attention of the court to the fact that the defendant had not signed the certified mail return receipt, but the court was not concerned about the discrepancy in view of the plaintiffs testimony that he had discussed the dissolution action with his wife on the previous day. On the basis of that testimony, the court found actual notice, and, therefore, had no reason to issue a further order of notice as required by § 46b-46 (a) when “it does not appear that the defendant has had such notice.” Apart from her claim of fraud in part III of this opinion, the defendant does not challenge the sufficiency of the evidence to support the finding of actual notice made by the dissolution court. We conclude that there is no merit to the defendant’s claim of a lack of subject matter jurisdiction arising out of her failure to have signed the return receipt when the papers relating to the commencement of the dissolution action were delivered to the hospital where she resided.

Ill

The claim that the dissolution judgment should be set aside because the plaintiff committed a fraud on the court is based primarily on the contention that his testimony at the dissolution hearing that he had discussed that subject with his wife on the previous day was false. At the hearing on the motion to open the dissolution judgment, the plaintiff testified that he had spoken to his wife about his intention to dissolve the marriage when he visited her at the hospital on the weekend after he engaged an attorney to commence the dissolution action and also when he visited her each month thereafter. He testified further that he had mentioned the dissolution proceeding when he visited her “the day before, and the day after,” informing her that he had “finally put it through.” The defendant testified simply that she could not remember any such conversations.

In addition to the claim of perjury, the defendant claims that the plaintiff peipetrated a fraud on the dissolution court by failing to disclose the circumstances of his disposition of the marital assets and by creating the impression that he could contribute nothing to his wife’s support by presenting a letter indicating that the state of Massachusetts would not hold him responsible for his wife’s care at the hospital. The trial court, without elaboration, rejected “the claim of fraud since it was not clearly proven.”

The party claiming fraud must satisfy a standard of proof more exacting than the probability standard generally applicable in civil cases. Alaimo v. Royer, 188 Conn. 36, 39, 448 A.2d 207 (1982). In attempting to define this elevated standard, our decisions have used such phrases as “clear and satisfactory evidence”; Miller v. Appleby, 183 Conn. 51, 55, 438 A.2d 811 (1981); “clear, precise and unequivocal evidence”; DeLuca v. C. W. Blakeslee & Sons, Inc., 174 Conn. 535, 546, 391 A.2d 170 (1978); and “ ‘clear, convincing and unequivocal evidence’ ”; Dunham v. Dunham, 204 Conn. 303, 322, 528 A.2d 1123 (1987). Even if the defendant in this case were required to prove fraud only by the general civil standard of a preponderance of the evidence, the deference due a trial court’s determination of issues of fact would defeat her challenge to the court’s conclusion that she had not proved fraud on the part of her husband. “The fact-finding function is vested in the trial court with its unique opportunity to view the evidence presented in a totality of circumstances . . . including its observations of the demeanor and conduct of the witnesses and parties, which is not fully reflected in the cold, printed record which is available to us.” Kaplan v. Kaplan, 186 Conn. 387, 391, 411 A.2d 629 (1982).

We conclude that, in light of the testimony of the parties at trial, it was not unreasonable for the court to conclude that the plaintiff had not committed perjury when he testified at the dissolution proceeding that he had discussed that subject with the defendant the day before the hearing. The remaining claims of fraud, based on the plaintiffs appropriation of the marital assets and his presentation of the letter from the state of Massachusetts, relate only to the financial aspects of the dissolution. In part I of this opinion, we decided that the dissolution court’s lack of personal jurisdiction over the defendant precluded any lawful adjudication of her right to alimony. Without such jurisdiction, that court was also powerless to determine any other financial claims the defendant may have against the plaintiff. Indeed, the dissolution judgment does not purport to have adjudicated any such claims. That judgment, therefore, does not bar the defendant from presenting those claims in any subsequent litigation.

The judgment is reversed in part and the case is remanded with direction to render judgment as on file except as modified to delete the provision concerning alimony.

In this opinion the other judges concurred.

       General Statutes § 46b-46 entitled “Notice to nonresident party. Jurisdiction over nonresident for alimony and support,” provides in subsection (b): “The court may exercise personal jurisdiction over the nonresident party as to all matters concerning temporary or permanent alimony or support of children, only if: (1) The nonresident party has received actual notice under subsection (a) of this section; and (2) the party requesting alimony or support of children meets the residency requirement of section 46b-44; and (3) this state was the domicile of both parties immediately prior to or at the time of their separation.”

       General Statutes § 46b-46 (a) provides: “On a complaint for dissolution, annulment, legal separation or custody, if the defendant resides out of or is absent from the state or the whereabouts of the defendant is unknown to the plaintiff, any judge or clerk of the supreme court or of the superior court may make such order of notice as he deems reasonable. After notice has been given and proved to the court, the court may hear the complaint if it finds that the defendant has actually received notice that the complaint is pending. If it does not appear that the defendant has had such notice, the court may hear the case, or, if it sees cause, order such further notice to be given as it deems reasonable and continue the complaint until the order is complied with. Nothing in this section shall be construed to affect the jurisdictional requirements of chapter 815o in a complaint for custody.”

       At the hearing on the motion to open, she admitted that she had received actual notice.


author: FOTI, J.

text:
    STATE OF CONNECTICUT v. MELVIN D. BRASWELL
    (13902)
    Dupont, C. J., and Foti and Healey, Js.

      Argued April 2
    officially released July 23, 1996

      Kenneth Ian, certified legal intern, with whom were Todd D. Femow and Scott DAngelo, certified legal intern, for the appellant (defendant).

      Carolyn K Longstreth, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Paul E. Murray, senior assistant state’s attorney, for the appellee (state).
   FOTI, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of criminal attempt to sell narcotics in violation of General Statutes §§ 21a-278 (b) and 53a-49 (a), and criminal attempt to convey a controlled drug to an inmate of a correctional institution in violation of General Statutes §§ 53a-174 (a)* and 53a-49 (a). The defendant claims that his conviction and sentencing on the charges constituted a violation of his double jeopardy right not to be punished twice for the same offense. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. Sometime in late November, 1992, the state police received information about illegal drug activity occurring in the Hartford Superior Court on Lafayette Street that involved sheriffs employed at that courthouse. The defendant, Melvin D. Braswell, was employed at that time as a sheriff at that Superior Court location. In conducting their inquiry into the illegal activity, the state police identified the defendant as a potential target for investigation. The source of the state police’s information was Gary Ortega, a prisoner at the community correctional center at Hartford. With Ortega’s cooperation, the state police formulated a plan to pass “drugs,” via an undercover state police officer, to the defendant with a request that he deliver them to Ortega in the courthouse lockup.

On December 11, 1992, undercover state police officer Regina Rush approached the defendant in the courthouse and asked him to deliver a package to Ortega, who was being held in the courthouse lockup on that day. Rush had a balloon containing inositol, which had two knots at the end and was marked at the top by a black line. The defendant initially hesitated, mentioning the risk to his job, but subsequently agreed to deliver the balloon after Rush offered him $50. When Rush handed the defendant the item, she commented, “It’s a little coke.”

Ortega was returned to the Hartford community correctional center on December 11, 1992, without having received the balloon. On December 15, 1992, Rush returned to the courthouse to determine why the defendant had not delivered the balloon to Ortega. According to Rush, the defendant stated that Ortega had not been in the lockup on December 11, 1992. The defendant added that he remained in possession of the balloon and inquired whether Rush wanted anything else delivered to Ortega. After the defendant confirmed that Ortega was present in the courthouse lockup on that day, Rush gave the defendant a second marked balloon filled with inositol and $40 in payment. Rush once again told the defendant that the balloon was filled with cocaine. On December 15, 1992, an individual, other than the defendant, delivered the marked balloon to Ortega.

The sole issue on appeal is whether the judgment of conviction and the sentences on the charges constitute multiple punishment for the same offense in violation of the defendant’s double jeopardy right.

The double jeopardy clause of the fifth amendment to the United States constitution provides that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.” “This clause prohibits not only multiple trials for the same offense but also multiple punishment for the same offense. Brown v. Ohio, 432 U.S. 161, 165, 97 S. Ct. 2221, 53 L. Ed. 2d 187 (1977).” State v. John, 210 Conn. 652, 693, 557 A.2d 93, cert. denied, 493 U.S. 824, 110 S. Ct. 84, 107 L. Ed. 2d 50 (1989).

This constitutional provision applies to the states through the due process clause of the fourteenth amendment. Benton v. Maryland, 395 U.S. 784, 787, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969); State v. Woodson, 227 Conn. 1, 7, 629 A.2d 386 (1993). Although the Connecticut constitution does not include a specific double jeopardy provision, the due process guarantee of article first, § 9, of our state constitution has been held to encompass protection against double jeopardy. Kohlfuss v. Warden, 149 Conn. 692, 695, 183 A.2d 626, cert. denied, 371 U.S. 928, 83 S. Ct. 298, 9 L. Ed. 2d 235 (1962); see also State v. Anderson, 211 Conn. 18, 25 n.8, 557 A.2d 917 (1989).

“Double jeopardy analysis in the context of a single trial is a two-step process. First, the charges must arise out of the same act or transaction. Second, it must be determined whether the charged crimes are the same offense. Multiple punishments are forbidden only if both conditions are met. ...” (Citation omitted; internal quotation marks omitted.) State v. Greco, 216 Conn. 282, 290-91, 579 A.2d 84 (1990). In this case, the state concedes, and we agree, that the convictions at issue do not punish separate transactions. The state also acknowledges that the offenses are the “same offense” under a traditional Blockburger analysis, in that each offense does not require proof of an element required of the other.

We recognize, however, as does the defendant, that the Blockburger test is not a conclusive presumption of law; Garrett v. United States, 471 U.S. 773, 779, 105 S. Ct. 2407, 85 L. Ed. 2d 764 (1985); but is a rule of statutory construction and should not be controlling where there is a clear indication of contrary legislative intent. Missouri v. Hunter, 459 U.S. 359, 367, 103 S. Ct. 673, 74 L. Ed. 2d 535 (1983). As a rule of statutory construction, the Blockburger test “does no more than create a rebuttable presumption.” State v. Delgado, 19 Conn. App. 245, 251-52, 562 A.2d 539 (1989). The determinative question is whether the legislature intended the offenses to be separate. State v. Smart, 37 Conn. App. 360, 365, 656 A.2d 677 (1995).

Although in this case the Blockburger test may be satisfied, there remains the question of legislative intent. We are mindful that where the legislative intent is clear from the face of the statute or from legislative history, the Blockburger presumption is not controlling. State v. Greco, supra, 216 Conn. 292. The language, structure and legislative history of a statute can provide evidence of this intent. Id., 293. We conclude that the legislature clearly intended cumulative punishments for both §§ 53a-174 and 21a-278 (b) when the same conduct violates both statutes.

We first look to the purposes of each statute to determine whether the legislature clearly intended multiple punishments for each offense. The charge of unauthorized conveyance of items into a correctional institution, § 53a-174 (a), is a class D felony under the penal code, and its purpose is to protect and enhance the security and integrity of correctional institutions. Items that would tend to disrupt discipline or endanger security are prohibited from being brought into such facilities. The items are not limited to narcotics, but also include alcohol, currency, weapons and tools that may be used to perpetrate an escape.

By contrast, under § 2 la-278 (b), the offense of sale of narcotics is an unclassified felony and is located in the dependency producing chapter, designed to address narcotics addiction comprehensively by regulation and punitive measures. It is clearly part of a legislative scheme that is extensive in purpose. The interests intended to be protected by each statute are clearly separate and distinguishable in nature.

Legislative intent to impose cumulative punishments may also be seen through the comments of legislators when enacting § 21a-278 (b). Those comments make it clear that the purpose of the statute was to target and punish, with a mandatory minimum sentence, those who sell narcotics for profit and are not drug-dependent. We view the prohibition against conveying unauthorized items, such as narcotics, into correctional institutions, under § 53a-174 (a) as entirely distinct.

We also regard the disparate sentencing of the statutes as providing further evidence that the two offenses were not intended as a greater and lesser offense, for purposes of being the same offense. The penalty under § 2 la-278 (b) provides for a sentence consisting of a nonsuspendable minimum of five to twenty years while the penalty under § 53a-174 (a), as a class D felony, is a sentence of not less than one nor more than five years which may be suspended.

Our legislature’s failure to include a provision expressly prohibiting multiple punishments in the statutes in question further convinces us that the legislature intended the punishments to be aggregated. “Since the legislature has shown that it knows how to bar multiple punishment expressly when it does not intend such punishment”; State v. Greco, supra, 216 Conn. 295; the absence of similar language in § 53a-174 provides evidence that the legislature intended cumulative punishment with § 2 la-278 (b).

Our conclusion as to the legislature’s intent is based on the distinct natures of the interests protected by the statutes, their placement within the statutes, their distinct sentencing provisions, the legislative intent of each expressed by legislators at the time of enactment, and the failure of the legislature expressly to prohibit multiple punishment. We conclude, therefore, that the state has rebutted the Blockburger test presumption that the defendant was punished twice for two offenses that are the “same” by clear evidence of contrary legislative intent.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 21a-278 (b) provides: “Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any narcotic substance, hallucinogenic substance other than marijuana, amphetamine-type substance, or one kilogram or more of a cannabis-type substance except as authorized in this chapter, and who is not at the time of such action a drug-dependent person, for a first offense shall be imprisoned not less than five years nor more than twenty years; and for each subsequent offense shall be imprisoned not less than ten years nor more than twenty-five years. The execution of the mandatory minimum sentence imposed by the provisions of this subsection shall not be suspended except the court may suspend the execution of such mandatory minimum sentence if at the time of the commission of the offense (1) such person was under the age of eighteen years or, (2) such person’s mental capacity was significantly impaired but not so impaired as to constitute a defense to prosecution.”
      General Statutes § 53a-49 (a) provides: “A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime, he: (1) Intentionally engages in conduct which would constitute the crime if attendant circumstances were as he believes them to be; or (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.”

       General Statutes § 53a-174 (a) provides: “Any person not authorized by law who conveys or passes, or causes to be conveyed or passed, into any correctional or humane institution or the grounds or buildings thereof, or to any inmate of such an institution who is outside the premises thereof and known to the person so conveying or passing or causing such conveying or passing to be such an inmate, any controlled drug, as defined in section 21a-240, any intoxicating liquors, any firearm, weapon, dangerous instrument or explosive of any kind, any United States currency, or any rope, ladder or other instrument or device for use in making, attempting or aiding an escape, shall be guilty of a class D felony. The unauthorized conveying, passing or possession of any rope or ladder or other instrument or device, adapted for use in making or aiding an escape, into any such institution or the grounds or buddings thereof, shall be presumptive evidence that it was so conveyed, passed or possessed for such use.”

         The plan called for the delivery of inositol, a nonnarcotic white powder that resembles cocaine in appearance.

       Although the defendant was charged with attempted sale of narcotics and attempted delivery of narcotics to an inmate in a correctional facility for the events that transpired on December 15, 1992, the defendant was acquitted of these two charges. This appeal is concerned solely with the events that occurred on December 11, 1992.

         Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932). The traditional approach to analyzing whether two offenses constitute the same offense was set forth in Blockburger as follows: “ [WJhere the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” Id., 304.

       “The intent of the bill is to give the state’s attorney and the prosecuting attorney an opportunity to charge an additional crime which does carry a harder sentence which goes towards imprisoning the person who is not drug dependent and who is, in fact, selling drugs for a profit.” 14 H. R. Proc., Pt. 10,1971 Sess., pp. 4616-17, remarks of Representative Bernard Avcollie.

       The state argues that a contrary conclusion would lead to a bizarre result wherein a person selling narcotics to an inmate of a correctional institution would be eligible for a one year suspended sentence, whereas a person selling drugs to the public must serve a minimum of five years.


author: SPEAR, J.

text:
    FREDERICK J. LOULIS ET AL. v. DEAN B. PARROTT ET AL.
    (14890)
    Spear, Hennessy and Healey, Js.
    Argued May 3
    officially released July 23, 1996

      Robert A. Fuller, with whom was George W. Ganim, for the appellants (plaintiffs).

      Christopher J. Smith, with whom, on the brief, was Marci J. Silverman, for the appellees (defendants).
   SPEAR, J.

The plaintiffs in this declaratory judgment action appeal from the judgment of the trial court dismissing their action for lack of subject matter jurisdiction. On appeal, the plaintiffs claim that the trial court improperly found that they had failed to exhaust their administrative remedies with respect to their challenge to a certificate of zoning compliance that was issued in March, 1995. While we agree with the trial court’s dismissal of the plaintiffs’ action, we affirm the judgment on different but related grounds.

The record discloses the following relevant facts and procedural history. Bart Center, Inc. (Bart Center), a defendant in the action, owns property at 600 Main Street in Monroe. Vernon Bartosik, also a defendant in the action, is the sole shareholder of Bart Center. In June, 1984, the plaintiffs purchased a liquor store at 600 Main Street and leased the property from Bart Center for the operation of the store. By stipulation dated April 4,1994, Bartosik, acting on behalf of Bart Center, evicted the plaintiffs for nonpayment of rent. The plaintiffs thereafter leased property at 630 Main Street and received approval from the department of liquor control (department) for the relocation of their liquor permit to that address.

Bart Center subsequently leased the liquor store to the named defendant, Dean Parrott. Pursuant to General Statutes § 30-39,1 which requires applicants seeking a liquor permit to receive a certificate of zoning compliance, Parrott obtained a certificate from Daniel Tuba, the planning administrator of the town of Monroe, on May 4, 1994 (May, 1994 certification), stating that the location of his proposed liquor store at 600 Main Street complied with local zoning regulations. The transcript reveals, and no dispute exists, that Tuba, as planning administrator, is charged with enforcing the town’s zoning regulations. The department then approved a liquor permit for the location on January 12, 1995. The plaintiffs did not appeal the town’s May, 1994 certification of Parrott’s application to the zoning board of appeals pursuant to General Statutes §§ 8-6 (a)2 and 8-7,3 but did appeal from the department’s decision to grant Parrott a liquor license to the Superior Court.* *

The plaintiffs commenced this declaratory judgment action in February, 1995, seeking to have the trial court declare that the operation of a liquor store at 600 Main Street is a violation of the zoning regulations of the town of Monroe and that the May, 1994 certification is invalid. The plaintiffs also sought an injunction to prevent the defendants from using any portion of the property at 600 Main Street as a liquor store. The defendants filed a motion to dismiss on April 18, 1995, claiming that the plaintiffs had failed to exhaust administrative remedies.

While this action was pending, Parrott applied to Timothy Ryan, the town’s zoning enforcement officer, for a permanent certificate of zoning compliance so that he could obtain a building permit. Ryan, finding that the proposed store complied with all zoning regulations, issued Parrott the certificate on March 27,1995 (March, 1995 certification).

The plaintiffs filed an appeal from the March, 1995 certification to the zoning board on April 26, 1995. The defendants, thereafter on May 9, 1995, filed a supplemental motion to dismiss claiming that the plaintiffs’ pending appeal before the zoning board of appeals constituted an adequate administrative remedy that deprived the trial court of subject matter jurisdiction.

On May 22,1995, the trial court, acting on the supplemental motion to dismiss, issued its memorandum of decision and dismissed the plaintiffs’ action for lack of subject matter jurisdiction. The trial court found that the plaintiffs had a pending appeal before the zoning board and that hearings pertaining to that appeal were scheduled before the zoning board on June 6,1995. The court then concluded that “[i]t is imperative that this court have the benefit of a decision from the local zoning board of appeals regarding the zoning regulations’ impact on property at 600 Main Street, Monroe.”

The plaintiffs then filed a motion for articulation on July 13, 1995. In that motion, the plaintiffs asked the trial court to confirm that its decision was not based on the ground for dismissal cited by the defendants in their original motion to dismiss, namely, the failure of the plaintiffs to exhaust their administrative remedies with respect to the May, 1994 certification. The trial court, responding to the motion for articulation, stated that the “action was dismissed only on the ground of the pending public hearing to the Monroe zoning board of appeals.” This appeal followed.

The plaintiffs claim that the trial court improperly found that they had failed to exhaust an adequate administrative remedy with respect to their challenge from the March, 1995 certification. The plaintiffs assert that their appeal to the zoning board of appeals from that certification did not constitute an adequate administrative remedy. We agree with the trial court’s decision to dismiss the action. We conclude, however, that the action should have been dismissed on the basis of the plaintiffs’ failure to exhaust their administrative remedies with respect to the May, 1994 certification.

The plaintiffs’ complaint in this action challenges only the May, 1994 certification. Paragraph thirteen of the March 14,1995 amendment to the complaint states: “On May 4, 1994, the Defendant, Dean B. Parrott, requested certification from the Town of Monroe that the location of the proposed liquor package store of 3600 square feet at 600 Main Street complied with local ordinances .... The application was certified by the Town of Monroe, acting by its Planning Administrator . . . .” Paragraph fourteen continues: “The Town of Monroe, acting by its agent, erroneously, illegally and mistakenly certified . . . that the location at 600 Main Street met local ordinances even though the proposed 3600 square foot store at that location was in violation of the zoning regulations.” Furthermore, the plaintiffs did not file a substituted complaint or an amendment to their original complaint challenging the March, 1995 certification after Ryan issued the permanent certificate of zoning compliance. Because the plaintiffs, therefore, complained only of the May, 1994 certification in this action, our analysis focuses on that certification in determining whether the trial court properly dismissed the action.

The procedure for appealing an adverse decision from an official charged with enforcing the zoning regulations is well established. General Statutes § 8-6 confers on the zoning board of appeals of each town, city or borough the power and duty “(1) [t]o hear and decide appeals where it is alleged that there is an error in any order, requirement or decision made by the official charged with the enforcement of this chapter or any bylaw, ordinance or regulation adopted under the provisions of this chapter . . . .” General Statutes § 8-7 further provides: “The concurring vote of four members of the zoning board of appeals shall be necessary to reverse any order, requirement or decision of the official charged with the enforcement of the zoning regulations .... An appeal may be taken to the zoning board of appeals by any person aggrieved . . . and shall be taken within such time as is prescribed by a rule adopted by said board, or, if no such rule is adopted by the board, within thirty days, by filing with the zoning commission or the officer from whom the appeal has been taken and with said board a notice of appeal specifying the grounds thereof. . . .’’In reviewing the decision of one charged with the enforcement of the zoning regulations, the zoning board of appeals “ ‘is an administrative body acting in a quasi-judicial capacity.” Astarita v. Liquor Control Commission, 165 Conn. 185, 189, 332 A.2d 106 (1973); see also Spesa v. Zoning Board of Appeals, 141 Conn. 653, 656, 109 A.2d 362 (1954).

After Tuba, a town official charged with enforcing the zoning regulations, certified that the location of the defendants’ liquor store complied with all local zoning regulations, the plaintiffs did not pursue their administrative remedies. Rather than appealing from Tuba’s decision to the zoning board of appeals within thirty days from the issuance of the decision pursuant to § 8-7, the plaintiffs opted to commence this action in the trial court.

“It is a settled principle of administrative law that, if an adequate administrative remedy exists, it must be exhausted before the Superior Court will obtain jurisdiction to act in the matter.” (Internal quotation marks omitted.) Simko v. Ervin, 234 Conn. 498, 503, 661 A.2d 1018 (1995); see also Greater Bridgeport Transit Districts v. Local Union 1336, 211 Conn. 436, 438, 559 A.2d 1113 (1989); Maresca v. Ridgefield, 35 Conn. App. 769, 772, 647 A.2d 751 (1994). “The exhaustion doctrine ‘reflects the legislative intent that such issues be handled in the first instance by local administrative officials in order to provide aggrieved persons with full and adequate administrative relief, and to give the reviewing court the benefit of the local board’s judgment.’ Greenwich v. Kristoff, 180 Conn. 575, 578, 430 A.2d 1294 (1980). It also ‘relieves courts of the burden of prematurely deciding questions that, entrusted to an agency, may receive a satisfactory administrative disposition and avoid the need for judicial review.’ Owner-Operators Independent Drivers Assn. of America v. State, 209 Conn. 679, 692, 553 A.2d 1104 (1989).” Simko v. Ervin, supra, 504.

Our courts have repeatedly stated that “[w]here a statutory right of appeal from an administrative decision exists, an aggrieved party may not bypass the statutory procedure and instead bring an independent action to test the very issue which the appeal was designed to test.” (Internal quotation marks omitted.) Young v. Chase, 18 Conn. App. 85, 91, 557 A.2d 134 (1989); see also Gelinas v. West Hartford, 225 Conn. 575, 595, 626 A.2d 259 (1993); Upjohn Co. v. Zoning Board of Appeals, 224 Conn. 96, 102, 616 A.2d 793 (1992). “The power of the board to review, on appeal . . . any decision of the zoning enforcement [official] and ... to reverse, affirm or modify that decision also supplies some measure of elasticity. . . . This power is vested in a zoning board of appeals, both to provide aggrieved persons with full and adequate administrative relief and to give the reviewing court the benefit of the local board’s judgment.” (Citations omitted.) Astarita v. Liquor Control Commission, supra, 165 Conn. 189.

In the present case, the plaintiffs deliberately bypassed the statutorily prescribed procedure for appealing from the decision rendered by Tuba and, instead, brought a private action seeking the same equitable relief. We conclude that the plaintiffs failed to exhaust the administrative remedies available to them prior to commencing this action.

“Although the general rule is that if an adequate administrative remedy exists, it must be exhausted, ‘[l]ike any other general rule, the rule of exhaustion of administrative remedies is subject to some exceptions ....’” Cummings v. Tripp, 204 Conn. 67, 81, 527 A.2d 230 (1987), quoting LaCroix v. Board of Education, 199 Conn. 70, 79, 505 A.2d 1233 (1986). Nonetheless, “we have recognized such exceptions only infrequently and only for narrowly defined purposes.” LaCroix v. Board of Education, supra, 79.

The plaintiffs assert that their action falls within two exceptions to the exhaustion doctrine. They first claim that a person “ ‘specifically and materially damaged by a violation of the zoning ordinances which has occurred or is likely to occur on another’s land may seek injunctive relief restraining such violation [without exhausting administrative remedies].’ ” Simko v. Ervin, supra, 234 Conn. 504; Cummings v. Tripp, supra, 204 Conn. 75; see also Reynolds v. Soffer, 183 Conn. 67, 69, 438 A.2d 1163 (1981). The plaintiffs contend that because their action seeks an injunction, they fall within this exception, and, therefore, need not have exhausted their administrative remedies.

Our Supreme Court has emphasized that “[w]e cannot state too strongly . . . the necessity for clear and precise allegations of specific and material claims of damage in order to establish the threshold requirement for this exception to the exhaustion doctrine.” Cummings v. Tripp, supra, 204 Conn. 76. In their April 28, 1995 amendment to their complaint, the plaintiffs assert that “[u]nless the zoning regulations are enforced and an injunction is issued against the use of 600 Main Street as a package store, the Plaintiffs will suffer irreparable harm for which there is no adequate remedy at law.” They also claim that they will “suffer special damage and significant financial loss from the [defendants’] competing package store” due to its proximity to the plaintiffs’ store.

Our courts have never recognized the potential for increased competition as a valid specific and material claim of damage. Rather, in each case that recognizes this exception to the exhaustion doctrine, actual claims of nuisance were alleged. See id., 76, 76 n.9 (nuisance action claiming “grievous injury, damage and harm” and “annoyance, personal inconvenience and irritation”); Reynolds v. Soffer, supra, 183 Conn. 68 (“the defendants’ acts constitute a nuisance which adversely affects the plaintiffs’ property, decreases its value, increases the risk of fire and other dangers, specifically endangering health as a result of rodents migrating from the defendants’ property . . . and noise, odors, pollution and disease-causing substances discharged from a new ventilating system”); Scoville v. Ronalter, 162 Conn. 67, 76, 291 A.2d 222 (1971) (“sight, noise and disturbance of construction” and devaluation of plaintiffs’ property); Jobert v. Morant, 150 Conn. 584, 588, 192 A.2d 553 (1963) (“noise, traffic problems and other conditions detrimental to the neighborhood”); Blum v. Lisbon Leasing Corp., 173 Conn. 175, 178, 377 A.2d 280 (1977) (“smoke, loud noises, odor of burning rubber”). Having failed to allege cognizable specific and material claims of damage precisely, the plaintiffs have not established the threshold requirement for this exception to the exhaustion doctrine.

The plaintiffs also claim that this case falls within the exception to the exhaustion doctrine that permits a party to bypass administrative remedies “where the available relief is futile.” The plaintiffs argue that an appeal to the zoning board of appeals would have been futile because (1) it would have been “unnecessarily time consuming,” (2) the zoning board of appeals does not have the authority to determine whether a nonconforming use has been abandoned, and (3) the zoning board of appeals cannot grant the equitable relief the plaintiffs seek in this action.

The plaintiffs cite no applicable authority, and we find none, that permits a party to forgo an appeal to the zoning board of appeals merely because such an appeal will consume time. Were we to hold otherwise and to conclude that a party may properly forgo appellate procedures where such procedures may consume considerable time, we would establish dangerous precedent.

Furthermore, the plaintiffs’ argument that the zoning board of appeals has no authority to determine whether a nonconforming use has been abandoned contradicts well settled law. There exists no dispute that the zoning board of appeals has the authority to make findings involving questions of fact. The plaintiffs contend, however, that a determination as to whether a nonconforming use has been abandoned is a “mixed question of fact and law and requires, among other things, a determination of the intent of the property owner.” Our Supreme Court’s decision in Blum v. Lisbon Leasing Corp., supra, 173 Conn. 175, refutes the plaintiffs’ proposition. In Blum, the Supreme Court stated that “[abandonment in this jurisdiction is a question of fact . . . [that] implies a voluntary and intentional renunciation . . . .” (Citation omitted; emphasis added; internal quotation marks omitted.) Id., 182. The court further noted that the “conclusion of intention [to abandon] is an inference of fact . . . .’’Id.

Lastly, we disagree with the plaintiffs’ claim that an appeal to the zoning board of appeals would be futile because the board cannot grant the equitable relief the plaintiffs seek in this action. In this action, the plaintiffs seek both a declaratory judgment that the May, 1994 certification is invalid because it is based on a nonconforming use in violation of the zoning regulations, and an injunction preventing the defendants from operating a liquor store at the proposed location. A successful appeal to the zoning board of appeals from the May, 1994 certification would provide the plaintiffs with the relief they now request, namely, the defendants would be prohibited from operating a liquor store at the proposed location. We conclude, therefore, that an appeal to the zoning board of appeals from the May, 1994 certification would not have been futile.

Having concluded that the present action does not fall within any exception to the exhaustion doctrine, we hold that the plaintiffs failed to exhaust administrative remedies with respect to the May, 1994 certification, and, therefore, the trial court properly dismissed the plaintiffs’ action. Despite the court’s reliance on the plaintiffs’ failure to exhaust administrative remedies with respect to the March, 1995 certification, it nevertheless properly found that it lacked subject matter jurisdiction to consider this action. We have repeatedly sustained a trial court’s action if the court reached the proper result on different grounds. Vasquez v. State, 181 Conn. 130, 134, 434 A.2d 330 (1980); W. J. Megin, Inc. v. State, 181 Conn. 47, 54, 434 A.2d 306 (1980); Shapiro v. Hartford, 4 Conn. App. 315, 318, 494 A.2d 590, cert. denied, 197 Conn. 810, 499 A.2d 61 (1985).

The plaintiffs last claim, with respect to the March, 1995 certification, that “where a private zoning enforcement action is pending in the [trial] court and the zoning enforcement officer issues a certificate of zoning compliance without giving written notice to interested parties, an appeal from the issuance of the certificate . . . for the limited purpose of a stay of it does not revoke the jurisdiction of the [trial] court over the injunction action based on the doctrine of exhaustion of administrative remedies.” Because we have concluded that the trial court lacked subject matter jurisdiction to consider the injunction action and that such “private zoning enforcement action” was, therefore, improper, we need not address this second claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 30-39 (b) (1) provides in pertinent part: “Any person desiring a liquor permit or a renewal of such a permit shall make a sworn application therefor to the department of liquor control upon forms to be furnished by the department, showing the name and address of the applicant and of his backer, if any, the location of the club or place of business which is to be operated under such permit and a financial statement setting forth all elements and details of any business transactions connected with the application. Such application shall include a detailed description of the type of live entertainment that is to be provided. . . . Applicants shall submit documents sufficient to establish that state and local building, fire and zoning requirements and local ordinances concerning hours and days of sale will be met . . . (Emphasis added.)

       General Statutes § 8-6 (a) provides in pertinent part: “The zoning board of appeals shall have the following powers and duties: (1) To hear and decide appeals where it is alleged that there is an error in any order, requirement or decision made by the official charged with the enforcement of this chapter or any bylaw, ordinance or regulation adopted under the provisions of this chapter . . . .”

       General Statutes § 8-7 provides in pertinent part: “The concurring vote of four members of the zoning board of appeals shall be necessary to reverse any order, requirement or decision of the official charged with the enforcement of the zoning regulations or to decide in favor of the applicant any matter upon which it is required to pass under any bylaw, ordinance, rule or regulation or to vary the application of the zoning bylaw, ordinance, rule or regulation. An appeal may be taken to the zoning board of appeals by any person aggrieved or by any officer, department, board or bureau of any municipality aggrieved and shall be taken within such time as is prescribed by a rule adopted by said board, or, if no such rule is adopted by the board, within thirty days, by filing with the zoning commission or the officer from whom the appeal has been taken and with said board a notice of appeal specifying the grounds thereof. . . .”

       That appeal is currently pending in the Superior Court for the judicial district of Fairfield at Bridgeport.

       All subsequent references to the defendants include Parrott, Bart Center and Bartosik.

       The defendants also moved to dismiss on the bases of (1) the plaintiffs’ refusal to make the town of Monroe a party to the action and (2) the plaintiffs’ failure to establish that they are aggrieved parties. The trial court did not address these claims in its memorandum of decision but, instead, based its finding solely on the plaintiffs’ failure to exhaust administrative remedies.

       The zoning board of appeals subsequently conducted public hearings on June 6 and 26, 1995, concerning the plaintiffs’ appeal from the March, 1995 certification. The board upheld the issuance of the certificate on August 1, 1995. The plaintiffs have appealed from the decision of the zoning board of appeals to the Superior Court for the judicial district of Fairfield at Bridgeport. That appeal is currently pending.


text:
    JOSE M. ALBUQUERQUE v. JOSEPH ALBUQUERQUE ET AL.
    (13973)
    Dupont, C. J., and Heiman and Spear, Js.
    Argued April 1
    officially released July 23, 1996

      Thomas P. Heslin, for the appellant (substitute plaintiff).

      Marc P. Mercier, for the appellees (defendants).
   SPEAR, J.

The substitute plaintiff, Anthony Albuquerque, who is the executor of the estate of his father, the named plaintiff, Jose M. Albuquerque (decedent), appeals from the trial court judgment in favor of the defendants. The complaint alleges that the defendant Joseph Albuquerque (Joseph) misused his position of trust and confidence to gain access to and to deplete the assets of the decedent and, thereafter, fraudulently conveyed certain property to his wife, the defendant Julia Albuquerque (Julia). On appeal, the plaintiff asserts that the trial court improperly (1) found that no confidential relationship existed between the decedent and Joseph, (2) imposed on the plaintiff the burden of proving that Joseph wrongfully appropriated the decedent’s assets, (3) found that Joseph was a natural object of the decedent’s bounty and presumed a donative intent on the part of the decedent, (4) applied the clean hands doctrine to the plaintiff, and (5) failed to set aside the conveyance of certain property by Joseph to Julia. We affirm the judgment of the trial court.

The trial court found the following facts. The decedent and his wife lived in Rhode Island until 1982 when their house was taken by eminent domain. They moved to Middlefield, Connecticut to live with their grandson, Joseph, in a house that was purchased, in part, with a gift of approximately $68,000 from the decedent. After the decedent made the gift, his estate consisted of approximately $100,000 plus a one-third interest in the Middlefield property. Title to the Middlefield property was held jointly in survivorship by the decedent, his wife and Joseph.

After the decedent’s wife died in 1987, the decedent continued to live with Joseph until late 1989, when he went to Florida with the plaintiff. The trip was made with little or no notice and was expected to be of short duration, but the decedent remained with his son in Florida until he died in 1993. On February 5, 1990, approximately two months after he arrived in Florida, the decedent executed a new will leaving his entire estate to the plaintiff, thereby revoking his previous will that had left his entire estate to Joseph and his sister, the decedent’s granddaughter, Doreen Miaño.

When the decedent left Connecticut, his estate consisted of only a $7000 bank account that eventually was withdrawn by the plaintiff. While the decedent was in Florida, the plaintiff, without the services of a lawyer, settled a personal injury case for his father in the amount of $142,000 for a December, 1990 automobile accident, and used the entire $142,000 for his own benefit.

Prior to his death, the decedent instituted this action against the defendants alleging breach of a fiduciary relationship, conversion, fraud and a fraudulent conveyance of real estate. Other facts will be developed as the issues require.

The trial court found for the defendants on all issues and this appeal followed.

I

The plaintiff first claims that the trial court’s finding that there was no confidential fiduciary relationship between the decedent and Joseph was clearly erroneous.

The plaintiff relies solely on Dunham v. Dunham, 204 Conn. 303, 528 A.2d 1123 (1987), in support of this claim. In Dunham, our Supreme Court upheld the trial court’s instruction that provided: “ ‘[I]f the plaintiff has proved . . . that there was a special relationship of trust and confidence and the likelihood of the exercise of personal influence and control such that one would expect of the other fair dealing and mutual consideration, there can be a presumption of fraud arising out of that relationship. That’s the fiduciary or confidential relationship.’ ” Id., 321.

“A fiduciary or confidential relationship is characterized by a unique degree of trust and confidence between the parties, one of whom has superior knowledge, skill or expertise and is under a duty to represent the interest of the other. . . . The superior position of the fiduciary or dominant party affords him great opportunity for abuse of the confidence reposed in him.” (Citations omitted.) Id., 323.

Whether such a confidential relationship exists is a factual question for the trial court. “To the extent that the trial court has made findings of fact, our review is limited to deciding whether such findings were clearly erroneous. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Citations omitted; internal quotation marks omitted.) Westport Taxi Service, Inc. v. Westport Transit District, 235 Conn. 1, 14-15, 664 A.2d 719 (1995). “We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached. Rather, we focus on the conclusion of the trial court, as well as the method by which it arrived at that conclusion, to determine whether it is legally correct and factually supported.” (Internal quotation marks omitted.) Larson v. Jacobson, 38 Conn. App. 186, 189, 659 A.2d 753 (1995).

The trial court found that “although there existed a close personal relationship between the decedent and [Joseph], this relationship did not give rise to a superiority and power of influence in the defendant over his grandfather.” The trial court further found that the decedent was “in control of his faculties and capable of managing his own affairs, including his bank deposits, with a degree of self-reliance and independence.” Our review of the evidence shows that the trial court’s factual conclusions are well supported. We note in particular that much of the plaintiffs evidence was his testimony based on what he claimed were complaints made to him by the decedent while the decedent lived with him in Florida. The plaintiff also introduced into evidence a videotape of the decedent taken in Florida that was arranged by the plaintiff. On the videotape, the decedent answered questions posed by his attorney that alleged that Joseph wrongfully took his money and property. Joseph offered evidence that he had no control over the decedent’s affairs but that he simply followed the decedent’s orders with respect to making transactions. Joseph testified that the decedent made gifts to him, including the $68,000 that was used to purchase the Middlefield property.

Credibility of witnesses is a matter for the trier of fact and not this court. Westport Taxi Service, Inc. v. Westport Transit District, supra, 235 Conn. 14. We do not substitute our judgment for that of the trial court simply because we might have concluded otherwise on the evidence. Larson v. Jacobson, supra, 38 Conn. App. 189.

The trial court could have properly concluded as it did by finding that the plaintiffs evidence was not credible or that the defendant’s evidence was worthy of belief. This is especially so given the advanced age of the decedent, his failing health at the time of the videotaped statement, the lack of any cross-examination of the decedent’s statement and the ofttimes leading nature of many of the questions. We conclude that the trial court’s finding that the plaintiff failed to establish a confidential relationship was not clearly erroneous.

II

The plaintiff next claims that Joseph should have had the burden of proving that his transactions with his grandfather were proper and not in breach of a confidential relationship. The plaintiff correctly asserts that Hieble v. Hieble, 164 Conn. 56, 62-63, 316 A.2d 777 (1972), stands for the proposition that “where a confidential relationship has been established, there is clear authority that the burden of proof rests on the party denying the existence of a trust—and then, by clear and convincing evidence to negate such a trust.”

Because the trial court’s finding that no such confidential relationship existed was not clearly erroneous, the trial court was not required to allocate the burden of proof.

Ill

The plaintiff also asserts that the trial court improperly found that Joseph was a natural object of the decedent’s bounty and, therefore, improperly presumed a donative intent by the decedent with respect to the decedent’s transfers to Joseph. The plaintiff asserts that, as the decedent’s son, he was the natural object of the decedent’s bounty because he would inherit the decedent’s estate pursuant to the laws of intestate succession.

The trial court found that the decedent was a loving and generous man who had a very close and loving relationship with Joseph. The trial court also found that the decedent had “a serious falling out with his son” when the plaintiff attempted to have himself involuntarily appointed conservator of his father’s estate in 1982. The application process emotionally scarred the decedent and Joseph. There was evidence that the decedent had helped the plaintiff purchase several houses and had helped the plaintiffs brother purchase a house. There was also evidence that the decedent wanted to help Joseph purchase a house as he had helped his sons. In light of this evidence, we cannot conclude that the trial court’s finding that the transfers to the defendant were not induced by fraud, but were instead gifts, is clearly erroneous.

The trial court’s finding that the transfers were gifts is amply supported by the evidence, even without considering whether Joseph was a natural object of the decedent’s bounty with the attendant presumption of donative intent. A discussion of who could have properly been considered the natural object of the decedent’s bounty would, therefore, be unnecessary.

IV

The plaintiff next asserts that the trial court improperly applied the clean hands doctrine to the plaintiffs claims. The assertion rests on the following language in the trial court’s memorandum of decision: “Moreover, the plaintiffs complete control of his father’s finances for more than three years while he lived in Florida, including a questionable gift of $142,000 by a man more than ninety years old and in failing health tends to implicate the unclean hands doctrine when one evaluates the merits of the plaintiffs claims.”

The trial court made this statement only after concluding that the defendant had not converted the assets of his grandfather for his own use and benefit and that the $68,000 used to purchase the Middlefield house was a gift from the decedent. In addition, the court found no fraud on the part of Joseph. Thus, it appears that the court did not rely on the clean hands doctrine in reaching its conclusions. The statement, at best, would make the opinion ambiguous. The plaintiff failed to seek an articulation with respect to the clean hands statement and “we read an ambiguous record, in the absence of a motion for articulation, to support rather than undermine the judgment.” Water Street Associates Ltd. Partnership v. Innopak Plastics Corp., 230 Conn. 764, 773, 646 A.2d 790 (1994).

V

The plaintiffs last claim is that on December 1, 1989, Joseph acquired property at 44 Hopyard Road in East Haddam and created a survivorship interest in that property in his wife, Julia, for the purpose of defrauding the plaintiff.

“The party seeking to set aside a conveyance as fraudulent bears the burden of proving either: (1) that the conveyance was made without substantial consideration and rendered the transferor unable to meet his obligations; or (2) that the conveyance was made with a fraudulent intent in which the grantee participated. . . . Whether the conveyance in question was fraudulent is purely a question of fact. . . . Fraudulent intent must be proved, if at all, by clear, precise and unequivocal evidence. . . . This standard of proof applies to intra-familial conveyances.” (Citations omitted; internal quotation marks omitted.) Watson v. Watson, 221 Conn. 698, 707, 607 A.2d 383 (1992).

The trial court found as a fact that “there is no evidence that the creation of a joint survivorship interest in his wife rendered [Joseph] unable to meet his obligations, or that the former as grantee thereof, participated in a fraudulent scheme.” Because this finding of fact is not clearly erroneous, the plaintiff cannot prevail on this claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       This action was commenced by Jose M. Albuquerque. After his death, his son, Anthony Albuquerque, became executor of his estate and was substituted as plaintiff. We refer in this opinion to the executor as the plaintiff.

       The decedent, after Ms wife’s death, transferred Ms interest in the Middlefield property to Joseph. The plaintiff attacks tMs transfer as one induced by fraud or in breach of a confidential relationship.

       The plaintiff asserts that Joseph and his sister were appointed conservators of the person of the decedent. Although the trial court made no such finding, Joseph concedes in his brief that he and his sister were appointed conservators of the decedent’s person in 1986. The plaintiff does not argue that that appointment created the confidential relationship that Joseph allegedly breached.

       The defendants claimed in oral argument that they filed a cross appeal with respect to their claim that the trial court improperly admitted a videotaped statement of the decedent. Although the defendants addressed that issue in their brief, we find no cross appeal in the record. Even if there were such a cross appeal, there would be no need for us to resolve the issue because we affirm the judgment of the trial court on the appeal.