author: O’Connell, J. Borden, J.,

text:
    Lauretta Sauerwein v. James Bell et al.
    (6027)
    Borden, Daly and O’Connell, Js.

      Argued October 13, 1988
    decision released March 21, 1989

      Stefan Underhill, with whom, on the brief, were Peter M. Nolin and William J. Hanlon, for the appellants (defendant Arthur James et al.).

      Timothy G. Atwood, for the appellee (plaintiff).
   O’Connell, J.

The defendants Consolidated Freight-ways, Inc., and Arthur James appeal from the judgment rendered on a jury verdict in favor of the plaintiff in this personal injury action resulting from an automobile accident. The defendants claim that the trial court erred (1) in denying their motion to set aside the verdict, (2) in instructing the jury that Arthur James was the operator of the vehicle at issue, (3) in submitting the issue of whether the defendants had violated General Statutes § 14-251 to the jury, and (4) in improperly instructing the jury concerning the plaintiffs burden of negating the exceptions found in § 14-251. We find error.

The jury could reasonably have found the following facts. On February 11,1981, at approximately 9 a.m., the plaintiff was traveling west on Route 1 in Stamford when she noticed a large white tractor trailer truck parked along the north curb of Route 1 (also known as East Main Street), near its intersection with Standish Road. The truck, which was owned by the defendant Consolidated Freightways and driven by its employee, the defendant Arthur James, was parked in such a way as partially to obstruct the right lane of the two westbound lanes of Route 1 and to block the view of the intersection. As the plaintiff passed the parked truck and approached Standish Road, a car driven by the defendant James Bell suddenly came into view in front of her car and the two vehicles collided.

The defendants first claim that the trial court erred in instructing the jury that Arthur James, an employee of Consolidated Freightways, had parked the truck in question. They also contend that the trial court should have granted their motion to set aside the verdict because the plaintiff failed to prove that James had parked that truck. Due to the similar nature of these claims, we will address them together.

The defendants’ answer admitted that on February 11, 1981, at approximately 9 a.m., Arthur James was the operator of a commercial vehicle owned by Freightways Consolidated, Inc. It also admitted that, at 9 a.m. on Route 1, approaching the intersection of East Main Street and Standish Road, Arthur James was acting as its agent, servant or employee. They denied that at that time and place Arthur James negligently parked the truck he was operating so as to obstruct the intersection and interfere with the ability of drivers to see traffic approaching the intersection and that he violated General Statutes § 14-251.

A Stamford police officer who witnessed the accident testified that a white tractor trailer truck with Consolidated Freight or Freightways painted on it in green letters was parked in the traveled portion of the roadway, adjacent to a no parking sign, and that it obstructed the view of approaching traffic. There was no testimony from him or any other witness that any other Consolidated Freightways vehicle was in the vicinity.

The defendants correctly point out that there was no evidence of the truck driver’s name. The officer testified that the driver was not in his truck at the time of the collision but arrived shortly thereafter. On cross-examination, the officer described the driver’s physical appearance. The issue of the driver’s identity, however, was not raised until the conclusion of the plaintiff’s case when the defendants moved the court to dismiss the action and direct a verdict in their favor. The motion was denied and without putting on evidence, the defendants rested.

The court instructed the jury that “the plaintiff alleged in the amended complaint that Arthur James was the driver of the tractor trailer owned by the defendant, Consolidated Freightways, Inc., and that particular allegation has been admitted.” In their exceptions to this portion of the charge, the defendants argued that the court misstated their admissions and left the jury with the mistaken impression that the defendants admitted that James had parked the truck that caused the accident. The trial court responded by stating: “It’s admitted. . . . It is your truck as far as I heard from all the evidence in this case, from the evidence of the police officer, his description of this man and how he came out .... I feel as though the pleadings are controlling in this case, and leaving the complaint can only establish that it was your truck.” We agree with the court.

“ ‘The interpretation of pleadings is always a question of law for the court. . . ” (Citation omitted.) Cahill v. Board of Education, 198 Conn. 229, 236, 502 A.2d 410 (1985). In view of the defendants’ admissions and the evidence presented, the court correctly interpreted the defendants’ pleadings to indicate that they were disputing whether James acted negligently in parking the truck, not whether James was the person who parked the truck. Furthermore, the defendants did not file a request that the court charge on the identity of the driver. We conclude that it was not error to instruct the jury to that effect or to deny the motion to set aside the verdict.

The remaining claims of error involve the court’s instructions concerning General Statutes § 14-251 which establishes rules for parking on state highways. The defendants argue that the court erred in submitting the issue of statutory negligence pursuant to General Statutes § 14-251 to the jury because the plaintiff failed to introduce evidence establishing the statute’s applicability to this case.

General Statutes § 14-251 excludes certain vehicles and situations from its application and it expressly exempts any highway within the limits of an incorporated city, town or borough where the parking of vehicles is regulated by local ordinances.

“Where an exception forms an integral part of . . . a statute which creates a right, it becomes a limitation upon that right, and a plaintiff, to avail himself of the benefit of the statute, must show that he comes within the limited class for whose benefit the right was established, the burden of proof in this respect being upon him”; Goodwin v. Giovenelli, 117 Conn. 103, 107, 167 A. 87 (1933); unless the defendant pleads the benefit of the exception as an affirmative defense. Id.; see also Hanson v. Carroll, 133 Conn. 505, 507, 52 A.2d 700 (1947).

In the present case, the defendants did not claim that this action fell within an exception to § 14-251. Furthermore, the plaintiff concedes that she failed to introduce evidence to negate the applicability of any exception in the statute, including whether the location of the defendant’s truck was governed by the statute or by an ordinance of the city of Stamford. As a result, we conclude that she failed to meet her burden of proving statutory negligence and she was not entitled to an instruction on this claim. “ ‘ “It is established law that it is error for a court to submit to the jury an issue which is wholly unsupported by the evidence. . . .” ’ ” (Citation omitted.) McGloin v. Southington, 15 Conn. App. 668, 677, 546 A.2d 906 (1988) quoting Novak v. Anderson, 178 Conn. 506, 508, 423 A.2d 147 (1979).

The plaintiff contends that despite this error in the court’s charge, the general verdict rule precludes remanding this case for a new trial. The rule provides that where distinct causes of action have been pleaded and a general verdict has been rendered, it is presumed that each cause had been decided in favor of the prevailing party. Pedersen v. Vahidy, 209 Conn. 510, 512, 552 A.2d 419 (1989). It does not apply, however, where the plaintiff alleges different grounds of negligence as a basis for recovery because such grounds are often so intertwined that it is difficult to formulate interrogatories and for the jury to consider them separately. Fin ley v. Aetna Life & Casualty Co., 202 Conn. 190, 202, 520 A.2d 208 (1987); Ziman v. Whitley, 110 Conn. 108, 114-15, 147 A.2d 370 (1929); see also Pederson v. Vahidy, supra; Velardi v. Selwitz, 165 Conn. 635, 642, 345 A.2d 527 (1974).

The plaintiff argues, contrary to the established authority concerning negligence cases and the general verdict rule, that her common law claim and her statutory claim, as set forth in the fourth count of her complaint, are two distinct causes of action because she is relying on separate legal grounds. Moreover, she contends that the present case is not a situation where it would have been difficult for the defendants to formulate interrogatories and for the jury to consider them.

A similar argument was made in Velardi v. Selwitz, supra, 641. There, the plaintiff also asserted common law and statutory negligence in a single count. Our Supreme Court found error in the court’s charge on the latter and stated that the application of the general verdict rule in such cases was governed by Ziman v. Whitley, supra. Ziman held that “ ‘[wjhere . . . different specifications of fact are alleged in support of one essential right, as where various grounds of negligence are alleged as a basis for a recovery for injuries resulting from a particular accident, it is the sounder policy to permit an appellant to take advantage upon appeal of errors affecting one specification of negligence only, even though no interrogatories have been submitted.” Id., 116. See also Falzone v. Gruner, 132 Conn. 415, 419, 45 A.2d 153 (1945). Hence, the plaintiff’s argument is without merit and a new trial is required.

During oral argument, the plaintiff suggested that if we found reversible error, we should remand only on the issue of liability. While it is true that we may restrict a new trial to specific issues, such an order is the exception, not the rule. Fazio v. Brown, 209 Conn. 450, 455, 551 A.2d 1227 (1988); Niles v. Evitts, 16 Conn. App. 696, 699, 548 A.2d 1352 (1988). It is warranted only “ ‘[wjhere the error as to one issue or issues is separable from the general issues . . . [and] such . . . limitation does not work injustice to the other issues or the case as a whole.’ ” Fazio v. Brown, supra, quoting Murray v. Krenz, 94 Conn. 503, 507, 109 A. 859 (1920).

In the present case, we are unable to discern whether the jury’s verdict reflected its finding that the defendants’ actions constituted common law negligence, statutory negligence, or both. In addition, the defendants’ liability is not clear-cut because the jury found the plaintiff 25 percent contributorily negligent and reduced its verdict accordingly. Therefore, the issues of liability and damages are “inextricably interwoven” and both must be retried to avoid injustice. Fazio v. Brown, supra, 456-57.

There is error. The case is remanded for a new trial on all issues of liability and damages.

In this opinion Daly, J., concurred.

Borden, J.,

dissenting. I disagree with the majority that the trial court correctly interpreted the pleadings to mean that the defendants did not dispute that Arthur James parked the truck in question. I conclude from the pleadings that the defendants denied that James parked the truck, and that, therefore, the trial court erred in failing to direct a verdict for the defendants. I therefore dissent.

It is undisputed that there was no evidence whatsoever in this trial on the identity of the person who parked the truck. It also is undisputed that the plaintiff’s cause of action against the defendant Consolidated Freightways, Inc., (Consolidated) is wholly derivative based on the claim that James, its employee, was negligent in parking the truck owned by Consolidated at the time and place in question. Thus, it was essential for the plaintiff to prove, or otherwise validly establish, that James parked Consolidated’s truck there and then.

Although she could have done so, the plaintiff did not request the defendants to admit, pursuant to Practice Book § 238, that James had parked the truck owned by Consolidated at the time and place in question, nor did she present James as a witness. She did not seek to introduce a copy of any records of Consolidated that would have indicated the identity of the driver of the parked truck, or seek to introduce a copy of any motor vehicle accident report that the driver of the parked truck may have filed. Furthermore, there was testimony from one of the investigating police officers that he issued a parking citation to the driver of the truck that was parked there, but the plaintiff did not elicit from the officer the name of the- driver or the owner of the truck, or offer a copy of the citation.

The majority’s sole reliance for the plaintiff’s establishment of this element is a purported judicial admission in the pleadings that James, acting within the scope of his employment, parked Consolidated’s truck. The majority reads the defendants’ pleadings as admitting that James parked the truck but denying that he did so negligently. This interpretation unduly strains the meaning of the defendants’ pleadings and penalizes them for an ambiguity that is solely of the plaintiff’s making.

The defendants admitted paragraphs two and three of the plaintiff’s amended complaint, which alleged in effect that, at approximately 9 a.m. on February 11, 1981, at the intersection of East Main Street and Standish Road in Stamford, the “defendant, ARTHUR JAMES, of New Haven, Connecticut, was the operator of a commercial vehicle owned by defendant, FREIGHTWAY CONSOLIDATED, INC., a corporation with an office and place of business at 56 Keeler Avenue, Norwalk, Connecticut,” and that “[a]t said time and place, the defendant, ARTHUR JAMES, was acting as the agent, servant and/or employee of the defendant, FREIGHTWAY CONSOLIDATED, INC., and was acting within the scope of his authority as an agent, servant and/or employee.” These admissions can be taken to mean no more than that, at the time and place in question, James was operating a commercial vehicle owned by Consolidated within the scope of his employment. They say nothing about whether James parked such a vehicle or that, if he did, he was negligent.

The operative paragraph of the pleadings is paragraph four of the amended complaint, which reads in its entirety as follows: “4. At said time and place, defendant, ARTHUR JAMES, negligently parked the truck he was operating in such a manner so as to obstruct the intersection of East Main Street and Standish Road and to obstruct and interfere with the ability of drivers on either of such roads to see traffic approaching the intersection. Defendant James’ actions in so parking his vehicle were in violation of Section 14-251 of the Connecticut General Statutes.” (Emphasis added.) The defendant’s response to these allegations was as follows: “The defendants deny [paragraph] 4 . . . .” This can mean only that the defendants denied each and every part of paragraph four of the amended complaint. That, in turn, can mean only that, in denying the allegation that James “negligently parked” the truck he was operating, they denied that he both parked the vehicle he was operating, and did so negligently. Indeed, the plaintiff’s amended complaint never even alleged that James was operating a “truck” owned by Consolidated; it alleged, and the defendants admitted, only that he was operating a “commercial vehicle” owned by Consolidated.

I do not understand how the majority can read a denial that James “negligently parked” a vehicle so as to render that denial as an admission that he parked it, but as a denial of negligence in doing so. It is true that, when used in different contexts, words can take on different colorations and meanings. See DeWitt v. John Hancock Mutual Life Ins. Co., 5 Conn. App. 590, 594, 501 A.2d 768 (1985). (“As Justice Holmes wrote, ‘[a] word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and' time in which it is used.’ Towne v. Eisner, 245 U.S. 418, 425, 38 S. Ct. 158, 62 L. Ed. 372 [1918].”) Surely that does not mean, however, that the defendants’ use of the word “deny” can mean “admit and deny.” Yet that, it seems to me, is the result of the majority’s reasoning.

Furthermore, if there is an ambiguity in the pleadings, it does not arise from the defendants’ use of words. They had the right to controvert in good faith the allegations of paragraph four of the amended complaint. Practice Book § 160. Any ambiguity there may be — and I see none — arises solely from the plaintiff’s amended complaint. It is wholly unwarranted, in my view, to place the penalty for such an ambiguity on the defendants, particularly when that penalty amounts to a judicial admission of an essential factual element of the plaintiff’s cause of action.

I also am unable to understand the import of the majority’s argument that the defendants did not request a jury charge on the driver’s identity, and that the “pleadings and the evidence permitted the jury to infer that Arthur James parked the truck which caused the accident and the trial court did not err in instruct ing the jury to that effect. ” (Emphasis added.) The defendants had no obligation to request a jury charge on the driver’s identity, since they claimed that the court, as a matter of law, should have directed a verdict due to the failure of the plaintiffs to prove that identity. Moreover, the court’s jury charge did not permit the jury to infer that James parked the truck; it required the jury to find that fact by instructing the jury that the defendants had judicially admitted it.

I agree with the majority that the interpretation of pleadings is always a question of law for the court. Cahill v. Board of Education, 198 Conn. 229, 236, 502 A.2d 410 (1985). That means also, of course, that our review of the trial court’s interpretation of the pleadings is a question of law, our scope of review is plenary, and the trial court’s interpretation is not entitled to deference on our part. See Grady v. Schmitz, 16 Conn. App. 292, 295-96, 547 A.2d 563 (1988); Iamartino v. Avallone, 2 Conn. App. 119, 125, 477 A.2d 124, cert. denied, 194 Conn. 802, 478 A.2d 1025 (1984). Although in interpreting pleadings the court is to do so reasonably so as to give effect to their general theory and to do substantial justice between the parties, essential factual allegations may not be supplied by conjecture or remote implication. Cahill v. Board of Education, supra. The majority has so supplied what the plaintiff neglected to prove.

It is true that “jujnder modern rules of pleading, slight linguistic ambiguity should not be fatal to a cause of action”; Schenck v. Pelkey, 176 Conn. 245, 255, 405 A.2d 665 (1978); and that pleadings should be read “broadly and realistically, rather than narrowly and technically.” Krattenstein v. Thomas, 7 Conn. App. 604, 610, 509 A.2d 1077 (1986). Those principles do not mean, however, that the plaintiff was no longer required to prove her case as pleaded; Cahill v. Board of Education, supra; or that the defendants’ denial of the essential facts pleaded by the plaintiff can somehow be bifurcated into an admission and denial. That, however, is what the majority says happened in this case.

       The defendants waived this inaccuracy in the corporate defendant’s name.

       “[General Statutes] Sec. 14-251. parking vehicles. No vehicle shall be permitted to remain stationary within ten feet of any fire hydrant, or upon the traveled portion of any highway except upon the right-hand side of such highway in the direction in which such vehicle is headed; and, if such highway is curbed, such vehicle shall be so placed that its right-hand wheels, when stationary, shall, when safety will permit, be within a distance of twelve inches from the curb. No vehicle shall be permitted to remain parked within twenty-five feet of an intersection or a marked crosswalk thereat, or within twenty-five feet of a stop sign caused to be erected by the traffic authority in accordance with the provisions of section 14-301. No vehicle shall be permitted to remain stationary upon the traveled portion of any highway at any curve or turn or at the top of any grade where a clear view of such vehicle may not be had from a distance of at least one hundred and fifty feet in either direction. The commissioner of transportation may post signs upon any highway at any place where the keeping of a vehicle stationary is dangerous to traffic, and the keeping of any vehicle stationary contrary to the directions of such signs shall be a violation of this section. No vehicle shall be permitted to remain stationary upon the traveled portion of any highway within fifty feet of the point where another vehicle which had previously stopped, continues to remain stationary on the opposite side of the traveled portion of the same highway. No vehicle shall be permitted to remain stationary within the limits of a public highway in such a manner as to constitute a traffic hazard or obstruct the free movement of traffic thereon, provided a vehicle which has become disabled to such an extent that it is impossible or impracticable to remove it may be permitted to so remain for a reasonable time for the purpose of making repairs thereto or of obtaining sufficient assistance to remove it. Nothing in this section shall be construed to apply to emergency vehicles and to maintenance vehicles displaying flashing lights or to prohibit a vehicle from stopping, or being held stationary by any officer, in an emergency to avoid accident or to give a right of way to any vehicle or pedestrian as provided in this chapter, or from stopping on any highway within the limits of an incorporated city, town or borough where the parking of vehicles is regulated by local ordinances. Violations of any provision of this section shall be an infraction.”

       If the defendants had pleaded the benefit of an exception in General Statutes § 14-251 as a defense, they would then have had the burden of proving that they came within the limited class for whose benefit the exception was established. Conservation Commission v. Price, 193 Conn. 414, 424, 479 A.2d 187 (1984); Aaron v. Conservation Commission, 183 Conn. 532, 549, 441 A.2d 30 (1981).


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    State of Connecticut v. Reliable Refuse, Inc., et al.
    (6366)
    Dupont, C. J., Spallone and Foti, Js.
    Argued October 4
    decision released October 26, 1988

      Albert G. Murphy, for the appellant (named defendant).

      Eugene A. Cooney, for the appellee (plaintiff).
   Per Curiam.

The named defendant is appealing from the judgment rendered for the plaintiff on the defendants’ counterclaim following a directed verdict.

The defendants did not move to set aside the directed verdict, thereby limiting this court to a plain error standard of review. Practice Book § 4185; Pietrorazio v. Santopietro, 185 Conn. 510, 515, 441 A.2d 163 (1981); Denby v. Voloshin Cadillac, 3 Conn. App. 181, 183, 485 A.2d 1360, cert. dismissed, 196 Conn. 802, 491 A.2d 1105 (1985); Eagar v. Barron, 2 Conn. App. 468, 472, 480 A.2d 567 (1984).

An examination of the record fails to disclose plain error.

There is no error.


text:
    State of Connecticut v. Ralph Lombardi
    (6023)
    Borden, Daly and O’Connell, Js.
    Argued October 11
    decision released October 26, 1988

      Ralph Lombardi, pro se, the appellant (defendant).

      Mitchell Brody, deputy assistant state’s attorney, with whom, on the brief, was Seymour Rothenberg, assistant state’s attorney, for the appellee (state).
   Per Curiam.

There is no error.


text:
    Roger C. Emerick v. Walter A. Borden et al.
    (6295)
    Spallone, Norcott and Foti, Js.
    Argued October 5
    decision released October 26, 1988

      Roger C. Emerick, pro se, the appellant (plaintiff).

      Gerald R. Swirsky, for the appellees (defendants).
   Per Curiam.

There is no error.


text:
    Thomas Goudie v. Anne Mona Goudie
    (6332)
    Borden, Stoughton and Norcott, Js.
    Argued October 19
    decision released November 7, 1988

      Anne D. Goudie, pro se, the appellant (defendant).

      Gregory P. Lynch, with whom, on the brief, was Theodore R. Tyma, for the appellee (plaintiff).
   Per Curiam.

There is no error.


text:
    Clarence DiBlasi v. Theodore Brown et al.
    (6144)
    Dupont, C. J., Spallone and Foti, Js.
    Argued October 14
    decision released November 7, 1988

      Michael A. D’Amico, for the appellant (defendant Carol Russo).

      Denise Derby, for the appellee (plaintiff).
   Per Curiam.

The defendant Carol Russo’s claims of error implicate the fact finding function of the trial court. We will not retry the case. Our review fails to disclose that the factual findings of the court were clearly erroneous in view of the evidence and pleadings in the whole record, or that the decision was otherwise erroneous in law. Practice Book § 4061.

There is no error.


text:
    Marion Jean Irwin et al. v. Marshall D. Morris
    (6207)
    Spallone, Daly and Norcott, Js.
    Argued October 21
    decision released November 7, 1988

      Edward W. Manasse, for the appellant (defendant).

      Albert E. Goring, Jr., for the appellees (plaintiffs).
   Per Curiam.

Our review of the record, transcript and briefs with regard to those issues properly before us fails to disclose that the factual findings of the trial court were clearly erroneous or that its decision was otherwise erroneous in law. Practice Book § 4061.

There is no error.


text:
    Garret T. Bush III et al. v. Water Pollution Control Authority of the Town of Waterford
    (6449)
    Borden, Daly and O’Connell, Js.
    Argued October 11
    decision released November 17, 1988

      Garret T. Bush III, pro se, the appellant (named plaintiff).

      Lois J. Lawrence, for the appellee (defendant).
   Per Curiam.

The plaintiffs brought this action to enjoin the taking by eminent domain of an easement through their property for the installation of a subsurface sanitary sewer interceptor pipeline. This is an appeal from the judgment granting the defendant’s motion to dismiss the action for failure of the plaintiffs to establish a prima facie case. Practice Book § 302. The plaintiffs have briefed sixteen claims of error.

When ruling on motions to dismiss under § 302, the trial court is required to view the evidence in the light most favorable to the plaintiffs and to draw every reasonable inference in the plaintiffs’ favor. Pagni v. Corneal, 13 Conn. App. 468, 470, 537 A.2d 520, cert. denied, 207 Conn. 810, 541 A.2d 1239 (1988).

After a complete examination of the record, transcripts and briefs, and after affording each of the plaintiffs’ claims of error the appropriate scope of review, we conclude that the trial court applied the correct standard and did not err in granting the motion.

There is no error.


text:
    Richard W. Wilson v. City of New Haven et al.
    (6244)
    Borden, O’Connell and Stoughton, Js.
    Argued November 1
    decision released November 17, 1988

      Susan King Shaw, with whom, on the brief, was Jackson T. King, for the appellant (plaintiff).

      William C. Turney, for the appellee (defendant Yale University Elizabethan Club Corporation).
   Per Curiam.

There is no error.


text:
    Maureen M. Hogan v. J. William Burns, Commissioner of Transportation
    (6584)
    Borden, O’Connell and Stoughton, Js.
    Submitted on briefs November 1
    decision released November 17, 1988

      Thomas K. McDonough filed a brief for the appellant (plaintiff).

      Eugene A. Cooney and Joseph A. LaBella filed a brief for the appellee (defendant).
   Per Curiam.

There is no error.


text:
    Harold Mayer et al. v. Andrew W. Evans et al.
    (6235)
    Bokden, O’Connell and Stoughton, Js.
    Submitted on briefs November 1
    decision released November 17, 1988

      Philip F. Spillane and James D. Hirschfield filed a brief for the appellants (defendants).

      Murray J. Kessler filed a brief for the appellees (plaintiffs).
   Per Curiam.

There is no error.


text:
    Emilia R. Santos v. Luis Dominquez et al.
    (6608)
    Spallone, Daly and Foti, Js.
    Submitted on briefs November 7
    decision released November 17, 1988

      Christopher G. Winans filed a brief for the appellant (plaintiff).

      Robert M. LaRose, Michael E. Riley and Jaime B. Thomas, law student intern, filed a brief for the appellees (defendants).
   Per Curiam.

There is no error.


text:
    Anthony Ferrigno et al. v. Breakwater Key, Inc.
    (6604)
    Borden, O’Connell and Stoughton, Js.
    Argued November 2
    decision released November 17, 1988

      James M. Nugent, with whom, on the brief, was Ira B. Charmoy, for the appellant (defendant).

      Matthew B. Woods, with whom, on the brief, were Philip Baroff and Jonathan J. Klein, for the appellees (plaintiffs).
   Per Curiam.

There is no error.


text:
    Town of Wallingford v. Local 1326, IAFF, AFL-CIO, et al.
    (6903)
    Spallone, Daly and Foti, Js.
    Submitted on briefs November 7
    decision released November 17, 1988

      Edward T. Lynch, Jr., filed a brief for the appellant (plaintiff).

      William Gagne, Jr., and Barbara J. Collins filed a brief for the appellee (named defendant).

      Joseph I. Lieberman, attorney general, and Richard T. Sponzo and Charles A. Overend, assistant attorneys general, filed a brief for the appellee (defendant Board of Mediation and Arbitration).
   Per Curiam.

There is no error.


text:
    Albert D'Agostino v. Armand Amendola et al.
    (6063)
    Borden, Daly and Stoughton, Js.
    Submitted on briefs September 20
    decision released December 1, 1988

      John T. Walkley filed a brief for the appellant (plaintiff).

      Alvin M. Murray filed a brief for the appellees (defendants).
   Per Curiam.

The plaintiff sued the defendants, alleging three counts of breach of contract, one count of unjust enrichment, and one count of fraudulent conveyance. The defendants filed an answer and setoff. After a trial to the court, the court issued a brief oral memorandum of decision, and rendered judgment for the plaintiff in the amount of $84,627.48 less setoffs in the amounts of $17,320.02 and $25,000, for a judgment in favor of the plaintiff in the net amount of $42,307.46. The plaintiff did not seek from the court a further articulation of its decision.

The plaintiff appeals claiming ten grounds of error. Seven of the grounds, namely issues three through nine, either attack the factual findings of-the court or claim that the findings go beyond the pleadings in the case. The findings are not clearly erroneous, and any variations between the findings and the pleadings were waived because no objection was made at trial. DiLieto v. Better Homes Insulation Co., 16 Conn. App. 100, 104-105, 546 A.2d 957 (1988). The first two claims of error attack evidentiary rulings of the court that were clearly within its discretion. The final claim is that the court erred by not awarding prejudgment statutory interest to the plaintiff. Such interest is discretionary; Lauder v. Peck, 11 Conn. App. 161, 167-68, 526 A.2d 539 (1987); and the plaintiff has not established an abuse of the trial court’s discretion.

There is no error.


text:
    Claudia Emerick v. Roger Emerick
    (6410)
    O’Connell, Stoughton and Norcott, Js.
    Argued October 18
    decision released December 1, 1988

      Roger Emerick, pro se, the appellant (defendant).
   Per Curiam.

The judgment dissolving the parties’ marriage was rendered on December 12, 1983. The plaintiff wife appealed to this court and the defendant husband cross-appealed. Issues of custody and financial awards were decided by this court and reported in Emerick v. Emerick, 5 Conn. App. 649, 502 A.2d 933 (1985), cert. dismissed, 200 Conn. 804, 510 A.2d 192 (1986).

During the pendency of the prior appeal, the plaintiff relocated permanently to Brazil with the minor child. The defendant has filed numerous postappeal and postjudgment motions involving claims for modification of custody, financial awards, counsel fees and in defense of contempt orders regarding the defendant’s failure to comply with financial orders of the dissolution court. The trial court’s rulings on those motions constitute the basis of the present appeal.

After a complete examination of the record, transcripts and the defendant’s brief, and after affording each of the defendant’s claims of error the appropriate scope of review, we conclude that the trial court did not err in any of its rulings.

There is no error.

       The plaintiff did not file a brief.


text:
    Frank R. Wood v. Planning and Zoning Commission of the Town of East Hartford
    (6428)
    Dupont, C. J., Stoughton and Norcott, Js.
    Argued November 17
    decision released December 1, 1988

      David L. Griffith, corporation counsel, with whom, on the brief, was Barry S. Zitser, former corporation counsel, for the appellant (defendant).

      Christian R. Hoheb, for the appellee (plaintiff).
   Per Curiam.

The defendant, East Hartford Planning and Zoning Commission, appeals from the decision by the trial court sustaining the plaintiff’s appeal of the defendant’s denial of permission to enlarge a special permitted use.

After careful examination of the record, we have determined that we improvidently granted certification.

There is no error.


text:
    Town of East Hartford v. Ruth E. Cook
    (6412)
    Spallone, Daly and Foti, Js.
    Argued November 9
    decision released December 5, 1988

      Ruth E. Cook, pro se, the appellant (defendant).

      David J. Wenc, assistant corporation counsel, with whom, on the brief, was Jose R. Ramirez, assistant corporation counsel, for the appellee (plaintiff).
   Per Curiam.

The defendant has attacked the factual findings and the legal conclusions of the trial court. Our review of the record indicates no basis to support her averments of error. Practice Book § 4061.

There is no error.


text:
    Albert A. Pinchera, Jr., et al. v. Albert J. Campanelli et al.
    (6336)
    Spallone, Daly and Foti, Js.
    Argued November 9
    decision released December 5, 1988

      Irving B. Shurberg, for the appellants (plaintiffs).

      Raymond J. Wiezalis, for the appellees (defendants).
   Per Curiam.

Our analysis of the plaintiffs’ claims of error fails to disclose that the factual findings of the trial court are clearly erroneous in view of the evidence and pleadings in the whole record or that the decision is otherwise erroneous in law. Practice Book § 4061.

There is no error.


text:
    Jerome B. Rocherolle et al. v. John M. Godina et al.
    (6424)
    Spallone, Daly and Foti, Js.
    Argued November 9
    decision released December 5, 1988

      Rudra Tamm, for the appellants (plaintiffs).

      William H. Narwold, for the appellees (defendants).
   Per Curiam.

A review of the record discloses that a summary judgment was rendered in favor of the defendants before the pleadings were closed. “A motion for summary judgment may be filed by any party at any time, addressed to the claim or counterclaim, after the pleadings are closed as between the parties to the motion. Practice Book § 379.” (Emphasis added.) Esposito v. Wethered, 4 Conn. App. 641, 644, 496 A.2d 222 (1985).

There is error, the judgment is set aside and the case is remanded for further proceedings in accordance with law.


text:
    Edward T. McAteer II v. Evelyn C. McAteer
    (6324)
    Dupont, C. J., Noecott and Foti, Js.
    Submitted on briefs November 18
    decision released December 5, 1988

      James W. Auwood filed a brief for the appellant (plaintiff).
   Per Curiam.

There is no error.


text:
    Robert A. Frank et al. v. Horace Masse et al.
    (6505)
    Dupont, C. J., Spallone and Norcott, Js.
    Submitted on briefs November 15
    decision released December 13, 1988

      John Serrano filed a brief for the appellants (plaintiffs).

      Kimberly A. Knox and Richard D. Gilland filed a brief for the appellees (defendants).
   Per Curiam.

The plaintiffs are appealing following the granting of the defendants’ motion for summary judgment in an action for specific performance of a contract for the sale of real estate. The trial court rendered summary judgment when it found no genuine issue of material fact existed and that the defendants were entitled to judgment as a matter of law. Practice Book § 384. We agree.

There is no error.


text:
    Henry T. Sheldon et al. v. Walter R. Fuhr and Associates, Inc.
    (6959)
    Dupont, C. J., Spallone and Norcott, Js.
    Submitted on briefs November 15
    decision released December 13, 1988

      Robert L. Hirtle, Jr., and Mark A. Rosenblum filed a brief for the appellant (defendant).

      Vincent T. McManus, Jr., filed a brief for the appellees (plaintiffs).
   Per Curiam.

There is no error.


text:
    Robert P. Dignoti v. Morande Ford, Inc.
    (6102)
    Dupont, C. J., Spallone and Norcott, Js.
    Submitted on briefs November 15
    decision released December 13, 1988

      Philip L. Steele filed a brief for the appellant (plaintiff).

      David E. Kamins filed a brief for the appellee (defendant).
   Per Curiam.

In this appeal, each of the plaintiff’s averments of error implicates the discretionary power of the trial court. Our review of the record fails to disclose any abuse of discretion on the part of the court.

There is no error.


text:
    Robert Lee Johnson v. Warden, Connecticut Correctional Institute
    (6508)
    Dupont, C. J., O’Connell and Norcott, Js.
    Argued November 17
    decision released December 13, 1988

      Ernest J. Diette, Jr., special public defender, for the appellant (petitioner).

      Julia DiCocco Dewey, assistant state’s attorney, with whom, on the brief, was Steven Sellers, deputy assistant state’s attorney, for the appellee (respondent).
   Per Curiam.

There is no error.


text:
    International Coating Systems, Inc. v. First Taxing District of the City of Norwalk
    (6945)
    Spallone, Stoughton and Norcott, Js.
    Argued December 6
    decision released December 14, 1988

      James A. Fulton, for the appellant (defendant).

      Salvatore J. Coppola, for the appellee (plaintiff).
   Per Curiam.

There is no error.


text:
    Richard Daniels v. City of Hartford et al.
    (6947)
    Spallone, Stoughton and Norcott, Js.
    Submitted on briefs December 8
    decision released December 14, 1988

      John P. Clarkson filed a brief for the appellants (defendants).

      Dennis G. Hersh filed a brief for the appellee (plaintiff).
   Per Curiam.

There is no error.


text:
    Colline M. Gernert v. Nancy Emery et al., Executrices (Estate of Walter R. Vollhardt)
    (6841)
    Spallone, Stoughton and Norcott, Js.
    Argued December 7
    decision released December 14, 1988

      Brian J. Farrell, for the appellant (plaintiff).

      Patrice S. Noah, for the appellees (defendants).
   Per Curiam.

There is no error.


text:
    Joan E. Burry v. William T. Meredith et al.
    (6844)
    Spallone, Stoughton and Norcott, Js.
    Submitted on briefs December 9
    decision released December 14, 1988

      Joel Schlossberg filed a brief for the appellant (plaintiff).

      Bruce M. Killion filed a brief for the appellees (defendants).
   Per Curiam.

There is no error.


text:
    Stanley V. Tucker v. City of Hartford
    (6632)
    Spallone, Stoughton and Norcott, Js.
    Argued December 6
    decision released December 14, 1988

      Stanley V. Tucker, pro se, the appellant (plaintiff).

      Lisa Silvestri, deputy corporation counsel, with whom, on the brief, was Richard M. Cosgrove, corporation counsel, for the appellee (defendant).
   Per Curiam.

There is no error.


text:
    Sam Piccione, Jr., et al. v. Paul Limone et al.
    (6458)
    Spallone, Stoughton and Norcott, Js.
    Argued December 6
    decision released December 14, 1988

      Thomas F. Brown, for the appellants (defendants).

      Gerald H. Kahn, for the appellees (plaintiffs).
   Per Curiam.

There is no error.


text:
    State of Connecticut v. Steve Dattilo
    (6618)
    Borden, Spallone and Daly, Js.
    Argued December 20, 1988
    decision released January 3, 1989

      Robert M. Casale, with whom, on the brief was Tara L. Knight, law student intern, for the appellant (defendant).

      Paul J. Ferencek, deputy assistant state’s attorney, with whom, on the brief, was Timothy Pothin, former assistant state’s attorney, for the appellee (state).
   Per Curiam.

There is no error.


text:
    John J. McCarthy, Jr., et al. v. Anthony W. Esernia et al.
    (6893)
    Spallone, Norcott and Foti, Js.
    Argued January 10
    decision released January 18, 1989

      Robert L. Hirtle, Jr., with whom, on the brief, was David J. Heinlein, for the appellants (plaintiffs).

      Maurice T. FitzMaurice, with whom, on the brief, were Edward F. Spinella and Jonathan B. Peck, for the appellees (defendants).
   Per Curiam.

There is no error.


text:
    E. J. Elliott et al. v. Estate of Nellie M. Galaske et al.
    (6577)
    Borden, Daly and Foti, Js.
    Submitted on briefs December 22,1988
    decision released January 11, 1989

      Michael A. Dowling filed a brief for the appellants (plaintiffs).

      Andre L. Nagy filed a brief for the appellees (defendants).
   Per Curiam.

In this action seeking an injunction and specific performance on a lease agreement, the plaintiffs appeal from a judgment for the defendants. The plaintiffs’ claims of error involve the trial court’s interpretation of the lease agreement which implicate the factfinding function of the trial court. We will not retry the case. It is well established that the intention of the parties as to their contractual obligations is a question of fact and as such, we will not reverse the findings of the trial court unless we find they are clearly erroneous. Gallicchio Bros., Inc. v.C & S Oil Co., 191 Conn. 104, 107, 463 A.2d 600 (1983). In an exhaustive and well reasoned memorandum of decision by the state trial referee, the court’s findings are clearly set forth. Our review of the entire record fails to disclose that the factual findings of the referee were clearly erroneous in view of the evidence and pleadings, or that the decision was otherwise unsupported by the evidence. Practice Book § 4061; Branigan v. Cohen, 3 Conn. App. 580, 581, 490 A.2d 1019 (1985).

There is no error.


text:
    Anthony Lorenzo v. Frank B. Hall and Company, Inc., et al.
    (7163)
    Dupont, C. J., Norcott and Foti, Js.
    Submitted on briefs January 12
    decision released January 18, 1989

      Robert E. Beach, Jr., for the appellants (defendants).

      Gerald F. Stevens for the appellee (plaintiff).
   Per Curiam.

There is no error.


text:
    Samuel Janet et al. v. John J. Scarpetti
    (6496)
    Borden, Daly and O’Connell, Js.
    Argued October 11, 1988
    decision released January 18, 1989

      Anthony M. Guerrera, for the appellant (defendant).

      Ronald M. Stark, with whom was Peter R. Stark, for the appellees (plaintiffs).
   Per Curiam.

This action arose out of a contract by which the defendant agreed to purchase certain real estate from the plaintiff. The trial court found that the defendant had breached the contract and, by mandatory injunction, ordered him to terminate an encumbrance on the plaintiff’s title by removing the sales agreement from the Bethany land records.

We have carefully considered each of the defendant’s claims of error including a plenary review of the record, transcript and briefs of both parties. The defendant, as the appellant, has the burden of showing that there was error in the judgment from which the appeal was taken. Manzin v. United Bank & Trust Co., 6 Conn. App. 513, 517, 506 A.2d 169 (1986); B. Holden & J. Daly, Connecticut Evidence § 60i. After affording the claims of error the appropriate scope of review, we find that the defendant has not met his burden.

There is no error.


text:
    Salvatore Cicale et al. v. Redevelopment Agency of the City of Norwalk
    (6769)
    Spallone, Daly and Stoughton, Js.
    Argued January 18
    decision released January 25, 1989

      John A. Milici, with whom, on the brief, was Martina Nicholls Israely, for the appellants (plaintiffs).

      Vincent D. Flaherty, with whom, on the brief, was John T. Loforese, for the appellee (defendant).
   Per Curiam.

There is no error.


text:
    Michael R. Butts v. Larry R. Meachum, Commissioner of Correction, et al.
    (6638)
    Dupont, C. J., O’Connell and Foti, Js.
    Submitted on briefs December 15,1988
    decision released February 1, 1989

      L. D. McCallum, assistant attorney general, with whom, on the brief, was Joseph I. Lieberman, attorney general, for the appellant (respondent).

      James D. Hirschfield, for the appellee (petitioner).
   Per Curiam.

This appeal from the trial court’s granting of a petition for habeas corpus presents the same question as that decided in Plourde v. Liburdi, 207 Conn. 412, 540 A.2d 1054 (1988), which held that a person who has been sentenced to a mandatory minimum sentence under General Statutes § 14-227a (h), is not entitled to “good time credit” pursuant to General Statutes § 18-7a (c) or “employment credit” pursuant to General Statutes § 18-98a. In the present case, decided before Plourde, the trial court concluded that the petitioner, sentenced to a mandatory minimum sentence pursuant to General Statutes § 14-227a (h), was entitled to such credits.

The ruling in Plourde requires reversal of the trial court’s judgment which granted the petition for writ of habeas corpus.

There is error, the judgment is set aside and the case is remanded with direction to deny the petition for writ of habeas corpus.

       General Statutes § 18-7a (c) provides in pertinent part: “Any person sentenced to a term of imprisonment . . . may . . . while serving such sentence, by good conduct and obedience to the rules . . . earn a reduction of his sentence . . . in the amount of ten days for each month served and pro rata for a part of a month served . . .

       General Statutes § 18-98a provides in pertinent part: “Each person committed to the custody of the commissioner of correction who is employed within the institution ... for a period of seven consecutive days . . . may have one day deducted from his sentence for such period, in addition to any other earned time . . .

       The petitioner was convicted for the fourth time of operating a motor vehicle while under the influence, pursuant to General Statutes § 14-227a, and sentenced to a term of three years imprisonment, execution suspended after one year, pursuant to General Statutes 5 14-227a (h) which provides in pertinent part: “Any person who violates any provision of [General Statutes § 14-227a (a)] shall . . . (4) for conviction of a fourth and subsequent violation within five years after a prior conviction for the same offense . . . [be] imprisoned not more than three years, owe year of which may not be suspended or reduced in any manner. . . .” (Emphasis added.)


text:
    Raymond E. Humiston v. Intervest Management Company
    (6436)
    Spallone, Daly and O’Connell, Js.
    Argued January 19
    decision released Feburary 8, 1989

      Raymond E. Humiston, pro se, the appellant (plaintiff).

      William H. Narwold, with whom, on the brief, was Karen L. Goldthwaite, for the appellee (defendant).
   Per Curiam.

This wrongful discharge and defamation action was heard by an attorney trial referee who issued a detailed report with twenty-nine separate findings of fact and eight pages of legal analysis. The legal analysis thoroughly reviewed Connecticut law of both wrongful discharge and defamation. The plaintiff then moved the trial court to correct the report pursuant to Practice Book § 438 and in this motion belatedly raised the issue of the applicability of California law to his relationship with the defendant. Thereafter, the trial referee issued a supplemental report recommending the denial of the plaintiffs motion to correct and rejecting the plaintiffs assertion that California law should apply.

The trial court denied the motion to correct and accepted the referee’s report. In doing so, the trial court prepared a memorandum of decision in which it carefully reviewed the evidence, the findings and legal analysis of the trial referee, the plaintiff’s motion to correct and the supplemental report.

Under the circumstances presented here, we decline to review further the judgment of the trial court. Following the supplemental report of the trial referee, the plaintiff failed to file either an exception to the report pursuant to Practice Book § 439 or objections to acceptance of the report pursuant to Practice Book § 440. The lack of compliance with the procedural requisites necessary to preserve challenges to an attorney trial referee’s report precludes appellate review by this court. See, e.g., Seal Audio, Inc. v. Bozak, Inc., 199 Conn. 496, 508 A.2d 415 (1986); Dorsen v. Kay, 13 Conn. App. 645, 538 A.2d 1080, cert. denied, 208 Conn. 805, 545 A.2d 1102 (1988); LiVolsi v. Pylypchuk, 12 Conn. App. 527, 532 A.2d 593 (1987).

There is no error.


text:
    Robert F. Maloney, Sr. v. Susan H. Maloney Robert F. Maloney, Sr., et al. v. Susan H. Maloney
    (6294)
    (6703)
    Borden, Daly and Foti, Js.
    Argued February 3
    decision released February 15, 1989

      Susan H. Maloney, pro se, the appellant (defendant).

      Terence A. Zemetis and Earl F. Dewey II filed a brief for the appellees (plaintiffs).
   Per Curiam.

The defendant, Susan H. Maloney, has filed two appeals from the judgments rendered in two cases alleging various grounds of error. The first appeal (6294) is from an order of civil contempt and the second appeal (6703) is from the granting of the plaintiffs’ application to discharge invalid liens. This opinion will serve as our decision in both appeals.

The defendant, who is not an attorney, represented herself at the trial level and argued her appeals in this court. It is well established that our courts will allow great latitude to pro se litigants, and we have reviewed the defendant’s statements of issues and briefs in that spirit. See Maresca v. Allen, 181 Conn. 521, 521 n. 1, 436 A.2d 14 (1980). Where a defendant acts as her own counsel, as she has every right to do, however, she is bound by the same rules of procedure and evidence as any other litigant, and will receive that same consideration as if she had been represented by an attorney. Cersosimo v. Cersosimo, 188 Conn. 385, 394-95, 449 A.2d 1026 (1982).

In reviewing the defendant’s claims of error, we have followed the usual liberal policy afforded to pro se litigants and have carefully considered her claims as far as they are fairly presented upon the record. Vitale v. Crocco, 1 Conn. App. 184, 185, 469 A.2d 793 (1984). It is obvious, however, that there is no merit to her claims and that she has suffered no injustice under the law.

The defendant, as the appellant, has the burden of showing that there was error in the judgments from which the appeals were taken. General Electric Supply Co. v. Southern New England Telephone Co., 185 Conn. 583, 603, 441 A. 2d 581 (1981).We cannot find that the defendant has met her burden.

There is no error.


text:
    Beverly A. Coles v. Joseph T. Coles
    (6400)
    Borden, Daly and Foti, Js.
    Argued January 31
    decision released February 22, 1989

      Joseph T. Coles, pro se, the appellant (defendant).

      Judith Dixon, with whom, on the brief, was Marcia Tannenbaum, legal intern, for the appellee (plaintiff).
   Per Curiam.

The defendant appeals from the judgment rendered by the trial court dissolving the parties’ marriage, distributing their property and allocating their liabilities, and awarding custody of and support for the parties’ minor child to the plaintiff.

On appeal, the defendant claims six grounds of error that attack either the factual findings of the court, or its exercise of discretion. We will not retry the case. Pulaski v. Ledwith, 5 Conn. App. 629, 631, 501 A.2d 396 (1985). Our review of the record fails to disclose that the factual findings of the court were clearly erroneous in view of the evidence and pleadings, or that the decision was otherwise erroneous in law; Practice Book § 4061; or unsupported by the evidence; Branigan v. Cohen, 3 Conn. App. 580, 581, 490 A.2d 1019 (1985) . On appeal, rulings involving the court’s discretion will be disturbed only upon a showing of a clear abuse of that discretion. Leech v. Rozbicki, 17 Conn. App. 352, 353, 552 A.2d 451 (1989). Our review of the record also indicates that the court acted within its broad discretion.

The defendant, as the appellant, has the burden of showing that there was error in the judgment from which the appeal was taken. Manzin v. United Bank & Trust Co., 6 Conn. App. 513, 517, 506 A.2d 169 (1986) . After affording the claims of error the appropriate scope of review, we find that the defendant has not met his burden.

There is no error.


text:
    Jin Sung Bok et al. v. Donato Antone et al.
    (7121)
    Spallone, O’Connell and Norcott, Js.
    Argued February 15
    decision released February 22, 1989

      Thomas E. Eaton, with whom, on the brief, was Joseph E. Faughnan, for the appellants (defendants Beazley Company et al.).

      George E. Tillinghast, Jr., for the appellee (named defendant).
   Per Curiam.

There is no error.


text:
    Claire Fishman v. Middlesex Mutual Assurance Company
    (6809)
    Dupont, C. J., Stoughton and Jacobson, Js.
    Argued February 8
    decision released February 23, 1989

      Leo Gold, for the appellant (plaintiff).

      Bruce L. Levin, with whom, on the brief, was Serge G. Mihaly, for the appellee (defendant).
   Per Curiam.

There is no error.


text:
    Robert Gavin v. City of New Britain
    (7049)
    Spallone, O’Connell and Norcott, Js.
    Argued February 14
    decision released February 22, 1989

      Harold J. Geragosian, for the appellant (plaintiff).

      Joseph E. Skelly, Jr., with whom were Jason M. Dodge and, on the brief, James L. Pomeranz and Richard T. Stabnick, for the appellee (defendant).
   Per Curiam.

There is no error.


text:
    William Foley v. City of New Britain et al.
    (7048)
    Spallone, O’Connell and Norcott, Js.
    Argued February 14
    decision released February 22, 1989

      Harold J. Geragosian, for the appellant (plaintiff).

      Jason M. Dodge, with whom were Joseph E. Skelly, Jr., and, on the brief, James L. Pomeranz, for the appellees (defendants).
   Per Curiam.

There is no error.


text:
    Karel Marshak v. Sheldon Marshak
    (6225)
    Spallone, O’Connell and Norcott, Js.
    Argued February 16
    decision released March 1, 1989

      William F. Gallagher, with whom, on the brief, was Gwen B. Weltman, for the appellant (defendant).

      Sean G. FitzMaurice, for the appellee (plaintiff).
   Per Curiam.

There is no error.


text:
    Alex Campbell v. Charles Pommier et al.
    (6018)
    Spallone, O’Connell and Norcott, Js.
    Argued February 16
    decision released February 28, 1989

      Richard H. G. Cunningham, for the appellant (plaintiff).

      Arnold J. Bai, with whom were Elizabeth M. Buckmir and, on the brief, Garie J. Mulcahey, for the appellees (defendants).
   Per Curiam.

There is no error.


author: Dupont, C. J.

text:
    Sandra M. Faulkner v. Marineland, Inc.
    (6707)
    Dupont, C. J., O’Connell and Foti, Js.
    Argued December 14, 1988
    decision released March 28, 1989

      Kenneth E. Taylor, for the appellant (defendant).

      JohnR. Bryk, with whom, on the brief, was Linda R. Stark, for the appellee (plaintiff).
   Dupont, C. J.

This is an appeal by the defendant from a judgment in favor of the plaintiff in an action of replevin to regain possession of two boats, a trailer and an outboard motor. The plaintiff claimed damages for wrongful detention and the defendant counterclaimed for storage charges and interest. The case was referred to an attorney trial referee who found that the plaintiff was entitled to possession of the two boats, trailer and motor. The referee also found damages for the plaintiff arising from the defendant’s wrongful detention of the property in the amount of $714.13 in taxes, insurance and registration fees and $5000 in depreciation. The trial court accepted the attorney trial referee’s report and rendered judgment for the plaintiff. The defendant claims that it was error (1) to award $5000 in depreciation value to the plaintiff, (2) to conclude that the defendant’s counterclaim was limited to damages as a result of the replevy, and (3) to conclude that the defendant failed to prove unjust enrichment. There is no error.

The defendant first claims that there was error in the award of $5000 in depreciation value to the plaintiff. The defendant concedes, as it must, that depreciation in value during the period of detention is a proper element of damages in an action of replevin. Staub v. Anderson, 152 Conn. 694, 695, 211 A.2d 691 (1965). The defendant contends, however, that the amount of the award was unwarranted and not supported by the evidence presented.

The defendant did not file a motion to correct the findings of the attorney trial referee as required by Practice Book § 438, but did file an objection to the acceptance of the trial referee’s report, as required by Practice Book § 440, claiming that there was no evidence to support a depreciation figure of $5000, except for the testimony of the plaintiff’s father who was not an expert. The trial court overruled the objection, stating that there was sufficient evidence to support the depreciation figure. The amount of depreciation to be awarded is a question of fact. Not having filed a motion to correct any of the facts or to add further facts to those found by the attorney trial referee, the defendant has waived any right to attack the subordinate factual findings in the report. Rostenberg-Doern Co. v. Weiner, 17 Conn. App. 294, 301-303, 552 A.2d 827 (1989); Ruhl v. Fairfield, 5 Conn. App. 104, 106, 496 A.2d 994 (1985).

The defendant next claims that it was error to conclude that the defendant’s counterclaim for storage fees and interest was inappropriate. Relying on Switzer v. Turansky, 101 Conn. 60, 61, 124 A. 826 (1924), the attorney trial referee determined that the defendant’s counterclaim for storage fees and interest did not arise out of the replevy and, therefore, these costs were not recoverable. The defendant argues that the plaintiff’s failure to pay the storage fees and interest created a lien in favor of the defendant under General Statutes § 42a-7-201 et seq., and that this lien was eliminated, to the detriment of the defendant, by the plaintiff’s action in replevin. The defendant did not claim during the trial that any such lien was created, however, and therefore we cannot consider this argument in reviewing the referee’s conclusion that the defendant did not sustain damages arising out of the replevy. Accordingly, the attorney trial referee did not err in determining that the defendant’s counterclaim for damages was limited to damages arising out of the replevy. General Statutes § 52-529; Switzer v. Turansky, supra.

The defendant’s last claim relates to its second claim. The defendant argues that the attorney trial referee erred in concluding that the defendant failed to prove an unjust enrichment counterclaim for storage fees against the plaintiff. Even if the defendant had an allowable counterclaim for storage fees in an action for replevin, the referee found that the defendant presented no credible evidence to substantiate its claim of unjust enrichment. See Burns v. Koellmer, 11 Conn. App. 375, 384, 527 A.2d 1210 (1987). Weighing the evidence and judging the credibility of the witnesses is the function of the trier of fact and this court will not usurp that role. Temple v. Meyer, 208 Conn. 404, 407, 544 A.2d 629 (1988).

There is no error.

In this opinion the other judges concurred.


author: Daly, J.

text:
    Paucatuck Eastern Pequot Indians of Connecticut et al. v. Connecticut Indian Affairs Council et al.
    (6292)
    Borden, Spallone and Daly, Js.

      Argued January 17
    decision released March 28, 1989

      William H. Hescock, for the appellants (plaintiffs).

      Ann-Marie DeGraffenreidt, assistant attorney general, with whom were Robert B. Teitelman and Henry S. Cohn, assistant attorneys general, and, on the brief, Clarine Nardi Riddle, acting attorney general, Joseph I. Lieberman, former attorney general, and Robert E. Walsh, assistant attorney general, for the appellee (named defendant).

      William S. Bingham, for the appellees (defendant Eastern Pequot Indians et al.).
   Daly, J.

The plaintiffs appeal to this court from the judgment of the trial court dismissing their appeal from the decision of the named defendant, the Connecticut Indian Affairs Council (CIAC). The trial court dismissed the plaintiffs’ administrative appeal on the ground that they were not aggrieved and therefore lacked standing to pursue that appeal. We find error and hold that the plaintiffs have standing to appeal.

Certain facts are relevant to the disposition of this appeal. The plaintiffs include (1) the Paucatuck Pequot Indians of Connecticut, (2) Helen LeGault, Ruth Geer and Raymond Geer, members of that tribe, and (3) Richard Williams, a tribal member and the tribal representative on the CIAC prior to the December 3, 1983 CIAC decision that is the subject of the plaintiffs’ administrative appeal. The defendants include (1) the CIAC, (2) Stilson Sands, chairman of the CIAC at the time of the decision, (3) the Eastern Pequot Indians of Connecticut, and (4) Royal Sebastian, William Sebastian and Lawrence Sebastian, tribal members of the Eastern Pequot. There are five Indian tribes recognized in Connecticut, namely, the Schaghticoke, the Pauca-tuck Pequot, the Mashantucket Pequot, the Mohegan and the Golden Hill Paugusset and each is entitled to one representative on the CIAC. General Statutes § 47-59a, 47-59b (a).

On December 7,1982, the individual defendants and the Eastern Pequot challenged Williams’ tribal representation on the CIAC, pursuant to the regulations of the department of environmental protection, §§ 47-59b-5 and 47-59b-6 of the Regulations of Connecticut State Agencies. Adjudicatory hearings were held and, on December 3, 1983, the CIAC issued its decision. The CIAC found that, at the time of the challenge, there was no prevailing practice and usage concerning the determination of membership in the tribe, nor did the tribe have any practice or usage on file with the CIAC, as required by § 47-59b-5 of the regulations. The CIAC found it necessary to determine the eligibility and eligibility criteria for membership in the tribe, due to the absence of any tribal practice and usage for determining membership. The CIAC also declared the tribal seat on the council vacant until such time as a new tribal government was declared and the necessary documents were submitted to the Cl AC.

The plaintiffs appealed this administrative decision to the Superior Court, pursuant to General Statutes § 4-183. The court conducted a hearing on aggrievement, at which Raymond Geer was the only witness. On the basis of its finding that none of the plaintiffs was aggrieved, the court dismissed their appeal. The question for our review is whether the tribal organization and the individual plaintiffs have been aggrieved by the CIAC decision, thereby conferring upon them standing to appeal that decision.

“ ‘ “The fundamental test for determining aggrievement encompasses a well-settled twofold determination: first, ‘the party claiming aggrievement must successfully demonstrate a specific personal and legal interest in the subject matter of the decision, as distinguished from a general interest, such as is the concern of all members of the community as a whole. Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the decision.’. . ’ Cannavo Enterprises, Inc. v. Burns, 194 Conn. 43, 47, 478 A.2d 601 (1984); Bakelaar v. West Haven, 193 Conn. 59, 65, 475 A.2d 283 (1984). ‘Aggrievement is established if “there is a possibility, as distinguished from a certainty, that some legally protected interest . . . has been adversely affected.” O’Leary v. McGuinness, 140 Conn. 80, 83, 98 A.2d 660 (1953).’ Hall v. Planning Commission, 181 Conn. 442, 445, 435 A.2d 975 (1980).” State Medical Society v. Board of Examiners in Podiatry, 203 Conn. 295, 299-300, 524 A.2d 636 (1987).

The CIAC specifically ruled that it would “recognize as legitimate and eligible tribal members, any individual who presents adequate evidence that he [or] she is eligible within either the [s]tate statutes or the above criteria to be recognized as a member of the [Pauca-tuck Pequot] tribe.” The individual plaintiffs had already achieved tribal member status prior to the CIAC decision. As a result of the decision, they are required to reapply to the CIAC for a new determination of such status. The CIAC decision stripped the individual plaintiffs of their tribal member status. Thus, the individual plaintiffs have satisfied the test for determining aggrievement because they have shown that there is a possibility that a legally protected interest, namely, tribal member status, has been adversely affected by the CIAC’s decision.

The remaining issue is whether the trial court erred when it determined that the named plaintiff was not aggrieved. The United States Supreme Court has recognized two instances in which an organization has standing to sue. First, an organization has standing to sue in its own right if the associational ties of its members are injured. Warth v. Seldin, 422 U.S. 490, 510-11, 95 S. Ct. 2197, 45 L. Ed. 2d 343 (1975). Additionally, an organization has standing to sue on behalf of its injured members, even in the absence of injury to the organization itself. Id., 511; see Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333, 343, 97 S. Ct. 2434, 53 L. Ed. 2d 383 (1977). An organization may assert both types of standing within the same action. Warth v. Seldin, supra, 511.

In Connecticut Assn. of Health Care Facilities v. Worrell, 199 Conn. 609, 508 A.2d 743 (1986), our Supreme Court adopted the federal standard for representational standing as delineated by the United States Supreme Court in Hunt v. Washington State Apple Advertising Commission, supra. “ ‘[A]n association has standing to bring suit on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.’Id., 343 . . . .” Connecticut Assn. of Health Care Facilities v. Worrell, supra, 616; see State Medical Society v. Board of Examiners in Podiatry, supra, 304.

The plaintiff Paucatuck Pequot easily satisfies two of the three requirements for representational standing. It has been established in the first part of this opinion that the individual plaintiffs have standing in their own right to appeal the CIAC decision. The third requirement also has been met, because the named plaintiff does not seek money damages. See State Medical Society v. Board of Examiners in Podiatry, supra, 305. Rather, the remedy sought is a finding by the trial court that the CIAC decision is erroneous. This prayer for relief does not require the court to consider the individual circumstances of any aggrieved tribal member. The named plaintiff can litigate this case without the participation of the individual tribal members and still ensure that “the remedy, if granted, will inure to the benefit of those members of the association actually injured.” Warth v. Seldin, supra, 515. The representational standing issue in this case turns on the second requirement of Hunt, the germaneness prong.

In Humane Society of the United States v. Hodel, 840 F.2d 45, 53 (D.C. Cir. 1988), the court examined the function and rigor of the germaneness test. In doing so, the court noted that “the parameters of germaneness [had] never been explored in meaningful detail by either the Supreme Court or by any federal circuit court.” Id., 54. In Humane Society, the District Court had held that the germaneness prong had not been met because the purpose of the litigation was not central to the purpose of the organization. The court of appeals examined the Supreme Court decisions in Hunt v. Washington State Apple Advertising Commission, supra, and United Automobile Workers v. Brock, 477 U.S. 274, 106 S. Ct. 2523, 91 L. Ed. 2d 228 (1986), and concluded that “it is highly unlikely the second prong of germaneness was meant to set the narrow perimeter of centrality of purpose .... Rather, it would seem to require only that an organization’s litigation goals be pertinent to its special expertise and the grounds that bring its membership together.” Humane Society of the United States v. Hodel, supra, 56. Thus, the court characterized the germaneness prong as one mandating mere pertinence between litigation subject and organizational purpose. Id., 58. We find this reasoning persuasive and, accordingly, adopt it for our analysis of germaneness in this case.

An Indian tribe is unlike other associations because a tribe does not have a stated organizational purpose. Cf. State Medical Society v. Board of Examiners in Podiatry, supra (wherein the court noted the stated organizational purposes of the medical society as set forth in the society’s bylaws). A tribe, however, enjoys a unique status under our state and federal law that allows it to protect and preserve its cultural heritage. The United States Supreme Court has repeatedly-stressed that “Indian tribes are unique aggregations possessing attributes of sovereignty over both their members and their territory . . . they are ‘a separate people’ possessing ‘the power of regulating their internal and social relations . . . .’ ” (Citation omitted.) United States v. Mazurie, 419 U.S. 544, 557, 95 S. Ct. 710, 42 L. Ed. 2d 706 (1975), quoting United States v. Kagama, 118 U.S. 375, 381-82, 6 S. Ct. 1109, 30 L. Ed. 228 (1886); Mescalero Apache Tribe v. State of New Mexico, 630 F.2d 724, 729 (10th Cir. 1980); see also Mashantucket Pequot Tribe v. McGuigan, 626 F. Supp. 245, 247 (D. Conn. 1986). Moreover, one of the basic powers of an Indian tribe is the right to determine tribal membership. Cherokee Intermarriage Cases, 203 U.S. 76, 94, 27 S. Ct. 29, 51 L. Ed. 96 (1906); Roff v. Burney, 168 U.S. 218, 222, 18 S. Ct. 60, 42 L. Ed. 442 (1897); see Regs., Conn. State Agencies § 47-59b-21.

In light of the foregoing, we have little difficulty concluding that a suit challenging the CIAC decision that stripped the tribe of its status as members, as well as its seat on the council, is germane to the tribe’s “purposes.” If, as the defendants argue, the tribal government and its members are not aggrieved and do not have standing to appeal the decision depriving them of their status and representation, it is unclear exactly who would have standing to appeal such a decision. Our Supreme Court has noted that it will not use standing to permit the erection of “an impenetrable barrier to any judicial scrutiny of the legality of the [action] . . . .” Highgate Condominium Assn. v. Watertown Fire District, 210 Conn. 6, 16, 553 A.2d 1126 (1989). Neither will this court.

There is error, the judgment is set aside and the case is remanded for further proceedings according to law.

In this opinion the other judges concurred.

       Although the named plaintiff has been referred to as the Paucatuck Eastern Pequot Indians of Connecticut, we will use the statutory designation Paucatuck Pequot. General Statutes § 47-59b (a). The named plaintiff is one faction of the tribe and the individual plaintiffs claim to be the true members.

       CIAC is an appellee to this action, but now agrees with the appellants that they have standing to pursue the administrative appeal.

       The Eastern Pequot is a second faction of the tribe, the members of which claim to be the true tribal members.

       Regs., Conn. State Agencies § 47-59b-5 provides: “Each tribal organization seeking representation on the Council shall file a description of the organization, its membership, and the procedure for selecting a representative to the Council. Prior to being seated, the tribal representative shall file with the Council a certificate of the appropriate tribal official stating that the representative was duly selected in accordance with tribal practice and usage. If satisfied that the tribal organization is representative of the tribe, and that the tribe’s representative to the Council has been properly selected in compliance with the practice and usage of the tribe, the Council shall seat the tribal representative.”
      Regs., Conn. State Agencies § 47-59b-6 provides: “At the time a representative of a tribal organization requests to be seated at the Council, or any time thereafter, a member of the tribe for which the representative was selected, or any person aggrieved by an action of this Council, may challenge the authority of the tribal organization seeking to be seated to represent the tribe, or the validity of the process by which the representative of the tribe was selected. Upon receipt of such a challenge, the Council shall set a date for a hearing to be held and conducted in the same manner as hearings on contested applications for recognition of Indian status under these regulations. No representative shall take part in proceedings of the Council while under challenge. The burden of proof shall be on the challenger. If the Council determines that the tribal organization represents the tribe and that the challenged representative has been properly selected by the tribal organization, the Council will not entertain further challenges to the tribal organization or its representative except on a showing of substantial evidence different from that heard by the Council at the first challenge hearing. The burden shall be upon the challenging party to show, by affidavit or document any evidence, that new evidence warrants a hearing on any subsequent challenge.
      “The Commissioner of Environmental Protection may, and in the event that more than one member are challenged simultaneously shall, designate one or more additional persons, who shall be Indians within the meaning of Sections 47-59a to 47-66 of the General Statutes, as amended, and not members of the tribal organization under challenge, to sit on the Council for purposes of hearing and determining the challenges. The panel shall consist of not less than seven persons, including the Council members whose credentials have not been challenged.”

       The CIAC expanded the statutory definition of Indian, with respect to the Paueatuck Pequot, to include consideration of additional factors such as (1) clear evidence that an individual or individual’s family has been historically recognized and accepted as a member of the tribe, (2) percentage of tribal blood that is Paucatuck Pequot, and (3) percentage of Indian blood of another tribe that has or had an historical relationship with the Pauca-tuck Pequot.

       See footnote 5, supra.

       Our Supreme Court has referred to the standing of an association to bring suit on behalf of its members as both “association standing”; Connecticut Assn. of Health Care Facilities, Inc. v. Worrell, 199 Conn. 609, 614, 508 A.2d 743 (1986); and as “representational standing.” State Medical Society v. Board of Examiners in Podiatry, 203 Conn. 295, 304, 524 A.2d 636 (1987). We adopt the latter term.

       Regs., Conn. State Agencies § 47-59b-21 provides in part: “Membership determinations shall be made in accordance with the practice and usage of the tribe in which membership is claimed, and . . . persons whose names appear on the tribal rolls of the following tribes shall be considered Indians for purposes of Section 47-59a to 47-66 of the General Statutes, as amended.
      “[Paucatuck] Pequot
      “[Mashantucket] Pequot
      “Schaghticoke
      “Golden Hill
      “Mohegan.”


author: O’Connell, J.

text:
    Rose DelVecchio v. Department of Income Maintenance
    (6867)
    Dupont, C. J., O’Connell and Foti, Js.
    Argued December 14, 1988
    decision released March 28, 1989

      Brian P. Maher, for the appellant (plaintiff).

      Martin Rosenfeld, assistant attorney general, with whom, on the brief, were Clarine Nardi Riddle, acting attorney general, and Joseph I. Lieberman, former attorney general, for the appellee (defendant).
   O’Connell, J.

This is an appeal from the dismissal of the plaintiff’s administrative appeal from the denial of Title XIX benefits by a department of income maintenance hearing officer. The plaintiff claims the trial court erred in finding that her appeal did not comply with the requisite appeal statute. We find no error.

The trial court dismissed the appeal because of two defects: (1) improper service and (2) lack of a citation. The Uniform Administrative Procedure Act (UAPA), General Statutes §§ 4-183 et seq., establishes the requirements for appeals from state administrative agencies. The department of income maintenance is an agency within the scope of UAPA.

It is fundamental that appeals to courts from administrative agencies exist only under statutory authority and that there must be strict compliance with the statute that created the right to appeal. Donis v. Board of Examiners in Podiatry, 207 Conn., 674, 683, 542 A.2d 726 (1988). Moreover, the statutory requirements are jurisdictional and failure to comply with them subjects an appeal to dismissal. Id.

General Statutes § 4-183 (b) provides a choice between two methods of commencing an administrative appeal: By service of a petition on the state agency, as in civil cases, or by certified or registered mail. Here, the plaintiff elected to commence her appeal by way of the mailing procedure. In such cases, the statute mandates that the petition be mailed “to the office of the commissioner of the agency or to the office of the attorney general in Hartford.” The plaintiff sent one copy of her petition by certified mail addressed to the “Department of Income Maintenance, Fair Hearing Unit, 11.7 Main Street Extension, Middletown, Connecticut” and a second copy addressed to the “Department of Income Maintenance, 925 Housatonic Avenue, Bridgeport, Connecticut.” Neither addressee is the office of the commissioner of the department of income maintenance or the office of the attorney general. Accordingly, there has been no valid service upon the department of income maintenance and the trial court was correct in dismissing the appeal. Farmington River Watershed Assn., Inc. v.Pac, 17 Conn. App. 165, 166, 550 A.2d 1101 (1988).

In addition to proper service, a valid appeal must contain a citation signed by a competent authority and contain a notice of the return date and notice of the requirement of filing an appearance. Chestnut Realty, Inc. v. CHRO, 201 Conn. 350, 356-57, 514 A.2d 749 (1986); Atkins v. Bridgeport Hydraulic Co., 5 Conn. App. 643, 645-46, 501 A.2d 1223 (1985). Here, the plaintiff failed to annex a citation to her petition. She claims that the elimination of the requirement of service by a sheriff also abolished the necessity of a citation. That is not the law; nor is this a case of first impression.

The necessity of a citation was first ruled upon by the Appellate Session of the Superior Court in Board of Education v. State Board of Education, 38 Conn. Sup. 712, 716, 461 A.2d 997 (1983), and subsequently by this court in Atkins v. Bridgeport Hydraulic Co., supra. “ ‘The citation is a matter separate and distinct from the sheriffs return and is the important legal fact upon which the judgment rests. ... A proper citation is essential to the validity and the jurisdiction of the court.’ (Citations omitted.) Village Creek Homeowners Assn. v. Public Utilities Commission, [148 Conn. 336, 339, 170 A.2d 732 (1961)]. The purpose of General Statutes § 4-183 (b) is not to obviate the need for a citation, but rather to permit service upon the administrative agency in a manner different from ordinary civil actions, that is, by registered or certified mail.” Atkins v. Bridgeport Hydraulic Co., supra.

Either the lack of proper service upon the department of income maintenance or the lack of a citation would have been fatal to the plaintiff’s appeal.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 4-183 (b) as it appeared at the time this appeal was taken provides in pertinent part: “Proceedings for such appeal shall be instituted by filing a petition in the superior court for the judicial district of Hartford-New Britain or for the judicial district wherein the aggrieved person resides .... Copies of the petition shall be served upon the agency and all parties of record . . . except that service upon an agency may be made by the appellant mailing a copy of the petition by registered or certified mail, postage prepaid, without the use of a sheriff or other officer, to the office of the commissioner of the agency or to the office of the attorney general in Hartford." (Emphasis added.) That statute has been amended effective July 1, 1989.

       General Statutes § 4-166 (1) as it appeared at the time this appeal was taken defines “Agency” as “each state board, commission, department or officer, other than the legislature, courts, judicial review council, council on probate judicial conduct, governor, lieutenant governor, attorney general or town or regional boards of education, authorized by law to make regulations or to determine contested cases.” That statute has been amended effective July 1, 1989.


author: Foti, J.

text:
    Larry Zak et al. v. Sherman I. Weisman, Trustee
    (6863)
    Borden, Daly and Foti, Js.
    Argued February 1
    decision released March 28, 1989

      Robert S. Kolesnik, with whom, on the brief, was Maureen E. Norris, for the appellant (defendant).

      Louis Erteschik, for the appellees (plaintiffs).
   Foti, J.

The defendant appeals, pursuant to General Statutes § 52-325c (a), from the trial court’s denial of his motion for discharge of notice of lis pendens. The sole issue on appeal is whether the court erred in failing to grant the defendant’s motion. We find no error.

The following facts are pertinent to this appeal. In 1984, the plaintiffs, Larry and Beverly Zak, purchased the property in question, located on East Litchfield Road, Litchfield. At that time, they obtained a mortgage from the Thomaston Savings Bank. Sometime thereafter, when the Thomaston Savings Bank commenced foreclosure proceedings on the property, the plaintiffs sought financial help from the defendant in the amount of $22,000. The parties agreed that the defendant would attempt to obtain either a mortgage or a sale leaseback to assist them with their financial difficulties. A closing took place on December 15,1986, at which time the plaintiffs, who were not represented by an attorney, executed a quit claim deed to the defendant and entered into a lease agreement with him that contained an option to purchase. The plaintiffs concede that they realized they were in fact signing a deed transferring title to the property to the defendant and obtaining a leaseback on that property.

When the plaintiffs failed to make payments, the defendant initiated eviction proceedings. In July, 1987, a stipulated judgment was signed by counsel for the plaintiffs and by the defendant, whereby the plaintiffs were to bring themselves up to date on the lease by making payments of $600 per week. The plaintiffs submitted two checks for $600 and both were dishonored by the bank on which they were drawn.

On November 13, 1987, the plaintiffs brought this action against the defendant alleging noncompliance with the Connecticut Truth-In-Lending Act; General Statutes §§ 36-393-36-417; and the Federal Consumer Credit Protection Act; 15 U.S.C. §§ 1601-1693r; claiming fraud and duress, and alleging violations under the Connecticut Unfair Trade Practices Act. General Statutes §§ 42-110a-42-110q. The plaintiffs filed a notice of lis pendens on the land records affecting the property. The defendant moved to discharge the notice of lis pendens, and a two day hearing followed. During that hearing, the court heard contradictory testimony from the parties as to whether they intended the transaction to constitute a mortgage or a sale and leaseback. After the second day of evidence, the court entered an order denying the defendant’s motion to discharge the lis pendens.

At a hearing to discharge a lis pendens, a plaintiff is initially required to establish probable cause to sustain the validity of his claims. General Statutes § 52-325b (a); Sanstrom v. Strickland, 11 Conn. App. 211, 212, 525 A.2d 989 (1987). “This probable cause hearing is not a trial on the merits, nor is it intended as such. The plaintiff need not establish his claim by a preponderance of the evidence. The court, while not making a final decision on the merits, weighs the testimony given and the documentary proof presented. The trial court’s duty is to weigh the probabilities based on the facts and to exercise its broad discretion in determining whether there is probable cause to sustain the lis pendens.” Sanstrom v. Strickland, supra; Augeri v. C.F. Wooding Co., 173 Conn. 426, 429, 378 A.2d 538 (1977); Babiarz v. Hartford Special, Inc., 2 Conn. App. 388, 393, 480 A.2d 561 (1984).

Appellate review of a factual finding is limited both as a practical matter and as a matter of the fundamental difference between the role of the trial court and that of an appellate court. Pulaski v. Ledwith, 5 Conn. App. 629, 631, 501 A.2d 396 (1985), cert. denied, 198 Conn. 803, 503 A. 2d 1186 (1986). Our role in reviewing the denial of a motion to discharge a lis pendens is even more limited. In absence of clear error, we will not overrule the trial court which is in a much better position to weigh the credibility of witnesses. Babiarz v. Hartford, supra, 393-94. Our role “is not to duplicate the trial court’s weighing process, but rather to determine whether its conclusion was reasonable.” Id., 393. “This can only mean that if review of the record indicates that the trial court reached legal conclusions which have a reasonable basis, those conclusions must stand, even though a plenary review of them might well yield a different result. Any more complete process would lead us into the trap of determining the ultimate correctness of legal conclusions which the trial court has decided are only probably correct, and doing so on the basis of facts which the trial court has decided are only probably true, but which it has not found to be proven by a preponderance of the evidence.” (Emphasis in original.) Id., 394.

In this particular case, we cannot undertake to exercise even the limited review normally given this type of a claim because the trial court did not file a memorandum of decision; see Practice Book § 4059; and the defendant did not request an articulation from the trial court. See Practice Book § 4051. Without a written memorandum of decision or an oral recitation on the record of the court’s findings, we cannot determine if the court’s conclusions were reasonable. It is the duty of the appellant to present us with an adequate appellate record. Practice Book § 4061; Arrieu v. Litchfield, 17 Conn. App. 320, 325, 552 A.2d 445 (1989); Buchetto v. Haggquist, 17 Conn. App. 544, 554 A.2d 763 (1987). The defendant has failed to do so. We therefore have no basis on which to find error in the ruling of the trial court.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 52-325c (a) provides: “Any order entered as provided in subsection (b) of section 52-325b shall be deemed a final judgment for the purpose of appeal.”
      General Statutes § 52-325b provides: “burden of proof at hearing. AUTHORITY OF COURT, (a) Upon the hearing held on the application or motion set forth in section 52-325a, the plaintiff shall first be required to establish that there is probable cause to sustain the validity of his claim. Any property owner entitled to notice under subsection (c) of section 52-325 may appear and be heard on the issue.
      “(b) Upon consideration of the facts before it, the court or judge may: (1) Deny the application or motion if probable cause to sustain the validity of the claim is established, or (2) order such notice of lis pendens discharged of record if probable cause to sustain the validity of the plaintiffs claim is not established.”