text:
    Salvatore D. Russo et al. v. Florence Stepp
    (2358)
    Dannehy, C.P.J., Testo and Hull, Js.
    Argued February 28
    decision released May 22, 1984

      James M. TJllman, with whom, on the brief, was John R. Donovan, for the appellant (defendant).

      Thomas F. Noonan, with whom, on the brief, was Antoinette E. Grenier, for the appellees (plaintiffs).
   Per Curiam.

The defendant acquired by deed a right to use a portion of the plaintiffs’ adjoining land as a common driveway. The plaintiffs brought this action for injunctive relief restraining the defendant from obstructing the driveway, prohibiting the defendant from parking motor vehicles upon the driveway and restraining her from interfering with the plaintiffs' use of the driveway. The plaintiffs also sought contribution from the defendant for the necessary care and maintenance of the common driveway. The case was submitted to a state referee who rendered judgment for the plaintiffs from which the defendant appealed to this court.

The plaintiffs and the defendant own adjoining parcels of land on Liberty Street in Meriden. In 1951, the then owner of both parcels deeded the lot now owned by the defendant to her predecessor in title. That deed granted an easement over a portion of an existing driveway on the east side of the remainder of the grantors’ tract, in the following language: “Together with the right to pass and repass in, over and upon for purposes of ingress and egress and to use for general driveway purposes that portion of . . . other land of the grantors immediately adjacent to the westerly boundaries of the premises herein conveyed over which a driveway now runs.” The plaintiffs obtained title to their lot in 1978 subject to that easement. It was conceded that the easement is twelve feet wide and 124.56 feet deep from Liberty Street and, further, that the easement does not extend the full length of the driveway. From 1978 until a temporary injunction was issued in 1979, the defendant persisted in parking motor vehicles wholly or in part upon the driveway. The use of the driveway for such purpose is the principal question on this appeal.

The answer depends upon the construction to be given to the language in the deed used to create the easement. It is not always easy to determine what was intended by the parties. The language employed is not the only criterion. The language used therefore must be considered with reference to the situation of the property and the surrounding circumstances in order to ascertain the intention of the parties. Mackin v. Mackin, 186 Conn. 185, 189, 439 A.2d 1086 (1982).

From the terms of the deed and from the surrounding circumstances it is plain that the defendant did not acquire a right to obstruct the driveway or to permit motor vehicles to park in the driveway so as to interfere with its use by the plaintiffs. The driveway is situated on a steep downhill grade from the plaintiffs’ property to the street and is only eighteen feet wide. These physical characteristics make ingress and egress inherently dangerous when vehicles are parked on any portion of the easement and there was evidence that on several occasions vehicles of the plaintiffs, in attempting to back out of the driveway, have collided with vehicles parked within the easement. We agree with the ultimate conclusion of the referee that the defendant has no right to park motor vehicles in the driveway, except for temporary purposes, “such as pick-up or delivery of passengers or goods,” within the true intent of the deed creating the easement.

The reasoning of Center Drive-In Theatre, Inc. v. Derby, 166 Conn. 460, 465, 352 A. 2d 304 (1974), and Early v. Hall, 89 Conn. 606, 611, 95 A. 2 (1915), fully support the award of damages here.

The other questions raised on this appeal are questions of fact and therefore cannot be retried by this court.

There is no error.

       This appeal, originally filed in the Supreme Court, was transferred to this court. Public Acts, Spec. Sess., June, 1983, No. 83-29, § 2 (c).

       The driveway was widened in 1967 to eighteen feet.


source: Caselaw Access Project

author: Borden, J.

license: Public Domain

text:
    Sandra Martin v. Board of Education of the City of New Britain
    (2108)
    Testo, Dupont and Borden, Js.
    Argued March 7
    decision released May 22, 1984

      Jason E. Pearl, with whom, on the brief, was Alan L. Robertson, Jr., for the appellant (plaintiff).

      William H. Narwold, for the appellee (defendant).
   Borden, J.

In this action the plaintiff, a teacher in the New Britain school system, sought a judgment requiring the defendant to alter its method of computing her seniority. She appeals from the judgment of the trial court for the defendant on the complaint.

The case was presented to the court on the following stipulation of facts. The plaintiff was a full-time music teacher employed by the defendant in an elementary school from September, 1964, to January 28,1972. The defendant’s policy at that time was not to permit pregnant female teachers to remain in the classroom beyond their fifth month of pregnancy. On January 19, 1972, the defendant granted the plaintiff a maternity leave through the 1972-73 school year. Prior to January 26,1972, the defendant’s director of music told the plaintiff that no vacancy for a music teacher existed at the elementary level and that if she desired to return to work in September, 1973, a staff member would have to be terminated. The director referred to that staff member as an “interim replacement”; the plaintiff was not given that information until September, 1981, at a hearing held by the defendant. The stipulation states that the plaintiff now claims that had that teacher been labeled an “interim replacement” she would have wanted to pursue her position further; that the director stated at a September, 1981 hearing that in February, 1973, he offered the plaintiff an opening in music at a junior high school; and that the plaintiff recalls speaking with the director but denies any such offer.

On January 26,1973, the plaintiff requested an extension of her leave of absence, advising the defendant that the director had told her that there were no openings expected, and also requested that she be considered for openings in the elementary music department in the near future. The defendant denied her request for an extension of her leave of absence and requested that she execute a form which contained two alternative indications of her posture: a statement that she intended to return to a position for the 1973-74 school year; and a statement that “I do not plan to return to a position in the New Britain School System for the school year 1973-74 and therefore wish to tender my resignation. I will mail by February 1, 1973 a formal resignation to confirm the above.” On February 4, 1973, the plaintiff returned the form with the resignation response checked, together with a letter stating that she was sorry to submit her resignation and that she desired to return to a position in the music department in September, 1973, but was told that nothing would be available. On February 19,1973, the defendant accepted the plaintiffs resignation.

In September, 1974, the defendant rehired the plaintiff for that school year. She remained in that position until 1981. At that time budget cuts threatened termination of her employment. Teacher employment terminations are decided on the basis of seniority. The defendant computed the plaintiffs seniority from her most recent date of hire, September, 1974, rather than from her original date of hire, September, 1964, because of its interpretation of the city charter. In response to the plaintiffs request, the defendant, in September, 1981, held a hearing on the status of her seniority. Following that hearing, the defendant continued to compute the plaintiff’s seniority from September, 1974.

The gist of the plaintiffs complaint, which is less than a model of clarity, appears to be as follows: The plaintiff’s resignation was based on the defendant’s inaccurate and misleading statements of her contractual and statutory rights; her request to return was wrongfully denied; and the defendant’s computation of her seniority rights is contrary to law and an abuse of power by the defendant. At the trial the plaintiff refined these claims into a claim, inter alia, that her resignation was involuntary. In this court she claims, inter alia, that her resignation was involuntary as a matter of law.

The trial court found that the plaintiff’s resignation was voluntary, and concluded that the defendant’s interpretation of the city charter provision governing the calculation of the plaintiffs seniority rights was correct. We find no error.

As the plaintiff states in her brief, the fundamental issue on appeal involves the propriety of the court’s finding that her resignation was voluntary. Under the complaint, she had the burden of proving that it was involuntary. She chose to present her case by way of a stipulation of facts. The court found that the resignation was voluntary. Under the stipulation this critical factual finding was not clearly erroneous. Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980); Zolan, Bernstein, Dworken & Klein v. Milone, 1 Conn. App. 43, 47, 467 A.2d 938 (1983). We cannot conclude that it was involuntary as a matter of law.

The trial court’s conclusion that the defendant correctly interpreted the city charter must stand because the plaintiff has abandoned this issue on appeal. Although it was included in her preliminary statement of issues under Practice Book § 3012, and although it was included in her brief as one of the issues presented, the body of her brief is devoid of any discussion of or reference to this issue. “Under these circumstances we consider the issue . . . abandoned. Pastir v. Bielski, 174 Conn. 193, 384 A.2d 367 (1978).” Plawecki v. Angelo Tomasso, Inc., 1 Conn. App. 48, 53 n.6, 467 A.2d 944 (1983).

The plaintiff’s remaining claims on appeal are that she was the victim of gender-based discrimination in violation of both state and federal statutes. These claims are premised, however, on her claim of involuntary resignation, which she did not prove. Thus we need not consider them.

There is no error.

In this opinion the other judges concurred.

       This appeal was originally filed in the Appellate Session of the Superior Court. Public Acts, Spec. Sess., June, 1983, No. 83-29, § 3 (c).

       The defendant filed a courterclaim for a declaratory judgment which the court declined to render because of jurisdictional defects. No appeal was taken from that part of the judgment and it is not in issue in this appeal.

       This apparent contradiction is unexplained in the record.

       It is significant that the stipulation here does not state facts but rather recites claims and testimony.

       Although the September, 1981 threat of termination was subsequently withdrawn and the plaintiff continued in her employment, we were informed at oral argument on this appeal that subsequent budget cuts have resulted in her termination. Thus the case is not, as the defendant claims, moot.


author: Per Curiam.

text:
    In re Juvenile Appeal (84-5)

    (2104)
    Testo, Hull and Dupont, Js.
    Argued February 2
    decision released May 22, 1984

      John M. Andrieni, assistant public defender, with whom, on the brief, was Kenneth Rosenthal, assistant public defender, for the appellant (juvenile).

      Francis J. Carino, chief court advocate, for the appellee (state).

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

   Per Curiam.

The respondent juvenile was adjudicated a delinquent after being found guilty of robbery in the second degree in violation of General Statutes § 53a-135. The day following the robbery, the juvenile was arrested without a warrant, and approximately twelve hours later was re-arrested under a warrant. Three weeks later, the respondent filed a motion to dismiss the petition of alleged delinquency on the ground that the original warrantless arrest was without probable cause. The trial court found that the initial warrantless arrest lacked probable cause but that the subsequent arrest by warrant was based on probable cause. The court, therefore, denied the motion to dismiss on the ground that the subsequent, valid arrest warrant cured any constitutional impropriety of the prior, invalid warrantless arrest.

It is as important to state the issues which this case does not raise as to state its sole issue. This case does not involve any claim that the court lacked personal jurisdiction over the juvenile because of a lack of probable cause in the arrest warrant nor does it involve the failure to suppress evidence obtained in the period of twelve hours which elapsed between the warrantless arrest and the arrest under the warrant. It does not involve any claim by the state that the juvenile waived any defect in the original warrantless arrest or consented to the personal jurisdiction of the court obtained via that warrantless arrest. The sole issue raised on appeal is whether the petition should be dismissed where the respondent was arrested under a valid arrest warrant, charging him with the same offense with which he had been charged earlier in the day pursuant to an invalid warrantless arrest.

A series of decisions, beginning with State v. Licari, 153 Conn. 127, 214 A.2d 900 (1965), have held that an arrest warrant issued without any facts supported by oath or affirmation from which a court issuing a warrant could make an independent determination of probable cause, entitles a defendant to a dismissal of the information unless the defendant waived any defect in the information and consented to the court’s jurisdiction. State v. Darwin, 155 Conn. 124, 144, 230 A.2d 573 (1967), rev’d on other grounds, 391 U.S. 346, 88 S. Ct. 1488, 20 L. Ed. 2d 630 (1968); State v. Orsini, 155 Conn. 367, 378, 232 A.2d 907 (1967); Reed v. Reincke, 155 Conn. 591, 593, 236 A.2d 909 (1967); State v. Tropiano, 158 Conn. 412, 430-31, 262 A.2d 147 (1969), cert denied, 398 U.S. 949, 90 S. Ct. 1866, 26 L. Ed. 2d 288 (1970); State v. Saidel, 159 Conn. 96, 98, 267 A.2d 449 (1970); State v. Saia, 172 Conn. 37, 40-41, 372 A.2d 144 (1976); State v. Dennis, 189 Conn. 429, 433, 456 A.2d 333 (1983); State v. Guertin, 190 Conn. 440, 446, 461 A.2d 963 (1983); State v. Gallagher, 191 Conn. 433, 438-39, 465 A.2d 323 (1983).

None of these cases, however, involved a second, valid arrest, following a prior arrest found invalid on the ground that probable cause for the arrest had not been established. The Licari court held that dismissal of the information was the possible penalty for an arrest lacking probable cause. It did not, however, leave the decisional door open wide enough for a future holding that dismissal would be proper when a second, valid arrest charging the defendant with the same crime follows an earlier, invalid arrest. In fact, State v. Gallagher, supra, makes it clear that an illegal arrest is not a bar to a subsequent prosecution nor a defense to a valid conviction. The failure to establish probable cause at the time of an arrest does not prevent a subsequent arrest for the same offense as long as the second arrest is valid. United States v. Crews, 445 U.S. 463, 474, 100 S. Ct. 1244, 63 L. Ed. 2d 537 (1980); Keefe, “Licari: Good Law and Good Sense,” 55 Conn. B.J. 483, 487 (1981).

The trial judge properly denied the respondent’s motion to dismiss.

There is no error.

      A motion to suppress identification was simultaneously filed. Although the denial of this motion was included by the respondent in his preliminary statement of issues intended for presentation on appeal, he did not brief this issue and it is deemed abandoned. State v. Samaha, 180 Conn. 565, 565 n.1, 430 A.2d 1290 (1980).

       This appeal was originally filed with the Appellate Session of the Superior Court. Public Acts, Spec. Sess., June, 1983, No. 83-29, § 3 (c).


text:
    Araxie Markarian v. Herache Markarian
    (2348)
    Dannehy, C.P.J., Testo and Dupont, Js.
    Argued March 6
    decision released May 22, 1984

      Joseph A. O’Brien, for the appellant (plaintiff).

      Gerald A. Roisman, for the appellee (defendant).
   Per Curiam.

The plaintiff appealed from the judgment in an action for dissolution of a marriage. No objections are made to the dissolution of the marriage or to the disposition concerning the parties’ property. Specifically, the plaintiff claims that the award of periodic alimony is inadequate both in amount and duration.

The plaintiff and the defendant were married in 1947. Dissolution proceedings were instituted in 1981 and, in 1982, the matter was heard by a state referee. After finding that the marriage between the parties had broken down and allocating their property, the referee ordered the defendant to pay $200 a week in alimony to the plaintiff for a period of two years, nonmodifiable for any reason.

At the time of trial, the plaintiff was fifty-seven years old and the defendant was fifty-eight. The parties had two adult children. During most of the marriage the plaintiff was a homemaker. From 1968 to 1972 she worked part time in a school cafeteria. She had no special skill, training or education, and is presently unemployed. She recently underwent surgery. In 1971, the defendant organized and incorporated World of Nutrition, Inc., and was its only shareholder. The plaintiff played an active role in the success of this business until she was discharged by the defendant in 1981. The plaintiff presented expert testimony that the corporation has a fair market value between $240,000 and $300,000. The defendant offered no evidence with respect to the fair market value of the corporation. The plaintiff was awarded no interest in the corporation. The defendant continues to be employed by World of Nutrition, Inc., at a weekly salary of $656.49. In addition to his salary, the defendant has $37,868.44 invested in the corporation’s profit-sharing fund. He also has savings bonds, money market certificates and life insurance, the total value of which he estimated to be $4275. During 1980, the defendant invested $25,000, in a racing dog syndicate from which he realized income of $2000 in 1982. There is indication that he will derive additional income from this investment in the future.

Rehabilitative or time limited alimony is not new to Connecticut law. McCann v. McCann, 191 Conn. 447, 464 A.2d 825 (1983); Weiman v. Weiman, 188 Conn. 232, 449 A.2d 151 (1982); Scoville v. Scoville, 179 Conn. 277, 426 A.2d 271 (1979). Underlying the concept of time limited alimony is the sound policy that such awards may provide an incentive for the spouse receiving support to use diligence in procuring training or skills necessary to attain self-sufficiency. Although each case must be decided on its own facts, the relevant factors for determining whether to award time limited or permanent alimony are listed in General Statutes § 46b-82.

In order for this court to carry out its review of a trial court’s decision in a case of this nature, there must be some indication in the record as to the basis of that decision. At a minimum, the record should indicate that the trial court considered relevant statutory factors in making an alimony award containing an automatic termination date. Here, in a situation where the length of the marriage, the cause for the dissolution of the marriage, the plaintiff’s lack of vocational skills or training, age and poor health would appear to militate against time limited alimony, the trial court never explained the basis for its decision. Instead, the record before us merely consists of the general findings in the memorandum of decision which awarded alimony.

We are unable to assess the validity of the trial court’s decision on such a scanty record. Therefore, we find it necessary to remand the case to give the trial court the opportunity to indicate on the record the rationale underlying the exercise of discretion which it undertook. Only then will this court be in a position to determine whether the plaintiff has demonstrated that the court abused its discretion in failing to award the plaintiff permanent periodic alimony. Kaplan v. Kaplan, 185 Conn. 42, 440 A.2d 252 (1981).

The case is remanded to the trial court with direction to file a memorandum of decision articulating the basis upon which it awarded the plaintiff alimony limited in duration to two years.

       This appeal, originally filed in the Supreme Court, was transferred to this court. Public Acts, Spec. Sess., June, 1983, No. 83-29, § 2 (c).

       Our decision neither holds nor intimates that the trial court must make specific, detailed findings on each factor it considers pursuant to § 46b-82 or otherwise. We do, however, require that the record contain some indication as to the reasoning of the trial court in making an exercise of its discretionary powers in this type of proceeding.


text:
    Stelco Industries, Inc. v. William A. Bette et al.
    (2421)
    Testo, Dupont and Borden, Js.

      Argued February 28
    decision released May 22, 1984

      Daniel Green, for the appellant (plaintiff).

      Kevin P. Thornton, with whom, on the brief, was James R. Healey, for the appellees (defendants).
   Borden, J.

The plaintiff, Stelco Industries, Inc., appeals from a judgment of the trial court for the individual defendants, James R. Bette and William A. Bette, and for Stelco against the corporate defendant, Bette Brothers, Inc., of which the individual defendants are officers and shareholders. Stelco brought this contract action against the individual defendants and against Bette Brothers to recover the cost of material and supplies sold on account to Bette Brothers for use in the construction of housing units. Stelco claimed that a personal guaranty, signed by the individual defendants at the time the account was opened in December, 1976, obligated them to pay Bette Brothers’ present debt. The individual defendants claimed that the guaranty only extended to five units and that it expired upon completion of those units. The court concluded that the contract was unambiguous; that it was limited to five units; and that it expired upon completion of those units. With respect to Stelco’s claim for interest and attorney’s fees, it concluded that, since the contract had expired, Stelco was only entitled to interest at the statutory rate and that there was no contractual or statutory basis for awarding attorney’s fees. Accordingly, the court rendered judgment on the complaint for the individual defendants, and for Stelco against Bette Brothers on a quantum meruit basis.

The court found the following facts. In 1976, one of Stelco’s salesmen solicited Bette Brothers’ business. At that time, the individual defendants were seeking to terminate their unlimited personal liability for Bette Brothers’ debts to their then supplier. James Bette spoke with the salesman and was given the understanding that a personal guaranty to Stelco would be limited to the first five units built by Bette Brothers at Kettle-town Woods Road, Southbury, which would provide a credit history, and that thereafter the corporation’s account would be an open one. Stelco prepared an “Application For Extension of Credit from Stevenson Lumber Company” and forwarded it to Bette Brothers and to the individual defendants for their signatures. The credit application, which became the agreement of the parties, contained the legend “Single House Const. # of Units 5 Job Location Kettletown Woods Rd., Southbury, Ct. #23 Land Title Currently Held by Bette Bros., Inc.” Part of the agreement was a guaranty clause. At the time the agreement was signed, Bette Brothers owned a twenty-five lot development at Kettletown Woods Road, Southbury, of which fifteen lots remained for building and sale. The parties agreed that the principal debt is $6410.39 for the account on the Kettletown Woods Road development and $28,238.63 for a new development entitled “Lot 29 Homestead Road,” for a total balance of $34,649.02 for all purchases between December 1976 and June 1981.

Stelco first claims error in the court’s conclusions that the credit agreement and personal guaranty of the individual defendants were limited to five units and that the agreement terminated after payment was made for the material used on those units. It argues in effect that the agreement was unambiguous and that there was no language in it from which the court could conclude that the personal guaranty was limited to any particular location or number of units. Our consideration of this claim rests largely upon a determination of the scope and duration of the credit agreement.

A contract is to be construed according to what may be assumed to have been the understanding and intention of the parties. Lar-Rob Bus Corporation v. Fairfield, 170 Conn. 397, 406-407, 365 A.2d 1086 (1976). That intention is to be determined from the language used, in light of the situation of the parties and the circumstances of the transaction. In construing the contract, all relevant provisions must be considered. Id., 407.

The court found that one of the reasons the defendants began doing business with the plaintiff was that they were seeking to end their continuing unlimited personal liability to their previous supplier for the debts of their corporation. On the credit application was printed “Single House Const. # of Units 5,” the “5” having been typewritten by the plaintiff; on the following line was printed “Job Location,” and typewritten thereafter “Kettletown Woods Rd., Southbury, Ct. #23.” On the basis of these insertions and the circumstances of the parties at the time they entered into the agreement, the court concluded that the agreement was one for Stelco to provide credit to Bette Brothers for five units at Kettletown Woods Road, Southbury, and that the individual defendants, as guarantors, were liable only to the extent of the debt attributable to those units.

“The interpretation of continuing guaranties, as of other contracts, is principally a question of the intention of the contracting parties, a question of fact to be determined by the trier of facts.” Monroe Ready Mix Concrete, Inc. v. Westcor Development Corporation, 183 Conn. 348, 351, 439 A.2d 362 (1981). “Even a continuing guaranty that is, in terms, unlimited as to duration, imposes liability upon a guarantor only for such a period of time as is reasonable in light of all the circumstances of the particular case.” Id. The finding of the trial court with respect to the intent of the parties regarding the scope of their contractual commitment is subject only to limited review on appeal to determine whether it is clearly erroneous in light of the evidence in the whole record. Otto Contracting Co. v. S. Schinella & Sons, Inc., 179 Conn. 704, 709, 427 A.2d 856 (1980); Zolan, Bernstein, Dworken & Klein v. Milone, 1 Conn. App. 43, 47, 467 A.2d 938 (1983). Upon review of the whole record, we conclude that there was sufficient evidence to support the trial court’s finding.

Stelco next argues that since the court found the agreement unambiguous there was no occasion for it to engage in a process of construction founded upon evidence beyond the language of the agreement. While it is true that the court stated that the agreement was unambiguous, our review of this finding must encompass the entire record. Damora v. Christ-Janer, 184 Conn. 109, 113, 441 A.2d 61 (1981).

The court examined the language of the agreement, considered the circumstances and situation of the parties, considered all the relevant provisions of the agreement as a whole, and then concluded that the contract was unambiguous. The court did not find that the agreement was unambiguous on its face, but concluded that it was unambiguous after all the evidence was heard. We cannot, as Stelco suggests, seize upon one isolated line in the trial court’s memorandum of decision and use it as a basis to reverse an otherwise correct decision. See Coe-Park Donuts, Inc. v. Robertshaw Controls Co., 1 Conn. App. 84, 468 A.2d 292 (1983).

Stelco next claims that the court erred in admitting testimony as to the defendants’ interpretation and understanding of the credit agreement and guaranty. It maintains in effect that there was no need to admit extrinsic evidence because the agreement was clear and unambiguous. We disagree.

Although we generally do not consider an evidentiary ruling unless there is strict compliance with the requirements of Practice Book § 3060F (c) (3), we note that the parol evidence rule is a rule of substantive law rather than a rule of evidence. Ruscito v. F-Dyne Electronics Co., 177 Conn. 149, 160, 411 A.2d 1371 (1979). We therefore consider this claim.

Parol evidence is admissible (1) to explain an ambiguity appearing in the instrument; (2) to prove a collateral oral agreement which does not vary the terms of the writing; (3) to add a missing term in the writing which indicates on its face that it does not set forth the complete agreement; or (4) to show mistake or fraud. Jay Realty, Inc. v. Ahearn Development Corporation, 189 Conn. 52, 56, 553 A.2d 771 (1983); Kalosky v. Waterbury, 1 Conn. App. 105, 108, 468 A.2d 1260 (1983). When the words used in a contract are uncertain, as here, parol evidence of conversations between the parties antedating the contract may be used as an aid in determining their intent. Ruscito v. F-Dyne Electronics Co., supra, 160. It is noteworthy that Stelco offered no evidence to explain the insertions on the agreement regarding the number of units and job location.

Stelco next argues that there was no evidence from which the trial court could find that the salesman was authorized to approve credit to the defendants or to accept a credit agreement guaranty limited to five units. We disagree.

Walter Zelanin, Stelco’s credit manager, testified that a specific salesman was assigned to the account. James Bette testified that the same salesman, on behalf of Stelco, approached Bette Brothers about switching its business to Stelco and then negotiated the agreement limiting the personal guaranty to five units.

Whether the salesman was an agent of the plaintiff, and the extent and nature of his authority are questions of fact to be determined from the conduct of the parties under all the circumstances. E. Paul Kovacs & Co. v. Alpert, 180 Conn. 120, 126, 429 A.2d 829 (1980); Reynolds v. Ramos, 188 Conn. 316, 323 n.8, 449 A.2d 182 (1982). The trial court’s finding to the effect that the salesman had authority to negotiate credit terms is supported by the evidence on the record and is not clearly erroneous. See Practice Book § 3060D; Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).

Our conclusion that the court did not err in finding that the contract was limited as to Bette Brothers and the individual defendants disposes of Stelco’s claims regarding contractual interest and an award of attorney’s fees. Since that conclusion must stand, those claims must fall. .

There is no error.

In this opinion the other judges concurred.

       This appeal, originally filed in the Supreme Court, was transferred to this court. Public Acts, Spec. Sess., June, 1983, No. 83-29, § 2 (c).

       Stevenson Lumber Company is a division of Stelco.

       The guaranty provides in pertinent part: “In consideration of the granting of credit by STELCO INDUSTRIES, INC. (or any of its subsidiaries) to the person or persons who have signed the within and foregoing agreement, the undersigned guaranty payment of all obligations incurred by any of said persons under said agreement, with all costs of collection, including reasonable attorney’s fees as therein stated. . . . This shall be a continuing guarantee and shall not be affected by any extension of time, payment, modifications or additions.”

       The figure of $6410.39 presumably represents the balance owed on material supplied by Stelco beyond the five units.

       During direct examination of James Bette about his interpretation of the agreement, the plaintiff objected on the ground that his interpretation of the agreement was irrelevant because the agreement spoke for itself. The court overruled the objection, stating that if there is a claimed ambiguity the understanding of one of the parties may be considered.

       Practice Book § 3060F (c) (3) provides in part: “When error is claimed in any other ruling in a court or jury case, the brief shall include, where appropriate . . . the question or offer of exhibit; the objection and the ground on which it was based; the ground on which the evidence was claimed to be admissible; the answer, if any; the ruling; and any exception. When the basis of the ruling cannot be understood without a knowledge of the evidence or proceeding which preceeded or followed the ruling, a brief narrative or verbatim statement of the evidence or proceeding should be made. A verbatim excerpt from the transcript should not be used if a narrative statement will suffice.”


text:
    Carol C. Johnson v. Zoning Board of Appeals of the Town of Branford et al.
    (2804)
    Dannehy, C.P.J., Testo and Hull, Js.
    Argued March 7
    decision released May 22, 1984

      Carol C. Johnson, pro se, the appellant (plaintiff).

      Frank J. Dumark, for the appellee (named defendant).

      John W. Colleran, for the appellee (defendant Annette Kreske).

      Walter J. Kreske, pro se, the appellee (defendant).
   Per Curiam.

The plaintiff appeals from the decision of the Superior Court dismissing as moot his appeal from the granting of a variance by the defendant zoning board of appeals. The relevant facts are as follows.

The plaintiff is the owner of a shorefront lot in Bran-ford on which there are a dwelling house and guest house. The defendants Walter and Annette Kreske are the owners of the adjoining lot on which there are a dwelling house and an outbuilding. In 1965, the zoning regulations provided that the maximum floor area of a building on either of these lots may not exceed 30 percent of the lot area. The Kreskes’ house was a nonconforming use since the bulk floor area exceeded the maximum size by 7 percent. In 1965, the Kreskes applied to the Branford zoning board of appeals for a variance which would legalize additions to the house which had already been made. These additions had increased the extent of the nonconformance from 7 percent to 18 percent. The plaintiff appeared at the hearing and opposed the Kreskes’ application, which was nevertheless granted by the board. The variance permitted an increase in the Kreskes’ already nonconforming use from 37 percent to 48 percent of the lot area.

The plaintiff appealed to the Court of Common Pleas from the board’s decision. That court dismissed the appeal on the ground that the plaintiff had not been aggrieved. The plaintiff appealed to the Supreme Court which, upon determining that the plaintiff had been aggrieved, remanded the matter for consideration on the merits. Johnson v. Zoning Board of Appeals, 156 Conn. 622, 238 A.2d 413 (1968). During the pendency of the appeal on remand, the town of Branford amended its zoning ordinance in such a fashion that the Kreskes’ house became a conforming use since, as amended, the regulation provided that the maximum floor area of the building could not exceed 50 percent of the lot area. No appeal was taken by the plaintiff from the amendment of the zoning regulations.

On remand to the Superior Court, the defendants each claimed by way of special defense that the amended zoning regulations had rendered the plantiff s appeal moot. The court, Celotto, J., rendered judgment dismissing the appeal as moot and the plaintiff appealed.

The Supreme Court, in Edward Balf Co. v. East Granby, 152 Conn. 319, 323, 207 A.2d 58 (1965), stated that “since zoning regulations are presumed to be for the welfare of the entire community, the mere institution of a legal proceeding to determine the [party’s] rights should not be allowed to ‘freeze’ [those] rights and possibly upset the development of a community according to its comprehensive plan.” The dispute should not be settled on the basis of zoning regulations which no longer exist. Id. This lead was followed in the case of Burgarella v. Planning & Zoning Commission, 27 Conn. Sup. 400, 240 A.2d 211 (1967). In that case it was held that the appeal, based as it was on the preexisting zoning regulations, presented a moot question and should be dismissed because the relief sought would be nugatory and unavailing by reason of the subsequent change in the zoning ordinance.

Applying these principles to the case now before us, it is plain that the appeal was properly dismissed as moot since the zoning variance has been superseded by a subsequent amendment to the zoning regulations which permit the use as of right. When present regulations permit the use, the plaintiff gains nothing by his action to set aside the granting of a variance which the landowner no longer needs. In a zoning appeal the court is to take the law as it exists at the time of the review of the zoning decision complained of. See 4 Anderson, American Law of Zoning (2d Ed. 1977) § 25.31; 2 Rathkopf, The Law of Zoning & Planning (4th Ed. 1978) § 27.06. There is no practical relief which could follow were the plaintiffs appeal of the zoning variance to be sustained.

There is no error.

       This appeal, originally filed in the Appellate Session of the Superior Court, was transferred by that court to the Supreme Court, and was thereafter transferred to this court. Public Acts, Spec. Sess., June, 1983, No. 83-29, § 2 (c).

       Merged with the Superior Court on July 1, 1978.


author: Hull, J.

text:
    Bernard Jacques, Administrator, (Estate of Dolores Jacques) v. Marie Carter et al.
    (2257)
    Dannehy, C.P.J., Testo and Hull, Js.
    Argued February 28
    decision released May 22, 1984

      Richard A. Bieder, for the appellant (plaintiff).

      Allyn L. Brown, Jr., with whom, on the brief, was Kenneth G. Williams, for the appellee (named defendant).

      Snow Gene Munford, for the appellee (defendant William W. Backus Hospital).
   Hull, J.

This is an appeal in a medical malpractice action from a jury verdict in favor of the defendants, Marie Carter, a physician, and the William W. Backus Hospital, and from the denial of the plaintiffs motion to set aside the verdict. The plaintiff claims that the court erred in its charge to the jury by failing to relate the issues of abandonment of the plaintiffs decedent and of failure to provide follow-up care for her to the evidence in the case.

The following facts are not substantially in dispute. On July 11, 1973, at about 12:30 a.m., the plaintiffs decedent, Dolores Jacques, was brought to the emergency room of Backus Hospital by her son. It was reported to the attending nurse that Mrs. Jacques, an alcoholic, had fallen down some stairs at her home while vacuuming and that she had lower abdominal pain. When she was admitted to the emergency room, Mrs. Jacques was intoxicated and had reportedly taken some valium. Mrs. Jacques was incontinent and uncooperative during her stay in the emergency room. She also had diarrhea.

The attending emergency room physician, Theodore deGroot, examined Jacques and found no bruises other than an old discolored bruise on her sternum. X-rays showed no damage to the spleen nor any fractured ribs. Thereafter, Carter came on duty in the emergency room. After consulting with deGroot, Carter examined Mrs. Jacques. After Carter had an extensive conversation with Mrs. Jacques about the circumstances of her injury and her alcoholism, Carter concluded that it was not necessary to admit Mrs. Jacques to the hospital.

On July 15,1973, an ambulance attendant, who had responded to a call from the Jacques home, found Mrs. Jacques lying naked on the bathroom floor. The attendant could not revive her. Mrs. Jacques was pronounced dead at Backus Hospital. In the death certificate, the medical examiner stated that the cause of death was intra-abdominal hemorrhage due to a ruptured spleen caused by fractured ribs.

The defense stressed the evidence that Carter had instructed Mrs. Jacques in the presence of her son, who had arrived in order to take his mother home, that if she had any further pain or diarrhea, she should come back to the hospital. The defense also stressed the evidence before the jury that on July 15,1973, the president of the ambulance service, had received an hysterical call from Mrs. Jacques’ teen-aged son asking him to send an ambulance quickly to the Jacques home because, as the son stated, “My father is beating the shit out of my mother.”

The plaintiff’s complaint, in the first count, alleged ten grounds of negligence and malpractice against Carter and, in the second count, alleged the identical ten grounds of negligence against Backus Hospital, together with an eleventh allegation that Backus Hospital failed to promulgate adequate emergency room standards for a case such as that of Mrs. Jacques.

The plaintiff claimed that the jury could have found one of three theories of causation: (1) that the fall on July 11,1973, caused what is known as a delayed rupture of the spleen and that alone, when it finally ruptured, caused her death; (2) that she suffered no injury on July 11,1973, but suffered a fractured rib and rupture of the spleen and death (a) when she fell down on July 15,1973, (b) when she was being resuscitated, or (c) when she was hit by her husband; or (3) she suffered both an injury on July 11,1973, and a further contributing injury from (a), (b) or (c) above at a later date. The defendants, Carter and Backus Hospital, denied malpractice and negligence. Each defendant also claimed that Mrs. Jacques’ death was caused by no act or omission of Carter or of Backus Hospital, but rather, was caused by a beating administered to Mrs. Jacques by her husband on July 15, 1973.

The trial was a complicated one which took sixteen trial days over the course of one month. There were thirty witnesses, including eighteen physicians. There were over seventy exhibits. There was lengthy testimony concerning causation as well as the applicable standard of care.

In paragraph 7 of the first count of the complaint, the plaintiff alleges that: “Dolores Jacques’ death was caused by the failure of the defendant, Marie Carter, to exercise that degree of care arid skill ordinarily and customarily used by physicians in the general community under all of the circumstances then and there present in that she . . . (b) abandoned the plaintiff, Dolores Jacques . . . and (j) failed to provide followup care for Dolores Jacques.”

In paragraph 6 of the second count, the plaintiff repeated subparagraphs (b) and (j) as specifications of negligence against the defendant, Backus Hospital.

Concerning the allegation of abandonment, the plaintiff filed the following request to charge: “In Paragraph 7b of plaintiff’s complaint, it is alleged that defendant, Dr. Carter, abandoned the patient Delores Jacques.

“You may recall that there was testimony that Mrs. Jacques was sent home with no other instruction other than that she could return to the emergency room if she had any trouble. There was also testimony from Dr. Carter that the standard of care called for her to tell Mrs. Jacques to return if she continued to have pain and diarrhea. You may remember that Dr. Pratt testified that someone at her home should have been available to observe the patient and bring her back to the emergency room if her condition of diarrhea persisted or if new symptoms occurred. It is for you to decide whether any instructions were given at all, and if so, whether they were adequate under all the circumstances. If you find that they were not given or they were inadequate under the standard of care prevailing in the State of Connecticut in 1973, and that this failure was a substantial factor in the death of Delores Jacques, then you must find for the plaintiff on this count.

“You may also recall that there was testimony to the effect that on three occasions Mrs. Jacques telephoned the emergency room and asked for Dr. Carter, and that Dr. Carter did not return these calls. I charge you that a physician who has undertaken the treatment of a patient whose condition is such that without continuous or frequent expert attention he is likely to suffer injurious consequences, must either render such attention himself or see that some other competent person does so. . . .

“If you find that these calls were made, and that Dr. Carter made no effort to contact Mrs. Jacques, or to leave word as to instructions to be given her if she called again, and that this failure was a substantial factor in the death of Mrs. Jacques, then you must find for the plaintiff on this count.”

Concerning the failure to provide follow-up care, the plaintiff filed the following request to charge:

“In Paragraph 7j of the complaint it is alleged that Dr. Carter failed to provide follow-up care for Mrs. Jacques.

“The testimony elicited from Dr. Carter is to the effect that she did not give any written or oral instructions for her care at home to a member of her family. You may find that the evidence shows that she told Mrs. Jacques that she could return to the emergency room if her symptoms persisted. There was also testimony, which you may believe, that she telephoned the hospital and asked for Dr. Carter on three occasions and that Dr. Carter did not return her calls.

“Dr. Pratt testified that it was imperative that a responsible member of her household be given instructions for her care and told her that she should be returned to the hospital if her pain and diarrhea continued.

“Should you find that if the instructions were given-, and they were inadequate under the standard of care in Connecticut in 1973, or if no instructions for follow up care were given, and that this lack was a substantial factor in the death of Mrs. Jacques, then you must find for the plaintiff on this count.”

The plaintiff filed identical requests to charge concerning the negligence counts against Backus Hospital.

The court, in its charge, gave an unexceptionable charge on the general standard of care of a physician and then listed verbatim from the plaintiff’s complaint the ten specified ways in which the plaintiff claimed that Dr. Carter violated the requisite standard of care. The court then charged in customary language that if the plaintiff had proven one or more of the ten allegations of negligence, the jury would have to decide whether or not that act or acts were a substantial factor in causing Mrs. Jacques death. The court did not mention one word concerning the evidence to relate the allegations to the facts in the case. The court did not further define abandonment and follow-up care nor did it relate the evidence in the case to them.

The court, in its charge on the second count, followed exactly the same course. The court elaborated slightly on the hospital’s liability, pointing out to the jury that Backus Hospital was a small hospital with only about 226 beds and that its degree of care should be judged by similar hospitals. Again, however, the court did not give a legal definition of abandonment or failure to give follow-up care nor did it relate the facts of the case to either of these bases of liability.

The plaintiff made a specific exception to the charge as follows: “I think that in a case of this length, it is error for the Court not to make particular reference to some of the evidence on each of the allegations in the complaint. In a short case, perhaps it isn’t necessary because the Jury may have it all in front of them, but in this case, I think it is necessary, and I take exception to Your Honor’s failure to do that.”

The applicable law is aptly summed up in the case of Tough v. Ives, 162 Conn. 274, 287, 294 A.2d 318 (1972), wherein the court stated: “The remaining attack of the plaintiff on the charge is that the court failed to relate properly the application of the law to her contentions of fact in the case. The primary purpose of the charge is to assist the jury in applying the law correctly to the facts which they might find to be established. Vita v. McLaughlin, 158 Conn. 75, 77, 255 A.2d 848 [1969]; Worden v. Francis, 153 Conn. 578, 579-80, 219 A.2d 442 [1966]. The extent to which a court should comment on the evidence is largely a matter within its sound discretion. Worden v. Francis, supra, 580; Morosini v. Davis, 110 Conn. 358, 363, 149 A. 371 [1930]. In some cases, where the issues are complicated, peculiar, or capable of differing conclusions, comment by the court is necessary. On the other hand, if the issues are clearly enumerated and the argument of counsel has fairly presented the case, a discussion in the charge of the details of the evidence may defeat its proper purpose. Corrievau v. Associated Realty Corporation, 122 Conn. 253, 256, 188 A. 436 [1936]; Heslin v. Malone, 116 Conn. 471, 478, 165 A. 594 [1933].” (Emphasis added.)

In Phoenix Mutual Life Ins. Co. v. Brinkman, 148 Conn. 391, 397, 171 A.2d 194 (1961), the Supreme Court said that the trial court’s failure to define estoppel for the jury led to the “result that the jury were called on to apply a legal doctrine of which they could not be expected to be cognizant.”

“[It] is not the proper course for a judge to lay down the general principles applicable to a case and leave the jury to apply them, but it is his duty to inform the jury what the law is as applicable to the facts of the case.” Laukaitis v. Klikna, 104 Conn. 355, 360, 132 A. 913 (1926). A charge must be considered as to its probable effect upon the jury in guiding them to a correct verdict. State v. Gabriel, 192 Conn. 405, 419, 473 A.2d 300 (1984). The primary purpose of the charge is to assist the jury in applying thé law correctly to the facts which they may find to be established. Id.

In this case, the trial court did not give an adequate legal definition of abandonment or follow-up care. Furthermore, the court did not relate the law on these issues to the facts of the case. The issues in this case were complicated, peculiar, and capable of differing conclusions. An explanation of the law concerning abandonment and follow-up care as related to the evidence in the case was clearly necessary. “We conclude that the court’s charge did not meet the requirement that ‘[t]he instructions to the jury . . . be accurate in law, adapted to the issues and adequate to guide the jury in reaching a correct verdict.’ Berniere v. Kripps, 157 Conn. 356, 358, 254 A.2d 496 (1969); State v. Crowe, 174 Conn. 129, 134-35, 384 A.2d 340 (1977).” State v. Williams, 182 Conn. 262, 269, 438 A.2d 80 (1980).

We find that it is reasonably probable that the jury was misled.

There is error, the judgment is set aside and the case is remanded for a new trial.

In this opinion the other judges concurred.

       This appeal, originally filed in the Supreme Court, was transferred to this court. Public Acts, Spec. Sess., June, 1983, No. 83-29, § 2 (c).

       The plaintiff, Bernard Jacques, is the widower of Dolores Jacques.

       The plaintiff claims as error that the court failed to guide the jury on how to apply the law to the evidence. We will treat this claim as including the court’s failure to adequately set forth the legal definitions of abandonment and follow-up care. This court may address this issue as one encompassed within the plaintiff’s claim of error or on our own motion. See Practice Book § 3063. Furthermore, it should be noted that the plaintiff, in his request to charge against both defendants, included an expanded definition of abandonment.

       The defendant claimed that the exception to the general rule should apply where the argument of counsel has clearly presented the case. The court stated in its charge that “Counsel have adequately presented the factual situation to you.” We have, sua sponte, carefully examined the arguments of counsel and find no basis for the court’s finding of an adequate presentation to the jury of the factual situation concerning abandonment and follow-up care of Mrs. Jacques. We do not, however, consider this argument for two reasons. First, the issues were not “clearly enumerated”; Tough v. Ives, 162 Conn. 274, 287, 294 A.2d 318 (1972); and second, the defendant Carter failed to comply with Practice Book § 3060G (c) by presenting the issue in her brief with appropriate references to the transcript for our consideration.

       While we have carefully examined the other claims raised by the plaintiff on appeal, due to our disposition of this case we find it unnecessary to consider them. It is unlikely that they will arise on retrial.


text:
    Theodore LaCroix v. Board of Education of the City of Bridgeport
    (2263)
    Testo, Hull and Borden, Js.
    Argued December 8, 1983
    decision released May 29, 1984

      John M. Creane, with whom was Robert J. Malone, for the appellant (plaintiff).

      Paul E. Knag, with whom was Charles J. Heinzer, for the appellee (defendant).
   Borden, J.

The plaintiff, a tenured teacher, sued the defendant board of education for wrongful termination of his employment, claiming damages for the school years 1972 through 1980 and reinstatement to his teaching position. He appeals from the judgment of the trial court awarding him damages for the 1972-73 school year only and concluding that he was not entitled to reinstatement.

The plaintiff was hired in 1966 by the defendant. The assistant superintendent of schools notified him by a letter dated June 21, 1972, that his contract was terminated as of June 23, 1972. On July 10, 1972, he requested in writing a hearing regarding his termination. The board met on October 16,1972, and approved the termination of his contract. By letter dated October 18, 1972, the board notified the plaintiff that a hearing regarding his termination would be held on October 26,1972. The plaintiff did not attend that hearing. By a letter dated October 31,1972, the board notified him that on October 30,1972, it had considered his termination and that it was willing to furnish him with reasons for his termination or with a hearing. The plaintiff did not respond to that letter.

In May, 1974, the plaintiff filed this suit alleging that the defendant had not suspended him or terminated his contract, had not afforded him a termination or suspension hearing, had refused to assign him his duties as a teacher, and had failed to pay him for the 1972-73 and 1973-74 school years. The complaint asked, inter alia, for damages and for assignment or reinstatement as a teacher. By the time the case came to trial, the complaint had been amended to include all the school years from 1972 through 1980. The defendant filed several special defenses, only two of which are relevant to this appeal: failure to exhaust administrative remedies; and laches.

The trial court held that the defendant’s failure to provide the hearing requested in the plaintiff’s letter of July 10, 1972, resulted in a renewal, by operation of law, of his contract for the 1972-73 school year, and awarded him damages calculated on the basis of that one year. The court also held that the plaintiff was not entitled to damages for future years, or to reinstatement, because the defendant’s letter of October 31, 1972 followed by the plaintiff’s inaction resulted in a proper termination.

The plaintiff appealed, claiming that his employment has never been properly terminated and that he is, therefore, entitled to reinstatement with full back pay. The defendant did not file a cross appeal, but it did file a preliminary statement of issues, under Practice Book § 3012, raising in effect two grounds, either of which would, if valid, completely bar any recovery by the plaintiff. Since the plaintiff had already filed an appeal, and since the defendant, by raising those issues, seeks to have the judgment in favor of the plaintiff set aside, it should have filed a cross appeal under Practice Book § 3003. While its failure to do so could technically justify a refusal to consider its claims on appeal, we do consider them because they were raised in the defendant’s statement under Practice Book § 3012, were briefed by both parties and appear to be necessary to a proper determination of the appeal.

I

The defendant first claims that the plaintiff’s action is barred by his failure to exhaust his administrative remedies provided by General Statutes § 10-151 (b), which is part of the Teacher Tenure Act (the act), and that this action cannot substitute for the administrative appeal provided by General Statutes § 10-151 (f). This claim is without merit. Although the plaintiffs complaint is less than a model of clarity, the trial court read it, as do we, as an action for breach of his contract of employment. Thus, his statutory appeal rights for wrongful termination did not preclude an action for breach of contract. Petrovich v. Board of Education, 189 Conn. 585, 589, 457 A.2d 315 (1983); Cahill v. Board of Education, 187 Conn. 94, 103, 444 A.2d 907 (1982).

The defendant next argues that the court erred by rejecting its special defense of laches. The trial court found that there was no prejudice to the defendant resulting from the plaintiff’s eighteen month delay in bringing suit. This finding, which is not clearly erroneous, is fatal to the defendant’s argument. Papcun v. Papcun, 181 Conn. 618, 621, 436 A.2d 282 (1980).

II

We now turn to the claims raised by the plaintiff in his appeal. The gist of the plaintiff’s principal argument is that the defendant never validly terminated his contract of employment, because it did not follow the act, and that, therefore, he is entitled to reinstatement with back pay. In essence he claims that the trial court was correct in ruling that his employment was not validly terminated for the 1972-73 school year, but that the court was in error in ruling that the defendant complied with the act as to subsequent years. The defendant argues that it substantially complied with the act and that, therefore, the court erred in awarding the plaintiff damages even for the 1972-73 school year.

General Statutes (Rev. to 1972) § 10-151 (b), in effect in 1972, imposed three procedural requirements on a board of education in order properly to terminate a tenured teacher’s employment: (1) prior to termination, the board must give the teacher a written notice that termination of his contract is under consideration; (2) within five days of receipt of a request from the teacher, filed with the board within five days of the receipt by the teacher of the board’s written notice, the board must give the teacher a written statement of its reasons; and (3) within fifteen days of a request from the teacher for a hearing, filed within twenty days of the board’s first notice, the board must hold a hearing. It is clear that this statutory language and the procedural sequence it establishes are unyielding, clear, unambiguous and must be strictly followed. Petrovich v. Board of Education, supra, 590. Substantial compliance is insufficient. Thus, the court’s conclusion that the termination was invalid for the 1972-73 school year was correct, and the plaintiff’s contract for that year was automatically renewed as a matter of law.

It is equally clear, moreover, that the defendant’s actions were insufficient to terminate the plaintiff’s employment for any subsequent years. The trial court held that the defendant’s letter of October 31, 1972, complied with the procedural requirements of General Statutes § 10-151 (b). This was error.

The key and triggering procedural requirement of General Statutes § 10-151 (b) is that, prior to termination, the board must give the teacher written notice that termination of his contract is under consideration. By October 31,1972, the defendant had already, twice, terminated the plaintiff’s employment: once by letter of June 21,1972, notifing him of termination as of June 23, 1972, and again on October 16, 1972, when the defendant, while the plaintiff’s request for a hearing was pending before it, approved of the termination. The letter of October 31, 1972, informed the plaintiff that his termination, which had already taken place, had been taken under consideration; it did not inform him that his termination was under consideration for any future years. Cf. Petrovich v. Board of Education, supra, 588. These facts bring this case squarely within the principle that “[n]otice before termination and notice after termination are not two sides of the same coin. Once the board has committed itself by its action to a particular result it may be too late in the day to suggest a change of direction; at that stage the urge to proceed along its committed course is compelling. But before the die is cast it is still possible for persuasion to affect the result. In any event, the statutory language is clear and unambiguous. We can not assume that it is meaningless or superfluous. Hopkins v. Pac, 180 Conn. 474, 476, 429 A.2d 952 (1980). We hold that a board of education may not terminate a teacher’s contract of employment unless the board first notifies the teacher that such action is ‘under consideration.’ ” Petrovich v. Board of Education, supra, 590.

The fact that the plaintiff declined to attend the post-termination hearing which the defendant scheduled for October 26,1982, did not serve to cure the clear violation of General Statutes § 10-151 (b) already committed by the defendant. Nor did it operate to waive the plaintiff’s pretermination rights which would have flowed from a proper notice under that statutory section.

In his brief the plaintiff urges us, in the event of a new trial, to give guidance to the trial court on the issue of damages. He claims that the court, in computing the damages for 1972-73, improperly credited his summer earnings. It does not appear from the court’s memorandum of decision that it did so; the plaintiff did not request the court to articulate further in this regard; and he did not include this claim of error in his preliminary statement of issues on appeal. Under these circumstances we decline the plaintiff’s invitation.

There is error in part, the judgment is set aside insofar as it did not order the plaintiff reinstated and insofar as it did not order damages to the plaintiff for the school years subsequent to 1972-73, and the case is remanded with direction to render judgment ordering the defendant to reinstate the plaintiff and for such damages as he shall prove at a new trial limited to the issue of damages.

In this opinion the other judges concurred.

       This appeal, originally filed in the Supreme Court, was transferred to this court. Public Acts, Spec. Sess., June, 1983, No. 83-29, § 2 (c).

       General Statutes (Rev. to 1972) § 10-151 (b), which has since been amended in particulars not pertinent here, then provided in relevant part as follows: “[T]he contract of employment of a [tenured] teacher shall be renewed from year to year, except that it may be terminated at any time for one or more of the following [six] reasons . . . provided, prior to terminating a contract, a board of education shall give the teacher concerned a written notice that termination of his contract is under consideration and, upon written request filed by such teacher with such board within five days after receipt of such notice, shall within the next succeeding five days give such teacher a statement in writing of its reasons therefor. Within twenty days after receipt from a board of education of written notice that contract termination is under consideration, the teacher concerned may file with such board a written request for a hearing, which such board shall hold within fifteen days after receipt of such request. . . .”

       The plaintiff also claims a violation of his due process rights. Our conclusion on his statutory argument renders it unnecessary for us to pass on his constitutional claim.

       We note, however, that the pleadings thus far in the ease only cover the plaintiffs claims through 1980. Since we hold that his employment was not legally terminated and that he is entitled to reinstatement, on remand he should be permitted to amend his complaint further to cover the school years subsequent to 1980.


text:
    Bernie B. Diaz v. Board of Directors of the 1967 Police Pension Fund of Danbury
    (2376)
    Testo, Hull and Borden, Js.
    Argued February 29
    decision released May 29, 1984

      John M. Creane, for the appellant (plaintiff).

      Eric L. Gottschalk, with whom was Theodore H. Goldstein, for the appellee (defendant).
   Hull, J.

This appeal concerns the issue of whether the trial court lacked subject matter jurisdiction in an action brought by the plaintiff, Bernie B. Diaz, against the defendant, the board of directors of the 1967 police pension fund of Danbury, after the board had denied the plaintiff’s application for a disability pension.

The plaintiff had been a full time paid member of the Danbury police department since 1972. He claimed that, while in the performance of his duties, he suffered a disabling back injury on September 21, 1977. He received medical treatment for the injury on three separate occasions and returned to his police duties on September 28, 1977. In March of 1978, the plaintiff left work claiming that he was disabled from further performing his duties as a result of the injury sustained in 1977.

The plaintiff underwent an operation for a herniated disc in July of 1978. In December of that year, his doctor advised that he could return to light duty, but that he had a ten percent permanent partial general disability. As a result, the plaintiff applied to the board for a disability pension in 1979. The initial application was denied without prejudice. Thereafter, the plaintiff reapplied, and in May of 1980, the board denied his application.

In August of 1980, the plaintiff filed a two count complaint wherein he alleged that the defendant’s denial of his job-related disability pension application, after he had satisfied all of the eligibility requirements, was arbitrary, capricious and discriminatory; violated the plaintiff’s rights under the pension benefit agreement; violated certain provisions of the code of the city of Danbury; and denied his right to equal protection of the laws. The plaintiff claimed that he had been irreparably harmed by the board’s decision and that he had no adequate remedy at law. He, therefore, sought temporary and permanent mandatory injunctive relief to compel the board to grant him disability retirement benefits. He also sought damages in excess of $7500.

After a hearing on an order to show cause, in its -memorandum of decision, the court, Driscoll, J., denied the application for a mandatory injunction. In response to the plaintiffs motion to clarify judgment, the court further stated in a hearing that only temporary injunctive relief was denied. The defendant then moved to dismiss the action claiming that the court lacked subject matter jurisdiction in the matter. The court, Ford, J., granted the motion to dismiss. The court found that the plaintiffs action “appealed] to be in the form of an appeal.” The court held that there was no statutory procedure for an appeal from the board’s decision and that, without statutory authorization, the court lacked jurisdiction to entertain the plaintiff’s action. The plaintiff appealed claiming that the court had jurisdiction. We agree.

The plaintiff claims that the court had subject matter jurisdiction based on three separate theories: (1) that there was jurisdiction based upon a cause of action for breach of contract; (2) that the Danbury pension ordinance provides for judicial review; and (3) that the court had the power of judicial review where certain constitutional rights were affected by the action of the board.

Subject matter jurisdiction is the power of the court to hear and determine cases of the general class to which the proceedings in question belong. Shea v. First Federal Savings & Loan Assn. of New Haven, 184 Conn. 285, 288, 439 A.2d 997 (1981). In determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction shall be indulged. Connecticut Light & Power Co. v. Costle, 179 Conn. 415, 420 n.3, 426 A.2d 1324 (1980).

The trial court found that the plaintiff’s action appeared to be an appeal from the board’s decision. The court granted the motion to dismiss solely on the basis that because there was no statutory procedure for an appeal, in the technical sense, from the board’s decision, and because the complaint appeared to be an appeal, the court lacked jurisdiction. We find that a close reading of the plaintiff’s complaint indicates otherwise. The complaint alleges breach of contract and raises constitutional claims concerning due process and equal protection.

I

Pursuant to General Statutes § 7-450, the Danbury Police Union Local 891 entered into a collective bargaining agreement with the city of Danbury whereby the city adopted a pension agreement. The pension agreement was incorporated into the Danbury code of ordinances.

Section I, subsection 4 of the pension agreement of 1970 states: “When any such employee shall become permanently disabled so as to be unable to perform active service in the Danbury Police Department by reason of mental or physical disability resulting from injury received or exposure endured in the performance of his duty, he may make application for retirement to the Board of Trustees of the Policemen’s Pension Fund, and said Board of Trustees shall retire such employee on an annual pension payable monthly . . . provided such employee has been examined by two physicians and he has been found by such physicians to be unable to perform active service in said Department.”

The plaintiff claimed in his complaint that the defendant violated or breached the pension agreement because it denied his application after he had satisfied all of the requirements for eligibility. He claims that the language indicating that the board “shall” retire an employee who has established eligibility, imposed a duty on the board to do so in this case. See Graham v. Zimmerman, 181 Conn. 367, 371, 435 A.2d 996 (1980) (use of word “shall” in statute or ordinance imposes mandatory duty or obligation). To the extent that the plaintiff’s complaint alleged a breach of the pension agreement, the court had jurisdiction over the matter. Cahill v. Board of Education, 187 Conn. 94,103, 444 A.2d 907 (1982); see Petrovich v. Board of Education, 189 Conn. 585, 589, 457 A.2d 315 (1983).

Furthermore, the city ordinance which codified the pension agreement specifically contemplates such an action. Section 14-59 of the ordinance provides for a six year statute of limitations for “action[sj for amounts due under the provisions of this article . . . .”

II

The plaintiff further claims that the court had jurisdiction because in his complaint he alleged violations of his constitutional right to due process and to equal protection of the laws. The plaintiff alleged in the complaint that he had vested rights in the pension fund which were denied him and that this denial was arbitrary, capricious and discriminatory.

The Supreme Court has stated that there is no inherent right to judicial review of administrative actions. Delagorges v. Board of Education, 176 Conn. 630, 633, 410 A.2d 461 (1979). That court has also stated that “[tjhere is ordinarily no constitutional right to judicial review of administrative action.” (Emphasis added.) Rybinski v. State Employees’ Retirement Commission, 173 Conn. 462, 472, 378 A.2d 547 (1977). While it is true that ordinarily there is no right to judicial review of administrative action where there is no statutory right of appeal, the Supreme Court has held that there are situations where such judicial review is permitted.

In State v. Vachon, 140 Conn. 478, 486, 101 A.2d 509 (1953), the Supreme Court found that while it is not essential to the constitutionality of a statute authorizing an administrative board to make orders that it contain a provision for an appeal, in the technical sense, from the board’s action, “[i]f any person claims to be harmed by such an order, his constitutional right to due process is protected by his privilege to apply to a court.” The Vachon court specifically stated that “[a] review of the action of such a board is not precluded.” Id. It is clear, therefore, that under certain circumstances, a court has jurisdiction to review administrative action although there is no statutory procedure for an appeal. The plaintiff presented constitutional claims to the trial court and the trial court failed to rule on them. Because it is clear that review of administrative action is permitted in certain instances and because the plaintiff properly presented the aforementioned constitutional claims to the court fqr its consideration, the court erred in dismissing the case for lack of subject matter jurisdiction solely on the basis that the plaintiff’s complaint was an appeal and that there was no statutory right thereto.

The Supreme Court has stated that where an appeal is improper, a party is not without recourse to protect any claimed property interest from unconstitutional deprivation or impairment. Rybinski v. State Employees’ Retirement Commission, supra, 467 n.2. The plaintiff in this case claims a property interest in the pension benefits. His complaint alleges a capricious and arbitrary deprivation of that interest. The court’s conclusion that any action brought to assert this claim sounds like an appeal from the board’s decision which cannot be entertained leaves the plaintiff without recourse. Whether or not there is any merit to his claim, the plaintiff is entitled to such recourse where he has properly pleaded the claim as he has in this case.

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

In this opinion the other judges concurred.

       This appeal, originally filed in the Supreme Court, was transferred to this court. Public Acts, Spec. Sess., June, 1983, No. 83-29, § 2 (c).

       Article 14 of the Danbury code of ordinances incorporates the pension agreement. Section 14-59, entitled “Limitation of Actions For Pensions,” provides: “No action for amounts due under the provisions of this article shall be brought unless within six (6) years after the right of action shall accrue. Persons legally incapable of bringing an action when the right shall accrue may sue at any time within three (3) years next after becoming legally capable of instituting suit. All amounts not claimed within said periods shall remain part of the 1967 Police Pension Fund.”


author: Testo, J.

text:
    Hanover Hall et al. v. Planning Board of the City of Stamford
    (2397)
    (2398)
    Testo, Hull and Borden, Js.
    Argued March 8
    decision released May 29, 1984

      Gordon R. Paterson and Isadore M. Mackler, with whom, on the brief, were Elinor J. Paterson and Saul Kwartin, for the appellants (plaintiffs).

      Edward J. Frattaroli, with whom, on the brief, was William J. Hennessey, Jr., for the appellee (defendant).
   Testo, J.

In this action, the plaintiffs, landowners in the city of Stamford, are seeking a declaratory judgment and permanent injunctive relief against the defendant planning board to invalidate certain amendments made in 1981 to the city’s master plan. The plaintiffs alleged in their complaint that the defendant failed to comply with the appropriate statutory notice provisions of the Stamford charter. Because the city of Stamford has not adopted the planning and zoning provisions of the General Statutes, the notice provisions of General Statutes §§ 8-3 and 8-23 do not apply to actions of the defendant planning board. Planning and zoning are governed, instead, by the city charter provisions. See Sheridan v. Planning Board, 159 Conn. 1, 4, 266 A.2d 396 (1969). Pursuant to § 520 of the charter, it is the duty of the planning board to prepare, adopt and amend the master plan, which is the general land use plan for the physical development of Stamford. Under § 522, 34567the zoning map may not be amended by the planning board to permit any use which is contrary to the use established for the area in question by the master plan. Amendments to the master plan are governed by § 522.2 which states: “The Master Plan may be amended by the Planning Board provided, prior to such action, the Board shall hold at least one public hearing, notice of which shall be given as hereinafter provided in § 522.6, which notice shall include a clear and accurate map showing the bounds of any area affected together with the Board’s reasons therefor.” (Emphasis added.) The notice requirements are included in § 522.6 which states in relevant part: “Notice of each public hearing held with respect to the adoption or amendment of the Master Plan shall be given by publishing in an official paper the time, place and purpose of such hearing, together with a clear and accurate map showing the bounds of any area or areas affected. ” (Emphasis added.)

The notice published by the defendant consisted of a detailed written statement listing and describing the proposed thirteen land use categories, and included a map showing an outline of the corporate limits of the city of Stamford in “hatched” marks. Under the map was the statement “Area Affected Shown Hatched.” Detailed copies of the amended map and the defendant’s resource information were made available to the public at locations specified in the notice. The trial court, after finding that the plaintiffs had satisfied all elements necessary to obtain a declaratory judgment, denied the plaintiffs relief and found that the defendant’s notice as published was adequate and in conformity with that required by the Stamford charter. The court stated that § 522.6 contains no directive that the map do anything more than delineate those areas which have been affected. Since the amendment affected the entire corporate limits of Stamford, the court concluded that a map generally outlining that area was legally sufficient. The plaintiffs have appealed. It is the plaintiffs’ claim that the trial court erred in concluding that the defendant’s publication of a map merely outlining the geographic boundaries of the city meets the notice requirements of “a clear and accurate map showing the bounds of any area or areas affected,” as specified in the charter for amendment of the master plan. Central to the plaintiffs’ argument is that the required map must clearly show the geographical location of each land use category and how that land use category has been affected, since the words “area or areas affected” refer to the geographical location of each land use category. The plaintiffs maintain that the defendant’s failure to publish a map showing the boundaries of the specific land use categories affected rendered the published notice a nullity in that it did not afford property owners in Stamford a fair opportunity to learn if a proposed land use category might affect their property so that they could properly prepare for the public hearing. We agree.

The thrust of the plaintiffs’ claim revolves around an interpretation of the language contained in § 522.6 of the charter concerning the type of map required in the published notice. Certain rules of statutory construction are applicable here. A fundamental tenet of statutory construction is that, in the interpretation of statutes, the intent of the legislature is expressed in the words it used. P.X. Restaurant, Inc. v. Windsor, 189 Conn. 153, 159, 454 A.2d 1258 (1983); see also Verrastro v. Sivertsen, 188 Conn. 213, 220, 448 A.2d 1344 (1982). Words used in the statutes are to be construed according to their commonly approved meaning; General Statutes § 1-1 (a); see Board of Trustees v. Commissioner, 1 Conn. App. 22, 25, 467 A.2d 925 (1983); and common sense must be used in their interpretation since it is assumed that the legislature intended to accomplish a reasonable and rational result. Stoni v. Wasicki, 179 Conn. 372, 376-77, 426 A.2d 774 (1979).

The master plan divides Stamford into land use categories and defines each in § 522. Any amendments to the master plan require a published notice of the public hearing and a clear and accurate map indicating the outer boundaries of any area or areas affected by the amendment. Arguably, the words in question, “area or areas affected” could refer to the result of the proposed changes on the boundaries of each land use category or the overall result of the changes on the city as a whole. In the present case, virtually every parcel of land would be affected by the proposed amendment to the master plan. The defendant’s position is that the words must refer to the city as a whole because of the comprehensiveness of the amendment. To interpret the words in this manner would imply no distinction in the land use categories and make the division into land use categories superfluous. Moreover, if the amendment to the master plan had proposed a change affecting one land use category, the charter provisions, §§ 522.2 and 522.6, would clearly require the published notice to include a map marking that change on the boundaries of that land use category and any other categories the amendment inadvertently affected. Extending this line of reasoning to the facts of this case, the amendment in question, which changes the boundaries of numerous land use categories, requires that a map clearly indicate those new boundaries so that the property owners within them have notice of such changes. We can find no logical reason for Stamford to be divided into land use categories if the published notice of an amendment to the master plan can, on the ground that the entire city has been affected by the amendment, include a map which is merely an outline of the corporate limits of the city. The map was inadequate to apprise the owners of land within each land use category of how their particular parcel would be affected, if at all, by the amendment.

It is axiomatic that compliance with prescribed notice requirements is a prerequisite to any valid action by a municipality and that the failure to give proper notice constitutes a jurisdictional defect rendering the action of the municipality null and void. See, e.g., Miller v. Eighth Utilities District, 179 Conn. 589, 594, 427 A.2d 425 (1980); Wright v. Zoning Board of Appeals, 174 Conn. 488, 491, 391 A.2d 146 (1978); Jarvis Acres, Inc. v. Zoning Commission, 163 Conn. 41, 44, 301 A.2d 244 (1972); First Church of Christ, Scientist v. Friendly Ice Cream, 161 Conn. 223, 225-26, 286 A.2d 320 (1971); Aurora v. Zoning Board of Appeals, 153 Conn. 623, 625, 220 A.2d 277 (1966). “The fundamental reason for the requirement of notice is to advise all affected parties of their opportunity to be heard and to be apprised of the relief sought.” Wright v. Zoning Board of Appeals, supra, quoting Slagle v. Zoning Board of Appeals, 144 Conn. 690, 693, 137 A.2d 542 (1957). The statutory notice requirements as specified in the Stamford charter for amending the master plan were not complied with by the defendant.

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

In this opinion the other judges concurred.

       The Stamford charter was enacted pursuant to a Special Act of the General Assembly in 1953. 26 Spec. Laws 1228, No. 619.

       Section 522 provides: “The Master Plan shall be a general land use plan for the physical development of the municipality. The plan shall show the division of Stamford into land use categories such as, but not restricted to, the following:
      1. Residential — single family plots one acre or more.
      2. Residential — single family plots less than one acre.
      3. Residential — multi-family — low density.
      4. Residential — multi-family — medium density.
      5. Commercial — local or neighborhood business.
      6. Commercial — general business.
      7. Industrial.”

       This appeal, originally filed in the Supreme Court, was transferred to this court. Public Acts, Spec. Sess., June, 1983, No. 83-29, § 2 (c).


text:
    Ram Roofing and Sheet Metal Company, Inc. v. A.B.C. Plumbing and Heating, Inc.
    (2407)
    Dannehy, C.P.J., Testo and Hull, Js.
    Argued April 3
    decision released May 29, 1984

      Arthur M. Lewis, with whom, on the brief, was Gregory A. Sharp, for the appellant (defendant).

      Francis C. Vignati, for the appellee (plaintiff).
   Per Curiam.

The defendant appeals from the trial court’s decision denying its motion to open the judgment. On appeal the defendant assigns as error (1) the trial court’s failure to credit it for a payment made to the plaintiff in the amount of $20,000; and (2) the trial court’s failure to articulate the factual basis of either its decision or of its denial of the motion to open the judgment.

The defendant is a plumbing and heating contractor and the plaintiff was a subcontractor who primarily installed heating and cooling systems in buildings. The plaintiff, in this action, sought money damages for services rendered by it in accordance with several contracts between the parties. The defendant’s amended answer denied the material allegations of the complaint and, by way of counterclaim, alleged that the defendant had overpaid the plaintiff and was entitled to reimbursement. After a trial to the court, the trial judge found the issues for the plaintiff on the complaint and on the counterclaim and rendered judgment for the plaintiff for $15,421.08, together with costs.

The only contract in dispute was for work performed by the plaintiff at the Plainfield Dog Track. After certain revisions agreed upon by the parties, the contract price for performance of the plaintiff’s services on that contract was $113,700. The relevant factual issue before the trial court concerned how many checks in the amount of $20,000, the plaintiff had received from the defendant as payment in February, 1976.

It is the defendant’s position that the trial court erroneously failed to credit one of two $20,000 checks. In essence, the defendant is requesting a retrial of the facts. On appeal, however, the function of this court is limited solely to the determination of whether the decision of the trial court is clearly erroneous. Practice Book § 3060D. “ ‘ “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.” ’ Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).” Frumento v. Mezzanotte, 192 Conn. 606, 617-18, 473 A.2d 1193 (1984); Hallmark of Farmington v. Roy, 1 Conn. App. 278, 280, 471 A.2d 651 (1984); see also Zolan, Bernstein, Dworken & Klein v. Milone, 1 Conn. App. 43, 467 A.2d 938 (1983).

Although the facts were in dispute, there was a plethora of evidence which, if credited, support the trial court’s conclusion. The plaintiff presented testimony by its president, its bookkeeper, and its accountant that it received a check in the amount of $20,000 from Davis Associates made payable jointly to the plaintiff and the defendant. It endorsed that check and then turned it over to the defendant in exchange for the defendant’s issuing a check payable to the plaintiff in the same amount of $20,000. The plaintiff also provided the court with its complete books of record, including the defendant’s cancelled check for $20,000. The defendant’s records were incomplete because, as it explained to the court, it had lost all of the records pertaining to this period of time except for a few cancelled checks. It is a fundamental principle that the trial court is in the best position to determine the facts in a given case, to assess the credibility of witnesses and to weigh their testimony. Kaplan v. Kaplan, 186 Conn. 387, 391, 441 A.2d 629 (1982); cf. Robben v. Hartford Electric Light Co., 1 Conn. App. 109, 114, 468 A.2d 1266 (1983). We hold that there was ample evidence presented to support the trial court’s conclusion that one check for $20,000 was paid to the plaintiff in February, 1976. The court’s conclusion was not clearly erroneous.

The defendant next claims that the court’s memorandum of decision and its decision denying the motion to open judgment failed to state the factual basis for its decisions. The defendant had the option to file a motion for further articulation of the court’s decisions as provided for in Practice Book § 3082. See, e.g., Foster v. Waterford, 186 Conn. 692, 694 n.4, 443 A.2d 490 (1982). In addition, if the defendant’s claim were with merit, this court could resort to the remedy provided by Practice Book § 3060D and remand the case for further findings. See State v. Lafferty, 191 Conn. 73, 76, 463 A.2d 238 (1983); Grunschlag v. Ethel Walker School, Inc., 189 Conn. 316, 320, 455 A.2d 1332 (1983); cf. Urban v. Leggio, 1 Conn. App. 226, 228, 470 A.2d 1226 (1984). After closely examining the trial court’s memorandum of decision and its oral decision denying the motion to open judgment, we find each completely adequate to enable us to render a proper disposition of this case.

There is no error.

       This appeal, originally filed in the Supreme Court, was transferred to this court. Public Acts, Spec. Sess., June, 1983, No. 83-29, § 2 (c).

       If the trial court fails to articulate sufficiently the factual basis for its decision, then this court under Practice Book § 3060D may remand the case for a further articulation of the basis of the trial court’s decision. Rompe v. King, 185 Conn. 426, 433 n.2, 441 A.2d 114 (1981).