author: Per Curiam.

text:
    Stan Kaplan v. Administrator, Unemployment Compensation Act et al.
    (3314)
    Dupont, C.P.J., Borden and Daly, Js.
    Argued April 3—decision
    released May 28, 1985

      JohnF. Meehan, for the appellant (defendant United Parcel Service, Inc.)

      Gregg D. Adler, for the appellee (plaintiff).

      Donald E. WasiJc, assistant attorney general, with whom, on the brief, was Joseph I. Lieberman, attorney general, for the appellee (named defendant).
   Per Curiam.

This is an appeal by the plaintiff’s employer from a judgment of the Superior Court which reversed the decision of the employment security board of review. That decision had denied the plaintiff unemployment benefits. The board of review adopted the findings of fact and decision of the appeals referee as its own. The appeals referee had reversed the administrator’s initial finding of eligibility of unemployment benefits.

The appeals referee found the following facts: The plaintiff was employed by the defendant United Parcel Service, Inc., for twelve years. At the time of his termination, the plaintiff was a package sorter. He refused to follow the prescribed procedure of holding a marking crayon in his hand while sorting packages because he felt it interfered with his grip and made his job unsafe. He was warned that disciplinary measures would follow if his failure to follow the procedure continued. He refused to resolve the dispute through the standard grievance process and left the job. No one had been injured using this procedure during the seventeen years it had been used.

The appeals referee concluded that, absent any proof that the procedure was actually dangerous to the plaintiff, the plaintiffs failure to resolve his complaint through the grievance process indicated that he left work voluntarily and without sufficient cause. The review board agreed.

The trial court found the review board’s, and hence the appeals referee’s, decision to be illegal, arbitrary and unreasonable. During the course of the proceedings in the trial court, the administrator agreed with the plaintiff that he had been improperly denied benefits. The employer, therefore, is the sole appellant, the administrator having aligned itself with, and having filed a brief in support of, the plaintiff’s position. The employer argues that the trial court exceeded its scope of review. We agree.

“[T]he power of the trial court in appeals of this kind is very limited: ‘[T]he Superior Court does not try the matter de novo; it is not its function to adjudicate questions of fact, nor may it substitute its own conclusions for those of the board.’ ” Johnson v. Administrator, 3 Conn. App. 264, 267, 487 A.2d 565 (1985). Its function is to determine only if the board acted rationally and logically or illegally and in abuse of its discretion. Id., 267-68.

The trial court, however, went beyond the bounds of its scope of review. It reviewed the record and gave greater weight to evidence before the appeals referee than the appeals referee deemed warranted. It further found that the plaintiff should not be required to follow the grievance process if it meant using the protested procedure for a long period of time. The trial court, in so doing, adjudicated the facts on its own and substituted its conclusions for those of the board and referee, which it was not permitted to do.

The trial court “ ‘is bound by the findings of subordinate facts and reasonable factual conclusions made by the appeals referee where, as here, the board of review adopted the findings and affirmed the decision of the referee.’ ” Id., 268. A review of the record reveals that the facts found by the referee were neither unreasonable nor illogical, and that the referee did not act illegally or in abuse of its discretion. The trial court, therefore, was bound by the referee’s facts and could not add facts which the court found more persuasive to reverse the board’s decision.

There is error, the judgment is set aside and the case is remanded with direction to reinstate the decision of the board of review.


source: Caselaw Access Project

author: Dupont, C.P.J.

license: Public Domain

text:
    State of Connecticut v. Joseph F. Candito
    (2622)
    Dupont, C.P.J., Borden and Spallone, Js.

      Argued March 5
    decision released May 28, 1985

      Richard S. Cramer, for the appellant (defendant).

      Judith Rossi, special assistant state’s attorney, with whom, on the brief, were Carl Schuman and Peter Markle, assistant state’s attorneys, for the appellee (state).
   Dupont, C.P.J.

The defendant appeals from a judgment of the trial court, rendered after a jury found him guilty of the crime of failure to appear in violation of General Statutes § 53a-172. On May 25, 1982, the defendant pleaded guilty to five felony charges for which the court scheduled sentencing for June 28, 1982. The defendant posted bonds which totaled $75,000, and gave his written promise to appear on all scheduled court appearance dates. The probation officer conducting the presentence investigations was not able to contact and interview the defendant until June 28, 1982, the day of the scheduled sentencing. Consequently, sentencing was postponed until the following day, June 29, 1982, and the defendant was so informed by the probation officer.

The defendant failed to appear in court on June 29, 1982. On July 12, 1982, he was taken into custody by Connecticut authorities in New Jersey, after he had been arrested on a fugitive warrant for his failure to appear for sentencing. After being returned to Connecticut, the defendant was sentenced on the five felony charges. On July 29, 1983, the court rendered judgment on the jury verdict of guilty of the crime of failure to appear.

On appeal from that judgment, the defendant claims that the trial court erred: (1) in finding that the evidence of wilfulness was sufficient to support the jury verdict; (2) in imposing a sentence which violated the defendant’s constitutional rights to due process and to equal protection, and his right to a jury trial; (3) in failing to instruct the jury that its consideration of judicially noticed facts did not constitute a conclusive finding; and (4) in improperly admitting into evidence the specific charges pending against the defendant at the time he failed to appear.

The defendant contends that the jury’s verdict that he was guilty of wilful failure to appear, in violation of General Statutes § 53a-172, was not reasonably supported by the evidence. The defendant claims, therefore, that the trial court should have granted his motion for a judgment of acquittal. The standard of appellate review of a denial of a motion for a judgment of acquittal has been settled by judicial decision. State v. Heinz, 193 Conn. 612, 625, 480 A.2d 452 (1984). The issue to be determined is whether the jury could have reasonably concluded, from the facts established and the reasonable inferences which could be drawn from those facts, that the cumulative effect was to establish guilt beyond a reasonable doubt. State v. Duhan, 194 Conn. 347, 355,481 A.2d 48 (1984); State v. Heinz, supra, 625. The facts and the reasonable inferences stemming from the facts must be given a construction most favorable to sustaining the jury’s verdict. State v. Heinz, supra.

The trial court instructed the jury as follows: “In the state of Connecticut the word ‘willfully’ as used in this statute implies the doing of a forbidden act, purposefully in violation of the law.” That statment of the law is legally correct. State v. Hoskins, 35 Conn. Supp. 587, 596, 401 A.2d 619 (1978). In order to prove the “wilful” element of General Statutes § 53a-172, the state must prove beyond a reasonable doubt either that the defendant received and deliberately ignored a notice to appear or that he intentionally embarked on a course of conduct designed to prevent him from receiving such notice. United States v. Cohen, 450 F.2d 1019, 1021 (5th Cir. 1971); State v. Hoskins, supra, 596-97.

Here, the proof of wilfulness depended on inferences reasonably drawn from the direct evidence presented by the state, particularly the testimony elicited from the interviewing probation officer, which indicated that the defendant received unambiguous notice of the June 29 court date. Furthermore, the defendant was aware of his conviction of five felonies and of the maximum punishment for each felony. In addition, the defendant was found, less than two weeks later, not in Connecticut, but in another state. From this evidence, the jury could reasonably infer that the defendant knew of his responsibility to appear in court on June 29, 1982, that he expected to receive a substantial sentence, and that he fled the state rather than face almost certain incarceration. See State v. Nemeth, 182 Conn. 403, 407-408, 438 A.2d 120 (1980). From the evidence, the jury could reasonably conclude that the defendant had received notice of the date of his court appearance, and that he had deliberately ignored that notice.

The court sentenced the defendant on the conviction for wilful failure to appear to a period of imprisonment not to exceed three years. Prior to the sentencing of the defendant, a co-defendant had received a two-and-one-half year sentence after pleading guilty to the same charge. The defendant claims that the fact he received a harsher sentence than his co-defendant for an identical offense, suggests that the sentencing court penalized him for having exercised his constitutional right to a jury trial. He does not, however, make any claim that his sentence exceeded the statutory limits or that the court relied on improper criteria in determining the sentence.

Sentencing is an individualized procedure in which the court has the grave responsibility to determine and impose, within applicable statutory limits, the appropriate punishment for a particular defendant. Williams v. New York, 337 U.S. 241, 246-49, 69 S. Ct. 1079, 93 L. Ed 1337 (1949). The sentencing of a defendant to a term of punishment within the statutory limits for the offense charged, and with the use of proper criteria, represents a proper exercise of a court’s discretion and is not reviewable on appeal. State v. Nardini, 187 Conn. 109, 119, 445 A.2d 304 (1982).

One co-defendant is not a criminal clone of the other. The receipt by one of a harsher sentence, after a trial and conviction, than the other, after a guilty plea, does not inexorably lead to a conclusion that there has been an unconstitutional punishment for the exercise of sixth amendment rights. State v. Sober, 166 Conn. 81, 93-95, 347 A.2d 61 (1974). It is usually impossible to compare one sentence with another for the same crime because, although the elements of an appropriate sentence remain constant, the difference between or among defendants is variable. Punishment must fit the criminal as well as the crime. The defendant has not carried his burden of persuasion that the difference between his sentence and the sentence of his co-defendant was the result of penalizing him for having exercised his right to a jury trial.

The defendant also claims that his right to equal protection of the laws was denied as a result of the sentence imposed. Equal protection of the laws is a constitutional shield provided by the fourteenth amendment to the United States constitution which prohibits unequal treatment by the law of those who are similarly situated. Henry v. White, 359 F. Sup. 969, 971 (D. Conn. 1973); New Haven Metal & Heating Supply Co. v. Danaher, 128 Conn. 213, 218-19, 21 A.2d 383 (1941). Co-defendants are not without variance, and need not, in terms of punishment, be treated similarly because they are rarely, if ever, exactly similar. There is no support in this record for a conclusion of unconstitutional disparate treatment.

The defendant further claims that the court erred in failing to instruct the jury that any judicially noticed fact was not a conclusive finding and did not bind the jury on any element of the crime charged. The state offered into evidence five criminal files, each pertaining to a specific criminal information for which the defendant was to be sentenced on the day he failed to appear. The defendant concedes that the trial court could take judicial notice of the files. The trial court, in its charge to the jury, commented: “I took Judicial Notice of the contents of the file and I tell you that this is a fact which you may find, that he was charged with the commission of five felonies when the State claims he was supposed to appear . . . (Emphasis added.)

The defendant neither submitted a request to charge on the issue nor excepted to the charge on that basis. Claims of error involving the trial court’s instructions to the jury not raised at trial need not be considered on appeal. Practice Book §§ 854 and 3063. Although the defendant makes no overt claim that the exception set forth in State v. Evans, 165 Conn. 61, 65-66, 327 A.2d 576 (1973), should be applied here, his claim is reviewable only if it falls within the narrow “Evans bypass rule,” and if he makes a showing specifically supported in the record that he has been deprived of a fundamental constitutional right. State v. Failla, 1 Conn. App. 524, 528, 473 A.2d 1233 (1984). This claim of error, under the circumstances, does not implicate the defendant’s constitutional right to a fair trial and we therefore decline to review this claim. See State v. Fullwood, 193 Conn. 238, 258-60, 476 A.2d 550 (1984); State v. Packard, 184 Conn. 258, 281-82, 439 A.2d 983 (1981).

The trial court’s charge was legally correct and presented the case to the jury in a just and fair manner. State v. Stepney, 191 Conn. 233, 247, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772, reh. denied, 466 U.S. 954, 104 S. Ct. 2163, 80 L. Ed. 2d 547 (1984). The trial court’s charge fully articulated each element of the crime charged, repeatedly stressed the state’s burden of proof on each element, and repeatedly emphasized the jury’s factfinding function. Furthermore, the isolated portion of the charge criticized by the defendant indicated that the jury was not bound by the trial court’s action in taking judicial notice of the files since the trial court used the word “may” rather than “shall.”

The defendant also claims that the trial court erred in admitting into evidence the specific crimes of which he had been found guilty at the time he failed to appear. Normally, evidence concerning other crimes of which the defendant has been charged or convicted, due to its prejudicial nature, is inadmissible. State v. Geyer, 194 Conn. 1, 5, 480 A.2d 489 (1984). Such evidence is admissible, however, if it is probative of motive, intent, identity, a system of criminal activity, or the credibility of the defendant’s testimony. Id., 6.

In this case, the evidence admitted concerning the felony charges was highly probative of two elements of the crime of failure to appear. The probative value outweighed any prejudice to the defendant. The state had to prove beyond a reasonable doubt that the defendant “while charged with the commission of a felony,” “wilfully” failed to appear. The five felony charges to which the defendant pleaded guilty were serious crimes involving a gun, drugs, and burglary for which he faced sentencing and probable incarceration when he failed to appear. Evidence of these underlying offenses was both relevant and material to two elements of the crime of failure to appear and was properly admitted by the trial court.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 53a-172 provides, in pertinent part: “(a) Any person who, while charged with the commission of a felony and while out on bail or released under procedure of law, wilfully fails to appear when legally called according to the terms of his bail bond or promise to appear, is guilty of failure to appear in the first degree.”

       The charges included larceny in the first degree, possession of a sawed-off shotgun, violation of the state’s dependency producing drug laws and two counts of conspiracy to commit larceny in the first degree.

       The defendant was sentenced to fifty-four to fifty-five months and was fined $5000.

       The court also took judicial notice of the appearance bonds, the guilty pleas, orders for presentence investigation reports, the original sentencing date, the bond forfeitures and the sentence ultimately imposed on each file.


author: Nigro, J.

text:
    Toby Messinger v. Andrew Laudano et al.
    (3373)

      Hull, Daly and Nigro, Js.
    Argued March 22—decision
    released May 28, 1985

      F. Woodward Lewis, Jr., for the appellants (defendants).

      Leonard H. Cheerman, for the appellee (plaintiff).
   Nigro, J.

This is an appeal by the defendants from a judgment granting immediate possession to the plaintiff landlord in a summary process action. The defendants claim that the trial court erred in determining that the notice to quit in this case was effective to establish jurisdiction. The defendants also allege that the notice, procedure and order of the court for “use and occupancy” payments were in error.

The defendants occupied an apartment on a month-to-month tenancy. On March 30, 1984, the plaintiff caused a notice to quit for nonpayment of the March rent to be served upon them. The notice directed the tenants to vacate the apartment on or before April 9,1984. When they failed to do so, this summary process action was begun.

The defendants contend that this notice was ineffective to afford the court jurisdiction because it was served less than eight days before the end of the month, and the quit date of April 9th did not prevent a new month-to-month tenancy from arising on the first day of April.

This is a strained reading of the summary process provisions of General Statutes §§ 47a-23 and 47a-23a. While it is true that a notice to quit based on nonpayment of rent in a month-to-month tenancy must be served in the month of nonpayment to be effective; Goldberg v. Rodriguez, 40 Conn. Sup. 4, 5, 478 A.2d 628 (1982); neither the statutes nor case law requires that the date of service of the notice and the time specified in the notice for the occupants to quit possession must be in the same month to establish jurisdiction for summary process.

A notice to quit may serve several functions: (1) as an unequivocal manifestation by the lessor that he terminates the rental agreement; Bushnell Plaza Development Corporation v. Fazzano, 38 Conn. Sup. 683, 686, 460 A.2d 1311 (1983); (2) as an indication that any holding over by the tenant after the expiration of the monthly tenancy will not be acquiesced in by the lessor; Welk v. Bidwell, 136 Conn. 603, 607-608, 73 A.2d 295 (1950); and (3) as compliance with the statutory requirement that a period of eight days pass between the termination of the agreement and the bringing of a summary process action. General Statutes § 47a-23a; Hour Publishing Co. v. Gorez, 5 Conn. Cir. Ct. 419, 421, 254 A.2d 919 (1968). The phrase “at least eight days before the termination of the rental agreement” is designed to prohibit a quitting date and consequent summary process action prior to the expiration of a lease term. General Statutes § 47a-23 (a); see also Hour Publishing Co. v. Gorez, supra. The present notice to quit served as a proper basis for jurisdiction. See Vogel v. Bacus, 133 Conn. 95, 98, 48 A.2d 237 (1946); O’Keefe v. Atlantic Refining Co., 132 Conn. 613, 622, 46 A.2d 343 (1946); Webb v. Ambler, 125 Conn. 543, 552-53, 7 A.2d 228 (1939).

On April 27,1984, the plaintiff filed a motion for use and occupancy payments to be paid into court. At a hearing on May 4, 1984, the court found the amount of $400 per month to be the fair rental value and later notified the parties that deposit should be made on or before May 11. On that date, the defendants deposited into court the amount of $93.34, rather than the $400 ordered. On May 21, the clerk ordered the defendants to file their answer on May 25, which was done. Because the motion for payment into court was not printed on a short calendar, the defendants claim they were deprived of constitutionally sufficient notice. The defendants further claim that they should not have been directed to file their answer because the amount they deposited with the court on May 11, according to their determination, was all of the $400 that had “accrued” from the date of the order.

General Statutes § 47a-26b gives notice to the parties that a hearing on the motion for use and occupancy payments must be held not less than three nor more than seven days after the motion is filed. In this case, the hearing was held on the last day authorized by the statute, the defendants were heard and no claim has been made that the amount ordered was unreasonable. When the defendants elected to comply with the court order as they chose to interpret it, rather than with its clear mandate, the clerk had no alternative but to direct the filing of an answer. Since pleadings in summary process cases are to advance every three days, the defendants have suffered no harm in being required to file an answer almost one month after their appearance in this action.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 47a-23 (a) provides in pertinent part: “When . . . the owner or lessor . . . desires to obtain possession or occupancy . . . at the termination of the rental agreement or lease, if any, or at any subsequent time, he . . . shall give notice to the lessee or occupant to quit possession... at least eight days before the termination of the rental agreement or lease, if any, or before the time specified in the notice for the lessee or occupant to quit possession or occupancy.”
      General Statutes § 47a-23a (a) provides, in pertinent part: “If, at the expiration of the eight days the lessee or occupant neglects or refuses to quit possession or occupancy . . . any commissioner of the superior court may issue a writ, summons and complaint [for summary process].”


author: Borden, J.

text:
    Carmela D. Calorossi v. Joseph D. Calorossi
    (2992)
    Dupont, C.P.J., Borden and Spallone, Js.
    Argued April 11—decision
    released May 28, 1985

      Zoltán A. Benyus, Jr., with whom, on the brief, was John L. Ponzini, for the appellant (plaintiff).

      Michael T. Bologna, for the appellee (defendant).
   Borden, J.

This is a marital dissolution case in which the trial court modified the judgment by terminating the plaintiffs alimony pursuant to General Statutes § 46b-86 (b). The plaintiff appealed. We find no error.

The judgment of dissolution, rendered on September 18, 1980, awarded the plaintiff alimony in the amount of $60 per week and child support in the amount of $80 per week. On February 1,1982, the parties were before the court on the fourth of a series of motions to modify the judgment on the basis of the defendant’s unemployment. The parties orally stipulated in court that alimony be modified to $45 per week, with a further adjustment while the defendant was unemployed, that the “order of the Court [entered on the stipulation] may not be modified on the application of either party on the basis of any increases in salary, overtime or additional employment by either party,” and that they “will reduce this to a stipulation and file it with the Court.” The court, Novack, J., responded: “An order may be entered in accordance with the stipulation.” The written order of the court was, inter alia, “that the . . . agreement between the parties become the order of this court as read into the record this first day of February, 1982.”

On February 24, 1982, the parties filed a written stipulation, dated February 1,1982, which restated the essentials of the oral stipulation made in court on February 1, 1982, but which provided with respect to nonmodification: “The parties hereto consent and agree that no further motion for modification of the support and alimony orders entered in accordance herewith shall be submitted to the court predicated upon an increase in the income of either party due to any reason, including increased salary, overtime benefits, part time work benefits, additional work or second job sources.” Despite the fact that this written stipulation was somewhat broader than the oral stipulation made on February 1, 1982, and the court order entered thereon, the plaintiff did not seek to have the order modified further to conform to the written stipulation. Indeed, there is nothing in this record to indicate that, until these proceedings, the written stipulation was brought to the attention of the court.

By motion dated November 14,1983, the defendant sought to terminate alimony pursuant to General Statutes § 46b-86 (b). The court, Ford, J., found that the requirements of the statute had been met and terminated the alimony. The plaintiff does not challenge the factual basis of the court’s decision, which did not involve any additional salary, overtime or employment of either party.

The sole basis of the plaintiff’s appeal is that modification was precluded by virtue of the written stipulation, dated February 1,1982, but not filed in court until February 24,1982, which she mischaracterizes as having been incorporated into the order of the court. Her argument focuses on the language of the stipulation precluding modification “predicated upon an increase in the income of either party due to any reason . . . .” This argument is without merit.

It is axiomatic that in a marital dissolution case a stipulation of the parties is not binding as an order of the court until it has been examined and approved by the court. Sands v. Sands, 188 Conn. 98, 102-103, 448 A.2d 822 (1982), cert. denied, 459 U.S. 1148, 103 S. Ct. 792, 74 L. Ed. 2d 997 (1983). Provisions for non-modification are not favored and must be clear and unambiguous. Bronson v. Bronson, 1 Conn. App. 337, 339, 471 A.2d 977 (1984).

The order of the court was based on and incorporated the oral stipulation; it was not based on and did not incorporate the written stipulation filed approximately three weeks later. The order of the court precluded modification only to the extent that it would be based on the increased salary, overtime or additional employment of either party. The trial court did not modify the judgment on any of these bases.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 46b-86 (b) provides: “In an action for divorce, dissolution of marriage, legal separation or annulment brought by a husband or wife, in which a final judgment has been entered providing for the payment of periodic alimony by one party to the other, the superior court may, in its discretion and upon notice and hearing, modify such judgment and suspend, reduce or terminate the payment of periodic alimony upon a showing that the party receiving the periodic alimony is living with another person under circumstances which the court finds should result in the modification, suspension, reduction or termination of alimony because the living arrangements cause such a change of circumstances as to alter the financial needs of that party.”

       The written order of the court, signed by the clerk on Judge Novack’s behalf, did not contain the nonmodification language. Neither party disputes, however, that they agreed on, and that the court approved, the provision regarding nonmodification.


author: Daly, J.

text:
    Theresa Carruthers v. Rocco Vumbacco et al.
    (3153)
    Hull, Spallone and Daly, Js.
    Argued April 2—decision
    released May 28, 1985

      Pasquale Young, for the appellant (plaintiff).

      Richard R. Brown, for the appellees (defendants).
   Daly, J.

The plaintiff is seeking a writ of mandamus to reinstate her to the position of permanent planning aid to the defendant Wallingford planning and zoning commission (commission) from which position she was discharged by the defendant mayor of Wallingford, Rocco Vumbacco (mayor). Her appeal to the defendant Wallingford personnel and pension appeals board (board) was unsuccessful. The plaintiff then instituted this action for mandamus. From the trial court’s judgment in favor of the defendants, the plaintiff has taken this appeal.

The trial court found the following factual situation: The plaintiff was hired as a part-time clerk-typist for the commission in 1968. In 1971, she was promoted to a full-time position as a clerk-typist. In 1972, she was promoted to secretary of the commission and became a permanent and classified employee of the town of Wallingford. In 1981, she was appointed as a temporary planning aid for the commission and, on September 4, 1981, was classified as a permanent aid.

On June 15,1983, the plaintiff received a letter from the mayor advising her that she was dismissed from that position, effective June 16,1983, pursuant to Rule XII of the Personnel Rules and Regulations. The plaintiff appealed to the board, which sustained the action of the mayor.

The plaintiff claims to have exhausted her administrative remedies, and initiated this action seeking her reinstatement. She claims that the mayor’s authority under chapter V, § 3 of the Wallingford charter does not extend to employees of the commission and that the commission is her appointing authority under Rule II of the Personnel Rules and Regulations. The trial court held that the charter did not place commissions in the same category of exceptions to the appointing authority of the mayor as boards. Hence, the mayor as the plaintiff’s appointing authority had the right to dismiss her.

The sole issue before us is whether the mayor is the plaintiff’s appointing authority. This hinges on whether a “commission” is synonymous with “board” under the Wallingford charter.

It is well settled that a city’s charter is the fountainhead of municipal powers. The charter, serving as an enabling act, both creates power and prescribes the form in which it must be exercised. Thus, it follows that agents of a city, including its commissions, have no source of authority beyond the charter. The express language in which authority is given or by implication necessary to enable them to perform some duty cast upon them by express language is what limits and measures their authority. Perretta v. New Britain, 185 Conn. 88, 92-93, 440 A.2d 823 (1981). The intent of a statute is to be determined from its language where the language is plain and unambiguous. The enactment, in such a case, speaks for itself and there is no occasion to construe it. State v. Springer, 149 Conn. 244, 248, 178 A.2d 525 (1962). The commonly approved meaning is to be given to the words used in expressing the legislative intent. General Statutes § 1-1. State v. Springer, supra. “Every word in a legislative enactment is presumed to have meaning.” State v. Freedom of Information Commission, 184 Conn. 102, 107, 441 A.2d 53 (1981). “Regulations are presumed to be valid; Grubbs v. Butz, 514 F.2d 1323 (D.C. Cir. 1975); and, absent a showing that they are inconsistent with the statutes, they have the force and effect of statute.” DiFederico v. McNamara, 181 Conn. 54, 56, 434 A.2d 320 (1980).

It must be presumed that the town council had a purpose for every sentence, clause or phrase in its regulation. “A regulation ought to be so construed that, if it can be prevented, no clause, sentence or word shall be superfluous, void or insignificant.” J & M Realty Co. v. Norwalk, 156 Conn. 185, 192, 239 A.2d 534 (1968). That the Wallingford town charter recognizes a distinction between “commissions” and “boards” is manifested throughout the charter. Several instances follow. Chapter I, § 2 provides, in part: “If any contract has . . . with reference to the same upon any such commission, board, department or officer shall . . . .” (Emphasis added.) Chapter III, § 5 provides, in part: “The council shall have the power and duties which . . . were conferred by law upon boards, officers and commissions of said town . . . (Emphasis added.) Additionally, Rule II, § 1 of the Personnel Rules and Regulations provides, in part: “For purposes of these rules and actions . . . the Appointing Authority shall be the commission, board, department head or official authorized by statutes, charter or regulation to appoint employees of the Town of Wallingford.” (Emphasis added.)

Mandamus and mandatory injunction are both extraordinary remedies. Relief by way of mandatory injunction is granted in the sound discretion of the court and only under compelling circumstances. Monroe v. Middlebury Conservation Commission, 187 Conn. 476, 480, 447 A.2d 1 (1982). It is well settled in this jurisdiction “that a writ of mandamus may issue only when three conditions exist: (1) The law imposes a duty— the performance of which is mandatory and not discretionary—on the party against whom the writ is sought; (2) the party applying for the writ has a clear legal right to have the duty performed; (3) there is no other adequate remedy.” Chamber of Commerce of Greater Waterbury, Inc. v. Murphy, 179 Conn. 712, 717, 427 A.2d 866 (1980).

We agree with the trial court that the plaintiff has failed to sustain her burden of proof that she has a clear legal right to the remedy.

There is no error.

In this opinion the other judges concurred.

      A temporary order of mandamus was originally sought, but the parties have been treating it as a permanent order. As a temporary mandamus, it would not qualify as a final judgment. Doublewal Corporation v. Toffolon, 195 Conn. 384, 389, 488 A.2d 444 (1985). The parties have bifurcated the issues so that the only one involved in this appeal deals with the authority of the mayor to discharge the petitioner without being concerned with the merits of the discharge.

       Rule XII, § 2 of the Wallingford Personnel Rules and Regulations provides: “Permanent employees in the classified service may be dismissed from employment by an appointing authority when he shall determine such dismissal necessary to the best interests of the service or the effective performance of department responsibilities.”

       The exhaustion of administrative remedies issue has not been raised since the parties felt it is questionable whether an appeal lies from action of the board.

       Chapter V, § 3 of the Wallingford charter provides: “The mayor shall appoint all department heads and other officers and employees of the town, except as otherwise specifically provided by this charter and except employees in the offices of elected officers or boards and officers and boards appointed by the council.”

       Rule II of the Wallingford Personnel Rules and Regulations provides: “the Appointing Authority shall be the ccmmission, board, department head or official authorized by statute, charter or regulation, to appoint employees of the Town of Wallingford.” (Emphasis added.)


text:
    Grievance Committee for the New Haven Judicial District v. Victor P. Fasano
    (2820)
    Dupont, C.P.J., Borden and Daly, Js.
    Argued April 3—decision
    released May 28, 1985

      Victor P. Fasano, pro se, the appellant (defendant).

      William F. Gallagher, with whom, on the brief, were Joseph B. Morse and Robert P. Borquez, for the appellee (plaintiff).
   Per Curiam.

The defendant is a member of the bar authorized to practice law in the state of Connecticut. He appeals from the trial court’s judgment suspending him from practicing law for a three month period for violating Disciplinary Rule 9-102 of the Code of Professional Responsibility and reprimanding him for conduct indicating neglect and inattention to legal matters entrusted to him.

The presentment to the trial court of the defendant for misconduct by the plaintiff grievance committee was in two counts. The defendant claims that the trial court erred in considering and disciplining the defendant on the contents of the second count of the presentment because it referred both to previous complaints filed with, investigated and resolved by the grievance committee short of presentments to the Superior Court and, in some instances, to complaints which had been dismissed by the committee because of a lack of a finding of unprofessional or unethical conduct.

A complaint against an attorney which has previously been dismissed by a grievance committee may be disclosed and used in connection with presentments to the Superior Court of that attorney. In re Herman N. Horwitz, 21 Conn. Sup. 363, 154 A.2d 878 (1959).

The defendant also argues that the trial court exceeded its judicial discretion by suspending him from practicing law for three months. The facts show that his actions clearly violated Disciplinary Rule 9-102 of the Code of Professional Responsibility. The trial court’s action will not be set aside unless the defendant has in some substantial way been deprived of his rights. Grievance Committee of the Bar of New Haven County v. Sinn, 128 Conn. 419, 422, 23 A.2d 516 (1941); In re Durant, 80 Conn. 140, 150, 67 A. 497 (1907). A review of the record indicates that such is not the case here.

There is no error.

       Practice Book § 32, as amended June 15,1984, and effective October 1, 1984, specifically provides for such disclosure. It provides in pertinent part: “(d) If a complaint against an attorney has been dismissed, the existence of the complaint, including any presentment, need not be disclosed by such attorney. For purposes of disclosure, except as hereinafter provided, any complaint that has been dismissed shall be deemed never to have been filed. Such complaints may be disclosed and used in subsequent disciplinary proceedings, including presentments, involving that attorney.”

       Disciplinary Rule 9-102 of the Code of Professional Responsibility provides in pertinent part: “(A) All funds of clients paid to a lawyer or law firm, other than advances for costs and expenses, shall be deposited in one or more identifiable accounts maintained in the state in which the law office is situated at a financial institution authorized to do business in such state, and no funds belonging to the lawyer or law firm shall be deposited therein except as follows:
      “(1) Funds reasonably sufficient to pay bank charges may be deposited therein.
      “(2) Funds belonging in part to a client and in part presently or potentially to the lawyer or law firm must be deposited therein, but the portion belonging to the lawyer or law firm may be withdrawn when due unless the right of the lawyer or law firm to receive it is disputed by the client, in which event the disputed portion shall not be withdrawn until the dispute is finally resolved.
      “(B) A lawyer shall:
      “(1) Promptly notify a client of the receipt of his funds, securities, or other properties.
      “(2) Identify and label securities and properties of a client promptly upon receipt and place them in a safe deposit box or other place of safekeeping as soon as practicable.
      “(3) Maintain complete records of all funds, securities, and other properties of a client coming into the possession of the lawyer and render appropriate accounts to his client regarding them.
      “(4) Promptly pay or deliver to the client as requested by a client the funds, securities, or other properties in the possession of the lawyer which the client is entitled to receive.”


author: Hull, J.

text:
    Regional School District Number 4 v. United Pacific Insurance Company
    (2809)
    Hull, Borden and Daly, Js.
    Argued March 7
    decision released May 28, 1985

      J. Paul Kane, with whom was Steven B. Kaplan, for the appellant (defendant).

      James D. Reardon, for the appellee (plaintiff).
   Hull, J.

The defendant, United Pacific Insurance Company, the surety on the bid bond attached to Ray Adler, Inc.’s bid on the construction of additions and alterations to the Valley Regional High School in Deep River, appeals from the trial court’s judgment for the plaintiff in an action on that bond. The plaintiff claimed that Ray Adler, Inc., the low bidder on the project, failed to enter into a contract at its bid price of $1,910,000, thereby causing the plaintiff a loss of $203,000, incurred when it was forced to accept the bid of the second lowest bidder. The defendant claimed, by way of a special defense, that Adler, its principal, made an error in computing the bid, as a result of which it was entitled to withdraw the bid without liability. The court found (1) that Adler was guilty of negligence in the preparation of its bid which barred it from claiming equitable relief, (2) that despite Adler’s attempted withdrawal of its bid, the plaintiff awarded the contract to it, thus binding Adler to perform the contract for the bid price and, upon Adler’s default, obligating the defendant on the bid bond, and (3) that the plaintiff was entitled to $191,000 in damages, being the amount of the bid bond provided by the defendant.

United raises three claims on appeal: (1) that the court erred in finding the defendant to be obligated on its bond in the absence of acceptance of Adler’s bid by the plaintiff; (2) that the court erred in requiring that Adler be free of negligence when claiming relief from any obligation under the terms of its erroneous bid; and (3) that the court erred in its computation of damages. Because we find error with respect to the second claim raised by United, we do not consider claims one and three.

On February 1,1980, Ray Adler, Inc., submitted the low bid on the plaintiffs project. That bid was accompanied by the defendant’s bond in the amount of $191,000, which constituted 10 percent of the amount of the bid. February 1 was the deadline for bids on the plaintiff’s project and, at some time after 3 p.m. on that day, the plaintiff opened all of the bids. On that same day, Adler discovered an error in its bid and sent a mail-gram to the plaintiff to that effect. That message was confirmed by telephone on February 4,1980, at which time a representative of Adler offered to accept the contract if a $110,000 correction were allowed. Even with such a correction, Adler’s bid would have been $93,000 lower than that of the next lowest bidder, Custom Concepts Builders of Connecticut. This offer was reiterated to the plaintiff at a meeting on February 20, 1980, but was rejected. Instead, the plaintiff awarded the contract to Custom Concepts and brought this action on Adler’s bid bond, seeking damages in the amount of $191,000.

At trial, the defendant argued, by way of a special defense, that a unilateral mistake had been made by Adler in transcribing the cost of certain custom made windows into the final computation of its bid. The plaintiff asserted, and the court found, that Adler’s error was the result of a “guesstimate” based on prior experience which did not take into account the fact that the windows were to be custom made. The trial court concluded “that [Adler] was negligent in the preparation of its bid,” and that the defendant had, therefore, failed to establish its special defense. Thus, the court rendered judgment for the plaintiff.

The defendant’s second claim of error, which we find dispositive, is directed to the trial court’s use of a standard of care which required that Adler be free of negligence in order for the defendant to prevail on its special defense of unilateral mistake. The defendant claims that the proper standard to be applied is that of gross negligence. While we disagree with the defendant’s characterization of the proper standard, we agree with the result which the defendant advocates.

This issue is the subject of an annotation entitled “Right to Rescind Bid on Public Contract,” found at 2 A.L.R. 4th 991. As a general proposition, the cases discussed in that annotation suggest that two lines of authority exist as to the criteria under which a bid may be rescinded. Both lines of authority tend to agree on three requirements: (1) the mistake must relate to a material aspect of the contract; (2) the mistake must be so great that enforcement of the bid would be unconscionable; and (3) no substantial prejudice should result to the party who has not made the mistake. Id., § 2 [a].

The fourth criterion, upon which the two schools of authority disagree, is either: (1) whether the mistake was made in the absence of negligence by the mistaken party; or (2) whether the mistake was made in the absence of gross negligence by the mistaken party. See id., §§ 3 [a], 5 [a]. Neither of these approaches has ever been adopted in Connecticut. We decline to follow either path, as each imposes an artificial impediment to the true guiding principle in these cases, which is the achievement of equity under all of the circumstances.

We adopt the rationale used by the court in Geremia v. Boyarsky, 107 Conn. 387,140 A. 749 (1928), in deciding a case involving an error in an estimate on a private carpentry and housepainting contract. There, the defendant was asked to stop the work which he was doing and to compute the total cost of the job in question. In so doing, the defendant made an error in addition which reduced the estimate from $2210.40 to $1450.40. The court held that “[i]t may be conceded that the error in addition made by the defendant . . . when he hastily totaled the items of his estimate at the request of the plaintiff, involved some degree of negligence. It would be inequitable under the circumstances to permit the plaintiff, who had good reason to know before the contract was signed that there must have been a substantial omission or error in the amount of the bid, to take advantage of such error while the contract was still executory and he had been in no way prejudiced, and to require the defendants to do the work for an amount much less than the actual cost. In similar situations when a price has been bid which, because of erroneous arithmetical processes or by the omission of items, was based on a mistake, rescission has been allowed where the contract was still executory and it would be inequitable to permit the other party to gain an unfair advantage from a mistake which has not prejudiced him in any way. Moffett, Hodgkins & Clarke Co. v. Rochester, 178 U.S. 373, 20 Sup. Ct. 957 [44 L. Ed. 1108 (1900)]; Bromagin v. Bloomington, 234 Ill. 114, 84 N.E. 700 [1908]; St. Nicholas Church v. Kropp, 135 Minn. 115, 160 N.W. 500, L.R.A. 1917D, 741 [1916]; Board of School Comrs. v. Bender, 36 Ind. App. 164, 72 N.E. 154 [1905]; Barlow v. Jones (N.J. Eq.) 87 Atl. 649 [1913]; Everson v. International Granite Co., 65 Vt. 658 [1893].

“The mistake of the defendants was of so fundamental a character that the minds of the parties did not meet; it was not, under the circumstances, the result of such culpable negligence as to bar the defendants of redress, and the plaintiff before the contract was signed had good reason to believe that a substantial error had been made and, while the contract was still executory and he had been in no way prejudiced, refused to permit the correction of the error and attempted to take an unconscionable advantage of it. The defendants were clearly entitled to a decree canceling the contract.” (Emphasis added.) Geremia v. Boyarsky, supra, 391-92. This approach refers to a number of factors common to the two lines of authority discussed earlier, yet it does not specifically apply either the negligence or gross negligence standard. Rather, it views the extent of the negligence only as a factor in determining the equities of the case.

In Moffett Co. v. Rochester, 82 F. 255 (C.C.N.D.N.Y. 1897), the federal Circuit Court, in discussing another arithmetical error regarding the cost of earth excavation stated: “The complainant is not endeavoring ‘to withdraw or cancel a bid or bond.’ The bill proceeds upon the theory that the bid upon which the defendants acted was not the complainant's bid; that the complainant was no more responsible for it than if it had been the result of agraphia or the mistake of a copyist or printer. In other words, that the proposal read at the meeting of the board was one which the complainant never intended to make and that the minds of the parties never met upon a contract based thereon. If the defendants are correct in their contention there is absolutely no redress for a bidder for public work, no matter how aggravated or palpable his blunder. The moment his proposal is opened by the executive board he is held as in a grasp of steel. There is no remedy, no escape. If, through an error of his clerk, he has agreed to do work worth $1,000,000 for $10, he must be held to the strict letter of his contract while equity stands by with folded hands and sees him driven into bankruptcy. The defendants’ position admits of no compromise, no exception, no middle ground.” Id., 256. Upon appeal to the United States Supreme Court, the Court stated that “[tjhese remarks are so apposite and just it is difficult to add to them.” Moffett, Hodgkins & Clarke Co. v. Rochester, 178 U.S. 373, 386, 20 S. Ct. 957, 44 L.Ed. 1108 (1900).

The crux of these cases was discussed in Connecticut v. F.H. McGraw & Co., 41 F. Sup. 369 (D.Conn. 1941). There, the court was dealing with a bidding error caused by an engineer’s failure to read properly the specifications for construction of a pier. The specifications made it clear that a construction procedure would be necessary which was much more expensive than that proposed by the defendant. The court noted that “[t]he only other distinction offered is that in the Geremia and Rochester cases the error was arithmetical, whereas here it is based on an incorrect reading of specifications in the light of the state engineer’s requirements. The distinction seems artificial. In either event the bidder errs; in either event he is to a degree negligent. But in both, the offeree is aware of the error, and presses his advantage unfairly if he insists on the work at an inadequate price.

“Of course, it is obvious, as the State contends, that the system of public bidding, developed by experience and usual in public contracts, should not be broken down by lightly permitting bidders to withdraw because of change of mind. Such a course would be unfair to other straightforward bidders, as well as disruptive of public business. But it can hardly be a substantial impairment of such system to grant the relief—which would clearly be given as between private citizens—in a case where a bona fide mistake is proven and was known to the State before acceptance or any loss to it.” Id., 374.

In each of these cases, the courts focused on a variety of factors in determining the. equities of the particular case before them. The extent or culpability of the negligence merely constituted a factor for the court to consider.

In the present case, Adler’s error was material to the contract and was extremely serious. Conversely, rescission would not prejudice the plaintiff in any meaningful fashion: The lowest accurate bid was still open to the plaintiff and no action had yet been taken in reliance upon Adler’s inaccurate bid. See annot., 2 A.L.R. 4th 991, § 3 [a], citing Conduit & Foundation Corporation v. Atlantic City, 2 N. J. Super. 433, 64 A.2d 382 (1948).

Further, Adler promptly notified the plaintiff of the error before the parties entered into a contract and promptly offered to do the job if an amendment to its bid were allowed. See annot., 2 A.L.R. 4th §§ 2 [a], 3 [a], 5 [a]. Adler, upon discovering its mistake, could have done no more to remedy the error than it did. If we were to rule upon this case in any other way, we would be standing by with folded hands, precisely as the circuit court in Rochester refused to do.

Under the circumstances of this case, even assuming that Adler was negligent, since it thereafter promptly notified the plaintiff of the error and offered to accept the contract at what was still the lowest price bid, we will not allow the plaintiff to take advantage of the error before it has suffered any detriment caused by that error.

There is error, the judgment is set aside and the case is remanded with direction to render judgment for the defendant.

In this opinion the other judges concurred.

       We do note, however, that, with respect to United’s first claim, the court specifically found that the contract had been “awarded” to Adler. The defendant’s own brief uses the terms “acceptance” and “award” somewhat interchangeably. Thus, this claim is essentially a dispute over the court’s finding of fact. We will not retry the facts. Practice Book § 3060D. In any event, acceptance of the bid is not necessarily dispositive as authorities have allowed withdrawal of bids both prior to and after their acceptance. Annot., 2 A.L.R. 4th 991, §§ 3, 5; see also Geremia v. Boyarsky, 107 Conn. 387, 140 A. 749 (1928).

       In fact, by the terms of the plaintiffs project manual, all bids were to remain open for sixty days. Thus, the plaintiff was still able to accept any of the bids submitted to it.


text:
    Ralph Rotermund v. Administrator, Unemployment Compensation Act
    (3352)
    Hull, Boeden and Daly, Js.
    Argued April 12—decision
    released May 28, 1985

      John A. Keyes, for the appellant (plaintiff).

      Richard T. Sponzo, assistant attorney general, with whom, on the brief, were Joseph I. Lieberman, attorney general, and Robert E. Walsh, assistant attorney general, for the appellee (defendant).
   Daly, J.

This is an appeal from the decision of the Superior Court sustaining the actions of the appeals referee and the board of review of the employment security division of the department of labor. Those decisions determined that the plaintiff had been overpaid unemployment benefits amounting to $5096 because of his failure to disclose employment and earnings.

The record indicates that the plaintiff, during the period in question, accepted a position with J. C. Business Forms, Inc., in which he was to act as a salesman on a commission basis. The payment arrangement was that the employer would advance the plaintiff money weekly against future commissions. The plaintiff received advances of $576 a week in draw against future commissions. As of December 31, 1982, some $16,758.57 had been advanced over and above earned commissions. At the same time, the plaintiff collected biweekly unemployment benefits.

The plaintiff claims that he was not actually employed during the time in issue in that the advances received were loans and not income. The referee found that the evidence substantiated that during the period in question the plaintiff was fully employed as a commission salesman and, therefore, was not unemployed within the meaning of the Unemployment Compensation Act. The referee thus affirmed the administrator’s determination that the plaintiff had been overpaid unemployment benefits. The board of review found that the referee’s conclusion was legally consistent with its findings of fact and affirmed the referee’s decision.

In appeals of this nature, the Superior Court does not try the matter de novo. “It is not its function to adjudicate questions of fact.” Guevara v. Administrator, 172 Conn. 492, 495, 374 A.2d 1101 (1977). “It is bound by the findings of subordinate facts and the reasonable conclusions of facts made by the appeals referee, where, as is true here, the board of review adopted the findings and affirmed the decision of the referee. . . . The court’s function is to determine, on the record, whether the referee acted unreasonably, arbitrarily or illegally. Conclusions of law reached by the referee must stand if they resulted from a correct application of the law to the facts found and could reasonably and logically follow from such facts.” (Footnote and citations omitted.) Robinson v. Unemployment Security Board of Review, 181 Conn. 1, 4-5, 434 A.2d 293 (1980).

The trial court upheld the board of review’s decision that the plaintiff was fully employed as set forth in General Statutes § 31-222, and was thus not eligible for benefits as an unemployed individual under General Statutes § 31-235. We have reviewed the record in this matter and conclude that the trial court did not err.

There is no error.

In this opinion the other judges concurred.


text:
    Fred Brunoli and Sons, Inc. v. Town of Woodbury et al.
    (3307)
    Hull, Borden and Daly, Js.
    Argued April 10—decision
    released May 28, 1985

      Paul E. Potanka, for the appellant (plaintiff).

      JohnD. Yarbrough, Jr., with whom, on the brief, was John C. Bullock, for the appellee (named defendant).
   Per Curiam.

This is a municipal bid case in which the plaintiff, an unsuccessful bidder, seeks damages from the defendant town for wrongfully awarding the contract to the defendant M.A. Pomponio & Sons, Inc. (Pomponio). The trial court rendered summary judgment for the town. The plaintiff appealed. We find error in the form of the judgment only, because we conclude that the plaintiff has no standing and that, therefore, its complaint against the town should be dismissed.

The town reserved the right to reject any or all bids, and to accept the bid which, in its judgment, was in its best interests. The plaintiffs bid of $941,000 was the second lowest. Pomponio’s bid of $844,996 was the lowest. The day after the opening of the bids, Pomponio discovered that it had made a unilateral mistake by inadvertently omitting the cost of one item of $66,000 and notified the town. The selectmen of the town concluded that the claim of mistake was corroborated, and entered into negotiations with Pomponio. After consulting with its attorneys, the town awarded the contract to Pomponio for $900,000.

It is clear that the plaintiff has fallen far short of establishing “fraud, corruption or acts undermining the objective and integrity of the [competitive] bidding process . . . Ardmare Construction Co. v. Freedman, 191 Conn. 497, 504-505, 467 A.2d 674 (1983). Thus, it had no standing to challenge the award of the contract, and its complaint against the town must be dismissed. Id., 506.

There is error in the form of the judgment only, the judgment is set aside and the case is remanded with direction to dismiss the complaint against the defendant town of Woodbury.

       Insofar as the record reveals, the action against Pomponio is still pending.

       Since the judgment from which the plaintiff appealed was only for the town, and since the part of the plaintiffs complaint directed at Pomponio was not considered as part of this appeal, we express no opinion on its continued viability.

       This was a legitimate response to the lowest bidder’s unilateral good faith mistake. See Regional School District No. 4 v. United Pacific Ins. Co., 4 Conn. App. 175, 493 A.2d 895 (1985) (public contract bidder who discovers and gives prompt notice of mistake in bid may not be held to bid if it would be inequitable to do so).


text:
    Dominick Montano et al. v. Kin-Therm, Inc., et al.
    (2666)
    Dupont, C.P.J., Hull and Spallone, Js.
    Argued March 12
    decision released May 28, 1985

      Joseph F. Shelley, Jr., with whom, on the brief, were Joel J. Rottner and James G. Geanuracos, for the appellants (defendants).

      James J. Alaino, Jr., with whom, on the brief, was Edward Pontacoloni, for the appellees (plaintiffs).
   Hull, J.

The defendants appeal from a judgment for the plaintiffs in an action on a promissory note. We find error.

On December 22,1970, the plaintiffs, Dominick and Freida Montano, executed a promissory note in the amount of $35,000, secured by a mortgage on their real property, in favor of Hartford National Bank. This note was made at the request of their son, Donald Montano, who was an officer and shareholder in the defendant Kin-Therm, Inc. The president of Kin-Therm and Donald Montano both signed the note as guarantors. The $35,000 was then loaned by the plaintiffs to Kin-Therm pursuant to a separate note.

On March 5, 1971, Kin-Therm filed for bankruptcy, listing its note to the plaintiffs, and its guaranty of the plaintiffs debt to Hartford National Bank as unsecured debts. As a result of Kin-Therm’s bankruptcy, the plaintiffs received $5512.50 in discharge of their claim. Kin-Therm’s assets and stock were subsequently purchased by Applied Energy Company, Inc., which continued to employ Donald Montano as manager of its operations. Donald Montano thereafter made weekly cash payments to his parents which, the trial court found, “roughly corresponded to interest on the balance of the plaintiffs’ loss.”

The plaintiffs brought this action, in two counts, alleging that both defendants had agreed to hold them harmless on the Hartford National Bank note. The court held that there was insufficient evidence upon which to find that either defendant had made such an agreement with the plaintiffs. The court concluded, however, that the cash payments were made pursuant to an oral agreement between the plaintiffs and Kin-Therm, which agreement constituted a post-bankruptcy reaffirmation of debt. Thus, despite the fact that the defendants asserted that they were discharged of this debt by their bankruptcy, the court concluded that the plaintiffs should recover on the basis of the post-bankruptcy reaffirmation although the court expressly acknowledged that “the plaintiffs did not raise [this issue] in their pleadings.”

The defendants’ fundamental claim of error is that the trial court erred in finding a post-bankruptcy reaffirmation of Kin-Therm’s debt to the plaintiffs in the absence of pleadings raising that as an issue. The trial court acknowledged that “matters in avoidance of affirmative allegations in an answer generally have to be specially pleaded in the reply.” That court went on to state, however, that “such a defect may be treated as waived when it appears that the defendant was aware of this claim, as evidenced by the considerable amount of testimony presented by both parties on this issue. See Frager v. Pennsylvania General Ins. Co., 161 Conn. [472, 289 A.2d 896] (1971).” The trial court’s reliance on Frager, however, is misplaced. That case involved a special defense which was not properly raised in proceedings after a remand by the Supreme Court. See Frager v. Pennsylvania General Ins. Co., 155 Conn. 270, 231 A.2d 531 (1967). The court specifically noted that in the proceedings which had led to its earlier remand, the claim in question had been raised so that the plaintiff had notice of it. Frager v. Pennsylvania General Ins. Co., 161 Conn. 472, 478, 289 A.2d 896 (1971).

The present case, on the other hand, involved issues which required evidence of a post-bankruptcy reaffirmation of debt as well as of the claims raised by the pleadings. Waiver of an appropriate pleading cannot be found in the admission of evidence relevant to issues within the scope of the pleadings simply because that evidence also pertains to issues not before the court. “A failure to demur, or to object to the evidence offered to prove the facts found [but not averred], does not preclude the losing party from asserting and taking advantage of the error on appeal.” Stein v. Coleman, 73 Conn. 524, 529, 48 A. 206 (1901); State v. Porrot, 4 Conn. Cir. Ct. 400, 403, 233 A.2d 13 (1967). In fact, the defendants did object to the admission of evidence which was relevant to the reaffirmation issue, stating specifically that “if the purpose is to attempt to prove that there was some agreement where Kin-Therm reaffirmed the debt, I’m going to object to that on the basis that it is nowhere in the pleadings.” That objection was overruled and an exception was taken. Thus, the defendants did everything necessary to keep the proceedings from straying outside the bounds of the pleadings.

“The purpose of the complaint is to limit the issues to be decided at the trial of a case and is calculated to prevent surprise. Board of Education v. Commission on Human Rights & Opportunities, 177 Conn. 75, 77, 411 A.2d 40 (1979); Lundberg v. Kovacs, 172 Conn. 229, 232, 374 A.2d 201 (1977). It is fundamental in our law that the right of a plaintiff to recover is limited to the allegations in his complaint. Kawasaki Kisen Kaisha, Ltd. v. Indomar, Ltd., 173 Conn. 269, 272, 377 A.2d 316 (1977); Strimiska v. Yates, 158 Conn. 179, 185, 257 A.2d 814 (1969); Nash Engineering Co. v. Norwalk, 137 Conn. 235, 239, 75 A.2d 496 (1950). ‘A plaintiff may not allege one cause of action and recover upon another. Facts found but not averred cannot be made the basis for a recovery.’ Malone v. Steinberg, 138 Conn. 718, 721, 89 A.2d 213 (1952); Schaller v. Roadside Inn, Inc., 154 Conn. 61, 65, 221 A.2d 263 (1966).” Francis v. Hollauer, 1 Conn. App. 693, 694-95, 475 A.2d 326 (1984).

There is error, the judgment is set aside and the case is remanded with direction to render judgment for the defendants.

In this opinion the other judges concurred.

       Kin-Therm, Inc., is a wholly-owned subsidiary of Applied Energy Company, Inc., which is also a defendant herein.

       In the interim, the plaintiffs had repaid Hartford National Bank in full.

       Although the defendants’ brief sets out three claims of error, those claims are all predicated on the trial court’s decision as to the issue of reaffirmation. Our conclusion as to this issue is dispositive of the appeal.


text:
    Robert Farley v. T.R.W., Inc., et al.
    (2200)
    Hull, Spallone and Daly, Js.
    Argued April 2—decision released
    May 28—on the appellees’ motion to reargue granted, reversed August 27, 1985

      John T. Grillo, with whom was Albert R. Annunziata, for the appellant (plaintiff).

      Shaun M. Slocum, with whom, on the brief, was Edward N. Shay, for the appellees (defendants).
   Daly, J.

The plaintiff instituted this action in strict tort liability against the defendant T.R.W., Inc. (TRW), as seller, and the defendant True Temper Corporation (True Temper), as manufacturer of a cross peen hammer, for the loss of his eye while using the hammer. The defendants asserted a special defense of misuse of the hammer by the plaintiff for failure to heed a written warning concerning the recommended use of safety glasses. A general verdict was rendered by the jury in favor of the defendants.

The plaintiff has appealed from the judgment, after the trial court’s denial of his motion to set aside the verdict, claiming error in the jury instructions and in evidentiary rulings.

The jury could have found the following facts: On September 14, 1973, the plaintiff was employed as a mechanic by the Connecticut Truck and Trailer Service and, in the course of his employment, borrowed a cross peen hammer, manufactured by True Temper and sold by TRW, from a fellow employee. While he was hammering an object, a foreign object struck the plaintiff in his right eye, ultimately resulting in its loss.

The plaintiff claimed that the hammer was in a defective condition and unreasonably dangerous to the plaintiff in one or more of the following ways: (1) the face of the hammer was excessively hard; (2) it was excessively low in shock resistance; (3) it was excessively low in silicon; (4) it spalled, chipped or became dislodged during its intended use; (5) the face of the hammer and rim were defectively manufactured in that they were improperly tempered; and (6) there was no warning given concerning said unreasonably dangerous, defective conditions. The defendants, by way of special defense, alleged that the plaintiff, having been warned to wear safety goggles, failed to do so.

The plaintiff argues that the court erred in its charge to the jury because its instructions, with regard to the complaint’s six specifications of defective conditions of the hammer, required the plaintiff to prove each of those specifications.

The primary function of the charge to the jury is to assist them in applying the law correctly to the facts which they find to be established. Magnon v. Glickman, 185 Conn. 234, 244, 440 A.2d 909 (1981). “ ‘A charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding them to a correct verdict in the case.’ Amato v. Desenti, 117 Conn. 612, 617, 169 A. 611 (1933).” Matthews v. F.M.C. Corporation, 190 Conn. 700, 704, 462 A.2d 376 (1983). “The test is whether the charge as a whole fairly presented the case to the jury so that no injustice was done.” Magnon v. Glickman, supra, 245. The charge will ordinarily be sustained if it meets this test, although it may not be exhaustive, perfect or technically accurate. Castaldo v. D’Eramo, 140 Conn. 88, 94, 98 A.2d 664 (1953).

The court instructed the jury that the plaintiff must prove all his allegations, except those admitted by the defendant, by a fair preponderance of the evidence. There were six acts of defective conditions of the hammer that were alleged in the complaint. This instruction, taken literally, required the jury to have found each of these acts proven before a verdict could be rendered for the plaintiff. The instruction was erroneous. The Supreme Court has held that this kind of instruction would not be reversible error “ ‘where, from the charge as a whole, the jury must have understood the correct rule to be that proof of any one of the several acts alleged was sufficient ground for recovery.’ Pratt, Read & Co. v. New York, N. H. & H. R. Co., 102 Conn. 735, 130 Atl. 102 [1925].” Sacks v. Connecticut Co., 109 Conn. 221, 237, 146 A. 494 (1929).

We have searched the charge to find where this instruction was corrected, explained or amplified. The instruction concerning the warning specification was insufficient to dissipate the obfuscation. Repeated references to the defective condition of the hammer did not add any further enlightenment.

The plaintiff’s counsel specifically requested the trial court, at the conclusion of the charge to the jury, to elucidate by explaining that it was only necessary for the plaintiff to prove one or more of the specifications and not all of them. The trial court erred in not heeding the request.

A general verdict was returned, however. Because the parties did not request or present interrogatories in accordance with Practice Book § 312, the verdict signified that the jury found not only the issues of the complaint but also those of the special defense for the defendants. Matthews v. F.M.C. Corporation, supra, 706.

The plaintiff claims that the general verdict rule is inapplicable since the defendants’ pleadings actually contained only one defense—presence of a warning label.

The defendants’ denial of negligence and their allegation of contributory negligence—presence of a warning label and failure to wear safety goggles— constitutes two separate and distinct defenses, either one of which could support the jury’s general verdict. LaFleur v. Farmington River Power Co., 187 Conn. 339, 342, 445 A.2d 924 (1982); Meglio v. Comean, 137 Conn. 551, 553, 79 A.2d 187 (1951). “If ‘the court’s instructions are shown to be proper and adequate as to any one of the defenses raised, the general verdict will stand irrespective of any error in the charge as to the others.’ ” LaFleur v. Farmington River Power Co., supra, 343. In this case, the plaintiff has not taken issue with the court’s instructions on contributory negligence.

The general verdict rule will prevail unless it falls within the purview of Batick v. Seymour, 186 Conn. 632, 641, 443 A.2d 471 (1982), wherein the court stated: “The court has a duty to submit to the jury no issue upon which the evidence would not reasonably support a finding. . . . There is a special circumstance present in this rare case which induces us to exercise our discretionary power under Practice Book § 3063 to notice plain error not raised below. We cannot in all fairness invoke the general verdict rule and rely upon the presumed finding of the jury of the efficacy of the special defense when it is apparent that there is insufficient evidence as a matter of law to support this alternative basis for the verdict.”

Here, there was evidence submitted to the jury that the manufacturer had affixed to the hammer a label which warned the user of possible chipping and included an admonition to wear safety glasses. “Whether such evidence is sufficient is a question for the jury to decide. State v. Scielzo, 190 Conn. 191, 197, 460 A.2d 951 (1983).” Eagar v. Barron, 2 Conn. App. 468, 470, 480 A.2d 576 (1984). It is also within the province of the jury to determine credibility and the effect to be given the testimony. Gallo v. Gallo, 184 Conn. 36, 38, 440 A.2d 782 (1981). It may accept or reject the testimony of any witness; Zarembski v. Three Lakes Park, Inc., 177 Conn. 603, 608, 419 A.2d 339 (1979); and determine the weight to be given the evidence. Angelica v. Fernandes, 174 Conn. 534, 535, 391 A.2d 167 (1978). The factor that distinguished this case from Batick v. Seymour, supra, is the presence of evidence supporting the special defense which allows for the invocation of the general verdict rule.

There is no error.

In this opinion the other judges concurred.

       This portion of the trial court’s charge was as follows: “The fourth paragraph of that first count is the—and it is denied by the Defendant that TRW sold the hammer in á'defective condition or that it was unreasonably dangerous to the Plaintiff in one or more of the ways alleged by the Plaintiff. Now, this is denied, so therefore the burden of proof is on the Plaintiff to prove these allegations and, in effect, what the Plaintiff has alleged is that it was defective because the face of the hammer was excessively hard; secondly, that it was excessively low in shoek resistance; thirdly, that it was excessively low in silicon; fourthly, that it spalled, chipped or became dislodged during its intended use; fifthly, that the face of the hammer and the rim were defectively manufactured in that they were improperly tempered, and finally, that there was no warning given concerning said unreasonably dangerous defective condition.
      “So that in this Paragraph 4, the Plaintiff had set forth the various claims it is relying upon as to the defective nature of the hammer, and the Defendants, on the other hand, have denied this and again to go to the merits of these claims, and whether the Plaintiff has sustained the burden of proving those, you then go to the evidence that has been presented and review the various evidence from the different witnesses who have testified as to what they had to say and in what respect it bears on these claims; because in view of the fact that it is denied, the burden being on the Plaintiff to prove that and, therefore, you now go to the evidence and then try to reach your conclusions from the evidence as to the merits of those claims.

         The plaintiffs counsel’s exception to the charge in this regard was as follows: “Another aspect, your Honor, is this: while you did say we have to prove our allegations and we have about six of them, I think your Honor omitted the normal saying one or more of these allegations. We don’t have to prove each and every one of them. We have lack of tempering. Your Honor did cover lack of warning. There are about four or five other allegations that are in the alternative. We don’t have to prove each and every one of them.”


text:
    Brian M. O’Donnell v. Police Commission of the Town of Greenwich et al.
    (2792)
    Hull, Spallone and Daly, Js.
    Argued April 9—decision
    released May 28, 1985

      James W. Macauley, for the appellants (defendants).

      John Keogh, Jr., for the appellee (plaintiff).
   Daly, J.

This case came before the trial court, Dean, J., on remand from the Supreme Court in O’Donnell v. Police Commission, 174 Conn. 422, 389 A.2d 739 (1978) (O’Donnell I). The facts essential to this appeal were set forth therein and need not be repeated here.

The Supreme Court in O’Donnell /held that the trial court, Reynolds, J., itself, rather than the administrative body, had weighed the credibility of witnesses and determined issues of fact. It concluded: “There is error, the judgment is set aside and the case remanded for further proceedings in accordance with law.” O’Donnell v. Police Commission, supra, 427. Subsequently, the Supreme Court refused the plaintiffs motion for permission to reargue.

The trial court reinstated the original trial court’s conclusions except for the findings with respect to the credibility of witnesses. From this judgment, the defendant has appealed.

The sole issue is whether the trial court complied with the terms of the remand.

When carrying out a mandate of the reviewing court, the trial court is limited to the specific direction of the mandate as interpreted in light of the opinion. “ ‘It is the duty of the trial court on remand to comply strictly with the mandate of the appellate court according to its true intent and meaning. No judgment other than that directed or permitted by the reviewing court may be rendered, even though it may be one that the appellate court might have directed. The trial court should examine the mandate and the opinion of the reviewing court and proceed in conformity with the views expressed therein. ’ ” (Emphasis in original.) Wendland v. Ridgefield Construction Services, Inc., 190 Conn. 791, 795, 462 A.2d 1043 (1983). The effect of the finding of error on the first appeal and the remanding of the case to be proceeded with according to law was to destroy entirely the efficacy of the judgment appealed from and require a new trial of all the issues in the case. Id., 796-97; Osterlund v. State, 135 Conn. 498, 501, 66 A.2d 363 (1949); Joseph v. Donovan, 118 Conn. 80, 83, 171 A. 24 (1934); McIsaac v. Hale, 105 Conn. 249, 250-51, 135 A. 37 (1926); Maltbie, Conn. App. Proc. § 345.

We will assume arguendo that the colloquy between counsel and the trial court was tantamount to a new trial. The trial court found that the Supreme Court in O’Donnell I had reversed the case on only one ground, i.e., the trial court’s exceeding its authority concerning the credibility of witnesses. It felt that O’Donnell I did not consider whether the imposition by the chief of police of a fifteen day suspension was a final action so that no further punishment could be meted out. Nor did it consider the issue concerning the composition of the police trial board. Both of these issues, however, were set forth in the plaintiffs motion for permission to reargue to the Supreme Court, which motion had been denied.

The trial court determined that it was “without power to overrule another Superior Court judge and consequently the ruling of Judge Reynolds except as to his finding of lack of credible evidence to support the Board’s action stands.” The trial court also determined that the credibility issue was separable from the two issues raised herein, and that while the reversal of the judgment by the Supreme Court annulled it, it did not necessarily set aside the foundation upon which it rested. Such a position does not comport with the requirement of a remand that a new trial be held of all the issues in the case. The trial court further found that there was credible evidence to support the decision of the police trial board on the basis of the judicial admissions of counsel.

We point out that the court’s essential function in an administrative appeal is to review the administrative proceedings to determine whether the action appealed from was legal. That review is normally limited to the record and the court cannot hear evidence. Neri v. Powers, 3 Conn. App. 531, 537, 490 A.2d 528 (1985).

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

In this opinion the other judges concurred.

       The plaintiff’s motion to reargue was denied on April 11, 1978.

       The rescript in Wendland is virtually identical with O’Donnell I except for “according to law” instead of “in accordance with law.”

       The trial court stated: “I am not going to hold a hearing and make rulings on the law when Judge Reynolds has already decided those issues on the law.”


text:
    Anthony Conte v. Donald Bertola
    (3174)
    Dupont, C.P.J., Hull and Landau, Js.
    Argued May 10—decision
    released June 4, 1985

      William J. Varese, with whom, on the brief, was James N. Olayos, for the appellant (plaintiff).

      Daniel D. McDonald, with whom, on the brief, was Michael T. Dolan, for the appellee (defendant).
   Per Curiam.

There is no error.


text:
    Miriam R. Weiss et al. v. Town of Newtown
    (3044)
    Hull, Borden and Daly, Js.
    Argued April 10—decision
    released June 4, 1985

      Joel Z. Green, with whom, on the brief, was Daniel Green, for the appellants (plaintiffs).

      Hugh J. Lavery, for the appellee (defendant).
   Daly, J.

The plaintiffs instituted this action to recover a farmland conveyance tax which they paid to the defendant’s town clerk. The conveyance tax went into effect on October 1,1972, after No. 152 of the 1972 Public Acts was enacted on May 18, 1972. This act is now codified as General Statutes § 12-504a, and it provides, essentially, for a conveyance tax on any land classified as farm, forest or open space land which is sold within ten years of classification or acquisition. East Village Associates, Inc. v. Monroe, 173 Conn. 328, 330, 378 A.2d 1092 (1977). From a judgment rendered in favor of the defendant by the trial court, the plaintiffs have appealed.

A summary of the stipulation of facts indicates that the plaintiffs were owners, during the relevant time period, of two parcels of land located in the defendant town. Prior to June, 1973, these parcels were classified as farmland by the defendant’s tax assessor and taxed accordingly. Real property is assessed annually by the defendant on October 1. On October 26, 1972, the plaintiffs applied to the tax assessor to renew the farmland classification. On December 14,1972, the tax assessor filed, with the town clerk, a document against the plaintiff’s premises pursuant to General Statutes § 12-5041

On April 2, 1973, the plaintiffs entered into a contract to sell the land for $120,000. When the town clerk refused to record the deed of conveyance, the plaintiffs paid the sum of $3600 for the conveyance tax while reserving the right to challenge its validity. When the defendant would not rebate the conveyance tax, the plaintiffs initiated this action for its return.

The plaintiffs claim that since the document filed on the Newtown land records was not filed within sixty days of the assessment date and was not signed by the tax assessor, the defendant was not authorized to collect the farmland conveyance tax. The trial court held that the provisions involved were not mandatory but were merely directory. We agree.

“ Tor the reason that individuals or the public should not be made to suffer for the dereliction of public officers, provisions regulating the duties of public officers and specifying the time for their performance are in that regard generally directory.’ 2A Sutherland, Statutory Construction (4th Ed. Sands) § 57.19. Unless there is reason to believe that the legislature intended that the duty not be performed at all except within the time prescribed or that the time restriction should be considered a limitation upon the power of the tardy officer, failure to act within the time specified should not invalidate the action taken. Id. ‘It is of course difficult to lay down a general rule to determine in all cases when the provisions of a statute are merely directory and when mandatory or imperative, but, of all the rules mentioned, the test most satisfactory and conclusive is, whether the prescribed mode of action is of the essence of the thing to be accomplished, or in other words, whether it relates to matter material or immaterial—to matter of convenience or of substance.’ Gallup v. Smith, 59 Conn. 354, 358, 22 A. 334 (1890); see Engle v. Personnel Appeal Board, 175 Conn. 127, 130, 394 A.2d 731 (1978).” Tramontano v. Dilieto, 192 Conn. 426, 432, 472 A.2d 768 (1984).

In determining whether a provision is of the essence of the thing to be accomplished, significance is to be attached to the nature of the act, and the language and form in which the provision is couched. The statutory provision is mandatory where the thing required to be done is one of substance. Legislative provisions, however, are ordinarily held to be directory where they are designed to secure order, system and dispatch in proceedings, and where they are stated in affirmative terms, or are unaccompanied by negative words. State ex rel. Arcudi v. Iassogna, 165 Conn. 203, 205, 332 A.2d 90 (1973).

These principles have long been settled in Connecticut, and it is also the generally accepted rule of interpretation. Id. “ Tt has been aptly stated that “when there is no substantial reason why the thing by statute required to be done might not as well be done after the time prescribed as before; no presumption that, by allowing it to be so done, it may work an injury or wrong; nothing in the act itself, or in other acts relating to the same subject matter, indicating that the legislature did not intend that it should rather be done after the time prescribed than not done at all—the courts will deem the statute directory merely.” ’ See also 50 Am. Jur. 46, Statutes, § 23; 63 Am. Jur. 2d 790, Public Officers and Employees, § 274.” State ex rel. Arcudi v. Iassogna, supra, 206.

It has been held previously that acts of a public official performed at a time beyond the limit prescribed are nevertheless effective. State ex rel. Arcudi v. Iassogna, supra, 204 (appointment of unemployment commissioner after expiration of date prescribed by statute); Donohue v. Zoning Board of Appeals, 155 Conn. 550, 554, 235 A.2d 643 (1967) (decision rendered by zoning board of appeals after time limited by statute); Colt v. Eves, 12 Conn. 243, 254-55 (1837) (selection of names on jury list after date prescribed).

Our Supreme Court has “consistently shown ‘a disposition to look through the literal meaning of words and forms of procedure to the essential purposes to be served.’ Conners v. New Haven, 101 Conn. 191, 198, 125 A. 375 (1924). The use of the word ‘shall,’ though significant, does not invariably create a mandatory duty because statutes must be construed as a whole to ascertain the legislative intention.” Tramontano v. Dilieto, supra, 433-34.

It clearly appears that the trial court properly applied the settled law in rendering its decision and properly concluded that the provision of General Statutes (Rev. to 1972) § 12-504Í that “[t]he tax assessor shall file annually, not later than sixty days after the assessment date . . . ” is directory and not mandatory.

In construing a statute, “words and phrases shall be construed according to the commonly approved usage of the language; and technical words and phrases, and such as have acquired a peculiar and appropriate meaning in the law, shall be construed and understood accordingly.” General Statutes § 1-1 (a).

General Statutes (Rev. to 1972) § 12-504Í requires that a certificate be filed by the tax assessor, but does not specify whether the certificate must be signed. “Certificate” is defined as follows: “[A] signed, written or printed testimony to the truth of something.” Webster, Third New International Dictionary. “A document testifying to a fact, qualification or promise.” American Heritage Dictionary. “A written assurance, or official representation, that some act has or has not been done, or some event occurred, or some legal formality has been complied with.” Black’s Law Dictionary.

Thus, the dictionary definitions do not require that a “certificate” be signed. Of course, it would have been the better practice for the tax assessor to have signed the document. Here, however, the document was captioned as a Newtown town record, and it is not disputed that the assessor in fact prepared and filed it. We conclude, therefore, that the statutory requirements have been complied with.

There is no error.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1972) § 12-504Í provides in pertinent part: “The tax assessor shall file annually, not later than sixty days after the assessment date, with the town clerk a certificate for any land which has been classified as farm land . . . which certificate shall be recorded in the land records of such town.” This section became effective on June 19, 1972.

       General Statutes (Rev. to 1972) § 12-504b provides in pertinent part: “No deed or other instrument of conveyance which is subject to tax . . . shall be recorded by any town clerk unless the tax imposed . . . has been paid.”


text:
    Abele E. Grillo v. Zoning Board of Appeals of the City of West Haven et al.
    (3333)
    Dupont, C.P.J., Borden and Spallone, Js.
    Argued April 11
    decision released June 4, 1985

      Leon O. Gross, for the appellant (plaintiff).

      Ann P. Coonley, assistant corporation counsel, for the appellee (named defendant).
   Dupont, C.P.J.

This appeal arises from the trial court’s judgment dismissing the plaintiff’s appeal from the granting of a variance to Jessica DeFrank by the zoning board of appeals.

DeFrank applied for a variance from the zoning regulations of West Haven, which required a minimum lot frontage of fifty feet and a minimum area of 6000 square feet. The subject property had forty feet of frontage and an area of 5200 square feet. A hearing on the application was conducted on April 20,1983, and continued to a later date. Two members of the zoning board were not present at the first hearing, although they were present on the date to which the hearing was continued and voted in favor of the application for a variance, as did the other members of the zoning board who were present at the first hearing. The application for a variance was granted.

The plaintiff, an abutting landowner, appealed the zoning board’s decision to the trial court, pursuant to General Statutes § 8-8, claiming that the vote of the zoning board was invalid because two members who voted were not present at the first hearing and that there was no evidence presented to the zoning board from which it could find the necessary prerequisite of unusual hardship or exceptional difficulty resulting from the enforcement of the zoning regulations. The trial court dismissed the appeal. Upon our grant of certification, the plaintiff appealed to this court.

The plaintiff argues that the zoning board’s action was illegal because two of its members voted in favor of the application despite their absence at the earlier public hearing. For a variance to issue, General Statutes § 8-7 requires at least four members of the zoning board of appeals to concur in the granting of the application for a variance. On the date to which the hearing was continued, five members of the zoning board of appeals were present and, after the conclusion of the hearing, they voted unanimously to grant the application. The plaintiff asserts that two members of the zoning board of appeals were ineligible to vote and therefore the application for the variance lacked the necessary number of concurring votes.

In Watson v. Howard, 138 Conn. 464, 86 A.2d 67 (1952), on which the plaintiff relies, one zoning board member did not attend the public hearing, but nonetheless cast the decisive vote on the application. His vote was found to be unlawful because he did not consider and appraise all the evidence presented at the public hearing. Id., 466-67. That case is distinguishable on its facts from the present zoning appeal since there it was an undisputed fact that the zoning board member failed to examine the letters and petitions presented at the prior public hearing. Here, the record is silent as to whether the two zoning board members acquainted themselves sufficiently with the issues raised, the evidence adduced and the arguments pressed at the first public hearing in order to exercise an informed judgment at the second public hearing.

The burden of proving that the two board members did not sufficiently acquaint themselves with the prior proceeding and, therefore, were disqualified from voting lies with the plaintiff. Dana-Robin Corporation v. Common Council, 166 Conn. 207, 216-17, 348 A.2d 560 (1974); New Haven v. Public Utilities Commission, 165 Conn. 687, 724, 345 A.2d 563 (1974); Loh v. Town Plan & Zoning Commission, 161 Conn. 32, 40-43, 282 A.2d 894 (1971). The record before this court does not reveal that the plaintiff introduced any evidence at all disclosing that the two zoning board members failed to acquaint themselves with the prior proceeding. The trial court, therefore, did not err in failing to find the vote of the zoning board illegal.

The plaintiffs other argument is that the applicant for the variance failed to allege, much less prove, that the enforcement of the zoning regulations, concerning the minimum frontage and the minimum area required for a building lot, as to this property would result in an exceptional difficulty or an unusual hardship. “A local zoning board has the power to grant a variance under General Statutes § 8-6 (3) where two basic conditions are satisfied: ‘(1) the variance must be shown not to affect substantially the comprehensive zoning plan, and (2) adherence to the strict letter of the zoning ordinance must be shown to cause unusual hardship unnecessary to the carrying out of the general purpose of the zoning plan.’ Smith v. Zoning Board of Appeals, 174 Conn. 323, 326, 387 A.2d 542 (1978).” Whittaker v. Zoning Board of Appeals, 179 Conn. 650, 655, 427 A.2d 1346 (1980). (Footnote omitted.) The standard set forth in General Statutes § 8-6 (3) has been substantially incorporated into § 73-3.2 of the city of West Haven’s zoning regulations.

The defendant zoning board’s action must be reasonably supported by the evidence in the record. Smith v. Zoning Board of Appeals, supra, 325. The defendant zoning board asserts that the record reveals that the subject property was valueless if it could not be used as a building lot. The trial court found that the record before the board supported the conclusion that the subject property was valueless absent the granting of the variance. The zoning board is legally correct in stating that exceptional difficulty or undue hardship is established “where a board could reasonably find that the application of the regulation to the property greatly decreases or practically destroys its value for any of the uses to which it could reasonably be put and where the regulation, as applied, bears so little relationship to the purposes of zoning that, as to particular premises, the regulation has a confiscatory or arbitrary effect.” Dolan v. Zoning Board of Appeals, 156 Conn. 426, 431, 242 A.2d 713 (1968). The record is devoid of any evidence to establish that the subject property has little or no value because of the zoning regulations concerning minimum lot sizes. The two applications for variances submitted by DeFrank claim as a specific hardship the fact that all other lots on the street are undersized lots. The minutes of the public hearing indicate that no evidence concerning financial hardship was presented. In fact, no one spoke in favor of the variance. The trial court, therefore, erred in concluding that the second prong of the test for a granting of a variance, that enforcement of the zoning requirements concerning minimum frontage and the minimum area of a building lot to this property would result in an unusual hardship or an exceptional difficulty, had been met. See id.; Ward v. Zoning Board of Appeals, 153 Conn. 141, 215 A.2d 104 (1965).

There is error, the judgment is set aside and the case is remanded with direction to sustain the appeal.

In this opinion the other judges concurred.

       Jessica DeFrank was a party to the appeal to the Superior Court, but she did not appear and defend the appeal to this court.