text:
    State of Connecticut v. Jose Cintron
    (6762)
    Dupont, C. J., O’Connell and Lavery, Js.

      Argued December 6, 1989
    decision released March 13, 1990

      William R. Sehipul, assistant public defender, for the appellant (defendant).

      RichardF. Jacobson, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Gary Nicholson, assistant state’s attorney, for the appellee (state).
   O’Connell, J.

The defendant appeals from the judgment of conviction, after a jury trial, of robbery in the first degree in violation of General Statutes § 53a-134 (a) (3) and possession of narcotics with intent to sell in violation of General Statutes § 21a-277 (a). The defendant claims that the trial court erred (1) in making factual determinations that prevented the defendant from effectively attacking the credibility of the state’s key witness, and (2) in refusing to give the jury a missing witness instruction. We find no error.

The jury could reasonably have found the following facts. On the evening of April 17, 1987, Bridgeport police officers responded to a report of a robbery. Upon their arrival at the scene, the officers found the victim standing on the sidewalk. As the victim was being interviewed, the defendant drove by. The victim pointed out the defendant as the man who had robbed her, whereupon the officers pursued him in their marked patrol car.

The police followed the defendant as he continued down the street and made a left turn. The defendant made three more turns and drove a short distance further before he realized he was being followed. He then pulled over to the side of the road and stopped. The officers had noticed that while they were following the defendant, he leaned over to his right several times and disappeared from view. With their guns drawn, they approached the defendant’s car and ordered him not to move. One of the officers noticed that the passenger door was open and on the ground under the door were two pieces of jewelry and several packets, later found to contain narcotics. Similar packets were later found in the defendant’s vehicle.

The victim testified that the jewelry found by the officers had been taken from her by the defendant while she was in his apartment earlier that evening. She further testified that when she arrived at his apartment, she and the defendant became embroiled in an argument centering on her unwillingness to continue her relationship with the defendant because of his drug dealing. During the dispute, the defendant threatened the victim with an axe or machete, and when she tried to leave, he seized the jewelry that she was wearing.

The victim offered inconsistent testimony as to who, if anyone, witnessed the argument and the taking of the jewelry. She also testified that she had seen, in the defendant’s apartment, packets similar to those discovered by the police and that she had sold drugs for the defendant on several previous occasions.

The defendant offered a different version of the events. He claimed that he had given the jewelry to the victim for her birthday and demanded its return when he noticed that she was no longer wearing a watch he had given her. He feared that she was going to sell the jewelry in order to buy drugs, and he claimed that she voluntarily surrendered the jewelry when he asked for it. He denied ever threatening her with a machete or axe. In regard to the drugs found near his car, the defendant testified that the victim had borrowed his car that day, and he suspected that the drugs belonged to her.

I

The defendant first claims that certain comments by the trial court deprived him of his due process rights to a fair trial. See U.S. Const., amend. XIV; Conn. Const., art. I, § 8. These comments, the defendant asserts, amounted to factual determinations that improperly invaded the province of the jury and prevented the defendant from attacking the credibility of the state’s key witness, the victim.

It is elementary jurisprudence that a judge, especially in a criminal case, must strive to conduct a trial in as close to an “ ‘ “atmosphere of perfect impartiality” ’ ” as possible. Fair v. Warden, 211 Conn. 398, 413, 559 A.2d 1094, cert. denied, U.S. , 110 S. Ct. 512, 107 L. Ed. 2d (1989). A judge must be careful to avoid any indication of bias, particularly in front of the jury. State v. Delarosa, 16 Conn. App. 18, 27, 547 A.2d 47 (1988). The defendant offers three incidents as support for his claim that the trial judge improperly bolstered the victim’s credibility. The first took place, outside the presence of the jury, during a hearing on the defendant’s motion for dismissal, and the last two occurred during defense counsel’s closing argument.

Concerning the first incident, the defendant argues that the court improperly anticipated the defense argument that the defendant sought to recover the jewelry from the victim in order to prevent her from selling it to finance drug purchases. We have reviewed the transcript and find nothing improper in the court’s remarks. Defense counsel and the court were merely discussing the merits of the defendant’s motion outside the presence of the jury. We fail to see how this exchange, of which the jury had no knowledge,- could have compromised the defendant’s right to a fair trial.

The two incidents that occurred during the defendant’s closing argument merit closer attention. In the first, defense counsel was arguing to the jury that the drugs found in the defendant’s car belonged to the victim, whom he characterized as a “drug addict.” The second arose in the context of defense counsel’s discussion of an unrelated criminal charge pending against the victim. Defense counsel sought to raise the possibility that the victim was to receive consideration on the charge in exchange for her testimony.

The issue we must address is whether the court, by its comments, improperly invaded the jury’s function as the sole determiner of witness credibility. State v. Smith, 200 Conn. 544, 550, 512 A.2d 884 (1986). We are not convinced that the trial court’s comments improperly bolstered the victim’s credibility. Our review of the record reveals that the judge sought to do nothing more than correct what the state claimed to be defense counsel’s mischaracterizations of evidence presented during the trial. See State v. Echols, 170 Conn. 11, 14, 364 A.2d 225 (1975).

A determination of whether a judge has improperly bolstered the credibility of a witness necessarily turns on the facts of a given case. It is helpful, therefore, to contrast the situation here with this court’s decision in State v. Camerone, 8 Conn. App. 317, 513 A.2d 718 (1986). In Camerone, this court held that the trial court had improperly bolstered the credibility of a state’s witness when he confirmed to the jury that the witness, an alleged accomplice of the defendant, had not received any consideration on his own charges in exchange for his testimony. Id., 329. No such corroboration was given here. The trial court merely stated that the victim had denied making any deal and that there was no other evidence to indicate that a deal had been made. The court informed the jury that the victim was entitled to the presumption of innocence and instructed the jury that it should not speculate as to what might happen to her in the future in some unrelated case.

We recognize that there is a “fine line separating permissible and impermissible judicial conduct”; State v. Delarosa, supra, 29; and in this case, where the evidence essentially consisted of the word of the defendant versus the word of the victim, the line is very fine. That line, however, was not crossed here. The judge did not take a position of advocacy concerning the outcome of the case, nor did he convey to the jury any opinion regarding the defendant’s guilt or innocence. State v. Gordon, 197 Conn. 413, 425, 504 A.2d 1020 (1985). We are not convinced that defense counsel was hampered in his ability to defend his client. Id.

We conclude that the trial court’s comments did not compromise the defendant’s constitutional right to a fair trial.

II

The defendant’s second claim is that the court erred in failing to give the defendant’s requested missing witness instruction. “The failure to produce a witness for trial who is available and whom a party would naturally be expected to call warrants an adverse inference instruction against the party who would be expected to call that witness.” State v. Santangelo, 205 Conn. 578, 596, 534 A.2d 1175 (1987); Secondino v. New Haven Gas Co., 147 Conn. 672, 674-75, 165 A.2d 598 (1960).

The defendant claims that the state’s failure to call the victim’s brother to testify merited a missing witness charge. The defendant, as the.party seeking the benefit of the missing witness instruction, has the burden of showing that the witness was both available and one whom the state would naturally produce. State v. Hart, 198 Conn. 424, 428, 503 A.2d 588 (1986). In this case, we are satisfied that the defendant has met his burden of showing that the brother was available to testify.

We focus our inquiry, therefore, on whether the brother was a witness whom the state would naturally produce. Such a witness “is one who is known to that party and who, by reason of his relationship to that party or to the issues, or both, could reasonably be expected to have peculiar or superior information material to the case which, if favorable, the party would produce.” Secondino v. New Haven Gas Co., supra; State v. Greene, 209 Conn. 458, 470, 551 A.2d 1231 (1988). The defendant contends that because the victim testified that her brother was present in the room when the defendant took the jewelry from her, the state should have been expected to call him to support the victim’s version of events. Because the brother was not called, the defendant asserts, it is reasonable to assume that his testimony would not have benefited the state.

We disagree with the defendant’s characterization of the victim’s brother as a natural witness for the state. He relies exclusively on the victim’s testimony that the brother was in the room, but we note that her testimony is inconsistent on this point. At one point she said he was present when she handed over the jewelry; at another she related that her brother had not yet entered the room when she surrendered her property to the defendant. Given the discrepancies in the victim’s testimony, we are not satisfied that the defendant has met his burden of showing that the brother was a witness to the robbery and, therefore, a natural witness for the state to call. See State v. Hart, supra. The trial court properly refused to give the requested charge.

There is no error.

In this opinion the other judges concurred.

       The defendant relies on both the federal and state constitutional guarantees of due process. He has not, however, undertaken a separate analysis of the state constitution as a basis for different treatment of his federal and state constitutional claims. We will not undertake such an analysis. State v. Blackwell, 20 Conn. App. 193, 199 n.4, 565 A.2d 549 (1989).

       The following exchange took place during the hearing on the defendant’s motion:
      “The Court: But you’re not claiming therefore, that he was merely recovering his own property.
      “[Defense Counsel]: Oh, yes.
      “The Court: Self assistance. Would not excuse—
      “[Defense Counsel]: Not self assistance. She voluntarily gave it back to him.
      “The Court: Because he wanted it back.
      “[Defense Counsel]: That’s right.
      “The Court: He was afraid that she was going to sell it in the pawn shop or somewhere else.
      “[Defense Counsel]: And use it for drugs.
      “The Court: Motion is denied.
      “[Defense Counsel]: Take an exception.”

       This claim grows out of the following:
      “[Defense Counsel]: There was a drug dealer in the neighborhood, but it was not Jose Cintron. It was [the victim]. She said that by her own testimony. Now she would have you believe that she sold drugs in the apartment of Mr. Cintron, suggesting perhaps that Mr. Cintron is a big time drug dealer. Nonsense. Obviously, if somebody were going to sell drugs out of his own apartment, he would have the ability to do it himself and cut out the middleman. Why sit there and watch somebody sell drugs? Mr. Cintron has testified, yes, she sold drugs, but she sold drugs on the street. That makes a lot more sense, doesn’t it? Selling drugs on the street. But she wasn’t selling the drugs for Mr. Cintron. Yes, she’s familiar with the envelopes such [as] you see in evidence here because she has had those envelopes—envelopes like them in the past because she’s a drug addict.
      “[Assistant State’s Attorney]: I’m going to have to object at this point, Your Honor. There’s absolutely no evidence that she’s a drug user. A drug addict.
      “The Court: There’s no evidence of that.
      “[Defense Counsel]: There was testimony of her use of drugs in the bathroom on William Street.
      ' “The Court: He said he found some blood spots and another person was in the room with her and the door wouldn’t open and when it did, he didn’t—
      “[Defense Counsel]: He testified that she used drugs.
      “The Court: I’m not here to argue the point. The jury would be grossly in error to conclude from your statement that the [victim] was a drug addict. There’s no evidence of that.
      “[Defense Counsel]: I’ll take an exception.
      “The Court: You have it.
      “[Defense Counsel]: I think it’s up to the jury to decide exactly what was said, Your Honor.
      “The Court: Well, fine. What’s said. But your characterization of it—the objection to it is sustained and the jury is directed to disregard it.
      “[Defense Counsel]: I’ll take a strong exception with that, Your Honor.”

       The statements in question occurred in this colloquy:
      “[Defense Counsel]: Jose Cintron is before you and one can only imagine how long it will be before the trial for [the victim] takes place. We know she’s facing one charge. Will she face others? Will the fact that she—

        “[Assistant State’s Attorney]: I’m going to object at this point, Your Honor. That has nothing to do with this case as to Mr. Cintron’s guilt at all. It’s completely irrelevant to these proceedings. It has nothing to do with it.
      “[Defense Counsel]: The issue of whether she gets consideration is an issue, Your Honor.
      “The Court: You’re referring to the fact that she’s under arrest now and has a pending charge?
      “[Defense Counsel]: Yes, Your Honor.
      “The Court: To consider what may happen in that case is pure speculation.
      “[Defense Counsel]: And whether she anticipates any consideration—
      “The Court: The presumption of innocence—
      “[Defense Counsel]:—is worthy of the jury’s consideration.
      “The Court: Well, there’s no evidence that there is. She says no.
      “[Defense Counsel]: The jury is entitled to draw—
      “The Court: The jury may not—
      “[Defense Counsel]:—any conclusion that it wishes.
      “The Court:—draw a conclusion unless there’s evidence before it. There is no evidence of her expecting any consideration whatever. Because she denies it, does not mean the converse is true.
      “[Defense Counsel]: I’ll take an exception, Your Honor.
      “The Court: Right, [to the jury] You will disregard speculation as to what may happen to that young lady in any court. The presumption of innocence applies to her as well and the arrest of her is not significant in regard to any culpability on her part. You may continue.
      “[Defense Counsel]: I’ll take an exception.
      “The Court: Yes.”

       “Omnia presumuntur contra spoliatorem. (All things are presumed against the suppressor of testimony.)” B. Holden & J. Daly, Connecticut Evidence (1988) § 65a.

       Although the defendant’s request to charge included two other possible witnesses, his brief is limited to the victim’s brother. Accordingly, we conclude that claims relating to the other witnesses have been abandoned. See Czarnecki v. Plastics Liquidating, Inc., 179 Conn. 261, 262 n.1, 425 A.2d 1289 (1979).


source: Caselaw Access Project

author: Dupont, C. J.

license: Public Domain

text:
    Joseph Romaniello v. Orlando Pensiero et al.
    (7797)
    Dupont, C. J., Daly and Lavery, Js.
    Argued October 17, 1989
    decision released March 20, 1990

      Mark F. Katz, for the appellants (defendants).

      Dennis G. Eveleigh, for the appellee (plaintiff).
   Dupont, C. J.

The defendants appeal from the judgment of the trial court granting specific performance to the plaintiff, pursuant to the recommendation contained in the report of an attorney trial referee.

The referee found certain facts. The plaintiff and the defendants executed a six year lease agreement on property owned by the defendants, commencing on April 15, 1983, and ending on March 15, 1989. The agreement provided that upon written notice, the plaintiff could exercise an option to purchase the property for its fair market value at any time during the term of the lease. It also provided that, in the event of a disagreement as to the fair market value at the time of the exercise of the option, the parties could submit that issue to arbitration. Pursuant to the terms of the agreement, the plaintiff exercised his option to buy the premises, but the parties could not agree on the purchase price. On October 26,1987, arbitrators established that the fair market value of the property as of that date was $475,000. That valuation was not disputed but a disagreement arose over the preparation of a contract and the time and place of the closing.

The referee concluded, on the basis of a series of letters exchanged by the parties’ attorneys, that the defendants had breached the agreement by refusing to prepare a new sales contract and by notifying the plaintiff that they considered the option terminated. The referee also found that the plaintiff had sufficiently proven his ability to purchase the property for $475,000 by producing a mortgage commitment and other evidence of his financial condition. Despite this latter finding, the referee further concluded that the defendants’ breach excused the plaintiff from proving his financial ability to purchase the property.

The issue on appeal is whether the trial court should have accepted the attorney trial referee’s recommendation. The defendants argue that the court erred in accepting the referee’s recommendation because the referee improperly excused the plaintiff from proving his ability to purchase the property. They also argue that, because the plaintiff needed a mortgage to purchase the property, and because he did not obtain a mortgage commitment until June 3, 1988, he was not ready, willing and able to purchase until that date. They further claim that the mortgage commitment obtained by the plaintiff was not binding because it contained many contingencies that the plaintiff had not proven were fulfilled. The defendants argue, therefore, that the plaintiff was not ready, willing and able to purchase the premises and that the attorney trial referee should not have recommended specific performance.

If the referee were correct in excusing the plaintiff from proving his ability to purchase the property, then the plaintiff’s actual ability to purchase would be irrelevant. The first question to be resolved, therefore, is whether, in every instance where a seller has breached a contract of sale, the buyer must nevertheless prove that he was ready, willing and able to effectuate the sale before he can be entitled to the remedy of specific performance.

It is well settled that a buyer seeking specific performance has the burden of proving that he or she is ready, willing and able to purchase the premises, even when a seller refuses to participate in or attend a closing, or has failed to satisfy a condition of the contract. DiBella v. Widlitz, 207 Conn. 194, 200, 541 A.2d 91 (1988); Frumento v. Mezzanotte, 192 Conn. 606, 616, 473 A.2d 1193 (1984). The defendants are correct, therefore, in their assertion that their breach did not excuse the plaintiff from proving that he was ready, willing and able to purchase the realty.

The defendants next claim, contrary to the referee’s findings, that the plaintiff failed to prove that he was ready, willing and able to perform the contract at any time prior to June, 1988. That determination is a question of fact. Parkway Trailer Sales, Inc. v. Wooldridge Bros., Inc., 148 Conn. 21, 26, 166 A.2d 710 (1960). Similarly, the determination of a closing date in a case where that date is disputed is also a question of fact. DiBella v. Widlitz, supra, 198. We will not reverse or modify a trial court’s acceptance of a referee’s finding of fact unless it is clearly erroneous in view of the evidence and the pleadings in the whole record. Id.; Frumento v. Mezzanotte, supra, 617-18.

In the present case, the parties never set a closing date because of the defendants’ refusal to prepare a contract. The referee’s findings implied that the earliest possible closing date was October 26,1987. The evidence supports that implication because, prior to that date, the parties had not agreed upon a purchase price. Without a price, the parties would have been unable to close and the plaintiff would never have been able to show that he was financially able to purchase the property.

The attorney trial referee also found that the plaintiff was financially able to purchase the premises for $475,000 as of the date of the trial, and that the plaintiffs financial condition on October 26,1987, remained unchanged as of the date of trial in June, 1988. This finding was based on evidence that included the plaintiffs bank and financial statements and a mortgage commitment dated June 3,1988. The defendants seem to be claiming that this evidence was insufficient as a matter of law, and that the plaintiff could have proven his ability to perform only by showing either that he had available cash or a binding mortgage commitment at all times after October 26, 1987.

Although a plaintiff seeking specific performance of a sales contract must prove that he was ready, willing and able to effectuate the sale, he need not make a formal tender of the purchase price in the event that the defendant breaches the contract. Robert Lawrence Associates, Inc. v. Del Vecchio, 178 Conn. 1, 18, 420 A.2d 1142 (1979); Vachon v. Tomascak, 155 Conn. 52, 57, 230 A.2d 5 (1967). The law does not require a party to proceed with preparations for performance if such preparations would be futile. Vachon v. Tomascak, supra. Here, the plaintiff was not required to attend a closing that was never scheduled or to seek a mortgage commitment before a sales contract had been prepared. Such acts, in light of the defendants’ refusal to perform, would indeed have been futile, since mortgage commitments are based on particular values at particular points in time and are not valid indefinitely. The plaintiff proved to the satisfaction of the referee that he could have obtained a mortgage commitment at any time between October 26, 1987, and June, 1988.

The defendants finally claim that the bank that extended the mortgage commitment to the plaintiff “was in no way bound to provide those funds because of the large number of contingencies set forth within the commitment,” and that, therefore, the referee erred in considering the commitment as evidence of the plaintiff’s ability to purchase. It is true that a proposed purchaser cannot be said to be able to purchase when he is dependent on third parties who are in no way bound to furnish the funds. Frumento v. Mezzanotte, supra, 617; Peter M. Chalik & Associates v. Hermes, 56 Wis. 2d 151, 161, 201 N.W.2d 514 (1972). This line of reasoning, however, has not been extended to cover situations in which a purchaser obtains a mortgage commitment from a bank. In Frumento, the plaintiff had no such commitment, but merely testified that he knew he could borrow the necessary money from his father. Frumento v. Mezzanotte, supra, 615. Here, the plaintiff produced a valid mortgage commitment. The fact that the commitment contained several customary contingencies does not affect its validity. None of the contingencies is related to the plaintiff’s financial condition and several, such as the requirement that the borrower pay all closing costs, could not be fulfilled until the actual closing.

Specific performance is a broad equitable remedy that is discretionary with a trial court and its granting is not subject to reversal upon appellate review unless the trial court acted in a clearly erroneous manner. Smith v. Hevro Realty Corporation, 199 Conn. 330, 345, 507 A.2d 980 (1986); Frumento v. Mezzanotte, supra, 615, 617. Since the referee was correct in finding that the plaintiff proved that he was ready, willing and able to purchase the property, the trial court was also correct in rendering a judgment of specific performance based on the referee’s factual finding. See Dills v. Enfield, 210 Conn. 705, 713, 557 A.2d 517 (1989); Wilcox Trucking, Inc. v. Mansour Builders, Inc., 20 Conn. App. 420, 423-24, 567 A.2d 1250 (1989).

There is no error.

In this opinion the other judges concurred.

       The referee found that in June, 1986, after receiving notice of the plaintiff’s intent to exercise his option, the defendants had sent the plaintiff, pursuant to the original agreement, a customary real estate contract that recited a purchase price of $500,000. After the dispute in price had been resolved by arbitration, the plaintiff requested and the defendants refused to prepare a new sales contract with the agreed upon price. The option agreement provided that a closing would take place thirty days after the execution of the sales contract.


text:
    Mary Ellen Guinan v. Direct Marketing Association, Inc., et al.
    (8518)
    Dupont, C. J., Daly, Norcott, Foti and Lavery, Js.
    Argued December 7, 1989
    decision released March 20, 1990

      Bruce L. Levin, with whom, on the brief, was Serge G. Mihaly, for the appellants (defendants).

      Robert P. Wenten, for the appellee (plaintiff).
   Dupont, C. J.

The parties were ordered to appear at a motion calendar of this court to give reasons why this appeal should not be dismissed for lack of a final judgment pursuant to the cases of Timothy v. Upjohn Co., 3 Conn. App. 162, 485 A.2d 1349 (1985), and Bush v. Quality Bakers of America, 2 Conn. App. 363, 479 A.2d 820, cert. denied, 194 Conn. 804, 482 A.2d 709 (1984).

The appeal arises from a claim for workers’ compensation benefits. The plaintiff sustained an injury to her lower back while setting up an exhibit for the named defendant. She mailed a notice of claim to the named defendant which failed to file a notice to contest with the workers’ compensation commission within the statutory twenty day time limit of General Statutes § 31-297 (b). The plaintiff subsequently filed a motion to preclude the defendants from contesting liability. The workers’ compensation commissioner granted the motion and the defendants appealed to the compensation review division, which affirmed the commissioner’s ruling. The defendants then filed an appeal to this court.

The parties assert that the decision of the compensation review division affirming the commissioner’s granting of the plaintiff’s motion to preclude is a final judgment. They contend that although damages have not yet been determined, the calculation of that dollar amount is a purely ministerial act, requiring the application of a simple mathematical formula. Consequently, they argue that the test enunciated in State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983), was met because the rights of the parties have been finally concluded so that further proceedings cannot affect them. It, therefore, follows, according to the parties, that there was a final judgment in this case. An analysis of Bush v. Quality Bakers of America, supra, and Timothy v. Upjohn Co., supra, however, leads us to conclude that there was no final judgment in this case.

In Bush, we concluded that there was a final judgment and, in Timothy, we concluded that there was not a final judgment. Those cases rest on similar principles of law but disparate facts. In Bush, the commissioner had rendered a decision precluding the defendants from contesting liability. The compensation review division sustained that decision, and the defendant employer and its insurer then appealed to this court. We reviewed the appeal on its merits because the rights of the parties in that case had been finally concluded so that further proceedings could not affect them. Liability had been established and all that was left to be done involved a purely mathematical calculation of the survivor’s benefits under General Statutes § 31-306. Bush v. Quality Bakers of America, supra.

Timothy also involved survivor’s benefits, but the case presented on appeal differed from that presented on appeal in Bush because, in Timothy, liability had not been established. This court dismissed the appeal in Timothy because the effect of the review division’s reversal of the commissioner’s decision was to leave the issue of liability yet to be determined. Since both liability and the amount of compensation, if any, remained undetermined, the review division’s decision was not a final judgment.

The facts of the present case are not the same as those of Bush or Timothy. This appeal does not involve survivor’s benefits as did both Bush and Timothy, but instead involves compensation for partial disability. Although liability has been established here, unlike Timothy, the amount of compensation, unlike Bush, is not yet capable of a precise mathematical determination. In Bush, the plaintiff’s status as a widow clearly entitled her to compensation under General Statutes § 31-306. That statute provides a simple and straightforward scheme for determining compensation, based on readily established facts such as the average weekly earnings of the deceased.

In contrast, the statute involved here, General Statutes § 31-308, provides for an elaborate scheme with a complex formula for determining compensation once the extent of the disability has been established. While General Statutes § 31-297 (b) states that the defendants are precluded from contesting the extent of the plaintiff’s disability, the determination of the extent of that disability and the total amount of compensation under § 31-308 necessarily involves the presentation of evidence by both parties and factfinding on the part of the commissioner. The commissioner must determine, among other facts, the amount the injured employee is capable of earning after the injury and the availability of suitable employment. Because the resulting findings will necessarily impact on the amount of compensation awarded, the rights of the parties are yet to be finally concluded. Thus, despite the fact that liability has already been determined in the present case, more remains to be done than the utilization of a pure mathematical calculation of compensation as was true in Bush.

This appeal is, therefore, similar to a case in which summary judgment has been granted, but damages are yet to be determined. See Stroiney v. Crescent Lake Tax District, 197 Conn. 82, 495 A.2d 1063 (1985). By analogy to Stroiney, and by applying the principles of Bush and Timothy, this appeal must be dismissed for lack of a final judgment.

The appeal is dismissed.

In this opinion the other judges concurred.

       The other defendant is the named defendant's workers' compensation carrier.


author: Norcott, J.

text:
    State Board of Education et al. v. City of Waterbury et al.
    (7324)
    Spallone, Daly and Norcott, Js.
    Argued January 2
    decision released March 20, 1990

      Kenneth Kimerling, with whom were Philip D. Tegeler and, on the brief, Martha Stone, for the appellants (Maloney School Parent Teachers Organization et al.).

      Louise Allen Brown, assistant corporation counsel, with whom, on the brief, was John F. Phelan, assistant corporation counsel, for the appellees (named defendant et al.).

      David S. Doyle, with whom, on the brief, was Robert J. Crean, for the appellee (defendant Waterbury Board of Aldermen).
   Norcott, J.

This is an appeal from the trial court’s denial of the appellants’ motion to intervene as plaintiffs in this case. The appellants are the Maloney School Parent Teachers Organization, an unincorporated association, and individual parents in the Maloney School district in Waterbury. The appellants claim that the trial court erred in denying their motion to intervene as of right and, alternatively, for permissive intervention.

The appellants seek to intervene in a mandamus action brought by the original plaintiffs, the state board of education and the commissioner of the department of education, against the city of Waterbury, the mayor and the boards of aldermen and education. The underlying action arose from the plaintiffs’ plan to desegregate the Maloney School, which was attended primarily by minority students and was found to be segregated within the meaning of General Statutes § 10-226b and § 10-226e-3 of the Regulations of Connecticut State Agencies, which is applicable to the state board of education. In November, 1984, the plaintiffs directed the city of Waterbury to submit a plan to desegregate the Maloney School.

In June, 1986, after many delays and extensions, the defendant city of Waterbury submitted a racial balance plan that called for the construction of a new school in the Maloney School district. Pursuant to this plan, the predominantly minority Maloney School and the predominantly nonminority Barnard School were to be closed, and the students from both schools were to be combined into the new school. The plaintiffs accepted the plan in October, 1986. Thereafter, the defendant board of aldermen declined to pass the bond issue necessary to purchase the site and to construct the new school. The plaintiffs, in response, finally brought the underlying mandamus action to compel the defendants to implement the approved plan and thereby to eliminate racial imbalance in Waterbury.

In May, 1988, the appellants moved to intervene as plaintiffs in the mandamus action. They attached to their motion a proposed complaint in which they sought a declaratory judgment, a temporary and permanent injunction and attorneys’ fees. Their complaint also raised certain federal constitutional issues which were not a part of the plaintiffs’ original complaint. From the denial of their motion, the appellants appeal to this court.

The appellants first contend that the trial court erroneously denied their motion to intervene because they should have been permitted to intervene as of right, and they cite General Statutes § 52-107 and Practice Book § 99 as authority for this position. The defendants maintain that the appellants have no right to intervene because (1) they have no interest in the subject matter of the underlying litigation, (2) the appellants’ ability to protect their children’s rights will be unaffected by any decision in this lawsuit, and (3) the plaintiffs adequately represent the interests of the appellant intervenors. We disagree.

Our Supreme Court has already determined that Practice Book § 99 provides for intervention as of right in Connecticut practice. Horton v. Meskill, 187 Conn. 187, 191, 445 A.2d 579 (1982); see also Richard v. Stanadyne, Inc., 181 Conn. 321, 322 n.1, 435 A.2d 352 (1980). In our review of this case, we first note that the trial court failed to address the issue of whether the appellants were entitled to intervention as a matter of right pursuant to General Statutes § 52-107 and Practice Book § 99. The appellants moved for an articulation of the trial court’s general denial of their motion to intervene, requesting that the court articulate “whether the court denied the motion to intervene as of right.” In its memorandum of decision, the trial court reasoned that (1) the decision to grant or deny a motion to intervene is discretionary, (2) intervention is not routinely granted in a mandamus action, (3) the attorney general, acting for the plaintiffs, represents “all citizens of the state” with respect to the appellants’ state and federal constitutional claims, (4) the applicants were not a necessary party to the case, and (5) the appellants failed to notify the court that their interests were not adequately represented by the plaintiffs and that the complaint did not include all necessary parties to the litigation.

By regarding the appellants’ motion purely as a discretionary matter and in concluding as it did, the court ignored the appellants’ claim that they were entitled to intervention as a matter of right pursuant to Practice Book § 99 and General Statutes § 52-107. There is no merit to the defendants’ contention that by denying the appellants’ permissive intervention, the trial court implicitly also denied their intervention as of right because the standards of the former are less restrictive than the latter. While it may be true that permissive intervention is not “routinely granted” in mandamus actions; see Beccia v. Waterbury, 185 Conn. 445, 455, 441 A.2d 131 (1982); we are not persuaded that intervention as of right is improper in a mandamus action such as this one.

The holding in Horton v. Meskill, supra, has made clear the previously unclear standards for intervention as of right. “An applicant for intervention has a right to intervene under Practice Book § 99 where the applicant’s interest is of such a direct and immediate character that the applicant ‘ “will either gain or lose by the direct legal operation and effect of the judgment.” ’ Bucky v. Zoning Board of Appeals, [33 Conn. Sup. 606, 608, 363 A.2d 1119 (1976)]; DeFelice v. Federal Grain Corporation, [12 Conn. Sup. 199, 201 (1943)]; see Smith v. Gale, 144 U.S. 509, 518, 12 S. Ct. 674, 36 L. Ed. 521 (1892).” Horton v. Meskill, supra, 195.

The defendants argue, however, that, Horton notwithstanding, we must look to authorities under the comparable federal procedure to appreciate fully the standards that govern intervention as of right. In support of this assertion, the defendants cite Rule 24 (a) of the Federal Rules of Civil Procedure (FRCP) and the case of United States v. Board of Education of City of Chicago, 88 F.R.D. 679 (1981).

In Board of Education of City of Chicago, the court, citing FRCP Rule 24 (a) wrote that “to qualify for intervention as of right under Rule 24 (a) (2), an applicant must thus meet each of four conditions: (1) The application must be timely. (2) The applicant must claim an interest relating to the transaction that is the subject of the action. (3) The applicant must show that its ability to protect that interest may as a practical matter be impaired or impeded by disposition of the action. (4) The applicant’s interest must not be adequately represented by the existing parties. Failure to meet any one of the conditions is sufficient to deny intervention as of right. NAACP v. New York, 413 U.S. 345, 369, 93 S. Ct. 2591, 2604, 37 L. Ed. 2d 648 (1973).” United States v. Board of Education of City of Chicago, supra, 684. Even under these standards, we find that the appellants here qualify for intervention as of right.

There is no question in this case regarding the timeliness of the appellants’ motion to intervene. With respect to the next standard, the appellants persuasively argue that they are to be afforded such intervention as of right because the judgment to be rendered specifically affects their “direct or personal rights.” See Horton v. Meskill, supra, 195. Indeed, what can be more direct and personal than the interest of the parent of a school child in the subject matter of this mandamus action—namely, compelling the implementation of the proposed plan for a desegregated school in the Maloney School district?

In applying the third standard in this case, it is clear from the record at trial that the appellants’ interest in the underlying litigation will be affected by the direct legal operation of a judgment rendered in the case. To suggest, as do the defendants, that the appellants’ interest in their children’s right to a desegregated education is somehow divorced from their interest in the implementation of the racial balancing plan for the Maloney School district is to engage in legal semantics. This situation is in no way similar to that of non-minority parents who have been denied the right to intervene as defendants in a school desegregation matter being defended by a municipality. See United States v. Board of School Commissioners, 466 F.2d 573 (7th Cir. 1972), cert. denied, 410 U.S. 909, 93 S. Ct. 964, 35 L. Ed. 2d 271 (1973).

We are also not persuaded by the defendants’ argument that the fourth standard is not met here because the intervenors’ interests are fully represented by the plaintiffs in the underlying case. The defendants rely on the trial court’s finding that “[tjhere is no reason to believe that the Attorney General will not represent all citizens of the state in reaching a conclusion consistent with the United States and State constitutions.” The court’s expressed concern for the entire citizenry of Connecticut misses the significance of the appellants' special interest in this case. That interest may, at times, compete with the interests of the state board of education, the commissioner of education and “all the other citizens” of Connecticut. While the attainment of the ultimate goal, the realization of the school racial balancing plan, may be the same, the plaintiffs and the appellants may well be at odds with regard to the structure of settlement proposals, delays and concessions, which the current plaintiffs might be willing to afford the defendants, arguably to the detriment of the appellants’ interest, and concern for the immediate implementation of the plan. Further, the appellants have “more parochial interests” dealing with the education of their children. See Smuck v. Hobson, 408 F.2d 175, 181 (D.C. Cir. 1969).

Moreover, the appellants’ direct and limited interest in ensuring that any desegregation plan does not disproportionately-impose the burdens of desegregation on them is quite distinguishable from the plaintiffs’ general institutional concerns for racial balance in Connecticut schools. Here, we conclude that the appellants have adequately shown that the state plaintiffs’ representation of their interests may well be inadequate and, thus, have fulfilled the fourth requirement of 24 [a]. See Trbovich v. United Mine Workers, 404 U.S. 528, 538 n.10, 92 S. Ct. 630, 30 L. Ed. 2d 686 (1972).

The defendants’ final argument is that intervention was properly denied because the appellants’ proposed complaint introduces matters beyond the purview of the original plaintiffs’ complaint. Specifically, the defendants contend that the federal constitutional issues and the claim for attorney’s fees are improper matters for joinder in the underlying mandamus action. We disagree.

The defendants do not allege that the intervenors lack standing to pursue their claims, but rather they argue that the intervenors should not be allowed to do so in this suit because their standing differs from that of the original plaintiffs. “Such a restriction on intervention finds no support ... in common sense. The whole point of intervention is to allow the participation of persons with interests distinct from those of the original parties; it is therefore to be expected that an intervenor’s standing will have a somewhat different basis from that of the original plaintiffs.” Cook v. Boorstin, 763 F.2d 1462, 1471 (D.C. Cir. 1985) (addressing intervention under FRCP 24 [a]); see also Kozak v. Wells, 278 F.2d 104, 109 (8th Cir. 1960). The rules of intervention “ ‘should be liberally construed, in order to avoid multiplicity of suits and settle all related controversies in one action.’ ” Kozak v. Wells, supra, 112.

The “interest” criteria of the test for intervention as of right “ ‘is primarily a practical guide to disposing of lawsuits by involving as many apparently concerned persons as is compatible with efficiency and due process.’ ” Foster v. Gueory, 655 F.2d 1319, 1324 (D.C. Cir. 1981). These “persons” include those “who allege that they have suffered injury from the same or very similar wrongful acts as those complained of by the original plaintiffs . . . .” Id., 1324-25. To hold otherwise would be to conclude that an intervenor must allege the exact issues as those alleged by original plaintiffs, and would, therefore, be in direct opposition to and in contradiction with the requirement that in order for intervention to be warranted, the prospective plaintiffs must show that their rights are not adequately represented by the present parties. Once a party has been granted intervention as of right, the scope of issues raised in a proposed complaint is logically within the authority and discretion of the trial court. See J. Friedenthal, Civil Procedure (1985) § 6.10, p. 373 (issue may be permitted if it has a close transactional relationship to existing controversy); cf. Connecticut Water Co. v. Beausoleil, 204 Conn. 38, 47-48, 526 A.2d 1329 (1987) (intervenor in administrative action under Water Pollution Control Act barred from raising claim for private damages).

The intervenors here are entitled to have their day in court, and, contrary to the defendants’ assertions, they are entitled to have it in connection with this main mandamus action. See Kozak v. Wells, supra, 114. The defendants here are free to test the propriety of any part of the appellants’ complaint by the use of requests to revise, pursuant to Practice Book § 147, or motions to strike, pursuant to Practice Book § 152. These matters, of course, are for the trial court to decide.

Because of our conclusion that the trial court erred in denying the appellants’ motion for intervention as of right, we need not reach the question of the trial court’s ruling as to permissive intervention.

There is error, the denial of the motion to intervene is set aside and the case is remanded to the trial court for further proceedings in accordance with this opinion.

In this opinion the other judges concurred.

       Those named appellant intervenors are as follows: Maloney School Parent Teachers Organization, Esteban Cardona, Maria Gordona, Mildred Rodriguez, Angela Gonzalez, Maribel Vargas, Noemi Alvares, Teófilo Alvarez and Francisco Melendez,

       The constitutional claims raised in the appellants’ proposed complaint alleged that the defendants’ failure to implement the racial balance plan violated their rights to equal protection under the fourteenth amendment to the United States Constitution and 42 U.S.C. § 1983.

       The threshold question in this appeal is whether the appellants have made a colorable claim to intervention as a matter of right. See Rodia v. Tesco Co., 11 Conn. App. 391, 393, 527 A.2d 721 (1987). Because this test has been met; see infra; the denial of the appellants’ motion to intervene is an appealable final judgment. McClendon v. Soos, 18 Conn. App, 614, 616-17, 559 A.2d 1163, cert. denied, 212 Conn. 808, 536 A.2d 1356 (1989); Common Condominium Assn., Inc. v. Common Associates, 5 Conn. App. 288, 290-92, 497 A.2d 780 (1985).

       General Statutes § 52-107 and Practice Book § 99 are almost identical and provide respectively:
      “[General Statutes] Sec. 52-107. additional parties maybe summoned in. The court may determine the controversy as between the parties before it, if it can do so without prejudice to the rights of others; but, if a complete determination cannot be had without the presence of other parties, the court may direct that such other parties be brought in. If a person not a party has an interest or title which the judgment will affect, the court, on his application, shall direct him to be made a party.”
      “[Practice Book] Sec. 99. [addition or substitution op parties]— ADDITIONAL PARTIES SUMMONED IN BY COURT
      “The court may determine the controversy as between the parties before it, if it can do so without prejudice to the rights of others; but, if a complete determination cannot be had without the presence of other parties, the court may direct that they be brought in. If a person not a party has an interest or title which the judgment will affect, the court, on his motion, shall direct him to be made a party. (See Gen. Stat., § 52-107 and annotations.)”

       Rule 24 (a) of the Federal Rules of Civil Procedure provides in pertinent part as follows:
      “(a) intervention of right. Upon the timely application anyone shall be permitted to intervene in an action: ... (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest, unless applicant’s interest is adequately represented by existing parties.”

       We note that at oral argument both sides conceded that the trial court before which the case presently rests has already invited and involved the appellants in strategy-settlement sessions aimed at resolving the Maloney school problem.

       We also find it significant that the state plaintiffs here do not oppose the appellants’ motion to intervene.

       Connecticut has not directly addressed this issue. We, therefore, rely upon Federal cases addressing FRCP 24 (a), the federal rule analogous to our Practice Book § 99 and General Statutes § 52-107.

       Practice Book §§ 147 and 152 provide respectively: “Sec. 147. REQUEST TO REVISE
      “Whenever any party desires to obtain (1) a more complete or particular statement of the allegations of an adverse party’s pleading, or (2) the deletion of any unnecessary, repetitious, scandalous, impertinent, immaterial or otherwise improper allegations in an adverse party’s pleading, or (3) separation of causes of action which may be united in one complaint when they are improperly combined in one count, or the separation of two or more grounds of defense improperly combined in one defense, or (4) any other appropriate correction in an adverse party’s pleading, the party desiring any such amendment in an adverse party’s pleading may file a timely request to revise that pleading.”
      “Sec. 152. [Motion to Strike] —in general
      “Whenever any party wishes to contest (1) the legal sufficiency of the allegations of any complaint, counterclaim or cross claim, or of any one or more counts thereof, to state a claim upon which relief can be granted, or (2) the legal sufficiency of any prayer for relief in any such complaint, counterclaim or cross complaint, or (3) the legal sufficiency of any such complaint, counterclaim or cross complaint, or any count thereof, because of the absence of any necessary party, or (4) the joining of two or more causes of action which cannot properly be united in one complaint, whether the same be stated in one or more counts, or (B) the legal sufficiency of any answer to any complaint, counterclaim or cross complaint, or any part of that answer including any special defense contained therein, that party may do so by filing a motion to strike the contested pleading or part thereof.
      “A motion to strike on the ground of the nonjoinder of a necessary party must give the name and residence of the missing party or such information as the moving party has as to his identity and residence and must state his interest in the cause of action.”


text:
    Joseph Leoni et al. v. Water Pollution Control Authority of the Town of Harwinton
    (7823)
    Spallone, Daly and Norcott, Js.

      Argued January 2
    decision released March 20, 1990

      H. James Stedronsky, with whom was Regina M. Wexler, for the appellant (defendant).

      Patsy M. Remullo, with whom, on the brief, was John C. Dillman, for the appellees (plaintiffs).
   Norcott, J.

This appeal arises from the plaintiffs’ declaratory judgment action requesting that a certificate of taking filed by the defendant be declared a nullity. The defendant, the Harwinton water pollution control authority (WPCA), appeals from the trial court’s judgment granting the plaintiffs’ motion for summary judgment and denying the defendant’s cross motion for summary judgment. It further argues that the trial court erred in considering the plaintiffs’ action for declaratory judgment. We find no error.

The following relevant facts are undisputed. The plaintiffs, Joseph Leoni and Vilma Flaherty, are owners of several contiguous parcels of land in Harwinton. Prior to 1955, the town of Harwinton drained certain highway runoff through a drainage swale located on the plaintiffs’ property. In 1984, the town installed sewer lines along the highway, causing the flow of water onto the plaintiffs’ property to increase. The plaintiffs instituted an action to abate that alleged nuisance. The WPCA then instituted a condemnation proceeding to obtain and pay for the right to increase the water flow. The plaintiffs appealed the statement of compensation, seeking judicial determination of the fair market value of the land in question. That action is pending.

The plaintiffs then instituted the action that is the subject of this appeal seeking a declaratory judgment that the WPCA’s taking be declared a nullity. The plaintiffs filed a motion for summary judgment claiming that, as a matter of law, the WPCA violated its own enabling ordinance and General Statutes § 8-24 when it condemned a portion of the plaintiffs’ land for an easement. The defendant then filed a cross motion for summary judgment alleging that General Statutes § 8-24 does not apply to this situation and that the WPCA’s ordinances do not require specific actions in a condemnation action. The defendant further claimed that because the plaintiffs have two pending actions relating to this claim, declaratory judgment is inappropriate, and they should be left to the relief provided by the other actions.

The trial court granted the plaintiffs’ motion for summary judgment and denied the defendant’s cross motion. In denying the defendant’s cross motion, the court held that its challenge to the propriety of the declaratory judgment action exceeds the scope of a motion for summary judgment.

The defendant appeals from the trial court’s judgment claiming that the trial court erred (1) in failing to dismiss the action on its own motion for failure to provide reasonable notice to all interested parties, (2) in considering the plaintiffs’ action for declaratory relief despite the pendency of other actions, (3) in finding as a matter of law that § 8-24 governs the actions of the WPCA, and (4) in finding as a matter of law that the town enabling ordinance may extend controls over the WPCA in excess of those imposed by General Statutes § 7-246 et seq. We find no error.

I

The defendant first claims that the trial court should have dismissed this action on its own motion for violation of Practice Book § 390 because the plaintiffs did not provide notice to the town electors. Practice Book § 390 requires that all persons having an interest in the subject matter of the complaint be parties to the action or have reasonable notice thereof. The defendant argues that the electors had an interest in the outcome of this proceeding because of the plaintiffs’ claim that § 12 of the Harwinton ordinance requires the WPCA to notify the board of selectmen prior to the institution of eminent domain proceedings.

The defendant raises this claim for the first time on appeal. Failure to provide notice to all interested parties is, however, a jurisdictional defect. Kolenberg v. Board of Education, 206 Conn. 113, 122 n.5, 536 A.2d 577, cert. denied, 487 U.S. 1236, 108 S. Ct. 2903, 101 L. Ed. 2d 935 (1988); Manley v. Pfeiffer, 176 Conn. 540, 545, 409 A.2d 1009 (1979); SantaMaria v. Manship, 7 Conn. App. 537, 543, 510 A.2d 194 (1986). “Once brought to the court’s attention, it must be resolved. Cahill v. Board of Education, 198 Conn. 229, 238, 502 A.2d 410 (1985).” Kolenberg v. Board of Education, supra. We will, therefore, address this claim.

In this action, the plaintiffs seek only a determination of whether the WPCA’s actions effectively constituted a taking. They do not challenge the validity or constitutionality of General Statutes § 8-24 or of the town’s enabling ordinance, but rather ask the court to determine from the clear language of the statute and the undisputed facts whether the WPC A followed the requisite procedures to effectuate a taking. This action involves only the interests of the plaintiffs and the WPC A, and, therefore, all those persons with “an interest in the subject matter” were given notice of the action and made parties thereto.

The defendant relies on the cases of Russo v. Watertown, 184 Conn. 30, 441 A.2d 56 (1981), and Tucker v. Maher, 192 Conn. 460, 472 A.2d 1261 (1984), to support the assertion that the town electors are entitled to notice. Those cases, however, involve declaratory judgment actions that are clearly distinguishable from the present one. In Russo v. Watertown, supra, 30-33, the plaintiffs sought to have certain portions of a town charter declared null and void. Such a judgment would have great potential of adversely affecting the interests of many citizens. See also Wenzel v. Danbury, 152 Conn. 675, 677, 211 A.2d 683 (1965).

In Tucker, the plaintiff, a landlord, sought a declaratory judgment holding General Statutes § 17-82k, which prohibits the assignment of public assistance funds to other persons, unconstitutional. Tucker v. Maher, supra, 463. The court held that Practice Book § 390 had not beep complied with because “[i]t is clear that welfare recipients who are tenants and perhaps landlords may have a legitimate interest in the outcome of [that case] and they were entitled to notice.” Id., 469.

In this case, the plaintiffs sought a much narrower ruling, and they accept the validity of the statute and ordinance. They requested only that the trial court determine, based upon a plain reading of the rules, whether the defendant complied with the requirements contained therein. We conclude, therefore, that the town electors had no interest in that subject matter and were not entitled to notice.

II

The defendant’s claim challenging the propriety of the declaratory judgment action requires little discussion. This claim is not one of lack of subject matter jurisdiction. The Superior Court has subject matter jurisdiction “in any action or proceeding to declare rights and other legal relations on request for such a declaration whether or not further relief is or could be claimed. General Statutes § 52-29. ... We have consistently construed this broad statutory grant of jurisdiction and the related Practice Book provisions liberally to serve their sound social purpose. . . . Thus, the Superior Court has subject matter jurisdiction over suits for declaratory relief despite the adequacy of other legal remedies.” (Citations omitted.) England v. Coventry, 183 Conn. 362, 364, 439 A.2d 372 (1981). “Whether the court, despite its jurisdiction over the subject matter, could properly grant declaratory relief ... is a distinct question, which is properly raised by a motion to strike.” Id., 365; see also Redmond v. Matthies, 149 Conn. 423, 426, 180 A.2d 639 (1962); Connecticut Savings Bank v. First National Bank & Trust Co., 133 Conn. 403, 410-11, 51 A.2d 907 (1947).

We note that in filing its cross motion for summary judgment, the defendant acquiesced to this action and waived its right to challenge its propriety. “It is a well-established principle that a party will be prevented from going to a hearing on the merits ‘and accepting the result if favorable, but if otherwise taking advantage of a technical difficulty which he knew of or should have known of from the beginning.’ Post v. Williams, 33 Conn. 147, 153 [1865].” Avis Rent-A-Car System v. Crown High Corporation, 165 Conn. 608, 614, 341 A.2d 1 (1973) (addressing a similar challenge to a motion for summary judgment). When both parties join in submitting the case to the court for a summary determination, “they necessarily [agree] to let the court decide the merits of their respective motions when a favorable decision in either motion would terminate the case by the entry of a judgment.” Id. The trial court was, therefore, correct in finding that this challenge exceeded the scope of summary judgment.

Even if this claim had been properly made, we would find no error. The trial court is afforded wide discretion to render a declaratory judgment. See Practice Book § 390; England v. Coventry, supra. A court “should not entertain an action for a declaratory judgment when an ordinary action affords a remedy as effective, convenient and complete .... but unless that clearly appears, the matter rests within the discretion of the court.” (Citations omitted; emphasis added.) Connecticut Savings Bank v. First National Bank & Trust Co., supra, 410. Here, although there were other pending actions relating to this dispute between the parties, the resolution of this case would settle the legal relationship of the parties; see id., 412; and, hence, serve the practical purpose of either simplifying the issues to be adjudicated in the pending actions or rendering them moot. Kiszkiel v. Gwiazda, 174 Conn. 176, 181, 383 A.2d 1348 (1978); Connecticut Savings Bank v. First National Bank & Trust Co., supra, 413.

Ill

The defendant next argues that the trial court erred in finding as a matter of law that General Statutes § 8-24 governs the defendant’s action in this case. We disagree. Section 8-24 provides in pertinent part: “No municipal agency or legislative body shall . . . locate or extend public utilities and terminals for water, sewerage, light, power, transit and other purposes, until the proposal to take such action has been referred to the [planning] commission for a report.”

The plaintiffs claim that the WPCA violated this section. Attached to their motion for summary judgment, they submitted copies of certain deposition testimony indicating that no referral was made to the planning commission. The defendant, in its cross motion for summary judgment, does not dispute this fact. It argues, rather, that this section applies only to situations involving the actual location or extension of public utilities and terminals, and, therefore, it does not apply here because the defendant was merely “intensifying the use of an existing easement.”

“A primary rule of statutory construction is that if the language of the statute is clear, it is presumed that the words express the intent of the legislature.” Ganim v. Roberts, 204 Conn. 760, 763, 529 A.2d 194 (1987). The language of § 8-24 is clear and unambiguous. Applying this statute to the facts presented, the trial court was correct in concluding that the WPCA should have referred its proposal to install sewer lines to the planning commission for a report. The court, therefore, did not err in concluding as a matter of law that by failing to refer its proposal to the commission, the WPCA’s actions were clearly in violation of the plain language of § 8-24 and were, therefore, invalid.

IV

Because we have determined that the trial court did not err in granting the plaintiffs’ motion for summary judgment on the basis of the defendant’s statutory violation, we need not address the defendant’s final claim.

There is no error.

In this opinion the other judges concurred.

       The defendant, in effect, sought to have its motion for summary judgment granted and, alternatively, if unsuccessful, to have the court find that a declaratory judgment was inappropriate in this case.


author: Borden J.

text:
    Town of Preston v. Connecticut Siting Council et al.
    (7879)
    Borden, Foti and Lavery, Js.
    Argued November 1, 1989
    decision released March 20, 1990

      Kathleen Elder gill, with whom was Frank A. Manfredi, for the appellants (plaintiffs).

      Robert B. Teitelman, assistant attorney general, with whom were Phyllis E. Lemell, assistant attorney general, and, on the brief, ClarineNardi Riddle, attorney general, and Robert E. Walsh and Robert S. Golden, assistant attorneys general, for the appellees (named defendant et ah).

      Francis J. Brady, with whom was Mary Adamowicz, for the appellee (defendant Connecticut Resources Authority).

      Roger E. Koontz, for the appellee (defendant Southeastern Connecticut Regional Resources Authority).

      William H. Narwold, with whom was Karen L. Goldthwaite, for the appellee (defendant American Ref-Fuel Company).
   Borden J.

The plaintiff town of Preston appeals from the judgment of the trial court dismissing its action for a declaratory judgment regarding an application by the three defendant applicants, the Connecticut Resources Recovery Authority (CRRA), the Southeastern Connecticut Regional Resources Recovery Authority (SCRRRA) and the American Ref-Fuel Company (Ref-Fuel), to construct a proposed electric generating resource recovery facility. The dispositive issue is whether the declaratory judgment sought by the plaintiff to interpret Public Acts 1985, No. 85-334, § 6, was rendered moot by the subsequent enactment of Public Acts 1987, No. 87-465. We conclude that it was, and we therefore find no error in the judgment of dismissal.

This case has its genesis in the same regional resource recovery facility described in Preston v. Connecticut Siting Council, 20 Conn. App. 474, 568 A.2d 799 (1990). The proposed facility “was designed to incinerate approximately 180,000 tons per year of municipal solid waste in order to produce steam that would be used solely to generate electricity.” Id., 477.

In October, 1986, the plaintiff filed a petition with the commissioner of environmental protection (commissioner) for a declaratory ruling concerning the facility. The plaintiff claimed that Public Acts 1985, No. 85-334, § 6, codified as General Statutes (Rev. to 1987) § 22a-208b, applied to the facility, and that, therefore, it could not be constructed without a permit from the commissioner issued after local zoning approval. The plaintiff also asserted that the applicants claimed that the facility was governed, not by Public Acts 1985, No. 85-334, § 6, but by General Statutes § 16-50Í, and that the only documentation required for it, therefore, was a certificate of environmental compatibility and public need (certificate) from the siting council (council). The petition sought, inter alia, two closely related declaratory rulings: (1) that compliance with the town’s local zoning regulations must be established before a construction permit could be issued by the commissioner; and (2) that a certificate from the council was insufficient documentation to satisfy the requirements of Public Acts 1985, No. 85-334, § 6. In November, 1986, the commissioner declined to rule on the petition on the ground that it required him to interpret statutes that were beyond his jurisdiction.

In December, 1986, the plaintiff filed this action for a declaratory judgment seeking essentially the same two determinations that it had sought from the commissioner, namely, (1) that the applicants were required to document that the facility complied with local zoning requirements before the commissioner could issue a permit to construct it, and (2) that a certificate from the council was insufficient documentation required by Public Acts 1985, No. 85-334, § 6. Meanwhile, the applicants applied to the council for a certificate, and they also applied to the commissioner for a construction permit for a solid waste facility. The council approved the application for a certificate, and we found no error in the dismissal of the plaintiffs administrative appeal from that decision. See Preston v. Connecticut Siting Council, supra. The commissioner granted the application for a construction permit, and the plaintiff appealed from that decision to the Superior Court. That appeal is still pending. See footnote 5, infra. Also, in 1987, the legislature enacted Public Acts 1987, No. 87-465, § 1, amending General Statutes § 22a-208b.

The applicants and the plaintiff filed cross motions for summary judgment. On January 30,1989, the court dismissed the action for lack of subject matter jurisdiction on the basis that the plaintiff had not exhausted its administrative remedies because the construction permit application was still pending before the commissioner. This appeal followed.

The plaintiff claims that the court erred by misapplying the doctrine of exhaustion of administrative remedies. We need not consider, however, whether the theory underlying the judgment of dismissal was correct, because we conclude that the issues the plaintiff sought to have the court adjudicate were moot. The court did not err, therefore, in dismissing the action.

It is settled that “in the case of actions praying for a declaratory judgment . . . the right to such relief is determined by the situation which has developed at the time of trial and not by that existing at the time the action was begun. . . . That the court in an action for a declaratory judgment . . . will look at the facts existing at the time of trial is more just than unjust. The remedy of a judicial declaration of rights is to inform parties of their rights and duties so that there may be an orderly settlement of their disputes. The dispute should not be settled on the basis of a situation which no longer exists.” (Citations omitted.) Edward Balf Co. v. East Granby, 152 Conn. 319, 323, 207 A.2d 58 (1965). “In an action seeking a declaratory judgment, the sole function of the trial court is to ascertain the rights of the parties under existing law.” (Emphasis added.) Middlebury v. Steinmann, 189 Conn. 710, 715, 458 A.2d 393 (1983); see also Ginsberg v. Post, 177 Conn. 610, 616, 418 A.2d 941 (1979).

In this case, the plaintiff sought, from both the commissioner and the trial court, a declaration interpreting Public Acts 1985, No. 85-334, § 6. The success of the plaintiffs claim hinged on its argument that the proposed facility was a “solid waste facility” within the meaning of Public Acts 1985, No. 85-334, § 6. By the time the case was presented to the trial court, how-. ever, the legislature had amended that statute, which had become codified as General Statutes (Rev. to 1987) § 22a-208b by enacting Public Acts 1987, No. 87-465, § 1, codified as General Statutes (Rev. to 1989) § 22a-208b. See footnote 4, supra. That amendment changed the language describing the subject matter of the section from “a solid waste facility” to “a facility for the land disposal of solid waste.” Compare footnotes 2 and 4, supra.

Furthermore, it is quite clear from the abundant legislative history of Public Acts 1987, No. 87-465, § 1, that it was meant to clarify, rather than to change, the meaning of Public Acts 1985, No. 85-334, § 1. See, e.g., Conn. Joint Standing Committee Hearings, Environment, Pt. 2, 1987 Sess., pp. 444-46, remarks of Representative William J. Cibes, Jr.; 30 S. Proc., Pt. 13, 1987 Sess., pp. 4674-76, remarks of Senator Michael P. Meotti; 30 S. Proc., supra, pp. 4698-700, remarks of Senator Steven Spellman; 30 H.R. Proc., Pt. 23,1987 Sess., pp. 8305, 8322, remarks of Representative Mary M- Mushinsky. The 1987 act, therefore, had full retroactive effect. State v. Magnano, 204 Conn. 259, 284, 528 A.2d 760 (1987).

The plaintiff did not seek to persuade the trial court that General Statutes (Rev. to 1989) § 22a-208b, which codified the 1987 enactment, applied nonetheless to the facility, on the basis that it was a “facility for the land disposal of solid waste.” Indeed, the plaintiff argued that the 1987 enactment was not retroactive and that, therefore, General Statutes (Rev. to 1987) § 22a-208b, codifying the 1985 enactment, applied to the facility on the basis that it was a “solid waste facility.”

Thus, the plaintiff persisted in seeking from the trial court an interpretation of statutory language that was no longer in effect, and that had been subsequently ciarified in a significant way likely to affect its claim. The plaintiffs claim for a declaratory judgment, therefore, became moot because the plaintiff no longer sought to “ascertain the rights of the parties under existing law”; Middlebury v. Steinmann, supra; but rather sought to resolve a dispute “on the basis of a situation which no longer exist[ed].” Edward Balf Co. v. East Granby, supra.

There is no error.

In this opinion the other judges concurred.

       The other defendants to this action are the named defendant and the department of environmental protection.

       Public Acts 1985, No. 85-334, § 6, provided: “Sec. 6. (NEW) The commissioner of environmental protection may issue a permit to construct a solid waste facility pursuant to section 22a-208 of the general statutes, provided the applicant submits to the commissioner a copy of a valid certificate of zoning approval, special permit, special exception or variance, or other documentation, establishing that the facility complies with the zoning requirements adopted by the municipality in which such facility is located pursuant to chapter 124 of the general statutes or any special act.”

       The plaintiff sought other judicial determinations which all parties agree are no longer involved in this case.

       Public Acts 1987, No. 87-465, § 1, provided: “Section 22a-208b of the general statutes is repealed and the following is substituted in lieu thereof:
      “The commissioner of environmental protection may issue a permit to construct a [solid waste] facility FOR THE LAND DISPOSAL OF SOLID WASTE pursuant to section 22a-208a, provided the applicant submits to the commissioner a copy of a valid certificate of zoning approval, special permit, special exception or variance, or other documentation, establishing that the facility complies with the zoning requirements adopted by the municipality in which such facility is located pursuant to chapter 124 or any special act.”

       The trial court’s memorandum of decision, although dated October 24, 1988, was filed on January 30,1989, the date of the judgment dismissing the declaratory judgment action. On November 23,1988, the commissioner issued the construction permit. The plaintiff subsequently appealed from that decision to the Superior Court.

       Compare Young v. Chase, 18 Conn. App. 85, 96-98, 557 A.2d 134 (1989), where we held that a validating act did not apply to a declaratory judgment action pending on the effective date of the act. In that case, however, the language of the act specifically precluded its application to such an action. Id., 97.