text:
    Susan E. Senior v. Kenneth E. Senior
    (2824)
    Dupont, C.P.J., Hull and Spallone, Js.
    Argued March 5
    decision released May 21, 1985

      Diane J. Getzler, with whom, on the brief, was Gloria W. Spiekermann, for the appellant (plaintiff).

      Marcella Gereg, with whom, on the brief, was Dianne M. Ventura, for the appellee (defendant).
   Hull, J.

The plaintiff appeals from the judgment of the trial court modifying a custody award which was part of a judgment of dissolution rendered on August 4, 1982. In the dissolution judgment, the court, Ford, J., carefully considered all relevant criteria and ordered that the two minor children should remain together in the marital residence in the joint custody of the plaintiff wife and defendant husband with their physical residence with the mother. The defendant was granted liberal visitation rights.

On April 25, 1983, the defendant moved to modify the dissolution judgment on three grounds: (1) that there has been a substantial change regarding the children and their custody and welfare; (2) that the plaintiff is cohabitating with an unrelated male; and (3) that the plaintiffs activities and her care of the children were not in their best interests. The defendant sought an order transferring custody of the two minor children to him with rights of visitation granted to the plaintiff.

The court, Moraghan, J., in an oral memorandum of decision on November 22,1983, concluded as follows: (1) there was no substantial change of circumstances that would significantly affect the custody and visitation order rendered in the dissolution judgment; (2) cohabitation was not established; (3) there were no detrimental effects on the minor children from the plaintiff’s relationship with a business partner, Joseph Fritz. The court issued an order “made supplemental to Judge Ford’s decision” restricting the presence of any unrelated male on Mrs. Senior’s premises between the hours of 5:30 p.m. and 9:30 a.m. That restriction was then made more specific, as follows: “For the purposes of clarification, the court’s order with respect to ‘no unrelated male, shall be present upon the premises where Mrs. Senior resides or vacations from 5:30 in the evening until 9:30 the following morning,’ shall be defined and limited to mean Joseph Fritz, and only he, unless he is accompanied by his spouse or by a lady of an approximate equal age.”

The court based its order concerning Fritz on its interpretation of the implications of Gallo v. Gallo, 184 Conn. 36, 440 A.2d 782 (1981).

We do not reach the question of the propriety of the court’s judgment in the light of Gallo v. Gallo, supra. That case was an appeal from the trial court’s judgment in the dissolution action imposing certain restrictions on the defendant’s overnight visitations by the child and thus did not involve the question of a material change in the circumstances with regard to custody occurring after a dissolution judgment. Here, the court’s postjudgment order was an attempt to exercise its powers under General Statutes § 46b-56 as to the conditions and limitations on the plaintiffs physical custody of her children which it deemed equitable. The order was a modification of the original custody order. “After the final decree, this court has limited the broad discretion given the trial court to modify custody orders under General Statutes § 46b-56 by requiring that modification of a custody award be based upon either a material change of circumstances which alters the court’s finding of the best interests of the child; Trunik v. Trunik, 179 Conn. 287, 289-90, 426 A.2d 274 (1979); Cleveland v. Cleveland, 165 Conn. 95, 100, 328 A.2d 691 (1973); Tippin v. Tippin, 148 Conn. 1, 3, 166 A.2d 448 (1960); Sullivan v. Sullivan, [141 Conn. 235, 239, 104 A.2d 898 (1954)]; or a finding that the custody order sought to be modified was not based upon the best interests of the child. Stewart v. Stewart, [177 Conn. 401, 407, 418 A.2d 62 (1979)]; Simons v. Simons, 172 Conn. 341, 348, 374 A.2d 1040 (1977).” Hall v. Hall, 186 Conn. 118, 122, 439 A.2d 447 (1982); see also Pascal v. Pascal, 2 Conn. App. 472, 478, 481 A.2d 68 (1984). The court found that there was no material change of circumstances which altered the original court’s finding of the best interests of the children.

The second ground for modifying a custody order is not involved in this case. No claim was made that the original order was not based on the best interests of the children. Thus, the court’s modification of the conditions and limitations of the plaintiff’s custody of the two minor children cannot stand.

There is error, the judgment is set aside and the case is remanded with direction to render judgment as on file except that the order concerning the presence of Joseph Fritz in the plaintiff’s home shall be omitted.

In this opinion the other judges concurred.

       General Statutes § 46b-56b provides in pertinent part as follows: “(a) In any controversy before the superior court as to the custody or care of minor children, and at any time after the return day of any complaint under section 46b-45, the court may at any time make or modify any proper order regarding the education and support of the children and of care, custody and visitation if it has jurisdiction under the provisions of chapter 815o. Subject to the provisions of section 46b-56a, the court may assign the custody of any child to the parents jointly, to either parent or to a third party, according to its best judgment upon the facts of the case and subject to such conditions and limitations as it deems equitable. The court may also make any order granting the right of visitation of any child to a third party including but not limited to grandparents, (b) In making or modifying any order with respect to custody or visitation, the court shall be guided by the best interests of the child, giving consideration to the wishes of the child if he is of sufficient age and capable of forming an intelligent preference, provided in making the initial order the court may take into consideration the causes for dissolution of the marriage or legal separation if such causes are relevant in a determination of the best interests of the child.”


source: Caselaw Access Project

author: Borden, J.

license: Public Domain

text:
    Joan Fisher v. Leonard Fisher
    (2961)
    Dupont, C.P.J., Bokden and Spallone, Js.
    Argued March 12—decision
    released May 21, 1985

      Lucia B. Brooks, with whom, on the brief, was Jerry Davidoff, for the appellant (plaintiff).

      Michael A. Meyers, with whom was George J. Markley, for the appellee (defendant).
   Borden, J.

In this marital dissolution case, the plaintiff appeals from certain financial orders incidental to the judgment of the trial court, Hon. William L. Tierney, state trial referee, claiming that it erred in assigning the marital home to the defendant and in ordering the plaintiff to pay certain of the defendant’s counsel fees to defend the appeal. We find error only with respect to the claim concerning counsel fees.

The court found the following facts: The parties were married for twenty-two years. It was the plaintiff’s second and the defendant’s third marriage. There are no children of the marriage.

The plaintiff, who is fifty-four years old and in good health, had two years of college education, but has no specialized training and worked only intermittently during the marriage. She has a trust fund valued at $419,000, which provides her with a good income. This trust was funded by her parents. Her brother formerly controlled the trust, until he was removed from control. The defendant, who is sixty-four years of age, has inoperable heart disease, bladder infection, bronchial asthma, and can only do a limited amount of work. During the marriage, he worked only sporadically. Some of his jobs produced a good income for short periods; most did not. Nonetheless, the parties traveled frequently, at the defendant’s expense, using money which he accumulated from his business enterprises.

The marital home, now valued at $475,000, has an equity, after deduction of the two mortgages on it, of $339,000. It was purchased in 1977 for $160,000; $60,000 of this amount was supplied by the defendant, the balance by a mortgage on which both parties are obligated. The plaintiff did not contribute financially to the purchase. The property initially was placed in both names, and was later transferred to the plaintiff’s sole name in order to avoid the defendant’s creditors. The defendant made about $80,000 of improvements to the home.

The defendant sought an interest in the income of the trust, claiming to be largely responsible for the removal of the plaintiff’s brother from its control. The court rejected this claim as without merit, and found that he has no interest in the trust fund.

On January 4,1984, the court rendered its judgment. It awarded the home to the defendant subject to the mortgages, finding that this was the only asset left to him after the twenty-two years of the marriage. It also made several other financial orders, the propriety of which are not involved in this appeal.

After the plaintiff appealed, the defendant moved for, inter alia, counsel fees to defend the appeal. On February 7,1984, the court granted the defendant’s motion and ordered the plaintiff to pay the defendant $2500 in counsel fees to defend the appeal. The plaintiff took no timely action to amend her appeal or preliminary statement of issues to include that order. See Practice Book § 3062. On May 3, 1984, the defendant filed a motion for additional counsel fees to defend the appeal. On June 7, 1984, the court granted that motion and ordered the plaintiff to pay the defendant an additional $500 in counsel fees to defend the appeal. The plaintiff thereupon amended her appeal and preliminary statement of issues to include the issue of “[w]hether the court erred in awarding counsel fees to the defendant to defend this appeal where there was no evidence that the payor spouse had ample liquid funds.”

I

The plaintiffs attack on the award of the marital home to the defendant is two-pronged and factual. She argues that the award was based on two erroneous factual findings: That she is entitled, not only to the income of the trust, but to its principal; and that the defendant made about $80,000 in improvements to the home. We disagree.

We must read the language of a trial court in the context of its entire memorandum of decision, declining to find reversible error solely because of what may be an inappropriate choice of words. Coe-Park Donuts, Inc. v. Robertshaw Controls Co., 1 Conn. App. 84, 87-89, 468 A.2d 292 (1983). We apply this principle to the trial court’s memorandum of decision in this case. We conclude that, reading its language fairly and in the context of the entire memorandum of decision, particularly as further articulated in response to the plaintiff’s motion for rectification, the court did not base its award on a finding that the plaintiff had an interest in the principal of the trust. The language of the trial court, while not free from ambiguity, is fairly susceptible of a reading that the court focused, not on the availability to the plaintiff of the principal of the trust, but on her right to its full income for her life. This reading is buttressed by the court’s response to the motion for rectification: “My notes indicate that . . . she is the sole beneficiary of the Trust. She’s entitled to the income and I believe the principal, although, the principal isn’t involved here. The question is what is coming in, and what her future assets are. And I found, I believe, or my notes indicate, that the Trust can easily earn ten percent. Although, at the time it was earning something less than that. But that no effort had been made to increase the income to what is a very reasonable income on today’s market.” (Emphasis added.)

The second prong of the plaintiff’s factual attack is also without merit. We have reviewed the record and are satisfied that the court’s finding that the defendant made about $80,000 in improvements to the home is supported by evidence and is not clearly erroneous.

II

The plaintiff argues that the court erred in its two awards of counsel fees to defend the appeal. We find no error in the first award, and error in the second award.

We decline to review the first award, made on February 7,1984, because the plaintiff’s claim of error with respect to it is not properly before us. The plaintiff did not amend her appeal to include a claim regarding the court’s award of counsel fees on appeal until June 13, 1984, after the trial court made the second award. To challenge a postjudgment ruling, Practice Book § 3062 requires the appellant to file an amended appeal within twenty days of the notice of the ruling appealed from. “Because the [plaintiff] did not comply with the mandate of § 3062, we will not consider [her] claim concerning attorney’s fees.” Brown v. Brown, 190 Conn. 345, 350-51, 460 A.2d 1287 (1983). We see no reason on this record to relax this requirement.

The plaintiff’s claim regarding the second award of counsel fees has merit. It was made five months after the judgment, -without an inquiry into the parties’ current financial status, despite timely and adequate objection by the plaintiff on that basis. See Anderson v. Anderson, 191 Conn. 46, 59, 463 A.2d 578 (1983); Vaiuso v. Vaiuso, 2 Conn. App. 141, 151, 477 A.2d 678 (1984).

There is error in part, the judgment is set aside as to the award of counsel fees rendered on June 7,1984, only, and the case is remanded with direction to vacate that award of counsel fees.

In this opinion the other judges concurred.

       Although the court did not formally find it as a fact, it is undisputed that the plaintiff is now, as a result of her brother’s removal, co-trustee of the trust, with a bank as the other co-trustee.

       It is undisputed that the plaintiff is the sole income beneficiary of the trust for her life.


author: Daly, J.

text:
    Equico Lessors, Inc. v. Rockville Reminder, Inc.
    (2857)
    Borden, Spallone and Daly, Js.
    Argued March 6—decision
    released May 21, 1985

      Robert E. Wright, with whom, on the brief, were John Rose, Jr., and Barry S. Feigenbaum, for the appellant (plaintiff).

      Mitchel E. Kallet, for the appellee (defendant).
   Daly, J.

The plaintiff instituted this action for breach of contract against the defendant. From a judgment rendered in favor of the defendant, the plaintiff has appealed.

The underlying facts are not in dispute. On August 21, 1980, Phase Liner North Atlantic Ltd. (Phase Liner) sent its employees to the defendant’s plant to lease and install certain energy saving equipment. The defendant signed the equipment lease and an acknowledgment of receipt and acceptance of equipment after a written guarantee was made by Phase Liner. The guarantee provided that in the event that the defendant did not save about $426 monthly on its electrical bill, after three full monthly bills, Phase Liner would remove the equipment and refund all payments made less any actual savings realized.

The lease was assigned by Phase Liner to the plaintiff on August 21, 1980. The downpayment made by the defendant was turned over to the plaintiff by Phase Liner. Subsequent monthly payments were made directly to the plaintiff until the defendant ceased making payments because the equipment was not working. The plaintiff commenced this suit against the defendant relying on the terms of the lease which provided, inter alia: “The assignee’s rights shall be free from all defenses, set-offs or counterclaims which Lessee may be entitled to assert against Lessor.”

The trial court found for the defendant, stating that the lease was not the full and final agreement of the parties due to the signing of the contemporaneous guarantee agreement. It found that the plaintiff failed to sustain its burden of proof that it took the assignment for value, in good faith and without notice of any claim or defense.

The trial court concluded that the relationship between Phase Liner and the plaintiff was so close that it rendered the waiver clause unenforceable. This conclusion was based on a number of facts: at a regular Phase Liner sales meeting, a representative of the plaintiff supplied the plaintiff’s standard preprinted leasing forms, showing the plaintiff as assignee, to Phase Liner’s salesmen, explained how to fill them in, and was present when it was stressed that the plaintiff would finance the leases and when guarantees of performance for the purpose of selling the product were discussed. Thus, the plaintiff was aware of guarantees to be supplied to Phase Liner’s customers. The plaintiff not only purchased the lease from Phase Liner, but also purchased the equipment which was leased.

This equipment failed to measure up to the representations made. After considering this evidence, the trial court found the waiver of defense clause to be unenforceable against the defendant.

The central issue concerns the assignee’s right to enforce a waiver of defense clause in the equipment lease. This case is governed by § 9-206 (1) of the Uniform Commercial Code, which is § 42a-9-206 (l) of the General Statutes. The defendant falls within the operative provisions of § 9-206 (1) because the goods leased are, with respect to the defendant, equipment and not consumer goods. Laurel Bank & Trust Co. v. Mark Ford, Inc., 182 Conn. 437, 441, 438 A.2d 705 (1980).

Clearly, § 9-206 (1) is intended to give qualified assignees the protection generally accorded a holder in due course. This section provides that a lessee may agree not to assert against an assignee any claim or defense which he may have against the lessor. Such an agreement is enforceable by an assignee who takes his assignment for value, in good faith, and without notice of a claim or defense except as to defenses which may be asserted against a holder in due course of a negotiable instrument. National Bank of North America v. DeLuxe Poster Co., 51 App. Div. 2d 582, 582-83, 378 N.Y.S.2d 462 (1976).

“Evidence of the existence of a personal defense does, however, shift to the holder of the instrument the burden of proving his due course status. General Statutes § 42a-3-307 (3). . . . That burden requires the holder to prove his taking of the instrument ‘(a) for value; and (b) in good faith; and (c) without notice that it is overdue or has been dishonored or of any defense against or claim to it on the part of any person.’ General Statutes § 42a-3-302.” Funding Consultants, Inc. v. Aetna Casualty & Surety Co., 187 Conn. 637, 640-41, 447 A.2d 1163 (1982). We believe that this rule, applicable to negotiable instruments, should apply here as well.

A question of fact is presented as to whether the plaintiff did, in fact, take its assignment in good faith and without knowledge of any claim or defense. National Bank of North America v. DeLuxe Poster Co., supra, 583. Here, the trial court found that the plaintiff had not sustained its burden of proof. It has long been established that the trial court must determine the credibility of witnesses and the weight to be given their testimony. State v. D ’Ambrosia, 195 Conn. 461, 463, 488 A.2d 822 (1985); Holden & Daly, Connecticut Evidence (1966 and Sup. 1983) § 125 (a).

Under these circumstances, where the lease was executed and assigned at about the same time and upon the same instrument, and the preprinted leasing form employed was furnished by the assignee, it has been held that the assignee does not take the assignment “without notice of a claim or defense” and is therefore not entitled to the enforcement protection provided. Massey-Ferguson Credit Corporation v. Brown, 547 P.2d 846, 850 (Mont. 1976). Unless there was an error of law or a legal or logical inconsistency with the facts found, the conclusion of the trial court must stand. Johnson v. Fuller, 190 Conn. 552, 556, 461 A.2d 988 (1983).

There is no error.

In this opinion the other judges concurred.

       General Statutes § 42a-9-206 (1) provides in relevant part: “Subject to any statute or decision which establishes a different rule for buyers or lessees of consumer goods, an agreement by a buyer or lessee that he will not assert against an assignee any claim or defense which he may have against the seller or lessor is enforceable by an assignee who takes his assignment for value, in good faith and without notice of a claim or defense, except as to defenses of a type which may be asserted against a holder in due course of a negotiable instrument under article 3.”


author: Stoughton, J.

text:
    Gaming Systems Corporation v. Board of Tax Review of the City of New Haven
    (2112)
    Dupont, C.P.J., Borden and Stoughton, Js.
    Argued March 8—decision
    released May 21, 1985

      Mary E. Holzworth, with whom, on the brief, was John R. Fitzgerald, for the appellant (plaintiff).

      Charles Albom, corporation counsel, with whom, on the brief, was Edward F. Piazza, deputy corporation counsel, for the appellee (defendant).
   Stoughton, J.

The plaintiff owned a number of lottery terminals or machines in the city of New Haven. The machines were assessed at 70 percent of true and actual value by the defendant for the tax years 1981 and 1982. The plaintiff appealed the 1981 assessment to the board of tax review, which upheld that assessment. The plaintiff appealed from the decision, and the tax year 1982 was added to the appeal by amendment. The trial referee upheld the assessment for 1981 but reduced the assessment for 1982. The plaintiff has appealed. We find no error.

General Statutes § 12-62a (b) requires that each municipality assess all property for purposes of the local property tax at a uniform rate of 70 percent of present true and actual value, as determined under General Statutes § 12-63. Under General Statutes § 12-63, the present true and actual value of all property other than certain kinds of land shall be deemed by all assessors and boards of tax review to be the fair market value thereof. In an appeal from a tax valuation, the burden is on the plaintiff to prove that it was excessive or unjust. Rustici v. Stonington, 174 Conn. 10, 15, 381 A.2d 532 (1977).

The memorandum of decision, supplemented by the undisputed exhibits, discloses the following facts: On March 1,1981, the plaintiff purchased lottery machines and other assets from Datatrol, Incorporated. With the purchase, the plaintiff acquired from Datatrol the contract to run the lottery in Connecticut and certain other states. The price for the assets purchased by the plaintiff from Datatrol was about $4,400,000. The plaintiff allocated about $1,900,000 of the total purchase price to the fixed assets situated in Connecticut. It allocated about $950,000 of this sum to 825 new and used lottery machines, or $1152 per machine. The contract with the state of Connecticut provided an option for the state to purchase the operation at the end of the renewal terms. The option price for lottery machines installed after March 31,1980, was $4500 for each machine, less $62.50 for each month of use per machine. The contract between Datatrol and the state ran for three years, and, therefore, the plaintiff depreciated the machines over the life of the contract. At the end of three years, the plaintiff showed no value for these machines on its books.

The plaintiff filed with the New Haven assessor a list of taxable personal property dated October 26, 1981. The plaintiff reported property for which it gave a list price, new, of $65,664, and a net value of $47,253. It reported by way of explanation that fifty-seven gaming terminals were purchased on March 1, 1981, for $1152 each; that they had a useful life from March 1, 1981, of twenty-five months; they had a useful life from October 1, 1981, of eighteen months; and the depreciated value of each machine was $829. This means that the plaintiff had claimed depreciation for the machines at 4 percent per month, and that for a seven month period the plaintiff had claimed depreciation for each machine at 28 percent. The plaintiff also furnished the assessor with a list of the fifty-seven locations where the terminals were to be found in New Haven in 1981.

The plaintiff also filed with the assessor a list of taxable personal property dated October 14, 1982. It reported property for which it gave a net value of $16,560. It attached an unsigned note by way of explanation. The note explains that terminals were purchased on March 1,1981, for $1152 each; the Connecticut lottery contract expires on March 12, 1983, at which time all terminals will be scrapped; that straight line depreciation from March 1, 1981, to zero as of March 30, 1983, is claimed; and that the depreciated value per terminal as of October 1, 1982, is $1152 x 6/25, or $276. That is, the plaintiff claimed depreciation to zero value over twenty-five months, and that the value for the remaining six months after October 1, 1982, was $276 per terminal. The plaintiff therefore claimed depreciation for each terminal at 76 percent. In order to have a total net value of $16,560 in 1982, the plaintiff must have had sixty terminals, although that information does not appear on the form.

The assessor placed a true and actual value of $3325 on each machine for the tax year of October 1, 1981. For the tax year of October 1,1982, the assessor added 5 percent to the value of each machine, which added value was subsequently disallowed by the referee.

The referee found that the assessor based his opinion as to the value of the machines on his past experience as an assessor in appraising personal property. He had been the personal property assessor for the city for eight years, and during the course of that period he had had to determine the value of machines of many types, some of which were comparable, in some degree, to the plaintiff’s machines. He examined the plaintiff’s machines at their installation sites. He had the opportunity to examine the contract between Datatrol and the state, and knew of the option given the state to purchase machines at a price of $4500 each, less depreciation. There was no established market for the machines, so that the assessor was obliged to resort to some method of ascertaining value other than by market price. New Haven Water Co. v. Board of Tax Review, 166 Conn. 232, 236, 348 A.2d 641 (1974).

The plaintiff presented the assessor with almost no information to assist him in his task. The machines were depreciated by 5 percent by the assessor, but he was given no information to support the claims for depreciation made by the plaintiff, except the claim that the machines would be scrapped at the termination of the contract. The plaintiff did not produce any substantial information as to the age of the machines, except a portion of the contract between the plaintiff and Datatrol, showing 584 used machines and 241 new machines purchased at a discount from Datatrol’s book value on March 1, 1981.

The taxpayer is under a duty to file with the assessor a list of his taxable property and furnish the facts upon which valuations may be based. If he fails to do so, the assessor is only required to act upon the best information he can obtain. Cooley Chevrolet Co. v. West Haven, 146 Conn. 165, 169, 148 A.2d 327 (1959). It is for the trier to determine the credibility of witnesses and the weight to be accorded their testimony. Having heard the testimony and seen the exhibits, the referee concluded that the plaintiff had failed to sustain its burden of proving that the assessments were excessive or unjust except as to the 5 percent penalty added by the assessor for 1982. That conclusion is not clearly erroneous.

There is no error.

In this opinion the other judges concurred.

       This appeal was originally filed in the Appellate Session of the Superior Court. General Statutes § 51-197a (e).


text:
    Stephen Reney Memorial Fund v. Town of Old Saybrook et al.
    (2725)
    Hull, Borden and Daly, Js.
    Argued March 7
    decision released May 21, 1985

      James D. Reardon, for the appellant (plaintiff).

      Michael E. Cronin, Jr., with whom, on the brief, was George J. Kinsley, for the appellees (named defendant et al.).

      Kevin E. Booth, for the appellees (intervening defendants Walter Pasieka et al.).
   Daly, J.

The plaintiff instituted this action for a declaratory judgment to challenge the constitutionality of a zoning ordinance. From a judgment rendered in favor of the defendants, the plaintiff has appealed.

The plaintiff fund, as well as individual members of the fund, have guaranteed the payment of promissory notes issued for the purchase and construction of night lights to illuminate the defendant town’s high school athletic field located in a residential area. The plaintiff had received tentative approval for the construction from the defendant zoning enforcement officer (ZEO) conditioned on compliance with the town’s zoning regulations, particularly § 61.6. After the construction and installation had been completed, the ZEO found that the lighting facilities were not in conformance with § 61.6 of the zoning regulations, and issued a cease and desist order. In addition to § 61.6, the ZEO also considered the standards set forth in § 61.1, which concerns land use. The lights were thus not permitted to be turned on.

The plaintiff has specifically challenged the constitutionality of § 61.6, which provides: “Glare and Heat: No light shall be transmitted outside the lot where it originates so as to endanger the public health or safety, including the public safety on any street or highway, or to impair the value and reasonable use of any other lot. In Residence Districts the source of any lighting located out-of-doors on any lot shall not be visible from any other lot; in other than Residence Districts the source of any lighting located out-of-doors and within 200 feet of a Residence District boundary line shall not be visible at such boundary line.”

The plaintiff claims that § 61.6 is unconstitutional because it is impermissibly vague. The plaintiff also maintains that the defendants are estopped from enforcing this regulation due to the actions of various town officials, and that the court erred in certain evidentiary rulings. We find no error.

We first consider the plaintiffs claim that the trial court erred in concluding that the standard outlined in § 61.6 of the Old Saybrook zoning regulations is an intelligible standard and thus not impermissibly vague.

A statute should be construed so as to give effect to the legislative intent, while keeping in view the object of the statute. This principle is applicable to a zoning ordinance. Langbein v. Board of Zoning Appeals, 135 Conn. 575, 580, 67 A.2d 5 (1949). The object of zoning, primarily, is to promote the health, safety, welfare and prosperity of the community. Devaney v. Board of Zoning Appeals, 132 Conn. 537, 539, 45 A.2d 828 (1946). The obvious intent of § 61.6 is to reduce glare emanating from outside lights.

“A statute is not to be held unconstitutional unless its invalidity on that ground is established beyond a reasonable doubt. Adams v. Rubinow, 157 Conn. 150, 152, 251 A.2d 49 [1968]. When the statute will serve to further the welfare of the citizens of the state, we must make every intendment in its favor. Leg at v. Adorno, 138 Conn. 134, 145, 83 A.2d 185 [1951].” Aunt Hack Ridge Estates, Inc. v. Planning Commission, 160 Conn. 109, 112, 273 A.2d 880 (1970). “ ‘As the complexity of economic and governmental conditions increases, the modern tendency is liberal in approving broad regulatory standards so as to facilitate the operational functions of administrative boards or commissions.’ ” Id., 115.

“As a general rule, the constitutionality of a statutory provision being attacked as void for vagueness is determined by the statute’s applicability to the particular facts at issue. ... To do otherwise, absent the appearance that the statute in question intrudes on fundamental constitutional guarantees, particularly first amendment freedoms, would be to put courts in the undesirable position of considering every conceivable situation which might possibly arise in the application of complex legislation.” (Citations and footnote omitted.) State v. Pickering, 180 Conn. 54, 57, 428 A.2d 322 (1980). “ ‘[A] statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.’ ” Id., 60. “This notion of fair warning is intended to ensure that vague laws do not become a trap for the innocent.” Id. In short, a statute must afford a person of ordinary intelligence a reasonable opportunity to know what is permitted or prohibited, in order not to be violative of due process. Seals v. Hickey, 186 Conn. 337, 343, 441 A.2d 604 (1982).

In construing the ordinance, we must be guided only by the accepted meaning of the words we find in the provision. General Statutes § 1-1 (a); Johnston v. Hartford, 96 Conn. 142, 151, 113 A. 273 (1921). “If the meaning of a statute can be fairly ascertained a statute will not be void for vagueness since ‘[m]any statutes will have some inherent vagueness, for “[i]n most English words and phrases there lurk uncertainties.” ’ ” State v. Pickering, supra, 62. In order to repel a vagueness challenge, “a statute must state its standard with adequate clarity and mark sufficiently distinct boundaries for the law to be fairly administered. Lack of precision, however, is not, in or of itself, offensive to the requirement of due process.” State v. Anonymous, 179 Conn. 155, 164, 425 A.2d 939 (1979).

Here, fair warning is conveyed by § 61.6 that the source of any outside light shall not be visible from any other residential lot. This ordinance is reasonably specific and direct enough so as to afford a person of ordinary intelligence a reasonable opportunity to know what is or is not proscribed by it. Hence, we conclude that the words of § 61.6 at issue are not unconstitutionally vague, because they gave the plaintiff fair warning.

We next turn to the plaintiffs claim that the trial court erred in concluding that the ZEO was not estopped from enforcing the zoning regulations. A municipality may be estopped from enforcing its zoning regulations in special circumstances. A claim of estoppel requires proof of two essential elements: the party against whom the estoppel is claimed must do or say something calculated or intended to induce another party to believe that certain facts exist and to act on that belief; and the other party must change its position in reliance on those facts, thereby incurring some injury. West Hartford v. Rechel, 190 Conn. 114, 121, 459 A.2d 1015 (1983). In municipal zoning cases, however, estoppel may be invoked “(1) only with great caution, (2) only when the resulting violation has been unjustifiably induced by an agent having authority in such matters, and (3) only when special circumstances make it highly inequitable or oppressive to enforce the regulations.” Zoning Commission v. Lescynski, 188 Conn. 724, 732, 453 A.2d 1144 (1982).

A municipality may be estopped following erroneous acts of its officers from enforcing its zoning ordinances, as long as those officers act within the scope of their authority. West Hartford v. Rechel, supra. It is the burden of the person claiming the estoppel, however, to show that he exercised due diligence to ascertain the truth and that he not only lacked knowledge of the true state of things but had no convenient means of acquiring that knowledge. Dupuis v. Submarine Base Credit Union, Inc., 170 Conn. 344, 353, 365 A.2d 1093 (1976); Greenwich v. Kristoff, 2 Conn. App. 515, 522, 481 A.2d 77, cert. denied, 194 Conn. 807, 483 A.2d 275 (1984).

The certificate of zoning compliance issued by the ZEO specifically spelled out that the project “must Conform to Paragraph 61.6” and that the applicants acknowledged their “responsibility to conform to all the zoning regulations of the Town of Old Saybrook.” We find no unjustifiable inducement on the part of the ZEO.

The plaintiffs final claim involves the refusal of the trial court to permit evidence concerning other violations of this ordinance which were not enforced. Since the plaintiff has failed to comply with Practice Book § 3060F (c) (3), in that the claimed errors have not been properly briefed, we need not consider them.

There is no error.

In this opinion the other judges concurred.

       Section 61.1 of the zoning regulations of the town of Old Saybrook provides as follows: “General: The use of land, buildings and other structures, wherever located, shall be established and conducted so as to conform to the performance standards hereinafter specified. The performance standards establish certain nuisance factors which if committed or exceeded in the use of land, buildings and other structures will be detrimental to the use, enjoyment and value of other land, buildings and structures, will be detrimental to the public health, safety and welfare and will be contrary to the comprehensive plan of zoning. The Zoning Enforcement Officer is authorized to make surveys and take measurements to determine compliance. No APPLICATION FOR CERTIFICATE OF ZONING COMPLIANCE shall be approved by the Zoning Enforcement Officer and no CERTIFICATE OF ZONING COMPLIANCE shall be issued by him until he has made a determination that the proposed use of land, buildings and other structures will be established and conducted in accordance with the performance standards and with the standards stated in other relevant Town, State and Federal codes, ordinances or regulations, whichever is the more restrictive. The performance standards hereinafter specified shall be of continuing application.”

       Although the plaintiff also recites an issue concerning equal protection in its brief, it did not present any argument or authority in support of that claim. We therefore treat this issue as abandoned. Self-Service Sales Corporation v. Heinz, 1 Conn. App. 188, 190 n.3, 470 A.2d 701 (1984).


author: Spallone, J.

text:
    Albert Mendel and Son, Inc. v. Leonard E. Krogh, Commissioner of Agriculture
    (2814)
    Dupont, C.P.J., Hull and Sfallone, Js.
    Argued March 5—decision
    released May 21, 1985

      Kenneth N. Bedford, assistant attorney general, with whom, on the brief, was Joseph I. Lieberman, attorney general, for the appellant (defendant).

      Karen P. Blado, with whom, on the brief, was Thomas J. Shortell, for the appellee (plaintiff).
   Spallone, J.

The defendant appeals from a declaratory judgment in which the trial court ruled as to the evidence which could be introduced at a hearing to determine whether the plaintiff is qualified to be reissued a cattle dealer’s license.

In January, 1980, the defendant ordered the plaintiff to show cause why its cattle dealer’s license should not be revoked or suspended pursuant to General Statutes § 22-386 for importing cattle into Connecticut without a permit and without the cattle being properly tested and certified as free of disease. A hearing was scheduled for February 25,1980. The plaintiff waived the hearing and, on May 9,1980, entered into a stipulation and agreement with the defendant. Under the terms of the stipulation, the parties agreed that the plaintiffs license would be suspended for a one year period from January 7, 1980, and that upon the expiration of that period, the plaintiff, upon application, would be reissued a license if it met certain conditions.

On June 3, 1982, the plaintiff reapplied for a cattle dealer’s license. Prior to a hearing on the application, the plaintiff requested that the defendant issue declaratory rulings on several matters, including the effect of the stipulation on the evidence which could be admitted at the hearing. Specifically, the plaintiff requested that the defendant declare that all matters alleged to have occurred before January 7, 1980, the effective date of the suspension of its license, were settled by the stipulation and that evidence relating to such matters could not be presented at the hearing. On August 2, 1982, the defendant ruled that the stipulation did not preclude the presentation of evidence of such matters.

The plaintiff then sought a declaratory ruling from the Superior Court on the admissibility of such evidence. After reviewing the stipulation, the trial court found “that only those matters pertaining to the qualifications of the plaintiff which occurred since January 7, 1980, and those of like nature which occurred prior to that date but which were then not known to the Department of Agriculture may be considered by the Commissioner with respect to the plaintiff’s application. On an offer of evidence involving a matter alleged to have occurred prior to January 7,1980, it shall be the burden of the Department of Agriculture to prove a lack of knowledge of such matter on said date.”

On appeal, the defendant argues that the trial court erred in its interpretation of the stipulation. He maintains that the stipulation should be treated merely as a determination of the allegations set forth therein and that it should not be construed to limit in any way the evidence which may be introduced at the hearing on the plaintiff’s license. He further claims that the court erred in placing on him the burden of proving lack of knowledge of matters which occurred prior to January 7, 1980.

The duties of the defendant, as the head of an administrative agency, necessarily include the right to exercise discretion. Riley v. State Employees’ Retirement Commission, 178 Conn. 438, 442, 423 A.2d 87 (1979). “[T]he essence of such discretionary power is that the agency or commission may choose which of several permissive courses will be followed.” Id. In this case, the defendant entered into a stipulation with the plaintiff pursuant to General Statutes § 4-177 (d) which provides as follows: “Unless precluded by law, informal disposition may be made of any contested case by stipulation, agreed settlement, consent order, or default.”

The settlement of disputes by informal processes serves the public interest as an alternative to litigation. See United States v. Armour & Co., 402 U.S. 673, 681, 91 S. Ct. 1752, 29 L. Ed. 2d 256 (1971). Informal dispositions enable agencies to more efficiently allocate their limited resources and thereby maximize their capacity to serve the public. See Johnson Products Co. v. F. T. C., 549 F.2d 35, 39 (7th Cir. 1977). Procedures leading toward such disposition are themselves informal and are developed by the agencies themselves. See Action on Safety and Health v. F. T. C., 498 F.2d 757 (D.C. Cir. 1974); 4 Mezines, Stein & Gruff, Administrative Law § 33.01. When informal settlements are achieved they are considered binding; Winn-Dixie Stores, Inc. v. F. T. C., 377 F. Sup. 773 (M.D. Fla. 1974); and are strictly interpreted by the courts. 4 Mezines, Stein & Gruff, Administrative Law, supra.

“Consent decrees are entered into by parties to a case after careful negotiation has produced agreement on their precise terms. The parties waive their right to litigate the issues involved in the case and thus save themselves the time, expense, and inevitable risk of litigation. Naturally, the agreement reached normally embodies a compromise; in exchange for the saving of cost and elimination of risk, the parties each give up something they might have won had they proceeded with the litigation. Thus the decree itself cannot be said to have a purpose; rather the parties have purposes, generally opposed to each other, and the resultant decree embodies as much of those opposing purposes as the respective parties have the bargaining power and skill to achieve. For these reasons, the scope of a consent decree must be discerned within its four corners, and not by reference to what might satisfy the purposes of one of the parties to it.” (Footnote omitted. Emphasis in original.) United States v. Armour & Co., supra, 681-82.

In considering the scope of the settlement between the parties in this case, we are likewise bound by the four corners of the stipulation. In our review, we bear in mind that the stipulation is in fact a contract, and that the intention of the parties controls the construction of that contract. Hatcho Corporation v. Della Pietra, 195 Conn. 18, 20, 485 A.2d 1285 (1985). Their intention is determined from the language used. Sturman v. Socha, 191 Conn. 1, 10, 463 A.2d 527 (1983). Any concealed intent which either party may have harbored plays no part in this determination. Id. The words as written, moreover, must be accorded a fair and reasonable construction and their “common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract.” Id.

It is an accepted principle of contract law that a contract is construed as a whole, and all relevant provisions are considered together. Lar-Rob Bus Corporation v. Fairfield, 170 Conn. 397, 407, 365 A.2d 1086 (1976). Paragraph 6 (c) of the stipulation states that the plaintiff may be issued a license if it “is otherwise qualified to hold such license under Section 22-384 of the Connecticut General Statutes.” On that basis, the defendant maintains that the stipulation should not be construed to restrict the evidence which may be considered at the hearing. Paragraph 6 (c), however, must be read in light of paragraph 7, which states in clear and unambiguous language that the stipulation is in “full settlement of all matters concerning the Licensee within the knowledge of the Connecticut Department of Agriculture as of January 7, 1980.” Parol evidence to show that a different meaning was actually desired will not be admitted where the intent of the parties is so clearly expressed. Welch v. Arthur A. Fogarty, Inc., 157 Conn. 538, 547, 255 A.2d 627 (1969). Since parties generally do not insert meaningless provisions in their agreements, every provision must be given effect if reasonably possible. Hatcho Corporation v. Della Pietra, supra, 23.

Contractual intention is generally held to be a question of fact. See First Hartford Realty Corporation v. Ellis, 181 Conn. 25, 33, 434 A.2d 314 (1980); Lavigne v. Lavigne, 3 Conn. App. 423, 427, 488 A.2d 1290 (1985). As a consequence, the trial court’s conclusion as to such intent is subject to review on appeal under the limited standard of whether it is clearly erroneous. Lavigne v. Lavigne, supra. In view of the clear and unambiguous language of paragraph 7, we cannot conclude that the trial court’s ruling as to the scope of the stipulation was clearly erroneous.

As to the defendant’s remaining claim of error, we find that the trial court correctly placed the burden of proof of lack of knowledge of matters prior to January 7,1980, on the defendant. It is fundamental in our law that the party asserting a fact has the obligation of proving it. See, e.g., Fishel v. Motta, 76 Conn. 197, 56 A. 558 (1903). “[Wjhenever the existence of any fact is necessary in order that a party may make out his case or establish his defense, the burden is on such party to show the existence of such fact.” Holden & Daly, Connecticut Evidence § 53. This is generally so even when the fact to be proven is a negative one. McCormick, Evidence (2d Ed.) § 337.

The proper allocation of the burden of proof may be distilled to a question of policy and fairness based on experience in different situations. Rustad v. Great Northern Ry., 122 Minn. 453, 456, 142 N.W. 727 (1913); James & Hazard, Civ. Proc. (2d Ed.) § 7.8 n.1. A number of variables are considered in determining where the burden properly lies. One consideration is which party has readier access to knowledge about the fact in question. While this consideration is by no means controlling; James & Hazard, supra, § 7.8; in this case it is persuasive. Any investigation of the plaintiff prior to January 7, 1980, was certainly done by agents or employees of the department of agriculture. For the plaintiff, the task of showing what any such investigation revealed would be difficult, if not impossible. See United States v. Denver & R.G.R.R., 191 U.S. 84, 91-92, 24 S. Ct. 33, 48 L. Ed. 106 (1903). We thus conclude that the trial court properly placed upon the defendant the burden of proving matters of which, in all likelihood, it alone would be aware.

There is no error.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1981) § 22-386 provides: “For failure or refusal of a licensee to obey the provisions of this chapter, the commissioner may suspend or revoke the license held by such licensee. Whenever the commissioner is satisfied of the existence of any one or more reasons for revoking a license as provided for in this chapter, before revoking such license the department shall give written notice of a hearing to be had thereon to the licensee affected. Such notice shall be sent by registered or certified mail to the licensee at least ten days prior to the date set for the hearing at the department. On the day of the hearing the commissioner may hear the evidence presented by the licensee and any other witnesses, and the commissioner shall within a reasonable time thereafter render a decision. Any licensee aggrieved by the decision of the commissioner may appeal therefrom in accordance with the provisions of section 4-183, except venue for such appeal shall be in the judicial district of Hartford-New Britain. The following actions by the applicant or licensee shall constitute just cause for revoking or refusing a license: (1) The violation of state laws or official regulations governing instrastate or interstate movement of cattle or swine; (2) where there have been false or misleading statements with regard to the results of official diagnostic tests approved by the commissioner and the Agricultural Research Service of the United States department of agriculture for the diseases of bovine brucellosis or tuberculosis, vesicular exanthema of swine, foot and mouth disease, anaplasmosis and anthrax, or with regard to ownership; (3) the buying or receiving of cattle or swine, selling or exchanging, or soliciting resale, exchange, transport or transfer, of animals officially branded by the department of agriculture as being diseased, a quarantined animal, or animals from quarantined herds; provided this subsection shall not apply to cattle which have reacted to any offical test used for the detection of tuberculosis or brucellosis, or to cattle in a herd under quarantine for the presence of the diseases tuberculosis or brucellosis when such cattle are disposed of in conformity with state laws and regulations governing disposal of such cattle; (4) failure of the licensee to practice approved measures of sanitation of bams, stables, premises or vehicles used for stabling, holding or transporting of cattle or swine; (5) consistent or continual failure to keep records required by the commissioner or by law, or refusal to produce books, accounts or records of transactions in the carrying on of the business for which the license is granted, and (6) failure to comply with any provision of the general statutes or regulations thereunder relating to cattle or swine.”

       The plaintiff filed one previous application to reinstate its license which it withdrew on May 1,1983. That application has no bearing on this appeal.

       General Statutes (Rev. to 1981) § 4-176 provides: “Each agency may, in its discretion, issue declaratory rulings as to the applicability of any statutory provision or of any regulation or order of the agency, and each agency shall provide by regulation for the filing and prompt disposition of petitions seeking such rulings. If the agency fails to exercise its discretion to issue such a ruling, such failure shall be deemed a sufficient request by the plaintiff for the purposes of section 4-175. Rulings disposing of petitions have the same status as agency decisions or orders in contested cases.”

       The plaintiff sought the following rulings: “1. Evidence of any matter alleged to have occurred before the signing of the Stipulation and Agreement would have no probative value in the Commissioner’s determination, all such matters having been settled as per Paragraph 7 of the Stipulation and Agreement.
      “2. Since the Commissioner had the authority to revoke Mendel’s Cattle Dealer's License and did not revoke it, there is a presumption that Petitioner was qualified under the provisions of C.G.S. § 22-384 as of the date of signing of the Stipulation and Agreement, and, therefore, evidence relating to Mendel’s qualifications before said date shall not be presented or heard at the continued hearing.”
      At trial, the parties agreed that the sole question for the court to decide was whether evidence of matters that occurred before January 7, 1980, could be presented at the hearing.

       The portions of the stipulation which are central to this appeal are as follows:

        “6. Upon the expiration of the one-year suspension period agreed to herein, the Commissioner shall, upon application by the Licensee, issue a Cattle Dealer’s License to the Licensee, provided: (a) the Licensee, its officers, agents and employees have complied with the provisions of this Stipulation and Agreement; (b) the Licensee, its officers, agents and employees have complied with the Agriculture and Domestic Animal Statutes of the State of Connecticut and the regulations adopted thereunder during the period of suspension, and (c) the Licensee is otherwise qualified to hold such License pursuant to Section 22-384 of the General Statutes of Connecticut.
      “7. This Stipulation and Agreement is in full settlement of all matters concerning the Licensee within the knowledge of the Connecticut Department of Agriculture as of January 7, 1980.”
      The trial court stated in its memorandum of decision that the defendant made no claim that the plaintiff had not complied with sections (a) and (b) of paragraph 6 of the stipulation. The defendant has raised as an additional claim of error that the trial court erred in making that finding. Our review of the record and the transcript reveals that the defendant indeed made no claim as to the plaintiff’s compliance with sections (a) and (b) of paragraph 6. The trial court’s notation that no such claim had been made was, in our opinion, mere recognition of the fact that the sole question before it was whether the defendant was entitled to receive any evidence of matters which occurred before January 7,1980. See footnote 4, supra. We therefore see no reason to depart from our general rule that we will not consider on appeal issues which are not raised and decided in the trial court. Mazur v. Blum, 184 Conn. 116, 120, 441 A.2d 65 (1981).

       The allocation of the burden of proof is made on the basis of one or more of several variable factors. It is said that the burden properly rests upon the party who must establish the affirmative proposition, to ivhose case the fact in question is essential, who has the burden of pleading a fact, who has readier access to knowledge about the fact, or whose contention departs from what would be expected in the light of everyday experience. James & Hazard, Civ. Proc. (2d Ed.) "§ 7.8.


text:
    Clifford J. Heilig v. Linda B. LeQuire et al.
    (2245)
    Hull, Boeden and Daly, Js.
    Argued March 7—decision
    released May 21, 1985

      Richard C. Hannan, Jr., for the appellant (plaintiff).

      Sheila M. Press, with whom, on the brief, was Dominick J. Thomas, Jr., for the appellee (named defendant).
   Daly, J.

The plaintiff is seeking to enjoin the discharge of drainage water onto his land from adjacent land owned by the defendants. From the denial of that relief, the plaintiff has appealed.

The trial court found the following factual situation which does not appear to be disputed: In 1941, the plaintiff was the owner of a large tract of land in North Branford, which included 480 Village Street and lot No. 1 adjacent thereto. The plaintiff had a home built on 480 Village Street, which he occupied. In 1946, the plaintiff designed and installed a drainage system to carry water away from his house to and across lot No. 1, which is located to the west of the house. This system consisted of a four inch pipe which ran underground below 480 Village Street and halfway across lot No. 1, where it emerged and permitted the water to flow westward on the surface of lot No. 1. This system effectively solved the plaintiffs water problem.

In 1971, the plaintiff conveyed 480 Village Street to his son, while retaining the remainder of the property including lot No. 1. In 1977, the plaintiff was informed by the North Branford planning and zoning commission that the drainage pipe had to be removed before he could subdivide his land. The plaintiff then blocked the pipe, but the water still surfaced. The plaintiffs subsequent attempt to have his son pay to reroute the pipe over lot No. 1 failed. In January, 1978, the son sold 480 Village Street to the defendants. The plaintiff had no success in inveigling the defendants into paying for rerouting the drainage pipe.

In April, 1982, the plaintiff removed the drainage pipe located on lot No. 1 and plugged it up at the property line between lot No. 1 and 480 Village Street. The defendants have done nothing to interfere with the drainage system or the topography of their land. Water still accumulates on lot No. 1. The plaintiff claimed that this constituted a nuisance which reduced the value of his land. He sought injunctive relief and monetary damages.

The trial court concluded that the plaintiff failed to prove the nuisance element of unreasonable or unlawful use of land by the defendants, and further concluded that an easement by implication existed over lot No. 1. The plaintiff challenges the trial court’s conclusions.

“To establish a nuisance four elements must be proven: (1) the condition complained of had a natural tendency to create danger and inflict injury upon person or property; (2) the danger created was a continuing one; (3) the use of the land was unreasonable or unlawful; (4) the existence of the nuisance was the proximate cause of the plaintiffs’ injuries and damages.” Filisko v. Bridgeport Hydraulic Co., 176 Conn. 33, 35-36, 404 A.2d 889 (1978). The trial court found that the plaintiff had not sustained his burden of proof that the defendants’ use of their land was unreasonable or unlawful.

Whether any of the above-mentioned elements is present so that a nuisance can be said to exist is a question of fact for the trier. Kostyal v. Cass, 163 Conn. 92, 100, 302 A.2d 121 (1972). There was sufficient evidence from which the trial court could have determined that the defendants’ use of 480 Village Street was not unreasonable or unlawful. Among other facts are the former common ownership of both pieces of land by the plaintiff, the installation of the drainage system on both pieces by the plaintiff, and the defendants’ continued usage of the premises without interfering with the drainage system or changing the configuration of the landscape. Unless there was an error of law or a legal or logical inconsistency with the facts found, the conclusion of the trial court must stand. Johnson v. Fuller, 190 Conn. 552, 556, 461 A.2d 988 (1983).

Since this is dispositive of the matter, it is unnecessary to consider the question of the easement by implication.

There is no error.

In this opinion the other judges concurred.

       Although the property is in both the defendants’ names, apparently only the named defendant is participating in the appeal.


text:
    Mobilia, Inc. v. Johonor M. Santos et al.
    (2185)
    Hull, Spallone and Daly, Js.
    Argued March 13—decision
    released May 21, 1985

      Dominick S. Piacenza, for the appellants (defendants).

      Edward E. Moukawsher, for the appellee (plaintiff).
   Daly, J.

The plaintiff initiated this action in summary-process against the defendants for nonpayment of rent. From a judgment rendered in favor of the plaintiff, after the striking of the defendants’ special defenses and counterclaim, the defendants have taken this appeal.

The factual situation does not appear to be in dispute. The plaintiff entered into a written lease for one year with the named defendant for the rental of a lot in the plaintiff’s mobile home park for the named defendant’s mobile home. The lease commenced on August 1,1982, and provided for a monthly rent of $170. In January of 1983, the named defendant conveyed an interest in the mobile home to the defendant Joan Tufano. The defendants then submitted a rental payment of $140, rather than the required $170. On January 26,1983, the plaintiffs issued a notice to quit possession for nonpayment of rent of $170 due and payable on January 1, 1983.

The defendants filed an answer, two special defenses and a counterclaim. The first special defense alleged a retaliatory eviction. The second special defense disputed the amount of rent due, indicated that a complaint to the Connecticut real estate commission was pending and averred a substantial hardship to the defendants if they had to sell their mobile home. The counterclaim sought an injunction to prevent the plaintiff from proceeding against the defendants on the ground, inter alia, of discrimination in that the defendants are two unmarried and unrelated females.

The plaintiff filed a motion to strike, claiming (1) that the first special defense of retaliatory eviction was not available in a summary process action based on nonpayment of rent, (2) that the second special defense as pleaded was legally insufficient to invoke the court’s equitable powers, and (3) that the counterclaim should be stricken because it was not a proper pleading in a summary process action.

The trial court granted the motion to strike the special defenses and the counterclaim and, subsequent to a hearing, rendered judgment in favor of the plaintiff. The defendants have appealed, claiming that the trial court erred in granting the plaintiff’s motion to strike.

“The purpose and scope of a motion to strike are identical to those of a demurrer under the old rules of practice . . . .” Cavallo v. Derby Savings Bank, 188 Conn. 281, 283, 449 A.2d 986 (1982). Since this appeal is before us pursuant to a motion to strike, we must take the facts to be those alleged in the defendants’ special defenses and counterclaim, and must construe them in the manner most favorable to the pleader. Sheets v. Teddy’s Frosted Foods, Inc., 179 Conn. 471, 472, 427 A.2d 385 (1980).

There was no error in the trial court’s striking the first special defense since actions for nonpayment of rent are not deemed to be retaliatory. General Statutes § 47a-20a.

The second special defense requested equitable relief against forfeiture on the basis of hardship and the forced sale of their mobile home. The counterclaim sought an injunction to restrain the plaintiff from pursuing its summary process action for essentially the same reasons promulgated in the second special defense.

“A court may enjoin a forfeiture of a lease based on technical grounds ‘to relieve a party against forfeitures and penalties not occasioned by his wilful neglect, upon the principle that one having a legal right shall not be permitted to avail himself of it for the purpose of injustice or oppression.’ . . . Equity will intervene where ‘the delay has been slight, the loss to the lessor small, and when not to grant relief would result in such hardship to the tenant as to make it unconscionable to enforce literally’ the conditions of the lease.” Nicoli v. Frouge Corporation, 171 Conn. 245, 247, 368 A.2d 74 (1976). Here, the defendants wilfully withheld paying the monthly payment provided in the lease.

“It is elementary that a court of equity, even in the absence of fraud, accident or mistake may grant relief to prevent a forfeiture resulting from the breach of a covenant to pay rent upon payment or tender of all arrears of rent with interest.” Zitomer v. Palmer, 38 Conn. Sup. 341, 345, 446 A.2d 1084 (1982). No such tender has been pleaded by the defendants.

“There are no special elixirs which trigger the extraordinary remedies of equity. Each party seeking equitable relief in the summary process action is required to prove the necessity for invoking the powers of equity. The doctrine against forfeiture cannot be dilatorily invoked to eviscerate the statutory mandate of our summary process laws. Under circumstances, however, where the conscience is shocked or the forfeiture unconscionable, the doctrine against forfeiture should be an available shield to the tenant.” Zitomer v. Palmer, supra, 346. The deliberate failure on the part of the defendants to tender the agreed monthly rent, however, would not appear to allow the triggering of equitable relief or entitle them to an injunction. The trial court therefore did not err in striking the defendant’s second special defense and counterclaim.

There is no error.

In this opinion the other judges concurred.


text:
    Joseph A. Fortini v. New England Log Homes, Inc., et al.
    (2958)
    Dupont, C.P.J., Borden and Stoughton, Js.
    Argued March 8—decision
    released May 21, 1985

      Jonathan J. Einhorn, for the appellant (plaintiff).

      Anthony P. DeLio, for the appellees (defendants).
   Stoughton, J.

The plaintiff, Joseph A. Fortini, brought this action in three counts against a corporation by which he had formerly been employed and against its president. He alleged that he had organized a new business, Country Log Homes, Inc., (Country Log) and that the defendants had brought suit against, inter alia, Country Log and him in the United States District Court. In the first count, he alleged that the allegations of the defendants’ lawsuit were false, made knowingly and recklessly, and caused him economic injury. In the second count, the plaintiff alleged interference with contractual relationships and expectancies, economic relations and expectancies, and business relations and expectancies. The third count alleged unfair competition and unfair trade practices in contravention of General Statutes §§ 42-110a through 42-110q.

The defendants moved to strike the complaint upon two grounds. The first ground was that the plaintiff’s claim was in reality a claim that the federal lawsuit was a vexatious suit, that the plaintiff had not alleged a successful termination of that lawsuit and that he had, thus, failed to state a cause of action. The second ground was that the harm alleged by the plaintiff was harm of a business or commercial nature to Country Log, not harm to the plaintiff. The defendants claimed that Country Log was an indispensable party in a suit by a stockholder but had not been joined as a party. The defendants further claimed that the plaintiff had no standing to bring the action for Country Log and had not made out a cause of action for harm to himself personally.

The court granted the motion to strike upon the ground that the plaintiff had failed to set out a legally sufficient individual or derivative cause of action, having failed to allege either a loss separate and distinct from that of the corporation or that the corporation “will not or cannot sue” for its own protection. The plaintiff thereafter pleaded over, simply adding the following paragraph to his complaint: “9. The plaintiff has sustained a loss separate and distinct from that of the corporation Country Log Homes, which corporation has not instituted similar action to protect and vindicate this plaintiff.” The defendants moved to strike the substituted complaint upon the ground that the added paragraph merely stated a conclusion. No additional facts having been alleged, the court granted the motion. After the plaintiff failed to plead over, the court rendered judgment for the defendants. The plaintiff has appealed from that judgment.

Where an appeal is taken from a judgment following the granting of a motion to strike, we take the facts to be those as alleged in the substituted complaint, construed in a manner most favorable to the pleader. For purposes of appeal, all well pleaded facts and those facts necessarily implied and fairly provable from the allegations are taken as admitted. Amodio v. Cunningham, 182 Conn. 80, 82-83, 438 A.2d 6 (1980). A motion to strike does not admit legal conclusions. Verdon v. Transamerica Ins. Co., 187 Conn. 363, 365, 446 A.2d 3 (1982). Conclusions of law, absent sufficient alleged facts to support them, are subject to a motion to strike. The trial court may not seek beyond the complaint for facts not alleged, or necessarily implied, and this court will not. Cavallo v. Derby Savings Bank, 188 Conn. 281, 285-86, 449 A.2d 986 (1982).

The plaintiff specifically alleged in the first count of his complaint that between 1975 and 1977 he was employed as plant manager by the defendant New England Log Homes, Inc. (New England Log), and that on or about December 17, 1977, he was terminated from its employ. On or about June 1, 1978, he organized Country Log, of which he is a stockholder and officer. The new corporation is engaged in manufacturing and building log homes. He is one of several stockholders and officers of it. Prior to the present action, New England Log, by its president, instituted its federal civil action which is still pending. That lawsuit seeks damages from the plaintiff for misappropriation and use of the trade secrets of New England Log, patent infringement and unfair competition. The allegations in the complaint filed in that lawsuit were also made to employees and customers and potential customers of Fortini and were fraudulent, false, made knowingly or recklessly with intent to cause economic injury to him.

“[I]t is axiomatic that a claim of injury, the basis of which is a wrong to the corporation, must be brought in a derivative suit, with the plaintiff proceeding ‘secondarily,’ deriving his rights from the corporation which is alleged to have been wronged.” Yanow v. Teal Industries, Inc., 178 Conn. 262, 281, 422 A.2d 311 (1979). Apparently recognizing this, the plaintiff has not briefed his claim stated in the first count and that claim is therefore deemed to be abandoned. Jones v. Civil Service Commission, 175 Conn. 504, 505, 400 A.2d 721 (1978).

As to his claim in the second count, which he characterizes as a claim of tortious interference with his business contracts and expectations, the plaintiff appears to concede that he has not alleged facts which would support such a claim. He argues that he was stymied by the defendants' refusal to allow its witnesses to attend depositions and by their immediate motion to strike. He avers that he refused to sign a noncompetition agreement with the defendant corporation, that the defendants alleged patent infringement in their federal lawsuit against his new company, and that in consequence that company terminated his employment. None of these allegations appears in the complaint or are fairly implied therefrom. In fact, the plaintiff alleges that he is a shareholder and an officer of Country Log. He complains that the defendants did not move for a more definite statement, but instead moved to strike the complaint.

It is up to the plaintiff to plead a cause of action. As the Supreme Court has said in another context, the appeal process should not be utilized to seek to correct pleading deficiencies which the party complaining clearly could have remedied under our rules in the trial court. Fuessenich v. DiNardo, 195 Conn. 144, 149, 487 A.2d 514 (1985). The plaintiff failed to allege any interference by the defendants with his personal business contracts and expectations.

The plaintiff's claim in his third count is that the defendants, by their conduct, violated the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a through 42-110q. He points out that an action which might not rise to the level of tortious conduct might still be actionable under CUTPA, citing Sportsmen’s Boating Corporation v. Hensley, 192 Conn. 747, 474 A.2d 780 (1984). While a private cause of action may be maintained under CUTPA, it must demonstrate some nexus with the public interest and not involve a purely private dispute. Ivey, Barnum & O’Mara v. Indian Harbor Properties, Inc., 190 Conn. 528, 537, 461 A.2d 1369 (1983). A claim under CUTPA must be cloaked with the necessary public interest. Sportsmen’s Boating Corporation v. Hensley, supra, 756-57. Even had the plaintiff alleged facts sufficient to support a cause of action, his action would have been a purely private one.

There is no error.

In this opinion the other judges concurred.

       We note that the public interest requirement of a private action under CUTPA has been eliminated. Public Acts 1984, No. 84-468, §§ 2, 4 (effective June 8, 1984); General Statutes (Rev. to 1985) §§ 42-110g, 42-110m. This change, which is not retroactive, does not affect this case.


text:
    Progressive Casualty Insurance Company v. Marion Lawrence DiGangi, Administratrix (Estate of James Lawrence) et al.
    (3129)
    Hull, Spallone and Daly, Js.
    Argued March 13
    decision released May 21, 1985

      Jon S. Berk, with whom, on the brief, was Thomas P. Barrett, for the appellant (plaintiff).

      Thomas B. Wilson, for the appellee (named defendant).
   Spallone, J.

The plaintiff, Progressive Casualty Insurance Company (Progressive), insured the decedent, James Lawrence, under a motorcycle insurance policy which provided uninsured motorist coverage. Progressive brought this action for a declaratory judgment as to whether, inter alia, its policy with the decedent provided underinsurance coverage. The defendant Marion Lawrence DiGangi, administratrix of the decedent’s estate, moved to dismiss the action for lack of subject matter jurisdiction on the basis that the issues raised must be resolved by arbitration pursuant to General Statutes § 38-175C. The trial court granted the motion, and Progressive appeals from the judgment rendered upon the dismissal. We find no error, but on a ground different from that used by the trial court. See Neri v. Powers, 3 Conn. App. 531, 490 A.2d 528 (1985).

“Subject matter jurisdiction is the power of the court to hear and determine cases of the general class to which the proceedings in question belong. Henry F. Raab Connecticut, Inc. v. J. W. Fisher Co., 183 Conn. 108, 112, 438 A.2d 834 (1981).” England v. Coventry, 183 Conn. 362, 364, 439 A.2d 372 (1981). A court does not truly lack subject matter jurisdiction if it is competent to entertain the action before it. Robinson v. ITT Continental Baking Co., 2 Conn. App. 308, 311, 478 A.2d 265 (1984).

When all parties having an interest in the subject matter of the complaint are parties or have been given reasonable notice of an action pursuant to General Statutes § 52-29, the Superior Court has subject matter jurisdiction to declare legal rights “whether or not further relief is or could be claimed.” England v. Coventry, supra. Subject matter jurisdiction over actions for declaratory judgment exists despite the availability or adequacy of other legal remedies. Id.; Connecticut Life & Health Ins. Guaranty Assn. v. Jackson, 173 Conn. 352, 359-60, 377 A.2d 1099 (1977). We therefore conclude that the trial court erred in dismissing this action for lack of subject matter jurisdiction.

Our further review of this case, however, reveals that the court was nonetheless correct in declining to entertain this action. The motion to dismiss filed by DiGangi was used to perform, in effect, the function of a motion to strike. Such a motion is the proper vehicle by which to question whether a court, despite its jurisdiction over the subject matter, can properly grant declaratory relief. England v. Coventry, supra; Connecticut Life & Health Guaranty Assn. v. Jackson, supra, 360. The record does not indicate that the impropriety of the use of a motion to dismiss in this manner was ever raised in the trial court. It was not made here. We shall therefore consider the case “as it was presented by the parties, overlooking the foregoing procedural shortcomings and treating the motion to dismiss as sustainable under the same test as would have been applicable” if it had been a motion to strike. Glens Falls Ins. Co. v. Somers, 146 Conn. 708, 713, 156 A.2d 146 (1959).

“Section 390 (c) of the Practice Book allows the trial court wide discretion to render a declaratory judgment unless another form of action clearly affords a speedy remedy as effective, convenient, appropriate and complete. Connecticut Savings Bank v. First National Bark & Trust Co., [133 Conn. 403, 410, 51 A.2d 907 (1947)]. See Aaron v. Conservation Commission, 178 Conn. 173, 179, 422 A.2d 290 (1979). Therefore a successful motion to strike an action for a declaratory judgment upon the ground of available alternative means of redress . . . must show that the court could not in the exercise of sound discretion permit the action to proceed. Connecticut Savings Bank v. First National Bank & Trust Co., supra, 410-11.” (Footnote added.) England v. Coventry, supra, 365.

In reviewing the granting of a motion to strike, we take the facts alleged in the complaint and construe them in a manner most favorable to the pleader. Amodio v. Cunningham, 182 Conn. 80, 82, 438 A.2d 6 (1980); Sheiman v. Lafayette Bark & Trust Co., 4 Conn. App. 39, 42, 492 A.2d 219 (1985). If facts could necessarily be implied and fairly proved under the allegations which would support a cause of action or a defense, the motion to strike must fail. See Schmidt v. Yardney Electric Corporation, 4 Conn. App. 69, 492 A.2d 512 (1985).

The complaint in this case alleges that Progressive maintained a policy of motorcycle insurance which provided the decedent with $20,000 in uninsured motorist coverage; that its policy with the decedent did not provide underinsured motorist benefits; that the defendant The Criterion Insurance Company (Criterion) maintained a policy of automobile insurance with the decedent which provided $20,000 in underinsured coverage; and that on April 11, 1980, the decedent was killed, while riding his motorcycle, in an accident with Thomas Yorz. It further alleges that Yorz was covered by a liablility policy with a $20,000 limit; that Yorz’s insurer paid the decedent’s estate $20,000; and that the decedent’s estate submitted claims for underinsured motorist benefits with both Progressive and Criterion. By way of relief, Progressive seeks a declaratory judgment determining, first, whether under its policy the decedent’s estate is entitled to underinsured motorist benefits and, second, in the event that the estate is entitled to such benefits, whether its policy or Criterion’s is primary.

Pursuant to General Statutes § 38-175c, automobile insurance policies issued on or after October 1, 1971, which contain a provision for binding arbitration, must provide that the final determination of insurance coverage will be by arbitration. The intent of that statute “is to remove from the court and to transfer to the arbitration panel the function of determining, in the first instance, all issues as to coverage under automobile liability insurance policies containing uninsured motorist clauses providing for arbitration.” Oliva v. Aetna Casualty & Surety Co., 181 Conn. 37, 42, 434 A.2d 304 (1980); American Motorists Ins. Co. v. Brookman, 1 Conn. App. 219, 220 n.3, 470 A.2d 253, cert. denied, 193 Conn. 801, 473 A.2d 1226 (1984). Progressive’s policy, which insured the decedent as of April 11, 1980, contained a binding arbitration provision. Therefore, if the issues Progressive seeks to resolve involve coverage under that policy, then those issues must be arbitrated.

The first question which Progressive has raised for determination, whether underinsured motorist benefits are afforded under its policy with the decedent, is clearly one of coverage. Its second question hinges upon the resolution of the first. Both questions are integrally related to insurance coverage and no facts have been alleged in the complaint which set forth any reason which would support the determination of those questions by declaratory judgment rather than by arbitration. See Hartford Accident & Indemnity Co. v. Williamson, 153 Conn. 345, 350, 216 A.2d 635 (1966). In view of the clear mandate of General Statutes § 38-175c, we find that the trial court properly refused, in the reasonable exercise of its discretion, to entertain this action.

“[Sjince the plaintiff did not complain of the manner in which the challenge was raised and since both parties appear to have thoroughly understood the issues presented on appeal, we conclude no purpose would be served by returning the case to the Superior Court for further pleading.” Connecticut Life & Health Ins. Guaranty Assn. v. Jackson, supra, 360; cf. Baskin’s Appeal from Probate, 194 Conn. 635, 640-41, 484 A.2d 934 (1984).

There is no error.

In this opinion the other judges concurred.

       General Statutes § 38-175c (a) (1) provides in pertinent part: “Every such policy issued on or after October 1,1971, which contains a provision for binding arbitration shall include a provision for final determination of insurance coverage in such arbitration proceeding.”

       General Statutes § 52-29 provides: “(a) The superior court in any action or proceeding may declare rights and other legal relations on request for such a declaration, whether or not further relief is or could be claimed. The declaration shall have the force of a final judgment.
      “(b) The judges of the superior court may make such orders and rules as they may deem necessary or advisable to carry into effect the provisions of this section.”

       Practice Book § 390 provides: ‘The court will not render declaratory judgments upon the complaint of any person:
      “(a) unless he has an interest, legal or equitable, by reason of danger pf loss or of uncertainty as to his rights or other jural relations; or
      “(b) unless there is an actual bona fide and substantial question or issue in dispute or substantial uncertainty of legal relations which requires settlement between the parties; or
      “(c) where the court shall be of the opinion that the parties should be left to seek redress by some other form of procedure; or
      “(d) unless all persons having an interest in the subject matter of the complaint are parties to the action or have reasonable notice thereof.”


author: Hendel, J.

text:
    Anthony Henderson v. Department of Motor Vehicles of the State of Connecticut
    (2146)
    Borden, Daly and Hendel, Js.
    Submitted on briefs March 15
    decision released May 28, 1985

      Ernest F. Teitell filed a brief for the appellant (plaintiff).

      Joseph I. Lieberman, attorney general, and John F. Gill, assistant attorney general, filed a brief for the appellee (defendant).
   Hendel, J.

The adjudications unit of the defendant department of motor vehicles, after a hearing pursuant to General Statutes § 14-111 (c), found that the plaintiff caused or contributed to the death of Stanley Rogers in a motor vehicle accident and ordered that the plaintiffs motor vehicle operator’s license be suspended for a period of eighteen months. The plaintiff appealed from that decision to the trial court, which dismissed the appeal. From the judgment rendered thereon, the plaintiff appealed.*

The plaintiff claims that the trial court erred in holding that under General Statutes § 4-181, which prohibits an adjudicator from engaging in certain ex parte communications in connection with any issue of fact in a contested case, a showing of prejudice to the rights of the plaintiff is required in order to set aside the adjudicator’s decision. We find no error.

As found by the trial court, the administrative record revealed the following facts: The hearing in this matter was held before the adjudicator in two sessions. Before the start of the first session, the adjudicator had an ex parte communication lasting about five minutes with Trooper Thomas A. Brown, the officer who investigated the accident. The adjudicator inquired as to the identity of the operator of the vehicle involved and looked at photographs. The plaintiffs counsel apparently was aware that a conference of some sort was taking place between the adjudicator and Brown, but at that time made no inquiry as to its nature.

Brown testified at the first session and his full report, including at least thirteen photographs, was admitted in evidence. At the beginning of his cross-examination of Brown, the plaintiff inquired about the ex parte conference with the adjudicator, but made no motion for disqualification of the adjudicator or to abort the hearing.

The second session of the hearing was held three months after the first session. At the second session, the plaintiff called two troopers to testify. After the testimony was completed, the plaintiff moved for a dismissal, claiming that the adjudicator violated General Statutes § 4-181 by having the ex parte conversation with Brown. The adjudicator denied the motion.

The plaintiff appealed to the trial court pursuant to General Statutes § 4-183, which is part of the Uniform Administrative Procedure Act (UAPA). After holding that a showing of prejudice to the plaintiffs rights is required upon noncompliance with § 4-181, the trial court found that there had been no showing that the ex parte communication between the adjudicator and Brown in any way caused injury to the plaintiff and that the action of the adjudicator was a “mere technical violation of Section 4-181.” The trial court thereupon dismissed the appeal.

General Statutes § 4-183 (g) provides, in part, that the court may reverse or modify the decision of an agency under the UAPA “if substantial rights of the appellant have been prejudiced because the administrative . . . decisions are: (1) In violation of constitutional or statutory provisions . . . .” The plaintiff claims that any violation of the prohibitions of General Statutes § 4-181 against ex parte communications abridges the plaintiff’s right to a fair and impartial hearing and that no showing of prejudice to his rights is required in order for him to be entitled to relief.

We have found no Connecticut case discussing the effect of improper ex parte communications during an agency proceeding. Other jurisdictions which have considered the question have held, however, that a showing of prejudice to the plaintiff’s rights is required before an agency’s decision may be vacated and a new hearing ordered.

In Seebach v. Public Service Commission, 97 Wis. 2d 712, 721, 295 N.W.2d 753 (1980), the Wisconsin Court of Appeals said “that material error occurs when a party not notified of an ex parte communication is prejudiced by the inability to rebut facts presented in the communication and where improper influence upon the decision-making appears with reasonable certainty.” (Emphasis added.) The court found that the petitioners had not met their burden of proof to demonstrate that receipt of the improper ex parte communication prejudiced them to a material degree.

The United States Court of Appeals for the District of Columbia Circuit, in PATCO v. Federal Labor Relations Authority, 685 F.2d 547 (D.C. Cir. 1982), extensively reviewed the effect of various ex parte communications between interested persons and members of the federal labor relations authority, which ordered revocation of the exclusive recognition status of the plaintiff Professional Air Traffic Controllers Organization. The court summarized the standard to be applied in cases of ex parte communications as follows: “[Ijmproper ex parte communications, even when undisclosed during agency proceedings, do not necessarily void an agency decision. Rather, agency proceedings that have been blemished by ex parte communications have been held to be voidable. . . . In enforcing this standard, a court must consider whether, as a result of improper ex parte communications, the agency’s decisionmaking process was irrevocably tainted so as to make the ultimate judgment of the agency unfair, either to an innocent party or to the public interest that the agency was obliged to protect. . . . Since the principal concerns of the court are the integrity of the process and the fairness of the result, mechanical rules have little place in a judicial decision whether to vacate a voidable agency proceeding. Instead, any such decision must of necessity be an exercise of equitable discretion.” (Citations and footnotes omitted.) (Emphasis in original.) Id., 564-65. The court agreed with the findings made at an evidentiary hearing that the communications at issue had no effect on the ultimate decision of the authority.

We are persuaded by the reasoning of these cases. We hold that in order to be entitled to relief, a plaintiff must show prejudice to his rights resulting from an ex parte communication which is in violation of General Statutes § 4-181. This conclusion is consistent with Connecticut decisions arising out of other administrative agency hearings, which require that substantial prejudice be shown before invalidating the agencies’ decisions due to violations of the UAPA’s provisions. See Connecticut Natural Gas Corporation v. PUCA, 183 Conn. 128, 139, 439 A.2d 282 (1981); Lawrence v. Kozlowski, 171 Conn. 705, 714, 372 A.2d 110 (1976), cert. denied, 431 U.S. 969, 97 S. Ct. 2930, 53 L. Ed. 2d 1066 (1977).

In the present case, the trial court specifically found that the improper ex parte communication between the adjudicator and the trooper did not in any way cause injury to the plaintiff, and that the result reached by the adjudicator did not impinge upon the integrity of the administrative process and was fair. There is more than adequate basis in the record to support these findings.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 14-111 (c) provides: “The commissioner shall not suspend the license of any operator concerned in any motor vehicle accident resulting in the death of any person solely because such death has occurred, unless the facts as ascertained by the commissioner, after a hearing, indicate responsibility on the part of such operator for such accident, and if, after such hearing, the commissioner finds that such operator has caused or contributed to such death through the violation of any provision of this chapter or of chapter 248 or through negligence or carelessness, such suspension shall be for not less than one year. A motor vehicle parked in a manner permitted by law shall not be deemed to be concerned in such accident.”

       This appeal was originally filed in the Appellate Session of the Superior Court. General Statutes § 51-197a (c).

       General Statutes § 4-181 provides: “Unless required for the disposition of ex parte matters authorized by law, members or employees of an agency assigned to render a decision or to make findings of fact and conclusions of law in a contested case shall not communicate, directly or indirectly, in connection with any issue of fact, with any person or party, nor, in connection with any issue of law, with any party or his representative, except upon notice and opportunity for all parties to participate. An agency member may communicate with other members of the agency, and may have the aid and advice of one or more personal assistants.”


author: Kelly, J.

text:
    Joyce Buonanno v. Lawrence J. Merly et al.
    (2504)
    Dupont, C.P.J., Spallone and Kelly, Js.
    Submitted on briefs March 29
    decision released May 28, 1985

      Thomas K. Jackson, deputy city attorney, and Barbara Brazzel-Massaro, assistant city attorney, filed a brief for the appellants (defendants).

      Thomas W. Bucci filed a brief for the appellee (plaintiff).
   Kelly, J.

This is an appeal by the defendants, members of the Bridgeport civil service commission, from an order of the trial court compelling the defendants to declare the plaintiff eligible to take a promotional examination.

The plaintiff had been employed by the city of Bridgeport in the permanent classification of typist I from April 29,1963, until October 3,1972, at which time she voluntarily left her employment. She returned to work in the same classification on August 30, 1981, and so remained at least until August 17,1983, the date of the judgment being appealed. On December 2, 1982, the civil service commission announced a promotional examination for the position of typist II, open only to those employees of the city who had “occupied with tenure of office a position in the clerical service for not less than one year as of July 6, 1982.”

Section 9 of Bridgeport’s city charter states in part that promotional tests shall not be available to those who have “served less than one year in a lower grade.” The defendants urge that we interpret this provision to require that the one year of service be the one year immediately preceding the eligibility date and that such service be continuous and uninterrupted. That requirement is not expressed, however, in the charter language.

A municipal charter is a legislative enactment and in its interpretation the rules of statutory construction are ordinarily applied. Arminio v. Butler, 183 Conn. 211, 217, 440 A.2d 757 (1981). The intention of the legislative body is found in the words employed in the charter provisions, and these words are given their plain and obvious meaning. Id.; see Kusterer v. Sheehy, 2 Conn. App. 712, 714, 483 A.2d 1105 (1984). Where the language used is unambiguous, “a court cannot arbitrarily add to or subtract from the words employed.” Arminio v. Butler, supra, 213, quoting 2 McQuillin, Municipal Corporations (3d Ed. Rev.) § 9.22.

We conclude that the trial court correctly held that the plaintiff had occupied the position in question for not less than one year as of July 6, 1982.

There is no error.

In this opinion the other judges concurred.


text:
    Stanley V. Tucker v. Paul B. Crikelair et al.
    (3353)
    Hull, Borden and Daly, Js.
    Argued April 2
    decision released May 28, 1985

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

      Maureen Cox, with whom, on the brief, was John C. Bullock, for the appellee (defendant Robert R. Anderson).
   Daly, J.

The defendant Robert R. Anderson moved for summary judgment on the ground that this action is barred by a final judgment rendered with prejudice dismissing the same claims in the United States District Court for the Central District of California. From the granting of the summary judgment, the plaintiff has appealed.

The District Court ruled that the plaintiffs claims were subject to the laws of California, and were ordered dismissed with prejudice as barred by the applicable statutes of limitations. The plaintiff did not appeal from that ruling.

The sole issue on appeal is whether that judgment is res judicata. The plaintiff claims it is not entitled to that status because it was not rendered on the merits.

The Second Circuit Court of Appeals, in PRC Harris, Inc. v. Boeing Co., 700 F.2d 894 (2d Cir. 1983), held that the dismissal of an action in the United States District Court for the District of Washington on the basis that it was time-barred was an adjudication on the merits so as to preclude, by res judicata, relitigation of the same claim in a subsequent action in a New York District Court. The court stated that “[t]he longstanding rule in this Circuit ... is that a dismissal for failure to comply with the statute of limitations will operate as an adjudication on the merits, unless it is specifically stated to be without prejudice.” Id., 896. The dismissal of the plaintiffs prior suit was specifically stated to be with prejudice.

Our Supreme Court, in Barber v. International Co., 74 Conn. 652, 656, 51 A. 857 (1902), stated that “[a] judgment of the Circuit Court of the United States for the southern district of California, stands in respect to its proof and also to its essential nature, in any court of Connecticut, on the same footing as if it had been rendered by another court of this State.” It is settled law that “a judgment in a former action between the same parties and upon the same cause of action is conclusive upon the parties to a subsequent action as to every question which was or might have been presented or determined in the former action.” Lechner v. Holmberg, 165 Conn. 152, 155-56, 328 A.2d 701 (1973), quoting State ex rel. Campo v. Osborn, 126 Conn. 214, 218, 10 A.2d 687 (1940).

It is clear, therefore, that the requirements of res judicata have been satisfied.

There is no error.

In this opinion the other judges concurred.

       Anderson is the sole remaining defendant. This action was dismissed for lack of personal jurisdiction as to all other defendants.

       The action alleged malicious prosecution and violation of the plaintiff’s constitutional rights for his incarceration in Ventura, California in 1969 for contempt for failure to pay child support.

        Anderson v. Tucker, United States District Court, Central District of California, No. CV 79-3367-RJK (November 9, 1979).