author: Per Curiam.

text:
    The Balf Company v. Spera Construction Company, Inc., et al.
    (14492)
    Peters, C. J., Callahan, Glass, Borden and Berdon, Js.
    Argued April 28
    decision released May 26, 1992

      Thomas W. Witherington, in support of the motion.

      James J. Mercier, in opposition to the motion.
   Per Curiam.

The sole issue in this motion to dismiss an appeal is whether a trial court has rendered a final judgment when it has granted a motion for summary judgment that establishes liability for the principal amount claimed by the plaintiff but has reserved a ruling on a claim for prejudgment interest. The plaintiff, The Balf Company, a subcontractor, brought an action against the defendants Spera Construction Company, Inc., a general contractor, and Insurance Company of North America (INA), the surety under a performance bond, to recover for labor and materials furnished on a construction project in Bloomfield. The plaintiff successfully moved for summary judgment against both defendants. With respect to the plaintiffs claim against INA, however, the trial court, Wagner, J., granted the summary judgment motion only in part. Although the court concluded that there was no factual dispute about the plaintiffs right to recover the principal amount from INA, it determined that the plaintiffs alleged entitlement to prejudgment interest from INA required a further factual inquiry. INA appealed to the Appellate Court from the summary judgment rendered against it, and we transferred its appeal here in accordance with Practice Book § 4023. The plaintiff has moved this court to dismiss INA’s appeal. We conclude that the motion must be granted.

The parties do not dispute the proposition that appeals to the Appellate Court or to this court must ordinarily await the rendering of a final judgment in the trial court. General Statutes §§ 51-197a, 52-263; Practice Book § 4000; Stroiney v. Crescent Lake Tax District, 197 Conn. 82, 84, 495 A.2d 1063 (1985). They do not challenge the well established rule that a summary judgment rendered upon the issue of liability only, without deciding damages, is not a final judgment from which an appeal lies. Stroiney v. Crescent Lake Tax District, supra; Pinnix v. LaMorte, 182 Conn. 342, 343, 438 A.2d 102 (1980). Their disagreement centers upon the implication of Paranteau v. DeVita, 208 Conn. 515, 544 A.2d 634 (1988), in which this court concluded that the trial court’s determination of liability and damages is a final judgment, for purposes of appeal, even though a supplemental postjudgment claim for statutory attorney’s fees has not yet been resolved.

In Paranteau the plaintiff filed a claim against the defendant alleging, inter alia, a violation of the Connecticut Unfair Trade Practices Act (CUTPA). General Statutes §§ 42-110a through 42-110q. The plaintiff prevailed on this claim at trial and was awarded damages accordingly. Thereafter, the trial court ordered a supplemental hearing to determine the amount of attorney’s fees to which the plaintiff was entitled under § 42-1 lOg (d). The defendant filed an appeal in the Appellate Court, after the rendition of a judgment on the attorney’s fee, in which he sought to challenge the merits of the judgment on the CUTPA claim. The timeliness of this appeal depended upon whether there had been a final, appealable judgment in advance of the resolution of the attorney’s fee issue. This court held that “a judgment on the merits is final for purposes of appeal even though the recoverability or amount of attorney’s fees for the litigation remains to be determined.” Id., 523. We therefore agreed with the Appellate Court that the defendant’s appeal of the judgment on the merits was properly dismissed because it had been filed too late. Id.

The question raised by the present motion is whether the rule of Paranteau should be extended to include a supplemental determination of prejudgment interest. The plaintiff contends that Paranteau is distinguishable because an award of attorney’s fees serves a different function than an award of prejudgment interest. The recovery of attorney’s fees permits a plaintiff to defray the costs of litigation, while the recovery of prejudgment interest compensates the plaintiff for the loss suffered by INA’s unjustified delay in paying funds to which the plaintiff was entitled. INA maintains, to the contrary, that Paranteau applies to a supplemental claim for prejudgment interest as well as to attorney’s fees because we adopted a bright-line rule in that case requiring an immediate appeal after a judgment on the merits regardless of the nature of supplemental postjudgment adjudications. INA reminds us in particular that we held in Paranteau that “the timeliness of an appeal should [not] be based upon retrospective, technical considerations of whether a particular supplemental post-judgment claim for attorney’s fees was collateral to, or an integral part of, the judgment on the merits.” Id.

The rule we articulated in Paranteau relied on a similar holding by the United States Supreme Court in Budinich v. Becton Dickinson & Co., 486 U.S. 196, 108 S. Ct. 1717, 100 L. Ed. 2d 178 (1988). That court revisited the subject in Osterneck v. Ernst & Whinney, 489 U.S. 169, 109 S. Ct. 987, 103 L. Ed. 2d 146 (1989). While the United States Supreme Court had held in Budinich v. Becton Dickinson & Co., supra, 202, that a request for attorney’s fees was not part of the merits of the underlying action, and hence did not postpone the finality of a judgment on the merits, the court in Osterneck came to a different conclusion with respect to a postjudgment motion for discretionary prejudgment interest. The court proffered three grounds for its conclusion. First, “unlike attorney’s fees, which at common law were regarded as an element of costs and therefore not part of the merits judgment . . . prejudgment interest traditionally has been considered part of the compensation due [the] plaintiff. Second, unlike a request for attorney’s fees or a motion for costs, a motion for discretionary prejudgment interest does not ‘rais[e] issues wholly collateral to the judgment in the main cause of action’ . . . nor does it require an inquiry wholly ‘separate from the decision on the merits’ .... In deciding if and how much prejudgment interest should be granted, a district court must examine—or in the case of a postjudgment motion, reexamine—matters encompassed within the merits of the underlying action.” (Citations omitted.) Osterneck v. Ernst & Whinney, supra, 175-76. Third, the conclusion that a postjudgment motion for discretionary prejudgment interest postpones the finality of a judgment on the merits “helps further the important goal of avoiding piecemeal appellate review of judgments.” Id., 177.

The underlying reasoning of Osterneek is persuasive even though the United States Supreme Court was applying the Federal Rules of Civil Procedure, which are not identical with the statutes and rules governing appeals as a matter of state law. In this case, the trial court, as in Osterneek, ordered a hearing for the purpose of adjudicating a discretionary award of prejudgment interest. The plaintiff’s right to such a recovery is part of its claim to be made whole. Whether it succeeds will depend upon an assessment of the underlying merits of the transaction between the parties. An appeal after a resolution of all the issues will afford an appellate court a better opportunity to review in its entirety the alleged “wrongfulness of the defendant’s conduct and the plaintiffs full damages, as well as other matters of equity bearing on the merits of the litigation.” Id., 177. INA’s day in appellate court has not been lost; it has only been postponed.

The motion to dismiss INA’s appeal is granted.

       INA’s contention that Practice Book § 4002 (b) on its face authorizes its appeal does not warrant extended discussion. That section includes, within the category of a final judgment, the granting of a summary judgment “on an entire complaint.” The pivotal issue in this case is whether summary judgment has been rendered “on an entire complaint” or whether the trial court has rendered only a partial summary judgment.

       These cases fully address INA’s contention that its appeal can be characterized as an immediately appealable interlocutory appeal under State v. Curcio, 191 Conn. 27, 30, 463 A.2d 566 (1983). The present appeal concerns a ruling that neither terminates a separate and distinct proceeding nor concludes the rights of the parties relating thereto.

       The merits of the plaintiffs entitlement to prejudgment interest are not before us at this time.


source: Caselaw Access Project

author: Shea, J.

license: Public Domain

text:
    Carmine Carbone v. Alex Vigliotti et al.
    (14350)
    Peters, C. J., Shea, Covello, Borden and Berdon, Js.
    Argued January 8
    decision released June 2, 1992

      Mark T. Kelly, for the appellant (plaintiff).

      Roy H. Scharf for the appellee (named defendant).
   Shea, J.

The plaintiff, Carmine Carbone, who owns the land over which the named defendant, Alex Vigliotti, claims a right-of-way for access to a public street from a two-family house constructed on this defendant’s property, brought this action to enjoin such a use, to obtain a declaratory judgment that the construction of the house violates the zoning regulations of the town of Branford and to secure other appropriate relief, including damages. The trial court rendered judgment for the defendants.

In his appeal the plaintiff claims: (1) that the unity of title doctrine; Curtin v. Franchetti, 156 Conn. 387, 242 A.2d 725 (1968); bars the conclusion of the trial court that the defendant is entitled to use the right-of-way for the two-family house he has constructed; and (2) that the undisputed facts establish that the construction and location of the house violate the zoning regulations as a matter of law, despite the contrary holding of the court. We conclude that the plaintiff cannot prevail on either of these claims, and we affirm the judgment.

There is no dispute about the facts, to most of which counsel commendably stipulated. The plaintiff owns a two-family house on East Main Street in Branford, in which he resides and also conducts his business as a certified public accountant. He purchased this property on June 16, 1978. At its northwest corner, a strip of land 26.5 feet wide, which is used as a driveway, extends westerly about 165 feet to Chestnut Street. The plaintiff maintains the driveway to provide his tenants, employees and clients with access from Chestnut Street to a parking lot at the rear of his house. The occupants of another two-family house fronting on East Main Street and situated on a lot adjoining the plaintiffs land on the east also use the driveway for access from Chestnut Street to the rear of their property, and the plaintiff concedes their right to do so.

On October 6,1986, the defendant purchased a tract of land lying north of the plaintiff’s driveway and comprised of four contiguous parcels designated as parcels 1, 2, 3 and 4 on the diagram included in the appendix to this opinion. After his original proposal to develop the entire tract for the purpose of building condominium units was rejected by the Branford planning commission, the defendant proceeded to divide parcel 1 into two lots, both of which front on Chestnut Street. He reconstructed the existing two-family house on one of these lots and erected a new two-family house on the other lot. The remainder of the tract, parcels 2, 3, and 4, which lie along the rear of the two lots fronting on Chestnut Street, were combined into one lot for the purpose of building another two-family house thereon. A strip of land twenty feet wide was taken from the rear of the two lots that front on Chestnut Street and added to the westerly boundary of parcels 2, 3 and 4 in order to construct a driveway extending to the plaintiffs driveway, which leads to Chestnut Street and over which the defendant claims a right-of-way. The defendant obtained a building permit on February 8, 1988, to erect a two-family house on the interior lot and began construction soon afterward.

Although the plaintiff had observed the construction activity on the interior lot comprised of parcels 2, 3 and 4 some time earlier, he first learned in the late summer or fall of 1988 of the defendant’s intention to use for ingress and egress the portion of the driveway extending from the southerly boundary of that lot to Chestnut Street. The defendant used a strip of land along the boundary between the two lots fronting on Chestnut Street for access to the interior lot during the course of construction of the house on that property. In this strip he has installed water and sewer lines that service the house on the interior lot.

The plaintiff commenced this action on January 10, 1989, after the foundation had been installed, the house had been framed, rough plumbing, heating, air-conditioning and electrical wiring had been completed and the defendant was preparing to install sheetrock. The defendant continued his work on the house and completed its construction by July 20, 1989, when he obtained a certificate of occupancy from the town of Branford. At the time of trial in May, 1991, the house was occupied by the defendant’s tenants, who continued to use the strip of land between the two lots fronting on Chestnut Street for access to the interior lot during the pendency of this litigation.

After examining the deeds of title to the land involved, the trial court concluded that parcels 2, 3 and 4, which the defendant had combined to form the interior lot, had “an appurtenant right-of-way” over the 26.5 foot wide driveway of the plaintiff from the southerly boundary of the interior lot to Chestnut Street, a distance of approximately 165 feet, for “[v]ehicular and pedestrian use . . . for ingress and egress to and from” the interior lot. The court rejected claims advanced at trial by the plaintiff that the defendant had abandoned by nonuser the right-of-way granted in the deeds and that to permit his proposed use would overburden that easement. With respect to the claimed violations of zoning and subdivision regulations, the court concluded that the defendant had adequately satisfied the requirements of the regulations involved.

I

On appeal the only challenges raised by the plaintiff to the trial court’s conclusion that the defendant’s interior lot has an appurtenant right-of-way over the portion of the plaintiff’s driveway extending from that lot to Chestnut Street are: (1) the insufficient basis for finding in the relevant conveyances an intention to create an easement for the benefit of that parcel; and (2) the failure of the court to recognize that, even if such an intention had existed, the “unity of title doctrine” precludes the creation of such an easement for parcel 2, which lies between parcels 3 and 4, and, therefore, bars its use by occupants of the house on the interior lot, which comprises the three parcels. We agree with the plaintiff that the documents relied upon by the defendant do not adequately support the conclusion that an easement appurtenant to parcel 2 over the plaintiff’s driveway has been created. We hold, nevertheless, that the unquestioned grant of a right-of-way over the plaintiff’s driveway for access to Chestnut Street contained in the deed to parcel 4, which the defendant has now acquired, allows the use of the right-of-way for the benefit of the occupants of the house, which is situated on the boundary line between parcels 2 and 4. Because of these conclusions it is not necessary to resolve the issue of the continuing viability of the unity of title doctrine in this state.

A

The first reference in the exhibits introduced at trial. to the disputed right-of-way to Chestnut Street is contained in a November 30, 1936 deed from Gustave Hamre conveying parcel 4 to Harry Carsten “[tjogether with a right of way across [parcel 2] . . . also across a strip of land ten feet wide, located [on parcel 3] . . . and thence through a [26.5] foot right of way ... to Chestnut Stfreet].” On the same date, Gustave Hamre deeded parcel 2 to Frank Beach subject to the right-of-way granted to Carsten for parcel 4, but without creating as an appurtenance to parcel 2 any right to use the 26.5 foot right-of-way to Chestnut Street. At that time Beach owned land bounding parcel 2 on the east and fronting on East Main Street, and parcel 2 was an addition to his rear yard. Beach later transferred parcel 2 to Carsten, who on March 19,1947, conveyed both parcels 2 and 4 to George Edwards.

On September 10, 1947, Edwards acquired title to parcel 3 from John Hamre, who then owned the 26.5 foot strip of land constituting the disputed right-of-way. The deed for this transfer, following the description of parcel 3, contains a recital that “[s]aid grantee has right of way over land of Grantor to Chestnut Street” and also refers to a map dated August 11,1947, showing parcel 3 with the legend, “Land of John A. Hamre to be deeded to George Edwards,” as well as a further legend indicating that George Edwards and two others “have a right of way” over the strip leading to Chestnut Street. This recital and the map are apparently the sole basis for the trial court’s conclusion that John Hamre intended to give to George Edwards, the plaintiff’s predecessor in title to parcels 2, 3 and 4, a right-of-way as an appurtenance to parcel 2 over the 26.5 foot strip. Prior to this conveyance, Edwards possessed such a right by virtue of his ownership of parcel 4, as the plaintiff concedes.

The construction of a deed in order to ascertain the intent expressed in the deed presents a question of law and requires consideration of all its relevant provisions in the light of the surrounding circumstances. Taylor v. Dennehy, 136 Conn. 398, 402, 71 A.2d 596 (1950). On appeal the scope of review of such a question is plenary and does not require “ ‘the customary deference to the trial court’s factual inferences.’ ” Contegni v. Payne, 18 Conn. App. 47, 51, 557 A.2d 122 (1989). In this case the language of the deed as well as of the map legends does not unequivocally create an easement over the strip for the benefit of parcel 2, but may have been intended simply to acknowledge that the grantee, as the owner of parcel 4, had such an easement. See Ozyck v. D'Atri, 206 Conn. 473, 479, 538 A.2d 697 (1988). Even if this language could reasonably be construed to have created a right-of-way over the strip, the absence of any reference to parcel 2, except as a boundary in the description of parcel 3, would indicate that its benefit was restricted to parcel 3. Furthermore, the map referred to in the deed of parcel 3 from John Hamre to Edwards, dated approximately one month before that conveyance, shows parcel 2 to have a ten foot right-of-way over land of Frank Beach, its previous owner, to East Main Street.

B

“The way can become legally attached to the dominant estate only if the same person has unity of title to both the way and the dominant estate.” Curtin v. Franchetti, 156 Conn. 387, 389, 242 A.2d 725 (1968). Under this rule the conveyance of parcel 3 by John Hamre to George Edwards could not have created a right-of-way over the 26.5 foot strip as an appurtenance to parcel 2, even if such an intention were plainly expressed in the deed, because John Hamre did not then own parcel 2, the “dominant estate,” but only the “way,” the servient estate. The defendant urges that we overrule Curtin and abandon the unity of title doctrine, as several other states have done. See, e.g., Willard v. First Church of Christ, Scientist, 7 Cal. 3d 473, 498 P.2d 987, 102 Cal. Rptr. 987 (1972); Townsend v. Cable, 378 S.W.2d 806, 808 (Ky. 1964); Garza v. Grayson, 255 Or. 413, 467 P.2d 960 (1970).

In Ozyck v. D’Atri, supra, 479, however, this court declined to reconsider our adherence to this doctrine because it was not clear in that case that the grantor had intended to create an easement for the benefit of a “stranger to the title.” While we recognized that several commentators view the unity of title doctrine as an obsolete vestige of feudalism that frustrates the intention of the grantor; H. Harris, “Reservations in Favor of Strangers to the Title,” 6 Okla. L. Rev. 127 (1953); 2 American Law of Property (Casner Ed. 1952) § 8.29; 5 Restatement, Property § 472, comment a; we decided to defer reconsideration of the subject until we are confronted with a case in which the grantor’s intention to create an interest that would violate the rule is “reasonably clear.” Ozyck v.D’Atri, supra. In view of our conclusion that there is insufficient evidence to support the inference that John Hamre, in conveying parcel 3, intended to create an easement for the benefit of parcel 2, which he had never owned, the present case affords no more appropriate an occasion than did Ozyck for reconsideration of the unity of title doctrine.

C

The plaintiff does not dispute that the defendant, as the owner of parcel 4, has acquired a right-of-way over the 26.5 foot strip for use in conjunction with that parcel or that approximately one half of the two-family house for which the defendant seeks to exercise this right is situated on parcel 4. The proposed use of the strip to provide access to Chestnut Street for the benefit of the tenants occupying the house is not materially different from that contemplated when Gustave Hamre conveyed parcel 4 in 1936 with a right-of-way to Chestnut Street. The circumstance that one half of the house is situated on parcel 2 does not indicate that the right-of-way will be overburdened or subjected to uses beyond those envisioned at the time of the conveyance of parcel 4. Only one house has been built on the three parcels, which have now been combined to form a single building lot. In granting the right-of-way for access to Chestnut Street as an appurtenance to parcel 4, Gustave Hamre must have realized that it would someday probably be used for that purpose by the occupants of a dwelling similar to those in the surrounding area, several of which are two-family houses. We are “warranted in assuming that the parties to the conveyance contemplated a normal development of the use of the dominant tenement.” 5 Restatement, Property § 484.

The doctrine that “[a]n easement cannot be made to attach to other land which the owner of a dominant estate may subsequently acquire”; 2 G. Thompson, Real Property (1961 Repl.) § 322, p. 77; see Ozyck v. D’Atri, supra, 479; was intended to protect the servient estate from the use of an easement in a manner or to an extent not within the reasonable expectations of the parties at the time of its creation. In this case, however, the addition of parcels 2 and 3 to lot 4 in order to form a single building lot has not changed either the character or the extent of the proposed use of the easement to Chestnut Street. The plaintiff relies on the decision of the Appellate Court in Lichteig v. Churinetz, 9 Conn. App. 406, 411-12, 519 A.2d 99 (1986), in which the owner of the dominant estate was enjoined from using an easement appurtenant to that property, on which a residence was situated, for the purpose of providing access to a house on other land that he owned. That case is readily distinguishable, however, because in that case there had been a material increase in vehicular traffic on the easement resulting from its use by occupants of the other house. Id., 409. We conclude that, when no significant change has occurred in the use of the easement from that contemplated when it was created, as in this case, the mere addition of other land to the dominant estate does not constitute an overburden or misuse of the easement. Accordingly, we affirm the trial court’s conclusion that the defendant is entitled to use the 26.5 foot strip as a right-of-way to and from Chestnut Street for the benefit of the residents of the two-family house situated on parcels 2, 3 and 4.

II

The plaintiff also claims that, by constructing a two-family house on the interior lot comprised of parcels 2, 3 and 4, the defendant has violated § 1-2 of the Bran-ford subdivision regulations, which requires approval by the planning and zoning commission of any subdivision or resubdivision, and § 25.2.1 (1) of the Branford zoning regulations, which requires such approval for interior lots and also specifies that “[t]he lot shall be located in an R-3, R-4 or R-5 Zone and shall be used only for a single family dwelling.” The trial court resolved both these issues in favor of the defendant, and we affirm its decision.

A

Section 1-2 of the subdivision regulations prohibits any “subdivision” of land without the approval of the planning and zoning commission. The term “subdivision” is defined in § 1-7-3a to include “the division of a tract or parcel of land into three or more parts or lots for the purpose, whether immediate or future, of sale or building development . . . .” Section 8-18 of the General Statutes, however, restricts the application of this definition to divisions of land “made subsequent to the adoption of subdivision regulations.” It is undisputed that parcels 1,2, 3 and 4 had been created as separate parcels before the Branford subdivision regulations became effective in 1954. The plaintiff claims, nevertheless, that when the defendant acquired the four parcels in 1986, he intended to use the entire tract for a condominium development and must be deemed to have merged the four parcels into a single piece of land, thus destroying their status as separate parcels. In view of the finding that the defendant had purchased the four parcels “to develop condominium units” and the undisputed evidence that he had submitted a proposal for such a development of the entire tract, the plaintiff contends that the trial court was bound to conclude that a merger had occurred so that the subdivision regulations were applicable.

“Contiguous land all owned by the same proprietor does not necessarily constitute a single lot.” Schultz v. Zoning Board of Appeals, 144 Conn. 332, 338, 130 A.2d 789 (1957). The plaintiff concedes that whether a merger of contiguous parcels of land has occurred depends on the intention of the owner and that such an issue is factual. See Marino v. Zoning Board of Appeals, 22 Conn. App. 606, 608-10, 578 A.2d 165, cert. denied, 216 Conn. 817, 580 A.2d 58 (1990); Molic v. Zoning Board of Appeals, 18 Conn. App. 159, 164, 556 A.2d 1049 (1989). The trial court found that “[a]t no time did [the defendant] intend to merge said parcels into one tract if the application was rejected . . . .’’For this court the only question is whether the finding of the trial court that no such merger occurred is clearly erroneous, despite the defendant’s unsuccessful application to erect condominium units on the entire tract. See Practice Book § 4061; Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 435 A.2d 24 (1980).

Although there was no testimony expressly indicating that the defendant’s original intention to use the entire tract for a condominium development was conditioned on approval of that proposal by the planning commission, such an inference may reasonably have been drawn from the evidence. It would have been quite unusual for an experienced builder, like the defendant, not to have had alternative uses for the property in mind in the event that his original plan should be disapproved. The four parcels continued to be separately assessed and taxed after he purchased them. He applied for building permits in pursuit of his plan to erect three two-family houses on the property within a reasonable time after his application for the condominium development had been denied. We conclude that the finding that no merger had occurred is adequately supported by the evidence. Accordingly, we reject the plaintiffs contention that the subdivision regulations were applicable and prohibited his construction of a two-family house on parcels 2, 3 and 4 without the approval of the planning commission.

B

The plaintiffs final claim, that the construction of the two-family house on the interior lot comprised of parcels 2, 3 and 4 violates § 25.2.1 of the zoning regulations, is based on the premise that the regulation was intended to apply to a nonconforming interior lot situated in an R-l zone, in which two-family houses are permitted uses. We agree with the zoning enforcement officer, who approved the lot as eligible for a building permit, that the regulation was inapplicable.

Because the defendant’s interior lot lacks frontage on a public street, it does not conform to the zoning regulations, which require a minimum frontage of fifty feet in an R-l zone, in which the lot is situated. Section 5.11.1 of the regulations permits a parcel of land that fails to meet the frontage or other applicable zoning requirements to be used as a lot for the construction of a building provided that “[t]he use, building or other structure shall conform to all other requirements of these Regulations . . . .” Section 25.2.1 permits interior lots “subject to the approval of the Planning and Zoning Commission” and also requires that “[t]he lot shall be located in an R-3, R-4 or R-5 Zone and shall be used only for a single family dwelling.” The plaintiff maintains that the permission ostensibly granted by § 5.11 to build a house on an existing parcel of land lacking the prescribed street frontage is subject to both of these requirements of § 25.2.1.

When zoning regulations were first adopted in Bran-ford in 1956, parcels 2, 3 and 4 were owned by George Edwards and together constituted a lot available for building purposes, despite its lack of frontage on a public street. After the regulations became effective, it retained that status as a nonconforming use, because of the provision of General Statutes § 8-2 that “[sjuch regulations shall not prohibit the continuance of any nonconforming use . . . existing at the time of the adoption of such regulations.” “Where a nonconformity exists, it is a vested right which adheres to the land itself.” Petruzzi v. Zoning Board of Appeals, 176 Conn. 479, 483, 408 A.2d 243 (1979). Accordingly, we must construe the Branford zoning regulations in such a manner as to avoid a conflict with the statute and the vested right that the defendant acquired when he purchased the land.

If the requirement of § 25.2.1 that an interior lot be located in an R-3, R-4 or R-5 zone were applicable, the defendant’s interior lot could never satisfy that provision, because it is situated in an R-l zone and he would not be permitted to build even a single family house thereon, thus effectively confiscating his nonconforming use of the property. The plaintiff, in recognition of the nonconforming status of the lot, implicitly concedes the inapplicability of this portion of § 25.2.1, but contends that the provision that an interior lot “shall be used only for a single family dwelling” is, nevertheless, applicable. The R-3, R-4 and R-5 zones, to which that provision expressly applies, however, limit residential uses to single family homes, thus rendering the provision redundant with respect to interior lots in those zones, but, nevertheless, strongly corroborative of its purpose to restrict those zones to single family dwellings. The provision would have an impact only if it were applicable to interior lots in R-l and R-2 zones, in which both two-family and single family houses are permitted. If the drafters of the provision actually intended that its only practical application would occur in R-l and R-2 zones, however, they have chosen a labyrinthine route to their objective, which could have been accomplished simply by referring to those zones specifically. Furthermore, the evident purpose of the provision, to ensure the conformity of new dwellings with existing dwellings in the same zone, would be thwarted if interior lots in a two-family zone could be used only for single family homes, especially when a particular lot is virtually surrounded by two-family houses, as in this case. Since the provision was designed to achieve uniformity of development in single family zones, to which it is expressly applicable, it would be incongruous to apply it collaterally to R-l and R-2 zones, in which a mixture of single family and multi-family homes is contemplated as a zoning objective. We conclude that the plaintiffs construction of § 25.2.1 (1) is supported by neither the text of that provision nor the policy it is intended to effectuate.

The judgment is affirmed.

In this opinion the other justices concurred.

(See Appendix on following page.)

APPENDIX

       In addition to the named defendant, the plaintiff included as defendants the town of Branford, several town zoning and building officials, a bank holding a mortgage on the property of the named defendant, and other persons who may possibly have an interest. The trial court found that all persons having an interest in the subject matter of the complaint had been made parties or had been given reasonable notice of the action. For convenience we use the word “defendant” to refer only to Alex Vigliotti, the named defendant.

       The plaintiff appealed to the Appellate Court, but we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c).

       The defendant also testified that the addition of twenty feet of area to the interior lot made it possible to select a location for the house that would avoid disturbance of some wetlands on the property and would provide a more adequate backyard.

       The plaintiff has not sought review of the trial court’s findings relating to abandonment or overburdening of the easement.

       The deed of parcel 2 from Frank Beach to Harry Carsten is not contained in the record. A map dated August 11, 1947, indicates, however, that Carsten had a right-of-way ten feet in width extending eastwardly from parcel 2 to East Main Street along the northerly boundary of Beach’s land fronting on East Main Street. The deed from Carsten to George Edwards refers to no right-of-way appurtenant to parcel 2, but only to the easement created for the benefit of parcel 4 for access to Chestnut Street, to which parcel 2 is subject.

       See footnote 5, supra. At the time of trial this right-of-way was overgrown and was obstructed by a garage erected on the servient property several years before the defendant acquired parcel 2.

       Section l-7-3a of the Branford subdivision regulations provides: “Subdivision means the division of a tract or parcel of land into three or more parts or lots for the purpose, whether immediate or future, of sale or building development expressly excluding development for municipal, conservation or agricultural purposes, and includes resubdivision.”

       General Statutes § 8-18 provides in part: “definitions. As used in this chapter: ‘Commission’ means a planning commission; ‘municipality’ includes a city, town or borough or a district establishing a planning commission under section 7-326; ‘subdivision’ means the division of a tract or parcel of land into three or more parts or lots made subsequent to the adoption of subdivision regulations by the commission, for the purpose, whether immediate or future, of sale or building development expressly excluding development for municipal, conservation or agricultural purposes, and includes resubdivision . . . .”

       Section 25.2.1 of the Branford zoning regulations provides in part: “Interior Lots: An interior lot may be permitted, subject to approval by the Planning and Zoning Commission. When such lot is not part of a subdivision, a record map shall be submitted in two blue or black line prints for approval by the Commission, prior to filing in the Land Records, which map shall be clearly and legibly drawn at a scale if 1" = 40' and shall show the following:
      * ** *
      “All of the following requirements shall be met:
      “1. The lot shall be located in an R-3, R-4 or R-5 Zone and shall be used only for a single family dwelling.
      * * *
      “8. In all other respects, each lot shall conform to the requirements of the zone in which it is located.”

       There is no substance to the plaintiff’s claim that the defendant failed to comply with the provision of § 25.2.1 of the zoning regulations that “[a]n interior lot may be permitted, subject to approval by the Planning and Zoning commission.” It is undisputed that the defendant obtained all necessary permits for construction of a two-family house on his interior lot, including a certificate of zoning compliance from the zoning enforcement officer. We have recently construed the Branford zoning regulations to designate the zoning enforcement officer as “the official charged with the responsibility of enforcing the applicable regulations.” Castellon v. Board of Zoning Appeals, 221 Conn. 374, 381, 603 A.2d 1168 (1992). In Branford, the zoning enforcement officer is appointed by the planning and zoning commission pursuant to its authority to “provide for the manner in which the zoning regulations shall be enforced.” Id., 378; General Statutes § 8-3 (e). In issuing the necessary zoning approval to the defendant the zoning enforcement officer was acting as the duly authorized agent of the planning and zoning commission. Accordingly, there is no substance to the plaintiffs claim that the defendant had never obtained the approval of that commission for construction of a two-family house on his interior lot.

       Section 5.11 of the Branford zoning regulations provides: “Lots: A parcel of land, which fails to meet the area, shape or frontage or any other applicable requirements of these Regulations pertaining to lots, may be used as a lot, and a building or other structure may be constructed, reconstructed, enlarged, extended, moved or structurally altered thereon, provided that all of the following requirements are met:
      “5.11.1 The use, building or other structure shall conform to all other requirements of these Regulations;

        “5.11.2 If used for a dwelling, the lot shall contain a minimum area of 4,000 square feet; and
      “5.11.3 If the parcel fails to meet the area requirements of these Regulations, the owner of the parcel shall not also be the owner of contiguous land which in combination with such parcel that fails to conform would make a parcel that conforms or more nearly conforms to the area requirements of these Regulations pertaining to lots.”

       General Statutes § 8-2 provides in part: “Such regulations shall not prohibit the continuance of any nonconforming use, building or structure existing at the time of the adoption of such regulations.”


author: Borden, J.

text:
    Benjamin I. Tedesco v. City of Stamford et al.
    (14301)
    Shea, Callahan, Glass, Borden and Berdon, Js.
    Argued January 16
    decision released June 2, 1992

      Lawrence M. Lapine, with whom were Christopher R. Bello and, on the brief, Robert S. Bello and Thomas M. Cassone, for the appellant-appellee (plaintiff).

      James V. Minor, assistant corporation counsel, for the appellees-appellants (named defendant et al.).
   Borden, J.

The dispositive issue in this appeal and cross appeal is whether a municipal employee whose employment was terminated was afforded his fourteenth amendment right to procedural due process by the union grievance procedures established under a collective bargaining agreement. The plaintiff, Benjamin Tedesco, appeals from the judgment of the Appellate Court reversing the trial court’s award to the plaintiff of compensatory damages and attorney’s fees for the violation of 42 U.S.C. § 1983 by the defendant, the city of Stamford. The defendant cross appeals from the judgment of the Appellate Court holding that the post-termination hearing that was afforded to the plaintiff was “constitutionally deficient” and awarding the plaintiff one dollar in nominal damages. We reverse the judgment of the Appellate Court on the defendant’s cross appeal. This renders the plaintiff’s appeal moot.

The relevant facts are as follows. On September 11, 1980, the plaintiff, while employed as a trash collector for the city, suffered a torn rotator cuff in his right shoulder. On January 30,1981, the plaintiff underwent surgery on his shoulder. The plaintiff did not return to work after his injury, although he did remain on the payroll and received his full salary. When the shoulder failed to improve significantly, the plaintiff underwent a second operation on November 30,1981. On the same day, the defendant sent the plaintiff a letter that his employment was terminated because “[t]he letter of prognosis [from the plaintiff’s doctor, John Carino] . . . states that you will not be able to return to work for an unestimated period of time . . . and does not anticipate that you will be returning to your regular occupation for a prolonged period of time.”

On December 7,1981, the plaintiff filed a grievance with his union, Teamster Local Union No. 145 (union), seeking to be restored to his position as a laborer. On that same day, the union business agent, Dominic Lamberti, and the sanitation department shop steward, Jimmy Bolanis, met with the deputy commissioner of the defendant’s department of public works, John Canavan, for forty-five minutes to discuss the plaintiff’s grievance. At that meeting Canavan produced the plaintiff’s absenteeism record and stated “[w]e can’t tolerate this kind of performance because he is more out than he is in.” Lamberti explained that many of those absences were due to injury and were not the plaintiff’s fault, but Canavan refused to reinstate the plaintiff.

Lamberti then made an appointment to discuss the plaintiff’s grievance with the commissioner of the department of public works, Bruce Spaulding, pursuant to the collective bargaining agreement. A meeting was held on December 10, 1981, and in attendance were Spaulding, Lamberti, Canavan, Bolanis and Vincent Capoccitti, a union representative. The commissioner produced letters from Carino, stating that the plaintiff would not be able to work for a “prolonged” and “unestimated” period of time. Despite the urgings of Lamberti, Bolanis and Capoccitti to the commissioner to reinstate the plaintiff, the commissioner denied the plaintiff’s grievance. The union thereafter refused to pursue the plaintiff’s grievance before the Connecticut board of mediation and arbitration because, in the union’s view, the plaintiff’s case was too weak. Lamberti, a union representative with eighteen years of experience, testified that he had handled over 150 grievances prior to December 10,1981, and that he did not “think . . . [he had] a . . . chance to win this case.” The plaintiff, through counsel, made numerous attempts to secure a hearing with the defendant but all requests were denied because the union was the exclusive bargaining agent for the plaintiff.

The plaintiff brought the present action by filing a complaint in the Superior Court on August 31, 1982. The first count of a subsequent amended complaint alleged that the defendant had violated the plaintiff’s right to procedural due process by failing to afford the plaintiff a hearing. On August 29,1988, after a court trial, the court, Cioffi, J., concluded that the first count of the plaintiff’s complaint stated “a cause of action sounding in violations of both federal and state constitutional rights embodied in 42 U.S.C. § 1983.” The court held that pursuant to Cleveland Board of Education v. Loudermill, 470 U.S. 532, 105 S. Ct. 1487, 84 L. Ed. 2d 494 (1985), the plaintiff, having a property interest in his employment, was entitled to a pretermination hearing. The court further held that since the defendant'failed to provide the plaintiff with a pretermination hearing, it was required to provide the plaintiff with a posttermination hearing. The court concluded that the December 7 and 10 meetings between the union and city officials “did not comport with the requirements of a post-termination hearing because those hearings with Mr. Canavan and/or Commissioner Spaulding were not before a neutral and unbiased decisionmaker.” The court also concluded that the arbitration hearing held in 1987; see footnote 9, supra; was not a constitutionally sufficient posttermination hearing because it did not “take place within a meaningful time after the termination.” Based on those conclusions, the court awarded the plaintiff $41,084.44 in compensatory damages and $47,085.50 in attorney’s fees pursuant to 42 U.S.C. § 1988. The court dismissed the remaining counts as moot.

The defendant appealed to the Appellate Court, which reversed the judgment of the trial court and remanded the case with direction to render judgment for the defendant. The Appellate Court concluded that the plaintiff’s complaint did not state a cause of action under 42 U.S.C. § 1983 because the complaint did not allege that the deprivation of the plaintiff’s due process right “occurred through the operation of a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body’s officers.” (Internal quotation marks omitted.) Tedesco v. Stam ford, 20 Conn. App. 51, 56, 563 A.2d 1046 (1989). On the plaintiffs first appeal to this court, we concluded that “[t]he defendant had sufficient notice that the plaintiff was pursuing a cause of action under 42 U.S.C. § 1983 to prepare its defense and was not misled or surprised by the plaintiffs failure to allege specifically that his constitutional rights were violated as the result of a municipal policy. The defendant’s failure to object to the introduction of evidence concerning the city’s policies and its failure to claim any prejudice further supports this conclusion.” Tedesco v. Stamford, 215 Conn. 450, 463, 576 A.2d 1273 (1990). We therefore reversed the judgment of the Appellate Court and remanded the case to the Appellate Court for further proceedings.

On remand, the Appellate Court first concluded that the confirmation by the trial court, Landau, J., of the 1987 arbitration proceeding; see footnote 9, supra; did not render the plaintiffs claim moot since “[a]n employee’s rights under 42 U.S.C. § 1983 cannot be precluded by a decision in an arbitration proceeding. Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S. Ct. 1101, 39 L. Ed. 2d 147 (1974). An arbitrator is limited to determining an employee’s rights under a collective bargaining agreement, whereas the resolution of more difficult constitutional issues remains in the province of the courts.” Tedesco v. Stamford, 24 Conn. App. 377, 379-80, 588 A.2d 656 (1991). The Appellate Court concluded further that based on “[subsequent federal law,” the earlier decision of the trial court, Cioffi, J., that the plaintiff had been entitled to a pretermination hearing when he was discharged in November, 1981, must be reversed. The Appellate Court noted that the trial court had relied on Cleveland Board of Education v. Loudermill, supra, which, in 1985, established the right to a pretermination hearing. The Appellate Court concluded, however, that pursuant to Zinker v. Doty, 907 F.2d 357 (2d Cir. 1990), “the Loudermill decision cannot be applied retroactively to give the plaintiff a right that he did not have at the time of his termination.” Tedesco v. Stamford, supra, 24 Conn. App. 380-81.

The Appellate Court next considered whether the plaintiff was afforded a meaningful posttermination hearing. The court concluded, without explanation, that “the hearing afforded the plaintiff was constitutionally deficient . . . .” Id., 381. The court further concluded, however, citing Carey v. Piphus, 435 U.S. 247, 98 S. Ct. 1042, 55 L. Ed. 2d 252 (1978), that the plaintiff was “not entitled to recover anything greater than nominal damages for the justified deprivation of an interest protected by the constitution” since the “record in the arbitration proceedings, of which we took judicial notice, [is] replete with medical reports stating that the plaintiff could not return to work, and would never be able to return to his job in the future.” Tedesco v. Stamford, supra, 24 Conn. App. 382-83. The Appellate Court, therefore, reversed the award of compensatory damages. Finally, the Appellate Court concluded that the plaintiff was not entitled to attorney’s fees since he had failed to produce contemporaneous time records. Id., 385.

We granted the plaintiffs petition for certification limited to the following issues: “1. Did the Appellate Court properly reverse the trial court's award of attorney’s fees based on an absence of contemporaneous time records? 2. Did the Appellate Court properly reverse the award of compensatory damages?” Tedesco v. Stamford, 219 Conn. 911, 593 A.2d 136 (1991). We also granted the defendant’s petition for certification to cross appeal on the following issue: “Did the Appellate Court properly determine that the union grievance process and decision of the board of mediation and arbitration was ‘constitutionally deficient’ and direct that the plaintiff be awarded nominal damages?” Tedesco v. Stamford, 219 Conn. 910, 593 A.2d 135 (1991).

In its cross appeal, the defendant claims that the Appellate Court improperly concluded that the union grievance procedures in the collective bargaining agreement did not satisfy the plaintiff’s right to due process. The defendant argues that affirming the Appellate Court decision would undermine the union’s discretion in deciding which claims to bring to arbitration and would unduly burden the labor relations process. The plaintiff claims, on the contrary, that the grievance procedures in the collective bargaining agreement did not give him all the process that he was due. We agree with the defendant that, in this case, the grievance procedures in the collective bargaining agreement satisfied the plaintiffs right to procedural due process.

The fourteenth amendment to the United States constitution provides that the “State [shall not] deprive any person of life, liberty, or property, without due process of law . . . .’’In order to prevail on his due process claim, the plaintiff must prove that: (1) he has been deprived of a property interest cognizable under the due process clause; and (2) the deprivation of the property interest has occurred without due process of law. See Double I Limited Partnership v. Planning & Zoning Commission, 218 Conn. 65, 76, 588 A.2d 624 (1991); Connecticut Education Assn. v. Tirozzi, 210 Conn. 286, 293, 554 A.2d 1065 (1989); see also comment, “Developments in the Law—Public Employment,” 97 Harv. L. Rev. 1611,1781 (1984). It is undisputed that the plaintiff had a property interest in his continued employment with the defendant because the collective bargaining agreement stated that he could be terminated only for “just cause.” The issue then is whether the plaintiff was deprived of this property interest without due process of law. See Federal Deposit Ins. Corporation v. Mallen, 486 U.S. 230, 240, 108 S. Ct. 1780, 100 L. Ed. 2d 265 (1988); Morrissey v. Brewer, 408 U.S. 471, 481, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972).

“[T]he due process clauses of the state and federal constitutions require that one subject to significant deprivation of liberty or property must be accorded adequate notice and a meaningful opportunity to be heard.” Counsel on Probate Judicial Conduct re: James H. Kinsella, 193 Conn. 180, 207, 476 A.2d 1041 (1984); Sager v. GAB Business Services, Inc., 11 Conn. App. 693, 695, 529 A.2d 226 (1987). We note, however, that “[d]ue process, unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances. Cafeteria Workers v. McElroy, 367 U.S. 886, 895 [81 S. Ct. 1743, 6 L. Ed. 2d 1230] (1961). [D]ue process is flexible and calls for such procedural protections as the particular situation demands. Morrissey v. Brewer, 408 U.S. 471, 481 [92 S. Ct. 2593, 33 L. Ed. 2d 484] (1972). Accordingly, resolution of the issue whether the [grievance] procedures provided here are constitutionally sufficient requires analysis of the governmental and private interests that are affected.” (Internal quotation marks omitted.) Mathews v. Eldridge, 424 U.S. 319, 334, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976); see also comment, supra, 1791.

In Mathews v. Eldridge, supra, 335, the court stated that the “specific dictates of due process generally [require] consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” Applying these factors to the present case, we conclude that the plaintiff’s right to procedural due process was not violated.

“[T]he significance of the private interest in retaining employment cannot be gainsaid. [The United States Supreme Court has] frequently recognized the severity of depriving a person of the means of livelihood. See Fusari v. Steinberg, 419 U.S. 379, 389 [95 S. Ct. 533, 42 L. Ed. 2d 521] (1975); Bell v. Burson, [402 U.S. 535, 91 S. Ct. 1586, 29 L. Ed. 2d 90 (1971)]; Goldberg v. Kelly, 397 U.S. 254, 264 [90 S. Ct. 1011, 25 L. Ed. 2d 287] (1970); Sniadach v. Family Finance Corp., 395 U.S. 337, 340 [89 S. Ct. 1820, 23 L. Ed. 2d 349] (1969). While a fired worker may find employment elsewhere, doing so will take some time and is likely to be burdened by the questionable circumstances under which he left his previous job. See Lefkowitz v. Turley, 414 U.S. 70, 83-84 [94 S. Ct. 316, 38 L. Ed. 2d 274] (1973).” Cleveland Board of Education v. Loudermill, supra, 543. Moreover, the government’s interest in immediate termination, standing alone, does not outweigh the plaintiff’s interest in retaining employment. See id., 544.

The plaintiff’s interest, however, is tempered in this case by the societal interest in an orderly and efficient system of dispute resolution in the public sector in the form of union grievance procedures set forth in a collective bargaining agreement, with benefits inuring to both employer and employee. See School Administrators Assn. v. Dow, 200 Conn. 376, 511 A.2d 1012 (1986) (grievance procedures are preferred method of resolving disputes); Antinore v. State, 49 App. Div. 2d 6, 371 N.Y.S.2d 213 (1975), aff'd, 40 N.Y.2d 921, 358 N.E.2d 268, 389 N.Y.S.2d 576 (1976) (binding arbitration procedures must be viewed as advancing public good by expedition of resolution of disciplinary disputes in simpler, more prompt manner). As the United States Court of Appeals for the Seventh Circuit noted in Parrett v. Connersville, 737 F.2d 690, 696 (7th Cir. 1984), “[although the framers of the Fourteenth Amendment . . . could not have foreseen the rise of public-employee unions, grievance procedures, and other phenomena of modem labor relations . . . the concept of due process is sufficiently flexible to allow the courts to work out an accommodation between the interest in an orderly system of labor relations in the public sector as elsewhere and public employees’ interest in procedural protections of job rights classified as property rights.”

The plaintiffs interest in the present case is also tempered when one balances the minimal risk of an erroneous deprivation of the plaintiff’s property interest through the procedures used in the collective bargaining agreement against the minimal value additional procedural safeguards would provide and the adverse effect such additional safeguards would have on the labor relations process. In Parrett v. Connersville, supra, 696, the court stated that “[t]he standard test of procedural adequacy under the due process clause, that of Mathews v. Eldridge, [supra, 335,] merely requires a comparison of the costs and benefits of giving the plaintiff a more elaborate procedure than he actually received. There is no basis under this test for blanket disqualification of arbitration, which businesses often use to resolve multi-million dollar disputes, and which is the standard method of protecting job security in unionized plants and facilities in the private sector. If the dispute is the type for which arbitration is well suited—and disputes over job rights fit that bill-then the gains from additional procedure, in reducing the chance of error, may well be smaller than the costs of additional procedure, especially when are added to the direct costs the indirect costs in disrupting orderly labor relations by bypassing the grievance procedure set up by a collective bargaining agreement.”

In the present case, the risk of an erroneous deprivation of the plaintiffs property interest under the grievance procedures in the collective bargaining agreement was minimal. Article XXV of the collective bargaining agreement, entitled “Grievance and Arbitration Procedure,” provided the following: “Any grievance arising between the City and the Union or any employee shall be settled in the following manner:

“A. The aggrieved employee and/or Union Steward shall attempt to adjust the grievance with the employee’s immediate supervisor within ten (10) working days after the grievance arose.

“B. If a satisfactory adjustment of the grievance is not effected with such supervisor, the employee and/or the Union Steward shall submit a statement of the grievance in writing to the Commissioner of Public Works . . . .The employee and the Union’s business representative or the Union Steward shall then take the grievance up with the Commissioner of Public Works . . . and a decision thereon shall be given to the Business Representative within five (5) working days after termination of this meeting in writing. . . .

“D. At the request of the City or the Union, any grievance not settled as the result of the procedure provided for above shall be submitted to the Connecticut Board of Mediation and Arbitration who shall hear the grievance according to its rules and regulations. . . .

“E. The procedures set forth herein for settlement of grievances and/or the review of disciplinary action shall be the exclusive method of settlement of grievances and/or the review of disciplinary action.”

Pursuant to the agreement, the plaintiff, through the union or by his own initiation, was afforded two meetings with city officials in order to attempt to resolve his grievance. The plaintiff was represented by his union representatives at both meetings, one with the deputy commissioner, which lasted forty-five minutes, and one with the commissioner, which lasted one and one-half hours. After the second meeting, the plaintiffs union representatives discussed whether the union should submit the plaintiffs claim to the Connecticut board of mediation and arbitration. Thereafter, the union decided not to take the claim to arbitration because, in its opinion, the case was too weak.

The union, however, did not have unfettered discretion when deciding whether to take the plaintiff’s grievance to arbitration. As the exclusive bargaining representative of the plaintiff, the union had the right and obligation to act for the plaintiff and to represent his interests. See General Statutes § 7-468. As such, it was required to act on the plaintiffs behalf in his best interest. A union must represent its members in good faith. See Air Line Pilots Assn. International v. O’Neill, 499 U.S. 65, 111 S. Ct. 1127, 113 L. Ed. 2d 51 (1991); Vaca v. Sipes, 386 U.S. 171, 177, 87 S. Ct. 903, 17 L. Ed. 2d 842 (1967). If an employee’s grievance has merit, the union must proceed to arbitration. “[A] union may not arbitrarily ignore a meritorious grievance or process it in a perfimctory fashion. . . .” Vaca v. Sipes, supra, 191. In this context, pursuant to the grievance procedures, the plaintiff, through the union, did have an opportunity to be heard by an impartial decisionmaker, namely, the Connecticut board of mediation and arbitration. That opportunity was limited, however, by the union’s discretion as to which grievances to submit to arbitration, which was, in turn, informed by the union’s duty to represent the plaintiff in good faith. If a union fails to submit a meritorious grievance to arbitration, an employee may sue the union for breach of its duty of fair representation. See id., 177; see also Winston v. United States Postal Service, 585 F.2d 198, 208 (7th Cir. 1978).

Accordingly, we conclude that there was a minimal risk of an erroneous deprivation of the plaintiff’s property interest through the grievance procedures in the collective bargaining agreement. First, under the agreement, the plaintiff was afforded two mandatory meetings between the union and city officials where the union, representing the plaintiffs interests, presented the merits of his grievance to city officials. Both the union and the employer understood that if the dispute was not resolved, each side had the right to submit the grievance to arbitration. Since an impartial arbitration board was always available as a forum to resolve the grievance, each side had an incentive to deal fairly and honestly in resolving the dispute, thereby minimizing the risk that the plaintiff would be erroneously and arbitrarily deprived of his property. Furthermore, the union had an added incentive to fight zealously for meritorious claims, since a dissatisfied employee could sue the union for breach of its duty of fair representation. In light of the minimal risk of an erroneous deprivation of the plaintiff’s property right under the collective bargaining agreement, we find that the value of additional or substitute procedural safeguards was limited. Indeed, additional procedures may have adversely affected the labor relations process, thereby adversely affecting the plaintiff.

The plaintiff claims, nonetheless, that due process required that the defendant should have afforded him a hearing, regardless of the union’s discretion to decide which grievances to take to arbitration pursuant to the collective bargaining agreement. We disagree. Requiring the city to give each aggrieved employee a separate hearing despite the union’s decision not to take a grievance to arbitration would effectively dispense with the union’s right to screen grievances; see Vaca v. Sipes, supra; and would bypass the grievance procedures that are set in place for the employee’s benefit. The practical result of allowing a separate hearing for the employee outside of what is provided for in the collective bargaining agreement would be to allow an employee to compel arbitration even if the union determines that the grievance is meritless. This result would not only undermine the union’s control over the grievance process, but would be contrary to the United States Supreme Court decision in Vaca v. Sipes, supra, 177.

In Vaca, an employee, claiming to have been wrongfully discharged by his employer in violation of the collective bargaining agreement, filed a grievance with his union. After processing the employee’s claim through four steps of the grievance process afforded by the collective bargaining agreement, the union refused to submit the employee’s claim to arbitration. The employee brought suit against the union, claiming that the union had breached its duty of fair representation in its handling of his grievance. The court held that an employee does not have “an absolute right to have his grievance taken to arbitration . . . .’’Id., 191. The court noted that “[i]n providing for a grievance and arbitration procedure which gives the union discretion to supervise the grievance machinery and to invoke arbitration, the employer and the union contemplate that each will endeavor in good faith to settle grievances short of arbitration. Through this settlement process, frivolous grievances are ended prior to the most costly and time-consuming step in the grievanee procedures. Moreover, both sides are assured that similar complaints will be treated consistently, and major problem areas in the interpretation of the collective bargaining contract can be isolated and perhaps resolved. And finally, the settlement process furthers the interest of the union as statutory agent and as coauthor of the bargaining agreement in representing the employees in the enforcement of that agreement. See Cox, Rights Under a Labor Agreement, 69 Harv. L. Rev. 601 (1956).” Id.

The court reasoned further: “If the individual employee could compel arbitration of his grievance regardless of its merit, the settlement machinery provided by the contract would be substantially undermined, thus destroying the employer’s confidence in the union’s authority and returning the individual grievant to the vagaries of independent and unsystematic negotiation. Moreover, under such a rule, a significantly greater number of grievances would proceed to arbitration. This would greatly increase the cost of the grievance machinery and could so overburden the arbitration process as to prevent it from functioning successfully. See NLRB v. Acme Industrial Co., 385 U.S. 432, 438 [87 S. Ct. 565, 17 L. Ed. 2d 495 (1967)]; Ross, Distressed Grievance Procedures and Their Rehabilitation, in Labor Arbitration and Industrial Change, Proceedings of the 16th Annual Meeting, National Academy of Arbitrators 104 (1963).” (Emphasis added.) Id., 191-92.

The court concluded: “It can well be doubted whether the parties to collective bargaining agreements would long continue to provide for detailed grievance and arbitration procedures ... if their power to settle the majority of grievances short of the costlier and more time-consuming steps was limited by a rule permitting the grievant unilaterally to invoke arbitration. Nor do we see substantial danger to the interests of the individual employee if his statutory agent is given the contractual power honestly and in good faith to settle grievances short of arbitration. . . . The dampening effect on the entire grievance procedure of this reduction of the union’s freedom to settle claims in good faith would surely be substantial. Since the union’s statutory duty of fair representation protects the individual employee from arbitrary abuses of the settlement device by providing him with recourse against [his] . . . union, this severe limitation on the power to settle grievances is neither necessary nor desirable.” Id., 192-93.

We conclude that under the balancing test set forth in Mathews v. Eldridge, supra, the plaintiff received all the process that he was due. We recognize that the employee’s interest in his employment is great. That interest, however, is tempered by the government’s interest in an orderly termination process, the minimal risk of an erroneous deprivation of the plaintiff’s property interest under the grievance procedures in the collective bargaining agreement, the minimal incremental value of additional or substitute procedural safeguards and the adverse effect additional procedures would have on the labor relations process.

Our conclusion that the plaintiffs due process rights were satisfied in this case is an accord with the conclusions of other jurisdictions. See Parrett v. Connersville, 737 F.2d 690 (7th Cir. 1984); Lewis v. Hillsborough Transit Authority, 726 F.2d 664 (11th Cir. 1983); Jackson v. Temple University, 721 F.2d 931 (3d Cir. 1983); Winston v. United States Postal Service, 585 F.2d 198 (7th Cir. 1978); Pennsylvania Social Services Union v. Pennsylvania Board of Probation & Parole, 508 A.2d 360 (Pa. Cmwlth. 1986); Hanson v. Madison Service Corporation, 150 Wis. 2d 828, 443 N.W.2d 315 (Wis. App. 1989).

In Winston v. United States Postal Service, supra, 208, the United States Court of Appeals for the Seventh Circuit noted that “[vjesting the Union with control of all grievances increases the likelihood of uniformity and reduces ‘a potential source of competitions and discriminations that could be destructive of the entire structure of labor relations in the plant.’ It prevents dissident minorities from pressing real or imagined grievances in an effort to squeeze the last drop of competitive advantage out of each grievance.” Finally, the court noted that “[ajilowing an individual to compel arbitration whenever he is dissatisfied with the company-union adjustment would discourage day-to-day cooperation between union and company in which grievances are treated as problems to be solved. Public officials and arbitrators, as well as employers, constantly remind union officials that they have a duty to discountenance disruptive and frivolous claims. If they are to accept this responsibility, union officials should be given the power to make their decisions effective.” Id. The court further noted that “[ajlthough their representative declined their requests to demand arbitration, appellants could have sued the Union for breach of its duty to fairly represent them if the refusal to demand arbitration was not in good faith. 39 U.S.C. § 1208 (c); Vaca v. Sipes, supra at 194-95, 87 S. Ct. at 918-19.” Id., 210. The same considerations apply to this case.

The judgment is reversed and the case is remanded to the Appellate Court with direction to remand the case to the trial court with direction to render judgment in favor of the defendant.

In this opinion the other justices concurred.

       This is the fourth time this case has been before an appellate court. See Tedesco v. Stamford, 20 Conn. App. 51, 563 A.2d 1046 (1989), rev’d, Tedesco v. Stamford, 215 Conn. 450, 576 A.2d 1273 (1990), on remand, Tedesco v. Stamford, 24 Conn. App. 377, 588 A.2d 656 (1991).

       Benjamin Tedesco died on January 30, 1988, and we granted permission to substitute his executrix, Anita Docimo, as plaintiff. See Tedesco v. Stamford, 215 Conn. 450, 454 n.5, 576 A.2d 1273 (1990). We refer to Benjamin Tedesco as the plaintiff.

       Title 42 of the United States Code, § 1983 provides: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State of Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.”

       The first count of the plaintiff’s complaint named as defendants the city of Stamford, the city’s personnel appeals board and the cochairman of the board. We treat these defendants collectively as the city of Stamford. See Tedesco v. Stamford, 215 Conn. 450, 451 n.2, 576 A.2d 1273 (1990).

       The plaintiff’s position was classified as Laborer 1 in the sanitation department of the defendant’s department of public works. His primary responsibility entailed removing trash from the street curb and placing it in a sanitation truck.

       The record of absenteeism showed that the plaintiff had been out of work for periods of time totaling more than two years out of the fifteen years he had worked for the city.

       On July 1,1980, the defendant and the union had entered into a collective bargaining agreement in which the defendant recognized the union as the exclusive bargaining agent of the employees in the public works department. Pursuant to this agreement, “the employee and the Union’s business representative . . . shall . . . take the grievance up with the Commissioner of Public Works . . . and a decision thereon shall be given to the Business Representative within five (5) working days after termination of this meeting in writing.” Lamberti testified that the meetings he had had with the city officials took place pursuant to the grievance procedures in the collective bargaining agreement.

       “The second count of the complaint, directed against the plaintiffs union for failing to prosecute his grievance before the Connecticut board of mediation and arbitration, and the third count, directed at the city for refusing to permit the plaintiff to pursue the collective bargaining agreement grievance procedures in his own behalf, were dismissed by the trial court, and their dismissal has not been challenged on appeal. Similarly, the plaintiff has not raised on appeal the failure of the trial court to render judgment on the fourth count of his complaint, which the defendants claimed had not been properly added by amendment.” Tedesco v. Stamford, 215 Conn. 450, 454 n.4, 576 A.2d 1273 (1990).

       On January 21, 1987, just before the trial was scheduled to begin, the union filed a motion to stay the proceedings to allow the union and the city to arbitrate the plaintiff s grievance before the Connecticut board of mediation and arbitration. The trial court, Lewis, J., granted the motion. Following a hearing, the Connecticut board of mediation and arbitration, on September 21,1987, converted the plaintiff’s termination to a suspension without pay and ordered the defendant to reinstate the plaintiff to the position of laborer “on the condition that prior to his reinstatement he be examined by a mutually agreed upon physician who certifies that the grievant is physically able to perform the job.” Prior to trial in the present case, the trial court, Cioffi, J., denied the union’s motion to confirm the arbitration award on the ground that the arbitration proceeding was untimely. On January 3, 1990, however, the trial court, Landau, J., confirmed the award.

       The defendant also claims that the Appellate Court improperly concluded that the 1987 decision of the Connecticut board of mediation and arbitration did not satisfy the plaintiffs right to due process. The plaintiff claims, to the contrary, that the arbitration hearing violated his procedural due process rights. See footnote 9, supra. Because we conclude that the grievance procedures in the collective bargaining agreement satisfied the plaintiffs right to due process, we need not consider either of these claims.

       The plaintiff also claims that he was entitled to a hearing pursuant to a certain provision in the Stamford city charter. This issue is beyond the issues certified and, therefore, will not be addressed.

       “Generally speaking, courts have recognized a property interest if, by statute, rule or contract, express or implied, the employee can only be fired for ‘cause,’ e.g., Arnett v. Kennedy, 416 U.S. 134, 94 S. Ct. 1633, 40 L. Ed. 2d 15 (1974).... Ventetulo v. Burke, 470 F. Sup. 887, 891 (D.R.I. 1978), aff’d, 596 F.2d 476 (1st Cir. 1979). The plaintiff, therefore, has a property interest that is protected by due process.” (Internal quotation marks omitted.) Bartlett v. Krause, 209 Conn. 352, 367, 551 A.2d 710 (1988).

       The Appellate Court correctly concluded that the United States Supreme Court decision of Cleveland Board of Education v. Loudermill, 470 U.S. 532, 105 S. Ct. 1487, 84 L. Ed. 2d 494 (1985), cannot be applied retroactively in this case. In Loudermill, the United States Supreme Court held that before an employee with a property interest in his continued employment can be terminated, he is entitled to an informal pretermination hearing. Id., 542-43. In Zinker v. Doty, 907 F.2d 357, 361 (2d Cir. 1990), the Second Circuit Court of Appeals determined that Loudermill did not declare existing law, but rather established new law and, therefore, pretermination hearings were not constitutionally mandated prior to the date of the Loudermill decision. Since the plaintiff’s employment in the present case was terminated prior to the decision in Loudermill, he was not constitutionally entitled to a pretermination hearing. Even if we were to apply Loudermill retroactively, however, it is unclear whether that decision would be controlling since Loudermill did not consider what process a public employee is due when there are union grievance procedures set in place by a collective bargaining agreement.

       There can be no question that collective bargaining through union representation is beneficial to employees. Most collective bargaining agreements “have provisions governing wages, hours, discipline, promotions, medical and health insurance, pensions, vacations and holidays, work assignments, seniority and the like.” R. Gorman, Labor Law—Basic Text (1976) p. 540. Collective bargaining “provides the worker with a system of industrial government or industrial jurisprudence which protects his rights and privileges in his workplace.” M. Wortman & C. Randle, Collective Bargaining (2d Ed. 1966) pp. 4-5.

       The plaintiff argues that the provisions of the collective bargaining agreement do not apply because they are silent on the matter of termination of an employee. In support of this claim, the plaintiff notes that the collective bargaining agreement does not define the term “grievance.” The plaintiff is apparently arguing, therefore, that since it is unclear whether a termination is a grievance, the union grievance procedures in the collective bargaining agreement do not apply. It is hard to imagine, however, any employer action that would more aptly give rise to a grievance than a termination. Indeed, the plaintiff filled out a grievance form and submitted it to his union representative, who pursued it through the grievance process. Therefore, the collective bargaining agreement did provide procedures for resolving a disputed termination.

       Pursuant to the collective bargaining agreement, the union was not required to submit the plaintiff’s grievance to the arbitration board. Article XXV (D) of the agreement provided that “[a]t the request of the City or the Union, any grievance not settled as the result of the procedure provided for above shall be submitted to the Connecticut Board of Mediation and Arbitration . . . .’’(Emphasis added.) The union did not request arbitration in this case. See also Vaca v. Sipes, 386 U.S. 171, 177, 87 S. Ct. 903, 17 L. Ed. 2d 842 (1967) (employee has no absolute right to have his grievance taken to arbitration).

       General Statutes § 7-468 provides in pertinent part: “rights of EMPLOYEES AND REPRESENTATIVES. . . .
      “(b) When an employee organization has been designated by the state board of labor relations as the representative of the majority of the employees in an appropriate unit, or has been recognized by the chief executive officer of a municipal employer as the representative of the majority of employees in an appropriate unit, that employee organization shall be recognized by the municipal employer as the exclusive bargaining agent for the employees of such unit.

      “(c) When an employee organization has been designated in accordance with the provisions of sections 7-467 to 7-477, inclusive, as the exclusive representative of employees in an appropriate unit, it shall have the right to act for and to negotiate agreements covering all employees in the unit and shall be responsible for representing the interests of all such employees without discrimination and withmd regard to employee organization membership. ” (Emphasis added.)

       As one commentator has noted, “[u]nion control over the processing of grievances not only enhances union strength but also may be essential to it to the extent that grievance resolution is part of the ongoing collective bargaining process. . . . That benefits in employee welfare result from union power is an assumption that has had a powerful influence in the development of private sector doctrine and it should be a consideration in any due process analysis as well.
      “A second, more important justification for the union’s control over the grievance process is that theoretically it enhances the process itself. By weeding out frivolous grievances, the union may be increasing the overall chance of success of a meritorious grievance. An employee simply stands a better chance of fair treatment if both parties retain confidence in an efficient grievance resolution system.” Note, “Public Sector Grievance Procedures, Due Process, and the Duty of Fair Representation,” 89 Harv. L. Rev. 752, 788-84 (1976).

       We do not hold that the existence of grievance procedures in a collective bargaining agreement automatically satisfies an employee’s right to due process. Each “collective [bargaining] agreement must withstand constitutional examination.” M. Finkin, “The Limits of Majority Rule in Collective Bargaining,” 64 Minn. L. Rev. 183, 255 (1980). Furthermore, while other jurisdictions have held that the provisions of the collective bargaining agreement constitute a waiver of an employee’s right to due process, we do not so hold. See Gorham v. Kansas City, 225 Kan. 369, 590 P.2d 1051 (1979); Thompson v. Unified School District No. 259, Wichita, 16 Kan. App. 2d 42, 819 P.2d 1236 (1991); Antinore v. State, 49 App. Div. 2d 6, 371 N.Y.S.2d 213 (1975), aff'd, 40 N.Y.2d 921, 358 N.E.2d 268, 389 N.Y.S.2d 576 (1976); Pennsylvania Social Services Union v. Pennsylvania Board of Probation & Parole, 508 A.2d 360 (Pa. Cmwlth. 1986); but see Phillips v. California State Personnel Board, 184 Cal. App. 3d 651, 229 Cal. Rptr. 502 (1986); Brady v. Board of Trustees of the Nebraska State Colleges, 196 Neb. 226, 242 N.W.2d 616 (1976); see also M. Finkin, supra.


author: Santaniello, J.

text:
    Michael Iovieno v. Commissioner of Correction
    (14278)
    Peters, C. J., Shea, Glass, Covello and Santaniello, Js.
    Argued February 13
    decision released June 2, 1992

      Carolyn Koch, with whom were PamelaMitchell and, on the brief, James Moreno, for the plaintiff in error.

      Mitchell S. Brody, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Christopher Alexy, assistant state’s attorney, for the defendant in error.
   Santaniello, J.

The dispositive issue in this appeal is whether, pursuant to General Statutes § 52-470 (b), a habeas court has discretion to consider an untimely filed petition for certification to appeal. We conclude that under the factual circumstances of this case, the statute does not authorize any such discretion.

The underlying facts are established by the habeas court’s memorandum of decision. After a jury trial, the plaintiff in error, Michael Iovieno (plaintiff), was found guilty of three counts of the crime of burglary in the second degree, one count of the crime of unlawful restraint in the first degree, and one count of the crime of sexual assault in the first degree. He was sentenced to a total effective sentence of twenty-five years. The plaintiff appealed this decision to the Appellate Court, which found error in part and remanded the case to the trial court with direction to render a judgment of acquittal on one of the burglary counts. State v. Iovieno, 14 Conn. App. 710, 543 A.2d 766, cert. denied, 209 Conn. 805, 548 A.2d 440 (1988). This judgment was rendered on October 13, 1988.

The plaintiff then filed an amended petition for a writ of habeas corpus, alleging that his incarceration was illegal because evidence had been illegally seized and because he had been denied effective assistance of counsel. The habeas court found that the plaintiff had not deliberately bypassed the avenue of direct appeal concerning his claims of illegal search and seizure. It declined, however, to consider the search and seizure claims, relying on the rule stated in Stone v. Powell, 428 U.S. 465, 96 S. Ct. 3037, 49 L. Ed. 2d 1067 (1976). As to the ineffective assistance of counsel claim, the habeas court concluded that the performance of Iovieno’s trial counsel was substandard. It dismissed the habeas petition, however, concluding that there was no reasonable probability that, but for counsel’s performance, the result of the criminal trial proceedings would have been different.

The habeas court’s memorandum of decision dismissing the petition was. dated February 15,1991, and was filed on February 22, 1991. Counsel for the plaintiff stated that he had received notice of the decision on February 26,1991. On March 8,1991, the plaintiff filed a petition with the habeas court for certification to appeal this decision. The respondent (defendant) filed an objection to the petition. Following a hearing on the issue of timeliness, the court denied permission to appeal concluding that the appeal petition had not been timely filed within ten days of the underlying decision as required by General Statutes § 52-470 (b). No request for extension of the time within which to file the petition had been made. The plaintiff has brought the present writ of error challenging the denial of certification to appeal.

Section 52-470 (a) provides, in pertinent part, that “[t]he court or judge hearing any habeas corpus shall proceed ... to determine the facts and issues of the case . . . and shall thereupon dispose of the case as law and justice require.” (Emphasis added.) Section 52-470 (b) provides, in pertinent part, that u[n]o appeal from the judgment rendered in a habeas corpus proceeding . . . may be taken unless the appellant, within ten days after the case is decided, petitions the judge before whom the case was tried ... to certify that a question is involved in the decision which ought to be reviewed by the court having jurisdiction and the judge so certifies.” (Emphasis added.) According to the plaintiff, the habeas court incorrectly concluded that this statute allows no discretion to the habeas court to consider an untimely petition for certification to appeal. In support of his position, the plaintiff cites numerous decisions in which a petitioner filed an untimely petition for certification to appeal that was granted by the habeas court. The plaintiff also relies upon general equitable principles that state that “the writ of habeas corpus ‘holds an honored position in our jurisprudence . . . [as] a bulwark against convictions that violate “fundamental fairness.” ’ Engle v. Issac, 456 U.S. 107, 126, 102 S. Ct. 1558, 71 L. Ed. 2d 783, reh. denied, 456 U.S. 1001, 102 S. Ct. 2286, 73 L. Ed. 2d 1296, and reh. denied, 457 U.S. 1141, 102 S. Ct. 2976, 73 L. Ed. 2d 1361 (1982) . . . .” Gaines v. Manson, 194 Conn. 510, 516, 481 A.2d 1084 (1984); see also State v. Robinson, 10 Conn. App. 520, 523, 523 A.2d 1365, cert. denied, 204 Conn. 807, 528 A.2d 1154 (1987), cert. denied, 488 U.S. 899, 109 S. Ct. 244, 102 L. Ed. 2d 233 (1988). The plaintiff refers to our statement in Gaines v. Manson, supra, 528, that “[i]n the exercise of its power under § 52-470 to grant such relief ‘as law and justice require,’ the trial court, much like a court of equity, has considerable discretion to frame a remedy, so long as that remedy is commensurate with the scope of the constitutional violations which have been established.” Applying these principles to the present case, the plaintiff argues that the broad mandate of power contained in § 52-470 (a), to “dispose of the case as law and justice require,” implicitly extends to § 52-470 (b), and allows the court discretion to consider a petition for certification not filed within the ten daytime frame provided for in § 52-470 (b). We disagree.

‘‘[I]f the‘statutory language . . . is clear and unambiguous . . . courts cannot, by construction, read into such statutes provisions which are not clearly stated.’ Frazier v. Manson, 176 Conn. 638, 642, 410 A.2d 475 (1979).” Chairman v. Freedom of Information Commission, 217 Conn. 193, 200, 585 A.2d 96 (1991). Furthermore, “[w]hen construing a statute, we do not interpret some clauses in a manner that nullifies others, but rather ‘ “read the statute as a whole and so as to reconcile all parts as far as possible.” ’ Martone v. Lensink, 207 Conn. 296, 302, 541 A.2d 488 (1988); Grodis v. Burns, 190 Conn. 39, 44, 459 A.2d 994 (1983).” Statewide Grievance Committee v. Rozbicki, 211 Conn. 232, 241, 558 A.2d 986 (1989). With these principles in mind, we again note that under § 52-470 (a), the habeas court is provided with considerable discretion to “dispose of the case as law and justice require.” The fact that the legislature specifically declined to include this discretionary language in § 52-470 (b) is strong evidence that the habeas court has no discretion in dealing with appeals under § 52-470 (b). See Chairman v. Freedom of Information Commission, supra (applying the maxim, “expressio unius est exclusio alterius”). “ ‘A statute which provides that a thing shall be done in a certain way carries with it an implied prohibition against doing that thing in any other way.’ State ex rel. Barlow v. Kaminsky, 144 Conn. 612, 620, 136 A.2d 792 (1957) . . . Chairman v. Freedom of Information Commission, supra, 200. We conclude, from the plain language of § 52-470, that the habeas court was correct in concluding that it had no discretion to consider an untimely petition for certification to appeal.

Furthermore, even if it is assumed that § 52-470 is ambiguous, and therefore needs to be construed, this result remains unchanged. “The factors that this court looks to in construing a statute include ‘its legislative history, its language, the purpose it is to serve, and the circumstances surrounding its enactment.’ ” Verrastro v. Sivertsen, 188 Conn. 213, 221, 448 A.2d 1344 (1982). In 1957, the legislature amended § 52-470; see Public Acts 1957, No. 482; to include a provision regarding certification to appeal a habeas decision. The legislative history of Public Acts 1957, No. 482 indicates that the portion of Senate Bill 1100 that added this provision was intended, as noted by Senator John H. Filer, “to reduce successive frivolous appeals in criminal matters and hasten ultimate justice without repetitive trips to the Supreme Court of Errors.” 7 S. Proc., Pt. 5,1957 Sess., p. 2936. “ ‘Although statements made on the floor of the legislature are not controlling on statutory interpretation, we may take judicial notice of those statements, which are strong indications of legislative intent. American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 195 n.8, 530 A.2d 171 (1987); Manchester Sand & Gravel Co. v. South Windsor, 203 Conn. 267, 276, 524 A.2d 621 (1987); Verrastro v. Sivertsen, supra, 223 n.9.’ Winchester Woods Associates v. Planning & Zoning Commission, 219 Conn. 303, 310-11, 592 A.2d 953 (1991).” West Haven v. Hartford Ins. Co., 221 Conn. 149, 159, 602 A.2d 988 (1992).

During discussion on the Senate floor concerning the amendment, Senator Elmer S. Watson read into the record a letter from former Chief Justice William M. Maltbie expressing concern over the delay in the executions for first degree murder. The letter stated, inter alia: “There are . . . two means which have been used to delay the execution of the death sentence and which . . . may properly be subjected to more regulation than now exists. One of these is the petition for a new trial for ... newly discovered evidence, with an appeal to the Supreme Court, if it is denied. It has seemed to me that such petitions have been used in certain instances, not because they had any merit, but in a calculated effort to delay the imposition of the penalty. . . . The other means by which, I feel, unjustifiable delay has been caused is through the use of the writ of habeas corpus. Of course both the constitution of Connecticut and the constitution of the United States . . . contain guarantees . . . the effect of which is that any person may at any time bring the writ claiming an illegal confinement. An appeal from the decision of the court or judge on such a writ is not, however, within the constitutional guarantees. Very much the same considerations apply to the limitation of appeals in habeas corpus proceedings in criminal cases as I have suggested with reference to petitions for new trials.” 7 S. Proc., Pt. 5, 1957 Sess., pp. 2938-39.

To remedy the problem, Chief Justice Maltbie suggested an amendment to the effect that no such appeal “shall be taken unless the judge before whom the case was tried or a justice of the supreme court of errors shall, within one week after the case was decided, certify that a question was involved in the decision which ought to be reviewed by the supreme court of errors.” Id., pp. 2939-40. The amendment was adopted, modified only to the extent of allowing ten days rather than one week for certification.

Section 52-470 was thereafter amended again. Public Acts 1967, No. 182 amended the section to require the appellant to petition for certification within ten days after the case is decided rather than requiring the judge to certify within that period. The statute was again amended in 1982; see Public Acts 1982, No. 82-160, § 171; changing the word “shall” to “may” in § 52-470 (b), so that the statute now provides that “[n]o appeal . . . may be taken unless the appellant, within ten days . . . petitions the judge . . . .’’(Emphasis added.) The plaintiff contends that the 1982 change evinces the intent of the legislature to make this section discretionary rather than mandatory. A review of the legislative history of this amendment, however, reveals no such intent. On the contrary, the history is silent as to why the word “shall” was changed to “may.”

“ ‘ “In construing a statute, common sense must be used, and courts will assume that the legislature intended to accomplish a reasonable and rational result.” ’ King v. Board of Education, 203 Conn. 324, 332-33, 524 A.2d 1131 (1987); Gentry v. Norwalk, 196 Conn. 596, 606, 494 A.2d 1206 (1985).” Ford Motor Credit Co. v. B. W. Beardsley, Inc., 208 Conn. 13, 20, 542 A.2d 1159 (1988). We conclude that the 1982 amendment was not intended to change § 52-470 (b) from mandatory to discretionary. Rather, it involved a technical rewording and clarification of the statute. The word “shall,” present in the statute prior to the amendment, did not logically belong, because it did not follow that a person would necessarily appeal the habeas decision. The amendment makes it clear that a person who does, in fact, appeal, must petition the judge for certification within ten days.

Neither the plain language of § 52-470, nor its legislative history, supports the plaintiff’s claim that the court has discretion to consider an untimely petition for certification to appeal. We therefore conclude that the court was correct in denying the petition for certification to appeal. Furthermore, as previously noted, the plaintiff never filed a motion for extension of time within which to petition for certification to appeal. Given the circumstances of this case, we hold that the habeas court was correct in concluding that it lacked the discretion to consider the untimely petition for certification to appeal.

The judgment is affirmed.

In this opinion the other justices concurred.

       General Statutes § 52-470 (b) provides: “No appeal from the judgment rendered in a habeas corpus proceeding brought in order to obtain his release by or in behalf of one who has been convicted of crime may be taken unless the appellant, within ten days after the case is decided, petitions the judge before whom the case was tried or a judge of the supreme court or appellate court to certify that a question is involved in the decision which ought to be reviewed by the court having jurisdiction and the judge so certifies.”

       In Stone v. Powell, 428 U.S. 465, 494, 96 S. Ct. 3037, 49 L. Ed. 2d 1067 (1976), the United States Supreme Court held that “where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial.” The habeas court found that this rule applied to search and seizure claims raised pursuant to the Connecticut constitution.

       Further support for this conclusion may be found in the title of the amendment, “An Act Adopting a Technical Revision of Title 52.” Public Acts 1982, No. 82-160.

       In Giordano Construction Co. v. Ross, 182 Conn. 577, 579, 438 A.2d 772 (1980), we stated that “an implied power exists in the trial court to grant an extension of time within which to take an appeal even though no express power is contained in the appeal statute . . . so long as the motion for an extension of time is filed within the time specified in the statute or rule for the taking of the appeal.”

       In view of this holding, it is unnecessary to consider the plaintiffs additional claim that, pursuant to Practice Book §§ 6 and 4187, under which the rules of court are to be interpreted liberally, the habeas court had discretion to consider an untimely filed petition for certification to appeal. For the same reason, we need not consider the plaintiff’s claim that we use our supervisory authority under Practice Book § 4183 to reinstate the plaintiffs right to appeal. “ ‘[T]he conditions required by statute as precedent to taking and perfecting an appeal cannot ... be modified or extended by any judge or court without express statutory authority.’ ” Etchells v. Wainwright, 76 Conn. 534, 538, 57 A. 121 (1904). We note, however, that our decision is in accord with Practice Book § 2028, which provides that a petition for certification to appeal to the Appellate Court “shall be made within ten days after the case is decided . . . .”