author: Peters, C. J.

text:
    John T. Brady and Company et al. v. City of Stamford et al. Urban Redevelopment Commission of the City of Stamford et al. v. Federal Insurance Company et al.
    (14284)
    Peters, C. J., Callahan, Covello, Borden and Berdon, Js.

      Argued September 26
    decision released November 19, 1991

      William J. Egan, with whom, on the brief, was Thomas R. Legenhausen, for the appellants-appellees (Urban Redevelopment Commission of the city of Stamford et al.).

      Scott D. St. Marie, pro hac vice, with whom was William J. Pastore, for the appellees-appellants (Federal Insurance Company et al.).

      Richard L. Albrecht, with whom, on the brief, was Gabriel Miller, for the appellee-appellant (John T. Brady and Company).
   Peters, C. J.

In this action for breach of a commercial construction contract, the principal issue is whether the trial court, in its evidentiary rulings and its instructions to the jury, assigned proper weight to the terms of three contracts consecutively negotiated by the parties. The appeal arises out of two lawsuits that were consolidated for trial. The first was an action brought by the plaintiffs, John T. Brady and Company (contractor), and its surety and assignee, Federal Insurance Company (surety), to recover the unpaid portion of the contract price and the price of certain alleged contract extras from the defendant, the Connecticut Urban Redevelopment Commission of the city of Stamford (owner). The second was an action brought by the owner and Rich-Taubman Associates (redeveloper) to recover damages from the contractor and the surety because of the contractor’s alleged failure to comply with contract specifications in timely fashion. The jury found in favor of the contractor and the surety in both actions, awarding them jointly $2,612,098.84 plus interest in the amount of $1,456,520.49. Following the trial court’s denial of motions by the owner and the redeveloper to set aside the verdict and for judgment notwithstanding the verdict, the owner and the redeveloper appealed to the Appellate Court and the surety and the contractor cross appealed. We transferred the appeals to this court in accordance with Practice Book § 4023 and now reverse.

The litigation arises out of a contract between the owner and the contractor, John T. Brady and Company, for the construction of a regional shopping center and garage known as the Stamford Town Center (the project). The contractor undertook to build a nine story parking garage and the shell of an adjacent enclosed shopping mall that the redeveloper was to complete and operate. The named surety and four reinsurance companies issued a performance bond underwriting the performance of the contract. The owner and the contractor agreed on a contract price, as amended, of $36,014,993, of which the contractor has been paid $33,028,201.

Three interrelated contracts memorialized the agreement between the owner and the contractor. These contracts consisted of: the underlying construction contract, executed on December 19, 1978, prior to the commencement of construction; the settlement agreement, executed on September 28,1981, when the project was 94 percent complete; and the completion agreement, executed on June 1,1982, when the project was 99 percent complete.

The construction contract incorporated relevant drawings and specifications for the project, for which the owner agreed to pay the designated contract price. The contract stipulated that time was of the essence, set January 20,1981, as the date for completion of the project, and contained a clause liquidating damages in the amount of $3000 each day for any delay after the completion date. The contract defined substantial completion of the project as including the issuance of a final certificate of occupancy. Further, the contract indicated that the contractor would not be entitled to final payment until all of its work had been accepted by the owner.

In order to resolve substantial disagreements about delay in the performance of the contract and responsibility for extra work, the parties negotiated a settlement agreement on September 28,1981, eight months after the completion date contained in the construction contract. The settlement agreement provided, inter alia, that: (1) the owner would pay the contractor $2,250,000; (2) the contractor immediately released the owner from all claims arising prior to that time; (3) the owner immediately waived any claim for liquidated damages until after January 20, 1982; (4) the owner agreed to waive its claim for actual damages due to delay, stipulated by the parties to amount to $800,000, if the contractor substantially completed the project by January 20, 1982; and (5) the parties agreed that the completion date could be extended under specified circumstances.

The project was not completed by the revised completion date of January 20,1982. Relying on the extension provision in the settlement agreement, the contractor maintained that this delay resulted from the absence of timely instructions and the issuance of belated change orders. Because the owner disagreed with the validity of these claims, it paid the contractor only $1,375,000 of the additional $2,250,000 promised in the settlement agreement, and refused to waive the $800,000 in actual delay damages stipulated in that agreement. The resultant financial difficulties led the contractor, in March of that year, to assign its contract rights to the surety, which thereupon began funding further work on the project.

On June 1, 1982, the owner, the contractor and the surety entered into the completion agreement. By the terms of that contract: (1) the surety agreed to finance the resumption of work on the project so that it could be completed by July 9,1982; (2) the owner agreed to waive any claim for delay damages sustained between the new completion date and the prior revised completion date of January 20,1982; (3) the owner agreed to pay $1,000,000 upon substantial completion of the project by the new completion date; (4) the surety agreed to obtain releases of mechanic’s liens; and (5) the owner agreed to make monthly progress payments. Like the settlement agreement, the completion agreement provided that the new completion date could be extended for reasons enumerated in the agreement.

The project was not completed on July 9,1982. Alleging that certain important work remained undone or unaccepted, and that mechanic’s liens had not been released, the owner withheld further payments. On August 19, 1982, the contractor sued to recover the unpaid contract price and an additional amount representing the cost of alleged extra work. The complaint also contained a count for prejudgment interest. This cause of action, with the surety replacing the contractor as the real party in interest, is the first of the lawsuits before us on this appeal.

Despite the lawsuit, work continued on the project, resulting in the issuance of a temporary certificate of occupancy on October 22,1982. Maintaining that it had completed its work on the project, the contractor left the work site on January 5,1983. The owner continued to insist that there were uncorrected defects in the contractor’s performance. When the surety refused a request for further corrective work, the owner engaged another contractor to complete the project. This aspect of the controversy between the parties was the basis for the second cause of action before us, a suit by the owner and the redeveloper to recover liquidated and actual damages because of the contractor’s delay in completing the project, and actual damages because of the contractor’s allegedly unsatisfactory performance of the contract, in the total amount of $3,225,907.14 above and beyond the remaining balance on the contract price. Like that of the contractor and the surety in the first case, the complaint of the owner and the redeveloper included a claim for prejudgment interest.

The trial of these consolidated causes of action began with jury selection in April, 1989. The trial itself began on July 5, 1989, and continued until April 24, 1990, when the jury returned its verdict. Because of the volume and complexity of the pleadings, the court and the parties had agreed that the pleadings would not go to the jury. The trial court had rejected requests for interrogatories filed on behalf of the surety, the owner and the redeveloper. The jury returned a single verdict in both cases, finding that the surety was entitled to $2,612,098.84 plus interest in the amount of $1,456,520.49. The parties stipulated that they would accept the mathematical calculation of the interest by the jury. The trial court, having earlier denied the owner’s request for a directed verdict, also denied posttrial motions by the owner and the redeveloper for a mistrial, to set aside the verdict, and for judgment notwithstanding the verdict. The present appeal ensued.

I

The appeal by the owner and the redeveloper challenges: (1) the sufficiency of the evidence adduced to support a verdict on the first cause of action, and hence the propriety of the trial court’s denial of the owner’s motions for a directed verdict and for judgment notwithstanding the verdict; (2) the trial court’s evidentiary rulings and jury charge concerning the effect of the release provisions in the settlement agreement; and (3) five other statements of law contained in the charge to the jury. We disagree with the first of these claims, but agree that the trial court made so serious an error in its evidentiary rulings that a new trial is required. We will consider other aspects of the trial court’s charge only to the extent that such discussion is necessary to guide the court at a new trial.

A

The owner contends that the surety was not entitled to recover the balance of the contract price because the construction contract conditioned a right to final payment on “completion and acceptance of all work required [under the contract and] . . . upon certification by the Engineer and approval by the Owner” after payment of all subcontractors. The contract defined substantial completion as including the issuance of a final certificate of occupancy. Relying on Multi-Service Contractors, Inc. v. Vernon, 193 Conn. 446, 477 A.2d 653 (1984), the owner asserts that noncompliance with these contractual conditions defeats the surety’s claim as a matter of law. On this theory, the owner maintains that the trial court improperly denied its motions for directed verdict and for judgment notwithstanding the verdict. We are unpersuaded.

“Directed verdicts are not favored. Puro v. Henry, 188 Conn. 301, 303, 449 A.2d 176 (1982)[;] Petyan v. Ellis, 200 Conn. 243, 244, 510 A.2d 1337 (1986). Our review of a trial court’s refusal to direct a verdict or to render a judgment notwithstanding the verdict takes place within carefully defined parameters. We must consider the evidence, including reasonable inferences which may be drawn therefrom, in the light most favorable to the parties who were successful at trial; Bleich v. Ortiz, 196 Conn. 498, 501, 493 A.2d 236 (1985); giving particular weight to the concurrence of the judgments of the judge and the jury, who saw the witnesses and heard the testimony .... Chanosky v. City Building Supply Co., 152 Conn. 642, 643, 211 A.2d 141 (1965). The verdict will be set aside and judgment directed only if we find that the jury could not reasonably and legally have reached their conclusion. . . . Bound Brook Assn. v. Norwalk, 198 Conn. 660, 667, 504 A.2d 1047, cert. denied, 479 U.S. 819, 107 S. Ct. 81, 93 L. Ed. 2d 36 (1986) . . . .” (Internal quotation marks omitted.) Iseli Co. v. Connecticut Light & Power Co., 211 Conn. 133, 140, 558 A.2d 966 (1989).

In Multi-Service Contractors, Inc. v. Vernon, supra, 454, in contrast to this case, there was, on appeal, no factual dispute that delay in the contractor’s performance “was attributable to default on the part of the [contractor] rather than the [owner].” The only issue there was whether, despite its default, the contractor could avoid compliance with contractual conditions on its right to payment. We held that, “[i]n the absence of allegation or proof that the [contractor’s] noncompliance with the contract conditions was impracticable, or resulted from actions of the [owner] or its agents that were taken in bad faith, the [contractor had] failed to make out a case for equitable or restitutionary relief.” Id., 455. In this case, however, the surety maintains, and the jury impliedly found, that the owner’s conduct, including its withholding of payments, was a significant contributing factor in the problems encountered by the contractor in completing the project. It was ndt unreasonable for the trial court to determine that the surety had produced sufficient evidence on this disputed question of fact to leave its resolution to the jury.

B

The evidentiary claim of error raised by the owner and the redeveloper arises out of the express terms of the settlement agreement negotiated between the owner and the contractor on September 28, 1981. In response to the disputes that had led to its execution, the settlement agreement contained a number of provisions purporting to liquidate liabilities arguably accrued prior to its date. The parties agreed that, in return for two payments totaling $2,250,000, the contractor would release the owner from claims for extra work “through the date hereof.” In addition, the contractor unconditionally released the owner and redeveloper from liability “for damages because of hindrances, interference or delay from any cause in the progress of the work,” acknowledged that the owner had incurred actual delay damages of $800,000 to date, and attested that “as of the effective date hereof the Owner has fully met its obligations under the Contract.”

On July 3, 1989, prior to the commencement of the presentation of evidence, relying on these provisions, the owner and the redeveloper filed a motion in limine to preclude the surety from offering any evidence at trial attributing responsibility to the owner for delay in the project prior to September 28, 1981. The trial court refused to rule on this motion. Instead, for the first six weeks of trial, over timely and repeated objections, the surety was permitted, in its case-in-chief for recovery of the balance of the purchase price under the contract, to offer evidence to demonstrate that the owner bore the responsibility for delays in the project occurring before September, 1981. Repeated motions for mistrial on this ground were taken under advisement by the trial court. Not until August 23,1989, did the trial court rule that it would give effect to the relevant provisions of the settlement agreement. The trial court refused, however, to strike the evidence on this issue that had been previously admitted, and denied the consequent motions for mistrial, saying that it would deal with the problem in its instructions to the jury. In its jury instructions, the following April, the trial court included only the following brief reference to this evidence: “Also, I want to caution you, it has also been a very long trial and you heard a lot of things before the September agreement. Unless they become relevant again in my charge to you, you are to disregard those. So just let’s focus in on the issues to be given you in charge.”

The trial court should have granted the motion in limine, at least with respect to evidence presented in the surety’s case-in-chief to enforce the contractor’s contractual rights against the owner. Having abandoned the defense of duress, and thus pursuing a cause of action under the contract, the surety was bound by the unambiguous terms of the settlement agreement. Albert Mendel & Son, Inc. v. Krogh, 4 Conn. App. 117, 122-23, 492 A.2d 536 (1985); see also Daley v. Hartford, 215 Conn. 14, 574 A.2d 194, cert. denied, U.S. , 111 S. Ct. 513, 112 L. Ed. 2d 525 (1990). The improper admission of so much evidence to the contrary, over an extended period of time, would have been difficult to cure, many months later, even with an extended cautionary warning to the jury in the trial court’s final instructions. The curative instruction that was actually given failed effectively to communicate to the jury what evidence had been excluded and what remained for its consideration. In light of the consistent objections to this inadmissible evidence on the record of this case, a new trial is required in the interests of justice.

c

We will consider the remaining challenges to the instructions given by the trial court only insofar as may be necessary to provide guidance for a new trial. Two issues warrant brief discussion at this time: (1) the relationship between contractual provisions and ameliorating principles of common sense and equitable estoppel; and (2) the jury’s role in assessing prejudgment interest.

With respect to the first issue, the owner and the redeveloper contend that the instructions did not assign sufficient weight to the terms of the contracts negotiated by the parties. The instructions included a reference to the general principle that, absent bad faith or duress, contracting parties are free to impose conditions upon their contractual liability. Dills v. Enfield, 210 Conn. 705, 720-21, 557 A.2d 517 (1989); Grenier v. Compratt Construction Co., 189 Conn. 144, 148, 454 A.2d 1289 (1983); Brauer v. Freccia, 159 Conn. 289, 293-94, 268 A.2d 645 (1970); Strimiska v. Yates, 158 Conn. 179, 185, 257 A.2d 814 (1969). Nonetheless, throughout its charge, the trial court improperly directed the jury to focus on whether it found the conduct of the parties to be fair and equitable, rather than on whether it found that conduct to be consistent with a reasonable construction of the specific terms of the parties’ three interrelated contracts.

With reference to the particular issues before the jury, the court repeatedly invited the jury to exercise its “common sense” and to invoke principles of “equitable estoppel” without regard to the relevant contract provisions. The instructions ignored our repeated holdings that “silence will not operate as estoppel absent a duty to speak.” Hanover Ins. Co. v. Fireman’s Fund Ins. Co., 217 Conn. 340, 350, 586 A.2d 567 (1991); Eis v. Meyer, 213 Conn. 29, 34, 566 A.2d 422 (1989); State v. American News Co., 152 Conn. 101, 113, 203 A.2d 296 (1964); Flaxman v. Capitol City Press, Inc., 121 Conn. 423, 430, 185 A. 417 (1936). These instructions improperly deflected the attention of the jury away from the central controverted issues of fact about the performance of the parties in light of their intent as manifested in their written agreements.

With respect to the second issue, the trial court instructed the jury on the parties’ right to recover interest, in addition to damages, by leaving that issue to be resolved in the jury’s unfettered discretion. The parties correctly do not challenge the propriety of having the jury determine this issue, since interest, as an element of damages, is a factual question within the province of the jury. See, e.g., Iseli Co. v. Connecticut Light & Power Co., supra, 143-44; Canton Motorcar Works, Inc. v. DiMartino, 6 Conn. App. 447, 464, 505 A.2d 1255, cert. denied, 200 Conn. 802, 509 A.2d 516 (1986). The question remains whether, in leaving this issue to the jury, the trial court should expressly have required the jury to consider the various factors included in the request to charge filed by the owner and the redeveloper. While the request to charge may have been overly detailed, we urge the trial court, on retrial, to provide some guidelines for the deliberations of the jury more illuminating than a skeletonic reference to “the demands of justice.”

II

The surety has filed a cross appeal, raising two issues for us to decide if a new trial is to be ordered. The surety maintains that the trial court improperly precluded it from pursuing: (1) in its case-in-chief, a recovery measured by quantum meruit as an alternative to its recovery on the contract; and (2) in its action on the contract, additional claims for extra work. We agree with the rulings of the trial court.

A

In the surety’s cause of action for breach of the construction contract, the surety maintains that it should have been permitted to offer evidence at trial to persuade the jury that the owner’s failure to make timely payments for contract work and extras was so material a breach that the surety was entitled to recover in quantum meruit for the value of the work performed. This measure of damages, according to the surety, should have been presented to the jury as an alternative to the claim for the unpaid balance of the contract and the cost of contract extras. The trial court, after having initiated a discussion with counsel about the possible role of rescission and restitution in the resolution of this case, decided not to permit a claim for quantum meruit to be pursued. We agree that evidence relating to a claim for quantum meruit was properly excluded.

At the time when the surety filed its lawsuit, work on the project was 99 percent complete. In these circumstances, its claim for a remedy in restitution measured by quantum meruit is governed by § 373 (2) of the Second Restatement of Contracts (1981), which provides: “The injured party has no right to restitution if he has performed all of his duties under the contract and no performance by the other party remains due other than payment of a definite sum of money for that performance.”

Professor Farnsworth suggests that the rule of the Restatement is grounded in the practical perception that “to implement the policy favoring restitution would involve the court in problems of measurement, while recognition of the expectation interest [i.e., the contract price] requires it only to award a sum fixed by the parties.” 3 E.A. Farnsworth, Contracts (1990) § 12.20, p. 311; see also 5 A. Corbin, Contracts (1964) § 1110. The inadvisability of judicial reevaluation of the price that the parties have assigned for the work to be performed is rooted in the nature of the remedy that restitution affords a party injured by a material breach of contract. As we have recently noted, because the remedy in restitution is designed to prevent unjust enrichment of the party responsible for a material breach of an enforceable contract, the remedy is measured not by the loss suffered by the injured party but by the gain received by the party in breach. Bernstein v. Nemeyer, 213 Conn. 665, 675-76, 570 A.2d 164 (1990); 3 E.A. Farnsworth, supra, § 12.19, p. 305; 1 G. Palmer, The Law of Restitution (1978) § 4.1, p. 369; 3 Restatement (Second), Contracts (1981) §§ 344 (c), 370 and 371; see Monarch Accounting Supplies, Inc. v. Prezioso, 170 Conn. 659, 665-67, 368 A.2d 6 (1976); Franks v. Lockwood, 146 Conn. 273, 278, 150 A.2d 215 (1959). Furthermore, “[t]he award of a restitutionary remedy for breach of contract depends upon a showing of what justice requires in the particular circumstances.” Bernstein v. Nemeyer, supra, 675. After full performance of a contract, the appropriate measure of the value of the benefit conferred upon the party in breach is the value that the parties themselves, in their contract, have assigned to that performance, in the absence of some special showing such as a lack of good faith, unconscionability, or “abuse of contract.” See E. A. Farnsworth, “Your Loss or My Gain? The Dilemma of the Disgorgement Principle in Breach of Contract,” 94 Yale L.J. 1339, 1384-86 (1985).

Our application of the Restatement rule finds support, furthermore, in case law in other jurisdictions barring contractors who have fully performed from recovering damages in excess of the contract price. See, e.g., United States v. Americo Construction Co., 168 F. Sup. 760, 761-62 (D. Mass. 1958); Siebler Heating & Air Conditioning v. Jenson, 212 Neb. 830, 833-34, 326 N.W.2d 182 (1982); Clark-Fitzpatrick, Inc. v. Long Island R.R. Co., 70 N.Y.2d 382, 388-90, 516 N.E.2d 190, 521 N.Y.S.2d 653 (1987). The court’s reasoning in Clark-Fitzpatrick, Inc. v. Long Island R.R. Co., supra, 389, is especially persuasive: “It is impermissible .. . to seek damages in an action sounding in quasi contract where the suing party has fully performed on a valid written agreement, the existence of which is undisputed, and the scope of which clearly covers the dispute between the parties .... Here, it is undisputed that the relationship between the parties was defined by a written contract, fully detailing all applicable terms and conditions, and specifically providing for project design changes with adjustments in compensation contemplated in light of those changes. Notwithstanding [the contractor’s] claim that [the owner] breached the contract, [the contractor] chose not to rescind the agreement, but instead to complete performance of the contract and sue to recover damages, which of course was [the contractor’s] right. Having chosen this course, however, [the contractor] is now limitp.H to recovery of damages on the contract, and may not seek recovery based on an alleged quasi contract. ”

B

The surety also maintains that, in its cause of action for damages pursuant to the construction contract, the trial court took too narrow a view of the extra work claims on which the surety was entitled to present evidence to the jury. The June, 1982 completion agreement contemplated the contractor’s submission, by August 9, 1982, of claims for extra work arising subsequent to the date of the settlement agreement. In timely fashion, the contractor submitted forty-seven extra work claims with a claimed value of $1,160,000, none of which the owner paid. At the trial, the surety sought to recover $900,972 for extra work, but was only permitted to present evidence to the jury with respect to $24,921 of these claims.

The trial court excluded many of the extra work claims in reliance on the “Inspection” clause in the construction contract. The trial court held that the surety could not recover for work that the project engineer had rejected as incomplete or nonconforming, because the parties had agreed, in the construction contract, that “[t]he Engineer shall have the right to reject defective material and workmanship or require its correction.” We agree. “[Contracting parties are free to impose conditions upon contractual liability. Brauer v. Freccia, 159 Conn. 289, 293-94, 268 A.2d 645 (1970); Strimiska v. Yates, 158 Conn. 179, 185, 257 A.2d 814 (1969). Frequently, building contracts provide that a third party, an architect or an engineer, acting in good faith and in the exercise of his best judgment, shall decide when one of the contracting parties has fulfilled the requirements of the contract. In such circumstances, if the architect or engineer withholds certification, and his decision is not arbitrary or made in bad faith, a court is not authorized to substitute its judgment for that of the designated expert. Maskel Construction Co. v. Glastonbury, 158 Conn. 592, 597, 264 A.2d 557 (1969); Friend v. Green, 146 Conn. 360, 364-65, 151 A.2d 343 (1959); Dahl v. Edwin Moss & Son, Inc., 136 Conn. 147, 153-54, 69 A.2d 562 (1949); Clover Mfg. Co. v. Austin Co., 101 Conn. 208, 213, 125 A. 646 (1924); Chatfield Co. v. O’Neill, 89 Conn. 172, 174, 93 A. 133 (1915).” Grenier v. Compratt Construction Co., 189 Conn. 144, 148, 454 A.2d 1289 (1983). In light of these precedents, the fact that the construction contract contained an alternate dispute resolution clause, presumably to permit arbitration of other disputes under the contract, does not undermine the categorical nature of the inspections clause.

The surety also asks us to review the rulings of the court rejecting claims for extra work that, in the view of the court, lacked a sufficient evidentiary basis. With respect to these work orders, the surety attempted to meet its burden of proving the cost of labor and materials by proffering evidence of contemporaneous estimates rather than actual costs. The construction contract provision for change orders specified, however, that, absent an agreement about the cost of work extras, “[t]he term Cost of the Work means the sum of all costs necessarily incurred and paid by the Contractor in the proper performance of the Work.” In light of this provision, and other factual infirmities in the evidence offered, the court correctly concluded that the cost estimates proffered by the surety were insufficiently probative to be admissible to prove the actual costs that the contractor had incurred. See Grenier v. Compratt Construction Co., supra.

Ill

The final issue before us is the cross appeal of the contractor, who challenges the validity of the trial court’s ruling precluding the contractor from presenting its own defense. The contractor was not permitted to cross-examine adverse witnesses, to make objections to adverse evidence, or to present a closing argument to the jury.

The trial court’s ruling to exclude the contractor from participation in the trial was premised on its finding of an identity of interest between the surety and the contractor. That finding was supported by the following facts. With respect to the first case, the action to recover the unpaid contract price and the cost of contract extras, the contractor, on March 10, 1982, prior to the beginning of the trial, had assigned all its rights to any claims or judgments to the surety. With respect to the second case, the action by the owner and redeveloper to recover damages for work improperly performed, that action was not a suit on the construction contract but a suit against the surety on its performance bond. Although the contractor was named in that litigation as an interested party in view of its contractual role as the principal on the performance bond, the contractor could not be held accountable in that suit unless the surety were held liable.

The trial court’s decision to exclude the contractor was an exercise of its broad discretion to manage the presentation of evidence and the scope of cross-examination in civil cases. See Gurecki v. Johnson, 175 Conn. 297, 298, 398 A.2d 311 (1979); C. Tait & J. LaPlante, Connecticut Evidence (2d Ed.) § 3.4.3, p. 43. The court’s finding of an identity of interest between the surety and the contractor distinguishes this case from Commercial Union Ins. Co. v. Frank Perrotti & Sons, 20 Conn. App. 253, 566 A.2d 431 (1989). As a general matter, because identity of interest is not to be presumed, separate defendants (or plaintiffs) are entitled to be treated as separate parties for purposes of cross-examination. Id., 262-63. When, however, parties have substantially the same interests, they “should not be permitted to examine witnesses in relays.” Guy v. Rudd, 345 F. Sup. 1382, 1385 (W.D. Pa. 1972), rev’d on other grounds, 480 F.2d 677 (3d Cir. 1973); see also 1 J. Moore, Federal Practice, Manual for Complex Litigation (Second) (1986) § 22.22.

In this case, the trial court, ruling in the first instance with regard to the presentation of the evidence in the surety’s case against the owner, carefully limited its ruling of identity of interest between the surety and the contractor. The court expressly left open the possibility that future trial developments might “break the unity” between these parties. It thereby invited the contractor to make an appropriate showing of specific instances in which it needed to cross-examine particular witnesses or to make a separate argument. Although the contractor reiterated on several occasions its general desire to participate more folly in the trial, it did not make a particularized showing, as witnesses were examined, of what it wanted to bring to the attention of the jury. On this record, we are persuaded that the contractor was not prejudiced by the ruling of the trial court and that the ruling therefore was not an abuse of its discretion.

The judgment is reversed and the case is remanded for a new trial.

In this opinion the other justices concurred.

       The city of Stamford is no longer a party to this litigation, even though it was originally named as codefendant by the plaintiffs in the first case.

       Article 4 of the contract provided in pertinent part: “It is mutually agreed between the parties hereto that time is of the essence of this Contract. As actual damages for any delay in completion of the work are impossible to determine, the Contractor and his sureties shall be liable for and shall pay to the Owner the sum of Three Thousand Dollars ($3,000.00) for each calendar day of delay until the Contract is completed or accepted.”

       Section 4 (c) of the supplementary conditions to the contract provided: “The Contractor shall substantially complete, including obtaining a final certificate of occupancy, and have the Project ready for occupancy and use as a public parking facility no later than seven hundred thirty (730) consecutive calendar days from the start of construction.”

       Section 9 (d) of the general conditions to the contract provided: “Upon completion and acceptance of all work required hereunder, the amount due the Contractor under this Contract shall be paid upon certification by the Engineer and approval by the Owner, after the Contractor shall have furnished Owner with a release in satisfactory form of all claims against the Owner arising directly or indirectly under this Contract, other than such claims, if any, as may be specifically excepted by the Contractor from the operation of the release; provided, each such exception shall embrace no more than one claim, the basis and scope of which shall be clearly defined and the amount stated; and provided further, the amounts of such excepted claims shall not be included in the application for final payment.”

       All the claims of error were adequately preserved in the trial court.

       At the commencement of the trial, the surety withdrew a claim that the settlement agreement was voidable because the contractor had executed it under duress.

       The complaint filed by the surety contained no count in rescission, restitution or quantum meruit, but focused solely on the damages flowing from the breaches of contract alleged in the complaint. By its terms, the complaint sought a recovery for specified amounts due and owing the surety as assignee of the contractor, amounts described in the complaint as the unpaid contract balance and the price for extra work. It is not clear, therefore, on what basis the trial court interjected a discussion about rescission and restitution into this case.

       For the purposes of the present discussion, a determination of whether work has been fully performed does not depend upon whether the owner has reserved claims about the timeliness of the work or about the manner of its performance.

       We need not decide today whether the rules that govern remedial rights in the event of full performance are equally applicable in the event of substantial performance. We therefore do not need to resolve the disparate meanings that the parties attribute to M.J. Daly & Sons, Inc. v. New Haven Hotel Co., 91 Conn. 280, 287-89, 99 A. 853 (1917).

       The cases cited by the surety for the contrary view are not directly on point. Several of them deal with questions of substantial rather than full performance. See, e.g., M.J. Daly & Sons, Inc. v. New Haven Hotel Co., 91 Conn. 280, 99 A. 853 (1917). The court’s rulings in favor of claims sounding in quantum meruit in Rossetti v. New Britain,, 163 Conn. 283, 292, 303 A.2d 714 (1972), and Morici v. Jarvie, 137 Conn. 97, 101-102, 75 A.2d 47 (1950), do not indicate that any claim was raised, in either case, that the performance of the plaintiffs therein was so complete that they should have sued on the contract.

       No issue has been raised in this case about the contractor’s ability to exercise peremptory challenges to prospective jurors.

       At the hearing on this question, counsel for the contractor acknowledged that it was within the discretion of the court to make such a ruling.

       At a new trial, the contractor will continue to have the opportunity to exercise independent evidentiary rights if its interests are demonstrably separate from those of the surety.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Galt Booth et al. v. Robert C. Flanagan et al.
    (14201)
    Peters, C. J., Shea, Callahan, Glass and Covello, Js.
    Argued October 31
    decision released November 26, 1991

      Bruce L. Elstein, with whom was Henry Elstein, for the appellants (plaintiffs).

      Roger J. Frechette, with whom was Matthew E. Frechette, for the appellee (named defendant).

      Roger Sullivan, for the appellees (defendant Stephen Yardan et al.).
   Per Curiam.

In this action for specific performance of a contract for the purchase of real property, this court granted the petition of the plaintiffs, Galt Booth and Grace Mary Romano, for certification to appeal from the judgment of the Appellate Court. Booth v. Flanagan, 23 Conn. App. 579, 583 A.2d 148 (1990). Our certification was limited to the following issue: “What effect should a mortgage contingency clause, that does not comply with General Statutes § 49-5b, have where the buyers have waived the terms of the clause and are ready, willing and able to purchase the property without third party mortgage financing?” Booth v. Flanagan, 217 Conn. 807, 584 A.2d 1191 (1991). The defendants, Robert C. Flanagan, Gary Flesche and Stephen Yardan, thereafter filed two separate statements pursuant to Practice Book §§ 4013 (a) (1) (A) and 4140 in which they presented a number of alternate grounds upon which to affirm the judgment of the Appellate Court.

After examining the record on appeal and after considering the briefs and the arguments of the parties, we have concluded that the appeal in this case should be dismissed on the ground that certification was improvidently granted. Our certification was predicated upon the assumption that the record and the pleadings had clearly established the plaintiffs’ effective waiver of the mortgage contingency clause in their contract to purchase real property from the named defendant or his successors in interest. In the absence of a clear showing to this effect, this appeal does not afford us the opportunity to undertake a full consideration of the question that we certified. See Lawler v. Lawler, 212 Conn. 117, 119, 561 A.2d 128 (1989). It would serve no useful purpose for us to repeat the Appellate Court’s careful and well reasoned consideration of the general scope of General Statutes § 49-5b.

The appeal is dismissed.

       The defendants urged, as alternate grounds for affirmance, that the plaintiffs were not entitled to specific performance because (1) their claim was time-barred by General Statutes § 47-33a, (2) their contract to purchase was subject to a condition of probate approval, which had not been obtained, and (3) their contract to purchase was voidable because of the impracticability of its performance. The named defendant also relied on the plaintiffs’ failure to demand a closing before the termination of his authority to convey the property. Relying on its construction of General Statutes § 49-5b, the Appellate Court did not find it necessary to consider these issues in arriving at its judgment. Booth v. Flanagan, 23 Conn. App. 579, 585, 583 A.2d 148 (1990).


author: Borden, J. Shea, J.,

text:
    Richard D. Lauer v. Zoning Commission of the Town of Redding et al.
    (14255)
    Peters, C. J., Shea, Glass, Co vello and Borden, Js.

      Argued September 25
    decision released December 3, 1991

      Nancy Burton, for the appellant (plaintiff).

      Michael N. LaVelle, for the appellee (named defendant).

      Helen L. McGonigle, for the appellee (defendant John Angeloni).
   Borden, J.

The plaintiff, Richard Lauer, appeals from the trial court’s dismissal of a zoning appeal from a decision of the named defendant, the zoning commission of the town of Redding, granting a special permit to the defendant John Angeloni for a horse riding academy. The plaintiff claims that the trial court improperly dismissed his appeal because: (1) the failure of the commission to give notice of the public hearing, on Angeloni’s special permit application, to the adjoining town of Bethel pursuant to General Statutes (Rev. to 1989) § 8-3h deprived the commission of subject matter jurisdiction over the application; (2) the commission’s grant of the special permit allowed an impermissible second principal use on Angeloni’s property, in violation of the Redding zoning regulations; and (3) the trial court made a clearly erroneous finding of fact in its determination that the plaintiff had presented no evidence that two commission members, who were absent during one of the two public hearings on the special permit application, had not sufficiently acquainted themselves with the issues raised at that hearing to make an informed decision on the application. We disagree with the plaintiff’s first two claims, and order a remand for further articulation by the trial court on the third claim.

The relevant facts are as follows. Angeloni owns 11.6 acres of land designated as lot 5 of an eleven lot subdivision known as “Huntington Estates” in the town of Redding. He applied to the commission for a special permit to operate a horse riding academy on lot 5 which, at the time of the application, was already improved by a residence. Pursuant to General Statutes § 8-3c (b) the commission held public hearings on the application on April 12 and April 26, 1989. Although the town of Bethel adjoins the town of Redding and is in close proximity to Angeloni’s property, notice of the hearing was not given to the clerk of the town of Bethel pursuant to § 8-3h. Commission members Charles Beeston, who was eighty-five years old at the time and has since died, and Edwin Gienger were absent during the April 12 session. A tape recording and transcript of the April 12 session were available for their review. Beeston and Gienger were present during the April 26 hearing. On May 24,1989, the commission voted three to two to approve the special permit application subject to certain conditions. Beeston and Gienger cast two of the three majority votes.

The plaintiff appealed to the Superior Court, claiming that: (1) the special permit approval was jurisdictionally defective because the town of Bethel had not been given notice pursuant to § 8-3h; (2) the riding academy constituted an impermissible second principal use-of lot 5; and (3) the votes of Beeston and Gienger, which were necessary for approval, were invalid because Beeston and Gienger had failed properly to inform themselves of the issues raised at the April 12 hearing. The trial court dismissed the plaintiffs appeal. The court determined that: (1) the plaintiff was not entitled to rely on § 8-3h because that statute was intended to protect the interests of adjoining municipalities from the impact of neighboring zoning decisions and was not jurisdictional in nature; (2) the riding academy is a permitted special use that can coexist with a principal use; and (3) the plaintiff “has not presented any evidence which would disclose that the two zoning board members who were not present at the April 12, 1989 hearing failed to acquaint themselves with those proceedings.” This appeal followed.

I

The plaintiff first claims that the failure to give notice to the town of Bethel as required by General Statutes § 8-3h deprived the commission of subject matter jurisdiction over the special permit application. He also claims that the trial court improperly concluded that, although he was aggrieved, he was not entitled to raise the issue of a violation of § 8-3h. He argues that, since he is aggrieved, he can raise any issue of improper conduct by the commission, including a violation of § 8-3h. The defendants concede that the commission did not properly notify the Bethel town clerk pursuant to the statute. They argue that compliance with § 8-3h is not a prerequisite for subject matter jurisdiction, and that the plaintiff is not entitled to complain of a failure to give notice to the town of Bethel. We agree with the defendants.

“We approach this question according to well established principles of statutory construction designed to further our fundamental objective of ascertaining and giving effect to the apparent intent of the legislature. State v. Kozlowski, 199 Conn. 667, 673, 509 A.2d 20 (1986); Hayes v. Smith, 194 Conn. 52, 57, 480 A.2d 425 (1984). In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter. Dart & Bogue Co. v. Slosberg, 202 Conn. 566, 572, 522 A.2d 763 (1987) . . . .” Texaco Refining & Marketing Co. v. Commissioner, 202 Conn. 583, 589, 522 A.2d 771 (1987). “Subject matter jurisdiction is the power of the court to hear and determine cases of the general class to which the proceedings in question belong. LeConche v. Elligers, 215 Conn. 701, 709, 579 A.2d 1 (1990), quoting Shea v. First Federal Savings & Loan Assn. of New Haven, 184 Conn. 285, 288, 439 A.2d 997 (1981). The same principle applies to administrative agencies; Castro v. Viera, 207 Conn. 420, 428, 541 A.2d 1216 (1988); including zoning authorities. Langer v. Planning & Zoning Commission, 163 Conn. 453, 458, 313 A.2d 44 (1972).” (Internal quotation marks omitted.) Caserta v. Zoning Board of Appeals, 219 Conn. 352, 358, 593 A.2d 118 (1991).

There is no question that, absent § 8-3h, the commission had subject matter jurisdiction to consider the special permit application for the riding academy. See General Statutes § 8-3c (b). The issue presented, therefore, is whether the legislature intended to make § 8-3h notice an additional requirement for subject matter jurisdiction. “That determination must be informed by the established principle that every presumption is to be indulged in favor of jurisdiction.” LeConche v. Elligers, supra, 709-10. Application of these principles to the present case leads us to conclude that § 8-3h provides for personal notice to an adjoining town and is, therefore, not subject matter jurisdictional.

We first examine the language of § 8-3h. At the time of the April 12, 1989 hearing, the statute required a zoning commission to notify, by registered mail, the clerk of an adjoining town of the pendency of certain applications, within seven days of receiving the application. Thus, the language of this statute provides for notice to a specific recipient, as opposed to published notice to the general public and is, therefore, akin to a personal notice statute.

This court has distinguished between statutorily required published notice to the general public and statutorily required personal notice to specific individuals. We have long held that failure to give newspaper notice is a subject matter jurisdictional defect; see Jarvis Acres, Inc. v. Zoning Commission, 163 Conn. 41, 44, 301 A.2d 244 (1972); Hartford Electric Light Co. v. Water Resources Commission, 162 Conn. 89, 109, 291 A.2d 721 (1971); Smith v. F. W. Woolworth Co., 142 Conn. 88, 94, 111 A.2d 552 (1955); and that “[sjubject matter jurisdiction cannot be waived or conferred by consent.” Demar v. Open Space & Conservation Commission, 211 Conn. 416, 424, 559 A.2d 1103 (1989). We have also long held, however, that failure to give personal notice to a specific individual is not a jurisdictional defect; see Sachem’s Head Assn. v. Lufkin, 168 Conn. 365, 362 A.2d 519 (1975); Schwartz v. Hamden, 168 Conn. 8, 357 A.2d 488 (1975); and that “[l]ack of personal notice may be waived by the party entitled to it.” Schwartz v. Hamden, supra, 15.

In Schwartz v. Hamden, supra, we discussed the different purposes of published newspaper notice and personal notice. The purpose of a personal notice statute is to “give actual notice to [the person entitled to notice].” (Emphasis added.) Id., 15. Therefore, if a person has actual notice of a hearing, the failure to give mailed notice does not frustrate the purpose of the notice provision. Id.

The purpose of publishing notice to the general public, however, is to notify, “by means of legal advertisements, as much of the population as possible of contemplated zoning actions.” Id., 14. In the absence of newspaper publication, unknown individuals with an interest in zoning matters would have no way of learning what zoning decisions were being contemplated. Failure to provide such notice deprives the administrative tribunal of subject matter jurisdiction “even when the complaining party appeared at the public hearing since the legislative intent to notify the public constructively would otherwise be frustrated.” Id., 15. Thus, what is “required is not actual notice, but, rather, constructive notice.” Jarvis Acres, Inc. v. Zoning Commission, supra, 47.

The reasoning in Schwartz is applicable to the present case. The notice requirement of § 8-3h was designed to give a town the opportunity to express its views about zoning actions contemplated by a neighboring town. It was not designed to give constructive notice to the general public.

This conclusion is bolstered by an examination of the complex factual inquiries that the zoning commission must make within a very brief time period. When the provisions of a statute are subject matter jurisdictional in nature, those provisions must be strictly complied with. See, e.g., Hillcroft Partners v. Commission on Human Rights & Opportunities, 205 Conn. 324, 326, 533 A.2d 852 (1987). Section 8-3h requires the zoning commission, within seven days of receipt of the application, to make detailed factual determinations as to the impact on adjoining towns of traffic, sewer drainage and water runoff. Since such detailed factual determinations are often difficult to make, especially within such a short time period, it is unlikely that the legislature intended the commission to be deprived of subject matter jurisdiction by a failure to comply strictly with § 8-3h.

An examination of the purpose of § 8-3h as found in its legislative history also suggests that this statute was not intended by the legislature to create a subject matter jurisdictional requirement. Members of the General Assembly suggested that the purpose of the § 8-3h notice requirement was to allow an adjoining town an opportunity to be heard when a zoning decision in a neighboring town might have an impact on the adjoining town. The statute was not enacted to give constructive notice, by means of legal advertisement, to as much of the population as possible. The general public would already be on notice by published newspaper notice given pursuant to General Statutes § 8-3c (b).

We recognize, as does the dissent, that some language in § 8-3h, namely, that “[n]o hearing may be conducted on any application . . . unless the adjoining municipality has received the notice required under this section,” could, if read literally and out of the context of the entire statute, suggest a contrary result. We conclude, nonetheless, that to give this language subject matter jurisdictional status would require strict compliance; see, e.g., Hillcroft Partners v. Commission on Human Rights & Opportunities, supra, 326; that would, in turn, lead to bizarre results. Under the plaintiffs interpretation, if the town of Bethel, including all its pertinent local government officials, had had actual notice of the hearing—indeed, even if those officials had participated in the hearings but had not received formal notice pursuant to § 8-3h—the town of Bethel could later successfully claim that the failure of the Redding zoning commission to notify the Bethel town clerk by mail had deprived the commission of subject matter jurisdiction. Since “[s]ubject matter jurisdiction cannot be waived or conferred by consent”; Demar v. Open Space & Conservation Commission, supra, 424; the hearing would be null and void despite the fact that Bethel had actual notice. We decline to give § 8-3h such an interpretation. “Common sense must be used in construing the regulation, and we assume that a rational and reasonable result was intended by the local legislative body.” Spero v. Zoning Board of Appeals, 217 Conn. 435, 441, 586 A.2d 590 (1991).

We also acknowledge the remarks in the legislative history by Representative Richard Blumenthal that “[cjlerks [of zoning commissions] ought to exercise a great deal of caution . . . but give the benefit of the doubt [to the adjoining municipality] whenever there is any question that there may be an impact that would fit the requirements of this bill . . . 30 H.R. Proc., Pt. 16,1987 Sess., p. 6032. We do not read this statement, however, as the dissent apparently does, to require the conclusion that § 8-3h notice was intended to be subject matter jurisdictional. It simply means that when the statute applies, that is, where the predicate facts are likely to exist; see footnote 2, supra; an adjoining town is entitled to personal notice, and if there is any doubt about that applicability, the statute is to be construed liberally.

Having concluded that § 8-3h provides for personal notice to adjoining municipalities and is, therefore, not subject matter jurisdictional, we also conclude that the plaintiff was not entitled to raise as an issue the failure to comply with the statute’s terms. This plaintiff was no more entitled to raise noncompliance with § 8-3h than he would have been entitled to complain of a failure to give personal notice to a neighbor of his who also was statutorily aggrieved. Furthermore, we have consistently held that “[l]ack of personal notice may be waived by the party entitled to it.” Schwartz v. Hamden, supra, 15. Since the town of Bethel was the only entity entitled to waive personal notice under § 8-3h, it follows that only the town of Bethel would be entitled to raise noncompliance with § 8-3h as an issue.

II

The plaintiff next claims that the granting of the application permitted an illegal second principal use of the property in violation of the Redding zoning regulations. The defendants respond that the riding academy is a permitted special use under the regulations that may coexist with a residence. We agree with the defendants.

Sections 4.2 through 4.5 of the Redding zoning regulations categorize the zoning districts for Redding as residential, business, office and research, and light industrial. The regulations state that the permissible uses in residential zones are principal uses, accessory uses and special uses. Section 4.2.3 of the regulations states that a riding academy is a permitted special use in a residential zone.

The plaintiff does not dispute that a riding academy is a permitted use on residentially zoned property. Instead, he argues that, since there already is a preexisting residence on the property, that residence must be the principal use of the property, and that a riding academy would be an impermissible second principal use in violation of section 3.6 of the Redding zoning regulations. We disagree. Under the circumstances of this case, the commission was entitled to conclude that when the riding academy is constructed on the site it will supplant the residence as the principal use of the property and that the residence will become an accessory use to that of the riding academy.

Section 3.6 of the regulations states in pertinent part that “[w]ithin Residential zones there shall not be more than one principal use, along with its permitted accessory uses and buildings, on each lot.” (Emphasis in original.) Section 8.1.172 defines “principal use” as “[t]he major or dominant use of the site, in terms of building space, land utilization and character of activities.” There can be no question that, on this record, the riding academy will be the “major or dominant use of the site, in terms of building space, land utilization and character of activities.” Apart from the residence already located on lot 5, virtually the entire balance of the 11.6 acre lot will be devoted to stable space, a riding arena, pasture facilities for the horses and parking. Furthermore, the plaintiff concedes that there was evidence before the commission that Angeloni would continue to live in the residence while operating the riding academy. Such an on-site living arrangement would ordinarily be necessary to care for the horses, and to respond in case of fire, sickness or some other unforeseen emergency.

The plaintiff argues, however, that because § 4.2.1 of the regulations specifically permits a residence to operate as a principal use, once a residence is constructed it must continue as the principal use because it was built first. The Redding zoning regulations, however, do not preclude a permitted principal use from coexisting as an accessory use with a later constructed permitted special use. “ ‘A zoning ordinance is a local legislative enactment, and in its interpretation the question is the intention of the legislative body as found from the words employed in the ordinance. . . .’ ” Harlow v. Planning & Zoning Commission, 194 Conn. 187, 193, 479 A.2d 808 (1984). “ £[T]he courts cannot, by construction, read into statutes provisions which are not clearly stated.’ ” Id. Simply because a residence is a permitted principal use at some time does not mean that it must always remain the principal use when a more dominant use is constructed later. Indeed, the Redding zoning regulations specifically recognize a residence as a use accessory to the permitted special uses of schools and churches. We therefore construe the zoning regulations as contemplating that a residence may operate as an accessory use with a permitted special use.

The plaintiff concedes that the key to his argument depends on which use first existed on the site. Under his interpretation, if the riding academy had been built first it would be the principal use of the property and a later constructed residence could coexist with it as an accessory use because the academy would remain the principal use, whereas, if the residence had been built first, the riding academy could be constructed only to the extent that it did not dominate the site. Under this argument, therefore, if there were a residence on a site and the owner wished to construct a dominant horse academy, he would be required to raze the residence, erect the riding academy and then rebuild the residence as an accessory use. We reject this scenario because “[cjommon sense must be used in construing the regulation, and we assume that a rational and reasonable result was intended by the local legislative body.” Spero v. Zoning Board of Appeals, supra, 441.

Ill

The plaintiffs final claim is that the votes of commission members Beeston and Gienger, who were absent during the first of two public hearings on the application, were invalid because Beeston and Gienger did not sufficiently acquaint themselves with the issues raised and the evidence and arguments presented at that hearing to make an informed decision on the application. The trial court found that the “plaintiff [did] not [present] any evidence which would disclose that the two zoning board members who were not present at the April 12, 1989 hearing failed to acquaint themselves with those proceedings,” and, therefore, did not satisfy his burden of proof. Read literally, as the plaintiff suggests, this finding would be clearly erroneous because the plaintiff did present evidence to the trial court that, if believed, could support a finding that Beeston and Gienger did not acquaint themselves with the April 12 hearing.

The defendants suggest, however, that in order to make sense of this finding in the absence of a further articulation by the trial court, the court’s language should be read as meaning that the plaintiff had not presented any credible evidence that either Gienger or Beeston had failed to acquaint himself with the April 12 proceedings. Understood in this sense, the defendants argue, the finding is adequately supported by the evidence and is, therefore, not clearly erroneous.

We agree with the defendants that we should read the trial court’s determination as meaning that the plaintiff presented no such credible evidence. This comports with our ordinary practice of reading an ambiguous trial court record so as to support, rather than contradict, its judgment. Bell Food Services, Inc. v. Sherbacow, 217 Conn. 476, 482, 586 A.2d 1157 (1991). We also agree with the defendants that the court’s finding, read in this light, was not clearly erroneous with respect to Gienger, but we are sufficiently in doubt about its finding with respect to Beeston that we deem a remand for further articulation to be in order.

General Statutes § 8-3c (b) provides in part that “[t]he zoning commission . . . shall hold a public hearing on [a special permit] application . . . .” Although this statute does not require the presence at the public hearing of a zoning commission member as a condition precedent for that member to vote on a special permit application, an absent commission member must at least acquaint “himself sufficiently with the issues raised and the evidence and arguments presented at the public hearing in order to [make] an informed judgment.” Loh v. Town Plan & Zoning Commission, 161 Conn. 32, 42, 282 A.2d 894 (1971); see also Dana-Robin Corporation v. Common Council, 166 Conn. 207, 217, 348 A.2d 560 (1974). Whether such a member has discharged his obligation to acquaint himself is in the first instance a question of fact for the trial court. See, e.g., Dana-Robin Corporation v. Common Council, supra. The factual finding of the trial court on this issue must stand unless it is clearly erroneous. Holy Trinity Church of God in Christ v. Aetna Casualty & Surety Co., 214 Conn. 216, 223, 571 A.2d 107 (1990). The party who challenges the action of the commission as illegal in this respect has the burden of proof. Loh v. Town Plan & Zoning Commission, supra. “If, however, the factual or legal basis of a trial court’s decision is unclear, ambiguous, incomplete, or the court has failed to state any basis for its decision, this court has the power to remand the case for further articulation of the basis of the trial court’s decision pursuant to Practice Book § 4061.” Rostain v. Rostain, 213 Conn. 686, 694, 569 A.2d 1126 (1990).

We first turn to Gienger’s testimony at trial and the trial court’s determination that the plaintiff failed to sustain his burden of proof of illegality with respect to Gienger. We conclude that, because Gienger’s credibility was not in issue, the trial court’s finding is adequately supported by the evidence and is, therefore, not clearly erroneous.

Gienger testified at trial that he had read the minutes of the hearing and all other pertinent reports. He also testified that he did not read the transcript of the hearing that was available nor did he listen to the tape. Our review of the record, however, discloses that the other reports that were marked as exhibits contained enough information discussed in the first hearing so that the trial court could reasonably conclude that Gienger did sufficiently acquaint himself with that hearing. Much of the April 12 hearing involved reading to the public the data that was later reviewed by Gienger. The other relevant information discussed in that hearing consisted of general comments that were later adequately discussed in the April 26 hearing and the May 24 deliberations, when Gienger was present.

The situation with respect to Beeston is different. We conclude here that because Beeston’s credibility was in issue at trial, the factual basis of the trial court’s decision with respect to him is unclear and that the interests of justice require a remand for further articulation by the trial court.

Beeston did not testify in person in the trial court due to his ill health. The plaintiff, however, introduced into evidence his deposition over the objection of the defendants. The defendants claimed that the deposition was inadmissible because Beeston was incompetent to testify at the time of the deposition and could not remember at all what he had done to compensate for his absence from the April 12 hearing. The trial court stated that it would read the deposition and then determine how much weight it would give to the testimony of Beeston.

Given Beeston’s unavailability, the trial court properly considered the contents of his deposition. Nonetheless, the nature of Beeston’s testimony in his deposition leaves us with doubt as to what the trial court meant by its finding with respect to that testimony. Beeston testified that he had not read the transcript or listened to the tape of the April 12 hearing. He also testified that he had reviewed no other documentation submitted at that hearing, and that he had read only newspaper accounts of the commission minutes. He also testified that his memory was good enough to state that he had never reviewed the letters and documents introduced at the April 12 hearing. If this testimony had been credited, the trial court would have been required to conclude, as a matter of law, that Beeston had failed to acquaint “himself sufficiently with the issues raised and the evidence and arguments presented at the [April 12] public hearing in order to [make] an informed judgment.” Loh v. Town Plan & Zoning Commission, supra, 42.

Beeston also testified, however, that he did not remember at all what he did to familiarize himself with the application. He also stated that he had a terrible memory and that his memory was not good enough to make a statement as to whether he reviewed letters and documents. On the basis of this testimony, the trial court could reasonably have concluded that, on the date the deposition was given, Beeston did not remember at all how he familiarized himself with the April 12 hearing and that, therefore, the plaintiff had simply failed to carry his burden of proof with respect to Beeston.

Our difficulty is that we cannot discern, from the trial court’s language, which of these two interpretations of its finding comports with the trial court’s intent. Therefore, we remand this case to the trial court for an articulation of the factual conclusions that the court drew from Beeston’s deposition concerning what he remembered at the time of the deposition.

If the trial court credited the testimony of Beeston and believed that Beeston only read the newspaper accounts of the minutes of the April 12 hearing, then we order that the trial court’s judgment be reversed and that the plaintiff’s appeal be sustained by the trial court, because in that case the plaintiff would have established that Beeston did not sufficiently acquaint himself with the April 12 hearing. If, however, the trial court determined that, when he gave his deposition, Beeston could not remember at all how he had acquainted himself with the April 12 hearing, then we order that the trial court’s judgment be affirmed, because in that case the plaintiff would have failed to sustain his burden of proving that Beeston had not adequately acquainted himself with the April 12 hearing.

The judgment is affirmed in part and the case is remanded for further proceedings in accordance with this opinion.

In this opinion Peters, C. J., Glass and Covello, Js., concurred.

Shea, J.,

dissenting. I disagree with the majority that the failure to notify the town of Bethel of the hearing on John Angeloni’s special permit application pursuant to General Statutes § 8-3h did not invalidate the granting of the application by the Redding zoning commission because of a violation of that statute. After specifying the circumstances under which notice to an adjoining municipality is required and the procedure for giving such notice, § 8-3h provides: “No hearing may be conducted on any application . . . unless the adjoining municipality has received the notice required under this section.” This prohibition against conducting a hearing on an application in the absence of notice to a municipality entitled thereto plainly deprived the zoning commission of its legal authority to consider the application, thus impairing jurisdiction to grant it.

In reaching the contrary conclusion, the majority relies on Sachem’s Head Assn. v. Lufkin, 168 Conn. 365, 362 A.2d 519 (1975), in which we held that the receipt of actual notice by a party cured the failure to give it the notice prescribed by statute. The majority also relies on Schwartz v. Hamden, 168 Conn. 8, 13-15, 357 A.2d 488 (1975), in which we concluded that the failure to notify a person of a hearing as statutorily required was waived when that person appeared at the hearing. Nothing in the record of this appeal, however, indicates that Bethel had actual notice of Angeloni’s application before the first hearing or that anyone appeared at the hearing in its behalf. Furthermore, the statutes involved in those cases did not contain the unique provision of § 8-3h that expressly prohibits a hearing unless the prescribed notice is given.

The majority opinion also claims that its conclusion “is bolstered by an examination of the complex factual inquiries that the zoning commission must make within a very brief time period.” The burden of compliance imposed on a zoning commission by the statute can readily be circumvented at minimal cost by mailing a notice to each adjoining municipality even remotely involved under the statute. The legislators considered this problem when § 8-3h was enacted and they contemplated that zoning commission clerks would “give the benefit of the doubt whenever there is any question that there may be an impact that would fit the requirements of this bill.” 30 H.R. Proc., Pt. 16,1987 Sess., p. 6032.

I am not ordinarily inclined to attach jurisdictional consequences to procedural flaws that occur in the course of administrative proceedings or appeals therefrom. See Andrew Ansaldi Co. v. Planning & Zoning Commission, 207 Conn. 67, 75-76, 540 A.2d 59 (1988) (Shea, J., concurring). When, however, the legislature has gone so far as to prohibit a hearing without the notice to an adjoining municipality prescribed by § 8-3h, I believe we have no choice but to implement the statute by invalidating a permit granted as a result of such an illegal hearing. Accordingly, I would sustain the plaintiffs appeal without addressing the other issues.

       The Appellate Court granted certification from the judgment of the trial court and we transferred the appeal to this court pursuant to Practice Book § 4023.

       “[General Statutes (Rev. to 1989)] Sec. 8-3h. notice to adjoining municipalities. The zoning commission of any municipality shall notify the clerk of any adjoining municipality of the pendency of any application, petition, request or plan concerning any project on any site in which: (1) Any portion of the property affected by a decision of such zoning commission is within five hundred feet of the boundary of the adjoining municipality; (2) a significant portion of the traffic to the completed project on the site will use streets within the adjoining municipality to enter or exit the site; (3) a significant portion of the sewer or water drainage from the project on the site will flow through and significantly impact the drainage or sewerage system within the adjoining municipality; or (4) water runoff from the improved site will impact streets or other municipal or private property within the adjoining municipality. Such notice shall be made by registered mail and shall be mailed within seven days of the date of receipt of the application, petition, request or plan. No hearing may be conducted on any application, petition, request or plan unless the adjoining municipality has received the notice required under this section. Such adjoining municipality may, through a representative, appear and be heard at any hearing on any such application, petition, request or plan.”

       General Statutes § 8-3c (b) states in relevant part: “The zoning commission . . . of any municipality shall hold a public hearing on an application or request for a special permit . . . .”

       The riding academy would front on Sunset Hill Road in Redding. Sunset Hill Road continues northward into Bethel. The town of Bethel is approximately 1000 feet north of the riding academy.

       One condition was that the horse academy post a sign directing exiting traffic to turn right onto Sunset Hill Road. A right turn onto Sunset Hill Road leads north toward the town of Bethel 1000 feet away.

       The plaintiff owns property at 155 Sunset Hill Road which is within 100 feet of the land involved in the decision and is, therefore, statutorily aggrieved under General Statutes § 8-8 (b) (1).

       The defendants also claim that the commission was not required to give notice pursuant to General Statutes § 8-3h in this case because a significant portion of the traffic will not use streets “within the adjoining municipality to enter or exit the [horse academy].” They argue that § 8-3h does not apply because the entrance to and exit from the riding academy are not located in or on the border of Bethel. Since we conclude that the plaintiff is not entitled to raise the issue of notice under § 8-3h, we need not consider this argument.

       By Public Acts 1989, No. 89-175, § 3, the legislature changed the method of notice from registered mail to certified mail, return receipt requested.

       Compare Jarvis Acres, Inc. v. Zoning Commission, 163 Conn. 41, 301 A.2d 244 (1972) (failure to publish notice in newspaper pursuant to General Statutes § 8-3 constitutes jurisdictional defect), Hartford Electric Light Co. v. Water Resources Commission, 162 Conn. 89, 291 A.2d 721 (1971) (insufficient published notice to general public constitutes due process violation and, therefore, is jurisdictional defect), Slagle v. Zoning Board of Appeals, 144 Conn. 690, 137 A.2d 542 (1957) (publication of notice in newspaper of hearing constitutes jurisdictional defect when published only three days before hearing), Winslow v. Zoning Board, 143 Conn. 381, 122 A.2d 789 (1956) (inadequate public notice constitutes jurisdictional defect), and Smith v. F. W. Woolworth Co., 142 Conn. 88, 111 A.2d 552 (1955) (inadequate publication of notice of public hearing in newspaper is jurisdictional defect), with Sachem’s Head Assn. v. Lufkin, 168 Conn. 365, 362 A.2d 519 (1975) (failure by the zoning commissioner to give written notice of permit application to two city officials was not jurisdictional defect because each official had actual notice and, therefore, waived personal notice), and Schwartz v. Hamden, 168 Conn. 8, 357 A.2d 488 (1975) (where record owners of land had actual notice, failure to notify them as required by statute was not jurisdictional defect because owners waived personal notice).

       “[This] bill simply requires that [if] a development project ... is close enough to a neighboring town and has a specific set of impacts . . . the neighboring town, will be notified and, therefore, have an opportunity to appear and make their views known. . . . [The bill] at least make[s] sure a town has an opportunity to comment . . . .” 30 H.R. Proc., Pt. 16,1987 Sess., p. 6031, remarks of Representative Miles S. Rapoport.
      “[This bill] will allow municipalities which have the potential to be significantly affected by activities in adjoining municipalities, at least a fair opportunity to be heard before the adjoining municipality acts on the zoning matter . . . .” 30 S. Proc., Pt. 9, 1987 Sess., pp. 3290-91, remarks of Senator Thomas J. Sullivan.

       The dissent argues that our reliance on Sachem’s Head Assn. v. Lufkin, 168 Conn. 365, 362 A.2d 519 (1975), and Schwartz v. Hamden, 168 Conn. 8, 357 A.2d 488 (1975), is misguided. In the present case, the dissent argues, there is nothing in the record to indicate that Bethel had actual notice of the application, unlike the situation in those cases, where persons entitled to statutorily required personal notice had actual notice. The dissent’s argument assumes that the issue of whether Bethel had actual notice is relevant to our holding in this case. It is not. Our holding that General Statutes § 8-3h notice is not jurisdictional depends not on whether Bethel had such notice, but on the terms of the statute. Our citations to Sachem’s Head Assn, and Schwartz are simply for the purpose of demonstrating that compliance with a personal notice statute, unlike a published notice statute, is not a subject matter jurisdictional requirement and, therefore, can be waived.

       Section 4.2.3 of the Redding zoning regulations states in pertinent part that “[sjubject to a Special Permit granted by the Commission ... the following uses may be authorized . . . (j) Livery stables, riding academies, livestock farms, and forest sawmills . . . .”

       Section 4.2.1 of the Redding zoning regulations states in pertinent part: “Any of the following [are permitted principal uses]:
      “(a) A detached single-family dwelling, one per lot.
      “(b) Public and private open space reservations, where maintained in a natural condition without buildings or activities areas.
      “(c) Farming, forestry and horticulture, as provided by section 5.14.” A single-family dwelling is defined in § 8.1.230 of the regulations as “[a] detached residence . . . .”

       The plaintiff also argues that because a residence, once erected, must continue to be the principal use of the property, a riding academy can only be categorized as an accessory use. The plaintiff notes that because a riding academy is not a specifically named accessory use under § 3.7 of the Redding zoning regulations, it cannot be a permitted accessory use. Since, however, in this case the riding academy is a permitted special use, and not an accessory use, this argument is without merit.

       Section 4.2.3 of the Redding zoning regulations allows as permitted special uses: “(a) Public schools and private schools . . . including customary accessory buildings . . . such as . . . faculty residences ....
      “(b) Churches . . . including accessory parish house . . . ."(Emphasis added.)

       Ordinarily the appellant has the responsibility to seek an articulation by the trial court in order to furnish an adequate appellate record. Southington v. State Board of Labor Relations, 210 Conn. 549, 563-64, 556 A.2d 166 (1989). We decline to dispose of the case on this basis, however, because the trial court’s finding, although ambiguous with respect to Beeston on close appellate examination, was sufficiently clear to mislead the plaintiff into believing that it should be addressed on appeal as clearly erroneous.

       The trial court having returned an articulation finding that Beeston could not remember how he had acquainted himself with the April 12 hearing, that court’s judgment is affirmed.

       The plaintiff claims that “a significant portion of the traffic to [the riding academy] will use streets within [the town of Bethel] to enter or exit the site.” General Statutes § 8-3h. The basis for this claim is not only that the road providing access to Angeloni’s property crosses the Bethel town line approximately 1000 feet further north, but also that the zoning commission imposed a condition requiring Angeloni to erect a sign directing all traffic exiting the riding academy to turn north toward Bethel. See footnotes 4, 5 and 6 of the majority opinion. The defendants’ claim that § 8-3h does not apply because the entrance and exit do not border on a Bethel street is without merit. See footnote 7 of the majority opinion.