author: Hull, J.

text:
    Herbert C. Hallas et al. v. Town of Windsor et al.
    (13567)
    Peters, C. J., Callahan, Glass, Hull and Santaniello, Js.
    Argued May 5
    decision released August 1, 1989

      Mary Katz Moule, with whom were Herbert C. Hollas and, on the brief, Christopher C. Noble, for the appellants (plaintiffs).

      Francis H. Morrison III, with whom were Judith A. Blank and, on the brief, Susan J. Barnes, for the appellees (named defendant et al.).

      Ralph G. Elliot, for the appellee (defendant Albert G. Ilg).

      Thomas F. Parker, for the appellee (defendant Ruth Levine).
   Hull, J.

This appeal arises from an action brought by the plaintiffs, Herbert Hallas and Mary Katz Moule, against the defendants, the town of Windsor, Windsor town manager Albert G. Ilg, Windsor director of finance Antoinette J. Anderson, and former Windsor director of finance Ruth Levine, alleging that appropriations made by the Windsor town council to fund two road construction projects in the town were in violation of the town charter. Specifically, the plaintiffs claimed that the town charter required the approving vote of the town meeting to validate the appropriations in question, and that the town council, acting alone, was without authority to make the appropriations. In their claims for relief, the plaintiffs sought monetary damages and injunctive relief. The defendants, by way of counterclaim, sought a declaratory judgment that the appropriations were made in compliance with all relevant provisions of the town charter and hence were lawful and valid. Subsequently, the plaintiffs moved for summary judgment on counts one and two of their amended complaint, and the defendants filed a cross motion for summary judgment on their counterclaim.

By memorandum of decision filed August 18, 1988, the trial court concluded that, under the pertinent provisions of the town charter, the town council was authorized to make the appropriations for the two road construction projects without the approving vote of the town meeting. Alternatively, the trial court ruled that even if the plaintiffs were correct that a town meeting was required to validate the road construction appropriations made by the town council, the plaintiffs’ claims of illegality were rendered moot by a subsequent special town meeting that purported to ratify the appropriations in question. Accordingly, the trial court: (1) denied the plaintiffs’ motion for summary judgment on counts one and two of their amended complaint; (2) granted the defendants’ cross motion for summary-judgment on their counterclaim; and (3) rendered a declaratory judgment in favor of the defendants that the Windsor town charter did not require the approving vote of the town meeting to validate the appropriations at issue. We agree with the trial court’s alternate ruling that the claims raised by the plaintiffs in their appeal have been rendered moot and, therefore, we lack jurisdiction to rule upon them.

The factual background of this appeal is not in dispute. Pursuant to chapter 9 of the Windsor town charter, the town meeting convenes in May of each year to adopt a budget for the town for the ensuing fiscal year, which runs from July 1 through June 30. The annual budget upon which the town meeting acts is recommended and presented to it by the town council—the town’s legislative body that also acts in the capacity of the board of finance. See Windsor Town Charter, c. 8, § 8-3 and c. 3, §§ 3-5, 3-6, 3-7. In adopting the annual budget, the town meeting makes appropriations for all purposes authorized by law. See General Statutes § 7-121.

Pursuant to chapter 8, § 8-7 (e) of the town charter, once the fiscal year begins, additional appropriations over and above those contained in the annual budget may be made from time to time by resolution of the town council upon recommendation of the town manager and upon certification from the finance director that there is available an unappropriated and unencumbered general fund cash balance to meet such appropriations. Thus, under § 8-7 (e), if an available cash balance exists, the town council may make appropriations without the approving vote of the town meeting. Section 8-7 (e) states, however, that its provisions “shall be subject to the provisions of [chapter 9,] section 9-3 of this act.” Section 9-3 provides in pertinent part: “[A]ny appropriation in excess of (1) per cent of the tax levy in the fiscal year for which the appropriation is made in addition to or supplementary to the annual budget appropriation, the issuance of bonds or notes in excess of (2) per cent of the tax levy for the fiscal year in which the borrowing is made . . . shall become effective only after it has been adopted at a town meeting by the vote of a majority of those present and entitled to vote at such meeting . ”

The central issue below was whether the defendants had violated § 9-3 of the town charter when the town council made appropriations to fund the two road construction projects, known as “Griffin Road North Extension” and “Corporate Drive,” without the approving vote of the town meeting. With regard to that issue, the parties agreed in open court to the following salient facts. The first appropriation, for the construction of Griffin Road North Extension, was for $340,000. This appropriation was made by the town council alone, the vote occurring on July 20,1982. The second appropriation, for the construction of Corporate Drive, was for $200,000. This appropriation was also made by the town council alone, the vote occurring on January 18, 1983. The two appropriations were to be funded by bonds or notes, as opposed to cash. Each appropriation was between 1 percent and 2 percent of the tax levy for fiscal year 1982-83. Construction of both roads began in the summer of 1983. Corporate Drive was completed in May, 1984. Griffin Road North Extension was completed in November, 1984.

The plaintiffs argued to the trial court that under §§ 8-7 (e) and 9-3 of the town charter, the town council’s authority to make additional or supplementary appropriations without the approving vote of the town meeting was limited to appropriations of 1 percent or less of the tax levy that were to be funded by an available unencumbered general fund cash balance. Thus, under the plaintiffs’ interpretation of §§ 8-7 (e) and 9-3, the appropriations at issue were illegal in two respects: first, each appropriation was in excess of 1 percent of the tax levy; and second, both appropriations were to be funded by the issuance of debt rather than by an available unencumbered general fund cash balance. The trial court, however, disagreed with the plaintiffs’ interpretation. The court concluded that §§ 8-7 (e) and 9-3 authorized the town council to make appropriations of 2 percent or less of the tax levy without the approving vote of the town meeting where such appropriations were to be funded by the issuance of debt, i.e., through the issuance of bonds or notes. Therefore, under the court’s interpretation of the relevant charter provisions, the appropriations at issue were validly made by the town council.

Alternatively, the court ruled that even if the plaintiffs were correct that §§ 8-7 (e) and 9-3 prohibited the town council from making the two road construction appropriations without the approving vote of the town meeting, the plaintiffs’ claims of illegality were rendered moot by a subsequent special town meeting that purportedly ratified the appropriations. The undisputed facts relevant to this issue are as follows.

On October 29,1984, the town council held a special meeting. The minutes of this meeting read in pertinent part as follows: “Appropriation of $468,000 in the General Fund to Fund Griffin Road North Extension and Corporate Drive Borrowings

Deputy Waters read and moved the following resolution:

RESOLVED: To approve the transfer of $468,000 from Unappropriated General Fund Balance to General Fund Account No. 272 (Debt Service-Principal).

Councilwoman Simmons seconded, and the motion passed 8-0-0.

Set a Town Meeting Date to Approve the Appropriation of $468,000 for Griffin RoadNorth Extension and Corporate Drive

Councilwoman Turley read and moved the following resolution:

RESOLVED: That the resolution to approve the transfer of $468,000 from Unappropriated General Fund Balance to General Fund Account No. 272 (Debt Service-Principal) shall be submitted to the legal voters of the Town of Windsor for approval or disapproval at a Special Town Meeting to be held at the Windsor Town Hall on Monday, November 5, 1984, at 7:00 o’clock P.M. (E.S.T.) with the recommendation of the Town Council tht [sic] such resolution be approved.

Councilman Christensen seconded, and the motion passed 8-0-0.”

Notice of the special town meeting to be held on November 5, 1984, was published in the October 31, 1984 Journal Inquirer, a newspaper having a circulation in the town of Windsor. The notice read as follows:

“TOWN OF WINDSOR NOTICE OF SPECIAL TOWN MEETING

The legal voters of the Town of Windsor are hereby warned that a Special Town Meeting will be held at the Windsor Town Hall on November 5,1984 at 7:00 P.M. (E.S.T.) for the following purpose:

To approve or disapprove the resolution to approve the transfer of $468,000 from Unappropriated General Fund Balance to General Fund Account No. 272 (Debt Service-Principal) adopted at the meeting of the Town Council held October 29, 1984.

Dated October 30, 1984.”

The special town meeting referred to above was in fact held on November 5, 1984. The minutes of that meeting read as follows:

“A special town meeting of the Town of Windsor was held in the Council Chambers on November 5,1984 at 7:00 o’clock P.M. The meeting was called to order at 7:00 P.M. by the Clerk and recessed until 7:15 P.M.

Mr. Francis Brady was duly elected moderator.

The call was read by the Clerk.

The Moderator stated the rules and procedures for the meeting and those qualified to vote at the special meeting.

Mr. Everett Dowe, Jr. moved the following resolution:

To approve or disapprove the resolution to approve the transfer of $468,000 from Unappropriated General Fund Balance to General Fund Account No. 272 (Debt Service-Principal) adopted at the meeting of the Town Council held October 29, 1984 to be adopted.

Mr. James Grant seconded the resolution.

After a short discussion Mr. James McManus called for the question. The call for the question carried a 2/3d vote.

The vote was taken by a paper ballot vote. The tellers were sworn in by the Clerk.

The Registrar of Voters declared that 188 voters were crossed off the registry list.

On the vote, the resolution carried

YES NO

157 34

Having no further business, the meeting was adjourned at 9:05 P.M.”

The trial court ruled that “[t]he November 5, 1984 [special] town meeting vote served to ratify the previous action of the [town council]” and thereby rendered moot the plaintiffs’ claims of illegality. Accordingly, the trial court denied the plaintiffs’ motion for summary judgment on counts one and two of their amended complaint, granted the defendants’ cross motion for summary judgment on their counterclaim, and rendered a declaratory judgment in favor of the defendants. From this decision the plaintiffs have appealed.

We agree with the trial court’s alternate ruling that the plaintiffs’ claims on this appeal have been rendered moot. Consequently, this court lacks jurisdiction to entertain this appeal on the merits. “Because courts are established to resolve actual controversies, before a claimed controversy is entitled to a resolution on the merits it must be justiciable. Justiciability requires (1) that there be an actual controversy between or among the parties to the dispute: ‘Courts exist for determination of actual and existing controversies, and under the law of this state the courts may not be used as a vehicle to obtain judicial opinions on points of law.’ Harkins v. Driscoll, 165 Conn. 407, 409, 334 A.2d 901 (1973) ... (2) that the interests of the parties be adverse ... (3) that the matter in controversy be capable of being adjudicated by judicial power . . . and (4) that the determination of the controversy will result in practical relief to the complainant.” (Citations omitted.) State v. Nardini, 187 Conn. 109, 111-12, 445 A.2d 304 (1982). “ ‘In the absence of an actual and existing controversy for us to adjudicate in any sense of the term, the courts of this state may not be used as a vehicle to obtain judicial opinions upon points of law . . . and where the question presented is purely academic, we must refuse to entertain the appeal.’ ” (Citation omitted.) Shays v. Local Grievance Committee, 197 Conn. 566, 571-72, 499 A.2d 1158 (1985), quoting Connecticut Foundry Co. v. International Ladies Garment Workers Union, 177 Conn. 17, 19, 411 A.2d 1 (1979). Furthermore, “[t]he law recognizes that the actions of parties themselves, by settling their differences, can cause a case to become moot. ... ‘A case becomes moot when due to intervening circumstances a controversy between the parties no longer exists.’ ” Waterbury Hospital v. Connecticut Health Care Associates, 186 Conn. 247, 251-52, 440 A.2d 310 (1982), quoting Cote v. Zoning Board of Appeals, 398 A.2d 419, 420 (Me. 1979).

The heart of the plaintiffs’ claim is that the two road construction appropriations made by the town council were invalid under the relevant town charter provisions because they lacked the approving vote of the town meeting. The law is clear, however, that “[a] debt invalid for any reason when entered into, may be ratified, in a proper case, by a subsequent vote of the people. And where a previous appropriation is necessary but is not made, the contract may be ratified by a subsequent appropriation.” 15 E. McQuillin, Municipal Corporations (3d Ed.) § 39.37, and cases cited therein. Thus, even if the plaintiffs were correct that the town charter required the approving vote of the town meeting to validate the appropriations in question, that alleged defect was remedied by the special town meeting held on November 5, 1984, where the people present voted overwhelmingly to approve the appropriation of $468,000 in the general fund to pay for the construction of Corporate Drive and Griffin Road North Extension. That is precisely the vote the plaintiffs allege should have been taken. Therefore, any actual controversy regarding the lack of a town meeting vote that may have once existed between the parties, ceased to exist after the November 5,1984 special town meeting where the people present voted to approve appropriations for the construction of the two roads. It is this present lack of an actual controversy between the parties that renders the plaintiffs’ appeal moot, thereby denying this court jurisdiction. See, e.g., Shays v. Local Grievance Committee, supra; State v. Nardini, supra; Waterbury Hospital v. Connecticut Health Care Associates, supra; Harkins v. Driscoll, supra; Reynolds v. Vroom, 130 Conn. 512, 515, 36 A.2d 22 (1944).

Although the plaintiffs acknowledge the doctrine of subsequent ratification noted above, they contend that no appropriations for road construction were ratified at the special town meeting held on November 5,1984. The plaintiffs maintain that the townspeople at that meeting merely authorized a “transfer” of monies from the general fund balance to general fund account No. 272 (debt service-principal), not an “appropriation” for the construction of Corporate Drive and Griffin Road North Extension. The plaintiffs contend that this alleged failure to ratify an actual “appropriation” for the road construction projects at the special town meeting mandates the conclusion that funding for those projects was not approved by the special town meeting, and that an actual controversy between the parties therefore still exists. We disagree.

On October 29, 1984, the town council held a meeting wherein it voted to approve a resolution entitled “Appropriation of $468,000 in the General Fund to Fund Griffin Road North Extension and Corporate Drive Borrowings.” At this same meeting, the town council also voted to approve another resolution entitled “Set a Town Meeting Date to Approve the Appropriation of $468,000 for Griffin Road North Extension and Corporate Drive.” It was pursuant to this second resolution that the November 5,1984 special meeting was called. The resolution ultimately submitted for approval at the special town meeting reads as follows: “To approve or disapprove the resolution to approve the transfer of $468,000 from Unappropriated General Fund Balance to General Fund Account No. 272 (Debt Service-Principal) adopted at the meeting of the Town Council held October 29, 1984 to be adopted.” This resolution was approved by a vote of 157 to 34 at the special town meeting.

Thus, the only question is whether this town meeting vote constituted the ratification of an “appropriation.” In Woodward v. Reynolds, 58 Conn. 486 (1890), we held that a town meeting vote that accepted a General Assembly bond resolution and then directed town officials to “ ‘prepare . . . suitable . . . bonds’ ” and to “ ‘dispose of them’ ” constituted an appropriation even though the word “appropriation” was never used: “Construing the votes in light of [the] language of the resolution, we think they clearly make an appropriation .... To construe them otherwise would, we think, defeat the manifest intent and purpose of the town in passing them.” Id., 491. Similarly, the language of the resolution at issue in this case, together with the events leading up to its passage, convince us that the townspeople were on notice that the “manifest intent and purpose” of the November 5, 1984 special town meeting was to approve or disapprove an appropriation for the construction of Corporate Drive and Griffin Road North Extension, and that the vote in favor of the resolution “clearly [made] an appropriation.” Id.

In summation, in view of the subsequent ratification by the townspeople of appropriations made previously by the town council for the construction of Corporate Drive and Griffin Road North Extension, no actual controversy still exists between the parties and the case is therefore moot. Accordingly, we conclude that the trial court acted correctly in denying the plaintiffs’ motion for summary judgment on counts one and two of their amended complaint and in granting the defendants’ cross motion for summary judgment on their counterclaim.

There is no error and the matter is remanded with direction to vacate the declaratory judgment in favor of the defendants.

In this opinion the other justices concurred.

       The defendant Albert G. Ilg was sued both individually and in his official capacity. The defendant Antoinette J. Anderson was sued in her official capacity only, having been substituted for her predecessor Ruth Levine. The defendant Ruth Levine was sued individually only.

       The members of the Windsor town council were originally named as defendants both individually and in their official capacities. On January 5, 1984, the trial court, O’Neill, J., granted the motions of the town council members to strike the complaint as to them on the ground of legislative immunity.

       Those eligible to vote at a town meeting are “any person who is an elector of such town . . . and any citizen of the age of eighteen years or more who, jointly or severally, is liable to the town . . . for taxes assessed against him on an assessment of not less than one thousand dollars on the last-completed grand list” of such town. General Statutes § 7-6.

       The first count of the plaintiffs’ amended complaint alleged illegality with respect to an appropriation made by the town council for the construction of a road known as Corporate Drive; the second count made similar allegations with respect to a road known as Griffin Road North Extension.

       Chapter 8, § 8-7 (e) of the Windsor town charter provides: “The several departments, commissions, boards and offices of the town shall not involve the town in any obligation to spend money for any purpose in excess of the amount appropriated therefor until the matter has been approved and voted by the town council and each order drawn upon the treasurer shall state the department, commission, board or officers or the appropriation against which it is to be charged. When any department, commission, board or officer shall desire to secure a transfer of funds in its or his appropriation from funds set apart for one specific purpose to another, before incurring any expenditure thereof, such department, commission, board or officer shall make application to the council whose duty it shall be to examine into the matter, and upon approval of the council such transfer may be made, but not otherwise. Additional appropriations over and above those contained in the total budget may be made from time to time by resolution of the council, upon recommendation of the town manager and upon certification from the finance director that there is available an unappropriated and unencumbered general fund cash balance to meet such appropriations, except that the recommendation of the town manager shall not be required for such appropriations to the board of education and provided these provisions shall be subject to the provisions of section 9-3 of this act.”

       In further support of its conclusion that the plaintiffs’ case was moot, the trial court noted that the two roads had been completed and the debt for them paid off, and that this effectively precluded the court from granting the plaintiffs any practical relief in the form of an injunction. Moreover, because the plaintiffs had failed to claim that the town did not get what it bargained for, the trial court concluded that the plaintiffs were not entitled to monetary damages. In view of our holding, infra, that this case is rendered moot for lack of an existing controversy between the parties, it is unnecessary for us to address the question of whether this case is rendered moot on the separate ground that there was no practical relief available that the court could grant to the plaintiffs.

       In view of our holding that this case is moot, we hereby vacate the declaratory judgment rendered by the trial court in favor of the defendants that the town charter did not require the approving vote of the town meeting to validate the appropriations at issue, as the trial court was without jurisdiction to hear or decide that matter.

       The plaintiffs devote less than one paragraph of their thirty-five page brief to the “capable of repetition, yet evading review” exception to the mootness doctrine. We have duly considered this exception, succinctly described in Connecticut Foundry Co. v. International Ladies Garment Workers Union, 177 Conn. 17, 20-21, 411 A.2d 1 (1979), and find it inapplicable to this case.


source: Caselaw Access Project

author: Santaniello, J.

license: Public Domain

text:
    State of Connecticut v. Jose L. Cruz
    (13419)
    Shea, Glass, Covello, Hull and Santaniello, Js.
    Argued March 30
    decision released August 1, 1989

      Katherine C. Callahan, with whom was Robert M. DeCrescenzo., for the appellant (defendant).

      Richard F. Jacobson, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Gary W. Nicholson, assistant state’s attorney, for the appellee (state).
   Santaniello, J.

The defendant, Jose L. Cruz, was arrested and charged with murder in violation of General Statutes § 53a-54a (a). He entered a plea of not guilty and elected a jury trial. After the jury had found the defendant guilty as charged, he was sentenced to prison.

The defendant claims on appeal that the trial court erred in: (1) permitting witnesses to testify at trial as to information that was provided to them by persons not presented as witnesses at trial and by persons who were unknown and unnamed; (2) permitting impeachment testimony against a defense witness; (3) denying the defendant’s motion for a mistrial made as a result of the testimony of one witness purporting to establish a homosexual relationship between the defendant and the victim; and (4) denying the defendant’s motion for a mistrial based on the testimony of a police officer that an argument had occurred at the scene of the crime. We find no error.

The jury reasonably could have found the following facts. On October 29, 1986, at 8:30 p.m. a shooting resulting in the death of Walter Cothran, Jr., took place in a courtyard near building 11 at the Evergreen Apartments on Albion Street in Bridgeport. Among the investigating officers were Officers Richard Herlihy and Scott Gordon, and Detectives David Silva, Frank Williams and Leo Krusinski, all of the Bridgeport police department. Upon arrival at the scene, Officers Her-lihy and Gordon observed a black male lying on the ground in a pool of blood. Close examination of the body failed to disclose any respiration or pulse. Herlihy observed a bullet wound in the victim’s neck, but he could find neither a gun nor any spent shells in the area. He saw that the area was illuminated by lights on the buildings. He then talked to Melvin Riley, Andrew Lindsay, two black females who refused to identify themselves and several others who afforded no information and who also declined to identify themselves. Herlihy had ascertained from three unidentified and unnamed witnesses that “there [had been] an argument by building 11.” As a result of information received from these sources, and descriptions of an Hispanic man who went by the name Cheo, provided by Lindsay and the two black females, Herlihy issued a broadcast over the police radio to bring in Cheo for questioning.

While riding a bicycle to a nearby store, Allison Crad-dock saw the defendant and Cothran talking and drinking beer between buildings 10 and 11. Upon his return from the store and from a distance of approximately ten feet, he witnessed the defendant standing over Cothran and shooting him a total of five times. Thereafter, he saw Cruz run away.

At about the same time, Melvin Riley, who was walking along a fence about 100 yards from the scene, heard five shots and saw Cruz firing his gun into Cothran where he lay on the ground. Later in the evening at the detective bureau, Detective David Silva interviewed Riley in connection with the shooting and showed him six photographs from which he identified a photograph of the defendant as that of the person who shot Cothran.

Detective Leo Krusinski arrived at the scene of the shooting shortly after the other officers and detectives. An unidentified individual described Cheo’s physical appearance to the detective and also placed Cheo at the scene. Krusinski also learned from these sources that Cheo was the alleged street name of Jose Cruz. Detective Frank Williams learned from unidentified sources that Cruz had allegedly left the scene of the shooting in a blue Cadillac, and Williams conveyed this information to Krusinski. After acquiring this information, Krusinski left the scene in pursuit of that vehicle. The police found and stopped a blue Cadillac, but the defendant was not in it. Omar Bahamonde was driving the Cadillac and Richard Ortega was a passenger.

The defendant, who had fled the state, was later arrested in Kentucky, and returned to Bridgeport.

At trial, Herlihy testified that he and Gordon had been dispatched to the Evergreen Apartments in response to a report of a shooting near building 11. He stated that after ascertaining that Walter Cothran had been shot and apparently fatally wounded, he commenced an investigation during which he spoke to Andrew Lindsay, a black male, two unidentified black females and one unidentified black male, none of whom testified at trial. Herlihy further testified that he had been told by these individuals that “there was an argument by building 11” and that, on the basis of the information provided by these same individuals, he sought an Hispanic male whose street name was Cheo. None of the other witnesses called at trial testified that the defendant was involved in an argument at the scene. The court overruled the defendant’s objection to Her-lihy’s testimony as hearsay and denied his motion for a mistrial. The court, however, gave the jury a curative instruction.

On direct examination, Krusinski testified that he had questioned Richard Ortega at the detective bureau on the evening of the shooting. As a result of the information he had received from Ortega, Krusinski stated that he had attempted to locate Jose Cruz. The defendant objected to Krusinski’s testimony regarding this information as hearsay. The court also overruled this objection.

Riley was called to testify by the state and during direct examination he made reference to an alleged homosexual relationship between the defendant and the deceased. Defense counsel objected and the portion of the testimony that contained the word homosexual was stricken. Following Riley’s testimony, defense counsel moved for a mistrial on the ground that Riley’s reference to a homosexual relationship between the defendant and Cothran so prejudiced the defendant that he did not receive a fair trial. Although the court denied the defendant’s motion, it gave the jury a curative instruction immediately following Riley’s response.

During trial, the defendant called Omar Bahamonde to testify on his behalf. Bahamonde testified that he did not see the defendant at any time during the night of the shooting. On cross-examination, the state attempted to impeach him by inquiring whether he was the same man who had been arrested for felony murder in another pending case unrelated to the shooting of Walter Cothran. The court allowed the cross-examination as relevant to bias, interest and motive because Cruz family members would be testifying in Bahamonde’s behalf at his trial.

I

We turn now to the defendant’s first claim of error, that the trial court erred in permitting Krusinski to testify as to the information he secured from Richard Ortega some hours after the shooting. Krusinski tes-tiffed that Ortega gave him information concerning the shooting of Cothran and on the basis of that information, Krusinski attempted to locate Jose Cruz.

Similarly, the defendant’s fourth claim of error is that the trial court erred in allowing Herlihy to testify concerning information provided to him by Andrew Lindsay and two unidentified females, none of whom testified at the trial. Herlihy testified that after interviewing these parties at the scene of the shooting, he sought an Hispanic male whose street name was Cheo. Because the defendant propounds the same arguments for his claims of error by the trial court in allowing Krusinski and Herlihy to testify about the statements made to them by others, we join our discussion of those two issues.

The defendant claims that the testimony of Krusin-ski and Herlihy was inadmissible hearsay offered to identify the defendant as being involved in the shooting of Cothran before any evidence linking the defendant to the crime had been offered. The defendant argues, therefore, that he was denied his sixth amendment right to confront the witnesses against him by the failure of the state to call Ortega, Lindsay and the two unidentified females to testify. We disagree with the defendant’s characterization of Krusinski’s and Herlihy’s testimony.

“ ‘An out-of-court statement is hearsay when it is offered to establish the truth of the matters contained therein.’ State v. Sharpe, 195 Conn. 651, 661, 491 A.2d 345 (1985); State v. Randolph, 190 Conn. 576, 584, 462 A.2d 1011 (1983); State v. DeFreitas, 179 Conn. 431, 439-40, 426 A.2d 799 (1980); State v. Barlow, 177 Conn. 391, 396, 418 A.2d 46 (1979).” State v. Silveira, 198 Conn. 454, 473, 503 A.2d 599 (1986). “A statement offered solely to show its effect upon the hearer is not hearsay. Counsel on Probate Judicial Conduct re: James H. Kinsella, 193 Conn. 180, 200, 476 A.2d 1041 (1984); State v. Zdanis, 173 Conn. 189, 192 n.1, 377 A.2d 275 (1977).” State v. Silveira, supra.

Although Krusinski questioned Ortega and Herlihy interviewed Lindsay and the two unidentified females for information relating to the crime, no testimony was elicited as to anything the defendant did or was accused of doing. Had Krusinski and Herlihy been permitted to testify as to the specific contents of those conversations, that testimony would have been inadmissible. See State v. McDowell, 179 Conn. 121, 123, 425 A.2d 935 (1979); State v. Vennard, 159 Conn. 385, 392, 270 A.2d 837 (1970), cert. denied, 400 U.S. 1011, 91 S. Ct. 576, 27 L. Ed. 2d 625 (1971). The state, however, offered Krusinski’s and Herlihy’s testimony not to identify the defendant as being involved in the shooting, but for the limited purpose of explaining the witnesses’ reasons for instituting a search for an Hispanic male called Cheo. Thus their testimony is not barred by the hearsay rule. State v. Gonzales, 186 Conn. 426, 429, 441 A.2d 852 (1982); State v. Vennard, supra; see United States v. Love, 767 F.2d 1052, 1063 (4th Cir. 1985); United States v. Stout, 599 F.2d 866, 869 (8th Cir.), cert. denied, 444 U.S. 877, 100 S. Ct. 163, 62 L. Ed. 2d 106 (1979). Furthermore, because the testimony of Krusinski and that of Herlihy was offered for a nonhearsay purpose and the defendant had a full opportunity to cross-examine those witnesses, his sixth amendment right to confront the witnesses against him was not violated.

The defendant contends that the statements made by Ortega were crucial to the prosecution’s case and that without Ortega and the other unnamed, unidentified witnesses, “it is likely that Jose Cruz might never have been considered a suspect in the shooting.” We find the defendant’s argument untenable in light of the testimony of two other witnesses that they observed the defendant shoot Cothran and so informed the police on the night of the crime. Moreover, the defendant himself testified that although he had not witnessed the crime being committed, he had been present at the scene, heard gun shots, recognized the victim as Cothran and later ran from the area. We believe that Krusinski’s and Herlihy’s testimony, when taken in the context of the entire case, does not lead solely to the conclusion that the defendant was involved in the shooting. It would have been equally plausible for the jury to have concluded from Krusinski’s and Herlihy’s testimony that they were told that the defendant might know something about the shooting, and for that reason they began a search for him. We therefore conclude that the trial court did not err in permitting Krusinski and Herlihy to testify concerning their actions subsequent to the receipt of information concerning the shooting.

II

The defendant’s next claim of error is that the trial court erred in permitting impeachment testimony against defense witness Omar Bahamonde. During cross-examination of Bahamonde, the court permitted the state to question him regarding a pending felony murder charge on the basis that members of Jose Cruz’s family would be testifying in that case on Bahamonde’s behalf. The court’s ruling, which permitted that line of questioning as relevant to bias, interest and motive, followed an offer of proof in which the state produced a notice of alibi defense and an affidavit indicating that Cruz’s sister and brother-in-law would testify as to Bahamonde’s alibi defense at his trial.

The defendant denies the possibility that the circumstances surrounding Bahamonde’s felony murder charge would predispose him to testify in favor of the defendant. He further argues that Bahamonde’s testimony was critical to the defense since Bahamonde was the only witness other than the defendant to testify that the defendant was not at the scene of the shooting when the shooting occurred. Given these factors, the defendant contends that the introduction of evidence against Bahamonde concerning a pending felony murder charge that is unrelated to the present case was inordinately prejudicial, impermissible and constitutes reversible error. We disagree with the defendant’s conclusion.

Witnesses who testify for the defense, like defendants who testify on their own behalf, are in the position of any other witness with the same duties and obligations. State v. Moynahan, 164 Conn. 560, 599-600, 325 A.2d 199, cert. denied, 414 U.S. 976, 94 S. Ct. 291, 38 L. Ed. 2d 219 (1973). The scope of cross-examination of defense witnesses is no more restricted than that of witnesses for the prosecution. Id., 599. Although evidence of an arrest without conviction is inadmissible to attack the credibility of a witness, such evidence is admissible where it would reasonably tend to indicate motive, interest, bias or prejudice on the part of the witness. Id., 600.

In Moynahan, a defense witness, the defendant’s son, had been arrested and charged as a coconspirator with the defendant in a prosecution stemming from the same investigation and involving the same type of criminal behavior. We stated that under such circumstances, the state was permitted to impeach the witness with evidence of this arrest to show whatever bias, interest or prejudice he might have. The defendant argues that our ruling in Moynahan is based on the fact that the defense witness was a coconspirator of the defendant. Since there is no connection between the pending prosecution of Bahamonde and the prosecution of the defendant, he contends that State v. Moynahan, supra, is inapplicable to the present case and should not have formed the basis for the trial court’s denial of the objection by the defense to the impeachment of Bahamonde.

The defendant further suggests that our decision in State v. Lizzi, 199 Conn. 462, 508 A.2d 16 (1986), confirms his interpretation of the limited circumstances under which we permit the prosecution to impeach a defense witness on the basis of a pending arrest. In Lizzi, the state was permitted to impeach a defense witness, the defendant’s father, with evidence of a pending arrest. As in Moynahan, the defense witness in Lizzi was questioned about a pending charge that was related to the underlying criminal action in the defendant’s case.

Our decisions in Moynahan and Lizzi do not limit the state’s impeachment of defense witnesses to show bias through the use of evidence of a pending arrest without conviction only to arrests that are related to the transaction underlying the trial at which the witness is testifying. So to limit the state would contradict our statement in State v. Moynahan, supra, that the scope of cross-examination of a defense witness is no more restricted than that of witnesses for the prosecution.

Although a defense witness, in the hope of improving his own position, may be more motivated to testify falsely in a situation where he has been arrested on charges arising from the same transaction as that of the accused, we have never stated that such an arrest is the only circumstance that could produce such motivation. The range of circumstances giving rise to bias are infinite. See generally 81 Am. Jur. 2d, Witnesses § 547; 3A J. Wigmore, Evidence (3d Ed. Chadbourn Rev.) § 949. No useful purpose would be served by preventing the state from showing the motive, bias or interest of a defense witness when those factors arise in the context of an arrest without conviction for a crime that is unrelated to the criminal act underlying the trial at which the witness is testifying. Moreover, such a limitation would inhibit the jury’s function of determining the credibility of witnesses. State v. Hart, 198 Conn. 424, 427, 503 A.2d 588 (1986); State v. Myers, 193 Conn. 457, 473, 479 A.2d 199 (1984); Trzcinski v. Richey, 190 Conn. 285, 298, 460 A.2d 1269 (1983).

The defendant further argues that Bahamonde could not have expected leniency from the prosecution in his own case by testifying in the defendant’s favor in the present case. He further argues that because his sister signed the alibi affidavit long before the incident at issue in the present case, it “strains credibility to say that Bahamonde was somehow biased toward the defendant . ” The defendant therefore claims that the cross-examination of Bahamonde regarding the charge pending against him was more prejudicial than probative as to bias and should not have been permitted.

Our trial oourts exercise broad discretion in determining the relevancy of evidence. See State v. Bryant, 202 Conn. 676, 688, 523 A.2d 451 (1987); State v. Sharpe, 195 Conn. 651, 659, 491 A.2d 345 (1985). Furthermore, we have repeatedly stated that the determination of whether the prejudicial impact of evidence outweighs its probative value is left to the sound discretion of the trial court judge and is subject to reversal only where an abuse of discretion is manifest or injustice appears to have been done. State v. Braman, 191 Conn. 670, 681-82, 469 A.2d 760 (1983); State v. Tucker, 181 Conn. 406, 416, 435 A.2d 986 (1980). Having previously noted that an infinite number of circumstances can give rise to bias, we do not believe that, in the particular circumstances of the present case, the possibility for bias was so remote that the trial court abused its discretion in determining that the probative value of the evidence outweighed its prejudicial nature. We therefore conclude that the trial court did not err in admitting impeachment testimony against Bahamonde.

Ill

The defendant’s third claim of error concerns the denial of his motion for a mistrial that was based on the testimony of Melvin Riley. During the trial, the state called Riley as a witness, ánd the following exchange occurred between the prosecutor and Riley:

“Q. Now, do you know, Mr. Riley, whether or not there was any type of relationship between W. Cothran and the defendant, Mr. Cruz?

“A. Yes.

“Q. Gould you explain to us what that was, sir?

“A. Well, yeah, it was homosexual. And during times I would stay with Miss Crooks, JR’s niece, because during that period of time, JR was living with Karen and Mr. Cruz used to come to the house sometimes during the night with JR.”

Immediately following this exchange, the defendant objected and the jury was excused. The defendant moved for a mistrial on the grounds that the state’s attempt to establish a motive based on a homosexual relationship between the defendant and Cothran lacked a sufficient foundation and created prejudice that could not be erased from the minds of the jurors. The court denied the motion but sustained the defendant’s objection to the characterization of the defendant’s and Cothran’s relationship as homosexual.

Upon the return of the jury, the court immediately instructed it to disregard Riley’s response. The defendant did not take an exception to this instruction. In its final charge, the court again instructed the jury to disregard anything that had been stricken from the record. The defendant made no objections to this instruction.

The defendant argues on appeal that Riley’s characterization of the relationship between the defendant and Cothran as homosexual so prejudiced the defendant that the impression created was incapable of remedy by the court’s curative instructions. The defendant therefore contends that his constitutional right to a fair trial by an impartial jury was violated. While we agree that prejudice could have been created by Riley’s testimony, we do not believe that the defendant, in the context of the entire trial, was so prejudiced that a new trial is warranted.

“Impartiality as a core requirement of the right to trial by jury is served not only by the sixth amendment, which applies to the states as well as to the federal government; see, e.g., Witherspoon v. Illinois, 391 U.S. 510, 529, 88 S. Ct. 1770, 20 L. Ed. 2d 776 (1968) (Douglas, J., concurring); Parker v. Gladden, 385 U.S. 363, 364, 87 S. Ct. 468, 17 L. Ed. 2d 420 (1966); but also by the due process and equal protection clauses of the fourteenth amendment. See, e.g., Peters v. Kiff, 407 U.S. 493, 92 S. Ct. 2163, 33 L. Ed. 2d 83 (1972). We have held that the due process clauses of both the United States and Connecticut constitutions have the same meaning and impose similar limitations.” State v. Brigandi, 186 Conn. 521, 542, 442 A.2d 927 (1982). “Due process of law guarantees a criminal defendant a fair trial before an impartial judge and jury in a neutral atmosphere. U.S. Const., amend. XIV; Conn. Const., art. I, § 8. State v. Fernandez, 198 Conn. 1, 10, 501 A.2d 1195 (1985); State v. Gordon, 197 Conn. 413, 424D, 504 A.2d 1020 (1985).” State v. Smith, 200 Conn. 544, 549, 512 A.2d 884 (1986). A motion for a mistrial is granted only where it is apparent to the court that some occurrence during the trial has deprived a party of the opportunity for a fair trial. State v. Hill, 201 Conn. 505, 510, 523 A.2d 1252 (1986); State v. Ubaldi, 190 Conn. 559, 562, 462 A.2d 1001, cert. denied, 464 U.S. 916, 104 S. Ct. 280, 78 L. Ed. 2d 259 (1983); State v. Hawthorne, 176 Conn. 367, 372, 407 A.2d 1001 (1978). The trial court’s exercise of its broad discretion to determine whether a motion for a mistrial should be granted will be reversed on appeal only if that discretion has been abused. State v. Hancich, 200 Conn. 615, 624-25, 513 A.2d 638 (1986); State v. Smith, supra, 548; State v. Fleming, 198 Conn. 255, 264, 502 A.2d 886 (1986).

Although the defendant argues that the state, by eliciting testimony from Riley concerning the alleged homosexuality of the defendant, created prejudice that could not be remedied by a curative instruction, “ ‘the burden is on the defendant to establish that, in the context of the proceedings as a whole, the question was so prejudicial that it deprived him of a fair trial. . . . “Merely asking an improper question . . . does not necessarily mandate a mistrial.” State v. Dolphin, 195 Conn. 444, 452, 488 A.2d 812 [cert. denied, 474 U.S. 833, 106 S. Ct. 103, 88 L. Ed. 2d 84] (1985).’ State v. Fleming, 198 Conn. 255, 267, 502 A.2d 886 [cert. denied, 475 U.S. 1143, 106 S. Ct. 1797, 90 L. Ed. 2d 342] (1986).” State v. Doehrer, 200 Conn. 642, 654, 513 A.2d 58 (1986). Moreover, we have previously recognized that a prompt cautionary instruction to the jury regarding improper prosecutorial remarks or questions can obviate any possible harm to the defendant. Id.; State v. Fernandez, 198 Conn. 1, 17, 501 A.2d 1195 (1985); State v. Reid, 193 Conn. 646, 480 A.2d 463 (1984); State v. Ubaldi, supra, 563.

While we do not necessarily agree with the state’s argument that the stigma attached to homosexuality has been reduced in contemporary society so that a single reference to homosexuality does not generate the level of prejudice that such a reference would have had in past years, neither do we agree with the defendant that any prejudice induced by Riley’s testimony was incapable of amelioration by the court’s curative instruction. In the present case, the court dismissed the jury while the grounds for the defendant’s objection to Riley’s testimony were discussed. Upon the jury’s return the court immediately instructed it to disregard Riley’s testimony. The state made no further reference to the witness’ response alleging a homosexual relationship, and the court’s final charge included an additional instruction to the jury to disregard any responses that had been stricken. When these curative measures taken by the court are assessed with the evidence presented by the state, we are not persuaded that this is one of the “ ‘extreme cases where it appears that the [state’s] question . . . [was] clearly calculated to inflame the minds of the jury and is of such character as to suggest the impossibility of withdrawing the impression produced on their minds.’ White v. State, 444 S.W.2d 921, 922 (Tex. Crim. App. [1969]).” State v. Hafner, 168 Conn. 230, 252-53, 362 A.2d 925, cert. denied, 423 U.S. 851, 96 S. Ct. 95, 46 L. Ed. 2d 74 (1975). In view of the circumstances of the present case, we cannot conclude that the trial court abused its discretion in determining that the defendant had not been deprived of a fair trial. The defendant’s motion for a mistrial on the basis of Riley’s testimony was properly denied.

IV

The defendant’s final claim is that the trial court committed reversible error in denying his motion for a mistrial based on the testimony of Officer Herlihy. Early in the state’s case-in-chief, Herlihy testified as follows:

“Q. Officer, obviously you cannot relate the details of what these people told you, but could you just generally tell us what the information was concerning?

“A. That there was an argument by Building 11.”

The defendant objected to Herlihy’s response as being unresponsive to the specific question asked. The jury was excused, and in their absence, the defendant moved for a mistrial on the ground that Herlihy’s response was inadmissible hearsay that created incurable prejudice. While the trial court agreed that Herlihy’s response was unresponsive and so instructed the jury upon its return, the court denied the defendant’s motion for a mistrial. The defendant took an exception to the court’s denial of this motion.

The defendant, who incorporates his arguments on the third issue with those presented on this issue, contends that he was denied his constitutional right to a fair trial before an impartial jury because Herlihy’s testimony suggested to the jury that the defendant and Cothran were involved in an argument. This suggestion, the defendant argues, created in the minds of the jury a prejudice toward the defendant that remained throughout the trial. We are not persuaded, however, that the defendant has met his burden of proving that he was so prejudiced by this testimony that he did not receive a fair trial. State v. Doehrer, supra.

Herlihy’s response to the question posed to him, though unresponsive, did not identify any parties involved in the alleged argument, nor did it indicate the number of people involved. We therefore cannot agree with the defendant that Herlihy’s testimony would necessarily have led the jury to the conclusion that the defendant and Cothran were the parties involved in the alleged argument. We do not believe that the trial court abused its discretion by determining that the defendant had not been deprived of the opportunity for a fair trial. State v. Hancich, supra.

There is no error.

In this opinion the other justices concurred.

       The judge gave the following curative instruction: “The record will so reflect. All right. Ladies and gentlemen, the question that was asked just prior to the Court excusing you to hear further from counsel, related to the State’s question to the witness as to whether or not he was aware of any relationship between, I think he termed it JR and Cheo, but it may have been Mr. Cothran and Mr. Cruz. And the witness replied that Mr. Cothran was a homosexual. And there was some reference to Karen Crooks’ house. And before the matter went any further, I believe Mr. Mirsky objected on the basis that there was no foundation by which this witness could render an opinion as to the sexual preference, if you will, of any party. And upon hearing the offer of proof to see if there was a sufficient basis for him to be able to render an opinion along that line, the Court was satisfied that he was not capable of making that, rendering that type of an opinion. And I would ask you to disregard the reference that the witness made, characterizing Mr. Cothran, or if you felt that it went beyond that to anyone else as a homosexual. He is not capable of making that opinion, at least in the Court’s opinion, the Court’s feeling. And therefore, I have sustained the objection of Mr. Mirsky to that extent and would ask you to disregard reference in any of your deliberations up to this point in the case if that is all that develops on it. So, we’U proceed then. The Court is striking that response to the last question that was asked. I’d ask Mr. Nicholson to ask a new question, please.”

       In its charge to the jury, the court stated: “Now, there were times that the Court had ruled that the answers that were already given be stricken, or questions not be allowed. Without attempting to highlight any of them, if such did occur during the course of the trial, again, I make the same instruction to you. You are not to consider the answer that was stricken, or the question that was not allowed. And you’re not to speculate as to any answers that may have been forthcoming from a disallowed question.”

       “Even if a prosecutor’s reference in argument to the accused’s homosexual acts or tendencies is concluded to be attorney misconduct tending to prejudice the accused in the minds of the jurors, it does not necessarily follow that the accused will be entitled to a new trial ... it has generally been recognized that the prejudicial effect of a reference of this nature is capable of being cured by an appropriate instruction.” Annot., 54 A.L.R.3d 897, 901 § 2 [a].

       The court gave the following instruction: “Ladies and gentlemen, just prior to having you return to the jury room, the question was asked by Mr. Nicholson. The answer was begun to be given by Officer Herlihy and the Court, as well as Mr. Mirsky, interrupted that answer as it was going beyond the limits and the bounds of the question itself. It was not responsive directly to the question. And the Court agrees with Mr. Mirsky that it should not have been forthcoming. And I ask you to disregard any portion of that answer.
      “The Court has also indicated that there are limits within which the response may be allowed, and we have gone over that in advance to your coming out here. And I’m going to limit the responses accordingly. I’ll ask Mr. Nicholson to then rephrase his questions. And, Officer, please just answer the questions directly and be responsive to the question that’s asked of you. Note for the record that the defense has taken an exception, basically, to the Court’s rulings.”


author: Arthur H. Healey, J.

text:
    Town of East Haven v. AFSCME, Council 15, Local 1662
    (13659)
    Peteks, C. J., Healey, Shea, Glass and Hull, Js.
    Argued May 10
    decision released August 1, 1989

      Christopher M. Hodgson, for the appellant (plaintiff).

      Susan King Shaw, with whom, on the brief, was H. James Haselkamp, Jr., for the appellee (defendant).
   Arthur H. Healey, J.

This is an appeal by the plaintiff, the town of East Haven, from the judgment of a state trial referee denying its application to vacate an arbitration award, brought pursuant to General Statutes § 52-418 (a). We find no error.

The board of mediation and arbitration found the following facts. Lisa Scaramella was hired by the East Haven police department and sent to the Municipal Police Training Council for training at the Connecticut Police Academy (academy). During her training at the academy she encountered problems with her coordinator, John J. Doran, and by the end of the training session she had failed to pass enough courses to be certified. Subsequently, Scaramella was discharged as a patrol officer by the board of police commissioners for her “bad attitude.” As a member of the East Haven Police Union, Local 1662 (union), and pursuant to the collective bargaining agreement entered into between the town of East Haven and the union, Scaramella filed a grievance with the union alleging, inter alia, that her dismissal was based on sex discrimination. The union submitted the grievance to the Connecticut board of mediation and arbitration (board).

The submission agreed upon by the parties was as follows: “Was Officer Scaramella disciplined for just cause proven beyond a reasonable doubt? If not, what is the remedy? This submission limits the authority of the arbitrators to decide these issues on a contractual basis and the grievant or the union [is] not precluded from further action under state and federal laws.” The board found Scaramella’s discharge “was based in significant respects on sex-based discrimination” and that her coordinator at the academy, Doran, had demonstrated an apparent dislike toward her, thereby precluding any beneficial work relationship. The arbitration award stated: “The grievant was not discharged for just cause. She is ordered reinstated with no loss of pay or seniority. She shall be a probationary employee for six months and shall be required to complete her training at the Academy within that period. She shall be allowed to return to the Academy and someone other than Mr. Doran shall be the coordinator of her course.”

The plaintiff applied to the Superior Court pursuant to General Statutes § 52-418 (a) (4) to vacate the award. From the state trial referee’s denial of the application to vacate the award, the plaintiff appealed to the Appellate Court. We transferred the appeal to ourselves, pursuant to Practice Book § 4023.

The plaintiff contends that the trial referee erred in failing to vacate the award pursuant to § 52-418 (a) (4) because the arbitrators exceeded their authority in awarding a remedy beyond the contractual terms of the collective bargaining agreement and in ordering the academy, a nonparty to the proceeding, to perform an act necessary to enforce the award. The plaintiff maintains, therefore, that the award is not mutual, final and definite. Specifically, the plaintiff argues that the arbitrators had no authority to send Scaramella back to the academy and to order someone other than Doran to act as her coordinator.

This court has consistently favored arbitration as an alternative method for resolving disputes because it avoids the “ ‘ “formalities, delay, expense and vexation of ordinary litigation.” . . . ’ ” Hartford v. Board of Mediation & Arbitration, 211 Conn 7, 14, 557 A.2d 1236 (1989), quoting O & G/O’Connell Joint Venture v. Chase Family Partnership No. 3, 203 Conn. 133, 145, 523 A.2d 1271 (1987); Waterbury Teachers Assn. v. Waterbury, 164 Conn. 426, 434, 324 A.2d 267 (1973). “[Arbitration is a creature of contract and the parties delineate the power of the arbitrator by the terms of the submission and their agreement.” Bruno v. Department of Consumer Protection, 190 Conn. 14, 18, 458 A.2d 685 (1983); Carroll v. Aetna Casualty & Surety Co., 189 Conn. 16, 20, 453 A.2d 1158 (1983). Therefore, judicial review of an arbitrator’s award is limited in scope. The determination of whether an arbitration board has exceeded its authority in violation of § 52-418 (a) (4) is limited to a comparison of the award with the submission. Hartford v. Board of Mediation & Arbitration, supra, 14; New Haven v. AFSCME, Council 15, Local 530, 208 Conn. 411, 415-16, 544 A.2d 186 (1988). O & G/O’Connell Joint Venture v. Chase Family Limited Partnership No. 3, supra, 153.

In this case, the submission requested the arbitrators to decide whether Scaramella’s dismissal for just cause was proven beyond a reasonable doubt and, if not, to determine the remedy. The arbitrators found that Scaramella had not been dismissed for just cause and ordered that she be reinstated with no loss of pay or seniority. The plaintiff does not dispute the arbitrators’ finding of lack of just cause but does dispute the remedy portion of the award.

First, the plaintiff argues that the arbitrators exceeded their authority in ordering Scaramella back to the academy because the collective bargaining agreement does not contain a provision for reinstatement in the academy. We disagree. The collective bargaining agreement states in article IV, § 3: “Any employee who has been . . . discharged and who is subsequently exonerated, shall be reinstated without prejudice or loss of seniority and compensated for any loss of wages.” It is reasonable to assume, in the absence of limiting language, that this general provision in the agreement applies to all members of the East Haven police union. If the union member is a probationary employee, as Scaramella was, and is enrolled in the academy, then “reinstatement without prejudice” may include reinstatement in the academy within the discretion of the arbitrators. The only restriction in the submission was that the arbitrators’ decision was to be based on the collective bargaining agreement, which would include article IV, § 3. The parties freely bargained for the use of arbitration to resolve this type of dispute and having done so are bound by the decision rendered. Milford Employees Assn. v. Milford, 179 Conn. 678, 684, 427 A.2d 859 (1980); Board of Education v. Waterbury Teachers Assn., 168 Conn. 54, 62, 357 A.2d 466 (1975). Therefore, the arbitrators did not exceed their authority in interpreting the contract to allow Scaramella’s return to the academy and to order someone other than Doran to act as her coordinator.

The plaintiff next argues that the literal interpretation of the award is an order to the academy, rather than the town, to accept Scaramella as a probationary employee and to have someone other than Doran as her coordinator. Because the academy was not a party to the arbitration proceeding, the plaintiff maintains that the award is void. In the present case, the arbitrators’ authority was defined by the submission and the collective bargaining agreement entered into between the plaintiff and the defendant union. The academy was neither a party to the agreement nor a party to the arbitration proceedings. Just as a court cannot render a judgment enforceable against a nonparty; Graham v. Zimmerman, 181 Conn. 367, 373-74, 435 A.2d 996 (1980); arbitrators are similarly limited in authority. Dillon v. American Brass Co., 135 Conn. 10, 15, 60 A.2d 661 (1948). Therefore, under the collective bargaining agreement and the submission, and our well settled rules governing the jurisdiction of arbitrators, their authority was limited to rendering a remedy that was enforceable only against the town.

“Every reasonable presumption and intendment will be made in favor of the award and of the arbitrator’s acts and proceedings. Hence, the burden rests on the party challenging the award to produce evidence sufficient to show that it does not conform to the submission.” Bic Pen Corporation v. Local No. 134, 183 Conn. 579, 585, 440 A.2d 774 (1981); Milford Employees Assn. v. Milford, supra, 683; Ramos Iron Works, Inc. v. Franklin Construction Co., 174 Conn. 583, 590, 392 A.2d 461 (1978). There are two possible interpretations of the award. One, suggested by the plaintiff, is that the award is an order to the academy to reinstate Scaramella and to have someone other than Doran to act as her coordinator. This interpretation, however, is contrary to the basic principles of law governing the arbitrators’ jurisdiction as stated above. A second interpretation of the award is that it is an order to the town to make reasonable efforts to seek the reinstatement of Scaramella in the academy and to seek to arrange for a different coordinator. This interpretation comports with the submission, collective bargaining agreement and the limits on the arbitrators’ jurisdiction. Where there are two reasonably possible interpretations of an arbitrator’s award, one upholding and the other invalidating the award, the presumption of the validity of an award requires this court to adopt the one that supports its validity. See Bic Pen Corporation v. Local No. 134, supra. A court should liberally construe an award whenever possible to uphold its validity. Gary Excavating Co. v. North Haven, 160 Conn. 411, 413, 279 A.2d 543 (1971). We construe the award, therefore, as an order to the town to make reasonable efforts to reinstate Scaramella in the academy and to have someone other than Doran to act as her coordinator.

Under this interpretation of the award, the arbitrators did not exceed their powers but acted within their authority as defined by the submission and by the agreement. Therefore, as between the town and the union, the award is mutual, final and definite.

There is no error.

In this opinion the other justices concurred.

       General Statutes § 52-418 provides; “vacating award, (a) Upon the application of any party to an arbitration, the superior court for the judicial district in which one of the parties resides or, in a controversy concerning land, for the judicial district in which the land is situated or, when the court is not in session, any judge thereof, shall make an order vacating the award if it finds any of the following defects: (1) If the award has been procured by corruption, fraud or undue means; (2) if there has been evident partiality or corruption on the part of any arbitrator; (3) if the arbitrators have been guilty of misconduct in refusing to postpone the hearing upon sufficient cause shown or in refusing to hear evidence pertinent and material to the controversy or of any other action by which the rights of any party have been prejudiced; or (4) if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.”

       The submission also requested the arbitrators to decide two issues involving the procedural aspects of the hearing with the board of police commissioners. The arbitrators, however, did not find it necessary to decide these issues because they disposed of the case on the just cause issue.

       Although the union urges the court to construe the award as a mandatory order to the town that would require the academy to accept Scaramella, for the reasons discussed above, this construction of the award would be beyond the arbitrators’ jurisdictional scope and thus void.

       Further, the plaintiff asserts that if the award is construed to be an order against the academy, there may exist a violation of the separation of powers principle found in article second of and amendment eighteen to the Connecticut constitution. We need not address this issue because we have already concluded that the award is an order to the town and not to the academy.


author: Callahan, J.

text:
    William C. Spicer, Jr., et al. v. Noank Fire District Zoning Commission
    (13678)
    Shea, Callahan, Glass, Covello and Hull, Js.
    Argued June 7
    decision released August 1, 1989

      Frank N. Eppinger, with whom, on the brief, was Mark Oberlatz, for the appellants (plaintiffs).

      Cheryl V. Helms, with whom, on the brief, was Emmet L. Cosgrove, for the appellee (defendant).
   Callahan, J.

The issue in this case is whether the trial court erred in denying the motion of the plaintiffs to set aside the judgment dismissing their appeal from the decision of the defendant, the Noank fire district zoning commission (commission). We find no error.

The plaintiffs, William C. Spicer, Jr., and Doris M. Spicer, are the owners of property that was included in a site plan review submitted to the commission by William C. Spicer III and John Spicer (the applicants). The applicants lease the property in question from the plaintiffs and they own and operate Spicer’s Marina, which is located thereon. On October 8,1987, the commission approved the applicants’ site plan with modifications unacceptable to the plaintiffs. On October 23, 1987, the plaintiffs appealed to the Superior Court from the decision of the commission claiming in the first count of their petition that they were “aggrieved by the decision of the Commission because their use, enjoyment and value of the premises [was] impaired, depreciated and diminished by reason of the decision of the Commission which denies them the full use of their property by ehminating the full and legal and valid nonconforming uses and requiring, inter alia, a buffer along the easterly side of the Spicer’s Marina.” In the second count of their petition, the plaintiffs sought damages for the commission’s allegedly unconstitutional taking of their property under 42 U.S.C. § 1983.

In commencing their appeal, the plaintiffs used the civil service form JD-CV-1 and named the commission as the sole defendant. Service was made on the commission by a sheriff who left copies of the writ, summons and complaint with the clerk of the town of Groton and also with Frank Socha, the chief executive of the Noank fire district, Ralph M. Reynolds, the zoning enforcement officer of the Noank fire district, and Russell A. Fowler, chairman of the commission. The municipal clerk for the Noank fire district was neither cited, served, nor delivered a copy of the plaintiffs’ appeal.

The commission subsequently moved to dismiss count one of the plaintiffs’ appeal for lack of jurisdiction claiming that they had failed to cite or serve the clerk of the municipality as required by General Statutes § 8-8 (b). On February 4, 1988, the trial court granted the defendant’s motion. The plaintiffs thereafter moved to set aside the judgment of dismissal claiming that Public Acts 1988, No. 88-79, § 3 (a), validated their appeal. On September 22,1988, the court denied the plaintiffs’ motion concluding that Public Acts 1988, No. 88-79, § 3 (a), required that the clerk of the municipality be served and that the plaintiffs’ failure to do so rendered their appeal subject to dismissal. The plaintiffs subsequently petitioned the Appellate Court for certification for review of the trial court’s denial of their motion to set aside the judgment of dismissal. On November 3, 1988, the Appellate Court granted the plaintiffs’ petition and, thereafter, this court transferred the appeal to itself pursuant to Practice Book § 4023.

On appeal, the plaintiffs claim that, although they neither cited, served nor delivered their appeal to the municipal clerk of the Noank fire district, their appeal is not jurisdictionally defective because § 8-8 (b) as supplemented by Public Acts 1988, No. 88-79, § 3 (a), validates it. We disagree.

In Simko v. Zoning Board of Appeals, 205 Conn. 413, 418-19, 553 A.2d 879 (1987) (Simko I), and Simko v. Zoning Board of Appeals, 206 Conn. 374, 377, 382, 538 A.2d 202 (1988) (Simko II), this court held that the chairman or clerk of the zoning commission and the clerk of the municipality are necessary parties to the initiation of a zoning appeal to the Superior Court and that § 8-8 (b), as amended by Public Acts 1985, No. 85-284, requires the appellant to cite and serve both. See also Capalbo v. Planning & Zoning Board of Appeals, 208 Conn. 480, 484-85, 547 A.2d 528 (1988); Andrew Ansaldi Co. v. Planning & Zoning Commission, 207 Conn. 67, 69-70, 540 A.2d 59 (1988). Failure to comply strictly with the provisions of § 8-8 (b) renders the appeal subject to dismissal. Capalbo v. Planning & Zoning Board of Appeals, supra, 485; Andrew Ansaldi Co. v. Planning & Zoning Commission, supra; Simko II, supra, 383; Simko I, supra, 421.

Section 8-8 was supplemented by the legislature in 1988 by Public Acts 1988, No. 88-79, § 3 (a), to save many of the appeals invalidated by Simko I and Simko II. Our first opportunity to consider the effect of the 1988 saving statute came in Capalbo v. Planning & Zoning Board of Appeals, supra, 485, where we stated that “[pjursuant to [§] (3) (a) of the validating act, four conditions must exist for a zoning appeal to be validated: (1) it must have been taken on or after October 1,1985; (2) it must have been taken prior to December 1,1987; (3) a ‘final judgment’ must not have been rendered prior to the effective date of the act (April 20,1988); and (4) the appeal must be otherwise valid except that the appellant failed to name the clerk of the municipality as a party to the appeal.” Although the plaintiffs’ appeal in the instant case satisfies the first three conditions, it is problematical with regard to the fourth “otherwise valid” condition.

In discussing the fourth condition in Capalbo v. Planning & Zoning Board of Appeals, supra, 489, we stated that “[e]ven as amended by Public Acts 1988, No. 88-79, § 1, General Statutes § 8-8 (b) still requires the clerk of a municipality to be served with true and attested copies of the appeal [in order to confer upon the court jurisdiction to hear the plaintiffs’ appeal].” (Emphasis in original.) In Capalbo, although the plaintiffs failed to name the town clerk in the citation, a copy of their appeal was delivered to him. We stated that although actual delivery of an appeal to a party without direction in the citation to serve that party was not legally “service,” the plaintiffs’ appeal was validated under the saving statute because the legislature did not intend for appeals from the decisions of the zoning commission to be invalidated for technical defects. Id., 489. Similarly, in Ilvento v. Frattali, 210 Conn. 432, 555 A.2d 985 (1989), we held that the appeal was validated under Public Acts 1988, No. 88-79, § 3 (a), where the plaintiffs had failed to name the chairman or the clerk of the planning and zoning commission as a necessary party but did, in fact, deliver a true and attested copy of the appeal to the chairman of the commission. Our holding in Evento was based on the fact that the commission had “received adequate notice of the plaintiffs’ appeal.” Id., 434; see also Schwartz v. Planning & Zoning Commission, 208 Conn. 146, 151, 543 A.2d 1339 (1988) (jurisdiction found where municipality received adequate notice of appeal); compare Andrew Ansaldi Co. v. Planning & Zoning Commission, supra, 69-70 (no error in trial court’s dismissal of appeal where plaintiff failed to serve chairman or clerk of commission as required by General Statutes § 8-28 [a]).

In contrast to Capalbo and Evento, the clerk of the municipality in the present case did not receive a copy of the plaintiffs’ appeal. We do not believe that the legislature intended Public Acts 1988, No. 88-79, § 3 (a), to extend to the circumstances presented in this case. Absent actual delivery of a copy of the plaintiffs’ appeal to the clerk of the municipality, the appeal must be dismissed for lack of jurisdiction.

There is no error.

In this opinion the other justices concurred.

       The applicants are not parties to this appeal.

       Count two is not in question in the present appeal.

       General Statutes (Rev. to 1987) § 8-8 (b) provides in pertinent part: “Notice of such appeal shall be given by leaving a true and attested copy thereof with, or at the usual place of abode of, the chairman or clerk of said board, and by serving a true and attested copy upon the clerk of the municipality. The appeal shall state the reasons upon which it has been predicated and shall not stay proceedings upon the decision appealed from, but the court to which such appeal is returnable may, on application, on notice to the board and on cause shown, grant a restraining order.”

       Public Acts 1988, No. 88-79, § 3 (a), enacted April 20, 1988, supplemented General Statutes § 8-8 by adding, inter alia: “Any appeal of a decision of a zoning commission, planning commission, planning and zoning commission or zoning board of appeals taken on or after October 1, 1985 and prior to December 1,1987 in which a final judgment has not been entered prior to the effective date of this act, otherwise valid except that the party taking such appeal failed to name the clerk of the municipality as a party to the appeal in the appeal citation, is validated. . . .”

       In Kenney v. Planning & Zoning Board, 18 Conn. App. 549, 552, 559 A.2d 721 (1989), the Appellate Court held that Public Acts 1988, No. 88-79, § 3 (a), validated a zoning appeal in which the town clerk was neither cited nor actually served with copies of the plaintiffs’ appeal. In Kenney, the Appellate Court stated that our holdings in Ilvento v. Frattali, 210 Conn. 432, 555 A.2d 985 (1989), Capalbo v. Planning & Zoning Board of Appeals, 208 Conn. 480, 547 A.2d 528 (1988), and Schwartz v. Planning & Zoning Commission, 208 Conn. 146, 543 A.2d 1339 (1988), mandated a broad reading of the validating statute. Based on such an interpretation, the court concluded that the plaintiffs’ failure to cite and serve the town clerk was a “technical” defect that would not render the appeal subject to dismissal. Kenney v. Planning & Zoning Board, supra, 552. We do not agree. Failure to deliver a copy of the appeal to the town or municipal clerk comprises more than a technical defect. Without at least actual delivery of a copy of the appeal, the provision of General Statutes § 8-8 (b) requiring service “upon the clerk of the municipality” would be totally ignored. In Ilvento, Capalbo and Schwartz, we found that jurisdiction existed because there was actual delivery of a copy of the appeal to the town or municipal clerk.

       In the present case the plaintiffs cited and served the clerk of the town of Groton. This does not, however, satisfy the requirements of General Statutes § 8-8 (b). Municipality is defined in General Statutes § 8-la as including “a district establishing a zoning commission under section 7-326.” Accordingly, the plaintiffs were required to cite and serve the clerk of the Noank fire district, which has established such a zoning commission. The plaintiffs concede that no service has been made upon the clerk of the Noank fire district.


author: Covello, J.

text:
    Glenn Pack v. William Burns, Commissioner of Transportation
    (13566)
    Peters, C. J., Shea, Glass, Covello and Hull, Js.
    Argued May 3
    decision released August 1, 1989

      Michael J. McCabe, for the appellant (plaintiff).

      Jeffrey A. Blueweiss, for the appellee (defendant).
   Covello, J.

This is a negligence action seeking damages for injuries allegedly sustained as the result of a defective highway. The dispositive issue is whether the inclusion of the commissioner of transportation (commissioner) as a defendant after the expiration of the two year statute of limitations found in General Statutes § 13a-144 constituted: (1) the addition of a new party against whom legal proceedings were not seasonably started; or (2) an amendment correcting an error in the original writ, summons and complaint that had been properly served within the two year limitation period but misnamed the commissioner. We conclude that the addition of the commissioner of transportation constituted an amendment correcting a circumstantial defect. As such, the amendment related back to the date of service of the original writ, summons and complaint and was therefore not fatal to the plaintiffs cause of action. See Keenan v. Yale New Haven Hospital, 167 Conn. 284, 285, 355 A.2d 253 (1974).

Examination of the record discloses that on March 7, 1985, the plaintiff, Glenn Pack, instituted this action against the town of Fairfield and the “State of Connecticut Transportation Commission” seeking damages for injuries sustained on May 13,1984, when the bicycle he was riding allegedly hit a pothole on Route 58 in Fairfield, flipping him over the handlebars and onto the pavement. On June 20, 1984, the plaintiff sent a letter to the commissioner of transportation, giving him the required notice of his intention to make a claim. See General Statutes § 13a-144. On March 13, 1985, service of process was made upon and accepted by an employee of the commissioner of transportation, on his behalf, at the offices of the commissioner. The action against the town of Fairfield was withdrawn on April 11, 1985.

On January 21,1986, the defendant, “State of Connecticut, Department of Transportation,” moved to strike the complaint, claiming that the proper party defendant was the “Commissioner of Transportation,” and that a “State of Connecticut Transportation Commission” did not exist. The trial court, Gerely, J., thereafter denied the motion. In the interim, on January 31, 1986, the plaintiff filed a motion to cite in the “Commissioner of Transportation, J. William Burns as the proper party defendant . . . [as] [t]he State of Connecticut Transportation Commission [was] improperly named as the party defendant.” The court, W. McGrath, J., granted the motion. On October 10,1986, the commissioner was served with an amended complaint.

On September 21, 1987, after the pleadings were closed, the commissioner moved for summary judgment, maintaining that the interval between the time of the plaintiff’s alleged injury, May 13,1984, and the time he was served with the amended complaint, October 10, 1986, exceeded the two year limitation period for the initiation of such actions contained in § 13a-144, and that therefore the plaintiff had no cause of action against him. The trial court, Jacobson, J., granted the motion and rendered judgment for the defendant. The plaintiff then appealed to the Appellate Court. We thereafter transferred the matter to ourselves pursuant to § 4023 of the rules of practice.

The dispositive issue is whether the subsequent addition of the commissioner of transportation introduced a new party to the proceedings or simply corrected a misnomer in describing the party originally summoned to court. We conclude that it was a correction of a defect in description in the original writ, summons and complaint and that this amendment therefore related back to the timely service of the original writ, summons and complaint within the two year statute of limitations.

In World Fire & Marine Ins. Co. v. Alliance Sandblasting Co., 105 Conn. 640, 642, 136 A. 681 (1927), the plaintiff sued “ ‘The Alliance Sandblasting Company, a corporation of New York having an office and carrying on business in the City of Hartford.’ ” The trial court thereafter authorized an amendment to the writ that struck the name of the defendant as it originally appeared and substituted “Julius Goodman doing business under the name of the Alliance Sandblasting Company.” Id. The defendant claimed that this constituted a substitution of parties. Id. In rejecting this claim, we stated that “[t]he plaintiff’s mistake was not as to the entity itself—not as to the party sued, but in describing what kind of an entity the defendant was; it sued the proper party, but in so doing misdescribed that party, not in respect to name, but solely as to status, as being an artificial instead of a personal entity. . . . The change made by the amendment did not affect the identity of the party sought to be described, but merely made correct the description of the real party sued; it did not substitute or bring in a new party.” Id., 643.

“ ‘The effect given to such a misdescription usually depends upon the question whether it is interpreted as merely a misnomer or defect in description, or whether it is deemed a substitution or entire change of party; in the former case an amendment will be allowed, in the latter it will not be allowed.’ ” Id., 643-44.

In Motiejaitis v. Johnson, 117 Conn. 631, 636, 169 A. 606 (1933), the plaintiff sued “ ‘J. Johnson & Sons, Incorporated, a corporation duly organized under the laws of the State of Connecticut. . . .’” After a verdict had been entered, but before the trial court rendered judgment, the plaintiff was allowed to amend the writ by striking out the words quoted and substituting “ ‘Joseph C. Johnson, New Haven, Connecticut, and Joseph C. Johnson as executor of the estate of Albert J. Johnson . . . they having been co-partners in trade . . . doing business as J. Johnson & Sons . . . . ’ ” We considered against whom the plaintiff “intended to bring her action”; id., 637; and concluded that “the trial court committed no error in permitting an amendment naming the real parties.” Id., 638.

In Servatius v. United Resorts Hotels, 85 Nev. 371, 455 P.2d 621 (1969), the Nevada Supreme Court considered three factors in determining if an amendment simply corrects a misnomer, rather than substitutes a new party. “They are that the proper party defendant (1) have actual notice of the institution of the action; (2) knew that it was the proper defendant in the action, and (3) was not in any way misled to its prejudice.” Id., 373.

In the matter before us, it is evident that the plaintiff intended to sue the commissioner of transportation and that the commissioner knew that he was the intended defendant. First, all the parties agree that there is no such entity as the transportation commission. It can be fairly assumed that the plaintiff did not intend to sue a nonexistent commission. See Sharkiewicz v. Smith, 142 Conn. 410, 412, 114 A.2d 691 (1955). Second, the statutory notice required by General Statutes § 13a-144 was properly furnished in this case and was directed to the “Honorable J. William Burns, Commissioner of Transportation.” Third, service of the process that began the action was made at the office of the commissioner of transportation, upon an employee of the commissioner, who was authorized to accept service for him. Fourth, the complaint stated that “[t]he commissioner of transportation is responsible for the maintenance of all highways, bridges and sidewalks . .. . and it is the duty of such commissioner to keep and maintain the highways, bridges and sidewalks in a reasonably safe condition.” (Emphasis added.) Finally, the motion to strike the original complaint stated: “[T]he proper party defendant . . .is the Commissioner of Transportation. ” (Emphasis added.)

The commissioner has not been misled to his prejudice. He has been represented by the same counsel throughout these proceedings and has fully participated in the defense of the action. He makes no claim of prejudice nor does our examination of the record disclose this to be the case.

We have recently had occasion to reexamine General Statutes § 52-123. See Rogozinski v. American Food Service Equipment Corporation, 211 Conn. 431, 559 A.2d 1110 (1989). Section 52-123 provides: “No writ, pleading, judgment or any kind of proceeding in court or course of justice shall be abated, suspended, set aside or reversed for any kind of circumstantial errors, mistakes or defects, if the person and the cause may be rightly understood and intended by the court.” In Rogozinski we pointed out that “[t]he statute is used to provide relief from defects in the text of the writ itself but is not available to cure irregularities in the service or return of process.” Id., 434. In our view, the designation of the transportation commissioner as the transportation commission is a defect in the text of the writ falling squarely within the purview of § 52-123.

There is error, the judgment is set aside and the case is remanded with direction to deny the motion for summary judgment.

In this opinion the other justices concurred.

       General Statutes § lSa-144 provides in part: “No such action shall be brought except within two years from the date of such injury, nor unless notice of such injury and a general description of the same and of the cause thereof and of the time and place of its occurrence has been given in writing within ninety days thereafter to the commissioner.”