author: Callahan, J.

text:
    Summit Hydropower Partnership v. Commissioner of Environmental Protection et al.
    (14618)
    (14619)
    Peters, C. J., Callahan, Norcott, Katz and Palmer, Js.
    Argued May 4
    decision released August 3, 1993

      David H. Wrinn, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Joseph Rubin, assistant attorney general, for the appellant in Docket No. 14618 (named defendant).

      Gregory A. Sharp, with whom was Marcus G. Organschi, for the appellant in Docket No. 14619 (defendant town of Putnam).

      Roger E. Koontz, for the appellee in both cases (plaintiff).
   Callahan, J.

The principal issue in this appeal is whether the proceedings before an administrative agency, wherein the agency denied the plaintiffs request for state water quality certification for a proposed hydroelectric facility, constituted a “contested case” under General Statutes § 4-166 (2). The plaintiff, Summit Hydropower Partnership, filed an administrative appeal in the Superior Court from a decision of the named defendant, the commissioner of environmental protection (commissioner), denying its request for water quality certification. The commissioner based his denial on his determination that the proposed facility did not comply with certain state water standards. The Superior Court, Fuller, J., sustained the plaintiffs administrative appeal. The commissioner and the town of Putnam appealed from the trial court’s judgment to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). We reverse the judgment of the trial court.

The following facts are relevant. The plaintiff proposed to construct a hydroelectric facility on the Quinebaug River at Cargill Falls in Putnam. Cargill Falls is located at the center of Putnam. Because of its central location and aesthetic appeal, Cargill Falls has historically been regarded, in the words of former Mayor Donald St. Onge, as “a focal point of [the] community.” Overlooking the falls, on the east bank of the Quinebaug River, is a town park. The falls and the immediate area make up the landmark which has been depicted on the cover of the Southern New England Telephone Company’s directory for the Putnam area.

Since 1730, Cargill Falls has been used for the production of hydropower. The project proposed by the plaintiff would involve the construction of a powerhouse and tailrace next to the existing town dam. The project, when constructed, would be expected to generate approximately 5,400,000 kilowatt-hours per year of electricity. A tailrace is a device that, in this particular case, would continuously reroute the river’s flow into the powerhouse and return the water one hundred feet downstream from the point at which the flow had been initially diverted. Because the water coming in upstream from the dam would be diverted through the turbines and discharged farther downstream, the defendants feared that the proposed facility would dry up the falls, leaving in its place “a band of rocks.”

In September, 1988, the plaintiff filed an application with the Federal Energy Regulatory Commission for a license to construct the proposed project. Pursuant to § 401 (a) (1) of the Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C. § 1341 (a) (1) (1988), commonly known as the Clean Water Act (CWA), the plaintiff also filed a copy of the application with the water management bureau of the Connecticut department of environmental protection and requested certification that the proposed project was in compliance with federal and state water quality standards. Section 401 certification is a condition precedent to the issuance of a license by the Federal Energy Regulatory Commission to construct and operate a hydroelectric facility.

By letter dated August 10, 1989, the commissioner denied the plaintiff’s request for § 401 certification on the ground that the proposed project did not comply with the state’s water quality standards. The commissioner noted that the project would adversely affect: “1. the physical, chemical and biological integrity and uninterrupted instantaneous flow of the river; 2. the designated uses for the river, including the recreational use and enjoyment, fish, other aquatic life and wildlife and their habitat, and other legitimate uses of the river; and 3. the aesthetic quality of the river.” The commissioner offered to hold a public hearing on the denial of the plaintiff’s request. The plaintiff appealed the commissioner’s denial and requested a hearing. The town of Putnam intervened pursuant to General Statutes § 22a-19 and participated in the hearing, which was held in December, 1989, and January, 1990.

At the hearing, an adjudicator appointed by the commissioner heard evidence and testimony and reviewed exhibits. The adjudicator noted that the Cargill Falls area of the Quinebaug River was classified as class C surface water under the state’s water quality standards with a goal of achieving class B status. The adjudicator used the class B water quality criteria to evaluate the project. He concluded that the proposed project would substantially reduce the flow over Cargill Falls to “an aesthetically undesirable level” and would impair existing designated recreational uses at the site, including the recreational viewing of the falls. The adjudicator concluded that the proposed project did not comply with the state’s water quality standards and recommended that the commissioner uphold his previous denial of the plaintiff’s request for § 401 certification.

The plaintiff requested oral argument directly before the commissioner. The commissioner granted the request and received briefs from all parties and heard oral argument in April, 1991. In September, 1991, after reviewing the record of the hearing, the briefs, and a copy of the Federal Energy Regulatory Commission application for the proposed facility, the commissioner affirmed his initial denial of the plaintiff’s request and issued his final decision denying the plaintiff’s request for § 401 certification. In doing so, the commissioner adopted the adjudicator’s conclusion that because the project would drastically reduce the river’s flow and impact its recreational uses, it would violate the state’s water quality standards.

In October, 1991, the plaintiff appealed the commissioner’s decision to the Superior Court purportedly pursuant to General Statutes (Rev. to 1987) § 4-183 (a) of the Uniform Administrative Procedure Act (UAPA). In its appeal, the plaintiff asked that the court reverse the commissioner’s final decision denying its request for § 401 certification. On July 20,1992, the trial court issued its memorandum of decision concluding that the commissioner had improperly denied the plaintiff’s request for § 401 certification and directed him to issue a certificate. This appeal followed.

The defendants argue on appeal that the trial court improperly: (1) denied the commissioner’s motion to dismiss the plaintiff’s administrative appeal because the plaintiff had not adequately exhausted its administrative remedies; (2) concluded that the plaintiff’s administrative appeal from the proceedings on its request for § 401 certification constituted a contested case under General Statutes (Rev. to 1987) § 4-166 (2) from which the plaintiff had a right to appeal; (3) concluded that the commissioner had exceeded his authority under state statutes and regulations by denying the plaintiffs request for § 401 certification; (4) concluded that the commissioner had exceeded his authority under federal law by denying the plaintiffs request for § 401 certification; (5) substituted its judgment for that of the commissioner and determined that the commissioner had applied legally vague and undefined aesthetic standards to the plaintiffs request for § 401 certification by denying the request on aesthetics alone; (6) failed to defer to the commissioner’s interpretation of the state’s water quality standards and the Federal Water Pollution Control Act; and (7) directed the commissioner to issue the requested certification on remand. We conclude that the trial court improperly determined that the plaintiff’s appeal had been taken from a contested case and reverse the court’s judgment.

The defendants contend that the trial court incorrectly determined that the proceedings before the environmental protection agency constituted a “contested case” under § 4-166 (2). They argue, consequently, that the court improperly concluded that it possessed subject matter jurisdiction over the plaintiff’s appeal. We agree.

Judicial review of an administrative decision is a creature of statute. Tarnopol v. Connecticut Siting Council, 212 Conn. 157, 161, 561 A.2d 931 (1989); Park City Hospital v. Commission on Hospitals & Health Care, 210 Conn. 697, 702, 556 A.2d 602 (1989). Section 4-183 (a) of the UAPA, at the time this action was filed, provided that “[a] person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision in a contested case is entitled to judicial review by way of appeal under this chapter . . . .” (Emphasis added.) A “contested case” is defined in § 4-166 (2) as “a proceeding . . . in which the legal rights, duties or privileges of a party are required by statute to be determined by an agency after an opportunity for hearing or in which a hearing is in fact held . . . .” (Emphasis added.)

The statutory requirement that an appeal to the Superior Court may be taken only from a contested case as defined in § 4-166 (2) is an obvious indicator that the legislature did not intend to authorize a right of appeal to the Superior Court from every determination of an administrative agency. See New England Dairies, Inc. v. Commissioner of Agriculture, 221 Conn. 422, 427, 604 A.2d 810 (1992); Connecticut Bank & Trust Co. v. Commission on Human Rights & Opportunities, 202 Conn. 150, 154, 520 A.2d 186 (1987). “The UAPA grants the Superior Court jurisdiction over appeals of agency decisions only in certain limited and well delineated circumstances.” New England Dairies, Inc. v. Commissioner of Agriculture, supra.

“[W]e have determined that even in a case where a hearing is ‘in fact held,’ in order to constitute a contested case, a party to that hearing must have enjoyed a statutory right to have his ‘legal rights, duties, or privileges’ determined by that agency holding the hearing. ... In the instance where no party to a hearing enjoys such a right, the Superior Court is without jurisdiction over any appeal from that agency’s determination.” (Citations omitted.) Id. In Herman v. Division of Special Revenue, 193 Conn. 379, 382, 477 A.2d 119 (1984), we stated: “The test for determining contested case status has been well established and requires an inquiry into three criteria, to wit: (1) whether a legal right, duty or privilege is at issue, (2) and is statutorily required to be determined by the agency, (3) through an opportunity for hearing or in which a hearing is in fact held.” (Emphasis added.)

In April, 1992, the defendants filed a motion in the Superior Court to dismiss the plaintiffs action based on the lack of subject matter jurisdiction. In their motion the defendants claimed, among other things that the administrative proceeding, in which the § 401 certification had been determined adversely to the plaintiff, was not a “contested case” as defined in § 4-166 (2).

The trial court denied the defendants’ motion to dismiss. In its memorandum of decision addressing the defendants’ motion, the court concluded that the plaintiff’s appeal was from a contested case as defined in § 4-166 (2) and that the court had subject matter jurisdiction over the appeal. The trial court noted that the proceedings before the commissioner satisfied Herman’s three-pronged test. Specifically, the trial court, in addressing the first two prongs of the Herman test, stated that the plaintiff was legally required to obtain a § 401 certificate from the commissioner as a prerequisite to obtaining a federal license to build the proposed hydroelectric facility and that the commissioner was required by statute to determine such right after providing an opportunity for a meaningful hearing. The trial court finally noted that because a hearing in fact had been held, regardless of whether it was statutorily mandated, the third prong of the Herman test was satisfied and that consequently the plaintiff had a right to appeal.

It is undisputed that the § 401 certification process is part of a licensing scheme in which the plaintiff’s right to a certificate is placed in issue. Under § 4-166 (6) of the UAPA, a “license” is defined to include “the whole or part of any agency permit, certificate, approval, registration, charter or similar form of permission required by law . . . .” Even if, however, the plaintiff had a legal right or privilege to § 401 certification, and even if that right or privilege was denied in a proceeding before the commissioner, the plaintiff does not have a right to appeal unless the commissioner was statutorily required to determine the plaintiffs legal right or privilege to § 401 certification in a hearing or after an opportunity for a hearing. See, e.g., Lewis v. Gaming Policy Board, 224 Conn. 693, 700-701, 620 A.2d 780 (1993) (gaming policy board was not required by statute to provide a hearing to determine the continued employment of former head of the lottery unit after his employment was terminated); New England Dairies, Inc. v. Commissioner of Agriculture, supra, 429 (commissioner of agriculture was not required by statute to determine a milk dealer’s right to a license after an opportunity for a hearing); Rybinski v. State Employee’s Retirement Commission, 173 Conn. 462, 471, 378 A.2d 547 (1977) (commission was not required by statute to provide an opportunity for a hearing prior to denying a state employee’s written request to change retirement plans); Taylor v. Robinson, 171 Conn. 691, 697, 372 A.2d 102 (1976) (parole board had no statutory obligation to determine if a prisoner should be released from parole).

If the plaintiff’s rights or privileges were not statutorily required to be determined by the agency in a hearing or after an opportunity for a hearing, a “contested case” would not exist and the plaintiff would have no right to appeal pursuant to § 4-183 (a). To ascertain whether a statute requires an agency to determine the legal rights or privileges of a party in a hearing or after an opportunity for a hearing, “we need to examine all the statutory provisions that govern the activities of the particular agency or agencies in question.” Lewis v. Gaming Policy Board, supra, 701. Because the commissioner was governed in this proceeding by both state and federal statutes, we need to review both state and federal legislation to determine whether the proceedings before the commissioner constituted a contested case.

The trial court noted in its memorandum of decision that the commissioner was required by federal law, specifically § 401 (a) (1) of the CWA, to determine the plaintiffs right to § 401 certification. That section provides, in relevant part, that each state “shall establish procedures for public notice in the case of all applications for certification by it and, to the extent that it deems appropriate, procedures for public hearings in connection with specific applications.” 33 U.S.C. § 1341 (a) (1) (1988).

The trial court concluded that because obtaining § 401 certification is, pursuant to federal law, a prerequisite for obtaining a license to construct the proposed hydroelectic project, the commissioner was statutorily required to determine the plaintiffs right to certification in a hearing or after an opportunity for a hearing. The trial court supported its conclusion by noting that the state statutes governing the scope of authority of the commissioner suggest that the commissioner was statutorily required to determine the plaintiffs right to § 401 certification in a hearing or after an opportunity for a hearing. It noted, for instance, that General Statutes § 22a-424 provides in relevant part that the commissioner shall have the following powers: “(g) To hold such hearings as may be required under the provisions of this chapter and the federal Water Pollution Control Act and other applicable federal law, for which he shall have the power to issue notices by certified mail, administer oaths, take testimony and subpoena witnesses and evidence ... (k) To exercise all incidental powers necessary to carry out the purpose of this chapter and the federal Water Pollution Control Act . . . .” The trial court inferred from the grant of these powers that the legislature had intended the commissioner to exercise them in such a fashion as to require a hearing or an opportunity for a hearing to those individuals requesting § 401 certification. We disagree.

Although the commissioner clearly afforded the plaintiff a hearing that in fact was held, the commissioner was not statutorily required to do so. Neither § 401 of the CWA nor General Statutes § 22a-424 required the commissioner to determine the plaintiffs right to § 401 certification in a hearing. The procedures that any state need adopt to process § 401 water quality certification requests are determined by the statutes promulgated by each state. See Keating v. Federal Energy Regulatory Commission, 927 F.2d 616, 622 (D.C. Cir. 1991); Roosevelt Campobello International Park v. United States Environmental Protection Agency, 684 F.2d 1041, 1056 (1st Cir. 1982); see also Mobile Oil Corporation v. Kelley, 426 F. Sup. 230, 234 (S.D. Ala. 1976) (“certification under Section 401 is set up as an exclusive prerogative of the state and is not to be reviewed by [the Environmental Protection Agency] or any agency of the federal government”). The plain wording of § 401 requires only that a state agency be authorized to establish procedures to determine whether submitted requests for § 401 certification are meritorious. Moreover, the legislative history of § 401 is devoid of any legislative mandate that the designated state agency require a § 401 certification hearing. The most applicable legislative history reads: “[The] provision [§ 401] makes clear that any water quality requirements established under State law, more stringent than those requirements established under this Act, also shall through certification become conditions on any Federal license or permit. The purpose of the certification mechanism provided in this law is to assure that Federal licensing or permitting agencies cannot override State water quality requirements.” S. Rep. No. 92-414, 92d Cong., 2d Sess., reprinted in 1972 U.S. Code Cong. & Admin. News 3735. Although it is abundantly clear that the commissioner is statutorily authorized to establish procedures to determine requests for § 401 certification, it does not follow that he is statutorily required to provide a hearing to make those determinations. See Triska v. Department of Health & Environmental Control, 292 S.C. 190, 196-97, 355 S.E.2d 531 (1987)(court did not find that § 401 of the federal CWA required that the agency determine a party’s right to a § 401 certificate in a hearing).

Nor does General Statutes § 22a-424 require that the commissioner provide a hearing to determine the plaintiffs § 401 certification request. Section 22a-424 merely authorizes the commissioner to establish certain procedures and to exercise certain powers incidental thereto. To conclude that § 22a-424 mandates that the commissioner make a § 401 determination in a hearing or after an opportunity for a hearing would confuse “can” with “must” and would establish by judicial fiat a statutory requirement that the legislature did not in fact create. “The intent of the legislature, as this court has repeatedly observed, is to be found not in what the legislature meant to say, but in the meaning of what it did say.” Burnham v. Administrator of the Unemployment Compensation Act, 184 Conn. 317, 325, 439 A.2d 1008 (1981); Federal Aviation Administration v. Administrator of the Unemployment Compensation Act, 196 Conn. 546, 549-50, 494 A.2d 564 (1985). Neither our state statutes nor applicable federal statutes include any reference to a required hearing to determine § 401 certification requests. The applicable statutes, if they imply anything, imply only that Congress and the General Assembly intended that the commissioner establish procedures to determine the legal rights of applicants seeking § 401 certification. The degree of procedural formality that the commissioner was to provide to adjudicate such claims, however, was clearly left to his discretion. Consequently, in the absence of an express statutory requirement that the commissioner afford a hearing to determine the plaintiffs entitlement to § 401 certification, the trial court improperly concluded that the proceedings wherein the plaintiff’s § 401 certificate was denied constituted a contested case under § 4-166 (2).

Our conclusion is consistent with the holding of the South Carolina Supreme Court in Triska v. Department of Health & Environmental Control, supra. In Triska, the court addressed the issue of whether its state environmental agency’s denial of a § 401 certificate constituted a contested case from which a party had a right to judicial review of the agency’s decision under South Carolina’s administrative procedure act. The South Carolina agency in question had held a hearing on and denied a § 401 certification request. The plaintiff who had requested § 401 certification appealed that decision to the trial court. The trial court sustained the appeal. The South Carolina Supreme Court, after examining the statutes applicable to the § 401 certification process, held that “[t]here is no requirement in South Carolina law or Federal law that there be an opportunity for a hearing in a 401 Certification, and therefore, a ‘contested case’ does not exist in which an adjudicatory hearing is required.” Id., 196-97.

The plaintiff argues, however, that under the plain meaning of § 4-166 (2) there is no requirement that a hearing must be statutorily mandated in order to qualify for contested case status. The plaintiff urges us to construe the phrase “or in which a hearing is in fact held” in § 4-166 (2) to stand independently of the “required by statute” language preceding it. The plaintiff argues that once the first two prongs of the test set forth in Herman v. Division of Special Revenue, supra, 382, are satisfied, that is, once there exists a right, duty or privilege at issue that an agency is required by statute to determine, then it is irrelevant whether any hearing held to determine such right, duty or privilege is required by statute. Therefore, according to the plaintiff, any time a hearing is provided by an agency, that hearing, even if gratuitous, would satisfy Herman’s third prong and, assuming the satisfaction of the first two prongs, render such a proceeding a contested case for the purpose of § 4-166 (2). Otherwise, the plaintiff asserts, the “hearing in fact” language contained in § 4-166 (2) would be superfluous, a result not likely to have been intended by the legislature because “ ‘ “statutes should be construed so that no part of a legislative enactment is to be treated as insignificant and unnecessary, and there is a presumption of purpose behind every sentence, clause or phrase in a legislative enactment.” ’ ” 84 Century Limited Partnership v. Board of Tax Review, 207 Conn. 250, 263, 541 A.2d 478 (1988). We are unpersuaded.

“ ‘In construing a statute, common sense must be used, and courts will assume that the legislature intended to accomplish a reasonable and rational result.’ ” King v. Board of Education, 203 Conn. 324, 332-33, 524 A.2d 1131 (1987). Legislative intent is not to be found in an isolated phrase or sentence. Gentry v. Norwalk, 196 Conn. 596, 606, 494 A.2d 1206 (1985). When § 4-166 (2) is read as a whole, it is evident that the phrase “required by statute to be determined by an agency after an opportunity for hearing” cannot be divorced from the phrase “or in which a hearing is in fact held.” If it were otherwise, every time an agency gratuitously conducted a hearing, a “contested case” could be spawned. Such an interpretation of § 4-166 (2) would chill, to the detriment of those petitioning the agency, the inclination of an agency to hold any type of an inquiry to gather information when it was not required by statute to do so. We believe, consequently, that the phrase “or in which a hearing is in fact held” was not intended by the legislature to mean that if a hearing, not required by statute, is in fact held by agency dispensation, it will result in a contested case. Rather, a hearing must be statutorily required before a matter achieves contested case status.

Moreover, although the definition of “contested case” in § 4-166 (2) is a grammatical quagmire, the legislative history and policy underlying it suggest that we interpret the “hearing is in fact” language as being intrinsically connected to the “required by statute” language therein so that in order for a hearing to result in a contested case, the hearing must be statutorily required to be held by the agency. The phrase contained in § 4-166 (2), “or in which a hearing is in fact held,” was appended to the original definition of contested case in 1973. This addition was part of an amendment proposed from the floor of the House of Representatives on May 15, 1973. Public Acts 1973, No. 73-620, § 2. At that time, Representative Russell L. Post, Jr., stated that the proposed amendment sought “to correct an ambiguity created by a Court decision within the last month having to do with the definition of contested cases . . . .” 16 H.R. Proc., Pt. 13, 1973 Sess., p. 6436. The case apparently referred to by Representative Post is McAuliffe v. Carlson, 30 Conn. Sup. 118, 303 A.2d 746 (1973), which was published in the May 1, 1973 issue of the Connecticut Law Journal.

In McAuliffe v. Carlson, supra, the plaintiff had sought an appeal from an administrative ruling refusing him reimbursement of payments that he had made for his care in a security treatment center. The ruling in question was not made in a hearing or after an opportunity for a hearing, and no statute required that it be made in such a fashion. Id., 119. The court in McAuliffe noted: “The General Assembly did not desire to make the UAPA a vehicle for appeal of any and all administrative orders or decisions made by a state agency. The act was clearly designed to permit appeals only upon compliance with the statutory conditions set forth therein, including the specific provisions for the conduct of a hearing, or the opportunity for a hearing.” Id., 120-21. In discussing the issue of whether a hearing was statutorily required, the court noted that such a requirement underscores the importance that appeals from administrative agency decisions be available only from formal adjudications. Id., 121. The court concluded that because there was no statute requiring that the agency make a determination in a formal hearing of the plaintiff’s right to reimbursement, the plaintiff had not appealed from a contested case. The court at one point in its memorandum, however, stated: “Nevertheless, it was not a ‘contested case’ permitting judicial review thereof, under the UAPA, since no hearing was required, or held.” (Emphasis added.) Id., 120.

It appears that, by amending § 4-166 (2) to add the phrase “or in which a hearing is in fact held” to the definition of contested case, the legislature was not manifesting its intention to provide judicial review whenever an agency furnished a gratuitous hearing, but sought rather to maintain the rigid requirements for a contested case by eliminating any possible confusion generated by the ambiguous language in McAuliffe that a determination by an agency after a hearing was held, without a statutory right to a hearing, would be sufficient to constitute a contested case. We therefore reject the plaintiff’s contention that the “hearing is in fact” language in § 4-166 (2) was appended to transform every administrative proceeding in which a hearing is accorded into a contested case even if a hearing is not statutorily required.

Our conclusion is further supported by the desirability of ensuring that “the legislature, rather than the agencies, has the primary and continuing role in deciding which class of proceedings should enjoy the full panoply of procedural protections afforded by the UAPA to contested cases, including the right to appellate review by the judiciary. Deciding which class of cases qualify for contested case status reflects an important matter of public policy and ‘the primary responsibility for formulating public policy must remain with the legislature.’ State v. Whiteman, 204 Conn. 98, 103, 526 A.2d 869 (1987); see Kellems v. Brown, 163 Conn. 478, 491, 313 A.2d 53 (1972), appeal dismissed, 409 U.S. 1099, 93 S. Ct. 911, 34 L. Ed. 2d 678 (1973).” Lewis v. Gaming Policy Board, supra, 709.

In summary, we read § 4-166 (2) as manifesting a legislative intention to limit contested case status to proceedings in which an agency is required by statute to provide an opportunity for a hearing to determine a party’s legal rights or privileges. No such statute mandated that the commissioner hold a hearing to determine the plaintiff’s entitlement to § 401 certification. We conclude therefore that the proceeding in which the plaintiff’s request for such certification was denied was not a contested case and was therefore not a final decision from which the plaintiff had a right to appeal pursuant to § 4-183 (a). Consequently, we reverse the judgment and order the trial court to dismiss the plaintiffs administrative appeal for lack of subject matter jurisdiction.

The judgment is reversed and the case is remanded with direction to dismiss the plaintiff’s appeal.

In this opinion the other justices concurred.

       The defendants are the commissioner of environmental protection, the water management bureau of the department of environmental protection, the town of Putnam, and the Polymer Corporation.

       The proposed project would operate in a “run-of-the-river mode” which means that the river flow rate both upstream and downstream from the dam would not be affected because the water entering the turbines would be continuously released back into the river.

       Initially, the plaintiff proposed a minimum stream flow over the spillway of 15 cubic feet per second (cfs), which is significantly less than the current average annual stream flow of 447 cfs. In response to concerns from the department of environmental protection (department) staff that such minimum flows would not protect aquatic life, the plaintiff proposed a constant minimum stream flow of 58 cfs. Stream flow over the spillway currently exceeds 58 cfs 95 percent of the time. The department staff was concerned that the proposed flat 58 cfs release over the spillway would destroy the aesthetic quality of the fall. Consequently, the plaintiff and the department reached an agreement that the proposed minimum stream flows would range between 80 cfs to 145 cfs. The town, however, was not part of the stipulated agreement because it believed that the variable flow would sacrifice the vigor and natural beauty of the falls area.

       Section 401 (a) of the CWA provides in relevant part: “(1) Any applicant for a Federal license or permit to conduct any activity including, but not limited to, the construction or operation of facilities, which may result in any discharge into the navigable waters, shall provide the licensing or permitting agency a certification from the state in which the discharge originates or will originate, or, if appropriate, from the interstate water pollution control agency having jurisdiction over the navigable waters at the point where the discharge originates or will originate, that any such discharge will comply with the applicable provisions of sections 1311, 1312, 1313, 1316, and 1317 of this title. . . . Such State or interstate agency shall establish procedures for public notice in the case of all applications for certification by it and, to the extent that it deems appropriate, procedures for public hearings in connection with specific applications. In any case where a State or interstate agency has no authority to give such a certification, such certification shall be from the Administrator. If the State, interstate agency, or Administrator, as the case may be, fails or refuses to act on a request for certification, within a reasonable period of time (which shall not exceed one year) after receipt of such request, the certification requirements of this subsection shall be waived with respect to such Federal application. No license or permit shall be granted until the certification required by this section has been obtained or has been waived as provided in the preceding sentence. No license or permit shall be granted if certification has been denied by the State, interstate agency, or the Administrator, as the case may be.” 33 U.S.C. § 1341 (a) (1988).
      The legislative history of § 401 of the CWA, P.L. 92-500, states: “[The] provision [§ 401] makes clear that any water quality requirements established under State law, more stringent than those requirements established under this Act, also shall through certification become conditions on any
      Federal license or permit. The purpose of the certification mechanism provided in this law is to assure that Federal licensing or permitting agencies cannot override State water quality requirements.” S. Rep. No. 92-414, 92d Cong., 2d Sess., reprinted in 1972 U.S. Code Cong. & Admin. News 3735.

       Section 303 of the CWA requires that states adopt water quality standards that shall “consist of the designated uses of the navigable waters involved and the water quality criteria for such waters based on such uses.” 33 U.S.C. § 1313 (c) (2) (A) (1988). The standards shall take into consideration the “use and value of public water supplies, propagation of fish and wildlife, recreational purposes . . . industrial, and other purposes . . . .” 33 U.S.C. § 1313 (c) (2) (A) (1988).

       Pursuant to General Statutes § 22a-426, the water quality standards were adopted by the department of environmental protection and pursuant to § 303 of the CWA were approved by the United States Environmental Protection Agency. Federal regulations require that state water quality standards consist of classifications designating uses for the various waters of the state, water quality criteria sufficient to protect those uses, and an antidegradation policy. See 40 C.F.R. § 131.6.

       On November 21,1990, after the record had been closed, Polymer Corporation, an owner of a portion of the water rights at the Cargill Falls Dam, intervened in the administrative proceedings.

       The designated uses for class B waters include: recreational use, fish and wild life habitat, agricultural and industrial supply and other legitimate uses including navigation.

       The adjudicator also concluded that recreational use, as that term is used in the state’s water quality standards, includes the aesthetic quality and out-of-stream recreational uses such as viewing a given water source.

       General Statutes (Rev. to 1987) § 4-183 (a) provided in relevant part: “A person who has exhausted all administrative remedies . . . and who is aggrieved by a final decision in a contested case is entitled to judicial review by way of appeal under this chapter . . . .” See footnote 12.

       General Statutes (Rev. to 1987) § 4-166 (2) provided: “ ‘Contested case’ means a proceeding, including but not restricted to rate-making, price fixing and licensing, in which the legal rights, duties or privileges of a party are required by statute to be determined by an agency after an opportunity for hearing or in which a hearing is in fact held, but does not include hearings referred to in section 4-168.”

       Because this proceeding before the commissioner commenced on or about April 8, 1988, it is governed by the provisions of the UAPA in effect prior to July 1, 1989. Public Acts 1988, No. 88-317, §§ 1, 23.

       The commissioner also argued that the trial court did not have subject matter jurisdiction because the plaintiff had not exhausted its administrative remedies because it failed to seek a declaratory ruling pursuant to General Statutes § 4-176.

       Although not addressed by the parties to this case, it is far from clear whether the “required by statute” language in General Statutes (Rev. to 1987) § 4-166 (2) does in fact refer to federal statutory law. Because the parties assume that reference should be made to both state and federal law in order to assess whether the commissioner was required by statute to determine the plaintiff’s request for § 401 certification, we assume, strictly for the purposes of this appeal, that the “required by statute” language incorporates federal statutory law.

       Section 1-23-310 (2) of the South Carolina Code of Laws Annotated (1986) defines “contested case” as “a proceeding ... in which the legal rights, duties, or privileges of a party are required by law to be determined by an agency after an opportunity for a hearing . . . .” Like Connecticut’s definition of a contested case, the South Carolina definition is derived from the 1961 Uniform Model Act. See Model State Administrative Procedure Act (1961) § 1 (2), 14 U.L.A. 137 (1980).

       The trial court also noted that “[t]he third requirement, however, is that a statute either require an opportunity for a hearing or in which a hearing is in fact held . . . The statute does not require both.”

       An examination of the definition oí a “contested case” in other jurisdictions that, like Connecticut, adopted the 1961 Model State Administrative Procedure Act’s version of contested case; see Model State Administrative Procedure Act (1961) § 1 (2), 14 U.L.A. 137 (1980), reveals that the phrase “or in which a hearing is in fact held,” as appended to the original definition of contested case in General Statutes § 4-166 (2), appears only in the Connecticut statute.
      The federal statute states that the provisions pertaining to formal adjudication apply “in every case of adjudication required by statute to be determined on the record after opportunity for an agency hearing . . . .” (Emphasis added.) 5 U.S.C. § 554 (a) (1988).

       Although the plaintiff cannot appeal to the Superior Court from the administrative decision denying its § 401 certification request under the UAPA, it is not without recourse. It may still petition the commissioner for a declaratory ruling pursuant to General Statutes § 4-176 as to whether the state’s water quality standards were properly applied to the plaintiff’s proposed project. Section 4-176 provides in relevant part: “(a) Any person may petition an agency, or an agency may on its own motion initiate a proceeding, for a declaratory ruling as to the validity of any regulation, or the applicability to specified circumstances of a provision of the general statutes, a regulation, or a final decision on a matter within the jurisdiction of the agency.”

       Since the decision in Herman v. Division of Special Revenue, 193 Conn. 379, 382, 477 A.2d 119 (1984), this court has interpreted General Statutes § 4-166 (2) to limit a “contested case” to a proceeding in which an agency has been statutorily required to determine a party’s legal interest in a hearing or after an opportunity for a hearing. See Lewis v. Gaming Policy Board, 224 Conn. 693, 701, 620 A.2d 780 (1993); New England Dairies, Inc. v. Commissioner of Agriculture, 221 Conn. 422, 429, 604 A.2d 810 (1992). If our interpretation had been incorrect, the legislature surely would have undertaken to amend the statute. The legislature has not done so, even though it has enacted other major revisions of the Uniform Administrative Procedure Act since that time. Such legislative inaction is indicative of legislative acquiescence in our interpretation of § 4-166 (2). Farmers & Mechanics Savings Bank v. Garofalo, 219 Conn. 810, 817, 595 A.2d 341 (1991); Scheyd v. Bezrucik, 205 Conn. 495, 506, 535 A.2d 793 (1987); Phelps Dodge Copper Products Co. v. Groppo, 204 Conn. 122, 134, 527 A.2d 672 (1987).


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Hotz Corporation v. Joseph F. Carabetta et al.
    (14668)
    Callahan, Borden, Berdon, Katz and Palmer, Js.
    Argued June 10
    decision released August 3, 1993

      Dominic J. Aprile, pro hac vice, with whom was Thomas E. Katon, for the appellants (defendants).

      Thomas G. Librizzi, with whom, on the brief, was Brian Preleski, for the appellee (plaintiff).
   Per Curiam.

The principal issue in this appeal is whether the defendants, Joseph F. Carabetta and Carabetta Enterprises, Inc. (Carabetta Enterprises), were afforded “the right to appear and be heard,” pursuant to General Statutes § 52-278d (a), before the trial court granted the plaintiff Hotz Corporation’s application for prejudgment remedy.

The following facts are relevant to the disposition of this appeal. In November, 1988, the plaintiff entered into a written subcontract with Carabetta Builders, Inc. (Carabetta Builders), to fabricate and supply structural steel, joists and metal decking for the construction of a high-rise condominium project in New Jersey. A dispute arose between the parties concerning the delivery of the steel and payment for it. Pursuant to the terms of the subcontract, the parties proceeded to arbitration. During arbitration, the plaintiff sought damages for breach of the subcontract by Carabetta Builders, claiming that it had failed to tender timely payments to the plaintiff. Carabetta Builders counterclaimed, seeking damages for the plaintiffs alleged failure to compute a lump sum contract price and to fabricate sufficient building materials as provided in the subcontract. On July 12, 1989, Joseph Carabetta allegedly personally guaranteed full payment to the plaintiff of all sums owed under the subcontract. The arbitrator subsequently awarded $2,470,701 in favor of the plaintiff. The trial court, Schaller, J., confirmed the award and denied Carabetta Builders’ application to vacate the award.

The plaintiff made a demand to Joseph Carabetta for payment, and when payment was not forthcoming, the plaintiff filed an application for prejudgment remedy, which is the subject of this appeal. In the unsigned complaint filed with the application, the plaintiff alleged that it had suspended the fabrication and shipment of steel under the subcontract when Carabetta Builders failed to pay past due amounts, that the arbitrator of disputes between the parties had awarded $2,470,701 in its favor, and that Joseph Carabetta had breached the guarantee agreement by refusing to pay the plaintiff any part of the arbitration award. In addition, the plaintiff alleged that Carabetta Enterprises was liable for the judgment against Carabetta Builders because the two corporate entities were “indistinguishable,” because Carabetta Enterprises “was directly involved in the day to day administration of the [subcontract,” and because Carabetta Enterprises had advised the plaintiff, in writing, that it could rely upon the financial strength and assets of Carabetta Enterprises to ensure payment of all sums owed under the subcontract.

On March 30, 1992, the trial court, DeMayo, J., held a hearing, at which the defendants filed a motion to stay pending arbitration of issues relating to Joseph Carabetta’s alleged personal guarantee and a memorandum in opposition to the plaintiff’s application for prejudgment remedy. On April 29, 1992, the trial court granted the plaintiff’s application for prejudgment remedy in the amount of $2,750,000. The trial court did not rule on the motion to stay pending arbitration. The defendants appealed from the trial court’s order granting the plaintiff’s application for prejudgment remedy to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). We reverse the order of the trial court.

Section 52-278d (a) mandates that “[t]he defendant shall have the right to appear and be heard at the hearing ... to [determine] whether . . . there is probable cause to sustain the validity of the plaintiff’s claim.” The defendants claim that the trial court violated this statutory mandate and deprived them of due process of law under the state and federal constitutions when it granted the plaintiff’s application for prejudgment remedy without first holding an evidentiary hearing. The plaintiff insists that the defendants received a hearing to establish probable cause on March 30, 1992, prior to the issuance of the prejudgment remedy. The plaintiff argues that the hearing satisfied § 52-278d (a) and state and federal due process protections because the defendants were represented by counsel, submitted factual affidavits and made legal argument.

At present, we need not determine whether a court session at which the parties are represented by counsel, introduce affidavits and make legal argument generally constitutes a “hearing” within the meaning of § 52-278d (a) and sufficiently safeguards against the deprivation of property without due process of law. Rather, in view of the particular facts of this case, we conclude that it was improper for the trial court to grant the plaintiffs application for prejudgment remedy without first ruling on the stay, and in the event that the stay was denied, without first holding an evidentiary hearing. The defendants had indicated to both the trial court and opposing counsel that they intended to introduce evidence in opposition to the application for prejudgment remedy, which raised a substantial issue concerning probable cause, should the trial court deny the defendants’ motion to stay pending arbitration.

The defendants filed their memorandum in opposition to the plaintiffs application for prejudgment remedy and their motion to stay pending arbitration on March 30, 1992, the date of the hearing. In both written documents and throughout argument before the trial court, counsel for the parties focused almost exclusively on whether the proceedings should be stayed pending arbitration of issues related to Joseph Carabetta’s alleged personal guarantee. Following the hearing, the plaintiff filed a supplemental memorandum in support of its application for prejudgment remedy. Again, the plaintiff refuted the defendants’ claim that the proceedings should be stayed pending arbitration. The defendants then filed a reply memorandum in which they indicated on at least three occasions that they intended to introduce evidence in opposition to the application for prejudgment remedy in the event that the trial court denied the motion to stay pending arbitration. Despite the fact that the hearing on March 30, 1992, focused almost exclusively on whether the proceedings should be stayed pending arbitration, and despite the defendants’ express reservation of the right to introduce evidence should the trial court deny the motion to stay, the trial court granted the application for prejudgment remedy without ruling on the motion to stay and without affording the defendants an opportunity to be heard on the issue of probable cause as required by § 52-278d (a). Accordingly, we conclude that in view of the particular facts of this case, the trial court improperly granted the plaintiff’s application for prejudgment remedy without first ruling on the stay and without giving the defendants the opportunity to present evidence in opposition to the plaintiff’s motion for prejudgment remedy.

The trial court’s order of prejudgment remedy is reversed and the case is remanded to the trial court for further proceedings consistent with this opinion.

       General Statutes § 52-278d (a) provides: “The defendant shall have the right to appear and be heard at the hearing. The hearing shall be limited to a determination of whether or not there is probable cause to sustain the validity of the plaintiffs claim. If the court, upon consideration of the facts before it, finds that the plaintiff has shown probable cause to sustain the validity of his claim, then the prejudgment remedy applied for shall be granted as requested or as modified by the court unless the prejudgment remedy or application for such prejudgment remedy was dismissed or withdrawn pursuant to the provisions of section 52-278j.”

       Carabetta Builders is a wholly owned subsidiary of Carabetta Enterprises. The defendants contend that Carabetta Enterprises and Carabetta Builders are distinct corporate entities and that it was improper for the trial court to find probable cause to order a prejudgment attachment against Joseph Carabetta and Carabetta Enterprises. In view of our decision to remand the case to the trial court for a probable cause hearing, we need not address this issue.

       Carabetta Builders appealed the confirmation of the award to the Appellate Court, which affirmed the decision of the trial court. Carabetta Builders, Inc. v. Hotz Corporation, 30 Conn. App. 157, 619 A.2d 13 (1993).

       General Statutes § 52-278c requires that “any person desiring to secure a prejudgment remedy shall attach his proposed unsigned writ, summons and complaint to the following documents:
      “(1) An application . . . for the prejudgment remedy requested;
      “(2) An affidavit . . . setting forth a statement of facts sufficient to show that there is probable cause that judgment will be rendered in the matter in favor of the plaintiff;
      “(3) A form of order that a hearing be held before the court or a judge thereof to determine whether or not the prejudgment remedy requested should be granted and that notice of such hearing be given to the defendant;
      “(4) A form of summons directed to a proper officer commanding him to serve upon the defendant at least four days prior to the date of the hearing . . . the application, a true arid attested copy of the writ, summons and complaint, such affidavit and the order and notice of hearing. ...”


text:
    Patricia Kane v. James D. Parry
    (14607)
    Peters, C. J., Borden, Berdon, Palmer and Santaniello, Js.
    Argued March 25
    decision released August 3, 1993

      Philip M. French, with whom was Patricia Kane, for the appellant (plaintiff).

      Sperry A. DeCew, for the appellee (defendant).
   Per Curiam.

After examining the record on appeal and after considering the briefs and arguments of the parties, we have concluded that the appeal in this case should be dismissed on the ground that certification was improvidently granted.

The appeal is dismissed.


author: Norcott, J.

text:
    Lynn Forsyth, Conservator (Estate of Gregory Forsyth) v. Audrey Rowe, Commissioner of Income Maintenance
    (14684)
    Peters, C. J., Callahan, Norcott, Katz and Palmer, Js.

      Argued May 4
    decision released August 3, 1993

      Judith A. Merrill, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Richard J. Lynch and Hugh Barber, assistant attorneys general, for the appellant (defendant).

      Christine M. Ellis, with whom was Jeffrey Trattner, for the appellee (plaintiff).

      Kathryn Calibey and Alexandra Davis filed a brief for the Connecticut Trial Lawyers Association as amicus curiae.
   Norcott, J.

The dispositive issue in this appeal is whether a trust established for the benefit of the plaintiffs ward, Gregory Forsyth, and funded with the proceeds from the settlement of a suit brought on his behalf to recover damages for injuries he sustained in an automobile accident is a “medicaid qualifying trust” under 42 U.S.C. § 1396a (k). The plaintiff conservator was denied medicaid benefits by the defendant, department of income maintenance (department), and appealed to the trial court, which sustained the appeal. The department appealed the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). We reverse the judgment of the trial court and remand the case for further proceedings.

The material facts are not in dispute. On August 26, 1988, Gregory Forsyth, who was twenty-four years old, sustained injuries as a result of a motor vehicle accident that left him unable to care for himself or to manage his affairs. The plaintiff, Lynn Forsyth, Gregory’s father, was appointed conservator of his son’s estate and person. The plaintiff subsequently instituted a suit against the State Farm Insurance Company (State Farm) on Gregory’s behalf to recover for injuries he received in the accident.

On August 13, 1990, the plaintiff, acting on behalf of Gregory, entered into a settlement agreement with State Farm whereby State Farm would pay $300,000, minus attorney’s fees, into the Gregory L. Forsyth Trust (trust) in return for the release of the plaintiff’s tort claim. At the recommendation of both the plaintiff and Gregory’s guardian ad litem, a trust agreement was executed on August 24, 1990, and State Farm, after approval of the settlement and trust agreements by the Probate Court, transferred approximately $195,000 into the trust.

The plaintiff subsequently applied to the state for medicaid benefits for Gregory. The department rejected the plaintiff’s application because Gregory had assets in excess of the department’s maximum asset limit. The department treated the funds in the trust as available to Gregory and included them in its calculation of his assets.

The plaintiff requested a fair hearing pursuant to General Statutes § 17-2a to contest the department’s denial of benefits. At the hearing, the plaintiff argued that the trust was not a medicaid qualifying trust because it had been established by him and not Gregory and, therefore, that the trust funds were not available to Gregory. Without the inclusion of these funds, the plaintiff argued, Gregory would have met the department’s asset limitations. The fair hearing officer concluded to the contrary that the acts of the plaintiff in establishing the trust were attributable to Gregory, that the trust was, therefore, a medicaid qualifying trust and that its funds were assets available to Gregory and includible in his assets for the purpose of determining medicaid eligibility. The fair hearing officer therefore concluded that no error had been made by the department and affirmed the denial of benefits to Gregory.

The plaintiff appealed the decision of the fair hearing officer to the trial court. The plaintiff claimed that the hearing officer had improperly found that the trust had been established by Gregory. The plaintiff maintained that he had created the trust and that it was therefore not a medicaid qualifying trust. The trial court agreed with the plaintiff that his acts in setting up the trust were not attributable to Gregory and, therefore, sustained the plaintiffs appeal.

In this court, the department contends that Gregory is not eligible for medicaid benefits because the trust assets constitute resources available to him in excess of the department’s resource standard. The department argues that Gregory is both the individual who established the trust and its beneficiary and that the trust, therefore, is a medicaid qualifying trust. The plaintiff, to the contrary, argues that the trust does not fit within the definition of a medicaid qualifying trust because it was established by him as Gregory’s conservator and not by Gregory himself. The plaintiff claims that the plain language of 42 U.S.C. § 1396a (k) requires such a result. We believe that the plaintiff’s reading of the statute is too narrow. We agree with the department and hold that for the purposes of § 1396a (k), Gregory is both the grantor and the beneficiary of the trust and that it is a medicaid qualifying trust. This reading is consistent with the history and purposes of both the medicaid program generally and § 1396a (k) specifically.

The federal medicaid program was enacted in 1965 as a cooperative federal-state endeavor designed to provide health care to needy individuals. 42 U.S.C. § 1396 et seq.; Atkins v. Rivera, 477 U.S. 154, 156, 106 S. Ct. 2456, 91 L. Ed. 2d 131 (1986). The program “ ‘provides] federal financial assistance to States that choose to reimburse certain costs of medical treatment for needy persons.’ Harris v. McRae, 448 U.S. 297, 301, 100 S. Ct. 2671, 65 L. Ed. 2d 784, reh. denied, 448 U.S. 917, 101 S. Ct. 39, 65 L. Ed. 2d 1180 (1980).” Clark v. Commissioner, 209 Conn. 390, 394, 551 A.2d 729 (1988). States are not required to participate in the program, but once a state chooses to adopt the program it must establish a plan conforming with the requirements of the federal statute. Id. “Connecticut has elected to participate in the program and has assigned to the department the task of administering the program. General Statutes § 17-134a et seq.” Matarazzo v. Rowe, 225 Conn. 314, 319, 623 A.2d 470 (1993).

“ ‘As originally enacted [the] Medicaid [Act] required participating States to provide medical assistance to “categorically needy” individuals who received cash payments under one of four welfare programs established elsewhere in the Act. . . . The categorically needy were persons whom Congress considered especially deserving of public assistance because of family circumstances, age, or disability. States, if they wished, were permitted to offer assistance also to the “medically needy”—persons lacking the ability to pay for medical expenses, but with incomes [or resources] too large to qualify for categorical assistance.’ Schweiker v. Gray Panthers, 453 U.S. 34, 37, 101 S. Ct. 2633, 69 L. Ed. 2d 460 (1981).” Id. Connecticut has chosen to cover the medically needy.

The Medicaid Act requires that participating states determine financial need by setting a resource standard that must be met before assistance can be provided. 42 U.S.C. § 1396a (a) (17). In Connecticut, the resource standard for a single medically needy applicant is $1600. Department of Income Maintenance, Uniform Policy Manual (1987) § 4005.10. A determination of eligibility under the resource standard may be based only on “such income and resources as are . . . available to the applicant or recipient . . . .” (Emphasis added.) 42 U.S.C. § 1396a (a) (17) (B). Assets held in irrevocable trusts are considered available only to the extent that they are distributed to a beneficiary. Zeoli v. Commissioner of Social Services, 179 Conn. 83, 94-95, 425 A.2d 553 (1979).

“[A] ‘medicaid qualifying trust’ is a trust, or similar legal device, established (other than by will) by an individual (or an individual’s spouse) under which the individual may be the beneficiary of all or part of the payments from the trust and the distribution of such payments is determined by one or more trustees who are permitted to exercise any discretion with respect to the distribution to the individual.” (Emphasis added.) 42 U.S.C. § 1396a (k) (2). The portion of principal and income from a medicaid qualifying trust considered “available” to an applicant “is the maximum amount of payments that may be permitted under the terms of the trust to be distributed to the grantor, assuming the full exercise of discretion by the trustee or trustees for the distribution of the maximum amount to the grantor.” 42 U.S.C. § 1396a (k) (1).

Neither party disputes that Gregory, who, through the plaintiff, applied for medicaid benefits as a medically needy individual, is a beneficiary of the trust. A determination of whether the trust is a medicaid qualifying trust, therefore, requires that we determine whether the trust was “established . . . by” Gregory as those words are used in § 1396a (k). We conclude that the trust was established by Gregory because it was funded with the proceeds from the settlement of his tort claim even though the settlement was actually consummated by the plaintiff acting on behalf of Gregory.

A trust is established by the person who provides the consideration for the trust even though in form it is created by someone else. Matter of Brooks, 844 F.2d 258, 263 (5th Cir. 1988); Lehman v. Commissioner of Internal Revenue, 109 F.2d 99, 100 (2d Cir. 1940); Stewart v. Merchants National Bank of Aurora, 3 Ill. App. 3d 337, 338, 278 N.E.2d 10 (1972); Guaranty Trust Co. v. New York Trust Co., 297 N.Y. 45, 50, 74 N.E.2d 232, 36 N.Y.S.2d 443 (1947). This is true even where an individual provides consideration for the funding of a trust by another. See Mahoney v. United States, 831 F.2d 641, 648-49 (6th Cir. 1987). The trust in this case was funded with the proceeds from the settlement of the personal injury claim brought by the plaintiff solely on Gregory’s behalf. Gregory provided the funds with which the trust was established when, through the plaintiff, his claim was settled in return for a payment to the trust. Gregory, therefore, is the individual who established the trust.

The plaintiff would have us read § 1396a (k) to include only trusts established directly by the individual beneficiary. It is clear, however, from the purpose and history behind § 1396a (k) that a medicaid qualifying trust may also be “established . . . by an individual” when that individual, acting through his conservator, provides the consideration for the trust.

“The objective of statutory construction is to give effect to the intended purpose of the legislature. State v. Delafose, 185 Conn. 517, 521, 441 A.2d 158 (1981). It is axiomatic that, where the statutory language is clear and unambiguous, construction of the statute by reference to its history and purpose is unnecessary. Winslow v. Lewis-Shepard, Inc., 216 Conn. 533, 538, 582 A.2d 1184 (1990). That axiom only applies in full force, however, [w]here . . . the language of a statute is . . . absolutely clear on its face and where no ambiguity is raised in applying the statute in a particular case. (Emphasis in original.) Anderson v. Ludgin, 175 Conn. 545, 554, 400 A.2d 712 (1978) .... Elections Review Committee of the Eighth Utilities District v. Freedom of Information Commission, [219 Conn. 685, 692, 595 A.2d 313 (1991)].” (Internal quotation marks omitted.) Rose v. Freedom of Information Commission, 221 Conn. 217, 225, 602 A.2d 1019 (1992). The plaintiffs narrow reading of the words “established . . . by an individual” discloses an ambiguity in the language of § 1396a (k) as applied to the facts of this case. It would be anomalous to construe the statute to allow a medicaid applicant to accomplish through a conservator or guardian acting on his behalf what the law prevents that applicant from doing on his own.

Our conclusion reflects the legislative concern that the medicaid program not be used as an estate planning tool. The medicaid program would be at fiscal risk if individuals were permitted to preserve assets for their heirs while receiving medicaid benefits from the state. Congress enacted the medicaid qualifying trust provision as an addition to the “provisions designed to assure that individuals receiving nursing home and other long-term care services under Medicaid are in fact poor and have not transferred assets that should be used to purchase the needed services before Medicaid benefits are made available.” H. Rep. No. 99-265, 99th Cong., 1st Sess. 71 (1985).

Section 1396a (k) was enacted as a response to the use of irrevocable inter vivos trusts to transfer one’s own assets and qualify for medicaid benefits. The availability requirement; 42 U.S.C. § 1396a (a) (17); had created a loophole by which individuals anticipating the need for expensive long-term medical care could impoverish themselves and qualify for medicaid assistance while preserving their resources for their heirs. Assets or income held in irrevocable trusts are not considered resources to a beneficiary or applicant because the asset is not “available” to the grantor. Zeoli v. Commissioner of Social Services, supra, 94-95. An individual could place assets in an irrevocable discretionary trust that paid him the income for life until long-term medical care became necessary. At that point the trustee could exercise his discretion to withhold payments to the beneficiary, thus, allowing the beneficiary to qualify for medicaid assistance while preserving assets for his heirs. Congress closed this loophole by deeming available to the beneficiary the maximum amount that could, at the trustee’s discretion, be distributed to the beneficiary from such a trust regardless of whether or not the funds were distributed. 42 U.S.C. § 1396a (k); H. Rep. No. 99-265, 99th Cong., 1st Sess. 71-72 (1985).

Our holding that a trust established by the person who furnishes the consideration is a medicaid qualifying trust for purposes of § 1396a (k) comports with the present Congressional mandate delineating the assets that are available to a potential medicaid recipient. To permit Gregory to collect medicaid benefits from the taxpayers when $195,000 of his assets are sheltered in a trust, all of which could potentially go to his heirs, would violate the spirit and intent of the medicaid program.

The determination of Gregory’s eligibility does not, however, end with our conclusion that the trust is a medicaid qualifying trust. The trust assets are considered available to Gregory up to the maximum amount of payments that the trustee could disburse if he exercised his full discretion under the terms of the trust whether the distributions are actually made. 42 U.S.C. § 1396a (k) (1). As a result of the trial court’s finding that the trust was not a medicaid qualifying trust, it never reached the determination by the fair hearing officer that the trustee was able to distribute all of the funds in the trust at the trustee’s discretion. In light of our finding that the trust is a medicaid qualifying trust, we remand the case for further proceedings in the trial court regarding the extent of the trustee’s discretion, and if the trustee’s discretion is limited, whether such limitation is valid under the circumstances.

The judgment is reversed and the case is remanded to the trial court for further proceedings consistent with this opinion.

In this opinion the other justices concurred.

       Contrary to what the term implies, a finding of a “medicaid qualifying trust” makes one ineligible for medicaid benefits. The term refers to a trust that is deemed to have been created in order to qualify for medicaid benefits and, for policy reasons, is considered an available asset to an applicant.

       Title 42 of the United States Code § 1396a (k) (1988) provides in relevant part: “treatment of potential payments from medicaid qualifying TRUSTS.
      “(1) In the case of a medicaid qualifying trust (described in paragraph [2]), the amounts from the trust deemed available to a grantor, for purposes of subsection (a) (17) of this section, is the maximum amount of payments that may be permitted under the terms of the trust to be distributed to the grantor, assuming the full exercise of discretion by the trustee or trustees for the distribution of the maximum amount to the grantor. For purposes of the previous sentence, the term ‘grantor’ means the individual referred to in paragraph (2).
      “(2) For purposes of this subsection, a ‘medicaid qualifying trust’ is a trust, or similar legal device, established (other than by will) by an individual (or an individual’s spouse) under which the individual may be the beneficiary of all or part of the payments from the trust and the distribution of such payments is determined by one or more trustees who are permitted to exercise any discretion with respect to the distribution to the individual. . . .”

       Throughout this opinion Lynn Forsyth will be referred to as the plaintiff when acting in his capacity as conservator. Gregory Forsyth will be referred to by name.

       State Farm was the insurer of the driver of the car with which Gregory had collided.

       The corpus and income of the trust are managed by a corporate trustee. Disbursements are made at the direction and discretion of a separate trust advisory committee consisting of three persons including the plaintiff. The agreement provides that the trust is intended to provide supplemental health care for Gregory.

       All the actions of the plaintiff were taken on behalf of Gregory.

       General Statutes § 17-2a provides in relevant part: “An aggrieved person authorized by law to request a fair hearing on a decision of the commissioner of income maintenance, or the conservator of any such person on his behalf, may make application for such hearing in writing over his signature to the commissioner and shall state in such application in simple language the reasons why he claims to be aggrieved. . . . The commissioner shall thereupon hold a fair hearing . . . . The aggrieved person shall appear personally at the hearing, unless his physical or mental condition precludes appearing in person, and may be represented by an attorney or other authorized representative. A stenographic or mechanical record shall be made of each hearing .... The commissioner of income maintenance and any person authorized by him to conduct any hearing under the provisions of this section shall have power to administer oaths and take testimony under oath relative to the matter of the hearing and may subpoena witnesses and require the production of records, papers and documents pertinent to such hearing. . . .”

       The plaintiff appealed the decision of the fair hearing officer pursuant to General Statutes § 4-183, which provides: “appeal to superior court. (a) A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision may appeal to the superior court as provided in this section. The filing of a petition for reconsideration is not a prerequisite to the filing of such an appeal.”

       General Statutes § 17-134a provides in relevant part: “The commissioner of income maintenance is authorized to take advantage of the medical assistance programs provided in Title XIX, entitled ‘Grants to States for Medical Assistance Programs,’ contained in the Social Security Amendments of 1965 and may administer the same in accordance with the requirements provided therein . . . .”
      General Statutes § 17-134d provides in relevant part: “The commissioner of income maintenance may make such regulations as are necessary to administer the medical assistance program. . . .”

       Section 1396a (k) of title 42 of the United States Code is implemented in Connecticut by § 4030.80 C of the Department of Income Maintenance Uniform Policy Manual (1987), which provides: “The funds in a trust are considered available to an individual if:
      “1. the trust was established by the individual or individual’s spouse other than by means of a will; and
      “2. the individual is the beneficiary of the trust; and
      “3. the trustee is able to distribute the funds to the individual at the trustee’s discretion. This is true even if:
      “a. the trust is irrevocable; and
      “b. the trustee does not exercise his or her discretion.” (Emphasis added.)

       The settlement agreement provided in relevant part: “I, Lynn Forsyth, Conservator of Gregory L. Forsyth, on behalf of said, Gregory L. Forsyth, his heirs and assigns, hereby release and forever discharge Martha Wells, as driver, and State Farm Insurance Company, as insurer, and all heirs, successors and assigns of said releasees from all claims, damages, actions, or causes of action on account of damage to property, bodily injury or consequential damages and present and future medical expenses resulting from an automobile collision which occurred on or about August 26, 1988, on Route ST-116, in North Salem, New York.

        “The consideration for this release is as follows:

      “No payments will be made to Gregory L. Forsyth or to Lynn Forsyth as his Conservator, but the Company will pay to the Gregory L. Forsyth Trust the sum of Three Hundred Thousand and 00/100 ($300,000.00) Dollars upon the delivery to it of this Agreement, properly executed.” (Emphasis added.)

       In support of his argument, the plaintiff urges that we adopt the reasoning of two cases decided in other jurisdictions holding that trusts created by a conservator and a probate court on behalf of incompetent beneficiaries were not medicaid qualifying trusts. Both cases are distinguishable on their facts and we decline to follow their reasoning.
      In Kegel v. State, 113 N.M. 646, 830 P.2d 563 (N.M. App. 1992), the trust created by the conservator was funded with the proceeds from settlement of a suit in which both the beneficiary, a minor child, and his parents each were named separately as plaintiffs each on their own behalf. The New Mexico Appellate Court found that there was nothing in the record indicating that the beneficiary was “entitled to any particular portion of the proceeds” from the settlement. Id., 567. The court then held that the trust had multiple grantors and that there was insufficient evidence in the record to determine that the beneficiary was the grantor of the trust. Id., 567-68. In the present case, Gregory, represented by the plaintiff, was the only plaintiff named in the suit that yielded the funds for the trust. Furthermore, there is no evidence in the record showing that anyone else might have had a claim to those funds. In Miller v. Ibarra, 746 F. Sup. 19 (D. Colo. 1990), four trusts created by the probate court for the benefit of four elderly incompetents were all funded by income streams that were insufficient to pay for the beneficiaries’ medical expenses, but were in excess of the eligibility requirements for Colorado medicaid benefits. Id., 20. Each of the trusts designated the Colorado department of social services as the residual beneficiary. Id., 32. The Colorado District Court stated that the Congressional purpose for prohibiting medicaid qualifying trusts is “to prevent wealthy individuals, otherwise ineligible for medicaid benefits, from making themselves eligible by creating irrevocable trusts in order to preserve assets for their heirs.” Id., 34. Noting that the designation of a public agency as residual beneficiary, rather than private heirs, removed any conflict with the purpose behind medicaid eligibility rules, the court held that the trusts were not medicaid qualifying trusts. Id. In the present case, the trust is sufficient to cover Gregory’s current expenses and once its funds are depleted he will become eligible for medicaid funds. More importantly, the trust is directly contrary to the above stated Congressional purpose in that Gregory’s heirs are the residual beneficiaries of the trust. See footnote 13.

       The trust agreement provides in relevant part: “Upon the death of GREGORY L. FORSYTH, any assets remaining in the Trust estate shall be distributed by the Trustee for the benefit of the surviving heirs of GREGORY L. FORSYTH

       The department also argued, both in the trial court and in this court, that the trust assets are available to Gregory because the trust is a nullity. The department contends that the plaintiff lacked the authority, the Probate Court lacked the power and Gregory lacked the capacity to create a trust with the settlement proceeds. The trial court never addressed these issues and, therefore, we decline to address them today.


author: Borden, J.

text:
    Doreen Morelli v. Manpower, Inc.
    (14624)
    Peters, C. J., Callahan, Borden, Katz and Palmer, Js.
    Argued April 27
    decision released August 3, 1993

      William F. Gallagher, with whom were Snow Gene Munford, and, on the brief, Cynthia C. Bott, for the appellant (plaintiff).

      Richard A. Roberts, with whom was Karen T. Gerber, for the appellee (defendant-third party plaintiff).

      Glory Martyn Lena, with whom was William H. Champlin III, for the appellee (third party defendant Sears, Roebuck and Company).
   Borden, J.

The sole issue of this appeal is whether the denial by the trial court of a motion to open a judgment of dismissal rendered pursuant to Practice Book § 251 is a final judgment for purposes of appeal. The plaintiff, Doreen Morelli, appeals, pursuant to our grant of certification, from the judgment of the Appellate Court dismissing her appeal from the denial by the trial court of her motion to open the § 251 dismissal. Morelli v. Manpower, Inc., 29 Conn. App. 132, 612 A.2d 818 (1992). We hold that the denial of a motion to open a § 251 dismissal is an appealable judgment and, accordingly, we reverse the judgment of the Appellate Court.

The Appellate Court opinion set forth the following facts. “The plaintiff brought this negligence action against the defendant on August 23, 1989. The plaintiff claimed that she was injured due to the negligence of a fellow employee while she was employed at Sears, Roebuck and Company. A motion to implead by the defendant, Manpower, Inc., was granted and a third party complaint against Sears, claiming breach of contract and indemnification, was filed. On April 17, 1991, the case appeared on the Superior Court dormancy calendar, with a notice that the action would be dismissed on June 28, 1991, if [the plaintiff] failed to close the pleadings or appear on that date. On June 10, 1991, the plaintiff filed a motion to exempt the action from the dormancy calendar. On June 28, 1991, the action was dismissed pursuant to Practice Book § 251 for the failure of the plaintiff to prosecute with reasonable diligence. Subsequently, the plaintiff filed a motion to open the judgment of dismissal, which was denied. This appeal is from that denial.” Morelli v. Manpower, Inc., supra, 133.

The Appellate Court dismissed the plaintiff’s appeal, in justifiable reliance on our decision in Governors Grove Condominium Assn., Inc. v. Hill Development Corporation, 187 Conn. 509, 446 A.2d 1082 (1982) (Governors Grove), in which we held that the denial of a motion to open a § 251 dismissal is not appealable. We now conclude, however, that for two reasons Governors Grove should be overruled and, therefore, that the denial of a motion to open a § 251 judgment of dismissal is an appealable judgment.

First, the precedential underpinnings of Governors Grove are no longer sound. In Governors Grove, we held that a motion to open a § 251 dismissal “is a motion to restore the case to the docket”; id., 511; and that “the decision on a motion to restore a case to the docket is not itself appealable.” Id., 512. For the proposition that the decision on a motion to restore a case to the docket is not appealable, Governors Grove relied principally on four cases: Beard’s Appeal, 64 Conn. 526, 535, 30 A. 775 (1894); Glazer v. Rosoff, 120 Conn. 120, 122, 179 A. 407 (1935); Miller v. Bridgeport Herald Corporation, 134 Conn. 198, 201, 56 A.2d 171 (1947); and Nickerson v. Gachim, 183 Conn. 413, 416, 439 A.2d 379 (1981).

It is true that, in Beard’s Appeal, supra, this court stated, in dictum, that there was no right of appeal from the denial of a motion to restore a case to the docket. Beard’s Appeal did not, however, explain the rationale for that statement. That rationale was not stated until the decision in Glazer.

In Glazer v. Rosoff, supra, 122, we stated that, although a judgment striking a case from the docket was a final, appealable judgment, a “motion to restore a case struck from the docket is like a motion to reopen a judgment; the decision upon it is not the basis of an appeal but it may postpone the limitation of the time within which an appeal from the judgment striking the case from the docket must be taken.” (Emphasis added.) The rationale, therefore, for considering the denial of a motion to restore a case to the docket as a nonappealable decision was that it was analogous to the denial of a motion to open a judgment, which apparently was nonappealable when Glazer was decided. Nickerson and Miller followed Glazer without examining its rationale, as did Governors Grove.

The rationale of Glazer, however, has not withstood the test of time. The denial of a motion to open a judgment is now appealable. Farmers & Mechanics Savings Bank v. Sullivan, 216 Conn. 341, 356, 579 A.2d 1054 (1990); Norwich v. Lebanon, 193 Conn. 342, 346 n.4, 477 A.2d 115 (1984); Gryskiewicz v. Morgan, 147 Conn. 260, 261, 159 A.2d 163 (1960); State v. Fahey, 146 Conn. 55, 59, 147 A.2d 476 (1958). Because the original analogy no longer holds true, the rationale based on that analogy must fall as well.

Indeed, we have not been fully consistent in applying the rationale of Glazer. On at least three occasions we have considered claims of error in the denial of motions to open § 251 dismissals, without explicitly questioning our jurisdiction to do so. See Grunschlag v. Ethel Walker School, Inc., 190 Conn. 679, 685, 462 A.2d 1 (1983); Jenkins v. Ellis, 169 Conn. 154, 160, 362 A.2d 831 (1975); Jaquith v. Revson, 159 Conn. 427, 431, 270 A.2d 559 (1970).

Second, logic requires that the denial of a motion to open a § 251 dismissal be appealable because: (1) a § 251 dismissal is appealable; and (2) the denial of such a motion is functionally the same as the denial of a motion to open a disciplinary judgment of nonsuit, which is appealable. As this court in Governors Grove, supra, 510 n.2, recognized, “a dismissal under § 251 is a final judgment for purposes of appeal.” Milgrim v. Deluca, 195 Conn. 191, 194, 487 A.2d 522 (1985). In terms of finality, we can perceive no difference between the judgment of dismissal itself and the denial of a motion to open that judgment. Because, pursuant to General Statutes § 52-592, the accidental failure of suit statute, both the dismissal and the denial of a motion to open the dismissal may be followed by reinstitution of the underlying claim regardless of whether a motion to open the judgment has been filed; see Lacasse v. Burns, 214 Conn. 464, 473, 572 A.2d 357 (1990); Gionfrido v. Wharf Realty, Inc., 193 Conn. 28, 34 n.6, 474 A.2d 787 (1984); there is nothing less “final” about the denial of a motion to open the judgment of dismissal than there is about the judgment of dismissal itself. Furthermore, consistent with our jurisprudence that a denial of a motion to open a judgment is appealable, we have implicitly held that a denial of a motion to open a judgment of nonsuit for failure to appear for a scheduled trial is an appealable judgment. See Gryskiewicz v. Morgan, supra. We can perceive no functional difference, in terms of appealability, between a denial of a motion to open a judgment of nonsuit in such a circumstance and a denial of a motion to open a judgment of dismissal pursuant to § 251. Both denials act as disciplinary actions that, in effect, affirm the trial court’s initial decision to preclude a plaintiff from pursuing his or her claim in the course of that proceeding.

The judgment of dismissal is reversed and the case is remanded to the Appellate Court for further proceedings according to law.

In this opinion the other justices concurred.

       Practice Book § 251 provides: “dismissal for lack of diligence
      “If a party -shall fail to prosecute an action with reasonable diligence, the court may, after hearing, on motion by any party to the action pursuant to Sec. 196, or on its own motion, render a judgment dismissing the action with costs. At least two weeks’ notice shall be required except in cases appearing on an assignment list for final adjudication. Judgment files shall not be drawn except where an appeal is taken or where any party so requests.
      “If a case is printed on a dormancy calendar pursuant to the dormancy program administered under the direction of the chief court administrator, and a motion for default for failure to plead is filed pursuant to Sec. 128, only those papers which close the pleadings by joining issues, or raise a special defense, may be filed by any party, unless the court otherwise orders.”

       We granted certification to appeal limited to the following issue: “Under what circumstances, if any, is the denial of a motion to open a judgment of dismissal under Practice Book § 251 an appealable judgment?” Morelli v. Manpower, Inc., 224 Conn. 908, 615 A.2d 1049 (1992).

       “The plaintiff claimed that she did not receive notice of the June 28, 1991 dismissal until November 19, 1991. The plaintiffs counsel claimed that he became aware of the judgment of dismissal during a discussion with the defendant’s counsel regarding a pending motion for summary judgment dated July 2, 1991, which was scheduled for hearing on the short calendar of November 25, 1991. The plaintiff filed a motion to open the judgment on November 21, 1991. A hearing on the plaintiff's motion to open was scheduled for December 2, 1991, but it was not acted upon on that date. A computer generated notice, dated December 18, 1991, referring to a judgment dated December 5, 1991, was issued by the Superior Court clerk’s office and stated that the plaintiff’s motion to open the judgment was granted. Thereafter, the motion to open appeared on the December 9, 1991 calendar and the trial court, Aronson, J., denied the motion to open. Notice of this decision was issued on December 9, 1991.
      “The denial was based on Serrano v. Behar, 15 Conn. App. 308, 544 A.2d 250 (1988), which held that a trial court has no jurisdiction to open a judgment beyond the four month period described in General Statutes § 52-212a and Practice Book § 326. See also Van Mecklenburg v. Pan American World Airways, Inc., 196 Conn. 517, 494 A.2d 549 (1985).
      “On January 10, 1992, the trial court issued a notice that stated that ‘[conflicting notices were sent on this motion. Motion to reopen denied 12/9/91 per Aronson, J. . . . Notice granting motion sent in error. This file is dead.’
      “Although the trial court denied the plaintiff’s motion to open because she failed to comply with Practice Book § 326, and thereby ousted the trial court of jurisdiction, this court will first determine whether the Appellate Court itself has jurisdiction over this appeal.” Morelli v. Manpower, Inc., 29 Conn. App. 132, 133-34 n.2, 612 A.2d 818 (1992).

       General Statutes § 52-592 provides: “accidental failure of suit; allowance of new action, (a) If any action, commenced within the time limited by law, has failed one or more times to be tried on its merits because of insufficient service or return of the writ due to unavoidable accident or the default or neglect of the officer to whom it was committed, or because the action has been dismissed for want of jurisdiction, or the action has been otherwise avoided or defeated by the death of a party or for any matter of form; or if, in any such action after a verdict for the plaintiff, the judgment has been set aside, or if a judgment of nonsuit has been rendered or a judgment for the plaintiff reversed, the plaintiff, or, if the plaintiff is dead and the action by law survives, his executor or administrator, may commence a new action, except as provided in subsection (b) of this section, for the same cause at any time within one year after the determination of the original action or after the reversal of the judgment.
      “(b) When any action has been brought against an executor or administrator or continued against an executor or administrator after the death of the defendant and has failed for any of the causes listed in subsection (a) of this section, the plaintiff, or his executor or administrator in case a cause of action survives, may commence a new action within six months after the determination of the original action.
      “(c) If an appeal is had from any such judgment to the supreme court or appellate court, the time the case is pending upon appeal shall be excluded in computing the time as above limited.
      “(d) The provisions of this section shall apply to any defendant who files a cross complaint in any action, and to any action between the same parties or the legal representatives of either of them for the same cause of action or subject of action brought to any court in this state, either before dismissal of the original action and its affirmance or within one year after the dismissal and affirmance, and to any action brought to the United States circuit or district court for the district of Connecticut which has been dismissed without trial upon its merits or because of lack of jurisdiction in such court. If such action is within the jurisdiction of any state court, the time for bringing the action to the state court shall commence from the date of dismissal in the United States court, or, if an appeal or writ of error has been taken from the dismissal, from the final determination of the appeal or writ of error.”


text:
    Norma Barker-Joseph v. Willie Jackson et al.

      William F. Gallagher and John H. Peck, Jr., in support of the petition.

      David J. Elliott and Ruth A. Kurien, in opposition.
    Decided May 17, 1993
   The plaintiffs petition for certification for appeal from the Appellate Court (AC 12083) is denied.


text:
    State of Connecticut v. Edward Dennis

      G. Douglas Nash, public defender, in support of the petition.

      Susann E. Gill, supervisory assistant state’s attorney, in opposition.
    Decided May 17, 1993
   The defendant’s petition for certification for appeal from the Appellate Court, 30 Conn. App. 416 (AC 11010 through 11024 and 11158), is denied.


text:
    David L. Copas v. Warden

      Christopher C. Sheehan, deputy assistant public defender, in support of the petition.

      Jacqueline J. Footman, assistant state’s attorney, in opposition.
    Decided May 17, 1993
   The petitioner David L. Copas’ petition for certification for appeal from the Appellate Court, 30 Conn. App. 677 (AC 11241), is denied.


text:
    Board of Education of the Town of Bozrah v. State Board of Education et al.
    The Supreme Court docket number is SC 14775.

      William R. Connon, in support of the petition.

      Saranne P. Murray, Gregory T. D’Auria and Nina F. Elgo, assistant attorney general, in opposition.
    Decided May 17, 1993
   The plaintiffs petition for certification for appeal from the Appellate Court, 30 Conn. App. 720 (AC 11277), is granted, limited to the following issue:

“Was the Appellate Court correct in construing General Statutes §§ 10-253 (d) and 10-76d (e) to require the Bozrah board of education to provide school accomodations?”


text:
    John R. Ivimey, Sr. v. Town of Watertown et al.

      John R. Ivimey, Sr., pro se, in support of the petition.

      Charles D. Stauffacher, in opposition.
    Decided May 17, 1993
   The plaintiffs petition for certification for appeal from the Appellate Court, 30 Conn. App. 742 (AC 11276), is denied.


text:
    Duncan W. Caney v. Olf Veldhuis et al.

      Joan J. Baird, in support of the petition.
    Decided May 17, 1993
   The defendant Lydia Veldhuis’ petition for certification for appeal from the Appellate Court, 30 Conn. App. 907 (AC 10703), is denied.


text:
    Anthony D’Addio v. Connecticut Insurance Guaranty Association Connecticut Insurance Guaranty Association v. Anthony D’Addio

      Philip F. von Kuhn, in support of the petition.

      Ira B. Grudberg and Alice S. Miskimin, in opposition.
    Decided May 17, 1993
   The Connecticut Insurance Guaranty Association’s petition for certification for appeal from the Appellate Court, 30 Conn. App. 729 (AC 11410), is denied.


text:
    Grace Community Church v. Town of Bethel et al.

      Jerome A. Mayer and John W. Mauck, pro hac vice, in support of the petition.

      Stephen C. Gallagher, in opposition.
    Decided May 17, 1993
   The plaintiff’s petition for certification for appeal from the Appellate Court, 30 Conn. App. 765 (AC 11312), is denied.


text:
    Ruth Ipbach v. Michael Ipbach

      Charlotte Croman, in support of the petition.

      Lisa Faccadio, in opposition.
    Decided May 26, 1993
   The defendant’s petition for certification for appeal from the Appellate Court, 30 Conn. App. 912 (AC 11265), is denied.


text:
    Barbara Jeane Blancato et al. v. Sebastian Randino

      Alexandra Davis and Mary Rebecca Knack, legal intern, in support of the petition.

      Karen P. Blado, in opposition.
    Decided May 26, 1993
   The plaintiffs’ petition for certification for appeal from the Appellate Court, 30 Conn. App. 810 (AC 11398), is granted, limited to the following issues:

“(1) Under the circumstances of this case, did the Appellate Court improperly apply the general verdict rule to bar consideration of the plaintiff’s claim regarding the jury charge on negligence per se?

“(2) If the answer to (1) is yes, was the jury charge on negligence per se harmful error?”


text:
    Richard Johnson et al. v. Salvatore Ruotolo et al.

      Frank P. Cannatelli, in support of the petition.
    Decided May 26, 1993
   The defendant’s petition for certification for appeal from the Appellate Court, 30 Conn. App. 913 (AC 11275), is denied.


text:
    Delores D. Stewart v. Leroy Stewart

      Delores D. Stewart, pro se, in support of the petition.
    Decided May 26, 1993
   The plaintiff’s petition for certification for appeal from the Appellate Court, 30 Conn. App. 920 (AC 10940), is denied.


text:
    The Ponds Homeowners Association, Inc. v. The Ponds, Inc., of Hotchkiss Grove et al.
    The Supreme Court docket number is SC 14783.

      Thomas E. Crosby, in support of the petition.

      Richard F. Connors, in opposition.
    Decided May 26, 1993
   The defendants’ petition for certification for appeal from the Appellate Court, 30 Conn. App. 919 (AC 11342), is granted, limited to the following issues:

“1. Was the Appellate Court correct in upholding the trial court’s determination that probable cause existed that the defendant The Ponds, Inc., fraudulently transferred, without consideration, certain condominium units to the individual codefendants (and Pomeroy Properties) where the only evidence in support were Real Estate Conveyance tax forms which were rebutted by evidence of a note and mortgage?

“2. Was the Appellate Court correct in upholding the trial court’s determination that probable cause existed that the individual defendants breached their May 11, 1989 agreement contrary to the statements of plaintiff’s counsel that he was not pursuing defendants under the counts of the complaint pertaining to that agreement and contrary to the evidence?”


text:
    State of Connecticut v. Craig Ulen

      Suzanne Zitser, assistant public defender, in support of the petition.

      Leon F. Dalbec, Jr., assistant state’s attorney, in opposition.
    Decided May 26, 1993
   The defendant’s petition for certification for appeal from the Appellate Court, 31 Conn. App. 20 (AC 10436), is denied.

Berdon, J., would grant certification.


text:
    First Constitution Bank v. Harbor Village Limited Partnership et al.
    The Supreme Court docket number is SC 14782.

      Jonathan S. Bowman, in support of the petition.

      Jonathan D. Elliott, in opposition.
    Decided May 26, 1993
   The petition of the defendant Fairfield Dock Company, Inc., for certification for appeal from the Appellate Court, 31 Conn. App. 15 (AC 11548), is granted, limited to the following issues:

“1. Does a different standard apply in determining whether or not defectively recorded mortgages, as opposed to defectively recorded mechanic’s liens, are valid, if both are properly executed?

“2. Was the Appellate Court correct in holding that a certificate of mechanic’s lien, properly executed, and properly indexed in the Greenwich Land Records, but whose property description became detached prior to recording, is invalid?”


text:
    Richard Rothstein, Trustee v. Joseph P. Trantino et al.
   The defendant Joseph P. Trantino’s petition for certification for appeal from the Appellate Court, (AC 11795), is granted, limited to the following issues:

“1. Where a defendant appeals from a judgment of strict foreclosure and the trial court terminates the automatic stay pending appeal, may the Appellate Court lawfully dismiss the appeal as moot if the law day set by the trial court passes prior to the Appellate Court’s deciding the appeal?

The Supreme Court docket number is SC 14790.

Jeremiah Donovan, in support of the petition.

Lloyd L. Langhammer, in opposition.

Decided May 26, 1993

“2. Are due process of law and the statutory right to appeal violated by a trial court’s ordering of a strict foreclosure, terminating the automatic stay pending appeal, and setting a law day prior to the time that the Appellate Court can decide the appeal, thus denying the defendant any opportunity for appellate review of the trial court’s judgment of strict foreclosure?”


text:
    Nedra Wynn v. Metropolitan Property and Casualty Insurance Company
    The Supreme Court docket number is SC 14788.

      David C. Pite, in support of the petition.

      Frederick L. Murolo, in opposition.
    Decided June 4, 1993
   The plaintiff’s petition for certification for appeal from the Appellate Court, 30 Conn. App. 803 (AC 11170), is granted, limited to the following issues:

“1. Did the Appellate Court properly conclude that the statute of limitations defense was a threshold issue which the trial court could decide without referring the same to the arbitrators in light of the positive assurance test for arbitrability and General Statutes § 52-410?

“2. Did the Appellate Court properly conclude that the statute of limitations had run prior to the filing of the plaintiff’s application to compel arbitration?”


text:
    Sakson Nursery, Inc. v. Planning and Zoning Board of Appeals of the Town of Greenwich et al.

      James D’Alton Murphy, in support of the petition.

      Eugene F. McLaughlin, assistant town attorney, in opposition.
    Decided June 4, 1993
   The plaintiff’s petition for certification for appeal from the Appellate Court, 30 Conn. App. 627 (AC 10526), is denied.


text:
    State of Connecticut v. Richard Weber

      Thomas Ullman, public defender, in support of the petition.

      Rita M. Shair, assistant state’s attorney, in opposition.
    Decided June 4, 1993
   The defendant’s petition for certification for appeal from the Appellate Court, 31 Conn. App. 58 (AC 11502), is denied.


text:
    Federal Deposit Insurance Corporation v. Retirement Management Group, Inc., et al.

      Patrick W. Boatman, in support of the petition.

      Donald E. Frechette, in opposition.
    Decided June 4, 1993
   The defendants’ petition for certification for appeal from the Appellate Court, 31 Conn. App. 80 (AC 10668), is denied.