author: Peters, C. J.

text:
    Mark Martone v. Brian Lensink, Commissioner of Mental Retardation
    (13328)
    Peters, C. J., Shea, Callahan, Covello and Hull, Js.
    Argued March 9
    decision released May 3, 1988

      Lawrence W. Berliner, for the appellant (plaintiff).

      James P. Welsh, assistant attorney general, with whom, on the brief, was Joseph I. Lieberman, attorney general, for the appellee (defendant).
   Peters, C. J.

This appeal concerns the legal consequences that General Statutes § 4-181 attaches to an agency’s ex parte submission of documents to an administrative hearing officer. The plaintiff, Mark Mar-tone, appeals from the Superior Court’s denial of his administrative appeal from the hearing officer’s decision affirming the proposal of the defendant, Brian Len-sink, commissioner of mental retardation, to transfer the plaintiff from one group home to another. We find error and remand for further proceedings.

The record discloses the following history: At the time the defendant decided upon the plaintiff’s transfer, the plaintiff, a mentally retarded adult, was residing at the Great Pond Group Home in Simsbury. Upon being notified of the defendant’s intention to transfer the plaintiff to the Copper Valley Group Home in Cheshire, his mother requested a formal administrative hearing pursuant to General Statutes § 19a-460 (b). At the hearing the plaintiff was represented by counsel and the defendant was represented by employees who were not attorneys.

Subsequent to the hearing, the hearing officer affirmed the department of mental retardation’s decision to transfer the plaintiff to the Copper Valley Group Home. She found that the Copper Valley Group Home, unlike the Great Pond Group Home, had a sprinkler system and met institutional fire code standards. Because the plaintiff’s compliance with emergency fire drills had been inconsistent, the hearing officer concluded that his transfer to the Copper Valley Home was in his best interest.

In her findings of fact and conclusions of law, the hearing officer noted that, after the conclusion of the hearing, the defendant had submitted four documents that had never been provided to the plaintiff. These she identified as: (1) “Fire Safety Issue,” (2) “Unit Description,” (3) “Day Program Description” and (4) “60 Day Plan of Care.” She further indicated: “These additional documents were not in any way considered by the undersigned in arriving at her decision. This decision is based only on evidence adduced at the hearing.” After issuance of the decision, the plaintiff, invoking General Statutes § 4-183, promptly requested that the hearing be reopened on a variety of grounds, including the defendant’s submission of additional documentation to the hearing officer without providing notice to the plaintiff or an opportunity to respond. The hearing officer denied the plaintiff’s request.

As authorized by General Statutes § 4-183, the plaintiff thereafter appealed the hearing officer’s decision to the Superior Court, claiming that the ex parte communication violated § 4-181 and rendered the hearing officer’s decision void. Relying on Henderson v. Department of Motor Vehicles, 4 Conn. App. 143, 493 A.2d 242 (1985), aff'd on other grounds, 202 Conn. 453, 521 A.2d 1040 (1987), the court held that the plaintiff had not sustained his burden of showing that the ex parte communication had prejudiced his rights. The administrative record forwarded to the court did not contain the additional documentation, and the plaintiff had not attempted to amplify the record. See General Statutes § 4-183 (f). Given this evidentiary lacuna, the court declared its inability to determine whether the ex parte communication had been prejudicial to the plaintiff.

On appeal, the plaintiff argues that the trial court erred in (1) allocating to him the burden of showing prejudice from the ex parte communication under § 4-181, (2) requiring him to produce copies of the documents for review, and (3) failing to find that the defendant’s actions irreparably prejudiced his right to due process of law and failing to void the hearing examiner’s decision. We agree with the plaintiff’s first two claims, and order a remand to determine the third.

The proper allocation of the burden of proof in the event of an unauthorized ex parte communication in violation of § 4-181 was decided by this court subsequent to the trial court proceedings in this case. Section 4-181 states in relevant part: “Unless required for the disposition of ex parte matters authorized by law, members or employees of an agency assigned to render a decision or to make findings of fact and conclusions of law in a contested case shall not communicate, directly or indirectly, in connection with any issue of fact, with any person or party, nor, in connection with any issue of law, with any party or his representative, except upon notice and opportunity for all parties to participate.” In Henderson v. Department of Motor Vehicles, 202 Conn. 453, 457-60, 521 A.2d 1040 (1987), we rejected the Appellate Court’s view that a plaintiff who alleges a violation of § 4-181 bears the burden of showing prejudice. We held instead that if the statute was to be given significant effect, once a violation of the statute has been proved by the party seeking relief, the burden shifts to the agency to prove that no prejudice has resulted from the prohibited ex parte communication. Id., 460. A necessary corollary of our decision was that the agency had the burden of presenting to the trial court the substance of the contested ex parte communication. Id., 459.

The defendant does not take issue with our holding in Henderson. His principal argument is that the plaintiff has failed to show the necessary predicate for its applicability, a violation of § 4-181. Alternatively, even if such a showing has been made, the defendant maintains that any presumption of prejudice is rebutted by the unchallenged finding of the hearing officer, which the trial court upheld, that the plaintiff’s best interest is served by his transfer to the Copper Valley Group Home. We find neither argument persuasive.

The defendant has made a two part claim in support of his argument that § 4-181 does not apply to the additional documentation submitted by the defendant to the hearing officer in this case. First, he maintains that the statute’s command to a hearing officer “not [to] communicate, directly or indirectly . . . with any. . . party” proscribes only communications initiated by the hearing officer. Second, if the statute were to include a communication received by a hearing officer, he maintains that the record presently before us does not demonstrate that she actually read the additional documents.

The proper scope of § 4-181’s prohibition against ex parte communication in contested administrative proceedings is a question of statutory construction, in which we must give effect to the apparent intent of the legislature as it is manifested in the language employed by its draftsmen. State v. Torres, 206 Conn. 346, 354, 538 A.2d 185 (1988); State v. Kozlowski, 199 Conn. 667, 673-74, 509 A.2d 20 (1986). We have frequently emphasized that the words of a statute “ ‘ “are to be given their commonly approved meaning, unless a contrary intent is clearly expressed.” ’ ” State v. Smith, 194 Conn. 213, 221, 479 A.2d 814 (1984); Harlow v. Planning & Zoning Commission, 194 Conn. 187, 193, 479 A.2d 808 (1984). In statutory construction, we endeavor, moreover, “to read the statute as a whole and so as to reconcile all parts as far as possible.” Grodis v. Burns, 190 Conn. 39, 44, 459 A.2d 994 (1983).

As commonly understood, “communicate” includes the interchange of thoughts and ideas. Webster, Third New International Dictionary (1971). To “communicate” can therefore encompass the receipt of information in addition to its active transmission. The legislature’s use of the phrase “directly or indirectly” to characterize the proscribed action suggests in addition that it intended a more rather than less inclusive definition of communication.

Moreover, as part of the Uniform Administrative Procedure Act (UAPA), § 4-181 must be read in the context of the rights to a hearing in contested cases and to judicial review of administrative decisions afforded by the act. General Statutes §§ 4-177, 4-183. “ 'The right to a hearing embraces not only the right to present evidence but also a reasonable opportunity to know the claims of the opposing party and to meet them.’ ” Leib v. Board of Examiners for Nursing, 177 Conn. 78, 82, 411 A.2d 42 (1979), quoting Morgan v. United States, 304 U.S. 1, 18, 58 S. Ct. 773, 82 L. Ed. 1129 (1937). The right to judicial review is impeded if the reasons for an agency’s actions are not accessible through a record. See PATCO v. FLRA, 685 F.2d 547, 564-65 n.32 (D.C. Cir. 1982); United States Lines, Inc. v. FMC, 584 F.2d 519, 541-42 (D.C. Cir. 1978). The prohibition of ex parte communications in § 4-181 effectuates these rights. As the commissioner’s comments state with regard to the identical provision in the Model State Administrative Procedure Act, “[t]his section is intended to preclude litigious facts reaching the deciding minds without getting into the record. Also precluded is ex parte discussion of the law with the party or his representative.” State Administrative Procedure, §§ 13,14 U.L.A. 426 (Master Ed. 1980). The purposes of § 4-181 are to prevent one party from exerting improper influence on the decisionmaker; cf. Seebach v. Public Service Commission, 97 Wis. 2d 712, 721, 295 N.W.2d 753 (Wis. App. 1980); and to ensure that the reasons underlying his or her decision are on the record. Cf. United States Lines, Inc. v. FMC, supra. We would undermine these acknowledged statutory purposes if we were to accept the defendant’s narrow interpretation of the phrase “shall not communicate” so as to permit a hearing officer to receive information without the knowledge of the opposing party. Notably, the defendant has cited no authority whatsoever in support of his construction of § 4-181.

The defendant’s alternate argument raises a question of fact: that the record fails to establish a violation of § 4-181 because it does not demonstrate the hearing officer’s receipt of the information contained in the documents at issue. Even if § 4-181 proscribes the receipt of an ex parte communication, the defendant maintains that the record discloses no evidence that the hearing officer in this case actually examined the documents that were improperly provided to her. In the defendant’s view, the hearing officer’s statement that the additional submission was “not considered” in her decision indicates that the hearing officer had not read the documents.

We view the record on this question, however, as sufficient to show at least a prima facie violation of § 4-181. The hearing officer’s statement that she did not “consider” the documents, coupled with her express reference to each of the documents by its subject matter, indicates that, although she received the documents and may have read them, she excluded the information contained therein from her decision. To require a person contesting an ex parte communication to show more than the receipt of an unauthorized submission would be inconsistent with our reasoning in Henderson. As we there noted, “an adjudicating official may not ordinarily be subjected to inquiry concerning the mental process used in reaching a decision.” Henderson v. Department of Motor Vehicles, supra, 459. It follows that the plaintiff here would have been precluded from ascertaining whether the hearing officer had read the defendant’s submission. To rebut the inference that an ex parte submission has caused prejudice, the other party is, however, free to present evidence from the hearing officer that he or she did not in fact read the documents prior to coming to a decision. As the record presently stands, the plaintiff has adduced sufficient evidence of a violation of § 4-181 to require the defendant to make an evidentiary showing to rebut an inference of prejudice, by demonstrating either that the hearing officer never read the documents that she received or that their contents did not adversely affect the disposition of the plaintiff’s case. If indeed the hearing officer did read the documents, her statement that they did not enter into her consideration of the merits of the case, cannot, of course, be dispositive. Connecticut Natural Gas Corporation v. PUCA, 183 Conn. 128, 140, 439 A.2d 282 (1981).

Despite the inadequacy of the present record with regard to rebuttal of prejudice, the defendant urges us not to remand this case for further evidentiary proceedings. In the defendant’s view, any presumption of prejudice is conclusively rebutted by the plaintiff’s failure to challenge, on this appeal, the sufficiency of the evidence supporting the administrative determination that his best interests will be served by his transfer. See footnote 5, supra. The defendant’s claim is, however, unpersuasive, because it erroneously equates substantive correctness and procedural fairness, two distinct aspirations of the UAPA.

In determining on the merits whether a hearing officer’s decision is “clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record”; General Statutes § 4-183 (g) (5); the reviewing court must apply a standard similar to that applied in judicial review of a jury verdict. Persico v. Maher, 191 Conn. 384, 409, 465 A.2d 308 (1983). Under this restrictive standard, the court must consider whether the evidence affords “ ‘ “a substantial basis of fact from which the fact in issue can reasonably be inferred. . . . [I]t must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury.” ’ ” Id.

Section 4-183 (g) (4) also provides, however, that an agency’s decision may be reversed or modified “if substantial rights of the appellant have been prejudiced because the administrative [decision is]. . . affected by other error of law . . . . ” In the context of ex parte communications, the appropriate inquiry regarding prejudice to the appellant’s right must focus on whether “the agency’s decisionmaking process was irrevocably tainted so as to make the ultimate judgment of the agency unfair.” PATCO v. FLRA, supra, 564-65; see Seebach v. Public Service Commission, supra, 721. Such a determination necessarily involves consideration of the role the ex parte communication played in the agency’s decision. Id. As the documents at issue in this case are not part of the record, we cannot conclude that the defendant would have been able to rebut the presumption of prejudice created by the agency’s violation of § 4-183.

Just as we reject the defendant’s argument that we must conclude that there has been no error in this case, so we reject the plaintiff’s argument that the present record requires us to sustain his administrative appeal and to declare the decision of the hearing officer ordering his transfer to be void. As yet, there has been no proper factual finding about whether the plaintiff was prejudiced by the defendant’s ex parte submission. In the trial court, the factual issue of prejudice was adjudicated improperly because of the court’s legal error in allocating the burden of proof on that issue to the plaintiff. In consequence, the trial court erroneously imposed on the plaintiff the burden of producing the documents in question.

To correct the impact of the trial court’s erroneous rulings, a further hearing must be held to permit an evidentiary inquiry, within the proper legal guidelines established by our opinion in Henderson v. Department of Motor Vehicles, 202 Conn. 453, 521 A.2d 1040 (1987), into whether the defendant’s ex parte submission was in fact prejudicial. At that time the defendant may submit whatever evidence may be needed to show that his agency’s departure from § 4-183 was a procedural irregularity that did not prejudice the plaintiff. General Statutes § 4-183 (f). If the trial court nonetheless determines that the plaintiff’s rights were in fact irreparably prejudiced by the hearing officer’s decision, the plaintiff’s appeal from that decision must then be sustained.

There is error, the judgment is set aside and the case is remanded to the trial court for further proceedings in accordance with this opinion.

In this opinion the other justices concurred.

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

       General Statutes § 19a-460 (b) provides: “The parent, guardian, conservator or other legal representative of any mentally retarded person who resides at any institution or facility operated by the department of mental retardation, or any mentally retarded person himself, who is eighteen years of age or older and who resides at any such institution or facility, may make a request, in writing, to the commissioner of mental retardation for a hearing on any transfer of such person from one institution or facility to another for any reason other than medical. Such hearing shall be conducted in accordance with the provisions of sections 4-177 to 4-184, inclusive.”

       General Statutes § 4-183 provides in relevant part: “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 in a contested case is entitled to judicial review by way of appeal under this chapter, provided, in case of conflict between this chapter and federal statutes or regulations relating to limitations of periods of time, procedures for filing appeals or jurisdiction or venue of any court or tribunal, such federal provisions shall prevail. A preliminary, procedural or intermediate agency action or ruling is immediately reviewable if review of the final agency decision would not provide an adequate remedy.
      * * *
      “(d) Within thirty days after the service of the petition, or within such further time as may be allowed by the court, the agency shall transmit to the reviewing court the original or a certified copy of the entire record of the proceeding appealed from, which shall include the agency’s findings of fact and conclusions of law, separately stated. By stipulation of all parties to such appeal proceedings, the record may be shortened. A party unreasonably refusing to stipulate to limit the record may be taxed by the court for the additional costs. The court may require or permit subsequent corrections or additions to the record.
      “(e) If, before the date set for hearing, application is made to the court for leave to present additional evidence, and it is shown to the satisfaction of the court that the additional evidence is material and that there were good reasons for failure to present it in the proceeding before the agency, the court may order that the additional evidence be taken before the agency upon conditions determined by the court. The agency may modify its findings and decision by reason of the additional evidence and shall file that evidence and any modifications, new findings, or decisions with the reviewing court.

        “(f) The appeal shall be conducted by the court without a jury and shall be confined to the record. In cases of alleged irregularities in procedure before the agency, not shown in the record, proof thereon may be taken in the court. The court, upon request, shall hear oral argument and receive written briefs.
      “(g) The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) In violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error of law; (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. . . .”

       In the Superior Court, the plaintiff also claimed that the defendant had failed to sustain his burden of showing by clear and convincing evidence that the transfer was in the best interest of the plaintiff. That issue was fully examined and resolved against the plaintiff by the court, Jackaway, J., and has not been pursued further in this court.

       Under General Statutes § 4-177 (b), parties in a contested case must have reasonable notice of the time and place of the hearing as well as of the matters to be addressed therein. All parties are to be afforded an opportunity “to respond and present evidence and argument on all issues involved.” General Statutes § 4-177 (c). In addition, “[findings of fact shall be based exclusively on the evidence and on matters officially noticed." General Statutes § 4-177 (g).

       A conclusion that the hearing officer’s decision was amply supported by the evidence may be relevant to this determination, but it cannot be the sole dispositive factor when the substance of the ex parte communciations is not in the record. See, e.g., Seebach v. Public Service Commission, 97 Wis. 2d 712, 721-23, 295 N.W.2d 753 (Wis. App. 1980); see also Connecticut Natural Gas Corporation v. PUCA, 183 Conn. 128, 140 n.10, 439 A.2d 282 (1981).

       In order to avoid the protracted litigation that this case represents, the defendant might consider the adoption of administrative guidelines instructing its personnel not to make ex parte submissions to hearing officers.


source: Caselaw Access Project

author: Hull, J.

license: Public Domain

text:
    West Haven Sound Development Corporation v. City of West Haven
    (13115)
    Peters, C. J., Shea, Callahan, Glass and Hull, Js.
    Argued February 3
    decision released May 3, 1988

      Charles A. Sherwood, with whom, on the brief, was Joseph R. Mirrione, for the appellant-appellee (plaintiff).

      Gary P. Sklaver, with whom were Irving Perlmutter and Louis Smith Votto, corporation counsel, for the appellee-appellant (defendant).
   Hull, J.

This is a breach of contract action. The parties to this appeal have been involved in litigation for more than thirteen years. This is the fourth time this case has been before this court, and we have heretofore clearly and adequately set forth the facts leading to the breach of contract. West Haven v. Impact, 174 Conn. 160, 384 A.2d 353 (1978); New Haven Savings Bank v. West Haven Sound Development, 190 Conn. 60, 459 A.2d 999 (1983); West Haven Sound Development Corporation v. West Haven, 201 Conn. 305, 514 A.2d 734 (1986). Therefore, a brief summary of the facts will suffice to establish the context of this appeal.

Early in 1973, the plaintiff, West Haven Sound Development Corporation, and the West Haven Development Agency entered into a contract under which the defendant, city of West Haven, conveyed a parcel of land to the plaintiff to be used pursuant to the defendant’s urban renewal plan for the Savin Rock area of West Haven. The plan, which was incorporated by reference into the contract, provided for development of commercial, recreational and apartment uses on a substantial portion of the land in Savin Rock, The contract expressly provided that no modification of the plan affecting the rights of the redevelopers could be made without their consent. Pursuant to the contract, the plaintiff constructed a restaurant, called Phyllis’, Inc., on its land and opened for business in December, 1973.

On October 17, 1974, the voters of West Haven passed a referendum requiring the defendant to annul its redevelopment plan and convert the remaining undeveloped land into a public park. The defendant sought the consent of the redevelopers to this purported modification of the plan; the plaintiff and several other redevelopers withheld their consent. The defendant then sought a declaratory judgment to determine whether the referendum was, in fact, a modification of the plan. The trial court held it was not and, on appeal to this court, the trial court’s decision was reversed. See West Haven v. Impact, supra.

In May, 1977, Phyllis’, Inc., closed. The plaintiff brought an action alleging that the defendant had breached its contract with the plaintiff by modifying the plan and that the breach had caused its business to fail. At trial, the jury returned a verdict for the plaintiff in the amount of $3.1 million. The defendant appealed to this court. We found no error on the issue of liability but remanded the case to the trial court for a new trial limited to the issue of damages. West Haven Sound Development Corporation v. West Haven, supra. On remand, the jury awarded damages of $300,000, to which the court added $282,230.14 in interest calculated from the date of the breach to the date of the verdict.

The plaintiff appeals on the following grounds: (1) the trial court permitted the issue of causation to be relitigated; (2) the court’s interrogatories confused the jury as to the concept of foreseeability of damages; (3) the plaintiff was prejudiced by the interrogatories; (4) mitigation expenses were erroneously subjected to the test of foreseeability; and (5) the trial court erred in its instructions to the jury as to the method of evaluating the plaintiff’s business following the defendant’s breach. The defendant cross appeals on the ground that interest should not have been awarded, but if correctly awarded, it should not have been computed from October 17, 1974, the date of the breach, but from January 3,1978, the date of our decision in West Haven v. Impact, supra. We find no error on either the appeal or the cross appeal.

The Plaintiff’s Appeal

causation

Prior to commencement of the trial on damages, the plaintiff filed a motion in limine asking the court to limit the trial to a determination of the amount and foreseeability of damages, and to preclude the issue of causation of the plaintiff’s business failure. The trial court denied the motion, ******9explaining that this court had mandated a “redetermination of damages within the ambit of the applicable rules of law governing breach of contract”; and that “the scope of this trial will embrace a redetermination of the issues of damages which are causally related to this breach, which has already been established.” The court added that the defendant’s liability was not at issue at the trial.

The plaintiff argues: that in allowing causation to be relitigated on remand, the trial court went beyond the scope of our mandate; that this court affirmed the jury’s finding of causation and this affirmation became the law of the case; that causation was res judicata; and that General Statutes § 52-266 limits the issues on retrial to those on which error has been found.

“ ‘In carrying out a mandate of this court, the trial court is limited to the specific direction of the mandate as interpreted in light of the opinion. [Emphasis added.] Mazzotta v. Bornstein, 105 Conn. 242, 243, 135 A. 38 [1926]. This is the guiding principle that the trial court must observe. State Bar Assn. v. Connecticut Bank & Trust Co., 146 Conn. 556, 561, 153 A.2d 453 [1959], Compliance means that the direction is not deviated from. The trial court cannot adjudicate rights and duties not within the scope of the remand. Humphrey v. Gerard, 84 Conn. 216, 221-22, 79 A. 57 [1911].’ Nowell v. Nowell, 163 Conn. 116, 121, 302 A.2d 260 (1972); State v. Avcollie, 188 Conn. 626, 643, 453 A.2d 418 (1982). ‘It is the duty of the trial court on remand to comply strictly with the mandate of the appellate court according to its true intent and meaning. No judgment other than that directed or permitted by the reviewing court may be rendered, even though it may be one that the appellate court might have directed. The trial court should examine the mandate and the opinion of the reviewing court and proceed in conformity with the views expressed therein. ’ (Emphasis added.) Nowell v. Nowell, supra.” Wendland v. Ridgefield Construction Services, Inc., 190 Conn. 791, 794-95, 462 A.2d 1043 (1983).

The trial court, in denying the plaintiffs motion in limine, initially expressed some uncertainty as to what this court intended the scope of the proceedings on remand to be, but acknowledged that it was bound by the principles enunciated in Wendland v. Ridgefield Construction Services, Inc., supra. It ultimately construed our opinion in West Haven Sound Development Corporation v. West Haven, supra, to permit consideration of causation as it pertains to determining damages related to the breach. The trial court was correct.

At the first trial of this case, the jury returned a general verdict for the plaintiff. When a jury returns a general verdict for the plaintiff, we must presume that it found all issues in favor of the plaintiff. Tetro v. Stratford, 189 Conn. 601, 610, 458 A.2d 5 (1983). Accordingly, in our analysis of the damages component of the verdict, we presumed that the jury had found that the damages awarded were caused by the breach. We also concluded that the jury could reasonably have found that damages were caused by the breach. The plaintiff appears to rely on these opening statements of our analysis to foreclose reconsideration on remand of the issue of causation of damages. Our analysis, however, did not end there. We proceeded to assess the sufficiency of the evidence to prove the specific damages claimed by the plaintiff to have been caused by the breach. We concluded that the verdict was excessive; that there was insufficient evidence from which the jury could have evaluated and awarded damages for diminution in the value of the plaintiffs business caused by the breach; that there might have been some overlapping or duplication of certain elements of damages; and that, while the plaintiff would have been entitled to recover the cost of its reasonable efforts to mitigate its damages, there was no way to ascertain the extent to which the jury considered these expenses in its award. West Haven Sound Development Corporation v. West Haven, supra, 316-32.

We attributed these results to the absence of appropriate instructions to the jury as to how they were to compute damages if they found a breach. Id., 327. We noted that the jury had been “left to calculate damages in their largely unbridled discretion,” without having had the elements of damages identified, delineated or explained. Id., 333. Further, recognizing the complexity of this case, we stated that, on remand, the trial court should afford the jury detailed guidance on the legal doctrines underlying the calculation of damages. Id. We made it clear that, throughout our opinion, we had articulated only standards for identifying and valuing the damages claimed by the plaintiff and emphasized that their compensability was contingent upon their foreseeability. Id., 332-33. We also remarked that, on remand, the plaintiff was not bound by our categorization of the elements of damages or the values we assigned to each grouping, but that “the plaintiff is free to value and prove its damages, and under whatever theory as it wishes. In short, the plaintiff on remand is not collaterally estopped by the dollar amounts or theories of recovery discussed in this opinion.” Id., 322 n.4. To summarize, we found error in the resolution of virtually every issue pertaining to the award of damages. Accordingly, our mandate directed a complete redetermination of damages encompassing identification of those damages caused by the breach, their valuation and foreseeability.

The trial court, therefore, correctly permitted the trial on remand to embrace the issue of what damages had been caused by the breach. The fact of the breach, itself, was not before the jury; that issue had been resolved at the first trial and the defendant’s liability had been established and upheld by this court. The trial court, in its opening remarks, and repeatedly in its instructions to the jury, cautioned the jury that the defendant had already been found to have breached its contract with the plaintiff and that the jury was to consider damages only. Determination of damages necessarily contemplates a finding that the breach was the cause of the damages claimed. “It is hornbook law that to be entitled to damages in contract a plaintiff must establish a causal relation between the breach and the damages flowing from that breach. Such causal relation must be more than surmise or conjecture, inasmuch as a trier is concerned not with possibilities but with probabilities. Where . . . the damages claimed are remote from the breach complained of and the causal connection is wholly conjectural, there can be no recovery.” Calig v. Schrank, 179 Conn. 283, 286, 426 A.2d 274 (1976); see also J. Calamari & J. Perillo, Contracts (1987) § 14.4, pp. 591-92; D. Dobbs, Remedies (1973) § 12.3, pp. 798-803; 3 Restatement (Second), Contracts §§ 346, 347. Therefore, the retrial on damages comported with our mandate.

Furthermore, the jury-was given interrogatories in which they were asked to state whether each element of damages claimed by the plaintiff had been caused by the defendant’s breach. In all cases, the jury answered in the affirmative. Accordingly, even if the court had erred in allowing causation to be relitigated, this error resulted in no harm to the plaintiff in whose favor each interrogatory regarding causation was answered.

INTERROGATORIES

The plaintiff’s second, third and fourth claims are addressed to alleged errors in the jury interrogatories and, thus, may be treated together. The plaintiff argues that the interrogatories propounded by the court to the jury misinformed the jury about the concept of foreseeability of damages and resulted in answers that were internally inconsistent. The plaintiff contends further that the interrogatories improperly guided the jury to its verdict, rather than explaining or limiting the verdict, as provided by Practice Book § 312. The plaintiff also asserts that expenses incurred to mitigate damages need not be foreseeable and that the court’s interrogatory on this issue erroneously apprised the jury that such damages must be foreseeable. The defendant counters that the plaintiff was afforded ample opportunity to review and object to the interrogatories but, because the plaintiff failed to object and take an exception, his claims of error are not reviewable. We agree with the defendant.

At the close of the evidence and before the court charged the jury, counsel and the court discussed the content and scope of the interrogatories to be presented to the jury. The court apprised counsel that it intended to formulate the interrogatories to inquire whether the breach caused the damages and whether they were reasonably foreseeable. Counsel for the plaintiff expressed some concern that foreseeability should be more specifically enunciated. The court declined to recite the principles of foreseeability of damages in the interrogatories but assured counsel that it would instruct the jury as to the concept of foreseeability. Following a recess, the court presented counsel with its interrogatories. The plaintiffs counsel voiced his prior reservation regarding the concept of foreseeability as it appeared in the interrogatories. The court again assured him that the jury instructions would articulate the law of foreseeability of damages and that the interrogatories would have to be answered in accordance with the court’s instructions on the law. Counsel did not object to the interrogatories. The court propounded nine interrogatories to the jury, eight of which were addressed to the elements of damages claimed by the plaintiff. The interrogatories asked the jury to determine whether the plaintiff had proved by a fair preponderance of the evidence that the damages had been caused by the breach of contract, and if the jury so found, whether the damages were foreseeable. The court’s charge to the jury on foreseeability was virtally identical to the charge requested by the plaintiff. Following the jury charge, during which the interrogatories were read to the jury, the trial court invited exceptions from the parties. Again, the plaintiff allowed an opportunity for preserving this alleged claim of error to pass. We may presume from the plaintiffs repeated failure to object to the interrogatories that it assented to their content and submission to the jury. Shelby Mutual Ins. Co. v. Williams, 152 Conn. 178, 183, 205 A.2d 372 (1964); Freedman v. New York, N.H. & H. R. Co., 81 Conn. 601, 611, 71 A. 901 (1908). Accordingly, we shall not review this claim. Practice Book § 4185.

JURY CHARGE ON LOSS OF VALUE OF BUSINESS

The plaintiff contends that the trial court’s charge to the jury on diminution in the value of the plaintiff’s business occasioned by the defendant’s breach unduly limited the time frame to be considered by the jury. Specifically, the plaintiff takes issue with the court’s instruction that the jury was limited to considering the value of the business immediately before and immediately after the breach so that the jury was foreclosed from considering damages that arose subsequent to the breach.

“ ‘The general rule in breach of contract cases is that the award of damages is designed to place the injured party, so far as can be done by money, in the same position as he would have been in had the contract been performed.’ ” West Haven Sound Development Corporation v. West Haven, supra, 319; Gordon v. Indusco Management Corporation, 164 Conn. 262, 272, 320 A.2d 811 (1973). Damages for breach of contract are to be determined as of the time of the occurrence of the breach. Kevin Roche-John Dinkeloo & Associates v. New Haven, 205 Conn. 741, 749, 535 A.2d 1287 (1988); Gordon v. Indusco Management Corporation, supra, 264. In this case, the diminution in the value of the plaintiffs business would be measured by the difference between the value of the business had the contract been performed and its value as a result of the breach. West Haven Sound Development Corporation v. West Haven, supra, 323-29.

A court’s charge to the jury is tested by whether it fairly presents the case to the jury so that injustice is not done to either party under the established rules of law. Holbrook v. Casazza, 204 Conn. 336, 351-52, 528 A.2d 774 (1987), cert. denied, 484 U.S. 1006, 108 S. Ct. 699, 98 L. Ed. 2d 651 (1988); Borsoi v. Sparico, 141 Conn. 366, 371, 106 A.2d 170 (1954). Here, the trial court identified for the jury the three categories of damages claimed by the plaintiff: (1) damages for loss of business; (2) damages for a deficiency judgment rendered against the plaintiff in an action to foreclose a mortgage on the premises of Phyllis’, Inc.; and (3) damages for expenses incurred to mitigate the loss occasioned by the breach. With respect to the damages for loss of business, the court charged the jury as follows: “In determining the value of the plaintiff’s loss of business, you are to consider the evidence presented to you as to the value of the business, assuming that redevelopment went forward as originally anticipated, subtracting therefrom any value that remained as a result of the breach. In short, for this element of the plaintiff’s damages, the plaintiff must first show the value of its business, assuming there had been no breach and the value of the business as a result of the breach. So you’ve got the before and after, into which you will make an inquiry.

“In determining what damages, if any, the plaintiff suffered because of the breach of contract on October 17, 1974, you must determine to what extent, if any, the plaintiffs business decreased as a natural consequence of the breach. You will have to decide what was the value of the plaintiffs business immediately before the breach, in October of 1974, considering the prospects for redevelopment which existed at that time, the degree to which those prospects were certain to occur and the time frame in which they would have occurred, had there been no breach. You must then compare this figure with the value which you assign to the plaintiffs business immediately after the breach in October of 1974, considering that no additional development would occur on those parcels which the October, 1974 referendum required to be retained as open space.”

The court added that the jury was required to assess the status of the business as of October, 1974, immediately before and immediately following the breach. The court then summarized the testimony of the expert witnesses for both sides as to pre- and postbreach evaluations. The plaintiff took an exception to the court’s instruction that the postbreach value be ascertained as of the time immediately following the breach. Counsel for the plaintiff conceded that the determination of damages must be made as of the time immediately following the breach, but nonetheless asserted that the time frame was unusually confining because “certain things . . . may have gone on for a period of time after, shall we say, after—ten minutes after the decision on October the 17th of 1974, [and] definitely have [been] a positive factor to a determination as to the total amount of damages.” In its brief to this court, the plaintiff claims that the charge prevented the jury from considering any circumstances that arose following the breach.

We conclude that the jury charge fairly presented the case to the jury and was correct in its articulation of the legal principles applicable to the assessment of the plaintiffs damages for diminution of the value of its business. The court’s use of the language, “immediately before” and “immediately after,” viewed in the context of the entire charge on this issue, served to focus the jury’s attention, in its evaluation of the business, on the time of the breach, in accordance with the applicable law. To arrive at its conclusion, the jury had to consider the evidence as to the projected effect of the redevelopment plan on the plaintiff’s business, had the plan gone forward, and the impact of its discontinuation on the plaintiff’s business. Therefore, the plaintiff was not prejudiced by the charge to the jury on loss of business.

Finally, the plaintiff contends that the charge prevented the jury from looking to the future to determine the extent to which the plaintiff was obliged to mitigate damages, and to ascertain damages incurred in so doing. The plaintiff also asserts that the jury’s consideration of damages arising from the deficiency judgment was likewise affected. We note that the court gave the jury separate instructions as to each of these issues. A fair reading of the charge discloses that the time frame applicable to assessing damages for loss of business was not imposed on the determination of the other elements of damages nor has the plaintiff suggested any reading of the charge that supports its argument. Accordingly, we find this claim to be without merit.

The Defendant’s Cross Appeal

The defendant appeals on the ground that the trial court abused its discretion in awarding prejudgment interest on the verdict calculated from the date of the breach to the date of the verdict. The ninth interrogatory presented to the jury the issue of whether the defendant had wrongfully detained money damages due the plaintiff as a result of the breach. The jury found that it had. The defendant argues that the wrongful detention did not occur until we issued our decision in West Haven v. Impact, 174 Conn. 160, 384 A.2d 353 (1978), in which we held that the referendum constituted a modification of the redevelopment plan. Accordingly, the defendant contends, interest, if any, should begin to run from that time. The defendant also asserts that interest should not be awarded. The defendant does not contest the amount of the interest calculated from the time of breach to the date of the verdict.

The allowance of prejudgment interest as an element of damages is an equitable determination and a matter lying within the discretion of the trial court. H.B. Toms Tree Surgery, Inc. v. Brant, 187 Conn. 343, 348, 446 A.2d 1 (1982); Cecio Bros., Inc. v. Feldman, 161 Conn. 265, 275, 287 A.2d 374 (1971). Before awarding interest, the trial court must ascertain whether the defendant has wrongfully detained money damages due the plaintiff. Cecio Bros., Inc. v. Feldman, supra, 274-75. Interest on such damages ordinarily begins to run from the time it is due and payable to the plaintiff. Id. “The determination of whether or not interest is to be recognized as a proper element of damage, is one to be made in view of the demands of justice rather than through the application of an arbitrary rule.” Bernhard v. Rochester German Ins. Co., 79 Conn. 388, 398, 65 A. 134 (1906).

At a posttrial hearing, the defendant objected to the allowance of interest arguing that the defendant had not supported the referendum that resulted in the breach and that it did not become clear that a breach had occurred until this court decided West Haven v. Impact, supra. Thus, the defendant asserted, interest, if any, should run from January, 1978. The defendant further argued that, in light of the history of this case, no prejudgment interest should be awarded. The trial court responded that it was agreed among the court and the parties that the factual predicate for awarding interest, wrongful detention of money damages, would be resolved by the jury and, upon an affirmative finding, interest would be computed. Aside from the general principles pertaining to the court’s discretion in awarding interest, the defendant cited no legal authority for its proposition that interest be awarded from the date of our decision in West Haven v. Impact, supra.

The defendant has renewed these same arguments in its brief and at oral argument before this court. As to its opposition to the referendum, we remind the defendant that its identification with its electorate, and thus, its liability for the effect of the referendum, has been established. West Haven Sound Development Corporation v. West Haven, supra. Accordingly, we shall not entertain this contention. Furthermore, as at trial, the defendant has cited no authority for its argument as to the time from which interest should be calculated, nor are we aware of any authority suggesting the result sought by the defendant. Were we to follow the defendant’s logic, interest could never be awarded from the time of breach but only upon establishment of the fact of the breach after trial or, as in this case, upon an appellate court’s reversal of an erroneous trial court decision. That is simply not the law in this state. See, e.g., Sabo v. Strolis, 148 Conn. 504, 506, 172 A.2d 609 (1961) (interest allowed from date of breach of construction contract); Stoddard v. Sagal, 86 Conn. 346, 350, 85 A. 519 (1912) (contract for legal services, refusal to pay debt; interest allowed from presentation of the bill to the date of verdict); Loomis v. Norman Printers Supply Co., 81 Conn. 343, 350, 71 A. 358 (1908) (contract for goods; interest to be computed from the date of breach, not from the date of contract). Therefore, the trial court did not abuse its discretion in awarding interest from the date of the breach.

There is no error in either the plaintiffs appeal or the defendant’s cross appeal.

In this opinion the other justices concurred.

       The defendant briefed two adverse rulings of the trial court, asking for review in the event we granted the plaintiff a new trial. In light of our disposition of this case, we need not address those issues.

       The defendant, relying on our decision in State v. Bell, 188 Conn. 406, 410, 450 A.2d 356 (1982), argues that the trial court’s denial of the plaintiff’s pretrial motion in limine is not reviewable and that the plaintiff, by failing to object at trial to the introduction of evidence of causation, forfeited its right to appeal this issue. We disagree. Effective October 1,1986, Practice Book § 4185 was amended to provide in part: “In jury trials, where there is a motion, argument, or offer of proof or evidence in the absence of the jury, whether during trial or before, pertaining to an issue that later arises in the presence of the jury, and counsel has fully complied with the requirements for preserving any objection or exception to the judge’s adverse ruling thereon in the absence of the jury, the matter shall be deemed to be distinctly raised at the trial for purposes of [preservation on appeal] without a further objection or exception provided that the grounds for such objection or exception, and the ruling thereon as previously articulated, remain the same.” Immediately following the court’s denial of the motion in limine, the plaintiff requested and was granted an exception. We, therefore, consider the plaintiff’s claim to be reviewable. See State v. Kluttz, 9 Conn. App. 686, 703 n.12, 521 A.2d 178 (1987).

       Practice Book § 312 provides in relevant part: “The court may submit to the jury interrogatories for the purpose of explaining or limiting a general verdict, which shall be answered and delivered to the clerk as a part of the verdict.”

       Both the plaintiff and the defendant had submitted proposed interrogatories to the trial court.

       See New Haven Savings Bank v. West Haven Sound Development, 190 Conn. 60, 459 A.2d 999 (1983).


author: Callahan, J.

text:
    State of Connecticut v. Earl Reddick
    (13148)
    Peters, C. J., Shea, Callahan, Covello and Hull, Js.
    Argued January 13
    decision released May 10, 1988

      Kent Drager, assistant public defender, with whom, on the brief, was Joette Katz, public defender, for the appellant (defendant).

      Roland D. Fasano, assistant state’s attorney, with whom, on the brief, was Arnold Markle, state’s attorney, for the appellee (state).
   Callahan, J.

The defendant was charged in a substitute information with aiding and abetting a robbery in the first degree in violation of General Statutes §§ 53a-134 (a) (4) and 53a-8, conspiracy to commit robbery in the first degree in violation of General Statutes § 53a-48, and possession of a sawed-off shotgun in violation of General Statutes § 53a-211. A jury acquitted him of aiding and abetting a robbery and of conspiracy but found him guilty of possession of a sawed-off shotgun. He was sentenced by the trial court to a term of five years imprisonment. We find error.

The robbery and conspiracy charges resulted from the robbery of Bask’s Liquor Cabinet at 432 Shelton Avenue in New Haven at about 1:30 p.m. on June 28, 1985. In that robbery, a lone black male entered the liquor store carrying a double-barreled, sawed-off shotgun concealed in a green trash bag. Displaying the shotgun, he forced a clerk, Barbara DiBenedetto, into a back room where she was made to sit on the floor. While the black male with the shotgun stood guard, another person, whom DiBenedetto heard but did not see, entered the store and emptied the cash register. DiBenedetto later discovered that her handbag had also been taken.

The defendant was linked to the robbery as a result of the execution of a search warrant at a two-family house located at 124-126 Read Street in the Newhall section of New Haven. The information in the affidavit relied upon to secure the issuance of the search warrant was obtained by Detective Michael Bouchard of the Hamden police department and Detective Douglas McDonald of the New Haven police department who were jointly investigating a number of store holdups in the Hamden-New Haven area by a team of black males.

On July 3, 1985, at approximately 9:30 a.m., while conducting the investigation, Bouchard came upon an older, brown Cadillac parked in front of 125 Read Street in New Haven. The Cadillac fit the description of a car observed at the scene of the holdups that McDonald and Bouchard were investigating. Bouchard summoned McDonald and together they conducted a surveillance of the automobile until it was approached by the defendant and Terrance Bethea, both black males. The detectives confronted and questioned the two men briefly. It was then discovered, through a warrant check, that there was an outstanding arrest warrant for Bethea on a robbery charge. Bethea was taken into custody and brought to New Haven police headquarters where he subsequently spoke to police and gave a statement.

Bethea told the police that he had spent the previous night with the defendant in the defendant’s bedroom on the third floor of the defendant’s mother’s apartment at 124-126 Read Street. While there, he had observed a double-barreled, sawed-off shotgun in the drawer of a dresser located in the defendant’s third floor bedroom. He said that in the bedroom he had also seen a pair of sunglasses with bright red frames and a red safety strap. Similar glasses had been described as having been worn by one of the perpetrators of the robberies that were under investigation. Bethea also said that he had seen the glasses a few days earlier on Preston Wright, the boyfriend of the defendant’s sister.

As a result of this and other information supplied by Bethea, McDonald and Bouchard obtained a search warrant for the defendant’s person, the brown Cadillac and “[t]he premises of 124-126 Read Street, New Haven, Second and Third Floor. ” (Emphasis added.) When the detectives executed the search warrant they located the sunglasses in a woman’s purse hanging on the wall of the third floor bedroom. Bouchard also found DiBenedetto’s handbag, checkbook, and some of her personal papers, as well as the cash drawer from the liquor store register and a green trash bag inside another trash bag located directly outside the defendant’s bedroom door. In addition, DiBenedetto’s keys, which also had been taken in the robbery, were discovered on top of a dresser in the bedroom.

Despite a diligent search, however, the shotgun was not found on either the second or third floors of 124-126 Read Street. Those floors constituted the living area of the defendant’s mother’s apartment and were the only areas of the house the warrant authorized the police to search. McDonald, however, unilaterally decided to expand the search and descended to the basement. The basement was accessible from both the defendant’s mother’s second floor apartment and the first floor apartment that was occupied by an elderly woman, a double amputee, confined to a wheel chair. The basement was unpartitioned and housed a clothes washer and dryer. McDonald found the sawed-off shotgun hidden in the tub of the washer. After consulting with his superior and the judge who signed the search warrant, McDonald seized the shotgun. The defendant was subsequently charged with its possession.

Prior to trial, a motion to suppress the shotgun and the items recovered from the trash bag was heard and denied. At trial, the shotgun was admitted into evidence and identified by DiBenedetto as similar to the shotgun she saw during the robbery and by McDonald as the shotgun he had seized in the basement of the house where the defendant’s mother lived. DiBenedetto also identified the personal property that was recovered in the search as hers and testified that the sunglasses found were similar to those worn by the robber who had confronted her. She testified further, however, that the defendant was definitely not the robber with the shotgun.

On appeal, the defendant has raised several claims of error. For the purposes of this appeal we think it necessary to address three of those claims.

I

We first address the defendant’s claim that there was insufficient evidence to convict him of possession of the sawed-off shotgun.

In reviewing a sufficiency of the evidence claim, we view the evidence in the most favorable light possible, with a view toward sustaining the verdict of the jury. State v. Alfonso, 195 Conn. 624, 633, 490 A.2d 75 (1985); State v. Gabriel, 192 Conn. 405, 421, 473 A.2d 300 (1984); State v. Raffone, 161 Conn. 117, 125, 285 A.2d 323 (1971). We cannot retry the case. State v. Rodriquez, 200 Conn. 685, 693, 513 A.2d 71 (1986); Kaplan v. Kaplan, 186 Conn. 387, 391, 441 A.2d 629 (1982). Nor can we “sit as a [seventh] juror who may cast a vote against the verdict based upon our feeling that some doubt of guilt is shown by the cold printed record. We have not had the jury’s opportunity to observe the conduct, demeanor, and attitude of the witnesses and to gauge their credibility.” State v. Stepney, 191 Conn. 233, 255, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772 (1984).

The state was not required to prove that the defendant had actual physical possession of the shotgun. State v. Gonski, 155 Conn. 463, 467, 232 A.2d 483 (1967). It was necessary only to prove that he had exercised dominion and control over it and had knowledge of its presence and character. State v. Kas, 171 Conn. 127, 130, 368 A.2d 196 (1976); State v. Williams, 169 Conn. 322, 335, 363 A.2d 72 (1975); State v. Harris, 159 Conn. 521, 531, 271 A.2d 74 (1970), cert. dismissed, 400 U.S. 1019, 91 S. Ct. 578, 27 L. Ed. 2d 630 (1971).

After a careful review of the record we cannot say that the jury could not reasonably have concluded, upon the facts established and the reasonable inferences drawn therefrom, that the cumulative effect of the evidence was sufficient to justify a verdict of guilty beyond a reasonable doubt.

II

We next address the defendant’s claim that the trial court erred by denying his motion to suppress the shotgun that was seized as a result of McDonald’s warrant-less search of the basement. The state contends that, because the defendant did not pay rent, had no possessory interest in his mother’s apartment, and had no reasonable expectation of privacy in the basement, he “lacked standing to challenge the seizure of the sawed-off shotgun.”

The defendant claims that as a resident of his mother’s apartment he had a reasonable expectation of privacy in the apartment and its appurtenances. He argues, therefore, that absent exigent circumstances, or some other exception to the warrant requirement, not present here, the search of the basement and the seizure of the shotgun violated his rights under the fourth amendment to the United States constitution and the shotgun should not have been admitted into evidence. We agree with the defendant.

A person is entitled to fourth amendment protection anywhere he resides where he has a reasonable expectation of privacy. Commonwealth v. Strickland, 457 Pa. 631, 634, 326 A.2d 379 (1974); 4 W. LaFave, Search and Seizure § 11.3 (a), p. 285. A person “who resides at a private residence with permission of the [lessee] as a guest or invitee may demonstrate an expectation of privacy in the premises legally sufficient to support a challenge to a police search.” United States v. Cassity, 720 F.2d 451, 458 (6th Cir. 1983), vacated and remanded, 468 U.S. 1212, 104 S. Ct. 3581, 82 L. Ed. 2d 879 (1984), rev’d on other grounds, 604 F. Sup. 1566 (E.D. Mich. 1985), aff’d, 807 F.2d 509 (6th Cir. 1986); United States v. Underwood, 717 F.2d 482, 486 n.1 (9th Cir. 1983) (Skopil, J., dissenting), cert. denied, 465 U.S. 1036, 104 S. Ct. 1309, 79 L. Ed. 2d 707 (1984); see also United States v. Torres, 705 F.2d 1287, vacated and remanded on other grounds, 718 F.2d 998 (11th Cir. 1983), on appeal after remand, 741 F.2d 1323 (11th Cir. 1984); United States v. Robertson, 606 F.2d 853, 858 n.2 (9th Cir. 1979); State v. Cardona, 6 Conn. App. 124, 133-34, 504 A.2d 1061 (1986). Moreover, that expectation of privacy may extend to all parts of the house. United States v. Cassity, supra, 457; United States v. Torres, supra, 1295; see United States v. Banerman, 552 F.2d 61, 64 (2d Cir. 1977).

The capacity to claim the protection of the fourth amendment does not depend upon a property interest, permanency of residence, or payment of rent but upon whether the person who claims fourth amendment protection has a reasonable expectation of privacy in the invaded area. Rakas v. Illinois, 439 U.S. 128, 143, 99 S. Ct. 421, 58 L. Ed. 2d 387 (1978), reh. denied, 439 U.S. 1122, 99 S. Ct. 1035, 59 L. Ed. 2d 83 (1979); Terry v. Ohio, 392 U.S. 1, 8-13, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968); Katz v. United States, 389 U.S. 347, 353, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967); United States v. Lyons, 706 F.2d 321, 327 (D.C. Cir. 1983); Commonwealth v. Rowe, 433 Pa. 14, 17, 249 A.2d 911 (1969). Further, the fact that a person does not have the exclusive use of an area does not bar his having a reasonable expectation of privacy that furnishes standing to object to a government search. Mancusi v. DeForte, 392 U.S. 364, 368, 88 S. Ct. 2120, 20 L. Ed. 2d 1154 (1968); Garrison v. State, 345 A.2d 86, 93 (Md. App. 1975).

Whether a reasonable expectation of privacy exists is a determination to be made on a case-by-case basis. United States v. Brock, 667 F.2d 1311, 1320 n.8 (9th Cir. 1982), cert. denied, 460 U.S. 1022, 103 S. Ct. 1271, 75 L. Ed. 2d 493 (1983); United States v. Brown, 635 F.2d 1207, 1211 (6th Cir. 1980); State v. Brown, 198 Conn. 348, 356, 503 A.2d 566 (1986); State v. Zindros, 189 Conn. 228, 239-40, 456 A.2d 288 (1983), cert. denied, 465 U.S. 1012, 104 S. Ct. 1014, 79 L. Ed. 2d 244 (1984). That determination entails a two-part inquiry: first, whether the individual has exhibited an actual subjective expectation of privacy, and second, whether that expectation is one society recognizes as reasonable. Katz v. United States, supra, 361; United States v. Cassity, supra, 456; State v. Zindros, supra, 239; State v. Cooper, 9 Conn. App. 15, 20, 514 A.2d 758 (1986).

We believe that an adult son or daughter, such as the defendant, who is living permanently or staying temporarily with a parent in the parental home, has a reasonable expectation of privacy in that home. The relationship of parent and child is normally such that the child would be on the premises legitimately, would have free access to its facilities, would be able to exclude uninvited or unauthorized persons and would have a legitimate expectation that the home would be free of governmental intrusion. See United States v. Cassity, supra, 458; United States v. Torres, supra, 1294-95; United States v. Haydel, 649 F.2d 1152, 1154-55 (5th Cir. 1981), cert. denied, 455 U.S. 1022, 102 S. Ct. 1721, 72 L. Ed. 2d 140 (1982); State v. Cardona, supra, 134. The evidence is indicative of that type of relationship in this case. Indeed, the defendant had a key to his mother’s apartment with which he admitted the police the day of the search and with which he could come and go as he pleased. Under the circumstances, the defendant had a legitimate expectation of privacy in his mother’s home that is “recognized and permitted by society.” Rakas v. Illinois, supra, 143 n.12. He, in effect, stood in the shoes of his mother. United States v. Cassity, supra, 458.

Further, if, as the jury apparently found, the defendant caused the shotgun to be placed in the clothes washer in the basement, he obviously exhibited a subjective expectation of privacy in that area of his mother’s home. See United States v. Taborda, 635 F.2d 131, 137 (2d Cir. 1980). The salient question then is whether the defendant’s subjective expectation of privacy in the common basement area of a two-family house is an expectation that society would recognize as reasonable. Katz v. United States, supra, 361; State v. Zindros, supra, 239.

Police observations in the common areas of multiple family dwellings do not constitute a search under the fourth amendment if the circumstances indicate that the area is readily accessible to outsiders. 1W. LaFave, supra, § 2.3 (b), p. 388. The contrary is true, however, if the area is sufficiently secured so as to give the tenants a justified expectation of privacy. Garrison v. State, supra, 94-95; 1 W. LaFave, supra, § 2.3 (b), p. 389

The common basement of a two-family house is an area where a tenant might expect other tenants and invited guests but would not expect deliverymen, salesmen, mailmen, policemen or trespassers. United States v. Carriger, 541 F.2d 545, 551 (6th Cir. 1976). Certainly, the basement in such a dwelling is not an area readily accessible to the public or to any significant number of people. See Fixel v. Wainwright, 492 F.2d 480, 484 (5th Cir. 1974). It is not a means of ingress or egress as is a common hallway that invites traffic and, consequently, the prying eyes and ears of strangers. United States v. Holland, 755 F.2d 253, 256 (2d Cir.), cert. denied, 471 U.S. 1125, 105 S. Ct. 2657, 86 L. Ed. 2d 274 (1985); United States v. Anderson, 533 F.2d 1210, 1214 (D.C. Cir. 1976). Absent permission or an exception to the warrant requirement, the police cannot constitutionally enter such an area without a warrant. See United States v. Guarino, 629 F. Sup. 320, 327 n.2 (D. Conn. 1986); United States v. Booth, 455 A.2d 1351, 1354 (D.C. App. 1983); 1 W. Lafave, supra. “No case has been cited to us and we have found none, holding that, absent consent or exigent circumstances, the police may make a warrantless search of a basement area closed to the public and to be used only by tenants of the building.” Garrison v. State, supra, 96.

Here, the basement was secured from the outside and readily accessible only from the two apartments within the dwelling. That being the case, the tenants of those two apartments exercised considerably more control over access to the basement area than would be true in a larger, more populated building. The tenants and their families, therefore, had a reasonable expectation of privacy in the basement that might not be true of a multi-unit apartment complex. United States v. Fluker, 543 F.2d 709, 716 (9th Cir. 1976); People v. Killebrew, 76 Mich. App. 215, 218, 256 N.W.2d 581 (1977). McDonald, the police officer who conducted the search of the basement, instinctively recognized this when, after he found the shotgun, he telephoned the judge who issued the warrant to seek permission to amend it by adding the basement to the areas to be searched.

We conclude that the defendant’s subjective expectation of privacy in the basement at 124-126 Read Street was reasonable and was an expectation that society would also recognize as reasonable. Therefore, because the search that disclosed the shotgun was not authorized by a warrant, the fruit of that search, the shotgun, should have been suppressed at the defendant’s trial. Wong Sun v. United States, 371 U.S. 471, 484-87, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963).“[T]he Constitution sometimes insulates the criminality of a few in order to protect the privacy of us all.” Arizona v. Hicks, 480 U.S. 321, 329, 107 S. Ct. 1149, 94 L. Ed. 2d 347 (1987).

HI

Another of the defendant’s claims of error will be addressed briefly only because it may arise in the event the state elects to retry the defendant without the availability of the suppressed shotgun as evidence, using other evidence to attempt to tie him to its possession.

The defendant claims that the trial court erred when it failed to suppress DiBenedetto’s personal property and a trash bag seized by Bouchard from another trash bag located outside the defendant’s bedroom door. The state claims that the evidence was admissible because Bouchard was where he had a right to be by virtue of the search warrant, and because he inadvertently discovered the items in plain view while legitimately searching for the shotgun and sunglasses.

When the police have prior justification for an intrusion and inadvertently come across items of immediately apparent evidentiary value in plain view they may seize those items. Texas v. Brown, 460 U.S. 730, 741-43, 103 S. Ct. 1535, 75 L. Ed. 2d 502 (1983); Washington v. Chrisman, 455 U.S. 1, 7, 102 S. Ct. 812, 70 L. Ed. 2d 778 (1982); Coolidge v. New Hampshire, 403 U.S. 443, 466, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971); United States v. $10,000 in U.S. Currency, 780 F.2d 213, 217 (2d Cir. 1986). The police meet the “immediately apparent” requirement if, on discovery, they have probable cause to associate the property in plain view with criminal activity without further investigation. Arizona v. Hicks, supra, 324-27; White v. State, 729 S.W.2d 737, 740-41 (Tex. Crim. App. 1987).

When the trial court, at the conclusion of the suppression hearing, ruled on the defendant’s motion to suppress the items found in the trash bag, it failed to make findings as to whether the discovery of the evidence was inadvertent or whether its evidentiary value was immediately apparent to the officer who discovered it. If, therefore, the state chooses to retry the defendant on the charge of possession of a sawed-off shotgun, a new suppression hearing should be held in order that specific findings may be made regarding the application of the plain view doctrine to the items discovered in the trash bag.

There is error, the judgment is set aside and the case is remanded for a new trial.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 53a-211. possession of a sawed-off shotgun or silencer: class d felony, (a) A person is guilty of possession of a sawed-off shotgun or a silencer when he owns, controls or possesses any sawed-off shotgun that has a barrel of less than eighteen inches or an overall length of less than twenty-six inches or when he owns, controls or possesses any silencer designed to muffle the noise of a firearm during discharge.
      “(b) The provisions of this section shall not apply to persons, firms, corporations or museums licensed or otherwise permitted by federal or state law to possess, control or own sawed-off shotguns or silencers.
      “(c) Possession of a sawed-off shotgun or silencer is a class D felony.”

       The testimony at the conclusion of the hearing to suppress evidence, at which time the trial court denied the defendant’s motion, indicated that the defendant lived with his mother at 124-126 Read Street and that the bedroom searched was his. The defendant’s testimony at the trial, however, indicated that he was staying only temporarily with his mother at 124-126 Read Street and that the bedroom was his sister’s. Under the view we take of the case, this discrepancy does not have to be resolved because, under either version, it appears the defendant was legitimately on the premises at 124-126 Read Street with his mother’s permission and had stayed there several days immediately prior to July 3,1985. See United States v. Haydel, 649 F.2d 1152 (5th Cir. 1981), cert. denied, 455 U.S. 1022, 102 S. Ct. 1721, 72 L. Ed. 2d 140 (1982).

       DiBenedetto had previously identified Preston Wright as the wielder of the shotgun. Wright pleaded guilty to the Bask’s Liquor Cabinet robbery prior to the defendant’s trial.

       After McDonald found the shotgun, and before he seized it, he telephoned the judge who had issued the search warrant and was given permission to add “And the basement of 124-126 Read St.” to the warrant. The state does not claim that this was of any effect, and the seizure of the shotgun has been treated by both the state and the defendant as having been made without a warrant. A search cannot be justified by the potent evidence it produces. Byars v. United States, 273 U.S. 28, 29, 47 S. Ct. 248, 71 L. Ed. 520 (1927); State v. Zindros, 189 Conn. 228, 255, 456 A.2d 288 (1983), cert. denied, 465 U.S. 1012, 104 S. Ct. 1014, 79 L. Ed. 2d 244 (1984); see also Commonwealth v. Shaw, 476 Pa. 543, 552, 383 A.2d 496 (1978).

       The state relies to a great extent on United States v. Holland, 755 F.2d 253 (2d Cir.), cert. denied, 471 U.S. 1125, 105 S. Ct. 2657, 86 L. Ed. 2d 274 (1985), as did the trial court, for its position that the defendant did not have a reasonable expectation of privacy in the basement because it was a common area. Holland concerned the validity of a warrantless arrest in the common hallway of a two-family house. We do not believe the instant case fits within the Holland analysis for two reasons. First, Holland placed a great deal of emphasis on the fact that the defendant was arrested without a warrant in a common hallway and not in his “home” as prohibited by Payton v. New York, 445 U.S. 573, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980). United States v. Holland, supra, 255. Second, a common hallway in a two-family house is the means of ingress and egress to both apartments for visitors, deliverymen and tradesmen, among others, where one might reasonably expect to find an assortment of individuals. Id., 256. A common basement, on the other hand, is normally used as a repository of property, not an access way, and would not generate the type of outside traffic that would lead to the diminution of an expectation of privacy. See United States v. Guarino, 629 F. Sup. 320, 327 n.2. (D. Conn. 1986).

       The trial court found only that Bouchard “used the least intrusive method of ascertaining the nature of that bag which was in plain view.”


author: Covello, J.

text:
    In re Application of Anthony F. Pagano
    (13204)
    Peters, C. J., Healey, Shea, Callahan, Glass, Covello and Hull, Js.
    Argued February 11
    decision released May 10, 1988

      John L. Giulietti, pro se, the appellant.

      F. Mac Buckley, for the appellee (Anthony F. Pagano).
   Covello, J.

This is an appeal by John L. Giulietti, an attorney at law, from a judgment authorizing the return to practice of a suspended fellow attorney, Anthony F. Pagano. The issues presented are: (1) whether the appellant Giulietti had the right to participate in the proceedings below; and (2) whether the evidence presented was sufficient to support the conclusions reached by the Superior Court. We answer both questions in the affirmative and find no error.

Examination of the record discloses that on May 19, 1984, Anthony F. Pagano, an attorney at law, was involved in an automobile accident. An occupant of a second vehicle was killed.

On August 29,1984, Pagano pleaded nolo contendere to charges of misconduct with a motor vehicle. General Statutes § 53SÍ-57. The court found him guilty and imposed a sentence of one year, execution suspended, to be followed by a period of probation for two years. The court also imposed a fine of $500 and ordered 150 hours of community service.

On November 5, 1984, the grievance committee for the Hartford-New Britain judicial district filed a presentment pursuant to Practice Book § 31, seeking a rule to show cause why Pagano should not be disbarred or otherwise disciplined by reason of his unacceptable behavior in connection with the automobile accident.

On October 1, 1985, following a hearing on the presentment, the court, Shaughnessy, J., filed a memorandum in which it found that, after the accident, Pagano had made statements “to the investigating officer that were both misleading and untrue” and that “[t]here were also questions raised by the investigation concerning the attorney’s abuse of alcohol and drugs.” The court “was satisfied that prior to May 19, 1984, Attorney Pagano’s reputation for both integrity and competence was a good one.” The court concluded, however, that the attorney was then “unfit to continue the practice of law.” The court entered an order of indefinite suspension until “he [Pagano] satisfies the court that he has conquered whatever problems he may have now or may have had in the past with substance abuse and that his mental and emotional state has improved to the extent that they will not interfere with his ability to practice law.”

On October 10,1986, Pagano filed an application for reinstatement to the bar. In accordance with Practice Book § 36, the matter was referred to the standing committee on recommendations for admission to the bar for the Hartford-New Britain judicial district. On January 6,1987, the standing committee conducted a public hearing and, on April 1, 1987, filed its report with the court. The report concluded that “having been satisfied by clear and convincing evidence that Anthony F. Pagano is presently a fit and safe person to engage in the practice of law, the Committee recommends to the Court that Anthony F. Pagano be reinstated to the practice of law.”

On May 5,1987, Giulietti filed a motion “to be made a party” or, in the alternative, sought “permission to intervene to oppose the application for reinstatement.” On May 8,1987, the court, Aronson, Quinn and Stoughton, Js., denied the appellant’s motion. The court thereafter allowed interested parties to comment on the committees’ recommendations. Giulietti appeared and was fully heard. On June 19,1987, the three judge panel issued its decision ordering Pagano’s reinstatement as of October 1, 1987. This appeal followed.

I

Giulietti first contends that the court erred in denying his motion “to be made a party” or in the alternative “grant him permission to intervene” in the proceedings. We disagree.

“ ‘The proceeding to disbar [or suspend] an attorney is neither a civil action nor a criminal proceeding, but is a proceeding sui generis, the object of which is not the punishment of the offender, but the protection of the court.’ In re Bowman, 7 Mo. App. 569 [1879].” State v. Peck, 88 Conn. 447, 453, 91 A. 274 (1914). The proceeding is “an investigation by the court into the conduct of its . . . own officers . . Fairfield County Bar v. Taylor, 60 Conn. 11, 15, 22 A. 441 (1891); and is “one undertaken ‘for the purpose of preserving the courts of justice from the official ministration of persons unfit to practice in them.’ Ex parte Wall, 107 U.S. 265, 288, 2 Sup. Ct. Rep. 569 [27 L. Ed. 552 (1882)]; Penobscot Bar v. Kimball, 64 Me. 140, 147 [1875]; Boston Bar Association v. Greenhood, 168 Mass. 169, 183, 46 N.E. 568 [1897]; In re Bowman, [supra].State v. Peck, supra, 452.

“There are no adversary parties [to grievance proceedings] in the technical legal sense, although our reports contain cases which, in their titles, carry as parties not only the names of the petitioners [or respondents] but those of bar examining committees and grievance committees. In re Application of Dodd, [131 Conn. 702, 705, 42 A.2d 36 (1945)]; Grievance Committee v. Broder, 112 Conn. 263, 265, 152 A. 292 [1930].” Heiberger v. Clark, 148 Conn. 177, 182, 169 A.2d 652 (1961).

Since there are no adversary parties in grievance proceedings, it was not necessary for Giulietti to move for admission as a party in order to participate in the proceedings. The trial court, therefore, correctly denied the motion in which he sought to do so while, equally correctly, afforded him the opportunity to be heard thereafter.

An ancillary question remains as to whether the appellant, as an attorney, may be characterized as a “party aggrieved by the decision of the court”; Practice Book § 4000; thereby qualifying him to pursue an appeal. We answer in the affirmative.

“The end result of the [grievance] proceedings is in the nature of a judgment from which an appeal lies to this court. Heiberger v. Clark, supra, 183; In re Application of Dodd, supra, 707; O’Brien’s Petition, 79 Conn. 46, 59, 63 A. 777 [1906].” In re Application of Courtney, 162 Conn. 518, 522, 294 A.2d 569 (1972).

We have earlier concluded that “every member of the bar has an interest in the admission of an attorney upon motion without examination.” In re Application of Dodd, supra, 705. We see no reason why this should not also be the case in connection with petitions by attorneys who seek readmission following suspension.

“Attorneys have a franchise which is regarded as a property right. O’Brien’s Petition, [supra, 55].” In re Application of Dodd, supra. This property right gives the attorney “an interest which he had a right to protect from anyone seeking admission to the bar who he believes lacks some essential prescribed qualification therefor. See 5 Am. Jur. [Attorneys at Law] 272, § 18.” In re Application of Dodd, supra, 706. While this proposition has been previously limited to attorneys in active practice within the judicial district where the proceeding is pending; id.; we are persuaded in this era of high mobility and instantaneous communication that this right in fact extends to all attorneys within this geographically compact state.

II

Thus armed with standing to pursue this appeal, Giulietti next argues that the evidence presented to the standing committee was insufficient to support the committee’s conclusion that the petitioner was “presently a fit and safe person to engage in the practice of law.” He claims that: (1) the substances being abused should have been specifically identified; (2) the petitioner’s treating physician should have been physically present to testify at the committee hearing; and (3) there was inadequate evidence that the petitioner was no longer drug dependent. We do not agree.

The October 1,1985 memorandum that ordered the petitioner’s suspension made no finding that he was in fact a drug dependent person. The conclusion that he was “unfit to continue the practice of law” was premised in part, however, on the court’s finding that there were “questions raised concerning substance abuse (both alcohol and drugs). . . .”

In support of his application for reinstatement, the petitioner offered the expert testimony of Nicholas J. Palermo, an osteopathic doctor, who was the petitioner’s personal physician and the director of a medical testing laboratory. Palermo testified that from April, 1986, until January, 1987, he had supervised random drug testing of the petitioner and had found him free of drugs. The substance screening included tests for alcohol, cocaine, marihuana, amphetamines and barbituates among other drugs. Although the standing committee chairman had invited anyone present to cross-examine those testifying, no one challenged the sufficiency of the screening procedures nor Palermo’s conclusion that the petitioner was not now a substance abuser.

In further support of his claim of present fitness the petitioner offered the testimony of Abraham L. Halpern, a consulting psychiatrist who specializes in the treatment of professionals. In addition to his own observations of the petitioner on January 9, 1986, in which he found “no signs of mental illness,” Halpern enlisted the consultative services of Eileen C. Bloomingdale, Ph.D., a psychodiagnostician who administered a seven-hour series of psychological tests to the petitioner. Bloomingdale concluded that the petitioner’s “mental and emotional state is such that he is able to fully attend to his responsibility to law clients and fulfill such responsibility. There is no psychological impediment to Mr. Pagano resuming the practice of law.”

Halpern examined the petitioner further on March 27, 1986, and “again found him to be entirely free of mental illness.” He consulted with the petitioner’s treating psychiatrist, Walter A. Borden. He also consulted with Carolyn Caputo, a family counseling psychotherapist, who had conducted joint counseling with the petitioner and his wife. He reviewed police reports of the May 19, 1984 automobile accident, the report of senior probation officer Dennis R. Burke, the petitioner’s probation supervisor, and the written report of family counselor Carolyn Caputo. On the basis of his own observations, reviews of reports and consultations with others, Halpern concluded that “Mr. Pagano is entirely fit, mentally and emotionally, to resume the practice of law.”

The appellant correctly points out that Borden, the petitioner’s treating psychiatrist, did not personally testify. He did, however, submit a report in which he disclosed that he had treated the petitioner from May, 1984, through his discharge on September 11,1986. In view of Halpern’s extensive analysis, Borden’s position was only duplicative as he was of the view that “[a]t [no\ time did I find problems, from a psychiatric point of view, that would affect or impair his ability to practice law.” (Emphasis added.) In view of Borden’s perception that the petitioner had never been psychologically unfit to practice, it is evident that his personal testimony would only have corroborated Halpem’s conclusion of present fitness to resume the practice of law.

The scope of our review in cases of this nature is a limited one. “All of our cases agree that the trial court has a wide discretion in the premises. [Grievance Committee v. Broder, 112 Conn. 263, 266, 152 A. 292 (1930)]; State v. Peck, [supra, 460]; Grievance Committee v. Ennis, 84 Conn. 594, 602, 80 A. 767 [1911]; In re Durant, [80 Conn. 140, 149, 67 A. 497 (1907)]. As is stated in Fairfield County Bar v. Taylor, supra, 13, ‘A revising tribunal . . . would feel the delicacy of interposing its authority, and do so only in a plain case.’ In Hayward v. Plant, 98 Conn. 374, 382, 119 A. 341 [1923], the general rule is stated to be: ‘Judicial discretion is always a legal discretion. Its abuse will not be interfered with on appeal to this court except in a case of manifest abuse and where injustice appears to have been done.’ ” Grievance Committee v. Nevas, 139 Conn. 660, 666, 96 A.2d 802 (1953).

Although our review of grievance proceedings is restricted, we recognize the seriousness of the interests that we must safeguard. We have a continuing duty “to make it entirely clear that the standards of conduct, nonprofessional as well as professional, of the members of the profession of the law in Connecticut have not changed, and that those standards will be applied under our rules of law, in the exercise of a reasonable discretion . . . .” Grievance Committee v. Broder, supra, 278.

“An attorney at law admitted to practice, and in the exercise of the right thus conferred to act as an officer of the court in the administration of justice, is continually accountable to it for the manner in which he exercises the privilege which has been accorded him. His admission is upon the implied condition that his continued enjoyment of the right conferred is dependent upon his remaining a fit and safe person to exercise it, so that when he, by misconduct in any capacity, discloses that he has become or is an unfit or unsafe person to be entrusted with the responsibilities and obligations of an attorney, his right to continue in the enjoyment of his professional privilege may and ought to be declared forfeited. As important as it is that an attorney be competent to deal with the oftentimes intricate matters which may be entrusted to him, it is infinitely more so that he be upright and trustworthy.” State v. Peck, supra, 450.

The readmission process following the indefinite suspension of an attorney must focus, however, on the issue of present fitness to practice. Id., 457; Grievance Committee of the Bar of New Haven County v. Sinn, 128 Conn. 419, 422, 23 A.2d 516 (1941). Character is not measured in the crucible of a single instance and the assessment for reentry appropriately centers on the question of present fitness. Our review of the record discloses an abundance of credible evidence before the standing committee to support its conclusion of the petitioner’s current fitness to practice law.

There is no error.

In this opinion the other justices concurred.

       General Statutes § 53a-57 provides: “(a) a person is guilty of misconduct with a motor vehicle when, with criminal negligence in the operation of a motor vehicle, he causes the death of another person.
      “(b) misconduct with a motor vehicle is a class D felony.”

       Practice Book § 31 then provided in relevant part: “Presentment of attorneys for misconduct not occurring in the actual presence of the court shall be made by written complaint of the grievance committee .... Upon the filing of such complaint a rule to show cause shall issue to the defendant .... Unless otherwise ordered by the court, such complaints shall be prosecuted by local bar counsel . . . and upon such hearing the court shall make such lawful order as may to it seem just. Such complaints shall be proceeded with as civil actions.”
      This section was thereafter amended on June 21,1985, January 24,1986, and June 23,1986. Presentments now originate upon the complaint of the statewide grievance committee and, unless otherwise ordered by the court, are prosecuted by the chief attorney for presentments or his or her designee.

       Practice Book § 36 then provided in relevant part: “Any application for reinstatement . . . shall be referred, by the court to which it is brought, to the standing committee on recommendations for admission to the bar that has jurisdiction over the judicial district court location in which the applicant was suspended. . . . The standing committee . . . shall investigate the application, hold hearings pertaining thereto and render a report with its recommendations to the court. The court shall thereupon inform the chief justice of the supreme court of the pending application and report, and the chief justice shall designate two other judges of the superior court to sit with the judge presiding at the session. Such three judges, or a majority of them, shall determine whether the application should be granted.”

       For purposes of this reference, the standing committee was reconstituted and enlarged at the direction of Chief Justice Ellen A. Peters. Its members included Richard C. Willard, chairman; Marilyn P. Seichter, secretary; Maurice T. Fitzmaurice; Maurice R. Gersten; and Milton Krevolin.

       Practice Book § 4000 provides in relevant part that “[i]f a party is aggrieved by the decision of the court . . . that party may appeal from the final judgment. . .

       We note, however, that failure physically to appear and contest the proposition advanced in a sui generis proceeding such as this constitutes an implicit consent to the judgment that thereafter follows, so that an attorney who has not appeared and participated, is not aggrieved. See, e.g., Cannavo Enterprises, Inc. v. Burns, 194 Conn. 43, 46, 478 A.2d 601 (1984).

       The April 1,1987 standing committee report, issued eighteen months after the suspension memorandum, found specifically that investigation at the scene of the fatal automobile accident disclosed an odor of alcohol on the petitioner’s breath, but not sufficient to declare him under the influence. At the request of state police, the petitioner performed and passed alcohol field tests. He refused to provide samples of body fluids. A small quantity of marihuana residue and a pipe were found in the petitioner’s car a few days following the fatal collision. The petitioner stated to the standing committee that following his mother’s death in September, 1983, he “began to use alcohol and drugs,” and that “[i]n retrospect, it was a severe problem that only intensified the depressed state I was in.” Abraham L. Halpern, a consulting psychiatrist who testified in the petitioner’s behalf, stated that at the time of the automobile accident in May, 1984, “[t]his man was using drugs not prescribed by his physician. He was using alcohol, not constantly, but frequently enough to make this a significant problem.”

       Examination of the record discloses that Giulietti did not participate in the evidentary proceedings conducted by the standing committee. He first appeared in opposition to the petitioner’s application at the hearing before the three judge panel that considered the standing committee’s recommendation.

       While our analysis describes only the most objective evidence submitted to the standing committee on the question of substance abuse, the record discloses sixteen character references, letters and the testimony of eighteen witnesses who spoke in favor of readmission, many of whom corroborated Palermo’s conclusion.

       Borden’s report of January 5,1987, stated: “I treated Anthony Pagano from May of 1984 through September 11, 1986, at which point his treatment was terminated as no longer necessary. The basic issues stemmed from problems of anticipatory grief and grief/depression, relating to his mother’s long illness and death. These problems were manifested in chronic depression and marital conflicts. At not [sic] time did I find problems, from a psychiatrist [sic] point of view, that would affect or impair his ability to practice law. Sincerely, Walter A. Borden, M.D.”