author: Shea, J.

text:
    Richard H. Blaker et al. v. Planning and Zoning Commission of the Town of Fairfield et al.
    (14188)
    Peters, C. J., Shea, Callahan, Covello and F. X. Hennessy, Js.
    Argued March 21
    decision released June 4, 1991

      Matthew B. Woods, for the appellant (defendant Baker-Firestone Limited Partnership).

      John J. Darcy, for the appellee (plaintiff Edward A. Jennings).

      Christopher J. Smith, for the appellees (plaintiff Dennis R. Andrasi et al.).
   Shea, J.

The defendant Baker-Firestone Limited Partnership (Baker-Firestone) appeals from the judgment of the trial court, Dean, J., sustaining the plaintiffs’ zoning appeal, which judgment was rendered after we vacated in part an earlier judgment of the trial court, Stodolink, J., and remanded the case for further proceedings. See Blaker v. Planning & Zoning Commission, 212 Conn. 471, 562 A.2d 1093 (1989) (Blaker I). Baker-Firestone claims that the trial court, Dean, J., exceeded the scope of our remand order, and, moreover, substituted its own judgment for the judgment of the defendant planning and zoning commission of the town of Fairfield (commission), by determining that a protest petition filed by the plaintiffs was valid. We disagree with both contentions, and affirm the judgment sustaining the appeal.

The underlying facts of this case are set out fully in our earlier opinion, but we summarize them briefly. See Blaker I, supra, 473-76. Baker-Firestone applied for a zone amendment in order to build multifamily condominiums in Fairfield. The plaintiffs, fifteen local property owners, filed a protest petition with the commission on the second of three days of public hearings. After the conclusion of the public hearings, Baker-Firestone sent an ex parte letter to the commission setting forth its contention, never previously raised, that the petition did not meet the requirements of General Statutes § 8-3 (b). Thereafter, the commission at an executive session approved Baker-Firestone’s application after a four to two vote, simply noting: “[T]he staff reported that a valid protest petition was filed.” The plaintiffs appealed to the Superior Court, claiming, inter alia, that “(1) a protest petition sufficient to trigger the majority vote (two-thirds) provisions of C.G.S. § 8-3 (b) was filed; (2) the Commission failed to meet that requisite majority when it approved Baker’s application.” The court, Stodolirik, J., never explicitly decided these issues, but focused instead on the plaintiffs’ further claim that the commission improperly considered the ex parte communication submitted by Baker-Firestone after the close of public hearings. The court, in dismissing the appeal, concluded that the communication was not improper and that the plaintiffs had the burden of proving prejudice, which they had not sustained. From that judgment, on the grant of certification, the plaintiffs appealed. This court vacated the judgment in part, holding that the ex parte communication was improper and that the burden of proving lack of prejudice rested on the defendants. Blaker I, supra, 476-81.

I

In our decision in Blaker I, we, like the trial court, focused on the issue of the ex parte communication. We were aware that “the principal ground upon which the administrative appeal was based was the claim that a valid protest petition had been filed”; id., 477 n.3; because it was undisputed that “if a valid protest petition had been filed, then a four to two vote would have been insufficient in this case to approve the zoning change.” Id., 476-77; see Steiner, Inc. v. Town Plan & Zoning Commission, 149 Conn. 74, 175 A.2d 559 (1961). When a sufficient protest petition has been filed, § 8-3 (b) provides that a zone change “shall not be adopted except by a vote of two-thirds of all the members of the commission. ” (Emphasis added.) We expressly declined to rule on the validity of the petition, however, because “[t]he trial court made no finding upon the factual issue of the validity of the petition . . . [and] [a]s an appellate court, we obviously cannot resolve suoh a disputed issue.” Blaker I, supra, 480. Instead, we declared that “the factual issue of the validity of the petition was adjudicated improperly because of the court’s legal error in allocating the burden of proof on that issue to Jennings.” We held that the trial court’s conclusion, that the plaintiffs had failed to prove that the commission’s implicit rejection of the petition’s validity had been procured through the submission of improper ex parte evidence, was tainted by its erroneous allocation to Jennings of the burden of proof with respect to prejudice. Thus, while we recognized that the petition’s validity-remained the key issue in the case, we assumed, as did all parties, that the commission’s implicit rejection of its validity was based upon its consideration of the Baker-Firestone communication.

Accordingly, we ordered: “A further hearing must be held to permit the defendants to demonstrate that Baker-Firestone’s ex parte submission was not prejudicial. At that time the defendants may submit evidence to show that the ex parte communication did not prejudice Jennings, because the petition did not bear the required signatures or because of some other reason, and Jennings will have the opportunity to refute that evidence.” Id., 480. Then, after rejecting Jennings’ other claims that the commission’s approval was contrary to law, we concluded: “There is error in part, the judgment is set aside with respect to the ex parte communication and the case is remanded to the trial court for further proceedings in accordance with this opinion.” (Emphasis added.) Id., 485.

According to Baker-Firestone, the only issue on remand was the prejudicial impact of the ex parte communication. Thus, once Baker-Firestone had vindicated Judge Stodolink’s decision by demonstrating that the letter had no prejudicial effect, the judgment dismissing the appeal would be effectively reinstated. We disagree with this interpretation of our remand.

It is manifest that the central issue remaining after Judge Stodolink’s decision was the validity of the petition, for, if the petition was valid, the vote was inadequate, the approval ineffective, and the appeal’s success assured. Jennings’ purpose in challenging the ex parte communication was to remove any basis for the commission’s implicit finding that the protest petition was invalid. If the plaintiffs had never raised the issue of the ex parte communication they would still have been entitled to challenge the adequacy of the vote by asserting the validity of the petition. It is absurd to suggest that we would foreclose the plaintiffs from pursuing a major issue simply because a trial court error led them to pursue a successful appeal on a related subordinate issue. On the contrary, we invited Baker-Firestone to present evidence with respect to the petition’s validity so that the validity of the petition could be determined on its merits.

II

At the remand hearing, Baker-Firestone steadfastly refused to address the petition’s validity. Instead, it offered testimony by each living member of the commission who had voted. Each commission member testified that he had never seen, heard of, or been aware of the ex parte letter. Thus, Baker-Firestone insisted that it had adequately proved an absence of prejudice and that Judge Stodolink’s judgment should be reinstated. It stood by its interpretation of the scope of the remand order even when the trial court, Dean, J., permitted the plaintiffs to cross-examine the members of the commission with regard to their own views of the petition’s validity and their recollections of what transpired at the executive session.

Cross-examination revealed that the commission had never determined explicitly the petition’s validity. Instead, the commission had decided to take a vote on the zone change, because a sufficient vote would have made it unnecessary to consider that issue. When the vote was four to two, the commission members, believing that such a vote was adequate for approval even if the petition was valid,* approved the application and did not investigate further the issue of its validity, although they were informed two days later by the town counsel that five votes were necessary to pass the application in the face of a valid petition.

An administrative appeal “shall be confined to the record.” General Statutes § 4-183 (i); see Levinson v. Board of Chiropractic Examiners, 211 Conn. 508, 529-30, 560 A.2d 403 (1989). The only exception is that when “alleged irregularities in procedure before the agency are not shown in the record or if facts necessary to establish aggrievement are not shown in the record, proof limited thereto may be taken in the court.” General Statutes § 4-183 (i). Thus, the court was entitled to take evidence with respect to the prejudicial effect of the ex parte submission, a “procedural irregularity.” See Martone v. Lensink, 215 Conn. 49, 51-52, 574 A.2d 803 (1990). Accordingly, our remand was intended to provide the defendants with an opportunity to show that the ex parte communication had not been prejudicial with respect to the determination that the protest petition was invalid, which we assumed the commission had made on the basis of Baker-Firestone’s letter. We suggested that such lack of prejudice might be demonstrated by proving that the petition did not contain a sufficient number of signatures by property owners as required by § 8-3 (b), but also stated that “some other reason” might be shown to counteract the presumption of prejudice arising from the ex parte letter. The defendants chose to present no evidence concerning the validity of the petition, but limited their presentation to proof of another ground for lack of prejudice, the assertions of the commission members that they were not aware of the Baker-Firestone letter. Thus, they relinquished the opportunity afforded to contest the validity of the petition. They could have pursued such an attack in addition to the ground they did present.

The trial court properly recognized that “[a] substantial injustice would occur if the remand were limited to the ex parte communication in that the [plaintiffs] . . . would be barred from having their claim concerning the vote reviewed” and that “[i]t is inconceivable that the Supreme Court intended that result.” We had set aside the judgment upholding the commission’s approval of the zone change, leaving the plaintiffs’ appeal unresolved. Before a judgment disposing of the appeal could be rendered, it was essential first to resolve the central issue of the validity of the petition. Our remand “for further proceedings in accordance with this opinion” was never intended to authorize the dismissal of the appeal without a determination of that issue.

The trial court was authorized to determine the issue of the validity of the petition, provided that the evidence before it was sufficient for that purpose. In this case, it was undisputed that the only evidence before the commission upon which it could have evaluated the petition’s validity was a document prepared by the town planner, James Wendt, and Wendt’s own testimony that he and the staff believed the petition to be valid. There was no evidence in the record contradicting the subordinate facts that formed the basis of Wendt’s opinion. Without contradictory evidence in the record to support a finding of invalidity, the commission, and therefore the court, could have reached only one reasonable conclusion: that the petition was valid.

Baker-Firestone complains that the trial court in effect shifted to it the burden of proving the petition’s invalidity, in essence creating a presumption of validity in any petition purporting to qualify as a protest petition under § 8-3 (b). The plaintiffs contend that the trial court found as a fact that the commission had validated the petition, and that therefore the burden was properly upon Baker-Firestone to challenge the commission’s determination with respect to the petition’s validity. We disagree with both contentions.

The opinion of the trial court, Dean, J., may be read to suggest that the court was finding, as a fact, that the commission had actually decided the petition was valid. Such a conclusion, however, would not have adequate support in the record of the remand hearing. We construe the opinion to state, rather, that because there was no contradictory evidence in the record, the commission would have had no choice but to recognize the petition’s validity.

A protest petition is not presumptively valid. A commission may conclude either that such a petition is valid or that it is invalid. Since its conclusion that a petition is invalid is immaterial unless the commission goes on to rule in favor of the application that the petition contested, that conclusion will usually be challenged in the context of a challenge to the commission’s ruling in favor of the application. The party challenging an administrative decision always bears the burden of demonstrating that the decision was erroneous or improperly made. General Statutes § 4-183 (j); State v. Ward, 172 Conn. 163, 171, 374 A.2d 168 (1976) (presumption of accuracy in factfinding of governmental officials); Murach v. Planning & Zoning Commission, 196 Conn. 192, 205, 491 A.2d 1058 (1985) (presumption of regularity in administrative proceedings). Thus, one who appeals a favorable ruling by claiming that the petition was valid must bear the burden of proving its validity and, therefore, that the commission acted improperly because the petition was valid.

Even when one party has the burden of proof with respect to an issue, however, that party must prevail if the only evidence presented with respect to that issue is favorable to his position and if that evidence is not contradicted. One who presents no countervailing evidence bears the risk that the plaintiff’s proof will be persuasive. The commission was not required to believe Wendt any more than any factfinder is obligated to believe any expert. But it could not reasonably have rejected Wendt’s opinion and factual statements in the absence of any contradictory evidence with respect to the petition’s validity. The trial court was also entitled to infer, from Baker-Firestone’s failure at the remand hearing to produce any evidence with respect to the petition’s validity, that no evidence favorable to Baker-Firestone existed. Cf. Secondino v. New Haven Gas Co., 147 Conn. 672, 675, 165 A.2d 598 (1960).

Baker-Firestone claims that our decision denies it its day in court. It maintains that it was denied an opportunity to challenge the petition because it could not submit evidence to the executive session of the committee and because the petition was filed towards the end of the three day public hearing, too late to permit a full investigation into the sufficiency of the petition’s signatures. The record indicates, however, that the petition was filed on the second day of the public hearing, at least three weeks before the last day of the hearing, and that seven more days intervened between the public hearing and the executive session. Baker-Firestone never presented any evidence at the public hearing on the issue of the petition’s validity and never sought to reopen the hearing on that issue, although the ex parte letter indicates that it was aware that the zoning commission’s staff believed the petition to be valid. It never demanded that the parties be permitted to present evidence with respect to the petition’s validity, but took it upon itself to send an ex parte letter to the commission which was received by Wendt on the very day of the executive session. At the remand hearing, Baker-Firestone had another opportunity to present evidence demonstrating the petition’s invalidity, but, as a matter of strategy, chose not to do so. The trial court’s decision to determine the validity of the petition on the evidence before it was an appropriate interpretation of the remand order and did not deprive Baker-Firestone of its right to be heard.

The judgment is affirmed.

In this opinion the other justices concurred.

       The zoning appeal was filed by fifteen property owners, Richard H. Blaker, Edward A. Jennings, Dennis R. Andrasi, Gerard A. and Sharon Etzel, Sally P. Jennings, Karen P. Maloney, Judith A. and Robert J. Pustell, Robert L. Richards, Roberta G. and Thomas L. Springall, Charles R. Sprowl, Jr., and Gwendolyn L. and Alfred N. Nolan. The trial court, Bums, J., and, in a second order, Gerety, J., dismissed the appeals of all the plaintiffs except Edward Jennings. See Blaker v. Planning & Zoning Commission, 212 Conn. 471, 472, 562 A.2d 1093 (1989) (Blaker I). The other property owners reserved the right to appeal after Jennings’ claim was decided. When the trial court, Stodolink, J., decided against Jennings’ appeal on the merits, all parties appealed to the Supreme Court; in their appeals, the other parties contested, as well as the final decision on the merits, the earlier decisions to dismiss their zoning appeals. Id., 476. We reversed the decision with respect to Jennings’ appeal on the merits, and never reached the issue of the propriety of the court’s dismissal of the other property owners’ claims. Id. Apparently, however, counsel for all the original plaintiffs, including counsel for the dismissed property owners, participated without objection at the remand hearing, and all parties, including the dismissed property owners, have filed briefs and argued as appellees in the present appeal brought by Baker-Firestone now before this court. This time, however, the dismissed property owners have not challenged the dismissal of their zoning appeals. Because their actions were dismissed, and they do not now appeal those dismissals, their arguments on the merits of this case are legally irrelevant. In any event, their arguments are similar to those advanced by Jennings. Even had they cross appealed their dismissals, however, we would have no need to reach the issue of the propriety of the dismissals, since we are' affirming the judgment rendered by the trial court, Dean, J., which grants the dismissed property owners, as well as Jennings, all the relief they sought.

       General Statutes (Rev. to 1985) § 8-3 provides, in pertinent part: “establishment AND CHANGING OF ZONING REGULATIONS AND DISTRICTS. ENFORCEMENT OF REGULATIONS. CERTIFICATION OF BUILDING PERMITS AND CERTIFICATES OF OCCUPANCY SITE PLANS. DISTRICT FOR WATER-DEPENDENT USES, (a) Such zoning commission shall provide for the manner in which regulations under section 8-2 and the boundaries of zoning districts shall be respectively established or changed. No such regulation or boundary shall become effective or be established or changed until after a public hearing in relation thereto, held by a majority of the members of the zoning commission or a committee thereof appointed for that purpose consisting of at least five members, at which parties in interest and citizens shall have an opportunity to be heard. . . .
      “(b) Such regulations and boundaries shall be established, changed or repealed only by a majority vote of all the members of the zoning commission, except as otherwise provided in this chapter. If a protest against a proposed change is filed at or before a hearing with the zoning commission, signed by the owners of twenty per cent or more of the area of the lots included in such proposed change or of the lots within five hundred feet in all directions of the property included in the proposed change, such change shall not be adopted except by a vote of two-thirds of all the members of the commission.”

       The trial court also considered various other issues raised in the appeal, particularly those relating to the merits of the commission’s decision.

       This court also considered the issues raised concerning the merits of the zone change and affirmed the trial court’s decision as to those. Blaker I, supra, 481-85.

       One member of the commission, Martin Weiss, had died prior to the hearing.

       Prior to the remand hearing, both parties had conducted depositions of the commission members and of James Wendt, the town planner who had advised the commission that the town staff believed the petition to be valid. During the course of the depositions, the plaintiffs’ counsel realized that the commission had not rejected the petition’s validity, but had erroneously believed that a four to two vote would be adequate for approval even if the petition were valid.
      The trial court, Dean, J., reviewed the minutes of the commission’s executive session and perceived that the record did not indicate whether the petition’s validity had ever been decided. The court therefore permitted the plaintiffs’ counsel to cross-examine the commission members testifying for Baker-Firestone with respect to whether the commission had in fact admitted or rejected the petition’s validity.

       The commission had seven members, but one was absent, so that there were only six members present at the executive session. The chairman assumed that a favorable vote of two thirds of the members present (i.e., four favorable votes) would be enough even if the petition was valid under General Statutes § 8-3 (b). Instead, a favorable vote of two thirds of the members, present or not (i.e., five favorable votes), would have been required to approve the application. See Blaker I, supra, 477; Steiner, Inc. v. Town Plan & Zoning Commission, 149 Conn. 74, 175 A.2d 559 (1961).

       The plaintiffs themselves never presented any evidence to the commission. They filed a petition and then left it to the zoning staff to evaluate the petition’s basis and determine whether it was “valid” under General Statutes § 8-3 (b) so as to trigger the two-thirds vote requirement contained in that statute. Baker-Firestone appears to contend that unless petitioners file maps, certified copies of deeds and the like in support of their petition’s validity, the petition should always be rejected as invalid under § 8-3 (b). The statutes contain no such requirement, and, indeed, leave it to the local commission to set its own requirements. General Statutes § 8-3 (c).

       Public hearings were held on January 13, January 27 and February 24, 1987, and the executive session took place on March 3, 1987.


source: Caselaw Access Project

author: Glass, J.

license: Public Domain

text:
    Takis Argentinis v. Paul L. Gould et al. Paul L. Gould v. P. A. Argentinis et al.
    (14110)
    Shea, Glass, Covello, Borden and F. X. Hennessy, Js.
    Argued March 22
    decision released June 11, 1991

      Eugene E. Cederbaum, for the appellants (Paul L. Gould et al.).

      Daniel B. Glass, for the appellees (Takis Argentinis et al.).
   Glass, J.

The dispositive issue in this appeal is whether a builder’s breach of a construction contract by failure of substantial performance permits the non-breaching owner to collect damages unreduced by the outstanding balance of the contract price that the owner avoids paying by virtue of the breach. We conclude that the failure so to reduce an owner’s damages affords the owner an unconscionable recovery in excess of his actual loss suffered by reason of the breach. Accordingly, we reverse the contrary judgment of the Appellate Court only as to the amount of the judgment.

The facts are as follows. In November, 1980, the builders, Paul L. Gould and Paul L. Gould, Inc. (Gould), contracted to build a house for the owners, P. A. Takis Argentinis and his wife, Ourania Argentinis (Argentinis). Under the terms of the contract, Argentinis agreed to pay Gould a total of $344,000: $294,000 in cash as the construction progressed, and $50,000 by a promissory note secured by a purchase money mortgage.

On the date of the transfer of title in April, 1981, Argentinis was unable to move into the house because Gould had not completed various items of construction. The parties then executed a supplemental agreement adjusting the original contract price to reflect “certain legal offsets” asserted by Argentinis against the amount of the mortgage and note “by virtue of deficiencies and incompletion of construction leading to delayed occupancy.” Pursuant to the supplemental agreement, the parties reduced the total contract price by $4000 to $340,000. The parties also “annulled” the original note and Argentinis agreed to execute a substitute note and purchase money mortgage in the amount of $43,000, to be held in escrow along with a $3000 cash payment by Argentinis pending Gould's completion of certain specified items of construction. Furthermore, the parties acknowledged that the release to Gould of the $3000 payment and the substitute note and mortgage “shall constitute the full balance of monies due [to Gould] for all work, services and materials previously furnished and to be furnished

In July, 1981, Argentinis moved into the house. The escrowed cash and documents were released to Gould, leaving an unpaid balance of $43,000 under the contract, as represented by the mortgage securing the note. Some of the items of construction specified in the supplemental agreement, however, remained incomplete. Thereafter, Argentinis discovered numerous defects in the structure and substructure of the house. Argentinis demanded that Gould repair the defects. Gould refused to make repairs unless Argentinis agreed to certain terms found unacceptable by Argentinis, who refused to make payments on the mortgage. Unable to reconcile their differences, the parties resorted to the courts. Argentinis instituted the first of the two underlying actions alleging that Gould had not substantially performed the contract and seeking damages for breach of contract. Gould commenced the second underlying action to foreclose the mortgage alleging that Argentinis had defaulted in payment.

The actions were consolidated and tried before an attorney trial referee. In the breach of contract action, the referee found that Gould had breached the contract by failing to render substantial performance. The referee awarded Argentinis $73,068.75 in damages measured by the cost of repairing the construction defects. In the foreclosure action, the referee also found in favor of Argentinis on the ground that Gould’s failure of substantial performance defeated his right to recover the balance of the contract price and hence his right to foreclose the mortgage. The Superior Court accepted the referee’s report and rendered judgments thereon. Gould then appealed to the Appellate Court, which, relying in pertinent part upon Edens v. Kole Construction Co., 188 Conn. 489, 450 A.2d 1161 (1982), affirmed the judgments of the Superior Court in Argentinis v. Gould, 23 Conn. App. 9, 579 A.2d 1078 (1990).

Thereafter, we granted Gould’s petition for certification to appeal limited to the following questions: (1) “Did the Appellate Court correctly enter judgment affirming the trial court’s decision that [Argentinis] was entitled to compensatory damages in his suit for breach of construction contract and that [Argentinis was] also entitled to judgment in the foreclosure action?”; and (2) “Was the Appellate Court correct in finding justification for its judgment in Edens v. Kole Construction Co., [supra]?” Argentinis v. Gould, 216 Conn. 821, 581 A.2d 1054 (1990). Agreeing that Argentinis was entitled to compensatory damages in the breach of contract action as well as judgment in the foreclosure action, we answer the first certified question in the affirmative. Our negative answer to the second certified question, however, necessitates a reversal of the amount of the judgment in favor of Argentinis in the breach of contract action. In light of their convergence, we address both questions together.

Gould claims that the Appellate Court misapplied Edens v. Kole Construction Co., supra, thereby reaching a result that afforded Argentinis a “double recovery” and imposed an unwarranted penalty upon Gould for his conceded breach of the contract by failure of substantial performance. According to Gould, the damages awarded to Argentinis in the breach of contract action sufficiently compensated him for his injury resulting from the breach. Gould asserts that the additional forgiveness of Argentinis’ mortgage debt in the foreclosure action, notwithstanding Gould’s failure of substantial performance, impermissibly overcompensated Argentinis for that injury. To the extent that Gould claims that the sum of Argentinis’ damages in the breach of contract action should have been reduced by $43,000, the amount of the unpaid balance of the contract price as represented by the mortgage note, we agree.

In rejecting Gould’s contention that the referee should have reduced Argentinis’ damages for breach of contract by the amount of the unpaid balance of the contract price, the Appellate Court interpreted Edens as formulating a rule that such a reduction “is proper only if the contract has been substantially performed . . . Argentinis v. Gould, supra, 23 Conn. App. 14. Concluding that the referee correctly found that Gould had not substantially performed the contract, the Appellate Court held that the reduction sought by Gould properly had been refused. Id., 15. The Appellate Court further found “no double recovery for Argentinis. He had paid for the work to the extent actually completed and was owed the reasonable cost of restoring this work to the condition for which he had contracted.” Id. Insofar as Edens may be construed to sustain this reasoning or to sanction the result reached by the Appellate Court with respect to Argentinis’ damages in the breach of contract action, we conclude that Edens no longer can be considered good law.

Generally, when a builder breaches a bilateral construction contract by an unexcused failure to render substantial performance, he cannot maintain an action on the contract to recover the unpaid balance of the contract price because substantial performance, a constructive condition of the owner’s duty to pay the balance, has not been satisfied. See 2 Restatement (Second), Contracts § 237, comment (d); 3A A. Corbin, Contracts (1964) §§ 701, 710; see generally Lach v. Cahill, 138 Conn. 418, 421, 85 A.2d 481 (1951); Sheketoff v. Prevedine, 133 Conn. 389, 392-93, 51 A.2d 922 (1947). The balance of the contract price, therefore, is not “due” the builder. See 3A A. Corbin, supra, § 701. Edens remains viable inasmuch as it stands for this proposition, and the Appellate Court, relying upon Edens, properly concluded that Gould’s failure of substantial performance precluded him from prevailing in the foreclosure action. We diverge from the reasoning of the Appellate Court, however, and Edens insofar as it is consistent therewith, at the point where it was found necessarily to follow from Argentinis’ nonliability in the foreclosure action that he was entitled to collect damages in the breach of contract action exceeding the sum necessary to compensate him for his actual loss resulting from Gould’s breach.

It is axiomatic that the sum of damages awarded as compensation in a breach of contract action “should place the injured party in the same position as he would have been in had the contract been performed.” Rametta v. Stella, 214 Conn. 484, 492, 572 A.2d 978 (1990). The injured party, however, “is entitled to retain nothing in excess of that sum which compensates him for the loss of his bargain.” Vines v. Orchard Hills, Inc., 181 Conn. 501, 507, 435 A.2d 1022 (1980). Guarding against excessive compensation, the law of contract damages limits the injured party “to damages based on his actual loss caused by the breach.” 3 Restatement (Second), supra, § 347, comment (e). The concept of “actual loss” accounts for the possibility that the “breach itself” may result in “a saving of some cost that the injured party would have incurred if he had had to perform.” Id., comment (d). In such circumstances, the amount of the cost saved “will be credited in favor of the wrongdoer”; 5 A. Corbin, supra, § 1038; that is, “subtracted from the loss . . . caused by the breach in calculating [the injured party’s] damages.” 3 Restatement (Second), supra; see 11 S. Williston, Contracts (3d Ed. Jaeger) §§ 1338,1339. “It is on this ground that . . . when an owner receives a defective or incomplete building, any part of the price that is as yet unpaid is deducted from the cost of completion that is awarded to him . . . .” 5 A. Corbin, supra; see Soho v. Strolis, 148 Conn. 504, 506, 172 A.2d 609 (1961) (limiting owner’s damages for builder’s breach by default in performance to cost of completion less outstanding balance of contract price). Otherwise, the owner would be placed in a better position than full performance would have put him, thereby doubly compensating him for the injury occasioned by the breach. See generally 5 A. Corbin, supra, § 1036; see also Sabo v. Strolis, supra.

In accordance with the foregoing principles, the sum of Argentinis’ damages in the breach of contract action should have been reduced by the unpaid $43,000 balance of the contract price represented by the mortgage note. Argentinis would have had to bear the cost of the mortgage if Gould had rendered perfect and complete performance, and was relieved of it by reason of Gould’s substantial failure to perform. Gould’s failure, while preventing his success in the foreclosure action, did not warrant an award of damages to Argentinis in the breach of contract action that exceeded his actual loss by $43,000.

The judgment in the case of Argentinis v. Gould is reversed only as to the amount of the judgment, and the case is remanded to the Appellate Court with direction to remand the case to the trial court with direction to reduce the damages awarded to Argentinis by $43,000, and to award interest to Argentinis on the reduced judgment from the date of the first judgment of the trial court. The judgment in the case of Gould v. Argentinis is affirmed.

In this opinion the other justices concurred.

       In the first action, the plaintiff (P. A.) Takis Argentinis named Paul L. Gould and Paul L. Gould, Inc., as defendants. In the second action, the plaintiff Paul L. Gould named P. A. (Takis) Argentinis and Ourania Argentinis as defendants.

       Neither party contests the $73,068.85 amount found by the referee to represent Argentinis’ cost of repairing the defects in construction. We therefore accept that amount as “ ‘the reasonable cost of construction and completion in accordance with the contract . . . .’ ” Levesque v. D & M Builders, Inc., 170 Conn. 177, 181, 365 A.2d 1216 (1976).

       In Edens v. Kole Construction Co., 188 Conn. 489, 450 A.2d 1161 (1982), the owner filed a complaint alleging that the builder had breached the disputed construction contract by failing to render substantial performance, and seeking damages for the cost of repairing certain construction defects. The builder counterclaimed for foreclosure of a mechanic’s lien securing all or. part of the $25,000 unpaid balance of the $103,000 contract price. Finding that the builder had not substantially performed the contract, the trial court rendered judgment for the owner on the complaint and the counterclaim and awarded the owner $17,152.65 in damages for the cost of repairs. The builder appealed, alleging error in the trial court’s failure to render judgment in its favor on the counterclaim and to award the builder damages in the amount of the difference between the unpaid balance of the contract price and the owner’s cost of repairs. It is unclear from the opinion in Edens whether the builder claimed that, in any event, the owner was not entitled to collect damages on the complaint because the unpaid balance of the contract price exceeded the cost of repairing the construction defects. The Edens court stated: “We understand [the builder’s] claim of error to refer only to the trial court’s refusal to find that it was entitled to the $25,000 balance allegedly due on the contract and in the court’s failure to deduct the damage award from this balance.” Id., 493. If the builder had claimed that the owner was not entitled to collect damages on the complaint, he should have prevailed under the principles applied in our opinion today.

       The amount saved “is subtracted only if the saving results from the injured party not having to perform rather than from some unrelated event.” 3 Restatement (Second), Contracts § 347, comment (d).

       The drafters of the Restatement (Second) of Contracts aptly illustrate the operation of the “actual loss” concept in the context of construction contracts as follows: “A contracts to build a house for B for $100,000, but repudiates the contract after doing part of the work and having been paid $40,000. Other builders will charge B $80,000 to finish the house. B’s damages include the $80,000 cost to complete the work less the $60,000 cost avoided or $20,000, together with damages for any loss caused by the delay. . . .” 3 Restatement (Second), Contracts § 348, comment (c), illustration 2; see id., § 347, comment (e), illustration 12.

       Contrary to Gould’s assertions, Argentinis’ damage award should not also have been reduced by the sum of the interest that has accrued on the mortgage to date. The interest on the mortgage was not part of the balance of the contract price that Argentinis would have had to pay if Gould had completed performance of the contract. Indeed, it is undisputed, as Gould conceded in oral argument in this court, that the mortgage was intended solely to secure the balance that the parties then believed to be due to Gould. Since it was conclusively determined in the foreclosure action that Gould was not due that balance, Gould is not entitled to any rights under the mortgage.


text:
    State of Connecticut v. Lawrence R. Smith
    (13867)
    Peters, C. J., Callahan, Glass, Covello and Borden, Js.
    Argued April 23
    decision released June 11, 1991

      Elizabeth M. Inkster, assistant public defender, with whom, on the brief, was G. Douglas Nash, public defender, for the appellant (defendant).

      Paul J. Ferencek, assistant state’s attorney, with whom, on the brief, were JohnM. Bailey, state’s attorney, and Rosita M. Creamer, assistant state’s attorney, for the appellee (state).
   Glass, J.

After a jury trial, the defendant, Lawrence R. Smith, was convicted of one count of kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A) and (B), one count of robbery in the third degree in violation of General Statutes § 53a-136, one count of larceny in the second degree in violation of General Statutes § 53a-123 (a) (3), and one count of assault in the third degree in violation of General Statutes § 53a-61 (a) (l). The defendant was sentenced to a total effective term of thirty-five years imprisonment. This appeal followed.

In his appeal, the defendant claims that the trial court improperly: (1) sustained the state’s objection to a question asked of him by defense counsel on direct examination regarding the circumstances surrounding and his reasons for making an admittedly false statement to the police; (2) instructed the jury on “consciousness of guilt” in connection with his false statement; and (3) delivered a “two-inference” instruction to the jury. We affirm the judgment of conviction.

The jury reasonably could have found the following facts. On July 21, 1989, the defendant entered the Pump House Gallery in Bushnell Park in Hartford, where the victim worked. After speaking to two patrons of the Gallery whom he knew, the defendant left the Gallery and subsequently returned with another man. The defendant then grabbed the victim around the neck, dragged her into the bathroom and hit her in the face. Unbuckling the victim’s belt, the defendant demanded that she “get naked.” The victim, in an attempt to placate the defendant, offered the defendant her watch and earrings, which he accepted. Thereafter, the defendant left the bathroom in search of the victim’s knapsack and did not return. The victim never recovered her belongings.

I

The defendant first claims that the court violated his federal and state constitutional rights to due process, compulsory process and confrontation by sustaining the state’s objection to a question asked of him by defense counsel on direct examination regarding the circumstances surrounding and his reasons for making an admittedly false statement to the police. On direct examination, the defendant admitted that he had falsely stated that he had been at home when Detective Stanley Lucas of the Hartford police department inquired as to his whereabouts on the date of the crimes. Defense counsel thereafter elicited the following testimony from the defendant. Before making the statement to Lucas, the defendant had attended a scheduled meeting with a parole officer. While at the meeting, the defendant had been told that the police wanted to speak to him about an investigation that concerned him. Thereafter, the defendant had been transported to police headquarters and placed in a “little room” that he had not felt free to leave. Lucas had come into the room and had told the defendant that a woman had been sexually assaulted and robbed in Bushnell Park on July 21, 1989, and had inquired as to the defendant’s whereabouts on that date. The defendant had falsely stated that he had been at home because he considered Lucas to have made “crazy accusations” and he “didn’t want to be involved in those conversations.” Defense counsel then asked the defendant: “Okay, well, were you given your Miranda rights at any time?” After the defendant responded “No,” the state objected to the question as irrelevant and the court sustained the objection on that ground. The defendant did not take an exception to the court’s ruling or make a responsive offer of proof.

The defendant argues that this ruling unconstitutionally precluded him from disclosing “the rest of the details” regarding his false statement to Lucas. The defendant variously characterizes those details as exculpatory and so critical to his case that their preclusion requires a reversal of his conviction. Acknowledging his failure to preserve this claim by excepting to the court’s ruling; see Practice Book § 288; the defendant asserts that the claim is of constitutional dimension and seeks review under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), and State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989).

In State v. Golding, supra, we reformulated the guidelines for appellate review of unpreserved constitutional claims articulated in State v. Evans, supra. We held that a defendant can prevail on such a claim “only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail.” (Emphasis in original.) State v. Golding, supra, 239-40. The defendant’s argument in support of the constitutional significance of his claim under the second Golding condition overlooks his failure to satisfy the first Golding condition. Specifically, the record provides no indication of precisely what additional details would have been disclosed if not precluded by the court. It is therefore impossible to determine whether those details were so important to the defendant’s case that their preclusion, as he claims, impaired his constitutional rights. See id., 240; see also State v. Leary, 217 Conn. 404, 416-17, 587 A.2d 85 (1991). On this barren record, the defendant’s claim necessarily fails.

II

The defendant next challenges the court’s instruction on “consciousness of guilt” in connection with his false statement to Lucas. The court instructed the jury that “there is a legal principle known as consciousness of guilt. It applies when a defendant does an act which one can infer that he has attempted to avoid detection or avoid facts which would lead to his arrest or conviction. You heard the defendant testify that when asked by Detective Lucas whether he was at Bushnell Park Pump House on July 21st, 1989, that he denied being there. He testified that he denied it because he would be accused of the incident which had occurred. You may consider the denial to Detective Lucas and the explanation of it under this principle of law, consciousness of guilt.”

The defendant argues that the court’s instruction deprived him of a fair trial as guaranteed by the federal and state constitutions because the evidence at trial, in light of his general denial of involvement in the crimes, was insufficient to support an inference that his statements manifested a consciousness of guilt. The defendant concedes, however, that he failed to preserve this claim by taking an appropriate exception at the close of the court’s charge. See Practice Book § 852. Nevertheless, he seeks review of the claim under State v. Evans, supra, and State v. Golding, supra, 239-40, on the ground that the court’s instruction “unconstitutionally shifted the burden of proof from the state.” See State v. Aleksiewicz, 20 Conn. App. 643, 652, 569 A.2d 567 (1990). We are unpersuaded.

While we have recognized that a claim challenging an instruction that mandates a particular inference adverse to a defendant may sufficiently implicate constitutional rights to satisfy the second condition of State v. Golding, supra; see State v. Bunkley, 202 Conn. 629, 656, 522 A.2d 795 (1987); State v. Williams, 199 Conn. 30, 33-34, 505 A.2d 699 (1986); we cannot agree that the instruction challenged here suffers from such a defect. The instruction merely identified a permissive inference that the jury might draw from the defendant’s false statement, an item of circumstantial evidence. See State v. Thomas, 214 Conn. 118, 121, 570 A.2d 1123 (1990); see also State v. DeMatteo, 186 Conn. 696, 702, 443 A.2d 915 (1982). The defendant’s claim is thus properly viewed as evidentiary rather than constitutional in significance. Unpreserved nonconstitutional claims such as this “do not warrant special consideration simply because they bear a constitutional label.” State v. Golding, supra, 240. Since the defendant has failed to demonstrate that his claim “is of constitutional magnitude alleging the violation of a fundamental right”; id., 239; we decline to afford it further consideration.

Ill

Finally, the defendant contends that the court’s “two-inference” instruction to the jury diluted or qualified the state’s burden of proof and the presumption of innocence in violation of his federal and state constitutional rights to a fair trial. The court instructed the jury that the presumption of innocence “requires that when you consider all of the evidence and it is capable of two reasonable constructions, one of which favors innocence, it must be given the construction favoring innocence.” According to the defendant, the language of this instruction was likely to have misled the jury to view the state’s burden as something less than proof beyond a reasonable doubt. We disagree.

Recently, we held that a “two-inference” instruction nearly identical to that given here was “proper under our case law,” “servefd] to benefit the defendant” and did not diminish the state’s burden where “[t]he charge as a whole correctly instructed the jury as to the state’s burden of proof.” State v. Dyson, 217 Conn. 498, 504, 586 A.2d 610 (1991). The court in this case, as in Dyson, correctly instructed the jury on numerous occasions that the state was required to prove the defendant’s guilt beyond a reasonable doubt. Dyson, therefore, compels the conclusion that the court’s “two-inference” instruction did not impermissibly dilute the state’s burden of proof or the presumption of innocence. Moreover, we do not find the present case distinguishable from Dyson on the ground that this defendant, allegedly unlike the defendant in Dyson, submitted what he considers a “properly phrased” request to charge. While the refusal of such a request invokes our review of the entire charge given to determine whether the substance of the requested charge was covered; State v. Ortiz, 217 Conn. 648, 662, 588 A.2d 127 (1991); the “substance” claimed embodied in the defendant’s request and improperly omitted from the court’s entire charge is the requisite clarity as to burden of proof applicable to the state. The same repeated instructions on the state’s burden of proof beyond a reasonable doubt that saved the court’s “two-inference” instruction from ambiguity also conveyed this “substance” to the jury. Consequently, whether we approach the defendant’s claim as an outright challenge to the court’s “two-inference” instruction or as a failure to give a requested charge coupled therewith, the claim is equally unavailing.

The judgment is affirmed.

In this opinion the other justices concurred.

       General Statutes § 53a-92 provides in pertinent part: “(a) A person is guilty of kidnapping in the first degree when he abducts another person and when . . . (2) he restrains the person abducted with intent to (A) inflict physical injury upon him or violate or abuse him sexually; or (B) accomplish or advance the commission of a felony . . . .”

       “[General Statutes] Sec. 53a-136. robbery in the third degree: class D felony, (a) A person is guilty of robbery in the third degree when he commits robbery.”

       General Statutes § 53a-123 provides in pertinent part: “(a) A person is guilty of larceny in the second degree when he commits larceny as defined in section 53a-119 and ... (3) the property, regardless of its nature or value, is taken from the person of another . . . .”

       General Statutes § 53a-61 provides in pertinent part: “(a) A person is guilty of assault in the third degree when: (1) With intent to cause physical injury to another person, he causes such injury to such person or to a third person . . . .”

       “[Practice Book] Sec. 288. objections to evidence “Whenever an objection to the admission of evidence is made, counsel shall state the grounds upon which it is claimed or upon which objection is made, succinctly and in such form as he desires it to go upon the record, before any discussion or argument is had. Argument upon such objection shall not be made by either party unless the court requests it and, if made, must be brief and to the point. An exception to the ruling must be taken in order to make it a ground of appeal.”

       In State v. Dyson, 217 Conn. 498, 503, 586 A.2d 610 (1991), the court gave the following “two-inference” instruction: “The presumption of innocence also requires that when you consider all of the evidence—and it is capable of two reasonable interpretations, one of which is consistent with innocence, you must adopt the interpretation of innocence.”

       The defendant requested that the jury be instructed that “the law does not require absolute certainty to authorize a conviction. What it does require is that the guilt be established, as charged, beyond a reasonable doubt, which is one founded upon the evidence. It is proof wholly consistent with the defendant’s guilt and inconsistent with any other rational conclusion. If, upon any reasonable hypothesis, the evidence warrants a construction favorable to the accused, he is entitled to it and must be given the benefit of it by you, his triers. State v. Ryerson, 201 Conn. 333 [342-43 n.2, 514 A.2d 337 (1986)].” The defendant indicates that the defendant in State v. Dyson, 217 Conn. 498, 503-504, 586 A.2d 610 (1991), requested the following instruction: “If a fact in evidence is capable of two reasonable constructions, one consistent with innocence and the other with guilt, you must give it the construction that favors innocence.”


author: F. X. Hennessy, J.

text:
    Light Rigging Company et al. v. Department of Public Utility Control et al.
    (14200)
    Peters, C. J., Callahan, Glass, Borden and F. X. Hennessy, Js.
    Argued March 19
    decision released June 11, 1991

      Gerald A. Joseloff, for the appellants (plaintiffs).

      Roberts. Golden, Jr., assistant attorney general, with whom, on the brief, were Clarine Nardi Riddle, then attorney general, and Phyllis E. Lemell, assistant attorney general, for the appellee (named defendant).

      Frederick W. Odell, for the appellee (defendant John Balkun III).
   F. X. Hennessy, J.

The sole issue in this consolidated appeal is whether the plaintiffs have standing to appeal two decisions of the defendant department of public utility control (DPUC) granting a certificate of public convenience and necessity (certificate) to the defendant John Balkun III doing business as Jack’s Rigging and Machinery Sales (Balkun). The plaintiffs, Light Rigging Company, J. R. Christoni, Inc., Walker Crane and Rigging Corporation, Northeast Riggers, Inc., and Paul J. Buccheri Company (plaintiffs), who hold certificates similar to that granted to Balkun, appealed the DPUC’s decisions to the Superior Court. The court, finding that the plaintiffs were not aggrieved, rendered judgments dismissing the appeals. From those judgments the plaintiffs appealed to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023. We reverse the trial court’s judgment.

The relevant facts are as follows. On January 31, 1986, Balkun filed an application with the DPUC seeking motor carrier authorization, as required by General Statutes (Rev. to 1985) § 16-283, to transport small machinery and accessories, new and used, over irregular routes between all points in Connecticut. On August 22,1986, the DPUC granted the plaintiffs’ petition.for party status to protest Balkun’s application.

On August 28, 1986, and September 5, 1986, the DPUC held public hearings on Balkun’s application, as required by General Statutes (Rev. to 1985) § 16-284, at which time Balkun and the plaintiffs were heard. On December 10, 1986, the DPUC mailed its proposed decision to Balkun and the plaintiffs. The plaintiffs filed written exceptions to the proposed decision with the DPUC on December 22,1986. On January 6,1987, the DPUC issued its final decision granting Balkun’s application and issuing him a certificate.

Following the plaintiffs’ appeal of the DPUC’s January 6, 1987 decision to the Superior Court, but prior to a hearing on the appeal, the DPUC, on its own motion pursuant to General Statutes § 16-9, reopened the docket on Balkun’s application to allow the plaintiffs an opportunity to present written briefs and oral argument on the proposed decision of December, 1986. On October 13,1987, the plaintiffs appeared before the DPUC, under protest, to present oral argument. On November 3,1987, the DPUC again approved Balkun’s application, and the plaintiffs filed a second appeal with the Superior Court. The plaintiffs’ two appeals were consolidated by order of the court, Allen, J., on May 16, 1988. The DPUC filed motions to dismiss the plaintiffs’ appeals for lack of subject matter jurisdiction on the ground that the plaintiffs had failed to plead and prove sufficient facts to support a finding of aggrievement, in accordance with General Statutes (Rev. to 1987) § 4-183.

Although the plaintiffs have briefed eight issues, the sole issue that we need to consider is whether the trial court properly dismissed the plaintiffs’ appeal for lack of jurisdiction. Issues two through eight reach the merits of the DPUC’s decision. The trial court, however, was bound to dismiss the case upon finding that it had no jurisdiction; Kinney v. State, 213 Conn. 54, 58, 566 A.2d 670 (1989); and therefore never addressed the merits of the plaintiffs’ appeal. Thus issues two through eight are not properly before us. See Hartford Federal Savings & Loan Assn. v. Tucker, 181 Conn. 607, 608-609, 436 A.2d 1259 (1980).

Pleading and proof of aggrievement are prerequisites to a trial court’s jurisdiction over the subject matter of an administrative appeal. Bakelaar v. West Haven, 193 Conn. 59, 65, 475 A.2d 283 (1984). “It is [therefore] fundamental that, in order to have standing to bring an administrative appeal, a person must be aggrieved.” Connecticut Business & Industry Assn., Inc. v. Commission on Hospitals & Health Care, 214 Conn. 726, 729, 573 A.2d 736 (1990); Beckish v. Manafort, 175 Conn. 415, 419, 399 A.2d 1274 (1978). “ ‘Standing (however] is not a technical rule intended to keep aggrieved parties out of court; nor is it a test of substantive rights. Rather it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented. See, e.g., Baker v. Carr, 369 U.S. 186, 204, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962); Stern v. Stern, 165 Conn. 190, 192, 332 A.2d 78 (1973). . . .’ ” Board of Pardons v. Freedom of Information Commission, 210 Conn. 646, 648-49, 556 A.2d 1020 (1989).

Neither the DPUC nor the plaintiffs deny that aggrievement is a prerequisite for appeal, nor do they quarrel with the test for aggrievement as set out in our decision in State Medical Society v. Board of Examiners in Podiatry, 203 Conn. 295, 524 A.2d 636 (1987). In that case, we stated that “ ‘ “[t]he fundamental test for determining aggrievement encompasses a well-settled twofold determination: first, ‘the party claiming aggrievement must successfully demonstrate a specific personal and legal interest in the subject matter of the decision, as distinguished from a general interest, such as is the concern of all members of the community as a whole. Second, the party claiming aggrievement must successfully establish that the specific personal and legal interest has been specially and injuriously affected by the decision.’ . . .” ’ Cannavo Enterprises, Inc. v. Burns, 194 Conn. 43, 47, 478 A.2d 601 (1984); Bakelaar v. West Haven, [supra, 65].” State Medical Society v. Board of Examiners in Podiatry, supra, 299-300. We also stated that “ ‘[a]ggrievement is established if “there is a possibility, as distinguished from a certainty, that some legally protected interest . . . has been adversely affected.” O’Leary v. McGuinness, 140 Conn. 80, 83, 98 A.2d 660 (1953).’ Hall v. Planning Commission, 181 Conn. 442, 445, 435 A.2d 975 (1980).” State Medical Society v. Board of Examiners in Podiatry, supra, 300.

The trial court concluded, and we agree, that the plaintiffs satisfied the first prong of the aggrievement test. The plaintiffs demonstrated their specific personal and legal interest in the subject of the DPUC’s decision by alleging and providing evidence that their DPUC certificates, for the intrastate operations that they own, authorize them to provide services similar to those that Balkun’s contested certificate would authorize Balkun to provide. Neither the DPUC nor the plaintiffs challenge this conclusion.

The plaintiffs contend, however, and we agree, that the trial court incorrectly concluded that the plaintiffs had failed to satisfy the second prong of the test—to show that their specific personal and legal interests had been specially and injuriously affected.

The plaintiffs have alleged in both appeal petitions that they are aggrieved by the decision of the DPUC to grant Balkun’s certificate without any showing of a public need for the service Balkun proposes to render beyond a small circumscribed need in the greater New Britain area. In affidavits attached to their memoranda of law in opposition to the DPUC’s motions to dismiss, the plaintiffs have asserted that their motor carrier certificates are transferable, saleable and traded in commerce as assets of economic value, and that the existence of additional certificates causes a dilution and diminution in the value of each of their certificates.

In finding that the plaintiffs’ legal interest in their certificates had not been specially and injuriously affected by the DPUC’s grant of a certificate to Balkun, the trial court relied upon the principle that absent an allegation of unfair or illegal competition, “an allegation merely of competition likely to result in lost revenues is ordinarily insufficient to confer standing.” State Medical Society v. Board of Examiners in Podiatry, supra, 302. The court concluded that because the plaintiffs had not alleged or provided evidence that competition caused by the grant of authority to Balkun was unfair or illegal, they had done no more than to allege normal business competition. The court distinguished between the value of the license to operate and the value of the plaintiffs’ business operations and concluded that the plaintiffs had failed to establish that the grant of a certificate to Balkun in any way adversely affected the value of their legally protected interests in their certificates.

In State Medical Society v. Board of Examiners in Podiatry, supra, the principle relied upon by the trial court was applied to determine whether a physician’s allegations of lost revenues from competition satisfied the second prong of the aggrievement test. The physician in that case was licensed in Connecticut on his satisfaction of state requirements that do not include consideration of either the effect of his licensing upon other physicians or the need for his services.

Unlike the statutory requirements for a physician’s license, General Statutes (Rev. to 1985) § 16-286 requires the DPUC to consider “the existing motor transportation facilities and the effect upon them of granting such certifícate, [and] the public need for the service the applicant proposes to render” when determining whether to grant a certificate of public convenience and necessity.

The plaintiffs seek a judicial review of the DPUC’s determination that a need for Balkun’s certificate exists. If we conclude, as the trial court did, that the plaintiffs’ allegations of business competition and diminution in the value of their certificates are insufficient to show aggrievement, the plaintiffs are foreclosed from a judicial review of the agency’s findings as to the need for another certificate holder. We find this position untenable since the possibility exists that the alleged loss of business and diminution in value of the plaintiffs’ certificates would result from competition for which no need exists.

The plaintiffs hold certificates that enable them to operate in a regulated industry. Those certificates, like the business operations that they authorize, have an economic value that is affected by competition in the motor common carrier industry. The plaintiffs’ certificates to operate do not entitle them to be free of competition. Because § 16-286 expressly requires the DPUC to consider public need for the services to be rendered by an applicant before granting a certificate, however, existing certificate holders are entitled to be free of competition for which no need has been shown.

The question of whether the DPUC correctly concluded that public need existed for Balkun’s proposed service involves the merits of those decisions and is an issue on which we express no opinion, for “[standing is an examination of the parties, not the merits of the action.” Manchester Environmental Coalition v. Stockton, 184 Conn. 51, 64, 441 A.2d 68 (1981). Because a possibility exists, however, that the alleged competition and the resulting diminution in value of the plaintiffs’ certificates arise from the grant of a certificate for which no public need exists, we conclude that, under this particular statutory administrative scheme, such allegations were sufficient to establish that there is a possibility that the plaintiffs’ specific personal and legal interests in their certificates have been specially and injuriously affected by the DPUC’s decision.

We further note that the plaintiffs were made parties to the agency proceedings pursuant to § 16-1-17 (c) of the Regulations of Connecticut State Agencies, when it was found that their legal rights, duties or privileges were substantially and specifically affected by the proceedings. Thus at the administrative level, there was a finding that the plaintiffs legal rights, duties or privileges would be affected by the agency’s decision regarding the issuance of a certificate to Balkun.

While the plaintiffs’ status as parties at the agency level does not constitute aggrievement; Bakelaar v. West Haven, supra, 66; the trial court should have closely reviewed this administrative finding because many of the elements considered by the agency in granting this status closely track the elements that the court would have to find to determine whether a party is aggrieved. We conclude that given the plaintiffs’ allegations and supporting affidavits, these plaintiffs have proved their aggrievement and are entitled to have the opportunity to challenge the merits of the DPUC’s decisions.

The judgment is reversed and the case is remanded for further proceedings according to law.

In this opinion the other justices concurred.

       The DPUC acted pursuant to General Statutes (Rev. to 1985) c. 285, §§ 16-281 through 16-308. Effective July 1,1989, responsibility for administering this chapter was transferred to the department of transportation. General Statutes c. 245c, §§ 13b-387 through 13b-414.

       Although the plaintiff Paul J. Buccheri Company was noted for the court’s record on the docketing statement filed pursuant to Practice Book § 4013 (a) (4), it is now out of business.

       “[General Statutes (Rev. to 1985)] Sec. 16-283. certificates of public convenience and necessity. No person shall operate any motor vehicle in the transportation of property for hire as a motor common carrier without first having obtained from the department of public utility control, after hearing, a certificate of public convenience and necessity to so operate.”

       “[General Statutes (Rev. to 1985)] Sec. 16-284. hearing on application for certificate. Upon the filing of an application and the payment of the fee prescribed, the department of public utility control shall, within a reasonable time, fix the time and place for a hearing thereon and shall promptly give written notice thereof to the commissioner of transportation who shall have the right to participate in such hearing, and to such parties in interest as the department deems necessary and give public notice thereof at least one week prior to such hearing.”

       “[General Statutes] Sec. 16-9. orders. All decisions, orders and authorizations of the department of public utility control shall be in writing and shall specify the reasons therefor, shall be filed and kept in the office of the department and recorded in a book kept by it for that purpose and shall be public records. Said department may, at any time, for cause shown, upon hearing had after notice to all parties in interest, rescind, reverse or alter any decision, order or authorization by it made. Written notice of all orders, decisions or authorizations issued by the department shall be given to the company or person affected thereby, by personal service upon such company or person or by registered or certified mail, as the department determines.”

       Statutory authority for the plaintiffs’ appeals is found at General Statutes (Rev. to 1987) § 16-307, which provides in pertinent part: “Any person aggrieved by any . . . decision of the department of public utility control under the provisions of this chapter may appeal therefrom in accordance with the provisions of section 4-183.”

       General Statutes (Rev. to 1987) § 4-183 provides in pertinent part: “(a) A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision may appeal to the superior court as provided in this section. The filing of a petition for reconsideration is not a prerequisite to the filing of such an appeal.”

       In issues two through eight, the plaintiffs contend that the trial court incorrectly (2) failed to find that Balkun had failed to meet his burden of proof for the issuance of a license/certificate pursuant to General Statutes (Rev. to 1985) § 16-283 et seq., including his failure to prove public need pursuant to General Statutes (Rev. to 1985) § 16-286; (3) failed to find that the supporting witnesses and supporting evidence submitted by Balkun only proved public need for transportation services to and from a single point in Connecticut; (4) failed to find that the DPUC did not properly comply with the requirements of General Statutes (Rev. to 1985) § 4-179; (5) failed to find that the DPUC acted in an arbitrary and capricious manner and in abuse of its discretion in not complying with General Statutes § 16-9 and by not rescinding or suspending the first final decision before proceeding with the opening of the original application; (6) failed to comply with the written stipulation of the parties set forth in a motion to consolidate; (7) failed to find that the DPUC had erred in granting a license/certificate to Balkan despite the lack of safety to the public using the highways; and (8) failed to find that the DPUC had not properly specified a headquarters location in the lieense/certificate issued to Balkan.

       Because the plaintiff physician in State Medical Society v. Board of Examiners in Podiatry, 203 Conn. 295, 524 A.2d 636 (1987), had effectively alleged that his anticipated loss of revenues resulted from illegal or unfair competition, we concluded that the second prong of the aggrievement test had been satisfied.

       “[General Statutes (Rev. to 1985)] Sec. 20-10. licensure, examination. other requirements. Except as provided in section 20-12, no person shall receive a license under the provisions of section 20-13 until he files a statement with the department of health services certifying that he: (1) (A) Is a graduate of a medical school located in the United States or Canada which is accredited by the liaison committee on medical education or (B) is a graduate of a medical school located in Mexico who has satisfied all requirements necessary for licensing as a physician in Mexico except for (i) having completed a mandatory period of social service and (ii) having acquired Mexican citizenship, and has satisfactorily completed one year of supervised clinical training in a ‘fifth pathway program’ approved by the American Medical Association at the time of his graduation from medical school and conducted by an American medical school or (C) is a graduate of a medical school, which at the time he entered was approved by the Connecticut medical examining board from a listing compiled by the World Health Organization, who has received the degree of doctor of medicine or its equivalent and has satisfied the requirements for licensing as a physician in the country in which the school exists; (2) has successfully completed not less than two years of training as a resident physician or its equivalent in a program approved by the liaison committee on graduate medical education and (3) has passed an examination prescribed by the department of health services with the advice and consent of the appropriate examining board. The Connecticut medical examining board shall annually publish a list of schools approved by said board under subparagraph (C) of subdivision (1) and shall make such list available to the public. Examinations required under this section shall be administered by the department of health services under the supervision of the appropriate examining board. Passing scores shall be established by said department with the consent of the appropriate examining board.”

       “[General Statutes (Rev. to 1985)] Sec. 16-286. considerations for granting certificate. In determining whether or not such a certificate shall be granted, the department of public utility control shall take into consideration the existing motor transportation facilities and the effect upon them of granting such certificate, the public need for the service the applicant proposes to render, the suitability of the applicant, or the suitability of the management if the applicant is a corporation, the financial responsibility of the applicant, the ability of the applicant efficiently to perform the service for which authority is requested, the condition of and effect upon the highways involved and the safety of the public using such highways. The department shall take into consideration such recommendations as to motor transportation facilities, or highways, or the effect of granting such certificate upon either of them, or the safety of the public using such highways, as the commissioner of transportation may submit to it in writing within thirty days of the conclusion of the hearing thereon. No such certificate shall be denied solely on the ground that there is an existing rail or motor service. When it appears that no motor common carrier service is being supplied over the route or routes applied for, public convenience and necessity shall be presumed to require operation of such service.”

       Section 16-1-17 of the Regulations of Connecticut State Agencies provides: “application to be designated a party
      “(a) Filing of petition. Any other person who proposes to be named or admitted as a party to any proceeding shall file a written petition to be so designated not later than five (5) days before the date of the hearing of the proceeding as a contested case.

        “(b) Contents of petition. The petition shall state the name and address of the petitioner. It shall describe the manner in which the petitioner claims to be substantially and specifically affected by the proceeding. It shall state the contention of the petitioner concerning the issue of the proceeding, the relief sought by the petitioner, and the statutory or other authority therefor, and the nature of the evidence, if any, that the petitioner intends to present in the event that the petition is granted.
      “(c) Designation as party. The commissioners shall consider all such petitions and will name or admit as a party any person whose legal rights, duties or privileges will be determined by the decision of the commissioners after a hearing, if the commissioners find such person is entitled as of right to be a party to said contested ease or that the participation of such person as a party is necessary to the proper disposition of said contested case.”