Datasets:

harvard-lil

/

cold-cases

like 11

"2001-06-27"

[ "257 Conn. 902" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nThe defendant’s petition for certification for appeal from the Appellate Court, 63 Conn. App. 476 (AC 20285), is denied.\n", "ocr": true, "opinion_id": 7847261 } ]

"2001-11-07"

[ "258 Conn. 938" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nThe plaintiffs’ petition for certification for appeal from the Appellate Court, 65 Conn. App. 606 (AC 20640), is granted, limited to the following issue:\n“Did the Appellate Court properly decline to review, on the basis of an inadequate record, the plaintiffs’ claim regarding res judicata and collateral estoppel?”\n", "ocr": true, "opinion_id": 7847438 } ]

"2002-03-05"

[ "259 Conn. 563" ]

[ { "author_str": "Sullivan", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n\nOpinion\n\nSULLIVAN, C. J.\nThe plaintiffs, Maria Aposporos and Ellen Begetis, appeal from the judgment of the trial court denying their request for a permanent injunction prohibiting condemnation proceedings by the defendants, the urban redevelopment commission of the city of Stamford (commission) and the city of Stamford (city). On appeal, the plaintiffs claim that the trial court improperly: (1) concluded that the defendants had complied with the time requirements of General Statutes § 8-128; (2) concluded that the defendants had complied with the conditions imposed by the local legislative body in authorizing the condemnation of the plaintiffs’ property; (3) declined to review the plaintiffs’ claim that the condemnation was invalid in the absence of sufficient findings of blighted conditions; and (4) concluded that a court order was sufficient to extend the defendants’ authority to proceed with the condemnation after the expiration of the deadline set by the local legislative body. We agree with the plaintiffs’ third claim and conclude that the defendants were required to establish that the plaintiffs’ property was in a redevelopment area before amending the redevelopment plan to provide for acquisition of the property. We further conclude that their failure to do so rendered the condemnation proceedings invalid. Accordingly, we need not consider the remaining claims.\nThe record reveals the following relevant facts and procedural history. In March, 1963, the city’s board of representatives (board) approved an urban renewal plan entitled “Urban Renewal Plan for the Southeast Quadrant (Extended) Urban Renewal Project” (1963 plan) pursuant to General Statutes § 8-124 et seq., the Connecticut redevelopment act (act). In 1977, the plain*566tiffs jointly acquired the property located at 62 West Park Place in Stamford (property). Since that time, they have operated a diner, known as Curley’s Diner, on the property. At the time that the plaintiffs acquired the property, it was in the area of the city affected by the plan, but it was not identified in the plan as a property to be acquired.\nIn the mid-1980s, merchants located in the area of Stamford subject to the plan became concerned about the effect that the construction of a mall in another part of the city would have on their businesses. In response to those concerns, the then mayor of Stamford, Thom Serrani, appointed a citizens committee to explore ways to revitalize the area. In addition, the commission and the board’s urban redevelopment committee were asked to recommend new redevelopment goals. The commission hired an urban design development firm to conduct a study of the issue. The firm ultimately recommended that the defendants acquire four properties in addition to those already acquired pursuant to the plan, including the property owned by the plaintiffs.\nOn the basis of the design firm’s recommendations, the commission developed a plan for the construction of housing, including affordable housing, and retail stores in the redevelopment area. The commission also proposed amendments to the 1963 plan to authorize, among other things, the acquisition of the four properties. Public hearings were held on the amendments, after which the commission submitted the amendments to the board for approval. The board, by resolution number 1819 (1988 resolution), approved the amendments on March 7, 1988. The resolution directed the commission to “take all steps necessary to carry out the Urban Renewal Plan, as so amended, in an expeditious and timely manner . . . .’’It also provided that “no real property acquisitions as set forth in the Pro*567posed Amendments shall be undertaken until such time as this Board approves a Land Disposition Agreement for Re-use parcels 16A, 16B, 19 and 19B.” The plaintiffs’ property is located in block 9, lot 24, of reuse parcel 19B. The resolution also required the commission “to negotiate a Land Disposition Agreement that optimizes the affordable housing component attendant to the development of the combination of Re-use parcels 16A, 16B, 19 and 19B.”\nFollowing the adoption of the 1988 resolution, the commission solicited developers by placing advertisements in national trade journals. The commission received approximately twenty responses, from which it selected four developers to submit proposals. Ultimately, it selected the Lincoln Properties proposal for the construction of a sixteen story tower on the property and the parties negotiated a land disposition agreement. Because of a downturn in the real estate market, however, the parties were unable to obtain financing for the development, and the deal fell through.\nShortly before the 1963 plan, as amended, was due to expire, the board, on October 5, 1992, adopted a resolution extending the plan to March 4, 2000. In 1996, when the real estate market began to recover, the commission issued another request for proposals. Three developers submitted proposals, from which the commission selected Corcoran Jennison/Berkeley Partners, Inc. (Corcoran Jennison). The commission drafted a land disposition agreement (draft agreement) incorporating the proposal and submitted it to the board for approval. Various members of the board expressed concerns about certain provisions of the draft agreement and requested that the commission renegotiate those provisions. The commission negotiated modifications to the agreement and submitted them to members of the board’s urban renewal committee at a meeting on October 22,1997. At a November 5,1997 board meeting, *568committee chairman Alice Fortunato reported to the board that the committee had approved the agreement as modified.\nOn November 17, 1997, the board passed resolution number CA1197 (1997 resolution). The resolution was entitled “RESOLUTION NO. CA1197 CONCERNING APPROVAL OFA CONTRACT FOR THE SALE OFLAND IN THE SOUTHEAST QUADRANT (EXTENDED) URBAN RENEWAL PROJECT FOR PRIVATE REDEVELOPMENT TO CORCORAN JENNISON/BERKELEY PARTNERS, INC.,” and referred to the land disposition agreement entitled “Contract for Sale of Land for Private Redevelopment Reuse Parcels 16A, 16B, 19 and 19B” that had been approved by the commission on August 18, 1997. On June 15, 1998, the mayor executed a contract with Park Square West LLC, a fully owned subsidiary of Corcoran Jennison. The contract included the modifications that had been negotiated by the commission and approved by the board’s urban renewal committee.\nDuring the year following the approval of the 1997 resolution, the commission developed construction plans and obtained financing for the construction. In November, 1998, construction of phase I of the project began. In November, 1999, the commission began the process of acquiring certain property, including the plaintiffs’ property, which was required for phase II of the project. Specifically, the commission sought proposals for an appraisal report, selected an appraiser and met with property owners and their attorneys to discuss the appraisals. On December 20, 1999, the commission filed a statement of compensation for the plaintiffs’ property in the amount of $233,000.\nThe plaintiffs filed this action against the commission on December 28,1999, seeking a temporary restraining order preventing the commission from condemning the *569property, temporary and permanent injunctive relief preventing the commission from condemning the property, a declaratory ruling that the taking of the property was unconstitutional, a declaratory ruling that the actions taken by the commission were illegal, arbitrary and exceeded the scope of its condemnation authority, and reasonable attorney’s fees pursuant to General Statutes § 48-17a. The trial court immediately granted an ex parte temporary restraining order.\nOn January 12, 2000, the city filed a motion to intervene in the action, which the trial court granted on January 24, 2000. On February 25,2000, the commission moved for a stay of the March 4, 2000 expiration of the plan. The trial court granted the motion on March 3, 2000. On March 6,2000, the board approved a resolution extending the plan’s expiration date to July 5, 2000.\nA trial on the plaintiffs’ claim for temporary and permanent injunctive relief was held on June 8 and 9, 2000. On October 31, 2000, the trial court rendered judgment denying the plaintiffs’ claim for an injunction against the condemnation proceedings. The plaintiffs then filed this appeal in the Appellate Court. Thereafter, this court transferred the appeal to itself pursuant to Practice Book § 65-1 and General Statutes § 51-199 (c).\nOn appeal, the plaintiffs make four claims. First, they claim that the trial court improperly concluded that the defendants had complied with the time requirements of § 8-128.1 Specifically, they claim that the defendants *570did not condemn their property within a “reasonable time” from the adoption of the 1988 resolution and that the 1997 resolution did not specify the time within which the property was to be acquired. Second, they claim that the trial court improperly found that the defendants had complied with the board’s conditions, namely, that: (1) they enter into an authorized land disposition agreement before acquiring the property, because the modified land disposition agreement executed by the city was not the same agreement that was authorized in the 1997 resolution; (2) the commission implement the plan “in an expeditious and timely manner”; and (3) the defendants negotiate aland disposition agreement that “optimizes” the affordable housing in the development. Third, they claim that the trial court improperly declined to review their claim that the condemnation was invalid in the absence of a renewed finding of blight. Fourth, they claim that the trial court improperly concluded that it had authority to extend the deadline for expiration of the redevelopment plan by court order.\nWe address only the plaintiffs’ third claim because it is dispositive of this case.2 We begin by setting forth *571forth the standard of review pertaining to a trial court’s ruling on a request for an injunction. “A party seeking injunctive relief has the burden of alleging and proving irreparable harm and lack of an adequate remedy at law. ... A prayer for injunctive relief is addressed to the sound discretion of the court and the court’s ruling can be reviewed only for the purpose of determining whether the decision was based on an erroneous statement of law or an abuse of discretion.” (Citations omitted; internal quotation marks omitted.) Walton v. New Hartford, 223 Conn. 155, 165, 612 A.2d 1153 (1992).\nUnder the act, “a redevelopment area is defined as one ‘which is deteriorated, [deteriorating] substandard or detrimental to the safety, health, morals or welfare of the community.’ [General Statutes § 8-125 (b).] It is with reference to such an area that a local redevelopment agency is authorized to prepare a plan for redevelopment and, in the execution of the plan, take private property by condemnation. . . . Private property taken for the purpose of eradicating the conditions which obtain in such areas is taken for a public use.” (Citations omitted.) Gohld Realty Co. v. Hartford, 141 Conn. 135, 142-43, 104 A.2d 365 (1954).\n“The determination of what property is necessary to be taken in any given case in order to effectuate the public purpose is, under our constitution, a matter for the exercise of the legislative power. When the legislature delegates the making of that determination to another agency, the decision of that agency is conclu*572sive; it is open to judicial review only to discover if it was unreasonable or in bad faith or was an abuse of the power conferred.” Id., 146.\n“[A] redevelopment area [is] . . . expressly permitted to ‘include structures not in themselves substandard or insanitary which are found to be essential to complete an adequate unit of development, provided that the redevelopment area is deteriorated, [deteriorating] substandard or detrimental.’ [General Statutes § 8-125 (b).]” Pet Car Products, Inc. v. Barnett, 150 Conn. 42, 51, 184 A.2d 797 (1962). “In the determination whether property which is not substandard is essential to the plan of redevelopment, it is the condition obtaining as to the entire area and not as to individual properties which is determinative.” (Internal quotation marks omitted.) Id.\nGeneral Statutes § 8-1273 provides in relevant part that “[b]efore approving any redevelopment plan, the *573redevelopment agency shall hold a public hearing thereon, notice of which shall be published at least twice in a newspaper of general circulation in the municipality, the first publication of notice to be not less than two weeks before the date set for the hearing. The redevelopment agency may approve any such redevelopment plan if, following such hearing, it finds that: (a) The area in which the proposed redevelopment is to be located is a redevelopment area ...”\n“The authority to condemn is to be strictly construed in favor of the owner and against the condemnor, and the prescribed method of taking must be strictly pursued.” Simmons v. State, 160 Conn. 492, 500, 280 A.2d 351 (1971). “The rule applicable to the corporate authorities of municipal bodies is that when the mode in which their power is to be exercised is prescribed, that mode must be followed.” Sheehan v. Altschuler, 148 Conn. 517, 523-24, 172 A.2d 897 (1961). When essential steps are not taken as required by the statute for the adoption of a redevelopment plan, the purported plan, as well as any attempted approval of it and any action taken under it, are invalid. Id., 524.\nThe plaintiffs do not dispute that a valid finding of blight was made in 1963 when the redevelopment plan was adopted, but they argue that that finding is now *574stale and does not relate to the redevelopment area identified for acquisition in the 1988 amendment that includes their property. Accordingly, they argue that the defendants were acting outside the scope of their authority in amending the plan to provide for acquisition of the property. Indeed, in its memorandum of decision, the trial court observed that “ [d] eterminations that were made forty, twenty, and even twelve years ago seriously undermine confidence in making rehable condemnation decisions. Did the Board have substantial evidence of the most recent vintage when it came to the blight determination so as to conduct a full hearing and render an honest, reasonable and fair judgment as to Curley’s Diner?” The court concluded, nevertheless, that “a reasonable inference can be made based upon the extensions of time to complete the current plan that the point of urban blight was recently considered. If new factual findings regarding blight are needed, it is within the Board’s discretion, not that of the court.” Thus, it is not clear whether the trial court determined that a renewed finding of bhght was implicit in the 1988 and 1997 resolutions or that the commission was entitled to rely on the 1963 finding.4 In either case, however, we conclude that the finding was insufficient to validate the condemnation of the plaintiffs’ property.\nThis court previously has not considered the effect of a prolonged lapse of time after an initial finding *575of blight on the scope of a redevelopment agency’s authority to act pursuant to a redevelopment plan. The Supreme Court of Appeals for West Virginia, however, considered this issue in Charleston Urban Renewal v. Courtland Co., 203 W. Va. 528, 509 S.E.2d 569 (1998). The Charleston city council had declared on September 4, 1984, that an area of the city, in which the property of the condemnee was located, was a “ ‘slum and blighted’ ” area. Id., 530-31. One year later, the city and its urban redevelopment agency adopted an urban renewal plan providing for the acquisition of that property. Id., 531. The urban redevelopment agency did not formally authorize acquisition of the property, however, until May 8, 1996. Id. Condemnation proceedings were initiated on March 30, 1997. Id. The condemnee challenged the condemnation proceedings, claiming that the 1984 findings were outdated and, therefore, that (1) the proceedings were unconstitutional because acquisition of the property no longer served a “ ‘public use’ and (2) the eminent domain proceeding was ultra vires because the statutory prerequisites of blight or slum conditions were no longer present. Id., 534.\nThe court noted that the condemnee was not challenging the validity of the initial determination of blight and slum conditions, but was asking the court to make a factual determination that those conditions no longer existed. Id., 535. The court concluded that a request “to make such a determination de novo, as opposed to asking a court to review a city council or authority determination under an appropriate standard of review, raises substantial issues of exhaustion of remedies, separation of powers, and similar concerns.” Id. The court also noted that “the viability of an incremental, multiyear, integrated plan for the overall redevelopment of a slum or blighted area would be fatally compromised if challenges to the continued need for and legitimacy of the plan based on allegedly changed circumstances *576were allowed as defenses to a condemnation petition— each time an urban renewal authority seeks to acquire property to accomplish the purposes of the plan. We are not directed to nor have we found any cases or statutes suggesting that such challenges are, have been, or should be allowed.” Id. The court concluded that “absent extraordinary circumstances, the authority of an urban renewal authority acting under the provisions of [the relevant statutes] to implement an approved and ongoing redevelopment plan by using the power of eminent domain . . . may not be challenged during the period of the plan simply on the basis that the slum or blighted conditions which provided the initial basis for the adoption of the plan no longer exist.” Id.\nThe court in Batmasian v. Boca Raton Community Redevelopment Agency, 580 So. 2d 199 (Fla. App. 1991), also considered the issue before us in this case. It concluded that “[a] logical consequence of the implementation of a redevelopment plan in any particular area is that some conditions of blight which once existed will be eliminated. Therefore, it is unreasonable to expect that the [redevelopment agency] demonstrate the existence of the same level of blight [at the time eminent domain proceedings are initiated] that was present when the redevelopment plan was initially adopted [seven years earlier].” Id., 201.\nWe agree with the West Virginia and Florida courts, and with the defendants, that it would be illogical and unfair to require a redevelopment agency to determine that the level of blight that existed at the time that a redevelopment plan was adopted existed at each stage of the implementation of the plan. We cannot conclude, however, that a redevelopment agency may make an initial finding of blight and rely on that finding indefinitely to amend and extend a redevelopment plan to respond to conditions that did not exist, or to accomplish objectives that were not contemplated, at the time *577that the original plan was adopted. To do so would confer on redevelopment agencies an unrestricted and unreviewable power to condemn properties for purposes not authorized by the enabling statute and to convert redevelopment areas into their peipetual fiefdoms. For the same reason, a renewed finding of blight cannot be implicit in an amendment to a redevelopment plan approved decades after the original plan was adopted that addresses conditions and seeks to achieve objectives that were not contemplated in that plan. Such an amendment effectively constitutes, and should be subject to the same procedural requirements as, a new redevelopment plan.\nIn this case, unlike the condemnees in Batmasian v. Boca Raton Community Redevelopment Agency, supra, 580 So. 2d 199, and Charleston Urban Renewals. Courtland Co., supra, 203 W. Va. 528, the plaintiffs are not seeking a factual determination that blighted conditions no longer exist in order to prevent the completion of a redevelopment plan. Rather, they claim: (1) that the initial finding of blight does not relate to the redevelopment area identified for acquisition in the 1988 amendment that includes their property or to the proposed use of that property under the amended redevelopment plan; and (2) that, in the absence of a finding relating to that area, the defendants had no statutory authority to condemn the property. We agree.\nFirst, we note that the record in this case does not establish the existence of any “incremental, multi-year, integrated plan for the overall redevelopment of a slum or blighted area”; Charleston Urban Renewal v. Courtland Co., supra, 203 W. Va. 535; that included the acquisition of the plaintiffs’ property. The property was not targeted for acquisition by the plan until the adoption of the 1988 amendments, twenty-five years after the adoption of the original plan and at a time when, as the defendants concede and, indeed, the amendment *578itself acknowledges, the blight eradication objectives of the original plan largely had been achieved.5 Second, that amendment was a response to a discrete economic condition that did not exist at the time that the 1963 plan was adopted, namely, the construction of a mall in another area of the city, and had distinct objectives.6 Accordingly, we conclude that the 1988 amendments did not relate to the original finding of blight but constituted, in effect, a new redevelopment plan.\nWe also conclude that this case is distinguishable from Fishman v. Stamford, 159 Conn. 116, 119-20, 267 A.2d 443, cert. denied, 399 U.S. 905, 90 S. Ct. 2197, 26 L. Ed. 2d 560 (1970), in which this court concluded that the adoption of a modification to a redevelopment plan—indeed, the same plan that is under consideration in this case—to provide for the acquisition of property that was not targeted for acquisition under the original plan did not constitute the adoption of a new plan subject to the procedural requirements of § 8-127. In that case, the modification was adopted only three years after the original plan, was intended to alleviate the same conditions as the original plan and had the same objectives as the original plan, with only a change in scale. Under those circumstances, this court concluded *579that compliance with the requirements of General Statutes § 8-136 pertaining to modifications of redevelopment plans was all that was required. Under that statute, any modification that “will substantially change the redevelopment plan as previously approved by the legislative body . . . must similarly be approved by the legislative body.” If we were to construe that statute to apply to any change in a redevelopment plan, however, no matter how belated, substantial or unrelated to the original plan, then, after an initial finding of blight, the eminent domain power of a redevelopment agency effectively would be coextensive with the state’s. Even after all of the objectives of the original plan had been achieved, the agency could continue to amend and extend the plan to achieve public purposes unrelated to the eradication of blight, subject only to the approval of the local legislative body.\nAccordingly, we conclude that the trial court improperly determined that it was within the defendants’ discretion not to make a renewed finding of blight. We emphasize that, under the redevelopment act, it is only with reference to a redevelopment area, i.e., a blighted area, “that a local redevelopment agency is authorized to prepare a plan for redevelopment and, in the execution of the plan, take private property by condemnation.” Gohld, Realty Co. v. Hartford, supra, 141 Conn. 142-43. The legislature has mandated that before a redevelopment agency may adopt a redevelopment plan, it must hold a public hearing pursuant to § 8-127 and determine that the area in which the proposed redevelopment is to be located is a redevelopment area, as defined by § 8-125 (b). Those procedures are designed to allow interested parties to present evidence and arguments concerning the existence of blight so that the agency can make an informed and accurate finding. They also ensure that there is an adequate record for judicial review. Because the defendants failed to comply with the requirements of § 8-127, the redevelopment *580agency had no statutory authority to adopt the 1988 amendment that, we have concluded, constituted a new redevelopment plan, and the condemnation proceedings against the plaintiffs’ property were invalid. See Sheehan v. Altschuler, supra, 148 Conn. 523-24.\nThe commission argues, however, that to require a renewed finding of blight under the circumstances of this case will “derail” urban renewal projects by depriving redevelopment agencies of the “authority to complete the redevelopment project as planned.” We have two responses to that argument. First, our decision today does not require a redevelopment agency to renew a finding of blight if it is merely completing a redevelopment project as initially planned. Rather, the requirement for a renewed finding exists only when the agency, long after the original plan was adopted and at a time when the objectives of that plan have been largely achieved, has amended the original plan to address conditions and achieve objectives that did not exist at the time that the original plan was adopted. Second, to avoid being deprived of authority to address new conditions and achieve new objectives, the agency need only comply with the procedural requirements of § 8-127. Admittedly, one outcome of such proceedings could be a determination by the agency that there are no blighted conditions and, therefore, that it has no authority to proceed. The possibility of such an outcome, however, is precisely what the legislature contemplated in requiring the agency to hold such a hearing.\nThe judgment is reversed and the case is remanded to the trial court with direction to render judgment granting the plaintiffs’ claim for a permanent injunction against the condemnation of their property pursuant to the 1963 redevelopment plan as amended.\nIn this opinion the other justices concurred.\n\n General Statutes § 8-128 provides: “Within a reasonable time after its approval of the redevelopment plan as hereinbefore provided, the redevelopment agency may proceed with the acquisition or rental of real property by purchase, lease, exchange or gift.The redevelopment agency may acquire real property by eminent domain with the approval of the legislative body of the municipality and in accordance with the provisions of sections 8-129 to 8-133, inclusive, and this section. The legislative body in its approval of aproject under section 8-127 shall specify the time within which real property is to be acquired. The time for acquisition may be extended by the legislative body in accordance with section 48-6, upon request of the redevelopment agency, provided the owner of the real property consents to such request. *570Real property may be acquired previous to the adoption or approval of the project area redevelopment plan, provided the property acquired shall be located within an area designated on the general plan as an appropriate redevelopment area or within an area whose boundaries are defined by the planning commission as an appropriate area for a redevelopment project, and provided such acquisition shall be authorized by the legislative body. The redevelopment agency may clear, repair, operate or insure such property while it is in its possession or make site improvements essential to preparation for its use in accordance with the redevelopment plan.”\n\n\n We note, preliminarily, that the defendants assert that this claim was not properly preserved because it was not raised by the plaintiffs until they filed their posttrial brief in the trial court. We disagree. In their posttrial brief, the plaintiffs argued that there was no evidence that the current conditions of the property or the surrounding area met the requirements for a redevelopment area or that condemnation of the property was necessary or would serve a public purpose by eradicating blight. The defendants, in their posttrial brief, argued that because the evidence at trial showed that acquisition of the property was necessary to carry out the redevelopment *571plan, the plaintiffs’ claim that the property was not blighted, deteriorated or substandard was irrelevant. The defendants did not argue to the trial court that the claim was unpreserved. The (rial court addressed the issue in its memorandum of decision, concluding that, although “[determinations that were made forty, twenty, and even twelve years ago seriously undermine confidence in making reliable condemnation decisions . . . [t]he court has no discretion on factual findings regarding ‘blighted areas.’ ” On the basis of this record, we conclude that the issue was fairly before the trial court and was adequately preserved for review by this court.\n\n\n General Statutes § 8-127 provides: “The redevelopment agency may prepare, or cause to be prepared, a redevelopment plan and any redeveloper may submit a redevelopment plan to the redevelopment agency, and such agency shall immediately transmit such plan to the planning agency of the municipality for its study. The planning agency may make a comprehensive or general plan of the entire municipality as a guide in the more detailed and precise planning of redevelopment areas. Such plan and any modifications and extensions thereof shall show the location of proposed redevelopment areas and the general location and extent of use of land for housing, business, industry, communications and transportation, recreation, public buildings and such other public and private uses as are deemed by the planning agency essential to the purpose of redevelopment. Appropriations by the municipality of any amount necessary are authorized to enable the planning agency to make such comprehensive or general plan. The redevelopment agency shall request the written opinion of the planning agency on all redevelopment plans prior to approving such redevelopmentplans. Before approving any redevelopment plan, the redevelopment agency shall hold a public hearing thereon, notice of which shall be published at least twice in a newspaper of general circulation in the municipality, the first publication of notice to be not less than two weeks before the date set for the hearing. The redevelopment agency may approve any such redevelopment plan if, following such hearing, it finds that: (a) The area in which the proposed redevelopment is to be located is a redevelopment area; (b) the carrying out of the redevelopment plan will result in materially improving conditions *573in such area; (c) sufficient living accommodations are available within a reasonable distance of such area or are provided for in the redevelopment plan for families displaced by the proposed improvement, at prices or rentals within the financial reach of such families; and (d) the redevelopment plan is satisfactory as to site planning, relation to the comprehensive or general plan of the municipality and, except when the redevelopment agency has prepared the redevelopment plan, the construction and financial ability of the redeveloper to carry it out. No redevelopment plan for a project which consists predominantly of residential facilities shall be approved by the redevelopment agency in any municipality having a housing authority organized under the provisions of chapter 128 except with the approval of such housing authority. The approval of a redevelopment plan may be given by the legislative body or by such agency as it designates to act in its behalf.”\n\n\n We note that in its posttrial brief the commission expressly had denied that it was required to establish that the area targeted for acquisition was blighted. It argued that, because it had proven at trial that the acquisition of the plaintiffs’ property was necessary for construction of the project approved in the 1997 resolution, the issue of blight was irrelevant. In its brief to this court, the commission again argued that the plaintiffs’ property is essential to the project and that it is undisputed that the project is a public use. We conclude, however, that the fact that the plaintiffs’ property is essential for the project and the fact that the project is a public use are irrelevant if the purpose of the project was not to eradicate blight, the only public use for which the agency is authorized to acquire property.\n\n\n The introduction to the amendments states that “[a]s Stamford enters the final phase of the Urban Renewal Project, most of the goals established by our community have been achieved.” We emphasize that the fact that the goals of a redevelopment plan largely have been achieved does not automatically deprive a redevelopment agency of authority to complete the plan. The agency may not rely on the fact that the goals have not been completely achieved, however, to extend the period and scope of the plan indefinitely and to adopt new goals that were not contemplated in the original plan.\n\n\n The introduction to the amendments states that “[t]his document contains a description of Urban Renewal Plan amendments which, if approved by the Board of Representatives, will create new development goals for the section of Stamford’s Urban Renewal Project Area referred to as Blocks 8 and 9.” The introduction identified more housing in the downtown area and more nightlife and pedestrian-oriented activity as two such goals.\n\n", "ocr": true, "opinion_id": 7847500 } ]

"2002-02-06"

[ "259 Conn. 923" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nThe defendant’s petition for certification for appeal from the Appellate Court, 67 Conn. App. 533 (AC 21299), is denied.\n", "ocr": true, "opinion_id": 7847584 } ]

"2002-03-14"

[ "260 Conn. 901" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nThe petitioner Wilfredo M. Ramos’ petition for certification for appeal from the Appellate Court, 67 Conn. App. 907 (AC 21012), is denied.\n", "ocr": true, "opinion_id": 7847659 } ]

"2003-08-19"

[ "265 Conn. 423" ]

[ { "author_str": "Palmer", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n\nOpinion\n\nPALMER, J.\nThe sole issue raised by this appeal is whether the plaintiff, Fort Trumbull Conservancy, LLC, has alleged facts sufficient to establish standing to bring this action against the defendants, the city of New London (city), the New London redevelopment agency (redevelopment agency), the New London Development Corporation (corporation) and the state department of economic and community development (department), seeking to bar them from, inter alia, implementing a municipal development plan (development plan) in the Fort Trumbull area of New London. The trial court, Hon. D. Michael Hurley, judge trial referee, granted the defendants’ motions to dismiss the plaintiffs complaint for lack of standing and rendered judgment thereon after concluding that the plaintiff had failed to allege facts sufficient to demonstrate either statutory or classical aggrievement. On appeal, the plaintiff contends that the trial court improperly granted the defendants’ motions to dismiss because the allegations of the complaint are adequate to establish both statutory aggrievement under General Statutes § 22a-161 and classical aggrievement. We reject the plaintiffs *426claims and, therefore, affirm the judgment of the trial court.\nThe record reveals the following relevant facts. In May, 1998, the New London city council designated the corporation, a private, nonprofit organization,2 as the development agency for the city. Thereafter, the corporation applied to the department for financial support for a development plan for the Fort Trumbull area of New London. Among other things, the development plan called for the condemnation of property and demolition of buildings located in that area. After performing an environmental impact assessment, the department determined that the development plan could have a significant impact on the environment. The corporation therefore prepared an environmental impact evaluation in accordance with General Statutes (Rev. to 1997) § 22a-lb (b).3 The departmentmade the evaluation avall*427able for public inspection and comment4 in accordance with General Statutes (Rev. to 1997) § 22a-ld.5\nFollowing the public comment period, the department rendered a decision recommending that the proposed development plan be implemented. Thereafter, the state office of policy and management conditionally approved the environmental impact evaluation.6 In January, 2000, the city and the redevelopment agency adopted the development plan. The corporation, acting on behalf of the city, subsequently condemned and demolished certain properties located in the Fort Trumbull area.\n*428The plaintiff, a limited liability coiporation formed, among other reasons, “to preserve, conserve, maintain and protect the continuity, historic importance, environment and legal status of [the Fort Trumbull] area,” initiated this action in July, 2000, alleging numerous violations of federal, state and local law in connection with the creation, approval and implementation of the development plan.7 The plaintiff sought various legal and equitable remedies, including declaratory relief and an injunction prohibiting the defendants from implementing the plan.8\nThe defendants filed motions to dismiss,9 claiming that the plaintiff lacked standing to challenge their actions regarding the development plan. In particular, the defendants claimed that the plaintiff had failed to establish: (1) statutory aggrievement under § 22a-16 inasmuch as the complaint merely repeated the language of that statutory provision and did not set forth any facts indicating how the defendants’ activities were likely to result in “unreasonable pollution, impairment or destruction” of the state’s natural resources; General Statutes § 22a-16; and (2) classical aggrievement, inasmuch as the complaint contained insufficient allegations of any direct and specific injury. The trial court agreed with the defendants’ claims and, therefore, *429granted the motions to dismiss and rendered judgment thereon dismissing the plaintiffs complaint.10\nOn appeal,11 the plaintiff contends that the trial court improperly dismissed the complaint for lack of standing. We disagree.\n“As a preliminary matter, we address the appropriate standard of review. If a party is found to lack standing, the court is without subject matter jurisdiction to determine the cause. ... A determination regarding a trial court’s subject matter jurisdiction is a question of law. When . . . the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record. . . .\n“Subject matter jurisdiction [implicates] the authority of the court to adjudicate the type of controversy presented by the action before it. . . . [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction .... The objection of want of jurisdiction may be made at any time . . . [a]nd the court or tribunal may act on its own motion, and should do so when the lack of jurisdiction is called to its attention. . . . The requirement of subject matter jurisdic*430tion cannot be waived by any party and can be raised at any stage in the proceedings.12 . . .\n“Standing 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. . . . These two objectives are ordinarily held to have been met when a complainant makes a colorable claim of direct injury he has suffered or is likely to suffer, in an individual or representative capacity. Such a personal stake in the outcome of the controversy . . . provides the requisite assurance of concrete adverseness and diligent advocacy. . . . The requirement of directness between the injuries claimed by the plaintiff and the conduct of the defendant also is expressed, in our standing jurisprudence, by the focus on whether the plaintiff is the proper party to assert the claim at issue. . . .\n“Two broad yet distinct categories of aggrievement exist, classical and statutory. . . . Classical aggrievement requires a two part showing. First, a party must demonstrate a specific, personal and legal interest in the subject matter of the [controversy], as opposed to a general interest that all members of the community share. . . . Second, the party must also show that the [alleged conduct] has specially and injuriously affected that specific personal or legal interest. . . .\n“Statutory aggrievement exists by legislative fiat, not by judicial analysis of the particular facts of the case. In other words, in cases of statutory aggrievement, par*431ticular legislation grants standing to those who claim injury to an interest protected by that legislation. ” (Citations omitted; internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 485-87, 815 A.2d 1188 (2003). With these principles in mind, we turn to the plaintiffs claims.\nI\nThe plaintiff first claims that it has standing under § 22a-16 because its complaint sets forth sufficient facts from which to infer that the defendants’ activities created a “ ‘reasonable likelihood of unreasonable environmental harm.’ ” In support of this claim, the plaintiff refers to two allegations in its complaint: (1) that the defendants failed to follow certain procedural requirements in adopting the development plan; and (2) that the plan called for demolition without consideration of “feasible and prudent alternatives.” The plaintiff maintains that these allegations are specific enough to support its claim of environmental harm, which otherwise is alleged only in conclusory terms. We are not persuaded.\nGeneral Statutes § 22a-16 provides broadly that “any person . . . [or] corporation . . . may maintain an action . . . for declaratory and equitable relief against the state, any political subdivision thereof, any instrumentality or agency of the state or of apolitical subdivision thereof, any person, partnership, corporation, association, organization or other legal entity, acting alone, or in combination with others, for the protection of the public trust in the ah, water and other natural resources of the state from unreasonable pollution, impairment or destruction . . . .” Inasmuch as § 22a-16 affords standing to any person or corporation, the plaintiff indisputably comes within the statute’s purview. Indeed, “[t]his court . . . has recognized no restriction on the class of persons with standing to seek *432relief under § 22a-16.” Fort Trumbull Conservancy, LLC v. Alves, supra, 262 Conn. 495-96.\nOur inquiry into whether the plaintiff has standing under § 22a-16 is not complete, however. It is settled that the existence of statutory standing depends on “whether the interest sought to be protected by the [plaintiff] is arguably within the zone of interests to be protected or regulated by the statute . . . .” (Internal quotation marks omitted.) Med-Trans of Connecticut, Inc. v. Dept. of Public Health & Addiction Services, 242 Conn. 152, 160, 699 A.2d 142 (1997). Under § 22a-16, “standing ... is conferred only to protect the natural resources of the state from pollution or destruction.” Belford v. New Haven, 170 Conn. 46, 54, 364 A.2d 194 (1975). “Accordingly, all that is required to invoke the jurisdiction of the Superior Court under § 22a-16 is a colorable claim, by any person [or entity] against any person [or entity], of conduct resulting in harm to one or more of the natural resources of this state.” (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, supra, 262 Conn. 496. Although it is true, of course, that the plaintiff need not prove its case at this stage of the proceedings; see Manchester Environmental Coalition v. Stockton, 184 Conn. 51, 57, 441 A.2d 68 (1981); the plaintiff nevertheless must articulate a colorable claim of unreasonable pollution, impairment or destruction of the environment. See Fort Trumbull Conservancy, LLC s. Alves, supra, 488-89.\nThe complaint in the present case expressly challenges both the legality of the process pursuant to which the defendants adopted the development plan and the necessity of the demolition component of the plan. These allegations, however, provide no indication as to how or why the adoption and implementation of the development plan is likely to cause unreasonable harm to the environment. It is well established that, in ruling on a motion to dismiss, the trial court “must take the *433facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader.” Brookridge District Assn. v. Planning & Zoning Commission, 259 Conn. 607, 611, 793 A.2d 215 (2002). “A complaint does not sufficiently allege standing [however] by merely reciting the provisions of § 22a-16, but must set forth facts to support an inference that unreasonable pollution, impairment or destruction of a natural resource will probably result from the challenged activities unless remedial measures are taken.” Lewis v. Planning & Zoning Commission, 49 Conn. App. 684, 692, 717 A.2d 246 (1998).\nIn the present case, the allegations of the complaint do not give rise to an inference of unreasonable harm to the environment because it is not evident how the defendants’ failure to follow certain procedural requirements in adopting the development plan or to consider alternatives to the demolition of buildings in the Fort Trumbull area is likely to cause such harm. Nor is it apparent what the nature of any such harm might be. We will not speculate about how the actions of the defendants purportedly confer standing on the plaintiff under § 22a-16. See Mystic Marinelife Aquarium, Inc. v. Gill, 175 Conn. 483, 502, 400 A.2d 726 (1978) (“No pleading . . . alleges any specific conduct as to what is claimed to constitute any alleged unreasonable pollution, impairment or obstruction of any natural resource. We cannot supply such an omission.”). The plaintiff’s complaint, therefore, falls short of articulating a color-able claim of unreasonable pollution, impairment or destruction of the environment.13 Accordingly, we con-*434elude that the trial court properly determined that the plaintiff had failed to establish statutory standing under § 22a-16.\nII\nThe plaintiff also claims standing to maintain this action inasmuch as the allegations of its complaint demonstrate classical aggrievement. In support of this contention, the plaintiff claims that its members,14 who reside in the area affected by the development plan, are “imminently threatened” by the implementation of that allegedly unconstitutional and otherwise unlawful plan. We reject the plaintiffs claim of classical aggrievement.\nIn evaluating the standing of an association, we have adopted the federal test for associational standing articulated in Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333, 343, 97 S. Ct. 2434, 53 L. Ed. 2d 383 (1977). “Under that test, [a]n association has standing to bring suit on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” (Internal quotation marks omitted.) Connecti*435cut Associated Builders & Contractors v. Hartford, 251 Conn. 169, 185, 740 A.2d 813 (1999).\nAs we previously noted, the test for determining classical aggiievement requires a two part determination. “First, a party must demonstrate a specific, personal and legal interest in the subject matter of the [controversy] , as opposed to a general interest that all members of the community share. . . . Second, the party must . . . show that the [alleged conduct] has specially and injuriously affected that specific personal or legal interest.” (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, supra, 262 Conn. 486-87.\nApplying the foregoing principles, we conclude that the trial court properly determined that the plaintiff has failed to demonstrate classical aggiievement. Although the plaintiff alleges in its complaint that certain statutes are unconstitutional, both facially and as applied, and that the defendants’ actions violated, inter alia, the constitutional and statutory rights of its members, the complaint contains no allegation of any specific and direct injury that the plaintiffs members have suffered or are likely to suffer as a result of these alleged constitutional infirmities and violations. In other words, the plaintiff has failed to demonstrate how its members have been “specially and injuriously affected” by the defendants’ conduct. (Internal quotation marks omitted.) Id., 487.\nThe plaintiff claims that because the corporation, acting on behalf of the city, has eminent domain authority, the plaintiffs members are “imminently threatened by the defendants’ implementation of the [development plan]” and that, consequently, they fear specific damages. In support of this assertion, the plaintiff relies on the following allegations contained in its complaint: (1) “the [corporation] and/or [the city] threatened the use of eminent domain prior to the approval of the [development plan] by the [redevelopment agency], [the] city *436council and/or [the department]”; (2) “the [city], acting by and through the [corporation], has commenced demolition and condemnation proceedings on the basis that demolishing and taking the properties is allegedly necessary for developing, implementing and effectuating the [development plan]”; and (3) “the [corporation] . . . [has given formal] notice of [its] intent to demolish [certain] properties located in the [development plan] area and within . . . New London.”\nThe complaint, however, contains no allegation that any member of the plaintiff was “imminently threatened” by the city’s exercise of its eminent domain authority.15 In the absence of such an allegation, the plaintiff has failed to satisfy the first prong of the associational standing test, namely, that the group’s members would otherwise have standing to bring the action in their own right. Moreover, an allegation of a mere fear of “specific damages,” without more, is too vague and speculative a claim of injury for the purpose of establishing classical aggrievement. Inasmuch as the complaint contains insufficient facts from which it reasonably may be inferred that any of the plaintiffs members have suffered or are likely to suffer any direct and specific injury as a result of the implementation of the development plan, the plaintiffs claim of classical aggrievement must fail.\nWe conclude, therefore, that the plaintiff has not established standing on the basis of either classical or statutory aggrievement. Thus, the trial court properly *437granted the defendants’ motions to dismiss for lack of subject matter jurisdiction.\nThe judgment is affirmed.\nIn this opinion the other justices concurred.\n\n General Statutes § 22a-16,whichispartofthe state Environmental Protection Act of 1971, §§ 22a-14 through 22a-20, provides in relevant part: “The Attorney General, any political subdivision of the state, any instrumentality or agency of the state or of a political subdivision thereof, any person, partnership, corporation, association, organization or other legal entity may maintain *426an action in the superior court for the judicial district wherein the defendant is located, resides or conducts business, except that where the state is the defendant, such action shall be brought in the judicial district of Hartford, for declaratory and equitable relief against the state, any political subdivision thereof, any instrumentality or agency of the state or of a political subdivision thereof, any person, partnership, corporation, association, organization or other legal entity, acting alone, or in combination with others, for the protection of the public trust in the air, water and other natural resources of the state from unreasonable pollution, impairment or destruction . . . .”\n\n\n The coiporation, which was founded in 1978, has the authority to raise and borrow money, acquire and sell property and otherwise engage in activities in furtherance of the general welfare of New London.\n\n\n General Statutes (Rev. to 1997) § 22a-lb (b) provides: “Each state department, institution or agency responsible for the primary recommendation or initiation of actions which may significantly affect the environment shall in the case of each such proposed action make a detailed written evaluation of its environmental impact before deciding whether to undertake or approve such action. All such environmental impact evaluations shall be detailed statements setting forth the following: (1) A description of the proposed action; (2) the environmental consequences of the proposed action, including direct and indirect effects which might result during and subsequent to the proposed action; (3) any adverse environmental effects which cannot be avoided and irreversible and irretrievable commitments of resources should the proposal be implemented; (4) alternatives to the proposed action, including the alternative of not proceeding with the proposed action; (5) mitigation *427measures proposed to minimize environmental impacts; (6) an analysis of the short term and long term economic, social and environmental costs and benefits of the proposed action; (7) the effect of the proposed action on the use and conservation of energy resources; and (8) a description of the effects of the proposed action on sacred sites or archaeological sites of state or national importance. In the case of an action which affects existing housing, the evaluation shall also contain a detailed statement analyzing (A) housing consequences of the proposed action, including direct and indirect effects which might result during and subsequent to the proposed action by income group as defined in section 8-37aa and by race and (B) the consistency of the housing consequences with the state housing advisory plan adopted under section 8-37t. As used in this section, ‘sacred sites’ and ‘archaeological sites’ shall have the same meaning as in section 10-381.”\n\n\n The public comment period commenced on November 10, 1998, and ended on December 28, 1998.\n\n\n General Statutes (Rev. to 1997) § 22a-ld provides in relevant part: “(a) Evaluations required by sections 22a-la to 22a-lf, inclusive, and a summary thereof, including any negative findings, and environmental statements otherwise required and prepared subsequent to July 8,1975, shall be submitted for comment and review to the Council on Environmental Quality, the Department of Environmental Protection, the Connecticut Historical Commission, the Department of Economic and Community Development in the case of aproposed action that affects existing housing, and other appropriate agencies, and to the town clerk of each municipality affected thereby, and shall be made available to the public for inspection and comment at the same time. ...”\n\n\n The evaluation was approved subject to the condition that the department address certain issues relating to civil preparedness and flood plain and coastal management policies.\n\n\n In particular, the plaintiff alleged that the defendants’ actions violated the fifth and fourteenth amendments to the United States constitution and article first, §§ 1, 10 and 11, of the Connecticut constitution, as well as various state statutory and regulatory provisions, the New London city charter and the directives of the New London city council.\n\n\n We note that the plaintiff sought, and ultimately obtained, a temporary restraining order enjoining the defendants from proceeding with the development plan. That order, however, subsequently was vacated. On appeal, the plaintiff claims that that order improperly was vacated. We do not address this issue in light of our conclusion that the court properly dismissed the plaintiff’s complaint for lack of standing.\n\n\n The corporation and the department each filed a separate motion to dismiss and the city and redevelopment agency jointly filed a motion to dismiss.\n\n\n The trial court also determined, as an alternative ground for dismissing the complaint, that the plaintiff had failed to exhaust its administrative remedies. Because we conclude that the trial court properly dismissed the complaint for lack of standing, we need not address this alternative ground. We note, nevertheless, that this court recently has concluded that the state Environmental Protection Act of 1971, General Statutes §§ 22a-14 through 22a-20, “does not embody the exhaustion doctrine as a subject matter jurisdictional limit on the court’s entertainment of an action under it.” Waterbury v. Washington, 260 Conn. 506, 537, 800 A.2d 1102 (2002).\n\n\n The plaintiff appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1.\n\n\n Thus, “[t]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised.” Fink v. Golenbock, 238 Conn. 183, 199 n.13, 680 A.2d 1243 (1996).\n\n\n In Fort Trumbull Conservancy, LLC v. Alves, supra, 262 Conn. 480, a case involving, inter alia, the propriety of the issuance of permits for the demolition of the very properties at issue in the present action; see id., 482-83; we concluded that the allegations contained in the complaint filed in that case, “although somewhat vague,” were sufficient to survive a motion to dismiss for lack of standing under § 22a-16. Id., 497. In Alves, the plaintiff alleged in its complaint that, “[t]he buildings, structures and properties *434proposed for demolition, the supply of available energy resources to be consumed in the demolition process and the solid waste demolition byproducts are protectible resources within the legislative policy and intent of [the act] and [t]he demolition of the buildings, structures and properties and disposal of the debris will unnecessarily and wastefully result in added and cumulative solid waste disposal burdens on existing solid waste facilities [within the state] and/or require expenditure of transportation energy for disposal at out-of-state facilities.\" (Internal quotation marks omitted.) Id., 496-97. As we have explained, the plaintiff failed to make even such vague allegations of environmental harm in the present case.\n\n\n The plaintiff alleged in its complaint that it “is comprised of . . . residents, homeowners and/or taxpayers who reside in . . . New London . . . within, adjacent to and/or affected by [the development plan] . . . .”\n\n\n It may be that the property of one or more of the plaintiffs members is or is likely to be the subject of eminent domain proceedings arising out of the implementation of the developmentplan. The plaintiff, however, made no such allegation in its complaint. The mere fact that the corporation, acting on behalf of the city, has the power to take the property of the plaintiffs members by eminent domain, without more, is insufficient to establish the plaintiffs standing to bring an action to challenge the implementation of the development plan.\n\n", "ocr": true, "opinion_id": 7848207 } ]

"2004-05-18"

[ "269 Conn. 10" ]

[ { "author_str": "Vertefeuille", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n\nOpinion\n\nVERTEFEUILLE, J.\nThe principal issue in this appeal is whether General Statutes § 52-102b (a),1 which *13requires service of an apportionment complaint within 120 days after the return date of the original complaint, is mandatory or directory in nature. The defendants, Community Action Agency of New Haven, Inc. (Com*14munity Action), and Elizabeth Barrett, appeal from two judgments of dismissal rendered by the trial court in favor of both sets of apportionment defendants, Neuro-surgical Associates of Connecticut, P.C., and its employee, Harry P. Engel (collectively, Neurosurgical Associates), and Murphy and Lieponis, P.C., and its employee, Jonas Lieponis (collectively, Muiphy & Lie-ponis).2 The trial court, Robinson-Thomas, J., dismissed the apportionment complaint as to Neurosurgical Associates, concluding that the court lacked jurisdiction due to the defendants’ failure to serve Neurosurgical Associates within the 120 day time period mandated by § 52-102b (a).3 Acting on a separate motion, the trial court, Booth, J., dismissed the apportionment complaint as to Murphy & Lieponis, determining that the defendants’ failure to comply with the mandatory provisions of § 52-102b (a) prevented the court from exercising subject matter jurisdiction.\nOn appeal, the defendants claim that the 120 day time limitation for bringing an apportionment claim prescribed by § 52-102b (a) is directory, and therefore, the trial court, by interpreting that provision as mandatory, improperly dismissed their apportionment complaint. The defendants also claim that the trial court improperly dismissed the apportionment complaint in light of the trial court’s previous grant of an extension of time during which to bring the apportionment claim. We conclude that the 120 day time limitation contained in § 52-102b (a) is mandatory and we further determine that the ninety day extension was ineffective in extending that limitation period. We further conclude that noncompliance with § 52-102b implicates a court’s personal jurisdiction, not subject matter jurisdiction. *15Accordingly, we affirm the judgments of the trial court dismissing the apportionment complaint as to all of the apportionment defendants.\nThe following facts and procedural history guide our resolution of this appeal. In a complaint dated May 21, 2001, with a return date of June 19, 2001, the plaintiff, Stephen Lostritto,4 commenced a personal injury action against the defendants, seeking damages for injuries allegedly sustained as a result of the defendants’ negligence in a motor vehicle accident.5 On October 12,2001, the defendants, who sought to apportion liability to the plaintiffs health care providers, filed a motion requesting a ninety day extension of time within which to serve an apportionment complaint. The defendants claimed that, because the apportionment complaint would allege medical malpractice, additional time beyond the 120 days provided by § 52-102b (a) was needed to conduct a reasonable inquiry, as required by General Statutes § 52-190a (a),6 into whether a good *16faith basis existed for such a claim and to obtain the necessary good faith certificates. No objection to the motion was filed, and the trial court, Silbert, J., granted a ninety day extension on October 15, 2001. Thereafter, on January 14, 2002, the defendants served Neurosurgical Associates with a summons and complaint alleging that the apportionment defendants were hable to the plaintiff for a percentage of the claimed damages due to their alleged medical malpractice. Three days later, on January 17, 2002, the defendants served Murphy & Lieponis with the same complaint.\nOn February 4, 2002, Neurosurgical Associates filed a motion to dismiss the apportionment complaint as it pertained to it, arguing that “the court lack[ed] jurisdiction over these Apportionment Defendants because the Apportionment Complaint [was] not in compliance with the requirements of ... § 52-102b (a).” The defendants objected, arguing that the apportionment complaint was timely filed within the ninety day extension period previously granted by the trial court and, therefore, the court had jurisdiction over the action. The trial court, Robinson-Thomas, J., granted Neurosurgical Associates’ motion, ruling that, despite the ninety day extension, it did not have jurisdiction over the apportionment action because the apportionment complaint was filed more than 120 days after the return date of the original complaint as mandated by § 52-102b (a). Thereafter, the trial court rendered a partial judgment of dismissal in favor of Neurosurgical Associates.\nMurphy & Lieponis, by way of a separate motion filed on February 13, 2002, also sought to dismiss the apportionment complaint as it pertained to it. Murphy & Lieponis, like Neurosurgical Associates, claimed that the 120 day window provided by § 52-102b (a) was mandatory; however, Murphy & Lieponis specifically argued that the court “lackfed] subject matter jurisdiction over *17the Apportionment Complaint because it was not filed within 120 days of the return date specified in [the] [plaintiffs original complaint, as required by [§] 52-102b (a) . . . .” Again, the defendants objected, claiming that the apportionment complaint was timely filed within the ninety day extension period and, therefore, the court had jurisdiction over the apportionment action. The trial court, Booth, J., granted Murphy & Lieponis’ motion to dismiss, ruling that § 52-102b (a) mandates that an apportionment complaint be filed within 120 days of the return date on the original complaint, and, in the present case, the defendants’ failure to do so deprived the court of subject matter jurisdiction. Subsequently, the trial court rendered a partial judgment of dismissal in favor of Murphy & Lieponis.\nThe defendants appealed from the trial court’s judgment of dismissal as to Neurosurgical Associates to the Appellate Court.7 We then transferred the appeal to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1. The defendants subsequently amended their appeal to this court to include the trial court’s judgment of dismissal in favor of Murphy & Lieponis.\nI\nThe defendants’ first claim on appeal is that the 120 day time limitation for bringing an apportionment claim prescribed by § 52-102b (a) is directory and, therefore, the trial courts, which interpret,ed § 52-102b (a) as mandatory, improperly dismissed their apportionment complaint. The apportionment defendants maintain that compliance with the time limitation contained in § 52-102b (a) is mandatory and, therefore, because the defendants served the apportionment complaint more than *18120 days after the return date of the original complaint, the trial courts properly dismissed the apportionment action. We agree with the apportionment defendants. We further conclude that § 52-102b (a) implicates personal jurisdiction, not subject matter jurisdiction.8\nResolution of this issue requires us to construe the relevant statutory provision, namely, § 52-102b (a). Thus, the question of whether the 120 day time limitation contained in § 52-102b (a) is mandatory presents a question of statutory interpretation over which our review is plenary. See Waterbury v. Washington, 260 Conn. 506, 546-47, 800 A.2d 1102 (2002).\n“The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.” Public Acts 2003, No. 03-154, § l.9 In the present case, Neurological Associates contends that § 52-102b clearly and unambiguously establishes that the 120 day time limitation is mandatory. Although we are persuaded after considering extratextual evidence that the 120 day time limitation is mandatory, we cannot conclude that the statute is clear and unambiguous on its face for two reasons. First, § 52-102b does not state explicitly that the time limitation is mandatory. Second, the inclusion of the phrase “if the apportionment com*19plaint is served within the time period” in § 52-102b (b) could be understood to mean that it is possible that the apportionment complaint could be served outside the 120 day period and nevertheless be viable. We therefore are not limited to the text of the statute in determining its meaning.\n“The test to be applied in determining whether a statute is mandatory or directory is whether the prescribed mode of action is the essence of the thing to be accomplished, or in other words, whether it relates to a matter of substance or a matter of convenience. ... If it is a matter of substance, the statutory provision is mandatory. If, however, the legislative provision is designed to secure order, system and dispatch in the proceedings, it is generally held to be directory, especially where the requirement is stated in affirmative terms unaccompanied by negative words.” (Internal quotation marks omitted.) Williams v. Commission on Human Rights & Opportunities, 257 Conn. 258, 268, 777 A.2d 645 (2001).\nWe begin, as we always do, with the language of the relevant statute.10 General Statutes § 52-102b (a) provides in relevant part: “A defendant in any civil action to which [General Statutes §] 52-572h applies may serve a writ, summons and complaint upon a person not a party to the action who is or may be liable pursuant to said section for a proportionate share of the plaintiffs damages in which case the demand for *20relief shall seek an apportionment of liability. Any such writ, summons and complaint, hereinafter called the apportionment complaint, shall be served within one hundred twenty days of the return date specified in the plaintiffs original complaint. . . .” (Emphasis added.)\nThe use of the word “shall” in § 52-102b (a) suggests that the legislature intended the 120 day time limitation to be a mandatory circumscription of the right to bring an apportionment claim. “As we have often stated, [definitive words, such as must or shall, ordinarily express legislative mandates of a nondirectory nature.” (Internal quotation marks omitted.) Williams v. Commission on Human Rights & Opportunities, supra, 257 Conn. 270-71. By contrast, “[t]he word ‘may,’ unless the context in which it is employed requires otherwise, ordinarily does not connote a command. Rather, the word generally imports permissive conduct and the conferral of discretion.” Commission on Human Rights & Opportunities v. Truelove & Maclean, Inc., 238 Conn. 337, 349, 680 A.2d 1261 (1996). Therefore, when the legislature opts to use the words “shall” and “may” in the same statute, they “must then be assumed to have been used with discrimination and a full awareness of the difference in their ordinary meanings.” (Internal quotation marks omitted.) Caulkins v. Petrillo, 200 Conn. 713, 717, 513 A.2d 43 (1986). It is especially relevant that the legislature chose to use the word “shall” when referring to service of an apportionment complaint in contrast to the more permissive, “may,” which is used with respect to the right to bring an apportionment claim. This distinction, which we assume to be deliberate, suggests that the legislature intended service of an apportionment complaint within the prescribed time period to be mandatory.\nOur determination that § 52-102b (a) is mandatory is further informed by the text of subsection (f) of the statute, which strongly suggests that compliance with *21the 120 day provision is mandatory. That subsection provides that “[t]his section shall be the exclusive means by which a defendant may add a person who is or may be liable pursuant to section 52-572h for a proportionate share of the plaintiffs damages as a party to the action.” (Emphasis added.) General Statutes § 52-102b (f). The term “exclusive” is defined as “ [appertaining to the subject alone, not including, admitting, or pertaining to any others. Sole. Shutting out . . . .” Black’s Law Dictionary (6th Ed. 1990). Indeed, we have stated that § 52-572h,11 which establishes the right to apportion liability, “does not entitle a defendant to seek to apportion liability in instances in which the procedures outlined in § 52-102b are not followed.” Eskin v. Castiglia, 253 Conn. 516, 530, 753 A.2d 927 (2000); Allard v. Liberty Oil Equipment Co., 253 Conn. 787, 792-93, 756 A.2d 237 (2000). Thus, it is incontrovertible that, if a defendant seeks to apportion liability, he must comply with § 52-102b (a).\nThe linguistic evolution of § 52-102b, as illustrated by its legislative history, is also instructive. See, e.g., Donahue v. Southington, 259 Conn. 783, 790, 792 A.2d 76 (2002) (comparing original version of proposed bill to public act). Although Senate Bill No. 1012 (S.B. 1012) underwent several revisions before its ultimate passage as No. 95-111 of the 1995 Public Acts (P.A. 95-111), the precursor to § 52-102b, the legislative history reveals that, despite making other substantive changes, the legislature repeatedly opted for strong, compulsory language when referring to the time limitation for *22commencing an apportionment action. At its inception, Raised Bill No. 1012, the precursor to substitute S.B. 1012, provided that, “no person shall be made a defendant for purposes of apportioning liability under section 52-572h unless service of process is made on such person no later than three years from the date the personal injury, wrongful death or damage to property occurred. ” (Emphasis added.) Raised Bill No. 1012, 1995 Sess. A subsequent draft proposed the following language: “Any such writ, summons and complaint, hereinafter called the apportionment complaint, must be served within one hundred twenty days of the return date in the plaintiffs original complaint.” (Emphasis added.) Proposed Substitute S.B. 1012. Ultimately, as passed, P.A. 95-111 contained the language currently at issue: “Any such writ, summons and complaint, hereinafter called the apportionment complaint, shall be served within one hundred twenty days of the return date . . . .” (Emphasis added.) Thus, although the specific terms employed to refer to the 120 day period progressed from “no later than” to “must” to “shall,” all of the words contemplated were compulsory in nature.\nDespite the legislature’s apparent intent to employ mandatory language, we are mindful that the word “shall” is not dispositive on the issue of whether a statute is mandatory. We have stated that “the use of the word shall, though significant, does not invariably [create] a mandatory duty.” (Internal quotation marks omitted.) State v. Pare, 253 Conn. 611, 623, 755 A.2d 180 (2000). Thus, we must consider another factor, namely, whether the time limitation contained in § 52-102b (a) is procedural or substantive.\n“A statute of limitations is generally considered to be procedural, especially where the statute contains only a limitation as to time with respect to a right of action and does not itself create the right of action.” *23(Internal quotation marks omitted.) Ecker v. West Hartford, 205 Conn. 219, 231-32, 530 A.2d 1056 (1987). “[W]here a statute gives a right of action which did not exist at common law, [however] and fixes the time within which the right must be enforced, the time fixed is a limitation or condition attached to the right—it is a limitation of the liability itself as created, and not of the remedy alone.” (Internal quotation marks omitted.) Diamond National Corp. v. Dwelle, 164 Conn. 540, 543, 325 A.2d 259 (1973). “In such cases, the time limitation is not to be treated as an ordinary statute of limitation .... The courts of Connecticut have repeatedly held that, under such circumstances, the time limitation is a substantive and jurisdictional prerequisite . . . .” (Citations omitted.) Ecker v. West Hartford, supra, 232.\nIn order to determine whether the 120 day time limitation is substantive or procedural, therefore, we must first ascertain whether § 52-102b created a right that did not exist at common law. The facts essential to this query, which we answer in the affirmative, can be found in the legislative history of that statute. Before examining the legislative history, however, we briefly summarize the development of the tort reform legislation that preceded the passage of § 52-102b, which highlights the genesis of the current statutory right to apportion liability.\nThis court previously has addressed at length the evolution of Tort Reform I and II, in which the legislature abolished the common-law rule of joint and several liability and replaced it with a system based on principles of comparative fault. See, e.g., Donner v. Kearse, 234 Conn. 660, 666-69, 662 A.2d 1269 (1995). “Prior to October 1, 1986, this state adhered to the rules of joint and several liability with no contribution among joint tortfeasors. . . . [Therefore, even a defendant whose degree of fault was comparatively small could be held responsible for the entire amount of damages .... *24Partially in response to these concerns, the legislature undertook to reform the tort recovery provisions of our civil system .... Tort Reform I provided that each defendant would initially be liable for only that percentage of his negligence that proximately caused the injuiy, in relation to one hundred percent, that is attributable to each person whose negligent actions were aproxímate cause of the damages.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Id., 666-67. Subsequently, one year after Tort Reform I, the legislature enacted Tort Reform II, which “limited the universe [of negligent persons] to only those individuals who were parties to the legal action or who were specifically identified in § 52-572h (n).” Id., 668-69.\nTort Reform II, however, overlooked two significant details required to implement effectively the newly created fault apportionment system. Although § 52-572h created the right for a defendant to apportion liability to any party to the action, it did not include a means to invoke that right nor did it address the effect of the underlying statute of limitations on the apportionment claim. See Office of Legislative Research, Bill Analysis of S.B. 1012, pp. 7-8. Specifically, § 52-572h failed to provide for a means to make a nonparty a party to the action for the purpose of apportioning liability. As a member of the bar observed at a public hearing before the judiciary committee, “there exists a problem under Tort [Reform II] as to what do we do, when do we bring [parties] in . . . and what happens.” Conn. Joint Standing Committee Hearings, Judiciary, Pt. 5, 1995 Sess., p. 1752, remarks of Vincent DeAngelo, member of the executive committee of the Litigation Section of the Connecticut Bar Association. Another public hearing participant succinctly captured the practical ramifications of this omission: “[T]here are . . . problems . . . as a result of the abolition of joint and [several] liability. The first problem is that a lawyer may [bring] *25suit in a timely fashion maybe three or four or five months after he gets the case and the defendant waits until two years and three months and then brings in third parties that the defendant has known about all along . . . .” Id., p. 1714, remarks of William Gallagher, representative of the Connecticut Trial Lawyers Association. The confusion spawned by the absence of a statutory method for apportioning liability prompted trial courts to invent varying methods, which often yielded inconsistent results.12 See Office of Legislative Research, supra, p. 8.\nTo remedy these problems, the legislature adopted S.B. 1012, which was the “end result of a lengthy process of attempting to answer a question which arose because of the tort reform legislation passed several years ago.” 38 H.R. Proc., Pt. 9, 1995 Sess., p. 3267, remarks of Representative Michael Lawlor; see also Conn. Joint Standing Committee Hearings, supra, p. 1736, remarks of Robert Shea, representative for the Insurance Association of Connecticut (bill intended to “address the apportionment issue, which members of the Bar and the Judges of the Superior Court agree is currently a problem”). Specifically, the bill had two purposes: “[T]o clarify the procedures by which courts order parties to appear in a case for purposes of apportionment . . . [and] to clarify [which] statute of limitations to impose . . . .” Report on Bills Favorably Reported by Committee, Judiciary (May 5, 1995) p. 1. Thus, it is apparent that the legislature intended § 52-102b to implement the right to apportionment that previously had been created in § 52-572h. Indeed, by its own terms, § 52-102b operates only in conjunction with § 52-572h and its primary application is to effectuate the right to apportion liability. See footnote 1 of this opinion.\n*26This symbiotic relationship between §§ 52-102b and 52-572h leads us to conclude that, because § 52-102b was designed to clarify and make uniform the method of apportioning liability, it is intertwined inextricably with the broad right to apportionment created by the legislature in 1986, despite its placement in a different statutory section. We previously have determined that the system of comparative fault established by Tort Reform I and refined by Tort Reform II created rights that did not exist at common law. Nash v. Yap, 247 Conn. 638, 648, 726 A.2d 92 (1999). Accordingly, it is axiomatic that § 52-102b, which gave life to the right to apportionment provided in § 52-572h, also confers rights that did not exist at common law.\nHaving concluded that § 52-102b created rights that did not exist at common law, we further conclude that the statute’s 120 day time limitation is a substantive limitation on the right to apportionment. As we already have stated, § 52-102b was designed to create an effective means of accomplishing apportionment with reasonable certainty. This was not possible prior to § 52-102b, which delineated the proper timing and method of service of an apportionment complaint. Although § 52-102b contains some procedural aspects, its substantive purpose and effect cannot be minimized. Section 52-102b gives tangible force to the right to apportionment created in § 52-572h. Conversely, failure to comply with its requirements prevents a defendant from exercising the right to apportion liability. Accordingly, on the basis of the mandatory language employed by the legislature and our conclusion that § 52-102b (a) is substantive, we further conclude that the 120 day time limitation contained therein is mandatory.\nIn support of their claim that the 120 day time limitation is directory, the defendants argue that the language of § 52-102b (a) plainly contemplates service beyond 120 days. According to the defendants, § 52-102b con*27tains no language indicating that the right to bring an apportionment action is lost if it is not brought within 120 days of the return date. To the contrary, they claim that subsection (b) expressly permits a defendant to seek to apportion liability more than 120 days after the return date on the underlying complaint. We disagree.\nSection 52-102b (b) provides in relevant part: “The apportionment defendant shall have available to him all remedies available to an original defendant including the right to assert defenses, set-offs or counterclaims against any party. If the apportionment complaint is served within the time period specified in subsection (a) of this section, no statute of limitation or repose shall be a defense or bar to such claim for apportionment . . . .” (Emphasis added.) The defendants maintain that the phrase, “[i]f the apportionment complaint is served within the time period” denotes that service within the 120 day window is optional. Specifically, they read § 52-102b (b) to suggest that, if an apportionment action is not brought within 120 days, the action will be barred by the applicable statute of limitations, thereby implicitly sanctioning the filing of an apportionment action beyond 120 days. To this extent, the defendants claim that the apportionment complaint in the present case was timely served more than 120 days after the return date, but within the statute of limitations for a medical malpractice action.13\nThis reading takes the clause out of context and obviates the purposes of the statute. As we previously have discussed, one of the dual phrposes of § 52-102b was to establish the relationship between the timeline for bringing an apportionment claim and the underlying statute of limitations. The defendants’ reading posits a *28situation in which a defendant essentially elects which statute of limitation to employ, thereby allowing a defendant strategically to time the filing of an apportionment action so as to manipulate its effect to the detriment of potential third parties. For example, under the defendants’ interpretation, a defendant would have two options: he could seek an apportionment of liability within 120 days of the return date of the complaint as provided by § 52-102b (a), or, following the expiration of the 120 day window period, he could file an apportionment action based on the underlying statute of limitations if it had not yet expired. This malleable approach is reminiscent of the confusion that precipitated the passage of P. A. 95-111 and is the very practice the legislature intended to suppress. Moreover, the defendants’ interpretation would undermine the second purpose of the statute, which was to bring uniformity to the apportionment process. Injecting discretion into § 52-102b, as the defendants suggest, completely ignores the fact that it was enacted to ensure uniformity of result and process at the trial level.\nThe defendants also argue that § 52-102b (a) is merely procedural and, as such, should be considered directory. Specifically, the defendants argue that the right to bring a party into an action for apportionment of liability purposes was vested in § 52-572h by Tort Reform I in 1986 and, therefore, § 52-102b is merely a successor provision establishing the procedural mechanism by which to bring such an action. Thus, the defendants claim that § 52-102b (a) is a procedural device intended to “secure order and dispatch . . . .” We do not disagree that the right to seek apportionment of liability has existed in Connecticut since 1986. See, e.g., Donner v. Kearse, supra, 234 Conn. 666. Nor do we disagree that § 52-102b contains some procedural elements. Our disagreement, however, is with the defen*29dants’ characterization of § 52-102b (a) as purely procedural.\nThis court previously has addressed a factually similar situation in Diamond National Corp. v. Dwelle, supra, 164 Conn. 540. In that case, the plaintiff appealed from the trial court’s judgment of dismissal, in which the court held that it lacked jurisdiction over an action to enforce a mechanic’s lien due to the expiration of the statutory time limit governing the validity of the lien. In affirming the trial court’s judgment, this court stated: “[Wjhere a statute gives a right of action which did not exist at common law, and fixes the time within which the right must be enforced, the time fixed is a limitation or condition attached to the right .... Since [the relevant statute] sets the time within which the action must be commenced, it would appear that the statute conforms with the general rule and is thus a limitation on the right.” (Citations omitted; internal quotation marks omitted.) Diamond National Corp. v. Dwelle, supra, 164 Conn. 543. This court then posited the following argument: “At this point it might be argued that because the lien was limited by [one statute] and was created by a different section . . . the general míe of construction stated above does not apply. This argument, however, is based on a misunderstanding of the general rule. . . . [T]he common case [for application of the general rule] is where a statute creates a new liability and in the same section or in the same act limits the time within which it can be enforced .... But the fact that the limitation is contained in the same section or the same statute is material only as bearing on construction. It is merely a ground for saying that the limitation goes to the right created and accompanies the obligation everywhere. The same conclusion would be reached if the limitation was in a different statute, provided it was directed to the newly created liability so specifically as to warrant saying that it qualified *30the right.” (Citations omitted; emphasis added; internal quotation marks omitted.) Id., 544. Thus, in the present ease, the fact that the 120 day provision of § 52-102b (a) is not located in the same section as the right to apportionment, which is contained in § 52-572h, is immaterial, especially in light of the close relationship between the two sections.\nFinally, the defendants rely on our decision in Katz v. Commissioner of Revenue Services, 234 Conn. 614, 617, 662 A.2d 762 (1995), claiming that § 52-102b is analogous to General Statutes § 12-515,14 which, in Katz, was held to be directory. We disagree. In Katz, the plaintiff claimed that § 12-515, which contains a provision requiring the commissioner of revenue services to act on a claim for a tax refund within ninety days, is mandatory. Id. After reviewing the language of the statute and the accompanying legislative history, we concluded that the ninety day requirement was not related to a matter of substance, but was merely an inducement to process refund claims in a timely manner. Id., 618. We are not persuaded that § 52-102b is analogous to § 12-515. As we already have stated, § 52-102b contains a substantive limitation on the right to bring an appor*31tionment claim. It is the very essence of the statute and, therefore, cannot be characterized as an inducement.\nAlthough we have concluded that § 52-102b (a) is mandatory, this does not end our inquiry. Rather, in order to resolve fully the issues presented in this appeal, we must consider the jurisdictional implications of our determination. Specifically, the contrasting legal arguments advanced by the apportionment defendants in the trial court require us to determine whether the mandatory 120 day time limitation implicates personal or subject matter jurisdiction.\nWe begin with a review of the distinctions between personal and subject matter jurisdiction. We previously have stated that “[j jurisdiction of the subject-matter is the power [of the court] to hear and determine cases of the general class to which the proceedings in question belong. ... A court has subject matter jurisdiction if it has the authority to adjudicate a particular type of legal controversy.” (Internal quotation marks omitted.) Rayhall v. Akim Co., 263 Conn. 328, 339, 819 A.2d 803 (2003). A defect in process, however, such as an improperly executed writ, implicates personal jurisdiction, rather than subject matter jurisdiction. See Brunswick v. Inland Wetlands Commission, 222 Conn. 541, 551, 610 A.2d 1260 (1992). “[Wjhen a particular method of serving process is set forth by statute, that method must be followed. . . . Unless service of process is made as the statute prescribes, the court to which it is returnable does not acquire jurisdiction. . . . The jurisdiction that is found lacking, however, is jurisdiction over the person, not the subject matter.” (Citations omitted.) Connor v. Statewide Grievance Committee, 260 Conn. 435, 442, 797 A.2d 1081 (2002); Commissioner of Transportation v. Kahn, 262 Conn. 257, 272, 811 A.2d 693 (2003).\nThis court previously has disavowed the notion that mandatory language is per se subject matter jurisdic*32tional. In Williams v. Commission on Human Rights & Opportunities, supra, 257 Conn. 269-70, we stated that, “[although we acknowledge that mandatory language may be an indication that the legislature intended a time requirement to be jurisdictional, such language alone does not overcome the strong presumption of jurisdiction, nor does such language alone prove strong legislative intent to create a jurisdictional bar.” We further stated that “[a] conclusion that a time limit is subject matter jurisdictional has very serious and final consequences. It means that, except in very rare circumstances ... a subject matter jurisdictional defect may not be waived . . . may be raised at any time, even on appeal . . . and that subject matter jurisdiction, if lacking, may not be conferred by the parties, explicitly or implicitly.” (Citations omitted.) Id., 266; see also Practice Book § 10-33 (“[a]ny claim of lack of jurisdiction over the subject matter cannot be waived”). A challenge to a court’s personal jurisdiction, however, is waived if not raised by a motion to dismiss within thirty days of the filing of an appearance. Pitchell v. Hartford, 247 Conn. 422, 433, 722 A.2d 797 (1999) (“[t]he rule specifically and unambiguously provides that any claim of lack of jurisdiction over the person as a result of an insufficiency of service of process is waived unless it is raised by a motion to dismiss filed within thirty days [after the filing of an appearance] in the sequence required by Practice Book § 10-6”); see also Practice Book § 10-32 (“[a]ny claim of lack of jurisdiction over the person ... is waived if not raised by a motion to dismiss”). “Therefore, we have stated many times that there is a presumption in favor of subject matter jurisdiction, and we require a strong showing of legislative intent that such a time limit is jurisdictional.” Williams v. Commission on Human Rights & Opportunities, supra, 266.\nWe turn again to the language of § 52-102b, which, we conclude, is a service provision by its express terms. We have noted that the legislature frequently employs *33the term “service” when dictating the necessary procedures by which a court may gain jurisdiction over a person. See Commissioner of Transportation v. Kahn, supra, 262 Conn. 273; see also General Statutes § 4-183 (c) (“person appealing as provided in this section shall serve a copy of the appeal on the agency that rendered the final decision”); General Statutes § 7-137c (“owner of any property so assessed may appeal to the superior court ... by service of process made in accordance with the provisions of [General Statutes §] 52-67”). In the present case, § 52-102b is replete with references to service of process, through the use of the term “serve.” For example, the statute provides in relevant part: “A defendant in any civil action to which section 52-572h applies may serve a writ .... Any such writ, summons and complaint, hereinafter called the apportionment complaint, shall be served within one hundred twenty days of the return date .... The defendant . . . shall serve a copy of such apportionment complaint on all parties to the original action . . . .” (Emphasis added.) General Statutes § 52-102b (a).\nWe also note that in addition to the language suggestive of service of process, § 52-102b ties the 120 day window to the return date, a device primarily concerned with matters related to service of process. See, e.g., Coppola v. Coppola, 243 Conn. 657, 661 n.8, 707 A.2d 281 (1998) (“the return date determines howto compute the time for service of process; General Statutes § 52-46; the time for filing the writ with the court; General Statutes § 52-46a; the time for the defendant to file an appearance with the court; General Statutes § 52-84; and the time for the defendant to respond to the complaint . . . Practice Book § 114 [now § 10-8]”). Therefore, because we conclude that § 52-102b is a service provision, we further determine that it implicates personal jurisdiction rather than subject matter jurisdiction.\n*34Turning to the present case, we are mindful that the apportionment defendants, in their respective motions to dismiss, framed their jurisdictional challenges differently. Specifically, while both Neurosurgical Associates and Murphy & Lieponis pointed to untimely service of the apportionment complaint as the basis for their challenge, Neurosurgical Associates claimed a lack of personal jurisdiction15 while Murphy & Lieponis asserted the absence of subject matter jurisdiction.16 Despite the differences in nomenclature, the motions to dismiss, both of which were filed within thirty days of service of the apportionment complaint, relied on late service as the underlying basis for dismissal. We therefore see no reason to distinguish among the apportionment defendants, and, accordingly, conclude that both motions to dismiss properly were granted.\nThis court repeatedly has eschewed applying the law in such a hypertechnica! manner so as to elevate form over substance. See, e.g., Stepney Pond Estates, Ltd. v. Monroe, 260 Conn. 406, 422, 797 A.2d 494 (2002) (“[t]o conclude . . . that the fact that the plaintiff invoked [a statute] instead of bringing a common-law action in equity deprived the trial court of jurisdiction would be to exalt form over substance”); Quarry Knoll II Corp. v. Planning & Zoning Commission, 256 Conn. 674, 729-30, 780 A.2d 1 (2001) (requiring planning and zoning commission to state expressly that its reasons for rejecting applications clearly outweighed need for affordable housing in order to satisfy public interests standard of subparagraph [C] of then General Statutes *35§ 8-30g [c] [1] would have elevated form over substance); State v. Eady, 249 Conn. 431, 450, 733 A.2d 112 (1999) (“suppression of [evidence observed in plain view by fireman lawfully on premises] would elevate form over substance and would undermine three decades of state and federal precedent that has sought to infuse logic and common sense into the exclusionary rule”), cert. denied, 528 U.S. 1030, 120 S. Ct. 551, 145 L. Ed. 2d 428 (1999). Moreover, “[t]he modem trend, which is followed in Connecticut, is to construe pleadings broadly and realistically, rather than narrowly and technically.” (Internal quotation marks omitted.) Beaudoin v. Town Oil Co., 207 Conn. 575, 587-88, 542 A.2d 1124 (1988). Thus, we agree with the United States Court of Appeals for the Second Circuit that “to preserve the defense of lack of personal jurisdiction, a defendant . . . need not articulate the defense with any rigorous degree of specificity.” Mattel, Inc. v. Barbie-Club.Com, 310 F.3d 293, 307 (2d Cir. 2002).\nII\nThe defendants’ second, and final, claim is that the trial courts improperly granted the apportionment defendants’ motions to dismiss because the apportionment complaint was timely filed within the ninety day extension granted by the trial court. The apportionment defendants maintain, however, that because § 52-102b (a) is mandatory, the trial court lacked the authority to extend the time for commencing an apportionment action. We agree with the apportionment defendants.\nAs we stated in part I of this opinion, our review of a question of statutory interpretation is plenary. See Waterbury v. Washington, supra, 260 Conn. 546-47.\nThe defendants’ argument falters on two grounds. First, we already have concluded that compliance with § 52-102b (a) is mandatory. “[M]andatory time limitations must be complied with absent an equitable reason *36for excusing compliance, including waiver or consent by the parties.” Williams v. Commission on Human Rights & Opportunities, supra, 257 Conn. 270. The facts of this appeal present no evidence of waiver or consent.17\nSecond, § 52-190a, the statute on which the defendants premised their request for an extension of time, does not apply to apportionment claims under § 52-102b by virtue of the express wording of the statute. Section 52-190a (a) provides in relevant part that “[n]o civil action shall be filed to recover damages resulting from personal injury or wrongful death occurring on or after October 1, 1987, whether in tort or in contract, in which it is alleged that such injury or death resulted from the negligence of a health care provider, unless the attorney or party filing the action has made a reasonable inquiry as permitted by the circumstances to determine that there are grounds for a good faith belief that there has been negligence in the care or treatment of the claimant. ...” (Emphasis added.) By its own terms, § 52-190a (a) applies only to those actions in which a party seeks “to recover damages . . . .” Pursuant to § 52-102b (a), the demand for relief in an apportionment complaint seeks only an “apportionment of liability.” “Liability” refers to a legal obligation or responsibility; Black’s Law Dictionary (6th Ed. 1990); whereas “damages” refers to “monetary compensation” for loss or injury. Id. The terms are not synonymous. Accordingly, § 52-190a, which applies only to civil actions “to recover damages,” does not apply to apportionment complaints, which seek only an apportionment of liability.\nThe concurring and dissenting opinion concludes that § 52-190a applies to apportionment claims brought *37under § 52-102b. That conclusion, however, runs afoul of several requirements for statutory construction. Public Act 03-154, § 1, provides in relevant part: “The meaning of a statute shall, in the first instance, be ascertained from the text of the statutes itself and its relationship to other statutes. . . .” The language of § 52-190a limits its applicability to civil actions in which a party seeks to recover damages. The analysis in the concurring and dissenting opinion fails to give the greatest weight to the language of the statute as it was adopted by the legislature.\nThat analysis also contravenes a well established rule of statutory construction by reading the words “to recover damages” out of § 52-190a. “We ordinarily do not read statutes so as to render parts of them superfluous or meaningless.” (Internal quotation marks omitted.) State v. Reynolds, 264 Conn. 1, 135, 836 A.2d 224 (2003). In concluding that § 52-190a applies to apportionment complaints, the concurring and dissenting opinion renders the phrase “to recover damages” meaningless.\nThe concurring and dissenting opinion disagrees with what it deems our narrow and literal reading of the statutes and maintains that §§ 52-102b and 52-190a, when read broadly, are in fact compatible. Both statutes, however, were drafted as part of, or in response to, tort reform and are therefore in derogation of the common law. See Nash v. Yap, supra, 247 Conn. 648. It is axiomatic that “statutes in derogation of common law should receive a strict construction and [should not] be extended, modified, repealed or enlarged in [their] scope by the mechanics of construction.” (Internal quotation marks omitted.) Bhinder v. Sun Co., 246 Conn. 223, 231, 717 A.2d 202 (1998). The concurrence and dissent’s broad reading of both these statutes violates this well recognized principle of statutory construction.\n*38Our conclusion that §§ 52-102b and 52-190a are incompatible is buttressed by the fact that the legislature adopted the apportionment complaint provisions of § 52-102b in 1995, nine years after the certificate of good faith requirement in § 52-190a had been established by Tort Reform I. Had the legislature intended the requirements of § 52-190ato apply to actions seeking an apportionment of liability, it could have mirrored the language of § 52-190a when drafting § 52-102b. The legislature, however, did not to do so. Instead, § 52-102b contains language that is wholly inconsistent with § 52-190a.\nThe concurring and dissenting opinion further states that harmonizing §§ 52-102b and 52-190a would effectuate the underlying policies of § 52-190a, which include controlling medical malpractice insurance rates. We think that conclusion is speculative at best because we do not know whether medical malpractice insurance carriers provide a defense for apportionment claims, which cannot result in a judgment for damages, and, if they do provide a defense, whether doing so without risking a judgment for damages causes an increase in malpractice insurance rates.\nFor all of the foregoing reasons, we conclude that the ninety day extension granted by the trial court did not extend the mandatory service period set forth in § 52-102b (a).\nThe judgments are affirmed.\nIn this the opinion SULLIVAN, C. J., and ZARELLA, J., concurred.\n\n General Statutes § 52-102b provides: “(a) A defendant in any civil action to which section 52-572h applies may serve a writ, summons and complaint upon a person not a party to the action who is or may be hable pursuant to said section for a proportionate share of the plaintiffs damages in which case the demand for relief shall seek an apportionment of liability. Any such writ, summons and complaint, hereinafter called the apportionment complaint, shall be served within one hundred twenty days of the return date specified in the plaintiffs original complaint. The defendant filing an apportionment complaint shall serve a copy of such apportionment complaint on all parties to the original action in accordance with the rules of practice of the Superior Court on or before the return date specified in the apportionment complaint. The person upon whom the apportionment complaint is served, hereinafter called the apportionment defendant, shall be a party for all purposes, including all purposes under section 52-572h.\n“(b) The apportionment complaint shall be equivalent in all respects to an original writ, summons and complaint, except that it shall include the docket number assigned to the original action and no new entry fee shall be imposed. The apportionment defendant shall have available to him all remedies available to an original defendant including the right to assert defenses, set-offs or counterclaims against any party. If the apportionment complaint is served within the time period specified in subsection (a) of *13this section, no statute of limitation or repose shall be a defense or bar to such claim for apportionment, except that, if the action against the defendant who instituted the apportionment complaint pursuant to subsection (a) of this section is subject to such a defense or bar, the apportionment defendant may plead such a defense or bar to any claim brought by the plaintiff directly against the apportionment defendant pursuant to subsection (d) of this section.\n“(c) No person who is immune from liability shall be made an apportionment defendant nor shall such person’s liability be considered for apportionment purposes pursuant to section 52-572h. If a defendant claims that the negligence of any person, who was not made a party to the action, was a proximate cause of the plaintiffs injuries or damage and the plaintiff has previously settled or released the plaintiffs claims against such person, then a defendant may cause such person’s liability to be apportioned by filing a notice specifically identifying such person by name and last known address and the fact that the plaintiffs claims against such person have been settled or released. Such notice shall also set forth the factual basis of the defendant’s claim that the negligence of such person was a proximate cause of the plaintiffs injuries or damages. No such notice shall be required if such person with whom the plaintiff settled or whom the plaintiff released was previously a party to the action.\n“(d) Notwithstanding any applicable statute of limitation or repose, the plaintiff may, within sixty days of the return date of the apportionment complaint served pursuant to subsection (a) of this section, assert any claim against the apportionment defendant arising out of the transaction or occurrence that is the subject matter of the original complaint.\n“(e) When a counterclaim is asserted against a plaintiff, he may cause a person not a party to the action to be brought in as an apportionment defendant under circumstances which under this section would entitle a defendant to do so.\n“(f) This section shall be the exclusive means by which a defendant may add a person who is or may be liable pursuant to section 52-572h for a proportionate share of the plaintiffs damages as a party to the action.\n“(g) In no event shall any proportionate share of negligence determined pursuant to subsection (i) of section 52-572h attributable to an apportionment defendant against whom the plaintiff did not assert a claim be reallocated under subsection (g) of said section. Such proportionate share of negligence shall, however, be included in or added to the combined negligence of the person or persons against whom the plaintiff seeks recovery, including persons with whom the plaintiff settled or whom the plaintiff released under subsection (n) of section 52-572h, when comparing any negligence of the plaintiff to other parties and persons under subsection (b) of said section.”\n\n\n Collectively, we refer to these four parties as the apportionment defendants.\n\n\n The trial court did not specify whether it found a lack of subject matter jurisdiction or a lack of personal jurisdiction.\n\n\n Lostritto, the original plaintiff, died on June 17, 2001. Lori Paiva, administratrix of Lostritto’s estate, was substituted as plaintiff on June 17, 2002, pursuant to General Statutes § 52-599 (b). Because Paiva did not amend the complaint to assert claims directly against the apportionment defendants, she is not a party to this appeal. For convenience, we refer to Lostritto as the plaintiff.\n\n\n In a one count complaint, the plaintiff alleged that Barrett, the operator of the motor vehicle owned by Community Action, her employer, negligently collided with his vehicle while she was maMng a U-tum on Route 34 in the town of Orange.\n\n\n General Statutes § 52-190a (a) provides in relevant part: “No civil action shall be filed to recover damages resulting from personal injury or wrongful death occurring on or after October 1, 1987, whether in tort or in contract, in which it is alleged that such injury or death resulted from the negligence of a health care provider, unless the attorney or party filing the action has made a reasonable inquiry as permitted by the circumstances to determine that there are grounds for a good faith belief that there has been negligence in the care or treatment of the claimant. The complaint or initial pleading shall contain a certificate, on a form prescribed by the rules of the superior court, of the attorney or party filing the action that such reasonable inquiry gave rise to a good faith belief that grounds exist for an action against each named defendant. . . .”\n\n\n As of the date the defendants filed their appeal, May 13, 2002, the trial court had not yet rendered judgment on the motion to dismiss filed by Murphy & Lieponis.\n\n\n All of the apportionment defendants claim in their briefs to this court that noncompliance with § 52-102b (a) raises an issue of subject matter jurisdiction. Neurosurgical Associates claims, as an alternate ground to affirm, that § 52-102b (a) implicates personal jurisdiction. We agree with Neurosurgical Associates’ alternate ground.\n\n\n Public Act 03-154 was enacted in order to overrule our rejection of the plain meaning rule in State v. Courchesne, 262 Conn. 537, 577, 816 A.2d 562 (2003).\n\n\n We note that there is a division of authority in the trial court decisions addressing this issue. See, e.g., Mazzola v. Yaghma, Superior Court, judicial district of New Haven, Docket No. 403943 (January 24, 2000) (holding that compliance with § 52-102b [a] is mandatory); Ortiz v. Bridgeport Hospital, Superior Court, judicial district of New London, Docket No. 547104 (February 24, 2000) (same); contra Casey v. Allegheny Teledyne, Inc., Superior Court, judicial district of New London, Docket No. 0121238S (August 23, 2001) (120 day limitation of § 52-102b [a] is directory); Ketchale v. Unger, Superior Court, judicial district of New Haven, Docket No. 396218 (July 15, 1998) (same).\n\n\n General Statutes § 52-572h (c) provides: “In a negligence action to recover damages resulting from personal injury, wrongful death or damage to property occurring on or after October 1, 1987, if the damages are determined to be proximately caused by the negligence of more than one party, each party against whom recovery is allowed shall be liable to the claimant only for such party’s proportionate share of the recoverable economic damages and the recoverable noneconomic damages except as provided in subsection (g) of this section.”\n\n\n Some courts used General Statutes § 52-102 to permit nonparties to be brought into negligence actions for the purpose of apportioning liability. See Office of Legislative Research, supra, p. 8. Section 52-102 allowed a court, upon a motion, to make someone a parly in any civil action if he has an interest that is contrary to the plaintiffs. Id.\n\n\n The statute of limitations for a medical malpractice action is two years from the date when the injury is first sustained or discovered. General Statutes § 52-584.\n\n\n General Statutes § 12-515 provides: “Any taxpayer who feels that he has overpaid any taxes due under this chapter may file a claim for refund in writing with the commissioner within three years from the due date for which such overpayment was made stating the specific grounds upon which the claim is founded. Not later than ninety days following receipt of such claim for refund the commissioner shall determine whether such claim is valid and if so, said commissioner shall notify the Comptroller of the amount of such refund and the Comptroller shall draw an order on the Treasurer in the amount thereof for payment to the taxpayer. To the amount of such refund there shall be added interest at the rate of three-fourths of one per cent for each month or fraction thereof which elapses between the ninetieth day following receipt of such claim for refund by the commissioner and the date of notice by the commissioner that such refund is due. Failure to file a claim within the time prescribed in this section constitutes a waiver of any demand against the state on account of overpayment. Within thirty days after disallowing any claim in whole or in part the commissioner shall serve notice of his action on the claimant.”\n\n\n In its motion to dismiss, Neurosurgical Associates claimed a lack of personal jurisdiction, arguing that the court “lacks jurisdiction over these Apportionment Defendants because the Apportionment Complaint is not in compliance with the requirements of ... § 52-102b (a).”\n\n\n Murphy & Lieponis, in its motion to dismiss, claimed that the trial court “lacks subject matter jurisdiction over the apportionment complaint” because the defendant served it with the apportionment complaint more than 120 days after the return date on the original complaint. (Emphasis added.)\n\n\n We are mindful that the ninety day extension granted by the trial court was uncontested. The lack of an objection, however, cannot operate as a waiver in this case because the apportionment defendants were not yet parties to the action and therefore had no notice that the extension was requested.\n\n", "ocr": true, "opinion_id": 7848611 }, { "author_str": "Borden", "per_curiam": false, "type": "030concurrence", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nBORDEN, J.,\nwith whom KATZ, J., joins, concurring and dissenting. I agree with the well reasoned analysis *39in part I of the majority opinion, in which the court holds that General Statutes § 52-102b (a),1 which requires service of an apportionment complaint within 120 days after the return date of the original complaint, *40is mandatory, and that § 52-102b (a) involves personal, rather than subject matter, jurisdiction. Furthermore, I agree with the majority that, under the facts of this case, no distinction is warranted in this respect between apportionment defendants Neurosurgical Associates of Connecticut, P.C., and Murphy and Lieponis, P.C. I disagree, however, with the majority’s conclusion that the trial courts properly granted their motions to dismiss.\nI also disagree with the conclusion reached in part II of the majority opinion that General Statutes § 52-190a,2 which requires a good faith investigation and *41certificate of good faith before bringing a medical malpractice action, does not apply to apportionment complaints under § 52-102b. I would conclude, to the contrary, that § 52-190a does apply to apportionment complaints brought under § 52-102b. I would also conclude that, under the facts of the present case, the trial court’s granting of the defendants’ motion for an extension of time of an additional ninety days to file an apportionment complaint was sufficient to relieve the defendants of the consequences of the mandatory 120 day time limit imposed by § 52-102b. I would, therefore, reverse the judgments of the trial courts.\nThis case involves the intersection of two separate but closely related statutes that grew out of the legislative program known as Tort Reform. Section 52-190a was enacted in 1986 by § 12 of No. 86-338 of the 1986 Public Acts, which is known as Tort Reform I. See Donner v. Kearse, 234 Conn. 660, 667, 662 A.2d 1269 (1995). A central part of Tort Reform I was the abolition *42of joint and several liability, and the substitution of proportional liability among different potential tortfea-sors. Id., 667-68. Section 52-102b was enacted in 1995 by No. 95-111 of the 1995 Public Acts, in order to address questions that had become apparent regarding how, procedurally, to implement the concept of proportional liability where the plaintiff in a tort action had not brought an action against all the potential tortfeasors and the original defendant sought to apportion liability and, therefore, damages, among those other potential tortfeasors. This case raises the question of how these two statutes should be interpreted where the other potential tortfeasors are health care providers.\nIn general terms, § 52-190a (a) requires that a party may not bring an action to recover damages from a health care provider based on a claim of malpractice without (1) a reasonable inquiry leading to a good faith belief that there was malpractice, and (2) a certificate filed by the party’s attorney that such an inquiry gave rise to such a belief. Under subsection (b) of § 52-190a, the party may petition the clerk of the court for an automatic ninety day extension of the statute of limitations in order to make the reasonable inquiry required by subsection (a).\nIn similarly general terms, § 52-102b provides that, if a defendant in a tort action believes that another person is or may be hable for a proportionate share of the plaintiffs damages, the defendant may serve an apportionment writ, summons and complaint on that other person and seek the relief of an apportionment of liability. This apportionment complaint must be filed within 120 days of the return day of the underlying tort complaint.\nWith this general background in mind, I first briefly recap the facts and procedures of this case. With a return date of June 19, 2001, the plaintiff, Stephen Los-*43tritto, commenced the underlying negligence action against the defendants, Community Action Agency of New Haven, Inc. (Community Action), and Elizabeth Barrett, for damages arising out of a motor vehicle accident. Community Action and Barrett sought to apportion liability to the plaintiffs health care providers, namely, Neurosurgical Associates of Connecticut, P.C., and its physician employee, Harry P. Engel (collectively, Neurosurgical Associates), and Muiphy and Lie-ponis, P.C., and its physician employee, Jonas Lieponis (collectively, Murphy & Lieponis), based on their apparent belief that some portion of the plaintiffs damages had been proximately caused by the medical malpractice of Neurosurgical Associates and Murphy & Lie-ponis. Therefore, on October 12, 2001, Community Action and Barrett moved, pursuant to § 52-190a (b); see footnote 2 of this opinion; for a ninety day extension of the 120 day time limit provided for by § 52-190a (a); see id.; claiming that, because the apportionment complaint that they intended to file would allege medical malpractice, they needed additional time to conduct the reasonable inquiry required by § 52-190a (a) to form a good faith belief that there was, in fact, medical malpractice and, therefore, to obtain the necessary good faith certificate.3 On October 15, 2001, the trial court granted the ninety day extension to January 19, 2002, and thereafter Community Action and Barrett served Neurosurgical Associates and Murphy & Lieponis, on January 14, 2002, and January 17, 2002, respectively, with an apportionment complaint, accompanied by the *44good faith certificate required by § 52-190a (a).4 Neither Neurosurgical Associates nor Murphy & Lieponis dispute that they were served within the ninety day extension granted by the court.5\n6Thus, in summary, within 120 days of the underlying negligence complaint, Community Action and Barrett moved the court for the additional ninety days provided for by § 52-190a (b), and served both Neurosurgical Associates and Murphy & Lieponis within the ninety day extension granted by the court.\nThe majority concludes, however, that the trial courts properly granted the motions to dismiss filed by Neuro-surgical Associates and Muiphy & Lieponis, for two reasons. First, the 120 day time limit imposed by § 52-102b (a) for filing is mandatory, and on the facts of this case, there is no equitable basis for excusing compliance with it. Second, the ninety day extension granted by the court was ineffectual. In this latter regard, the majority reasons that § 52-190a, which requires a reasonable inquiry and good faith certificate before bringing a medical malpractice action, does not apply to apportionment complaints because such a complaint is not an action “to recover damages” within the meaning of § 52-190a (a); it is, instead, an action for “apportionment of liability” within the meaning of § 52-102b (a).\nThis conclusion is a classic example of the adage, “No good deed goes unpunished.” Under the majority’s *45reasoning that § 52-102b does not encompass a medical malpractice action under § 52-190a (a), Community Action and Barrett, believing that the malpractice of the plaintiffs health providers may have contributed to his damages, should not have—as they did—made a reasonable inquiry before alleging medical malpractice, should not have—as they did—sought additional time from the court for that purpose, and should not have— as they did—filed a good faith certificate supporting their claims of medical malpractice. Instead, they simply should have filed an apportionment complaint against Neurosurgical Associates and Murphy & Lie-ponis, within the 120 days required by § 52-102b (a), without making any reasonable inquiry regarding whether there was such malpractice, without seeking to obtain a good faith certificate for a belief that there was such malpractice, and without seeking the court’s permission for an additional ninety day extension in order to make that inquiry and obtain that certificate. Had they done so, under the majority’s reasoning, they would have been “home free” with respect to their apportionment complaint—they could have made the serious allegations of medical malpractice that they ultimately made; see footnote 4 of this opinion; without any reasonable inquiry leading to a good faith belief in the truth of those allegations. Thus, the majority’s conclusion puts in place a perverse set of incentives: if a tort defendant seeks to apportion liability to a health care provider pursuant to § 52-102b, he should do so by not complying with the reasonable inquiry and good faith certificate requirements of § 52-190a; he should allege first, and investigate later. I do not think that the legislature, in enacting these two separate but closely related statutory provisions, intended such an irrational and bizarre result.6\n*46Instead, I think that we should interpret these provisions so that they form a coherent and rational, rather than an inconsistent and irrational, statutory scheme; Waterbury v. Washington, 260 Conn. 506, 557, 800 A.2d 1102 (2002); so that they make sense when read together; Interlude, Inc. v. Skurat, 266 Conn. 130, 143-44, 831 A.2d 235 (2003); and so that they carry out the closely related purposes of both, consistent with the limitations of their language; Hatt v. Burlington Coat Factory, 263 Conn. 279, 310-11, 819 A.2d 260 (2003). That is because we presume that the legislature intended sensible and rational results from the legislation that it has enacted. Interlude, Inc. v. Skurat, 253 Conn. 531, 539, 754 A.2d 153 (2000). Under that interpretation, when a defendant files an apportionment complaint pursuant to § 52-102b against a health care provider, the apportionment complaint is subject to the provisions of § 52-190a.\nI begin my analysis with an examination of the history and purposes of § 52-190a, which requires that, before *47allegations of medical malpractice are made, there must be a reasonable inquiry leading to a good faith belief and certificate that the allegations are in fact true. As I indicated previously, this provision was enacted in 1986 as part of Tort Reform I. It is apparent, from both its language and its legislative history,7 that it has several intertwined puiposes. Those purposes include: (1) to put some measure of control on what was perceived as a crisis in medical malpractice insurance rates; (2) to discourage frivolous or baseless medical malpractice actions; (3) to reduce the incentive to health care providers to practice unnecessary and costly defensive medicine because of the fear of such actions; (4) to reduce the emotional, reputational and professional toll imposed on health care providers who are made the targets of baseless medical malpractice actions; and (5) the replacement of proportional liability for the preexisting system of joint and several liability as a central part of Tort Reform I, so as to remove the health care provider as an unduly attractive deep pocket for the collection of all of the plaintiffs damages. See Conn. Joint Standing Committee Hearings, Judiciary, Pt. 1, 1986 Sess., pp. 212-26, 268-83, 320-21; Conn. Joint Standing Committee Hearings, Judiciary, Pt. 6, 1986 Sess., pp. 1968-93; Conn. Joint Standing Committee Hearings, Judiciary, Pt. 7,1986 Sess., pp. 2319-27; Insurance and Real Estate Committee Report on Health Care Liability Insurance in Compliance with Special Act 85-85, concerning Substitute House Bill No. 5110, entitled “An Act Establishing a Task Force on Health Care Liability Insurance.” Thus, of particular importance for the *48present case, the proponents of that part of Tort Reform I that resulted in § 52-190a considered apportionment of liability as an important part of its rationale. Section 3 (c) of Public Act 86-338 enacted the system of proportional liability, and is now codified at General Statutes § 52-572h (c).8\nBy 1995, however, it had become apparent that there were unanticipated procedural difficulties in implementing the system of proportional liability, particularly where the plaintiff had not brought an action against another potential tortfeasor whom the original defendant believed should share in the proportional liability. As the majority opinion aptly states, the legislature therefore enacted § 52-102b to implement the right to apportionment previously created by § 52-572h by clarifying the procedures by which other potential tortfea-sors could be made parties for purposes of apportionment. It is significant, moreover, that, to the extent that, as the majority also aptly states, there is a “symbiotic relationship between §§ 52-102b and 52-572h,” there is also an intimate relationship between §§ 52-102b and 52-190a, because part of the essential rationale for § 52-190a was the right to apportionment created by § 52-102b. Put another way, § 52-190a, as a legislative solution to the medical malpractice crisis, was premised in part on the associated enactment of proportional liability as a means of reducing the attractiveness of the medical profession’s deep pockets. Thus, in my view, §§ 52-102b and 52-190a should be read together, so as to form a rational and coherent whole.\n*49With this background in mind, I now turn to the specific provisions of §§ 52-190a (a) and 52-102b (a), and I begin, as I must, with their language. I acknowledge that certain of the language of § 52-190a (a), namely, “[n]o civil action shall be filed to recover damages”; (emphasis added); if read narrowly and literally, would not apply to an apportionment complaint filed under § 52-102b (a) because certain of that statute’s language, namely, “the demand for relief shall seek an apportionment of liability”; (emphasis added); if also read narrowly and literally, would not be within the meaning of § 52-190a (a) as an action “to recover damages . . . .” This is essentially the reasoning employed by the majority.91 would, however, read both statutes more broadly so as to effectuate their purposes and so that, taken together, they constitute a rational and coherent scheme applicable to the case in which the apportionment complaint is filed against a health care provider.\nThere is no question that a defendant who seeks to apportion liability to a potential tortfeasor who happens *50to be a medical provider must do so by filing an apportionment complaint pursuant to § 52-102b. The linguistic disconnect between the two statutes in such a case arises because § 52-102b was enacted nine years after § 52-190a, and it is clear that, in 1995, the legislature was focusing only on the paradigmatic case of a defendant who seeks to apportion liability to another potential tortfeasor, and did not focus on the question of apportionment when that other potential tortfeasor is a medical provider. The question, then, becomes in my view whether § 52-102b can appropriately be interpreted broadly enough so as to be consistent with the language of and accomplish the purposes of § 52-190a. In other words, can § 52-102b be interpreted so as appropriately to constitute an action “to recover damages” within the meaning of § 52-190a (a)? I think that it can and should be so interpreted.\nI turn, therefore, first to the language of § 52-102b, and I conclude that the language used is broad enough so as to be appropriately interpreted to carry out the purposes of § 52-190a. Although § 52-102b (a) refers, as the prayer for relief of such a complaint, to “an apportionment of liability,” its predicate is that the complaint be served “upon a person not a party to the action who is or may be hable . . . for a proportionate share of the plaintiffs damages . . . .” (Emphasis added.) Thus, functionally, apportionment of liability and apportionment of damages go hand in hand. Indeed, that is made explicit by § 52-102b (f), which provides: “This section shall be the exclusive means by which a defendant may add a person who is or may be liable pursuant to section 52-572h for a proportionate share of the plaintiffs damages as aparty to the action.” (Emphasis added.) We must turn, therefore, to § 52-572h (c) and (d),10 which provide, in a case involving apportionment, *51the method by which to calculate each party’s “proportionate share of the recoverable economic damages and the recoverable noneconomic damages(emphasis added) General Statutes § 52-572h (c); and “[t]he proportionate share of damages for which each party is liable . . . .” (Emphasis added.) General Statutes § 52-572h (d).\nSecond, subsection (b) of § 52-102b provides in relevant part: “The apportionment complaint shall be equivalent in all respects to an original writ, summons and complaint, except that it shall include the docket number assigned to the original action and no new entry fee shall be imposed. . . .” This language supports the notion that § 52-102b ought to be read in conjunction with § 52-190a. Indeed, the phrase “equivalent in all respects to an original writ, summons and complaint,” strongly suggests that a defendant seeking to implead a third party under § 52-102b (b) must comply with the same procedures as a plaintiff serving the original complaint under §§ 52-572h and 52-190a. In any action to recover damages from a health care provider, the “complaint or initial pleading shall contain a certificate” of good faith. General Statutes § 52-190a (a). Thus, if *52an initial complaint against a health care provider must be accompanied by a certificate of good faith, and an “apportionment complaint shall be equivalent in all respects to an original writ, summons and complaint”; (emphasis added) General Statutes § 52-102b (b); then an apportionment complaint against a health care provider, even if read literally, must be accompanied by a certificate of good faith.\nIn addition, the language of § 52-102b is certainly capacious enough to encompass a meaning consistent with an action “to recover damages” contained in § 52-190a (a), because an original writ against the health care provider would certainly be viewed as a claim for recovery of money damages. This conclusion is buttressed by the reference to § 52-572h in the first sentence of § 52-102b (a): “A defendant in any civil action to which section 52-572h applies . . . .” This reference to § 52-572h runs counter to the majority’s attenuated distinction between the phrases an action “to recover damages” and “apportionment of liability,” because the scope and tenor of § 52-572h applies to actions to recover damages. Indeed, § 52-572h is replete with references to the word “damages.” Section 52-572h (a) defines “ ‘[ejconomic damages,’ ” “ ‘noneconomic damages,’ ” “ ‘recoverable economic damages,’ ” and “ ‘recoverable noneconomic damages.’ ” The remainder of the statute then goes on to discuss damages in varying scenarios. Thus, if the procedures for filing an apportionment complaint under § 52-102b are applicable only to actions governed by § 52-572h, and if the remedies available under § 52-572h focus solely on “damages,” then it seems to me that the legislature contemplated apportionment complaints to not only apportion liability, but also to shift damages. Any other conclusion elevates form over substance.11\n*53Along these same lines, it is undisputed that the relevant limitation period for negligence actions is contained in General Statutes § 52-584, which provides in relevant part: “No action to recover damages . . . caused by negligence . . . shall be brought but within two years . . . .” (Emphasis added.) Section 52-102b (b) permits an apportionment defendant to use that limitation period as a defense if the defendant who served the apportionment complaint could have done so. Thus, if § 52-102b (b) permits an apportionment defendant to use § 52-584 as a defense, and § 52-584, by its very language, is only a defense to actions seeking to recover damages, then an apportionment complaint filed pursuant to § 52-102b ought to be regarded as the functional equivalent of an action “to recover damages . . . .” General Statutes § 52-190a (a). Put another way, the majority gives an apportionment defendant the best of both worlds: it permits an apportionment defendant to use a defense that is reserved only for actions seeking to recover damages; while at the same time it allows an apportionment defendant to avoid the requirements of § 52-190a because, in the majority’s view, it is not an action to recover damages. This is further evidence that, when the apportionment defendant is a health care provider, the legislature intended an apportionment complaint to include the good faith investigation and certificate requirements of § 52-190a.\nI conclude, therefore, that the language in § 52-102b (a) on which the majority so heavily relies, namely, an action “to recover damages,” does not exclude an apportionment complaint against a health care provider. Read in context, and together with §§ 52-102b (b) and (f), and 52-572h (d), subsection (a) of § 52-102b is broad enough to mean, and was intended to mean, *54an action to apportion damages against a health care provider so as to trigger the requirement of § 52-190a.\nFinally, in my view, most, if not all, of the purposes of § 52-190a (a) would be served by considering an apportionment complaint against a health care provider as coming within the strictures of § 52-190a, and a contrary conclusion would be wholly inconsistent with those purposes. As I have indicated previously, those purposes are: (1) to control medical malpractice insurance rates;12 (2) to discourage baseless medical malpractice actions; (3) to reduce the practice of unnecessary and costly defensive medicine because of the fear of such actions; (4) to reduce the various personal and professional tolls imposed on health care providers by such actions; and (5) to remove the health care provider as an unduly attractive deep pocket for the collection of all of the plaintiffs damages.\nIt is arguable, at least, that requiring compliance with § 52-190a for apportionment complaints against health care providers would help control medical malpractice insurance rates. It is true that, because such a complaint *55does not seek the actual payment of money damages by the provider’s carrier, there would be no occasion for a duty to indemnify. It is also true, however, that we have not, as yet, been confronted with the question of whether such a complaint would trigger a duty to defend. Nonetheless, because the duty to defend is broader than the duty to indemnify; Board of Education v. St. Paul Fire & Marine Ins. Co., 261 Conn. 37, 40, 801 A.2d 752 (2002); the provider would, depending of course on the language of the policy, certainly have a powerful argument for the duty to defend. In the event such a duty exists, the costs thereof would likely be factored into the insurance rates.\nThe next three purposes would also be served. It is clear to me that requiring a defendant to make a reasonable investigation, and secure a good faith certificate, before alleging malpractice against a health care provider in an apportionment complaint, would discourage baseless allegations, help reduce the practice by providers of unduly defensive medicine, and help reduce the toll on such providers taken by such allegations. The final purpose—to remove the incentive to view the provider as a potential deep pocket—would neither be served nor disserved by imposing the requirement.\nTaking the contrary view, as the majority does, moreover, would be contrary to those purposes. From the viewpoint of the provider, who has to defend himself against such allegations of malpractice, it would make little difference whether the allegations come in the form of a complaint by the plaintiff or an apportionment complaint by the defendant—in either instance, the provider is haled into court without a good faith predicate, and is required to defend himself against a factual claim of medical malpractice.\nI conclude, therefore, that, on the basis of both the language and purposes of § 52-190a, taken together, an *56apportionment complaint against a health care provider, based on allegations of malpractice, should appropriately be considered as coming within the meaning of § 52-102b.13 Consequently, I turn next to the question of whether, in the present case, Community Action and Barrett have made a sufficient showing of equitable considerations to relieve them of the consequences of their failure to comply with the mandatory nature of the 120 day time limit imposed by that provision. I would conclude that they have done so.\nSimply put, it was entirely reasonable, in my view, for these two defendants in a commonplace motor vehicle negligence case, to seek an additional ninety days from the court so as to make a reasonable investigation before making such serious allegations of malpractice against Neurosurgical Associates and Murphy & Lie-ponis. They represented to the court that such an “extension of time is necessary to allow the defendants an opportunity to conduct a reasonable inquiry as required by Connecticut General Statute[s] § 52-190[a] (a) et seq., to determine whether or not there is a good faith basis for a claim of negligence against any health care providers who rendered care and treatment to the plaintiff . . . .” We should encourage, rather than *57discourage, defendants who need time beyond the statutory 120 days before making serious allegations of medical malpractice in this procedural posture, to seek a reasonable amount of time to be sure that they have a good faith basis to do so. I would, therefore, conclude that, although the 120 day time limit of § 52-102b is mandatory, the court was justified in extending it by ninety days in the present case.14\nI therefore respectfully dissent, and would reverse the judgments of the trial courts dismissing the apportionment complaint.\n\n General Statutes § 52-102b provides: “(a) A defendant in any civil action to which section 52~572h applies may serve a. writ, summons and complaint upon a person not a party to the action who is or may be liable pursuant to said section for a proportionate share of the plaintiffs damages in which case the demand for relief shall seek an apportionment of liability. Any such writ, summons and complaint, hereinafter called the apportionment complaint, shall be served within one hundred twenty days of the return date specified in the plaintiffs original complaint. The defendant filing an apportionment complaint shall serve a copy of such apportionment complaint on all parlies to the original action in accordance with the rules of practice of the Superior Court on or before the return date specified in the apportionment complaint. The person upon whom the apportionment complaint is served, hereinafter called the apportionment defendant, shall be a party for all purposes, including all purposes under section 52-572h.\n“(b) The apportionment complaint shall be equivalent in all respects to an original writ, summons and complaint, except that it shall include the docket number assigned to the original action and no new entry fee shall be imposed. The apportionment defendant shall have available to him all remedies available to an original defendant including the right to assert defenses, set-offs or counterclaims against any party. If the apportionment complaint is served within the time period specified in subsection (a) of this section, no statute of limitation or repose shall be a defense or bar to such claim for apportionment, except that, if the action against the defendant who instituted the apportionment complaint pursuant to subsection (a) of 1his section is subject to such a defense or bar, the apportionment defendant may plead such a defense or bar to any claim brought by the plaintiff directly against the apportionment defendant pursuant to subsection (d) of this section.\n“(c) No person who is immune from liability shall be made an apportionment defendant nor shall such person’s liability be considered for apportionment purposes pursuant to section 52-572h. If a defendant claims that the negligence of any person, who was not made a party to the action, was a proximate cause of the plaintiffs injuries or damage and the plaintiff has previously sett led or released the plaintiffs claims against such person, then a defendant may cause such person’s liability to be apportioned by filing a notice specifically identifying such person by name and last known address and the fact that the plaintiffs claims against such person have been settled or released. Such notice shall also set forth the factual basis of the defendant’s claim that tire negligence of such person was a proximate cause of the plaintiffs injuries or damages. No such notice shall be required if such person with whom the plaintiff settled or whom the plaintiff released was previously a party to the action.\n“(d) Notwithstanding any applicable statute of limitation or repose, the plaintiff may, within sixty days of the return date of the apportionment *40complaint served pursuant to subsection (a) of this section, assert any claim against the apportionment defendant arising out of the transaction or occurrence that is the subject matter of the original complaint.\n“(e) When a counterclaim is asserted against a plaintiff, he may cause a person not a party to the action to be brought in as an apportionment defendant under circumstances which under this section would entitle a defendant to do so.\n“(f) This section shall be the exclusive means by which a defendant may add a person who is or may be liable pursuant to section 52-572h for a proportionate share of the plaintiffs damages as a party to the action.\n“(g) In no event shall any proportionate share of negligence determined pursuant to subsection (f) of section 52-572h attributable to an apportionment defendant against whom the plaintiff did not assert a claim be reallocated under subsection (g) of said section. Such proportionate share of negligence shall, however, be included in or added to the combined negligence of the person or persons against whom the plaintiff seeks recovery, including persons with whom the plaintiff settled or whom the plaintiff released under subsection (n) of section 52-572h, when comparing any negligence of the plaintiff to other parties and persons under subsection (b) of said section.”\n\n\n General Statutes § 52-190a provides: “(a) No civil action shall be filed to recover damages resulting from personal injury or wrongful death occurring on or after October 1, 1987, whether in tort or in contract, in which it is alleged that such injury or death resulted from the negligence of a health care provider, unless the attorney or party filing the action has made a reasonable inquiry as permitted by the circumstances to determine that there are grounds for a good faith belief that there has been negligence in the care or treatment of the claimant. The complaint or initial pleading shall contain a certificate, on a form prescribed by the rules of the superior court, of the attorney or party filing the action that such reasonable inquiry gave rise to a good faith belief that grounds exist for an action against each named defendant. For purposes of this section, such good faith may be *41shown to exist if the claimant or his attorney has received a written opinion, which shall not be subject lo discovery by any party except for questioning the validity of the certificate, of a similar health care provider as defined in section 52-184c, which similar health care provider shall be selected pursuant to the provisions of said section, that there appears to be evidence of medical negligence. In addition to such written opinion, the court may consider other factors with regard to the existence of good faith. If the court determines after the completion of discovery, that such certificate was not made in good faith and that no justiciable issue was presented against a health care provider that fully cooperated in providing informal discovery, the court upon motion or upon its own initiative, shall impose upon the person who signed such certificate, a represented party or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion or other paper, including a reasonable attorney's fee. The court may also submil, tire matter to the appropriate authority for disciplinary review of the attorney if the claimant’s attorney submitted the certificate.\n“(b) Upon petition to the clerk of the court where the action will be filed, an automatic ninety-day extension of the statute of limitations shall be granted 1o allow 1he reasonable inquiry required by subsection (a) of this section. This period shall be in addition to other tolling periods.”\n\n\n It is true, of course, that Community Action and Barrett did not strictly comply with § 52-190a (b), because they moved the court for the additional ninety days, rather than, as subsection (b) provides, simply petitioning the clerk for an “automatic ninety-day extension of the statute of limitations” that, the statute also provides, “shall be granted to allow the reasonable inquiry required by subsection (a) of this section.” It would be bizarre to conclude, however, and neither Neurosurgical Associates nor Murphy & Lieponis contends, that the court did not have the power to grant what the statute commands the clerk to grant.\n\n\n In their apportionment complaint, Community Action and Barrett alleged that Neurosurgical Associates and Muiphy & Lieponis had committed the following acts of medical malpractice: failure to evaluate the plaintiffs progressive neurological deterioration; failure to diagnose the plaintiffs condition; failure to treat the plaintiff properly; failure to use appropriate preoperative and intraoperative preparations; and failure to employ proper surgical techniques and instruments.\n\n\n Murphy & Lieponis, in its brief to this court, specifically “acknowledges that the apportionment complaint was served before the expiration of that [ninety] day period” granted by the court, and Neurosurgical Associates makes no claim in this court that it was not served within the ninety day period.\n\n\n I note 1hat, in rejecting my statutory analysis, the majority, when relying on No. 03-154 of the 2003 Public Acts (P.A. 03-154), relies only on the first sentence of that act, which provides: “The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its *46relationship to other statutes.” I perceive no inconsistency between that sentence and this court’s decision in State v. Courchesne, 262 Conn. 537, 577, 816 A.2d 562 (2003), in which this court held that, in performing the judicial task of statutory interpretation, we always begin with the text of the statute and that the text is the most important factor involved in that process. Thus, the majority states only that I have given insufficient weight to that text. My response is that the majority has given too much weight to the narrow reading of the text of § 52-190a, and too little weight to the purposes of that statute and its relationship with other tort related statutes.\nThe majority does not, however, rely on the second sentence of P.A. 03-154, which provides: “If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.” It is clear to me that, when reading §§ 52-102b and 52-190a together, as P.A. 03-154 requires (meaning of statute in first instance to “be ascertained from the text of the statute itself and its relationship to other statutes” [emphasis added]), § 52-190a is not plain and unambiguous, and that precluding its applicability to an apportionment complaint will “yield [an] absurd or unworkable [result] . . . .” P.A. 03-154. Therefore, I conclude that a proper application of the process of statutory interpretation in this instance is not constrained by P.A. 03-154.\n\n\n The particular legislative history to which I refer includes the committee hearings on the bills that eventually became Tort Reform I. We have long recognized testimony in committee hearings as relevant to the meaning of legislative language, because it indicates the problems that the legislature was attempting to resolve in enacting the legislation. See Burke v. Fleet National Bank, 252 Conn. 1, 17, 742 A.2d 293 (1999); Toise v. Rowe, 243 Conn. 623, 630, 707 A.2d 25 (1998).\n\n\n General Statutes § 52-572h (c) provides: “In a negligence action to recover damages resulting from personal injury, wrongful death or damage to properly occurring on or after October 1, 1987, if the damages are determined to be proximately caused by the negligence of more than one party, each party against whom recovery is allowed shall be liable to the claimant only for such parly’s proportionate share of the recoverable economic damages and the recoverable noneconomic damages except as provided in subsection (g) of this section.”\n\n\n This naiTOW reading places a heavy burden on the legislature when drafting a statute, and ignores the rule of statutory construction that requires this court to interpret statutes so as to create one harmonious body of law. Interlude, Inc. v. Skurat, supra, 266 Conn. 143. For instance, General Statutes § 62-584 provides in relevant part: “No action to recover damages . . . caused by negligence . . . shall be brought but within two years . . . .” Read narrowly and literally, that language suggests that “no action” may ever exceed that two year limitation period. In addition, § 52-584 makes no reference to § 52-190a, and does not contain limiting language such as “except as otherwise provided.” Yet, § 52-190a (b) expressly permits parties to extend the limitation period by ninety days in order to obtain a certificate of good faith. It would be untenable to argue that the legislature’s failure to provide excepting language in § 52-584 would somehow render § 52-190a inapplicable to § 52-584. The majority concludes, however, that the legislature’s use of the phrase “ ‘apportionment of liability,’ ” as opposed to, say, “apportionment of damages” or “apportionment of liability and damages,” either of which the legislature plainly meant, somehow removes outright § 52-102b from the statutory scheme governing negligence actions seeking damages.\n\n\n General Statutes § 52-572h provides in relevant part: “(c) In a negligence action to recover damages resulting from personal injury, wrongful death or damage to property occurring on or after October 1, 1987, if the damages *51are determined to be proximately caused by the negligence of more than one party, each party against whom recovery is allowed shall be liable to the claimant only for such party’s proportionate share of the recoverable economic damages and the recoverable noneconomic damages except as provided in subsection (g) of this section.\n“(d) The proportionate share of damages for which each party is liable is calculated by multiplying the recoverable economic damages and the recoverable noneconomic damages by a fraction in which the numerator is the party’s percentage of negligence, which percentage shall be determined pursuant to subsection (f) of this section, and the denominator is the total of the percentages of negligence, which percentages shall be determined pursuant to subsection (f) of this section, to be attributable to all parties whose negligent actions were a proximate cause of the injury, death or damage to property including settled or released persons under subsection (n) of this section. Any percentage of negligence attributable to the claimant shall not be included in the denominator of the fraction. . . .”\n\n\n Indeed, the language “the demand for relief shall seek an apportionment of liability” in § 52-102b (a) would serve the same purpose if the legislature had written “the demand for relief shall seek an apportionment of damages.” *53I see no persuasive reason for the majority’s unduly narrow reading of that language in the present case.\n\n\n The majority dismisses this contention as “speculative.” I do not say, however, as the majority suggests, that an apportionment complaint against a health care provider will trigger a duty to defend; I acknowledge that this court has not decided that question. To cast the point aside as “speculative,” however, simply misses the point, because the question of whether a duty to defend will be triggered necessarily depends on the contractual terms of the insurance policy at issue. Merely because a duty to defend might be triggered, as opposed to will be triggered, by an apportionment complaint, does not render the contention unworthy of consideration. My point is that a health care provider has a powerful argument for a duty to defend when an apportionment complaint is filed against him—a proposition that hardly can be deemed “speculative.”\nIndeed, this is the only argument presented in this concurring and dissenting opinion to which the majority responds at all. The majority does not, for example, discuss: why the other identified purposes of § 52-190a are not furthered by requiring its application to an apportionment complaint; why the provisions of § 52-102b (b) do not require such an application; or why the provisions of § 52-584 do not also require such an application.\n\n\n Indeed, in the context of tort reform legislation, we have recently followed the same principle of statutory interpretation of reading facially disparate statutory provisions “together to create a harmonious body of law . . . and ... to avoid conflict between them.” (Internal quotation marks omitted.) Collins v. Colonial Penn Ins. Co., 257 Conn. 718, 742, 778 A.2d 899 (2001). In Collins, we harmonized General Statutes §§ 52-572h and 38a-336, by interpreting the phrase, “legally entitled to recover as damages,” to include statutory apportionment of a contractual claim for uninsured motorist benefits, despite the provision that apportionment was not to include liability on “any basis other than negligence . . . .” (Internal quotation marks omitted.) Id., 740. This was because “[t]he uninsured motorist statutes and regulations incorporate the negligence law of liability and damages involving claims in which joint tortfeasors are present”; id., 741; and because to do so “allow[ed] for the principles guiding Tort Reform II [Public Acts 1987, No. 87-227] to be applied equitably.” Id., 742.\n\n\n The majority itself recognized that there is a split of authority in the Superior Court as to whether an apportionment complaint against a provider requires a good faith certificate. See footnote 10 of the majority opinion. The defendants should not be penalized for following a reasonable interpretation of many of our trial court judges regarding an unsettled issue in our law.\n\n", "ocr": true, "opinion_id": 7848612 } ]

"2004-07-16"

[ "270 Conn. 915" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nThe plaintiffs petition for certification for appeal from the Appellate Court, 83 Conn. App. 106 (AC 24017), is denied.\n*916Decided July 16, 2004\nChristopher B. Kennedy, pro se, in support of the petition.\n", "ocr": true, "opinion_id": 7848762 } ]

"2005-01-03"

[ "272 Conn. 912" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nThe defendants’ petition for certification for appeal from the Appellate Court, 85 Conn. App. 455 (AC 23009), is denied.\n", "ocr": true, "opinion_id": 7848946 } ]

"2006-10-31"

[ "280 Conn. 936" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nThe defendant’s petition for certification for appeal from the Appellate Court, 97 Conn. App. 444 (AC 26646), is denied.\n", "ocr": true, "opinion_id": 7849707 } ]

"2009-12-09"

[ "294 Conn. 919" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nThe petition by the respondent mother for certification for appeal from the Appellate Court, 117 Conn. App. 710 (AC 29890), is denied.\n*920Decided December 9, 2009\nDavid J. Reich, in support of the petition.\nColleen B. Valentine, assistant attorney general, in opposition.\nVERTEFEUILLE, J., did not participate in the consideration of or decision on this petition.\n", "ocr": true, "opinion_id": 7850467 } ]

"1983-10-11"

[ "231 U.S. App. D.C. 192", "719 F.2d 436" ]

[ { "author_str": "Megowan", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nOpinion for the Court filed by Senior Circuit Judge MeGOWAN.\nMeGOWAN, Senior Circuit Judge;\nThis case concerns the amount of credit electric power plants and other major sources of air pollution may receive for the height of their emissions stacks in calculating limitations on their emission of pollutants.\nUnder the Clean Air Act as amended (“the Act”) and its regulations, emissions limitations for each such source are fixed on the basis of local, ground-level concentrations of pollutants, which cannot exceed certain national standards or incremental increase limitations. Since taller stacks tend to disperse pollutants over a greater area, a utility or other source can lower the ambient pollution concentrations not only by reducing the amount of pollutants it emits into the air, but also by raising the height of its stack. After the basic provisions of the Act were passed in 1970, many chose the latter route. In 1977 amendments to the Act, Congress declared that such tall stacks and other dispersion techniques were not to be taken into account in calculating the limitations on emissions imposed by the Act. 42 U.S.C. § 7423 (Supp. V 1981). Rather, pollution standards were to be achieved by direct limitations on emissions. The present case brings before us final regulations issued by the Environmental Protection Agency (EPA) to implement this provision.\nThe regulations at issue are detailed and somewhat complex. Generally speaking, under the 1977 amendments credit for stack height in calculating emissions limitations is limited to the height dictated by “good engineering practice” (GEP). Id. § 7423(a)(1). This height was defined by Congress to be that necessary to ensure against certain kinds of localized atmospheric disturbance created by the source itself or nearby obstacles, and resulting in excessive concentrations of pollutants in the immediate vicinity of the source. Id. § 7423(c). The regulations under review define a number of the statutory terms, such .as “nearby” and “excessive,” provide various methods for determining GEP height and determine when each may be used, implement a statutory bar on credit for use of “dispersion techniques” other than stack height, define a statutory “grandfather” clause for pre-1970 stacks, and provide a timetable for implementation of the regulations by the states, which are the primary enforcers of the Act.\nWe have reviewed carefully the specific provisions challenged here. Among them we find certain aspects of the regulatory scheme to be contrary to the terms of the statute and others to be arbitrary and capricious exercises of the discretion conferred on the EPA by the Act. These provisions must therefore be overturned. We remand certain other provisions for further consideration by the agency in light of our discussion here. The remainder of the challenged regulations we uphold.\nI\nThe events leading up to the enactment of the section of the Clean Air Act Amendments of 1977 involved in this case have been described in our opinion in Alabama Power Co. v. Costle, 636 F.2d 323, 388-91 (D.C.Cir.1979),1 and in the House committee *196report accompanying those amendments, H.R.Rep. No. 294, 95th Cong., 1st Sess. 81-92 (1977), [U.S.Code Cong. & Admin.News 1977, p. 1077] [hereinafter cited as House Report]. Briefly, under the drastic overhaul of the Clean Air Act undertaken in 1970, EPA was directed to prescribe national ambient air quality standards for various pollutants. 42 U.S.C. § 1857c-4 (1976). Upon promulgation of an air quality standard, each state was required to adopt and submit to EPA a state implementation plan providing for attainment and enforcement of the standard. Id. § 7410(a).\nInitially, EPA approved state plans that authorized, in place of direct limitations on emissions, the use of tall stacks to meet air quality standards. EPA also allowed the use of other dispersion techniques called supplemental or intermittent control systems, which are programs that vary the release of pollutants over time depending on whether meteorological conditions favor dispersion. EPA’s policy was overturned by the courts, which; led by the Fifth Circuit, ruled that the Act allowed reliance on dispersion techniques only after implementation of “the maximum degree of emission limitation achievable.” NRDC v. EPA, 489 F.2d 390, 410 (5th Cir.1974), rev’d on other issues sub nom. Train v. NRDC, 421 U.S. 60, 95 S.Ct. 1470, 43 L.Ed.2d 731 (1975); see Kennecott Copper Corp. v. Train, 526 F.2d 1149, 1151-60 (9th Cir.1975), cert. denied, 425 U.S. 935, 96 S.Ct. 1665, 48 L.Ed.2d 176 (1976); Big Rivers Electric Corp. v. EPA, 523 F.2d 16, 20-22 (6th Cir.1975), cert. denied, 425 U.S. 934, 96 S.Ct. 1663, 48 L.Ed.2d 175 (1976). “Informed as well as chastened by these judicial decisions,” Alabama Power, 636 F.2d at 390, EPA in 1976 issued guidelines that, while placing primary emphasis on emissions reductions, allowed the use of tall stacks to meet ambient standards in two situations: (1) where the source was already using “the best available emission control technology,” or (2) where use of such technology would be “economically unreasonable or technologically unsound.” Stack Height Increase Guideline, 41 Fed. Reg. 7450, 7451-52 (1976) [hereinafter cited as 1976 Guideline].2\nCongress emphatically rejected this approach in the 1977 amendment of the Act that is the subject of the present controversy. In introducing the bill on the Senate floor, Senator Muskie criticized the 1976 guidelines for allowing any use of tall stacks whatsoever in meeting ambient standards: “Far from prohibiting the construction of tall stacks or the use of intermittent controls, the guidelines provide that once minimal emission control requirements are met, polluters are encouraged to substitute unlimited stack height for any further control of emissions.” 123 Cong.Rec. 18,027 (1977). The mood in the House was the same, id. at 16,203 (remarks of Rep. Wax-man, a sponsor of the House bill) (“The committee has unequivocally rejected the use of tall stacks and intermittent controls as a final means of compliance with the Clean Air Act’s requirements.”), and in section 123 of the amended Act Congress banned virtually all reliance on tall stacks or “any other dispersion technique” in achieving compliance with ambient air quality standards, 42 U.S.C. § 7423(a) (Supp.V 1981).\nCongress did not, however, actually prohibit tall stacks or limit their height; in fact, section 123 specifically enjoins the EPA Administrator (“the Administrator”) from prohibiting any increase in stack height or restricting the height of any stack in any manner. Id. § 7423(c). Rather, the law limits the credit that may be obtained for such stack height in determining whether the plant will cause ambient air stan*197dards to be violated or increase pollution by too large an increment. The credit system is based on techniques of modeling whereby, via mathematical or small-scale physical demonstrations, a plant’s emissions can be assumed to emerge from a certain stack height and then mapped as they fall to earth in order to see their effect on ambient pollution. Thus, section 123 is intended to eliminate any credit a plant might receive for the dispersive effects of a tall stack in the calculation of its emissions limitations, although the stack itself remains in place.\nThere were essentially three reasons for Congress’s refusal to allow reliance on tall stacks and intermittent control measures. First, dispersion techniques do not reduce the amount of pollution in the air, but merely spread it around, exporting it to other areas where it is too late to control the problem, and exposing previously pristine areas to contamination. See, e.g., House Report, supra p. 440, at 84-85. Second, the long-range transport of certain pollutants was also linked to the formation of “acid rain,” which is precipitation containing acidic derivations of sulfur oxide and nitrogen oxide emissions. Acid rain was thought responsible for reduced soil and water productivity in certain areas, particularly the Northeast and Canada. See, e.g., id. at 83-84, 85-86; 123 Cong.Rec. 18,026 (1977) (remarks of Sen. Muskie). Third, intermittent control systems, which are dependent on synchronizing plant operation with weather conditions, were thought to be unreliable and virtually impossible to enforce. See, e.g., id.; House Report, supra p. 440, at 82-83, 87.\nIn rejecting the limited permission to use dispersion techniques contained in the 1976 guidelines, however, Congress largely adopted the distinction drawn in those guidelines, and in a 1973 stack height proposal, between stack heights that would be allowed without question and those that would be regarded as a dispersion technique. See id. at 93 (statute “affirm[s]” the standard used by the Administrator). This distinction is the main battleground of the present litigation. The guidelines had based the distinction on “good engineering practice,” which the preamble to the 1973 proposal defined as follows:\n[A] stack which conforms to good engineering practice is sufficiently tall that emissions from the stack are not significantly affected by the atmospheric down-wash, eddies, or wakes created by the facility or nearby structures and terrain. Emissions from stacks which are shorter than required by good engineering practice often can cause excessively high ground level concentrations and nuisances within, and in the immediate vicinity of, the facility.\nUse of Supplementary Control Systems and Implementation of Secondary Standards, 38 Fed.Reg. 25,697, 25,700 (1973) (proposed rules) [hereinafter cited as 1973 Guidelines]. Congress appears to have taken the main elements of this statement in its definition of good engineering practice height. Section 123 defines that height as\nthe height necessary to insure that emissions from the stack do not result in excessive concentrations of any air pollutant in the immediate vicinity of the source as a result of atmospheric down-wash, eddies and wakes which may be created by the source itself, nearby structures or nearby terrain obstacles.\n42 U.S.C. § 7423(c) (Supp. V 1981).\nAs the quoted language from the 1973 proposal suggests, downwash, eddies, and wakes are caused by the wind hitting structures or other obstacles near the stack. The turbulence created in the wake of the obstacles tends to suck a plume of emissions down to the earth before it has had a chance to disperse, resulting in inordinately high pollution concentrations near the plant. See also House Report, supra p. 440, at 93, [U.S.Code Cong. & Admin.News 1977, p. 1171] (“Without some provision for stack height, a plume released downwind of such a structure might become engulfed by turbulent eddys [sic] within the wake of the structure.”); 122 Cong.Rec. 34,384 (1976) (remarks of Sen. Muskie) (“This is necessary in order to allow good plume rise with*198out downwashing the plume onto the local area.”).\nWhile the statute generally left the determination of GEP stack height to regulations to be promulgated by the EPA Administrator, it set an upper limit of two- and-one-half times the height of the stack’s source. 42 U.S.C. § 7423(c) (Supp. V 1981). This, too, was taken from the 1973 and 1976 guidelines. See 1976 Guideline, supra p. 440, at 7451-52; 1973 Guidelines, supra p. 441, at 25,700, 25,701. The formula was seen as codifying “the stack height-nearby structure relationship that has been looked to historically as a responsible way of dealing with the problem of aerodynamic down-wash.” House Report, supra p. 440, at 93, [U.S.Code Cong. & Admin.News 1977, p. 1171]. While the guidelines used the two- and-one-half-times standard as the standard GEP stack height, however, Congress was clear in its conference report that the statutory formula was generally intended to be an upper limit, and that if EPA found that the problem of downwash, eddies, and wakes could be prevented by stacks of less than two-and-one-half times facility height, it was to give credit only for the lower height. 123 Cong.Rec. 27,071 (1977) (Clean Air Conference Report (1977): Statement of Intent; Clarification of Select Provisions). Nevertheless, like the guidelines, the statute provides that a plant operator can get credit for a greater-than-formula height by demonstrating to the satisfaction of the Administrator that a greater height is needed to prevent the downwash problem described in the Act. 42 U.S.C. § 7423(c) (Supp. V 1981).\nIn barring any credit for tall stacks and other dispersion techniques, Congress believed it was merely reaffirming a command it had given in the 1970 Clean Air Act amendments. It “intended to ratify the general thrust, if not the specific holdings, of the three U.S. courts of appeals” that had interpreted the earlier Act to bar primary reliance on such techniques. House Report, supra p. 440, at 91, [U.S.Code Cong. & Admin.News 1977, p. 1170]. As a result, the section’s grandfather clause provides an exemption only for stacks “in existence” or dispersion techniques “implemented” before the date of the 1970 amendments, and not for those built between 1970 and the enactment of the 1977 amendments. 42 U.S.C. § 7423(a) (Supp. V 1981); see House Report, supra p. 440, at 93.\nSection 123 directs EPA to issue regulations implementing these provisions by February 7, 1978, 42 U.S.C. § 7423(c) (Supp. V 1980) (“[n]ot later than six months after August 7, 1977”), and the states are directed to revise their applicable implementation plans, as necessary, within nine months of the promulgation of EPA’s regulations, id § 7401 note (the later of one year after enactment of the Act or nine months after promulgation of EPA regulations). Proposed regulations were not issued until January 12,1979, however. Stack Height Regulations, 44 Fed.Reg. 2608 (1979). Under a court-ordered timetable, Sierra Club v. Gorsuch, No. 81-0094 (D.D.C. June 22, 1981, modified Aug. 20, 1981, and Feb. 17, 1982), EPA then issued a revised set of proposed regulations on October 6, 1981, 46 Fed.Reg. 49,814 (1981), and finally issued final regulations on February 8, 1982, 47 Fed.Reg. 5864 (1982) (to be codified in 40 C.F.R. §§ 51.1, 51.12, 51.18). Petitioners NRDC and Sierra Club filed motions for reconsideration on various grounds, all of which were denied. Petitions for review were then filed in this court under the Act’s sixty-day review provision. 42 U.S.C. § 7607(b) (Supp. V 1981).\nThe core of the new regulations is the determination of GEP stack height. The rules provide three methods; a source operator may use whichever of the methods yields the greatest GEP height. First, a “de minimis height” of sixty-five meters is permitted for all sources regardless of the size or location of any structures or terrain features. 47 Fed.Reg. at 5868 (to be codified at 40 C.F.R. § 51.1(h)(1)). The Administrator stated that this height represented “a reasonable estimate of the height needed to insure that emissions will not be affected by common ground-level meteorological phenomena which may produce excessive pollutant concentrations.” Id at 5865. *199The de minimis feature is not challenged in this case.\nSecond, the regulations provide two mathematical formulas, one to be used by-stacks in existence on January 12,1979, the date of publication of EPA’s original proposed rules, and the other for stacks whose construction commenced after that date. The formula to be used by the earlier stacks is what the Administrator termed “the traditional engineering formula of two and one-half times the height of the nearby structure” (hereinafter called the 2.5 Rule). Id. The second formula is a refinement of the first that is intended to reflect the reduced height needed to surmount the less severe downwash effects produced by tall, thin structures. See 46 Fed.Reg. at 49,815. The refined formula gives credit for the height of the nearby structure plus one- and-one-half times the lesser of the height or width of the structure (hereinafter called the 1 + 1.5 Rule). 47 Fed.Reg. at 5868 (to be codified at 40 C.F.R. § 51.1(H)(2)(H)). Under either formula, only “nearby” structures may be used. “Nearby” is defined as a distance from the stack of five times the lesser of the height or width of the structure itself, up to one-half mile. Id. at 5869 (to be codified at 40 C.F.R. § 51.1(jj)).\nThe third method for calculating GEP stack height is by a physical demonstration, either a fluid model or a field study. This method must be used to obtain credit for downwash produced by terrain features or by any obstacle that is not “nearby.” The demonstration must show that a greater-than-formula height is needed to ensure that emissions from the stack do not result in excessive concentrations of any air pollutant. Id. at 5868-69 (to be codified at 40 C.F.R. § 51.1(ii)(3)). “Excessive concentrations” is defined as maximum concentrations of a pollutant at least forty percent in excess of the maximum concentrations of the pollutant in the absence of the down-wash, eddy, or wake effects. Id. at 5869 (to be codified at 40 C.F.R. § 51.1(kk)).\nWe will describe other details of the challenged regulations as needed in dealing with each of petitioners’ objections to the new rules. We will discuss first those objections going roughly to the formulation and operation of the three methods, next those going to when the various methods are applied, then objections to certain exemptions from the regulations, then the various grandfather clauses provided by the regulations, and finally an objection to EPA’s timetable for state implementation of the regulations.\nII\nA. Definition of “Nearby”\nAs noted, the new regulations define “nearby” for purposes of application of the formulas as five times the height or width of the structure, up to one-half mile. There is no specific limit on the distance that structures and terrain obstacles may be from the stack in order to be taken into account in a demonstration. NRDC and Sierra Club argue that Congress intended to limit the structures and terrain obstacles that may be said to cause downwash to those within one-quarter mile of the stack, so that the regulations are contrary to law with regard to both the formulas and demonstrations.\nThe source of petitioners’ argument is certain language in the House Report that they say indicates Congress’s understanding that “nearby” meant no more than one-quarter mile away. The Report’s discussion of the term is as follows:\nIn affirming the 2Vfc times standard used by the Administrator, the committee referred to downwash problems created by both manmade structures and to terrain features located “nearby” the source. The committee intends that the term “nearby” be strictly construed, in keeping with the general policy of statutory interpretation favoring strict construction of exceptions and variances. If this term were construed too broadly (that is, to apply to manmade structures or terrain features one-fourth to one-half mile away from the source or more), the result could be an open invitation to raise stack heights to unreasonably high elevations *200and to defeat the basic underlying committee intent.\nHouse Report, supra p. 440, at 93, [U.S. Code Cong. & Admin.News 1977, p. 1171] (emphasis added).\nEPA apparently selected the one-half-mile limitation solely in response to this expression of congressional intent; it itself believed that downwash effects occur at greater distances from the obstacles and that the five-times-height-or-width rule was a better approximation of the longevity of those effects than is the one-half-mile limit. See 44 Fed.Reg. at 2610; 46 Fed.Reg. at 49,819.\nWe agree that the one-half-mile limitation is a sufficient response to the congressional intent. The statute specifically gives the EPA Administrator discretion to promulgate regulations to determine GEP height and the House report clearly indicates that that discretion extends to defining terms such as “nearby” as necessary, presumably in light of the Administrator’s expertise. The report standing alone is ambiguous on whether it was trying to impose a specific limitation on the definition of “nearby,” but when read in light of the statute’s broad conferral of discretion it is most readily interpreted as an attempt only to suggest the scale of magnitude that the committee had in mind, and not to pick a specific figure. The one-half-mile limitation that EPA chose is at or near the outer edge of the range Congress was thinking of, but it does not go beyond it. Thus, we find the Administrator’s choice to be consistent with both the legislative history and the statute.\nThe refusal to give any content to the statutory term “nearby” when applied to demonstrations is quite a different matter.3 The rationales offered were that (1) some obstacles create downwash effects at distances of more than one-half mile, (2) the fluid modeling methods would accurately tell precisely when such effects were occurring, and (3) the boundaries of many terrain features are not always distinct and thus a specific distance limitation would be difficult to apply. See 46 Fed.Reg. at 49,819; see also id. at 49,821 (accuracy of fluid modeling). Thus, the Administrator believed that the statute was intended to allow credit for the height needed to avoid the effects of any downwash that could cause excessive concentrations of pollutants.\nWhile such an approach might make a good deal of sense, we do not think it is the approach commanded by the statute. The primary support for the Administrator’s reading is that the language from the House Report quoted above, which places great emphasis on the word “nearby” as a carefully imposed limitation on the determination of GEP height, discusses the term only in connection with the formula method, not the demonstration technique. The Report discusses demonstrations in a different paragraph and does not mention the word “nearby” there at all. House Report, supra p. 440, at 93.\nMoreover, applying the “nearby” limitation only to the formula method and not to demonstrations would certainly be rational because, unlike demonstrations, the formulas do not otherwise select the obstacles to be taken into account. Without some limitation, the formulas could conceivably be used to give credit for the height of any obstacle upwind of the stack, even though the turbulence created in the wake of those obstacles could not possibly disrupt the plume. Demonstrations, however, do select the obstacles that will be taken into account, because they more accurately tell which will actually cause downwash.\nNevertheless, the legislative history is not explicit enough to refute the clear thrust of the statutory language. In describing the *201demonstrations that are permitted, the statute states that the operator may show “that a greater height [than two-and-one-half times the height of the source] is necessary as provided under the preceding sentence.” 42 U.S.C. § 7423(c) (Supp. V 1981) (emphasis added). The “preceding sentence” defines “good engineering practice” as the height necessary to ensure that excessive concentrations will not result from down-wash created by the source, “nearby structures or nearby terrain obstacles.” Id. (emphasis added). Thus, the statute explicitly applies the “nearby” limitation to demonstrations.\nIf such a reading were utterly nonsensical, we might be tempted, as a matter of interpretation of likely intent, to strain the statutory language to arrive at a more rational result. See, e.g., American Tobacco Co. v. Patterson, 456 U.S. 63, 71, 102 S.Ct. 1534, 1538, 71 L.Ed.2d 748 (1982) (“Statutes should be interpreted to avoid ... unreasonable results whenever possible.”); 2A C. Sands, Statutes and Statutory Construction § 45.12 (4th ed. 1973) (same). But such an approach to interpretation of statutes must be used with utmost caution, for the line between irrationality and mere bad policy is a wavering and uncertain one. Here, sense can be made of a limitation on the stack-height credit operators may receive in addition to the requirement that the height be necessary to avoid excessive concentrations of pollutants in the immediate vicinity of the plant. When EPA originally proposed these regulations in 1979, for example, it apparently intended some version of the “nearby” limitation to apply to demonstrations; it explained that it interpreted “the Congressional guidance as a criterion to indirectly establish a reasonable upper limit on GEP stack heights.” 44 Fed. Reg. at 2610; see id. at 2611 (“As in the case of GEP determinations using the empirical equation, the definition of ‘nearby’ is integral to determine the extent to which structures or terrain features may reasonably influence the fluid modeling or field study based GEP determination.”). That is, Congress may merely have wanted to place an absolute cap on the credit a source could receive for a tall stack, perhaps out of a distrust of the political and scientific methods by which the agency’s determinations of stack height credit were to be made.\nIn addition, as the Administrator’s rationale for eliminating the “nearby” limitation suggests, that limitation will primarily affect sources located in hilly terrain, since it is unlikely that a manmade obstacle will be large enough to create downwash problems at distances of greater than half a mile. Yet there are strong indications in the legislative history that Congress specifically sought to discourage utilities from locating in hilly terrain, because such locations tend to require very tall stacks, leading to greater dispersion of pollutants. For example, the House report states that it was “the expectation of this committee that persons responsible for siting new facilities will not locate them next to terrain features which will produce ... downwash.” House Report, supra p. 440, at 93, [U.S.Code Cong. & Admin.News 1977, p. 1171]. See infra p. 455 (other indications of this intent). Applying the “nearby” limitation to all methods of deriving GEP heights may be further evidence of Congress’s lack of solicitude for utilities located next to mountains (as opposed to those located next to very local, and presumably smaller, terrain features that may be surmounted with less stack height).\nFinally, even if there is an element of arbitrariness in Congress’s applying the “nearby” limitation to demonstrations, we note that the entire GEP stack height allowance was already regarded as something of a concession from the strict command that dispersion not be used to meet air quality standards. Congress may simply have been unwilling to compromise further the predominant purpose of reducing emissions in order to take account of what it may have regarded as fairly attenuated claims of downwash. There is frequently some arbitrariness when a lawmaker says, “Thus far and no further,” but such lines frequently must be drawn.\nThe statutory language must thus be interpreted to apply “nearby” to demonstra*202tions as well as to the formulas as a limitation on the amount of downwash that will be taken into account in giving credit for stack height. We remand, therefore, for the EPA to include new regulations that apply the same “nearby” limitation to demonstrations as is applied to the formulas.\nB. Definition of “Excessive Concentrations”\nWhen a source owner seeks to obtain credit for stack height greater than provided by the formulas, it must demonstrate that downwash can be expected to cause “excessive concentrations” of pollutants in the vicinity of the plant. The regulations define “excessive concentrations” as a forty-percent increase over the levels in the absence of the downwash-creating obstacle. 47 Fed.Reg. at 5869 (to be codified at 40 C.F.R. § 51.1(kk)).\nPetitioners NRDC and Sierra Club argue that such a definition is arbitrary and capricious because it does not measure any absolute amount of pollutant that is a danger to health or welfare, but instead invokes a relative measure. They state that the forty-percent rule would permit a source located in a very clean area to raise its stack height credit, even if the downwash avoided would only increase pollutant concentrations by a very small amount that would be of no harm to anyone. They urge a return to a standard like the one EPA originally proposed in 1979. Under that standard a source would have had to show that down-wash would both increase pollutant concentrations by at least forty percent and cause a violation of a national ambient air quality standard or, in certain areas, an incremental increase limitation. 44 Fed.Reg. at 2611.\nEPA eliminated the second of these criteria — requiring a violation of an air quality standard — in 1981. It said that its air quality standards and incremental limitations are unable to measure the high pollutant concentrations of extremely short duration that are typical of downwash. 46 Fed.Reg. at 49,819. This is because the standards measure pollutants after they have dispersed in the air, not in the concentrated doses caused by downwash. Id. Also, the standards measure average concentrations over time periods ranging from one hour to one year, which is too long to measure accurately the peak concentrations of down-wash pollutant. Id. (In this court, EPA states that it is currently reviewing its S02 standard to determine whether a short-term standard is necessary to protect public health. Brief of Respondents at 35 n. 27.)\nThus, only the forty-percent test was left. In this circumstance, the basis for, and derivation of, that test become especially important.\nThe forty-percent figure was derived from a review of the scientific literature on stack heights, including reports of wind tunnel tests EPA itself conducted during the rulemaking. EPA discovered a consensus in the literature that “the well established 2.5 times rule” was the stack height necessary to avoid “significant effects” for most buildings. The 1 + 1.5 Rule was found to be the consensus for tall, thin buildings. See Guideline for Determination of Good Engineering Practice Stack Height (Technical Support Document for Stack Height Regulations) (July 1981), Joint Appendix (J.A.) at 1086 [hereinafter cited as Technical Support Doc.].\nEPA then looked to the amount by which ground-level concentrations of pollutant were increased when a 2.5 or 1 + 1.5 stack was in place. It found that these formulas did not eliminate all effects of downwash but limited increased concentrations to roughly forty to eighty percent over the preexisting concentrations, with eighty percent representing an unusually high amount. See id. at 1096. EPA reasoned that if under traditional engineering practice the increase in concentrations was limited to about forty percent, then increases over forty percent could be regarded as excessive. See Draft Technical Support Document for Determination of Good Engineering Practice Stack Height (July 31, 1978), J.A. at 42 (Where range of increases recorded at GEP height was 20% to 40%, report concluded that “an increase in maxi*203mum concentrations' less than 20% is less than expected for GEP stack height while an increase in maximum concentrations greater than 40% is excessive.”).\nThe forty-percent figure is thus the lesson of history: it is what the engineering community has regarded as too much down-wash. NRDC and Sierra Club argue that this approach is all wrong, since Congress’s real concern in encouraging stack heights high enough to prevent “excessive concentrations” of downwash was the protection of human health. Therefore, they say, EPA must exercise its own independent judgment and define the term to allow enough height to prevent health-threatening downwash, and no more. Because the forty-percent standard is based on a relative value that varies with background concentrations, NRDC and Sierra Club assert, it does not measure the absolute levels of pollutant that are a danger to health.\nOur review of the statute and its legislative history discloses sharply conflicting signals on whether Congress intended to legislate the preexisting engineerinig practice or only so much stack height as would protect health or welfare. On the one hand, the primary statutory standard was “good engineering practice,” suggesting an intent to mandate whatever engineers had been doing. Moreover, the entire purpose of the statute was to remedy an abuse that had arisen whereby polluters were building stacks solely to evade Clean Air Act requirements; Congress may well have wanted to return to whatever engineers would do in the absence of the Act. In addition, the statute explicitly endorsed the standard — the 2.5 Rule — that Congress thought was the traditional engineering practice.\nNevertheless, Congress did not stop there, for it provided a very precise definition of what it regarded as “good engineering practice,” suggesting that it did not intend to leave the question of stack heights entirely to professional standards. While the statutory term at the center of that definition, “excessive concentrations,” is ambiguous — it could be read as either in excess of the previously recognized standard or in excess of some absolute standard, such as safety — the. legislative history points strongly in the direction of a meaning turning on danger to public health. The House committee report describes why downwash can be a problem in the following terms: “When this [downwash] occurs even the plume from a well-controlled source may cause air quality standards (or other requirements) to be violated.” House Report, supra p. 440, at 93, [U.S.Code Cong. & Admin.News 1977, p. 1171]. We think it a strain to refer to the previously recognized standard as a “requirement”; it seems likely that the committee was referring to other legal requirements, such as state nuisance law or the Clean Air Act’s prevention of significant deterioration increments.\nEPA’s 1973 stack height guidelines, which, as we have said, appear to have been Congress’s main source for the statutory language, also strongly suggest that the evil sought to be avoided by good engineering practice was tied to some minimum level of danger or inconvenience to the community. They provided:\nEmissions from stacks which are shorter than required by good engineering practice often can cause excessively high ground level concentrations and nuisances within, and in the immediate vicinity of, the facility.... The use of stack height up to the level of good engineering practice is encouraged by EPA in order to avoid local nuisances.\n1973 Guidelines, supra p. 441, at 25, 700; see also, e.g., Commonwealth v. South Covington & C. St. Ry., 181 Ky. 459, 463, 205 S.W. 581, 583 (1918) (“[A] common or public nuisance is the doing of or failure to do something that injuriously affects the safety, health, or morals of the public, or works some substantial annoyance, inconvenience, or injury to the public .... ”); United States v. County Board, 487 F.Supp. 137, 143 (KD.Va.1979) (“The term ‘nuisance’ ... includes everything that endangers life or health, gives offense to the senses, violates the laws of decency, or obstructs the reasonable and comfortable use of property.”).\n*204What seems most likely is that Congress thought traditional engineering practice and protection of health were the same thing. If that is the case, however, what are we to do if it develops, as NRDC and Sierra Club argue, that traditional engineering practice in fact dictates a height that is in some cases much higher than necessary to protect human health? We are saved from the full rigors of this potential conundrum by the conference committee. Its report states:\n[I]f it should be determined that down-wash, eddies, and wakes can be prevented by stacks of less than 2lh times facility height, the Administrator’s rule should give ‘credit’ only for the height needed to avoid these conditions.\n... In other words, it was not our purpose to make a Congressional judgment about what stack height was needed to prevent downwash. We intend EPA to make this judgment, subject only to the Congressional prohibition on the excessively high stacks of over 2V2 times building height.\n123 Cong.Rec. 27,071 (1977).\nWhat this passage suggests is that Congress wanted the Administrator to determine the height necessary to avoid excessive concentrations of downwash-caused pollution. Since Congress believed that the 2.5 Rule was in fact the good engineering practice rule, see House Report, supra p. 440, at 93, [U.S.Code Cong. & Admin. News 1977, p. 1171] (“A stack height value produced by reference to this historical relationship is referred to as ‘good engineering practice’ stack height and has been used by EPA in its regulations.”), the passage suggests that the conference committee saw the possibility of a distinction between its definition of the amount of downwash to be avoided and what engineers had been doing. If that turned out to be the case, the committee was clear that the statute’s definition would govern. Thus, development of a standard governing the height of stacks by reference solely to what engineers had been doing, with no regard for some real life values, was contrary to the intent of Congress.\nReading the House committee report as a whole confirms this view. It begins its discussion of the details of the bill with the observation that downwash is a problem because it causes air quality standards or other requirements to be violated, and only then discusses the “historically . .. responsible way of dealing with the problem.” Id. This suggests that meeting air quality standards was primary in its mind and that good engineering practice was merely a way to do so.\nFinally, we are considerably bolstered in our view that Congress was thinking primarily of dangers to health because that was the position originally taken by the Administrator. In the 1979 proposed regulations, primary reliance was placed on the requirement that the downwash in question cause a violation of air quality standards. The forty-percent proviso was merely intended, EPA wrote, “to establish a reasonable upper bound for creditable stack heights.” 44 Fed.Reg. at 2611.\nWhen EPA dropped the air quality standards as one of its criteria for measuring “excessive,” it did not address whether the forty-percent test measured danger to health or welfare. Neither EPA nor the utilities that have intervened on its behalf have disputed the contention of Sierra Club and NRDC that the forty-percent rule, because it measures relative changes in “preexisting concentration,” cannot measure the absolute levels of pollutant that are a danger to health. See Brief of Petitioners at 39. We agree that the level of pollutant that is a danger to health is an absolute value: the Act clearly envisions that the national ambient air quality standards that are to protect health and welfare will be defined in terms of maximum concentrations of each pollutant, see, e.g., 42 U.S.C. § 7409(c) (1976) (requiring promulgation of standard for “NO2 concentrations over a period of not more than 3 hours”), and that is the way the Administrator has consistently implemented the Act, see, e.g., American Petroleum Institute v. Costle, 665 F.2d 1176 (D.C.Cir.1981) (approving ozone stan*205dard of 0.12 parts per million), cert. denied, 455 U.S. 1034, 102 S.Ct. 1737, 72 L.Ed.2d 152 (1982).\nWe disagree, however, with the petitioners’ interpretation of the present regulation, and thus with their conclusion regarding the relation of the regulation to health. NRDC and Sierra Club appear to assume that the forty-percent increase in concentration is to be an increase over the preexisting levels in the area, including background concentrations of pollutants. We believe, however, that the increase is to be measured against the amount of the source’s own plume that falls to the ground even without downwash, regardless of preexisting or background concentrations of pollutant from other sources.\nPetitioners’ interpretation is arguably the most natural reading of the language of the regulation itself, which is as follows:\n“Excessive concentrations” for the purpose of determining good engineering practice stack height in a fluid model or field study means a maximum concentration due to downwash, wakes, or eddy effects produced by structures or terrain features which is at least 40 percent in excess of the maximum concentration experienced in the absence of such down-wash, wakes, or eddy effects.\n47 Fed.Reg. at 5869 (to be codified at 40 C.F.R. § 51.1(kk)). The regulation does not specify whether the “maximum concentration experienced in the absence of such downwash” is to be measured with or without pollutants generated by other sources. The 1979 proposal was similarly ambiguous. See 44 Fed.Reg. at 2614 (maximum concentrations “due in part or whole to downwash, wakes, or eddy effects”).\nThe preamble to the final regulations, however, is explicit that the forty-percent standard requires the source to demonstrate that “maximum concentrations caused by the source's emissions from its proposed stack height, without consideration of nearby structures or terrain obstacles, will increase by at least 40 percent when the effects of the structures or terrain obstacles are considered.” 47 Fed.Reg. at 5865 (emphasis added). Even more important, we see no reason why, as a scientific matter, one would rationally include background concentrations in the calculation.\nAlthough this court’s knowledge of the operation of downwash is admittedly rudimentary, it seems most likely that the amount of additional pollutant that is brought to the earth by means of down-wash will somehow relate to the amount of the original fallout, either because.fallout is a process similar to downwash and therefore produces proportionate amounts of grounded pollutants, or because both relate proportionately to the density of the plume. Presumably, therefore, the amount of a plume that falls to earth near the plant even in the absence of downwash is either an absolute number for all plumes emitted at a certain height or, more likely, varies with the density of the plume. Conversely, it seems unlikely that the amount of down-washed pollutant from a given stack height should vary with background concentrations of that pollutant in the area. That would mean that the eddies and whirlpools that bring the plume down to earth would operate more effectively the dirtier the surrounding air becomes, which, even if possible, seems odd. We conclude, therefore, that the forty-percent increase refers to an increase in the amount of pollutants from the plume that fall to the ground regardless of atmospheric conditions.\nWe have not had any argument on whether the regulation, so interpreted, in fact estimates dangers to health and welfare. On the one hand, it seems likely that it was such dangers to health and welfare that traditional engineering practice, from which the forty-percent figure was derived, sought to prevent, at least in a very rough way. On the other hand, EPA has not made this argument, relying instead on congressional approval of good engineering practice per se. In addition, the EPA scientists who derived the forty-percent figure did not describe it as an accurate measure of danger to health or welfare. It was rather a measure of what scientists conducting wind tunnel experiments in the *206past had thought was “a significant concentration difference” as they observed the smoke pouring out of their model smokestacks. See Technical Support Doc., supra p. 446, at 1092. The EPA scientists cautioned:\nThe visualized ... studies can be strongly biased by the observer’s eye and are extremely sensitive to the density of the smoke. The information from concentration profiles is influenced strongly by where the traverse through the plume is made [to determine the plume centerline] and the judgment in determining what constitutes a significant concentration difference....\n... Although the consensus opinion in the scientific literature strongly supports using [the 1 + 1.5 Rule] to determine GEP stack height, actual studies could show the need for a much taller or lower stack depending on one’s interpretation of what is a significant influence and on the effect of possible plume rise.\nId. at 1089-92 (emphasis added).\nMoreover, we note that EPA chose the forty-percent figure from a range of increased concentrations produced by a stack 2.5 times the height of the obstacle, and forty percent was at the low end of that spectrum. The choice of forty percent as the definition of “excessive” is more consistent with an attempt to arrive at a reasonable upper limit on stack height — i.e., to place a floor on the amount of increased concentration that would justify an increased stack height — rather than an attempt to discern the historical concept of safe levels of downwash. Reliance on the lower figure alone also does not appear to be consistent with the clearly expressed congressional expectation that credit for stacks in excess of the 2.5 Rule would “be highly infrequent and that the latitude given the Administrator to allow full credit for such stack height [would] be exercised with circumspection and utmost caution in those rare circumstances proven to justify. its use,” House Report, supra p. 440, at 93, U.S.Code Cong. & Admin.News 1977, p. 1171.\nFinally, apart from the intention of EPA in developing the forty-percent rule, we think it unlikely that even the reinterpreted present rule will measure an absolute pollutant concentration that is dangerous to health, rather than a range of concentration increases varying with the density of the plume and other factors. Of course, it may be that, for all stacks large enough to be of concern, that range of increases will be entirely above the threshold of danger to health or welfare. EPA has not said so, however, and our examination of the derivation of the figure suggests. strongly that that is not the case.\nWe think our best course is to remand the definition of “excessive concentrations” to the Administrator with instructions to develop a standard directly responsive to the concern for health and welfare that motivated Congress to establish the downwash exception. We do not condemn the historical approach EPA has taken to deriving that standard, but we caution EPA to be aware that it is writing under substantially different conditions from those that faced the engineers who first developed the rules of thumb for stack height. The engineers could be satisfied with a conservative rule that was absolutely sure to eliminate health hazards, but only local ones; EPA must be more stringent, since any extra height will mean increased emissions and longer transport of pollutants, both of which Congress has instructed the agency to minimize. Therefore, EPA must satisfy itself in some way independent of history .that the standard it derives in fact fairly approximates the stack height level needed to protect local health and welfare; in doing so, moreover, it should err on the side of reducing stack height, in keeping with Congress’s command that credit for stack heights above the 2.5 Rule height be granted with “utmost caution.” These two precepts are the heart of our holding on this issue.\nC. Failure to Consider Plume Rise\nPlume rise refers to the tendency of exhaust gases to continue to rise after they leave the stack because of their momentum *207and heat. Petitioners NRDC and Sierra Club assert that in deriving the 1 + 1.5 and 2.5 Rules EPA has ignored plume rise. They argue that the failure to consider plume rise is arbitrary and capricious, because it will lead to the prediction of excessive concentrations where none will occur since the “effective” height of the stack will be much higher than the physical height. Thus, they say, the GEP formulas will allow higher GEP height than needed to ensure against excessive concentrations of pollutant caused by downwash.\nEPA admits that the formula does not take account of plume rise, but asserts that “[u]nder the very high wind conditions that cause downwash, no plume rise takes place near the source.” Summary of Comments and Responses on the October 7, 1981 Proposal of the Stack Height Regulations (Dec. 1981), J.A. at 1190 [hereinafter cited as 1981 Responses]; accord Technical Support Doc., supra p. 446, at 1102 (“[T]he critical conditions for determining GEP stack height for most sources are considered likely to be high winds associated with neutral atmospheric stability with little plume rise near the sources.”); see also 46 Fed.Reg. at 49,-820 (“[T]he comments correctly pointed out that the technical support document was based on studies which did not include plume rise.”).\nNRDC and Sierra Club dispute this factual conclusion, citing two pieces of evidence. First, they point out that EPA’s own regulations for running the demonstrations that operators may use to gain above-formula height require the inclusion of plume rise. See 46 Fed.Reg. at 49,820 (“Fluid models and field studies take into account gas flow rates and temperature, in addition to stack height. Accordingly, they will take into account some plume rise in establishing the GEP stack height.”); Draft Guideline for Use of Fluid Modeling to Determine Good Engineering Practice Stack Height (June 1979), J.A. at 677-78, 680 [hereinafter cited as Fluid Modeling Guideline]. Second, they cite a report submitted by the Tennessee Valley Authority in this rulemaking that estimates the plume rise above the top of the stack during strong winds to be 99, 84, and 145 meters at 76, 91, and 305 meter stacks, respectively. See An Analysis of Terrain-Induced Aerodynamic Disturbances Near the Kingston Steam Plant, Kingston, Tennessee, at 1-1, Record at 77 app.\nWe view this as a factual dispute that we must review under the substantial evidence standard, see 5 U.S.C. § 706(2)(E) (1976). We side with EPA. Its conclusion that plume rise is not significant rests primarily on the wind tunnel studies cited in its' technical support document, which did not provide for plume rise, yet derived approximately the same formula as apparently had arisen as “a practical formula” from years of empirical observation, presumably including any plume rise. Compare Technical Support Doc., supra p. 446, at 1080 (“This rule arose during the early part of this century as a practical formula. [A 1955 study] reportfs] that the rule had been successfully used by the British electricity generating industry during the previous 20 years.”) with id. at 1086 (“A review and evaluation of the current literature ... reveals a consensus that [the 2.5 Rule is] the stack height necessary to avoid significant effects for buildings whose projected width is greater than its height. ... [Otherwise, the 1 + 1.5 Rule is appropriate.]”). Since studies that do not account for plume rise arrived at the same conclusion that was derived from observations including plume rise, it seems fair to infer that at least the usual amount of plume rise does not have a significant effect on downwash. In response to concerns about the possibility of artificially increasing plume rise beyond the normal amount, EPA’s regulations prohibit as a dispersion technique installation of fans and heaters intended to enhance plume rise. See 47 Fed.Reg. at 5868 (to be codified at 40 C.F.R. § 51.1(hh)); id. at 5867; 46 Fed.Reg. at 49,820; infra pp. 461-64.\nThat EPA has allowed operators to account for plume rise in demonstrations does not persuade us that the 1 + 1.5 Rule is unprincipled, because we think it entirely rational for EPA to be more concerned that even small amounts of plume rise be *208accounted for when a source is seeking greater height than provided by the formulas. Congress specifically directed that such increased height be allowed only “with circumspection and utmost caution in those rare circumstances proven to justify its use.” House Report, supra p. 440, at 93, [U.S.Code Cong. & Admin.News, 1977, p. 1171]. (The report was referring to heights in excess of the 2.5 Rule, but we think it clear that its thinking applies equally to the more accurate 1 + 1.5 Rule.) The formulas, on the other hand, are intended to be easy to apply and, of necessity, somewhat rough rules of thumb. We think such a dual approach was within the contemplation of Congress and is not a capricious use of EPA’s limited resources.\nPetitioners’ citation of the significant plume rise reported in the TYA study does not substantially undermine EPA’s assertion that plume rise is fairly insignificant under downwash conditions. The TVA report does not contradict EPA’s finding that, particularly as wind speed increases, plume rise near the stack, where downwash occurs, is generally small even though plume rise further downwind may be significant. Such a phenomenon is an expected consequence of high wind conditions, and it is consistent with EPA’s view that plume rise has little effect on downwash near the stack. See Fluid Modeling Guideline, supra p. 451, at 666 (“Under such conditions [high wind speed and neutral stability], plume rise near the source where its rise is dominated by momentum flux, will be small while its rise farther downwind may be largely due to buoyancy [heat] flux.”).\nWe affirm the refusal to include plume rise in the derivation of the formulas.\nD. Inclusion of Plume Impaction\nPlume impaction occurs when a plume of exhaust gases emitted from a stack hits a higher hill or mountain downwind of the stack. Under stable atmospheric conditions, the plume can hit the mountain before it has dispersed, causing high concentrations on the mountainside. See 1981 Responses, supra p. 451, at 1166.\nIn response to comments received after its 1979 proposed regulations, EPA decided to allow credit for stack heights needed to avoid violation of national air quality standards on the elevated terrain. See 46 Fed. Reg. at 49,815-16. The new regulations allow a source to receive credit for the amount of its stack necessary to ensure that violations will not occur on the mountain as a result of the amount of the mountain’s height that is above GEP height. 47 Fed.Reg. at 5869 (to be codified at 40 C.F.R. § 51.12(7 )).4 Without plume impaction credit, the source would have to reduce its *209emissions to prevent modeled violations on the mountainside.\nPetitioners NRDC and Sierra Club argue that section 123 does not permit EPA to give credit for stack height necessary to avoid any phenomena other than “down-wash, eddies and wakes,” and that plume impaction is not one of these statutorily specified exemptions. Plume impaction is caused by obstacles downwind of the stack, rather than upwind of it, and generally occurs when there is little wind to disperse the plume, rather than when the wind is strong.\nEPA admits that plume impaction is not the same as downwash, eddies, or wakes, but argues that they are sufficiently similar that the same rationale should apply to it. 47 Fed.Reg. at 5866 (“In all of these events, structures or terrain features interfere with plume dispersion.”); 1981 Responses, supra p. 451, at 1167-68 (“These conditions are similar but independent of each other since they generally occur under different meteorological conditions.”). The agency relies on its general authority under section 301 of the Act to “prescribe such regulations as are necessary to carry out [its] functions under [the Act].” 42 U.S.C. § 7601(a)(1) (Supp. V 1981).\nEPA’s construction of the statute is condemned by the general rule that when a statute lists several specific exceptions to the general purpose, others should not be implied. See, e.g., A.H. Phillips, Inc. v. Walling, 324 U.S. 490, 493, 65 S.Ct. 807, 808, 89 L.Ed. 1095 (1945) (“Any exemption from such humanitarian and remedial legislation must ... be narrowly construed .... ”); Colorado Public Interest Research Group, Inc. v. Train, 507 F.2d 743, 747 (10th Cir. 1974) (“[W]here the legislature has acted to except certain categories from the operation of a particular law, it is to be presumed that the legislature in its exceptions intended to go only as ■ far as it did, and that additional exceptions are not warranted.”).\nHad we any doubts that this rule should apply to this case, they are eliminated by the specific instruction in the House committee report that the term “nearby” should be “strictly construed, in keeping with the general policy of statutory interpretation favoring strict construction of exceptions and variances.” House Report, supra p. 440, at 93, [U.S.Code Cong. & Admin.News 1977, p. 1171]; see also supra pp. 443-46 (discussion of meaning of “nearby”). Not only the word “nearby,” but the entire permission to give credit for “good engineering practice” height constitute exceptions or variances. Congress sought to prohibit reliance on stack height to achieve air quality standards except in-certain cases that it very specifically defined. The specified cases are where stack height is needed to prevent excessive concentrations resulting from “downwash, eddies and wakes.” We should be extremely chary of adding any others.\nEPA argues, however, that this rule should be softened when it appears that Congress was not informed of the problem and therefore did not deliberately omit it. EPA asserts that this is such a case. See 47 Fed.Reg. at 5866 (“Section 123 does not mention impaction. However, neither the language of the statute nor the legislative history show that this omission was deliberate.”). We agree that where there is evidence that Congress considered or was informed of. other things of more or less the same species as the ones placed in the statute, the case is stronger for inferring that the others were deliberately excluded. See Lubrizol Corp. v. EPA, 562 F.2d 807, 817-18 (D.C.Cir.1977) (fact that hearing witness listed several factors, including fuel and fuel additives, that affect automobile emissions suggests that at least some members of Congress did not expect statutory term “fuel” and “fuel additives” to include other potential causes of pollution, such as motor oil). We conclude, however, that the obverse rule advanced by EPA — that if there is no evidence that Congress knew of or considered the other things, the presumption should be that they are included in the statutory exception — would be contrary to the strict construction of exceptions directed by judicial doctrine and by the legislative history of this law. Cf. Harrison v. *210PPG Industries, 446 U.S. 578, 592, 100 S.Ct. 1889, 1897, 64 L.Ed.2d 525 (1980) (“[I]t would be a strange canon of statutory construction that would require Congress to state in committee reports or elsewhere in its deliberations that which is obvious on the face of a statute.”).\nIn any case, there is some evidence in the legislative history of the 1977 amendments that Congress was in fact made aware of the problem of plume impaction in hilly terrain. Representatives of electric utilities appeared before the congressional subcommittees considering the amendments and discussed the deleterious effects the new laws would have on utilities. They contended that several provisions in combination would limit the availability of plant sites in mountain areas. Among the provisions mentioned were those that sought to prevent the deterioration of clean-air areas, called prevention of significant deterioration (PSD) provisions, and the tall stacks section. Thus, a representative of the Edison Electric Institute, the principal national association of investor-owned electric companies, reported the following adverse effect of the amendments:\n(2) More coal-fired power plants would have to be built in the mid-west and in eastern coastal plains and less in the Appalachians and the West because of the substantial penalties imposed on plant size by [PSD] and tall stack limits in areas of hilly terrain.\nClean Air Act Amendments of 1977: Hearing on S. 251, S. 252, and S. 253 Before the Subcomm. on Environmental Pollution of the Senate Comm, on Environment and Public Works, 95th Cong., 1st Sess. (pt. 2), at 231 (1977) (written testimony of Donald G. Allen).\nMoreover, these limitations on siting were linked specifically to plume impaction by the testimony of E. Allan Hunter, president of the Utah Power & Light Co., before the same subcommittee. Mr. Hunter proposed a variance procedure for allowing certain plants to exceed the relevant PSD limitations for five percent of the year to account for those days on which plume impaction might occur:\nOur problem lies in the nature of the topography out in Utah. Utah consists of narrow valleys, with mountainous or hilly terrain on either side. The mountainous terrain models [that] are now being used to predict pollutant concentrations indicate that perhaps a few days in the year under stagnant air conditions the SO2 concentration on the adjacent hillsides would exceed the allowable limits.\nId. at 37 (oral testimony); see also id. at 337 (written statement of Mr. Hunter) (“What we here urge is an alternative that would facilitate good plant siting ....”); id. at 339 (same) (“This material [certain studies] does indicate that without ... some relief from the short term plume impact on high terrain . . ., we cannot build sufficient capacity to supply the electric needs of our customers in the next twenty years.”). Although these complaints were heard and became part of the congressional debate on the amendments, see, e.g., 122 Cong.Rec. 34,405 (1976) (remarks of Sen. Tower, opponent of the amendments) (“Studies by electric utility consultants concluded [that under PSD provision] only small, inefficient and uneconomical power plants could be built in hilly terrain ....”); infra p. 457, neither Mr. Hunter’s proposal nor any other relief for mountainous areas was enacted in response. .\nThus, although no one made explicit the link advanced in the regulations between taller stacks and plume impaction, these excerpts suggest that at least some members of Congress were aware that (1) requiring short stacks would somehow tend to preclude certain potential sites for power plants in hilly terrain, and (2) plume impaction was one reason that fewer such power plant sites would be available. It may be too much of a leap to say that Congress understood that taller stacks might help to reduce the effect of plume impaction, and rejected such an approach. But we think we may infer at least that the problems created by plume impaction and by requiring short stacks in hilly terrain were brought to Congress’s attention, and Con*211gress chose not to focus on, and resolve, them. This suggests a relative indifference to the problem of nearby mountains causing very stringent emissions limitations, an indifference that is at odds with the willingness to avoid the strict limitations that would be required because of downwash, eddies, and wakes, were it not for section 123.\nLittle more need be said to refute the argument raised in this court by a number of utility intervenors that excluding plume impaction from the calculation of emission limitations would result in much stricter limitations for utilities located in mountainous terrain than for ones located in the flatlands. Since this would mean a decline in jobs and industrial activity in mountain regions, the utilities argue, EPA has properly construed section 123 in light of the purpose stated in section 101 of the Act .“to protect and enhance the quality of the Nation’s air resources so as to promote the public health and welfare and the productive capacity of its population.” 42 U.S.C. § 7401(b)(1) (1976) (emphasis added).\nIn enacting section 123, Congress clearly did not intend to legislate geographic equality. In fact, it specifically expected that the tall stacks provision would have a disproportionately heavy impact on polluters in mountain areas. Thus, the House committee report noted the committee’s “expectation” that “persons responsible for citing new facilities will not locate them next to terrain features which will produce .. . downwash.” House Report, supra p. 440, at 93, [U.S.Code Cong. & Admin.News 1977, p. 1171]. Moreover, it quotes EPA Administrator Douglas Costle’s statement that the Administration thought it “ ‘clearly preferable to require tighter controls or more careful siting to solve our air quality problems rather than disperse pollutants over greater distances.’ ” Id. at 92, U.S.Code Cong. & Admin.News 1977, p. 1170 (emphasis added). In his testimony, Mr. Costle went on to state, “If we later learn that tall stacks are essential for siting certain types of facilities, we would consider asking Congress for authority to allow tall stacks for such facilities in cases where public health would not be affected.” Clean Air Act Amendments of 1977: Hearings on H.R. 4151 & H.R. 4758 Before the Subcomm. on Health & the Environment of the House Comm. on Interstate & Foreign Commerce, 95th Cong., 1st Sess. (pt. 2), at 1679 (1977).\nThus, we do not think section 123 permits EPA to take plume impaction into account in setting the degree of emission limitation required for sources in hilly areas. EPA’s reliance on its general authority to make rules necessary to carry out its “functions” does not avail it, because, as we pointed out in Lubrizol Corp. v. EPA, 562 F.2d 807, 815 n. 20 (D.C.Cir.1977), a specific statutory directive “defines the relevant ‘functions’ of EPA,” so that section 123 is the sole source of statutory authority.\nWe admit that there is much to commend EPA’s action from a policy perspective. Without EPA’s plume impaction provisions, the law discriminates harshly against utilities located in mountainous terrain, for it will require them to emit far less than their flatland counterparts. The only cost of allowing EPA to mitigate that discrimination by bringing flatland and mountain emissions limitations closer together would be that mountain utilities would have to disperse their pollutants more widely. See supra note 4.\nWe note, however, that Congress viewed tall stacks as a“ problem not only because they did not decrease the loading of emissions into the air, but also, and independently, because they served to disperse pollutants more widely. Wide dispersion had been linked to the formation of acid rain, tended to export pollution to previously pristine areas, and made enforcement more difficult because of the difficulty of tracing dispersed pollutants back to their source. See House Report, supra p. 440, at 83-87; see also An Assessment of the Potential Effect of Stack Height on Sulfate Formation and Sulfur Deposition (December 1979), J.A. at 791 (“Tall stacks allow more sulfate formation and less [sulfur] removal than an equivalent release at lower heights .... ”). Of course, such wider dispersion is *212permitted anyway by the Act, see 42 U.S.C. § 7423(c) (1976) (EPA may not restrict in any manner the actual stack height of any source), but the plume impaction rules would encourage or, effectively, require it. It is conceivable that Congress would decline to encourage the very tall stacks no doubt needed to overcome plume impaction in mountainous terrain. Thus, the construction we place on the statute is harsh, but not utterly irrational, and therefore we are constrained to give the statutory exception the strict interpretation that Congress specifically intended.\nEPA’s attempt to reduce emissions limitations by so much of the stack height as needed to avoid plume impaction is reversed.\nE. Requiring Demonstrations only for Stacks Above Formula Height\nUnder EPA’s regulations, a source concerned about downwash caused by buildings must use a demonstration, as opposed to the simpler and cheaper formulas, only when it seeks credit for stack height in excess of that provided by the formulas. Petitioners Sierra Club and NRDC assert that it was an abuse of discretion for EPA not to require demonstrations in two other cases: (1) whenever local or federal pollution authorities believed the formulas overestimated the height needed to prevent excessive concentrations of downwash-caused pollution, and (2) whenever a facility sought to raise an existing stack. The latter argument is based on the theory that stacks have historically been built to avoid downwash, so that there is a presumption that existing height is sufficient.\nThe first of these provisions was included in the 1979 proposed regulations, and the second — regarding existing stacks — was mentioned then as a specific case in which demonstrations might be required in particular instances. 44 Fed.Reg. at 2614; see id. at 2610. In 1980, in connection with a request for approval of credit for stack height increases at two existing power plants in Ohio, EPA decided to require demonstrations in all cases where a source sought to raise an existing stack height. 45 Fed.Reg. 42,279, 42,281-82 (1980). The agency explained that it had become increasingly concerned that current emissions levels were “resulting in significant regional air pollution problems, particularly acid rain.” Id. at 42,281.\nSince publication of EPA’s [1979] proposal, several sources have requested relaxations of S02 emission limitations in connection with stack height increases up to the height permitted by the GEP formula. EPA is concerned that allowing sources automatic credit for GEP formula height is improperly encouraging emission limit relaxations and S02 emission increases that aggravate the acid rain problem.\nId. At the time, EPA expected to incorporate the existing-stacks requirement into final stack-height regulations within a few months; a year later, when the final rules still had not been issued, EPA withdrew the requirement pending consideration of the final rules. 46 Fed.Reg. 28,650 (1981).\nNeither the 1981 reproposed regulations nor the final regulations under review contain either provision. EPA gave three reasons for the changes. First, it expressed great faith in the formula as an accurate measure of GEP height. In the 1981 reproposal, for example, EPA stated, “[W]e have established that the formula is the best determination of good engineering practice stack height based on nearby structures.” 46 Fed.Reg. at 49,820; see also 1981 Responses, supra p. 451, at 1172 (“[A]fter reviewing the facts and information available, EPA believes that the formula provides a very good estimate of the stack height necessary to avoid excessive concentrations caused by downwash.”).\nSecond, evidently as to the proposal that local authorities be allowed to require demonstrations for below-formula stack heights, EPA asserted that “inconsistencies could result.” 46 Fed.Reg. at 49,820. This comment is cryptic, but we suspect that it must refer to inconsistencies between lax and zealous state environmental protection agencies, resulting in different require*213ments for similarly situated plants in different states.\nThird, EPA cited a passage from the House committee report that it says indicates an intent to allow automatic credit up to formula height. 1981 Responses, supra p. 451, at 1173. The passage is from the report’s discussion of the PSD provisions, in which the committee argues that those provisions will allow sufficient industrial development in all but the cleanest areas. House Report, supra p. 440, at 159-64. The report adds:\nThe committee bill even allows credit for stack height up to 2lh times the basic height of the structure. This means that the average new coal-fired powerplant could have stacks as tall as 500 feet. (Older plants would be permitted to increase existing stack heights up to 2JA times, or more in some cases under the bill.)\nId. at 162 (emphasis added).5\nThis last reason is easily neutralized. We agree that the House committee, and perhaps the Congress generally, probably had in mind a system of determining GEP stack height involving a generalized formula applicable to all sources except those seeking greater height. This appears to have been the general conception of the 1973 guidelines upon which Congress drew in drafting section 123, see 1973 Guidelines, supra p. 441, at 25,700 (2.5 Rule produces proper height in “fairly level terrain,” but “[f]or more complex situations, ... detailed engineering and meteorological investigations ... should be conducted to determine the appropriate stack height”), and the House report’s discussion of section 123 itself seems to make the same assumption, see House Report, supra p. 440, at 93 (“affirming the 2V2 times standard” but recognizing need to approve greater height when “aerodynamics of a source” require it).\nNevertheless, the statute itself is carefully designed to commit the determination of GEP height to “regulations promulgated by the Administrator” and speaks of the 2.5 Rule only as an upper limit. The conference committee’s report even more clearly evinces an intent to leave the entire question of what method to use to determine GEP height to the discretion of the Administrator (subject to the requirement of demonstrations for any height above 2V2 times the height of the source). The conference committee explicitly stated that the Administrator’s rule “should give ‘credit’ only for the height needed to avoid” the downwash problem, and suggested that that rule might differentiate among various kinds of *214sources if it was found that the height needed to avoid downwash so varied. The report concluded, “In other words, it was not our purpose to make a Congressional judgment about what stack height was needed to prevent downwash. We intend EPA to make this judgment .... ” 123 Cong.Rec. 27,071 (1977). The report does not depart from the expectation that GEP height will usually be determined by a formula, but it does make clear that the formula used is up to the Administrator. Implicit in that discretion is the power to decide when the formula must be used. Therefore, our review here is not of an interpretation of specific congressional intent, but rather of the agency’s exercise of its discretion.\nIn evaluating whether EPA acted arbitrarily and capriciously in rejecting the two additional uses of demonstrations it initially proposed, we are left, then, with two explanations: an expressed belief in the accuracy of the formulas, and a fear of inconsistent enforcement. See generally SEC v. Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1575, 1577, 91 L.Ed. 1995 (1947) (agency action must be judged solely on the grounds invoked by the agency). Of the two explanations, the central reason must be EPA’s confidence that the formulas provide “a very good estimate of the stack height necessary to avoid excessive concentrations caused by downwash,” 1981 Responses, supra p. 451, at 1172, for if EPA had less confidence in the formulas, its view of how much inconsistency in state enforcement it could tolerate would surely change.\nEPA’s confidence in the formulas developed under the agency’s apparent view that “excessive” meant an amount over the amount permitted by traditional engineering practice. We have found this to be an inadequate definition of the term, however, because Congress intended the agency to arrive at an independent conclusion regarding the stack height needed to prevent dangers to health and welfare resulting from downwash. See supra pp. 446-50. The words “excessive concentrations,” from which we derived this requirement, govern not just demonstrations, but the Administrator’s determination of “good engineering practice” generally. EPA therefore has not properly addressed the question of whether the formulas provide an accurate enough measure of the amount of stack height needed to avoid dangers to health and welfare. See, e.g., Technical Support Doc., supra p. 446, at 1092 (degree to which 1 + 1.5 formula height that would be dictated by “actual studies” depends on “one’s interpretation of what is a significant influence” on ground concentrations). We must remand for the agency to consider how well the formulas protect against excessive concentrations and thus whether they are so accurate that demonstrations need not be used to justify raising stack heights in the two circumstances noted at the outset.\nThe Administrator’s second justification for the present rule is also deficient, and we therefore caution him that should he again propose the disparate use of demonstrations he must rely on something other than bald assertions about inconsistency of enforcement. We are not in a position to say whether a well-grounded fear of inconsistent state enforcement might conceivably justify not providing states with discretion to require demonstrations. We are certain, however, that it will not do for EPA merely to assert that “inconsistencies could result.” Inconsistencies will always result from a regulatory scheme that relies on some measure of state enforcement, but the Act clearly envisions state implementation of generalized directives from EPA. See, e.g., 42 U.S.C. § 7407(a) (Supp. V 1981) (“Each State shall have the primary responsibility for assuring air quality within the entire geographic area comprising such State .. ..”); see also Train v. NRDC, 421 U.S. 60, 68-70, 95 S.Ct. 1470, 1476-77, 43 L.Ed.2d 731 (1975) (discussing various states’ approaches to implementing 1970 amendments to Act). At the least, EPA must specify why it is that such “inconsistency” is especially likely and harmful in this case, and that inconsistency must be weighed against the harms to flow from allowing widespread overestimation of stack heights to go uncorrected.\n*215We note two other considerations that were clearly absent from EPA’s initial determination of the amount to which demonstrations were to be used and that should be considered pursuant to our remand. First, there is virtually no evidence in the record supporting a conclusion that the formulas err only in one direction. Although a number of commentators suggested that the 2.5 Rule was regarded as yielding a minimum height necessary to avoid downwash, see J.A. at 142-43 (comments of Rohm & Haas Co.); id. at 339 (comments of The Southern Co.), the data discussed by EPA scientists in their review of the literature suggest no such bias. Some of the data in fact suggest that the formulas overestimate the necessary stack height in some circumstances, while virtually no data indicates that they underestimate it. See Technical Support Doc., supra p. 446, at 1087 (“The extent of significant effects for rounded structures are likely not as great as those for sharp-edged structures, although there is very little information available.”); see also id. at 1083 (downwash less at rounded-edged than at sharp-edged structures). The conclusion of EPA was that while there was a consensus around the 1 + 1.5 Rule, “actual studies could show the need for a much taller or lower stack depending on one’s interpretation of what is a significant influence and on the effect of possible plume rise.” Id. at 1092.\nIn this light, EPA cannot use the inaccuracy in the formulas to allow demonstrations to obtain credit for height above that provided by the formulas but not to limit credit below it. Rationality demands that if the inaccuracy is neutral, the corrective device must be neutral. The statute does not command otherwise. The provision for demonstrations for above-formula height does not require the Administrator to provide for such demonstrations if he believes they are unnecessary. That provision is part of the definition of good engineering practice height, 42 U.S.C. § 7423(c) (Supp. V 1981), the determination of which the statute leaves to the Administrator’s discretion, see id. § 7423(a)(1). The House committee report leaves no doubt that the provision for demonstrations was a discretionary power, not a command. House Report, supra p. 440, at 93, [U.S.Code Cong. & Admin.News 1977, p. 1171] (“In such instances, the Administrator has been given discretion to approve a State implementation plan which provides for stack height greater than the 2V2 times standard.”).\nSecond, EPA appears to have radically undervalued the presumption raised by the fact that an existing stack was built to less-than-formula height. The House committee recognized that “for many years, good air quality management has meant building a stack sufficiently tall to offset aerodynamic downwash created by structures in the immediate vicinity of the stack.” House Report, supra p. 440, at 93, [U.S.Code Cong. & Admin.News 1977, p. 1171]. It seems fair and logical to assume that, particularly in the large plants governed by the Act, good air quality management has been followed and that dangers to health and welfare have not been tolerated. There is, moreover, some data to support this assumption, in that EPA, after its initial review of the several applications for increased stack height credits for existing stacks that were filed after the 1979 proposed regulations were issued, became convinced that some or all of the increases were unjustified. See 45 Fed.Reg. at 42,281.\nIn the absence of a strong showing that this presumption is mistaken, it may be rebutted in individual cases only by a reliable indicator of the height needed to prevent dangers to health or welfare caused by downwash. In the present final regulations, EPA has severely undermined its claim that the formulas are such an indicator by allowing demonstrations to increase stack height above the formula height without any special indication that that was a class of sources for which the formulas were not likely to yield the right result. Such inconsistency is the hallmark of arbitrary action.\nWe remand for the EPA to reconsider whether, in light of its new understanding of “excessive concentrations,” demonstra*216tions are necessary before stack heights may be raised, even if the final height will not exceed formula height.\nF. Definition of “Stack” to Exclude Flares\nA flare is a pipe used in the oil, natural gas, and chemical industries to vent combustible gases by burning them at the top. In its 1979 proposed regulations, EPA explicitly included “flare[s]” in its definition of the statutory term “stack.” 44 Fed.Reg. at 2613. The affected industries, two government agencies, and the American Society of Mechanical Engineers submitted comments arguing that flares are different from stacks because flare height is intended not to disperse pollutants but to allow for the safe combustion of dangerous gases produced during malfunctions in the industrial process. For this reason and because it believed flare emissions were difficult to measure, EPA excluded flares from the definition of “stacks” in its reproposed and final regulations. See 47 Fed.Reg. at 5868 (to be codified at 40 C.F.R. § 51.1(ff)) (“ ‘Stack’ means any point in a source designed to emit solids, liquids, or gases into the air, including a pipe or duct but not including flares.”); id. at 5867; 46 Fed.Reg. at 49,817, 49,820. NRDC and Sierra Club argue that “flare stacks” are essentially no different from stacks in that they vent emissions into the atmosphere, and that their height can be used to evade emissions limitations. Therefore, they say, EPA’s exclusion of flares from the definition of “stack” is contrary to law.\nWe find that EPA’s definition of the term “stack” is a reasonable interpretation of a more or less technical term by the agency charged with implementation of the statute, and therefore affirm its exclusion of flares. See generally Zenith Radio Corp. v. United States, 437 U.S. 443, 450, 98 S.Ct. 2441, 2445, 57 L.Ed.2d 337 (1978) (agency’s definition need not be the only reasonable one, but must be “ ‘sufficiently reasonable’ to be accepted by a reviewing court”) (quoting Train v. NRDC, 421 U.S. 60, 75, 95 S.Ct. 1470, 1480, 43 L.Ed.2d 731 (1975)); Lead Industries Ass’n v. EPA, 647 F.2d 1130, 1147 (D.C.Cir.) (“Where different interpretations of the statute are plausible, so long as EPA’s construction of the statute is reasonable we may not substitute our own interpretation for the Agency’s.”), cert. denied, 449 U.S. 1042, 101 S.Ct. 621, 66 L.Ed.2d 503 (1980).\nThe record supports the conclusion that the engineering community defines “stacks” to exclude flares, and that flare height is intended, under standard engineering practice, primarily to safeguard personnel and structures from the heat, flames, and unburned toxic gases that emanate during flaring, rather than to disperse the resulting concentrations of pollutants. See, eg., J.A. at 200 (comments of American Society of Mechanical Engineers); id. at 195-96 (comments of Monsanto Co.); id. at 203 (comments of Shell Oil Co.); id. at 353-54 (comments of Chevron U.S.A., Inc.). Some flares, if the release is small enough or remote enough, burn the gases at ground level. Id. at 353 (distinguishing “elevated flares” from “pit flares” and “ground flares”). Moreover, in part because of this primary purpose, flares are generally erected in isolated areas where, unless there is a nearby terrain obstacle, downwash is generally not a problem. Therefore, the height demanded by safety might not be justifiable if the sole aim were to prevent down-wash. This seems unlikely to have been Congress’s intent. Finally, there is no mention of flares in the legislative history.6 We *217affirm EPA’s definition of stack to exclude flares.\nG. Definition of “Dispersion Techniques”\nSection 123 bars giving emission credit for tall stacks and “other dispersion techniques.” EPA’s final definition of “dispersion technique” includes, in addition to the tall stacks and intermittent or supplemental control systems mentioned in the statute, the “addition of a fan or reheater to obtain a less stringent emission limitation.” Expressly excluded from the definition are reheating the gas stream to its original temperature after the use of a pollution control system, certain agricultural and silvicultural uses of smoke, and “combining the exhaust gases from several stacks into one stack.” 47 Fed.Reg. at 5868 (to be codified at 40 C.F.R. § 51.1(hh)).\nSierra Club and NRDC object that the definition does not include a number of dispersion techniques that should be barred: (1) the use of fans and reheaters to avoid a more stringent emission limitation, rather than merely to gain a less stringent one, (2) the addition of nozzles and other devices to increase plume rise, (3) combining several stacks into one for the purpose of increasing plume rise, and (4) other such techniques polluters may devise in the future.\nEPA’s original proposal defined “dispersion technique” far more broadly than its final rule, so that it included “the manipulation of source process parameters, exhaust gas parameters, stack parameters other than height, or other selective handling of exhaust gas streams so as to increase the exhaust gas plume rise.” 44 Fed.Reg. at 2613-14. It narrowed the definition in response to comments that persuaded the agency that “many changes in stack dimensions and exhaust gas characteristics are made to improve the efficiency of the facility rather than to enhance dispersion.” Response to Petitions for Reconsideration of the Stack Height Rules (May 1982), J.A. at 1225 [hereinafter cited as Reconsideration Decision]. In its reproposed regulations, the agency added an explicit test of a purpose to increase plume rise and provided that combining stacks would not be deemed a dispersion technique unless there was manipulation of flow rates or temperature for the purpose of enhancing plume rise. 46 Fed.Reg. at 49,817; see id. at 49,816 (preamble says “for the sole purpose of enhancing plume rise”). It commented that “[t]he significance of other dispersion techniques is not well documented and the Agency intends to give further consideration to the need for restrictions of this type prior to promulgation.” Id. at 49,816.\nIn its final regulations, as noted, EPA abandoned the generic definition of “dispersion techniques” and limited the term to specific equipment — fans and reheaters— *218installed for the purpose of obtaining a less stringent limitation. It eliminated any test of intent in the permission to combine several stacks into one. The agency explained that the change would “prevent only the installation of equipment clearly intended to enchance [sic] plume rise.” 47 Fed.Reg. at 5867. It declined to prohibit other techniques that were accompanied by such an intent because such a test “would involve the Agency in subjective judgments that could be difficult to support.” Reconsideration Decision, supra p. 461, at 1225; accord id. at 1226 (“Such subjective judgments would be difficult to make and to enforce.”). “A test based on the installation of specific equipment accompanied by a request for a relaxed emission limit was deemed to be more workable.” Id. at 1225. EPA did not dispute that all the techniques cited by petitioners could be used in order to increase plume rise and disperse pollutants so as to lower emissions limitations.\nWhile somewhat less than ideally clear, EPA’s explanations may be read to suggest that it weighed two factors in deciding which of these techniques it would even attempt to regulate: the likelihood that they would be used as dispersion techniques, rather than as bona fide engineering improvements (i.e., the “significance” of these techniques), and the burden, both on enforcement agencies and on industry, of attempting to differentiate legitimate from illegitimate uses. EPA did not argue that use of these techniques in order to increase plume rise would not be a “dispersion technique” within the meaning of the statute. Rather, it became convinced that few would use such techniques and that the effort of catching those who did would be great. In so doing, however, we think EPA has created an exemption from the statute based upon its perceptions of the costs and benefits of enforcing the law. We find no source for such a power. See Alabama Power Co. v. Costle, 636 F.2d 323, 357 (D.C.Cir.1979) (“[T]here exists no general administrative power to create exemptions to statutory requirements based upon the agency’s perceptions of costs and benefits.”).\nAlthough EPA has not argued to the contrary, we first ascertain for ourselves that the techniques cited by petitioners are within the intended meaning of the statutory term “dispersion techniques.” The language of the Act is categorical — the amount of emission limitation “shall not be affected in any manner by .. . any ... dispersion technique” — and a broad construction is appropriate to achieve the remedial purpose intended. There is no helpful legislative history to shed light on the meaning of the term. We think the words themselves, however, sweep broadly enough to encompass at least the meaning urged by petitioners: the use of devices, alterations to the stack, or other techniques when they are significantly motivated by an intent to gain emissions credit for greater dispersion. Were such techniques not included, they could be used to enhance plume rise to such an extent as to make the limitations on stack height illusory.\nSince the regulations do not regulate all the techniques contained in this definition, the regulations effectively create an exemption not indicated in the statute itself. Such categorical exemptions are generally not favored, Alabama Power, 636 F.2d at 358, but there are two situations in which they are allowed: cases of administrative necessity and de minimis situations, id. at 358-61. EPA has vaguely invoked both of these justifications. However, both must be shown with greater rigor than EPA has brought to bear here. See id. at 359 (agency bears “a heavy burden to demonstrate the existence of an impossibility”); id. at 360 (“Determination of when matters are truly de minimis naturally will turn on the assessment of particular circumstances, and the agency will bear the burden of making the required showing.”).\nApparently the only evidence concerning whether prohibiting these techniques would yield a gain of trivial or no value (in the sense of furthering the goals of the statute) consists of EPA’s finding that “many changes in stack dimensions and exhaust gas characteristics are made to improve the efficiency of the facility rather than to en*219hance dispersion.” Reconsideration Decision, supra p. 461, at 1225, and like comments submitted by industry, e.g., J.A. \"at 1029 (comments of Utility Air Regulatory Group) (“Recombination of exhaust streams is typically done for sound economic and engineering reasons, totally apart from any environmental plume rise that might occur.”); id. at 101-02 (comments of Stearns-Roger Inc.) (listing engineering reasons for manipulating exhaust gas velocity, temperature, etc.). Even these few, unspecific, unquantified estimates do not attempt to establish that use of these techniques in order to disperse pollutants more widely would only trivially undermine the Act’s command that emissions limitations be met by direct controls. Neither the comments nor EPA’s responses suggest, for example, that there is in fact no or little incentive to implement these techniques because the potential reduction in emissions limitations would not be worth the cost. Clearly, more is required to show that a technical violation is truly de minimis.\nThere is more evidence to support EPA’s claim of administrative necessity, and that is where it has placed its primary reliance. One local agency asserted that enforcement of the original broad definition of dispersion techniques would require scrutiny of “every possible aspect of source construction, process flows, plant configuration and siting,” which, it said, was beyond its capabilities. Id. at 314 (comments of Allegheny Co. Bureau of Air Pollution Control). Several states expressed less vehement concerns about their ability to draw the lines required by the various proposals. See id. at 965 (comments of Conn. Dept. of Environmental Protection) (inquiring how a state could establish with any certainty that enhanced plume rise “was an intentional or an incidental result” of changes to stack flow characteristics); id. at 236 (comments of S.C. Dept. of Health & Environmental Control) (seeking list of stack parameters for various source categories to be used in comparing changes proposed by sources). EPA found that discerning the subjective motivation for stack and flow parameter changes, as required by its 1981 reproposal, would be “difficult.” Reconsideration Decision, supra p. 461, at 1225, 1226.\nWe do not see anything in the language, history, or purpose of section 123 that “authorizes approaches that deviate from the legislative mandate in response to concerns about feasibility,” Alabama Power, 636 F.2d at 360. The House committee report sternly cautions the Administrator to construe narrowly exceptions and permitted variances from the bar on reliance on dispersion techniques. See House Report, supra p. 440, at 93-94. Other legislative history, e.g., 123 Cong.Rec. 18,027 (1977) (remarks of Sen. Muskie) (quoted supra p. 440), as well as the detailed cabining of the Administrator’s discretion in the statute itself, suggest some distrust of the agency’s prior flexibility towards industry.\nIn the absence of an authorization to take feasibility into account in administering a particular statute, the agency may avoid implementing a statute only by showing that attainment of the statutory objectives is impossible. See Alabama Power, 636 F.2d at 359 (“the agency [bears] a heavy burden to demonstrate the existence of an impossibility” (footnote omitted)); NRDC v. Train, 510 F.2d 692, 713 (D.C.Cir.1975) (“The sound discretion of an equity court does not embrace enforcement through contempt of a party’s duty to comply with an order that calls him ‘to do an impossibility.’ ” (footnote omitted)). Especially in light of the fact that the administrative difficulties the agency cites are mere predictions, rather than conclusions drawn from good faith efforts at enforcement, see Alabama Power, 636 F.2d at 359 (“The agency’s burden of justification in such a case is especially heavy.”), the showing here falls far short.\nMoreover, even if separately determining the intent of all manipulations of stack or plume parameters that are likely to be used as dispersion techniques is in fact impossible, there nevertheless may be less taxing ways to enforce the law. EPA could, for example, develop classes of plant improvements that are clearly legitimate or clearly illegitimate. See id. at 358 (“Courts fre*220quently uphold streamlined agency approaches or procedures where the conventional course, typically case-by-case determinations, would, as a practical matter, prevent the agency from carrying out the mission assigned to it by Congress.”); see also J.A. at 236 (comments of S.C. Dept. of Health & Environmental Control) (suggesting “list of stack parameters for various source categories that can be used in the comparative analysis”). It might be able to quantify the amount of plume rise that could be presumed to have an engineering, rather than a dispersion, rationale, in the manner that one commentator suggested. Id. at 978-79 (comments of ASARCO Inc.) (proposing to permit exit velocities of 1.5 times the 95th percentile of local wind-speeds raised to the fifth power). EPA might also be able to select large classes of improvements that may be exempted from regulation because their use as dispersion techniques is no more than a theoretical possibility or their impact on the goals of the Act is otherwise trivial. By thus focusing enforcement resources narrowly on the plant improvements likely to be undertaken for the purposes of increasing dispersion, EPA should be able to reduce substantially the number of cases in which a full-scale examination of the motivation for the change will be required.7\nWe see no evidence that EPA has adequately explored these regulatory alternatives. Rather, when it appeared that the definition of “dispersion techniques” would depend on a question of intent, the agency simply caved in and allowed full credit for any plume enhancement technique not involving fans or heaters. We overturn the narrow definition of “dispersion tech-ñiques” and direct EPA to develop rules disallowing credit for all “dispersion techniques” as that term is used in section 123, unless the agency can justify its failure under the standards discussed in this opinion and in the opinion of this court in Alabama Power, 636 F.2d at 357-61.\nH. Definition of “Stack Height in Existence”\nSection 123(a) contains a grandfather clause intended to exempt pre-1971 stacks from the limitation on emission credit contained in the “good engineering practice” provision. Other dispersion techniques implemented before the enactment of the Clean Air Amendments of 1970 are also exempted from emission credit limits. The clause reads, “The preceding sentence shall not apply with respect to stack heights in existence before December 31, 1970, or dispersion techniques implemented before such date.” 42 U.S.C. § 7423(a) (Supp. V 1981).\nEPA’s final regulations define a stack “in existence” to mean that the owner or operator of the source had, by December 31,1970,\n(1) begun, or caused to begin, a continuous program of physical on-site construction of the stack or (2) entered into binding agreements or contractual obligations, which could not be cancelled or modified without substantial loss to the owner or operator, to undertake a program of construction of the stack to be completed in a reasonable time.\n47 Fed.Reg. at 5868 (to be codified at 40 C.F.R. § 51.1(gg)). Sierra Club and NRDC object that this definition is contrary to the plain English meaning of the statutory language, as well as to the legislative history. They urge a definition like that contained in the 1979 proposed regulations: “ ‘In existence’ .. . means that stack height (of a stack) which has been constructed.” 44 Fed.Reg. at 2613. EPA adverts to the legislative history and clear purpose of the provision to grandfather sources that before the 1970 amendments made good faith commitments to use certain stack heights. 1981 Responses, supra p. 451, at 1164. An EPA study of the impact of the stack height regulations stated that the change in the definition of “in existence” would ex*221empt stacks at four to eight power plants from the requirements of section 123. Impact Assessment Report for the Final Stack Heights Regulations (Dec. 1981), J.A. at 1054, 1059 [hereinafter cited as Impact Assessment Report].\nThe weightiest evidence in favor of the narrower 1979 definition is the fact that the 1977 amendments elsewhere explicitly refer to facilities as to which construction contracts had been awarded as of a certain date, suggesting that “in existence” means some stage beyond the signing of the contract. Section 123 itself in effect exempts the stacks at a single power plant in Tennessee, known as the Kingston Station, see 123 Cong.Rec. 18,480-81 (1977) (remarks of Sen. Baker), in part by referring to stacks “for which a construction contract was awarded before February 8, 1974.” 42 U.S.C. § 7423(a) (Supp. V 1981); see also id. §§ 7475(a), 7479(2) (PSD program applies to facilities “on which construction is commenced after August 7, 1977”; “commenced” defined to mean that the operator has obtained all necessary permits and has begun continuous program of construction or has entered into binding agreements to do so, which cannot be modified without substantial loss). The distinction between these provisions and the grandfather clause under review was the primary basis for EPA’s original proposal that “in existence” be defined as physically constructed. See 44 Fed.Reg. at 2611 (“Since Congress in 1977 defined ‘commenced construction’ to include the acquisition of permits, the beginning of actual construction or the entering into binding contracts, EPA believes the term ‘in existence’ must mean something more.”).\nNRDC and Sierra Club also cite language in the House committee report that “sources which raised their stacks or constructed tall stacks after the date of enactment should [not] be eligible for any credit,” House Report, supra p. 440, at 93, [U.S.Code Cong. & Admin.News 1977, p. 1172], which they say indicates an intent to include stacks under construction in section 123.\nNevertheless, we find EPA’s final definition of the term to be a reasonable one and affirm it. See supra pp. 460-61. EPA’s interpretation is necessary to make the clause equitable, which was undoubtedly Congress’s purpose. Thus, the House committee report explained that the committee “believe[d] that sources which in good faith raised their stacks before the 1970 act limited dispersion methods should not be penalized.” House Report, supra p. 440, at 93, [U.S.Code Cong. & Admin.News 1977, p. 1172]. Clearly, a source that irrevocably and in good faith contracted for a tall stack prior to the 1970 act may be penalized by application of the provision in the same way that one that had completed construction of the stack would be. Our emphasis on the words “in good faith” and “penalized” in the language from the House report is not contradicted by the passage cited by petitioners. Petitioners emphasize in their passage the words “raised their stacks or constructed tall stacks after the date of enactment,” which they say means that any stack that was not completed prior to the date of enactment should be included in the statute. The two passages appear close together and were evidently meant to refer to the same distinction between stacks that were to be included in section 123 and those that were not. Yet one uses both the words “raised” and “constructed” and the other uses just “raised,” which suggests that the words were not written with the special emphasis petitioners ascribe to them. In any case, there is no reason why the terms “raised” and “constructed” should not be read to mean the entire process of raising or constructing stack height, from beginning to end.\nAlso, a similar grandfather clause in EPA’s 1976 stack height guidelines, which we have said were, along with their 1973 predecessors, the source for much of the detail in section 123, drew the line at commencement of construction. 1976 Guideline, supra p. 440, at 7451 (“a State may not take into account the dispersive effects of an increased stack height for which construction commenced after January 31, *2221972”). Moreover, the 1976 guidelines set out this grandfather clause in a section headed, “Sources in Existence Prior to January 81, 1972,” which might have been the origin of the statutory language. Under the guidelines, a source that was under construction in 1972 would be exempt from the stack height limits, and thus “in existence,” if construction of its stack height had commenced. Thus, the term “in existence” in the guidelines could in some instances mean “under construction,” the definition urged by EPA.\nFurther evidence that Congress did not mean the term “in existence” to exclude stack heights contracted for or under construction is that the use of that term in another section of the 1977 amendments must be so read to achieve Congress’s purpose. A section of the PSD provisions requires certain sources “in existence on August 7, 1977,” to install the best available retrofit technology to reduce visibility impairment produced by the source’s emissions. 42 U.S.C. § 7491(b)(2)(A) (Supp. V 1981). The general permit provisions for new facilities require more stringent protection of visibility for all facilities “on which construction is commenced after August 7, 1977.” Id. § 7475(a); see also id. § 7479(2)(A) (definition of “commenced” to include “entered into binding agreements”). Thus, in order to provide some regulation of visibility for sources under construction or contracted for on August 7, 1977, “in existence” must be read to mean “on which construction has commenced.” EPA urges a parallel construction here. See Alabama Power Co. v. Costle, 636 F.2d 323, 396 (D.C.Cir.1979) (“[W]e must assume that the meaning of a particular term is to be consistent throughout the Act.”).\nThe legislative history of the “Kingston exemption” diminishes any inferences that may be drawn from the fact that it uses the phrase “for which a construction contract was awarded” to mean essentially what EPA urges as the definition of “in existence.” This provision was added to the bill on the floor of the Senate at the instance of Senator Howard Baker in order to exempt a particular plant in his home state of Tennessee. See 123 Cong.Rec. 18,480-81 (1977). It was thus drafted by a different author, added late in the process when it was too late to check it for consistency with other sections of the Act, and debated without the benefit of a committee report and with attention focused only on its purpose as opposed to its details. Senator Baker may have seen some ambiguity in the term “in existence” and used more specific language to ensure that his purpose was achieved. We do not think the possibility that one senator thought the statute’s grandfather clause was ambiguous rebuts the other persuasive evidence of the reasonableness of EPA’s interpretation of congressional intent.\nWe affirm EPA’s definition of “in existence.”\nSierra Club and NRDC argue that the grandfather clause is subject to abuse unless EPA bars sources from receiving emission credit for emissions from new facilities tied into their grandfathered tall stacks. Such a provision was included in the preamble to the 1979 proposed regulations, 44 Fed.Reg. at 2612 (“credit only for emissions from facilities that before December 31, 1970 were committed to tie into a stack in existence as defined in this Regulation”) but was deleted without explanation in the 1982 final regulations. EPA admits that it neglected to respond to Sierra Club’s comment that the provision be included in the final regulations themselves, but argues that the failure was at most harmless error. Since the failure to respond leaves us “to guess as to the agency’s findings or reasons,” Greater Boston Television Corp. v. FCC, 444 F.2d 841, 851 (D.C.Cir.1970), cert. denied, 403 U.S. 923, 91 S.Ct. 2229, 29 L.Ed.2d 701 (1971), and we may not uphold agency action on the basis of arguments advanced not by the agency itself, but only by counsel during litigation, FPC v. Texaco Inc., 417 U.S. 380, 397, 94 S.Ct. 2315, 2326, 41 L.Ed.2d 141 (1974), we remand this issue to allow the agency to explain why it refused to prohibit tying new sources into pre-1971 stack heights.\n*223I. Prospective Application of 1 + 1.5 Rule\nAs noted, EPA’s regulations provide two formulas for the determination of GEP height: the 2.5 Rule for use by stacks in existence (as defined in the regulations) on January 12, 1979, and the 1 + 1.5 Rule for all other stacks. 47 Fed.Reg. at 5868 (to be codified at 40 C.F.R. § 51.1(h)(2)). The dividing date is the day on which the agency published its 1979 proposed regulations, in which it first proposed the 1 + 1.5 Rule. Retroactive application of the new formula was eschewed because it was thought to be unfair to sources that “in good faith had constructed stacks in accordance with” the previously accepted 2.5 Rule. Id. at 5866.\nSierra Club and NRDC argue that the two-formula approach is contrary to the Act, which allows credit only for good engineering practice height, as determined by the Administrator. Once EPA determines that the relevant amount of downwash can be prevented by a certain height, it must give credit only for that height. Allowing application of the 2.5 Rule, the argument goes, gives credit for stack height in excess of GEP height. In addition, petitioners cite the conference committee’s report, which states the committee’s intention that “if it should be determined that' downwash, eddies, and wakes can be prevented by stacks of less than 2*6 times facility height, the Administrator’s rule should give ‘credit’ only for the height needed to avoid these conditions.” 123 Cong.Reg. 27,071 (1977).\nWe hold that the statute does not prevent EPA from allowing its past rule to be applied to stacks built before its new formula was proposed, but that the agency has erred in allowing sources that did not rely on the old formula to use it. Congress was moved to enact section 123 by evidence that during the 1970’s many sources had built tall stacks far above the heights dictated by sound engineering practice. To allow such sources to claim credit for heights up to the 2.5 Rule would be a windfall for them, unjustifiable under either the statute or the equitable considerations that govern retroactivity.\nAlthough the conference committee directed that the Administrator’s rule give credit only for whatever height he determined was needed to prevent downwash, it did not speak to whether that rule should be applied retroactively or only prospectively. The courts have addressed the limits of an agency’s implied power to apply a rule retroactively and have discerned a set of considerations that limit that power. We think that these considerations are also suggestive of the outlines of an agency’s duty to apply a rule retroactively, although the weight of each will be somewhat different. Among the considerations that enter into the consideration of retroactivity are\n[1] whether the new rule represents an abrupt departure from well established practice or merely attempts to fill a void in an unsettled area of law, [2] the extent to which the party against whom the new rule is applied relied on the formed rule, [3] the degree of the burden which a retroactive order imposes on a party, and [4] the statutory interest in applying a new rule despite the reliance of a party on the old standard.\nRetail, Wholesale & Department Store Union v. NLRB, 466 F.2d 380, 390 (D.C.Cir.1972) (retroactive application of rule developed in adjudications); see Tennessee Gas Pipeline Co. v. FERC, 606 F.2d 1094, 1116 n. 77 (D.C.Cir.1979) (same: “The relevant factors [concerning the limitations on permissible retroactivity] include the degree of retroactivity, the need for administrative flexibility, and the hardship on the affected parties.”), cert. denied, 445 U.S. 920, 100 S.Ct. 1284, 63 L.Ed.2d 605 (1980), 447 U.S. 922, 100 S.Ct. 3012, 65 L.Ed.2d 1113 (1980).\nIn this case, the new rule is a departure from both a legal rule proposed in 1973 and in effect since 1976, and an industry practice of much longer standing. See Technical Support Doc., supra p. 446, at 1080 (“[The 2.5 Rule] arose during the early part of this century as a practical formula.”); cf. NLRB v. Majestic Weaving Co., 355 F.2d 854, 860 (2d Cir.1966) (Friendly, J.) (Every case of first impression has a retroactive effect, “[b]ut the problem of retroactive *224application has a somewhat different aspect in cases not of first but of second impression, where an agency alters an established rule defining permissible conduct which has been generally recognized and relied on throughout the industry that it regulates.”). Moreover, for operators with tall, thin buildings who have met air quality standards with a stack height two-and-one-half times the height of the building, the burden of retroactivity may include expensive retrofitting of control equipment and renegotiation of contracts in order to purchase coal with lower sulfur content. See J.A. at 926 (comments of Utility Air Regulatory Group).\nThe statutory interest in applying the new rule despite individual reliance is, of course, the crucial consideration in the context of requiring an agency to apply one of its rules retroactively. Here, any retroactivity detracts from the intention to place maximum reliance on direct emissions reductions rather than dispersion. But the objective, while paramount, did not completely eclipse others, for Congress itself allowed full credit for stack height in existence before 1970. Also, the determination of GEP stack height was explicitly left to the discretion of the Administrator, and the statute here specifically envisioned the old rule that EPA seeks to retain in force for some sources. Thus, the application of that rule would not maintain a situation that Congress sought to end. Finally, we do not think the conference committee report was intended to allow only a single review of the state of engineering knowledge in order to determine what stack height is needed to prevent downwash, but rather that it would tolerate refinement of the approach as knowledge expanded. Likewise, we have noted that the technical basis for establishing certain rules may be available only after some experience in regulating the field is gained. See supra pp. 463-64 & n. 7. Yet, a rule that required that every refinement of the GEP formulas or of demonstration techniques be applied retroactively would place the natural reluctance to act unfairly or inequitably as an obstacle to implementation of those developments. We do not think the statute requires such a result, particularly since retroactive application may frequently be quite burdensome for particular sources.\nNevertheless, one of the factors to be considered in determining retroactivity is the extent of reliance on the old rule. In this case, there is persuasive evidence that many sources built stacks in the relevant period without in fact relying on the 2.5 Rule, but instead built their stacks tall in order to obtain credit for dispersion. See e.g., House Report, supra p. 440, at 81-82; 123 Cong.Rec. 16,203 (1977) (remarks of Rep. Waxman during introduction of amendments) (“[T]he utility industry in particular has tried to gain acceptance for operating methods which only disperse harmful emissions over a large area, which are unreliable in practice and which mask each source’s contribution to a region’s air quality problems.... I feel that the committee has finally, after a half-dozen years, laid this argument to rest.”); Alabama Power Co. v. Costle, 636 F.2d 323, 388 (D.C.Cir.1979) (“A good many industrial facilities . . . [built] taller-than-necessary stacks in order to achieve greater dispersion of their emissions and thus comply with national ambient standards.”). Compare Impact Assessment Report, supra p. 465, at 1059 (eight plants .built tall stacks before 1971) with Identifying and Assessing the Technical Bases for the Stack Height Regulatory Analysis (Dec. 1979) (EPA consultant’s report), J.A. at 713 (171 stacks over 500 feet tall built since 1970). Putting an end to this evasion of the act was, in fact, the primary motivation for section 123. Thus although we would be concerned by the burden caused by retroactive application of the new rule against sources that actually relied on the old rule, such concerns are rather attenuated when there was no reliance whatsoever. In these circumstances, both judicial doctrine and congressional purpose command that the agency limit the use of the 2.5 Rule to those sources that actually relied on it.\nWe remand this provision to the agency to allow it to reformulate its rule to take actual reliance into account.\n*225J. Timetable for State Implementation\nSection 406(d)(2) of the 1977 amendments provides:\nExcept as otherwise expressly provided, each State required to revise its applicable implementation plan by reason of any amendment made by this Act shall adopt and submit to [EPA] such plan revision before the later of the date—\n(A) one year after the date of enactment of this Act [Aug. 7, 1977], or\n(B) nine months after the date of promulgation by [EPA] of any regulations under an amendment made by this Act which are necessary for the approval of such plan revision.\n42 U.S.C. § 7401 note (Supp. Y 1981). In the preamble to its final regulations, EPA purported to carry out this section via a two-stage implementation process. First, the states would be allowed nine months from the promulgation of the regulations to draft and submit rules limiting stack height credit. Then, presumably after a four-month period of review by EPA, see id. § 7410(a)(2) (“The Administrator shall, within four months after the date required for submission of a [state implementation plan], approve or disapprove such plan or each portion thereof.”), the states would have another nine months to revise their emission limitations to make them consistent with the state rules. 47 Fed.Reg. at 5865-66; Reconsideration Decision, supra p. 461, at 1227.\nEPA’s two-stage process, allowing a total of twenty-two months between promulgation of EPA’s regulations and submission of revised emission limitations (followed, presumably, by another four months for EPA approval), is plainly contrary to section 406(d)(2). The “applicable implementation plan” referred to in that section is the state implementation plan required under section 110, 42 U.S.C. § 7410 (Supp. V 1981); the latter section explicitly requires that state implementation plans contain “emission limitations, schedules, and timetables for compliance with such limitations,” id.; see also id. § 7471 (requiring plan to contain “emission limitations and such other measures as may be necessary ... to prevent significant deterioration of air quality”); id. § 7502(b)(8) (same as to nonattainment provisions of Act). There is thus no place in the statutory timetable for submission of separate state regulations governing stack heights.\nMoreover, we see no place for such state regulations in EPA’s own final regulations. The regulations are detailed and precise and do not mention alternative means of compliance from which the states may pick and choose. Even if states had to adopt stack height regulations, they would probably merely mimic EPA’s version. In any case, that process could not extend the time allowed by statute for submission of implementation plans containing specific emissions limitations.\nIn its brief before this court, EPA’s lawyers assert that the agency “made a specific finding that it would be impossible for the states to completely revise their plans within nine months.” Brief of Respondents at 63 (citing J.A. at 1233). We find no such specific finding on the page cited by the brief nor in the other materials in the record regarding the timetable for state implementation. This conclusory statement certainly does not meet the “heavy burden to demonstrate the existence of an impossibility” that is required by the law, Alabama-Power Co. v. Costle, 636 F.2d 323, 359 (D.C.Cir.1979).\nEPA’s two-stage implementation plan is reversed.\nK. Timetable on Remand\nCongress directed EPA to promulgate regulations to carry out section 123 of the Act no later than six months after it was passed in August 1977. EPA’s proposed regulations were not issued until January 1979, seventeen months after enactment. Its final regulations were promulgated four-and-one-half years after the statute was passed. We have now passed the sixth anniversary of that date. During this time, polluters have not been obliged to reduce their emissions rather than rely on dispersion, because the statute must be imple*226merited by the states, which have awaited EPA’s regulations.\nPetitioners request that we direct EPA to promulgate “without delay” regulations free of the violations we have found. In light of the regulatory history set out above and the now urgent need to implement Congress’s commands, we think it best to quantify that obligation. We note that many, though not all, of the flaws we have found in EPA’s regulations were reversals of positions taken in the 1979 proposed regulations, so that we have some confidence that solutions are not beyond the realm of imagination. Others will require the expenditure of considerable effort to correct, but Congress thought EPA could solve all problems in six months and the agency has had six years. We think it appropriate to direct EPA to promulgate new final regulations that remedy the defects this court has found within six months from the issuance of our mandate, the period originally specified by Congress.\nIll\nThe following provisions of EPA’s stack height regulations are affirmed: (1) the definition of “nearby” as applied in the GEP formulas; (2) the failure to consider plume rise in deriving the GEP formulas; (3) the exclusion of flares from the definition of “stack”; and (4) the definition of “in existence.”\nThe following provisions are reversed as beyond the agency’s statutory authority: (1) the inclusion of plume impaction in the calculation of creditable stack height; and (2) the two-step, twenty-two-month timetable for state implementation of the regulations.\nWe remand the following provisions to the EPA for further action not inconsistent with this opinion: (1) the failure to apply a “nearby” limitation to GEP demonstrations; (2) the definition of “excessive concentrations”; (3) the failure to require demonstrations before stacks are raised up to formula height; (4) the definition of “dispersion technique”; (5) the refusal to prohibit new facilities from tying into pre-1971 stack heights; and (6) the grandfather clause for application of the 2.5 Rule.\nWe direct EPA to promulgate new final stack height regulations as to these issues within six months from the date of issuance of this court’s mandate.\n\nIt is so ordered.\n\n\n. Alabama Power brought before this court regulations implementing the Act’s prevention of significant deterioration (PSD) program, intended to protect areas still having relatively clean air, 42 U.S.C. §§ 7470-7491 (Supp. V 1981). See 43 Fed.Reg. 26,380, 26,388 (1978). Included was a provision that in determining a source’s emissions limitations, both the source and surrounding polluters would have their emissions modeled as though they were emitted at GEP height. Industrial petitioners urged that only the emissions from the source itself should be modeled at GEP height; the surrounding facilities should be modeled with their *196actual stack heights. We upheld the regulation. See 636 F.2d at 388-92. The instant case concerns, inter alia, the method of setting GEP height for each source.\n\n\n. The predecessor to this guideline was evidently issued only after the initiation of a contempt proceeding for failure to comply with the Fifth Circuit’s order in NRDC v. EPA. See NRDC v. EPA, 529 F.2d 755, 760 (5th Cir.1976) (“We deny the [contempt] motions ..., noting however, that such motions apparently were necessary to compel the Administrator to respond to our directive issued more than a year before.”).\n\n\n. EPA somewhat lamely suggested that the new regulations do in fact give some meaning to the word “nearby” as applied to demonstrations: “Any terrain feature which is close enough to a source to cause excessive concentrations must be considered a ‘nearby’ feature.” 46 Fed.Reg. at 49,819. If this were the statute’s command, it would be no different if the word “nearby” did not apply to demonstrations. Thus, “nearby” must effectively be read out of the statute in order to reach EPA’s interpretation.\n\n\n. The operation of the plume impaction credit is difficult to explain but, ultimately, ingeniously simple in conception. Three steps are involved. See 47 Fed.Reg. at 5867.\nFirst, the GEP stack height is calculated with regard to downwash-causing obstacles. If a violation of air quality standards is predicted by reason of the plume hitting a mountain higher than GEP height, then the source may go to the second step. If no violation is modeled, then the source cannot claim impaction credit.\nSecond, an emission limitation is set by imagining that the mountain is as tall as the GEP stack height calculated in step one. Thus, it is assumed that the mountain is short enough to permit the GEP stack height to throw the plume over the mountain, and an emissions limitation is set so that no violation will occur on the truncated mountain.\nThe third step allows the source to raise its stack up to the level at which no violation will occur on the actual mountain. The emission limitation remains at the amount set in step two. That is, the source will receive credit for the height of the stack necessary to throw the plume over the mountain.\nThe impaction credit will result in a considerably higher emissions limitation than would be permitted if the source had to model its emissions at the original GEP height so as to avoid violations on the mountain. If carefully administered — e.g., if the emissions limitation required in step two reduces emissions to precisely the amount needed to avoid violations on the truncated mountain and no lower — the credit will, however, give the source an emissions limitation no higher than it would give a similar utility located in flat terrain. The result of the impaction credit will only be to allow the mountain utility, as compared to a source in flat terrain, to disperse the same or a lower amount of emissions over wider territory.\n\n\n. EPA also suggested that the 1980 decision to require demonstrations for all increases of existing stacks was intended as a response to a temporary problem, rather than a permanent solution. It explained the decision as follows: “In June 1980, faced with the requirement to approve or disapprove State Implementation Plan revisions for two Ohio power plants and still in the process of evaluating its policy on increase [sic] stack heights at existing facilities, EPA established as stringent a policy as possible to handle the issue.” 1981 Responses, supra p. 451, at 1172.\nWe note that EPA has at times attributed a good deal more permanence to its 1980 decision than it now does. See 46 Fed.Reg. 28,650, 28,650 (1981) (withdrawing the policy) (“At that time, EPA expected to publish final stack height regulations incorporating the revised policy within a few months.”); 46 Fed.Reg. 8581, 8582 (1981) (allowing comment on what it termed “the June 1980, final rulemaking”). But see id. (“EPA decided to modify its [1979] stack height proposal”) (emphasis added). Nevertheless, we realize that EPA issued the new policy without public comment and hurriedly, in order to comply with a commitment it had made to an appeals court in litigation over the agency’s relaxation of a compliance date for the Ohio plants’ emissions limitation. See id. at 8581. Thus different pressures were acting on the agency than when it promulgated the rules under review, so it might well have decided to err on the side of pollution control. We thus do not give any great weight in our current review to the fact that the 1980 decision was actually implemented as opposed to merely proposed. See generally Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., -U.S. -, -, 103 S.Ct. 2856, 2866, 77 L.Ed.2d 443 (1983) (“an agency changing its course by rescinding a rule is obligated to supply a reasoned analysis for the change beyond that which may be required when an agency does not act in the first instance”). In either case, EPA must at least explain its rejection of alternatives with reasons that are not contradicted by the record. We hold that it has not done so here.\n\n\n. Nevertheless, the pollutants produced by the combustion that takes place at the top of flares are regulated under the Clean Air Act just as the similar pollutants produced by the combustion that occurs at the base of the stacks are. See, e.g., J.A. at 346-47 (comments of Michigan Dept. of Natural Resources) (describing PSD limitations placed on ground level sulfur dioxide impact of burning hydrogen sulfide derived from natural gas). Therefore, there is presumably an incentive for a source to raise its flare above the height dictated by safety in order to be able to increase the dispersion of the pollutants produced. See id. (30-meter limit on flare height would reduce permissible SO2 emissions from over 8000 to about 2000 pounds per day). This is precisely the kind of dispersion usage that Congress sought to forbid.\n*217While it may be impracticable to prevent this abuse via the “good engineering practice” formulation developed by Congress to deal with stack heights, excessive flare height still might be a “dispersion technique” for which credit is barred under section 123(a)(2), 42 U.S.C. § 7423(a)(2) (Supp. V 1981). We do not think it plain, as intervenor American Petroleum Institute asserts, that the term “any other dispersion technique” is directed at dispersion stratagems other than height. The statute commands that the degree of emission limitation required for “any air pollutant under an applicable implementation plan” shall not be affected by either stack height or any other dispersion technique. Since emissions of flares are regulated by the applicable implementation plans, and excess flare height is not excess “stack height,” it may well be one of the “other dispersion techniques” regulated under section 123(a)(2).\nWe make no ruling on this question. While NRDC and Sierra Club have advanced the argument before this court, it was apparently not put before the agency, and we do not have its response. See J.A. at 911 (Sierra Club comments); id. at 1217 (petition for rehearing); cf. United States v. L.A. Tucker Truck Lines, 344 U.S. 33, 37, 73 S.Ct. 67, 69, 97 L.Ed. 54 (1952) (“Simple fairness to those who are engaged in the tasks of administration, and to litigants, requires as a general rule that courts should not topple over administrative decisions unless the administrative body not only has erred but has erred against objection made at the time appropriate under its practice.”). Moreover, there is no suggestion that flare height above that required for safety has ever been used as a dispersion technique or that the problem is anything more than a theoretical one. See generally infra pp. 463-64.\n\n\n. We do not, of course, specifically approve the use of any of these techniques for easing the regulatory burden, but offer all of them merely as suggestions of ways in which the claimed impossibility of inquiring into intent in all cases may be mitigated. Others will no doubt occur to the agency as it gains experience in the field.\n\n", "ocr": true, "opinion_id": 7850490 } ]

"2010-07-22"

[ "297 Conn. 929" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nThe defendant’s petition for certification for appeal from the Appellate Court, 121 Conn. App. 699 (AC 31086), is denied.\n", "ocr": true, "opinion_id": 7850602 } ]

"2010-10-19"

[ "298 Conn. 933" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nThe named defendant’s petition for certification for appeal from the Appellate Court, 123 Conn. App. 260 (AC 30472), is denied.\nG. Randall Avery, in support of the petition.\nDecided October 19, 2010\nROGERS, C. J., and EVELEIGH, J., did not participate in the consideration of or decision on this petition.\n", "ocr": true, "opinion_id": 7850670 } ]

"2011-02-17"

[ "300 Conn. 913" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nThe plaintiffs petition for certification for appeal from the Appellate Court, 125 Conn. App. 903 (AC 30975), is denied.\nROGERS, C. J., did not participate in the consideration of or decision on this petition.\n", "ocr": true, "opinion_id": 7850746 } ]

"2011-12-20"

[ "303 Conn. 917" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nThe named defendant’s petition for certification for appeal from the Appellate Court, 131 Conn. App. 906 (AC 32938), is denied.\n", "ocr": true, "opinion_id": 7850939 } ]

"1985-03-15"

[ "244 U.S. App. D.C. 170", "756 F.2d 191" ]

[ { "author_str": "Scalia", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nOpinion for the Court filed by Circuit Judge SCALIA.\nSCALIA, Circuit Judge.\nAtlanta Gas Light Company petitions under 15 U.S.C. § 3416(a)(4) for review of a Federal Energy Regulatory Commission order approving the curtailment plan of Southern Natural Gas Company — that is, its plan for distributing gas among its customers in times when it is unable to acquire sufficient supplies to cover all their orders. The. principal issue on appeal is whether the portion of the plan limiting the preferential claim of statutorily prescribed priority users to the volume of gas which they had contracted for an absolute right to receive (“contract demand\" gas) is consistent with Title IV of the Natural Gas Policy Act of 1978 (“NGPA”), 15 U.S.C. §§ 3391-3394 (1982), and with Commission regulations.\nI\nIn 1973, Southern Natural Gas Company (“Southern”) submitted to the Commission 1 a curtailment plan for its interstate pipeline system. The Commission approved an interim, modified version of the plan in its Opinion No. 747, Southern Natural Gas Co., Docket Nos. RP74-6 and RP72-74, Opinion and Order Prescribing Interim Curtailment Plan, 54 F.P.C. 2298 (1975). This version included a provision— encompassed in § 9.7(1) of Southern’s tariff — that limited the noncurtailable requirements of certain of Southern’s priority customers to contract demand. Contract demand (“CD”) is that quantity of gas which a customer has an unqualified contractual right (generally accompanied by a minimum contractual obligation) to purchase. It generally comes at a higher cost per unit volume than its opposite, authorized overrun (“AO”) gas, which a customer may elect to purchase and the pipeline is contractually bound to deliver only if and when available.\nWhile court review of Opinion No. 747 (and of an opinion granting in part and denying in part rehearing, Opinion No. 747-B, Southern Natural Gas Co., Docket Nos., RP74-6 and RP72-74, Opinion and Order Granting Rehearing in Part and Denying Rehearing in Part, 55 F.P.C. 2358 (1976)) was pending, the parties, including all parties to the present action, reached a settlement adopting a permanent curtailment plan. The settlement restricted the application of the contract demand limitation to days when the forecast mean temperature fell to 48° F or below.2 The Commission approved the settlement. Opinion No. 5, Southern Natural Gas Co., Docket Nos. RP74-6 and RP72-74, Opinion and Order Approving Settlement Prescribing Permanent Curtailment Plan, 1 F.E.R.C. (CCH) ¶ 61,144 (1977).\nOne year later, Congress adopted the NGPA, Pub.L. No. 95-621, 92 Stat. 3351 (codified as amended at 15 U.S.C. §§ 3301-3432 (1982)). Section 401 of the Act provides for an “end-use” priority distribution *173scheme under which several categories of users — primarily residential, small commercial, and essential agricultural users — receive preferential treatment in the event of gas shortages.3 In Orders Nos. 29 and 29-C, the Commission adopted regulations implementing this section of the NGPA. Order No. 29, FERC Statutes and Regulations (CCH) ¶ 30,053 (1979) (Final Regulation for the Implementation of Section 401 of the NGPA); Order No. 29-C, FERC Statutes and Regulations (CCH) ¶ 30,092 (1979) (Final Amending Regulation for the Implementation of Section 401 of the NGPA). The regulation at issue here provides that “[a]ll deliveries to all customers of the interstate pipeline for all volumes of natural gas not included in priorities 1 and 2 shall be fully curtailed by the interstate pipeline before priorities 1 and 2 entitlements are curtailed.” 18 C.F.R. § 281.-205(b) (1984).4 The Commission also directed interstate pipelines to file tariff sheets bringing their curtailment plans into conformity with the Commission’s rules. 18 C.F.R. § 281.204(a).\nOn October 2, 1979, Southern responded by filing proposed tariffs in Commission Docket No. TC80-26. The proposed tariffs modified Southern’s index of requirements to correspond to the new NGPA categories, but made no change in § 9.7(1). Atlanta Gas Light Company (“Atlanta”) protested Southern’s filing, arguing that it violated § 401 of the NGPA and Commission Orders No. 29 and No. 29-C. On October 31, 1979, the Commission accepted Southern’s tariff sheets for filing, suspended them for five months, and ordered an expedited hearing. At the same time, the Commission noted that Southern had the option of seeking special relief pursuant to § 502(c) of the NGPA, 15 U.S.C. § 3412(c), which allows adjustment “as may be necessary to prevent special hardship, inequity, or an unfair distribution of burdens.”\nWhile not conceding that its filing was inconsistent with the Order No. 29 series, Southern thereafter withdrew the proposed tariffs and filed an adjustment application for special relief with the Director of the Office of Pipeline and Producer Regulation (“OPPR”), requesting that the same tariff *174sheets be permitted to become effective. In May 1980, the Director of OPPR issued an order granting Southern special relief on the ground that while § 9.7(1) could result in gas deliveries to certain lower priority users in preference to higher priority users in violation of Order No. 29, any modification of the section would be unfair and reopen the years of litigation that resulted in the Opinion No. 5 settlement. Southern Natural Gas Co., Docket No. SA80-59, Order of the Director, Office of Pipeline and Producer Regulation, Granting Adjustment, 11 F.E.R.C. (CCH) II 62,124 (1980).\nAtlanta and two other parties took an administrative appeal from the Director’s order. In the meantime, the Commission permitted Southern’s proposed tariff sheets to become effective. On September 23, 1981, after a two-day evidentiary hearing, the presiding officer found that the Director's order granting special relief was based on the erroneous assumption that § 9.7(1) was inconsistent with Order No. 29- Southern Natural Gas Co., Docket No. SA80-59, Proposed Order of Presiding Officer, 16 F.E.R.C. (CCH) ¶ 62,615 (1981) (“Proposed Order”). The presiding officer concluded instead that the priority entitlements designated by the Commission were protected only within a distributor’s contract demand.\nFollowing the filing of comments by interested parties, the Commission, on July 16, 1982, affirmed and adopted the proposed order of the presiding officer. Southern Natural Gas Co., Docket No. SA80-59, Order Affirming and Adopting Proposed Order of Presiding Officer, 20 F.E.R.C. (CCH) 1161,056 (1982) (“Commission Order”). The Commission specifically affirmed the presiding officer’s finding that Order No. 29 simply required a pipeline to service high priority and essential agricultural requirements up to contract limitations. It also held that changes in Southern’s index of requirements did not require modification or elimination of § 9.7(1). Commissioner Hughes concurred on the ground that the Commission should have granted the adjustment as provided in the earlier decision of the Director of OPPR. Two months later, the Commission denied rehearing. Southern Natural Gas Co., Docket No. SA80-59, Order Denying Rehearing, 20 F.E.R.C. (CCH) 1161,309. (1982). This timely petition for review followed.\nII\nSince Atlanta’s complaint before this court centers on the operation of § 9.7(1), and since even respondent concedes the provision is “unusual,” it is worth reviewing the reasons for its inclusion in Southern’s curtailment plan. In 1973, Southern proposed a basic curtailment scheme that used as a baseline the requirements of users on the Southern system at 70° F— i.e., their overall need for fuel as opposed to that portion of their need which Southern had a contractual commitment to supply. As the mean temperature descended through levels below 70° F, adjustments were made in all allocations to assure continued satisfaction of the increased requirements of residential and small commercial customers.\nThis temperature sensitive adjustment, however, could lead to the inordinate expansion of some requirements at very low temperatures. Moreover, since “requirements” were computed without regard to what the retailing utilities had contracted to receive, and therefore without regard to what were their other available sources, customers had no incentive to use more expensive supplemental supplies, through such devices as peak-shaving,5 during the winter. As the Commission explained in its Opinion No. 747, “Even a cursory review of the problem shows the need for [limitation on temperature adjustment]. The ability of the customer to avoid any peak-shaving coupled with the huge monetary advantage *175of using pipeline supplies would defeat Southern’s ability to meet wintertime curtailment levels fairly if [a limitation] were not imposed.” 54 F.P.C. at 2365.\nWith the need for limitation of temperature adjustment apparent, the question then became what was the appropriate limit to choose. The limit chosen by Southern, and approved by the Commission, was contract demand. The contract demand limitation restricted the total allocation to any of Southern’s customers for priorities 1 through 3 to that customer’s contract demand quantity. The rationale for this approach was explained by the presiding officer below:\nSouthern’s customers had traditionally relied on their own supplemental supplies to varying degrees to satisfy increased requirements at low temperatures. For example, certain customers had contracted with Southern for an amount of natural gas sufficient to satisfy their requirements at all temperatures. Other customers, in order to maintain a high load factor, contracted for amounts of natural gas less than requirements and utilized supplemental supplies to satisfy their requirements at low temperatures. Contract demand provided a relatively accurate gauge of the ... extent to which each of Southern’s customers had historically relied on Southern to satisfy these increased requirements as temperatures decreased.\nProposed Order, supra, 16 F.E.R.C. (CCH) at p. 64,162. The contract demand limitation is embodied in § 9.7(1) of Southern’s tariff. In a settlement approved by all parties to the present action and the Commission, see Opinion No. 5, supra, § 9.7(1) was made applicable only on days when the forecast mean temperature is 48° F or lower.\nAtlanta’s principal argument here and before the Commission is that the passage of the NGPA since the approval of § 9.7(1) requires the reexamination and rejection of that provision. Atlanta points out that under certain combinations of gas supply and temperature conditions, § 9.7(1) allows deliveries of gas to low priority users while deliveries to priority 1 through 3 users are restricted. That is unquestionably true, since the whole purpose of § 9.7(1) is to force the use of supplemental sources of supply by priority users. Atlanta concludes from this fact that § 9.7(1) violates the NGPA provisions and the implementing Commission regulations protecting priority users and, therefore, that the Commission order approving this provision must be vacated.\nThis argument must be rejected. As explained earlier, the whole nature of “authorized overrun” gas — and the reason it generally comes at a cheaper price — is that it is only provided as available, after the needs of the pipeline’s “contract gas” customers have been satisfied. When the latter needs consume the total pipeline supply, AO deliveries are not available and not called for. If the contract gas needs consume a large proportion of the total supply, some but not all AO deliveries will be available. In the latter situation, it is not out of accord with accepted usage to refer to the disfavored AO customers as having been “curtailed”' — as the “curtailment plan” involved in the present case demonstrates. But we think the word in the operative provisions of the statute, see 15 U.S.C. §§ 3391(a), 3392(a), bears, if it does not require, a narrower interpretation, referring to a “cutting back” from some required and contracted-for level of delivery — i.e., a failure to comply with CD volume obligations. Since the statute is “silent or ambiguous” as to which of these meanings is intended, the question before us is “whether the agency’s answer is based on a permissible construction.” Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., — U.S. —, 104 S.Ct. 2778, 2782, 81 L.Ed.2d 694 (1984). We think it is.\nThe narrower construction is particularly reasonable in light of the absence of any indication in the legislative history of an intent to produce the massive effects which the other construction would entail. Specifically, it would convert the NGPA cur*176tailment provisions and the implementing regulations from a means of allocating gas, in times of shortage, among those who have a contractual entitlement to it, to a means of conferring entitlements where none existed before and of invalidating innumerable private contractual arrangements. Moreover, the narrower interpretation is more compatible with the purposes of the NGPA, avoiding the consumption of scarce natural gas by users who can readily switch to another fuel, and the consequent deprivation of all energy to “captive” gas users.6 Since, by and large if not uniformly, AO customers are precisely those who have alternate sources (such as propane gas used in “peak-shaving”) and CD customers are precisely those who have nowhere else to turn, it makes eminent sense to assure that the entitlements of contract customers are satisfied before any overrun customers are served. Interpreting the word “curtailment” in the Act as applicable only to cut-backs in CD service achieves this intelligent and hence presumably intended result. This is not to say that the Commission cannot, pursuant to “its broad authority to regulate the interstate transportation of natural gas,” Process Gas Consumers Group v. Dep’t of Agriculture, 694 F.2d 778, 784 (D.C.Cir. 1982) (en banc) (footnote omitted), require the statutory curtailment priorities to be applied, at least in specified cases or circumstances, to AO gas as well. But the statute itself is reasonably interpreted not to compel that consequence across the board.\nEarlier opinions of this court support the Commission’s interpretation. In Process Gas Consumers Group v. Dep’t of Agriculture, 694 F.2d 728, 750 (D.C.Cir.1981) we said:\nThus, although Congress was clearly concerned in regards to agricultural users that shortages of natural gas would have a devastating effect on the cost and availability of food and fiber, there is nothing in either the NGPA or its legislative history to suggest that where the agricultural user is subject to a ceiling on demand during periods of normal operation, the supply restriction should become inoperative by the existence of a supply curtailment.\nAccordingly, we affirm the use of a certificate or contract provision as a ceiling on the demand for agricultural users.\nOur en banc decision in Process Gas Consumers Group v. Dep’t of Agriculture, 694 F.2d at 787 n. 31, reaffirmed this holding: “The only limitation on serving new agricultural demand is that the demand fall within contract and certification amounts____ This limitation was upheld by the panel opinion in this case and was not vacated as part of this en banc proceeding. See Process Gas II, 694 F.2d at 749-51.”\nAtlanta makes two further arguments, more narrowly confined to the facts of this case. The Commission’s regulations adopted in Order No. 29, applying the foregoing principle that the curtailment limitations govern only contract gas deliveries, provide that “[njotwithstanding any other provisions of this subpart, an interstate pipeline ... shall not be required to deliver to any customer volumes of natural gas ... which exceed the volumes of natural gas that the interstate pipeline may deliver to such customer without causing the interstate pipeline to violate any ... volumetric limitations established in the contract between the interstate pipeline and such customer.” 18 C.F.R. § 281.204(c)(2) (1984) (emphasis added). Atlanta argued before the Commission that since the only formal contract it has with Southern is the stan*177dard service agreement for the purchase and sale of CD gas, the § 9.7(1) limitation here (referred to only in the AO rate schedule) is not “ ‘established in [a] contract’ ” with it and is therefore unenforceable. The Commission responded that the CD service agreement incorporated by reference the AO rate schedule, which was part of the attached Exhibit A. Commission Order, 20 F.E.R.C. (CCH) at p. 61,121. Atlanta has replied on this appeal that the agreement by its terms provides only that “[g]as shall be purchased and sold hereunder [i.e., under the CD purchase agreement] ... under the provisions of the Company’s rate schedule, designated in Exhibit A hereto” (emphasis added). Brief for Petitioner at 42. Since, Atlanta argues, only CD gas is at issue, only the CD rate schedule and not the AO rate schedule could be referred to.\nWe would in any event be disposed, on a matter of contract interpretation, “to accord great weight to the judgment of the expert agency that deals with agreements of this sort on a daily basis.” Kansas Cities v. FERC, 723 F.2d 82, 87 (D.C.Cir.1983). But in fact we find it difficult to understand both Atlanta’s argument and the Commission’s response. There is no reason why, as Atlanta’s argument assumes, the provisions of § 9.7(1) can only be imposable upon Atlanta through the Commission’s curtailment regulation, and as mandated by that regulation. It suffices if § 9.7(1) is a valid tariff provision not in violation of any of the Commission’s regulations. The Commission’s response to this argument is also incomprehensible, since it seems to concede (as Atlanta assumes) that the “volumetric limitations” referred to in the regulation, and hence also presumably the “delivery requirements” in the regulation limited by the “volumetric limitations,” refer to AO as opposed to exclusively CD gas. That position is thoroughly consistent with Atlanta’s argument, but is quite at odds with the Commission’s view of the meaning of both the statute and the implementing regulations. But while we do. not consider the Commission’s response a comprehensible one, since Atlanta’s objection in any event presented a non-problem, we find this exchange of irrelevancies no basis for overturning the Commission’s decision.\nAtlanta also notes one peculiar effect of the Commission’s order here. A portion of the requirements in Southern’s new priority 2.1 were included, before the adoption of the NGPA, in priorities 4 through 9. When Southern upgraded these requirements to conform with the NGPA classification scheme, they became subject to the operation of the § 9.7(1) limitation as the lower classifications did not — thus causing, insofar as AO distribution was concerned, “the protection of those requirements against curtailment [to be] decreased, exactly opposite to the intended effect of the NGPA.” Brief for Petitioner at 24. The perverse effect is unquestionable. Because of the peculiar nature of the settlement agreed upon for allocation of AO gas in the Southern system — explicitly designed to prevent inordinate expansion of the demands of priority 1 through 3 users — the effect of elevating certain uses to those priorities was, insofar as AO supply is concerned, to deprive them of gas rather than entitle them to it. We are not concerned that this constitutes in and of itself a violation of the NGPA, since the Act’s curtailment requirements, as we have seen, do not strictly apply to AO gas. But the Commission cannot have it both ways: It cannot assert that the curtailment priorities do not apply to AO supply, yet simultaneously approve what is in effect a revision of the Southern AO settlement achieved by blindly redefining the priorities of that settlement to conform with those of the NGPA. If the NGPA only affected priorities within the CD supply, which supply as a whole is entirely protected when the § 9.7(1) restrictions are triggered, there is no apparent reason why the new NGPA priorities should be given any effect upon the carefully calculated and agreed-upon distribution scheme for AO gas when temperatures fall below 48 degrees — a scheme concededly designed not to protect priority users, but to calibrate pressure upon distri*178bution companies to bring on line their supplemental supplies. Indeed, to permit the NGPA priorities automatically to affect this scheme appears to violate the Commission’s policy set forth in Order No. 29:\nIn all other respects, it is the Commission’s intention to preserve the existing base period data and method of implementation of existing interstate pipeline curtailment plans. We are particularly mindful of the Statement of Managers [of the bill that became the NGPA] which expresses a clear desire to avoid disruption of existing curtailment plans upon implementation of Section 401.\nOrder No. 29, FERC Statutes and Regulations (CCH) at p. 30,362. We find unpersuasive the Commission’s ipse dixit that “[t]he role assigned to distribution company supplemental supplies by Section 9.7(1) is not static,” and “changes in response to changes in the index of requirements.” Commission Order, 20 F.E.R.C. (CCH) at p. 61,119. It may indeed, if the parties agree to or the Commission approves a revision of priorities for § 9.7(1) purposes based upon the rationale of § 9.7(1) — which is not (and is indeed quite the opposite of) the NGPA rationale of favoring those users defined as priority users in the statute. It is noteworthy that the Commission staff agreed with Atlanta on this point. We are inclined to as well, but find that we need not reach the issue.\nNeither before the Commission nor on this appeal did Atlanta raise this apparently improper use of NGPA priorities as the basis for a claim that the Southern tariff’s old definition of priorities should have been left in effect. To the contrary, it sought to convert this into merely one piece of evidence demonstrating the truth of a quite different point — that § 9.7(1) was in its totality invalidated by the NGPA, which requires the application of NGPA priority service requirements across the board, to CD and AO gas alike. Thus, in Atlanta’s brief on appeal the “perverse effect” point is merely a subhead of an argument entitled “The Commission majority imposes service obligations on the local distribution companies that the NGPA has assigned to the interstate pipelines.” Brief for Petitioner at 22; see id. at 24. Whatever may be the propriety of what the Commission did in this regard, we will not reverse its action on this appeal, either because Atlanta cannot fairly be regarded as having raised the point, see Atlantic Richfield Co. v. FPC, 585 F.2d 943, 946 (9th Cir.1978), or because we have no reason to believe that the unrequested remedy which the point would justify (remand to consider reversion to former tariff priorities while leaving § 9.7(1) otherwise in effect) would provide relief significantly helpful to Atlanta, cf. North Carolina v. FERC, 730 F.2d 790, 798-99 (D.C.Cir.1984).\nAtlanta’s other objections are even less substantial and warrant no separate discussion. For the reasons stated, the Commission order approving Southern’s filing must be upheld and the' petition for review is\n\nDenied.\n\n\n. Until 1977, the Federal Power Commission was the federal agency in charge of regulation of natural gas. Its functions in that regard were transferred to the Federal Energy Regulatory Commission on August 4, 1977. Department of Energy Organization Act, Pub.L. No. 95-91, § 301(b), 91 Stat. 565, 578 (1977) (codified at 42 U.S.C. § 7151(b) (1982)). This opinion refers to both agencies as “the Commission.\"\n\n\n. Section 9.7(1), which embodies the limitation agreed to by the parties, provides in pertinent part:\n(1) COMPANY shall maintain an Index of Requirements which shall specify for each PURCHASER at each delivery point the requirements referred to in Section 9.2. Absent a finding by the Commission of extraordinary circumstances, the requirements reflected in such Index for priority-of-service categories (1) through (3) as set out in Section 9.2 shall never exceed a PURCHASER'S applicable CONTRACT DEMAND or MAXIMUM DELIVERY OBLIGATION on any day when the forecast mean temperature at Birmingham, Alabama is 48 degrees Fahrenheit or lower.\n\n\n. Section 401(a), 15 U.S.C. § 3391(a), provides in relevant part:\n[T]he Secretary of Energy shall prescribe and make effective a rule ... which provides that notwithstanding any other provision of law (other than subsection (b) of this section) and to the maximum extent practicable, no curtailment plan of an interstate pipeline may provide for curtailment of deliveries of natural gas for any essential agricultural use, unless such curtailment — ■\n(1) does not reduce the quantity of natural gas delivered for such use below the use requirement specified in subsection (c) of this section; or\n(2) is necessary in order to meet the requirements of high-priority users.\nSection 401(f)(2), 15 U.S.C. § 3391(f)(2), defines “high-priority user” as:\nany person who—\n(A) uses natural gas in a residence;\n(B) uses natural gas in a commercial establishment in amounts of less than 50 Mcf on a peak day;\n(C) uses natural gas in any school, hospital, or similar institution; or\n(D) uses natural gas in any other use the curtailment of which the Secretary of Energy determines would endanger life, health, or maintenance of physical property.\nSection 402(a), 15 U.S.C. § 3392(a), provides similar protection for \"deliveries of natural gas for any essential industrial process or feedstock use____”\n\n\n. The numbers used to designate priorities are somewhat confusing. The NGPA, while giving priority to certain types of gas, does not itself create any numbering scheme. The Commission’s regulations, however, set up two numbered priorities: priority 1 for “high-priority entitlements” and priority 2 for \"essential agricultural use requirements.” See 18 C.F.R. § 281.205(a) and definitions contained in 18 C.F.R. § 281.203(a)(2), (4) & (5). Southern’s tariff at issue here sets up several numbered priorities including: priority 1, essentially paralleling the Commission’s priority 1; priority 2.1, essentially paralleling the Commission's priority 2; priority 2.2 for gas used for ”[l]arge commercial requirements] of 50 Mcf or more on a peak day not specified in (1) and (2.1), industrial requirements for plant protection, feedstock and process needs, and pipeline customer storage injection requirements”; and priority 3 for gas used for ”[a]ll other industrial requirements below 300 Mcf per day.” See General Terms and Conditions, §§ 9.2, 9.8, reprinted in R. at 861, 863. To avoid confusion, all priority numbers referred to in the balance of this opinion come from Southern’s numbering scheme.\n\n\n. \"Peak-shaving\" refers to the practice of adding propane air mixtures to augment supplies of natural gas during periods of peak demand. See Laclede Gas Co. v. Amoco Oil Co., 522 F.2d 33, 40 n. 4 (8th Cir.1975).\n\n\n. See 15 U.S.C. §§ 3391(b), 3392(b), which entirely exclude from the priority categories of \"essential agricultural use” and “essential industrial process and feedstock uses,” respectively, a use for which a fuel other than natural gas is \"reasonably available” and \"economically practicable.” It is possible to argue, of course, that this explicit statutory provision implies that the availability of alternate fuel is not relevant for any other purposes. It seems to us more plausible however, that a factor important enough to disqualify some otherwise preferred uses from priority status would also be considered in determining the nature of the supplies (all supplies or only contracted-for requirements) to which the priority status applies.\n\n", "ocr": true, "opinion_id": 7851111 } ]

"1984-09-11"

[ "2 Conn. App. 573" ]

[ { "author_str": "Hull", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nHull, J.\nThis appeal1 by the guardian ad litem for unborn and unascertained remaindermen under the will of the decedent, Frederick F. Brewster, is from a judgment of the trial court ordering the Hamden Probate Court to approve the trustee’s account under that will for the 1980-81 trust year. The guardian ad litem alleges that the court erred by construing the will in a manner which allowed the trustee to pay the entire income of the trust in question to the beneficiary thereof during the 1980-81 trust year. We find no error.\nThe facts are not in dispute. The will of Frederick F. Brewster, duly probated in the district of Hamden, created several trusts, one of which was for the benefit of his granddaughter, Pamela Brewster Duffy (The Duffy Trust).\nPamela Duffy was bom on May 24,1956, and reached the age of twenty-one in 1977. The Duffy Trust was similar to eight other trusts created by the testator for each of his grandchildren. Each of the trusts provides, essentially, that from the date of the creation of the trust until the beneficiary of that trust reaches the age of twenty-one, the income may be used and expended by the trustee, at its discretion, for the support, maintenance, education and welfare of the beneficiary. After *575the beneficiary’s twenty-first birthday, the trustee is directed to pay to her one half of the annual trust income, and, upon the occurrence of the beneficiary’s thirtieth birthday, the trust terminates and the corpus is to be transferred to her.2\nOn April 3,1980, when Pamela Brewster Duffy was twenty-three years of age, she requested that the trustee pay her all of the net trust income under her trust so that she could pay off a demand note which she had made. The trustee paid over to her the trust income in the amount of $69,130.26 and, on October 23, 1981, it filed its annual account for the trust with the Hamden Probate Court.\n*576After a hearing on this account, held as a result of the objection of the guardian ad litem for unborn and unascertained remaindermen, the Probate Court disallowed the account on the grounds that the distribution of the income to Duffy was contrary to the provisions of the will. The trustee appealed to the Superior Court and the matter was referred to a state referee for further hearings. The referee sustained the appeal and ordered the Probate Court to approve the trustee’s account. From that order the guardian appeals, claiming error in the referee’s construction of the will.\nThe focus of this appeal is whether the referee properly construed that portion of the will which delineates the powers and duties of the trustee over the portion of the trust income which is not paid to the beneficiary as a matter of right. While the terms of the trust are clear that one half of the annual trust income is to be paid to the beneficiary yearly, it is as to the other half of the income that a dispute arises. Clause (b) of part II of article nine of the will,3 while it expressly modifies the obligation of the trustee to the benefici*577ary once she reaches the age of twenty-one, does not expressly revoke the trustee’s power to use and expend the trust income, at its discretion, for the support, maintenance, education and welfare of the beneficiary.\nIt is a long accepted canon of construction that “[w]ords . . . are not to be construed as importing a condition if they are fairly capable of a different construction.” Hershatter v. Colonial Trust Co., 136 Conn. 588, 594-95, 73 A.2d 97 (1950). Similarly, “an express and positive devise or bequest in fee cannot be cut down to an inferior estate by a subsequent clause in the will unless that is equally express and positive. Fanning v. Main, 77 Conn. 94, 99, 58 A. 472 [1904]; Hull v. Hull, 101 Conn. 481, 486, 126 A. 699 [1924]; Peyton v. Wehrhane, 125 Conn. 420, 426, 6 A.2d 313 [1939].” Stanton v. Stanton, 140 Conn. 504, 511, 101 A.2d 789 (1953); see also Pond v. Porter, 141 Conn. 56, 65, 104 A.2d 228 (1954).\nWith respect to the present will, we hold that, absent an express intent to the contrary, the modification of the trustee’s duties which occurs when the beneficiary reaches the age of twenty-one should not be construed to terminate its discretion as to the expenditure of the remaining one half of the trust income for the benefit of the beneficiary.\nThis construction of the will is further supported by the rule that, if possible, effect is to be given to all parts of a will; Hills v. Hart, 136 Conn. 536, 543, 72 A.2d 807 (1950); and that the separate parts of a will are to be harmonized where possible. Reaney v. Wall, 134 Conn. 663, 667, 60 A.2d 505 (1948); Cumming v. Pendleton, 112 Conn. 569, 574, 153 A. 175 (1931). Here, the only way to give this entire provision of the will continuing application after the beneficiary of the trust attains the age of twenty-one is to interpret it to pro*578vide the trastee with continuing discretion over the half of the annual income not distributed as a matter of course.\nIn addition, in clause (d) of part II of article nine of the will, the intent of the testator on this issue is further demonstrated. That provision dictates that, upon reaching the age of thirty, the beneficiary is to receive the corpus of the trust and “any accumulated, unexpended or accrued income.”4 It is clear from this provision that the testator did not intend that a set sum would be accumulated at the termination of the trust. The testator’s use of the word “unexpended” here suggests that he foresaw the situation in which there would be no unexpended income from the trust. It definitely suggests that the amount which might be left at the termination of the trust was very uncertain. Certainly, if the trustee’s discretion ended when the beneficiary attained the age of twenty-one, it would be guaranteed that one half of the income for at least nine years would have accumulated. Yet, the testator did not intend or provide for this result, or he would have inserted the words “all income” or simply “the income” instead of “any income.” See Hartford-Connecticut Trust Co. v. Hartford Hospital, 141 Conn. 163, 169, 104 A.2d 356 (1954); New Haven Bank v. Hubinger, 117 Conn. 417, 424, 167 A. 914 (1933). Rather, he conceived that during the nine years immediately prior to termination of the trust, some or all of that income might be distributed to the beneficiary.\nHaving determined that the trustee did have the discretion to disperse the remaining trust income, we cannot say that the trustee’s disbursal of those funds was, in this case, an abuse of that discretion.5 The terms *579of the trust do not limit the trustee’s discretion in any way, as would be the case, for example, had the words “if necessary” been used. See Stempel v. Middletown Trust Co., 127 Conn. 206, 220, 15 A.2d 305 (1940). Rather, this was a gift which took into account Duffy’s needs given her station in life; Cromwell v. Converse, 108 Conn. 412, 426-28,143 A. 416 (1928); and did not require that her outside income be considered by the trustee in exercising its discretion. Hoops v. Stephan, 131 Conn. 138, 148, 38 A.2d 588 (1944). Rather, the standard use of the term “discretion” should prevail: “[T]he law is that the use of the word ‘discretion’ in a trust instrument, in relation to the powers of a trustee, is generally read by the courts to be coextensive with a duty to exercise discretion ‘prudently.’ ” Jackson v. Conland, 178 Conn. 52, 65, 420 A.2d 898 (1979) (Longo, J., concurring). We cannot say that this standard was not fulfilled in the present case.\nThus, we hold that the trustee had the discretion to authorize the payment of all of the trust income to Duffy, and that, in this case, that discretion was not abused.\nThere is no error.\nIn this opinion the other judges concurred.\n\n This appeal, originally filed in the Supreme Court, was transferred to this court. Public Acts, Spec. Sess., June, 1983, No. 83-29, § 2 (c).\n\n\n Article nine, part II of the will of Frederick F. Brewster, insofar as it is relevant, reads as follows:\n“Part II. Two-thirds (2/3) thereof I give, devise and bequeath to the trustee hereafter named, upon trust, for the uses and purposes hereafter stated: “(a) The trustee shall divide the properties constituting such two-thirds (2/3) part into as many equal shares as are necessary to provide one for each of my grandchildren then surviving. Each of such shares shall constitute a trust fund for and be designated with the name of one of such grandchildren. Each of the trust funds thus established shall continue until the grandchild for whom designated attains the age of thirty (30) years or dies, whichever event shall first occur, and thereupon such trust shall terminate.\n“(b) The net income of each fund, in the discretion of the trustee, may be used and expended for the support, maintenance, education and welfare of the grandchild for whom designated, or it may be accumulated and from time to time added to the principal of the fund. If the trustee in its discretion pays such net income or a part thereof to the guardian of such grandchild or to the person with whom such grandchild is residing, it shall not be required to account further for the same. If a grandchild is twenty-one years of age or later attains that age, the trustee shall thereafter and until the termination of the trust pay one-half (1/2) of the net income of his or her fund, in quarterly installments, to such grandchild.\n“(c) Upon termination of such a fund by reason of the grandchild for whom designated attaining the age of thirty (30) years, the principal thereof, including any additions thereto and any accumulated, unexpected or accrued income thereof, shall be conveyed, assigned, transferred and paid over to such grandchild, freed and discharged of all trust.\n“(d) Upon termination of such a fund by the death of the grandchild for whom designated, the principal thereof, including any additions thereto and any accumulated, unexpended or accrued income thereof, shall be con*576veyed, assigned, transferred and paid over to the person or persons appointed and in the amounts or proportions prescribed by such grandchild in exercising the power of appointment granted for the remainder of such fund in paragraph (e) hereof; or if such grandchild has not effectually or completely exercised such power, then such property as is not disposed of, shall be conveyed, assigned, transferred and paid over to the then suriviving issue of such grandchild, in equal shares, per stirpes, freed and discharged of all trusts; or, if there be no such surviving issue, then such property shall be divided into as many equal parts as are necessary to provide one part for each similar fund that then exists hereunder or that has terminated and has been distributed, and one of such parts shall then be conveyed, assigned, transferred and paid over to the trustee of each such fund then in effect to be added to the principal and follow the disposition thereof and to the person or persons to whom a fund has been distributed, or their executors or administrators, and in the same proportions as were used in such prior distribution.”\n\n\n See footnote 2, supra.\n\n\n See footnote 2, supra.\n\n\n The referee found that the request was discussed by Duffy and a trust officer of the trustee before the money was given out, but no memorandum of that discussion exists to evidence the scope of that discussion.\n\n", "ocr": true, "opinion_id": 7851303 } ]

"1985-07-16"

[ "4 Conn. App. 500" ]

[ { "author_str": "Dupont", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nDupont, C.P.J.\nThis is an appeal from a judgment of the trial court sustaining the plaintiffs’ appeal from a decision of the defendant zoning board denying a variance. Upon our grant of certification, the defendant appealed to this court. The plaintiffs sought a variance from the zoning regulations of Westport to permit them to use their residentially zoned dwelling for offices. The record discloses that in 1977 the plaintiffs purchased the subject property which included a parcel of land and a two-story frame house located on Myrtle Avenue in Westport. The property is zoned “residence A” and is adjacent to the Westport town hall which had previously been used as a junior high school.\nThe plaintiffs, desiring to use their property for a law office and an insurance office, filed applications requesting variances of certain Westport zoning regulations. A public hearing was held at which evidence was presented in support of, and in opposition to, the plaintiffs’ application. The defendant board denied the application, on the basis that the plaintiff had failed to demonstrate a sufficient hardship pursuant to General Statutes § 8-6 (3).1\n*502The trial court sustained the plaintiffs’ appeal, which was taken pursuant to General Statutes § 8-8, holding that the board’s denial of a variance to the plaintiffs was not supported by the record, and, therefore, the board acted arbitrarily, illegally and abused its discretion. On appeal, the defendant board, in effect, raises one claim of error, that the trial court erred in finding that the board’s denial of the variance was not reasonably supported by the record.\nGeneral Statutes § 8-6 (3) provides the board with authority to grant a variance, if that variance would not substantially affect the comprehensive zoning plan, and the application of the zoning ordinances to the particular parcel of land causes an unusual hardship, unnecessary to implement the general purpose of the zoning plan. Whittaker v. Zoning Board of Appeals, 179 Conn. 650, 655, 427 A.2d 1346 (1980); Grillo v. Zoning Board of Appeals, 4 Conn. App. 205, 493 A.2d 275 (1985). The board’s reasons for denying the variance are examined to determine whether they are reasonably supported by the record and are a relevant basis on which to act on the application. Chevron Oil Co. v. Zoning Board of Appeals, 170 Conn. 146, 152-53, 365 A.2d 387 (1976). If one of the reasons provided by the board is sufficient to support the denial of the variance, the board’s decision must be upheld. Torsiello v. Zoning Board of Appeals, 3 Conn. App. 47, 49, 484 A.2d 483 (1984).\n*503The reasons advanced by the board in this case were that the plaintiffs’ reference to the other variances in the area which had previously been granted, except one where the property was unique, required some residential use, that the plaintiffs purchased the property knowing that the adjoining property was to become a town hall, and that the property was not the sole residence in the neighborhood.\nThe trial court found that the board misperceived the plaintiffs’ claim of hardship. The trial court, after reviewing the transcript of the public hearing, decided that the plaintiffs advanced certain claims of hardship. These were that the subject property is uniquely situated, adjacent to town hall, isolated from the rest of the neighborhood, and thereby adversely affected by the evening activities at town hall, the neighborhood had become commercialized, and that the enforcement of the zoning regulations to this property greatly diminished its economic value. This is contrary to the plaintiffs’ allegations in their complaint. Paragraph five of the plaintiffs’ complaint alleges that the hardship claimed was the financial loss sustained by the plaintiffs as a result of the zoning ordinances. In support of that claim, they alleged the property was unsuited for single family residential use because of its close proximity to the Westport town hall, its isolation from the surrounding neighborhood because of a newly constructed multi-lane roadway and the frequent evening activities conducted at the town hall.\nA “hardship must be different in kind from that generally affecting properties in the same zoning district . . . .” Smith v. Zoning Board of Appeals, 174 Conn. 323, 327, 387 A.2d 542 (1978). The board stated that there were other single family residences in the immediate vicinity. The transcript of the hearing before the board reveals that the thrust of the plaintiffs’ argument for a use variance was that other variances were *504granted to owners in the immediate neighborhood for reasons simiiiar to those advanced by the plaintiffs. The board responded at the hearing and in its decision by pointing out that with one exception, those variances were coupled with continued residential use of the property. The board, therefore, could conclude, as it did, that the hardship claimed by the plaintiffs was not different from that affecting other properties in the neighborhood. The board’s decision was supported by the record which contained a relevant basis on which to deny the variance.\nThe presence and continued use of other properties in the vicinity as single family residences also undermines the plaintiffs’ claim of financial hardship, particularly where no evidence was adduced before the board to establish that the plaintiffs were presently losing money in their rental of the premises. The trial court, therefore, erred in holding that the record did not support the board’s action.\nThere is error, the judgment is set aside and the case is remanded with direction to render judgment dismissing the appeal.\nIn this opinion the other judges concurred.\n\n General Statutes § 8-6 provides in pertinent part: “The zoning board of appeals shall have the following powers and duties: ... (3) to determine and vary the application of the zoning bylaws, ordinances or regula*502tions in harmony with their general purpose and intent and with due consideration for conserving the public health, safety, convenience, welfare and property values solely with respect to a parcel of land where, owing to conditions especially affecting such parcel but not affecting generally the district in which it is situated, a literal enforcement of such bylaws, ordinances or regulations would result in exceptional difficulty or unusual hardship so that substantial justice will be done and the public safety and welfare secured, provided that the zoning regulations may specify the extent to which uses shall not be permitted by variance in districts in which such uses are not otherwise allowed.”\n\n", "ocr": true, "opinion_id": 7851599 } ]

"1986-02-11"

[ "6 Conn. App. 180" ]

[ { "author_str": "Spallone", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nSpallone, J.\nThe defendants, Donald H. Smith1 and Leila Smith, are appealing from a judgment of the trial court denying their application for discharge of two mechanics’ liens.2\nThe plaintiff, Pero Building Company, Inc., brought an action to foreclose a mechanic’s lien it had filed when the defendants Donald H. Smith and Leila Smith failed to remit the balance of the payments due under a contract with the plaintiff for the construction of a two family house on property which they owned. The Smiths answered and filed a counterclaim alleging that the plaintiff had performed the contract negligently, had breached the contract and had filed a mechanic’s lien in violation of an express provision of the contract.3 Gerrity Company, Inc., a supplier of building materials used in the construction of the house, filed a second mechanic’s lien against the property when the plaintiff failed to pay for the material. Gerrity was named as a party defendant in the plaintiff’s foreclosure suit because of its mechanic’s lien. Gerrity filed a cross complaint seeking a foreclosure of that lien.\n*182The Smiths moved to discharge the liens of the plaintiff and of Gerrity pursuant to General Statutes § 49-35a (a). After a hearing, the court concluded that probable cause existed for the filing of both liens and refused to discharge either one. We find error in the court’s conclusion that there was probable cause to sustain the validity of the mechanic’s lien of Pero.\n“The purpose of the mechanic’s lien is to give one who furnishes materials or services ‘the security of the building and land for the payment of his claim by making such claim a lien thereon . . . .’ ” H & S Torrington Associates v. Lutz Engineering Co., 185 Conn. 549, 553, 441 A.2d 171 (1981), quoting Purcell, Inc. v. Libbey, 111 Conn. 132, 136, 149 A. 225 (1930). The statutory provision of such a lien should be liberally construed so as to implement reasonably and fairly the statute’s remedial intent. H & S Torrington Associates v. Lutz Engineering Co., supra.\nGeneral Statutes § 49-35b (a) provides in part that “[u]pon the hearing held on [an] application or motion [for reduction or discharge of a mechanic’s lien], the lienor shall first be required to establish that there is probable cause to sustain the validity of his lien.” The probable cause standard embodied in the statute is analogous to that provided in the statutory provisions relating to prejudgment remedies. See General Statutes § 52-278a et seq. Cases which have interpreted this standard as it relates to such remedies are instructive in the present matter as no definition, either statutory or by case law, has been formulated for a probable cause standard under the mechanic’s lien statute.\n“The language of our prejudgment remedy statutes; General Statutes § 52-278a et seq.; requires that the court determine ‘whether or not there is probable cause to sustain the validity of the plaintiff’s claim’; General Statutes § 52-278d (a); that is to say ‘probable cause *183that judgment will be rendered in the matter in favor of the plaintiff.’ General Statutes § 52-278c (a) (2). ‘The legal idea of probable cause is a bona fide belief in the existence of the facts essential under the law for the action and such as would warrant a man of ordinary caution, prudence and judgment, under the circumstances, in entertaining it.’ Wall v. Toomey, 52 Conn. 35, 36 (1884). Probable cause is a flexible common sense standard. It does not demand that a belief be correct or more likely true than false. Texas v. Brown, 460 U.S. 730, 103 S. Ct. 1535, 75 L. Ed. 2d 502 (1983). The hearing in probable cause for the issuance of a prejudgment remedy is not contemplated to be a full scale trial on the merits of the plaintiff’s claim. The plaintiff does not have to establish that he will prevail, only that there is probable cause to sustain the validity of the claim. Ledgebrook Condominium Assn., Inc. v. Lusk Corporation, 172 Conn. 577, 584, 376 A.2d 60 (1977). The court’s role in such a hearing is to determine probable success by weighing probabilities. Michael Papa Associates v. Julian, 178 Conn. 446, 447, 423 A.2d 105 (1979).” Three S. Development Co. v. Santore, 193 Conn. 174, 175-76, 474 A.2d 795 (1984); Solomon v. Aberman, 196 Conn. 359, 363, 493 A.2d 193 (1985); L. Suzio Concrete Co. v. Salafia, 3 Conn. App. 404, 406-407, 488 A.2d 1280 (1985); see also Babiarz v. Hartford Special, Inc., 2 Conn. App. 388, 393, 480 A.2d 561 (1984).\nThis court’s role in reviewing a trial court’s action upon such a motion is circumscribed even further. Solomon v. Aberman, supra, 364. The trial court is vested with broad discretion in determining whether there is probable cause to grant such remedies. Id.; Price Saver, Inc. v. Maynard, 5 Conn. App. 90, 91, 496 A.2d 991 (1985). We are merely to determine whether the trial court’s decision was reasonable, and we will not upset the decision in the absence of clear error. Solomon *184v. Aberman, supra; Three S. Development Co. v. Santore, supra, 176; Price Saver Inc. v. Maynard, supra; Babiarz v. Hartford Special, Inc., supra, 393-94. Nothing in the statute requires us to treat or interpret a mechanic’s lien differently from a prejudgment remedy.\nIn the present action, the plaintiff, by clear and unambiguous language, expressly agreed with the Smiths not to file a mechanic’s lien on their property. The language used could not be more clear: “The CONTRACTOR agrees that no mechanic’s claims or liens will be filed or maintained by CONTRACTOR against the dwelling or other improvements to be constructed or against the PROPERTY.” We recognize that, ordinarily, whether the plaintiff waived his right to a mechanic’s lien is a question of fact to be determined by the trier. Pomarico v. Gary Construction, Inc., 5 Conn. App. 106, 112, 497 A.2d 70, cert. denied, 197 Conn. 816, 500 A.2d 1336 (1985); see Robert Lawrence Associates, Inc. v. Del Vecchio, 178 Conn. 1, 14, 420 A.2d 1142 (1979); Holden & Daly, Connecticut Evidence (1966 & Sup. 1983) § 125 (a). Where, however, there is clear and definitive contract language, the scope and meaning of that language is not a question of fact but a question of law. See Kakalik v. Bernardo, 184 Conn. 386, 393, 439 A.2d 1016 (1981); Bead Chain Mfg. Co. v. Saxton Products, Inc., 183 Conn. 266, 274-75, 439 A.2d 314 (1981); Finley v. Aetna Life & Casualty Co., 5 Conn. App. 394, 404, 499 A.2d 64, cert. granted, 198 Conn. 802, 501 A.2d 1213 (1985). In such a situation our scope of review is plenary, and is not limited by the clearly erroneous standard. See Lavigne v. Lavigne, 3 Conn. App. 423, 428, 488 A.2d 1290 (1985).\nWe conclude that because the language of the agreement between the parties was clear and definitive and because the intention of the parties was unmistakable, the trial court could not reasonably have construed such *185language as other than a voluntary and an absolute waiver of the plaintiff’s statutory right to file a mechanic’s lien on the Smiths’ property. The decision of the trial court in failing to grant the discharge of the plaintiff’s mechanic’s lien was, under the circumstances of this case, erroneous.\nWe find no merit to the plaintiff’s contention that due to the Smiths’ alleged breach of contract, the waiver clause of the parties’ agreement was unenforceable. The right to a mechanic’s lien is not a contractual right, rather it is a statutory right available to secure, as well as to enforce, payment for materials and labor rendered. Lampson Lumber Co. v. Rosadino, 141 Conn. 193, 196, 104 A.2d 362 (1954); Purcell, Inc. v. Libbey, supra; New Haven Orphan Asylum v. Haggerty Co., 108 Conn. 232, 239, 142 A. 847 (1928). The effect of a waiver clause is to limit the avenues available to the plaintiff to collect for such material and labor. Once the statutory right to a mechanic’s lien has been waived, there is no provision under the statute for the revival of that right upon the breach of a contract. See General Statutes § 49-33 et seq.\nThe plaintiff’s argument that there was no consideration given for the waiver provision is likewise without merit. The waiver provision was bargained for and was part of the parties’ original agreement and was therefore given in exchange for the original consideration.\nWe conclude that the court correctly applied the law in refusing to discharge the mechanic’s lien filed by the defendant Gerrity. A contractor cannot bargain away the lien rights of subcontractors or materialmen who are not themselves privy to the contractor’s agreement and who do not agree with the general contractor to waive their rights or to adopt the waiver provision as incorporated in the contract between the general con*186tractor and the property owner. See Rene Dry Wall Co. v. Strawberry Hill Associates, 182 Conn. 568, 438 A.2d 774 (1980); Seaman v. Climate Control Corporation, 181 Conn. 592, 436 A.2d 271 (1980); Lewin & Sons, Inc. v. Herman, 143 Conn. 146, 120 A.2d 423 (1956); annot., 75 A.L.R.3d 505 (1977). Indeed, the language of the agreement recognized the plaintiffs contractual obligation to secure lien waivers from its subcontractors and materialmen, and its liability to indemnify the property owners for its failure to do so. See footnote 3, supra.\nThere is error in part, the judgment is set aside as to the plaintiffs mechanic’s lien and the case is remanded with direction to grant the Smiths’ application to discharge that lien.\nIn this opinion the other judges concurred.\n\n Upon the death of Donald H. Smith, Leila Smith was substituted as a defendant in her capacity as executrix of her husband’s estate.\n\n\n General Statutes § 49-35c (a) provides that an order entered by the court denying an application to discharge a mechanic’s lien is “deemed a final judgment for the purposes of appeal.”\n\n\n Paragraph 15 of the contract provides: “The CONTRACTOR agrees that no mechanic’s claims or liens will be filed or maintained by CONTRACTOR against the dwelling and other improvements to be constructed or against the PROPERTY. Further, CONTRACTOR in contracting with any subcontractors or materialmen, will in such contracts provide that such subcontractors or materialmen shall not file or maintain any mechanic’s claims or liens for work done or materials furnished upon the PROPERTY for the purpose of work herein contracted to be performed, including orders, and CONTRACTOR further agrees to indemnify and save OWNER harmless from any costs, expenses, attorneys fees, loss or damage incurred by OWNER by the filing of liens by subcontractors or materialmen.”\n\n", "ocr": true, "opinion_id": 7851815 } ]

"1986-12-12"

[ "257 U.S. App. D.C. 6", "806 F.2d 1098" ]

[ { "author_str": "Silberman", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nOpinion for the Court filed by\nCircuit Judge SILBERMAN.\nSILBERMAN, Circuit Judge:\nWe have before us the attorneys fees phase of a lengthy lawsuit brought by Battles Farm Co., the owner of a low-income housing project, against the Secretary of Housing and Urban Development. After winning on the merits in part of their suit, the plaintiffs applied for, and the district court awarded, attorneys fees under the Equal Access to Justice Act (“EAJA”).1 Because we find the Secretary’s position on the merits of the lawsuit to have been substantially justified, we reverse the district court’s fee award.\nI.\nThis litigation began on March 8, 1976, when Battles Farm sued HUD Secretary Carla Hills for refusing to pay low-income housing project operating subsidies under the 1974 amendments to the National Housing Act.2 These amendments “authorized” the Secretary to make “operating subsidy” payments to project owners to help defray their increased expenses, thus minimizing the rents they charged tenants. See 12 U.S.C. § 1715z-1(f)(3) (1976). The amendments contemplated two means by which the Secretary would make such payments. First, the Secretary was authorized to make subsidy payments from a “rental reserve fund” — a fund consisting of excess rental charges remitted by project owners to the Secretary. See id. at 1715z-1(g). Second, the Secretary was authorized to enter into long-term contracts commit*8ting HUD to pay these subsidies for an extended period of time. See id. at § 1715z-l(f)(3). Secretary Hills, believing that she had discretion not to implement the operating subsidy program and believing that HUD resources were better spent on other housing programs, declined to make subsidy payments from either source. This decision generated numerous lawsuits by housing project owners and tenants, all seeking to compel the Secretary to make such payments.\nBattles Farm’s lawsuit contained two interrelated claims: that the Secretary was obligated to use the rental reserve fund to make subsidy payments, therefore entitling Battles Farm to retroactive subsidy payments from the fund; and, under the same statutory provision, the Secretary was also obligated to enter into a long-term contract with Battles Farm guaranteeing to continue these subsidy payments for the forty-year life of the project. When this lawsuit began, nine different district courts had already held the Secretary was obligated to make subsidy payments from the rental reserve fund. But no court had yet ruled on the long-term contract issue — no other plaintiffs had brought such a claim. The Secretary defended the lawsuit, arguing that she was neither required to make subsidy payments from the rental reserve fund, nor required to enter into long-term contracts. The district judge ruled for the plaintiffs on the rental reserve fund claim and for the defendant on the long-term contract claim. Battles Farm Co. v. Hills, 414 F.Supp. 521 (D.D.C.1976). In calculating the amount of subsidies owed to Battles Farm, the judge limited the award by basing it on the rents Battles Farm actually charged during the pendency of the lawsuit, rather than the rents it would have charged had HUD implemented the subsidy program. Both sides appealed their respective losses, and the Secretary agreed to begin making subsidy payments to Battles Farm during the pendency of the appeal.\nThe litigation then entered a dormant phase lasting almost six years. During this period, a number of contradictory events occurred: the Fourth and Ninth Circuits ruled against HUD on the rental reserve fund issue;3 the Supreme Court granted certiorari to review both of those decisions;4 this court ordered the Battles Farm appeal held in abeyance pending the Supreme Court’s review of the Fourth and Ninth Circuit cases; a successor HUD Secretary settled eleven rental reserve fund lawsuits in 1978, agreeing to pay some $60 million in subsidies; and, also in 1978, Congress terminated the operating subsidy program.\nThe Battles Farm litigation came back to life in February, 1982, when this court reactivated the appeal.5 In the second phase of the litigation, HUD Secretary Samuel Pierce dropped HUD’s earlier argument that the Secretary had discretion not to make subsidy payments. Instead, he merely defended Battles Farm’s appeal of the district court’s ruling limiting the amount of retroactive subsidies owed by HUD. He also defended against Battles Farm’s argument that the Secretary was required to enter into a long-term subsidy contract. This court issued its decision in April, 1983, agreeing with Battles Farm on the calculation of retroactive subsidies due, but affirming the district court’s rejection of Battles Farm’s long-term contract claims. Battles Farm Co. v. Harris, 703 F.2d 1292 (D.C.Cir.1983). Thus, when the dust had settled on the merits phase of the lawsuit, Battles Farm had prevailed on its claim for rental reserve fund subsidies and HUD had prevailed on its refusal to enter into a long-term contract.\n*9Battles Farm then applied for attorneys fees under the EAJA.6 The Secretary opposed the application on the grounds that its position in the underlying litigation had been “substantially justified.” In an unpublished opinion, the district court determined that the Secretary’s position had not been substantially justified and so awarded $152,063.60 in attorneys fees, paralegal expenses, and costs. The Secretary now appeals, arguing that the district court erred both as to its “substantially justified” determination and as to its rulings on other aspects of the fee award.7 Battles Farm cross-appeals from the district court’s decision to limit plaintiffs’ reimbursement for paralegal costs.\nII.\nThe Equal Access to Justice Act is a fee-shifting statute that allows certain private parties to recover attorneys fees and other costs incurred as a result of litigation against the federal government. But unlike other fee-shifting statutes that are designed solely to encourage private “attorneys general” to bring meritorious litigation in the public interest8 and therefore ignore the reasonableness of the government’s litigating position, the EAJA’s purpose is somewhat different. It is designed to encourage small private plaintiffs and defendants to persevere against or resist the U.S. government if the government takes an unjustified litigating position.9 And, perhaps more importantly, the statute is meant to discourage the federal government from using its superior litigating resources unreasonably — it is in this respect an “anti-bully” law. Thus, under the EAJA it is not enough that the private party “prevail” against the government in order to obtain attorneys fees. The government has the opportunity to show that its litigating position was “substantially justified;” 10 if it meets that burden, the court cannot award attorneys fees. Spencer v. NLRB, 712 F.2d 539, 557 (D.C.Cir. 1983), cert. denied, 466 U.S. 936, 104 S.Ct. 1908, 80 L.Ed.2d 457 (1984).11 Whether the *10government’s position was substantially justified depends to an important degree on the clarity of the governing law at the time the government made its litigating decision — if the extant law is clearly against the government, its position is not considered substantially justified. Id. at 559.\nThe government contends that its litigating position on the rental reserve fund issue was substantially justified because the governing law was unsettled at the time the original lawsuit was filed and remained so throughout the litigation. To offset the nine adverse district court decisions, the government relies. on a favorable (if not directly on point) prior decision of this Circuit,12 as well as subsequent developments, particularly the Supreme Court stay13 and grant of certiorari in similar cases.14 The government also argues that the work Battles Farm’s lawyers devoted to the long-term contract claim, on which the government prevailed, is separable from fees sustained on the rental reserve fund claim. Battles Farm, on the other hand, argues that we should focus primarily on the governing law with respect to the rental reserve fund issue at the time the lawsuit was initially filed — when nine district courts had directly held against the government on that question. Battles Farm maintains that we should give no weight to the Supreme Court’s grants of stay and certiorari; if we look to subsequent events at all we should be influenced by the government’s settlement of the rental reserve fund issue in 1978. Finally, the appellee contends that the district court was correct in treating work done on both claims as interrelated.\nWe find it unnecessary to determine whether the government was separately justified in its litigating position on the rental reserve fund issue because we agree with both the district court and Battles Farm that the two claims were interrelated. But this very interrelationship, which Battles Farm so vigorously asserts, paradoxically defeats its claim. The district court analyzed the case as if it were based on the “private attorneys general” fee-shifting statutes mentioned above. Under those statutes, courts merely divide claims into prevailing and losing issues and determine whether work on the latter can fairly be attributed to the former. Accordingly, the district court held that Battles Farm had prevailed on what it decided was the “central issue” in the case — the rental reserve fund issue. It then applied the prevailing party analysis of Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983) to conclude that the rental reserve fund issue was related to the long-term contract issue. But the court failed to consider whether the interrelated nature of the two claims bore on the Secretary’s justification to defend the entire lawsuit. Instead, the court merely concluded that because the Secretary later settled the rental reserve fund issue, the government had made “an admission of insubstantiality” with regard to its position on the entire case.\nUnder the EAJA, the focus of a court’s analysis must be on the justification of the government’s overall litigating position at the time the government takes its position. When a case presents only a single issue, the court merely examines the extant governing law to see if the government’s position has support. See, e.g., Massachusetts Fair Share v. Law Enforcement Assistance Administration, 776 F.2d 1066 (D.C. Cir.1985); Grace v. Burger, 763 F.2d 457 (D.C.Cir.), cert. denied, — U.S.-, 106 S.Ct. 583, 88 L.Ed.2d 565 (1985); Hirschey v. FERC, 760 F.2d 305 (D.C.Cir.1985); Spencer v. NLRB, 712 F.2d 539. But, where as here, a plaintiff sues the govem*11ment on two claims arising out of the same facts and involving an interpretation of common statutory sections, we think it artificial to consider only the strength of the government’s argument on each issue. That is simply not the way litigation works. A lawyer faced with two interrelated claims against his client may well jeopardize one if he concedes the other. Therefore, a court’s substantial justification inquiry must also take into account the effects of each claim upon the success or failure of the other.\nIn . the initial phase of this lawsuit, Battles Farm made two claims against the government: the first for retroactive subsidy payments from the rental reserve fund and the second for a forty-year long-term contract. Although both the rental reserve claim and the long-term contract claim are premised on the asserted mandatory nature of the subsidy program, the long-term contract claim was far more costly and would have committed the department to carry out the operating subsidy program for four decades, an awesome precedent. There can be no doubt that the extant law on the long-term contract claim supported the Secretary’s position. No court had, at the time the lawsuit began, ever held against the Secretary on the long-term contract issue. Moreover, the Secretary prevailed on the long-term contract claim both in the 1976 district court decision and in the 1983 circuit court decision (where, incidentally, we observed that' “Battles Farm’s argument on this issue is weak.” Battles Farm Co. v. Harris, 703 F.2d at 1296). It is, therefore, hardly open to Battles Farm to assert the government was unjustified to defend against that claim. But the Secretary would have been disadvantaged in contesting the long-term contract claim without also defending the rental reserve fund claim — Battles Farm presented the claims as intertwined. Both the rental reserve fund claim and the long-term contract claim turned in large part on the interpretation of the same statutory language: “the Secretary is authorized to make, and contract to make, additional assistance payments.” 12 U.S.C. § 1715z-1(f)(3). Battles Farm argued that “if the subsidy program was mandatory, so too was the Secretary’s obligation to contract for such subsidies.” Battles Farm Co. v. Harris, 703 F.2d at 1296. Battles Farm therefore defined the lawsuit; the Secretary might well have jeopardized her position on the long-term contract claim had she conceded the rental reserve fund claim. Indeed, a private lawyer who did so might be held liable for malpractice. For that reason alone, the Secretary’s decision to defend the first phase of the lawsuit in 1976 was, at a minimum, substantially justified.\nThe 1978 nationwide settlement of the rental reserve fund issue does not affect our analysis because the settlement did not acknowledge the legitimacy of the long-term contract claim — indeed, no other plaintiff had even asserted such a claim. At that point, moreover, the government had won the long-term contract issue in the district court as against Battles Farm, and therefore was a good deal less vulnerable to that claim. In any event, we disagree with the district court’s conclusion that a subsequent settlement per se undermines the justification of a government litigating position. The district court relied only on dicta in a Spencer footnote, 712 F.2d at 555 n. 58, for that proposition. And as the Second Circuit recently held in a similar case, such an approach might discourage the government’s willingness to settle lawsuits. Dubose v. Pierce, 761 F.2d 913, 920 (2d Cir.1985).\nOur conclusion does not suggest that whenever the government prevails on one claim in a lawsuit a private party cannot recover fees. If, for example, the government is the plaintiff and links a far-reaching and unreasonable claim to a justified one, the private party may well — as was the government here — be obliged to litigate the whole. If the claims are interrelated, the private party, under those circumstances, might well recover all its fees not withstanding a loss on one claim. Also, if the government as defendant raises two defenses that “stand on a different footing we will analyze each separately.” Cinciar*12elli v. Reagan, 729 F.2d 801, 805 (D.C.Cir. 1984). We hold only that if a private plaintiff, in its complaint, combines one adventurous far-reaching losing claim with a more orthodox winning claim, and the two are intertwined, we must consider the justification of the government's entire litigating position before awarding attorneys fees. Just as the government must subsidize litigation costs when it “take[s] a long shot,” Spencer v. NLRB, 712 F.2d at 558, so too must private parties bear the risks when it is they who aim for the fences.\nWe next consider the reasonableness of the government’s litigating position in the second phase of the lawsuit. We might normally confine ourselves to examining the government’s position solely at the beginning of a lawsuit. Otherwise, we could be compelled to evaluate the strength of the government’s position in light of various judicial opinions issued during the pendency of the lawsuit, which could present the reviewing court with a analytical nightmare. Theoretically, the government’s position might be initially justified, then unjustified because of other adverse opinions, then justified again because of favorable opinions, and on and on.15 Nevertheless, here we must perform a second inquiry into the reasonableness of the government’s position because the litigants themselves fundamentally restructured the lawsuit in 1982. By dropping its appeal of the rental reserve fund issue after the 1978 settlement, the government transformed this litigation from an interrelated two-issue case to a case containing two divisible questions: (1) whether calculation of the retroactive subsidies concededly due should be based on the actual rents Battles Farm charged its tenants or on the rents Battles Farm would have charged had the Secretary made payments in 1975 and 1976; and (2) the long-term contract issue. The transformation of the lawsuit compels us to re-examine the reasonableness of the government’s litigating position in 1982, and to examine that position by reference to each of the two separate issues in the lawsuit, see Martin v. Lauer, 740 F.2d at 44.\nWe think it plain, however, that the Secretary was substantially justified in litigating both issues on appeal. We agreed with the government’s argument on the long-term contract issue; its position on that issue can therefore hardly be deemed unjustified. While the government's 1976 district court victory on the subsidy calculation issue does not render its position on appeal per se justified, it is certainly evidence that the government’s position here was reasonable, see Cinciarelli v. Reagan, 729 F.2d at 806. This was not a legal question upon which prevailing law clearly dictated a reversal of the district court; we merely weighed the competing arguments and decided that Battles Farm’s method of calculating retroactive subsidies was more equitable. See Battles Farm Co. v. Harris, 703 F.2d at 1294-96. Having thus concluded that the government’s litigating position in each phase of this litigation was substantially justified, we hold that Battles Farm is not entitled to attorneys fees under the EAJA.16 The district court’s award of such fees is therefore\n\nReversed.\n\n\n. Pub.L. No. 96-481, §§ 201-208, 94 Stat. 2321, 2325-30 (1980). The portions of the Act pertaining to awards of fees by courts are codified at 28 U.S.C. § 2412 (Supp. V 1981). Battles Farm’s fee claim was brought under the 1981 version of the EAJA.\n\n\n. Housing and Community Development Act of 1974, Pub.L. No. 93-383, 88 Stat. 633 (1974). In 1978, Congress repealed the operating subsidy program. Housing and Community Development Amendments of 1978, Pub.L. No. 95-557, 92 Stat. 2080.\n\n\n. Ross v. Community Services, Inc., 544 F.2d 514 (4th Cir.1976): Abrams v. Hills, 547 F.2d 1062 (9th Cir.1976).\n\n\n. 431 U.S. 928, 97 S.Ct. 2630, 53 L.Ed.2d 243 (1977).\n\n\n. The Supreme Court never heard the Abrams and Ross cases because of the 1978 settlement. This obviously defeated the purpose of our holding the Battles Farm appeal in abeyance: to await the Supreme Court's guidance on the issues presented in that appeal. We have no explanation for why the case remained in limbo for three years after the settlement.\n\n\n. The district court had rejected Battles Farm’s request for attorneys fees in 1976 because there was no statutory authorization for such an award. On April 21, 1983, Battles Farm asked this court to remand the attorneys fees issue to the district court in view of the 1981 enactment of the Equal Access to Justice Act. (A party to a lawsuit pending as of October 1, 1981, the effective date of the Act, is eligible for attorneys fees, see Cornella v. Schweiker, 728 F.2d 978, 988 & n. 16 (8th Cir.1984)). In response, we vacated the district court's 1976 ruling and remanded the attorneys fees issue to the district court.\n\n\n. Because we hold the Secretary’s litigating position was substantially justified, we do not address the other arguments raised on appeal.\n\n\n. See, e.g., Civil Rights Attorney’s Fees Awards Act of 1976, codified at 42 U.S.C. § 1988 (1982) (awarding attorneys fees to prevailing party in civil rights suits against the government); Civil Rights Act, attorneys fees provision codified at 42 U.S.C. 2000a-3(b) (1982) (awarding attorneys fees to prevailing party in lawsuits alleging discrimination in public accommodations).\n\n\n. See Pub.L. No. 96-481, § 202, 94 Stat. 2321, 2325 (1980). The Act may have assumed an additional purpose as a result of a recent amendment, see note 15, infra, that requires the government to also justify its administrative position.\n\n\n. The full text of the 1981 version of the pertinent statute reads:\nExcept as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses, in addition to any costs awarded pursuant to subsection (a), incurred by that party in any civil action (other than cases sounding in tort) brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.\n28 U.S.C. § 2412(d)(1)(A) (Supp. V 1981) (emphasis added).\n\n\n. The House and Senate Reports accompanying the Act seek to define \"substantially justified.\" “The test of whether or not a Government action is substantially justified is essentially one of reasonableness. Where the Government can show that its case had a reasonable basis both in law and fact, no award will be made.” H.R.Rep. No. 1418, 96th Cong., 2d Sess. 10 (1980) U.S.Code Cong. & Admin.News 1980, pp. 4953, 4989; S.Rep. No. 253, 96th Cong., 1st Sess. 6 (1979). In Spencer, we interpreted \"substantially justified” as requiring the government’s position to be \"slightly more” than reasonable. 712 F.2d at 558. Yet the operative portion of that opinion makes no distinction between “reasonable” and \"slightly more than *10reasonable.\" Indeed, the opinion holds that the government's position was substantially justified because it fell \"within the bounds of 'reasonableness.' \" Id. at 567.\n\n\n.Commonwealth of Pennsylvania v. Lynn, 501 F.2d 848 (D.C.Cir.1974).\n\n\n. On October 18, 1976, the Supreme Court granted stay of mandate in Underwood v. Hills, 414 F.Supp. 526 (D.D.C.1976), 429 U.S. 892, 97 S.Ct. 250, 50 L.Ed.2d 175 (1976).\n\n\n. 431 U.S. 928, 97 S.Ct. 2630, 53 L.Ed.2d 243 (1977).\n\n\n. Of course, a reexamination of the government’s litigating position may be necessary when subsequent events change the character of the lawsuit. See Martin v. Lauer, 740 F.2d 36, 44 & n. 14 (D.C.Cir.1984).\n\n\n. The EAJA was amended in 1985 to provide that the \"position\" of the United States includes not only its litigating position but also \"the action or failure to act by the agency upon which the civil action is based.” Pub.L. No. 99-80, § 2(c)(2)(B), 99 Stat. 183, 185 (1985). We recently held in Center for Science in the Public Interest v. Regan, et al., 802 F.2d 518 (D.C.Cir. 1986) that the amended version of the Act applies to all lawsuits pending as of August 5, 1985. This lawsuit was pending on that date.\nHowever, both parties explicitly stated in their briefs that the 1985 revision of the EAJA has no bearing on the issues in this case. Battles Farm has never argued that fees are award-able because the Secretary’s administrative action was unjustified — its argument is simply that the Secretary’s litigating position was unjustified. Likewise, the district court held only that the government’s litigating position was unjustified. Thus, our denial of a fee award rests *13solely on our conclusion that the government’s litigating position was in fact justified.\nEven if the argument had been made that the Secretary’s refusal to pay operating subsidies was unjustified, it would likely not have persuaded us. When the Secretary made the administrative decision, only the Lynn case guided her action — and that case arguably supported her position. No courts, at that time, had yet ruled against the Secretary on this issue.\n\n", "ocr": true, "opinion_id": 7851855 } ]

"1986-04-01"

[ "6 Conn. App. 656" ]

[ { "author_str": "Bieluch", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nBieluch, J.\nThe defendants have appealed from a judgment of the trial court in favor of the plaintiff in its action for breach of contract.1 Because we conclude *657that the appeal is not from a final judgment, we dismiss it.\nAfter a trial to the court, judgment was originally rendered in favor of the defendants on June 24,1982, because the contract was found to be usurious and thus unenforceable. On August 22,1983, the court granted the plaintiffs motion to open that judgment on the ground that the plaintiffs trial counsel2 and the court had mistaken the effective date of repeal of the key statute and the effect of the new statute. The court, therefore, rendered a first supplemental judgment in favor of the plaintiff. The court did not, however, award damages to the plaintiff in its judgment. The defendants moved, on September 19,1983, to open the latter judgment, but that motion was withdrawn and an appeal from that judgment was filed on September 29,1983.\nOn November 17,1983, the plaintiff again moved to open the judgment of the court, this time for the purpose of finding the amount of damages. That motion was granted, and on August 30, 1984, the court rendered a second supplemental judgment awarding the plaintiff $440,579.3 On September 19,1984, the defendant filed an “Amended Appeal” from the judgment of August 30, 1984, awarding these damages to the plaintiff.\nThe original appeal of the defendant filed on September 29,1983, failed to contain the required jurisdictional statement, but it is clear from the preliminary statement of issues that the appeal was taken from the first supplemental judgment finding the defendants liable on the contract without assessing damages. “[Wjhere a judgment has been rendered only upon the issue of *658liability without an award of damages . . . [it is] interlocutory in character, [and] is not a final judgment from which an appeal lies.” Stroiney v. Crescent Lake Tax District, 197 Conn. 82, 84, 495 A.2d 1063 (1985). Nor does such a judgment “fall within one of the narrowly defined exceptions to the general prohibition against appeals from judgments that are not final.” Id., 85. The filing of the subsequent “Amended Appeal” on September 19, 1984, does not cure the defective appeal because a jurisdictional defect renders an appeal void ab initio and uncorrectable. Id., 86 n.3. The power to permit an amendment to an appeal presupposes jurisdiction of the original appeal. Id. Since jurisdiction is lacking in this case, the amended appeal is legally ineffective to grant the required jurisdiction necessary for a proper appeal.\nThe appeal is dismissed.\nIn this opinion the other judges concurred.\n\n This action was consolidated with the defendants’ action to enjoin the plaintiff from pursuing its breach of contract claim.\n\n\n The motion to open was filed on behalf of the plaintiff by new counsel.\n\n\n This second supplemental judgment also reflected the court’s decision to grant a third motion to open the judgment, filed on March 12,1984, for the sole purpose of correcting a clerical error in the first supplemental judgment.\n\n", "ocr": true, "opinion_id": 7851895 } ]

"1986-07-08"

[ "8 Conn. App. 107" ]

[ { "author_str": "Borden", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nBorden, J.\nThe plaintiff, Lisa Ann Perez, appeals from the trial court’s judgment denying her motion to modify the custody decree of the Superior Court of Puerto Rico. The principal issue in this appeal is whether the trial court erred by failing to grant the plaintiff’s oral motion that the court “request of the court of [Puerto Rico] a certified copy of the transcript of any court record and other documents mentioned in [General Statutes] section 46b-lll.” General Statutes § 46b-112. We find error.\nThe facts are not in dispute. The plaintiff and the defendant, Orlando Perez, Jr., were married on Janu*108ary 29, 1983. Their only child, Orlando Perez III, was born on June 25,1983. Early in 1984, the parties separated and the plaintiff initiated dissolution proceedings in the Superior Court for the judicial district of Tolland. The child remained with the paternal grandparents in Portland. Shortly thereafter, the defendant fled with the child to Puerto Rico. The defendant initiated custody proceedings in Puerto Rico and the plaintiff proceeded with the dissolution action in Connecticut. On September 4, 1984, the trial court in Connecticut rendered judgment dissolving the marriage and, by agreement of the parties, deferred to the trial court in Puerto Rico for resolution of the custody issue. On November 1, 1984, the trial court in Puerto Rico awarded custody of the child to the paternal grandparents in Portland. The parties were awarded reasonable rights of visitation, subject, however, to the direct physical supervision of the paternal grandparents.1 The defendant then returned with the child to Connecticut.\nOn March 25,1985, the plaintiff filed in the Superior Court for the judicial district of Tolland a petition for enforcement of the Puerto Rican custody decree, in which she requested recognition and enforcement of her visitation rights under that decree. She also filed a petition for modification of the custody decree and a motion for reference to the family relations division for a custody study. Attached to the modification motion were an affidavit and exemplified copies of the custody application and decree in the Spanish language, together with an English translation. The trial court issued an order to show cause directed to the defendant and summoned “the defendants, Orlando Perez, Sr. and Loraine Perez [the paternal grandparents], and Orlando Perez, Jr.” to appear at a hearing. The defendant, Orlando Perez, Jr., filed, inter alia, a motion to *109dismiss the plaintiffs motions on the ground that the trial court lacked jurisdiction over the child and the paternal grandparents.2\nOn May 6, 1985, the trial court held a hearing and denied the defendant’s motion to dismiss. Having accepted jurisdiction, the court proceeded to address the merits of the plaintiff’s motions. The basis of the plaintiff’s claim for modification of the foreign custody decree was that it was not based on the best interests of the child. See Hally. Hall, 186 Conn. 118, 122, 439 A.2d 447 (1982). During the hearing, the plaintiff made an oral motion that the court request the transcripts and other relevant documentation from the trial court in Puerto Rico pursuant to General Statutes § 46b-112 before rendering judgment on her motion to modify its custody decree. The trial court denied this motion and rendered judgment denying the plaintiff’s motion to modify custody.3 The plaintiff then filed a motion to set aside or open the judgment, which the court denied. This appeal followed.\nGeneral Statutes § 46b-112 provides: “If a custody decree has been rendered in another state concerning a child involved in a custody proceeding pending in a court of this state, the court of this state upon taking jurisdiction of the case shall request of the court of the other state a certified copy of the transcript of any court record and other documents mentioned in section *11046b-111.”4 (Emphasis added.) Similarly, General Statutes § 46b-104 (b) provides that “[i]f a court of this state is [otherwise] authorized ... to modify a custody decree of another state it shall give due consideration to the transcript of the record ar¡'d other documents of all previous proceedings submitted to it in accordance with section A6b-112.” (Emphasis added.) In the present case, the trial court accepted jurisdiction of the plaintiffs motion to modify custody and the propriety of the court’s power to modify the Puerto Rican custody decree is not in issue. Thus, the provisions of General Statutes §§ 46b-112 and 46b-104 clearly govern this matter.\nThe plaintiff claims that the provisions of these governing statutes are mandatory and that the trial court erred by failing to request the transcripts, record and other documents from the trial court in Puerto Rico. We agree. Ordinarily “the use of the word ‘shall’ connotes that the obligation is mandatory, as opposed to permissive.” Sullivan v. Liberty Mutual Fire Ins. Co., 174 Conn. 229, 233, 384 A.2d 384 (1978). “The test for determining whether such a statutory requirement is mandatory or directory is whether the prescribed mode of action is of the essence of the thing to be accomplished.” Vartuli v. Sotire, 192 Conn. 353, 360, 472 A.2d 336 (1984). There is no ambiguity in the statutory direction to trial courts, when ruling on a motion to modify a foreign custody decree, to “request of the court of the other state5 a certified copy of the tran*111script of any court record and other documents mentioned in section 46b-111”; (footnote added) General Statutes § 46b-112; and to “give due consideration to [those items].” General Statutes § 46b-104 (b). This consideration goes directly to the custody determination which the trial court was called upon to make in this case.\nThe policy underlying these mandatory requirements accords with the notion that “[i]n the exercise of its awesome responsibility to find the most salutary custodial arrangement for the children of divorce;” Yontef v. Yontef 185 Conn. 275, 283, 440 A.2d 899 (1981); the trial court must “make difficult and sensitive inquiries into the relationships between adults and children.” Cappetta v. Cappetta, 196 Conn. 10, 16, 490 A.2d 996 (1985). In order for a court of this state to give due consideration to a requested modification of a foreign court’s custody decree on the basis of the claim that the prior decree was not based on the child’s best interests; see Hall v. Hall, supra; it must have before it all of the items required by General Statutes §§ 46b-104 (b) and 46b-112. The trial court erred by failing to follow these legislative directives.\nThere is error, the judgment is set aside and the case is remanded for further proceedings in accordance with law.\nIn this opinion the other judges concurred.\n\n The plaintiff appealed unsuccessfully to the Supreme Court of Puerto Rico.\n\n\n Although the paternal grandparents did not file an appearance at trial, they were named in the summons, and the trial court rejected the defendant’s claim that the court lacked jurisdiction over them. They have since filed an appearance in this court and have fully participated in this appeal. Therefore, we are not confronted with the issue of whether the plaintiff had “[n]otice of the identity of those who are contenders for the custody of [her] child . . . . ” Cappetta v. Cappetta, 196 Conn. 10, 16, 490 A.2d 996 (1985). We assume that on the remand an appearance will be entered on their behalf in the trial court.\n\n\n The court did set specific times for the plaintiffs visitation with her child.\n\n\n General Statutes § 46b-l.ll provides: “In any custody proceeding in this state the court shall preserve the pleadings, orders and decrees, any record that has been made of its hearings, social studies and other pertinent documents until the child reaches eighteen years of age. Upon appropriate request of the court of another state, the court shall forward to the other court certified copies of any or all of such documents.”\n\n\n According to General Statutes § 46b-92 (10), Puerto Rico is included within the definition of the term “state” for purposes of these statutory provisions.\n\n", "ocr": true, "opinion_id": 7852048 } ]

"1987-06-23"

[ "11 Conn. App. 348" ]

[ { "author_str": "Bieluch", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nBieluch, J.\nThe defendants,1 Mildred E. Mulligan and Charter Oak Construction Company, Inc. (Char*350ter Oak), have appealed from the trial court’s judgment rendered for the plaintiff in accordance with the jury’s verdict. The defendants claim that the trial court erred (1) in refusing to grant their requests to charge, (2) in its instructions to the jury on the issue of negligence, (3) in allowing the introduction of evidence that the defendant Charter Oak possessed liability insurance, and (4) in failing to grant the defendants’ motions for a directed verdict and judgment notwithstanding the verdict. We find no error.\nThe jury could reasonably have found the following relevant facts: On September 1,1983, Charter Oak and Hull-Hazard, Inc. (Hull-Hazard), were engaged in construction activities at the Farmington Avenue bridge spanning Trout Brook in West Hartford. Charter Oak was preparing site excavation for utility conduits on behalf of Northeast Utilities (Northeast). Hull-Hazard was the general contractor on a flood control project with responsibility for repairing the southerly portion of the bridge, which had sustained structural damage as a result of a flood in April of 1983.\nAs part of its repair of the bridge, Hull-Hazard removed a large steel beam supporting the southerly overhang of the bridge. This portion of the bridge included a pedestrian walkway and a small triangular parking area at the west end of the bridge. The southerly portion of the bridge, being no longer structurally sound, was closed to vehicular traffic.\nThe plaintiff, eighty-five years of age and a spectator at the construction site, was standing on or near the southerly sidewalk of the bridge. As a loaded cement truck owned by Charter Oak and operated by George C. Mulligan backed onto the bridge and its southerly overhang, that portion collapsed and catapulted the truck and the plaintiff into the stream below. The plaintiff suffered serious physical injuries *351as a consequence. The plaintiff brought this action for damages caused by Mulligan’s negligent operation of the cement truck, and the jury returned a general verdict for the plaintiff.\nI\nThe Defendants’ Requests to Charge\nThe defendants’ first claim is that the court erred in refusing to charge in accordance with their request on the issue of the duty of care owed by an occupier of land to a trespasser. The defendants’ request to charge sets forth eleven points of law on the issue of negligence as applied to trespassers. The soundness of the legal principles recited in the request was not challenged. The court, however, rejected the request to charge as irrelevant to the allegations set forth in the complaint and responsive pleadings.\nIt is fundamental that the trial court need charge only on those points of law which arise pursuant to the claims of proof advanced by the parties in their pleadings. See Tierney v. American Urban Corporation, 170 Conn. 243, 250, 365 A.2d 1153 (1976); Novella v. Hartford Accident & Indemnity Co., 163 Conn. 552, 573, 316 A.2d 394 (1972); Franks v. Lockwood, 146 Conn. 273, 279, 150 A.2d 215 (1959). Our review of the pleadings indicates that the plaintiff’s revised complaint alleged negligence by the defendants in the course of Mulligan’s operation of Charter Oak’s truck, and not negligence arising from the ownership or occupancy of land. The plaintiff’s revised complaint does not allege that the defendants occupied the premises in such a manner as to make them responsible for its condition. Likewise, the defendants do not allege that the plaintiff prosecuted this action on that legal theory. The plaintiff’s allegations of negligence were based upon Charter Oak’s parking of a 7500 pound truck carrying an air compressor on the triangular parking area located *352at the southwesterly end of the bridge and the operation of a loaded cement truck on the westerly end of the unsupported overhanging bridge and adjacent sidewalk, causing the bridge and sidewalk to collapse. The plaintiff alleged that these activities constituted negligence in that the defendants knew or in the exercise of reasonable care should have known that their conduct would result in the collapse of the sidewalk. Our review of the record discloses that no special defenses were interposed by the defendants in this case. The defendants’ answer consisted merely of a general denial of the plaintiff’s allegations of negligence. Since the legal theory contained in the defendants’ request to charge was irrelevant to the legal theories presented by the pleadings, the trial court properly refused to charge on those issues.\nThe defendants also allege that the court erred in failing to charge in accordance with the defendants’ request on the effect of warnings issued to the plaintiff by the workers at the construction site. The substantive law contained in the defendants’ request to charge concerned the duty of a landowner to warn trespassers of dangerous conditions known to exist on his land. See 2 Restatement (Second), Torts § 336, comment (d). Since such an issue was not material to the plaintiffs theory of negligence, the trial court correctly refused to charge in accordance with the defendants’ request.\nThe defendants also allege that the court erred in failing to provide the jury with any instruction as to the legal consequences of the warnings given to the plaintiff. It is argued that the legal effect of these warnings was placed in issue by the defendants’ general denial contained in their answer. The defendants claim that a reasonable warning may have been all that was required of the defendants to discharge their duty of *353reasonable care. We find that the warnings given were legally insufficient to discharge their duty of care in this case.\nThe plaintiffs principal claim of negligence was based upon the defendants’ conduct in backing a loaded cement truck onto the unsupported bridge overhang and adjacent sidewalk area. For the defendants to have discharged their duty of care under such circumstances, they would have had to warn the plaintiff of the condition of the unsupported bridge overhang and adjacent sidewalk and the resulting danger which would be presented by backing the cement truck onto the unsupported structure. The defendants do not claim, nor does our review of the testimony disclose, that any such warning was given. The testimony of the witnesses demonstrates that the plaintiff was warned about standing too close to the workmen using jackhammers and cautioned about getting in the way of the backhoe. Since the testimony of the warnings was legally insufficient to prove that the defendants had discharged their duty of care under the facts of this case, the trial court’s failure to charge on that issue could not be error.\nThe defendants further allege that the trial court erred in denying the defendants’ request to charge and in refusing to charge that the plaintiff’s refusal to heed the warnings given by the men at the construction site may have been the proximate cause of the plaintiffs injuries. The defendants’ claim is one of contributory negligence, which must be specially pleaded. See General Statutes § 52-114; Practice Book § 167. For the reasons stated above, since no such special defense was asserted in the defendants’ answer, they were not entitled to such an instruction. See, e.g., Faulkner v. Reid, 176 Conn. 280, 281, 407 A.2d 958 (1978).\n*354II\nThe Charge to the Jury\nThe defendants’ second claim asserts that the court erred in instructing the jurors that they may take into account, while deciding the issue of negligence, “the various testimony as to whether or not the foreman gave safety instructions to his men.” The defendants characterize this instruction as beyond the allegations of the plaintiff’s complaint. See Matthews v. F.M.C. Corporation, 190 Conn. 700, 705, 462 A.2d 376 (1983).\n“The test of a proper jury charge is whether ‘ “it fairly presents the case to the jury, in such a way that injustice was not done under the rules of law to the legal rights of either litigant . . . .”’A properjury charge must be correct in law, adapted to the issues and ample for the guidance of the jury. . . . Jury instructions should be confined to matters in issue by virtue of the pleadings and evidence in the case. . . . It is error to submit a specification of negligence to the jury in respect to which no evidence has been offered.” (Citations omitted.) Mack v. Perzanowski, 172 Conn. 310, 313, 374 A.2d 236 (1977).\nOne of the plaintiff’s allegations of the defendants’ negligence was that in the exercise of reasonable care they should have known of the danger of conducting their construction operations and that they failed to take any actions to avoid the resulting sidewalk collapse. We find that this allegation is sufficient to warrant the introduction of evidence as to whether the foreman gave safety instructions to his men and to warrant the court’s reference to this evidence in its charge to the jury.\nThe defendants also allege that the court erred in charging the jury on issues raised by the pleadings, but *355not supported by the evidence. Specifically, the defendants claim that the court erred in instructing the jurors that they could consider paragraph 7 (d) and 7 (f) of the plaintiffs revised complaint. Paragraph 7 (d) alleged that the defendants were negligent in weakening the sidewalk portion of the overhanging bridge by attempting to remove a metallic pipe with jackhammers and other instruments. Paragraph 7 (f) alleged that the defendants were negligent in driving the cement truck onto the bridge when the cement truck weighed in excess of the legal limit permitted on the bridge.\nIt is beyond cavil that the trial court may not submit for the jury’s consideration any theory of negligence which is unsupported by the evidence. Mack v. Perzanowski, supra; Goggins v. Reinzo Trucking Co., 166 Conn. 240, 246-47, 348 A.2d 569 (1974). We do not agree, however, that there was no evidence to support these allegations of the complaint.\nAs relevant to paragraph 7 (d) of the revised complaint, the record contains testimony by several witnesses that a jackhammer was used on the bridge to remove concrete and to form trenches to lay conduit for Northeast. The air compressor carried on the truck of Charter Oak which was parked in the nearby triangular area operated the jackhammer. There was also testimony by Paul Cianci, a consulting structural engineer, that the unsupported sidewalk in question was in a severely weakened condition prior to the accident and that only a little blow or vibration could cause it to collapse. We find that such testimony provided sufficient evidence to consider whether the operation of the jackhammer or similar tools further weakened the sidewalk.\nAs relevant to paragraph 7 (f) of the revised complaint, the record contains substantial evidence that the loaded cement truck weighed in excess of the legal limit *356for the bridge and that the weight of the truck was in part the cause for the collapse of the unsupported portion of the bridge. We likewise find, therefore, that the court did not err in submitting this allegation of negligence to the jury.\nThe defendants also allege that the trial court erred in its instruction on the issue of proximate cause. The defendants claim that the following portion of the trial court’s charge on proximate cause was erroneous: “If you find that even though the extension span may have been in a seriously weakened condition, the act of driving the twenty and one-half ton cement truck onto it in that condition [was a] substantial factor in causing the extension span to collapse, then you are to find that it was the Charter Oak Construction Company and Mr. Mulligan, not anyone else, who are reponsible for the plaintiff’s injuries.” The defendants claim that the court, in effect, directed a verdict for the plaintiff on the issue of proximate cause.\nOur review of the transcript reveals that the defendants took no exception to the court’s charge on this basis. The only exception taken to the instruction on the issue of proximate cause was unrelated to this claim and was made while the defendants were excepting to the court’s instruction to the jurors that they could consider the plaintiffs allegation of negligence as set forth in paragraph 7 (c) of the revised complaint. This specification claimed negligence in that “the decedent, George C. Mulligan, drove the cement truck owned by Charter Oak Construction Company, Inc., onto the sidewalk portion of said Farmington Avenue bridge when other vehicles, owned by Charter Oak Construction Company, Inc., were parked on the sidewalk area . . . .” During that exception, the defendants stated that there was “no evidence of proximate cause or that [the placing of the cement truck on the sidewalk area] was a substantial factor.” The exception taken by the defend*357ants’ counsel was insufficient to apprise the trial court, of the claim now being made in this appeal and is not, therefore, properly reviewable.2 See Mihalek v. Cichowski, 4 Conn. App. 484, 486, 495 A.2d 721 (1985); see also Practice Book f § 315 and 4185 (claim® en appeal to be distinctly raised at trial).\nThe defendants also allege that the court*® charge failed to provide the jury with adequate guidance to. decide whether the defendants owed a, duty to the plaintiff. This claim arises from the trial court’s; instruction that “[i]f the defendants knew of the presence of the plaintiff in the area where they were driving their track,, then they owed him a duty to refrain from injuring Mm as a reasonably prudent man would do.” The defendants took exception to this charge, because if failed to provide the jurors with proper guidance in; tibe event that they concluded that the defendants were, not aware of the plaintiff’s presence in the area. The defendants, argue that, “a charge that is expressly contingent upon the finding of a disputed feet, which charge is unaccompanied by any guidance whatsoever for the possibility that such fact is not found, leaves; the jury guessing about what the law is. No intelligent juror could find ample guidance in such an obviously incomplete instruction.” We disagree with the defendants’ claim that the jurors were not provided: adequate guidance as to their duty under the law should they find that the defendants were not aware of the; plaintiff s presence in the area at the time of the accident.\ngence, specifically that the defendants; knew that the *358plaintiff was in the area where the cement truck was being operated, and that they breached their duty of care by failing to operate that truck in the same manner as a reasonably prudent person. The court also instructed the jury that if the plaintiff fails to prove by a fair preponderance of the evidence that the defendants were negligent, they must render a verdict for the defendants. Such an instruction provided sufficient guidance for the jurors as to their duty should they find that the defendants were not aware of the plaintiffs presence in the area of the cement truck. Reading the jury charge as a whole, we conclude that it was sufficient to guide the jury to a lawful result. See Mack v. Perzanoswki, supra.\nIll\nEvidence of the Charter Oak’s Insurance Carrier\nThe defendants claim that the trial court erred in admitting evidence that Charter Oak was insured by the Aetna Insurance Company. Specifically, the defendants claim that the trial court erred in allowing the plaintiff to question the defendants’ engineering expert, Cianci, as to the identity and occupation of the person who hired him to investigate the accident. The witness had previously testified that he was hired to investigate the accident on behalf of Charter Oak. The witness was then allowed to testify that he was hired by John Scarpolino, a claims representative for the Aetna Insurance Company. The defendants claim that such evidence was irrelevant and extremely prejudicial. The defendants also contend that the trial court compounded this alleged error by instructing the jury that no connection should be made between an insurance company and any defendant in the case.\n“Generally, in negligence actions, evidence that the defendant carries liability insurance is inadmissi*359ble. . . . This rule, however, is not without exception. . . . Tt is usually held that it is permissible for plaintiffs counsel, when acting in good faith, to show the relationship between a witness and defendant’s insurance company where such evidence tends to show the interest or bias of the witness and affects the weight to be accorded his testimony.’ ” (Citations omitted.) Magnon v. Glickman, 185 Conn. 234, 242, 440 A.2d 909 (1981).\nDuring the discussion which took place relevant to the defendants’ objection, the court noted that it was “a well known fact in this case that Aetna [was] in this case” and at no time until the present objection, did the defendants make any objection to the introduction of that evidence. The court indicated that it was of the opinion that no further harm or prejudice would be done beyond what harm might have been done by the prior mention of the Aetna Insurance Company without objection. The plaintiff’s counsel, in defense of his right to ask who had hired the witness, stated his belief that the jury had the right to know the motive and the reason why the witness was testifying. It should also be noted that after the witness identified the person who had hired him as a claims representative of the Aetna Insurance Company, no further reference was made to Charter Oak’s insurance carrier.\nWhether the witness should have been allowed to testify that he was hired by the Aetna Insurance Company is a matter of discretion for the trial court. See id., 243. Under the facts of this case, where the Aetna Insurance Company had been referred to by name several times earlier during the course of the trial without objection by the defendants and the plaintiff’s justification for eliciting such testimony failed to demonstrate anything other than a good faith attempt to establish the witness’ motive for testifying, we do not find that the trial court abused its discretion in admit*360ümg such fes&momy. Furthermore, we find that any from the admission ©f such testimony was cured by the trial ©surfs ©antionaiy instruction to the jurors that they were mot to consider whether a defendant was insured. ¡See id. For these reasons, the trial court properly denied the defendants’ motion for a mistrial filed on the ground that evidence of insurance coverage had been improperly admitted.\nIV\nThe IMfemdants’ Motions for a Directed Verdict and for Judgment Notwithstanding the Verdict\nThe defendants’ final claim is that the trial court eiredim denyingfhe defendants’ motions for a directed verdict and for .judgment notwithstanding the verdict. The grounds proffered in support of their claim that thejpJlMBiiffifaled to prove his cause of action have been addressed fifty ha this ©pinion. For the reasons stated herein* the iiM ©ourt properly denied the defendants’ motions.\n'There is no error.\nin this ©pinion ithe other judges concurred.\n\n This action was originally brought against the named defendant, Charter Oak Construction Company, Inc., Hull-Hazard, Inc., and the town of West Hartford. The plaintiff’s actions against Hull-Hazard, Inc., and the town of West Hartford were withdrawn. As used in this opinion, the term defendants refers to the named defendant and Charter Oak Construction Company, Inc., the appellants in this case.\n\n\n This court is, of coarse, free to. recognize pMra error mot.brougMrtQ. the attention of the trial eourt where necessary t® serve; the interest, of justice. Practice Book § 4185. We find, however, thatthedefendant's”present allegation as applied to the court’’s charge, in tMs ease does not. constitute plain error.\n\n", "ocr": true, "opinion_id": 7852425 } ]

"1987-11-03"

[ "12 Conn. App. 538" ]

[ { "author_str": "Bieluch", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nBieluch, J.\nThe plaintiff brought this action seeking to recover for property damage to his vehicle allegedly caused by the negligent operation by the named defendant, Raymond Godou, of a fire truck owned by the defendant city of Bridgeport. The defendants moved to strike the complaint on the ground that it was “barred by statute,” but they failed to cite statutory authority.1 In support of their motion, the defend*540ants filed a memorandum of law which referred to General Statutes § 7-308.2 The trial court granted the defendants’ motion to strike on the grounds that the notice requirements of General Statutes § 7-308 were not alleged, and that the plaintiff failed to plead a distinct legal theory against the defendant city of Bridgeport. The plaintiff has appealed from the subsequent judgment rendered on the motion to strike. We find no error.\n*541The plaintiffs initial claim is that the motion to strike filed by the defendants was itself fatally flawed because it did not comply with Practice Book §§ 1543 and 109A.4 Specifically, the plaintiff claims that the motion failed “distinctly [to] specify” the reasons for the claimed insufficiency of the plaintiffs complaint as required by Practice Book § 154, and did not specifically identify by number the statute upon which it was grounded in violation of Practice Book § 109A. We do not agree with the plaintiffs analysis of either rule of practice.\nA general statement contained in a motion to strike that the complaint does not state a claim upon which relief can be granted is usually insufficient to comply with Practice Book § 154. Morris v. Hartford Courant Co., 200 Conn. 676, 683 n.5, 513 A.2d 66 (1986). Nevertheless, a motion to strike which is unspecific, but which adequately submits the material issue to the court, as is the case here, is sufficient to comply with *542Practice Book § 154. The statement in the defendants’ motion to strike that the plaintiff’s action was “barred by statute” was arguably unspecific, but did sufficiently apprise the court of the reasons for the claimed insufficiency of the plaintiff’s complaint.5\nAs to the second portion of the plaintiff’s first claim, Practice Book § 109A provides that when any claim made in a pleading is grounded on a statute, “the statute shall be specifically identified by its number.” The defendants’ motion to strike did not identify General Statutes § 7-308 as the basis for their claim that the plaintiff’s action was “barred by statute.” We conclude that the requirement of Practice Book § 109A is directory, rather than mandatory. Therefore, we find that the defendants’ motion did not violate its terms.\n“ ‘The test to be applied in determining whether a statute is mandatory or directory is whether the prescribed mode of action is the essence of the thing to be accomplished, or in other words, whether it relates to a matter of substance or a matter of convenience. International Brotherhood of Teamsters v. Shapiro, 138 Conn. 57, 68, 82 A.2d 345 (1951). If it is a matter of substance, the statutory provision is mandatory. State ex rel. Eastern Color Printing Co. v. Jenks, 150 Conn. 444, 451, 190 A.2d 591 (1963). If, however, the legislative provision is designed to secure order, system and dispatch in the proceedings, it is generally held to be directory, especially where the requirement is stated in affirmative terms unaccompanied by negative words. Winslow v. Zoning Board, [143 Conn. 381, 388, 122 *543A.2d 789 (1956)]. “Such a statutory provision is one which prescribes what shall be done but does not invalidate action upon a failure to comply.” Broadriver, Inc. v. Stamford, 158 Conn. 522, 529, 265 A.2d 75 (1969).’ Fidelity Trust Co. v. BVD Associates, 196 Conn. 270, 278, 492 A.2d 180 (1985).” In re Adrien C., 9 Conn. App. 506, 510-11, 519 A.2d 1241 (1987); Zoning Board of Appeals v. Freedom of Information Commission, 198 Conn. 498, 503-504, 503 A.2d 1161 (1986); State v. White, 169 Conn. 223, 238, 363 A.2d 143, cert. denied, 423 U.S. 1025, 96 S. Ct. 469, 46 L. Ed. 2d 399 (1975); State ex rel. Barnard v. Ambrogio, 162 Conn. 491, 501, 294 A.2d 529 (1972).\n“The rules of statutory construction are ‘clearly applicable’ to the construction of our rules of practice.” DeTeves v. DeTeves, 202 Conn. 292, 298, 520 A.2d 608 (1987), citing State v. Cook, 183 Conn. 520, 521, 441 A.2d 41 (1981); State v. James, 197 Conn. 358, 363, 497 A.2d 402 (1985); State v. Gethers, 193 Conn. 526, 551, 480 A.2d 435 (1984); Grievance Committee v. Trantolo, 192 Conn. 15, 22, 470 A.2d 228 (1984). Applying this principle of statutory and procedural rule construction to the case before us, we hold that the requirement of Practice Book § 109A is directory, rather than mandatory.6 The procedural rule that a “statute shall be specifically identified by its number . . . [in] pleadings filed after September 1,1979,” relates to a matter of convenience. The purpose of this rule, adopted in 1979, is self-evident. No such procedural rule existed prior to that time. It was clearly designed to make future pleadings more specific, detailed and particularly informative by pinpointing statutory authority. Such a rule promotes the often expressed judicial policy *544of full, informative, comprehensive and open disclosure of legal claims, which promotes the identification, narrowing and resolution of issues before the court. Such a rule improves the efficient movement of the court’s business for the convenience and benefit of litigants before it. Its purpose is desirable, but not mandatory. The rule does not expressly or implicitly invalidate a pleading for failure to comply.\n“The use of the word ‘shall,’ though significant, does not invariably create a mandatory duty because statutes must be construed as a whole to ascertain the legislative intention.” Tramontano v. Dilieto, 192 Conn. 426, 433-34, 472 A.2d 768 (1984); cf. Cannavo Enterprises, Inc. v. Burns, 194 Conn. 43, 51, 478 A.2d 601 (1984) (“Practice Book rule that protects important rights such as the right of jury trial and of appeal is generally construed as mandatory not directory”); State v. Cook, supra, 523 (Practice Book § 594 “mandates that the warrant [of arrest] shall be signed by the judicial authority”). We conclude, therefore, that Practice Book § 109A did not require that the motion to strike identify precisely the statute upon which it was based.\nThe plaintiff also maintains that the trial court erred in granting the defendants’ motion to strike because the court assumed facts not pleaded. The plaintiff argues that because his complaint did not allege that the defendant Godou was a “paid [or] volunteer fireman . . . performing fire duties” at the time of the accident, it did not allege the facts necessary to come within the ambit of § 7-308. In addition, the plaintiff maintains that even if his action is assumed to be based on the statute, there is nothing of record to prove that he did in fact fail to file the prescribed notice pursuant to the statute.\nIn ruling upon a motion to strike, the trial court is limited to the facts alleged in the complaint. King v. *545Board of Education, 195 Conn. 90, 93, 486 A.2d 1111 (1985). A motion to strike admits all facts well pleaded. Drazen v. Drazen, 180 Conn. 572, 573 n.3, 430 A.2d 1288 (1980); Alarm Applications Co. v. Simsbury Volunteer Fire Co., 179 Conn. 541, 545, 427 A.2d 822 (1980).\nThe plaintiffs complaint alleged that at the time of the accident the defendant city was the owner of a fire truck being operated by the defendant Godou “as the agent, servant and/or under a general authority to drive.” This broad language was clearly worded to implicate Godou in his capacity as either a paid or volunteer fireman who was performing fire duties for the city at the time of the accident. That conclusion is inescapable. The trial court did not err in finding that the plaintiff sought recovery for damages to his property pursuant to § 7-308. There was, therefore, no error in the court’s conclusion that the plaintiff’s complaint was deficient due to its failure to allege compliance with the notice provision as required by the statute.\nThe plaintiff asserts that even if the procedural mandates of § 7-308 were not met, the statute does not bar an action against the defendant Godou, an employee of the municipality, in his individual capacity. The plaintiff cites Fraser v. Henninger, 173 Conn. 52, 56-57, 376 A.2d 406 (1977), in support of this argument. The procedural posture of that case, however, distinguishes it from the case here and supports our conclusion that the plaintiff’s action against the individual employee, as well as the case against the municipal employer, was barred by the plaintiff’s failure to comply with the notice provision of § 7-308. In Fraser v. Henninger, supra, the claimant brought a two count action against a town employee and a municipality, respectively. The first count alleged a common law action for negligence on the part of the named defendant, an employee of the town of Greenwich. The second count sought recov*546ery from the defendant town pursuant to General Statutes § 7-465, an indemnification statute analogous to § 7-308 in that it provides for the assumption by municipalities of liability for damages caused by their employees, “except firemen covered under the provisions of section 7-308.” See Keogh v. Bridgeport, 187 Conn. 53, 62-63, 444 A.2d 225 (1982). Because the plaintiff in Fraser brought separate actions in two counts against the employee and the municipality, respectively, the Supreme Court held that his failure to comply with the notice provision of the statute as to the second count was not fatal to his separate claim against the defendant employee in the first count. “[A]n injured party may maintain a common-law action against a municipal employee covered by the statute, thereby avoiding those requirements which are unique to recovery under the indemnification statute. Wakelee v. DeSanto, 152 Conn. 44, 46, 202 A.2d 833 [1964]; see annot., 71 A.L.R.3d 90, 98 § 2,148 § 27 (b).” Fraser v. Henninger, supra, 56.\nThe plaintiff in the case before us filed a single count complaint alleging one cause of action jointly against the defendants in their respective roles as employee and employer. This single cause of action was brought against the individual defendant “as the agent, servant and/or under a general authority to drive” the fire truck owned by the defendant city. The trial court correctly found that this complaint was based on § 7-308. If the plaintiffs complaint had contained a separate common law negligence count against the individual defendant solely, the plaintiff could have avoided the consequences of his failure to meet the requirements of § 7-308 applicable to a cause of action against the municipal employer. This, the plaintiff did not do. “[T]he provisions of § 7-465 which permit an action to be maintained against the municipality and the employee jointly do not mean that a plaintiff may not proceed against the *547employee alone if for any reason the plaintiff cannot prevail upon the count alleging facts to support a recovery from the municipality of any judgment obtained against the employee.” Fraser v. Henninger, supra, 57. This analysis applies to the parallel provisions of § 7-308. Having failed to comply with the notice provisions of § 7-308, the plaintiff was not entitled to maintain his separate common law cause of action against the individual defendant.\nThere is no error.\nIn this opinion the other judges concurred.\n\n The motion alleged as follows: “The defendants herein, Raymond Godou and the City of Bridgeport, move to strike the complaint in the above captioned case because it is barred by statute and file herewith the attached memorandum of law.”\n\n\n “[General Statutes] Sec. 7-308. assumption of liability for damages caused by firemen. The word ‘municipality,’ as used in this section, shall have the meaning ascribed to it by section 7-314 and the words ‘fire duties’ mean those duties the performance of which is defined in said section. Each municipality of this state, notwithstanding any inconsistent provisions of law, general, special or local, or any limitation contained in the provisions of any charter, shall pay on behalf of any paid or volunteer fireman of such municipality all sums which such fireman becomes obligated to pay by reason of liability imposed upon such fireman by law for damages to person or property, if the fireman, at the time of the occurrence, accident, injury or damages complained of, was performing fire duties and if such occurrence, accident, injury or damage was not the result of any wilful or wanton act of such fireman in the discharge of such duties. This section shall not apply to damages to person caused by an employee to a fellow employee while both employees are engaged in the scope of their employment for such municipality if the employee suffering such damages or, in the case of his death, his dependent has a right to benefits or compensation under chapter 568 by reason of such damages. If a fireman or, in the case of his death, his dependent has a right to benefits or compensation under chapter 568 by reason of injury or death caused by the negligence or wrong of a fellow employee while both employees are engaged in the scope of their employment for such municipality, such fireman or, in the case of his death, his dependent shall have no cause of action against such fellow employee to recover damages for such injury or death unless such wrong was wilful and malicious. The municipality may arrange for and maintain appropriate insurance or may elect to act as a self-insurer to maintain such protection. No action or proceeding instituted pursuant to the provisions of this section shall be prosecuted or maintained against the municipality or fireman unless at least thirty days have elapsed since the demand, claim or claims upon which such action or special proceeding is founded were presented to the clerk or corresponding officer of such municipality. No action for personal injuries or damages to real or personal property shall be maintained against such municipality and fireman unless such action is commenced within one year after the cause of action therefor has arisen nor unless notice of the intention to commence such action and of the time when *541and the place where the damages were incurred or sustained has been filed with the clerk or corresponding officer of such municipality and with the fireman within six months after such cause of action has accrued. No action for trespass shall lie against any fireman crossing or working upon lands of another to extinguish fire or for investigation thereof. Governmental immunity shall not be a defense in any action brought under this section. In any such action the municipality and the fireman may be represented by the same attorney if the municipality, at the time such attorney enters his appearance, files a statement with the court, which shall not become part of the pleadings or judgment file, that it will pay any verdict rendered in such action against such fireman. No mention of any kind shall be made of such statement by any counsel during the trial of such action.”\n\n\n “[Practice Book] Sec. 154. —reasons\n“Each motion to strike raising any of the claims of legal insufficiency enumerated in the preceding sections shall separately set forth each such claim of insufficiency and shall distinctly specify the reason or reasons for each such claimed insufficiency.”\n\n\n “[Practice Book] Sec. 109A. —allegations based on statutory GROUNDS\n“When any claim made in a complaint, cross complaint, special defense, or other pleading is grounded on a statute, the statute shall be specifically identified by its number. This section shall apply only to pleadings filed after September 1, 1979.”\n\n\n We note that the requirement of Practice Book § 155 that a motion to strike be accompanied by an appropriate memorandum of law citing the legal authorities upon which the motion relies, does not dispense with the requirement of § 154 that the reasons for the claimed pleading deficiency be specified in the motion itself. Morris v. Hartford Courant Co., 200 Conn. 676, 683 n.5, 513 A.2d 66 (1986); King v. Board of Education, 195 Conn. 90, 94 n.4, 486 A.2d 1111 (1985).\n\n\n We note that Practice Book § 109A was adopted by the judges of the Superior Court on March 30, 1979, effective July 1, 1979, and was made applicable to pleadings filed after September 1, 1979. No similar rule governed demurrers. See Practice Book, 1963, §§ 105 through 114.\n\n", "ocr": true, "opinion_id": 7852556 } ]

"1988-01-05"

[ "13 Conn. App. 205" ]

[ { "author_str": "Stoughton", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nStoughton, J.\nThis is an appeal from the denial of a permanent injunction. Because the issues have become moot, we dismiss the appeal.\nThe plaintiff sought temporary and permanent injunctions against the town of Enfield and two town officials under the Uniform Relocation Assistance Act (URAA); General Statutes §§ 8-266 through 8-282; in order to secure replacement housing and relocation assistance. The record contains no response to the complaint. It appears from the trial court’s memorandum of decision, however, that in order to expedite matters the parties submitted a stipulation of facts upon which the case would be decided, the sole issue to be whether a permanent injunction should issue. Under the circumstances of this case, we deem that the stipulation of facts will suffice as a responsive pleading. See Waterbury Hospital v. Connecticut Health Care Associates, 186 Conn. 247, 248, 440 A.2d 310 (1982).1 In addition to the use of the stipulation, the trial court held a hearing so that supplemental facts might be presented.\nThe plaintiff, a low-income resident of Enfield, moved into a first-floor unit in Enfield in August of 1985 with her two small children. This unit had been commercial space, and a special use permit was required from the Enfield planning and zoning commission before the space could be converted to residential use. The landlord was advised of the zoning restriction, but failed *207to apply for a special use permit. After there had been a fire in the unit on January 7, 1986, the Thompson-ville fire district marshall inspected the building and found many violations of the fire, safety, health, housing and building codes. The Enfield deputy building officer condemned and posted the building as unsafe, and the occupants were required to leave. The plaintiff applied to the director of community development of the town of Enfield for relocation assistance under the URAA. On January 22, 1986, her application was denied on the ground that the plaintiff had not lawfully occupied the dwelling unit. This action seeking injunctive relief followed. The plaintiff also requested a hearing before the relocation assistance appeals board of the state department of housing seeking monetary relief. The administrative hearing officer granted the plaintiffs motion for stay of proceedings pending the outcome of the action seeking injunctive relief.\nThe defendant moved to dismiss the action in the trial court for failure of the plaintiff to exhaust her administrative remedies. The motion to dismiss was denied and the request for monetary relief from the relocation assistance appeals board remains pending.\nThe trial court found that the plaintiff was forced to move because of violations of the fire safety, housing, health, building and zoning codes. It concluded that zoning codes are not included within “building code,” as that term is used in the URAA. See Dukes v. Durante, 192 Conn. 207, 216, 471 A.2d 1368 (1984). The court concluded that eligibility under the URAA is limited to persons displaced from a dwelling “actually and lawfully” occupied; General Statutes § 8-270; and that because the plaintiff occupied the premises in violation of the zoning ordinances she did not occupy the premises lawfully. It, therefore, denied the application for a permanent injunction.\n*208During oral argument, the plaintiff conceded that she now has replacement housing and that she no longer seeks injunctive relief. She claims, however, that she is entitled to monetary relief under the URAA. The trial court did not consider any right the plaintiff might have to monetary relief because the parties had agreed that the scope of the relief sought was injunctive. The court was aware, however, of the plaintiffs claim for monetary relief from the department of housing.\nUnder the circumstances of this case, even if this court should conclude that the trial court was in error in denying injunctive relief, no practical relief could follow because the plaintiff no longer seeks injunctive relief, the issue upon which the trial court ruled. It is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow. Waterbury Hospital v. Connecticut Health Care Associates, supra, 249; Gormley v. Panuzio, 166 Conn. 1, 3, 347 A.2d 78 (1974). The doctrine of mootness is applicable to decrees and orders relating to injunctions. Waterbury Hospital v. Connecticut Health Care Associates, supra, 249 n.3.\nThe appeal is dismissed.\nIn this opinion the other judges concurred.\n\n The proceedings below in this action were quite similar to those in Waterbury Hospital v. Connecticut Health Care Associates, 186 Conn. 247, 440 A.2d 310 (1982). There, a hearing to show cause why a temporary injunction should not issue was, by stipulation of the parties, allowed to proceed as though it was a hearing on the issuance of a permanent injunction. The defendants had not filed answers to the plaintiff’s complaint. Id., 248.\n\n", "ocr": true, "opinion_id": 7852636 } ]

"1988-11-15"

[ "17 Conn. App. 102" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nPer Curiam.\nThe defendant appeals from the judgment of conviction rendered after he entered a conditional plea of nolo contendere to the crime of possession of narcotics, General Statutes § 21a-279.\nThe sole question presented for our resolution is whether the evidence adduced at a hearing on the defendant’s motion to suppress supports the court’s determination that a warrantless search of the defendant’s person and property was conducted with the consent of the defendant.\nAt a suppression hearing, the state has the burden of establishing by a preponderance of the evidence that the defendant voluntarily consented to the search. United States v. Calvente, 722 F.2d 1019, 1023 (2d Cir. 1983). “[T]he question whether a consent to a search was in fact ‘voluntary’ or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances.” Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973), accord State v. Jones, 193 Conn. 70, 79, 475 A.2d 1087 (1984); State v. Blevins, 13 Conn. App. 413, 417, 536 A.2d 1002 (1988); State v. Davis, 3 Conn. App. 359, 364, 488 A.2d 837 (1985). The voluntariness of the consent is normally *104decided by the trial court based on the evidence it deems credible along with the reasonable inferences that can be drawn therefrom. State v. Reddick, 189 Conn. 461, 469, 456 A.2d 1191 (1983). “The ultimate question ‘is whether the will of the consenting individual was overborne, or whether the consent was his unconstrained choice.’ ” State v. Blevins, supra, 417, quoting State v. Cobbs, 7 Conn. App. 656, 659, 510 A.2d 213 (1986). The conclusions of the trial court will stand on appeal unless they are clearly erroneous. State v. Zindros, 189 Conn. 228, 244, 456 A.2d 288 (1983), cert. denied, 465 U.S. 1012, 104 S. Ct. 1014, 79 L. Ed. 2d 244 (1984).\nThe evidence presented at the suppression hearing amply supports the trial court’s finding that the search of the defendant was consensual. The trial court properly denied the defendant’s motion to suppress.\nThere is no error.\n", "ocr": true, "opinion_id": 7853115 } ]

"1988-11-07"

[ "17 Conn. App. 803" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nPer Curiam.\nThere is no error.\n", "ocr": true, "opinion_id": 7853214 } ]

"1989-07-25"

[ "19 Conn. App. 216" ]

[ { "author_str": "Stoughton", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nStoughton, J.\nIn these consolidated appeals, the named defendant appealed from a judgment in each case dismissing its counterclaims. At oral argument, the named defendant conceded that its counterclaim in appeal No. 7448 was properly dismissed.1 Accordingly, we find no error in that appeal and address appeal No. 7458.\nThe plaintiff commissioner of the department of environmental protection initiated the action in the second case by service of a complaint on the defendant on November 3, 1986. The plaintiff alleged that the defendant was operating a solid waste transfer-resource recovery facility in Bridgeport without a permit in violation of General Statutes (Rev. to 1985) § 22a-208,2 a portion of the Solid Waste Management *219Act. He also alleged that the defendant was discharging waste substance or other material to the waters of the state without a permit in violation of General Statutes (Rev. to 1985) § 22a-430,3 a portion of the Water Pollution Control Act. The complaint alleged that the plaintiff had issued an order requiring that the defendant bring itself into compliance with the provisions of the law, that the defendant had not appealed and that the order had become a final order not subject to review. The complaint alleged further that an inspection showed that the defendant had not complied with the order and that it was maintaining a condition reasonably expected to pollute, impair or destroy the air, water or natural resources of the state. The plaintiff sought injunctive relief and monetary penalties under certain provisions of the General Statutes.\nThe defendant filed an answer, various special defenses and a counterclaim in two counts. The first count alleges that General Statutes § 22a-220 (a) imposed upon all municipalities of the state a duty to make provisions for the safe and sanitary disposal of solid waste, that the commissioner knew that a number of municipalities including Bridgeport had not complied with the statute, that he had done nothing to compel compliance and that as a result of the indifference of the commissioner the defendant has sustained damages to its business and reputation. The second count alleges that, by reason of the enforcement action, the commissioner has engaged in irrational and abusive conduct that deprived the defendant of liberty and *220property rights in violation of the fourteenth amendment to the United States constitution and of 42 U.S.C. § 1983, and that as a result it has sustained damages in excess of $15,000.\nThe commissioner moved to dismiss the counterclaims on the grounds (1) that they did not arise out of the same cause of action as the plaintiff’s claims, and (2) that the court lacked subject matter jurisdiction to entertain either count under the doctrine of sovereign immunity. The trial court granted the plaintiff’s motion on the grounds that the first count did not arise out of the enforcement order and that the second count was not so connected with the matter in controversy that its consideration was necessary for a full determination of the rights of the parties as to the matter in controversy.\nIn any action for legal or equitable relief, the defendant may file counterclaims against the plaintiff provided that each counterclaim arises out of the transaction that is the subject of the plaintiff’s complaint. Practice Book § 116. A counterclaim is a cause of action existing in favor of a defendant against a plaintiff that a defendant pleads to diminish, defeat or otherwise affect a plaintiff’s claim. It allows a recovery by the defendant. Home Oil Co. v. Todd, 195 Conn. 333, 341, 487 A.2d 1095 (1985). The rule permits joinder of closely related claims arising out of the same transaction where such joinder is in the best interests of judicial economy. Wallingford v. Glen Valley Associates, Inc., 190 Conn. 158, 161, 459 A.2d 525 (1983). The transaction test is a practical one, and the trial court’s determination as to whether that test has been met ought not to be disturbed except for an abuse of discretion. Id.\nUnder the provisions of General Statutes § 22a-6, as it existed at the time of the commencement of this action and as it exists today, the plaintiff may insti*221tute legal proceedings including, but not limited to, suits for injunctions for the enforcement of any order issued by him. General Statutes § 22a-226 provided then and now for a penalty not to exceed $10,000 per day for violation of a final order of the commissioner and for injunctive relief to prevent any further violation of the order. General Statutes § 22a-438, both then and now, provided for forfeiture to the state of a sum not to exceed $10,000 for each violation of the Water Pollution Control Act, the amount to be fixed by the court, and provides that the attorney general institute a civil action to recover such forfeiture upon complaint of the commissioner.\nThis action was brought by the plaintiff to enforce an order issued by him and to recover a claimed forfeiture. The defendant admits that there was no appeal from the order. The defendant’s claim that it has sustained damages to its business and reputation because of some perceived failure on the part of the plaintiff to see that the city of Bridgeport made provision for safe and sanitary disposal of solid waste, does not arise out of the plaintiff’s action to enforce its order to the defendant.\nIn the second count, the counterclaim repeats all the allegations of the first count and alleges that the enforcement action is irrational and abusive and has caused the defendant to sustain damages. At first, this might seem to approach more nearly the requirement that it arise out of the same transaction as the complaint. It is at bottom, however, a claim for damages. It would not operate to defeat, diminish or affect the plaintiff’s claims, which are claims for injunctive relief and for penalties. The defendant apparently did not seek a hearing after the plaintiff’s order was issued, which it would have been entitled to do under General *222Statutes § 22a-225 (b)4. The injunction is mandatory when the defendant has chosen not to attack the reasonableness of the order in a case such as this where factfinding has been entrusted by the legislature to the administrative agency and an injunction is sought to enforce an administration order in furtherance of a vital public interest. See Water Resources Commission v. Connecticut Sand & Stone Corporation, 170 Conn. 27, 364 A.2d 208 (1975). For the purposes of the commissioner’s suit for an injunction and penalties payable to the state, the court and the commissioner are coordinate actors in the achievement of the purposes of the Solid Waste Management Act. See Connecticut Water Co. v. Beausoleil, 204 Conn. 38, 45, 526 A.2d 1329 (1987). Those purposes require an expedited hearing pursuant to General Statutes § 22a-226 and the absolute right to an injunction if the plaintiff proves that the defendant has failed to comply with his order. See Connecticut Water Co. v. Beausoleil, supra. Resolution of the defendant’s claims for damages would be likely to hamper the speedy resolution that we deem the legislature to have intended where it is alleged that conditions may reasonably be expected unreasonably to pollute air, water or natural resources. See id., 48.\nWe cannot say that the trial court abused its discretion in dismissing the counterclaim.\nThere is no error on either appeal.\nIn this opinion the other judges concurred.\n\n In No. 7448, Carothers v. Connecticut Building Wrecking Co., the plaintiff filed a motion to dismiss the defendants’ counterclaim because it did not arise out of the same cause of action as the plaintiffs claims and because of the lack of subject matter jurisdiction. The motion was granted, both because the defendants had failed to file a memorandum of law in opposition as required by Practice Book § 143, and on the merits. The named defendant has conceded that the defendant did not file a memorandum of law in opposition to the motion to dismiss and that, accordingly, the counterclaim was properly dismissed. See Hughes v. Bemer, 200 Conn. 400, 510 A.2d 992 (1986); Burton v. Planning Commission, 13 Conn. App. 400, 536 A.2d 995 (1988), aff’d, 209 Conn. 609, 553 A.2d 161 (1989).\n\n\n General Statutes (Rev. to 1985) § 22a-208 provides in pertinent part: “(c) No solid waste facility shall be built, established or altered after July 1, 1971, until the plan and design and method of operation of the same have been filed with the department and approved by the commissioner by the issuance of a permit, provided, nothing in this chapter or in chapter 446e shall be construed to limit the right of any local governing body to regulate, through zoning, land usage for solid waste disposal. No solid waste facility shall be operated on or after October 1, 1984, unless the owner or operator of such facility has filed a closure plan with the commissioner which he has approved as in compliance with regulatory standards adopted pursuant to section 22a-209. The commissioner shall send a written notification of any application for a permit to the chief elected official of each municipality in which the proposed facility is to be located within five business days of the date on which any such application is filed.”\n\n\n General Statutes (Rev. to 1985) § 22a-430 provides in pertinent part: “(a) No person shall, after May 1, 1967, and no municipality shall, after April 10, 1973, initiate, create or originate any new discharge of water, substance or material into the waters of the state without first obtaining a permit for such discharge from the commissioner. Application for such permit shall be on a form prescribed by the commissioner and shall include such information as the commissioner may therein require.”\n\n\n General Statutes § 22a-225 (b) provides: “Unless a person aggrieved by an order files a written request for a hearing before the commissioner within thirty days after the date of issuance, such order shall become effective. If requested, the commissioner shall hold a hearing as soon thereafter as practicable. A request for a hearing shall be a condition precedent to any appeal. The commissioner may, after the hearing or at any time after the issuance of his order, modify such order by agreement or extend the time schedule therefor if he deems such modification or extension advisable or necessary, and any such modification or extension shall be deemed to be a revision of an existing order and shall not constitute a new order. There shall be no hearing subsequent to or any appeal from any such modification or extension.”\n\n", "ocr": true, "opinion_id": 7853425 } ]

"1989-12-05"

[ "20 Conn. App. 290" ]

[ { "author_str": "Spallone", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nSpallone, J.\nThe defendant appeals from his convictions, after a jury trial, of two counts of possessing and selling cocaine in violation of the state dependency-producing drug law, General Statutes § 21a-278 (b). The defendant claims that the trial court erred in its jury instructions on the element of possession and in refusing to permit the defendant to call the prosecuting attorney as a witness. We find no error.\nThe jury could have reasonably found the following facts. At about 10 p.m. on December 22, 1986, the Bridgeport police established a drug surveillance in the State Street and Lee Avenue area. Officer Daniel Herlihy conducted his surveillance, with the aid of field glasses, from the front porch of a building on Lee Avenue. He observed the defendant standing near the rear of an automobile abandoned on the street. For approximately two hours, Herlihy observed the defendant’s repeated pattern of activity. The defendant would hail passing cars by waving or shouting. The car would stop and the driver or passenger would approach the defendant and engage in brief conversation. The defendant would bend down, pick up something from the ground at the rear of the abandoned car and exchange items with the driver or passenger of the waiting vehicle.\nAt approximately 11 p.m., Herlihy stopped a vehicle driven by a person who had just completed such an exchange with the defendant. The driver handed the officer a small white packet, later determined to contain cocaine. The defendant was immediately placed under arrest, searched and found to be in possession of $244 but no drugs. The area near the abandoned car was searched and seven packets of white powder, later determined to be cocaine, were found on the road under the right rear fender.\nAt trial, the defendant denied any connection to the drugs found by the abandoned car. The defendant sub*292mitted a request to charge the jury on the issue of possession and claims that the trial court erred in failing to include a requested paragraph in the jury instructions. The defendant would have had the court charge that if the jury found the defendant not to be in exclusive control of the premises, it could not, without additional evidence, infer that the defendant knew of the presence of the drugs.1 Because the narcotics were located in a public area beneath an abandoned car, the defendant argues, the jury had to find, beyond a reasonable doubt, that the defendant was in exclusive control of the drugs. We disagree.\nThe charge on exclusive possession requested by the defendant is inappropriate in this case. The charge originated in Evans v. United States, 257 F.2d 121, 128 (9th Cir.), cert. denied, 358 U.S. 866, 79 S. Ct. 98, 3 L. Ed. 2d 150 (1958), and the exclusive control determination has been applied to cases concerned with the possession and control of drugs in “premises,” e.g., apartments, homes, and motor vehicles containing at least two people. See State v. Delossantos, 211 Conn. 258, 277-78, 559 A.2d 164, cert. denied, U.S. , 110 S. Ct. 188, 107 L. Ed. 2d 142 (1989); State v. Alfonso, 195 Conn. 624, 633, 490 A.2d 75 (1985); State v. Santiago, 17 Conn. App. 273, 278, 552 A.2d 438 (1989); State v. Pena, 16 Conn. App. 518, 525, 548 A.2d 445, cert. denied, 209 Conn. 803, 552 A.2d 1217 (1988). These cases hold that the exclusive control of premises supports an inference that the resident or owner is aware and in control of any contraband present. If, however, the resident is not in exclusive control of the *293premises, specific evidence of knowledge and control is required to support the inference of possession.\nThe defendant offers no explanation nor cites any supportive authority for why this court should consider an abandoned car to be “premises,” to be treated at law as if it were a car with multiple occupants. Unlike the cases concerned with the control of premises, the defendant’s possession of the drugs was not inferred from his exclusive control of the abandoned car. The defendant was charged with the knowing possession of matter known to be contraband with the intent to sell. Possession, actual or constructive, was defined in the trial court’s jury instructions as “the power to exercise dominion or control over the drugs” (Emphasis added.) Possession and control of the car was not at issue.\nWe conclude that the charge as given was correct and appropriate. The court correctly defined the elements of the crime. The jury could reasonably have found that the defendant knew the packets were under the car and knew the packets contained drugs. Notwithstanding that the drugs were found in a publicly accessible area, the jury could have reasonably found that the defendant exercised dominion and control over, and so was in possession of, the contraband. See State v. Melillo, 17 Conn. App. 114, 117-18, 550 A.2d 319 (1988) (defendant found in possession of drugs hidden in base of tree).\nIn his second claim of error, the defendant asserts that the trial court should have permitted him to call the prosecutor, assistant state’s attorney C. Robert Satti, Jr., to the stand. Prior to this trial, Satti had filed an amended information against John Colter charging Colter with the sale of narcotics. Satti also argued the facts of the information to the court when Colter later changed his plea to guilty. Colter had been arrested *294at the same time, date and place as the defendant for activities unrelated to the defendant. The amended information filed by Satti states the time of Colter’s arrest as 10 p.m. The defendant argues that because he was arrested after 11 p.m., evidence concerning the time discrepancy would tend to contradict the testimony of Herlihy. The defendant’s motion to disclose exculpatory information requested that the state make available the Colter amended information and Satti’s testimony from Colter’s change of plea proceeding. The motion was denied, as was the defendant’s subsequent request to examine Satti at trial on his prior statements. The defendant claims that he was impermissibly denied the opportunity to introduce evidence that would have put in doubt Herlihy’s identification of the defendant. We disagree.\nRule 3.7 of the Rules of Professional Conduct2 codifies what is commonly called the “advocate-witness rule,” and many cases have considered the application of this rule to determine whether a client may seek testimony from his own lawyer at trial. The rule permits an attorney actively participating in the case to be a witness as to merely formal matters but discourages testimony as to other matters on behalf of his client except when essential to the ends of justice. State v. Blake, 157 Conn. 99, 102, 249 A.2d 232 (1968), citing Number 19 of the Canons of Professional Ethics; see also State v. Rapuano, 192 Conn. 228, 231, 471 A.2d 240 (1984).\n*295The rule does not render the attorney incompetent as a witness or disqualify him from testifying, although it may be a serious impropriety for him both to testify and to continue active participation in the case. State v. Blake, supra; Lebowitz v. McPike, 151 Conn. 566, 570, 201 A.2d 469 (1964); Puglio v. Puglio, 18 Conn. App. 606, 608, 559 A.2d 1159 (1989). To have an advocate-witness, the party must demonstrate the necessity for the testimony, such as “an emergency the likelihood of which could not reasonably have been anticipated in time for [the attorney] to withdraw from the case before trial.” State v. Blake, supra.\nThe Supreme Court has applied this unforeseeable exigency standard to cases in which a party wanted to have his own attorney as a witness. See, e.g., State v. Rapuano, supra; State v. Blake, supra; Lebowitz v. McPike, supra; Miller v. Urban, 123 Conn. 331, 334, 195 A. 193 (1937). The courts in this state have not previously had an opportunity to consider the standard to be applied where, as here, a criminal defendant seeks testimony from the prosecuting attorney. There are, however, numerous federal cases that address this issue and that consistently apply the test of “compelling need.” See, e.g., United States v. Prantil, 764 F.2d 548 (9th Cir. 1985); United States v. Dack, 747 F.2d 1172 (7th Cir. 1984); United States v. Schwartzbaum, 527 F.2d 249 (2nd Cir. 1975), cert. denied, 424 U.S. 942, 96 S. Ct. 1410, 47 L. Ed. 2d 348 (1976).\nThis compelling need test is consistent- with the advocate-witness rule in that there is no absolute bar to calling a participating prosecutor as a witness. The possibility for abuse, however, is of such a magnitude as to require the satisfaction of a higher standard. United States v. Prantil, supra, 554. In United States v. Birdman, 602 F.2d 547, 553-55 (3rd Cir. 1979), cert. denied, 444 U.S. 1032, 100 S. Ct. 703, 62 L. Ed. 2d 668 (1980), the United States Court of Appeals for the *296Third Circuit examined the case law and identified four policies served by applying the compelling need standard to the situation of prosecutor-witness.\nFirst, there is the risk that the prosecutor may not be a fully objective witness. Id., 553. Second, there exists the justifiable fear that, when a prosecutor takes the witness stand, “the prestige or prominence of the prosecutor’s office will artificially enhance his credibility as a witness.” United States v. Johnston, 690 F.2d 638, 643 (7th Cir. 1982). Third, the jury may understandably be confused by the prosecutor’s dual role. Id. The jury would be required to segregate the factual testimonial account of the prosecutor-witness from the exhortations of the prosecutor-advocate. United States v. Prantil, supra, 553. “Naturally, the potential for jury confusion is perhaps at its height during final argument when the prosecutor must marshall all the evidence, including his own testimony, cast it in a favorable light, and then urge the jury to accept the government’s claims.” Id. Finally, a broader concern for public confidence in the administration of justice suggests the maxim that “ ‘justice must satisfy the appearance of justice.’ ” United States v. Johnston, supra; United States v. Birdman, supra, 554. Public confidence in our criminal justice system may be eroded by even the appearance of impropriety. United States v. Prantil, supra.\nPermitting a defendant to call his prosecuting attorney as a witness, therefore, “inevitably confuses the distinctions between advocate and witness, argument and testimony, [and] is acceptable only if required by compelling and legitimate need.” United States v. Schwartzbaum, supra, 253. Because these concerns implicate fundamental tenets of our adversarial system, we adopt the federal standard. Accordingly, we hold that a defendant must demonstrate a compelling need before a participating prosecutor will be permitted to testify.\n*297The trial court is charged with making the determination of the materiality of the witness’ testimony and must, of course, honor the defendant’s constitutional rights of confrontation and compulsory process. United States v. Prantil, supra, 552. The defendant who wants to call his prosecutor as a witness must demonstrate that the testimony is necessary and not merely relevant, and he must show that he has exhausted other available sources of comparably probative evidence. Id., 551.\nThe defendant in the present case does not meet the requirements of the compelling need test. The defendant states that he would have examined the prosecutor as to the hour of Colter’s arrest, as specified by the prosecutor in the Colter amended information and at the subsequent plea proceeding. This detail would have been used to impeach Herlihy’s credibility. The prosecutor’s testimony for impeachment purposes was not vital to the defense. See id., in which the prosecutor’s testimony was vital to the defense because he was both a witness to and a participant in the factual events at issue.\nThe defendant had alternate means that he did not exhaust of bringing the evidence before the jury. Colter himself testified for the defense and could have been examined concerning the hour of his arrest. The amended information could have been used, if necessary, to refresh Colter’s memory. Colter’s amended information and the transcript from his plea proceeding would have been sufficient in themselves to establish inconsistencies. See United States v. Schwartzbaum, supra (prosecutor not needed to testify to government prepared memorandum). Upon the defendant’s request, the court could have taken judicial notice of the documents. See State v. Crump, 201 Conn. 489, 500, 518 A.2d 378 (1986); State v. Lenihan, 151 Conn. 552, 554, *298200 A.2d 476 (1964). There was no compelling need to examine Satti and the court committed no error in refusing the defendant’s request to do so.\nThere is no error.\nIn this opinion the other judges concurred.\n\n The defendant requested the following instruction. “Therefore, if you find that the defendant was not in exclusive possession of the premises where the narcotics were found, in order to infer that he knew of their presence, and that he was in control of them, you must also find that he made an incriminating statement or that there are other circumstances which tend to support that inference.”\n\n\n Rule 3.7 of the Rules of Professional Conduct, entitled Lawyer as Witness, provides in pertinent part:\n“(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness except where:\n“(1) The testimony relates to an uncontested issue;\n“(2) The testimony relates to the nature and value of legal services rendered in the case; or\n“(3) Disqualification of the lawyer would work substantial hardship on the client.”\n\n", "ocr": true, "opinion_id": 7853546 } ]

"1990-01-17"

[ "20 Conn. App. 821" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nPer Curiam.\nThere is no error.\n", "ocr": true, "opinion_id": 7853641 } ]

"1991-02-12"

[ "24 Conn. App. 81" ]

[ { "author_str": "Daly", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nDaly, J.\nThe plaintiffs1 instituted an action for negligence against the defendants.2 From a summary judgment rendered in favor of the defendant Christopher Marx and from a summary judgment rendered in favor of the defendant Kapetan, Inc., the plaintiffs filed separate appeals.3\nThe plaintiffs are the owners and the lessee of a warehouse located at 8 Rose Hill Avenue, Danbury, in which the second floor collapsed. The second floor was an addition constructed by Kapetan utilizing the designs of an architect, John Cruet, and the structural expertise of an engineer, Marx. Kapetan substantially completed the floor on July 31, 1979, and it collapsed in September, 1986. The plaintiffs commenced this action on July 22 and 23, 1987.\nCruet filed a motion for summary judgment based on the statute of limitations, which the trial court, Hickey, J., denied.4\n*83The defendants, Marx and Kapetan, subsequently filed motions for summary judgment based on the statute of limitations which were granted by the trial court, Moraghan, J. The plaintiffs appeal from the judgments granting the latter motions, and claim that the trial court improperly granted the motions for summary judgment because it failed to follow the law of the case and incorrectly construed the statute of limitations. We disagree.\nA judge is not bound to follow the earlier decisions of another judge in the same proceedings. If the same point of law is raised again in the proceedings before another judge, the question may be reconsidered if the court believes it was incorrectly decided earlier. Thus, the law of the case principle is a flexible concept, adaptable to the exigencies of different cases. “The adoption of a different view of the law by a judge in acting upon a motion for summary judgment than that of his [or her] predecessor in considering such a motion or some other pretrial motion is a common illustration of this principle. . . . From the vantage point of an appellate court it would hardly be sensible to reverse a correct ruling by a second judge on the simplistic ground that it departed from the law of the case established by an earlier ruling.” (Citations omitted.) Breen v. Phelps, 186 Conn. 86, 100, 439 A.2d 1066 (1982).\nSummary judgment shall be rendered if the pleadings, affidavits and other proof submitted show that *84there is no genuine issue as to any material fact and that the movant is entitled to the judgment as a matter of law. Practice Book § 384. Because the parties do not dispute the chronology of this case, the sole legal issue is whether the injury occurred more than seven years after substantial completion of the addition. General Statutes § 52-584a. In the first summary judgment involving Cruet, the trial court determined that the collapse had occurred during the seventh year, while the second trial court held that injury occurred more than seven years after substantial completion.\nGeneral Statutes § 52-584a provides in part that “No action . . . shall be brought . . . more than seven years after substantial completion .... (b) Notwithstanding [the above] . . . an injury to property . . . which . . . occurred during the seventh year after such substantial completion . . . may be brought within one year after the date on which such injury occurred . . . but in no event . . . more than eight years after substantial completion . . . .” We agree with the second trial court that the injury must occur within the seven years, but the action may be brought in the eighth if the injury occurs in the seventh year.\nWhere legislative intent is clear, and the language used is unambiguous, there is no room for statutory construction. B. Holden & J. Daly, Connecticut Evidence § 50. When a statute does not define a term, however, it is appropriate to consult the common understanding expressed in the law and in dictionaries. Beloff v. Progressive Casualty Ins. Co., 203 Conn. 45, 49, 523 A.2d 477 (1987).\nBallentine’s Law Dictionary (3d Ed.) defines during as “[throughout a period of time” and “[a] point of time within a period.” Webster, Third New International Dictionary defines during as “[throughout the continuance or course of” and “at some point in the course *85of.” The American Heritage Dictionary (New College Ed.) states that during means “[throughout the course or duration of,” “[wjithin the time of” and “at some time in.” Applying these definitions, we interpret the statute as stating that the injury must occur within seven years after substantial completion. Because the plaintiffs’ injury here occurred more than seven years after substantial completion of the addition, and not during the seventh year, we find that their complaint cannot comply with the statute of limitations. Therefore, we agree with the second trial court that summary judgment lies for the defendants.\nThe judgment is affirmed.\nIn this opinion the other judges concurred.\n\n The plaintiffs Sanford Haufman and Stanley Klein are also coexecutors of the estate of the decedent, Samuel Young. The plaintiff Fairfield Processing Corporation is the lessee of certain property owned by the coexecutors.\n\n\n The other, unnamed defendants are Kapetan, Inc., a general contractor, and John Cruet, a licensed architect.\n\n\n The defendant John Cruet and the plaintiffs have agreed to be bound by this decision.\n\n\n General Statutes § 52-584a provides in pertinent part: “(a) No action . . . shall be brought against any architect or professional engineer per*83forming or furnishing the design, planning, supervision or observation of construction or construction of such improvement more than seven years after substantial completion of such improvement.\n“(b) Notwithstanding the provisions of subsection (a) of this section, in the case of such an injury to property . . . which injury occurred during the seventh year after such substantial completion, an action in tort to recover damages for such an injury or wrongful death may be brought within one year after the date on which such injury occurred . . . but in no event may such an action be brought more than eight years after the substantial completion of construction of such an improvement.” (Emphasis added.)\n\n", "ocr": true, "opinion_id": 7854066 } ]

"1991-02-12"

[ "24 Conn. App. 124" ]

[ { "author_str": "Heiman", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nHeiman, J.\nThe defendants1 appeal from a judgment rendered in favor of the plaintiff on both the plaintiffs complaint and the defendants’ counterclaim. On appeal, the defendants claim that the trial court improperly (1) doubled the plaintiff’s damage award, (2) failed to enunciate the appropriate standard of proof in awarding double damages, (3) misconstrued the interaction of the damages provisions of General Statutes § 42-110a et seq., the Connecticut Unfair Trade Practices Act (CUTPA), and General Statutes § 47a-46, the entry and detainer act, (4) awarded damages in excess of the valu*126ations the plaintiff had placed on the same property-in a separate bankruptcy proceeding, and (5) made a de facto award of punitive damages despite its finding that the defendants’ behavior did not warrant punitive damages.\nThe trial court found the following facts. On October 15, 1987, the plaintiff conveyed title to a three-family house located at 123-125 Pearl Street, Waterbury, to the defendant Alamo Management Company (Alamo). The plaintiff had occupied the first floor apartment. Before the closing, she attempted to enter into a use and occupancy agreement with Alamo because she was unable to find another apartment. Although this agreement never materialized, she remained in possession of the first floor apartment after the closing. She moved some of her belongings to a storage area, but left the balance of her appliances and personal property on the premises while she looked for a larger storage unit.\nAlamo entered into an agreement to sell the premises to a third party. The new buyer had a mortgage commitment on November 26, 1987. On Saturday, November 28,1987, the defendant Dwayne Boise, acting as an agent of the defendant Alamo, forcibly entered the plaintiff’s apartment and began to remove her property. When the plaintiff arrived, Boise refused to allow her to enter the apartment. Her appliances were set aside so that she could pick them up the following Monday, but her other personal property was strewn about the yard or thrown in a dump truck for disposal.\nThe trial court also found (1) that because the plaintiff’s original possession of the premises was rightful, the only proper mode of eviction available to the defendants was that of summary process, (2) that the plaintiff had not abandoned the premises, (3) that the defend*127ant Boise violated General Statutes § 47a-43 (a) (3) when he forcibly entered the plaintiff’s apartment, removed her personal property, and disposed of it, (4) that the plaintiff was entitled to double damages pursuant to General Statutes § 47a-46 in the amount of $14,000, (5) that the defendants’ actions violated CUTPA, (6) that, although the plaintiff was not entitled to the damages found under General Statutes §§ 47a-43 (a) (3) and 47a-46, and CUTPA, it would award the plaintiff reasonable attorney’s fees and her taxable costs, and (7) that the defendants’ behavior did not warrant punitive damages.\nThe defendants first claim that the trial court misconstrued General Statutes § 47a-4-6 by holding that the statute required a mandatory award of double damages once entry and detainer is found. To support this claim, the defendants direct our attention to the transcript of a hearing on the plaintiff’s motion to set attorney’s fees. At this hearing, the court stated that “the statute required me to award $14,000.”\nThe memorandum of decision filed by the trial court constitutes the judgment on the case. Practice Book § 4059. The content and intention of the court is determined by a review of all parts of the judgment. Lashgari v. Lashgari, 197 Conn. 189, 196-97, 496 A.2d 491 (1985).\nThe memorandum of decision in the present case states that “Section 47a-46 . . . permits a plaintiff who has proved a case under 47a-43 to recover double damages,” that “[djamages may be awarded,” and that “[t]he amount to be awarded must be left to the sound judgment of the trier. ” Clearly, the court realized that the award of double damages was discretionary and not mandatory. We cannot glean a contrary intention from a random phrase uttered by the court during a hearing on a motion that was unrelated to the issue of the doubling of damages.\n*128The defendants’ next claim is that because the award of double damages is an extraordinary remedy, the trial court was obligated to apply a standard of clear and convincing evidence as the plaintiff’s burden of proof.\nThe defendants further contend that because the trial court failed to enunciate the standard of proof that it applied in awarding double damages, we must assume that it applied a lower standard of proof, that is, proof by a fair preponderance of the evidence.\nOn these two premises, the defendants posit that the issue of the award of double damages must be remanded to the trial court for the application of the proper standard of proof and a determination of whether the damages should be doubled. We agree.\nThe facts that are relevant to a determination of this issue are as follows. The final amended complaint in this case was in three counts. In the first count, the plaintiff pleaded facts alleging a violation of General Statutes § 47a-43 (a) (3).2 The gravamen of a violation of § 47a-43 (a) (3), as applicable here, is that the defendants entered the dwelling unit of the plaintiff and removed or detained her personal property. The second count of the complaint, based on a conversion theory, realleges a violation of § 47a-43 (a) (3) and then alleges failure to return the personality so removed. The third count realleges a violation of § 47a-43 (a) (3) as a factual predicate for the invocation of a claim of a CUTPA violation pursuant to § 42-110a et seq. Thus, all of the factual claims of the case have as their foundation allegations of a violation of § 47a-43 (a) (3).\n*129The trial court held that the defendants incurred liability because the facts supported a conclusion that the plaintiff was rightfully in possession of the premises, and that the defendants entered and removed the plaintiff’s personal property, disposing of a portion of it in violation of General Statutes § 47a-43 (a) (3).\nThe issue of what standard of proof should be required for double damages pursuant to General Statutes § 47a-463 appears to be one of first impression. The statute itself is silent with respect to the standard of proof required to support an award of double damages.\nThe degree of proof required is often related to the nature of the remedy sought, the proof of willful, wrongful and unlawful acts or to justify areas of result that are serious. “ ‘[CJlear and convincing proof is a standard frequently imposed in civil cases where the wisdom of experience has demonstrated the need for greater certainty, as where this high standard is required to sustain claims which have serious consequences or harsh or far-reaching effects on individuals, to prove willful, wrongful and unlawful acts, to justify an exceptional judicial remedy, or to circumvent established legal safeguards . . . .’ ” Schaffer v. Lindy, 8 Conn. App. 96, 104, 511 A.2d 1022 (1986).\nThe genesis of the statutes relating to entry and detainer is a desire to protect the peace of a neighborhood, as a matter of public policy. “By enactments dating back to colonial times, our legislature has proscribed the use of self-help remedies in obtaining possession of demised premises. Orentlicherman v. Matarese, *13099 Conn. 122, 125-26, 121 A. 275 (1923). A colonial enactment from 1722, for example, established fines and a cause of action to remedy ‘any Forceable Entry made into any lands, tenements or other Possessions ... or of any wrongful detainer of any lands, tenements, or other possessions, with force and strong hand.’ 6 Colonial Records of Connecticut 1717-1725, p. 343; see also General Statutes § 47a-43 (‘Complaint and procedure: Forcible entry and detainer’). These legislative enactments were designed to ‘protect . . . peaceable possession . . . from disturbance by any but lawful and orderly means’; Orentlicherman v. Matarese, supra, 126; and to protect the ‘peace of the neighborhood.’ (Emphasis omitted.) Dutton v. Tracy, 4 Conn. 79, 86 (1821).” Daddona v. Liberty Mobile Home Sales, Inc., 209 Conn. 243, 257, 550 A.2d 1061 (1988). The violation of the statutes relating to entry and detainer constitutes a violation of the public policy of this state. Id.\nBased on the origins of entry and detainer, it is clear that its violation involves willful, wrongful and unlawful acts. See Orentlicherman v. Matarese, supra, 126. Further, a statute that exposes a defendant to double damages creates a remedy with serious consequences to an individual. Schaffer v. Lindy, supra.\n“ ‘A standard of proof allocates the risk of error between the litigants and indicates the relative importance of the ultimate decision. Addington v. Texas, 441 U.S. 418, 423, 99 S. Ct. 1804, 1808, 60 L. Ed. 2d 323 (1979). For example, the “proof beyond a reasonable doubt” standard implies that the party on whom that burden is imposed should bear almost the entire risk of error. Id. at 423-24, 99 S. Ct. at 1808. In contrast, the “preponderance of the evidence” standard indicates that the litigants should share equally the risk of error, id. at 423, 99 S. Ct. at 1808, because the interests at stake have roughly equal societal importance. Santosky *131v. Kramer, 455 U.S. 745, 787, 102 S. Ct. 1388, 1411-12, 71 L. Ed. 2d 599 (1982) (Rehnquist, J., dissenting). Proof by “clear and convincing” evidence is an intermediate standard generally used in civil cases involving allegations of fraud or some other quasi-criminal wrongdoing, or when particularly important individual rights are involved. Addington, 441 U.S. at 424, 99 S. Ct. at 1808.’ United States v. Schell, 692 F.2d 672, 676 (10th Cir. 1982) (preponderance of the evidence standard, constitutional in ‘dangerous special offender’ proceeding to enhance defendant’s criminal sentence).” Cookson v. Cookson, 201 Conn. 229, 234, 514 A.2d 323 (1986).\nAccordingly, we conclude that, before a trial court may double an award of damages pursuant to General Statutes § 47a-46, the underlying violation of General Statutes § 47a-43 (a) (3) must have been established by clear and convincing evidence, and that, if the evidence satisfies only the fair preponderance standard, damages cannot be doubled.\nThe trial court’s memorandum of decision in this case does not set out the standard of proof employed by the court in arriving at its decision to double the damages awarded. When a memorandum of decision of the trial court is silent as to the standard of proof employed, it will be assumed that the one ordinarily applied in most civil actions, that of a fair preponderance of the evidence, was used. Manaker v. Manaker, 11 Conn. App. 653, 660, 528 A.2d 1170 (1987); Schaffer v. Lindy, supra, 105; Kavarco v. T.J.E., Inc., 2 Conn. App. 294, 297, 478 A.2d 257 (1984).\nIn its memorandum of decision, the trial court neither stated nor implied that it was applying the proper standard of proof. Under these circumstances “it is impossible for an appellate court to determine whether the trial court, had it applied the required standard of *132proof, would still have rendered judgment as it did.” Kavarco v. T.J.E., Inc., supra. Therefore, a new trial is necessary, limited to the issue of whether double damages should be awarded pursuant to General Statutes § 47a-46. See Schaffer v. Lindy, supra.\nThe defendant next claims that the trial court improperly awarded attorney's fees and costs pursuant to General Statutes § 42-110g4 in addition to its award *133of double damages pursuant to General Statutes § 47a-46. We do not agree.\nIn its memorandum of decision, the trial court concluded that the actions of the defendants violated the plaintiffs rights under CUTPA, pursuant to General Statutes § 42-110a et seq. On the basis of that violation, the court awarded reasonable attorney’s fees and costs. The defendants do not attack the conclusion of the trial court that a CUTPA violation had been established, but posits that its failure to award damages under CUTPA precluded the trial court from awarding attorney’s fees.\nThe public policy underlying CUTPA is to encourage litigants to act as private attorneys general and to engage in bringing actions that have as their basis unfair or deceptive trade practices. Hernandez v. Monterey Village Associates Limited Partnership, 17 Conn. App. 421, 425, 553 A.2d 617 (1989). In order to encourage attorneys to accept and litigate CUTPA cases, the legislature has provided for the award of attorney’s fees and costs. Gill v. Petrazzuoli Bros. Inc., 10 Conn. App. 22, 33, 521 A.2d 21 (1987); see also Chrysler Corporation v. Maiocco, 209 Conn. 579, 593, 552 A.2d 1207 (1989). Once liability has been established under CUTPA, attorney’s fees and costs may be awarded at the discretion of the court. Ven Nguyen v. DaSilva, 10 Conn. App. 527, 530, 523 A.2d 1369 (1987).\nThe court properly awarded attorney’s fees and costs to the plaintiff.\nThe defendants next assert that the court improperly awarded damages to the plaintiff on the basis of both the doctrine of collateral estoppel and double recovery. We do not agree.\nCertain additional facts are necessary for an understanding of these claims. The plaintiff had filed a peti*134tion in bankruptcy in January, 1987. In a schedule of exempt property, she set forth the value of her “household furniture, kitchen utensils and appliances” at $500. The plaintiff did not acquire any additional personal property after the date of her filing of the petition. From these facts, the defendants assert (1) that the plaintiff is collaterally estopped from asserting a value of goods in excess of the value set forth in the petition in bankruptcy, and (2) that, because the plaintiff had received a discharge in bankruptcy, she had already received a valuable consideration for the same goods. We are not persuaded.\nIn order successfully to assert a defense of collateral estoppel, the defendants must establish that the issue had been fully and fairly litigated in another proceeding, that the issue was actually decided and that the decision was necessary to the judgment. Virgo v. Lyons, 209 Conn. 497, 501, 551 A.2d 1243 (1988). Here, the defendants failed to establish any of these conditions and, thus, the court correctly refused to apply the doctrine of collateral estoppel.\nThe second prong of the claim is equally without merit. The record is devoid of any evidence that the plaintiff ever received a discharge in bankruptcy, although it does indicate that she did file a petition. In addition, no evidence was introduced to establish how a discharge in bankruptcy can be equated with the permanent loss of the goods that are the subject of this appeal. We find no fault with the court’s ruling in this regard.\nFinally, the defendants’ last claim combines claims that have been previously discussed in this opinion and resolved. We have already determined that a partial new trial is required on the double damages issue and we have held that an award of attorney’s fees *135under CUTPA was proper. This fully answers the final claim of the defendants.\nThat part of the judgment awarding double damages is reversed, and the case is remanded for a new trial limited to the issue of whether double damages should be awarded pursuant to General Statutes § 47a-46. In all other respects the judgment is affirmed.\nIn this opinion the other judges concurred.\n\n The defendants in this action are the Alamo Management Company and Dwayne Boise, a real estate salesman and agent of the defendant management company.\n\n\n General Statutes § 47a-43 (a) provides in pertinent part: “When any person . . . (3) enters into any land, tenement or dwelling unit and causes damage to the premises or damage to or removal of or detention of the personal property of the possessor . . . the party thus ejected, held out of possession, or suffering damage may exhibit his complaint to any judge of the superior court.”\n\n\n General Statutes § 47a-46 provides: “when double damages allowable. The party aggrieved may recover in a civil action double damages and his costs against the defendant, if it is found on the trial of a complaint brought under section 47a-43 that he entered into the land, tenement or dwellng unit by force or after entry held the same by force or otherwise injured the party aggrieved in the manner described in section 47a-43.”\n\n\n General Statutes § 42-110g provides: “action for damages, class ACTIONS. COSTS AND FEES. EQUITABLE relief, (a) Any person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a method, act or practice prohibited by section 42-110b, may bring an action in the judicial district in which the plaintiff or defendant resides or has his principal place of business or is doing business, to recover actual damages. Proof of public interest or public injury shall not be required in any action brought under this section. The court may, in its discretion, award punitive damages and may provide such equitable relief as it deems necessary or proper.\n“(b) Persons entitled to bring an action under subsection (a) of this section may, pursuant to rules established by the judges of superior court, bring a class action on behalf of themselves and other persons similarly situated who are residents of this state or injured in this state to recover damages.\n“(c) Upon commencement of any action brought under subsection (a) of this section, the plaintiff shall mail a copy of the complaint to the attorney general and, upon entry of any judgment or decree in the action, shall mail a copy of such judgment or decree to the attorney general.\n“(d) In any action brought by a person under this section, the court may award, to the plaintiff, in addition to the relief provided in this section, costs and reasonable attorneys’ fees based on the work reasonably performed by an attorney and not on the amount of recovery. In a class action in which there is no monetary recovery, but other relief is granted on behalf of a class, the court may award, to the plaintiff, in addition to other relief provided in this section, costs and reasonable attorneys’ fees. In any action brought under this section, the court may, in its discretion, order, in addition to damages or in lieu of damages, injunctive or other equitable relief.\n“(e) Any final order issued by the department of consumer protection and any permanent injunction, final judgment or final order of the court made under section 42-110d, 42-110m, 42-110o or 42-110p shall be prima facie evidence in an action brought under this section that the respondent or defendant used or employed a method, act or practice prohibited by section 42-110b, provided this section shall not apply to consent orders or judgments entered before any testimony has been taken.\n“(f) An action under this section may not be brought more than three years after the occurrence of a violation of this chapter.”\n\n", "ocr": true, "opinion_id": 7854072 } ]

"1991-09-17"

[ "25 Conn. App. 741" ]

[ { "author_str": "Dupont", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nDupont, C. J.\nThe respondent appeals from the judgment that terminated her parental rights with respect to her minor son. The respondent contends (1) that the federal and state constitutions1 imposed a duty on the trial court to hold a hearing to determine if she was competent to understand the termination proceeding and to assist counsel effectively and (2) that she was ineffectively represented by counsel. The respondent does not challenge the merits of the court’s judgment.2 We affirm the trial court’s decision to terminate her parental rights.\nAlexander Y. was born to the respondent on July 14, 1985. Shortly thereafter, the department of children and youth services (DCYS) received a referral from Yale-New Haven Hospital concerning the respondent’s ability to care for her child. Since that time, Alexander has been in and out of foster care and has been under the supervision of DCYS. Since 1988, he has resided in the same foster home. DCYS filed a petition to terminate the respondent’s parental rights, and, after a three day trial, the court rendered judgment terminating the respondent’s parental rights.\n*743It is clear from the record that the respondent’s mental status was a significant issue in the case. Her mental stability as it affected her ability to raise her child permeated the substantive issues. The issue of her competency to understand the proceedings and to assist her counsel in those proceedings, however, is raised for the first time on appeal. The respondent did not, therefore, preserve this claim for review. She can prevail on it only if “all of the following conditions have been 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 [respondent] 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.” (Emphasis in original.) State v. Golding, 213 Conn. 233, 239-240, 567 A.2d 823 (1989).\nHere, there is an adequate record and a claim of constitutional magnitude implicating a fundamental right. The right of a parent to raise his or her children has been recognized as a basic constitutional right. Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972); Lehrer v. Davis, 214 Conn. 232, 236, 571 A.2d 691 (1990); In re Juvenile Appeal (Docket No. 10155), 187 Conn. 431, 435, 446 A.2d 808 (1982); State v. Anonymous, 179 Conn. 155, 162-63, 425 A.2d 939 (1979). Thus, the first two Golding conditions are met, and we next consider whether a constitutional violation clearly exists and whether the respondent was clearly deprived of her right to a fair trial.\nWhether a constitutional violation exists depends on whether procedural due process was accorded to the respondent. The respondent asks us to conclude that the liberty interest of a parent in his or her parental rights is sufficiently similar to the liberty interest of *744a criminal defendant, thereby requiring, as a matter of procedural due process, a hearing to decide if a parent is competent to understand the proceedings and to assist counsel. The respondent claims, in effect, that the procedural protection set forth in General Statutes § 45a-708 (a)3 is insufficient to protect her rights and seeks a procedure similar to that accorded to defendants in criminal cases. See General Statutes § 54-56d. The respondent claims that the same consequences should ensue if she were to be found incompetent as are provided in § 54-56d, including a stay of the termination proceeding.\nIn re Juvenile Appeal (Docket No. 10155), supra, relies on Mathews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976), to determine the elements to be considered and weighed in deciding what is required by due process in a termination of parental rights proceeding. The three elements to be considered, as set forth in Mathews, are “[f]irst, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” Mathews v. Eldridge, supra, 335. Phrased differently, we must determine if the private interest of the respondent in the companionship, love and control of her child is at risk of being erroneously *745terminated because of the lack of an adequate procedural safeguard that could be provided for her without disregarding the state’s interest in the well-being of the child and the fiscal and administrative burden on the state.\nThe parent’s desire for and right to “the companionship, care, custody, and management of his or her children” is a fundamental interest that “undeniably warrants deference and, absent a powerful countervailing interest, protection.” Stanley v. Illinois, supra; see also In re Juvenile Appeal (Docket No. 10155), supra. Thus, the first factor of Mathews, namely, the respondent’s interest in retaining her parental rights, is present. That interest is basic and private, and subject to complete destruction by state action.\nThe second factor of Mathews to be considered is whether the failure to hold a hearing to determine the respondent’s ability to comprehend the proceedings and to assist counsel creates a risk of an erroneous deprivation of her parental interest. The respondent’s position is that the trial court should have ordered, or her counsel should have sought, a hearing to determine her competency. The risk of an erroneous deprivation is to be tested by the record. See In re Juvenile Appeal (Docket No. 10155), supra, 436-37.\nThe record suggests that the respondent understood the nature and gravity of the hearing. In the course of her dealings with DCYS, she had six court-appointed counsel, none of whom raised any question as to her mental competency. Not one of them, either in prior cases or in this one, questioned her capability of assisting in the preparation of her case. She participated in the termination proceeding by testifying about her relationship with her child. Finally, in response to a direct question by the court, she indicated that she understood that the proceeding concerned the termination of her *746rights to her child. Although the respondent was not present during the entire three consecutive days of the termination proceeding, she was aware of its time and place. We see no evidence in the record that would compel the trial court to question the respondent’s competency.4\nThe respondent requests the same due process rights in parental termination proceedings as are granted in criminal trials. Different interests, however, are involved in civil cases than in criminal cases. The legislature has recognized this distinction by enacting different procedures to protect the rights of incompetent parties in civil and criminal actions. Criminal trials are governed by § 54-56d, which provides that “[a] defendant shall not be tried, convicted or sentenced while he is not competent” and requires the moving party to prove by clear and convincing evidence that the defendant is not competent. General Statutes § 45a-132 controls most civil cases and provides that a judge may appoint a guardian ad litem for any minor or incompetent.5\nA criminal case and most civil cases are two-sided, whereas termination of parental rights cases are three-*747sided, involving the child, the parent and the state. The legislature has recognized this distinction and has specifically provided for the appointment of a guardian ad litem to represent the interests of an incompetent parent in such cases. General Statutes § 45a-708 (a). Section 45a-708 (a) provides for a different treatment of respondents in a parental termination action than is provided by other statutes for other types of parties.\nThe respondent here was at all times represented by appointed counsel, and she has not claimed that the trial court improperly failed to appoint a separate guardian ad litem.6 The legislature has provided a mechanism for protecting allegedly incompetent parents in termination of parental rights proceedings. Here, the record does not indicate that there was a need to use that mechanism. The risk of an erroneous deprivation of the respondent’s parental rights because of a lack of a competency hearing, therefore, was minimal, if the risk existed at all.\nThe third balancing factor of the Mathews test concerns the government’s interest as parens patriae in *748the termination of parental rights. “ ‘[T]he ultimate standard underlying the whole statutory scheme regulating child welfare is the “best interest of the child.” In re Juvenile Appeal (Docket No. 10155), supra, 439. Because of the psychological effects of prolonged termination proceedings on young children, time is of the essence in custody cases. Id. On the facts of this case, we conclude that it is not necessary to impose on the state the fiscal and administrative burden of a competency hearing similar to that provided in criminal cases by § 54-56d.7\nAs applied to the facts of this case, the balancing test of Mathews does not support the respondent’s claim that a constitutional violation clearly existed and clearly deprived her of her right to a fair trial. The third prong of Golding is, therefore, unsatisfied.\nA parent’s right to the effective assistance of counsel in termination of parental rights cases derives from State v. Anonymous, supra.8 Under that standard, an appellant must prove that both counsel’s trial performance fell below the range of competence of ordinary skill and the outcome of the termination of parental rights proceeding would have been different had the representation been competent. The respondent’s claims of ineffectiveness are hydra-like. She claims var*749ious errors, such as ineffective cross-examination, failure to object to questions, and failure to move to strike testimony. These claims are baseless.\nThe record reveals overwhelming admissible expert and documentary evidence that supported the trial court’s judgment on all three grounds alleged by the petitioner. In view of that evidence, we believe that the respondent has failed to meet her burden of proving that any alleged inadequacy affected the outcome of the termination proceedings.\nThe respondent’s claim that the failure to seek an evidentiary hearing regarding her competency to comprehend the proceedings and assist counsel effectively was tantamount to ineffective assistance of counsel falls with her procedural due process claim.\nThe respondent also argues that counsel was incompetent by allowing the trial to proceed when she was not present. In the case of In re Jonathan P., 23 Conn. App. 207, 213-14, 579 A.2d 587 (1990), we held that where the parent was precluded from participating in part of a hearing because he was imprisoned, it was plain error for the court to have proceeded without the parent’s presence. This case, however, is inapposite. It is apparent from the record that the respondent was present for part of the proceedings, had full knowledge of the hearing dates, and was able to come to court. Under these circumstances, we believe that the respondent waived her right to be present at trial. See State v. Durkin, 219 Conn. 629, 595 A.2d 826 (1991); In re Juvenile Appeal (Docket No. 10155), supra, 440-41.\nThe judgment is affirmed.\nIn this opinion Norcott, J., concurred.\n\n “The due process provision of the Connecticut constitution has the same meaning and imposes similar limitations as that of the federal constitution.” State v. Anonymous, 179 Conn. 155, 162 n.4, 425 A.2d 939 (1979).\n\n\n The petition was based on three grounds of General Statutes § 17a-112 (b). The trial court concluded that the state had proved all three grounds by clear and convincing evidence.\n\n\n General Statutes § 45a-708 (a) provides: “When, with respect to any petition filed under section 17a-112, section 45a-715 or section 45a-716, it appears that either parent of the child is a minor or incompetent, the court shall appoint a guardian ad litem for such parent. The guardian ad litem shall be an attorney-at-law authorized to practice law in Connecticut or any duly authorized officer of a child-placing agency if the agency is not the petitioner.” (Emphasis added.)\n\n\n The respondent points to a finding that she was incompetent to stand trial for a period of two months in a related criminal proceeding as evidence of her possible mental incompetence to stand trial. That finding, however, was made six months after the present proceeding, was obviously not known to the trial court, and is not evidence of her mental condition at the time of trial.\n\n\n General Statutes § 45a-132 provides in pertinent part: “(a) In any proceeding before a court of probate or the superior court . . . the judge or magistrate may appoint a guardian ad litem for any minor or incompetent, undetermined or unborn person ... if it appears to the judge or magistrate that one or more persons as individuals . . . have or may have an interest in the proceedings, and that one or more of them are minors, incompetent persons ... at the time of the proceeding.\n“(b) The appointment shall not be mandatory, but shall be at the discretion of the judge or magistrate.” (Emphasis added.)\n\n\n In the event that a parent is represented by a guardian ad litem, the duties of an appointed guardian are to take all necessary steps to promote and protect the ward’s interest in the litigation. In Interest of JIW, 695 S.W.2d 513, 518 (Mo. App. 1985).\nSimilarly, the role of counsel for a parent is to explain fully the nature of the proceedings to the client, determine the client’s informed position, negotiate and advocate for necessary and appropriate services, and oppose the petition in accordance with a determination of the client’s position.\nWe need not decide whether a parent whose rights are subject to termination might require both appointed counsel and a guardian ad litem because of a potential conflict of interests. See In Interest of JIW, supra (holding that appointing both counsel and a guardian ad litem would be duplicative); but see South Carolina Department of Social Services v. Powell, 278 S.C. 79, 292 S.E.2d 299 (1982); South Carolina Department of Social Services v. McDow, 276 S.C. 509, 280 S.E.2d 208 (1981) (requiring the appointment of both counsel and a guardian ad litem). We also need not decide whether General Statutes § 45a-708 (a) would allow one person to fulfill the function of both counsel and guardian ad litem.\n\n\n Although General Statutes § 45a-708 (a) does not provide for any particular procedure for the initiation of a competency hearing, there may be parental termination cases where due process would require a trial court to hold a competency hearing on its own motion. See Statewide Grievance Committee v. Rozbicki, 219 Conn. 473, 484, 595 A.2d 819 (1991).\n\n\n Ordinarily, the right to effective assistance of counsel is a right accorded to defendants in criminal cases, as opposed to civil cases. “Where, however . . . a statute . . . or practice book rule . . . mandates the assistance of counsel, it is implicit that this means competent counsel. Because of the substantial interests involved, a parent in a termination of parental rights hearing has the right not only to counsel but to the effective assistance of counsel.” State v. Anonymous, 179 Conn. 155, 160, 425 A.2d 939 (1979).\n\n", "ocr": true, "opinion_id": 7854339 }, { "author_str": "Heiman", "per_curiam": false, "type": "030concurrence", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nHeiman, J.,\nconcurring. While I agree with the judgment affirming the trial court, I do not agree with all *750of the legal analysis or legal conclusions contained in the majority’s opinion, and, thus, I write separately to express my departure from the reasoning of the court and my reasons therefor.\nIn the first instance, parents have a significant, constitutionally protected, right to raise their children without the coercive interference of the state. Lehrer v. Davis, 214 Conn. 232, 237, 571 A.2d 691 (1990). This does not mean, however, that the family is beyond state regulation. McGaffin v. Roberts, 193 Conn. 393, 401, 479 A.2d 176 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1747, 84 L. Ed. 2d 813 (1985). What it does mean is that if the state wants to exercise its duty to ensure the welfare of the child, it must afford procedural due process to all of the parties. Lehrer v. Davis, supra.\nI do not agree with the majority when it opines that General Statutes § 45a-708 (a) provides, in itself, adequate due process protection in a case where the record reflects that a parent, whose parental rights are being terminated, is incompetent at the time of trial to understand the nature and import of the proceeding and to assist counsel in protecting his or her interests. In such a case, due process demands that the trial court act promptly to determine the competency of the respondent. Until such a determination is made, the scale that permits state action has not yet tipped to such a degree as to permit termination. The risk of erroneous deprivation of parental rights under such circumstances is too great; see Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976); to satisfy the requirement of procedural due process. Lehrer v. Davis, supra. While the requirement of due process does not mandate any particular procedure, such as an adherence to the format of General Statutes § 54-56, it does require that certain safeguards exist in what*751ever procedural form is afforded. Statewide Grievance Committee v. Rozbicki, 219 Conn. 473, 484, 595 A.2d 819 (1991).\nThe fact that protection of procedural due process rights may involve some fiscal or administrative burden is not an excuse to refuse such protection where, as here, no other adequate protection exists. The extent of the process that is due “depends upon the intrusiveness of the competing state concern.” Lehrer v. Davis, supra, 237-38. Here, the result would be the total elimination of the parent-child relationship, the most serious and intrusive action that is possible to contemplate in this area of the law. See Lassiter v. Department of Social Services, 452 U.S. 18, 27, 101 S. Ct. 2153, 68 L. Ed. 2d 640 (1981). Thus, in an appropriate case, due process demands that the court act to determine the competency of any party to understand the nature of the proceedings and to assist counsel. See Mathews v. Eldridge, supra. In this case, the record does not support the claim that such action was necessary on the part of the trial court.\nAccordingly, while I concur in the result, I do not endorse all of the legal analysis by which the majority reaches its conclusion.\n", "ocr": true, "opinion_id": 7854340 } ]

"1992-05-19"

[ "27 Conn. App. 596" ]

[ { "author_str": "Dupont", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nDupont, C. J.\nThe defendant appeals from the judgment of conviction, rendered after a jury trial, of one count of conspiracy to sell cocaine and to possess cocaine with intent to sell by a person who is not drug-dependent in violation of General Statutes §§ 53a-48 and 21a-278 (b).1 The sole issue we must resolve is whether General Statutes §§ 54-41p (b)2 and 54-41b3 allow the use of lawfully obtained wiretap evidence in *598a prosecution for a violation of § 21a-278 (b). The trial court denied the defendant's motion to suppress such evidence pursuant to General Statutes § 54-41m.4\nGeneral Statutes § 54-41b provides that an application may be made to a panel of judges to obtain authorization for the interception of a wire communication when “such interception may provide evidence of the commission of offenses involving . . . violations of section 21a-277 . . . .”5\n6The resolution of the issue before us depends, therefore, on whether a violation of General Statutes § 2 la-278 (b) is an offense “involving” the violation of General Statutes § 21a-277. We *599conclude that the lawfully obtained wiretap evidence6 in this case was properly admitted into evidence against the defendant in a prosecution under § 21a-278 (b), and, therefore, affirm the judgment of the trial court.\nCases have strictly construed our wiretap statutes because to do otherwise would countenance an intrusion into an individual’s privacy and is “inherently greater than a typical particularized search of one’s home or person which consists of essentially one overt intrusion. A wiretap necessarily is a continuing covert intrusion.” State v. Ross, 194 Conn. 447, 458, 481 A.2d 730 (1984); State v. Formica, 3 Conn. App. 477, 481, 489 A.2d 1060, cert. denied, 196 Conn. 806, 494 A.2d 903 (1985).\nYet, “[a] statute, even one which has been held to be subject to strict construction . . . must be read with common sense, so as to accomplish a reasonable result and not to thwart its purpose. ... It cannot be denied that one of the principal purposes of our statutory scheme is to permit wiretaps where there is probable cause to believe that an individual is illegally selling a drug such as cocaine.” (Citations omitted.) State v. Ralston, 7 Conn. App. 660, 682, 510 A.2d 1346 (1986).\nThere is a close relationship between §§ 21a-277 and 21a-278 (b). They differ, on the facts of this case, only in the status of the offender and in the punishment for the offense. Section 21a-278 (b) applies to persons who are not drug-dependent whereas § 21a-277 applies to persons who are. The absence of drug dependency, however, is not an element of an offense committed in violation of § 21a-278 (b). State v. Hart, 221 Conn. 595, 608, 605 A.2d 1366 (1992). When the drug involved *600is cocaine, the two statutes contain the same elements. The punishment for a violation of § 21a-278 (b), however, depends on whether an offender can sustain a burden of proving her or his drug dependency by a fair preponderance of the evidence in order to obtain an exemption from liability as provided in § 2la-269. Id.\nBecause both crimes, on the facts of this case, contain the same elements that must be proved by the state beyond a reasonable doubt, it is reasonable to conclude that the crimes should be treated similarly in the context of the wiretap act. It is not reasonable to require a suppression of evidence in the prosecution of persons who are not drug-dependent, the more serious crime in terms of punishment, and to allow the very same evidence to be used in the prosecution of drug dependent persons. Such a result would not provide any greater privacy protection to individuals since lawfully seized wiretap evidence of illegal drug activity can always be used to support a conviction under § 21a-277.\nThe gravamen of the defendant’s claim that the wiretap evidence must be suppressed centers about the interpretation of the word “involving” as used in § 54-41b. To involve means to “include” or to “contain.” American Heritage Dictionary (1981). Since a violation of § 21a-278 (b) predicated on a sale of cocaine or possession of cocaine with intent to sell contains the same elements as does a violation of § 21a-277 when predicated on the sale of cocaine or possession of cocaine with intent to sell, a violation of one necessarily “includes” or “contains” a violation of the other.7 *601The plain language of §§ 54-41p (b) and 54-41b, therefore, makes clear that the use of wiretap evidence is not limited to drug prosecutions under § 21a-277.\nIt would undermine the plain language of General Statutes §§ 54-41b and 54-41p (b), as well as their purpose, namely, to afford the police a means to investigate narcotic offenses, to hold that evidence obtained through a lawful wiretap is inadmissible in a narcotics prosecution under § 21a-278 (b). We conclude that § 21a-278 (b) is a crime involving a violation of § 21a-277 for purposes of §§ 54-41b and 54-41p (b).\nThe judgment is affirmed.\nIn this opinion the other judges concurred.\n\n General Statutes § 21a-278 (b) provides: “Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any narcotic substance, hallucinogenic substance other than marihuana, amphetamine-type substance, or one kilogram or more of a cannabis-type substance except as authorized in this chapter, and who is not at the time of such action a drug-dependent person, for a first offense shall be imprisoned not less than five years nor more than twenty years; and for each subsequent offense shall be imprisoned not less than ten years nor more than twenty-five years. The execution of the mandatory minimum sentence imposed by the provisions of this subsection shall not be suspended except the court may suspend the execution of such mandatory minimum sentence if at the time of the commission of the offense (1) such person was under the age of eighteen years or, (2) such person’s mental capacity was significantly impaired but not so impaired as to constitute a defense to prosecution.”\n\n\n General Statutes § 54-41p (b) provides: “Any person who has received, by any means authorized by this chapter, any information concerning a wire communication, or evidence derived therefrom, intercepted in accordance with the provisions of this chapter may disclose the contents of that communication or such derivative evidence insofar as it relates to the crimes set forth in section 54-41b while giving testimony under oath or affirmation in any criminal proceeding before any court or grand jury.”\n\n\n General Statutes § 54-41b provides: “The chief state’s attorney or the state’s attorney for the judicial district in which the interception is to be conducted may make application to a panel of judges for an order authorizing the interception of any wire communication by investigative officers having responsibility for the investigation of offenses as to which the application is made when such interception may provide evidence of the commission of offenses involving gambling, bribery, violations of section 53-395, violations of section 21a-277 or felonious crimes of violence.”\n\n\n General Statutes § 54-41m provides that the contents of any intercepted wire communication, or evidence derived therefrom, may be suppressed on the ground that the communication was unlawfully intercepted, the order authorizing it was insufficient, or the interception did not conform with the order of authorization or approval.\n\n\n General Statutes § 21a-277 provides in pertinent part: “(a) Any person who manufactures, distributes, sells, prescribes, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any controlled substance which is a hallucinogenic substance other than marihuana, or a narcotic substance, except as authorized in this chapter, for a first offense, shall be imprisoned not more than fifteen years and may be fined not more than fifty thousand dollars or be both fined and imprisoned; and for a second offense shall be imprisoned not more than thirty years and may be fined not more than one hundred thousand dollars, or be both fined and imprisoned; and for each subsequent offense, shall be imprisoned not more than thirty years and may be fined not more than two hundred fifty thousand dollars, or be both fined and imprisoned.\n“(b) Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with intent to sell or dispense, possesses with intent to sell or dispense, offers, gives or administers to another person any controlled substance, except a narcotic substance, or a hallucinogenic substance other than marihuana, except as authorized in this chapter, may, for the first offense, be fined not more than twenty-five thousand dollars or be imprisoned not more than seven years or be both fined and imprisoned; and, for each subsequent offense, may be fined not more than one hundred thousand dollars or be imprisoned not more than fifteen years, or be both fined and imprisoned. ...”\n\n\n The defendant does not claim that any communications were unlawfully intercepted, or that the order of the panel issuing the order was insufficient or that the interception was not made in conformity with the order.\n\n\n It is not certain whether State v. Hart, 221 Conn. 595, 607-11, 605 A.2d 1366 (1992), disturbs the holding of State v. Amaral, 179 Conn. 239, 242-44, 425 A.2d 1293 (1979), that a violation of General Statutes § 21a-277 predicated on a sale of cocaine or possession of cocaine with intent to sell is a lesser included offense of a violation of General Statutes § 21a-278 (b). To the extent that the holding remains intact, the latter must be a crime “involving” the lesser included crime of § 21a-277.\n\n", "ocr": true, "opinion_id": 7854617 } ]

"1992-09-08"

[ "29 Conn. App. 43" ]

[ { "author_str": "Daly", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nDaly, J.\nThe defendant James Malloy1 appeals from the trial court’s judgment in favor of the plaintiff, rendered in accordance with the report of an attorney trial referee. The defendant claims that the trial court improperly awarded compensation to the plaintiff for legal services the plaintiff performed before becoming a member of the Connecticut bar.\nThe following facts are relevant to this appeal. The plaintiff and the defendant had known each other for several years before this transaction. The defendant knew that the plaintiff worked as a corporate attorney at their previous place of employment in Greenwich. During September, 1987, the plaintiff entered the private practice of law and maintained an office at his previous place of employment. In January, 1988, the defendant asked the plaintiff to represent the defendant’s investment group, which sought to acquire the controlling interest in a New York corporation, XI Tech, Inc. From January, 1988, until March, 1988, the plaintiff prepared legal documents and performed other services for the defendant’s investment group. During his representation of the defendant’s investment group, the plaintiff formed a Connecticut corporation to assist in acquiring the New York corporation.\nThe plaintiff instituted this action to recover attorney’s fees and costs related to his representation of the defendant’s investment group. The plaintiff initially was admitted to the practice of law in the state of New York only. On February 11, 1988, the plaintiff was *45admitted to the practice of law in the state of Connecticut. In his amended complaint, the plaintiff alleged that in his capacity as an attorney he rendered legal services for the defendant between January 20,1988, and March 14, 1988. In his answer to the complaint, the defendant raised as a special defense that he “had no relationship” with the plaintiff.\nThis matter was referred to an attorney state trial referee. The referee found that an oral agreement existed between the plaintiff and the defendant concerning the plaintiff’s representation of the defendant’s investment group. The referee rejected the defendant’s argument that an award of attorney’s fees for legal services performed before the plaintiff was admitted to practice in Connecticut violated General Statutes § 51-88. The referee reasoned that § 51-88 prohibits only an attorney not licensed to practice in Connecticut from appearing in court and does not prohibit an attorney licensed to practice in New York from engaging in interstate corporate practice involving the acquisition of a New York corporation. The plaintiff was awarded $15,535.85, representing fees and costs.\nOn June 25,1991, the defendant filed a motion to correct and objections to the acceptance of the referee’s report. The referee stated that he considered the plaintiff to be acting as a New York attorney who represented a Connecticut resident. He determined that a lawyer licensed in New York did not have to maintain an office in the state of New York in order to render legal services. The referee also found that there was no evidence indicating how much of the plaintiff’s time involved creating the Connecticut corporation. The referee also rejected the defendant’s argument that the plaintiff’s representation before being admitted to practice in Connecticut violated § 51-88. The trial court accepted the referee’s report and rendered judgment *46in accordance with the report. The defendant appealed from this decision.\nThe defendant claims that the plaintiff was not entitled to recover attorney’s fees for the legal services he performed in Connecticut before being admitted to practice in this state. Before addressing this claim, we must determine whether it was properly preserved. The plaintiff argues that the defendant failed to plead as a special defense that § 51-88 barred recovery in this action.\nThe defendant filed a special defense claiming only that he had no relationship with the plaintiff. The defendant raised the issue concerning the violation of § 51-88 at trial during his oral motion for dismissal at the end of the plaintiff’s case-in-chief. The defendant further pursued this claim in his motion to correct. The plaintiff never objected to the defendant’s argument concerning § 51-88. Because the plaintiff did not object to the evidence and argument related to the claimed defense that § 51-88 prohibited recovery of attorney’s fees, the plaintiff has waived his right to raise a claim of “pleading deficiency” by the defendant. Pepe v. New Britain, 203 Conn. 281, 286, 524 A.2d 629 (1987); Carnese v. Middleton, 27 Conn. App. 530, 537, 608 A.2d 700 (1992).\nSection 51-882 prohibits the practice of law in or outside a Connecticut courtroom by a person not admitted as an attorney under the provisions of General Statutes § 51-80. Grievance Committee v. Dacey, 154 Conn. 129, 140, 222 A.2d 339 (1966), appeal dismissed, *47386 U.S. 683, 87 S. Ct. 1325, 18 L. Ed. 2d 404 (1967). In Dacey, our Supreme Court rejected the defendant’s argument “that the practice of law, out of court, is not forbidden unless carried on as a business . . . .’’Id. Here, the plaintiff was clearly engaged in the practice of law through his representation of the defendant’s investment group even though he did not appear in a Connecticut courtroom.\n“Generally, even though duly admitted in another state, an attorney may not recover compensation for legal services unless he has been admitted to practice in the jurisdiction where the services were rendered.” 7 Am. Jur. 2d 280, Attorneys at Law § 242; see Taft v. Amsel, 23 Conn. Sup. 225, 227, 180 A.2d 756 (1960). In Taft, the plaintiff, an attorney licensed in New York sought to recover compensation for legal services performed on behalf of the defendants who were residents of Connecticut. The legal services were primarily rendered in Connecticut and involved the creation of an interstate transportation business. The trial court in Taft concluded that the plaintiff was not entitled to any recovery of compensation for legal services. The Taft court concluded “that no one is entitled to recover compensation for services as an attorney at law unless he has been duly admitted to practice before the court, or within the jurisdiction in which the services were rendered, and is an attorney in good standing at the time. . . . And the same rule applies to a claim based on quantum meruit.” Taft v. Amsel, supra, 227-28. Although we are not bound by the Taft decision; see Rodia v. Tesco Corporation, 11 Conn. App. 391, 397, 527 A.2d 721 (1987); we agree with its reasoning and *48adopt it. See State v. Johnson, 28 Conn. App. 708, 717, 613 A.2d 1344 (1992).\nHere, the plaintiff practiced law in Connecticut, preparing documents for the acquisition of a New York corporation by the defendant’s investment group. The plaintiff performed some services before he was admitted to practice in Connecticut on February 11, 1988. We conclude that § 51-88 prohibited the plaintiff from receiving compensation for legal services performed before being admitted to practice in Connecticut.\nThe trial court’s award of attorney’s fees to the plaintiff for services performed before being admitted to practice in Connecticut was not legally correct. Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221, 435 A.2d 24 (1980).\nThe judgment is reversed and the case is remanded for further proceedings to determine the amount of compensation payable for legal services performed in Connecticut after the plaintiff’s admission to practice in Connecticut.\nIn this opinion the other judges concurred.\n\n On December 18, 1990, the defendants S.E.I. Corporation and Peter J. Shippole were defaulted and are not involved in this appeal. We refer in this opinion to James Malloy as the defendant.\n\n\n General Statutes § 51-88 (a) provides: “A person who has not been admitted as an attorney under the provisions of section 51-80 shall not: (1) Practice law or appear as an attomey-at-law for another, in any court of record in this state, (2) make it a business to practice law, or appear as an attomeyat-law for another in any such court, (3) make it a business to solicit employment for an attomey-at-law, (4) hold himself out to the public as being entitled to practice law, (5) assume to be an attomey-at-law, (6) assume, *47use or advertise the title of lawyer, attorney and counselor-at-law, attorney-at-law, counselor-at-law, attorney, counselor, attorney and counselor, or an equivalent term, in such manner as to convey the impression that he is a legal practitioner of law, or (7) advertise that he, either alone or with others, owns, conducts or maintains a law office, or office or place of business of any kind for the practice of law.”\n\n", "ocr": true, "opinion_id": 7854808 } ]

"1993-01-05"

[ "29 Conn. App. 927" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nPer Curiam.\nThe judgment is affirmed.\n", "ocr": true, "opinion_id": 7854957 } ]

"1993-02-16"

[ "30 Conn. App. 346" ]

[ { "author_str": "Connell", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nO’Connell, J.\nThis matter is now before us on remand from the Supreme Court. We previously considered it in State v. Carey, 25 Conn. App. 421, 594 A.2d 1011 (1991), in which we did not reach the merits of the appeal but remanded it to the trial court for dismissal of the probation revocation proceedings on jurisdictional grounds. The Supreme Court granted certification, reversed our judgment and remanded the case to this court for consideration of the merits of the defendant’s appellate claims. State v. Carey, 222 Conn. 299, 610 A.2d 1147 (1992).\nThis is the defendant’s appeal from the revocation of his probation. He claims that the evidence presented at his revocation hearing (1) was insufficient as a matter of law, (2) violated his constitutional right to due process of law and (3) violated his right to cross-examine witnesses. We reverse the judgment of the trial court.\nThe following facts are necessary to resolve this appeal. On June 13,1988, the defendant pleaded guilty to assault in the third degree in violation of General *348Statutes § 53a-61. He received a suspended sentence and was placed on probation for one year. His probation was subject to a special condition that he have no contact with the victim of the assault. During the probationary period, the defendant was arrested twice for allegedly assaulting the victim. Following the first arrest, the defendant’s probation officer, Sharon Rome, filed a motion for revocation of probation that cited as the reasons a new conviction and a violation of the special condition that the defendant have no contact with the victim.1 Following the second arrest, Rome filed a substitute motion, citing as the reason the defendant’s “subsequent arrests.”\nAt the commencement of the revocation hearing, the defendant requested, “in the nature of an oral bill of particulars,”2 that he be informed of the specific manner in which he violated his probation. The state’s attorney responded orally that the ground for revocation was the violation of the “specific conditions of probation . . . that he keep away from the [victim]. The subsequent arrests, all three of them, were specific arrests that have to do with the victim and the person . . . whom he was ordered to stay away from and not have any contact.” Prior to closing arguments, the state again claimed that it “has sought violation of probation based on the special condition of probation that [the defendant] have no contact with the victim in this case.”\nRome was the only witness who testified at the hearing. Through Rome, the state introduced two police incident reports relating to the defendant’s arrests. Defense counsel repeatedly objected to the admission of the reports on the basis that they were hearsay. Although Rome testified that she had not personally *349observed the defendant’s conduct, she narrated the allegations set forth in the reports. She explained that the bases for initiating the revocation proceeding were the police reports and a telephone conversation with the victim, whom she had never met. The court sustained the defendant’s hearsay objection to the telephone call and, therefore, did not permit Rome to testify concerning the contents of her conversation with the victim.\nNo further evidence was offered by either party. The court found that the defendant had violated his probation and reinstated the original sentence. As expressed in its memorandum of decision, the court appeared to have found that the defendant violated not only the no contact provision, but also the provision that he not violate any criminal law of the United States, notwithstanding that he was not charged with the latter as a probation violation. Because a defendant cannot be found in violation of probation on grounds other than those with which he is charged, we will disregard the second finding.\nIn his first claim, the defendant contends that the evidence produced at the hearing was insufficient as a matter of law because it consisted entirely of unsupported and unreliable hearsay evidence. We agree that the evidence was insufficient to establish a probation violation.\nA subsequent arrest, by itself, is not a sufficient basis on which to find a violation of probation. Although there need not be proof of unlawful conduct sufficient to sustain a criminal conviction; Roberson v. Connecticut, 501 F.2d 305, 308 (2d Cir. 1974); there must be proof that the “defendant’s conduct constituted an act sufficient to support a revocation of probation . . . .” State v. Smith, 18 Conn. App. 368, 370 n.1, 558 A.2d 257 (1989); Payne v. Robinson, 10 Conn. App. 395, 402-403, 523 *350A.2d 917 (1987), aff'd, 207 Conn. 565, 541 A.2d 504, cert. denied, 488 U.S. 898, 109 S. Ct. 242, 102 L. Ed. 2d 230 (1988).\nIn the present case, because the revocation was not based on a subsequent conviction, the issue is whether the state presented sufficient evidence to show that the defendant’s conduct, leading to the arrests, constituted an act sufficient to support the revocation. The standard of proof to be applied by the trial court in deciding whether a probationer has violated a condition of probation is the reasonable satisfaction standard, wherein the trial court must have a rational belief that the “evidence is adequate or sufficient to prove a violation.” State v. Davis, 29 Conn. App. 801, 811, 618 A.2d 557 (1993). “[0]ur review is limited to reviewing whether such a finding was clearly erroneous.” Id., 805.\nA probation revocation hearing is not a stage of a criminal prosecution; Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973); State v. Wright, 24 Conn. App. 575, 580, 590 A.2d 486 (1991); but is a discrete statutory procedure to which many of the substantive and procedural rules of criminal law do not apply. Payne v. Robinson, supra, 207 Conn. 571.\nGeneral Statutes § 53a-32 (b) provides in pertinent part: “No such revocation [of probation] shall be ordered, except upon consideration of the whole record and unless [a] violation is established by reliable and probative evidence.” The only evidence offered by the state, over the defendant’s repeated hearsay objections, was the two police reports. These reports were admitted through the probation officer who had no independent knowledge of the material contained therein. She knew only that they were police reports pertaining to the defendant.\nThese reports were undisputably hearsay. In its brief, the state argues that the police reports qualified as busi*351ness records under General Statutes § 52-1803 and were therefore admissible. This contention is invalid for two reasons. First, the reports were not offered or admitted as business records. An appellant is entitled to review of claims on appeal only on the basis that that evidence was admitted in the trial court. See State v. Braman, 191 Conn. 670, 684-85, 469 A.2d 760 (1983). Second, the necessary foundation for admission was not provided. The state offered no testimony that (1) the police reports were made in the regular course of police business, (2) it was the regular course of police business to make the reports and (3) the reports were made at the time of the arrest or within a reasonable time thereafter. See Bell Food Services, Inc. v. Sherbacow, 217 Conn. 476, 485, 586 A.2d 1157 (1991). The probation officer did not, and in all probability could not, testify to these requirements. The reports, therefore, are hearsay and do not qualify for admission as evidence under any established exception to the hearsay rule.\nThe state relies on State v. White, 169 Conn. 223, 239-40, 363 A.2d 143, cert. denied, 423 U.S. 1025, 96 S. Ct. 469, 46 L. Ed. 2d 399 (1975), for the proposition that hearsay evidence is admissible in probation violation proceedings. The White court recognized that “General Statutes § 53a-32 apparently contemplates use of hearsay testimony ... so long as it is not unsupported and is reliable, as the evidence was here.” (Emphasis added.) Id. The final five words of this quotation, however, are significant and were *352omitted in the state’s quotation from the White decision. It is those words that distinguish White from the present case.\nThe statement in White was dicta because the issue before that court was the admissibility of hearsay evidence at a preliminary probable cause hearing held within the probation department.4 The White court dicta, however, implied that its conclusions for the preliminary hearing would apply to the final hearing held in court. White is the only Connecticut case discussing preliminary probation violation hearings. We have since determined that such preliminary hearings are not required under our law. State v. Baxter, 19 Conn. App. 304, 317-19, 563 A.2d 721 (1989). By judicial gloss, however, the White statement has become the Connecticut law on hearsay admissibility in probation revocation hearings held in court. See Payne v. Robinson, supra, 207 Conn. 574; State v. Baxter, supra, 320.\nCareful examination of White, however, discloses that it is limited and is not authority for admitting all hearsay evidence in all probation violation cases. The White court expressly “contemplate[d] use of hearsay testimony ... so long as it is not unsupported and is reliable, as the evidence was here.”5 (Emphasis added.) State v. White, supra.\nOur analysis begins with a comparison of the White case with the present case. The alleged violation in White was the defendant’s departure from a residential drug rehabilitation program in violation of a special condition of probation that he remain there until *353released by its officials. At the preliminary hearing, the defendant’s probation officer, who had prepared the original presentence report, testified that he was familiar with the condition of the defendant’s sentence and that he was informed by officials of the drug rehabilitation program that the defendant left without permission. In his testimony, he referred to a letter from the resident director of the program, confirming the defendant’s unauthorized departure. Reference to this letter constituted the hearsay. In addition to the probation officer’s testimony, department records were also referred to at the hearing. Moreover, it was undisputed that the defendant was apprehended on an arrest warrant away from the rehabilitation facility. Upon reviewing the evidence, the hearing officer determined that there was probable cause that the defendant had violated the terms of his probation.\nThe record does not include a transcript of the testimony at the probable cause hearing. It includes only a brief report from the probation department that referred to hearsay material from the drug rehabilitation program.6 It is not possible to determine the extent of other evidence that may have been received to support this claimed hearsay at the preliminary probable cause hearing. We must infer, however, that there was other evidence because White held that hearsay is admissible on the condition that it is supported by other evidence in the case.7\n*354This contrasts with the present case in which the sole witness, the probation officer, testified that the basis for initiating the revocation proceedings was the two police reports. She had never met the victim, would not have been able to recognize her, had never seen the defendant in the presence of the victim and had no basis whatsoever upon which to judge the reliability or accuracy of the police reports. She conceded that she had no knowledge of the events and her testimony was limited to her having read the police reports. The trial court then, on the basis of only the probation officer’s hearsay testimony, and with no independent supporting evidence, admitted the two police reports into evidence and found the defendant in violation of probation.* ***8\nPursuant to White, hearsay testimony is admissible only if it is supported by other evidence. Hearsay evidence cannot be the basis of probation revocation if it is wholly unsupported by corroborative evidence, as it was here. If, for example, the probation officer had been competent to testify from personal knowledge, it would have been a question of the trial court’s discretion as to whether there was sufficient support to allow the hearsay evidence.\nGeneral Statutes § 53a-32 was passed as part of No. 828 of the 1969 Public Acts, which created the Connecticut penal code. It is readily apparent from the commentary by the commission appointed to revise the criminal statutes and to adopt the penal code that *355§ 53a-32 was carefully drafted so as to forestall the possibility of basing probation violations on unsupported hearsay. The commentators noted that “[bjecause the defendant’s continued freedom is likely to be at stake, and because the decision as to the violation may turn on conflicting sets of facts, the right to counsel, to cross-examine witnesses and to present evidence (which rights were often granted in practice anyway) are made clear. The language limiting revocation orders to those supported by ‘the whole record’ and ‘by reliable and probative evidence’ is an attempt to reach a middle ground between the requirement of a full trial-type hearing and allowing revocation simply upon what may be unsupported hearsay information in the probation officer’s report.” (Emphasis added.) Commission to Revise the Criminal Statutes, Penal Code Comments, Connecticut General Statutes (1969), pp. 16-17.\nThe trial court acknowledged that the two hearsay police reports were the only evidence before it and the state agreed.9 In view of the fact that the police reports were wholly unsupported hearsay, they should not have been admitted into evidence. Because the state conceded that its only evidence was hearsay and we have concluded as a matter of law that it should not have been admitted, there was no evidence to support a probation violation finding. Accordingly, the trial court could not have been reasonably satisfied that the defendant had violated a term of his probation and, therefore, its finding of a violation is clearly erroneous. When the evidence adduced at a probation revocation hearing is insufficient, the defendant is entitled to a judgment of acquittal. Payne v. Robinson, supra, 10 Conn. App.\n*356We do not reach the defendant’s other claims.\nThe judgment is reversed and the case is remanded with direction to render judgment denying the motion for probation revocation.\nIn this opinion the other judges concurred.\n\n There does not appear to have been a new conviction.\n\n\n We know of no authority for an oral bill of particulars under these circumstances. See Practice Book §§ 812, 830 through 833.\n\n\n General Statutes § 52-180 (a) provides: “Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible as evidence of the act, transaction, occurrence or event, if the trial judge finds that it was made in the regular course of any business, and that it was the regular course of the business to make the writing or record at the time of the act, transaction, occurrence or event or within a reasonable time thereafter.”\n\n\n The specific claim in State v. White, 169 Conn. 223, 239, 363 A.2d 143 (1975), was that “the hearing officer at the preliminary hearing improperly relied on hearsay evidence in determining there was probable cause that he had violated the terms of his probation.” (Emphasis added.)\n\n\n White established a two-prong test. The evidence must be both (1) supported and (2) reliable. Because we conclude that the defendant has not satisfied the first prong, we do not reach the second.\n\n\n State v. White, A-857 Rec. & Briefs, Position 3, Record pp. 6-7, May Term, 1975.\n\n\n Despite the White dicta suggesting that a defendant could be found in violation of probation on limited but supported hearsay, the actual probation violation finding was supported by substantial direct evidence. The defendant’s probation officer, Raymond Bykowski, testified that the defendant had been assigned to a treatment facility in Waterbury as the result of a court sentence. He further recounted that he had been notified by phone and later by letter that the defendant had left the facility. Francis Petrillo, senior coordinator and drug rehabilitation counselor at the facility, also tes*354tified. After stating that he remembered the defendant as a participant in the drug rehabilitation program, Petrillo pointed him out in the courtroom. Petrillo further testified that he recalled the defendant leaving the facility without permission shortly after the defendant had arrived.\n\n\n The trial court was not consistent in its hearsay evidence rulings. It is difficult to reconcile the ruling on admissibility of the police reports with the court’s ruling sustaining a hearsay objection to a question of what the victim may have said to the probation officer in a phone conversation.\n\n\n Addressing the state’s attorney, the trial court commented, “Isn’t it true that the only actual evidence in this particular case is the two police incident reports? There is no warrant that is in evidence. The warrant was marked for ID purposes only.” The state’s attorney replied in the affirmative.\n\n", "ocr": true, "opinion_id": 7854997 } ]

"1993-04-29"

[ "31 Conn. App. 400" ]

[ { "author_str": "Foti", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nFoti, J.\nThis is an appeal from the judgment of the trial court in effect dismissing the third count of the plaintiffs’ complaint, which sought a declaratory judgment. The court denied relief under that count because it found that the named plaintiff, Denise M. Orsi, lacked standing. We reverse the judgment and grant the requested declaratory relief.\nThe complaint was brought against the commissioner of the department of children and youth services (commissioner or DCYS) following the commissioner’s proposed removal of Christopher C. from foster care. Our review of the complete record reveals the following facts and procedural history.\nChristopher was born at Bristol Hospital on February 12, 1989, to a single, fifteen year old mother, Deborah C. At birth, Christopher had respiratory problems requiring surgery. He spent his first several months of life hospitalized at the University of Connecticut Health Center. Shortly after his discharge, he was rehospitalized because his mother had over suctioned him and he was bleeding from the area of his tracheostomy. DCYS thereupon applied for an order of temporary custody, which was granted in May, 1989. At the time, Deborah C. and Stephen P., Christopher’s father, admitted to allegations of homelessness and neglect. The Superior Court at Plainville issued a protective supervision order on May 31, 1989, to ensure that Christopher would have an appropriate and safe living environment. The court granted partial custody of Christopher to Barbara R., his maternal grandmother. Attorney Stephen L. Mangan was appointed to represent Christopher at these proceedings.\nFollowing his second discharge from the hospital in June, 1989, Christopher was released to the care of Deborah C. and Barbara R., with whom Deborah then resided. Between June and September, 1989, a private *403duty nurse provided services to assist with Christopher’s routine and special medical needs. Protective supervision by DCYS ended in early December, 1989. Shortly thereafter, however, Barbara R. complained to DCYS of the violent relationship between Christopher’s parents. At the request of DCYS, “Homebuilders” (Klingberg Family Protective Services) worked with Deborah C. and Barbara R. to keep Christopher in his grandmother’s home and to prevent his placement in foster care. In early March, 1990, however, the relationship between Deborah C. and Barbara R. became strained, and Barbara forced Deborah, then pregnant with her second child by Stephen P., and thirteen month old Christopher to leave her home. Deborah C. then voluntarily placed Christopher in foster care and DCYS appointed Denise M. Orsi and her husband to be the child’s foster parents. The child made excellent developmental progress and responded well to the stability and nurturing provided by his foster family.\nOver the next months, DCYS provided an array of family services in an effort to reunite Christopher and his mother.1 Deborah C. was referred to Casey Family Services (Casey), which provided in-home services including parent education and support, clinical counseling, respite and homemaking assistance, and transportation. During this period, Christopher was allowed to visit Deborah C., who then resided with Stephen P.’s parents. At one point, however, a relative of the child complained to DCYS that Stephen P. was abusive toward Christopher during these visits. Stephen P. had also had an altercation with Deborah C. that resulted in his arrest in June, 1990.\nIn August, 1990, DCYS again sought an order of temporary custody, which was granted by the Juvenile Court on October 3,1990. The bases for the order were *404that Christopher was neglected, in that he was being permitted to live under conditions injurious to his well-being, and that he was uncared for, in that he was homeless. Concern arose over the child’s safety on unsupervised weekend visits, due to reports of family violence. In December, 1990, a DCYS social worker prepared a report recommending that Christopher be committed to the custody of DCYS for eighteen months in view of ongoing concerns involving Stephen P.’s violent temper tantrums and abusive behavior.2 A court-ordered psychological evaluation concluded that neither Deborah C. nor Stephen P. was capable of taking care of Christopher.\nIn January, 1991, the trial court found Christopher to be uncared for and neglected, and committed him to the custody and guardianship of DCYS for the statutory period of eighteen months, pursuant to General Statutes § 46b-129 (d).3 Christopher continued in the *405care of the Orsis, and Deborah C. was permitted only strictly supervised visits with him. Stephen P. was not permitted to visit the child. Shortly thereafter, Barbara R. expressed interest in providing a home for her grandson. DCYS and Casey both supported this arrangement. Denise Orsi, who objected to this plan because of her fears for the child’s safety, succeeded in having DCYS delay the removal, to allow for an easier transition for Christopher.\nIn April, 1991, Casey family counselors notified Orsi that Christopher would be removed from the foster home and placed in the care of Barbara R. Concerned that the proposed placement would not be in Christopher’s best interests, Orsi immediately filed suit in the Superior Court for the judical district of Hartford-New Britain at Hartford on May 3, 1991. Orsi’s concern centered on the fact that while his grandmother would be at work, Christopher would be cared for by Barbara R.’s brother-in-law, who lived a few *406houses away from Barbara; Deborah C., then seventeen and pregnant with her third child by Stephen P., was living in her own apartment in the brother-in-law’s house. In her complaint, Orsi alleged that there would be no way for DCYS to prevent Christopher’s parents from participating in his care, and, thus, the proposed placement was tantamount to returning the child to the environment from which he had earlier been removed.\nOrsi’s three count complaint contained an application for a writ of habeas corpus pursuant to General Statutes § 52-466 (f),4 which explicitly confers standing upon foster parents to challenge a removal action by DCYS. The complaint also sought an injunction prohibiting the removal of Christopher by DCYS until it could be determined whether the removal was in his best interests, and a declaratory ruling on the constitutionality of § 17-37-4 (c) of the Regulations of Connecticut State Agencies, which forecloses foster parents from an administrative hearing when a child is removed from their home and returned to a family member.5\n6The *407thrust of this third claim was that the challenged regulation is unconstitutional on its face because it “denies a child notice and opportunity to be heard” when DCYS determines that a back-to-family placement should be made. Orsi’s complaint indicated explicitly that she did *408not seek custody of Christopher for herself or her husband, but rather that she sought to enforce the child’s own state and federal constitutional rights against arbitrary determinations of his best interests.\n*409On May 6,1991, the trial court, Maloney, J., entered an ex parte order temporarily enjoining DCYS from removing Christopher from Or si’s care. On May 20, *4101991, the court, O’Neill, J., entered an order granting a motion by DCYS to transfer the case to “the Superior Court for Juvenile Matters at Plainville,” which had entered the original neglect finding. The trial court also granted the motion to intervene filed by attorney Stephen L. Mangan, who had represented Christopher at the neglect proceedings and had been appointed his counsel and guardian ad litem.6\nOn May 28, 1991, Orsi filed an amended complaint to make it clear that she was bringing the declaratory judgment portion of the complaint on behalf of Christopher, as his prochein ami or next friend. Despite Judge O’Neill’s ruling that Mangan was counsel and guardian ad litem for Christopher, Orsi continued to maintain that she represented him.\nOn June 5,1991, after the transfer to Superior Court at Plainville, DCYS filed a motion to strike the next friend allegations of the complaint, on the ground that Orsi could not serve as Christopher’s next friend. The court, Brenneman, J., ruled on this motion immediately, despite objection by Orsi’s counsel, and determined that Orsi lacked standing as next friend. This ruling, dated June 5, 1991, effectively struck the declaratory judgment portion of the complaint. On June 20,1991, the trial court dissolved the temporary injunction that had been entered by Judge Maloney and also ruled against Orsi on the habéas count of the petition. The court found that Orsi had failed to establish that the return of Christopher to the care of Barbara R. was not in his best interests. Orsi has not appealed from that decision.\nChristopher was immediately removed from the Orsi home and placed with his grandmother, Barbara R. He remains committed to the custody of DCYS.\n*411Orsi, denominated “Denise M. Orsi, P.P.A. ‘Baby Doe,’ ” filed a timely appeal from the trial court’s rulings as to the declaratory judgment. On June 7,1991, the plaintiff moved for articulation of the trial court’s June 5 oral denial of the declaratory judgment action; the motion was renewed on November 14, 1991, and the articulation was filed by the court on January 21, 1992.\nOn appeal, Orsi claims that the trial court improperly (1) denied the declaratory judgment count of the complaint, (2) denied the declaratory judgment count, sua sponte, without holding judicial proceedings on the matter, (3) denied Orsi the right to conduct discovery relative to the declaratory judgment count, (4) granted the commissioner’s motion to strike Orsi’s designation as next friend of Christopher, and (5) granted the commissioner’s motion to strike on the day it was filed, in violation of Practice Book § 152. The commissioner, in addition to disputing Orsi’s five claims, argues that this court lacks subject matter jurisdiction over the appeal because the claims are moot.7\n*412I\nWe first address Orsi’s claims related to the trial court’s granting of the commissioner’s motion to strike the third count of the complaint, in which Orsi sought a declaratory judgment.8 As a consequence of granting the motion to strike, the court never reached the merits of that portion of the complaint seeking a declaratory judgment. In fact, the January 21, 1992 “articulation of ruling on request for declaratory judgment” is largely an articulation of the court’s decision on the motion to strike. The court clearly stated in its articulation that it refused to rule on the constitutional issue raised by Orsi because “[w]hether or not [the existing DCYS procedure] violates such rights of the child must be raised in an action initiated by one who speaks for the child, as Denise Orsi does not do.” The court noted that “[t]he claim that the regulation which barred Denise Orsi from an administrative hearing is unconstitutional from the child’s point of view . . . cannot be made by [Orsi]. The claim that [it] is unconstitutional from [Orsi’s] point of view cannot be raised in an action which gives her a right to present her placement concerns directly to the court [through a habeas action under § 52-466 (f)].” The court further indicated that the “statute which conferred standing on Denise Orsi to file a habeas action questioning the propriety of a proposed change in placement of her foster child did not give her standing to assert rights on behalf of *413the child. The administrative regulation which she now seeks to question is not involved in this proceeding. She has no more standing in this action to question the constitutionality of that regulation than she has to question the regulations of any other department of state government. Since the question of the propriety of that regulation may not be raised by [Orsi] in a habeas action brought pursuant to § 52-466 (f), this court must decline to issue the declaratory judgment sought.”9\n*414A\nWe turn first to the question of whether the trial court properly determined that Denise M. Orsi lacked standing. “Standing 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. DiBonaventura v. Zoning Board of Appeals, 24 Conn. App. 369, 373-74, 588 A.2d 244, cert. denied, 219 Conn. 903, 593 A.2d 129 (1991), citing Board of Pardons v. Freedom of Information Commission, 210 Conn. 646, 648-49, 556 A.2d 1020 (1989).” (Internal quotation marks omitted.) Delio v. Earth Garden Florist, Inc., 28 Conn. App. 73, 78, 609 A.2d 1057 (1992). “When standing is put in issue, the question is whether the person whose standing is challenged is a proper party to request an adjudication of the issue. . . .” (Internal quotation marks omitted.) Id.\n“[N]o person is entitled to set the machinery of the courts in operation except to obtain redress for an injury he has suffered or to prevent an injury he may suffer, either in an individual or a representative capacity.” Belford v. New Haven, 170 Conn. 46, 52-53, 364 A.2d 194 (1975). “[WJhere a party does not rely upon any specific statute authorizing invocation of the judicial process his standing depends on whether he has a sufficient personal stake in the outcome of the con*415troversy and he is not entitled to vindicate his own value preferences through the judicial process.” (Internal quotation marks omitted.) Id., 54.\nThe trial court found that Orsi had standing under the habeas statute, General Statutes § 52-466 (f), to raise claims related to the placement of Christopher in his grandmother’s home and, therefore, Orsi should not be granted standing to raise similar claims related to his placement by also seeking a declaratory judgment. We do not agree. We note that although there was clearly a controversy between Orsi and DCYS over the validity of the procedures in question, Orsi elected not to raise issues related to her own interests in the third count of the complaint. Rather, her own concerns were addressed in the habeas count. In the declaratory judgment count, she sought to raise only the constitutional rights of Christopher. Therefore, our inquiry first focuses on whether Orsi was a “proper party” to bring the declaratory judgment count on behalf of the minor child, Christopher, as his prochein ami or next friend, in order to challenge the constitutionality of DCYS placement procedures solely as they relate to Christopher’s rights. We need not and do not address the question of whether Orsi herself had standing to challenge these procedures.10\nIt has long been the rule that “a minor may bring a civil action only by a guardian or next friend. Lametta v. Connecticut Light & Power Co., 139 Conn. 218, 220, 92 A.2d 731 [1952]; Tulin v. Tulin, 124 Conn. 518, 522, 200 A. 819 [1938]; Cole v. Jerman, 77 Conn. 374, 380, 59 A. 425 [1904]; Williams v. Cleaveland, 76 Conn. 426, 431, 56 A. 850 [1904]; McCarrick v. Kealy, 70 Conn. *416642, 646, 40 A. 603 [1898]; Clark v. Turner, 1 Root 200 [1790]. . . .” Collins v. York, 159 Conn. 150, 153, 267 A.2d 668 (1970). “Under our common law an infant may sue either by next friend or by guardian, if one has been appointed.” (Emphasis added.) Lametta v. Connecticut Light & Power Co., supra. There is no requirement that the guardian or next friend be a wholly disinterested or neutral person and, in fact, most often the next friend is a parent of the minor child. See, e.g., Picketts v. International Playtex, Inc., 215 Conn. 490, 576 A.2d 518 (1990); Mather v. Griffin Hospital, 207 Conn. 125, 540 A.2d 666 (1988); Burns v. Hartford Hospital, 192 Conn. 451, 472 A.2d 1257 (1984); Duguay v. Hopkins, 191 Conn. 222, 464 A.2d 45 (1983); Cuartas v. Greenwich, 14 Conn. App. 370, 540 A.2d 1071, cert. denied, 209 Conn. 803, 548 A.2d 436 (1988); Wooding v. Zasciurinskas, 14 Conn. App. 164, 540 A.2d 93 (1988). To serve as next friend, “no previous appointment by the court is required, and the prochein ami named in the writ is permitted to appear and prosecute in the infant’s name, though if [the next friend] is not a proper person or fails to properly discharge his duties, the court may remove him and appoint another person in his place.” McCarrick v. Kealy, supra. The only real test for whether a person attempting to bring an action as the minor’s next friend is a proper person to do so is whether that person’s interests are adverse to those of the child.\nThe commissioner argues that Orsi should be precluded from next friend status, because “it is clear that [she] herself had a very real and personal interest in the litigation of these issues, separate and distinct from the child’s interests.” We do not agree. With respect to the declaratory judgment portion of the complaint, Orsi emphasized that the only interests she sought to advance were those of Christopher. Moreover, even the habeas corpus portion of the complaint was brought *417to advance the child’s best interests. There was no evidence before the trial court suggesting that Orsi was unfit or that any serious conflict of legal interests existed between Orsi and the child that would impair her ability to serve as next friend.11 This is notably so as Orsi made clear that she was not advancing her own interests but solely those of Christopher.12\nThe commissioner also argues that Orsi was not entitled to serve as next friend because Christopher already had counsel representing his interests. On May 20, 1991, Mangan, who had been appointed to represent Christopher at the January, 1991 neglect proceeding, filed an appearance in the trial court, which also granted Mangan’s motion to intervene in the present action. In that motion, Mangan stated that he had “acted as attorney for said minor child continuously through to January 31, 1991, at such time when the minor child was adjudged uncared for and/or neglected and committed to DCYS for a period of eighteen months,” and that the “appointment ... is a continuing appointment to the present. The undersigned is familiar with the facts of the case; he has continued to maintain contact with DCYS, the foster parents, and counsel of record.”\n*418Later, on June 5,1991, after the case had been transferred to the Superior Court at Plainville, the court determined that Mangan had represented Christopher since May, 1989, and had served as both his counsel and guardian ad litem “all along.”13 During the May 9 proceeding, Orsi’s counsel did not object to the appointment of counsel for the child, and in fact her complaint stated that counsel should be appointed. Orsi did, however, object to the appointment of Mangan as the child’s counsel, because she contended that it might be necessary to call Mangan as a witness.14 During the June 5 proceeding, no objection was lodged when the court declared that it considered Mangan to be counsel and guardian ad litem “all along.” Rather, Orsi centered her argument on the fact that Mangan received no notice of the proposed back-to-family placement.\nWe see no reason to disturb the trial court’s factual determination that Mangan was and continued to be counsel and guardian ad litem for Christopher from at least the time he was adjudicated neglected in January, 1991.15 The question, then, is whether, notwith*419standing the appointment of counsel and a guardian ad litem whose duty it was to represent Christopher’s legal interests, an action may be brought on behalf of the child by Orsi, who claimed to speak for the child as his next friend, for the sole purpose of challenging DCYS placement procedures.\nAlthough a guardian ad litem is usually the proper person to represent a minor plaintiff, “there are frequently cases when the infant may properly sue by next friend, notwithstanding the existence of such guardian, as when the guardian is absent, or is unwilling or unable to institute or prosecute the required action or appeal .... In such cases . . . there seems to be no good reason why actions and appeals may not at least be commenced by an infant by next friend.” Williams v. Cleaveland, supra, 432. Although Cottrell v. Connecticut National Bank & Trust Co., 175 Conn. 257, 398 A.2d 307 (1978), involved the interests of an incompetent, the court indicated that “the legal disability of an incompetent is analogous to that of a minor.” Id., 264.\nIn Cottrell, the plaintiff had both a guardian ad litem to represent her legal interests and a conservator to manage her affairs. Nevertheless, she brought suit by a next friend in order to appeal a probate order affecting her interests in the settlement of her mother’s estate. The court noted that the “guardian ad litem ha[d] not sought and in fact ha[d] refused to appeal from the probate order. The question is, therefore, whether the plaintiff may seek to appeal the probate order when her legally appointed guardian ad litem refuses to do so.” Id., 262. The court pointed out that “the purpose *420of authorizing a guardian ad litem is to ensure that the interests of the ward are well represented. ... Its purpose is not ... ‘to burden nor hinder [the ward] in enforcing [his] rights; nor to confer any privilege or advantage on persons claiming adversely to [him].’ In order that this purpose be fulfilled, certain exceptional situations warrant the allowance of suit on behalf of the incompetent by a next friend.” (Citations omitted.) Id., 263. That is true even where the incompetent’s interests would be best served by continuance of the conservator’s appointment, in order to allow the situation to be reviewed by the court. Id., 263-64; see also 42 Am. Jur. 2d, Infants § 158 (“even though the infant has a guardian he may sue by next friend unless the guardian dissents; and even if he dissents, a next friend may sue if it is necessary for the ward’s benefit”).\nWhile Cottrell speaks of “exceptional situations,” it does not specify when such situations exist. The case does make clear, however, that a crucial factor for the court to consider in allowing an action to be brought by a next friend, where the incompetent or minor already has a guardian ad litem, is whether such a suit will afford a means by which the court can review a claim affecting the incompetent’s or minor’s interests. The Cottrell court noted that “the purpose of providing representation is to ensure that the legal disability imposed [on the incompetent or minor] will not undermine adequate protection of a ward’s interest. 39 Am. Jur. 2d, Guardian and Ward, § 1.” Cottrell v. Connecticut Bank & Trust Co., supra, 264. The court further noted that “a procedure initiated to protect [the child’s] interests should not be utilized to hinder [him] in obtaining a review of any action involving [his] rights.” (Emphasis added.) Id., 264-65.\nHere, the child’s court-appointed attorney did not attempt to challenge the DCYS procedures affecting *421back-to-family placements.16 Orsi, the child’s foster mother, stepped forward as the child’s next friend to raise what was arguably a colorable challenge to the constitutionality of those procedures as they affect the interests of Christopher. If we were to deprive Orsi of the status of next friend to bring this proceeding, we would be foreclosing judicial review of an agency action arguably involving the child’s constitutional rights. Id. We therefore conclude that in this case exceptional circumstances exist and an action may be commenced by a next friend for the purpose of protecting Christopher’s interests, even though he already has counsel and a guardian ad litem to protect those interests.\nWe must take our inquiry further, however. The commissioner argues that Orsi was not a “proper person” to bring the action on behalf of Christopher. She notes that Orsi, as a foster parent, “had a very real and personal interest in the litigation of these issues, separate and distinct from the child’s interest.” She relies on Judson v. Blanchard, 3 Conn. 579, 581 (1821), for the proposition that “the court will, if [it] disapprove^] of the prochein amy named, displace him, and if necessary, appoint another.” The commissioner contends that Orsi’s effort to assume the role of next friend was disapproved by the trial court, which implicitly found her to be not a “proper and responsible person” to bring suit on behalf of the child because her “own interests in the litigation could easily conflict with the child’s.” The commissioner further argues that “[t]his ruling was well within the court’s discretion and authority.”\nWe agree that the decision of whether the next friend is a suitable person to represent the infant is a question for the trial court. Williams v. Cleaveland, supra, 434. When a child’s action is brought by his next friend, *422the next friend is subject to the supervision or control of the court, and the court has power to determine whether the litigation is in the child’s best interests. See 42 Am. Jur. 2d, Infants § 163. “It is for the benefit of infants who have no guardians, or such as from particular circumstances cannot or will not sue for them, as the case may require, to admit their suits by prochein.ami; whose power and responsibility relative thereto, are the same as guardians. And there can be no danger to the infant from such practice; for the court, under whose inspection the suit is prosecuted, is bound to take care for the infant; and, if the prochein ami is not a responsible and proper person, or misconducts the suit, or institutes one not apparently for the benefit of the infant, will displace him, and, if need be, appoint another.” (Internal quotation marks omitted.) Williams v. Cleaveland, supra.\nWe are thus faced with the issue of whether the trial court abused its discretion in ruling on the motion to strike Orsi’s designation as next friend and determining that she was not a “proper and responsible person” to assert rights on behalf of the child. The record indicates that the court granted the motion to strike primarily because it concluded that Christopher was already represented by Mangan as counsel and guardian ad litem. In its articulation, the court stated: “By a motion to intervene granted before [the transfer of the case to the Superior Court at Plainville], Attorney Steven Mangan, who had then represented the child for nearly two years in both neglect proceedings in Juvenile Matters, was permitted to continue acting as the child’s counsel and guardian-ad-litem, pursuant to § 17a-102f and § 46b-136 . . . instead of [Orsi’s] attorney, a stranger to the case, who had been earlier appointed at the time of issuance of the temporary injunction on the civil side.” The court therefore saw no need for a next friend, since it perceived that the *423child’s interests were already represented. The trial court apparently overlooked the possibility raised in Cottrell, that a child may, in exceptional situations, be permitted to bring an action by a next friend even when the child already has counsel or a guardian ad litem.\nNor did the trial court grant the motion to strike because it concluded that the declaratory judgment action was not for the “benefit of the infant.” Williams v. Cleaveland, supra. Our review of the record indicates that the court never properly separated the claims Orsi was attempting to make under General Statutes § 52-466 (f), and those she sought to raise on Christopher’s behalf by seeking a declaratory judgment.17\nWe conclude that Orsi should have been permitted to bring the third count of the complaint on Christopher’s behalf, as his next friend. We stress that because that count is brought on the child’s behalf, the declaratory judgment action belongs to Christopher, not to Orsi, his prochein ami. “The next friend representing an infant plaintiff is in no sense a party to the action, nor has he any interest in the litigation, but the real party plaintiff in the suit is still the infant.” 42 Am. Jur. 2d, Infants § 161. Christopher, therefore — not Denise M. Orsi — is the plaintiff for purposes of this appeal.\nB\nWe must, however, examine one further aspect of standing: Even if some action may be brought by Christopher through his next friend, we must determine whether he may bring this particular action, which *424seeks a declaratory ruling that the back-to-family placement procedures of DCYS are unconstitutional. The commissioner contends that this court lacks jurisdiction to consider the merits of Christopher’s appeal because his claims are moot. Specifically, the commissioner contends that our determination of the issues “will not result in any practical relief to Christopher, who has already been returned to his grandmother[’s custody] . . . where he remains.” Our ruling, she states, would have no effect on Christopher, who is no longer in foster care.\n“ ‘It is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow.’. . . Shays v. Local Grievance Committee, 197 Conn. 566, 571, 499 A.2d 1158 (1985).” Perry v. Perry, 222 Conn. 799, 803, 611 A.2d 400 (1992). This court will not render advisory opinions. See Moshier v. Goodnow, 217 Conn. 303, 306, 586 A.2d 557 (1991). “ ‘If there is no longer an actual controversy in which we can afford practical relief to the parties, we must dismiss the appeal.’ Sadlowski v. Manchester, [206 Conn. 579, 583, 538 A.2d 1052 (1988)].” Board of Education v. New Haven, 221 Conn. 214, 216, 602 A.2d 1018 (1992). At the conclusion of the habeas proceeding, Christopher was removed from the Orsi home and placed with his grandmother, where he now resides. It is clearly impossible for us to afford him the specific practical relief he requests, namely notice and a hearing prior to his removal from foster care. Christopher, in his reply brief, does not dispute that the immediate controversy is moot; rather, he contends that it falls under the “capable of repetition but evading review” exception to the mootness doctrine.\n*425“In the absence of a class action, the capable of repetition, yet evading review doctrine is limited to the situation where two elements combined: (1) the challenged action [is] in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there [is] reasonable expectation that the same complaining party would be subjected to the same action again.” (Internal quotation marks omitted.) In re Noel M., 23 Conn. App. 410, 413, 580 A.2d 996 (1990). “In deciding whether to invoke this mitigating principle, we [consider] not only the practical difficulties of timely judicial review but also (1) the public importance of the question presented; (2) the potential effect of the ruling on an ongoing program of the state’s penal or civil system; and (3) the possibility of a similar effect on the plaintiff himself in the future. . . .” (Citations omitted; internal quotation marks omitted.) Perry v. Perry, supra; see also Delevieleuse v. Manson, 184 Conn. 434, 437, 439 A.2d 1055 (1981); Shays v. Local Grievance Committee, supra, 572-73. These three mitigating factors must all be present in order for the “capable of repetition” exception to apply. Perry v. Perry, supra. We conclude that they are present here.\nThere is no question that the action we are asked to review is of great public importance and that our decision will have an impact on the state’s foster care system. We focus, therefore, on the third prong of this analysis, the possibility of a similar back-to-family placement affecting Christopher. We must examine this factor in light of the record before us. This case is unlike Shays v. Local Grievance Committee, supra, 574, where the record demonstrated “an isolated incident not likely to be repeated in the foreseeable future.” Here, the record indicates that between the date of his birth and the date on which he was finally placed with his grandmother, Christopher was under the protective supervision of DCYS, was placed in the joint custody of his *426grandmother and mother, was ousted from his grandmother’s home and placed in foster care by his mother, was adjudicated neglected and uncared for and committed to the guardianship and care of DCYS, and was removed from foster care and placed back in his grandmother’s home. The record before us shows that Christopher is still “in the system.” He is still committed to the custody of DCYS, which has complete control over his placement. In the event his grandmother becomes unable or unwilling to care for him, DCYS may place him with another foster family and then with another family member without affording any pre-removal notice or hearing. Under the circumstances, we cannot conclude that there is no “possibility of a similar effect on [Christopher] himself in the future.” Perry v. Perry, supra. Further, because DCYS has complete control over Christopher’s placement, it is also possible that any contested placement would terminate before issues related to it could be fully litigated. We therefore conclude that this controversy is capable of repetition but evading review.\nII\nWe turn now to the merits of Christopher’s appeal. He asks us to declare unconstitutional the process by which DCYS effects the removal of a child from long-term foster care and transfers his placement to the home of a family member.18 While the agency affords notice and the opportunity for a preremoval hearing when a child is removed to another nonrelative foster home, subsection (c) (1) of this regulation states explicitly that a removal hearing will be denied by the *427DCYS hearings unit when the child is being removed and placed directly with the parent, parents, legal guardian, or other relative. Christopher argues that this failure to provide preremoval procedural protections to the child in such a case effects a deprivation of his state and federal constitutional rights to due process and equal protection.19\nOne reason the trial court determined that Orsi lacked “standing” as next friend to seek a declaratory judgment was that the court concluded that the challenged procedures did not implicate any constitutional rights of the child:\n“[Ms. Smith]: [In a nonfamily placement the] foster mother has the right to request that administrative review or hearing to advance the best interests of the child.\n“[The Court]: Okay. But let’s not call this a constitutional right of the baby; let’s call it what it is, which is a right that’s being asserted by the foster mother, who has a quasi-proprietary right in the child that she’s known well. . . .\n“[Ms. Smith]: It’s our position, Your Honor, it’s not the right of the foster parent, it’s the right of the foster parent to advance the right of the child. ...”\nWe thus first address whether Christopher has properly asserted that the absence of certain procedural protections implicates his own constitutional rights. He bases both his procedural due process claim and his equal protection claim on an alleged “fundamental and protected liberty interest in physical safety and personal security” that he claims is substantively protected *428by the fourteenth amendment. “Substantive due process rights are rights such as those listed in the Bill of Rights and those rights held to be so fundamental that a state may not take them away. Among the fundamental rights not listed in the Bill of Rights or incorporated through the fourteenth amendment are such rights as abortion (Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 [1973]); privacy (Whalen v. Roe, 429 U.S. 589, 97 S. Ct. 869, 51 L. Ed. 2d 64 [1978]); marriage (Zablock v. Redhail, 434 U.S. 374, 98 S. Ct. 673, 54 L. Ed. 2d 618 [1978]); and safety and physical movement (Youngberg v. Romeo, 457 U.S. 307, 102 S. Ct. 2452, 73 L. Ed. 2d 28 [1982]).” Taylor by and through Walker v. Ledbetter, 818 F.2d 791, 794 (11th Cir. 1987).\nThe United States Supreme Court has long recognized a liberty interest in safety that cannot be extinguished by an involuntary commitment proceeding. In Youngberg v. Romeo, supra, the court acknowledged such an interest in a child involuntarily committed to a custodial setting, in that case, a state mental institution. The court noted “that the right to personal security constitutes a ‘historic liberty interest’ protected substantively by the Due Process Clause. Ingraham v. Wright, 430 U.S. 651, 673, 97 S. Ct. 1401, 51 L. Ed. 2d 711 (1977). And that right is not extinguished by lawful confinement, even for penal purposes. See Hutto v. Finney, 437 U.S. 678, 98 S. Ct. 2565, 57 L. Ed. 2d 522 (1978). If it is cruel and unusual punishment to hold convicted criminals in unsafe conditions, it must be unconstitutional to confine the involuntarily committed — who may not be punished at all — in unsafe conditions.” Youngberg v. Romeo, supra, 315-16.\nThe right to safety afforded to institutionalized mental patients has been extended by analogy to children taken into custody by the state. Foster children have been found to have a similar liberty interest in physi*429cal safety. In Taylor by and through Walker v. Ledbet-ter, supra, 795, for instance, the court specifically recognized a foster child’s liberty interest in physical safety and held that a child injured by his foster parent could properly maintain a civil rights action under 42 U.S.C. § 1983. The court likened the interest to that in Youngberg, stating that “[i]n both cases the state involuntarily placed the person in a custodial environment, and in both cases, the person is unable to seek alternative living arrangements.” Id. The foster child, like the child confined to a state mental health facility “has a fourteenth amendment substantive due process liberty interest in reasonably safe conditions.” Id.20 This constitutional right of the child — a liberty interest in safety — is implicated throughout the period during which the state has legal custody of the child and establishes the necessary foundation for both the procedural due process and the equal protection claims asserted by Christopher.\nA\nPROCEDURAL DUE PROCESS\nOur procedural due process inquiry is necessarily twofold. “The fourteenth amendment to the United States constitution provides that the ‘State [shall not] deprive any person of life, liberty, or property, without due process of law. . . .’In order to prevail oh his due process claim, the plaintiff must prove that: (1) he has been deprived of a [liberty] interest cognizable under the due process clause; and (2) the deprivation of the [liberty] *430interest has occurred without due process of law.” Tedesco v. Stamford, 222 Conn. 233, 241, 610 A.2d 574 (1992). We have already established that Christopher has a liberty interest in safety protected by the due process clause. It has long been recognized that infringement by the state on such a substantive right “implies constitutional recognition of a procedural right to be heard even when a concededly valid government rule infringing on that interest is enforced.” (Emphasis added.) L. Tribe, American Constitutional Law (2d Ed. 1988) § 10-8, p. 682; see Board of Regents v. Roth, 408 U.S. 564, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972). The sole issue, therefore, is whether the lack of certain preremoval procedures deprives Christopher of his interest in safety without due process of law.\n“ ‘[T]he due process clauses of the state and federal constitutions require that one subject to significant deprivation of liberty . . . must be accorded adequate notice and a meaningful opportunity to be heard.’ . . . We note, however, that ‘[d]ue process, unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances. . . . [D]ue process is flexible and calls for such procedural protections as the particular situation demands. Mor-rissey v. Brewer, 408 U.S. 471, 481 [92 S. Ct. 2593, 33 L. Ed. 2d 484] (1972). Accordingly, resolution of the issue whether the [lack of notice and a hearing in the context of back-to-family placements are nevertheless] constitutionally sufficient requires analysis of the governmental and private interests that are affected.’ . . . Mathews v. Eldridge, 424 U.S. 319, 334, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976). . . .” (Citations omitted.) Tedesco v. Stamford, supra, 242-43.\n“The three elements to be considered, as set forth in Mathews, are ‘[fjirst, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the *431procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.’ Mathews v. Eldridge, supra, 335.” In re Alexander V., 25 Conn. App. 741, 744, 596 A.2d 934 (1991), aff'd, 223 Conn. 557, 613 A.2d 780 (1992). In other words, we must determine whether, under the current DCYS scheme, Christopher risks an erroneous deprivation of his liberty interest in safety because of the lack of an adequate procedural safeguard that could be provided for him without disregarding the countervailing interest of DCYS in family reunification and the fiscal and administrative burden on the state.\nApplying the Mathews criteria to the present case, we conclude that Christopher’s right to procedural due process is violated by the current procedures.\nThe first Mathews factor, the significance of Christopher’s private interest in physical safety, must not be minimized. Protection of Christopher’s physical safety was the primary objective in committing him to the custody of DCYS in the first place. “The public policy of this state as enunciated in General Statutes § 17-38a (a) is [t]o protect children whose health and welfare may be adversely affected through injury and neglect ... to provide a temporary or permanent nurturing and safe environment for children when necessary . . . .” (Internal quotation marks omitted.) In re Cynthia A., 8 Conn. App. 656, 665, 514 A.2d 360 (1986).\nThe commissioner contends that the child has a concomitant interest in family reunification that must also be weighed in this balance. She argues that under this first prong of our analysis, the child’s interests “must *432be balanced with the interests of the state, as ‘parens patriae’ and the interest of [Barbara R.] in family integrity.”\nThe commissioner is correct that in any child custody matter a number of countervailing interests must be considered. Our Supreme Court has emphasized that these interests must be properly balanced before intervention by the state is permissible. “In a hearing on temporary custody . . . the child’s interests are very much at issue. . . . [N]o temporary custody order may issue unless the child is suffering from serious physical illness or serious physical injury or is in immediate physical danger. . . . [TJhere are two competing interests — the safety of the child and the parent’s right of family integrity — at stake in a temporary custody hearing .... The child, of course, has an interest both in safety and in family integrity. The state, as parens patriae, represents the safety interest of the child in custody proceedings. This interest must be balanced against the combined family integrity interests of parent and child, which are represented by the parent.” In re Juvenile Appeal (88-CD), 189 Conn. 276, 298, 455 A.2d 1313 (1983). At the point where coercive intervention becomes necessary, however, “the child’s interest no longer coincides with that of the parent, thereby diminishing the magnitude of the parent’s right to family integrity . . . and therefore the state’s intervention as parens patriae to protect the child becomes so necessary that it can be considered paramount.” (Citation omitted.) Id., 287-88.\nThe initial decision to commit a child to the custody of DCYS is therefore a drastic measure in terms of its effect on the various rights of the parties involved. Once the state has intervened to safeguard the child’s physical security, “[t]he primary concern of DCYS is the safety of [the child]. Family integrity can be the goal of DCYS only when such reunion will not endanger the *433safety of the child.” In re Juvenile Appeal (84-AB), 192 Conn. 254, 258, 471 A.2d 1380 (1984). It is undisputed that in many cases the goals of family reunification and protection of the child and his best interests may be mutually exclusive.21 Throughout the commitment, the child’s well-being must underlie any action taken by DCYS on his behalf. This does not negate the important interest of the child or his relatives in family integrity. Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982); Moore v. East Cleveland, Ohio, 431 U.S. 494, 97 S. Ct. 1932, 52 L. Ed. 2d 531 (1977). It simply means that the child’s fundamental interest in physical security — the interest initially sought to be protected when the state intervened in his family-remains paramount. Obviously, once the cause for the commitment of the child to DCYS custody ends, the interest in family integrity regains its preeminence and it is “then incumbent on DCYS to reunite the family.” In re Juvenile Appeal (83-CD), supra, 291. As long as the child remains in DCYS custody, however, placing a child with relatives does nothing to diminish the priority of his right to physical safety.22\nThe second Mathews factor to be considered is whether the failure of DCYS to give a foster parent notice and a hearing before a child is removed to the home of a family member creates the risk of an erroneous deprivation of the plaintiff’s liberty interest in physical safety. We also examine the probable value of additional procedural safeguards.\nBefore we examine this Mathews factor, we must address the commissioner’s contention that Christopher’s *434due process claim is “fatally flawed in that the regulation clearly affords a hearing to a foster parent only and not to the child in her care when that child is removed and placed in a nonfamily placement.” The commissioner is correct that the regulation, by its terms, grants a hearing, upon request, not to a foster child, but to his foster parents, when DCYS proposes to remove that child from one foster home to another, nonfamily foster home; the regulation does not provide notice and a hearing to the child. In a technical sense, it is the foster parents to whom this regulation denies notice and opportunity to be heard when a child is returned to the home of a family member. Nevertheless, the rights of the child are directly implicated by these notice and hearing procedures. The hearing is part of an overall scheme intended principally to protect the child’s interests. In fact, § 17-37-3 of the same regulation explicitly states that “[t]he Removal Hearing is a proceeding to determine if it is clearly in the child’s best interests to be removed from the foster home.”23 We thus find no merit in the commissioner’s “fatal flaw” argument.\nThe commissioner also contends that the risk of erroneous deprivation to the child through present DCYS and statutory procedures is minimal. She notes that the agency is subject to “strict mandates and safeguards imposed by our legislature and to self-imposed safeguards contained in the DCYS regulations. Together, these procedural requirements minimize the risks of erroneous deprivation to the child.” Specifi*435cally, she points to (1) regulations mandating a comprehensive treatment plan for each child, (2) the right to a hearing to contest the proposed plan of action, (3) the requirement that the home where the child will be placed be licensed, including the home of a relative, (4) the right to counsel in a proceeding in which legal custody is at issue, and (5) the foster parents’ statutory right to bring a habeas action to contest the removal of a child from their home.\nWith respect to the first two procedural protections referred to by the commissioner, we note that these procedures must be provided for all foster children who are in the custody of DCYS. We note that with respect to treatment plans, DCYS regulations afford the child or his parent the right to a hearing to address concerns about a treatment plan; the regulations do not provide for any participation by foster parents, however. See §§ 17-421-1 through 17-421-11 of the Regulations of Connecticut State Agencies.\nWith respect to the third procedural protection, there is a distinction, acknowledged by the commissioner, when the child is to be returned to the home of a relative. General Statutes § 17a-114 permits the agency to place a child with an unlicensed relative for up to forty-five days as long as certain conditions are met.\nWe view the fourth protection cited by the commissioner with some skepticism. While it is clear that Attorney Mangan was appointed counsel when Christopher was initially committed to the custody of DCYS, it is unclear from the record what degree of involvement Mangan had in Christopher’s disposition after commitment. Our sole concern here, of course, is with the decision of DCYS to return Christopher to the home of his grandmother. While the trial court stated that it considered Mangan to have been counsel “throughout the proceedings,” the record is quite *436clear that Mangan received no notice of the decision of DCYS to remove Christopher from Orsi’s home.24 Had Orsi not stepped forward to challenge the agency’s decision, it appears that even if Mangan had wanted to question the proposed placement, he would have had no opportunity to do so.\nWe are similarly unpersuaded that the right of the foster parents tc bring a habeas action, after the decision has been made to return a foster child to a family member, fully satisfies the requirements of due process. The opportunity to be heard at a meaningful time and in a meaningful manner is constitutionally required to meet currently accepted standards of procedural due process. Pet v. Department of Health Services, 207 Conn. 346, 364, 542 A.2d 672 (1988). The cost and delay involved in bringing a postdetermination judicial action as opposed to obtaining an informal, predetermination administrative hearing may be significant. Moreover, unless the foster parent also manages to secure a temporary injunction to prevent removal of the child, the mere filing of a habeas petition may not prevent the agency from actually removing the child before the habeas action has been decided. A preremoval hearing would avoid an after the fact correction of the placement decision and its concomitant disruption of the child’s sense of stability and continuity of care.\nThe incidence of a child’s being placed back with family members, some of whom may have been previously adjudged abusive or neglectful, may not be high; the risk may be significant, however, in terms of a *437child’s safety. While there are bound to be cases in which even extensive preremoval procedures will not prevent what, in retrospect, is an erroneous placement decision, we are unwilling to use that inevitability to deny the child his right to some very basic procedural protections.\nExtending the existing notice and hearing provisions of § 17-37-4 of the regulations to foster parents in all removal situations can only enhance the decision-making process that determines the placement and legal status of the child. Such procedures are designed to ensure that the agency’s plan to remove the child from his present foster home reflects a fully informed decision. There is, of course, some danger that foster parents may attempt to use a preremoval hearing inappropriately to block the return of a child to his family. See R. Horowitz, M. Hardin & J. Bulkley, The Rights of Foster Parents (1989), pp. 17-28. We believe this danger is minimal. Moreover, any potential danger is more than offset by the strong possibility that a foster parent who is motivated enough to request such a hearing may actually bring to the attention of DCYS important information about the child or the proposed placement, known only to the foster parent, that would cause DCYS to reconsider the child’s removal from the foster parent’s home. If the safety of some of Connecticut’s foster children is ensured by such a process, that more than offsets the slight chance that a hearing may be requested only to delay the planned removal. “It is important, however, to remember that allowing foster parents a hearing is not tantamount to favoring their claim. . . . But a hearing helps assure that information will be presented . . . that is known only to the foster parents or that only foster parents are motivated to present.” Id., p. 24.\nThe third Mathews factor concerns the burden on the state of providing this additional procedure. The com*438missioner states that DCYS is a fiscally and administratively overburdened agency and “it is simply unrealistic to expect DCYS to provide administrative hearings every time a family reunification is attempted.”\nThe commissioner offers no support for these claims. It is unclear, for example, how often the existing hearing procedure is employed by foster parents in the context of removals to another nonfamily foster home. Nor is it clear how costly or time consuming such a procedure is. We do agree with the commissioner that this hearing process is unrealistic “every time” a back-to-family placement occurs. Many foster care placements are of short duration. In those situations, the foster parent may not have had time to develop any special knowledge of or insight into the child that would permit him or her to offer meaningful assistance to the agency in its placement decision.25 Once a child has been in the foster home for one year or more; see Regs., Conn. State Agencies § 17-37-4 (a) (1); the relationship between child and foster parent has developed to the point where such a process can be meaningful. The foster parents, who have had daily contact with the child, have, at this point, become significant figures in the child’s life. The child’s removal from the foster home is clearly a critical stage in the commitment and a decision not to be undertaken by the agency without careful deliberation. By this time, the foster parents may have gained significant insights into the child and be in a unique position to offer information about the child or the proposed placement that will assist DCYS in its decision making. Their voices must be heard.\nWe likewise conclude that when a foster child reaches the critical stage at which DCYS plans to remove the *439child from a foster home in which he or she has resided for one year or longer, the child’s counsel and guardian ad litem must have some notice of that plan before it is carried out. This notice ensures that counsel for the child has the opportunity to perform the function he or she has been appointed to perform, namely, protect the legal interests of the child.\nAffording foster parents notice and the opportunity to be heard does not mean that every foster parent will request such a hearing. Nor does it mean that the agency’s professional judgment to remove the child from the foster home and place him elsewhere is not entitled to great weight. These notice and hearing procedures, which we hold are constitutionally required, are merely one of an array of necessary safeguards designed to protect foster children and their liberty interest in safety.\nB\nEQUAL PROTECTION\nBecause we conclude that the procedures by which DCYS removes a child from a foster home and returns him to the home of a family member violate the child’s constitutional right to procedural due process, we need not address Christopher’s equal protection claim.\nThe judgment is reversed and the case is remanded to the trial court with direction to render judgment (1) declaring that the existing procedures by which DCYS removes a child from a foster home in which he or she has resided for one year or more and places the child with a family member are unconstitutional and (2) directing that DCYS establish new procedures for such removals in accordance with this opinion.\nIn this opinion the other judges concurred.\n\n No reunification efforts were directed to Stephen P.\n\n\n The report states: “The Department of Children and Youth Services does not feel that Christopher’s need for a safe, nurturing environment can be met in his mother’s home at this time due to Stephen [P.’s] abuse of Deborah, his violent temper and poor judgment which seriously jeopardizes Christopher’s welfare and places him at great risk. Deborah [C.] continues to require assistance to improve her parenting skills and address her individual issues before she can adequately meet Christopher’s needs. Her focus on her relationship with Stephen [P.] jeopardizes Christopher’s safety and well-being.”\n\n\n General Statutes § 46b-129 (d) provides: “Upon finding and adjudging that any child or youth is uncared-for, neglected or dependent, the court may commit him to the commissioner of children and youth services for a maximum period of eighteen months, unless such period is extended in accordance with the provisions of subsection (e) of this section, provided such commitment or any extension thereof may be revoked or parental rights terminated at any time by the court, or the court may vest such child’s or youth’s care and personal custody in any private or public agency which is permitted by law to care for neglected, uncared-for or dependent children or youth or with any person found to be suitable and worthy of such responsibility by the court. The commissioner shall be the guardian of such child or youth for the duration of the commitment, provided the child or youth has not reached the age of eighteen years or, in the case of a child or youth in full-time attendance in a secondary school, a technical school, *405a college or a state-accredited job training program, provided such child or youth has not reached the age of twenty-one, by consent of such youth, or until another guardian has been legally appointed, and in like manner, upon such vesting of his care, such other public or private agency or individual shall be the guardian of such child or youth until he has reached the age of eighteen years or, in the case of a child or youth in full-time attendance in a secondary school, a technical school, a college or a state-accredited job training program, until such child or youth has reached the age of twenty-one years or until another guardian has been legally appointed. Said commissioner may place any child or youth so committed to him in a suitable foster home or in the home of a person related by blood to such child or youth or in a licensed child-caring institution or in the care and custody of any accredited, licensed or approved child-caring agency, within or without the state, provided a child shall not be placed outside the state except for good cause and unless the parents of such child are notified in advance of such placement and given an opportunity to be heard, or in a receiving home maintained and operated by the commissioner of children and youth services. In placing such child or youth, said commissioner shall, if possible, select a home, agency, institution or person of like religious faith to that of a parent of such child or youth, if such faith is known or may be ascertained by reasonable inquiry, provided such home conforms to the standards of said commissioner.”\n\n\n General Statutes § 52-466 (f) provides: “A foster parent or an approved adoptive parent shall have standing to make application for a writ of habeas corpus regarding the custody of a child currently or recently in his care for a continuous period of not less than ninety days in the case of a child under three years of age at the time of such application and not less than one hundred eighty days in the case of any other child.”\n\n\n Section 17-37-4 of the Regulations of Connecticut State Agencies provides: “HEARING PROCEDURES\n“(a) RIGHT TO A REMOVAL HEARING\n“(1) An approved or licensed foster parent may request a Removal Hearing if the child has been in continuous placement in the foster home for one year or more. Exception: The one year requirement shall not apply in cases where the foster parent is a relative.\n“(2) Except in cases of imminent danger, the department shall notify the foster parent in writing at least 10 days before removal of its decision to remove the child from the foster home and of the foster parent’s right to a removal hearing if he or she disagrees with the plan.\n“The case record shall contain dated documentation of (a) the foster parent’s reaction to the child’s removal, (b) whether or not the foster parent wishes to exercise the right to ask for a Removal Hearing, and (c) a copy *407of the letter sent to the foster parent regarding removal. If the foster parent decides to request a Removal Hearing, the social worker will provide any assistance necessary.\n“(3) The child will remain in the foster home pending the outcome of a Removal Hearing. Exception: If the child is in imminent danger, the department may take appropriate action to protect the child. A Probable Cause Hearing in this situation will be scheduled within 10 working days of a request, and a Removal Hearing will be scheduled upon completion of a third party and/or police investigation of the foster home. Notice of the right to a Probable Cause Hearing shall be given at time of the removal. If the foster parent desires a Probable Cause Hearing, she must notify the department by mailing a written request within 48 hours.\n“(4) The written notice given to the foster parent pursuant to 17- 37-4 (2) and (3), shall cite this regulation, state the department’s reason for removal, the foster parents right to a Removal Hearing, the manner in which the request for a hearing must be made, and the time within which request must be made or waived.\n“(b) REQUEST FOR REMOVAL HEARING\n“(1) The foster parent may request a Removal Hearing by sending a letter to the Commissioner stating the reasons why the child should not be removed. The letter must be received within 10 calendar days from the date on which the department notified the foster parent of the decision to remove the child from the foster home or removed the child from the home in cases of emergency as defined in 17-34-3 (3).\n“(2) Responsibility for preparing the foster parent and the child for the Removal Hearing shall be shared by the regional office, the hearing unit and the child’s advocate. The regional staff explains the Removal Hearing process and may use the hearings unit as a resource for additional information. The child’s advocate may also provide factual information pertaining to Removal Hearing procedures as well as provide reassurance and emotional support.\n“(e) DENIAL OF REQUEST FOR A REMOVAL HEARING\n“A Removal Hearing will be denied by the hearings unit when:\n“(1) The child is being placed directly with the parent, parents, legal guardian, or other relative.\n“(2) The child is not in the custody of the department pursuant to any court order.\n“(3) Court proceedings are in progress which can affect custody, or a court decision such as a revocation of commitment results in moving the *408child from the foster home.\n“(4) The foster home is not approved or licensed by the Department.\n“(d) ROLES AND RESPONSIBILITIES OF PARTICIPANTS\n“(1) The Panel:\n“(A) The Removal Hearing is conducted by a three person panel appointed by the Commissioner. Two members will come from outside DCYS and will be knowledgeable in the child welfare field. The third will be a department social worker or supervisor working in direct supervision of children in foster care or foster care licensing. The panel chairman shall be one of the outside professionals. The probable cause hearing is conducted by one person, either a professional from outside the department knowledgeable in the child welfare field or a DCYS hearing officer.\n“(B) A current list of qualified persons designated by the Commissioner is maintained by the hearings unit. With the exception of the chairman, the hearings unit rotates appointments and gives consideration to ethnic balance, diversity of expertise, and availability.\n“(C) The panel members will attend all proceedings pertaining to the Removal Hearing.\n“(D) At no time shall the panel include members of the same outside agency or regional office where the child or foster parent is being counseled or supervised or any other person with knowledge of the case.\n“(E) The chairman shall have overall administrative responsibility for conducting the Removal Hearing. The chairman will:\n“(i) instruct the other panel members on procedures prior to hearing,\n“(ii) ensure that the hearing is conducted in an orderly manner.\n“(iii) afford all parties the opportunity to present information fully,\n“(iv) permit parties to question each other when it is appropriate to do so.\n“(2) The Child’s Advocate\n“(A) The department shall designate a private social service agency or qualified professional outside the department to serve as the child’s advocate during the Removal Hearing. The advocate shall gather pertinent case data through appropriate interviews and review of records to provide the panel with the required background information and to make recommendations at the hearing.\n“(B) The advocate shall not be a person who is involved in any decisions about the case such as an abuse referral or an adoption study.\n“(C) The advocate is permitted to share information with private consultants if consultation services are approved by the department.\n“(3) The Foster Parent:\n“The foster parent requesting the Removal Hearing, shall be permitted to bring an attorney or other representative, witnesses and consultants, *409at his expense. He may also bring reports, letters and other documents to support his position. The foster parent is encouraged to participate freely.\n“(4) The Attorney or Representative\n“The Removal Hearing will be held in accordance with the Connecticut Uniform Administrative Procedure Act — Connecticut General Statute 4-177 through 4-183 inclusive. However, it is conducted on an informal basis to promote openness and discussion of issues that will help the panel arrive at the best decision for the child. An adversarial atmosphere focused more on procedure and restriction of information is contrary to the purpose of the Removal Hearing.\n“(5) The Child:\n“As a matter of policy, the child will participate in the hearing to the extent possible.\n“(6) The Regional Office Representatives:\n“(A) The department shall be represented by the regional office social worker for the child and the supervisor or program supervisor involved in the decision to remove the child.\n“(B) The regional office staff shall come fully prepared to discuss the decision to remove the child and the rationale upon which it is based.\n“(C) A summary of facts shall be prepared by the regional office representative outlining clearly and briefly all the reasons for the child’s removal. The summary shall be submitted to the hearings unit immediately following the hearing requests, and a copy will be sent to the foster parents, their attorney, and the child’s advocate with the notice of hearing. The purpose of the summary is to focus the hearing by setting forth the issues to be considered and enable the foster parents to respond.\n“(7) Witnesses:\n“(A) Department administrators, licensing, adoption and other staff may be present to testify if it is deemed appropriate, but generally do not remain during the entire hearing.\n“(B) Other witnesses shall be called to testify at the appropriate times and will not remain during the entire hearing.\n“(8) Case Records:\n“(A) The child’s advocate shall have immediate and unlimited access to all department records and documents pertaining to the child and the foster parents.\n“(B) Prior to and during the hearing, the foster parents and their attorney shall have access to their foster care record upon request.\n“(C) Prior to and during the hearing, the foster parents or their attorney for purposes of the hearing may inspect their portion of the child’s record, if any, which pertains to the extent and quality of the care given to the child in that foster home.”\n\n\n The trial court, upon granting Mangan’s motion to intervene, stated that Orsi’s counsel represented only Orsi, herself, but not Christopher.\n\n\n On August 7, 1991, the commissioner moved to dismiss this appeal on grounds that Denise Orsi lacked standing to bring the appeal and that the controversy was moot. We denied the motion as to standing and denied it without prejudice to the parties raising the issue of justiciability in their briefs. In a reply brief, Orsi argues that the “question of whether [Orsi] could represent the child’s interests as a prochein ami was ruled upon by [the Appellate Court] when it denied the Defendant’s Motion to Dismiss the appeal on that ground.” Both parties have apparently confused standing to bring an appeal with standing to bring a petition in the trial court. These are two separate issues. “This court has jurisdiction to determine whether the Superior Court had subject matter jurisdiction to hear [this case], . . . [The question of whether the Superior Court had jurisdiction] must be decided on the record, after briefs have been filed, and oral argument, if any, has been had.” Drake v. Planning & Zoning Commission, 14 Conn. App. 583, 541 A.2d 1251 (1988). Thus, our determination that Orsi had standing to bring the appeal did not decide the question of whether she had standing to bring the action in the trial court.\n\n\n The commissioner argues that Orsi has not properly preserved this claim for review because no contemporaneous, formal exception was made to the trial court’s ruling on the motion to strike. No exception is required with respect to a trial court ruling on a motion to strike. An exception is required in order to make a trial court ruling a ground of appeal only with respect to evidentiary rulings; Practice Book § 288; and jury instructions. Practice Book § 318. Orsi vigorously objected to both the grant of the motion to strike and the denial of the declaratory judgment. This was all that was required to preserve this issue for our review.\n\n\n In its articulation, the trial court suggested that Orsi may have had standing to challenge the regulation had she actually requested a hearing prior to Christopher’s removal and been denied one by DCYS: “The regulation she questions does, indeed, exclude from the administrative hearings which can be demanded by foster parents prior to a foster child’s removal to another placement, those removals which are to the homes of natural parents, guardians, or blood relatives. Had Denise Orsi made a formal request for such a hearing and appealed from the denial thereof, the questioned regulation would be at issue, and the declaratory judgment she seeks would be an appropriate relief to be sought. Even then, however, since a foster parent is neither legal custodian, guardian, guardian-ad-litem, counsel, next friend or possessor of residual parental rights, the only due process issues raised by such an administrative appeal would have to be [those] of Denise Orsi herself such as loss of income resulting from such removal, and not those of the foster child. But this is not an administrative appeal since Denise Orsi never requested an administrative hearing. . . .” The commissioner, likewise, has noted in her brief that “[Orsi] did not request a repeal of the regulation nor petition DCYS for a declaratory ruling on the regulation as required [by General Statutes § 4-176].” We do not perceive Orsi’s failure to request an administrative hearing as an obstacle to her bringing a facial challenge to the constitutionality of DCYS procedures as the next friend of Christopher. A party is not required to exhaust administrative remedies when purely constitutional claims have been raised regarding a challenged regulation, the adjudication of which is exclusively a judicial function. Savage v. Aronson, 214 Conn. 256, 268-70, 571 A.2d 696 (1990); see also Housing Authority v. Papandrea, 222 Conn. 414, 423 n.7, 610 A.2d 637 (1992). Moreover, there is no need to “exhaust” administrative remedies when recourse to the agency would be futile; id., 421-22; as in this case, where the regulation states on its face, in clear and unambiguous terms, that a removal hearing “will be denied” when the child “is being placed directly with the parent, parents, legal guardian, or other relative.” See id., 436 (Berdón, J., dissenting); Kosinski v. Lawlor, 177 Conn. 420, 424-25, 418 A.2d 66 (1979); see Sharkey v. Stamford, 196 Conn. 253, 257, 492 A.2d 171 (1985); Friedson v. Westport, 181 Conn. 230, 435 A.2d 17 *414(1980); Bianco v. Darien, 157 Conn. 548, 554, 254 A.2d 898 (1969). We therefore reject the suggestion that the trial court lacked subject matter jurisdiction to entertain this declaratory judgment action because the plaintiff failed to exhaust administrative remedies.\n\n\n The trial court’s determination that Orsi lacked standing to challenge the subject regulation because she had direct access to court under General Statutes § 52-466 (f) is therefore irrelevant, since Orsi did not, in the amended third count of the complaint, seek to challenge this regulation in her own right.\n\n\n If the ability to serve as next friend depended on the absence of any subjective interest in the outcome of the litigation, certainly most parents would be precluded from serving as next friends in tort actions brought on behalf of their minor children.\n\n\n We point out that this case differs from Nye v. Marcus, 198 Conn. 138, 502 A.2d 869 (1985), in which our Supreme Court rejected the foster parents’ claim of standing, which was based on an assertion of their foster child’s interests. The court noted that a foster parent’s interests “may well be in conflict with” those of the foster child. In Nye, unlike in the present case, the foster parents were, in addition to attempting to raise the child’s right to continuity of care in their home, also attempting to assert their own interests in maintaining a foster parent relationship. By contrast, no part of Orsi’s complaint was based on her own interest in continuing the foster family relationship. The holding in Nye v. Marcus, supra, has been legislatively overruled by the enactment of General Statutes § 52-466 (f).\n\n\n The court stated: “I would regard [Attorney Mangan] as being counsel and guardian ad litem for Christopher, as [he has] been since May [1989]. . . .”\n\n\n Because the constitutional claims were based, in part, on an alleged lack of procedural protections afforded to a child when he is removed from foster care and placed with a family member, Orsi intended to have Mangan testify about whether he had received notice from DCYS of the plan to return Christopher to his grandmother’s home. This testimony was never developed, because the court granted Mangan’s motion to quash a notice of deposition served on him. This testimony also became unnecessary, as the parties later stipulated that Mangan had not received any notice. See footnote 24, infra.\n\n\n We note that Mangan also filed an appearance on behalf of Christopher for purposes of this appeal, although he did not file a separate brief or participate in oral argument on October 8 and 9,1992. In fact, Mangan explicitly waived oral argument and adopted the brief of DCYS. Orsi’s brief states that when DCYS made its decision to return Christopher to the home of Barbara R., he had no court-appointed counsel. This argument is not grounded on any statute or regulation governing appointment of counsel *419but on testimony Orsi obtained by deposing a seasoned child advocate who has represented children in similar cases. Because we accept the trial court’s finding, we need not reexamine whether Mangan’s appointment did, in fact, continue “all along” or whether the appointment “expired” at some point before the present action began.\n\n\n We do not necessarily perceive this as indication that the child and his counsel had interests that were adverse. Nor do we view this as indication of Mangan’s competence to represent this child’s legal interests.\n\n\n In the course of the June 5, 1991 hearing, the court stated to Orsi’s counsel: “Your client has access to a court under a statute, and they’ve taken advantage of that. It is not necessary for me to even look at the regulations you cite. ... I couldn’t understand why you want me to rule on a regulation that isn’t an issue here.”\n\n\n While the Juvenile Court never reached the merits of the declaratory judgment count of the complaint, the parties do not dispute that the record before us is adequate to allow a final determination of the constitutional issues presented. Bruno v. Civil Service Commissioner, 184 Conn. 246, 251, 440 A.2d 155 (1981), on remand, 192 Conn. 335, 472 A.2d 328 (1984).\n\n\n We note that the plaintiff has not provided a separate analysis of his constitutional claims under the state constitution. We therefore need not independently undertake to engage in such an analysis. State v. Birch, 219 Conn. 743, 746 n.4, 594 A.2d 972 (1991); State v. Joyce, 30 Conn. App. 164, 168 n.8, 619 A.2d 872 (1993).\n\n\n We note that in many civil rights actions by foster children against social service agencies, the existence of the child’s constitutional right to physical safety has been unquestioned; the decisions have, instead, turned on other issues, such as whether that right has been violated. See, e.g., DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189, 109 S. Ct. 998, 103 L. Ed. 2d 249 (1989); Milburn v. Anne Arundel County DSS, 871 F.2d 474 (4th Cir. 1989); Doe v. New York City Department of Social Services, 649 F.2d 134 (2d Cir. 1981).\n\n\n See, e.g., A. Solnit, B. Nordhaus & R. Lord (1992), When Home is No Haven (detailed case studies oí Connecticut children in protective custody).\n\n\n See National Commission on Children (1991), Beyond Rhetoric: A New American Agenda l'or Children and Families, Final Report, p. 299 (placing a child with relatives does not abrogate the state’s responsibility to protect his or her health and development).\n\n\n Section 17-37-3 of the Regulations of Connecticut State Agencies provides: “removal hearing\n“It is the policy of the department to conduct a hearing on the removal of a child from the foster home hereafter cálled Removal Hearing, when the approved, licensed or relative foster parent disagrees with the department’s decision to remove the child from the foster home. The Removal Hearing is a proceeding to determine if it is clearly in the child’s best interest to be removed from the foster home.” (Emphasis added.)\n\n\n At the June 5,1992 proceeding, in response to Christopher’s inquiry as to whether Mangan had received notice of his proposed removal from Orsi’s home, the trial court stated: “I can tell you right now . . . that after a Child is committed to DCYS, there is no obligation for DCYS to report to the court or to the child’s attorney unless we request it. . . .There is no requirement — I made no requirement in this or in any case that I recall that DCYS inform the child’s attorney of a proposed change of placement. So I think the parties can stipulate to that.”\n\n\n We believe the habeas procedure under General Statutes § 52-466 (f) provides an adequate forum for addressing foster parents’ concerns when the placement has been for less than one year.\n\n", "ocr": true, "opinion_id": 7855149 } ]

"1993-06-15"

[ "31 Conn. App. 634" ]

[ { "author_str": "Dupont", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nDupont, C. J.\nThe sole issue in this appeal is whether the trial court improperly denied the defendant’s motion to open a judgment rendered after the defendant was defaulted for failure to plead. The underlying factual dispute revolves around a used truck that the plaintiff purchased from the defendant used car dealership. Shortly after the plaintiff purchased the truck, the truck’s engine failed and the plaintiff had it towed to the defendant’s garage. After the defendant refused to repair the truck at its expense, the plaintiff commenced this action. The plaintiff’s complaint was in three counts and sought (1) damages for breach of a statutory warranty,1 (2) rescission of the sale, and *636(3) damages for a violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes §§ 42-110a through 42-110q.\nThe defendant filed an appearance, but did not file an answer. The plaintiff subsequently moved to default the defendant for failure to plead. After the plaintiffs motion was granted, the plaintiff filed a motion for judgment. The motion for judgment stated that the plaintiff was “moving for judgment pursuant to Practice Book § 358 2 based upon the express or implied promise to pay a definite sum and claims only liquidated damages.” The motion requested judgment against the defendant “in the amount of $35,733.76,3 plus interest, and costs in the amount of $161.80.” The plaintiff’s motion for judgment is at variance with the “Statement re: Amount in Demand” attached to the plaintiff’s complaint in two material respects. The former claimed damages in excess of $15,000 and sought a remedy based on an express or implied promise to pay a definite sum, whereas the latter claimed damages under $15,000 and stated “[t]he remedy sought is not based upon an express or implied promise to pay a definite sum.” (Emphasis added.)\nThe motion for judgment was accompanied by an affidavit of debt signed and acknowledged by the plain*637tiff, a copy of the purchase agreement and vehicle registration, a military affidavit, a bill of costs, and a proposed form of judgment and notice. The plaintiffs affidavit alleged that he had purchased the truck for $8649 and that he had spent $378 for improvements to the truck, $300 for insurance, $1036.42 for interest on a loan of $8375 to buy the truck, and $714.50 for alternate transportation. No bills were attached to the affidavit to substantiate any of the sums allegedly paid.\nThe plaintiff’s motion for judgment was assigned for a short calendar hearing on December 16, 1991, but neither the defendant nor its attorney appeared. The court, West, J., heard argument from the plaintiffs counsel, and on December 19,1991, rendered judgment “on the papers” in favor of the plaintiff for damages of $10,041.504 plus interest at the legal rate of $1042.77, plus costs of $161.80. The court specifically stated that it did not award punitive damages or attorney’s fees. The notice of this judgment was mailed to the defendant on January 16, 1992.\nThe defendant attempted to file an answer to the complaint on December 31,1991, but the pleading was returned on January 16, 1992, accompanied by the notice of judgment and a form letter stating that no pleadings are accepted after judgment enters and that the defendant should file a motion to open the judgment. The defendant did not file an appeal from the judgment or file a motion to open the judgment within the appeal period.\nAfter the appeal period had expired, the plaintiff was granted a bank execution by the court. The sheriff served the execution on the defendant’s bank and was *638able to satisfy the judgment partially by recovering $10,670.48 from the defendant’s account.5 The defendant then retained new counsel and filed a motion to open the judgment on March 3, 1992. At the hearing on the motion to open the judgment, the defendant argued that it had a good defense, namely that a hearing in damages should have been held because the complaint did not seek a liquidated sum, and that he was prevented by mistake, accident or reasonable cause from making that defense.6 The motion was denied by the court, Rodriguez, J., and the defendant appeals from that denial.\nAfter filing the appeal, the defendant moved for an articulation of the trial court’s decision to deny its motion to open. In its articulation, the trial court stated that it denied the defendant’s motion to open because it had concluded that the defendant had failed to show that it was precluded by mistake, accident or reasonable cause from defending. The court found that the *639affidavit of the defendant’s original counsel, stating that a search of his office did not reveal a copy of the motion for judgment or of the short calendar docket on which the motion had appeared, did not support a claim of insufficient notice. The court also noted that the denial of a motion to open a judgment is not an abuse of discretion where the failure to prosecute the claim was the result of negligence. The court, therefore, did not reach the question of the propriety of a hearing in damages.\nThe defendant’s preliminary statement of issues asserted that the court improperly granted the plaintiff’s motion for judgment after default without holding a hearing in damages, and improperly denied its motion to open the judgment. The plaintiff moved to dismiss the appeal, arguing that the defendant had failed to file its appeal within twenty days of the issuance of notice of the judgment, and, therefore, could not claim any impropriety in the judgment. We granted the plaintiff’s motion as to any issues concerning the December, 1991 judgment, and upon further motion of the plaintiff, ordered a portion of the defendant’s brief stricken on the basis that the defendant was attempting to argue the merits of the underlying judgment. This appeal, therefore, is limited to review of the action of the trial court in refusing to open the judgment and is not concerned with the merits of that judgment.\nOn appeal from a denial of a motion to open a judgment where there has been no appeal from the underlying judgment, the good cause required to open that judgment cannot involve the merits of the judgment because that would require a resolution of the same question that would have been resolved had the appellant timely appealed from the judgment and would, in effect, extend the time to appeal. See Farmers & Mechanics Savings Bank v. Sullivan, 216 Conn. 341, *640356, 579 A.2d 1054 (1990). When a motion to open is filed more than twenty days after the judgment, the appeal from the denial of that motion can test only whether the trial court abused its discretion in failing to open the judgment and not the propriety of the merits of the underlying judgment.\nThe decision to grant or deny a motion to open a judgment is within the trial court’s discretion and this decision will not be disturbed on appeal unless it was unreasonable and a clear abuse of discretion. Red Rooster Construction Co. v. River Associates, Inc., 224 Conn. 563, 575, 620 A.2d 118 (1993). Practice Book § 377 provides in relevant part that a default judgment may be set aside by “showing reasonable cause, or that a good cause of action or defense in whole or in part existed at the time of the rendition of such judgment . . . and that . . . the defendant was prevented by mistake, accident or other reasonable cause from . . . appearing to make the same.”\nHere, the trial court’s findings were not inconsistent with the subsidiary facts and its decision to deny the motion to open was not unreasonable and does not constitute an abuse of discretion. This conclusion, however, does not entirely resolve the appeal. Although the judgment of December 19,1991, need not be set aside, we conclude that it must be corrected because it is facially inconsistent with the complaint. See Connecticut Mortgage & Title Guaranty Co. v. DiFrancesco, 112 Conn. 673, 674, 151 A. 491 (1930).\nA plaintiff’s right to recover has traditionally been limited to the allegations of his complaint, and a plaintiff may not allege one cause of action and recover upon another. Tedesco v. Stamford, 215 Conn. 450, 458, 576 A.2d 1273 (1990); A. V. Giordano Co. v. American Diamond Exchange, Inc., 31 Conn. App. 163, 166, 623 A.2d 1048 (1993). Here, the plaintiff alleged three different *641causes of action in his complaint, the first alleging a breach of statutory warranty, the second seeking rescission, and the third alleging a violation of CUTPA. Judgment was rendered in the amount of $10,041.50, but it cannot be ascertained whether judgment was awarded on count one, two, or three. We conclude that the amount of the damages awarded corresponds most accurately with the cause of action for rescission.\nWith regard to count one, General Statutes § 42-220 provides that each sales contract entered into by a used car dealer for the sale of a used motor vehicle must contain an express warranty stating that the vehicle will remain mechanically operational and sound for at least sixty days or three thousand miles of operation, whichever comes first. Thus, the plaintiffs remedy under this statute is the cost of the parts and labor to repair the truck so as to fulfill the warranty. The record indicates that cost of repair of the truck in this case would amount to approximately $2000. The judgment could not have been rendered on the basis of this count because the judgment included repayment to the plaintiff of the purchase price of the truck.\nWith respect to count three, CUTPA allows for the recovery of actual damages, and, within a court’s discretion, punitive damages, costs and reasonable attorney’s fees, and injunctive or other equitable relief. General Statutes § 42-110g. The plaintiff’s actual damages in this case would amount to the cost of repairing his vehicle plus the cost of reasonable alternative transportation. Again, the court rendered a judgment that included repayment to the plaintiff of the purchase price of the truck.\nThe damages awarded are most like those claimed in the second count seeking rescission. “Rescission, simply stated, is the unmaking of a contract. It is a renouncement of the contract and any property *642obtained pursuant to the contract, and places the parties, as nearly as possible, in the same situation as existed just prior to the execution of the contract.” Kavarco v. T.J.E., Inc., 2 Conn. App. 294, 299, 478 A.2d 257 (1984). If rescission is chosen as a remedy, it usually operates as a waiver of the right to sue for damages. Duksa v. Middletown, 192 Conn. 191, 204, 472 A.2d 1 (1984); see also Kavarco v. T.J.E., Inc., supra, 299. Usually, a judgment cannot stand if both damages and rescission are awarded. Duksa v. Mid-dletown, supra, 206.\nThe effect of the judgment in this case is that the parties were returned, as nearly as possible, to the position they were in prior to the execution of the contract for the sale and purchase of the truck. Moreover, the damages awarded for the improvements to the truck, insurance and alternate transportation simply constituted restitution for consequential expenses incurred prior to the repudiation of the contract and may properly be awarded in an action seeking rescission. Kavarco v. T.J.E., Inc., supra, 298 n.4. The judgment failed, however, to address the ownership of the truck.\nIf there is a judicial action of a trial court that requires a change in a judgment because it affects justice, an appellate court should effect that change. Simpson v. Y.M.C.A. of Bridgeport, 118 Conn. 414, 172 A. 855 (1934); Connecticut Mortgage & Title Guaranty Co. v. DiFrancesco, supra. Practice Book § 375 provides in relevant part: “Upon a default, the plaintiff can have no greater relief than that demanded in his complaint . . . .” Here, the plaintiff obtained more relief than that demanded in his complaint. Under the terms of the judgment, the plaintiff obtained the money damages needed to place him in the legal position rescission requires, and retained ownership of the truck as well. The judgment, therefore, must be corrected.\n*643The judgment is reversed and the case is remanded with direction to render judgment as on file except as modified to direct the plaintiff to transfer title to the truck, VIN 3B4GW12T4GM623264, to the defendant.\nIn this opinion the other judges concurred.\n\n This claim is based on a breach of the statutory warranty created by the provisions of the Used Automobiles Warranties Act, General Statutes §§ 42-220 through 42-226. General Statutes § 42-221 (b) provides in pertinent part: “Each contract entered into by a dealer for the sale of a used motor vehicle which has a cash purchase price of five thousand dollars or more shall include an express warranty, covering the full cost of both parts and labor, that the vehicle is mechanically operational and sound and will *636remain so for at least sixty days or three thousand miles of operation, whichever period ends first, in the absence of damage resulting from an automobile accident or from misuse of the vehicle by the consumer. A dealer may not limit a warranty covered by this section by the use of such phrases as ‘fifty-fifty’, ‘labor only’, ‘drive train only’, or other words attempting to disclaim his responsibility.”\nIt is undisputed that the plaintiff owned the truck for less than sixty days and had driven it less than 3000 miles when the vehicle’s engine failed.\n\n\n Practice Book § 358 provides for judgments after default for failure to appear in contract actions.\n\n\n This sum was based, in part, on the plaintiff’s claim that CUTPA authorized treble damages. Although CUTPA provides for punitive damages, it does not expressly provide for treble damages. General Statutes § 42-110g (a).\n\n\n This sum is the total of the purchase price of the truck, the cost of improvements made to it before it became inoperable, the cost of alternate transportation after it became inoperable, and the cost of insurance on the truck.\n\n\n At the time of the execution, the judgment was valid. See Mulholland v. Mulholland, 31 Conn, App. 214, 220, 624 A.2d 379 (1993).\n\n\n Practice Book § 377, which mirrors General Statutes § 52-212, provides: “Any judgment rendered or decree passed upon a default or nonsuit may be set aside within four months succeeding the date on which it was rendered or passed, and the case reinstated on the docket on such terms in respect to costs as the court deems reasonable, upon the written motion of any party or person prejudiced thereby, showing reasonable cause, or that a good cause of action or defense in whole or in part existed at the time of the rendition of such judgment or the passage of such decree, and that the plaintiff or the defendant was prevented by mistake, accident or other reasonable cause from prosecuting or appearing to make the same. Such written motion shall be verified by the oath of the complainant or his attorney, shall state in general terms the nature of the claim or defense and shall particularly set forth the reason why the plaintiff or the defendant failed to appear. The court shall order reasonable notice of the pendency of such written motion to be given to the adverse party, and may enjoin him against enforcing such judgment or decree until the decision upon such written motion.\n“If the court opens a nonsuit entered pursuant to Sec. 363, the court as part of its order may extend the time for filing pleadings or disclosure.”\n\n", "ocr": true, "opinion_id": 7855172 } ]

"1993-08-24"

[ "32 Conn. App. 644" ]

[ { "author_str": "Schaller", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nSchaller, J.\nThe defendants appeal from the judgment, rendered after a court trial, in favor of the plaintiffs1 with respect to their claims of breach of contract, fraud and unfair trade practices in violation of General Statutes § 42-110a et seq. (CUTPA). The dis-positive issue in this case is whether the trial court improperly determined that the defendant owed the plaintiff a fiduciary duty and that the defendant breached that duty. We reverse the judgment of the trial court and remand the case for a new trial.\nThe following facts are pertinent to this appeal. The plaintiff was the founder and owner of La Bagatelle, a retail jewelry business. She operated the business through two stores located in New Canaan and Stamford. From 1980 until August 2, 1985, the defendant worked, first, as a sales clerk and then as the manager of La Bagatelle. J. Elliot Smith owned the building in New Canaan and leased the premises to the plaintiff. By its express terms, the lease expired on August 31, 1985.\nThe parties entered into discussions pertaining to the purchase of the jewelry business by the defendant. These discussions were reduced to writing in the form of a binder agreement signed by the parties on April 15, *6461985. Pursuant to that agreement, the defendant agreed to pay $95,000 for the business, $475 of which was paid on the signing of the agreement.2 The agreement was also conditioned on the defendant’s ability to obtain a lease for the existing store premises at 17 South Avenue in New Canaan for a period of at least five years, the lease to commence on or before September 1,1985. This condition was particularly important because the existing lease expired on August 31,1985.\nIn April, 1985, the plaintiff wrote to the landlord, Smith, asking him to negotiate directly with the defendant for a lease of the premises.3 In a letter dated May 13, 1985, the defendant wrote to Smith and explained her interest in obtaining a lease of the premises. These efforts, however, did not result in the procurement of a lease, leaving the condition in the agreement unfulfilled.\nIn early July, the plaintiff and the defendant discussed the progress of the lease negotiations. The defendant indicated that she had heard rumors that the landlord intended to sell the building in which the jewelry store was located.4 The plaintiff became increasingly apprehensive about whether the landlord would enter into a lease agreement with the defendant. On July 13,1993, the plaintiff contacted the landlord’s wife and learned that the lease proposal was *647forthcoming. The plaintiff relayed the substance of this conversation to the defendant.\nOn July 22,1985, the plaintiff prepared a document for the defendant that listed four options regarding the sale of the business. The document stated that the defendant could (1) “[ejxecute original contract with exceptions as stated,” (2) “[b]uy jewelry & fixtures only,” (3) “[b]uy name (with jewelry & fixtures),” and (4) “[b]uy nothing.” The document further stated that July 27 was the “date for answer.”\nOn July 25, 1985, the defendant attempted to telephone Smith. She spoke with his wife who assured the defendant that the lease was “on the way.” The next day, the plaintiff conferred with the defendant, and the parties discussed the four options set forth in the July 22 document. At that time, the defendant elected to “[b]uy nothing.” She did so without mentioning that, on the previous day, Smith’s wife had assured her of the prompt arrival of the lease proposal.\nOn July 27,1985, the plaintiff attempted to telephone the landlord, but could reach only his wife. She informed the plaintiff of her most recent telephone conversation with the defendant and that she had assured the defendant that the lease was on the way.\nAfter her conversation with the landlord’s wife, the plaintiff confronted the defendant, upset that the defendant had not mentioned the assurances of July 25. The plaintiff explained that she now intended to secure the lease for herself. Subsequently, the defendant received a lease offer from Smith. She declined, however, to revive the proposed sale of the jewelry business. On August 2, 1985, the plaintiff terminated the defendant’s employment with La Bagatelle. The defendant then continued to negotiate a lease agreement with Smith. On August 15,1985, these negotia*648tions culminated in an agreement with Smith for the lease of property at 17 South Avenue.\nIn January, 1992, the plaintiff filed a substitute complaint alleging (1) breach of contract, (2) intentional nondisclosure, (3) misrepresentation, (4) unjust enrichment, (5) unfair and deceptive trade practices, and (6) tortious interference with the plaintiff’s attempt to renew a lease agreement. The case proceeded to trial.\nIn the course of the trial, breach of fiduciary duty emerged as an issue. It was first indicated that the plaintiff’s claims might involve a breach of fiduciary duty on the first day of trial. When the plaintiff indicated that breach of fiduciary duty was involved, the defendant responded, “I am hearing a breach of fiduciary duty claim that — I have the complaint in front of me, Your Honor. There are six counts in this complaint. It is not here.” The court responded, “Don’t bother with that.... I am not going to allow [the evidence] . . . for anything that flows from a breach of fiduciary duty at this point in time.”\nThe issue of breach of fiduciary duty again reared its head on the third and final day of trial:\n“The Court: Let me ask you. Did [the defendant] have a duty to [the plaintiff] to brief her on the entire conversation that she had with Mrs. Smith?\n“[Defense Counsel]: I don’t believe so. No.\n“The Court: That is where I disagree with you. I think she did. And that is the crux of the case as far as I am concerned ....\n“[Defense Counsel]: Your Honor, just on this issue, there is no claim — the complaint has six counts, Your Honor. There is no claim of breach of fiduciary duty.\n“The Court: Well, there doesn’t have to be if there is a principal-agent relationship. ” (Emphasis added.)\n*649Ultimately, the court rendered judgment for the plaintiff and issued an accompanying memorandum of decision. In its memorandum, the court found that the defendant had failed to sustain her burden of proving fair dealing and, thus, that the defendant had breached her fiduciary duty to the plaintiff. With respect to the breach of contract claim, the court found for the plaintiff, reasoning that the claim was “inextricably bound up with a consideration of the legal relationship” of the parties. Similarly, the court determined that the defendant, as a fiduciary, had a duty to speak to the plaintiff regarding assurances by the landlord’s wife that the lease was forthcoming. In this regard, the court emphasized that “[t]he law demands a high standard of conduct from fiduciaries in situations dealing with nondisclosure.” Finally, the court found that the defendant engaged in unfair and deceptive acts in violation of § 42-110a et seq.5\nIn its memorandum of decision, the court discussed the issue of damages. Having determined that the defendant breached the contract, the court awarded the plaintiff $71,013.45 representing the benefit of the bargain. The court further awarded the plaintiff prejudgment interest in the amount of $49,461.09. Pursuant to CUTPA, the court awarded the plaintiff $66,000 in attorney’s fees and costs. From this judgment, the defendant appealed.\nI\nThe defendant challenges the propriety of the trial court’s finding as to breach of fiduciary duty. She posits that, because the plaintiff never alleged breach of fiduciary duty, the trial court improperly injected this theory of liability into the case. She also asserts that the *650court’s finding that the defendant owed the plaintiff a fiduciary duty permeates the court’s ultimate determination that the defendant was liable for breach of contract and fraud.6 We agree.\nA fundamental tenet in our law is that the plaintiff’s complaint defines the dimensions of the issues to be litigated. “[T]he right of a plaintiff to recover is limited to the allegations of [her] complaint. . . .” (Citations omitted; internal quotation marks omitted.) Robert S. Weiss & Associates, Inc. v. Wiederlight, 208 Conn. 525, 537, 546 A.2d 216 (1988); Vinchiarello v. Kathuria, 18 Conn. App. 377, 383, 558 A.2d 262 (1989). “ ‘The purpose of the complaint is to limit the issues to be decided at the trial of a case and is calculated to prevent surprise. ... A plaintiff may not allege one cause of action and recover upon another. Facts found but not averred cannot be made the basis for a recovery. . . . (Citations omitted; internal quotation marks omitted.)’ ” Mitchell v. Mitchell, 31 Conn. App. 331, 334, 625 A.2d 828 (1993). “A judgment in the absence of written pleadings defining the issues would not merely be erroneous, it would be void.” Telesco v. Telesco, 187 Conn. 715, 720, 447 A.2d 752 (1982); Vinchiarello v. Kathuria, supra, 384; Tehrani v. Century Medical Center, 7 Conn. App. 301, 308, 508 A.2d 814 (1986).\nOur courts have further noted the requirements necessary in order to plead properly breach of fiduciary duty. For example, in Zuch v. Connecticut Bank & Trust Co., 5 Conn. App. 457, 463-64, 500 A.2d 565 (1985), the plaintiff alleged only that, pursuant to the trust agreement, the defendant undertook a fiduciary relationship to manage, invest and distribute the trust funds for the benefit of the plaintiff. The trial court ruled that the scope of the accounting should include *651a justification by the defendant of its investment policies used to manage the trust. Id., 463. We held that the trial court’s ruling exceeded the scope of the allegations of the complaint and injected the issue of breach of fiduciary duty. Id., 463-64. Absent an allegation of breach of fiduciary duty, that case concerned only the scope of an accounting due by a trustee. Id., 464. Under existing law, therefore, a plaintiff must allege breach of fiduciary duty with specificity before liability can attach on such grounds. See also Solomon v. Aberman, 196 Conn. 359, 385-86 n.21, 493 A.2d 193 (1985) (complaint alleging tortious interference with contractual and beneficial relationships does not include implicitly a claim of breach of fiduciary obligations).\nThe importance of a specific allegation of breach of fiduciary duty is evident in the fact that the existence of a fiduciary duty shifts the burden of proof to the fiduciary. “Once a [fiduciary] relationship is found to exist, the burden of proving fair dealing properly shifts to the fiduciary. . . . Furthermore, the standard of proof for establishing fair dealing is not the ordinary standard of fair preponderance of the evidence, but requires proof either by clear and convincing evidence, clear and satisfactory evidence or clear, convincing and unequivocal evidence.” (Citations omitted; internal quotation marks omitted.) Dunham v. Dunham, 204 Conn. 303, 322-23, 528 A.2d 1123 (1987).\nIn the present case, it is undisputed that the plaintiff did not allege breach of fiduciary duty in her complaint. Nevertheless, breach of fiduciary duty formed the basis of the trial court’s judgment. The court specifically found “both a principal-agent and a fiduciary relationship between the parties and that the defendant . . . failed to sustain the burden of proof . . . .” Clearly this digression prejudiced the defendant. The injection of the fiduciary duty issue resulted in a reallocation of the burden of proof that required the defend*652ant to prove fair dealing. Moreover, on the first day of trial, the court assured the defendant that breach of fiduciary duty was not an issue in the case. Throughout most of the trial, therefore, the defendant was unaware that breach of fiduciary duty was a critical issue. We conclude that the trial court improperly based its decision on breach of fiduciary duty.\nThe next question is whether the trial court’s finding as to breach of fiduciary duty affected the remaining aspects of the judgment. In this regard, we recently upheld a trial court judgment rendered on a claim of fraud, despite our conclusion that the court’s analysis based on constructive fraud exceeded the scope of the plaintiffs complaint. Mitchell v. Mitchell, supra. In that case, however, because the trial court determined that the plaintiff proved both actual and constructive fraud, the inappropriateness of the constructive fraud discussion was immaterial. Id., 335-36. The issue in the present case, therefore, is whether the trial court’s judgment depends on the trial court’s improper determination that the defendant breached her fiduciary duty to the plaintiff. A close reading of the memorandum of decision reveals that the trial court’s findings of breach of contract and fraud are wholly dependent on the court’s fiduciary duty analysis.\nThere is no doubt that the court’s finding with respect to breach of fiduciary duty influenced the concomitant finding that the defendant breached the contract to buy the jewelry business. The trial court stated in its memorandum of decision, “Whether the defendant’s conduct constituted a breach of contract is inextricably bound up with a consideration of the legal relationship that the plaintiff and the defendant occupied with one another.” The court then directed its attention to the issue of fiduciary duty and concluded that the defendant had failed to sustain her burden of proving fair deal*653ing. We conclude that the court’s improper reliance on breach of fiduciary duty affected its breach of contract finding.\nSimilarly, the trial court’s focus on the fiduciary duty issue is an integral aspect of its finding of fraud. Again, we refer to the memorandum of decision wherein the court found as follows: “In view of the court’s finding of an agency and therefore a fiduciary relationship, the defendant clearly had a duty to speak to the plaintiff concerning this matter.” (Emphasis added.) In discussing the defendant’s election to rescind the contract pursuant to the June 22,1985 options, the trial court further stated, “the defendant’s right to rescind was vitiated by her breach of fiduciary duty by failing to disclose the contents of her conversation of July 25 with the landlord.” On this basis, the trial court ultimately found that the defendant’s nondisclosure and misrepresentation constituted fraud. Thus, the trial court’s finding of fraud hinged on the finding of breach of fiduciary duty.\nAs the trial court noted, “It is unnecessary to allege any promise or duty that the law implies from the facts pleaded. Practice Book § 110. In this case, however, the employer-employee relationship does not necessarily imply the existence of a fiduciary obligation.”7\nWe also recognize that a party’s failure to object to any variance between the pleadings and proof constitutes a waiver of any objection. Tedesco v. Stamford, *654215 Conn. 450, 461, 576 A.2d 1273 (1990). Furthermore, “[o]nly material variances, those which disclose a departure from the allegations in some matter essential to the charge or claim, warrant the reversal of a judgment. ...” (Internal quotation marks omitted.) Id. On the first day of trial, when it appeared that the plaintiff might be introducing evidence to establish breach of fiduciary duty, the defendant expressed her concern to the court that any such proof would exceed the scope of the complaint. In response, the trial court assured the defendant that the evidence would not be admitted “for anything that flows from a breach of fiduciary duty.” Then, on the third and final day of trial, it became apparent that, in the trial court’s view, breach of fiduciary duty lay at the heart of the case. In view of the trial court’s assurances, we cannot conclude on these facts that the defendant failed to object to the variance between the pleadings and the proof. Clearly the court’s approach to the issue of fiduciary duty prejudiced the defendant, since a finding of fiduciary duty shifts the burden of proof to the fiduciary. Dunham v. Dunham, supra.\nWe conclude that the trial court improperly rendered judgment on the basis of a legal theory that the plaintiff never asserted in the complaint, namely, breach of fiduciary duty. Because the trial court based its judgment on breach of fiduciary duty, a matter not pleaded by the plaintiff, we reverse the judgment and remand the case for a new trial. See, e.g, Lundberg v. Kovacs, 172 Conn. 229, 233, 374 A.2d 201 (1977) (setting aside the judgment and ordering a new trial where variance between pleading and proof was neither immaterial, nor corrected by amendment or waived); Francis v. Hollauer, 1 Conn. App. 693, 695-97, 475 A.2d 326 (1984) (setting aside judgment and ordering a new trial *655where judgment was based on a cause of action different from any alleged in the complaint).8\nII\nThe defendant also claims that the trial court improperly applied CUTPA in awarding the plaintiff’s attorney’s fees and costs. According to the defendant, the one time sale of a small retail business does not constitute a trade practice within the aegis of CUTPA. We do not consider this issue because the plaintiff has not pleaded properly a cause of action under CUTPA.\nIt is well settled that “[i]f the facts that the plaintiff alleges are insufficient to frame [the] causes of action, the plaintiff cannot prevail.” Quimby v. Kimberly Clark Corporation, 28 Conn. App. 660, 669, 613 A.2d 838 (1992), citing Ivey, Barnum & O’Mara v. Indian Harbor Properties, Inc., 190 Conn. 528, 532, 461 A.2d 1369 (1983). “[T]he failure to include a necessary allegation in a complaint precludes a recovery by the plaintiff under that complaint.” Simsbury Turnpike Realty Co. v. Great Atlantic & Pacific Tea Co., 39 Conn. Sup. 367, 369, 465 A.2d 331 (1983) (Appellate Session). “In order to allege a CUTPA violation properly, the plaintiff must allege, inter alia, that the acts complained of were performed in a ‘trade or business.’ See General Statutes § 42-110b; Web Press Services Corporation v. New London Motors, Inc., 203 Conn. 342, 354, 525 A.2d 57 (1987).” Quimby v. Kimberly Clark Corporation, supra.\nIn the present case, the plaintiff’s complaint is devoid of any allegation that, the acts complained of were performed in a “trade or business.” Having failed to frame a cause of action under CUTPA, the plaintiff cannot *656prevail on this claim. Accordingly, we do not address the issue of whether CUTPA applies to the one time purchase and sale of a small business.\nThe judgment is reversed and the case is remanded for a new trial.\nIn this opinion the other judges concurred.\n\n Because the plaintiffs’ claims stem chiefly from a transaction involving the named plaintiff, Cleta Pergament, and the named defendant, Baerbel Green, we will refer to the named parties as the plaintiff and the defendant.\n\n\n Additional terms in the agreement included, a down payment of 10 percent, which was later reduced, and a contingency in which the contract was conditioned on obtaining financing.\n\n\n In addition to writing the letter, the plaintiff testified as follows:\n“[Plaintiffs Counsel]: Who did you believe was going to undertake the obligation of getting a lease after you had written these letters?\n“[Plaintiff]: Mrs. Green [the defendant],\n“[Plaintiffs Counsel]: And why did you believe that was going to happen?\n“[Plaintiff]: Well, to begin with, I wouldn’t want to get the lease. The lease was to be in her name. We had agreed upon that. And two people can’t negotiate a lease. ’’ (Emphasis added.)\n\n\n These rumors never proved to be true.\n\n\n In view of its ruling with respect to the other claims, the trial court did not reach the claim of tortious interference with the plaintiffs attempt to renew the lease.\n\n\n We note that the plaintiff’s claim of fraud includes the allegations of nondisclosure and misrepresentation.\n\n\n Furthermore, while evidence indicated that the plaintiff asked the landlord to negotiate the lease directly with the defendant, this does not necessarily indicate an agency relationship between the parties. The plaintiffs testimony indicated that she did not want to be a party to the lease negotiations because the lease was to be in the defendant’s name. See footnote 8. Thus, the defendant was not negotiating the lease on behalf of the plaintiff, though the plaintiff stood to benefit from the ultimate sale of the business.\n\n\n In this case, a remand for new trial is particularly appropriate. An outright reversal requiring judgment in favor of the defendant would be unfair to the plaintiff, since the trial court is largely responsible for the improper injection of the fiduciary duty issue.\n\n", "ocr": true, "opinion_id": 7855342 } ]

"1994-01-25"

[ "33 Conn. App. 449" ]

[ { "author_str": "Lavery", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nLavery, J.\nThe petitioner appeals from the denial of his petition for a writ of habeas corpus. He claims that the habeas court improperly determined that (1) the petitioner’s guilty plea was valid and made knowingly and voluntarily, and (2) the petitioner received effective assistance of counsel. We affirm the judgment of the habeas court.\n*450The relevant facts are undisputed. On February 14, 1984, after having been refused entry into the house of his estranged girlfriend’s parents several times, the petitioner returned with his cousin. The petitioner carried a pistol, his cousin carried a rifle and they both wore stocking masks. After kicking in the front door, the petitioner shot his girlfriend’s stepfather, killing him. The petitioner then threw the murder weapon into a river behind the high school.\nBefore he died, the victim identified the petitioner to police, as did the former girlfriend. After his arrest, the petitioner confessed to the murder. While awaiting trial, the petitioner wrote letters to the presiding judge and state’s attorney in which he admitted his crime and sought leniency. He pleaded guilty under the Alford1 doctrine on September 18, 1984, pursuant to a plea agreement under which he was sentenced to twenty-eight years in prison. During the plea canvass, the petitioner stated that he understood the charges against him and the Alford doctrine, and that he had discussed the charges and his plea with his attorney, his mother and an incarcerated uncle. The petitioner did not appeal.\nMore than six years later, the petitioner sought habeas relief. After a hearing, the trial court denied the petition. This appeal resulted.\nI\nThe petitioner claims that his plea was not made knowingly and voluntarily and was, therefore, invalid. To be valid, guilty pleas must be made voluntarily and knowingly. State v. Gilnite, 202 Conn. 369, 381, 521 A.2d 547 (1987). The validity of guilty pleas can be challenged before sentencing pursuant to Practice Book *451§ 7202 and on direct appeal. The petitioner, however, first attacked his plea in this habeas petition. “[T]his court strongly disfavor[s] collateral attacks upon judgments because such belated litigation undermines the important principle of finality. . . .” (Citations omitted; internal quotation marks omitted.) Daley v. Hartford, 215 Conn. 14, 27, 574 A.2d 194, cert. denied, 498 U.S. 982, 111 S. Ct. 513, 112 L. Ed. 2d 525 (1990). Therefore, we will review the claim only where the petitioner demonstrates “good cause for the failure to preserve a claim at trial and actual prejudice resulting from the alleged constitutional violation. . . .” (Citations omitted.) McIver v. Warden, 28 Conn. App. 195, 198, 612 A.2d 108, cert. denied, 224 Conn. 906, 615 A.2d 1048 (1992), quoting Giannotti v. Warden, 26 Conn. App. 125, 129, 599 A.2d 26 (1991), cert. denied, 221 Conn. 905, 600 A.2d 1359 (1992).\nCause turns on “whether the [petitioner] can show that some objective factor external to the defense impeded counsel’s efforts to comply with the State’s procedural rule. . . . [For example,] a showing that the factual or legal basis for a claim was not reasonably available to counsel . . . would constitute cause under this standard.” Jackson v. Commissioner of Correction, 227 Conn. 124, 137, 629 A.2d 413 (1993), quoting Murray v. Carrier, 477 U.S. 478, 488, 106 S. Ct. 2639, 91 L. Ed. 2d 397 (1986). The cause and prejudice standard, however, “is designed to prevent full review of issues in habeas corpus proceedings that counsel did not raise at trial or on appeal for reasons of tactics, inadvertance or ignorance. ” (Emphasis *452added.) Valeriano v. Bronson, 209 Conn. 75, 83, 546 A.2d 1380 (1988).\nThe petitioner has failed to demonstrate good cause. He claimed that he was surprised to learn of the actual crimes charged during the plea canvass. He was present, however, when the charges against him were read during his probable cause hearing, and again when he entered his plea. Further, his trial counsel testified that he thoroughly discussed the charges with the petitioner. The petitioner admitted as much during the plea canvass. The record undermines the petitioner’s claims regarding his knowledge of the crimes of which he was accused.\nThe petitioner also claimed that he was never told that he could challenge his plea before sentencing or on appeal. The petitioner’s trial counsel, however, testified that he “took some pains” in discussing the petitioner’s options and eventualities in light of the petitioner’s age and academic background. Further, the petitioner admits that, after he learned of the possibility of appeal and habeas corpus, he waited almost six years to file his petition. He testified that he did so to be sure that he “knew enough about it.” Ignorance, however, does not establish good cause. See id.\nThus, the petitioner failed to establish good cause for his failure to raise this issue at trial or on direct appeal. Cause and prejudice must be established conjunctively. Johnson v. Commissioner of Correction, 218 Conn. 403, 419, 589 A.2d 1214 (1991). Because we find that the petitioner failed to demonstrate good cause for failing to raise this claim on direct appeal, we need not address the claim of prejudice, and we cannot review the petitioner’s claim.\nII\nThe petitioner next claims that he received ineffective assistance of counsel. He maintains that trial coun*453sel was deficient by failing (1) to adequately explain the plea and advising him to accept it, and (2) to pursue a defense of extreme emotional disturbance.\n“We first consider our scope of review.3 Although the underlying facts found by the habeas court may not be disturbed unless they were clearly erroneous, whether those facts constituted a violation of the petitioner’s rights under the sixth amendment is a mixed determination of law and fact that requires the application of legal principles to the historical facts of this case. ... As such, that question requires plenary review by this court unfettered by the clearly erroneous standard. ...” (Citations omitted; internal quotation marks omitted.) Daniels v. Warden, 28 Conn. App. 64, 68, 609 A.2d 1052, cert. denied, 223 Conn. 924, 614 A.2d 820 (1992).\nThe right to effective assistance of counsel is firmly grounded in the sixth and fourteenth amendments to the United States constitution.4 Falby v. Commissioner of Correction, 32 Conn. App. 438, 629 A.2d 1154 (1993). Our Supreme Court has adopted the two-pronged analysis of Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), to evaluate the effectiveness of counsel’s assistance. Davis v. Warden, 32 Conn. App. 296, 302, 629 A.2d 440, cert. denied, 227 Conn. 924, 632 A.2d 701 (1993). “Under this analysis . . . the petitioner must demonstrate both (1) deficient performance and (2) actual prejudice.” Id.\n*454In order to prove his counsel’s performance was deficient, the petitioner must first establish that his counsel made errors so serious as to cease functioning as the constitutionally guaranteed counsel. Phillips v. Warden, 220 Conn. 112, 132, 595 A.2d 1356 (1991). “The petitioner must thus show that counsel’s representation fell below an objective standard of reasonableness considering all of the circumstances. . . .We will indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. The petitioner must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” (Citations omitted; internal quotation marks omitted.) Davis v. Warden, supra.\nThe first ground on which the petitioner claims that his trial counsel’s performance was deficient is that counsel failed to explain the plea adequately. The record, however, undermines his claim. The petitioner’s trial counsel testified that he thoroughly reviewed the charges with the petitioner, taking special pains to do so in light of the petitioner’s age and academic background. Further, trial counsel knew that the petitioner had discussed the plea with his mother and an uncle incarcerated at Somers prison. During the plea canvass, the petitioner admitted that he had discussed the plea with his counsel at length and that he was satisfied with his counsel’s advice. We must presume that counsel’s conduct falls within the wide range of reasonable professional assistance. Strickland v. Washington, supra, 689. The record reveals nothing that would taint, let alone defeat, this presumption.\nNext, the petitioner claims that his trial counsel’s performance was deficient because counsel advised the petitioner to accept the plea. Here too, the record disproves the claim. The state’s case against the petitioner consisted of two eyewitnesses, a confession and two *455inculpatory letters. Had he gone to trial, the petitioner would have faced a jail term far longer than twenty-eight years. Under the circumstances, accepting the plea can be considered sound trial strategy. The petitioner’s claim fails.\nThe petitioner further claims that his trial counsel’s performance was deficient due to his failure to pursue a potential defense of extreme emotional disturbance. Effective assistance of counsel includes competent pretrial investigation. Summerville v. Warden, 29 Conn. App. 162, 171, 614 A.2d 842, cert. granted on other grounds, 224 Conn. 918, 617 A.2d 172, 173 (1992). “[Cjounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments.” Id., 172-73.\nThe petitioner’s trial counsel had a psychiatrist evaluate the petitioner. The psychiatrist ruled out an insanity defense but reported that he needed more information to evaluate a possible defense of extreme emotional disturbance. The petitioner’s trial counsel decided not to pursue that possibility further. At the habeas hearing, the trial counsel explained that his decision was based on the strength of the state’s case. The petitioner had confessed to the police and written inculpatory letters to the judge and the state’s attorney. Further, before he died, the victim identified the petitioner, as did the petitioner’s girlfriend. In short, trial counsel believed that going to trial would have been “suicide” for the petitioner.\nTrial counsel’s decision to forgo further investigation was also based on his belief that a defense of extreme *456emotional disturbance would not have been possible. Because the petitioner had been denied entry to the victim’s home several times earlier in the day, and because he returned armed and wearing a mask, trial counsel believed a claim of extreme emotional disturbance would be fruitless. Further, the calculated manner in which the petitioner disposed of the murder weapon would have undermined the claim.\nFinally, if the petitioner had gone to trial, he risked a much greater sentence than the twenty-eight years imposed. In light of the substantial evidence against the petitioner, the facts that undermined a claim of extreme emotional disturbance and the potentially long sentence to which the petitioner was exposed, the petitioner’s trial counsel made a reasonable decision not to pursue a defense of extreme emotional disturbance. Therefore, counsel’s assistance was constitutionally adequate.\nTo succeed on this claim, the petitioner had to prove both prongs of the Strickland test. Because the petitioner has failed to demonstrate that his trial counsel’s conduct was deficient, we need not consider whether he was prejudiced thereby. His claim of ineffective assistance, therefore, must fail.\nThe judgment is affirmed.\nIn this opinion the other judges concurred.\n\n North Carolina v. Alford, 400 U.S. 25, 31, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).\n\n\n Practice Book § 720 provides in relevant part: “A defendant may withdraw his plea of guilty ... as a matter of right until the plea has been accepted. After acceptance, the judicial authority shall allow the defendant to withdraw his plea upon proof of one of the grounds in Sec. 721. A defendant may not withdraw his plea after the conclusion of the proceeding at which the sentence was imposed.”\n\n\n The petitioner need not satisfy the cause and prejudice test to obtain review of his claim of ineffective assistance of counsel because, if a petitioner succeeds on the merits of his claim, he will necessarily have proven both cause and prejudice. Valeriano v. Bronson, 209 Conn. 75, 83-84, 546 A.2d 1380 (1988).\n\n\n While effective assistance of counsel is also guaranteed by article first, § 8, of the Connecticut constitution, the petitioner frames his claim only under federal law. We shall likewise limit our review.\n\n", "ocr": true, "opinion_id": 7855442 } ]

"1994-09-06"

[ "35 Conn. App. 839" ]

[ { "author_str": "Schaller", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nSchaller, J.\nThe defendant appeals from the judgment of conviction, rendered after a jury trial, of robbery in the second degree in violation of General *841Statutes § 53a-135 (a) (l),1 and of conspiracy to commit robbery in the second degree in violation of General Statutes §§ 53a-482 and 53a-135 (a) (1). The defendant was charged in a substitute information with robbery in the first degree in violation of General Statutes § 53a-134 (a) (3),3 and conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 and 53a-134 (a) (3). The trial court instructed the jury on these charges, as well as robbery in the second degree and conspiracy to commit robbery in the second degree as lesser included offenses. The jury acquitted the defendant of the charges of robbery in the first degree and conspiracy to commit robbery in the first degree.\nThe defendant claims that the trial court improperly (1) charged the jury on robbery in the second degree and conspiracy to commit robbery in the second degree as lesser included offenses, (2) failed to charge the jury on robbery in the third degree in violation of General *842Statutes § 53a-1364 and on conspiracy to commit robbery in the third degree in violation of General Statutes §§ 53a-48 and 53a-136, as lesser included offenses, and (3) determined that Wharton’s rule does not bar convictions of both robbery in the second degree and conspiracy to commit robbery in the second degree. We reverse the judgment of the trial court on the first claim.\nThe jury reasonably could have found the following facts. On the evening of October 30,1991, James Frate met the defendant and Alex Nieves in a parking lot in West Haven and discussed stealing a pocketbook. Frate drove the defendant and Nieves in a white 1988 Chrysler New Yorker to a driveway on Claudia Drive. At approximately 11:30 p.m., the defendant and Nieves left the vehicle, walked up a hill to the nearby Denny’s Restaurant on Saw Mill Road and positioned themselves opposite one another in the parking lot. After about five minutes, the victim exited the restaurant. As she walked to her car, the defendant and Nieves approached her from opposite directions. The defendant pushed the victim to the ground and grabbed her pocketbook. The victim then reentered the restaurant and called the police.\nThe two men fled and Frate saw them running down the hill. The defendant and Nieves entered the vehicle and told Frate to drive. Charles Hoey, who witnessed the incident from his car as he was stopped at a traffic light near the restaurant, followed the vehicle driven by Frate. Before losing sight of it, Hoey wrote down the license plate number. He later informed the police of that number.\nI\nThe defendant contends that the trial court improperly instructed the jury that robbery in the second *843degree pursuant to § 53a-135 (a) (1) and conspiracy to commit robbery in the second degree pursuant to §§ 53a-48 and 53a-135 (a) (1) are lesser included offenses of robbery in the first degree pursuant to § 53a-134 (a) (3) and conspiracy to commit robbery in the first degree pursuant to §§ 53a-48 and 53a-134 (a) (3) as set forth in the information. As a result, the defendant alleges that he lacked notice of the second degree charges in violation of the sixth amendment to the United States constitution.5 Whether robbery in the second degree in violation of § 53a-135 (a) (1) and conspiracy to commit robbery in the second degree in violation of §§ 53a-48 and 53a-135 (a) (1) can be lesser included offenses of robbery in the first degree in violation of § 53a-134 (a) (3) and conspiracy to commit robbery in the first degree in violation of §§ 53a-48 and 53a-134 has not previously been explored by our appellate courts.\n“When examining a claim of insufficient notice of a lesser included offense, we are limited to an examination of the charging documents, and do not examine the evidence presented at trial. State v. Jacobowitz, 182 Conn. 585, 593, 438 A.2d 792 (1981); State v. Kitt, [8 Conn. App. 478, 487, 513 A.2d 731 (1986), cert. denied, 202 Conn. 801, 518 A.2d 648 (1987).]” State v. Hudson, 14 Conn. App. 472, 476, 541 A.2d 539 (1988). “ ‘The test for determining whether one crime is a lesser included offense of another crime is whether *844it is possible to commit the greater offense in the manner described in the information or bill of particulars without having first committed the lesser.’ State v. Hodge, 201 Conn. 379, 385, 517 A.2d 621 (1986); State v. Whistnant, [179 Conn. 576, 584, 427 A.2d 414 (1980)].” State v. Falcon, 26 Conn. App. 259, 264, 600 A.2d 1364, cert. denied, 211 Conn. 911, 602 A.2d 10 (1992). Because no bill of particulars was requested or filed, the inquiry is restricted to the wording of the information. State v. Neve, 174 Conn. 142, 145, 384 A.2d 332 (1977). We review the claims in turn.\nA\nThe pertinent part of the information on robbery in the first degree is as follows: “Eric Jones did commit a Robbery and in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime used and threatened the use of a dangerous instrument, to wit: a knife, in violation of section 53a-134 (a) (3) of the Connecticut General Statutes.” (Emphasis added.) The information basically restates the elements set forth in § 53a-134 (a), which states in part that “in the course of the commission of the crime of robbery as defined in section 53a-133 or of immediate flight therefrom, he or another participant in the crime ... (3) uses or threatens the use of a dangerous instrument . . . .”\nProof of robbery in the second degree in violation of § 53a-135 (a) (1) likewise requires proof of robbery pursuant to § 53a-133, but also requires that the accused be “aided by another person actually present . . . .” Here, the key issue is whether the defendant could have committed robbery in the first degree in accordance with the language of the information that he “or another participant in the crime used and threatened the use of a dangerous instrument” without also having committed robbery in the second degree in which *845he was “aided by another person actually present.” (Emphasis added.) We conclude that the defendant did not have to commit robbery in the second degree in violation of § 53a-135 (a) (1) in order to commit robbery in the first degree as set forth in the information.6\nThe information states that the defendant or another participant in the crime used and threatened to use a dangerous instrument. The state contends that this language indicates that at least two people were present at the scene and involved in the crime. The state argues that, as a result, robbery in the second degree in violation of § 53a-135 (a) (1) is a lesser included offense of robbery in the first degree in violation of § 53a-134 (a) (3) as set forth in the information. We disagree.\n*846Phrased in the disjunctive, the information and the statute on robbery in the first degree do not require that another person participate in the robbery in all instances. In this information, there is no requirement that another individual even be present at the scene for robbery in the first degree to be established. The defendant himself, without any other participant present, could have committed the robbery and used and threatened to use the knife. The defendant need not have committed robbery in the second degree pursuant to § 53a-135 (a) (1) in order to commit robbery in the first degree as alleged in the information. We conclude that robbery in the second degree pursuant to § 53a-135 (a) (1) is not a lesser included offense of robbery in the first degree pursuant to § 53a-134 (a) (3) as set forth in the information and, therefore, the defendant did not have proper notice of the charges against him.\nB\nWe now analyze the elements of the offenses of conspiracy to commit robbery in the first degree as set forth in the information and conspiracy to commit robbery in the second degree in violation of §§ 53a-48 and 53a-135 (a) (1). “To prove the crime of conspiracy, in violation of § 53a-48, the state must establish beyond a reasonable doubt that an agreement existed between two or more persons to engage in conduct constituting a crime and that subsequent to the agreement one of the conspirators performed an overt act in furtherance of the conspiracy. State v. Rouleau, 204 Conn. 240, 258, 528 A.2d 343 (1987); State v. Estrada, 28 Conn. App. 416, 420, 612 A.2d 110, cert. denied, 223 Conn. 925, 614 A.2d 828 (1992). The state is also obligated to prove that the accused intended that conduct constituting a crime be performed. State v. Rouleau, supra [258]; State v. Channer, 28 Conn. App. 161, 168, 612 A.2d *84795, cert. denied, 223 Conn. 921, 614 A.2d 826 (1992).” State v. Hooks, 30 Conn. App. 232, 241-42, 619 A.2d 1151, cert. denied, 225 Conn. 915, 623 A.2d 1025 (1993).\nThe pertinent part of the information with regard to conspiracy to commit robbery in the first degree set forth as follows: “Eric Jones did agree with one or more persons to commit a robbery, and in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime used and threatened the use of a dangerous instrument .... OVERT ACT On October 30, 1991 at approximately 11:35 p.m., the said Eric Jones and Alexander Nieves did approach a female in the parking lot of Denny’s. Eric Jones displayed a knife, and pushed the female to the ground. Her pocketbook was then taken from her.” (Emphasis added.)\nAlthough termed “overt act,” there are actually several overt acts alleged. The information not only asserts that the defendant agreed with another person or persons to commit robbery, but also alleges the following as overt acts: (1) Nieves was at the scene of the robbery and took an active role in the commission of the robbery, (2) the defendant displayed a knife, (3) the defendant pushed the victim to the ground, and (4) the victim was robbed of her pocketbook. We conclude that it was possible for the defendant to have committed the crime of conspiracy to commit robbery in the first degree as set forth in the information without also having engaged in conspiracy to commit robbery in the second degree.\n“The law on overt act charges was set forth in United States v. Sellers, 603 F.2d 53, 56 (8th Cir. 1979), vacated in part on other grounds, 447 U.S. 932, 100 S. Ct. 3033, 65 L. Ed. 2d 1127 (1980), modified, 628 F.2d 1085 (8th Cir. 1980). Tn a conspiracy prosecution, the government is not limited to proof of only those overt acts *848charged in the indictment and in fact need not prove every overt act alleged. United States v. Harris, 542 F.2d 1283, 1300 (7th Cir. 1976), cert. denied, 430 U.S. 934, 97 S. Ct. 1558, 51 L. Ed. 2d 779 (1977); United States v. Adamo, 534 F.2d 31, 38 (3rd Cir.), cert. denied, 429 U.S. 841, 97 S. Ct. 116, 50 L. Ed. 2d 110 (1976). In addition, if an alleged overt act has not been proved, its submission to the jury is harmless error when the jury is presented with other overt acts in furtherance of the conspiracy which were sufficiently supported by the evidence. United States v. Bletterman, 279 F.2d 320, 322 (2d Cir. 1960); Giardano v. United States, 251 F.2d 109, 115 (8th Cir.), cert. denied, 356 U.S. 973, 78 S. Ct. 1136, 2 L. Ed. 2d 1147 (1958).’ United States v. Sellers, supra [56].” State v. Boykin, 27 Conn. App. 558, 571-72, 609 A.2d 242, cert. denied, 223 Conn. 905, 610 A.2d 179 (1992).\nAs presented in the information, proof of conspiracy to commit robbery in the first degree would not necessarily result in proof of conspiracy to commit robbery in the second degree in violation of § 53a-135 (a) (1). Proof of conspiracy to commit robbery in the first degree could occur if the jury found as an overt act that the defendant displayed a knife. The jury need not determine that another participant was actually present and aided the commission of the crime to find the defendant guilty of conspiracy to commit robbery in the first degree. As a result, the defendant’s sixth amendment rights were violated by the trial court’s charge regarding conspiracy to commit robbery in the second degree.\nII\nThe defendant next contends that the trial court improperly failed to instruct the jury as requested on robbery in the third degree in violation of § 53a-136 and conspiracy to commit robbery in violation of §§ 53a-48 and 53a-136 as lesser included offenses of robbery in *849the first degree in violation of § 53a-134 (a) (3) and conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 and 53a-134 (a) (3) as set forth in the information. Because we are remanding this case for a new trial and cannot conclude that the issues concerning instructions on robbery in the third degree and conspiracy to commit robbery in the third degree as lesser included offenses will recur on retrial, we need not address them.\nIll\nThe defendant’s final contention is that Wharton’s rule barred the conviction of the defendant for both robbery in the second degree pursuant to § 53a-135 (a) (1) and conspiracy to commit robbery in the second degree pursuant to §§ 53a-48 and 53a-125 (a) (1). “Wharton’s rule provides that ‘[a]n agreement by two persons to commit a particular crime cannot be prosecuted as a conspiracy when the crime is of such a nature as to necessarily require the participation of two persons for its commission.’ (Emphasis added.) 1 Wharton, Criminal Law & Procedure (Anderson Ed.) § 89, p. 191; see State v. Acklin, 171 Conn. 105, 117, 368 A.2d 212 (1976).” State v. Baker, 195 Conn. 598, 607, 489 A.2d 1041 (1985); State v. Cavanaugh, 23 Conn. App. 667, 671, 583 A.2d 1311 (1990), cert. denied, 220 Conn. 930, 598 A.2d 100 (1991). Because we are remanding this case for a new trial and cannot conclude that the issues concerning Wharton’s rule will recur on retrial, we need not decide at this time whether Wharton’s rule applies to robbery in the second degree pursuant to § 53a-135 (a) (1) and conspiracy to commit robbery in the second degree pursuant to §§ 53a-48 and 53a-135 (a) (1).\nThe judgment is reversed and the case is remanded for a new trial.\nIn this opinion the other judges concurred.\n\n General Statutes § 53a-135 provides in pertinent part: “(a) A person is guilty of robbery in the second'degree when he commits robbery as defined in section 53a-133 and (1) he is aided by another person actually present >>\nGeneral Statutes § 53a-133 provides: “A person commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of: (1) Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or (2) compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny.”\n\n\n General Statutes § 53a-48 provides in pertinent part: “(a) A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.”\n\n\n General Statutes § 53a-134 (a) provides in pertinent part: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery as defined in section 53a-133 or of immediate flight therefrom, he or another participant in the crime ... (3) uses or threatens the use of a dangerous instrument . . . .”\n\n\n General Statutes § 53a-136 provides: “(a) A person is guilty of robbery in the third degree when he commits robbery as defined in section 53a-133.”\n\n\n The sixth amendment to the United States constitution provides in pertinent part: “In all criminal prosecutions, the accused shall enjoy the right ... to be informed of the nature and cause of the accusation . . . .” The defendant also claimed that he was not provided with proper notice of the charges against him pursuant to article first, § 8, of the Connecticut constitution. Because the defendant failed to brief or to analyze independently the applicable state constitutional protections, we limit our review to the federal constitutional claim. State v. Zarick, 227 Conn. 207, 226 n.18, 630 A.2d 565, cert. denied, U.S. , 114 S. Ct. 637, 126 L. Ed. 2d 595 (1993); State v. Santiago, 224 Conn. 325, 328 n.4, 618 A.2d 32 (1992); State v. Joly, 219 Conn. 234, 258 n.16, 593 A,2d 96 (1991).\n\n\n We note that although we have not previously addressed the issue raised in this appeal, we have considered the relationship of the two statutory provisions in the context of a double jeopardy claim. In State v. Ford, 33 Conn. App. 143, 144-48, 634 A.2d 1188, cert. granted on other grounds, 228 Conn. 918, 636 A.2d 849 (1994), we reviewed whether simultaneous convictions for robbery in the second degree in violation of General Statutes § 53a-135 (a) (1) and robbery in the first degree in violation of General Statutes § 53a-134 (a) (3) constituted double jeopardy. Although the determination of whether two crimes are the same offense for double jeopardy purposes varies somewhat from the inquiry as to whether one crime is a lesser included offense of another, we began our inquiry in Ford as we do in this case, by an examination of the language set forth in the information. In Ford, the pertinent language of the information is as follows: “ ‘the accused committed a robbery and in the course of commission of the crime, he or another participant in the crime used or threatened the use of a dangerous instrument, a knife, in violation of General Statutes § 53a-134 (a) (3)’ ” and “ ‘the accused committed a robbery, and was aided by another person, Michael Jones, actually present, in violation of General Statutes § 53a-135 (a) (1).’ ” (Emphasis in original.) Id., 146-47. This court succinctly held that “[i]t is readily apparent that each count required proof of an element that the other did not. The first degree robbery count required proof that the defendant or another participant in the crime used or threatened the use of a dangerous instrument. The second degree robbery count required proof that the defendant was aided by another person actually present.” Id., 147. This court implicitly concluded, thus, that the phrases “or another participant” and “aided by another person actually present” were not equivalent, and rejected the defendant’s claim of double jeopardy.\n\n", "ocr": true, "opinion_id": 7855829 } ]

"1995-05-02"

[ "37 Conn. App. 928" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nPer Curiam.\nThe judgment is affirmed.\n", "ocr": true, "opinion_id": 7856175 } ]

"1995-08-22"

[ "38 Conn. App. 859" ]

[ { "author_str": "Hennessy", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nHennessy, J.\nThe defendant appeals from the judgment of foreclosure by sale and the judgment in favor of the plaintiff bank on the defendant’s counterclaim. The defendant claims that the trial court improperly (1) granted the motions to strike his special defenses, (2) failed to find a violation of General Statutes § 42-110a et seq., the Connecticut Unfair Trade Practices Act (CUTPA), and (3) concluded that a secret *861extension of the terms of a loan did not materially harm the defendant. We affirm the judgment of the trial court.\nThe trial court found the following facts relevant to this appeal. The defendant’s father, Joseph Caldrello, Sr., is the principal stockholder, director and chief operating officer of Caldrello Motors Groups (Caldrello Motors), a number of corporations owning various retail automobile dealerships in Connecticut, Rhode Island, New Jersey and California. Caldrello Motors had gross annual revenues in excess of $80 million. Caldrello, Sr., and Caldrello Motors had a long-standing relationship with the plaintiff and James R. Brown, its senior vice president and senior lending officer.\nIn the autumn of 1987, Caldrello Motors was in danger of failing and sought a loan from the plaintiff. Neither Caldrello, Sr., nor Caldrello Motors had sufficient collateral to secure the funding necessary for Caldrello Motors to survive. It was suggested that the defendant, who was the director of operations for Caldrello Motors, use his personal residence as collateral to obtain a personal loan, which would be used to pay off certain pressing liabilities of Caldrello Motors. The defendant was reluctant to sign a note and mortgage to obtain the loan but eventually agreed to the plan. Before executing the note and mortgage, however, the defendant obtained a letter signed by his father confirming the obligation to repay his son. It was expected by all the parties that the loan to the defendant was to be repaid within ninety days by Caldrello, Sr., or Cal-drello Motors either from the sale of a New Jersey dealership or by a refinancing of the mortgage on the defendant’s father’s personal residence. During these negotiations, the defendant was advised by the attorney who represented Caldrello, Sr., and Caldrello Motors.\n*862On November 7, 1988, the defendant executed and delivered the mortgage deed and a ninety day note to the plaintiff in the amount of $500,000. After closing costs and fees, and with the exception of $40,000 that was paid directly to the defendant, the balance of the loan proceeds went to Caldrello Motors and its creditors.\nDuring the ninety day period in which the defendant expected his father or Caldrello Motors to pay off the note, no such action was taken. The New Jersey dealership was never sold, and none of the proceeds from that dealership or from a $500,000 down payment made on the dealership were applied to the defendant’s loan. The loan committee of the plaintiff rejected a proposal to refinance the home of the defendant’s father, and although another bank eventually did refinance that home, none of these funds were applied to the defendant’s loan.\nOn November 30,1988, Brown agreed with Caldrello, Sr., to extend the time for repayment of the defendant’s loan for an additional year. Brown assumed that the defendant had knowledge of this extension agreement. The defendant maintains that he was never aware of the agreement. Caldrello, Sr., and Caldrello Motors made monthly interest payments on the note through July, 1989. At that time, interest payments ceased. On September 18,1989, the defendant informed the plaintiff that he denied any liability for the loan. The plaintiff responded with a demand for payment in full, and this foreclosure action ensued.\nI\nThe defendant first claims that the trial court improperly granted the motion to strike his special defense of misapplication of funds. The defendant first filed his answer and special defenses on February 22,1990. The plaintiff filed a motion to strike on February 13,1991, *863which was granted by the trial court on April 17,1991. On April 23, 1991, the defendant filed a new answer, special defenses and counterclaim. The plaintiff moved to strike these special defenses on June 11, 1991, and the trial court ordered the special defenses stricken on September 3, 1991.\nThe defendant’s argument that his special defense of misapplication of funds was improperly stricken focuses on the trial court’s April 17, 1991 ruling. We do not address this claim. With the filing of a new answer and special defenses on April 23, 1991, the defendant supplanted the original answer and special defenses. As a result, rulings on the original pleading cannot be the subject of appeal. See Wesley v. DeFonce Contracting Corp., 153 Conn. 400, 404-405, 216 A.2d 811 (1966); P & L Properties, Inc. v. Schnip Development Corp., 35 Conn. App. 46, 49, 643 A.2d 1302, cert. denied, 231 Conn. 913, 648 A.2d 155 (1994). Thus, we review only the trial court’s granting of the motion to strike the special defenses filed April 23, 1991.\nTurning to the trial court’s order striking the defendant’s special defenses filed April 23, 1991, we find the record inadequate to review this claim. The trial court did not issue a memorandum of decision on the plaintiff’s motion to strike the special defenses. The defendant has not requested an articulation of the basis for the trial court’s denial of this motion pursuant to Practice Book § 4051. In the absence of an adequate record on which to review the defendant’s claim, we decline to address this issue. See Bank of Boston Connecticut v. Schlesinger, 220 Conn. 152, 154 n.2, 595 A.2d 872 (1991).\nII\nThe defendant next claims that the trial court improperly found that CUTPA had not been violated. The defendant specifically complains of the plaintiff’s issu*864ing a check payable to “Glenn Gordon, attorney for Joseph Caldrello, Sr., and Joseph Caldrello II” and directing Gordon to negotiate the amount of the check, which Gordon did without the defendant’s knowledge and without turning over any of the funds to the defendant. The defendant argues that this conduct constitutes a per se violation of CUTPA.\nThere is no evidence in the record on appeal that the trial court ever addressed this claim. The defendant’s counterclaim, where violations of CUTPA are alleged, does not contain any reference to the drafting or negotiating of the payment to Gordon. The trial court's comprehensive memorandum of decision contains no reference to any of the facts surrounding the drafting or negotiating of this payment and contains no legal analysis of this claim.\nIt is not our practice to review claims that were not brought to the attention of the trial court. See Practice Book § 4185. Although Practice Book § 4185 allows this court, in the interests of justice, to review plain error that was not brought to the attention of the trial court, this claim does not warrant such review. “In civil cases, [pjlain error is properly reserved for those extraordinary situations where the error is so obvious that the fairness and integrity of and public confidence in the judicial process would be impaired were we to fail to address an issue that was not raised or preserved at trial.” (Internal quotation marks omitted.) Lynch v. Granby Holdings, Inc., 230 Conn. 95, 98, 644 A.2d 325 (1994). This is not such a case. Accordingly, we decline to review this alleged violation of CUTPA that was not raised in the trial court. See Yale University v. Blumen-thal, 225 Conn. 32, 36 n.4, 621 A.2d 1304 (1993).\nIll\nThe defendant’s final claim is that the trial court improperly concluded that the plaintiff’s secret exten*865sion of the loan term, arranged through the defendant’s father, did not violate CUTPA. We disagree.\nGeneral Statutes § 42-110b (a) provides: “No person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.”1 The determination of whether an act or practice is unfair in violation of CUTPA revolves around the application of the “cigarette rule.” This rule involves three inquiries: “(1) [WJhether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise — whether, in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers [competitors or other businessmen]. Conaway v. Prestia, [191 Conn. 484, 492-93, 464 A.2d 847 (1983)], quoting FTC v. Sperry & Hutchinson Co., 405 U.S. 233, 245-45 n.5, 92 S. Ct. 898, 31 L. Ed. 2d 170 (1972) [Sperry] .... McLaughlin Ford, Inc. v. Ford Motor Co., 192 Conn. 558, 567-68, 473 A.2d 1185 (1984).\n“All three criteria do not need to be satisfied to support a finding of unfairness. A practice may be unfair because of the degree to which it meets one of the criteria or because to a lesser extent it meets all three. ...” (Citations omitted; internal quotation marks omitted.) Cheshire Mortgage Service, Inc. v. Montes, 223 Conn. 80, 105-106, 612 A.2d 1130 (1992).\nIn finding that there was no CUTPA violation in the extension of the term to pay off the loan, the trial court, as fact finder, “conclude[d] that the defendant knew that Caldrello, Sr., and Caldrello Motors were unwilling or *866unable to repay him from either the refinancing or the sale of the New Jersey dealership” and “further conclude^] that the defendant consented to his father’s request for an extension; hence, no concealment was proven.” (Emphasis added.) It was only after making this express finding that the trial court went on to state, “Even if the defendant was in fact unaware of the request for the extension, it is difficult to perceive how this harmed the defendant or caused him ascertainable loss.” (Emphasis added.)\nThere is nothing offensive to public policy, immoral, unethical, oppressive, or unscrupulous about extending the time for the repayment of a loan. Thus, the defendant’s challenge is to the trial court’s factual finding that the extension of the loan term was effected without his knowledge and consent. “[W]here the factual basis of the court’s decision is challenged, we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous.” (Internal quotation marks omitted.) Neri v. Neri, 35 Conn. App. 812, 819, 647 A.2d 1, cert. denied, 231 Conn. 916, 648 A.2d 154 (1994); see also Einbender v. Board of Tax Review, 217 Conn. 240, 242, 584 A.2d 1188 (1991) (we review trial court’s findings of fact only to ascertain whether clearly erroneous).\nIn reaching its conclusion that the defendant knew of and consented to the extension of the loan term, the trial court found that there had been elaborate negotiations between the defendant, his father and the bank. Furthermore, the trial court found that Brown assumed the defendant knew of the extension agreement. The only evidence in the record inconsistent with finding that the defendant knew of and consented to the extension was the defendant’s own testimony. The trial court, as finding of fact, could reasonably have concluded *867that this testimony was not credible. See Gibson v. Kee-bler Co., 37 Conn. App. 392, 396, 655 A.2d 1172 (1995). We conclude, therefore, that the trial court’s finding that the defendant knew of and consented to his father’s request for an extension was not clearly erroneous. Thus, the first two prongs of the cigarette rule are not satisfied.\nThe trial court also found that even if the defendant was not aware of the extension agreement he was not harmed thereby. The trial court based this finding on the defendant’s not having requested that the plaintiff make a demand for repayment within the original ninety day loan term and his not having attempted to collect the amount due on the note from his father during or immediately after the original ninety day loan term. The extension of the loan term was not an obstacle to exercising either of these options. Because the extension of the loan agreement to give the defendant more time to pay off the note did not preclude the defendant from paying off the loan at the original time, there was no harm to the defendant by the extension. The extension, whether secret or not, conferred on the defendant the benefit of having more time to meet his obligation. Therefore, the third prong of the cigarette rule is not satisfied.2\nThe trial court properly concluded that there was no violation of CUTPA by the plaintiff’s extension of the term of the loan to the defendant.\nThe judgment is affirmed.\nIn this opinion the other judges concurred.\n\n The banking industry is governed by CUTPA. Normand Josef Enterprises, Inc. v. Connecticut National Bank, 230 Conn. 486, 521, 646 A.2d 1289 (1994).\n\n\n The defendant argues that because Ms father was solvent at the time the extension was made but became insolvent and filed for bankruptcy during the one year extension, the trial court abused its discretion in finding no injury to the defendant under the third prong of the cigarette rule. There are no factual findings by the trial court to support this argument, so we do not address this claim. Bank of Boston Connecticut v. Schlesinger, supra, 220 Conn. 154 n.2.\n\n", "ocr": true, "opinion_id": 7856290 } ]

"1995-07-04"

[ "38 Conn. App. 915" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nPer Curiam.\nThe judgment is affirmed.\n", "ocr": true, "opinion_id": 7856314 } ]

"1996-02-13"

[ "40 Conn. App. 924" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nPER CURIAM.\nThe judgment is affirmed.\n", "ocr": true, "opinion_id": 7856644 } ]

"1996-07-09"

[ "42 Conn. App. 906" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nPer Curiam.\nThe judgment is affirmed.\n", "ocr": true, "opinion_id": 7856976 } ]

"1997-01-07"

[ "44 Conn. App. 901" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nPer Curiam.\nThe judgment is affirmed.\n", "ocr": true, "opinion_id": 7857287 } ]

"1997-01-07"

[ "44 Conn. App. 902" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nPer Curiam.\nThe judgment is affirmed.\n", "ocr": true, "opinion_id": 7857289 } ]

"1997-01-14"

[ "44 Conn. App. 905" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nPer Curiam.\nThe judgment is affirmed.\n", "ocr": true, "opinion_id": 7857299 } ]

"1997-11-18"

[ "47 Conn. App. 913" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nPer Curiam.\nThe judgment is affirmed.\n", "ocr": true, "opinion_id": 7857816 } ]

"1998-06-09"

[ "49 Conn. App. 52" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n\nOpinion\n\nPER CURIAM.\nThe dispositive issue in this appeal from the habeas court’s dismissal of the petitioner’s writ of habeas corpus is whether the habeas court abused its discretion in denying the petitioner’s request for certification to appeal.\n*53The habeas court dismissed the petitioner’s habeas corpus writ after a hearing on his claims of ineffective assistance of counsel. The petitioner alleged that the habeas court abused its discretion in denying certification to appeal because, during the hearing, the habeas court improperly (1) barred from evidence statements made to the petitioner and other witnesses by his counsel, who had since died, that the petitioner claimed were admissible under the residual exception to the hearsay rule, (2) determined that counsel’s cross-examination of the medical witnesses was effective assistance of counsel, (3) determined that counsel was not ineffective in examining physician Deborah Bovilsky, (4) determined that counsel did not breach his loyalty to the petitioner, and (5) determined that counsel was not ineffective in failing to object to certain hearsay statements offered in support of assault charges.\nIn dismissing the petition for a writ of habeas corpus on the ground of ineffective assistance of counsel, the habeas court followed the two-prong test set out in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Under this test, to prevail on a constitutional claim of ineffective assistance of counsel, the petitioner must demonstrate both deficient performance and actual prejudice. The first prong is satisfied by proving that counsel made errors so serious that he was not functioning as the “counsel” guaranteed by the sixth amendment. The second prong is satisfied if it is demonstrated that there exists a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.\nThe habeas court did not improperly prohibit evidence of statements of deceased counsel under the residual exception to the hearsay rule. “As with other evidentiary matters, the trial court has broad discretion in ruling on the applicability of the residual exception. . . . We will reverse the trial court’s refusal to admit *54evidence under the residual exception only upon a showing of a clear abuse of discretion.” (Citations omitted.) State v. Rodriguez, 39 Conn. App. 579, 604, 665 A.2d 1357 (1995), rev’d on other grounds, 239 Conn. 235, 684 A.2d 1165 (1996). The petitioner’s claim as to counsel’s examination of Bovilsky has no merit. A review of the briefs and transcripts shows that this examination was adequate. The habeas court stated in its memorandum of decision that it disagreed with the petitioner’s claim that his counsel failed to cross-examine the state’s witnesses adequately. In addition, the court found that, while certain statements made by counsel about the petitioner were improper, they did not prejudice him, nor was there any evidence that the jury was aware of them. The habeas court also found that counsel's failure to object to testimony of questionable admissibility did not render his performance deficient.\nAfter a thorough review of the record and briefs in this habeas action, we conclude that the petitioner has failed to make a substantial showing that he has been denied a state or federal constitutional right and, further, has failed to sustain his burden of persuasion that the denial of certification to appeal is a clear abuse of discretion or that an injustice has been done. See Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994); Simms v. Warden, 229 Conn. 178, 189, 640 A.2d 601 (1994); Walker v. Commissioner of Correction, 38 Conn. App. 99, 100, 659 A.2d 195, cert. denied, 234 Conn. 920, 661 A.2d 100 (1995); see also Lozada v. Deeds, 498 U.S. 430, 431-32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991).\nThe appeal is dismissed.\n", "ocr": true, "opinion_id": 7858090 } ]

"1999-02-23"

[ "52 Conn. App. 12" ]

[ { "author_str": "Spear", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n\nOpinion\n\nSPEAR, J.\nThe plaintiff chief of police of the Hartford police department appeals from the judgment of the trial court dismissing his appeal from the decision of the freedom of information commission (commission). The plaintiff sought a review of the commission’s decision ordering the plaintiff to disclose documents relating to an internal affairs investigation. We affirm the decision of the trial court.\nThe following facts are undisputed. On February 9, 1995, attorney Terence P. Sexton made a request under the Freedom of Information Act (act); General Statutes (Rev. to 1997) § 1-7 et seq.; that required the plaintiff to disclose “all documents, reports and memoranda concerning any Internal Affairs or Patrol Operations Division investigations relating to Officer Raymondo Diaz.” That request was denied. On February 24, 1995, Sexton *14filed an action in the United States District Court on behalf of Carmen Delia Soto against the city of Hartford and Diaz for alleged violations of her civil rights. During the course of the federal action, Sexton sought the same information as requested from the plaintiff through discovery proceedings in the federal court action.\nFollowing a hearing on the merits, the commission issued its final decision on May 17,1996, ordering disclosure of all of the documents in question. In particular, the commission ordered that the plaintiff “strictly comply with the public records requirements set forth in [General Statutes] §§ 1-15 and 1-19 (a).” Pursuant to General Statutes §§ l-21i (d) and 4-183, the plaintiff appealed to the Superior Court from the commission’s decision. While the appeal was pending, the underlying federal action was settled and withdrawn. The trial court, nevertheless, addressed the issues raised by the parties and, concluding that § l-19b (b) (1) did not bar access to public records under the facts in the present case, dismissed the appeal. From that dismissal, the plaintiff has appealed to this court.\nI\nAs a preliminary matter, we must address the question of whether the issue before us is moot. The underlying action in federal court has been settled and withdrawn, and, in addition, the plaintiff has produced all documents originally requested.\nMootness implicates the jurisdiction of this court to hear an appeal. Domestic Violence Services of Greater New Haven, Inc. v. Freedom of Information Commission, 240 Conn. 1, 6, 688 A.2d 314 (1997). Our Supreme Court has stated, however, that when an order of the commission is prospective in nature and involves a continuing obligation to comply, an appeal is not moot, even though the underlying action may have been settled or -withdrawn. Id., 8-9. The present case involves *15just such a prospective order, which stated that the plaintiff “shall strictly comply with the public records requirements set forth in §§ 1-15 and 1-19 (a).”1 Because the plaintiff is subject to a prospective order of the commission, we conclude that the case before us is not moot.\nII\nTurning to the merits of the appeal, the plaintiff claims that § l-19b (b) (1) provides an exemption from disclosure under the act if the same records have also been sought through the use of the discovery process in civil litigation. We disagree.\nOur analysis is guided by our Supreme Court’s consistent interpretation of the act to favor disclosure and to construe exceptions to disclosure narrowly. See, e.g., Waterbury Teachers Assn. v. Freedom of Information Commission, 240 Conn. 835, 840, 694 A.2d 1241 (1997); Gifford v. Freedom of Information Commission, 227 Conn. 641, 651, 631 A.2d 252 (1993); Superintendent of Police v. Freedom of Information Commission, 222 Conn. 621, 626, 609 A.2d 998 (1992).\nGeneral Statutes § l-19b (b) provides in relevant part that “[n]othing in sections 1-15, l-18a, 1-19 to l-19b . . . shall be deemed in any manner to (1) . . . limit the rights of litigants, including parties to administrative proceedings, under the laws of discovery of this state . . . .” The plaintiff claims that allowing the defendant *16or others in a similar situation to obtain documents not otherwise discoverable in a civil action would effectively limit his rights as a litigant to the protections found in the laws of discovery of this state. In essence, the plaintiff argues that the laws of discovery should limit the rights of litigants under the act. We decline to adopt this reasoning.\nThe right of a litigant to discovery is primarily the right to obtain information. Practice Book § 13-2 provides in relevant part: “In any civil action . . . where the judicial authority finds it reasonably probable that evidence outside the record will be required, a party may obtain in accordance with the provisions of this chapter discovery of information or disclosure, production and inspection of papers, books or documents material to the subject matter involved in the pending action, which are not privileged, whether the discovery or disclosure relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, and which are within the knowledge, possession or power of the party or person to whom the discovery is addressed. . . .” The discovery rules are designed to facilitate trial proceedings and to “make a trial less a game of blindman’s buff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent.” United States v. Procter & Gamble, 356 U.S. 677, 682, 78 S. Ct. 983, 2 L. Ed. 2d 1077 (1958); Perry v. Hospital of St. Raphael, 17 Conn. App. 121, 123, 550 A.2d 645 (1988); Perez v. Mount Sinai Hospital, 7 Conn. App. 514, 519, 509 A.2d 552 (1986). A successful objection to a discovery request does not create an independent right in the objecting party to withhold information. It is merely a limit on the requesting party’s right to obtain the information in that court proceeding.\nOur Supreme Court previously analyzed an earlier version of § l-19b (b) (1) that precluded any disclosure *17pursuant to the act that would affect the discovery rights of litigants. In Gifford v. Freedom of Information Commission, supra, 227 Conn. 663-65, our Supreme Court held that an arrest report did not have to be disclosed to the public, pursuant to the act, while criminal prosecution relating to that arrest report was pending. It found that disclosure of the arrest report would expand the rights of the defendant under the laws of discovery and thereby “would affect the rights of litigants under the laws of discovery . ...” (Emphasis added.) Id., 663-64.\nThe term “affect” was changed to “limit” in § l-19b (b) (1) in 1994 by the enactment of No. 94-26 of the 1994 Public Acts. The revised statute precludes disclosure pursuant to the act that would “limit the rights of litigants . . . under the laws of discovery of this state.” General Statutes § l-19b (b) (1). The prior term, affect, is derived from the Latin word affectus meaning “acted upon or subjected to.” Random House Unabridged Dictionary (2d Ed. 1993). It means “to act on; produce an effect or change in.” Id. As our Supreme Court explained in Gifford, a disclosure pursuant to the act then in effect could expand discovery rights and could reasonably be interpreted as affecting the rights of litigants under the laws of discovery of the state. The term limit, however, is not susceptible to the same interpretation. Limit is derived from the middle English word lymyt, which has its roots in the Latin word limes, meaning boundary. Id. It means “to restrict” or “to confine.” Id. Where more information is available to a litigant by way of a request pursuant to the act than by discovery, that litigant’s discovery rights have been expanded rather than limited.\nWe conclude that “to limit the rights of litigants . . . under the laws of discovery of this state” should be *18interpreted as prohibiting the use of the act to restrict the rights of parties seeking information through discovery. Similarly, an exemption from production under the act, in and of itself, does not preclude a litigant from obtaining the same documents through discovery. See Board of Education v. State Board of Labor Relations, 190 Conn. 235, 245, 460 A.2d 1255 (1983). The act and our rules of discovery provide independent methods for obtaining information, except where disclosure pursuant to the act would limit the discovery rights of litigants.\nThe judgment is affirmed.\nIn this opinion the other judges concurred.\n\n General Statutes § 1-15 (a) provides in relevant part: “Any person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record. . . .”\nGeneral Statutes § 1-19 (a) provides in relevantpart: “Except as otherwise provided by any federal law or state statute, all records maintained or kept on file by any public agency, whether or not such records are required by any law or by any rule or regulation, shall be public records and every person shall have the right to inspect such records promptly during regular office or business hours or to receive a copy of such records in accordance with the provisions of section 1-15. . . .”\n\n", "ocr": true, "opinion_id": 7858406 } ]

"1999-06-15"