St. John v. Commissioner of Transportation

374 A.2d 190, 172 Conn. 234, 1977 Conn. LEXIS 887
CourtSupreme Court of Connecticut
DecidedJanuary 11, 1977
StatusPublished
Cited by7 cases

This text of 374 A.2d 190 (St. John v. Commissioner of Transportation) is published on Counsel Stack Legal Research, covering Supreme Court of Connecticut primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
St. John v. Commissioner of Transportation, 374 A.2d 190, 172 Conn. 234, 1977 Conn. LEXIS 887 (Colo. 1977).

Opinion

House, C. J.

This is an appeal from a judgment rendered by a committee of three state referees on an appeal taken by the plaintiffs, pursuant to the provisions of §§ 13a-76 and 13a-76a of the General Statutes, from the assessment of damages by the defendant commissioner of transportation for the tailing for highway purposes of certain land owned by the plaintiffs in the town of Norwalk. The [235]*235defendant has made four assignments of error which together essentially raise bnt one issue: Did the committee of state referees err in rendering judgment awarding the plaintiffs interest for the period December 7, 1971, to June 15, 1972, when the committee had previously determined that the “true taking date” used in calculating the compensation awarded to the plaintiffs was June 15, 1972?

Before discussing the merits of the appeal, it is important to note the manner in which it has been presented to us. The defendant’s assignments of error are all predicated on claims of error apparent on the face of the record. “If error appears on the face of the record no finding is necessary”; Practice Book § 612B; and it appears that neither party requested1 a finding for appeal and the committee made none. Notwithstanding the absence of a finding, the plaintiffs printed in the appendix to their brief several excerpts from a certified transcript of proceedings before the committee. Presumably this was done pursuant to the provisions of § 628H (d) of the Practice Book. In addition, the plaintiffs included in the appendix to their brief copies of letters exchanged by counsel. The defendant moved pursuant to the provisions of § 692 of the Practice Book that the entire appendix to the plaintiffs’ brief be stricken. This motion was heard immediately before the argument on the appeal and was denied. Notwithstanding this ruling, it now appearing that the merits of this appeal must be determined solely on the record, we [236]*236do not consider the contents of the appendix to the plaintiffs’ brief. Not only does it appear that none of the letters printed in the appendix was admitted as an exhibit for the consideration of the committee but “[t]he transcript of testimony cannot take the place of a finding because we are without power to find facts.” Waterbury v. Commission on Human Rights & Opportunities, 160 Conn. 226, 228, 278 A.2d 771; Maltbie, Conn. App. Proc. § 126.

In the absence of a finding for appeal what is properly before us as a record are the pleadings, the motions made at the trial and the judgments. City Savings Bank v. Lawler, 163 Conn. 149, 152, 302 A.2d 252; Gitlitz v. Davis, 146 Conn. 280, 310, 150 A.2d 213. The only question before us, then, is whether, as the defendant claims, error appears on the face of the record. Maltbie, loc. cit.

The record discloses the plaintiffs’ appeal in five counts alleging that on December 7, 1971, the defendant filed with the clerk of the Superior Court in Fairfield County an assessment of $716,000 damages for the taking of property for highway purposes and that the plaintiffs were aggrieved by that assessment as it was inadequate. The fifth count contained an allegation that “the purported condemnation by the Defendant of the Plaintiffs’ property previously referred to was ineffective for the reason that said purported taking failed to take into consideration that said property was in condominium ownership form.” By way of relief, the plaintiffs requested the appointment of a referee to reassess the damages, $5,000,000 damages, and “[a]n order declaring that the original taking of December 7, 1971 was improper and invalid and . . . [requiring] the Defendant to withdraw said [237]*237taking and compensate the Plaintiffs for damages.” Subsequently, the plaintiffs filed in the Superior Court a motion entitled “Motion for Determination of True Taking Date” in which they recited the filing on December 7, 1971, of the original notice of condemnation and certificate of taking and the filing on June 9,1972, of an amended notice. Their motion further recited: “It is the claim of the plaintiffs that the taking was not effective, at least until the date of the Amendment, and accordingly . . . [the plaintiffs move] the Court to either determine that the actual date of taking was other than December 7, 1971, or in the alternative to refer said question to a panel of three referees to be determined at the time of the trial of said appeal.” The court granted the motion and subsequently amended its order to direct that “[t]he ‘taking’ is to be determined by the referee or three referees before trial.” The plaintiffs amended their appeal to one seeking a reassessment of the damages for the taking and for damages caused by the delay in effectuating the taking. As amended, the appeal recited the December 7, 1971, filing “purportedly pursuant to the . . . [s]tatutes” and the filing on June 15, 1972, of an amended notice of condemnation. The court, on September 11, 1973, ordered the appointment of three referees pursuant to § 52-434a (b) of the General Statutes to reassess the damages for the taking and further ordered “that within ninety (90) days after the finding of a true taking date by said three (3) State Referees” the parties should exchange copies of all appraisal reports.

On July 30, 1974, the committee of three referees filed the following “Memorandum on Determination of Taking Date”: “The taking date in the above-entitled matter is determined to be June 15, 1972, [238]*238the date of the filing of the Amended Certificate of Condemnation with the Clerk of the Superior Court for Fairfield County.”

On September 25, 1975, the committee rendered its judgment finding that there was $1,046,500 due to the plaintiffs as damages for the taking, that $716,000 had been deposited by the defendant and that, accordingly, the defendant should pay to the plaintiffs “the sum of $330,500, interest to the date of payment, and costs.”

On October 28, 1975, the plaintiffs filed with the committee a motion entitled “Motion for Determination re Interest Computation” in which they asked the committee to “determine that said interest runs from December 7,1971 to the date of payment.”

On January 13, 1976, the committee rendered judgment reciting its prior determination that the “true taking date” was June 15, 1972, and its judgment that the defendant pay to the plaintiffs $330,500 with “interest to the date of payment,” and further reciting that the parties had stipulated that that judgment be “reopened for the limited purpose of determining: a. Whether the plaintiffs are entitled to interest from December 7, 1971 (the date of the filing of the certificate of taking and assessment of damages) to June 15, 1972 (the date determined to be the true taking date); and b. The amount of such interest.” The judgment then recites several specific findings. The first is that “[o]n December 7, 1971, the Commissioner of Transportation took and acquired the subject property, and entered upon, took possession, and exercised dominion and all rights of ownership over the property.” The second is that “[t] hereafter it was determined [239]

Free access — add to your briefcase to read the full text and ask questions with AI

Related

New England Estates, LLC v. Town of Branford
988 A.2d 229 (Supreme Court of Connecticut, 2010)
Commissioner of Transportation v. Larobina
882 A.2d 1265 (Connecticut Appellate Court, 2005)
City of New Haven v. Hamilton, No. Cv-458762 (Jun. 14, 2002)
2002 Conn. Super. Ct. 7579 (Connecticut Superior Court, 2002)
Favrow v. Commissioner of Environmental Prot., No. 364442 (Jul. 26, 1991)
1991 Conn. Super. Ct. 6067 (Connecticut Superior Court, 1991)
State v. Evans
519 A.2d 73 (Connecticut Appellate Court, 1986)
Russo v. Town of East Hartford
493 A.2d 914 (Connecticut Appellate Court, 1985)
Textron, Inc. v. Commissioner of Transportation
407 A.2d 946 (Supreme Court of Connecticut, 1978)

Cite This Page — Counsel Stack

Bluebook (online)
374 A.2d 190, 172 Conn. 234, 1977 Conn. LEXIS 887, Counsel Stack Legal Research, https://law.counselstack.com/opinion/st-john-v-commissioner-of-transportation-conn-1977.