Petition for Writ of Certiorari — Simmons v. Wetherall

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Supreme Court, U3.

/ {LED

00 %2 JUL 10g

NUEFICE OF THE CLERK

In The

Supreme Court of the United States

AUGUSTUS J. SIMMONS,

Petitioner,

Vs.

HORACE B. WETHERALL, et al.,

Respondents.

On Petition For Writ Of Certiorari

To The Supreme Court

Of The State Of Connecticut

PETITION FOR WRIT OF CERTIORARI

Aucustus J. SIMMONS

Petitioner

P.O. Box #1

Windsor, CT 06095

(860) 569-6714

QUESTION PRESENTED

DID THE CONNECTICUT SUPREME COURT

TRANSGRESS THE DUE PROCESS AND EQUAL PRO-

TECTION CLAUSES OF THE FEDERAL CONSTITU-

TION WHERE: WITHOUT ANY NOTICE OR SERVICE

OF PROCESS; WITHOUT ANY CONSTITUTIONAL VAL-

UATIONS OR JUST COMPENSATION; WITHOUT ANY

PLEADINGS, HEARINGS, DECISIONS, JUDGMENTS,

OR MESNE PROCESS DUE TO THE LACK OF BOTH

JURISDICTION OF THE SUBJECT MATTER AND PAR-

TIES BY THE LEGALLY ORGANIZED COURT (SUPE-

RIOR) BELOW - THE ACT OF THE STATE SUPREME

COURT GIVING A STATUTE (SPECIAL ACT #170 (1969))

A NEW CONSTRUCTION THAT DENIED RIGHTS

UNDER THE CONSTITUTION WHEN IT- TRANS-

MOGRIFIED PLAINTIFF’S - UNADDRESSED - PRIVATE

TORT ACTION (#163875) INTO A PUBLIC REAL PROP-

ERTY “F-R-E-E-Z-I-N-G” FOR A FEDERALLY-

INSTALLED, MAINTAINED, AND OCCUPIED AIR-

CRAFT NAVIGATIONAL INSTRUMENTATION SYSTEM

OF OVER THIRTY-SIX (36) YEARS DURATION ON

PLAINTIFF’S PARCEL “C,” THAT APPEARS ON THE

FACE OF THE RECORD.

ii

PARTIES TO PROCEEDING

’ Petitioner:

Augustus J. Simmons, Plaintiff/Owner

(860) 569-6714

Respondents:

James F. Sullivan, Commissioner (860) 594-3000

Connecticut Department of Transportation

2800 Berlin Turnpike, P.O. Box 317546

Newington, CT 06131-7546

Richard Blumenthal, Attorney General (860) 808-5000

55 Elm St.

Hartford, CT 06106

Rogin, Nassau, Caplan, Lassman

and Hirtle (860) 278-7480

1 City Place

Hartford, CT 06103

Jane F. Garvey, Administrator (202) 267-3111

Federal Aviation Administration

800 Independence Ave. S.W.

Washington D.C. 20591

Robert S. Bartanowicz,

Regional Director (781) 238-7020

12 New England Executive Park

Burlington, MA 01803

Solicitor General, ;

Seth P. Waxman (202) 51442201

950 Pennsylvania Ave. N.W., Room 5614

Washington D.C. 20530-0001

Michael DiDonato, Chief Clerk (860) 548-2700

Superior Court

85 Washington Street

Hartford, CT 06106

lil

John Malone (860) 870-3277

State Attorney’s Office

State of Connecticut Court House

Enfield, CT 06082

PARTIES TO PROCEEDING - Continued |

;

iv

TABLE OF CONTENTS

Page

COUPES IIE PRICED: 66 hh ois cd icdee bel eaveerss2 i

PARTE ESD Po ees oo so oa ssn canvas taeeshas ii

TAReede Ge RA Ns 5 nes obs ed ee eee eke iv

TAB RP Pe 5 ook oss 6 a es ees Vv

yk ER EON ty ee gp Mey rer ir per 1

PAP RURIE s His eh hae Ch eekaa eas Sdieetweecuwen 1

STATUTE AND CONSTITUTIONAL PROVISIONS... 2

STATEMENT OF THE CASE......... Sibiede eae 6

REASONS FOR GRANTING THE WRIT ........... 8

PIGS hos bas ceaendardececcc emis eee 14

CRIPRASIUIN cab biccd ka diedceseuChedesabeabwestel 18

Vv

TABLE OF AUTHORITIES

Page

Cases

Allah v. Superior Court of Cal., 871 F.2d 887 (1989) .... 18

Anselmo v. Cox, 135 Conn. 78 (1948) ............... 11

Armstrong v. Manzo, 380 U.S. 545 (1965)....... App. 23

Baldwin v. Hale, 1 Wall 223 (1863)............ App. 23

Beaird-Poulan, Inc. v. Louisiana Dept. of High-

ways, 497 F.2d 54 (5th Cir.), cert. denied, 420

U.S. 990, 95 S.Ct. 1424, 43 L.Ed. 2d 670 (5th Cir.

Fg | Meaney POM Maron ray ed et Meme pec Me ere Sg 15, App. 20

Blythe & Fargo Co. v. Swenson, 15 Utah 345, 49

Ss TORE LEG) oon ei viens Auli deersienwnered App. 4

Brandriff v. Sellas, 40 Conn. Sup. 243

3s SAP ee Sy peiaep er Ary WEEN tN AS” 16, App. 8, 10

Bri v. Ulrey, 159 Conn. 371, 269 A.2d 262

(SNS Sivas era nads hen gcse task tense cae App. 18

Carter v. Carter, 147 Conn. 238, 159 A.2d 173

CRUE SN bgp ie cha ns Cpe teesh clas yanewen t¥auneuas App. 5

Case v. Bush, 93 Conn. 550, 106 A 822 (1919) ..App. 19

Chicago B. & O.R. Co. v. Chicago, 166 U.S.

BO REDO) 6p need dS Cais LRA WE oa LEREETT Ob AS App. 26

Chevalier v. Wakefield, 85 Conn. 374 (1912)..... App. 9

Chrysler Credit Corp. v. Fairfield Chrysler Plym-

outh, 180 Conn. 223, 429 A.2d 487 (1980) ....App. 16

City of Columbia, S.C. v. Costle, 710 F.2d 1009

CRUG Ske Vi vedas ieeaweorkareteatns 14, App. 20

Clover v. Urban, 108 Conn. 13, 142 A 389

CEOS eid vdac supose di erelseuikacSereeel App. 10

vi

TABLE OF AUTHORITIES - Continued

Page

Cohens v. Commonwealth of Virginia, 6 Wheat.

264, 5 LBs BOF CARES) kx svkndas vies tascasoacer atu 1

Coit v. Haven, 30 Conn. 190 (1861) ............. App. 8

Connecticut v. Doehr, 111 S.Ct. 2105 (1991)..... App. 24

Daley v. Board of Police Commissioners, 1333

COO, 726 TERT) io Scand cveek ie sdees You levees App. 9

Dillon v. Fabey, 88 Conn. 605 (1914) ............ App. 9

Ettor v. Tacoma, 228 US. 266 CAGES) osc cee ncvdeccuts 9

Ex Parte Virginia, 100 U.S. 339 (1879).......... App. 26

Freund v. Burns, 131 Conn. 380, 40 A.2d 754

(EDGE) ois vc ccc ced acccwesunnistesracees ourenpaey App. 11

Frick v. Hartford Life Ins. Co., 98 Conn. 251, 119 A

SEP URGED < va vicivncesenevesturanensentuneeees App. 10

Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32

Led: Bak G56 (USTED. os ike scccsvateusinden App. 22

Furman v. Furman, 60 Am. St. Rep. 642 (1897)..App. 4

Galpin v. Page, 18 Wall 350 (1873) .............. App. 7

Gaylord v. Payne, 3 Conn. 258 (1820) ........... App. 9

Grannis v. Ordean, 234 U.S. 385 (1914)......... App. 23

Harris v. Hardeman, 14 How. 337, 14 L.Ed. 444

(TESS) ocagccacucsepesvecasigeekice acanacunees App. 4

Hartford Nat. Bank & Trust v. Tucker, 178 Conn.

472, 423 A.2d 141 (1979), cert. denied, 445 U.S.

904, 100 S.Ct. 1079, 63 L.Ed. 2d 309 (1980)....App. 8

Hartley v. Vitiello, 113 Conn. 74 (1931).......... App. 9

Hovey v. Elliot, 167 U.S. 409 (1896)............ App. 23

vii

TABLE OF AUTHORITIES - Continued _

Page

Harwood v. U.S. Shipping Board Corp., 300 F.

GP CRDOG) + vir cnc sicasavess sus seeschivawhrseses App. 13

Jacobsen v. Superior Court, 192 Cal. 319, 219 Pac.

FE ROPES 6h bonccdkerccnceseetevasacseevecsen App. 17

Jepsen v. Toni Co., 20 Conn. Sup. 287 (1957) .. App. 9, 10

Kawasaki, Kissen, Kaisha Ltd. v. Indomar Ltd.,

173 Conn. 269, 377 A.2d 316 (1977).......... App. 18

Keystone Bituminous Coal v. Debenedictis, 480

U.S. 470, 107 S.Ct. 1232, 94 L.Ed. 2d 472

ig PENT aero ae Mei es eos alee hr Se en ee OTe App. 16

Kimball Laundry v. United States, 338 U.S. 1

Bo. Pee a Srp ey Say eee re mE My pe ey App. 17

Kukanskis v. Griffith, 180 Conn. 501 (1980)..... App. 22

Lamothe v. Gordon, 15 Conn. Sup. 504 (1948)...App. 9

Lilly v. Claypool, 53 S.E. 22, 59 W. Va. 130

| ON Ee Recep Ss Se ae eg ae App. 19

Lynch v. Household Fin. Corp., 405 U.S. 538, 92

ie ie eR MR a Ro. Se App. 22

Lynk v. Laporte, 789 F.2d 554 (1986) ................ 18

Marshall v. Clark, 170 Conn. 199, 365 A.2d

EE SNS G5. 56 Sis Sch dewecdcewenk so ehaas 16, App. 16

Marshall v. Holmes, 141 U.S. 589 (1891)........ App. 14

Martin v. Hunters Lessee, 14 U.S. 1 Wheat. 304,

ee ces vic bas cos be cub eee tem Cakes 1, 16

Matthews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893,

ee ie” eo ee ee App. 24

Vili

TABLE OF AUTHORITIES - Continued

Page

Mitchell v. W.T. Grant Co., 416 U.S. 600, 94 S.Ct.

1095, 40 L.Ed. 20 406 (1974)... ccc cccciens App. 23

Morici v. Jarvie, 137 Conn. 97, 75 A.2d 47

CRDOE 66 ceca deus thn decusessad oan acn's ¥eeeeen App. 18

U.S. 306, 94 L.Ed. 865, 70 S.Ct. 652 (1950) ....App. 5

Munger v. Doolan, 75 Conn. 656, 55 Atl. 169

CROMED ses ask Saba cebu ends iaeceiadeeneraseviees App. 5

Musial v. State, 3 Conn. Supp. 159 (1935) ....... App. 9

New Haven v. East Haven, 35 Conn. Supp. 157

‘Ls igs Sener e MEP Cape eye Me mer ry Weer App. 15

New Haven Sandblast Co. v. Dreisbach, 104 Conn.

Ses Re Bhs ee I iio kn vc oan ee App. 18, 19, 26

North Georgia Finishing, Inc. v. DiChem Inc., 419

U.S. 601, 95 S.Ct. 719, 422 L.Ed. 2d 751

4: eer ee POE Te ye rr ee er hee te py ee App. 23

O’Leary v. Waterbury Title Co., 117 Conn. 39, 166 3

Pe oe? PPE rere rrr ry TEP er meer rT App. 10

Penn. Central Transp. v. New York, 438 U.S. 104,

98 S.Ct. 2646, 57 L.Ed. 2d 631 (1977), reh.

denied, 439 U.S. 883, 99 S.Ct. 226, 58 L.Ed. 2d

Rg Pee Or EE rE pore eT UE ee App. 16

Pennoyer v. Neff, 95 U.S. 714 (1877) ............006- 16

Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43

Gt. 156,67 La. 20 Sie USS) ce 0 es App. 17

Postal Telegraph Cable Co. v. Newport, 247 U.S.

GR: COTA oink ig 05 06d BARS ER EATER © URS 10

Reynolds v. Stockton, 140 U.S. 254, 11 S.Ct. 773

COINS i sok ec Ss Vedas Caney ceteadhs3vwerieen

ix

TABLE OF AUTHORITIES - Continued

Page

Rice v. Rice, 134 Conn. 440, 58 A.2d 523 (1948)... App. 10

Safford v. Morris Metal Products Co., 99 Conn.

Pe MA on oe ori enna cscs cin weneines eeaeen App. 9

Schroeder v. New York, 371 U.S. 208, 91 L.Ed. 2d

Say ee ce AFT LOMOEE s cc ec ccna cyewekecs cus App. 5

Shaw v. Spelke, 110 Conn. 208, 147 A 675

COE CHiN 8a kana kr end ha Ra a ae ea kes App. 18

Shelton v. Wolthausen, 80 Conn. 599 (1908).... App. 7, 44

Simmons v. Parizek, 158 Conn. 304 (1969)........... 11

Simmons v. Wetherall, #163875

tg a a ae aE ee ey 7, 12, 14, 15, App. 23

Simmons v. Wetherall, 472 F.2d 509 (1973)........... 12

Simmons v. Wetherall, 180 Conn. 587 (1980)... 8, App. 18

Simon v. Southern Railway, 236 U.S. 115 (1915)... App. 14

Sniadich v. Family Fin. Corp., 395 U.S. 337, 89

S.Ct. 1820, 23 L.Ed. 2d 349 (1969)............ App. 23

Standard Oil v. Missouri, 32 S.Ct. 409 (1911)...App. 11

Steinmetz v. Steinmetz, 125 Conn. 633, 7 A.2d

DUD LENSE) isos cance Nick p eam Rhheccs wads Oks aes App. 18

Strong v. Strong, 8 Conn. 408 (1831) ........... App. 10

Textron v. Wood, 167 Conn. 334 (1974).............. 10

Trumbull v. Ehrsam, 148 Conn. 47 (1961)..... ...... 10

United States v. Causby, 328 U.S. 256 (1946). .. -App. 18

United States v. Clarke, 445 U.S 253 (1980)..... App. 25

United States v. Cress, 243 U.S. 316 (1917) ..... App. 18

TABLE OF AUTHORITIES - Continued

Page

United States v. Fuller, 409 U.S. 488 (1973)..... App.

United States v. General Motors, 323 U.S. 373

t. . PRESET eeee ere ee err e Pee Tee App.

United States v. 40.379 Sq. Feet Land, 58 F. Supp.

ROG CON. WEMRG BOGE 6 oes iiieancn chee ewacivee App.

United States Ex. Rel. TVA v. Powelson, 319 U.S.

By RRs 55 iio nos 3 58e FURKS ON a App.

Weaver v. Ives, 152 Conn. 586 (1965)... repo ae, 2

Williams v. North Carolina, 325 U.S. 226, 65 S.Ct.

S002, OF Liki Se Cie 6 oe Faas co vee as App.

Windsor v. McVeigh, 93 U.S. 274 (1876)........ App.

Whitman v. Missouri State Hwy. Comm., 400 F.

Susp. 1000 GF. 0). BEG. ISTE) 8 nn ticnies's 15, App.

Wood v. Watkinson, 47 Conn. 500 (1879) ....... App.

Young v. Margiotta, 136 Conn. 429, 71 A.2d 924

Be Me rere re eer ee EOL SoC TT ee. App.

CONSTITUTIONS

Art. I § 11 Connecticut Constitution ................

Amendment V Constitution of United States

ia a a a ei a a 2, 9, 13, App.

Amendment XIV Constitution of United States

ine ea pe tease oe heiw tka een 2, 9, 12, 13, App. 14, 20,

STATUTES

Conn. Gen. Statute 8-129................ App. 4, 14,

Conn. Gen. Statute 196-30 ©... ccc cnscdececboess App.

24

17

17

24

11

10

Zo -

20

10

14

20

26

xi

TABLE OF AUTHORITIES - Continued

Connh(oen. Biatete Geld ic. 6. tei ssa cigaei es

Conn. Gen. Statute 48-17 a, b,c ...........

Coomih. Goamh; SURO SG ooo 6

Gtr SRP Fes nk 5 665.0 0 xahed py 004si owe ee

Coe ek eae ea 4, App. 13

49 C.F.R. Part 24 Subpart B § 24.102

acid Cin nine eavievegsyesanaewe 2, 3, 8, App. 4, 13, 21

ee i eee ayes eas 4

A oe ial cou se bdasdaiadasdes 1

Re as kas acy aeepetew 14

We GA DOMES CEE ko dso kee achcen bens tues

P.L. 91-646 (42 U.S.C. §§ 4601-4655).............

LEGISLATIVE MATERIAL

H.R. Rep. No. 91-1656, 91 Cong. 2d Sess. (1970)..... 14

1970 U.S. Code Cong. & Ad News 5853

; OTHER MATERIALS

Black on Judgments (2d Ed.) Vol. 1 § 215...... App. 19

Davis, Administrative Law Treatise, Vol. 3, § 27.03 .... 11

eevee eeeveee

a6¢06¢00 6

xii

TABLE OF AUTHORITIES - Continued

Page

Restatement, Judgments § 11 Comment C...... App. 10

47 Am. Jr. 2d Judgments §§ 752, 753.........-. App. 16

49 Am. Jr., States, Territories, Dependencies, Sec.

OPINION BELOW

Plaintiffs MOTION TO VACATE dated May 1, 2000

with sixteen (16) supporting exhibits is incorporated in

the APPENDIX at Pages 1 thru 125.

The ORDER, dated May 31, 2000 from the Chief

Clerk, Supreme/Appellate Courts reads:

The motion of the plaintiff, filed May 1, 2000, to

vacate, having been presented to the court, is hereby

ordered — DISMISSED.

It is further ordered that the plaintiff is hereby pro-

hibited from filing pleadings in this court that are related

to Docket Number CV 70-0163875.

By the Court,

Francis Drumm

Chief Clerk

JURISDICTION

The jurisdictional basis for the appeal is 28 USC

§ 1257 which had its origin in the act of September 24,

1789, 1 Stat. 73, 85, by that section, as construed in Martin

v. Hunter's Lessee, 14 U.S. 1 Wheat. 304, 364, 42 L.Ed. 97

(1816), strongly reinforced by Cohens v. Commonwealth of

Virginia, 6 Wheat. 264, 5 L.Ed. 257 (1821), the denial of a

claim of a federal right in the final judgment of the

highest available court of a state could be brought for

review at a bar of this court.

— ¢

STATUTE AND CONSTITUTIONAL PROVISIONS

Art. I § 11 Constitution of Connecticut

The Constitution of Connecticut provides that — “no

person shall be deprived of life, liberty, or property, with-

out due process of law.”

Amendment XIV, Constitution of the United States

“é

.. nor shall any state deprive any person of life,

liberty, or property, without due process of law; nor deny

to any person within its jurisdiction the equal protection

of the laws.”

Amendment V, Constitution of the United States

a

. nor shali private property be taken for public

use without just compensation.”

49 CFR § 24.102 BASIC ACQUISITION POLICIES

(a) Expeditious Acquisition. The agency shall make

every reasonable effort to acquire the real property expe-

ditiously by negotiation. :

(b) Notice to Owner. As soon as feasible, the owner

shall be notified of the agency’s interest in acquiring the

real property and the BASIC PROTECTIONS, including

the agency’s obligation to secure an appraisal, provided

to the owner by law and this part.

(c) Appraisal, Waiver Thereof, and Invitation to Owner.

(1) Before the initiation of negotiations the real property

to be acquired shall be appraised, except as provided in

§ 24.102 (c) (2), and the owner, or the owner’s designated

representative, shall be given an opportunity to accom-

pany the appraiser during the appraiser’s inspection of

the property.

(d) Establishment and Offer of Just Compensation.

Before the initiation of negotiations, the agency shall

establish an amount which it believes is just compensa-

tion for the real property. The amount shall not be less

than the approved appraisal of the fair market value of

the property, taking into account the value of allowable

damages or benefits to any remaining property. Promptly

thereafter, the agency shall make a written offer to the

owner to acquire the property for the full amount

believed to be just compensation.

(e) Summary Statement. Along with the initial writ-

ten purchase offer, the owner shall be given a written

statement of the basis for the offer of just compensation,

which shall include: (1) A statement of the amount

offered as just compensation. In the case of a partial

acquisition, the compensation for the real property to be

acquired and the compensation for damages, if any, to the

remaining real property shall be separately stated. (2) A

description and location identification of the real prop-

erty and the interest in the real property to be acquired.

(3) An identification of the buildings, structures, and

other improvements which are to be considered to be part

of the real property for which the offer of just compensa-

tion is made.

(f) Basic Negotiation Procedures. The agency shall

make reasonable efforts to contact the owner or the

owner’s representative and discuss its offer to purchase

the property, including the basis for the offer of just

compensation; and, explain its acquisition policies and

procedures, including its payment of incidental expenses

in accordance with 49 C.F.R. § 24.106. The owner shall be ~

given reasonable opportunity to consider the offer and

present material which the owner believes is relevant to

determining the value of the property and to suggest

modification in the proposed terms and conditions of the

purchase. The agency shall consider the owner’s presen-

tation.

(g) Updating Offer of Just Compensation. If the infor-

mation presented by the owner, or a material change in

the character or condition of the property indicates the

need for new appraisal information, or if a significant

delay has occurred since the time of the appraisal(s) of

the property, the agency shall have the appraisal(s)

updated or obtain a new appraisal. If the latest appraisal

information indicates that a change in the purchase offer

is warranted, the agency shall promptly reestablish just

compensation and offer that amount to the owner in

writing.

(h) Coercive Action. The agency shall not advance

the time of condemnation or defer negotiations or con-

demnation or the deposit of funds with the court, or take

any other coercive action in order to induce an agreement

on the price to be paid for the property.

(i) Administrative Settlement. The purchase price for

the property may exceed the amount offered as just com-

pensation when reasonable efforts to negotiate an agree-

ment at that amount have failed and an authorized

agency official approves such administrative settlement

as being reasonable, prudent, and in the public interest.

(j) Payment Before Taking Possession. Before requiring

the owner to surrender possession of the real property,

the agency shall. pay the agreed purchase price to the

owner, or in the case of a condemnation, deposit with the

court, for the benefit of the owner, an amount not less

than the agency’s approved appraisal of the fair market

value of such property, or the court award of compensa-

tion in the condemnation proceeding for the property. In

exceptional circumstances, with the prior approval of the

owner, the agency may obtain a right-of-entry for con-

struction purposes before making payment available to

an owner.

(k) Uneconomic Remnant. If the acquisition of only a

portion of a property would leave the owner with an

uneconomic remnant, the agency shall offer to acquire the

uneconomic remnant along with the portion of the prop-

erty needed for the project.

(1) Inverse Condemnation. If the agency intends to

acquire any interest in real property by exercise of the

power of eminent domain, it shall institute formal con-

demnation proceedings and not intentionally make it nec-

essary for the owner to institute legal proceedings to

prove the fact of the taking of the real property.

(m) Fair Rental. If the agency permits a former

owner or tenant to occupy the real property after acquisi-

tion for a short term or a period subject to termination by

the agency on short notice, the rent shall not exceed the

fair market rent for such occupancy.

®

STATEMENT OF THE CASE

This case is an AIRPORT-related case that transcends

back to a 1955 Federal-Aid Grant Agreement between

federal and state agencies wherein the state agency (Con-

necticut Dept. of Transportation) was obligated under the

grant agreement to acquire “satisfactory property inter-

ests” as defined in 14 C.FR. § 152.3 for what would

ultimately become a navigational servitude imposed

upon the owner by the federal agency (F.A.A.) with the

invasion, appropriation, installation on the surface of the

real property, sophisticated navigational instrumentation

controlling ingress and egress of air traffic at Bradley

Airport, Connecticut’s premier airport in the summer of

1962.

Starting on February 28, 1962 with a tortious course

of conduct, the state agency initiated the first condemna-

tion that was negated by the courts as arbitrary, uncon-

stitutional with procedural problems (153 Conn. 351

(1966)) and was remanded.

In January, 1968 the state instituted condemnation

proceedings a second time under Conn. General Statute

§ 48-12, in lieu of C.G.S. § 15-79 and again the court ruled

the proceeding “null and void”. (160 Conn. 492 (1971))

During the 1969 session of the Connecticut Legisla-

ture a special act was passed by the general assembly

allowing Augustus Simmons to sue the state for DAM-

AGES over “loss of use of land” arising out of the bum-

bling condemnation proceedings. On January 5, 1970

Plaintiff/Owner Simmons brought such a suit Simmons v.

Wetherall, Docket #163875 which had several hearing

dates scheduled that were all aborted. To date, damages

have not been addressed and the action is still pending.

During the summer of 1974 the federal agency,

F.A.A., without having paid any compensation, intended

to upgrade the navigational servitude with the addition

of a “middle marker” on private property and in lieu of

negotiating a lease with the owner, enters into a lease

with the sponsor of the airport, notwithstanding they had

full knowledge that title reverted back to the owner on

the land records on March 24, 1972 after the second

condemnation was ruled null and void.

In December, 1977, plaintiff retained the firm of

Rogin-Hirtle,-Esq.’s to represent him upon scheduled

days for hearings in damages before referee Shapiro and

the very first act of private counsel was an attempt to

give the state (and the F.A.A.) “complete insulation from

and absolution from all of its sins” by invalidating the

hearings in damages and for which a dismissal, dis-

charge, in writing, was hand delivered on December 23,

1977. The discharge of 12/23/1977 was not sufficient to

curb the tortious course of conduct.

: Where the matter of subject matter jurisdiction and of

indispensable parties was ARGUED before the court of

competent jurisdiction, Hon. Dupont, A., on June 7, 1982

and the STATE vigorously and vehemently challenged the

superior court with lack of subject matter jurisdiction and

the court, so recognizing, denied compensation from the

slush fund to indispensable parties (VALENTE-

ALLAIRE), yet, did not, would not set aside the void

decree due to a supreme court ruling under Simmons v.

Wetherall, 180 Conn. 587 (1980).

Where the “Slush Fund” monies were allowed to

remain before the court from 1978 to 1991 before return-

ing said monies to the state treasury, signifies FEDERAL

QUESTION VIOLATIONS of the most severe nature,

extending indefinitely the original unlawful, unconstitu-

tional entry by the F.A.A. and the State of Connecticut.

*

REASONS FOR GRANTING THE WRIT

1. Where all states, including Connecticut, must

comply with the land acquisition procedures promul-

gated under the Uniform Real Property Acquisition Act,

P.L. 91-646 (1971), 42 USC §§ 4601-4655, where major

federal airport projects and federal-aid grant agreements

were entered into by federal and state agency’s that

resulted in the owner being given a WRITTEN NOTICE

TO VACATE the farm operation (Ex. #10) making the

owner a DISPLACED PERSON under 42 USC § 4601(b)

and assured the BASIC PROTECTIONS under 49 CFR

§ 24.102 and the procedural assurances of 49 USC § 4655.

2. Where plaintiff’s claim is one arising under the

federal constitution, the question whether the plaintiff

has been accorded due process of law — using that term in

its primary sense of an opportunity to be heard and to

defend its substantive right, for, if permitted to stand,

deprivation of plaintiff's property is accomplished with-

out its ever having had an opportunity to defend against

the exaction.

3. Where the unconstitutional acts of the state led to

the legislation by the state legislature (Special Act #170

(1969)) requiring compensation for such damages having

accrued under which the VESTED PROPERTY RIGHTS of

the plaintiffs are asserted, and such legislation was but-

tressed with FEDERAL LEGISLATION, Title HI of Public

Law 91-646 (1971) (42 USC §§ 4601-4655) that is applica-

ble where federal projects and grant agreements are at

issue, such vested rights cannot be DENIED, DEPRIVED,

DESTROYED of the right so vested, by the state Supreme

Court without a violation of rights guaranteed by the

Fifth and Fourteenth Amendments.

A state statute giving compensation for consequential

damages does not merely provide a remedy but creates a

property right; to repeal, destroy, invalidate such a stat-

ute so as to affect rights actually obtained thereunder is a -

deprivation of property without due process of law as

guaranteed by the Fourteenth Amendment. Ettor v. Ta-

coma, 228 U.S. 148 (1913).

4. Where the federal guaranty of due process under

federal regulations is mandated in the Federal Grant

Agreement #9-06-009-5708, Sec. 2 (b) (Ex. # 10) the spon-

sor shall:

“Carry out and complete the project in accordance

with the terms of this offer, and the Federal Airport Act

and the regulations promulgated thereunder by the

administrator in effect on the date of this offer, which act

and regulations are incorporated herein and made a part

10

hereof,” has been totally and completely ignored, disre-

garded, the federal guaranty of due process that extends

to state action through its judicial as well as through its

legislative, executive, and administrative branches of

government mandates compliance with the agreement -

“understood and agreed by and between the parties

hereto (Sec. 9)” — to the following insertion.

“The airport approach standards to be followed in

performing the covenants contained in this paragraph

shall be those established by the administrator in office of

airports drawing No. 814, dated April 26, 1950 unless

otherwise authorized by the administrator.”

Whether acting through its judiciary or through its

legislature, a state may not deprive a person of all exis-

ting remedies for the enforcement of a right, which the

state has no power to destroy, unless there is, or was

afforded to him some real opportunity to protect it. Postal

Telegraph Cable Co. v. Newport, 247 U.S. 464, 475-6.

5. The Connecticut Supreme Court has indicated on

several occasions that the Doctrine of Sovereign Immu-

nity is not available to the state as a defense to claims for

just compensation arising under ARTICLE FIRST, Section

11, of the Connecticut Constitution. Textron v. Wood, 167

Conn. 334, 342 (1974). “When possession has been taken

from the owner, he is constitutionally entitled to any

damages which he may have suffered, and if our statute

failed to provide a remedy he could, nevertheless, sue to

recover such damages, 6 Nichols, Eminent Domain, Sec-

tion 26.42[1].” Trumbull v. Ehrsam, 148 Conn. 47, 55-56.

“We have further stated that for this reason, ‘where

the state takes property no specific permission to sue is

11

necessary.” Anselmo v. Cox, 135 Conn. 78, 81, “State

officials cannot . . . shield themselves with sovereign

immunity if a party alleges and proves they took or

retained his property in a manner which was either

unconstitutional or unauthorized by statute.” Simmons v.

Parizek, 158 Conn. 304, 307. See also 49 Am. Jur., States,

Territories, and Dependencies, Sec. 113; Davis, Adminis-

trative Law Treatise, Vol. 3, Sec. 27.03.

Since the legislature granted “SPECIAL PERMIS-

SION” notwithstanding any other state statutes or federal

regulations, that the defendants have been acting ille-

gally, unconstitutionally, and in excess of any statutory

authority, the action is not to be treated as one against the

state before it can be maintained. Weaver v. Ives, 152

Conn. 586, 591. -

6. Plaintiff's Motion to Vacate presents a very sub-

stantial federal question of thirty-six (36) years of occu-

pancy without ANY just compensation where

defendant’s, Federal Aviation Administration (FAA), act-

ing as trespassers, has not paid any just compensation

under the Federal Grant Agreement (Ex. #10) to the state

or the owner and the federal funds allocated for the

project were returned to their general fund and the state

agency, not having made any determinations of value, or

damages, or written statements of compensation, or

mesne process of any nature, the unconstitutional “slush

fund,” conjured up by discharged and withdrawn private

counsel, was returned to the State Treasury by the Supe-

rior Court who were without subject matter jurisdiction.

12

7. Whether the transmogrification by the state

Supreme Court of plaintiff’s tort action for damages (Sim-

mons v. Wetherall, #163875) into a federally occupied emi-

nent domain land “FREEZING” transgressed the due

process clause of the Fourteenth Amendment.

8. The denial by the state Supreme Court of access

to the state courts for Docket #163875 to pursue — unad-

dressed —- damages - which the state has no power to

deny, destroy, invalidate, unless there is, or was, afforded

to him some real opportunity to protect it.

Where in plaintiff’s pursuit for just compensation in

the federal court system plaintiff has been denied access

to the federal courts on the theory of RES JUDICATA,

AFTER the Second Circuit, Court of Appeals remanded in

472 F.2d 509 (1973) plaintiff’s civil rights claim that fed-

eral instrument landing system lights were installed on

plaintiff’s Parcel “C,” WITHOUT COMPENSATION, by

the federal agency (FAA) and the state was required

under the Federal Grant Agreement to get proper TITLE

and after two (2) unsuccessful condemnations, TITLE was

restored in the owner on the land records in 1972 at Vol.

52, p. 242-243 and TAXES were again being assessed

against the owner, not withstanding the federal intrusion

and occupancy, and, TITLE remains currently in the

plaintiff / owner.

Where the government has denied petitioner eco-

nomically viable use of the land during the pendency of

all suits in both federal and state courts for a TAKING

that has been effected by a putative exercise of the

POLICE POWER, with reliance upon the unconstitutional

application of the state Supreme Court decree - VOID on

13

the face of the record, the enjoining of plaintiff from

further Federal District Court actions and imposing sanc-

tions is an abrogation of the owner’s right to seek and

determine just compensation under the Fifth and Four-

teenth Amendments.

LIST OF FEDERAL COURT PROCEEDINGS

U.S. Court

of Appeals for U.S. Supreme

U.S. District Court the Second Circuit Court

a. H-81-778 )

(JAC) 1981 +)

)

b. H-83-225 )

(TEC) 1983)

Consolidated- 83-6257 (83) 83-1833

dismissed affirmed cert. denied

8/16/83 (JAC) 10/1/84

c. H-85-45 85-6087 (85) —

1985 affirmed -

dismissed Notice of future

sanctions

d. H-87-732 (JAC) 88-6093 (88) 88-693

1987 affirmed cert. denied

dismissed sanctions imposed 11/28/88

enjoined from

~ further federal

district court

actions

9. Where real property leases of plaintiff’s Parcel

“C” were entered into between the sponsor, Connecticut

Department of Transportation and the Federal Aviation

Administration (FAA) with navigational instrumentation

14

on the surface of the property, being fully aware there

was no action before the court for acquisition, being fully

aware the previous actions before the state court were all

ruled null and void, being aware neither federal or state

agencies paid any compensation to the land owner, being

fully aware as TRESPASSERS they were committing an

unconstitutional act, still entered into several leases (Ex.

#14) of the subject property and the attempt to “CON-

CEAL” was a misprision of a felony, and, the denial by

the state Supreme Court to pursue just compensation

(damages) under the #163875 legislative mandate is a

grossly unconstitutional federal deprivation of just com-

pensation under the federal constitution - that must be

reversed.

10. The state Supreme Court having dismissed

plaintiff's MOTION TO VACATE, sua sponte, without

deciding whether the allegations, presenting a claim

under the equal protection clause, were sustained by

proof, this court is pleaded to in prayer for reversal of the

state Supreme Court decree and remand the case for

further proceedings under federal regulations and pro-

cedures as delineated by Sec. 213 of P.L. 91-646 (42 USC

§ 4633) where the legislative history of the act, which

states that: “[I]t is immaterial whether . . . federal funds

contribute to the cost of the real property. The controlling

point is that the real property must be acquired for a

federal or federal financially assisted program or pro-

ject.” H.R. Rep. No. 91-1656, 91st Congress, 2d sess. 1970,

reprinted at 1970 U.S. Code Cong. & Ad News 5853

giving as an example a state’s acquisition of rights-of-

way, for a federal-aid highway, with nonfederal funds.

See City of Columbia, S.C. v. Costle, 710 F.2d 1009 (1983).

15

It is unmistakable from the plain language of § 4655

of the Uniform Act that where, as a result of the real

property occupancy and the displacement of the plaintiff

from the farm operation, the states must comply with the

land acquisition procedures specified in § 4651.

It is equally undisputed in the present case that the

acquisition of the real property is/was a necessary inci-

dent to the construction of federal navigational instru-

mentation by the federal agency (FAA) for the control of

ingress and egress of air traffic to the primary runway at

the airport and such construction falls within the provi-

sions of § 4655.

The precise language of § 4655 indicates that a state

must be guided, “to the greatest extent practicable under

state law” by the § 4651 procedures. The courts have

concluded that by “practicable” Congress intended to

have the grant recipient comply with the § 4651 pro-

cedures to the fullest extent to which it is legally capable

of complying under state law. See Beaird-Poulan, Inc. v.

Louisiana Dept. of Highways, 497 F.2d 54, 58 (5th Cir.) cert.

denied, 420 U.S. 990, 95 S. Ct. 1424, 43 L.Ed. 2d 670 (1974);

Whitman v. Missouri State Highway Commission, 400 F.

Supp. 1050, 1066-68.

¢

ARGUMENT

The constitutional validity of a decree by the state

Supreme Court acting under a special legislative enact-

ment (Special Act. #170 (1969), Simmons v. Wetherall,

#163875 (1970)) does not authorize such unconstitutional

conduct as was entered in this cause on the land records

16

but not with the trial court or court of first instance by

twice discharged private counsel who had officially with-

drawn from representation of the owner on April 19,

1978, prior to entering “supplemental judgments” ex parte

on June 2nd and 5th on the land records; prior to service

of process or publication of notice — that was never made.

See Pennoyer v. Neff, 95 U.S. 714 (1877), also Brandriff v.

Sellas, 40 Conn. Sup. 243 (1985), Marshall v. Clark, 170

Conn. 199 at 205 (1976), denying all rights to plaintiff

upon a seizure of federal grant agreement real property,

occupied and used by governmental agency action,

F.A.A., who were never mentioned or made a party to

any proceedings for airport navigational installations,

without condemnation or exercise in eminent domain or

payment of just compensation; where plaintiff alleged

that the omission of the name, title, and interest, of said

plaintiff by said private counsel (Rogin-Hirtle, Esq.’s), or, -

to serve upon said plaintiff any personal notice of the fact

of the filing of the said “supplemental judgment” or of

the hearing thereon were and each of them was willful,

intentional fraud and done for the purpose of defrauding

said plaintiff and depriving it of its said interest in said

premises without the basic, fundamental due process of

law; whose arbitrary, oppressive, unjust, unconstitutional

and fraudulent conduct was terminated with two (2) dis-

charges and a withdrawal from representation on April

19, 1978, prior to “freezing” governmentally occupied

real property on June 2nd and 5th without subject matter

jurisdiction or jurisdiction of the parties, and, no returns

of service to the Superior Court that would give the trial

court jurisdiction and where the statute (Special Act #

170) makes provision for damages that was invalidated,

17

destroyed was an infringement of plaintiff’s constitu-

tional rights for just compensation.

‘Where the Supreme Court dismissed the most recent

MOTION TO VACATE, dated May 1, 2000 for assessment

of damages, and, where a “TAKING” for public use with-

out compensation can be corrected by payment, while a

governmental action that violates due process require-

ments may be invalidated, without regard to whether

compensation is provided and where the highest court of

a state transmogrified plaintiff’s tort action into an emi-

nent domain action that is repugnant to the Constitution,

treaties, laws of the United States, the validity of such.

exercise is the question for review.

2

18

CONCLUSION

As the SUPREME COURT OF CONNECTICUT did

not decide whether the allegations under plaintiffs

MOTION TO VACATE (May 1, 2000) were sustained by

the proof that the state court violated federally protected

equal protection and due process rights under the federal

constitution. (Allah v. Superior Court of Cal., 871 F.2d 887)

and the litigant is stymied by the state procedural ruling

from which he cannot appeal, plaintiff prays for review

by the SUPREME COURT OF THE UNITED STATES of

that ruling (Lynk v. Laporte, 789 F2d 554), that is an

important public issue.

Respectfully submitted,

Aucustus J. Simmons, Petitioner

P.O. Box #1

Windsor, CT 06095

(860) 569-6714

App. 1

STATE OF CONNECTICUT

SUPREME COURT

NO. HHD CV70-0163875S

AUGUSTUS J. SIMONS [sic]

v.

HORACE B. WETHERALL ET AL. : MAY 31, 2000

ORDER

THE MOTION OF THE PLAINTIFF, FILED MAY 1,

2000, TO VACATE, HAVING BEEN PRESENTED TO THE

COURT, IS HEREBY ORDERED DISMISSED.

IT IS FURTHER ORDERED THAT THE PLAINTIFF

IS HEREBY PROHIBITED FROM FILING PLEADINGS

IN THIS COURT THAT ARE RELATED TO DOCKET

NUMBER CV70-0163875.

BY THE COURT,

/s/ Francis J. Drummer

CHIEF CLERK

NOTICE SENT: MAY 31, 2000

AUGUSTUS SIMMONS, PRO SE

PAUL K. PERNEREWSKI, ASSISTANT ATTORNEY

GENERAL

ROGIN, NASSAU, CAPLAN, LASSMAN & HIRTLE

CLERK, HARTFORD J.D.

HON. JOHN J. LANGENBACH

App. 2

SUPREME COURT

STATE OF CONNECTICUT

TO THE HONORABLE CHIEF JUSTICE AND

MEMBERS OF THE SUPREME COURT

DOCKET # 163875 ‘

AUGUSTUS J. SIMMONS

VS. (MAY 1, 2000)

HORACE B. WETHERALL, et al

MOTION TO VACATE

Plaintiff, Augustus J. Simmons, moves the Supreme

Court to vacate its prior judgments, decrees, decisions

with respect to Simmons vs. Wetherall, Docket #163875,

VOID ON ITS FACE on account of; IRREGULARITY IN

THE JUDGMENT OR ORDER; TOTAL DISREGARD FOR

MANDATORY FEDERAL LAW WHERE FEDERAL PRO-

GRAMS, PROJECTS, AND FEDERAL FUNDS FOR AIR-

PORT PURPOSES ARE AT ISSUE; BY ITS UNJUST,

UNCONSTITUTIONAL, UNCONSCIONABLE DECREES

HAS DENIED, AND CONTINUES TO DENY JUST COM-

PENSATION FOR IN EXCESS OF THIRTY-FIVE YEARS;

WITHOUT SERVICE OF PROCESS, ACTUAL OR CON-

STRUCTIVE; TRANSMOGRIFIED PLAINTIFF’S TORT

MATTER INTO AN EMINENT DOMAIN ENDEAVOR;

WHERE THE STATE SUPREME COURT BY ITS DECREE

BREACHED THE FEDERAL AND STATE CONSTITU-

TION.

App. 3

MEMORANDUM OF LAW - AND FACT

1. The rule is formulated in Prince vs. Thomas, 11

Conn. 472, as follows: “If a warrant issues from a magis-

trate or officer of special and limited powers, who has not

jurisdiction of the person, subject matter and process, all

who are voluntarily and actively engaged in its procure-

ment and execution are trespassers.”

2. In this case the jurisdiction over the parties and

process turns on the question whether the discharged and

withdrawn private counsel (Rogin-Hirtle, esq’s) had

jurisdiction over the subject matter. “Jurisdiction of the

subject matter is the power to hear and determine cases

of the general class to which the proceedings in question

belong.” 15 Corpus Jurus, 734, and many cases cited.

3. The Supreme Court of the United States defines

jurisdiction as “the right to adjudicate concerning the

subject matter in the given case. To constitute this there

are three essentials: first, the court must have cognizance

of the class of cases to which the one to be adjudged

belongs; second, the proper parties must be present; and

third, the point decided must be in substance and effect

within the issue.” Reynolds vs. Stockton, 140 U.S. 254, 268,

11 Sup. Ct. 773.

VOID JUDGMENT

4. A judgment void on its face may be vacated upon

motion, no matter what length of time has interposed

since its rendition; neither is it necessary for the movant

to show any meritorious defense, nor can the court

App. 4

impose any conditions for vacating it. Harris vs. Harde-

man, 14 How. 337, 14 L. Ed. 444; Furman vs. Furman, 60

Am. St. Rep. 642-643; Blythe & Fargo Co. vs. Swenson, 15

Utah 345, 49 Pac 1027.

5. The law is thus stated in Freeman on Judgments

(4th Ed.) § 495: “A judgment pronounced without service

of process, actual or constructive, and without the defen-

dant’s knowledge that a court had been asked to adjudi-

cate upon his rights is regarded with such disfavor at law

that a variety of motions, writs, and proceedings are there

provided to overthrow it; and in many courts it is at all

times.and upon all occasions liable to be entirely disre-

garded upon having its jurisdictional infirmity exposed.

But proceedings in equity are peculiarly appropriate for.

the exposure of this infirmity. They permit of the forma-

tion of issues upon the question of service of process, and

of the trial of those issues after full opportunity has been

given to those who seek to sustain as well as those who

seek to avoid the judgment. If at such trial it satisfactorily

appears that the defendant was not summoned and had

no notice of the suit, a sufficient excuse is shown for his

neglect to defend, and equity will not allow the judg-

ment, if unjust, to be used against him, — ‘no matter what

jurisdictional recitals it contains.’ ” (italics ours)

IRREGULARITIES

6. Relief based on extrinsic evidence may be had

against a judgment rendered without notice and service

of process, whether by PURCHASE, LEASE, GIFT,

EXCHANGE, or the EXERCISE OF EMINENT DOMAIN

under C.G.S. §§ 8-129 and 52-57 (manner of service) or 49

App. 5

C.F.R., Part 24, Subpart B (24.102 — basic acquisition pro-

cedure) where federal grant agreements, projects, funds,

are at issue as in case at bar, empowering the “Supreme

Court” to vacate its own judgments, at any time, on

account of “IRREGULARITY IN OBTAINING A JUDG-

MENT OR ORDER.” It needs no extended argument to

make the point that no judgment purporting to bind the

property of a defendant has any validity unless a means

reasonably calculated to give notice to all necessary and

indisposable parties has been employed. Mullane vs. Cen-

tral Hanover Bank and Trust Co., 339 U.S. 30b, 314 94 L. Ed.

865, 870, 70 S.Ct. 652; Schroeder vs. New York, 371 U.S. 208,

91 L. Ed. 2d 255, 83 S.Ct. 279 (1962).

7. The Connecticut statutes make detailed provision

for such notice and there is little doubt that, if the statutes

are followed, the notice requirements of due process will

be met. Strict compliance with the notice provisions of

the statutes is required under Connecticut law and not to

be — “disregarded with impunity nor waived or changed

by the courts.” Munger vs. Doolan, 75 Conn. 656, 659, 55

Atl. 169 (1903), paraphrased with approval in Carter vs.

Carter, 147 Conn. 238, 242, 159 A 2d 173 (1960).

8. That the NOTICE and SERVICE requirements

under the due process clause were totally and completely

disregarded with impunity and deliberate, malvolence

[sic] by the Supreme Court of Connecticut, acting in

concert with discharged and withdrawn private counsel

(Rogin-Hirtle, esq’s) is evidenced by the fact that the

Superior Court never acquired subject matter jurisdiction

or jurisdiction of the parties where there was NO

RETURN OF SERVICE to the Superior Court.

7

App. 6

9. Where a client has a right to discharge a lawyer,

at any time, with or without cause, per rule 1.16 of

Practice Book and after the second notice the authority,

power, right, jurisdiction to act was “surrendered” with a

withdrawal upon plaintiff’s refusal to tender any deeds

or entertain any unconstitutional “VERBAL” offers pro-

vides the answers to why there is not, was not, could not

be any service, hearings, decisions, judgments of or by

the Superior Court and the Connecticut Supreme Court

acting on the unconstitutional, fraudulent, felonious, in

violation of federal and state law post-withdrawal activ-

ity of the discharged and withdrawn private counsel

(Rogin-Hirtle, esq’s) was a breach of the federal and state

constitution. The track record to wit:

a) Written discharge on 12/23/77 — Ex. #1

b) Second notice on 4/12/78 — Ex. #2

c) Withdrawal from representation 4/19/78 — Ex. #3

| d) (PJ.R) lawsuit against owner for counsel fees

4/20/78 — Ex. #4

10. That there was no notice, service, proceedings,

judgments, docket number before the Superior Court was

illuminated, made a matter of evidence in August 1979,

prior to the Supreme Court decision of May 1980 (180 c

587), wherein Hon. Superior Court Judge John Daly after

having granted a motion of Jason Pearl, esq. representing

the withdrawn attorney’s for unconstitutional funds sub-

mitted to the Superior Court by withdrawn counsel, was,

on August 30, 1979 VACATED, RESCINDED regards any

consideration for compensation upon a submission of a

citation from the Chief Clerk of Superior Court (Lucian

App. 7

Jachomovitz) to the Hon. John Daly. The reason for re-

scinding was: “Based on Shelton vs. Wolthausen, 80 c 599

(furnished by Lucian), I would have no authority to grant

this motion. Will you kindly notify Jason Pearl regarding

this and if he wishes to argue the matter put it down.” Ex.

#5

The opening paragraph of Shelton, Supra, reads:

“Where money is paid into court in an action to deter-

mine its ownership, it is in the custody of the law, and is

to be disposed of only through the medium of proceed-

ings had in or relating to that cause.” The reason that the

unconstitutional funds were returned to the state treasury

on December 23, 1991 was the lack of proceedings and

jurisdiction by the Superior Court.

11. The land records of the town of East Granby

show the court stamp and signature of Thomas Abraham,

PREDECESSOR to Lucian Jachomovitz on certain of the

post-withdrawal activity of Rogin-Hirtle, esq’s, including

Vol. 59, p. 657-668 that contains a citation at pages

661-662 with a return date of the first Tuesday of July,

1978 that was collusion, conspiracy, a falsification of pub-

lic documents between the former clerk and the law firm

of Rogin-Hirtle. Where the Rogin-Hirtle firm acted —- “as

their own sheriff” after withdrawal and could not serve

any of the necessary parties, the listing of a return date

was an intentional, felonious falsification of public docu-

ments, an improper return day that does not give the

court jurisdiction where there was no process of service

BEFORE or AFTER the return day and such proceedings

for its enforcement may, in collateral proceedings be dis-

regarded and treated as a nullity. From Galpin vs. Page, 18

Wall. 350: “It is a rule as old as the law, and never to be

\

App. 8

respected than now, that no one shall be personally

bound until he has had his day in court, by which is

meant, until he is duly cited to appear, and has been

afforded an opportunity to be heard. Judgment without

such citation and opportunity wants all the attributes of a

judicial determination. It is judicial usurpation and

oppression and never can be upheld where justice is

justly administered. * * * “Judgment without jurisdiction

is unavailing for any purpose.”

Will the court protect and give effect to such a fraud?

From Coit vs. Haven, 30 Conn. 190 at p. 199: “They say,

with great emphasis, and.the argument is certainly a

forcible one, can it be that a clerk of the court may

fabricate a record, or an officer make a false return of

service, and yet there be no escape for one who is thus by

a judgment in the suit made heavily indebted, or found

guilty of a wrong, when in fact he is perfectly innocent,

or never owed the debt, and could show it clearly if he

had a chance? Will a court, they ask, because it has a

general jurisdiction, protect and give effect to such a

fraud?....”

12. The owner in his Motion to Vacate contends that

the discharged and withdrawn private counsel’s choice of

an improper “bogus” return day of the first Tuesday of

July, 1978 was an incurable defect that deprived the court

of subject matter jurisdiction. It cannot be disputed that

an improper return day affects the court’s jurisdiction.

Brandriff vs. Sellas, 40 Conn. Sup. 243; Hartford National

Bank & Trust Co. vs. Tucker, 178 Conn. 472, 478-79, 423 A

2d 141 (1979) cert. denied, 445 U.S. 904, 100 S.Ct. 1079, 63

App. 9

L. Ed. 2d 319 (1980). Having “surrendered” their author-

ity, their right to encumber the property, the incorpora-

tion of the return day, regardless what day or month was

interjected, it was fraud against the owner, fraud upon

the court. 2

RETURN DAY

13. Section 7767 (51-347) of the general statutes

expressly provides that process in civil actions returnable

to the Superior Court - “shall be returned . . . to the clerk

of such court at least six days before the return day.” The

statute is MANDATORY and failure to return the process

to court within the time limited renders the attachment

proceedings fatally defective. Daley vs. Board of Police

Commissioners, 133 Conn. 716, 719; Hartley vs. Vitiello, 113

Conn. 74, 79; Safford vs. Morris Metal Products Co., 99

Conn. 372, 376; Chevalier vs. Wakefield, 85 Conn. 374, 375;

Dillon vs. Fahey, 88 Conn. 605, 607; Gaylord vs. Payne, 3

Conn. 258; Lamothe vs. Gordon, 15 Conn. Sup. 504; Musial

vs. State, 3 Conn Sup. 159, 160; see also Jepsen vs. Toni Co.,

20 Conn. Sup. 287, 295. See also #8 and #10 of this

motion.

Private councel [sic] (Rogin-Hirtle) having “surren-

dered” their authority, their right to encumber or dele-

gate to a sheriff the compliance with the return day

mandate, regardless of what day or month was an inten-

tional, malicious, federal and state constitutional viola-

tion with malicious overtones, that_was nullified with the

owner filing a “DISSOLUTION OF ATTACHMENTS

PURSUANT TO CGS § 52-327 on December 2, 1996. Ex.

#6

App. 10

The owner/plaintiff/defendant’s motion that the

process be vacated because it was not returned to court in

accordance with statutory requirements - APPEARS

UPON THE FACE OF THE RECORD.

Owner’s Motion to Vacate - must be granted -

because the process was not returned not later than six

days before the return day. Jepsen vs. Toni Co., Supra, at

page 294.

JUDGMENT - RETURN DAY

14. Judgment can only be entered AFTER jurisdic-

tion of the parties is acquired in the manner prescribed by

law and does not transcend, in the extent or character of

its judgment, the law which is applicable to it. O’Leary vs.

Waterbury Title Co., 117 Conn. 39, 43, 166 A 673.

The rendering of judgments prior to the return day

are, ipso facto, null and void. Brandriff vs. Sellas, 40 C.S.

243, 245.

15. No principle is more universal than that the

judgment of a court without jurisdiction is a nullity. Clo-

ver vs. Urban, 108 Conn. 13, 17, 142 A 389; Wood vs.

Watkinson, 47 Conn. 500, 503; Strong vs. Strong, 8 Conn.

408, 412; I. Freeman Judgments (5th Ed.) p.-668; 31 Am.

Jur. 72 § 409. Such a judgment, whenever and wherever

declared upon as a source of a right, may always be

challenged. Restatement, judgments, § 11 comment c; see

Frick vs. Hartford Life Ins. Co., 98 Conn. 251, 255, 119 A

229. This does not offend the full faith and credit clause

of the federal Constitution. Williams vs. North Carolina,

325 U.S. 226, 229, 65 S.Ct. 1092, 89 L. Ed. 1577; see Rice vs.

App. 11

Rice, 134 Conn. 440, 445, 58 A 2d 523; Hooker vs. Hooker,

130 Conn. 41, 47, 32 A 2d 68. Nor does it violate the

principles of comity. Freund vs. Burns, 131 Conn. 380, 385,

40 A 2d 754.

16. Where the record is ultra clear the DIS-

CHARGED ATTORNEY’S ARE ENCUMBERING THE

REAL PROPERTY ON JUNE 2nd and 5th, 1978 WITH A

“BOGUS” RETURN DAY, is raw “POLICE POWER” that

the Connecticut Supreme Court cannot, should not, sub-

scribe to or sanction.

DUE PROCESS IRREGULARITIES

17. That there were NO proceedings, o’ any nature,

at the lower Superior Court level is evidenced by the

brief submitted to the Supreme Court by Atty. Ron Cassi-

dento representing the owner (plaintiff /defendant) under

STATE OF CONNECTICUT vs. AUGUSTUS SIMMONS, ‘

Docket #202121 (consolidated appeal) that was

REJECTED by Chief Appelate [sic] Clerk Francis Drumm

and Atty. Cassidento was informed he could REFILE

under AUGUSTUS SIMMONS vs. HORACE B.

WETHERALL (consolidated appeal) - BRIEF OF DEFEN-

DANTS-APPELLANTS, not withstanding the owner was

the plaintiff in the legislative enactment (Special Act

#170-1969, Simmons vs. Wetherall). Such TRANS-

MOGRIFICATION is unconstitutional and a gross abuse

of the due process clause. Ex. #7

Under federal question in Standard Oil Co. vs. Mis-

sourit, 32 Supreme Court at page 409 the court is quoted:

“Though the court may possess jurisdiction of a cause, of

the subject matter, and of the parties, it is still limited in

App. 12

its modes of procedure, and in the extent and character of

its judgments. It must act judicially in all things, and

cannot then transcend the power conferred by the law. IF

THE ACTION BE FOR LIBEL OR PERSONAL TORT, THE

COURT CANNOT ORDER IN THE CASE A SPECIFIC

PERFORMANCE OF A CONTRACT.”

18. On March 17, 1982 AFTER the Supreme Court

decision of 1980 (180 c 587), a memorandum re “STATES

MOTION FOR ORDER OF TRANSFER OF MONIES ON

DEPOSIT WITH CLERK,” the Hon. Dupont, A. recogniz-

ing there was no proceedings or docket number before

the Superior Court through which unconstitutional funds

could be dispersed, attempted to create a COMMIS-

SIONER OF TRANSPORTATION vs. DIAMOND case and

the clerk was directed to assign a docket number. Jerome

Diamond was a lien-holder as listed on the town of East

Granby land records and referenced in the “BOGUS”

citation at Vol. 59, p. 661-2.

On July 9, 1982 Hon. Dupont, A. RESCINDED her

own order contending there is no necessity to establish a

separate docket number for Commissioner of Transportation

vs. Diamond, an appearance in the instant case has now

been filed by Leonidas D. Simmons.

What is implied by the “instant case” is uncertain,

but what is certain is there was no notice, no service, no

compensation was ever paid or made available to

Leonidas D. Simmons, notwithstanding a claim was

made, consequently the encumberance is still on the land

records. Ex. #8

19. Where the owner, Augustus J. Simmons was

intentionally, prejudically [sic], maliciously - OMITTED —

App. 13

for notice, service, or hearing before a competent tribunal

which would give the property owner an opportunity to

be heard or require the party recording lien to demon-

strate in any way the probability of prevailing on the

underlying action, there is no valid attachment of real

estate. Harwood vs. United States Shipping Board Corp., 300

F 433 (District Court of Connecticut March 24, 1924).

NEVER, in a thousand years, can title to the real

property at issue be acquired without a listing for notice,

service, and, a day in court - OF THE OWNER, and where

federal regulations, 14 CFR § 152.3 (basic acquisition

policies) requires a “satisfactory property interest,” free

of liens or encumberances, and, where federal programs,

projects, and, or assistance are involved as in case at bar

mandating, ON ALL STATES, compliance with the basic

acquisition procedures promulgated pursuant to the Uni-

form Real Property Acquisition Act (P. L. 91-646, 42

U.S.C. §§ 4651-4655, the ANSWER becomes obvious - it

was not an oversight; it was not a mistake; it was not

unfamiliarity with overriding federal law — it was inten-

tional, malicious, unconstitutional, “COERCIVE

ACTION,” prohibited under 49 C.F.R. § 24.102 (h) of

federal regulations.

20. On June 8, 1982 hearing was held before Hon.

Dupont, A., on the motions of Atty. Walter Bass repre-

senting lien-holders “Valente” and “Allaire” requesting

their liens be paid off from the unconstitutional funds

that were with the clerk of the Superior Court, using the

argument that the court had already paid Rogin-Hirtle

esq’s, Jerome Diamond, and taxes to town of East Granby.

Notwithstanding the previous payments alluded to, the

App. 14

payment of compensation to “Valente” and “Allaire” was

DENIED pursuant to the dichotomy that transpired.

The Attorney General’s office directed a challenge to

the Superior Court with lack of subject matter jurisdiction

and jurisdiction of the parties (trans. p. 17-18). Atty.

Walter Bass made a profound statement to the court at

(page 26 trans.) substantiating the lack of jurisdiction by

the court claiming: “First of all, I would object to Mr.

Feingold at this time questioning the jurisdiction of the

court to hear the case. SECONDLY, Your Honor, I forget

which paragraph he referred to in Judge Shapiro’s deci-

sion, there was to be a citation issued so that all people

would come forth and present their claims. I have a right

to inform the court that in the citation, my two clients

were listed under the care of my office. I will state to the

court that I have never been served with any citation nor

has my clients ever been served with any kind of citation

to give us any notice to come in to determine what our

priorities are in this matter.” (transcript 6/7/82) Ex. #9

A decree, judgment, order against a person on whom

no process has been served is not erroneous and void-

able, but upon principles of natural justice, and also

under the due process clause of the 14th Amendment is _

absolutely VOID. Marshall vs. Holmes, 141 U.S. 589, Simon

vs. Southern Railway, 236 U.S. 115.

21. SERVICE with the complaint is necessary under

Connecticut statutes for an action to commence in Con-

necticut. Young vs. Margictta, 136 Conn. 429, 433, 71 A 2d

924, 926 (1950). The procedural statute, C.G.S. § 8-129

imposes a statutory duty for service in accord with C.G.S.

App. 15

§ 52-57. C.G.S. § 8-129 is applicable whether by PUR-

CHASE, LEASE, GIFT, EXCHANGE, or the EXERCISE OF

EMINENT DOMAIN.

CLEARLY, such extrinsic evidence proves beyond

any shadow of doubt that the preceding documentation

of June 1982, makes the Supreme Court of Connecticut

decree of May 1980, a DECREE - VOID ON ITS FACE, a

breach of the federal aiid state Constitution.

FEDERAL OR STATE REGULATIONS

22. Where the first piece of correspondence

addressed to the owner in 1960 made reference to a 1955

agreement between the state and federal agencies and an

examination of such 1955 federal-aid grant agreement

makes very clear that acquisition must be made pursuant

to federal regulations of the “Doolittle Clear Zone” on

plaintiff’s Parcel “C.” Ex. #10 _

23. Where the legislature enacted C.G.S. 13b-50

sec(d) as the state statute that governs in the case at bar;

where the courts have previously in New Haven vs. East

Haven, 35 Conn. Sup. 157 (1977) made clear the airport,

BY FEDERAL REGULATIONS, is authorized to acquire

land to maintain airport approach zones, including clear

and transition zones (14 C.F.R. § 152.85(d) (1977)); where

NO proceedings under federal or state law were insti-

tuted to give the Superior Court jurisdiction, it was grave

unconstitutional error for the state Supreme Court to

transmogrify plaintiff's tort action, that was never

addressed, into a judgment for land confiscation.

App. 16

24. From 47 AM JUR 2d JUDGMENTS §§ 752, 753,

“It is an acknowledged principle of . . . every court in the

world, that not only the decisions, but everything done

under the judicial process of courts not having jurisdic-

tion are ipso facto VOID.” Martin vs. Hunters Lessee, 14

U.S. 1 Wheat, 304; 364, 42 L. Ed. 97 (1816); Chrysler Credit

Corp. vs. Fairfield Chrysler Plymouth Inc., 180 Conn. 223,

229, 429 A 2d 487 (1980); Marshall vs. Clark, 170 Conn. 199,

205, 365 A 2d 1202 (1976).

25. Where the federal agency, Federal Aviation

Administration (F.A.A.), through its agent, Connecticut

Department of Transportation (CDOT) used and occupied

land belonging to, and of value to, plaintiff’s Parcel “C,”

and the United States made no payments to the plaintiff,

or, to the state agency for reasons apparent at first

instance, for the use and occupance, or for any other

purpose, and under current standards is responsible for

ninety percent (90%) of the acquisition cost, and the

unconstitutional funds before the Superior Court clerk

that could not be paid for lack of jurisdiction and were

returned to the state treasury, as was the allocated federal

funds that were returned to their general fund. The

United States Supreme Court has observed whether a

claim that a particular government regulation or action

taken thereon has deprived a claimant of his property

without just compensation is an “essentially ad hoc fac-

tual inquir[y].” Penn Central Transportation Co. vs. New

York City, 438 U.S. 104, 124, 98 S.Ct. 2646, 57 L. Ed. 2d 631

(1977), reh. denied, 439 U.S. 883, 99 S.Ct. 226, 58 L. Ed. 2d

198 (1978) see also Keystone Bituminous Coal Assn. vs.

DeBenedictis, 480 U.S. 470, 473-74, 107 S.Ct. 1232, 94 L. Ed.

App. 17

2d 472 (1987); Pennsylvania Coal Co. vs. Mahon, 260 U.S.

393, 413, 43 S.Ct. 158, 67 L. Ed. 2d 322 (1922).

26. 42 U.S.C. § 4651 of Title III, mandatory on all

states no later than July 1, 1972 provides that, “[iJn order

to encourage and expedite the acquisition of real prop-

erty by agreements with owner, to avoid litigation and

relieve congestion in the courts, to assure consistent treat-

ment for owners in the many federal programs, and to

promote public confidence in federal land acquisition

practices” the agency seeking to acquire real property

shall - 1) make every reasonable effort to acquire prop-

erty by negotiation, 2) appraise the property before the

initiation of negotiations, with the owner present, if he

wishes, at that appraisal, and 3) make an initial WRIT-

TEN offer to the landowner to acquire the property for

- the full appraisal amount.

That there was no valuation or determination, of any

nature, no written statements of compensation submitted

to the court, the owner, the town clerk, as required by

federal regulations and state statutes is UNDISPUTED.

Since the UNITED STATES effectively appropriated the

land in question for an ascertainable period, thereby

interfering with a recognizable interest of plaintiff, the

UNITED STATES is obliged to pay plaintiff the fair rental

value of that property for the period involved. United

States vs. General iotors Corp., 323 U.S. 373, 382 (1945);

Kimball Laundry Co. vs. United States, 338 U.S. 1, 7 (1949);

United States vs. 40.379 Square Feet of Land, 58 F. Supp. 246,

250-52 (D.C. Mass. 1944); Jacobsen vs. Superior Court, 192

Cal. 319, 219 Pac. 986 (1923).

App. 18

27. The loss of plaintiffs Parcel “C” involved in this

case was not merely incidental or indirect consequences

of a taking of other property, rather, it was the direct

product of the actual invasion or taking of the property

involved. United States vs. Causby, 328 U.S. 256, 265-66

(1946). And, “it is the character of the invasion, not the

amount of damage resulting from it, so long as the dam-

age is substantial, that determines the question whether it

is a taking.” United States vs. Cress, 243 U.S. 316 (1917).

PLEADINGS, ISSUES, PRAYERS FOR RELIEF

28. WHERE THERE WAS NO NOTICE, NO SER-

VICE, NO RETURN OF PROCESS TO THE SUPERIOR

COURT, WHERE THERE ARE NO PLEADINGS, NO

HEARINGS BEFORE THE SUPERIOR COURT AND,

WHERE THERE WAS AN ACTUAL ADJUDICATION IN

THE SUPERIOR COURT on June 7, 1982 before Hon.

Dupont, A. of subject matter jurisdiction and jurisdiction

of the parties, a motion to vacate the decree of the

Supreme Court (180 Conn. 587) — is appropriate.

29. It is Hornbook Law that “any judgment should

conform to pleadings, issues, and prayers for relief.”

Kawasaki, Kissen, Kaisha, Ltd. vs. Indomar, Ltd., 173 Conn.

269, 377 A 2d 316; Brill vs. Ulrey, 159 Conn. 371, 269 A 2d

262; Morici vs. Jarvie, 137 Conn. 97, 75 A 2d 47; Shaw vs.

Spelke, 110 Conn. 208, 147 A 675; Steinmetz vs. Steinmetz,

125 Conn. 663, 7 A 2d 915. The Connecticut Supreme

Court had occasion to discuss this principle in New Haven

Sandblast Co. vs. Dreisbach, 104 Conn. 322, 330, 133 A 99.

In that case, the court stated:

App. 19

“A defect in a judgment arising from the fact that the

matter decided was not embraced within the issue has

not, it would seem, received much judicial consideration.

And yet I cannot doubt that, upon general principles,

such a defect must avoid judgment.”

At 133 A 102 (citation omitted), the court also stated,

quoting Blackon Judgments (2d Ed.) Vol. 1 § 215

“Besides jurisdiction of the person of the defendant

and of the general subject-matter of the action, it is neces-

sary to the validity of the judgment that the court should

have had jurisdiction over the precise question which its

judgment assumes to decide, or of the particular remedy

or relief which it assumes to grant * * * and third, the

point decided must be in substance and effect, within the

issue.

30. Finally, the court cited with approval the case of

Lilly vs. Claypool, 53 S.E. 22, 24, 59 W. Va. 130, 133: “There

is no principle better settled than that a judgment or

decree cannot be entered in the absence of pleadings

upon which to found the same.” 133 A at 102 (citations)

(see also Case vs. Bush, 93 Conn. 550, 552, 106 A 822 -

indicating that the variance between the judgment and

the issues raised is jurisdictional.)

31. It is significant that in New Haven Sandblast Co.,

Supra, the court was asked to issue a ruling based upon

stipulated, rather than actual facts. The court expressly

found that the agreement of the parties was not sufficient

to constitute a waiver and could not “confer jurisdiction

upon the trial court.”

App. 20

32. Where federal grant agreements, federal pro-

jects, federal funds are at issue as in case at bar and

subject to the regulations promulgated pursuant to the

mandate of the Uniform Real Property Acquisition Act,

P.L. 91-646 42 U.S.C. §§ 4601-4655 and Title III (42 U.S.C.

4651-4655) is binding on every state in the union, Connect-

icut is no exception. The precise language of 42 U.S.C.

§ 4655 of the act, indicates that a state must be guided,

“to the greatest extent practicable under state law,” by the

§ 4651 procedures to the fullest extent to which it is

legally capable of complying under state law. Beard-

Poulan Inc. vs. Louisiana Dept. of Highways, 497 F 2d 54, 58

(5 cir.), cert. denied, 420 U. S. 990, 95 S.Ct. 1424, 43 L. Ed.

2d 670 (1974); Witman vs. Missouri State Hwy Comm., 406 F.

Supp. 1050, 1060-68 Cw. D. Mo. (1975); City of Columbia,

S.C. vs. Costle, 710 F 2d 1009 (1983).

33. Where the Connecticut legislature, at the request

of the Connecticut Department of Transportation, enacted

C.G.S. 48-17 a, b, c, in 1971 to be in compliance with the

mandates of the federal legislation (Uniform Act) and

48-17 a, b, c, - SUPERSEDES - Special Act #170 (1969),

the fact that private counsel (Rogin-Hirtle) INVALI-

DATED the hearings on damages under the special act,

the 5th and 14th Amendments of the Constitution PRO-

HIBIT such invalidation for fair and just compensation

under 48-17 a, b, c, and the Connecticut Supreme Court

cannot entertain, participate, direct, or order any FINAL

JUDGMENTS without compliance with such mandated

federal legislation under the equal protection clause of

the Constitution.

34. Inasmuch as the federal regulations are applica-

ble, binding, mandatory, where FEDERAL-AID is. assured

“eesti ee ar heer a a, or oak Ss a Boma Sa bs h zits 2s

‘ NT V7 . ¢

erties oa as

App. 21

as in case at bar, the “acquiring agency,” that was clari-

fied with an amended public law 100-17 in 1987 by the

United States Congress, was obligated under 49 C.F.R.

§ 24.102 (b), notice to owner to: As soon as feasible, the

owner shall be notified of the agency’s interest in acquir-

ing the real property and the BASIC PROTECTIONS,

including the agency’s obligation to secure an appraisal,

provided to the owner by law and this part (emphasis

ours).

35. Where the discharged and withdrawn private

: counsel (Rogin-Hirtle) was acting as “the acquiring

4 agency,” partaking in the act to DENY, DEFY the BASIC

aq PROTECTIONS, to totally and completely disregard the

mandatory federal law where federal programs, projects,

and federal funds for airport purposes are at issue, such

malicious and unconstitutional behavior - CANNOT - be

waived by the state Supreme Court.

36. Where adjudication of constitutional infirmity

requires a specific showing of personal injury, one need

look no further than plaintiff’s Exhibit #6 (Dissolution of

_ Attachments), referenced in paragraph’s #13, where, in

lieu of being paid any fair and just compensation, the

. owner is obligated to lien-holders while the Federal Avia-

q tion Administration (FAA.) enjoys a “FREE RIDE” with

the control of the airspace IN, ON, and AROUND plain-

tiff’s Parcel “C.”

Se NeA DH NS

joe “ey ees

Re iat coe cat tates:

REFEREE REPORT

37. Where Referee Shapiro was deputized by Hon.

Dannehy of Superior Court in 1976 to address damages

under Special Act # 170 that never materialized or took

$$$

App. 22

place due to the INVALIDATION by private counsel

(Rogin-Hirtle, esq’s) who “USED” referee in a deceptive

manner to put his name on documents filed on the land

recoids by discharged Rogin-Hirtle, but, never submitted

any reports, decisions, judgments or opinions back to the

Superior Court, further illuminates the IRREGULARITY

by the state Supreme Court acting with NO RECORD

before the Superior Court.

Referee Shapiro did submit a letter to Jason Pearl,

esq. representing the withdrawn Rogin-Hirtle law firm,

dated July 18, 1980 AFTER the decision by the Supreme

Court in May, 1980 wherein he expresses concern over

how to proceed legally, that there were several encum-

berances [sic] with PRIORITIES, and, acknowledging that

he is not equipped to give notice to the various creditors

— “which I believe may be necessary” and referred the matter

back to the Superior Court. Ex. # 11

CLEARLY, such extrinsic evidence of July 1980 makes

the decree of the state Supreme Court of May 1980 (180 c

587) A DECREE - VOID ON ITS FACE.

HEARINGS

38. The opportunity to be heard at a meaningful

time and in a meaningful manner is constitutionally

required to meet currently accepted standards of pro-

cedural due process in the area of property rights.

Kukanskis vs. Griffith, 180 Conn. 501. See e.g. Fuentes vs.

Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L. Ed. 2d 556 (1972),

rehearing denied, 409 U.S. 902, 93 S.Ct. 177, 342 L. Ed. 2d

165 (1972); Lynch vs. Household Fin. Corp., 405 U.S. 538, 92

S.Ct. 1611, 31 L. Ed. 2d 424, rehearing denied, 406 U.S.

App. 23

911, 92 S.Ct. 1611, 31 L. Ed. 2d 822 (1972); Sniadach vs.

Family Fin. Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L. Ed. 2d

349 (1969); Mitchell vs. W.T. Grant Co., 416 U.S. 600, 94

S.Ct. 1895, 40 L. Ed 2d 406 (1974); North Georgia Finishing,

Inc. vs. Di-Chem. Inc., 419 U.S. 601, 95 S.Ct. 719, 42 L. Ed.

2d 751 (1975).

39. THE STATUTES OF CONNECTICUT DO NOT

ALLOW THE ATTACHMENT OF REAL PROPERTY

INDEFINITELY - WITHOUT A HEARING.

40. NO hearings were ever had or permitted, ever,

relative to the deprivations on the land records by the

Rogin-Hirtle “acquiring agency.”

For more than a century the central meaning of pro-

cedural due process has been clear: “Parties whose rights

are to be affected are entitled to be heard; and in order

that they may enjoy that right they must first be noti-

fied,” Baldwin vs. Hale, 1 Wall 223, 233. See Windsor vs.

McVeigh, 93 U.S. 274; Harvey vs. Elliot, 167 U.S. 409;

Grannis vs. Ordean, 234 U.S. 385. It is equally fundamental

that the right to notice and an opportunity to be heard

“must be granted at a meaningful time and in a meaning-

ful manner.” Armstrong vs. Manzo, 380. U.S. 545-552.

In retrospect, how could there be any hearings when

NO MESNE PROCESS was, or could be, initiated???

In retrospect, how could the state Supreme Court,

without any mesne process in the court below, be render-

ing a decision under Simmons vs. Wetherall #163875???

The FINAL ANSWER was given to Robert King, esq.

on January 4, 1978 by Ed Rogin, Sr., esq. when asked

App. 24

about the legality of a proceeding without any determina-

tions of value or damages, Mr. King was told: “HE IS AN

ALCHOLIC [sic] - HE WON’T KNOW THE DIFFER-

ENCE.”

41. Citing Connecticut vs. Doehr, 111 S.Ct. 2105

(1991) at page 2118:

The law concerning attachments has rarely, if ever,

required defendants to suffer an encumbered title until

the case is concluded without any prior opportunity to

show that the attachment was unwarranted. Our cases

have repeatedly emphasized the importance of providing

a prompt post-deprivation hearing at the very least. See

also Matthews vs. Eldridge, 424 U.S. 319, 343, 344, 96 S.Ct.

893, 907, 47 L. Ed 2d 18 (1976).

COMPENSATION

42. The just compensation clause of the Fifth

Amendment made applicable to the states through the

Fourteenth Amendment states in clear and unequivocal

terms: “[NJor shall private property be taken for public

use, without compensation.” The government may

choose formally to condemn the property or otherwise to

continue the offending; in either case the action must be

sustained by proper measures of JUST COMPENSATION.

United States vs. Fuller, 409 U.S. 488, 490-492 (1973);

United States Ex. Rel. TVA vs. Powelson, 319 U.S. 266,

281-285 (1943).

As soon as private property has been taken, whether

through formal condemnation proceedings, occupancy,

physical invasion, or regulation, the landowner has

App. 25

already suffered a constitutional violation, on “the self

executing character of the constitutional provision with

respect to compensation,” United States vs. Clarke, 445

U.S. 253, 257 (1980), quoting J. Sackman, Nichols’ Law of

Eminent Domain § 25.41 (Rev. 3d Ed. 1980) is triggered.

43. The federal agency, F.A.A., has acknowledged to

the owner and in federal court before Hon. Cabranes that

it has not made any awards of compensation to the state

or the owner for its use and occupancy for the past thirty-

six (36) years.

44. The sponsor, Connecticut Department of Trans-

portation, has not made any awards of “legal” compensa-

tion to the owner for the past thirty-six (36) years.

45. Whatever illegal, fraudulent, unconstitutional

funds submitted to the Superior Court in 1978 by with-

drawn and discharged private counsel (Rogin-Hirtle) was

returned by the Superior Court to the state treasurer on

December 23, 1991, there not being any legal proceedings

by which the Superior Court could act. Ex. # 12

46. Itis readily apparent the “irregular” decision of

the state Supreme Court of May 1980 (180 c 587) did not

empower the Superior Court to make any kind of awards

of compensation, and, the Superior Court will not, cannot 5

act until the “irregular” decision is VACATED.

14th AMENDMENT INHIBITIONS

47. Itis established practice for the Supreme Court

to restrain, NOT SANCTION, officers, agents, individual

; App. 26

private attorney’s (Rogin-Hirtle) acting as a self-appoin-

ted eminent domain authority from doing what the Four-

teenth Amendment forbids the state to do. Chicago B. &

O.R. Co. vs. Chicago, 166 U.S. 226; Ex Parte Virginia, 100

U.S. 339, 346, 347; New Haven Sandblast vs. Dreisbach, 104

Conn. 322.

The inhibition contained in the Fourteenth Amend-

ment means that no agency of the state, or of the officers

or agents by whom her powers are exerted, shall deny

any person within her jurisdiction the equal protection of

the laws. Whoever by virtue of his public position under

a state government deprives another of life, liberty or

property, without due process of law, or denies or takes

away the equal protection of the laws, violates the inhibi-

tion; and as he acts in the name of and for the state, and is

clothed with her power, his act is her act. Otherwise, the

inhibition has no meaning, and the state has clothed one

of her agents with power to annul or evade it.

48. As replacement counsel for hearing in damages

under #163875 and 48-17 a, b, c, by hocus-pocus, ipse

dixit, INVALIDATE hearing dates for damages, no sub-

missions by private counsel or Referee Shapiro are made

to Superior Court, with reckless disregard for controlling

federal law, vacate or override all existing court cases and

previous decisions, including Connecticut Supreme Court

decisions, second circuit federal decisions, usurping

power and authority which the court does not have, and,

without initiating any proceedings for land acquisition,

without complying with conditions precedent imposed

by law make the claim - all cases are consolidated -

consolidated into what???

HES SEAL OEE LEME DS POE SENN LE SOE

App. 27

49. In an excerpt from transcript of June 7, 1982 (Ex.

#9 at page 25) Victor Feingold, Asst. Atty. General

addresses the very important compensation issue of

INTEREST.

“In addition, the question of whether interest accrues

on the judgment lien and also it has to be claimed and

made certain, because the legislature in enacting the stat-

ute on execution on judgment altered the rate of interest

which previous to October 1, 1979 was six percent and

effective October 1, 1979, it became eight percent. If statu-

tory interest is due on the judgment lien, that must be

made known. Well, whether the judgment is based on

notes or a higher rate of interest, that survives the judg-

ment, and to be paid until it is fully satisfied - we have

no way of knowing.”

The owner, having refused to tender any deeds, hav-

ing spurned the unconstitutional, fraudulent, verbal offer,

could not be simultaneously claiming interest.

UNCONSCIONABLE IRREGULARITY

50. The turning back to the treasurer of unconstitu-

tional funds on December 23, 1991 by the Superior Court

illuminates the UNCONSCIONABLE IRREGULARITY

engaged in by Rogin-Hirtle, esq’s — and the state Supreme

Court. Ex. # 12

FRAUD - DURESS - DECEIT - INTIMIDATION

51. a) Upon discharge (12/23/77) of the Rogin-Hir-

tle law firm whose assistance was unwanted or undesired

and whose representation was trammeled or burdened by

. App. 28

simultaneous representation of defendants (Conn. Dept.

of Transp.), plaintiff recruited (new) counsel, Robert

King, esq of Nurenburg trial fame who WAS NOT permit-

ted to represent plaintiff on Jan. 4, 1978 was DURESS,

FRAUD, INTIMIDATION at its lowest level.

b) The “combining of cases” was a deceitful maneu-

ver to remove from court records Docket #162923 that

made reference to illegal and unlawful LEASES.

c) The INVALIDATION of hearing dates on DAM-

AGES was an unconstitutional course of conduct for the

deprivation of just compensation under the 5th & 14th

Amendments.

d) Establishing “fair market value” was totally

ignored with no determinations, valuations, appraisals, of

any nature.

e) No WRITTEN statements of compensation was

ever submitted to the owner, the court, the town clerk as

mandated by statute.

f) The vexatious march into the federal court house,

after discharge, of two federal court lawsuits remanded

by 2nd circuit. Ex. #13

g) Nocomputation of interest that must be awarded

pursuant to law. .

h) Post-withdrawal, illegal, unconstitutional

encumbering of real property. Vol. 59 p. 657-668 with

citation at p. 661-2. Ex. #14

i) Acting as “the court” and incorporating such ter-

minology on the land records AFTER discharge and with-

drawal. Vol. 59 p. 658

App. 29

j) Acting as their own sheriff on encumbering real

property — then stuffing Docket #163875 with a purported

service.

k) Submitting spurned unconstitutional funds to

the Superior Court under the false impression it was a

“condemnation case.”

1) Withdrawing funds from unsuspecting Judge

Tamborra, being last on the list of encumberers without

notice or service to more senior lienholders.

m) Deliberate concealment of illegal, unlawful,

fraudulent LEASES entered into of plaintiff’s Parcel “C”

by F.A.A. and Conn. Dept. of Transportation. Ex. #15

n) Intentional, deliberate, pre-planned, “BACKDAT-

ING” to avoid compliance with federal law and admitting

same on the record of transcript (12/13/1977). No deeds

on 4/19/78. Ex. # 16

0) Intentionally, knowingly violating the laws of

due process — even after such fact called to their attention

by Robert King, esq on January 4, 1978.

PRAYER FOR RELIEF

Where it is part of the judicial function to determine

JUST COMPENSATION that must be made at the Supe-

rior Court level with the Supreme Court acting in review

of final judgments, if necessary.

The IRREGULAR decision of the state Supreme

Court, acting as an unconscionable roadblock must be

vacated and plaintiff prays the Superior Court be directed

App. 30

to conclude, pursuant to appropriate statutes and regula-

tions, the Federal-Aid Grant Agreement #9-06-009-5708 of

1955.

Respectfully submitted,

/s/ Augustus J. Simmons

Augustus J. Simmons, Plaintiff

P.O. Box #1

Windsor, CT 06095

(860) 569-6714

CERTIFICATION

Plaintiff/owner, Augustus J. Simmons hereby certi-

fies a copy of this MOTION TO VACATE, and EXHIBITS,

was mailed, postage prepaid this first day of May, 2000 to

all parties listed.

Copies to:

James F. Sullivan, Commissioner

Connecticut Department of Transportation

2800 Berlin Turnpike, P.O. Box 317546

Newington, CT 06131-7546

Jane F. Garvey, Administrator

Federal Aviation Administration

800 Independence Ave. S.W.

Washington D.C. 20591

Richard Blumenthal, Attorney General

55 Elm Street

Hartford, CT 06106

Michael DiDonato, Chief Clerk

Superior Court

85 Washington Street

Hartford, CT 06106

App. 31

Rogin, Nassau, Caplan, Lassman & Hirtle

1 City Place

Hartford, CT 06103

Robert S. Bartanowicz, Regional Director

12 New England Executive Park

Burlington, MA 01803

John Malone

State Attorney’s Office

State of Connecticut Court House

Enfield, CT 06082

/s/ Augustus J. Simmons

Augustus J. Simmons

P.O. Box #1

Windsor, CT 06095

(860) 569-6714

APPENDIX

EXHIBIT 1

12/23/77

Dear Mr. Rogin,

I am a totally dissatisfied individual with the “GOOD

DEAL” that your firm has arranged with the Dept. of

Trans. Concerning my property at Bradley Field.

Because everyone is now in an awkward position

upon your firm’s insistence of accepting a proposal with-

out the benefit of a Market Research Study by the John

Rowlson Firm I am asking the Rogin Firm to withdraw

immediately so I can obtain other counsel.

App. 32

On my visit to your office on Thurs. Dec. 22nd, I told

you I wanted to protect my rights against your recom-

mendations. I also compiled some data wherein I showed

you and again outline a breakdown of Parcel “C”.

Asking me to yield all of Parcel “A” and all damages

for absolutely nothing is not representing my best inter-

ests.

We'll appreciate an immediate withdrawal.

O. Simmons

Parcel “C” May 1975 382,000

Rental May “76” to

May “78” @ 20,000 60,000

Out of Pocket Expense 82,00

524,000

EXHIBIT 2

; 4/12/78

Atty Ned Rogin

Received your letter this date which was dated

4/6/78 and mailed 4/11/78. Must inform you there will

be no closing on 4/19/78.

This letter is a request the (Rogin-Lassman, Hirtle)

firm withdraw from all cases involving Augustus J. Sim-

mons.

Augustus J Simmons

Copies Justice Louis Shapiro

Acct Aty General Fred Neusner

App. 33

EXHIBIT 3 _

STATE OF _ + SUPERIOR COURT

CONNECTICUT HARTFORD COUNTY

VS.

AUGUSTUS J. SIMMONS

NO. 199230-9

AUGUSTUS J. SIMMONS

VS.

SAMUEL KANELL, ET

AL

NO. 140965

STATE OF

CONNECTICUT

VS.

ANASTASIA SIMMONS

AUGUSTUS J. SIMMONS

and CHARLES SIMMONS

NO. 162923

AUGUSTUS J. SIMMONS

VS.

FRANK C. PARIZEK, ET

AL

NO. 163875 :

AUGUSTUS J. SIMMONS

VS.

HORACE B. .

WETHERELL, ET AL

APRIL 19, 1978

App. 34

The undersigned respectfully move for the permis-

sion of the Court to withdraw as counsel for Augustus J.

Simmons in the above-captioned matters.

/s/ Robert L. Hirtle, Jr.

ROGIN, NASSAU, CAPLAN,

LASSMAN AND HIRTLE-

/s/ David B. Salzman

DAVID B. SALZMAN, ESQUIRE

/s/ Stephen Silverman

STEPHEN SILVERMAN,

ESQUIRE

ORDER

The foregoing motion is granted/denied.

BY THE COURT

Clerk

This is to certify that the foregoing has been mailed this

day to counsel of record and to the plaintiff.

/s/ Robert L. Hirtle, Jr.

Robert L. Hirtle, Jr.

App. 35

EXHIBIT 4

DAVID B. SALZMAN, _:_ SUPERIOR COURT

ET AL , * HARTFORD COUNTY

VS. APRIL 20, 1978

AUGUSTUS J.

SIMMONS

ORDER GRANTING PRE-JUDGMENT REMEDY

(WITHOUT HEARING)

The application and Affidavit of Plaintiff(s) for Pre-

judgment Remedy pursuant to C.G.S. Section 52-278a et

seq. as amended, having been presented to the Court and

there being probable cause to sustain the validity of the

Claim of the Plaintiff(s), it is hereby ORDERED that the

Plaintiff(s) may

(a) attach to the sum of $105,000.00 the real estate stand-

ing in the name of the Defendant(s) Augustus J. Sim-

mons XXXXXXX as described in Schedule a attached

hereto.

Dated at Hartford, CT this 20th day of April 1978

Illegible

JUDGE

App. 36

[LOGO] Cleaveland Legal Blank Service, Inc.

Hartford, Connecticut

EX PARTE

P.J.R. NO.

APPLICATION FOR PRE-JUDGMENT REMEDY

TO THE SUPERIOR COURT TO BE

HELD IN HARTFORD, IN AND FOR

THE COUNTY OF

The undersigned represents:

1. That DAVID B. SALZMAN, STEPHEN SILVER-

MAN and ROGIN, NASSAU, CAPLAN, LASSMAN &

HIRTLE is about to commence an action against

AUGUSTUS J. SIMMONS of 580 Park Avenue, Windsor,

CT pursuant to the attached proposed unsigned Writ,

Summons, Complaint and Affidavit.

2. That there is probable cause that a judgment will

be rendered in such matter in favor of the applicant and

to secure such judgment the applicant seeks an order

from this court directing that the following prejudgment

remedy be issued to secure the sum of $105,000.00

a. To attach the following described real property

of the Defendant(s) to Wit:

See attached description (Schedule A)

b. To garnishee __, as he is the agent, trustee,

debtor of said Defendant and has concealed in his

hands the goods, effects and estate of said Defendant

and is indebted to him.

c. To replevy property described in Exhibit

d. To enjoin the said

App. 37

his/her/their agents, servants or employees from

selling, transferring or encumbering any interest in

and to the above-described real property pending

further order of this court.

PLAINTIFFS

By /s/ Jason E. Pearl

Jason E. Pearl Attorney

AFFIDAVIT IN SUPPORT OF P.J.R. APPLICATION

I, the undersigned, do make affidavit and say that there is

probable cause to sustain the validity of the Plaintiff's

claim and

1. That the prejudgment remedy requested is for an

attachment of real property; or

2. That there is reasonable likelihood that the defendant:

Qa.

Neither resides in nor maintains an office or

place of business in this state and is not other-

wise subject to jurisdiction over his person by

the Court;

Has hidden or will hide himself so that process

cannot be served on him;

Is about to remove himself or his property

from this state;

. Is about to fraudulently dipose [sic] of or has

fraudulently disposed of any of his property

with intent to hinder, delay or defraud his

creditors;

Has fraudulently hidden or withheld money,

‘property or effects which should be liable to

the satisfaction of his debts;

App. 38

Qf. Has stated he is insolvent or has stated he is

unable to pay his debts as they mature.

I base this upon the following Statement of Facts:

Affiant is an attorney at law who rendered legal ser-

vices together with the other plaintiffs for the defen-

dant totaling $104,505.00. Defendant has not paid the

same, despite demand.

/s/ David Salzman

Plaintiff-Competent Affiant

Subscribed and sworn to before me this April, day of 20th

1977.

/s/ Robert Hirtle

Commissioner of The

Superior Court -

App. 39

EXHIBIT 5

Law Offices

Jason E. Pearl

19 SOUTH HIGH STREET

POST OFFICE BOX 183

New Britain, Connecticut 06050

Jason E. Pearl Telephone

Kenneth J. Spayer (203) 229-1603

August 30, 1979

The Honorable John Daly

Superior Court

95 Washington Street

Hartford, CT

Re: David Salzman

Vs: Augustus Simmons

Docket No. 218559 8

Dear Judge:

First of all, welcome back from vacation.

While you were away on August 13 I received a

telephone call from one of the assistant clerks advising

me that if I wished to reargue my Motion For Turnover

dated July 25, 1979, I would have to claim it for the Short

Calendar. I was rather taken back by this announcement

inasmuch as my file indicates that you granted the

motion in open court on July 27, 1979. I recall you speak-

ing to me briefly subsequent to that time indicating that

you were going to meet with Mr. Abraham with respect

to the order, but you did not indicate to me that you had

vacated your prior decision. I would assume that for me

to be put into the position of having to “reargue” your

App. 40

prior decision would have to be revoked. Until that hap-

pens, I really do not know what there is for me to argue.

I would be most appreciative of your guidance in this

matter.

Yours very truly,

/s/ Jason E. Pearl

Jason E. Pearl, Esq.

JEP/ck

1888

Hearing set up

for 9/12/79 at 2:00 p.m.

Linda:

Based on SHELTON v WOLTHAULEN, 80C 599 (fur-

nished by Lucian) I would have no authority to grant this

motion.

Will you kindly notify Jason Pearl regarding this & if

he wishes to argue the matter put it down.

Thanks

App. 41

: EXHIBIT 6

December 1, 1996

Town Clerk

Town Hall

9 Center Street

East Granby, CT 06026

Dear Clerk,

The subject matter of this letter pertains to: DISSO-

LUTION OF ATTACHMENTS PURSUANT TO C.G.S.

§ 52-327.

1. Plaintiff-owner-interested person Augustus J.

Simmons requests the following listed encumberances

[sic] be endorsed on the record of such attachment with

the words “DISCHARGED BY OPERATION OF LAW”

pursuant to Connecticut General Statute § 52-327.

2. The attachments on the public land records under

the caption of Augustus J]. Simmons v Horace B. Wetherall,

CV-70-163875 by private counsel, without any eminent

domain proceedings in existence-or-initiated for attach-

ment purposes, without any notice or service of process

on interested parties, without any return of service to the

court of competent jurisdiction (Superior Court) prior to

or after the attachment, and, without appraisals to estab-

lish fair-market value that are mandatory, including a

transfer of title under plaintiff’s private tort action,

Docket #163875 are:

Vol. 59, p. 657-668

Vol. 59, p. 654-656

Vol. 59, p. 623-626

Map Book 17, page 853

Map Book 17, page 854

App. 42

3. Included in Vol. 59, p. 657-668 is a citation at page

661-662 of names of parties and institutions to be served

with notice with a return day of the first Tuesday of July,

1978.

4. Vol. 59, p. 661-662 DOES NOT list Augustus J.

Simmons for notice and service, however, he is still an

“interested person,” — he just happens to be the owner.

5. That there was NO officer’s service on any par-

ties, NO written return of his (officer’s) precept to the

court of competent jurisdiction (Superior Court) and NO

compensation paid is evident in a letter from Atty. Tom

Byrne, a copy being submitted as an exhibit showing an

encumberance [sic] at Vol. 55, page 731 (1974) of East

Granby land records (also listed in the citation at Vol. 59,

p- 661-2) that is still outstanding.

The listed attachments in item #2 were recorded on

June 2nd and 5th of 1978 which is a much longer period

than FIFTEEN YEARS from date of attachment.

6. The interested person (owner) submits a sworn

testimonial from Atty. Walter Bass before Hon. Dupont,

A. on June 7, 1982 representing “Valente’s” and

“Allaire’s” with outstanding liens at Vol. 58, p. 95; Vol. 58,

p. 221; 59/253; 59/263; 59/266 (trans. p. 26) that states:

“Your Honor, in Mr. Feingold’s recitation that he

gave Your Honor this morning, I forget which paragraph

he referred to in Judge Shapiro’s decision, there was to be

a citation issued so that all people would come forth and

present their claims. I have a right to inform the court

that in the citation, my two clients were listed under the

care of my office. I will state to the court that I have never

App. 43

been served any citation nor has my clients [sic] even

been served with any kind of a citation to give us any

notice to come in to determine what our priorities are in

this matter.” .

The above citations of Valente and Allaire are (also

listed in the citation at Vol. 59, p. 661-2).

7. The caption Simmons v Wetherall, #163875, a tort

action AGAINST the state, a result of Special Act #170 of

the 1969 legislature, CANNOT be TRANSMOGRIFIED

into an eminent domain action by superimposing the

Connecticut Department of Transportation as plaintiff

(Vol. 59, p. 662), by private counsel, for land acquisition

for federal navigational instrumentation projects, per fed-

eral grant agreement 9-06-009-5708 (1955), that must be

acquired pursuant to federal regulations, constituting a

fraudulent encumberance [sic].

8. Under the law of Connecticut, any lien created by

attachment continues for 60 days after judgment and no

longer. If no execution is taken out before that time, the

lien perishes. Sanford v Pond, (1871) 37 Conn. 588.

9. Where it is unambiguously clear there was no

notice, no service, or, return to the court of competent

jurisdiction, no judgment file or record of any kind before

the court of competent jurisdiction under Docket

#163875, and, the listed return day was the first Tuesday

of July, 1978 (Vol. 59, p. 661) and the attachments were

submitted on June 2nd and 5th of 1978, some of which

contained a court stamp of the Court Clerk (Thomas H.

Abraham) of Superior Court to give the appearance of

authenticity to the public is FRAUD upon the court, the

App. 44

public, and the “interested persons” named in the cita-

tion.

Court records show the succeeding Chief Clerk,

(Lucian Jachomovitz) informing Hon. Judge John Daly in

August, 1979 there were NO proceedings before the Supe-

rior Court, consequently the Superior Court was without

jurisdiction to act, referencing the citation of Shelton v

Wolthausen, 80 c 599.

10. Court records show a motion filed with Judge

Aronson by plaintiff-owner-interested person (Simmons)

that jurisdiction could not be created “sua sponte” in

December, 1991 relative to the notice from the court to

Atty. Tom Byrne, and others, and as a result of said

motion the “slush fund” monies being held under the

direction of the court were ABANDONED.

11. Unquestionably, there is [sic] years, not months

or days beyond the statutory fifteen (15) years referenced

and “DISCHARGED BY OPERATION OF LAW” is the

purpose and request of this letter.

Respectfully submitted,

/s/ Augustus J. Simmons

Augustus J. Simmons

P.O. Box #1

Windsor, CT 06095

(860) 569-6714

cc: Exhibits

App. 45

§ 52-327 CIVIL ACTIONS

Title 52

§ 52-327. Duration and release of attachment liens on

real estate

No attachment of real estate shail continue in force as

a lien for a longer period than fifteen years after the date

thereof unless within said period the action in which such

attachment was made has been prosecuted to effect and a

judgment lien filed according to law. All attachments of

real estate which have expired as a lien by the provisions

of this section shall be deemed dissolved and the real

estate shall be free from any lien or encumbrance by

reason of the same and the town clerk of the town in

which such real estate is situated shall, upon the request

of any person interested, endorse on the record of such

attachment the words “discharged by operation of law.”

(1949 Rev., § 8026.)

CERTIFICATION

Plaintiff-owner-interested person hereby certifies that a

copy of this Request of Dissolution Pursuant to C.G.S.

§ 52-327 will be — hand delivered to:

Chief Clerk ,

Superior Court (to be put in Simmons v

95 Washington St. Wetherall, #163875 file)

Hartford, CT 06106

App. 46

Will be mailed, postage prepaid, first class to:

J. William Burns, Commissioner

Connecticut Department of Transportation

2800 Berlin Turnpike, P.O. Box 317546

Newington, CT 06131-7546

Atty. Tom Byrne

2-E Farmington Commons

790 Farmington Ave.

Farmington, CT 06032

Otto P. Witt, Esq. & Associates

185 Silas Deane Highway

Wethersfield, CT 06109

Robert S. Bartanowicz, Regional Director

Federal Aviation Administration

12 New England Executive Park ;

Burlington, MA 01803

/s/ Augustus J. Simmons

Augustus J. Simmons

P.O. Box #1

Windsor, CT 06095

(860) 569-6714

December 1, 1996

Chief Clerk

Superior Court

95 Washington St.

Hartford, CT 06106

Dear Michael,

The attached “Dissolution of Attachments Pursuant to

C.G.S. § 52-327” filed under the caption of Simmons v

App. 47

Wetherall, #163875 is being submitted to be made part of

the #163875 “damages” file._

Respectfully submitted,

/s/ Augustus J. Simmons

Augustus J. Simmons

P.O. Box #1

Windsor, CT 06095

(860) 569-6714

LAW OFFICES

BYRNE & BYRNE

2-E FARMINGTON COMMONS

790 FARMINGTON AVENUE

FARMINGTON, CONNECTICUT 06032

THOMAS P. BYRNE TELEPHONE

STEVEN E. BYRNE (203) 677-7355

—

a

25 November 1996

Augustus J. Simmons

P.O. Box 1

Windsor, CT 06095

Dear Ozzie,

The only activity of which I am aware with respect to a

mortgage dated July 3, 1974 as recorded in Volume 55

Page 731 of the East Granby Land Records is notice of a

hearing to be held before Arnold Aronson, Judge of the

Superior Court, on December 23, 1991 to determine the

disposition of funds.

Enclosed herewith is a copy of the notice which I received

from the court as well as a copy of a letter to me dated

App. 48

December 19, 1991 from Attorney Walter E. Bass, Jy. I did

not attend the hearing of December 23, 1991.

No payments have been received by me on this mortgage.

* Very truly yours,

/s/ Thomas P. Byrne

Thomas P. Byrne

AUGUSTUS J SIMMONS __ VS.

WETHERALL,DEP COMR CV-70-0163875-S

ALL COUNSEL AND PRO SE PARTIES ARE ORDERED

TO APPEAR BEFORE THE HONORABLE ARNOLD

ARONSON ON MONDAY, DECEMBER 23, 1991 AT 9 30

A.M. IN ROOM 111 AT HARTFORD SUPERIOR COURT,

95 WASHINGTON. ST., HARTFORD, CT. A MOTION BY

THE COURT TO DETERMINE THE DISPOSITION OF

FUNDS WILL BE HEARD.

A COPY OF SAID MOTION WILL BE SENT TO ALL

COUNSEL AND PRO SE PARTIESUNDER [sic] SEPA-

RATE COVER. .

KAREN PICKER

ASSISTANT CLERK

WALTER E BASS JR

P. O. BOX 289

App. 49

SUPERIOR COURT

95 WASHINGTON STREET

P.O. DRAWER D, STATION A

- HARTFORD, CONNECTICUT 06106

EAST WINDSOR CT 06088

DATED DEC 05, 1991

Law Offices of

Walter E. Bass, Jr.

P.O. Box 289

Warehouse Point, Conn. 06088

Tel. 623-8688 Juris Number 02450

December 19, 1991

Attorney Thomas Byrnes

790 Farmington Avenue

Farmington, CT 06032

RE: Augustus J. Simmons

vs.

Horace Wetherell, et al

Dear Attorney Byrnes:

Please be informed that my office represents several cred-

itors of Mr. Augustus J. Simmons. Please be informed that

Judge Arnold Arsonsor is holding a hearing on Decem-

ber 23, 1991 at 9:30 a.m. in Courtroom 111 at Hartford

Superior Court. Enclosed please find a copy of a Notice

which my office has received concerning this hearing. I

would like to inform you, that I do believe that you have

App. 50

an interest in this case. I request that you be present at

this hearing. If you have any questions, please feel free to

contact my office.

Respectfully,

/s/ Walter E. Fass, Jr.

Walter E. Fass, Jr.

WEBJr./mf

RECEIVED DECEMBER 2, 1996 AT 8:30 A.M.

BY /s/ Laura B. LaFond

ASS’T. TOWN CLERK

Received 12/2, 1976

at 8:30 A.M.

Recorded in EAST GRANBY LAND RECORDS

Volume 112 Page 001

By /s/ Laura B. LaFond

Asst. Town Clerk .

Augustus J. Simmons

P.O. Box 1

Windsor, CT 06095

App. 51

EXHIBIT 7

STATE OF CONNECTICUT

VS.

AUGUSTUS J. SIMMONS

NO. 20 21 21 - 8

(CONSOLIDATED APPEAL)

HARTFORD COUNTY

BRIEF OF DEFENDANT - APPELLANT

OCTOBER TERM

To be argued by:

Ronald E. Cassidento, Esq.

App. 52

TABLE OF CONTENTS

PAGE

Citations ........ A cccvccccceccscascoaceccccncha i, ii, iii

ATBUMONE 2... ccccccccccccccccccccccccessececs 1 and 14

Did the trial court err in refusing appellant's

Motion to Reopen the judgment in view of the

mandate of Connecticut General Statutes

Was there a conflict of interest, requiring vacation

of the trial court judgment, when a former

Assistant Attorney General for the Department

of Transportation (1965-1971) agreed to repre-

sent the appellant in negotiations with the pre-

sent Attorney General for the Department of

Transportation? .......cccccccccccccccccccccccecees

Statement of Facts

App. 53

EXHIBIT 7

SUPREME COURT

OF THE

State of Connecticut

HARTFORD COUNTY, OCTOBER TERM, 1978

9200

AUGUSTUS J. SIMMONS

vs.

HORACE B. WETHERELL, ET AL

CONSOLIDATED APPEAL

BRIEF OF DEFENDANTS-APPELLAD TS

To Be Argued By:

RONALD E. CASSIDENTO, ESQ.

App. 54

NO. 163875

AUGUSTUS J. SIMMONS : SUPERIOR COURT

VS. ‘ JUDICIAL DISTRICT

wORAce & ‘ HARTFORD-NEW

‘ BRITAIN at HARTFORD

MARCH 17, 1982

WETHERALL, ET AL.

MEMORANDUM RE STATE’S

MOTION FOR ORDER OF TRANSFER OF

MONIES ON DEPOSIT WITH CLERK

(Filed Mar. 17, 1982)

The clerk of the Superior Court currently has posses-

sion and custody of $322,402.98, on which no interest has

been earned since July, 1981. The Assistant Attorney Gen-

eral was asked by the Federal District Court of Connecti-

cut on February 4, 1982, to apply to this court for an order

that the clerk transfer the sum to an interest bearing

account. The Attorney General seeks to have the sum, to

the extent that it is capable of being divided into denomi-

nants of $10,000, invested in Treasury Bills of the United

States for a time period not exceeding three months, with

excess monies to be invested in an interest bearing state-

ment savings account. The Attorney General seeks, fur-

ther, that the accounts be held in the name of the clerk of

the court and that the clerk be authorized and directed to

continue the same investment program from time to time

as a “roll over” until subsequent order of the court. The

clerk no longer wishes to be the stakeholder under the

present condition. The plaintiff, Augustus Simmons, has

no objection to the defendant, Attorney General’s motion,

but does not wish the money to be deposited at Connecti-

cut Bank & Trust, the bank named by the state on its

App. 55

proposed order. The plaintiff's wife who has filed a lis

" pendens, arising out of her suit for a dissolution of her

marriage to the plaintiff, on the property in dispute, seeks

to intervene in this case and seeks by motion to have the

sum of $40,000 disbursed to her from the funds being

held by the clerk. The plaintiff has no objection to her

intervention or to the disbursement. The state objects to

the intervention of plaintiff's wife but has no objection to

the placement of $42,402.98 in an interest bearing state-

ment savings account.

The plaintiff’s wife previously filed an appearance in

Commissioner of Transportation v. Diamond, et al. (a related

case) for which no docket number was ever ascribed and

in which she was named as a party.

Without objection, counsel for plaintiff's wife partici-

pated in the hearing held on March 1, 1978 on the state’s

motion which is the subject of this memorandum.

The motion of Leonidas D. Simmons to intervene in

this case is denied. The clerk is directed to assign a

docket number to Commissioner of Transportation v. Dia-

mond, et al. which was returnable in July, 1978, and to

properly file her appearance in that case, as well as all

pleadings which may belong in that file.

The following ORDER is entered:

1. The clerk of the Superior Court is directed

and authorized to transfer $280,000 to Hart-

ford National Bank & Trust Co., Hartford,

Conn., c/o Ray Scharfenberger, for invest-

ment only in Treasury Bills of the United

States for a time period not exceeding three

months, and to continue said investment

App. 56

program from time to time in the nature of a

“roll over” account until subsequent order

of this court.

The clerk of the Superior Court is directed

and authorized to transfer $42,402.98 to

Hartford National Bank, Hartford, Conn.,

c/o Ray Scharfenberger, for investment in

an interest bearing statement savings

account, the sum of at least $40,000 to

remain on deposit until such time as it has

been determined that said sum should be

disbursed to Leonidas D. Simmons.

Since investment in Treasury Bills requires a

minimal investment of $10,000, but allows —

investment thereafter in increments of

$5,000, and since such investments, in effect,

provide for the pre-payment of the interest

thereon, monies in excess of a face value of

$280,000 will be obtaimed. Such monies are

also to be invested in three month United

States Treasury Bills to the extent possible,

and to the extent of amy excess which does

not equal $5,000 are to be placed in the

interest bearing statement account to remain

on deposit until such time as such monies

together with $2,402.98, equal $5,000, at

which time they shall be placed for invest-

ment in three month Treasury Bills of the

United States.

No withdrawals or disbursements are to be

made from said accownts except upon the

further express order of this court.

App. 57

5. Title to said accounts shall be in the name of

the clerk of the Superior Court.

/s/ Dupont, J.

Dupont, J.

EXHIBIT 8

NO. 202121

STATE OF SUPERIOR COURT

CONNECTICUT

VS.

AUGUSTUS J. SIMMONS

NO. 199230

AUGUSTUS J. SIMMONS

VS.

SAMUEL KANELL,

ET AL.

NO. 140965

STATE OF : JUDICIAL DISTRICT OF

CONNECTICUT HARTFORD - NEW

VS. BRITAIN AT HARTFORD

ANASTASIA SIMMONS,

AUGUSTUS J. SIMMONS

AND CHARLES

SIMMONS

NO. 162923

AUGUSTUS J. SIMMONS

VS.

FRANK C. PARIZEK,

ET AL.

App. 58

NO. 163875

AUGUSTUS J. SIMMONS _ : JULY 7, 1982

VS.

HORACE B.

WETHERELL, ET AL.

MEMORANDUM OF DECISION

RE:

MOTIONS FOR DISBURSEMENT OF FUNDS BY CLERK

TO PATSY VALENTE AND LEONARD ALLAIRE

A Supplemental Judgment dated June 2, 1978 lists

Leonard Allaire and Patsy Valente as holders of a “Judg-

ment” and attachment, respectively. Both claimants were -_

cited to appear before the Court with proof of the amount

and validity of their claims. However, on October 15,

1981, the plaintiff, Augustus Simmons filed an action in

Federal District Court, seeking as relief, among other

things, that a Connecticut Supreme Court decision

(reported in 180 Conn. 587 (1980)) upholding the validity

of a Stipulation and Judgment pursuant thereto, be

vacated. Prior to the filing of the federal action, some of

the lienors and encumbrancers were paid pursuant to the

Supplemental Judgment. The instant motions were filed

on May 25, 1982.

The right to disbursement from the funds held by the

Clerk of the Court has been placed in question by the

federal litigation. Until such time as it is resolved, the

status quo must be preserved.

Motions to disburse denied.

/s/ Dupont, J.

_ Dupont

App. 59

EXHIBIT 9

SUPERIOR COURT

JUDICIAL DISTRICT OF HARTFORD/NEW BRITAIN

AT HARTFORD

AGUSTUS J. SIMMONS,

Plaintiff, * NO. 163875

vs. -June 7, 1982

HORACE B.

WETHERALL,

Defendant.

Before:

The Honorable ANTOINETTE L. DUPONT, Judge

APPEARANCES:

For the Plaintiff:

AUGUSTUS J. SIMMONS, Pro Se

For Allaire and Valente:

WALTER E. BASS, JR., ESQ.

VICTOR FEINGOLD, ESQ.

Assistant Attorney General

Harold J. Moan, Sr.

Court Reporter

[2] THE COURT: I have in front of me various

motions. Well, one is a motion for disbursement of funds

by the clerk. All of these motions relate to the case of

sete cet niall nit saad etl cn is

App. 60

Augustus Simmons versus Howard Wetherall, Et Al, Case

Number 163875.

The first motion for disbursement of funds by the

clerk is on behalf of Patsy Valente. The second motion is

on behalf of Leonard Allaire.

Now, I also have an appearance from Walter Bass,

who is present today, and Augustus Simmons who is also

present as well as Victor Feingold, who is the Assistant

Attorney General. I have affidavits of Augustus Sim-

mons, which are part of the file.

MR. BASS: Your Honor, I have a very short

request of the Court. I represent both Mr. Allaire and Mr.

Valente. They are relations to Mr. Simmons and -

THE COURT: I have an appearance for Mr. Val-

ente.

MR. BASS: There should be two, but I will sub-

mit another appearance for him.

THE COURT: Maybe the clerk has it. I don’t.

MR. BASS: Their relationship to Mr. Simmons is

that they are former brother and sister- [3] in-laws to Mr.

Simmons. The money that is being claimed this morning,

your Honor, was money that the Valentes and Allaires

have lent Mr. Simmons over a period of time to finance or

help finance his legal battles.

Mr. Simmons was never able to pay on any of these

notes that he signed with the Valentes or Allaires, and

subsequently they came to my office and we started a

App. 61

collection suit against Mr. Simmons and received judg-

ment and recorded this on the land records going back to

1977-1978.

THE COURT: That was brought in this court?

MR. BASS: Yes, your Honor. Well, two suits.

They were both brought within the Hartford County

Superior Court.

THE COURT: All right. Both of them went to

judgment?

MR. BASS: Yes, and both are recorded on the

land records.

THE COURT: There is a judgment lien on the

land records?

MR. BASS: Yes, your Honor. Well, one judg-

ment lien in 1977 and one in 1978.

\

\

THE COURT: Judgments were in the amount

[4] of $3,000?

MR. BASS: No, your Honor. The figure of 3,000

for Mr. Valente and 13,000 for Mr. Allaire includes all

interest to date, actually June 24th, 1982, your Honor. It is

a total figure and we didn’t break it down. We gave a

lump sum figure by computation.

THE COURT: That includes interest up to June

24th?

MR. BASS: Yes.

THE COURT: January 4th, ‘78?

MR. BASS: June 24, 1982, right to this moment.

’ App. 62

THE COURT: But from January 4th, ’78 to date?

=

“MIR. BASS: Yes.

It is our contention that when a state agency con-

demns anybody’s property, that they do deposit money to

the clerk, and there has been money deposited to the

clerk, according to Section 48-11 of the General Statutes.

This money is Mr. Simmons’ and is being held through

the clerk of the court to make sure that he has the funds

for the property that was taken. During the history of this

action and since it was deposited with the clerk, there

have been several withdrawals, as your Honor may be

familiar with. Well, approximately $98,000 [5] was with-

drawn from this account from the law firm of Nassau,

Rogin & Hirtle, and I forgot the complete name of all the

lawyers in there, but for legal representation to Mr. Sim-

mons. There was money set aside for Mr. Simmons’ ex-

wife, your Honor, and I believe that amount was approxi-

mately forty-some-odd thousand doliars. The Texas due

the Town of East Granby were also escrowed out of this

fund and distributed to the town, as well as money to Mr.

Diamond.

In this-situation, your Honor, I believe that with Mr.

Simmons’ consent to have this money withdrawn from

his account to pay these people, is a logical consistent act

that has been followed through in this file already, your

Honor, on three other occasions. We do have Mr. Sim-

mons’ consent, and I would ask your Honor, if you deter-

mine it so, to withdraw the money to allow us to make

this application, that is, to withdraw the money. We ask

your Honor to grant it.

App. 63

THE COURT: Would you like to say anything,

Mr. Simmons?

MR. SIMMONS: Yes, your Honor. I would ask

that somewhere, at some point, that Mr. Bass would

submit to me, to the Court, a specific amount or segregate

the amounts of interest versus principal, and the question

being a logical one, because somewhere the [6] Internal

Revenue will want to catch up with me and say how

much was principal and how much was interest. I do feel

that I told Mr. Bass, I don’t care what the numbers are or

how he arrived at them, but I de feel from my point of

view and for my protection, I must have a breakdown.

Well, however, he arrived at it, I don’t care. I am not

objecting to the total numbers, but what I am asking for is

a separation.

MR. BASS: If I may, your Honor, if the motion

is granted, we will provide Mr. Simmons with a complete

breakdown.

MR. SIMMONS: He mentioned $198,000, and as

your Honor knows, there was 113,000 paid out to the

legal firm, just what the records will show. Well, $15,000

additional, which is the figure that was granted. As long

as he had mentioned that, I am still waiting on the courts.

I know you are stuck with a tacky situation, but I do feel

that considerable time has elapsed, and I think that your

Honor should bring the gavel down.

THE COURT: Many of the motions I have heard

are really interrelated and they address the same kind of

question. Hopefully, this will be the last motion and now

I can decide the many motions which I have heard so far.

App. 64

MR. SIMMONS: Yes. Mr. Bass also mentioned

[7] $40,000. Well, I can’t let the opportunity go without

commenting that I had an opportunity to talk with Mr.

Shearenberger, who is with the Hartford National, and it

is really a travesty to leave this amount of money in at

51/2 percent in a passbook account.

THE COURT: The $40,000?

MR. SIMMONS: Yes.

THE COURT: You agreed to that.

MR. SIMMONS: I agreed, but I still think - I

mean, it is sitting there and losing an awful lot. I am

quoting Mr. Shearenberger, that it could be invested on a

daily basis in a market fund and getting more than twice

the interest at 5'/2 percent. Now, whether the adversary is

losing it or I am losing it, there are a lot of dollars being

lost here unnecessarily. Your Honor, again I suppose I got

to choose my words on how I address this problem, but it

was mentioned that it is just a travesty that this is sitting

there at 51/2 percent.

He also mentioned taxes and Mr. Diamond. Well,

taxes is another problem down the line which has to be

resolved. Your Honor, this is exactly one of the reasons

why this ball of wax is unsettled. As long as I am alive,

and as long as I got red blood corpuscles through my

veins, I am never in my lifetime going to [8] permit any

judge to award and make me pay taxes on land that I

own. I have been foreclosed for years and in my humble

estimation, this is ludicrous. Both the state statute and

federal public policy is very clear on it, and still to have

it, I say no. This is why it makes it difficult for your

App. 65

Honor. Mr. Feingold is here listening and he knows it is

wrong. He tried to put words into Judge Corrigan’s

mouth, but to no avail. So, therefore, there is something

to be settled.

THE COURT: What did Judge Corrigan handle?

MR. SIMMONS: The taxes.

THE COURT: East Granby?

MR. SIMMONS: There were three different

judges involved. Well, first Tambora and then Brennan

and the taxes was Judge Corrigan and now it is Judge

Dupont.

Getting back to Diamond, this is another dilly, if I

may use that word. In my way of reasoning, I feel that the

Court has overpaid Diamond based on the information I

submitted to the Court last week. I was not in a position

this past week to do anything because much to my sur-

prise, I gave your Honor my copy of the affidavit of debt,

thinking that I had an additional one or two, which I

usually make, and when I went through [9] my file, I

could not find a copy of that affidavit.

THE COURT: Is this one of the ones you sub-

mitted as an exhibit?

MR. SIMMONS: Yes. Exhibit A.

THE COURT: The clerk would have it.

MR. SIMMONS: i asked Frank, and he said no,

Miss Dupont has the file at home.

THE COURT: I think he has the exhibits. I do

have the file.

App. 66

MR. SIMMONS: All right. Well, if he has the

exhibit, I will get that. I need that.

THE COURT: I am sure if you see him, he can

get a copy made.

MR. SIMMONS: Fine. Well, my position has not

changed. I feel enough time has elapsed on both the

Rogin matter and the Diamond matter, where we are

going into the third month, and I have been pursuing this

well over six or seven months officially, since I sent him

the letter asking for removal of the lien. I filed the

motions to compel and I am still waiting.

My overall position, your Honor, as far as the funds

are concerned, which Mr. Bass is referring to, is that no

matter how this thing goes, no matter where it ends up,

all the monies that are there presently are still going to

end up with Mr. Simmons, even if I [10] lose. However, if

I prevail with all of the measures that are before the

Court presently, then I think Mr. Feingold will have to

turn Bradley Field over to Mr. Simmons.

What I am saying to the Court at this point, the Court

cannot be jeopardized by making any award either to Mr.

Bass, the $40,000, or the monies that have been paid out,

if it is an obligation that I have and that I owe, fine. I

objected strenuously to the taxes. I felt they should not

have been paid. I objected very vigorously against the

payment to the attorneys, and still it was paid. Well,

maybe it is a lawsuit down the road, I don’t know, but the

monies came out of the fund over my objection, and they

should not have been paid. I am not objecting to this

because I owe it. The monies are there and I feel it should

be paid. Why should these people be left hanging and

App. 67

these people are getting old and I recognize that. Well,

senior citizens and who knows how much longer they

will live. They would like to get a few dollars back and I

am fully in accord. I just feel that when I am in accord,”

and it is my monies, that the Court is not jeopardized by

making a favorable decision.

THE COURT: Mr. Feingold.

MR. BASS: Before Mr. Feingold starts, [11] may

I be allowed to ask him two questions?

You have no objection to the disbursement of this

money to Mr. Allaire and Mr. Valente?

MR. SIMMONS: I have no objection what-

soever. Well, I just forgot to make one note, your Honor. I

did ask Mr. Bass in accordance with what your Honor has

done, that he put a date of June 24th, on or before June

24th, and the reason being that these monies are down

there at Hartford National and the turnover date is June

24th. This is the reason I asked and the reason for the

date there. Now, keeping in mind, even if these monies

were paid out tomorrow, the amount of loss that would

occur in relation to the amount of loss for the period of

time, that $330,000 was sitting for eight months with no

interest, which was in the neighborhood of between

thirty-five and $40,000 that went down the drain with no

interest, all because of somebody’s bullheadedness. Well,

when you get two forces who wouldn’t move, and I

wouldn’t until the Federal judge said why can’t they be

an [sic] interest-bearing accounts, of course, Mr. Feingold

had to move. June 24th was at my suggestion, and I think

that your Honor would be in accord with that date. I

App. 68

don’t think it would matter to him whether he gets it

tomorrow or June 24th. I am fully in accord.

[12] MR. BASS: Thank you.

THE COURT: Mr. Feingold.

MR. FEINGOLD: Your Honor, I am Victor

Feingold, Assistant Attorney General. I have appeared

before your Honor on other motions, and in the past I

have resisted any further order of the Court which would

direct the payment of any monies now in the custody of

the Court. I again object to any order of the Court which

would direct the clerk to disburse any of the funds now

on deposit in the Court. My reasons for the taking of this

position are now being set forth by me today before your

Honor. I am now going to introduce a new element,

which might affect the decision of your Honor, and that is

the jurisdiction of your Honor to-act on the motion of Mr. |

Allaire and Mr. Valente, who are seeking each indepen-

dently an order for disbursements of funds.

Now, the first point I want to make is that the basis

for the deposit itself is found in a practice or procedure

new to this state and not known to our practice. The

office of the Attorney General was confused with how to

effect compliance with this stipulated judgment. The

Supreme Court of the State of Connecticut in Simmons

against Wetherall, and in that case the spelling in the

recorded opinion was [13] W-e-t-h-e-r-e-l-l, which is a

mistake. Well, it arises out of the case of Simmons against

Wetherall, which your Honor recited at the opening of

this hearing.

App. 69

In the Supreme Court opinion, at 180 Conn. 587, the

case of Simmons against Wetherall, as reported by the

opinion, referred to an appeal by the plaintiff, Augustus

J. Simmons, from the denial of a motion to open a judg-

ment. The judgment was recited in the opinion of the

Supreme Court as a judgment on stipulation. At page 588

of 180 Conn., the Supreme Court commented on the

nature of the case and some of the background, and

indicated after extensive litigation, all cases were consoli-

dated. The Supreme Court referred, particularly to a

number of pending state cases and the examination of the

records and briefs of the Supreme Court opinion will also

show that there was pending some federal cases in the

United States District Court for the District of Connecti-

cut. The Supreme Court then stated that the parties nego-

tiated a settlement of all cases. I now quote, wherein the

plaintiff agreed to sell the land to the State for an agreed-

upon price. Our reading of the stipulation and the judg-

ment which purportedly conformed to the stipulation,

does result in an uncareful analysis to a simple agreement

to sell land for a price certain. Now, thereafter, no action

was brought to even enforce [14] this agreement. If the

stipulated judgment is viewed, as I claim it must, as an

executory contract for the sale of real estate, the statute of

limitations have passed and the State of Connecticut is

barred from enforcing the agreement by specific perfor-

mance. Well, I believe the statute is 47-33A. When I

discovered in my view that specific performance of an

agreement to sell real estate is unenforceable, then ail

proceedings in accordance with the order of Judge Sha-

piro regarding the removal of encumbrances that fol-

lowed this stipulated judgment, are null and void and

App. 70

cannot properly be even considered. The State can never

obtain voluntarily a deed from Mr. Simmons which was

contemplated by the parties. The State was ready, able

and willing, as the record will show, to pay the agreed-

upon price. Mr. Simmons has resisted furnishing the State

with an executed deed. Furthermore, Mr. Simmons has

made every effort to resist the proceedings in the State

court which gives rise to the stipulated judgment. Well,

the stipulation and the agreement by bringing an action

in the United States District Court attacking the validity

of the State court judge.

Now, I have previously furnished to your Honor, a

certified copy of the complaint from Mr. Simmons pend-

ing in the United States District Court. This [15] morning

Attorney Bass is present on his motion, and I do not

know if he has actual or constructive knowledge of the

fact that there is pending in the United States District

Court, a very important civil action, in part a civil rights

action, which if tried to conclusion could very well result

in a judgment for Mr. Simmons that the State court pro-

ceedings violated his rights. I am speaking of the State

court proceedings that led to the judgment on stipulation.

Now, using that as a piece of evidence, I cannot, in good

conscience, ever or anticipate that Mr. Simmons would

ever deliver to the State a deed of the specific land within

the stipulation for the agreed-upon price. If he will not

deliver the deed, and there is no deed of Mr. Simmons in

the custody of the court for delivery to the State, as there

is money on deposit, then I cannot see why the State

funds should be used to start paying his obligation and

his bills, because that is all this thing amounts to. Well, to

use this money to pay his bills where Mr. Simmons,

App. 71

himself, resisted it, quid pro quo, and has no intentions of

ever delivering a deed to the State for the agreed-upon

price.

Now, since this judgment on stipulation is defined by

me, and I believe as a matter of law must be defined as an

executory agreement for the sale of the [16] land on an

agreed-upon price, and unenforceable because of the stat-

ute of limitations, the Superior Court cannot entertain an

action or specific performance on behalf of the State.

Well, the entire matter must be left for further proceed-

ings in an effort to adjust the differences of the parties.

The action for the judgment on stipulation cannot be

characterized as an equitable claim. It is in no way a

condemnation matter brought under any procedures of

the State of Connecticut to condemn land for airport

purposes or any other purposes.

THE COURT: Excuse me.

(There was a discussion off the record.)

MR. FEINGOLD: I was arguing now that in no

way any of the proceedings that gave rise — none of the

proceedings following the judgment on stipulation were

undertaken in accordance with any of the provisions of

48-11. Now, 48-11 is a statute specifically applicable to

proceedings in imminent [sic] domain, whether it is by

state agency or the State of Connecticut or any munici-

pality or any condemnor who has the power of imminent

[sic] domain. So, 48-11, which gives the Court jurisdiction

of monies on deposit, and also upon application to dis-

bursement of funds on a hearing, in no way applies to

any of the proceedings in the case of Simmons against

Wetherall and related cases. It is true [17] that some of the

App. 72

consolidated cases did involve efforts by the State to

exercise imminent [sic] domain powers for purposes of

acquisition of land of Mr. Simmons’ for airport purposes.

Those efforts were aborted and failed as prior decisions

of the Supreme Court will show. So, the funds that are

now on deposit do not relate to those earlier cases. In

fact, any funds that were on deposit in those cases have

since been either paid out or returned to the State treas-

ury. So, as a point of law in this matter, Mr. Bass in no

way as he claims to seek disbursements of funds, relied

on 48-11.

Now, I am going to the question of another matter

that Judge Shapiro seems to assume that he had the

power to exercise authority when he entertained a motion

of Assistant Attorney General McQueeney for execution

of the judgment.

I now direct your Honor, and invite your Honor’s

attention to another element of jurisdiction in the entire

matter of Simmons against Wetherall. I might say that

whenever I call your Honor’s attention to the question of

jurisdiction, in accordance with the law of the State, if

lack of jurisdiction is brought to your Honor’s attention, I

mean subject matter jurisdiction, no matter in what form

or in what way, your Honor cannot proceed on any of the

proceedings until you [18] resolve the issue of subject

matter jurisdiction. If per chance the jurisdiction question

is interwoven now with many other prior motions that

have not been acted upon, and it has happened, that is

arises on the motions of a claimed predictor of Mr. Sim-

mons, it does not matter so long as this Court, the ques-

tion of jurisdiction is called to your Honor’s attention.

The second point on lack of jurisdiction that I call your

Honor’s attention to, is that when Assistant Attorney

App. 73

General McQueeney came in with a motion for execution

of an unsatisfied judgment, a concern of the State Referee,

Judge Shapiro, was how to execute it. The judgment was

not for money damages. As I recited before, the judgment

on stipulation —

MR. SIMMONS: What was that? Would you

please repeat that?

MR. FEINGOLD: The judgment was not for the

payment of money damages insofar as the State was

concerned. It was in favor of Mr. Simmons for the pay-

ment of an agreed-upon price for the sale of land. I do not

believe that this judgment resulted in the payment of

money damages. Consequently, Mr. Simmons could not

get execution against the State, nor could the State get

execution in the normal way that executions are given

under the statute for judgment. So, Jusge [sic] Shapiro

heard [19] the stalemate that arose here, and Mr. Sim-

mons stated he was ready, willing and able and agreed to

pay the agreed-upon price and refusing to execute and

deliver a deed to the State. So, the Honorable Louis

Shapiro, State Referee, acting under whatever he believed

his statutory pewers were as a State Referee, with all the

powers of a judge of the Superior Court, undertakes to

declare by court order, that title to the land is automat-

ically vested in the State of Connecticut in accordance

with the judgment. I refer your Honor to paragraph one

of an order of Judge Shapiro, that is found in the case that

your Honor recited by docket number in the Superior

Court, Simmons versus Wetherall, and also found on

page 37 of the Supreme Court records and briefs relating

to 180 Conn. at 587. Paragraph one of what purports to be

an order of Judge Shapiro contained in four numbered

App. 74

paragraphs recite prior — paragraph one there is a recita-

tion of a number of matters apparently furnished Judge

Shapiro from the Land Records, in East Granby under the

name of Augustus J. Simmons. Now, included in the list

of matters was the mortgage and agreement of Mr. Dia-

mond, a mortgage of Thomas P. Byrne, a lis pendence of

Leonidas Simmons, a judgment of CBT, an attachment of

Hartford National Bank, a judgment of the applicant

today, Leonard Allaire, [20] Et Al, an attachment of what

purports to be an application of the applicant today,

Valente, a lease to Angelo Roncari and judgment, lien

registration of the applicant today, Patsy Valente, Et Al,

and a lis pendence of Patsy Valente, Et Al, another lis

pendence of Leonard Allaire, Et Al. Well, in addition, a

lease seemingly recorded on March 16, 1978 to Westfield

Vallet Parking, Incorporated, and an attachment of David

B. Salzman. It appears that in view of all of these matters

called to Judge Shapiro’s attention, what the state of the

title was, Judge Shapiro undertook without any motions

before him, and without any proceedings, to enter an

order other than the appearance of Mr. Simmons and the

State, directing that all encumbrances be removed and

that title to the premises described in Exhibit A attached

hereto, together with covenance described in Exhibit B

attached hereto, against the land described in said Exhibit

B is and are vested in the State of Connecticut in accor-

dance with the judgment entered herein.

In no way do I understand that the terms of the

judgment on stipulation empower any court to sum-

marily invest title in the State of Connecticut. I take the

position that Judge Shapiro had no statutory or any other

authority, either as a State Referee, Judge [21] of the

App. 75

Superior Court or acting as a Judge of the Superior Court,

to pass title in this case to the State of Connecticut. It

would appear that Judge Shapiro believed he had that

power, and in doing so believed that he could now exe-

cute in his fashion as a judge, that he had previously

entered in accordance with the stipulation. There is noth-

ing in the terms of the stipulation, as I read it, that even

obligated Mr. Simmons to execute a deed. Therefore, I

come back to what I mentioned before. It is simply an

executory agreement for the sale of real estate. Imperfect

as it is, and maybe it didn’t really accomplish what the

parties intended it to do, it now has developed an unen-

forceable thing in my view. It may very well be that all of

the cases that were supposed to have been consolidated

and settled in the Superior Court, are not truly settled,

and that all cases go back to the status quo they were in

including the United States District Court pending cases

that Mr. Simmons still will have to litigate in the Supreme

Court, his title to the Bradley Field. He still will have to

litigate his claim for money damages that was given to

him by the Special Act of this Legislature where various

defenses have been asserted. We are back with Mr. Sim-

mons battling now in the Superior Court. Well, that is the

turn of the screw on this type [22] of case, because I

cannot see the way the proceedings have gone at this

stage that this judginent can properly be enforced by

either party.

Now, another matter was the fact paragraph two,

where Judge Shapiro directed the State pay to the clerk

these funds. Now, this is a burden on the clerk and that is

nowhere statutory and no proceedings to my knowledge

that can place a burden on the clerk of the Superior Court

App. 76

to take money under and executory agreement for the

sale of land, even if the State was one of the parties to the

agreement. There is no jurisdiction for him to even hold

this. As far as item three, that Mr. Simmons vigorously

resisted, it was an order that the clerk pay to the tax

collector of Granby. Well, paragraph three, and quoting,

that the clerk of said court pay to the tax collector for the

Town of East Granby the sum of $8,761.29 together with

accrued interest, lien in releases from the sum deposited.

This order was without due process and there was no

notification to the tax collector or the clerk, and there was

no notification to Mr. Simmons that such an order would

be entered. There was no opportunity for the parties to

appear in open court and agree or to present evidence on

the nature of this order. The validity of this proceeding

thereafter were had in accordance [23] with this order

that Mr. Simmons vigorously opposed and Judge Corri-

gan ruled he must follow the directions of the Superior

Court acting through Judge Shapiro.

I submit again, as I believe I did to Judge Corrigan,

that if Judge Shapiro had no jurisdiction of the subject

matter in the first instance, then his order directing the

clerk to release monies and to pay what purportedly was

tax bills against the list in the name of Mr. Simmons, that

it was illegal, null and void, and Mr. Simmons could very

well be right in that the payment of that money was not

justified.

Coming to paragraph four -

THE COURT: I believe you have made these

before, Mr. Feingold. I wonder if you could maybe

App. 77

address yourself to your objection to this motion or these

two motions, which are for disbursements.

MR. FEINGOLD: Yes. Coming to that last one,

the order that would bring anybody into this court, if

these orders had any validity, was found in paragraph

four of Judge Shapiro’s order, where he stated that pur-

suant to Section 52-484 and/or Section 47-31 of the Gen-

eral Statutes, as the Court may deem applicable, the

parties, encumbrances and lienors described herein, be

and are cited to appear before the Court with proof of the

amount and validity of their [24] liens or encumbrances,

that the clerk make payment to said parties in accordance

with the equities in said balance as determined by further

order of the Court and that the balance thereafter, if any,

be paid to the plaintiff.

Now, while the citation that was issued by the Assis-

tant Attorney General was made and was supposed to

have been certified by a deputy sheriff, and Mr. Simmons

was not even named as a party on that proceeding, the

citation itself does not have any of the allegations neces-

_ Sary to invoke the jurisdiction of this Court under Section

52-44, which is an action to acquire title, nor does that

citation have any of the elements necessary to invoke the

jurisdiction of this Court under Section 47-31, which is an

action of interpleader, and none of the parties apparently

have been served, according to the sheriff’s return. Well,

upon examination of the citation, which is now on file in

the Superior Court, and somewhere in this Simmmons

against Wetherall, Superior Court case, without having its

own docket number, have never been defaulted out and

their priorities and their equities have never been deter-

mined. This simple effort by a motion of both of these

App. 78

named creditors to seek a disbursement of funds, it

doesn’t follow any of the requirements for an action, title

or interpleader, it [25] must fail. It doesn’t address itself

properly to enable the Court to even determine the

amount and validity of the claim. In addition, the proof

would be required more than a motion practice and, at

least, there should have been testimony, if not the parties,

then a certified copy of the land records indicating indeed

that a judgment lien exists on the land records, which is

entitled to a priority and also testimony regarding what

aspects or what amount of the judgment lien, if any, has

been satisfied should be required. In addition, the ques-

tion of whether interest accrues on the judgment lien and

also it has to be claimed and made certain, because the

Legislature in enacting the statute on execution on judg-

ment altered the rate of interest, which previous to Octo-

ber 1, 1979 was six percent, and effective October 1, 1979,

it became eight percent. If statutory interest is due on the

judgment lien, that must be made known. Well, whether

the judgment is based on notes or a higher rate of inter-

est, that survives the judgment, and to be paid until it is

fully satisfied, we have no way of knowing. Since there is

no proof at all of the amount and validity of the claim,

without even testimony or certified copies of records, I do

not see how you can proceed, even if your Honor should

overrule the prior claims that I have made. That is all.

[26] THE COURT: Thank you.

MR. BASS: A very short rebuttal, your Honor.

First of all, I would object to Mr. Feingold at this time

questioning the jurisdiction of the Court to hear this case.

Secondly, your Honor, in Mr. Feingold’s recitation that he

gave your Honor this morning, I forget which paragraph

App. 79

he referred to in Judge Shapiro’s decision, there was to be

a citation issued so that all people would come forth and

present their claims. I have a right to inform the Court

that in the citation, my two clients were listed under the

care of my office. I will state to the Court that I have

never been served any citation nor has my client ever

been served with any kind of a citation to give us any

notice to come in to determine what our priorities are in

this matter. Secondly, perhaps Section 48-11 is not appli-

cable. I would request that the Court — excuse me. I will

withdraw that.

The reason why we may reference to this statute,

because it is the only way that the clerk’s office could

handle disbursements and through their advice on how

to try to present a motion for disbursement of these

monies, and that is why we made reference to it. My

feeling is that this case is a very old case [27] and it has

seen many, many motions and actions. There seems to be

a substantial problem with the State’s end of this case.

Now, whether the problems are due to Mr. Simmons or

the State, I don’t know, your Honor. I have two people

that are looking for money that are entitled to money, and

there are funds available. I would ask your Honor to

weigh all the equities. The Court has a responsibility to

all the people and not just the State. If the State has gone

over any statute of limitation for any action they may

have, that is not a concern of this Court. If the Court has

jurisdiction and if all parties submit themselves to the

jurisdiction of the Court, I do not feel jurisdiction is a

problem at this time.

I would like the Court to realize my clients as well as

myself, pursuant to whatever paragraph it was in Judge

App. 80

Shapiro’s decision, that Mr. Feingold referred, were never

cited and never served. We had no knowledge of this.

THE COURT: I think I have enough under-

standing of it. Did you want to say something further?

MR. SIMMONS: I should cap it off, I think,

your Honor. I find myself in a very difficult position to

follow Mr. Feingold’s remarks, because he was vacilating

[sic] all the way from left field to center [28] field to right

field to home plate. I sort of feel like I have been led out

to the woods somewhere and left there. First he said that

they don’t have any authority and they don’t have any

jurisdiction, and then he turns around and in the next

breath they are entitled - automatically vested to the

State. What I want to have your Honor look at is — well,

there are so many statutes and so many motions and

everything that has been thrown out here and what is

happening, I think, Mr. Bass put it correctly, the State has

gone out in high water and found itself in the middle of

the stream and found itself in trouble. It says maybe we

should back up and turn around and try to reach shore

again. Their records show, your Honor, there is no denial

by anybody that the State has been there for over 20

years. They have not put any monies up for the use of

this land for over 20 years and they are still there. The

liability is accumulating. As I said in my opening

remarks, not only is the money there, but if they are

wrong, if they have not defended themselves, there is a

hell of a lot more at stake. Well, your Honor would not

put yourself in jeopardy by making a decision to favor

these people and let them have their money. He said the

State funds should not be used to pay the bills. Well,

before they put foot on that [29] property, your Honor,

App. 81

they are supposed to put money up first before that. Here

we are 20 years later and how much money there is. He is

trying to say we are here and we are staying there and

there is no money and your Honor doesn’t have the

jurisdiction to dispose of any of this money. How ludi-

crous can this be?

Now, I am preparing a brief for the Supreme Court

over a very minimal $8,000, because I was denied a

condemnation in ‘68. I want to read this for the record

and into the record. In addition to reasonable and neces-

sary expenses and disbursements due the owner, the

obligation becomes more apparent and obviously where

the condemnor cannot restore to the owner in an as-

before and re-establish the status quo position, such as

cutting of trees, bulldozing terrain, obtaining legal

injunctions against the owner from enjoying the use of |

real property for profit, removal of thousands of dollars

worth of material without payment, without owner’s per-

mission, being ordered by the court to pay taxes on

property which the owner was denied access borders on

the ludicrous.

THE COURT: Is that an appeal you are taking?

MR..SIMMONS: A decision where I was denied

$8,000.

THE COURT: Is that another case?

[30] MR. SIMMONS: Yes.

THE COURT: All right.

MR. SIMMONS: They have tried it so many

times and it is about time they do something right. The

attempt here is to come into court and confuse your

App. 82

Honor, and no matter who the judge, if he says yes, no,

and they say yes or no, and first he said we are wrong.

He admits the Attorney General’s office got so confused. I

grant you they didn’t know which way to go. I have been

with this through the proceedings and at one point the

Attorney General’s office, everybody was going to the

clerk’s office to ask for some direction. It is a sad state of

affairs when they don’t know who is on first base.

Now, as far as proof of the validity, I don’t think that

is Mr. Feingold’s responsibility. That is my responsibility.

If he wants to charge me 20 percent interest and I am

agreeable, that is my responsibility and that is none of his

business. Those are my funds that are being allocated and

not theirs.

Now, 48-11, your Honor, is the statute that is applica-

ble. If not applicable, then there has to be another statute.

The State has no authority to proceed under any under-

taking unless they are following some given statute. If

48-11 is not applicable, then I [31] want to know what is

applicable, because they cannot operate without operat-

ing under the General Statutes. When he said there is no

equity in this case, none of the proceedings were under

48-11. It is just back and forth. He has been vacilating

[sic] and I couldn’t make rhyme or reason of his state-

ments. He said that they didn’t have statutory — that

Judge Shapiro did not have the statutory authority to

pass title. What are they doing there? If these funds are

not available, your Honor, to dispense and Judge Shapiro

did not have the authority to pass title, then as I said in

Federal Court, they have a 24-hour notice off the prop-

erty. You can’t keep going on it for 20 years and using my

property and say, hell, you are not going to use the

App. 83

money either. I think your Honor, you ought to put

blinkers on and forget all of these statutes and double

talk by the State and look at it from a practical aspect.

Well, what has happened and what is happening? I am

not going to be redundant. The liability is accumulating.

He is very well aware of what happened and aware of the

problems confronting the State. There is a means and

method. The statutes are very clear. Well, the thing will

be resolved. Well, if there was no statute applicable, then

it would be a horse of a different color. I grant you I do an

awful lot of [32] research myself and I find it very diffi-

cult to find a situation where what happens when they

fail in condemnation or fail in their attempts in imminent

[sic] domain. It is a unique situation. I did find one in

New York State and I will give your Honor the quote and

you can look at it, too, Mr. Feingold. Well, 205 2d, New

York, 626.

THE COURT: Does this have anything to do

with these motions which are in front of me today?

MR. SIMMONS: Only in the respect that he is

attempting to put a roadblock, before all payments. It is a

paradoxical situation. Originally they were the ones that

triggered the payment and claimed the debt off in the

land records. They started it. Well, now we have a turn-

around and they are saying, wait, we are not going to pay

anybody any more. It is not his money or supposedly not

his, it is the State’s. That is the only relationship, your

Honor. I say that money is mine or equivalent and they

have to put a deposit up before they can put a foot on my

property. It has not been done and I am treating this as

though it were a deposit against the liability that is con-

tinuing. These payments should be made and these other

App. 84

matters should be cleared up. Somebody will have to

make a decision.

THE COURT: You say the money that is [33]

there has to do not with payment for the land, but a

deposit toward whatever future liability may be found?

MR. SIMMONS: That is correct.

THE COURT: All right.

MR. SIMMONS: A portion of the land, your

Honor, common sense dictates there is considerable dam-

age here. As I read to you, they took all of the building

material and they cut the trees and never paid five cents

for it. Then to have Attorney Feingold come in and say

none of the money was for damages, and put that on the

record, I mean, my God, how much more incriminating

can it be? I ask your Honor to act favorably on all of these

motions.

THE COURT: Thank you very much.

MR. BASS: If your Honor grants the motion I

have prepared the order.

THE COURT: Do you have copies?

MR. BASS: Yes. 3

THE COURT: All right. Thank you.

* + *

App. 85

[34] CERTIFICATE

STATE OF : SUPERIOR COURT

CONNECTICUT : JUDICIAL DISTRICT

CASE NO. 163875 : AT HARTFORD,

AUGUSTUS SIMMONS : CONNECTICUT

VS. : JUNE 7, 1982

HORACE WETHERALL

I hereby certify that the within and foregoing (33)

pages constitute a true, complete and accurate transcript

of the proceedings in the above-entitled matter, heard

before Hon. Antoinette L. Dupont, Judge in the Superior

Court, Judicial District of Hartford, at Hartford, Connect-

icut, on June 7, 1982.

Dated at Hartford, Connecticut, this 18th day of

April, 1984.

/s/ Harold J. Moan, Sr.

Harold J. Moan, Sr.

Certified Court Reporter

App. 86

EXHIBIT 10

December 15, 1960

Mrs. Ignace Simmons

Route 20

East Granby, Connecticut

Dear Mrs. Simmons:

It is our understanding that a representative of the Joseph

P. Kennedy & Company called on you and your son,

relative to negotiating a price for the acquisition by the

State of your property located adjacent to Route 20. At

that meeting, your son requested that the state indicate

the need for this proposed acquisition.

This land, totaling approximately 13.5 acres lies within

the approach zone to our instrument runway at Bradley

Field. The width and length of this approach zone is

established by the State in conjunction with the Federal

Government. Under an agreement entered into in 1955,

the State and the Federal Government agreed to acquire

this parcel of land in the interest of public safety. This

agreement was not entered into until all parties had

investigated this area and deemed it most necessary that

this tract of land be acquired to protect the public.

We hope this information will help to clarify the situa-

tion.

Very truly yours,

Donald J. Lynch

Deputy Director

DJL/D

cc: Joseph P. Kennedy & Company

App. 87

DEPARTMENT OF COMMERCE

Crvit AERONAUTICS ADMINISTRATION

WASHINGTON 25

GRANT AGREEMENT

Part I -— Offer

CONTRACT NO. CICA Date of Offer

36-A January 12, 1955

Bradley Field Airport

Project No.

09-06-009-507

TO: STATE OF CONNECTICUT

(herein referred to as the “Sponsor”)

FROM: The United States of America (acting through the

Administrator of Civil Aeronautics, herein

referred to as the “Administrator”)

WHEREAS, the Sponsor has submitted to the Administra-

tor a Project Application dated December 2, 1954 for a

grant of Federal funds for a project for development of

the Bradley Field Airport (herein called the “Airport”)

together with plans and specifications for such project,

which Project Application, as approved by the Adminis-

trator, is hereby incorporated herein and made a part

hereof; and

~

WHEREAS, the Administrator has approved a project for

development of the Airport (herein called the “Project”)

consisting of the following described airport develop-

ment:

“Acquisition of land for ‘Doolittle’ clear zones

both ends Runway 6-24; acquisition of land and

App. 88

navigation easements for protection of

approaches 6-24, 19, 33”.

all as more particularly described in the property map

and plans and specifications incorporated in the said

Project Application;

NOW THEREFORE, pursuant to and for the purposes of

carrying out the provisions of the Federal Airport Act (60

Stat. 170; Pub. Law 377, 79th Congress), and in consider-

ation of (a) the Sponsor’s adoption and ratification of the

representations and assurances contained in said Project

Application, and its acceptance of this Offer, as hereinaf-

ter provided, and (b) the benefits to accrue to the United

States and the public from the accomplishment of the

Project and the operation and maintenance of the Airport,

as herein provided.

THE ADMINISTRATOR, FOR AND ON BEHALF OF THE

UNITED STATES HEREBY OFFERS AND AGREES to pay,

as the United States’ share of the cost in accomplishing

the project, 50 percent of all allowable project costs sub-

ject to the following terms and conditions:

1. The maximum obligation of the United States

payable under this Offer shall be $37,000.00

2. The Sponsor shall

(a) begin accomplishment of the Project within a

reasonable time after acceptance of this

Offer, and

(b) carry out and complete the Project in accor-

dance with the terms of this Offer, and the

Federal Airport Act and the Regulations pro-

mulgated thereunder by the Administrator

in effect on the date of this Offer, which Act

App. 89

and Regulations are incorporated herein and

made a part hereof, and

(c) carry out and complete the Project in accor-

dance with the plans and specifications and

property map incorporated herein as they

may be revised or modified with the

approval of the Administrator or his duly

authorized representatives.

The Sponsor shall operate and maintain the Air-

port as provided in the Project Application incor-

porated herein.

The maximum amounts of building space which

the Sponsor shall be obligated to furnish civil

agencies of the United States for the purposes

and on the terms and conditions states in

Paragraph 9 of Part III of the Project Appli-

cation dated May 18, 1949, for Project No.

9-06-009-906-009-801 shall be as set forth in the

attached schedule of maximum space require-

ments which is incorporated herein and made a

part hereof.

Any misrepresentation or omission of a material

fact by the Sponsor concerning the Project or the

Sponsor’s authority or ability to carry out the

obligations assumed by the Sponsor in accepting

this Offer shall terminate the obligation of the

United States, and it is understood and agreed by

the sponsor in accepting this Offer that if a mate-

rial fact has been misrepresented or omitted by

the Sponsor, the Administrator on behalf of the

United States may recover all grant payments

made.

The Administrator reserves the right to amend or

withdraw this Offer at any time prior to its accep-

tance by the Sponsor.

App. 90

7. This Offer shall expire and the United States shall

not be obligated to pay any of the allowable costs

of the Project unless this Offer has been accepted

by the Sponsor within 60 days from the above

date of Offer or such longer time as may be

prescribed by the Administrator in writing.

8. It is understood and agreed that the areas delin-

eated on Exhibit “A” as ‘Doolittle’ clear zones at

each of the Runway 6-24 will be maintained by

the Sponsor completely free from all structures

except these required for aids to air navigation,

unless otherwise authorized by the Administra-

tor.

9. It is further understood and agreed by and

between the parties hereto that the Project Appli-

cation dated May 18, 1949 for Project No.

9-06-009-801 is hereby amended by deleting the

last sentence of Paragraph 7 of Part III thereof

and inserting in lieu thereof the following:

“The airport approach standards to be

followed in performing the covenants

contained in this paragraph shall be

those established by the Administrator

in Office of Airports Drawing No. 814,

dated April 26, 1950, unless otherwise

authorized by the Administrator”.

The Sponsor’s acceptance of this Offer and ratification

and adoption of the Project Application incorporated

herein shall be evidenced by execution of this instrument

by the Sponsor, as hereinafter provided, and said Offer

and acceptance shall compromise a Grant Agreement, as

App. 91

provided by the Federal Airport Act, constituting the

obligations and rights of the United States and the Spon-

sor with respect to the accomplishment of the Project and

the operation and maintenance of the Airport. Such Grant

Agreement shall become effective upon the Sponsor’s

acceptance of this Offer and shall remain in full force and

effect throughout the useful life of the facilities devel-

oped under the Project but in any event not to exceed

twenty years from the date of said acceptance.

UNITED STATES OF AMERICA

THE ADMINISTRATOR OF CIVIL

AERONAUTICS

By /s/ Ora W. Young

Regional Administrator,

Region One

Part II — Acceptance

The STATE OF CONNECTICUT does hereby ratify and

adopt all statements, representations, warranties, cove-

nants, and agreements contained in the Project Applica-

tion and incorporated materials referred to in the

foregoing Offer and does hereby accept said Offer and by

such acceptance agrees to all of the terms and conditions

thereof. .

Executed this 1st day of February 1955.

STATE OF CONNECTICUT

(Name of Sponsor)

By /s/ K.H. Ringrose

Title Director of Aeronautics

(SEAL)

Attest: /s/ Mildred P. Allen

App. 92

Title: | Secretary of State

CERTIFICATE OF SPONSOR’S ATTORNEY

I, Jack Rubin, acting as Attorney for STATE OF

CONNECTICUT, ge-here-te-certify: (herein referred to as

“Sponsor”), to hereby certify:

That I have examined the foregoing Grant Agreement

and the proceedings taken by said Sponsor relat-

ing thereto, and find that the Acceptance thereof by said

Sponsor relating thereto, and find that the

Acceptance thereof by said Sponsor has been

duly authorized and that the execution thereof is in all

respects due and proper and in accordance with the laws

of the State of Connecticut __, and further that, in

my opinion, said Grant Agreement constitutes a legal and

binding obligation of the Sponsor in accordance

with the terms thereof.

Dated at HARTFORD, CONNECTICUT this ist day of

February, 1955.

/s/ Jack Rubin

Title Assistant Attorney

General

App. 93

EXHIBIT 11

STATE OF CONNECTICUT

LOUIS SHAPIRO SUPREME COURT BUILDING

STATE REFEREE P.O. DRAWER N. STATION A

HARTFORD, CONN. 06106

July 18, 1980

Jason E. Pearl, Esquire

19 South High Street

P.O. Box 183

New Britain, CT 06050

Re: No. 16 38 75

Augustus J. Simmons v.

Horace B. Wetherell, et al

Dear Mr. Pearl:

This will acknowledge receipt of your Motion For Dis-

bursement of Funds by Clerk dated July 16, 1980 and

received by me this morning.

Since your phone call to me, I am not certain as to what

steps should be taken in order to make disbursement as

requested by you. Since the amount attached by Atty.

Salzman et als was accomplished by bringing suit, it

would seem to me that before distribution could be made,

that this claim be reduced to a judgment. If there is a

more expeditious way to proceed, I would appreciate

hearing from you as soon as possible.

I’m also concerned about the order of distribution since

the land records, according to your memorandum

attached to your letter, show a list of encumbrances prior

to the date of the Salzman attachment.

App. 94

Also, is view of the-

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