text:
    STATE OF CONNECTICUT v. DANIEL JARRETT
    (AC 23506)
    Foti, Dranginis and McLachlan, Js.

      Argued December 1, 2003 —
    officially released April 20, 2004

      Raymond L. Durelli, special public defender, for the appellant (defendant).

      Proloy K. Das, special deputy assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Victor Carlucci, Jr., senior assistant state’s attorney, for the appellee (state).
   Opinion

McLACHLAN, J.

The defendant, Daniel Jarrett, appeals from the judgment of conviction, rendered after a juiy trial, of possession of four ounces or more of a cannabis-type substance in violation of General Statutes § 21a-279 (b), criminal possession of a pistol or revolver in violation of General Statutes § 53a-217c and possession of a sawed-off shotgun in violation of General Statutes § 53a-211. The defendant claims that the trial court improperly (1) instructed the jury on constructive possession, (2) instructed the jury on his presumption of innocence and (3) admitted into evidence items regarding proof of residence. The defendant also claims that prosecutorial misconduct deprived him of his due process right to a fair trial. We affirm the judgment of the trial court.

The relevant facts are as follows. On December 22, 2000, detectives from the Hartford police department executed a search warrant at apartment 202 at 68-70 Morris Street, from which the defendant was allegedly selling drugs. They recovered more than four pounds of marijuana, a .32 caliber pistol and a sawed-off shotgun. They also seized numerous items identifying the defendant. An arrest warrant for the defendant was obtained and successfully executed on February 22, 2001.

The defendant was charged by substitute information with possession of four ounces or more of a cannabis-type substance in violation of § 21a-279 (b), possession with intent to sell one kilogram or more of a cannabis-type substance in violation of General Statutes § 2 la-278 (b), criminal possession of a pistol or revolver in violation of § 53a-217c and possession of a sawed-off shotgun in violation of § 53a-211. After a trial by jury, the defendant was found guilty on all but the possession with intent to sell count. The defendant filed motions for a judgment of acquittal and for a new trial, which were denied. The court sentenced the defendant to a total of ten years incarceration, execution suspended after eight years, with five years probation. This appeal followed.

I

The defendant first claims that the court improperly instructed the jury on constructive possession. The defendant did not file a written request to charge and failed to object to the court’s instructions. He now requests review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). We review his claim under Golding because the record is adequate for review and the claim is of constitutional magnitude. “[A]n improper jury instruction as to an essential element of the crime charged may result in the violation of the defendant’s due process right to a fair trial . . . .” (Internal quotation marks omitted.) State v. Smith, 70 Conn. App. 393, 398, 797 A.2d 1190, cert. denied, 261 Conn. 924, 806 A.2d 1063 (2002).

The standard of review for constitutional claims of improper jury instructions is well settled. “In determining whether it was . . . reasonably possible that the jury was misled by the trial court’s instructions, the charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding them to a correct verdict in the case. . . . The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge. . . . The test to be applied ... is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result. ... As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury ... we will not view the instructions as improper.” (Citation omitted; internal quotation marks omitted.) State v. Respass, 256 Conn. 164, 182, 770 A.2d 471, cert. denied, 534 U.S. 1002, 122 S. Ct. 478, 151 L. Ed. 2d 392 (2001).

The defendant was charged with four possessory offenses. On appeal, he claims that the court’s instruction on constructive possession was improper because it did not adequately address intent. We disagree.

To prove constructive possession, the state must prove that the defendant exercised dominion and control over the contraband and had knowledge of its presence and character. State v. Hernandez, 254 Conn. 659, 669, 759 A.2d 79 (2000). In our criminal statutes con-ceming possession, control must be exercised intentionally. State v. Hill, 201 Conn. 505, 516, 523 A.2d 1252 (1986). Thus, to meet the requirements of control, the defendant must have intended to exercise control over the object. That intent may be proved by circumstantial evidence. State v. Knight, 56 Conn. App. 845, 851, 747 A.2d 13 (2000).

The court’s instructions informed the jury that control “is to be given its ordinary meaning; that is to say that the defendant is in control of the cannabis-type substance when it is shown that he exercises a direct control over it . . . .” (Emphasis added.) That description is significant, for it suggests an “[ijmmediate or proximate” control. Ballentine’s Law Dictionary (3d Ed. 1969). To “direct” is to guide, regulate or control. Id.

The court’s instructions on possession in the present case followed almost verbatim the model juiy instructions found in J. Pellegrino, Connecticut Selected Jury Instructions: Criminal (3d Ed. Rev. 2001) § 8.1, p. 383. Neither mention intentional control. A review of constructive possession in Connecticut law indicates that explicit reference to intentional control is the exception, not the norm. Our decisions consistently have held that to prove either actual or constructive possession, the state must prove that the defendant exercised dominion and control over the contraband and had knowledge of its presence and character. See State v. Hernandez, supra, 254 Conn. 669; State v. Nesmith, 220 Conn. 628, 634 n.9, 600 A.2d 780 (1991); State v. Reddick, 207 Conn. 323, 328, 541 A.2d 1209 (1988); State v. Sanchez, 75 Conn. App. 223, 242, 815 A.2d 242, cert. denied, 263 Conn. 914, 821 A.2d 769 (2003); State v. Thompson, 46 Conn. App. 791, 797-98, 700 A.2d 1198 (1997). Furthermore, Connecticut appellate courts have rejected challenges to jury instructions due to the lack of an explicit instruction on intentional control. See State v. Respass, supra, 256 Conn. 181-84; State v. Smith, 38 Conn. App. 29, 43, 658 A.2d 156 (1995). Accordingly, we hold that a separate instruction on the requirement of intentional control need not be provided in every instance. Because the court instructed the jury that it must find that the defendant exercised direct control over the alleged contraband, we conclude that the jury was instructed properly on intentional control.

The defendant also claims that the court failed to instruct the jury that constructive possession required him to have knowledge of the character of the contraband. That claim merits little discussion. In its instructions, the court stated that the state must “prove beyond a reasonable doubt that the defendant knowingly possessed the cannabis-type substance.” In addition, the court provided an illustrative example, explaining that “I have constructive possession of the books and other things in my office, even though they are not in my hands, because I have control over them, and I know what and where they are.” We conclude that the court properly instructed the jury that the defendant was required to have knowledge of the character of the contraband.

Reading the court’s charge as a whole, we conclude that the jury was instructed properly on constructive possession. Accordingly, the defendant’s claim fails to satisfy Golding's third prong.

II

The defendant claims that the court improperly instructed the jury on his presumption of innocence. The defendant again did not file a written request to charge or object to the court’s instructions. Again, he requests review under State v. Golding, supra, 213 Conn. 239-40.

The defendant’s claim has little merit. Even if we assume that a constitutional violation exists, we would conclude that any instructional error was harmless beyond a reasonable doubt. Jury charges are to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge. State v. Respass, supra, 256 Conn. 182. We have recognized that when a court gives a lengthy jury instruction, a slip of the tongue may occasionally occur. Opotzner v. Bass, 63 Conn. App. 555, 562, 777 A.2d 718, cert. denied, 257 Conn. 910, 782 A.2d 134 (2001), cert. denied, 259 Conn. 930, 793 A.2d 1086 (2002).

Our review of the record persuades us that the court’s inaccurate instruction was a mere slip of the tongue. The court incorrectly instructed the jury that “the presumption of innocence alone isn’t sufficient to acquit a defendant unless and until the State presents sufficient evidence during the trial to acquit a defendant — I’m sorry — to satisfy the jury beyond a reasonable doubt of the defendant’s guilt.” Viewed in isolation, that misstatement potentially is misleading. Viewed in the context of the overall charge, its harmlessness becomes apparent.

The jury was repeatedly instructed on the defendant’s presumption of innocence and the state’s burden of proof beyond a reasonable doubt. The court explained that “the defendant is presumed to be innocent unless and until he is proven guilty beyond a reasonable doubt.” In addition, the jury was provided with written instructions. Those instructions stated that the “presumption of innocence alone is enough to acquit a defendant” and that “the burden is on the prosecution to prove the defendant guilty of the crime or crimes it has charged, and the defendant does not have to prove his innocence.”

We do not require technical perfection injury instructions. State v. Vessichio, 197 Conn. 644, 650, 500 A.2d 1311 (1985), cert. denied, 475 U.S. 1122, 106 S. Ct. 1642, 90 L. Ed. 2d 187 (1986). Viewing the charge as a whole, the court’s misstatement was harmless beyond a reasonable doubt.

Ill

The defendant next claims that the court improperly admitted into evidence items regarding proof of residence that were seized during the December 22, 2000 search of his apartment. Before trial, the defendant filed a motion to suppress those items, which was granted in part and denied in part.

“Our standard of review of a trial court’s findings and conclusions in connection with a motion to suppress is well defined. A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record .... [W]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision . . . .” (Internal quotation marks omitted.) State v. Clark, 255 Conn. 268, 279, 764 A.2d 1251 (2001).

The warrant in the present case described the items to be seized as “[mjarijuana, green plant like substance, cannabis sativa, measuring devices, records of sale and monies derived from same, proof of residence, packaging materials, fire-arms and ammunition.” The defendant argues that the “proof of residence” language fails to comply with the particularity requirement of the fourth amendment to the United States constitution. We disagree.

The fourth amendment requires all warrants to “particularly describ[e] the place to be searched, and the persons or things to be seized.” “The particularity requirement reflects two concerns. . . . The first concern is the deterrence of general, exploratory rummaging in a person’s belongings. . . . The second concern is that the scope of a lawful search will be limited to the places in which there is probable cause to believe that [the items sought] may be found.” (Citations omitted; internal quotation marks omitted.) State v. Buddhu, 65 Conn. App. 104, 109, 782 A.2d 169 (2001), rev’d on other grounds, 264 Conn. 449, 825 A.2d 48 (2003) (holding that warrant valid although description of place to be searched inaccurate).

“[T]he description of items to be seized in a warrant need only be as specific as the circumstances and the nature of the activity under investigation permit. . . . In construing the terms of a warrant, the circumstances and nature of the activity under investigation dictate a practical margin of flexibility. . . . This principle, which applies in the law of the execution of warrants, is consistent with the concomitant principle, which applies in the law of the validity of warrants, that probable cause is to be determined based on the totality of the circumstances, viewed in a common sense and practical manner.” (Citations omitted; internal quotation marks omitted.) State v. Montgomery, 254 Conn. 694, 704, 759 A.2d 995 (2000). The warrant need not “enable authorities to minutely identify every item for which they are searching.” (Internal quotation marks omitted.) State v. Ruscoe, 212 Conn. 223, 234, 563 A.2d 267 (1989), cert. denied, 493 U.S. 1084, 110 S. Ct. 1144, 107 L. Ed. 2d 1049 (1990).

The description of the items sought to be seized was as specific as the circumstances and nature of the activity under investigation permitted. The police were seeking items that would establish the defendant’s residence at the apartment. It would have been impossible to describe the objects sought with any great specificity, as they had no idea precisely what proof lay inside. See id.

The defendant asks us to require the inclusion of “illustrative lists” in such warrants. We decline his invitation. Such a mandate would contravene our particularity requirement jurisprudence, which is characterized by a practical margin of flexibility. State v. Montgomery, supra, 254 Conn. 704. Moreover, requiring illustrative lists would invite speculation on the part of the police. Even if we assume that the warrant had included such a list, it is unlikely to have included X rays of the defendant, an automatic teller machine card, hospital bills, a motor vehicle infraction ticket and various child support payment documentation. Yet, all were found at the apartment and deemed admissible by the court. Although illustrative lists may be appropriate in certain circumstances, this case is not one of them.

In ruling on the defendant’s motion to suppress, the court found, and we agree, that the “items clearly belonged to the defendant as his personal property and were found in [the apartment]. The items would, therefore, tend to prove that the defendant resided there. They are, therefore, relevant and fit within the category of items that was specified in the warrant . . . .” For that reason, the motion to suppress was denied in part. Because that conclusion is legally and logically correct, we find that the court properly admitted into evidence those items regarding proof of residence that were seized during the December 22, 2000 search of his apartment.

IV

The defendant’s final claim is that prosecutorial misconduct deprived him of his due process right to a fair trial. Specifically, the defendant claims that the prosecutor improperly commented on both his failure to testify and facts not in evidence. Prosecutorial misconduct has become the criminal equivalent of the CUTPA claim, seemingly attached to all criminal appeals whether meritorious or not. At oral argument, the defendant uttered not a single word as to his multiple prosecutorial misconduct claims.

Before addressing those specific claims, we set forth the principles that guide our inquiry. “To prove prosecu-torial misconduct, the defendant must demonstrate substantial prejudice. ... In order to demonstrate this, the defendant must establish that the trial as a whole was fundamentally unfair and that the misconduct so infected the trial with unfairness as to make the conviction a denial of due process.” (Citations omitted; internal quotation marks omitted.) State v. Singh, 259 Conn. 693, 699-700, 793 A.2d 226 (2002). “[I]t is not the prosecutor’s conduct alone that guides our inquiry, but, rather, the fairness of the trial as a whole.” Id., 701.

In analyzing claims of prosecutorial misconduct, we engage in a two step analytical process. “The two steps are separate and distinct: (1) whether misconduct occurred in the first instance; and (2) whether that misconduct deprived a defendant of his due process right to a fair trial. Put differently, misconduct is misconduct, regardless of its ultimate effect on the fairness of the trial; whether that misconduct caused or contributed to a due process violation is a separate and distinct question that may only be resolved in the context of the entire trial, an inquiry that in the present case necessarily will require evaluation of the defendant’s other misconduct claims.” State v. Ceballos, 266 Conn. 364, 381-82 n.29, 832 A.2d 14 (2003).

A

The defendant first claims that the prosecutor improperly commented on his failure to testify. “[C]omment by the prosecuting attorney ... on the defendant’s failure to testify is prohibited by the fifth amendment to the United States constitution.” (Internal quotation marks omitted.) State v. Satchwell, 244 Conn. 547, 570, 710 A.2d 1348 (1998). “The ultimate test of whether a prosecution argument indirectly and impermissibly comments on the defendant’s failure to testify is whether, because of its language and context, the jury would naturally and necessarily interpret it as comment on the defendant’s failure to testify.” (Internal quotation marks omitted.) State v. Downing, 68 Conn. App. 388, 398, 791 A.2d 649, cert. denied, 260 Conn. 920, 797 A.2d 518 (2002).

During closing argument, the prosecutor stated: “[T]here was no explanation why the defendant had [an insurance policy that was seized during the search of the apartment] with his other personal documents. Where do you keep personal documents?” The defendant argues that a jury would naturally and necessarily interpret that statement as a comment on his failure to testify. We disagree.

The state is not prohibited from “calling to the jury’s attention any portion of the evidence that stands uncontradicted . . . .” (Internal quotation marks omitted.) State v. Forde, 52 Conn. App. 159, 174, 726 A.2d 132, cert. denied, 248 Conn. 918, 734 A.2d 567 (1999). In the present case, the state introduced evidence that the defendant’s Allstate insurance policy was found during the December 22, 2000 search of the apartment. That evidence was uncontested. Moreover, because the defendant made no objection to the statement at trial, we may presume that he did not consider it to be seriously prejudicial at the time it was made. See State v. Reynolds, 264 Conn. 1, 165, 836 A.2d 224 (2003); State v. Robinson, 227 Conn. 711, 745-46, 631 A.2d 288 (1993). We conclude that that the defendant has failed to establish that the prosecutor’s statement was naturally and necessarily an improper comment on the defendant’s failure to testify.

B

The defendant next claims that the state improperly commented on facts that were not in evidence. The defendant attacks several remarks made by the prosecutor during closing argument. On the basis of our review of the record, we conclude that those remarks concerned reasonable inferences that the jury could draw. “A prosecutor may invite the jury to draw reasonable inferences from the evidence; however, he or she may not invite sheer speculation unconnected to evidence.” (Internal quotation marks omitted.) State v. Ceballos, supra, 266 Conn. 400. “[P]arties are allowed a certain degree of latitude to express their views of what evidence was presented at trial.” State v. McKiernan, 78 Conn. App. 182, 201, 826 A.2d 1210, cert. denied, 266 Conn. 902, 832 A.2d 66 (2003).

The defendant also challenges the prosecutor’s statement that defense counsel “did not ask the officers, ‘Did you find toothbrushes and toothpaste in there?’ ” The defendant objected to that remark, and the court provided a curative instruction. We agree with the defendant that the remark was improper; however, the prejudicial effect of the comment was mitigated by the court’s curative instruction. See State v. Ubaldi, 190 Conn. 559, 563, 462 A.2d 1001 (“prompt cautionary instruction to the jury regarding improper prosecutorial remarks obviates any possible harm to the defendant”), cert. denied, 464 U.S. 916, 104 S. Ct. 280, 78 L. Ed. 2d 259 (1983); see also State v. Velasco, 253 Conn. 210, 246, 751 A.2d 800 (2000) (“[i]n the absence of an indication to the contrary, the jury is presumed to have followed [the] curative instructions”).

C

When raising prosecutorial misconduct claims, the burden is on the defendant to show that the prosecutor’s remarks were so prejudicial that he was deprived of a fair trial and the entire proceedings were tainted; State v. Robinson, supra, 227 Conn. 746; and in the case of unpreserved claims, to show that they were blatantly egregious. State v. Peeler, 267 Conn. 611, 640, 841 A.2d 181 (2004). “Although certain remarks made by the prosecutor, from hindsight, may be deemed imprudent, such isolated and brief episodes as occurred here fail to implicate the denial of the defendant’s constitutional right to due process.” State v. Somerville, 214 Conn. 378, 393, 572 A.2d 944 (1990). Indeed, the infrequency of the misconduct limits its effect. See State v. Brown, 71 Conn. App. 121, 136, 800 A.2d 674, cert. denied, 261 Conn. 940, 808 A.2d 1133 (2002). The prosecutor’s remarks in the present case were infrequent and limited to closing argument. Moreover, the prejudicial effect of the one improper remark was mitigated by a curative instruction.

Accordingly, we conclude that the defendant has not satisfied his burden of showing that the prosecutor’s conduct was blatantly egregious or so infected the trial with unfairness as to make the resulting conviction a denial of due process.

The judgment is affirmed.

In this opinion the other judges concurred.

       Under Golding, “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40. The first two questions relate to whether a defendant’s claim is reviewable, and the last two relate to the substance of the actual review. State v. Jordan, 64 Conn. App. 143, 150, 781 A.2d 310 (2001).

       The court indicated that the instruction on constructive possession provided as to count one applied to the other counts. The instructions as to count one in relevant part were: “Count one, illegal possession of four ounces or more of a cannabis-type substance is defined in General Statutes § 21-279 (b) . . . and insofar as it pertains to this case . . . reads as follows ... a person who possesses or has under his control four ounces or more of a cannabis-type substance, except as authorized, shall be punished. Cannabis-type substance for the purposes of this case means the dried leaves of the marijuana plant. So, you must first ascertain whether the substance seized from the apartment in question was four ounces or more of a cannabis-type substance. On this subject, you will recall the testimony ... of the police officers and Laura Grestini, the state toxicology chemist.
      “If you find that the substance in question was four ounces or more of a cannabis-type substance, then the question for you to decide is whether the defendant knowingly had it in his possession. Keep in mind that the possession of the substance, and not ownership, is all that is required. Under the statute, the state does not have to prove that the defendant had actual possession of the substance; that is, that the defendant had the substance on his person or in his hands. It is sufficient that the state prove that the defendant had constructive possession. Constructive possession is established when it’s shown that the defendant exercised dominion and control over the cannabis-type substance and had actual knowledge of its presence. Remember then, constructive possession requires the showing of two things, control and knowledge. It may be exclusive or shared by others. The latter is known as joint possession. Constructive possession is not such a difficult concept to understand. For example, I have constructive possession of the books and other things in my office, even though they are not in my hands, because I have control over them, and I know what and where they are. I am sure that you can think of many things of which you have constructive possession right now, even though you do not have them with you.
      “Control is to be given its ordinary meaning; that is to say that the defendant is in control of the cannabis-type substance when it is shown that he exercises a direct control over it, and coupled with possession in the first element is the requirement of knowledge. The state must prove beyond a reasonable doubt that the defendant knowingly possessed the cannabis-type substance. A person acts knowingly with respect to possessing the substance when he is aware that he is in possession of it. The mere presence of the defendant at the house where the cannabis-type substance is found is not sufficient to support a finding of constructive possession. However, a person’s presence is a material and probative factor for the jury to consider along with all the other evidence.
      “The state has submitted evidence to show that the defendant had control over the premises where the cannabis-type substance was found. The evidence presented by the state included the testimony of the police, the testimony of the landlord and the various items of personal property seized from the apartment. Control of the premises gives rise to an inference of unlawful possession of the items found in the premises, and the mere access by others is not sufficient to defeat this inference. There is no evidence, and the defendant does not claim that he was authorized to possess four ounces of a cannabis-type substance.
      “To summarize, if you find that the state has proved beyond a reasonable doubt, one, that the substance in question consisted of four ounces or more of a cannabis-type substance and, two, that the defendant had constructive possession of it, you must find the defendant guilty in this count of the information. On the other hand, if you find that the state has failed to prove beyond a reasonable doubt either one or both of these elements, you must find the defendant not guilty of this count.”

       See footnote 1.

       The defendant, himself, concedes that the misstatement was inadvertent.

       Although the defendant also asserts a violation of our state constitution, he has provided no independent state constitutional analysis. We thus limit our review to the defendant’s federal constitutional claim. See State v. Merriam, 264 Conn. 617, 631 n.17, 835 A.2d 895 (2003).

       We note that police discretion is severely curtained under Connecticut law. See, e.g., Binette v. Sabo, 244 Conn. 23, 43, 710 A.2d 688 (1998) (“police officer acting unlawfully in the name of the state possesses a far greater capacity for harm than an individual trespasser”); State v. Marsala, 216 Conn. 150, 159-72, 579 A.2d 58 (1990) (en banc) (no good faith exception to warrant requirement under Connecticut law).

       Because the prejudicial impact outweighed the probative value of four seized items that related to the defendant’s prior incarceration, those items were ordered suppressed.

       Only one of the defendant’s prosecutorial misconduct claims was preserved properly. See part IV B. He requests review under State v. Golding, supra, 213 Conn. 239 — 10. Unpreserved claims of prosecutorial misconduct do not merit reversal unless they are blatantly egregious. See State v. Peeler, 267 Conn. 611, 640, 841 A.2d 181 (2004).

       See the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq.

       The defendant also claims that the prosecutor’s improper comment on his failure to testify diluted the state’s burden of proof. Because we conclude that the defendant has not established the impropriety of the comment, his claim is without merit.

       Those remarks include the fact that the defendant had fixed the broken door, that the landlord for the apartment, Colin Fletcher, had testified that the defendant was the only person to whom he had rented the apartment, that the defendant had put his belongings in drawers, that guns are expensive and dangerous and that the defendant had tried to flee because the police had seen him.

       The court instructed the jury in relevant part that “the attorneys, and in particular here; I’m focusing on the attorney for a defendant, is under no obligation to ask any particular questions of any witness. As a matter of fact, the attorney for the defendant is under no obligation whatsoever to ask any questions on cross-examination of any of the state’s witnesses. So, the fact that an attorney may not have asked a particular question is not an indication of what the answer might have been had the question been asked. ... I think that may be self-evident, but I think it’s an important point.”


source: Caselaw Access Project

author: SCHALLER, J.

license: Public Domain

text:
    SALVATORE RINALDI v. TOWN OF ENFIELD
    (AC 23834)
    Schaller, Bishop and McLachlan, Js.

      Argued January 13 —
    officially released April 20, 2004

      Lisa Banatoski Mehta, for the appellant-appellee (defendant).

      Gerald V. Davino II, for the appellee-appellant (plaintiff).
   Opinion

SCHALLER, J.

The defendant town of Enfield appeals from the decision of the workers’ compensation review board (board) reversing in part and affirming in part the decision of the workers’ compensation commissioner (commissioner). The plaintiff, Salvatore Rinaldi, cross appeals from the same decision. On appeal, the defendant claims that the board improperly failed to include the plaintiffs retirement pension and social security benefits in its General Statutes § 31-308a benefits calculation. The plaintiff, in his cross appeal, claims that the board improperly (1) applied the cap under General Statutes § 7-433b (b) to the combination of his § 31-308a benefits and retirement pension, and (2) determined that the defendant can make the plaintiff process his medical expenses through the defendant’s group medical insurance carrier. We affirm the decision of the board.

The facts and procedural history are undisputed. The plaintiff, a police officer employed by the defendant, suffered a heart attack on October 5, 1990. For the next two years, the plaintiff received temporary total disability payments pursuant to the Workers’ Compensation Act (act), General Statutes § 31-275 et seq. Those payments, supplemented by the payments received by the plaintiff under a collective bargaining agreement, provided the plaintiff with 100 percent of his regular pay. The defendant made those payments because it had chosen to self-insure its workers’ compensation liability.

On November 11, 1992, the plaintiff retired from the Enfield police department and began receiving his weekly retirement benefit in the amount of $541.34. The plaintiffs heart condition was a factor in his decision to retire as a police officer. The defendant continued to maintain the plaintiffs health insurance.

On January 29, 1993, the plaintiff reached maximum medical improvement with a 40 percent disability rating to his heart. As a result, the plaintiffs base rate for his specific indemnity benefit, determined pursuant to General Statutes §§ 7-433c and 31-308, was $421.10 per week for 321 weeks. The plaintiff received only $187.76 per week, however, because of the application of the cap imposed by § 7-433b (b). In a 1995 hearing, the commissioner found § 7-433b (b) to be inapplicable because it applied only to disability related retirements. The commissioner found that the plaintiff had opted for a regular retirement, which entitled him to specific indemnity benefits and full retirement pension without a cap. The commissioner then ordered the defendant to pay the full specific indemnity benefits and the retirement benefit, less amounts already paid, retroactive to January 29, 1993.

The plaintiff exhausted his specific indemnity benefit on February 6, 1999. The plaintiff had previously found work, on a part-time basis, as a judicial marshal. The plaintiffs income was supplemented by social security benefits and his retirement pension.

Beginning in 1998, the plaintiff sought discretionary benefits, available under § 31-308a, to bolster his income because of his diminished earning capacity. The plaintiff also sought to have the defendant reimburse him directly for medical expenses related to his claim rather than process the expenditures through the defendant’s health insurance carrier. At a hearing in 2001, a different commissioner held that the plaintiff was entitled to 156 weeks of § 31-308a benefits. The commissioner allowed the defendant to continue to process the plaintiffs medical expenditures through its group health insurance plan. Although prompted by the defendant, the commissioner declined to review the validity of the prior decision concerning the § 7-433b (b) cap because he held that the prior decision was the law of the case.

Both the defendant and the plaintiff appealed to the board from the commissioner’s decision. The plaintiff took issue with the commissioner’s decisions regarding the processing of medical expenses and the offset of the § 31-308a award by the plaintiffs regular pension benefits. The defendant took issue with the commissioner’s failure to include social security benefits in the setoff of the § 31-308a award. The board reversed the commissioner’s decision and held that under the doctrine of “the law of the case,” the “§ 7-433b (b) cap indeed applies to the combination of the [plaintiffs] pension and his § 31-308a benefit entitlement.” The board upheld the commissioner’s decision to allow the defendant to continue to have the plaintiff process his medical expenditures through the group health insurance rather than directly through the defendant. The board also upheld the commissioner’s decision to exclude social security benefits in the § 31-308a calculation of benefits. The board reversed the commissioner’s decision to include retirement benefits in the § 31-308a calculations.

I

THE DEFENDANT’S APPEAL

The defendant claims that the board improperly failed to include the plaintiffs retirement pension and social security benefits in its § 31-308a calculation. The defendant argues that “[a]s a matter of law, § 3 l-308a requires consideration of all the [plaintiffs] earnings, potential or otherwise, factoring in the statutory criteria of the nature and extent of the injury, training, education, experience, the availability of work based on the person’s physical condition and the individual’s age.” The defendant also argues that it is against public policy to exclude the plaintiffs retirement pension and social security benefits from the § 31-308a calculation.

A

The defendant argues that the language of § 31-308a dictates that retirement benefits and social security benefits should be considered when calculating an award of § 31-308a benefits. Our review of an agency’s interpretation of a statute depends on the legal history of the statute; if the proffered interpretation is a “ ‘time-tested agency interpretation of a statute’ ”; Marone v. Waterbury, 244 Conn. 1, 9, 707 A.2d 725 (1998); then we will afford the interpretation deference. If, however, the agency’s interpretation of the statute “has not previously been subject to judicial scrutiny . . . the agency is not entitled to judicial deference”; id., 10; and we engage in a plenary review of the interpretation. Esposito v. Waldbaum’s, 78 Conn. App. 472, 475, 827 A.2d 747 (2003). As the board acknowledged in its decision, that aspect of the statute has not been interpreted before, and we, therefore, afford plenary review to the board’s interpretation.

“The process of statutory interpretation involves a reasoned search for the intention of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutoiy language as applied to the facts of [the] case, including the question of whether the language actually does apply. In seeking to determine that meaning, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter. . . . State v. Courchesne, 262 Conn. 537, 577, 816 A.2d 562 (2003) (en banc). The language of the statute is the most important consideration in determining the meaning of the statute. Id. In addition, the legislature has stated that courts should first look to the plain meaning of the words of the statute when interpreting the statute’s meaning. Public Acts 2003, No. 03-154. In light of those principles, we turn to the language of the statute.” (Internal quotation marks omitted.) State v. Groppi, 81 Conn. App. 310, 317-18, 840 A.2d 42 (2004).

Section 3l-308a provides in relevant part: “(a) In addition to the compensation benefits provided by section 31-308 . . . the commissioner . . . may award additional compensation benefits for such partial permanent disability . . . equal to seventy-five per cent of the difference between the wages currently earned by an employee in a position comparable to the position held by such injured employee prior to his injury . . . and the weekly amount which such employee will probably be able to earn thereafter ... to be determined by the commissioner based upon the nature and extent of the injury, the training, education and experience of the employee, the availability of work for persons with such physical condition and at the employee’s age . . . . (b) . . . [Additional benefits provided under this section shall be available only when the nature of the injury and its effect on the earning capacity of an employee warrant additional compensation.”

In interpreting that statute, the board focused on the word “earn” and stated that “a [retirement] pension paid based upon the claimant’s years of service with an employer neither reflects the claimant’s earning capacity, nor does it constitute an attempt by an employer to compensate a claimant for his inability to continue earning wages due to an injury. Instead, it is payable pursuant to a separate contractual provision that is wholly unrelated to the amount a claimant is currently able to earn. Such longevity pensions are generally based upon the years of service that a retired employee has devoted to a particular employer, and they remain payable even if that individual decides to go out and get another job, regardless of how much it might pay.” Regarding social security benefits, the board stated that “old-age insurance benefits do not reflect either the amount a claimant is able to earn, or an attempt by the federal government to replenish lost wages due to a work-related disability. Rather, they are directly tied to the amount of money that one has contributed to Social Security throughout one’s working life, and are paid once an individual has reached the statutory age of retirement, and has left the work force.”

We agree with the board’s interpretation of the word “earn.” The language of the statute justifies the exclusion of retirement and social security benefits from the calculation of a § 31-308a award. The statute focuses on the injured party’s training, injuries and experience; in essence, the ability of the injured party to generate money in the future, not what funds the injured party previously has secured through work. For example, the statute does not mention that the commissioner, when conducting an analysis under the statute, should look to the injured party’s personal savings or private retirement plans.

In assailing the board’s conclusions, the defendant relies heavily on Iannarone v. State, No. 4138, CRB-7-99-10 (June 15, 2001). In Iannarone, the board held that a retirement disability pension should be included in the § 31-308a calculations. Id. Iannarone is distinguishable from the present case, however, because the plaintiff is receiving a retirement pension, rather than a disability pension.

The defendant also relies on Carriero v. Naugatuck, 243 Conn. 747, 707 A.2d 706 (1998). In Carriero, our Supreme Court held that the cap embodied in § 7-443b was applicable to an award under § 7-443c. The court also held that retirement benefits should be included in the calculation under the cap. Id., 757. Carriero is distinguishable from the present case, however, because the underlying statutes in Carriero and those in the present case are quite different. As our Supreme Court stated, “§ 7-433c payments constitute special compensation, or even an outright bonus, to qualifying policemen and firemen. . . . [T]he outright bonus provided by the statute is that the claimant is not required to prove that the heart disease is causally connected to his employment, which he would ordinarily have to establish in order to receive benefits pursuant to the Workers’ Compensation Act.” (Citation omitted; internal quotation marks omitted.) Id., 754-55. In contrast, although § 31-308a could be characterized as a bonus, it is completely discretionary. Thus, Carriero is not controlling. We agree with the board’s position that disability retirement pensions are different from regular retirement pensions and, as such, may be treated differently in the context of § 31-308a.

B

The defendant also argues that the board’s interpretation of the statute is untenable because it violates public policy, specifically the policy underlying the act. The defendant asserts that the policy prohibiting double recoveiy is violated by the board’s decision because the plaintiff, at some points, received more than a working police officer.

Even if we assume arguendo the validity of the defendant’s arguments, the board, in its decision, has prevented the accrual of a windfall to the plaintiff. The board’s decision explicitly caps the plaintiffs recovery by importing the limitation of § 7-433b (b) to a recovery pursuant to § 31-308a. With the cap, there is no potential for a windfall. The board’s decision does not address the issue of injured parties, other than fire and police personnel, seeking benefits under § 31-308a. Although the defendant’s arguments may be effective in future situations not involving fire or police personnel, the arguments do not apply here because § 7-433b (b) caps recovery by police personnel. Jurisprudential considerations require that we address the case before us and refrain from ruling on hypothetical situations. See generally State v. McElveen, 261 Conn. 198, 204-205, 802 A.2d 74 (2002) (“courts are called upon to determine existing controversies, and . . . may not be used as a vehicle to obtain advisory judicial opinions on points of law”).

II

CROSS APPEAL

The plaintiff claims that the board improperly applied the § 7-433b (b) cap to the combination of his § 31-308a benefits and retirement pension. The plaintiff argues that the board failed to apply the doctrine of collateral estoppel and the “date of injury” rule when it determined that § 7-433b (b) applied.

A

The plaintiff argues that the board improperly failed to apply the doctrine of collateral estoppel when it determined that the § 7-433b (b) cap applied to his § 31-308a benefits. The defendant’s argument fails, however, because the issue of whether the § 7-433b (b) cap applies to § 31-308a benefits was not actually litigated in the prior proceeding.

“Whether the [board] properly applied the doctrine of collateral estoppel is a question of law for which our review is plenary. . . . The fundamental principles underlying the doctrine are well established. Collateral estoppel, or issue preclusion, is that aspect of res judicata which prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action between the same parties upon a different claim. . . . We must, therefore, determine whether the issues raised . . . were actually litigated and necessarily determined on previous occasions.” (Citation omitted; internal quotation marks omitted.) Bouchard v. Sundberg, 80 Conn. App. 180, 187, 834 A.2d 744 (2003).

Collateral estoppel is- inappropriate in this case for two reasons. First, the underlying statutes were different. At the 1995 hearing, the commissioner was asked to decide whether the limitation embodied in § 7-433b (b) applied to the specific benefits that the plaintiff was entitled to under §§ 31-308 and 7-433c. In contrast, at the 2001 hearing, the issue before the commissioner was whether the § 7-433b (b) cap applied to discretionary benefits granted under § 31-308a. The statutes, §§31-308 and 31-308a, are different in terms of their application and underlying goals. Second, the issues at the two hearings were different. At the 1995 hearing, the issue was one of fact — whether the decision to retire was caused by the disability. At the 2001 hearing, the issue was one of law — whether § 7-443b (b) should apply to § 31-308a benefits. It is axiomatic that collateral estop-pel, or issue preclusion, does not apply when the issue has not been raised or decided previously. The board correctly refused to apply the doctrine of collateral estoppel.

B

The plaintiff also argues that the board failed to apply the “date of injury” rule when it determined that § 7-433b (b) applied. The plaintiff did not advance that argument before the board. This court has stated that “[t]he theory upon which a case is tried in the trial court cannot be changed on review, and an issue not presented to or considered by the trial court cannot be raised for the first time on review. Moreover, an appellate court should not consider different theories or new questions if proof might have been offered to refute or overcome them had they been presented at trial.” Ritcher v. Childers, 2 Conn. App. 315, 318, 478 A.2d 613 (1984); see also Menon v. Dux, 81 Conn. App. 167, 171, 838 A.2d 1038 (2004); Strouth v. Pools by Murphy & Sons, Inc., 79 Conn. App. 55, 62, 829 A.2d 102 (2003). A review of the record indicates that the plaintiff did not present this theory of the case to the commissioner or the board. “For this court to now consider [the plaintiffs] claim on the basis of a specific legal ground not raised during trial would amount to trial by ambuscade, unfair both to the [board] and to the opposing party.” (Internal quotation marks omitted.) Menon v. Dux, supra, 171.

C

The plaintiff also claims that the board improperly determined that the defendant can make the plaintiff process his medical expenses through the defendant’s group medical insurance carrier. The plaintiff argues that the language of the act requires the employer to pay directly for the employee’s medical expenses related to his claim for benefits under § 7-443c.

As that claim presents pure questions of law, our review is plenary. See Schiano v. Bliss Exterminating Co., 260 Conn. 21, 33-34, 792 A.2d 835 (2002). The board held that “[u]nder the binding precedent of Plainville [v. Travelers Indemnity Co., 178 Conn. 664, 425 A.2d 131 (1979)], § 31-284’s mandate that an employer either ‘furnish . . . satisfactory proof of his solvency and financial ability to pay directly to injured employees or other beneficiaries compensation provided by this chapter [or] insure his full liability under this chapter' does not implicate benefits based upon conditions that would not qualify as compensable under chapter 568 [of the General Statutes], such as § 7-433c compensation. . . . Thus, some alternate means of paying § 7-433c benefits may be devised by the town, including the use of a group health insurance policy to process medical bills.” (Emphasis in original.)

The plaintiff references a bevy of statutes from the act, all utilizing the word “employer,” and argues that the use of that word requires the “employer” to provide services for the injured employee. The plaintiff ignores, however, that many of the statutes refer to the employer or the employer’s insurer. See General Statutes §§31-294d and 38a-470. Thus, the plaintiffs contention that the act forces the employer to be the exclusive processor of claims is not supported by the language of the act.

As set forth in part IA of this opinion, the language of the statute is the most important factor in determining what the statute means. Because the language of § 7-433c makes no reference to that issue, it is not helpful. The legislative history, however, is useful.

“During the debate on the floor of the House of Representatives, Representative Robert D. King raised the following question:

“ ‘Mr. Speaker, one question, through you to either Rep. Stevens or Rep. Badolato, in the wisdom of the Supreme Court, as I understand the decision, the particular member of the department is not covered by workmen’s compensation and, as a result, this bill would, in effect, shift the burden to the town, to the municipality. Now, my question, very briefly, is this — In what manner is the town compensated for this potential liability? Does the town, in turn, insure or does it come out of the town’s general fund or is there some other method of compensating for any payments that will have to be made under the bill?’

“Representative Gerald F. Stevens, who introduced the bill in the House, responded as follows:

“ ‘That would be the determination of the particular municipality who could either choose to insure against this particular risk or pay for it out of the general revenues of the municipality if they chose to be a self-insurer for the purposes of this legislation.’ 14 H.R. Proc., Pt. 8, 1971 Sess., pp. 3526-27.” Plainville v. Travelers Indemnity Co., supra, 178 Conn. 674 n.3. Those statements support the board’s conclusion that the defendant may choose to use an insurance company to manage the risk generated by the statute. Accordingly, the board correctly concluded that as long as the defendant continues to repay any expenses that are not reimbursed by the insurance company, the defendant may use an insurance company to process the claims.

The decision of the workers’ compensation review board is affirmed.

In this opinion the other judges concurred.

       The plaintiff was eligible only for the supplemental payments for two years under the terms of the collective bargaining agreement.

       The defendant argues that for tax purposes, social security benefits and retirement benefits are partially taxable as gross income. From that, the defendant argues that such benefits are deferred compensation and, thus, are “earnings.” Even if such benefits were considered “earnings” in the realm of tax law, we do not necessarily think that we, or the board, are precluded from interpreting the word differently in the context of workers’ compensation law.

       Although not briefed separately, the plaintiff also appears to argue that General Statutes § 31-315 prevents the board from opening the 1995 judgment. Although the plaintiff is correct in arguing that § 31-315 would limit the board’s ability to modify the judgment from the 1995 hearing; see Marone v. Waterbury, supra, 244 Conn. 15; the relevant judgment at issue was the judgment from the 2001 hearing, which was appealed to the board. The plaintiff seeks to frame that as the opening of the 1995 judgment, but that is incorrect, as the cap under § 7-433b (b) was applied to the plaintiffs benefits under § 31-308a, which were a feature of the 2001 judgment, not the plaintiffs benefits under §§ 7-443c and 31-308, which were at issue in the 1995 judgment. As such, § 31-315 is inapplicable.

       “The date of injury rule is a rule of statutory construction that establishes a presumption that new workers’ compensation legislation affecting rights and obligations as between the parties, and not specifying otherwise, appliefs] only to those persons who received injuries after the legislation became effective, and not to those injured previously.” (Internal quotation marks omitted.) Esposito v. Waldbaum’s, Inc., supra, 78 Conn. App. 474 n.3.


author: DiPENTIMA, J.

text:
    DAVID MIRAULT v. COMMISSIONER OF CORRECTION
    (AC 23986)
    Schaller, West and DiPentima, Js.
    Argued January 12 —
    officially released April 20, 2004

      Kalish R Raphael, assistant public defender, for the appellant (petitioner).

      AnnE. Lynch, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (respondent).
   Opinion

DiPENTIMA, J.

The petitioner, David Mirault, appeals from the judgment of the habeas court dismissing his petition for a writ of habeas corpus. On appeal, the petitioner claims that the court improperly (1) concluded that the respondent commissioner of correction correctly applied the petitioner’s credit for presentence confinement in calculating his discharge date, and that the court thereby violated the equal protection rights afforded him under the federal and state constitutions, and (2) ordered that the amount of presentence confinement credit earned on a fifteen year sentence be reduced by eight days, thereby lengthening the sentence by eight days. We affirm in part and reverse in part the judgment of the habeas court.

The following facts and procedural histoiy are relevant to the petitioner’s appeal. On April 26, 1993, the petitioner was arraigned on docket numbers CR93-439055 (docket one) and CR93-439054 (docket two) and, unable to post bond, held in lieu of bond. On May 11, 1993, he was arraigned on docket number CR-93-439809 (docket three) and held in lieu of bond. On June 22, 1993, the petitioner was charged with violation of probation pursuant to General Statutes § 53a-32, arraigned on docket number CR92-203769 (docket four) and held in lieu of bond. On July 21, 1993, he pleaded guilty to violation of probation as to docket four and was sentenced to a term of six months imprisonment. At that time, the petitioner was given twenty-one days of presentence credit for the twenty-nine day period between June 22, 1993, the day he was charged with violation of probation, and July 21, 1993, the day he began his sentence on the charge.

On November 15,1993, the petitioner was discharged from the six month sentence imposed in docket four and returned to pretrial status on dockets one, two and three. On June 17, 1994, he was sentenced on the remaining dockets as follows: docket one, a total effective sentence of twenty-two years, execution suspended after fifteen years, and five years probation; docket two, a total effective sentence of fifteen years; and docket three, a total effective sentence of fifteen years. Each of those sentences was ordered to be served concurrently, resulting in an effective sentence of twenty-two years, execution suspended after fifteen years, and five years probation. In calculating the petitioner’s sentence, the respondent applied 263 days of jail time credit against that sentence. The respondent did not apply twenty-one days of presentence confinement credit, which reflected confinement from June 22 to July 21, 1993, against that sentence because the respondent had applied the twenty-one days of credit to docket four.

On October 14, 1998, the petitioner filed a petition for a writ of habeas coipus, arguing that the respondent improperly had failed to apply an additional presen-tence credit of twenty-one days to reduce his sentence on docket three. Specifically, the petitioner claimed that pursuant to General Statutes § 18-98d, he had earned a total of 284 days of presentence confinement credit on docket three, having served in pretrial detention from May 11 to July 21, 1993, and from November 16, 1993, to June 16, 1994.

The court dismissed the petition, concluding that the respondent correctly had applied § 18-98d to the petitioner’s dockets. The court further concluded that “the petitioner’s term of presentence confinement on docket four was twenty-nine days, and not twenty-one. The result of this latter conclusion is that the 264 days of presentence confinement credit earned on docket three must be reduced by eight days, which will extend the petitioner’s discharge day accordingly.” The petition for certification was filed on January 27, 2003, and granted by the court on February 5, 2003. This appeal followed.

I

The petitioner first claims that the court improperly concluded that the respondent correctly applied the petitioner’s credit for presentence confinement in calculating his discharge date and that the court thereby violated the equal protection rights afforded him under the federal and state constitutions.

There are no factual issues in dispute. Because the issue is whether the respondent properly calculated the petitioner’s presentence confinement credit to be applied toward his sentence, the conclusion reached by the court presents a question of law that is subject to plenary review. See Thorpe v. Commissioner of Correction, 73 Conn. App. 773, 776-77, 809 A.2d 1126 (2002).

Our resolution of that issue is controlled by our decision in King v. Commissioner of Correction, 80 Conn. App. 580, 836 A.2d 466 (2003); see also Johnson v. Commissioner of Correction, 80 Conn. App. 574, 836 A.2d 453 (2003). In King, we rejected the same argument and interpretation of § 18-98d (a), and held that “[e]ach day of presentence confinement, regardless of the number of informations under which such confinement accrues, should be counted only once and credited to only one day of sentenced confinement. Once a day of presentence confinement has been credited to reduce the term of sentenced confinement under one information, it cannot be credited again to reduce the term of sentenced confinement under another information.” King v. Commissioner of Correction, supra, 587. Here, the respondent applied credit for twenty-one days of presentence confinement to the petitioner’s confinement under docket four. The petitioner’s sentence for violation of probation was reduced and he returned to pretrial status.

As the petitioner in King had claimed, the petitioner here argues that the respondent’s application of the credit violated the petitioner’s right to equal protection under both the federal and state constitutions. He argues that he was disadvantaged by reason of his financial status because he was unable to post bond and that he was forced to serve more time than an individual who was able to post bond. The respondent’s application of the credit in this case did not unfairly disadvantage the petitioner because of his inability to post bond. The petitioner indeed received credit for each day that he served in lieu of bond. See id., 586-87. His presen-tence confinement did not cause him to spend any more time in custody, and he therefore is not entitled to spend any less time in custody. To hold otherwise effectively would give the petitioner the benefit of reducing his sentence for having been held in presentence confinement under more than one information. See Johnson v. Commissioner of Correction, supra, 80 Conn. App. 580. In accordance with the reasoning in King, we con-elude that the court properly dismissed the petitioner’s claim.

II

The petitioner next claims that the court improperly ordered that the amount of presentence confinement credit earned on docket three be reduced by eight days, thereby lengthening his sentence by eight days. The petitioner claims that because neither the petitioner nor the respondent raised that issue before the habeas court, the court acted without giving the petitioner notice that would afford him an adequate opportunity to address the issue. We agree with the petitioner.

Our Supreme Court has held that “it is a principle of natural justice of universal obligation, that before the rights of an individual be bound by a judicial sentence he shall have notice ... of the proceedings against him. . . . Fundamental tenets of due process, moreover, require that all persons directly concerned in the result of an adjudication be given reasonable notice and the opportunity to present their claims or defenses.” (Citations omitted; internal quotation marks omitted.) Kron v. Thelen, 178 Conn. 189, 193, 423 A.2d 857 (1979).

The court correctly noted that the respondent incorrectly had calculated the petitioner’s confinement credit. Because the petitioner was not given notice and an opportunity to address that issue, however, the extension of the discharge date cannot stand.

The judgment is reversed only with respect to the extension of the petitioner’s discharge date by eight days and the case is remanded with direction to vacate that portion of the judgment. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       The petitioner relies on Payton v. Albert, 209 Conn. 23, 547 A.2d 1 (1988) (en banc), overruled in part on other grounds, Rivera v. Commissioner of Correction, 254 Conn. 214, 255 n.44, 756 A.2d 1264 (2000), and Valle v. Commissioner of Correction, 45 Conn. App. 566, 696 A.2d 1280 (1997), rev’d on other grounds, 244 Conn. 634, 711 A.2d 722 (1998), for the proposition that he is entitled to have presentence confinement credit earned simultaneously on multiple docket numbers applied to each docket number under which he is held in lieu of bond. Our analysis in King, however, shows that such reliance is misplaced. See King v. Commissioner of Correction, supra, 80 Conn. App. 585-86 (analyzing Payton and reiterating that once credit has been fully utilized as to one sentence, it is not available for application to another sentence).

       The respondent argues that the petitioner was obligated to file a motion for articulation for review of that order. Although the petitioner filed a motion to correct, and that motion was denied, no articulation of the order is necessary for our review.


author: FLYNN, J.

text:
    MICHAEL G. PAGETT v. WESTPORT PRECISION, INC.
    (AC 23304)
    Flynn, McLachlan and Hennessy, Js.

      Argued January 13 —
    officially released April 20, 2004

      Paul L. McCullough, for the appellant-appellee (defendant).

      Jonalhan D. Elliott, with whom, on the brief, was Sabato P. Piano, for the appellee-appellant (plaintiff).
   Opinion

FLYNN, J.

The defendant, Westport Precision, Inc., appeals from the judgment of the trial court ordering the issuance of a writ of mandamus to the plaintiff, Michael G. Pagett, pursuant to General Statutes § 33-946 (b) and (c). The order required the defendant to allow the plaintiff, a minority shareholder who was a former employee currently engaged in litigation against the defendant, to inspect and to copy certain corporate financial records and tax returns. On appeal, the defendant argues that the court improperly granted the writ of mandamus after incorrectly finding that the plaintiff (1) had established that his demand was made in good faith and for a proper purpose, (2) had stated his purpose with reasonable particularity and (3) had proven that the records requested were directly connected with his purpose.

On cross appeal, the plaintiff appeals from the judgment denying him attorney’s fees pursuant to General Statutes § 33-948 (c). The plaintiff argues that the court improperly denied his petition because there was no evidence that the defendant had a good faith reason for denying the plaintiff access to the requested records.

We affirm the court’s granting of the writ of mandamus because we have determined that the plaintiff met the requirements of § 33-946 (b) and (c). We reverse the court’s ruling on the plaintiffs cross appeal regarding attorney’s fees and remand the matter to the court with direction to award attorney’s fees to the plaintiff.

I

We first address the issue of whether the writ of mandamus was properly granted. The defendant claims that the plaintiff did not meet the requirements of § 33-946 (c), namely, that the plaintiff (1) had not established that his demand was made in good faith and for a proper purpose, (2) had not stated his purpose with reasonable particularity and (3) failed to prove that the records requested were directly connected with his purpose.

“When the factual basis of the court’s decision is challenged, [we] must determine whether the facts are supported by the evidence or whether they are clearly erroneous. ... In such cases, the trier’s determination of fact will be disturbed only in the clearest of circumstances, where its conclusion could not reasonably be reached.” (Internal quotation marks omitted.) McMa-nus v. Roggi, 78 Conn. App. 288, 294, 826 A.2d 1275 (2003).

The defendant’s claims turn in part on our construction of § 33-946 (b) and (c). “Issues of statutory construction raise questions of law, over which we exercise plenary review.” Celentano v. Oaks Condominium Assn., 265 Conn. 579, 588, 830 A.2d 164 (2003). “When we construe a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter. . . . Furthermore, [w]e presume that laws are enacted in view of existing relevant statutes . . . because the legislature is presumed to have created a consistent body of law. . . . [I]n the absence of guidance from the language of the statute or the legislative history, we look to common law principles .... It is assumed that all legislation is interpreted in light of the common law at the time of enactment. . . .

“We construe each sentence, clause or phrase to have a purpose behind it. . . . In addition, we presume that the legislature intends sensible results from the statutes it enacts. . . . Therefore, we read each statute in a manner that will not thwart its intended purpose or lead to absurd results. . . . Words in a statute must be given their plain and ordinary meaning . . . unless the context indicates that a different meaning was intended. ... No word or phrase in a statute is to be rendered mere surplusage. ... In applying those principles, we keep in mind that the legislature is presumed to have intended a reasonable, just and constitutional result. ... In construing a statute that is remedial, we do so liberally in favor of those whom the legislature intended to benefit.” (Citations omitted; internal quotation marks omitted.) Hibner v. Bruening, 78 Conn. App. 456, 458-59, 828 A.2d 150 (2003).

We first look to the words of the statute. Section 33-946 (b) provides in relevant part: “A shareholder of a corporation is entitled to inspect and copy, during regular business hours at a reasonable location specified by the corporation, any of the following records of the corporation if the shareholder meets the requirements of subsection (c) of this section and gives the corporation written notice of his demand at least five business days before the date on which he wishes to inspect and copy . . . .” Subsection (b) lists, inter alia, “accounting records” among the type of records that may be inspected. General Statutes § 33-946 (b).

The plain meaning of what, when and where records may be inspected is clear from the statutory language. Five days after filing a written request, at a place the corporation designates, a shareholder is entitled to inspect accounting records. The plain and ordinary meaning of these terms is clear, and the parties have not disputed their meaning.

Subsection (b) conditions this entitlement to inspection on meeting “the requirements of subsection (c) of this section . . . .” General Statutes § 33-946 (b). The parties disagree as to whether the plaintiff met the requirements of subsection (c). Section 33-946 (c) provides that “[a] shareholder may inspect and copy the records described in subsection (b) of this section only if: (1) His demand is made in good faith and for a proper purpose; (2) he describes with reasonable particularity his purpose and the records he desires to inspect; and (3) the records are directly connected with his purpose.” When, as in this case, a shareholder believes that he meets this test and wrongly has been denied access to corporation documents, he may apply to the Superior Court for a writ of mandamus. See MMI Investments, LLC v. Eastern Co., 45 Conn. Sup. 101, 108, 701 A.2d 50 (1996).

The defendant challenges whether the plaintiff has met these three statutory prongs. No statutory definition of the required “good faith,” “proper purpose,” “reasonable particularity” in the description of that purpose or “direct connection” with that purpose is incorporated within the language of § 33-946 (c). Nor is the meaning plainly evident from the language used. Nor has our Supreme Court or this court previously construed these terms.

In construing this language, we consider the statute’s remedial purpose and give it a liberal construction. See Hibner v. Bruening, supra, 78 Conn. App. 459. Statutes providing for inspection by shareholders should be liberally construed in favor of shareholders. See Dines v. Harris, 88 Colo. 22, 34, 291 P. 1024 (1930).

We are persuaded by authority from sister states that have construed similar statutes and concluded that a shareholder’s status as an owner is the spring from which statutory inspection rights flow. “The basis of a shareholder’s right to inspect the books and records of a corporation is his ownership of the corporate property and assets through his ownership of shares; as an owner, he has the right to inform himself as to the management of the corporate property by directors and officers who are his trustees in direct charge of the property.” Tucson Gas & Electric Co. v. Schantz, 5 Ariz. App. 511, 513, 428 P.2d 686 (1967). A corporation is not an entity that can be separated from its members, for in reality those running the corporation “are merely the agents of the [shareholders] . . . .” Cooke v. Outland, 265 N.C. 601, 610, 144 S.E.2d 835 (1965); see also Bank of Giles County v. Mason, 199 Va. 176, 181, 98 S.E.2d 905 (1957). Furthermore, “[a shareholder] in a corporation has, in the very nature of things and upon principles of equity, good faith, and fair dealing, the right to know how the affairs of the company are conducted and whether the capital of which he has contributed a share is being prudently and profitably employed.” (Internal quotation marks omitted.) State ex rel. Fussell v. McLendon, 109 So. 2d 783, 786 (Fla. App. 1959).

A

Section 33-946 (c) requires that a shareholder’s demand to inspect and to copy the records must be made in good faith and for a proper purpose. We first turn to the defendant’s contention that the court incorrectly found that this requirement had been met. We disagree.

Our case law has defined good faith in other contexts and circumstances. Good faith has been defined as honesty of purpose, lack of intent to defraud and honest intent to refrain from taking unconscientious advantage of another. Snyder v. Reshenk, 131 Conn. 252, 257, 38 A.2d 803 (1944). Applying this definition to the record before us, we conclude that the court’s implicit finding of good faith was not clearly erroneous.

Section 33-946 (c) does not define what is meant by “proper purpose.” At common law, a proper purpose has been held to be a puipose that is “for a lawful and reasonable purpose germane to [the plaintiffs] status as a shareholder . . . .” (Internal quotation marks omitted.) Cooke v. Outland, supra, 265 N.C. 614. A purpose will be fouuud to be improper if it is “for speculative or trading purposes or for any purpose inimical to the interest of the corporation or of its shareholders.” (Internal quotation marks omitted.) MMI Investments, LLC v. Eastern Co., supra, 45 Conn. Sup. 109; see P. Karpel, “Corporations — Shareholders’ Right to Inspect Stock List — What Constitutes Proper Purpose: DeRosa v. Terry Steam Turbine Company, 26 Conn. Supp. 131, 214 A.2d 684 (Super. Ct. 1965),” 40 Conn. B.J. 513, 513-21 (1966). The court found that the plaintiff had “described his purpose with reasonable particularity” after finding that he was a 20 percent shareholder who had been prevented from having certain knowledge that he was entitled to have.

The Model Business Corporation Act (model act) includes a detailed provision with respect to the right of shareholders to inspect the relevant corporate books of records and accounts and sheds light on our analysis. Section 33-946 (c) of our shareholder inspection statute follows the language of § 16.02 (c) of the model act. The model act reads: “(c) A shareholder may inspect and copy the records described in subsection (b) only if: (1) his demand is made in good faith and for a proper purpose; (2) he describes with reasonable particularity his purpose and the records he desires to inspect; and (3) the records are directly connected with his purpose.” Model Business Corporation Act (American Bar Association 2002) § 16.02 (c).

The official comment to the model act, regarding § 16.02 (b) and (c), provides in relevant part: “A proper purpose means a purpose that is reasonably relevant to the demanding shareholder’s interest as a shareholder. Some statutes do not use the phrase ‘proper purpose’; the Model Act continues to use it because it is traditional and well understood language defining the scope of the shareholder’s right of inspection and its use ensures that the veiy substantial case law that has developed under it will continue to be applicable under the revised Act. As a practical matter, a shareholder who alleges a purpose in general terms, such as a desire to determine the value of his shares, to communicate with fellow shareholders, or to determine whether improper transactions have occurred, has been held to allege a proper purpose.” (Internal quotation marks omitted.) Id., p. 16-19.

In this case, the plaintiff was a 20 percent minority shareholder in a closely held corporation. He testified that he did not have any documents in his possession that would have permitted him to value his shares and had not received any financial documentation since the termination of his employment with the defendant. By letter dated November 24, 2000, the plaintiff requested three categories of financial records. First, “[a]ll annual or quarterly financial statements of [the defendant] for the years in which I have been a shareholder of the corporation (1995 through the present).” Second, “[a]ll state and federal income tax returns of [the defendant], including all subparts thereof, for the years 1995 though the present.” Third, “[a]ll accounting records of [the defendant] for the years 1995 through the present, including but not limited to all ledgers, balance sheets, profit/loss statements, revenue statements, corporate bank account statements, or other recordings or entries concerning any distributions or payments of any manner of corporate monies.” The plaintiff affirmed at trial that his request was made in an effort to apprise himself properly of the value of his shares in the corporation through information regarding the financial management and standing of the defendant.

Joseph T. Greco, the defendant’s president and majority shareholder, denied the plaintiffs first request by letter because of pending litigation between the defendant and the plaintiff. That denial prompted another written demand by the plaintiff through his attorney. The defendant again denied inspection and copying rights through a letter from its attorney. However, it did supply a certificate of incorporation, a document containing the names and addresses of the defendant’s officers and directors and two balance sheets prepared by its accountant for the years 1998-1999 and 1999-2000.

Because we have never decided if valuing stock is a proper purpose under § 33-946 (c), it is helpful to our analysis to review the determinations of other jurisdictions. The Supreme Court of Vermont interpreted an inspection statute similar to Connecticut’s and held that a “proper purpose” justifying a shareholder’s statutory right to inspect records must be reasonably relevant to one’s interests as a shareholder and may include the valuation of shares, ascertaining the possibility of mismanagement and determining the performance and condition of the company. See Towle v. Robinson Springs Corp., 168 Vt. 226, 228, 719 A.2d 880 (1998). The Illinois Appellate Court, interpreting § 45 of the Business Corporation Act, which provides that a shareholder has a right to inspect “for a proper purpose,” held that a need to value stock arises when there is no ready market, such as when the stock is of a closely held corporation. Winger v. Richards-Wilcox Mfg. Co., 33 Ill. App. 2d 115, 126-127, 178 N.E.2d 659 (1961). One of the most difficult determinations of stock value is for stock in which there is little or no public market, especially when the value of a closely held corporation is being endangered because of a dispute among its owners. See 2 Am. Jur. 2d Proof of Facts § 1 (1974).

The defendant does not dispute that valuing stock is a proper purpose. At oral argument, the defendant argued that a proper purpose is a multilayered concept, and, thus, the plaintiff must state a reason why he wants to value his stock. We do not agree with this interpretation.

If a stated purpose is not unreasonable or improper on its face, a corporation is not justified in refusing the request for inspection. Lake v. Buckeye Steel Castings Co., 2 Ohio St. 2d 101, 105, 206 N.E.2d 566 (1965). Furthermore, if the primary purpose is reasonably related to the individual’s status as a shareholder, a single valid purpose is sufficient to satisfy a statutory requirement of a proper purpose. CM & M Group, Inc. v. Carroll, 453 A.2d 788, 792 (Del. 1982); Weigel v. O'Connor, 57 Ill. App. 3d 1017, 1027, 373 N.E.2d 421 (1978); see also Thomas & Betts Corp. v. Leviton Mfg. Co., 681 A.2d 1026, 1034-35 (Del. 1996) (although plaintiffs were motivated by improper purpose of gaining leverage in acquiring defendant corporation and court denied inspection as to two other purposes, limited inspection for purpose of valuing its shares was proper).

Section 33-946 (c) provides that the shareholder’s demand must be “made in good faith and for a proper purpose . . . .” Because we conclude that valuing stock in this particular situation is a proper purpose, the shareholder does not have to state further the reason why he wants to value his stock.

“The purpose of [a statute such as this], like that of the common law right, is to protect small and minority shareholders against the mismanagement and faithlessness of their agents and officers, by furnishing the mode and opportunity to ascertain, establish, and maintain their rights.” In re Bank of Heflin v. Miles, 294 Ala. 462, 466, 318 So. 2d 697 (1975). In light of the defendant’s sale of its assets at the time of trial and the fact that this is a closely held corporation in which it would be difficult to determine stock value, it is logical that a shareholder would desire to inspect the defendant’s records to determine the value of his stock. The plaintiff claimed that he was fired from an executive position for complaining about smoking in the workplace, but the defendant claimed that he was fired for self-dealing in the products of the defendant to its disadvantage. Although the parties are involved in separate litigation, each against the other, there is no evidence of a bad faith reason underlying the plaintiffs request for this financial documentation. Therefore, the court’s implicit finding that the plaintiff had made his request in good faith and its express finding that it was for a proper purpose were not clearly erroneous.

B

Section 33-946 (c) also requires that a shareholder must both state his purpose and describe the documents requested with reasonable particularity. The parties are not in dispute about whether the plaintiff sufficiently particularized which records he sought to inspect, but they do contest whether the purpose was sufficiently detailed. We have never defined reasonable particularity in a situation such as this and look to how other jurisdictions have interpreted statutory language similar to that of § 33-946 (b) and (c). In Parsons v. Jefferson-Pilot Corp., 333 N.C. 420, 429, 426 S.E.2d 685 (1993), the North Carolina Supreme Court held that “[w]hether a shareholder has described his purpose or the desired records with reasonable particularity necessarily depends upon the facts and circumstances of each case.”

“[I]n the absence of . . . statutory . . . guidance, [the court] may appropriately look to the meaning of the [word] as commonly expressed in the law and in dictionaries.” (Internal quotation marks omitted.) Hibner v. Bruening, supra, 78 Conn. App. 460-61. “Particularity” is defined in pertinent part as “a minute detail,” “an individual characteristic,” “the quality or state of being particular as distinguished from universal” and “attentiveness to detail.” Webster’s Ninth New Collegiate Dictionary (1988). Because “particularity” is modified by the adjective “reasonable,” we conclude that the particularity requirement directs a shareholder to express his purpose with sufficient particularity so that the reason for the inspection can be ascertained by the corporation, but that minute detail of purpose is not required.

In this case, the plaintiff stated that his purpose “was to inform [the plaintiff] of the financial management and standing of [the defendant] so that he could be properly apprised of the value of his shares in the corporation.” A person of ordinary intelligence could understand the plaintiffs purpose in requesting access to the financial documents. See Parsons v. Jefferson-Pilot Corp., supra, 333 N.C. 429. Therefore, both parties reasonably could have understood that the plaintiffs purpose was to determine the value of his shares. The court had before it testimony and evidence that following the termination of the plaintiffs employment, no information regarding the defendant’s operations was given to the plaintiff until he requested access to the defendant’s financial documents and was denied access, but thereafter was presented with a certificate of incorporation, a document containing the names and addresses of the defendant’s officers and directors and two balance sheets prepared by its accountant for the years 1998-1999 and 1999-2000. The corporation was not publicly-held, but rather closely held. Unlike shareholders of a public corporation who receive annual reports of the corporation’s financial condition, the plaintiff had no such information, and the particular request he made had been denied. As the plaintiff stated his purpose with reasonable particularity, the court properly determined that this requirement was met.

C

The defendant next argues that the court improperly found that the plaintiff had established that the records requested were directly connected with his purpose. We do not agree. The court found that it was a “proper way” and “partial way,” if not the “total way,” to get the information needed.

The plaintiffs application for a writ of mandamus requested that he be given the right to inspect all state and federal income tax returns of the defendant and all accounting records from 1995 through the present, including, but not limited to all ledgers, balance sheets, profit-loss statements, revenue statements, corporate bank account statements or other recordings or entries concerning any distributions or payments of any manner of corporate moneys.

Floyd Ozeck, the defendant’s accountant, testified that the balance sheets that were given to the plaintiff did not include all the information that was needed to value the company. He also stated that an accountant would have to analyze the cash receipts and disbursements of the company, payroll records, purchase journals, accounts payable and accounts receivable, all of which were documents that the plaintiff requested, in order to evaluate the company upon a sale.

Ozeck’s testimony justified the court’s finding that the plaintiff had shown a correlation between the valuing of his stock and the documents he had requested. In fact, Ozeck testified that to value stock of a closely held corporation, there must be an appraisal done of the value of the company, especially if there was a contemplated sale of the corporation. An appraiser would have to analyze the same documents that the plaintiff had requested. Therefore, the court’s finding that the plaintiff established that the documents he had requested were directly related to his purpose of valuing his stock was not clearly erroneous. Because we conclude that the defendant has not shown that the court made any improper findings and the plaintiff met the requirements of § 33-946, we affirm the court’s granting of the writ of mandamus.

II

We next turn to the plaintiffs cross appeal. The plaintiff appeals from the court’s finding that he was not entitled to payment of attorney’s fees pursuant to § 33-948 (c). He argues that the court improperly denied his petition because there was no evidence that the defendant had a good faith reason for depriving the plaintiff access to the requested records. We agree.

The plaintiffs claim is essentially that the court’s finding was clearly erroneous because of insufficient evidence. A court’s finding is clearly erroneous “when there is no evidence in the record to support it . . . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Ress v. Suffield, 80 Conn. App. 630, 632, 836 A.2d 475 (2003), cert. denied, 267 Conn. 920, 841 A.2d 1191 (2004).

When explaining the reason for its denial, the court stated: “I’m not going to order attorney’s fees. I think this situation is very much like a divorce situation. I don’t believe in attorney’s fees in these kinds of cases, unless somebody really does not comply.” We do not see a similarity between attorney’s fees in a divorce case and the statutory right to attorney’s fees given in § 33-948 (c).

General Statutes § 46b-62 governs the award of attorney’s fees in dissolution proceedings and provides in relevant part that “the court may order either spouse ... to pay the reasonable attorney’s fees of the other in accordance with their respective financial abilities and the criteria set forth in section 46b-82.”

“Courts ordinarily award counsel fees in divorce cases so that a party . . . may not be deprived of [his or] her rights because of lack of funds. . . . Where, because of other orders, both parties are financially able to pay their own counsel fees they should be permitted to do so. . . . An exception to th[is] rule . . . is that an award of attorney’s fees is justified even where both parties are financially able to pay their own fees if the failure to make an award would undermine [the court’s] prior financial orders. . . . Whether to allow counsel fees . . . and if so in what amount, calls for the exercise of judicial discretion.” (Internal quotation marks omitted.) Bee v. Bee, 79 Conn. App. 783, 791, 831 A.2d 833, cert. denied, 266 Conn. 932, 837 A.2d 805 (2003).

In contrast, § 33-948 (c) provides: “If the court orders inspection and copying of the records demanded, it shall also order the corporation to pay the shareholder’s costs, including reasonable attorney’s fees, incurred to obtain the order unless the corporation proves that it refused inspection in good faith because it had a reasonable basis for doubt about the right of the shareholder to inspect the records demanded.” (Emphasis added.) This statute does not contain the same monetary limitations and discretionary standard as does the award of attorney’s fees in divorce cases. In light of the statute, a court cannot refuse to award attorney’s fees in all such cases. The court does not have the discretion to deny fees simply because the court does not believe they are ever warranted in this type of statutory action.

The defendant contends that the court properly denied the plaintiffs application for attorney’s fees because it made a finding that the records were withheld in good faith and that, in denying access, the defendant was relying on the advice of its attorney, Paul L. McCullough, and the opinion of its accountant, Ozeck. The record does not support such a finding.

When asked whether it was making a finding that the records were withheld in good faith, the court stated: “I make that finding, and it’s based on this. ... I believe it was Mr. McCullough who told him, the defendant, that he could indeed do that. What he showed him, indeed, from the accountant was enough, and, secondly, that . . . the accountant’s testimony was not as black and white as I thought. ... I do think Mr. McCullough pointed out where, you know, it could have been — you know, you could go either way on it, I guess. I’m holding in your favor for the record.”

The record contains no evidence or testimony indicating that the defendant corporation or any particular officers acting on its behalf were relying on the advice of counsel or its accountant. Although Ozeck testified that he would not give financial information to a minority shareholder without the permission of the defendant’s director, he never stated that he knew of the plaintiffs request for documentation or that he had advised the defendant concerning the denial of access to this information. In fact, Ozeck stated that he had possessed no knowledge of the plaintiffs request. The defendant does not direct us to anything in the record that would support an inference that advice from Ozeck could have led to a good faith denial of the plaintiffs request for access to the disputed financial records.

As to the advice of counsel, the defendant argues that the fact that one of its letters denying the plaintiffs request was on the letterhead of its outside counsel, supports an inference that the defendant was relying on the advice of counsel. We are not persuaded. First, the letter expressly stated that the information contained therein was the position of the defendant and did not indicate what advice, if any, was provided by the defendant’s counsel. Second, the court’s statements illustrate that the letter did not play a role in its decision. The court stated that its finding was based on statements that McCullough had made to the defendant. McCullough was the attorney who tried the case. He never testified, and there was no testimony or evidence presented regarding any conversations that he might have had with the defendant or its officers or employees. Therefore, there is insufficient evidence to uphold the court’s finding of good faith.

On the defendant’s appeal, the judgment is affirmed. On the plaintiffs cross appeal, the judgment is reversed as to the denial of the plaintiffs application for attorney’s fees, and the case is remanded for further proceedings to determine the amount of reasonable attorney’s fees to be paid to the plaintiff.

In this opinion the other judges concurred.

       Arizona, Arkansas, Florida, Idaho, Indiana, Kentucky, Massachusetts, Mississippi, Montana, North Carolina, South Carolina, Virginia, and Wyoming all have statutory provisions similar to Connecticut’s, and all are based on the Model Business Corporation Act. See 4 Model Business Corporation Act Annotated (American Bar Association 3d Ed. 2000/2001/2002 Sup.) § 16.02, p. 16-20. Their interpretations of the right and purpose of such an inspection illuminate our inquiry.

       Material regarding a shareholder’s right to inspect or copy corporate business records, formerly found in § 52 of the Model Business Corporation Act, is now found in § 16.02 of the Revised Model Business Corporation Act.

       Although Delaware’s inspection statute was not based on the Model Business Corporation Act, it does contain similar language regarding the requirement of a proper purpose, and these cases are cited in the model act’s annotation. See Del. Code Ann. tit. 8, § 220 (2001); 4 Model Business Corporation Act Annotated (American Bar Association 3d Ed. 2000/2001/ 2002 Sup.) § 16.02, pp. 16-37, 16-42.