author: Borden, J.

text:
    Daughters of St. Paul, Inc. v. Zoning Board of Appeals of the Town of Trumbull
    (6278)
    Dupont, C. J., Boeden and Bieluch, Js.

      Argued September 14
    decision released October 21, 1988

      Mark T. Altieri, with whom, on the brief, was Burton S. Yaffie, for the appellant (defendant).

      Gregory M. Conte, for the appellee (plaintiff).
   Borden, J.

The defendant appeals from the judgment of the trial court sustaining the plaintiff’s challenge to the denial of an application for a special exception. The plaintiff’s application sought approval to construct a convent and religious book and audiovisual center in a residential zone. Of the six reasons given by the defendant for denying the application, five remain as issues before us: whether the trial court erred in holding (1) that the proposed convent and book center would not constitute a prohibited use in a residential zone; (2) that the proposed facility was a “church or other place of worship” within the meaning of the applicable town zoning regulation; (3) that the rear setback of the facility was in compliance with the zoning regulations; (4) that the design of the building was in reasonable harmony with surrounding residential structures; and (5) that the facility would not create or exacerbate traffic and congestion problems in the neighborhood. We find no error.

The following facts are not in dispute. The plaintiff is a Roman Catholic order of nuns. For several years the plaintiff has maintained a convent and Roman Catholic bookstore in downtown Bridgeport. In 1986, the plaintiff purchased a lot in a residential zone on the southeast comer of the intersection of Main Street and Botsford Place in the town of Trumbull, with the intention of erecting and relocating to a new facility there. The proposed facility would consist of a main building and a garage. The ground floor of the main building would house a chapel, living room, dining room, kitchen and a large area for the book and audiovisual center; the second floor would contain eight small bedrooms and three bathrooms. The garage would be connected to the main building by a glass-enclosed, covered walkway, eighteen feet, six inches in length, and the eastern wall of the garage would be twenty feet, six inches, from the rear property line.

The plaintiff filed an application with the defendant requesting a special exception in accordance with Article II, § 1 B (2) of the town zoning regulations. The defendant, citing the aforementioned reasons, denied the request after a public hearing. The plaintiff appealed to the Superior Court, which reversed, holding that “the only reasonable conclusion is that the plaintiff was entitled to the special permit requested,” and that for the board to find otherwise was arbitrary and an abuse of discretion. We granted certification for appeal to this court.

I

When considering an application for a special exception, a zoning authority acts in an administrative capacity, and its function is to determine whether the proposed use is expressly permitted under the regulations, and whether the standards set forth in the regulations and statutes are satisfied. A. P. & W. Holding Corporation v. Planning & Zoning Board, 167 Conn. 182, 185, 355 A.2d 91 (1974). It has no discretion to deny the special exception if the regulations and statutes are satisfied. Westport v. Norwalk, 167 Conn. 151, 155, 355 A.2d 25 (1974). When a zoning authority has stated the reasons for its actions, a reviewing court may determine only if the reasons given are supported by the record and are pertinent to the decision. Spectrum of Connecticut, Inc. v. Planning & Zoning Commission, 13 Conn. App. 159, 163-64, 535 A.2d 382, cert. denied, 207 Conn. 804, 540 A.2d 373 (1988). The zoning board’s action must be sustained if even one of the stated reasons is sufficient to support it. Torsiello v. Zoning Board of Appeals, 3 Conn. App. 47, 50, 484 A.2d 483 (1984). In light of the existence of a statutory right of appeal from the decisions of local zoning authorities, however, “a court cannot take the view in every case that the discretion exercised by the local zoning authority must not be disturbed, for if it did the right of appeal would be empty .... In reviewing the action of the trial court, we have to decide whether it could in logic and in law reach the conclusion that the [defendant] should be overruled.” Suffield Heights Corporation v. Town Planning Commission, 144 Conn. 425, 428, 133 A.2d 612 (1957).

II

The defendant first claims that the trial court erred in holding that the board abused its discretion when it found that the proposed use was commercial and accordingly not a “church or other place of worship” within the meaning of Article II, § 1 B (2). We do not agree.

These two claims — that the proposed convent was a commercial use, and that it was not a church or other place of worship — were listed as two separate reasons in the defendant’s decision. We treat them together, however, because the first reason, that the proposed use was commercial, cannot stand on its own. The town zoning regulations do not exclude all commercial uses from residential zones; farms are allowed as a permissive use, and hospitals and convalescent homes as special exception uses. Certainly, farms, hospitals and convalescent homes may be commercial enterprises, whether they are operated for profit, or are nonprofit in nature, while at the same time being allowable uses in residential zones. Article II, §§ 1 A (6) and 1 B (5). Therefore, the zoning board could not use this reason alone to exclude the proposed convent. Beckish v. Planning & Zoning Commission, 162 Conn. 11, 15, 291 A.2d 208 (1971) (a condition imposed by the commission without being warranted by the regulations is void). The board’s argument on appeal, however, has made it clear that the first two reasons are to be read together.

“Whether a use is a religious one is a question of fact.” 2 R. Anderson, American Law of Zoning (3d Ed.) § 12.29; Rapid City v. Kahler, 334 N.W.2d 510, 512 (S.D. 1983). When a building is used for more than one purpose, “[t]he main, principal and dominant use of [the] building determines its character.” Fox v. Zoning Board of Appeals, 146 Conn. 70, 75, 147 A.2d 472 (1958). That determination is also a question of fact. See id., 75-77; West Hartford v. Rechel, 190 Conn. 114, 119, 459 A.2d 1015 (1983).

In this case, the principal factual question resolved by the defendant was whether the proposed facility constituted a church or other place of worship. It is clear that, if the facility were composed solely of the convent and chapel, the question would be whether the proposed convent and chapel constituted a church or other place of worship. It is also clear that, conversely, if the facility were composed solely of the book and audiovisual center, the plaintiff would have no valid claim that it constituted a church or other place of worship. Where the two uses are combined, therefore, the factual question resolved by the defendant breaks down into two separate but related issues: (1) whether the convent and chapel constitute a church or other place of worship; and (2) if so, whether the presence of the book and audiovisual center renders the dominant use of the building to be something other than as a church or other place of worship. We therefore consider whether the record reasonably supports either a negative answer to the first question or a positive answer to the second question. If so, the defendant’s determination must be upheld. We conclude that under the facts of this case the defendant could not reasonably conclude (1) that the convent and chapel do not constitute a church or place of worship, and (2) that the dominant use of the facility was other than for a church or other place of worship.

The following evidence was presented to the defendant. The plaintiff’s purpose, as stated in its corporate articles of organization, is “to do general missionary work; to give moral instruction to the public; to edit, print and publish books, periodicals, bulletins and papers in connection with said missionary work. For the purpose of the dissemination of religious and educational instruction. To educate and train young women for the sisterhood and to receive, maintain and administer funds for religious and educational services. To expend and apply funds or income for these purposes; to acquire, hold and lease and manage such real estate as may be necessary for the purpose.” The plaintiff is a nonprofit corporation. As proposed, the convent would contain a chapel, living and dining areas for the nuns, and a work area where religious and educational literature and tapes would be displayed for sale to the public. The “book center,” as the work area was termed in the plaintiffs application, would be open to the public on weekdays from 9 a.m. to 5 p.m., and on Saturday mornings. The chapel would be open and available to the public for prayer and meditation whenever the book center was open. The nuns would use the chapel for prayer two and one-half hours each weekday as part of their normal activities, and for mass on Sundays. The plaintiffs activity would be under the supervision of a local parish priest and the bishop of the diocese. The book center would be the largest single area in the building, although it would occupy no more than one third of the floor space in the building. The books and audiovisual material on display and for sale would be religious and educational in nature, and in support of the religious order’s missionary and instructional purposes.

Although the question of whether a building constitutes a church or other place of worship is factual, this sensitive determination must be informed by a recognition of the protection afforded the free exercise of religion by the constitutions of Connecticut; Conn. Const., art. I § 3; and of the United States; U.S. Const., amend. I. “ ‘[T]he concept of what constitutes a church has changed from a place of worship alone, used once or twice a week, to a church used during the entire week, nights as well as days, for various parochial and community functions.’ ” Beit Havurah v. Zoning Board of Appeals, 177 Conn. 440, 447-48, 418 A.2d 82 (1979), quoting 2 A. Rathkopf, The Law of Zoning and Planning § 20.03, p. 20-53 (1978). The question of whether a particular use is entitled to recognition as an accessory use for a church must be resolved with appropriate deference to “the primary use to which it is incidental.” Id., 447. The question of whether a particular use of a building qualifies the structure as a church or other place of worship demands similar deference.

Applying these principles to the facts of this case, we conclude that the defendant could not reasonably conclude that the convent and chapel, apart from the book and audiovisual center, would not constitute a church or other place of worship. It was undisputed that the plaintiff is an order of Roman Catholic nuns. The chapel would be open to the public during weekdays and on Saturday, and would be used by the nuns for prayer two and one-half hours daily and for mass on Sundays. These facts compel the conclusion that the convent and chapel constitute a church or other place of worship.

The question of whether the record supports the defendant’s decision that the book and audiovisual center renders the dominant use of the facility to be something other than that of a church or other place of worship, presents a closer question. We conclude, nonetheless, that under the particular facts of this case, the defendant was not justified in making that decision.

The defendant analogizes this case to a freestanding hospital thrift shop separate from the hospital itself, or to a monastery housing a shop that sells goods and services to the general public for the purpose of raising funds for the support of the facility. Thus, the defendant argues, this is essentially a commercial retail use open to the general public which so overshadows any religious use as to render that use subsidiary. In this case, however, the principal characteristic of the proposed book and audiovisual center, as evidenced by the purposes set forth in the plaintiff’s articles of organization, the nature of its proposed inventory, the presence of an adjoining chapel in the convent open to the patrons of the center, and the plaintiff’s nonprofit status, is the dissemination of religious doctrine and instructional material, not the mere selling of books. The goods sold here are not of a secular nature, as in the defendant’s analogies, but are an adjunct to the plaintiff’s primary purpose, namely, to do missionary work in support of the Roman Catholic faith.

The defendant’s argument also relies on the fact that the book and audiovisual center occupies more floor space than the chapel. We do not question that the relative size of the spaces devoted to differing uses is relevant to the determination of the dominant use of a facility. West Hartford v. Rechel, supra. That factor alone, however, is an insufficient basis in this case for a finding that the dominant use of the facility would be as a commercial bookstore, rather than as a church or other place of worship.

First, the space devoted to the living quarters of the nuns must be taken additionally into account in measuring these relative spaces. This factor is derived from Article II, § 1 B (2) of the zoning regulations, which includes, in addition to churches and other places of worship, “buildings housing personnel affiliated with said churches . . . . ” It would be an artificial yardstick that measures only the chapel space itself, without also including the part of the building housing and sustaining the nuns who maintain and use it. When this space is considered in the calculation, the book and audiovisual center occupies approximately one third of the facility’s area, and the convent and chapel occupy approximately two-thirds. Furthermore, because the chapel is open to the public whenever the center is open, and because the nuns use the chapel for worship on Sundays when the center is closed, the church or other place of worship is in use for more hours per week than the book and audiovisual center.

Second, the use of the book and audiovisual center is integrally related to that of the convent and chapel. The plaintiff proposes to use the center to make religious literature and other materials available to its visitors. In a different, but closely related, context, the United States Supreme Court has noted that “the mere fact that . . . religious literature is ‘sold’ . . . rather than ‘donated’ does not transform evangelism into a commercial enterprise.” Murdock v. Pennsylvania, 319 U.S. 105, 111, 63 S. Ct. 870, 87 L. Ed. 1292 (1943). In Beit Haruvah v. Zoning Board of Appeals, supra, our Supreme Court implicitly cautioned that a church’s accessory use must be regarded broadly for zoning purposes, in order to avoid serious constitutional questions. That same caution is required here, where we are determining the close question of whether the dominant use of the building should be characterized by its use as a church or other place of worship, or by its use for selling religious material that is closely related to that place of worship.

Ill

The defendant next claims that the trial court erred in holding that the defendant abused its discretion when it found that the rear setback of the proposed facility did not meet the minimum setback requirement of fifty feet. We disagree.

The defendant found that “[t]he rear setback does not meet the minimum setback requirement of fifty feet.” The trial court reversed the board for two reasons. First, it concluded as a matter of law that the garage fell within the definition of “accessory building” found in Article I, § 3 L, and second, that Article III, § 3 B required accessory buildings to stand only twenty feet from the rear property line, as opposed to the fifty foot requirement for houses. The garage at issue would stand twenty feet, six inches, from the rear lot line. Thus, the trial court concluded, the garage met the applicable setback requirement. We agree with the trial court.

Article I, § 3 L defines an accessory building as “a subordinate . . . building which is customarily incident to the main . . . building and which is located on the same lot with said main . . . building.” This definition undoubtedly applies to the garage in this case. Furthermore, Article III, § 3 A of the zoning regulations, which, inter alia, sets the height limits for accessory buildings, provides that “[accessory buildings, other than garages, shall not exceed a height of 10 feet above ground level . . . .” (Emphasis added.) It is clear, therefore, that under the town’s zoning regulations a garage located on the same lot as the main building is ordinarily considered to be an accessory building.

The defendant argues that the garage must be considered part of the main building because its connection to the main building is a glass-enclosed and covered walkway eighteen feet, six inches long. The defendant cites no authority for its position, but, in an effort to give the defendant’s decision every presumption of validity; see Eden v. Town Plan & Zoning Commission, 139 Conn. 59, 89 A.2d 746 (1952); we will examine our Supreme Court’s decision in Misuk v. Zoning Board of Appeals, 138 Conn. 477, 86 A.2d 180 (1952), which facially appears to support the defendant’s argument.

In Misuk, the plaintiff’s neighbor planned to erect a single family home and a garage on his newly purchased lot. The garage was to be attached to the house by an enclosed breezeway eight feet in length. Both the house and the garage were to be built of brick. The neighbor erred in measuring the distance from the property line to the nearest wall of the garage, so that as construction progressed, it became apparent that the garage would stand only two feet from the property line, instead of eleven feet as planned. After the plaintiffs complaint to the building inspector resulted in construction’s being halted, the neighbor applied for a variation in the side yard requirement. The board unanimously granted the variation, but the trial court reversed. The Supreme Court sustained the trial court, holding that a zoning ordinance excepting “a building of accessory use or garage” from the side yard requirements did not apply to the neighbor’s garage, because it was “constructed as a part of the residence and [was] . . . architecturally in harmony with the house of which it is a part,” and therefore was not an accessory building.

To apply the Misuk holding to the present case would engender several significant difficulties. In Misuk, there is no description of the construction of the breezeway and no discussion of the criteria by which the court determined that the garage constituted “part of the house.” We do not know, for instance, whether the breezeway shared its roof with the house, the garage, neither, or both. The court did not indicate whether the length of the breezeway played any significant part in its conclusion that the garage was part of the house. Nor do we know whether the breezeway in Misuk was enclosed with the same building material as the house and garage.

This last question is important here because in Bassett v. Pepe, 94 Conn. 631, 110 A. 56 (1920), the only Connecticut case on which the Misuk court relied in determining this issue, the court’s analysis turned on whether a person, “not critically examining [the garage], would be struck with the fact that it was not a part of the dwelling-house structure and used for the immediate purposes of residence and housekeeping therein.” Id., 638-39. This mode of inquiry is helpful in considering the application of Misuk here.

The case before us presents the following facts. The garage stands on its own foundation. It has four walls, none of which is in common at any point with the walls of the main building, and a roof not at any point in common with that of the main building. The walkway has its own, narrow roof, pitched at an angle. This roof meets the roof of the garage and the roof of the convent, but is not part of either. Unlike the brick walls of the convent and the garage, the walls of the walkway are glass; the walkway walls therefore could not be seen as an extension of either the walls of the convent or the garage. The walkway is eighteen feet, six inches long, and the open area between the convent and garage is covered with grass, except for the concrete of the walkway itself. The casual observer could not fail to note that he was viewing two discrete buildings joined by a glass-enclosed passageway.

Both Misuk and Bassett stress the concept of physical separation as essential to an accessory building’s identity. In Bassett, the garage itself touched the house; in Misuk a short, enclosed breezeway of unknown construction connected the two. The physical connection and any identity between the main building and garage in the present case is much less apparent.

In the enforcement of zoning regulations which are in derogation of common law property rights, such regulations are to be construed strictly and should not be extended by implication. Planning & Zoning Commission v. Craft, 12 Conn. App. 90, 96, 529 A.2d 1328, cert. denied, 205 Conn. 804, 531 A.2d 937 (1987); see also Bassett v. Pepe, supra, 637 (“where more than one intepretation of language is permissible, restrictions upon the use of lands are not to be extended by implication . . . doubtful language will be construed against rather than in favor of a [restriction]”). Common sense must be used in interpreting a zoning regulation, because it is assumed that the zoning authority intended to accomplish a reasonable and rational result. See Hall v. Planning Board, 2 Conn. App. 49, 52, 475 A.2d 1114 (1984).

It does not comport with common sense to construe the term “accessory building” so as to exclude a freestanding garage that is unmistakably a separate building, merely because there is an eighteen foot, six inch long, glass-enclosed, covered walkway between the garage and the main building. It also constricts the meaning of accessory building in such a way that the plaintiffs common law property rights are disparaged to an extent beyond that authorized in the zoning regulations. For these reasons we decline to extend the holding in Misuk v. Zoning Board of Appeals, supra, to the facts of the present case.

IV

The defendant’s final claims are that the trial court erred in holding that the board abused its discretion when it found that the proposed facility’s design was not in reasonable harmony with surrounding structures, and that the proposed use would be a detriment to the neighborhood by increasing traffic congestion. See footnote 2, supra. These claims must fail.

As we have already noted, the application of zoning regulations to restrict religious uses raises concern over the possible infringement of the constitutional rights guaranteed by the free exercise of religion clauses. The courts have been reluctant to uphold the strict enforcement, against religious uses, of regulations that require special exception uses to be in architectural harmony with the surrounding neighborhood. 2 R. Anderson, American Law of Zoning (3d Ed.) § 12.27. The possibility of discriminatory abuse of such regulations is obvious.

This possibility is rendered even more grave by virtue of the ability of zoning authorities essentially to insulate such a subjective decision from judicial review by failing to cite facts that support their decision. A zoning authority may act upon facts known to it even though those facts are not offered in evidence at the hearing; Mrowka v. Board of Zoning Appeals, 134 Conn. 149, 154, 55 A.2d 909 (1947); and the reasons given by a zoning authority, presumably composed of lay persons, to justify its action need not be in a form to satisfy the meticulous criterion of a legal expert. DeMars v. Zoning Commission, 142 Conn. 580, 584, 115 A.2d 653 (1955). Nonetheless, this court can review the reasonableness of the board’s finding; see Spectrum of Connecticut, Inc. v. Planning & Zoning Commission, supra; by determining whether the reasons given are supported by the record and are pertinent to the decision. Id. The great weight of the constitutional issues implicated leads us to conclude that, under the circumstances here, such a subjective decision as the one now under review must be reasonably supported by facts discernible in the record. Our thorough search of the record fails to disclose such facts.

In the present case, the proposed building came within the exterior dimension limits for an ordinary dwelling in a residential zone and, according to the building’s architect, was designed specifically to blend with the architecture of the surrounding homes. The board heard the testimony of the plaintiff’s architect, who described the design of the exterior of the building as mixed colonial and traditional, with a pitched, asphalt shingled roof and a low profile, in keeping with the residential architecture in the neighborhood. The exterior walls would be brick and the proposed building would be one-third larger than the house presently situated on the lot. The property would be landscaped and would retain most of the trees presently on the lot. The architectural renderings of the facility in the record are consistent with this testimony.

The only evidence in the record that militates against the conclusion that the building would be in harmony with the surrounding homes was the somewhat contradictory testimony of two lay individuals at the application hearing. One testified that the houses on Botsworth Place “are all modem”; the other stated that most of the houses on Botsworth Place “are raised ranches, and capes.” Both maintained, without offering any supporting facts, that the proposed building would not be in harmony with the surrounding structures. We find this testimony incapable of supporting the board’s decision, in light of the other testimony offered, and in light of the objective evidence of the architectural renderings, which indicate no basis for a conclusion that the proposed facility would not be in reasonable architectural harmony with residences that are “modern,” “raised ranches” or “capes.”

Finally, the board had before it evidence, given by the plaintiff’s expert traffic engineer and essentially uncontradicted, that Main Street near the intersection of Botsworth Place carried a daily traffic volume of over 18,000 cars. He estimated that the proposed use would draw approximately twenty cars per day to its parking lot. In addition, the only evidence before the board concerning an increase in commercial traffic caused by the proposed use indicated that the book center might require one United Parcel Service delivery per day. The record, therefore, does not support the board’s conclusion that the proposed use would cause a detriment to the neighborhood by reason of traffic and congestion. Torsiello v. Zoning Board of Appeals, 3 Conn. App. 47, 50, 484 A.2d 483 (1984).

There is no error.

In this opinion the other judges concurred.

       At oral argument in this court, the defendant withdrew one of the issues, namely, whether the proposed facility provided adequate off-street parking.

       Article II, § 1 B of the town zoning regulations provides in pertinent part: “Special Exceptions. The following uses maybe permitted as special exceptions provided that the Zoning Board of Appeals finds that adequate off-street parking facilities are provided in connection therewith; that the existing public streets are suitable and adequate to handle any additional traffic generated by the proposed use; that no hazard to the public health or safety will result from the proposed use or the traffic generated thereby; that the land on which such use is to be conducted is landscaped in such a manner and the buildings in which such case [sic] is to be conducted are so designed in external appearances and layout that reasonable harmony with surrounding residential structures is maintained; that said land and buildings as so used will not detract from the residential character of the neighborhood in which they are located and will not adversely affect property values in said neighborhood; and that the proposed use will not contravene any of the purposes of zoning as set forth in Section 8-2 of General Statutes of Connecticut, Revision of 1958 and provided further that the Zoning Board of Appeals shall determine the minimum yards and maximum lot coverage to be applied in said special exception, such minimum yards and maximum lot coverage shall in no event be less than is prescribed in the Schedule under Article III, and may impose such further conditions in connection with the proposed use as it shall deem necessary to satisfy the conditions and standards set forth herein:
      * ** *
      “(2) Churches and other places of worship, including parish houses and Sunday School buildings; non-profit primary and secondary schools; and buildings housing personnel affiliated with said churches and schools.”

       The defendant found that the proposed building would not be used as a “church.” It did not specifically determine that the building would not constitute an “other place of worship,” but that determination is implicit in the defendant’s decision. Although it is not entirely clear, it appears that the trial court found that the facility was both a “church” and a “place of worship.” On appeal to this court, neither party has focused on the difference, if any, between the two terms, and we do not believe it is necessary to do so in this case. We therefore view this issue as whether the board was justified in deciding that the plaintiff’s facility was not a “church or other place of worship.”

       The defendant in its brief quotes a portion of the plaintiffs testimony at the aggrievement hearing, wherein the plaintiff referred to the proposed facility variously as a “book center and convent” and as a “book store.”
        (Emphasis added.) The defendant argues that the use of the word “store” indicates that the principal use of the facility would be commercial. The question we must resolve, however, is not whether “store” connotes commercialization, but whether the primary use of the facility falls within the applicable special exception use.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Herbert V. Camp, Jr. v. Union Manufacturing Company et al.
    (6007)
    Daly, O’Connell and Norcott, Js.
    Argued October 12
    decision released November 8, 1988

      Herbert V. Camp, Jr., pro se, the appellant (plaintiff).

      Ralph G. Elliot, with whom, on the brief, was Jeremy H. Greshin, for the appellees (defendant Herbert E. Carlson et al.).

      George C. Hastings, for the appellee (defendant Walter F. Skillin).

      J. Read Murphy, for the appellee (defendant Union Manufacturing Company).

      Jacob Wieselman, with whom, on the brief, were Matthew Horowitz and David C. Evans, for the appellees (nondefendant shareholders).

      Henry W. O’Brien, for the appellee (defendant Charles Moore, Jr.).
   Per Curiam.

Section 52-572j does not require the assent of each individual shareholder in order for a settlement to be approved by the court. Moreover, the cause of action in a derivative suit belongs to the corporation, not to the nominal plaintiff. We find it persuasive that the federal courts that have considered this issue have held that the assent of the nominal plaintiff is not essential to the settlement. See Saylor v. Lindsley, 456 F.2d 896, 899 (2d Cir. 1972); Bryan v. Pittsburgh Plate Glass Co., 494 F.2d 799, 803 (3d Cir.), cert. denied, 419 U.S. 900, 95 S. Ct. 184, 42 L. Ed. 2d 146 (1974); Flinn v. FMC Corporation, 528 F.2d 1169, 1174 (4th Cir. 1975), cert. denied, 424 U.S. 967, 96 S. Ct. 1462, 47 L. Ed. 2d 734 (1976); Pettway v. American Cast Iron Pipe Co., 576 F.2d 1157, 1216 (5th Cir. 1978), cert. denied, 439 U.S. 1115, 99 S. Ct. 1020, 59 L. Ed. 2d 74 (1979). We have reviewed the evidence and conclude that the trial court did not abuse its discretion in finding that the settlement was fair, reasonable and adequate. See Weinberger v. Kendrick, 698 F.2d 61, 73 (2d Cir. 1982), cert. denied, 464 U.S. 818, 104 S. Ct. 77, 78 L. Ed. 2d 89 (1983).

There is no error.


author: Bieluch, J. O’Connell, J.,

text:
    Rowan Construction Corporation v. Zef Hassane
    (6487)
    Dupont, C. J., Bieluch and O’Connell, Js.

      (One judge dissenting)

    Submitted on briefs September 7
    decision released October 21, 1988

      Mark F. Katz filed a brief for the appellant (plaintiff).

      Lawrence D. Church filed a brief for the appellee (defendant).
   Bieluch, J.

This is an appeal by the plaintiff from the judgment rendered for the defendant on the plaintiff’s amended complaint and on the defendant’s revised counterclaim. The plaintiff claims that the trial court erred (1) in denying its motion for a mistrial, (2) in accepting the report of the attorney trial referee, and (3) in assessing the amount of damages sustained by the defendant. We find error.

On or about July 10, 1981, the parties entered into a written contract under which the plaintiff agreed to purchase property of the defendant on or before April 1, 1982, for the price of $370,000. A deposit of $25,000 was given to the defendant’s counsel to be held in escrow in an interest bearing account for the benefit of the plaintiff until the scheduled closing. The transfer was contingent on the plaintiff’s obtaining zoning approval for the construction of a minimum of twelve dwelling units on the premises. The plaintiff unsuccessfully applied for zoning approval of fifteen units. When the defendant refused to return the deposit, the plaintiff commenced this action. The defendant counterclaimed for unspecified damages. After the pleadings were closed and the case was claimed for trial, the court, without obtaining the consent of the parties, assigned the action to an attorney trial referee for hearing. The trial was completed on October 25, 1985.

The trial referee filed his first report on January 8, 1986. He found that the plaintiff had breached its contract by seeking zoning approval for a development in excess of the number of dwelling units specified in the contract and refusing to reduce its size to meet that contract condition. As to the defendant’s counterclaim, although the referee expressly rejected the defendant’s evidence regarding the difference in value of the real estate between its contract price and fair market value, he found that the defendant was damaged otherwise in the amount of $55,682.93. This damage consisted of payments by the defendant, between the contract closing date of April 1,1982, and the subsequent transfer to another party on October 1, 1984, for interest on two mortgages and property taxes.

Both parties moved to correct these findings pursuant to Practice Book § 441. At the same time, the plaintiff filed a motion for mistrial on the ground that the “state trial referee represented a party in an adversarial position to that of the plaintiff on an occasion prior to the commencement of trial .... Specifically, the trial referee represented a party ... on a purchase of real estate from the plaintiff on or about 1976.” After a hearing, the motion for mistrial was denied by the court. A hearing was held by the referee on the two motions to correct the referee’s findings on April 8, 1987, at which time the parties “stipulated and agreed that the fair market value of the premises on April 1, 1982, was $305,000 and the contract price was $370,000.” On the basis of this stipulation, the trial referee filed a corrected finding on May 21,1987, amending his prior decision “to add to the damages suffered by the defendant on the counterclaim the amount of $65,000, being the difference between the contract price and the fair market value of the property.” By this correction, the attorney trial referee increased his award of damages on the defendant’s counterclaim to $120,682.93.

On May 28,1987, the plaintiff filed an “objection to state trial referee reference” on the sole ground that the matter had been referred without its express consent. When the defendant moved for judgment in accordance with the corrected finding of the trial referee, the plaintiff, on June 15, 1987, objected to the acceptance of the report for this same reason, as well as for grounds specified in Practice Book § 440. This objection to the report was overruled on August 6, 1987, when the court accepted the referee’s report and rendered judgment for the defendant on the plaintiff’s amended complaint and for the defendant to recover damages of $120,682.93 on his revised counterclaim. The plaintiff has appealed to this court.

There is no merit to the plaintiff’s claim that the trial court erred by denying its motion for a mistrial filed on the ground that the attorney referee should have disqualified himself from the proceedings because he had had a professional position adversarial to that of the plaintiff in a real estate transaction ten years earlier. For the first time in a reported decision, we review the standard of conduct applicable to attorney state trial referees in the exercise of their duties under the statewide program supplementing our limited judicial resources.

This program was officially inaugurated on February 1, 1984, by the Honorable John A. Speziale, formerly Chief Justice of the Supreme Court. Conn. L. J., Jan. 31,1984, p. 12C. In the official announcement of this auxiliary judicial resource, the Chief Justice, under the powers of his office, “designated the Chief Court Administrator to implement and administer this experimental project.” On January 31, 1984, guidelines for attorney state trial referees were promulgated by the Chief Court Administrator. These provided, inter alia, that the following oath of office be taken by each referee upon appointment: “You do solemnly swear (or affirm, as the case may be) that you will support the Constitution of the United States, and the Constitution of the State of Connecticut, so long as you continue a citizen thereof; that you will faithfully discharge, according to law, the duties of the office of state trial referee to the best of your ability; and that you will, in addition to complying with the provisions of the Code of Professional Responsibility, comply with the provisions of Canons 1, 2 and 3 of the Code of Judicial Conduct concerning the matters in which you serve as a state trial referee. So help you God.” (Emphasis added.) Canon 3 C of the Code of Judicial Conduct, as relevant here, provides: “C. Disqualification. (1) A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where: (a) he has a personal bias or prejudice concerning a party . . . .”

The plaintiff is correct in his assertion that this court should apply to an attorney state trial referee the same code of conduct that it uses to determine whether a judge should have been disqualified from hearing a matter. The standard applied to determine whether the trier should be disqualified goes beyond a finding of actual bias. “The controlling standard is whether a reasonable person who is aware of all the circumstances surrounding the judicial proceeding would question the judge’s impartiality.” LaBow v. LaBow, 13 Conn. App. 330, 334, 537 A.2d 157 (1988). We find that the present circumstances do not raise such a question.

At the court hearing on the motion for mistrial, the referee testified that he had no recollection, after the lapse of ten years, of the real estate closing involving the plaintiff. Furthermore, he was unfamiliar with the plaintiff or its name at the time of the trial, except for the evidence presented to him. The plaintiff did not show any business or other relationship between the referee and the plaintiff that would give cause for the referee’s disqualification. We agree with the trial court’s finding that the real estate closing related by the plaintiff was, in any event, too remote to create, or even to suggest, a real or apparent conflict of interest by the referee, or color of personal bias or prejudice against the plaintiff. The trial court did not err in denying the plaintiffs motion for mistrial.

The plaintiff also claims that the trial court erred in accepting the referee’s original and corrected reports because the plaintiff never expressly consented to a trial before an attorney state trial referee. This claim is a correct expression of the law: a case may not be referred to an attorney state trial referee without the consent of the parties. Seal Audio, Inc. v. Bozak, Inc., 199 Conn. 496, 514-15, 508 A.2d 415 (1986). “The [parties, however,] are deemed to have given their implicit consent to the referral by failing to raise their objection in a timely fashion.” Bowman v. 1477 Central Avenue Apartments, Inc., 203 Conn. 246, 251, 524 A.2d 610 (1987). “The fact that the [plaintiff] did not expressly consent to the referral did not deprive the referee of authority to hear and decide the case.” (Emphasis in original.) Id. In the case before us, the plaintiff failed to object to the referral of the case until the trial was completed and the report of the referee’s findings and decision was filed in court. “The appropriate time to object in this case would have been at the time of the referral, or at least prior to the commencement of the hearing before the referee.” Id. We find that the trial court did not err in accepting the referee’s report.

The plaintiff’s remaining claim of error attacks the referee’s findings and the judgment thereon assessing the amount of damages sustained by the defendant on his revised counterclaim. The referee filed his original findings on January 8,1986. Pursuant to Practice Book § 438, both parties moved to correct the findings. The referee granted the motions and filed additional findings on May 21, 1987. Each party then had the right to object to the acceptance of the referee’s report within two weeks of its filing. Practice Book § 441.

On May 28,1987, the plaintiff filed an “objection to state trial referee reference” of the case without its consent, and requested that the matter be restored to the trial docket for hearing before a judge. The objection was not acted on until August 6,1987, when it was implicitly overruled on the rendering of judgment in accordance with the referee’s reports. The first question we must resolve is whether the plaintiff’s “objection” of May 28, 1987, was an objection to the acceptance of the referee’s report within the terms of Practice Book § 440. If it was, the objection was timely, having been made within two weeks of the filing of the referee’s supplemental report. The second objection of the plaintiff, dated June 15,1987, was clearly untimely because it was not filed within two weeks of the date of the referee’s report, as mandated by Practice Book § 441. The plaintiffs second objection included substantive objections to the report, and reiterated the sole ground of its May 28,1987 objection, namely, that the report should not be accepted because the plaintiff had not consented to the reference.

The basic purpose of objecting to the acceptance of a trial referee’s report is to demonstrate that the conclusions of fact stated within it are not supported by the subordinate facts, or that the referee erred in rulings on evidence or in other rulings. Practice Book § 440; Dorsen v. Kay, 13 Conn. App. 645, 649, 538 A.2d 1080 (1988). Although there may be “other reasons why the report should not be accepted”; Practice Book § 440; we conclude that one of these reasons cannot be an untimely objection to the reference itself for lack of consent made after the trial is over. Our conclusion follows the holding of Seal Audio, Inc. v. Bozak, Inc., supra, released on April 29, 1986, thirteen months before the plaintiffs objection to the reference. After the filing of the referee’s report, without objection to the reference prior to trial, it is too late to attack the reference solely on the ground of a lack of consent. Bowman v. 1477 Central Avenue Apartments, Inc., supra.

The second question that justice compels us to discuss is the correctness of the referee’s assessment of damages. Although we find that the objection of May 28,1987, cannot serve as a valid objection to the acceptance of the referee’s report, we conclude, nevertheless, that the trial court erred substantially when it rendered judgment in the amount of $120,682.93. Practice Book §§ 443, 4185. The trial court’s judgment for the defendant to recover $120,682.93 additionally allowed the defendant to retain the deposit of $25,000, making the total damages awarded, in effect, $145,682.93.

The measure of damages for breach of a contract is the actual loss sustained by reason of the breach, which is the monetary value of what the promisee would have made if the contract had been performed, less the proper deductions. 22 Am. Jur. 2d, Damages § 45. The award of damages in such a case is designed to place the injured party, so far as can be done by money, in the same position in which he would have been had there been no breach. West Haven Sound Development Corporation v. West Haven, 201 Conn. 305, 319, 514 A.2d 734 (1986); Loda v. H.K. Sargeant & Associates, Inc., 188 Conn. 69, 81, 82, 448 A.2d 812 (1982). “ ‘The measure of damages for breach of contract of sale [of real estate] is the difference between the contract price and the value of the property at the time of the breach of the contract. These damages represent the loss of the bargain.’ ” (Emphasis in original.) (Citations omitted.) Loda v. H.K. Sargeant & Associates, Inc., supra, 82.

It was within the referee’s purview to find, as a fact, that the contract was breached. The determination of whether a deficiency for a breach of contract exists and the valuation of the components of that deficiency are also questions of fact for the trier. Beckman v. Jalich Homes, Inc., 190 Conn. 299, 309-10, 460 A.2d 488 (1983). Here, there is no dispute that the defendant suffered a loss or deficiency, nor is there a dispute that the defendant paid mortgage interest and property taxes in the amount of $55,682.93 from the date of the breach to the date of another sale, that the agreed contract price was $370,000, that the fair market value of the property on the date of the breach was $305,000, and that the property was later sold to another purchaser for $375,000. The only dispute as to the amount of damages due the defendant relates to the method of their assessment.

The ultimate question is whether the defendant has been awarded damages that exceed the amount necessary to put him in the position in which he would have been had the plaintiff not breached the contract. The parties agree that the date of the breach was April 1, 1982, and that the fair market value of the property on that date was $305,000. If the measure of damages enunciated in Loda is used, the defendant is entitled to damages of $65,000.

The defendant cannot also receive the mortgage interest and tax payments he made after April 1,1982, because the date as of which he is to be made whole is that date, the time of the breach. If the law were otherwise, the repudiating purchaser could be held liable for mortgage interest and tax payments indefinitely, depending upon when, if ever, the seller sold the property. At the same time, the seller would not be required to give the breaching purchaser a credit should he sell the real estate at a price greater than the contract price, or a credit for use of the property in the intervening years. The court, therefore, erred when it further assessed the damages due the defendant as of a time other than the date of the breach.

There is error, the judgment on the defendant’s revised counterclaim is set aside and the case is remanded with direction to render judgment for the defendant on his counterclaim in the amount of $65,000, less a credit in favor of the plaintiff in the amount of the deposit held in the escrow account, with its accrued interest.

In this opinion, Dupont, C. J., concurred.

O’Connell, J.,

dissenting. I disagree with the majority’s reaching the issue of damages. Practice Book § 441 mandates that objections to the acceptance of a referee’s report be filed within two weeks from the filing of the referee’s decision on a party’s motion to correct. In the present case, the objection was filed eleven days beyond this time limit.

Relying on Practice Book § 441, both the Supreme Court and this court have consistently held that failure to file a timely objection precludes appellate review of claims of error attacking the trial court’s acceptance of a referee’s report. “A litigant cannot wholly ignore established procedures for the protection of its rights, as this [plaintiff] has done, and hope to receive on appeal the same treatment accorded to those who follow the rules of practice.” Seal Audio, Inc. v. Bozak, Inc., 199 Conn. 496, 518, 508 A.2d 415 (1986); Dorsen v. Kay, 13 Conn. App. 645, 650, 538 A.2d 1080 (1988); Ross v. Renzulli, 9 Conn. App. 87, 90, 516 A.2d 149 (1986); see also Morning Star Holding Co. v. Kostopoulos, 12 Conn. App. 593, 595, 533 A.2d 569 (1987); LiVolsi v. Pylypchuk, 12 Conn. App. 527, 528, 532 A.2d 593 (1987). I find no justification for departing from this established position. Accordingly, I dissent from the majority opinion that discusses damages. I would find no error.

       “[Practice Book] Sec. 441. time to file objections.
      “Objections to the acceptance of a report shall be filed within two weeks after the filing of the report or finding, or if a motion to correct the report or finding has been made, within two weeks from the filing of the decision on the motion.”

       “[Practice Book] Sec. 440. objections to acceptance of report.
      “A party may file objections to the acceptance of a report on the ground that conclusions of fact stated in it were not properly reached on the basis of the subordinate facts found, or that the committee erred in rulings on evidence or other rulings or that there are other reasons why the report should not be accepted.
      “If an objection raises an issue of fact the determination of which may require the consideration of matters not appearing in the report or stenographic notes of proceedings before the committee, the adverse party shall, within two weeks after the filing of the objection, plead to it by a motion to strike, answer or other proper pleading.”

       Judgment was opened on October 5,1987, on the plaintiff’s motion for failure to receive proper notice thereof, and reinstated at that time to allow a timely appeal by the plaintiff.

         General Statutes § 51-lb (a) provides: “The chief justice of the supreme court shall be the head of the judicial department and shall be responsible for its administration.”

       “[Practice Book] Sec. 438. motion to correct.
      “If either party desires to have the report or the finding corrected by striking out any of the facts found, or by adding further facts, or by stating the claims of the parties made before the committee, or by setting forth rulings upon evidence or other rulings of the committee, he shall within two weeks after the filing of the report or finding file with the court a motion to correct setting forth the changes and additions desired by him. He shall accompany the motion with a brief statement of the grounds of each correction asked, with suitable references to the testimony. The file shall then be returned to the committee for consideration of the motion to correct. As soon as practicable the committee shall file with the court the motion to correct, together with his decision thereon.”

       See footnote 1, supra.

       “[Practice Book] Sec. 443. function of THE COURT.
      “The court shall render such judgment as the law requires upon the facts in the report as it may be corrected. If the court finds that the committee has materially erred in his rulings or that by reason of material corrections in his findings the basis of the report is subverted or that there are other sufficient reasons why the report should not be accepted, the court shall reject the report and refer the matter to the same or another committee for a new trial or revoke the reference and leave the case to be disposed of in court.
      “The court may correct a report at any time before judgment upon the written stipulation of the parties or it may upon its own motion add a fact which is admitted or undisputed or strike out a fact improperly found.”

       Practice Book § 4185 provides in relevant part: “The supreme court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The supreme court may in the interests of justice notice plain error not brought to the attention of the trial court.”


author: Dupont, C. J.

text:
    AMAX, Inc. v. John G. Groppo, Commissioner of Revenue Services
    (6374)
    Dupont, C. J., Borden and Foti, Js.

      Argued September 14
    decision released November 8, 1988

      Jane D. Comerford, assistant attorney general, with whom, on the brief, was Joseph I. Lieberman, attorney general, for the appellant (defendant).

      Kenneth E. Werner, with whom was Thomas R. Webb, and, on the brief, Scott P. Moser and Charles H. Lenore, for the appellee (plaintiff).
   Dupont, C. J.

The plaintiff, AMAX, Inc., is a multistate corporation with its principal place of business in Connecticut. The issue in this case is whether the plaintiff owed an additional Connecticut corporation business tax arising out of capital gain and dividend income received by it in 1975, as assessed by the defendant, the commissioner of revenue services. The resolution of this issue necessitates an interpretation of General Statutes (Rev. to 1975) § 12-218.

The commissioner assessed a tax of $1,604,746, plus interest at the statutory rate, against the plaintiff. This assessment was based on the defendant’s treatment of the plaintiff’s income as allocated to Connecticut, resulting in its being subject in its entirety to the Connecticut corporation business tax pursuant to General Statutes (Rev. to 1975) § 12-218 (l). The plaintiff, pursuant to General Statutes § 12-237, appealed to the Superior Court from the defendant’s determination, asserting that it was entitled to apportionment of the dividend and capital gain income under the provisions of General Statutes (Rev. to 1975) § 12-218 (2).

The trial court rendered judgment for the plaintiff, and ordered that the defendant’s assessment of additional tax be set aside and the case remanded to the defendant for an apportionment of the capital gain and dividend income received by the plaintiff pursuant to General Statutes (Rev. to 1975) § 12-218 (3) (a), (b) or (c). We find no error.

The stipulated facts are as follows. The plaintiff, a New York corporation, has been engaged for many years in the mining, refining and sale of metals, including copper, throughout the world. In 1975, the plaintiff owned an interest in two mining companies in South Africa, O’okiep Copper Company Limited (O’okiep) and Tsumeb Corporation Limited (Tsumeb). O’okiep was formed in 1937 and has been continuously engaged in copper mining in South Africa since that time. Tsumeb was formed in 1947 and, since that time, has been continuously engaged in copper mining in southwest Africa.

In December, 1975, the plaintiff transferred its interests in O’okiep and Tsumeb to a Bermuda corporation in exchange for 100 percent of its stock. For federal income tax purposes, that transfer was a taxable transaction and the plaintiff reported capital gains of $10,261,039 and dividends of $5,769,964 attributable to the transfer on its 1975 federal income tax return.

The parties disagree on two issues. The first issue includes a number of related claims. The plaintiff argues that § 12-218 of the General Statutes (Rev. to 1975) is ambiguous, that it concerns the imposition of a tax, that the defendant’s interpretation of the statute is not entitled to any deference, and that the plaintiff was entitled to a de novo review upon its appeal to the trial court. Conversely, the defendant argues that the statute is not ambiguous, that it concerns an exemption from the Connecticut corporation business tax, that the defendant’s interpretation of § 12-218 is entitled to special deference, and that the plaintiff was not entitled to a de novo review. Second, the plaintiff claims that the income received from the 1975 sale of its stock in O’okiep and Tsumeb was “integral” to its business and thus apportionable pursuant to § 12-218 (2). The defendant would allocate the entire gain to Connecticut, claiming that § 12-218 (1) applies.

I

The defendant first claims that the trial court erred in concluding that § 12-218 was ambiguous and therefore to be construed in favor of the plaintiff and against the taxing authority. We disagree. The law in this state is clear that, if a taxing statute is ambiguous, the taxpayer is entitled to a construction in its favor. Schlumberger Technology Corporation v. Dubno, 202 Conn. 412, 423, 521 A.2d 569 (1987). We conclude that § 12-218 was ambiguous, given the legislative history that accompanied the statute’s amendment in 1981 from an allocation or apportionment formula to a straight apportionment formula. Moreover, the meaning of “integral parts,” the statutory language at issue in this case, is not readily discernible from the face of the statute. The statute is sufficiently ambiguous, thereby entitling the plaintiff to a construction of § 12-218 in its favor.

The defendant also argues that the trial court erred in concluding that § 12-218 concerns the imposition of a tax and, therefore, must be strictly construed against the taxing authority and in favor of the taxpayer. In B. F. Goodrich Co. v. Dubno, 196 Conn. 1, 6, 490 A.2d 991 (1985), however, the court concluded that § 12-218 concerned the imposition of a tax. The statute must, therefore, be strictly construed in favor of the taxpayer and against the taxing authority. Texaco Refining & Marketing Co. v. Commissioner, 202 Conn. 583, 588, 522 A.2d 771 (1987); Schlumberger Technology Corporation v. Dubno, supra, 420-23.

The defendant further argues that the trial court erred in concluding that no deference should be given to his interpretation of § 12-218. “[T]he construction of a statute on an issue that has not previously been subjected to judicial scrutiny is a question of law on which an administrative ruling is not entitled to special deference.” Schlumberger Technology Corporation v. Dubno, supra, 423. Furthermore, the appellate review accorded to a taxpayer after an adverse ruling by the commissioner of revenue services is a plenary one; Texaco Refining & Marketing Co. v. Commissioner, supra, 583; and the taxpayer is entitled to a trial de novo. Schlumberger Technology Corporation v. Dubno, supra, 421. The trial court was, therefore, correct as to the first set of claims raised.

II

The defendant next claims that the trial court erred in concluding that the acquisition, management and disposition of the stock of the plaintiffs subsidiaries (O’okiep and Tsumeb) constituted income that was an “integral [part] of [the plaintiffs] regular trade or business operations,” thereby compelling the application of § 12-218 (2). The defendant relies on § 12-218 (1), arguing that since the plaintiff has its principal place of business in Connecticut, the entire income must be allocated to this state. In effect, the defendant reads § 12-218 (2) as an exception to § 12-218 (1), claiming that the income was not “integral” to the plaintiffs business and, therefore, that § 12-218 (2) does not apply. Section 12-218 (2) states that income accrued by an integral business shall be apportioned and not allocated. We agree with the trial court that the income was integral to the plaintiffs business and thus was apportionable under § 12-218 (2).

The crucial question in this case is the meaning of the term “integral.” Since there is no Connecticut authority that directly addresses the question of what constitutes an “integral” part of a business, we, like the trial court, use United States Supreme Court cases for guidance. Although these leading cases relied on by the trial court to determine whether the plaintiff and its subsidiaries constitute an integral business do not address the standard to be used to interpret the meaning of “integral parts” income, they are relevant to the interpretation of General Statutes (Rev. to 1975) § 12-218 (2). See Container Corporation of America v. Franchise Tax Board, 463 U.S. 159, 103 S. Ct. 2933, 77 L. Ed. 2d 545, reh. denied, 464 U.S. 909, 104 S. Ct. 265, 78 L. Ed. 2d 248 (1983); F. W. Woolworth Co. v. Taxation & Revenue Department, 458 U.S. 354, 102 S. Ct. 3128, 73 L. Ed. 2d 819, reh. denied, 459 U.S. 961, 103 S. Ct. 274, 74 L. Ed. 2d 213 (1982); ASARCO, Inc. v. Idaho State Tax Commission, 458 U.S. 307, 102 S. Ct. 3103, 73 L. Ed. 2d 787 (1982); Exxon Corporation v. Wisconsin Department of Revenue, 447 U.S. 207, 100 S. Ct. 2109, 65 L. Ed. 2d 66 (1980); Mobil Oil Corporation v. Commissioner of Taxes, 445 U.S. 425, 100 S. Ct. 1223, 63 L. Ed. 2d 510 (1980). All of these cases concern the constitutionality of state apportionment statutes under the due process and commerce clauses of the United States constitution. U.S. Const., amend. XIV, § 1 and art. I, § 8, cl. 3. The constitutional nexus explicated by the Supreme Court in these cases is the unitary business principle.

This principle provides that apportionment is constitutionally permissible only if the income being taxed was earned in the course of activities that are part of a unitary business conducted by the corporate taxpayer within the taxing state. See Mobil Oil Corporation v. Commissioner of Taxes, supra, 439. In order to determine whether it is constitutionally permissible for a state to tax corporate income, the unitary business principle requires a review of certain factors. These factors are “functional integration, centralization of management, and [other] economies of scale.” Id., 438. Since these “factors of profitability” are derived from the operation of the business in its entirety, it would be deceptive to characterize such income as having a particular origin. Id.

The unitary business principle is similar to the concept of “integral parts” income under § 12-218 (2). Since the statute does not define the term “integral” we accord the term its commonly understood meaning. B. F. Goodrich Co. v. Dubno, supra, 5. The word “integral” is commonly understood to mean “entire,” and the term “unitary” generally means “whole.” American Heritage Dictionary (2d Ed. 1985). Furthermore, the United States Supreme Court cases that delineate the unitary business principle concern state apportionment statutes that likewise employ the statutory language at issue in this case. See, e.g., F. W. Woolworth Co. v. Taxation & Revenue Department, supra, 357 n.2; ASARCO, Inc. v. Idaho State Tax Commission, supra, 310.

The Supreme Court’s “unitary cases,” as previously noted, describe the significant factors that support a conclusion that a corporation is part of a unitary business. In addition, the trial court must find that these factors demonstrate the actual exertion of control by a corporation over its subsidiaries, as opposed to potential control. F. W. Woolworth Co. v. Taxation & Revenue Department, supra, 362-63. The first factor, functional integration, is present here. The trial court found, and we agree, that the plaintiff was functionally integrated with its subsidiaries, O’okiep and Tsumeb. This finding is amply supported by the record. The parties stipulated that O’okiep and Tsumeb were engaged in the business of mining copper. The trial court also found that the plaintiff and its predecessors have been engaged for many years in the business of mining, refining and selling a variety of metals, including copper, throughout the world. “When a corporation invests in a subsidiary that engages in the same line of work as itself, it becomes much more likely that one function of the investment is to make better use — either through economies of scale or through operational integration or sharing of expertise — of the parent’s existing business-related resources.” Container Corporation of America v. Franchise Tax Board, supra, 178. Moreover, two of the plaintiff’s wholly-owned subsidiaries had exclusive rights as sales agents for the copper produced by Tsumeb and O’okiep, and a substantial portion of the copper refined at one of the plaintiff’s refineries was supplied by Tsumeb and O’okiep.

We next consider whether the trial court could reasonably conclude that there was centralization of management or other economies of scale between AMAX and its subsidiaries, O’okiep and Tsumeb. Through its stock ownership in the two corporations, AMAX controlled five of the ten seats on the O’okiep board of directors. Two of the ten O’okiep directors were AMAX directors and three other O’okiep directors were AMAX employees. Eleven of the fifteen Tsumeb directors were either AMAX directors or employees. Further, the parties stipulated that AMAX, together with an unaffiliated corporation, controlled, managed, and made all policy decisions regarding O’okiep and Tsumeb. The trial court could reasonably find that AMAX not only had the “potential” to control O’okiep and Tsumeb but actually exerted such control. F. W. Woolworth Co. v. Taxation & Revenue Department, supra, 362.

Having found functional integration, centralization of management and other economies of scale, and actual control by AMAX over O’okiep and Tsumeb, the trial court concluded that the plaintiff operated its subsidiaries as part of a unitary business. See F. W. Woolworth Co. v. Taxation & Revenue Department, supra, 364. Accordingly, the dividends and capital gain income received by the plaintiff from the sale of its O’okiep and Tsumeb stock constitutes business income, “income . . . derived from . . . intangible property, the acquisition, management and disposition of which constitute integral parts of the taxpayer’s regular trade or business operations . . . .” General Statutes (Rev. to 1975) § 12-218 (2). Such business income “shall not be allocated . . . but shall be apportioned” in accordance with the apportionment scheme of § 12-218 (3). On appeal, we review the factual findings of the trial court to ensure that they were legally, logically and reasonably found, thereby allowing the trial court reasonably to conclude as it did. Ruwet-Sibley Equipment Cor poration v. Stebbins, 15 Conn. App. 21, 25, 542 A.2d 1171, cert. dismissed, 209 Conn. 806, 548 A.2d 437 (1988). Our review of the record discloses ample support for the court’s findings and its conclusion that the plaintiff’s dividend and capital gain income from the sale of its O’okiep and Tsumeb stock was integrally related to its business and thus apportionable under General Statutes (Rev. to 1975) § 12-218 (2).

There is no error.

In this opinion the other judges concurred.

       In addition to being taxed in Connecticut, all or part of the disputed income was also subject to taxation by California, Colorado, New York and Wisconsin and gave rise to an additional aggregate tax liability in those states of approximately $150,000.

       General Statutes (Rev. to 1975) § 12-218 (1) provided in pertinent part: “Interest, taxable dividends and net gains or losses either from sales or book write-offs of intangible assets, less related expenses, of a company having its principal place of business within the state shall be allocated to the state . . . .”

       General Statutes (Rev. to 1975) § 12-218 (2) provided in pertinent part: “[Income] derived from tangible or intangible property, the acquisition, management and disposition of which constitute integral parts of the taxpayer’s regular trade or business operations, shall not be allocated . . . but shall be apportioned . . . . ” (Emphasis added.) Section 12-218 was subsequently amended in 1981 to delete the allocation formula and to provide for a straight apportionment formula only. Public Acts 1981, No. 81-411, § 2.
      The plaintiff does not claim on appeal that the disputed income was to be allocated entirely outside of Connecticut.

       The plaintiff also claims that the defendant’s assessment of a tax on its income by allocation imposes a discriminatory burden on interstate commerce in violation of the commerce clause. U.S. Const., art. I, § 8, cl. 3. Because we agree with the trial court that the commissioner’s assessment of a tax on the plaintiffs income by allocation was improper, we need not address this issue. It is noteworthy, however, that “[a]t least in the interstate commerce context . . . the antidiscrimination principle has not in practice required much in addition to the requirement of fair apportionment.” Container Corporation of America v. Franchise Tax Board, 463 U.S. 159, 171, 103 S. Ct. 2933, 77 L. Ed. 2d 545, reh. denied, 464 U.S. 909, 104 S. Ct. 265, 78 L. Ed. 2d 248 (1983).

       Joint Standing Committee Hearings, Finance, Revenue and Bonding, Pt. 6, 1981 Sess. pp. 1750, 1759-60.

       Cf. Schlumberger Technology Corporation v. Dubno, 202 Conn. 412, 423, 521 A.2d 569 (1987) (concerned the proper characterization of income attributable to plaintiff’s wireline services as apportionable income derived from “the manufacture, sale or use of tangible personal or real property’ ” under General Statutes (Rev. to 1975) § 12-218 [3] [a] and [b]); B. F. Goodrich Co. v. Dubno, 196 Conn. 1, 5, 490 A.2d 991 (1985) (concerned characterization of income under General Statutes § 12-218 [2] providing that “net gains or losses from sales, scrappage, abandonment, book write-offs or rentals of tangible assets . . . shall be allocated to the state”). Neither case concerned the statutory interpretation of “integral” involved in this case.

       Other state courts have used the United States Supreme Court’s explication of the unitary business principle in interpreting their state apportionment statutes. See, e.g., Kraftco Corporation v. Charnes, 636 P.2d 1300 (Colo. App. 1981); In re Occidental Petroleum, slip op. (Cal. State Bd. of Equalization, June 21, 1983); see also Schlumberger Technology Corporation v. Dubno, 202 Conn. 412, 417 n.5, 521 A.2d 569 (1987). “Overall, Connecticut’s statutes for the apportionment of the income of multistate corporations resemble in broad outline the statutory pattern of corporate income taxes in other states, including those that have adopted the Uniform Division of Income for Tax Purposes Act.” Id.

         The parties stipulated that the plaintiff owned, at the time of the stock transfer, 29.556 percent of the stock in Tsumeb and between 21.6 percent and 17.27 percent of the stock of O’okiep.


author: Foti, J.

text:
    City of New Haven v. Thomas Mason
    (6239)
    Spallone, Norcott and Foti, Js.
    Submitted on briefs September 1
    decision released November 15, 1988

      Patricia Cofrancesco and Charles G. Albom filed a brief for the appellant (plaintiff).

      Michael A. Wolak and Alan E. Silver filed a brief for the appellee (defendant).
   Foti, J.

In this action to recover delinquent rental payments, the plaintiff city of New Haven appeals from a judgment rendered against it and in favor of the defendant on his counterclaim.

The trial court found the following facts. The defendant was hired by the plaintiff’s parks department as a chief ranger in March, 1978. Subsequently, the defendant and his family moved into a city owned residence located within the city park system. The defendant remained there until December 31,1984, when he moved out voluntarily. The parties stipulated that at no time did they enter into either an oral or written lease agreement. At the outset of this living arrangement, and for the greater part of his six years there, the defendant did not pay the plaintiff any rent. For several months in 1979, however, the defendant made several payments to the plaintiff totaling $775. Sometime thereafter, the plaintiff initiated a policy requiring all employees living in city owned housing, after July 1, 1981, to pay rent. Anyone living in city owned housing prior to July 1,1981, was not required to make retroactive payments. When the defendant refused to pay rent, the plaintiff began sporadically deducting sums from the defendant’s wages. The total amount deducted was $2447.11.

The plaintiff initiated this action to recover $4902.89, the balance it claims the defendant owed in delinquent rental payments. The defendant counterclaimed to recover $2447.11, the amount of money deducted by the plaintiff from his pay. In his counterclaim, the defendant denied that he owed any rental payments, and claimed that the plaintiff was, therefore, unjustified in making unilateral, involuntary deductions from his pay.

On appeal, the plaintiff claims that the trial court erred (1) in finding that, absent a lease, the defendant was not obligated to pay for his use and occupancy of the premises, (2) in finding the plaintiff was unjustified in deducting sums from the defendant’s wages and thereby awarding the defendant $2447.11, the relief he sought in his counterclaim, and (3) in awarding the defendant $775 for the payments he made to the plaintiff in 1979.

We decline to consider the plaintiff’s first claim of error because it relies on an unpleaded cause of action; Bushnell Plaza Development Corporation v. Fazzano, 38 Conn. Sup. 683, 687, 460 A.2d 1311 (1983); and it was not “distinctly raised at the trial.” Practice Book § 4185. It is a common rule of pleading that “ ‘[t]he allegations of a complaint limit the issues to be decided on the trial of a case and are calculated to prevent surprise to opposing parties.’ ” Bushnell Plaza Development Corporation v. Fazzano, supra, 687, quoting Nash Engineering Co. v. Norwalk, 137 Conn. 235, 239, 75 A.2d 496 (1950). In addition, it is well established that this court is not “bound to consider a claim unless it was distinctly raised at the trial.” (Emphasis added.) Practice Book § 4185. “ ‘The requirement that the claim be raised “distinctly” means that it must be “so stated as to bring to the attention of the court the precise matter on which its decision is being asked.” (Emphasis added.) Woodruff v. Butler, 75 Conn. 679, 682, 55 A. 167 (1903).’ State v. Carter, 198 Conn. 386, 396, 503 A.2d 576 (1986).” State v. Lonergan, 16 Conn. App. 358, 362, 548 A.2d 718 (1988).

For the first time on appeal, the plaintiff asserts that its claim is one for “use and occupancy,” and not, as was litigated at trial and alleged in its complaint, an action to recover delinquent rental payments. The plaintiff’s complaint is devoid of any reference to the term “use and occupancy” or to General Statutes § 47a-3c which provides for the remedy of use and occupancy payments. In addition, the plaintiff never attempted to amend its complaint to include such a claim. Practice Book §§ 175 and 176. Further, the fact that the plaintiffs trial brief and the trial court’s memorandum of decision refer only to rent, indicates that the issue litigated at trial was delinquent rental payments and not use and occupancy. Therefore, the plaintiff’s failure to plead the issue of use and occupancy and to raise it distinctly at trial precludes us from addressing it. Our disposition of this issue renders it unnecessary for us to address the plaintiff’s second claim.

The plaintiff asserts in its third claim of error that the trial court erred in awarding the defendant $775 for payments he made to the plaintiff in 1979, prior to the enactment of the plaintiff’s policy requiring employees living in city owned housing to pay rent. The plaintiff argues that because the defendant failed to request this particular relief in his counterclaim, and to allege facts to support such a claim, the trial court should not have awarded this relief. We agree.

It is a basic rule of pleading that the “ ‘ “allegations of a complaint provide the measure of recovery.” Antonofsky v. Goldberg, 144 Conn. 594, 599, 136 A.2d 338 [1957].’ ” Bushnell Plaza Development Corporation v. Fazzano, supra, 687. “ ‘[A]ny judgment, to be adequate as such, must conform to the pleadings, the issues and the prayers for relief.’ Verraster v. Tynan, 152 Conn. 645, 648, 211 A.2d 150 [1965].” Brill v. Ulrey, 159 Conn. 371, 374, 269 A.2d 262 (1970).

The sole prayer for relief requested by the defendant in his revised counterclaim was $2447.11, the amount deducted from his pay by the plaintiff. The defendant did not allege any facts that would support his recovery of the $775 he paid to the plaintiff in 1979, nor did he request recovery in that amount. Furthermore, the defendant did not move to amend his complaint to conform to the evidence at trial with respect to this claim. Practice Book §§ 175 and 176. Therefore, it was error for the trial court to award the defendant $775.

There is error in part, the judgment is set aside and the case is remanded with direction to render judgment as on file except that the award to the defendant should be reduced by $775.

In this opinion the other judges concurred.

       The plaintiff misstates the trial court’s ruling by claiming that the basis for its decision was the absence of a lease. The essence of the underlying dispute and the factual issue that was decided by the trial court was whether, as a condition of living in the city owned residence, the defendant was required to pay rent. The parties stipulated that there was no oral or written lease. The trial court found not only that there was no formal oral or written lease, but that there was never any implied understanding or agreement between the parties that rent was to be a condition of the defendant’s continuing to reside in the city owned residence. In fact, the trial court found the opposite to be true — that the defendant understood that living in the residence was part of his compensation package. In light of this factual finding, the trial court held for the defendant, reasoning that absent a landlord-tenant relationship, in which both parties understood that rent was a condition of the living arrangement, there could be no obligation on the defendant’s part to pay rent.

       We find the plaintiff’s assertion in its appellate brief that its complaint sought damages for the defendant’s “use and occupancy,” and not for rent, disingenuous for the following reasons. First, the plaintiffs complaint makes no reference to General Statutes § 47a-3c. The term “use and occupancy” is a term of art that has been embodied in General Statutes § 47a-3c, providing the remedy of use and occupancy payments absent a rental agreement. Second, while it is true that the plaintiff did not refer to his claim as either one for “rent” or “use and occupancy,” the plaintiffs complaint described its claim as follows: “As a condition of residing in said park house, the defendant, Thomas Mason, was required to pay the plaintiff City of New Haven $175 per month.” “Rent” is defined as: “An agreed sum paid at fixed intervals by a tenant to his landlord for the use of land or its appendages.” Webster’s Ninth New Collegiate Dictionary. We think a common sense reading of the plaintiff’s description implies that the plaintiff was referring to rent. Third, the plaintiffs trial brief repeatedly refers to its claim as one for “delinquent rent.” Accordingly, we find that the plaintiff’s claim was for rent and not use and occupancy payments.

       General Statutes § 47a-3c provides: “In the absence of agreement, the tenant shall pay the fair rental value for the use and occupancy of a dwelling unit.”


text:
    State of Connecticut v. Donald Wilson, Sr.
    (6653)
    Borden, Daly and O’Connell, Js.
    Argued October 11
    decision released November 15, 1988

      Jerome J. Rosenblum, for the appellant (defendant).

      Rita M. Shair, deputy assistant state’s attorney, with whom were James Bernardi, assistant state’s attorney, and, on the brief, Maria Rodriguez, law student intern, for the appellee (state).
   Per Curiam.

The defendant appeals from the judgment of conviction, after a jury trial, of manslaughter in the first degree with a firearm in violation of General Statutes § 53a-55a. The defendant claims on appeal that the trial court erred (1) in admitting as substantive evidence the prior inconsistent written statement of a witness who testified at trial, and (2) in denying his motions for acquittal and for a new trial. We find no error.

The jury could reasonably have found the following facts. On October 5,1986, at approximately 10:30 a.m., the victim was sitting in his parked car on Eli Avenue in Norwalk. The defendant was driving along Eli Avenue when he saw the victim’s car. The defendant parked his car in the middle of Eli Avenue and walked over to the victim’s car. In his back pocket was a silver handgun.

The defendant approached the victim and began to argue with him. The victim attempted to exit the car, but the defendant prevented him from doing so by blocking the victim’s car door with his knee. The defendant fired one shot at the victim, then told him to stay in the car and not to try to get out. The defendant then fired two more shots at the victim. He then returned his gun to his back pocket and drove away. The victim died as a result of a bullet’s penetrating his heart. Witnesses to the incident testified that they did not see a struggle between the defendant and the victim.

The defendant’s first claim of error is that the trial court erred in admitting as substantive evidence the prior written inconsistent out-of-court statement of a witness, Tracy Johnson. This claim is controlled by State v. Whelan, 200 Conn. 743, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 1598 (1986). Our review of the record indicates that the witness’ out-of-court statement complied with the requirements of Whelan in that it was (1) written, (2) signed by the witness, and (3) made with personal knowledge of the facts about which he testified and was cross-examined. State v. Whelan, supra, 753. Thus, the trial court did not err in admitting into evidence Johnson’s prior written inconsistent statement.

The defendant’s final claim is that the trial court erred when it denied his motions for acquittal and for a new trial. Specifically, the defendant claims that the evidence presented by the state was insufficient to disprove his claim of self-defense.

The state has the burden of disproving the defense of justified use of force; General Statutes § 53a-12 (a); beyond a reasonable doubt. State v. Fullard, 5 Conn. App. 338, 497 A.2d 1041 (1985). “Whether the defense of the justified use of force, properly raised at trial, has been disproved by the state is a question of fact for the jury, to be determined from all the evidence in the case and the reasonable inferences drawn from that evidence.” Id., 341; State v. Corchado, 188 Conn. 653, 663, 453 A.2d 427 (1982). As long as the evidence presented at trial was sufficient to allow the jury reasonably to conclude that the state had met its burden of persuasion, the verdict will be sustained. State v. Dumlao, 3 Conn. App. 607, 613, 491 A.2d 404 (1985). We conclude that the evidence that was admitted at trial was sufficient to disprove the defendant’s claim of self-defense beyond a reasonable doubt.

There is no error.

       The defendant also asks us to reevaluate the holding of our Supreme Court in State v. Whelan, 200 Conn. 743, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 1598 (1986). This court will not reexamine or reevaluate Supreme Court precedent. State v. Thurman, 10 Conn. App. 302, 309 n.5, 523 A.2d 891 (1987). Whether or not Whelan and subsequent cases should be reevaluated is not for this court to decide. See id.


author: Stoughton, J.

text:
    State of Connecticut v. Howard St. Pierre
    (6643)
    O’Connell, Stoughton and Norcott, Js.
    Argued October 18
    decision released November 15, 1988

      Eileen McCarthy Geel, certified legal intern, with whom was Harry Weller, deputy assistant state’s attorney, for the appellant (state).

      Vincent J. Giedraitis, public defender, for the appellee (defendant).
   Stoughton, J.

The trial court granted the defendant’s motion to dismiss a charge of operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes § 14-227a (a). The state, with the permission of the presiding judge, has appealed. We find error.

The parties agree that on July 9, 1987, the defendant was arrested in a parking lot at a 7-Eleven store in Vernon and charged with operating a motor vehicle while under the influence of intoxicating liquor. The defendant moved to dismiss the charge on the ground that “jsjection 14-227a prohibits the operation of motor vehicles in parking lots for more than ten vehicles which are ‘open to public use’ . . . .” The defendant relied on this court’s opinion in State v. Boucher, 11 Conn. App. 644, 528 A.2d 1165 (1987), in which we agreed with the trial court that a parking lot used exclusively by Midas Muffler employees and customers was not “open to public use” as that term is used in General Statutes § 14-212 (5).

Our holding in State v. Boucher, supra, was reversed and the case was remanded with direction to reinstate the information. State v. Boucher, 207 Conn. 612, 619, 541 A.2d 865 (1988). The Supreme Court held that “[a] place is ‘public’ to which the public is invited either expressly or by implication to come for the purpose of trading or transacting business.” Id., 616. It concluded that the legislature, in enacting §§ 14-227a and 14-212 (5), intended to extend the prohibition against operating a motor vehicle while under the influence of intoxicating liquor to any parking area for ten or more cars which “the public” is invited or permitted to use. Id., 619. This conclusion is dispositive of this appeal.

The defendant suggests that the parking area in front of the 7-Eleven store was for six vehicles and separate from the balance of the parking area, and therefore that the rationale of the Supreme Court in State v. Boucher, supra, is not applicable to this case. Aside from the fact that he did not present this as an alternate ground for sustaining the decision of the trial court, see Practice Book § 4013 (a) (1), the facts upon which this claim is based have not yet been presented to and determined by the trial court.

There is error, the judgment is set aside and the case is remanded with direction to reinstate the information charging the defendant with a violation of § 14-227a (a) and to proceed according to law.

In this opinion the other judges concurred.

       General Statutes § 14-227a. “operation while under the influence OF LIQUOR OR DRUG OR WHILE IMPAIRED BY LIQUOR, (a) OPERATION WHILE under the influence. No person shall operate a motor vehicle while under the influence of intoxicating liquor or any drug or both. A person commits the offense of operating a motor vehicle while under the influence of intoxicating liquor or any drug or both if he operates a motor vehicle on a public highway of this state or on any road of a district organized under the provisions of chapter 105, a purpose of which is the construction and maintenance of roads and sidewalks, or on any private road on which a speed limit has been established in accordance with the provisions of section 14-218a, or in any parking area for ten or more cars or on any school property (1) while under the influence of intoxicating liquor or any drug or both or (2) while the ratio of alcohol in the blood of such person is ten-hundredths of one per cent or more of alcohol, by weight.”

       General Statutes § 14-212 provides in pertinent part: “definitions. Terms used in this chapter shall be construed as follows unless another construction is clearly apparent from the language or context in which the term is used or unless the construction is inconsistent with the manifest intention of the general assembly: ... (5) ‘Parking area’ means lots, areas or other accommodations for the parking of motor vehicles off the street or highway and open to public use with or without charge . . . .”


text:
    State of Connecticut v. Miguel A. Ortiz
    (6833)
    Spallone, Stoughton and Norcott, Js.
    Argued October 20
    decision released November 15, 1988

      Nicholas P. Cardwell, for the appellant (defendant).

      Leon F. Dalbec, Jr., deputy assistant state’s attorney, with whom, on the brief, was Seymour Rothenberg, assistant state’s attorney, for the appellee (state).
   Per Curiam.

The defendant appeals from the judgment of conviction rendered after he entered a conditional plea of nolo contendere to the crime of possession of narcotics, General Statutes § 21a-279.

The sole question presented for our resolution is whether the evidence adduced at a hearing on the defendant’s motion to suppress supports the court’s determination that a warrantless search of the defendant’s person and property was conducted with the consent of the defendant.

At a suppression hearing, the state has the burden of establishing by a preponderance of the evidence that the defendant voluntarily consented to the search. United States v. Calvente, 722 F.2d 1019, 1023 (2d Cir. 1983). “[T]he question whether a consent to a search was in fact ‘voluntary’ or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances.” Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973), accord State v. Jones, 193 Conn. 70, 79, 475 A.2d 1087 (1984); State v. Blevins, 13 Conn. App. 413, 417, 536 A.2d 1002 (1988); State v. Davis, 3 Conn. App. 359, 364, 488 A.2d 837 (1985). The voluntariness of the consent is normally decided by the trial court based on the evidence it deems credible along with the reasonable inferences that can be drawn therefrom. State v. Reddick, 189 Conn. 461, 469, 456 A.2d 1191 (1983). “The ultimate question ‘is whether the will of the consenting individual was overborne, or whether the consent was his unconstrained choice.’ ” State v. Blevins, supra, 417, quoting State v. Cobbs, 7 Conn. App. 656, 659, 510 A.2d 213 (1986). The conclusions of the trial court will stand on appeal unless they are clearly erroneous. State v. Zindros, 189 Conn. 228, 244, 456 A.2d 288 (1983), cert. denied, 465 U.S. 1012, 104 S. Ct. 1014, 79 L. Ed. 2d 244 (1984).

The evidence presented at the suppression hearing amply supports the trial court’s finding that the search of the defendant was consensual. The trial court properly denied the defendant’s motion to suppress.

There is no error.


text:
    State of Connecticut v. Eddie Wilson
    (6515)
    Dupont, C. J., Spallone and Foti, Js.
    Argued October 6
    decision released November 22, 1988

      Leopold P. DeFusco, special public defender, for the appellant (defendant).

      Richard F. Jacobson, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Linda Knight, assistant state’s attorney, for the appellee (state).
   Per Curiam.

After a jury trial, the defendant was found guilty of interfering with an officer in violation of General Statutes § 53a-167a (a) and possession with intent to dispense cocaine in violation of General Statutes § 21a-278 (b). The only issue raised by the defendant on appeal is whether the trial court erred in instructing the jury on the elements of interfering with a peace officer. We find no error.

From the evidence introduced at trial, the jury could reasonably have found the following facts. On January 3, 1987, two uniformed Bridgeport police officers observed the defendant participating in what appeared to be a sale of narcotics. As the officers approached the defendant, he walked away from them. When the officers ordered him to stop, he fled on foot. Another uniformed police officer heard the shout, and pursued the defendant. When the officer caught him, he resisted arrest by wrestling with the officer, trying to elbow him and continuing to struggle even after the other officers had arrived on the scene.

On appeal, the defendant claims that the trial court’s jury instructions on the charge of interfering with a peace officer were misleading because they implied that the defendant could be found guilty without the state’s proving, beyond a reasonable doubt, that the defendant possessed the requisite intent to commit the offense.

The defendant neither filed a request to charge nor took an exception to the court’s instruction on the elements of the charge of interfering with an officer, as required by Practice Book §§ 852 and 854 respectively. Ordinarily, this court will not review claims of error not properly preserved for appeal. Practice Book § 4185. Since this claim implicates the defendant’s fundamental constitutional right not to be convicted except upon proof beyond a reasonable doubt of each and every element of the charged offense however, we will review it under the doctrine enunciated in State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973). State v. Washington, 15 Conn. App. 704, 709, 546 A.2d 911 (1988).

To obtain a conviction for interference with an officer, one of the essential elements that the state must prove beyond a reasonable doubt is that the defendant intended to interfere with the performance of an officer’s duties. State v. Flynn, 14 Conn. App. 10, 18, 539 A.2d 1005, cert. denied, U.S. , 109 S. Ct. 226, 102 L. Ed. 2d 217 (1988). “It is . . . constitutionally axiomatic that the jury be instructed on the essential elements of the crime charged.” State v. Williamson, 206 Conn. 685, 708, 539 A.2d 561 (1988). When reviewing a claim of error involving jury instructions that implicates a defendant’s constitutional right, “ ‘[t]he applicable test requires the state to prove beyond a reasonable doubt that, from the viewpoint of the charge as a whole, there is no reasonable possibility that the jury was misled.’ ” State v. Townsend, 206 Conn. 621, 626, 539 A.2d 114 (1988), quoting State v. Sinclair, 197 Conn. 574, 582, 500 A.2d 539 (1985). We have reviewed the trial court’s jury instructions in their entirety, as we are required to do, and conclude that the trial court’s instruction on intent was not misleading.

After reading General Statutes § 53-167a (a) to the jury, the court explained that there were two essential elements that the state must prove beyond a reasonable doubt, and in listing those, did not mention intent. Instead, in the context of explaining the two elements the court gave the following instruction to the jury: “In addition, you must consider whether the defendant intended to interfere with the performance of the peace officer’s duty. Accidental or inadvertent interference is not enough.” (Emphasis added.) The court also gave the jury a general intent charge. The defendant’s objection to that charge is that by instructing the jury to “consider” the defendant’s intent, rather than delineating it as an element that the state was required to prove beyond a reasonable doubt, the jury was misled into believing that intent was not an element of the crime.

Reasonably read, the charge instructed the jury that it must find two essential elements of the particular crime of interference with a peace officer, and that both crimes with which the defendant was charged required proof of intent as an element. The use of the word “consider” did not dilute the necessity of proving, beyond a reasonable doubt, that intent was an element of the crime of interference with a peace officer. See State v. Kurvin, 186 Conn. 555, 565, 442 A.2d 1327 (1982). While it would have been preferable to list intent as one of the three elements of the offense of interference with a peace officer, we are persuaded that the charge, when read as a whole, did not mislead the jury.

There is no error.

       “[General Statutes] Sec. 53a-167a interfering with an officer: CLASS A MISDEMEANOR, (a) A person is guilty of interfering with an officer when he obstructs, resists, hinders or endangers any peace officer or fireman in the performance of his [or her] duties.”

       The portion of the charge that the defendant claims is erroneous is the following:
      “There are two essential elements of the crime of interfering with an officer. One, that the defendant obstructed, resisted, hindered or endangered the peace officer and two, that the conduct of the defendant occurred while the peace officer was in the performance of his duties. . . . Now from the evidence you’ve heard, you should consider whether the defendant obstructed, resisted, hindered or endangered the peace officer. In addition, you must consider whether the defendant intended to interfere with the performance of the peace officer’s duty. Accidental or inadvertent interference is not enough. . . . If you find the state has proven by proof beyond a reasonable doubt that the defendant obstructed, resisted, hindered or endangered a peace officer in the performance of his duties, you will find the defendant guilty of interfering with a peace officer. If you do not so find, you must return a verdict of not guilty.” (Emphasis added.)

       The court charged the jury with respect to general intent as follows: “I should mention to you one other concept and that is intent. Intent is sometimes an element of a criminal offense to be proved by the state beyond a reasonable doubt and it is in this case, as I will later mention to you. Because intent can seldom be proved directly, for no one can look into a man’s mind and determine his intent at any given time, it is proper and usually necessary to infer intent. That is, determine what a person intended by determining what his words and actions were at the particular time in question. And from those words and actions infer or conclude what his intent or purpose was. A person’s intentions may be inferred from the acts which he did commit. To draw such an inference is the privilege of the jury provided only that the inference is a reasonable one. A person acts intentionally with respect to a result or to conduct divided by a statute defining an offense when his conscious objective is to cause such result or engage in such conduct.”