author: Schaller, J.

text:
    Gardner Chapman v. Town of Ellington
    (11597)
    Dupont, C. J., Freedman and Schaller, Js.
    Argued September 30
    decision released December 21, 1993

      Thomas P. Moriarty, for the appellant (plaintiff).

      Susan Boyan, with whom was George Baker, for the appellee (defendant).
   Schaller, J.

In these consolidated tax assessment appeals, the plaintiff property owner, Gardner Chapman, appeals from the judgment of the trial court rendered in favor of the defendant town of Ellington. The principal issues on appeal are whether the trial court improperly found (1) that the town assessor had not committed clerical errors in assessing the plaintiffs property pursuant to General Statutes (Rev. to 1989) § 12-60 and that the plaintiff was, therefore, not entitled to a refund pursuant to General Statutes (Rev. to 1989) § 12-129 for the years 1986, 1987, 1988 and 1989, and (2) that the assessor had not committed gross errors in valuing the property that resulted in the overvaluation of the plaintiff’s property and overpayment of taxes for the years 1986,1987,1988 and 1989. We affirm the judgment of the trial court.

The following facts are relevant to the resolution of this appeal. The plaintiff pm-chased land in Ellington in 1985 and began construction of the Johnny Appleseed Apartments. This apartment complex covered two parcels of land that ultimately contained a total of twelve residential apartment buildings (six buildings on each parcel) and one boiler and laundry building. Each apartment building had ten individual units. Two of the apartment buildings had full basements, one had a half basement and the others did not have basements.

The last revaluation of property relevant to the property involved in this appeal occurred in 1980. In 1986 and 1987, the then town tax assessor, William D. Marsele, completed the initial assessments of the plaintiff’s two parcels of property for the purposes of the grand lists. Marsele also completed assessment cards for the individual buildings located on each parcel during that time. On diagrams within the individual assessment cards, Marsele depicted that six of the buildings had basements, while in fact, only two had full basements and one a half basement. Each building card also contained a section entitled “building computations,” in which the values of the different areas of the building were added to arrive at a total value. Marsele included the value of a basement on each of the cards, even on those cards representing buildings that did not have basements. Marsele testified that he had personally inspected each of the buildings, that he knew all of the buildings did not have basements, and that he included a basement value for each of the buildings “on purpose.” According to the information on the cards, the total value for each building was then multiplied by a factor that took into account the location of the property, and that total was considered the “replacement cost new.” Depreciation of 5 percent was then calculated, and 70 percent of that total was taken to arrive at the assessed value.

The plaintiff claimed at trial, on the basis of the information contained on the individual building assessment cards and the testimony of the plaintiffs expert witness, Wallace L. Inkpen, that Marsele had used a reproduction cost approach as the prime basis for the assessment. Inkpen, an experienced real estate appraiser, testified that many appraisers, in conducting reproduction cost analyses, use the Marshall Valuation Service as a guide for determining the cost to assign to each area of a building. He testified further that the value that Marsele had ascribed to the basements, $8.20 per square foot, was in the range for the cost given a basement by the 1980 Marshall Valuation Service. Inkpen then testified to his opinion that Marsele’s figures represented “a basement cost for this type of structure during that period of time.” As a result of his belief that a cost approach had been used for the assessment, Inkpen also offered his opinion that the inclusion of the value of basements where none existed was a clerical error on the part of the tax assessor. Inkpen testified that he believed that the town had overassessed the plaintiff, but he also testified that he had not conducted an appraisal of the property to determine independently its fair market value. Ink-pen was the only witness called by the plaintiff. On the basis of Inkpen’s analysis regarding errors in assigning values for nonexistent basements, the plaintiff claimed that the total value of his two parcels of property was inflated, and that he had paid excessive taxes on the property.

Marsele testified that, in assessing the plaintiffs property to determine its fair market value, he did not rely solely on a cost approach. He testified that he also used an income approach. He testified that he then used the figure derived from that approach as a basis “to find out . . . matching up with a cost approach, whether we were in the ballpark or not.”

In an effort to explain why each of the buildings, despite their structural differences, had the same assessed value listed on the individual assessment cards, the following colloquy between Susan Boyan, counsel for the town, and Marsele occurred:

“[Boyan]: And they’re [each apartment building] all allocated the same amount whether they have a basement or not; is that correct?
“[Marsele]: That’s right.
“[Boyan]: And can you explain how you arrived at those twelve cards?
“[Marsele]: What I did, and if you just don’t look at the basement areas, but you look at all the areas on there as they’re set up, when I set up his particular project here, you’ll notice that all twelve buildings are essentially identical the way they’re set up. The trend back — this is going back to 1985 and ’86 — was for apartment complexes to, once they were getting approval, there was a lot of [condominium] conversions at that point. What I tried to do with the tax records at that point and set up the cards this way was if there was that type of a conversion, it would be very easy for me to convert these to condominium values after the fact and establish values for closings. . . .”

Boyan later questioned Marsele regarding the impact of changing the individual assessment cards to reflect accurately the existence or nonexistence of abasement in a particular building. The following exchange occurred:

“[Boyan]: If you went back and took off for those buildings, deducted those buildings that don’t have basements, would it change . . . the appraised value on the ones that do have basements?
“[Marsele]: No. What would happen would be . . . if I went back and I changed the format of the way the cards are set up right now, essentially the total value at the end would be essentially the same. It would just be a change in how the format of the card was set up. ” (Emphasis added.)

In its memorandum of decision, the trial court agreed with the plaintiff’s position that if Marsele had relied on the reproduction cost method as set forth in the computation sections of the individual assessment cards to determine the value of the complex, the plaintiffs claim would be justified, as the additional amounts for the nonexistent basements would increase the assessed value. The court found, however, that the figures listed in the computation sections were not used to determine the value of the apartment complex. The court stated that “[o]nce [Marsele] obtained the fair market value for the land and buildings, in toto, he then divided that portion of the value of the property attributable to the residential buildings by twelve .... Thus, the figures denoted in these [computation] sections were not used to arrive at the assessed value of the complex but vice versa.”

The court also stated that the plaintiff had the burden of proving that his property had been overvalued, and found that the plaintiff had not met that burden, by reason of the failure to produce any independent evidence of the fair market value of the property. The court further determined that, because the plaintiff had not established the fair market value of the property, the sole question that remained for the court was the credibility of Marsele’s testimony. The court impliedly deemed credible Marsele’s testimony regarding the assessed value of the property, finding that Marsele had arrived at the value of the apartment complex in the manner that he had described. As a result, the court found that there had been no clerical errors or overvaluation, and rendered judgment for the defendant.

The plaintiff argues on appeal that the trial court’s findings of fact were clearly erroneous. Specifically, the plaintiff challenges the trial court’s findings that the assessor did not make clerical errors in assessing the property by including basements on the assessment cards of buildings without basements, and that the assessor did not overvalue the property through errors in his assessment. We disagree.

The standard of review that we must apply to the trial court’s findings of fact is the clearly erroneous standard. “The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. . . . We cannot retry the facts or pass on the credibility of the witnesses. A finding of fact is clearly erroneous when there is no evidence in the record to support it . . . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. . . . Groton v. Yankee Gas Services Co., 224 Conn. 675, 691, 620 A.2d 771 (1993); Crowell v. Danforth, 222 Conn. 150, 156, 609 A.2d 654 (1992); see also Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 220, 435 A.2d 24 (1980).” (Internal quotation marks omitted.) Pollio v. Conservation Commission, 32 Conn. App. 109, 115, 628 A.2d 20 (1993).

I

We first address the trial court’s finding that Marsele did not make clerical errors in assessing the property. In determining the value of property for tax purposes, the assessor must use the fair market value of the real property. General Statutes § 12-63.

The plaintiff contends that Marsele primarily used a cost approach as set forth in the building computation sections of the assessment cards, leading to the overassessment of the plaintiffs property. At trial, the plaintiff presented his expert, Inkpen, who testified that Marsele had used a cost approach as set forth in the computation sections of the assessment cards and made clerical errors in completing the assessment. Marsele testified, however, that he had used both an income and a cost approach, and stated that the figures assigned to the basements on the building computation sections were included “on purpose.”

“Clerical errors are of a character different from errors of substance, of judgment, or of law. Reconstruction Finance Corporation v. Naugatuck, 136 Conn. 29, 32, 68 A.2d 161 (1949). Where an error is of a deliberate nature such that the party making it at the time actually intended the result that occurred, it cannot be said to be clerical. See Kuhlemeier v. County of Los Angeles, 2 Cal. 2d 257, 261, 40 P.2d 828 (1935).” National CSS, Inc. v. Stamford, 195 Conn. 587, 596, 489 A.2d 1034 (1985). “ ‘[I]n a case tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony.’ ” Newbury Commons Ltd. Partnership v. Stamford, 226 Conn. 92, 99, 626 A.2d 1292 (1993), quoting Kimberly-Clark Corp. v. Dubno, 204 Conn. 137, 153, 527 A.2d 679 (1987). On appeal, this court will not retry the facts or pass on the credibility of witnesses. Newbury Commons Ltd. Partnership v. Stamford, supra, citing Nor’easter Group, Inc. v. Colossale Concrete, Inc., 207 Conn. 468, 473, 542 A.2d 692 (1988).

The trial court deemed credible the testimony of Marsele regarding his method of assessment and found that no clerical errors had been made. Since our review of the evidence indicates that the trial court’s finding is supported, we conclude that the trial court was not clearly erroneous in finding that Marsele had not made clerical errors in the assessment.

II

We next address the trial court’s finding that the plaintiff’s property had not been overvalued due to gross errors in the assessment. Under General Statutes § 12-60, the true and actual value of real property is considered to be the fair market value of the property. “The ultimate decision for the [trial] court is whether, considering all of the evidence . . . the plaintiff has proved by a fair preponderance of the evidence that any of the assessments on its property were illegal or excessive. Our Supreme Court has noted that this is a difficult burden. . . . [P]roper deference must be given to the judgment and experience of assessors. ... In applying this principle, [t]he law contemplates that a wide discretion is to be accorded to assessors .... Only if the court finds that the property has been overvalued by the assessors, can it exercise its power to correct the valuation. . . .’’(Citations omitted; emphasis added; internal quotation marks omitted.) Midway Green Corp. v. Board of Tax Review, 8 Conn. App. 440, 442, 512 A.2d 984 (1986).

Although Inkpen testified that he believed the property was overassessed, he had not appraised the property to determine its fair market value. Inkpen was the only witness for the plaintiff. As a result, the trial court found that the plaintiff had not met its burden of proof that the property was overvalued, as the plaintiff presented no independent evidence of the fair market value of the two parcels of property. Upon review of the record, we conclude that the evidence supports the trial court’s determination, and that the finding that no overvaluation had occurred is not clearly erroneous.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff originally challenged the assessment of his property on the grand lists for 1986,1987,1988 and 1989, through two applications to the town’s board of tax review. The plaintiff had first requested that the assessor and board of tax review correct the alleged clerical errors and authorize a tax refund for overpayment due to the alleged clerical errors.

        The plaintiff next alleged that the tax assessor had made errors resulting in the overvaluation of his property. The Ellington board of tax review rejected the plaintiff’s claims in both applications for review.
      The plaintiff then took two appeals to the Superior Court. Since the two cases evolved from the same alleged errors in assessment, they were consolidated for the purposes of trial.

       At the time this case was brought, General Statutes (Rev. to 1989) § 12-60 provided in pertinent part: “Any clerical omission or mistake in the assessment of taxes may be at any time corrected ... by the assessors or board of tax review . . . .’’An amendment to this statute that did not become effective until October 1, 1990, included a statute of limitations period of “three years following the tax due date relative to which such omission or mistake occurred. . . .” Public Acts 1990, No. 90-101, § 1. Because the defendant did not claim that the statute of limitations barred the defendant from raising his claim of clerical error for any year, we do not consider the applicability of the new statute of limitations. See footnote 3.

       At the time this case was brought, General Statutes (Rev. to 1989) § 12-129 provided in pertinent part: “Any person . . . who, by reason of a clerical error on the part of the assessors . . . pays a tax in excess of that which should have been assessed against his property, or who is entitled to a refund because of the issuance of a certificate of correction, may make application in writing to the collector of taxes for the refund of such amount. Such application shall be made within six years from the date of payment and shall contain a recital of the facts and shall state the amount of the refund requested. . . .’’An amendment to § 12-129 limiting the application period to three years became effective October 1, 1990. Public Acts 1990, No. 90-101, § 2. The defendant did not claim that the new statute of limitations barred the plaintiff from contesting the tax assessments made in any of the years on the ground that the assessor committed clerical errors. In fact, the defendant conceded at oral argument that it believed that the six year statute of limitations applied to this case. As a result, we will not address the impact, if any, of the new statute of limitations on this case.

       Valuation of the property in this case concerns two statutes. General Statutes J 12-63 provides: “The present true and actual value of land classified as farm land pursuant to section 12-107c, as forest land pursuant

        to section 12-107d, or as open space land pursuant to section 12-107e shall be based upon its current use without regard to neighborhood land use of a more intensive nature, provided in no event shall the present true and actual value of open space land be less than it would be if such open space land comprised a part of a tract or tracts of land classified as farm land pursuant to section 12-107c. The present true and actual value of all other property shall be deemed by all assessors and boards of tax review to be the fair market value thereof and not its value at a forced or auction sale.” (Emphasis added.)
      General Statutes § 12-63b sets forth the methods for gauging the fair market value of certain property that is used primarily for rental income. This statute is discussed in detail in footnote 12.

       With regard to this second claim, the town pleaded a special defense that the defendant was barred by the statute of limitations in General Statutes § 12-118 from pursuing the appeal for the years 1986,1987 and 1988. The trial court did not rule on this defense. The plaintiffs appeal from the trial court’s judgment on the first claim requires a review of the same set of facts and alleged errors for all four years. As a result of our determination that the trial court’s judgment must be affirmed, we need not discuss further the viability of the town’s special defense.

       Marsele was town tax assessor from 1978 to 1988.

       The apartment complex was constructed in two phases. Phase one (six apartment buildings) was completed in 1986. Phase two (six apartment buildings and the boiler-laundry building) was completed in 1987.

       On each assessment card, the value of the basement was listed as $41,980 (5120 square feet per basement multiplied by $8.20 per square foot).

       When called as a witness by the town, Inkpen engaged in the following colloquy with Susan Boyan, counsel for the town:
      “[Boyan]: And you’ve conducted an appraisal on the Johnny Appleseed Apartments?
      “[Inkpen]: No, I didn’t conduct an appraisal.
      * * *
      “[Boyan]: And is it your testimony that you did not make any determination whether or not [the town’s assessment was] the fair market value of the property as of 1980?
      “[Inkpen]: No, I didn’t.
      * * *
      “[Inkpen]: [My involvement in the matter] was limited to consulting. I informed the property owner that I had found what I perceived to be a clerical error on the basement . . . area, and that he was overassessed. And that was the extent of my consultation.”

       Marsele also testified that the town would normally use a market approach, where sales of similar buildings would be compared to determine the fair market value of a particular building. He further testified that there were no comparable market sales of apartment complexes at the time of the 1980 revaluation, and, thus, this method could not be used to assess the plaintiff’s property in 1986 and 1987. He did note that he is now able to verify his assessment by comparing his assessment figures to market sales of apartment complexes occurring in 1985 and 1986. He further testified at trial that it was Ms opinion that the assessments did reflect fair market value of the plaintiffs two parcels.

       The court stated that “[i]f Marsele’s testimony is to be believed, despite the curious procedure employed, no clerical error occurred and the assessment was not affected by the misinformation contained on the building cards.” (Emphasis in original.) The court further described Marsele’s procedure in assessing the property as “awkward,” but nonetheless found his testimony credible. Although, after examining all the evidence, we affirm the judgment of the trial court, we do not condone Marsele’s use of incorrect information regarding the basements on public documents.

       See footnote 4. General Statutes § 12-63b further prescribes the method for obtaining the fair market value, as required by General Statutes § 12-63, of certain rental income real property as follows: “[W]ith respect to . . . property [where] there is insufficient data in such town based on current bona fide sales of comparable property which may be considered in determining such value, [the assessor] shall determine such value on the basis of an appraisal which shall include to the extent applicable with respect to such property, consideration of each of the following methods of appraisal: (1) Replacement cost less depreciation, plus the market value of the land, (2) the gross income multiplier method as used for similar property and (3) capitalization of net income based on market rent for similar property. . . .
      “(b) For purposes of subdivision (3) of subsection (a) of this section and, generally, in'its use as a factor in any appraisal with respect to real property used primarily for the purpose of producing rental income, the term ‘market rent’ means the rental income that such property would most probably command on the open market as indicated by present rentals being paid for comparable space. In determining market rent the assessor shall consider the actual rental income applicable with respect to such real property under the terms of an existing contract of lease at the time of such determination.”
      The plaintiff raised, for the first time at oral argument, the issue that § 12-63b requires the assessor to consider all three methods of valuation in conducting the assessment. “[W]e do not review this claim raised for the first time on appeal. Rydingsword v. Liberty Mutual Ins. Co., [224 Conn. 8, 9-10 n.1, 615 A.2d 1032 (1992)]; Cahill v. Board of Education, 187 Conn. 94, 99-100, 444 A.2d 907 (1982). ‘Only in the most exceptional circumstances will this court consider a claim that was not raised in the trial court. . . . Such exceptional circumstances may occur where a new and unforeseen constitutional right has arisen between the time of trial and appeal or where the record supports a claim that a litigant has been deprived of a fundamental constitutional right and a fair trial. ... An exception may also be made where consideration of the question is in the interest of the public welfare or of justice between the parties.’ (Citations omitted.) Cahill v. Board of Education, supra.” D’Addio v. Connecticut Ins. Guaranty Assn., 30 Conn. App. 729, 736, 622 A.2d 609, cert. denied, 226 Conn. 903, 625 A.2d 1375 (1993). We conclude that none of these exceptions is applicable in this case and, accordingly, we will not review this claim.

       Marsele testified to having used a cost approach, but did not indicate that he had used the cost approach as set forth in the computation sections of the cards.


source: Caselaw Access Project

author: Freedman, J.

license: Public Domain

text:
    S.I.S. Enterprises, Inc., et al. v. Zoning Board of Appeals of the City of Bristol et al.
    (11794)
    Landau, Freedman and Schaller, Js.
    Argued October 27
    decision released December 21, 1993

      Alfred F. Morrocco, Jr., with whom was Thomas Conlin, for the appellants (plaintiffs).

      Ann T. Baldwin, assistant corporation counsel, for the appellee (named defendant).
   Freedman, J.

The plaintiffs, S.I.S. Enterprises, Inc., Socrates Diacosawas and Irene Diacosawas, appeal from the judgment of the trial court dismissing their appeal from the decision of the defendant zoning board of appeals of the city of Bristol. The plaintiffs claim that the trial court improperly found that (1) there were a sufficient number of members of the board present when the decision was made on the plaintiffs’ application, (2) a zoning board of appeals may accept a proxy vote from an absent board member, (3) the board did not act illegally, arbitrarily or contrary to its own regulations and the provisions of the General Statutes in rendering its decision on the plaintiffs’ application. The plaintiffs further claim that the findings of the trial court were not supported by the record and that the plaintiffs’ application should be granted by default under the time provisions of General Statutes § 8-7d (a). We reverse the judgment of the trial court.

The following facts were found by the trial court. The plaintiffs are the owners of real property located in Bristol, part of which is in a single-family residential zone. On May 31, 1991, the plaintiffs applied to the defendant board to obtain a variance of the Bristol zoning regulations related to access to nonresidential parking through a residential zone, minimum number of parking spaces, size of the street yard, front yard parking, and the expansion of a nonconforming building by more than 25 percent. The plaintiffs’ application for a variance appeared on the board’s agenda seven times in a seven month period. The first time was a public hearing scheduled for July 10,1990. That hearing was continued at the request of the plaintiffs. At the second public hearing, held on September 4, 1990, the board heard testimony from the plaintiffs’ attorney, a neighboring landowner’s attorney, and six other area residents. One of the five board members then disqualified himself and, at the request of the plaintiffs’ attorney, the vote was postponed until another member, not present, could review the tape recording of the hearing.

At the third meeting of the board, held on October 2, 1990, the chairman explained that due to new appointments and additional disqualifications there were still only four members available to vote on the application. The board continued the matter to allow the chairman to meet with the corporation counsel for the city and the mayor. At the fourth meeting of the board, held on November 7,1990, the plaintiffs requested, and the board granted, a postponement until the Bristol zoning commission acted on a pending application for a special permit application. At the fifth meeting, held on January 2,1991, the matter was again postponed as the zoning commission had not yet acted on the special permit application. On February 4,1991, the sixth meeting of the board took place and the matter was again postponed because one board member was absent.

The final meeting of the board was held on February 8, 1991, with three board members present, all of whom had participated in the public hearing. One board member who had participated in the public hearing was in a hospital. All other members and alternates had previously disqualified themselves. The hospitalized member sent to the meeting via a city official a sealed envelope containing his vote. The envelope had the following written on it: “If my position on this vote as contained herein is not acceptable to all parties in this matter by common consent, this envelope should be destroyed, unopened, by shredding.” Although the plaintiffs’ attorney and the attorney for an opponent to the application objected to its use, the board members present decided to use the vote contained in the envelope. The vote was taken, including that in the envelope, and the result was four to none to deny the application. The plaintiffs appealed the board’s decision to the trial court. The trial court dismissed the plaintiffs’ appeal and the appeal to this court followed.

General Statutes § 8-5 (a) provides in pertinent part that “[i]n each municipality having a zoning commission there shall be a zoning board of appeals consisting of five regular members and three alternate members, unless otherwise provided by special act. ...” There is no special act pertaining to the makeup of the zoning board of appeals of the city of Bristol. General Statutes § 8-5a sets forth the way in which the alternate members shall be chosen in the event of the absence of a regular member. In order for the zoning board of appeals to vary the application of any zoning bylaw, ordinance, rule, or regulation, there must be the concurring vote of four members of such board. General Statutes § 8-7.

The trial court, relying on St. John’s R. C. Church v. Board of Adjustment or Appeals, 125 Conn. 714, 720, 8 A.2d 1 (1939), found that a quorum was all that was required for the board to act on the plaintiffs’ application. Since here the board was composed of five members, the trial court reasoned that the three members present were a majority and constituted a quorum. The St. John’s decision quoted Strain v. Mims, 123 Conn. 275, 281, 193 A. 754 (1937), in which our Supreme Court had stated that “ ‘[i]n the absence of legislative restriction, the general rule is that a committee or commission performing such functions as those exercised by the zoning commission in this case can take valid action at a meeting at which all members have proper notice and at which a majority are present.’ ” St. John’s R. C. Church v. Board of Adjustment or Appeals, supra. The board urges us to rely on Ghent v. Zoning Commission, 220 Conn. 584, 600 A.2d 1010 (1991), in which our Supreme Court again cited Strain with approval and quoted the same general rule regarding valid action at a meeting where there is a majority present. Such reliance, here, would be misplaced.

Here, unlike in St. John’s where there were four members of the board present and voting, and unlike in Ghent, where the action of the zoning commission was to amend the zoning regulations, which required the vote of only a majority of the commission, the plain-

tiffs sought a variance of the zoning regulations, which could be granted only by the concurring vote of four members of the zoning board of appeals and could not be granted by a simple majority of a five member board. At the time of the St. John’s decision, the predecessor to General Statutes § 8-7, General Statutes (1930 Rev.) § 428, also required the concurring vote of four members of the zoning board of appeals to vary the zoning regulations. There, the court held that “[t]he action of the four members of the board present at the executive session complied with the provisions of [§ 428].” St. John’s R. C. Church v. Board of Adjustment or Appeals, supra. A vote taken with fewer than four members present and voting, however, would create the anomaly of allowing the board to vote under circumstances where it would be impossible to grant a variance even if all of the members present vote in favor of the variance. Reading General Statutes §§ 8-5 and 8-7 together, we come to the inescapable conclusion that, since the concurring vote of four members of a zoning board of appeals is required to vary the zoning regulations, a zoning board of appeals may not act unless there are at least four qualified members present and voting. “[Compelling principles of statutory construction . . . require us to construe [statutes] in a manner that will not thwart [their] intended purpose or lead to absurd results. . . . We must avoid a construction that fails to attain a rational and sensible result that bears directly on the purpose the legislature sought to achieve. . . .” (Citations omitted; internal quotation marks omitted.) Fairfield Plumbing & Heating Supply Corp. v. Kosa, 220 Conn. 643, 650-51, 600 A.2d 1 (1991).

We must decide, therefore, whether the actual presence of three members at the meeting of the board where the plaintiffs’ application was denied when taken together with the absentee ballot of the member who was in a hospital and not present was tantamount to there being four qualified members present and voting. We conclude that it is not. “It is a well-settled rule that when municipal councils or boards . . . are called upon to perform . . . acts involving discretion and judgment in administering the public affairs, they can only act at authorized meetings duly held. The council . . . must meet and act as a board or council. The members cannot make a valid determination binding upon the corporation by their assent separately and individually expressed. . . . Wherever a matter calls for the exercise of deliberation and judgment, it is right that all parties and interests to be affected by the result should have the benefit of the counsel and judgment of all the persons to whom has been intrusted the decision. ... All the benefit, in short, which can flow from the mutual consultation, the experience and knowledge, the wisdom and judgment of each and all the members, is endangered by any other rule.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Jack v. Torrant, 136 Conn. 414, 420, 71 A.2d 705 (1950).

When four out of five votes must be in the affirmative to vary the zoning regulations, the applicant is entitled to have the matter thoroughly debated and discussed by all of those who will be voting, present and participating at the time the vote is taken. It is not uncommon for one to enter a meeting with one result in mind and to have a change of mind after hearing a thoughtful discussion and analysis and expression of opinions by fellow board members. Even though we now know that the absent commissioner was voting against the plaintiffs application, it is impossible to know what the outcome would have been had the proper debate taken place among all four members. “A valid vote can occur only when agency members are present and convened together at a public meeting. The vote of an absent member cannot be counted even if the position of the absent member is known to other agency members.” 9 Connecticut Practice, R. Fuller, Land Use Law and Practice (1993) § 21.3.

The judgment is reversed and the case is remanded with direction to render judgment sustaining the plaintiffs’ appeal and remanding the matter to the defendant zoning board of appeals for a new hearing consistent with this opinion.

In this opinion the other judges concurred.

       Also named as defendants in the appeal to the trial court were the town clerk of the city of Bristol and the following members of the defendant board: Joseph A. Lanosa, Gilíes H. Angers, Bertrand F. Bouvier, Bernard J. Brozowski, Arthur J. Ward and Jesse Morton. At the time of trial, the action was withdrawn as to all defendants except the zoning board of appeals of the city of Bristol.

       Because we reverse the judgment of the trial court on the first and second issues raised by the plaintiffs, regarding the number of members of a zoning board of appeals present and voting necessary to act on an application for a variance, we need not address the remaining issues. We point out, however that the issue relating to automatic approval for failure to meet the statutory time limits as it applies to this case has been dealt with in Leo Fedus & Sons Construction Co. v. Zoning Board of Appeals, 225 Conn. 432, 623 A.2d 1007 (1993). In Fedus, which was decided after the briefs had been filed in this matter, our Supreme Court held that decisions of a zoning board of appeals are not subject to automatic approval because of the board’s failure to comply with the mandates of General Statutes § 8-7d (a).

       The plaintiffs refer throughout their brief to this envelope and its contents as a “proxy vote.” This, of course, is a misnomer. As the defendant aptly points out in its brief, a proxy is a substitution of someone for another or a deputation of one to represent or act for another. The envelope and its contents would be more correctly referred to as an “absentee vote.”

       General Statutes § 8-5a provides: “If a regular member of a zoning board of appeals is absent, he may designate an alternate from the panel of alternates to act in his place. If he fails to make such designation or if he is disqualified, the chairman of the board shall designate an alternate from such panel, choosing alternates in rotation so that they shall act as nearly equal a number of times as possible. If any alternate is not available in accordance with such rotation, such fact shall be recorded in the minutes of the meeting.”


author: Landau, J.

text:
    State of Connecticut v. Derek Lamar Lewis
    (10947)
    Lavery, Landau and Freedman, Js.
    Argued September 29
    decision released December 21, 1993

      James M. McKay, assistant 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 Gerard Eisenman, assistant state’s attorney, for the appellee (state).
   Landau, J.

The defendant appeals from his conviction, rendered after a jury trial, of robbery in the first degree in violation of General Statutes §§ BSa-S and 53a-134 (a) (3). The defendant claims that the trial court improperly (1) denied his posttrial motion for judgment of acquittal because there was insufficient evidence from which the jury could find the defendant guilty beyond a reasonable doubt, and (2) intervened during testimony of a state’s witness, which reflected favorably upon the witness’ credibility, thereby depriving the defendant of a fair and impartial judge and jury. We agree with the defendant’s first claim and reverse the judgment of the trial court. Because this is dispositive of the appeal, we need not address the remaining claim.

The jury could have reasonably found the following facts. On November 20,1991, Kim Goldsmith, an assistant manager of Arby’s Restaurant at the Trumbull Shopping Park, and the defendant, also an Arby’s employee, were working alone in the restaurant between 8 and 9 p.m. Goldsmith was taking food orders from customers and the defendant was preparing the food orders in the kitchen area located in the rear of the premises. At approximately 8:50 p.m., Goldsmith observed the defendant talking to Nelson Castillo at an employee’s gate. Goldsmith told the defendant to return to work.

At the 9 p.m. closing time, Goldsmith lowered the restaurant’s electronic gate to counter level, and he and the defendant cleaned the restaurant equipment. Goldsmith emptied the cash drawers and counted the money. At about 9:50 p.m., while Goldsmith was working at his desk, he was approached from behind. A hand covered his eyes and a knife was placed at his throat. The attacker called Goldsmith by name and told him that if he cooperated he would not be harmed. The attacker then shoved Goldsmith into a nearby walk-in freezer. As Goldsmith struggled to keep the freezer door from closing, the attacker flailed the knife up and down in the freezer doorway. Goldsmith then forced the freezer door open, and ran out of the restaurant into the mall hallway yelling for assistance. His attacker alsp fled the restaurant but in the opposite direction. The security gate, which could be operated only from within the restaurant, was fully open as the two fled.

Anthony Silva, a mall maintenance worker, heard the disturbance and ran to the restaurant. Inside Silva saw the defendant who pointed out the fleeing attacker, and Silva chased after the attacker. The defendant entered the hallway where Goldsmith was standing and asked what had happened. Goldsmith told him that he had just been robbed, and asked the defendant where he had been. The defendant said he had been in the bathroom and then ran down the hallway after Silva.

Meanwhile, Silva had caught the assailant who was identified as Castillo. The knife used in the robbery was recovered and determined to be from the restaurant. Money had been stolen but was not recovered. Goldsmith told police officers he suspected that the defendant was involved in the robbery.

The defendant argues that the state’s evidence was not sufficient to prove beyond a reasonable doubt that he was an accessory to robbery in the first degree. The state contends that the facts presented and the inferences that can be properly drawn support a guilty verdict.

“ ‘When reviewing a sufficiency of the evidence claim, we first examine the evidence in the light most favorable to upholding the jury’s verdict. State v. Avis, 209 Conn. 290, 309, 551 A.2d 26 (1988), cert. denied, 489 U.S. 1097, 109 S. Ct. 1570, 103 L. Ed. 2d 937 (1989); State v. Rice, 25 Conn. App. 646, 650, 595 A.2d 947 (1991). We then determine on the basis of the facts established and the inferences that reasonably could be drawn from those facts whether the jury reasonably could have concluded that the cumulative effect of the evidence established the defendant’s guilt beyond a reasonable doubt. State v. Famiglietti, 219 Conn. 605, 609, 595 A.2d 306 (1991); State v. Hopes, 26 Conn. App. 367, 376, 602 A.2d 23, cert. denied, 221 Conn. 915, 603 A.2d 405 (1992). We note that the probative force of the evidence is not diminished because it consists, in whole or in part, of circumstantial evidence rather than direct evidence. State v. Robinson, 213 Conn. 243, 254, 567 A.2d 1173 (1989).’ State v. Lago, 28 Conn. App. 9, 30, 611 A.2d 866, cert. denied, 223 Conn. 919, 614 A.2d 826 (1992). Our inquiry into whether the evidence in the record would support a finding of guilt beyond a reasonable doubt does not require us to ask if we believe that the evidence established guilt beyond a reasonable doubt, but rather if ‘any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ (Emphasis in original.) State v. Boykin, 27 Conn. App. 558, 563-64, 609 A.2d 242, cert. denied, 223 Conn. 905, 610 A.2d 179 (1992). Once a defendant has been found guilty of the crime charged, we conduct our judicial review of all of the evidence in the light most favorable to the prosecution. Id., 564.” State v. Hamilton, 30 Conn. App. 68, 71-72, 618 A.2d 1372, cert. granted, 225 Conn. 910, 621 A.2d 290 (1993).

“When applying the sufficiency of the evidence test, the court must ensure that [e]ach essential element of the crime charged . . . be established by proof beyond a reasonable doubt, and although it is within the province of the [trier] to draw reasonable, logical inferences from the facts proven, [it] may not resort to speculation and conjecture. . . . Where it cannot be said that a rational trier of fact could find guilt proven beyond a reasonable doubt, then, a conviction cannot constitutionally stand, as it is violative of due process under the fourteenth amendment. . . . [T]he burden rested upon the prosecution to prove the guilt of the accused, i.e., to prove each material element of the offense charged beyond a reasonable doubt.” (Citations omitted; internal quotation marks omitted.) State v. Lee, 32 Conn. App. 84, 97-98, 628 A.2d 1318, cert. denied, 227 Conn. 924, 632 A.2d 702 (1993).

To prove accessory liability for the crime of robbery in the first degree under General Statutes § 53a-8, the state must establish beyond a reasonable doubt that the defendant had solicited, requested, commanded, or importuned Castillo to commit the crime of robbery in the first degree. “To justify a conviction as an accessory, the state must prove both that the defendant had the intent to aid the principal and that, in so aiding, he had the intent to commit the crime. State v. Foster, 202 Conn. 520, 525-26, 522 A.2d 277 (1987); In re Elieser C., 14 Conn. App. 445, 449, 541 A.2d 528 (1988). “Mere presence as an inactive companion, passive acquiescence, or the doing of innocent acts which may in fact aid the one who commits the crime must be distinguished from the criminal intent and community of unlawful purpose shared by one who knowingly and willingly assists the perpetrator of the offense in the acts which prepare for, facilitate, or consummate it. State v. Laffin, 155 Conn. 531, 536, 235 A.2d 650 (1967). State v. Smith, 15 Conn. App. 122, 127, 543 A.2d 301 [cert. denied, 209 Conn. 805, 548 A.2d 441] (1988).” (Internal quotation marks omitted.) State v. Fudge, 20 Conn. App. 665, 668, 569 A.2d 1145, cert. denied, 214 Conn. 807, 573 A.2d 321 (1990).

At trial, no evidence was presented to establish that the defendant had requested, solicited, commanded, or importuned Castillo to rob the manager of Arby’s restaurant at knifepoint. The defendant’s conversation with Castillo at the employees’ door cannot be construed as an act soliciting Castillo for the commission of the crime charged. Goldsmith, the only witness to the conversation, did not hear any such request, or any discussion. Construing this evidence in the light most favorable to sustaining the guilty verdict, it is not sufficient to establish beyond a reasonable doubt that the defendant requested, solicited, commanded, or importuned Castillo. No nexus between the two men was demonstrated. While the jury may draw from the facts proven any reasonable, logical inferences, it “may not resort to speculation [or] conjecture.” State v. Morrill, 193 Conn. 602, 608, 478 A.2d 994 (1984). The jury could not have reasonably and logically concluded beyond a reasonable doubt that, in their doorway conversation, the defendant solicited Castillo to commit robbery in the first degree. The defendant and Castillo did not know each other. Yet, even if they were acquainted, that fact alone would not incriminate the defendant. The inference that solicitation, an essential element of proving accessory liability, was the result of the conversation between the defendant and Castillo is purely speculation and conjecture on the part of the jury. Thus, we conclude that the cumulative effect of the evidence is not sufficient to establish the defendant’s guilt of accessory liability beyond a reasonable doubt.

The judgment is reversed and the case is remanded with direction to render a judgment of acquittal.

In this opinion the other judges concurred.

       General Statutes § 53a-8 (a) provides: “A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender.”

       General Statutes § 53a-134 (a) provides in pertinent part: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery ... or of immediate flight therefrom, he or another participant in the crime ... (3) uses or threatens the use of a dangerous instrument . . . .”

       The state charged that the defendant “did solicit, request, command and importune” Castillo to commit robbery. General Statutes § 53a-8 assigns accessory liability to anyone “who solicits, requests, commands, importunes or intentionally aids another person to engage in” criminal conduct. That the state did not include “intentionally aids” to its charge is immaterial for the purpose of our analysis.

       Castillo, who pleaded guilty to the Arby’s robbery, testified on direct examination at the defendant’s trial that the defendant had asked him to commit the crime and had provided him with the knife. Because Castillo invoked his fifth amendment right against self-incrimination and refused to submit to cross-examination, the trial court properly ruled his testimony be stricken. State v. Roma, 199 Conn. 110, 117, 505 A.2d 717 (1986). As a result, the jury could not consider the only direct evidence linking the defendant to the crime charged.

       “An accessory must have both the intent to help the principal and the intent to commit the crime. State v. Vincent, 194 Conn. 198, 207, 479 A.2d 237 (1984).” State v. Smith, 15 Conn. App. 122, 127, 543 A.2d 301 (1988).


text:
    Jacques All Trades Corporation v. Laverne Brown et al.
    (11653)
    Dupont, C. J., Landau and Schaller, Js.

      Argued September 23
    decision released December 21, 1993

      Joseph C. Morelli, for the appellant-appellee (plaintiff).

      George M. Purtill, with whom was R. Richard Croce, for the appellant-appellee (named defendant).

      Evans Jacobs, Jr., for the appellant-appellee (defendant city of Hartford).
   Schaller, J.

In this contract action for payment on completed home improvements, the plaintiff, Jacques All Trades Corporation, appeals from the amended judgment of the trial court rendered on August 4,1992, in favor of the defendant Laverne Brown on count one of the plaintiff’s complaint. The court found the defendant city of Hartford, which held the majority of the funds at issue pursuant to its home rehabilitation loan program, liable on count two of the plaintiff’s complaint. In addition, the court rendered judgment in favor of the plaintiff on all counts of Brown’s counterclaim. Both defendants have filed cross appeals.

The dispositive issue on appeal is whether the trial court misconstrued count one of the plaintiff’s complaint, and, as a result, improperly rendered judgment.

The following facts are pertinent to this appeal. In 1988, Brown owned a single-family dwelling in Hartford. Through federal funding, the Hartford department of housing and community development issued low interest home rehabilitation loans for qualified homeowners. In the spring of 1988, Brown applied for a low interest housing rehabilitation loan. The city granted Brown’s application and solicited bids for the work that it authorized on Brown’s house. Brown accepted the plaintiff’s bid of $16,350.

The plaintiff signed an “agreement for housing rehabilitation” (main contract) on August 26, 1988, and Brown signed on September 6,1988. A representative of the city had drafted the agreement. The agreement contained numerous provisions outlining the role of the city in the project. Despite the active involvement of the city in this project, it was required that the agreement be signed by only the plaintiff-contractor and the owner of the property, Brown.

The agreement, without detailing the remodeling work to be completed, specified that the price for the rehabilitation work would be $20,150, that work would commence within thirty days of a written proceed order, and that such work would be completed within 120 days of commencement. The $20,150 included the cost of additional work on the second floor bathroom, which the city was expected to authorize. On September 7, 1988, the city executed an “additional work authorization,” thus formally consenting to the additional remodeling of the second floor bathroom for $3800. The plaintiff previously had agreed to this figure on August 26,1988, and Brown likewise had agreed on September 6, 1988.

The plaintiff and Brown, on August 10, 1988, had entered into an entirely separate agreement regarding the bathroom renovations at a cost of $6021. In the September 6,1988 agreement, however, the city authorized work at a cost of only $3800, and this amount was included in the agreement for housing rehabilitation. Thus, the city now agreed to pay $20,150 (the original $16,350 plus $3800). Sal Rizza, the construction manager for the city, testified that, from the city’s perspective, the August 10, 1988 agreement between the plaintiff and Brown was void. He further testified, however, that Brown and the plaintiff could still negotiate for additional work beyond that included in the agreement for housing rehabilitation, for which Brown would pay with her own funds.

An order to proceed was issued by Brown on September 16,1988. The plaintiff commenced work in late September and the president of the plaintiff corporation, Jacques Picotin, thought that the plaintiff had completed work on February 28,1989. As a result, the plaintiff issued a notice to Brown on March 20, 1989, requesting a payment of $8749.32. This amount represented the cost of work that the plaintiff had calculated to exceed the loan amount of $20,150, which the plaintiff believed should be paid directly by Brown. Picotin conceded, however, that, while he thought that the plaintiff had completed the work as of February 28, 1989, the plaintiff actually was required by Rizza to return to the premises in April, 1989, to finish placing shingles on a portion of the roof.

Rizza testified that, after the completion of the work, he brought the plaintiff and Brown together for a settlement meeting on June 6,1989, to finalize the project and to authorize payment to the plaintiff. At the conference, Brown and the plaintiff first signed a change orders document, which itemized the bathroom work completed by the plaintiff and stated that the cost of the bathroom renovations totalled $8603.64. The change orders document stated that the payment from the city on that amount was $3800, with the $4803.64 balance payable by Brown.

On redirect examination, Rizza concurred that Brown agreed to sign the change orders document, stating that she would pay $4803.64, and agreed to sign the contract payment authorization form so that the city could pay the plaintiff the $20,150. Rizza testified that on June 6, 1989, he and Brown had signed the contract payment authorization form, in which each stated that the work had been completed satisfactorily. Finally, Rizza testified that to finalize the payment agreement, the plaintiff had to sign two forms: a one year warranty form regarding the work completed, and a lien waiver form. The plaintiff never signed those forms, and the city funds were not released.

When the plaintiff was not paid either by Brown or by the city from loan funds on behalf of Brown, it filed suit on July 30,1990. In count one, the plaintiff alleged that Brown had refused to pay money rightfully due the plaintiff. In count two, the plaintiff stated that the city, as the administrator of the housing rehabilitation loan program, was holding $20,150 to which the plaintiff was entitled as a result of the plaintiffs completion of the work specified in the main contract. Brown counterclaimed that the project was not completed in a workmanlike fashion, that the agreement for housing rehabilitation was invalid pursuant to General Statutes § 20-418 et seq., the Home Improvement Act, and that, as a result of the violation of the Home Improvement Act, the plaintiff committed unfair trade practices pursuant to General Statutes § 42-110a et seq.

The trial court originally rendered judgment on June 3,1992, concluding that the agreement for housing rehabilitation and the additional work authorization regarding the bathroom were not required to comply with General Statutes § 20-429, part of the Home Improvement Act, pursuant to an exemption found in General Statutes § 20-428. Section 20-428 provides in part that the Home Improvement Act does not apply to “[t]he government of the state, municipalities of the state or any department or agency of the state or such municipalities.” The court then concluded that the agreement for housing rehabilitation and the additional work authorization, both drafted by the city, were exempt from the provisions of the Home Improvement Act.

The court further concluded that the original August 10,1988 agreement between the plaintiff and Brown for bathroom remodeling complied with the provisions of General Statutes § 20-429. As a result, the court rendered judgment against Brown for $2221, the difference between the full amount of the August 10, 1988 agreement ($6021) and the city’s portion ($3800). Further, the court rendered judgment against the city for $20,150, and against Brown on each count of her counterclaim.

Brown filed a motion for articulation of the trial court’s decision on June 18, 1992. In a memorandum of decision dated July 29,1992, the court amended its judgment, and found that the August 10,1988 contract between the plaintiff and Brown did not comply with General Statutes § 20-429 (a) (7), since the document lacked starting and completion dates. In addition, the court explained that Brown’s counterclaim had been denied since she did not carry her burden of proof on any count. Finally, the court again rendered judgment against the city for $20,150. Therefore, the plaintiff had a judgment against the city for $20,150, but had no judgment against Brown.

The plaintiff then filed a motion for articulation of the trial court’s memorandum of decision dated July 29, 1992. Specifically, the plaintiff claimed that in order to be consistent with the trial court’s decision rendering judgment against the city on count two, the court also had to render judgment against Brown on count one to reflect Brown’s underlying loan obligation to the city. The plaintiff asserted that count one of the complaint was directed at the main contract entered into by the plaintiff and Brown.

In its articulation dated September 17,1992, the trial court stated that “[t]he court’s understanding of the pleadings was that under count one plaintiff sought from the defendant Laverne Brown sums due for extra work performed outside the original contract.” As a result of the court’s interpretation that count one encompassed only work outside the main contract and that such work did not comport with the applicable statutes, the court rendered judgment for Brown. We con-elude that the trial court improperly construed count one of the plaintiffs complaint and order a new trial.

The interpretation of pleadings is always a question of law for the court. Cahill v. Board of Education, 198 Conn. 229, 236, 502 A.2d 410 (1985); Drummond v. Hussey, 24 Conn. App. 247, 248, 588 A.2d 223 (1991); Mac’s Car City, Inc. v. DeNigris, 18 Conn. App. 525, 529, 559 A.2d 712 (1989); Sauerwein v. Bell, 17 Conn. App. 697, 702, 556 A.2d 613, cert. denied, 211 Conn. 804, 559 A.2d 1158 (1989). In addition, “[t]he allegations of the complaint must be given such reasonable construction as will give effect to [it] in conformity with the general theory which it was intended to follow, and do substantial justice between the parties. (Emphasis in original.) Burns v. Koellmer, 11 Conn. App. 375, 382, 527 A.2d 1210 (1987), quoting Cahill v. Board of Education, supra.” (Internal quotation marks omitted.) Drummond v. Hussey, supra, 249.

In this case, the trial court found that count one of the complaint alleged only the failure of Brown to pay sums for work completed outside the main contract. At oral argument, counsel for the plaintiff and for Brown conceded that the trial was conducted under the theory that count one concerned Brown’s potential liability under the main contract, as well as under the contract that provided for additional work. Our review of the complaint and the evidence presented at trial indicates that the plaintiff sought relief from Brown not only for the work performed pursuant to the contract for additional work, but also for the work provided for in the main contract. We conclude, therefore, that the trial court misconstrued count one of the complaint.

The trial court’s improper reading of count one of the complaint directly affected the judgment of the court. See generally Pergament v. Green, 32 Conn. App. 644, 651, 630 A.2d 615, cert. denied, 228 Conn. 903, 634 A.2d 296 (1993) (trial court’s consideration of fiduciary breach theory of liability that was not alleged in complaint affected court’s decision on matters properly alleged). In ruling on count one, the trial court did not consider Brown’s liability on the main contract. With regard to count two, however, the court determined that the city was liable for $20,150, despite the fact that the city was merely holding the federal moneys to be paid to the plaintiff upon the satisfactory completion of the home improvement project. Absent predicate liability of Brown based on count one to pay the plaintiff the $20,150 under the main contract, the city could not be liable to pay the plaintiff. There was no direct obligation on the part of the city to pay the plaintiff. Since the trial court did not find Brown liable on the main contract, it improperly rendered judgment against the city on count two.

The judgment is reversed and the case is remanded for a new trial. The cross appeals are dismissed.

In this opinion the other judges concurred.

       Separate appeals were previously filed by both defendants. The defendants withdrew those appeals and filed cross appeals in this action.

       The parties raised the following other issues on appeal: (1) whether the trial court improperly rendered judgment against the city without having rendered judgment against Brown; (2) whether the trial court improperly concluded that a contract between Brown and the plaintiff violated the Home Improvement Act and the Home Solicitation Sales Act; (3) whether the court improperly concluded that two agreements drafted by the city did not need to comply with the Home Improvement Act and the Home Solicitation Sales Act, based on the exemption provision in the Home Improvement Act; and (4) whether the court improperly rendered judgment for the plaintiff on all counts of Brown’s counterclaim. These issues include those raised in the defendants’ cross appeals. Because we reverse the judgment and remand this case for a new trial on the ground that the trial court misconstrued count one of the complaint, we do not reach these other issues.

       In this notice, the plaintiff also offered to accept $6549.32 in settlement of Brown’s alleged debt.

       Although the $3800 corresponded to the amount that the city originally agreed to pay pursuant to the additional work authorization, that amount now reflected work that differed from that listed in the additional work authorization. For example, the additional work authorization contained an item concerning tile work. The plaintiff, however, did not undertake any tile work. Rizza testified that due to the vast differences between the work originally authorized and that completed by the plaintiff and reflected in the change orders document, the $3800 stated in the additional work authorization acted as a $3800 credit on the change orders document. The entire amount of the bathroom renovation work actually completed by the plaintiff was calculated on the change orders document, and the $3800 was •subtracted from that amount, leaving Brown to pay the amount above that originally authorized by the city.

       Count one of the plaintiffs complaint stated in full:
      “1. On or about August 26,1988, the Plaintiff, Jacques All Trades Corp., entered into a written contract with the Defendant, Laverne Brown, for the repair and remodeling of the Defendant’s property located at 121 Newington Avenue, Hartford, Connecticut.
      “2. The original contract amount was $20,150.00.
      “3. On September 6,1988, the parties amended said contract in writing providing for additional work in the second floor [bath]room to be done by the Plaintiff and paid for by the Defendant in the amount of $3,800.00.
      “4. On August 10, 1988, the parties amended said contract in writing once again providing for additional work to the second floor bathroom and roof to be done by the Plaintiff and paid for by the Defendant in the amount of $6021.00.
      “5. The Plaintiff has satisfactorily completed all of said work but the Defendant, despite demand, has neglected and refused to pay to the Plaintiff the sums rightfully and due owing.”

       Count two of the plaintiff’s complaint stated in full:
      “6. The Defendant, City of Hartford, is the administrator of a Housing Preservation Loan Program, through the Department of Housing and Community Development, from which the Defendant, Laverne Brown, obtained a low interest loan in the amount of $20,150.00 to pay for the original contract price.
      “7. The Defendant, City of Hartford, is currently holding at least $20,150.00 to which the Plaintiff is entitled and is, therefore, the stakeholder to that extent.

        “8. The Plaintiff is entitled to receive all funds currently held by the Defendant, City of Hartford by virtue of its completion of the work.”
      In the plaintiffs prayer for relief, the plaintiff requested “5. An [o]rder requiring the Defendant, City of Hartford, to immediately pay over to the Plaintiff all sums of money held by the City.”

       Brown claimed that the alleged violation of the cancellation notice requirement found in General Statutes § 20-429 (a) (6) of the Home Improvement Act was also a violation of General Statutes § 42-135a of the Home Solicitation Sales Act, which in turn constituted an unfair or deceptive act under General Statutes § 42-110b.


author: Lavery, J.

text:
    Discover Leasing, Inc. v. Raymond J. Murphy, Jr.
    (11810)
    Lavery, Freedman and Schaller, Js.
    Argued October 26
    decision released December 28, 1993

      Thomas E. Crosby, for the appellant (plaintiff).

      William J. Nulsen, for the appellee (defendant).
   Lavery, J.

The plaintiff appeals from the judgment rendered by a trial referee dismissing the plaintiffs conversion action for failure to establish a prima facie case. The plaintiff claims that the trial referee improperly (1) failed to act on the motion to modify the report, (2) granted the motion to dismiss for failure to make out a prima facie case, (3) excluded certain evidence, and (4) demonstrated partiality during the trial. Because we agree with the plaintiff’s claim regarding its prima facie case, we need not address its other claims.

The plaintiff in this action, Discover Leasing, Inc. (Discover), provided financing for leases of capital equipment and automobiles. Discover was incorporated with two shareholders: the defendant, Raymond J. Murphy, Jr., and Patricia Leninski. In addition to being a minority shareholder, Murphy was president of the corporation and ran day-to-day operations. Leninski was the corporation’s majority shareholder and secretary.

In late 1988, Leninski learned that Murphy had made some unauthorized transfers of Discover funds to Becker Associates, a Rhode Island company, and had been receiving interest on the funds. She fired Murphy and the corporation removed him from his offices. After conducting an audit, Discover brought this action against Murphy, claiming conversion and statutory theft in the amount of $155,051.

The matter was transferred to a trial referee pursuant to Practice Book § 430 for trial. At the close of Discover’s case, the defendant moved for a “directed verdict.” The state trial referee, using a preponderance of the evidence standard and considering only the credible evidence, granted “the defendant’s motion to dismiss.” Discover appeals from the judgment of dismissal.

I

The nature of the motion acted on in the trial court determines the proper standard to be used by that court as well as our standard of review on appeal. Thus, we must first clarify what occurred at trial.

At the close of Discover’s evidence, the defendant moved for a directed verdict. “A directed verdict is justified if on the evidence the jury could not reasonably and legally reach any other conclusion . . . .” (Citations omitted; internal quotation marks omitted.) Churchill v. Skjerding, 31 Conn. App. 247, 251, 624 A.2d 900, cert. denied, 226 Conn. 914, 628 A.2d 986 (1993). Directed verdicts are properly considered by the trial court at any time after the close of the plaintiffs case-in-chief. Practice Book § 321. If the motion for a directed verdict is denied, the defendant may offer evidence. Id. Directed verdicts shift the decision from the jury to the trial court. Red Maple Properties v. Zoning Commission, 222 Conn. 730, 736, 610 A.2d 1238 (1992). Where there is no jury, directed verdicts are not required or available. Commissioner of Welfare v. Rynecki, 37 Conn. Sup. 560, 564, 426 A.2d 1329 (1980); see also Haag v. Beard Sand & Gravel Co., 151 Conn. 125, 127, 193 A.2d 711 (1963).

In this case, there was no jury. Thus, it is clear that the defendant’s motion for a directed verdict was improper. We now turn to the trial referee’s granting of a motion to dismiss. That too was an improper vehicle in this instance.

Practice Book § 142 grants defendants the power to move to dismiss actions against them. “A motion to dismiss is used to assert jurisdictional flaws that appear on the record or are alleged by the defendant in a supporting affidavit ‘as to facts not apparent on the record.’ ” Bradley’s Appeal from Probate, 19 Conn. App. 456, 461-62, 563 A.2d 1358 (1989); see Practice Book § 142. A ruling on a motion to dismiss is neither a ruling on the merits of the action; Amore v. Frankel, 29 Conn. App. 565, 570-71, 616 A.2d 1152 (1992), cert. granted, 225 Conn. 904, 621 A.2d 286 (1993); nor a test of whether the complaint states a cause of action. Pratt v. Old Saybrook, 225 Conn. 177, 185, 621 A.2d 1322 (1993); see Practice Book § 143. Motions to dismiss are granted solely on jurisdictional grounds. Caltabiano v. Phillips, 23 Conn. App. 258, 265, 580 A.2d 67 (1990); see Practice Book § 143. Further, motions to dismiss must be made within thirty days of filing an appearance. Practice Book § 142.

Thus, the referee’s granting of a § 142 motion to dismiss would have been improper both as to substance and timing. Rather, the defendant’s motion challenged the sufficiency of the plaintiff’s prima facie case. This type of challenge is properly raised by a motion to dismiss for failure to make out a prima facie case pursuant to Practice Book § 302.

A trial court can dismiss an action where it believes the plaintiff has failed to make out a prima facie case. Practice Book § 302; Season-All Industries, Inc. v. R. J. Grosso, Inc., 213 Conn. 486, 493, 569 A.2d 32 (1990). “[WJhen the evidence produced by the plaintiff, if fully believed, would not permit the trier in reason to find the essential issues on the complaint in favor of the plaintiff,” dismissal under Practice Book § 302 is appropriate. Hinchliffe v. American Motors Corp., 184 Conn. 607, 609, 440 A.2d 810 (1981); Gulycz v. Stop & Shop Co., 29 Conn. App. 519, 523, 615 A.2d 1087 (1992). A § 302 motion is properly considered at the close of the plaintiff’s evidence. Carnese v. Middleton, 27 Conn. App. 530, 539, 608 A.2d 700 (1992). A denial of a § 302 motion gives the plaintiff the opportunity to have the fact finder pass on the merits of the case. Berchtold v. Maggi, 191 Conn. 266, 271, 464 A.2d 1 (1983).

In considering a motion under Practice Book § 302, a trial court must consider all of the plaintiff’s evidence to be true. Hinchliffe v. American Motors Corp., supra, 609-10; Bolmer v. Kocet, 6 Conn. App. 595, 603, 507 A.2d 129 (1986). Further, a trial court must draw all reasonable inferences in the plaintiff’s favor. Pagni v. Corneal, 13 Conn. App. 468, 470, 537 A.2d 520, cert. denied, 207 Conn. 810, 541 A.2d 1239 (1988). The limitations of a § 302 motion contrast with the trial court’s discretion in ruling on the merits of a case. Once a case is presented to the trial court for final decision, the trier is released from having to treat the plaintiff’s evidence as true and can disbelieve any evidence, even if the evidence is uncontroverted. Strickland v. Vescovi, 3 Conn. App. 10, 15, 484 A.2d 460 (1984).

Here, the defendant challenged the plaintiff’s prima facie case, after the plaintiff rested, in a civil matter tried to the court. Thus, this procedural posture makes it evident that the defendant moved to dismiss under § 302.

II

On appeal of a dismissal pursuant to Practice Book § 302, we take the plaintiff’s evidence as true; Higgins v. Ambrogio, 19 Conn. App. 581, 584, 562 A.2d 1154 (1989); and consider the trial court’s conclusions in light of the evidence in the record. Bershtein, Bershtein, & Bershtein v. Nemeth, 221 Conn. 236, 239, 603 A.2d 389 (1992). “Whether the plaintiffs established a prima facie case is a question of law.” Wordie v. Staggers, 27 Conn. App. 463, 465, 606 A.2d 734 (1992); Angelo Tomasso, Inc. v. Armor Construction & Paving, Inc., 187 Conn. 544, 561, 447 A.2d 406 (1982). “We must determine whether the trial court properly determined that the plaintiff failed to provide sufficient evidence to support his prima facie case.” Ivimey v. Watertown, 30 Conn. App. 742, 751, 622 A.2d 603, cert. denied, 226 Conn. 902, 625 A.2d 1375 (1993), citing Logan v. O’Neill, 187 Conn. 721, 728, 448 A.2d 1306 (1982).

Discover alleged that the defendant had committed conversion and statutory theft in violation of General Statutes § 52-564. Conversion is an unauthorized assumption and exercise of the right of ownership over goods belonging to another, to the exclusion of the owner’s rights. Devitt v. Manulik, 176 Conn. 657, 660, 410 A.2d 465 (1979). To establish a prima facie case of conversion, Discover had to demonstrate that (1) the funds invested with Becker Associates belonged to Discover, (2) that the defendant deprived Discover of its funds for an indefinite period of time, (3) that the defendant’s conduct was unauthorized, and (4) that the defendant’s conduct harmed Discover. See id.

Statutory theft is synonymous with larceny under General Statutes § 53a-119. Lauder v. Peck, 11 Conn. App. 161, 165, 526 A.2d 539 (1987). To establish a prima facie case of statutory theft, Discover had to demonstrate that (1) the funds invested with Becker Associates belonged to Discover, (2) that the defendant intentionally deprived Discover of its funds, and (3) that the defendant’s conduct was unauthorized. See General Statutes § 53a-119.

Viewing Discover’s evidence as true, it is clear that Discover established that the defendant had invested Discover money with Becker Associates. Leninski testified that the defendant had done so. Steven Green-berg, a Discover employee, and Stacey Kaplunic Emmanuel, a former girlfriend of the defendant, both testified that the defendant admitted sending Discover money to Becker Associates. Richard Silkoff, a certified public accountant, testified that a forensic audit confirmed Leninski’s testimony about the dates and amounts of those investments. Finally, the fact that Becker Associates repaid $100,000 to Leninski after the defendant was fired further supports Discover’s contention that the money invested with Becker belonged to Discover.

Discover established that the defendant had deprived Discover of its funds for five to seven months. Lenin-ski and Silkoff testified that the first withdrawal was made in April, 1988, followed by two more withdrawals in June, 1988. Leninski also testified that a portion of the funds was returned by Becker Associates in late 1988 or early 1989. The balance of the money remains missing.

Discover also established that the defendant acted without authorization. Leninski testified that she had not authorized any investment with Becker. Further, one of the withdrawals was made with a single signature check and another was made via wire transfer, contravening normal practice. Leninski and Greenberg both testified that Leninski fired the defendant as soon as she learned of his activities.

Discover established that the defendant had employed Discover funds for his own purposes. Emmanuel and Greenberg both testified that the defendant told them that he was receiving approximately $3000 per week in interest from the Becker investments. They further testified that the defendant told them he split the interest payments among Discover, Ken Nelson, another Discover employee, and himself, one third to each. Emmanuel testified that she saw the defendant receive these weekly sums for four to six months, ending when the defendant was fired.

In sum, Discover’s evidence, taken as true, established that the defendant had employed corporation funds for his own benefit, without authorization, to the detriment of Discover. Thus, when it rested, Discover had established a prima facie case of conversion and statutory theft and the defendant’s § 302 motion to dismiss should have been denied.

The judgment is reversed and the case is remanded for a new trial.

In this opinion the other judges concurred.

       The plaintiff also challenges what appears to be a decision on the merits in favor of the defendant. The trial court’s judgment states, “The Court, having heard the parties, finds the issues for the defendant, and that the defendant’s motion to dismiss should be granted and judgment entered on behalf of the defendant . . . .” The trial court could not render a decision on the merits in this case. First, the court had previously dismissed the plaintiffs case for failing to make out a prima facie case. Thus, the case was no longer before the court. Second, because the defendant had never rested his case, the merits of the action were not before the court for adjudication. Therefore, we will address the plaintiffs appeal from the trial court’s judgment of dismissal in favor of the defendant, the only judgment properly before the trial court.

       Practice Book § 430 provides in pertinent part: “[Tjhe judicial authority may refer any civil nonjury case or, with the written consent of the parties or their attorneys, any civil jury case, pending before such court, in which the issues have been closed, to a trial referee, who shall have and exercise the powers of the superior court in respect to trial, judgment and appeal in such case. . . .”

       Practice Book § 142 provides in pertinent part: “Any defendant, wishing to contest the court’s jurisdiction, may do so even after having entered a general appearance, but must do so by filing a motion to dismiss within thirty days of the filing of an appearance. . . .”

       Practice Book § 143 provides in pertinent part: “The motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, and (5) insufficiency of service of process. . . .”

       Practice Book § 302 provides in pertinent part: “If, on the trial of any issue of fact in a civil action tried to the court, the plaintiff has produced his evidence and rested his cause, the defendant may move for judgment of dismissal, and the court may grant such motion, if in its opinion the plaintiff has failed to make out a prima facie case. ...”

       General Statutes § 52-564 provides: “Any person who steals any property of another, or knowingly receives and conceals stolen property, shall pay the owner treble his damages.”

       General Statutes § 53a-119 provides in pertinent part: “A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. Larceny includes but is not limited to:
      “(1) Embezzlement. A person commits embezzlement when he wrongfully appropriates to himself or to another property of another in his care or custody. . . .”