author: LANDAU, J.

text:
    JOSEPH D’AMICO v. DEBRA L. JOHNSON ET AL.
    (AC 18099)
    Foti, Landau and Healey, Js.

      Argued February 22
    officially released June 22, 1999

      John R. Williams, for the appellant (plaintiff).

      Peter L. Brown, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Richard J. Lynch, assistant attorney general, for the appellees (defendants).
   Opinion

LANDAU, J.

The plaintiff, Joseph D’Amico, appeals from the judgment rendered by the trial court after it granted the defendants’ motion to strike. On appeal, the plaintiff claims that, because the allegations of his complaint are sufficient to state a cause of action -under 42 U.S.C. § 1983, the trial court improperly granted the defendants’ motion to strike. We affirm the judgment of the trial court.

The relevant facts are the allegations of the plaintiffs complaint, which follow. The plaintiff is an adult citizen of the United States residing in Windsor. The defendant Debra L. Johnson, acting in her official capacity, was the acting chief of the application, examinations and licensure section of the division of medical quality assurance of the state department of public health (department). The plaintiff sued Johnson in her individual and official capacities and the commissioner of public health only in her official capacity. At all relevant times, the defendants were acting under color of state law. The plaintiff brought his cause of action pursuant to 42 U.S.C. §§ 1983 and 1988.

The plaintiff, who had been convicted of a serious felony, earned the credits necessary to complete a college degree while he was in prison and was awarded a college degree. He was subsequently accepted by the University of Connecticut School of Social Work, where he received a graduate degree in 1989. Thereafter, he was employed for several years as a social worker at the Shelton Guidance Clinic and, subsequently, was in private practice. Since he was released from prison in 1984, the plaintiff has been neither arrested nor convicted of a crime.

On February 5, 1996, the plaintiff applied to the department for a clinical social worker license. The plaintiff meets the criteria for a license and his application was proper and complete. On April 29, 1996, Johnson denied the plaintiffs application, stating that “the Department is willing to consider further your eligibility for licensure in accordance with a Prelicensure Consent Order [which would] require that you, at your own expense, undergo a psychiatric evaluation by a psychiatrist mutually agreed upon by yourself and the Department [and upon] the conclusion of the evaluation regarding your ability to practice safely and competently under the terms and conditions (i.e., periodic performance reports) contemplated in the Prelicensure Consent Order.”

The plaintiff alleged that the conditions set forth in the consent order are not authorized by law. Although General Statutes § 19a-14 provides that the department may deny a license to an applicant convicted of a felony, the defendants did not purport to act under the authority of § 19a-14 by resorting to the consent order. The plaintiff alleges that the defendants’ actions with respect to the plaintiff concerning the consent order constitute an abuse of discretion under § 19a-14 and that there are no administrative procedures to review the department’s decision.

The plaintiff also alleged that the defendants deprived him of his right to equal protection and due process of law as guaranteed by the fourteenth amendment to the United States constitution. The plaintiff claims that, as a result of the defendants’ acts and omissions, he has suffered and will continue to suffer economic loss and emotional distress. He seeks compensatory and punitive damages from Johnson and a temporary and permanent injunction against both defendants.

The defendants filed a motion to strike the plaintiffs one count complaint. The trial court granted the motion to strike, ruling that the complaint failed to state either a due process or equal protection cause of action under § 1983. After the trial court rendered judgment on its granting of the motion to strike, the plaintiff appealed. On appeal, the plaintiff claims that the trial court improperly granted the defendants’ motion to strike because his complaint states a cause of action under § 1983 as a result of the defendants’ having violated his procedural and substantive due process rights guaranteed by the fourteenth amendment.

“The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaints ... to state a claim upon which relief can be granted. . . . In an appeal from a judgment granting a motion to strike, we operate in accordance with well established principles. . . . [W]e must take as true the facts alleged in the plaintiffs complaint and must construe the complaint in the manner most favorable to sustaining its legal sufficiency. ... If the facts provable in the complaint would support a cause of action, the motion to strike must be denied.” (Citations omitted; internal quotation marks omitted.) Peter-Michael, Inc. v. Sea Shell Associates, 244 Conn. 269, 270-71, 709 A.2d 558 (1998). “A motion to strike admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings. . . . Moreover, we note that [w]hat is necessarily implied [in an allegation] need not be expressly alleged.” (Citations omitted; internal quotation marks omitted.) Holler v. Buckley Broadcasting Corp., 47 Conn. App. 764, 768, 706 A.2d 1379 (1998). “ ‘Because a motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court, our review of the court’s ruling on the defendants’ motions is plenary.’ ” Pamela B. v. Ment, 244 Conn. 296, 307, 709 A.2d 1089 (1998).

We begin by examining the allegations of the complaint to determine whether they state a cause of action under § 1983. “[I]n any § 1983 action the initial inquiry must focus on whether the two essential elements to a § 1983 action are present: (1) whether the conduct complained of was committed by a person acting under color of state law; and (2) whether this conduct deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States.” Parratt v. Taylor, 451 U.S. 527, 535, 101 S. Ct. 1908, 68 L. Ed. 2d 420 (1981). Here, the plaintiff has properly alleged that the defendants were acting under color of state law. The question then is whether the defendants’ conduct violated any rights, privileges or immunities secured by law, which is a question of law. See RRI Realty Corp. v. Southampton, 870 F.2d 911, 918 (2d Cir.), cert. denied, 493 U.S. 893, 110 S. Ct. 240, 107 L. Ed. 2d 191 (1989).

The plaintiff alleged that, in denying him a license, the defendants acted arbitrarily in that they did not act under the authority of § 19a-14. The plaintiff concedes that the department had the right to deny him a license because he is a felon. The plaintiffs procedural due process argument is that the department waived its discretionary right to deny him a license by issuing the consent order and, therefore, put him on equal footing with applicants who were not felons. Pursuant to the allegations of the complaint, we do not agree that the department waived its right to deny the plaintiff a license. Paragraph eleven of the complaint explicitly alleges, “Johnson denied the plaintiffs . . . application.” We acknowledge that paragraph eleven also alleges that the department was willing to consider the plaintiffs application further if he agreed to a prelicensure consent order, but this allegation does not defeat the simple fact that Johnson denied the plaintiffs application. Furthermore, the plaintiff has cited no law to support his waiver argument.

Even if we assume, arguendo, that the department did waive its right to deny the plaintiff a license, the trial court correctly determined that the plaintiff has no property right or entitlement to a license to be a clinical social worker. The analytical framework to determine whether the plaintiff has a property right or entitlement to a license is set forth in Karan v. Adams, 807 F. Sup. 900 (D. Conn. 1992), in which the United States District Court for the District of Connecticut was called on to determine whether a psychologist licensed by another state had a property right or was entitled to obtain a license to practice in this state, and, therefore, was wrongfully denied the opportunity to sit for a licensing examination.

“The requirements of procedural due process are applicable only where a state deprives a person of a constitutionally protected property or liberty interest. ... To possess a protectible interest in a benefit ‘a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.’ . . . This rule applies even where the loss suffered is great. ‘[T]o determine whether due process requirements apply in the first place, we must look not to the “weight” but to the nature of the interest at stake.’ . . .

“A person possesses a property interest when there are ‘such rules or mutually explicit understandings that support his claim to entitlement to the benefit and that he may invoke at a hearing.’ . . . The understandings that give rise to a property interest are generally grounded outside the Constitution, most often in state law. . . . Nevertheless, it is federal constitutional law that determines whether a particular property interest rises to the level of a legitimate claim of entitlement protected by the Due Process Clause.” (Citations omitted; emphasis in original.) Id., 908-909.

“A constitutionally cognizable property interest is a prerequisite to the attachment of constitutional procedural and substantive due process rights. Board of Regents v. Roth, 408 U.S. 564, 576, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972). A substantive property interest arises when ‘absent the alleged denial of due process, there is either a certainty or a very strong likelihood that the application would have been granted.’ Yale Auto Parts, Inc. v. Johnson, 758 F.2d 54, 59 (2d Cir. 1985).” Grimes v. Conservation Commission, 243 Conn. 266, 271-72, 703 A.2d 101 (1997). “The ‘strong likelihood’ aspect of Yale Auto Parts comes into play only when the discretion of the issuing agency is so narrowly circumscribed that approval of a proper application is virtually assured; an entitlement does not arise simply because it is likely that broad discretion will be favorably exercised. Since the entitlement analysis focuses on the degree of official discretion and not on the probability of its favorable exercise, the question of whether an applicant has a property interest will normally be a matter of law for the court.” RRI Realty Corp. v. Southampton, supra, 870 F.2d 918.

“Application of the test must focus primarily on the degree of discretion enjoyed by the issuing authority, not the estimated probability that the authority will act favorably in a particular case.” Id. “The fact that the permit could have been denied on non-arbitrary grounds defeats the federal due process claim.” Id. Here, the statute provides that the department may deny a license to a felon. Courts have determined that the word may conveys broad discretion. See Charry v. Hall, 709 F.2d 139, 144 (2d Cir. 1983). The plaintiff concedes that the department had the right to deny him a license because he was a convicted felon. The plaintiff was, therefore, not denied a property right or entitlement, and we need not apply the procedural due process test of Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976).

The plaintiff next claims that the department’s preli-censure consent order violates his substantive due process rights because the requested psychological evaluation constitutes an invasion of his privacy. We do not agree.

“In the context of sensitive public jobs, we have recognized the government’s right to condition such employment on psychological evaluation if the employee’s psychological fitness has been put in question.” Harrington v. Almy, 977 F.2d 37, 43 (1st Cir. 1992). Substantive due process has been characterized as “ ‘imposing] limits on what a state may do regardless of what procedural protection is provided.’ Pittsley v. Warish, 927 F.2d 3, 6 (1st Cir.), cert. denied, 502 U.S. 879, 112 S. Ct. 226, 116 L. Ed. 2d 183 (1991). To support a substantive due process claim, [the plaintiff] must establish either that the defendant’s actions were sufficient to ‘[shock] the conscience,’ id., quoting Rochin v. California, 342 U.S. 165, 172, 72 S. Ct. 205, 209, 96 L. Ed 183 (1952), or were ‘a violation of an identified liberty or property interest protected by the due process clause.’ Id. That interest here is the familiar Fourth Amendment right to be free from unwarranted searches or seizures which is protected against state action through the due process clause of the Fourteenth Amendment.” Harrington v. Almy, supra, 43.

“The evolving case law governing unwanted bodily intrusions or manipulations has weighed several relevant considerations. Once it is established that, as here, the state is entitled to the information the bodily intrusion is designed to obtain, the means used will be measured by its reasonableness in light of the need to obtain the evidence in this way. To the degree the procedure would not be considered offensive even by the most delicate and is routine, it will be less likely to involve a constitutional violation.” Id., 44.

The plaintiff relies heavily on Harrington in support of his argument that a psychological evaluation is overly intrusive and a violation of his fourth and fourteenth amendment rights to privacy. The facts of Harrington speak differently. In Harrington, the plaintiff police officer was asked to undergo a psychological evaluation in order to be reinstated. The plaintiff agreed to the psychological evaluation assuming he would undergo the routine psychological testing customarily administered to police officers. He refused to participate in the evaluation, however, because it included the “administration of a penile plethysmograph, a procedure whereby [the plaintiffs] sexual profile would be assessed by the placement of a gauge on his penis while he viewed various sexually explicit slides . . . Id., 39.

In the case before us, the plaintiff alleges that the department was willing to consider further his application if he agreed to undergo a psychological examination to be conducted by a psychiatrist to whom the plaintiff and the department mutually agreed. Unlike the physical invasion in Harrington, there is no allegation that the psychological evaluation will physically invade the plaintiffs body. On its face, the allegations of the plaintiffs complaint do not shock the conscience. See also Winston v. Lee, 470 U.S. 753, 759, 105 S. Ct. 1611, 84 L. Ed. 2d 662 (1985) (surgical procedure under general anesthetic to remove bullet lodged in chest of armed robbery suspect too intrusive on suspect’s privacy interests in absence of compelling need for this particular method of obtaining evidence); Schmerber v. California, 384 U.S. 757, 760, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966) (reaffirming holding of Breithaupt v. Abram, 352 U.S. 432, 77 S. Ct. 408, 1 L. Ed. 2d 448 (1957)); Breithaupt v. Abram, supra, 352 U.S. 435-36 (use of hypodermic needle to extract blood from unconscious accident victim to test for alcohol not offensive); Rochin v. California, supra, 342 U.S. 172 (pumping suspect’s stomach for evidence of illegal drugs possibly ingested shocks conscience).

The purpose of § 19a-14 is to regulate certain professions that provide health services to the public. The power to regulate those professions is vested in the department, which by statute, § 19a-14 (a) (10), has the power to conduct any necessary review or investigation regarding an applicant’s qualifications. In the case before us, the plaintiff, by his own admission, has a record of having committed a serious felony. Although it appears that the plaintiff has rehabilitated himself, the department has a justifiable interest in determining whether the plaintiff is psychologically fit to be a licensed clinical social worker. Asking the plaintiff to submit to a psychological evaluation and periodic reports from a psychiatrist acceptable to both him and the department does not shock the conscience as being unreasonably intrusive of the plaintiffs right to privacy. We conclude, therefore, that the trial court properly granted the defendants’ motion to strike because the complaint fails to state a cause of action under 42 U.S.C. § 1983 for violation of his fourteenth amendment right to due process.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff seeks attorney’s fees pursuant to § 1988.

       Paragraph eleven of the complaint apparently quotes the language contained in the letter from Johnson to the plaintiff denying him a license.

       The plaintiff is not pursuing his equal protection claim on appeal.

       “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceedings for redress. . . .” 42 U.S.C. § 1983.

       General Statutes (Rev. to 1995) § 19a-14 provides in relevant part: “(a) The department of public health and addiction services shall have the following powers and duties with regard to the boards and commissions listed in subsection (b) which are within the department of public health and addiction services. The department shall:
      * ** *
      “(6) Determine the eligibility of all applicants for . . . licensure . . . based upon compliance with the general statutes and administrative regulations. The department may deny the eligibility of an applicant ... for licensure ... if the department determines that the applicant:
      * * *
      “(B) Has been found guilty or convicted as a result of an act which constitutes a felony under (i) the laws of this state . . .
      :|s * *
      “(10) Conduct any necessary review, inspection or investigation regarding qualifications of applicants for licenses ....
      * * *
      “(c) No board shall exist for the following professions which are licensed or otherwise regulated by the department of public health and addiction services:

        * * *
      ‘■(8) Certified independent social worker .... The department shall assume all powers and duties normally vested with a board in administering regulatory jurisdiction over said professions. . . .” (Emphasis added.) Public: Acts 1996, No. 96-47, effective October 1,1996, specifically authorized the department to issue a license pursuant to a consent order containing conditions that must be met by the applicant if he or she has been convicted of a felony. See General Statutes § 19a-14 (a) (6) (B).

       It appears to us that in light of the plaintiffs educational accomplishments and postincarceration conduct, the department was willing to reconsider the plaintiffs application if he could demonstrate that he was psychologically fit to be a licensed clinical social worker. In doing so, the department anticipated the prelicensure consent order provision that the legislature incorporated in the statute as of October 1,1996, approximately six months after the plaintiffs application was denied. See footnote 5. In essence, the department was giving the plaintiff a second chance.


source: Caselaw Access Project

author: HENNESSY, J.

license: Public Domain

text:
    GRACE N’ VESSELS OF CHRIST MINISTRIES, INC. v. CITY OF DANBURY
    (AC 17706)
    Laveiy, Schaller and Hennessy, Js.

      Argued January 20
    officially released June 22, 1999

      David L. Grogins, with whom was Monte E. Frank, for the appellant (plaintiff).

      Peter N. Buzaid, assistant corporation counsel, for the appellee (defendant).
   Opinion

HENNESSY, J.

The plaintiff, Grace N’ Vessels of Christ Ministries, Inc. (Grace N’ Vessels), appeals from the judgment of the trial court denying it a refund for taxes paid on real property and denying its claim for tax exempt status on a portion of its property. Specifically, Grace N’ Vessels appeals from the denial of a refund for taxes paid by it to the city of Danbury (city), under protest, that had accrued prior to the acquisition of the property but had not yet become due and payable until after Grace N’ Vessels had acquired the property. Grace N’ Vessels claims that the trial court improperly determined that (1) a nonprofit charitable corporation that acquires real property used for charitable purposes, which the city subsequently declared to be exempt from taxation, can be compelled to pay property taxes subsequent to the date of acquisition of the property, (2) it failed to meet the requirements of General Statutes § 12-88 and (3) the time limitation provided in General Statutes § 12-119 applies to its application for reimbursement for taxes paid under protest to the city for the last quarter of the 1992 grand list and the 1993 grand list. We affirm the judgment of the trial court.

The following facts are relevant to the disposition of this appeal. Grace N’ Vessels is a Connecticut nonprofit corporation. On or about April 8,1994, Grace N’ Vessels acquired lot C15010, located at 20 Briar Ridge Road, and lot C15015, located at 13 and 14 Briar Ridge Road in Danbury, from the Federal Deposit Insurance Corporation.

One week after acquiring the property, Grace N’ Vessels applied for, and was granted as of the date of acquisition, a tax exemption for lot C15010. Grace N’ Vessels was not granted an exemption for lot Cl5015, however, until October 1, 1996, at which time the two lots were merged.

On or about March 28, 1995, the city billed Grace N’ Vessels for real property taxes, including interest and hen fees, for the October, 1992 grand list and a portion of the October, 1993 grand list. Thereafter, on or about May 1,1995, in order to avoid foreclosure proceedings, Grace N’ Vessels paid under protest the full amount of $26,611.03. After that payment, the city continued to place tax charges on lot C15015 for the 1993, 1994 and 1995 grand lists, resulting in an outstanding demand by the city of $21,229.

On August 3, 1995, Grace N’ Vessels filed an application with the Superior Court, pursuant to General Statutes §§ 12-816 and 12-119 and Danbury Code § 18-20, for reimbursement of the taxes it had already paid and for an exemption from taxation for lot C15015 for the period from the date of acquisition of the property, April 8, 1994, to October 1, 1996. Thereafter, the city filed an amended answer in which it included the special defense that Grace N’ Vessels’ application for reimbursement was filed beyond the one year statute of limitations provided for in § 12-119. On September 26, 1997, the trial court rendered judgment denying Grace N’ Vessels’ application. This appeal followed.

I

While Grace N’ Vessels raises three issues on appeal, we conclude that the issue raised as to whether the one year statute of limitations contained in § 12-119 applies is dispositive of the principal issue on appeal. Accordingly, we address that issue first. Section 12-119 provides in relevant part: “When it is claimed that a tax has been laid on property not taxable in the town or city in whose tax list such property was set . . . the owner thereof . . . prior to the payment of such tax, may, in addition to the other remedies provided by law, make application for relief to the superior court for the judicial district in which such town or city is situated. Such application may be made within one year from the date as of which the property was last evaluated for purposes of taxation . . . .” (Emphasis added.) See also Wilson v. Kelley, 224 Conn. 110, 617 A.2d 433 (1992). Here, Grace N’ Vessels’ application to the trial court challenged, inter alia, the October 1, 1992, and October 1, 1993 assessments for lot C15010. Because Grace N’ Vessels filed the application on August 3,1995, more than one year from either of those dates and, therefore, beyond the time limitation permitted in § 12-119, the trial court correctly determined that its claims with respect to lot C15010 are time barred.

II

Grace N’ Vessels’ application also included a claim for an exemption from taxation, pursuant to General Statutes § 12-81 as codified in the Danbury Code § 18-20, as to lot C15015 for the 1992, 1993, 1994 and 1995 grand lists, due to the outstanding tax charges levied on the property. Because Grace N’ Vessels did not file its application until August 8,1995, we conclude, for the reasons previously stated, that the trial court properly found that its claim for exemption for lot C15015 with regard to the 1992 and 1993 grand lists is time barred.

The only remaining issue concerns Grace N’ Vessels’ claim challenging the assessments for October 1, 1994, and October 1, 1995, for lot C15015. Grace N’ Vessels claims that the trial court improperly determined that it had failed to meet the requirements of § 12-88 and was, therefore, not entitled to a tax exemption for lot C15015. We are not persuaded.

Grace N’ Vessels challenges the trial court’s finding of fact that the property had not been used exclusively for religious or charitable purposes and, therefore, our standard of review is whether the findings are clearly erroneous. “Appellate review of a trial court’s findings of fact is governed by the clearly erroneous standard of review. 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.” (Internal quotation marks omitted.) Wilson v. Hryniewicz, 51 Conn. App. 627, 629-30, 724 A.2d 531, cert. denied, 248 Conn. 904, 731 A.2d 310 (1999).

General Statutes § 12-88 provides in relevant part: “Real property belonging to . . . any organization mentioned in subdivision (7), (10), (11), (13), (14), (15), (16) or (18) of section 12-81, which real property is so held for one or more of the purposes stated in the applicable subdivision, and from which real property no rents, profits or income are derived, shall be exempt from taxation though not in actual use therefor by reason of the absence of suitable buildings and improvements thereon, if the construction of such buildings or improvements is in progress. . . . If a portion only of any lot or building belonging to, or held in trust for, any such organization is used exclusively for carrying out one or more of such purposes, such lot or building shall be so exempt only to the extent of the portion so used and the remaining portion shall be subject to taxation.” (Emphasis added.)

At trial, evidence was presented that lot Cl5015 was an unimproved, wooded lot that contained no structures or buildings other than a volleyball court. Despite Grace N’ Vessels’ assertion that lot C15015 was used for religious purposes in that “prayer walks” were occasionally conducted on the property, there was sufficient testimony presented to demonstrate that the lot had no buildings or improvements, either completed or in progress, suitable for use for charitable purposes. The evidence presented thus supports the trial court’s finding that the lot was not subject to exemption pursuant to § 12-88 because it contains neither any building or other improvement used for charitable purposes, nor such improvements in the process of being constructed. We will not, therefore, disturb the ruling of the trial court.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 12-8lb provides: “Any municipality may, by ordinance, provide that the property tax exemption authorized by any of subdivisions (7) to (16), inclusive, of section 12-81 shall be effective as of the date of acquisition of the property to which the exemption applies and shall, in such ordinance, provide procedure for reimbursement of the tax-exempt organization for any tax paid by it for a period subsequent to said date and for any tax paid by the prior owner for a period subsequent to said date for which such organization reimbursed such owner on the transfer of title to such property.”

       General Statutes 8 12-119 provides in relevant pari,: “When it is claimed that a tax has been laid on property not taxable in the town or city in whose tax list such property was set . . . the owner thereof . . . may, in addition to the other remedies provided by law, make application for relief to the superior court for the judicial district in which such town or city is situated. Such application may be made within one year from the date as of which the property was last evaluated for purposes of taxation and shall be served and returned in the same manner as is required in the case of a summons in a civil action, and the pendency of such application shall not suspend action upon the tax against the applicant. In all such actions, the Superior Court shall have power to grant such relief upon such terms and in such manner and form as to justice and equity appertains, and costs may be taxed at the discretion of the court. If such assessment is reduced by said court, the applicant shall be reimbursed by the town or city for any overpayment of taxes in accordance with the judgment of said court.”

       Section 18-20 of the Danbury Code provides in relevant part: “The City of Danbury hereby adopts the provisions of Section 12-8 lb of the Connecticut General Statutes relating to the effective date of tax exemptions for certain organizations. Accordingly, the property tax exemption authorized by subsections (7) to (16), inclusive, of Section 12-81 of the Connecticut General Statutes shall be effective as of the date of acquisition of the property to which the exemption applies. The tax-exempt organization shall be reimbursed for any tax paid by it for a period subsequent to the date of such acquisition and shall also be reimbursed for any tax paid by the prior owner for a period subsequent to the date of such acquisition for which such tax-exempt organization reimbursed the prior owner upon the transfer of title to such property. . . .”

       October 1, 1996, is the date that the two lots were merged into one property and lot C15015 was removed from the tax lists.


author: PER CURIAM.

text:
    ROBERT A. BOSCO ET AL. v. ARROWHEAD BY THE LAKE, INC., ET AL.
    (AC 17437)
    O’Connell, C. J., and Hennessy and Dupont, Js.
    Argued March 1
    officially released June 22, 1999

      Robert W. Smith, for the appellants (plaintiffs).

      Joseph A. Mengacci, with whom was Richard Bruno, for the appellees (defendants).
   Opinion

PER CURIAM.

The plaintiffs appeal from the trial court’s denial of their motion for a prejudgment remedy of a real estate attachment. The plaintiffs are judgment creditors of one of the defendants, Arrowhead by the Lake, Inc. (Arrowhead), based on a July 21, 1994 judgment for damages arising from faulty workmanship, breach of warranties and deceptive trade practices in connection with a condominium the plaintiffs purchased from Arrowhead. Arrowhead has not satisfied the judgment and, in response to postjudgment interrogatories in that case, has disclosed that it does not have sufficient assets to satisfy the plaintiffs’ claim. The plaintiffs filed suit against the defendants claiming fraudulent transfer of real estate and violations of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., and seeking a piercing of the corporate veil of Arrowhead.

In connection with this lawsuit, the plaintiffs filed an application for a prejudgment remedy seeking the attachment of property of the defendant Muri Development Corporation (Muri), claiming that Arrowhead had fraudulently transferred assets to Muri to defraud the plaintiffs and other creditors.

It is important that we first note the nature of the proceedings that were before the trial court. In response to the plaintiffs’ application for a prejudgment real estate attachment, the trial court conducted a hearing and concluded, inter alia, that the plaintiffs had not established “that there is probable cause that they will prevail on the merits of [their] case.” Accordingly, the trial court denied the plaintiffs’ application. It is from this denial of that application that the plaintiffs now appeal.

General Statutes § 52-278d (a) permits a trial court to grant a prejudgment remedy if “the plaintiff has shown probable cause that ... a judgment will be rendered ... in the plaintiffs favor . . . .” We emphasize that a hearing on an application is not a full-scale trial on the merits of the plaintiffs’ claims; Fischel v. TKPK, Ltd., 34 Conn. App. 22, 24, 640 A.2d 125 (1994); Hoke, Inc. v. Circuits, Inc., 26 Conn. App. 804, 805, 602 A.2d 1075 (1995); but rather concerns only whether and to what extent the plaintiff is entitled to have property of a defendant held in custody of the law pending final adjudication of the merits of the action. Tyler v. Schnabel, 34 Conn. App. 216, 220, 641 A.2d 388 (1994). There is no assurance that, when a hearing on the merits is eventually reached, the evidence will be identical to the evidence adduced at the prejudgment remedy hearing. In fact, the evidence at trial will usually be much more expansive and may include exhibits or testimony not yet available at the time of the hearing on the application or the prejudgment remedy.

In a prejudgment remedy proceeding, it is the trial court that must determine whether the plaintiff has sustained its burden of showing probable cause to sustain the validity of the claim. Id. Appellate review of the trial court’s decision to grant or deny an application for a prejudgment remedy is limited to whether the trial court’s determination was clearly improper. Greenberg, Rhein & Margolis, Inc. v. Norris-Faye Horton Enterprises, Inc., 218 Conn. 162, 166, 588 A.2d 185 (1991). Moreover, an appellate court is entitled to presume that the trial court acted properly and considered all the evidence. Solomon v. Aberman, 196 Conn. 359, 376, 493 A.2d 193 (1985).

“The role of this court in reviewing the [trial] court’s decision on a prejudgment remedy is extremely limited. It is not to duplicate the trial court’s weighing process, but rather to determine whether its conclusion was reasonable. In the absence of clear error, this court should not overrule the thoughtful decision of the trial court, which has had an opportunity to assess the legal issues which may be raised and to weigh the credibility of at least some of the witnesses. . . . Thus, this court’s review is limited to whether the trial court’s conclusion was reasonable.” (Citation omitted; internal quotation marks omitted.) Clark v. Damiani, 12 Conn. App. 805, 806, 531 A.2d 1202 (1987).

We have considered the arguments of appellate counsel, their briefs and the transcript and record. We find that the conclusions of the trial court had a reasonable basis, and that that court was well within its broad discretion in determining that a prejudgment remedy should not be granted.

The judgment is affirmed.

      Arrowhead transferred substantial real estate assets to the defendant Muri Development, Corporation (Muri) on or about December 14,1990. The individual defendants, Raymond R. Rinaldi and Fred G. Musano, Sr., are officers, directors and shareholders of both Arrowhead and Muri.


text:
    MATTHEW A. CAPOZZIELLO v. COMMISSIONER OF MOTOR VEHICLES
    (AC 18621)
    Lavery, Schaller and Sullivan, Js.
    Submitted on briefs April 1
    officially released May 4, 1999
   Per Curiam. The

judgment is affirmed.


author: Per Curiam.

text:
    JOHN MIKOS v. LISA TINARI
    (AC 18573)
    Lavery, Schaller and Sullivan, Js.
    Submitted on briefs April 1
    officially released May 4, 1999
   Per Curiam.

The judgment is affirmed.


text:
    LISA BENEDICT v. DAVID BETANCOURT
    (AC 18297)
    O’Connell, C. J., and Foti and Landau, Js.
    Argued March 24
    officially released May 4, 1999
   Per Curiam.

The defendant appeals from the trial court’s denial of his motion to open a March 6, 1989 paternity judgment on the ground that it had been obtained by fraud. The trial court conducted a full hearing and concluded that no fraud had been committed.

On appeal, the defendant argues that the trial court should have made different factual findings and reached different conclusions based on the credibility of the witnesses. In effect, we are being asked to substitute our judgment, as to the credibility of the witnesses, for the judgment of the trial court. It is axiomatic that we cannot do that.

The denial of the motion to open the judgment is affirmed.


text:
    LOCAL 2663, COUNCIL 4, AFSCME, AFL-CIO v. STATE BOARD OF LABOR RELATIONS ET AL.
    (AC 18192)
    Lavery, Landau and Schaller, Js.
    Argued April 19
    officially released May 4, 1999
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. JULIO CUEVAS
    (AC 17749)
    Schaller, Hennessy and Dupont, Js.
    Argued April 20
    officially released May 4, 1999
   Per Curiam.

The judgment is affirmed.


text:
    PETER A. RHODES v. WALTER C. SYKES III
    (AC 18251)
    Foti, Landau and Hennessy, Js.
    Argued April 22
    officially released May 4, 1999
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. JAMES GRANT
    (AC 18643)
    Schaller, Spear and Daly, Js.
    Argued April 22
    officially released June 1, 1999
   Per Curiam.

The judgment is affirmed.


text:
    PETER R. HENNING ET AL. v. VINCENT F. ROMEO ET AL.
    (AC 17988)
    Spear, Hennessy and Sullivan, Js.
    Argued April 26
    officially released June 1, 1999
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. GARY D. MARTINO
    (AC 17546)
    O’Connell, C. X, and Sullivan and Healey, Js.
    Argued April 26
    officially released June 1, 1999
   Per Curiam.

The judgments are affirmed.


text:
    BEATRICE ZAVORSKAS v. JOSE SALINAS, COMMISSIONER OF MOTOR VEHICLES
    (AC 18269)
    O’Connell, C. J., and Landau and Sullivan, Js.
    Submitted on briefs May 4
    officially released June 1, 1999
   Per Curiam.

The judgment is affirmed.


text:
    KENNETH F. LEMOINE, JR. v. COMMISSIONER OF CORRECTION ET AL.
    (AC 18391)
    Lavery, Schaller and Hennessy, Js.
    Submitted on briefs May 4
    officially released June 1, 1999
   Per Curiam.

The judgment is affirmed.


text:
    MARILYN WROBLINSKI v. DEPARTMENT OF MOTOR VEHICLES
    (AC 18282)
    Lavery, Schaller and Hennessy, Js.
    Submitted on briefs May 4
    officially released June 1, 1999
   Per Curiam.

The judgment is affirmed.


author: SPEAR, J.

text:
    LITTLE RIVER, LLC v. RICHARD ZAJICEK ET AL.
    (AC 18057)
    Landau, Spear and Cretella, Js.
    Argued February 19
    officially released June 29, 1999

      Alexander Scheirer, for the appellant (named defendant).

      David F. Sherwood, for the appellee (plaintiff).
   Opinion

SPEAR, J.

The named defendant, Richard Zajicek, appeals from the trial court’s denial of his motion to open the judgment of partition by sale.

The plaintiff, the owner of a one-fourth interest in certain real property, tiled a partition action against the other three owners, Richard Zajicek, Donald R. Zajicek and Douglas C. Zajicek. The plaintiff subsequently acquired the interests of Donald R. Zajicek and Douglas C. Zajicek and proceeded with the partition action against Richard Zajicek (Zajicek), the owner of the remaining one-quarter interest.

On July 12, 1996, Zajicek filed a pro se appearance. On the same day, Attorney James Altham, Jr., also tiled an appearance on behalf of Zajicek. The matter was scheduled for trial on December 3, 1997. Sometime in late November, 1997, Zajicek retained Attorney Alexander Scheirer to represent him in lieu of Altham. On November 25, 1997, Scheirer sent via facsimile a letter to Judge Berger requesting a continuance. Scheirer claimed that he was on a trial before another judge in New Haven and was scheduled to begin another trial on December 8,1997, in New Haven. The facsimile was forwarded to Judge Berger along with a note from the clerk that no appearance had been filed by Scheirer. Because there was no appearance in the file, Judge Berger concluded that he could not honor the request.

On December 1, 1997, Scheirer again requested a continuance because (1) he was involved in a trial before another judge, (2) he was scheduled for oral argument before this court on December 3, 1997, (3) he was scheduled to begin another trial on December 8, 1997, and (4) his law partner, also his wife, was unable to appear in his place because her mother was suffering from a terminal disease and was expected to pass away at any moment. Scheirer also filed an appearance on December 2, 1997. That same day, Scheirer sent via facsimile another letter to Judge Berger indicating that his mother-in-law had passed away and that he would be unavailable for trial. Judge Berger denied all the requests for a continuance and stated that the trial would proceed.

The following day, the trial commenced before Judge Lavine. Zajicek was present. Judge Lavine proceeded to lay out the events of the preceding days on the record. He indicated that all requests for a continuance filed by Scheirer had been decided by Judge Berger and that no requests were pending before him. Zajicek indicated that he was very upset that the matter would not be continued for a few days, but that he was willing to proceed. Following the trial, the court rendered a judgment of partition by sale and ordered 75 percent of the net proceeds to be distributed to the plaintiff and the remaining 25 percent to Zajicek.

On December 22, 1997, Scheirer filed a motion to open the judgment that was denied. This appeal followed.

Zajicek claims that by denying his counsel’s requests for a continuance the trial court compelled him to appear pro se and effectively deprived him of his right to legal representation. We disagree.

Both Zajicek’s motion to open the judgment and his request for a continuance were addressed to the trial court’s discretion, and on review we must determine whether the trial court abused its discretion. We focus on the trial court’s denial of Zajicek’s request for a continuance because that denial is the basis for his claim that the trial court improperly denied his motion to open the judgment.

“A reviewing court is bound by the principle that [e]very reasonable presumption in favor of the proper exercise of the trial court’s discretion will be made. Ridgeway v. Ridgeway, 180 Conn. 533, 538, 429 A.2d 801 (1980); State v. Beckenbach, [198 Conn. 43, 47, 501 A.2d 752 (1985)]. State v. Hamilton, 228 Conn. 234, 239-40, 636 A.2d 760 (1994). When determining whether a new trial is required as the result of a trial court’s denial of a request for a continuance, we first must determine whether the trial court’s decision denying the request for a continuance was arbitrary or unreasonably]. Id., 240-42. This determination must be made on a case-by-case basis, with particular reference to the circumstances presented to and known by the trial court at the time of its ruling. Id., 240. There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied.” (Internal quotation marks omitted.) State v. Brown, 242 Conn. 445, 451-52, 700 A.2d 1089 (1997).

Practice Book § 14-25 provides in relevant part: “(b) Attorneys shall not enter or maintain appearances in cases in more than one place in the judicial district in which their principal office is located, or in any other judicial district unless they have trial counsel available to proceed in any case when reached.” Despite that rule and a trial schedule that precluded his availability until some uncertain time in the future, and despite knowing that his wife was also unavailable for trial, Attorney Scheirer decided to risk filing an appearance approximately one week before the known trial date in this case in the hope that the court would grant a continuance. Zajicek now seeks to transform that failed gamble into an abuse of discretion by the trial court. Given the circumstances here and the plain language of the mies of practice, we cannot conclude that the trial court abused its discretion in denying the requests for continuances on the basis of scheduling conflicts with other trials.

We must also briefly address the unfortunate circumstance of the death of Attorney Scheirer’s mother-in-law. Although at first blush it might appear that a continuance was warranted, the facts dictate otherwise. Undoubtedly, the trial court sympathized with Attorney Scheirer, but it is clear that his mother-in-law’s death had nothing to do with his unavailability for trial on December 3,1997. As we have already discussed, other trial commitments, of which he was fully aware prior to filing his appearance, precluded him from appearing at trial in this case.

Zajicek’s remaining claim that he was denied legal representation and, therefore, was compelled to appear pro se is without merit. The trial court’s actions could not have compelled Zajicek to appear pro se because the record reveals that Zajicek filed a pro se appearance almost six months prior to trial. Moreover, Zajicek indicated to the trial court that he was willing to proceed in the absence of Scheirer. On the basis of these facts, we conclude that the trial court did not abuse its discretion in denying Zajicek’s motion to open the judgment.

The judgment is affirmed.

In this opinion the other judges concurred.

       “Our standard of review of a trial court’s denial of a motion to open is well settled. A motion to open and vacate a judgment ... is addressed to the [trial] court’s discretion, and the action of the trial court will not be disturbed on appeal unless it acted unreasonably and in clear abuse of its discretion.” (Internal quotation marks omitted.) Alix v. Leech, 45 Conn. App. 1, 4, 692 A.2d 1309 (1997). “The determination of whether to grant a request for a continuance is within the discretion of the trial court, and will not be disturbed on- appeal absent an abuse of discretion.” (Internal quotation marks omitted.) State v. Brown, 242 Conn. 445, 451, 700 A.2d 1089 (1997).

       Attorney Scheirer claimed that an appearance was filed with his request for a continuance on November 25, 1997.

       Attorney Scheirer’s office was located in the New Haven judicial district, and the trial that is the subject of this appeal took place in the judicial district of Hartford-New Britain at Hartford.


author: CRETELLA, J.

text:
    EMERALD RIDGE PROPERTY OWNERS ASSOCIATION v. CHERYL NOEL THORNTON ET AL.
    (AC 18156)
    Landau, Spear and Cretella, Js.
    Argued February 19
    officially released June 29, 1999

      James M. Miele, with whom, on the brief, was Matthew S. Hall, for the appellant (plaintiff).

      William J. Tracy, Jr., for the appellee (named defendant).

      William J. Sweeney, Jr., for the appellee (defendant Michael Chambrello).

      Edward M. Rosenblatt, for the appellee (defendant Michelle Florian).
   Opinion

CRETELLA, J.

The plaintiff appeals from the judgment rendered in favor of the defendants following the granting by the trial court, Holzberg, J, of the defendants’ motions for summary judgment. Indirectly, the appeal relates to the prior denial by the court, Stengel, J., of the plaintiffs motion for summary judgment. The following facts are relevant to this appeal. The plaintiff filed a motion for summary judgment, which was opposed by the defendants, submitting therewith affidavits and certain supporting documents that are the crux of this dispute. After the court denied that motion, the defendants filed motions for summary judgment with an affidavit that incorporated by reference the same documents, together with a copy of the memorandum of decision denying the plaintiffs motion for summary judgment. Both parties agreed that there are no facts in dispute and that the sole issue is whether the supporting documents that were duly recorded in the Southington land records satisfied the statutory requirements of the Common Interest Ownership Act, General Statutes § 47-200 et seq.

During the hearing before Judge Stengel on the plaintiffs motion for summary judgment, the following colloquy took place:

“[Plaintiffs Attorney]: Your Honor, I don’t think there are any facts in dispute. I think the only question . . . is one of law. I think appropriately the defendants could have filed a cross motion, for a summary judgment. . . . [T]he facts are, the subdivision map was recorded, I don’t think that’s in dispute. The question is, what is the legal effect of recording . . . does [the Common Interest Ownership Act] apply or does it not—I think that’s perfectly appropriate for summary judgment.

“The Court: Are you—are you also conceding that if summary judgment is denied, that ends your cause of action?

“[Plaintiffs Attorney]: Yes, Your Honor.”

“Our standard of review of a trial court’s decision to grant a motion for summary judgment is well established. Zichichi v. Middlesex Memorial Hospital, 204 Conn. 399, 402, 528 A.2d 805 (1987). Practice Book § 17-49, formerly § 384, requires that [t]he judgment sought shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Internal quotation marks omitted.) Hryniewicz v. Wilson, 51 Conn. App. 440, 443, 722 A.2d 288 (1999).

Although Judge Holzberg neither filed a memorandum of decision nor signed a transcript of an oral recitation as to the basis for granting the motions for summary judgment, we may exercise our discretion to review the plaintiffs claim if the unsigned transcript is sufficient to establish the basis of the trial court’s factual conclusions. See State v. Sandra O., 51 Conn. App. 463, 465, 724 A.2d 1127 (1999). That transcript reveals the following statement by one of the defense attorneys: “Well, the posture of the case is that the plaintiff filed a motion for summary judgment in its favor and Judge Stengel issued a written decision [and] ... in the course of [argument on the plaintiffs motion] it was agreed that that decision was going to be dispositive of the plaintiffs case. Judge Stengel ruled against the plaintiff, so the defendants have just, for a procedural matter, filed motions which ought to be granted.”

The defendants, in moving for summary judgment, put before Judge Holzberg the memorandum of decision of Judge Stengel denying the plaintiffs motion for summary judgment, together with an affidavit. The affidavit recited what the transcript discloses, that counsel for the plaintiff had conceded that, if the denial of the plaintiffs motion for summary judgment was legally correct, the defendants were entitled to judgment. We conclude, therefore, that the transcripts are sufficient to place before us a proper record on which we may review this appeal. In this light, we examine the provisions of the Common Interest Ownership Act and the documents placed before the court to ascertain whether those documents were sufficient to meet the statutory requirements to create a community interest thus giving the plaintiff standing to pursue those claims set forth in its complaint.

The heart of the Common Interest Ownership Act relates to the declaration as defined in General Statutes § 47-202 (13) and the data that it must contain as set forth in General Statutes § 47-224 (a) (1) through (14). Judge Stengel found that the recorded documents in the Southington land records identified as (1) “Revised Subdivision Map Emerald Ridge,” (2) “Declaration of Protective Covenants and Easements” and (3) “Declaration of Reciprocal Easements, Easements and Maintenance Arrangement” lacked the required information to create a common interest community under the provisions of the Common Interest Ownership Act. Specifically, neither the restrictive covenants nor the reciprocal easement document contained any elements to satisfy § 47-224 (a) (1), (5), (6), (11), (13) and (14), which “ [t]he declaration shall contain . . . .’’(Emphasis added.) General Statutes § 47-224 (a). We conclude, therefore, that after an examination of the data set forth in the aforementioned recorded documents, together with the many admissions by the plaintiff made in response to the defendants’ December 12,1997 requests for admissions, these documents clearly establish that many of the essential provisions required by the Common Interest Ownership Act to be included in a recorded declaration are lacking. See footnote 1.

The trial court correctly found that the lack of the data required by statute was the basis for the denial of the plaintiffs motion for summary judgment and the basis for granting the defendants’ motions.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 47-224 (a) provides: “The declaration shall contain:
      “ (1) The names of the common interest community and the association and a statement that the common interest community is either a condominium, cooperative or planned community;
      “(2) The name of every town in which any part of the common interest community is situated;
      “(3) A legally sufficient description of the real property included in the common interest community;
      “(4) A statement of the maximum number of units that the declarant reserves the right to create;
      “(5) In a condominium or planned community, a description of the boundaries of each unit created by the declaration, including the unit’s identifying number or, in a cooperative, a description, which may be by surveys or plans, of each unit created by the declaration, including the unit’s identifying number, its size or number of rooms and its location within a building if it is within a building containing more than one unit;
      “(6) A description of any limited common elements, other than those specified in subsections (2) and (4) of section 47-221, as provided in subdivision (10) of subsection (b) of section 47-228 and, in a planned community, any real property that is or must become common elements;
      “(7) A description of any real property, except real property subject to development rights, that may be allocated subsequently as limited common elements, other than limited common elements specified in subsections (2) and (4) of section 47-221, together with a statement that they may be so allocated;
      “(8) A description of any development rights, as defined in subsection (14) of section 47-202, and other special declarant rights, as defined in subsection (29) of section 47-202, reserved by the declarant, together with a legally sufficient description of the real property to which each of those rights applies and a time limit within which each of those rights must be exercised;
      “(9) If any development right may be exercised with respect to different parcels of real property at different times, a statement to that effect together with (A) either a statement fixing the boundaries of those portions and regulating the order in which those portions may be subjected to the exercise of each development right or a statement that no assurances are made in those regards, and (B) a statement as to whether, if any development right is exercised in any portion of the real property subject to that development right, that development right must be exercised in all or in any other portion of the remainder of that real property;
      “(10) Any other conditions or limitations under which the rights described in subdivision (8) of this subsection may be exercised or will lapse;
      “(11) An allocation to each unit of the allocated interests in the manner described in section 47-226;
      “(12) Any restrictions (A) on alienation of the units, including any restrictions on leasing which exceed the restrictions on leasing units which executive boards may impose pursuant to subdivision (2) of subsection (c) of section 47-244, and (B) on the amount for which a unit may be sold or on the amount that may be received by a unit owner on sale, condemnation or casualty loss to the unit or to the common interest community, or on termination of the common interest community;
      “(13) The recording data for recorded easements and licenses appurtenant to or included in the common interest community or to which any portion of the common interest community is or may become subject by virtue of a reservation in the declaration; and
      “(14) All matters required by sections 47-225 to 47-228, inclusive, sections 47-234 and 47-235 and subsection (d) of section 47-245.”

       See footnote 1.


text:
    MARTIN HAMMOND v. COMMISSIONER OF CORRECTION
    (AC 17784)
    Foti, Spear and Iiennessy, Js.

      Argued January 13
    officially released June 29, 1999

      Temmy Ann Pieszak, supervisory assistant public defender, for the appellant (petitioner).

      Madeline A. Melehionne, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Steven R. Strom, assistant attorney general, for the appellee (respondent).
   Opinion

HENNESSY, J.

The petitioner, Martin Hammond, appeals from the judgment of the habeas court dismissing his petition for writ of habeas corpus. The petitioner claims that the habeas court improperly concluded that he was not entitled to receive credit lor certain presentence confinement because the cases relied on by the habeas court, Johnson v. Manson, 196 Conn. 309, 493 A.2d 846 (1985), cert. denied, 474 U.S. 1063, 106 S. Ct. 813, 88 L. Ed. 2d 787 (1986), and Taylor v. Robinson, 196 Conn. 572, 494 A.2d 1195 (1985), appeal dismissed, 475 U.S. 1002, 106 S. Ct. 1172, 89 L. Ed. 2d 291 (1986), are not controlling in this case. We affirm the judgment of the habeas court.

The following undisputed facts are relevant to this appeal. The petitioner was arrested in Massachusetts on August 26,1985, pursuant to a fugitive warrant issued by the state of Connecticut in connection with a homicide. He was committed to the custody of the Connecticut department of correction from January 8,1986, until his sentencing on June 9, 1986. The department of correction awarded the petitioner 152 days of presentence confinement credit for his time spent in a Connecticut department of correction facility. He also received fifty days of presentence good time credit based on the 152 days of presentence confinement.

The petitioner claimed in his habeas petition that he should have been awarded presentence confinement credit and presentence good time credit for the time he spent confined in Massachusetts from August 26, 1985, to January 2, 1986, and for the time he was in custody of the Bristol police department pending arraignment from January 2, 1986, to January 8, 1986. The habeas court, relying on Johnson and Taylor, denied the petition, holding that it is “well established in this state that a prisoner who was incarcerated in another state and was contesting his or her extradition back to the state of Connecticut, or is not contesting his or her extradition back to the state of Connecticut, does not receive credit for such jail time when it is presentence time.” The petitioner filed a petition for certification to appeal, which the habeas court granted. This appeal followed.

The petitioner claims that General Statutes § 18-98d, the relevant statute, does not contain the same wording as General Statutes § 18-98, the statute construed by the Johnson and Taylor courts, and, therefore, those cases are not controlling. Specifically, the petitioner argues that the statute no longer refers to persons “awaiting trial” and now refers to persons confined to a community correctional center or a correctional institution. The petitioner argues that this “more general” language permits credit under his circumstances.

In Johnson, our Supreme Court determined whether a petitioner in a habeas corpus proceeding must be credited under § 18-98 for time spent in a Florida jail while resisting extradition to Connecticut on a charge of escape from custody. Johnson v. Manson, supra, 196 Conn. 310. The Johnson court, in interpreting the statute, held that the plain language of the statute indicated that it did not apply to the petitioner’s detention in a Florida jail while awaiting extradition, and, therefore, the petitioner was not entitled to any credit for the time he spent in a Florida jail. Id., 318-19. The Johnson court further held that the commissioner’s denial of the petitioner’s credit was not a violation of his constitutional right to equal protection and due process of the law. Id., 319-28.

In Taylor, the petitioner was held in a New York jail while awaiting extradition to Connecticut. The trial court reversed the commissioner’s denial of credit to the petitioner. Taylor v. Robinson, supra, 196 Conn. 573. Our Supreme Court reversed the trial court’s award of the credit, concluding that its holding in Johnson controlled, and, therefore, § 18-98 does not authorize credit for time that a petitioner is held in another state awaiting extradition. We note that the presentence credit sought by the petitioners in both of those cases was for an offense committed prior to July 1,1981, and, therefore, § 18-98 was the applicable statute. In this case, the petitioner is seeking presentence credit for an offense committed after July 1, 1981, and, therefore, § 18-98d is the applicable statute.

We now turn to the petitioner’s argument that he should have been awarded presentence credit for the time that he was incarcerated in Massachusetts. While Johnson and Taylor are not controlling in that they interpret the statutory language of § 18-98 and not § 18-98d, we conclude that the rationale under Johnson and Taylor is persuasive in this case.

“Statutory construction is a question of law and therefore our review is plenary. Jupiter Realty Co. v. Board of Tax Review, 242 Conn. 363, 367, 698 A.2d 312 (1997). The process of statutory interpretation involves a reasoned search for the intention of the legislature. Frillici v. Westport, 231 Conn. 418, 431, 650 A.2d 557 (1994). In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of this case, including the question of whether the language actually does apply. In seeking to determine that meaning, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter. . . . United Illuminating Co. v. New Haven, 240 Conn. 422, 431, 692 A.2d 742 (1997).” (Internal quotation marks omitted.) Butler v. Hartford Technical Institute, Inc., 243 Conn. 454, 458-59, 704 A.2d 222 (1997). “Where the language of the statute is clear and unambiguous, it is assumed that the words themselves express the intent of the legislature and there is no need for statutory construction or a review of the legislative history. All Brand Importers, Inc. v. Dept. of Liquor Control, 213 Conn. 184, 195, 567 A.2d 1156 (1989).” (Internal quotation marks omitted.) Haesche v. Kissner, 229 Conn. 213, 223, 640 A.2d 89 (1994).

The Johnson court interpreted “community correctional center” in § 18-98 to mean “correctional institution” and concluded, on the basis of the definition of correctional institution in General Statutes § 1-1 (w), that the statute encompassed only institutions situated in Connecticut. Section 18-98d, the statute applicable in this case, provides that “[a]ny person who is confined to a community correctional center or a correctional institution . . . shall . . . earn a reduction of his sentence . . . .” Section 1-1 defines correctional institutions as encompassing certain listed facilities. All of the facilities listed are Connecticut facilities. The rationale in Johnson and the clear and unambiguous language of this statute persuade us that the statute applies only to persons confined in institutions situated in Connecticut.

Furthermore, while § 18-98d does not contain the phrase “awaiting trial,” as did the statute interpreted by the Johnson and Taylor courts, it still does not purport to apply to persons awaiting or contesting extradition. Section 18-98d applies to persons “confined . . . under a mittimus or because such person is unable to obtain bail or is denied bail . . . ,” “Where statutory language is clearly expressed, as here, courts must apply the legislative enactment according to the plain terms and cannot read into the terms of a statute something which manifestly is not there in order to reach what the court thinks would be a just result.” Johnson v. Manson, supra, 196 Conn. 315. Accordingly, we conclude that, like § 18-98, § 18-98d does not apply to persons confined in out-of-state facilities awaiting or contesting extradition.

The petitioner also claims that it is a violation of his rights to due process and equal protection under the United States and the Connecticut constitutions to interpret the statute to preclude credit to a petitioner awaiting extradition in an out-of-state facility. Those arguments were addressed by our Supreme Court in Johnson with regard to § 18-98. Johnson v. Manson, supra, 196 Conn. 319-28. While in this case we are addressing § 18-98d, the petitioner has not persuaded this court that we should depart from the Johnson court’s analysis of those constitutional issues.

The judgment is affirmed.

In this opinion the other judges concurred.

       The petitioner also argues that Johnson and Taylor were wrongly decided and, therefore, should be overturned. The petitioner relies on the reasoning in the dissenting opinion in Johnson and in the concurring opinion in Taylor to urge this court to reverse the majority decisions. Although the petitioner recognizes that this court does not have the authority to overturn a decision of our Supreme Court, he states that his arguments are presented to preserve his right to seek further review. As an intermediate appellate court, “[i]t is nol . . . within our province to overrule or discard the decisions of our Supreme Court.” State v. Oliver, 41 Conn. App. 139, 146, 674 A.2d 1359, cert. denied, 237 Conn. 920, 676 A.2d 1374 (1996).

       General Statutes § 18-98d (a) provides in relevant part: “Any person who is confined to a community correctional center or a correctional institution for an offense committed on or after July 1, 1981, under a mittimus or because such person is unable to obtain bail or is denied bail shall . . . earn a reduction of his sentence equal to the number of days which he spent in such facility . . . provided ... (2) the provisions of this section shall only apply to a person for whom the existence of a mittimus, an inability to obtain bail or the denial of bail is the sole reason for his presentence confinement . . . .”

       General Statutes § 18-98, the statute in effect when Johnson and Taylor were decided, provides in relevant part: “Any person who has been denied bail or who has been unable to obtain bail and who is subsequently imprisoned for an offense committed prior to July 1,1981, is entitled to a commutation of his sentence by the number of days which he spent in a community correctional center .... The Commissioner of Correction shall . . . credit such person with the number of days to which the supervising officer of the correctional center where such person was confined while awaiting trial certifies . . . .”

       Our Supreme Court indicated that the statute “has no language about ‘while awaiting extradition,’ but rather clearly specifies ‘while awaiting trial.’ It is obvious that the ‘awaiting trial’ criterion is critical in determining credits for those so entitled." Johnson v. Manson, supra, 196 Conn. 315. In addition, our Supreme Court interpreted “community correctional center” to mean a correct ional institution that “encompasses institutions situated in Connecticut rather than those institutions outside Connecticut in which one awaiting extradition is confined.” Id., 317.

       The petitioner also claims that the habeas court should have awarded him presentence credit for his time spent under the custody of the Bristol police department. The petitioner, however, failed to make a separate argument with regard to this claim. The petitioner also does not argue that the application of the statue under those facts violates due process and equal protection. “We are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly.” (Citation omitted; internal quotation marks omitted.) Raymond v. Rock Acquisition Ltd. Partnership, 50 Conn. App. 411, 420, 717 A.2d 824 (1998); see also Mercer v. Commissioner of Correction, 49 Conn. App. 819, 820-21 n.1, 717 A.2d 763, cert. denied, 247 Conn. 920, 722 A.2d 801 (1998); Blakeney v. Commissioner of Correction, 47 Conn. App. 568, 586, 706 A.2d 989, cert. denied, 244 Conn. 913, 713 A.2d 830 (1998). “Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned.” (Internal quotation marks omitted.) Cummings v. Twin Tool Mfg. Co., 40 Conn. App. 36, 45, 668 A.2d 1346 (1996). Therefore, we decline to review this claim.

         The commissioner argues that the statute applies only to persons confined under a mittimus. “[Section] 18-98d differs from its predecessors [General Statutes §§ 18-97 and 18-98] in that it merged § 18-97, which dealt with the presentence confinement of those held under a mittimus, and § 18-98, which dealt with the presentence confinement of those unable to obtain bail. Further, § 18-98d added the provision that each day of presentence confinement shall be counted only once for the purpose of reducing all sentences imposed after such presentence confinement. Payton v. Albert, 209 Conn. 23, 30, 547 A.2d 1 (1988).” (Internal quotation marks omitted.) Casey v. Commissioner of Correction, 215 Conn. 695, 700 n.5, 577 A.2d 1051 (1990). Therefore, the statute also applies to persons who are unable to obtain bail or are denied bail.


author: SCHALLER, J.

text:
    STATE OF CONNECTICUT v. MICHAEL HARRIS
    (AC 17487)
    O’Connell, C. J., and Schaller and Sullivan, Js.

      Argued March 24
    officially released June 29, 1999

      Jeremiah Donovan, special public defender, with whom, on the brief, was Mix Biel, law student intern, for the appellant (defendant).

      Denise B. Smoker, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and David J. Strollo, assistant state’s attorney, for the appellee (state).
   Opinion

SCHALLER, J.

The defendant, Michael Harris, appeals from the judgment of conviction, rendered after a jury trial, of assault in the third degree in violation of General Statutes § 53a-61 (a) (3), assault in the first degree in violation of General Statutes § 53a-59 (a) (5), use of a firearm in the commission of a class A, B or C felony in violation of General Statutes § 53-202k and carrying a pistol without a permit in violation of General Statutes § 29-35 (a). On appeal, the defendant claims that the jury’s verdict was legally and logically impossible and that the trial court, therefore, improperly denied his motion for a new trial. We affirm the judgment of the trial court in part and reverse it in part.

The jury reasonably could have found the following facts. On January 22, 1996, Llewellyn Williams was in an apartment on the first floor at 26 Stevens Street in New Haven when the defendant, Llewellyn’s cousin, came in and demanded that Llewellyn give him $50. Llewellyn told the defendant that he would give him the money, but that he did not have it with him. The defendant left the apartment and returned with a gun. An argument ensued between Llewellyn and the defendant. As the argument continued, the defendant pointed a revolver at Llewellyn. Robert Williams, Llewellyn’s twin brother, who had entered the apartment at approximately the same time as the defendant, attempted to defuse the argument between the defendant and Llewellyn. As Robert attempted to restrain the defendant, the defendant fired four shots. One lodged in a wall, two hit Robert and one hit Llewellyn.

Both victims were taken to a hospital where they were treated for gunshot wounds. Llewellyn gave the police a statement at the hospital identifying the defendant as the shooter. Robert’s condition was more serious, and he was unable to give the police a statement at the hospital. A few days later, Robert gave the police a statement in which he identified the defendant as the shooter.

The information charged the defendant with seven separate counts. Counts one through three were directed specifically at the defendant’s actions toward Robert Williams. The fourth and fifth counts were directed specifically at the defendant’s actions toward Llewellyn Williams. Counts six and seven charged the defendant with use of a firearm in the commission of a class A, B or C felony and possession of a firearm without a permit, respectively. Count three, on which the defendant was convicted of the lesser included offense of assault in the third degree, stated: “[The defendant] did, with the intent to cause physical injury to . . . Robert Williams, cause such injury to [Robert] by means of the discharge of a firearm.”

When the juiy returned with its verdict, it originally found the defendant guilty of the lesser included offense of assault in the second degree against Robert. The trial court informed the jury that it did not have that option. The jury could not have found the defendant guilty of assault in the second degree because General Statutes § 53a-60 (a) (3) requires a finding of “serious physical injury,” a result different from that required by § 53a-59 (a) (5). Therefore, the jury was limited to considering the lesser included offense of assault in the third degree in violation of § 53a-61 (a) (3). The jury subsequently retired for additional deliberation and returned with a verdict of guilty of the lesser included offense of assault in the third degree against Robert.

I

“[0]ur standard of review of the trial court’s denial of a motion for a new trial is limited to a determination of whether, by such denial, the court abused its discretion. ... As a reviewing court considering the trial court’s decision granting or denying a motion for a new trial, we must be mindful of the trial judge’s superior opportunity to assess the proceedings over which he or she has personally presided.” (Citations omitted; internal quotation marks omitted.) State v. Hawkins, 51 Conn. App. 248, 260-61, 772 A.2d 278 (1998).

The sole issue on appeal is whether the jury’s verdict finding the defendant guilty of first degree assault against Llewellyn, which requires that the jury find that the defendant acted intentionally, and third degree assault against Robert, which requires that the jury find that the defendant acted with criminal negligence, was legally inconsistent and impossible. “The general rule, to which we subscribe, was set forth by Judge Learned Hand in Steckler v. United States, 7 F.2d 59 (2d Cir. 1925), and was confirmed by Justice Holmes in Dunn v. United States, 284 U.S. 390, 52 S. Ct. 189, 76 L. Ed. 356 (1932). . . . ‘Consistency in the verdict is not necessary. Each count in an indictment is regarded as if it was a separate indictment.’ Id., 393. [Justice Holmes] went on to state: ‘That the verdict may have been the result of compromise, or of a mistake on the part of the jury, is possible. But verdicts cannot be upset by speculation or inquiry into such matters.’ Id., 394.” State v. Stevens, 178 Conn. 649, 653, 425 A.2d 104 (1979).

“We employ a less limited approach, however, when we are confronted with an argument that the verdicts are inconsistent as a matter of law or when the verdicts are based on a legal impossibility. ... In response to such a claim, we look carefully to determine whether the existence of the essential elements for one offense negates the existence of the essential elements for another offense of which the defendant also stands convicted. If that is the case, the verdicts are legally inconsistent and cannot withstand challenge.” (Citations omitted.) State v. Hinton, 227 Conn. 301, 313, 630 A.2d 593 (1993).

The defendant relies on State v. King, 216 Conn. 585, 583 A.2d 896 (1990). In King, our Supreme Court ordered a new trial for the defendant who was convicted of attempted murder, which required a showing of intent, and assault, which required a showing of recklessness, on the same victim. Our Supreme Court reasoned that: “Where a determination is made that one mental state exists, to be legally consistent the other must be found not to exist. . . . Logically then, the jury verdicts convicting the defendant of two offenses each of which requires a mutually exclusive and inconsistent state of mind as an essential element for conviction cannot stand.” (Citations omitted.) Id., 594. We believe that the reasoning of King does not apply under the circumstances of the present case.

Our Supreme Court in State v. Hinton, supra, 227 Conn. 301, dealt with the issue of whether a person could intentionally assault one victim and, in the same action, recklessly assault another victim. In Hinton, the defendant was convicted of assault in the first degree in violation of § 53a-59 (a) (1) and (2), which requires that the defendant act intentionally, and assault in violation of § 53a-59 (a) (3), which requires that the defendant act recklessly. Our Supreme Court stated that the guilty verdicts could be reconciled. “The jury could reasonably have concluded that, in attempting to injure or disfigure someone standing near [the victim], the defendant acted recklessly toward [the victim] and therefore recklessly caused injury to [the victim], satisfying the elements of subdivision (3). Although we said in State v. King, supra, [216 Conn. 585], that a person could not act intentionally and recklessly with regard to the same act and the same result, here we have two different victims and therefore two different results. The jury therefore could reasonably have found that when the defendant fired the shotgun at the group of ten to fifteen young men on the sidewalk, causing eight pellets to be fired, he intended to injure one or more of them and was reckless with regard to the rest, including [the victim].” (Emphasis added.) State v. Hinton, supra, 227 Conn. 314-15.

Hinton controls the present case. The defendant brandished a weapon in Llewellyn’s direction. The jury reasonably could have found that when the defendant discharged the weapon, he intended to injure Llewellyn and was criminally negligent when he injured Robert. Pursuant to the Supreme Court’s analysis in Hinton, the verdict is not legally inconsistent.

II

We next, sua sponte, vacate the defendant’s conviction on the sixth count of the information, violation of General Statutes § 53-202k. While neither party briefed the issue, because of the serious constitutional ramifications, we examine this issue under the plain error doctrine. Practice Book § 60-5.

Our Supreme Court held in State v. Dash, 242 Conn. 143, 150, 698 A.2d 297 (1997), that “§ 53-202k is a sentence enhancement provision and not a separate crime.” We conclude that Dash governs this situation, and further discussion of our Supreme Court’s clear holding would serve no useful purpose. Although the defendant’s total effective sentence was proper, the judgment must be modified to reflect the fact that § 53-202k does not constitute a separate offense. Accordingly, the defendant is entitled to have his conviction under § 53-202k vacated.

The judgment is reversed only as to the separate conviction under § 53-202k and the case is remanded with direction to vacate the defendant’s conviction under § 53-202k and to resentence the defendant to a total effective sentence of seventeen years; the judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       General Statutes § 53a-61 (a) provides in relevant part: “A person is guilty of assault in the third degree when ... (3) with criminal negligence, he causes physical injury to another person by means of a deadly weapon . . . .”

       General Statutes § 53a-59 (a) provides in relevant part: “A person is guilty of assault in the first degree when ... (5) with intent to cause physical injury to another person, he causes such injury to such person or to a third person by means of the discharge of a firearm.”

       The defendant was acquitted of an additional count of assault in the first degree and two counts of attempt to commit assault in the first degree.

       The trial court instructed the jury as follows: “As to the third and fifth count, which is the assault first with a firearm. First, assault first with a firearm is where with intent to cause physical injury to another person he causes such injury by means of discharge of a firearm. So for this you have to prove beyond a reasonable doubt that the defendant intended to cause physical injury by means of a discharge of a firearm .... The lesser of that degree—first, if you don't find him guilty of § 53a-59 (a) (5) then you go to the lesser included, which is assault third with a deadly weapon.”

       When the verdict was read back to the jury, the following colloquy took place:
      “Clerk: You, ladies and gentlemen of the jury and each of you, do say unanimously that the defendant is guilty of assault with a deadly weapon in the third degree. This is your verdict and so say you all?
      “Jury: No.
      “Foreperson: I thought we had—we said second degree on that.
      “The Court: I need the—this is under the (a) (5) count.
      “Foreperson: It should be count three.
      “The Court: Count three.
      “Foreperson: It’s in the second degree.
      “The Court: That’s solidly definitely weapon in the third degree. That’s what was charged on. As to the third and fifth counts. ... So the second degree only pertained to the first count.
      * ** *
      “The Court: So the only thing I would ask you to do is go back in as to the third count, the lesser include offense, which—you were charged on assault with a deadly weapon third degree ....
      * * *
      “Clerk: How say you to the lesser included count of assault with a deadly weapon in the third degree in violation of General Statutes § 53a-61 (a) (3)?
      “Foreperson: We find the defendant guilty.
      “The Court: All right. And you’ve had due time to consider the verdict?
      “Foreperson: Yes. We considered it as a group.”

       General Statutes § 53a-3 (11) provides: “A person acts ‘intentionally’ with respect to a result or to conduct described by a statute defining an offense when his conscious objective is to cause such result or to engage in such conduct

       General Statutes § 53a-3 (14) provides: “A person acts with ‘criminal negligence’ with respect to a result or to a circumstance described by a statute defining an offense when he fails to perceive a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation

       We note that the Supreme Court in Hinton ordered a new trial for the defendant on the charges of attempt to commit murder and assault in the first degree of a single victim because attempt to commit murder required a finding of intent, and assault under § 53a-59 (a) (3) required a finding of recklessness. We also note, however, that both of those charges involved a single victim.