author: SCHALLER, J.

text:
    STATE OF CONNECTICUT v. ROBERT WARD
    (AC 22781)
    Lavery, C. J., and Schaller and West, Js.

      Argued January 7
    officially released May 20, 2003

      Alice Osedach-Powers, assistant public defender, for the appellant (defendant).

      Frederick W. Fawcett, supervisory assistant state’s attorney, with whom, on the brief, were Jonathan C.

      Benedict, state’s attorney, and Margaret E. Kelley, senior assistant state’s attorney, for the appellee (state).
   Opinion

SCHALLER, J.

The defendant, Robert Ward, appeals from the judgment of conviction, rendered after a jury trial, of burglary in the second degree in violation of General Statutes (Rev. to 1999) § 53a-102 (a). On appeal, the defendant claims that (1) the trial court improperly denied his motion to set aside the verdict and for a new trial, and (2) that the evidence was insufficient to sustain the conviction. We affirm the judgment of the trial court.

The jury reasonably could have found the following relevant facts. In June, 2000, Willie Blake lived in a six-family apartment house at 103 Catherine Street in Bridgeport with his sister, Rosalee Blake, his brother, John Blake, Sr., his nephew, John Blake, Jr., and his nieces, Teshawn and Tangie.

At approximately 9 p.m. on June 30, 2000, the defendant and Hakeem Mohammed rang Willie Blake’s apartment doorbell. Willie Blake, who was home watching over his nephew and nieces, answered the door. The defendant and Mohammed questioned Willie Blake regarding the whereabouts of John Blake, Sr. Willie Blake informed them that his brother was not home. The defendant accused Willie Blake of lying and pushed his way into the apartment by wedging a wooden stick between the door and the door frame. Once inside, the defendant began swinging the stick, acting aggressively and using profanity. That behavior upset the children. The defendant remained in the house for approximately thirty minutes while searching for John Blake, Sr. As the defendant was leaving, the defendant remarked that he should have hit Willie Blake with the stick. The defendant also remarked that he and Mohammed would return and that if Willie Blake called the police, they would “shoot up the house.”

At 10:30 p.m. on June 30,2000, the defendant returned to the apartment door by himself. The defendant did not have the stick and remained on the front porch. Willie Blake telephoned the police. By the time the police arrived, however, the defendant already had driven away in a car with Mohammed.

At 12:45 a.m. on July 1, 2000, the defendant returned to Willie Blake’s apartment. This time, Rosalee Blake, who had recently returned home from work, answered the door. The defendant was carrying a wooden stick and asked if John Blake, Sr., was home. Rosalee Blake informed him that her brother was not home. The defendant forced his way into the apartment and began using profane language while making threats regarding John Blake, Sr. Willie Blake and Rosalee Blake had to physically force the defendant out of their home. The police were called. Upon arrival, the police arrested the defendant, who was standing outside of the apartment.

In a long form information, the state charged the defendant with one count of burglary in the first degree in violation of General Statutes § 53a-101 (a) (1), three counts of risk of injury to a child in violation of General Statutes § 53-21 and one count of threatening in violation of General Statutes (Rev. to (1999) § 53a-62 (a) (1).

In September, 2001, the state filed a substitute information adding one count of conspiracy to commit burglary in the first degree in violation of General Statutes §§ 53a-48 (1) and 53a-101 (a) (1). Finally, on October 23, 2001, the state amended the information to specify that the place burglarized was “the home of Willie or Rosalee Blake.”

A juiy trial began on December 10, 2001. After the state rested, the defendant sought to dismiss all of the charges and obtain a judgment of acquittal as to all six counts. The court granted the motion with respect to the conspiracy to commit burglary count (count two) and the counts of risk of injury to a child (counts three, four and five). Thereafter, the state filed a substitute information charging the defendant with the remaining counts, one count of burglary in the first degree and one count of threatening.

During counsels’ closing arguments to the jury, the court determined that the state had failed to allege sufficient evidence to support a charge of burglary in the first degree and, sua sponte, ordered the state to draw and file a substitute information replacing burglary in the first degree with burglary in the second degree. The defendant did not object or otherwise challenge the court’s authority to order the substitution. The state filed the substitute information as ordered. The jury subsequently returned a guilty verdict with respect to the charge of burglary in the second degree and acquitted the defendant with respect to the threatening charge.

On December 14, 2001, the defendant filed a motion for a new trial or, in the alternative, to set aside the verdict, wherein the defendant argued that he was never given proper notice of the charge of burglary in the second degree. After a hearing on January 18, 2002, the court denied the motion, concluding that the charging instrument placed the defendant on notice that he also was charged with burglary in the second degree. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant claims that the court improperly denied his motion to set aside the verdict and for a new trial. Specifically, the defendant argues (1) that the corut improperly ordered, sua sponte, that the state amend the information by substituting the charge of burglary in the second degree for the charge of burglary in the first degree, and (2) that Practice Book § 36-18 prohibited the amendment to the information.

A

The defendant first argues that the court improperly ordered, sua sponte, that the state amend the information by substituting the charge of burglary in the second degree for the charge of burglary in the first degree. More specifically, the defendant contends that the amendment was improper because burglary in the second degree is not a lesser included offense of burglary in the first degree and, therefore, the initial charge of burglary in the first degree failed to provide the defendant with adequate notice of the charges against him in violation of the sixth amendment to the United States constitution and the constitution of Connecticut, article first, § 8.

The following additional facts are relevant to the proper resolution of the defendant’s claim. In the amended information dated October 23, 2001, the state charged the defendant with burglary in the first degree, stating, inter alia, “that at the City of Bridgeport, Fair-field County, on or about the 30th day of June 2000 at or about 11:33 p.m., at 103 Catherine Street, Bridgeport, the said Robert Ward, while armed with a dangerous instrument, to wit: a large wooden stick, did enter or remain unlawfully in a building, the home of Willie or Rosalee Blake, with intent to commit a crime therein, in violation of Section 53a-101 (a) (1) of the Connecticut General Statutes . . . .”

During trial and after the state had rested, the defendant sought to dismiss each count of the six count information. The court granted the motion with respect to the charges of conspiracy to commit burglary and risk of injury to a child. Following the dismissal of those counts, the defendant offered his opening statement. Having heard the opening statement, the court indicated that it might make additional revisions to the charges after it had an opportunity to review Willie Blake’s testimony. The jury was excused for a brief recess. When the court reconvened, it informed counsel that it was dismissing the charge of burglary in the first degree and that it was ordering, sua sponte, that the state amend and file a substitute information replacing the charge of burglary in the first degree with a charge of burglary in the second degree. The court determined that on the basis of the precise time alleged in the information, 11:33 p.m., the testimony by Willie Blake that the defendant did not have a stick when he returned to the apartment at 11:30 p.m., and the conflicting testimony by Blake and police officers with respect to the timing of the incidents led to the conclusion that the information improperly alleged burglary in the first degree.

The state complied with the court’s order. In the substitute information filed on December 10, 2001, the state charged the defendant with burglary in the second degree alleging, inter alia, “that at the City of Bridgeport, Fairfield County, on or about the 30th day of June 2000 at or about 11:33 p.m., at 103 Catherine Street, Bridgeport, the said Robert Ward, did enter or remain unlawfully in a dwelling, the home of Willie or Rosalee Blake, at night, with intent to commit a crime therein, in violation of section § 53a-102 of the Connecticut General Statutes . . . .” The jury subsequently convicted the defendant of burglary in the second degree.

The proper appellate standard of review when considering the action of a trial court granting or denying a motion to set aside a verdict and a motion for a new trial is the abuse of discretion standard. See State v. Hammond, 221 Conn. 264, 267-70, 604 A.2d 793 (1992); see also Bolmer v. McKulsky, 74 Conn. App. 499, 510, 812 A.2d 869, cert. denied, 262 Conn. 954, 818 A.2d 780 (2003). “In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court’s ruling. . . . Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done.” (Internal quotation marks omitted.) State v. Fitzgerald, 257 Conn. 106, 112, 777 A.2d 580 (2001).

Additionally, it is within the trial court’s discretion to allow an amendment to the information. Accordingly, on appeal, review of the court’s decision to permit an amendment to the information also is one of abuse of discretion. State v. Nicholson, 71 Conn. App. 585, 595, 803 A.2d 391, cert. denied, 261 Conn. 941, 808 A.2d 1134 (2002).

Practice Book § 36-18 permits the state to amend the information as long as “no additional or different offense is charged and no substantive rights of the defendant would be prejudiced. . . .” To determine whether the court abused its discretion, we must determine whether the amendment charged a new or different offense. We therefore must first resolve the issue of whether burglary in the second degree is a lesser offense included within burglary in the first degree.

“A criminal defendant has a constitutional right to be informed of the nature and cause of the charges against him with sufficient precision to enable him to meet them at trial. . . . The state satisfies this constitutional mandate when its pleadings inform the defendant of the charge [s] against him with sufficient precision to enable him to prepare his defense and to avoid prejudicial surprise, and [are] definite enough to enable him to plead his acquittal or conviction in bar of any future prosecution for the same offense . . . .” (Citation omitted; internal quotation marks omitted.) State v. Ferreira, 54 Conn. App. 763, 767, 739 A.2d 266, cert. denied, 251 Conn. 916, 740 A.2d 866 (1999).

“Nothing is more elementary in criminal law than that an accused is required to defend only against the charge [s] alleged. . . . The information serves the very important function of informing the defendant of the nature and cause of the accusation as required by our federal and state constitutions. U.S. Const., amend. VI; Conn. Const., art. I, § 8. . . . Where one or more offenses are lesser than and included in the crime charged in the information, notice of the crime charged includes notice of all lesser included offenses. . . .

“There are [separate] tests comparing one crime with another to determine if one is a lesser included offense of the other or if the two are separate crimes. See Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932). . . . The test for determining whether one crime is a lesser included offense of another crime is whether it is possible to commit the greater offense in the manner described in the information or bill of particulars without having first committed the lesser. . . . The lesser included offense doctrine [therefore] implicates notice requirements of due process.” (Citations omitted; internal quotation marks omitted.) State v. Falcon, 26 Conn. App. 259, 263-64, 600 A.2d 1364 (1991), cert. denied, 221 Conn. 911, 602 A.2d 10 (1992).

As we have stated, “[w]e do not undertake a comparison of the elements of one crime to another when the notice requirement of due process is at issue.” (Emphasis added.) State v. Coleman, 41 Conn. App. 255, 272, 675 A.2d 887 (1996), rev’d on other grounds, 242 Conn. 523, 700 A.2d 14 (1997); see also State v. Ferreira, supra, 54 Conn. App. 768-79. Instead, we must determine whether it was possible to commit the greater offense, in the manner described in the information, without having first committed the lesser offense.

The defendant in this case incorrectly relies on the separate offense doctrine to show a lack of notice, and puts forth merely a comparison of the elements of the two offenses to conclude that burglary in the second degree is not a lesser offense included within burglary in the first degree. Specifically, the defendant notes that burglary in the second degree requires proof that the offense occurred at night and in a dwelling while burglary in the first degree does not. The defendant also asserts that burglary in the first degree requires proof that he was armed with a dangerous instrument while burglary in the second degree does not. On the basis of those distinguishing elements, the defendant principally relies on State v. Coleman, 242 Conn. 523, 700 A.2d 14 (1997), for the proposition that our Supreme Court conclusively determined that burglary in the second degree can never be a lesser offense included within burglary in the first degree. We disagree with the defendant’s narrow reading of Coleman and conclude that as long as the state provides sufficient descriptive facts in the information alleging burglary in the first degree such that it was not possible to commit the greater offense without also committing the lesser offense, the information places the defendant on notice of the lesser offense of burglary in the second degree. See State v. Montanez, 71 Conn. App. 246, 801 A.2d 868, cert. denied, 261 Conn. 935, 806 A.2d 1069 (2002).

In Montanez, the trial court instructed the jury that accessory to manslaughter in the first degree with a firearm was a lesser offense included within the greater offense of murder as an accessory. Id., 255. The defendant subsequently was convicted on the lesser offense. Id., 248. On appeal, the defendant claimed that the court should not have instructed the jury as to the lesser included offense because he was not placed on fair notice that he faced conviction of that crime. Id., 255. Contrary to the defendant’s argument, we stated that “ [manslaughter in the first degree with a firearm can be a lesser included offense of murder. . . . The former crime requires, however, proof of an additional element, the use of a firearm, that is not a necessary element of murder, as defined in our statutes. Where murder is charged, the court is permitted to instruct the jury as to the lesser included offense of manslaughter in the first degree with a firearm only if the charging documents sufficiently allege that the defendant committed murder with the use of a firearm, thereby making that element a necessary element of the crime charged. ” (Citations omitted; emphasis added.) Id., 257.

On the basis of the charging instrument’s specificity, in Montanez, we concluded that it would have been impossible for the defendant to have committed the greater offense, in the manner alleged in the information, without also committing the lesser offense. The state’s information specifically charged the defendant with “the crime of murder in violation of Connecticut General Statutes §§ 53a-54a and 53a-8 and [alleged] that on or about August 14, 1995, at approximately 9:00 PM, at 37-39 School Street, Hartford, Connecticut, said defendant, with the intent to cause the death of Robert Brown, did intentionally aid his accomplice, Jorge Ramos, who did shoot and cause the death of Robert Brown.” (Emphasis added; internal quotation marks omitted.) State v. Montanez, supra, 71 Conn. App. 258. In essence, the information stated that the defendant was accused of aiding in the “shooting” death of the victim. The lesser included offense of manslaughter in the first degree with a firearm requires the use of a “firearm.” We concluded that because General Statutes § 53a-3 (19) defines “firearm” as a weapon from which a “shot” maybe discharged, the information, in conjunction with the General Statutes, provided the defendant with sufficient notice because a firearm is the only type of deadly weapon under our Penal Code capable of discharging a shot. State v. Montanez, supra, 258-59.

Despite the defendant’s argument to the contrary, Montanez is consistent with our Supreme Court’s holding in State v. Coleman, supra, 242 Conn. 523. As this court did in Montanez, the Supreme Court in Coleman examined the charging instrument to determine the specificity with which it was drawn. In Coleman, the defendant was charged with burglary in the first degree alleging that “on or about the 4th day of March, 1986, prior to 4:00 a.m., in the area of . . . Orange Street, the [defendant] entered or remained unlawfully in a building with the intent to commit a crime therein (to wit: a sexual assault and/or theft), and he was armed with a dangerous instrument (to wit: a sharp cutting instrument), in violation of Section 53a-101 (a) (1) of the Connecticut General Statutes.” (Internal quotation marks omitted.) State v. Coleman, supra, 242 Conn. 533 n.16. The trial court dismissed that count, but considered the state’s request to consider a lesser included offense of burglary in the second degree. Id., 530-31; see also State v. Coleman, supra, 41 Conn. App. 270. The state filed a substitute information alleging burglary in the second degree, and the defendant subsequently was convicted of burglary in the second degree. State v. Coleman, supra, 242 Conn. 531.

The defendant appealed to this court in State v. Coleman, supra, 41 Conn. App. 255, arguing that the charging instrument violated his constitutional right to fair notice. Id., 270. We affirmed the judgment of the trial court and concluded that in light of the information, the charge of burglary in the second degree was a lesser included offense. Id., 272-73. On appeal, the Supreme Court reversed our decision after a careful examination of the charging instrument. The Supreme Court noted that the information failed to contain specific facts and alleged only “that the defendant had burglarized a building . . . [and that] it was possible for the defendant to have committed the crime of burglary in the first degree . . . witkout also having committed the lesser offense of entering a dwelling . . . .” (Emphasis added.) State v. Coleman, supra, 242 Conn. 533.

Turning to the facts in this case, the October 23, 2001 information describes the greater offense in a manner in which it was not possible to have committed that greater offense, burglary in the first degree, without also having committed the lesser offense of burglary in the second degree. The defendant concedes that the information put him on notice of the charge of burglary in the first degree. Because the only additional elements of which the defendant would have to be put on notice to be charged properly with burglary in the second degree are “at night” and “dwelling,” we must examine the October 23, 2001 charging instrument to determine whether it put the defendant on notice of those two additional elements and the offense of burglary in the second degree.

First, the information put the defendant on notice that he was accused of entering or unlawfully remaining in a dwelling. The information charged the defendant with entering a building at 103 Catherine Street and in particular, the home of either Willie Blake or Rosalee Blake. Although it is true that the crime of burglary in the second degree requires the element of a “dwelling” as opposed to “building,” our General Statutes define “dwelling” as a type of building “which is usually occupied by a person lodging therein at night, whether or not a person is actually present. . . .” General Statutes § 53a-100 (a) (2). An apartment is a place usually occupied by a person lodging there at night. Ftirther, the defendant cannot argue that he was not on notice of the fact that an individual apartment, within an apartment home, while a dwelling, also is a separate building. See General Statutes § 53a-100 (1) (“[w]here a building consists of separate units, such as, but not limited to separate apartments . . . any unit not occupied by the actor is, in addition to being a part of such building, a separate building” [emphasis added]). The defendant also does not contest that the building in question was an apartment. Therefore, the defendant was on notice that the home owned by Willie Blake or Rosalee Blake at 103 Catherine Street in Bridgeport was a dwelling. By comparison, the information in State v. Coleman, supra, 242 Conn. 523, provided that the defendant entered a building on a named street without: (1) providing a specific address; (2) providing information as to who resided at the building, if anyone; (3) naming the owner of the building; or (4) indicating that the building was the home of any person. Accordingly, on the basis of the detailed facts contained in the information in this case, we conclude that the information provided the defendant with sufficient details to put him on notice that he was accused of unlawfully entering or remaining in the subject dwelling.

Second, the defendant was put on notice that he was charged with entering the dwelling at night. The defendant argues that because the information in this case provides a very specific time, 11:33 p.m., instead of using the term “at night,” that the information failed to put him on notice that he was accused of entering the dwelling during nighttime. Again, in light of Montanez, we disagree. In Montanez, the state did not incorporate into the information the statutory term “firearm.” Instead, in the information, the state alluded to the use of a firearm by using the language “who did shoot and cause the death of Robert Brown.” (Emphasis added; internal quotation marks omitted.) State v. Montanez, supra, 71 Conn. App. 258. In that case, we concluded that the information was sufficient to put the defendant on notice of the firearm. Here, the information does not employ the statutory term “at night,” but instead provides the precise time, 11:33 p.m.

That analysis presumes that 11:33 p.m. fell within the statutory definition of “at night.” When our Supreme Court addressed the same issue in Coleman, it did not express any opinion on our previous disposition of that issue. See State v. Coleman, supra, 242 Conn. 533 n.18. In State v. Coleman, supra, 41 Conn. App. 272, we stated that “[w]hile the crime of burglary in the first degree did not require the state to allege that the defendant committed the crime at night, it is clear that the state did allege that fact in the information by stating that the crime occurred . . . prior to 4 a.m. We conclude, therefore, that it was not possible for the defendant to commit burglary in the first degree, in the manner described in the information, without first having committed burglary in the second degree.” Because the information in this case provides a time element, 11:33 p.m., we agree with our analysis in Coleman and conclude that the defendant was on notice that he was accused of entering the dwelling at night.

Consequently, the charging instrument put the defendant on notice of the lesser included offense and the court’s sua sponte order requiring the state to file a substitute information was not an abuse of discretion. The defendant’s motion was denied properly.

B

The defendant also argues that Practice Book § 36-18 prohibited the amendment to the information. We disagree.

“After commencement of the trial for good cause shown, the judicial authority may permit the prosecuting authority to amend the information at any time before a verdict or finding if no additional or different offense is charged and no substantive rights of the defendant would be prejudiced. . . .” (Emphasis added.) Practice Book § 36-18. “The state’s right to amend must be limited to substitutions that do not charge the defendant with an additional or different offense because the defendant has a constitutional right to fair notice, prior to the commencement of trial, of the charges against which he must defend himself.” (Internal quotation marks omitted.) State v. Vaughn, 20 Conn. App. 386, 389, 567 A.2d 392 (1989).

Because a defendant is presumed to have notice of lesser included offenses; see State v. Martin, 187 Conn. 216, 219, 445 A.2d 585 (1982), citing Paterno v. Lyons, 334 U.S. 314, 320-21, 68 S. Ct. 1044, 92 L. Ed. 1409 (1948); and because we concluded in part I A that, as char ged in the information, burglary in the second degree is a lesser offense included within burglary in the first degree, no additional or different offense was charged that would be in violation of Practice Book § 36-18, and the defendant had notice of that charge. His argument is therefore without merit.

II

Next, the defendant claims that the state failed to produce sufficient evidence to establish the requisite element of intent to support his conviction of burglary in the second degree. Specifically, he argues that the evidence was insufficient for the jury to reasonably conclude (1) that the crime took place at night, and (2) that he had an intent to commit the crime of threatening against Willie Brown. We are not persuaded.

“The standard of review employed in a sufficiency of the evidence claim is well settled. [W]e apply a two part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [juiy] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Green, 261 Conn. 653, 667, 804 A.2d 810 (2002).

A

The defendant first argues that the evidence was insufficient to sustain his conviction for burglary in the second degree because the state failed to offer sufficient evidence to support a jury finding that the crime took place at night. We disagree.

General Statutes (Rev. to 1999) § 53a-102 provides that “ [a] person is guilty of burglary in the second degree when he enters or remains unlawfully in a dwelling at night with intent to commit a dime therein . . . .” “Night” is defined in § 53a-100 (a) (3) as “the period between thirty minutes after sunset and thirty minutes before sunrise.”

In his brief, the defendant argues that because Willie Blake’s testimony indicated that the defendant entered the apartment at 9 p.m. and because the state offered no evidence to indicate that 9 p.m. in late June in Bridgeport is “night,” the evidence was insufficient to support the conviction. That argument ignores the testimony of Rosalee Blake and Officer Jose Paz and Sergeant Kevin Gilleran of the Bridgeport police department. The testimony of those witnesses reasonably could support a jury finding that the defendant unlawfully had entered the apartment at night.

Rosalee Blake testified that approximately fifteen minutes after she returned home from work, at 12:30 a.m., the defendant knocked on the front door. When she answered the door, the defendant forced his way into the home, carrying a “stick” the size of broom handle, and began “swearing and saying bad words [regarding] what he was [going] to do to [her] brother.”

Paz and Gilleran testified that during their night patrol shift, they responded to a report of threatening at 103 Catherine Street between 11 p.m. and 11:40 p.m. They also testified that they were later dispatched again to the same address at 2 a.m.

The jury is the arbiter of fact and “[credibility is within the sole province of the fact finder.” State v. Rogelstad, 73 Conn. App. 17, 25-26, 806 A.2d 1089 (2002). It is axiomatic that the jury, in its role as fact finder, may choose to believe all, some or none of a witness’ testimony. State v. Fullard, 5 Conn. App. 338, 342, 497 A.2d 1041 (1985). “In assessing the credibility of a witness, jurors are permitted to rely on their everyday experience. Common sense does not take flight at the courthouse door.” State v. Rivera, 74 Conn. App. 129, 138, 810 A.2d 824 (2002). The jury reasonably could have concluded that the relevant incident occurred at 12:45 a.m., and that the time of 12:45 a.m. fell within the period between thirty minutes after sunset and thirty minutes before sunrise. See General Statutes § 53a-100 (a) (3).

Accordingly, construing the evidence in the light most favorable to sustaining the verdict, we conclude that the jury reasonably could have concluded that the cumulative force of the evidence established that an unlawful entry had occurred at night.

B

The defendant also argues that the evidence presented to the jury was insufficient to prove beyond a reasonable doubt that he had entered the subject dwelling with an intent to commit the crime of threatening against Willie Blake. We disagree.

“Intent is a mental process, and absent an outright declaration of intent, must be proved through inferences drawn from the actions of an individual, i.e., by circumstantial evidence. . . . Furthermore, any inference drawn must be rationale and founded upon the evidence.” (Citation omitted; internal quotation marks omitted.) State v. Iovieno, 14 Conn. App. 710, 715, 543 A.2d 766, cert. denied, 209 Conn. 805, 548 A.2d 440 (1988).

The fact that the threatening charge itself was not proven does not necessarily vitiate the guilty verdict on the burglary charge. See id., 717. The crime proscribed by § 53a-102 is complete once there has been an unlawful entering or remaining in a dwelling, at night, with the intent to commit a crime in that dwelling. See id. “This is so because the crime proscribed by [§ 53a-102] is complete once there has been an unlawful entering or remaining in a [dwelling] with the intent to commit a crime in that [dwelling]. Where, for example, the claim is that the crime intended to be committed by the burglar was larceny, the fact that there is no actual larceny does not bar a conviction for burglary.” State v. Little, 194 Conn. 665, 675-76, 485 A.2d 913 (1984).

The jury reasonably could have inferred from the evidence that the defendant had intended to commit the crime of threatening against Willie Blake inside the subject dwelling. Willie Blake testified that at 9:30 p.m., the defendant forced his way into the dwelling with a two-by-four while acting in an aggressive manner and using profane language. The defendant’s behavior frightened the children. The defendant was in the house for approximately thirty minutes. On his way out, the defendant told Willie Blake that he should have hit Willie Blake with the wooden stick. The defendant then added that if Willie Blake called the police that he “would come back and shoot up the house.” Subsequently, at 11:30 p.m., Willie Blake informed Paz and Gilleran that the defendant had threatened to hit him with a stick. Again, at 2 a.m., on July 1, Willie Blake informed Gilleran that the defendant, who had just been arrested outside the subject dwelling, “had threatened him with a stick.”

Additionally, Rosalee Blake testified that at 12:45 a.m., the defendant returned to the subject dwelling with a stick. Willie Blake was home at that time. The defendant again forced his way into the dwelling. Rosalee Blake and Willie Blake had to force the defendant out of the dwelling because the defendant would not leave on his own. On the basis of the defendant’s threats during the first visit, the jury reasonably could have inferred that the defendant had returned at 12:45 a.m. to act on those threats made against Willie Blake.

Moreover, in burglary cases, our Supreme Court has stated that evidence of a forcible entry into a dwelling and flight from apprehension is sufficient evidence for the jury to infer an intent to commit a crime inside the dwelling. See State v. Sinclair, 197 Conn. 574, 577-78, 500 A.2d 539 (1985). Testimony indicated that after the police were called at 11:30 p.m., the defendant left the vicinity of the dwelling in a car driven by Mohammed. The jury reasonably could have concluded that the defendant had fled the scene to avoid apprehension while being aware that a member of the Blake family had called the police. Testimony by Willie Blake and Rosalee Blake also indicate that on two occasions, the defendant had forced his way into the apartment.

Construing the evidence in the light most favorable to sustaining the verdict, we conclude that the jury reasonably could have concluded that the cumulative force of the evidence established that at the time of entering the dwelling, the defendant intended to commit the crime of threatening against Willie Blake.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1999) § 53a-102 (a) provides in relevant part: “A person is guilty of burglary in the second degree when he enters or remains unlawfully in a dwelling at night with intent to commit a crime therein . . . .”

       Although we recognize that in Ms brief, the defendant claims that “the trial court erred in ordering the state to substitute the information to a different charge violating the defendant’s constitutional rights to fair notice of the charge against him,” that specific argument served as the basis for the defendant’s motion to set aside the verdict and for a new trial. Because the court denied that motion, and the defendant raises the same argument on appeal, we treat the claim as alleging the improper denial of the motion.

       Although the December 10, 2001 transcript and the parties’ briefs refer to Willie Blake’s sister as “Rosa Lee Blake,” the charging instrument refers to her as “Rosalee Blake.” We therefore use the latter spelling. For purposes of this opinion, all references to Rosalee Blake and Rosa Lee Blake are synonymous.

       At the time of the incident, John Blake, Jr., was ten years old, Teshawn was twelve years old and Tangie was two years old.

       Willie Blake described the stick as one half of a two-by-four. Rosalee Blake described the stick as being similar in size and shape to a wooden mop handle.

       On the other hand, under the test enunciated in Blockburger, “a defendant may be convicted of two offenses arising out of the same criminal incident if each crime contains an element not found in the other. . . . [By contrast,) [t]he separate offense doctrine implicates double jeopardy concerns.” (Citation omitted; internal quotation marks omitted.) State v. Falcon, supra, 26 Conn. App. 264.

       Specifically, the information in Coleman alleged “that ... on or about the 4th day of March, 1986, prior to 4:00 a.m., in the area of .. . Orange Street, the [defendant] entered or remained unlawfully in a building with the intent to commit a crime therein (to wit: a sexual assault and/or theft), and he was armed with a dangerous instrument (to wit: a sharp cutting instrument), in violation of Section 53a-101 (a) (1) of the Connecticut General Statutes.” (Emphasis added; internal quotation marks omitted.) State v. Coleman, supra, 242 Conn. 533 n.16. The information in Coleman charged the defendant with merely entering or unlawfully remaining in a building with the intent to commit a crime.

       The defendant concedes that he failed to preserve his claim at trial and, therefore, seeks review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). “Unpreserved sufficiency claims are reviewable on appeal because such claims implicate a defendant’s federal constitutional right not to be convicted of a crime upon insufficient proof.” (Internal quotation marks omitted.) State v. Morgan, 70 Conn. App. 255, 281, 797 A.2d 616, cert. denied, 261 Conn. 919, 806 A.2d 1056 (2002). “Our Supreme Court, following the dictate of the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 316, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979), has held that any defendant found guilty on the basis of insufficient evidence has been deprived of a constitutional right, and would therefore necessarily meet the four prongs of Golding. Accordingly, we conclude that no practical reason exists to engage in a Golding analysis of a sufficiency of the evidence claim and, thus, review the challenge as we do any other properly preserved claim.” (Internal quotation marks omitted.) State v. Padua, 73 Conn. App. 386, 392, 808 A.2d 361 (2002), cert. granted on other grounds, 262 Conn. 941, 815 A.2d 672 (2003).

       The December, 2001 substitute information, in addition to charging the defendant with burglary in the second degree, further accused him of having committed the crime of threatening. Specifically, it states “that at the City of Bridgeport, Fairfield County, on or about the 30th day of June, 2000 at or about 11:33 p.m., at 103 Catherine Street, Bridgeport, the said Robert Ward by physical threat, intentionally placed or attempted to place one Willie Blake in fear of imminent serious physical injury, in violation of Section 53a-62 (a) (1) of the Connecticut General Statutes.”

       In Sinclair, the defendant was convicted of burglary in the second degree. The defendant appealed, arguing that there was insufficient evidence for the jury to find that he had intended to commit a crime inside the building. State v. Sinclair, supra, 197 Conn. 576-77. The Supreme Court held that because the defendant had fled the scene after a security guard discovered him in the building, the jury reasonably could have concluded that such action was indicative of criminal purpose. Id., 578.
      Here, the defendant fled the scene prior to the unlawful entry at 12:45 a.m. We have repeatedly stated that intent can be inferred from the defendant’s conduct. See State v. Anderson, 74 Conn. App. 633, 638, 813 A.2d 1039, cert. denied, 263 Conn. 901, 819 A.2d 837 (2003). Accordingly, for purposes of intent, we see no meaningful distinction concerning the fact that the defendant fled prior to the unlawful entry as opposed to after the unlawful entry.


source: Caselaw Access Project

author: PETERS, J.

license: Public Domain

text:
    SUNRISE HEALTHCARE CORPORATION v. VICKI M. AZARIGIAN
    (AC 22959)
    Foti, West and Peters, Js.

      Argued February 18
    officially released May 20, 2003

      Paul H. D. Stoughton, for the appellant (defendant).

      Dominick M. Uva, for the appellee (plaintiff).
   Opinion

PETERS, J.

Under the medicaid act, 42 U.S.C. § 1396r (c), a nursing facility may require an individual who has legal access to a resident’s assets to sign a contract requiring that individual to use those assets to pay for services rendered to the resident.' The act authorizes such contracts as long as the legal representative is not required to guarantee the payments personally. The issue in this case is whether the contract between the plaintiff nursing facility and the defendant legal representative complied with this statutory requirement. The trial court concluded it did and that the defendant had acted in disregard of the contract. We agree and affirm the judgment of the court in favor of the plaintiff.

On May 3,1999, the plaintiff, Sunrise Healthcare Corporation, filed a complaint against the defendant, Vicki M. Azarigian, alleging a single count of breach of contract. The plaintiff alleged that the parties had entered into a contract for the care of the defendant’s mother, Gloria Wood, at the plaintiffs musing home. The plaintiff further alleged that the defendant, as Wood’s power of attorney and “responsible party” under the contract, had failed (1) to take the necessary steps to ensure Wood’s eligibility under the medicaid act and (2) to use Wood’s assets to pay for services rendered by the plaintiff. The plaintiff sought damages for the defendant’s alleged breach of the contract as well as for prejudgment interest pursuant to General Statutes § 37-3a and attorney’s fees.

The defendant denied the allegations of the plaintiff and asserted a special defense. In that special defense, she alleged that the contract, by its terms, did not render her personally liable for any missed payments and that she had upheld her obligations under the contract in good faith.

On March 28, 2002, the trial court rendered judgment for the plaintiff. The court concluded that the contract did not violate § 1396r (c) because it did not require the defendant personally to guarantee payments due to the plaintiff. The court determined, however, that the defendant had acted in breach of the contract when she transferred some of Wood’s assets for estate planning purposes and used assets to pay for a personal companion for Wood. Accordingly, the defendant was ordered to pay the plaintiff $78,779.09, the stipulated amount outstanding under Wood’s account.

The parties have stipulated to the following facts. On February 3, 1994, Wood gave the defendant a power of attorney. The defendant acted in such a capacity at all times relevant to this appeal. During this time, Wood had only two accounts: a Fleet Bank account and a Paine Webber account.

On December 4,1995, the parties executed a contract for Wood’s admission to the plaintiffs nursing home. The plaintiff was a resident there until her death on February 27, 1998.

In January, 1996, the defendant executed several transfers from Wood’s accounts. The defendant also made payments from the Fleet Bank account for a private companion to look after Wood while she was a resident of the plaintiffs nursing home. The payments for the private companion totaled $31,760.

The defendant kept Wood’s account current with the plaintiff through the end of December, 1996. The defendant, however, ceased making payments between January 1, 1997, and Wood’s death on February 27, 1998. The expenses for Wood’s care that accumulated during this time totaled $78,779.09.

In March, 1997, the defendant had applied for Title XIX assistance on Wood’s behalf. On March 1, 1999, the Connecticut department of social services (department) issued a preliminary decision denying the application because of the transfers from Wood’s accounts between November, 1994, and January, 1996. The department noted the previously mentioned transfers and an additional $285,000 that was placed in a revocable trust in August 1995 by Wood’s husband.

The defendant now appeals from the court’s judgment in favor of the plaintiff. She claims that the court’s judgment was improper because it violated § 1396r (c) and misconstrued the terms of the contract. As a matter of federal law, the defendant argues that the contract is unenforceable because it does not meet the requirements of the federal statute. As a matter of contract law, the defendant argues (1) that the contract contemplated and authorized the types of transfers that she executed, and (2) that she is not liable for Wood’s expenses because she was acting as Wood’s agent.

The defendant challenges both the court’s findings of fact and legal conclusions. Our standard of review of such challenges is well established. “To the extent that the trial court has made findings of fact, our review is limited to deciding whether such findings were clearly erroneous. When, however, the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record.” (Interna! quotation marks omitted.) Johnson Electric Co. v. Salce Contracting Associates, Inc., 72 Conn. App. 342, 344, 805 A.2d 735, cert. denied, 262 Conn. 922, 812 A.2d 864 (2002); see also Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).

I

Before we can address the merits of this appeal, we must establish the legal landscape in which the parties entered into the contract at issue. Accordingly, we begin our analysis with an overview of the medicaid program.

“The program, which was established in 1965 as Title XIX of the Social Security Act and is codified at 42 U.S.C. § 1396 et seq. (medicaid act), is a joint federal-state venture providing financial assistance to persons whose income and resources are inadequate to meet the costs of, among other things, medically necessary nursing facility care. . . . The federal government shares the costs of medicaid with those states that elect to participate in the program, and, in return, the states are required to comply with requirements imposed by the medicaid act and by the secretary of the Department of Health and Human Services. . . . Specifically, participating states are required to develop a plan, approved by the secretary of health and human services, containing reasonable standards . . . for determining eligibility for and the extent of medical assistance to be provided.

“Connecticut has elected to participate in the medicaid program and has assigned to the department the task of administering the program. . . . Pursuant to General Statutes §§ 17b-262 and 17b-10, the department has developed Connecticut’s state medicaid plan and has promulgated regulations that govern its administration. . . .

“The medicaid act requires that a state’s medicaid plan make medical assistance available to qualified individuals. . . . The term medical assistance means payment of part or all of the cost of . . . care and services . . . [including] nursing facility services .... Participating states are required to provide coverage to certain groups and are given the option to extend coverage to various other groups. [Those within the required groups] are referred to as the categorically needy ....

“Under the medicaid act, states have an additional option of providing medical assistance to the medically needy — persons who, like the plaintiff, lack the ability to pay for their medical expenses but do not qualify as categorically needy solely because their income exceeds the income eligibility requirements of the applicable categorical assistance program. . . . The medically needy become eligible for medicaid, if the state elects to cover them, by incurring medical expenses in an amount sufficient to reduce their incomes below the income eligibility level set by the state in its medicaid plan. . . . Only when they spend down the amount by which their income exceeds that level, are [medically needy persons] in roughly the same position as [categorically needy] persons . . . [because then] any further expenditures for medical expenses . . . would have to come from funds required for basic necessities.” (Citations omitted; internal quotation marks omitted.) Ahern v. Thomas, 248 Conn. 708, 713-15, 733 A.2d 756 (1999).

The medicaid act also establishes a framework for the admission practices of nursing facilities. The act sets forth a long list of requirements for nursing facilities and rights that cannot be waived by residents. See 42 U.S.C. § 1396r. The Connecticut Patients’ Bill of Rights mirrors this framework. See General Statutes § 19a-550. One such requirement prohibits a nursing facility from requiring “a third party guarantee of payment to the facility as a condition of admission (or expedited admission) to, or continued stay in, the fácility . . . .” 42 U.S.C. § 1396r (c) (5) (A) (ii); see also General Statutes § 19a-550 (b) (26). This prohibition of third party guarantees does not, however, prevent “an individual, who has legal access to a resident’s income or resources available to pay for care in the facility, to sign a contract (without incurring personal financial liability) to provide payment from the resident’s income or resources for such care.” 42 U.S.C. § 1396r (c) (5) (B) (ii).

II

Against this backdrop, we now address the claimed misconduct of the defendant. We note that the defendant does not contest that a nursing facility and a prospective resident’s legal representative can enter into a contract requiring that representative to use the resident’s assets for the payment of services of the nursing facility. 42 U.S.C. § 1396r (c) (5) (B) (ii). The defendant claims, rather, that the terms of this specific contract violate 42 U.S.C. § 1396r (c) (5) (A) (ii) and, in the alternative, that she acted in accordance with the terms of the contract. We disagree with both claims.

A

The defendant first argues that the contract does not meet the requirements imposed by the medicaid act, namely, the prohibition of personal liability under § 1396r (c) (5) (A) (ii). The plaintiff maintains, to the contrary, that the court properly construed the contract and properly concluded that the defendant was liable for Wood’s outstanding account. Our review of the court’s interpretation of the contract is a question of law for which our review is plenary. Tallmadge Bros., Inc. v. Iroquois Gas Transmission System, L.P., 252 Conn. 479, 495, 746 A.2d 1277 (2000); Maloney v. PCRE, LLC, 68 Conn. App. 727, 734, 793 A.2d 1118 (2002).

As we stated previously, the act permits contracts concerning the payment of nursing care services by a legal representative in control of a resident’s assets or income. 42 U.S.C. § 1396r (c) (5) (B) (ii). Such a contract violates the medicaid act, however, when that legal representative must personally guarantee such payments. 42 U.S.C. § 1396r (c) (5) (A) (ii).

The contract in the present case unambiguously complies with these statutory requirements. First, it expressly prohibits personal liability on the part of the defendant for payments made to the plaintiff from Wood’s account. Section IV, paragraph two provides that the “responsible party does not personally guarantee or serve as surety for payment as described in Section II, Paragraphs (1) through (5). The responsible party agrees that his or her liability for the failure to perform any of the other obligations set forth in this agreement shall be determined in accordance with these Paragraphs.”

Second, the contract obligates the defendant to use Wood’s assets for the payment of services. Section II, subparagraph 8 (8) provides: “If the responsible party has control of or access to the resident’s income and/ or assets, the responsible party agrees that these funds shall be used for the resident’s welfare, including but not limited to making prompt payment in accordance . . . with the terms of this agreement.” This is not, as the defendant argues, a contractual agreement imposing personal liability. The defendant is liable only for her handling of Wood’s assets and only to the extent that Wood’s assets would cover outstanding payments owed to the plaintiff. Because the plaintiff seeks to recover moneys that belonged at all times to Wood rather than to the defendant, the defendant’s liability depends on a showing of her misuse of Wood’s assets in violation of the contract.

The defendant’s potential liability under the contract for an unauthorized use of Wood’s assets is analogous to a trustee’s liability for an unauthorized use of trust property. Just as the defendant is bound by the terms of the contract, so a trustee must act in accordance with the terms of the trust instrument. New Haven Savings Bank v. LaPlace, 66 Conn. App. 1, 14, 783 A.2d 1174, cert. denied, 258 Conn. 942, 786 A.2d 426 (2001), citing Stale v. Thresher, 77 Conn. 70, 83, 58 A. 460 (1904); 2 Restatement (Second), Trusts § 164, p. 341 (1959). A trustee cannot deviate from the terms of the trust merely because the beneficiary would derive greater benefit from a failure to abide by the directive of the trust instrument. 2 Restatement (Second), Trusts, supra, § 167, comment (b), p. 354. Similarly, the defendant in the present case cannot avoid liability for an unauthorized use of Wood’s assets simply because that use would benefit Wood in some way.

To support the argument that her use of Wood’s assets was proper under the contract, as a matter of medicaid law, the defendant relies on Manor of Lake City, Inc. v. Hinners, 548 N.W.2d 573 (Iowa 1996). This is the only case that we, or the parties, have found that addresses contracts for nursing care under § 1396r (c). In that case, the Supreme Court of Iowa considered whether the defendant, the son and “responsible party” of the resident, could be held personally liable for outstanding payments under a contract for admission to the plaintiff nursing home. The juiy found him so liable and the defendant appealed, arguing that the contract violated the medicaid act. Id., 575. Although the court acknowledged the general propriety of this sort of agreement, it concluded that this specific contract was invalid because it expressly required the “responsible party” to be personally Hable for payments rendered. Id., 576.

Manor of Lake City, Inc., is distinguishable from the present case. The contract in that case clearly violated § 1396r (c). It provided that “[t]he Responsible Party agrees to be bound in his or her individual capacity by all of the terms and conditions of the Agreement pertaining to the Resident.” (Emphasis added.) Id., 575 n.1. The Supreme Court of Iowa noted that, but for the personal Habihty clause, the contract in that case would have conformed to the law. Id., 576. In the present case, by contrast, the contract states just the opposite. It specifically eschews personal liability on the part of the “responsible party” regarding payments to the plaintiff. Because of this significant difference in contract language, we conclude that Manor of Lake City, Inc., does not support the defendant’s position.

We hold, therefore, that the wording of the contract in this case compfies with § 1396r (c). Accordingly, if the defendant acted in breach of the contract by not using Wood’s assets as the contract required, then she is responsible for reimbursing the plaintiff.

B

The defendant also argues that the trial court improperly concluded that, as a contract matter, she had failed to meet her obHgations to the plaintiff. She maintains that the transfers of assets and the payments for the personal companion were for Wood’s welfare and, therefore, were required by the contract. We disagree.

The court concluded that the “defendant . . . breached her contract with the plaintiff by both making the transfers and paying the $31,760 for a ‘companion.’ ” The court’s conclusion was based on its interpretation of the contract, specifically subparagraph 8 (8). In the absence of a claim of ambiguity, our review of the court’s conclusion is plenary. Tallmadge Bros., Inc. v. Iroquois Gas Transmission System, L.P., supra, 252 Conn. 495; Maloney v. PCRE, LLC, supra, 68 Conn. App. 734.

Subparagraph 8 (8) provides that “[i]f the responsible party has control of or access to the resident’s income and/or assets, the responsible party agrees that these funds shall be used for the resident’s welfare, including but not limited to making prompt payment in accordance . . . with the terms of this agreement.” (Emphasis added.) Accordingly, the defendant was obligated to make “prompt payments” to the plaintiff. Other than payment to the plaintiff, the defendant was permitted to use the assets only for Wood’s welfare. Although the contract does not define welfare, in paragraph eight it requires the defendant, as the “responsible party,” to obtain and maintain Wood’s eligibility under medicaid. To ascertain the scope of the term welfare, it is necessary, therefore, to consider the defendant’s contractual obligations within the context of the medicaid act.

As stated previously, the medicaid act allows states to provide medical assistance to those who are not “categorically needy” if they would lack the income for basic necessities if they were left to pay their own medical expenses. Ahern v. Thomas, supra, 248 Conn. 715. Accordingly, one of the purposes of the medicaid act is to free up income so that a needy individual can afford basic necessities other than medical expenses. Id. Thus, the term welfare under the contract refers to those basic necessities, such as nursing care, that would allow Wood to live day to day. Any use of Wood’s assets that goes beyond fulfilling her basic needs is, therefore, in violation of the contract.

The defendant maintained at oral argument before this court that the transfers were for Wood’s welfare because Wood had established a pattern of similar transfers prior to her residency with the plaintiff. Despite this pattern and the pleasure that Wood might well derive from making the gifts, such transfers do not constitute a basic necessity within the context of the medicaid act. The defendant also argues in her brief that the personal companion directly benefited Wood’s welfare. Although Wood did directly benefit from the personal companion, this was in addition to the care provided by the plaintiff. There is no evidence on the record suggesting that the personal companion was a necessity for Wood’s well-being.

We agree with the court’s conclusion that the defendant’s disbursement of assets did not benefit Wood’s welfare as contemplated by the contract and the medicaid act. Accordingly, the court properly concluded that these disbursements were not authorized by the contract, but rather were made in breach thereof.

C

The defendant finally argues that she cannot be held hable under the contract because she was acting as Wood’s agent. She relies on the fact that the contract indicated that the defendant had Wood’s power of attorney. As such, the defendant maintains that she cannot be liable for the missed payments. The plaintiff argues, however, that the defendant expressly assumed responsibility under the contract when she signed the contract as the “responsible party.” We agree with the plaintiff.

The trial court found, as a matter of fact, that the defendant had executed the contract both as Wood’s power of attorney and as the “responsible party” under the contract. It recognized that the execution of a power of attorney creates a principal-agent relationship. Long v. Schull, 184 Conn. 252, 256, 439 A.2d 975 (1981); Brown v. Villano, 49 Conn. App. 365, 368, 716 A.2d 111, cert. denied, 247 Conn. 904, 720 A.2d 513 (1998). It concluded, however, that the defendant was nonetheless liable under the contract in her capacity as the “responsible party.”

Because agency is a question of fact; Hallas v. Boehmke & Dobosz, Inc., 239 Conn. 658, 674, 686 A.2d 491 (1997); we can reverse the court’s finding only if it is clearly erroneous. Federal Deposit Ins. Corp. v. Mutual Communications Associates, Inc., 66 Conn. App. 397, 401-402, 784 A.2d 970 (2001), appeal dismissed, 262 Conn. 358, 814 A.2d 377 (2003). Our review of the record has not uncovered any factual findings with respect to agency that warrant reversal. The defendant clearly signed the contract as the “responsible party.” In so doing, the defendant assumed the obligations of the “responsible party” as set forth under the contract. These obligations extend well beyond the defendant’s role as Wood’s power of attorney, which she exercised in signing the contract to begin with. We conclude, therefore, that the trial court reasonably could have determined that the defendant, in carrying out her obligations under the contract, was not acting exclusively as Wood’s power of attorney.

In summary, the defendant has not proffered any argument that supports the reversal of the trial court’s judgment for the plaintiff. First, we conclude that the contract complies with the requirements of § 1396r (c). It does not require the defendant to guarantee personally payments to the plaintiff. Second, we agree with the trial court’s conclusion that the defendant acted in violation of the contract by transferring assets for estate planning purposes and using Wood’s assets to pay for a personal companion. Finally, the record supports the court’s finding that, under the contract, the defendant’s disbursements were not made pursuant to her role as Wood’s agent.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff is the owner and operator of the nursing facility known as Mediplex of Newington.

       The transfers included five gifts of $5880 each, one gift of $15,456.25, and one gift of $4835. These transfers totaled $49,691.25.

       Wood’s husband died on January 7, 1996. Gloria Wood was not named as a beneficiary of the trust. The parties agree that, if the revocable trust had not been attributed to Wood, she would have been eligible for Title XIX assistance.

       General Statutes § 19a-550 (b) provides in relevant part: “There is established a patients’ bill of rights for any person admitted as a patient to any nursing home facility or chronic disease hospital. The patients’ bill of rights shall be implemented in accordance with the provisions of Sections 1919 (c) (2), 1919 (c) (2) (D) and 1919 (c) (2) (E) of the Social Security Act. Said patients’ bill of rights shall provide that each such patient . . . shall not be required to give a third party guarantee of payment to the facility as a condition of admission to, or continued stay in, the facility . . . .”


text:
    VINCENT NASTRO v. ARTHUR M. D’ONOFRIO, JR.
    (AC 22941)
    Dranginis, Bishop and Peters, Js.
    Argued March 27
    officially released May 20, 2003

      Gary J. Greene, for the appellant (defendant).

      Edwin L. Doemberger, for the appellee (plaintiff).
   Opinion

PETERS, J.

The full faith and credit clause of the United States constitution “requires a state court to accord to the judgment of another state the same credit, validity and effect as the state that rendered the judgment would give it.” Packer Plastics, Inc. v. Laundon, 214 Conn. 52, 56, 570 A.2d 687 (1990). In accordance with this federal mandate, our legislature enacted the Uniform Enforcement of Foreign Judgments Act, General Statutes § 52-604 et seq. (foreign judgments act), which permits an out-of-state judgment that has been filed here to be enforced in the same manner as an instate judgment. In that act, General Statutes § 52-605 (b) provides that enforcement of the out-of-state judgment is subject to the same defenses that a judgment debtor could raise against an in-state judgment. This case requires us to interpret this section so that it does not run afoul of the full faith and credit clause, which limits the authority of Connecticut courts to delve into the merits of an out-of-state judgment. The judgment of the trial court in favor of the out-of-state creditor, although based on a different statute, reached a result that comports with our interpretation of § 52-605 (b). We therefore affirm the judgment.

The procedural history of this case begins in California in the Superior Court in and for the County of San Joaquin. In that court, the plaintiff, Vincent Nastro, filed a complaint seeking damages to compensate him for alleged misconduct by the defendant, Arthur M. D’Onofrio, Jr., in the management of a corporation jointly owned by both parties. In the course of those proceedings, the defendant was ordered to comply with certain discovery orders. On January 22, 1998, after he had failed to do so, the court issued discovery sanctions that directed the defendant to pay monetary sanctions of $16,923.87. The defendant was represented by counsel throughout. The judgment was on the merits rather than by default or confession of judgment.

As California law permits, the defendant immediately appealed the sanctions order to the California Court of Appeals. The sanctions order was not stayed during the pendency of the appeal. On November 16, 1999, the California appellate court dismissed the defendant’s appeal because of his failure to file an opening brief.

A Connecticut court clerk’s certificate attests to the filing of the California judgment in this state on April 19, 2000. As a result, the California order for sanctions in the amount of $16,923.87 became a Connecticut judgment. Thereafter, on May 16, 2000, the plaintiff filed and recorded two certificates of judgment hen against Connecticut property owned by the defendant.

On November 5, 2001, the defendant filed a motion in the Superior Court in this state in which he asked the court to vacate the California judgment because of ambiguity in the designation of the payee. That judgment ordered the defendant to pay the sanctions award “to counsel for Plaintiff.” The defendant argued that he was at risk of having to pay the judgment twice, once to the plaintiff himself and once to the plaintiffs counsel. On this ground, the defendant also moved for a stay of collection proceedings and for discharge of the judgment liens.

On December 10, 2001, the trial court held a hearing for the presentation of argument by counsel on the merits of the defendant’s motions. To resolve the ambiguity that the defendant had raised, the court ordered the plaintiff to provide a written submission to the court about the person to whom the defendant was required to pay the sanctions award. In response, the plaintiff filed a California abstract of judgment, dated March 6, 2000, which certified that Vincent Nastro was the judgment creditor and Arthur M. D’Onofrio was the judgment debtor for the judgment entered on January 22, 1998.

On March 25, 2002, the trial court denied the motions filed by the defendant. Its memorandum of decision stated: “After reviewing the parties’ submissions and considering their oral arguments, the motion to stay collection proceedings and discharge judgment liens is denied. The court notes that, in his memorandum, dated Jan. 9,2002, the defendant, Arthur D’Onofrio, Jr., stated, at page two, that he ‘does not now ask the Court to reopen the judgment . . . .’ Accordingly, the motion to vacate judgment is deemed withdrawn.” The court, thereafter, rendered its judgment in favor of the plaintiff.

The defendant has appealed to challenge the validity of the judgment against him. He does not challenge the factual record that the plaintiff presented to the trial court. Nonetheless, in the defendant’s view, the trial court had broad discretion to order a stay in this case because it had broad discretion to grant a stay of a Connecticut judgment. Griffin Hospital v. Commission on Hospitals & Health Care, 196 Conn. 451, 455, 493 A.2d 229 (1985); Sauter v. Sauter, 4 Conn. App. 581, 584-85, 495 A.2d 1116 (1985). Implicitly, the defendant’s argument relies on § 52-605 (b), which, on its face, permits an out-of-state judgment debtor to defend against an out-of-state judgment for the same reasons that an in-state judgment debtor can defend against an instate judgment.

In response, the plaintiff maintains that uncontested facts of record demonstrate that a stay is not warranted because the California judgment is not ambiguous. The plaintiff does not challenge the authority of the trial court to adjudicate this issue on its merits. Indeed, he does not refer to the foreign judgments act in any way.

Nonetheless, we are persuaded that the foreign judgments act is central to the judgment in this case. Without that act, the California judgment would not have become a judgment in this state. Without that act, the plaintiff would have had to undertake further proceedings before placing liens on the defendant’s property. We must decide, therefore, whether the judgment rendered by the trial court comports with the requirements of the act. Because these requirements relate to “foreign judgments,” we must take into account not only the wording of the act but also the commands of federal constitutional law. Federal constitutional law requires the courts of this state to give full faith and credit to the judgment of a foreign state.

The underlying issue in this appeal, therefore, is the proper inteipretation of § 52-605 (b) of the foreign judgments act, which subjects a foreign judgment to the same procedures, defenses and proceedings for reopening, vacating or staying a judgment as would apply to a judgment of this state. Statutory interpretation is a matter of law over which this court’s review is plenary. Spears v. Garcia, 263 Conn. 22, 27, 818 A.2d 37 (2003); Millward Brown, Inc. v. Commissioner of Revenue Services, 73 Conn. App. 757, 761, 811 A.2d 717 (2002).

I

We begin with an examination of the constitution of the United States, article four, § 1, which requires that “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State . . . .” Interpretation of the full faith and credit clause is a question of federal law. State courts are bound by the decisions of the United States Supreme Court that prescribe the criteria for applying the clause. Thomas v. Washington Gas Light Co., 448 U.S. 261, 271 n.15, 100 S. Ct. 2647, 65 L. Ed. 2d 757 (1980).

The Supreme Court has spoken at length about the origins and the purpose of the full faith and credit clause. “The full faith and credit clause is one of the provisions incorporated into the Constitution by its framers for the purpose of transforming an aggregation of independent, sovereign States into a nation.” Sherrer v. Sherrer, 334 U.S. 343, 355, 68 S. Ct. 1087, 92 L. Ed. 1429 (1948); see also Estin v. Estin, 334 U.S. 541, 546, 68 S. Ct. 1213, 92 L. Ed. 1561 (1948). Its animating purpose “was to alter the status of the several states as independent foreign sovereignties, each free to ignore obligations created under the laws or by the judicial proceedings of the others, and to make them integral parts of a single nation throughout which a remedy upon a just obligation might be demanded as of right, irrespective of the state of its origin.” (Internal quotation marks omitted.) Baker v. General Motors Corp., 522 U.S. 222, 232, 118 S. Ct. 657, 139 L. Ed. 2d 580 (1998).

Substantively, the full faith and credit clause imposes significant limitations on the authority of a court in this state to decline to enforce an out-of-state money judgment. That judgment may be set aside if it is jurisdictionally flawed because the foreign court lacked subject matter or personal jurisdiction over the defendant or if that jurisdiction resulted from an extrinsic fraud. Underwriters National Assurance Co. v. North Carolina Life & Accident & Health Ins. Guaranty Assn., 455 U.S. 691, 705, 102 S. Ct. 1357, 71 L. Ed. 2d 558 (1982). Even as to questions of jurisdiction, however, the principles of res judicata bar further inquiry if “those questions have been fully and fairly litigated and finally decided in the court which rendered the original judgment.” (Internal quotation marks omitted.) Id., 706. The out-of-state judgment may not be impeached because of mistake or fraud; Wisconsin v. Pelican Ins. Co., 127 U.S. 265, 291-92, 8 S. Ct. 1370, 32 L. Ed. 239 (1888); Smiths. Smith, 174 Conn. 434, 437, 389 A.2d 756 (1978); or for reasons of public policy. Baker v. General Motors Corp., supra, 522 U.S. 233; Fauntleroy v. Lum, 210 U.S. 230, 237, 28 S. Ct. 641, 52 L. Ed. 1039 (1908).

By contrast, the full faith and credit clause does not impose procedural constraints on the time and manner in which an out-of-state judgment is enforceable in the courts of this state. “Enforcement measures do not travel with the sister state judgment as preclusive effects do; such measures remain subject to the evenhanded control of forum law.” Baker v. General Motors Corp., supra, 522 U.S. 235; see also Restatement (Second), Conflict of Laws § 99, pp. 303-304 (1971).

II

We turn now to application of the law of full faith and credit to our statute specifying the time and manner of in-state enforcement of out-of-state judgments. General Statutes § 52-605 (b), which is a part of the foreign judgments act, provides in relevant part that, once properly registered, a “foreign judgment shall be treated in the same manner as a judgment of a court of this state. A judgment so filed has the same effect and is subject to the same procedures, defenses and proceedings for reopening, vacating or staying as a judgment of a court of this state and may be enforced or satisfied in like manner.” (Emphasis added.) Under the law of this state, judgments may be opened or stayed for a variety of reasons, including fraud, mistake, duress or as “otherwise provided by law . . . .” General Statutes § 52-212a; Practice Book § 17-4 (a); Kim v. Magnotta, 249 Conn. 94, 104, 733 A.2d 809 (1999). Indeed, for a four month period immediately following the rendition of a judgment, “[o]ur courts have the inherent authority to open, correct or modify judgments . . . .” Ziruk v. Bedard, 45 Conn. App. 137, 138, 695 A.2d 4, cert. denied, 243 Conn. 905, 701 A.2d 339 (1997).

Juxtaposition of these two statutes demonstrates the need to find an accommodation between them. Read literally, § 52-605 (b) subjects an out-of-state judgment to substantive defenses that are precluded by the full faith and credit clause. We must search for an interpretation of this statute that avoids placing it in such constitutional jeopardy. State v. Metz, 230 Conn. 400, 422-23, 645 A.2d 965 (1994); State v. Coscuna, 59 Conn. App. 434, 439-40, 757 A.2d 659 (2000).

We follow the method of statutory interpretation recently articulated in State v. Courchesne, 262 Conn. 537, 816 A.2d 562 (2003). “The process of statutory interpretation involves a reasoned search for the intention of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. In seeking to determine that meaning, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter. . . . Thus, this process requires us to consider all relevant sources of the meaning of the language at issue, without having to cross any threshold or thresholds of ambiguity. Thus, we do not follow the plain meaning rule.” (Citations omitted; internal quotation marks omitted.) Id., 577.

The foreign judgments act provides its own statement of the purpose that the act was intended to serve. The prefatory note to the act states that it was intended to provide “the enacting state with a speedy and economical method of doing that which it is required to do by the Constitution of the United States. It also relieves creditors and debtors of the additional cost and harassment of further litigation which would otherwise be incident to the enforcement of a foreign judgment.” Uniform Enforcement of Foreign Judgments Act, 13 U.L.A. 157 (2002).

Even more to the point, numerous state courts have held that the foreign judgments act was intended to implement the full faith and credit clause and must be interpreted accordingly. The purpose of the foreign judgments act is to “facilitate interstate enforcements of judgments by providing a summary procedure by which a judgment creditor may enforce the judgment in an expeditious manner in any jurisdiction in which the judgment debtor is found.” Matson v. Matson, 333 N.W.2d 862, 867 (Minn. 1983). Except for defenses such as lack of personal or subject matter jurisdiction in the out-of-state court or fraud in the procurement of the out-of-state judgment, the foreign judgments act therefore “does not allow the merits of a foreign judgment to be reopened or reexamined by the state where it is

recorded.” (Internal quotation marks omitted.) Carr v. Bett, 291 Mont. 326, 339, 970 P.2d 1017 (1998); see also Marworth, Inc. v. McGuire, 810 P.2d 653, 656-57 (Colo. 1991); Matson v. Matson, supra, 867; Rosenstein v. Steele, 103 Nev. 571, 573, 747 P.2d 230 (1987); Conglis v. Radcliffe, 119 N.M. 287, 289, 889 P.2d 1209 (1995); Everson v. Everson, 494 Pa. 348, 361-62, 431 A.2d 889 (1981); Wooster v. Wooster, 399 N.W.2d 330, 333-34 (S.D. 1987); Data Management Systems, Inc. v. EDP Corp., 709 P.2d 377, 381 (Utah 1985); Sandstrom v. Sandstrom, 880 P.2d 103,106 (Wyo. 1994). These out-of-state precedents are particularly persuasive because the foreign judgments acts they interpret are textually identical with our own. See General Statutes § 52-608.

It is our responsibility, therefore, to find a way to reconcile the sweeping language of § 52-605 (b) with the purpose that the uniform act was intended to serve. This is an issue of first impression in this state. We are persuaded that we should follow the decisions of courts in other states that have considered this problem. These courts have added a limiting gloss to the word “defenses” by holding that the foreign judgments act permits a judgment debtor to raise only those defenses that are constitutionally permissible. Constitutionally permissible defenses are those that “destroy the full faith and credit obligation owed to a foreign judgment— viz., the absence of jurisdiction or the lack of due process . . . .” Everson v. Everson, supra, 494 Pa. 361-62; see also Conglis v. Radcliffe, supra, 119 N.M. 289. “To interpret the language of our statute otherwise would not afford any finality to foreign judgments and would be contrary to the constitutional mandate.” Data Management Systems, Inc. v. EDP Corp., supra, 709 P.2d 381.

Following these precedents, we conclude that the phrase in § 52-605 (b) that provides that a foreign judgment, once registered, “has the same effect and is subject to the same procedures, defenses and proceedings for reopening, vacating or staying as a judgment of a court of this state” is not an open sesame for Connecticut courts to reconsider the merits of an out-of-state judgment. To comply with federal constitutional law, the only defenses that a Connecticut court should consider when out-of-state judgment debtors claim that an out-of-state judgment is unenforceable are those that implicate the personal or subject matter jurisdiction of the out-of-state court. Accordingly, the provisions of § 52-212a, which prescribe rules for the opening of Connecticut judgments, have only limited effect on out-of-state judgments.

The trial court’s resolution of the defendant’s challenge to the validity of the California sanctions judgment in this case is entirely consonant with the foreign judgments act as we have interpreted it. The defendant did not establish any basis for a stay of the California judgment in favor of the plaintiff.

The judgment is affirmed.

In this opinion the other judges concurred.

       See California Code of Civil Procedure, title 13, § 903.1 (11).

       At oral argument, counsel for the plaintiff informed us that, in June, 2001, the California Superior Court rendered a final judgment on the merits of the underlying case in favor of the plaintiff. The judgment did not address the issue of sanctions for failure to comply with discovery orders. The judgment on the merits is now on appeal to the California Court of Appeals but apparently has not yet been decided.

       The defendant also contests the trial court’s finding that he had withdrawn his motion to vacate or to open the California judgment. We can find nothing in the record to contradict the court’s factual finding. This argument is, therefore, unpersuasive.

       General Statutes § 52-212a provides in relevant part: “Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, a civil judgment or decree rendered in the Superior Court may not be opened or set aside unless a motion to open or set aside is filed within four months following the date on which it was rendered or passed. . . .”

       Practice Book § 17-4 (a) provides: “Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, any civil judgment or decree rendered in the superior court may not be opened or set aside unless a motion to open or set aside is filed within four months succeeding the date on which notice was sent. The parties may waive the provisions of this subsection or otherwise submit to the jurisdiction of the court.”

       General Statutes § 52-608 provides: '‘Uniform interpretation. Sections 52-604 to 52-609, inclusive, shall be so construed as to effectuate their general purpose to make uniform the laws of those states which enact them.”

       It may be that substantively appropriate jurisdictional issues must be raised in this state within four months of the time that an out-of-state judgment is filed here. We need not decide that issue today.


author: FLYNN, J.

text:
    COMMISSIONER OF BANKING v. GLORIA HAYNES
    (AC 23399)
    Foti, Dranginis and Flynn, Js.
    Argued March 24
    officially released May 20, 2003

      Earl I. Williams, for the appellant (defendant).

      Lorrie Lewis Adeyemi, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (plaintiff).
   Opinion

FLYNN, J.

The defendant, Gloria Haynes (landlord), appeals from the judgment of the trial court enforcing the administrative order of the plaintiff banking commissioner (commissioner) ordering that she pay to her former tenant, Sanjay Gulati (tenant), $3600 for the return of a security deposit and assessed penalties. The landlord claims that the court improperly (1) ordered her to comply with the commissioner’s order, (2) concluded that the $900 paid to the rental agent was part of the tenant’s security deposit and (3) relied on parol evidence to vary the lease terms. We conclude that, although the court was without authority to conduct a de novo hearing because the landlord did not appeal from the administrative order pursuant to the Uniform Administrative Procedure Act (UAPA), codified in chapter 54 of the General Statutes at § 4-166 et seq., it nevertheless properly ordered the enforcement of the commissioner’s order and acted within its discretion in assessing an additional $900 penalty for the landlord’s failure to comply with said order.

The commissioner found the following facts. The tenant leased residential premises from the landlord for the period beginning April 17, 1998, through April 17, 1999, and paid a security deposit in the amount of $1800. The tenant terminated his tenancy on April 17, 1999, and gave written notification of his forwarding address to the landlord by letter, dated May 26, 1999. The landlord failed to forward to the tenant, after deducting for any damages properly itemized, the balance of his security deposit plus accrued interest within the time frames designated by General Statutes § 47a-21 (d) (2) and (4).

On October 22,1999, the commissioner issued, by registered mail, a “Notice of Intent to Issue Order to Cease and Desist and Notice of Right to Hearing,” that alleged that the landlord had violated § 47a-21 (d) and (i). The notice stated that the landlord had a right to a hearing, and, that if such a hearing were requested in writing, it would be held at 10 a.m. on December 16, 1999, at the department of banking, in accordance with the provisions of chapter 54 of the General Statutes. The notice also directed the landlord that the legal authority and jurisdiction under which the hearing would occur could be found in General Statutes §§ 47a-21 (j) and 36a-52 (a). The notice, however, was returned to the department of banking, on November 22,1999, marked “return to sender — unclaimed.” The landlord did not request a hearing.

After finding those facts, the commissioner made the following conclusions of law. The landlord met the definition of “landlord” pursuant to § 47a-21 (a) (6). The tenant was a “tenant” as defined in § 47a-21 (a) (12). A “security deposit,” as defined in § 47a-21 (a) (10), is “any advance rental payment other than an advance payment for the first month’s rent and a deposit for a key or any special equipment.” The commissioner then concluded that the tenant had paid an $1800 security deposit to the landlord, which she failed to return, with interest, minus any properly itemized deductions, to the tenant in violation of § 47a-21 (d) and (i). The commissioner also concluded that the applicable rate of interest, pursuant to § 47a-21 (i) (2), was 2.6 percent through 1998 and 2.3 percent through 1999.

The commissioner ordered, pursuant to §§ 47a-21 (j) (2) and 36a-52, that the landlord cease and desist from violating § 47a-21 (d) and (i), and comply with such provisions. Additionally, the commissioner ordered that the landlord pay to the tenant, within thirty days: (1) “Twice the value of the security deposit received to wit Three Thousand Six Hundred Dollars ($3,600) [and (2)] Interest accrued on the security deposit from April 17, 1998 to November 24, 1999 in the amount of Seventy Dollars and Sixty-nine Cents ($70.69).” The commissioner sent this order, certified mail, return receipt requested on November 30, 1999, and the landlord signed for it on December 23, 1999.

The landlord did not request a rehearing, move to open the decision, ask for reconsideration or file an appeal of the order in the Superior Court pursuant to the UAPA.

When the landlord did not make payment as ordered, the commissioner filed an action seeking to enforce the order pursuant to General Statutes § 36a-50 (b) (1) and seeking the levy of an additional penalty, pursuant to § 36a-50 (b) (2), for the landlord’s failure to adhere to the order. The landlord filed an answer denying several of the commissioner’s findings and by way of special defense claimed that she had damages related to the tenancy at issue. Thereafter, the court, in essence, conducted a de novo trial, taking testimony and documentary evidence, before granting the commissioner’s request to have the order enforced with the assessment of an additional penalty. This appeal followed.

The landlord claims that the court acted improperly by ordering her to comply with the commissioner’s order, by concluding that the $900 paid to the rental agent was part of the tenant’s security deposit and by relying on parol evidence to vary the terms of the tenant’s lease. Because the landlord failed to file a timely appeal from the commissioner’s decision, the trial court did not have the authority to conduct a de novo trial or to review the findings and conclusions of the commissioner. See Glastonbury Volunteer Ambulance Assn., Inc. v. Freedom of Information Commission, 227 Conn. 848, 851-52, 633 A.2d 305 (1993) (failure of party to file administrative appeal under UAPA within forty-five days required by General Statutes § 4-183 (c) deprives trial court of subject matter jurisdiction over appeal). Further, because the landlord failed to file an appeal from the commissioner’s order, her defenses at the trial on the commissioner’s complaint seeking to enforce that order were circumscribed. The trial court had jurisdiction only to assess the merits of the commissioner’s complaint requesting enforcement of his order and the levy of additional statutory penalties and did not have jurisdiction to consider the merits of the underlying order. Nevertheless, we conclude that the trial court’s judgment enforcing the order of the commissioner, as well as its levy of an additional penalty, were well within the court’s statutory authority and were legally and logically correct.

On appeal, the landlord continues to attack the findings and conclusions of the commissioner despite her failure to appeal from his order. We decline to review the landlord’s claims as far as they relate to those findings and conclusions. Upon the landlord’s failure to file a timely appeal, the commissioner’s findings and conclusions became final, binding and not subject to review. See General Statutes § 4-183.

We address the landlord’s claim that the court improperly rendered judgment ordering her to comply with the commissioner’s order. In so doing, “[w]e are guided in our analysis by the standard of appellate review that governs questions of law. We have long held that where the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts . . . .” (Internal quotation marks omitted.) Keeney v. Old Saybrook, 237 Conn. 135, 143, 676 A.2d 795 (1996).

Our statutory scheme regarding the commissioner’s authority to issue orders relating to residential security deposits can be briefly summarized as follows. General Statutes § 36a-52 (a) gives the commissioner the authority to hold a properly noticed hearing and to issue a cease and desist order against anyone violating a statute that falls within the commissioner’s jurisdiction. General Statutes § 47a-21 (j) grants the commissioner, inter alia, the authority to receive and to investigate complaints regarding violations of § 47a-21 (d).

Section 47a-21 (d) mandates that, unless the landlord properly documents and itemizes damages, the landlord return to the tenant the entire security deposit paid, plus interest, within thirty days of the termination of the tenancy and notification of the tenant’s forwarding address. Section 47a-21 (d) also provides that any landlord found to be in violation of this subsection shall be liable for twice the amount of the security deposit paid by the tenant.

After issuing a properly noticed order to a landlord, if the commissioner becomes aware that a landlord has violated his order, the commissioner may commence an action to enforce compliance with such order. General Statutes § 36a-50 (b) (1). The statute additionally provides that the commissioner may seek an order of the court imposing a penalty of up to $7500 for each violation of his order. General Statutes § 36a-50 (b) (2).

In the present case, the tenant filed a complaint with the commissioner when the landlord failed to return his security deposit. The commissioner sent notice to the landlord, pursuant to § 36a-52 (a). Although the notice was returned to the commissioner, pursuant to § 36a-52 (a) it was deemed received by the landlord “on the earlier of the date of actual receipt, or seven days after mailing . . . .” After issuing his findings of fact, conclusions of law and order, the commissioner, in accordance with § 36a-52 (a), sent notice to the landlord by certified mail, for which she signed the return receipt. Section 36a-52 (a) clearly states that the commissioner’s order must comply with chapter 54 of the General Statutes, the UAPA, and the parties do not argue otherwise, nor do they argue that the order was not in compliance with the UAPA.

The landlord does not challenge the procedures employed by the commissioner, nor does she challenge his authority to issue orders relating to residential security deposits. She did not appeal from the commissioner’s order pursuant to the UAPA, nor did she move to open the decision or request a rehearing from the commissioner. Rather, she simply failed to comply with the commissioner’s order, and, after the commissioner sought enforcement of that order, improperly sought to retry his factual findings and legal conclusions. Although the court improperly conducted what amounted to a de novo trial on the merits of the order, it properly rendered judgment, in accordance with § 36a-50 (b) (1), enforcing the commissioner’s order. The court, additionally, in accordance with § 36a-50 (b) (2), properly assessed a $900 penalty against the landlord for failing to comply with the commissioner’s order.

Reviewing the statutory scheme together with the procedures employed in this case, we conclude that the court properly rendered judgment enforcing the commissioner’s order and assessing an additional penalty against the landlord for failing to comply therewith.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 47a-21 (d) provides in relevant part: “(2) Upon termination of a tenancy, any tenant may notify Ms landlord in writing of such tenant’s forwarding address. Within thirty days after termination of a tenancy, each landlord . . . shall deliver to the tenant or former tenant at such forwarding address either (A) the full amount of the security deposit paid by such tenant plus accrued interest as provided in subsection (i) of tMs section, or (B) the balance of the security deposit paid by such tenant plus accrued interest as provided in subsection (i) of tMs section after deduction for any damages suffered by such landlord by reason of such tenant’s failure to comply with such tenant’s obligations, together with a written statement itemizing the nature and amount of such damages. Any such landlord who violates any provision of tMs subsection shall be liable for twice the amount or value of any security deposit paid by such tenant

       General Statutes § 47a-21 (i) provides for the payment of interest on a security deposit.

       General Statutes § 47a-21 (j) provides in relevant part: “(1) The commissioner may receive and investigate complaints regarding any alleged violation of subsections (b), (d), (h) or (i) of tMs section, provided the commissioner shall not have jurisdiction over the refusal or other failure of any landlord to return all or part of a security deposit if such failure results from the landlord’s good faith claim that the landlord has suffered damages as a result of a tenant’s failure to comply with such tenant’s obligations whether or not the existence or amount of alleged damages is disputed by the tenant. For purposes of this section a good faith claim is deemed to be a claim for actual damages suffered by the landlord for which written notification of such damages has been given to the tenant in accordance with the provisions of subdivisions (1), (2) and (4) of subsection (d) of this section. For the purposes of such investigation, any person who is or was a landlord shall be subject to the provisions of section 36a-17.
      “(2) If the commissioner determines that any landlord has violated any provision of this section over which the commissioner has jurisdiction, the commissioner may, in accordance with section 36a-52, order such person to cease and desist from such practices and to comply with the provisions of this section. ...”

       General Statutes § 36a-52 (a) provides in relevant part: “Whenever it appears to the commissioner that any person has violated, is violating or is about to violate any provision of the general statutes within the jurisdiction of the commissioner, or any regulation, rule, or order adopted or issued thereunder, the commissioner may send a notice to such person by registered or certified mail, return receipt requested .... The notice shall be deemed received by the person on the earlier of the date of actual receipt, or seven days after mailing or sending. Any such notice shall include: (1) A statement of the time, place, and nature of the hearing; (2) a statement of the legal authority and jurisdiction under which the hearing is to be held; (3) a reference to the particular sections of the general statutes, regulations, rules or orders alleged to have been violated; (4) a short and plain statement of the matters asserted; and (5) a statement indicating that such person may file a written request for a hearing on the matters asserted within fourteen days of receipt of the notice. If a hearing is requested within the time specified in the notice, the commissioner shall hold a hearing upon the matters asserted in the notice, unless the person fails to appear at the hearing. After the hearing, the commissioner shall determine whether an order to cease and desist should be issued against the person named in the notice. If the person does not request a hearing within the time specified in the notice or fails to appear at the hearing, the commissioner shall issue an order to cease and desist against the person. No such order shall be issued except in accordance with the provisions of chapter 54.”

       General Statutes § 47a-21 (a) (6) defines landlord as “any landlord of residential real property, and includes (A) any receiver; (B) any person who is a successor to a landlord or to a landlord’s interest; and (C) any tenant who sublets his premises.”

       The term “tenant” is defined in General Statutes § 47a-21 (a) (12) as “a tenant, as defined in section 47a-l. . . General Statutes § 47a-l (Í) defines “tenant” as “the lessee, sublessee or person entitled under a rental agreement to occupy a dwelling unit or premises to the exclusion of others or as is otherwise defined by law.”

         General Statutes § 36a-50 (1)) provides in relevant part: “Whenever it appears to the commissioner that any such person has violated, is violating or is about to violate any such provision, regulation, rule or order, the commissioner may, in the commissioner’s discretion and in addition to any other remedy authorized by law: (1) Bring an action in the superior court for the judicial district of Hartford to enjoin the acts or practices and to enforce compliance with any such provision, regulation, rale or order. Upon a proper showing, a permanent or temporary injunction, restraining order or writ of mandamus shall be granted and a receiver or conservator may be appointed for such person or such person’s assets. The court shall not require the commissioner to post a bond; (2) seek a court order imposing a penalty not to exceed seven thousand five hundred dollars per violation against any such person found to have violated any order issued by the commissioner . . .

       The landlord does not raise as an issue on appeal the assessment of the additional penalty by the court.


author: Per Curiam.

text:
    ALBERT E. WEISS, JR., ET AL. v. MARGARET M. WEISS ET AL.
    (AC 22720)
    Laveiy, C. J., and Foti and West, Js.
    Argued February 25
    officially released April 8, 2003
   Per Curiam.

There is no standing.

The appeal is dismissed.


text:
    STATE OF CONNECTICUT v. DEBORAH A. RANGER
    (AC 22946)
    Flynn, West and McDonald, Js.
    Argued March 17
    officially released April 8, 2003
   Per Curiam.

The judgment is affirmed.


text:
    VANCE JOHNSON v. COMMISSIONER OF CORRECTION
    (AC 22882)
    Lavery, C. J., and Dranginis and Flynn, Js.
    Submitted on briefs March 21
    officially released April 8, 2003
   Per Curiam.

The appeal is dismissed.


text:
    STATE OF CONNECTICUT v. JOANNE KAMERLING
    (AC 22908)
    Foti, Schaller and Hennessy, Js.
    Submitted on briefs March 21
    officially released April 8, 2003
   Per Curiam.

The judgment is affirmed.