author: O’Connell, J. Borden, J.

text:
    Rose Lerman v. Jack Levine et al.
    (5881)
    Borden, Daly and O’Connell, Js.

      (One judge dissenting)

    Argued October 6, 1987
    decision released May 10, 1988

      Walter J. Williams, for the appellants-appellees (named defendant et al.).

      Thomas W. Beecher, for the appellee-appellant (plaintiff).
   O’Connell, J.

The defendants, Jack and Tobey Levine, husband and wife, appeal from a judgment for the plaintiff in an action for reformation of a deed and for partition and sale of real estate. The defendants counterclaimed seeking contribution from the plaintiff for property-related expenses. The defendants claim the trial court erred (1) in reforming the deed, (2) in ordering partition, (3) in refusing to order reimbursement for various payments made by the defendants, and (4) in ordering that the plaintiff be paid one half of the mortgage payoff upon sale, in addition to one half of the net proceeds obtained. In her cross appeal, the plaintiff alleges error in the trial court’s denial of her claim for payments for use and occupancy of the premises by the defendants following her departure from the property. We find no error on the appeal and error on the cross appeal.

The trial court could reasonably have found the following facts. The defendants wished to move from New York to Connecticut, but could not afford to do so. In 1973, at the defendants’ solicitation, the plaintiff, mother of the defendant Tobey Levine, sold her New York home and paid approximately $40,000 toward the purchase of an $80,000 Ridgefield property and related items of personalty. In exchange, the plaintiff was to receive a one-half interest in the Ridgefield property. The defendants agreed to pay the remaining $45,000 mortgage and all other “shelter expenses” excepting real estate taxes, which the parties agreed to pay jointly. Although the parties own the property as joint tenants, the deed as prepared granted the plaintiff only a one-third, rather than the promised one-half, interest in the property. The plaintiff and the defendants lived together in the Ridgefield house until their relationship began to deteriorate to the extent that, on three occasions, the plaintiff suggested the house be sold and the parties go their separate ways. This proposal, however, was never acted on. The plaintiff left the house in 1984 for open-heart surgery and, because of the breakdown in her relationship with the defendants, she declined to return to the house after the surgery. The defendants, however, were not opposed to her returning. The plaintiff subsequently instituted this action, and the trial court ordered reformation of the deed and partition by sale, but denied the plaintiff her claim for use and occupancy payments. The trial court also denied the defendants’ counterclaim for property related expenses.

I

The defendants’ claims of error all concern determinations made by the court based upon the testimony and evidence presented at trial. It is not the function of this court, upon claims of evidentiary error, to duplicate the work of the trial court. “The trier of the facts is free to accept or reject, in whole or in part, the evidence of either party.” Holmes v. Holmes, 2 Conn. App. 380, 382, 478 A.2d 1046 (1984). Upon appeal, we will not retry the facts nor will we evaluate the credibility of witnesses. See Bowman v. Williams, 5 Conn. App. 235, 238, 497 A.2d 1015 (1985), cert. dismissed, 201 Conn. 366, 516 A.2d 1351 (1986), and cases cited therein. “After a review of the record in this case, we find that the trial court’s conclusions on these [four] issues were legally correct and factually supported. The decision of the trial court was not clearly erroneous in light of the evidence and the pleadings in the record as a whole. Practice Book § [4061]; Damora v. Christ-Janer, 184 Conn. 109, 113, 441 A.2d 61 (1981); Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).” MacArthur/Nathan Associates v. Edson Realty, Inc., 3 Conn. App. 675, 676, 491 A.2d 1111 (1985).

II

The plaintiff’s cross appeal alleges that the trial court erred in denying her claim for use and occupancy payments from the defendants for their exclusive use of the property after the plaintiff’s departure therefrom. The trial court held that without proof of ouster, such payments could not be collected from a joint tenant. We disagree.

Although not recently addressed by the courts of this state, the law of cotenancy boasts a long and complex history. One respected treatise makes the astute observation that “[w]hether cotenants must account to each other for rents and profits they have received from their property is not susceptible of a simple answer. [Among other contingencies] the answer would be affected by applicable statutes.” American Law of Property (1st Ed. 1952), Concurrent Estates § 6.14. As will be seen, infra, we have an “applicable statute” in Connecticut.

Our analysis commences in the ancient common law of property. Under the early rule “a cotenant in possession was not chargeable by his cotenant for the use of the property, since his occupancy was presumed to be his own right as the owner of one half of all and every part of the common property. Woolley v. Schrader, 116 Ill. 29, 39, 4 N.E. 658 [1886], citing Bacon’s Abridgement, 32; Coke on Littleton, 209 b. Unless he was bailiff for his cotenant he was not accountable to him for anything he received from the common estate, and could lawfully appropriate all the rent and profits to his own benefit. 7 R. C. L. p. 826.” Hill v. Jones, 118 Conn. 12, 17, 170 A. 154 (1934). In 1709, the English parliament remedied this unfair situation by passage of the Statute of Anne. “This statute made any tenant in common who received more than his just share of the rents and profits liable to his cotenants for the excess; and it was no longer necessary that he should take as bailiff by appointment in order to make him responsible.” 20 Am. Jur. 2d, Cotenancy and Joint Ownership § 40. Because of its early passage, the Statute of Anne is generally considered to be ingrained in the common law, emigrating to this country with the settlors long before the Revolutionary War, a common historical point of demarcation in legal analysis. See Friend v. Childs Dining Hall Co., 231 Mass. 65, 120 N.E. 407 (1918); Johnson v. Johnson, 38 N.D. 138, 164 N.W. 327 (1917). This statutory remedy, however, was limited to property that produced rental payments or other tangible receipts from a third party. The English courts did not construe the Statute of Anne as applicable to an action for benefits enjoyed by a cotenant who occupied common property to the exclusion of his cotenants. Phrased differently, mere sole occupancy did not render the occupying cotenant liable to his co-owners. “This has also been the view of many American courts, which have supported the rule that in the absence of a statute requiring a different result, a cotenant who has enjoyed occupancy of the common premises ... is not liable to the others ... for the reasonable value of his occupancy, where they have not been ousted or excluded . . . .” (Emphasis added.) 20 Am. Jur. 2d, supra, § 41. Notwithstanding a split of authority on this construction of the Statute of Anne, in which some American jurisdictions hold occupying cotenants liable to their co-owners for use and occupancy, we need not decide which view we will adopt as the Connecticut legislature some time ago enacted “a statute requiring a different result.” General Statutes § 52-404 (b) provides “[w]hen two or more persons hold property as joint tenants, tenants in common or coparceners, if one of them occupies, receives, uses or takes benefit of the property in greater proportion than the amount of his interest in the property, any other party and his executors or administrators may bring an action . . . for use and occupation against such person and recover such sum or value as is in excess of his proportion. ” (Emphasis added.)

This statute had its origin in a 1729 act of the Connecticut Colonial General Court. The colonial draftsman, however, did not include any reference to actions for use and occupancy in this predecessor of § 52-404 (b). In 1769, however, the statute was revised to provide a cause of action for “Joint Tenants, Tenants in Common or Co-partners,” when “[o]ne or more of the Owners of such Common Interest shall take, receive, use, or take Benefit of such Common Interest, in greater Proportion than such Common Interest, in greater Proportion than such Owner or Owners that so receives, has, and owns in the Principal Estate.” This statute, with some modification, appeared in mesne revisions over the next two centuries. None of the modifications was relevant to the issue at hand until 1913 when the language “or for use and occupation” was added. Since 1913 there have been no further relevant changes in the statute.

In the present case, the defendants contend that, in order to succeed in her action for use and occupancy payments, the plaintiff must show that she was “ousted,” or forced from the jointly held property. We disagree. Prior to the 1913 amendment, unless there was ouster, a cotenant could not recover for use and occupation from his co-owner in possession under either the Statute of Anne or the Connecticut statute. This was changed by the 1913 amendment, supra. “[I]n construing legislative enactments, we presume that amendments to a statute effect a change in the existing law.” Waterbury Petroleum Products, Inc. v. Canaan Oil & Fuel Co., 193 Conn. 208, 232, 477 A.2d 988 (1984). No reasonable interpretation can be given to the statute after the 1913 amendment but that the legislature intended that cotenants could thereafter sue one another and recover judgments for use and occupancy by the tenant in possession.

The 1913 amendment does not interpose ouster as a condition precedent to the bringing of an action for use and occupancy. We must interpret the statute as written. Ganim v. Roberts, 204 Conn. 760, 763, 529 A.2d 194 (1987); Edelson v. Zoning Commission, 2 Conn. App. 595, 599, 481 A.2d 421 (1984). Section 52-404 (b) is plain and unambiguous, leaving no room for construction. Accordingly, we cannot by construction read into this statute a provision (i.e. ouster) not clearly mandated therein. Johnson v. Manson, 196 Conn. 309, 317, 493 A.2d 846 (1985), cert. denied, 47 U.S. 1063, 106 S. Ct. 813, 88 L. Ed. 2d 787 (1986); Metropolitan District v. Barkhamsted, 3 Conn. App. 53, 70, 485 A.2d 1311, cert. denied, 195 Conn. 801, 487 A.2d 564 (1984). Section 52-404 (b) must be applied as its words direct. Johnson v. Manson, supra, and cases cited therein.

The holding in Hill v. Jones, supra, the only Connecticut case considering the statute after the 1913 use and occupancy language was added, is not contrary to the result we reach today. Hill involved rents collected from tenants in commercial property, a relationship which clearly has not required ouster since the passage of the Statute of Anne. The Hill court expressly excluded from its discussion a case, such as that before us, involving simple use and occupancy. Hill v. Jones, supra, 16. Accordingly, the remarks of the Hill court are, at best, dicta and not binding precedent on this court.

The trial court should have found that the plaintiff was entitled to use and occupancy payments from the date she left the premises.

There is no error on the appeal.

There is error on the cross appeal.

The case is remanded for further proceedings to determine the use and occupancy value and to reschedule the partition sale.

In this opinion Daly, J., concurred.

Borden, J.

Concurring and dissenting. I concur with the majority regarding the appeal. I disagree, however, with the majority regarding the cross appeal. Therefore, I dissent and would find no error on the cross appeal.

I agree with the majority that under General Statutes § 52-404 (b) it is not necessary for a cotenant, who does not occupy the property in question, to establish ouster in order to be entitled to an accounting for a proportion of use and occupancy from her cotenant who occupies the property. An ouster is a wrongful and intentional exclusion from property of one who is entitled to its possession. Diamond v. Boynton, 38 Conn. Sup. 616, 618, 458 A.2d 18 (1983), citing Newell v. Woodruff, 30 Conn. 492,497 (1862); see also Struzinsky v. Struzinsky, 133 Conn. 424, 428, 52 A.2d 2 (1947). The statute does not require that a cotenant, who is out of occupancy and who wishes her cotenant in occupancy to pay her a proper proportion of use and occupancy, must establish that she was wrongfully dispossessed.

I disagree, however, that, as the majority appears to hold, all she has to establish in order to be so entitled is that she is a cotenant out of occupancy. The long-established judicial gloss on the statute, which the majority ignores, requires that she establish much more.

First, we have held that “the vast weight of authority in this jurisdiction requires the allegation of a demand and refusal before a party may successfully invoke the remedy of an accounting.” Zuch v. The Connecticut Bank & Trust Co., 5 Conn. App. 457, 461-62, 500 A.2d 565 (1985). The record in this case is bereft of such pleading or proof.

Second, our case law has uniformly considered the accounting statute to incorporate the complete array of equitable principles. See Vesce v. Lee, 185 Conn. 328, 441 A.2d 556 (1981); Seidel v. Seidel, 110 Conn. 651, 657, 149 A. 394 (1930); Brady v. Brady, 86 Conn. 199, 206-208, 84 A. 925 (1912); Brady v. Brady, 82 Conn. 424, 426, 74 A. 684 (1909). A cotenant’s “due proportion” under General Statutes § 52-404 (b) “cannot be determined without a consideration of all the equities between the parties, arising out of the dealings with respect to the land in question.” Brady v. Brady, 82 Conn. 424, 426, 74 A. 684 (1909). Of critical importance in considering those equities is whether there was an intent or understanding between the cotenants that a payment or contribution would be due. See Vesce v. Lee, supra, 336-38; Neumann v. Neumann, 134 Conn. 176, 178-79, 55 A.2d 916 (1947); Seidel v. Seidel, supra, 656-58; Brady v. Brady, 86 Conn. 199, 206-208, 84 A. 925 (1912).

Indeed, our Supreme Court has repeatedly held that, as between husband and wife, there is a rebuttable “presumption that the parties intended that all expenditures made after [their] separation, even if only made by one of them, would continue to accrue for the benefit of both parties without any future accounting or contribution. Seidel v. Seidel, [supra, 656]; see Neumann v. Neumann, [supra, 178-79]; Brady v. Brady, 86 Conn. 199, 207-208, 84 A. 925 (1912); Kelley v. Madden, 40 Conn. 274, 279-80 (1873); Baldwin v. Breed, 16 Conn. 60, 67 (1843).” Vesce v. Lee, supra, 336-37. “[T]he single fact that the plaintiff vacated the family home, leaving the defendant in possession, was not sufficient to rebut the presumption . . . .” Vesce v. Lee, supra, 336. I see no reason to apply a different principle between, on one hand, a mother and, on the other hand, her daughter and son-in-law. It is anomalous, therefore, to say that if a cotenant in possession spends money to improve the property he is presumed to do so without expectation of contribution from his. close family cotenant, but that the tenant out of possession is at the same time entitled to collect use and occupancy from the cotenant in possession.

Finally, the majority’s construction of the statute does violence to reasonable expectations. I believe that the judicial gloss which our courts have long placed on the statute conforms to such expectations. I do not believe that the statutory amendment in 1913, which has heretofore never been viewed as applicable regardless of the equities between the parties, including their intentions and understandings, justifies the result reached by the majority on the cross appeal.

In this case, the trial court found that the plaintiff left the premises voluntarily. The plaintiff does not chailenge this finding. There is no evidence in this record of any intention or understanding on the part of any of the parties that the defendants were expected to pay use and occupancy to the plaintiff during the period of her voluntary absence. Under these circumstances, I would hold that the plaintiff was not entitled to an accounting from the defendants for use and occupancy.

       The named defendant and his wife are referred to as the defendants in this opinion. The other defendants, creditors with interests in the subject property, are not involved in this appeal.

       For the purposes of this opinion no distinction is made between the terns “joint tenant” and “cotenant” and they are used interchangeably.

       “Bailiff” is used in its older meaning of “ ‘a servant that has the administration and charge of lands, goods and chattels, to make the best benefit for the owner, against whom an action of account lies, for the profits which he has raised or made, or might by his industry or care have raised or made.’ ” Barnum v. Landon, 25 Conn. 137, 149 (1856).

       The Statute of Anne provides in pertinent part: “Actions of Account shall and may be brought and maintained against the Executors and Administrators of every Guardian, Bailiff, and Receiver; and also by one Joint-tenant, and Tenant in Common, his Executors and Administrators, against the other, as Bailiff for receiving more than comes to his just share or Proportion, and against the Executor and Administrator of such Joint-tenant, or Tenant in Common.” Act of Anne, c. 16, XXVII (1704); see also 2 Statute of Westminster cs. 6, 22.

       Cases from the jurisdictions supporting this view are collected in 27 A.L.R. 197, 198, 206, 211-12; 51 A.L.R.2d 413-15 § 8.

       Cases from the jurisdictions supporting this view are collected in 27 A.L.R 198, 211-12; 51 A.L.R.2d 421-22 § 10.

       The venerable Swift’s Digest, published in 1822, states that while an action by a party other than a bailiff would not lie at common law, “now in England, as well as in this country, account will lie by statute” without such status. 1 Swift, Digest 580.

       Chapter 38 of the Connecticut Colonial Laws of 1729 provides that: “Be it Enacted by the Govemour, Council and Representatives, in General Court Assembled, and by the Authority of the same, that Executors, who are also Residuary Legataries are with-holden from them, by their Co-Executors, may bring their Action of Account against their Co-Executors for the Recovery thereon; And the same Action is also hereby allowed to Residuary Legataries, against Executors; Any Law, Usage or Custom to the contrary not with standing.”

       A footnote to the 1875 revision is misleading. Relying on Lacon v. Davenport, 16 Conn. 331 (1844), the footnote appears to state that Lacon disallows actions between cotenants merely because of the status of the parties as cotenants. In fact, Lacon is devoted to a question of whether the defendant had been proved to be the plaintiffs bailiff. Id., 343. See footnote 3, supra.

       See, e.g., Revisions of 1796; 1805; 1808; 1821; 1835; 1838; 1849; 1866; 1875; 1888 (§ 1039); 1902 (§ 954); 1913 (§ 954); 1918 (§ 5990); 1930 (§ 5837); 1949 (§ 8148).

       Chapter 18 of the General Statutes of 1913 provides in pertinent part that “when two or more persons hold estate as joint tenants, tenants in common, or coparceners, if one of them shall occupy, receive, use, or take benefit of such estate in greater proportion than the amount of his interest in the principal estate, any other party and his executors or administrators, may bring an action of account or for me and occupation against such receiver and recover such sum or value as is in excess of his proportion.” (Emphasis added.)


source: Caselaw Access Project

author: Borden, J. Bieluch, J.,

license: Public Domain

text:
    Park City Hospital v. Commission on Hospitals and Health Care et al.
    (5470)
    Borden, Daly and Bieluch, Js.

      (One judge dissenting)

    Argued December 11, 1987
    decision released May 17, 1988

      Sigmund L. Miller, with whom was George P. D’Amico, for the appellant (plaintiff).

      Paul J. Lahey, assistant attorney general, with whom, on the brief, were Joseph I. Lieberman, attorney general, and Richard J. Lynch, assistant attorney general, for the appellee (named defendant).

      Arnold Sbarge, for the appellee (defendant Medical Management Corporation).
   Borden, J.

The plaintiff appeals from the judgment of the trial court dismissing its administrative appeal for lack of subject matter jurisdiction. The plaintiff challenges the procedure by which the court determined that it was not aggrieved by the decision of the named defendant, the commission on hospitals and health care (commission). We find no error.

In January, 1983, the commission granted a certificate of need to the defendant Medical Management Corporation (MMC) to establish an ambulatory surgical facility in Bridgeport. The proceedings of the commission in connection with MMC’s application for a certificate of neéd were conducted pursuant to the Uniform Administrative Procedure Act (UAPA), General Statutes §§ 4-166 through 4-189.

The plaintiff, an intervenor in those proceedings, challenged the commission’s action by filing an appeal to the Superior Court pursuant to General Statutes § 4-183. In its complaint, the plaintiff alleged facts which it claimed showed that it was aggrieved by the decision of the commission. The commission, in its answer, denied the plaintiff’s allegation of aggrievement.

During the pendency of the appeal, the plaintiff filed an “amended application for stay and restraining order pending decision of this appeal.” The purpose of the application for stay, pursuant to General Statutes § 4-183 (c), was to prevent the opening of MMC’s surgical facility pursuant to the certificate of need, pending a final decision by the trial court.

Hearings were held on the plaintiff’s application for stay on various dates over the course of two months. At the commencement of those hearings, the court directed the parties to present and to argue the facts constituting the alleged aggrievement. The court stated that, unless the plaintiff could show that it was aggrieved by the commission’s decision, the court lacked subject matter jurisdiction over the appeal.

On March 5, 1986, the plaintiff withdrew its application for stay because MMC’s surgical facility had been in operation for several months. On March 7,1986, the court filed its memorandum of decision, concluding that the plaintiff had not established aggrievement. The court therefore dismissed the plaintiffs appeal for lack of jurisdiction. This appeal followed.

The plaintiff claims that the court erred in dismissing its appeal because (1) the only matter before the court was the plaintiffs application for stay, and (2) the application under consideration was withdrawn prior to the filing of the decision on that application. We disagree.

Appeals from the decisions of state agencies are governed by the UAPA, which provides in pertinent part: “A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision in a contested case is entitled to judicial review by way of appeal under [the UAPA] . . . .” (Emphasis added.) General Statutes § 4-183 (a). Pleading and proof of facts which constitute aggrievement are essential prerequisites to the trial court’s subject matter jurisdiction over an administrative appeal. Ribicoff v. Division of Public Utility Control, 38 Conn. Sup. 24, 26-27, 445 A.2d 325 (1980), aff’d, 187 Conn. 247, 445 A.2d 324 (1982); Beckish v. Manafort, 175 Conn. 415, 419, 399 A.2d 1274 (1978). As such, aggrievement is a threshold issue which is determined without reference to whether the claims of error on appeal are meritorious. Ribicoff v. Division of Public Utility Control, supra, 27.

The plaintiff makes much of the fact that the pleadings in this case were not closed. We note first, however, that the commission had filed an answer in which it denied the plaintiffs allegations of aggrievement. Therefore, as between the plaintiff and the agency whose decision was being challenged, the pleadings were closed.

Furthermore, we note that, on the basis of the commission’s denial of the plaintiff’s allegations of aggrievement, the trial court directed the parties to address the issue of aggrievement in the course of the hearing on the application for stay, and gave clear indication to the parties that the evidence adduced would be considered on the issue of whether the court had subject matter jurisdiction over the appeal. See footnote 2, supra. Lack of subject matter jurisdiction may be raised at any time. Baldwin Piano & Organ Co. v. Blake, 186 Conn. 295, 297, 441 A.2d 183 (1982); Arseniadis v. Arseniadis, 2 Conn. App. 239, 242, 477 A.2d 152 (1984). A trial court may act on its own motion when the lack of jurisdiction is brought to its attention. Valley Cable Vision, Inc. v. Public Utilities Commission, 175 Conn. 30, 32, 392 A.2d 485 (1978); Lenge v. Goldfarb, 169 Conn. 218, 222, 363 A.2d 110 (1975); see also Practice Book § 145. “Whenever the absence of jurisdiction of the court is brought to its attention, the matter must be decided before any further action is taken.” East Side Civic Assn. v. Planning & Zoning Commission, 161 Conn. 558, 559, 290 A.2d 348 (1971); Baldwin Piano & Organ Co. v. Blake, supra, 297. Therefore, the court was authorized to take up the question of subject matter jurisdiction at this juncture in the proceedings.

Similarly, the plaintiffs argument that the trial court acted improperly because it considered the question of subject matter jurisdiction when the only matter brought before it for decision by the parties was the application for stay, is of no merit. As discussed above, the court is permitted to consider the question of subject matter jurisdiction at any time and may do so on its own motion. Practice Book § 145. Having given the parties proper notice that it intended to decide whether the plaintiff had sufficiently pleaded and proved aggrievement to give it jurisdiction over the appeal, the court was within its discretion in addressing this issue in the context of the hearing on the plaintiff’s application for a stay. For this reason also, the plaintiff’s claim that “[t]he court was not called upon to, nor could it, address the merits of the appeal” is unpersuasive. In fact, the court did not address the merits of the appeal; rather, it addressed the threshold issue of aggrievement, or subject matter jurisdiction, which must be determined without reference to whether the claims of error raised in the administrative appeal are valid. Ribicoff v. Division of Public Utility Control, supra. Likewise, the plaintiff’s argument that more evidence of aggrievement could have been presented at some later hearing on the merits is unavailing where the question involved was one of subject matter jurisdiction, and where the plaintiff received fair notice that the facts going to prove aggrievement adduced at the hearing on the application for stay would be considered on the issue of subject matter jurisdiction. Thus, even the subsequent withdrawal of the plaintiff’s application for stay did not deprive the court of its authority to raise the issue of aggrievement or its responsibility to address that threshold issue, once it had been raised and litigated pursuant to proper notice to the parties that the issue would be addressed by the court based on the evidence and arguments presented at the hearing.

The plaintiffs arguments to the contrary are premised upon a fundamental misunderstanding of the role that subject matter jurisdiction plays in the operation of our judicial system. Jurisdiction over the subject matter goes to the competency of a court to render a valid judgment. 1 E. Stephenson, Connecticut Civil Procedure (2d Ed.) § 3 (b). Its limits on the authority of the judiciary are established by our legislature and cannot be waived or modified by the parties. Lenge v. Goldfarb, supra; Arseniadis v. Arseniadis, supra.

It is true that the timing of the procedure adopted by the trial court in this case was unorthodox, and we do not hold that a court should undertake to adjudicate aggrievement whenever an application for a stay is presented in an administrative appeal. Ordinarily, the court should not do so. The preferable procedure is to adjudicate that issue pursuant to a properly presented motion to dismiss based on lack of aggrievement, or when the administrative appeal is assigned for hearing on its merits. Under the circumstances of this case, however, we conclude that the court did not err in choosing to address the issue of aggrievement at an early stage in the proceedings after affording the parties adequate notice of its intention to do so.

The dissent’s insistence on the need for compliance with the rules regarding the raising of subject matter jurisdiction pursuant to a motion to dismiss or at the hearing on the merits, with which we have no quarrel in general, overlooks two factors particular to this case. First, the plaintiff did not at any time object to the procedure adopted by the trial court. In fact, the transcripts supplied to this court show that only the defendants raised concerns regarding the court’s premature consideration of the issue of aggrievement. Thus, the plaintiff is deemed to have waived any procedural error committed by the court in adopting its unorthodox procedure. Second, just as a court may, without a formal motion to dismiss, sua sponte raise the issue of subject matter jurisdiction later in the proceedings than is called for by the rules; see Lenge v. Goldfarb, supra; Arseniadis v. Arseniadis, supra; it may also do so earlier than is called for, at least in the absence of an objection to that procedure.

Similarly, the dissent’s assertion of a due process violation misses its mark in this case. The essence of due process in a case like this is whether there was adequate notice of the procedure, and a full and fair opportunity to litigate the issue in question. Hartford Federal Savings & Loan Assn. v. Tucker, 196 Conn. 172, 176-77, 491 A.2d 1084, cert. denied, 474 U.S. 920, 106 S. Ct. 250, 88 L. Ed. 2d 258 (1985). The court gave adequate notice to the plaintiff of its intention to determine the issue of aggrievement, and the parties fully litigated and briefed that issue over a period of two months.

There is no error.

In this opinion Daly, J., concurred.

Bieluch, J.,

dissenting. I cannot agree with the conclusion of the majority opinion supporting the admittedly unorthodox procedure of the trial court. The action of the court in dismissing the administrative appeal, when called upon to consider only the plaintiff’s application for a stay, was not only unorthodox and unprecedented, but also unwarranted, illegal and a denial of due process notwithstanding “notice of its intention to do so.” The majority’s finding that the notice given was adequate is without basis in fact. The court’s announced shift at the hearing from the plaintiff’s request for a stay to the plaintiff’s claim of aggrievement in its administrative appeal cannot be called “adequate notice” of an improper procedure. Notice of an illegal procedure does not clothe it with legality because of such warning.

The questioned procedure was admitted by the trial court to be without precedent. The court explained its action in this manner: “I do not think I can differentiate between aggrievement for the purpose of this hearing, and aggrievement for the purpose of the hearing in chief, if you will. ... I do not know whether we have definitely nailed this down, but I think it would be appropriate to proceed all the way through and then I would simply make a finding as to aggrievement, yes or no. And then if I do find aggrievement, then I would make a ruling with respect to the stay. But I think the two of them are one of those peculiar things where they are sort of wrapped up in each other .... I am not sure that this has been really addressed in any appellate case per se, but as I have indicated before, that is the way I look at it. If you are not aggrieved, you are out for this purpose and it is just one of those things that just happened to come in. That it was not set down for a hearing on aggrievement per se. But I think as the case goes along that I can treat it for that purpose.”

The right of the plaintiff to a stay pending an administrative appeal under General Statutes § 4-183 (c) of the Uniform Administrative Procedure Act (UAPA) should not be merged with the right of the plaintiff to take the appeal under § 4-183 (a). This is self-evident in the provision of § 4-183 (c) that “[t]he agency may grant, or the reviewing court may order, a stay upon appropriate terms.” That the plaintiff sought a stay from the court in this instance, rather than from the agency, should not expand the issue before the court; in either forum, the only question for resolution is the plaintiffs entitlement to a stay of the enforcement of the agency’s decision under § 4-183 (c) pending the later determination of the administrative appeal.

In passing upon an application for a stay of enforcement of an agency order or decision, the proper standard for the court to apply is the “balancing of the equities” test. Griffin Hospital v. Commission on Hospitals & Health Care, 196 Conn. 451, 459-60, 493 A.2d 229 (1985). “Among the ‘equities’ to be placed on the scales, of course, are the general equitable considerations which are involved in the issuance of a temporary injunction to preserve the status quo pendente lite.” Id., 460. The trial court in its consideration of the plaintiff’s motion before it for a stay of the administrative decision did not even purport to apply the standard required for its decision. If one may analogize the court’s action, it was as if the court dismissed an action for a permanent injunction when it was asked only to rule upon an application for a temporary injunction.

The issues before a trial court are defined by the particular matter submitted to it. As the majority opinion states, aggrievement is placed before the court for adjudication “pursuant to a properly presented motion to dismiss based on lack of aggrievement, or when the administrative appeal is assigned for hearing on its merits.” The majority calls that procedure “preferable.” I call it “required.”

The court’s memorandum of decision justified its premature consideration of the plaintiff’s allegation of aggrievement as follows: “The case comes before the undersigned on an application by the plaintiff for a stay of the decision entered by the commission giving approval to [the defendant Medical Management Corporation] for construction of a surgicenter. The matter was heard on various dates commencing on August 15, 1985, and concluding on October 15,1985. During the course of the hearing, the court raised the issue as to whether any relief could be granted unless the plaintiff could establish that it was aggrieved by the commission’s decision. . . . After discussion of the issue with counsel, the court ruled that the hearing would encompass the issue of aggrievement .... The basis of the plaintiff’s claim of aggrievement is contained in paragraph 15 of the complaint: . . . This paragraph was denied by the defendant commission, thereby putting the matter of aggrievement in issue. At the time of the hearing, no answer had been filed by the defendant MMC.” Simply put, the court made and applied its own procedural rule ipso facto. In that, it erred.

“The Superior Court is empowered to adopt and promulgate rules ‘regulating pleading, practice and procedure in judicial proceedings in courts in which they have the constitutional authority to make rules, for the purpose of simplifying proceedings in the courts and of promoting the speedy and efficient determination of litigation upon its merits. Such rules shall not abridge, enlarge or modify any substantive right . . . .General Statutes § 51-14 (a).” Steadwell v. Warden, 186 Conn. 153, 162, 439 A.2d 1078 (1982). No single judge may usurp that power from the entire judiciary. Orderly procedure and due process in the administration of justice requires the uniform application of the rules of practice properly adopted by the authorized body.

The procedural rules for civil actions apply to administrative appeals. Practice Book § 256. The order of allowed pleadings is prescribed in Practice Book § 112. The schedule or time for pleadings is set by Practice Book § 114. Only when the pleadings of the parties have terminated in an issue or issues of fact decisive of the merits of the case “shall [it] be placed on the trial list.” Practice Book § 253. “[I]n an administrative appeal, the plaintiff shall file his brief within thirty days after the filing of the defendant’s answer and the return of the record; the defendant’s brief shall be filed within thirty days of the plaintiff’s brief. Within seventy-five days of the filing of the defendant’s answer and the return of the record, the case shall be placed, without the need for a claim, on the trial list for administrative appeals.” Practice Book § 257.

In appeals under the UAPA, the appeal shall be confined to the record and “[t]he court, upon request, shall hear oral argument and receive written briefs.” General Statutes § 4-183 (f). A hearing is required in all administrative appeals under the provisions of General Statutes § 51-197b (a). “Due process is the keystone of our system of justice. A fair trial is the touchstone of due process. The principal component of a fair trial is a fair hearing after fair notice.” Shaw v. Planning Commission, 5 Conn. App. 520, 525, 500 A.2d 338 (1985). “ ‘An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under the circumstances, to apprise interested parties of the pendency of the action and afford them the opportunity to present their objections.’ Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 [70 S. Ct. 652, 94 L. Ed. 865] (1950). Failure to give notice violates ‘the most rudimentary demands of due process of law.’ Armstrong v. Manzo, 380 U.S. 545, 550 [85 S. Ct. 1187, 14 L. Ed. 2d 62] (1965). See also World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291 [100 S. Ct. 559, 62 L. Ed. 2d 490] (1980); Mathews v. Eldridge, 424 U.S. 319, 333 [96 S. Ct. 893, 47 L. Ed. 2d 18] (1976); Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 110 [89 S. Ct. 1562, 23 L. Ed. 2d 129] (1969); Pennoyer v. Neff, 95 U.S. 714, 733 [24 L. Ed. 565] (1878).” Peralta v. Heights Medical Center, Inc., 485 U.S. , 108 S. Ct. 29, 99 L. Ed. 2d 75 (1988).

The plaintiff was denied a fair hearing at a properly noticed trial on the issue of its aggrievement by the administrative decision appealed from. The premature and unanticipated “hearing” given the plaintiff on the issue of aggrievement to take the administrative appeal where the only question before the trial court was the plaintiffs entitlement to a stay of execution was improper and a denial of due process. “The fact that the pleadings were not closed restricts the authority of the trial court to render permanent judgments on pending claims.” Doublewal Corporation v. Toffolon, 195 Conn. 384, 391, 488 A.2d 444 (1985).

For these reasons, I would find error.

       We note that the plaintiff does not challenge the substance of the trial court’s determination that it failed to plead or prove aggrievement properly. After briefs were filed, the plaintiff sought leave to add this issue to its statement of the issues and to file a supplemental brief. That request was denied by this court. Therefore, our review is limited to the manner in which the court proceeded to make that determination.

       At the commencement of the hearing, the court pointed out: “It’s a jurisdictional matter. Unless there is a finding of aggrievement, the court is bound by the Baldwin Piano [sic] case, if you will, and numerous others, that unless the court can make a finding that the plaintiff is aggrieved, and [that] has been alleged in the amended application [for stay], as well as in the original application, as well as in the original appeal ... I take the position, which may be a strict constructionist, if you will, the court has no jurisdiction to render any relief whatsoever, has no jurisdiction to address the issue in chief, and has no authority to grant any relief ancillary thereto by way of stay .... [N]umerous cases . . . say once the issue has been raised, and the court can raise it suo moto with respect to the jurisdiction matter . . . that has to be decided before I can take one further step .... I don’t think I can differentiate between aggrievement for the purpose of this hearing, and aggrievement for the purpose of the hearing in chief, if you will. I go back to what I said before about being a strict constructionist on jurisdiction. I think the cases are quite clear that I cannot take one step further unless an issue of jurisdiction has been resolved, and I have no jurisdiction to hear the matter unless aggrievement has been established .... I raised the issue of aggrievement. It was raised in the pleadings, and I would presume that that would be the first order of business, to get something on the record concerning aggrievement.”

       The state of the pleadings with respect to MMC, the other appearing defendant, is less clear. No answer to the complaint was ever filed by MMC. A motion for default for failure to plead was filed by the plaintiff against MMC on August 9,1985. Later, while the court was hearing the evidence presented on the application for stay, MMC filed a request to revise, to which the plaintiff objected and with which it subsequently complied in part without further ruling by the court. MMC also filed a motion to dismiss on subject matter jurisdictional grounds less than a week before the court filed its memorandum of decision dismissing the appeal.

       “[Practice Book] Sec. 145. —waiver and subject matter jurisdiction.
      “Any claim of lack of jurisdiction over the subject matter cannot be waived; and whenever it is found after suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the appeal.”

       Nor had an answer been filed by the remaining two defendants, St. Vincent’s Medical Center and Bridgeport Hospital.


author: Norcott, J.

text:
    Edward J. O’Leary et al. v. Industrial Park Corporation
    (5407)
    Spallone, O’Connell and Norcott, Js.

      Argued February 3
    decision released May 17, 1988

      Elliot G. Macht, with whom, on the brief, was Laurence P. Rubinow, for the appellant-appellee (defendant).

      Philip L. Steele, for the appellees-appellants (plaintiffs).
   Norcott, J.

This appeal stems from a judgment for the plaintiffs, Edward J. O’Leary and Raymond M. Vincunas, who were general contractors doing business as Manchem, a limited partnership with which the defendant signed a bond for deed in connection with the construction of a facility for the storage and distribution of herbicides, pesticides and fertilizers in Man-Chester. The defendant appeals to this court after its motions to set aside the plaintiffs’ verdict and for judgment notwithstanding the verdict were denied. The defendant claims error in five of the trial court’s rulings. The plaintiffs cross appeal with respect to the trial court’s granting of a directed verdict in favor of the defendant on an unfair trade practices claim set forth as the fourth count in the complaint. We find no error.

The jury could reasonably have found the following facts. In July of 1982, the plaintiffs were general contractors specializing in the construction of warehousing and manufacturing facilities. On five different occasions prior to 1982, the plaintiffs had purchased land, constructed and leased buildings specifically for the storage of herbicides, pesticides and fertilizers for distribution to Chemlawn Corporation (Chemlawn). The defendant was the owner of an industrially-zoned lot in the Manchester Industrial Park (MIP) located in Manchester.

During August and September of 1982, representatives of the plaintiffs and the defendant began negotiations for the purchase of the defendant’s lot which Chemlawn had identified as a possible site for one of its facilities. Chemlawn required a site for a facility the principal purpose of which was to be the storage, mixture and loading of chemicals onto trucks which were to be washed and cleaned at the site.

A town well was located in the MIP some 1700 feet from the proposed site. This well appeared on a municipal map which was recorded in the Manchester town hall. In addition, a large number of tree stumps and other debris had been dumped on the defendant’s lot, and the rear slope of the lot required grading.

Pursuant to their agreements with Chemlawn, the plaintiffs intended to purchase the defendant’s lot, build a storage, distribution and office facility and lease the furnished premises to Chemlawn. As a part of the preliminary negotiations, a representative of the defendant, William Bellock, represented to the plaintiffs that the lot was suitable for the construction of an industrial building. Bellock was aware of the purpose for which Chemlawn intended to use the buildings.

On October 26, 1982, the plaintiffs and the defendant executed a bond for deed for the purchase of the lot. The purchase price was $90,000, payable by a $5000 deposit with the balance due upon the sale and transfer of title to occur on or before November 10, 1982. The agreement also required that the tree stumps be removed and the slope graded within thirty days of the closing. The agreement finally provided that if the buyers [the plaintiffs] were denied a building permit, the defendant was to return the deposit.

The plaintiffs submitted their construction plans to the town, and on November 10, 1982, they, together with Chemlawn officials, met with officials from the state departments of health and environmental protection and the town water and sewer department. As of November 10, 1982, the plaintiffs had not paid any additional monies to the defendant pursuant to the agreement, and the defendant had neither removed the tree stumps nor graded the slope on the subject lot. Prior to this meeting, the town water and sewer department had recommended denial of the planned construction because, on the basis of prior experience, it was concerned about the possibility of the pollution of the town well.

At the November 10 meeting, many concerns were expressed regarding the proposed Chemlawn facility. After that meeting, the town’s zoning enforcement officer wrote the plaintiffs to inform them that, pursuant to his review of the plans and of the data produced at the November 10 meeting, no zoning permit or building permit would be issued because the proposed use posed a “significant hazard to the public water supply.” Faced with this situation, the plaintiffs requested the return of the $5000 deposit from the defendant which refused to abide by the request. Despite their continued efforts to influence the town officials, the plaintiffs were unsuccessful in reversing the opposition. On December 2, 1982, Chemlawn ultimately advised the plaintiffs that it would look elsewhere for a site.

On March 29, 1983, the plaintiffs commenced an action against the defendant for breach of contract, misrepresentation and a violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110b, to which the defendant filed a counterclaim in two counts alleging breach of contract. Following a trial, judgment was rendered in accordance with the jury verdict in favor of the plaintiffs. The trial court denied the defendant’s motions to set aside the verdict and for judgment notwithstanding the verdict and the court also denied the plaintiffs’ motion to set aside the verdict with respect to the fourth count of the complaint.

I

The defendant claims that the trial court erred (1) in denying its posttrial motions inasmuch as the jury’s verdict on the third count was inconsistent with the jury’s response to an interrogatory question and was contrary to the evidence and to the law, (2) in refusing to submit to the jury interrogatories requested by the defendant, (3) in denying the defendant the right to state the grounds of its objection to an evidentiary offer and to make an offer of proof, (4) in admitting into evidence orders of the department of environmental protection (DEP), and (5) in permitting the plaintiffs’ counsel to make improper statements to the jury during final argument. We disagree.

A

The essence of the defendant’s first claim of error is that the jury’s verdict as to the third count should be set aside because of its allegedly inconsistent answer to a certain interrogatory.

In reviewing a trial court’s refusal to set aside a verdict, “ ‘[w]e must consider the evidence, including reasonable inferences which may be drawn therefrom, in the light most favorable to the parties who were successful at trial; Bleich v. Ortiz, 196 Conn. 498, 501, 493 A.2d 236 (1985); giving particular weight to the “concurrence of the judgments of the judge and the jury, who saw the witnesses and heard the testimony . . . .” ’ Bound Brook Assn. v. Norwalk, 198 Conn. 660, 667, 504 A.2d 1047, cert. denied, 479 U.S. 819, 107 S. Ct. 81, 93 L. Ed. 2d 36 (1986), quoting Chanosky v. City Building Supply Co., 152 Conn. 642, 643, 211 A.2d 141 (1965). The defendant can prevail on this claim only if we find that the jury could not reasonably and legally have reached its conclusion. Bound Brook Assn. v. Norwalk, supra.” Aksomitas v. Aksomitas, 205 Conn. 93, 100, 529 A.2d 1314 (1987). Generally, great weight is given to a trial court’s refusal to set aside the verdict and every reasonable presumption should be given in favor of its correctness. Waldron v. Raccio, 166 Conn. 608, 618, 353 A.2d 770 (1974). “The role of an appellate court where an appellant seeks a judgment contrary to a general verdict on the basis of the jury’s allegedly inconsistent answers to such interrogatories is extremely limited. See Belchak v. New York, N.H. & H.R. Co., 119 Conn. 630, 179 A. 95 (1935); Murteza v. State, 7 Conn. App. 196, 202-203, 508 A.2d 449, cert. denied, 200 Conn. 803, 510 A.2d 191 (1986). ‘To justify the entry of a judgment contrary to a general verdiet upon the basis of answers to interrogatories, those answers must be such in themselves as conclusively to show that as a matter of law judgment could only be rendered for the party against whom the general verdict was found; they must negative every reasonable hypothesis as to the situation provable under the issues made by the pleadings; and in determining that, the court may consider only the issues framed by the pleadings, the general verdict and the interrogatories, with the answers made to them, without resort to the evidence offered at the trial.’ (Emphasis added.) Belchak v. New York, N.H. & H. R. Co., supra, 634.” Schenefield v. Greenwich Hospital Assn., 10 Conn. App. 239, 246-47, 522 A.2d 829 (1987).

The third count of the plaintiffs’ amended complaint alleged that the defendant had both fraudulently misrepresented and failed to disclose the situation concerning the presence of the town well in the MIP. The failure to disclose the existence of the town well 1700 feet from the subject site was but one claim alleged in the third count. Another claim alleged was the defendant’s fraudulent misrepresentation that the site was suitable for the intended use. With respect to the third count, the trial court submitted the following interrogatories, among others, to the jury. (1) “Do you find that any agent or employee of Industrial Park Corporation represented to the plaintiffs that the subject property was suitable for the construction of a facility that would involve the storage and distribution of chemical herbicides, pesticides and fertilizers?” (2) “If so, do you find also that the representation made by the defendant’s agent that the property was suitable for the construction of a facility that would involve the storage and distribution of chemical herbicides, pesticides and fertilizers was untrue and known to be untrue by the party making it?”

The negative response to the second interrogatory suggests that the jury was not convinced that the defendant knew that the site was unsuitable for Chem-lawn’s intended use. The defendant contends that because the defendant did not know that the representation of suitability was untrue, the jury must also have concluded that the defendant never intended to mislead the plaintiffs and thereby induce them into the agreement. The defendant further contends that since the court instructed the jury that the plaintiffs had to prove that the defendant acted with intent to mislead, the jury verdict is contrary to the law and against the evidence in the case.

The defendant’s focus on this one interrogatory is misplaced. The plaintiffs, in alleging fraudulent misrepresentation, did not have to prove that the defendant knew that the site was unsuitable, only that the defendants representation was made recklessly, without belief in its truth. See J. Frederick Scholes Agency v. Mitchell, 191 Conn. 353, 464 A.2d 795 (1983); see also Miller v. Appleby, 183 Conn. 51, 56, 438 A.2d 811 (1981). No interrogatory was submitted to the jury which would have required them to determine whether they found that the representation was made recklessly or without belief in the truth, and the defendant took no exception to the trial court’s instruction to the jury on this issue. It is the appellant’s duty to prepare an adequate record for appellate review. Practice Book § 4061; Carpenter v. Carpenter, 188 Conn. 736, 739 n.2, 453 A.2d 1151 (1982). The jury could have found that, without knowing definitively that the site was suitable, the defendant intended to induce the plaintiffs to enter the agreement by means of the recklessness of its representation; in this respect, the jury’s answer to the second interrogatory is not at all inconsistent with its verdict.

Furthermore, with respect to the plaintiff’s claim of fraudulent nondisclosure, we note that the jury’s responses to the fifth, sixth and seventh interrogatories regarding the third count indicate that the jury did, in fact, conclude that the defendant knew of the existence of the well, had a duty to disclose that fact to the plaintiffs, and failed to do so. The failure to disclose known facts and a request or a circumstance which imposes a duty to speak, forms the essence of fraudulent misrepresentation. Marchand v. Presutti, 7 Conn. App. 643, 645, 509 A.2d 1092 (1986). We find the defendant’s contention that the map recorded in the town hall gave the plaintiffs constructive knowledge of the town well to be without merit. The doctrine of constructive knowledge does not apply to serve as a shield of protection from accountability for one who makes false representations to another’s damage. Aksomitas v. Aksomitas, supra, 99. From the evidence produced at trial, the jury could have reasonably found that the defendant’s failure to disclose this information induced the plaintiffs to enter into the agreement. The jury’s response to the second interrogatory can reasonably be construed as consistent with its verdict. The defendant has failed to meet its burden of proving that, as a matter of law, judgment could have been rendered only for the defendant with respect to the third count. As such, the trial court did not err in denying the defendant’s motion to set aside the verdict as to this claim.

B

The defendant’s next contention is that the trial court’s refusal to submit to the jury certain interrogatories requested by the defendant with respect to the first and second count was error.

To find for the plaintiffs on the first count, the jury had to find (1) that the agreement provided for the return of the deposit in the event the plaintiffs were denied a building permit, and (2) that the plaintiffs were denied a building permit. The defendant raised three special defenses: anticipatory breach; breach of contract; and the plaintiffs’ failure to make reasonable efforts in obtaining a building permit. The defendant requested that the trial court submit seven interrogatories regarding the issue of the building permit. The trial court refused to submit any of the requested interrogatories as to the first count to the jury.

The defendant also requested that four interrogatories concerning the removal of tree stumps from the site be submitted with respect to the second count. The trial court submitted all but the following to the jury: “Do you find that the defendant was justified in not performing said work because of the plaintiffs’ anticipatory breach of the Bond for Deed?”

“Where two or more counts have been alleged in a complaint . . . the defendant has the right to save himself from the implication of a general verdict by seeking from the jury answers to apt and proper interrogatories. Sheeler v. Waterbury, 138 Conn. 111, 114-15, 82 A.2d 359 (1951). In such situations, it is the duty of the trial court, upon request, to submit such interrogatories as would accomplish this purpose. Pentino v. Gallo, 107 Conn. 242, 244, 140 A. 105 (1928).” Hartford v. Anderson Fairoaks, Inc., 7 Conn. App. 591, 594, 510 A.2d 200 (1986). The trial court is given broad discretion regarding the number and content of such interrogatories and it should not permit interrogatories which confuse, mislead or do nothing to aid in the proceedings for a subsequent review. Id., 595.

Whether the plaintiffs tried to obtain and were denied a building permit was an uncomplicated issue raised by the plaintiffs in the first count of their complaint. The plaintiffs’ failure to prevail on this issue would have precluded their recovery on that count. Evidence was presented to the jury to enable it to resolve the issues in the first count. The seven interrogatories requested by the defendant would have added little to, and held the potential of complicating the resolution of, a simple factual issue.

Nor did the trial court err in its refusal to submit the defendant’s fourth interrogatory. An interrogatory should “ ‘call for a finding of but a single fact. When practicable each question should be so framed as to call for a categorical answer. Each question should ask for the finding of a fact and never for a conclusion of law.’ ” Id. Against these standards, we find that the trial court did not abuse its discretion in refusing to submit the requested interrogatory to the jury. “Do you find the defendant was justified in not performing said work because of the plaintiffs’ anticipatory breach of the Bond for Deed?” At best, the interrogatory presents a mixed question of fact and law which, besides being improper, could only have been confusing for the jury.

C

The defendant’s next claims of error involve the trial court’s evidentiary rulings. The defendant claims that the court denied its counsel the right to state the grounds of its objection to an evidentiary offer and the right to make a separate and distinct offer of proof, and erred in admitting into evidence certain orders of the department of environmental protection.

We first note that the record reveals that the defendant never raised these claims during the motion to set aside the verdict. “Where a claimed error of a nonconstitutional nature is not brought to the attention of the trial court, appellate review of thát claim is available only if it constitutes plain error. Practice Book § 4185; Kolich v. Shugrue, 198 Conn. 322, 325, 502 A.2d 918 (1986); Rokus v. Bridgeport, 191 Conn. 62, 67, 463 A.2d 252 (1983).” Aksomitas v. Aksomitas, supra, 97. The plain error doctrine is reserved for the most exceptional circumstances in which the record supports a claim that the party has been deprived of a fundamental constitutional right and a fair trial; Cahill v. Board of Education, 187 Conn. 94, 100, 444 A.2d 907 (1982); or where the error in some way directly affects the outcome of the case. Berchtold v. Maggi, 191 Conn. 266, 274, 464 A.2d 1 (1983); see also Smith v. Czescel, 12 Conn. App. 558, 563, 533 A.2d 223 (1987).

Reviewing the record, we find that the trial court’s denial of the defendant’s request to make an argument regarding a line of questioning previously precluded by the court was not plain error. The defendant contends that its counsel was denied the right to state the grounds for the admissibility of evidence as to the frequency of Chemlawn trucks spilling their contents. The plaintiffs’ counsel objected, stating: “Objection, Your Honor. I really don’t think this line of questioning is getting us anywhere.” The trial court sustained the objection and, in response to the defendent’s counsel’s question: “Do I have an opportunity to make an argument, Your Honor?” the court instructed the defendant’s counsel to move on to another question. Thereafter, the court noted, for the record, the defendant’s exception to its ruling and the trial continued. The plaintiff Raymond Vincunas acknowledged the possibility of a truck spilling its contents and further testified, however, that the problem had never arisen before in connection with the securing of a building permit. After this testimony, it is understandable that the trial court considered further testimony as to the frequency of trucks spilling their contents to be objectionable.

Under these circumstances, the fact that the plaintiffs’ counsel did not artfully state the grounds of his objection or that the trial court did not permit further argument on the objection does not constitute plain error.

We similarly find that, in light of the entire proceedings, the trial court did not abuse its discretion in precluding the defendant from making an offer of proof with respect to the admission into evidence of a size-reduced copy of the plaintiffs’ site plan. The plaintiffs’ counsel claimed that they did not possess the original, and the record suggests that the contents of the reduced copy were identical to those in the original. Defense counsel’s objection to the document was based on the best evidence rule. The trial court overruled the defendant’s objection and noted the defense counsel’s exception. The court did not respond to the defendant’s request of an offer of proof, but counsel neither pressed his request regarding the offer of proof at trial, nor raised the issue in the motion to set aside the verdict. From our review, we conclude that these proceedings do not constitute plain error.

The defendant’s further claim of evidentiary error concerns the court’s admitting into evidence orders of the DEP. The defendant contends that the trial court erred because the DEP orders were hearsay and inadmissible as business records. We again note that this claim was not raised in the defendant’s motion to set aside the verdict and, consequently, our review is limited to determining whether there was plain error. Kolich v. Shugrue, supra.

We find no plain error. The essence of the DEP orders was that two companies, Dean Machine Products, Inc., and Lydall, Inc., were found to have caused pollution of groundwater in Manchester. The companies were ordered by the DEP to eliminate the discharge of industrial wastewater and to evaluate the extent and magnitude of groundwater contamination caused by past untreated discharges. The defendant contends that the documents, inadmissible as business records, were hearsay with respect to the issue of whether the defendant knew of problems with the well in the MIP. The jury, however, had other independent evidence before it from which it could reasonably have inferred that the defendant knew of the previous contamination problem. Paul Rislich of the state department of health services testified that there had been a pollution problem with the town well in the MIP and that the problem had come to the attention of public authorities. In addition, Robert Young, manager of the town of Manchester water department, testified that there had been “problems with that well with organic chemicals” and that the town officials “did not wish to have further problems.” Our review of the record reveals that, at best the DEP orders constituted cumulative evidence.

D

The defendant’s final claim of error is that the court permitted the plaintiffs’ counsel to make improper and prejudicial statements to the jury during final argument. This claim requires little discussion. The record does not reflect any objection either during or following the plaintiffs’ counsel’s final argument. The record merely reflects that the defendant’s counsel sought the attention of the court and engaged in an off-the-record discussion. The defendant did not request that the court give a curative instruction, and it never gave the court an opportunity to rule on the allegedly tainted language which it now claims was erroneously allowed. We ordinarily will not review claims of nonconstitutional dimension raised for the first time on appeal. State v. Evans, 165 Conn. 61, 69, 327 A.2d 576 (1973).

II

Finally, in their cross appeal, the plaintiffs contend that the trial court erred in granting the defendant’s motion for a directed verdict with respect to the CUTPA claim, in ruling that there was no evidence before the jury from which it could have found a nexus between the defendant’s conduct and the public interest, and in denying the plaintiffs’ motion to set aside the verdict as to the fourth count. We find this claim to be wholly without merit and decline to accept the plaintiffs’ offer to reconsider the rule precluding the retroactive application of the rule which eliminates the nexus requirement in CUTPA claims. See Rotophone, Inc. v. Danbury Hospital, 13 Conn. App. 230, 233, 535 A.2d 830 (1988); Fortini v. New England Log Homes, Inc., 4 Conn. App. 132, 137 n.1, 492 A.2d 545 (1985).

There is no error.

In this opinion the other judges concurred.

       The first count of the plaintiffs’ counterclaim was withdrawn shortly before the commencement of trial.

       The trial court instructed the jury on this issue in pertinent part as follows: “As I have said, this is an action in fraud. It becomes my duty to explain to you what the plaintiffs must prove in order to be entitled to recover damages for fraudulent representations. The essential elements are as follows: First, there must have been a representation of an existing fact. Second, the representation must have been untrue and either known by the defendant to be untrue or made without belief in its truth or in careless disregard as to whether it was true or false. . . .
      “Now, fraud involves an element of wrongdoing. If a man makes a statement of fact in the honest belief that it is so, he may be mistaken but he is obviously not guilty of any moral wrong or of a fraud. However, if he makes it when he knows it is false or if he makes it without any belief that it is true or if he makes it in disregard of its truth or falsity, he is not acting fairly and honestly toward the party with whom he is dealing and such a representation may be a basis for a recovery in fraud. I say may because the plaintiff must also prove that representation must have been made with an intent to induce the plaintiff to act upon it and did, in fact, induce the plaintiff to enter into the transaction ....
      “As regards the plaintiffs, you must find that the failure of the defendant to disclose the fact or facts actually was a substantial factor in inducing the plaintiff to enter into the transaction. . . .”

       The fifth, sixth and seventh interrogatories as to the third count of the complaint were as follows:
      “5. If so, do you also find that the plaintiffs did so act on the defendant’s representation to their injury?
      “6. Did you find the defendant’s agents or employees knew of the existence of a town well approximately 1700 feet from the subject property?
      “7. If so, do you find that the defendant’s agents or employees did not disclose to the plaintiffs the existence of the town well located approximately 1700 feet from the subject property?”

       Additionally, the defendant failed to raise this claim in its motion to set aside the verdict and we find that, in any event, there is no plain error.


author: Per Curiam.

text:
    State of Connecticut v. Rodney Collis
    (6284)
    Borden, Spallone and Foti, Js.
    Submitted on briefs April 7
    decision released April 21, 1988

      Arthur P. Meisler filed a brief for the appellant (defendant).

      Christopher Malany, deputy assistant state’s attorney, filed a brief for the appellee (state).
   Per Curiam.

The defendant has appealed his conviction, after a trial to the court, of the crime of breach of the peace in violation of General Statutes § 53a-181 (a) (l).

The defendant claims that the trial court erred in finding him guilty of the offense charged when there was no evidence produced by the state to support the allegation that he had committed the crime by engaging “in fighting or in violent, tumultuous or threatening behavior . . . .’’The state concedes error and we agree.

The only evidence produced by the state showed that the defendant drove slowly past two young women several times and may have on one occasion spoken to one of them. He also stopped the car and opened the door. Such conduct is not violative of subsection (a) (1) of the statute.

There is error, the judgment is set aside and the case is remanded with direction to render a judgment of acquittal on the charge of breach of the peace, General Statutes § 53a-181 (a) (1).

       General Statutes § 53a-181 provides in pertinent part: “(a) A person is guilty of breach of the peace when, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he: (1) Engages in fighting or in violent, tumultuous or threatening behavior in a public place . . . .”


text:
    Covenant Home, Inc. v. Board of Tax Review of the Town of Cromwell
    (5365)
    Daly, Norcott and Foti, Js.
    Argued December 10, 1987
    decision released May 17, 1988

      Richard W. Tome, for the appellant (defendant).

      Edward T. Lynch, with whom, on the brief, was Philip P. MlynarsJci, for the appellee (plaintiff).
   Norcott, J.

The dispositive issue in this appeal is whether the trial court erred in finding that the plaintiff’s housing project was being used exclusively for charitable purposes.

The defendant Cromwell board of tax review sustained the action of the town assessor in assessing certain property of the plaintiff, Covenant Home, Inc., and denied the plaintiff tax exempt status under General Statutes § 12-81 (7). The town assessor’s action covered the assessments and amounts on the Cromwell grand lists for October 1,1981, through October 1,1984. The plaintiff appealed the decision of the board of tax review to the Superior Court which sustained the appeal finding that the housing project should be granted tax exempt status because it was being used exclusively for charitable purposes. Thereafter, the defendant appealed to this court.

The defendant claims that the trial court erred (1) in finding that the plaintiff, Covenant Home, Inc., was used exclusively for charitable purposes, (2) in finding that the plaintiff was organized exclusively for charitable purposes, and (3) in finding that the plaintiff did not and could not receive any subsidy from federal, state or local government. We find error.

Covenant Home, Inc., a duly organized nonprofit Connecticut corporation, operates a semi-independent living facility, Covenant Village, designed for 199 apartments and thirty cottages and a 110 bed medical facility, Pilgrim Manor. The plaintiff provides its residents with multiple levels of care including programs and services which assist its residents medically, socially, psychologically and religiously.

The sole barrier to admission to Covenant Village is age. A person must be sixty-two years of age or older to be a resident. There are no limits on wealth or income with respect to admission. Residents pay an initial “Founder’s Fee” averaging $52,000 upon their entry to the facility. Thereafter, they pay a monthly maintenance fee which can run as high as $800. The plaintiff’s operation is partially supported by fees and payments received from the residents. The plaintiff has a sliding schedule of charges for the services it provides to residents as a means of partially funding its operations. The schedule of charges has been modified to allow less than affluent individuals to live in the facility. In the past, operating losses, when incurred, were paid for by voluntary donations, contributions and payments received from affiliated religious organizations. The plaintiff, for purposes of accounting, combines the operation and contribution accounts of both Covenant Village and Pilgrim Manor and reports the operations of both facilities as one.

The plaintiff anticipates that the income derived from the charges to its residents, gifts, donations and bequests plus funds from its religious denomination will allow it to break even. It receives no federal, state or local governmental subsidy in conjunction with its housing facility, Covenant Village.

In ruling that the plaintiff is entitled to tax exempt status pursuant to General Statutes § 12-81 (7), the trial court found (1) that “Covenant Home, Inc., is a self-supporting institution in that it operates ‘through funds derived from the gratuities of the benevolent’ ” and (2) that the residents “are cared for completely and thus [the plaintiff] makes it less likely that the residents will become burdens on society and more likely that they will become useful citizens.” See Waterbury First Church Housing, Inc. v. Brown, 170 Conn. 556, 367 A.2d 1386 (1976). The trial court concluded that the plaintiff had proved by a preponderance of the evidence that “Covenant Home, Inc., is ‘used exclusively for charitable purposes.’ ”

“ ‘It is . . . not the onus of this court to search the record and transcripts to determine whether the trier of fact could have reached a conclusion other than it did. Rather, this court must focus on the conclusion of the trial court, as well as the path by which it arrived at the conclusion, to determine whether it is legally correct and factually supported [citations omitted]. . . .’ ” United Church of Christ v. West Hartford, 9 Conn. App. 448, 459, 519 A.2d 1217 (1987), aff'd, 206 Conn. 711, 539 A.2d 523 (1988).

We find that the trial court’s conclusion was legally incorrect. The issue in the present appeal is controlled by the holding in United Church of Christ v. West Hartford, supra. We conclude that the factors by which our Supreme Court determined exclusive charitable use and purposes in United Church of Christ apply to the virtually identical factual situation of the present case.

Accordingly, the trial court, as a matter of law, erred in concluding that the plaintiff’s housing project was being used exclusively for charitable purposes. Because of the disposition of this issue, we need not address the plaintiff’s other claims of error.

. There is error, the judgment of the trial court is set aside and the case is remanded for further proceedings in accordance with this opinion.

In this opinion the other judges concurred.

       The plaintiffs appeal to the Superior Court initially challenged both the denial of the tax exempt status and the amount of the assessments. By agreement of the parties, the trial court separated the issues and ruled only on the denial of the tax exempt status.

       The trial court included in its findings of fact the following language: “[The plaintiff] generally receives a one-time ‘Founders Fee’ from its residents upon their entry to the facility.” It is clear from our review of the entire record, however, that the plaintiff did not introduce any evidence to support the conclusion that Covenant Village had forgiven or reduced the “Founders Fee” for even one person.

       In its findings of fact the trial court accepted a stipulation between the plaintiff and defendant’s first trial attorney that Covenant Village received no governmental subsidies. The record reveals, however, that the question of whether Pilgrim Manor, the records of which are combined with Covenant Village for accounting purposes, receives or is eligible for governmental subsidy remains open.


author: O’Connell, J.

text:
    In re Elieser C.

    (5936)
    Dupont, C. J., Borden and O’Connell, Js.
    Argued December 4, 1987
    decision released May 17, 1988

      Brian S. Carlow, assistant public defender, with whom, on the brief, was Ramona F. Stilley, certified legal intern, for the appellant (respondent).

      Brace A. Tonkonow, state’s advocate, for the appellee (state).

      In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 2026, the names of the-parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   O’Connell, J.

This juvenile respondent was adjudicated delinquent by virtue of being found guilty of one count of conspiracy to possess marihuana with intent to sell in violation of General Statutes §§ 53a-48 and 21a-279 (b), and one count of being an accessory to possession of marihuana with intent to sell in violation of General Statutes §§ 53a-8 and 21a-279 (b). The respondent appeals, claiming (1) that there was insufficient evidence concerning both counts to prove the respondent delinquent beyond a reasonable doubt, and (2) that the court erred in failing to admit a police officer’s report into evidence. We do not find error.

The court could reasonably have found the following facts. Two experienced narcotics police officers had a high crime area on Park Street in Hartford under surveillance. From their observation post, they saw the respondent, a twelve year old juvenile, and his father walk directly from an apartment building to an automobile. The father opened the car’s trunk and lifted up a bag containing marihuana and numerous “zip lock” plastic bags of the type used in retailing marihuana. The respondent and his father conversed with their heads down over the open bag as though they were looking into it. A search of the respondent coincident with his arrest at the scene revealed $175 cash in his pocket, in denominations associated with the sale of marihuana. It is common practice in the narcotics trade for sales to involve two individuals, one to hold the contraband and one to hold the money. This procedure is believed in the trade to impede the arrest of either person on a narcotics sale charge. The respondent’s witnesses furnished conflicting evidence regarding an implausible explanation for this twelve year old boy’s carrying $175 cash in his pocket at night in a dangerous area.

I

The first count charges conspiracy to possess marihuana with intent to sell. “To establish the crime of conspiracy under § 53a-48 of the General Statutes, the state must show [1] that there was an agreement between two or more persons to engage in conduct constituting a crime and [2] that the agreement was followed by an overt act in furtherance of the conspiracy by any one of the conspirators. The state must also show intent on the part of the accused that conduct constituting a crime be performed.” State v. Ortiz, 169 Conn. 642, 645, 363 A.2d 1091 (1975).

While the state must prove, as the first element of the crime of conspiracy, the existence of an agreement, it is not required to prove that the agreement has been formalized in any manner. “[I]t is sufficient to show that [the coconspirators] are ‘knowingly engaged in a mutual plan to do a forbidden act.’ ” Id., quoting State v. Holmes, 160 Conn. 140, 149, 274 A.2d 153 (1970). Moreover, the absence of direct evidence of such an agreement is not unusual because “conspiracies, by their very nature, are formed in secret and only rarely can be proved otherwise than by circumstantial evidence.” State v. Holmes, supra, 150. We further note that it is well settled that circumstantial evidence has the same probative force in proving the existence of an element of a crime as direct evidence. State v. Rollinson, 203 Conn. 641, 666, 526 A.2d 1283 (1987). The evidence presented in this case was sufficient to support the court’s finding that an agreement existed.

With regard to the second element of the crime of conspiracy, we conclude that in the present case only limited discussion of the overt act requirement is warranted. This element is satisfied if any party to the conspiracy, not merely the principal participant, commits an overt act in furtherance of the goals of the conspiracy. State v. Ortiz, supra. Therefore, the defendant need not be the party personally committing the act, in order to satisfy the second element of the crime. Id. In the present case, the overt act consisted of the possession of marihuana by the respondent’s father, a fact not contested by the respondent.

Finally, with regard to the third element of conspiracy, we note that proof of intent is ordinarily grounded in circumstantial, rather than direct evidence. State v. Smith, 198 Conn. 147, 154-55, 502 A.2d 874 (1985). Although we review the sufficiency of the evidence presented to the trial court, it was for the trial court to decide whether the state had proved beyond a reasonable doubt that there was an agreement to commit a crime and whether the respondent possessed the requisite intent for commission of the crime charged.

Great weight is given to the. action of the trial court and every reasonable presumption is made in favor of its correctness; the ultimate issue is whether the trial court could reasonably conclude at it did. State v. Simino, 200 Conn. 113, 116, 509 A.2d 1039 (1986); State v. Summerville, 13 Conn. App. 175, 184-85, 535 A.2d 818 (1988). Given this standard, we conclude there was sufficient evidence, together with the reasonable inferences drawn therefrom, to support the conviction of conspiracy to possess marihuana with intent to sell.

II

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

To sustain a conviction as an accessory to a crime, the state must prove “a dual intent,” that is “ ‘that the accessory have the intent to aid the principal and that in so aiding he intend to commit the offense with which he is charged.’ (Emphasis in original.)” State v. Foster, 202 Conn. 520, 525-26, 522 A.2d 277 (1987), quoting State v. Harrison, 178 Conn. 689, 694, 425 A.2d 111 (1979).

The defendant argues that this “dual intent” requirement must be construed to mean that the defendant intended personally to commit the underlying crime. We disagree. Such an interpretation would render the accessory statute nearly meaningless if the defendant did not then go on to commit the underlying crime, or if he was prevented from doing so by intervening forces beyond his control. Under the defendant’s reasoning, for example, a person who intentionally obtained and furnished a gun to a robber would not be guilty of being an accessory to robbery if he did not intend to also go forward and participate in the actual robbery. This is not the law. It would be sufficient for conviction as an accessory if the gun supplier merely knew that he was furnishing the robber with a weapon to be used in the robbery. In the applicable words of the statute, he could properly be found to be “a person who . . . intentionally aids another person to engage in conduct which constitutes an offense . . . .” General Statutes § 53a-8.

In the present case, there was sufficient evidence, together with the reasonable inferences drawn therefrom, for the trial court to find that the respondent was more than a mere inactive or passively acquiescing companion. See, e.g., State v. Maltese, 189 Conn. 337, 343-44, 455 A.2d 1343 (1983). Experienced narcotic police officers testified to the significance of the role of a moneyholder in the marihuana sales trade. The trial court was at liberty to disbelieve the witnesses’ implausible explanation for the child’s presence in a dangerous area at night, in possession of a large sum of cash in denominations typical of marihuana sales. In light of the respondent’s admitted knowledge of his father’s possession of marihuana and materials suitable for the marihuana’s sale, and in light of this court’s duty to provide every reasonable presumption of correctness to the trial court’s action, we conclude that the trial court did not abuse its discretion in evaluating the credibility of witnesses, in determining facts, and in drawing logical and reasonable inferences from those facts. “We cannot say that the inferences leading to the defendant’s convictions were illogical or unreasonable.” State v. Vincent, 194 Conn. 198, 208-209, 479 A.2d 237 (1984).

Ill

The respondent’s third claim of error is that the court “refus[ed] to admit the police report into evidence. . . .” The gravamen of this claim is that the report constituted a prior inconsistent statement which could be used to prove the matters addressed therein and to attack its author’s credibility. See State v. Whelan, 200 Conn. 743, 753, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986).

The transcript discloses that the officer’s report was admitted into evidence, marked “Respondent’s #1” and was read by the court. Accordingly, any discussion by this court of the admissibility of this statement could have only academic interest. It is established policy to refuse to entertain purely academic issues. Shays v. Local Grievance Committee, 197 Conn. 566, 571, 499 A.2d 1158 (1985).

There is no error.

In this opinion the other judges concurred.

       The arresting officers testified that money seized in connection with the sale of marihuana usually consisted of bills in five and ten dollar denominations. Conversely, money seized in connection with the sale of cocaine or heroin generally consists of higher denomination bills. The $175 confiscated from the respondent consisted of eight $10 bills, eighteen $5 bills and five $1 bills.

       We also note that the appellant appears to argue that his use of the police officer’s report was improperly restricted by the trial court. A review of the transcript indicates that the report was entered into evidence for substantive as well as impeachment purposes. See State v. Whelan, 200 Conn. 743, 753, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986).


author: Stoughton, J.

text:
    State of Connecticut v. Dana R. Tracy
    (5949)
    Dupont, C. J., Borden and Stoughton, Js.
    Argued February 10
    decision released May 17, 1988

      Michael J. Dodson, for the appellant (defendant).

      Julia DiCoccO Dewey, assistant state’s attorney, with whom, on the brief, was Patricia Swords, assistant state’s attorney, for the appellee (state).
   Stoughton, J.

The defendant appeals from a judgment of conviction, after a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70 (a).

The defendant claims that the trial court erred (1) in denying his motion for judgment of acquittal on the charge of sexual assault in the first degee, and (2) in denying his motion to present évidence of the complainant’s prior sexual conduct pursuant to General Statutes § 54-86f (2) and (4). We find no error.

The defendant moved for a judgment of acquittal at the close of the state’s case, at the close of the evidence and after the jury verdict. When the defendant challenges the sufficiency of the evidence, we must review the evidence in the light most favorable to sustaining the verdict and determine whether, upon the facts thus established and the inferences reasonably drawn therefrom, the jury could reasonably have concluded that the cumulative effect of the evidence established guilt beyond a reasonable doubt. State v. Simino, 200 Conn. 113, 116-17, 509 A.2d 1039 (1986); State v. LoSacco, 12 Conn. App. 172, 174, 529 A.2d 1348 (1987).

I

The defendant claims that the denial of his motion for judgment of acquittal was in derogation of his rights under the fourteenth amendment to the United States constitution and article first, § 8 of the Connecticut constitution. His claim is that the state failed to prove one of the elements of sexual assault in the first degree beyond a reasonable doubt and that his conviction was therefore in violation of the due process clause of the federal constitution. He has not offered any separate analysis of the claim under article first, section 8, of the Connecticut constitution. It has been held that the due process clauses of both the United States and Connecticut constitutions have the same meaning and impose similar limitations. State v. Brigandi, 186 Conn. 521, 542, 442 A.2d 927 (1982).

The first count of the amended information charged that the defendant compelled the victim to engage in fellatio by the use of force and by the threat of the use of force which caused her to fear physical injury to herself or another person. The defendant claims that the state failed to sustain its burden of proof with respect to the use of force and the threat of the use of force, essential elements of the crime charged.

General Statutes § 53a-65 (7) defines use of force as use of a dangerous instrument or use of actual physical force or violence or superior physical strength against the victim. The issue of the use of force presents a question of fact for the jury. State v. Kish, 186 Conn. 757, 766-67, 443 A.2d 1274 (1982).

Evidence was presented at the trial from which the jury might have found the following facts. The victim was a high school senior who attended a graduation party on June 14, 1986. She drank about one half of a glass of beer but did not appear to be intoxicated. During the evening, the defendant asked the victim if she wanted to accompany him to a local convenience store, and she went with the defendant in his car. He stopped the car and offered the victim a beer. When the victim resisted his advances, the defendant drove to a gasoline station to buy some cigarettes. He parked in a poorly-lit area, and when he returned to the car he began kissing the victim and, despite her resistance, partially undressed her. He put his hand under her skirt and into her pants, but desisted when the victim began to cry. The defendant drove off and the victim thought they would return to the party, but the defendant drove into an abandoned commuter parking lot. He ordered the victim not to move, and she was afraid of what he might do because she was frightened by the way he was talking and looking at her and she was afraid he might try to hurt her if she tried to get out of the car. The defendant continued fondling the victim and, as she cried and struggled, again partially undressed her. The victim’s arms were against her body which was pressed against the car door. The defendant forced the victim’s legs apart and, as she tried to restrain him, inserted his finger into her vagina and then performed cunnilingus on her. His threatening demeanor forced her to discontinue her attempts to restrain him. The defendant then compelled the victim to perform fellatio on him by pulling her head down and making her put her mouth on his penis and go up and down. He had his hands on her back and head, and every time she tried to get her head up he pushed it back down.

Sexual intercourse is defined in General Statutes § 53a-65 (2) to include fellatio, and the evidence was sufficient, if believed by the jury, for the jury to have found that the defendant compelled the victim to commit the act charged in the amended information by the use of force and by the threat of the use of force which caused her to fear physical injury to herself.

II

The defendant claims violation of his right to confront the witnesses against him which is guaranteed by the sixth amendment to the United States constitution, and applied to the States by the fourteenth amendment, and which is guaranteed also by article first, § 8, of the Connecticut constitution. This claim arises out of the exclusion by the trial court of evidence of the prior sexual history of the victim. The defendant claims that this proffered evidence was admissible under General Statutes § 54-86f (2) on the issue of the credibility of the victim and under § 54-86f (4) because it was relevant to his defense of consent.

The defendant concedes that § 54-86f, when correctly interpreted, adequately protects his right to confrontation of the victim. He contends that the proffered evidence was relevant to critical issues in this case and that exclusion of the evidence violated his right to confrontation. State v. Daniels, 8 Conn. App. 190, 192, 512 A.2d 936 (1986).

The defendant claims that the victim placed her prior sexual conduct in issue on her direct examination, a requirement under § 54-86f (2) before evidence of her sexual conduct is admissible on the issue of her credibility. The basis for this is the claim that the victim said she found the defendant attractive but rejected his advances because he had a girlfriend and she had a boyfriend. At one point, the victim testified as follows: “Well, then — he slid back over and — he started trying to hug me and kiss me, and by this time I was really upset and I told him that he’s not going to get away with anything and he’d better stop. And he said ‘What’s the matter, don’t you find me attactive?’ and I said ‘yes, I find you attractive, but please don’t do this to me.’ ” Earlier, the victim had testified as follows: “And I told him to cut it out because I had a boyfriend. And he said ‘So’ and then I said ‘Well, what about your girlfriend?’ And he didn’t make any comment.” We disagree with the claim by the defendant that this testimony by the victim was testimony as to her sexual conduct, as required under § 54-86f (2). The trial court was not in error in excluding the proffered testimony on this ground.

The defendant also claims that the proffered evidence was admissible because it was relevant to his claim that the acts committed were done with the consent of the victim. The defendant relies upon the same testimony by the victim to support this claim. He contends that because the victim found him attractive, evidence of similar conduct with other boys would render the existence of consent more probable.

The fact that the victim may have consented to sexual relations with others before does not, without more, tend to establish that consent was given on this occasion. State v. Mastropetre, 175 Conn. 512, 517, 400 A.2d 276 (1978). The trial court did not commit error in excluding the proffered evidence.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 53a-70 provides: “sexual assault in the first DEGREE: CLASS B FELONY: ONE YEAR NOT SUSPENDED, (a) A person is guilty of sexual assault in the first degree when such person compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or third person.
      “(b) Sexual assault in the first degree is a class B felony for which one year of the sentence imposed may not be suspended or reduced by the court.”
      The defendant has not attacked a conviction for unlawful restraint in the second degree.

       General Statutes § 54-86f provides: “admissibility of evidence of prior sexual conduct. In any prosecution for sexual assault under sections 53a-70a, 53a-70, and 53a-71 to 53a-73a, inclusive, no evidence of the sexual conduct of the victim may be admissible unless such evidence is (1) offered by the defendant on the issue of whether the defendant was, with respect to the victim, the source of semen, disease, pregnancy or injury, or (2) offered by the defendant on the issue of credibility of the victim, provided the victim has testified on direct examination as to his or her sexual conduct, or (3) any evidence of sexual conduct with the defendant offered by the defendant on the issue of consent by the victim, when consent is raised as a defense by the defendant, or (4) otherwise so relevant and material to a critical issue in the case that excluding it would violate the defendant’s constitutional rights. Such evidence shall be admissible only after a hearing on a motion to offer such evidence containing an offer of proof. On motion of either party the court may order such hearing held in camera, subject to the provisions of section 51-164x. If the proceeding is a trial with a jury, such hearing shall be held in the absence of the jury. If, after hearing, the court finds that the evidence meets the requirements of this section and that the probative value of the evidence outweighs its prejudicial effect on the victim, the court may grant the motion. The testimony of the defendant during a hearing on a motion to offer evidence under this section may not be used against the defendant during the trial if such motion is denied, except that such testimony may be admissible to impeach the credibility of the defendant if the defendant elects to testify as part of the defense.”