author: LANDAU, J.

text:
    TYLER’S COVE ASSOCIATION, INC. v. TOWN OF MIDDLEBURY ET AL.
    (16196)
    Landau, Schaller and Spear, Js.
    Argued December 2, 1996
    officially released March 18, 1997

      Robert W. Smith, for the appellant-appellee (defendants).

      James E. Hartley, Jr., with whom, on the brief, was Kathleen A. St. Onge, for the appellees-appellants (plaintiff).
   LANDAU, J.

The defendants appeal and the plaintiff cross appeals from the judgment of the trial court rendered in favor of the plaintiff on its complaint seeking a reduction in the amount of the assessment and tax on a parcel of real property. On appeal, the defendants claim that the trial court improperly (1) ordered a reduction in the assessed fair market value of the condominium units, (2) admitted into evidence the plaintiffs expert witness’ appraisal, and (3) found the subject parcel overvalued. On cross appeal, the plaintiff claims that the trial court improperly (1) found that the tax on the subject parcel was not manifestly excessive, (2) failed to find that the assessor failed to apportion the value of the land among the respective condominium units, and (3) found that the board and the assessor did not predetermine the assessed land value. We affirm the judgment of the trial court in part and reverse the judgment in part.

The trial court found the following facts. The plaintiff, Tyler’s Cove Association, Inc., consists of thirty-eight owners of individual cottages situated on approximately 16.5 acres of land located in the town of Middlebury. Prior to 1987, the individual unit owners did not own the land on which each unit was situated, but leased it on a year to year basis from the owner. In 1987, the unit owners formed a corporation, Tyler’s Cove, Inc., and purchased the 16.5 acre parcel of land for $1,926 million. In 1989, Tyler’s Cove, Inc., conveyed the 16.5 acres to Tyler’s Cove Association, Inc., the plaintiff in this matter. Each unit owner now owns one thirty-eighth of the common elements, which includes the land. Following the recording of the condominium declaration in 1989, the town, through the board of tax review, assessed each unit with a land assessment of approximately $18,000.

Sometime prior to October 1, 1992, the defendant Edmund Corapinski, the tax assessor of the town of Middlebury, undertook the process of revaluation of all real property in the town. The defendant town of Middlebury hired a revaluation company, Lesher-Glendinning Municipal Services, Inc., whose president is John J. Valente, to assist with the revaluation. Corapinski and Valente used the comparable sales method approach to establish the fair market value of all real estate in Middlebury, including the thirty-eight condominium units at Tyler’s Cove. In valuing the land, they used the residual value approach method, which involved subtracting the cost of the building from the fair market value; the residual value was the “condominium interest value,” which included the land value. During the Tyler’s Cove revaluation, Corapinski and Valente used field cards to gather information and to determine the fair market value. The field cards included a section for the building value and also a section for the land value, which Corapinski claimed was used solely for informational purposes. The resulting tax assessment figures were placed on the grand list as the final step in the revaluation process.

The total fair market value on the October 1, 1992 grand list, of the thirty-eight Tyler’s Cove units and the 16.5 acres on which they are located, was $4,545,600. The plaintiff appealed the October 1, 1992 grand list to the board of tax review and the board reduced the value of each unit at Tyler’s Cove by $5000. For the subsequent grand lists of October 1, 1993 and 1994, the town assessed taxes on Tyler’s Cove units in accordance with the board’s modified value. The plaintiff appealed from both grand lists, but the board refused to make any further reductions. The October 1, 1993 and October 1, 1994 grand lists are the subject of this appeal.

The plaintiff filed an appeal in the trial court pursuant to General Statutes §§ 12-117a and 12-119 from the decision of the board refusing to reduce the assessment of its property in 1993. The plaintiff amended its complaint to include the October 1, 1994 grand list. In its complaint, the plaintiff alleged in counts two and four, for 1993 and 1994 respectively, brought pursuant to § 12-117a, that it was aggrieved by the decision of the board and in counts one and three, for 1993 and 1994 respectively, brought pursuant to § 12-119, that the assessment was manifestly excessive. In the demand for relief, the plaintiff sought a reduction of the assessed values.

The trial court found for the plaintiff on counts two and four, the § 12-117a counts, and for the defendants on counts one and three, the § 12-119 counts. This appeal and cross appeal followed.

I

The defendants first claim that the trial court improperly ordered a reduction in the fair market value of the Tyler’s Cove units. We agree.

In an appeal from a board of tax review pursuant to § 12-117a, “[t]he function of the trial court is to determine the true and actual value of the plaintiffs property. Dickau v. Glastonbury, 156 Conn. 437, 441, 444, 242 A.2d 777 [1968]; Burritt Mutual Savings Bank v. New Britain, 146 Conn. 669, 673, 154 A.2d 608 [1959], . . . Executive Square Ltd. Partnership v. Board of Tax Review, 11 Conn. App. 566, 570, 528 A.2d 409 (1987).” (Internal quotation marks omitted.) Heather Lyn Ltd. Partnership v. Griswold, 38 Conn. App. 158, 164, 659 A.2d 740 (1995). The law contemplates, however, “that a wide discretion is to be accorded to assessors, and unless their action is discriminatory or so unreasonable that property is substantially overvalued and thus injustice and illegality result, their opinion and judgment should control in the determination of value for taxation purposes.” Stamford Apartments Co. v. Stamford, 203 Conn. 586, 589, 525 A.2d 1327 (1987).

In a tax appeal, the trial court hears the case de novo and makes an independent valuation of the subject property. Id., 588. “ ‘The conclusions reached by the trial court must stand unless they are legally or logically inconsistent with the facts found or unless they involve the application of some erroneous rule of law.’ ” Reynaud v. Winchester, 35 Conn. App. 269, 274, 644 A.2d 976 (1994), quoting Newbury Commons Ltd. Partnership v. Stamford, 226 Conn. 92, 100, 626 A.2d 1292 (1993) .

“In an appeal . . . from a board of tax review, the court performs a double function. The court must first determine whether the plaintiff has met his burden of establishing that he is, in fact, aggrieved by the action of the board. Only when the court finds that the action of the board will result in the payment of an unjust and, therefore, illegal tax, can the court proceed to exercise its broad discretionary power to grant such relief as is appropriate.” Gorin’s, Inc. v. Board of Tax Review, 178 Conn. 606, 608, 424 A.2d 282 (1979); Grossomanides v. Wethersfield, 33 Conn. App. 511, 515, 636 A.2d 867 (1994) .

Some additional facts are necessary for the resolution of this issue on appeal. As a result of the revaluation conducted during 1991-1992, the total value of the assessment for all thirty-eight condominiums and amenities relative thereto as valued by the town on October 1, 1993, was $4,545,600. Corapinski and Valente used regular residential field cards, which allow for 200 entries or items, as opposed to standard condominium field cards, which provide for only thirty entries or items, because the Tyler Cove units were more like individual houses or cottages than condominiums. On the field cards there are, inter alia, values entered for fair market value of the unit and the amenities, assessed value (70 percent of fair market value), building value and land value. The plaintiffs main disagreement with the revaluation is that a substantial portion of each condominium’s value is listed under the entry of “land value.” Of the thirty-eight units, the thirty lakefront units had a “land” value of $85,000 for each such unit, and the eight units that did not border the lake had a “land” value of $65,000. The plaintiff' contends that the town has valued the land on which the condominiums are located at a fair market value of $3,070,000.

The plaintiffs expert witness, Robert Nocera, conducted an appraisal of only the land on which the condominiums are situated. He testified that he could not find land in Middlebury that was approved for condominiums so he used comparable land approved for condominiums in other towns in the state. He further testified that he used land sales other than condominiums in Middlebury. Nocera concluded that the fair market value of the land was $660,000.

The plaintiff argues that the defendants failed to assess their real property as prescribed by General Statutes § 47-79 (a) of the Condominium Act of 1976. Section 47-79 (a) provides in part that “[n] either the building, the property nor any of the common areas and the facilities shall be deemed to be a parcel, but each unit shall be deemed to have an undivided interest therein and assessments against any such unit shall include such proportionate undivided interest. . . .” Corapinski and Valente testified that the “land value” entry on the field card represented the “amenity” or “condominium interest value,” which included the value of the land. They both contend, however, that the “land value” figure, calculated by using the residual value method, was solely for informational purposes. Valente further testified that he was never told to put a value on any of the land.

In its memorandum of decision, the trial court reviewed the testimony of Corapinski, Valente, and Nocera. The trial court noted that, as a result of the town’s revaluation, the assessment of the plaintiffs units increased “tremendously.” The trial court also noted, however, that, a review of eight recent sales, five between 1989 and 1992 and three after 1992, confirmed that the fair market value estimated by the town on each property was less than the sales price. The trial court found that the plaintiff had sustained its burden of proof as to counts two and four of the amended complaint, which sought reduced assessments pursuant to § 12-117a. Accordingly, the trial court ordered that the fair market value of each condominium unit be reduced by $10,000 on the October 1,1993 and October 1, 1994 grand lists.

Although the trial court concluded that the plaintiff had met its burden of proof in establishing that it was aggrieved by the action of the board, the trial court stated no basis for that conclusion. Corapinski and Valente testified that they calculated the fair market value of the units and amenities by using the comparable sales method and that they did not separately calculate the value of the land. Nocera’s appraisal was the only evidence before the trial court of the value of the land. Without making any findings with regard to the value of the land, the trial court ordered that the fair market value of each unit be reduced by $10,000. This conclusion is logically inconsistent with the facts found. The trial court did not find that the assessor had overvalued the property. The trial court did find, however, after reviewing eight contemporaneous sales, that the fair market value estimated by the town on each property was less than the sales price. The plaintiff failed to overcome this persuasive evidence. As a result, the trial court improperly exercised its broad discretionary power in granting the reduction in the units’ fair market value. See Gorin’s Inc. v. Board of Tax Review, supra, 178 Conn. 608. Therefore, the judgment must be reversed.

II

In its cross appeal, the plaintiff claims that the trial court improperly found that the tax on the subject parcel was not manifestly excessive under General Statutes § 12-119. We disagree.

“The principles that govern a complaint filed pursuant to § 12-119 are not in dispute. In contrast to § 12-117a [see footnote 2], which allows a taxpayer to challenge the assessor’s valuation of his property, § 12-119 allows a taxpayer to bring a claim that the tax was imposed by a town that had no authority to tax the subject property, or that the assessment was manifestly excessive and could not have been arrived at except by disregarding the provisions of the statutes for determining the valuation of [the real] property .... Our case law makes clear that a claim that an assessment is ‘excessive’ is not enough to support an action under this statute. Instead, § 12-119 requires an allegation that something more than mere valuation is at issue. Second Stone Ridge Cooperative Corp. v. Bridgeport, 220 Conn. 335, 339-40, 597 A.2d 326 (1991); accord Connecticut Light & Power Co. v. Oxford, 101 Conn. 383, 392, 126 A. 1 (1924).” (Internal quotation marks omitted.) Pauker v. Roig, 232 Conn. 335, 339, 654 A.2d 1233 (1995).

The first category in § 12-119 “embraces situations where a tax has been laid on a property not taxable in the municipality where it is situated.” E. Ingraham Co. v. Bristol, 146 Conn. 403, 408, 151 A.2d 700, cert. denied, 361 U.S. 929, 80 S. Ct. 367, 4 L. Ed. 2d 352 (1959). This category is not applicable to the facts of this case and, thus, will not be addressed.

“The second category consists of claims that assessments are (a) manifestly excessive and (b) . . . could not have been arrived at except by disregarding the provisions of the statutes for determining the valuation of the property. . . . E. Ingraham Co. v. Bristol, [supra, 146 Conn. 409]. Cases in this category must contain allegations beyond the mere claim that the assessor overvalued the property. [The] plaintiff . . . must satisfy the trier that [a] far more exacting test has been met: either there was misfeasance or nonfeasance by the taxing authorities, or the assessment was arbitrary or so excessive or discriminatoiy as in itself to show a disregard of duty on their part. Mead v. Greenwich, 131 Conn. 273, 275, 38 A.2d 795 (1944). Only if the plaintiff is able to meet this exacting test by establishing that the action of the assessors would result in illegality can the plaintiff prevail in an action under § 12-119. The focus of § 12-119 is whether the assessment is illegal. Cohn v. Hartford, 130 Conn. 699, 703, 37 A.2d 237 (1944) .... The statute applies only to an assessment that establishes a disregard of duty by the assessors. L. G. DeFelice & Son, Inc. v. Wethersfield, 167 Conn. 509, 513, 356 A.2d 144 (1975).” (Citations omitted; internal quotation marks omitted.) Second Stone Ridge Cooperative Corp. v. Bridgeport, supra, 220 Conn. 341-42.

The plaintiff filed an amended complaint, pursuant to § 12-119, alleging that the defendants had grossly overvalued the taxpayers’ property. The record fails to reveal any claim by the plaintiff beyond the mere allegation that the assessor overvalued the land on which the Tyler’s Cove condominiums are situated. Further, the plaintiff’s claims of misfeasance by the assessor; see part III; are unpersuasive, and no claims of nonfeasance exist. Finally, the plaintiffs claim that the assessment was arbitrary is unsupported by the record. The trial court properly concluded that the plaintiff failed to meet its burden of proof under § 12-119.

Ill

The plaintiffs final claims on cross appeal are that the trial court improperly failed to find that the assessor failed to apportion the value of the land among the condominium units and found that the board and the assessor did not predetermine the assessed land value. We address these claims in turn.

We apply the following standard of review to both claims. “The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. . . . We cannot retry the facts or pass on the credibility of the witnesses. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. . . . Crowell v. Danforth, 222 Conn. 150, 156, 609 A.2d 654 (1992); see also Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 220, 435 A.2d 24 (1980).” (Internal quotation marks omitted.) United Components, Inc. v. Wdowiak, 239 Conn. 259, 263, 684 A.2d 693 (1996).

A

The plaintiff first claims that the trial court improperly failed to find that the assessor failed to apportion the value of the land among the condominium units. The plaintiff argues that the defendants were required to apportion the value of the real property and common areas as an undivided interest among the individual condominium owners. See General Statutes § 47-79. As proof, the plaintiff notes the different values on the field cards for lakefront and nonlakefront units, as indicated under “land value” on the assessor’s field cards. The defendants argue that the “land value” calculation was solely for informational purposes and, thus, they did not violate § 47-79. Our review of the record leads us to conclude that the trial court’s factual findings are not clearly erroneous.

B

The plaintiff finally claims that the trial court improperly found that the board and the assessor did not predetermine the assessed land value. The plaintiff argues that the board assigned values to all property in Middlebury prior to the revaluation and that such action was outside the scope of its statutory powers. See General Statutes § 12-111. The defendants contend that the plaintiff failed to establish any collusion between the assessor and the board. Our review of the record does not leave us with the definite and firm conviction that a mistake has been committed. See United Components, Inc. v. Wdowiak, supra, 239 Conn. 263. We conclude that the trial court’s findings were supported by the evidence and the pleadings and, thus, were not clearly erroneous.

On the defendants’ appeal, the judgment ordering the reduction of the fair market value of the Tyler’s Cove property is reversed and the case is remanded with direction to render judgment for the defendants.

In this opinion the other judges concurred.

       As athreshold matter, we note that the plaintiff, Tyler’s Cove Association, Inc., has standing to bring an appeal on behalf of its unit owners. See Candlewood Landing Condominium Assn., Inc. v. New Milford, 44 Conn. App. 107, 111-12, 686 A.2d 1007 (1997); see also General Statutes § 47-244 (a) (4).

       General Statutes § 12-117a provides: “Notwithstanding the provisions of sections 12-118, 12-121aa and 12-121bb, any person, including any lessee of real property whose lease has been recorded as provided in section 47-19 and who is bound under the terms of his lease to pay real property taxes, claiming to be aggrieved by the action of the board of tax review in any town or city with respect to the assessment list for the assessment year commencing October 1, 1989, October 1, 1990, October 1, 1991, October 1, 1992, October 1,1993, or October 1, 1994, may, within two months from the time of such action, make application, in the nature of an appeal therefrom, to the superior court for the judicial district in which such town or city is situated, which shall be accompanied by a citation to such town or city to appear before said court. Such citation shall be signed by the same authority and such appeal shall be returnable at the same time and served and returned in the same manner as is required in case of a summons in a civil action. The authority issuing the citation shall take from the applicant a bond or recognizance to such town or city, with surety, to prosecute the application to effect and to comply with and conform to the orders and decrees of the court in the premises. Any such application shall be a preferred case, to be heard, unless good cause appears to the contrary, at the first session, by the court or by a committee appointed by the court, and the pendency of such application shall not suspend an action by such town or city to collect not more than seventy-five per cent of the tax so assessed or not more than ninety per cent of such tax with respect to any real property for which the assessed value is five hundred thousand dollars or more, and upon which such appeal is taken. If, during the pendency of such appeal, a new assessment year begins, the applicant may amend his application as to any matter therein, including an appeal for such new year, which is affected by the inception of such new year and such applicant need not appear before the board of tax review to malee such amendment effective. The court shall have power to grant such relief as to justice and equity appertains, upon such terms and in such manner and form as appear equitable, and, if the application appears to have been made without probable cause, may tax double or triple costs, as the case appears to demand; and, upon all such applications, costs may be taxed at the discretion of the court. If the assessment made by the board of tax review is reduced by said court, the applicant shall be reimbursed by the town or city for any overpayment of taxes, together with interest and costs, or, at the applicant’s option, shall be granted a tax credit for such overpayment, interest and costs. Upon motion, said court shall, in event of such overpayment, enter judgment in favor of such applicant and against such city or town for the whole amount of such overpayment, together with interest and costs. The amount to which the assessment is so reduced shall be the assessed value of such property on the grand lists for succeeding years until the tax assessor finds that the value of the applicant’s property has increased or decreased.”

       See footnote 8.

       Following the revaluation and grand list of October 1, 1992, the plaintiff association appealed to the board of tax review pursuant to General Statutes § 12-111. The board found that the plaintiff had been aggrieved by the assessment to some extent and reduced the value of each unit at Tyler’s Cove by $5,000 or, in other words, reduced the total value of the units and amenities thereto by $190,000.

       Prior to the board’s $5000 reduction in 1992, these values had been $90,000 and $70,000 respectively. See footnote 4.

       General Statutes § 47-68a et seq.

       As a result of the foregoing, we do not reach the defendants’ second claim that the trial court improperly admitted into evidence the appraisal of the plaintiffs expert witness and their third claim that the trial court improperly found the subject parcel overvalued.

       General Statutes § 12-119 provides: “When it is claimed that a tax has been laid on property not taxable in the town or city in whose tax list such property was set, or that a tax laid on property was computed on an assessment which, under all the circumstances, was manifestly excessive and could not have been arrived at except by disregarding the provisions of the statutes for determining the valuation of such property, the owner thereof or any lessee thereof whose lease has been recorded as provided in section 47-19 and who is bound under the terms of his lease to pay real property taxes, prior to the payment of such tax, may, in addition to the other remedies provided by law, make application for relief to the superior court for the judicial district in which such town or city is situated. Such application may be made within one year from the date as of which the property was last evaluated for purposes of taxation and shall be served and returned in the same manner as is required in the case of a summons in a civil action, and the pendency of such application shall not suspend action upon the tax against the applicant. In all such actions, the Superior Court shall have power to grant such relief upon such terms and in such manner and form as to justice and equity appertains, and costs may be taxed at the discretion of the court. If such assessment is reduced by said court, the applicant shall be reimbursed by the town or city for any overpayment of taxes in accordance with the judgment of said court.”

       The plaintiff alleged in counts one and three of its complaint, for the October 1, 1993 and October 1, 1994 grand lists respectively, violations of General Statutes § 12-119.


source: Caselaw Access Project

author: DUPONT, C. J.

license: Public Domain

text:
    FLEET CREDIT CORPORATION v. DONALD F. MILLER, COMMISSIONER OF REVENUE SERVICES PRODUCTO MACHINE COMPANY ET AL. v. DONALD F. MILLER, COMMISSIONER OF REVENUE SERVICES
    (15515)
    (15516)
    (15517)
    Dupont, C. J., and Schaller and Daly, Js.

      Argued November 12, 1996
    officially released March 18, 1997

      Richard K. Greenberg, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellant (defendant).

      Donald E. Frechette, for the appellee (plaintiff Fleet Credit Corporation).

      Jeremy Mellitz, for the appellees (plaintiff Producto Machine Company et al.).
   DUPONT, C. J.

This appeal involves three consolidated cases. Two of the cases are actions brought by Fleet Credit Corporation (Fleet) against the defendant commissioner of revenue services (commissioner) and involve the taxable years 1992 and 1993. The third case is an action brought by Producto Machine Company (Producto) against the commissioner and involves the taxable year 1993. All the suits seek refunds of the interest paid by the plaintiffs on amounts calculated by the commissioner to be due because of alleged underpayments of estimated corporate tax. Fleet and Producto filed separate motions for summary judgments with accompanying affidavits. The commissioner filed a cross motion for summary judgment in each case. The trial court found that there were no genuine issues of material fact and rendered judgments in all three cases for the plaintiffs as a matter of law. We affirm the judgments of the trial court.

General Statutes (Rev. to 1995) § 12-242b requires corporate plaintiffs such as Fleet and Producto to make quarterly declarations of their estimated Connecticut corporation business (income) taxes. The issues in Fleet I and the Producto case involve the corporate estimates of income and the accuracy of the estimates relative to the actual tax liability of Fleet and Producto for the taxable years in question.

The relevant facts of Fleet I are those that follow. Fleet declared its quarterly estimates for the taxable year 1992 in March, June, September and December of 1992, as required by § 12-242b. In the first quarter, Fleet estimated that its yearly taxable income would be $4,955,768, and, therefore, determined that its tax liability for the year would be $657,905. According to General Statutes § 12-242c, Fleet needed to pay 30 percent of this estimated tax liability by March 15, 1992. Fleet paid $200,000, a sum in excess of 30 percent of its estimated tax liability. In the second quarter, Fleet amended its estimate of yearly taxable income in anticipation of an increase in taxable income to $51,966,945. This amendment increased Fleet’s tax liability for 1992 to $6,604,819. Fleet paid 70 percent of this estimated tax liability by June 15, 1992. In the third quarter, Fleet amended its estimate of taxable yearly income again, with an estimate of $53,657,691. By doing so, Fleet increased its tax liability for 1992 to $6,818,948. In order to comply with the statute, therefore, Fleet was required to pay, and did pay, 80 percent of its estimated taxes, $755,158, by September 15, 1992. In the fourth quarter, Fleet’s final amended estimate of its taxable yearly income rose to $117,837,484, creating a tax liability of $13,789,685. According to the statute, therefore, Fleet needed to pay 100 percent of its estimated tax liability by December 15, 1992, which Fleet paid with its last declaration of estimated income for 1992. The trial court found that Fleet’s declarations of estimated tax liability for each quarter were reasonably made when filed on the basis of information available at that time, and that payments of the estimated tax as declared were made at the time of filing.

At issue is Fleet’s fourth quarter income, and its effect on Fleet’s quarterly estimates of its taxable income for the entire year of 1992. In the fourth quarter, Fleet, on the advice of the Fleet Financial Group, began selling treasury bonds. These sales generated about $82 million in taxable income, which substantially increased the total taxable income that Fleet had previously declared in its quarterly returns as its estimates for the year. The trial court found the profits from the bond sales to be “unanticipated—and unanticipatable—monetary windfalls

In February, 1994, the commissioner claimed that, because Fleet’s first, second and third quarterly estimates of corporate income for 1992 did not reflect the income eventually generated by the sale of the treasury bonds in the fourth quarter, Fleet had underpaid its 1992 taxes. The commissioner stated that Fleet’s quarterly estimated payments should have reflected the gains realized from the sale of the treasury bonds, even though that gain was not realized at the time the first three quarterly returns were filed and the tax due on the estimated yearly income was paid. As a result, the commissioner found that Fleet owed interest pursuant to General Statutes § 12-242d on what he characterized as underpayments of Fleet’s 1992 taxes. The commissioner levied on the refund that Fleet expected from its calculated overpayment of 1992 taxes. Fleet had applied that overpayment to its 1993 taxes. Fleet claimed that the commissioner’s assessment of interest was improper because the fourth quarter income was unanticipated at the time the quarterly declarations of estimated income were made. The ensuing dispute became Fleet I.

Fleet’s second action against the commissioner (Fleet IF) involves its 1993 taxes. Fleet, anticipating a refund from its 1992 tax payments, had applied the refund as a set off against its 1993 tax liability estimates and resulting quarterly installment payments. Due to the commissioner’s levy on the 1992 refund based on his finding that Fleet owed interest because of its underpayment of taxes for the first three quarters of 1992, Fleet did not receive a credit for the refund. The commissioner claims that even if we conclude he could not assess interest for underpayment of the 1992 taxes, we should reverse the judgment in Fleet II because Fleet underpaid its 1993 taxes. The commissioner, therefore, claims that Fleet improperly credited itself with an anticipated refund of an overpayment of its 1992 taxes against its first installment of estimated taxes for 1993, thereby underpaying its 1993 taxes.

Producto’s case is similar to that of Fleet I because it also deals with underestimated tax liability due to income that the trial court found was unforeseen at the time Producto filed its quarterly estimates of tax due. Producto is a corporation that owns two subsidiaries, Moore Tool Company, Inc., and Moore Land Company, Inc. Unlike Fleet, which has a calendar year for accounting purposes, Producto has a fiscal tax year that ends on March 31. On December 28,1993, Moore Land Company purchased Moore Special Tool Company, an unrelated entity. At the time of the purchase, Producto had, on December 15, 1993, already filed its declaration of estimated tax return for the third quarter.

Producto filed a combined corporate return for the taxable year ending March 31, 1994. It paid its taxes every quarter in the year 1993-1994, based on its estimates of yearly income in the percentages required by the statute. Its payment in the fourth quarter reflected the income generated from the acquisition of Moore Special Tool Company. The commissioner claimed that Producto had not paid the requisite amount of its taxes with each quarterly declaration filed, taking into account the fourth quarter income generated by the acquisition, and charged Producto interest pursuant to § 12-242d. Producto and the commissioner entered into a stipulation of facts in which the commissioner agreed that the acquisition was not anticipated at any time prior to the fourth quarter and that Producto could not have reasonably predicted the income ultimately realized.

The commissioner raises two claims on appeal. His first claim, which relates to both Fleet and Producto, is that the trial court improperly ordered him to refund the interest on the alleged underpayments. His second claim, made in Fleet II, is that Fleet should not have been able to use the anticipated tax refund from 1992 toward payment of its 1993 taxes. The commissioner makes no claim that the estimates of yearly income by either Fleet or Producto for the first three quarters of the relevant years did not reflect the amount of income reasonably to be expected at the time each quarterly payment and declaration of estimated income were made.

The dispositive issue is whether a corporation’s quarterly payments based on its estimates of taxes due are underpaid if the quarterly estimates of income reflect the yearly income reasonably anticipated at the time of the filings but do not reflect the actual income realized by the end of the year. The commissioner’s position is that interest was due whether or not the income eventually realized was reasonably anticipated at the time a quarterly declaration of estimated tax was due.

The position of Fleet and Producto is that, if there has been compliance with § 12-242c, any issue as to the proper interpretation of § 12-242d, which relates to interest due on unpaid instalments, is never reached. The commissioner’s position is that § 12-242d allows him to collect interest even if the taxpayer has complied with § 12-242c. In other words, the commissioner claims that when the situation at the end of the taxable year makes it clear what amount is 90 percent of the actual tax for the year1, he may retroactively review each installment paid and determine whether 30 percent of that amount was paid in the first quarter, whether 70 percent was paid in the second quarter, and whether 80 percent of that amount was paid in the third quarter. It, thus, would make no difference, in the commissioner’s view, whether the income eventually realized could or could not have been anticipated reasonably at the time each quarterly declaration was made.

The issue raised by Fleet I and Producto is one of first impression. Whether the commissioner can assess interest on quarterly estimates for the entire year because of income not reasonably anticipated during the year and not realized until the fourth quarter, however, is not likely to recur often due to the repeal of §§ 12-242a, 12-242b and 12-242c and the amendment of § 12-242d by No. 95-327 of the 1995 Public Acts.

The interpretation by the commissioner of §§ 12-242a through 12-242d requires application of the principles of statutory interpretation. “[I]t is axiomatic that the process of statutory interpretation involves a reasoned search for the intention of the legislature. ... In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Internal quotation marks omitted.) Stratford v. State Board of Mediation & Arbitration, 239 Conn. 32, 40-41, 681 A.2d 281 (1996). “In order to determine the meaning of a statute, we must consider the statute as a whole when reconciling its separate parts in order to render a reasonable overall interpretation.” (Internal quotation marks omitted.) Angelsea Productions, Inc. v. Commission on Human Rights & Opportunities, 236 Conn. 681, 689, 674 A.2d 1300 (1996).

Section 12-242b (a) clearly states that it is the taxpayer’s responsibility to make declarations of estimated tax each quarter. The definition of estimated tax in § 12-242a (c) is “the amount of money a company elects to state pursuant to subsection (b) of § 12-242b in the declaration required by subsection (a) of said section.” (Emphasis added.) The dictionary definition of “elect” is to choose or select. Merriam-Webster’s Collegiate Dictionary (10th Ed. 1993). Use of the term “elects” indicates an intention by the legislature to allow a corporate taxpayer some degree of discretion in determining what is a reasonable estimate. Section 12-242b (a) (1), in describing the necessity of making a declaration of estimated tax, uses the words “the tax required to be paid . . . can reasonably be expected . . . .”

Section 12-242b (b) provides that “[t]he estimated tax stated in the declaration shall be the amount of money, reduced by one thousand dollars, which the company estimates will equal the total tax which will be required to be paid by it for such income year.” (Emphasis added.) The commissioner is reading this section as though the words “which the company estimates” were absent and as though the words were “the total tax required” instead of “the total tax which will be required to be paid . . . .” The plain meaning of § 12~242b (b) is that the estimated tax stated in the declaration is the amount of money that the company estimates will equal the total tax that will be required to be paid by it. An estimate is defined as “a tentative evaluation or rough calculation; a judgment based on one’s impressions; an opinion.” American Heritage Dictionary (2d College Ed. 1982). An estimate is a rational prediction, not an exact figure as the commissioner argues it should be.

Section 12-242d, entitled “Interest on unpaid instalments” provides that “every company . . . which has not, as provided in section 12-242c, made payments on account of the tax for such income year . . . shall . . . pay to the commissioner interest . . . .” Unless, therefore, § 12-242c has not been satisfied, § 12-242d is not called into play. Both Fleet and Producto complied with § 12-242c. That section requires payments of estimated tax as stated in the declarations as required by § 12-242b. After considering the statute as a whole, we conclude that the trial court’s interpretation is reasonable.

We conclude that any ambiguity of § 12-242d need not be resolved because that section is never reached if the corporate taxpayer has made reasonable estimates pursuant to the preceding sections. In other words, the only way that a corporate taxpayer can fall within the purview of § 12-242d is if it makes an unreasonable estimate or if it did not pay the requisite percentages set forth in § 12-242c. The commissioner has not alleged that Fleet or Producto did either of those things. The words of the statutes themselves, therefore, indicate that the legislature intended that if a corporation makes a reasonable estimate of anticipated income as of the time of filing its declaration of estimated tax and pays the requisite percentage of tax due, no interest under § 12-242d can be due. When the plain words of the statute evince the intent of the legislature, we need not look to its legislative history. See Rivera v. Allstate Ins. Co., 44 Conn. App. 47, 51, 686 A.2d 530 (1996).

On the basis of our statutory interpretation of §§ 12-242a through 12-242c, we conclude that the commissioner should not have required either Fleet or Producto to pay any interest for the years in question.

We turn now to the commissioner’s argument that we should reverse the judgment in Fleet II because Fleet improperly took a credit against its first estimated tax payment in 1993 in an amount equal to a refund Fleet expected from its 1992 taxes, based on a preliminary tax return that Fleet had filed with a request for extension of time to file the final tax return. We have already determined that the commissioner should not have applied Fleet’s overpayment of its 1992 taxes to the interest assessment. The commissioner additionally argues that Fleet violated General Statutes § 12-242g because the credit it took was its estimated overpayment, rather than its actual overpayment.

The argument that Fleet failed to comply with § 12-242c in 1993 because its first payment was reduced by the amount of the anticipated refund was not raised before the trial court until after judgment had been rendered against the commissioner on his claim in Fleet II. The trial court did not address this issue in any additional memorandum of decision, and the commissioner took no steps to have the trial court articulate its reasoning with regard to the issue. An examination of the transcript of the commissioner’s attempt to raise the issue reveals that the trial court viewed this argument as a new theory, not raised by the commissioner in its cross motion for summary judgment or in its opposition to Fleet’s motion for summary judgment.

Judgment had already been rendered holding that Fleet had not violated § 12-242c in 1993. “A motion to open and vacate a judgment ... is addressed to the [trial] court’s discretion and will not be disturbed . . . unless it acted unreasonably and in clear abuse of its discretion.” Cislo v. Shelton, 40 Conn. App. 705, 714, 673 A.2d 134, cert. granted on other grounds, 237 Conn. 924, 677 A.2d 946 (1996). On this record, we cannot say that the trial court abused its discretion in failing to rule in the commissioner’s favor on this claim. We do not reach the merits of the commissioner’s claim, made after judgment, that Fleet failed to comply with § 12-242g when it reduced its first quarterly tax payment for 1993 by the amount it anticipated would be a refund.

The judgments are affirmed.

In this opinion the other judges concurred.

       Fleet’s actions involving 1992 and 1993 are referred to as Fleet I and Fleet II, respectively.

       Two wholly owned corporate subsidiaries of Producto were also named as plaintiffs.

       This case involves the taxable years 1992 and 1993. Section 12-242b was repealed by No. 95-327 of the 1995 Public Acts. Section 12-242b (a) as it existed in the years in question provided: “With respect to each income year w'hich begins on or after January 1, 1987, every company subject to taxation under part I of [chapter 208] shall make a declaration of estimated tax either if (1) the tax required to be paid by it for such income year can reasonably be expected to exceed one thousand dollars, or (2) the tax, if any, required to be paid by it for the next preceding income year exceeded one thousand dollars.”

         General Statutes § 12-242c was repealed by No. 95-327 of the 1995 Public Acts. During the taxable years in question § 12-242c provided: “Every company filing a declaration with respect to an income year as required by section 12-242b shall make payment to the commissioner of installments on account of the estimated tax stated therein as at the time last amended, as follows: (1) On or before the fifteenth day of the third month of said income year, an amount equal to thirty per cent of said estimated tax, (2) on or before the fifteenth day of the sixth month of said income year, an amount equal, together with all prior payments on account of said estimated tax, to seventy per cent of said estimated tax, (3) on or before the fifteenth day of the ninth month of said income year, an amount equal, together with all prior payments on account of said estimated tax, to eighty per cent of said estimated tax, and (4) on or before the fifteenth day of the twelfth month of said income year, an amount equal, together with all prior payments on account of said estimated tax, to one hundred per cent of said estimated tax.”

       General Statutes § 12-242d was amended by No. 95-327 of the 1995 Public Acts. During the taxable years in question, that statute provided in relevant part: “(a) In addition to the taxes provided for by part I of this chapter with respect to any income year which begins on or after January 1, 1982, every company, subject to taxation under said part which has not, as provided in section 12-242c, made payments on account of the tax for such income year, (1) on or before the fifteenth day of the third month of the income year, of an instalment at least equaling the lesser of (A) thirty per cent of such tax for such income year or (B) sixty per cent of the assumed tax, as defined in subsection (d) of this section, with respect to such income year, (2) on or before the fifteenth day of the sixth month of the income year, of an instalment at least equaling seventy per cent of the tax for such income year, (3) on or before the fifteenth day of the ninth month of the income year of an instalment at least equaling eighty per cent of such tax for such income year and (4) on or before the fifteenth day of the twelfth month of the income year, of an instalment at least equaling one hundred per cent of the tax for such income year, shall on or before the due date for filing the final return for such income year prescribed in section 12-222 pay to the commissioner interest on the part of any such instalment not so paid, at the rate of one and one-fourth per cent per month or fraction thereof from the aforementioned date relating to the instalment to the date of payment. Any such instalment payment shall be determined on the basis of an estimated tax which is not less than ninety per cent of the tax determined to be due for such income year; provided any credit that may otherwise be taken pursuant to section 12-217t shall be disregarded in determining the tax to be due for all filings, except a filing made in accordance with section 12-222 and provided further any credit that may otherwise be taken under section 12-217n shall be disregarded in determining the tax to be due for any income year commencing before January 1, 1997.”

       At oral argument, the commissioner stated that no determination was ever made as to whether the additional Fleet income could have been reasonably predicted or whether the estimates were made in good faith. At the time the summary judgment motions were considered by the trial court, however, no factual issues were raised as to these matters. For purposes of this appeal, we take it as undisputed that both Fleet and Producto made reasonable declarations of taxable income, in good faith, at the time the declarations were made. We are, thus, not concerned with an interpretation of “reasonably” as used in § 12-242b (a), which provides in relevant part: “With respect to each income year which begins on or after January 1,1987, every company subject to taxation under part I of this chapter shall make a declaration of estimated tax either if (1) the tax required to be paid by it for such income year can reasonably be expected to exceed one thousand dollars (Emphasis added.) We note that the statute imposes a standard of reasonableness when describing estimates. We also note that the motions for summary judgment of both Fleet and Producto and of the commissioner were based on the fact that neither Fleet nor Producto could reasonably have anticipated the actual fourth quarter income at the time their first three quarterly tax returns were filed. We are not dealing, therefore, with a corporation that has attempted to avoid payment of taxes by not making a reasonable quarterly estimate of tax due.

       Fleo! and Producto further argue that if § 12-242d can be applied in this case it is unconstitutional because it violates the due process clause of the fourteenth amendment of the United States constitution. We need not reach this question because of our conclusion that, in this case, § 12-242c governs the outcome. We note that the trial court did not reach any issues relating to constitutionality.

       Section 12-242d has been amended by No. 95-327 of the 1995 Public Acts so that by the year 2000, no interest will be due if a corporation pays its quarterly taxes based on 90 percent of actual income for the year or based on 100 percent of the taxes paid in the preceding year. Such a “safe harbor” statute means that if the requisite payments are made, they are free from challenge and free from the payment of interest, no matter what circumstances surround the estimates because the statute is now based on a calculation capable of mathematical certainty.
      The legislature, in enacting the amendment, was concerned with the possibility of an unfair or punitive application of § 12-242d. “The existing law, unlike corresponding federal provisions does not contain any safe harbors by which a taxpayer can, with certainty, compute its estimated tax obligations and avoid Connecticut, additional interest. ... So this is the first time, at least in my memory, that we are taking a shot at trying to bring Connecticut corporate and insurance premium tax laws a safe harbor concept.” 38 H.R. Proe., Pt. 20,1995 Sess., pp. 7249, 7251, remarks of Representative Carl Schiessl.

       General Statutes § 12-242g provides in relevant part: “If a company has paid as an instalment of estimated tax an amount in excess of the amount determined to be the correct amount of such instalment, such amount shall be credited against any unpaid instalment or against the tax. If the amount already paid, whether or not on the basis of instalments, exceeds the amount determined to be ihe correct amount, of the tax, the company shall be paid by the State Treasurer, upon order of the Comptroller, the amount of such overpayment. . .


author: SPEAR, J.

text:
    RICHARD D. LAUER ET AL. v. ZONING COMMISSION OF THE TOWN OF REDDING ET AL.
    (15206)
    (15226)
    Foti, Landau and Spear, Js.
    Argued December 11, 1996
    officially released March 25, 1997

      Michael N. LaVelle, for the appellant (named defendant).

      Helen L. McGonigle, for the appellants (defendant Luciano Angeloni et al.).

      Nancy Burton, for the appellees (plaintiffs).
   SPEAR, J.

In this consolidated appeal, the defendants Luciano Angeloni and Debra Angeloni, owners of certain real property in the town of Redding, and the defendant Redding zoning commission (commission) filed separate appeals from the judgment of the trial court, sustaining the plaintiff Richard Lauer’s appeal from the granting of the Angelonis’ request to amend a special permit. The Angelonis claim, as a threshold issue, that the judgment of the trial court was rendered beyond the 120 day period set by statute and, as a result, should be vacated. The Angelonis and the commission both claim that the trial court improperly construed as mandatory § 5.1.2 of the Redding zoning regulations, which required the commission to submit the special permit application to three town agencies. We reverse the judgment.

The record reveals the following facts. The Angelonis obtained a special permit in 1989 to operate a riding academy in a residential zone in Redding. The 1989 permit allowed the owners to board a maximum of twenty-five horses at the academy. On October 23, 1991, the owners applied to the commission to amend the special permit, seeking, inter alia, to increase the number of horses from twenty-five to forty. The commission granted the special permit on January 22,1992. The plaintiff appealed to the Superior Court from the granting of the special permit. On April 3, 1995, 119 days after the trial was completed, the trial court issued the following order: “The administrative appeal is sustained. A memorandum will follow.” On April 10, 1995, the owners moved to set aside the order and for a mistrial, asserting that no judgment was rendered within the 120 day period set forth in General Statutes § 51-183b. The trial court did not rule on the motion, but, instead, issued its memorandum of decision 143 days after the completion of the trial. The trial court sustained the appeal because it found that the commission had failed to follow what the trial court deemed to be the mandatory requirement of § 5.1.2 of the Redding zoning regulations. These appeals followed.

I

As a threshold issue, the Angelonis claim that the trial court improperly failed to set aside the April 3 order and to declare a mistrial for noncompliance with the 120 day rule contained in § 51-183b. We agree.

Section 51-183b provides that a judge “shall render judgment not later than one hundred and twenty days from the completion date of the trial of such civil cause. . . .” Practice Book § 334A (a) provides in pertinent part that “in judgments in trials to the court in civil . . . matters . . . the court shall, either orally or in writing, state its decision on the issues in the matter. The court shall include in its decision its conclusion as to each claim of law raised by the parties and the factual basis therefor. . . .”

“[T]he defect in a late judgment is that it implicates the trial court’s power to continue to exercise jurisdiction over the parties before it. Whitaker v. Cannon Mills Co., 132 Conn. 434, 438, 45 A.2d 120 (1945); Foley v. George A. Douglas & Bro., Inc., 121 Conn. 377, 380, 185 A. 70 (1936).” Waterman v. United Caribbean, Inc., 215 Conn. 688, 692, 577 A.2d 1047 (1990). “Even after the expiration of the time period within which a judge has the power to render a valid, binding judgment, a court continues to have jurisdiction over the parties until and unless they object.” Id. A late judgment is not necessarily void, but it is voidable. Id., 692-93. Parties to an action can waive the statutory time limits either by conduct or consent. Id., 692; see also Hurlbult v. Hatheway, 139 Conn. 258, 263, 93 A.2d 161 (1952). Where the parties do not waive the provisions of § 51-183b, the trial court loses jurisdiction over the parties after the passage of 120 days. Sanchez v. Prestia, 29 Conn. App. 157, 161, 612 A.2d 824, cert. denied 224 Conn. 913, 617 A.2d 167 (1992). Unless the parties waive their rights or consent to a late judgment, a delay in a decision beyond the 120 day period requires a new trial. Frank v. Streeter, 192 Conn. 601, 603, 472 A.2d 1281 (1984).

In this case, the trial court issued an order sustaining the appeal 119 days after trial was completed, but did not issue its memorandum of decision until 143 days after trial. The trial court did not obtain a waiver of the 120 day period from the parties involved in this appeal, nor did the owners expressly or impliedly waive their rights.

We conclude that the order issued 119 days after trial was not in compliance with § 51-183b. First, the order was not in the form required by Practice Book § 334A. It did not state facts or conclusions of law, but contained only two statements: (1) that the appeal was sustained, and (2) that a memorandum of decision would follow at a later date. Moreover, appellate rights, especially requests for certification in zoning cases, would be adversely affected if an order, such as the one issued in this case, were deemed the judgment. A party would be unable to cite claims for appeal or state why certification should be granted if the memorandum of decision is filed beyond the time for filing an appeal or petition for certification. Even if the memorandum is filed after 120 days, but before the time to appeal or request certification has expired, the parties would have been deprived of the benefit of the full time period allowed under the rules. Absent a waiver of the statutory time period, a timely and proper objection to a late judgment implicates the court’s jurisdiction over the parties. Accordingly, we reverse the trial court’s judgment.

II

The Angelonis and the commission claim that the trial court improperly concluded that the disputed portion of § 5.1.2 of the Redding zoning regulations was mandatory rather than directory. We address this legal issue because it has been briefed and argued by the parties and should not become an issue on retrial.

Section 5.1.2 of the Redding zoning regulations provides in pertinent part: “Application materials may be submitted to the Zoning office or to a regularly scheduled meeting of the Commission. . . . One copy of the application, including all maps, plans and reports, shall be referred within 10 days of receipt, by the Commission, to the following Town agencies with a request for an advisory report: Board of Selectmen, Conservation Commission, Health Department, Planning Commission.” (Emphasis added.)

In general, the word “shall” is mandatory, not directory. Langan v. Weeks, 37 Conn. App. 105, 121, 655 A.2d 771 (1995). Use of the word “shall,” however, does not always indicate that a clause is mandatory. Id. The determination must focus on “whether the prescribed mode of action is the essence of the thing to be accomplished, or in other words, whether it relates to a matter of substance or a matter of convenience. . . . If it is a matter of substance, the [regulatory] provision is mandatory. . . .If, however, the . . . provision is designed to secure order, system and dispatch ... it is generally held to be directory, especially where the requirement is stated in affirmative terms unaccompanied by negative words. . . . Such a [regulatory] provision is one which prescribes what shall be done but does not invalidate action upon a failure to comply.” (Citations omitted; internal quotation marks omitted.) Fidelity Trust Co. v. BVD Associates, 196 Conn. 270, 278, 492 A.2d 180 (1985). Where the regulation contains no penalty for noncompliance, or where the language purports to establish procedure, it is deemed to be directory. Langan v. Weeks, supra, 122.

We conclude that § 5.1.2 is directory in nature, rather than mandatory. First, this regulation is found in the “Procedure” section of the zoning regulations. See, e.g., Arrieu v. Litchfield, 17 Conn. App. 320, 324, 552 A.2d 445 (1989). Second, the regulation does not contain language to invalidate actions that are not in compliance. Finally, § 5.1.2 sets forth a manner in which the zoning board seeks advisory opinions from town agencies and is designed merely to secure order, system and dispatch.

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

In this opinion the other judges concurred.

       Richard Lauer owns property across a town road from the Angelonis’ riding academy. Janice Pomazi joined Richard Lauer in his appeal to tire Superior Court. The trial court found, however, that Pomazi lacked standing to appeal the granting of the permit because she did not have a specific personal and legal interest in the matter. She is not a party to this appeal. We refer in this opinion to Lauer as the plaintiff.

       The issuance of the 1989 permit was upheld in Lauer v. Zoning Covnmission, 220 Conn. 455, 600 A.2d 310 (1991).

       General Statutes § 51-183b provides: “Any judge of the Superior Court and any judge trial referee who has the power to render judgment, who has commenced the trial of any civil cause, shall have power to continue such trial and shall render judgment not later than one hundred and twenty days from the completion date of the trial of such civil cause. The parties may waive the provisions of this section.”

       We are mindful of the demands on the trial court, however, the procedure used here was inappropriate.

       Practice Book § 4009 (a) provides in pertinent part: “Except where a different time is provided by statute, a party shall have twenty days from the commencement of the appeal period. . . . [T]he appeal period shall commence on the date notice of the judgment or decision is given. . . .” Practice Book § 4142 provides that a party shall have twenty days from the time notice of the trial court’s decision is issued to file a petition for certification. Section 4142.1 provides in pertinent part: “(a) A petition for certification shall contain the following sections in the order indicated here:
      “(1) A statement of the questions presented for review, expressed in the terms and circumstances of the case but without unnecessary detail.
      “(2) A statement of the basis for certification identifying the specific reasons why the appellate court should allow the extraordinary relief of certification. ...”


author: FOTI, J.

text:
    STATE OF CONNECTICUT v. MARK D. BOUIER
    (15917)
    Foti, Lavery and Daly, Js.
    Argued January 23
    officially released March 25, 1997

      Alice M. Sexton, with whom, on the brief, was Jon L. Schoenhom, for the appellant (defendant).

      Lawrence J. Tytla, senior assistant state’s attorney, with whom, on the brief, was Kevin T. Kane, state’s attorney, for the appellee (state).
   FOTI, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70. The defendant claims that the trial court improperly instructed the jury (1) by failing to instruct on compulsion, an essential element of the crime, (2) by shifting the burden to the defendant to prove consent and (3) on the use of force and the threat of the use of force. We affirm the judgment.

From the evidence presented, the jury reasonably could have found the following facts. On January 20, 1995, the victim, an eighteen year old woman, was attending a family party at the Ground Round Restaurant in Groton. At approximately 11 p.m., she met a friend at that location and together they left in the friend’s car to travel to the home of the victim’s boyfriend in Groton. After finding no one at home, they proceeded to the victim’s home, where she changed clothes. They then proceeded to a nightclub on the Navy submarine base in Groton, arriving at approximately 11:45 p.m. They socialized and drank some alcoholic beverages before leaving at approximately 2 a.m. The victim’s friend had had too much to drink and arranged for a ride with another friend, Vernon Leftridge, who had been at the club. Because they planned to stop to eat, the victim decided not to go with them. At that time, the defendant drove up and, after a brief conversation, stated that he was going in the victim’s direction and would give her a ride. Neither the victim nor her friend had ever seen the defendant before that evening. When the defendant made his offer, the victim looked at Leftridge, who nodded. The victim interpreted Leftridge’s gesture to be a sign of his approval. She accepted the defendant’s offer to give her a ride home.

After the victim entered the defendant’s automobile and told him where she lived, he responded that he would take her directly home. En route, they observed Leftridge’s car parked at a convenience store. The defendant stopped and talked to Leftridge, while the victim spoke separately with her friend. After a few minutes, the defendant and the victim left, and the defendant drove through a nearby Navy housing complex to see if a friend was at home.

The defendant then drove toward the victim’s home, but instead of stopping, he drove by her house. She told him to stop and that she wanted to get out, but he kept driving until they reached Eastern Point Beach. The victim repeatedly told the defendant that she wanted to go home, but he parked the car and began to rub her thigh. She told him to stop, that she had a boyfriend and that she wanted to go home. He continued to rub her thigh, saying, “Just give me a little piece of this. All I want is a little bit. It’s only going to take two minutes” and “give me a little pussy.” She repeatedly pushed him away, saying she wanted to go home. The defendant finally said “forget it” and drove away from the beach. He did not, however, drive toward the victim’s home. The victim grabbed the steering wheel and tried to jerk it. The defendant became very angry and told her not to do that again. He then drove to New London. At one point, when he stopped his vehicle, the victim exited and began walking. The defendant drove along beside her and told her to get back in the car. As they were in a dark, wooded area, the victim got back into the car, asking the defendant to drive her home and offering to pay him to do so. She also asked to use his car phone, but he refused to let her use it. He then drove toward Waterford and pulled into the driveway of a closed auto parts business, which was hidden from the road by a fence. She exited the car to urinate, and, upon returning to the car, was again approached by the defendant, who began to nib her and unbutton her pants. He asked for “a little bit of this” as he touched her. She responded that she was a virgin and that she did not want to be with him, but he kept pushing closer, pulling her pants down. He pushed her seat down, moved on top of her and made her place her legs around him. She repeatedly slid her legs off, saying, “Get off. This isn’t what I wanted to do.” As she tried to get away from him, he stated in a very forceful and commanding voice, “This is going to happen.” He digitally penetrated her vagina, and then penetrated her with his penis, telling her that it would be easier if she relaxed. She told him that he was hurting her, but he told her to keep her legs up and to “stay there, stay there.” Eventually he rolled off her and stated, “You’re lucky I didn’t beat you like another man would have.” He told her to get dressed and then drove her directly home without saying a word to her. She arrived home between 4 and 4:30 a.m.

I

The defendant first claims that the trial court improperly failed to instruct the jury that compulsion was a necessary element of the crime of sexual assault in the first degree, in violation of his due process rights under the fourteenth amendment to the United States constitution, and article first, § 8 of the Connecticut constitution. The defendant cannot prevail on his claim.

The defendant failed to preserve this claim at trial and seeks review pursuant to State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). Under Golding, “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) Id., 239-40. We are free to dispose of the claim “by focusing on whichever condition is most relevant in the particular circumstances.” Id., 240. In this case, we conclude that the defendant has failed to satisfy the third condition of Golding.

The state concedes, and we agree, that the first two prongs of Golding are satisfied. “An accused has a fundamental right, protected by the due process clauses of the federal and Connecticut constitutions, to be acquitted unless proven guilty of each element of the charged offense beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Williams, 202 Conn. 349, 363, 521 A.2d 150 (1987). It is well established that improper jury instructions on an essential element of the crime implicate a fundamental constitutional right. State v. Cooper, 38 Conn. App. 661, 666, 664 A.2d 773, cert. denied, 235 Conn. 908, 665 A.2d 903 (1995). The due process clause prescribes that the defendant has a right to require the fact finder to determine each element of an offense charged beyond a reasonable doubt. Sullivan v. Louisiana, 508 U.S. 275, 278, 113 S. Ct. 2078, 124 L. Ed. 2d 182 (1993); State v. Guthridge, 164 Conn. 145, 152-53, 318 A.2d 87 (1972), cert. denied, 410 U.S. 988, 93 S. Ct. 1519, 36 L. Ed. 2d 186 (1973).

We must, however, consider whether the defendant has met his burden as to the third requirement of Golding-, i.e., whether the alleged constitutional violation clearly exists and, if so, whether it clearly has deprived the defendant of a fair trial. Because the defendant raises a constitutional challenge to the trial court’s instruction, we must review the jury charge as a whole to determine whether it is reasonably possible that the jury was misled. State v. Lemoine, 39 Conn. App. 657, 666 A.2d 825 (1995).

Our review of the charge in its entirety indicates that the trial court’s instructions were a correct statement of the law. In its charge, the court informed the juiy of the elements of the crime, including compulsion. Accordingly, we conclude that the alleged constitutional violation does not clearly exist, and, therefore, that the defendant’s claim fails to satisfy the third prong of Golding.

II

The defendant next claims that, rather than requiring the state to prove lack of consent beyond a reasonable doubt, the trial court’s instruction improperly shifted to him the burden to prove that the victim had consented to have intercourse. The defendant maintains that because the instruction was inadequate in regard to the element of compulsion, coupled with the implication that in order to acquit him the jury had to find that the victim had consented, the instruction unconstitutionally shifted to him the burden to prove that the victim had consented. We do not agree.

This claim was not properly preserved at trial and the defendant again seeks review pursuant to Golding. Our review of the charge in its entirety discloses that the trial court properly and thoroughly instructed the jury on the presumption of innocence and on the state’s burden of proving each element of the crime beyond a reasonable doubt. Contrary to the defendant’s assertion, the court did not instruct that the only way the jury could acquit him was if it found that the victim had consented, but rather, that if it were to find that the victim had consented to the acts that constituted the basis for the charge, then it must acquit him. Furthermore, as discussed in part I, the instruction on compulsion was not inadequate. Because the alleged constitutional violation does not clearly exist, the third prong of Golding is not satisfied.

III

The defendant next asserts that there was insufficient evidence on which the jury could reasonably find him guilty beyond a reasonable doubt. Although the defendant neither objected to the court’s instruction, nor moved for a judgment of acquittal, he maintains that even if it is assumed arguendo that there was sufficient evidence on the issue of force, there was insufficient evidence of the threat of the use of force. He claims that the trial court improperly allowed the jury to consider that theory of culpability, i.e., the threat of use of force, in violation of his due process rights pursuant to article first, § 8, of the Connecticut constitution. We conclude that the evidence was sufficient to establish a basis for the jury to have found the threat of the use of force.

While we agree that the use of force itself implies the threat of the use of further force to accomplish the sought after objective, the record before us satisfies us that the jury had before it evidence from which it could reasonably have found the threat of force. The defendant’s statement to the victim before the act was completed, “This is going to happen,” and the manner in which it was said, could reasonably have caused the victim to regard it as a threat of physical injury. Moreover, from our review of the evidence detailed previously, we conclude that the jury could properly have found beyond a reasonable doubt that the victim’s words and actions could not reasonably be viewed to show her consent to intercourse with the defendant. The evidence, therefore, was more than sufficient to support the verdict; the jury reasonably could have found that the defendant threatened the use of force in order to compel the victim to engage in sexual intercourse.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-70 (a) provides: “A person is guilty ol' sexual assault in the first degree when such person (1) 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 a third person, or (2) engages in sexual intercourse with another person and such other person is under thirteen years of age and the actor is more than two years older than such person, or (3) commits sexual assault in the second degree as provided in section 53a-71 and in the commission of such offense is aided by two or more other persons actually present.”

       Whereas the first two conditions of Golding are determinations of whether a defendant’s claim will be reviewed, the third prong constitutes a limited review of the merits. See Wilson v. Cohen, 222 Conn. 591, 603, 610 A.2d 1177 (1992).

       As it is relevant to this claim, the court’s instruction was as follows: “The defendant here is charged with the crime of sexual assault in the first degree. Our statute defining this crime reads as follows: ‘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 by the threat of use of force against such other person which reasonably causes such person to fear physical injury to herself.’
      “In order to commit the crime of sexual assault in the first degree, the state must prove beyond a reasonable doubt (1) that sexual intercourse had 1aken place and (2) the defendant compelled [the victim] to engage in such sexual intercourse by the use of force or by the threat of use of force. . . . If you should find that sexual intercourse had occurred you must next determine whether the defendant used force or the threat of force. Use of force means either the use of a dangerous instrument, or use of actual physical force or violence or superior physical strength against [the victim]. Thus, if you find that the state has proved beyond a reasonable doubt that sexual intercourse occurred, and, two, that it occurred because of the defendant’s use of force or threatened use of force, then if both of those elements have been proven to you by proof beyond a reasonable doubt, your verdict must be guilty. On the other hand, if either point has not been proven to you by proof beyond a reasonable doubt, you must find the defendant not guilty.
      “The defendant in this case has presented evidence or claims that [the victim] and the state—that the acts which [the victim] and the state have charged were done with her consent. A jury cannot convict the defendant of the crime charged if the conduct of [the victim] was such that the defendant had a justified reasonable belief that she had consented. Any act that is engaged in consensually would necessarily not be an act engaged in under compulsion of the use of force or the threat of force. If you were to find that [the victim] had consented to the acts which are the basis for the charge here, then your verdict must be not guilty.”

       The defendant acknowledged that sexual intercourse with the victim occurred, but claimed it was a consensual act.

       The trial court instructed by the use of the disjunctive, i.e., “use of force or threat of use of force,” and “use of force or threatened use of force.”

       Article first, § 8, of the Connecticut constitution provides: “In all criminal prosecutions, the accused shall have a right to be heard by himself and by counsel; to be informed of the nature and cause of the accusation; to be confronted by the witnesses against him; to have compulsory process to obtain witnesses in his behalf; to be released on bail upon sufficient security, except in capital offenses, where the proof is evident or the presumption great; and in all prosecutions by indictment or information, to a speedy, public trial by an impartial jury. No person shall be compelled to give evidence against himself, nor be deprived of life, liberty or property without due process of law, nor shall excessive bail be required nor excessive fines imposed. No person shall be held to answer for any crime, punishable by death or life imprisonment, unless on a presentment or an indictment of a grand jury, except in the armed forces, or in the militia when in actual service in time of war or public danger.”

       Because we conclude as we do, we find it unnecessary to determine whether State v. Chapman, 229 Conn. 529, 643 A.2d 1213 (1994), controls, or whether, as the defendant claims, article first, § 8, of the Connecticut constitution should be construed as providing greater protection than afforded under its federal counterpart.


author: LAVER Y, J.

text:
    FEDERAL DEPOSIT INSURANCE CORPORATION v. JOHN J. KEATING ET AL.
    (15262)
    Lavery, Schaller and Hennessy, Js.
    Submitted on briefs January 29
    officially released March 25, 1997

      Richard P. Weinstein, Kerry M. Wisser, PeterB.Rustin, Gail P. Ferris and John L. Laudaii filed a brief for the appellants (defendants).

      Alexander Aponte filed a brief for the appellee (plaintiff).
   LAVER Y, J.

The defendants appeal from the judgment rendered for the plaintiff after a hearing in damages. The defendants claim that the trial court improperly granted judgment in favor of the plaintiff where there was no admissible evidence as to the principal amount of the debt, the rate of interest or the rate and reasonableness of substituted interest, and the amount of interest claimed. We reverse the judgment and remand the case to the trial court for further proceedings.

The trial court could have reasonably found the following facts. On October 2, 1987, the defendants, John T. Keating and Neal J. Landerman, executed a demand note in the amount of $250,000 payable to the order of Landmark Bank. The terms of the note provided that the defendants were to pay interest on the unpaid balance monthly, commencing November 1, 1987, until the note was paid off or demand was made on the note.

On January 9, 1990, the defendants executed another demand note in the amount of $50,000 payable from Keating Landerman Enterprises to the order of Landmark Bank. This note provided for the payment of principal and interest on demand.

Both notes called for an interest rate of 1.5 percent over the base rate of Landmark Bank. The notes also authorized the bank to change the interest rate on the loans as the base rate changed. The notes stated that the base rate was “the rate we usually quote to our most responsible and credit worthy customers. ...”

On March 28, 1991, Landmark Bank was declared insolvent and the plaintiff, the Federal Deposit Insurance Corporation (FDIC), was appointed as receiver. On December 2, 1993, the FDIC brought an action against the defendants for collection on both demand notes.

On October 12,1994, the trial court granted summary judgment for the FDIC as to liability only. On September 13, 1995, after a hearing in damages was held, the trial court awarded the FDIC $428,331.56 plus costs.

The defendants contend that the trial court improperly found for the FDIC because no admissible evidence was presented in regard to the amount of the outstanding debt and the computation and reasonableness of the interest. We agree.

This court recently addressed this issue in Central Bank v. Colonial Romanelli Associates, 38 Conn. App. 575, 662 A.2d 157 (1995). In Central Bank, the FDIC, which was appointed the receiver for a failed bank, brought a collection action against the makers of a promissory note. In that case, just as in the present case, the sole witness for the FDIC was an FDIC credit specialist. In Central Bank, the FDIC attempted to introduce evidence of the debt through Ralph Edwards, one of its credit specialists. The court stated: “Edwards based his testimony on Central’s and FDIC’s computer records. He had no personal knowledge of the reliability of the computer system but merely accessed it and used the information obtained therefrom. The computer records were not admitted into evidence. Because Edwards was not responsible for entering the data in the computer and had no opinion concerning the accuracy of the records or how they were created, his testimony lacked a proper foundation and should not have been admitted. State v. Barnes, 232 Conn. 740, 747, 657 A.2d 611 (1995); see 1 C. McCormick, Evidence (4th Ed. 1992) § 10, pp. 37-40.

“Moreover, because Edwards was not testifying from his personal knowledge, his testimony was hearsay and should not have been admitted. Hearsay is defined as a statement made out-oi-court that is offered to establish the truth of the facts contained in the statement. State v. Jaynes, 35 Conn. App. 541, 548, 645 A.2d 1060, cert. denied, 231 Conn. 928, 648 A.2d 880 (1995). Edwards was testifying from computer records created and controlled by others. Because the computer records were not in evidence, testimony about their contents, by a witness without personal knowledge of the contents, is hearsay. Bell Food Services, Inc. v. Sherbacow, 217 Conn. 476, 488-89, 586 A.2d 1157 (1991).

“Because the contents of the computer records were at issue, the records themselves were the best evidence of the amount of the debt and the interest calculation. Accordingly, they should have been admitted into evidence before Edwards was permitted to testify concerning their contents. See Coelm v. Imperato, 23 Conn. App. 146, 150, 579 A.2d 573, cert. denied, 216 Conn. 823, 581 A.2d 1054 (1990). Without the admission of the records into evidence, Edward’s testimony, as to their content, was hearsay and should not have been admitted.” Central Bank v. Colonial Romanelli Associates, supra, 38 Conn. App. 579-80.

The facts of the present case are similar to the facts of Central Bank. In the present case, the only witness for the FDIC at the hearing in damages was James Golden, an FDIC credit specialist. Golden was assigned to this case in March, 1995, by the FDIC. Golden testified as to the amount of principal and interest that the FDIC believed was due on the notes through an affidavit of debt. Golden, however, did not provide any substantiation or testimony as to the basis for the FDIC’s calculation of the principal amount of the debt and the interest rate used. Golden’s testimony concerning the principal amount of the debt and computation of the interest was based solely on computer records that were not admitted into evidence. Golden also stated that he was not the individual who had entered the data concerning the amount of the debt into the FDIC computer. In addition, Golden admitted to not having personal knowledge of the pertinent facts concerning the demand notes. Therefore, on the basis of on our holding in Central Bank v. Colonial Romanelli Associates, supra, 38 Conn. App. 580, we conclude that this witness’ testimony concerning the amount of the outstanding debt should not have been admitted.

The trial court also awarded interest on the alleged debt without having before it any evidence as to what interest rate the FDIC used to calculate the debt and whether that rate was reasonable. “When a variable interest rate is based on the rate of a failed institution, the trial court must determine whether the substitute rate is reasonable by examining the documents and testimony offered by the [FDIC].” Id., 578.

In the present case, the trial court stated that the FDIC substituted the prime rate as published in the Wall Street Journal for the Landmark base rate. Golden testified, however, that he did not know the substituted rate of interest that had been used by the FDIC in regard to the two notes in this case. Furthermore, no evidence was presented concerning the reasonableness of the rate used by the FDIC. There was no basis in the evidence for the trial court’s findings. See id.

The judgment is reversed and the case is remanded for a new hearing in damages.

In this opinion the other judges concurred.

       The $428,331.56 is comprised of the principal on both of the notes ($250,000 and $50,000), interest ($104,804.82 and $19,389.74) and attorney’s fees ($4137). The court also awarded $405.80 in costs.