text:
    STATE OF CONNECTICUT v. MICHAEL MARSALA
    (15040)
    O’Connell, Foti and Spear, Js.

      Argued November 14, 1996
    officially released January 14, 1997

      Jonathan Demirjian, assistant public defender, for the appellant (defendant).

      Christopher T. Godialis, deputy assistant state’s attorney, with whom were Jennifer Rollberg, legal intern, and, on the brief, Donald A. Browne, state’s attorney, and Joseph T. Corradino, assistant state’s attorney, for the appellee (state).
   SPEAR, J.

The defendant appeals from the judgments of conviction, rendered after a jury trial, of five counts of stalking in the second degree in violation of General Statutes § 53a-181d. On appeal, he claims that the trial court improperly (1) allowed the state to amend the information on the day jury selection commenced, (2) denied the defendant’s motion in limine to limit the cross-examination of the defendant, (3) allowed the state’s cross-examination of the defendant to exceed the scope of the direct examination, (4) struck the defendant’s entire testimony when he refused to answer certain questions after the court ordered him to do so, (5) denied his motion to dismiss that alleged that the evidence was insufficient to sustain his convictions, and (6) denied his motion to dismiss based on a claim that § 53a-181d is unconstitutionally vague on its face and as applied to him. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The defendant met the victim, Tamara Behan, in 1992, when he gave her a ride home one night. The defendant then began stopping by Tamara’s apartment uninvited. On a number of occasions, he parked his car in front of her house in the early morning for long periods of time. This conduct continued until late June, 1993, when Tamara was imprisoned at Niantic Correctional Center. While Tamara was incarcerated, the defendant repeatedly sent her letters that frightened her. Tamara did not contact the defendant or respond to his written communications.

On March 30,1994, Tamara was transferred to Magdalene House, a residential drug rehabilitation facility on North Avenue in Bridgeport. House rules required that visitors be approved by staff, and visitation was allowed only at specified times. Two hours after Tamara first arrived at Magdalene House, the defendant entered, uninvited and without knocking, to look for Tamara. Upon seeing the defendant, Tamara covered her face with her hands and yelled for staff assistance. She was shocked and nervous. Despite being asked to leave, the defendant remained, insisting that he see Tamara. After approximately ten minutes, the defendant left the house, but remained in the immediate area outside. He stood across the street from Magdalene House for approximately one hour.

The defendant reappeared on North Avenue in the area outside Magdalene House on several more occasions. On one occasion, he approached Tamara, insulted her, and told her that “these games have just begun” and that she “wasn’t going to get him out of [her] life.” On a number of other occasions, the defendant stood outside of Magdalene House for long periods of time and twice set up lawn chairs on the sidewalk. Once, he sent a female companion to knock on the door of Magdalene House.

From April 1 to June 28, 1994, the defendant made numerous harassing telephone calls to Jane Behan, Tamara’s mother.4 Tamara was the subject of each call, and the defendant made it clear that he did not intend to cease contact with Tamara. On April 5,1994, Tamara and Jane Behan retained an attorney to represent them because they felt the situation with the defendant was getting out of hand. Their attorney contacted the defendant and ordered that he cease and desist all contact with both Tamara and Jane Behan.

The relevant procedural history is as follows. The defendant was arrested on two separate occasions, April 25 and June 28, 1994. He was held in custody in lieu of bond from June 28, 1994, until March 14, 1995, the date his trial began. On March 14, 1994, the state filed an amended information that charged five additional counts of stalking arising from the incidents on April 1, April 7, May 30, June 14 and June 17, 1994. The defendant was convicted of counts three through seven and was sentenced to a five year term of incarceration. This appeal followed.

I

The defendant first claims that the trial court abused its discretion by allowing the state to amend the information on the day that the trial began. He claims that the trial court’s failure to strike the amended information prejudiced his substantive rights. We disagree.

“Before the commencement of a criminal trial, [Practice Book] § 623 controls the alteration of charges brought against a criminal defendant.” State v. Nixon, 32 Conn. App. 224, 229, 630 A.2d 74, aff'd, 231 Conn. 545, 651 A.2d 1264 (1995). “[A] prosecutor has broad authority to amend an information [before trial commences]. Once the trial has started, however, the prosecutor is constrained by the provisions of Practice Book § 624. ” (Internal quotation marks omitted.) State v. Snead, 41 Conn. App. 584, 590, 677 A.2d 446 (1996). “It is clear that for proposes of Practice Book §§ 623 and 624, a criminal trial begins with the voir dire of the prospective jurors.” Id. In the present case, the state filed the amended information before voir dire began, thus § 623 applies. Section 623 provides: “If the trial has not commenced, the prosecuting authority may amend the information, or add additional counts, or file a substitute information. Upon motion of the defendant, the judicial authority, in his discretion, may strike the amendment or added counts or substitute information, if the trial or the cause would be unduly delayed or the substantive rights of the defendant would be prejudiced.”

In determining whether the defendant’s rights were prejudiced, this court considers “the totality of the circumstances in deciding whether the defendant was surprised by the changes and whether the defense was hampered.” State v. Mazzetta, 21 Conn. App. 431, 439, 574 A.2d 806, cert. denied, 216 Conn. 807, 580 A.2d 64 (1990). A “bare assertion of prejudice is not sufficient” to support a claim of prejudice. Id., 438. “The defendant must provide a specific showing of prejudice in order to establish that he was denied the right of due process of law . . . .” State v. Ramos, 176 Conn. 275, 279-80, 407 A.2d 952 (1978). The defendant asserts that his ability to present his defense was hampered because, by adding five new counts on the eve of trial, the state deprived him of the opportunity to investigate the new charges adequately and to find potential witnesses. The defendant, however, did not request a continuance to investigate the additional charges further, and he makes this claim for the first time on appeal. See State v. Ramos, supra, 279. The defendant also argues that “[i]t seems that the state’s motivation in filing the amendment was retaliatory and/or to force the defendant to request a continuance.” The defendant, however, has failed to make a showing of any actual or specific prejudice. The state turned over the police reports detailing the five additional charges early in the prosecution. Furthermore, the defendant’s trial strategy was not dependent on a factual investigation. His sole defense at trial was that the charged conduct, nearly all of which he admitted at trial, did not constitute stalking. We conclude that the defendant has failed to establish that his defense was prejudiced by the addition of the new counts on the eve of trial.

II

The defendant next claims that the trial court improperly failed to grant his motion in limine to preclude the state, on cross-examination, from questioning the defendant about the telephone calls made to Jane Behan. We disagree.

After he declared his intention to testify, the defendant made an oral motion to preclude this line of inquiry because the telephone calls were related to pending criminal charges. The defendant, however, “cannot reasonably claim that the Fifth Amendment gives him not only [the choice not to testify,] but, if he elects to testify, an immunity from cross-examination on the matters he has himself put in dispute.” Brown v. United States, 356 U.S. 148, 155-56, 78 S. Ct. 622, 2 L. Ed. 2d 822 (1958). “A defendant may decide not to take the witness stand because of the risk of cross-examination. But this is a choice of litigation tactics.” (Internal quotation marks omitted.) State v. Harrell, 199 Conn. 255, 264, 506 A.2d 1041 (1986). In denying the defendant’s motion in limine, the trial court recognized that “[w]hile an accused has the right not to take the witness stand, if he does take the stand and testifies in his own behalf, he may be cross-examined and impeached as any other witness. Brown v. United States, [supra, 154-55].” State v. Schroff, 198 Conn. 405, 412, 503 A.2d 167 (1986).

“It is well established that [t]he trial court has broad discretion in ruling on the admissibility ... of evidence.” (Internal quotation marks omitted.) State v. Kiser, 43 Conn. App. 339, 361, 683 A.2d 1021 (1996). “The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion.” (Internal quotation marks omitted.) Id. In the present case, the trial court denied the defendant’s motion in limine because it chose to rule on the admissibility of evidence on a question by question basis and did not want to preclude the state from relevant lines of inquiry on cross-examination. We conclude that the defendant has not demonstrated that the trial court abused its discretion in denying his motion in limine.

Ill

The defendant next claims that the trial court improperly allowed the state’s cross-examination of the defendant to exceed the scope of his direct examination by allowing the state to question him regarding the telephone calls made to Jane Behan. This claim is without merit.

The defendant testified on his own behalf. During cross-examination, the state inquired about a telephone conversation between the defendant and Jane Behan. He asserts that, because he did not refer to the telephone calls on direct, any reference to them on cross-examination was outside the scope of the direct examination. “It is well settled that our rule restricts cross-examination to matters covered in the direct examination, except as they involve credibility alone. ... A question is within the scope of the direct examination if it is designed to rebut, impeach, modify, or explain any of the defendant’s direct testimony.” (Citations omitted; internal quotation marks omitted.) State v. Sharpe, 195 Conn. 651, 657, 491 A.2d 345 (1985). “While proper cross-examination must be related to the subject matter of direct examination . . . the trial court is allowed a liberal discretion in fixing its limits.” (Internal quotation marks omitted.) State v. Schroff, supra, 198 Conn. 412. Where a court allows the cross-examination at trial, such as here, “it must be determined if there was an abuse of discretion. It goes without saying that the term abuse of discretion does not imply a bad motive or wrong purpose but merely means that the ruling appears to have been made on untenable grounds. . . . In determining whether there has been an abuse of discretion, much depends upon the circumstances of each case.” (Citations omitted; internal quotation marks omitted.) Id., 413.

In this case, the defendant, on direct examination, claimed that he visited the area surrounding Magdalene House because he was concerned for Tamara’s safety. He further testified that he did not stalk or threaten Tamara. Through his direct testimony, the defendant put his intent in issue, and, as such, inquiry into the telephone calls was permissible. Considering the totality of the circumstances, we conclude that the trial court did not abuse its discretion in allowing the state to cross-examine the defendant regarding the telephone calls made to Jane Behan.

IV

The defendant next claims that the trial court improperly ordered him to answer, on cross-examination, questions regarding the telephone calls made to Jane Behan, and then struck his entire testimony when he refused to answer. We are unpersuaded.

“The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion.” (Internal quotation marks omitted.) State v. Kiser, supra, 43 Conn. App. 361. The defendant correctly asserts that “[t]he extreme sanction of striking the testimony of a witness should be resorted to only where the invocation of the privilege blocks inquiry into matters directly relating to the crime charged and not those which are merely collateral .... State v. Valeriano, 191 Conn. 659, 666-67, 468 A.2d 936 (1983), cert. denied, 466 U.S. 974, 104 S. Ct. 2351, 80 L. Ed. 2d 824 (1984) . . . .” (Citation omitted; internal quotation marks omitted.) State v. Paredes, 35 Conn. App. 360, 366, 646 A.2d 234, cert. denied, 231 Conn. 925, 648 A.2d 166 (1994). He then argues that the questions regarding the telephone calls were collateral, and, as a result, the court improperly struck the defendant’s testimony. As we have previously concluded, however, the state’s cross-examination was directly related to intent, which the defendant placed in issue during his direct testimony. As such, the matter of the telephone calls was not collateral. Furthermore, the court advised the defendant before he testified that if he was ordered to respond and then refused, the court would consider striking his testimony as a remedy. The court properly struck the defendant’s testimony when he refused to respond to the state’s cross-examination.

V

The defendant next claims that the evidence was insufficient to sustain his conviction. We conclude otherwise.

Our courts apply a two-prong test when reviewing a sufficiency of evidence claim. “First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Sivri, 231 Conn. 115, 126, 646 A.2d 169 (1994). “Our inquiry into whether the evidence in the record would support a finding of guilt beyond a reasonable doubt does not require us to ask if we believe that the evidence established guilt beyond a reasonable doubt, but rather if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. . . . State v. Boykin, 27 Conn. App. 558, 563-64, 609 A.2d 242, cert. denied, 223 Conn. 905, 610 A.2d 179 (1992). Once a defendant has been found guilty of the crime charged, we conduct our judicial review of all of the evidence in the light most favorable to the prosecution. Id., 564. . . . State v. Hamilton, 30 Conn. App. 68, 71-72, 618 A.2d 1372 (1993), aff'd, 228 Conn. 234, 636 A.2d 760 (1994).” (Internal quotation marks omitted.) State v. Crump, 43 Conn. App. 252, 256, 683 A.2d 402 (1996).

A

The defendant first asserts that the state failed to adduce evidence that he intended to cause Tamara to fear for her physical safety because he did not make verbal threats or harassing gestures. This claim is without merit.

“[T]he question of intent is purely a question of fact. . . . The state of mind of one accused of a crime is often the most significant and, at the same time, the most elusive element of the crime charged. . . . Intent may be and usually is inferred from conduct .... [WJhether such an inference should be drawn is properly a question for the jury to decide.” (Citations omitted; internal quotation marks omitted.) State v. Torwich, 38 Conn. App. 306, 314, 661 A.2d 113, cert. denied, 235 Conn. 905, 665 A.2d 906 (1995).

Section 53a-181d requires proof of the defendant’s intent to cause another person to fear for her physical safety. State v. Culmo, 43 Conn. Sup. 46, 61, 642 A.2d 90 (1993). Proof of verbal threats or harassing gestures is not essential to prove a violation of § 53a-181d. The stalking statute was enacted to “address the situation where the criminal does not physically take an act against the person or does not verbally make a direct an[d] immediate threat of harm,” but merely stalks the victim. 35 H.R. Proc., Pt. 9,1992 Sess., p. 2968, remarks of Representative Thomas Luby; State v. Culmo, supra, 52. The statute “can be violated without a defendant’s uttering a syllable, writing a word, or making a gesture.” State v. Culmo, supra 74.

The state offered into evidence the letters that the defendant sent to Tamara while she was incarcerated. The jury also heard evidence that the defendant told Tamara “these games have just begun, [and she] wasn’t going to get him out of [her] life.” The jury could have properly concluded, from the evidence adduced at trial, that the defendant intended to cause Tamara to fear for her physical safety.

B

The defendant also claims that the state failed to adduce evidence that Tamara reasonably feared for her safety on April 25, 1994. We disagree.

The defendant asserts that because Tamara’s testimony regarding the April 25,1994 incident was inconsistent, he must prevail on this claim. Evidence is not insufficient, however, because it is conflicting or inconsistent. “[T]he [jury] is free to juxtapose conflicting versions of events and determine which is more credible. . . . It is the [jury’s] exclusive province to weigh the conflicting evidence and to determine the credibility of witnesses. . . . The [jury] can . . . decide what— all, none, or some—of a witness’ testimony to accept or reject.” (Citations omitted.) State v. Martin, 38 Conn. App. 731, 744, 663 A.2d 1078 (1995), cert. denied, 237 Conn. 921, 676 A.2d 1376 (1996). Because the jury was entitled to credit Tamara’s direct testimony, we conclude that there was sufficient evidence that she reasonably feared for her safety.

C

The defendant claims that there was insufficient evidence that he “followed” Tamara. This claim is subsumed in our resolution of the defendant’s final claim in part VI, infra.

VI

The defendant finally claims that the stalking statute, General Statutes § 53a-181d, is unconstitutionallyvague and overbroad on its face and as applied to him. We disagree.

In a well reasoned decision, Judge Lavine decided that the stalking statute at issue here was not facially void for vagueness and overbreadth. We adopt the holding and reasoning set forth in State v. Culmo, supra, 43 Conn. Sup. 67: “[O]n consideration of [§ 53a-181d] in its entirety, it cannot be said that a person of common understanding would fail to understand what conduct is prohibited. Section 53a-181d is relatively narrow in scope. It applies only to those who act with the specific intention of causing others to fear for their physical safety. The fear for one’s physical safety must be reasonable. The conduct must be undertaken wilfully, not mistakenly, and it must occur repeatedly. The statute on its face does not implicate speech or expression in any way; it criminalizes conduct only, when undertaken with the requisite intent. The court concludes that any ambiguities in the statute’s language are not so significant as to render it void for vagueness.”

Furthermore, § 53a-181d is not overbroad. Before the defendant can raise an overbreadth claim, he must first establish that there is a “realistic danger that the statute will significantly compromise recognized First Amendment protections of parties not before the Court . . . .” (Internal quotation marks omitted.) State v. Proto, 203 Conn. 682, 707, 526 A.2d 1297 (1987). “[T]he defendant must bear the burden of demonstrating that the first amendment even applies because to hold otherwise would be to create a rule that all conduct is presumptively expressive. ... In undertaking this threshold analysis, courts have relied heavily on the distinction between statutes that regulate conduct, and statutes that regulate expression.” (Citations omitted; internal quotation marks omitted.) State v. Culmo, supra, 43 Conn. Sup. 73. The defendant’s overbreadth challenge must fail because “§ 53a-181d does not, on its face, implicate recognized first amendment rights.” Id., 75.

The defendant also claims that the stalking statute is unconstitutionally vague as applied to him. The defendant admits having deliberately maintained visual and physical proximity to Tamara on numerous occasions. He argues, however, that because his conduct occurred on a public sidewalk, and because he and Tamara were not on all occasions simultaneously outside Magdalene House, the statute is unconstitutionally vague as applied to him. We adopt the definition of “following” set forth in State v. Culmo, supra, 43 Conn. Sup. 63: “Of course, ‘following’ implies proximity in space as well as time. Whether someone has deliberately maintained sufficient visual or physical proximity with another person, uninterrupted, over a substantial enough period of time to constitute ‘following’ will depend upon a variety of differing factors in each case. These are appropriate issues for the trier of fact to decide, not this court.” Because the state adduced evidence that the defendant maintained uninterrupted visual and physical proximity with Tamara for substantial periods of time, we conclude that the statute is not vague as applied to him.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-181d (a) provides: “A person is guilty of stalking in the second degree when, with intent to cause another person to fear for his physical safety, he wilfully and repeatedly follows or lies in wait for such other person and causes such other person to reasonably fear for his physical safety.”

       In State v. Marsala, 43 Conn. App. 527, 684 A.2d 1199 (1996), the victim in this case is referred to as Tamra.

       One of the letters read as follows: “I didn’t do anything to hurt you until you hurt me and it still took me a long time to hurt back. But like you and your mother always say that was your choice, bad choice, because I make a lot better friend than I do enemy. As you could see, don’t take me wrong, I do not think of you as my enemy but you do think of me as yours, so I have to protect myself and I will not start anything but I will strike back if you hurt me and you, yourself, know how really dangerous I am.”

       The defendant was seen outside Magdalene House on March 31, April 1 (count one of information), April 3, April 4, April 7 (count two), April 10, April 25 (count three), May 30 (count four), June 14 (count five), June 17 (count six) and June 28 (count seven), 1994. He was acquitted on the first two counts, but convicted on the remaining five.

       The telephone calls were the subject of a separate criminal prosecution. At the time of this trial, the defendant was charged with twenty-seven counts of harassment in the second degree in violation of § 53a-183 and was awaiting trial. The victim of the harassment charges was Tamara’s mother, Jane Behan. The defendant was convicted of twenty-five of the twenty-seven counts. We recently affirmed these convictions in State v. Marsala, 43 Conn. App. 527, 684 A.2d 1199 (1996).

       Practice Book § 624 provides: “After commencement of the trial for good cause shown, the judicial authority may permit the prosecuting authority to amend the information at any time before a verdict or finding if no additional or different offense is charged and no substantive rights of the defendant would be prejudiced. An amendment may charge an additional or different offense with the express consent of the defendant.”

       This same rule applies where the witness is a defendant. Our Supreme Court has recognized that “[a]n accused in taking the stand subjects himself to the same rules . . . which could by law be applied to other witnesses.” State v. Palozie, 165 Conn. 288, 298, 334 A.2d 468 (1973).

       The defendant also argues that the state does not have a constitutional right to cross-examination and whatever rights the state has must be subordinate to the defendant’s fifth amendment rights. He fails, however, to cite any legal authority in suppoxt of this assertion.

       See footnote 1.

       See footnote 3. In another letter, the defendant suggested that he could arrange to have Tamara killed.

       See footnote 1.

       In his brief, the defendant also claims that there was insufficient evidence that Tamara reasonably feared for her safety on April 1 and 7, 1994. lie was, however, acquitted on the two counts arising out of those dates.

       On direct examination, Tamara testified that on April 25, 1994, she was “threatened” and “scared.” On cross-examination, the following exchange between defense counsel and Tamara took place:
      “[Defense Counsel]: You were not in fear of your physical safety from Mr. Marsala on April 25, him being outside Mary Magdalene House, as you indicated, for a half an hour while you, inside, were not even permitted to leave. Isn’t that true?
      “[Tamara]: With that situation, that’s true.”

       See footnote 1.

       The defendant also asserts, and the state concedes, that there was insufficient evidence that he was “lying in wait.” The jury was charged on both theories. Where, however, there is “a factual insufficiency regarding one statutory basis, which is accompanied by a general verdict of guilty that also covers another, factually supported basis, is not a federal due process violation.” State v. Chapman, 229 Conn. 529, 539, 643 A.2d 1213 (1994). Because we find that there was sufficient evidence of “following,” we need not address this argument.

      “The defendant claims that the statute is overbroad because it may potentially implicate the free exercise of religion, the rights of assembly and petition, the right to travel and freedom of the press. The defendant in Culmo raised a nearly identical claim. State v. Culmo, supra, 43 Conn. Sup. 71.

       The defendant argues that the terms “following” and “lying in wait” are both unconstitutionally vague as applied to him. The state concedes, however, that it failed to adduce evidence that the defendant was lying in wait, and we, therefore, will not review that portion of the defendant’s claim.


source: Caselaw Access Project

author: HENNESSY, J.

license: Public Domain

text:
    MARTHA WOODWARD v. CHARLES WOODWARD
    (15334)
    O’Connell, Hennessy and Spallone, Js.
    Argued November 13, 1996
    officially released January 14, 1997

      Robert S. Kolesnik, with whom were Danielle Rado and, on the brief, Maureen Norris, for the appellant (plaintiff).

      Michael A. DAmico, for the appellee (defendant).
   HENNESSY, J.

The plaintiff, Martha Woodward, appeals in a dissolution action from the trial court’s postjudgment order that she purchase the defendant’s interest in their marital home or list the property for sale based on a revised appraisal of its fair market value. The court issued the order in response to the defendant’s motion for an order to effectuate a term in the judgment of dissolution. The dispositive issue in this appeal is whether the trial court should have granted the plaintiff’s request for an evidentiary hearing on two differing appraisals before making its order. The plaintiffs remaining claims on appeal essentially state that the trial court lacked the factual basis to determine that the revised appraisal should supplant the first appraisal as the binding appraisal. We do not address these remaining issues because they are resolved by our analysis of the plaintiffs evidentiary hearing claim.

The marriage of the parties was dissolved on October 19, 1990. In the judgment, the plaintiff was given the option to “buy out” the defendant’s interest in the parties’ house at the fair market value or, if she was unable or unwilling to do so, to list the property for sale. On August 3, 1992, in a postjudgment modification, the parties entered into an agreement that modified the terms of the dissolution judgment. The court-ordered modification required that a binding appraisal of the fair market value of the marital home be made. In the event that the appraisals performed by the parties’ respective appraisers differed by more than 10 percent, it was ordered that a third appraisal be performed by an appraiser selected by the parties’ appraisers.

The parties’ appraisers arrived at values that differed by more than 10 percent. On September 23, 1994, the trial court, Harrigan, J., ordered that a third appraiser be selected to make the binding appraisal. The third appraiser, William Lanese, estimated the value of the residence at $90,000. In his appraisal report, Lanese stated that “[a] high degree of reliance was placed on the estimated cost of $30,000 to make the subject safe and livable (submitted by Churchill Builders). If a more accurate estimate of costs is made available, the Appraiser reserves the right to revise his value conclusion.” The trial court, Dranginis, J., granted the defendant’s request to obtain a more detailed estimate to replace the Churchill Builders estimate.

The second repair estimate of $12,855.26 was initiated and paid for by the defendant. He secured a letter from Lanese that stated, based on the second repair estimate, that the revised estimated value of the house was $125,000. The defendant subsequently filed a motion for order on August 9, 1995, requesting that the court order the plaintiff to purchase the defendant’s interest or to place the property on the market at the revised value of $125,000. The trial court, Shortall, J., heard oral arguments on the motion. At that time, the plaintiff requested an evidentiary hearing, but the court declined to grant the plaintiffs request until after it reviewed the previous orders regarding the appraisals. The court stated that it needed to decide whether “the subsequent appraisal supersedes the earlier appraisal by the terms of the two judges’ orders.” Judge Shortall subsequently issued a memorandum of decision without conducting an evidentiary hearing and granted the defendant’s motion for order, utilizing the revised value of $125,000 as the binding appraisal. The plaintiff appeals the issuance of that order to this court.

I

At the outset, we must first decide whether the trial court lacked subject matter jurisdiction because the defendant’s August 9, 1995 motion for order requesting that the revised appraisal supplant the first “binding appraisal” amounted to a request for a modification of the property award. General Statutes § 46b-86 (a) allows the court; to modify final orders or judgments for the payment of periodic alimony and support but specifically excludes modification of property assignments. The issue, therefore, is whether the trial court modified a term of the dissolution judgment or simply effectuated the judgment by ordering the revised appraisal to be the binding appraisal.

“ ‘Where a decision as to whether a court has subject matter jurisdiction is required, every presumption favoring jurisdiction should be indulged.’ Killingly v. Connecticut Siting Council, 220 Conn. 516, 522, 600 A.2d 752 (1991), quoting Demar v. Open Space & Conservation Commission, [211 Conn. 416, 425, 559 A.2d 1103 (1989)]; see also Cross v. Hudon, 27 Conn. App. 729, 732, 609 A.2d 1021 (1992). Thus, if the . . . motion . . . can fairly be construed as seeking an effectuation of the judgment rather than a modification of the terms of the property settlement, this court must favor that interpretation.” Roberts v. Roberts, 32 Conn. App. 465, 470, 629 A.2d 1160 (1993).

It is clear that the trial court properly entertained the defendant’s motion for order. The August 3, 1992 modification of the dissolution judgment, agreed to by the parties and ordered by the court, required the parties to obtain a binding appraisal of the fair market value of the marital residence. The defendant’s August 9,1995 motion for order did not seek to modify or to add to the terms of the modified judgment. The defendant merely sought to have Lanese’s revised appraisal, based on the second repair estimate, become the binding appraisal. We, therefore, conclude that the defendant’s motion was properly before the court and that the trial court had jurisdiction to enter its subsequent order because that order did not operate to modify or to alter the terms of the modified judgment.

II

The plaintiff claims that the trial court improperly denied her request for an evidentiary hearing before issuing its order. We agree.

In his memorandum of decision, Judge Shortall held that the revised appraisal of $125,000 was the binding appraisal. He found that Judge Dranginis’ order that a second estimate of repairs be made demonstrated that the previous appraisal of $90,000 was not considered the binding appraisal. He did not allow an evidentiary hearing on the two conflicting repair estimates and stated that “[t]o allow further litigation over the accuracy of the two repair estimates, as requested by the plaintiff, would frustrate the purpose of the parties’ agreement and the court’s order that the issue of fair market value be resolved by an independent appraiser.”

“It is a fundamental premise of due process that a court cannot adjudicate a matter until the persons directly concerned have been notified of its pendency and have been given a reasonable opportunity to be heard in sufficient time to prepare their positions on the issues involved. Costello v. Costello, 186 Conn. 773, 776-77, 443 A.2d 1282 (1982) (informal meeting by trial court in chambers with counsel before issuing order to modify dissolution agreement was insufficient to meet due process requirements). Generally, when the exercise of the court’s discretion depends on issues of fact which are disputed, due process requires that a trial-like hearing be held, in which an opportunity is provided to present evidence and to cross-examine adverse witnesses. Lampasona v. Jacobs, 7 Conn. App. 639, 642-43, 509 A.2d 1075 (1986) .... Nelson v. Nelson, 13 Conn. App. 355, 367, 536 A.2d 985 (1988); see also Roundhouse Construction Corporation v. Telesco Masons Supplies Co., 168 Conn. 371, 376-77, 362 A.2d 778, vacated, 423 U.S. 809, 96 S. Ct. 20, 46 L. Ed. 2d 29 (1975), on remand, 170 Conn. 155, 365 A.2d 393, cert. denied, 429 U.S. 889, 97 S. Ct. 246, 50 L. Ed. 2d 172 (1976); Castro v. Castro, 31 Conn. App. 761, 769, 627 A.2d 452 (1993); Bartley v. Bartley, 27 Conn. App. 195, 197-98, 604 A.2d 1343 (1992); Duve v. Duve, 25 Conn. App. 262, 269, 594 A.2d 473, cert. denied, 220 Conn. 911, 597 A.2d 332 (1991), cert. denied, 502 U.S. 1114, 112 S. Ct. 1224, 117 L. Ed. 2d 460 (1992).” (Citation omitted; internal quotation marks omitted.) Roberts v. Roberts, supra, 32 Conn. App. 475-76.

The plaintiff claims that Roberts is factually and legally similar to this case. In Roberts, this court held that the trial court should have conducted an evidentiary hearing on the plaintiffs motion for order before ordering a sale of the marital home by auction. Id., 474. “[T]he oral statements of the attorneys at the hearing on the motion and the record itself were the only foundation for the issuance of the order for auction by committee. There was no evidentiary hearing on the plaintiffs motion for order. Even taking into account the deference due the trier of fact . . . the statements of the attorneys were not evidence and were insufficient for the trial court to rely upon in issuing the order for sale by auction.” (Citation omitted.) Id., 475. In this case, Judge Shortall made no findings of fact to support his conclusion that the second repair estimate was the more accurate estimate. He based his holding solely on the fact that the appraiser, Lanese, had already incorporated the second repair estimate into a revised appraisal, without any evidence that the second estimate was the more accurate figure.

The defendant argues that this case is distinguishable from Roberts because, here, there was no factual dispute to be resolved by an evidentiary hearing. He claims that the two differing appraisal values are not disputed facts because the second appraisal, incorporating the second repair estimate, was only a revision of the first appraisal, and, therefore, the second appraisal was the only binding appraisal. We disagree. The two different appraisals based on conflicting repair estimates constituted a disputed fact that the court should have resolved by conducting an evidentiary hearing before making its order.

We further hold that the trial court incorrectly determined that allowing an evidentiary hearing would frustrate the purpose of the original order for an independent appraiser to resolve the issue of fair market value. Lanese, using the second repair estimate, increased the appraisal value by $35,000, without explaining why he chose the second estimate over the first. The evidentiary hearing would have merely addressed the issue of the two conflicting repair estimates, and the parties would have been given the opportunity to put forth evidence as to which of the two estimates should be incorporated into Lanese’s binding appraisal.

The judgment is reversed and the case is remanded for further proceedings consistent with this opinion.

In this opinion the other judges concurred.


author: PER CURIAM.

text:
    JOAN M. CHAVEZ v. ADMINISTRATOR, UNEMPLOYMENT COMPENSATION ACT
    (14443)
    Foti, Schaller and Honnessy, Js.
    Argued December 16, 1996
    officially released January 14, 1997

      Thomas P. Clifford III, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Charles A. Overend, assistant attorney general, for the appellant (defendant).

      Lynne M. Knox, for the intervenor-appellant (employment security board of review).

      M. Leonard Caine III, for the appellee (plaintiff).
   PER CURIAM.

The defendant administrator of the Unemployment Compensation Act appeals from the judgment of the trial court reversing the decision of the security appeals division board of review (board) denying the plaintiff unemployment compensation benefits. The plaintiff, Joan M. Chavez, was initially found eligible for unemployment benefits by the administrator. An appeals referee affirmed the administrator’s finding after conducting a trial de novo. The employer subsequently appealed the decision to the board. The board reversed the referee’s decision and, in doing so, eliminated some of the referee’s findings of fact and made its own additional factual findings. The plaintiff appealed to the Superior Court from the board’s decision. After hearing, the trial court reversed the decision of the board and remanded the matter for further proceedings. In its memorandum of decision, the trial court found that the board improperly substituted its judgment for that of the referee on credibility issues without taking additional evidence or testimony.

This case is controlled by Calnan v. Administrator, Unemployment Compensation Act, 43 Conn. App. 779, 686 A.2d 134 (1996). In Calnan, we reversed the trial court and held that in order for a plaintiff to challenge the findings of the board of review properly on appeal, the plaintiff must file a motion to correct those findings. Id., 785. As in Calnan, the plaintiff in this case did not move to correct the findings of the board before appealing to the trial court.

The judgment is reversed and the case is remanded with direction to render judgment for the defendant.

       At oral argument, the plaintiff conceded that Calnan was controlling.


author: O’CONNELL, J.

text:
    CANDLEWOOD LANDING CONDOMINIUM ASSOCIATION, INC. v. TOWN OF NEW MILFORD
    (15383)
    O’Connell, Heiman and Stoughton, Js.
    Argued October 30, 1996
    officially released January 14, 1997

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

      Kim E. Nolan, with whom, on the brief, was Pamela D. Siemon, for the appellee (defendant).
   O’CONNELL, J.

The dispositive issue in this appeal is whether a condominium association has standing to appeal a municipal tax assessment of the common areas of a condominium. The plaintiff claims that the trial court improperly granted the defendant’s motion to dismiss for lack of aggrievement. We reverse the judgment of the trial court.

The record discloses the following facts. The plaintiff Candlewood Landing Condominium Association, Inc. (association), is a nonstock Connecticut corporation organized pursuant to General Statutes § 47-243. The association consists of the owners of the thirteen units of the Candlewood Landing condominiums. In addition to their units, members of the association each own an undivided 7.692 percent interest in the common elements of the condominium.

On October 1,1993, the town of New Milford assessed the condominium’s units and the common elements. The plaintiff appealed that assessment to the board of tax review on behalf of the unit owners. The board of tax review reduced the assessed value of the units but refused to reduce the assessment of the common elements. The association appealed to the Superior Court from the board of tax review’s decision. The trial court granted the defendant’s motion to dismiss for lack of aggrievement and the association appealed to this court.

We are asked to construe various sections of the Common Interest Ownership Act, General Statutes §§ 47-200 through 47-295. It is undisputed that the plaintiff recorded the necessary declaration to bring itself within the ambit of the act. A common interest community is defined as “real property described in a declaration with respect to which a person, by virtue of his ownership of a unit, is obligated to pay for (A) real property taxes on, (B) insurance premiums on, (C) maintenance of, or (D) improvement of, any other real estate other than that unit described in the declaration.” General Statutes § 47-202 (7).

The act defines a condominium as “a common interest community in which portions of the real property are designated for separate ownership and the remainder of the real property is designated for common ownership solely by the owners of those portions. A common interest community is not a condominium unless the undivided interests in the common elements are vested in the unit owners.” General Statutes § 47-202 (8). In a condominium, the term common elements means “all portions of the common interest community other than the units.” General Statutes § 47-202 (4). “It is elementary to say that what is not a unit is a common element, if it is within the real estate owned by the condominium association.” Grey v. Coastal States Holding Co., 22 Conn. App. 497, 503, 578 A.2d 1080, cert. denied, 216 Conn. 817, 580 A.2d 57 (1990). Each unit owner owns an undivided fractional interest in the common elements.

The taxing scheme for condominiums is established by General Statutes § 47-204 (b) (2) as follows: “[E]ach unit shall be separately taxed and assessed, and no separate tax or assessment may be rendered against any common elements . . . .” Included in the unit owner’s tax assessment is his fractional share of the common elements. The trial court reasoned that because the common elements are taxed to the individual unit owners, only the unit owners may appeal the assessments. This would be a reasonable interpretation if there were no other relevant statutes.

The act, however, confers on a condominium association the power to “[i]nstitute, defend or intervene in litigation or administrative proceedings in its own name on behalf of itself or two or more unit owners on matters affecting the common interest community.” General Statutes § 47-244 (a) (4). Thus, the question immediately before us is whether § 47-244 (a) (4) includes the right to take tax appeals on behalf of unit owners.

The objective of statutory construction is to give effect to the intended purpose of the legislation. State v. Spear, 234 Conn. 78, 86, 662 A.2d 80, cert. denied 516 U.S. 1009, 116 S. Ct. 565, 133 L. Ed. 2d 490 (1995). If the language of a statute is plain and unambiguous, courts need look no further than the words used because courts assume that the language expresses legislative intent. Office of Consumer Counsel v. Dept. of Public Utility Control, 234 Conn. 624, 646, 662 A.2d 1251 (1995). Common sense must be used and courts will assume that the legislature intended to accomplish a reasonable and rational result. King v. Board of Education, 203 Conn. 324, 332-33, 524 A.2d 1131 (1987). We must presume that each sentence, clause and phrase in a public act has a purpose and that the legislature did not intend to enact a meaningless law. Turner v. Turner, 219 Conn. 703, 713, 595 A.2d 297 (1991). Section 47-244 (a) (4) would be meaningless if we agreed with the trial court that, despite the statute’s clear terminology, an association lacked standing to appeal a tax assessment on a condominium’s common elements.

Furthermore, § 47-244 (a) (4) contains no exceptions or limitations on a condominium association’s authority to act on behalf of the unit owners as long as at least two unit owners agree. If we affirmed the trial court we would be effectively amending § 47-244 (a) (4) by adding a clause to the effect that, except for litigation pertaining to tax appeals, a condominium association may act in litigation and administrative proceedings. We decline to participate in such judicial legislation.

The plaintiff also urges us to reverse the trial court because of public policy considerations. Although the condominium in this case is small—only thirteen units—we cannot ignore the realities of condominium development in this state. Many condominiums consist of hundreds of units. If we construe the tax appeal statute to require that each unit owner bring an individual tax appeal for his fractional ownership of the common elements, we will have burdened the court system and the municipalities with hundreds of cases where a single action by the association could have accomplished the same result more speedily and efficiently. Furthermore, such a construction might well have the practical effect of making tax appeals in large condominiums virtually impossible.

We must avoid interpreting a statute that would have it function in a difficult and possibly bizarre fashion. Ford Motor Credit Co. v. B. W. Beardsley, Inc., 208 Conn. 13, 19, 542 A.2d 1159 (1988); Texaco Refining & Marketing Co. v. Commissioner of Revenue Services, 202 Conn. 583, 593, 522 A.2d 771 (1987). Application of common sense is not to be excused in statutory interpretation. Hartford Federal Savings & Loan Assn. v. Tucker, 13 Conn. App. 239, 250, 536 A.2d 962, cert. denied, 207 Conn. 805, 540 A.2d 373 (1988).

We conclude that pursuant to § 47-244 (a) (4) a condominium association has standing to bring an appeal from the assessment of the common elements of the condominium.

The judgment is reversed and the case is remanded for further proceedings.

In this opinion the other judges concurred.

       The plaintiffs following claims are subsumed under the central issue set forth in the body of this opinion. (1) Can an association bring a tax appeal of an unjust valuation of the common interest community? (2) Did the trial court incorrectly fail to distinguish between a common interest community and common elements? (3) Does a common interest community include the units and the common elements? (4) Is the association an aggrieved party?

       General Statutes § 47-243 provides in pertinent part: “The membership of the association at all times shall consist exclusively of all unit owners or, following termination of the common interest community, of all former unit owners entitled to distributions of proceeds under section 47-237 or their heirs, successors or assigns. The association shall be organized as a profit or nonprofit corporation, trust, partnership or unincorporated association.”

       General Statutes § 47-220 provides in pertinent part: “(a) A common interest community may be created pursuant to this chapter only by recording a declaration executed in the same manner as a deed . . . .”


author: HEIMAN, J. DUPONT, C. J.,

text:
    CELESTINA GREEN v. GENERAL DYNAMICS CORPORATION, ELECTRIC BOAT DIVISION, ET AL.
    (14491)
    Dupont, C. J., and Foti, Lavery, Landau, Herman, Spear and Hennessy, Js.
    Argued March 19
    reargued September 11
    officially released December 31, 1996

      Lucas D. Strunk, for the appellants (named defendant et al.).

      Nathan Julian Shafner, with whom, on the brief, was Amy M. Stone, for the appellee (plaintiff).

       December 31, 1996, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes.

   HEIMAN, J.

The defendant appeals from the decision of the compensation review board of the workers’ compensation commission (review board). The review board affirmed the finding and award of the workers’ compensation commissioner for the second district (commissioner). On appeal, the defendant claims that the review board improperly affirmed the commissioner’s award of dependent’s death benefits to the plaintiff. We reverse the decision of the review board.

The commissioner found the following relevant facts. Everett and Celestina Green were married in 1947. Everett Green worked as an electrician for Electric Boat in Groton from September 6, 1949, to June 17,1978, when he retired. He did not retire as a result of illness or disease. During the course of his employment, however, he was exposed to asbestos. Following his retirement from Electric Boat, he worked at the Norwich Convalescent Center. As of January 1, 1988, at the age of sixty-four, he had retired from his job at the convalescent center and had started to collect social security benefits.

On July 6, 1989, Everett Green was admitted to Backus Hospital for an exploratory thoracotomy. On July 11, 1989, he was diagnosed with malignant mesothelioma, a form of cancer. It was established that the mesothelioma was caused by exposure to asbestos. On December 8, 1989, he died as a result of the mesothelioma. Prior to the death of Everett Green (hereinafter the decedent), Celestina Green (hereinafter the plaintiff) was wholly dependent on him for financial support.

On the basis of these facts, the commissioner found that the date of the decedent’s incapacity was July 11, 1989, and that the decedent had died from an occupational disease that he had contracted as a result of his exposure to asbestos during the course of his employment with Electric Boat. The commissioner also determined that the plaintiff was entitled to dependent’s death benefits pursuant to General Statutes (Rev. to 1989) § 31-306, and that the plaintiffs compensation rate should be based on the decedent’s average weekly earnings during his final twenty-six weeks of employment with Electric Boat in 1978, subject to the statutory maximum compensation rate in effect on the date of his incapacity.

The defendant appealed the commissioner’s decision to the review board. The review board found that the commissioner had properly awarded dependent’s death benefits to the plaintiff and had properly determined the weekly compensation rate to be paid to the plaintiff. The review board based its decision on its interpretation of General Statutes (Rev. to 1989) § 31-306, its own published opinions, and a retroactive application of General Statutes (Rev. to 1991) § 31-310c, enacted as Public Acts 1990, No. 90-116, § 8, which became effective on October 1, 1990, subsequent to the date of the decedent’s incapacity. The defendant appealed to this court from the decision of the review board.

The defendant claims that the review board improperly affirmed the commissioner’s award of dependent’s death benefits to the plaintiff. The defendant posits that the plaintiff is not entitled to dependent’s death benefits based on the decedent’s average weekly earnings during his final twenty-six weeks of employment with Electric Boat in 1978. We agree and conclude that the plaintiff is not entitled to dependent’s death benefits.

We first set forth our standard of review. “The conclusions drawn by [the commissioner] from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. . . . Besade v. Interstate Security Services, 212 Conn. 441, 449, 562 A.2d 1086 (1989). The compensation review [board] must review the appeal on the record and must not retry facts. Hicks v. Department of Administrative Services, 21 Conn. App. 464, 466, 573 A.2d 770, cert. denied, 216 Conn. 804, 577 A.2d 716 (1990); Imbrogno v. Stamford Hospital, 28 Conn. App. 113, 118, 612 A.2d 82, cert. denied, 223 Conn. 920, 614 A.2d 82 (1992). . . . Black v. London & Egazarian Associates, Inc., 30 Conn. App. 295, 299-300, 620 A.2d 176, cert. denied, 225 Conn. 916, 623 A.2d 1024 (1993).” (Internal quotation marks omitted.) Chute v. Mobil Shipping & Transportation Co., 32 Conn. App. 16, 18-19, 627 A.2d 956, cert. denied, 227 Conn. 919, 632 A.2d 688 (1993). We conclude that the commissioner and the review board have misconstrued the law applicable to this case and improperly awarded dependent’s death benefits to the plaintiff.

The dependent’s death benefits statute applicable to the plaintiffs claim is General Statutes (Rev. to 1989) § 31-306 (b) (2). That statute provides for payment of benefits based on the average weekly earnings of the deceased at the time of injury, and provides that in the case of an occupational disease, the time of injury is determined by the date of incapacity to work. That statute provides in pertinent part: “Compensation shall be paid on account of death resulting from an accident arising out of and in the course of employment or from an occupational disease as follows ... To those wholly dependent upon the deceased employee at the time of his injury, a weekly compensation equal to sixty-six and two-thirds per cent of the average weekly earnings of the deceased at the time of injury,” subject to statutory limitations. (Emphasis added.) Furthermore, that statute provides that “[i]n the case of an occupational disease, the time of injury shall be the date of total or partial incapacity to work as a result of such disease. . . .” (Emphasis added.)

In this case, the “average weekly earnings of the deceased at the time of injury” is calculated pursuant to a formula set out in General Statutes (Rev. to 1989) § 31-310, which provides that “the average weekly wage shall be ascertained by dividing the total wages received by the injured worker from the employer in whose service he is injured during the twenty-six calendar weeks immediately preceding that during which he was injured, by the number of calendar- weeks during which, or any portion of which, such worker was actually employed by such employer . . . .” (Emphasis added.)

Our Supreme Court reviewed a former version of § 31-310 in Rousu v. Collins Co., 114 Conn. 24, 30-32, 157 A. 264 (1931), and concluded that the calculation of average weekly earnings pursuant to that statute should be based on the earnings received at the time of incapacity. The court stated: “There can be no compensation without incapacity. Compensation under our Act is based upon incapacity, total or partial, and hence is based upon loss of earning power. . . . The just measure of the value of the earning power of an employee and the correlative loss incurred by him would seem to relate to his earnings at the time the loss occurs through incapacity to work, rather than his earnings at an earlier time, perhaps so remote that, through changing conditions, personal or industrial, or both, his earnings at that time no longer accurately or correctly reflect the present value of the earning power of the workman.” (Citations omitted; emphasis added; internal quotation marks omitted.) Id., 31. In addition, the court “regard[ed] it as unreasonable that the General Assembly intended otherwise than that loss of earnings should be ascertained on the basis of the average for the specified period preceding the date when the state of facts arose which first entitled the plaintiff to compensation, that is, the incapacity.” (Emphasis added; internal quotation marks omitted.) Id., 32.

The Supreme Court followed the Rousu holding in Michna v. Collins Co., 116 Conn. 193, 197-200, 164 A. 502 (1933). In Michna, the court explained: “[T]he basis of [the plaintiffs] compensation should be his average weekly earnings at the time when his incapacity occurred . . . ascertained under the provisions of [the statute]. . . . The basis of ascertainment of average weekly wage, in accordance with [the statute] ... is the wages received from the employer in whose service the plaintiff was at the time his incapacity occurred ....'” (Emphasis added.) Id., 200.

We examined both Rousu and Michna in Stevens v. Raymark Corp./Raybestos Manhattan, 28 Conn. App. 226, 228, 610 A.2d 710, cert. denied, 223 Conn. 921, 614 A.2d 830 (1992), and reiterated that “[t]he applicable case law provides that the relevant date for determining compensation to an injured worker is the date of his incapacity to work . . . .” (Emphasis added.) We further concluded that “the plaintiffs benefits should be calculated on the basis of his wages on the date of his incapacity to work . . . .” (Emphasis added.) Id., 229-30.

In Mulligan v. F. S. Electric, 231 Conn. 529, 540-43, 651 A.2d 254 (1994), our Supreme Court reviewed General Statutes (Rev. to 1989) § 31-310, Rousu, Michna and Stevens. The court upheld the longstanding rule that the wages referred to in § 31-310 are those wages that the employee earned during the twenty-six weeks preceding the dale of incapacity. Mulligan v. F. S. Electric, supra, 540. The court also noted: “[I]n both Rousu and Michna, computation of benefits based on the date of incapacity . . . resulted in lower benefits to the claimant. The rule in Rousu is neutral in its application and can result in lower benefits, as in those cases, or higher benefits, as the claimant argues for in this case.” Id., 541 n.6.

Thus, it is clear from our law that the “average weekly wage” calculated pursuant to General Statutes (Rev. to 1989) § 31-310 is to be based on the wages earned by the employee during the twenty-six weeks immediately preceding the date of the employee’s incapacity. Here, however, the decedent earned no wages during the twenty-six weeks immediately preceding the date of his incapacity, and, as a result, he earned no “average weekly wage” pursuant to § 31-310. Thus, because the decedent earned no “average weekly wage,” and because such a wage is required for a calculation of dependent’s death benefits pursuant to § 31-306, we conclude that the plaintiff is not entitled to such benefits.

The decision of the compensation review board is reversed and the case is remanded with direction to deny the plaintiffs claim for benefits.

In this opinion FOTI, LANDAU and HENNESSY, Js., concurred.

DUPONT, C. J.,

with whom LAVERY and SPEAR, Js., join, dissenting. The majority concludes that the plaintiff is not entitled to dependent’s benefits under the Workers’ Compensation Act because her decedent had no wages during the twenty-six weeks preceding the date of his total or partial incapacity to work as a result of an occupational disease. We conclude that the plaintiff, as the decedent’s spouse and dependent, is so entitled. We would apply General Statutes § 31-310c (2) retroactively because it is a codification of administrative law as it existed at the time of the statute’s passage. Accordingly, we respectfully dissent.

General Statutes (Rev. to 1991) § 31-310c provides in pertinent part that “in the case of an occupational disease which manifests itself at a time when the worker has not worked during the twenty-six weeks immediately preceding the diagnosis of such disease, the claimant’s average weekly wage shall be considered to be equivalent to . . . (2) the average weekly wage earned by the claimant during the twenty-six calendar weeks last worked by the claimant, which wage shall be determined in accordance with . . . section 31-310 and adjusted pursuant to . . . section 31-307a.”*

It is not disputed that the date of the total or partial incapacity to work of the decedent was in July, 1989 or that he last worked at General Dynamics, Electric Boat Division, on June 17,1978, at which time he retired for reasons unrelated to injury or disease. The review board awarded the plaintiff benefits pursuant to § 31-306, which is entitled “Death resulting from accident or occupational disease. Dependents. Compensation.” The benefits were based on the decedent’s final twenty-six weeks of employment at Electric Boat, subject to § 307 (a), which establishes a maximum statutory benefit rate. The review board applied § 310c (2) retroactively, relying on its prior decisions in Orcutt v. Ohmweave Co., 8 Conn. Workers’ Comp. Rev. Op. 125 (1990), and Deremer v. General Dynamics Corp., 11 Conn. Workers’ Comp. Rev. Op. 317 (1993), and was aware that the statute did not become effective until October 1, 1990, a date subsequent to the date of the plaintiffs decedent’s incapacity to work. The review board stated in its decision that its holding was consistent with previous decisions of the board “that have established that a retiree is entitled to collect compensation for injuries resulting from occupational diseases that manifest themselves after retirement.”

Before discussing those situations in which legislation is appropriately applied retroactively, we emphasize that this case arises under the Workers’ Compensation Act. “The act is to be broadly construed to effectuate the purpose of providing compensation ‘for an injury arising out of and in the course of the employment regardless of fault.’ . . . Under typical workers’ compensation statutes, employers are barred from presenting certain defenses to the claim for compensation, the employee’s burden of proof is relatively light, and recovery should be expeditious. In a word, these statutes compromise an employee’s right to a common law tort action for work related injuries in return for relatively quick and certain compensation. . . . The purposes of the act itself are best served by allowing the remedial legislation a reasonable sphere of operation considering those purposes.” (Citations omitted.) Mingachos v. CBS, Inc., 196 Conn. 91, 97, 491 A.2d 368 (1985).

In Orcutt, one of the cases on which the board relied in its decision, the date the occupational disease was diagnosed, namely, the date of the employee’s incapacity to work, was in December, 1983. The disease had been contracted between 1962 and 1979. The claim was made in 1985, prior to the date of the passage of § 31-310 (c). As of the time of the employee’s incapacity to work, he had not worked for the preceding twenty-six weeks. The average weekly wage used in the calculation of benefits by the board was the same as that subsequently made law by § 31-310 (c) (2), namely, the average weekly wage earned by the claimant during his last twenty-six weeks of employment in 1979 while working for the employer in whose employ the disease was contracted.

A valid and final adjudication of an administrative body has the same effect as a final adjudication of a court and is subject to the same exceptions and qualifications as a judicial decision if it is not appealed or overruled. 2 Restatement (Second), Judgments § 83 (1982); see Convalescent Center of Bloomfield, Inc. v. Dept. of Income Maintenance, 208 Conn. 187, 544 A. 2d 604 (1988); Busconi v. Dighello, 39 Conn. App. 753, 768, 668 A. 2d 716 (1995), cert. denied, 236 Conn. 903, 670 A.2d 321 (1996). A crucial lest for the vitality of an administrative decision for the purpose of testing whether it should be equated with a judicial decision is whether there was access to judicial review of the administrative decision. The decision of “a valid and final adjudicative tribunal has the same effects under the mies of res judicata, subject to the same exceptions and qualifications, as a judgment of a court.” 2 Restatement (Second), Judgments § 83 (1) (1982). The decision in Orcutt was not subjected to judicial review because it was not sought, although such review was available. The decision, therefore, just as a judicial decision, remained a binding inteipretation of existing administrative law until such time that a judicial decision or the legislature decided to the contrary. The legislature subsequently did, in fact, speak on the subject, but not to the contrary. Instead, it passed legislation in accord with Orcutt. The legislature made it clear that a person who develops a manifestation of an occupational disease after retiring will not be denied compensation on the ground that he or she is no longer working and has not had wages for a requisite number of weeks. In other words, the legislature affirmed or codified a prior decision of the administrative body charged with the enforcement and administration of the Workers’ Compensation Act.

Due deference should be given to the review board’s interpretation of the statutes it enforces. Carriero v. Naugatuck, 43 Conn. App. 773, 685 A.2d 1141 (1996). “Although the inteipretation of statutes is ultimately a question of law . . . it is the well established practice of this court to accord great deference to the construction given [a] statute by the agency charged with its enforcement. . . .” State Board of Labor Relations v. Freedom of Information Commission, 43 Conn. App. 133, 137-38, 682 A.2d 1068 (1996), citing Griffin Hospital v. Commission on Hospitals & Health Care, 200 Conn. 489, 496, 512 A.2d 199, appeal dismissed, 479 U.S. 1023, 107 S. Ct. 781, 93 L. Ed. 2d 819 (1986).

The legislature in the passage of § 31-310c (2) gave effect to the board’s interpretation of prior law, and we should, therefore, interpret it as being retrospectively intended. A retrospective application of § 31-310c (2) does not change the expectations of employers or employees, and comports with existing decisions of the review board that were not appealed.

Courts are free to determine the extent to which decisions will have a retrospective effect. Neyland v. Board of Education, 195 Conn. 174, 179, 487 A.2d 181 (1985). Because administrative decisions have the same efficacy as judicial decisions in situations such as the one here, until changed by later judicial decisions or the legislature, courts are free to determine which administrative decisions should be given retrospective effect. The legislature can amend a statute to give rights that the courts have interpreted as being conferred by a statute. Reliance Ins. Co. v. American Casualty Ins. Co. of Reading Pennsylvania, 238 Conn. 285, 679 A.2d 925 (1996); State v. Blasko, 202 Conn. 541, 522 A.2d 753 (1987). When the administrative body charged with the administration of a particular statute has interpreted that statute, there is no reason why the legislature cannot likewise amend the statute to give the rights the administrative body thought appropriate.

      The defendants on appeal are the Electric Boat Division of General Dynamics Corporation, CIGNA Property and Casualty Company and Aetna Casualty and Surety Company. We refer to these defendants collectively as the defendant.

       The commissioner did not make a finding as to exactly when Everett Green retired from his job at the convalescent center. The plaintiff indicates in her brief that Everett Green worked at the center from 1981 until 1985.

       These findings are not disputed by the parties.

       General Statutes (Rev. to 1989) § 31-306 provides in pertinent part: “(b) Compensation shall be paid on account of death resulting from an accident arising out of and in the course of employment or from an occupational disease as follows ... (2) To those wholly dependent upon the deceased employee at the time of Ms iqjury, a weekly compensation equal to sixty-six and two-thirds per cent of the average weekly earnings of the deceased at the time of iqjury but in no case more than the maximum weekly benefit rate set forth in section 31-309 for the year m wMch the injury occurred or less than twenty dollars weekly. In the case of an occupational disease, tire time of injury shall be the date of total or partial incapacity to work as a result of such disease. ...”

       The commissioner made other findings not at issue in this appeal.

       The review board based its decision in part on its opimons in the following cases: Orcutt v. Ohmweave Co., 8 Conn. Workers’ Comp. Rev. Op. 125 (1990), and Deremer v. General Dynamics Corp., 11 Conn. Workers’ Comp. Rev. Op. 317 (1993).

       General Statutes (Rev. to 1991) § 31-310c provides in pertinent part: “[I]n Hie ease of an occupational disease the average weekly wage shall be calculated as of the date of total or partial incapacity to work. However, in the case of an occupational disease which manifests itself at a time when the worker has not worked during the twenty-six weeks immediately preceding the diagnosis of such disease, the claimant’s average weekly wage shall be considered to be equivalent to the greater of (1) the average weekly wage determined pursuant to section 31-310 and adjusted pursuant to section 31-307a or (2) the average weekly wage earned by the claimant during the twenty-six calendar weeks last worked by the claimant, which wage shall be determined in accordance with said section 31-310 and adjusted pursuant to said section 31-307a.”

       The review board made other findings not at issue in this appeal.

       See footnote 4.

       The parties do not dispute the commissioner’s finding that the effective time of injury/date of incapacity here is July 11, 1989.

       The review board, in upholding the commissioner’s determination that the plaintiff was entitled to dependent’s death benefits based on the decedent’s average weekly earnings during his last twenty-six weeks of employment with Electric Boat in 1978, relied on General Statutes (Rev. to 1991) § 31-31ÜC. See footnote 7. That statute, enacted as Public Acts 1990, No. 90-16, § 8, became effective on October 1, 1990, subsequent to the decedent’s dale of incapacity, and addresses the method of calculating the average weekly wage of a worker with an occupational disease. The dissent posits that § 31-310c should be applied retroactively because it is a codification of administrative law as it existed at the time of the statute’s passage. We disagree. “Our Supreme Court has clearly indicated that new workers’ compensation legislation affecting rights and obligations as between the parlies, and not specifying otherwise, applie[s] only to those persons who received injuries after the legislation became effective, and not to those injured previously.” (Internal quotation marks omitted.) Roswell v. State, 29 Conn. App. 432, 434-35, 615 A.2d 1063, cert. denied, 224 Conn. 992, 618 A.2d 529 (1992). We conclude, therefore, that because § 31-310e took effect after the decedent’s date of incapacity and affects the rights and obligations of parties to a workers’ compensation claim, § 31-310c does not apply to this case. We also conclude that § 31-310c does not apply 1,o dependent’s death benefits claims arising after October 1, 1990, because the current statute governing dependent’s death benefits, General Statutes (Rev. to 1995) § 31-306, does not refer to § 31-3 We, but, rather, specifically provides that the formula set out in § 31-310 should be used to calculate such benefits.

       The statute was formerly codified as § 5238. The relevant portion of § 5238 in Rousu differs only insignificantly from the portion of § 31-310 relevant here.

       Neither party claims that the decedent’s social security benefits qualify as wages.

       The dissent relies on Orcott v. Ohmweave Co., 8 Conn. Workers’ Comp. Rev. Op. 125 (1990), and Deremer v. General Dynamics Corp., 11 Conn. Worlcers’ Comp. Rev. Op. 317 (1993). These two prior decisions of the review board use the formula subsequently set out in General Statutes § 31-310c to calculate dependent’s death benefits, namely the average weekly wage earned by the claimant during his last twenty six weeks of employment for the employer in whose employ the disease was contracted. We disagree. We conclude that as Orcott and Deremer do not accurately reflect the proper method of calculating benefits pursuant to General Statutes (Rev. to 1989) § 31-310, those decisions should not be relied upon by claimants, the commissioner or the review board in future cases. See footnote 11.

       Tlio statute was amended to provide for a period of fifty-two weeks, effective July 1, 1993. Public Acts 1993, No. 93-228.

       The review board specifically stated that it was not applying § 31-310c (1) because that portion of the statute was not the subject of its previous decisions.


text:
    ESTATE OF ROBERT FREDERICK ET AL. v. GENERAL DYNAMICS CORPORATION, ELECTRIC BOAT DIVISION, ET AL.
    (14772)
    Dupont, C. X, and Foti, Lavery, Landau, Heiman, Spear and Hennessy, Js.
    Argued March 19
    reargued September 11
    officially released December 31, 1996

      Lucas D. Strunk, for the appellants (named defendant et al.).

      Stephen C. Embry, with whom, on the brief, was Gerard R. Rued, for the appellees (plaintiffs).

       December 31, 1996, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes.

   HEIMAN, J.

This case is controlled by our opinion in Green v. General Dynamics Corp., 44 Conn. App. 112, 687 A.2d 550 (1996).

The decision of the compensation review board is reversed and the case is remanded with direction to deny the plaintiffs’ claim for benefits.

In this opinion FOTI, LANDAU and HENNESSY, Js., concurred.

DUPONT, C. J.,

with whom LAVERY and SPEAR, Js., join, dissenting. For the reasons stated in our dissent in Green v. General Dynamics Corp., 44 Conn. App. 112, 687 A.2d 550 (1996), we respectfully dissent.