text:
    HUD/WILLOW STREET APARTMENTS v. MARGARITA GONZALEZ HUD/WILLOW STREET APARTMENTS v. FELICITY RIVERA
    (AC 21328)
    Dranginis, Flynn and Daly, Js.

      Argued December 13, 2001
    officially released March 19, 2002

      David S. Stowe, for the appellants (defendants).

      John A. Barbieri, for the appellee (plaintiff).
   Opinion

FLYNN, J.

The defendant in this summary process action, Margarita Gonzalez, appeals from the trial court’s judgment of possession in favor of the plaintiff, HUD/Willow Street Apartments. Resolution of this appeal requires us to construe two separate and distinct but similarly numbered statutes. The first statute we refer to, General Statutes § 47a-23, applies to evictions generally. The second, General Statutes § 47a-23c, sometimes called the “good cause” eviction statute, applies to evictions involving a protected class of tenants, namely, those who are elderly, blind or disabled and who reside in a building that consists of five or more dwelling units. The dispositive issue in this appeal is whether the owner of an apartment building may rely on General Statutes § 47a-23 (a) (4) (B) as a valid reason for issuing a notice to quit possession to a tenant when the owner has neither alleged nor proved that the tenant whom it seeks to dispossess is a member of the class of tenants described in General Statutes § 47a-23c (a) (1). We answer that question in the negative and reverse the judgments of the trial court. We conclude that permanent removal of the rental unit from the housing market is not an authorized reason to dispossess a tenant under § 47a-23 (a) (4) (B) unless the eviction is commenced under the provisions of § 47a-23c, the “good cause” eviction statute, against an elderly, disabled or blind person residing in a building with five or more dwelling units.

The facts are not in dispute. The plaintiff, the owner of an apartment building located on Willow Street in New Britain, rented an apartment to the defendant. On February 2, 2000, the plaintiff caused a notice to quit to be served on the defendant. The notice to quit provided that the defendant was to quit possession of her apartment on or before February 29, 2000. The reason for the notice to quit was stated as follows, on the first line, “Termination of lease” and on the line beneath that, “Building to be demolished.” When the defendant failed to vacate the premises within the time provided, the plaintiff instituted a summary process action against the defendant pursuant to General Statutes § 47a-23a. In its complaint, the plaintiff alleged that the plaintiff and the defendant had entered into a written lease and that pursuant to the terms of the lease, the plaintiff could terminate the lease at any time and on any ground. The plaintiff further alleged that although a notice to quit had been served upon the defendant, she had failed to vacate the premises on or before the date provided in the notice and, accordingly, it was seeking a judgment for possession of the premises as well as costs.

On May 10, 2000, the defendant filed a motion to dismiss the action. She argued that the court lacked subject matter jurisdiction over the action because the plaintiff had failed to serve her with a valid notice to quit pursuant to § 47a-23. Specifically, she argued that because service of a valid notice to quit is a condition precedent to the commencement of a summary process action and because the notice that the plaintiff caused to be served upon her was invalid, the court lacked subject matter jurisdiction over the action and, therefore, the action should be dismissed.

The plaintiff opposed the motion to dismiss, arguing that the notice to quit was valid pursuant to § 47a-23 (a) (4), the general eviction statute, which authorizes a landlord or owner to issue a notice to quit “when an action of summary process ... to dispossess a tenant is authorized under subsection (b) of section 47-23c . . . [due to the] (B) permanent removal by the landlord of the dwelling unit of such tenant from the housing market . . . .’’It argued that because the language that it used in the notice to quit, “Building to be demolished,” simply means that the dwelling unit is to be removed permanently from the housing market, it had complied with the statutory requirements for issuing a valid notice to quit and, therefore, the motion to dismiss should be denied.

The motion, which was not argued before the court but was, instead, submitted “on the papers,” was denied by the court, Tanzer, J. Although the court did not file a memorandum of decision, the record reveals that the court’s reason for denying the motion to dismiss was: “The reason stated in the Notice to Quit—‘building to be demolished’ is of and uses words of similar import to those in General Statutes § 47a-23’—permanent removal from the housing market.”

Thereafter, the defendant filed an answer to the plaintiffs complaint in which she denied that she had entered into a written lease with the plaintiff. A written lease, if one existed, was not made a part of the record for purposes of this appeal. The defendant also filed a special defense. The special defense contained essentially the same allegations that formed the basis of the defendant’s motion to dismiss, namely, that because the plaintiff had failed to serve her with a valid notice to quit, which is a condition precedent to maintaining an action for summary process, the court lacked subject matter jurisdiction and the action should be dismissed.

The case was set down for trial on October 18, 2000. Again, the defendant raised the issue of lack of subject matter jurisdiction. At trial, the court, Crawford, J., gave the defendant the opportunity to reargue the jurisdictional issue, which it treated as a second motion to dismiss. After argument, the court denied the defendant’s motion and rendered judgments of possession in favor of the plaintiff. This appeal followed.

On appeal, the defendant claims that the plaintiffs notice to quit was invalid because the reason that the notice set forth, “Termination of lease, Building to be demolished,” is not one of the reasons set forth by § 47a-23 (a) for issuing a valid notice to quit possession and, therefore, that its action for summary process should have been dismissed because an invalid notice to quit cannot confer subject matter jurisdiction on the court.

Before turning to the merits of the issues raised on appeal, we review the law pertaining to summary process proceedings. “Summary process is a special statutory procedure designed to provide an expeditious remedy. ... It enable [s] landlords to obtain possession of leased premises without suffering the delay, loss and expense to which, under the common-law actions, they might be subjected by tenants wrongfully holding over their terms. . . . Summary process statutes secure a prompt hearing and final determination. . . . Therefore, the statutes relating to summary process must be narrowly construed and strictly followed.” (Citations omitted; internal quotation marks omitted.) Young v. Young, 249 Conn. 482, 487-88, 733 A.2d 835 (1999). “As a condition precedent to a summary process action, proper notice to quit is a jurisdictional necessity.” (Internal quotation marks omitted.) Federal Home Loan Mortgage Corp. v. Van Sickle, 52 Conn. App. 37, 44, 726 A.2d 600 (1999).

With these principles in mind, we turn to the issues raised in this appeal. The defendant first claims that the plaintiffs notice to quit was invalid because it failed to set forth one of the reasons listed in § 47a-23 (a), which reasons the defendant claims are the exclusive reasons for issuing such a notice. The plaintiff claims, to the contrary, that the reasons for issuing a notice to quit set forth in § 47a-23 (a) are not exclusive but, rather, that subsection (a) merely sets forth some of the reasons an owner may invoke in issuing a valid notice to quit. We agree with the defendant.

General Statutes § 47a-23 (a) provides in relevant part: “When the owner or lessor . . . desires to obtain possession or occupancy of . . . any apartment in any building . . . and (1) when a rental agreement or lease of such property, whether in writing or by parol, terminates for any of the following reasons: (A) By lapse of time; (B) by reason of any expressed stipulation therein; (C) violation of the rental agreement or lease or of any rules or regulations adopted in accordance with section 47a-9 or 21-70; (D) nonpayment of rent within the grace period provided for residential property in section 47 a-15a or 21-83; (E) nonpayment of rent when due for commercial property; (F) violation of section 47a-ll or subsection (b) of section 21-82; (G) nuisance, as defined in section 47a-32, or serious nuisance, as defined in section 47a-15 or 21-80; or (2) when such premises, or any part thereof, is occupied by one who never had a right or privilege to occupy such premises; or (3) when one originally had the right or privilege to occupy such premises but such right or privilege has terminated; or (4) when an action of summary process or other action to dispossess a tenant is authorized under subsection (b) of section 47a-23c for any of the following reasons: (A) Refusal to agree to a fair and equitable rent increase, as defined in subsection (c) of section 47a-23c, (B) permanent removal by the landlord of the dwelling unit of such tenant from the housing market, or (C) bona fide intention by the landlord to use such dwelling unit as such landlord’s principal residence; or (5) when a farm employee ... or a domestic servant, caretaker, manager or other employee . . . occupies such premises furnished by the employer and fails to vacate such premises after employment is terminated by such employee or the employer or after such employee fails to report for employment, such owner or lessor . . . shall give notice to each lessee or occupant to quit possession or occupancy of such . . . apartment ... at least three days before the termination or the rental agreement or lease, if any, or before the time specified in the notice for the lessee or occupant to quit possession or occupancy.”

The plaintiffs argument, that the list of reasons set forth in § 47a-23 (a) is not an exclusive list, is at odds with the principles of our summary process jurisprudence, which mandates that the summary process statutes be strictly and narrowly construed. See Young v. Young, supra, 249 Conn. 487-88, and the cases cited therein.

It is also at odds with well established rules of statutory construction. First, “[u]nless there is evidence to the contrary, statutory itemization indicates that the legislature intended the list to be exclusive.” (Internal quotation marks omitted.) Bridgeport Hospital v. Commission on Human Rights & Opportunities, 232 Conn. 91, 101, 653 A.2d 782 (1995). The plaintiff in the present case does not point to any language contained in § 47a-23 (a) that can fairly be read to indicate that the legislature did not intend the reasons for issuing a notice to quit that it set forth in § 47a-23 (a) to be exclusive. Further, § 47a-23 (a) sets forth in great detail the reasons that an owner may rely on in issuing a valid notice to quit. It is difficult to believe that the legislature would go to such lengths in describing those reasons if it did not intend the reasons it set forth to be exclusive.

Second, it is a basic tenet of statutory construction that a statute should be read as a whole and that care should be taken to give effect to all of its provisions. AvalonBay Communities, Inc. v. Orange, 256 Conn. 557, 588-89, 775 A.2d 284 (2001). The plaintiff claims that the reasons set forth in § 47a-23 (a) are not exclusive; yet, subsection (b) of that section, which prescribes the form that a notice to quit must take, requires that the reason for the notice to quit be specifically provided “ ‘using the statutoiy language or words of similar’ import ....’” If an owner were to rely on a reason that is not set forth in subsection (a) of § 47a-23 to issue a notice to quit, the owner could not comply with subsection (b) of that same section because the owner would be unable to set forth on the notice the “ ‘statutory language or words of similar import’ ” indicating the reason for the issuance of the notice.

We conclude that the reasons for issuing a notice to quit set forth in § 47a-23 (a) are exclusive. They are the only reasons that an owner may rely on for issuing a valid notice to quit.

The defendant next claims that the provisions of subdivision (4) of § 47a-23 (a) apply exclusively to the protected class of tenants set forth in § 47a-23c and, therefore, a notice to quit may properly issue under § 47a-23 (a) (4) only when the owner has first proved that the tenant whom it seeks to dispossess is a tenant who resides in a building that contains five or more dwelling units and is either elderly, blind or disabled, as provided by § 47a-23c (a) (1). She claims that because the plaintiff in the present case has failed to offer proof that the defendant meets the criteria set forth in § 47a-23c (a) (1), it may not properly invoke § 47a-23 (a) (4) (B) as a valid reason for issuing its notice to quit. She further claims that because the plaintiffs notice to quit was not authorized under § 47a-23 (a) (4) (B), it was invalid and, therefore, insufficient to confer subject matter jurisdiction on the court.

The plaintiff claims that § 47a-23 (a) (4) (B) is applicable to any and all tenants whom an owner seeks to dispossess by virtue of the fact that it is contained in § 47a-23 (a), which applies to evictions of tenants generally. In addition, it claims that the interpretation advanced by the defendant, that § 47a-23 (a) (4) (B) may only be invoked to dispossess tenants described in § 47a-23c (a) (1), would lead to an incongruous result because it would allow owners who intend to remove a dwelling unit from the housing market to evict tenants who are members of the protected class of tenants pursuant to § 47a-23c but would not allow them to evict other, unprotected tenants for that same reason. The plaintiff claims that such an interpretation contravenes the legislative purpose of § 47a-23c, which is to provide the elderly, blind and disabled with additional protections against evictions and not to arm landlords and owners with additional reasons to evict such tenants. We agree with the defendant because we find her interpretation consistent with the balance the legislature struck between the rights of landlords and the rights of protected tenants.

Resolution of this issue requires us to examine two statutes, § 47a-23 (a), the general eviction statute, and § 47a-23c, the “good cause” eviction statute. In doing so, we rely on well established principles of statutory construction. “Statutory construction is a question of law and therefore our review is plenary. . . . [0]ur fundamental objective is to ascertain and give effect to the apparent intent 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.) Young v. Young, supra, 249 Conn. 489-90.

“Generally speaking, the presumption is that the words of a statute are used in their ordinary sense. Nonetheless, there should be inquiry as to the legislative intent, involving a consideration of the language used, its context, pertinent antecedent legislative history, related subject matters with which the language deals, its operation as it may be interpreted, the conditions and circumstances under which it was enacted, and all other matters calculated to throw light on the subject.” 1 B. Holden & J. Daly, Connecticut Evidence (2d Ed. 1988) § 50, p. 222.

With those principles of statutory construction in mind, we turn first to the language of the statutes that are central to this appeal.

In issuing its notice to quit, the plaintiff in the present case relied on the authority of § 47a-23 (a) (4), which permits an owner or lessor to issue a notice to quit “when an action of summary process or other action to dispossess a tenant is authorized under subsection (b) of section 47a-23c . . . .” The prefatory language used in subdivision (4) of § 47a-23 (a), “when . . . authorized under subsection (b) of section 47a-23c,” makes it clear that use of subdivision (4) of § 47a-23 (a) as a reason for issuance of a notice to quit is not available in all summary process actions. By its terms, it may be invoked to dispossess a tenant only when a summary process action is authorized by § 47a-23c (b). Accordingly, we turn to the language of § 47a-23c (b) to determine which summary process actions that section authorizes.

Subsection (b) of § 47a-23c provides in relevant part: “(1) No landlord may bring an action of summary process ... to dispossess a tenant described in subsection (a) of this section except for one or more of the following reasons: (A) Nonpayment of rent; (B) refusal to agree to a fair and equitable rent increase, as defined in subsection (c) of this section; (C) material noncompliance with section 47a-ll or subsection (b) of section 21-82, which materially affects the health and safety of the other tenants or which materially affects the physical condition of the premises; (D) voiding of the rental agreement; (E) material noncompliance with the rules and regulations of the landlord adopted in accordance with section 47a-9 or 21-70; (F) permanent removal by the landlord of the dwelling unit of such tenant from the housing market; or (G) bona fide intention by the landlord to use such dwelling unit as his principal residence.” (Emphasis added.) Again, by its terms, the prefatory language in the statute, “to dispossess a tenant described in subsection (a),” indicates that subsection (b) of § 47a-23c is limited to evictions involving tenants described in subsection (a).

Subsection (a) of § 47a-23c, in turn, provides in relevant part: “(1) Except as provided . . . this section applies to any tenant who resides in a building or complex consisting of five or more separate dwelling units . . . and who is either: (A) Sixty-two years of age or older, or whose spouse, sibling, parent or grandparent is sixty-two years of age or older and permanently resides with that tenant; (B) blind ... or (C) physically disabled

On the basis of the statutory language of both § 47a-23 (a) (4) and § 47a-23c, we conclude that an owner may not properly rely on § 47a-23 (a) (4) to issue a notice to quit to any and all tenants simply because subdivision (4) has been incorporated in the general eviction statute. The prefatory language of subdivision (4) clearly indicates that the legislature intended that subdivision to apply only to summary process actions authorized by § 47a-23c (b), the “good cause” statute, and only to the protected class of tenants described in § 47a-23c (a).

We now turn to the legislative history of § 47a-23c, the circumstances surrounding its enactment and the policy that that section was designed to implement, which we conclude, despite the plaintiffs assertions to the contrary, support our interpretation of the limited applicability of § 47a-23 (a) (4).

The plaintiff contends that our interpretation that § 47a-23 (a) (4) is of limited applicability is in contravention of the legislative purpose of § 47a-23c. It contends that such an interpretation will serve to allow the elderly, blind and disabled, members of the protected class of tenants, to be evicted when an owner chooses to remove permanently a dwelling unit from the housing market but will not allow an owner to evict other tenants, those not entitled to the protections of § 47a-23c, for that reason. We disagree that our interpretation that an owner may properly invoke § 47a-23 (a) (4) to issue a notice to quit only when the owner seeks to dispossess a tenant described in § 47a-23c (a) (1) is at odds with the legislative purpose of § 47a-23c. On the contrary, we conclude that our inteipretation of § 47a-23 (a) (4) is in keeping with the legislative balancing of countervailing rights for which the statutory scheme expressly provides.

The legislature has not conferred blanket immunity from eviction on elderly, disabled or blind tenants. Section 47a-23c is entitled “Prohibition on eviction of certain tenants except for good cause.” In enacting this good cause eviction statute, the legislature sought to protect elderly, blind and physically disabled tenants from evictions, other than those that were instituted for good cause. First Federal Bank, FSB v. Whitney Development Corp., 237 Conn. 679, 684-85, 677 A.2d 1363 (1996). This legislation was enacted at a time when property owners were rushing to convert their apartment buildings into condominiums, which elderly or disabled tenants on fixed incomes could not afford to purchase from the owners, leaving these persons displaced from their homes during a period in time when Connecticut was facing a serious shortage of rental housing.

The legislative history of § 47a-23c is replete with references to the fact that the statute was intended to balance the legislature’s desire to protect such tenants from being displaced from their homes against its desire to preserve the rights of property owners. To effectuate this intent, the legislature recognized that there had to be a counterbalancing of rights. We conclude that § 47a-23 (a) (4), permitting a notice to quit for the reason that the owner intends to remove permanently the unit of a protected tenant from the housing market, is simply a means of achieving that counterbalance.

For example, section 47a-23c provides sweeping protections to the elderly, blind and disabled. Unlike § 47a-23 (a), which applies to evictions generally and allows owners to issue a notice to quit to a tenant upon termination of the lease, owners that rent to protected tenants may not terminate the leases of such tenants. Also, subsection (c) of § 47a-23c places further restraints on those owners because it provides for a form of rent control; it states that the rent of a protected tenant “may be increased only to the extent that such increase is fair and equitable . . . .” It deems municipal fair rent commissions, or when a municipality has not established a fair rent commission, the Superior Court, the final arbiter of what is a “fair and equitable” rent. Without the exceptions set forth in subsection (b) of § 47a-23c, the “good cause” statute, as a whole, would be too great an infringement on the rights of property owners. Without the ability to oust elderly, blind or disabled tenants by terminating their lease and using the property for other nonhousing purposes, property owners could conceivably be saddled with a building that they must continue to rent to a protected tenant at a rate that some third party deems to be “fair and equitable,” rather than at a rate that the market would bear, thereby giving them the economic return they need to service mortgages, taxes and other similar expenses. General Statutes § 47a-23c (b) (1) (F), which has been incorporated in § 47a-23 (a) as subdivision (4) (B), attempts to balance the rights given to protected tenants by giving an owner the option of removing a rental unit from the housing market when it is no longer economically feasible to rent to such tenants, or for other reasons.

We conclude that the legislative history of § 47a-23c demonstrates that “permanent removal ... of the dwelling unit . . . from the housing market” as a reason for a notice to quit under § 47a-23 (a) (4) (B) was intended to apply only as a reason to be invoked against a member of the protected class of tenants because it acts to offset the extensive rights that are bestowed on only those tenants set forth in § 47a-23c (a) (l). Owners seeking to dispossess tenants who do not fall within the protected class have a number of statutory reasons they can invoke to evict an unprotected tenant. See General Statutes § 47a-23 (a) (l)-(3). They do not need, and are not entitled, to invoke the additional reasons set out in § 47a-23 (a) (4), which reasons represent the balance the legislature struck between the rights of protected tenants and property owners, because they are not faced with the same restraints such as the inability to terminate a lease or to raise rents as they see fit. Owners evicting the unprotected class of tenants are, therefore, not entitled to the countervailing right to evict such unprotected tenants for reasons applicable only to elderly, blind or disabled tenants who reside in a building consisting of at least five dwelling units.

We also disagree with the plaintiffs contention that an owner could never issue a valid notice to quit where it seeks to evict an unprotected tenant for the reason that it intends to remove permanently that tenant’s dwelling unit from the housing market. General Statutes § 47a-23 (a) sets out five separate categories of reasons for issuing a valid notice to quit, one of which is “when a rental agreement . . . whether in writing or by parol, terminates ... by reason of any expressed stipulation therein.” There is nothing in that language that prevents a prudent landlord or owner from employing that section to provide in its lease that when the owner or landlord intends to remove permanently the dwelling unit from the housing market, the lease shall terminate.

In any event, “[i]t is the duty of the court to interpret statutes as they are written . . . and not by construction read into statutes provisions which are not clearly stated.” (Internal quotation marks omitted.) Corcoran v. Taylor, 65 Conn. App. 340, 344, 782 A.2d 728, cert. denied, 258 Conn. 925, 783 A.2d 1027 (2001). Where, as here, the legislature has used prefatory language to indicate that § 47a-23 (a) (4) only applies in summary process actions authorized by § 47a-23c (b), we will not read into that statute a provision that makes it applicable in all summary process actions.

In the present case, the plaintiff relied on § 47a-23 (a) (4) (B) but neither alleged in its complaint nor offered any proof at trial that the defendant was a member of the class of tenants described in § 47a-23c (a) (1) or that summary process was authorized by § 47a-23c (b). Consequently, we conclude that the plaintiffs notice to quit fails to set forth one of the reasons authorized by § 47a-23 (a) for issuing such a notice and it is, therefore, invalid. We further conclude that because a valid notice to quit is a condition precedent to instituting a summary process action the court lacked subject matter jurisdiction over the plaintiffs summary process action.

The judgments are reversed and the cases are remanded with direction to render judgments dismissing the plaintiffs complaints.

In this opinion the other judges concurred.

       A second tenant, Felicity Rivera, is the defendant in the companion case. The claims raised on appeal by each of the defendants are identical. For ease of reference, we refer to Margarita Gonzalez, the defendant in the first case, as the defendant.

       We note that although the address set forth on the notice to quit was 42-A Willow Street, the address listed on the complaint was 26A Willow Street. The parties have not, however, raised this issue.

       General Statutes § 47a-23 (b) requires that the notice to quit set out the “ ‘reason or reasons for the notice to quit possession or occupancy using the statutory language or words of similar import

       These sections detail the tenant’s responsibilities to comply with any applicable health and safety codes, by keeping the dwelling unit clean and safe, and to use the property only as a dwelling unit.

       General Statutes § 47a-23c is the good cause eviction statute, which protects elderly, disabled or blind persons who reside in an apartment house with five or more dwelling units.

       “What we are talking about ... is often widows, over age seventy-five, living on modest, fixed incomes, who have been living in a building or apartment for ten to fifteen years since their husband died and who often cannot afford to buy condominiums.” 23 S. Proc., Pt. 5, 1980 Sess., p. 1394, remarks of Senator Clifton A. Leonhardt.

       The legislation “says that it is in the public interest to preserve a number of dwelling units as rentals for those persons who because of increasing age, infirmity or other functional limitations are least likely to be able to afford to purchase housing and are most susceptible to mental and physical health problems that may result from the trauma of being forced to search for housing in a market where the vacancy rate for residential rental units is approaching zero in many localities.” 23 S. Proc., Pt. 5, 1980 Sess., p. 1430, remarks of Senator Sanford Cloud, Jr.

       “What we are balancing here are the rights of landlords which have been talked about and explained very well and the needs of tenants. It’s a delicate balance. . . . [T]his is a prudent and balanced reform which looks upon those needs and those rights and deals with them in a very responsible fashion.” 23 S. Proc., Pt. 5, 1980 Sess., p. 1420, remarks of Senator William E. Curry, Jr.; see also remarks of Senator Eugene A. Skowronski: “I strongly feel that there has been a very sincere and diligent effort to come up with a bill which I recognize a need [for], an attempt to find some reasonable, moderate, middle, fair ground on this thing . . . .” 24 S. Proc., Pt. 7, 1980 Sess., p. 2099. “We think this is well balanced. There are some aspects of it which some of us would like to have stronger, some would like to have weaker. A number of us have made compromises.” 23 H.R. Proc., Pt. 18, 1980 Sess., p. 5316, remarks of Representative Richard D. Tulisano.

       See footnote 8.

       “Termination of lease is, in effect, what is removed from the statutes as to the protected classes.” 23 H.R. Proc., Pt. 18, 1980 Sess., p. 5379, remarks of Representative Richard D. Tulisano.

       See General Statutes § 47a-23c (c) (2).

       See 23 H.R. Proc., Pt. 18, 1980 Sess., pp. 5324-31.

       See footnote 12.

       See remarks of Representative John A. Berman, explaining that there are “some escape hatches in the bill because what we say ... is that a landlord can refuse to rent to the elderly and so on if he intends to permanently remove the housing from the market.” 23 H.R. Proc., Pt. 18, 1980 Sess., p. 5388.

       For a tenant to qualify for the benefits of subsection (b), “each of the requirements must be met. No single one is sufficient to put you into the protected class.” 23 S. Proc., Pt. 7, pp. 2099-2100, remarks of Senator Clifton A. Leonhardt.

       The reason that subdivision (4) appears at all in General Statutes § 47a-23, the general eviction statute, is to give landlords and owners commencing good cause evictions pursuant to General Statutes § 47a-23c access to the summary process statute. See Conn. Joint Standing Committee Hearings, Judiciary, Pt. 10, 1995 Sess., p. 3356, statement of Raphael L. Podolsky, an attorney for the Legal Assistance Resource Center of Connecticut, Inc., regarding House Bill 6966, which added subdivision (4) to § 47a-23 (a) (“Section 1 [a] [4] adds to [General Statutes] § 47a-23 a list of grounds for eviction which already appear in [General Statutes] § 47a-23c concerning the eviction of elderly and disabled renters. There is some disagreement as to whether it is necessary to restate them in § 47a-23. The section resolves the dispute.”).


source: Caselaw Access Project

author: MIHALAKOS, J.

license: Public Domain

text:
    KARL W. FUNDERBURK v. COMMISSIONER OF MOTOR VEHICLES
    (AC 21481)
    Landau, Mihalakos and Dupont, Js.
    Submitted on briefs December 13, 2001
    officially released March 19, 2002

      Robert A. Cushman filed a brief for the appellant (plaintiff).

      Richard Blumenthal, attorney general, and Alan N. Ponanski, assistant attorney general, filed a brief for the appellee (defendant).
   Opinion

MIHALAKOS, J.

The plaintiff, Karl W. Funderburk, appeals from the judgment of the trial court dismissing his appeal from the decision of the defendant commissioner of motor vehicles (commissioner) suspending his motor vehicle operator’s license for six months for failing a breath test pursuant to General Statutes § 14-227b. On appeal, he claims that (1) there was insufficient evidence to show that he failed a chemical alcohol test and (2) the hearing officer improperly allowed into evidence the A-44 arrest form and attachments. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our disposition of the plaintiffs appeal. On June 17, 2000, after observing the plaintiffs erratic driving, a Glastonbury police officer followed the plaintiff into the parking lot at Krauser’s Market convenience store in Glastonbury. After the plaintiff failed three standard field tests, he was arrested and charged with operation of a motor vehicle while under the influence of liquor in violation of General Statutes §§ 14-227a and 14-36. At approximately 11:12 p.m., the plaintiff submitted to a breath test, and his blood alcohol content (BAC) registered at 0.204. A second test was administered at approximately 11:50 p.m. and registered a BAC of 0.198.

Thereafter, the police officer prepared and forwarded a written report to the commissioner. The commissioner suspended the plaintiffs operator’s license for a period of six months. An administrative hearing was held on July 14, 2000, at which the state offered form A-44 and a copy of the supporting documentation, including the officer’s report and a driving while intoxicated arrest processing procedure report. On the basis of the evidence presented at the hearing, the commissioner made findings and suspended the plaintiffs operator’s license. The plaintiffs subsequent appeal to the court pursuant to General Statutes § 4-183 (a) was dismissed. This appeal followed.

Our review of a commissioner’s decision in an administrative appeal is well settled. “[J]udicial review of the commissioner’s action is governed by the Uniform Administrative Procedure Act [General Statutes §§ 4-166 through 4-189], and the scope of that review is very restricted.” (Internal quotation marks omitted.) Bancroft v. Commissioner of Motor Vehicles, 48 Conn. App. 391, 399, 710 A.2d 807, cert. denied, 245 Conn. 917, 717 A.2d 234 (1998).

The plaintiff must prove that the commissioner’s decision to suspend his operator’s license was “clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record . . . .” General Statutes § 4-183 (j) (5); see Schallenkamp v. DelPonte, 229 Conn. 31, 39, 639 A.2d 1018 (1994). “Judicial review of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency’s findings of basic fact and whether the conclusions drawn from those facts are reasonable. . . . Substantial evidence exists if the administrative record affords a substantial basis of fact from which the fact in issue can be reasonably inferred.” (Internal quotation marks omitted.) Schallenkamp v. DelPonte, supra, 40.

“In determining whether an administrative finding is supported by substantial evidence, a court must defer to the agency’s assessment of the credibility of the witnesses and to the agency’s right to believe or disbelieve the evidence presented by any witness ... in whole or in part. . . . Basically, an agency is not required to use in any particular fashion any of the materials presented to it so long as the conduct of the hearing is fundamentally fair.” (Citation omitted; internal quotation marks omitted.) Bancroft v. Commissioner of Motor Vehicles, supra, 48 Conn. App. 400.

The plaintiff first argues that there was insufficient evidence to support the administrative hearing officer’s conclusion that he failed a chemical alcohol test. Specifically, he argues that because none of the blood alcohol levels listed on form A-44 described the ratio of alcohol to blood, such evidence was insufficient to prove that the ratio of alcohol in his blood was sixteen-hundredths of 1 percent or more of alcohol, by weight within the meaning of § 14-227b (i) (3) (B). We disagree.

The plaintiff submitted to a breath test conducted with a standard intoxilizer alcohol analyzer. The police report reveals that the results of the chemical alcohol test were 0.204 and 0.198, respectively. In addition, the printed slips from the intoxilizer reveal, under the column labeled BAC, that the test results were 0.204 and 0.198. Furthermore, the plaintiff presented no evidence that his BAC was measured by anything other than weight. After reviewing the record and briefs before us, we conclude that the commissioner’s decision to suspend the plaintiffs operator’s license was not clearly erroneous and was supported by substantial evidence.

The plaintiff next claims that the hearing officer improperly considered form A-44 and attachments because they were not originals. In addition, he argues that the hearing officer improperly admitted the results of the chemical alcohol test into evidence because there was not substantial evidence to show that his BAC was measured by weight. We disagree.

“Administrative tribunals are not strictly bound by the rules of evidence ... so long as the evidence is reliable and probative. ... It is within the province of the hearing officer to determine the credibility of evidence. . . . The plaintiff bears the burden of demonstrating that a hearing officer’s evidentiary ruling is arbitrary, illegal or an abuse of discretion.” (Citations omitted; internal quotation marks omitted.) Roy v. Commissioner of Motor Vehicles, 67 Conn. App. 394, 397, 786 A.2d 1279 (2001).

At the hearing, the state offered an original form A-44 with copies of the supporting documents to which the plaintiff objected. Prior to admitting the documents into evidence, the hearing officer considered each of the plaintiffs five objections. In addition, the plaintiff was offered a continuance to subpoena the police officer to testify regarding the records. The plaintiff declined the invitation, reasoning that it was not his burden to subpoena the officer. Regardless of whether the officer testified, “the hearing officer could properly rely on the record . . . even with the conflicting information in the record.” Fiolek v. Commissioner of Motor Vehicles, 45 Conn. Sup. 489, 497, 722 A.2d 1237 (1997), aff'd, 51 Conn. App. 486, 721 A.2d 1260, cert. denied, 248 Conn. 906, 731 A.2d 306 (1999).

After reviewing the record and briefs, we conclude that the hearing officer did not abuse his discretion in admitting into evidence form A-44 and attachments, including the results of the chemical alcohol test.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 14-227b (g) provides in relevant part: “The hearing shall be limited to a determination of the following issues: (1) Did the police officer have probable cause to arrest the person for operating a motor vehicle while under the influence of intoxicating liquor or drug or both or while such person’s ability to operate such motor vehicle was impaired by the consumption of intoxicating liquor; (2) was such person placed under arrest; (3) did such person refuse to submit to such test or analysis or did such person submit to such test or analysis, commenced within two hours of the time of operation, and the results of such test or analysis indicated that such person had an elevated blood alcohol content; and (4) was such person operating the motor vehicle. . . .”

       “The A-44 form is used by the police to report an arrest related to operating a motor vehicle under the influence and the results of any sobriety tests administered or the refusal to submit to such tests.” Roy v. Commissioner of Motor Vehicles, 67 Conn. App. 394, 396 n.3, 786 A.2d 1279 (2001).

       General Statutes § 4-183 (a) provides in relevant part: “A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision may appeal to the Superior Court as provided in this section. . . .”

       General Statutes § 4-183 Q) provides in relevant part: “The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court shall affirm the decision of the agency unless the court finds that substantial rights of the person appealing have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) In violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error of law; (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. ...”

       The plaintiff made the following objections to the admission of the form A-44 and attached documents: (1) the documents offered as originals were merely copies; (2) the officer’s report was incomplete because it did not include a copy of a temporary license; (3) the times were inconsistent between the report and the copy; (4) the documents were more prejudicial than probative; and (5) the commissioner of public safety has not yet adopted regulations governing the conduct of chemical testing in accordance with Public Acts 1999, No. 99-218, § 4.


author: STOUGHTON, J.

text:
    STATE OF CONNECTICUT v. GARY BELL
    (AC 21374)
    Mihalakos, Flynn and Stoughton, Js.
    Argued December 11, 2001
    officially released March 19, 2002

      Moira L. Buckley, deputy assistant public defender, for the appellant (defendant).

      C. Robert Satti, Jr., senior assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and Matthew C. Couloute, Jr., former assistant state’s attorney, for the appellee (state).
   Opinion

STOUGHTON, J.

The defendant, Gary Bell, appeals from the judgment of conviction, rendered after a jury trial, of attempt to commit murder in violation of General Statutes §§ 53a-49 and 53a-54a (a), assault in the first degree in violation of General Statutes § 53a-59 (a) (5), conspiracy to commit murder in violation of General Statutes §§ 53a-48 and 53a-54a (a), and reckless endangerment in the first degree in violation of General Statutes § 53a-63 (a). On appeal, the defendant claims that the trial court improperly denied his motion for a judgment of acquittal because the state failed to present sufficient evidence to support his conviction of attempt to commit murder and conspiracy to commit murder. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. For a number of years, the defendant, the codefendant Glenn Jones and the victim, Edward Beltran, all had been selling drugs on the comer of Harral Avenue and James Street in Bridgeport. Sometime before July 17, 1998, Beltran was involved in a dispute with a drug seller who worked for Jones. Jones subsequently learned of the dispute. At around midnight on July 17, 1998, Beltran drove to Gonzalez’s Grocery with his former girlfriend, Paula Cifaldi, to purchase some items. The store is located at the comer of Harral Avenue and James Street. Beltran parked in front of the store on James Street, exited his car and entered the store after briefly talking with one or more persons who were standing outside. Cifaldi, who remained in the car, recognized Jones, who was standing with a group of people in front of the store. After Beltran entered the store, Cifaldi overheard Jones say to an unidentified person: “All these n—s, they ain’t gonna play me no more, they can’t come around and do this to me no more, watch, you all see, you all see.” At some point, Beltran came out to the car to check if Cifaldi was all right and then reentered the store. Sometime thereafter, the defendant and Jones entered the store.

While Beltran was talking with a store employee, Jones stood behind Beltran and made a hissing sound. When Beltran turned to look at Jones, he shook his head and walked away. At that time, the defendant was at the back of the store. Beltran continued talking with the store employee unconcerned by Jones’ conduct, but when he looked out the door and saw the defendant and Jones standing together in front of the store, he felt uneasy.

As Beltran left the store to return to his car, the defendant and Jones blocked the front door of the store. Beltran walked around them without incident, but as he opened the driver’s side door of the car, the defendant and Jones, who were now standing on the sidewalk in front of the store, fired handguns at the car, shattering the front windshield. Beltran ducked down beside the car and told Cifaldi to get down. He then called out that he had been hit in the hope that the defendant and Jones would stop firing. A period of silence followed, during which Beltran again attempted to get into the car, and Cifaldi started to get up, thinking that the shooting had ended. The defendant and Jones began firing again, and Beltran crouched down and moved to the back of the car on the driver’s side. The defendant then jumped out into the middle of the street and fired at Beltran as he tried to hide behind the car. The defendant shot Beltran five times, causing him to suffer wounds to his abdomen, right buttock, right thigh, right flank and left elbow.

After they stopped firing the second time, the defendant and Jones fled the scene, running with guns in their hands down James Street toward Harral Avenue. Beltran managed to get into the car and drive to a nearby police station. At the station, he got out of the car and collapsed onto the ground. Soon thereafter, he was taken to a hospital, where he was treated for his gunshot wounds. The defendant and Jones were subsequently arrested and charged in connection with the shooting.

After a jury trial, the defendant was convicted of attempt to commit murder, assault in the first degree, conspiracy to commit murder and reckless endangerment in the first degree. Prior to sentencing, Jones filed a motion for a judgment of acquittal and a motion for a new trial. The defendant joined in those motions. The court denied both motions and sentenced the defendant to a total effective term of imprisonment of twenty years, execution suspended after five years, with five years probation. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the court improperly denied his motion for a judgment of acquittal because the state failed to present sufficient evidence to support his conviction of attempt to commit murder. Specifically, he argues that the state presented insufficient evidence to prove beyond a reasonable doubt that he intended to cause the death of Beltran. We disagree.

“In reviewing a sufficiency of the evidence claim, we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Burton, 258 Conn. 153, 175, 778 A.2d 955 (2001).

“The question on appeal is not whether we believe that the evidence established guilt beyond a reasonable doubt, but rather whether, after viewing the evidence in the light most favorable to sustaining the judgment, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. . . . While the jury may not speculate to reach a conclusion of guilt, [it] may draw reasonable, logical inferences from the facts proven to reach a verdict. . . . Deference is given to the trier of fact who had the opportunity to observe the conduct, demeanor and attitude of the trial witnesses and to assess their credibility. . . . Where there is sufficient evidence to support a reasonable inference that the defendant intended to commit the crime charged, whether such an inference should be drawn is properly a question for the jury to decide. . . .

“In evaluating evidence, the [jury] is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. ... On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the jury’s verdict of guilty.” (Internal quotation marks omitted.) State v. Conde, 67 Conn. App. 474, 483, 787 A.2d 571 (2001), cert. denied, 259 Conn. 927, 793 A.2d 251 (2002).

“While the jury must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. ... If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt.” (Citation omitted.) State v. Pinnock, 220 Conn. 765, 771, 601 A.2d 521 (1992).

“The test for determining whether the evidence is sufficient to sustain a verdict is thus whether the [jury] could have reasonably concluded, upon the facts established and the reasonable inferences drawn therefrom, that the cumulative effect of the evidence was sufficient to justify the verdict of guilty beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Jefferson, 67 Conn. App. 249, 256, 786 A.2d 1189 (2001), cert. denied, 259 Conn. 918, 791 A.2d 566 (2002).

To convict the defendant of attempt to commit murder, the jury had to find beyond a reasonable doubt that he acted with the specific intent to cause Beltran’s death. See General Statutes §§ 53a-49, 53a-54a and 53a-3 (11). “Because direct evidence of the accused’s state of mind is rarely available, intent is generally proven by circumstantial evidence. Therefore, intent is often inferred from conduct, as well as from the cumulative effect of the circumstantial evidence and the rational inferences drawn therefrom. . . . For example, [i]ntent to cause death may be inferred from the type of weapon used, the maimer in which it was used, the type of wound inflicted and the events leading to and immediately following the death.” (Citation omitted; internal quotation marks omitted.) State v. Murray, 254 Conn. 472, 479-80, 757 A.2d 578 (2000).

In the present case, the state presented evidence from which the jury reasonably could have found that the defendant intended to cause Beltran’s death. Specifically, the state presented evidence that for a number of years, the defendant, Jones and Beltran all had been selling drugs in the area where the shooting occurred. About two weeks before the shooting, Beltran was involved in a dispute with a drug seller who worked for Jones. On the night that he was shot, Beltran saw the defendant and Jones at Gonzalez’s Grocery while he was purchasing some items at the store. As Beltran left the store to return to his car, the defendant and Jones blocked the front door of the store. As Beltran proceeded to his car and opened the driver’s side door, the defendant and Jones fired a fusillade of bullets at the car, shattering the front windshield. The state presented ballistics evidence that indicated that a semiautomatic pistol and a revolver were used in the shooting.

Beltran then called out that he had been hit in the hope that the defendant and Jones would stop firing. After a period of silence, the defendant and Jones began firing again from about a car distance away. Beltran crouched down and moved to the back of the car on the driver’s side. The defendant then jumped out into the middle of the street and fired shots directly at Beltran as he tried to hide behind the car. The defendant shot Beltran five times, causing him to suffer wounds to his abdomen, right buttock, right thigh, right flank and left elbow. The treating surgeon testified that Beltran “was lucky because . . . the bullets missed the vital organs.” After they stopped firing the second time, the defendant and Jones fled the scene without attempting to aid or summon medical assistance for Beltran.

We conclude that the jury reasonably could have inferred from the cumulative effect of all the circumstantial evidence that the defendant fired at Beltran with the intent to cause his death. Therefore, the evidence presented at trial, construed in the light most favorable to sustaining the verdict, was sufficient to support the jury’s determination that the defendant intended to cause Beltran’s death. See State v. Delgado, 247 Conn. 616, 623-24, 725 A.2d 306 (1999). Accordingly, the defendant’s claim that the state failed to present sufficient evidence to support Ms conviction of attempt to commit murder is without merit.

II

The defendant also claims that the court improperly demed Ms motion for a judgment of acqmttal because the state failed to present sufficient evidence to support his conviction of conspiracy to commit murder. Specifically, he argues that the state presented insufficient evidence to prove beyond a reasonable doubt that he and Jones agreed to cause the death of Beltran. We disagree.

We reiterate briefly our standard of review of a sufficiency of the evidence claim. “We first construe the evidence most favorably to upholding the defendant’s conviction, then ask whether a jury, upon the facts so construed and the reasonable inferences that follow, could have found the elements of conspiracy to commit murder proven beyond a reasonable doubt. . . . M conductmg our review, we are mindful that the finding of facts, the gaugmg of witness credibility and the choosmg among competing inferences are functions within the exclusive provmce of the jury, and, therefore, we must afford those determinations great deference.” (Citation omitted.) State v. Conde, supra, 67 Conn. App. 490.

“To establish the crime of conspiracy under § 53a-48 ... it must be shown that an agreement was made between two or more persons to engage in conduct constituting a crime and that the agreement was followed by an overt act in furtherance of the conspiracy by any one of the conspirators. The state must also show intent on the part of the accused that conduct constituting a crime be performed. . . . Further, the prosecution must show both that the conspirators intended to agree and that they mtended to commit the elements of the underlying offense.” (Internal quotation marks omitted.) State v. Booth, 250 Conn. 611, 657-58, 737 A.2d 404 (1999), cert. denied sub nom. Brown v. Connecticut, 529 U.S. 1060, 120 S. Ct. 1568, 146 L. Ed. 2d 471 (2000).

“To prove the offense of conspiracy to commit murder, the state must prove two distinct elements of intent: that the conspirators intended to agree; and that they intended to cause the death of another person.” State v. Pinnock, supra, 220 Conn. 771. “Intent is generally proven by circumstantial evidence because direct evidence of the accused’s state of mind is rarely available. . . . [I]ntent is often inferred from conduct . . . and from the cumulative effect of the circumstantial evidence and the rational inferences drawn therefrom.” (Citations omitted; internal quotation marks omitted.) State v. Henry, 253 Conn. 354, 367, 752 A.2d 40 (2000). “In a conspiracy prosecution, when determining both a defendant’s specific intent to agree and his specific intent that the criminal acts be performed, the jury may rely on reasonable inferences from facts in the evidence and may develop a chain of inferences, each link of which may depend for its validity on the validity of the prior link in the chain.” (Internal quotation marks omitted.) State v. Bond, 49 Conn. App. 183, 196, 713 A.2d 906, cert. denied, 247 Conn. 915, 722 A.2d 808 (1998).

“While the state must prove an agreement [to commit murder], the existence of a formal agreement between the conspirators need not be proved because [i]t is only in rare instances that conspiracy may be established by proof of an express agreement to unite to accomplish an unlawful purpose. . . . [T]he requisite agreement or confederation may be inferred from proof of the separate acts of the individuals accused as coconspirators and from the circumstances surrounding the commission of these acts. . . . Further, [Conspiracy can seldom be proved by direct evidence. It may be inferred from the activities of the accused persons.” (Internal quotation marks omitted.) State v. Torres, 242 Conn. 485, 491-92, 698 A.2d 898 (1997).

In the present case, the state presented evidence from which the jury reasonably could have found that the defendant and Jones agreed to cause the death of Beltran. Specifically, the state presented evidence that for a number of years the defendant, Jones and Beltran all had been selling drugs in the area where the shooting occurred. About two weeks before the shooting, Beltran was involved in a dispute with a drug seller who worked for Jones. Beltran testified that, prior to that incident, there had been additional drug related disputes between himself and both the defendant and Jones.

On the night he was shot, Beltran saw the defendant and Jones together at Gonzalez’s Grocery while he was purchasing some items at the store. A short time before the defendant and Jones shot Beltran, Beltran’s former girlfriend overheard Jones say to an unidentified person: “All these n—s, they ain’t gonna play me no more, they can’t come around and do this to me no more, watch, you all see, you all see.” Sometime thereafter, Jones and the defendant entered the store.

While Beltran was talking with a store employee, Jones stood behind Beltran and made a hissing sound. When Beltran turned to look at Jones, he shook his head and walked away. At that time, the defendant was at the back of the store. As Beltran left the store to return to his car, the defendant and Jones blocked the front door of the store. As Beltran proceeded to his car and opened the driver’s side door, the defendant and Jones fired a fusillade of bullets at the car, shattering the front windshield. Beltran then called out that he had been hit in the hope that the defendant and Jones would stop firing. After a period of silence, the defendant and Jones began firing again from about a car distance away. Beltran crouched down and moved to the back of the car on the driver’s side. The defendant then jumped out into the middle of the street and fired shots directly at Beltran as he tried to hide behind the car, hitting him repeatedly. After they stopped firing the second time, the defendant and Jones fled the scene together.

From those facts, the jury reasonably could have inferred that the defendant and Jones agreed to cause the death of Beltran. Although the parties presented two different scenarios of the incident, the jury chose to accept the state’s version and to reject the defendant’s. “In such cases, we defer to the jury’s assessment of credibility.” State v. Barber, 64 Conn. App. 659, 666, 781 A.2d 464, cert. denied, 258 Conn. 925, 783 A.2d 1030 (2001). “On issues where the evidence allows room for reasonable differences of opinion among fair-minded people, if the conclusion of the jury is one that reasonably could have been reached, it must stand even though the trial court might have reached a different result. ... A verdict should not be set aside . . . where it is apparent that there was some evidence on which the jury might reasonably have reached its conclusion.” (Internal quotation marks omitted.) Weiss v. Bergen, 63 Conn. App. 810, 813-14, 779 A.2d 195, cert. denied, 258 Conn. 908, 782 A.2d 1254 (2001).

After carefully reviewing the record, we conclude that the evidence adduced at trial, construed in the light most favorable to sustaining the verdict, was sufficient to support the jury’s determination that the defendant and Jones intended to agree to cause Beltran’s death. Accordingly, the defendant’s claim that the state failed to present sufficient evidence to support his conviction of conspiracy to commit murder is without merit, and, therefore, the trial court properly denied the defendant’s motion for a judgment of acquittal.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant also claims that (1) the trial court improperly accepted a legally inconsistent jury verdict in violation of his state and federal due process rights to be acquitted unless proven guilty of each element of the charged offense beyond a reasonable doubt and (2) the prosecutor engaged in misconduct during his summation, thereby violating his constitutional right to a fair trial. Pursuant to a letter dated December 3, 2001, the defendant’s counsel notified this court that the defendant would pursue only the sufficiency of evidence claims. The defendant’s counsel reiterated that decision at oral argument. Accordingly, the defendant’s additional claims are deemed abandoned.

       The defendant and Jones were tried in a joint trial. Jones was convicted of attempt to commit murder in violation of §§ 53a-49 and 53a-54a (a), assault in the first degree in violation of § 53a-59 (a) (5), conspiracy to commit murder in violation of §§ 53a-48 and 53a-54a (a), reckless endangerment in the first degree in violation of § 53a-63 (a), criminal possession of a firearm in violation of General Statutes § 53a-217 and carrying a pistol without a permit in violation of General Statutes § 29-35 (a). Jones has filed a separate appeal.

       Beltran testified that one of the guns was a “Glock,” which is a semiautomatic pistol manufactured by Glock, Inc. The state presented ballistics evidence that indicated that a Glock gun may have been used in the shooting.

       Jones and the defendant were charged both as principals and accessories in each of the charges. “To be found guilty of accessorial liability under [General Statutes] § 53a-8, this statute requires proof of a dual intent: that the accessory have the intent to aid the principal and that in so aiding he intend to commit the offense with which he is charged.” (Emphasis in original; internal quotation marks omitted.) State v. Ortiz, 47 Conn. App. 333, 345, 705 A.2d 554 (1997), cert. denied, 244 Conn. 902, 710 A.2d 175 (1998).

       Beltran testified that, prior to this incident, there had been additional drug related disputes between himself and both the defendant and Jones.


text:
    ALBERT JANUSAUSKAS v. RICHARD A. FICHMAN
    (AC 19521)
    Foti, Mihalakos and Healey, Js.
    Argued October 17, 2000
    officially released March 19, 2002

      Edward F. Hennessey, for the appellant (plaintiff).

      Kerry R. Callahan, with whom was Barbara A. Frederick, for the appellee (defendant).
   Opinion

MIHALAKOS, J.

The plaintiff, Albert Janusauskas, appeals from the judgment rendered for the defendant, Richard A. Fichman, after the trial court denied the plaintiffs motion to set aside the verdict and for a new trial. Specifically, the plaintiff claims that the court improperly (1) directed a verdict for the defendant on the plaintiffs breach of contract claim, (2) directed a verdict for the defendant on the plaintiffs claim under the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., (3) denied the plaintiff the right to cross-examine the defendant’s expert witness and (4) charged the jury on the issues of negligence and lack of informed consent. We reverse the judgment of the trial court in part and affirm it in part.

The following facts and procedural histoiy are relevant to our resolution of this appeal. The plaintiff filed an amended eight count complaint dated July 23, 1997, against the defendant, who is an ophthalmologist. The plaintiff subsequently withdrew five of the eight counts, leaving only the first count (medical malpractice/lack of informed consent), fourth count (breach of contractual warranty) and the seventh count (violation of CUTPA). The case proceeded to trial and, after the completion of the plaintiffs case, the defendant filed a motion for a directed verdict as to the fourth and seventh counts. At the close of the evidence, the court directed the jury to return a verdict in favor of the defendant on counts four and seven of the revised complaint. As directed, the jury returned a verdict for the defendant on counts four and seven. The jury also found for the defendant with regard to count one and awarded no damages to the plaintiff. The plaintiff then filed this appeal.

The jury reasonably could have found the following facts. In 1993, the plaintiff, who was fifty years old, first consulted the defendant concerning his severe myopia. Since grade school, the condition required the plaintiff to wear glasses with corrective lenses. Sometime in the 1980s, the plaintiff learned of a procedure called radial keratotomy (RK), the purpose of which is to reduce nearsightedness. The plaintiff consulted with several ophthalmologists to determine if the procedure would correct his nearsightedness so that he would no longer need to wear corrective glasses or contact lenses. Each physician told the plaintiff that his myopia was so great that he would not benefit from RK.

In 1991 or 1992, the defendant attended a two day seminar conducted by John Casebeer, a physician. The seminar included the sale of medical instruments and a marketing system for the creation of a profitable RK practice. After attending the seminar, the defendant began performing RK surgery and implementing the marketing plan. The defendant advertised on radio and ran more than 260 print ads between January and May, 1993. The defendant was performing up to thirty-five RK procedures a day at a cost of $1500 per surgery, with a $200 discount when patients paid in cash.

The plaintiff either read or heard one of the defendant’s ads claiming that RK could cure nearsightedness. As a result, the plaintiff visited the defendant’s place of business and read his brochure, which stated, among other things, that the defendant was one of the nation’s leaders in the field of RK.

The plaintiff told the defendant that his goal was to be able to see without the aid of glasses or contact lenses, and that other physicians had told him that he could not achieve that through RK. The defendant told the plaintiff that new procedures existed and that he had successfully operated on patients with myopia as severe as the plaintiffs. The defendant also told the plaintiff that he could achieve 20/40 or 20/50 vision, uncorrected, in his left eye and 20/20 vision, uncorrected, in his right eye. In reality, the defendant followed a chart obtained from the original seminar he attended, which told him how much improvement could be obtained depending on a patient’s eyesight. The actual effect of the procedure, as laid out in the chart and according to prevailing opinion in the medical community at the time, was that no improvement in eyesight would be gained by the plaintiff through the RK procedure. The defendant further told the plaintiff that he, the defendant, was the “best in the business.”

The defendant performed RK surgery on the plaintiff in May, 1993. Following the surgery, the plaintiffs myopia grew worse and his vision became subject to glare during the day and at night. The plaintiffs near vision also became blurred. When the plaintiff asked the defendant if he would achieve his vision goal, the defendant told him that a further enhancement would be required. The defendant performed an enhancement procedure on the plaintiffs eyes in September, 1993. The plaintiff experienced no improvement.

The defendant continued to treat the plaintiff through most of 1995, reassuring him that he needed to be patient and allow his eyes to heal to achieve his eyesight goal. In early 1996, the plaintiff saw Girard Nolan, an ophthalmologist, who advised him that he should not have had the RK surgery. Nolan testified at a 1997 deposition that he would not have performed RK surgeiy on the plaintiff and that the best outcome attainable for the plaintiff in 1993 was a lack of improvement.

The plaintiff later sought a medical opinion regarding his condition from Phillip Shelton, another ophthalmologist, who testified that the chances of the plaintiff achieving his vision goal as a result of the RK performed by the defendant were virtually nonexistent.

Our standard of review concerning directed verdicts is well settled. “Directed verdicts are historically not favored .... A trial court should direct a verdict for a defendant if, viewing the evidence in the light most favorable to the plaintiff, a jury could not reasonably and legally reach any other conclusion than that the defendant is entitled to prevail. ... In assessing the evidence, the court should weigh both direct and circumstantial evidence, including all reasonable inferences to be drawn therefrom.” (Citations omitted; internal quotation marks omitted.) Kriz v. Coldwell Banker Real Estate, 67 Conn. App. 688, 692, 789 A.2d 1091 (2002).

I

The plaintiffs first claim is that the court improperly directed a verdict for the defendant with regard to count four of the plaintiffs complaint, which alleged a contract claim based on the breach of a promise, warranty or guaranty. We agree.

“A breach of contract claim is a distinct claim that may arise from the same facts and may exist where the physician and patient contract for a specific result.” Rumbin v. Baez, 52 Conn. App. 487, 491, 727 A.2d 744 (1999). “A true implied contract can only exist where there is no express one. It is one which is inferred from the conduct of the parties though not expressed in words. ... It is not fatal to a finding of an implied contract that there were no express manifestations of mutual assent if the parties, by their conduct, recognized the existence of contractual obligations.” (Citation omitted; internal quotation marks omitted.) Sandella v. Dick Corp., 53 Conn. App. 213, 219, 729 A.2d 813, cert. denied, 249 Conn. 926, 733 A.2d 849 (1999).

An implied “contractual promise cannot be created by plucking phrases out of context; there must be a meeting of the minds between the parties. . . . In order to support contractual liability, the [defendant’s] representations must be sufficiently definite to manifest a present intention on the part of the [defendant] to undertake immediate contractual obligations to the plaintiff.” (Citations omitted; internal quotation marks omitted.) Burnham v. Karl & Gelb, P.C., 50 Conn. App. 385, 389, 717 A.2d 811 (1998), aff'd, 252 Conn. 153, 745 A.2d 178 (2000).

The defendant told the plaintiff that through RK he could get the plaintiffs eyesight to 20/40 or 20/50, uncorrected, in his left eye and 20/20, uncorrected, in his right eye. Prevailing medical opinion at the time and the defendant’s own surgical guidelines did not allow for that level of improvement, given the plaintiffs eyesight at that time and the state of RK technology. The plaintiff paid the defendant, underwent the procedure and experienced a worsening of his vision rather than an improvement. Following RK surgery, the plaintiff suffered glare during the day and at night, and his near vision became blurred.

When the plaintiff found that his eyesight was worse after RK, the defendant told him that a further enhancement would achieve the desired result of 20/50 or 20/ 40 vision, uncorrected, in his left eye and 20/20 vision, uncorrected, in his right eye. The plaintiff underwent an enhancement procedure performed by the defendant. The plaintiff experienced no improvement in his vision.

There was no express contract between the defendant and the plaintiff. A contract can be inferred, however, from the conduct of the parties. The defendant’s representations regarding the plaintiffs vision improvement through RK were definite enough to manifest his intention to immediately undertake to improve the plaintiffs vision through RK. The parties, further, through their actions, inferentially recognized the existence of their contractual obligations. The plaintiff paid the defendant, and the defendant performed the RK procedure on the plaintiffs eyes. The plaintiff then subjected himself to another procedure that the defendant performed to help achieve the result for which the parties originally had contracted.

“The rules controlling appellate review of a directed verdict are well settled. Directed verdicts are not generally favored. A trial court’s decision to direct a verdict can be upheld only when the jury could not reasonably and legally have reached any other conclusion. . . . We review a trial court’s decision to direct a verdict for the defendant by considering all of the evidence, including reasonable inferences, in the light most favorable to the plaintiff.” (Internal quotation marks omitted.) Morales v. Pentec, Inc., 57 Conn. App. 419, 425, 749 A.2d 47 (2000). “The verdict will be set aside and judgment directed only if we find that the jury could not reasonably and legally have reached their conclusion.” (Internal quotation marks omitted.) Sandella v. Dick Corp., supra, 53 Conn. App. 218.

Because the plaintiff introduced at trial sufficient evidence so that the jury, reasonably and legally, could have found there was an implied contract, it was improper for the trial court to direct a verdict for the defendant. The court should have left the issue for the jury to decide.

II

The plaintiff next claims that the court improperly directed a verdict for the defendant on the plaintiff s CUTPA claim. We disagree.

Our Supreme Court has made clear, in Haynes v. Yale-New Haven Hospital, 243 Conn. 17, 699 A.2d 964 (1997), that a CUTPA claim can be successfully brought against a physician. In that case, our Supreme Court stated: “[0]nly allegations of unfair, unconscionable, or deceptive methods, acts, or practices in the conduct of the entrepreneurial, commercial, or business aspect of a physician’s practice may be brought under the [consumer protection act]. Allegations that concern misconduct in the actual performance of medical services or the actual practice of medicine would be improper.” (Internal quotation marks omitted.) Id., 37, quoting Nelson v. Ho, 222 Mich. App. 74, 83-84, 564 N.W.2d 482 (1997).

In Haynes, the plaintiffs decedent, a rural letter carrier for the United States postal service, was seriously injured when her vehicle was struck head-on by another vehicle. Haynes v. Yale-New Haven Hospital, supra, 243 Conn. 20. The decedent was transported via ambulance to Yale-New Haven Hospital (Yale-New Haven), where she was admitted to the emergency department. Id., 37. The decedent received emergency care from Yale-New Haven for a fractured left leg and pelvis. Id. After receiving care for approximately one and one-half hours, the decedent’s abdomen began to expand. Id. Emergency exploratory surgery was performed on the decedent and it was discovered that her spleen had been lacerated, which resulted in blood filling her abdomen. Id. The decedent’s circulation failed on the operating table, she went into cardiac arrest and subsequently died. Id.

The plaintiff thereafter brought an action against Yale-New Haven, alleging medical malpractice and a violation of CUTPA. Id., 21. On the CUTPA claim, the plaintiff alleged that Yale-New Haven had engaged in unfair and deceptive trade practices because, although Yale-New Haven was certified as a major trauma center, it had not met the standards of care required of such a center. Id. In essence, that claim was identical to the substance of the plaintiffs medical malpractice claim.

The court in Haynes concluded that although physicians and other health care providers are subject to CUTPA, medical malpractice does not fall under the act. Id., 35. The court held that “only the entrepreneurial or commercial aspects of the profession are covered ... by CUTPA.” Id., 34.

“[T]he touchstone for a legally sufficient CUTPA claim against a health care provider is an allegation that an entrepreneurial or business aspect of the provision of services is implicated, aside from medical competence or aside from medical malpractice based on the adequacy of staffing, training, equipment or support personnel. Medical malpractice claims recast as CUTPA claims cannot form the basis for a CUTPA violation.” (Internal quotation marks omitted.) Sherwood v. Danbury Hospital, 252 Conn. 193, 213, 746 A.2d 730 (2000); see also Gadson v. Newman, 807 F. Sup. 1412, 1419-20 (C.D. Ill. 1992) (contract for medical service should not be distinguished from ordinary commercial contracts for purposes of regulation under Illinois consumer fraud act; only actual practice of medicine, which is regulated by profession itself, is immunized from jurisdiction of consumer fraud act); Nelson v. Ho, supra, 222 Mich. App. 83 (physicians engaging in trade or commerce subject to Michigan consumer protection act only when partaking in entrepreneurial, commercial or business aspect of medicine).

Under CUTPA “[a]n act or practice is deceptive if three conditions are met. First, there must be a representation, omission, or other practice likely to mislead consumers. Second, the consumers must interpret the message reasonably under the circumstances. Third, the misleading representation, omission, or practice must be material—that is, likely to affect consumer decisions or conduct.” (Internal quotation marks omitted.) Southington Savings Bank v. Rodgers, 40 Conn. App. 23, 28, 668 A.2d 733 (1995), cert. denied, 236 Conn. 908, 670 A.2d 1307 (1996).

In its oral ruling on the defendant’s motion for a directed verdict, the court stated that it would not reserve its ruling until the conclusion of trial. Instead, the court ruled in favor of the defendant by stating the following: “Then I grant the motion for directed verdict [on the breach of contract claim] and [the CUTPA claim].” In relation to the CUTPA claim, the court explained that “the general rule is [that] the entrepreneurial aspects of [the] practice of medicine . . . are covered by CUTPA. . . . ‘Medical malpractice claims recast as CUTPA claims cannot form the basis of a CUTPA violation. To hold otherwise would transform every claim from medical malpractice into a CUTPA claim.’ There has been no evidence whatsoever of any advertising. No exhibits of advertising have been produced. The only thing remotely involved is, I think, plaintiff said at one point he’d heard something, but exactly what is not in evidence. So, there’s no evidence at all to satisfy either the entrepreneurial requirement or any advertising. ” Although the court gave the plaintiff the option of withdrawing the CUTPA claim before the end of the trial so that the jury would not have to be directed to find against the plaintiff on that claim, the court’s ruling was unequivocal.

After close scrutiny of the trial transcript, we agree with the plaintiff that he presented some evidence during his case-in-chief in relation to his CUTPA claim. We conclude, however, based on an examination of that evidence, that the evidence was insufficient to allow the issue to be decided by the jury.

The plaintiff testified that he was drawn to the defendant’s practice by either a radio or print advertisement that stated that the RK procedure could cure nearsightedness. On cross-examination, the plaintiff admitted, however, that he did not construe the advertisement as representing that it could cure nearsightedness in all people. Further, the plaintiff offered certain pamphlets and brochures as evidence as well, but never asserted that they were deceptive or somehow unfair. Finally, the plaintiff testified that the defendant said he was “the best in the business” and made the plaintiff confident in his abilities to perform the RK procedure by telling him he had been successful on similar candidates. Nevertheless, although those statements and others may have represented medical malpractice to some extent or the makings of an implied contract, the plaintiff failed to present evidence during his case-in-chief to substantiate that those statements were deceptive, unfair or unconscionable in terms of the entrepreneurial or commercial aspects of the defendant’s practice. Accordingly, we conclude that the evidence presented by the plaintiff in relation to his CUTPA claim was insufficient to allow the jury to find reasonably and legally in his favor, even when viewed in the light most favorable to the plaintiff. The plaintiffs claim that the court improperly directed a verdict for the defendant, therefore, is unavailing.

Ill

The plaintiff next claims that the trial court improperly denied him the opportunity effectively to cross-examine the defendant’s expert witness by refusing to allow him to use the witness’ deposition testimony. We disagree.

“ [A] trial court may exercise its discretion with regard to evidentiary rulings, and the trial court’s rulings will not be disturbed on appellate review absent abuse of that discretion. ... In our review of these discretionary determinations, we make every reasonable presumption in favor of upholding the trial court’s ruling. . . . Evidentiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the [appellant] of substantial prejudice or injustice. ... [A] party seeking a new trial because of an improper evidentiary ruling has the burden of demonstrating that the error was harmful. . . . When determining that issue in a civil case, the standard to be used is whether the erroneous ruling would likely affect the result. . . . The party is entitled to relief from an erroneous ruling on the admissibility of evidence only if the error is also harmful. . . . [T]he plaintiff [bears the] burden of demonstrating that the erroneous ruling was likely to affect the result of the trial.” (Citations omitted; internal quotation marks omitted.) Bugryn v. Bristol, 63 Conn. App. 98, 111-12, 774 A.2d 1042, cert. denied, 256 Conn. 927, 776 A.2d 1143, cert. denied, 534 U.S. 1019, 122 S. Ct. 544, 151 L. Ed. 2d 422 (2001).

After a close inspection of the record we conclude that the plaintiff has failed to demonstrate that the court’s ruling regarding the cross-examination of Nolan negatively affected the outcome of his case.

IV

The plaintiffs final claim is that the court improperly charged the jmy and refused to give the plaintiffs requested charge. We disagree.

The plaintiff specifically claims that “[rjather than present the case to the jury within the framework of the pleadings, the evidence, the arguments and the requests to charge, the trial court presented a textbook definition of medical malpractice, in general, followed by a textbook definition of informed consent, in general.” We are not persuaded that the court acted improperly.

“Our standard of review on this claim is whether it is reasonably probable that the jury was misled. . . . The test of a court’s charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. . . . Therefore, jury instructions need not be exhaustive, perfect, or technically accurate. Nonetheless, the trial court must correctly adapt the law to the case in question and must provide the jury with sufficient guidance in reaching a correct verdict.” (Internal quotation marks omitted.) Amsden v. Fischer, 62 Conn. App. 323, 328-29, 771 A.2d 233 (2001). “As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury ... we will not view the instructions as improper. In determining whether it was . . . reasonably possible that the jury was misled by the trial court’s instructions, the charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding [it] to a correct verdict in the case.” (Citation omitted; internal quotation marks omitted.) State v. Davis, 255 Conn. 782, 798, 772 A.2d 559 (2001). Having reviewed the court’s charge to the jury, we are not persuaded that an injustice was done to either party.

The judgment is reversed in part and the case is remanded for a new trial on count four of the plaintiffs revised complaint alleging breach of contractual warranty. The judgment is affirmed as to counts one and seven.

In this opinion the other judges concurred.

       At various times throughout the trial, myopia was described as nearsightedness.