text:
    Donald H. Doyle et al. v. James D. Reardon, Conservator (Estate of Lena K. Doyle)
    (5311)
    Dupont, C. J., Daly and Bieluch, Js.
    Argued March 31
    decision released June 16, 1987

      Daniel J. Mahaney, with whom was John D. Mahaney, for the appellant (plaintiff Donald H. Doyle, Jr.)

      James T. Graham, with whom were W. Campbell Hudson and, on the brief, Charles M. Tighe, for the appellee (defendant).
   Dupont, C. J.

This is an appeal by the plaintiff Donald H. Doyle, Jr., from the trial court’s granting of the defendant’s motion to dismiss the plaintiffs’ appeal from the Essex Probate Court. The Probate Court had granted the defendant’s motion for permission to institute suit and to employ counsel. Donald H. Doyle, Jr., is the grandson of Lena K. Doyle. The defendant is the conservator of the estate of Lena K. Doyle. The motion to dismiss in the Superior Court alleged that the court lacked subject matter jurisdiction because the statutory requirements of General Statutes § 45-288 had not been met. The trial court held that the plaintiff was not appealing from an “order, denial or decree” of a court of probate, and further that he was not aggrieved by its action, and, therefore, lacked standing to appeal.

In 1983, Lena K. Doyle conveyed real estate to her grandson, the plaintiff. It is this conveyance which lies at the center of this case. On October 22,1985, a conservator was appointed for the estate of Lena K. Doyle after a hearing initiated by two of her children, in which it was determined that she was incompetent to handle her own affairs. The conservator of the estate thereafter applied for permission to institute suit and to employ counsel to investigate the validity of the transfer and to question “the circumstances surrounding the conveyance of [the] real estate.”

On January 9, 1986, the Probate Court held a hearing on the motion. The court found that the “conservator inquiry is not a frivolous one.” It further found that “[i]t would be in the best interest of Lena K. Doyle to allow the conservator to proceed to Superior Court for a proper determination of the question.” The court stated that the conservator had the power to bring the action “as reasonably implied in Connecticut General Statutes § 45-75 (a) and as properly derived from Connecticut case law in Kleinman v. Marshall, [192 Conn. 479, 472 A.2d 772 (1984)].” In addition, the court reserved the right, upon a report back, to review and act on fees and expenses, after resolution of the action in the Superior Court. It authorized legal fees not in excess of $2500 without the necessity of further action by the court. The court struck out the preprinted words, “And it is ORDERED AND DECREED that,” from its written decision. It subsequently issued, however, a “Decree Allowing Appeal from Probate” in which it twice described its action on the conservator’s motion as an “Order and Decree.”

On appeal to the Superior Court, the plaintiff claimed that he was not accorded federal constitutional due process at the probate hearing, and that the Probate Court did not have jurisdiction to authorize the defendant’s suit or the expenditure of assets of the estate for that purpose. The plaintiff also claimed that an evidentiaryhearing was needed on the defendant’s motion to dismiss in the Superior Court.

The provisions of General Statutes § 45-288 enable “any person aggrieved by any order, denial, or decree” of a Probate Court to appeal to the Superior Court. The statute, therefore, confers standing on a party when there is both (1) an “order, denial, or decree” of a Probate Court and (2) aggrievement resulting to such party therefrom. The plaintiff first claims that an appeal from the Probate Court’s action to the Superior Court was proper because the Probate Court’s action was an order or decree. The trial court concluded that the Probate Court’s decision was not an order or decree because it did not direct or command the conservator to bring a lawsuit, but only “suggested that it would be in the best interest of Lena K. Doyle to allow the conservator” to bring suit in the Superior Court.

The defendant argues that the Probate Court’s action was not a decree because it was not needed for the institution of a suit in this case. The Probate Court, by stating that the conservator had the power to bring an action pursuant to § 45-75 (a) and case law, may have agreed with this contention, to the extent that it believed a ruling by it was not necessary. General Statutes § 45-75 (a) does not specifically authorize suits by a conservator of an estate to set aside real estate conveyances previously made by his ward. The Probate Court relied on this statute, and on Kleinman v. Marshall, supra, for the proposition that the conservator had the authority to bring such a suit. Kleinman itself, although involving a suit to set aside a real estate conveyance previously made by the ward of a conservator, is silent as to whether the conservator first sought permission from the Probate Court to bring the suit, although it is stated that “shortly after [the] appointment,” the conservator sued. It is thus likely that prior permission was not sought.

If, however, prior permission to bring suit is not sought, the conservator proceeds at his peril in terms of recouping the expenses of such a suit, in the event he engages the services of an attorney to prosecute the action. See Elmendorf v. Poprocki, 155 Conn. 115, 230 A.2d 1 (1967). A conservator of an estate only has those powers expressly or impliedly given by statute. In exercising those powers, he is under the supervision and control of the Probate Court. Id., 118. “While a conservator, as any other fiduciary, may act at his peril and on his own personal responsibility, before his ward’s estate can be directly obligated to pay for services rendered to that estate at the request or with the knowledge of the conservator, the Probate Court must expressly approve the necessity and propriety of the utilization of those services and the reasonableness of the charge demanded for them.” Id., 119. Elmendorf interpreted General Statutes § 45-75 (a) as not giving a conservator the authority to bind an estate of a ward to compensate others for services rendered, such as for a real estate commission incurred in the sale of an estate asset. It holds, rather, that a Probate Court must expressly authorize, in advance, or approve subsequently the expenditure of funds by a conservator for that purpose. Id., 119.

Although Elmendorf does not specifically deal with the necessity to obtain prior permission to bring a law suit in order to retrieve an estate asset and to charge the ward’s estate for the costs of such suit, its language is broad enough to include that situation. There is “nothing in § 45-75 of the General Statutes which indicates the legislature intended to allow a conservatrix to bind her ward’s estate to an implied contract . . . without the express approval of the Probate Court.” Id., 119-20. In this case, the conservator sought prior permission to bind his ward’s estate upon the execution of an express contract for legal services. Whether a contract of a conservator is express or implied, prior permission from the Probate Court must be obtained in order to charge the ward’s estate for the costs connected with such contracts, without subjecting the conservator to a risk later of nonrecoupment.

Elmendorf and Kleinman when read together are not inconsistent. The former explicitly established the proposition that General Statutes § 45-75 (a) does not authorize the expenditure of funds by a conservator for expenses unrelated to the support of a ward, and arising from a contract made by a conservator. The latter impliedly established that permission from a Probate Court for a suit to set aside a conveyance need not be obtained. These cases, when read together, establish, therefore, that although permission to bring a suit to set aside a conveyance of a ward is not statutorily mandated, the court must nonetheless approve of any expenditure of the estate’s funds used for the costs involved in such suit.

The relevance of these cases to the present case is their impact on whether the granting of permission to sue and employ counsel is a decree or order of the Probate Court. Since we have interpreted § 45-75 (a) to require authorization of this suit by the Probate Court in order for the conservator to be able to charge this estate for the cost of the suit, the authorization necessarily is a decree. A “decree” is a judicial fiat or pronouncement determining a matter in controversy. Raymond v. Raymond, 109 R.I. 265, 273, 284 A.2d 64 (1971). Such term refers to and encompasses the determination made by the Probate Court in this case.

Although the Probate Court’s authorization of expenses for a lawsuit which was deemed to be in the best interest of the ward may not have required or ordered future litigation, it was as final a judgment or decree which that court, as a court of limited jurisdiction could render. Ramsdell v. Union Trust Co., 202 Conn. 57, 63 n.3, 519 A.2d 1185 (1987). If the conservator here wished to obtain the litigation expenses of a suit to be brought by him, without risk of personal liability later, the only way to do so was to get prior approval from the Probate Court. Neither the Probate Court, nor the trial court on appeal from the Probate Court, had jurisdiction actually to determine whether the conservator was entitled to equitable relief by rescission of the conveyance. Both, however, had the jurisdiction to determine and review de novo, respectively, whether the conservator had reasonable ground to sue the plaintiff in a court of general jurisdiction. Id., 73-74. The determination made by the Probate Court was a decree because the Probate Court adjudicated the propriety of instituting suit and gave authorization of fees up to $2500 in the event suit was instituted. Furthermore, a Probate Court has no authority to give an advisory opinion. See Russell v. Russell, 109 Conn. 187, 205, 145 A.2d 648 (1929). The trial court erred in holding that the Probate Court’s action was not a decree.

The plaintiff next claims that the court erred in holding that he was not aggrieved by the Probate Court’s decree. The plaintiff’s argument is that the defendant’s motion to dismiss should not have been granted without affording him the opportunity to amend his appeal to allege additional facts or to have an evidentiary hearing on the defendant’s motion which would, in his view, establish facts necessary for aggrievement.

The plaintiff relies on Merrimac Associates, Inc. v. DiSesa, 180 Conn. 511, 429 A.2d 967 (1980), and Baskin’s Appeal from Probate, 194 Conn. 635, 484 A.2d 934 (1984), as support for his claim that the trial court should have held an evidentiary hearing on whether he was aggrieved, and that if his pleading could have been amended to state a cause of action, the dismissal by the trial court was improper.

The questions to be determined in Probate Court appeals involving aggrievement are whether a plaintiff has a legally protected interest and whether the action of the Probate Court had an adverse effect on that interest. Bucholz’s Appeal from Probate, 9 Conn. App. 413, 416, 519 A.2d 615 (1987). The plaintiff has no legally protected interest in the estate of Lena Doyle solely by virtue of his blood relationship to her as her grandson or because of any putative inheritance which may come to him, after her death, by will or intestacy. Id., 418.

The plaintiff claims, however, that even if he has no aggrievement as an heir at law, beneficiary, or the natural object of the ward’s bounty, he is, nevertheless, aggrieved because of the facts he could have alleged or could have proven at an evidentiary hearing had one been held by the trial court. Merrimac held that a bidder on real property offered for sale by an estate suffers aggrievement when the executors of the estate voluntarily sought approval from the Probate Court of the sale of the real estate and on their invitation the plaintiff attended a hearing on their application in order to give the plaintiff the opportunity to submit a higher offer to buy. The hearing in that case was continued to a later time, but subsequently advanced to an earlier hour without knowledge of the plaintiff. The Probate Court then approved the sale to the first and lower bidder. In that case, the subject matter of the decree was the real estate to be sold. In this case, the subject matter of the decree was the propriety of a suit to be instituted against the plaintiff. Even without the decree, however, the defendant in this case could have brought suit. Kleinman v. Marshall, supra. Thus, the plaintiff cannot claim aggrievement because the Probate Court granted the defendant’s request.

There is no allegation in the record here or a claim by the plaintiff that a hearing was continued over the objection of the plaintiff or that the plaintiff objected to the closing of the hearing by the Probate Court. The plaintiff received adequate notice of the hearing and, in fact, participated in it. The salient factor in Merrimac for its finding of aggrievement was that the plaintiff was denied a fair procedure in accordance with basic principles of due process. Furthermore, the court noted that General Statutes § 45-238, which was voluntarily invoked by the defendant in that case, required public notice of the hearing on the application for court approval of the sale. That statute contemplates an open and fair sale, and the executors, having voluntarily invoked it, and having invited the plaintiff to bid, conferred upon the plaintiff in Merrimac the right to offer to purchase the real estate, and to due process of law in the Probate Court.

In Baskin’s Appeal from Probate, supra, the court determined that if a pleading could have been amended to assert a cognizable cause of action, an appeal from probate should not be dismissed. The decisional underpinnings of Baskin’s Appeal rest on Prince v. Sheffield, 158 Conn. 286, 259 A.2d 621 (1969). The latter case held that an appeal from probate to the Superior Court is a de novo proceeding which is not limited to the claims raised in the Probate Court, therefore allowing an appellant to present any evidence in the Superior Court which could have been offered in the Probate Court, whether it was offered or not.

In the present case, the plaintiff’s “Reasons for Appeal” included his alleged lack of due process at the hearing in the Probate Court on the defendant’s motion for permission, including the absence of Lena Doyle at that hearing. The lack of due process is not otherwise particularized. He also claims a protected property interest in the real estate involved, that no justiciable controversy was involved in the motion, and that the authorization of expenditures for the suit against him was contrary to the “express direction, wishes and desire of Lena K. Doyle.” None of these alleged reasons is sufficient to assert the aggrievement necessary for a cause of action.

A guardian ad litem for Lena Doyle testified at the Probate Court hearing that a suit to inquire into the circumstances of the conveyance to the plaintiff was in Lena Doyle’s best interest. Once a conservator had been appointed for Lena Doyle, upon the finding by the Probate Court that she was unable to understand financial decisions as of the date of the appointment of a conservator for her, and no appeal was taken, her own testimony at a hearing relating to a financial decision would be incompetent and irrelevant. Kleinman v. Marshall, supra. Whether such a suit was in accord with the wishes, direction or desire of Lena Doyle, therefore, did not matter. Id. The purpose of the probate hearing was to determine if there was probable cause for a suit to set aside the real estate conveyance. The plaintiff had no protected property interest in the suit which could be affected by the Probate Court. Any divestment of his property interest could only be accomplished by the act of a court of general jurisdiction. Ramsdell v. Union Trust Co., supra. The justiciable controversy in the Probate Court was merely whether there was probable cause to institute a lawsuit, and whether assets of the estate should be expended for it.

In addition to the reasons for appeal which the plaintiff did allege, the plaintiff claims, in his briefs in this court and in the trial court, that the trial court should have considered the fact that a lawsuit against him had been initiated in the interval between the closing of the hearing and the decision of the Probate Court made later that same day. He also claims that he was made a party to the motion for permission, after notice to him that his interests might be affected by the motion. Finally, he claims that he had been informed by the Probate Court prior to the hearing that it would be informal and would only establish the jurisdiction of the court to decide the motion, and that a later formal hearing would be held, at which witnesses, such as Lena Doyle, could be present. None of these facts, even if presented and considered by the trial court at an evidentiary hearing, would have established the requisite aggrievement for an appeal by the plaintiff.

Whether a lawsuit was instituted after the hearing cannot change the fact that aggrievement did not exist. The plaintiff was not aggrieved because he has no present interest in the estate of his living grandmother and because the Probate Court had no authority to divest him of the real estate he had acquired from his grandmother. The facts are unlike Merrimac because in that case the Probate Court could effectively cut off the ability of the plaintiff to acquire real estate by either failing to approve a sale to the plaintiff or by approving the sale to another. Moreoever, merely because the plaintiff in this case was given notice of the hearing and participated in the hearing in the Probate Court did not give him the jurisdictional prerequisite or standing to appeal from a decree of that court as an aggrieved person. Participation in a proceeding in a Probate Court does not establish aggrievement. See Zempsky’s Appeal from Probate, 6 Conn. App. 521, 506 A.2d 1050 (1986); Graham v. Estate of Graham, 2 Conn. App. 251, 477 A.2d 158, cert. denied, 194 Conn. 805, 482 A.2d 710 (1984); Urrate v. Izzillo, 1 Conn. App. 17, 19, 467 A.2d 943 (1983).

The plaintiff does not allege or specifically claim any due process violation arising from the informal nature of the hearing on the motion for permission, other than the lack of testimony of Lena Doyle. As previously noted, such testimony, even if favorable to the plaintiff, would not have changed the lack of aggrievement of the plaintiff.

Although the trial court erred in its conclusion that the Probate Court’s action was not a decree or order, it correctly concluded that the plaintiff lacked aggrievement, and therefore had no standing to appeal under General Statutes § 45-288.

There is no error.

In this opinion the other judges concurred.

       In the Probate Court and in the Superior Court, the plaintiffs were Donald H. Doyle, the son of Lena K. Doyle and the father of Donald H. Doyle, Jr., and Donald H. Doyle, Jr. Donald H. Doyle has not appealed to this court. As used in this opinion, plaintiff refers to the appellant, Donald H. Doyle, Jr.

       General Statutes § 45-288 provides in pertinent part: “appeals FROM PROBATE. Any person aggrieved by any order, denial or decree of a court of probate in any matter, unless otherwise specifically provided by law, may appeal therefrom to the superior court for the judicial district in which such court of probate is held.”

       Lena K. Doyle’s children, other than Donald H. Doyle, are Margaret E. Ryan and Richard K. Doyle. Neither is involved in this appeal.

       General Statutes § 45-75 (a) provides in pertinent part: “duties of conservator OF THE ESTATE. APPLICATION FOR DISTRIBUTION OF GIFTS OF income and principal from the estate. . . . The conservator shall manage all the property and apply so much of the net income of the property, and, if necessary, any part of the principal of the property, which is required to support the ward . . . and may sue for and collect all debts due him.”

       The issue of Kleinman v. Marshall, 192 Conn. 479, 472 A.2d 772 (1984), was whether the death of the ward prior to the rendition of the trial court’s judgment caused the case to be nonjusticiable. The court remanded the case for a determination as to whether there was an actual controversy.


source: Caselaw Access Project

author: Hull, J.

license: Public Domain

text:
    Liberty Mutual Life Insurance Company v. Stanley Tucker et al.
    (5067)
    Dupont, C. J., Hull and Spallone, Js.

      Argued April 7
    decision released June 23, 1987

      Lisa Silvestri, with whom were Michael Collins and, on the brief, Larry Levesque, for the appellant (defendant city of Hartford).

      Stanley Tucker, pro se, the appellee (named defendant).

      Kerry A. Lawrence, for the plaintiff.
   Hull, J.

The plaintiff instituted this interpleader action to determine the rights of competing claimants to the proceeds of a fire insurance claim made by the named defendant insured. The trial court held that a municipal tax lien on the insurance proceeds was invalid, and ordered that the funds be paid jointly to the insured and his mortgagee. From that decision, the city of Hartford appeals, claiming the following: (1) the municipal tax lien did comply with the relevant statutes; (2) the city had a valid lien against the insurance proceeds; (3) the city’s certificate of lien continuation (certificate) gave fair and legal notice; (4) the city’s lien should not be invalidated by the inaction of the insurer; and (5) the city’s tax liens should not have been invalidated by the insurer’s choice of interpleader over the use of the statutory process.

The following facts are not in dispute. On June 12, 1983, a fire largely destroyed a building at 121 Allen Place in Hartford. For many years, the defendant Stanley Tucker carried fire insurance on the building with the plaintiff Liberty Mutual Life Insurance Co. (Liberty Mutual). The building was also subject to approximately $39,000 in outstanding municipal tax liens.

On May 11, 1984, Liberty Mutual brought an inter-pleader action under General Statutes § 52-484 to have the court determine which parties were entitled to the insurance proceeds. The plaintiff served Burritt Mutual Savings Bank (Burritt), the mortgagee of the property, T.S.A., Inc. (T.S.A.), the fire loss adjuster, the city of Hartford and Tucker.

The court gave first priority to the claim of T.S.A. for $3040.50. With respect to the city’s tax claims, the court held as follows. Tax liens for the years 1977 through 1981 had been duly filed and recorded by the Hartford tax collector. The notice of intention to claim against insurance proceeds, which is required by General Statutes § 12-173, had not been filed, however. The court therefore held that the city’s omission precluded it from collecting the insurance proceeds, regardless of the court’s additional finding that the insurance company did not follow the statutory notice requirement of General Statutes § 49-73d. The court consequently determined that the claims of Burritt and Tucker were prior in right to that of the city. It ordered that the insurance proceeds be paid to Burritt and Tucker as copayees. This appeal followed.

I

The city’s first claim is that the court erred in holding that its lien did not comply with the relevant statutes, General Statutes §§ 12-173 and 49-73a. Its second claim is that the court erred in holding that the city had not filed a valid lien against the fire insurance proceeds. As they are related, we will address those issues together.

General Statutes § 12-173 provides in relevant part that “[t]he collector of each municipality, by pursuing the method authorized by . . . [General Statutes § ] 12-175, may continue any tax lien existing against any item of real estate to secure the payment of the tax assessed by such municipality thereon, as such tax has been increased by legal interest, fees and charges, by making out and filing, within the time limited by section . . . 12-175, in the office of the town clerk of the town wherein such real estate is situated, a certificate containing the following information: (1) The name of the person against whom such tax appears in the rate bill; (2) a description of such real estate; (3) the principal of such tax due thereon, the amount of which, with interest, if any, and fees and other charges, is secured by such lien; (4) the date or dates when the principal of such tax became due; and (5) a statement giving notice of his intention to file a lien pursuant to sections 12-172 and 49-73a to 49-73Í, inclusive, against the proceeds of any policy of insurance providing coverage for loss or damage caused by fire, if a loss or damage has occurred.”

General Statutes § 49-73a provides in relevant part that all other interests are subject to any tax lien continued pursuant to § 12-173. It provides further that “[n]o such lien shall be valid unless the tax collector . . . files ... a certificate of lien, pursuant to the provisions of section 12-173, giving notice of his intention to claim against [the insurance] proceeds.”

Presumably in response to these statutory provisions, the city filed a lien certificate that set forth as follows: “This certificate is filed pursuant to Public Act 79-342 and 80-207 [General Statutes §§ 49-73a and 12-173] and is intended to give notice the City of Hartford intends to claim against insurance proceeds in the above-described property for taxes secured by this lien and for taxes secured for the years filed with the Town Clerk.”

The trial court held that “[t]he tax continuation certificate relied upon by the City fails to give notice of its ‘intention to file a lien’ on the taxpayer’s fire insurance proceeds pursuant to § 12-173. Furthermore, the fact that it makes no reference to the years for which taxes are due or the total amount claimed to be delinquent hardly constitutes ‘constructive notice of the existence of the lien and the claim of the municipality against such interest in such item of real estate or in such proceeds to the insurance company and to any person having an insurable interest in the real estate or an interest in the proceeds,’ as required under § 49-73c.” We agree.

Statutes related to taxation must be strictly construed. Uniroyal, Inc. v. Board of Tax Review, 182 Conn. 619, 626, 438 A.2d 782 (1981); Pepin v. Danbury, 171 Conn. 74, 83, 368 A.2d 88 (1976); Geckle v. Dubno, 2 Conn. App. 303, 306, 478 A.2d 263 (1984). Any ambiguity in a tax related statute must be construed in favor of the taxpayer. Eastern Connecticut Cable Televison, Inc. v. Montville, 180 Conn. 409, 412, 429 A.2d 905 (1980).

The language of the city’s certificate is deficient in several respects. General Statutes § 12-173 (3) requires inclusion of “the principal of such tax due thereon, the amount of which, with interest, if any, and fees and other charges, secured by such lien.” That information was not present on the city’s certificate. The statute also requires “the date or dates when the principal of such tax became due.” General Statutes § 12-173 (4). That information is not present on the city’s certificate. Finally, the statute requires “a statement giving notice of his intention to file a lien . . . .” General Statutes § 12-173 (5). The city’s certificate mentions only that the city “intends to claim against insurance proceeds.” The city failed to comply with the necessarily strict statutory requirements. The court was therefore correct in holding that the city’s certificate was deficient.

General Statutes § 49-73a provides that “[n]o such lien shall be valid” unless the certificate complies with General Statutes § 12-173. As we have determined that the city’s certificate did not comply with the statute in question, the lien cannot be considered valid.

II

The city’s third claim is that the court erred in determining that the certificate did not give fair and legal notice of the city’s lien. The court stated in this respect that “the fact that [the certificate] makes no reference to the years for which taxes are due or the total amount claimed to be delinquent hardly constitutes ‘constructive notice of the existence of the lien and the claim of the municipality against such interest in such item of real estate or in such proceeds to the insurance company and to any person having an insurable interest in the real estate or an interest in the proceeds/ as required by § 49-73c.” We agree.

A statute must not be construed so as to thwart its purpose. Narel v. Liburdi, 185 Conn. 562, 571, 441 A.2d 177 (1981), cert. denied, 456 U.S. 928, 102 S. Ct. 1974, 72 L. Ed. 2d 443 (1982); Knapp v. Inland Wetlands Commission, 7 Conn. App. 283, 285-86, 508 A.2d 804, cert. denied, 200 Conn. 807, 512 A.2d 230 (1986). A statute must be construed to give effect to the legislative purpose in enacting it. Hall v. Planning Board, 2 Conn. App. 49, 52, 475 A.2d 1114 (1984). The purpose of requiring a tax continuation certificate is to give notice of existing tax liens. By failing to designate amounts owed and dates due, and instead requiring an insurance company to conduct its own investigation of municipal tax records, the entire intent behind the statutory scheme is defeated. The strict requirements were enacted to put all interested partiés on constructive notice that certain sums were owed. A blanket statement that an unspecified amount is due does not provide the necessary notice. The court was, therefore, correct in ruling that the city’s certificate was not constructive notice as required by the statute.

Ill

The city’s fourth claim is that the court erred in invalidating the city’s lien in light of the inaction of Liberty Mutual. Its fifth claim is that the city’s tax liens should not have been invalidated by the insurer’s choice of interpleader over the use of the statutory process.

General Statutes § 49-73d relieves the insurance company from liability to its insured “if the proceeds are paid to the municipality for outstanding tax liens and if the conditions specified in § 49-73d are satisfied.” (Footnote added.) Tucker v. Connecticut Ins. Placement Facility, 192 Conn. 653, 654-55, 473 A.2d 1210 (1985). In the present case, Liberty Mutual did not proceed under General Statutes § 49-73d. It is for that very reason that Tucker was successful in the action referred to above. This is a different situation, however. The city appears to be under the impression that it had no duty to comply with the statute since Liberty Mutual did not so comply. Language in the decision cited above makes it evident, however, that it is assumed the lien certificates will already have been filed under § 49-73a before the insurance company requests a statement of liens filed. In the context of denying the insurance company’s claim of immunity for failing to comply with § 49-73d, the court stated that the insurance company “must specifically request the amount of liens filed pursuant to § 49-73a, that is, liens involving a claim against fire loss proceeds.” Id., 662. The presumption in that sentence is that the city’s tax continuation certificate would already have been filed before the request was made. It is therefore not necessary for the insurance company to meet its statutory obligation before the city’s obligation became ripe. The city cannot successfully put the cart before the horse in this instance.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 52-484, provides: “Whenever any person has, or is alleged to have, any money or other property in his possession which is claimed by two or more persons, either he, or any of the persons claiming the same, may bring a complaint in equity, in the nature of a bill-of inter-pleader, to any court which by law has equitable jurisdiction of the parties and amount in controversy, making all persons parties who claim to be entitled to or interested in such money or other property. Such court shall hear and determine all questions which may arise in the case, may tax costs at its discretion and, under the rules applicable to an action of interpleader, may allow to one or more of the parties a reasonable sum or sums for counsel fees and disbursements, payable out of such fund or property; but no such allowance shall be made unless it has been claimed by the party in his complaint or answer.”

       General Statutes § 49-73d (a) provides in relevant part: “Prior to the payment of any insurance proceeds for loss or damage to real estate caused by fire, provided the amount of the proceeds for the loss payable under the policy is five thousand dollars or more, the insurance company required to pay such proceeds shall notify the town clerk of the town in which such loss or damage has been sustained and demand in writing, by registered or certified mail, that a statement indicating the amount of all liens filed pursuant to sections 49-73a and 49-73b be delivered to such insurance company at a specified address, in person or by registered or certified mail, within twenty days from the date of receipt by the town clerk of such demand.”


author: Dupont, C. J.

text:
    State of Connecticut v. Thomas Mackor, Jr.
    (5129)
    Dupont, C. J., Daly and Bieluch, Js.
    Argued April 1
    decision released June 23, 1987

      Frederick P. Devine, Jr., with whom, on the brief, was Paul M. Pieszak, for the appellant (defendant).

      Mitchell S. Brody, deputy assistant state’s attorney, with whom, on the brief, was Thomas Gomberg, assistant state’s attorney, for the appellee (state).
   Dupont, C. J.

The defendant appeals from his conviction, after a jury trial, of sexual assault in the first degree, in violation of General Statutes § 53a-70. The defendant claims that the statute is vague and violative of due process. He also claims that the court erred in failing to charge the jury on all of the elements of the crime, in referring only to testimony introduced by the state during its charge to the jury, and in allowing the introduction of evidence of the presence of spermatozoa in a vaginal swab obtained from the victim.

The jury could reasonably have found the following facts. The victim, in the company of two of her friends, met the defendant in a diner in Southington near midnight on August 31, 1985. The two of them left in his car, followed by her two friends in another car, purportedly to travel to the defendant’s condominium. The defendant drove his car in such a way as to prevent her friends from following. He proceeded to a wooded area and, once there, smoked some marihuana, which the victim declined to smoke. The victim also declined the defendant’s invitation to go swimming, and then asked to be taken home. Instead, the defendant reclined her seat, began to kiss her and placed his hand on her crotch. She, however, removed his hand and pushed him away, began to cry and again asked to be taken home. The defendant then lay down on top of the victim and she asked him to get off, and again asked him to take her home. He attempted to remove her pants, but she pushed his hands away. He then pinned both of her hands to her chest with one of his own, removed her pants, and penetrated her vagina with his penis. The defendant then smoked some more marihuana, and dropped the victim off at the home of a friend of hers. She reported the incident to the police on September 1, 1985, and went to the hospital for an examination.

The first issue raised by the defendant is whether the statute under which the defendant was convicted is unconstitutionally vague as applied to the facts of this case. General Statutes § 53a-70 (a) provides: “A person is guilty of sexual assault in the first degree when such person compels another person to engage in sexual intercourse by the use of force against such person or a third person, or by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person.”

The defendant’s claim rests upon his proposition that the statute does not require a causal connection between the use of force and the sexual intercourse. He claims that as the statute is written, the passage of time between the use of force and the intercourse, or ambiguous behavior of a victim, which might negate an earlier use of force, would nonetheless be proscribed. He makes no other argument as to the vagueness of the statute. His essential claim is that the statute does not clearly “delineate the line between acceptable and nonacceptable behavior.”

In order to survive a constitutional attack on a statute claimed to be void for vagueness, the statutory language must give fair warning to [persons] of common intelligence of the behavior which is forbidden. State v. Pickering, 180 Conn. 54, 60-61, 428 A.2d 322 (1980). “The test for vagueness is whether the statute gives ‘adequate warning of what activities it proscribes.’ Broaderick v. Oklahoma, 413 U.S. 601, 607, 93 S. Ct. 2908, 37 L. Ed. 2d 830 [1973]. ‘[L]aws [must] give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly.’ Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S. Ct. 2294, 33 L. Ed. 2d 222 [1972].” State v. Tedesco, 175 Conn. 279, 288, 397 A.2d 1352 (1978).

The plain language of General Statutes § 53a-70 is sufficiently explicit to allow persons of ordinary intelligence to know what behavior is prohibited. The statute prohibits the use of force in order to compel another person to engage in sexual intercourse, or the threat of the use of force which reasonably causes fear of injury in order to compel another person to engage in sexual intercourse.

The “use of force” as defined in General Statutes § 53a-65 (7) is: “(A) Use of a dangerous instrument; or (B) use of actual physical force or violence or superior physical strength against the victim.” The threat of the use of force, which the defendant does not argue has any technical meaning, is that which causes a person to fear the use of actual physical force or violence or the use of superior physical strength. “According to Webster, Third New Internatinal Dictionary, ‘threat’ means: ‘1: an indication of something pending and [usually] undesirable or unpleasant . . . a: an expression of an intention to inflict evil, injury, or damage on another [usually] as retribution or punishment for something done or left undone . . . b: expression of an intention to inflict loss or harm on another by illegal means and [especially] by means involving coercion or duress of the person threatened . . . . ’ ” State v. Newton, 8 Conn. App. 528, 541, 513 A.2d 1261 (1986).

Sexual intercourse, as applicable to this case, means “[p]enetration, however slight ... to complete vaginal intercourse . . . .” General Statutes § 53a-65 (2). To “compel,” while not defined by the penal code, means according to Webster, Third New International Dictionary: “3a: to domineer over so as to force compliance or submission . . . to employ force [especially] to exert an irresistible influence. . . .” The statute, by its plain language means, therefore, that the use of actual physical force, violence, or superior physical strength, or the threat of such force, violence or strength which reasonably causes fear of injury, in order to compel another to engage in sexual intercourse, with even the slightest degree of penetration, is proscribed.

In this case, if the jury credited the testimony of the victim, it could determine that the defendant did engage in the proscribed conduct of General Statutes § 53a-70 (a). There is no indication on the facts of this case that there was any spatial or temporal disjunction which might serve to truncate the causal connection between the use of force or the threat of the use of force from the sexual intercourse. The language of the statute was clear and is not unconstitutionally vague when applied to the facts of this case.

The next issue raised by the defendant is whether the judge erred by declining to charge the jury on consent or resistance. The defendant’s claim is that force as a causal factor can only be found when the judge has charged and the jury has specifically considered whether the victim has consented, and whether the victim acted to resist the defendant. The defendant submitted requests to charge on consent and resistance, and when those were refused by the court, requested that the court formulate its own charge for the jury on those issues, which request was refused.

The charge must adequately instruct the jury on the law applicable to the case in order to assist them in their understanding of the nature of the charges against the defendant, and the factual elements which must be proved in order to apply the law to the facts of the case. State v. Kurvin, 186 Conn. 555, 561, 442 A.2d 1327 (1982).

In order for the court’s refusal to charge on consent and resistance to be erroneous, the defendant must demonstrate that such instructions were elements of the crime with which the defendant was charged. The defendant asserts that a lack of consent and resistance are elements of the crime charged.

The state once had the burden of proving that the victim had earnestly resisted sexual intercourse. State v. Mastropetre, 175 Conn. 512, 523, 400 A.2d 276 (1978); State v. Esposito, 122 Conn. 604, 607, 191 A. 341 (1937); State v. Long, 72 Conn. 39, 44, 43 A. 493 (1899); State v. Shields, 45 Conn. 256 (1877); see General Statutes (Rev. to 1975) § 53a-72. The defendant’s argument on the necessity of an “earnest resistance” charge is predicated upon a determination that the legislature intended no change when it revised the statutory prohibitions against rape by Public Acts 1975, No. 75-619, now General Statutes § 53a-70. The revision altered the rape statute by deleting the element of “forcible compulsion,” and its concomitant meaning of “physical force that overcomes earnest resistance.” General Statutes (Rev. to 1975) § 53a-65 (8). The statute no longer requires that the state prove that physical force overcame earnest resistance, which was used in the past as a prerequisite to proving nonconsensual carnal knowledge by force. State v. Esposito, supra, 607. Whereas forcible compulsion was once proved by demonstrating that force had overcome resistance, the state is now required to prove that it was the use of force or its threat which caused the victim to engage in sexual intercourse, and does not by its express language require that resistance be proven.

The defendant’s argument is that the legislature did not intend to alter the essential elements of the crime, and that, therefore, a lack of consent to sexual intercourse and earnest resistance remain as elements of General Statutes § 53a-70 (a). The fact is that the legislation did change the wording of the statute, “and we may not presume that the legislature has enacted futile or meaningless legislation or that a change in the law was made without a reason.” City Council v. Hall, 180 Conn. 243, 251, 429 A.2d 481 (1980). “We can assume that this change in the law was made to accomplish some purpose.” Brown v. Cato, 147 Conn. 418, 162 A.2d 175 (1960).

The language of the prior statute regarding overcoming resistance was incorporated in it by the definition of forcible compulsion, which was “physical force that .overcomes earnest resistance.” General Statutes (Rev. to 1975) § 53a-65. That language was construed by the courts to require a charge on resistance because it was probative of the element of nonconsent. State v. Esposito, supra, 606-607; State v. Shields, supra, 264. The statute under which the defendant was convicted, however, makes no reference to overcoming resistance. The difference between the language used in the former and the present statutes evinces a legislative intent to overcome the construction given the earlier statute by previous cases in this jurisdiction. See Brown v. Cato, supra, 421. The elimination of the words “overcome earnest resistance” shows unmistakably that the legislature intended to remove the onus of proving such resistance, and the corellative element of nonconsent, to the act of carnal knowledge by force.

Further evidence of this intent can be found in the limited legislative history which is available. During the debate on the revision of the language, Senator Betty Hudson said: “The present statute is wholly inadequate and makes it very difficult to get a rape conviction in the State of Connecticut .... The present statute requires that there be force, force enough to overcome earnest resistance, whatever that means. Well in most rape cases, there is no resistance .... This statute addresses the problem very, very explicitly and very well.” 18 S. Proc., Pt. 7, 1975 Sess., p. 3222.

We conclude that the statutory changes were passed to delete earnest resistance and nonconsent as elements of the crime and, therefore, relieved the court of any obligation to charge on resistance and nonconsent. Proof of resistance was required in the past as a mode of proving that the intercourse was nonconsensual. Under the present statute, the lack of consent is subsumed by proof of the use of force or the threat of the use of force. See State v. Rothenberg, 195 Conn. 253, 259, 487 A.2d 545 (1985). Whether the existence of a fact—here, consent or nonconsent—is an essential element of a crime depends upon whether that fact forms part of the conduct prohibited by a statute. State v. Scott, 11 Conn. App. 102, 111-112, 525 A.2d 1364 (1987). Nonconsent is not an element of the crime of General Statutes § 53a-70 (a), but is embodied within the proof required of the use of force or the threat of the use of force.

The elements of General Statutes § 53a-70 (a) by the statute’s plain language are the occurrence of sexual intercourse and the use of force or the threat of the use of force to compel it. The propriety of the court’s instructions on these elements is not contested. The fact “that any act engaged in under compulsion would necessarily be nonconsensual”; State v. Esposito, 192 Conn. 166, 172-73, 471 A.2d 949 (1984); does not impose upon the court a duty to instruct the jury on consent as if it were still a statutory element. The statutory definition of the crime, which in plain language requires that it be the use of force or the threat of the use of force which serves to compel another person to engage in sexual intercourse, is sufficient, in and of itself, to consider whether the victim, in fact, consented to the act.

The defendant next claims error by the trial court in the admission of testimony by a witness for the state who testified to the presence of spermatazoa in a vaginal smear obtained from the victim. The defendant does not contest the qualification of the witness, nor the propriety of the method of testing, but contends that its prejudicial impact outweighs its probative value. See State v. Ibraimov, 187 Conn. 348, 352, 446 A.2d 382 (1982). The defendant asserts that the impact of the evidence about the presence of spermatozoa is prejudicial and that such prejudice is magnified by the lack of any evidence connecting the spermatozoa to the defendant. The defendant further contends that because the only contested issue was whether the defendant compelled the victim to engage in intercourse by force, and not whether intercourse had occurred at all, this evidence was irrelevant and not probative of the crime charged.

The evidence of spermatozoa was relevant and probative of the existence of an element of the crime, namely, sexual intercourse. The defendant did not himself testify at trial, and presented his defense by his cross-examination of the victim. It is not unforeseeable that in such cases the state may prove the use of force by the defendant, and yet fail to prove that sexual intercourse occurred. The evidence of spermatozoa in a vaginal smear, therefore, is corroborative of the victim’s testimony, and relevant and probative of a fact in issue. State v. Periere, 186 Conn. 599, 607, 442 A.2d 1345 (1982). The weighing of prejudicial impact against probative value is for the trial court. State v. Ibraimov, supra,352. On review we are limited to determining whether the trial court’s ruling “ ‘exceeded the latitude accorded to the exercise of judicial discretion.’ ” State v. Williams, 190 Conn. 104, 108, 459 A.2d 510 (1983), quoting State v. Ibraimov, supra. The evidence was probative of the element of sexual intercourse. The victim testified that she did have a boyfriend with whom she had sexual relations, which would allow the jury to consider another explanation for the presence of the spermatozoa.

Prejudice which would serve to render the evidence excludable is determined by the impact of extraneous matters. State v. DeMatteo, 186 Conn. 696, 703, 443 A.2d 915 (1982). Evidence which is directly probative of an element of the crime charged and which introduces no material extraneous to the proof of the crime charged is only probative and not prejudicial.

The defendant’s final claim is that the court erred in its charge to the jury because it mentioned only testimony consistent with a verdict of guilty, and did not mention any testimony consistent with a verdict of not guilty. A defendant is entitled to have the jury adequately and correctly instructed. State v. Hines, 187 Conn. 199, 206, 445 A.2d 314 (1982). The trial court’s jury instructions must therefore be clear, accurate, complete and comprehensible. State v. Kurvin, 186 Conn. 555, 442 A.2d 1327 (1982). We do not, however, view instructions “in artificial isolation from the overall charge.” State v. Reddick, 197 Conn. 115, 132, 496 A.2d 466 (1985), cert. denied, 474 U.S. 1067, 106 S. Ct. 822, 88 L. Ed. 2d 795 (1986).

“In reviewing the charge as a whole, the instructions ■ ‘need not be perfect, as long as they are legally correct, adapted to the issues and sufficient for the jury’s guidance.’ State v. Parent, 8 Conn. App. 469, 476, 513 A.2d 725 (1986). The test to be applied to any part of a charge is whether the charge, considered in its entirety, presents the case to the jury so that no injustice will result. State v. Mullings, 166 Conn. 268, 275, 348 A.2d 645 (1974); State v. Parent, supra.” State v. Thurman, 10 Conn. App. 302, 324, 523 A.2d 891 (1987).

The trial court, in the course of its instructions to the jury, did comment on the evidence presented by the state. Fair comment on the evidence and the credibility of the witnesses is permissible. State v. Cari, 163 Conn. 174, 182 A.2d 7 (1972). The defendant contends that the court’s comment to the jury that the defendant had “weight lifting abilities,” along with its failure to comment on the victim’s willingness to travel with the defendant that night, her intent on that night, her credibility as related to her initial reporting of the assault, and her failure to characterize the assault as “rape,” all combined to fail to present the case to the jury in such a way that no injustice would result. State v. Roy, 173 Conn. 35, 376 A.2d 391 (1977).

The trial court, in its instructions to the jury, may refer to the evidence presented, in its discretion, as long as it does not misstate or unfairly summarize the evidence and thereby invade the province of the jury as the trier of fact. State v. Vincenzo, 171 Conn. 240, 244, 368 A.2d 219 (1976). In this case most of the evidence recapped by the court for the jury was presented by the victim during her direct testimony. This is not unusual or especially significant, since the state’s case relied primarily on her testimony. State v. Lacasse, 9 Conn. App. 79, 84, 516 A.2d 145 (1986). The cross-examination of the victim did not elicit any recantation or evince any significant discrepancies with her direct testimony.

The trial court properly instructed the jury that it was its duty to assess the credibility of witnesses, weigh the evidence, and determine the facts, and that its recollections and findings were dispositive of the factual issues, and that it should ignore any factual misstatements by the court. The defendant did not testify himself, and did not offer any evidence directly contradicting the victim’s testimony. See State v. Vincenzo, supra, 247.

The defendant has not demonstrated that the court’s review of the evidence, in light of the charge as a whole, did not properly serve to instruct the jury of their role as the finders of fact. State v. Storlazzi, 191 Conn. 453, 465-67, 464 A.2d 829 (1983).

There is no error.

In this opinion the other judges concurred.

       Generally, the constitutionality of a statutory provision claimed to be void for vagueness is determined by its applicability to the particular facts in issue. The exception to this rule, which allows statutes implicating the freedom guaranteed by the first amendment to the United States constitution, to be challenged on their face, is not applicable to this case. See State v. Madera, 198 Conn. 92, 106, 503 A.2d 136 (1985); State v. Pickering, 180 Conn. 54, 57 n.3, 428 A.2d 322 (1980).

       In circumstances where first amendment rights are at stake, or where an initial determination is made that the statute does not provide fair warning, a second step may be necessary to determine whether adequate standards for its enforcement and administration exist, in comportment with the strong presumption of validity attaching to legislative acts. State v. Pickering, 180 Conn. 54, 61, n.4, 428 A.2d 322 (1980).

       General Statutes (Rev. to 1975) § 53a-72, provided: “(a) A male is guilty of rape in the first degree when he engages in sexual intercourse with a female: (1) By forcible compulsion; or (2) who is incapable of consent by reason of being physically helpless; or (3) who is less than fourteen years of age.”

       General Statutes (Rev. to 1975) § 53a-65 provided in pertinent part: “(8) ‘Forcible compulsion’ means physical force that overcomes earnest resistance; or a threat, express or implied, that places a person in fear of immediate death or serious physical injury to himself or another person, or in fear that he or another person will immediately be kidnapped.”


author: Daly, J.

text:
    Joseph A. Lovely v. Ingeborg L. Caplan
    (4740)
    Dupont, C. J., Daly and Bieluch, Js.
    Submitted on briefs April 3
    decision released June 23, 1987

      Robert M. Axelrod filed a brief for the appellant (plaintiff).

      Brian M. Gildea filed a brief for the appellee (defendant).
   Daly, J.

The plaintiff instituted this action against the defendant to recover for injuries resulting from an accident at a traffic intersection involving the plaintiffs motorcycle and the defendant’s automobile. The plaintiff has appealed from the refusal of the trial court to set aside the jury verdict rendered in favor of the defendant. The plaintiff’s sole claim is that the trial court erred in admitting into evidence the investigating officer’s sketch of the accident scene. We find no error.

The jury could reasonably have found the following facts. On October 3, 1978, the plaintiff was operating his motorcycle in a southerly direction on Cottage Street in Meriden. He was approaching the four-way stop sign intersection at Cottage and Liberty Streets. The defendant was proceeding in an easterly direction on Liberty Street. She stopped at the stop sign on Liberty Street before entering the intersection. She looked both ways, drove approximately ten feet into the intersection, and saw the plaintiff approach on her left at a high rate of speed and proceed through the stop sign and into the intersection. The defendant stopped her car immediately. The plaintiff hit the front end of her car, and then veered across the street and into a tree.

The plaintiff maintained that he had stopped for the stop sign and was approximately three-quarters of the way through the intersection when he first saw the front end of the defendant’s automobile one foot away from him. A Meriden police officer appeared at the scene to investigate the accident. He spoke to both parties and to the defendant’s passenger and made a sketch of the scene. The plaintiff’s objection to the admissibility of this sketch was overruled and is the heart of this appeal.

The plaintiff claims that the sketch was improperly admitted as a business entry under General Statutes § 52-180. The plaintiff claims (1) that there was no dirt or debris remaining from which the police officer could have ascertained the point of impact; (2) that the defendant’s automobile had been moved prior to the arrival of the investigating officer; and (3) that there were no skid or brake marks from the defendant’s car. Thus, he maintains that the sketch was based on out-of-court statements made by the defendant and her passenger.

The police sketch shows a point of impact in the southwest quadrant of the intersection with the front of the defendant’s motor vehicle impacting with the right side of the plaintiff’s motorcycle which then traveled approximately eighty-nine feet in a southeasterly direction before striking a tree on the east side of Cottage Street.

“It is well established that although an accident report is generally admissible as a business record under General Statutes § 52-180, it does not necessarily follow that everything in the document must be admitted into evidence. See Emhart Industries, Inc. v. Amalgamated Local Union 376, U.A.W., 190 Conn. 371, 384-85, 461 A.2d 422 (1983); Hutchinson v. Plante, 175 Conn. 1, 4-5, 392 A.2d 488 (1978); Mucci v. LeMonte, 157 Conn. 566, 569, 254 A.2d 879 (1969). To be admissible under the business record exception of General Statutes § 52-180, “the business record must be one based upon the entrant’s own observations or upon information transmitted to him by an observer whose business duty it was to transmit it to him.” D’Amato v. Johnston, 140 Conn. 54, 59, 97 A.2d 893 (1953). Statements obtained from volunteers are not admissible though included in a business record because it is the duty to report in a business context which provides the reliability to justify this hearsay exception. Id. Information in a business record obtained from a person with no duty to report is admissible only if it falls within another hearsay exception. State v. Palozie, 165 Conn. 288, 295, 334 A.2d 468 (1973).’ State v. Sharpe, 195 Conn. 651, 663-64, 491 A.2d 345 (1985).” Schwarz v. Waterbury Public Market, Inc., 6 Conn. App. 429, 435, 505 A.2d 1272 (1986).

An item in a business entry based on the entrant’s own knowledge is an out-of-court declaration and therefore hearsay, but it is admissible because the statutory indicium of reliability, the duty to report, is present. Hutchinson v. Plante, supra, 4.

In this case, the investigating officer had a duty to report his findings. He spoke to the parties and to the defendant’s passenger about the accident. “Motor vehicle operators are not in the business of having accidents and have no business duty to give information to investigating officers.” Hutchinson v. Plante, supra, 5. Likewise, passengers in automobiles involved in accidents are not under a business duty to give information to the police. Thus, “[tjheir statements contained in a police accident report may not be admitted for the truth of the matters stated unless they qualify under some other exception to the hearsay rule . . . .” Id. Here, the sketch did not contain any statements by the parties or by the passenger. The plaintiff maintained, however, that the sketch was made from statements made by the defendant and her passenger.

The investigating officer testified that the sketch was “made from the physical evidence at the scene,” and was based on the notes he took at the scene apart from what the parties and the passenger revealed to him. The officer examined the damage to both the motorcycle and the automobile, and the scrape marks left on the street by the motorcycle which slid along the pavement after the collision. In addition, he measured the distance between various points significant in the accident. The officer testified that at the time he made the diagram he knew the location of the point of impact. He explained that he ascertained the distance between the point of impact and the location of the plaintiffs motorcycle after the crash either from debris remaining in the intersection or the defendant’s car remaining in the intersection. “I don’t remember if I measured with the car there or if there was debris. I—when I took them, I had something there. If it was debris, it was debris. If it was a vehicle, it was the vehicle. I don’t remember.”

We conclude that the requirements of General Statutes § 52-180 had been satisfied in this case, and that it was proper for the sketch to be admitted into evidence. It was then up to the jury to consider the sketch and weigh it accordingly.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 52-180 provides in part: “Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any . . . occurrence or event, if the trial judge finds that it was made in the regular course of any business, and that it was the regular course of the business to make the writing or record at the time of the . . . occurrence or event or within a reasonable time thereafter.”


text:
    City of Norwich et al. v. Norwalk Wilbert Vault Company, Inc.
    (4634)
    Dupont, C. J., Borden and Daly, Js.
    Argued March 4
    decision released June 23, 1987

      Mary E. Holzworth, with whom was John R. Fitzgerald, for the appellant (defendant).

      Sally S. King, with whom was Brian R. Smith, for the appellee (named plaintiff).
   Daly, J.

The named plaintiff, the city of Norwich, instituted this action seeking to enjoin the defendant from using its premises, on which was located a cement manufacturing operation, as a trucking terminal. The plaintiff claimed that the defendant was required to obtain site plan approval before using its premises as a trucking terminal, and that such use constituted a nuisance. The defendant counterclaimed, alleging that there had been an impermissible delegation of a zoning function by the city council to the commission on the city plan, contrary to the Norwich city charter, and, furthermore, that the requirements for site plan approval were unconstitutional. Judgment was rendered enjoining the defendant from using its property as a trucking terminal.

The defendant has appealed claiming that the trial court erred in concluding (1) that site plan approval was required for the addition of truck storage use, and (2) that the city council’s delegation of the site plan approval process to the commission was not outside the scope of the city’s charter. We disagree.

The trial court found that the defendant had conducted a concrete business on its premises for over fifty years, manufacturing burial vaults, septic tanks and other concrete products. The business employs twenty-two people and owns seventeen trucks. It delivers its products to customers and receives raw materials via its own trucks and by common carrier. The premises are located in a heavy industrial zone (1-2) in which permitted uses include all types of industry, including trucking terminals. In 1982, the defendant rented space to various trucking companies. Empty trailers were stored on the property. Eventually, some grading was done and an employee parking area was enlarged. Since that time, there has been truck traffic twenty-four hours per day, seven days per week, with attendant noise, soot and fumes. Prior to the use of the property as a trucking terminal, there was truck traffic only during daylight hours, Monday through Friday and occasionally on Saturday mornings.

The trial court considered sections 10.2, and chapter 17, of the Norwich code and determined that these regulations require site plan approval when there is an increase in a permitted use. The court further held that the city council, by enacting ordinances which delegate site plan review to the commission, acted within the scope of its charter, and thus did not deprive the plaintiff of due process.

It has repeatedly been held by the appellate courts of this state that the granting of injunctive relief lies within the sound discretion of the trial court. A court’s action in this respect will not be disturbed unless it was an abuse of discretion. Lichteig v. Churinetz, 9 Conn. App. 406, 412, 519 A.2d 99 (1986). In addition, when a trial court reaches a decision on mistaken grounds, the trial court’s action will be sustained, if proper grounds exist to support it. Allied Plywood, Inc. v. Planning & Zoning Commission, 2 Conn. App. 506, 509, 480 A.2d 584, cert. denied, 194 Conn. 808, 483 A.2d 612 (1984), citing Favorite v. Miller, 176 Conn. 310, 317, 407 A.2d 974 (1978). This is such a case. We conclude that the defendant did not simply increase a permitted use, but rather began a different, additional use and therefore is required to obtain site plan approval for that new permitted use. Here, the defendant leased office space at the vault company to Barth Sales and Norwich Express, two separate trucking companies. Each tenant pays monthly rent for office space and for space on which to park its tractor trailer trucks.

The trial court concluded that the use of the defendant’s premises as a trucking terminal was an increase in a preexisting permitted use. It then interpreted the ordinances to require site plan approval whenever there is an increase in a permitted use of property. We need not reach this issue, since we are convinced that in this case the defendant added a different permitted use to another permitted use on its property. The trucking companies are clearly separate and distinct businesses from the concrete plant. The issue, therefore, is whether such an addition requires site plan approval. We hold that it does.

When interpreting the language of zoning regulations, our function is to determine the expressed legislative intent. McCrann v. Town Plan & Zoning Commission, 161 Conn. 65, 73, 282 A.2d 900 (1971). The enactment should be examined in its entirety and its parts reconciled so that no part is rendered meaningless.

According to § 1.57, the definitional section of the Norwich code of zoning ordinances, “use” is defined as “the purpose for which land or a building is arranged, or intended, or for which either land or a building is or may be occupied or maintained.” The land on which the defendant company is located is zoned for heavy industrial use, which by reference to § 10.1.1 of the Norwich code, permits trucking terminals.

Section 10.2.2 of the Norwich code, however, provides that “all uses permitted in this district shall be subject to site plan approval by the commission in accordance with the provisions of Chapter 17, hereof.” (Emphasis added.) We interpret that ordinance to mean that each and every use must be approved by the commission. Section 17.2 further provides: “In approving any site plan, the commission shall take into consideration the public health, safety and general welfare, the comfort and convenience of the public in general and of the residents of the immediate neighborhood in particular.” Section 17.2.2 provides that, “in addition to the above, in the case of any use located in, or directly adjacent to, a residence district: (a) the location and size of such use, the nature and intensity of operations involved in or conducted in connection therewith, its site layout and its relation to access streets shall be such that both pedestrian and vehicular traffic to and from the use and assembly of persons in connection therewith will not be hazardous or inconvenient to, or incongruous with, the said residence district or conflict with the normal traffic of the neighborhood . . .’’(Emphasis added.) Clearly, the intent of this section was to review the site plan for each and every use, including permitted uses, to determine its effect on the surrounding area. To allow the addition of one permitted use to another, different permitted use, with its drastic change in effect on the adjacent residential area, is to ignore the intent and language of this entire regulation.

Review of these ordinances suggests that even uses permitted by the zoning classification are subject to site plan approval. The defendant’s use of its property for a cement manufacturing plant was a permitted use of the property. Indeed, the defendant had previously obtained site plan approval for its cement plant which of necessity included limited truck traffic. It had never requested, let alone obtained, approval for a trucking terminal.

Use of the property as a cement manufacturing plant entailed some subsidiary truck traffic. The additional use of the property as a trucking terminal was a different use as defined in the Norwich code and entailed a dramatic increase in truck usage. Such an additional use requires site plan approval under § 10.2.2, supra, of the Norwich ordinances. On these grounds, therefore, we conclude that it was proper for the trial court to issue an injunction in this case and to require site plan approval.

We turn now to the defendant’s second claim, that the ordinance delegating the authority to approve or disapprove site plans to the commission on the city plan is an impermissible delegation of a zoning function. We conclude that this claim is not properly before us. The defendant in this case has not been aggrieved by the ordinance it challenges. Indeed, it has not attempted to obtain site plan approval under its regulations. Until the commission on the city plan functions as contemplated by the ordinances, it cannot possibly be said that the defendant has been denied due process by that ordinance. Florentine v. Darien, 142 Conn. 415, 427, 115 A.2d 328 (1955). If the defendant applies for and is denied site plan approval under the ordinance, it may then challenge, in a declaratory judgment action, the constitutionality of the ordinance. Cristofaro v. Planning & Zoning Commission, 11 Conn. App. 260, 262-63, 527 A.2d 255 (1987). The broad constitutional attack the defendant mounts here is more appropriately-made in a declaratory judgment action which provides sufficient safeguards to permit notice to and intervention by all interested persons. See General Statutes § 52-29; Practice Bo.ok §§ 388 through 394; see also Bierman v. Planning & Zoning Commission, 185 Conn. 135, 140, 440 A.2d 882 (1981); Echo Four v. Hill, 3 Conn. App. 118, 123-24, 485 A.2d 926 (1985). Thus, we will not review this claim.

Finally, we note that the trial court made no finding as to the independent nuisance claim nor was it raised by the parties on appeal. We therefore do not address it.

There is no error.

In this opinion the other judges concurred.

       The city was joined in this action at the trial by two couples owning residences in a residential zone adjacent to the industrial zone in which the defendant’s property is located. Those parties did not join in this appeal. We refer herein to the city as the plaintiff.

       Section 10.2.1 provides in part: “Heavy industrial district, 1-2, No buildings or uses are permitted in the heavy industrial district, except in accordance with the following: (1) Any permitted use allowed in the light industrial district . . . (h)(4) manufacture of bricks, cement products, tile and terra cotta. (5) Bulk storage of cement and concrete mixing plants.”
      “10.2.2 Site plan review. All uses permitted in this district shall be subject to site plan approval by the commission in accordance with the provisions of Chapter 17, hereof."

       Section 17.2 provides in pertinent part: “In approving any site plan, the commission shall take into consideration the public health, safety and general welfare, the comfort and convenience of the public in general and of the residents of the immediate neighborhood in particular. The commission shall also consider the following general objectives ....
      “17.2.2 That, in addition to the above, in the case of any use located in, or directly adjacent to, a residence district: (a) The location and size of such use, the nature and intensity of operations involved in or conducted in connection therewith, its site layout and its relation to access streets shall be such that both pedestrian and vehicular traffic to and from the use and the assembly of persons in connection therewith will not be hazardous or inconvenient to, or incongruous with, the said residence district or conflict with the normal traffic of the neighborhood . . . . ”

       Chapter 10 of the Norwich code provides in pertinent part: “10.1.1 Permitted uses. No buildings or uses are permitted in the light industrial district, except in accordance with the following . . . (g) Trucking terminals . . . .”
      See also footnote 2, supra.

       See footnotes 2 and 4, supra.


author: Borden, J.

text:
    State of Connecticut v. Thomas O. McShea
    (5159)
    Borden, Bieluch and Satter, Js.
    Argued May 6
    decision released June 23, 1987

      Charles K. Thompson, with whom, on the brief, was James F. Shields,, for the appellant (defendant).

      MitchellS. Brody, deputy assistant state’s attorney, with whom, on the brief, were James G. Clark, assistant state’s attorney, and Cathryn Krinistsky, deputy assistant state’s attorney, for the appellee (state).
   Borden, J.

The defendant appeals from the judgment of conviction, after a jury trial, of operating a motor vehicle while under the influence of liquor in violation of General Statutes § 14-227a. The sole issue of this appeal is whether there was sufficient evidence to establish that the defendant operated his motor vehicle while under the influence of liquor. We conclude that there was, and find no error.

The defendant does not challenge the sufficiency of the evidence that he was intoxicated. He challenges only the sufficiency of the evidence that he was intoxicated while operating his car.

That evidence was as follows: On November 11,1985, at approximately 2:19 p.m., the Wallingford police department was notified of a motor vehicle accident at 1175 Old Colony Road. In that area, Old Colony Road is a two lane public highway, and is a busy main artery connecting Wallingford and Meriden. Officer Michael Cei of the Wallingford police department, who had worked in the accident motor vehicle investigation unit for four years, was dispatched to the scene and arrived there at approximately 2:29 p.m. The pavement was wet. There was a green car tilted with its right wheels on concrete blocks situated between the sidewalk and the road, and its left wheels bordering the side of the road. The doors of the car were closed and the keys were in the ignition. The defendant was asleep in the driver’s seat. On the front seat next to him was an empty half-pint brandy bottle, and empty beer cans were scattered across the floor. Less than an hour and a half earlier, at approximately 1 p.m., the defendant had been observed with an unopened six pack of beer on the front seat of his car. Cei awoke the defendant, who was highly intoxicated. The defendant admitted being the driver of the car. Cei estimated, on the basis of his experience and the fact that Old Colony Road was a busy artery, that no more than five minutes elapsed between the time of the accident and notification of it to the police, and that he arrived on the scene ten minutes after that notification. Cei further testified that there was not enough time between the accident and his arrival on the scene for the defendant to have consumed, during that period of time, a sufficient amount of liquor to reach the high level of intoxication in which he was found. Cei arrested the defendant and took him to the police station, where the defendant refused to take a chemical test.

A guilty verdict must stand if the “ ‘jury could have reasonably concluded, upon the facts established and the inferences reasonably drawn therefrom, that the cumulative effect of the evidence established the defendant’s guilt beyond a reasonable doubt.’ ” State v. Dumlao, 3 Conn. App. 607, 613, 491 A.2d 404 (1985), quoting State v. Giorgio, 2 Conn. App. 204, 211, 477 A.2d 134 (1984). The evidence must be viewed most favorably to sustaining the verdict. State v. Dumlao, supra. Proof beyond a reasonable doubt means proof which precludes every reasonable hypothesis of innocence, is consistent with guilt, and is inconsistent with any other rational conclusion. Id., 616. It need not, however, preclude every possible hypothesis of innocence. State v. Liscio, 9 Conn. App. 121, 126-27, 516 A.2d 1366 (1986), cert. denied, 202 Conn. 803, 519 A.2d (1987).

On the basis of all the evidence presented, the jury could have reasonably inferred that the defendant was intoxicated while he was driving the car. A sufficient basis for this inference was created by the following evidence: the time and location of the accident and the precarious position of the vehicle; the presence of the defendant behind the wheel; the empty half-pint brandy bottle and empty beer cans scattered across the floor; the defendant’s admission that he was driving the car; the evidence regarding the time sequence and its relationship to the defendant’s degree of intoxication; and the defendant’s refusal to take a chemical test.

The defendant argues that it was just as likely an inference from the evidence that he consumed liquor while sitting in the car after the accident. The defendant, by this argument, is attempting to revive the discredited notion that, if any piece of evidence could yield contrary inferences, it must be given a construction consistent with innocence rather than with guilt. That is not our law. “It is clear that, in viewing evidence which could yield contrary inferences, the jury is not barred from drawing those inferences consistent with guilt, and is not required to draw only those inferences consistent with innocence.” State v. Dumlao, supra, 616; see also State v. Rodgers, 198 Conn. 53, 59, 502 A.2d 360 (1985).

The defendant’s reliance on State v. DeCoster, 147 Conn. 502, 162 A.2d 704 (1960), is unavailing. In that case, our Supreme Court held that the evidence was insufficient to support the defendant’s conviction for the same offense under similar circumstances. The court stated: “No one had seen [the defendant] operating the car, and there was no evidence to show how long it had been standing in the place where it was found.” Id., 504. In this case, however, there was competent opinion evidence showing how long the car had been in place and, additionally, that there was insufficient time for the defendant to drink enough alcohol to reach his level of intoxication. Moreover, in this case, there was an admission by the defendant that he was operating the car and evidence that he refused to take a chemical test. See footnote 1. Thus, State v. DeCoster, supra, is distinguishable.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 14-227a (f) provides in pertinent part that “[i]n any criminal prosecution for a violation of subsection (a) . . . of this section . . . the court shall instruct the jury as to any inference that may or may not be drawn from the defendant’s refusal to submit to a blood, breath or urine test.”


author: Stoughton, J.

text:
    State of Connecticut v. George Sitka
    (4215)
    (4677)
    Hull, Daly and Stoughton, Js.
    Argued February 10
    decision released June 23, 1987

      Ronald L. Lepine, with whom, on the brief was, Angelo L. dos Santos, for the appellant (defendant).

      Steven M. Sellers, assistant state’s attorney, with whom, on the brief, were Samuel Sferrazza and Thomas E. Gomberg, assistant state’s attorneys, for the appellee (state).
   Stoughton, J.

The first case is an appeal from a judgment of conviction on January 30,1985, following a jury trial. The defendant was charged with operating a motor vehicle while under the influence of liquor, in violation of General Statutes (Rev. to 1983) § 14-227a amended by Public Acts 1983, No. 83-534, On February 19,1985, the defendant filed a notice of appeal and motion to open the judgment. The motion was denied on April 26, 1985, A motion for a new trial was filed in March and denied on April 26, 1985. On May 16, 1985, an appeal was filed. The defendant’s preliminary statement contained two issues: (1) whether the court had jurisdiction over the subject matter of this dispute; and (2) whether the court erred in denying the defendant’s motion to open the judgment. The ground stated in the motion to open the judgment was that it was against the preponderance of the evidence. The second issue was neither briefed nor argued by the defendant and is deemed abandoned. See DeMilo v. West Haven, 189 Conn. 671, 682 n.8, 458 A.2d 362 (1983).

The second case is an appeal from a judgment of conviction following a guilty plea on October 29,1985, to a charge of operating a motor vehicle under the influence of liquor, a violation of General Statutes (Rev. to 1985) § 14-227a. A motion to dismiss for lack of subject matter jurisdiction had been denied by the trial court prior to the guilty plea. The plea was entered with the understanding that the defendant was not waiving the claim of lack of subject matter jurisdiction. The two issues raised on this appeal are lack of subject matter jurisdiction and error in denial of the motion to dismiss.

On January 16,1986, this court granted the defendant’s motion to combine these two appeals. In each case, the claim by the defendant is that the General Assembly failed to enact No. 83-534 of the 1983 Public Acts validly and that, therefore, the court lacked subject matter jurisdiction.

In the first case, the defendant appeared pro se at his trial. At that trial, the defendant offered evidence which he said would show that Public Acts 1983, No. 83-534 was not validly enacted. This evidence consisted of portions of the Journals of the House of Representatives and of the Senate, excerpts from the Manual of Legislative Procedure by Paul Mason, and testimony by a witness who had done some research on legislative procedure. After an objection on grounds of relevancy was sustained, the court suggested to the defendant that he make an offer of proof. The copies of the journals were marked as exhibits for identification, but the defendant refused to leave them in the custody of the court. These journals and pages from the Manual of Legislative Procedure are printed in the defendant’s appendix to his brief. The state argues in its brief that these documents should not be considered. The briefs of both parties have, however, referred to these documents, and they may be judicially noticed by this court.

Article third, § 13 of the Connecticut constitution provides that “[e]ach house shall determine the rules of its own proceedings . . . and shall have all other power necessary for a branch of the legislature of a free and independent state.” The General Statutes also provide for rule making power. See General Statutes § 2-la. At the opening session of the legislature on January 5,1983, the senate adopted rules of parliamentary practice. Rule 32 provides: “The rules of parliamentary practice comprised in the latest edition of Mason’s Manual of Legislative Procedure shall govern the senate whenever applicable and whenever they are not inconsistent with the standing rules and order of the senate or the joint rules of the senate and house of representatives.” Journal of the Senate, Wednesday, January 5, 1983, p. 57. Rule 35 provides in part that “[tjhese rules shall not be altered, amended or suspended except by vote of at least two-thirds of the members present. . . . Motions to suspend the rules shall be in order on any session day.” Id. The house of representatives, on the same day, adopted Rule 22, similar to senate Rule 32, and Rules 44 and 45 providing for suspension of the rules. Rule 44 provided that “[tjhese rules shall not be altered, amended or suspended except by the concurrent vote of at least two-thirds of the members present.” Journal of the House of Representatives, Wednesday, January 5, 1983, p. 15. Rule 45 provided, in part, that “[mjotions to suspend the rules shall be in order on any session day.” Id.

On May 31,1983, the house of representatives considered Substitute House Bill No. 6420 entitled An Act Concerning The Penalties For Drunk Driving. See Journal of the House of Representatives, Tuesday, May 31,1983, p. 1761. On June 6,1983, the senate considered Substitute House Bill No. 6420 entitled An Act Concerning The Penalties For Drunk Driving (As amended by house amendment schedules A, C, D, I and K). Journal of the Senate, Monday, June 6, 1983, p. 1725. The bill was amended in the senate and passed. Upon motion, the rules were suspended for immediate transmittal of the bill to the House of Representatives. Id., p. 1726. The Journal of the Senate is silent as to whether or not the suspension of the rules was by two-thirds majority vote, and it is upon this omission that the defendant builds his claim of lack of subject matter jurisdiction. This bill became Public Acts 1983, No. 83-534.

Subject matter jurisdiction is the power of the court to determine cases of the general class to which the proceedings in question belong. Bank of Babylon v. Quirk, 192 Conn. 447, 449, 472 A.2d 21 (1984). It is beyond doubt that the court had power to decide drunk driving cases. If Public Acts 1983, No. 83-534 had not been validly enacted, it could not have repealed its predecessor § 14-227a of the General Statutes which dealt with drunk driving. The defendant’s claim is actually that the section under which he was prosecuted was not validly passed and that he could not have been convicted under its terms. The Journal of the Senate does not establish that the suspension of the rules was not by a two-thirds majority vote. It simply records that the rules were suspended, without more. There should be no presumption that the senate violated its own rules.

One who contests the constitutionality of a statute bears the heavy burden of demonstrating beyond a reasonable doubt that the presumption of its validity has been overcome. Gunther v. Dubno, 195 Conn. 284, 291, 487 A.2d 1080 (1985).

The courts cannot pass upon the regularity of legislative proceedings, at least in the absence of a violation of some constitutional restriction. State v. Savings Bank of New London, 79 Conn. 141, 152, 64 A. 5 (1906). The defendant asserts, as he must, that the Connecticut constitution requires that the suspension of the rules be by a two-thirds majority vote, and that the two-thirds vote be recorded in the Journal of the Senate. The foundation for this assertion is the provision in article third, § 13, that each house shall determine the rules of its own proceedings. Because the houses of the legislature are empowered by the constitution to determine rules of proceedings, it is argued that the rules are constitutionally mandated and such a departure from the rules as a suspension of all the rules requires the scrutiny of the judiciary. The Connecticut constitution does not, however, require any particular rules or any particular method for suspending the rules. Merely labeling this a constitutional question does not make it so. Since the houses of the legislature have the power to set their own rules, they have the power to depart from one or several of them. See State v. Savings Bank of New London, supra, 152. Even if the senate failed to act by a two-thirds majority vote to suspend the rules, that would not give rise to a constitutional question. See Schieffelin & Co. v. Department of Liquor Control, 194 Conn. 165, 185, 479 A.2d 1191 (1984).

In the absence of any violation of any constitutional provision, the validity of Public Acts 1983, No. 83-534 cannot be impeached by resort to the journals of the legislature.

We will not in this case speculate that the senate may have violated its own rules, nor will we inquire into the regularity of its proceedings. We conclude that the court had subject matter jurisdiction in the first case.

In the second case, the defendant pleaded guilty with the understanding that he was not waiving his claim of subject matter jurisdiction. We conclude, as we did in the first case, that the court did have subject matter . jurisdiction. Moreover, the defendant was charged with violation of General Statutes (Rev. to 1985) § 14-227a, not with violation of Public Acts 1983, No. 83-534. Section 14-227a was amended in 1984 and was not precisely the same as Public Acts 1983, No. 83-534.

Since the trial courts had subject matter jurisdiction in each case, the judgment in each case is affirmed.

There is no error in either appeal.

In this opinion the other judges concurred.