author: SPEAR, J.

text:
    TERRY BUSHY ET AL. v. GEORGE E. FORSTER ET AL.
    (12729)
    O’Connell, Spear and Hennessy, Js.
    Argued September 25
    officially released November 19, 1996

      Herbert Watstein, for the appellants (plaintiffs).

      Anthony J. Pantuso III, with whom, on the brief, was Charles M. Fresher, for the appellees (defendants).
   SPEAR, J.

The plaintiffs, Terry Bushy and her husband Robert Bushy, appeal from the judgment rendered in favor of the defendants after a jury trial. She claims that the trial court improperly failed to adapt the jury charge to the issues, pleadings and evidence of the case. We agree and reverse the judgment of the trial court.

The plaintiffs filed a three count complaint, sounding in negligence, loss of consortium and nuisance. The gravamen of the plaintiffs’ claim was that the defendants negligently allowed water from a roof to discharge and drain onto a driveway surface, where the water froze and created a dangerous and hazardous condition. The plaintiffs also claimed that the drainage system created an absolute private nuisance.

The plaintiffs claim that the evidence established the following. The plaintiffs leased an apartment located at 24 Missal Avenue in Bristol from the defendants, George Forester and Judith Forster. The written lease provided that the defendants were responsible for repairs and maintenance of the property, including the drainage system. Horizontal gutters on the building directed water from the roof into downspouts, one of which discharged onto the driveway.

On January 4,1988, the temperature rose above freezing and snow that had fallen earlier that day melted. On January 8,1988, the temperature fell below freezing. That same day, Terry Bushy left her job early because it was snowing and went home. She parked her car at the end of the driveway and shoveled the driveway from her car to the entrance of the building. She went inside her apartment for a short time. While she was inside, snow continued to fall and accumulate. On her way back outside, she slipped on a patch of ice and fell. As a result of her fall, she suffered injuries, including a severe fracture to her right ankle that required surgery.

The defendants denied the plaintiffs’ allegations and filed special defenses, essentially alleging that Terry Bushy was contributorily negligent.

At trial, the parties offered conflicting testimony as to the location and cause of the fall. The plaintiffs offered evidence to show that Terry Bushy slipped on a patch of ice that was under the downspout that discharged onto the driveway. In addition, the plaintiffs claimed that the defendants had notice that the drainage system on the property discharged water onto the paved driveway. The plaintiffs’ expert witness, Charles McSheffery, testified that, in general, a downspout should not, for safety reasons, discharge onto a paved area where it is possible that the discharged water may freeze. He further testified that the drainage system on the property created a dangerous and hazardous condition, which exposed the plaintiffs to the danger of slipping and falling during cold weather when the discharged water could freeze on the driveway surface. In addition, McSheffery testified that the condition could have been easily remedied by either relocating the downspout in question or directing the flow of water onto the lawn.

The defendants, on the other hand, presented evidence at trial that under the terms of the lease, the plaintiffs were solely responsible for snow removal. Evidence was also adduced to show that Terry Bushy fell at the bottom of the ice covered steps leading outside, and not on an ice patch at the base of the downspout on the driveway. The defendants claimed that she was aware of the ice before she fell, and that she fell because she was tired, not paying attention, suffering from arthritis and was wearing well-worn sneakers. In addition, the defendants argued that the plaintiffs did not offer sufficient evidence to prove that water from the downspout actually discharged onto the driveway. Furthermore, the defendants claimed that even if water did discharge onto the driveway surface, they did not have actual or constructive notice of the condition.

The plaintiffs filed numerous requests to charge, most of which were adapted to the facts of this particular case. The court, however, declined to adapt its charge to the particular' evidence presented and merely gave general instructions on the law applicable to the case.

The plaintiffs excepted to the trial court’s instructions, claiming that “there should have [been] some reference to some of the evidence .... The court could have clarified and related some of the evidence to the charge.” In response, the court stated, “It is this court’s policy not to comment on the evidence.” The court provided the jury with copies of the lease, complaint, answer and special defenses, and instructed the jury to examine the allegations to determine whether the parties had proven their claims.

The plaintiffs assert that the trial court improperly failed to adapt the jury charge to the issues, pleadings, and evidence introduced at trial. We agree.

“The primary purpose of the charge is to assist the jury in applying the law correctly to the facts which they might find to be established. ... In satisfying this purpose, the charge must go beyond a bare statement of accurate legal principles to the extent of indicating to the jury the application of those principles to the facts claimed to have been proven. . . . While the degree to which reference to the evidence may be called for lies largely in the discretion of the court ... an allusion to it is required sufficient to furnish a practical guide to the jury as to how the stated law is to be applied to the evidence before them.” (Citations omitted; internal quotation marks omitted.) Vita v. McLaughlin, 158 Conn. 75, 77, 255 A.2d 848 (1969). “ ‘[T]he function of a judge’s charge is to enable the jury to find its way through the maze of conflicting testimony [and] to sift the relevant from the irrelevant . . . .” Anderson & McPadden, Inc. v. Tunucci, 167 Conn. 584, 590, 356 A.2d 873 (1975). “ ‘[It] is not the proper course for a judge to lay down the general principles applicable to a case and leave the juiy to apply them, but it is his duty to inform the jury what the law is as applicable to the facts of the case.’ ” Jacques v. Carter, 2 Conn. App. 27, 34, 476 A.2d 621 (1984), quoting Laukaitis v. Klikna, 104 Conn. 355, 360, 132 A. 913 (1926).

We have held that “where the issues are complicated, peculiar, or capable of differing conclusions, comment by the court is necessary.” (Emphasis added.) Jacques v. Carter, supra, 2 Conn. App. 33-34. The defendants assert that, in this case, comment was unnecessary because the issues before the jury were uncomplicated, clearly examined during trial, and adequately presented during closing arguments. See Bruneau v. Quick, 187 Conn. 617, 629, 447 A.2d 742 (1982); Anderson & McPadden, Inc. v. Tunucci, supra, 167 Conn. 584; Tough v. Ives, 162 Conn. 274, 287, 294 A.2d 67 (1972); Vita v. McLaughlin, supra, 158 Conn. 77; Heslin v. Malone, 116 Conn. 471, 165 A. 594 (1933).

This case is analogous to Vita v. McLaughlin, supra, 158 Conn. 78, where our Supreme Court set aside the judgment of the trial court and ordered a new trial because “the [trial] court recited certain principles of law with no attempt to relate the law to the pleadings and the evidence offered by the parties.” In that case, the minor plaintiff filed a negligence action against the defendant, who pleaded the special defenses of contributory negligence and assumption of the risk. During its charge, the court instructed the jury to read the pleadings during its deliberation, but failed to discuss the specific allegations made by either party. In reversing the judgment, the Supreme Court held that “[e]ven if we were to assume that the court correctly stated the rules of law in the abstract, with no further instructions applying the rules to the particular facts of this case, such a charge could not adequately serve to guide the jury in a determination of the duty resting upon the defendant, nor could it adequately guide them in determining the application to the minor plaintiff of the rules of law relating to assumption of risk and contributory negligence.” Id., 78. In the present case, the court also declined to adapt the charge to the evidence and merely referred the jury to the pleadings.

Our Supreme Court has held that, in determining whether jury instructions that do not relate the facts of the case to the law are proper, the reviewing court must “consider whether the issues in the case are complicated.” State v. Lemoine, 233 Conn. 502, 515, 659 A.2d 1194 (1995). In Lemoine, our Supreme Court held that, despite the trial court’s failure to relate the specific facts to the legal issues in its charge, the court’s charge was proper because the evidence was, uncomplicated. Id., 515; see also Corrievau v. Associated Realty Corp., 122 Conn. 253, 256-57, 188 A. 436 (1936); Crane v. Hartford-Connecticut Trust Co., 111 Conn. 313, 316, 149 A. 782 (1930); Morosini v. Davis, 110 Conn. 358, 363-64, 148 A. 371 (1930).

We disagree with the defendants’ characterization of this case as “uncomplicated.” The plaintiffs were seeking recovery under two different theories, and the defendants relied on four special defenses. During his opening arguments, defense counsel repeatedly cautioned the jury that the case was complex and confusing. The only issue that the parties agreed on was the fact that Terry Bushy fell somewhere on the property and sustained injuries. Virtually every other fact and issue in the case was contested and the parties introduced conflicting evidence on nearly every allegation.

Accordingly, we conclude that, due to the nature of this case, the court had a duty to adapt the evidence to the legal issues in its charge to the jury.

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

In this opinion the other judges concurred.

       The plaintiffs raised two other claims on appeal: whether the trial court improperly failed to instruct the jury that the landlord had a duty to keep the premises and appurtenances fit and habitable in accordance with General Statutes § 47a-7 (a) (2), and whether the trial court improperly failed to instruct the jury in accordance with the plaintiffs’ requests to charge. While we have carefully examined the plaintiffs’ claims, due to our disposition of their first claim, we find it unnecessary to consider them. It is unlikely that they will recur on retrial.

       The defendants claimed four special defenses. First, they alleged that Terry Bushy’s injuries were caused by her own carelessness and negligence in shoveling the driveway. Second, they alleged that her injuries were caused by her “own negligence in failing to remove snow from the driveway.” Third, they alleged that her injuries “were caused by [her] breach of the leasing agreement which . . . obligated [her] to remove snow from the premises.” Finally, the defendants claimed that if the jury did award the plaintiffs damages, “the defendants are entitled to a reduction in any such award for any collateral source benefits paid . . .

       The court stated, “As to the pleadings. You’re going to have in the jury deliberation room with you the pleadings. . . . Now in this case, [Terry Bushy] has alleged two theories of liability against the defendants in her complaint. Count one is in negligence. Count three is in nuisance. ... I am not going to read all the allegations of the complaint to you, but I will point out to you that you must look at the complaint and see if the evidence supports any of the allegations of the complaint .... I would point out to you that as you review the complaint, allegation ten spells out what the claims of negligence are by the defendants. That’s what the plaintiffs claim the defendants did wrong. So, look at allegation ten. Basically, the defendants deny allegation ten, deny that they did anything wrong to cause the fall. Allegation eleven spells out what the plaintiffs claim [the] injuries were and basically the defendants leave the plaintiffs to [their] proof as to the allegations of injury. . . .You’ll see that the third count is a count in absolute nuisance. I will go over that with you when I describe what nuisance is. You will have a copy of the defendants’ answer and you will note in the defendants’ answer that they set forth special defenses. Of course, the special defenses are denied by the plaintiffs and you’ll have a copy of that denial. But, essentially what the defendants say in their special defenses are that in the first special defense, they say that any injuries and damage suffered by the plaintiffs were caused by the carelessness and negligence of the plaintiff, Terry Bushy, in one or more of the following ways: A, in that she failed to keep a proper lookout for her own safety, and B, that she failed to watch where she was going and failed to watch where she was placing her feet. And, C, that she failed to make reasonable and proper use of her senses. And there’s further, there’s D, E and F, and I’m not going to read the entire account. You’ll have it with you in the jury room. The second special defense is that the injuries and damages suffered by [Terry Bushy] were caused by her own negligence and failure to remove snow from the driveway. And then there’s a third special defense. Again, you’re going to have those documents in the jury deliberation room with you and you will be able to review them in more detail, at that time.”

       The present case, however, is unlike those cited by the defendants. For example, in Tough v. Ives, supra, 162 Conn. 289, the trial court referred to the plaintiffs allegations and “made sufficient reference to the claims of the parties to guide the jury adequately in the application of the principles of law to the facts involved.” The Tough court noted that if the trial court had in fact instructed the jury as requested by the plaintiff, “it would have been [impermissibly] indulging in an argumentative presentation of the claims of only one side.” Id., 290. In Bruneau v. Quick, supra, 187 Conn. 631, Anderson & McPadden, Inc. v. Tunucci, supra, 167 Conn. 584, and Heslin v. Malone, supra, 116 Conn. 477, the issue was not whether the trial court improperly failed to adapt its instructions to the facts of the particular case, but rather, whether the court improperly commented on one party’s case more thoroughly than the other’s, thus resulting in an argumentative presentation of the case.

       In Lemoine, in which the court found that the evidence introduced at trial was uncomplicated, Lemoine was charged with nine counts: sexual assault in the third degree in violation of General Statutes § 53a-72a (a) (1)
        (A), sexual assault in the third degree in violation of § 53a-72a (a) (1) (B), risk of injury to a child in violation of General Statutes § 53-21, two counts of assault of a peace officer in violation of General Statutes (Rev. to 1991) § 53a-167c (a) (1), two counts of criminal attempt to commit assault in the first degree in violation of General Statutes §§ 53a-59 (a) (1) and 53a-49 (a) (2), and two counts of reckless endangerment in violation of General Statutes § 53a-63. The various counts pertained to three completely separate and distinct episodes and '“it, [was] impossible that the jury could have intermingled or confused the evidence . . . .” State v. Lemoine, supra, 233 Conn. 514. Furthermore, the court found that it was not reasonably possible the jury was misled by the trial court’s instructions. The jury was instructed on the general principles of law applicable to a criminal case, the elements of the crimes charged, and then the court emphasized in its instructions to which victims each charge applied. The information, which the jury had during its deliberations, also clearly stated the state’s allegations. Id.

       During opening arguments, defense counsel made the following statements: “[W]henyou look [at] the circumstances behind the fall, the reasons for the fall . . . [are] complex .... You will be presented with a lot of evidence ... by both the plaintiffs and myself. . . . Now, we would submit tha! by the close of this evidence, you will be convinced either that [Terry] Bushy did not fall where she said she fell or you will be so confused as to where she fell .... [T]he third question is, why did she fall? I believe that this is probably going to be the most confusing of the issues presented to you .... I also believe that there’s a possibility that you’re going to be so confused by the evidence presented to you that you’re not going to be able to conclude anything . . . .”


source: Caselaw Access Project

author: LANDAU, J.

license: Public Domain

text:
    SCHOOLHOUSE CORPORATION v. WILLIAM H. WOOD, JR., CONSERVATOR (ESTATE OF HILDA RANKIN OLYPHANT) ET AL.
    (15599)
    Landau, Schaller and Hennessy, Js.
    Argued October 28
    officially released October 28, 1996

      John H. Bums, for the appellant (plaintiff).

      Robert L. Wyld, with whom, on the brief, were Edward F. Scully, Sheila A. Huddleston, Stephanie M. Gitlin and Patrick E. Scully, for William H. Wood, Jr., executor of the estate of Hilda Rankin Olyphant.

       October 28, 1996, the date that this decision was released in open court, is the operative date for all substantive and procedural purposes.

   LANDAU, J.

The plaintiff appeals from the judgment of the Superior Court dismissing its appeal from the Probate Court’s approval of the sale of certain real property. The plaintiff claims that the Superior Court improperly granted the defendants’ motions to dismiss.

We first set out the facts and procedural history of the case. Hilda Rankin Olyphant and her daughter, the defendant Denise Case, each owned an undivided one-half interest in twenty-six acres of property on Mountain Spring Road in Farmington. Olyphant became incapacitated and a conservator, the defendant William H. Wood, Jr., was appointed. Wood and Case determined that the property should be sold to pay for Olyphant’s care and they listed the property for sale at $385,000. They rejected the plaintiff’s offer of $320,000 for the property. On October 27, 1994, the plaintiff prepared and signed a noncontingent offer to purchase the property for the listing price. On that same day, the defendant Karen Wand submitted an offer for the property of $350,000. A contract dated October 27,1994, was signed by Case, Wood as conservator and Wand at a purchase price of $350,000.

The defendants filed an application for approval of the sale with the Probate Court on November 15, 1994, along with a letter indicating that the plaintiff had made a subsequent offer in the amount of $385,000. The Probate Court permitted the plaintiff to participate in the proceedings but did not formally consider the plaintiffs offer. The Probate Court approved the sale by decree on January 25, 1995, and on February 25 it authorized the plaintiff to file an appeal of its decision to the Superior Court.

On July 21, 1995, Olyphant died. Thereafter, the defendants Wand and Wood filed separate motions to dismiss the action in the Superior Court arguing that upon the death of the ward the conservatorship terminated, the ward’s interest in the property passed to Case under the terms of her will, and the appeal by the plaintiff from the Probate Court’s decree was moot. The plaintiff argued that although the death of the ward terminated the conservatorship, the Probate Court’s decree remained in effect and title to the property had not passed under the will to Case; therefore, the issues in the appeal remained justiciable.

On December 19, 1995, the Superior Court dismissed the plaintiffs appeal to that court on the ground that the appeal was moot. It found, inter aha, that the plaintiff had no written contract with the conservator for the purchase of the property, the Probate Court had not approved such a sale to the plaintiff, there was no longer a living ward whose interests the Probate Court would have a duty to protect, and there no longer existed a conservatorship or a conservator to sell the property.

The plaintiff filed an appeal in this court on January 9, 1996. The plaintiffs brief was filed on February 22, 1996, Wand filed her brief on March 22 and Wood filed his brief as conservator on March 25, 1996. The appeal was marked ready for hearing for October 28, 1996. After the briefs were filed, the plaintiff filed a motion to substitute in the Superior Court, requesting that the executor of the estate of Olyphant be substituted in place of the conservator. The conservator filed an objection arguing that the Superior Court no longer had jurisdiction to entertain the motion since the underlying action had been dismissed as moot and Practice Book § 4033 required the motion to be filed with this court. The Superior Court granted the motion to substitute on July 15, 1996. The defendants filed timely motions for review in this court. On October 23,1996, review and relief, vacating the order to substitute, were granted. On October 24, 1996, the plaintiff filed a motion to substitute in this court, requesting the substitution of William H. Wood, Jr., executor, in lieu of William H. Wood, Jr., conservator.

As a threshold matter, we must first rule on the motion to substitute. In doing so, we must adhere to certain well recognized rules of law. “A cause ... of action shall not be lost or destroyed by the death of any person, but shall survive in favor of or against the executor or administrator of the deceased person. . . . If a party defendant dies, the plaintiff, within one year-after receiving written notification of the defendant’s death, may apply to the court in which the action is pending for an order to substitute the decedent’s executor or administrator in the place of the decedent, and upon due service and return of the order, the action may proceed. . . . The provisions of this section shall not apply: (1) To any cause ... of action or to any civil action or proceeding the purpose or object of which is defeated or rendered useless by the death of any party thereto . . . .” General Statutes § 52-599. “[T]his statute gives the plaintiff an absolute right to have the representative of a deceased defendant cited in within one year after the defendant’s death, and thereafter it is within the power of the court to order him cited in ‘if good cause is shown for the delay.’ ” Worden v. Francis, 170 Conn. 186, 188, 365 A.2d 1205 (1976), quoting Dorsey v. Honeyman, 141 Conn. 397, 400, 107 A.2d 260 (1954).

Practice Book § 4033 provides a procedure by which a plaintiff may apply to substitute as required by General Statutes § 52-599. “Any change in the parties to an action pending an appeal shall be made in the court in which the appeal is pending. . . .” Practice Book § 4033. Upon Olyphant’s death, the plaintiff had two options: it could have filed a timely motion to substitute in the Superior Court when it filed its objection to the motions to dismiss, or it could have attempted to preserve the appeal by moving to substitute in this court within one year of Olyphant’s death. It did neither. Instead the plaintiff waited until the year had nearly passed and then filed its motion in the wrong court.

The defendants provided the plaintiff an opportunity to cure its error when they challenged the Superior Court’s jurisdiction on the basis of § 52-599 and Practice Book § 4033. At that time, the plaintiff could have withdrawn its motion in Superior Court and filed a motion to substitute in this court, still within the one year period set forth in § 52-599. Again it chose not to do so. The plaintiff now argues that this court should exercise its discretion to allow its untimely motion because some unspecified ambiguity in the statute or rule and a conversation with a clerk of a court led it astray.

“Good cause” is defined as “ ‘a substantial reason amounting in law to a legal excuse for failing to perform an act required by law [and] [l]egally sufficient ground or reason.’ Black’s Law Dictionary (6th Ed. 1990); see also Slifkin v. Condec Corp., 13 Conn. App. 538, 549, 538 A.2d 231 (1988).” Roberto v. Honeywell, Inc., 33 Conn. App. 619, 626, 637 A.2d 405, cert. denied, 229 Conn. 909, 42 A.2d 1205 (1994). Thus, the scope of our discretion requires us to review the intent and the reasons given by the plaintiff for not moving to substitute the executor in place of the defendant conservator within the one year1 period set forth in § 52-599, and to determine if those reasons, particular to this case, amounted to good legal excuse.

The reasons offered by the plaintiff do not constitute good cause. A plaintiffs delay in seeking substitution would be excused for good cause “if all the parties interested were disabled by sickness, or lived remote from the domicile of the intestate, or had not heard of his death . . . .” Johnson v. N. York & N. England R. R. Co., 56 Conn. 172, 175, 14 A. 773 (1888). A plaintiff s delay would also be excused when the plaintiffs administrator waited to seek substitution because the defendant’s attorney had asked him not to file papers with the court, and had assured him that the debt at issue in the litigation would be paid. Hatch v. Boucher, 77 Conn. 347, 351, 59 A. 422 (1904). On the other hand, the Supreme Court affirmed a denial of a motion to substitute when it was apparent on the record that the plaintiffs delay resulted from simple neglect. Worden v. Francis, supra, 170 Conn. 188.

The plaintiffs offer of good cause does not comport with its meaning. Neglect, indifference, disregard of plainly applicable statutory authority and self-created hardship do not constitute good cause to excuse the delay in filing the motion to substitute in the appropriate court. Because the plaintiff has failed to show good cause, its motion to substitute is denied.

Having denied the motion to substitute, we must dismiss the appeal because we cannot adjudicate an appeal in the absence of proper parties. See Miko Bros., Inc. v. Lucas, 169 Conn. 641, 363 A.2d 1044 (1975); Barton v. New Haven, 74 Conn. 729, 52 A. 403 (1902). The death of Olyphant did not defeat the right of the plaintiff to appeal from the Probate Court’s approval of the sale of the property. But it was incumbent upon the plaintiff to take the necessary steps, pursuant to Practice Book § 4033, to revive the action on appeal. Because the plaintiff failed to take the necessary steps to preserve this appeal, its claim must fail.

The motion to substitute is denied and the appeal is dismissed.

In this opinion the other judges concurred.

       The defendants are William H. Wood, Jr., conservator of the estate of Hilda Rankin Olyphant, Denise O. Case and Karen Wand.

       The defendants first moved, separately, to dismiss the plaintiffs appeal claiming it was not aggrieved by the decree of the Probate Court and that it did not have standing to appeal the decision. These motions were denied by the Superior Court on August 25, 1995.

         Even though the Superior Court dismissed the appeal as moot, we have jurisdiction to determine whether that court had jurisdiction. See Gagnon v. Planning Commission, 24 Conn. App. 413, 418, 588 A.2d 1385 (1991), aff'd, 222 Conn. 294, 608 A.2d 1181 (1992).


text:
    WILLIAM J. WARREN v. COMMISSIONER OF MENTAL HEALTH ET AL.
    (14140)
    O’Connell, Spear and Hennessy, Js.
    Considered October 1
    officially released November 26, 1996

      John II. Williams, for the appellant (plaintiff).

      Patricia A. Gerner, assistant attorney general, with whom, on the brief, were Richard Blwmenthal, attorney general, and Richard J. Lynch, assistant attorney general, for the appellee (named defendant).

      John A. East III, deputy assistant state’s attorney, with whom, on the brief, was Michael Dearinglon, state’s attorney, for the appellee (defendant Michael Dearington).
   SPEAR, J.

The plaintiff in this declaratory judgment action appeals from the judgment of the trial court rendered in the defendants’ favor. In Warren v. Commissioner of Mental Health, 41 Conn. App. 221, 675 A.2d 6 (1996), we remanded the case to the trial court to determine whether reasonable notice was afforded to all parties having an interest in this matter. The trial court found that reasonable notice was given and we now reach the merits of the plaintiffs appeal. The sole issue on appeal is whether General Statutes §§ 17a-580 through 17a-603, as applied to the plaintiff, violate the ex post facto clause of the United States constitution.

The relevant facts are set forth in Warren v. Commissioner of Mental Health, supra, 41 Conn. App. 222-23. “The plaintiff was arrested on July 5,1971, and charged with the crime of murder [which was committed on that same day]. On February 27, 1974, a jury found the plaintiff not guilty by reason of insanity. The plaintiff, pursuant to General Statutes (Rev. to 1972) § 53a-47 (now §§ 17a-580 through 17a-603), was committed to the custody of the defendant commissioner of mental health for an indefinite period of time not to exceed twenty-five years. Section 53a-47, which took effect approximately three months after the commission of the criminal act, was the first statute that treated insanity ‘acquittees’ differently from persons who were otherwise involuntarily committed because of mental illness.

“The plaintiff brought this declaratory judgment action requesting that the trial court declare that §§ 17a-580 through 17a-603, as applied to him, are ex post facto laws in violation of the United States constitution. The plaintiff takes specific exception to the current statutory provisions that require acquittees seeking release to prove, by a preponderance of the evidence, that they are eligible for release from psychiatric confinement. The statute in effect on the date of the plaintiffs criminal act did not place such a burden on acquittees. The plaintiff also sought an injunction prohibiting the defendants from confining the plaintiff, or placing conditions on his release, pursuant to §§ 17a-580 through 17a-603.

“The trial court rejected the arguments of the plaintiff and rendered judgment in favor of the defendants. The trial court found that the statutory changes were procedural rather than substantive and thus concluded that ‘neither the change of the standard [of proof] nor the shift in burden [constituted] an ex post facto law as applied to [the plaintiff].’ This appeal by the plaintiff followed.”

The plaintiff claims that the trial court improperly found that §§ 17a-580 through 17a-603, as applied to him, do not violate the ex post facto clause of article one, § 10, of the United States constitution. He asserts that the statute in effect on the day the crime was committed should govern his confinement and release, not the current statutory scheme. We disagree.

The plaintiff claims that if he had been committed pursuant to the statutes in effect on the day he committed the murder, General Statutes (Rev. to 1968) § 17-178 et seq., the Probate Court would have governed his confinement and release, and would have applied the same standards for both insanity acquittees and involuntary civil committees. He claims that under the current statutes, he is required to prove by a preponderance of the evidence that he is eligible for release, whereas, as of the day of the murder, no such burden was imposed on insanity acquittees. Thus, he asserts that the changes in the law are punitive and constitute an ex post facto law.

It is well established that “the constitutional prohibition on ex post facto laws applie[s] only to penal statutes which disadvantage the offender affected by them.” Collins v. Youngblood, 497 U.S. 37, 41, 110 S. Ct. 2715, 111 L. Ed. 2d 30 (1990). “[C]hanges in procedural law do not ordinarily give rise to violations of the prohibition against ex post facto laws .... ‘[T]he constitutional provision was intended to secure substantial personal rights against arbitrary and oppressive legislation . . . and not to limit the legislative control of remedies and modes of procedure which do not affect matters of substance.’ Beazell v. Ohio, 269 U.S. 167, 171, 46 S. Ct. 68, 70 L. Ed. 216 (1925); see also Collins v. Youngblood, [supra, 37]. Moreover, the ex post facto clause prohibits astate only from passing a law ‘which imposes apunishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed . . . .’ Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 325-26, 18 L. Ed. 356 (1867), quoted in Weaver v. Graham, 450 U.S. 24, 28, 101 S. Ct. 960, 67 L. Ed. 2d 17 (1981).” Payne v. Fairfield Hills Hospital, 215 Conn. 675, 683, 578 A.2d 1025 (1990).

The defendants argue that the statutory scheme at issue is not subject to an ex post facto analysis because the plaintiff cannot establish either that he is being punished for conduct that was previously lawful, or that his punishment was increased. We agree.

Although the plaintiff was confined pursuant to an adjudication in the criminal justice system, our Supreme Court has held that “the confinement of insanity acquittees ... is not ‘punishment’ for a crime.” Id., 684; Jones v. United States, 463 U.S. 354, 368-69, 103 S. Ct. 3043, 77 L. Ed. 2d 694 (1983). In Payne v. Fairfield Hills Hospital, supra, 215 Conn. 682, the plaintiff challenged the constitutionality of General Statutes § 17-257b, claiming that changes in the law, as applied to him, violated the ex post facto clause because it retroactively “impose[d] more burdensome procedures than those in effect . . . when he [was confined].” Payne based his challenge on two changes in the law: (1) it required the superintendent of the hospital in which he was confined to seek an order from the psychiatric security review board to release him on temporary leave, and (2) the statute shifted the burden of proving that he is not mentally ill or dangerous to the acquittee. Id. The court held that the shift of authority from the Probate Court to the psychiatric security review board was not a violation of the ex post facto clause, but found that Payne’s claims relating to the shift of the burden of proof were purely speculative and declined to decide them. Nevertheless, the court noted that “[t]he purpose of commitment following an insanity acquittal, like that of civil commitment, is to treat the individual’s mental illness and protect him and society from his potential dangerousness. The committed acquittee is entitled to release when he has recovered his sanity or is no longer dangerous. . . . As he was not convicted, he may not be punished.’ ” Id., 683-84; see also Franklin v. Berger, 211 Conn. 591, 560 A.2d 444 (1989) (insanity acquittee not entitled to credit against period of confinement for pretrial jail time served, although persons convicted of crimes and sentenced to prison would receive credit, because sole factor in length of confinement is acquittee’s mental health).

Because the plaintiff cannot demonstrate that his confinement is “punishment,” we conclude that the shift of the burden of proof to him to demonstrate that he is suitable for release does not constitute an ex post facto law.

The judgment is affirmed.

In this opinion the other judges concurred.

       The constitution of the United States, article one, § 10, provides: “No state shall . . . pass any bill of attainder [or-] ex post facto law

       General Statutes § 17a-580 (1) defines “acquittee” as “any person found not guilty by reason of mental illness or defect . . . .”

       General Statutes (Rev. to 1968) §§ 17-176 through 17-205a were in effect on the date of the murder Section 17-178 provided in relevant part: “If, [after a] hearing, ihe [probate] court finds that the person complained of is mentally ill and a fit subject for treatment in a hospital for mental illness or that he ought to be confined, it shall make an order for his commitment to a hospital for mental illness to be named in such order, there to be confined while such mental illness continues or until he is discharged in due course of law .... Such court may, after a hearing, when it finds it to be for the best interest of the person so committed, revoke such order of commitment.” At the time of the murder, there was no statutorily defined standard of proof.

       General Statutes (Rev. to 1972) § 53a-47 (c), the statute under which the plaintiff was committed, went into effect on October 1, 1971, three months after the date of the murder. It, provided in pertinent part that “[u]pon certification by the superintendent of the hospital or institution that, in his opinion, such person is no longer mentally ill to the extent that his release would constitute a danger to himself or others, the court may order the release of the person confined at the expiration of thirty days from the time such certificate is filed. (2) At the time such certificate is filed with the court, a copy shall be furnished to the state’s attorney or prosecutor who may request a hearing as to whether such person should be released. At such hearing, evidence of mental condition may be submitted. The confined person shall be released unless the state establishes by a preponderance of the evidence that such person is, at the time of hearing, mentally ill to the extent that his release would constitute a danger to himself or others. . . .”
      Under the current statutory scheme, General Statutes §§ 17a-580 through 17a-603, the plaintiffs confinement and release is governed by the psychiatric security review board. In order to secure his release from confinement, the plaintiff “shall have the burden of proving by a preponderance of the evidence that [he] is a person who should be discharged.” General Statutes § 17a-593 (f).

       The ex post facto clause also prohibits any law “which deprives one charged with crime of any defense available according to law at the time when the act was committed.” (Internal quotation marks omitted.) Dobbert v. Florida, 432 U.S. 282, 292, 97 S. Ct. 2290, 53 L. Ed. 2d 344 (1977), quoting Beazell v. Ohio, supra, 269 U.S. 169-70. The plaintiff in this case does not claim that he is being deprived of a defense previously available to him.

       The court found that Payne’s claim regarding the change in the burden of proof was speculative because “[s]ince the effective date of the act, [Payne] has sought neither a temporary leave nor his permanent discharge.” Payne v. Fairfield Hills Hospital, supra, 215 Conn. 684. In this case, the record does not indicate whether the plaintiff has sought release under the current statutory scheme, although at oral argument, his counsel asserted that he had. The plaintiff filed this declaratory judgment action in order to determine which standard of proof will govern his future requests for release.


author: HENNESSY, J.

text:
    ARKIN-MEDO, INC. v. COMMISSIONER OF REVENUE SERVICES
    (15119)
    Dupont, C. J., and Lavery and Hennessy, Js.

      Submitted on briefs September 20
    officially released November 26, 1996

      Michael L. Coyle and Lawrence H. Lissitzyn filed a brief for the appellant (plaintiff).

      Richard Blumenthal, attorney general, and Rachel O. Davis, assistant attorney general, filed a brief for the appellee (defendant).
   HENNESSY, J.

The plaintiff, Arkin-Medo, Inc., a New York corporation, appeals from the trial court judgment upholding a decision by the defendant commissioner of revenue services assessing a tax on the plaintiffs sale of printing materials in Connecticut. The issues set forth by the plaintiff arise from the interpretation of the sales and use tax statute, General Statutes (Rev. to 1989) § 12-410, as it applies to the sale of prepress commercial products by the plaintiff to commercial printers in Connecticut.

The trial court found that, with a few exceptions, the contested resale certificates held by the plaintiff, which are the focus of this appeal, were invalid because they were accepted for items not sold for resale and were, therefore, subject to a use tax. The plaintiff appeals from the trial court judgment imposing a tax liability for these contested sales. It argues that the trial court improperly concluded that the plaintiff did not take resale certificates from its customers in good faith as required by § 12-410. We reverse the judgment of the trial court.

Section § 12-410 requires the seller of personalty to pay a sales tax on gross receipts derived from the sale unless the seller can prove that the property was to be sold at retail by the purchaser. Taking in good faith a certificate that states that the property is purchased for resale relieves the seller from the burden of proof. The plaintiff contends that an application of the plain language of § 12-410 to the facts of this case will result in relief from the tax burden imposed by the defendant and upheld by the trial court. Under the plaintiffs interpretation of § 12-410, the seller need not present any proof other than a certificate taken from the purchaser at the time of the purchase that states that the property is purchased for resale or that the purchaser does not know if the property will be sold or used by the purchaser for another purpose.

The defendant responds that the trial court properly affirmed the imposition of a tax because the plaintiff did not accept the certificates in good faith as required by § 12-410 (2) and as elucidated by § 12-426-1 (c) of the Regulations of Connecticut State Agencies. The defendant cites cases from Kentucky and an article from American Jurisprudence to define the term “good faith,” as used in the statute and the regulation. These sources define the good faith requirement as prohibiting “blind acceptance” of resale certificates and requiring “inquiries or ascertainments of facts” to show that the property offered for sale is normally offered for resale in the type of business operated by the purchaser. 68 Am. Jur. 2d, Sales and Use Tax § 255 (1993). The defendant claims that the plaintiff did not meet these requirements.

The trial court held that the determination of good faith is a common sense process that requires the court to ask what reasonable inferences can be drawn from the facts known to the seller. If these inferences reasonably lead to the conclusion that the property being purchased will probably not be resold, the sale is not a sale for resale no matter how many resale certificates have been signed. If these inferences lead to the conclusion that the property probably will be resold, the good faith requirement has been met. Furthermore, the trial court held that if the facts available to the seller at the time of sale reasonably indicate that the purchaser is unable to ascertain at the time of purchase whether the property will be sold or used for some other purpose, the seller may accept a resale certificate in good faith.

Where a purchaser takes a resale certificate upon the sale of a product, part of which may be sold at retail and part of which may be used in the process, the trial court interpreted the good faith component of the statute to require the seller to use its knowledge of the business to determine how the product will be used. The trial court further held that when a seller takes a resale certificate from a purchaser who is unable to ascertain at the time of purchase whether the property will be sold or used for some other purpose, the statute requires an examination into whether the product is divisible or indivisible to determine good faith acceptance of the resale certificate. If the product is not divisible, it will either be sold at retail and a sales tax will be collected or it will be used in the process and the purchaser will pay a sales tax pursuant to § 12-410 (4) (a). If the property is divisible so that part may be used in the process and part sold at retail, the trial court held that the appropriate way to analyze the purchase is by use of the primary purpose test: “It is the primary purpose for which the personal property was purchased and put to use that controls the determination of the property’s taxability.” American Totalisator Co. v. Dubno, 210 Conn. 401, 409, 555 A.2d 414 (1989). In addition, the trial court noted that statutes creating tax exemptions must be strictly construed against the party claiming the exemption and, as such, the resale certificate is valid only if the property sold was clearly for resale rather than use by the purchaser.

Applying its interpretation of § 12-410, the trial court concluded that the plaintiff failed to demonstrate good faith in accepting most of the certificates. It found that the plaintiff should have discerned from its knowledge of the business that the products would not be resold. It further found that the primary purpose for the use of many of the divisible products was other than for resale. The trial court also noted that although a percentage of some of the products were actually resold, the amount was de minimis and, therefore, did not constitute a sale for resale. We disagree with the trial court’s interpretation of § 12-410.

Except for the good faith requirement, the statutory scheme that flows from the wording of § 12-410 is very clear. The seller of personalty must pay a tax on the gross receipts derived from the sale of that personalty unless the seller can prove that it was a sale for resale. If that can be proved, the seller is not liable for the payment of the tax. The statutorily approved method of proving that the property was purchased for resale is for the seller to take a certificate from the purchaser so stating. The certificate must be accepted in good faith from a person who is engaged in the business of selling tangible personal property, holds the proper permit and intends to sell it in the regular course of business. Accepting a certificate in good faith that declares that the buyer is unable to ascertain at the time of purchase whether the property will be sold or used for some other purpose is also a statutorily approved method of relieving the seller from the burden of proof. The term good faith as used in § 12-410 has not been defined in our statutes or in our case law.

In the present case, the trial court held that good faith exists if the plaintiff can demonstrate that the property sold is for resale or that, if the product is divisible, the primary purpose of the product is for resale. We find that under § 12-410, good faith acceptance of a resale certificate is more broadly defined. Unless the seller has “knowledge of facts which give rise to a reasonable inference that the purchaser does not intend to resell the property,” the certificate has been accepted in good faith and is valid. Regs., Conn. State Agencies § 12-426-1.

We further conclude that the trial court improperly placed the tax liability on the taxpayer-seller in the situation where the purchaser, after giving a certificate, uses the property for a purpose other than resale. In such cases, the statute provides that the purchaser bears the tax liability. See General Statutes (Rev. to 1989) § 12-410 (4). The statute applies in the same manner where the purchaser certifies that it is unable to ascertain whether the property will be sold or used for some other purpose. In both situations, the purchaser who gives a certificate to the seller will either pay the tax as a use tax or collect the tax as a sales tax. The tax, therefore, will not be evaded.

Here, the purchasers are all in the business of selling tangible property and hold the proper permit. They have issued certificates to the plaintiff stating that they intend to sell the property purchased. Section 12-410 requires the plaintiff to demonstrate only that it reasonably believed that the purchasers intended to resell the property in order to show good faith. The trial court improperly placed the further burden on the plaintiff to ascertain the intention of the purchaser when the purchaser itself certified that it did not know how it would use the product. It also improperly required the plaintiff to evaluate whether the property sold was divisible or indivisible and to determine its primary purpose. We conclude that the statute does not require the plaintiff to make such further inquiries to comply with the good faith requirement.

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

In this opinion the other judges concurred.

       In February 1991, the commissioner of revenue seivices commenced an audit of Arkin-Medo, Inc. The period ultimately audited was January 1,1988, to September 30, 1991. In actually performing the audit, the parties agreed that Arkin-Medo’s Connecticut sales during the month of August, 1990, would be audited in detail. All of the disputed sales that are the subject matter of this case occurred during that month.

       General Statutes (Rev. to 1989) § 12-410 provides in relevant part: “Presumptions and resale certificates. (1) Presumption of taxability; resale certificate. For the purpose of the proper administration of this chapter and to prevent evasion of the sales tax it shall be presumed that all gross receipts are subject to the tax until the contrary is established. The burden of proving that a sale of tangible personal property or service is not a sale at retail is upon the person who makes the sale unless he takes from the purchaser a certificate to the effect that the property is purchased for resale.
      “(2) Effect of certificate. The certificate relieves the seller from the burden of proof only if taken in good faith from a person who is engaged in the business of selling tangible personal property and who holds the permit provided for in section 12-409 and who, at the time of purchasing the tangible personal property, intends to sell it in the regular course of business or is unable to ascertain at the time of purchase whether the property will be sold or will be used for some other purpose ....
      “(4) Liability of purchaser, (a) If a purchaser who gives a certificate malees any use of the service or property other than retention, demonstration or display while holding it for sale in the regular course of business, the use shall be deemed a retail sale by the purchaser as of the time the service or property is first used by him, and the cost of the service or property to him shall be deemed the gross receipts from such retail sale. . . .”

       Section 12-426-1 (c) of the Regulations of Connecticut State Agencies provides: “The good faith of the seller will be questioned if he has knowledge of facts which give rise to a reasonable inference that the purchaser does not intend to resell the property, as, for example, knowledge that a purchaser of particular merchandise is not engaged in the business of selling that kind of merchandise.”

        See Dept. of Revenue v. Warren Chemical & Janitor Supply Co., 562 S.W.2d 644, 646 (Ky. 1978); Pace Membership Warehouse, Inc. v. Revenue Cabinet, Commonwealth of Kentucky, 808 S.W.2d 353, 355 (Ky. App. 1991).

       The trial court found that this situation wherein the purchaser certifies that it does not know how it will use the product occurs because many commercial printers engage in trade shop work. In this type of work, the purchaser sells the product to other commercial printers. The court noted that “[m]any commercial printers, when they buy [the plaintiffs] products, do not know whether they will use those products for trade shop work or commercial printing.”

       See footnote 2.

       “SI atutes which exempt, from taxation are to be strictly construed against the party claiming an exemption.” Connecticut Theater Foundation, Inc. v. Brown, 179 Conn. 672, 677, 427 A.2d 863 (1980). The plaintiff taxpayer claims that § 12-410 is a tax imposition statute and, therefore, should be construed in its favor. The defendant contends that § 12-410 is an exemption statute and as a result should be strictly construed in its favor. The trial court held, without elaboration, that § 12-410 provides for an exemption and must, therefore, be strictly construed against the party claiming an exemption, in this case, the plaintiff.
      We find that although § 12-410 is an exemption statute; see White Oak v. Dept. of Revenue Services, 198 Conn. 413, 421, 503 A.2d 582 (1986); the statutory scheme relieves the plaintiff from proving that its sale of personalty is for resale if it takes a certificate from the purchaser in good faith.

       We note that § 12-410 (2) was amended in 1995 to provide in pertinent part: “A certificate . . . shall be deemed to be taken in good faith if the . . . property purchased is similar to or of the same general character as property which the seller could reasonably assume would be sold by the purchaser in the regular course of business.”

       The case cited by the defendant, White Oak Corp. v. Dept. of Revenue Services, 198 Conn. 413, 421, 503 A.2d 582 (1986), claiming to support the proposition that the resale exemption may be used only if the property sold was clearly for resale is distinguishable because it did not involve resale certificates. In White Oak Corp., the issue before the court was whether White Oak Corporation should be assessed a use tax on the property and services sold to the department of transportation because White Oak Corporation “used” them to fulfill its contracts. The court determined that White Oak Corporation was hable for the tax. White Oak Corporation did not, however, possess a resale certificate, as the plaintiff does in this case.

       We note that the state approved resale certificate form given by the purchaser to the seller contains the following statement: “I further certify that if any property so purchased tax free is used or consumed by the firm as to make it subject to a sales or use tax we will pay the tax due direct to the proper taxing authority when state law so provides or inform the seller for added tax billing.”


author: FOTI, J.

text:
    TIMBERLAND DEVELOPMENT CORPORATION v. PLANNING AND ZONING COMMISSION OF THE TOWN OF EAST HAVEN ET AL.
    (15195)
    Foti, Schaller and Shea, Js.
    Argued October 2
    officially released November 26, 1996

      Benson A. Snaider, with whom, on the brief, was Kellie J. Gamer, for the appellant (plaintiff).

      James A. Mongillo, with whom, on the brief, was Hugh F. Keefe and James V. Somers, for the appel-lees (defendants).
   FOTI, J.

The plaintiff appeals from the judgment of the trial court granting the defendants’ motion for summary judgment. The complaint was brought in three counts, the first for tortious interference with economic relations, the second for breach of a duty of care, and the third pursuant to 42 U.S.C. § 1983. The plaintiff sought compensatory damages, and, additionally, in the third count, punitive damages. We affirm the trial court’s granting of the defendants’ motion for summary judgment as to the first two counts; we reverse the judgment as to the third count.

The following facts and procedural history are necessary for a proper disposition of this appeal. The plaintiff purchased an option to buy a parcel of land, known as 495 Foxon Road, for $25,000. It is located in an R 3 zone. On February 12, 1988, the plaintiff submitted a petition to the named defendant, the East Haven planning and zoning commission (commission), for the establishment of a planned elderly facility district on this parcel. It also submitted studies, plans and test results, including a soil report, a traffic report, a wetlands permit and information regarding expected monthly charges to be made to the residents of that proposed elderly care facility. On September 7, 1988, after a public hearing, the plaintiffs request for a zone change and special exception was denied by the commission.

The plaintiff appealed to the Superior Court. The trial court, Cretella, J., sustained its appeal, filing an eight page memorandum of decision on July 28, 1989, in which it ruled that the commission had improperly considered the application under an incorrect section of the East Haven zoning regulations. Although sustaining the appeal, the trial court did not order a remand, but rather concluded as follows: “Accordingly, the relief sought by the plaintiff to have the application approved in addition to sustaining the appeal cannot be granted since the commission was entitled to consider under § 27 many of the identical conditions that are set forth in § 32. In future consideration of this matter, the board must be limited to considering only those provisions of § 27 of the zoning regulations.”

On September 11, 1989, the plaintiff filed a motion in aid of judgment, requesting the court to enter an order “directing the commission to decide [the plaintiffs] application on its merits in accordance with the memorandum of decision in the case and in accordance with the provisions of section 27 of the zoning regulations.” The trial court denied the plaintiffs request for an order of remand. Also on September 11, 1989, the plaintiff, through counsel, requested in writing to the commission that the matter be set down for a rehearing and reconsideration, and requested notification of the date that it would be on the agenda of the commission. The commission ignored the plaintiffs request for a hearing or rehearing of the previously filed application.

On March 23, 1990, the plaintiff filed the complaint in the trial court that is the subject of this appeal. In granting the defendants’ motion for summary judgment, the trial court found, as the parties had agreed, that no genuine issue of material fact existed. The plaintiff had neither addressed nor supported its first two counts in its brief, and the trial court determined that those counts had been abandoned. The court concluded, however, that the defendants were also entitled to judgment as a matter of law on the third count. In considering the procedural and substantive due process claims asserted by the plaintiff in the third count, the trial court concluded that the plaintiff had failed to demonstrate that it had a clear entitlement to the commission action it sought. It determined that the plaintiffs substantive due process claim was defeated by the discretion given to the commission by the regulations. It further determined that the plaintiff s procedural due process claim was defeated because “the plaintiff did not comply with the procedures of § 27 of the East Haven zoning regulations respecting informal meetings and submissions of documents, and thus did not properly request a hearing nor submit an application [i.e., a second formal petition for the establishment of a planned elderly facilities district subsequent to the sustaining of the appeal brought by the plaintiff].”

Our review of the trial court’s ruling on a motion for summary judgment is limited to whether the trial court incorrectly determined that there was no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Practice Book § 384; Grimes v. Housing Authority, 42 Conn. App. 324, 328, 679 A.2d 397 (1996). Because we agree with the trial court and the parties that there is no claim that there is a genuine issue of material fact, the dispositive issue before us is whether the defendants were entitled to judgment as a matter of law. West Haven v. Hartford Ins. Co., 221 Conn. 149, 155, 602 A.2d 988 (1992); Zichichi v. Middlesex Memorial Hospital, 204 Conn. 399, 402, 528 A.2d 805 (1987). The dispute between the parties does not arise out of contested versions of the facts, but out of the legal significance of the facts as they relate to the legal rights and duties of the parties. See Pinheiro v. Board of Education, 30 Conn. App. 263, 268, 620 A.2d 159 (1993).

I

Our review of the record discloses that the plaintiff failed to brief or address, in its motion for summary judgment, its claim for tortious interference with economic relations, or its claim for breach of duty. The plaintiff, in failing to brief these issues properly, either in connection with its motion for summary judgment or thereafter, has abandoned them. Gaynor v. Union Trust Co., 216 Conn. 458, 482, 582 A.2d 190 (1990). Therefore, we will not address them.

II

The plaintiff claims that the trial court improperly rendered summary judgment for the defendants, as a matter of law, in ruling that it did not “properly request a hearing nor submit an application,” and therefore was not deprived of its procedural due process rights. We agree that, as a matter of law, summary judgment was improperly rendered.

The defendants argue that the plaintiff never properly applied for a hearing, subsequent to the Superior Court’s sustaining its appeal, that it never submitted a “formal petition” and “did not properly request and apply for a hearing on its application.” They argue that “[i]n doing nothing besides sending this letter to the [commission], the plaintiff failed to follow § 27 of the East Haven Zoning Regulations,” which requires a formal petition. They also argue that the plaintiff, who spent approximately $60,000 in the original proceeding, together with plans and studies, must initiate an entirely new proceeding.

Our Supreme Court has indicated that where the court considers the action of an agency illegal, arbitrary or in abuse of its discretion, the court should go no further than to sustain the appeal taken from its action, and not order a remand with direction. Bogue v. Zoning Board of Appeals, 165 Conn. 749, 753-54, 345 A.2d 9 (1974). If it does not appear as a matter of law that there is only one single conclusion that a commission could reasonably reach, a remand with direction is unwarranted. Thorne v. Zoning Commission, 178 Conn. 198, 206, 423 A.2d 861 (1979). “Once the appeal [is] sustained, it [is] of course, the duty of the defendant board to proceed according to law whether or not the court specifically directed that it do so.” Bogue v. Zoning Board of Appeals, supra, 756.

While we recognize that a commission is entrusted with the function of interpreting and applying its regulations; Samperi v. Planning & Zoning Commission, 40 Conn. App. 840, 844, 674 A.2d 432 (1996); we do not agree that § 27.2 of the East Haven zoning regulations requires more than one formal petition for the establishment of a planned elderly facilities district. When the Superior Court sustained the plaintiffs appeal, it did not void or remove the presently pending petition that had been submitted by the plaintiff on February 12, 1988, pursuant to § 27 of the town regulations. The court specifically determined, properly without a remand, that “in future consideration of this matter, the board must be limited to considering only those provisions of § 27 of the zoning regulations.” By “this matter,” the court was obviously speaking of the pending application, because if not for that “formal petition” there was nothing before the court. While we conclude that the commission was not automatically obligated to rehear the matter on its own initiative, the plaintiffs letter of September 11, 1989, acknowledged as received by the defendant commission, was sufficient to require the commission to “proceed according to law.” Bogue v. Zoning Board of Appeals, supra, 165 Conn. 756. That notice served as a proper request for a hearing on the application before the commission. The plaintiff was not required under the regulations of the town of East Haven to resubmit its application. Any impropriety in the procedure involving the initial petition was committed by the defendant commission and not by the plaintiff. The trial court incorrectly determined that the plaintiff did “not properly request a hearing nor submit an application.” Having submitted its initial application and having properly requested a hearing on that application following the court’s sustaining of its appeal, the plaintiff, as a matter of law, was entitled to a hearing. At that point, the commission had no discretion and was obligated to schedule a hearing. We conclude, therefore, that summary judgment was improperly rendered as to the third count.

The judgment is reversed as to count three and the matter is remanded for further proceedings on that count.

In this opinion the other judges concurred.

       In addition to the named defendant, the following members and alternates of the commission were also named as defendants: Ronald Mazzucco, Alfred J. Crank, Frank Cappelloni, William Lockery and Anthony Bagnoli, Jr.

       The record indicates that the trial court ordered the parties to submit cross motions for summary judgment; the plaintiffs motion for summary judgment was denied.

       The plaintiffs third count alleges that the defendants, “under color of law . . . knowingly conspired between and among themselves and aided and abetted one another in the unlawful denial of the plaintiffs fundamental right and statutory entitlement to develop its property and its right to private contract and thereby deprived [it] of its constitutional rights in violation of the Fifth and Fourteenth Amendments to the United States Constitution, Article I, Sections 8 and 11 of the Constitution of the State of Connecticut, and 42 U.S.C. Section 1983.”

       Appeals from zoning commissions and planning and zoning commissions are taken pursuant to General Statutes § 8-9. The Superior Court, after a hearing, “may reverse or affirm, wholly or partly, or may modify or revise the decision appealed from.” General Statutes § 8-8 (f).

       During the hearing on the plaintiffs motion, the trial court was concerned about the necessity for a public hearing and inquired, “[I]s it possible to give [the plaintiff] a public hearing without requiring that he spend another $50,000 to put the package together?” Thereafter, counsel for the defendant commission stated: “[To] the extent that it carries any weight, I would recommend to the board and the attorneys [representing the board] that they consider giving a new public hearing with documents that have already been studied and the studies already furnished. To the extent they need any updating, they can update them. I think that’s appropriate.”
      The court thereafter commented: “Now if we were to start from scratch again from square one and have the funds and the persistence to go through it all, we know that sometime he would have eventually ended up with this hearing. All I’m saying is that it might be equitable for the board to give him the hearing without that necessity.” The court concluded: “If I could remand it, I would have but I couldn’t.”

       Section 27.2 of the East Haven zoning regulations provides: “PRE-SUBMISSION CONSIDERATION: The Commission recommends that, prior to the submission, formal petition for the establishment of a Planned Elderly Facilities District, the petitioner review with the Commission and its staff in a preliminary and informal manner any proposal for a Planned Elderly Facilities District. The Commission recommends that four (4) copies of preliminary plans be submitted, meeting the basic requirements for General Development Plans under Paragraph 27.4.2 together with such additional information that may be necessary to possibly render a non-binding opinion by the Commission.”

       Where an appeal is sustained because of invalid or insufficient findings, however, a remand may be proper to the agency for further consideration. Gorman Construction Co. v. Planning & Zoning Commission, 35 Conn. App. 191, 199, 644 A.2d 964 (1994).


text:
    STATE OF CONNECTICUT v. CARL CARTER
    (15077)
    O’Connell, Spear and Stoughton, Js.
    Argued September 26
    officially released November 26, 1996

      Dennis F. O’Toole, assistant public defender, for the appellant (defendant).

      Margaret Gaffney Radionovas, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and John Fahey, deputy assistant state’s attorney, for the appellee (state).
   SPEAR, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of larceny in the third degree in violation of General Statutes § 53a-124 (a) (l), using a motor vehicle without the owner’s permission in violation of General Statutes § 53a-119b (a) (l), and tampering with a motor vehicle in violation of § 53a-119b (c) (l). His sole claim is that guilty knowledge is an essential element of each offense and the evidence was insufficient to prove such knowledge. We disagree and affirm the judgment of the trial court.

The jury reasonably could have found the following facts. Gregory I. Godston, a coowner of Ultimate Automotive, left his place of business at approximately 6:30 p.m. on August 24, 1993. At that time, a brown 1984 Dodge 600 was on the lot with its windows intact. When Godston arrived at work the next morning the Dodge was not on the lot, and its keys, which were ordinarily kept on a key rack, were missing. Godston had not given anyone permission to use or take the car and immediately reported to the Cromwell police department that the car had been stolen.

On or about September 27, 1993, Detective Fernand Johnson of the Hartford police department observed a brown Dodge 600 on Middlefield Street in Hartford. The rear window on the passenger side was broken and the engine was running. Johnson ran a check on the registration plate and learned that the plate did not belong on the Dodge. Upon approaching the car, Johnson noticed that the key was in the ignition and the engine was running. The defendant was not able to produce the registration for the vehicle, and a check of the vehicle identification number revealed that it was stolen. The defendant stated that he was waiting for someone and that he was moving the car.

The defendant and a certain young person, whom the defendant referred to as a “kid,” had both operated the stolen car during the two weeks or so prior to September 27, 1993. The youth’s father, who was considered a brother-in-law by the defendant, lived in the same residence as the defendant, where the youth was a frequent visitor. The defendant, who was friendly with the youth, knew at the time that he was in a program at Long Lane School, a facility for delinquent children.

The defendant was arrested and convicted after a jury trial. The trial court denied the defendant’s motion for judgment of acquittal that was based on a claim of insufficient evidence to prove that the defendant had the requisite guilty knowledge for conviction on each of the offenses. This appeal followed.

The defendant claims that the evidence was insufficient to establish that he knew that the car was probably stolen, or that he did not have the owner’s permission to use, operate or put the car’s engine into motion. He testified that he received permission to operate the car from the youth, who told him that the car belonged to his mother.

We determine whether the evidence is sufficient to support a jury verdict by employing a familiar two part test. “ ‘We first review the evidence presented at trial, construing it in the light most favorable to sustaining the facts expressly found by the trial court or impliedly found by the jury. We then decide whether, upon the facts thus established and the inferences reasonably drawn therefrom, the trial court or the jury could reasonably have concluded that the cumulative effect of the evidence established the defendant’s guilt beyond a reasonable doubt.’ ” State v. Joyner, 225 Conn. 450, 455, 625 A.2d 791 (1993). “ ‘[I]n viewing evidence which could yield contraiy 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. The rule is that the jury’s function is to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical.’ ” State v. Sivri, 231 Conn. 115, 132-33, 646 A.2d 169 (1994). “It is well settled that in reviewing a defendant’s challenge to a verdict based on insufficient evidence, we defer to the jury. We do not sit as a seventh juror empowered to cast an overriding vote over the jury of six that actually heard the case.” State v. Brunori, 22 Conn. App. 431, 434-35, 578 A.2d 139, cert. denied, 216 Conn. 814, 580 A.2d 61 (1990). Our Supreme Court has stated that “ ‘the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational tiler of fact could have found the essential elements of the crime beyond a reasonable doubt. . . .’ ” (Citation omitted; emphasis in original.) State v. Scielzo, 190 Conn. 191, 197, 460 A.2d 951 (1983).

The defendant filed a motion for judgment of acquittal after the verdict of guilty, pursuant to Practice Book § 899. Our review, therefore, encompasses the defendant’s evidence as well as the evidence presented by the state. State v. Rutan, 194 Conn. 438, 444, 479 A.2d 1209 (1994).

The defendant was charged with larceny in the third degree as a receiver of stolen goods. Thus, proof that the defendant received the car “knowing that it has probably been stolen” was required. General Statutes § 53a-119 (8); State v. Polanco, 26 Conn. App. 33, 44, 597 A.2d 830, cert. denied, 220 Conn. 926, 598 A.2d 367 (1991). Possession of stolen property, standing alone, does not give rise to an inference that the possessor knew that the property was probably stolen. State v. Anonymous (83-FG), 190 Conn. 715, 721, 463 A.2d 533 (1983). “ ‘Ordinarily, guilty knowledge can be established only through an inference from other proved facts and circumstances. The inference may be drawn if the circumstances are such that a reasonable man of honest intentions, in the situation of the defendant, would have concluded that the property was stolen.’ ” In re Adalberto S., 27 Conn. App. 49, 53, 604 A.2d 822, cert. denied, 222 Conn. 903, 606 A.2d 1328 (1992).

The facts and circumstances of this case do give rise to an inference of guilty knowledge. First, our courts have recognized that recent possession of stolen property may give rise to an inference that the possessor knew that the property was stolen. State v. Rivera, 39 Conn. App. 96, 104, 664 A.2d 306, cert. denied, 235 Conn. 921, 665 A.2d 908 (1995); State v. Roscoe, 212 Conn. 223, 249, 563 A.2d 267 (1989), cert. denied, 493 U.S. 1084, 110 S. Ct. 1144, 107 L. Ed. 2d 1049 (1990); State v. Palkimas, 153 Conn. 555, 558-59, 219 A.2d 220 (1966). Furthermore, other facts also support an inference that the defendant’s behavior was not that of a reasonable person of honest intentions. The defendant failed to check with the youth’s mother despite the fact that he knew the youth’s family and he knew of the youth’s probable delinquency. As the defendant concedes, the jury was not required to accept his testimony as true. The jury had been instructed by the trial court that guilty knowledge is an essential element of each crime, and the jury, in reaching its verdict, rejected the defendant’s claim that he lacked such knowledge and properly inferred the requisite knowledge. On review of all of the evidence, we conclude that a rational trier of fact could find that the defendant had the requisite knowledge to support his conviction of larceny in the third degree.

The defendant also claims that the evidence was insufficient to prove that he knew that he did not have the owner’s permission to operate the car. The short answer to this assertion is that the jury was not required to accept all of the defendant’s evidence as true, or to view the defendant’s dealings with the youth with respect to the car as innocent. If the jury chose not to believe the defendant, the evidence that the owner did not give permission to the defendant or anyone else to remove the car from his premises or use it was sufficient, in conjunction with the other circumstances, to convict the defendant of using a motor vehicle without the owner’s permission and tampering with a motor vehicle. This is so even if we assume, without deciding, that In re Adalberto S., supra, 27 Conn. App. 49, requires proof of guilty knowledge on the part of an individual who is charged with operating a motor vehicle without the owner’s permission. Such guilty knowledge properly could be inferred from the evidence presented in this case.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-124 (a) (1) provides in pertinent part: “A person is guilty of larceny in the third degree when he commits larceny as defined in section 53a-119 and: (1) The property consists of a motor vehicle, the value of which is five thousand dollars or less . . . .”
      General Statutes § 53a-119 provides in pertinent part: “(8) A person is guilty of larceny by receiving stolen property if he receives, retains, or disposes of stolen property knowing that it has probably been stolen or believing that it has probably been stolen . . .

       General Statutes § 53a-119b (a) provides in pertinent part: “A person is guilty of using a motor vehicle without the owner’s permission when: (1) He operates or uses, or causes to be operated or used, any motor vehicle unless he has the consent of the owner . . . .”

       General Statutes § 53a-119b (c) provides in pertinent part: “A person is guilty of interfering or tampering with a motor vehicle when: (1) He puts into motion the engine of any motor vehicle while it is standing without the permission of the owner . . .

       The trial court ordered the file sealed to protect the identity of the young person.

       General Statutes § 17a-12 (c) provides in pertinent part that “(1) any delinquent child may be placed at any time in Long Lane School . . . .”

       Practice Book § 899 provides in relevant part: “If the jury return a verdict of guilty, the judicial authority, upon motion of the defendant or upon its own motion, shall order the entry of a judgment of acquittal as to any offense specified in the verdict, or any lesser included offense, for which the evidence does not reasonably permit a finding of guilty beyond a reasonable doubt. ...”

       The youth was not called as a witness.

       In In re Adalberto S., supra, 27 Conn. App. 55, we held that the evidence was insufficient to convict a passenger in a stolen car of using a motor vehicle without the owner’s permission where, although the evidence proved that the owner of the car did not give permission to that defendant, the state failed to prove lack of permission as to the other persons in the car. We stated that as to a passenger, the state must prove that no one in the car had the owner’s permission to use the vehicle and that the defendant passenger knew of that lack of permission. Id., 53.