author: DUPONT, J.

text:
    LUELLA W. DAVIS ET AL. v. TOWN OF WESTPORT ET AL.
    (AC 19685)
    Lavery, C. J., and Sehaller and Dupont, Js.
    Argued November 2, 2000
    officially released February 20, 2001

      Walter A. Flynn, Jr., with whom, on the brief, was Jo-AnnR. Sensale, forthe appellant (named defendant).

      Robert H. Rubin, for the appellee (named plaintiff).
   Opinion

DUPONT, J.

The defendant town of Westport appeals from the judgment of the trial court reducing the assessment of certain of the real property of the plaintiff Luella W. Davis. The defendant claims that (1) the court should have held a hearing on its objection to the report of an attorney trial referee, (2) the plaintiff could not prevail on her claim of an unjust tax and unfair share of the municipal tax burden in the absence of fair market value evidence, (3) the plaintiff could not appeal except in a revaluation year and (4) the court improperly awarded expert testimony costs. We set aside the award of appraisal fees and affirm the judgment of the trial court in all other respects.

The parties do not dispute the relevant facts or procedural history. In 1993, the plaintiff and her husband, Martin S. Davis, purchased the property known as 60 Beachside Avenue in Westport. The property contained approximately 2.92 acres and had an assessed land value of $917,840. In 1995, the plaintiff and Martin S. Davis acquired the immediately adjacent property known as 62 Beachside Avenue, containing about three acres. The town assessor determined that the assessed land value of that parcel was $1,309,000. The value assessments represented the fair market values for the land that the assessor had determined for the grand list of October 1,1985, which was when the last revaluation of all real property in Westport occurred.

The Davises then filed an application with the West-port planning and zoning commission (commission) to build a new single family residence comprised of nearly 13,000 square feet that would straddle the boundary line of the two lots. On June 15, 1995, the commission issued a resolution concerning the Davises’ application. The commission conditioned its coastal area management approval of the application on a merger of the two lots. The Davises abided by the condition and merged the two properties into one 5.39 acre lot. They demolished the existing structures on the two lots and constructed one new home. This appeal does not involve the fair market value of the new home, but involves, rather, the 1985 assessment of the consolidated lot. The lot is a premier piece of shorefront property with 1000 feet of frontage on Long Island Sound.

The assessor combined the properties into one on the grand list of October 1, 1995, and modified the assessment map to depict the plaintiffs property as one lot. For the 1995 tax year, the assessor determined that the new assessed value of the larger, merged lot was $2,226,840. That figure represents the simple addition of the two 1985 assessed values of the separately purchased lots ($917,840 plus $1,309,000). The plaintiff objected to the assessed value and requested that the town board of tax review (board) reduce the assessment. The board denied the request and approved the assessed value. The plaintiff then appealed to the Superior Court pursuant to General Statutes § 12-117a. She claimed that the assessment was grossly excessive, disproportionate and unlawful. At trial, the plaintiff did not claim that the assessor assessed the one lot, which had been two lots, in excess of fair market value. She contended, instead, that the assessor did not use the same methodology that he employed for other single lots on the same street. As permitted by statute, the plaintiff amended her appeal to include the assessments for the 1996, 1997 and 1998 tax years.

The court referred the appeal to an attorney trial referee to review the board’s decision and to hold a hearing on the law and facts. The referee heard the appeal in November, 1998, and issued a report on April 14,1999. The referee found that the assessor had failed to employ the methodology used and applied to other like properties, and did not, therefore, apply uniform percentages as required by General Statutes § 12-64. The referee then determined that the appropriate method for valuing waterfront property in Westport resulted in a fair assessed value of $1,493,030 for the plaintiffs land. Accordingly, the report recommended a refund of taxes paid and attributable to the excess assessment on the property, together with interest at the statutory rate for the four tax years involved, and compensation of $2500 to the plaintiff for the testimony and reports of her expert witnesses. On May 21, 1999, the court, over the defendant’s objection to the report, rendered judgment in accordance with the referee’s report. This appeal followed. We will provide additional facts as they become relevant to the defendant’s claims.

I

We must first determine whether the rules of practice granted the defendant a hearing as of right on an objection to the referee’s report before the court could render judgment, for if the defendant was so entitled we must remand the case and forgo a discussion of the remaining issues. The defendant claims that Practice Book (1999) § 19-16 required the court to give it the opportunity to claim the case to the short calendar for a hearing on the objection to acceptance of the referee’s report. We disagree.

The defendant filed an objection to the adoption of the referee’s report on April 27, 1999, and amended that objection on April 28,1999. The plaintiff filed comments on the amended objection on May 5,1999. Neither party ever requested oral argument nor indicated any desire for oral argument on the papers filed with the court. The court overruled the defendant’s objection and rendered judgment on May 21,1999, in accordance with the referee’s report.

Practice Book (1999) § 19-16 provides in relevant part that “[i]f exceptions or objections have been seasonably filed, the case should be claimed for the short calendar' for hearing thereon . . . .” This court recently determined that a correct interpretation of Practice Book (1999) § 19-16 does not include a hearing as a matter of right. Paulus v. LaSala, 56 Conn. App. 139, 145-46, 742 A.2d 379 (1999), cert. denied, 252 Conn. 928, 746 A.2d 789 (2000). In arriving at that conclusion, we did not read Practice Book (1999) § 19-16 in isolation, but in conjunction with Practice Book (1999) § 11-18, which provides in relevant part: “Oral argument is at the discretion of the judicial authority except as to motions to dismiss, motions to strike, motions for summary judgment, and motions for judgment of foreclosure. For those motions, oral argument shall be a matter of right, provided (1) the motion has been marked ready for adjudication . . . and (2) the movant indicates at the bottom of the first page of the motion or on a reclaim slip that oral argument or testimony is desired . . . .” Therefore, we concluded that “even if [Practice Book (1999) § 19-16] grants . . . oral argument as of right, it is not automatic but must be claimed for argument as provided in [Practice Book (1999) § 11-18]. . . . Aside from the plain meaning of the words of those sections, which do not grant oral argument as of right . . . judicial economy and practicality require a common sense reading of both sections.” Paulus v. LaSala, supra, 146.

We find that Paulus is dispositive of the defendant’s claim. The defendant did not enjoy an automatic right to a hearing and it failed to indicate any desire for one. We conclude, therefore, that the court acted properly and turn to the remaining issues on appeal.

II

Before considering the merits of the parties’ arguments, we articulate the basic legal principles and standard of review applicable to the remaining issues on appeal. A trial court hears tax appeals pursuant to § 12-117a de novo and “must arrive at [its] own conclusions as to the value of [the taxpayer’s property] by weighing the opinion of the appraisers, the claims of the parties in light of all the circumstances in evidence bearing on value, and [its] own general knowledge of the elements going to establish value . . . .” (Internal quotation marks omitted.) Xerox Corp. v. Board of Tax Review, 240 Conn. 192, 204, 690 A.2d 389 (1997). We are bound by the trial court’s findings of facts unless those findings are clearly erroneous, but we invoke a plenary review of any legal conclusions. We must, therefore, decide whether the conclusions are legally and logically correct, and find support in the record. Mindful of those basic principles, we now consider each of the claims on appeal.

The defendant claims that the plaintiff could not prevail on her claim of disproportionate, grossly excessive, unlawful or unequal tax treatment without introducing evidence of fair market value at trial. The defendant argues that the plaintiffs failure to establish fair market value prevented the court from determining whether the assessor complied with the mandates of § 12-64. In support of that claim, the defendant asserts that the cases addressing discriminatory tax treatment arise out of differing, and therefore nonuniform, assessment percentages applied to fair market value, not out of varying assessment methodologies. The plaintiff did not offer evidence of either assessment percentages applied or fair market value. The defendant argues that the plaintiff cannot, therefore, seek judicial review of the assessment because there is no “authority to substantiate [her] position that there is some inalienable right to judicial review of an assessment where it can somehow be proven that the town has acted in an unfair or discriminatory way toward one of its taxpayers. . . . This argument is not supported ... by any precedent propounded by the plaintiff.”

The plaintiff maintains that she need not introduce evidence of fair market value when her claim focuses instead on the discriminatory approach in the assessment method. The plaintiff argues that the absence of a fair market value appraisal did not preclude the referee from concluding that the assessment method was discriminatory and resulted in a disproportionate tax. The plaintiff claims that the assessor should have based the assessment of her property on 1985 fair market values using the same methodology, formula and factors he used in 1985 for similarly situated one lot parcels of land. The plaintiff does not claim any impropriety in the 1985 fair market value. We agree with the plaintiff.

A

We first discuss the plaintiffs appeal under § 12-117a. As previously noted, an aggrieved taxpayer may appeal to the Superior Court. In a § 12-117a appeal, the court potentially performs two functions. Initially, the court determines whether the board’s action aggrieved the taxpayer. Sibley v. Middlefield, 143 Conn. 100, 105, 120 A.2d 77 (1956). A taxpayer satisfactorily demonstrates aggrievement where the board’s action will require the payment of an unjust and, therefore, illegal tax. Id. An affirmative finding of aggrievement is an absolute condition precedent to the second function, which involves the court’s broad discretionary power to grant appropriate relief. Id. In exercising its discretion, the court should correct the valuation. Konover v. West Hartford, 242 Conn. 727, 736, 699 A.2d 158 (1997).

The issue of aggrievement involves a two part analysis, which entails both factual determinations and a question of law. Whether a specific action that the assessor takes in his valuation has aggrieved a taxpayer is a question of law. See Nader v. Altermatt, 166 Conn. 43, 55, 347 A.2d 89 (1974); Sibley v. Middlefield, supra, 143 Conn. 105; Ives v. Goshen, 65 Conn. 456, 459, 32 A. 932 (1895). “Whether a property has been overvalued for tax assessment purposes is a question of fact for the trier.” Newbury Commons Ltd. Partnership v. Stamford, 226 Conn. 92, 103, 626 A.2d 1292 (1993). In other words, in the context of this appeal, we review de novo whether the assessor’s method, which continued to treat the plaintiff’s property as two separate parcels after she and her husband merged the lots at the request of the commission, constitutes aggrievement for purposes of § 12-117a.

In the present case, the referee found that the plaintiff had established aggrievement by showing that the assessor deviated from the method he had used in all other assessments for properties located on Beachside Avenue and for other waterfront properties. Our question becomes whether, as a matter of law, on the basis of facts found by the referee, the plaintiff established that the assessment, which treated her properties as individual lots rather than one merged lot, resulted in an improper tax and, therefore, aggrieved her. We conclude that she was so aggrieved.

Each party presented the testimony of one witness at the hearing before the referee. David P. Fugitt, a licensed, tenured general appraiser, testified for the plaintiff, and Kenneth C. Carvell, the defendant’s assessor at the time of the disputed assessments, testified for the defendant. The base assessment date involved in both experts’ testimony was October 1, 1985, the date of the last townwide revaluation as of the date of the trial.

We note initially that the referee is particularly cloaked with the power to make credibility determinations. “[T]he acceptance or rejection of an opinion of a qualified expert is a matter for the trier of fact unless the opinion is so unreasonable as to be unacceptable to a rational mind.” National Folding Box Co. v. New Haven, 146 Conn. 578, 586, 153 A.2d 420 (1959). Although the courts should accord an assessor’s testimony substantial deference, no judicial presumption exists as to the validity of that assessor’s conclusions. Stamford Apartments Co. v. Stamford, 203 Conn. 586, 589, 525 A.2d 1327 (1987).

Fugitt submitted two reports, one that analyzed the defendant’s method of assessing land on Beachside Avenue and one that analyzed the defendant’s method for assessing other waterfront property located in the town. Those reports and Fugitt’s testimony explained the assessor’s methodology. According to Fugitt, the methodology effectively involves a three step procedure: A primary site valuation, a residual acreage valuation and consideration of certain influence factors.

In 1985, for waterfront property in the town, the assessor assigned a value of $1.1 million to a property’s “primary site.” A primary site consists of a two acre building site with water frontage. The assessor then classified other acreage on the property, typically the acreage in excess of the two acres identified as the primary site, as “residual acreage.” Residual acreage was that land that the owner could not use as a building site and that had no potential for development. The assessor valued residual acreage at 10 percent of the value of the primary site, or $110,000 per acre. Finally, the methodology subjected certain property characteristics to an influence factor. Characteristics such as landscaping, flooding, restrictions, location, shape and size could, on the basis of those influence factors, increase or reduce the value of the property.

Fugitt’s reports indicated that the assessor, with some exception, employed that method for the relevant tax years. Fugitt attributes any exception to or deviation from that formula to the possibility of subdivision, irrespective of the owner’s intent to subdivide. Accordingly, because the plaintiff cannot now subdivide the subject property due to the large residence that straddles the boundary line and because she agreed to the commission’s requirement to merge the two lots, facts that neither side disputes, Fugitt determined that the assessment should not include any additional primary site value.

Carvell, on the other hand, offered a different explanation of the assessment methodology. Carvell insisted that when valuing property in Westport, the possibility of subdivision was not a factor. The relevant factor was the pricing of waterfront acreage. Carvell testified that he assigned the other properties on Beachside Avenue that contained two acres of waterfront and fewer than four acres overall only one primary site value of $1.1 million and that he valued the remaining acres as residual. Carvell testified further that he assessed properties containing more than four acres differently. Those properties received a $1.1 million value for any two acres of waterfront, a $300,000 value for any two acres of nonwaterfront and a $110,000 value for each additional acre as residual acreage.

Pursuant to that formula, Carvell testified that he treated 1.39 acres of the plaintiffs 5.39 acre lot as residual acreage and the other four acres as two primary waterfront sites. The plaintiffs property had two two acre waterfront areas, and he assigned each of those two acre areas a $1.1 million value. The remaining acreage, residual acreage, was valued at $110,000 per acre.

The referee found that the assessor utilized the methodology explained by Fugitt for property on Beachside Avenue, namely the methodology that considered the possibility of subdivision rather than waterfront acres. Furthermore, the referee’s reduction of the assessment impliedly recognizes that she credited Fugitt’s testimony as to the town’s method and credited his analysis of the appropriate valuation of the subject property rather than Carvell’s assessment scheme. As we previously discussed, that credibility determination must stand unless it is unreasonable. Hutensky v. Avon, 163 Conn. 433, 438, 311 A.2d 92 (1972).

“The claim that the property had been wrongfully or excessively assessed could have been appealed in one of two ways: (1) to the board of tax review [under section 12-111] and from there, within two months, to the Superior Court pursuant to [§] 12-111 ... or (2) by direct action to the court . . . pursuant to [General Statutes] § 12-119.” (Emphasis added; internal quotation marks omitted.) Farmington v. Dowling, 26 Conn. App. 545, 550, 602 A.2d 1047 (1992), appeal dismissed, 224 Conn. 592, 619 A.2d 852 (1993).

A distinction exists between an excessive assessment and a wrongful assessment. The plaintiff did not maintain at trial that the assessment was excessive. Indeed, she withdrew the counts relating to fair market value and requested permission to amend the other counts to add the claim of unequal treatment. At the trial’s outset, plaintiffs counsel noted that “we agree that our approach is essentially in regard to the unequal treatment.” The referee also recognized that approach and stated that “[t]he theory upon which the plaintiff is proceeding is based on unequal treatment.”

“ [V] aiuation of property in excess of fair market value is not the only ground upon which a taxpayer may be entitled to relief. . . Any circumstances indicating that a disproportionate share of the tax burden is being thrust upon a taxpayer would warrant judicial intervention.” (Citation omitted.) Chamber of Commerce of Greater Waterbury, Inc. v. Waterbury, 184 Conn. 333, 336, 439 A.2d 1047 (1981). We conclude that the assessor’s method resulted in unfair treatment and a wrongful assessment, and, therefore, aggrieved the plaintiff. Once the plaintiff established aggrievement, the court was entitled to exercise broad discretion to correct the assessment. We cannot conclude that the court abused its discretion in adopting the referee’s finding that the assessor had improperly failed to apply to the plaintiffs property the methodology used and applied in 1985 to other like properties on Beachside Avenue.

B

We now briefly address the defendant’s argument that the plaintiff needed to introduce evidence of fair market value to prevail. Had the plaintiff proceeded strictly under § 12-64, we would find the defendant’s argument more persuasive. In light of our discussion in part IIA of this opinion, however, because the board’s action aggrieved the plaintiff, she was able to proceed under § 12-117a. The defendant accurately notes that the present case is not the usual tax appeal. Appeals from assessments typically attack the assessor’s fair market value determination. In those cases, a taxpayer claiming aggrievement must establish the inaccuracy of the assessor’s fair market value figure and simultaneously establish the accuracy of her different figure. New Haven Water Co. v. Board of Tax Review, 166 Conn. 232, 234, 348 A.2d 641 (1974).

In the present case, however, the plaintiff has not argued that the assessor assessed the property in excess of its fair market value. The plaintiff attacks the method used by the assessor in calculating the current assessed value of the larger, merged lot, claiming a wrongful assessment due to the assessor’s unequal treatment of her lot. For that reason, we disagree with the defendant’s contention that fair market value was an integral element of the plaintiffs case.

Ill

The defendant also asseits that the plaintiff sought an interim revaluation during a nonrevaluation year, which the law forbids. We disagree that the plaintiffs action constitutes a prohibited interim assessment adjustment.

The defendant argues that the law limits interim revaluations in assessed value of real estate to specific extraordinary instances, none of which the facts of this case present. According to the defendant, the plaintiff seeks to reduce the land only assessment because the house that now straddles the boundary line has made subdivision impossible. The defendant maintains that no statutory authority exists to compel the tax assessor to conduct an interim revaluation on the basis of subdivision infeasibility, particularly when the plaintiff herself created the situation.

The plaintiff claims that she has neither requested nor demanded that the assessor conduct an interim revaluation of the subject property and does not claim that fair market value has either increased or decreased. The plaintiff argues, therefore, that the cases and statutes concerning interim revaluations do not apply to the facts of this case. She asserts, instead, that the law allowing an assessment challenge to correct an existing and wrongful valuation, rather than the law forbidding a revaluation because of changed market conditions, should apply. Moreover, the plaintiff does not claim that the assessment is manifestly excessive under § 12-119, but challenges, pursuant to § 12-117a, the assessor’s valuation on the basis of the method he used. See Pauker v. Roig, 232 Conn. 335, 338, 654 A.2d 1233 (1995). We agree with the plaintiff.

General Statutes § 12-64a compels an interim revaluation under the limited circumstance of damage to the property requiring either complete demolition or total reconstruction. The legislature has not provided any other statutory exception, and the Supreme Court has declined to recognize nonstatutory exceptions. DeSena v. Waterbury, 249 Conn. 63, 82, 731 A.2d 733 (1999). Prior to the DeSena decision, certain dictum in Ralston Purina Co. v. Board of TaX Review, 203 Conn. 425, 525 A.2d 91 (1987), had opened the door to the possibility that a taxpayer could compel an interim revaluation on the basis of special circumstances, such as “destruction or expansion of property, a substantial change in its use or zoning classification, or a decision by the taxpayer to go out of business . . . .” Id., 436. The defendant correctly notes, however, that our Supreme Court firmly shut the door on that argument and unequivocally declined the invitation to recognize the Ralston Purina Co. dictum as a judicial exception to the rule that only the limited circumstances provided for by statute compel assessors to conduct interim revaluations. DeSena v. Waterbury, supra, 87.

In DeSena, the plaintiff requested an interim revaluation because he had ceased operation of a nursing home on the property, the property’s value had substantially declined and the assessment was greatly excessive, disproportionate and unlawful. Id., 71. The plaintiff in DeSena argued that a change in the use of the property, specifically contemplated by the Ralston Purina Co. court, entitled him to an interim revaluation. Id., 73. The court rejected the argument and held that § 12-64a prescribed the unique circumstance that would require an interim revaluation. Id., 87.

Although the law prohibits a taxpayer from demanding that the assessor conduct an interim revaluation, the law allows a taxpayer to challenge an illegal assessment. Jupiter Realty Co. v. Board of Tax Review, 242 Conn. 363, 373, 698 A.2d 312 (1997). In Jupiter Realty Co., as part of the decennial revaluation, the assessor valued the plaintiffs property during 1991. The plaintiff did not appeal from that assessment. In 1992, the assessor determined the assessed value of the plaintiffs property on the basis of the 1991 decennial revaluation. The plaintiff challenged that assessment in 1992, which the board refused to reduce. Our Supreme Court reversed the board’s decision and held that boards of tax review were not insulated from appeals from overvaluation during interim years. Id., 372.

The Jupiter Realty Co. court drew an “identifiable and justifiable” distinction between “requesting a revaluation because the original revaluation was in error and requesting a revaluation because circumstances subsequent to the initial revaluation have effected a change in the present true and actual value of the property . . . .” Id., 373. The law forbids the latter because it essentially challenges the “legislatively chosen ten year revaluation time period.” Id. A change in today’s market conditions, resulting in a different “present” true and actual value of the property, is an insufficient basis to compel revaluation. The former, however, constitutes “a challenge to the decennial revaluation in a subsequent year [seeking] only to correct an already existing revaluation. It is a challenge to the manner of taxation; [Uniroyal, Inc. v. Board of Tax Review, 182 Conn. 619, 629, 438 A.2d 782 (1981)] .... We find no support for denying taxpayers the right to have their decennial revaluation reflect the property’s true value at the time of the decennial revaluation in our case law concerning interim valuations. While the ultimate relief of interim revaluations and challenges to decennial revaluations might be similar—a lowering of present and future assessment values—the grounds for relief are quite distinct.” (Citation omitted.) Jupiter Realty Co. v. Board of Tax Review, supra, 242 Conn. 373-74.

In the present case, the plaintiff does not claim any intervening change in fair market value since the 1985 valuation year. Although the merger of two lots into one lot is a change, it does not constitute a change in value as discussed in DeSena. Here, the assessor used 1985 data to establish the plaintiffs assessment, but did not use the same 1985 methodology he used to assess other similar property. Once the plaintiff merged the two lots into one lot, they ceased to have any independent legal existence. We hold that the plaintiff is entitled to the assessment she would have had in 1985 if the property had then been only one lot and the assessor had used the same method he used for other assessments of similar property, and that the referee’s determination of an assessment figure was not improper.

IV

The defendant’s final claim asserts that the court improperly awarded appraisal fees in the amount of $2500. We agree and set aside that part of the court’s decision to award fees.

In the present case, the referee’s report “recommends that the plaintiff receive compensation for the testimony of [Fugitt] and for preparation of [Fugitt’s] reports totaling $2500.” The referee arrived at that figure on the basis of two exhibits that the plaintiff introduced at trial. One exhibit, dated March 31, 1998, was Fugitt’s bill in the amount of $1100 “for professional services, including preparation of report and court appearance to date.” The other exhibit, dated August 12, 1998, was Fugitt’s bill in the amount of $1400 for “research and producing report (including meetings to date).”

The defendant accurately points us to M. DeMatteo Construction Co. v. New London, 236 Conn. 710, 674 A.2d 845 (1996), which held that appraisal fees constitute a nonreimbursable cost. The law expects parties to bear their own litigation expenses, except where the legislature has dictated otherwise by way of statute. Verrastro v. Sivertsen, 188 Conn. 213, 217, 448 A.2d 1344 (1982). “Costs are the creature of statute . . . and unless the statute clearly provides for them courts cannot tax them.” (Internal quotation marks omitted.) Id. Our Supreme Court determined that no existing statute authorized appraisal fee costs. M. DeMatteo Construction Co. v. New London, supra, 716.

The plaintiff concedes that the court improperly awarded fees for the report, but contends that she is entitled to $1000 for Fugitt’s testimony. The plaintiff argues in her brief that “ [i]t is submitted that the sum of $1000 be allowed as a cost order for Mr. Fugitt’s testimony, based on his statement that his charges, in addition to those set forth on exhibits C and D, which totaled $2500, amounted to $1000.” We disagree that Fugitt’s statement at trial indicated that his fee for appearing in court was $1000.

We recognize that General Statutes § 52-260 (f) permits costs for a real estate appraiser’s testimony. The record in the present case does not contain, however, any indication as to Fugitt’s costs for his court appearance. The $1400 bill for preparation of the report constitutes a litigation expense that M. DeMatteo Construction Co. requires that the plaintiff bear. Fugitt prepared another bill for $1100 for his services “to date” seven months before he appeared at the November, 1998 trial. That bill also represents a nonreimbursable fee because his November, 1998 court appearance cannot be a service “to date” in March, 1998. The plaintiff refers us to the following portion of the transcript as support for her argument that she is entitled to $1000 for Fugitt’s testimony:

“Q. And Mr. Fugitt, those bills [dated March 31,1998, and August 12, 1998] do not include subsequent services. Have you estimated what additional charges you’re going to make for the work you’ve done since then, including your testimony today?

“A. Yes, it will be approximately $1000.” (Emphasis added).

A careful reading reveals that Fugitt did not state that his fee for appearing that day at trial would amount to $1000. The reference to $1000 included subsequent work and his testimony. We have no way of ascertaining the amount Fugitt charged only for his testimony. Because the statute explicitly limits reimbursement to testimony fees and there was no evidence at trial to establish that amount, we set aside that portion of the court’s judgment awarding expert witness fees.

The judgment is reversed only as to the award of appraisal fees and the case is remanded with direction to vacate that award. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       The other defendant in this action is the board of ta.x review of the town of Westport. Only the town of Westport has appealed from the judgment of the trial court. We therefore refer in this opinion to the town of Westport as the defendant.

       Martin S. Davis, the husband of the plaintiff, Luella W. Davis, was originally a party to this action. He quitclaimed to her, however, all of his interest in the jointly held real property at issue. Luella W. Davis is the sole owner of the property and, consequently, the sole plaintiff for purposes of the present action. We therefore refer in this opinion to her as the plaintiff.

       Evidence at trial established that the Davises purchased the land and existing buildings for a total of $8.6 million. That figure, far in excess of the assessed value advanced by either the plaintiff or the defendant, is not relevant for purposes of resolving this appeal. As previously noted, the only figures relevant to this tax appeal are those relating to 1985 assessments. The pinchase price of the property has no bearing on a challenge to a 1985 valuation. Additionally, both the land and the plaintiffs new home were to be reassessed in the next revaluation year.

       General Statutes § 12-117a provides in relevant part: “Any person . . . claiming to be aggrieved by the action of the board of tax review . . . may, within two months from the date of the mailing of notice of such action, make application, in the nature of an appeal therefrom, with respect to the assessment list for the assessment year commencing October 1, 1989, October 1, 1990, October 1, 1991, October 1,1992, October 1, 1993, October 1, 1994, or October 1, 1995, and with respect to the assessment list for assessment years thereafter, to the superior court for the judicial district in which such town or city is situated . . .

       General Statutes § 12-117a provides in relevant part: “If, during the pendency of such appeal, a new assessment year begins, the applicant may amend his application as to any matter therein, including an appeal for such new year, which is affected by the inception of such new year . . .

       General Statutes § 12-64 (a) provides in relevant part: “All the following-mentioned property, not exempted, shall be set in the list of the town where it is situated and, except as otherwise provided by law, shall be liable to taxation at a uniform percentage of its present true and actual valuation, not exceeding one hundred per cent of such valuation, to be determined by the assessors . . .

       Practice Book (1999) § 19-16 was amended effective January 1, 2000. Practice Book (1999) § 19-16 was in effect at the time the defendant objected to the acceptance of the report and at the time we decided Paulus. Paulus, therefore, is applicable to the present case.

       Practice Book (1999) § 11-18 also was amended effective January 1,2000. It now provides in relevant part: “Oral argument is at the discretion of the judicial authority except as to . . . motions for judgment on the report of an attorney trial referee and/or hearing on any objections thereto. . .

       At the time the defendant filed its appeal, we had not yet decided Paulus. The issue of whether the defendant was entitled to a hearing as of right was, therefore, unsettled.

       The plaintiff submitted two reports into evidence, neither of which concerned the fair market value of the plaintiffs lot. The reports showed other sales of comparable properties, but only to illustrate the methodology the assessor employed.

       General Statutes § 12-117a confers upon the court “the power to grant such relief as to justice and equity appertains, upon such terms and in such manner and form as appear equitable . . . .”

       We note that the referee’s finding that the assessor’s method violated the mandates of General Statutes § 12-64 did not specifically address aggrievement under General Statutes § 12-117a. The referee stated in her report that “[b]ecause the assessor failed to employ the methodology used and applied to other like properties, the assessor as a matter of fact failed to apply uniform percentages to the present true and actual valuation of properties of the grand list in violation of § 12-64 . . . .” The referee’s factual findings support, however, a finding of aggrievement as a matter of law under § 12-117a. We can sustain a conclusion on facts different from those relied on by the trial court. See State v. Mierez, 24 Conn. App. 543, 547, 590 A.2d 469, cert. denied, 219 Conn. 910, 911, 593 A.2d 136 (1991). Accordingly, “ [w] e need not be concerned with the validity of the court’s theory in support of [the] judgment; since the judgment is correct it must stand.” Groton v. Commission on Human Rights & Opportunities, 169 Conn. 89, 101, 362 A.2d 1359 (1975).

       In the context of the varying formulae, this opinion continually refers to land areas in terms of two acres because the minimum area for a building lot on Beachside Avenue is two acres.

       Fugitt’s report of the town’s method of assessing land on Beachside Avenue indicated that the assessor had assigned certain lots more than one $1.1 million value. Those lots were 66, 76, 86 and 106 Beachside Avenue.

       See footnote 14.

       Fugitt examined the assessments for properties that included more than one $1.1 million value to explain his subdivision theory. As discussed in footnote 14, those properties were located at 66, 76, 86 and 106 Beachside Avenue. Fugitt explained the assessments in terms of the owner’s ability to subdivide the lot. For example, 66 Beachside Avenue contains 7.13 acres. According to Fugitt, given the placement of the dwelling, the owner could subdivide that lot into two two acre waterfront parcels and one two acre nonwateifront lot. Accordingly, he proffered, for 66 Beachside Avenue the assessor valued the two acre parcels on Long Island Sound at $1.1 million each and the other two acre lot away from Long Island Sound at $300,000. The assessor considered any remaining acreage, Fugitt explained, as residual acreage. Fugitt testified similarly in explaining the assessment value for 76, 86 and 106 Beachside Avenue, except (hat none of those parcels contained a second two acre waterfront area.

       The defendant claims that the referee’s conclusion that the plaintiffs property was subject to disproportionate taxation cannot stand, as it was based on the referee’s erroneous finding that the assessor used the same methodology for all waterfront properties on Beachside Avenue. The referee found Fugitt’s testimony credible as to the assessor’s methodology for Beachside Avenue property and as to the deviation from that formula only where there was a possibility of subdivision. Because the plaintiff can no longer subdivide her property, the referee concluded that the assessor should have used (he same basic formula to assess the plaintiffs property that he had used to assess other properties on Beachside Avenue that could not be subdivided. In light of our determination that the referee’s decision to credit Fugitt’s testimony regarding the methodology was not unreasonable, we conclude that the referee’s finding that the assessor used the same methodology to assess all properties on Beachside Avenue, except for those properties that could be subdivided, was not improper.

       Carvell examined the assessments of those properties that exceeded four acres to explain his waterfront acreage theory. For example, 66 Beachside Avenue contains 7.13 total acres. It has four waterfront acres, two nonwaterfront acres and 1.13 residual acres. He assigned the four waterfront acres two $1.1 million values (one for each two acre area), the two nonwaterfront acres a $300,000 value and the 1.13 acres a value of $110,000 per acre. He explained the other properties in excess of four acres, namely, 76, 86, 106 and 60 Beachside Avenue (the plaintiffs property), similarly.

       An examination of Carvell’s testimony as a whole casts doubt on whether Carvell actually used the formula in reassessing the plaintiffs merged lot. At one point, Carvell stated that “the assessment for land on number 60 and the assessment for land on number 62, were added together.” He remarked later that “[g]iven the excess excessive frontage, [a separate special valuation of the plaintiffs property] might have been contemplated, but the revaluation was coming—supposedly coming for ’95—so no new schedule was concocted to handle this particular property." As the referee stated in her report, it would appear that Carvell “backed into” that methodology when the plaintiff questioned the assessment.

       General Statutes § 12-64a provides: “(a) Whenever a building is so damaged as to require total reconstruction before it may be used for any purpose related to its use prior to such damage and following which, the owner provides for complete demolition of such building with the material from demolition being removed from the parcel of real property on which the building was situated or used as fill on such parcel for purposes of grading, such parcel shall be assessed for purposes of property tax as of the date such demolition, removal and grading are completed, to the satisfaction of the building inspector in the municipality, and such assessment shall reflect a determination of the assessed value of such parcel, exclusive of the value of the building so damaged, demolished and removed. The adjusted assessment shall be applicable with respect to such parcel from the date demolition, removal and grading are completed, as determined by said building inspector, until the first day of October next succeeding and the amount of property tax payable with respect to such parcel for the assessment year in which demolition, removal and grading are completed shall be adjusted accordingly in such manner as determined by the assessor.
      “(b) Notwithstanding the provisions of subsection (a) of this section, in the case of a building that sustains fire or weather-related damage that requires the building to be totally reconstructed before it may be used for any purpose related to its use prior to the damage, the assessment reduction shall be calculated from the date of such fire or weather event if the owner, within one hundred twenty days of the fire or weather event, provides for complete demolition of such building with the material from demolition being removed from the parcel of real property on which the building was situated and the parcel graded to the satisfaction of the building inspector in the municipality. If the fire or weather event occurs not more than one hundred twenty days before the next assessment date and the owner provides for such complete demolition, removal and grading to the satisfaction of the building inspector after the next assessment date and not more than one hundred twenty days after the fire or weather event, the assessment for the damaged building shall be removed for such next assessment date.”

       Revaluation is now conducted every twelve years. General Statutes § 12-62 (a) (3).

       Although we recognize that Jupiter Realty Co. is factually dissimilar to the present case in that the taxpayer in Jupiter Realty Co. questioned the original decennial revaluation whereas in this case the taxpayer questions the method the assessor used, a taxpayer may be entitled to relief on grounds other than excess fair market value. See Chamber of Commerce of Greater Waterbury, Inc. v. Waterbury, supra, 184 Conn. 336.

       General Statutes § 52-260 (f) provides in relevant part: “When any . . . real estate appraiser is summoned to give expert testimony in any action or proceeding, the court shall determine a reasonable fee to be paid to the . . . real estate appraiser and taxed as part of the costs in lieu of all other witness fees payable to the . . . real estate appraiser.”


source: Caselaw Access Project

author: SPEAR, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. JOSE LUGO
    (AC 19698)
    Landau, Spear and Mihalakos, Js.

      Argued November 27, 2000
    officially released February 20, 2001

      Donald D. Dakevs, special public defender, for the appellant (defendant).

      James M. Ralls, assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and Margaret Kelley, assistant state’s attorney, for the appellee (state).
   Opinion

SPEAR, J.

The defendant, Jose Lugo, appeals from the judgment of conviction rendered following his guilty plea under the Alford doctrine to the crimes of possession of narcotics with intent to sell in violation of General Statutes § 2 la-277 (a), possession of narcotics with intent to sell within 1500 feet of a public housing project in violation of General Statues § 21a-278a (b) and failure to appear in the first degree in violation of General Statutes § 53a-172 (a) (l). The defendant claims that the trial court improperly accepted his guilty plea because the court failed to inform him of (1) the maximum sentence that could be imposed for each individual charge and (2) the nature of the charges to which he pleaded guilty. He claims that these omissions violated Practice Book § 39-19 and his constitutional right to due process because he did not knowingly and voluntarily plead guilty. We disagree and affirm the judgment of the trial court.

The following facts and procedural history are relevant to the resolution of this appeal. On October 1,1997, in a public housing project, a police officer observed the defendant participating in two transactions that appeared to involve the sale of narcotics. The defendant walked away as police officers approached, and, as he retreated from them, he dropped a white, cylindrical container. Soon thereafter, the police officers arrested the defendant and found $110 in his wallet. A police officer also retrieved the white, cylindrical container, which contained forty-two folds of heroin.

On the second day of trial, defense counsel informed the court that the defendant wanted to plead guilty under the Alford doctrine, rather than to proceed with the trial. When counsel informed the court that the defendant wanted to plead guilty, counsel emphasized that the defendant was aware of the fact that there was no sentencing arrangement or recommendation in exchange for the plea.

To determine whether the defendant’s plea was voluntary, the court asked the defendant several questions during the plea canvass. In summary, the court asked the defendant if his attorney had reviewed with him the elements of the crimes with which he was charged, as well as the minimum and maximum penalty the court could impose in connection with the charges. The defendant replied, “Yes, Your Honor.” Later in the canvass, the court also addressed defense counsel and inquired whether he was satisfied that the defendant understood the explanation of the elements of the crimes and the penalties. Defense counsel replied, “Yes, Your Honor.”

The court specifically asked the defendant if he understood that he faced a maximum sentence of twenty-three years, and the defendant replied, “Yes, Your Honor.” Then, the court asked the defendant if he understood that there was a three year mandatory sentence for the charge of possession of narcotics with intent to sell within 1500 feet of apublic housing project, a charge that would run consecutively to any sentence imposed. At first, the defendant replied, “Um—no.” Counsel interrupted at that point and took the defendant aside. After their discussion, defense counsel stated, “He understands, Your Honor.” The court again addressed the defendant, emphasizing that a three year consecutive sentence would be imposed and that the sentence would not be suspended in any way, but would be in addition to and consecutive to any term of imprisonment that the court imposed in connection with the guilty plea. In response to the court’s query whether he understood, the defendant stated, “Yes, Your Honor.”

The court accepted the defendant’s plea. Thereafter, the court imposed a total effective sentence of eighteen years for the three counts. This appeal followed.

Because he did not attempt to withdraw his plea prior to sentencing, the defendant concedes that he did not preserve his claims for appellate review. Accordingly, he requests that we review his claims under the doctrine enunciated in State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). In Golding, our Supreme Court held that “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) Id. “The first two questions relate to whether a defendant’s claim is reviewable, and the last two relate to the substance of the actual review.” (Internal quotation marks omitted.) State v. Williams, 60 Conn. App. 575, 578-79, 760 A.2d 948, cert. denied, 255 Conn. 922, 763 A.2d 1043 (2000).

Here, the record is adequate for review, and the defendant’s claims are of constitutional magnitude. Nevertheless, the defendant’s claims must fail because no constitutional violations exist that deprived him of a fair trial.

To ensure that guilty pleas are entered knowingly, voluntarily and intelligently, Practice Book § 39-19 requires that prior to accepting a guilty plea the court shall inform the defendant of “[t]he nature of the charge to which the plea is offered” and “[t]he maximum possible sentence on the charge, including, if there are several charges, the maximum sentence possible from consecutive sentences and including, when applicable, the fact that a different or additional punishment may be authorized by reason of a previous conviction . . . .”

“It is axiomatic that unless a plea of guilty is made knowingly and voluntarily, it has been obtained in violation of due process and is therefore voidable. ... A plea of guilty cannot be truly voluntary unless the defendant possesses an understanding of the law in relation to the facts. . . . These principles are in accord with Practice Book § 711 (1) etseq. [now § 39-19].” (Citations omitted; internal quotation marks omitted.) State v. Wideman, 38 Conn. App. 581, 585, 663 A.2d 409, cert. denied, 235 Conn. 907, 665 A.2d 906 (1995). We are bound by our Supreme Court’s decision in State v. Badgett, 200 Conn. 412, 418, 512 A.2d 160, cert. denied, 479 U.S. 940, 107 S. Ct. 423, 93 L. Ed. 2d 373 (1986), in which the court held that “[t]o the extent that the defendant’s claim implicates the failure of the trial court to apprise him of the constitutionally mandated requirements for a valid plea ... his claim is properly reviewable despite the absence of a timely motion to withdraw the plea. . . . While the federal constitution requires that the record of the plea canvass indicate the voluntariness of any waiver of . . . three core constitutional rights [enunciated in Boykin v. Alabama, 395 U.S. 238, 243, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969)] ... it does not require that the trial court go beyond these constitutional minima. ... A defendant can voluntarily and understandingly waive these rights without literal compliance with the prophylactic safeguards of Practice Book [§§ 39-19 and 39-20]. Therefore . . . precise compliance with the provisions [of the Practice Book] is not constitutionally required. [The court’s analysis, therefore, should] focus on whether the federal constitutional principles . . . were satisfied rather than on meticulous compliance with the provisions of the Practice Book.” (Emphasis in original; internal quotation marks omitted.) State v. Williams, supra, 60 Conn. App. 579-80; see also State v. Domian, 235 Conn. 679, 686-87, 668 A.2d 1333 (1996).

To prevail, the defendant must establish that the court failed to obtain a proper waiver of at least one of the three core constitutional rights identified in Boykin, thereby depriving him of due process. See State v. Williams, supra, 60 Conn. App. 581. “[T]o discern whether the defendant’s claims are sufficient to satisfy the third prong of the Golding test, we must determine whether the defendant was aware of actual sentencing possibilities, and, if not, whether accurate information would have made any difference in his decision to enter a [guilty] plea.” (Internal quotation marks omitted.) State v. Peterson, 51 Conn. App. 645, 656-57, 725 A.2d 333, cert. denied, 248 Conn. 905, 731 A.2d 310 (1999); see also State v. Domian, supra, 235 Conn. 688.

I

The defendant first claims that his guilty plea was not entered knowingly and voluntarily because the court failed to inform him of the maximum sentence for each individual charge in violation of his constitutional right to due process. We do not agree.

The defendant failed to cite any authority to support this assertion, and we are not aware of any. The court was not required to apprise him of more than the constitutional minima established in Boykin and Badgett. State v. Williams, supra, 60 Conn. App. 579-80; see also State v. Domian, supra, 235 Conn. 686-87. The court satisfied this requirement when it informed the defendant of the three core constitutional rights, namely, his rights to be free of compulsory self-incrimination, to a jury trial and to confront his accusers.

Even if this court were to assume, arguendo, that the defendant had a constitutional right to know the maximum sentence for each individual charge, nothing in the record shows that such knowledge would have affected his decision to plead guilty. See State v. Peterson, supra, 51 Conn. App. 656-57. The colloquy between the court and the defendant reveals that the court informed the defendant that there was a twenty-three year maximum sentence for his charges, and the defendant stated that he understood. The colloquy sufficiently demonstrates that the defendant understood the law and the effect on his rights of pleading guilty. Accordingly, we conclude that the defendant made his guilty plea knowingly and voluntarily, and that the court’s acceptance of his plea did not violate his constitutional right to due process.

II

The defendant’s second claim is that he did not enter his guilty plea knowingly and voluntarily because the court failed to inform him of the nature of the charges to which he pleaded guilty in violation of Practice Book § 39-19 and his due process rights. This claim is without merit.

“The United States Supreme Court has stated that where a trial court does not inform a defendant during a plea proceeding about the elements of the crime charged, ‘even without such an express representation, it may be appropriate to presume that in most cases defense counsel routinely explain the nature of the offense in sufficient detail to give the accused notice of what he is being asked to admit.’ ” State v. Williams, supra, 60 Conn. App. 581-82, quoting Henderson v. Morgan, 426 U.S. 637, 647, 96 S. Ct. 2253, 49 L. Ed. 2d 108 (1976). Here, the court did not inform the defendant of the elements of the crimes charged. We may presume, however, that defense counsel explained the elements to the defendant prior to advising him to plead guilty. We conclude that the defendant’s second claim fails to satisfy the third prong of Golding because the defendant did not overcome the presumption that he understood the nature of the offense. The relevant colloquy reveals that the court inquired of the defendant and defense counsel as to whether the defendant understood the elements of the crime, and each replied affirmatively.

The defendant argues that he did not understand the mandatory, minimum sentence for the conviction of possession of narcotics with intent to sell within 1500 feet of a housing project, and, therefore, the court could rely on neither his representation nor defense counsel’s representation that he fully understood the elements of the charges. We are unpersuaded.

After the court allowed counsel to explain the mandatory, minimum sentence to the defendant and after counsel stated that the defendant understood, the court addressed the defendant. The court reiterated and emphasized to the defendant that there was a mandatory, minimum sentence. The defendant stated that he understood. Accordingly, the defendant failed to establish that a constitutional violation clearly existed and deprived him of a fair trial.

The judgment is affirmed.

In this opinion the other judges concurred.

         North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970). “A defendant pleading under the Alford doctrine . . . acknowledges that the state has evidence sufficient to obtain a conviction and therefore chooses to plead guilty in order to avoid the imposition of a possibly more serious punishment after trial.” (Internal quotation marks omitted.) State v. Bowden, 53 Conn. App. 243, 245 n.1, 729 A.2d 795 (1999).

       General Statutes § 21a-277 (a) provides in relevant part: “Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any controlled substance which is a hallucinogenic substance other than marijuana, or a narcotic substance, except as authorized in this chapter, for a first offense, shall be imprisoned not more than fifteen years and may be fined not more than fifty thousand dollars or be both fined and imprisoned . . . .”

       General Statutes § 21a-278a (b) provides in relevant part: “Any person who violates section 21a-277 or 21a-278 by manufacturing, distributing, selling, prescribing, dispensing, compounding, transporting with the intent to sell or dispense, possessing with the intent to sell or dispense, offering, giving or administering to another person any controlled substance in or on, or within one thousand five hundred feet of, the real property comprising ... a public housing project . . . shall be imprisoned for a term of three years, which shall not be suspended and shall be in addition and consecutive to any term of imprisonment imposed for violation of section 21a-277 or 21a-278. To constitute a violation of this subsection, an act of transporting or possessing a controlled substance shall be with intent to sell or dispense in or on, or within one thousand five hundred feet of, the real property comprising ... a public housing project .... For the purposes of this subsection, ‘public housing project’ means dwelling accommodations operated as a state or federally subsidized multifamily housing project by a housing authority, nonprofit corporation or municipal developer, as defined in section 8-39, pursuant to chapter 128 or by the Connecticut Housing Authority pursuant to chapter 129.”

       General Statutes § 53a-172 (a) provides in relevant part: “A person is guilty of failure to appear in the first degree when (1) while charged with the commission of a felony and while out on bail or released under other procedure of law, he wilfully fails to appear when legally called according to the terms of his bail bond or promise to appear

       Practice Book § 39-19 provides: “The judicial authority shall not accept the plea without first addressing the defendant personally and determining that he or she fully understands: (1) The nature of the charge to which the plea is offered; (2) The mandatory minimum sentence, if any; (3) The fact that the statute for the particular offense does not permit the sentence to be suspended; (4) The maximum possible sentence on the charge, including, if there are several charges, the maximum sentence possible from consecutive sentences and including, when applicable, the fact that a different or additional punishment may be authorized by reason of a previous conviction; and (5) The fact that he or she has the right to plead not guilty or to persist in that plea if it has already been made, and the fact that he or she has the right to be tried by a jury or a judge and that at that trial the defendant has the right to the assistance of counsel, the right to confront and cross-examine witnesses against him or her, and the right not to be compelled to incriminate himself or herself.”

       The following relevant colloquy took place between the court, and the defendant:
      “[The Court]: And has your attorney reviewed with you the elements of the crimes you were charged with as well as the minimum and maximum penalty the court can impose in connection with the charges against you?
      “[The Defendant]: Yes, Your Honor.
      “[The Court]: And, do you understand that there is a maximum exposure of twenty-three years?
      “[The Defendant]: Yes, Your Honor.
      “[The Court]: And do you understand that with respect to your plea to possession of narcotics with intent to sell within one thousand five hundred feet of a public housing project that the conviction of that is three years which is mandatory which shall run consecutive to any sentence the court imposes with respect to your plea in connection with possession of narcotics with intent to sell? Do you understand that?
      “[The Defendant]: Um—no.
      “[Defense Counsel]: Your Honor, if I may.
      (Aside between defense counsel and the defendant.)
      “[Defense Counsel]: He understands, Your Honor.
      “[The Court]: Do you understand, sir, that three years consecutive will be imposed and that shall not be suspended in any way and it shall be in addition to and consecutive to any term of imprisonment the court imposes in connection with your guilty plea with respect to the charge of possession of narcotics with intent to sell? Are you clear about that?
      “[The Defendant]: Yes, Your Honor.
      “ [The Court]: And, counselor, are you satisfied that your client understands the explanation of the elements of the crimes he is charged with as well as the penalties?
      “[Defense Counsel]: Yes, Your Honor.”

       The court sentenced the defendant to a term of twelve years on the count of possession of narcotics with intent to sell, three years mandatory on the count of possession of narcotics with intent to sell within 1500 feet of a public housing project and three years on the count of failure to appear in the first degree. The court further ordered that counts two and three run consecutively to count one and to each other for a total effective sentence of eighteen years.

       See footnote 5.

       Practice Book § 39-20 provides in relevant part: “The judicial authority shall not accept a plea of guilty . . . without first determining, by addressing the defendant personally in open court, that the plea is voluntary and is not the result of force or threats or of promises apart from a plea agreement.

       See footnote 6.

       See footnote 6.

       See footnote 6.

       See footnote 6.


author: LAVERY, C. J.

text:
    STATE OF CONNECTICUT v. FREDDY RAMIREZ
    (AC 19107)
    Lavery, C. J., and Landau and Schaller, Js.

      Argued October 23, 2000
    officially released February 20, 2001

      Deborah G. Stevenson, special public defender, for the appellant (defendant).

      Ronald G. Weller, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and David P. Gold, former assistant state’s attorney, for the appellee (state).
   Opinion

LAVERY, C. J.

The defendant, Freddy Ramirez, appeals from the judgment of conviction, rendered after a jury trial, of one count of assault in the first degree in violation of General Statutes § 53a-59 (a) (l), one count of assault of a peace officer in violation of General Statutes § 53a-167c (a) (l) and one count of assault in the second degree in violation of General Statutes §§ 53a-8 and 53a-60 (a) (2). The court sentenced the defendant to ten years imprisonment, suspended after seven years, and three years probation. The defendant claims that the court improperly (1) denied his motion for a judgment of acquittal, (2) marshaled the evidence and (3) gave a prejudicial instruction on whether the victim was reasonably identifiable as a police officer. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On January 19, 1997, the victim, Jay Falcioni, an off-duty police officer, was assaulted in the men’s room at Toad’s Place, a nightclub in New Haven. At approximately 2 a.m., Falcioni walked into the men’s room with his friend, Ronald Slowik, and witnessed an altercation between three Hispanic males and a white male. The defendant was one of the participants in the altercation. Falcioni stepped between the men and told them to break up the fight. The defendant swore at Falcioni and effectively told him to stay out of it. Falcioni kept his hands up and remained standing between the men involved in the altercation. The defendant then punched Falcioni in the throat.

At that point, Falcioni addressed the defendant directly and orally identified himself as a police officer. Neither Falcioni nor the other witness could remember the precise words that he used. Nevertheless, the defendant and the two other men backed away from the victim. The situation appeared to have been settled, and Falcioni turned his back to use a urinal. When Falcioni turned, the defendant struck him in the back of the head, and Falcioni fell to the floor. The defendant then repeatedly kicked Falcioni in the face. Falcioni did not see his assailant leave. An ambulance took Falci-oni to a hospital, and his injuries included head lacerations, a chipped tooth, a fractured eye socket and two fractures to his cheekbone. The subsequent investigation by the New Haven police department identified the defendant as the assailant. On the basis of that investigation, the police arrested the defendant.

I

The defendant first claims that the court improperly denied his motion for a judgment of acquittal at the close of the state’s case-in-chief as to the sufficiency of the evidence on the charge of assault of a peace officer. In particular, the defendant argues that the state offered insufficient evidence that Falcioni reasonably identified himself as a police officer before the assault occurred and that he was acting within the scope of his duty as a police officer at the time of the assault. We are persuaded that the evidence was legally sufficient to support the jury’s verdict and, therefore, we reject the defendant’s claim.

“In reviewing a sufficiency of the evidence claim, we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Henry, 253 Conn. 354, 366, 752 A.2d 40 (2000).

A person is guilty of the crime of assault of a peace officer when “with intent to prevent a reasonably identifiable peace officer . . . from performing his . . . duties, and while such peace officer ... is acting in the performance of his . . . duties ... (1) [he] causes physical injury to such peace officer . . . .” General Statutes § 53a-167c (a) (1). Our Supreme Court has held that, under § 53a-167c (a) (1), the state must prove that the victim of the assault is a “reasonably identifiable peace officer.” (Internal quotation marks omitted.) State v. Woolcock, 201 Conn. 605, 630, 518 A.2d 1377 (1986). Moreover, “[i]t is fundamental that guilt in a criminal case must be proved beyond a reasonable doubt on each essential element of the crime charged.” Id.

Here, it is uncontested that Falcioni was not wearing a uniform or displaying a badge when he was assaulted. He was off duty and socializing with his friends at a nightclub. In addition, there was no evidence that the defendant had ever seen Falcioni wearing a police uniform or displaying a badge. There was, however, evidence that Falcioni orally identified himself as a police officer. Although he could not remember his exact words, Falcioni testified that he identified himself to the defendant as a police officer. In addition, Slowik, who was “a step” away from the incident, heard Falcioni tell the defendant that he “was a police officer and to leave before there was any trouble.” Moreover, Slowik also testified that after Falcioni said that he was a police officer, the defendant said that “everything was cool,” and the situation seemed to be under control.

Against that background, the defendant asserts that the evidence was insufficient to find him guilty beyond a reasonable doubt because the state failed to prove beyond a reasonable doubt that Falcioni was a reasonably identifiable police officer. We disagree. A reasonable jury could have determined from the evidence presented and the inferences reasonably drawn therefrom that the defendant was guilty beyond a reasonable doubt of assault of a peace officer.

The defendant argues that the “reasonably identifiable” element of the statute requires the application of a subjective standard. The defendant maintains that the court used a test that is both subjective and objective based on the defendant’s perspective.

First, it is well established that the statute “intends that the conduct which it prohibits be judged from the vantage point of the criminal actor. In other words, was the person the actor is charged with assaulting ‘reasonably identifiable’ as a peace officer to the actor? The standard is . . . objective but it is also subjective. Not to predicate criminal liability on the ‘reasonably identifiable’ element on the knowledge of the actor defies not only common sense but also frustrates the statutory purpose of proscribing assaults on ‘reasonably identifiable’ peace officers. The statute is intended to protect peace officers in the performance of their duty. It not only protects peace officers, who to the eye and ear of the person involved present themselves with the garb and indicia of their status as peace officers, but also peace officers whom the actor either knows in fact or should reasonably know to be peace officers. It would be a bizarre conclusion, thwarting the legislative intent, to say that an assault upon a peace officer whom the actor actually knew was a peace officer was not an assault on a ‘reasonably identifiable’ peace officer simply because the officer did not physically appear and conduct himself as a police officer.” Id., 631. The evidence presented that the defendant had actual knowledge that Falcioni was a police officer would satisfy the “reasonably identifiable” element if the jury credited that evidence.

Furthermore, in the present case, although Falcioni was not in uniform and did not display a badge, he was, nevertheless, performing his statutory obligation as a police officer. “[A] police officer has the duty to enforce the laws and to preserve the peace. . . . Although from time to time a police officer may have a duty to make an arrest, his duties are not coextensive with his power to arrest. . . . The test is whether the [police officer] is acting within that compass or is engaging in a personal frolic of his own.” (Citations omitted; internal quotation marks omitted.) State v. Privitera, 1 Conn. App. 709, 722, 476 A.2d 605 (1984). Here, Falcioni witnessed a fight and successfully stopped the fight. Under the circumstances of this case, there was sufficient evidence for the jury to find that he was acting within the scope of his duty as a police officer.

We conclude that a reasonable jury could have determined from the evidence presented and the inferences reasonably drawn therefrom that the defendant was guilty beyond a reasonable doubt of assault of a peace officer.

II

We next turn to the defendant’s claim that the court improperly marshaled the evidence. We conclude that the court’s instructions to the jury did not deprive the defendant of his constitutional right to a fair trial.

In addressing the defendant’s claim that the court unfairly marshaled the evidence, we note that “[a] trial court has broad discretion to comment on the evidence adduced in a criminal trial. ... A trial court often has not only the right, but also the duty to comment on the evidence.” (Internal quotation marks omitted.) State v. Gibson, 56 Conn. App. 154, 159, 742 A.2d 397 (1999). “The purpose of marshalling the evidence, a more elaborate manner of judicial commentary, is to provide a fair summary of the evidence, and nothing more; to attain that purpose, the [trial] judge must show strict impartiality. ... To avoid the danger of improper influence on the jury, a recitation of the evidence should not be so drawn as to direct the attention of the jury too prominently to the facts in the testimony on one side of the case, while sinking out of view, or passing lightly over, portions of the testimony on the other side, which deserve equal attention.” (Internal quotation marks omitted.) State v. Adams, 52 Conn. App. 643, 648, 727 A.2d 780 (1999), aff'd, 252 Conn. 752, 748 A.2d 872 (2000).

Here, the defendant challenges only the court’s charge to the jury on the crime of assault of a peace officer and limits his claim to one of unfair marshaling of the evidence. “ ‘The function of the court in a criminal trial is to conduct a fair and impartial proceeding.’ . . . The trial court may, at its discretion, call the attention of the jury to the evidence, or lack of evidence, bearing upon any point in issue and may comment upon the weight of the evidence so long as it does not direct or advise the jury how to decide the matter.” (Citation omitted.) State v. Tatum, 219 Conn. 721, 736, 595 A.2d 322 (1991). In the present case, the court referred the jury to evidence that both the defendant and the state presented. Although the court made only limited references to either the defendant’s evidence or the state’s evidence, it referred to the defendant’s expert witness on toxicology, medical records introduced into evidence by the defendant and to a defense witness. In addition, the court explicitly explained to the jury that its references to evidence were intended merely to clarify or illustrate some particular point. We conclude that the court’s references were evenhanded and did not direct the jury to accept either party’s view of the evidence. Therefore, the court did not abuse its discretion, and the evidence was not improperly marshaled.

Ill

The defendant’s final claim is that the court improperly gave a prejudicial instruction to the jury on whether the victim was reasonably identifiable as a police officer. We disagree.

“In reviewing a challenge to the trial court’s instructions, [this court] must consider the jury charge as a whole to determine whether it is reasonably possible that the instruction misled the jury.” (Internal quotation marks omitted.) State v. Woods, 250 Conn. 807, 818, 740 A.2d 371 (1999). In deterniining whether a court’s charge satisfies constitutional requirements, however, “individual jury instructions should not be judged in artificial isolation, but must be viewed in the context of the overall charge. . . . The pertinent test is whether the charge, read in its entirety, fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. . . . Thus, [t]he whole charge must be considered from the standpoint of its effect on the [jurors] in guiding them to the proper verdict . . . and not critically dissected in a microscopic search for possible error. . . . Accordingly . . . we must consider the jury charge as a whole to determine whether it is reasonably possible that the instruction misled the jury. ” (Internal quotation marks omitted.) State v. Griffin, 253 Conn. 195, 206, 749 A.2d 1192 (2000).

Our review of the entire charge satisfies us that it adequately alerted the jury to the fact that it was for the jury to determine whether the victim “communicated in some reasonable way that he was a police officer to this defendant . . . .” Furthermore, an examination of the entire charge reveals that it accurately reflected the elements of the offense of assault of a peace officer. Indeed, our Supreme Court has held that instructions virtually identical to the ones here were legally accurate. See State v. Woolcock, supra, 201 Conn. 628-32. The court instructed the jury that it could find that Falcioni was reasonably identifiable as a police officer if it found that he had communicated to the defendant in some reasonable way that he was a police officer. Thus, the court left to the jury the question of whether Falcioni reasonably identified himself to the defendant as a police officer.

“The pertinent test is whether the charge, read in its entirety, fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law.” (Internal quotation marks omitted.) State v. Figueroa, 235 Conn. 145, 170, 665 A.2d 63 (1995). We therefore conclude that it is not reasonably possible that when viewed as a whole, the court’s instructions on the law of assault of a peace officer could have misled the jury.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-59 (a) provides in relevant part: “A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument . . .

       General Statutes § 53a-167c (a) provides in relevant part: “A person is guilty of assault of a peace officer . . . when, with intent to prevent a reasonably identifiable peace officer . . . from performing his or her duties, and while such peace officer ... is acting in the performance of his or her duties, (1) such person causes physical injury to such peace officer . . . .”

       General Statutes § 53a-8 (a) provides: “A person, acting with the mental stale required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender.”
      General Statutes § 53a-60 (a) provides in relevant part: “A person is guilty of assault in the second degree when ... (2) with intent to cause physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument other than by means of the discharge of a firearm . . . .”

       Falcioni testified that he intervened on the basis of his obligation as a police officer to take action because he was observing a felonious assault.

       The court instructed the jury in relevant part as follows: “If I should refer to any evidence and not refer to some—I have referred to some, it is only for a point of clarification or law or point of illustration or to refresh your recollection as to the general nature of the testimony. You are not to understand that I intend to emphasize any evidence I mention or limit your consideration to it. If I do not mention certain evidence, and I assure you I will not mention most of the evidence, you will supply the evidence that I do not mention from your own recollection. If I should incorrectly state any evidence when I refer to it, you will correct my error because it is your province to review the evidence and determine what facts are established by the evidence.”

       The court’s instructions to the jury in relevant part were as follows: “In order to find the defendant guilty of [the] offense [of assault of a peace officer], one of the elements the state must prove is that [the victim] was a reasonably identifiable peace officer or police officer. By reasonably identifiable the law does not mean that an officer must be in uniform or that he must have displayed a badge or used specific words or conduct to advise others of his status as a police officer. In other words, this law not only protects police officers who through the eye of the person involved present themselves with a badge and other indications of their status as police officers, but also police officers whom the actor, which refers to [the defendant], the actor either knows or in fact should reasonably know to be a police officer. Please note that the law refers to a reasonably identifiable police officer. It is not a defense to the charge that the person who assaults an officer was not absolutely certain that the other party in fact was an officer. You must determine whether the defendant knew or should reasonably have known [that the victim] was a police officer. In making this decision, you should look not only at [the victim’s] words and conduct, but also at the way that the defendant acted at and around the time [the victim] claims to have identified himself as an officer. If [the victim] at any time orally identified himself as a police officer to the defendant, then you may find that [the victim] was reasonably identified. That [the victim] could have used other means to identify himself as a police officer to the defendant does not necessarily mean that [the victim] failed to reasonably identify himself to the defendant. As long as you find that [the victim] communicated in some reasonable way that he was a police officer to this defendant, then under the law, [the victim] was, at the time, a reasonably identifiable police officer. In the final analysis, it is for you to determine whether [the victim] reasonably identified himself to the defendant as a police officer based on all the circumstances that you heard during that portion of the case and during that evidence.”


author: HEALEY, J.

text:
    THOMAS W. SCHIAPPA ET AL. v. DANIEL J. FERRERO ET AL.
    (AC 19422)
    Foti, Mihalakos and Healey, Js.
    Argued October 17, 2000
    officially released February 20, 2001

      Theodore R. Tyma, for the appellants (defendants).

      Neil R. Marcus, with whom, on the brief, was Monte E. Frank, for the appellees (plaintiffs).
   Opinion

HEALEY, J.

The defendants, Daniel J. Ferrero and Barbara Ferrero, appeal from the judgment of the trial court accepting the report of the attorney trial referee and awarding the plaintiffs, Thomas Schiappa and Joyce Schiappa, title to certain real property that they had acquired by adverse possession, as well as damages for trespass. The dispositive issue on appeal is whether the court improperly referred the case to the same referee for a new trial with the directive that he “may incorporate the proceedings in the prior trial.” We reverse the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. On May 24, 1965, the plaintiffs purchased a residential lot in Trumbull. On March 30,1994, the defendants purchased the lot bordering the plaintiffs’ property on the western side and soon, thereafter, began to use a portion of the property that the plaintiffs had been using as their own since 1965. The plaintiffs brought an action to determine ownership of the disputed property and sought damages for trespass.

On September 11 and 12, 1996, the parties tried this action to an attorney trial referee. On January 7, 1997, the referee had not yet filed his report. The defendants’ counsel sent a letter to the plaintiffs indicating that the end of the 120 day limit under Practice Book § 19-4 for the referee to file his report was approaching. The defendants’ counsel then sent a letter to the attorney trial referee informing him that the parties had agreed to extend the time limit by forty-five days. On January 22, 1997, more than 120 days after the completion of the trial, the referee filed his report in which he recommended that judgment be rendered in favor of the plaintiffs. This report was, however, not timely filed.

Nonetheless, on February 5, 1997, the defendants filed a motion to correct the referee’s report and, on March 12, 1997, they filed a revised motion to correct. On June 16, 1997, the attorney trial referee denied, in substantial part, the defendants’ revised motion to correct. On July 23, 1997, the defendants filed a motion to vacate the report of the attorney trial referee and for a new trial. The defendants did not pursue this motion. On December 22, 1997, after the defendants had filed a series of objections to the decisions of the referee denying their motions to correct his initial report, the plaintiffs filed a motion requesting that the court accept the referee’s initial report. In response, the defendants objected on the ground that the initial report was not timely filed.

On February 13,1998, the trial court issued a written memorandum of decision in which it rejected the attorney trial referee’s report as untimely on the basis of the 120 day time limit of Practice Book § 19-4 and ordered a new trial before the same referee, directing the referee to use his discretion to include “all of the proceedings to date, including the transcript of the prior proceeding, and . . . such additional evidence ... as the referee may deem admissible and proper.” Thereafter, the defendants filed a motion to reargue, claiming that the court violated Practice Book § 19-17 by permitting the referee to incorporate into the new trial evidence from the first trial. That motion was never heard. The court issued a notice that a trial date had been set.

On April 2, 1998, the attorney trial referee conducted a “new trial.” At the outset, he referred to the court’s memorandum and announced, “I have made the decision that I am going to incorporate all the prior proceedings and the transcripts [of the original hearing] into this trial. Are there any further pieces of evidence or argument or information that should be presented to me?” Neither party offered any additional evidence. The defendants did, however, raise the question of whether the attorney trial referee should be disqualified for the new trial because he had tried and decided the original case and because his report had been rejected. The referee responded that it was beyond his capacity to rule on that question because he was ordered by a Superior Court judge to conduct the new trial. For this reason, the referee opined that it was unnecessary to get to the issue of whether a new hearing officer should have been appointed.

On May 29, 1998, the attorney trial referee timely issued his report, recommending judgment in favor of the plaintiffs. This second report was almost identical to the first report. The defendants filed a motion to correct the report, which the referee denied in substantial part. The defendants thereafter filed exceptions and objections to the referee’s report. On March 2,1999, the court corrected the referee’s report to fix the westerly boundary of the northwest comer of the plaintiffs’ property from thirty feet to twenty feet. The court found no merit to any of the other exceptions and objections that had been filed. The court then rendered judgment in favor of the plaintiffs, found that they had obtained title to the disputed property by adverse possession and awarded damages for trespass. The defendants appealed. Additional facts will be addressed where necessary.

The defendants claim that once the court rejected the attorney trial referee’s initial report as untimely, it improperly referred the case back to the same referee for a new trial with the directive that the referee may, at his discretion, “incorporate the proceedings in the prior trial” into the new trial, in addition to taking any new evidence. We agree with the defendants.

The plaintiffs first argue that the court improperly rejected the initial report of the attorney trial referee because the parties waived the 120 day time limit. In Ficara v. O’Connor, 45 Conn. App. 626, 630, 697 A.2d 696 (1997), however, we held that the parties may not waive or agree to extend the 120 day period under Practice Book § 430A, now § 19-4, because it does not have a waiver provision. “The plain language of § 430A [now § 19-4] is unambiguous. Clearly, it was the intent of the drafters not to provide a waiver provision for the parties to extend the time an attorney referee has to file a report. As a result, the parties cannot waive the 120 day period provided in § 430A. Moreover, while the legislature provided a waiver provision in General Statutes § 51-183b, the judges of the Superior Court, in promulgating the rules of practice for attorney referees, were certainly cognizant of § 51-183b, yet decided not to include a waiver provision in § 430A. . . . Thus, we conclude that the trial court lacked the power to accept an attorney referee’s report that did not comply with § 430A.” (Citations omitted.) Ficara v. O’Connor, supra, 630. The court, therefore, in keeping with Practice Book §§ 19-4 and 19-17, properly rejected the attorney trial referee’s initial report.

The plaintiffs next argue that even if the court properly rejected the attorney trial referee’s initial report, it was proper for it to refer the matter to the same referee for a new trial, pursuant to Practice Book § 19-17, with the direction that the referee could use his discretion to incorporate the previous proceedings. The defendants argue that the court order allowing the referee to incorporate the previous proceedings without holding a “new trial” was improper. We agree with the defendants.

The essence of the defendants’ argument concerns the meaning of the phrase “new trial” as used in Practice Book § 19-17. “The rule.s of statutory construction apply with equal force to Practice Book rules. . . . Where the meaning of a statute [or rule] is plain and unambiguous, the enactment speaks for itself and there is no occasion to construe it. Its unequivocal meaning is not subject to modification by way of construction.” (Citation omitted; internal quotation marks omitted.) Pitchell v. Hartford, 247 Conn. 422, 432, 722 A.2d 797 (1999). “A cardinal rule of statutory construction is that where the words of a statute [or rule] are plain and unambiguous the intent of the [drafters] in enacting the statute [or rule] is to be derived from the words used. . . . Where the court is provided with a clearly written rule, it need look no further for interpretive guidance. ” (Internal quotation marks omitted.) Ficara v. O’Connor, supra, 45 Conn. App. 629.

“In a general sense, the term trial means the investigation and decision of a matter in issue between parties before a competent tribunal, including all the steps taken in the case from its submission to the court or jury to the rendition of judgment.” (Internal quotation marks omitted.) Tureck v. George, 44 Conn. App. 154, 157, 687 A.2d 1309, cert. denied, 240 Conn. 914, 691 A.2d 1080 (1997). In the present case, in contemplation of the law, the new trial was required to be a proceeding for a reexamination of the facts put in issue by the pleadings followed by the referee’s conclusions and recommendations to the trial court. There is no language, express or implied, in the rule that authorizes the court to give the referee the discretion to include “all of the proceedings to date, including the transcripts of the prior proceeding,” in referring the case for a new trial. Not only does such a provision exceed the court’s authority under the rule of practice, it also skews the concept of a “new trial.” In the present case, the referee’s reliance on the prior proceedings did not constitute an examination of the facts put in issue under the pleadings and therefore did not constitute a “new trial” as required by § 19-17.

Once the court rejected the attorney trial referee’s report, there was in fact no legally viable report of the referee. A “new trial,” as we have described that term in the context of the circumstances of this case, is necessary. We believe that the trial court’s referral in this case rendered the 120 day time limit in Practice Book § 19-4 meaningless. “[E]ither we adhere to the mies or we do not adhere to them.” (Internal quotation marks omitted.) Jacobs v. Fazzano, 59 Conn. App. 716, 727, 757 A.2d 1215 (2000), quoting Osborne v. Osborne, 2 Conn. App. 635, 639, 482 A.2d 77 (1984). Therefore, the court’s judgment authorizing the referee to use his discretion to incorporate the previous proceedings and any additional admissible evidence was improper because the new proceedings did not constitute a “new trial” in this case, and the court exceeded its authority under Practice Book § 19-17 in rendering that judgment.

The judgment is reversed, and the case is remanded to the trial court for further proceedings consistent with this opinion and Practice Book § 19-17.

In this opinion the other judges concurred.

       The defendants also argue that the court improperly found (1) a material fact in its memorandum of decision that the referee should have found and (2) that the plaintiffs proved by clear and convincing evidence that they had acquired the disputed property by adverse possession. We need not address these issues, however, in light of our resolution of the dispositive issue.

       Practice Book § 19-4 provides in relevant part: “An attorney trial referee . . . shall file a report . . . within one hundred and twenty days of the completion of the trial . . .

       Although the plaintiffs filed objections to these motions, the record does not indicate whether the court ruled on the objections.

       The defendants’ motion stated in relevant part: “The defendants ... in accordance with . . . Ficara v. O’Connor, 45 Conn. App. 626 [697 A.2d 696] (1997), [officially released July 8, 1997] respectfully [move] that this Court vacate the Report of the Attorney Trial Referee and order a new trial . . . for the reason that ... the trial court lacks the power to accept any report submitted by [the referee] based upon the failure to comply with the provisions of Practice Book § 430A [now § 19-4]. Specifically, [the referee] failed to file a report. . . within one-hundred twenty (120) days of the completion of the trial . . . .”

       Practice Book § 19-17 provides in relevant part: “(a) The court shall render such judgment as the law requires upon the facts in the report. If the court finds that the . . . attorney trial referee has materially erred in its rulings or that there are other sufficient reasons why the report should not be accepted, the court shall reject the report and refer the matter to the same or another . . . attorney trial referee . . . for a new trial or revoke the reference and leave the case to be disposed of in court.
      “(b) The court may correct a report at any time before judgment upon the written stipulation of the parties or it may upon its own motion add a fact which is admitted or undisputed or strike out a fact improperly found.”

       At one time, both parties thought that the attorney trial referee was exempt from the 120 day time limit. Oddly enough, in a letter written by the defendants’ counsel to the plaintiffs, the defendants’ counsel wrote: “As you are aware . . . General Statutes § 51-183b limits the power of a trial judge to render judgment to a period not later than 120 days from the completion date of the trial. The statute empowers the parties to waive the time requirement. . . . The appellate courts of this state have held that attorney trial referees are exempt from the 120 day time requirement .... See Kowalsky Properties, Inc. v. Sherwin-Williams Co., 7 Conn. App. 136, 141 [508 A.2d 43] (1986). . . . That case . . . holds that there is no requirement that the court must render judgment on the report of an attorney trial referee within 120 days of completion of the trial hearing before the referee. ... In view of the foregoing, our respective parties’ rights remain protected as we continue to wait for the decision of the referee. ” (Emphasis in original.)
      The defendants’ application of Kowalsky Properties, Inc., is inaccurate. Kowalsky Properties, Inc., interpreted § 51-183b and held that it applied only to judges and “state trial referee[s] who [have] the power to render judgments.” (Internal quotation marks omitted.) Kowalsky Properties, Inc. v. Sherwin Williams Co., supra, 7 Conn. App. 140. The attorney trial referee in this case was not empowered to render a judgment, and, therefore, § 51-183b is inapplicable in this case. Id. This case is controlled by Practice Book §§ 19-4 and 19-17.

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

       Even though an attorney trial referee cannot render a judgment, the trial before a referee should result in a recommendation that the court render judgment in accordance with the recommendation. See Seal Audio, Inc. v. Bozak, Inc., 199 Conn. 496, 502, 508 A.2d 415 (1986).

       The plaintiffs argue that the court’s decision to refer the case back to the same referee, allowing the same referee to incorporate all of the prior proceedings, was done to promote judicial economy and that any other ruling would have been counterproductive. We make two observations. First, whether considerations of judicial economy are well served in such circumstances is questionable. Second, referring the matter to the same referee with the discretion given the referee in this case hardly advances the purpose of referring matters to referees. The court's referring the case to tire same referee with the discretion to incorporate the previous proceedings eviscerates the purpose of referring a case for a “new trial.”

        We note, in this context, that under Practice Book § 19-17, which concerns the function of the court in acting upon such reports, the court has certain options from which to choose. That section provides in relevant part that “the court shall reject the report and refer the matter to the same or another . . . attorney trial referee ... for a new trial or revoke the reference and leave the case to be disposed of in court.” Practice Book § 19-17 (a). We recognize, however, that referring the case to the same referee and giving that referee the discretion to use the prior record may not afford the parties the new trial to which they are entitled.


author: Per Curiam.

text:
    IN RE KENNETH B.

    (AC 20698)
    (AC 20714)
    Schaller, Pellegrino and O’Connell, Js.
    Argued November 28
    officially released December 26, 2000

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79-3, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. RONNIE JONES
    (AC 17713)
    Landau, Spear and Mihalakos, Js.
    Argued November 27
    officially released December 26, 2000
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. EARL WHITFIELD
    (AC 20320)
    Landau, Spear and Daly, Js.
    Argued November 29
    officially released December 26, 2000
   Per Curiam.

The judgment is affirmed.


text:
    LINDA J. SLACK v. RAYMOND B. SLACK
    (AC 20686)
    Landau, Mihalakos and Pellegrino, Js.
    Submitted on briefs December 4
    officially released December 26, 2000
   Per Curiam.

The judgment is affirmed.