author: Santaniello, J.

text:
    State of Connecticut v. Thomas R. Stange
    (13359)
    Peters, C. J., Callahan, Glass, Hull and Santaniello, Js.

      Argued May 5
    decision released August 15, 1989

      Eric A. Malchodi, certified legal intern, with whom were Todd D. Fernow, Lawrence P. Rizzo, certified legal intern, and, on the brief, Michael R. Sheldon and Timothy H. Everett, for the appellant (defendant).

      Geoffrey Marion, deputy assistant state’s attorney, with whom, on the brief, were JohnM. Bailey, state’s attorney, James Thomas, assistant state’s attorney, and Janine DAngelo, former legal intern, for the appellee (state).
   Santaniello, J.

The defendant, Thomas Stange, was charged with one count of murder in violation of General Statutes § 53a-54a in connection with the shooting death of Roger Gagnon. Following a trial by jury, he was convicted of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (1) and sentenced to a term of imprisonment. The defendant claims on appeal that the trial court erred in: (1) admitting under the spontaneous utterance exception to the hearsay rule statements made by the victim to a police officer identifying the defendant as the person who shot him; (2) commenting beyond permissible bounds on the admission of the victim’s spontaneous utterances in its charge to the jury; and (3) refusing to permit the testimony of a police detective regarding statements that the victim had made to a friend. We find no error.

The jury could reasonably have found the following facts. On January 14,1985, between 1:30 and 1:45 p.m., persons living in the area of East Plymouth Road, Ter-ryville, heard two shots fired in rapid succession. A few minutes after hearing the shots, Tregg Johnson, the defendant’s next door neighbor, and Douglas Trzuskowski, Johnson’s guest, heard the victim, Roger Gagnon, yelling for help and knocking at the front door of the Johnson home. Looking out a window, Johnson and Trzuskowski saw the victim lying on the ground, holding his bleeding arm and yelling for help. Trzuskowski telephoned the Bristol police, who in turn notified the Plymouth police dispatcher at approximately 1:51 p.m. While waiting for the police to arrive, Johnson and Trzuskowski, watching from inside the house, saw the victim repeatedly fall to the ground, stagger to his feet and attempt to walk.

At approximately 1:56 p.m., police officer James Senetcen arrived at the Johnson home. He found the victim lying on Johnson’s front lawn about thirty feet from East Plymouth Road, covered in blood, rocking back and forth in a fetal position, rubbing his abdomen and screaming that he had been shot. While waiting for an ambulance to arrive, Senetcen attempted to calm the victim, whom he believed to be in shock, and questioned him regarding what had happened. The victim told Senetcen that he had been shot by “Tom Stange.”

At 2:01 p.m., an ambulance arrived and paramedic James Dubowsky examined the victim. He observed that the victim had sustained six to eight shotgun pellet wounds in his abdomen, chest and right wrist and was beginning to go into shock. The victim later died from the gunshot wounds.

At approximately 2:25 p.m., the Plymouth police dispatcher received a call from a man identifying himself as Thomas Stange of 27 East Plymouth Road in Ter-ryville. Stange reported that minutes before, while he was outside, someone had run across his yard and threatened him. Later that afternoon, the defendant admitted to the police that he had shot the victim, but he claimed that he had acted in self-defense when frightened by the victim.

I

We consider first the defendant’s claim that the trial court erred in admitting under the spontaneous utterance exception to the hearsay rule statements made by the victim to Senetcen. This claim arises out of the following trial court proceedings.

On the second day of trial, outside the jury’s presence, the court conducted a hearing on the defendant’s motion in limine to determine the admissibility of the victim’s statements to Senetcen. In its offer of proof, the state called Senetcen, Dubowsky and Paul Morocco, an emergency room employee at Bristol Hospital, all of whom testified as to the victim’s grave condition between the time he was found on Johnson’s front lawn and the time he arrived at the hospital.

Senetcen also testified that upon arriving at the scene and determining that the victim was unarmed, he knelt by the victim and questioned him for “one to two minutes.” Senetcen told the court that despite the victim’s agitated state, he was able to understand quite well the victim’s responses from which he learned the victim’s name, address and date of birth. When Senetcen asked the victim who had shot him, he gestured toward the defendant’s house and said, “Tom Stange.” He also gave Senetcen a description of the defendant. The victim further informed Senetcen that he had arrived at the defendant’s house at 1:45 p.m. in an attempt to get money owed to him by the defendant, that he had gone to the defendant’s backyard and that the defendant said, “Come and get it” and shot him twice. When Senetcen asked the victim if he thought he was going to die, he replied that he felt “real bad.”

At the conclusion of the state’s offer of proof, the defendant argued that the victim’s statements to Senetcen were hearsay and inadmissible under either the spontaneous utterance or dying declaration exceptions to the hearsay rule. The trial court, however, permitted the state to present Senetcen’s testimony regarding the victim’s statements to him under the spontaneous utterance exception, stating that “it is clear to the court . . . that the likelihood for reflective thinking was not there under the circumstances.” The defendant contends that, on the facts of this case, the trial court’s admission of Senetcen’s testimony over his objection and exception was manifest error that unfairly and critically undermined his claim of self-defense. We disagree.

In Perry v. Haritos, 100 Conn. 476, 484, 124 A. 44 (1924), we recognized a spontaneous utterance exception to the hearsay rule for an utterance or declaration that follows some startling occurrence, that makes reference to the occurrence by one having an opportunity to observe it and that is made in such close connection to the occurrence and under such circumstances as to negate the opportunity for deliberation and fabrication. “The ultimate question is whether the utterance was spontaneous and unreflective and made under such circumstances as to indicate absence of opportunity for contrivance and misrepresentation.” Cascella v. Jay James Camera Shop, Inc., 147 Conn. 337, 342, 160 A.2d 899 (1960). Whether an utterance is spontaneous and made under circumstances that would preclude contrivance and misrepresentation is a preliminary question of fact to be decided by the trial judge. State v. Chesney, 166 Conn. 630, 634, 353 A.2d 783, cert. denied, 419 U.S. 1004, 95 S. Ct. 324, 42 L. Ed. 2d 280 (1974); Cascella v. Jay James Camera Shop, Inc., supra; Perry v. Haritos, supra, 485. The trial judge exercises broad discretion in deciding this preliminary question, and that decision will not be reversed on appeal absent an unreasonable exercise of discretion. State v. Chesney, supra; Perry v. Haritos, supra.

The crux of the defendant’s argument is that the victim’s statements lacked the requisite spontaneity to be admissible under the doctrine enunciated in Perry v. Haritos, supra. In support of his argument, the defendant asserts that the victim’s statements consisted of a careful and orderly set of responses to a series of questions, some of which were only peripherally related to the shooting, and followed the shooting by some fifteen to thirty minutes. He maintains that, in light of these factors, the statements were not made at a time and under circumstances in which the victim was incapable of cognitive, deliberate and reflective responses as required under Perry v. Haritos, supra.

While the element of time between the startling occurrence and the statement itself is important, it is not dispositive. Id., 484. The time element is but one factor to be weighed by the trial judge, together with any other material facts in the circumstances surrounding the statement, when deciding the preliminary question of whether a statement was spontaneous. Id.

A majority of the jurisdictions that have addressed the issue of the effect of the time interval between the startling occurrence and the making of the spontaneous utterance have recognized that an acceptable time interval cannot be specified. Each case must be decided on its particular circumstances. See United States v. Golden, 671 F.2d 369 (10th Cir.), cert. denied, 456 U.S. 919, 102 S. Ct. 1777, 72 L. Ed. 2d 179 (1982) (victim’s statements made fifteen minutes after assault and following high speed flight from the scene admissible as excited utterance); Hilyer v. Howat Concrete Co., 578 F.2d 422 (D.C. Cir. 1978) (statement by worker made between fifteen and forty-five minutes after fellow worker was run over by a truck admissible as an excited utterance with evidence indicating continued excitement); People v. Francis, 129 Cal. App. 3d 241, 180 Cal. Rptr. 873 (1982) (victim’s statements made in calm manner within twenty minutes of stabbing under circumstances of physical and emotional stress and shock admissible as spontaneous utterance); People v. Gacho, 122 Ill. 2d 221, 522 N.E.2d 1146 (1988) (victim’s statement naming attacker six and one-half hours after shooting admissible as spontaneous declaration); People v. Brown, 70 N.Y.2d 513, 517 N.E.2d 515, 522 N.Y.S.2d 837 (1987) (victim’s statements to police officer approximately thirty minutes after shooting properly admitted as excited utterance); Commonwealth v. Blackwell, 343 Pa. Super. 201, 494 A.2d 426 (1985) (victim’s statements made within thirty to forty-five minutes after he was robbed were spontaneous reactions to startling event); State v. Black, 46 Wash. App. 259, 730 P.2d 698 (1987) (victim’s statements made within hours of rape while still distraught admissible as excited utterance); see generally annot., 4 A.L.R.3d 149, § 6.

Similarly, other jurisdictions have not barred the admission of statements in evidence as spontaneous utterances solely because they were made in response to a question or series of questions. United States v. Iron Shell, 633 F.2d 77 (8th Cir. 1980) (police officer’s testimony as to nine year old victim’s statements admissible as spontaneous utterances although made fifteen minutes after assault and in response to an inquiry); People v. Farmer, 47 Cal. 3d 888, 765 P.2d 940, 254 Cal. Rptr. 508 (1989) (victim’s responses to extensive questioning admissible as spontaneous utterance; preoccupation with intense pain and concern for survival precludes opportunity or incentive to fabricate); State v. James, 310 N.W.2d 197 (Iowa 1981) (victim’s statements in response to questioning by police thirty minutes after attack admissible as excited utterance); People v. Brown, supra (victim’s statements made in response to deliberate questions of police officer thirty minutes after shooting admissible as spontaneous utterance); State v. Robinson, 44 Wash. App. 611, 722 P.2d 1379 (1986) (victim’s responses to questions admissible as excited utterances); see generally annot., 4 A.L.R.3d 149, § 21.

In the present case, the record indicates that the victim’s statements were made approximately fifteen to thirty minutes after a shooting that inflicted serious wounds. During the interval of time between the shooting and the statements, the victim moved some seventy-five yards from the defendant’s backyard to Johnson’s front door. The victim was observed staggering, falling repeatedly and continuously crying out for help. Senetcen testified as to both the agitated and painful state in which he found the victim and his belief that the victim was in shock. There is nothing in the record to suggest that the victim, at the time that he made the statements, was no longer under the influence of the stress and excitement of being shot.

We are not persuaded that, under these particular circumstances, the trial court’s determination that the victim lacked the opportunity to reflect and that his statements to Senetcen were therefore admissible as spontaneous utterances was an abuse of its discretion.

II

The defendant next claims that the trial court’s comments to the jury in its final charge regarding the admission of the victim’s spontaneous utterances violated the defendant’s right to a fair trial by an impartial jury. Because the defendant did not raise this claim below as required by our rules, Practice Book § 4185, review can be had only if “the record adequately supports a claim that [the] litigant has clearly been deprived of a fundamental constitutional right and a fair trial.” State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). “Belated appellate scrutiny is warranted only for egregious errors that undermine the fairness of a trial and cast doubt on the integrity of judicial proceedings.” State v. Hull, 210 Conn. 481, 485, 556 A.2d 154 (1989).

While the defendant concedes that the trial court has broad discretion to comment on evidence, he claims that the trial court’s charge on the admission of the victim’s statements as spontaneous utterances amounted to irremediable, partisan judicial commentary that wholly compromised the jury’s impartiality in favor of the state’s claim that the defendant had not shot the victim in self-defense. The defendant cites our decisions in State v. Smith, 200 Conn. 544, 512 A.2d 884 (1986), and State v. Fernandez, 198 Conn. 1, 501 A.2d 1195 (1985), in support of his argument that partisan commentary by the trial court is reviewable under State v. Evans, supra. In Fernandez and Smith we recognized that partisan commentary, if fairly established by the record, is reviewable under Evans because such conduct deprives defendants of the very essence of their constitutional right to a fair trial by an impartial jury.

The defendant has specifically challenged that portion of the charge in which the court explained its admission of the victim’s statements as spontaneous utterances. At one point in this challenged portion the court stated: “I ruled rightly or wrongly that the statement of Mr. Stange—-the statement of Mr. Gagnon to be a spontaneous utterance because it was my opinion that the traveling, that the path he took having been shot and injured and his concern for his health and welfare was a spontaneous utterance. That he did not have sufficient opportunity to concoct a story. That doesn’t mean you have to accept his statement as true or as reliable. It is for you to decide. I had to make the decision to admit it, and as was pointed out to you it is true that that statement is subject to the same credibility. It is not different than any other testimony that is admissible. You have a right to accept or reject it anyway you feel, and the fact that I have admitted evidence in this court does not necessarily mean that you must accept it. That’s your function. The law permits it on the basis of admissibility, but you do not have to accept it. I just point out to you that it is for you to decide )>

When examining a jury charge to determine whether error exists, we must examine the charge as a whole. State v. McCalpine, 190 Conn. 822, 830, 463 A.2d 545 (1983). We note that, early in its charge, the trial court made it clear to the jury that it was solely responsible for determining the facts of the case and that its function was to weigh and consider all the evidence. The charge as a whole is replete with similar instructions. In addition, the final arguments of both the defense counsel and the state’s attorney specifically referred to the jury’s prerogative to accept or reject the spontaneous utterances. Defense counsel further informed the jury that with regard to the victim’s statements that had been admitted as spontaneous utterances, “[Yjou’ll be instructed that you need not believe that.”

We are not persuaded that the trial court’s statements, when viewed in the context both of the facts of the case and the charge as a whole, support the defendant’s claim that he has been deprived of a fundamental constitutional right and a fair trial. The charge as a whole, rather than a partisan commentary on the part of the trial court, is a thorough explanation by the court of its ruling to admit the victim’s statements as spontaneous utterances. The Evans rule, which is designed to protect fundamental rights, deals with substance, not labels. Appellate review cannot be guaranteed by simply characterizing a claim as constitutional. State v. Hull, supra, 484; State v. Gooch, 186 Conn. 17, 18, 438 A.2d 867 (1982). We therefore decline to review the defendant’s second claim of error under the second exceptional circumstance of State v. Evans, supra.

Ill

The defendant’s third claim of error arises out of an evidentiary ruling by the trial court to exclude as hearsay the testimony of police detective Robert Connor as to statements made by the victim to his friend, Hiram Montalvo, who was unavailable to testify. Near the end of the trial, defense counsel requested a hearing outside the presence of the jury to determine the admissibility of Connor’s testimony. In his offer of proof, the defendant called Connor, who testified that he and detective John Caukins interviewed Montalvo several hours after the shooting. During that interview, which Connor characterized as a narrative by Montalvo rather than a question and answer session, Caukins took notes that were reduced two days later to a report that attempted to paraphrase Montalvo’s statements. Reading from the report, Connor testified that Mon-talvo related to the officers, in the form of a paraphrase, his conversation with the victim two days before the shooting. In that conversation, the victim told Montalvo that he was depressed over the defendant’s failure to repay money owed to him and that he intended to scare the defendant into making payment. Connor also read from the report that Montalvo stated that the victim owned a .22 caliber rifle.

The court refused to admit, on hearsay grounds, Con-nor’s testimony, to which ruling the defendant took an exception. While the defendant conceded at oral argument that there was no error in the trial court’s eviden-tiary ruling on this issue, he argued in his brief that the ruling was a mechanistic application of the eviden-tiary rules against hearsay that implicated his constitutional rights. The defendant contends that the trial court, having admitted the victim’s statements to Senetcen, denied the defendant his right to a fair opportunity to defend against the state’s accusations under the sixth and fourteenth amendments to the United States Constitution when it subsequently excluded statements made by the victim to Montalvo as proffered by Connor. The defendant further argues that Mon-talvo’s statements were critical to the defense because they tended to contradict the statements made by the victim’s spontaneous utterances that were otherwise incapable of being rebutted through the “classic tools of confronting one’s accuser and compulsory process.” We disagree with the defendant’s constitutional characterization of this issue and find no error in the trial court’s ruling.

“Under our state and federal constitutions, ‘ “[t]he right of an accused in a criminal trial to due process is, in essence, the right to a fair opportunity to defend against the State’s accusations. The rights to confront and cross-examine witnesses and to call witnesses in one’s own behalf have long been recognized as essential to due process.” ’ State v. Mastropetre, 175 Conn. 512, 520, 400 A.2d 276 (1978), quoting Chambers v. Mississippi, 410 U.S. 284, 294, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973); State v. Fernandez, [supra, 15].” State v. Torres, 210 Conn. 631, 644, 556 A.2d 1013 (1989).

We have also previously recognized that not every evidentiary ruling adverse to a defendant results in constitutional error and that “[i]n the exercise of his sixth amendment right to compulsory process ‘the accused, as required of the State, must comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence.’ ” State v. Douglas, 203 Conn. 445, 455, 525 A.2d 101 (1987), quoting Chambers v. Mississippi, supra, 302.

Exceptions to the hearsay rule have been recognized where necessity exists and where “circumstances exist which can be deemed to render the statement in question ‘ “equivalent in reliability and trustworthiness to the standard of ordinary testimony when subjected to cross-examination.” ’ Shea v. Hyde, [107 Conn. 287, 289, 140 A. 486 (1928)].” State v. DeFreitas, 179 Conn. 431, 440, 426 A.2d 799 (1980). “The question of trustworthiness is a crucial threshold issue of law going to admissibility, and it must be resolved first by the trial judge before it becomes a question of weight for the jury.” United States v. Robinson, 544 F.2d 110, 115 (2d Cir. 1976).

The defendant acknowledges that his right to defend himself against the state’s accusations does not entitle him to disregard reasonable rules governing the admissibility of evidence. We are not convinced, however, as the defendant seems to be, that the excluded evidence was so critical to the defendant and so trustworthy and reliable that the trial court should have made a special exception to permit the statements to be admitted as was found necessary in Chambers v. Mississippi, supra.

In deciding whether to admit the victim’s statements to Montalvo as related to Connor, the trial court faced a double hearsay problem with its concomitant questions of the reliability and trustworthiness of both the victim and Montalvo. While the defendant contends that the necessary reliability is met by the friendship between the victim and Montalvo and the lack of any reason for either declarant to fabricate his statements, the record indicates that the trial court found the evidence unreliable in light of the fact that Montalvo had previously been sued by the victim.

As to the critical need of the excluded evidence to contradict the victim’s spontaneous utterances, we note that the defendant himself testified to his being frightened by the victim and his shooting of the victim out of fear for his own life. Police officers and family members of the defendant testified to his claim of self-defense in addition to testimony offered by the defendant and one of the victim’s neighbors as to threatening behavior previously exhibited by the victim.

Furthermore, we find unavailing the defendant’s argument that our decision in State v. Torres, supra, supports his claim that the trial court violated the defendant’s constitutional right to defend against the state’s accusations. In Torres, the trial court admitted a declarant’s consistent statements made prior to a probable cause hearing and offered by the state to corroborate the declarant’s probable cause testimony. The trial court, however, refused to allow the defendant to impeach the same declarant with his inconsistent statements made prior to the probable cause hearing. We held that this uneven application of the rules of evidence by the trial court denied the defendant his right to a fair opportunity to defend against the state’s accusations. We do not agree with the defendant’s conclusion that because the statements to Senetcen and the statements to Montalvo were made by the same declarant, the victim, and referred to issues related to the shooting, the evidence was the same and required equal treatment under Torres.

In this case, the trial court was required to exercise its discretion in determining the admissibility of two independent offers of hearsay evidence. We have previously stated that the trial court did not abuse its discretion in determining that the circumstances surrounding the making of the victim’s statements to Senetcen rendered them reliable for admission as spontaneous utterances. Furthermore, we are not persuaded that the trial court acted unreasonably in denying the admission of the victim’s statements to Montalvo in the absence of circumstances indicating the reliability of those statements.

In light of the foregoing discussion, we conclude that the trial court’s exclusion of Connor’s testimony did not deprive the defendant of a fair opportunity to defend against the state’s accusations.

There is no error.

In this opinion the justices concurred.

       The trial court determined that because the victim’s statements did not necessarily reflect any consciousness of impending death, the statements were not admissible as dying declarations.

       The defendant’s exception was duly taken and noted at the time of the trial court’s ruling and again when the statements were related to the jury.

       We held in State v. Chesney, 166 Conn. 630, 634, 353 A.2d 783, cert. denied, 419 U.S. 1004, 95 S. Ct. 324, 42 L. Ed. 2d 280 (1974), that the rule regarding the admission of spontaneous utterances in civil cases is applicable in the trial of criminal cases.

       Our decision in State v. Chesney, 166 Conn. 630, 353 A.2d 783, cert. denied, 419 U.S. 1004, 95 S. Ct. 324, 42 L. Ed. 2d 280 (1974), which affirmed the trial court’s preclusion of any inquiry on cross-examination concerning inconsistent statements of a witness made at a grand jury proceeding, was overruled in Chesney v. Robinson, 403 F. Sup. 306 (D. Conn. 1975), aff'd without opinion, 538 F.2d 308 (2d Cir.), cert. denied, 429 U.S. 867, 97 S. Ct. 177, 50 L. Ed. 2d 147 (1976). While the federal District Court concluded that preclusion of the grand jury testimony deprived the petition of his constitutional right to effective cross-examination, it did not review our holding in Chesney on the admission of statements as spontaneous utterances.

       On the basis of the testimony presented, the trial court found that the time span between the shooting and the statements “would at most be thirty minutes, probably more like fifteen minutes.”

       The court instructed the jury as follows: "It is my right also to make comments to you as to the weight of evidence or as to the propriety or lack of propriety of your finding certain facts from that evidence, but where I undertake to make such comments, if I do, they are merely suggestive to you, for you to disapprove or approve in the exercise of your sound judgment. My chief concern with the evidence in this case is to refer to it insofar as to make clear to you the application of the rules of law to this particular case. And if I should refer to certain evidence in this case, if that differs from what you think the evidence is or what you believe the evidence to be, you are to disregard what I tell you the evidence is because you again are the sole determiners of the facts in this case . . . . Now in simple language, ladies and gentlemen, all that I’ve said to you is that you decide what the facts are regardless of what I tell you, regardless of what counsel have said to you. It’s your decision and your right to decide what the facts are, and if what we say to you you disagree with what you believe the facts to have been proven to you, you take what you find and disregard what we say.”

       The defense counsel’s final argument included the following: “Now, Mr. Thomas has referred to the question of Mr. Gagnon’s statement as he lay on the Johnson [lawn]. And you’ll be instructed that you need not believe that. You’re not obligated to believe any one else’s testimony in this case from Thomas Stange’s to the police officers to Roger Gagnon. And in that respect Mr. Gagnon’s statement comes before you [in] much the same respect as any other witness."
      In reference to the victim’s spontaneous utterances, the state’s attorney stated in his final argument: “That doesn’t mean you have to accept it completely. It’s still up to you to pass on that—on that statement.”


source: Caselaw Access Project

author: Shea, J.

license: Public Domain

text:
    Thomas P. Fong et al. v. Planning and Zoning Board of Appeals of the Town of Greenwich
    (13548)
    Shea, Callahan, Glass, Covello and Hull, Js.
    Argued June 7
    decision released August 15, 1989

      Haden P. Gerrish, with whom, on the brief, was Bruce F. Cohen, for the appellants (plaintiffs).

      James A. Fulton, with whom, on the brief, was Douglas S. Skalka, for the appellee (Charles W. Pet-tengill, Jr.).

      James W. Macauley, for the appellee (defendant).
   Shea, J.

This appeal involves the issue of whether a successful applicant to a planning and zoning board of appeals (board) is an indispensable party to an appeal of the board’s decision in his favor and, if so, whether failure to name and serve the applicant deprives the court of subject matter jurisdiction. We affirm the Appellate Court insofar as it concluded that a successful applicant to a zoning board is an indispensable party to such an appeal, but reverse its decision that the failure to name and serve a successful applicant in an appeal from a zoning board decision deprives the court of subject matter jurisdiction, a holding that would require a dismissal of the plaintiffs’ appeal in the trial court. Fong v. Planning & Zoning Board of Appeals, 16 Conn. App. 604, 548 A.2d 454 (1988).

The relevant facts are as follows. The plaintiffs are the owners of a nonconforming commercial building located at 68 Lewis Street, Greenwich. The appellee, Charles W. Pettengill, Jr., is the owner of property immediately adjacent to the plaintiffs’ property. On March 12,1985, the building inspector for the town of Greenwich issued the plaintiffs a building permit to add a second story to their commercial building for the purpose of installing a dry cleaning conveyor system. Although the plaintiffs were required to post the building permit in a conspicuous manner upon issuance, they failed to do so until some time between April 2 and April 11,1985. On May 21,1985, shortly after construction began, Pettengill appealed the granting of the building permit to the planning and zoning board of appeals. The board sustained Pettengill’s appeal and revoked the plaintiffs’ building permit on July 29,1985.

On August 8,1985, the plaintiffs appealed the board’s decision to the Superior Court pursuant to General Statutes § 8-8 (a). The plaintiffs alleged, inter alia, that the board acted illegally, arbitrarily and in abuse of its discretion because the appeal was untimely and thus barred by General Statutes § 8-7. On January 28,1987, the trial court found that Pettengill’s seventy day delay in filing his appeal to the board after the issuance of the building permit was unreasonable. The trial court concluded that Pettengill’s appeal to the board was untimely filed and, therefore, sustained the plaintiffs’ appeal.

On February 11, 1987, Pettengill filed a motion to intervene as a party defendant and a motion to set aside the judgment. Pettengill contended that as one whose appeal to the board had been sustained he was an indispensable party to the appeal from the board’s decision and the failure to join him deprived the court of subject matter jurisdiction. The trial court denied both the motion to intervene and the motion to set aside the judgment on February 17, 1987.

In a supplemental memorandum of decision issued on May 1, 1987, the court found that Pettengill was aware of the pendency of the plaintiffs’ action as of August 8, 1985, and that he voluntarily chose not to intervene until after judgment. The trial court stated that it would have allowed Pettengill to intervene if he had so moved before judgment, but it would not permit intervention after judgment. Thus, the trial court reaffirmed its denial of Pettengill’s motion to intervene and motion to set aside the judgment, but granted Pet-tengill’s request to participate in the appeal of the court’s ruling.

On March 17,1987, the Appellate Court granted petitions for certification filed by the defendant board and by Pettengill. In its decision in the case, the Appellate Court held that “Pettengill was a necessary and indispensable party in the plaintiffs’ appeal from the board’s ruling in Pettengill’s prior appeal to it, and that the plaintiffs’ failure to name and to serve him as a party defendant deprived the court of jurisdiction.” Fong v. Planning & Zoning Board of Appeals, supra, 608-609. We granted the plaintiffs’ petition for certification on November 10, 1988, and now reverse the Appellate Court.

I

In the resolution of this appeal, we must first determine whether the Appellate Court erred in determining that Pettengill was an indispensable party to the plaintiffs’ appeal from the board’s decision. On this issue, we conclude that the Appellate Court did not err.

We have declared that parties are indispensable “when they ‘ “not only have an interest in the controversy, but an interest of such a nature that a final decree cannot be made without either affecting that interest, or leaving the controversy in such condition that its final termination may be wholly inconsistent with equity and good conscience.” Shields v. Barrow, 58 U.S. (17 How.) 130, 139 [15 L. Ed. 158 (1855)]; 3A Moore, Federal Practice § 19.07.’ Standard Mattress Co. v. Hartford, 31 Conn. Sup. 279, 288, 329 A.2d 613 (1974).” Sturman v. Socha, 191 Conn. 1, 6, 463 A.2d 527 (1983).

Moreover, under circumstances similar to the present case, we have stated that “[a]n applicant who received a favorable decision from the zoning board of appeals is a necessary, indeed indispensable, party to an appeal by persons aggrieved by the decision because were the appeal to be sustained the result would be the invalidation and deprivation of rights granted to the applicant by the zoning board. Kuehne v. Town Council, 136 Conn. 452, 462, 72 A.2d 474 [1950]; Devaney v. Board of Zoning Appeals, 132 Conn. 218, 220, 43 A.2d 304 [1945].” Tazza v. Planning & Zoning Commission, 164 Conn. 187, 190-91, 319 A.2d 393 (1972); see also Shulman v. Zoning Board of Appeals, 143 Conn. 182, 183, 120 A.2d 550 (1956). The plaintiffs attempt to distinguish the present case on the ground that in the cases cited the applicant to the board owned the land that was the subject of the zoning decision allowing a particular use of it, while here Pettengill is merely an abutter who succeeded in having approval of a particular use of adjoining land revoked. They maintain that Pettengill’s status as an abutter gives him no greater rights in respect to the appeal from the board than those of any member of the public who had been similarly aggrieved by the original grant of the permit to the plaintiffs. “An abutter has no greater interest than that of any other person found by the court to be aggrieved.” Tazza v. Planning & Zoning Commission, supra, 190.

Pettengill was not merely an abutter, however, but the person who initiated before the board the very proceeding that has resulted in the present appeal. Unlike other abutters or aggrieved members of the public, whose interests may be regarded as adequately represented by the board itself, he had become a party to the administrative proceeding. If he had not prevailed before the board, he could have appealed from its decision. Having been successful, Pettengill acquired a special interest in the subject matter of any appeal resulting from the proceeding that might deprive him of the benefit of its outcome before the board in his favor. We consider this benefit to be equivalent to the “right” granted by a zoning board to a landowner to use his property in a certain manner. It was essential that he be given notice and an opportunity to protect his interests by making him a party to the appeal. Id., 190-91. Accordingly, the Appellate Court did not err in concluding that Pettengill was an indispensable party to the plaintiffs’ appeal.

II

Having determined that Pettengill was an indispensable party, we must determine whether the failure of the plaintiffs to cite and serve him constituted a jurisdictional defect in the proceedings. It is here that we depart from the Appellate Court’s decision.

The Appellate Court determined that the failure to cite and serve Pettengill was a jurisdictional defect based, in part, on our holding in the first Simko case; Simko v. Zoning Board of Appeals, 205 Conn. 413, 533 A.2d 879 (1987) (Simko I); which we subsequently affirmed in Simko v. Zoning Board of Appeals, 206 Conn. 374, 538 A.2d 202 (1988) (Simko II). In finding a jurisdictional defect in the present case, the Appellate Court quoted Simko I as follows: “ ‘The failure to name a statutorily mandated, necessary party in the citation is a jurisdictional defect which renders the administrative appeal subject to dismissal. ’ (Emphasis added.)” Fong v. Planning & Zoning Board of Appeals, supra, 614, quoting Simko I, supra, 421. The language in this passage that the Appellate Court did not emphasize, however, is critical. Our holdings in the Simko cases finding no error in the trial court’s dismissal of the zoning appeals on jurisdictional grounds centered on the fact that General Statutes § 8-8 (b) mandated that the town clerk be named and served in such an appeal. In the Simko cases the town clerk was not so named. The present case is vastly different in that it is not “statutorily mandated” (emphasis added) that the applicant to the board be named or served in an appeal. See General Statutes § 8-8 (b). Therefore, dismissal of the appeal for lack of subject matter jurisdiction based on the Simko rationale was inappropriate.

Contrary to the Appellate Court, we conclude, on several grounds, that the failure to cite and serve a successful zoning board applicant does not result in a lack of subject matter jurisdiction and require dismissal of the appeal. First, we rely upon the conjunctive operation of General Statutes § 52-108 and Practice Book § 100, which prohibit the defeat of an action for nonjoinder or misjoinder of parties. These provisions are antithetical to the contention that nonjoinder of an indispensable party can result in the dismissal of an action for lack of subject matter jurisdiction, and thus its defeat. Second, if the failure to cite and serve an applicant were to constitute a jurisdictional defect, § 8-8 (d), authorizing the intervention of the applicant in the appeal, would be rendered superfluous. See Gianetti v. Norwalk Hospital, 211 Conn. 51, 60, 557 A.2d 1249 (1989). We must presume that the legislature did not enact a statute authorizing the intervention of a party in an appeal that is void for lack of subject matter jurisdiction because the intervening party was not cited and served when the appeal was commenced. Finally, we have recently held that an administrative appeal should not necessarily be dismissed for lack of an indispensable party.

In Hillcroft Partners v. Commission on Human Rights & Opportunities, 205 Conn. 324, 327, 533 A.2d 852 (1987), we held that “[t]he failure to join one who is even an indispensable party, however, does not warrant dismissal of a statutory appeal where the statute does not specify that such a person must be served.” We relied for this conclusion partly upon Practice Book § 100, providing that “no action shall be defeated by the nonjoinder . . . of parties” but that “[n]ew parties may be added and summoned in ... by order of the court, at any stage of the cause, as it deems the interests of justice require.” We also relied upon our decision in Shulman v. Zoning Board of Appeals, supra, 183-84, in which we remanded a zoning appeal for the purpose of joining as an indispensable party a successful applicant, whom the statute did not require to be served but who, nevertheless, had to be given “an opportunity to be heard.” See also Kuehne v. Town Council, supra, 462. Under these precedents, it is clear that the failure initially to join one whose presence is essential for a complete adjudication of an administrative appeal is a defect not involving subject matter jurisdiction, because it is curable at a later stage of the proceeding pursuant to Practice Book § 100. Only when the statute authorizing the appeal requires a designated person to be made a party does the failure to do so constitute noncompliance with its terms and thus involve subject matter jurisdiction. Simko I, supra, 421. The Appellate Court, therefore, erred in concluding that the failure to cite and serve Pettengill involved a lack of subject matter jurisdiction and required a dismissal of the plaintiffs’ appeal simply because Petten-gill was an indispensable party.

Ill

The plaintiffs claim that the finding that Pettengill had notice of the pendency of the appeal made it unnecessary to join him as a party because of his failure to attempt to exercise his right to intervene pursuant to § 8-8 (d) until after judgment had been rendered. Section 8-8 (d), as we have previously noted, does contemplate that the successful applicant will enter the appeal by intervention after it has been filed in court rather than by being joined as a defendant initially. Unless he is given proper notice of the appeal and thus provided with an opportunity to be heard, however, the applicant would not receive the protection of his interests intended by § 8-8 (d) and required by fundamental tenets of due process. See Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S. Ct. 652, 94 L. Ed. 865 (1950); Kron v. Thelen, 178 Conn. 189, 193, 423 A.2d 857 (1979). Without such notice the applicant’s statutory right to intervene would be of little use to him.

In a supplemental memorandum of decision explaining the denial of Pettengill’s motion to intervene, the trial court, after hearing the evidence, found that “Pet-tengill was clearly aware of the pendency of the action since at least August 8, 1985, and that he voluntarily chose not to move to intervene until after the decision of the court.” The date referred to is the date of the complaint commencing the appeal. There is no evidence that Pettengill on August 8, 1985, knew of the pen-dency of the appeal nor do the plaintiffs claim any such evidence. There was evidence, however, that Petten-gill was aware of a newspaper article containing his picture that appeared in the Greenwich Times on August 26, 1985, in which the appeal brought by the plaintiffs was discussed.

Because it is not within our province to find facts; Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 220, 435 A.2d 24 (1980); we cannot determine whether this or other evidence is sufficient to establish PettengilTs knowledge of the plaintiffs’ appeal. We can determine only that there is insufficient evidence to support the trial court’s conclusion that Pettengill waived his right to intervene based on the fact that he had knowledge of the appeal “at least [on] August 8, 1985.”

In any event, we conclude that the kind of notice of the pendency of an appeal to be derived from a newspaper article is not equivalent to the notice the legislature intended an applicant to receive so that he could exercise his right to intervene in accordance with § 8-8 (d). See Tulsa Professional Collection Services v. Pope, 485 U.S. 478, 489-90, 108 S. Ct. 1340, 99 L. Ed. 2d 565 (1988). For such notice to be adequate it must generally satisfy the requirements for ordinary civil process; General Statutes § 52-45a et seq.; and should take the form of a proper citation to appear as a party. Thus, the applicant may be given a reasonable time to appear in order to exercise his statutory right to intervene and procedures for defaulting those applicants who fail to appear after proper service may be followed in accordance with our rules of practice. See Practice Book § 351 et seq.

The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to set aside the judgment of the trial court and to remand for the purpose of allowing Pettengill to intervene and for a new trial of the appeal.

In this opinion the other justices concurred.

       The rescript of the Appellate Court was as follows: “There is error on the appeal by Charles W. Pettengill, Jr., the judgment is set aside and the case is remanded for further proceedings in accordance with this opinion; the defendant’s appeal is dismissed.” Fong v. Planning & Zoning Board of Appeals, 16 Conn. App. 604, 616, 548 A.2d 454 (1988).
      Having concluded that the trial court lacked subject matter jurisdiction of the appeal, the Appellate Court presumably intended that the “further proceedings” in the trial court would be limited to the dismissal of the appeal. We presume that the defendant’s appeal was dismissed because it would be moot if there were a lack of subject matter jurisdiction.

       General Statutes § 8-8 (a) provides: “appeal from board to court, review by appellate court, (a) Any person or persons severally or jointly aggrieved by any decision of said board, or any person owning land which abuts or is within a radius of one hundred feet of any portion of the land involved in any decision of said board, or any officer, department, board or bureau of any municipality, charged with the enforcement of any order, requirement or decision of said board, may, within fifteen days from the date when notice of such decision was published in a newspaper pursuant to the provisions of section 8-3 or 8-7, as the case may be, take an appeal to the superior court for the judicial district in which such municipality is located, which appeal shall be made returnable to said court in the same manner as that prescribed for civil actions brought to said court.”

       As authority for Ms motion to intervene, Pettengill cited General Statutes §§ 52-102, 52-103 and 52-107. Pettengill did not cite General Statutes § 8-8 (d) which expressly authorizes the intervention in an appeal from a zoning board decision by the person who applied for the board’s decision. General Statutes § 8-8 (d) provides: “The court, upon the motion of the person who applied for the board’s decision, shall make such person a party defendant in the appeal. Such defendant may, at any time after the return date of such appeal, make a motion to dismiss the appeal. At the hearing on such motion to dismiss, each appellant shall have the burden of proving Ms standing to bring the appeal. The court may, upon the record, grant or deny the motion. The court’s order on such motion shall be a final judgment for the purpose of the appeal as to each such defendant. No appeal may be taken from any such order except within seven days of the entry of such order.”

       General Statutes § 8-8 (b) provides: “Notice of such appeal shall be given by leaving a true and attested copy thereof with, or at the usual place of abode of, the chairman or clerk of said board, and by serving a true and attested copy upon the clerk of the municipality, provided service upon the clerk of the municipality shall be for the purpose of providing additional notice of such appeal to said board and shall not thereby make such clerk a necessary party to such appeal. The appeal shall state the reasons upon which it has been predicated and shall not stay proceedings upon the decision appealed from, but the court to which such appeal is returnable may, on application, on notice to the board and on cause shown, grant a restraining order.”

       General Statutes § 52-108 provides: “An action shall not be defeated by the nonjoinder or misjoinder of parties. New parties may be added and summoned in, and parties misjoined may be dropped, by order of the court, at any stage of the action, as the court deems the interests of justice require.”

       “[Practice Book] Sec. 100.—nonjoinder and misjoinder
      “Except as provided in Secs. 157 and 198 no action shall be defeated by the nonjoinder or misjoinder of parties. New parties may be added and summoned in, and parties misjoined may be dropped, by order of the court, at any stage of the cause, as it deems the interests of justice require.”

       By its terms, Practice Book § 100 is subject to the exception that an action may be defeated for nonjoinder pursuant to Practice Book § 157 if the entire complaint, counterclaim or cross complaint is stricken and the party whose pleading was stricken does not file a new one within fifteen days.


author: Covello, J.

text:
    Northeast Datacom, Inc., et al. v. City of Wallingford
    (13549)
    Shea, Callahan, Glass, Covello and Hull, Js.
    Argued June 7
    decision released August 15, 1989

      Shaun S. Sullivan, with whom was Bennett J. Bern-blum, for the appellants (plaintiffs).

      Robert K. Ciulla, with whom was Ben A. Solnit, for the appellee (defendant).

      Wesley W. Horton, DavidL. Fineberg and Kimberly A. Knox filed a brief for the Connecticut Conference of Municipalities as amicus curiae.

      Charles H. Lenore and James Sicilian filed a brief for the Connecticut Bankers Association et al. as amici curiae.

      Patrick W. Hanifan, Wayne S. Henderson and Joseph F. Brennan filed a brief for the Greater Hartford Chamber of Commerce et al. as amici curiae.
   Covello, J.

This is an appeal from a personal property tax assessment made by the city of Wallingford. The principal issue is whether computer software constitutes personal property subject to municipal taxation under General Statutes § 12-71. We conclude that such software is intangible personal property and therefore not subject to the provisions of § 12-71.

The appeal involves two categories of property that the assessor included on Wallingford’s grand list of October 1, 1986. First, the assessor listed computer software that the named plaintiff, Northeast DataCom (NEDC), had created in the course of its business for use by its clients. The assessor also imposed a penalty for NEDC’s failure to list this software. Second, the assessor listed computer hardware and related equipment owned and leased by the various plaintiffs at a value that the plaintiffs claimed was far in excess of its true and actual value. NEDC and the other plaintiffs unsuccessfully appealed the assessor’s determination to the Wallingford board of tax review (board).

On April 9,1987, the plaintiffs appealed the board’s decision to the Superior Court pursuant to General Statutes §§ 12-118,12-119 and 12-53. On February 26, 1988, the plaintiffs filed an amended complaint to add to their appeal claims for relief from the assessments on the grand list of October 1, 1987. The trial court, Hon. Joseph W. Bogdanski, state trial referee, concluded: (1) that NEDC’s computer software was tangible personal property subject to taxation; (2) that NEDC had not proved that the assessor’s valuation of its computer hardware was excessive; (3) that the plaintiffs Bank of New England, Lorac Leasing Corporation, Ford Motor Credit Company and Textron Financial Corporation were estopped from claiming that the values assigned to their computer hardware were manifestly excessive because of their failure to file the statutorily required “declarations”; and (4) that the penalties assessed against NEDC for failure to declare its software were proper. The trial court thereafter rendered judgment for the defendant. The plaintiffs then appealed to the Appellate Court. We thereafter transferred the appeal to ourselves in accordance with Practice Book § 4023.

NEDC first claims that the trial court erred in concluding that its software was tangible personal property. In this connection, the court found that the software at issue had an original cost of $2,756,740. The assessor valued this property at $2,317,183. This amount “included canned software purchased by [NEDC], software customized by outside contractors for [NEDC], and custom software developed by [NEDC] itself.” The trial court further found that the tapes and discs with the computer program instructions on them appeared tangible and could be “seen, touched and generally perceived by the senses.” The trial court also found that “[l]ike a book, a magnetic tape with a computer program encoded on it, is made up of a physical medium component and an intangible intellectual component. . . . The fact that the author’s idea exists apart from the book and is itself intangible does not lessen the book’s obvious tangibility. Similarly, a music cassette tape and a movie videotape contain an intangible intellectual component that is retained in a physical medium. A cassette tape with a Beethoven symphony recorded on it and a videotape with a movie recorded on it are not rendered intangible because they contain an ‘intellectual works product.’ ” The trial court thereafter concluded that the software was tangible personal property and, therefore, subject to taxation. We do not agree.

General Statutes § 12-71 (a) subjects to local municipal taxation “[a]ll goods, chattels and effects or any interest therein, belonging to any person who is a resident in this state . . . . ” The phrase “goods, chattels and effects or any interest therein” is not defined in the statutes. While we have not had recent occasion to construe this statute, we have held that the broad language of its predecessor “was intended to cover all classes of intangible property. The term ‘property,’ as the word is used in statutes relating to assessment and taxation, refers to every species of valuable right or interest that is subject to ownership, has an exchangeable value, or adds to one’s wealth or estate. Eric v. Walsh, 135 Conn. 85, 90, 61 A.2d 1 [1948], and cases cited; Hartford-Connecticut Trust Co. v. O’Connor, 137 Conn. 267, 272, 76 A.2d 9 [1950].” Stirling v. Connelly, 141 Conn. 483, 488, 107 A.2d 274 (1954). “The breadth and inclusive character of the list so prescribed is apparent. The General Assembly intended to include therein all types of tangible and intangible personal property.” Hartford-Connecticut Trust Co. v. O’Connor, supra, 271.

These earlier holdings would provide an immediate resolution of the present controversy were it not for the fact that in 1953 General Statutes § 1745 was repealed and republished as amended. The specific references to notes, bonds, stocks, moneys, credits and choses in action were deleted so that only “vessels . . . goods, chattels or effects, or any interest therein” remained subject to taxation. At the same time a new provision was added to that statute that dealt with property in towns having two or more taxing districts. The new language described the property mentioned above as “tangible personal property.” This coupled with the fact that there is now provision in a companion statute for the inclusion on the assessor’s list of “tangible personal property” belonging to nonresidents; see General Statutes § 12-43; and provision for the removal from the list of erroneously included “tangible personal property”; see General Statutes § 12-57; causes us to conclude that after its 1953 republication, the legislature intended that General Statutes § 12-71 was thereafter to apply only to tangible personal property.

I

In concluding that software was tangible personal property within the meaning of § 12-71, the trial court recognized that “[l]ike a book, a magnetic tape with a computer program encoded on it, is made up of a physical medium component and an intangible intellectual component.” It identified the physical component as the “magnetic tape, dis[k]ette and photographs of a disc jack[et] . . . used ... to store and transmit . . . [the] computer programs.” We conclude, however, that these physical devices are only the most tangential incidents of a computer program and the fact that tangible property is used to store or transmit the software’s binary instructions does not change the character of what is fundamentally a classic form of intellectual property.

. Software is a variety of “literary work” covered by the Copyright Act. 17 U.S.C. §§ 101, 102 (a) and 117. To be copyrightable, an “original work of authorship,” such as a program, must be “fixed in any tangible medium of expression.” 17 U.S.C. § 102 (a). Despite being so fixed, the original work of authorship is legally distinct from the medium, and from each copy of the work, including the “material object ... in which the work is first fixed.” 17 U.S.C. § 101.

The software here cost NEDC $2,756,740. The magnetic discs and tapes cost approximately $1000. Wal-lingford assessed the “property” for $2,317,183. Wallingford’s theory then is that if one has intangible personal property that is fixed, even temporarily, in a tangible medium, the municipal tax on tangible personal property is due based upon the value of the tangible medium plus the value of the intangible personal property. We do not agree.

In Columbia Pictures Industries, Inc. v. Tax Commissioner, 176 Conn. 604, 610, 410 A.2d 457 (1979), we held that the rental of a copy of a motion picture constituted the “lease of tangible personal property” within the meaning of General Statutes § 12-407 (2) and that a sales tax was due based upon the value of the lease. We hastened to point out that “[t]he production cost for the film was approximately $3,500,000 . . . . The value or cost of the actual film bears little or no relation at all to the payments contracted for pursuant to the agreement between the exhibitor and the distributor. The payments are based upon the number of persons expected to view the motion picture.” Id., 606. We thus inferentially acknowledged that there was an intangible, intellectual component in the motion picture that was not involved in the valuation of the film’s lease to a Connecticut distributor. “It is true . . . that a copyright may be an incorporeal right to publish and does exist detached from the personal property out of which it arises. 18 Am. Jur. 2d, Copyright and Literary Property § 18.” Id., 608.

When one buys a video cassette recording, a book, sheet music or a musical recording, one acquires a limited right to use and enjoy the material’s content. One does not acquire, however, all that the owner has to sell. These additional incidents of ownership include the right to produce and sell more copies, the right to change the underlying work, the right to license its use to others and the right to transfer the copyright itself. It is these incidents of the intellectual, intangible component of the software property that Wallingford has impermissibly assessed as tangible personal property by linking these incorporeal incidents with the tangible medium in which the software is stored and transmitted.

II

NEDC next claims that the trial court erred in sustaining the valuations assigned by Wallingford’s assessor to the computer hardware and related equipment owned and leased by NEDC. The assessor valued this hardware at $4,104,668. NEDC’s appraised value was $1,608,763. Examination of the record discloses that the heart of the dispute involved the length of time over which the property in question was to be depreciated. NEDC’s appraiser selected a much shorter life for the equipment than that adopted by the Wallingford assessor to the end that the equipment’s value was claimed to have significantly depreciated since its purchase. Having heard both parties, the trial court concluded that, with respect to NEDC’s claim, it “could not credit a theory that produces such results.”

“[I]n any assessment case, the trial court is confronted with conflicting accounting methods; giving credence to one over the other is a proper exercise of its function as a trier of fact. Connecticut Light & Power Co. v. Monroe, 149 Conn. 450, 455, 181 A.2d 118 [1962]; National Folding Box Co. v. New Haven, [146 Conn. 578, 586, 153 A.2d 420 (1959)]. Under the facts of this case the trier was not in error in adopting the depreciation formula used by the defendant.

“Courts must be cautious in choosing between conflicting systems since ‘those calculations, although made in the best of faith, can lead to widely divergent results. ’ Burritt Mutual Savings Bank v. New Britain, 146 Conn. 669, 674, 154 A.2d 608 [1959].” Connecticut Coke Co. v. New Haven, 169 Conn. 663, 666-68, 364 A.2d 178 (1975). Based upon these principles, we see no error in the trial court’s determination here.

Ill

The plaintiffs Bank of New England, Lorac Leasing Corporation, Ford Motor Credit Company and Textron Financial Corporation argue that the trial court erred in concluding that they were estopped from claiming that the value assigned to their computer hardware was manifestly excessive. The basis of the trial court’s estoppel ruling was its predicate finding that these plaintiffs “fail[ed] to file any declaration with Walling-ford, even after being specially sent declaration packets. The town’s assessor ultimately filled out their forms himself, based upon information provided by coplaintiff Northeast DataCom.”

These plaintiffs concede that they did not file the required declarations but contend that this fact is irrelevant as NEDC provided the assessor with a complete listing of their computer equipment along with estimates of its fair market value. Further, they argue that there was no finding of prejudice to Wallingford as the result of their failure to file the required declarations and absent such prejudice, an estoppel cannot exist. While we agree that there was no legal basis for finding an estoppel; see John F. Epina Realty, Inc. v. Space Realty, Inc., 194 Conn. 71, 85, 480 A.2d 499 (1984); we conclude that the trial court’s refusal to pursue the plaintiffs’ appeals was legally correct and therefore find no reversible error.

General Statutes § 12-114 provides: “The board of tax review shall not reduce the list of any person, or the valuation . . . of any item of property therein contained ... if he has refused or unnecessarily neglected to give in his sworn list to the assessors as prescribed by law.” Since a board of tax review is barred by this statute from reducing the valuation of any property belonging to a person who has not filed a sworn list, it follows that the customary appeal to the Superior Court authorized by General Statutes § 12-118 from the board’s failure to reduce the assessor’s valuation, is also unavailable in such circumstances. One cannot be heard to complain of the board’s failure to do what it is statutorily prohibited from doing. “It is the duty of each taxpayer, as a personal obligation, to file with the assessors a list of his taxable property and furnish the facts upon which valuations may be based. West Haven v. Aimes, 123 Conn. 543, 546, 196 A. 774 [1938]; Pitt v. Stamford, 117 Conn. 388, 393, 167 A. 919 [1933]. If he fails to do so, the assessors are only required to act upon ‘the best information [they] can obtain’; [General Statutes § 12-42]; Hartford v. Chavnpion, 54 Conn. 436, 439, 7 A. 721 [1887]; and the taxpayer cannot justly complain if the assessors, acting in good faith, make an error in judgment in listing and valuing his property. Ponemah Mills v. Lisbon, 89 Conn. 435, 438, 94 A. 919 [1915].” Cooley Chevrolet Co. v. West Haven, 146 Conn. 165, 169, 148 A.2d 327 (1959).

These plaintiffs, however, have also appealed the assessor’s valuation pursuant to General Statutes § 12-119. However, “[t]he remedy given by [§ 12-119] ... is not [an] alternative to an appeal to the board of tax review and from it to the courts under § 12-118.” Id., 166. While there is no mandatory formula for determining what is “manifestly excessive”; National Folding Box Co. v. New Haven, supra, 585; Sibley v. Middlefield, 143 Conn. 100, 105, 120 A.2d 77 (1956); Cohn v. Hartford, 130 Conn. 699, 705, 37 A.2d 237 (1944); Lomas & Nettleton Co. v. Waterbary, 122 Conn. 228, 231, 188 A. 433 (1936); it is clear that § 12-119 is not available to address simple disputes concerning valuation of personal property. Connecticut Coke Co. v. New Haven, supra. “Our statutes provide a method by which an owner of property may directly call in question the valuation placed by assessors upon his property by an appeal to the board of relief, and from it to the courts. General Statutes [§§ 12-118, 12-53] .... These statutes limit to a short period the time within which the property owner can seek relief under them and the purpose of this is undoubtedly to prevent delays in the ultimate determination of the amounts a municipality can collect as taxes. The remedy given by [§ 12-119] which may be invoked up to the expiration of one year . . . certainly could not have been intended as a remedy alternative to an appeal to the board of relief where the claim is merely that the property has been overassessed; it is rather to be regarded as a remedy to meet situations of a different character.” Cohn v. Hartford, supra, 702-703. The sole claim of these plaintiffs is that their computer hardware was overvalued. This being the case, the procedure to address that issue was by way of appeal to the board of tax review in accordance with General Statutes §§ 12-118 and 12-53. Since this was the only method to raise the issue of a simple overvaluation, the trial court correctly dismissed this portion of the appeal when it found that these plaintiffs had not filed the required valuation data with the assessor, thereby preventing the board from granting any relief.

IV

Finally, NEDC claims that Wallingford’s levy of a penalty assessment of $259,986 for NEDC’s failure to list its computer software as tangible personal property and because it allegedly understated the value of its computer hardware is without legal basis. We agree. First, there was no reason for NEDC to list its software as it was not tangible personal property. Second, there is no statutory authority for the levy of a penalty assessment for understating the value of assessable property. General Statutes § 12-42 authorizes a penalty only for failing to file a list. General Statutes § 12-53b authorizes a penalty only for property omitted from a list.

There is error in part, the judgment is set aside with respect to the assessment of NEDC’s software and the assessment of a penalty, and the case is remanded to the trial court with direction to modify the judgment to sustain NEDC’s appeal in respect to the software assessment and to vacate the order concerning interest and penalties.

In this opinion the other justices concurred.

       We define this term as any set of binary instructions, codes, programs or routines used to cause a computer to perform a specific task or function.

       General Statutes § 12-71 provides: “personal property liable to TAXATION; DESCRIPTION; SITUS; STICKER; valuation, (a) All goods, chattels and effects or any interest therein, belonging to any person who is a resident in this state, shall be listed for purposes of property tax in the town where such person resides . . . .”

       As distinguished from software, the term hardware refers to the computer itself and its allied peripheral equipment such as printers, modems, and so forth.

       General Statutes (1949 Rev.) § 1745 made taxable “[a]ll notes, bonds and stocks, not issued by the United States, moneys, credits, choses in action, vessels, except registered and enrolled sailing vessels, except barges engaged in trade between this and other states and except registered vessels which are actually engaged in foreign commerce, goods, chattels or effects, or any interest therein . . . .”

       General Statutes (1953 Sup.) c. 86, § 848 (c).

       General Statutes (1953 Sup.) c. 86, § 848 (c) provides: “The tangible personal property of any person residing within a town having two or more taxing districts shall be assessed in the district in which such . . . property shall have been located the greater portion of the tax year next preceding the day on which such property lists are required to be filed in such town.” (Emphasis added.)

       This phrase, tangible personal property, was added by amendment in 1961. Public Acts 1961, No. 24.

       In so holding we join a number of other jurisdictions that have held that computer software constitutes intangible property. See District of Columbia v. Universal Computer Associates, Inc., 465 F.2d 615 (D.C. Cir. 1972); State v. Central Compute Services, Inc., 349 So. 2d 1160 (Ala. 1977); Honeywell Information Systems, Inc. v. Maricopa County, 118 Ariz. 171, 575 P.2d 801 (1977); First National Bank of Springfield v. Department of Revenue, 85 Ill. 2d 84, 421 N.E.2d 175 (1981); Appeal of AT&T Technologies, Inc., 242 Kan. 554, 749 P.2d 1033 (1988); Matter of Protest of Strayer, 239 Kan. 136, 716 P.2d 588 (1986); CompuServe, Inc. v. Lindley, 41 Ohio App. 3d 260, 535 N.E.2d 360 (1987); Commerce Union Bank v. Tidwell, 538 S.W.2d 405 (Tenn. 1976); First National Bank of Fort Worth v. Buttock, 584 S.W.2d 548 (Tex. Civ. App. 1979); but see Measurex Systems, Inc. v. State Tax Assessor, 490 A.2d 1192 (Me. 1985); Comptroller of the Treasury v. Equitable Trust Co., 296 Md. 459, 464 A.2d 248 (1983); Hasbro Industries, Inc. v. Norberg, 487 A.2d 124 (R.I. 1985); Citizens & Southern Systems, Inc. v. South Carolina Tax Commission, 280 S.C. 138, 311 S.E.2d 717 (1984); Pennsylvania & West Virginia Supply Corporation v. Rose, 368 S.E.2d 101 (W. Va. 1988).

       This view comports with a recent enactment by the General Assembly. Public Acts 1989, No. 89-251, § 193, provides that “[personal property subject to taxation under [General Statutes § 12-71] shall not include computer software, except when the cost thereof is included, without being separately stated, in the cost of computer hardware.”

       General Statutes (Rev. to 1987) § 12-42 provides: “Each resident of any town liable to give in a list and pay taxes therein shall, except as otherwise specially provided by law, on or before the first day of November, annually, give in his list, made as prescribed by law. . . . If he fails to file such list, the assessors shall fill out a list for him, putting therein all property which they have reason to believe is owned by him, liable to taxation, at the percentage of its actual valuation, as determined by the assessors in accordance with the provisions of sections 12-64 and 12-71, from the best information they can obtain, and add thereto ten percent of such assessment.” The penalty rate in this statute was raised to twenty-five percent by Public Acts 1987, No. 87-245, §§ 2, 10.

       General Statutes § 12-118 provides: “Any person . . . claiming to be aggrieved by the action of the board of tax review in any town or city may . . . make application, in the nature of an appeal therefrom, to the superior court for the judicial district in which such town or city is situated

       General Statutes § 12-119 provides: “When it is claimed that a tax has been laid on property not taxable in the town or city in whose tax list such property was set, or that a tax laid on property was computed on an assessment which, under all the circumstances, was manifestly excessive and could not have been arrived at except by disregarding the provisions of the statutes for determining the valuation of such property, the owner thereof . . . may, in addition to the other remedies provided by law, make application for relief to the superior court . . . .”

       See footnote 10, supra.

       General Statutes § 12-53 (a) provides: “addition op omitted property to list, (a) During the period prescribed by law for the completion of their duties the assessor or board of assessors of each town shall add to the list given in by any person and made according to law any taxable property which they have reason to believe is owned by him and has been omitted from such list, and property so added shall be assessed at the percentage of the actual valuation thereof, as determined by the assessor or board of assessors in accordance with the provisions of sections 12-63,12-64 and 12-71, from the best information the assessor or board of assessors can obtain, and twenty-five per cent of such assessment shall be added thereto. The assessor or board of assessors shall notify such person, in accordance with section 12-55, of any such increase in the assessed valuation.” The penalty rate in this statute was raised from ten percent to twenty-five percent by Public Acts 1987, No. 87-245, §§ 4, 10.


author: Hull, J.

text:
    Luis Mendes v. Automobile Insurance Company of Hartford Automobile Insurance Company of Hartford v. Luis Mendes
    (13636)
    (13637)
    Peters, C. J., Shea, Glass, Covello and Hull, Js.
    Argued June 14
    decision released August 22, 1989

      Philip F. von Kuhn, with whom, on the brief, was Arnold J. Bai, for the appellant in both cases (Automobile Insurance Company of Hartford).

      Robert R. Sheldon, for the appellee in both cases (Luis Mendes).
   Hull, J.

The primary issue on these appeals is whether an automobile insurance policy provision that permits either party to the contract to demand a trial de novo when an uninsured or underinsured motorist arbitration award exceeds $20,000 is void as against public policy. We agree with the trial court’s ruling that such a provision contravenes the public policy of this state and is therefore unenforceable. Accordingly, we find no error.

The procedural and factual history of these appeals is not in dispute. On July 24,1986, the defendant, Automobile Insurance Company of Hartford, issued to Manuel Mendes an automobile insurance policy covering two vehicles owned by him. The plaintiff, Luis Mendes, was an insured under this policy. The policy provides that uninsured and underinsured motorist claims shall be resolved by arbitration. Specifically, where the amount in demand is $40,000 or less, the arbitration proceeding is to be conducted by a single arbitrator agreed upon by the insured and the defendant. Where the amount in demand is more than $40,000, the insured and the defendant are each to select an arbitrator, who are then to agree upon a third arbitrator. The policy then provides: “The decision made by the arbitrator(s) will be binding. However, either party may make a written demand for a trial if the amount of damages awarded is greater than the minimum limit for bodily injury liability specified by the financial responsibility law of the state in which your covered auto is principally garaged. If this demand is not made within 60 days of the decision of the arbitrators), the amount of damages awarded by the arbitrators) will be binding.” The minimum coverage limit for bodily injury liability in Connecticut is $20,000. See General Statutes §§ 38-175c, 14-112. Thus, the quoted policy provision (escape clause) purports to grant either party the right to demand a trial de novo where an uninsured or underinsured arbitration award exceeds $20,000.

On or about November 17, 1986, the plaintiff sustained personal injuries when, as a pedestrian, he was struck by an automobile driven by Margaret Monterosso. At the time of this accident there was $20,000 in bodily injury liability coverage on the Monterosso vehicle, which was collected from Monterosso’s insurance carrier. Thereafter, pursuant to the arbitration provision contained in the defendant’s insurance policy, the plaintiff submitted a demand for arbitration to the defendant seeking recovery of underinsured motorist benefits for injuries received in the accident. Subsequently, the plaintiff’s claim was arbitrated before a three person arbitration panel. On September 21,1988, the arbitration panel unanimously awarded the plaintiff $50,000 in underinsured motorist benefits. Relying upon the escape clause, the defendant notified the plaintiff by letter dated October 19, 1988, that it had “chosen not to be bound” by the arbitrators’ decision and that it was demanding a trial de novo.

On October 21,1988, the defendant filed in the Superior Court an application to vacate the arbitration award pursuant to General Statutes § 52-418 (a) (4). The defendant argued that because the arbitration award exceeded $20,000, it was entitled to a trial de novo under the express language of the escape clause. Pursuant to General Statutes § 52-417, the plaintiff on October 26, 1988, filed with the Superior Court an application seeking to confirm the arbitration award and requesting that an order be issued directing the defendant to pay the full amount of the award, plus interest from the date of the award. By way of a single memorandum of decision dated December 23,1988, the trial court ruled upon both applications. Relying upon cases in other jurisdictions that have addressed the validity of similar escape clauses, the trial court concluded that the provision at issue unfairly favored the defendant insurer and therefore was unenforceable as against public policy. Accordingly, the trial court granted the plaintiffs application to confirm the arbitration award and denied the defendant’s application to vacate the arbitration award. From these judgments the defendant appeals.

In reaching its conclusion that the escape clause at issue is unenforceable, the trial court relied heavily on General Statutes § 38-175c, which requires every uninsured motorist insurance policy that contains a provision for binding arbitration to include “a provision for final determination of insurance coverage in such arbitration proceeding.” The insurance policy in this case provides that the decision of the arbitrator or arbitrators “will be binding.” The statute is nonetheless not precisely on point, because it applies only to determinations of “insurance coverage,” while the underlying issue in these appeals apparently concerns the amount of damages. Undeniably, however, § 38-175e manifests a strong public policy in favor of final arbitral resolution of disputes concerning uninsured motorist insurance policies. That policy is undermined by an escape clause allowing the defendant at will to set aside arbitral awards in excess of $20,000.

The trial court found further support for its conclusion in three out-of-state cases that have held similar escape clauses invalid. See Schmidt v. Midwest Family Mutual Ins. Co., 413 N.W.2d 178 (Minn. App. 1987), aff'd en banc, 426 N.W.2d 870 (Minn. 1988); Nationwide Mutual Ins. Co. v. Marsh, 15 Ohio St. 3d 107, 472 N.E.2d 1061 (1984); Pepin v. American Universal Ins. Co., 540 A.2d 21 (R.1.1988). There appears to be little difference between the escape clauses held invalid in these cases and the escape clause at issue on this appeal. All of them purport to grant a trial de novo by request of either the insured or insurer if an uninsured or underinsured motorist arbitration award exceeds the state statutory minimum bodily injury insurance requirement, but make binding any award less than that amount.

The court in Schmidt v. Midwest Family Mutual Ins. Co., supra, 180, held such a provision invalid for the following reasons: “[The] provision . . . skews the trial de novo remedy in favor of the insurer, which is more likely to be dissatisfied with an award above $25,000 [the statutory minimum bodily injury requirement]. Conversely, the insured is more likely to be dissatisfied with an award below $25,000, which could not be tried de novo.” The Schmidt court went on to state that “[t]he trial de novo provision not only favors the insurer, in a contractual relationship which in most situations is one of unequal bargaining power and little opportunity for negotiation, but also contravenes public policies favoring arbitration and judicial economy.” Id., 181.

In Nationwide Mutual Ins. Co. v. Marsh, supra, 110, Justice Sweeney, in a concurring opinion, had the following to say with regard to the validity of a similar escape clause: “The effect of Endorsement 1604 is to create binding arbitration for awards below the $12,500/$25,000 statutory coverage minimums and to create non-binding arbitration for awards in excess of those minimums. Nationwide asserts that the foregoing arbitration agreement is entirely fair because both the insured and Nationwide have the right to avoid an arbitration award in excess of $12,500/$25,000. This ‘facial equality’ is not a true equality, however, because both parties are bound only by low awards, which are likely to be in Nationwide’s favor. High awards can be avoided by either the insured or Nationwide, but it is unlikely that an insured would ever seek to avoid a high award, even if he was unsatisfied with it, because by avoiding the award and seeking a trial the insured would incur additional legal expense while also placing at risk the entire award that he already has received. Thus, the real impact and effect of Endorsement 1604 is to give Nationwide the power to avoid high arbitration awards, regardless of whether those awards are fair and just.” Id., 111. In addition to the provision’s inherent unfairness, Justice Sweeney noted that the escape clause contravened Ohio’s strong public policy in favor of final and binding arbitration. Id. In striking down a similar escape clause as against public policy, the court in Pepin v. American Universal Ins. Co., supra, 22, stressed that such a provision circumvented “[t]he whole purpose of arbitration, namely, providing an expedient and inexpensive mechanism for finally resolving disputes . . . .”

We find the reasoning of these out-of-state cases highly persuasive. Certainly, these authorities would appear to render untenable the defendant’s position that the escape clause contained in its policy is valid and enforceable. The defendant strongly asserts, however, that the above-noted cases are not germane because the escape clauses in those cases were examined in the context of arbitration schemes fundamentally different from the one found in the defendant’s policy. Specifically, the defendant points out that the arbitration schemes discussed in those other jurisdictions provide that either party has the right to submit the dispute to arbitration. Consequently, the insurance carrier could compel any and all claimants to submit to arbitration and subject them to an escape clause that clearly favored the carrier. In contrast, the defendant notes that under the arbitration provisions contained in its policy it cannot compel a claimant, such as the plaintiff, to submit to arbitration; rather, only the claimant has the right to submit the dispute to arbitration. If a claimant chooses not to have his claim arbitrated, he may seek relief directly in the courts. This distinction is of critical importance, the defendant argues, because “although it may be unfair to allow an insurer to force an insured to go through the time and expense of arbitration while retaining the right to render the results a nullity [pursuant to an escape clause], the same rationale does not apply when the option of going to arbitration rests entirely with the insured.” We are not persuaded.

We agree with the defendant that its inability to compel the plaintiff to submit to arbitration is a factor that was not present in the arbitration schemes discussed in the cases cited above. We disagree, however, that this distinguishing feature ameliorates the unfairness of the escape clause to such a- degree that it may be permitted to stand. We acknowledge that many claimants may take advantage of the right provided them in the defendant’s policy to avoid arbitration altogether. Our concern, however, is focused not on those claimants sagacious enough to exercise that right, but on the individuals who unwittingly submit to arbitration under the good faith belief that any award will be final and binding. We make this statement fully aware of the fact that most claimants choosing arbitration are doing so on the advice of counsel who are presumed to know the risks involved in an arbitration proceeding featuring an escape clause like the one at issue. Nevertheless, we are mindful of the fact that arbitration is a process open to laymen not represented by counsel, and it is from the vantage point of such laymen that we must judge the fairness of the defendant’s arbitration scheme in general and the escape clause in particular.

The arbitration section of the defendant’s policy states that “the covered person may make a written demand for arbitration within 2 years of the date of accident.” Thereafter, the pertinent language of the escape clause provides that “[tjhe decision made by the arbitrator(s) will be binding.” In typical boilerplate fashion characteristic of insurance policies, the escape clause then states that either party may demand a trial “if the amount of the damages awarded is greater than the minimum limit for bodily injury liability specified by the financial responsibility law of the state in which your covered auto is principally garaged.” In our view it is wishful thinking on the part of the defendant to believe that a layman of average intelligence is adequately put on notice by such language that arbitration awards in excess of $20,000 are nonbinding. The net effect of this lack of notice is that the unwary claimant is lured into an arbitration process favored by our legislature as a swift, fair and inexpensive means for final settlement of his claim, only to find out after the fact that, pursuant to an escape clause, his award in excess of $20,000 is nonbinding and that the defendant may demand a trial de novo.

We see little difference between the scenario just described and the cases discussed above in which the insurance carrier compels a claimant to submit to arbitration. In each case, the claimant is subjected unfairly to an arbitration process rendered inequitable by the presence of an escape clause. In sum, we find without merit the defendant’s contention that any unfairness created by the presence of an escape clause in its arbitration scheme is remedied by the right provided a claimant under its policy to avoid arbitration altogether. Because the language of the defendant’s policy does not adequately apprise all potential claimants of the true nature of the escape clause and its effect on arbitration awards in excess of $20,000, the protection offered a claimant by the right to avoid arbitration is largely illusory.

We also note that in addition to the creation of the manifest inequities described previously, an escape clause like the one at issue may be used as leverage by an insurance carrier to coerce a claimant who has received an arbitration award in excess of $20,000 to accept a settlement or compromise less than the amount awarded upon the threat of a demand for a trial de novo. This state has evinced a strong public policy against such unfair claim settlement practices with the enactment of General Statutes § 38-61 (6) (k).

For the foregoing reasons, we conclude that the escape clause contained in the defendant’s insurance policy is unenforceable as against public policy. Accordingly, the trial court acted correctly in granting the plaintiff’s application to confirm the arbitration award and in denying the defendant’s application to vacate the arbitration award.

There is no error.

In this opinion the other justices concurred.

       We recognize that Automobile Insurance Company of Hartford is the plaintiff on one appeal and the defendant on the other. For purposes of convenience, Automobile Insurance Company of Hartford will be referred to throughout the opinion as the defendant.

       The defendant’s insurance policy provided underinsured motorist coverage in the amount of $100,000.

       “[General Statutes] Sec. 52-418. vacating award, (a) Upon the application of any party to an arbitration, the superior court for the judicial district in which one of the parties resides or, in a controversy concerning land, for the judicial district in which the land is situated or, when the court is not in session, any judge thereof, shall make an order vacating the award if it finds any of the following defects ... (4) if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.”

       “[General Statutes] Sec. 52-417. APPLICATION FOR ORDER CONFIRMING AWARD. At any time within one year after an award has been rendered and the parties to the arbitration notified thereof, any party to the arbitration may make application to the superior court for the judicial district in which one of the parties resides or, in a controversy concerning land, for the judicial district in which the land is situated or, when the court is not in session, to any judge thereof, for an order confirming the award. The court or judge shall grant such an order confirming the award unless the award is vacated, modified or corrected as prescribed in sections 52-418 and 52-419.”

       General Statutes § 38-61 (6) (k) provides: “Unfair claim settlement practices. Committing or performing with such frequency as to indicate a general business practice any of the following . . . (k) making known to insureds or claimants a policy of appealing from arbitration awards in favor of insureds or claimants for the purpose of compelling them to accept settlements or compromises less than the amount awarded in arbitration.”

       On appeal, the defendant for the first time argues that if this court should conclude that the escape clause contained in its policy is unenforceable as against public policy, the entire arbitration section should be stricken, thus rendering the plaintiffs arbitration award a nullity. Since the claim that the escape clause is not severable from the balance of the arbitration section was not raised by the defendant below, we decline to address it. See Practice Book § 4185.