text:
    Sandra L. Kilduff et al. v. Adams, Inc., et al.
    (14182)
    Peters, C. J., Shea, Callahan, Glass and Borden, Js.

      Argued February 21
    decision released June 18, 1991

      Edward T. Lynch, Jr., with whom, on the brief, was Suzann L. Beckett, for the appellants (defendants).

      Timothy Sheehan, for the appellees (plaintiffs).
   Callahan, J.

The plaintiffs, Sandra L. Kilduff and her husband, David J. Kilduff, Sr., brought this action against the defendants seeking damages for fraud and unjust enrichment. The defendants are Adams, Inc., a Connecticut corporation, and Bernard F. Adams and his wife, Violet Adams, both of whom are officers of Adams, Inc. The action arose out of fraudulent misrepresentations allegedly made by the Adamses that enabled the corporate defendant to take title to the plaintiffs’ house pursuant to foreclosure proceedings, thereby forcing the Kilduffs and their three children from their home. The trial court, Maloney, J., granted the defendants’ motion to strike the unjust enrichment count but denied the motion as to the fraud count. The jury answered special interrogatories and returned a verdict in favor of the three plaintiffs for economic damages in the amount of $45,000. The jury also awarded Sandra Kilduff damages in the amount of $5000 for emotional distress and awarded Sandra and David Kilduff punitive damages in the amount of $16,000. The trial court, D. Dorsey, J., denied the defendants’ motion to set aside the verdict and their motion for remittitur. The defendants filed an appeal in the Appellate Court, and we transferred the matter to this court pursuant to Practice Book § 4023. We now affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In 1983, the plaintiffs began falling behind in the payments on the mortgage of their home in Berlin when the Social Security Administration terminated the disability income benefits received by David Kilduff for a back injury that prevented him from working. While his appeal of that termination was pending, Connecticut Housing Finance Authority (CHFA), the mortgagee, brought a foreclosure action against the plaintiffs and five other parties who held liens on the plaintiffs’ property. One of the lienholders was Adams, Inc., which had operated a store under the name of House of Adams and had sold furniture to the plaintiffs on credit several years earlier. The amount of the judgment lien held by Adams, Inc., was $1012.62. On November 26, 1984, a judgment of strict foreclosure was rendered for CHFA, and the court set September 3,1985, as the law day for the plaintiffs in order to give them a significant period of time within which to resolve the Social Security appeal. The law days for the five lienholders were set for the following week, with the final law day of September 10, 1985, assigned to Adams, Inc.

Prior to September 3, 1985, the Social Security Administration reinstated David Kilduff’s disability income benefits and agreed to pay retroactive benefits for the period when those benefits had been terminated. By the end of August, 1985, the plaintiffs had received approximately $9000 in retroactive benefits, and Sandra Kilduff reported this fact to the attorney who represented them in the foreclosure action, so that he could take the steps necessary to avoid foreclosure. Their attorney failed, however, to take any action to open the foreclosure judgment in order to extend the plaintiffs’ law day of September 3, 1985. After learning on September 4 or 5 that Adams, Inc., intended to redeem, the attorney advised Sandra Kilduff to “bundle up” her family and go see Bernard Adams to explain her family’s plight and to request that he not take their home.

On September 6, the plaintiffs and two of their children went to the Adamses’ home and asked Bernard Adams if he was going to take their house. Bernard Adams said that he only wanted the money he was owed, not their house. When Sandra Kilduff offered to pay him the outstanding debt with the Social Security checks she had brought, Bernard Adams refused the payment, explaining that he wanted to contact his attorney to learn the exact amount due. Neither of the Adamses mentioned that on the two days prior to the plaintiffs’ visit, Bernard Adams had inspected the Kilduff home three times and that earlier in the day on September 6 he had delivered a check to his attorney to effect the redemption of the plaintiffs’ home.

On the weekend of September 7 and 8, 1985, Sandra Kilduff called the Adamses’ home several times and was told by the defendants that she would be informed on September 9 of the amount due Adams, Inc. The defendants never informed the plaintiffs of this amount. On September 10, Adams, Inc., obtained title to the Kilduff home by paying $49,410.34 to CHFA and receiving a satisfaction of judgment. The Kilduff family was forced to leave their home at the beginning of October, 1985. Approximately four months later, Adams, Inc., sold the house for $100,000.

In 1986, the plaintiffs filed for bankruptcy. The following year the plaintiffs brought an action against their former attorney for negligence, breach of contract and fraud. The damages sought in that suit were the same as those sought in the fraud count brought in the present case, with the exception that the Kilduff children were also named as plaintiffs in the former suit and sought damages for emotional distress resulting from the attorney’s alleged negligence. The plaintiffs received $125,000 when this suit was settled prior to trial.

In this appeal, the defendants challenge the trial court’s denial of their motion to set aside the verdict and their motion for remittitur on numerous grounds, and also assert that several aspects of the court’s charge to the jury were incorrect. In addition, the defendants contend that the admission of a psychiatric report concerning Sandra Kilduff was improper. We reject each of these claims.

I

The defendants claim that the trial court should have set aside the verdict because the plaintiffs had no interest in their home after their law day passed on September 3, 1985, and, therefore, that they could have suffered no legally cognizable injury from the misrepresentations that subsequently were made on September 6, 1985. We disagree.

The dispositive issue in determining if the plaintiffs were in fact injured by the defendants’ conduct is whether the plaintiffs lost a viable opportunity to retain their interest in their home that they otherwise would have pursued had the misrepresentations not been made. To make that determination, a brief review of the relevant facts is necessary. Sandra Kilduff told her attorney that Bernard Adams had said that he did not intend to take their home. The attorney testified that, if he had known that Adams, Inc., intended to redeem, he would have pursued one or both of the following options: (1) filing a bankruptcy petition; or (2) filing a motion to extend the law day prior to September 10, 1985, and, if that motion had been denied, filing an ' appeal of the denial. A loan manager for CHFA testified that, given the significant amount of equity that the plaintiffs had in their home, CHFA would have given consideration to reinstating the plaintiffs’ mortgage even after the passing of their law day on September 3, 1985. Finally, Sandra Kilduff testified that she had contacted all of the other lienholders to explain the plaintiffs’ predicament and stated that each of these parties had agreed not to redeem the property and had agreed to make arrangements for a payment schedule. In fact, none of those parties exercised their redemption rights on their respective law days.

If the plaintiffs had filed a bankruptcy petition prior to the redemption by Adams, Inc., an automatic stay would have been imposed that would have barred temporarily any further proceedings in the foreclosure action, including the defendants’ redemption. 11 U.S.C. § 362 (a). If the plaintiffs had filed a motion to extend their law day pursuant to General Statutes § 49-15 and that motion had been granted, the plaintiffs then would have had an opportunity to make arrangements for the payment of the lienholders and an opportunity to arrange with CHFA to reinstate the mortgage.

In summary, there is sufficient evidence in the record to demonstrate that the plaintiffs would have been able to retain their interest in their home had they pursued one or both of the procedures indicated. If either of these courses of action had been pursued successfully, Adams, Inc., would not have been able to obtain absolute title to the property on September 10, 1985. Because the plaintiffs did not pursue the options available to protect their ownership rights as a result of the Adamses’ misrepresentations, we reject the defendants’ claim that the plaintiffs suffered no injury as a matter of law.

II

The defendants also assert that the plaintiffs are barred from seeking damages in an action at law for their misrepresentations because the plaintiffs did not pursue the following alternative remedies: (1) filing an action in equity to obtain relief from the operation of the foreclosure judgment after title became absolute in the defendants; see Crane v. Loomis, 128 Conn. 697, 700, 25 A.2d 650 (1942); Hoey v. Investors’ Mortgage & Guaranty Co., 118 Conn. 226, 230, 171 A. 438 (1934); Merry-Go-Round Enterprises, Inc. v. Molnar, 10 Conn. App. 160, 162 n.1, 521 A.2d 1065 (1987); or (2) seeking to have the bankruptcy trustee void the transfer of title to their home to Adams, Inc., on the grounds that the transfer was a fraudulent conveyance. We need not speculate on the likelihood of success of such alternative remedies because the defendants are unable to cite any authority, and our research has revealed none, to support their claim that the plaintiffs were required to exhaust those remedies before they were entitled to sue for damages in an action at law. In fact, the general rule is that a defrauded party has the right to choose between the legal and equitable remedies available. Barnes v. Eastern & Western Lumber Co., 205 Or. 553, 593, 287 P.2d 929 (1955); Horner v. Ahern, 207 Va. 860, 867, 153 S.E.2d 216 (1967); 37 Am. Jur. 2d, Fraud and Deceit § 327.

The defendants also appear to claim that because the plaintiffs did not bring this action until approximately two years after Adams, Inc., obtained title, they were prohibited from bringing a claim for damages. We reject this argument as being wholly unsupported. The defendants do not contend that this action was barred by any statute of limitations, and we find no support for a laches defense. See Papcun v. Papcun, 181 Conn. 618, 620, 436 A.2d 282 (1980).

Ill

The defendants next claim that the trial court should not have allowed the jury to consider awarding Sandra Kilduff damages for emotional distress because such damages are not available in a fraud action. We disagree.

A plaintiff in a fraud action is entitled to recover “any consequential damages resulting directly from the fraud.” Crowther v. Guidone, 183 Conn. 464, 469, 441 A.2d 11 (1981); Miller v. Appleby, 183 Conn. 51, 57, 438 A.2d 811 (1981). “ ‘The damages to be recovered in an action of this character are such as are the natural and proximate consequence of the fraudulent representation complained of; and those results are proximate which must be presumed to have been within the contemplation of the defendant as the probable consequence of his fraudulent representations.’ Kornblau v. McDermant, 90 Conn. 624, 632, 98 A. 587 (1916).” Miller v. Appleby, supra, 58. The issue, therefore, is whether damages for emotional distress can ever constitute consequential damages recoverable in a fraud action.

Although several courts have denied recovery for mental distress in a fraud action on the ground that damages in such an action are solely intended to compensate the plaintiff for pecuniary loss; see, e.g., Moore v. Slonim, 426 F. Sup. 524, 527 (D. Conn.), aff'd, 562 F.2d 38 (2d Cir. 1977), citing 37 C.J.S., Fraud § 141 (f), p. 469; Ellis v. Crockett, 51 Haw. 45, 52, 451 P.2d 814 (1969); Jourdain v. Dineen, 527 A.2d 1304, 1307 (Me. 1987); Harsche v. Czyz, 157 Neb. 699, 710-11, 61 N.W.2d 265 (1953); see 3 Restatement (Second), Torts § 525; we concur with those jurisdictions that allow the recovery of emotional damages that are the natural and proximate result of fraud. See Holcombe v. Whitaker, 294 Ala. 430, 433-34, 318 So. 2d 289 (1975); Rosener v. Sears, Roebuck & Co., 110 Cal. App. 3d 740, 755, 168 Cal. Rptr. 237 (1980), appeal dismissed, 450 U.S. 1051, 101 S. Ct. 1772, 68 L. Ed. 2d 247 (1981); Trimble v. Denver, 697 P.2d 716, 730 (Colo. 1985); Food Fair, Inc. v. Anderson, 382 So. 2d 150, 154-55 (Fla. App. 1980); Captain & Co. v. Stenberg, 505 N.E.2d 88, 100 (Ind. App. 1987); Ditcharo v. Stepanek, 538 So. 2d 309, 314 (La. App.), cert. denied, 541 So. 2d 858 (La. 1989); Crowley v. Global Realty, Inc., 124 N.H. 814, 818-19, 474 A.2d 1056 (1984); McRae v. Bolstad, 32 Wash. App. 173, 178-79, 646 P.2d 771 (1982), aff’d, 101 Wash. 2d 161, 676 P.2d 496 (1984); see generally A. Merritt, “Damages for Emotional Distress in Fraud Litigation: Dignitary Torts in a Commercial Society,” 42 Vand. L. Rev. 1, 3-6 (1989).

This conclusion is consistent with our decisions allowing the recovery of damages for emotional harm in other contexts. See Ford v. Blue Cross & Blue Shield of Connecticut, Inc., 216 Conn. 40, 62-63, 578 A.2d 1054 (1990) (action brought pursuant to General Statutes § 31-290a [b]); Buckman v. People Express, Inc., 205 Conn. 166, 173-74, 530 A.2d 596 (1987) (allowing a claim for emotional distress arising from the defendant’s failure to enable the plaintiff to continue insurance coverage); Morris v. Hartford Courant Co., 200 Conn. 676, 681-82, 513 A.2d 66 (1986) (cause of action for infliction of emotional distress could be based on unreasonable conduct of employer in discharging employee); Montinieri v. Southern New England Telephone Co., 175 Conn. 337, 345, 398 A.2d 1180 (1978).

In Montinieri v. Southern New England Telephone Co., supra, we held that a plaintiff may recover for unintentional infliction of emotional distress even if the distress does not result in subsequent bodily injury and the plaintiff was not at risk of harm from physical impact. We limited such recovery, however, to cases where “the defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress and that that distress, if it were caused, might result in illness or bodily harm.” Id.; see also Buckman v. People Express, Inc., supra, 173; Morris v. Hartford Courant Co., supra, 683. We conclude that the same standard should apply to plaintiffs seeking damages for unintentionally-caused emotional distress resulting from fraud. See Goldberg v. Mallinckrodt, Inc., 792 F.2d 305, 309-10 (2d Cir. 1986) (applying the test under New York law for recovery of damages for the tort of unintentional infliction of emotional distress to an emotional damages claim in a fraud action).

The trial court properly instructed the jury that, in order to award damages for emotional distress, it had to find that the Adamses’ misrepresentations were the proximate cause of the emotional distress suffered by Sandra Kilduff. The court also properly instructed the jury that the type of harm suffered must have been a reasonably foreseeable consequence of the defendants’ actions. We conclude, therefore, that the damages award for emotional distress suffered by Sandra Kilduff should not be set aside. We note, however, that such damages must be specially pleaded and are only recoverable when “the defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress and that that distress, if it were caused, might result in illness or bodily harm.” Montinieri v. Southern New England Telephone Co., supra, 345.

IV

In its charge to the jury concerning the burden of proof, the trial court stated that the plaintiffs had the burden of proving fraud, and that each of the elements of fraud except damages must be proven by clear and satisfactory, or clear, precise and unequivocal, evidence. The court further instructed the jury, however, that the plaintiffs had to prove their damages by a fair preponderance of the evidence. The defendants objected to this charge on the ground that the “clear and satisfactory,” or “clear, precise and unequivocal” standard of proof applies to all the elements of fraud, including damages. They assert that the delivery of this instruction requires that the verdict be set aside. We disagree.

It is well established that common law fraud must be proven by a higher standard than a fair preponderance of the evidence. This middle tier standard has been described as “clear and satisfactory evidence” and as “clear, precise and unequivocal evidence.” Verrastro v. Middlesex Ins. Co., 207 Conn. 179, 181, 540 A.2d 693 (1988); Aksomitas v. Aksomitas, 205 Conn. 93, 100, 529 A.2d 1314 (1987); J. Frederick Scholes Agency v. Mitchell, 191 Conn. 353, 358, 464 A.2d 795 (1983); Alaimo v. Royer, 188 Conn. 36, 39, 448 A.2d 207 (1982). It is also settled law that “ ‘[t]he essential elements of an action in fraud . . . are: (1) that a false representation was made as a statement of fact; (2) that it was untrue and known to be untrue by the party making it; (3) that it was made to induce the other party to act on it; and (4) that the latter did so act on it to his injury. Paiva v. Vanech Heights Construction Co., 159 Conn. 512, 515, 271 A.2d 69 (1970); Clark v. Haggard, 141 Conn. 668, [673,] 109 A.2d 358 (1954); Helming v. Kashak, 122 Conn. 641, 642, 191 A. 525 (1937); Bradley v. Oviatt, 86 Conn. 63, 67, 84 A. 321 (1912); Barnes v. Starr, 64 Conn. 136, 150, 28 A. 980 (1894).’ Miller v. Appleby, [supra, 54-55].” Maturo v. Gerard, 196 Conn. 584, 587, 494 A.2d 1199 (1985); D. Wright & J. Fitzgerald, Connecticut Law of Torts (2d Ed.) § 135.

The plaintiff in an action at law for fraud must prove that he has been injured in order to recover. Beik v. Thorsen, 169 Conn. 593, 594, 363 A.2d 1030 (1975); Helming v. Kashak, 122 Conn. 641, 643, 191 A. 525 (1937); Macri v. Torello, 105 Conn. 631, 633, 136 A. 479 (1927). A plaintiff who has not suffered damage or injury cannot pursue an action at law or in equity for nominal damages resulting from fraudulent actions. Beik v. Thorsen, supra, 594-95. It is clear that proof of damages is an essential element of a fraud action. The issue, therefore, is whether the plaintiff must prove damages by the “clear and satisfactory” standard or the “preponderance of the evidence” standard.

Although numerous courts have stated that a heightened burden of proof applies to all the elements of the cause of action for fraud, including damages; see, e.g., Fruit Industries Research Foundation v. National Cash Register Co., 406 F.2d 546, 548 (9th Cir. 1969) (Washington law); Davis v. Upton, 250 S.C. 288, 290-91,157 S.E.2d 567 (1967); see generally 37 Am. Jur. 2d, Fraud and Deceit § 480; we are aware of only one court that has addressed specifically whether it is appropriate to apply a higher burden of proof on damages to a plaintiff in a fraud action than that usually applicable in civil actions. See Dizick v. Umpqua Community College, 287 Or. 303, 599 P.2d 444 (1979). In Dizick, the Supreme Court of Oregon concluded that if a jury finds that a defendant made a fraudulent representation, “there is no reason why the burden of proof of damages in fraud should be different from proof of damages caused by any other tort.” Id., 311. We agree with the Dizick court, and we conclude, therefore, that the trial court properly instructed the jury that the plaintiffs were required to prove their damages by a preponderance of the evidence and to prove all the other elements of fraud by clear and satisfactory evidence.

V

The defendants make several claims concerning the propriety of allowing the corporate veil of Adams, Inc., to be pierced and the trial court’s instructions to the jury concerning this issue. The court specifically instructed the jury that the Adamses could be found personally liable if the facts of this case warranted piercing the corporate veil. The responses to the special interrogatories indicate that the jury concluded that the corporate veil should be pierced, and it subsequently imposed personal liability on both of the individual defendants. We need not address these claims, however, because we conclude that it was unnecessary to pierce the corporate veil in order to find that the Adamses were personally liable for their misrepresentations.

Both the Adamses were officers of Adams, Inc., and Bernard Adams was the sole shareholder. It is black letter law that an officer of a corporation who commits a tort is personally liable to the victim regardless of whether the corporation itself is liable. Donsco, Inc. v. Casper Corporation, 587 F.2d 602, 606 (3d Cir. 1978); Scribner v. O’Brien, Inc., 169 Conn. 389, 404, 363 A.2d 160 (1975); First National Bank & Trust Co. v. Manning, 116 Conn. 335, 340, 164 A. 881 (1933); Semple v. Morganstem, 97 Conn. 402, 404, 116 A. 906 (1922); H. Henn & J. Alexander, Laws of Corporations (3d Ed. 1983) § 230; 19 Am. Jur. 2d, Corporations § 1882. The same rule would impose personal liability on a shareholder as well. Wyatt v. Union Mortgage Co., 24 Cal. 3d 773, 785, 598 P.2d 45, 157 Cal. Rptr. 392 (1979); 13A W. Fletcher, Cyclopedia of the Law of Private Corporations (Perm. Ed. 1985) § 6214. The trial court properly instructed the jury on this alternative basis for finding the Adamses personally liable, and the jury’s responses to the interrogatories indicated that it concluded that the Adamses had made .fraudulent misrepresentations. Therefore, Bernard and Violet Adams were personally liable for their participation in the fraud, regardless of whether the corporate veil should have been pierced.

VI

The defendants next assert that the trial court’s denial of their motion for remittitur failed to take into account the fact that the plaintiffs received $125,000 from the attorney who represented them during the foreclosure proceedings, in settlement of the action they had filed against him for negligence, breach of contract and fraud. The defendants contend that a plaintiff in a fraud action cannot recover for damages for which compensation has already been received, and that the effect of the denial of their motion for remittitur was to allow such a double recovery. Although we agree with the legal principles upon which the defendants rely, we are not persuaded that they are controlling under the particular circumstances of this case.

As a general rule, the plaintiff in a fraud action is not entitled to recover damages to the extent that compensation has already been received for the same loss. Toho Bussan Kaisha, Ltd. v. American President Lines, Ltd., 265 F.2d 418, 420 (2d Cir. 1959) (applying New York law); Central National Chicago Corporation v. Lumbermens Mutual Casualty Co., 45 Ill. App. 3d 401, 408, 359 N.E.2d 797 (1977). The general rule against double recovery of damages arising from fraud is consistent with this court’s adherence to the “time-honored maxim that ‘ “[a] plaintiff may be compensated only once for his just damages for the same injury.” ’ Virgo v. Lyons, 209 Conn. 497, 509, 551 A.2d 1243 (1988), quoting Gionfriddo v. Gartenhaus Cafe, [15 Conn. App. 392, 406, 546 A.2d 284 (1988)]; see also Peck v. Jacquemin, 196 Conn. 53, 70 n.19, 491 A.2d 1043 (1985) (‘an injured party is entitled to full recovery only once for the harm suffered’).” Gionfriddo v. Gartenhaus Cafe, 211 Conn. 67, 71, 557 A.2d 540 (1989). “ ‘A payment by any person made in compensation of a claim for a harm for which others are liable as tortfeasors diminishes the claim against the tortfeasors, at least to the extent of the payment made, whether or not the person making the payment is liable to the injured person and whether or not it is so agreed at the time of payment or the payment is made before or after judgment.’ ” Id., 72 n.6, quoting 4 Restatement (Second), Torts § 885 (3).

The general rule that the plaintiff in a fraud action cannot recover for losses that have been reimbursed does not end our inquiry, however. In Champagne v. Raybestos-Manhattan, Inc., 212 Conn. 509, 537, 562 A.2d 1100 (1989), we affirmed the denial of a motion for remittitur in circumstances similar to those in this case because there was no evidence in the record concerning the allocation of the prior settlement between the two counts of the complaint and we therefore could not determine whether the damages were excessive as a matter of law. The record in the present case suffers from a similar deficiency. There is no evidence in the record concerning the allocation of the settlement among the plaintiffs’ claims for economic, emotional and punitive damages.

Further, we have no means for determining that allocation, knowledge of which is necessary to determine whether the verdicts were in fact excessive. “[I]t is not our function to speculate on that ‘allocation.’ This reason alone is sufficient basis for us to let stand the trial court’s decision . . . on its denial of the defendants’] claim on excessiveness and a remittitur . . . .’’Id., 537.

VII

The defendants also claim that the trial court should not have admitted into evidence a copy of a psychiatric report concerning Sandra Kilduff prepared by Eugene F. Lawlor, M.D., a psychiatrist whom she had consulted in 1987 and 1988. The plaintiffs introduced this report in support of Sandra Kilduff’s claim for emotional distress resulting from the loss of her home. The defendants challenge the admission of this document on two grounds: (1) the trial court improperly relied on General Statutes § 52-174 (b) in admitting the document; and (2) the report did not establish a causal connection based on reasonable medical certainty between the emotional distress suffered by the plaintiff and the actions of the defendant. We conclude that the report was properly admitted.

The defendants contend that a psychiatric report is not admissible under the terms of § 52-174 (b). That section provides that “[i]n all actions for the recovery of damages for personal injuries or death . . . any party offering in evidence a signed report . . . of any treating physician . . . may have the report . . . admitted into evidence as a business entry . . . .” (Emphasis added.) The defendants argued at trial that § 52-174 (b) was not applicable because a psychiatrist is not a “physician” and because the term “personal injuries” was not intended to include emotional distress. We disagree.

“ ‘If the words of a statute are clear, the duty of a reviewing court is to apply the legislature’s directive since where the wording is plain, courts will not speculate as to any supposed intention because the question before a court then is not what the legislature actually intended, but what intention it expressed by the words that it used. P. X. Restaurant, Inc. v. Windsor, 189 Conn. 153, 159, 454 A.2d 1258 (1983); Verrastro v. Sivertsen, 188 Conn. 213, 220, 448 A.2d 1344 (1982); Robinson v. Unemployment Security Board of Review, 181 Conn. 1, 6, 434 A.2d 293 (1980).’ Duguay v. Hopkins, 191 Conn. 222, 228, 464 A.2d 45 (1983).” Strucman v. Burns, 205 Conn. 542, 545-46, 534 A.2d 888 (1987). “In the construction of the statutes, words and phrases shall be construed according to the commonly approved usage of the language . . . General Statutes § 1-1 (a). “In the absence of ambiguity, statutory language should be given its plain and ordinary meaning.” Pintavalle v. Valkanos, 216 Conn. 412, 416-17, 581 A.2d 1050 (1990).

Applying these rules of statutory construction, we conclude that the report of a psychiatrist is admissible under § 52-174 (b). A “physician” is defined as “a person skilled in the art of healing: one duly authorized to treat disease: a doctor of medicine . . . .” Webster’s Third New International Dictionary; see also Black’s Law Dictionary (5th Ed.). A “psychiatrist” is defined as “a physician specializing in psychiatry.” (Emphasis added.) Webster’s Third New International Dictionary; see also General Statutes §§ 17a-580 (12) and 52-146d (7). It cannot be disputed that psychiatrists are doctors of medicine and that they are licensed to practice that discipline, and we therefore conclude that psychiatrists are subsumed in the term “physician” in § 52-174 (b).

The defendants’ argument that emotional distress is not a “personal injury” as that term is used in § 52-174 (b) ignores the plain meaning of that term as well. A “personal injury” is defined as “an injury affecting one’s physical and mental person as contrasted with one causing damage to one’s property.” Webster’s Third New International Dictionary. Numerous jurisdictions have held that emotional distress or mental anguish is a type of “personal injury.” E.g., Ex Parte First Alabama Bank of Montgomery, N.A., 461 So. 2d 1315, 1318 (Ala. 1984); Bates v. Superior Court, Maricopa County, 156 Ariz. 46, 49, 749 P.2d 1367 (1988); Blanchette v. Contributory Retirement Appeal Board, 20 Mass. App. 479, 482, 481 N.E.2d 216 (1985); McCroskey v. Cass County, 303 N.W.2d 330, 336 (N.D. 1981); see Izzo v. Colonial Penn Ins. Co., 203 Conn. 305, 313, 524 A.2d 641 (1987) (term “personal injury” in insurance policy is broader than the term “bodily injury”). On the basis of the plain meaning of the terms employed in § 52-174 (b), we conclude that Lawlor’s report was properly admitted under that statute.

The defendants’ second claim concerning the psychiatric report is meritless. In Struckman v. Burns, supra, 554-55, we stated that “[ejxpert opinions must be based upon reasonable probabilities rather than mere speculation or conjecture if they are to be admissible in establishing causation. . . . Whether an expert’s testimony is expressed in terms of a reasonable probability that an event has occurred does not depend upon the semantics of the expert or his use of any particular term or phrase, but rather, is determined by looking at the entire substance of the expert’s testimony. . . . When reports are the substitute for testimony, the entire report should be examined, not only certain phrases or words.” We have reviewed the report in question and conclude that it satisfies the standard outlined in Struckman v. Burns, supra.

We have examined the remaining claims made by the defendants and conclude that they do not warrant significant attention because they were either inadequately briefed, duplicative or lacked merit.

The judgment is affirmed.

In this opinion the other justices concurred.

       Thomas Germain, the trustee in bankruptcy for Sandra and David Kilduff, Sr., is also a plaintiff in this action. For the purposes of this opinion, the term “plaintiffs” will be used to refer to Sandra and David Kilduff, Sr.

       The House of Adams ceased operations in 1983, but Adams, Inc., has maintained its corporate existence.

       Violet Adams was also present for at least part of the time while her husband was talking to Sandra Kilduff. According to Sandra Kilduff, Violet Adams told the Kilduffs, “we’re not taking your house, we have a beautiful house of our own.”

       Violet Adams accompanied her husband on one of the trips to inspect the Kilduff home.

       The defendants allege that the trial court improperly denied the motion to set aside the verdict because: (1) they did not make any false representations and, even if they did, the plaintiffs did not rely on those representations; (2) the plaintiffs suffered no legal injury as a result of the alleged fraud because their law day had already passed when the representations were made; (3) the court should not have allowed the jury to consider the issue of damages because the plaintiffs did not bring an action in equity to protect their interests; (4) the court should not have allowed the jury to consider awarding economic, emotional or punitive damages; (5) the plaintiffs failed to utilize procedures available to them during the bankruptcy proceedings which might have mitigated their damages; and (6) the court should not have allowed the jury to determine whether Adams, Inc., was a “sham” corporation so as to allow the piercing of the corporate veil.
      With respect to the denial of their motion for remittitur, the defendants argue that the $125,000 settlement that the plaintiffs received from their former attorney constitutes recovery for the same injuries alleged in the present case and that the trial court should have used this amount to offset the economic and emotional damages awarded by the jury.
      The defendants also challenged the following aspects of the trial court’s instructions to the jury: (1) the burden of proof in a fraud action; (2) the effect of a tender of payment; (3) the circumstances under which the corporate veil can be pierced; (4) the inclusion of instructions on the concept of “acting in concert” in response to the jury’s question concerning agency; and (5) the court’s failure to use the charge requested by the defendants concerning legal injury.
      We note that several of these claims are absolutely without merit, inadequately briefed or redundant. We have recently noted with respect to a similar manner of appellate advocacy that “[a] shotgun approach does a disservice both to this court and to the party on whose behalf it is presented.” Latham & Associates, Inc. v. William Raveis Real Estate, Inc., 218 Conn. 297, 800, 589 A.2d 337 (1991).

       “[General Statutes] Sec. 49-15. OPENING OF JUDGMENTS OF FORECLOSURE. Any judgment foreclosing the title to real estate by strict foreclosure may, at the discretion of the court rendering the same, upon the written motion of any person having an interest therein, and for cause shown, be opened and modified, notwithstanding the limitation imposed by section 52-212a, upon such terms as to costs as the court deems reasonable; but no such judgment shall be opened after the title has become absolute in any encumbrancer.”

       The defendants also argue that the plaintiffs did not prove a legal injury because they presented no evidence concerning the disposition of the claim of a third party not named as a defendant in the foreclosure action who may have had a lien of some type against the Kilduff home. Because that party was not named in the original foreclosure action, the potential existence of such a lien has no bearing on whether the plaintiffs proved that they lost a legitimate opportunity to protect their property rights.

       The defendants assert that the plaintiffs also could have moved to open the foreclosure judgment at any time prior to September 10,1985, when title became absolute in Adams, Inc. We have noted, however, that the plaintiffs’ failure to follow this course of action was a result both of their attorney’s failure to pursue this option and of the misrepresentations made by the Adamses, and does not serve to prohibit the plaintiffs from seeking damages.

       The record indicates that Adams, Inc., sold the Kilduff home to a third party shortly after it obtained title to the property. The plaintiffs’ ability to restore their interest in their home may therefore have been foreclosed by the existence of a bona fide purchaser.

       The defendants’ claim that the evidence was insufficient to allow the jury to consider awarding punitive damages is meritless. See Gargano v. Heyman, 203 Conn. 616, 622, 525 A.2d 1343 (1987).

       The plaintiffs did not claim that the defendants intended to cause them emotional distress. See Morris v. Hartford Courant Co., 200 Conn. 676, 681 n.3, 513 A.2d 66 (1986).

       Although the complaint also sought damages for mental distress suffered by David Kilduff, the plaintiffs presented no evidence in support of this claim and the trial court instructed the jury to consider only the emotional distress claim of Sandra Kilduff.

       The complaint clearly states the plaintiffs’ claim for damages for emotional distress. Although neither the complaint nor the trial court’s instructions to the jury made any reference to the foreseeability test set forth in Montinieri v. Southern New England Telephone Co., 175 Conn. 337, 345, 398 A.2d 1180 (1978), which we conclude should apply to claims for emotional distress in fraud actions as well, we do not consider this omission material under the circumstances of this case. In Buckman v. People Express, Inc., 205 Conn. 166, 173-74, 530 A.2d 596 (1987), this court disregarded similar omissions because the appeal was not before the court pursuant to a motion to strike, the defendant had not objected to the court’s charge on those grounds and the defendant could not claim that it was not fairly apprised of the claim for emotional damages. Because these same circumstances exist in the present case, we conclude that the jury’s award of damages for emotional distress should not be set aside.

       The following reasons are commonly cited as justification for requiring a more exacting burden of proof in fraud actions: (1) fraud usually must be proven through the use of circumstantial evidence so that a heightened standard is imposed to reflect the latitude allowed in admitting evidence of fraud; Disner v. Westinghouse Electric Corporation, 726 F.2d 1106, 1110 (6th Cir. 1984); Smith v. Rhode Island Co., 39 R.I. 146, 154, 98 A. 1 (1916); 37 Am. Jur. 2d, Fraud and Deceit § 468, p. 646; 37 C.J.S., Fraud § 114, p. 431; (2) evidence of fraud must be sufficient to overcome the presumption that people are innocent of moral turpitude or crime; Verrastro v. Middlesex Ins. Co., 207 Conn. 179, 183, 540 A.2d 693 (1988); Apolito v. Johnson, 3 Ariz. App. 232, 236, 413 P.2d 291, modified on other grounds, 3 Ariz. App. 358, 414 P.2d 442 (1966); 37 C.J.S., Fraud § 114, p. 430; (3) in equity cases, a higher burden of proof is imposed to justify the availability of broader remedies than those available in an action at law for damages; Batka v. Liberty Mutual Fire Ins. Co., 704 F.2d 684, 688 (3d Cir. 1983) (applying New Jersey law); C. McCormick, Evidence (3d Ed.) § 340; and (4) a person found guilty of fraudulent conduct suffers a “stigma of guilt” regardless of whether the underlying action was civil or criminal. Riley Hill General Contractor, Inc. v. Tandy Corporation, 303 Or. 390, 407, 737 P.2d 595 (1987).
      A review of the case law on the development of the burden of proof in fraud actions sheds no light on which, if any, of these factors were determinative in this court’s adoption of the “clear, precise and unequivocal” standard. In Basak v. Damutz, 105 Conn. 378, 382-83, 135 A. 453 (1926), we applied the “clear, precise and unequivocal” standard to the plaintiff’s claim that the defendant was equitably estopped from denying ownership of certain land on the ground that the defendant was party to a fraudulent conveyance. That standard was applied for the first time to an action at law for damages resulting from fraud in Shaub v. Phillips, Inc., 117 Conn. 54, 58, 166 A. 671 (1933), citing Basak v. Damutz, supra, 382. Shaub implicitly overruled prior case law in which we had indicated that fraud need be proven only by a preponderance of the evidence. Daly Bros., Inc. v. Spallone, 114 Conn. 236, 240-43,158 A. 237 (1932); see Bennett v. Gibbons, 55 Conn. 450, 454, 12 A. 99 (1887); cf. Water Commissioners v. Robbins, 82 Conn. 623, 640, 74 A. 938 (1910) (fraud must be proven by “clear, strong, natural, and logical” evidence, but the fact that fraud is not to be presumed does not add to the plaintiffs burden of proof). The Shaub court, however, gave no explanation of why it was imposing the higher standard. Shaub v. Phillips, Inc., supra.
      It does not appear that any of the four reasons noted above provide a clear explanation for our imposition of a higher burden of proof. We had recognized the latitude allowed in the admission of evidence of fraudulent conduct long before we imposed a higher burden of proof in fraud actions. See, e.g., Robert v. Finberg, 85 Conn. 557, 562, 84 A. 366 (1912); Hoxie v. Home Ins. Co., 32 Conn. 21, 37 (1864). Similarly, our recognition of the role played by circumstantial evidence in proving fraud predates our decision in Shaub v. Phillips, Inc., supra. See, e.g., Sallies v. Johnson, 85 Conn. 77, 80-81, 81 A. 974 (1911).
      We have also rejected the suggestion that proof of criminal activity in a civil action requires a more stringent quantum of proof. Verrastro v. Middlesex Ins. Co., supra, 183, citing Mead v. Husted, 52 Conn. 53 (1884), and Munson v. Atwood, 30 Conn. 102 (1861). Similarly, we have stated that the fact that fraud is not to be presumed does not serve to increase the burden of proof otherwise applicable to a plaintiff in a fraud action. O’Dea v. Amodeo, 118 Conn. 58, 60, 170 A. 486 (1934); Water Commissioners v. Robbins, supra. Moreover, this rule was part of our law while the preponderance of the evidence standard was still the burden of proof in fraud actions. See Morford v. Peck, 46 Conn. 380, 384-85 (1878); Huntington v. Clark, 39 Conn. 540, 557 (1873).
      The third rationale for imposing a higher burden of proof for fraud was clearly not relevant in the development of our case law. Ever since the “clear, precise and unequivocal standard” was first applied to an action at law for fraud in Shaub v. Phillips, Inc., supra, we have required a higher burden in legal as well as equitable actions. See, e.g., Miller v. Appleby, 183 Conn. 51, 55, 438 A.2d 811 (1981); DeLuca v. C. W. Blakeslee & Sons, Inc., 174 Conn. 535,-546, 391 A.2d 170 (1978); Creelman v. Rogowski, 152 Conn. 382, 384, 207 A.2d 272 (1965). Finally, although we have never discussed the stigma attached to allegations of fraud, it is not clear whether this rationale is distinct from the previously noted presumption that one is innocent of criminal or morally base acts.
      Although the rationale for our imposition of a higher burden of proof for fraud claims is shrouded in the mist of the common law, we do not find it necessary in deciding this case to articulate our rationale for continuing to apply an elevated standard or to address whether we should abandon that standard.

       We have held that a misrepresentation made without belief in its truth or recklessly made can also provide the basis for a fraud claim. Clark v. Haggard, 141 Conn. 668, 673, 109 A.2d 358 (1954).

       To the extent that Meader v. Trout Brook Ice & Feed Co., 96 Conn. 454, 462-64, 114 A. 668 (1921), held that nominal damages are recoverable in an action for fraud, that case was implicitly overruled by Beik v. Thor-sen, 169 Conn. 593, 594-95, 363 A.2d 1030 (1975).

       We do not perceive a great risk of confusing jurors by instructing them to apply different standards of proof to different elements of a fraud claim. Such instructions should be no more difficult to comprehend than instructions concerning the burden of proof in other types of cases. For example, in a criminal action where the defendant relies on both an affirmative defense and a defense that is not considered to be an affirmative defense, jurors are instructed that the defendant must prove the affirmative defense by a preponderance of the evidence while the state must disprove the other defenses beyond a reasonable doubt. General Statutes § 53a-12. Furthermore, in civil actions involving an issue of mitigation of damages, jurors are instructed that the plaintiff bears the burden of proving damages, but the defendant bears the burden of proof on the issue of mitigation. Preston v. Keith, 217 Conn. 12, 21-22, 584 A.2d 439 (1991).

       See footnote 5, supra.

       The jury’s responses to the special interrogatories included the following:
      “7. Was Mr. Adams acting as an agent for Adams, Inc. at the time of his alleged discussion with Mrs. Kilduff? Yes.
      “7a. Was Mrs. Adams acting as an agent for Adams, Inc. at the time of her alleged discussion with Mrs. Kilduff? Yes.

      “8. Was Adams, Inc. a corporation in existence as a sham or for fraudulent or illegal purposes? Yes.”

       Under the doctrine of respondeat superior, the liability of a corporation for the actions of an officer depends upon whether the officer is acting within the scope of his authority. Donsco, Inc. v. Casper Corporation, 587 F.2d 602, 606 (3d Cir. 1978); H. Henn & J. Alexander, Laws of Corporations (3d Ed. 1983) § 230. The defendants do not challenge the jury’s findings that the Adamses were acting as agents for Adams, Inc., when the misrepresentations were made. Furthermore, the corporation clearly ratified the actions of the Adamses when it obtained title to the Kilduff home pursuant to the foreclosure proceedings. Therefore, Adams, Inc., was properly found liable for the acts of its agents.

       The defendants attempted to introduce the amount of the settlement into evidence, but the trial court, relying upon General Statutes § 52-216a, denied this request. The court did allow the defendants to introduce into evidence a copy of the complaint filed against the plaintiffs’ former attorney, after redacting the portions of the complaint that had been struck. The court also allowed the defendants to refer to the complaint during their cross-examination of the attorney. The defendants do not challenge the trial court’s conclusion that § 52-216a barred the admission of the settlement amount into evidence, and therefore we express no opinion on that issue.

       It is unnecessary for us to determine whether the plaintiffs’ former attorney and the defendants were successive or joint tortfeasors. The general rule against double recovery applies in either instance. See Gionfriddo v. Gartenhaus Cafe, 211 Conn. 67, 70, 557 A.2d 540 (1989) (joint tortfeasors); Fieser v. St. Francis Hospital & School of Nursing, Inc., 212 Kan. 35, 40-41, 510 P.2d 145 (1973) (successive tortfeasors); Harris v. Grizzle, 599 P.2d 580, 585-86 (Wyo. 1979) (successive tortfeasors); 4 Restatement (Second), Torts § 885 (3), comment f; see generally annot., 39 A.L.R.3d 260, § 3.

       The damages sought in the action against the plaintiffs’ former attorney were substantially the same as those sought in the present case with the exception that the plaintiffs’ three children, who are not parties to the present action, sought damages for emotional distress in the prior suit. Although that portion of the complaint against the attorney had been stricken prior to settlement, the plaintiffs had intended to appeal that decision before the case was settled. We have no way of determining what portion of the settlement, if any, related to the children’s claim for emotional distress.

       Our review of this issue is further hampered by the fact that the defendants failed to file a motion for articulation in order to request that the trial court explain the basis for its denial of the motion for remittitur. See Double I Limited Partnership v. Plan & Zoning Commission, 218 Conn. 65, 84 n.19, 588 A.2d 624 (1991).

       The defendants also contend that the trial court should not have admitted the curriculum vitae of Lawlor. Because they offer no distinct basis for their objection to the admission of this document, we do not address this claim.

       General Statutes § 52-174 provides in pertinent part: “(b) In all actions for the recovery of damages for personal injuries or death, pending on October 1,1977, or brought thereafter, any party offering in evidence a signed report and bill for treatment of any treating physician, dentist, chiropractor, osteopath, natureopath or podiatrist may have the report and bill admitted into evidence as a business entry and it shall be presumed that the signature on the report is that of the treating physician, dentist, chiropractor, osteopath, natureopath or podiatrist and that the report and bill were made in the ordinary course of business. The use of any such report or bill in lieu of the testimony of such treating physician, dentist, chiropractor, osteopath, natureopath or podiatrist shall not give rise to any adverse inference concerning the testimony or lack of testimony of such treating physician, dentist, chiropractor, osteopath, natureopath or podiatrist.”


source: Caselaw Access Project

author: Callahan, J.

license: Public Domain

text:
    Zelia S. Rego v. Connecticut Insurance Placement Facility
    (14133)
    Peters, C. J., Shea, Callahan, Glass and Covello, Js.
    Argued April 25
    decision released June 18, 1991

      Stephen E. Goldman, with whom was Linda L. Morkan, for the appellant (defendant).

      Joseph A. Mengacci, for the appellee (plaintiff).
   Callahan, J.

The principal issue in this appeal is whether an insurer who pleads concealment or misrepresentation as a special defense in an action to recover on a fire insurance policy is required to prove that defense by clear and convincing evidence or by a preponderance of the evidence. We conclude that the preponderance of the evidence standard is the appropriate burden of proof.

The plaintiff, Zelia S. Rego, was the owner of two adjacent multi-family houses in Waterbury that were insured against fire loss under policies issued by the defendant, the Connecticut Insurance Placement Facility. After both of the dwellings were damaged by fire during the early morning hours of July 15, 1984, and the defendant subsequently denied coverage, the plaintiff filed a two count complaint to recover under the policies. Each count represented a claim for one of the dwellings. The defendant alleged in its answer that the plaintiff was not entitled to recover because: (1) the fire was set by or with the assistance of the plaintiff; and (2) the plaintiff “intentionally concealed and misrepresented material facts and circumstances relating to the fire at issue, including, but not limited to, her knowledge of the cause and origin of the fire.” The jury returned a verdict for the plaintiff. The defendant filed an appeal in the Appellate Court, which affirmed the judgment of the trial court. Rego v. Connecticut Insurance Placement Facility, 22 Conn. App. 428, 577 A.2d 1105 (1990). We granted certification, limited to the following issues: “(1) Was the Appellate Court correct in determining that an insurer’s special defense of material misrepresentation must by proven by clear and convincing evidence? (2) Was the Appellate Court correct in determining that the trial court’s limiting instruction to the jury to consider only misrepresentations ‘related to the cause and origin of the fire’ as proof of the special defense, thereby excluding certain evidence, was not likely to have misled the jury.” Rego v. Connecticut Insurance Placement Facility, 216 Conn. 824, 582 A.2d 204 (1990). We now reverse.

The circumstances surrounding the cause and origin of the fire were disputed at trial. The plaintiff testified that at the time the fire began she and Eliud Rivera, with whom she was living at the time and whom she subsequently married, were asleep in a bedroom on the third floor of one of the two buildings. Rivera testified that after being awakened by an explosion, he went into the hallway outside the bedroom to investigate. While there he was struck by what he described as an explosion of flames and liquid that burned his body. He then ran back into the bedroom and rolled on the bed to extinguish the flames. The plaintiff and Rivera both testified that they then went out through a bedroom window onto the roof and were subsequently rescued by fire fighters. In addition to stating that she did not know how the fire had begun, the plaintiff maintained that there had been no gasoline or kerosene in her home at the time of the fire, but that there had been some paint and paint thinner in the hallway.

The defendant presented evidence that shortly after the fire Rivera had said that an unidentified man had poured gasoline on him when he went out into the hallway. On cross-examination, however, Rivera admitted that it was not possible that anyone had been in the house at the time of the fire except the plaintiff and him. Martin Egan, a Waterbury detective, testified that he arrived at the scene while the fire was still in progress and that there had been a strong smell of gasoline in the building that the plaintiff and Rivera had occupied. He also stated that he had found containers in their apartment that held a liquid that looked and smelled like gasoline. Robert Dee, an insurance investigator called by the defendant, testified that it was his conclusion that the fire had been set intentionally and that it had been started in the kitchen through the use of a flammable liquid, most likely gasoline. The defendant also presented evidence that empty containers found at the scene of the fire had contained gasoline and that liquid found in another container was in fact gasoline.

I

The defendant contends that the trial court improperly rejected its request for an instruction to the jury that the defendant had to prove its special defense of concealment or misrepresentation by a preponderance of the evidence. We agree.

It is not disputed that a claim of common law fraud must be proven by a higher burden of proof than the preponderance of the evidence standard. We have described this standard alternatively as “clear and satisfactory” evidence, or “clear, precise and unequivocal” evidence. Kilduff v. Adams, Inc., 219 Conn. 314, 327-28, 593 A.2d 478 (1991). In Verrastro v. Middlesex Ins. Co., 207 Conn. 179, 181-83, 540 A.2d 693 (1988), we adopted the majority rule that an insurer who pleads the special defense of arson in an action to recover fire insurance proceeds must prove that defense only by a preponderance of the evidence. We noted in Verrastro that other jurisdictions that apply the clear and convincing standard to proof of fraud in a civil action have adopted the preponderance of the evidence standard for the defense of arson. Id., 182. Contrary to the position of the plaintiff, in Verrastro v. Middlesex Ins. Co., supra, we did not decide what standard of proof is applicable to an insurer’s defense of concealment or misrepresentation in a claim for coverage under an insurance contract. To the extent that we suggested that the clear and convincing standard should be applied to that defense, it was dictum. We now interpret our reference in Verrastro to the elevated burden of proof required for proof of fraud in a civil action as applying solely to claims of common law fraud, the elements of which are distinct from an insurer’s defense of concealment or misrepresentation. Compare Davis-Scofield Co. v. Reliance Ins. Co., 109 Conn. 686, 689-90, 145 A. 42 (1929) (elements of concealment or misrepresentation defense), and Kilduff v. Adams, Inc., supra (elements of common law fraud).

The plaintiff contends that the clear and convincing standard charged by the trial court is the correct burden of proof because the defendant’s allegation of concealment or misrepresentation is tantamount to a claim of common law fraud. The defendant, on the other hand, argues that in light of the fact that the special defenses of arson and concealment or misrepresentation are usually raised together, it would be illogical and impractical to apply different standards to the two defenses. The defendant also contends that a claim that an insured has concealed or misrepresented material facts concerning a claim for coverage is distinct from a claim of common law fraud and, therefore, the clear and convincing standard should not be applied to that defense. We agree.

The majority of courts that have addressed this issue have concluded that the preponderance of the evidence standard is the appropriate burden of proof to apply to an insurer’s defense that a policy is void because the insured has concealed or misrepresented material facts concerning a claim for coverage. The leading commentators take the same position. 22A J. & J. Appleman, Insurance (1979) § 14062, p. 132; 7 G. Couch, Insurance (2d Ed. 1961) § 35:117, p. 136. In addition, we are aware of no jurisdictions that have ruled that the preponderance of the evidence standard applies to an arson defense while a higher burden of proof applies to a defense of concealment or misrepresentation. Furthermore, several jurisdictions that, like Connecticut, apply an elevated standard to claims of common law fraud apply the preponderance of the evidence standard to an insurer’s defense of concealment or misrepresentation. Riley Hill General Contractor, Inc. v. Tandy Corporation, 303 Or. 390, 407, 737 P.2d 595 (1987), citing Mutual of Enumclaw Ins. Co. v. McBride, 295 Or. 398, 667 P.2d 494 (1983); St. Paul Mercury Ins. Co. v. Salovich, 41 Wash. App. 652, 655-58, 705 P.2d 812, review denied, 104 Wash. 2d 1029 (1985); see Pacheco v. Safeco Ins. Co. of America, 116 Idaho 794, 800-801, 780 P.2d 116 (1989); Italian Fisherman v. Commercial Union Assurance Co., 215 N.J. Super. 278, 281-82, 521 A.2d 912, cert. denied, 107 N.J. 152, 527 A.2d 211 (1987).

We note that, as in the present case, insurers commonly raise the special defenses of arson and concealment or misrepresentation in tandem. See, e.g., Verrastro v. Middlesex Ins. Co., supra, 180; Dairy Queen of Fairbanks, Inc. v. Travelers Indemnity Co., 748 P.2d 1169, 1170 (Alaska 1988); St. Paul Mercury Ins. Co. v. Salovich, supra. The reason that these two defenses are often raised together is obvious. If an insurer believes that the insured intentionally set fire to property covered under a fire policy, the insurer is equally likely to suspect that the insured is concealing or misrepresenting facts concerning the fire. In St. Paul Mercury Ins. Co. v. Salovich, supra, 658, the court observed that it would create an “illogical and impractical inconsistency” to impose two different standards of proof in cases where the insurer raises the special defenses of arson and material misrepresentation in the same lawsuit. Accord Hendrix v. Insurance Co. of North America, 675 S.W.2d 476, 480-81 (Tenn. App. 1984). We agree that there is no practical reason to apply two different burdens of proof to the defenses of arson and concealment or misrepresentation raised as defenses to recovery for the same fire.

Our conclusion is supported by the distinction between the elements of common law fraud and the elements of an insurer’s defense of concealment or misrepresentation. An insurer who raises this special defense must prove only that the insured wilfully concealed or misrepresented a material fact with the intention of deceiving the insurer. Chauser v. Niagara Fire Ins. Co., 123 Conn. 413, 423, 196 A. 137 (1937). Unlike a party asserting a cause of action for common law fraud, an insurer who raises the special defense of concealment or misrepresentation does not have to prove that the insurer actually relied on the concealment or misrepresentation or that the insurer suffered injury. Davis-Scofield Co. v. Reliance Ins. Co., supra, 690; Mutual of Enumclaw Ins. Co. v. McBride, supra, 403-404; St. Paul Mercury Ins. Co. v. Salovich, supra, 656. Finally, we note that in the case of an insurance contract, the consequence of the alleged concealment or misrepresentation is the forfeiture of a contractual benefit, and therefore the burden of proof normally applicable to contractual claims, the preponderance of the evidence standard, should control. Mutual of Enumclaw Ins. Co. v. McBride, supra, 407; see Dairy Queen of Fairbanks, Inc. v. Travelers Indemnity Co., supra, 1171-72; Pacheco v. Safeco Ins. Co. of America, supra, 800. We therefore disagree with the plaintiffs contention that common law fraud and an insurer’s defense of concealment or misrepresentation are sufficiently similar to warrant applying an elevated burden of proof to the latter.

The plaintiff next claims that even if the trial court improperly instructed the jury on the required burden of proof for the defense of concealment or misrepresentation, the error was harmless and a new trial is not necessary because the court properly charged the jury that the preponderance of the evidence standard applied to the arson defense and the jury found that the defendant had not satisfied its lesser burden of proof as to the arson. The defendant contends, however, that its two defenses are not so inextricably intertwined that the decision on one should control the other. Specifically, the defendant argues that the error was harmful because the jury reasonably could have concluded that the plaintiff did not know, before and possibly even after the fire, of Rivera’s plans for arson, but that she did make material misrepresentations concerning Rivera’s whereabouts at the time the fire started or about the presence of gasoline in the apartment. In addition, the defendant contends that the jury reasonably could have found that the plaintiff did not make any material misrepresentations concerning the cause of the fire but that she did conceal material facts concerning her ownership interest in the property or her financial status at the time of the fire.

The relationship between arson and misrepresentation on the record in this case is a close question. We conclude that although the jury did not find that the defendant had proven its special defense of arson by a preponderance of the evidence, the jury reasonably could have found that the defense of concealment or misrepresentation had been proven by a preponderance of the evidence if the jury had been charged properly on the burden of proof for that defense.

Because a new trial is necessary, we will consider the second issue certified since it may arise on the retrial.

II

The defendant claims that the trial court’s instruction to the jury that it should consider the misrepresentations “relating to the cause or origin of the fire” improperly restricted the jury’s consideration of whether the plaintiff concealed or misrepresented facts concerning the whereabouts of Rivera at the time the fire started, the plaintiff’s ownership interest in the property and her financial situation. The defendant also argues that the jury was entitled to consider misrepresentations allegedly made by the plaintiff at any time after the fire loss, including her testimony at trial, but was prevented from doing so by the trial court’s instructions.

It is well established that the pleadings of the parties frame the issues before the trial court. Doublewal Corporation v. Toffolon, 195 Conn. 384, 390, 488 A.2d 444 (1985), citing 1 E. Stephenson, Connecticut Civil Procedure (2d Ed. 1970) § 75. In its first special defense to each count of the complaint, the defendant alleged that “[t]he plaintiff intentionally concealed and misrepresented material facts and circumstances relating to the fire at issue, including, but not limited to, her knowledge of the cause and origin of the fire.” The language of the special defense clearly indicates that the defendant should not be limited to presenting evidence of concealment or misrepresentations that concerned only the cause and origin of the fire. We disagree, however, with the defendant’s contention that it is entitled to rely on alleged misrepresentations made by the plaintiff during the trial in proving its special defense.

In support of its claim that misrepresentations made by an insured at trial can be used by an insurer to deny coverage, the defendant relies primarily on Lomartira v. American Automobile Ins. Co., 245 F. Sup. 124 (D. Conn. 1965), aff'd, 371 F.2d 550 (2d Cir. 1967). In that case, the United States Court of Appeals for the Second Circuit upheld the trial court’s conclusion that misrepresentations at trial could be used by an insurer to avoid coverage under § 38a-307 (then General Statutes § 38-98). Id., 371 F.2d 553-54. The Second Circuit, however, specifically noted that the majority rule is that concealment or misrepresentation committed after an insured brings an action to enforce coverage does not void the policy. Id., 553. In addition, the Second Circuit placed considerable reliance on the fact that the district court opinion was issued by a judge sitting in this state, whose decision on a question of Connecticut law would not be reversed unless it was clearly wrong. Id., 554. We need not defer to the Second Circuit’s decision, however, and we conclude that the majority rule is the better view.

In American Paint Service v. Home Ins. Co. of New York, 246 F.2d 91 (3d Cir. 1957), the court provided a thorough statement of the rationale underlying the majority rule. “The fraud and false swearing clause is one beneficial to the insurer and it reasonably extends to protect the insurer during the period of settlement or adjustment of the claim. When settlement fails and suit is filed, the parties no longer deal on the non-adversary level required by the fraud and false swearing clause. If the insurer denies liability and compels the insured to bring suit, the rights of the parties are fixed as of that time for it is assumed that the insurer, in good faith, then has sound reasons based upon the terms of the policy for denying the claim of the insured. To permit the insurer to await the testimony at trial to create a further ground for escape from its contractual obligation is inconsistent with the function the trial normally serves. It is at the trial that the insurer must display, not manufacture, its case. Certainly the courts do not condone perjury by an insured, and appropriate criminal action against such a perjurer is always available.” Id., 94 (applying New Jersey law); accord Insurance Cos. v. Weides, 81 U.S. (14 Wall.) 375, 382-83, 20 L. Ed. 894 (1872); Royal Ins. Co. v. Story, 34 Ala. App. 363, 367-68, 40 So. 2d 719, cert. denied, 252 Ala. 275, 40 So. 2d 724 (1949); Ichthys, Inc. v. Guarantee Ins. Co., 249 Cal. App. 2d 555, 557-59, 57 Cal. Rptr. 734 (1967); Tarzian v. West Bend Mutual Fire Ins. Co., 74 Ill. App. 2d 314, 321-22, 221 N.E.2d 293 (1966); Home Ins. Co. v. Cohen, 357 S.W.2d 674, 676-77 (Ky. 1962); see Foreign Credit Corporation v. Aetna Casualty & Surety Co., 276 F. Sup. 791, 793-94 (S.D.N.Y. 1967) (New York law); 14 G. Couch, Insurance (2d Ed. 1961) § 49:555; see generally annot., 64 A.L.R.2d 962.

We conclude, therefore, that during the retrial the defendant is entitled to introduce evidence that the plaintiff concealed or misrepresented material facts concerning matters other than the cause and origin of the fire. The defendant, however, cannot rely on any alleged misrepresentations made after it denied coverage.

The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to remand the case to the trial court for a new trial.

In this opinion the other justices concurred.

       The defendant asserted that by concealing and misrepresenting material facts the plaintiff had violated the following provision of the fire insurance policies it had issued: “Concealment or fraud. We do not provide coverage if [the insured] ha[s] intentionally concealed or misrepresented any material fact or circumstance relating to this insurance.”
      That provision of the policy was based on the following clause from the standard fire policy set forth in General Statutes § 38a-307 (formerly General Statutes § 38-98): “Concealment, fraud. This entire policy shall be void if, whether before or after a loss, the insured has wilfully concealed or misrepresented any material fact or circumstance concerning this insurance or the subject thereof, or the interest of the insured therein, or in case of any fraud or false swearing by the insured relating thereto.”

       In addition, the plaintiff’s ex-husband stated that about one week after the fire the plaintiff had told him that the fire started when someone threw gasoline and fire on Rivera when he answered a knock on the apartment door.

       The investigator also concluded that although the cause of the fire was arson, the actual ignition of the fire occurred accidentally.

       The plaintiff presented evidence that the gasoline found at the scene contained low-level hydrocarbons that would only be found in gasoline that had not been subjected to the high temperatures accompanying a fire. The plaintiff relied on this evidence in arguing that the gasoline found by investigators had been placed there after the fire.

       In Kilduff v. Adams, Inc., 219 Conn. 314, 330, 593 A.2d 478 (1991), we held that a plaintiff in a fraud action must prove damages by a preponderance of the evidence but must prove all the other elements of common law fraud by “clear and satisfactory” evidence.

       See, e.g., Palace Entertainment, Inc. v. Bituminous Casualty Corporation, 793 F.2d 842, 843-46 (7th Cir. 1986) (Indiana law); Transportation

        Ins. Co. v. Hamilton, 316 F.2d 294, 296 (10th Cir. 1963) (Oklahoma law); Dairy Queen of Fairbanks, Inc. v. Travelers Indemnity Co., 748 P.2d 1169, 1170-72 (Alaska 1988); Pacheco v. Safeco Ins. Co. of America, 116 Idaho 794, 800-801, 780 P.2d 116 (1989); Bloomgren v. Fire Ins. Exchange, 162 Ill. App. 3d 594, 600, 517 N.E.2d 290 (1987); Summer v. Stark County Patrons’Mutual Ins. Co., 63 Ohio App. 369, 373, 26 N.E.2d 1021 (1940); Mutual of Enumclaw Ins. Co. v. McBride, 295 Or. 398, 667 P.2d 494 (1983); Hendrix v. Insurance Co. of North America, 675 S.W.2d 476, 480-81 (Tenn. App. 1984); St. Paul Mercury Ins. Co. v. Salovich, 41 Wash. App. 652, 655-58, 705 P.2d 812, review denied, 104 Wash. 2d 1029 (1985).

       We also note that when the predecessor of General Statutes § 38a-307 was enacted in 1893, it included a provision concerning concealment or misrepresentation substantially the same as that contained in § 38a-307. See Public Acts 1893, c. CCXXVI, § 7. Although the case law is not entirely clear, it appears that when the original version of § 38a-307 was enacted, common law fraud had to be proven only by a preponderance of the evidence. See Kilduff v. Adams, Inc., 219 Conn. 314, 327-28, 593 A.2d 478 (1991).

       In claiming that the defendant should be limited to presenting evidence concerning the alleged misrepresentation or concealment of facts related to the cause and origin of the fire, the plaintiff also relies upon the defendant’s response to one of its interrogatories. Specifically, in response to a question asking for a statement of how the plaintiff intentionally concealed or misrepresented any material facts concerning the fire loss claim, the defendant stated that in certain oral and written statements made subsequent to the fire, the “plaintiff repeatedly stated that she did not know how the fire began, and intentionally concealed and misrepresented her knowledge of the cause of the fire, her knowledge of the presence of gasoline in her apartment and her knowledge of what Eliud Rivera had said to her.”
      Although we have held that ordinarily a response to a discovery interrogatory is not a judicial admission and is not conclusive on the party making it; Piantedosi v. Floridia, 186 Conn. 275, 278, 440 A.2d 977 (1982); Howat v. Passaretti, 11 Conn. App. 518, 525, 528 A.2d 834 (1987); we note that some courts have relied on a party’s answers to interrogatories in limiting that party’s proof on the ground that the opposing party was prejudiced by an omission in the answer. See annot., 86 A.L.R.3d 1089, and cases cited therein. Because the plaintiff is now aware that the defendant intends to offer proof concerning facts allegedly concealed or misrepresented that do not relate to the cause or origin of the fire, she cannot claim at the retrial that the interrogatory response in question has prejudiced her.


author: Borden, J.

text:
    James Caserta v. Zoning Board of Appeals of the City of Milford et al.
    (14134)
    Peters, C. J., Shea, Glass, Covello and Borden, Js.
    Argued March 20
    decision released June 18, 1991

      Bruce L. Levin, for the appellant (named defendant).

      Benson A. Snaider, for the appellees (plaintiff).
   Borden, J.

The dispositive issue in this appeal is whether the defendant, the zoning board of appeals of the city of Milford (board), had subject matter jurisdiction to hear the appeal of the plaintiff, James Caserta, from a revocation by the zoning enforcement officer of a zoning permit previously issued to the plaintiff by that officer. We conclude that it did.

The plaintiff had been issued a zoning permit by the zoning enforcement officer, Peter Crabtree. The permit was subsequently revoked by Crabtree on order of the then chairman of the planning and zoning board, Angelo Marino. The plaintiff appealed that revocation to the board, which denied the appeal and upheld the revocation. The plaintiff appealed the decision of the board to the Superior Court, which sustained his appeal. Upon certification, the board appealed to the Appellate Court, claiming, inter alia, that the trial court had applied an improper scope of review to the board’s decision reviewing the zoning enforcement officer’s revocation of the permit. The Appellate Court held that the board lacked subject matter jurisdiction to uphold the revocation of the permit, and that it was therefore unnecessary to decide the issue of the board’s scope of review. Accordingly, the Appellate Court affirmed the judgment of the trial court. Caserta v. Zoning Board of Appeals, 23 Conn. App. 232, 580 A.2d 528 (1990).

We granted certification to appeal limited to the following issue: “Was the Appellate Court correct in holding that the zoning board of appeals lacked jurisdiction and that it was unnecessary to decide the board’s scope of review?” Casería v. Zoning Board of Appeals, 216 Conn. 826, 582 A.2d 203 (1990). We now answer this question in the negative and reverse the judgment of the Appellate Court.

Certain facts are undisputed. The plaintiff owns a three-story building located in an “R-5” residential zone in Milford. In such a zone, a rooming house is a permitted special use requiring a special permit and site approval by the planning and zoning board. A seasonal hotel, however, is not a permitted use. On October 30, 1987, the plaintiff filed an application for a zoning permit for the building, describing its present use as a “20 unit seasonal hotel/rooming house . . . .” The plaintiffs application proposed alteration of the building to create twelve units with private baths and no kitchens, “for continued use as [a] rooming house.” On the same day, Crabtree, the Milford zoning enforcement officer, approved the application.

On December 24,1987, Crabtree wrote to the plaintiff informing him that the chairman of the planning and zoning board had instructed Crabtree to revoke the permit, and ordering the plaintiff to “cease and desist all construction until this matter is resolved.” In response, the plaintiff filed with the board the appeal that is involved in this case, claiming that the “[zjoning permit to reconstruct room configuration from 20 unit hotel/rooming house to 12 units with baths (no private kitchens) granted 30 October 1987 by Zoning Enforcement Officer . . . was illegally and arbitrarily withdrawn by the Zoning Enforcement Officer ... on December 24, 1987.”

The board held a hearing on the plaintiff’s appeal. One of the issues addressed at the hearing was whether the building was a nonconforming use as a seasonal hotel. The plaintiff introduced a copy of the site plan that he had presented to Crabtree when the zoning permit was issued. He argued that the number of rooms in the building would be reduced to twelve, that parking would be provided, and that the building’s nonconformity would be reduced. He claimed that there was no reason for Crabtree to revoke the permit.

Crabtree testified that he had revoked the permit at the request of Marino, who at the time was the chairman of the planning and zoning board. Crabtree testified further that his research in the tax records indicated that the building had been used as a hotel and that “the building is obviously an old seasonal hotel.” Crabtree argued that the permit was valid because there would be a decrease in the use of the building, most of the work was to be done on the inside of the building and there would be no change to a multifamily use, “so that the original use is consistent with what can be seen now.” Crabtree also testified that in his view there had been no abandonment of any nonconforming use of the building.

Marino testified that, after consulting with the city attorney, the planning and zoning board felt that the permit had been improperly issued because it involved a change of use from a rooming house and because of a lack of on site parking. Therefore, Marino testified, Crabtree was ordered to revoke the permit.

As the hearing before the board continued, a discussion ensued concerning whether any nonconforming use of the building had been abandoned and whether the fact that the plaintiff did not intend to live in the building invalidated its use as a rooming house. Several persons testified, in opposition to the plaintiffs appeal, that the use of the building as a hotel had been abandoned and that its use as a rooming house would harm the area. In rebuttal, the plaintiff stated that his attempt to renovate the building would improve the area and that “the permit was valid and should not have been revoked without a hearing or any opportunity to be heard . . . .” The board thereafter met to consider the merits of the plaintiff’s appeal. After discussion, the board voted to deny the appeal.

The plaintiff appealed to the Superior Court. The trial court determined that the permit had been issued properly and that Crabtree had ruled that there had been no abandonment of a nonconforming use.

The court determined further that (1) it “cannot find that . . . Crabtree’s ruling [of no abandonment] could not have been reasonably reached under the circumstances,” (2) “[t]he issue before the defendant Board was the propriety of the revocation of the Zoning Permit,” and (3) the “permit had been properly approved and the attempted revocation was clearly illegal.” Accordingly, the court sustained the plaintiff’s appeal.

The board appealed from that judgment to the Appellate Court, claiming, inter alia, that “the trial court (1) did not utilize the proper standard of review, [and] (2) did not recognize the existence of facts and reasons in the record supporting the board’s decision . . . .” Casería v. Zoning Board of Appeals, supra, 23 Conn. App. 233. The Appellate Court concluded that “[t]he unusual factual posture of this case makes it unnecessary for us to decide the board’s scope of review. The revocation of the permit at the direction of the planning and zoning board was void, and, regardless of its scope of review, the board of appeals was powerless to affirm a void act.” Id., 234. The Appellate Court reasoned that the planning and zoning board lacked a veto power over decisions of the zoning enforcement officer because “General Statutes § 8-7 vests the power to review decisions of the zoning enforcement officer in the zoning board of appeals, not the planning and zoning board.” Id., 235. Therefore, the court stated, the order of Marino, as chairman of the planning and zoning board, to revoke the permit “usurped the appellate jurisdiction vested by law in the zoning board of appeals, and was, accordingly, void.” Id.

The Appellate Court, focusing on the revocation letter and the testimony of Crabtree and Marino providing that Marino had ordered Crabtree to revoke the permit, viewed the administrative record as disclosing “a fatal jurisdictional flaw in the revocation. Thus, the jurisdictional issue was squarely before the board of appeals and should have been its first concern.” Id., 236.

The Appellate Court further concluded that “[i]f Crabtree had revoked the permit in the good faith belief that it had been erroneously issued, issued under false pretenses, or violated by subsequent acts of the applicant—in other words, if he had revoked the permit in the good faith discharge of his office—the board of appeals, hearing de novo an appeal from such a revocation, would wield that same authority to remake the decision ‘as in its opinion’ . . . ought to have been made.” Id., 236-37. It was the Appellate Court’s view, however, that Crabtree had “used the authority of his office for the invalid purpose of carrying into effect a void and illegal decision of the planning and zoning board”; id., 237; and that as such, his action was outside his scope of authority, rendering the zoning board of appeals without authority to affirm that action. Id. The Appellate Court, therefore, affirmed the judgment of the trial court sustaining the plaintiff’s appeal from the decision of the board. This appeal followed.

The board claims that the Appellate Court improperly concluded that (1) the board lacked jurisdiction to hear the plaintiff’s appeal, and (2) it was unnecessary, therefore, to decide whether the trial court applied an improper scope of review to the board’s decision. We agree.

“ ‘Subject matter jurisdiction is the power of the court to hear and determine cases of the general class to which the proceedings in question belong.’ ” LeConche v. Elligers, 215 Conn. 701, 709, 579 A.2d 1 (1990), quoting Shea v. First Federal Savings & Loan Assn. of New Haven, 184 Conn. 285, 288, 439 A.2d 997 (1981). The same principle applies to administrative agencies; Castro v. Viera, 207 Conn. 420, 428, 541 A.2d 1216 (1988); including zoning authorities. Langer v. Planning & Zoning Commission, 163 Conn. 453, 458, 313 A.2d 44 (1972). “Once [a] board of appeals is provided for in the zoning ordinance, its powers stem directly from the statute . . . and its powers are not subject to restriction by provisions contained in the ordinance or amendments thereto.” (Citations omitted.) Id.

Section 9.2.1 of the Milford zoning regulations vests in the board the power “[t]o hear and decide appeals where it is alleged that there is an error in any order, requirement or decisions made by the Zoning Enforcement Officer . . . .” This language tracks that of General Statutes § 8-6, which provides in pertinent part that “[t]he zoning board of appeals shall have the following powers and duties: (1) To hear and decide appeals where it is alleged that there is an error in any order, requirement or decision made by the official charged with the enforcement of this chapter or any bylaw, ordinance or regulation adopted under the provisions of this chapter . . . .”

There is no question that the revocation of the permit and the cease and desist order by Crabtree was an “order” within the scope of General Statutes § 8-6 and § 9.2.1 of the zoning regulations and that the proceedings before the board constituted an appeal from that order. Indeed, as the board points out, it was the plaintiff who invoked the jurisdiction of the board by filing his appeal from that order. The question, therefore, is whether this record supports the determination of the Appellate Court that there was a fatal jurisdictional flaw in the proceedings before the board. We conclude that the record does not support that determination.

The crux of the Appellate Court’s decision was its determination that Crabtree had not acted “in the good faith discharge of his office” in revoking the permit. Caserta v. Zoning Board of Appeals, supra, 23 Conn. App. 237. If he had so acted—“if he had revoked the permit in the good faith belief that it had been erroneously issued”—the board would have had the “same authority to remake the decision ‘as in its opinion’ it ought to have been made. General Statutes § 8-7.” Id., 236-37.

Good faith is a subjective concept that implicates the sincerity of the motives animating the person involved. See Kendzierski v. Goodson, 21 Conn. App. 424, 429-30, 574 A.2d 249 (1990). Thus, the Appellate Court viewed the board’s jurisdiction as having been defeated by an improper motive of Crabtree in issuing the revocation, namely, <!us[ing] the authority of his office for the invalid purpose of carrying into effect a void and illegal decision of the planning and zoning board . . . .” Caserta v. Zoning Board of Appeals, supra, 23 Conn. App. 237. We conclude, however, that this purported improper motive was insufficient to defeat what was otherwise manifestly valid jurisdiction in the board to hear the plaintiff’s appeal.

First, there is nothing in the zoning statutes defining the jurisdiction of zoning boards of appeals to suggest that the motives of the zoning enforcement officer whose decision is the subject of an appeal affect the board’s jurisdiction. See General Statutes §§ 8-5 through 8-7e; see also Labor Board v. I. & M. Electric Co., 318 U.S. 9, 18, 63 S. Ct. 394, 87 L. Ed. 579 (1943) (when National Labor Relations Board complaint issues, only-question is truth of its accusation; motives or bad faith of informer cannot deprive board of jurisdiction). Nor does the plaintiff offer any statutory justification for such an analysis.

Furthermore, in the area of judicial subject matter jurisdiction we have counseled “that the court should indulge every presumption in favor of subject matter jurisdiction.” LeConche v. Elligers, supra, 714; see also Gurliacci v. Mayer, 218 Conn. 531, 542-43, 590 A.2d 914 (1991). We see no reason on the record of this case to deprive a zoning board of appeals of the same presumption. That presumption is particularly apt here because zoning agencies ordinarily conduct their proceedings with some degree of informality. Saporiti v. Zoning Board of Appeals, 137 Conn. 478, 482, 78 A.2d 741 (1951). It would be inconsistent with that informality to require a zoning board of appeals to determine its subject matter jurisdiction on the basis of an evaluation of the motives of the zoning officer whose actions are before it by way of an appeal.

Finally, we disagree with the Appellate Court’s analysis as a matter of policy. The result of that analysis would be that, if Crabtree were incorrect on the merits of the propriety of the permit, and the board, Marino and the other witnesses were correct on those merits, the plaintiff nevertheless would retain a permit to which he was not entitled solely because of purportedly improper reasons that prompted Crabtree properly to revoke the permit. That does not strike us as rational land use planning procedure.

We conclude, therefore, that the question of whether the planning and zoning board, or Marino as its chairman, had the authority to order Crabtree to revoke the permit was irrelevant to the board’s subject matter jurisdiction over the plaintiffs appeal from that revocation. The issue before the board was whether the plaintiff was entitled to the permit, not whether Crab-tree had acted with improper motives in revoking it. The Appellate Court improperly injected a subject matter jurisdiction analysis that was not pertinent to the case.

The judgment of the Appellate Court is reversed and the case is remanded to that court for determination of whether the trial court applied a proper scope of review to the decision of the board.

In this opinion the other justices concurred.

       Although the record indicates that the Milford city clerk was also summoned as a defendant, we regard the board as the sole defendant and proceed accordingly.

       Although Crabtree’s only official appointment was that of assistant city planner, the Appellate Court determined that he acted de facto as the city’s zoning enforcement officer, and that determination is not before us on this certified appeal. See Caserta v. Zoning Board of Appeals, 23 Conn. App. 232, 238-41, 580 A.2d 528 (1990).

       Crabtree’s letter to the plaintiff provided: “Please be advised that I have been instructed by the Planning and Zoning Board Chairman to revoke the zoning permit I issued on October 30, 1987 to you for use as a rooming house pending approval of the construction by the Planning and Zoning Board. You must cease and desist all construction until this matter is resolved.” There is no indication in this record that the plaintiff had begun construction in reliance on the permit before it was revoked.

       Since the transcript of the hearing was incomplete, the parties agreed in the trial court that the court could consider the board’s minutes of the hearing as the record of the hearing. Our recitation of the evidence adduced at the hearing is limited to that evidence necessary to the determination of this appeal, and is not meant to be a complete summary of all of the evidence presented.

       The gist of this claim is that the trial court improperly focused on whether Crabtree’s decision to issue the permit had been supported by sufficient evidence, rather than on whether the de novo decision of the board to reject the plaintiff’s appeal had been supported by sufficient evidence.

       The board also claimed that the trial court improperly permitted the plaintiff to introduce evidence on appeal and improperly held that Crab-tree was the acting zoning enforcement officer. Caserta v. Zoning Board of Appeals, 23 Conn. App. 232, 233, 580 A.2d 528 (1990). The Appellate Court determined those issues adversely to the board, and they are not within the question we certified for appeal to this court.

       General Statutes (Rev. to 1987) § 8-7, as amended by Public Acts 1987, No. 87-215, §§ 4, 7, provides: “appeals to board, hearings, effective DATE OF EXCEPTIONS OR VARIANCES; FILING REQUIREMENTS. The concurring vote of four members of the zoning board of appeals shall be necessary to reverse any order, requirement or decision of the official charged with the enforcement of the zoning regulations or to decide in favor of the applicant any matter upon which it is required to pass under any bylaw, ordinance, rule or regulation or to vary the application of the zoning board of appeals, by any person aggrieved or by any officer, department, board or bureau of any municipality aggrieved and shall be taken within such time as is prescribed by a rule adopted by said board, or, if no such rule is adopted by the board, within thirty days, by filing with the zoning commission or the officer from whom the appeal has been taken and with said board a notice of appeal specifying the grounds thereof. The officer from whom the appeal has been taken shall forthwith transmit to said board all the papers constituting the record upon which the action appealed from was taken. An appeal shall not stay any such order, requirement or decision which prohibits further construction or expansion of a use in violation of such zoning regulations except to such extent that the board grants a stay thereof. An appeal from any other order, requirement or decision shall stay all proceedings in the action appealed from unless the zoning commission or the officer from whom the appeal has been taken certifies to the zoning board of appeals after the notice of appeal has been filed that by reason of facts stated in the certificate a stay would cause imminent peril to life or property, in which case proceedings shall not be stayed, except by a restraining order which may be granted by a court of record on application, on notice to the zoning commission or the officer from whom the appeal has been taken and on due cause shown. Such board shall, within'the period of time permitted under section 8-7d, hear such appeal and give due notice thereof to the parties. Notice of the time and place of such hearing shall be published in a newspaper having a substantial circulation in such municipality at least twice at intervals of not less than two days, the first not more than fifteen days, nor less than ten days, and the last not less than two days before such hearing. In addition to such notice, such board may, by regulation, provide for notice by mail to persons who are owners of land which is adjacent to the land which is the subject of the hearing. At such hearing any party may appear in person and may be represented by agent or by attorney. Such board may reverse or affirm wholly or partly or may modify any order, requirement or decision appealed from and shall make such order, requirement or decision as in its opinion should be made in the premises and shall have all the powers of the officer from whom the appeal has been taken but only in accordance with the provisions of this section. Whenever a zoning board of appeals grants or denies any special exception or variance in the zoning regulations applicable to any property or sustains or reverses wholly or partly any order, requirement or decision appealed from, it shall state upon its records the reason for its decision and the zoning bylaw, ordinance or regulation which is varied in its application or to which an exception is granted and, when a variance is granted, describe specifically the exceptional difficulty or unusual hardship on which its decision is based. Notice of the decision of the board shall be published in a newspaper having a substantial circulation in the municipality and addressed by certified mail to any person who appeals to the board, by its secretary or clerk, under his signature in any written, printed, typewritten or stamped form, within fifteen days after such decision has been rendered. Such exception or variance shall become effective upon the filing of a copy thereof (1) in the office of the town, city or borough clerk, as the case may be, but, in the case of a district, in the offices of both the district clerk and the town clerk of the town in which such district is located and (2) in the land records of the town in which the affected premises are located, in accordance with the provisions of section 8-3d.”

       Indeed, this administrative record bears out that the plaintiff perceived that to be the issue before the board. His argument to the board was that the permit was validly issued in the first instance and that the revocation was invalid for that reason, and not because of any jurisdictional flaws in the procedure. It was not until his rebuttal that he sought to raise procedural claims based, not on Crabtree’s motives, but on the lack of notice and an opportunity to be heard before the revocation issued.