source: Caselaw Access Project

author: KATZ, J.

license: Public Domain

text:
    WEBSTER BANK v. JOANNA V. ZAK ET AL.
    (SC 16489)
    Borden, Norcott, Katz, Vertefeuüle and West, Js.

      Argued January 15
    officially released March 26, 2002

      Kerry M. Wisser, with whom was Nathan A. Schatz, for the appellant (defendant MFR of East Hampton, LLC).

      Jeffrey T. Beatty, with whom, on the brief, was Richard J. Beatty, for the appellee (substitute plaintiff EMC Mortgage Corporation).
   Opinion

KATZ, J.

The sole issue in this certified appeal is whether the Appellate Court properly reversed the judgment of the trial court and remanded the case to that court for factual findings regarding the standing of the defendant MFR of East Hampton, LLC (MFR), as the successor in interest to certain real property that was the subject of a foreclosure action. We reverse the judgment of the Appellate Court.

The record reveals the following undisputed facts and procedural history. On July 16, 1997, the plaintiff, Webster Bank (bank), brought an action seeking to foreclose a mortgage on three parcels of land in Clinton, of which the named defendant, Joanna V. Zak (Zak), was the titleholder of record. On November 24, 1997, the trial court, Arena,, J., rendered a judgment of foreclosure by sale. After determining the amount of the debt due on the note and the costs associated with the foreclosure action, the court scheduled the sale date for July 18, 1998.

The bank subsequently assigned its interest in the note and mortgage to EMC Mortgage Corporation (EMC). Thereafter, EMC moved to substitute itself as the plaintiff in the foreclosure action and Zak moved to extend the foreclosure sale date. On July 13, 1998, the trial court granted both motions. The court also opened the November 24, 1997 judgment and rendered a new judgment of foreclosure by sale with a sale date of September 19, 1998.

On September 17, 1998, Zak filed in the United States Bankruptcy Court for the District of Connecticut for protection under chapter 13 of the United States Bankruptcy Code, which was later converted to a chapter 7 bankruptcy. See 11 U.S.C. § 101 et seq. The filing of the bankruptcy petition stayed the trial court proceedings, and the foreclosure sale did not occur as scheduled. Thereafter, EMC filed in the Bankruptcy Court a motion for relief from the bankruptcy stay. On January 5,1999, the Bankruptcy Court granted EMC’s motion for relief from the stay on the condition that Tracy M. Saxe, the trustee of Zak’s bankruptcy estate, be cited in as a party defendant in the foreclosure action. EMC subsequently moved in the trial court to open the judgment of foreclosure and to amend the complaint to cite in Saxe as a party defendant. On February 8, 1999, the trial court opened the judgment and granted EMC’s motion to file an amended complaint. EMC subsequently filed an amended complaint naming Saxe as a party defendant.

On March 31, 1999, Zak conveyed all of her right, title and interest, including her equity of redemption, in the foreclosed property to MFR by quitclaim deed. Saxe was not a signatoiy to the deed. Thereafter, MFR moved to be cited in as a party defendant, pursuant to General Statutes § 52-107 and Practice Book § 9-6, claiming that it was “the record titleholder of the property that is the subject of the foreclosure, and any judgment of foreclosure will necessarily affect it by foreclosing out its interest as the titleholder . . . .” MFR furnished a copy of the quitclaim deed in support of its motion. On May 4, 1999, without objection from EMC or Saxe, the trial court granted MFR’s motion. EMC subsequently filed a second amended complaint in which it named MFR as a party defendant, stating: “By her Quitclaim Deed dated March 31,1999, and recorded April 1, 1999 ... on the Clinton Land Records, [Zak] conveyed her interest in the mortgaged premises to [MFR].” MFR is the only defendant involved in this certified appeal.

MFR filed an answer and special defense to EMC’s second amended complaint. In its special defense, MFR claimed that EMC’s failure to provide the appropriate notice of default pursuant to the requirements of the mortgage agreement barred it from instituting foreclosure proceedings. No other party filed a pleading in response to EMC’s second amended complaint.

On October 8, 1999, EMC filed a motion for summary judgment. EMC claimed that MFR was bound by the trial court’s November 24, 1997 judgment as Zak’s successor in interest, and was precluded, therefore, from asserting new defenses to liability that Zak had not asserted prior to that judgment. Similarly, EMC contended that MFR was bound by the amount of the mortgage debt as determined by the trial court in connection with that judgment. MFR opposed the motion for summary judgment as to both the issue of liability and the amount of the debt. On February 8, 2000, the trial court granted summary judgment on the issue of liability, and scheduled a hearing on the amount of the debt for May 31, 2000.

At that hearing, EMC claimed that the trial court should calculate the amount by adding to the debt established at the November 24,1997 judgment the per diem interest that had accrued on that debt since that date. MFR contended, in response, that EMC’s second amended complaint citing in MFR opened the pleadings and, thereby allowed MFR to assert new defenses to liability, as well as to contest the amount of the debt established by the trial court’s November 24,1997 judgment. Therefore, MFR claimed, the court should hear evidence regarding the amount of the debt.

In its memorandum of decision, dated June 5, 2000, the trial court determined that “each opening of the original judgment of foreclosure, dated November [24], 1997, was for a limited purpose: on July 13, 1998, to substitute EMC as successor plaintiff to [the bank]; on July [13], 1998, to set a new sale date of September 19, 1998; on February 8, 199[9], to cite in [Saxe] as trustee of the bankruptcy estate of [Zak]. ” It further determined that “[n]othing in the record indicates that the judgment of foreclosure by sale was ever vacated.” The court concluded “that the debt established by the judgment of November [24], 1997, is [therefore] the controlling debt in this [foreclosure] action.”

Following its discussion of the merits, the trial court questioned MFR’s standing in the action as the successor to Zak’s interest. In particular, the corut questioned whether Zak had the authority to convey any interest in the property to MFR by quitclaim deed in March, 1999, when the property had become part of Zak’s bankruptcy estate following her petition for bankruptcy in September, 1998. Additionally, the court noted that, although Saxe, as the trustee of Zak’s bankruptcy estate, had authority to convey the property to MFR, there was no evidence presented, nor any indication in the record, that Saxe had, in fact, done so. Despite its apparent concern regarding the legitimacy of MFR’s title, the trial court rendered a judgment of foreclosure by sale, and calculated the amount of the debt using the amount of the debt established at the November 24,1997judgment and adding the per diem interest that had accrued since that date.

MFR appealed from the trial court’s judgment of foreclosure to the Appellate Court, claiming that the trial court had improperly concluded that the amount of debt established in the November 24, 1997 judgment was the controlling debt in the foreclosure action. No party contested MFR’s standing to appeal. On January 16, 2001, without reaching the merits of MFR’s appeal, the Appellate Court, sua sponte, reversed and remanded the case to the trial court “for the purpose of making factual findings to determine whether the defendant [MFR] has standing to assert its claim to an interest in the property under foreclosure and to otherwise participate in the proceedings.” Webster Bank v. Zak, 61 Conn. App. 402, 403, 763 A.2d 1090 (2001).

MFR subsequently filed a petition for certification to appeal to this court, which we granted, limited to the following issue: “Did the Appellate Court properly reverse the judgment of the trial court and remand the case for factual findings regarding the standing of the defendant MFR of East Hampton, LLC?” Webster Bank v. Zak, 255 Conn. 946, 769 A.2d 61 (2001). This appeal followed. We conclude that, although the Appellate Court was required to address any questions regarding the standing of the parties before it, its decision to reverse the judgment of the trial court and to remand the case to that court for further findings regarding MFR’s standing was improper.

Before addressing the substantive issue in this appeal, we address briefly the scope of our review. The facts underlying MFR’s appeal from the judgment of the trial court are undisputed. Therefore, the implicit conclusion of the Appellate Court that the record was insufficient for a determination that MFR had standing to participate in the foreclosure action involves a question of law, subject to plenary review. See AvalonBay Communities, Inc. v. Orange, 256 Conn. 557, 565, 775 A.2d 284 (2001) (conclusions based on undisputed facts are conclusions of law, over which our review is plenary); Olson v. Accessory Controls & Equipment Corp., 254 Conn. 145, 156, 757 A.2d 14 (2000) (recognizing that plenary review applies to questions of law). Thus, “[w]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct”; (internal quotation marks omitted) In re David W., 254 Conn. 676, 686, 759 A.2d 89 (2000); and whether they “find support in the facts that appear in the record.” (Internal quotation marks omitted.) Powers v. Olson, 252 Conn. 98, 105, 742 A.2d 799 (2000).

We begin our analysis by underscoring that a party must have standing to assert a claim in order for the court to have subject matter jurisdiction over the claim. Ramos v. Vernon, 254 Conn. 799, 808, 761 A.2d 705 (2000). “Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy.” (Internal quotation marks omitted.) Ganim v. Smith & Wesson Cow., 258 Conn. 313, 347, 780 A.2d 98 (2001). “This court has often stated that the question of subject matter jurisdiction, because it addresses the basic competency of the court, can be raised by any of the parties, or by the court sua sponte, at any time.” Daley v. Hartford, 215 Conn. 14, 27-28, 574 A.2d 194, cert. denied, 498 U.S. 982, 111 S. Ct. 513, 112 L. Ed. 2d 525 (1990). “[T]he court has a duty to dismiss, even on its own initiative, any appeal that it lacks jurisdiction to hear.” Sasso v. Aleshin, 197 Conn. 87, 89,495 A.2d 1066 (1985). Moreover, “[t]he parties cannot confer subject matter jurisdiction on the court, either by waiver or by consent.” Sadloski v. Manchester, 228 Conn. 79, 83, 634 A.2d 888 (1993), on appeal after remand, 235 Conn. 637, 668 A.2d 1314 (1995). “Standing [however] is not a technical rule intended to keep aggrieved parties out of court; nor is it a test of substantive rights. Rather it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented.” (Internal quotation marks omitted.) Harris v. New Milford, 259 Conn. 402, 409-10, 788 A.2d 1239 (2002).

On appeal, MFR contends that a remand to the trial court for the purpose of making factual findings regarding MFR’s standing as Zak’s successor in interest is unnecessary because MFR had made the requisite showing of “a legal or equitable right, title or interest in the subject matter of the [foreclosure action]”; (internal quotation marks omitted) Ganim v. Smith & Wesson Corp., supra, 258 Conn. 347; to establish standing in the trial court. We agree.

In the trial court, MFR moved, pursuant to § 52-107; see footnote 4 of this opinion; to be cited in as a party defendant as the owner of the equity of redemption in the foreclosed property. Section 52-107 provides in relevant part that “[i]f a person not a party has an interest or title which the judgment will affect, the court, on his application, shall direct him to be made a party.” In Washington Trust Co. v. Smith, 241 Conn. 734, 699 A.2d 73 (1997), this court had occasion to consider the showing required for a party seeking to establish a sufficient interest or title in the property that the judgment would affect for puiposes of intervening in a foreclosure action. This court stated that “[a] proposed intervenor must allege sufficient facts, through the submitted motion and pleadings, if any, in order to make a showing of his or her right to intervene. The inquiry is whether the claims contained in the motion, if true, establish that the proposed intervenor has a direct and immediate interest that will be affected by the judgment.” Id., 747. Thereafter, we concluded in Washington Trust Co. that John Holstein, trustee of City Discount Oil Nominee Trust (Holstein), a proposed intervening defendant who was the owner of the equity of redemption in the property that was the subject of the foreclosure action, had alleged sufficient facts to support his motion to intervene. Id., 736, 748. Holstein had moved to intervene for the purpose of protecting his interest in the foreclosed property following the trial court’s judgment of foreclosure by sale on the property, but prior to its confirmation of the sale. Id., 738. In his motion to intervene, Holstein had “alleged that he [had] purchased the equity of redemption from the owner of the property subject to foreclosure and that he wanted to redeem the mortgage.” Id., 748. In addition, this court noted that, “although unnecessary, but prudent, Holstein’s motion was supported by documentation corroborating his interest in the foreclosed property . . . .” Id., 748 n.9. In reversing the Appellate Court’s decision that had affirmed the trial court’s denial of Holstein’s motion to intervene, this court stated that “the burden of proving [an interest in the foreclosure action], by way of testimony or other evidence, in order to be allowed to intervene ... is too high a hurdle for purposes of establishing a right to intervene.” (Emphasis in original.) Id., 747. The court concluded that “Holstein [was] entitled to prove [his] interests, if any, as [a defendant] in the foreclosure action before the foreclosure sale was confirmed, and at that time [the plaintiffs] would have been entitled to dispute the validity of . . . Holstein’s interests on the merits.” Id., 748. We held, therefore, that Holstein had established the factual predicate for a determination, as a matter of law, that he had standing to intervene because “if true, the allegations in [his motion] . . . would constitute the required [showing] of direct and substantial interests that would be impaired by the foreclosure action.” Id.

In the present case, as in Washington Trust Co., MFR alleged in its motion to be cited in as a party defendant that it had purchased the property that was the subject of the foreclosure action and that, consequently, it was the owner of the equity of redemption in the foreclosed property. MFR further alleged that any judgment of foreclosure would necessarily affect its interest in the property by foreclosing out its interest as the owner of the equity of redemption. Additionally, MFR furnished a copy of the quitclaim deed corroborating its alleged interest in the property. The trial court granted MFR’s motion.

After MFR filed its motion to be cited in, EMC had the opportunity to contest the merits of MFR’s alleged interest in the mortgaged property. EMC did not do so. To the contrary, EMC filed a second amended complaint naming MFR as a party defendant in the foreclosure action because “[Zak had] conveyed her interest in the mortgaged premises to MFR . . . .” It is well established that “[f] actual allegations contained in pleadings upon which the case is tried are considered judicial admissions”; (internal quotation marks omitted) Ferreira v. Pringle, 255 Conn. 330, 345, 766 A.2d 400 (2001); which “[dispense] with the production of evidence by the opposing party as to the fact admitted, and [are] conclusive upon the party making [them].” (Internal quotation marks omitted.) Tianti v. William v. Raveis Real Estate, Inc., 231 Conn. 690, 695 n.7, 651 A.2d 1286 (1995); see State v. Rodriguez, 180 Conn. 382, 396, 429 A.2d 919 (1980) (“[t]he vital feature of a judicial admission is universally conceded to be its conclusiveness upon the party making it, i.e. the prohibition of any further dispute of the fact by him, and any use of evidence to disprove or contradict it” [internal quotation marks omitted]). Therefore, by virtue of its second amended complaint, EMC conceded that MFR was the successor in interest to the property that is the subject of the foreclosure action. This concession conclusively established the factual predicate necessary for a determination, as a matter of law, that MFR had standing to protect its interests in the foreclosure action.

The record further reveals that no other party, either in the trial court or in the Appellate Court, contested MFR’s interest in the foreclosed property. Although the trial court questioned MFR’s standing in its memorandum of decision, it expressly stated that “Zak, the record owner of the property, conveyed all her right, title and interest in the premise[s] to [MFR].” Because the court thereafter rendered judgment against MFR on the merits, its decision necessarily was predicated on a conclusion that MFR did not lack standing.

EMC claims, however, that the Appellate Court’s remand was proper because, following the commencement of the bankruptcy proceedings, the foreclosed property became part of Zak’s bankruptcy estate pursuant to § 541 of the United States Bankruptcy Code. 11 U.S.C. § 541. Therefore, according to EMC, Zak did not have the authority to transfer the property to MFR. As such, EMC contends, only Saxe, as trustee of the bankruptcy estate, had the authority to transfer the property to MFR. Moreover, EMC asserts, Saxe had the authority to void any transfer made by Zak for two years from the date of Zak’s transfer to MFR pursuant to § 549 of the United States Bankruptcy Code. At the time of the proceedings in the Appellate Court, the two year time period had not yet expired. Therefore, EMC contends that the Appellate Court’s exercise of its discretion to remand the case to the trial court for further findings regarding MFR’s standing was appropriate “because the possibility that further proceedings could be taken by [Saxe] remained alive.” Although we acknowledge that EMC’s assumption about the rationale underlying the Appellate Court’s opinion may be accurate, we disagree with its import.

Section 549 (a) of the Bankruptcy Code provides in relevant part that “the trustee [of a bankruptcy estate] may avoid a transfer of property of the estate ... (1) that occurs after the commencement of the [bankruptcy] case; and (2) . . . (B) that is not authorized under [the Code] or by the court.” 11 U.S.C. § 549 (a) (1) and (2) (B). Section 549 (d) provides that such an action by a trustee “may not be commenced after the earlier of . . . (1) two years after the date of the transfer sought to be avoided; or (2) the time the case is closed or dismissed.” 11 U.S.C. § 549 (d). “Section 549 exists as a protection for creditors against unauthorized debtor transfers of estate property.” In re Schwartz, 954 F.2d 569, 574 (9th Cir. 1992). Accordingly, “[i]n most circumstances, [§] 549 applies to transfers in which the debtor is a willing participant. . . . For example, in a transfer unrelated to any antecedent debt, the debtor may sell a portion of the estate’s property to a third person.” Id. It is well established that § 549 achieves its purpose, not by rendering postpetition transfers of property by the bankruptcy debtor void, but rather by rendering them voidable upon timely action of the trustee. See In re Home America T.V.-Appliance Audio, Inc., 232 F.3d 1046, 1051 (9th Cir. 2000), cert. denied sub nom. Shallry v. United States, 534 U.S. 814, 122 S. Ct. 39, 151 L. Ed. 2d 12 (2001); In re Halabi, 184 F.3d 1335, 1338 (11th Cir. 1999); In the Matter of Berryman Products, Inc., 159 F.3d 941, 946 (5th Cir. 1998); In re Pucci Shoes, Inc., 120 F.3d 38, 41 (4th Cir. 1997); In re M & L Business Machine Co., 59 F.3d 1078, 1080 (10th Cir. 1995); In re Nordic Village, Inc., 915 F.2d 1049, 1055 (6th Cir. 1990), rev’d on other grounds sub nom. United States v. Nordic Village, Inc., 503 U.S. 30,112 S. Ct. 1011, 117 L. Ed. 2d 181 (1992); In re Photo Promotion Associates, Inc., 881 F.2d 6, 10 (2d Cir. 1989); In re Ward, 837 F.2d 124, 127 (3d Cir. 1988); In the Matter of Allen, 816 F.2d 325, 327-28 (7th Cir. 1987); Smith v. Mark Twain National Bank, 805 F.2d 278, 293 (8th Cir. 1986).

In the present case, it is undisputed that the transfer from Zak to MFR took place following Zak’s petition for bankruptcy, and that Saxe was not a signatory to the quitclaim deed transferring Zak’s interest in the foreclosed property to MFR. Because the bankruptcy case remained open, however, Saxe had two years from March 31,1999, the date that Zak quitclaimed her interest in the foreclosed property to MFR, to make a timely objection to that transfer. Saxe never raised an objection to the transfer to MFR, however, although he had been made a party to the foreclosure action and, in that capacity, had been served with a copy of MFR’s motion to be cited in as Zak’s successor in interest. Nor did Saxe challenge the transfer following EMC’s second amended complaint citing in MFR as the titleholder of the foreclosed property or when the trial court expressly questioned MFR’s standing as Zak’s successor in interest. Thus, twenty-two of the twenty-four months during which Saxe could have avoided the transfer of the property from Zak to MFR had expired without an objection from Saxe, when, on January 16, 2001, the Appellate Court remanded the case for further proceedings regarding MFR’s standing, without reaching the merits of MFR’s appeal. Finally, we note that Saxe did not object to MFR’s presence in the case before the Appellate Court. In the absence of any indication that Saxe intended to take any action to avoid the transfer in the future, we reject EMC’s claim that the Appellate Court’s decision remanding MFR’s appeal was warranted by the possibility that Saxe might object to MFR’s standing in the last two months prior to the expiration of his right to do so. Finally, we note that, on January 15, 2002, the date of oral argument before this court, the time period during which Saxe could have avoided the transfer had expired.

Our review of the record leads us to conclude that MFR had made the requisite factual showing to establish itself as the successor in interest to Zak as owner of the foreclosed property. In the absence of any evidence of an intent by Saxe to avoid that transfer, we conclude that the Appellate Court improperly reversed the judgment of the trial court and remanded MFR’s appeal to that court for factual findings regarding MFR’s standing as the owner of the foreclosed property.

The judgment of the Appellate Court is reversed and the case is remanded to that court for consideration of the merits of the appeal.

In this opinion the other justices concurred.

       Also included as defendants in the bank’s foreclosure action were Kenneth A. Zak, an original mortgagor of the property who had since transferred his interest to Zak, and the following parties, all of which claimed some interest in the mortgaged properly: GTT Corporation, as trustee of Oregon Properties Realty Trust (GTT); Jonathan Googel; Stephen J. Dellaquila; New Haven Savings Bank; Femdale Condominium Association, Inc.; Boston Safe Deposit and Trust Company; the state of Connecticut; and the United States of America. The trial court subsequently granted motions to cite in MFR, Zak’s successor in interest to the property, and Tracy M. Saxe, the trustee of Zak’s bankruptcy estate, as defendants and a motion to substitute Donald Mondani as a defendant for GTT.

       EMC is the only plaintiff in this certified appeal.

       Pursuant to § 362 of the United States Bankruptcy Code, the filing of a bankruptcy petition creates an automatic stay of execution against the commencement or continuation of all actions against the debtor that were, or could have been, filed against the debtor prior to the bankruptcy filing. See 11 U.S.C. § 362.

       General Statutes § 52-107 provides in relevant part: “If a person not a party has an interest or title which the judgment will affect, the court, on his application, shall direct him to be made a party.”
      Practice Book § 9-6 provides: “Any person may be made a defendant who has or claims an interest in the controversy, or any part thereof, adverse to the plaintiff, or whom it is necessary, for a complete determination or settlement of any question involved therein, to make a party.”

       Specifically, the trial court stated: “The court is troubled by the presence of the defendant MFR in this case. MFR claims standing as a grantee of the defendant [Zak]. However, at the time of the quitclaim deed of Zak to MFR, [Saxe] had appeared in this matter as trustee in bankruptcy as to the bankruptcy estate of Zak. No evidence was presented to the court and there is nothing in the record to indicate [that] Saxe, as trustee, conveyed any interest to MFR. The court questions the standing of MFR in this case.”

       Although the trial court’s actions are not the subject of our review in this appeal, we note that the trial court properly granted MFR’s motion to be cited in as a defendant.

       Section 541 of the United States Bankruptcy Code provides: “(a) The commencement of a case under section 301, 302, or 303 of this title creates an estate. Such estate is comprised of all the following property, wherever located and by whomever held:
      “(1) Except as provided in subsections (b) and (c)(2) of this section, all legal or equitable interests of the debtor in property as of the commencement of the case.
      “(2) All interests of the debtor and the debtor’s spouse in community property as of the commencement of the case that is—
      “(A) under the sole, equal, or joint management and control of the debtor; or
      “(B) liable for an allowable claim against the debtor, or for both an allowable claim against the debtor and an allowable claim against the debt- or’s spouse, to the extent that such interest is so liable.
      “(3) Any interest in property that the trustee recovers under section 329(b), 363(n), 543, 550, 553, or 723 of this title.
      “(4) Any interest in property preserved for the benefit of or ordered transferred to the estate under section 510(c) or 551 of this title.
      “(5) Any interest in property that would have been properly of the estate if such interest had been an interest of the debtor on the date of the filing of the petition, and that the debtor acquires or becomes entitled to acquire within 180 days after such date—

        “(A) by bequest, devise, or inheritance;
      "(B) as a result of a property settlement agreement with the debtor’s spouse, or of an interlocutory or final divorce decree; or
      “(C) as a beneficiary of a life insurance policy or of a death benefit plan.
      "(6) Proceeds, product, offspring, rents, or profits of or from property of the estate, except such as are earnings from services performed by an individual debtor after the commencement of the case.
      “(7) Any interest in property that the estate acquires after the commencement of the case.
      “(b) Property of the estate does not include—
      “(1) any power that the debtor may exercise solely for the benefit of an entity other than the debtor;
      “(2) any interest of the debtor as a lessee under a lease of nonresidential real property that has terminated at the expiration of the stated term of such lease before the commencement of the case under this title, and ceases to include any interest of the debtor as a lessee under a lease of nonresidential real property that has terminated at the expiration of the stated term of such lease during the case;
      “(3) any eligibility of the debtor to participate in programs authorized under the Higher Education Act of 1965 (20 U.S.C. 1001 et seq.; 42 U.S.C. 2751 et seq.), or any accreditation status or State licensure of the debtor as an educational institution;
      “(4) any interest of the debtor in liquid or gaseous hydrocarbons to the extent that—
      “(A)(i) the debtor has transferred or has agreed to transfer such interest pursuant to a farmout agreement or any written agreement directly related to a farmout agreement; and
      “(ii) but for the operation of this paragraph, the estate could include the interest referred to in clause (i) only by virtue of section 365 or 544(a)(3) of this title; or
      “(B)(i) the debtor has transferred such interest pursuant to a written conveyance of a production payment to an entity that does not participate in the operation of the property from which such production payment is transferred; and
      “(ii) but for the operation of this paragraph, the estate could include the interest referred to in clause (i) only by virtue of section 542 of this title; or
      “(5) any interest in cash or cash equivalents that constitute proceeds of a sale by the debtor of a money order that is made—
      “(A) on or after the date that is 14 days prior to the date on which the petition is filed; and
      “(B) under an agreement with a money order issuer that prohibits the commingling of such proceeds with property of the debtor (notwithstanding that, contrary to the agreement, the proceeds may have been commingled with property of the debtor), unless the money order issuer had not taken action, prior to the filing of the petition, to require compliance with the prohibition.
      “Paragraph (4) shall not be construed to exclude from the estate any consideration the debtor retains, receives, or is entitled to receive for transferring an interest in liquid or gaseous hydrocarbons pursuant to a farmout agreement.
      “(c)(1) Except as provided in paragraph (2) of this subsection, an interest of the debtor in property becomes property of the estate under subsection (a)(1), (a)(2), or (a)(5) of this section notwithstanding any provision in an agreement, transfer instrument, or applicable nonbankruptcy law—
      “(A) that restricts or conditions transfer of such interest by the debtor; or
      “(B) that is conditioned on the insolvency or financial condition of the debtor, on the commencement of a case under this title, or on the appointment of or taking possession by a trustee in a case under this title or a custodian before such commencement, and that effects or gives an option to effect a forfeiture, modification, or termination of the debtor’s interest in property.
      “(2) A restriction on the transfer of a beneficial interest of the debtor in a trust that is enforceable under applicable nonbankruptcy law is enforceable in a case under this title.
      “(d) Property in which the debtor holds, as of the commencement of the case, only legal title and not an equitable interest, such as amortgage secured by real property, or an interest in such a mortgage, sold by the debtor but as to which the debtor retains legal title to service or supervise the servicing of such mortgage or interest, becomes property of the estate under subsection (a)(1) or (2) of this section only to the extent of the debtor’s legal title to such property, but not to the extent of any equitable interest in such property that the debtor does not hold.” 11 U.S.C. § 541.

       Section 549 of the United States Bankruptcy Code provides in relevant part: “(a) Except as provided in subsection (b) or (c) of this section, the trustee may avoid a transfer of property of the estate—
      “(1) that occurs after the commencement of the case; and
      “(2)(A) that is authorized only under section 303(f) or 542(c) of this title; or
      “(B) that is not authorized under this title or by the court. . . .
      “(d) An action or proceeding under this section may not be commenced after the earlier of—
      “(1) two years after the date of the transfer sought to be avoided; or
      “(2) the time the case is closed or dismissed.” 11 U.S.C. § 549.


author: VERTEFEUILLE, J.

text:
    GARY B. DONAHUE v. TOWN OF SOUTHINGTON ET AL.
    (SC 16497)
    Sullivan, C. J., and Katz, Palmer, Verlefeuille and Zarella, Js.

      Argued October 30, 2001
    officially released March 26, 2002

      Richard S. Bartlett, for the appellants (defendants).

      Andrew J. Morrissey, for the appellee (plaintiff).
   Opinion

VERTEFEUILLE, J.

The principal issue presented in this appeal is whether General Statutes § 31-310 (b), which requires that the workers’ compensation commission use certain wage tables in calculating the average weekly earnings of injured employees, is limited in its application to those individuals who have contributions under the Federal Insurance Contributions Act (FICA) withheld from their pay. Because we hold that § 31-310 (b) is so limited, we also must address two additional issues, namely, whether the statute, as we interpret it, violates the equal protection clause of the fourteenth amendment of the federal constitution, and whether the named defendant, the town of Southington (town), has standing to raise such a constitutional challenge. We conclude that the town does have standing and that the statute is constitutionally sound. Accordingly, we uphold the decision of the compensation review board affirming the judgment of the workers’ compensation commissioner (commissioner) in favor of the plaintiff, Gary B. Donahue.

The following stipulated facts and procedural history are relevant to our resolution of this appeal. While employed by the town as a police officer, the plaintiff was injured in the performance of his official duties. The town’s workers’ compensation provider, the Connecticut Interlocal Risk Management Agency, which is also a defendant in this case, tendered a voluntary compensation agreement to the plaintiff. The compensation to be paid under this agreement was calculated using the wage tables promulgated pursuant to § 31-310 (b), which take into account amounts contributed to FICA. The plaintiff rejected the agreement, asserting that because he did not contribute to FICA, his compensation rate should not be determined using the tables promulgated pursuant to § 31-310 (b).

Thereafter, the commissioner ruled that the compensation tables promulgated pursuant to § 31-310 (b) apply only to employees who contribute to FICA. Accordingly, the commissioner calculated the plaintiffs compensation rate using a “manual calculation method” rather than the statutory compensation tables. As a result, the plaintiff received a higher level of compensation than he would have had his compensation rate been calculated using the tables promulgated pursuant to § 31-310 (b). The defendants appealed to the compensation review board, which affirmed the ruling of the commissioner. The defendants then appealed to the Appellate Court, and we transferred the case to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1.

The defendants claim that § 31-310 (b) should be interpreted to apply to all injured employees, not just those who are subject to FICA withholding. The defendants further claim that if § 31-310 (b) is construed to apply only to those employees who are subject to FICA withholding, the statute violates the equal protection clauses of the fourteenth amendment to the United States constitution and article first, § 20, of the Connecticut constitution. We find these claims to be without merit.

I

The first issue that we address is the scope of § 31-310 (b), which requires the workers’ compensation commission to promulgate wage tables pursuant to which workers’ compensation benefits are calculated. The issue that we must decide is whether those tables are to be used in calculating the benefits of all injured employees, or whether the tables are applicable only to those employees whose income is subject to deduction for contribution to FICA.

We begin by setting forth the standard of review that governs our examination of this issue. “It is well established that [although not dispositive, we accord great weight to the construction given to the workers’ compensation statutes by the commissioner and [the compensation] review board.” (Internal quotation marks omitted). Davis v. Norwich, 232 Conn. 311, 317, 654 A.2d 1221 (1995). However, “[w]e have determined . . . that the traditional deference accorded to an agency’s interpretation of a statutory term is unwarranted when the construction of a statute . . . has not previously been subjected to judicial scrutiny [or to] ... a governmental agency’s time-tested interpretation . . . .” (Internal quotation marks omitted.) Hartford v. Hartford Municipal Employees Assn., 259 Conn. 251, 261-62, 788 A.2d 60 (2002).

Prior to its decision in the present case, the compensation review board had never addressed the issue of whether the tables promulgated pursuant to § 31-310 (b) apply to all injured employees or only to those employees who contribute to FICA. Furthermore, this issue has never been the subject of judicial scrutiny. Accordingly, we do not defer to the conclusion of the compensation review board.

Because the issue that we must decide—whether the rate tables promulgated by the workers’ compensation commission pursuant to § 31-310 (b) apply to all injured employees or only to those employees who contribute to FICA—presents a question of statutory construction, our review is plenary. See Doyle v. Metropolitan Property & Casualty Ins. Co., 252 Conn. 79, 84, 743 A.2d 156 (1999). When construing a statute, “[o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Internal quotation marks omitted.) Fleming v. Garnett, 231 Conn. 77, 91-92, 646 A.2d 1308 (1994); State v. Metz, 230 Conn. 400, 409, 645 A.2d 965 (1994).

The defendants claim that the rate tables promulgated pursuant to § 31-310 (b) apply to all employees and are not restricted in their application to those whose incomes are subject to FICA withholding. Specifically, the defendants claim that under § 31-310 (b), employees whose incomes are not subject to a FICA deduction are treated as though the deduction was taken. The plaintiff argues that the plain language and legislative history of § 31-310 (b) indicate that the rate tables promulgated pursuant to that statute are applicable only to those employees who actually have a deduction taken for FICA contribution. We agree with the plaintiff.

We begin our analysis with the language of the statute in question. Section 31-310 (b) provides in relevant part: “[T]he chairman of the Workers’ Compensation Commission, in consultation with the advisory board, shall publish tables of the average weekly wage and seventy-five per cent of the average weekly wage after being reduced by any deduction for federal or state taxes, or both, and for the federal Insurance Contributions Act .... Such tables shall be conclusive for the purpose of determining seventy-five per cent of the average weekly earnings of an injured employee after such earnings have been reduced by any deduction for federal or state taxes, or both, and for the federal Insurance Contributions Act made from such employee’s total wages . . . .” (Emphasis added.)

The plain language of § 31-310 (b) indicates that the rate tables mandated therein apply only to those employees who actually have a FICA deduction taken from their income. Specifically, the phrases “have been reduced by any deduction” and “made from” indicate that the statute is applicable only to those employees who actually have a FICA contribution withheld from their income. There is no indication that the statute contemplates the use of the rate tables applying a hypothetical FICA deduction for those employees who are not subject to FICA withholding.

The defendants point to the language of the statute stating that the rate tables are “conclusive” in support of their argument that § 31-310 (b) applies to all employees. That language, however, when read in the context of the remainder of the statute, undermines rather than advances the defendants’ position. The statute, as a whole, provides that the rate tables “shall be conclusive for the purpose of determining seventy-five per cent of the average weekly earnings . . . after such earnings have been reduced by any deduction . . . made from” an injured employee’s total wages. (Emphasis added.) General Statutes § 31-310 (b). Thus, as we concludedpreviously, § 31-310 (b), by its plain language, applies only to those employees who actually contribute to FICA.

Our conclusion is bolstered by the legislative history of § 31-310 (b). Subsection (b) was added to § 31-310 by the passage of No. 91-339, § 30, of the 1991 Public Acts. The legislative history of that act is silent on the question of whether the rate tables promulgated pursuant to § 31-310 (b) were intended to apply to all employees. In 1993, however, the legislature again amended § 31-310; see Public Acts 1993, No. 93-228 (P.A. 93-228); and the legislative history of that act is instructive for purposes of the present appeal. One proposed version of the bill that ultimately became P.A. 93-228 contained language that would have required that “earnings of employees who do not have deductions taken from their wages for [FICA] ... be calculated as though the deduction had been taken.” Proposed House Bill No. 6939, § 19, p. 35.

In hearings before the labor committee in 1993, Jesse Frankl, then chairman of the workers’ compensation commission, testified as follows regarding the potential import of Proposed House Bill No. 6939: “Now, there are some employees in the state of Connecticut who don’t pay Social Security who pay into some other fund on the basis of prior legislation by the legislature. We want to make [the wage calculation] conform and be uniform for all parties, so that we can use our tables . . . for all injured workers.” Com. Joint Standing Committee Hearings, Labor and Public Employees, Pt. 4,1993 Sess., p. 1212. Thus, Frankl implicitly recognized that the tables promulgated pursuant to § 31-310 (b) were being used to calculate the compensation rates only of those employees who actually contributed to FICA. He testified in favor of Proposed House Bill No. 6939 precisely because the language contained therein would have resulted in the uniform application of the tables to all employees, including those who did not actually make FICA contributions.

Ultimately, however, Proposed House Bill No. 6939 was rejected. In discussing the version of P.A. 93-228 that eventually was adopted, Representative Michael Lawlor stated: “I wanted to clarify what exactly is in this amendment and what’s not in this amendment because over the past month or so there’s been quite a few different amendments floating around and I think there’s been some confusion about what was in some of those and what’s in this one.” 36 H.R. Proc., Pt. 18, 1993 Sess., p. 6252. Lawlor stated further: “There is no deduction for social security payments which are not paid by certain employees. For example, some Connecticut State Police troopers do not pay into social security. Some of the previous amendments that have been considered, would have required a deduction for that amount, even though those employees do not pay into social security.” (Emphasis added.) Id., pp. 6254-55. Thus, the legislature considered, and explicitly rejected, an amendment to § 31-310 (b) that would apply the rate tables promulgated pursuant to that statute to all injured employees. We cannot, by judicial fiat, interpret § 31-310 (b) in a way that effectively would insert into the statute language the legislature explicitly rejected. We therefore agree with the compensation review board that § 31-310 (b) does not apply to employees, such as the plaintiff, who do not contribute to FICA.

II

Because we conclude that the rate tables promulgated pursuant to § 31-310 (b) are applicable only to those employees whose incomes are actually subject to FICA deductions, we must address the defendants’ claim that § 31-310 (b) violates the equal protection clauses of the fourteenth amendment to the United States constitution, and article first, § 20, of the Connecticut constitution. Before we address this issue, however, me must resolve the threshold issue of whether the town has standing to challenge the constitutionality of § 31-310 (b). The plaintiff argues that the town does not have standing because it is attempting to bring a constitutional claim on behalf of a third party and because it is a statutorily created entity. We find these arguments unpersuasive.

The plaintiff first claims that the town improperly is trying to assert the constitutional rights of a plaintiff. In advancing this argument, the plaintiff relies on “[t]he general rule . . . that a litigant may only assert his own constitutional rights or immunities.” Shaskan v. Waltham Industries Corp., 168 Conn. 43, 49, 357 A.2d 472 (1975).

In the present case, the town claims that it has been injured by the operation of § 31-310 (b). Specifically, the town claims that it has sustained economic injury as a result of the operation of § 31-310 (b), because it has been required unconstitutionally to pay a higher level of compensation to the plaintiff than it would pay if his compensation were calculated in accordance with the wage tables promulgated pursuant to § 31-310 (b). Thus, the town is clearly basing its claim on its own injury, rather than the injury of the plaintiff or some third party. That is a sufficient stake in the outcome of this case to confer standing upon the town.

The plaintiff next contends that the town, as a statutorily created entity, cannot challenge the constitutionality of a statute. We disagree. “The issue of standing arises out of the perceived inconsistency of allowing a municipality, which is a creation of state legislation, to challenge the constitutionality of other acts of legislation by its creator.” Connecticut Light & Power Co. v. Norwalk, 179 Conn. 111, 114, 425 A.2d 576 (1979). This court previously has held “as a general rule that [t]owns . . . are creatures of the state, and though they may question the interpretation, they cannot challenge the legality, of legislation enacted by their creator.” (Internal quotation marks omitted.) Berlin v. Santaguida, 181 Conn. 421, 424, 435 A.2d 980 (1980). However, “[a]n exception to this rule has been carved out to allow a municipality, adversely affected by a statute, which is properly in court on a nonconstitutional question to challenge the constitutionality of that statute.” Id.

We conclude that the facts of this case fall squarely within the exception to the general rule articulated previously. The town in this case is litigating a nonconstitutionai issue, namely, the proper construction of § 31-310 (b), and is affected adversely by our construction of that statute. Thus, as this court previously has stated, “a municipality that is in court on nonconstitutional questions, as to which this question of standing is not a barrier, often has a legitimate stake in full exploration of the constitutionality of contested legislation.” Connecticut Light & Power Co. v. Norwalk, supra, 179 Conn. 115. Therefore, the town has standing to challenge the constitutionality of § 31-310 (b).

We turn now to the defendants’ contention that § 31-310 (b), as we have interpreted it, violates the equal protection clauses of the fourteenth amendment to the United States constitution and article first, § 20, of the Connecticut constitution. Specifically, the defendants claim that the classification established by § 31-310 (b), under which employees whose incomes are subject to FICA deductions ultimately receive a lower rate of compensation than those employees who are not subject to such deductions, is arbitrary and without a rational basis. We disagree.

“We note at the outset that the challenge of a statute on constitutional grounds always imposes a difficult burden on the challenger. We have consistently held that every statute is presumed to be constitutional . . . .” Faraci v. Connecticut Light & Power Co., 211 Conn. 166, 168, 558 A.2d 234 (1989).

“In order to analyze the constitutionality of [the challenged statutory scheme], we must first detail the principles applicable to equal protection analysis. When a statute is challenged on equal protection grounds, whether under the United States constitution or the Connecticut constitution, the reviewing court must first determine the standard by which the challenged statute’s constitutional validity will be determined. If, in distinguishing between classes, the statute either intrudes on the exercise of a fundamental right or burdens a suspect class of persons, the court will apply a strict scrutiny standard wherein the state must demonstrate that the challenged statute is necessary to the achievement of a compelling state interest. ... If the statute does not touch upon either a fundamental right or a suspect class, its classification need only be rationally related to some legitimate government purpose in order to withstand an equal protection challenge.” (Internal quotation marks omitted.) Barton v. Ducci Electrical Contractors, Inc., 248 Conn. 793, 813-14, 730 A.2d 1149 (1999).

It is undisputed that the legislation at issue neither creates a suspect classification nor impinges upon a fundamental right for the purposes of the equal protection clause. Thus, we analyze the defendants’ constitutional challenge to § 31-310 (b) utilizing the familiar rational basis test.

Our analysis under the rational basis test is well settled. We must “decide whether the classification and disparate treatment inherent in a statute bear a rational relationship to a legitimate state end and are based on reasons related to the accomplishment of that goal. Zapata v. Burns, 207 Conn. 496, 507, 542 A.2d 700 (1988); Daily v. New Britain Machine Co., 200 Conn. 562, 577, 512 A.2d 893 (1986). In general, the Equal Protection Clause is satisfied so long as there is a plausible policy reason for the classification, see United States Railroad Retirement [Board] v. Fritz, 449 U.S. 166, 174, 179 [101 S. Ct. 453, 66 L. Ed. 2d 368 (1980), reh. denied, 450 U.S. 960, 101 S. Ct. 1421, 67 L. Ed. 2d 385 (1981)], the legislative facts on which the classification is apparently based rationally may have been considered to be true by the government decisionmaker, see Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 464 [101 S. Ct. 715, 66 L. Ed. 2d 659, reh. denied, 450 U.S. 1027, 101 S. Ct. 1735, 68 L. Ed. 2d 222 (1981)], and the relationship of the classification to its goal is not so attenuated as to render the distinction arbitrary or irrational, see Cleburne v. Cleburne Living Center, Inc., [473 U.S. 432, 446, 105 S. Ct. 3249, 87 L. Ed. 2d 313 (1985)]. Nordlinger v. Hahn, 505 U.S. 1, 11, 112 S. Ct. 2326, 120 L. Ed. 2d 1 (1992). . . . Florestal v. Government Employees Ins. Co., [236 Conn. 299, 314—15, 673 A.2d 474 (1996)].” (Internal quotation marks omitted.) Barton v. Ducci Electrical Contractors, Inc., supra, 248 Conn. 814-15. We emphasize that under this analysis, the legislature is not required to articulate the purpose or rationale for its classification. “The test . . . is whether this court can conceive of a rational basis for sustaining the legislation; we need not have evidence that the legislature actually acted upon that basis.” (Emphasis in original; internal quotation marks omitted.) Id., 817.

We begin our analysis with a brief review of the function of § 31-310 (b). This statute requires that workers’ compensation benefits for employees whose incomes are subject to a FICA deduction be calculated using certain wage tables promulgated by the workers’ compensation commission. The statute specifies that the calculations be made after the employees’ income is reduced for federal and state taxes and for contributions to FICA. As we discussed previously herein, however, those tables are not applicable to employees, such as the plaintiff, who do not contribute to FICA. See part I of this opinion. Those employees, instead of contributing to FICA, contribute to pension or other retirement plans, or make no pension or retirement contributions at all. There is, however, no statutory mechanism that provides for the deduction of those contributions in calculating workers’ compensation benefits for those employees. As a result, employees who do not contribute to FICA receive a somewhat higher rate of compensation than those who do. The defendants argue that this result is arbitrary and irrational in violation of the equal protection clause. We disagree.

The most recent data compiled by the Office of Research, Evaluation and Statistics of the Social Security Administration indicate that in 1998, the overwhelming majority of employees who resided in Connecticut—approximately 96.1 percent of them— contributed to FICA. Because the amount of this contributton is fixed and predetermined, promulgating rate tables that take into account the amount of the FICA contribution in calculating compensation rates is a simple matter.

As the defendants point out, however, there are many different categories of employees who do not contribute to FICA. Instead, these employees contribute to various pension plans other than FICA, and the amount of the contribution differs depending upon the type of pension plan in which the employee participates. If the amount of each employee’s contribution were to be deducted in order to calculate the compensation rate, the calculations would have to be made on a case-by-case basis, using a formula that takes into account this variety of contribution amounts.

The legislature rationally could have decided that it would be inefficient and unduly burdensome to require the case-by-case deduction of contribution amounts in calculating compensation rates for these employees. The rationality of this decision is borne out by the fact that, as we discussed previously, the scheme established by § 31-310 (b) actually applies to the great majority of workers in Connecticut. Thus, the legislature could have concluded that the relatively small economic benefit that would result from requiring that the various pension contributions of all employees be deducted in calculating compensation amounts would be outweighed by the difficulty of administering such a scheme. As this court has recognized, the legislature has a legitimate interest in ensuring the efficient administration of the workers’ compensation system. See Luce v. United Technologies Corp., 247 Conn. 126, 145, 717 A.2d 747 (1998).

Because there is a plausible reason for the legislature’s action, the fact that this scheme ultimately results in a somewhat higher compensation rate for certain employees is of no constitutional import. See Farad v. Connecticut Light & Power Co., supra, 211 Conn. 169. “[W]e emphasize that, like the United States Supreme Court, we have consistently deferred to legislative determinations concerning the desirability of statutory classifications affecting the regulation of economic activity and the distribution of economic benefits.” (Internal quotation marks omitted.) Id.

The defendants further argue that the purpose of § 31-310 (b) is to reduce the costs of the workers’ compensation system. They claim that the classification established by § 31-310 (b) is irrational because it actually hinders this purpose by not requiring that FICA equivalent amounts be deducted when calculating the compensation rate of employees whose incomes are not subject to FICA deduction. We disagree.

As we discussed previously herein, § 31-310 (b) applies to the overwhelming majority of Connecticut employees. Thus, it stated that the classification established by that statute thwarts the legislative purpose of reducing costs when the statute actually applies to such a large percentage of Connecticut employees.

The defendants’ arguments, if accepted, would require the legislature, as a matter of constitutional mandate, to choose between establishing a scheme that provides for the deduction of FICA and pension contributions for all employees when calculating compensation benefits, or not establishing such a scheme at all. That is the kind of choice that both this court and the United States Supreme Court have held repeatedly that a legislature, in the area of social and economic policy-making, is not required to make under the equal protection clause. “As the United States Supreme Court has reminded us, a state, consistent with the equal protection clause, may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind. . . . The legislature may select one phase of one field and apply a remedy there, neglecting the others. . . . Particularly with respect to social welfare programs, so long as the line drawn by the State is rationally supportable, the courts will not interpose their judgment as to the appropriate stopping point. [T]he Equal Protection Clause does not require that a State must choose between attacking every aspect of a problem or not attacking the problem at all.” (Internal quotation marks omitted.) Barton v. Ducci Electrical Contractors, Inc., supra, 248 Conn. 818-19.

We therefore conclude that § 31-310 (b) does not violate the equal protection clause of the fourteenth amendment to the United States constitution.

The judgment is affirmed and the case is remanded to the compensation review board with direction to establish the rate of interest and to calculate the amount of the award of interest pursuant to General Statutes § 31-301c (b).

In this opinion the other justices concurred.

       FICA is codified at 26 U.S.C. § 3101 et seq. MCA contributions include contributions to social security and medicare pursuant to 26 U.S.C. § 3101.

       The compensation review board awarded the plaintiff interest as required by General Statutes § 31-301c (b), which provides: “Whenever an employer or his insurer appeals a commissioner’s award, and upon completion of the appeal process the employer or insurer loses such appeal, the Compensation Review Board or the Appellate Court, as the case may be, shall add interest on the amount of such award affirmed on appeal and not paid to the claimant during the pendency of such appeal, from the date of the original award to the date of the final appeal decision, at the rate prescribed in section 37-3a.” Accordingly, we remand the case to the compensation review board to establish the rate of interest and to calculate the amount of the award of interest.

       The plaintiff contributed instead to a police pension fund.

       As a result of the commissioner’s decision that the tables promulgated pursuant to § 31-310 (b) did not apply to the plaintiff, the plaintiff received weekly compensation in the amount of $585. The plaintiffs compensation rate calculated using the tables promulgated pursuant to § 31-310 (b) would have been $526.59 per week.

       Section 1 of the fourteenth amendment to the United States constitution provides in relevant part: “No State shall . . . deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

       Article first, § 20, of the Connecticut constitution, as amended by articles five and twenty-one of the amendments, provides: “No person shall be denied the equal protection of the law nor be subjected to segregation or discrimination in the exercise or enjoyment of his or her civil or political rights because of religion, race, color, ancestry, national origin, sex or physical or mental disability.”

       The defendants have offered no analysis asserting that the equal protection clause of the state constitution offers greater protection than the federal equal protection clause. “If a party does not provide an independent analysis asserting the existence of greater protection under the state constitutional provision than its federal counterpart ... we will not of our own initiative address that question. . . . Accordingly, the federal equal protection standard is considered prevailing for the purposes of our review of both the state and federal equal protection claims in this case.” Barton v. Ducci Electrical Contractors, Inc., 248 Conn. 793, 812-13 n. 15, 730 A.2d 1149 (1999).

       FICA contributions are fixed at 6.2 percent for social security and 1.45 percent for medicare pursuant to 26 U.S.C. § 3101.

       For example, town teachers hired subsequent to 1986 do not contribute to social security and contribute 1.45 percent to medicare. The town’s police officers do not contribute to social security but instead contribute 6 percent of their gross income to the police pension fund. Police officers hired prior to 1986 do not contribute to medicare, while those hired subsequent to 1986 contribute 1.45 percent to medicare.


author: SULLIVAN, C. J.

text:
    STATE OF CONNECTICUT v. MICHAEL BROWN
    (SC 16423)
    Sullivan, C. J., and Norcott, Katz, Palmer and Ronan, Js.

      Argued October 24, 2001
    officially released March 26, 2002

      William B. Westcott, special public defender, for the appellant (defendant).

      Leon F. Dalbec, Jr., senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Elpedio Vitale, senior assistant state’s attorney, for the appellee (state).
   Opinion

SULLIVAN, C. J.

The defendant, Michael Brown, appeals from the judgment of the Appellate Court upholding an enhanced penalty imposed pursuant to General Statutes § 53-202 pursuant to his convictions of robbery in the first degree in violation of General Statutes §§ 53a-134 (a) (4) and 53a-8, conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 (a) and 53a-134 (a) (4), and larceny in the second degree in violation of General Statutes §§ 53a-123 (a) (3) and 53a-8. State v. Brown, 60 Conn. App. 487, 760 A.2d 111 (2000). The sole issue in this certified appeal is whether the trial court’s failure to instruct the jury on the definition of a firearm under General Statutes § 53a-3 (19), when it instructed the jury on the elements of commission of a class A, B or C felony with a firearm under General Statutes § 53-202k, violated the defendant’s due process rights. We conclude that it did not, and, accordingly, we affirm the judgment of the Appellate Court.

The jury reasonably could have found the following facts. On July 27, 1996, at approximately 2:30 a.m., the victim, Alan Goodsen, attempted to visit his girlfriend at her residence in New Haven. State v. Brown, supra, 60 Conn. App. 489. After receiving no response at the house, the victim drove to a public telephone at the Olympia Diner on Ella Grasso Boulevard. The victim parked his car, left the engine running and attempted to call his girlfriend. Id.

While the victim was on the telephone, a Chevrolet Corsica with three occupants drove up and parked next to the victim’s car. The victim hung up the telephone and walked between the cars toward the driver’s door of his car. The Corsica was pointed in the direction opposite to that of the victim’s car, so that the victim was between the driver’s side of his car and the passenger side of the Corsica. The defendant, who was sitting in the front passenger seat of the Corsica, asked the victim if the telephone was working. The victim replied, “ ‘Yes,’ ” and continued toward the door of his own car. Id. As the victim began to open the door, the defendant got out of the Corsica with a gun in his hand. The defendant approached the victim, stood facing him and put the gun to his head. A second individual, who had been sitting in the rear passenger seat of the Corsica and who was also holding a gun, got out of the Corsica and stood behind the victim. Id.

The defendant said to the victim, “ ‘[Y]ou already know what time it is, just run it,’ ” which the victim testified was slang for “ ‘you already know it’s a robbery.’ ” Id. Then, holding the gun to the victim’s head, the defendant patted him down, probed his pockets and took his wallet, which contained about $50. The victim was looking face-to-face at the defendant throughout the robbeiy. Id.

When the defendant and the second individual discovered that the victim only had $50 in his wallet, the individual standing behind the victim said to the defendant, “ ‘Just pop him. Fuck it.’ ” Id., 490 n.2. Recognizing this as an instruction by the second perpetrator to the defendant to shoot the victim, the victim responded, “ ‘You don’t have to shoot me. Let me go. Just take the car.’ ” Id.

The defendant instructed the victim to “ ‘go ahead and walk, don’t look back.’ ” Id., 490. The victim complied by walking away with his hands on top of his head. When the victim did look back at the defendant, the defendant threatened, “ ‘Do you want to get shot,’ ” to which the victim replied, “ ‘Don’t shoot.’ ” Id. The defendant then got into the driver’s seat of the victim’s car and the second individual got into the passenger seat. The Corsica and the victim’s black Mazda sped away. Id.

The victim returned to the telephone, called his mother and told her what had happened. She reported the crime to the New Haven police department. Several minutes later, Officer Robert Losty of the New Haven police department arrived at the Olympia Diner. The victim provided tíre officer with details of the robbery and a description of the defendant and the vehicles involved. Id. Losty transmitted this information over his police radio.

Several police departments, including those in Milford and New Haven, received this information. Shortly thereafter, a Milford police officer spotted a black Mazda matching the description of the victim’s car traveling southbound on Interstate 95 near a blue Chevrolet Corsica. The police officer followed the black Mazda, read the license plate and positively identified it as the victim’s car. When the Milford officer activated his overhead lights in an effort to pull over the Mazda, the defendant attempted to evade the police by switching from lane to lane, shutting off the headlights and accelerating to speeds close to 100 miles per hour. Id. The chase proceeded on and off the highway until the defendant finally lost control of the victim’s car, spun out and stalled.

The defendant and the second perpetrator jumped out of the victim’s car, and members of the Milford police department chased both men on foot. During the chase, the second individual fired several shots in the direction of the police, but the police did not immediately return fire. When the defendant and the second individual separated, the police chased and exchanged gunfire with the second individual, who escaped by committing another carjacking. Because the police last had seen the defendant running along Hollister Avenue, the police searched the yards of the houses on that street. The defendant was apprehended while attempting to enter the back door of one of those houses. At the scene of the arrest, the Milford police officer who first spotted the vehicles on Interstate 95 identified the defendant as the driver of the black Mazda. Later, at the Milford police station, the victim identified the defendant as the person who had committed the robbery. The defendant’s fingerprints were later found and identified on the driver’s side window of the victim’s car.

The defendant was not armed at the time of his arrest. The second individual, who escaped from the police on the night of the robbery, was later identified and his home was searched. During the search, the police discovered two firearms, both matching the victim’s description of the guns used in the robbery.

Following a jury trial, the defendant was convicted of robbery in the first degree, conspiracy to commit robbery in the first degree, and larceny in the second degree. The jury also found that the defendant had used a firearm in the commission of the crime, causing him to be subject to an enhanced penalty pursuant to § 53-202k.

The defendant was thereafter sentenced to a total effective term of twenty-five years imprisonment. The defendant appealed to the Appellate Court claiming that “the trial court improperly [had] instructed the jury (1) on the standard of proof beyond a reasonable doubt, (2) on the definition of robbery and (3) concerning the findings necessary to apply the sentence enhancement provision of § 53-202k.” Id., 488. The Appellate Court rejected all three claims and affirmed the judgment of the trial court. Id., 487. We granted the defendant’s petition for certification to appeal to this court limited to the question of whether the trial court was required to define “firearm” when instructing the jury on the sentence enhancement provision of § 53-202k. State v. Brown, 255 Conn. 905, 762 A.2d 910 (2000).

At trial the defendant neither objected to the charge as given by the trial court nor specifically requested that the jury be instructed on the statutory definition of a firearm. Practice Book § 42-16. Accordingly, his claim is unpreserved, and we review it under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). In Golding, we held that “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has faded to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” Id., 239-40. “In the absence of any one of these conditions, the defendant’s claim will fail. The appellate tribunal is free, therefore, to respond to the defendant’s claim by focusing on whichever condition is most relevant in the particular circumstances.” Id., 240.

In the present case, the record is adequate for review of the disputed jury charge, satisfying the first criterion of Golding. The defendant’s claim also satisfies the second criterion of Golding because “[a]n improper instruction on an element of an offense ... is of constitutional dimension.” (Internal quotation marks omitted.) State v. Austin, 244 Conn. 226, 235, 710 A.2d 732 (1998). The defendant’s claim fails under Golding's third prong, however, because we conclude that the trial court’s failure to define firearm in the instructions to the jury was not a constitutional violation that deprived the defendant of a fair trial.

“It is well established that [a] charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding them to a correct verdict in the case.” (Internal quotation marks omitted.) State v. Dyson, 217 Conn. 498, 501, 586 A.2d 610 (1991). Therefore, “[t]he charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge.” (Internal quotation marks omitted.) Id. “The test to be applied to any part of a charge is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result.” (Internal quotation marks omitted.) Id. “As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury . . . we will not view the instructions as improper.” (Internal quotation marks omitted.) State v. Denby, 235 Conn. 477, 485, 668 A.2d 682 (1995).

The defendant claims that the trial court’s failure to instruct the jury on the definition of a firearm deprived him of a fair trial. There are two elements to § 53-202k. The first element is that the defendant has committed a class A, B or C felony. The instructions to the jury regarding § 53-202k were given after the jury returned a guilty verdict on robbery in the first degree, a class B felony, and larceny in the second degree, a class C felony. This verdict triggered the trial court’s instructions on sentence enhancement and made it unnecessary to instruct the jury specifically on the first element of § 53-202k. The second element of § 53-202k is that the defendant used, was armed with and threatened the use of, displayed, or represented by his words that he possessed a firearm as “firearm” is defined in § 53a-3 (19). Accordingly, in an interrogatory, the trial court asked the jury to determine whether the defendant “was armed with and threatened the use of or displayed or represented by his words or conduct that he possessed a firearm,” when he committed the robbery and larceny. The defendant did not request that the trial court instruct the jury on the definition of a firearm as defined in § 53a-3 (19). The jury responded affirmatively and unanimously to the trial court’s interrogatory.

The defendant claims that the trial court’s failure to instruct the jury on the § 53a-3 (19) definition of a firearm rendered the jury instruction constitutionally defective. Although it is generally preferable for a jury to be instructed on the statutoiy definition of a word where one exists, a trial court is not necessarily required to do so. State v. Spillane, 255 Conn. 746, 755, 770 A.2d 898 (2001). Specific words in a statute need not be defined if they are being used and understood in their ordinary meaning. See id.; State v. Maresca, 173 Conn. 450, 460, 377 A.2d 1330 (1977). “[T]he definition of words in our standard dictionaries is taken as a matter of common knowledge which the jury is supposed to possess.” State v. Asherman, 193 Conn. 695, 737, 478 A.2d 227 (1984), cert. denied, 450 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985). If this commonly understood meaning of the word, as found in a dictionary and presumably applied by the jury, is substantially the same as the statutory definition, then the failure of the trial court to give the statutory definition could not have had any effect on the jury deliberations. See State v. Spillane, supra, 755.

Section 53a-3 (19) provides that, “ ‘Firearm’ means any sawed-off shotgun, machine gun, rifle, shotgun, pistol, revolver or other weapon, whether loaded or unloaded from which a shot may be discharged . . . .” This definition requires that a firearm be (1) a weapon, with a list of examples, and (2) capable of discharging a shot. The commonly understood meaning of “firearm,” found in Merriam-Webster’s Collegiate Dictionary (10th Ed.), is “a weapon from which a shot is discharged by gunpowder . . . .” This commonly understood meaning of the word comprises the same two elements as the statutory definition—a firearm is a weapon capable of discharging a shot. Therefore, the dictionary definition that we presume was applied by the jury and the definition found in § 53a-3 (19) are essentially the same. Under these circumstances, no constitutional violation could have resulted from the trial court’s failure to give the statutory definition to the jury.

The defendant also argues that, because the statutory definition of a firearm is a weapon from which a shot may be discharged, the state was required to prove that the gun the defendant used in the robbery was capable of discharging a shot. The state contends that the defendant represented by his words and conduct that the weapon in his hand was capable of discharging a shot and, therefore, was a firearm as defined by our statutes, which in turn makes the defendant subject to the sentence enhancement provision of § 53-202k. The defendant counters that it is also possible that the jury applied § 53-202k because it found that the defendant, “use[d], or [was] armed with and threaten[ed] the use of, or display[ed]” a firearm; General Statutes § 53-202k; in which case the state was required to prove that the defendant used a weapon from which a shot could be discharged.

We conclude that the state was not required to prove that the gun held by the defendant was capable of discharging a shot. First, the statements by the defendant and the second perpetrator relative to shooting the victim were representations that the gun in the defendant’s hand could be fired, and therefore representations that the gun was a firearm as defined by statute. Because of those representations, the jury properly could have applied § 53-202k without the state having proved that the gun could be fired. Second, the sentence enhancement provision properly may be applied to the defendant because we do not distinguish between the principal and an accessory when applying the sentence enhancement provision for the use of a firearm in the commission of a crime. See State v. Davis, 255 Conn. 782, 792, 772 A.2d 559 (2001) (“[T]he defendant is subject to the enhancement penalty that the principal also would have received had he been caught and convicted. For purposes of legal analysis, it is irrelevant that the defendant did not actually possess the gun.”). In the present case, the second perpetrator fired several shots at the police during the foot chase, which establishes that he used a weapon from which a shot could be discharged. The second perpetrator’s gun, therefore, satisfied the statutory definition of a firearm and both the second perpetrator and the defendant are subject to sentence enhancement under § 53-202k because the second perpetrator “use[d], or [was] armed with and threatened] the use of, or displayed] ” a firearm. Accordingly, we conclude that the defendant’s claim fails under the third prong of State v. Golding, supra, 213 Conn. 239-40.

The judgment of the Appellate Court is affirmed.

In this opinion the other justices concurred.

       General Statutes § 53-202k provides: “Any person who commits any class A, B or C felony and in die commission of such felony uses, or is armed with and threatens the use of, or displays, or represents by his words or conduct that he possesses any firearm, as defined in section 53a-3, except an assault weapon, as defined in section 53-202a, shall be imprisoned for a term of five years, which shall not be suspended or reduced and shall be in addition and consecutive to any term of imprisonment imposed for conviction of such felony.”

       General Statutes § 53a-134 (a) provides in relevant part: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery as defined in section 58a-133 or of immediate flight therefrom, he or another participant in the crime ... (4) displays or threatens the use of what he represents by his words or conduct to be a pistol, revolver, rifle, shotgun, machine gun or other firearm . . .

       General Statutes § 53a-8 (a) provides: “A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender.”

         General Statutes § 53a-48 (a) provides: “A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.”

       General Statutes § 53a-123 (a) provides in relevant part: “A person is guilty of larceny in the second degree when he commits larceny, as defined in section 53a-119, and ... (3) the property, regardless of its nature or value, is taken from the person of another . . . .”

       General Statutes § 53a-3 (19) provides: “ ‘Firearm’ means any sawed-off shotgun, machine gun, rifle, shotgun, pistol, revolver or other weapon, whether loaded or unloaded from which a shot may be discharged . . . .”

       We granted the defendant’s petition for certification to appeal to this court, limited to the following issue: “Whether the Appellate Court correctly determined that it was not necessary for the trial court to instruct the jury on the definition of a firearm under General Statutes § 53a-3 as part of the trial court’s instructions on the sentence enhancement provisions of General Statutes § 53-202k?” State v. Brown, 255 Conn. 905, 906, 762 A.2d 910 (2000).

       While technically commission of a class A, B or C felony with a firearm is not a separate offense, sentence enhancement under § 53-202k triggers constitutional due process protections. State v. Montgomery, 254 Conn. 694, 737, 000000759 A.2d 995 (2000) (holding trial court violated defendant’s due process rights by improperly failing to instruct jury on elements of § 53-202k, although failure was harmless error); State v. Velasco, 253 Conn. 210, 214, 751 A.2d 800 (2000) (vacating sentence enhancement because trial court violated defendant’s due process rights by failing to instruct jury on § 53-202k); State v. Gerardi, 237 Conn. 348, 356-61, 677 A.2d 937 (1996) (holding trial court violated due process safeguards by instructing that presence of unregistered gun in vehicle created rebuttable presumption gun was used offensively in commission of crime).

       In State v. Velasco, 253 Conn. 210, 214, 751 A.2d 800 (2000), this court concluded that § 53-202k requires the jury, rather than the trial court, to decide whether the defendant used or threatened to use a firearm when committing the underlying crime. Failure to instruct the jury on § 53-202k, however, does not automatically result in a constitutional violation that deprives a defendant of a fair trial. See State v. Montgomery, 254 Conn. 694, 737-38, 759 A.2d 995 (2000) (court’s failure to charge on elements of § 53-202k was harmless error because jury findings included conclusion defendant shot victim).

       The victim testified that the defendant and the second perpetrator each made references to shooting the victim during the robbery.

       Not only did the defendant in the present case specifically represent that he had a gun, but his statement and that of the second perpetrator also represented that the gun held by the defendant could be fired. Such explicit representations that a gun is capable of firing a shot, however, may not always be necessary in order to apply the sentence enhancement provision of § 53-202k. It may be that brandishing a gun as a show of force during a crime indicates to the victim that the gun may be fired and therefore satisfies the statutory definition of a firearm and subjects a defendant to sentence enhancement. That is not the question before us in this case, however, and we leave it for a later time.