author: Callahan, J.

text:
    Chestnut Realty, Inc. v. Commission on Human Rights and Opportunities et al.
    (12699)
    Peters, C. J., Shea, Callahan, Ment and A. Aronson, Js.
    Argued June 5
    decision released September 2, 1986

      Thomas P. Clifford III, assistant attorney general, with whom were Emily M. Resnik, law student intern, and, on the brief, Joseph I. Lieberman, attorney general, and Robert W. Garvey, assistant attorney general, for the appellant (named defendant).

      David R. Schaefer, with whom was Hillard N. Einbinder, for the appellee (plaintiff).
   Callahan, J.

This is an appeal by the commission on human rights and opportunities (hereinafter CHRO) on behalf of the complainant Kenneth Barboza, from a judgment of the Superior Court, reversing the decision of a CHRO hearing officer. The dispositive issue is the nature of the evidentiary burdens placed on the complainant and respondent in a housing discrimination action. The tribunal found that Chestnut Realty, Inc. (hereinafter Chestnut Realty), had discriminated against Barboza in violation of General Statutes § 53-35 (a) by refusing to sell him an unimproved building lot located in Woodbridge, because of his race. The CHRO appeals the judgment of the Superior Court claiming that the court erred in: (1) exercising jurisdiction over the appeal; (2) finding that the hearing officer had applied an improper standard for determining whether the complainant had made out a prima facie case; (3) finding that the hearing officer had shifted the burden of proof improperly to the respondent to show a legitimate nondiscriminatory purpose for refusing to sell to the complainant; and (4) measuring the complainant’s damages. We conclude that the trial court erred in finding that the complainant had not made out a prima facie case of discrimination. We find no error on the CHRO’S other claims.

After conducting a formal hearing, the hearing officer found the following facts. Chestnut Realty was a Connecticut corporation wholly owned by Marvin and Norma Schaefer. The corporation was engaged in the business of buying, selling, and developing real estate. Chestnut Realty in September, 1977, was the owner of lot 7 located in the subdivision known as Chestnut Lane Estates in Woodbridge. Marvin Schaefer constructed a house on lot 5 within this same subdivision, and listed it with a real estate agent on April 19,1972. Prior to January, 1973, the Schaefers had been living in a house on Sunbrook Road in Woodbridge. In January, 1973, when the Schaefers still had not sold the house on lot 5, they sold their home on Sunbrook Road in Woodbridge and moved into the house on lot 5. The house on lot 5 remained on the market until March, 1981. It was the Schaefers’ plan to build a smaller house on lot 7 within the subdivision as soon as they found a buyer for their home on lot 5. As of September 11, 1977, the Schaefers had not received an acceptable offer on lot 5.

Shortly before September 11,1977, Kenneth Arrington, a real estate agent and the brother-in-law of the complainant, Kenneth Barboza, telephoned Schaefer concerning the availability of residential building lots within the Chestnut Lane Estates subdivision. Schaefer said that he had some lots for sale and an appointment was arranged to view the lots on September 11,1977. On that day, the complainant and his wife were told by Schaefer that both lots 7 and 8 were for sale. During the meeting, the complainant viewed both lots but spent the majority of the time discussing the solar home capabilities of lot 7.

Following the meeting, Schaefer had a discussion with his wife concerning the sale of lot 7 during which Norma Schaefer reiterated her desire to build a home for themselves on the lot. The complainant’s agent contacted Schaefer on September 12,1977, to inform him that the complainant intended to make an offer on lot 7. On the same day two or three couples came to view the house on lot 5; however, no offers to purchase were forthcoming as a result of these visits. On September 13,1977, the complainant’s agent called and spoke with Norma Schaefer. He told her that the complainant had accepted the asking price on lot 7 and that he wished to place a deposit on lot 7. Norma Schaefer replied that the lot was no longer for sale. On September 16,1977, the complainant, who is black, filed a complaint with CHRO alleging a violation of the Public Accommodations Act, General Statutes (Rev. to 1977) § 53-35 (a) (now General Statutes § 46a-64). The title to lot 7 was subsequently transferred from Chestnut Realty to the Schaefers on June 14, 1979, for $40,000.

On the basis of these and other facts, the hearing officer concluded that the respondent had discriminated against the complainant because of his race in violation of General Statutes (Rev. to 1977) § 53-35 (a). On April 20, 1983, the tribunal ordered the defendant to cease and desist in its violations of § 53-35 (a), to pay the complainant actual and compensatory damages, and to offer for sale a lot within the subdivision known as Chestnut Lane Estates similar to lot 7 at the price for which lot 7 was offered in September, 1977.

I

Before we address the CHRO’s claim concerning the evidentiary burdens in a housing discrimination case, we must dispose of its claim that the Superior Court lacked jurisdiction over the appeal from the CHRO’s decision. First, the CHRO argues that Chestnut Realty improperly commenced its appeal by using a Form 103.1 (JD-CV-1) writ of summons, which is prohibited by Practice Book § 49. 345678Practice Book § 49 was amended in 1978 to prohibit the use of Form 103.1 in, inter alia, administrative appeals. The court procedure for taking an appeal from an administrative decision is by complaint and citation as set forth in Practice Book Form 204.7. The motion to dismiss on this ground was denied by the Superior Court, Celotto, J. We conclude, under the circumstances of this case, that Chestnut Realty’s lack of compliance with Practice Book § 49 was not fatal to its appeal from the CHRO’s decision.

We note at the outset that appeals from administrative agencies exist only under statutory authority. Farricielli v. Personnel Appeal Board, 186 Conn. 198, 201, 440 A.2d 286 (1982). “A statutory right to appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created.” Id. We have recognized, therefore, that the absence of a citation, signed by a competent authority, as required by General Statutes § 4-183 (b), renders an administrative appeal fatally defective. Village Creek Homeowners Assn. v. Public Utilities Commission, 148 Conn. 336, 338-40, 170 A.2d 732 (1961). We have also held mandatory the provisions of the Uniform Administrative Procedure Act (UAPA), General Statutes § 4-166 et seq., that impose time limitations; Zoning Board of Appeals v. Freedom of Information Commission, 198 Conn. 498, 503, 503 A.2d 1161 (1986); Royce v. Freedom of Information Commission, 177 Conn. 584, 587, 418 A.2d 939 (1979); as well as the venue requirements of the UAPA; Farricielli v. Personnel Appeal Board, supra; and that lack of compliance with these provisions renders an appeal subject to dismissal. These decisions focused on whether the provisions in question were jurisdictional and thus essential to the validity of the appeal. Zoning Board of Appeals v. Freedom of Information Commission, supra; Farricielli v. Personnel Appeal Board, supra, 207.

The use of an improper form to commence an appeal, however, presents a different situation. As long as it contains a proper citation, signed by a competent authority, its use does not call into question the jurisdiction of the Superior Court to entertain the appeal. See General Statutes § 4-183 (b). Practice Book Form 204.7 merely establishes a method of service upon the administrative agency in a manner different from other civil actions, to wit, by registered or certified mail. See Public Acts 1979, No. 79-163. If the form, as it did in this case, clearly apprises all concerned that a lawsuit is being instituted, and contains notice of the return date, and the requirement for filing an appearance, and also directs a competent authority to summon the defendant, then the policy of giving notice to the defendant of the nature of the proceedings has been served. Cf. Village Creek Homeowners Assn. v. Public Utilities Commission, supra. Absent an affirmative showing of prejudice by the defendant; see General Statutes § 52-123; Village Creek Homeowners Assn. v. Public Utilities Commission, supra, 340; United States Envelope Co. v. Vernon, 72 Conn. 329, 44 A. 478 (1899); we conclude that the mistaken use of Form 103.1 (JD-CV-1) does not warrant the dismissal of an administrative appeal.

Next, the CHRO claims that the appeal should have been dismissed because Chestnut Realty failed to name and serve the hearing officer as the tribunal pursuant to General Statutes (Rev. to 1983) § 4-183 (b). We disagree.

General Statutes (Rev. to 1983) § 4-183 (b) provides that all “[cjopies of the petition [of appeal] shall be served upon the agency and all parties of record within thirty days after mailing of such notice or, if a rehearing is requested, thirty days after the decision thereon, except that service upon an agency may be made by mailing a copy of the petition by registered or certified mail, postage prepaid, to the office of the commissioner of the agency or to the office of the attorney general in Hartford.” (Emphasis added.) The Appellate Court in Catholic Family & Community Services v. Commission on Human Rights & Opportunities, 3 Conn. App. 464, 466-68, 489 A.2d 408 (1985), specifically held that a hearing examiner appointed by the CHRO was not an “agency” under General Statutes § 4-183 (b) and therefore did not have to be served with the plaintiffs petition. See Board of Education v. Department of Education, 198 Conn. 445, 450-52, 503 A.2d 1147 (1986). We adopt the reasoning of the Appellate Court on this issue and conclude that the trial court was correct in not dismissing the appeal.

II

The CHRO next claims that the Superior Court erred in reversing the tribunal’s finding that the complainant had made out a prima facie case of prohibited discriminatory action. We agree. We find that, under the circumstances of this case, the tribunal applied the correct standard for determining whether the complainant had made out a prima facie case.

This court recently held that in addressing claims under General Statutes § 46a-64 (formerly General Statutes § 53-35 [a]), “we are properly guided by the case law surrounding the federal fair housing laws, 42 U.S.C. §§ 3601 through 3631, even though there may be differences between the state and federal statutes.” Zlokower v. CHRO, 200 Conn. 261, 264, 510 A.2d 985 (1986); see Department of Health Services v. CHRO, 198 Conn. 479, 489, 503 A.2d 1151 (1986); Wroblewski v. Lexington Gardens, Inc., 188 Conn. 44, 53, 448 A.2d 801 (1982). “[F]ederal courts in construing the federal fair housing laws have uniformly adopted the evidentiary requirement articulated by the United States Supreme Court in federal employment discrimination cases, that the complainant must at the outset establish a prima facie case of discrimination.” Zlokower v. CHRO, supra, 265; see, e.g., Hamilton v. Svatik, 779 F.2d 383 (7th Cir. 1985); Phillips v. Hunter Trails Community Assn., 685 F.2d 184, 190 (7th Cir. 1982); Robinson v. 12 Lofts Realty, Inc., 610 F.2d 1032, 1038 (2d Cir. 1979); Smith v. Anchor Building Corporation, 536 F.2d 231, 233 (8th Cir. 1976); In re Malone, 592 F. Sup. 1135, 1166 n.21 (E.D. Mo. 1984); see also McDonnell Douglas Corporation v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). Once the complainant establishes a prima facie case, the burden shifts to the respondent to articulate a legitimate nondiscriminatory reason for its actions. Phillips v. Hunter Trails Community Assn., supra; see also McDonnell Douglas Corporation v. Green, supra. In Zlokower v. CHRO, we indicated that those federal standards have been adopted in state employment discrimination cases; Wroblewski v. Lexington Gardens, Inc., supra, 53; and held them applicable to actions brought under General Statutes § 46a-64 (formerly General Statutes § 53-35 [a]). Zlokower v. CHRO, supra, 265.

In determining whether a prima facie case of intentional discrimination in housing has been established, most federal courts have adopted a standard similar to the standard articulated by the United States Supreme Court in McDonnell Douglas Corporation v. Green, supra, which involved a title VII claim of employment discrimination. 12345 “Under federal law an individual . . . may meet his initial burden of establishing a prima facie case by proving that (1) he is a member of the statutorily protected class, (2) he has applied for and was qualified to rent or purchase the unit involved, (3) he was rejected by the respondent, and (4) the housing opportunity remained available thereafter.” (Emphasis added.) Zlokower v. CHRO, supra, 266, citing Phillips v. Hunter Trails Community Assn., supra; Robinson v. 12 Lofts Realty, Inc., supra; Davis v. Mansards, 597 F. Sup. 334, 345 (N.D. Ind. 1984); see generally Schwemm, Housing Discrimination Law (1983) pp. 405-406; but see Hamilton v. Svatik, supra.

The CHRO, in finding that the complainant had made out a prima facie case, applied only the first three prongs of this standard and found that the complainant, a black individual, was in a protected class, that he made an offer to purchase lot 7, and that he was ready, willing, and able to buy, and was rejected. No finding was made as to the last prong of the federal standard, i.e., whether the property remained available thereafter. The Superior Court concluded, therefore, that because there was no evidence in the record with respect to the continuing availability of the property after the complainant’s offer was rejected, the complainant had not made out a prima facie case.

In stating the elements necessary to establish a prima facie case of discrimination, the United States Supreme Court noted in McDonnell Douglas Corporation that the standards must be tailored to the particular facts of each case. McDonnell Douglas Corporation v. Green, supra, 802 n.13; see also Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 254 n.6, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981). In a later decision, the Supreme Court stated that the McDonnell Douglas Corporation decision “did not purport to create an inflexible formulation” for a prima facie case of discrimination. International Brotherhood of Teamsters v. United States, 431 U.S. 324, 358, 97 S. Ct. 1843, 52 L. Ed. 2d 396 (1977). The “importance of McDonnell Douglas lies, not in its specification of the discrete elements of proof there required, but in its recognition of the general principle that any Title VII plaintiff must carry the initial burden of offering evidence adequate to create an inference that an employment decision was based on a discriminatory criterion. . . .’’Id. This reasoning is equally applicable to cases involving housing discrimination. See Zlokower v. CHRO, supra.

The factual situation in this case prevents application of the fourth prong in establishing a prima facie case as stated in Zlokower v. CHRO, supra. See also McDonnell Douglas Corporation v. Green, supra. The record indicates that Barboza filed his complaint with the CHRO three days after he was informed that the Schaefers had decided not to sell the property. It defies logic to assume that a seller will continue to offer the property for sale on the open market after a ready, willing and able buyer, who was denied the opportunity to purchase, has filed a housing discrimination complaint with the CHRO. Although evidence of the continuing availability of the property would provide a stronger inference of disparate treatment; see, e.g., Texas Department of Community Affairs v. Burdine, supra, 254; it was not an error of law for the tribunal to find that a prima facie case had been made out without such evidence. We hold that the Superior Court erred in reversing the tribunal’s finding that the complainant had made out a prima facie case of housing discrimination.

Ill

The CHRO next claims that the Superior Court erred in reversing the tribunal’s finding that the respondent had failed to show a legitimate nondiscriminatory reason for refusing to sell lot 7. The trial court concluded that all that is required of the respondent to rebut a prima facie case is to articulate clearly a nondiscriminatory reason for his conduct. It found that the CHRO tribunal instead placed the burden on the respondent to prove a nondiscriminatory reason for withdrawing the lot from the market. We agree with the trial court and find that the tribunal improperly shifted the burden of proof to the respondent.

The United States Supreme Court decision in Texas Department of Community Affairs v. Burdine, supra, provides a detailed explanation of the applicable eviden-tiary burdens in proving a claim of discrimination. Once a prima facie case is established, “the burden shifts to the defendant ‘to articulate some legitimate, nondiscriminatory reason for the employee’s rejection.’ ” Id., 253, citing McDonnell Douglas Corporation v. Green, supra, 802. “The defendant need not ‘persuade the court that it was actually motivated by the proffered reasons.’ [Citations omitted.] It is sufficient if the defendant’s evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff.” (Emphasis added.) Texas Department of Community Affairs v. Burdine, supra, 254-55; see Wroblewski v. Lexington Gardens, Inc., 188 Conn. 44, 61, 448 A.2d 801 (1982). “The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.” Texas Department of Community Affairs v. Burdine, supra, 253.

An examination of the record in this case reveals that, rather than assigning a burden of production, the tribunal placed the burden of proof on the respondent to show a legitimate nondiscriminatory reason for its refusal to sell. The respondent’s rebuttal of Barboza’s claim of discrimination consisted of testimony that the Schaefers had plans to build a smaller retirement home on lot 7 since January, 1973. Although not indicating what lot they applied for, Schaefer had plans for a home drawn up in June, 1977. Schaefer testified, however, that he could not afford to build a home on lot 7 until he had sold his home on lot 5. During this time period, the Schaefers’ home on lot 5 remained on the market. As of September, 1977, the Schaefers claimed that they had not received an acceptable offer on lot 5 to enable them to sell and build on lot 7. Schaefer testified that, after he had shown lot 7 to Barboza, his wife reiterated her desire to build their retirement home on that lot and that they decided not to sell the property. The tribunal weighed and rejected this evidence stating that the respondent had “failed to produce any evidence that there was any change in the saleability of lot 5 between September 11, [1977, the date Barboza viewed lot 7,] and September 13, [1977, the date lot 7 was removed from the market,] to give any credible nondiscriminatory reason for withdrawing lot 7 from the market . . .’’(emphasis added) thereby, in effect, shifting the burden of proof improperly to the respondent.

Upon remand, the tribunal is directed to determine whether the respondent has articulated a legitimate nondiscriminatory reason for its conduct. If the respondent carries this burden of production, the prima facie case is rebutted and the complainant then has the ultimate burden of persuasion to demonstrate that the proffered reason is pretextual. See Texas Department of Community Affairs v. Burdine, supra, 256; Wroblewski v. Lexington Gardens, Inc., supra, 61.

IV

Finally, the CHRO claims that the trial court erred in reversing the tribunal’s order of relief concerning the option to purchase a lot similar to lot 7 for the 1977 price in 1983. We disagree. The trial court held that “[i]n awarding the complainant the option to purchase a similar lot in the owner’s subdivision for the 1977 price in 1983, the Hearing Officer sought to have the owner shoulder the burden of increased real estate values and inflation between 1977 and 1983.” It reasoned that this option went well beyond the common law measure of compensatory damages. The CHRO argues on appeal that the trial court’s rationale defeats the purpose of our Public Accommodations Act and civil rights laws generally to eradicate discrimination and to make persons whole for injuries suffered through discrimination.

General Statutes (Rev. to 1977) § 53-36 defined the damages a tribunal could assess if it found that the respondent had engaged in an unlawful practice under General Statutes § 53-35 (a). That authority is now provided in General Statutes § 46a-86 (c). “[I]t shall . . . determine the damage suffered by the complainant, which damage shall include but not be limited to the expense incurred by the complainant for obtaining alternative housing or space, storage of goods and effects, moving costs, attorney’s fees and any other costs actually incurred by him as a result of such unlawful practice.” (Emphasis added.) While the plain language of this provision does provide the tribunal with discretion to fashion types of relief other than those types specifically mentioned, it limits such relief to that “actually incurred by the plaintiff.” Id. Any other interpretation of the statute would vest the hearing officer with unbridled discretion. It has been held that the purpose of actual damages in a fair housing case “is to put the plaintiff in the same position, so far as money can do it, as he would have been had there been no injury or breach of duty, that is, to compensate him for the injury actually sustained.” Lee v. Southern Homes Sites Corporation, 429 F.2d 290, 293 (5th Cir. 1970); see generally Schwemm, supra, pp. 253-60. Ordinarily measuring damages by the appreciation in land from the time of an alleged act of discrimination to the time of trial goes well beyond injuries actually sustained. In the usual circumstances it results in creating a windfall profit to the complainant. Any award of damages that is punitive in nature is authorized neither under General Statutes § 53-36 nor under the common law of Connecticut. See National Semiconductor v. Allendale Mutual Ins. Co., 547 F. Sup. 1195, 1201 (D. Conn. 1982).

There is error in part, the judgment is set aside and the case is remanded to the trial court with direction to remand the case to the commission on human rights and opportunities for further proceedings in accordance with this opinion.

In this opinion the other justices concurred.

       General Statutes (Rev. to 1977) § 53-35 (a) provides: “Sec. 53-35. discrimination IN PUBLIC ACCOMMODATIONS, RENTAL HOUSING, COMMERCIAL PROPERTY, SALE OF BUILDING LOTS AND MOBILE HOME PARKS, (a) All persons within the jurisdiction of this state shall be entitled to full and equal accommodations in every place of public accommodation, resort or amusement, subject only to the conditions and limitations established by law and applicable alike to all persons; and any denial of such accommodation by reason of race, creed, color, national origin, ancestry, sex, marital status, age, mental retardation or physical disability, including, but not limited to, blindness or deafness of the applicant therefor shall be a violation of the provisions of this section. Any discrimination, segregation or separation, on account of race, creed, color, national origin, ancestry, sex, marital status, age, mental retardation or physical disability, including, but not limited to, blindness or deafness shall be a violation of this section. A place of public accommodation, resort or amusement within the meaning of this section means any establishment, which caters or offers its services or facilities or goods to the general public including, but not limited to, public housing projects and all other forms of publicly assisted housing, and further including any housing accommodation, commercial property or building lot, on which it is intended that a housing accommodation or commercial building will be constructed, offered for sale or rent, and mobile home parks as defined in section 21-64, provided the provisions of this section shall not apply (1) to the rental of a housing accommodation in a building which contains housing accommodations for not more than two families living independently of each other, if the owner or members of his family reside in one of such housing accommodations, or (2) to the rental of a room or rooms in a housing accommodation, if such rental is by the occupant of the housing accommodation, or by the owner of the housing accommodation and he or members of his family reside in such housing accommodation. The provisions of this section, with respect to the prohibition of sex discrimination, shall not apply to the rental of sleeping accommodations provided by associations and organizations which rent all such sleeping accommodations on a temporary or permanent basis for the exclusive use of persons of the same sex. The provisions of this section, with respect to the prohibition of discrimination on the basis of marital status, shall not be construed to prohibit the denial of housing accommodations to a man and a woman who are unrelated by blood or who are not married to each other. The provisions of this section, with respect to the prohibition of discrimination on the basis of age, shall not apply to minors, to federal or state aided or municipal housing for elderly persons or to privately owned housing developed and maintained exclusively for persons within specified age groups. ...”
      This statute was recodified and now appears under General Statutes § 46a-64.

       “[Practice Book] Sec. 49. mesne process
      “Mesne process in civil actions shall be a writ of summons or attachment, describing the parties, the court to which it is returnable and the time and place of appearance, and shall be accompanied by the plaintiff’s complaint. Such writ may run into any judicial district or geographical area and shall be signed by a commissioner of the superior court or a judge or clerk of the court to which it is returnable. Except in those actions and proceedings indicated below, the writ of summons shall be on a form substantially in compliance with Form 503.1 (JD-FM-3) in family actions and with Form 103.1 (JD-CV-1) in other civil actions. If any person is proceeding without the assistance of counsel, he shall sign the complaint and present the complaint and proposed writ of summons to the clerk; the clerk shall review the proposed writ of summons and, unless it is defective as to form or does not contain a bond for prosecution pursuant to Sec. 51, shall sign it.
      “Form 503.1 (JD-FM-3) and Form 103.1 (JD-CV-1) shall not be used in the following actions and proceedings which are commenced after the effective date of this amendment (January 16, 1978):
      (1) Applications for change of name.
      (2) Proceedings pertaining to arbitration.
      (3) Probate appeals.
      (4) Administrative appeals.
      (5) Juvenile court appeals.
      (6) Verified petitions for paternity.
      (7) Verified petitions for support orders.
      (8) Any actions or proceedings in which an attachment, garnishment or replevy is sought.
      “A plaintiff may, before service on a defendant, alter printed forms JD-FM-3 and JD-CV-1 in order to make them conform to any amendments to Practice Book Forms 503.1 or 103.1 or to any relevant amendments to Practice Book rules. (See Gen. Stat., § 52-89 and annotations.)”

       General Statutes (Rev. to 1983) § 4-183 (b) provides: “Proceedings for such appeal shall be instituted by filing a petition in superior court for the judicial district of Hartford-New Britain or for the judicial district wherein the aggrieved person resides or if such person is not a resident of this state to the court for the judicial district of Hartford-New Britain within forty-five days after mailing of the notice of the final decision of the agency or, if a rehearing is requested, within forty-five days after the decision thereon. Copies of the petition shall be served upon the agency and all parties of record within thirty days after mailing of such notice or, if a rehearing is requested, thirty days after the decision thereon, except that service upon an agency may be made by mailing a copy of the petition by registered or certified mail, postage prepaid, to the office of the commissioner of the agency or to the office of the attorney general in Hartford.”

       Title 42 of the United States Code, § 3604, provides in part:
      “DISCRIMINATION IN THE SALE OR RENTAL OF HOUSING.
      “As made applicable by section 3603 of this title and except as exempted by sections 3603 (b) and 3607 of this title, it shall be unlawful—
      “(a) To refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavail-ble or deny, a dwelling to any person because of race, color, religion, or national origin.
      “(b) To discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race, color, religion, or national origin.
      “(d) To represent to any person because of race, color, religion, or national origin that any dwelling is not available for inspection, sale, or rental when such dwelling is in fact so available.”

        McDonnell Douglas Corporation set forth the following elements necessary to make out a prima facie case of employment discrimination:
      1. The complainant is a member of a racial minority;
      2. The complainant applied for an opportunity and was qualified for the opportunity;
      3. The opportunity was denied to the complainant;
      4. After the opportunity was denied, the opportunity was offered to others so qualified.

        McDonnell Douglas Corporationv. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973).

       “[General Statutes (Rev. to 1977)] See. 53-36. complaint to commission ON human rights and opportunities, commission may issue complaint. damages. In addition to the penalties provided for violation of sections 53-34, 53-35 and 53-35a, any person claiming to be aggrieved by a violation of any such section may, by himself or his attorney, make, sign and file with the commission on human rights and opportunities a complaint in writing under oath which shall state the circumstances of such violation and the particulars thereof and shall contain such other information as may be required by the commission. In addition, the commission, whenever it has reason to believe that section 53-34, 53-35 or section 53-35a has been or is being violated, may issue a complaint. The commission may thereupon proceed upon any such complaint pursuant to section 53-34, 53-35 or 53-35a in the same manner and with the same powers as provided in chapter 563 in the case of unfair employment practices, and the provisions of said chapter as to the powers, duties and rights of the commission, the tribunal, the complainant, the court, the attorney general, the counsel for the commission and the respondent shall apply to any proceeding under the provisions of this section. In the investigation of any complaint, filed pursuant to section 53-35, or section 53-35a, the commission may issue subpoenas requiring the production of records and other documents relating to the complaint under investigation. If upon all the evidence the hearing tribunal finds a respondent has engaged in an unlawful practice prohibited by section 53-34, 53-35 or 53-35a, it shall state its findings of fact and it shall, in addition to any other action which it may take hereunder, determine the damage suffered by the complainant, which damage shall include but not be limited to the expense incurred by the complainant for obtaining alternative housing or space, storage of goods and effects, moving costs, attorney’s fees and any other costs actually incurred by him as a result of such unlawful practice.”


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Donald Bowman v. Kaye Williams et al.
    (12873)
    Peters, C. J., Healey, Shea, Callahan and Berdon, Js.
    Argued October 9
    decision released November 11, 1986

      David O. Chittick, for the appellants (defendants).

      Robert H. Boynton, with whom, on the brief, was Susan A. Mock, for the appellee (plaintiff).
   Per Curiam.

After examining the record on appeal and after considering the briefs and the arguments of the parties, we have concluded that the appeal in this case should be dismissed on the ground that certification was improvidently granted. The underlying issues have been fully considered in the opinion of the Appellate Court; Bowman v. Williams, 5 Conn. App. 235, 497 A.2d 1015 (1985); and it would serve no useful purpose for us to repeat the discussion therein contained.

The claim of the corporate defendant that it was improperly made a party does not merit further elaboration in light of the record, which demonstrates that, at trial, the corporate defendant, in the presence of its corporate officers, and represented by the same counsel that was counsel of record for the named defendant, had consented to an amendment to the pleadings which made the corporation a codefendant.

The appeal is dismissed.

       The dismissal of this appeal is not to be read as our endorsement of the categorical statement in the opinion of the Appellate Court; Bowman v. Williams, 5 Conn. App. 235, 238, 497 A.2d 1015 (1985); that it was unnecessary for that court to “reach the defendants’ claim that the corporation was a necessary or an indispensable party, because the defendants never moved to strike the plaintiff’s complaint because of nonjoinder of parties.” See Gill v. Shimelman, 180 Conn. 568, 570, 430 A.2d 1292 (1980).


author: Peters, C. J.

text:
    State of Connecticut v. Samuel J. Veal
    (12588)
    Peters, C. J., Healey, Dannehy, Callahan and Hendel, Js.
    Argued September 30
    decision released November 18, 1986
    Kevin' C. Connors, special public defender, for the appellant (defendant).

      Bernadette Conway, special deputy assistant state’s attorney, with whom, on the brief, were SusannE. Gill,
      deputy assistant state’s attorney, and Kevin McMahon, assistant state’s attorney, for the appellee (state).
   Peters, C. J.

This appeal raises two evidentiary questions concerning the relationship between the victim and the defendant, Samuel J. Veal, who was charged with the crime of murder, in violation of General Statutes § 5Ba-54a. The defendant was simultaneously charged with the crime of assault in the second degree with a firearm, in violation of General Statutes § 53a-60a (a), but that charge has been resolved by a plea of nolo contendere. After a jury verdict of guilty on the count of murder, the trial court sentenced the defendant to imprisonment for sixty years. We find no error in the defendant’s appeal of his murder conviction.

The jury could reasonably have found the following facts. During the evening of July 30, 1983, a number of people were sociably playing cards at a private home in Hartford. When additional visitors arrived around 11 p.m., the card game broke up and four of the visitors, the defendant, another man and two women, then left the house. As they were walking away from the house, the defendant, without visible provocation, fired a shot at one of the women, who had formerly been his girlfriend. After the victim fell to the ground, the defendant fired additional shots at her at close range. The victim died at St. Francis Hospital without ever having regained consciousness. In firing at the victim, the defendant also hit the other woman, who suffered a bullet wound in her arm. The defendant fled from the scene of the crime but was apprehended later that evening by the Hartford police.

The defendant did not deny that he had fired the gun shots that led to the death of the victim but claimed that he lacked the specific intent required for a conviction of murder. In his appeal he does not challenge the sufficiency of the evidence in that regard but claims that the trial court erred: (1) in excluding evidence of violence on the part of the murder victim; and (2) in admitting evidence of threats of violence on his part against the murder victim. On the record before us, we conclude that plenary review of these alleged evidentiary errors is not warranted.

I

The defendant’s first claim of error contests the propriety of the trial court’s rulings that prevented him from introducing evidence concerning prior acts of violence by the murder victim and her general reputation for violence. This evidence was admissible, according to the defendant, because it was material and relevant to the defense of extreme emotional disturbance. That defense was before the court, the defendant claims, because the entire trial was about the defendant’s mental state at the time he shot the victim. We are unpersuaded by the defendant’s contention.

Although the trial court refused to admit evidence specifically addressed to the victim’s alleged prior acts of violence or to her reputation for violence, there was considerable evidence at the trial about a stormy relationship of long standing between the defendant and the murder victim. The jury heard that they had lived together and had had a child together, but had never married. Defense counsel brought out that the defendant had previously accused the victim of improper activities with other men, and that the defendant and the deceased had “had fights” when they had lived together. At the scene of the crime, after the shooting, the defendant was heard to say, “Bitch, I finally got you. Bitch, I finally got you.” The defendant admitted to the chief investigating officer, Detective James Pasquerell, that he had shot the victim because “he had just about had it with her.” This detective also testified, however, that the defendant had told him that the victim had repeatedly beaten the defendant in the past. Furthermore, a knife was discovered in the victim’s clothing when she was undressed at the hospital to which she was taken after the shooting.

At the trial, the defendant raised neither a claim of self-defense nor a claim of extreme emotional disturbance. Indeed, at the outset of the trial, defense counsel expressly informed the court that he was withdrawing a previously filed notice of claim of lack of criminal responsibility or existence of condition bearing on mental state. Later in the trial, in his offer of proof relating to the evidence whose exclusion is now assigned as error, the defendant suggested the availability of a defense of justification analogous to that involved in a battered spouse syndrome. The trial court, because of the absence of a claim of self-defense, relied on State v. Miranda, 176 Conn. 107, 114, 405 A.2d 622 (1978), to sustain the state’s objection to the evidence that the defendant sought to introduce concerning the victim’s past conduct and reputation. See State v. Mason, 186 Conn. 574, 580, 442 A.2d 1335 (1982); State v. Gooch, 186 Conn. 17, 24, 438 A.2d 867 (1982); State v. Bember, 183 Conn. 394, 399, 439 A.2d 387 (1981); State v. De Santis, 178 Conn. 534, 540, 423 A.2d 149 (1979). When the court immediately thereafter asked counsel for requests to charge, the defendant requested an instruction on the lesser included offense of manslaughter. That request, however, in no way alluded to the defense of extreme emotional disturbance; General Statutes § 53a-54a (a); but invoked instead the general provision of § 53a-45 (c), under which “any person . . . held to answer for murder . . . may [be found] . . . guilty of homicide in a lesser degree than that charged.” Acceding to the defendant’s request to charge on manslaughter in the first degree as a lesser included offense, the trial court, in its instructions to the jury, accordingly made no reference to the defense of extreme emotional disturbance, and no exception was taken on this ground.

On this state of the record, we are hard pressed to discern any trial court ruling on the issue the defendant has raised on appeal: the relevance and materiality of the proffered evidence to an implicit defense of extreme emotional disturbance. General Statutes § 53a-54a (a). It is true that we have held that the affirmative defense of extreme emotional disturbance does not require the filing of a formal notice or pleading. State v. Asherman, 193 Conn. 695, 731 n.10, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1070, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985); State v. Marino, 190 Conn. 639, 651 n.11, 462 A.2d 1021 (1983). We have never held, however, as the defendant now urges, that a trial court has a due process obligation to examine the evidence sua sponte to see whether it supports the existence of the mitigating circumstances contemplated by the defense of extreme emotional disturbance. On the contrary, we have previously concluded that a trial court has not deprived a defendant of a fundamental constitutional right and a fair trial by giving a jury instruction that, in the absence of a timely request or exception, omits any reference to an affirmative defense such as extreme emotional disturbance. State v. Preyer, 198 Conn. 190, 197-98 n.9, 502 A.2d 858 (1985); State v. Jacobowitz, 194 Conn. 408, 411-12, 480 A.2d 557 (1984). It would be anomalous, to say the least, to find a constitutional defect in an evidentiary ruling when we have found no constitutional defect in a jury instruction under similar circumstances. It would be especially anomalous to find such a constitutional failing when, as in this case, the defendant himself has expressly withdrawn at trial any claim relating to his mental condition. Absent a deprivation of the defendant’s constitutional right to a fair trial, the defendant may not on appeal belatedly pursue an evidentiary claim that he failed to articulate clearly at trial. Practice Book § 288; State v. Torrence, 196 Conn. 430, 434-35, 493 A.2d 865 (1985); State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973).

On the record in this case, we can discern no reviewable claim of unconstitutional impairment of the defendant’s right to defend himself against the charge of murder. To the extent that the victim’s past conduct was generally relevant to the defendant’s state of mind at the time of the crime, considerable evidence at trial brought that conduct to the attention of the jury. The failure to admit specific evidence of the victim’s alleged prior acts of violence and reputation for violence, when the defendant did not assert a defense of self-defense; see State v. Miranda, supra; does not give rise to a constitutional claim grounded in an unasserted defense of extreme emotional disturbance. We need not decide today whether a timely assertion, at trial, of the defense of extreme emotional disturbance would have entitled the defendant to present the evidence to which the state objected. See State v. Casey, 201 Conn. 174, 179-80, 513 A.2d 1183 (1986); State v. Elliott, 177 Conn. 1, 6-7, 411 A.2d 3 (1979).

II

The defendant’s alternate claim of error complains of a number of trial court rulings in which the court permitted the state to introduce testimony of the defendant’s threats against the victim and of the victim’s fear of the defendant. This evidence was introduced, of necessity, through the testimony of those in whom the victim had confided. At trial, the defendant objected to this evidence on the grounds of relevance and prejudice. These grounds for objection have virtually been abandoned, and properly so. The defendant’s appeal focuses instead on the claims that this evidence should not have been admitted because it constituted hearsay and violated his constitutional right to confront his accusers. The defendant has pursued this claim even though the record demonstrates that the trial court expressly inquired whether the defendant was making a hearsay objection and repeatedly was assured that hearsay was not an issue.

The defendant’s common law claims require little discussion. We agree with the trial court that evidence of threats is relevant to issues of intent and motive, matters that were central to the trial of this case. State v. Perry, 195 Conn. 505, 521, 488 A.2d 1256 (1985); State v. Falby, 187 Conn. 6, 23, 444 A.2d 213 (1982). The trial court could reasonably have concluded that the probative value of this testimony outweighed its prejudicial tendency. State v. Perry, supra; State v. Ibraimov, 187 Conn. 348, 352, 446 A.2d 382 (1982). The defendant cannot prevail in his belated common law claim that the testimony should have been excluded as hearsay since obviously he failed in any manner to articulate this basis for his objections at trial. Practice Book § 288; State v. Sinclair, 197 Conn. 574, 580, 500 A.2d 539 (1985); State v. Braman, 191 Conn. 670, 684-85, 469 A.2d 760 (1983).

We are equally unpersuaded by the defendant’s constitutional claims, which are premised on the argument that hearsay claims invoke the confrontation clauses of the federal and the state constitutions. Alleging that the admission of the evidence of his threats against the victim violated his fundamental constitutional right to a fair trial, the defendant maintains that these constitutional violations are reviewable on appeal despite his failure to raise such claims at trial. In effect, the defendant seeks to “put a constitutional tag on a nonconstitu-tional claim.” State v. Vitale, 197 Conn. 396, 403, 497 A.2d 956 (1985). We have only recently held, however, that hearsay claims do not automatically invoke constitutional rights to confrontation. State v. McIntosh, 199 Conn. 155, 162, 506 A.2d 104 (1986).

In the absence of a record demonstrating that the admission of the challenged testimony impaired the defendant’s opportunity to obtain a fair trial, we decline to review this claim of error. State v. Torrence, supra; State v. Evans, supra. We note again that the trier of the facts heard other unchallenged evidence concerning the stormy relationship between the defendant and his victim. We reiterate that the defendant expressly abjured reliance on a hearsay objection at trial; cf. State v. Jones, 193 Conn. 70, 88-89, 475 A.2d 1087 (1984). We observe, finally, that the persuasiveness of the belated hearsay and confrontation claims is attenuated by the difficulty of clarifying, after the fact, whether this evidence was offered to establish the truth of the matter asserted therein or to demonstrate the state of mind of the victim. See State v. McIntosh, supra, 162-63; Kukanskis v. Jasut, 169 Conn. 29, 36-37, 362 A.2d 898 (1975).

There is no error.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 53a-54a. murder defined, affirmative DEFENSES. EVIDENCE OF MENTAL CONDITION. CLASSIFICATION, (a) A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception; except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant . . . [acted] under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime.
      “(b) Evidence that the defendant suffered from a mental disease, mental defect or other mental abnormality is admissible, in a prosecution under subsection (a), on the question of whether the defendant acted with intent to cause the death of another person.
      “(c) Murder is punishable as a class A felony in accordance with subdivision (2) of section 53a-35a unless it is a capital felony.”

       “[General Statutes] Sec. 53a-60a. ASSAULT IN the second DEGREE WITH a firearm: class d felony: one year not suspendable. (a) A person is guilty of assault in the second degree with a firearm when he commits assault in the second degree as provided in section 53a-60, and in the commission of such offense he uses or is armed with and threatens the use of or displays or represents by his words or conduct that he possesses a pistol, revolver, machine gun, shotgun, rifle or other firearm. No person shall be found guilty of assault in the second degree and assault in the second degree with a firearm upon the same transaction but such person may be charged and prosecuted for both such offenses upon the same information.”

       This gunshot wound gave rise to the charge of assault to which the defendant ultimately pleaded nolo contendere.

       A final claim of error alleging ineffective assistance of counsel was withdrawn at oral argument in light of our holding in State v. Leecan, 198 Conn. 517, 504 A.2d 480, cert. denied, 476 U.S. 1184, 106 S. Ct. 2922, 91 L. Ed. 2d 550 (1986).

       “[General Statutes] Sec. 53a-45. murder: penalty; waiver op jury trial; finding OP lesser degree. . . . (c) The court or jury before which any person indicted for murder or held to answer for murder after a hearing conducted in accordance with the provisions of section 54-46a is tried may find him guilty of homicide in a lesser degree than that charged.”

       “[Practice Book] Sec. 288. objections to evidence
      “Whenever an objection to the admission of evidence is made, counsel shall state the grounds upon which it is claimed or upon which objection is made, succinctly and in such form as he desires it to go upon the record, before any discussion or argument is had. Argument upon such objection shall not be made by either party unless the court requests it and, if made, must be brief and to the point. An exception to the ruling must be taken in order to make it a ground of appeal.”

       The sixth amendment to the United States constitution and article first, § 8, of the Connecticut constitution provide in relevant part: “In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him . . . . ”


text:
    Stanley P. Nevers et al. v. Bert W. Anderson et al.
    (12607)
    Peters, C. J., Shea, Dannehy, Callahan and M. Hennessey, Js.
    Argued October 8
    decision released November 18, 1986

      Edward T. Lynch, Jr., for the appellants (defendants).

      Thomas P. Griffen, for the appellees (plaintiffs).
   Per Curiam.

This case is an action for a permanent injunction restraining the city of New Britain and its municipal officers from paying unrestricted expense accounts to the city’s aldermen pursuant to an ordinance that the plaintiffs allege to be illegal, unconstitutional and void. The plaintiffs are residents and taxpayers of the city of New Britain, and the defendants are the city, its municipal officers and the aider-men who constitute the common council of the city of New Britain. The trial court, after a hearing on stipulated facts, determined that the disputed ordinance operated, in effect, to increase the compensation of the aldermen and that such an increase in salary was invalid in the absence of an amendment to the city charter or a timely confirmatory referendum by the electorate of the city. Accordingly, the court granted the plaintiffs the injunctive relief they sought and ordered the defendant city and the defendant treasurer to recover from the defendant aldermen all sums of money that they had received pursuant to the invalid ordinance. The defendants have appealed. We find no error.

The underlying issue at trial, and on this appeal, is whether a monthly, unrestricted expense account of $125 for each position of alderman, payable to each incumbent holding the position of alderman on the first day of each month, is to be considered an increment to the compensation of an alderman whose salary is fixed at $750 per annum by the charter of the city of New Britain. The trial court, in its lengthy and detailed memorandum of decision, Nevers v. Anderson, 40 Conn. Sup. 539, 517 A.2d 648 (1984), fully addressed this issue. Our examination of the record on appeal, and the briefs and arguments of the parties, persuades us that the trial court correctly determined that Ordinance No. 15042-1, adopted by the New Britain common council and approved by the mayor of New Britain in December, 1981, authorized payments that constituted compensation rather than reimbursement for official expenses. We adopt the trial court’s well reasoned decision as a statement of the facts and the applicable law on this issue.

Having determined that the disputed ordinance provided an increment in the compensation of the defendant aldermen, the trial court then addressed the next issue, whether such an ordinance is valid. The court concluded that the ordinance was invalid on a number of grounds: violation of the New Britain city charter, violation of General Statutes § 7-460, and violation of article eleventh, § 2 of the Connecticut constitution. The judgment of the trial court can be fully sustained on the first of these grounds, that an increase in the compensation of New Britain aldermen requires an amendment of the city charter, a procedure concededly not followed in this case. As the trial court correctly noted, the New Britain city charter provides, in relevant part, that “[ejach alderman of the city shall receive a salary of $750 per annum,” New Britain Charter, c. 1, § 132; and that “no alderman shall receive any fee or salary, compensation, or reward for services as such alderman except as provided in this charter.” New Britain Charter, c. 5, § 531. The New Britain common council could not itself amend the city charter without submitting a proposed charter amendment to the city electorate at the next regular election. General Statutes § 7-187 et seq. The specificity of the charter’s prohibition of legislative increases in compensation fully supports the conclusion that the challenged ordinance was invalid. We therefore need not and do not consider the alternate grounds of invalidity on which the trial court relied.

There is no error.


author: Shea, J.

text:
    State of Connecticut v. Ralph Hodge
    (12838)
    Peters, C. J., Healey, Shea, Dannehy and Callahan, Js.

      Argued October 1
    decision released November 18, 1986

      JohnM. Massameno, assistant state’s attorney, with whom, on the brief, was James L. Radda, deputy assistant state’s attorney, for the appellant (state).

      James E. Swaine, for the appellee (defendant).
   Shea, J.

In a trial to the court the defendant was convicted of accepting a gratuity for the purpose of influencing his behavior in office in violation of General Statutes § 29-9, as a lesser offense included in the information charging him with bribe receiving in violation of General Statutes § 53a-148. On appeal to the Appellate Court, the judgment was set aside and an acquittal was directed upon the ground that § 29-9 was not a lesser offense included within § 53a-148. State v. Hodge, 5 Conn. App. 125, 128-29, 497 A.2d 79 (1985). Upon the grant of certification the state has appealed to this court, claiming error in the conclusion of the Appellate Court that “our bribe receiving statute [§ 53a-148] ... is not a specific intent crime.” We affirm the judgment of the Appellate Court, but upon grounds different from those relied upon by that court.

The facts as stated in the Appellate Court opinion are not disputed in this appeal. The defendant, a New Haven police officer, was employed in an off-duty capacity as a security guard during a rock concert at the New Haven Coliseum. It was the policy of the Coliseum to place uniformed off-duty police officers at the emergency doors of the arena. During intermission a security officer employed by the Coliseum observed the defendant permit two young men to enter the arena through the doorway he had been assigned to guard. The defendant then called the two men back, whereupon each of them took money from his wallet and passed it to the defendant. After the security officer reported the incident, the defendant was charged with bribe receiving in violation of § 53a-148.

The trial court, in rendering judgment in a decision delivered orally from the bench, found that the state had failed to prove the existence of any corrupt agreement or understanding prior to the defendant’s receipt of the money from the two young men. Concluding that proof of such an element was essential for a conviction of bribe receiving under § 53a-148, the court implicitly acquitted the defendant of that charge. It found him guilty, nevertheless, of accepting “a reward, gift or gratuity for the purpose of influencing his behavior” as a police officer in violation of § 29-9, deeming this misdemeanor offense to be included within the felony charge of § 53a-148.

The Appellate Court set aside the conviction upon the ground that § 29-9 was not an offense included within § 53a-148. The court reasoned that § 29-9 required an element of specific intent—that the gratuity be received for the purpose of influencing the police officer’s behavior in office—not contained in § 53a-148. Accordingly, the Appellate Court concluded, it was possible to commit the greater offense proscribed by § 53a-148 without violating § 29-9 and, therefore, the latter was not encompassed by the former.

When we granted certification for this appeal from the Appellate Court, the only issue presented by the petition was as follows: “Whether the Appellate Court erred in concluding that our bribe receiving statute [53a-148], which requires proof that the benefit offered be accepted ‘for, because of, or as consideration for’ an official decision, is not a specific intent crime.” Practice Book § 3154 (now § 4132) provides that “[t]he issues which the appellant may present are limited to those raised in the petition for certification . . . .” (Emphasis added.) While “[t]he only issues we need consider are those squarely raised by the petition for certification,” we have recognized that an appellee, in accordance with Practice Book § 3012 (a) (now § 4013 [a]), may present alternative grounds upon which the judgment may be affirmed. State v. Torrence, 196 Conn. 430, 434 n.6, 493 A.2d 865 (1985); see also Practice Book § 3158 (now § 4140). “In addition, under extraordinary circumstances . . . we may review matters not raised before the Appellate Court and resolve issues not determined by the Appellate Court.” Id., 434 n.5; see Greenwood v. Greenwood, 191 Conn. 309, 315, 464 A.2d 771 (1983).

We have concluded that it would be inappropriate to respond to the question contained in the petition because of the factual determination made by the trial court in acquitting the defendant under § 53a-148. The court found there was no “corrupt agreement” prior to the defendant’s receipt of the money from the two persons he had allowed to enter the arena. This finding precluded a conviction under § 29-9, which requires that the “reward, gift or gratuity” be received by a police officer “for the purpose of influencing his behavior in office.” The trial court clearly erred in implicitly finding this mental element to have been proved to support a conviction under § 29-9 after having expressly found that the “existence of a corrupt prior agreement or understanding” could not be inferred from the evidence. A response, therefore, to the question whether § 53a-148 is a specific intent crime, as posed by the petition, would be virtually an academic exercise. The finding of the trial court definitively resolves the issue of the existence of the mental element necessary for a conviction under either § 53a-148 or § 29-9 in favor of the defendant, a factual determination which this court cannot overturn without disregarding constitutional principles of double jeopardy as well as standards of appellate practice. Practice Book § 3060D (now § 4061); Burks v. United States, 437 U.S. 1, 10-17, 98 S. Ct. 2141, 57 L. Ed. 2d 1 (1978). Whether the state of mind claimed to be an element of § 53a-148 is identical in all respects to that required by § 29-9, the trial court by acquitting the defendant of the former offense must be deemed to have found any such mental element unproved. The question presented by the petition has essentially been mooted by the finding of the trial court, since a response thereto cannot affect the outcome of the appeal.

As we have noted previously, we are not limited to the issues presented in the petition if the judgment of the Appellate Court may be affirmed on some other ground. Our conclusion that the express finding of the trial court, that no agreement preceded the defendant’s receipt of the money, precludes a conviction under § 29-9 requires that we affirm the judgment of the Appellate Court setting aside the conviction and directing an acquittal. We also affirm the conclusion of that court that an acquittal is necessary because the defendant has been found guilty of an offense not included within the charge of bribe receiving as set forth in the information and bill of particulars. The basis for our view, however, is that § 29-9 bans the acceptance of gratuities by police officers only and does not apply to other “public servants,” a term broadly defined for the purpose of § 53a-148 to mean “an officer or employee of government, elected or appointed, and any person participating as adviser, consultant or otherwise, paid or unpaid, in performing a governmental function.” General Statutes § 53a-146 (3). One need not be a police officer to violate § 53a-148, but must have that status for a violation of § 29-9. The information and bill of particulars charging the defendant with violating § 53a-148 failed to allege that he was a police officer and contained no reference to his status.

The test for determining whether one crime is a lesser included offense of another crime is whether it is possible to commit the greater offense in the manner described in the information or bill of particulars without having first committed the lesser. State v. Castro, 196 Conn. 421, 428, 493 A.2d 223 (1985); State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980). Under the charging documents in this case a “public servant” other than a police officer could have violated § 53a-148 without necessarily violating § 29-9. It is clear, therefore, that § 29-9 was not a lesser included offense and the conviction of the defendant must be set aside.

The judgment of the Appellate Court is affirmed.

In this opinion the other justices concurred.

       “[General Statutes] See. 29-9. acceptance or offering of gifts or REWARDS BY OR TO STATE OR LOCAL police, (a) Any state police officer appointed as provided in section 29-4, any police officer of any city, town or borough and any person having the power of arrest who, directly or indirectly, receives a reward, gift or gratuity for the purpose of influencing his behavior in office, or any person who gives, offers or promises to a police officer or any person having the power of arrest any reward, gift or gratuity with the intent to influence his behavior in office, shall be fined not more than one hundred dollars or imprisoned not more than six months or both, and the police officer shall be dishonorably discharged from the division of state police or from the police department.
      “(b) The provisions of subsection (a) shall not apply to rewards, gifts or gratuities which are approved by the commissioner of public safety, or the police chief or board of police commissioners, as the case may be, and are given to the police officer on account of his official services.”

       “[General Statutes] Sec. 53a-148. BRIBE receiving: class d felony. (a) A public servant or person selected to be a public servant is guilty of bribe receiving if he solicits, accepts or agrees to accept from another any benefit for, because of, or as consideration for his decision, opinion, recommendation or vote.
      “(b) Bribe receiving is a class D felony.”

       The trial court appears to have construed the portion of § 29-9 relating to the receipt of a gratuity by a police officer as not requiring “specific intent,” giving no purport to the phrase, “for the purpose of influencing his behavior in office.” The Appellate Court reached the opposite conclusion, that § 29-9 “imposes the requirement that . . . the receipt of a benefit by the police officer [be] ‘for the purpose of influencing’ his conduct”; State v. Hodge, 5 Conn. App. 125, 128, 497 A.2d 79 (1985); while “§ 53a-148 does not require a specific intent”; id.; without discussing the provision that “any benefit” be received by a public servant “for, because of, or as consideration for his decision, opinion, recommendation or vote.” See State v. Carr, 172 Conn. 458, 465-66, 374 A.2d 1107 (1977).

       The defendant has not filed any statement of alternative grounds upon which the judgment of the Appellate Court may be affirmed nor has he otherwise raised any such grounds. Practice Book § 3012 (a) (now § 4013 [a]); State v. Torrence, 196 Conn. 430, 434 n.6, 493 A.2d 865 (1985). The two grounds relied upon by this court in affirming the judgment were raised by the court sua sponte during oral argument.


text:
    Gregory T. Boehm v. Paul Kish et al.
    (12847)
    Peters, C. J., Healey, Shea, Dannehy and Callahan, Js.

      Argued October 1
    decision released November 18, 1986

      Louis Ciecarello, for the appellant (plaintiff).

      J. Kevin Golger, with whom, on the brief, were Paul V. McNamara and Robert Zeisler, for the appellees (defendants).
   Shea, J.

The principal issue in this appeal is whether evidence of the defendants’ reckless service of alcohol to the plaintiff, the plaintiff’s intoxication, and the severe injuries subsequently sustained by the plaintiff while operating his automobile are sufficient to support an inference of causation in fact between the injuries and the defendants’ actions, absent testimony or other evidence that explicitly concerned the nature of the accident that produced those injuries. We conclude that the plaintiff’s failure to present any evidence of how the accident occurred in support of the causal inferences the jury might have drawn linking the plaintiff’s intoxication to his injuries necessitated a judgment for the defendants.

The plaintiff brought this action in two counts against the defendant cafe owner and his bartender. In the first count the plaintiff alleged liability for wanton and reckless conduct. In the second count the plaintiff alleged liability for gross negligence. Each count alleged that the defendants, in violation of General Statutes § 30-86, had served alcoholic beverages to the plaintiff while he was already in an intoxicated condition, and that such conduct had resulted in the injuries subsequently sustained by the plaintiff in operating his automobile. Each count further alleged that “the plaintiff lost control of the automobile and crashed into the guard rail,” although no evidence was adduced at trial to support this allegation.

It is not disputed that the following facts are reasonably supported by the evidence: On May 7, 1981, the plaintiff, Gregory T. Boehm, drank a quart of beer and then drove for approximately ten minutes to the Brook Cafe in Westport, a bar owned by the named defendant, Paul J. Kish. At the cafe, the plaintiff ordered a total of six large drinks of rum and orange juice from the bartender, the defendant Michael Zieff, with each drink containing three to five ounces of eighty proof rum. After his third drink, the plaintiff showed signs of being intoxicated, slumping in his chair and slurring his speech, and, before ordering his sixth, he staggered about the bar and spilled his drink and some change. About four hours after arriving at the cafe, at approximately 7 p.m., having not quite finished his last drink, he stumbled to his car and then headed for the Connecticut turnpike. The plaintiff drove to a stoplight just before the entrance to the turnpike. As he turned onto the turnpike, he reached for his sunglasses “because the sun was real low on the horizon.” He next found himself on the floor of the car, with people staring in the window.

The plaintiff was taken by ambulance to the Nor-walk Hospital, where Edwin Mulford, a physician, determined that he had broken his neck and had been rendered a quadriplegic. Tests taken soon after the plaintiff had been admitted to the hospital indicated that his blood alcohol concentration was then .299, which corresponds to a content in the body of 15.25 ounces of eighty proof alcohol.

At the close of the evidence, the trial court, Spear, J., reserved decision on the defendants’ motion for a directed verdict. The court charged the jury and then submitted the case to the jury, which deliberated for about three hours that afternoon. The following morning, after reviewing the evidence and hearing oral argument, the court directed the jury to return a verdict for the defendants because the plaintiff had failed to present evidence about the automobile accident sufficient to establish causation. The court denied the plaintiff’s subsequent motions to set aside the verdict and for a new trial.

The plaintiff on appeal has assigned error in the denial of his motion to set aside the verdict. In reviewing the ruling on this motion, we view the evidence in the light most favorable to the plaintiff. Petyan v. Ellis, 200 Conn. 243, 244, 510 A.2d 1337 (1986). A directed verdict is justified if on the evidence the jury could not reasonably and legally reach any other conclusion than that embodied in the verdict as directed; id.; McDonald v. Connecticut Co., 151 Conn. 14, 17, 193 A.2d 490 (1963); or if the evidence is so weak that it would be proper for the court to set aside a verdict rendered for the other party. Mott v. Hillman, 133 Conn. 552, 555, 52 A.2d 861 (1947). Although the elements of a cause of action may be established on the basis of inferences drawn from circumstantial evidence; see, e.g., Cayer v. Salvatore, 150 Conn. 361, 363, 189 A.2d 505 (1963); such inferences “must be reasonable and logical, and the conclusions based on them must not be the result of speculation and conjecture.” Palmieri v. Macero, 146 Conn. 705, 708,155 A.2d 750 (1959). An inference must have some definite basis in the facts. See Latham v. Hankey, 117 Conn. 5, 10-11, 166 A. 400 (1933). When an element necessary to a cause of action cannot be established without conjecture, the evidence presented cannot withstand a motion for a directed verdict.

Unlike General Statutes § 30-102, our Dram Shop Act, the statutory prohibition against serving alcohol to an intoxicated person contained in § 30-86, which the plaintiff invokes, does not authorize a private cause of action for damages. Thus the plaintiff’s action is necessarily at common law. “We have held in a number of cases that there is no common-law action in negligence against one who furnished, whether by sale or gift, intoxicating liquor to a person who thereby voluntarily became intoxicated and in consequence of his intoxication injured the person or property either of himself or of another. . . . The reason underlying the rule is that the proximate cause of the intoxication was not the sale or furnishing of the liquor but the consumption of it by the purchaser or donee.” Kowal v. Hofher, 181 Conn. 355, 357-58, 436 A.2d 1 (1980). We held in Kowal, however, that the policy considerations that justify protecting a vendor or social host from common law liability for the injurious consequences of negligent conduct in the sale or serving of alcoholic beverages do not apply with respect to wanton and reckless misconduct. Id., 360-61.

A legal, or proximate, causal connection between the conduct and the resulting injury is a necessary element of causes of action in gross negligence or in recklessness. See, e.g., Shinville v. Hanscom, 116 Conn. 672, 674, 166 A. 398 (1933) (“to furnish a basis of recovery, reckless misconduct must have been a substantial factor in bringing about the injuries complained of”). A prerequisite to a determination of proximate causation is a finding of causation in fact. The decisive question in the present case, then, is whether the facts presented by the plaintiff are sufficient to support an inference of causation in fact.

This court was faced with the absence of evidence about the cause of a motor vehicle accident in Palmieri v. Macero, supra. In that negligence action, the trial court rendered judgment for the defendant, whose decedent had been driving the car, notwithstanding the jury’s verdict for the plaintiff passenger. The plaintiff had testified that he had been asleep in the car and was awakened only when it struck a guardrail before going over an embankment. There were no witnesses to the accident, which the driver did not survive, though marks on the highway indicated that the car had been traveling at a fast rate of speed and was out of control. Because any one of a number of forces might have impelled the car along its erratic course, this court said that the conclusion of the jury that negligence of the driver was the proximate cause of the accident “was without evidential basis and could only have resulted from guesswork. Latham v. Hankey, [supra, 11].” Palmieri v. Macero, supra, 707-708. Accordingly, the Palmieri court found no error below. In several other single vehicle accident cases where there were no eyewitnesses, we have similarly held that evidence is insufficient to support a verdict for the plaintiff where the issues of fault or proximate cause have not been removed from the realm of conjecture. Meade v. Warehouse Transport, Inc., 165 Conn. 553, 556, 338 A.2d 111 (1973); Toomey v. Danaher, 161 Conn. 204, 207, 286 A.2d 293 (1971); Chasse v. Albert, 147 Conn. 680, 683, 166 A.2d 148 (1960).

The plaintiff in the present case asserts, as he must, that his is a stronger case than was Palmieri’s. The plaintiff points to his drunken condition upon leaving the Brook Cafe, which resulted in his impaired ability to operate his car. He also relies heavily on our discussion of causation in Kowal v. Hofher, supra, 360, where we said that “[responsibility for greater consequences may be considered justified in the case of intentional or reckless conduct than for mere negligence.” We stated further that § 501, comment (a), of the Restatement (Second) of Torts “makes it clear that a jury may be permitted to find causation in cases of reckless misconduct even though no such finding would be permissible were the defendant’s conduct merely negligent.” Kowal v. Hofher, supra.

It is only by confounding the notion of proximate cause with that of causation in fact that our discussion in Kowal can be seen as supporting a finding of proximate cause in the present case. The ordinary test for causation in fact is, simply, “would the injury have occurred were it not for the actor’s conduct.” Kowal v. Hofher, supra, 359. “An actual cause that is a substantial factor in the resulting harm is. a proximate cause of that harm.” Coburn v. Lenox Homes, Inc., 186 Conn. 370, 383, 441 A.2d 620 (1982). In determining proximate cause, the point beyond which the law declines to trace a series of events that exist along a chain signifying actual causation is a matter of fair judgment and a rough sense of justice. See generally Palsgraf v. Long Island R. R. Co., 248 N.Y. 339, 352, 354-56,162 N.E. 99 (1928) (Andrews, J., dissenting).

The finding of actual cause is thus a requisite for any finding of proximate cause. In Kowal, causation in fact was adequately traced back to the barkeeper who served an intoxicated person an alcoholic beverage, because it was also postulated that the intoxicated condition of that person had resulted in the negligent operation of the car that caused the collision. Kowal v. Hofher, supra, 356, 358. The question was whether proximate cause should be extended beyond consumption to such service when the latter constituted wanton and reckless misconduct. In the present case, as in Palmieri, any one of a number of factual possibilities may explain the actual cause of the accident. For example, as the trial court surmised, a vehicle might have come across the median divider and collided with the plaintiff’s car, or might have hit his car from the rear. The plaintiff introduced no evidence to show whether the car had collided with any object, whether the car had been damaged, or even to show its position on the highway when it was found. There were no medical reports opining on how the plaintiff’s particular injuries might have occurred. In sum, only speculation and conjecture could link the plaintiff’s injuries to the conduct of the defendants. The burden was upon the plaintiff to prove an unbroken sequence of events that tied his injuries to the reckless service of alcohol to him by the defendants.

The plaintiff relies on the stairway accident case of Blados v. Blados, 151 Conn. 391, 198 A.2d 213 (1964), in which there was no eyewitness evidence regarding the cause of the fall of the decedent, whose body was found at the foot of a flight of stairs. There, however, the plaintiff presented ample evidence showing the position of her decedent below the stairway, the probable distance he had fallen, and the nature of various irregularities that created a hazardous condition on the stairway. The claimant thus showed both a defect and the nature of the accident, facts sufficient to sanction the jury’s inferences of cause and effect.

In the present case, the evidence at most supports an inference that an accident has followed an inebriation, not that the one was produced by the other. The plaintiff has provided no definite basis in the facts from which to draw the latter conclusion. Because the plaintiff put forth evidence at trial sufficient to prove no more than gross negligence and recklessness not necessarily related to the circumstances of the accident, we conclude that the trial court did not err in directing a verdict in favor of the defendants and in denying the plaintiff’s motion to set aside the directed verdict.

Finally, the plaintiff claims that the trial court erred in directing the verdict after the submission of the case to the jury. It is true generally that a directed verdict is not favored. Petyan v. Ellis, supra, 244; Bleich v. Ortiz, 196 Conn. 498, 500, 493 A.2d 236 (1985). Where the trial court’s decision to direct a verdict is determined to have been erroneous, the parties and the judicial system are subjected to the burdens of a new trial. The preferred procedure, therefore, is to submit the issues to the jury, and then to set aside the verdict. Finding error in such a case, this court could simply direct that the verdict be reinstated. See Santor v. Balnis, 151 Conn. 434, 437, 199 A.2d 2 (1964). Obviously, a trial cut short is cheaper than one prolonged. This rationale, however, only minimally justifies the direction of a verdict after the case has been submitted to the jury, for at that stage argument has already been heard and instructions given, and, depending upon the lengthiness of jury deliberations, the trial may be in its final moments.

Nevertheless, we cannot agree that the timing of the trial court’s ruling, though seemingly unwise, amounted to reversible error. The jury in this case could not reasonably have concluded that the plaintiff had met his burden of proof on the issue of causation. The plaintiff acquired no vested right in a jury determination upon submission of the case to the jury. The lack of evidence to establish causation certainly warranted a ruling in favor of the defendants before or after jury deliberations. It would hardly be sensible to reverse a correct ruling by a trial judge that did not prejudice the plaintiff in any way simply because a different procedure might have been preferable.

There is no error.

In this opinion the other justices concurred.

       Because the trial court directed a verdict, and because we find no error and therefore need not be concerned with providing guidance for a new trial, we need not address the plaintiff’s three claims of error with respect to the trial court’s jury instructions.

       At the time of the accident General Statutes § 30-86 provided: “Any permittee who, by himself, his servant or agent, sells or delivers alcoholic liquor to any minor, or to any intoxicated person, or to any habitual drunkard, knowing him to be such an habitual drunkard, and any person, except the parent or guardian of a minor, who delivers or gives any such liquors to such minor, except on the order of a practicing physician, shall be subject to the penalties of section 30-113.”

       Paragraph ten of both counts of the plaintiffs complaint read: “While traveling on the westbound entrance ramp of said exit, the plaintiff lost control of the automobile and crashed into the guard rail, sustaining the injuries hereinafter set forth.” After reconsidering its earlier decision to strike paragraph ten entirely, the trial court instructed the jury: “I am striking that portion of paragraph ten from your consideration that reads ‘The plaintiff lost control of the automobile and crashed into the guardrail.’ I’m eliminating that from your consideration because I don’t recall any evidence of loss of control or crashing into the guardrail.”

       Although the plaintiff claims his constitutional right of trial by jury under article first, § 19, of the Connecticut constitution, which declares "[t]he right of trial by jury shall remain inviolate,” he conceded in oral argument that such right does not survive a lack of evidence on the issue of causation that would justify a directed verdict. See, e.g., Batick v. Seymour, 186 Conn. 632, 641, 443 A.2d 471 (1982) (“[t]he court has a duty to submit to the jury no issue upon which the evidence would not reasonably support a finding”); Buckley v. Lovallo, 2 Conn. App. 579, 583, 481 A.2d 1286 (1984) (“[a] directed verdict is appropriate ‘when the jury could not reasonably and legally have reached any other conclusion.’ Sestito v. Groton, 178 Conn. 520, 522, 423 A.2d 165 [1979]”); cf. Seals v. Hickey, 186 Conn. 337, 352, 441 A.2d 604 (1982) (“While we recognize the right of a court to set aside a jury verdict under proper circumstances, we acknowlege this fundamental right to trial by jury as ‘one obviously immovable limitation on the legal discretion of the court to set aside a verdict, since the constitutional right of trial by jury includes the right to have issues of fact as to which there is room for a reasonable difference of opinion among fair-minded men passed upon by the jury and not by the court. Camp v. Booth, 160 Conn. 10, 13, 273 A.2d 714 [1970].’ Mansfield v. New Haven, 174 Conn. 373, 375, 387 A.2d 699 [1978].” [Emphasis added.])