text:
    State of Connecticut v. Bernard Thomas
    (13285)
    Healey, Callahan, Glass, Covello and Hull, Js.
    Argued November 10, 1988
    decision released February 28, 1989

      Raymond T. DeMeo and Frances Erlichson, with whom, on the brief, was Michelle DeGarmeaulx, for the appellant (defendant).

      Timothy J. Sugrue, deputy assistant state’s attorney, with whom, on the brief, was Kevin McMahon, assistant state’s attorney, for the appellee (state).
   Hull, J.

The defendant, Bernard Thomas, was convicted after a jury trial of robbery in the first degree in violation of General Statutes § 53a-134 (a) (3), burglary in the first degree in violation of General Statutes § 53a-101 (a) (1), kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (B), and carrying a dangerous weapon in violation of General Statutes § 53-206. He received a total effective sentence of thirty-three years imprisonment, suspended after twenty years. On appeal, the defendant claims that the trial court erred: (1) in denying his motions for judgment of acquittal with respect to the charge of burglary in the first degree; (2) in its instructions to the jury with respect to the charge of burglary in the first degree; (3) in failing to order a timely correction of the state’s information; and (4) in denying his motion for a new trial. We conclude that the trial court erred in denying the defendant’s motions for judgment of acquittal on the charge of first degree burglary and therefore remand the case to the trial court with direction to render a judgment of acquittal on that charge. We find no error with respect to the defendant’s remaining claims.

The jury could reasonably have found the following facts. At about 5:30 a.m. on April 19,1986, the A-l convenience store located on Maple Avenue in Hartford opened for business. The store was staffed by one clerk, Christopher Dugan. Prior to opening the store, Dugan performed several tasks that he routinely was required to do, including placing a “standard amount” of money—approximately $70—in the cash register located on the store counter. This money was taken by Dugan from a pouch that was situated next to the cash register. At approximately 5:45 a.m., the defendant walked into the store. After picking up a sandwich and a container of juice and putting them on the store counter, the defendant told Dugan that he had left his wallet in his car and that he would be “right back” to pay for the items. He then exited the store. When the defendant reentered the store, Dugan was in a corner of the store preparing coffee. The defendant approached Dugan from behind, placed an arm around his neck, and touched a pointed instrument to his back. He forced Dugan into a bathroom in the rear of the store and ordered him not to move. The door to the bathroom was unlocked. The defendant then went to the front of the store to the area behind the cash register. Meanwhile, Dugan was able to switch on the store’s surveillance camera and silent alarm, and then locked himself in the bathroom.

Hartford police officer Michael Gerasimovich was less than one block away from the store when he received the report of the silent alarm. Gerasimovich responded without delay and, upon his arrival at the scene, he observed the defendant standing in the open doorway of the store, gesturing him to come inside. The defendant told Gerasimovich that he was the victim of a robbery and that the perpetrator was in the back room of the store. Gerasimovich did not recognize the defendant as a store employee, and when the defendant attempted to force his way past Gerasimovich, Gerasimovich restrained him, and a struggle ensued. At this point, another Hartford police officer, Sebastian Basile, arrived at the scene and immediately went to the aid of Gerasimovich. During the officers’ struggle with the defendant, Basile grabbed a knife and a straight razor that he saw underneath the defendant’s jacket and threw them to the ground. The officers also removed from the defendant’s possession the money pouch that had been on the counter next to the cash register when the defendant first entered the store. The pouch contained $130.

The store’s surveillance camera recorded much of the incident. The video tape showed a man, identified as the defendant, behind the store counter attempting unsuccessfully to open the cash register. The defendant’s scuffle with the police officers was also recorded on the video tape. The video tape was entered into evidence at the trial and viewed several times by the jury and the witnesses. The defendant did not testify on his own behalf at trial nor did he present any witnesses or evidence.

I

The defendant moved for judgment of acquittal on the charge of burglary in the first degree on three separate occasions during the course of the trial: once at the close of the state’s evidence, once after the defense rested, and a final time following the jury’s return of a verdict of guilty. See Practice Book §§ 883, 899. The defendant appeals challenging the trial court’s denial of these motions.

First degree burglary in Connecticut is defined in General Statutes § 53a-101 (a) as follows: “A person is guilty of burglary in the first degree when he enters or remains unlawfully in a building with intent to commit a crime therein and: (1) He is armed with explosives or a deadly weapon or dangerous instrument, or (2) in the course of committing the offense, he intentionally, knowingly or recklessly inflicts or attempts to inflict bodily injury on anyone.” For purposes of § 53a-101 (a), the words “enters or remains unlawfully” are further defined in General Statutes § 53a-100 (b): “A person ‘enters or remains unlawfully’ in or upon premises when the premises, at the time of such entry or remaining, are not open to the public and when the actor is not otherwise licensed or privileged to do so.”

In his first motion for judgment of acquittal on the burglary charge, made at the close of the state’s evidence, the defendant contended that the evidence introduced by the state at trial was insufficient to establish that his actions fell within the parameters of burglary in the first degree as that crime is defined by §§ 53a-101 (a) and 53a-100. Specifically, the defendant argued that he could not have “enter[ed] or remainjed] unlawfully” on the premises, as required by § 53a-101 (a), because that element of the crime, as fully defined by § 53a-100 (b), can occur only where the premises are “not open to the public.” Since the convenience store was, admittedly, open for business to the public at the time the defendant committed the alleged burglary therein, the defendant claimed that the state had failed to meet its burden of proving beyond a reasonable doubt an essential element of the crime charged, i.e., an unlawful entry or remaining by the defendant, and that a judgment of acquittal should therefore be entered on the burglary charge.

In response to the defendant’s argument, the trial court noted that a diagram of the A-l convenience store was introduced into evidence at trial and that this diagram included a depiction of the store counter and the area behind the counter. The court stated that an inference could be drawn that the area behind the counter, where the defendant concededly went in an attempt to open the cash register, was for employees only and thus not open to the public. The trial court then denied the defendant’s motion for judgment of acquittal on the burglary charge. Presumably, the trial court’s denial of the defendant’s motion was predicated on its belief that there was sufficient evidence introduced at trial that would reasonably permit the jury to find that the area behind the store counter was not open to the public and, hence, that an unlawful entry or remaining under the burglary statute had indeed been committed by the defendant.

On appeal, the defendant has shifted the focus of his argument, claiming that, since an unlawful entry or remaining under § 53a-101 (a) must occur “in a building,” the trial court’s ruling that there was sufficient evidence to establish that an unlawful entry or remaining occurred in the area behind the store counter can be upheld only if that area may be considered a “building” within the meaning of the statute. The defendant maintains, however, that the area encompassed by the store counter cannot, under any reasonable interpretation, be regarded as a “building” as that term is used in the burglary statute. Thus, it is the defendant’s position that the state’s evidence was insufficient to establish this essential element of the crime, and that the trial court therefore erred in denying his motions for judgment of acquittal. We agree.

For purposes of first degree burglary under § 53a-101 (a), the term “building” is defined separately in § 53a-100 (a) (1) as follows: “Where a building consists of separate units, such as, but not limited to separate apartments, offices or rented rooms, any unit not occupied by the actor is, in addition to being a part of such building, a separate building . . . . ” We conclude that under no stretch of the statutory language can the counter area of the A-l convenience store be deemed a “building” as that term is defined in § 53a-100 (a) (1). The store counter, and the area it encompasses, clearly does not fall within the “separate unit” category of offices, rooms or like structures that may themselves be considered “separate building[s]” under § 53a-100 (a) (1), nor have we discovered a case that even remotely suggests that the counter area of a commercial establishment may be considered a “building” in the context of a burglary statute. Thus, in the absence of a legally identifiable “separate unit” within the A-l convenience store, the entire store itself must be deemed the relevant structure for purposes of determining whether the defendant unlawfully entered or remained in a “building” in violation of § 53a-101 (a). Since it is undisputed that the store was open for business at the time of the alleged burglary, and since the defendant entered no “separate unit” within the store, it follows that his entry and remaining in the area behind .the counter was not “unlawful” under §§ 53a-101 (a) and 53a-100. Therefore, the state failed to prove an essential element of the crime charged, and it was error for the court to deny the defendant’s motions for judgment of acquittal.

The state, however, proffers an alternate ground for sustaining the trial court’s ruling that merits brief discussion. See Practice Book § 4013 (a) (1). Conceding that the only “building” involved in this case with respect to the burglary charge is the A-l convenience store itself, the state contends, nevertheless, that the defendant “unlawfully remained” in the store in violation of § 53a-101 (a). Since § 53a-100 (b), the relevant definitional section, provides that an unlawful remaining can occur only when the premises are “not open to the public,” the fact that the store was open for business to the public at the time of the alleged burglary, would appear to render the state’s position untenable. The state, however, advances a novel interpretation of the phrase “not open to the public,” contained in § 53a-100 (b), in an attempt to establish that the defendant unlawfully remained on the store premises. The state submits the proposition that a store, like A-l, is “open” to the public only for purposes that are in accord with the store’s commercial function, but that a store is “not open” for any purposes inconsistent with that function. Thus, the state argues, when the defendant, once inside the store, manifested an intent to carry out a criminal purpose by forcing the clerk into the bathroom at knifepoint, his actions were incompatible with the store’s commercial function and, consequently, the store was no longer “open to the public.” The state maintains that under this proposed interpretation there was sufficient evidence introduced at trial to permit the jury to find that the defendant had “unlawfully remained” in a building.

The state’s argument is an innovative one. We refuse, however, to adopt this unique construction of the phrase “not open to the public” for purposes of defining an “unlawful remaining.” Rather, we find that the comments of the Connecticut commission to revise the criminal statutes more accurately reflects the type and scope of activity that was intended by the legislature to constitute an unlawful remaining under §§ 53a-101 (a) and 53a-100 (b). The commission commented as follows: “enter or remain unlawfully. The purpose of this definition is to make clear that only the kind of entry or remaining which is likely to terrorize occupants is prohibited by the crime of burglary. Thus, when the building is, at the time, open to the public, or the actor is otherwise licensed or priviliged to be there, the element of terror is missing and the requirement is not met. This does not mean, however, that an initial lawful entry followed by an unlawful remaining would be excused. For example, A enters an office building during business hours—a lawful entry since the building is open to the public—and remains, perhaps hidden, after the building is closed, with intent to steal. A is guilty of burglary. ” (Emphasis added.) Commission to Revise the Criminal Statutes, Penal Code Comments, Connecticut General Statutes (1969) pp. 52-53. This example cited by the commission, which represents the paradigm of an unlawful remaining under our burglary statutes, clearly does not encompass the conduct of the defendant in this case. Further, we decline to expand the definition of an unlawful remaining, as urged by the state, to include the manifestation of an unlawful intent, such as that exhibited by the defendant, on store premises, while such premises are open for business to the public.

Accordingly, we conclude that the court erred in failing to grant the defendant’s motions for judgment of acquittal on the charge of burglary in the first degree and, therefore, we remand the matter to the trial court with direction to set aside the judgment of conviction on that charge and to render a judgment of acquittal thereon.

II

The defendant next claims that the trial court erred in failing to order a timely correction of the state’s amended information and that he was denied a fair trial as a result. The following facts are relevant to this claim. The four count amended information alleged, inter alia, that the defendant committed the crime of “carrying dangerous weapons” (emphasis added) in violation of General Statutes § 53-206. The final bill of particulars, however, alleged that the defendant carried only one weapon, a knife, during the incident. The jury was allowed to examine these charging documents during its deliberations.

During the course of the trial, the state offered two weapons into evidence: a knife with a six-inch blade, and a straight razor, both of which were found on the defendant’s person during his struggle with the police officers. The defendant objected to the admission into evidence of the razor as irrelevant since, under the final bill of particulars, he was charged with carrying only the knife. The state, however, said that it was offering the razor for the limited purpose of demonstrating the defendant’s intent to commit the other crimes with which he was charged, i.e., robbery, kidnapping and burglary. After argument by counsel out of the presence of the jury, the court permitted the introduction of the straight razor into evidence to show intent.

The defendant claims on appeal that the variance between the charging documents on the weapons charge, coupled with the introduction into evidence of both the knife and the straight razor, confused the jury by leaving them “with the erroneous impression that the defendant was being charged with the possession of more than one weapon.” The defendant appears to argue that this variance, taken together with the admission into evidence of the straight razor, misled the jury into believing it could convict the defendant on the weapons charge on the basis of his possession of the straight razor, when in fact the state was limited, under the bill of particulars, to proving that charge by demonstrating that the defendant was carrying a knife only. The defendant maintains that the trial court's failure to prevent this purported jury confusion by ordering a timely correction of the variance constituted an abuse of the court’s discretion and denied him his right to a fair trial. We are unpersuaded.

The trial court was apprised by defense counsel during the trial of the variance between the amended information and the final bill of particulars with respect to the weapons charge. Instead of ordering a correction of the variance; see Practice Book § 833; the court permitted the jury to review these charging documents with the discrepancy unremedied. This was error. See State v. Avis, 209 Conn. 290, 307-308, 551 A.2d 26 (1988). This determination, however, does not end our inquiry. “In order to constitute reversible error . . . the ruling must be both erroneous and harmful. State v. Annunziato, 169 Conn. 517, 524, 363 A.2d 1011 (1975). The burden of proving harmful error rests on the party asserting it; State v. Dolphin, 178 Conn. 564, 571, 424 A.2d 266 (1979); and the ultimate question is whether the erroneous action would likely affect the result. State v. McClain, 171 Conn. 293, 300, 370 A.2d 928 (1976).” Manning v. Michael, 188 Conn. 607, 611, 452 A.2d 1157 (1982).

The trial transcript discloses that, after the straight razor was admitted into evidence, the members of the jury were immediately given a cautionary instruction by the court that it was being offered not as the weapon used in any of the crimes charged, but solely to demonstrate the intent of the defendant to commit those crimes. Further, in its final charge to the jury, the court reiterated the limited purpose for which the razor was admitted into evidence: “Some testimony and exhibits have been received for limited purposes. Where I have given a limiting instruction you must follow it. As I recall, the State offered the razor. The straight razor. Not to prove carrying a dangerous weapon in the fourth count. But on the issue of intent. And since it was received into evidence for that purpose, you should use the razor for the purpose for which it is offered[,] on the claim of [the] intent of the defendant.” (Emphasis added.) Later, in its instructions with respect to the charge of carrying a dangerous weapon, the court again indicated that the weapon to be considered for purposes of that charge was the knife, not the straight razor.

Any potential prejudice to the defendant that might otherwise have arisen due to the uncorrected variance between the charging documents on the weapons possession charge was, in our view, neutralized by the court’s instructions to the jury. See State v. Avis, supra, 308. Accordingly, we conclude that the court’s failure to order a timely correction of the variance between the amended information and the final bill of particulars was harmless error.

III

Finally, the defendant assigns error to the court’s denial of his motion for a new trial. See Practice Book § 902. A judgment of acquittal having been directed on the burglary charge, our review of the defendant’s claim is confined to the remaining charges of which he was found guilty. “Appellate review of the denial of a motion ... for a new trial is limited to a determination of whether the trial court abused its discretion. See State v. Asherman, 193 Conn. 695, 735, 478 A.2d 227 (1984).” State v. Rothenberg, 195 Conn. 253, 264, 487 A.2d 545 (1985). Our review of the record leads us to conclude that the trial court did not abuse its discretion in denying the defendant’s motion for a new trial. There is no error.

There is error in part, the case is remanded with direction to set aside the judgment of conviction on the charge of burglary in the first degree and to render judgment of acquittal thereon.

In this opinion the other justices concurred.

       The defendant was sentenced on the charges as follows: first degree kidnapping, eighteen years, suspended after five years; first degree robbery, fifteen years, to run consecutively with the sentence for kidnapping; first degree burglary, seven years, to run concurrently with the sentence for robbery; carrying a dangerous weapon, two years, to run concurrently with the sentence for robbery.

       Practice Book § 883 provides: “Motions for a directed verdict of acquittal and for dismissal when used during the course of a trial are abolished. Motions for a judgment of acquittal shall be used in their place. After the close of the prosecution’s case in chief or at the close of all the evidence, upon motion of the defendant or upon his own motion, the judicial authority shall order the entry of a judgment of acquittal as to any principal offense charged and as to any lesser included offense for which the evidence would not reasonably permit a finding of guilty. Such judgment of acquittal shall not apply to any lesser included offense for which the evidence would reasonably permit a finding of guilty.”
      Practice Book § 899 provides: “If the jury return a verdict of guilty, the judicial authority, upon motion of the defendant or upon his own motion, shall order the entry of a judgment of acquittal as to any offense specified in the verdict, or any lesser included offense, for which the evidence does not reasonably permit a finding of guilty beyond a reasonable doubt. If the judicial authority directs an acquittal for the offense specified in the verdict, but not for a lesser included offense, he may either:
      “(1) Modify the verdict accordingly; or
      “(2) Grant the defendant a new trial as to the lesser included offense.”

       The exchange between defense counsel and the court concerning this issue was as follows:
      “Ms. Storey: The store here wasn’t closed, had not been closed, and I think the State’s evidence cannot sustain a burglary in the first degree charge. I think also there is a—
      “The Court: There was testimony in this case from Mr. Dugan. That [store] counter was drawn at the Court’s request, it delineates an area on your diagram to the left of the entranceway, or corridor that’s for employees only.
      “Ms. Storey: I don’t believe he said it was for employees only. I believe he drew the counter on there, and he did testify there were no signs, I believe that said employees only. There were no chains across. It doesn’t have a separate locked door.
      “The Court: There is an inference to be drawn that the area where the register, the gas counter and the other machinery are located on your diagram, the left front are not available to the public. The testimony is clear in reference that it is not for public use.”

       The second and third motions for judgment of acquittal made by the defendant on the burglary charge were denied by the court without oral argument from counsel.

       The state offers no rebuttal to the defendant’s attack upon the court’s ruling and, in fact, concedes that the counter area is not a “building” for purposes of the burglary statute. The state does, however, offer alternate grounds upon which the court’s ruling may be affirmed; see Practice Book § 4013 (a) (1); which are addressed later in this opinion.

       Our ruling on this point renders moot the defendant’s second claim of error regarding the court’s instructions to the jury on the burglary charge and, thus, we decline to address it.

       “[General Statutes] Sec. 53-206. carrying and sale of dangerous weapons, (a) Any person who carries upon his person any slung shot, air rifle, BB. gun, blackjack, sand bag, metal or brass knuckles, or any dirk knife, or a switch knife, or any knife having an automatic spring release device by which a blade is released from the handle, having a blade of over one and one-half inches in length, or stiletto, or any knife the edged portion of the blade of which is four inches or over in length . . . or any other dangerous or deadly weapon or instrument, unless such person has been granted a written permit issued and signed by the first selectman of a town, the mayor or chief of police of a city or the warden of a borough, authorizing such person to carry such weapon or instrument within such town, city or borough, shall be fined not more than five hundred dollars or imprisoned not more than three years or both. No permit shall be issued to any applicant who has ever been convicted of a felony. The issuing authority may request the applicant’s fingerprints and full information concerning his criminal record and make an investigation concerning the suitability of the applicant to carry any such weapon. Refusal of fingerprinting by the applicant shall be sufficient cause to refuse issuance of a permit. Whenever any person is found guilty of a violation of this subsection, any weapon or other implement within the provisions hereof, found upon the body of such person, shall be forfeited to the municipality wherein such person was apprehended, notwithstanding any failure of the judgment of conviction to expressly impose such forfeiture. Any person who has been granted a permit to carry any martial arts weapon pursuant to this section may carry such weapon anywhere within the state. The provisions of this subsection shall not apply to any officer charged with the preservation of the public peace nor to any person who is found with any such weapon or implement concealed upon his person while lawfully removing his household goods or effects from one place to another, or from one residence to another, nor to any person while actually and peaceably engaged in carrying any such weapon or implement from his place of abode or business to a place or person where or by whom such weapon or implement is to be repaired, or while actually and peaceably returning to his place of abode or business with such weapon or implement after the same has been repaired.”

       “ ‘The bill of particulars does not become part of the [information]. See 4 Wharton, Criminal Law and Procedure, § 1870. See generally 41 Am. Jur. 2d, Indictments and Informations, §§ 168-65.’ State v. Glass, 107 R.I. 86, 92, 265 A.2d 324 (1970). It does, however, limit the state to proving that the defendant committed an offense ‘in substantially the manner described.’ State v. Ruiz, 171 Conn. 264, 270, 368 A.2d 222 (1976). . . .” (Citations omitted; brackets in original.) State v. Roque, 190 Conn. 143, 154-55, 460 A.2d 26 (1983). The state’s final bill of particulars mentions only that a knife, not a straight razor, was used by the defendant in connection with the crimes charged. Thus, with respect to the weapons charge, the state was limited to proving that the defendant was carrying a knife.

       Practice Book § 833 provides: “When any bill of particulars is ordered, an amended or substitute information shall be filed incorporating its provisions.”

       “[The Court:] I want the record to reflect the jury is back. A straight razor with the tag in your absence was marked as a full exhibit. If you will recall in my preliminary suggested instructions to you, it is possible in a trial for something to be admitted for a limited purpose and not for other purposes. I am instructing you that this razor has been admitted as a full exhibit. As you may recall, there are four counts. The bill of particulars indicates the State claims a confrontation by the defendant with the clerk with a knife. Now, the knife is already marked Exhibit A. This razor, Exhibit E, is offered not to show a use under any of the counts as the instrument used. This razor is used for the purposes of showing or intending to show intent, which is an element in the crimes, in the crimes charged. So, this is just a preliminary caution. This is not to be used for all purposes. It is admitted to show on the issue of intent. I will again state that in the final charge for you.”

       “[The Court:] As to the fourth count, the defendant is charged with carrying a dangerous weapon. A person who carries on his person any knife, the edged portion of the blade of which is four inches or over in length, unless such person has been granted a written permit authorizing the person to carry such weapon or instrument within the town, such person commits the crime of carrying a dangerous weapon. . . . There has been evidence adduced that there was no written permit issued and signed by the police or the chief of police authorizing Bernard Thomas . . . to carry a knife. And if you believe the elements someone who carries on his person a knife the edged portion of the blade which is four inches or over unless the person has a permit such person without a permit commits the crime of carrying a dangerous weapon.”

       Practice Book § 902 provides: “Upon motion of the defendant, the judicial authority may grant him a new trial if it is required in the interests of justice. Unless the defendant’s noncompliance with these rules or with other requirements of law bars his asserting the error, the judicial authority shall grant the motion:
      “(1) For an error by reason of which the defendant is constitutionally entitled to a new trial; or
      “(2) For any other error which the defendant can establish was materially injurious to him.
      “If the trial was by the court and without a jury, the judicial authority, with the defendant’s consent and instead of granting a new trial, may vacate any judgment entered, receive additional evidence, and direct the entry of a new judgment.”

       In view of the fact that the defendant’s seven year sentence on the burglary charge was to run concurrently with his fifteen year sentence on the robbery charge; see footnote 1, supra; resentencing of the defendant is unnecessary.


source: Caselaw Access Project

author: Peters, C. J.

license: Public Domain

text:
    Henry O. Briggs v. State Employees Retirement Commission
    (13425)
    Peters, C. J., Healey, Shea, Callahan and Covello, Js.
    Argued January 4
    decision released February 28, 1989

      Richard T. Sponzo, assistant attorney general, with whom, on the brief, were Clarine Nardi Riddle, acting attorney general, Joseph I. Lieberman, former attorney general, and Charles A. Overend, assistant attorney general, for the appellant (defendant).

      Keith Bradoc Gallant, with whom were Edward Gallant and, on the brief, Betty G. Levy, for the appellee (plaintiff).
   Peters, C. J.

We limited our grant of certification in this appeal to the following issue: did the Appellate Court err in concluding that the defendant state employees retirement commission was required as a matter of law to find from the evidence that the plaintiff had become “permanently disabled from continuing to render the service in which he has been employed as the result of any injury received while in the performance of his duty as a state employee” pursuant to General Statutes § 5-169 (b). As recounted in the Appellate Court’s opinion, Briggs v. State Employees Retirement Commission, 13 Conn. App. 477, 538 A.2d 225 (1988), the plaintiff, Henry O. Briggs, brought an administrative appeal to the Superior Court seeking to overturn the defendant’s decision denying his application for service connected disability retirement benefits pursuant to § 5-169 (b). The Appellate Court found error in the trial court’s dismissal of the plaintiff’s appeal. We reverse.

The underlying facts are fully reported in the opinion of the Appellate Court. The plaintiff, a mental health worker at Norwich Hospital, a state facility, was injured as a result of a violent attack by a patient. Id., 478. In his application for service connected permanent disability retirement benefits pursuant to § 5-169 (b), the plaintiff claimed that this attack had left him permanently disabled both physically and psychiatrieally. Id., 479. The medical examining board held two hearings on the plaintiff’s application, at which the plaintiff presented medical reports, testified and responded at length to questioning by the physician members of the board. Id., 479-80. Upon its initial consideration of the plaintiffs evidence, and again upon reconsideration after the second hearing, the board denied the plaintiffs application. Id., 480. The plaintiff then filed a request for review with the defendant commission. Id.; see General Statutes § 5-155a (k). The defendant’s decision upheld the conclusion reached by the board in accordance with its administrative policy of deferring to the board’s medical expertise with regard to medical issues. Id., 480 and n.5.

The trial court dismissed the plaintiff’s appeal from the defendant’s decision, concluding that the board had not acted either arbitrarily or illegally in denying the plaintiffs application. Although the plaintiff renewed all of his claims of error in the Appellate Court, that court sustained the plaintiff’s appeal on one ground only: that the board’s decision was contrary to the evidence with regard to the alleged permanency of his psychiatric disability. Id., 480. On this issue, the Appellate Court concluded that “[t]he totality of the evidence before the board constituted substantial evidence as a matter of law that the plaintiff suffered a psychiatric disability resulting from the attack at Norwich Hospital, which rendered him permanently incapable of continuing to perform services as a mental health worker.” Id., 489. Accordingly, the Appellate Court found error in the trial court’s judgment and remanded the case with direction to order the defendant to grant the plaintiff’s application for disability retirement benefits. Id. We agree with the trial court’s resolution of this issue.

The “substantial evidence” rule governs judicial review of administrative factfinding under General Statutes (Rev. to 1987) § 4-183 (g). Huck v. Inland Wetlands & Watercourses Agency, 203 Conn. 525, 539-41, 525 A.2d 940 (1987); Lawrence v. Kozlowski, 171 Conn. 705, 713-14, 372 A.2d 110 (1976), cert. denied, 431 U.S. 969, 97 S. Ct. 2930, 53 L. Ed. 2d 1066 (1977). An administrative finding is supported by “substantial evidence” if the record affords a “ ‘ “substantial basis of fact from which the fact in issue can be reasonably inferred.” ’ ” Huck v. Inland Wetlands & Watercourses Agency, supra, 541, quoting Lawrence v. Kozlowski, supra, 713. Such a standard of review allows less room for judicial scrutiny than does the “weight of the evidence” rule or the “clearly erroneous” rule. Huck v. Inland Wetlands & Watercourses Agency, supra. In determining whether an administrative finding is supported by “substantial evidence,” a court must defer to the agency’s assessment of the credibility of the witnesses and to the agency’s right to believe or disbelieve the evidence presented by any witness, even an expert, in whole or in part. Id., 540-42. An agency composed of physicians is entitled, furthermore, to rely on its own expertise within the area of its professional competence. Feinson v. Conservation Commission, 180 Conn. 421, 428, 429 A.2d 910 (1980); Jaffe v. State Department of Health, 135 Conn. 339, 349-50, 64 A.2d 330 (1949). Basically, an agency is not “required to use in any particular fashion any of the materials presented to it so long as the conduct of the hearing is fundamentally fair. Manor Development Corporation v. Conservation Commission, 180 Conn. 692, 697, 433 A.2d 999 (1980).” Huck v. Inland Wetlands & Watercourses Agency, supra, 542.

The factual issue before us is a narrow one. The medical examining board found, in accordance with the plaintiffs application, that the incident at Norwich Hospital had caused him to have a psychiatric disability, diagnosed by his psychiatrist as “[p]ost-traumatic stress disorder, chronic.” Briggs v. State Employees Retirement Commission, supra, 485 n.8. The board found, however, that the plaintiff had presented insufficient evidence of the permanency of his psychiatric condition. The board observed that the psychiatrist’s initial report finding a “chronic” disability had indicated both the desirability of further treatment and that treatment had been “prematurely terminated.” Id., 483. A subsequent report, stemming from the same psychiatrist’s reevaluation of the plaintiff approximately one year later, noted that medication had led to some improvement in the plaintiff’s condition but had not alleviated other symptoms of the plaintiff’s chronic stress disorder. The psychiatrist therefore expressly found the plaintiff “permanently disabled.” Id., 486-87 n.9. It was this ultimate finding that the board rejected.

The Appellate Court based its conclusion that the board’s finding should be overturned on two premises: first, that the board based its finding solely on its interpretation of the two reports submitted by the plaintiff’s psychiatrist; and second, that the board’s interpretation of these reports was untenable. Id., 484, 487. In our view, the Appellate Court took too narrow a view of the independent role that § 5-169 (c) assigns to the board, a board exclusively composed of physicians, in determining what constitutes a permanent disability.

Our analysis begins with the proposition that an applicant for service connected permanent disability benefits must make an affirmative showing that he or she has met the requirements of § 5-169 (b). If the applicant does not immediately satisfy the burden of proof that the statute imposes, it is possible, as this case illustrates, to ask for reconsideration when additional facts concerning the applicant’s condition become available. General Statutes § 5-169 (d). Until a proper factual showing has been made, however, there is no presumptive entitlement to permanent disability benefits. The board therefore had no duty to rebut the evidence produced on the plaintiff’s behalf if it concluded that the plaintiff had not satisfied his burden of proof.

In evaluating the evidence before it, the board was obligated to exercise its independent judgment about the sufficiency of the evidence with regard to the permanency of the plaintiff’s condition. Because of its professional expertise, “the determination of the plaintiff’s entitlement to disability retirement benefits required the exercise of discretion by the [board].” Tremblay v. State Employees’ Retirement Commission, 170 Conn. 410, 415, 365 A.2d 1125 (1976); Riley v. State Employees’ Retirement Commission, 178 Conn. 438, 441-42, 423 A.2d 87 (1979). The board was required to bring its medical judgment to bear not only on its evaluation of the reports of the plaintiff’s psychiatrist, but also on its appraisal of the plaintiff’s own extensive testimony about his mental condition at each of the two hearings on his application. The board expressly noted its reliance on “the testimony presented” as well as “the documentation admitted into evidence” in the two decisions it rendered in this case. See Brookfield v. Candlewood Shores Estates, Inc., 201 Conn. 1, 5-6, 513 A.2d 1218 (1986).

In light of the testimony presented at the hearings, the board was entitled to conclude that the plaintiff had presented insufficient evidence of the permanency of his disability. Certainly the board was not bound by the expert opinion of the plaintiff’s psychiatrist on the permanency of his condition. That was the ultimate issue before the board and only the board could decide it. Cf. State v. Vilalastra, 207 Conn. 35, 41, 540 A.2d 42 (1988). Even more than lay finders of fact, the board was free to accept what it found persuasive in the psychiatrist’s reports and to disregard the rest. Cf. Ferri v. Pyramid Construction Co., 186 Conn. 682, 690, 443 A.2d 478 (1982); National Folding Box Co. v. New Haven, 146 Conn. 578, 586, 153 A.2d 420 (1959); C. Tait & J. LaPlante, Handbook of Connecticut Evidence (2d Ed. 1988) § 7.16.6. Indeed, the plaintiff himself, in his testimony, confirmed the observation in the supplemental psychiatric report that his condition had improved under medication. Concerned about the desirability of further treatment, the board might have taken into account the plaintiff’s failure to explore alternatives to the private psychiatric consultation that he allegedly could no longer afford once his workers’ compensation payments ended.

Accordingly, the Appellate Court was mistaken in its determination that the totality of the evidence before the board constituted substantial evidence of a permanent psychiatric disability as a matter of law. Since the plaintiffs appeal raised additional grounds for overturning the trial court’s judgment that the Appellate Court did not consider, we must remand this case to the Appellate Court in order to afford the plaintiff a fair disposition of all his claims of error.

The judgment of the Appellate Court is reversed and the case is remanded for further proceedings in accordance with this opinion.

In this opinion the other justices concurred.

       General Statutes § 5-169 (b) provides in relevant part: “If a member [of the state employees retirement system], while in state service, becomes permanently disabled from continuing to render the service in which he has been employed as a result of any injury received while in the performance of his duty as a state employee, such member is eligible for disability retirement regardless of his period of state service.”

       General Statutes § 5-169 (c) provides in relevant part: “The governor shall appoint a board of seven physicians, each of whom is a state employee and two of whom shall be experienced in psychiatry, to serve at his pleasure as a medical examining board to determine whether each applicant for disability retirement is entitled thereto.”

       General Statutes § 5-155a (k) provides: “If any claim is denied, a claimant may request that the decision be reviewed and reconsidered by the commission. Thereafter, any contested case shall be decided in accordance with chapter 54.”

       The Appellate Court did not reach the plaintiffs evidentiary claim that he had established a permanent orthopedic disability, or his legal claim that the defendant had employed an erroneous legal standard. Briggs v. State Employees Retirement Commission, 13 Conn. App. 477, 480 and nn. 4, 6, 538 A.2d 225 (1988).

       General Statutes (Rev. to 1987) § 4-183 (g) provides in pertinent part: “The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. . . . The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) In violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error of law; (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.”

       General Statutes § 5-169 (d) provides: “No reconsideration of a decision concerning eligibility for a disability retirement allowance or the discontinuance of such allowance shall be made by the board unless a member [of the state employees retirement system], upon application to the board for a redetermination, discloses additional facts concerning his condition at the date of termination of employment.”

       The American Medical Association’s “Guides To the Evaluation of Permanent Impairment,” p. 149, defines a “permanent condition” as “a condition which results in a substantial loss of function despite treatment and which has persisted and may persist for an indefinite period. For example, an acute depressive reaction usually responds to treatment and would not ordinarily be expected to last indefinitely. However, if a depressive reaction persists in spite of adequate treatment, it may be considered to be of indefinite duration and would justify a conclusion that a permanent loss of function may have occurred.”


author: Arthur H. Healey, J. Callahan, J.,

text:
    Connecticut National Bank v. Edward J. Esposito et al.
    (13491)
    Healey, Callahan, Glass, Hull and Ment, Js.

      Argued December 9, 1988
    decision released February 28, 1989

      Jackson T. King, Jr., with whom was Mary E. Holzworth, for the appellant (plaintiff).

      Clifford J. Grandjean, for the appellee (defendant TriContinental Leasing Corporation).
   Arthur H. Healey, J.

The question in this case is whether a purported mortgage deed, recorded in the Plainfield land records, satisfies common law standards of validity. An attorney trial referee and the trial court found that the mortgage was valid under those standards. We agree.

In an action by the plaintiff Connecticut National Bank to foreclose its judgment lien, an attorney trial referee found the following facts. On May 4,1984, the plaintiff obtained a judgment against the named defendant, Edward J. Esposito, in the Superior Court for the judicial district of Windham. On May 14,1984, the plaintiff filed its judgment lien in the Plainfield and Killingly land records to secure the judgment. The plaintiff’s lien applies to two parcels of real property in the town of Killingly and one in the town of Plain-field. As of the date of judgment, Esposito owed the plaintiff $150,345.03.

The purported mortgage deed is from the defendant Esposito to the defendant Tri-Continental Leasing Corporation (Tri-Con), and it applies to a portion of the parcel located in Plainfield on which the plaintiff has a judgment lien. The mortgage is dated July 10, 1981, and was recorded on July 27, 1981, in the Plainfield land records and thus is prior in time to the plaintiff’s judgment lien. The mortgage recites as consideration “advances made [by Tri-Con] for the benefit of Smith-field Glass, Inc. and to induce Mortgagee to enter into a Lease with said Smithfield Glass, Inc.....” The stated purpose of the mortgage was “[t]o secure to Mortgagee on condition of the repayment of all monies due Mortgagee under the Lease aggregating and repayable in accordance with the terms of said Lease plus all advances made at the request of Smithfield Glass, Inc. pursuant to a Progress Payment Agreement. A copy of said Lease and Progress Payment Agreement is attached hereto and made a part hereof.” The copies of the lease and progress payment agreement, however, were not attached to the mortgage or otherwise recorded in the land records. The attorney trial referee further found from the mortgage deed that “the role of the mortgagor (defendant, Edward J. Esposito) [is] a guarantor of the obligation of Smithfield Glass.”

The attorney trial referee found that the mortgage met the common law standards of validity. The referee stated that the omissions from the recorded mortgage would not mislead a title searcher and that the mortgage provided “reasonable notice” of the nature and amount of the mortgage and, therefore, was valid under this court’s holding in Dart & Bogue Co. v. Slosberg, 202 Conn. 566, 522 A.2d 763 (1987). The referee recommended a judgment of strict foreclosure against all defendants except Tri-Con.

On July 6, 1987, the plaintiff filed a motion to correct the report of the attorney trial referee, which the attorney trial referee denied. The plaintiff then filed a motion to correct, exception and objection to the report of the attorney trial referee on July 27, 1987. The Superior Court, Norm, J., heard argument on this motion on February 9, 1988, and on March 11, 1988, issued a memorandum of decision accepting the attorney trial referee’s report and rendered a judgment in accordance with that report. The plaintiff filed a timely appeal to the Appellate Court on March 30,1988, and this court transferred the case to itself on September 12, 1988, pursuant to Practice Book § 4023.

As a threshold matter, we address an issue that has not been fully explored by the parties but is necessary for our determination of the requisite record notice to be afforded to third parties by a recorded instrument that purports to be a mortgage under the circumstances of this case. That issue is whether the obligation in this case is, indeed, a mortgage. While the debate has centered on whether the obligation is valid, it appears that the attorney trial referee and the trial court assumed that the obligation is a mortgage. The parties’ dependence on Dart & Bogue Co. v. Slosberg, supra, a case involving a mortgage, throughout this litigation, is an indication that they also consider the obligation between Esposito and Tri-Con as a mortgage.

The purported mortgage deed that was recorded in the Plainfield land records states that the mortgagor, Esposito, “in consideration of advances made for the benefit of Smithfield Glass, Inc. and to induce the Mortgagee [Tri-Con] to enter into a Lease with said Smith-field Glass, Inc., grants and conveys to Mortgagee” a certain piece of property in Plainfield. Purportedly, the mortgage was given “[t]o secure to Mortgagee on condition of the repayment of all monies due mortgagee” under the lease that was referred to in the mortgage but was not recorded. The mortgage also states: “Upon payment and discharge of all sums secured by this Mortgage, this Mortgage shall become null and void and Lender shall release this Mortgage without charge to Mortgagor.”

We now must apply these facts to the case law in Connecticut to determine whether the obligation in this case is a mortgage at common law. This court has declared that “ ‘[t]he particular form of words of the conveyance is unimportant; and it may be laid down as a general rule, subject to few exceptions, that whenever a conveyance, assignment, or other instrument transferring an estate, is originally intended between the parties as a security for money or for any other incumbrance, whether this intention appear from the same instrument or any other, it is always considered in equity as a mortgage, and consequently is redeemable upon the performance of the conditions or stipulations thereof/ ” DeWolf v. Sprague Manufacturing Co., 49 Conn. 282, 319 (1881), quoting 2 J. Story, Equity Jurisprudence § 1018. “The condition of a mortgage may be the payment of a debt, the indemnity of a surety, or the doing or not doing any other act.” Cook v. Bartholomew, 60 Conn. 24, 25, 22 A. 444 (1891); see State v. Hurlburt, 82 Conn. 232, 236, 72 A. 1079 (1909); Jarvis v. Woodruff, 22 Conn. 546, 550-51 (1853); Gagan v. Leary, 14 Conn. Sup. 468, 470 (1946); see also 9 G. Thompson, Real Property (Grimes 1958) § 4659, p. 32. “In a title theory state such as Connecticut, a mortgage is a vested fee simple interest subject to complete defeasance by the timely payment of the mortgage debt.” Garrison v. Garrison, 190 Conn. 173, 177, 460 A.2d 945 (1983).

Under these definitions, it appears that the obligation in this case does qualify as a mortgage at common law. The transaction involved the conveyance of an estate in Plainfield to secure the payment of money due under a lease. The condition of the mortgage is the payment of that money by either Smithfield Glass, Inc., the principal under the lease, or by Esposito, as guarantor. Upon the satisfaction of that condition, the interest in the mortgagee is defeased and the mortgage becomes null and void. Therefore, although it does not appear that the attorney trial referee, the trial court or the parties fully explored this matter, we conclude that the obligation in issue in this case is a mortgage. We now must determine whether the mortgage is valid as against third parties, including the plaintiff.

It appears that the parties agree that the central question in this case is whether the mortgage is valid under our decision in Dart & Bogue Co. v. Slosberg, supra. Although the plaintiff argued in its brief that the purported mortgage did not satisfy the statutory requirements of General Statutes § 49-3 lb (a), it recognizes that in order to prevail, the mortgage also must be invalid under common law standards. The defendant Tri-Con does not claim that the mortgage satisfies the statutory requirements but only argues that the statute itself does not operate to invalidate its mortgage. Both parties acknowledge that our holding in Dart & Bogue Co. establishes § 49-3lb (a) as a “safe harbor” statute rather than an exclusive standard for testing the validity of mortgages. Thus, the question confronting us is whether the mortgage satisfies common law standards of validity.

Our opinion in Dart & Bogue Co. contained a comprehensive survey of the common law on mortgage deeds and their recording. In that case, we stated that the dispositive question in examining the validity of a mortgage is whether it provides “reasonable notice” to third parties of the obligation that is secured. Dart & Bogue Co. v. Slosberg, supra, 578, citing Sadd v. Heim, 143 Conn. 582, 585, 124 A.2d 522 (1956); Bridgeport Land & Title Co. v. Orlove Co., 91 Conn. 496, 498-99, 100 A. 30 (1917); Pettibone v. Griswold, 4 Conn. 158, 162 (1822). The purpose of such “reasonable notice” is to prevent parties that are not privy to the transaction from being defrauded or misled. Dart & Bogue Co. v. Slosberg, supra, citing Sadd v. Heim, supra; Bridgeport Land & Title Co. v. Orlove Co., supra, 499; Matz v. Arick, 76 Conn. 388, 391, 56 A. 630 (1904); 2 M. Merrill, Notice (1952) § 1067. A corrollary of this proposition is that “[e]rrors and omissions in the recorded mortgage that would not mislead a title searcher as to the true nature of the secured obligation do not affect the validity of the mortgage against third parties.” Dart & Bogue Co. v. Slosberg, supra, 579. In other words, the recorded mortgage deed does not need to “recite with particularity all of the details of the underlying transaction.” Id., 578-79.

In Dart & Bogue Co., we defined “reasonable notice” as “notice of the ‘nature and amount of the encumbrance which the mortgagor intends to place upon the land.’ ” Id., 579, quoting Sadd v. Heim, supra. “The ‘nature’ of a secured debt includes such fundamental characteristics as whether the debt is absolute or contingent, liquidated or unliquidated, or whether it is given to secure an existing liability or future advances. Sadd v. Heim, supra, 585-86; Merrills v. Swift, [18 Conn. 257, 265 (1847)]. The ‘amount’ of the debt is the dollar value of the obligation secured, to the extent that it can be ascertained at the time the mortgage is executed. If the debt cannot be definitively ascertained at that time, ‘such data must be set out with respect to that debt as will put anyone interested in the inquiry upon a track leading to discovery . . . . ’ Sadd v. Heim, supra, 586; Hamilton v. Nutt, 34 Conn. 501, 504 (1868); 1 L. Jones, Mortgages (8th Ed. 1928) § 1042.” Dart & Bogue Co. v. Slosberg, supra. Significantly, in Dart & Bogue Co., we recognized that “[t]he record is the starting point for inquiry, not . . . the starting and ending point.” Id., 580. In sum, if a party is able “ ‘by common prudence and by the exercise of ordinary diligence, [to] ascertain the extent of the encumbrance’ ” from information set out in the land records, then the mortgage is valid. Id., quoting First National Bank v. National Grain Corporation, 103 Conn. 657, 663, 131 A. 404 (1925).

We now turn to the application of the common law to the facts of this case to determine whether the mortgage is valid against subsequent creditors. We conclude that it is.

The facts of this case are peculiar and distinguishable from those cases cited by the plaintiff in which we invalidated mortgages under the common law. The purpose of preventing fraud, which underlies the common law rule, would not be furthered by invalidating the mortgage in this case, while it was furthered in the cases cited by the plaintiff.

In Sadd v. Heim, supra, this court held a mortgage invalid because there was an affirmative misidentification of the mortgage as security for a debt currently due when, in fact, half of the mortgage actually was to secure future advances. In North v. Belden, 13 Conn. 376 (1840), and Sanford v. Wheeler, 13 Conn. 164 (1839), we held mortgages invalid because in each case the obligation was affirmatively misidentified as absolute when they actually were contingent. In two other cases, Bridgeport Land & Title Co. v. Orlove Co., supra, and Hart v. Chalker, 14 Conn. 76 (1840), the deeds for the purported mortgages did not affirmatively misidentify the characteristics of the transaction, but omitted important characteristics and, unlike the present case, made no reference to other sources from which these characteristics could be discerned.

In contrast to these cases cited by the plaintiff, the present case involves the omission of documents that contain important details about the obligation but the existence of which documents was expressly referred to in the recorded mortgage deed. The mortgage deed does not affirmatively misidentify the characteristics of the obligation, thus leading a title searcher to believe that the obligation is something that it is not, nor does the omission of the documents leave a title searcher without any indication of the obligation’s nature or without a reasonable direction to discover the terms of the mortgage. The trial court accepted the attorney trial referee’s finding that the obligation of Esposito was that of a guarantor. Esposito’s guaranty obligation is plainly apparent from the acceleration clause in the recorded mortgage that begins: “Upon Mortgagor’s breach of his guaranty of the obligations of Smithfield Glass, Inc.....” Thus, the general nature of the underlying obligation is apparent to a title searcher from the record. Additionally, the address of the mortgagee appears on the first page of the mortgage, although without a zip code, and this facilitates further inquiry. We have already noted that the land records are the starting point for inquiry and not the ending point.

There is no question that the mortgage deed does not contain the amount of the obligation. Tri-Con maintains that the amount could not be ascertained readily because it depended on Smithfield Glass’s performance of its lease with Tri-Con. Although the attorney trial referee did not expressly adopt this argument in his factual findings, from examining his report, it is reasonable to assume that he did implicitly adopt it. In the last section of his report, the referee stated that he was repeating the defendant Tri-Con’s analysis in its brief of “reasonable notice” in order “to amplify the reasons” for his legal conclusions. In that section, the referee proffered the rule from Dart & Bogue Co. that if the debt cannot be ascertained, “ ‘such data must be set out with respect to that debt as will put anyone interested in the inquiry upon a track leading to discovery . . . . ’ ” Dart & Bogue Co. v. Slosberg, supra, 479. Following this discussion, the referee concluded: “For all of the foregoing reasons, the Tri-Con mortgage should be found to be valid and therefore an encumbrance senior in priority to the judgment lien the plaintiff seeks to foreclose.” Thus, we conclude that it is logical to infer that the attorney trial referee found the amount of the debt to be unascertainable but also found sufficient data to put a title searcher, exercising common prudence and ordinary diligence, on a track to discovery of the amount due in accordance with our holding in Dart & Bogue Co.

The plaintiff alleges that if we hold this mortgage to be valid, it would create a situation which “may lead to fraudulent and iniquitous attempts to defraud bonafide creditors and those holding subsequent encumbrances.” We do not believe that our holding, within the narrow circumstances of this case, will create such a situation and we decline to decide the case on this type of speculation. Although there may be a possibility of fraud in other cases with different circumstances, the facts of this case do not indicate fraud nor are they prone to fraud as others might be. The omitted documents were identified in the recorded mortgage and there were in-court assertions by defense counsel that the omission was due to inadvertence. Furthermore, the plaintiffs do not allege a fraudulent scheme in this case. Thus, if we were to hold the mortgage invalid, it would not further the purpose behind the “reasonable notice” requirement of preventing fraud.

In sum, the mortgage deed in this unique case contained sufficient information to inform one searching the land records of the general nature of the obligation and put the searcher on a track to inquire further and, through common prudence and ordinary diligence, discover the details of the mortgage transaction.

There is no error.

In this opinion Glass, Hull and Ment, Js., concurred.

Callahan, J.,

dissenting. The mortgage deed in this case apparently secures two obligations of the defendant Edward J. Esposito, i.e., his guarantee of lease payments and his guarantee to repay advances made by Tri-Continental Leasing Corporation to Smithfield Glass, Inc. The mortgage deed, however, fails to recite the amounts guaranteed, the date of the guarantees or a date the defendant’s obligations are to be discharged. Consequently, it is impossible to ascertain from the mortgage deed the term of the mortgage, the amounts secured, whether the defendant’s obligations are absolute or contingent, liquidated or unliquidated or whether the mortgage was given to secure an existing liability or future advances.

While the mortgage need not recite all the terms of the underlying obligations, it must give notice of the nature and amount of those obligations. Dart & Bogue Co. v. Slosberg, 202 Conn. 566, 581, 522 A.2d 763 (1987). This mortgage deed does neither. To affirm the validity of an open-ended security instrument such as the mortgage deed in this case poses a real danger that subsequent lien creditors may be misled or defrauded.

I dissent.

       The judgment lien related back to the date of attachment, December 21, 1983, because the lien was recorded within four months from the entry of the judgment. See General Statutes § 52-380a (b).

       It appears from the transcript that Connecticut National Bank sought foreclosure of its lien because there is insufficient alternative equity to satisfy the defendant’s debt to it.

       Tri-Con and Smithfield Glass, Inc., had entered into a written equipment lease on June 23,1981. Esposito guaranteed Smithfield Glass, Inc.’s obligation to Tri-Con under the lease by written agreement on July 18,1981.

       General Statutes § 49-31b (a) provides: “information in deed sufficient NOTICE AS TO NATURE AND AMOUNT OF OBLIGATION. DEED FOR VARIABLE rate mortgage loan, (a) A mortgage deed given to secure payment of a promissory note, which furnishes information from which there can be determined the date, principal amount and maximum term of the note, shall be deemed to give sufficient notice of the nature and amount of the obligation to constitute a valid lien securing payment of all sums owed under the terms of such note.”

       In addition to claiming that the Tri-Con mortgage did not satisfy the statute because it did not provide the date, principal amount or maximum term of the obligation, the plaintiff also argued in its brief that the mortgage did not satisfy the statute because the purpose of the mortgage was to secure the repayment of monies due under a lease. The plaintiff suggests that, according to its express terms, the statute is intended to apply only to security for payment of a promissory note. On the other hand, the defendant Tri-Con claims that this discrepancy makes the statute inapplicable rather than unsatisfied. Because the defendant, however, does not argue that the statute was satisfied in this case even if it were applicable, we need not decide whether General Statutes § 49-31b (a) is applicable to security for repayment of monies under a lease, and, instead, we resort to a common law analysis of the mortgage.

       In Bridgeport Land & Title Co. v. Orlove, 91 Conn. 496, 100 A. 30 (1917), a condition in the mortgage provided that, if the grantor could save the grantee harmless within eighteen months of the date of the mortgage from losses caused by the grantor’s failure to deliver “certain flour” to the grantee, then the mortgage was to be void. We held that the use of the term “certain flour” was too vague and indefinite to inform third parties of the obligation’s nature, and thus the mortgage was invalid. Id., 499. The mortgage deed omitted important details about the transaction and did not identify other sources where this information could be found.
      In Hart v. Chalker, 14 Conn. 76 (1840), the mortgage omitted the amount of the debt. This court noted that the debt was ascertainable and should have been stated in the deed. Id., 79. Again, there was no reference to any other instrument stating the amount of the debt.


author: Hull, J.

text:
    The Stop and Shop Companies, Inc. v. Town of East Haven The Stop and Shop Companies, Inc. v. City of New Haven
    (13405)
    (13428)
    Peters, C. J., Callahan, Glass, Covello and Hull, Js.
    Argued December 7, 1988
    decision released February 28, 1989

      Richard Wulsin, pro hac vice, with whom were Thomas A. Rouse and, on the brief, Christopher M. Reeves, for the appellant in both cases (plaintiff).

      Michael J. McClary, with whom, on the brief, was Hugh F. Keefe, for the appellee in the first case (defendant town of East Haven).

      Martin S. Echter, deputy corporation counsel, for the appellee in the second case (defendant city of New Haven).
   Hull, J.

This appeal involves two cases, Stop & Shop Cos. v. East Haven, Docket No. 13405, and Stop & Shop Cos. v. New Haven, Docket No. 13428, that arrived in this court by different routes, but which involve the same issue on appeal. The procedural and factual background of each case is as follows.

In Stop & Shop Cos. v. East Haven, 13 Conn. App. 393, 536 A.2d 991 (1988), the plaintiff owned real and personal property in the town of East Haven on October 1, 1985. On that date, East Haven assessed the plaintiff’s real property at the rate of 70 percent of its true and actual value as of October 1, 1981, the date of the town’s last decennial revaluation. The assessors, however, assessed the plaintiff’s personal property at 70 percent of its true and actual value as of October 1, 1985. Id., 394. The plaintiff appealed to the Superior Court from a decision of the board of tax review of the town of East Haven refusing to reduce the assessment of its personal property on the list of October 1,1985. In its memorandum of decision dated July 18,1986, the trial court, Hon. Harold M. Mulvey, J., state trial referee, dismissed the appeal. The plaintiff appealed from that dismissal to the Appellate Court, claiming that the trial court erred in holding that the defendant properly assessed the plaintiffs personal property pursuant to General Statutes § 21-71 (b). The Appellate Court found no error. Id., 400. We granted the plaintiffs petition for certification to appeal from the Appellate Court, limited to the following issue: “Does General Statutes § 12-71 (b) permit a town to assess personal property on the basis of annual valuation when real property is assessed on the basis of a decennial revaluation?”

The second case, Stop & Shop Cos. v. New Haven, concerns the plaintiffs personal property assessment on the grand list of October 1,1986. The assessors valued real estate in New Haven at 70 percent of its fair market value as of October 1,1978, the last decennial revaluation in New Haven. Personal property in New Haven was assessed at 70 percent of its fair market value as of October 1,1986. The plaintiff, on appeal to the Superior Court from its personal property assessment, refined somewhat the claims it had made in the earlier East Haven case. It contended that the personal property assessment of October 1, 1986, should be reduced to the same percentage of its then actual valuation as existed with respect to the listing of real estate for the same year. In the Superior Court, the plaintiff raised for the first time a claim concerning the average ratio of assessed value on real estate in New Haven. It asserted that personal property was bearing a disproportionately higher tax burden on the list of October 1,1986, because of the assessor’s failure to comply with General Statutes §§ 12-62a (b) and 12-71 (b), in that the assessment of personal property was a higher percentage of its then actual valuation than existed with respect to real estate for the same year. On December 3, 1987, the trial court, Hon. Harold M. Mulvey, J., state trial referee, filed a memorandum of decision identical to that filed in the East Haven case, and dismissed the plaintiff’s appeal. In its decision, the trial court did not consider or rule upon the plaintiff’s claim of disproportionate tax burden. Thereafter, the plaintiff appealed the dismissal to the Appellate Court, and the case was then transferred to this court after certification was granted in the East Haven case. The issue framed by the plaintiff on appeal to the Appellate Court raises the same issue as that certified in the East Haven case. For simplicity of procedure, therefore, we will consider the previously noted certified question to be the issue in both cases.

General Statutes § 12-62, titled “Periodic revaluation of real estate,” provides: “(a) Commencing October 1, 1978, the assessors of all towns . . . shall, no later than ten years following the last preceding revaluation of all real property and every ten years after each such revaluation, view all of the real estate of their respective municipalities, and shall revalue the same for assessment . . . . ” The parties agree that if real estate was properly assessed on the first grand list following a revaluation, then variation in the effect of market conditions on different parcels need not be reflected in subsequent assessments between revaluations. See 84 Century Limited Partnership v. Board of Tax Review, 207 Conn. 250, 256, 541 A.2d 478 (1988); Ralston Purina Co. v. Board of Tax Review, 203 Conn. 425, 437-38, 525 A.2d 91 (1987); Uniroyal, Inc. v. Board of Tax Review, 182 Conn. 619, 629, 438 A.2d 782 (1981). General Statutes § 12-62a (b) provides that “[e]ach . . . municipality shall, no later than the close of its next revaluation required under the provisions of section 12-62, assess all property for purposes of the local property tax at a uniform rate of seventy per cent of present true and actual value, as determined under section 12-63.” General Statutes § 12-63 provides that the present true and actual value of property shall be deemed by all assessors and boards of tax review to be the fair market value thereof. General Statutes § 12-64 (a) provides that taxable real estate “except as otherwise provided by law, shall be liable to taxation at a uniform percentage of its present true and actual valuation. . . .” Finally, General Statutes § 32-71 (b), on which the plaintiff principally relies, provides that “[all personal property liable to taxation] shall be valued at the same percentage of its then actual valuation as the assessors have determined with respect to the listing of real estate for the same year . . . . ” In contrast to real property, personal property is assessed annually. General Statutes § 12-40.

The plaintiff stresses that it does not attack the manner in which the assessors in East Haven and New Haven assessed real estate in the pertinent years. In its brief it quotes with approval the statement in Stop & Shop Cos. v. East Haven, supra, 394, that “[t]he plaintiff does not contest the legitimacy of the decennial revaluation of real property authorized by General Statutes § 12-62, nor the method by which real property is valued. General Statutes § 12-64.”

Instead, “|t]he plaintiff contends that the language of General Statutes § 12-71 (b) and its legislative history require that towns value real and personal property on the same date so that the two are taxed at the same effective rate, not merely at the same percentage of their assessed value.” Id., 394-95. To put it another way, the plaintiff claims that the statute requires the assessment of real and personal property at the same ratio of true value. In support of its position, the plaintiff relies on our oft-cited statement that, in construing a statute, courts may consider its plain language, its legislative history, its purpose and the circumstances surrounding its enactment. Peck v. Jacquemin, 196 Conn. 53, 64, 491 A.2d 1043 (1985); Dukes v. Durante, 192 Conn. 207, 214-15, 471 A.2d 1368 (1984).

The plaintiffs claim is not plainly supported by the language of § 12-71 (b), which states that personal property “shall be valued at its same percentage of its then actual valuation as the assessors have determined with respect to the listing of real estate for the same year . . . . ” Clearly, the tax assessors did apply the same nominal percentage rate to the “actual valuation” of the plaintiffs personal property as they applied to real estate. The plaintiffs claim, however, is that this nominal equivalency masks an underlying disparity arising out of differences in the time of “actual valuation.” In order to determine whether the statute is latently ambiguous in this manner, and should be construed as the plaintiff contends, we must turn to the pertinent legislative history and our clear-cut decisions concerning decennial revaluations.

The plaintiffs argument concerning legislative history relies primarily on No. 673 of the 1957 Public Acts, now codified in § 12-71, which became effective on June 21,1957, approximately one month after our decision in E. Ingraham Co. v. Bristol, 144 Conn. 374, 132 A.2d 563 (1957). In that case, the plaintiff, a manufacturing concern, owned real estate and personalty in Bristol. The assessors, on the October 1, 1954 grand list, listed the plaintiffs real estate at 50 percent, and its personalty at 90 percent, of the actual values previously determined for those categories of the plaintiffs property. Id., 376. The plaintiff appealed to the board of tax review for a reduction in the assessment of its personalty, but the appeal was dismissed. On the plaintiffs subsequent statutory appeal to the Court of Common Pleas, four questions were reserved to this court for advice. We construed these questions as presenting “the single issue whether or not the assessors can, by using a higher percentage of the actual value of personalty than they do of real estate in making assessments, impose upon the plaintiff the obligation of paying a greater proportionate amount of taxes than those assessed, let us say, for only real estate.” Id., 376-77. We concluded that while the assessing of property at a fraction of its actual value had been tolerated for so long a time that “it has acquired the respectability of assumed legality,” such a practice was clearly improper. Id., 377. The pertinent statutes gave assessors “no warrant to utilize as a tax base any value other than the actual value of the property.” Id., 378. We found the fractional valuation used by the Bristol assessors in listing the plaintiffs real estate at 50 percent of its actual value and its personalty at 90 percent of that value, to be illegal. Id., 380. We concluded, however, that we could not, without violating the applicable statutes, order a reduction of the assessment of the plaintiff’s personalty, because such an adjustment would result in this court’s fixing a value below that prescribed by the statutes. Id., 382-83.

The plaintiff’s claim that the legislative history of No. 673 of the 1957 Public Acts supports its position begs the question. That history does not concern in any way the issue in this case as to the same effective tax rate for real estate and personalty. It merely concerns uniformity of fractional valuations for real estate and personalty. Such uniformity is not questioned in this case since all parties agree that the assessors in each case applied the statutorily mandated factor of 70 percent to the valuations on which they relied.

The main thrust of the plaintiff’s argument is that upon a proper showing on the date of assessment of its personalty; of an average ratio of assessed fair market value of real estate to its assessed value which ratio is lower than 70 percent, the plaintiff is entitled to have its personalty assessed at such lower ratio. With due regard for the plaintiff’s status as an operator of supermarkets, we note that it is mixing apples and oranges in its attempt to establish a linkage between the sales assessment ratio of realty and that of personalty. For, no matter how stylishly the package may be wrapped, this argument is clearly no more than another way to produce a reading of § 12-71 (b) that, when properly read in the light of our case law, flies in the face of the statutory language.

Contrary to the plaintiffs argument, its proffered construction of § 12-71 (b) is not supported by Kays, Inc. v. Board of Tax Review, 170 Conn. 477, 365 A.2d 1207 (1976). In that case, the plaintiff sought a reduction in the assessment of its real property on the ground that it was disproportionately high because the majority of assessments, which were based upon 60 percent of 1969 values, were substantially less than 60 percent of present value, while its property was assessed at 60 percent of present value. We stated that relief would have been available “[i]f the plaintiff had produced evidence that ‘an average, as distinguished from a uniform,’ ratio of the assessed value of properties to their present market values fell below 60 percent, and ‘if that evidence was credited by the trial court and found by it to be adequate to prove a fair approximation of the average ratio or percent of the fair value actually obtaining in the taxing district, an individual assessment could properly be reduced to the percentage computed from that ratio.’ ” Id., 481, quoting Lerner Shops of Connecticut, Inc. v. Waterbury, 151 Conn. 79, 88, 193 A.2d 472 (1963). We found no error in the trial court’s conclusion that the evidence presented was insufficient to establish an average ratio. Kays, Inc. v. Board of Tax Review, supra, 482.

Our holding in Kays, Inc., was subsequently clarified in another case discussing the limitations on the use of the average ratio technique in challenging tax assessments. In Uniroyal, Inc. v. Board of Tax Review, supra, we pointed out that “[i]n Connecticut, the procedure for taxation of real property is set forth in General Statutes § 12-64, which provides that all non-exempt real estate ‘shall be liable to taxation at a uniform percentage of its present, true and actual valuation to be determined by the assessors . . . . ’ The three steps necessary to carry out the mandate of § 12-64 are: ‘(a) The fair value of property as of the assessment date must be determined, (b) A percent, not exceeding 100 percent, of the fair value, must be determined by the assessing authority for uniform application to all property within the town, (c) The assessment value, i.e., the value for the purpose of taxation, for any given piece of property in the town, must be ascertained by applying the determined uniform percent to its fair value as of the assessment date.’ ” Id., 623, quoting Lemer Shops of Connecticut, Inc. v. Waterbury, supra, 85. We concluded that “[t]he decisions of this court indicate that use of the average ratio approach is not a supplement to fair valuation as mandated by the statute; it is appropriate only as an evidentiary tool useful in establishing that the statutory requirements have not been followed and as a remedy for such failure.” Uniroyal, Inc. v. Board of Tax Review, supra, 626. We further stated that “[i]n Connecticut, the remedy for variations in the effect of market conditions on different parcels is set forth in General Statutes § 12-62. The remedy of revaluation was established by the legislature and it was the judgment of the legislature that the remedy need only be available once each decade. See Bassett v. Rose, [141 Conn. 129, 135, 104 A.2d 212 (1954)]. By way of contrast, § 12-64 ‘is concerned with the manner of taxation, not the frequency of valuation, and it does not purport to require assessors to be updated on their valuations at all times. . . . [A]s a practical matter, assessors cannot be expected to revalue every year, even though changes which affect property values may occur within a given year.’ Kays, Inc. v. Board of Tax Review, supra, 480.

“Because the remedy for changing market values is set forth in General Statutes § 12-62, we conclude that use of the average ratio approach is not applicable to discrepancies in valuation which arise during the ten-year period between valuations. See Burritt Mutual Savings Bank v. New Britain, 146 Conn. 669, 678-79, 154 A.2d 608 (1959).” Uniroyal, Inc. v. Board of Tax Review, supra, 629-30.

In each of the cases before us, the plaintiff specifically did not challenge the last decennial revaluation of its real estate. Thus, even if the plaintiff had sought to challenge its present real estate valuation, this approach would be denied to it by our ruling in Uniroyal, Inc., cited above. Despite being blocked at the front door, the plaintiff attempts to use a side door by challenging the valuation of personalty on the basis of the average ratio technique concerning real estate valuation. The plaintiff, however, offers no authority for this attempted hybrid use of the average ratio technique. It did not claim disproportionality of its personalty compared to other owners of personal property. This claim is without merit.

Concerning the core issue in these cases, we cannot improve upon either the language or reasoning of the Appellate Court in Stop & Shop Cos. v. East Haven, supra, 399: “There is nothing in either the language of General Statutes § 12-71 (b) or its legislative history which calls into question the practice of revaluing real property every ten years but valuing personal property annually. This conclusion is consistent with the legislature’s decision to give tax assessors the authority to increase or decrease the ‘valuation of property’ which appears on the town’s annual grand lists. [See] General Statutes § 12-55.” The Appellate Court concluded: “[T]his language provides for a permissive valuation of property in the years between the decennial revaluations, without requiring it. . . . There is nothing in this language which requires that the assessors carry out interim revaluation of all classes of property if they revalue one class of property.

“Rather, § 12-55 allows towns to engage in voluntary tax relief when property has decreased in value. ... If we were to conclude, as the plaintiff argues, that real property and personal property must be valued on the same date, we would vitiate the express language of § 12-55 because we would then be requiring that assessors treat real property and personal property in an identical fashion during the years between the decennial revaluation. We note that the nature of personal property lends itself to an annual valuation, often completely losing its useful value in a ten year period. Real property, by contrast, is durable and nearly always appreciates in value. . . . Furthermore, personalty is generally assessed annually at a lower value than each preceding year because it depreciates. . . . Thus, owners of personalty receive the benefit of a declining value each year for the purposes of taxation.” (Citations omitted.) Id., 399-400. We agree.

In Stop & Shop Cos. v. East Haven, Docket No. 13405, the judgment of the Appellate Court is affirmed; in Stop & Shop Cos. v. New Haven, Docket No. 13428, there is no error.

In this opinion the other justices concurred.

       There is no significance to the fact that the court in Stop & Shop Cos. v. New Haven referred to “fair market value” of personal property, while in Stop & Shop Cos. v. East Haven the court referred to its ‘ ‘true and actual valuation.” These terms are interchangeable. “The terms actual valuation, market value, actual value, fair market value, market price and fair value are synonymous in the valuation of property for assessment purposes.” Uniroyal, Inc. v. Board of Tax Review, 182 Conn. 619, 623 n.3, 438 A.2d 782 (1981).

       In its appeal to the Appellate Court, the plaintiff presented the following issue in its preliminary statement of issues: “Whether the trial court erred in dismissing the instant appeal, and in so doing, holding that the City of New Haven properly assessed the appellant’s property pursuant to Connecticut General Statutes § 12-71 (b).”