author: Glass, J.

text:
    John T. Messina, Sr. v. Ralph P. Calandro
    (13859)
    Shea, Callahan, Glass, Covello and Hull, Js.

      Argued January 31
    decision released April 17, 1990

      Alexandra Davis, with whom was Wesley W. Horton, for the appellant (defendant).

      Prescott W. May, for the appellee (plaintiff).
   Glass, J.

The plaintiff, John T. Messina, Sr., a partner in an oral partnership agreement with the defendant, Ralph P. Calandro, brought this action seeking an accounting after the termination of their partnership. The trial court rendered judgment for the plaintiff, ordering an accounting. We find no error.

The trial court’s memorandum of decision, supplemented by evidence in the record, reveals the following facts. In the spring of 1984, the plaintiff and the defendant orally formed a partnership to acquire a certain parcel of land in Derby, and to seek zoning approval to build condominiums on the land. The trial court found that the parties had never executed a written agreement, as they had been close friends for twenty years and had a relationship of trust between them. The trial court found, however, that the parties agreed that if zoning approval were granted, and the land was sold as approved, the plaintiff would receive 60 percent of the profits and the defendant would receive 40 percent of the profits. If, however, the parties decided to build and sell the condominiums, the defendant would receive 60 percent of the profits and the plaintiff would receive 40 percent of the profits. The trial court found further that ultimately the zoning approval was granted. In the fall of 1985, however, the plaintiff inquired of the defendant about his share of the profits from the partnership. According to the testimony of the plaintiff, the defendant responded: “I’m tired of your inquirings and your interferences, as far as I’m concerned you are out, you are out of this project, we have no papers.” The trial court found that, at the time the defendant made this statement, he had already begun site preparation for the condominium development, and that the defendant thereafter proceeded to build condominiums on the land and sell them all at a price higher than had been anticipated.

On November 20,1987, the plaintiff commenced this action for an accounting, and, in the first three paragraphs of his complaint, he alleged the following: “1. On or before January, 1984, the plaintiff and the defendant, under an oral agreement, formed a partnership known as R & J Associates. 2. Under said agreement the partnership was to acquire certain real estate located on Route 34 in Derby, Connecticut, for purposes of building and selling residential condomimiums on said property. 3. In furtherance of said agreement, the partnership applied for a special exception with the zoning commission of the City of Derby and received permission to construct forty-four (44) two (2) bedroom units.” The defendant admitted these first three paragraphs of the complaint in his answer.

The trial court concluded that a partnership existed and rendered judgment for the plaintiff, ordering an accounting pursuant to General Statutes § 34-60. The defendant then appealed to the Appellate Court, and pursuant to Practice Book § 4023, this court transferred the case to itself. While this appeal was pending, however, the defendant filed a motion for articulation with the trial court. Specifically, the defendant asked the trial court: “1. Upon which of the criteria provided in § 34-60 is the order for accounting based? 2. During what specific period of time does the trial court find a partnership existed between the parties? 3. For what period of time is the order of accounting applicable?”

The trial court responded, in part, to the first question by stating: “The main criterion upon which the order for accounting was based was pursuant to General Statutes § 34-60 (b) insofar as the defendant admitted the existence of a partnership agreement in paragraphs one, two and three of his answer.” In response to the second question, the trial court stated: “By [the] defendant’s admissions in paragraphs one, two and three, the partnership was for the period of time it would take to secure zoning and [build] the condominiums. The evidence supports [the] plaintiffs claim that the parties had agreed [the] plaintiff would be entitled to 40% of the profits and [the] defendant would receive 60%.” Finally, in response to the third question, the trial court stated: “The order for accounting covers a period to the time when all the units were sold and all profits and losses tabulated.”

On appeal, the defendant claims that the trial court: (1) erred in finding that the order of accounting covers the period when all units were sold and all profits and losses tabulated; and (2) misapplied the law in basing its order on § 34-60 (b).

The defendant does not argue that a partnership did not exist. Nor does he argue that the plaintiff had no right to an accounting. Rather, the defendant’s principal claim is that the trial court erroneously ordered an accounting beyond the fall of 1985, the time at which the defendant contends that the partnership terminated. According to the defendant’s argument, the partnership and accounting periods in this case are coterminous. Thus, the defendant asserts that, since the partnership terminated in the fall of 1985, it was erroneous for the trial court to order an accounting beyond that time.

The defendant’s argument, however, ignores the fact that the trial court found that the defendant admitted the allegations in the complaint stating that, under the partnership agreement, the partnership was to acquire certain real estate located in Derby for the purpose of building and selling residential condominiums on the property. The defendant also admitted that, in furtherance of the partnership agreement, the partnership applied for and received a special exception from the zoning commission of Derby granting the partnership permission to construct forty-four two bedroom units. Under these circumstances, we are not persuaded that the fact that one partner unilaterally , terminates the partnership, and elects to proceed alone to build and sell the condominiums as the partners had agreed, extinguishes the other partner’s interest in the forty-four units as the partnership agreement contemplated.

In sum, we discern a distinct parallel between the present case and the dissolution of a law partnership. “[A)fter dissolution of a law partnership, income received by the former partners from cases unfinished at the time of dissolution is to be allocated on the basis of the partners’ respective interests in the dissolved partnership . . . .” Jewel v. Boxer, 156 Cal. App. 3d 171, 177, 203 Cal. Rptr. 13 (1984). “Upon dissolution, a withdrawing partner is entitled to a pro rata share of fees received after dissolution for work done before dissolution.” In re Iota Industries, Inc., 42 Bankr. 285, 288 (S.D.N.Y. 1984). Thus, just as an attorney, after the dissolution of a law partnership, has the right to his pro rata share of fees received from a case that was brought into the partnership prior to its dissolution, the plaintiff, in this case, has the right to his share of the profits from the sale of the condominiums as contemplated by the partnership agreement.

Consequently, the trial court’s ordering of an accounting, for the period of time up to when “all the units were sold and all profits and losses tabulated,” was not clearly erroneous.

There is no error.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 34-60. right of partner to accounting. Any partner shall have the right to a formal account as to partnership affairs: (a) If he is wrongfully excluded from the partnership business or possession of its property by his copartners, (b) if the right exists under the terms of any agreement, (c) as provided by section 34-59, (d) whenever other circumstances render it just and reasonable.”

       The defendant argues that the trial court erred in relying on General Statutes § 34-60 (b) in basing its order for an accounting, because the right to an accounting did not exist “under the terms of [the] agreement.” General Statutes § 34-60 (b). At oral argument, however, the defendant conceded that the plaintiff was indeed entitled to an accounting, and thus he abandoned this argument.


source: Caselaw Access Project

author: Covello, J.

license: Public Domain

text:
    Louise Richard v. Commissioner of Income Maintenance
    (13742)
    Shea, Glass, Covello, Hull and Santaniello, Js.

      Argued January 30
    decision released April 24, 1990

      Judith I. Solomon, for the appellant (plaintiff).

      Martin Rosenfeld, assistant attorney general, with whom, on the brief, was Clarine Nardi Riddle, attorney general, for the appellee (defendant).
   Covello, J.

This is an administrative appeal from a decision of the commissioner of the department of income maintenance (DIM). The sole issue is whether the commissioner gave adequate public notice of his intention to adopt new Medicaid regulations. We agree with the trial court that the notice was adequate and therefore find no error.

The plaintiffs husband receives Title XIX (Medicaid) assistance. On June 27, 1988, DIM notified the plaintiff of a reduction in her husband’s benefits. This in turn resulted in a reduction in the amount of her husband’s income that was diverted to her.

On July 6, 1988, pursuant to General Statutes § 17-2a, the plaintiff requested a fair hearing to contest DIM’s action. On August 1,1988, a hearing was held at the plaintiffs home. On September 8,1988, pursuant to General Statutes § 17-2b, the fair hearing officer issued a decision that concluded, inter alia, that as of October 1, 1988, the plaintiffs benefits would be reduced. On September 30,1988, pursuant to General Statutes §§ 17-2b and 4-183, the plaintiff appealed to the Superior Court claiming, inter alia, that the defendant’s action “was made upon unlawful procedure, and is clearly erroneous.” Specifically, the plaintiff claimed that public notice of the commissioner’s intention to adopt a new public assistance policy manual was inadequate and not in compliance with the applicable provision of the Uniform Administrative Procedure Act, General Statutes § 4-168 (a).

On June 8, 1989, the trial court concluded that the commissioner’s notice to the public complied with § 4-168 (a), that the new public assistance policy manual that reduced the plaintiff’s benefits was therefore validly promulgated, and rendered judgment dismissing the appeal. On July 2,1989, the plaintiff appealed to the Appellate Court. We thereafter transferred the matter to ourselves in accordance with Practice Book § 4028.

On appeal, the plaintiff asks us to focus solely on her claim that the notice furnished by the commissioner did not comply with § 4-168 (a) and, therefore, that DIM’s new public assistance policy manual was not promulgated in accordance with the legislature’s mandate; General Statutes § 17-3f (c); and that the new manual be adopted in accordance with the Uniform Administrative Procedure Act. Examination of the record discloses that on January 6,1987, DIM published a notice of intent to adopt regulations in the Connecticut Law Journal. The notice stated, inter alia: “These new regulations are designed to set forth in clear and concise language the policies and procedures used by the department in implementing and enforcing federal and state law. In particular, the regulations (Manual) restate and/or revise the policies and procedures of the Department as they relate to the eligibility requirements for such programs as Aid to Families with Dependent Children, Medicaid, State Supplement, and Food Stamps and Refugee Assistance. The new manual contains all department policy regulations and substantive procedure which affect the rights or procedures available to the public pertaining to program eligibility. . . . Copies of the full text of the new manual are available at no cost upon request from the Policy Unit, Department of Income Maintenance, Hartford, Connecticut 06106. ...”

Section 4-168 (a) sets forth the required content of a notice of intent to adopt regulations. On January 6, 1987, the date the notice was published in the Connecticut Law Journal, subsection (a) (1) (A) specified in part: “The notice shall include (A) either a statement of the terms or of the substance of the proposed regulation or a description sufficiently detailed so as to apprise persons likely to be affected of the issues and subjects involved in the proposed regulation, (B) a statement of the purposes for which the regulation is proposed, (C) a reference to the statutory authority for the proposed regulation and (D) the time when, the place where and the manner in which interested persons may present their views thereon.”

The plaintiff first argues that the notice did not comply with subsection (a) (1) (A) in that it was not sufficiently specific so as fairly to advise those affected of the terms and substance of the proposed manual and the issues and subjects involved. We do not agree.

Subsection (a) (1) (A) requires either “a statement of the terms” or “of the substance” or a “description sufficiently detailed” all to the end that “persons likely to be affected” are apprised “of the issues and subjects involved . . . .” In this connection, the notice first states that the commissioner “proposes to adopt regulations replacing its State Social Services Policy Manual with a new manual.” It specifically recites that the Manual “restate[s] and/or revise[s] the policies and procedures of [DIM] as they relate to the eligibility requirements for such programs as Aid to Families with Dependent Children, Medicaid, State Supplement, and Food Stamps and Refugee Assistance.” (Emphasis added.)

“Substance” defines the essential nature, essence or quality of a document or thing. Webster, Third New International Dictionary. Even the most casual reader of this notice has to be aware that: (1) the Social Services Policy Manual is being replaced; (2) policies and procedures concerning eligibility requirements are being restated or revised; and (3) the programs implicated include Medicaid. We conclude that this constitutes the fair “statement of the . . . substance” of the proposed revisions that § 4-168 (a) (1) (A) requires.

The DIM notice went on to list specifically, in their entirety, the manual’s sixteen chapter or section headings. These included, inter alia, “Treatment of Income,” “Standards of Assistance,” and “Calculation of Benefits.” The reader is thus specially notified “of the issues and subjects involved in the proposed regulation,” again, exactly as § 4-168 (a) (1) (A) directs.

The plaintiff next argues that the DIM notice did not comply with § 4-168 (a) (1) (B) in that it contained an inadequate “statement of the purposes for which the regulation is proposed.” In this connection, the DIM notice stated: “Statement of purpose: To implement the provisions of Connecticut General Statutes § 17-3f, as amended by Public Acts No. 85-564 and [No.] 86-415, directing the Commissioner of the Department of Income Maintenance to develop a new eligibility policy manual in accordance with the provisions of Chapter 54, and authorizing the operation under said manual pending formal adoption.” Although this was a complete and accurate statement, the plaintiff argues that. there was no statement of the purpose of any of the rule changes embodied in the manual. This was not required. Section 17-3f (c) did not mandate the promulgation of a new regulation but rather directed DIM to replace its policy manual, which was to be “adopted in accordance with the provisions of chapter 54 [Uniform Administrative Procedure Act].” Thus, in articulating a “statement of the purposes” as required by § 4-168 (a) (1) (B), DIM was charged with describing the reasons for the adoption of the entire manual, not the reason for the adoption of each of its parts as the plaintiff claims. We conclude that the statement of purpose contained in the notice complied with the statute.

There is no error.

In this opinion the other justices concurred.

       General Statutes § 17-2a provides in part: “An aggrieved person authorized by law to request a fair hearing on a decision of the commissioner of income maintenance . . . may make application for such hearing . . . and shall state in such application in simple language the reasons why he claims to be aggrieved.”

       General Statutes § 17-2b provides in part: “(a) Not later than sixty days after such hearing . . . the commissioner or his designated hearing officer shall render a final decision ....
      “(b) The applicant ... if aggrieved, may appeal therefrom in accordance with section 4-183. . . .”
      When this appeal was commenced, General Statutes § 4-183 provided in part: “(a) A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision in a contested case is entitled to judicial review by way of appeal under this chapter
      “(b) Proceedings for such appeal shall be instituted by filing a petition in superior court . . . .”
      An amendment to this section became effective July 1, 1989.

       General Statutes § 4-168 (a) provides in part: “[A]n agency, prior to adopting a proposed regulation, shall: (1) Give . . . notice by publication in the Connecticut Law Journal of its intended action. The notice shall include (A) either a statement of the terms or of the substance of the proposed regulation or a description sufficiently detailed so as to apprise persons likely to be affected of the issues and subjects involved in the proposed regulation . . . .”
      Extensive revisions of the Uniform Administrative Procedure Act became effective on July 1,1989. While the language of § 4-168 (a) was slightly modified, there was no substantive change in its requirements. See Public Acts 1988, No. 88-317, effective July 1, 1989.

       In 1985 the General Assembly, in apparent response to our holdings in Persico v. Maher, 191 Conn. 384, 465 A.2d 308 (1983), and Walker v. Commissioner, 187 Conn. 458, 446 A.2d 822 (1982), enacted Public Acts 1985, No. 85-564, codified in part as General Statutes § 17-3f (c), directing DIM to replace its public assistance policy manual. Section 17-3f (c) provides: “By January 1,1987, the department of income maintenance shall replace its state public assistance policy manual with a new manual which is adopted in accordance with the provisions of chapter 54 [Uniform Administrative Procedure Act] and which sets forth in clear and concise language the policies and procedures to be used by the department in implementing and enforcing federal and state laws. The department may operate under a policy in the new recipient eligibility and benefit policy manual while it is in the process of adopting the manual in regulation form, provided the department shall print a notice of intent to adopt regulations relating to recipient eligibility and benefits in the Connecticut Law Journal within twenty days of issuing the policy.”

       The notice provided:
      “DEPARTMENT OF INCOME MAINTENANCE
      “Notice of Intent to Adopt Regulations
      “In accordance with the provisions of subsection (a) of Section 4-168 of the Connecticut General Statutes, notice is given that the Commissioner of Income Maintenance proposes to adopt regulations replacing its State Social Services Policy Manual with a new manual, as required by Connecticut General Statutes Section 17-3f, as amended by Public Acts 85-564 and 86-415. These new regulations are designed to set forth in clear and concise language the policies and procedures used by the department in implementing and enforcing federal and state law. In particular, the regulations (Manual) restate and/or revise the policies and procedures of the Department as they relate to the eligibility requirements for such programs as Aid to Families with Dependent Children, Medicaid, State Supplement, and Food Stamps and Refugee Assistance. The new manual contains all department policy regulations and substantive procedure which affect the rights or procedures available to the public pertaining to program eligibility.
      “All regulatory provisions contained in the present policy Manual will be repealed on the effective date of the new regulations (Manual). In addition, the following sections of the Regulations of Connecticut State Agencies will be repealed:
      “17-2-1 through 17-2-3; 17-2-4a; 17-2-5a; 17-2-6; 17-2-7a through 17-2-25; 17-2-26a; 17-2-26b; 17-2-28 through 17-2-65; 17-2-70 through 17-2-76; 17-2-84; 17-2-85; 17-2-104 through 17-2-113; 17-2-118; 17-2-131 through 17-2-139; 17-2-179 through 17-2-183; 17-2-187; 17-2-188; 17-2-205; 17-2a-l through 17-2a-2; 17-2b-l through 17-2b-3; 17-2e-l; 17-11-2; 17-12a-l; 17-12a-2; 17-12a-16; 17-82b-l through 17-82b-ll; 17-82q-l through 17-82q-16; 17-85-1 through 17-85-101; 17-86-1; 17-86a-l; 17-134d-l; 17-134d-3 through 17-134d-6; 17-134d-26; 17-134d-27; 17-134d-32.
      “The manual is divided into the following sections:
      Rights and Responsibilities 1000
      The Eligibility Process 1500
      Assistance Unit Composition 2000
      Categorical Eligibility Requirements 2500
      Treatment of Income 3000
      Treatment of Assets 3500
      Technical Eligibility Requirements 4000
      Procedural Eligibility Requirements 4500
      Standards of Assistance 5000
      Income Eligibility 5500
      Calculation of Benefits 6000
      Benefit Issuance 6500
      Benefit Error 7000
      Recovery 7500
      Special Programs 8000
      Special Benefits 9000
      “Pending the formal adoption of the new manual in regulation form the Department will operate under the new policies, as authorized pursuant to Public Act 86-415. This publication further notices the intent of the Department to operate under the new manual provisions, in accordance with the following implementation schedule:
      “Group I - Implementation Target - March 1987
      Assistance Unit Composition
      Rights and Responsibilities
      Special Benefits
      Special Programs
      Benefit Issuance
      Technical Eligibility Requirements
      “Group II - Implementation Target - June 1987
      Categorical Eligibility Requirements
      Treatment of Assets
      Procedural Eligibility Requirements
      Recovery
      The Eligibility Process
      “Group III - Implementation Target - September 1987
      Treatment of Income
      Income Eligibility
      Calculation of Benefits
      Standards of Assistance
      Benefit Error
      “Statement of purpose: To implement the provisions of Connecticut General Statutes § 17-3f, as amended by Public Acts No. 85-564 and 86-415, directing the Commissioner of the Department of Income Maintenance to develop a new eligibility policy manual in accordance with the provisions of Chapter 54, and authorizing the operation under said manual pending formal adoption.
      “Copies of the full text of the new manual are available at no cost upon request from the Policy Unit, Department of Income Maintenance, Hartford, Connecticut 06106.
      “Persons wishing to present their views regarding this regulation may do so at public hearings to be held from 9:00 a.m. to 3:00 p.m. on February 3, 4 and 5 in the Policy Conference Room at the Connecticut Department of Income Maintenance, 110 Bartholomew Avenue, Hartford, Connecticut 06106. In addition, within thirty (30) days of the publication of this notice written comments regarding this regulation may be submitted to the Commissioner of Income Maintenance, 110 Bartholomew Avenue, Hartford, Connecticut 06106, Attention: John Ford, Director of Program Policy.
      “When submitting comments, please refer to regulation number 87-3/NRB.”

       See footnote 3, supra.

       See footnote 3, supra.


author: Peters, C. J.

text:
    Eastern Connecticut Cable Television, Inc. v. Department of Public Utility Control et al.
    (13854)
    Peters, C. J., Shea, Callahan, Glass and Covello, Js.

      Argued February 28
    decision released April 24, 1990

      Robert P. Knickerbocker, Jr., with whom, on the brief, was Barry G. Russell, for the appellant (plaintiff).

      Tatiana D. Sypko, assistant attorney general, with whom were Robert S. Golden, Jr., assistant attorney general, and, on the brief, Clarine Nardi Riddle, attorney general, for the appellee (named defendant).

      Valerie J. Bryan, for the appellee (defendant office of consumer counsel).

      Richard K. Greenberg, assistant attorney general, and Clarine Nardi Riddle, attorney general, filed a brief for the commissioner of revenue services as amicus curiae.
   Peters, C. J.

In order to finance the expenses of the department of public utility control and the office of consumer counsel, General Statutes § 16-49 (b) authorizes an assessment of cable television companies based on their taxable gross revenues. The plaintiff, Eastern Connecticut Cable Television, Inc., initiated administrative proceedings objecting to the manner in which the named defendant calculated the gross revenues on which its assessments were based. The defendant issued a decision refusing to rule on the merits of the plaintiffs objection. The plaintiffs subsequent administrative appeal to the trial court was dismissed on the ground that the defendant’s decision was not a final judgment. The plaintiff appealed to the Appellate Court and we transferred the appeal here pursuant to Practice Book § 4023. We find error.

The following facts underlie the defendant’s administrative ruling. The plaintiff, as a community antenna television company within the meaning of General Statutes § 16-1 (14), is subject to assessments pursuant to § 16-49 (b). In calculating the gross revenues that are the basis for the plaintiff’s assessments, the defendant has included the revenues generated by a separate corporation, Home Theater, T.V., Inc. (Home Theater), as well as those generated by the plaintiff itself. The plaintiff provides basic cable services for its customers, while Home Theater leases cable channels from the plaintiff in order to provide premium services for cable viewers. Like the defendant, the department of revenue services has calculated the plaintiff’s gross revenues by treating the plaintiff and Home Theater as a single entity. The plaintiff filed a tax appeal challenging the department of revenue services’ assessment, and subsequently initiated the present administrative proceeding for review of the propriety of the assessments imposed by the defendant pursuant to § 16-49 (b).

In its challenge to the assessments under § 16-49 (b), the plaintiff claimed that inclusion of the gross revenues of Home Theater made its assessments excessive, erroneous and unlawful. It asked the defendant to find that Home Theater is an independent entity, separate and distinct from the plaintiff, and that it is not a “public service company” under § 16-1 (4). The plaintiff further requested the defendant, as the agency responsible for the administration of § 16-49 (b), to rule that the plaintiff’s relationship with Home Theater did not warrant assessing these two corporations as a single entity, despite the fact that the relationship was also an issue in the as yet unresolved tax appeal. At no time was Home Theater notified of, represented in, or made a party to, these proceedings. Subsequent to the hearing concerning the validity of the plaintiff’s assessment, in accordance with a stipulation to which it had agreed at the hearing, the plaintiff paid the contested charges in full, under protest.

In its decision, the defendant declined to rule on the merits of the plaintiffs claims. First, the defendant declared that it would not rule “at this time” on the proper definition of “gross revenues” because the department of revenue services “is the primary agency responsible for the assessment and collection of the tax on the gross revenues of a CATV system . . . [and] has not yet issued a ruling on the tax appeal filed by [the plaintiff].” Second, the defendant held that Home Theater was a necessary party in whose absence the defendant was “incapable of addressing the rulings sought [by the plaintiff.” The defendant’denominated these conclusions as its “decision” in Docket No. 87-09-21 and terminated the proceedings without retaining jurisdiction or ordering any form of remand.

The plaintiff filed a timely administrative appeal from this decision. It maintained that it was entitled to a ruling on the merits from the defendant and that Home Theater was not a necessary party to such a ruling. The trial court, however, dismissed the appeal for lack of subject matter jurisdiction after concluding that the decision rendered by the defendant was not a final decision. The plaintiff has appealed the dismissal of its administrative appeal.

The question of whether an administrative decision is a final judgment has never been an easy one to resolve. Most of our cases have arisen in the context of administrative rulings that, while resolving some issues, have left other matters as yet undetermined. In these cases, the dispositive question is whether the interlocutory order “so concludes the rights of the parties that further proceedings cannot affect them.” State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983); Schieffelin & Co. v. Department of Liquor Control, 202 Conn. 405, 409-10, 521 A.2d 566 (1987). Sometimes the administrative agency has itself retained jurisdiction pending the outcome of a remand; Szudora v. Fairfield, 214 Conn. 552, 555, 573 A.2d 1 (1990); Matey v. Estate of Dember, 210 Conn. 626, 629-30, 556 A.2d 599 (1989); Connecticut Bank & Trust Co. v. Commission on Human Rights & Opportunities, 202 Conn. 150, 156-57, 520 A.2d 186 (1987); while at other times the trial court has issued an interlocutory ruling remanding the case for further administrative action. Schieffelin & Co. v. Department of Liquor Control, supra, 410; Burdick v. United States Finishing Co., 128 Conn. 284, 288-89, 22 A.2d 629 (1941). These cases stand for the proposition that there is no final judgment if the administrative record is incomplete because a remand requires further evidentiary determinations that are not merely ministerial. See C. Tait, Connecticut Appellate Practice and Procedure (1989) § 2.23 (a), pp. 89-92.

This case is different because the defendant has reached an administrative decision, without retaining jurisdiction for further administrative proceedings, that puts the plaintiff “out of court” without any substantive disposition of any aspect of the merits of its challenge to the § 16-49 (b) assessments. Although the plaintiff presumably may reinitiate an administrative proceeding at some time in the future when its disagreement with the department of revenue services is resolved, it may continue to be confronted with the defendant’s conclusion that Home Theater is a necessary party. Moreover, the plaintiff is presently at risk of paying overassessments; at oral argument, the defendant did not Contest the plaintiff’s assertion that any future return of overpayments would not allow recoupment of interest for the interim.

These legal and economic factors demonstrate that the plaintiff is aggrieved because it faces the risk of irreparable harm from the indefinite deferral of its administrative grievance. Cf. Abney v. United States, 431 U.S. 651, 658-59, 97 S. Ct. 2034, 52 L. Ed. 2d 651 (1977); Zoning Board of Appeals v. Freedom of Information Commission, 198 Conn. 498, 501, 503 A.2d 1161 (1986). In form and in reality, the defendant’s decision falls within the alternate branch of State v. Curcio, supra, 31, which permits the immediate appeal of an interlocutory ruling “where the order or action terminates a separate and distinct proceeding . . . . ” See, e.g., Wardell v. Kittingly, 96 Conn. 718, 722, 115 A. 539 (1921) (denial of mandamus is a final judgment). As we held in New Haven v. New Haven Police Union Local 530, 210 Conn. 597, 606, 557 A.2d 506 (1989), “[s]o long as the agency intends to render a final decision and the person taking the appeal is aggrieved by the decision rendered, the fact that other related issues are reserved for later adjudication does not necessarily detract from its finality.” We conclude, therefore, that the defendant’s decision not to afford the plaintiff any administrative relief at this time is a final judgment. See Port of Boston Marine Terminal Assn. v. Rederiaktiebolaget Transatlantic, 400 U.S. 62, 71, 91 S. Ct. 203, 27 L. Ed. 2d 203 (1970); Sierra Club v. Thomas, 828 F.2d 783, 793 (D.C. Cir. 1987); Laborer’s International Union of North America, Local 1280 v. State Labor Relations Board, 154 Ill. App. 3d 1045, 1053-54, 507 N.E.2d 1200 (1987); Human Rights Party v. Michigan Corrections Commission, 76 Mich. App. 204, 209-10, 256 N.W.2d 439 (1977); State Board of Medical Examiners v. Weiner, 67 N.J. Super. 199, 204-205, 170 A.2d 467 (1961); Bock v. State Board of Pilotage Commissioners, 91 Wash. 2d 94, 97-99, 586 P.2d 1173 (1978).

Our conclusion that the trial court had subject matter jurisdiction to hear the plaintiff’s appeal requires a remand for a judicial inquiry into the merits of the appeal. The plaintiff is entitled to a plenary administrative review, at the trial level, of the various grounds upon which the defendant refused its request for recalculation of its § 16-49 (b) assessment.

There is error, the judgment is set aside and the case is remanded for farther proceedings in accordance with this opinion.

In this opinion the other justices concurred.

       General Statutes § 16-49 (b) currently provides in relevant part: “For each fiscal year, each public service company . . . shall pay the department of public utility control its share of all expenses of the department and the office of consumer counsel for the same fiscal year. On or before September first of each fiscal year the department shall give to each public service company ... a statement which shall include: (1) [the amount of the estimated expenses of the department and the office of consumer counsel]; (2) the total gross revenues of all public service companies . . . for the preceding calendar year which are taxable under chapters 216a, 211 or 212 and 212a; and (3) the proposed assessment against the company for the fiscal year beginning July first of the same year. Such assessment shall be calculated by multiplying the company’s . . . percentage share of the total gross revenues specified in subdivision (2) of this subsection by the total amount compiled under subdivision (1) of this subsection. . . .”
      The statute was amended several times during the years for which the plaintiff challenges its assessments, but none of the amendments is relevant to the issue in this appeal.

       The office of consumer counsel was permitted to intervene as a party defendant at the administrative level and was a codefendant at trial as well as at this appeal. For the sake of convenience we will nonetheless refer to the department of public utility control as the defendant, since it rendered the decision that is at issue in this case.

       General Statutes § 16-1 (4) defines a “public service company” as including “community antenna television companies.” General Statutes § 16-1 (14) defines “community antenna television companies]” as including “every corporation, company, association, joint stock association, partnership or person, or lessee thereof, owning, leasing, maintaining, operating, managing or controlling a community antenna television system, in, under or over any public street or highway, for the purpose of providing community antenna television service for hire.”

       A dismissal for failure to join a necessary party is an appealable final judgment. Biro v. Hill, 214 Conn. 1, 2, 570 A.2d 182 (1990).


text:
    State of Connecticut v. Ronald C. Moody
    (13726)
    Peters, C. J., Shea, Glass, Covello and Hull, Js. ■
    Argued March 7
    decision released April 24, 1990

      David E. O’Connor, special public defender, for the appellant (defendant).

      James A. Killen, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and David Gold, assistant state’s attorney, for the appellee (state).
   Glass, J.

The defendant in this case, Ronald C. Moody, was arrested on March 13,1987, and charged with the murder of Andrew Long, in violation of General Statutes § 53a-54a. Pursuant to General Statutes § 54-46a, a probable cause hearing was held before Judge William L. Hadden on May 5, 6 and 7,1987. At the conclusion of this hearing, Judge Hadden ruled that the state had not established probable cause for the murder charge. The state then requested that another probable cause hearing be scheduled so that it could present further evidence to support the murder charge.

On May 14, 1987, a second probable cause hearing commenced before Judge Barry R. Schaller, during which the state again sought to present evidence establishing probable cause for the murder charge. Judge Schaller, however, ruled that the state, once again, had failed to establish probable cause for the murder charge. The state then requested that the murder charge be “dismissed without prejudice.” In response to the state’s request, Judge Schaller dismissed the murder charge without prejudice. On September 3, 1987, a third probable cause hearing was held, once again, before Judge Hadden. This time, Judge Hadden found probable cause to support the murder charge. The defendant was tried to a jury of twelve, which, on October 13, 1988, found him guilty of murder. Judge Hadden then sentenced the defendant to forty-five years imprisonment.

On appeal, the defendant claims: (1) that the trial court erred in denying his motion for judgment of acquittal because of insufficient evidence to support the verdict; (2) that the trial court erred in denying his motion to exclude certain evidence, thus permitting the state to present irrelevant and prejudicial evidence; (3) that it was error for a subsequent probable cause hearing to be held before a different judge and absent significant new evidence; and (4) that the court’s dismissal of the information without prejudice at the second probable cause hearing was erroneous. We find error only in the trial court’s failure to grant the defendant’s motion in limine.

The jury could reasonably have found the following facts. On the afternoon of Saturday, February 28,1987, Malcolm Thomas visited the victim, Andrew Long, at Long’s apartment in New Haven. Thomas had a drink, and they both watched videotapes. Later, they drove downtown to Macy’s to purchase another VCR so that they could make copies of the videotapes. At the mall, Thomas and Long ran into the defendant, and Long invited the defendant to drop by his apartment later in the day. Thomas and Long then returned to Long’s apartment after stopping to buy two one liter bottles of ginger ale. Upon arriving at Long’s apartment, they carried in the new VCR, the ginger ale and two one-half gallon sized bottles of vodka that had been in Long’s car. In the apartment, Thomas and Long opened one of the new bottles of vodka and made drinks, and Thomas began connecting the new VCR with the old one. A short time later, the defendant arrived and stayed for fifteen to twenty minutes. He spoke with Long while Thomas continued attempting to connect the two VCRs. Thomas did not see the defendant have a drink at that time. The defendant then left the apartment saying he would be right back, but he did not return during the one or two hours that Thomas remained at the apartment.

At approximately 11:30 the next morning, Sunday, March 1, three young men passed by Long’s apartment on their way to play basketball. One of these men, Anthony Johnson, knew the defendant from their previous attendance together at the Westover job corps. Another man, Robert Williams, knew Long personally. Williams testified that he saw Long and another man, whom he later identified as the defendant, arguing in front of Long’s apartment. Johnson testified that he did not know Long, but recognized the defendant and said, “How are you doing Moody,” and Moody said “Hi” in return. At one point during the argument, Williams heard Long say, “I’m sick of your shit,” and then Long turned to go into his apartment and the defendant grabbed his arm. Long pulled his arm away and went into his apartment, followed by the defendant.

At approximately 2 o’clock that afternoon, Long drove over to Earl Osborne’s house and brought him back to his apartment. While at the apartment, the two men drank vodka and ginger ale and watched a basketball game. At one point, Leslie Williams, a friend of Long, stopped by and said she had car trouble and asked for assistance. While Leslie Williams was in the apartment, Osborne went to the refrigerator to make another drink, but Long asked him not to do so because there was only “about an inch” of vodka left. Long and Osborne then went out and helped Leslie Williams get her car started. The two men then went and purchased some Kentucky Fried Chicken, and returned to Long’s apartment at about 4 p.m. Upon returning to the apartment, Long and Osborne had another drink, and Long played a videotape. Long and Osborne then changed into shorts and proceeded to engage in oral sex while watching the videotape. Thereafter, Long said “he had company coming over,” so he had to take Osborne home. Before they left, however, they cleaned up the apartment, “including the glasses.” Osborne returned home at approximately 7 p.m. on Sunday, and Long was seen returning to his apartment, with a bag in his hands, at about 7:30 p.m. on Sunday.

That same night, at about 11:30 p.m., Long was beaten to death in his apartment with a blunt instrument. The evidence indicated that Long had been lying back on a couch, naked except for an open shirt, when he was beaten on the head and chest. The state’s criminologist testified that, after Long was killed, his arm was moved so that his hand pointed to his penis. Furthermore, there was blood spattered in all directions, covering the walls, curtains and windows. The television set was on, with the screen showing static. Connected to the set were two VCRs, both in the “on” position and both containing videotapes that had been stopped midway.

On the floor next to Long’s body was a drinking glass. A subsequent fingerprint examination revealed two sets of latent fingerprints on the glass, one belonging to Long and one belonging to the defendant. It was also determined that the defendant’s fingerprints had been superimposed over Long’s. In the kitchen sink, the detectives discovered a drinking glass containing a “reddish-brown” substance. This substance was later determined to be approximately three “driplets” of blood consistent with Long’s blood type, and the fingerprints on the glass matched those of the defendant. A third glass on the kitchen counter also contained the fingerprints of both the defendant and Long. In addition, the defendant’s fingerprints were lifted from the refrigerator door. In the refrigerator were a bottle of vodka and a bottle of ginger ale, both of which were almost full. The latent fingerprints lifted from the ginger ale bottle matched both the fingerprints of Long and the defendant. Those removed from the vodka bottle matched only those of the defendant. The detectives also discovered a bloodied tissue on the kitchen counter near the sink. The defendant is black, and a test of the blood on the tissue showed that it was consistent with the blood type of the defendant, as well as approximately 3 percent of the black population.

On the afternoon of March 5, the police asked the defendant if he would go to the police station to be interviewed, and he agreed. The defendant declined to be tape-recorded or to sign a statement, but he voluntarily stayed there for four hours answering every question that he was asked. In particular, the defendant stated that he had met Long a few years earlier when Long was his caseworker at the welfare office. Initially, the defendant denied that he had ever engaged in sexual relations with Long. Subsequently, he admitted that he and Long had had sexual relations approximately twelve times and that he felt guilty about it. The defendant stated further that he had been at Long’s apartment on Saturday, February 28, and had prepared “several drinks” of vodka and ginger ale for himself. He told the police that he had used only two glasses while he was there, a taller glass for the ginger ale and a shorter glass for the vodka, and that he had consumed the drinks in the living room. He also told the police that, during the thirty to sixty minutes that he was there, he had gone into every room in Long’s apartment. The defendant, however, denied having seen the victim again after approximately 4:30 to 5 p.m. on Saturday, February 28.

With respect to his activities on Sunday, March 1, the defendant told the police that he did not leave his apartment, which he shared with his Mend Brian Wells, until approximately 7 or 8 p.m. At that time, he stated that he went across the street to a convenience store to buy cigarettes, and then walked around, eventually stopping at the corner of Kensington and Edgewood Streets to purchase some marihuana. He told police that from there he went to see a friend at a house on County Street, and then returned to his apartment either at 10 p.m., 11 p.m. or midnight that evening. Wells testified, however, that the defendant left their apartment twice on Sunday, March 1. The first time was at approximately 10 or 10:30 a.m., and the second was sometime in the early evening. When the defendant returned the second time, shortly after midnight, Wells noticed a cut on the defendant’s wrist that was just beginning to clot. Wells gave the defendant a tissue to help stop the bleeding, but did not notice any other blood spatters on him. Wells further testified that the defendant appeared upset and nervous. In addition, sometime after the defendant was interviewed by the police on March 5, he telephoned Wells and asked him whether he had spoken with the police, and asked him not to sign anything. Moreover, the police seized a number of articles of clothing from the defendant’s apartment, including a pair of black shoes that he had worn for at least two weeks prior to their seizure. A stain on the sole of one of the shoes passed the “presumptive test for blood,” but was too small for further testing.

The defendant testified at trial, and once again stated that he was at Long’s apartment on Saturday afternoon, February 28. Contrary to Thomas’ testimony, however, the defendant testified that he made himself two drinks at that time, and used only two glasses while he was there. The defendant reiterated on the stand that he did not see Long again after Saturday afternoon, and stated that he had cut his wrist while jogging on Saturday after leaving Long’s apartment. He admitted that he left his own apartment earlier on Sunday, as Wells stated, but claimed it was early afternoon and not late morning when he left.

I

The defendant first argues that, because of insufficient evidence to support the verdict, the trial court erred in denying his motion for a judgment of acquittal. We disagree.

“When a verdict is challenged because of insufficient evidence, the issue is whether ‘ “ ‘the jury could have reasonably concluded, upon the facts established and the inferences reasonably drawn therefrom, that the cumulative effect of the evidence established guilt beyond a reasonable doubt.’ ” ’ State v. Braxton, 196 Conn. 685, 691, 495 A.2d 273 (1985), quoting State v. Stepney, 191 Conn. 233, 255, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772, reh. denied, 466 U.S. 954, 104 S. Ct. 2163, 80 L. Ed. 2d 547 (1984). Appellate analysis of a claim of insufficiency of the evidence requires us to undertake a twofold task: We must first review the evidence construing it in the light most favorable to sustaining the trial court’s verdict. State v. Williams, 205 Conn. 456, 468, 534 A.2d 230 (1987); State v. Vincent, 194 Conn. 198, 206, 479 A.2d 237 (1984); State v.D'Antuono, 186 Conn. 414, 421, 441 A.2d 846 (1982); State v. Perez, 182 Conn. 603, 606, 438 A.2d 1149 (1981). ‘ “ ‘We then determine whether, upon the facts thus established and the inferences reasonably drawn therefrom, the jury could reasonably have concluded that the cumulative effect of the evidence established guilt beyond a reasonable doubt .... In this process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct.’ ” ’ State v. Plourde, 208 Conn. 455, 458, 545 A.2d 1071 (1988), quoting State v. Rollinson, 203 Conn. 641, 665-66, 526 A.2d 1283 (1987), and cases cited therein.” State v. Avis, 209 Conn. 290, 308-309, 551 A.2d 26 (1988), cert. denied, 489 U.S. 1097, 109 S. Ct. 1570, 103 L. Ed. 2d 937 (1989).

Although the evidence in this case is far from overwhelming, it was sufficient to support the jury’s finding. As noted above, the defendant’s fingerprints were found in Long’s apartment. Given that the defendant was in Long’s apartment on the day before the murder, this fact alone is not significant. The placement of the fingerprints, however, could reasonably have led the jury to believe that the defendant was in Long’s apartment on the night of his murder. In particular, Osborne testified that when he was at Long’s apartment until about 7 p.m. on Sunday, there was only “about an inch” of vodka in the bottle in the refrigerator. When Long’s body was discovered, however, the defendant’s fingerprints were found on a full bottle of vodka in Long’s refrigerator. Thus, the jury could have inferred from this fact, and the fact that the defendant’s fingerprints were the only ones found on the glass in the sink that contained driplets of blood consistent with Long’s blood type, that the defendant had been in Long’s apartment after Osborne had been there on the evening of Long’s murder.

Moreover, the jury could reasonably have inferred from the presence on Long’s kitchen counter of the tissue with blood on it consistent with the defendant’s blood type, that the defendant had wiped his bleeding cut while at Long’s apartment on the night of the murder in much the same fashion as he did when he arrived back at his own apartment that night. Furthermore, it was reasonable for the jury to conclude that the defendant had not left the tissue at Long’s apartment when he was there on the day before the murder, because the defendant testified that he had cut himself while jogging after he had left Long’s apartment on Saturday afternoon.

Additionally, the state of mind that is characterized as “guilty consciousness” or “consciousness of guilt” is strong evidence that a defendant is indeed guilty. State v. Burak, 201 Conn. 517, 533, 518 A.2d 639 (1986). “We have held that misstatements of an accused, which a jury could reasonably conclude were made in an attempt to avoid detection of a crime or responsibility for a crime or were influenced by the commission of the criminal act, are admissible as evidence reflecting a consciousness of guilt.” (Emphasis omitted.) State v. Milner, 206 Conn. 512, 519, 539 A.2d 80 (1988). In this vein, the jury could reasonably have concluded that the following misstatements by the defendant were indicative of a consciousness of guilt. First, the defendant’s testimony that he never saw Long again after Saturday afternoon was directly contradicted by the testimony of both Robert Williams and Anthony Johnson, and the jury was free to find Williams and Johnson the more credible witnesses. Second, in his initial statement to the police the defendant maintained that he had not left his apartment on Sunday until early evening. At trial, the defendant stated that he had left his apartment sometime Sunday afternoon. Both of these assertions were contradicted by the testimony of Williams, Johnson and Brian Wells. Again, the jury could reasonably have concluded that Williams, Johnson and Wells were the more credible witnesses. Also, the jury could reasonably have inferred a consciousness of guilt from the defendant’s instructing Wells not to sign a statement with the police.

In sum, although the evidence in this case is not overwhelming, the jury could reasonably have concluded that the cumulative effect of the evidence established guilt beyond a reasonable doubt. Thus, the trial court did not err in concluding that there was enough evidence for this case to go to the jury.

II

Next, the defendant argues that the trial court erred in denying his motion in limine, thus permitting the state to present irrelevant and prejudicial evidence. We agree. In particular, the police seized clothing and a pair of black shoes from the defendant’s apartment. The items were tested for the presence of blood, and none was found on the clothing. A stain on one of the soles of the defendant’s shoes, however, gave a positive result for the “presumptive test for blood.” At trial, the state’s serologist, Elaine Pagliaro, testified that the “presumptive test for blood” is only a preliminary screening test that determines whether the actual test for blood should be administered. She further testified that the positive result on “the presumptive test” meant that the stain could be human blood, animal blood or something other than blood. In this case, however, the stain was too small to have the actual test for blood administered to it. Prior to Pagliaro’s testimony, the defendant filed a motion in limine arguing that the result of the “presumptive test for blood” should not be admitted because: “(1) said testimony is of no probative value whatsoever; and (2) it would have the effect of prejudicing the jury.” The trial court, however, denied the motion and an exception was duly noted.

“The first test of the admissibility of any evidence is whether it is relevant.” State v. Ward, 172 Conn. 163, 167, 374 A.2d 168 (1976). “We have reiterated that evidence is relevant only when it tends to establish the existence of a material fact or to corroborate other direct evidence in the case. State v. Sharpe, 195 Conn. 651, 659, 491 A.2d 345 (1985); State v. Mastropetre, 175 Conn. 512, 517, 400 A.2d 276 (1978).” State v. Talton, 197 Conn. 280, 285, 497 A.2d 35 (1985). “We have noted that ‘ “Evidence is admissible when it tends to establish a fact in issue or to corroborate other direct evidence in the case. One fact is relevant to another fact whenever, according to the common course of events, the existence of the one, taken alone or in connection with other facts, renders the existence of the other either certain or more probable . . . . ” ' ” State v. Gold, 180 Conn. 619, 645-46, 431 A.2d 501, cert. denied, 449 U.S. 920, 101 S. Ct. 320, 66 L. Ed. 2d 148 (1980). In the present case, the result of the “presumptive test for blood” had no probative value whatsoever. The test result did nothing toward establishing the likelihood of the presence of human blood on the sole of the defendant's shoe. Therefore, we hold that the test result was entirely irrelevant, and thus, the trial court abused its discretion by admitting it into evidence.

Having found error, we must now determine whether this error was harmful. The error in this case does not involve a constitutional violation. “ ‘ “When a trial error in a criminal case does not involve a constitutional violation the burden is on the defendant to demonstrate the harmfulness of the court’s error. State v. Ruth, 181 Conn. 187, 196-97, 435 A.2d 3 (1980). The defendant must show that it is more probable than not that the erroneous action of the court affected the result. Id.; State v. McClain, 171 Conn. 293, 300, 370 A.2d 928 (1976).” State v. Jones, 205 Conn. 723, 732, 535 A.2d 808 (1988).’ State v. Vilalastra, 207 Conn. 35, 47, 540 A.2d 42 (1988).” State v. Sierra, 213 Conn. 422, 436-37, 568 A.2d 448 (1990).

We conclude that the defendant has met his burden in this case. Specifically, we conclude that it is more probable than not that the erroneous action of the court misled the jury and thereby affected the result of the defendant’s trial. In particular, the jurors sent out a note during deliberations that informed the court that they desired to rehear the testimony regarding: “[Wjhat shoe blood found on.” In State v. Hoeplinger, 206 Conn. 278, 298, 537 A.2d 1010 (1988), we noted that a jury’s request that testimony be reread indicated that the jury regarded the evidence as important. See Fiswick v. United States, 329 U.S. 211, 220, 67 S. Ct. 224, 91 L. Ed. 196 (1946). Thus, not only is the jurors’ question a clear indication that they deemed the evidence regarding the “presumptive test for blood” as being important, but the jurors’ question also undeniably indicates that they were misled. Given that the jurors’ note read, “[Wjhat shoe blood found on,” it is obvious that they did not understand that only a stain was found on the defendant’s shoe, and that the “presumptive test for blood” was not probative that the stain on the shoe was human blood.

As a result, we find that the trial court’s failure to grant the defendant’s motion in limine constituted harmful error.

Ill

The defendant also argues that his third probable cause hearing was defective as it was not before the same judge as his second probable cause hearing, and was devoid of any significant new evidence. We disagree.

The defendant acknowledges that General Statutes § 54-46a (c) specifically states in part: “A determination by the court that there is not probable cause to require the accused person to be put to trial for the offense charged shall not operate to prevent a subsequent prosecution of such accused person for the same offense.” Nevertheless, he contends that considerations of due process mandate that subsequent probable cause hearings be held before the same judge and only when new evidence is to be presented. We need not address the defendant’s arguments, however, because, even if we agreed with his assertions, the defendant’s probable cause hearing would still have been free from error. In particular, the defendant’s third probable cause hearing was presided over by the same judge who presided over his first hearing, and significant new evidence was presented by the state at the third hearing. Specifically, the state introduced, for the first time, the testimony of Robert Williams, who stated that he saw the defendant arguing with Long on the day of the murder. Thus, the defendant’s claims of error regarding his third probable cause hearing are without merit.

IY

Finally, the defendant asserts that the court’s dismissal of the information without prejudice at the second probable cause hearing was error. We disagree.

After the court’s finding of no probable cause at the second probable cause hearing, the state requested that the murder charge be “dismissed without prejudice.” Specifically, the state argued: “It is the State’s intention, your Honor, to continue this investigation and we believe we presented evidence indicating [the defendant’s] involvement in this murder. Your Honor has found it to be lacking, but the State still feels it wishes to continue an investigation in an effort to build a stronger case to present to the Court. And, therefore, I don’t want any misinterpretation of the State’s actions or comments to indicate anything other than a resolute intention to pursue this matter on the charge of murder. And I believe that under Section 54-46a, which is the operative statute, that it provides for the ability of the State to reprosecute on murder after a contrary ruling by the Court.” The court then asked defense counsel if he had “any objection or any comments about the procedure the State wishe[d] to follow.” Defense counsel responded: “I have no objections to it, your Honor. I would also ask that the Court dismiss the charge.” The court then ruled: “[T]he Court will enter a dismissal without prejudice to the State to reinstitute a prosecution as I think is provided for by the operative statute [§] 54-46a. So the charge of murder against [the defendant] is dismissed without prejudice to the State to renew the proceeding, renew the prosecution at a later time.”

The defendant now argues that General Statutes § 54-56b, as interpreted in State v. Talton, 209 Conn. 133, 547 A.2d 543 (1988), mandates that the court’s dismissal of the murder charge against the defendant should have been with prejudice. We find no merit, however, to the defendant’s argument. In particular, § 54-56b concerns the state’s right to seek a nolle prosequi when the defendant “demands” a dismissal. See id., 139-40. In the present case, the state was not attempting to enter a nolle prosequi, but rather, was simply requesting that the court dismiss the murder charge without prejudice so that it would be free to renew the prosecution at a later time as provided for by § 54-46a. Furthermore, defense counsel acquiesced in this arrangement.

There is error, the judgment is set aside and the case is remanded for a new trial.

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 committed the proscribed act or acts 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 (Rev. to 1987)] Sec. 54-46a. probable cause hearing FOR PERSONS CHARGED WITH CRIMES PUNISHABLE BY DEATH OR LIFE imprisonment, (a) No person charged by the state on or after May 26,1983, shall be put to plea or held to trial for any crime punishable by death or life imprisonment unless the court at a preliminary hearing determines there is probable cause to believe that the offense charged has been committed and that the accused person has committed it. The accused person may knowingly and voluntarily waive such preliminary hearing to determine probable cause.
      “(b) Unless waived by the accused person or extended by the court for good cause shown, such preliminary hearing shall be conducted within sixty days of the filing of the complaint or information in superior court. The court shall be confined to the rules of evidence, except that written reports of expert witnesses shall be admissible in evidence and matters involving chain of custody shall be exempt from such rules. No motion to suppress or for discovery shall be allowed in connection with such hearing. The accused person shall have the right to counsel and may attend and, either individually or by counsel, participate in such hearing, present argument to the court, cross-examine witnesses against him and obtain a transcript of the proceedings at his own expense. At the close of the prosecution’s case, if the court finds that, based on the evidence presented by the prosecution, probable cause exists, the accused person may make a specific offer of proof, including the names of witnesses who would testify or produce the evidence offered. The court shall not allow the accused person to present such evidence unless the court determines that such evidence would be sufficient to rebut the finding of probable cause.
      “(c) If, from the evidence presented pursuant to subsection (b) of this section, it appears to the court that there is probable cause to believe that the accused person has committed the offense charged, the court shall so find and approve the continuance of the accused person’s prosecution for that offense. A determination by the court that there is not probable cause to require the accused person to be put to trial for the offense charged shall not operate to prevent a subsequent prosecution of such accused person for the same offense.”

       At trial, the following colloquy transpired between the state’s attorney and Pagliaro:
      “Q. Now, when a stain is presented to your office for comparison purposes would you explain for the ladies and gentlemen of the jury the first type of test that you do on a stain to determine whether or not it is blood?
      “A. The first test which is performed on a stain which is a suspected blood stain is a chemical presumptive test or a screening test and this is a color test and if the result is positive that indicates the sample may be blood or may be some other substance causing the color change.
      “Q. And so all that does, would it be fair to say, is give you a springboard to determine whether or not further testing should be done?
      “A. That’s correct.”

       “[General Statutes] Sec. 54-56b. eight to dismissal oe trial on nolle. A nolle prosequi may not be entered as to any count in a complaint or information if the accused objects to the nolle prosequi and demands either a trial or dismissal, except with respect to prosecutions in which a nolle prosequi is entered upon a representation to the court by the prosecuting official that a material witness has died, disappeared or become disabled or that material evidence has disappeared or has been destroyed and that a further investigation is therefore necessary.”


author: Hull, J. Callahan, J.,

text:
    Geurson D. Silverberg v. Great Southwest Fire Insurance Company
    (13739)
    Peters, C. J., Shea, Callahan, Glass and Hull, Js.
    Argued February 6
    decision released April 24, 1990

      Joseph T. Sweeney, for the appellant (defendant).

      Robert J. Cathcart, with whom was James B. Pomeroy, for the appellee (plaintiff).
   Hull, J.

The dispositive issue in this appeal is whether the plaintiff, Geurson D. Silverberg, qualified as an insured under a public officials and employees liability insurance policy (policy) purchased by the city of Norwich from the defendant, Great Southwest Fire Insurance Company. The plaintiff was sued by the city of Norwich for professional malpractice that allegedly had been committed by the plaintiff during his tenure as assistant corporation counsel for that city. The present action was instituted by the plaintiff, when the defendant, upon being notified of the malpractice claim against the plaintiff, denied the plaintiff coverage under the policy. The two count complaint was tried before a jury that found in favor of the plaintiff on each of the counts and awarded damages in the amount of $1,000,000 on the first count and $1,050,000 on the second count. From the judgment rendered on the jury verdicts, the defendant appealed to the Appellate Court; we subsequently transferred this case to ourselves pursuant to Practice Book § 4023. We find error.

The facts relevant to this appeal are as follows. The plaintiff is an attorney who has practiced law in Norwich since 1946. In January, 1974, pursuant to a city ordinance and a resolution of the Norwich city council, the plaintiff was appointed to the position of assistant corporation counsel. The plaintiff was reappointed to that position by the city council in January, 1976, December, 1977, and December, 1979, and served continuously in that capacity until December, 1981. While serving as assistant corporation counsel, the plaintiff was listed on the city payroll and was paid on a biweekly basis. Social security and unemployment taxes were withheld from his earnings. The plaintiff was also eligible to participate in the city’s health and life insurance programs. The legal work performed by the plaintiff in his capacity as assistant corporation counsel was assigned to him by the corporation counsel. The plaintiff handled these matters from the office he maintained for his private law practice.

In December, 1982, the plaintiff was sued by the city of Norwich for legal malpractice. The gravamen of the city’s complaint was that, while serving as assistant corporation counsel, the plaintiff had failed properly to prosecute a tax appeal on behalf of the city. The plaintiff immediately gave notice of the action against him to his professional malpractice carrier, American Home Assurance Company (American Home). American Home agreed to provide the plaintiff a defense, but reserved its right to refuse to pay the claim. The reservation of rights was based upon the language of the American Home policy that excluded from coverage an insured who was sued by his employer or an insured who was an elected public official or employee of a governmental body.

In October, 1985, the plaintiff learned that the city had purchased an insurance policy from the defendant that had been in effect on the date the malpractice action against him was instituted. The policy included as insureds “those persons who were, now or shall be duly elected or appointed officials or members or employees, paid or volunteer” of the city. Concluding that he was an insured under this policy, the plaintiff, on October 31, 1985, sent a letter to the defendant notifying it of the pending malpractice action against him. The notice letter requested that the defendant provide the plaintiff with a defense and indemnify him from any potential loss in the malpractice action. The defendant responded to the plaintiffs request by a letter dated November 12,1985, in which the defendant refused to provide the plaintiff with insurance coverage, claiming, inter alia, that the plaintiff was not an “insured” under the terms of the policy.

The present action was initiated by the plaintiff in January, 1986, on the basis of the defendant’s refusal to provide the plaintiff coverage under the policy. The substitute complaint, dated December 1, 1986, consisted of two counts, the first alleging a breach of contract and the second alleging a breach of the duty of good faith and fair dealing. The case was tried to a jury that returned verdicts in favor of the plaintiff and awarded damages of $1,000,000 on the first count and $1,050,000 on the second count. The trial court rendered judgment accordingly.

On appeal, the defendant claims that the trial court erred in denying its motions for directed verdicts and for judgment notwithstanding the verdicts, because: (1) the plaintiff was not an insured under the terms of the policy; (2) the plaintiff s notice to the defendant of the malpractice action against him was deficient as a matter of law; (3) the evidence before the jury was insufficient to support its finding of bad faith on the part of the defendant; and (4) the evidence before the jury was insufficient to support the dollar amounts of the damage awards. We conclude that the plaintiff did not qualify as an insured under the terms of the policy. The trial court, therefore, erred in denying the defendant’s motions for directed verdict on each of the two counts. In light of our disposition of the defendant’s first claim of error, we need not address the other issues raised by this appeal.

The policy definition of an “insured” limited coverage under that policy to the city of Norwich “and those persons who were, now or shall be duly elected or appointed officials or members or employees, paid or volunteer, of the governing body of such commissions, boards or other units operating by and within an apportionment of the total operating budget . . . .” The defendant argues that the evidence presented at trial clearly demonstrated that the plaintiff was neither an “official” nor an “employee” of the city of Norwich, and, therefore, did not qualify as an insured under the terms of the policy. We agree.

We turn first to the question of whether the plaintiff, who was appointed to the position of assistant corporation counsel by the Norwich city council, was an appointed “official.” “We have said that ‘[t]he essential characteristics of a “public office” are (1) an authority conferred by law, (2) a fixed tenure of office, and (3) the power to exercise some portion of the sovereign functions of government. Kelly v. Bridgeport, 111 Conn. 667, 671, 151 A. 268 [1930]; Mechem, Public Officers § 1.’ Spring v. Constantino, 168 Conn. 563, 568-69, 362 A.2d 871 (1975); Housing Authority v. Dorsey, 164 Conn. 247, 251, 320 A.2d 820, cert. denied, 414 U.S. 1043, 94 S. Ct. 548, 38 L. Ed. 2d 335 (1973); see also Tremp v. Patten, 132 Conn. 120, 124-25, 42 A.2d 834 (1945); 63A Am. Jur. 2d, Public Officers and Employees § 5 (1984). ‘An individual so invested is a public officer.’ Housing Authority v. Dorsey, supra, 251.” Murach v. Planning & Zoning Commission, 196 Conn. 192, 198, 491 A.2d 1058 (1985); see also Kinney v. State, 213 Conn. 54, 61, 566 A.2d 670 (1989).

The defendant concedes that the position of assistant corporation counsel for the city of Norwich does possess two of the three essential characteristics required of a “public office.” First, the position was created by ordinance, “ ‘and, assuming that the [city] council acted within the powers conferred upon it by the city charter, the office was one created by law.’ Kelly v. Bridgeport, supra, 671.” Murach v. Planning & Zoning Commission, supra, 199. Second, the ordinance provides that “during such time as the corporation counsel is temporarily absent or disabled [the assistant corporation counsel] shall act in the place of the corporation counsel.” The assistant corporation counsel is thus invested by ordinance with the authority, under limited circumstances, to exercise that portion of the sovereign functions of government within the control of the corporation counsel. See Kelly v. Bridgeport, supra.

As the defendant argues, however, the position of assistant corporation counsel did not have a fixed tenure of office. “ ‘Public office embraces the idea of tenure and duration’ and this view rests on the continuing and permanent nature of the office .... 63A Am. Jur. 2d, Public Officers and Employees § 6 (1984).” Murach v. Planning & Zoning Commission, supra. In this regard, we find it significant that the ordinance creating the position of assistant corporation counsel specifically provides that the assistant “shall serve at the pleasure of the corporation counsel.” This provision clearly does not contemplate that the position be a “continuing and permanent” one. While it is true, as the plaintiff argues, that he was reappointed to the position by the city council every two years from 1974 through 1980, the fact remains that the plaintiff served “at the pleasure of the corporation counsel,” not under a fixed tenure of office. Therefore, because the position of assistant corporation counsel did not possess each of the three essential characteristics required of a “public office,” the plaintiff was not an “official” of the city of Norwich.

We next consider whether the plaintiff was an “employee” of the city of Norwich. The defendant argues that the plaintiff, in his capacity as assistant corporation counsel, was not an employee, but rather was an independent contractor. We agree.

“The legal incidents of the relation between an employer and an employee or independent contractor are well established. Lassen v. Stamford Transit Co., 102 Conn. 76, 79-80, 82, 128 A. 117 [1925]. In Alexander v. R. A. Sherman’s Sons Co., 86 Conn. 292, 297, 85 A. 514 [1912], we adopted the definition that “[a]n independent contractor is one who, exercising an independent employment, contracts to do a piece of work according to his own methods and without being subject to the control of his employer, except as to the result of his work.” This definition has been amplified in subsequent cases but at no time has the basic principle been altered. See Francis v. Franklin Cafeteria, Inc., 123 Conn. 320, 324, 195 A. 198 [1937]. . . . “The fundamental distinction between an employee and an independent contractor depends upon the existence or nonexistence of the right to control the means and methods of work.” Beaverdale Memorial Park, Inc. v. Danaher, 127 Conn. 175, 179, 15 A.2d 17 [1940]; see Kaliszewski v. Weathermaster Alsco Corporation, 148 Conn. 624, 628, 173 A.2d 497 [1961]; Bourgeois v. Cacciapuoti, 138 Conn. 317, 320-21, 84 A.2d 122 [1951]; Norwalk Gaslight Co. v. Norwalk, 63 Conn. 495, 524, 28 A. 32 [1893].’ Darling v. Burrone Bros., Inc., 162 Conn. 187, 195-96, 292 A.2d 912 [1972].” Spring v. Constantino, supra, 573-74.

“The determination of general control is not always a simple problem. Many factors are ordinarily present for consideration, no one of which is, by itself, necessarily conclusive.” Bourgeois v. Cacciapuoti, supra, 321. The plaintiff highlights the following evidence as indicative of the control exercised over him by the city. The trial testimony revealed that the plaintiff was hired to do the legal work assigned to him by the corporation counsel. With respect to these assigned legal matters, the city council and corporation counsel directed the plaintiff to prosecute, defend or settle matters involving the city, and reviewed the services provided by the plaintiff. The testimony further revealed that the plaintiff was included on the city’s payroll and that taxes and social security were withheld from his earnings. Moreover, the plaintiff was included in the city health and life insurance programs. We agree with the plaintiff that these factors, under certain circumstances, are characteristic of the relationship of employer and employee. These factors lose meaningful significance, however, in light of the testimony given at trial by the plaintiff.

The plaintiff admitted that the city did not provide him with office space or facilities in which he could perform the city’s legal work; nor did the city control the plaintiff’s work schedule. In fact, the plaintiff testified that the city “wouldn’t have had the gall to impose such hours.” Additionally, the plaintiff admitted that he serviced the legal needs of the city in the same way that he serviced the legal needs of his other clients. Given this testimony, it is clear that, while the result of the plaintiff’s work may have been subject to the city’s control, as with his other clients, the means and methods by which the plaintiff reached that result were not. We conclude, therefore, that the plaintiff was not an “employee” of the city of Norwich.

Because the plaintiff, in his position of assistant corporation counsel, was neither an “official” nor an “employee” of the city of Norwich, he did not qualify as an insured under the defendant’s policy. Accordingly, the defendant was entitled to a directed verdict on each count of the plaintiff’s complaint.

There is error, the judgment is set aside and the case is remanded to the trial court with direction to render judgment for the defendant on both counts.

In this opinion Peters, C. J., Shea and Glass, Js., concurred.

Callahan, J.,

concurring. I agree with the result. I believe, however, that the liability policy in question was solely for the purpose of protecting the city of Norwich, its officials and employees from damages to third parties caused by the negligence or malpractice of those officials and employees. I do not think that it was designed or intended to protect the city from the negligence or malpractice of its own agents. It is a strange liability policy, indeed, that protects the insured from itself. I would therefore find no coverage on that basis.

       Ordinance No. 522, now codified and amended in §§ 2-15 through 2-17 of the Norwich Code of Ordinances, provides as follows: “Be it ordained by the Council of the City of Norwich:
      “1. There shall be an assistant corporation counsel who shall be appointed by the corporation counsel with the approval of the Council and who shall serve at the pleasure of the corporation counsel.
      “2. The assistant corporation counsel shall be an elector of the City of Norwich and an attorney admitted to practice in the State of Connecticut.
      “3. The assistant corporation counsel shall have such duties as are assigned to him by the corporation counsel and during such time as the corporation counsel is temporarily absent or disabled he shall act in the place of the corporation counsel.
      “4. The assistant corporation counsel shall be paid at the rate of $8,000.00 per annum for the first year 1970-1971.”

       In October, 1986, American Home settled the malpractice action on the plaintiff’s behalf, paying $500,000 to the city of Norwich and agreeing to share with the city any recovery in the plaintiffs action against the defendant. In return for the settlement, the plaintiff assigned to American Home all of his rights arising out of the malpractice action.

       We note that the policy does not define the term “official”; nor does it provide a definition of the term “employee” beyond the following provision: “ ‘Employee’ shall not include any person working on a retainer or contractual agreement.”

       We note that, because we conclude that the plaintiff was not an insured under the express terms of the policy, we do not reach the question of whether this policy was designed or intended solely to protect the city from damages owed to a third person, as the concurrence suggests, or also to protect the city from losses suffered directly.

       In Kelly v. Bridgeport, 111 Conn. 667, 670, 151 A. 268 (1930), we indicated in dictum that a fixed tenure of office was one that was “either fixed by law or enduring at the pleasure of the creating power.” The position of assistant corporation counsel was not one with a fixed tenure of office even under that definition. The position was created by the Norwich city council. Pursuant to the express language of the ordinance adopted by the council, the holder of the assistant corporation counsel position served not at the pleasure of the creating power, but rather at the pleasure of the corporation counsel.

       In contrast to the present case was the factual scenario presented in Bieluczyk v. Crown Petroleum Corporation, 134 Conn. 461, 58 A.2d 380 (1948). This court determined in Bieluczyk that an employer and employee relationship existed due to the following factors: the employee worked on the employer’s premises; the employee was allowed to sell only the employer’s products; the premises were subject to frequent visits by the employer’s representatives who issued orders concerning the condition of the workplace and advised as to how sales might be increased; and those same representatives made other periodic visits to see that the workplace was kept open the required number of hours and that the orders given were carried out.

       The holding in this case is entirely consistent with our holding in Norwich v. Silverberg, 200 Conn. 367, 511 A.2d 336 (1986), in which we concluded that the defendants were not entitled to reimbursement from the city of Norwich under the provisions of General Statutes § 7-101a.