text:
    Connecticut State Medical Society et al. v. Connecticut Board of Examiners in Podiatry et al.
    (13334)
    (13335)
    Peters, C. J., Callahan, Glass, Covello and Hull, Js.

      Argued June 9
    decision released August 23, 1988

      William J. McCullough, assistant attorney general, with whom, on the brief, were Joseph I. Lieberman, attorney general, and Robert E. Walsh and Richard J. Lynch, assistant attorneys general, for the appellant (named defendant).

      William H. Narwold, with whom were Eric Watt Weichmann and, on the brief, Karen L. Goldthwaite, for the appellants (defendant Steven Perlmutter et al.).

      Linda L. Randall, with whom were Jeanette C. Schreiber and Andrew W. Roraback, for the appellees (plaintiffs).
   Hull, J.

The dispositive issue in this appeal is whether the trial court erred in sustaining the appeal of the plaintiffs, the Connecticut State Medical Society and Enzo Sella, M.D., from a declaratory ruling of the defendant Connecticut Board of Examiners in Podiatry (board). In proceedings to determine whether the scope of podiatry practice, as defined in General Statutes § 20-50, includes treatment of the ankle in certain respects, the board had declared that “the ankle is part of the foot and the foot is part of the ankle.” We conclude that the court applied the correct standard of review of the board’s ruling in determining that as a matter of law the board had erroneously construed the applicable statute. Accordingly, we find no error.

This case has its genesis in the following ruling by a Medicare intermediary in January, 1984: “Podiatrists meet the Medicare definition of physician to the extent that state law permits their practice. In Connecticut that practice is limited to the diagnosis, prevention and treatment of foot ailments; therefore, services involving the ankle are not covered by Medicare.” This ruling caused great concern to doctors of podiatric medicine. In a letter dated March 18,1984, the board sought an opinion from the attorney general on the following question: “Is the diagnosis and treatment of sprains, strains and positional abnormalities of the ankle . . . within the scope of podiatry practice in Connecticut?” In its request, the board noted that “[podiatrists in Connecticut have conservatively treated minor sprains, strains and fractures of the foot and ankle for many years without any regulatory or reimbursement questions being raised.”

The attorney general responded by letter dated May 30, 1984, and stated that the “question posed in the request for advice is one which calls for a factual determination. In order to respond, analysis must first be conducted of the human anatomy to ascertain whether the ankle is, in fact, part of the foot, or viceversa. Once accomplished, the analysis would have to continue with the determination of whether a sprain or strain of the ankle is, in fact, an ‘ailment of the foot.’ Conn. Gen. Stat. § 20-50.” 62 Op. Conn. Atty. Gen. 229, 231 (1984). The attorney general concluded that “[these] factual issues identified above are best addressed by the Board of Examiners in Podiatry directly.” Id. The attorney general’s opinion then set forth three mechanisms that the board could utilize to resolve these factual issues: (1) a declaratory ruling pursuant to General Statutes § 4-176; (2) regulations pursuant to General Statutes § 19a-14 (a) (4); or (3) adjudication of a disciplinary complaint concerning a podiatrist claimed to be acting beyond the scope of his licensure, pursuant to General Statutes § 20-59. Id.

After issuance of the attorney general’s opinion, three doctors of podiatric medicine, the defendants Steven Perlmutter, Kove J. Schwartz and Harvey D. Lederman, wrote separately to the board requesting clarification of the opinion. In September, 1984, the board issued a notice of hearing, pursuant to § 4-176, stating that a hearing would be held “for the purpose of issuing a declaratory ruling as requested on the issue of: Whether the diagnosis and treatment of sprains, strains and positional abnormalities of the ankle [are] within the scope of podiatry practice in Connecticut.” The commissioner of health services and the three named doctors of podiatric medicine were designated as parties to the proceedings.

The board conducted the hearing on November 7, 1984, and received fifteen exhibits and heard testimony from eleven witnesses, both podiatrists and medical doctors, concerning the anatomical relationship between the foot and the ankle. It subsequently issued a declaratory ruling that the ankle is part of the foot and that podiatrists could, therefore, treat ankle ailments. The plaintiffs appealed from the board’s ruling, pursuant to General Statutes § 4-183 (a). The defendants moved to dismiss the appeals on the ground that the plaintiffs failed to allege sufficient facts from which aggrievement could be found. The trial court granted the motion to dismiss. On the plaintiffs’ appeal from the judgment of dismissal, we reversed and remanded, holding that the allegations of the plaintiffs’ complaint satisfied the pleading requirements for aggrievement. State Medical Society v. Board of Examiners in Podiatry, 203 Conn. 295, 303-304, 524 A.2d 636 (1987).

On remand, the trial court found that the plaintiffs were aggrieved and sustained their administrative appeal. The court characterized the issue as whether the board’s actions represented a valid interpretation of the statute or an impermissible attempt to expand the scope of podiatry practice. It acknowledged that the board, as an agency within the meaning of General Statutes § 4-166 (1), may properly issue declaratory rulings, pursuant to § 4-176, predicated on its interpretation of statutes made for its guidance and which it is charged with administering. It noted, however, that such an agency must act strictly within its statutory authority and cannot modify, abridge or otherwise change the statutory provisions under which it acquires authority. The court stated that its review was not limited to a determination of whether the board’s declaratory ruling interpreting a statute was clearly erroneous in view of the reliable, probative and substantial evidence on the whole record, but that while the court should not substitute its judgment for that of the agency on factual issues, it may disturb the agency’s ruling if it is in violation of statutory provisions or affected by other error of law. The court concluded that, since General Statutes § 20-50 has not previously been subjected to judicial scrutiny, its construction was a question of law on which an administrative ruling is not entitled to special deference and that the court may review the ruling to determine whether it was correct as a matter of law.

The court then considered § 20-50, noting that it concerned “foot ailments” and, in four separate areas, referred to “feet.” It reasoned that words and phrases are to be construed according to the commonly approved usage of the language. It further concluded that where language is clear and unambiguous, there is no room for construction, and that a statute does not become ambiguous merely because the parties argue for or would prefer different meanings. The court finally concluded that the statute clearly and specifically limits the practice of podiatry to diagnosis of foot ailments and surgery on the feet. In doing so it relied on common understanding and the definition of “foot” contained in Webster’s Third New International Dictionary. The court decided that “foot” has a well accepted and common meaning that does not include the ankle, and therefore, the board’s ruling clearly expanded the ambit of podiatry practice as defined in § 20-50 because it is contrary to the plain meaning of the statutes.

The board and the podiatrists filed separate appeals to die Appellate Court. Pursuant to Practice Book § 4023, we transferred these appeals to this court.

On appeal, the podiatrists claim that: (1) the trial court erred in reviewing the board’s declaratory ruling under a de novo standard of review, rather than under the statutory review criteria contained in § 4-183 (g); and (2) the board correctly concluded, on the basis of the facts found at the evidentiary hearing held on November 7, 1984, that the diagnosis and treatment of sprains, strains and positional abnormalities of the ankle are within the scope of podiatry practice in Connecticut.

The board assigns as error: (1) the trial court’s ruling that the proper interpretation of the term “foot” as used in § 20-50 is purely a question of law rather than a mixed question of law and fact; (2) the trial court’s conclusion that the board’s declaratory ruling served to expand the ambit of podiatry practice as set forth in § 20-50; and (3) the trial court’s ruling that the term “foot” as used in § 20-50 is to be accorded its commonly understood meaning as reflected in Webster’s Dictionary.

For clarification, we construe these various claims of error as two issues: (1) whether the trial court applied the appropriate standard of review to the board’s rulings; and (2) whether the trial court correctly interpreted § 20-50.

Standard of Review

The podiatrists argue that the trial court conducted a de novo review of the board’s declaratory ruling and disregarded entirely the opinion of the attorney general and the board’s factual findings and conclusions of law. They claim that the court substituted its judgment for that of the agency as to the weight of the evidence on questions of fact in violation of General Statutes § 4-183 (g). They further claim that the court erred in failing to afford “special deference” to the board’s factual findings, and to time-tested agency interpretations.

The standard of judicial review of administrative agency rulings is well established. Section 4-183 (g) permits modification or reversal of an agency’s 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.” The trial court may not retry the case or substitute its judgment for that of the agency on the weight of the evidence or questions of fact. General Statutes § 4-183 (g); Griffin Hospital v. Commission on Hospitals & Health Care, 200 Conn. 489, 496, 512 A.2d 199, appeal dismissed, 479 U.S. 1023, 107 S. Ct. 781, 93 L. Ed. 2d 819 (1986); Hospital of St. Raphael v. Commission on Hospitals & Health Care, 182 Conn. 314, 318, 438 A.2d 103 (1980); Madow v. Muzio, 176 Conn. 374, 376, 407 A.2d 997 (1978). Rather, an agency’s factual and discretionary determinations are to be accorded considerable weight by the courts. Connecticut Hospital Assn., Inc. v. Commission on Hospitals & Health Care, 200 Conn. 133, 140, 509 A.2d 1050 (1986); Board of Aldermen v. Bridgeport Community Antennae Television Co., 168 Conn. 294, 298-99, 362 A.2d 529 (1975); Westport v. Norwalk, 167 Conn. 151, 355 A.2d 25 (1974).

On the other hand, it is the function of the courts to expound and apply governing principles of law. N.L.R.B. v. Brown, 380 U.S. 278, 291, 85 S. Ct. 980, 13 L. Ed. 2d 839 (1965); International Brotherhood of Electrical Workers v. N.L.R.B., 487 F.2d 1143, 1170-71 (D.C. Cir. 1973), aff’d sub nom. Florida Power & Light Co. v. International Brotherhood of Electrical Workers, 417 U.S. 790, 94 S. Ct. 2737, 41 L. Ed. 2d 477 (1974); Connecticut Hospital Assn., Inc. v. Commission on Hospitals & Health Care, supra; Real Estate Listing Service, Inc. v. Real Estate Commission, 179 Conn. 128, 138-39, 425 A.2d 581 (1979). This case presents a question of law turning upon the interpretation of a statute. See Brannigan v. Administrator, 139 Conn. 572, 577, 95 A.2d 798 (1953); Bridgeport v. United Illuminating Co., 131 Conn. 368, 371, 40 A.2d 272 (1944). Both the board and the trial court had to construe § 20-50 to determine the permissible scope of podiatry practice in Connecticut. In our view, this is purely a question of law, requiring that the intent of the legislature be discerned. Such a question invokes a broader standard of review than is ordinarily involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion. Robinson v. Unemployment Security Board of Review, 181 Conn. 1, 5, 434 A.2d 293 (1980).

Ordinarily, we give great deference to the construction given a statute by the the agency charged with its enforcement. Griffin Hospital v. Commission on Hospitals & Health Care, supra, 496-97; Corey v. Avco-Lycoming Division, 163 Conn. 309, 326, 307 A.2d 155 (1972) (Loiselle, J., concurring), cert. denied, 409 U.S. 1116, 93 S. Ct. 903, 34 L. Ed. 2d 699 (1973). We agree with the trial court, however, that, in this case, the board’s interpretation of § 20-50 is not entitled to any special deference. “Ordinarily, the construction and interpretation of a statute is a question of law for the courts where the administrative decision is not entitled to special deference, particularly where, as here, the statute has not previously been subjected to judicial scrutiny or time-tested agency interpretations. Texaco Refining & Marketing Co. v. Commissioner, 202 Conn. 583, 599, 522 A.2d 771 (1987); Schlumberger Technology Corporation v. Dubno, 202 Conn. 412, 423, 521 A.2d 569 (1987); see also Board of Education v. Board of Labor Relations, 201 Conn. 685, 698-99, 519 A.2d 41 (1986); Wilson v. Freedom of Information Commission, 181 Conn. 324, 342-43, 435 A.2d 353 (1980).” New Haven v. Freedom of Information Commission, 205 Conn. 767, 773-74, 535 A.2d 1297 (1988).

Neither the board nor the courts have previously ruled on the issue presented here. Accordingly, such deference is not due the board’s construction of § 20-50.

The podiatrists also argue the related principle of deference to a time-tested agency interpretation of a statute. They claim that “a practical construction placed on legislation over many years” will be accorded special deference by a reviewing court, citing Schieffelin & Co. v. Department of Liquor Control, 194 Conn. 165, 174, 479 A.2d 1191 (1984). We have accorded deference to such a time-tested agency interpretation of a statute, but only when the agency has consistently followed its construction over a long period of time, the statutory language is ambiguous, and the agency’s interpretation is reasonable. Texaco Refining & Marketing Co. v. Commissioner, supra; Sutton v. Lopes, 201 Conn. 115, 120, 513 A.2d 139, cert. denied sub nom. McCarthy v. Lopes, 479 U.S. 964, 107 S. Ct. 466, 93 L. Ed. 2d 410 (1986); Schieffelin & Co. v. Department of Liquor Control, supra; Clark v. Town Council, 145 Conn. 476, 485, 144 A.2d 327 (1958); Wilson v. West Haven, 142 Conn. 646, 657, 116 A.2d 420 (1955). The defendants rely on the fact that podiatrists have long performed the procedures in question in this case. We disagree that such practices constitute time-tested agency interpretation of the statute. Further, we do not consider the board’s knowledge of and acquiescence in certain podiatric practices to rise to the level of statutory construction entitled to judicial deference.

We also disagree that the court failed to give proper deference to the opinion of the attorney general. “Although an opinion of the attorney general is not binding on a court, it is entitled to careful consideration and is generally regarded as highly persuasive.” Connecticut Hospital Assn., Inc. v. Commission on Hospitals & Health Care, supra, 143. We note that the opinion of the attorney general, although so labeled and published in 62 Op. Conn. Atty. Gen. 229, 231 (1984), is an opinion in name only. It contains no legal analysis of a contested issue for the guidance of those interested. Rather, the “opinion” merely referred the matter to the board for a “factual determination” and contained no legal analysis of the type to which our court has earlier granted deference. See Connecticut Hospital Assn., Inc. v. Commission on Hospitals & Health Care, supra.

The board’s contention that the issue presented was a mixed question of law and fact is also without merit. Interpretation of the statute should effect the intent of the legislature and not expand the law’s meaning to accommodate unauthorized practices simply because they have been performed in the past.

Since we consider the issue in this case to be one of statutory interpretation to determine the legislature’s intent with regard to the scope of podiatry practice, we conclude that the trial court applied the appropriate standard in reviewing the board’s construction of § 20-50.

Interpretation of the Term “Foot”

General Statutes § 20-50 defines podiatry as “the diagnosis, prevention and treatment of foot ailments . . . the practice of surgery upon the feet . . . the dressing, padding and strapping of the feet; the making of models of the feet and the palliative and mechanical treatment of functional and structural ailments of the feet, not including the amputation of the leg, foot or toes or the treatment of systemic diseases other than local manifestations in the foot.” Our principal objective in construing statutory language is to ascertain the apparent intent of the legislature. Rawling v. New Haven, 206 Conn. 100, 105, 537 A.2d 439 (1988). “In construing a statute, this court will consider its plain language, its legislative history, its purpose and the circumstances surrounding its enactment.” State v. Parmalee, 197 Conn. 158, 161, 496 A.2d 186 (1985).

General Statutes § 1-1 (a) requires that “[i]n the construction of the statutes, words and phrases shall be construed according to the commonly approved usage of the language; and technical words and phrases, and such as have acquired a peculiar and appropriate meaning in the law, shall be construed and understood accordingly.” If the statutory language is clear and unambiguous, there is no room for construction. New Haven v. United Illuminating Co., 168 Conn. 478, 485, 362 A.2d 785 (1975). If there is no ambiguity in the language of the statute, it does not become ambiguous merely because the parties argue for or would prefer different meanings. Caldor, Inc. v. Heffernan, 183 Conn. 566, 570, 440 A.2d 767 (1981). When language used in a statute is clear and unambiguous, its meaning is not subject to modification or construction. Cilley v. Lamphere, 206 Conn. 6, 9-10, 535 A.2d 1305 (1988). When a statute does not define a term, it is appropriate to look to the common understanding expressed in the law and in dictionaries. Doe v. Manson, 183 Conn. 183, 186, 438 A.2d 859 (1981).

Webster’s Third New International Dictionary defines “foot” as “[t]he terminal part of the vertebrate leg upon which an individual stands consisting in most bipeds (as man) and in many quadrupeds (as the cat) of all the structures (as heel, arches, and digits) below the ankle joint . . . .” The podiatrists argue, however, that the board’s ruling, rather than the dictionary definition, is consistent with the legislative intent underlying the podiatry statutes. We are not so persuaded.

In 1915, the legislature passed the first statute licensing chiropody. Public Acts 1915, c. 229. Prior to that time anyone could practice chiropody in Connecticut. Connecticut Chiropody Society, Inc. v. Murray, 146 Conn. 613, 616, 153 A.2d 412 (1959). The practice of chiropody was not defined, however, until the enactment of § 1188c of the 1935 Cumulative Supplement to the General Statutes. The statutory language adopted in 1935 equated chiropody and podiatry and delineated the areas of practice as follows: diagnosis of foot ailments and the practice of minor surgery on the feet, including all structures of the phalanges but limited to those structures of the foot superficial to the inner layer of the fascia Of the foot; dressing, padding and strapping of the feet; and making of plaster models of the feet and the palliative and mechanical treatment of functional disturbances of the feet as taught and practiced in the schools of chiropody recognized by the examining board. The reference to the teaching and practice in schools of chiropody was eliminated by § 1023e of the 1939 Supplement to the General Statutes. The podiatrists, relying on the testimony of the state health commissioner (commissioner) at a hearing before the Joint Standing Committee on Public Health and Safety, claim that this change was made to authorize the board to define the scope of podiatric practice in Connecticut. Conn. Joint Standing Committee Hearings, Public Health and Safety, 1937 Sess., p. 135. They argue that the fact that the commissioner was instrumental in fashioning the definition lends strong support to the board’s ruling.

We are unconvinced that the assertions of the commissioner are entitled to the weight the podiatrists urge us to accord them. See Hartford Electric Light Co. v. Water Resources Commission, 162 Conn. 89, 291 A.2d 721 (1971). “While relevant to our inquiry, [excerpts from legislative proceedings] are by no means conclusive in determining legislative intent. ... As to occurrences at legislative public hearings, these are not admissible as a means of interpreting a legislative act and may not be considered.” Id., 98. Further, our examination of the statutory scheme as it now exists belies such a conclusion.

A centrifugal professional force tending to expand podiatry may be seen from the early legislative history of the podiatry statutes. For instance, Public Acts 1969, No. 578, amended the pertinent drug statute to allow podiatrists, for the first time, to administer drugs, and Public Acts 1976, No. 76-99, made a major change in the podiatry statutes by eliminating the word “minor” from the surgery on the feet authorized for podiatrists. Presently, the podiatry statutes, General Statutes §§ 20-50 through 20-65, both authorize the practice of podiatry and define its limits. The provisions limiting the scope of podiatry and, thus, tempering the expansion, however, are the predominant theme of the statutes. This is in marked contrast to chapter 370 of the General Statutes, entitled “Medicine and Surgery,” wherein the scope of practice of medicine and surgery is not defined, and chapter 371 concerning osteopathy where no such specific definitions limiting the scope of practice are contained. To the contrary, specific limitations on the practice of podiatry are contained in § 20-50. That the thrust of the podiatry statutes is primarily limiting in nature is made clear by General Statutes § 20-63 which provides that “[n]o person granted a certificate under this chapter shall display or use the title ‘Doctor’ or its synonym without the designation ‘Podiatrist’ and shall not mislead the public as to the limited professional qualifications to treat human ailments.” Further, among the grounds for revocation of a podiatrist’s license or for disciplinary action against a podiatrist, General Statutes § 20-59 (9) includes “undertaking or engaging in any medical practice beyond the privileges and rights accorded to the practitioner of podiatry by the provisions of this chapter . . . .” A final example of such a limitation is the provision in § 20-50, as amended by Public Acts 1976, No. 76-99, authorizing “the practice of surgery upon the feet, provided if an anesthetic other than a local anesthetic is required, such surgery shall be performed in a general hospital accredited by the Joint Commission on Accreditation of Hospitals by a licensed podiatrist who is accredited by the credentials committee of the medical staff of said hospital to perform podiatric surgery in conformance with rules promulgated by the chief of the surgical department of said hospital, taking into account the training, experience, demonstrated competence and judgment of each such licensed podiatrist, and such podiatrist shall comply with such rules . . . .” (Emphasis added.) The subjection of podiatrists to hospital rules is a striking example of a legislative intent to restrain any expansion of the scope of podiatry practice that is not statutorily authorized. We conclude, therefore, that it was not the intention of the legislature to empower the board to define the scope of podiatry practice in Connecticut.

The podiatrists and the board also contend that the term “foot” should be construed according to its technical or anatomical definition, and be understood to include the ankle. We discern no support for this position in either the statute or case law.

All parties, as well as the trial court, cite Rivera v. I. S. Spencer’s Sons, Inc., 154 Conn. 162, 223 A.2d 808 (1966). Rivera involved compensation for disfigurement under the then Workmen’s Compensation Act, General Statutes (Rev. to 1962) § 31-308. We were asked to determine whether the phrase “legs below the knees” in the statute included the foot. We found that, in common usage, the leg sometimes does and sometimes does not include the foot, but concluded that the issue could not be resolved solely on the basis of common usage. Our examination of the legislative history disclosed several amendments expanding the coverage, under the disfigurement provisions, by the enumeration of additional specific portions of the body, consistent with increasing exposure of modern dress. Bearing in mind that a scar on the foot was less likely to be exposed to view than one above the foot but below the knee, we concluded that the foot was not contemplated by the statutory language. Id., 164-66. Rivera is nonetheless inapposite to the present case, since the result in Rivera was compelled by legislative development quite different from that underlying the podiatry statutes.

The podiatrists rely heavily on Finoia v. Winchester Repeating Arms Co., 130 Conn. 381, 385, 34 A.2d 636 (1943), in which we interpreted “hands” as used in a workers’ compensation statute in its common anatomical sense as including the wrist and not the forearm. Finoia, like Rivera, sheds no light on the case before us. In Finoia, the question presented was whether, in the context of an award of compensation for disfigurement, the term “hand” was to be accorded its common meaning or a broader one, suggested by its use in the statutory provisions covering loss of use of a member, to include the forearm. Id., 382-83. Based on the intent we found in the history of the workers’ compensation statutes, we concluded that different legislative purposes were reflected in the loss of use and disfigurement provisions and that application of the broader definition was unwarranted. Id., 383-84. As the podiatrists note, we stated, inFinoia, that “hand,” when used in its common anatomical sense, included the wrist but not the forearm. We can see no basis, however, for translating that statement into a declaration that the legislature intended the foot to include the ankle within the meaning of the podiatry statutes.

The podiatrists also propose that we adopt the Washington Court of Appeals’ reasoning in Jaramillo v. Morris, 50 Wash. App. 822, 750 P.2d 1301, reh. denied, 110 Wash. 2d 1040 (1988). In Jaramillo, a podiatrist was sued for malpractice in ankle surgery. The trial court refused to submit to the state podiatry board the question of whether the ankle surgery was outside the scope of the podiatrist’s license, and held that “[i]t is plain to see from the exhibits and from the affidavits of medical experts that where the leg bones end the foot begins and vice versa.” Id., 829. The Court of Appeals found this refusal to be error, citing the special competence of the board to determine the meaning of the ambiguous term “foot.” In so ruling, the court relied on the doctrine of primary jurisdiction which “does not displace the jurisdiction of a court, but merely allocates power between courts and agencies to make initial determinations; the court normally retains power to make the final decision.” Id., 828. In reaching its conclusion, the Jaramillo court stated that “[t]his is not a case . . . wherein the practitioners of a medical specialty are attempting to expand their license authority beyond statutory bounds.” Id., 831.

We find Jaramillo inapplicable to this case and conclude that the term “foot” should be construed accord ing to its commonly understood meaning. In light of our statutory scheme governing podiatry practice, the construction we give to the term “foot” must not expand the scope of podiatry practice beyond the intent of the legislature. Moreover, § 20-50 expressly authorizes treatment of foot ailments and performance of surgical procedures, other than amputation, on the foot or feet and makes no mention of the ankle, nor has treatment of the ankle been expressly included in the definition of podiatry practice in any of the predecessors to § 20-50. Had the legislature intended to include the ankle in the definition of “foot,” it could easily have done so. “The intent of the legislature, as this court has repeatedly observed, is to be found not in what the legislature meant to say, but in the meaning of what it did say. Frazier v. Manson, 176 Conn. 638, 642, 410 A.2d 475 (1979); Kulis v. Moll, 172 Conn. 104, 110, 374 A.2d 133 (1976); Colli v. Real Estate Commission, 169 Conn. 445, 452, 364 A.2d 167 (1975); United Aircraft Corporation v. Fusari, 163 Conn. 401, 410-11, 311 A.2d 65 (1972). Where there is no ambiguity in the legislative commandment, this court cannot, in the interest of public policy, engraft amendments onto the statutory language.” Burnham v. Administrator, 184 Conn. 317, 325, 439 A.2d 1008 (1981).

We, therefore, conclude that the trial court did not err in sustaining the plaintiffs’ appeal and that it properly relied on common usage and the dictionary definition of “foot” in construing General Statutes § 20-50.

There is no error.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 20-50. podiatry defined, requirements for surgery. Podiatry is defined to be the diagnosis, prevention and treatment of foot ailments including the prescription, administering and dispensing of drugs and controlled substances in schedules II, III, IV or V, in accordance with subsection (d) of section 21a-252, in connection therewith; the practice of surgery upon the feet, provided if an anesthetic other than a local anesthetic is required, such surgery shall be performed in a general hospital accredited by the Joint Commission on Accreditation of Hospitals by a licensed podiatrist who is accredited by the credentials committee of the medical staff of said hospital to perform podiatric surgery in conformance with rules promulgated by the chief of the surgical department of said hospital, taking into account the training, experience, demonstrated competence and judgment of each such licensed podiatrist, and such podiatrist shall comply with such rules; the dressing, padding and strapping of the feet; the making of models of the feet and the palliative and mechanical treatment of functional and structural ailments of the feet, not including the amputation of the leg, foot or toes or the treatment of systemic diseases other than local manifestations in the foot.”

       The memorandum of decision of the board is as follows: “It is the ruling of the Board of Examiners in Podiatry, after reviewing all the testimony, exhibits and supporting statements offered in connection with the hearing held 7 November 1984, that the ankle is part of the foot, and the foot is part of the ankle. The Board further rules that sprains, strains, and positional abnormalities of the ankle constitute ailments of the foot, and that diagnosis and treatment of sprains, strains, and positional abnormalities of the ankle are therefore within the scope of podiatry practice in Connecticut.”

       “[General Statutes] Sec. 4-176. declaratory rulings. Each agency may, in its discretion, issue declaratory rulings as to the applicability of any statutory provision or of any regulation or order of the agency, and each agency shall provide by regulation for the filing and prompt disposition of petitions seeking such rulings. If the agency issues an adverse ruling, the remedy for an aggrieved person shall be an action for declaratory judgment under section 4-175 unless the agency conducted a hearing pursuant to sections 4-177 and 4-178 for the purpose of finding facts as a basis for such ruling, in which case the remedy for an aggrieved person shall be an appeal pursuant to section 4-183. If the agency fails to exercise its discretion to issue such a ruling, such failure shall be deemed a sufficient request by the plaintiff for the purposes of section 4-175. Rulings disposing of petitions have the same status as agency decisions or orders in contested cases.”

       The plaintiff Enzo Sella, M.D., was granted intervenor status and testified at the hearing.

       General Statutes § 4-176 authorizes an appeal, pursuant to General Statutes § 4-183, from a declaratory ruling where, as here, the agency conducted a hearing. Section § 4-183 (a) provides: “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, provided, in case of conflict between this chapter and federal statutes or regulations relating to limitations of periods of time, procedures for filing appeals or jurisdiction or venue of any court or tribunal, such federal provisions shall prevail. A preliminary, procedural or intermediate agency action or ruling is immediately reviewable if review of the final agency decision would not provide an adequate remedy.”

       Public Acts 1971, No. 859, deleted the reference in General Statutes § 20-50 to the “phalanges but limited to those structures of foot superficial to the inner layer of the fascia of the foot,” and substituted “forefoot forward of the tarsal bones, but excluding operations on the bones of the tarsus.” This latter language was excised by Public Acts 1976, No. 76-99. Since then, the statute has contained no language qualifying the term “foot.”

       In its declaratory ruling, the board found that “the ankle and foot are inseparable.” In so finding, the board expressly credited the testimony of Gary P. Jolly, D.P.M., who stated that it is impossible, from a clinical standpoint, to treat the foot as separate from the ankle.


source: Caselaw Access Project

license: Public Domain

text:
    John J. Baker, Jr., et al. v. Sun Refining and Marketing Company

      Lisa M. Lopez, in support of the petition.

      Dominic Fulco III, in opposition.
    Decided April 29, 1988
   The plaintiffs’ petition for certification for appeal from the Appellate Court, 14 Conn. App. 804, is denied.


text:
    Henry O. Briggs v. State Employees Retirement Commission

      Richard T. Sponzo, assistant attorney general, in support of the petition.

      Edward Gallant, in opposition.
    Decided April 29, 1988
   The defendant’s petition for certification for appeal from the Appellate Court, 13 Conn. App. 477, is granted, limited to the following issue: “Did the Appellate Court err in concluding that the state employment 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 a result of any injury received while in the performance of his duty as a state employee’ pursuant to General Statutes Section 5-169 (b)?”


text:
    Burlington Construction Company, Inc. v. R. C. Equipment and Construction, Inc.

      Edward J. Gallagher, in support of the petition.
    Decided April 29, 1988
   The defendant’s petition for certification for appeal from the Appellate Court, 13 Conn. App. 505, is denied.


text:
    Nancy Burton v. Planning Commission of the Town of Redding et al.

      Nancy Burton, pro se, in support of the petition.
    Decided April 29, 1988
   The plaintiff’s amended petition for certification for appeal from the Appellate Court, 13 Conn. App. 400, is granted, limited to the following issue: “Did the Appellate Court err in concluding that the late filing of the appellant’s brief required granting the motion to dismiss?”


text:
    Nancy Burton v. Planning Commission of the Town of Redding et al.

      Nancy Burton, pro se, in support of the petition.

      Michael N. LaVelle and Marylouise S. Black, in opposition.
    Decided April 29, 1988
   The plaintiff’s petition for certification for appeal from the Appellate Court, 13 Conn. App. 400, is denied.


text:
    Double I Limited Partnership v. Town of Glastonbury

      Bruce S. Beck, in support of the petition.

      Sharon H. Purtill and Eric R. Gaynor, in opposition.
    Decided April 29, 1988
   The plaintiff’s petition for certification for appeal from the Appellate Court, 14 Conn. App. 77, is denied.


text:
    Bernard Levy v. Sally Levy

      Robert L. Hirtle, Jr., in support of the petition.

      Michael J. McClary, in opposition.
    Decided April 29, 1988
   The plaintiff’s petition for certification for appeal from the Appellate Court, 14 Conn. App. 801, is denied.


text:
    Gloria Licari et al. v. Donald Blackwelder et al.

      Joseph M. Brophy, in support of the petition.

      Ridgely W. Brown, in opposition.
    Decided April 29, 1988
   The defendants’ petition for certification for appeal from the Appellate Court, 14 Conn. App. 46, is denied.


text:
    Mohamed Omar v. Norton Mezvinsky

      Harold J. Geragosian, in support of the petition.

      William C. Franklin, in opposition.
    Decided April 29, 1988
   The defendant’s petition for certification for appeal from the Appellate Court, 13 Conn. App. 533, is denied.


text:
    Paine Webber Jackson & Curtis, Inc. v. Geoffrey J. Winters

      Alan R. Spirer, in support of the petition.

      John Haven Chapman, in opposition.
    Decided April 29, 1988
   The plaintiff’s petition for certification for appeal from the Appellate Court, 13 Conn. App. 712, is denied.


text:
    State of Connecticut v. Augustus J. Simmons

      Augustus J. Simmons, pro se, in support of the petition.

      Geoffrey E. Marion, deputy assistant state’s attorney, in opposition.
    Decided April 29, 1988
   The defendant’s petition for certification for appeal from the Appellate Court, 14 Conn. App. 803, is dismissed.


text:
    State of Connecticut v. Floyd Simms

      Suzanne Zitser, assistant public defender, in support of the petition.

      Leah Hawley, deputy assistant state’s attorney, in opposition.
    Decided May 5, 1988
   The defendant’s petition for certification for appeal from the Appellate Court, 14 Conn. App. 1, is granted,, limited to the following issue: “Did the Appellate Court correctly conclude that the transcript of Daniel Jones’ Alford plea was admissible as a prior statement inconsistent with the trial testimony in this case?”


text:
    State of Connecticut v. Michael Watkins

      Peter A. Kelly, in support of the petition.

      Judith A. Rossi, deputy assistant state’s attorney, in opposition.
    Decided May 5, 1988
   The defendant’s petition for certification for appeal from the Appellate Court, 14 Conn. App. 67, is denied.


text:
    State of Connecticut v. John T. Robinson

      Joette Katz, public defender, in support of the petition.

      Frederick W. Fawcett, assistant state’s attorney, in opposition.
    Decided May 5, 1988
   The defendant’s petition for certification for appeal from the Appellate Court, 14 Conn. App. 146, is denied.


text:
    State of Connecticut v. Julio Arroyo, Jr.

      Martin Zeldis, assistant public defender, and Joette Katz, public defender, in support of the petition.

      Leah Hawley, deputy assistant state’s attorney, in opposition.
    Decided May 12, 1988
   The defendant’s petition for certification for appeal from the Appellate Court, 13 Conn. App. 687, is denied.


text:
    Norman Dorsen et al. v. Stuart Andrew Kay

      Steven A. Wise, in support of the petition.

      Catherine G. Roraback, in opposition.
    Decided May 12, 1988
   The defendant’s petition for certification for appeal from the Appellate Court, 13 Conn. App. 645, is denied.


text:
    Dennis E. Neumann v. Zoning Board of Appeals of the Borough of Stonington

      Eugene C. Cushman, in support of the petition.

      Susan G. Nelson, in opposition.
    Decided May 12, 1988
   The plaintiffs petition for certification for appeal from the Appellate Court, 14 Conn. App. 55, is denied.


text:
    Donald Jepsen v. Julia S. Macri et al.

      JuliaS. Maori, pro se, and George R. Maori, pro se, in support of the petition.

      Andrew G. Messina, Jr., in opposition.
    Decided May 12, 1988
   The defendants’ petition for certification for appeal from the Appellate Court, 14 Conn. App. 803, is dismissed.


text:
    Triton Associates v. Six New Corporation et al.

      Beverly M. Krieger, in support of the petition.

      Geoffrey S. Brandner, in opposition.
    Decided May 24, 1988
   The named defendant’s petition for certification for appeal from the Appellate Court, 14 Conn. App. 172, is denied.


text:
    Donald W. Utz v. Warden, Connecticut Correctional Institution, Somers

      Donald W. Utz, pro se, in support of the petition.
    Decided May 24, 1988
   The plaintiffs petition for certification for appeal from the Appellate Court is dismissed.


text:
    Reed Patterson v. Szabo Food Service of New York, Inc.

      Jeremy G. Zimmermann, in support of the petition.

      Eugene A. Cooney, in opposition.
    Decided May 24, 1988
   The plaintiffs’ petition for certification for appeal from the Appellate Court, 14 Conn. App. 178, is denied.


text:
    State of Connecticut v. James Leonard
    William T. Gerace, in support of the petition.

      Harry Weller, deputy assistant state’s attorney, in opposition.
    Decided May 24, 1988
   The defendant’s petition for certification for appeal from the Appellate Court, 14 Conn. App. 134, is granted, limited to the issue: “Did the Appellate Court err in sustaining the conclusion of the trial court at the hearing on the motion to suppress that there was sufficient evidence of probable cause under our federal and state constitutions to justify the police in making a warrantless search of the vehicle in which the defendant was a passenger and in arresting him as a result of that search?”


text:
    Michael Fazio et al. v. Carrie Brown et al.

      Theodore R. Tyma, in support of the petition.

      Salvatore C. DePiano, in opposition.
    Decided May 24, 1988
   The defendants’ petition for certification for appeal from the Appellate Court, 14 Conn. App. 289, is granted, limited to the issue: “Did the Appellate Court err in sustaining the trial court’s decision to set aside the verdict and, having done so, did the Appellate Court err in concluding that the trial court properly limited the issue on further proceedings to a hearing in damages?”


text:
    William C. Lyon v. Adgraphics, Inc., et al.

      Lloyd L. Langhammer, in support of the petition.

      Wesley W. Horton, in opposition.
    Decided May 24, 1988
   The plaintiff’s petition for certification for appeal from the Appellate Court, 14 Conn. App. 252, is denied.


text:
    Mediplex Construction Company of Connecticut, Inc. v. Clifford Williams, Sr., d.b.a. Williams Construction Company

      Mary E. Holzworth, in support of the petition.

      Andrew J. Pinkes, in opposition.
    Decided June 3, 1988
   The defendant’s petition for certification for appeal from the Appellate Court is denied.


text:
    State of Connecticut v. Joseph N. Tulli

      Michael Graham, in support of the petition.
    Decided June 3, 1988
   The defendant’s petition for certification for appeal from the Appellate Court, 14 Conn. App. 356, is denied.


text:
    Jay F. Clark v. Benjamin A. Muzio, Commissioner of Department of Motor Vehicles

      Aaron P. Slitt, in support of the petition.

      Carl J. Schuman, assistant attorney general, in opposition.
    Decided June 3, 1988
   The plaintiff’s petition for certification for appeal from the Appellate Court, 14 Conn. App. 212, is denied.


text:
    Carol A. Sunbury v. Donald C. Sunbury

      Albert G. Vasko, in support of the petition.

      Sherman M. Tonkonow, in opposition.
    Decided June 3, 1988
   The plaintiff’s petition for certification for appeal from the Appellate Court, 13 Conn. App. 651, is granted, limited to the issue: “Having found error in the trial court’s calculation of the defendant’s net income, did the Appellate Court err in limiting the issue on remand to a reconsideration of periodic alimony?”


text:
    In re Steven G.

      Shelley White, in support of the petition.
    Decided June 3, 1988
   The respondent’s petition for certification for appeal from the Appellate Court, 14 Conn. App. 205, is granted, limited to the issue: “In juvenile delinquency proceedings, what standard governs the authority of the state, after the commencement of trial, to amend the petition to include additional charges?”


text:
    Francis Vigneri v. Deborah L. Zura et al.

      Patrick Tomasiewicz, in support of the petition.

      Richard S. Cramer, in opposition.
    Decided June 3, 1988
   The defendants’ petition for certification for appeal from the Appellate Court, 14 Conn. App. 812, is denied.


text:
    George W. Stiepel v. Philip R. Cone, Jr.

      James E. Mattem, in support of the petition.
    Decided June 22, 1988
   The defendant’s petition for certification for appeal from the Appellate Court, 14 Conn. App. 815, is denied.


text:
    J. M. Rosa Construction Company, Inc. v. The Connecticut Water Company, Inc.

      Mark E. Blakeman, in support of the petition.

      Stefan Underbill, in opposition.
    Decided June 22, 1988
   The plaintiff’s petition for certification for appeal from the Appellate Court, 14 Conn. App. 822, is denied.


text:
    State of Connecticut v. James Servello

      Joseph G. Bruckmann, assistant public defender, in support of the petition.

      MitchellS. Brody, deputy assistant state’s attorney, in opposition.
    Decided June 22, 1988
   The defendant’s petition for certification for appeal from the Appellate Court, 14 Conn. App. 88, is denied.


text:
    Park City Hospital v. Connecticut Commission on Hospitals and Health Care et al.

      Sigmund L. Miller, in support of the petition.

      Paul J. Lahey, assistant attorney general, and Arnold Sbarge, in opposition.
    Decided June 22, 1988
   The plaintiff’s petition for certification for appeal from the Appellate Court, 14 Conn. App. 413, is granted, limited to the issue: “Did the Appellate Court err in affirming the trial court’s suo motu dismissal of the plaintiff’s appeal for lack of aggrievement as an incident to the plaintiff’s application for a stay of execution?”


text:
    State of Connecticut v. Dana R. Tracy

      Brian M. O’Connell, in support of the petition.
    Decided June 28, 1988
   The defendant’s petition for certification for appeal from the Appellate Court, 14 Conn. App. 451, is denied.


text:
    Ginger Caccavale v. Hospital of St. Raphael et al.

      Peter A. Kelly, in support of the petition.

      Garie J. Mulcahey and Robert J. Cooney, in opposition.
    Decided June 28, 1988
   The plaintiffs petition for certification for appeal from the Appellate Court, 14 Conn. App. 504, is denied.


text:
    State of Connecticut v. Enrique C. Gonzalez

      Robert P. Dutcher, in support of the petition.

      Susann E. Gill, assistant state’s attorney, in opposition.
    Decided June 28, 1988
   The defendant’s petition for certification for appeal from the Appellate Court, 14 Conn. App. 216, is granted, limited to the issue: “Did the Appellate Court erroneously conclude (1) that General Statutes (Rev. to 1985) § 14-227a (b) provides that one commits the offense of driving while impaired only when one’s blood alcohol ratio falls between .07 and .10 percent, and (2) that driving while impaired is not a lesser included offense of driving while under the influence?”


text:
    State of Connecticut v. Vincent Morico

      Michael J. McClary, in support of the petition.
    Decided July 8, 1988
   The defendant’s petition for certification for appeal from the Appellate Court, 14 Conn. App. 140, is denied.


text:
    Jeffrey Daniels v. State of Connecticut

      Edward J. Gallagher, in support of the petition.

      Christopher Malany, deputy assistant state’s attorney, in opposition.
    Decided July 8, 1988
   The plaintiff’s petition for certification for appeal from the Appellate Court is denied.


text:
    Rose Lerman v. Jack Levine et al.

      Edward J. Gallagher, in support of the petition.

      Thomas W. Beecher, in opposition.
    Decided July 8, 1988
   The defendants’ petition for certification for appeal from the Appellate Court, 14 Conn. App. 402, is denied.


text:
    State of Connecticut v. William Rado, Sr.

      Timothy C. Moynahan, in support of the petition.

      Christopher Malany, deputy assistant state’s attorney, in opposition.
    Decided July 8, 1988
   The defendant’s petition for certification for appeal from the Appellate Court, 14 Conn. App. 322, is denied.


text:
    State of Connecticut v. Michael Patterson

      Vincent J. Dooley, deputy assistant state’s attorney, in support of the petition.
    Decided July 8, 1988
   The plaintiff’s petition for certification for appeal from the Appellate Court, 14 Conn. App. 159, is denied.


text:
    Roslyn Klein Curtiss v. Estate of Aaron Kaufman

      Joel M. Ellis, in support of the petition.

      Richard K. Snyder, in opposition.
    Decided July 8, 1988
   The plaintiffs petition for certification for appeal from the Appellate Court, 14 Conn. App. 811, is denied.


text:
    State of Connecticut v. Douglas Leon Perry

      Stephen F. Cashman, special public defender, in support of the petition.

      Vincent J. Dooley, deputy assistant state’s attorney, in opposition.
    Decided July 8, 1988
   The defendant’s petition for certification for appeal from the Appellate Court, 14 Conn. App. 526, is denied.


text:
    Monika Fischer v. Robert P. Goldstein

      Robert P. Goldstein, pro se, in support of the petition.
    Decided July 8, 1988
   The defendant’s petition for certification for appeal from the Appellate Court, 14 Conn. App. 487, is denied.


text:
    Albert Damelio v. Anaconda, Inc., et al.

      Edward T. Dodd, Jr., in support of the petition.
    Decided July 8, 1988
   The plaintiff’s petition for certification for appeal from the Appellate Court, 15 Conn. App. 805, is denied.


text:
    Theodore Kraus v. Irene Newton

      Herbert Watstein, in support of the petition.

      F. Patrick O’Sullivan, in opposition.
    Decided July 13, 1988
   The plaintiffs petition for certification for appeal from the Appellate Court, 14 Conn. App. 561, is granted, limited to the issue: “Did the court err in (1) refusing to mark the defendant’s statement for identification; (2) charging the jury that a landowner, without violating his/her duty to exercise reasonable care, or the safety of invitees, may, in all events, await the end of a winter storm before clearing or protecting walks and steps?”


text:
    Covenant Home, Inc. v. Board of Tax Review of the Town of Cromwell

      Edward T. Lynch, in support of the petition.

      Richard W. Tome, in opposition.
    Decided July 26, 1988
   The plaintiff’s petition for certification for appeal from the Appellate Court, 14 Conn. App. 441, is denied.


text:
    State of Connecticut v. Bryant Coleman

      James J. Ruane, in support of the petition.
    Decided July 26, 1988
   The defendant’s petition for certification for appeal from the Appellate Court, 14 Conn. App. 657, is denied.


text:
    John Franklin v. Robert Berger et al.

      Carl J. Schuman, assistant attorney general, in support of the petition.

      Miriam Berkman, in opposition.
    Decided July 26, 1988
   The defendant’s petition for certification for appeal from the Appellate Court, 15 Conn. App. 74, is granted, limited to the issue: “Did the state violate the guarantees of equal protection contained in the Connecticut and the United States constitutions by declining to credit pretrial jail time against the length of an insanity acquittee’s commitment to a mental hospital?”


text:
    State of Connecticut v. Herbert Brown

      William Holden, public defender, in support of the petition.

      C. Robert Satti, Jr., assistant state’s attorney, in opposition.
    Decided July 26, 1988
   The defendant’s petition for certification for appeal from the Appellate Court, 14 Conn. App. 605, is denied.


author: Callahan, J.

text:
    State of Connecticut v. Edward L. Reagan
    (13262)
    Peteks, C. J., Healey, Shea, Callahan, and Santaniello, Js.
    Argued May 6
    decision released August 30, 1988

      M. Hatcher Norris, for the appellant (defendant).

      Carolyn K. Longstreth, deputy assistant state’s attorney, for the appellee (state).
   Callahan, J.

The sole issue certified for review by this court from the decision of the Appellate Court in State v. Reagan, 11 Conn. App. 540, 528 A.2d 846 (1987), is: “Did the Appellate Court err in concluding from the transcript that the defendant’s wife had consented to the officers’ entry into his bedroom when the trial court had found that she had attempted to block their entry into that room?”

Prior to trial, the defendant moved to suppress, as the fruit of an illegal arrest and an unlawful search, “any and all tangible and intangible evidence . . . which may have been obtained either during or as a result of any such search and seizure. . . .” The trial court, Kline, J., denied the motion to suppress and ruled that “[bjased on the totality of the circumstances, I think there is probable cause for the police to make that very determination that there are exigent circumstances, that they were to go on the man’s premises to make a warrantless arrest.” On appeal, the Appellate Court affirmed the trial court’s denial of the defendant’s motion to suppress not on exigent circumstance grounds but because it found that the defendant’s wife had consented to the entry of the police into the defendant’ s house and bedroom. State v. Reagan, supra, 546-47. The Appellate Court also found that the plain view observations made by the police subsequent to their consensual entry were “justified.” Id., 547. In light of these findings, the Appellate Court concluded that there was a valid consensual entry and refused to address the issues of whether the warrantless seizure of evidence was justified by either exigent circumstances or the inevitable discovery doctrine, calling them merely “alternate grounds presented.” Id., 548. We find error.

We need not repeat the entire factual scenario set forth at length in the Appellate Court opinion. Id., 541-43. Briefly, the undisputed facts relevant to the issue certified for review are as follows: On May 24, 1985, based on information provided by a neighbor of the defendant, the Connecticut state police began a surveillance operation of the defendant’s home located onPettee Street in Lakeville. The same day, two of the surveilling officers observed what they believed to be a drug deal occurring between the defendant and David Earl Jones. As Jones departed the defendant’s home, the officers radioed their superior, Sergeant Brian Acker, who was in an unmarked car at the corner of Pettee Street and Route 44, and informed him of what they had just observed. Subsequently, Jones drove past Acker and pulled into a gas station on Route 44 just opposite Pettee Street. Apprehensive that Jones would transfer what they then suspected to be narcotics to a person at the gas station or destroy them, Acker and Detective James Caputo arrested Jones.

On the basis of the items recovered and information received from Jones, and concerned that people who had observed Jones’ arrest would tip off the defendant, Acker decided to return to the defendant’s home and attempt to gain access. In pursuit of this goal, Acker, accompanied by Detective John Merullo, knocked on the back door of the defendant’s house. The defendant’s wife answered the door and, without identifying themselves, the officers, who were in plainclothes, asked if “Ed” was there. The defendant’s wife “responded” and Acker entered the house, went through four rooms and followed her up a stairway to a “foyer” on the second floor. There the defendant’s wife positioned herself in front of Acker, making it difficult for him to pass. At that point, Acker “kind of pushed [his] way by gently and went into [the defendant’s] bedroom.” Upon entering, he found the defendant in the room and observed a white powdery substance in a bowl on a small table near the defendant. He then placed the defendant under arrest, seized a check drawn on the Jones Automotive account for $120 that was made payable to cash and transported the defendant to the state police barracks. Thereafter, the remaining occupants of the house were assembled in a room on the first floor and detained until the arrival of a search warrant.

Prior to trial, the defendant moved to suppress the evidence seized when he was arrested as the fruit of an illegal arrest and an unlawful search and seizure of his person, home and curtilage. During the suppression hearing, the state, as well as the defendant, focused their attention on “exigent circumstances” as the sole justification for the warrantless entry of the defendant’s house, the arrest of the defendant, and the subsequent seizure of evidence. In denying the defendant’s motion to suppress, the trial court specifically found that “exigent circumstances” justified the warrantless entry. The trial court did not mention “consent” in any context in summarizing the evidence or in ruling on the defendant’s motion.

After the defendant’s motion to suppress was denied, he entered conditional pleas of nolo contendere pursuant to General Statutes § 54-94a to violations of General Statutes §§ 21a-279 (a) and 21a-277 (a). The trial court accepted the defendant’s pleas and subsequently-sentenced him to a five year term of imprisonment suspended after three years. The defendant appealed to the Appellate Court. In that appeal the defendant addressed the litigated issue of whether exigent circumstances justified his warrantless arrest in his home. Apparently anticipating claims by the state that consent and inevitable discovery were alternative grounds on which the decision of the trial court denying the suppression of the seized evidence could be upheld, he also briefed those issues.

In its opinion the Appellate Court found that the police had obtained a voluntary consent to enter the defendant’s home from the defendant’s wife; State v. Reagan, supra, 546; that the police had not exceeded the scope of the consent; id., 547; and there had not been a clear withdrawal of the consent. Id. In light of these findings, the Appellate Court refused to reach the issues of exigent circumstances and inevitable discovery. Id., 548. Thereupon, based not on exigent circumstances but on the consent of the defendant’s wife to the entry of the home and bedroom, the Appellate Court affirmed the judgment of the trial court. The defendant then petitioned this court for certification. As indicated earlier, certification was granted limited to the following question: “Did the Appellate Court err in concluding from the transcript that the defendant’s wife had consented to the officers' entry into his bedroom when the trial court had found that she had attempted to block their entry into that room?” In this court, the defendant argued that the Appellate Court erred in upholding the decision of the trial court on the basis of a consensual entry because the issue of consent had not been raised at the suppression hearing, the state had not established that consent to enter the home or bedroom had been voluntarily given, and the record was insufficient to support such a factual finding. We agree that the record is insufficient to support an appellate finding of consent.

It is axiomatic that “[a] warrantless search [or entry into one’s home] is not unreasonable under either the fourth amendment to the constitution of the United States or article first, § 7, of the constitution of Connecticut if a person with authority to do so has freely consented .... Schneckloth v. Bustamonte, 412 U.S. 218, 248, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973); Dotson v. Warden, 175 Conn. 614, 618, 402 A.2d 790 (1978). The state bears the burden of proving that the consent was free and voluntary and that the person who purported to consent had the authority to do so. Bumper v. North Carolina, 391 U.S. 543, 548, 88 S. Ct. 1788, 20 L. Ed. 2d 797 (1968) [on appeal after remand, 5 N.C. App. 528, 169 S.E.2d 65, aff'd, 275 N.C. 670, 170 S.E.2d 457 (1969)]; Dotson v. Warden, supra, 618-19. . . . ‘The question whether consent to a search has in fact been freely and voluntarily given, or was the product of coercion, express or implied, is “a question of fact to be determined from the totality of all the circumstances.” [Emphasis added.] Schneckloth v. Bustamonte, supra, 227. As a question of fact, it is normally to be decided by the trial court upon the evidence before that court together with the reasonable inferences to be drawn from that evidence.’ Dotson v. Warden, supra, 619; see also State v. Zindros, 189 Conn. 228, 238, 456 A.2d 288 (1983) [cert. denied, 465 U.S. 1012, 104 S. Ct. 1014, 79 L. Ed. 2d 244 (1984)].” State v. Jones, 193 Conn. 70, 78-79, 475 A.2d 1087 (1984); see also State v. Cates, 202 Conn. 615, 620-21, 522 A.2d 788 (1987); State v. Reddick, 189 Conn. 461, 468-69, 456 A.2d 1191 (1983). “Absent consent or exigent circumstances, a private home may not be entered to conduct a search or effect an arrest without a warrant. Steagald v. United States, 451 U.S. 204 [101 S. Ct. 1642, 68 L. Ed. 2d 38] (1981); Payton v. New York, 445 U.S. 573 [100 S. Ct. 1371, 63 L. Ed. 2d 639] (1980); Johnson v. United States, 333 U.S. 10 [68 S. Ct. 367, 92 L. Ed. 436] (1948).” Donovan v. Dewey, 452 U.S. 594, 598 n.6, 101 S. Ct. 2535, 69 L. Ed. 2d 262 (1981). After a careful review of the record before this court, we determine that the Appellate Court erred in coming to its own factual conclusion that the defendant’s wife had consented to the entry by the police into the defendant’s bedroom.

Ordinarily it is not the function of this court or the Appellate Court to make factual findings, but rather to decide whether the decision of the trial court was clearly erroneous in light of the evidence and pleadings in the whole record. Practice Book § 4061; Leo v. Leo, 197 Conn. 1, 4-5, 495 A.2d 704 (1985); Gallo v. Gallo, 184 Conn. 36, 38, 440 A.2d 782 (1981); Public Works Supply Co. v. Eveready Machinery Co., 11 Conn. App. 79, 79-80, 525 A.2d 988 (1987). Conclusions of fact may be drawn on appeal only where “the subordinate facts found [by the trial court] make such a conelusion inevitable as a matter of law”; Papcun v. Papcun, 181 Conn. 618, 621, 436 A.2d 282 (1980), citing Bozzi v. Bozzi, 177 Conn. 232, 240, 413 A.2d 834 (1979); State v. Hanna, 150 Conn. 457, 471, 191 A.2d 124 (1963); or where the undisputed facts or uncontroverted evidence and testimony in the record make the factual conclusion so obvious as to be inherent in the trial court’s decision. See State v. Copeland, 205 Conn. 201, 208 n.3, 530 A.2d 603 (1987); State v. Cates, supra, 620. The limited record relevant to consent, which was before the Appellate Court and is before this court, is neither uncontroverted nor sufficiently clear to warrant a factual finding by a reviewing court that any consent to the initial entry into the defendant’s home encompassed Acker’s passage through four rooms on the first floor, up a stairway, and his subsequent entry into the defendant’s second floor bedroom, or a finding that actions of the defendant’s wife at the top of the stairs did not constitute a withdrawal of any initial consent.

We note that the three interrelated issues concerning consent, i.e., the initial entry, the permissible scope thereof and the withdrawal, upon which the Appellate Court ruled were never in contention or argued during the two day suppression hearing, and were never ruled upon by the trial court. It is clear from the trial court’s ruling that its findings were limited to its ultimate conclusion that “exigent circumstances” justified the warrantless entry into the defendant’s home and the defendant’s subsequent arrest. In fact, in an articulation filed by the trial court subsequent to the release of the Appellate Court’s decision, the trial court specifically stated that the conduct of the defendant’s wife in the “foyer” at the top of the stairs, was addressed only “with reference to the exigent circumstances as the officers were on their way to make an arrest based upon a speedy information and that there was a danger of the evidence being destroyed.” Further, the state has acknowledged that the focus of the parties’ attention during the suppression hearing was restricted to the issue of exigent circumstances, and that the consent issue was raised for the first time in the Appellate Court.

It is against this backdrop that we turn to a review of the record to determine whether the undisputed subordinate facts in the record made the factual conclusion of consent by the Appellate Court so obvious and inevitable that it may stand. We conclude that they do not.

The only testimony potentially relevant to the issue of consent was that of Acker and that encompassed only two pages of the 241 page transcript of the suppression hearing. Acker testified that, when he and Merullo knocked on the back door of the defendant’s home, the defendant’s wife answered and merely “responded” to his question of whether “Ed” was there. He failed to testify as to the manner in which the defendant’s wife responded or the content of her response. Acker then testified that, after the defendant’s wife “responded,” he entered the residence at her invitation, and proceeded to walk through a remodeled room, the kitchen, a dining room area, the living room, and then followed her up the stairs to a “foyer” on the second floor. While it appears from Acker’s testimony that the defendant’s wife may have consented to Acker’s entry into the residence, there is insufficient evidence to indicate that her invitation extended to the four rooms on the first floor that Acker traversed, let alone the stairway to the second floor and the defendant’s bedroom. In fact, the record of Acker’s testimony is totally silent with regard to the parameters of the initial consent. Further, although Merullo also testified at the suppression hearing, the state did not elicit any testimony from him regarding the circumstances surrounding Acker’s entry into the defendant’s home, thus failing to corroborate the existence or the extent of the alleged invitation to enter by the defendant’s wife.

On the present state of the record, we cannot find, nor could the Appellate Court have found, that, as a matter of law, the state affirmatively established that the defendant’s wife consented to Acker’s entry into and through the four first floor rooms, his ascension of the stairway to the second floor and his subsequent entry into the defendant’s bedroom. An invitation to enter one’s home does not necessarily imply an invitation or consent to enter all areas of that home. See People v. Brown, 162 Ill. App. 3d 528, 538, 515 N.E.2d 1285, appeal denied, 119 Ill. 2d 561, 522 N.E.2d 1248 (1987); Lance v. State, 425 N.E.2d 77, 80 (Ind. 1981); State v. Drouhard, 31 Or. App. 1083, 1086, 572 P.2d 331 (1977); State v. Monahan, 76 Wis. 2d 387, 394, 251 N.W.2d 421 (1977). “When the police are relying upon consent as the basis for their warrantless search, they have no more authority than they have been given by the consent. It is thus important to take account of any express or implied limitations or qualifications attending that consent which establish the permissible scope of the search in terms of such matters as time, duration, area, or intensity.” 3 W. LaFave, Search and Seizure (2d Ed.) § 8.1 (c), p. 160. The state bears the burden affirmatively to establish that consent was voluntary; State v. Jones, supra, 78; Dotson v. Warden, supra, 619; and the consent shall not be lightly inferred. See United States v. Impink, 728 F.2d 1228, 1232 (9th Cir. 1984); 68 Am. Jur. 2d 699, Search and Seizures § 46. Accordingly, we conclude that the Appellate Court erred in making an affirmative factual finding that Acker did not exceed the scope of any initial consent when he reached and ascended the stairway to the second floor and entered the defendant’s bedroom.

The Appellate Court also found as a fact that the defendant’s wife’s positioning herself at the top of the stairs and making it difficult for Acker to pass did not amount to a withdrawal of her consent. In light of Acker’s testimony on this issue, which the state concedes could reasonably be construed in a variety of ways, including a withdrawal of consent, we find that the Appellate Court erred in arriving at a factual conclusion that was not, as a matter of law, warranted by the record.

A consent to enter or to search, once given, can be withdrawn or limited at any time prior to the completion of the search; United States v. Dyer, 784 F.2d 812, 816 (7th Cir. 1986); Mason v. Pulliam, 557 F.2d 426, 428-29 (5th Cir. 1977); 3 W. LaFave, supra, § 8.1 (c), pp. 172-73; by some verbal or physical act indicating that the consent has been withdrawn. State v. Wargih, 418 So. 2d 1261, 1263 (Fla. 1982). Acker testified that, upon reaching the “foyer” at the top of the stairs, the defendant’s wife “positioned herself where it would make it difficult for [him] to get by.” He further testified that in order to enter the defendant’s bedroom he had to “kind of [push his] way by [the defendant’s wife] gently . . . .” Such testimony, at the very least, raises a factual issue as to whether the defendant’s wife intentionally positioned herself in order to block Acker’s way and thereby withdrew or limited any consent she may previously have given. Without additional evidence or additional findings of subordinate facts by the trial court, we conclude that the Appellate Court erred in arriving at the factual conclusion that the defendant’s wife did not withdraw or limit any consent she may have given to the entry of the Reagan home.

It is not particularly surprising that the subordinate facts relating to consent were never so definitively established as to allow a factual finding of consent by the Appellate Court, because consent was never raised by either party at the suppression hearing and the trial court specifically limited its findings to the litigated issue of exigent circumstances. On the record before it, the Appellate Court “should not simply have made factual findings [concerning consent] on its own.” Icicle Seafoods, Inc. v. Worthington, 475 U.S. 709, 714, 106 S. Ct. 1527, 89 L. Ed. 2d 739 (1986). Accordingly, we reverse the judgment of the Appellate Court and remand the case to that court for a determination of whether the trial court erred in finding the existence of exigent circumstances to justify the warrantless entry into the defendant’s home and his subsequent arrest. In addition, should the Appellate Court find error on that issue on remand, we order that the case be remanded to the trial court with direction to conduct further evidentiary hearings to determine whether the defendant’s wife consented to Acker’s entry into the defendant’s home and second floor bedroom, and if there was consent, whether it was withdrawn.

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

In this opinion the other justices concurred.

       Sergeant Benjamin Pagoni and Detective John Merullo observed David Earl Jones drive up to the defendant’s house, get out of his car and enter the house. Approximately five to ten minutes later, the defendant and Jones exited the house. The officers then observed Jones hand the defendant a slip of paper which appeared to be a check and then the defendant handed Jones a small packet.

       The only access to Pettee Street was from Route 44 because Pettee Street is a dead-end street.

       In that interim, Acker sent Pagoni and Caputo to state police barracks B to book Jones and to obtain a search warrant for the defendant’s home.

       The record is silent with regard to Merullo’s actions after the defendant’s wife answered the door. It appears from Acker’s testimony that he alone entered the defendant’s home. The only thing that Merullo’s testimony reveals is that he was present when the defendant was arrested. Merullo gave no testimony regarding the circumstances surrounding the initial entry into the defendant’s home.

       General Statutes § 54-94a provides: “conditional nolo contendere PLEA. APPEAL OF DENIAL OF MOTION TO SUPPRESS OR DISMISS. When a defendant, prior to the commencement of trial, enters a plea of nolo contendere conditional on the right to take an appeal from the court’s denial of the defendant’s motion to suppress evidence based on an unreasonable search or seizure or motion to dismiss, the defendant after the imposition of sentence may file an appeal within the time prescribed by law. The issue to be considered in such an appeal shall be limited to whether it was proper for the court to have denied the motion to suppress or the motion to dismiss. A plea of nolo contendere by a defendant under this section shall not constitute a waiver by the defendant of nonjurisdictional defects in the criminal prosecution.”

       General Statutes § 21a-279 (a) provides: “(Formerly Sec. 19-481). penalty FOR ILLEGAL POSSESSION. SUBSTITUTION OF MEDICAL TREATMENT for criminal sanctions, (a) Any person who possesses or has under his control any quantity of any narcotic substance, except as authorized in this chapter, for a first offense, may be imprisoned not more than seven years or be fined not more than fifty thousand dollars, or be both fined and imprisoned; and for a second offense, may be imprisoned not more than fifteen years, or be fined not more than one hundred thousand dollars, or be both fined and imprisoned; and for any subsequent offense, may be imprisoned not more than twenty-five years, or be fined not more than two hundred fifty thousand dollars, or be both fined and imprisoned.”
      General Statutes § 21a-277 (a) provides: “(Formerly Sec. 19-480). penalty FOR ILLEGAL MANUFACTURE, DISTRIBUTION, SALE, PRESCRIPTION, DISPENSING. (a) Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any controlled substance which is a hallucinogenic substance other than marihuana, or a narcotic substance, except as authorized in this chapter, for a first offense, shall be imprisoned not more than fifteen years and may be fined not more than fifty thousand dollars or be both fined and imprisoned and for each subsequent offense, shall be imprisoned not more than thirty years and may be fined not more than one hundred thousand dollars, or be both fined and imprisoned.”

       The information had also charged the defendant with conspiracy to sell narcotic substances in violation of General Statutes §§ 53a-48 and 21a-277 (a). Upon the defendant’s having entered nolo contendere pleas to the first two counts, the state nolled the conspiracy charge.

       The trial court’s discussion of the initial entry during its ruling on the motion to suppress indicates a degree of skepticism or uncertainty regarding the initial entry and the existence of an invitation. The trial court stated: “Mrs. Reagan evidently let them in.” While the trial court goes on to quote the defendant’s wife as saying “Come on in,” this quote is not found anywhere in the record. For the purposes of our discussion of the issue certified for review, we will assume that Acker’s initial entry into the defendant’s home was pursuant to the invitation of the defendant’s wife and, therefore, based on a valid consent. It must be noted that this is not a finding by this court nor an acquiescence in the Appellate Court’s finding on this issue. Should the matter ultimately be remanded to the trial court for further evidentiary hearings regarding the initial consent, our assumption shall not be deemed a finding on the issue.

       Subsequent to the publishing of the Appellate Court’s decision in this matter, the state filed a motion for articulation seeking to have the trial court articulate the following issues: “(1) Was this court’s statement that ‘it wasn’t until they got to the bedroom that [Mrs. Reagan] tried to block [the officers’] entrance’ a finding of a subordinate fact, a conclusion of fact— that is, one based on subordinate facts—or a conclusion of law?”; and (2) “Was the statement made with reference to the issue of exigent circumstances or the issue of whether the initial consent to enter was withdrawn?”

       The relevant portion of Sergeant Brian Acker’s testimony encompassed the following:
      “Q. Now, you said you went to the Reagan residence?
      “A. I did.
      “Q. And who was with you?
      “A. Agent Merullo.
      “Q. What did you do when you got to the residence?
      “A. We parked the car in front of the neighbor’s house and we walked to what I would call a back door. I knocked on the back door. A woman inside came part way towards the door. WTien I saw her I asked her if Ed was there.
      “Q. And did she respond?
      “A. She did.
      “Q. And what did you do?
      “A. I entered the residence.
      “Q. Did she at any time ever deny you entrance to the residence?
      “A. She did not. In fact, she invited me in.
      “Q. Now, at this time when you entered the residence, did you have any weapons displayed?
      “A. No.
      “Q. What did you do when you got inside the residence?
      “A. I walked through a room that appeared to be remodeled, walked through that room, through the kitchen into a dining room area. At this point I took a left through the living room. At a point in the living room I said to an elderly lady, I said, ‘Hello.’ I followed the woman who had first answered the door up the stairs to the second floor.
      “Q. Was she leading you or were you leading her?
      “A. No. She was leading me and we entered the second floor level and go into, I would describe it like a foyer, it was larger than a hallway and it had a number of bookshelves and books in that foyer.
      “Q. And what did you do at that point?

        “A. At that particular time the woman who had invited me in initially positioned herself where it would make it difficult for me to get by. I had observed the woman in the bedroom which was at the end of this foyer. At that point I just worked, kind of pushed my way by gently and went into that bedroom.
      “Q. Now, did you ever identify yourself as a police officer?
      “A. No, I did not. Not prior to this.
      “Q. As you were entering the house, did you ever advise anyone that you were a police officer?
      “A. No, I did not.
      “Q. Did you ever advise anyone that you were there to arrest the Defendant?
      “A. No, I did not.
      “Q. And why was that?
      “A. If you enter the door on the first floor and you are to identify yourself as a police officer, if you are there to say you are there to arrest an individual and that individual is on the second floor, all one would have to do is yell upstairs and warn him and evidence would be destroyed.
      “Q. Now, you stated that you pushed gently by the woman?
      “A. That’s right.
      “Q. And what did you do at that point?
      “A. Entered the bedroom.
      “Q. And what did you do when you got in the bedroom?
      “A. When I entered the bedroom, I said, ‘Mr. Reagan.’ He had his back to me. I identified myself as a police officer, told him not to move and placed him under arrrest.
      “Q. And do you see that individual here in the Courtroom that you placed under arrest?
      “A. Yes.”

       During its oral ruling on the motion to suppress, the trial court initially stated that the defendant’s wife “blocked” Acker’s entrance into the defendant’s bedroom upon reaching the top of the stairs. Subsequently, in its articulation dated March 15, 1988, the court indicates that the use of the term “blocked” was a misstatement of the facts and that the transcript indicates that the defendant’s wife “positioned herself where it would make it difficult for [the officer] to get by.”


text:
    Ana Garcia et al. v. Brooks Street Associates et al.
    (13338)
    Peters, C. J., Healey, Shea, Callahan, Glass, Covello and Hull, Js.

      Argued June 3
    decision released August 30, 1988

      Diana A. Johnston, with whom, on the brief, was John M. Boesen, for the appellant (plaintiff Carol Steinberg).

      Matthew B. Woods, with whom, on the brief, was Philip Baroff, for the appellees (defendants).

      William R. Breetz, with whom, on the brief, was Matthew J. Brady, for the amicus curiae (National Conference of Commissioners of Uniform State Laws).

      Joseph I. Lieberman, attorney general, and Paul K. Pernerewski, assistant attorney general, filed a brief for the department of housing as amicus curiae.
   Callahan, J.

The plaintiff Carol Steinberg has filed this appeal from an order of the Superior Court granting the defendants’ motions to discharge two notices of lis pendens filed by the plaintiffs against real estate owned by the defendants at 672-704 and 720-738 Brooks Street, Bridgeport. The court held that the plaintiffs had failed to prove that there was “probable cause to sustain the validity of [their] claim” under the Common Interest Ownership Act (CIOA); see General Statutes § 47-282 et seq.; as required by General Statutes § 52-325b (b). The issue raised by the plaintiff on appeal is whether the trial court erred in granting the defendants’ motions discharging the two notices of lis pendens.

The relevant facts are not in dispute. On June 24, 1986, Brooks Street Associates (hereinafter BSA), as landlord, commenced summary process actions against the tenants, the plaintiffs in this action, by notices to quit. The respective summary process summonses and complaints were served on July 11,1986. In response, all the tenants filed essentially identical answers and special defenses. Of relevance to the present action is the tenants’ second special defense that relied on General Statutes § 47-290 (d) (3) of CIOA. That provision authorizes a court to enjoin summary process proceedings if it “finds that there is a substantial probability that the owner or his successor in interest will create a common interest community within nine months from the date the action by the owner or tenant was instituted . . . . ” BSA responded to the tenants’ defense by claiming that the property was not going to be converted into “common interest communities” and therefore that CIOA did not apply.

Apparently in response to BSA’s summary process actions, Ana Garcia, then a tenant in one of the buildings owned by BSA, instituted the present action against BSA and its individual partners, Phillip Baroff, Leonard C. Plum, Louis I. Gladstone and Phillip J. Kuchma, on July 18, 1986. In the third count of her complaint, she claimed that the defendants intended to convert the Brooks Street buildings into common interest communities and that, in pursuit of that intent, they had violated, and would in the future violate, numerous provisions of CIOA. Later Brent Wildman, Richard Zbras, Paul and Dolores Lamoureux, Patricia Paul, Daniel and Diane O’Neil, Carol Steinberg, Ronald and Lucy Honcharik, and James Broadbin were joined as additional plaintiffs. Like Garcia, all of those joined as plaintiffs were living as tenants in the Brooks Street buildings owned by BSA at the time of the commencement of this action. Under General Statutes § 47-292 of CIOA, the plaintiffs sought damages and also injunctive relief to restrain BSA from “maintaining or commencing any summary process proceedings.”

By notices dated September 9, 1986, the plaintiffs filed a notice of lis pendens against each of the subject properties to notify potential buyers and creditors of their continued interests and CIOA claims in the real estate. On September 15, 1986, the plaintiffs, after a hearing, also obtained a $65,000 real estate attachment covering the two properties in question. On September 23,1986, the defendants filed motions to discharge the two notices of lis pendens pursuant to General Statutes § 52-325a (c), arguing that there was no probable cause to sustain the validity of the plaintiffs’ claims under CIOA as required by General Statutes § 52-325b (b). The applicability of CIOA being the issue central to both the validity of the tenants’ special defenses in the summary process cases and to the defendants’ motions to discharge the plaintiff tenants’ notices of lis pendens, the two matters were, at the request and with the consent of all counsel, consolidated for purposes of a joint hearing.

On February 25,1987, the trial court rendered judgment in the summary process actions in favor of the landlord BSA. In so doing, the court rejected the tenants’ second special defense and determined that CIOA was not applicable to BSA’s plans for the buildings. Finding that CIOA did not apply in the present case, the court also granted the defendants’ motions to discharge the two notices of lis pendens filed against the real estate.

Initially, Steinberg and the Honchariks filed this appeal from the order of the Superior Court discharging the two notices of lis pendens in the Appellate Court on March 4,1987. Subsequently, the Honchariks withdrew from this appeal leaving Steinberg as the sole plaintiff on appeal. Pursuant to Practice Book § 4023, we transferred the appeal to this court. We find that the propriety of the Superior Court’s discharge of the two notices of lis pendens is an issue on which we can no longer afford the plaintiff any practical relief. Stein-berg’s appeal, therefore, must be dismissed as moot.

Since the Superior Court discharged the two notices of lis pendens, all of the plaintiffs, none of whom appealed the decision of the Superior Court in their summary process matters, have moved out of the Brooks Street buildings and no longer wish to occupy the premises. Further, the plaintiff on appeal does not wish to pursue any other rights she may have under CIOA that would entitle her to an interest in the real estate itself. According to her reply brief and to concessions made at oral argument, the only relief sought by Steinberg at this time is monetary damages pursuant to CIO A. In view of Steinberg’s concessions and because of the events that have transpired, a successful conclusion to her appeal would give her no relief since she no longer possesses or professes an interest in real estate that would be afforded any protection by a notice of lis pendens.

General Statutes § 52-325 (a) states that a notice of lis pendens may be filed by a party to an action that is “intended to affect real property.” Actions “intended to affect real property” are defined by § 52-325 (b) as follows: “(1) actions whose object and purpose is to determine the title or rights of the parties in, to, under or over some particular real property; (2) actions whose object and purpose is to establish or enforce previously acquired interests in real property; (3) actions which may affect in any manner the title to or interest in real property, notwithstanding the main purpose of the action may be other than to affect the title of such real property.”

From the face of the statute it is clear that a notice of lis pendens is appropriate only where the pending action will in some way, either directly or indirectly, affect the title to or an interest in the real property itself. See Stratton v. Ward, 39 Conn. Sup. 195, 474 A.2d 113 (1983) (interpreting § 52-325 [b] [3], where the court relied on the plain meaning of the statute). Where, as here, a party to a pending action seeks only monetary damages that will not affect the title of the real estate owned by an adverse party, a notice of lis pendens is properly discharged as it no longer serves its purpose, which is to put potential buyers of the real estate and creditors of its owners on notice that the real estate may be subject to pending adverse interests that may affect the title or right to the property. See Kukanskis v. Griffith, 180 Conn. 501, 507, 430 A.2d 21 (1980); 51 Am. Jur. 2d, Lis Pendens § 1. Accordingly, since Steinberg no longer claims any interest or right in the real estate itself, no practical relief can follow from the reinstatement of the two notices of lis pendens discharged by the trial court. Therefore, we conclude, without deciding the merits of Steinberg’s CIOA claim, that this appeal must be dismissed as moot. See Sadlowski v. Manchester, 206 Conn. 579, 583, 538 A.2d 1052 (1988); Board of Education v. Board of Labor Relations, 205 Conn. 116, 124-25, 530 A.2d 588 (1987); Murray v. Lopes, 205 Conn. 27, 30, 529 A.2d 1302 (1987); State v. Nardini, 187 Conn. 109, 112, 445 A.2d 304 (1982); Waterbury Hospital v. Connecticut Health Care Associates, 186 Conn. 247, 249, 440 A.2d 310 (1982); Scalo v. Mandanici, 179 Conn. 140, 146-47, 425 A.2d 1272 (1979); Harkins v. Driscoll, 165 Conn. 407, 409, 334 A.2d 901 (1973); Reynolds v. Vroom, 130 Conn. 512, 515, 36 A.2d 22 (1944); Rollins v. Holcomb, 122 Conn. 664, 666, 190 A. 260 (1937).

Our present holding obviously does not bar any claim for money damages under CIO A. The plaintiffs are free to pursue the CIOA counts of their complaint and the $65,000 bond substituted for their original attachment still exists to satisfy any damages they may be able to prove.

The plaintiff Steinberg’s appeal is dismissed.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 52-325b. burden of proof at hearing. AUTHORITY OF COURT, (a) Upon the hearing held on the application or motion set forth in section 52-325a, the plaintiff shall first be required to establish that there is probable cause to sustain the validity of his claim. Any property owner entitled to notice under subsection (c) of section 52-325 may appear and be heard on the issue.
      “(b) Upon consideration of the facts before it, the court or judge may: (1) Deny the application or motion if probable cause to sustain the validity of the claim is established, or (2) order such notice of lis pendens discharged of record if probable cause to sustain the validity of the plaintiff’s claim is not established.”

       The seven summary process cases were as follows: Brooks Street Associates v. Steinberg, Docket No. SPBR 8607 08411; Brooks Street Associates v. Wildman, Docket No. SPBR 8607 08 417; Brooks Street Associates v. Zbras, Docket No. SPBR 8607 08413; Brooks Street Associates v. O’Neil, Docket No. SPBR 8607 08415; Brooks Street Associates v. Paul, Docket No. SPBR 8607 08414; Brooks Street Associates v. Garcia, Docket No. SPBR 8607 08412; Brooks Street Associates v. Broadbin, Docket No. SPBR 8608 08628. The Lamoureuxes and the Honchariks, other tenants, had vacated their respective demised premises prior to the hearings on the summary process actions.

       The plaintiffs’ original complaint filed on July 18,1986, contained three counts. The first and second counts are not in issue in this appeal. The complaint was subsequently amended on September 11,1986, in order to add a count not relevant to this proceeding.

       “[General Statutes] Sec. 47-292. tenant’s cause of action. A tenant who claims to be aggrieved by a violation of sections 47-282 to 47-293, inclusive, or of section 47a-23c or who claims that a landlord, declarant or unit owner has harassed him or engaged in conduct with the purpose of improperly inducing him to vacate his dwelling unit may bring an action in the superior court for the judicial district in which such person resides. The court may, in addition to damages, or in lieu of damages, order injunctive or other equitable relief and award the plaintiff costs and reasonable attorney’s fees.”

       On March 20, 1987, pursuant to a motion filed by BSA under General Statutes § 52-304 et seq., the Superior Court dissolved the attachment and substituted a bond with a surety in the amount of $65,000. Presently, the bond still stands and is not in contention on this appeal.

       General Statutes § 52-325a (c) provides in pertinent part: “If the action for which notice of lis pendens was recorded, is pending before any court, the property owner may at any time, unless the application under subsection (a) of this section has previously been ruled upon, move that such notice of lis pendens be discharged of record.”

       The Superior Court’s rationale for rejecting the plaintiff tenants’ claims under CIOA were, pursuant to a motion filed by them under Practice Book § 4051, set forth in an articulation dated October 20, 1987.

       In addition to injunctive relief against summary process, a tenant’s property interests under CIOA include a right to purchase a converted unit: “[General Statutes] Sec. 47-285. conversion tenant’s right to purchase converted unit, (a) For the first ninety days after giving a conversion notice to a tenant, a declarant shall offer to convey the converted unit occupied by that tenant to that tenant. If a tenant fails to purchase the converted unit during that ninety-day period, the declarant may not offer to dispose of an interest in that converted unit during the following one hundred eighty days at a price or on terms more favorable to the offeree than the price or terms offered to the tenant. This provision does not apply to any unit which will be restricted exclusively to nonresidential use or the boundaries of which do not substantially conform to the dimensions of the unit before conversion.”

       “[General Statutes] Sec. 52-325. LIS pendens, (a) In any action in a court of this state or in a court of the United States (1) the plaintiff or his attorney, at the time the action is commenced or afterwards, or (2) a defendant, when he sets up an affirmative cause of action in his answer and demands substantive relief at the time the answer is filed, if the action is intended to affect real property, may cause to be recorded in the office of the town clerk of each town in which the property is situated a notice of lis pendens, containing the names of the parties, the nature and object of the action, the court to which it is returnable and the term, session or return day thereof, the date of the process and the description of the property. Such notice shall, from the time of the recording only, be notice to any person thereafter acquiring any interest in such property of the pendency of the action; and each person whose conveyance or encumbrance is subsequently executed or subsequently recorded or whose interest is thereafter obtained, by descent or otherwise, shall be deemed to be a subsequent purchaser or encumbrancer, and shall be bound by all proceedings taken after the recording of such notice, to the same extent as if he were made a party to the action. For the purpose of this section an action shall be deemed to be pending from the time of the recording of such notice; provided such notice shall be of no avail unless service of the process is completed within the time provided by law. This section shall be construed to apply to mechanics’ liens and all other inchoate liens, certificates of which are recorded subsequent to the recording of the notice of the pendency of the action; and, in suits to foreclose mortgages or other liens, the persons whose conveyances or encumbrances are subsequently executed or subsequently recorded shall forfeit their rights thereunder, unless they apply to the court in which such action is brought to be made parties thereto, prior to the date when the judgment or decree in such action is rendered.”

       On July 6, 1988, the defendants filed a motion to dismiss the instant appeal on the ground that the appeal is moot. Specifically, the defendants argue that they no longer own the subject parcels against which the notices of lis pendens had been levied, nor does Steinberg continue to claim any interest in said parcels. In light of our decision in this case, we need not specifically address the defendants’ motion to dismiss.