author: NORCOTT, J.

text:
    STATE OF CONNECTICUT v. LENNARD J. TOCCALINE
    (SC 16298)
    Borden, Norcott, Katz, Vertefeuille and Zarella, Js.

      Argued September 10
    officially released November 13, 2001

      Richard S. Cramer, for the appellant (defendant).

      Michele C. Lukban, assistant state’s attorney, with whom, on the brief, was Debra Collins, assistant state’s attorney, for the appellee (state).
   Opinion

NORCOTT, J.

The sole issue in this appeal is whether under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), or the plain error doctrine, the defendant may prevail on an unpreserved claim regarding the admission of certain expert testimony. More specifically, the defendant claims that the trial court improperly permitted an expert witness to offer his opinion as to the credibility of the victim’s claims of sexual assault by the defendant and further, to testify regarding the guilt of the defendant. We disagree with the defendant and affirm the judgment of the trial court.

The defendant, Lennard J. Toccaline, appeals from the judgment of conviction, after a jury trial, of sexual assault in the first degree in violation of General Statutes (Rev. to 1995) § 53a-70 (a) (2), sexual assault in the fourth degree in violation of General Statutes § 53a-73a (a) (1) (A), three counts of risk of injury to a child in violation of General Statutes (Rev. to 1995) § 53-21 (2), as amended by No. 95-142, § 1, of the 1995 Public Acts, and, following a court trial, of being a persistent felony offender in violation of General Statutes (Rev. to 1995) § 53-40 (a).

The defendant had been charged in the first part of a two part information with one count of sexual assault in the first degree, two counts of sexual assault in the fourth degree, and three counts of risk of injury to a child. Because the defendant previously had been convicted of sexual assault in the first degree, he also was charged in the second part with being a persistent dangerous felony offender. The jury returned a verdict of guilty on the charges of sexual assault in the first degree, one count of sexual assault in the fourth degree, and three counts of risk of injury to a child. The defendant elected to be tried by the court on the persistent dangerous felony offender charge. Following his conviction on that count, the defendant was sentenced to a total effective term of forty years imprisonment, execution suspended after twenty-five years, and ten years probation. This appeal followed.

On the basis of the evidence presented, the jury reasonably could have found the following facts. The victim, MC, was bom on May 7, 1984. In 1996, the defendant, who was thirty-five years old, was the boyfriend of the victim’s aunt. The defendant and the victim’s aunt lived together in a house near a lake, where MC sometimes visited. Usually, the defendant went to MC’s house to pick her up and bring her to her aunt’s house. During the visits, MC and the defendant often played video games or went fishing together.

Three acts of sexual contact by the defendant occurred during the period from June, 1996, through September, 1996, when MC was twelve years old. In the first incident, the defendant kissed MC’s breasts and vaginal area. In the second incident, which occurred in August, 1996, when the defendant and MC were fishing from a boat on the lake, the defendant placed MC’s hand on his penis. He then put his hand over hers and manually stimulated himself until he ejaculated. During the third incident, which occurred in September, 1996, the defendant invited MC to come to his bed. He then got on top of her, pinned her hands above her head, and penetrated her vagina with his penis. MC did not tell her mother or aunt about the events with the defendant because she was afraid of the defendant. In October, 1996, MC and her family moved to another state.

In February, 1998, while cleaning MC’s bedroom, her mother found a letter written to MC from a man named W, who was a friend of MC’s family. W had begun to baby-sit for MC and her siblings in the summer of 1997. At that time, W was thirty-two years old and MC was thirteen. In the letter, W told MC that he wanted to hold her and take her pain away.

MC’s mother was concerned about the contents of the letter and confronted W about his relationship with MC. Her mother also confronted MC about her relationship with W. Although she denied any sexual contact with W, MC told her mother about the incidents that had occurred with the defendant during the summer of 1996. MC also had told W about the defendant’s conduct prior to disclosing this information to her mother.

The defendant gave a statement to the police in which he responded to MC’s allegations of sexual abuse. In the statement, the defendant claimed that he and MC often “horse played” together. The defendant admitted that he may have had sexual contact with MC during this horseplay, although, he claimed, MC never objected to such contact and that the contact did not constitute intercourse. The statement was entered into evidence and read aloud to the jury.

On appeal, the sole issue is whether, under Golding or the plain error doctrine, the defendant may prevail on his unpreserved claim regarding the admission of certain expert testimony. Because we do not consider the defendant’s claim to be either constitutional in nature or to constitute plain error, we affirm the judgment of conviction.

Elton Grunden, a licensed clinical social worker at a counseling and mental health center in the state to which MC’s family had moved, testified on direct examination for the state. He had met with MC in February, 1998, to discuss her allegations of sexual abuse by the defendant. Grunden testified that in that meeting, MC had described instances of sexual contact with the defendant. He also stated his opinion that the victim had suffered sexual abuse perpetrated by the defendant. Finally, Grunden testified that it was his opinion that MC’s testimony was truthful, based, in part, on the consistency of her accusations. The defendant did not object to any of Grunden’s testimony. Nevertheless, the trial court did issue a constancy of accusation instruction to the jury regarding Grunden’s testimony on direct examination.

Because, as noted previously, the defendant did not object to Grunden’s testimony at the trial court, to prevail on his claim before this court he must, as he admits, do so under either State v. Golding, supra, 213 Conn. 233, or the plain error doctrine. The state concedes that Grunden’s testimony was improper, but argues that the defendant’s unpreserved claims cannot succeed under either Golding or the plain error doctrine. We agree with the state.

Under Golding, “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail.” (Emphasis in original.) Id., 239-40.

The defendant is not entitled to prevail under Golding because his claim does not raise a constitutional issue. In essence, the defendant attempts to “ ‘put a constitutional tag on a nonconstitutional evidentiary ruling.’ ” State v. Vilalastra, 207 Conn. 35, 46, 540 A.2d 42 (1988). We previously have stated that “the admissibility of evidence is a matter of state law and unless there is a resultant denial of fundamental fairness or the denial of a specific constitutional right, no constitutional issue is involved.” (Internal quotation marks omitted.) Id. “The trial court’s exercise of discretion in admitting expert testimony is not to be disturbed unless it has been abused or the error is clear and involves a misconception of the law.” State v. Smith, 35 Conn. App. 51, 70, 644 A.2d 923 (1994). The errors claimed by the defendant in the present case are simply evidentiary in nature. Although the trial court, upon proper objection by the defendant, would have been required to exclude this testimony, the presentation of Grunden’s statements to the jury in the absence of such an objection did not implicate a constitutional right or result in a fundamentally unfair trial.*

The case presented is thus distinguishable from this court’s recent decision in State v. Grenier, 257 Conn. 797, 778 A.2d 159 (2001). In Grenier, we determined that the defendant was entitled to a new trial because expert opinion testimony had been improperly admitted concerning the victim’s credibility. Id., 801. In Grenier, unlike the present case, the defendant had objected to the improper testimony by the expert, thus preserving the issue for appeal, and our review was not limited to Golding or the plain error doctrine. Id., 802-804. Instead, our focus was on whether the improperly admitted testimony was harmful. Id., 806. We concluded that the error was not harmless, in part, because the state’s case rested entirely on the credibility of the victim. Id., 807.

Finally, the defendant urges this court, pursuant to Practice Book § 60-5, to conclude that the admission of Grunden’s testimony constituted plain error. We disagree with the defendant. “Plain error review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” (Internal quotation marks omitted.) Westport Taxi Service, Inc. v. Westport Transit District, 235 Conn. 1, 25, 664 A.2d 719 (1995). Plain error is a doctrine that should be invoked sparingly. See Berchtold v. Maggi, 191 Conn. 266, 274, 464 A.2d 1 (1983). A party cannot prevail under plain error unless it has demonstrated that the failure to grant relief will result in manifest injustice. See State v. Schiappa, 248 Conn. 132, 166, 728 A.2d 466, cert. denied, 528 U.S. 862, 120 S. Ct. 152, 145 L. Ed. 2d 129 (1999).

We conclude that the trial court’s admission of Grunden’s testimony was not plain error. We do not agree that the admission of Grunden’s testimony undermined the fairness or integrity of the trial afforded to the defendant. Further, we see nothing in the record that leads us to conclude that the verdict constituted manifest injustice to the defendant or will lead to diminished confidence in our judicial system.

The judgment is affirmed.

In this opinion the other justices concurred.

       General Statutes (Rev. to 1995) § 53a-70 (a) provides in relevant part: “A person is guilty of sexual assault in the first degree when such person ... (2) engages in sexual intercourse with another person and such other person is under thirteen years of age and the actor is more than two years older than such person . . . .”

       General Statutes § 53a-73a (a) provides in relevant part: “A person is guilty of sexual assault in the fourth degree when: (1) Such person intentionally subjects another person to sexual contact who is (A) under fifteen years of age . . . .”

       General Statutes (Rev. to 1995) § 53-21, as amended by No. 95-142, § 1, of the 1995 Public Acts, provides in relevant part: “Any person who . . . (2) has contact with the intimate parts, as defined in section 53a-65, of a child under the age of sixteen years or subjects a child under sixteen years of age to contact with the intimate parts of such person, in a sexual and indecent manner likely to impair the health or morals of such child, shall be guilty of a class C felony.” Public Act 95-142 became effective on October 1, 1995. See General Statutes § 2-32. Since the defendant committed the crimes during the period from June, 1996 through September, 1996, the proper text of § 53-21 is that as amended by Public Act 95-142.

       General Statutes (Rev. to 1995) § 53a-40 (a) provides in relevant part: “A persistent dangerous felony offender is a person who (1) stands convicted of . . . sexual assault in the first or third degree . . . and (2) has been, prior to the commission of the present crime, convicted of and imprisoned under a sentence to a term of imprisonment of more than one year or of death, in this state or in any other state or in a federal correctional institution, for any of the following crimes: (A) The crimes enumerated in subdivision (1) of this subsection . . . .” We note that No. 99-2, § 40, of the 1999 Public Acts amended § 53a-40. Public Act 99-2, § 40, became effective on October 1, 1999. Since the defendant’s crimes occurred in 1996, the 1995 revision of § 53a-40 (a) is applicable.
      The defendant was subject to § 53a-40 (a) based on a 1982 conviction for first degree sexual assault. He was sentenced to a term of twelve years imprisonment, execution suspended after five years.

       We note that the defendant originally appealed to the Appellate Court. Pursuant to General Statutes § 51-199 (b) (3), however, (his appeal should have been filed in the Supreme Court. We therefore transferred the appeal to (his court pursuant to Practice Book § 65-4.

       At the trial, W admitted that he and MC had kissed on one occasion, although both denied that they had engaged in any sexual relations. W was investigated by the local police and family services unit, but no charges were brought against him.

       The defendant’s statement provided in relevant pari,: “On one occasion when [MC] was over she and I had been horsing around. ... I recall that MO usually had worn either a halter top and shorts, a bathing suit or usually some other summer attire. During our ‘horsing around’ I recall that I moved her T-shirt up exposing her mid section, put my mouth on her skin and blew onto her skin causing a fart, like noise. ... I may have put my mouth on her in the area of her breasts and if I hit any part of her breast, it was by accident. [MC] had just begun to develop her breastfs] and my mouth never touched her nipples. . . . During the time when [MC] and I were horsing around [on the boat] I may have had an erection and [MC] may have grabbed my erection by accident. When she may have grabbed my erection she didn’t make a big deal about it. I never asked [MC] to grab my erection. After [MC] grabbed my erection, she didn’t make a big deal about it and I never mentioned this incident to anyone. . . . On one occasion, I recall being on my bed in the bedroom. . . . During our ‘horsing around’ I ended up on top of her on the bed. Sometime during our horsing around she would sometime[s] get the advantage and end up on top of me. When I ended up on top of her I recall having her arms pinned up above her head holding her down. I was on top of her for just a couple of minutes and as I was on top of her she was moving around trying to get away. . . . While she was trying to get away her clothes were moving around. During the time I was on top of her when we were horsing around, it’s possible that I became excited and got an erection. Being in the position that I was in on fop of her she would have felt my erection in the area of her vagina. Due to the fact that we were both moving around she may have misunderstood that for sexual contact.”

       The following is the relevantportion of the colloquy between the assistant state’s attorney and Grunden:
      “Q. Now, how do you know the victim?
      “A. I met the victim on 2/18/98, when she and her mother arrived at my office as clients.
      “Q. Okay. And you—could you please describe her condition at that time?
      “A. I found the victim to be as she appeared to be today. Somewhat reluctant and shy and quiet, unwilling to talk unless prompted at times.
      “Q. Okay. And what, if anything, did you do on that occasion?
      “A. She and her mother and I in my office conducted what we call an intake or a screening interview to malee a primary assessment of what was the issue so that we could get information and refer to another therapist with a specialty that might help that.
      “Q. Okay. And did you take a history of the victim at that time?
      “A. Yes. I got a history of the presenting problem and from the victim and her mother at that time.
      “Q. And did the victim describe to you sexual abuse she endured by the defendant in this matter in that history?
      “A. Yes, she did.
      “Q. Okay. And from your interview of the victim, and based on your professional experience, have you an opinion as to whether or not the victim was a victim of sexual abuse by the defendant in this matter?
      “A. Of that, I don’t have much doubt. Yes, I do believe that.
      “Q. I’m sorry, your opinion is?
      “A. I don’t have much doubt that what the victim said is true.”
      Later, the following exchange between the assistant state’s attorney and Grunden occurred:
      “Q. Now, however, in your report you do state that the victim confirms several incidents of molestation with the defendant ....
      “A. Yes. And that’s the basis of my opinion that I stated for you earlier. That, again, she was very explicit, very direct, very consistent in her report of those issues, and it was all very similar to what evidence she gave in her testimony this morning.
      “Q. So you were here present while she testified today?

        “A. Yes.
      "Q. And you’re stating that her testimony today was what in relation to what she said about [the defendant] to you back in February of ’98?
      “A. It was so consistent to be extremely similar in both her presentation and in the facts she presented.
      “Q. And that is the reason you based your opinion that it, in fact, had occurred?
      “A. Yes.”
      Later, the following exchange between the assistant state’s attorney and Grunden occurred:
      “Q. Now, the incidents that occurred between the defendant and the victim in this matter, in your professional opinion, did each of those incidents include some type of what would be qualified as sexual activity?
      “A. Yes, she was very clear, as she was today, about many of the details that she reported this morning.”

       The trial court stated: “Let me take this opportunity to caution the jury. We’ve had testimony from [Grunden] and also the alleged victim’s mother indicating that the victim related to those parties the allegations that she also made against the defendant. That is not direct evidence that the defendant engaged in the activity, but it is introduced to corroborate the victim’s testimony. It goes to her credibility, and it’s used for that limited purpose only. Normally . . . out-of-court statements are not admissible in court, but there is this exception in sexual assault cases to allow testimony concerning what the victim said for purposes of corroboration of the victim’s credibility only and not as direct proof that those activities occurred. Obviously, the two other witnesses weren’t there and did not see anything of that nature.”
      The trial court, in its charge to the jury, also gave instructions regarding the role of experts generally and additional instructions regarding constancy of accusation testimony.

       We recognize that an expert witness may not testify regarding the credibility of a particular victim. See State v. Grenier, 257 Conn. 797, 806, 778 A.2d 159 (2001); State v. Ali, 233 Conn. 403, 432, 660 A.2d 337 (1995); State v. Borrelli, 227 Conn. 153, 173-74, 629 A.2d 1105 (1993). We also recognize that witness “[t]estimony is objectionable if it embraces an opinion on the ultimate issue to be decided by the trier of fact. Kowalewski v. Mutual Loan Co., 159 Conn. 76, 80, 266 A.2d 379 (1970); State v. Donahue, 141 Conn. 656, 667, 109 A.2d 364 (1954) [appeal dismissed and cert. denied, 349 U.S. 926, 75 S. Ct. 775, 99 L. Ed. 1257 (1955)]; LaFrance v. LaFrance, 127 Conn. 149, 155, 14 A.2d 739 (1940).” C. Tait, Connecticut Evidence (3d Ed. 2001) § 7.17.2. Thus, the trial court, upon objection by the defendant, would have been obligated to exclude Grunden’s testimony relating to MC’s credibility and the guilt of the defendant. For the reasons stated in this opinion, however, the defendant’s claim does not raise a constitutional issue or amount to plain error.

       The defendant also argues on appeal that, the assistant state’s attorney '‘exploited]” Grunden’s testimony when she referred to it in her closing argument. The assistant state’s attorney stated in her closing argument: “And don’t forget that MC has been very consistent as to who did this to her. That’s corroborated by others’ testimony that she only said it was [the defendant]. Counselor Grunden also said that he felt that there was definitely something [that] had happened with [the defendant] and did not feel that something had happened, other than kissing, with [W].”
      On rebuttal argument, the assistant state’s attorney also stated: “Mr. Grunden said there was no doubt it occurred. [The defendant’s attorney] felt that that—because of a one hour visit—was malpractice. Well, that’s why I went into Mr. Grunden’s professional experience. I remember he’d been doing that job. He has the background to make opinions like that. And again, it’s his qualifications that has him be able to take the stand and say something like that. Remember, he knew he was under oath. And he said in his opinion it had occurred between MC and [the defendant].”
      If the defendant is alleging a form of prosecutorial misconduct resulting in the deprivation of his constitutional right to a fair trial, we first note that the defendant never objected to these remarks in the state’s closing argument. In addition, to the extent that we regard the defendant’s argument as a claim of prosecutorial misconduct, the defendant may not prevail under either Golding or the plain error doctrine, because these brief and isolated comments do not implicate the defendant’s constitutional right to a fair trial. State v. Atkinson, 235 Conn. 748, 769, 670 A.2d 276 (1996) (“ ‘[Golding] review of [a claim of misconduct by the prosecutor in closing argument] is unavailable where the claimed misconduct was not blatantly egregious and merely consisted of isolated and brief episodes that did not reveal apattern of conduct repeated throughout the trial’ ”). “Furthermore, in order to warrant review under the plain error doctrine, the allegedly improper conduct must so pervade the defendant's trial as to have impaired the effectiveness or integrity of the judicial process.” Id.

       We note that Grenier was released after the filing of briefs in the present case, but prior to oral argument before this court.

       We also recognize that in the present case, unlike Grenier, the jury was presented with significant evidence, aside from the victim’s testimony, that the sexual abuse had in fact occurred. For example, MC’s physician testified that a physical examination revealed that MC had experienced vaginal penetration, which most likely was caused through sexual relations. There also was testimony concerning depression and a change in character MC experienced during and after the summer of 1996. More specifically, MC’s aunt testified that after the incident on the boat, MC returned to the house and appeared withdrawn and quiet, which was out of character for MC. Most importantly, the defendant’s own written statement corroborated much of what MC claimed to have occurred. See footnote 7 of this opinion.

       Practice Book § 60-5 provides in relevant part: “The court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The court may in the interests of justice notice plain error not brought to the attention of the trial court. ...”


source: Caselaw Access Project

author: PALMER, J.

license: Public Domain

text:
    H.O.R.S.E. OF CONNECTICUT, INC. v. TOWN OF WASHINGTON
    (SC 16313)
    Borden, Norcott, Katz, Palmer and Sullivan, Js.

      Argued January 18
    officially released November 20, 2001

      William C. Franklin, with whom, on the brief, was Denise M. Cloutier, for the appellant (defendant).

      Jeffrey J. Tinley, with whom was Robert Nastri, Jr., for the appellee (plaintiff).

       The listing of justices reflects their seniority status on this court as of the date of argument.

   Opinion

PALMER, J.

The plaintiff, H.O.R.S.E. of Connecticut, Inc., appealed to the trial court from the decision of the board of assessment appeals of the defendant town of Washington, claiming that it is a charitable organization, the real property of which is entitled to a tax exemption pursuant to General Statutes (Rev. to 1995) § 12-81 (7). The trial court granted the plaintiffs motion for summary judgment and rendered judgment thereon, from which the defendant appealed to the Appellate Court. The Appellate Court affirmed the trial court’s judgment. H.O.R.S.E. of Connecticut, Inc. v. Washington, 57 Conn. App. 41, 51, 746 A.2d 820 (2000). We granted the defendant’s petition for certification to appeal limited to the following two issues: “Did the Appellate Court properly conclude that: (1) there were no material facts in dispute regarding whether the plaintiffs property is used exclusively for charitable purposes under ... § 12-81 (7); and (2) even if there were no such facts in dispute, as a matter of law the plaintiff is a charitable organization under § 12-81 (7), and uses its property exclusively for charitable purposes?” H.O.R.S.E. of Connecticut, Inc. v. Washington, 253 Conn. 911, 754 A.2d 161 (2000). We disagree with the Appellate Court’s conclusion that the trial court properly determined that there are no material facts in dispute as to whether the plaintiff uses its property exclusively for charitable purposes and, consequently, we reverse the judgment of the Appellate Court.

The following undisputed facts are set forth in the opinion of the Appellate Court. “The [defendant’s] board of assessment appeals denied the plaintiffs claim for an exemption from local taxation as to a forty-six acre parcel of land that the plaintiff owns and operates as a farm for injured, distressed and mistreated horses. The plaintiff appealed to the Superior Court, claiming that [its property is exempt from taxation] under § 12-81 (7) because it is a corporation 5organized exclusively for charitable purposes, and it uses the property exclusively to carry out such purposes. The court noted that the plaintiffs corporate charter reveals that its objectives are to unite into one organization the care of all abused, neglected, unwanted and lost domestic hoofed animals; to provide education and training pertinent to the care of hoofed animals for employees, members and officers, and the community as a whole; and to safeguard, advance and promote the safety and well-being of domestic hoofed animals by political, educational and other community activity. The plaintiffs president, Patricia Wahlers, resides on the property . . . and cares for the horses.” (Internal quotation marks omitted.) H.O.R.S.E. of Connecticut, Inc. v. Washington, supra, 57 Conn. App. 42-43. Additional facts will be set forth as necessary.

The trial court granted the plaintiffs motion for summary judgment, concluding that there was no genuine issue of material fact and, on the basis of the undisputed facts, the plaintiffs property was tax exempt under § 12-81 (7) because the plaintiff is a charitable organization that uses its property exclusively for charitable purposes. On appeal to the Appellate Court, the defendant claimed that the trial court improperly had determined that there were no material facts in dispute. Id., 44. The defendant further claimed that, even if, as the trial court had concluded, there were no material facts in dispute, the plaintiff is not entitled to a property tax exemption under § 12-81 (7). Id., 46. The defendant advanced two arguments in support of this claim: first, the plaintiff does not qualify as a charitable organization for purposes of § 12-81 (7) because its purpose is to seive the well-being of horses, not that of social man; id., 47; and second, even if it is assumed that the plaintiff is a charitable organization within the meaning of § 12-81 (7), it nevertheless is not entitled to a property tax exemption because it does not use its property exclusively for charitable purposes. See id., 48. The Appellate Court rejected the defendant’s arguments and affirmed the trial court’s judgment. Id., 51. Because we conclude that a genuine issue of material fact exists as to whether the plaintiff uses its property exclusively for charitable purposes, we conclude that summary judgment was inappropriate and, therefore, we reverse the judgment of the Appellate Court.

Before addressing the merits of the defendant’s claim, we set forth the applicable standard of review. “The standards governing our review of a trial court’s decision to grant a motion for summary judgment are well established. Practice Book [§ 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. ... In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. Practice Book [§ 17-46].” (Citations omitted; internal quotation marks omitted.) Appleton v. Board of Education, 254 Conn. 205, 209, 757 A.2d 1059 (2000). “A material fact . . . [is] a fact which will make a difference in the result of the case.” (Internal quotation marks omitted.) Hammer v. Lumberman’s Mutual Casualty Co., 214 Conn. 573, 578, 573 A.2d 699 (1990). Finally, the scope of our review of the trial court’s decision to grant the plaintiffs motion for summary judgment is plenary. See, e.g., Doucette v. Pomes, 247 Conn. 442, 453, 724 A.2d 481 (1999).

Our review of the defendant’s claim also is informed by the “settled rule of law that statutes which exempt from taxation are to be strictly construed against the party claiming an exemption. . . . Exemptions, no matter how meritorious, are of grace, and must be strictly construed. They embrace only what is strictly within their terms.” (Citations omitted; internal quotation marks omitted.) United Church of Christ v. West Hartford, 206 Conn. 711, 718, 539 A.2d 573 (1988). “It is also well settled that the burden of proving entitlement to a claimed tax exemption rests upon the party claiming the exemption.” (Internal quotation marks omitted.) Id., 719.

With these principles in mind, we turn to the defendant’s claim that the Appellate Court improperly upheld the trial court’s decision to grant the plaintiffs motion for summary judgment. Certain additional facts, however, are necessary to our resolution of that claim.

In support of its opposition to the plaintiffs motion for summary judgment, the defendant relied on the following testimony of Wahlers, which was taken at a deposition on January 23, 1997:

“[William C. Franklin, counsel for the defendant]: . . . During the time you have been on Wilbur Road [in Washington], have you permitted anyone to board healthy horses there?
“[Wahlers]: Yes.
“[Franklin]: How does that work?
“[Wahlers]: They pay board. They bring the horses in. They pay board. Their horses are taken care of just as well as the others that are injured and/or sick.
“[Franklin]: Can people board healthy horses there?
“[Wahlers]: Yes. There [are] no contagious diseases. Every horse is checked before it comes through the door.
“[Franklin]: What’s the boarding deal? If I called you up and say, ‘I have a perfectly healthy horse but I know you will take good care of it, can I board the horse there?’ You say, ‘Sure.’ How much?
“[Wahlers]: Three hundred dollars a month.
“[Franklin]: Three hundred a month. What do I get for that?
“[Wahlers]: Everything.
“[Franklin]: I know nothing about horses.
“[Wahlers]: Okay. You will get whatever they need as far as feed, their hay. They get vitamins, electrolytes, that type of stuff. They get hoof oil and shoe shine. We make them pretty [and] everything else. They get groomed every day. If you can’t be there, they get hand walked or ridden if we have your permission ... to ride them. If people that are full-time working people . . . come up only on the weekends, it’s much safer to have your horse hand walked or ridden during the week to make sure it’s not a banana when you come up to ride on the weekend. They get blanketed, so on [and] so forth.
“[Franklin]: You have twenty current tenants?
“[Wahlers]: Yes.
“[Franklin]: Two are retired?
“[Wahlers]: Yes.
“[Franklin]: And of the other eighteen, how many of them are—
“[Wahlers]: Twelve boarders.
“[Franklin]: Twelve boarders and eight rehabilitation projects?
“[Wahlers]: ([Wahlers] nods).
“[Franklin]: Is that a pretty representative mix of what you have all the time? I know that the numbers change, but [have] about [one] half of your horses [been] boarders over the years?
“[Wahlers]: Yes.
“[Franklin]: How do your boarding rates compare with boarding rates around town, if you know?
“[Wahlers]: We’re less expensive.
“[Franklin]: Why is that?
“[Wahlers]: I don’t believe that boarding places should be getting as much money as they get. Besides, we don’t have an outdoor ring, which is one of the big things.”

In support of its motion for summary judgment, the plaintiff submitted the affidavit of Danielle K. Cole, dated June 27, 1997. Cole stated in her affidavit, which purports to be based upon her personal knowledge, that: (1) she had been the plaintiffs accountant since 1990; (2) the plaintiff “rescues or otherwise receives abused, neglected or abandoned horses” and “attempts to rehabilitate [them] by providing nutritional care, [medicine], exercise, and grooming in addition to professional veterinary and farrier attention”; (3) “[w]hen a horse has made suitable progress [the plaintiff] makes the animal available for adoption”; (4) “[w]hen horses are adopted their expenses are underwritten ... by freeing money for the care of animals that are not ready for adoption or that are unadoptable”; (5) “[e]ight . . . of the animals [then] on [the plaintiffs] property [were] formerly abused, neglected or abandoned horses that [were] being rehabilitated and [were] not [yet] adopted”; (6) “[t]welve ... of the animals [then] on [the plaintiffs] property [were] formerly abused, neglected or abandoned horses [and] adopted by new owners . . . that [were] continuing rehabilitation that originally [had begun with the plaintiff]”; and (7) “[t]wo ... of the animals [then] on [the plaintiffs] property belong to . . . [Wahlers’] sister . . . [Susan Wahlers], who reimburses [the plaintiff] for the cost of their necessities.” (Internal quotation marks omitted.)

The determination of whether property is entitled to a tax exemption necessarily is a fact-intensive inquiry. As the Appellate Court noted, we previously have stated that “[t]he existence of a purpose that can be characterized as charitable . . . does not in itself render a corporation charitable and tax-exempt. An institution must be exclusively charitable, not only in the purposes for which it is formed and to which its property is dedicated, but also in the manner and means it adopts for the accomplishment of those purposes.” (Internal quotation marks omitted.) H.O.R.S.E. of Connecticut, Inc. v. Washington, supra, 57 Conn. App. 49, quoting Waterbury First Church Housing, Inc. v. Brown, 170 Conn. 556, 562, 367 A.2d 1386 (1976). Thus, “[w]hether the property for which exemption is claimed is actually and exclusively used for . . . [charitable] purposes must be determined from the facts of the case.” (Internal quotation marks omitted.) Waterbury First Church Housing, Inc. v. Brown, supra, 561, quoting Camp Isabella Freedman of Connecticut, Inc. v. Canaan, 147 Conn. 510, 514, 162 A.2d 700 (1960). The extent to which an organization uses its property for purposes not directly related to its charitable purpose, therefore, is relevant to the determination of whether the organization’s property is entitled to tax-exempt status under § 12-81 (7).

The defendant contends that the trial court improperly granted the plaintiffs motion for summary judgment in light of Wahlers’ deposition testimony. In particular, the defendant relies on Wahlers’ testimony that, at the time of her deposition, twelve of the twenty horses on the plaintiffs property were commercial “boarders.” According to the defendant, Wahlers’ testimony reasonably may be interpreted to mean that those twelve horses were healthy and were not, and never have been, in need of the special care, treatment or rehabilitation that the plaintiff affords abused, neglected or abandoned horses in accordance with its charitable purpose.

We agree with the defendant that Wahlers’ deposition testimony is fairly susceptible of such an interpretation. Wahlers described those twelve horses as “boarders,” as distinguished from the eight “rehabilitation projects,” after explaining that the plaintiff boards healthy horses for a fee. At no time did Wahlers indicate that the “boarders” to which she was referring were, or ever had been, in need of rehabilitation. Construing Wahlers’ testimony in the light most favorable to the defendant, as the nonmoving party; e.g., Miller v. United Technologies Corp., 233 Conn. 732, 745, 660 A.2d 810 (1995); it reasonably may be understood to suggest that, at the time of Wahlers’ testimony, over one half of the horses on the plaintiffs property were perfectly healthy, commercial boarders. As so interpreted, Wahlers’ testimony gives rise to a genuine issue of material fact, namely, whether the plaintiff uses its property exclusively for charitable purposes within the meaning of § 12-81 (7) in light of the number of healthy, commercially-boarded horses that are maintained on the plaintiffs property in relation to the number of horses that are boarded there because of their need for special care or rehabilitation.

The plaintiff asserts that any ambiguity in Wahlers’ deposition testimony regarding the number of completely healthy, commercially-boarded horses is clarified by a statement in Cole’s affidavit that each of the twelve boarders was, at one time, sick, abused or neglected, and, although those horses had been adopted, they continued to need rehabilitative care. Although the explanation posited by the plaintiff is plausible, it does not represent the only reasonable inference that may be drawn from the two sets of sworn statements. As we have indicated, those statements also may be viewed as inconsistent. Because we must view the statements in the manner most favorable to the position advanced by the defendant as the nonmoving party; e.g., id.; we are not at liberty to resolve that latent factual discrepancy in the plaintiffs favor. Moreover, we cannot say that the potential conflict, between Wahlers’ deposition testimony and Cole’s affidavit regarding the status of the horses being cared for by the plaintiff is immaterial to the issue of whether the plaintiff uses its property exclusively for charitable purposes as required under § 12-81 (7). We, therefore, conclude that summary judgment was inappropriate and that, consequently, the Appellate Court improperly affirmed the judgment of the trial court.

The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to remand the case to the trial court for further proceedings according to law.

In this opinion the other justices concurred.

       “The acronym H.O.R.S.E. stands for Humane Organization Representing Suffering Equines.” (Internal quotation marks omitted.) H.O.R.S.E. of Connecticut, Inc. v. Washington, 57 Conn. App. 41, 42 n.1, 746 A.2d 820 (2000).

       General Statutes (Rev. to 1995) § 12-81 provides in relevant part: “The following-described property shall be exempt from taxation ....
      “(7) . . . Subject to the provisions of sections 12-87 and 12-88, the real property of, or held in trust for, a corporation organized exclusively for . . . charitable purposes . . . and used exclusively for carrying out . . . such purposes . . . provided (a) any officer, member or employee thereof does not receive or at any future time shall not receive any pecuniary profit from the operations thereof, except reasonable compensation for services in effecting. . . such purposes or as proper beneficiary of its strictly charitable purposes, and provided (b) in 1965, and quadrennially thereafter, a statement on forms prepared by the secretary of the office of policy and management shall be filed on or before the last day required by law for the filing of assessment returns with the local board of assessors of any town, consolidated town and city or consolidated town and borough, in which any of its property claimed to be exempt is situated. . .
      Unless otherwise noted, all references in this opinion to § 12-81 (7) are to the 1995 revision.
      General Statutes § 12-88 provides in relevant part: “Real property belonging to, or held in trust for, any organization mentioned in subdivision (7) ... of section 12-81 . . . not used exclusively for carrying out [the purposes stated in that subdivision] but leased, rented or otherwise used for other purposes, shall not be exempt. If a portion only of any lot or building belonging to, or held in trust for, any such organization is used exclusively for carrying out. . . such purposes, such lot or building shall be so exempt only to the extent of the portion so used and the remaining portion shall be subject to taxation.”

       We, therefore, need not address the second certified issue.

       The plaintiff is a nonstock corporation that was formed in 1982.

       We note that the following additional facts are undisputed. Wahlers has worked for the plaintiff on a full-time basis without salary or other monetary compensation since 1989. From time to time, Wahlers has permitted other persons to reside at a house in which she also resides, which is located on the plaintiffs property. Prior to the plaintiffs purchase of that property in 1995, Wahlers did not reside on the plaintiffs property, which was located elsewhere. Wahlers occasionally gives riding lessons and trains horses, sometimes on the plaintiffs property, and she supports herself from the income that she derives from those activities. That income, however, is relatively modest and, since 1989, it has not been sufficient to trigger federal tax liability. More than one half of the plaintiffs estimated 1996 income of $56,000 was derived from donations, grants and fund-raisers. Finally, since 1985, the federal government has recognized the plaintiff as a charitable entity that is exempt from federal income taxation under § 501 of the Internal Revenue Code. See 26 U.S.C. § 501 (1994).

       As we have indicated; see footnote 3 of this opinion; because we conclude that there are material facts in dispute as to whether the plaintiff uses its property exclusively for charitable purposes, we do not reach the second certified issue, which presumes that there are no such disputed facts. If, however, the defendant is correct that the plaintiff is not entitled to an exemption pursuant to § 12-81 (7) because its purpose of serving the well-being of horses is not a charitable purpose within the meaning of § 12-81 (7), then the defendant would be entitled to judgment as a matter of law notwithstanding the existence of material facts in dispute. We, therefore, briefly address that issue.
      We agree with both the trial court and the Appellate Court that the plaintiff is not disqualified from receiving a tax exemption pursuant to § 12-81 (7) merely because its purpose is to provide care and protection to sick or otherwise distressed horses. As the Appellate Court explained in rejecting the defendant’s claim to the contrary, this court “has recognized that the definition of charitable uses and purposes has expanded with the advancement of civilization and the daily increasing needs of men. . . . It no longer is restricted to mere relief of the destitute or the giving of alms but comprehends activities, not in themselves self-supporting, which are intended to improve the physical, mental and moral condition of the recipients and make it less likely that they will become burdens on society and more likely that they will become useful citizens. . . . Charity embraces anything that tends to promote the well-doing and the well-being of social man. ... An institution is charitable when its property and funds are devoted to such purposes as would support the creation of a valid charitable trust. . . . United Church of Christ v. West Hartford, [206 Conn. 711, 719-20, 539 A.2d 573 (1988)].
      “Despite the broadened definition of charitable uses and puiposes, however, the defendant claims that the plaintiff cannot be considered a charitable organization because it promotes the well-being of horses, not that of social man. In addressing this claim, the [trial] court noted that the [plaintiffs] purpose ... is obviously designed to serve the well-being of horses. Furthermore, the [trial] court concluded that the promotion of this purpose has long been understood to promote the well-being of social man. In Shannon v. Eno, 120 Conn. 77, 81, 179 A. 479 (1935), [the] [c]ourt construed a will provision that called for setting aside $2000 for the purpose of founding and supporting a Catery ... for the care of homeless animals and boarders. ... In concluding that this will provision created a charitable trust, the court noted that [t]he intention of the testatrix in making the gift . . . was obviously to afford care and protection to and alleviate the sufferings of that class of animals which by domestication contribute to comfort, pleasure and well being of man; and it is not questioned that such a gift is a proper charitable use. . . . Id., 82.
      “In the present case, it also is obvious (hat the [plaintiffs] purpose . . . is to give care and protection to a class of animals that contribute to the comfort, pleasure and well-being of people. Because such apurpose supports the creation of a valid charitable trust and because an institution is charitable when its property and funds are used for such purposes as would support the creation of a valid charitable trust ... we conclude that the plaintiff . . . is a charitable institution.” (Citations omitted; internal quotation marks omitted.) H.O.R.S.E. of Connecticut,, Inc. v. Washington, supra, 57 Conn. App. 47-48. Therefore, should the plaintiff establish that it uses its property exclusively for purposes of carrying out the objectives enumerated in its corporate charter, it is entitled to a property tax exemption under § 12-81 (7).

       Practice Book § 17-49 provides: “The judgment sought shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that (here is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”

       Practice Book § 17-46 provides: “Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto.”

       It is unclear whether this number includes two horses that, according to Wahlers, were “retired.” Wahlers testified at her deposition that horses are cared for until they can be adopted and that, if a horse is not adopted, the plaintiff retires the horse on its property and maintains it there at no charge until its death. According to Cole’s affidavit, two of the horses that were boarded by the plaintiff belong to Wahlers’ sister. It is not clear which of the three categories of horses identified by Wahlers—retired, boarders or rehabilitation projects—if any, includes her sister’s two horses.


author: KATZ, J.

text:
    NANCY BURTON v. SYLVIA W. BROWD
    (SC 16444)
    Sullivan, C. J., and Borden, Norcott, Katz and Palmer, Js.
    Argued September 12
    officially released November 20, 2001

      Nancy Burton, pro se, the appellant (plaintiff).

      Douglas J. Lewis, for the appellee (defendant).
   Opinion

KATZ, J.

This case involves a claim by the plaintiff, an attorney, for damages for legal services allegedly rendered to the defendant. The sole issue in this certified appeal is whether the Appellate Court properly dismissed the plaintiffs appeal. One of the issues raised in that appeal was whether the trial court, during the hearing on the plaintiffs motion for reargument, improperly denied the plaintiffs motion for a continuance for the purpose of filing a motion to substitute a representative of the defendant’s estate for the defendant following the defendant’s death. The Appellate Court dismissed the appeal, citing the plaintiffs failure to substitute. On appeal to this court, the plaintiff claims that the dismissal was improper. We conclude that the Appellate Court abused its discretion in dismissing the plaintiffs appeal, and, accordingly, we reverse the judgment of dismissal.

The record reveals the following facts and procedural history. On April 20, 1995, the plaintiff, Nancy Burton, an attorney licensed in the state of Connecticut, filed this complaint against a former client, the defendant, Sylvia W. Browd, seeking to recover damages for nonpayment of fees for legal services rendered to the defendant. On July 7, 1999, the trial court, Radcliffe, J., rendered a judgment for the plaintiff in the amount of $5727.04. On July 27, 1999, the plaintiff moved for reargument claiming, inter alia, that the award was inadequate. The defendant’s counsel filed an objection to the motion for reargument the following day.

The trial court heard argument on both the plaintiffs motion and the defendant’s objection on August 9,1999. During the proceedings, the defendant’s counsel informed the court that the defendant had died. The plaintiff orally moved for a continuance for the sole purpose of filing a motion to substitute a representative of the defendant’s estate as the named defendant, pursuant to General Statutes § 52-599 (b). The court denied the plaintiffs motion for a continuance, proceeded with the hearing, and ultimately denied the plaintiffs motion for reargument.

On August 20, 1999, the plaintiff appealed to the Appellate Court from the trial court’s judgment claiming, inter alia, that the trial court improperly had denied her motion for a continuance. The defendant filed a cross appeal challenging the judgment for the plaintiff. The Appellate Court, sua sponte, ordered the parties to appear before it to present reasons why the appeal and the cross appeal should not be dismissed for failure of either party to substitute a representative of the defendant’s estate. On October 24, 2000, the day before the scheduled hearing, the plaintiff filed in the Appellate Court a motion for leave to substitute parties, pursuant to Practice Book § 62-5. The Appellate Court subsequently heard arguments regarding the parties’ failure to substitute, at which time the plaintiff informed the Appellate Court that the trial court had denied her motion for a continuance for the purpose of filing a motion to substitute. The plaintiff also orally informed the panel that she had filed in the Appellate Court a motion to substitute. The Appellate Court summarily dismissed the appeal and the cross appeal, citing the plaintiffs failure to substitute, and subsequently denied the plaintiffs motion for leave to substitute.

The plaintiff then petitioned this court for certification to appeal, raising the issue of the propriety of the Appellate Court’s dismissal of her appeal. We granted certification limited to the following issue: “Did the Appellate Court properly dismiss the plaintiffs appeal?” Burton v. Browd, 255 Conn. 923, 763 A.2d 1040 (2000). We conclude that the Appellate Court’s dismissal was an abuse of discretion, and, accordingly, we reverse the judgment of the Appellate Court.

The Appellate Court has judicial discretion to act, srra sponte, on grounds not directly raised by the parties. See State v. Gilnite, 202 Conn. 369, 373, 521 A.2d 547 (1987). “Judicial discretion, however, is always a legal discretion, exercised according to the recognized principles of equity.” Thomas v. Thomas, 159 Conn. 477, 480, 271 A.2d 62 (1970). “Such discretion . . . imports something more than leeway in decision making and should be exercised in conformity with the spirit of the law and should not impede or defeat the ends of substantial justice.” (Internal quotation marks omitted.) Red Rooster Construction Co. v. River Associates, Inc., 224 Conn. 563, 575, 620 A.2d 118 (1993). “[Reversal is required where the abuse is manifest or where injustice appears to have been done.” Thomas v. Thomas, supra, 480. We conclude that such an injustice was done in the present case.

Before discussing the merits of the plaintiffs claim on appeal, we underscore that the focus of our review is not the actions of the trial court but rather the Appellate Court’s dismissal of the plaintiffs appeal. See State v. Torrence, 196 Conn. 430, 433, 493 A.2d 865 (1985). Because the Appellate Court dismissed the plaintiffs appeal on the procedural ground that she had failed to substitute the proper party, we begin with a brief discussion of the law regarding actions against a deceased party.

Although at common law the death of a sole plaintiff or defendant abated an action; Barton v. New Haven, 74 Conn. 729, 730, 52 A. 403 (1902); by virtue of § 52-599, Connecticut’s right of survival statute, a cause of action can survive if a representative of the decedent’s estate is substituted for the decedent. It is a well established principle, however, that “[djuring the interval . . . between the death and the revival of the action by the appearance of the executor or administrator, the cause has no vitality. The surviving party and the court alike are powerless to proceed with it.” Id., 730-31; see, e.g., Boucher Agency, Inc. v. Zimmer, 160 Conn. 404, 407, 279 A.2d 540 (1971) (following defendant’s death, plaintiff required to move for substitution in order to avail itself of right to appeal judgment); Hennessy v. Denihan, 110 Conn. 646, 650, 149 A. 250 (1930) (following death of party, decree of court survived in favor of administrator of decedent’s estate); Schoolhouse Corp. v. Wood, 43 Conn. App. 586, 592, 684 A.2d 1191 (1996), cert. denied, 240 Conn. 913, 691 A.2d 1079 (1997) (following denial of motion to substitute, appeal dismissed due to absence of proper parties).

In the present case, the plaintiff was notified of the defendant’s death at the hearing on her motion for reargument. As soon as the plaintiff was made aware of that fact, she orally moved for a continuance for the purpose of filing a motion to substitute the defendant’s estate. The trial court denied the plaintiffs motion for a continuance, incorrectly instructing the plaintiff that a substitution was not necessary at that time.

In dismissing the plaintiffs appeal, the Appellate Court cited the plaintiffs failure to substitute. The plaintiff claims that the Appellate Court’s dismissal was improper because her failure to substitute the defendant’s estate resulted directly from the action by the trial court that was one of the grounds for her appeal to the Appellate Court. We agree.

The Appellate Court did not consider the merits of the plaintiffs appeal, in particular, her claim that the trial court’s denial of her motion for a continuance precluded her from filing a motion to substitute. Instead, the Appellate Court summarily dismissed the plaintiffs appeal on the basis of that failure to substitute. In so doing, the Appellate Court’s dismissal denied the plaintiff her opportunity to obtain judicial review of the trial court’s actions. We conclude, therefore, that the Appellate Court’s dismissal was an abuse of discretion. Moreover, the Appellate Court’s dismissal due to the plaintiffs failure to substitute was unjustified in light of the trial court’s erroneous admonition to the plaintiff that a substitution was not necessary and in light of the plaintiffs pending motion in the Appellate Court to cure any defect by substituting the appropriate fiduciary.

We further note that there was no prejudice to the defendant due to unfair delay or surprise. Warner v. Lancia, 46 Conn. App. 150, 157, 698 A.2d 938 (1997). In the trial court, immediately following the announcement by the defendant’s counsel of the defendant’s death, the plaintiff made a motion for continuance for the purpose of filing a motion to substitute. In the Appellate Court, the plaintiff filed a request for leave to substitute before briefs had been filed in the matter. Indeed, the statement of the defendant’s counsel at the Appellate Court hearing indicating that he would not object if the defendant’s cross appeal were dismissed as well due to the plaintiffs failure to substitute demonstrates the lack of prejudice. In the absence of any evidence of prejudice, we conclude that it was an abuse of discretion for the Appellate Court to have dismissed the plaintiffs appeal where the dismissal precluded the plaintiff from obtaining judicial review of one of her claims raised on appeal.

The judgment of the Appellate Court dismissing the appeal is reversed and the case is remanded to that court for further proceedings according to law.

In this opinion the other justices concurred.

       The defendant died on April 16, 1999. The record is silent as to when the defendant’s attorney first became aware of this fact. Neither the parties, nor the trial court, however, had been aware of the defendant’s death when the court rendered its judgment on July 7, 1999. Although the validity of the trial court’s judgment is not directly before us in this appeal, we note that the death of the defendant prior to the entry of judgment did not render the judgment void, but merely voidable. Hennessy v. Denihan, 110 Conn. 646, 648, 149 A. 250 (1930) (judgment entered against deceased defendant, in ignorance of death, not nullity).

       General Statutes § 52-599 (b) provides in relevant part: “If a party defendant dies, the plaintiff, within one year after receiving written notification of the defendant’s death, may apply to the court in which the action is pending for an order to substitute the decedent’s executor or administrator in the place of the decedent, and, upon due service and return of the order, the action may proceed.”

       The plaintiff raised eleven issues on appeal to the Appellate Court. The only issue relevant to the appeal before this court is her claim that the trial court improperly had denied her motion for a continuance.

       The plaintiff framed the issue, before both this court and the Appellate Court, as a claim that the trial court improperly had denied her request to substitute. This is a mischaracterization, as the plaintiff actually claimed impropriety in the trial court’s denial of her motion for a continuance, made for the purpose of filing a motion to substitute.

       Practice Book § 62-5 provides: “Changes in Parties
      “Any change in the parties to an action pending an appeal shall be made in the court in which the appeal is pending. The appellate clerk shall notify the clerk of the trial court, of any change.”

       General Statutes § 52-599 provides in relevant part: “(a) A cause or right of action shall not be lost or destroyed by the death of any person, but shall survive in favor of or against the executor or administrator of the deceased person.
      “(b) A civil action or proceeding shall not abate by reason of the death of any party thereto, but may be continued by or against the executor or administrator of the decedent. ... If a party defendant dies, the plaintiff, within one year after receiving written notification of the defendant’s death, may apply to the court in which the action is pending for an order to substitute the decedent’s executor or administrator in the place of the decedent, and, upon due service and return of the order, the action may proceed. ...”

       The trial court’s actions are not before us on this appeal. State v. Torrence, supra, 196 Conn. 433. We note, however, for purposes of reviewing the Appellate Court’s actions, that a substitution of aproper party was necessary. Barton v. New Haven, supra, 74 Conn. 730-31 (“[d]uring the interval . . . between the death and the revival of the action by the appearance of the executor or administrator . . . [t]he surviving party and the court alike are powerless to proceed”).

       As we noted previously, the plaintiff filed her appeal in the Appellate Court on August 20, 1999, and filed a motion for leave to substitute a representative of the defendant’s estate in that court on August 24, 2000. Thus, more than one year had elapsed between the plaintiffs filing of her appeal in the Appellate Court and her filing of a motion for leave to substitute in that court. Nevertheless, the statute of limitations for substituting parties had not yet expired. See footnotes 2 and 10 of this opinion. Therefore, although we note that the plaintiff should have been more prompt about filing a motion to substitute in the Appellate Court, that does not affect our analysis of the plaintiffs claim.

       The plaintiff filed a request for leave to substitute in the Appellate Court on the day before the hearing on that court’s sua sponte motion. The parties had not yet filed briefs on the merits of the appeal and the cross appeal because the Appellate Court had ordered a stay of briefing on the merits for thirty days following the issuance of notice of the court’s decision on its sua sponte motion.

       The defendant’s counsel argues that the Appellate Court properly dismissed the plaintiffs appeal because the plaintiff failed to file a motion to substitute within the one year time period required by § 52-599 (b) and failed to articulate good cause for that failure. Specifically, the defendant’s counsel argues that “actual” notice is sufficient to meet the requirements of § 52-599 (b), and that, although the plaintiff received actual notice of the defendant’s death on August 9, 1999, at the hearing on the plaintiffs motion for reargument, the plaintiff did not file, in the Appellate Court, a motion for leave to substitute the defendant’s fiduciary until August 24, 2000. The defendant’s counsel contends, therefore, that the Appellate Court properly dismissed the plaintiffs claim for failure to substitute within one year of receiving actual notice of the defendant’s death. We disagree.
      We note that in 1987, the legislature amended § 52-599 (b) to require “written” notice, changing the date upon which the statute of limitations begins to toll from the date of the defendant’s death to the date upon which the plaintiff receives “written notification” of the defendant’s death. Public Acts 1987, No. 87-237; see Warner v. Lancia, 46 Conn. App. 150, 154, 698 A.2d 938 (1997) (detailing statutory history of § 52-599). Whether actual notice will suffice to trigger the statute is an issue, however, that we need not address. Notwithstanding her knowledge of the fact of the defendant’s death, the plaintiff had not been informed as to the actual date of death, the name of the defendant’s fiduciary, or the court of the fiduciary’s appointment. Therefore, the plaintiffs ability to substitute was hampered severely. In addition, the defendant’s counsel does not claim any prejudice from the failure of the plaintiff to meet the one year statutory time period. Furthermore, the defendant's counsel provides us with no reason to construe the one year requirement as a jurisdictional bar. See Williams v. Commission

        on Human Rights & Opportunities, 257 Conn. 258, 266-70, 777 A.2d 645 (2001). We have stated many times that, “[ijn light of the strong presumption in favor of jurisdiction, we require a strong showing of a legislative intent to create a time limitation that, in the event of noncompliance, acts as a subject matter jurisdictional bar. ” (Internal quotation marks omitted.) Banks v. Thomas, 241 Conn. 569, 583, 698 A.2d 268 (1997). Moreover, the fact that a court has the discretion to cite in a representative of the defendant’s estate after the expiration of the one year time period if good cause is shown for the delay further counsels against interpreting the one year time requirement in § 52-599 (b) as a jurisdictional bar. See Worden v. Francis, 170 Conn. 186, 188, 365 A.2d 1205 (1976); Dorsey v. Honeyman, 141 Conn. 397, 400, 107 A.2d 260 (1954). We conclude, therefore, that even if actual notice had been sufficient to trigger the time period set forth in § 52-599 (b), expiration of the time period was not a jurisdictional bar.