author: Shea, J. Glass, J.,

text:
    Beechwood Gardens Tenants’ Association et al. v. Department of Housing et al.
    (13860)
    Shea, Glass, Covello, Hull and Santaniello, Js.
    Argued January 30
    decision released April 10, 1990

      James J. Perito, with whom was Michael Susman, for the appellants (defendant Beechwood Gardens Limited Partnership et al.).

      Frank Cochran, for the appellees (plaintiffs).
   Shea, J.

In this appeal from a declaratory ruling of the department of housing (DOH) approving the legality of a rent increase for a moderate rental housing project located in New Haven, the trial court held the increase invalid for failure to comply with the requirements of § 8-79a-15 of the Regulations of Connecticut State Agencies. The appeal from the DOH ruling had been taken to the Superior Court by the plaintiffs, Beechwood Gardens Tenants' Association and seven tenants of the apartment complex affected by the increase. The defendants, Beechwood Gardens Limited Partnership and the individuals who comprise that partnership, Thomas Johnson and Wendell Harp, have appealed from the judgment sustaining the appeal, claiming that the trial court erred in applying § 8-79a-15 to a rent increase that had been approved by DOH before the defendants had made their investment in the property. We find error and remand the case with direction to dismiss the appeal.

The subordinate facts are not presently disputed. Beginning in late 1983, the defendants Johnson and Harp submitted applications to DOH with respect to a privately owned apartment complex of eighty-two units in New Haven for the purpose of converting it into a moderate rental housing complex pursuant to General Statutes §§ 8-69 through 8-74. The final application, submitted on September 19, 1984, proposed renovation of all apartment units for energy conservation and, for eighteen units, to provide access to the handicapped. The estimated completion date for the improvements was February 1,1986, and the projected rent upon completion of the renovations was $465 per month for each apartment.

On December 1, 1984, the individual defendants formed the defendant partnership, which was to purchase the apartment complex, known as Beechwood Gardens, and complete the project. On the same date the partnership submitted its “project financing plan and development budget” to DOH pursuant to General Statutes § 8-74. Attached to this document were two “project management” plans estimating annual income and expenses. The first estimate of yearly rental income of $326,400, was based upon a monthly rent of $425 for each of sixty-four units. This monthly rent, according to testimony at the DOH hearing, would be established while the planned renovations were being completed, it being contemplated that eighteen of the eighty-two apartments would not be occupied during this period. The second estimate of yearly rental income was $457,560, based upon a monthly rental of $465 for each of eighty-two units. According to the testimony at the hearing, this monthly rent was intended to be implemented upon substantial completion of the project. The documents submitted to DOH were approved on December 21, 1984.

. After obtaining this approval, the partnership purchased the Beechwood Gardens apartment complex and, on April 9,1986, substantially completed the proposed renovations. By a letter dated March 24, 1987, DOH permitted implementation of the $465 monthly rental upon execution of some additional documents. After these were submitted to DOH, the partnership notified all tenants of Beechwood Gardens that the monthly rent would be increased to . $465, effective August 1, 1987.

The plaintiffs filed a request with DOH for a declaratory ruling invalidating the rent increase. After a hearing, DOH on February 10,1988, issued a final decision in favor of the defendants, in which it was found that “during the development stage of this project, a rent of $465 per month had been approved by [DOH] to be implemented upon the final completion of the project.” The plaintiffs appealed from this decision seeking its reversal and other relief.

The trial court accepted the factual finding of the DOH hearing officer with respect to approval by DOH of the $465 monthly rent upon completion of the “development stage” of the project. The court concluded, nevertheless, that compliance with § 8-79a-15 of the regulations was mandated for implementation of the increase in rent from $425 to $465, even though DOH had previously approved the $465 rental charge to be effective upon completion of the project. Judgment was rendered sustaining the appeal.

The defendants have appealed from the judgment, claiming essentially that § 8-79a-15 is inapplicable to a rental increase that was endorsed by DOH as part of its approval of the entire project before the defendants had made their investment in it. The plaintiffs, presumably as an alternate ground upon which to sustain the judgment, have attacked the finding of the hearing officer concerning prior DOH approval of the $465 rental charge, maintaining that it is unsupported by the evidence, despite the trial court’s acceptance of that finding.

I

The regulation relied on by the trial court, § 8-79a-15, specifies certain procedures to be “followed by all developers for any proposed rent increases.” A thirty day written notice of the proposed change in rent must be mailed to all tenants informing them also of the date and time of a meeting at which the increase is to be considered. Tenants may submit written comments and may also attend and express their views at the meeting. When the developer applies to DOH for approval of the rent increase, these tenant comments must also be submitted. Following DOH approval of the increase, the developer must give at least thirty days written notice prior to the effective date of the increase.

The defendants concede that they never complied with this regulation but point out that its applicability is limited to “any proposed rent increases.” (Emphasis added.) The quoted phrase, they contend, does not include implementation of a change in a rent schedule previously approved by DOH. They also maintain that the trial court should have deferred to the DOH interpretation of the regulation as not applicable to the $465 rental charge.

The trial court, in interpreting the regulation to apply to all increases in rent, including those approved at the time the project was authorized, relied upon (1) “the plain meaning of the language of that regulation”; (2) the provision of General Statutes § 8-72 that rents be fixed “at the lowest possible rates”; and (3) General Statutes § 8-74 (3), requiring that a developer submit annual budgets. The plaintiffs advance the samearguments.

Because § 8-79a-15 refers only to “any proposed rent increases,” (emphasis added) the “plain meaning of the language” that the court relied on is not sufficiently clear to resolve the controversy before us simply on that basis. As the defendants maintain, the $465 rental charge had been approved on December 21, 1984, as part of the plan for the entire project to take effect upon its completion. Approval by DOH of the “proposed rents” is a prerequisite to developing a moderate rental housing project and must be obtained when the project is authorized. General Statutes § 8-74 (3). Subparagraph (a) of the regulation requires notice that “a change in the rent schedule” is to be considered by the developer “and may result in a rent increase.” The schedule of rents submitted to DOH at the time of project approval, which showed the $465 rent for the eighty-two apartment units after completion, was not changed simply by imposition of a rental charge in accordance with that schedule. From the grammatical viewpoint, whether the reference to “any proposed rent increases” should include implementation of a previously approved rental increase is less than “plain,” as the court assumed.

The court found support for its interpretation in the provision of § 8-72 declaring that “[e]ach developer . . . shall manage and operate its housing projects in an efficient manner so as to enable it to fix the rentals for dwelling accommodations at the lowest possible rates consistent with providing decent, safe and sanitary dwelling accommodations . . . . ” The fact that the initial rent was set at $425 per month while renovations were being completed, the “lowest possible” rate as determined by DOH in accordance with the statute, was regarded by the court as an indication that no higher rent was necessary. The assumption of the court that the $425 approved as the “lowest possible” rent during the renovation period would also be the appropriate rent afterward, however, ignores the finding of the DOH hearing officer that the $425 rental was adequate during renovations “due to certain costs being covered by the construction loan prior to full completion” and that “the higher amount was not necessary” for that period. At the hearing there was testimony that during the rehabilitation phase of the project taxes and insurance were paid from the construction loan, and that loan interest charges were less than upon completion, when all of these expenses had to be paid from rental income. The court does not appear to have rejected the finding of the hearing officer, nor could it have done so in view of the supporting testimony. Accordingly, there is no basis for its conclusion that the rent established for the development stage should necessarily prevail upon completion of the project.

The court also referred for support of its interpretation to a provision of General Statutes § 8-74 (3) requiring a developer to submit for DOH approval “its rent schedules . . . and any changes therein and its proposed budget for each fiscal year, together with such reports and financial and operating statements as the commissioner finds necessary.” The plaintiffs argue that the purpose of this provision for annual DOH review of budgets would be undermined if the agency were permitted to approve future rent increases as part of the original project approval.

We are not persuaded that the provision for annual review of proposed budgets was intended to limit DOH at the time a project is approved to setting only rental charges that are to become effective immediately. Such annual surveillance of moderate rental housing projects with respect to financial operation serves many purposes, such as enforcement of rental charges previously approved, controlling various expenses, and generally safeguarding the continued financial viability of the projects, in which the state has a substantial interest as a mortgage lender. DOH may well have decided that it was necessary to approve rental charges to become effective after completion of the planned rehabilitation so that investors would have some assurance of the ultimate income that the project would generate. New would be inclined to invest in a project without being able to calculate with reasonable confidence the return likely to be realized. Nothing in § 8-74 can reasonably be construed to preclude DOH from establishing a lower rent for the development stage of a project, when tenants may be greatly inconvenienced by construction operations and not all of the costs must be paid from rental income, and a higher rent upon completion of the work, when these conditions have changed.

We conclude that the trial court erred in interpreting § 8-79a-15 of the regulations to apply to the implementation of a rental charge that had been approved by DOH when the project was first authorized but was not to take effect until completion of the project.

II

In attacking the finding of the DOH hearing officer that approval of the $465 rent upon completion was included in the DOH authorization of the entire moderate rental project on December 21,1984, the plaintiffs contend that there is no substantial evidence to support that finding. They maintain that the signature of the deputy commissioner indicating approval on that date of the “project financing plan and development budget” does not signify approval of the proposed rent of $465 for the eighty-two apartment units upon completion. The hearing officer could reasonably have found otherwise, however, since the $465 proposed rent was indicated in several other documents contained with the “project financing plan and development budget” in the defendants’ final proposal, which was approved on that date. Section 8-74 requires approval of the “proposed rents” as one of the prerequisites for development of any moderate rental housing project and it must be presumed that public officials have performed their statutory duties, in the absence of substantial evidence to the contrary. Bowman v. 1477 Central Avenue Apartments, Inc., 203 Conn. 246, 254-55, 524 A.2d 610 (1987). “Public officers, acting in their official capacity, are presumed, until the contrary appears, to have acted legally and properly.” Brookfield v. Candlewood Shores Estates, Inc., 201 Conn. 1, 6, 513 A.2d 1218 (1986).

The plaintiffs also refer to a document obtained from the DOH file after the decision of the hearing officer indicating approval of $425 as the rent for eighty-two units on March 5,1985, following the project approval on December 21, 1984. There is no reference to this document in the memorandum of decision, nor do the plaintiffs claim that it was ever called to the attention of the trial court. The plaintiffs have attempted to import this document into the record by attaching it to an affidavit filed while this appeal from the judgment of the trial court was pending, claiming that it was admitted into evidence at a later DOH hearing on some unspecified matter. The statute governing this administrative appeal, however, specifies that “[t]he appeal shall be conducted by the court without a jury and shall be confined to the record.” (Emphasis added.) General Statutes (Rev. to 1987) § 4-183 (f). The plaintiffs never attempted to enlarge the record by requesting the trial court to order further proceedings for taking additional evidence pursuant to General Statutes (Rev. to 1987) § 4-183 (e). The plaintiffs are, therefore, necessarily limited in this appeal to the evidence presented at the DOH hearing and cannot be permitted to rely upon matters never called to the attention of any trier of fact. The factual issue they seek to raise for the first time on appeal cannot be adequately explored at this stage of the proceeding.

We conclude that there is sufficient evidence in the record to sustain the finding that the $465 rent had been approved by DOH as part of the project authorization on December 21, 1984, to become effective on completion of the project.

There is error, the judgment is set aside and the case is remanded with direction to dismiss the plaintiffs’ appeal.

In this opinion Covello, Hull and Santaniello, Js., concurred.

Glass, J.,

dissenting. Because I believe that the majority opinion establishes an unwarranted precedent by sanctioning a procedure that allows a developer of a moderate rental housing project to increase rents by not complying with the spirit if not the letter of § 8-79a-15 of the Regulations of Connecticut State Agencies, I dissent.

I accept the analysis of the regulation as set forth in the majority opinion. Under § 8-79a-15, the tenants have a right to a thirty day written notice that a change in the rent schedule will be considered by the developer at its next meeting. The tenants, during the thirty day period, have a right to submit written comments to the developer and review any documents supporting the proposed rent increase, which will be on file at the office of the developer or management agent. The tenants may attend the noticed meeting and make comments about the proposed rent increase. Furthermore, within fifteen days of the written noticed meeting, the developer must submit to the department of housing (DOH) its recommended management plan plus all of the comments of the tenants. Within thirty days after receipt of the developer’s recommendation, the DOH must approve, disapprove or request modification of the rent increase or any portion of it. If the rent increase is approved by DOH, the developer must give the tenants at least thirty days written notice prior to the effective date of the rent increase. Thus, it must be stressed from the outset that this case has nothing to do with the merits of the determination of whether a developer’s request for a rent increase should be granted. Rather, this case only concerns a developer’s compliance with § 8-79a-15 as it pertains to a tenant’s right to notice and a hearing regarding rent increases.

The majority opinion recognizes that “[t]he defendants concede that they never complied with this regulation but point out that its applicability is limited to ‘any proposed rent increases.’ (Emphasis added.)” The quoted phrase, the defendants contend, and the majority agrees, does not include implementation of a change in a rent schedule previously approved by DOH. Apparently, however, DOH had some misgivings about the developers’ noncompliance with the regulation because on March 24,1987, Michael T. Duffy, senior director, management division of DOH, wrote a letter to Wendell C. Harp, general partner of Renaissanee Beechwood Gardens. Among other matters discussed in his letter, Duffy stated: “In order to complete our files, we are enclosing a project management plan for 82 units at a rental charge of $465. Until this time, this document had not been fully executed. This requires your local execution and should be returned to this Department for approval. This approval will be retroactive to April 1986. However, this rent of $465 cannot be charged to any current tenants until they receive thirty (30) days notice (no sooner than May 1, 1987) of this rental change.” In sum, the DOH belatedly suggested that the developers could be rescued from noncompliance by the execution of a project management plan for eighty-two housing units at a rental charge of $465, as the DOH indicated that its approval would “be retroactive” to April, 1986. According to another letter, dated March 31,1987, from Duffy to Harp, a “fully executed Management Plan [became] effective April 9, 1986.”

Thus, this “retroactive” approval of the developers’ management plan enabled the developers to circumvent § 8-79a-15 of the regulations. Clearly, § 8-79a-15 of the regulations does no more than give the tenants of a moderate rental housing project an opportunity to have their views considered in the determination by DOH as to whether it should approve or disapprove a proposed rental increase by a moderate rental housing project developer. Giving the tenants a right to be heard does not compel disapproval of the developer’s proposal. Presumably, DOH will determine the matter on its merits. Nonetheless, the majority concludes “that the trial court erred in interpreting § 8-79a-15 of the regulations to apply to the implementation of a rental charge that had been approved by DOH when the project was first authorized but was not to take effect until completion of the project.”

This determination by the majority allows a moderate rental housing project developer to bank and stack rent increases in the developer’s application and thus completely bypass the tenants’ right under § 8-79a-15 to have their views considered in conjunction with the proposed rent increase. To the poor tenant, I am unpersuaded that there is difference between “any proposed rent increase” and a “previously approved rental increase.” The tenant pays more money regardless of the characterization of the “rent.” It is significant to note that a letter dated June 24,1987, sent by Bruce Lebow, senior property manager of Beechwood Gardens, to give notice to the tenants about their future rent, characterized the action as follows: “Notice of rent increase effective August 1,1987 and requirement for execution of apartment lease.” Thus, if the tenants were being notified of a previously approved rent, it is mysterious as to why it would be characterized as a “notice of rent increase.”

In addition, by endorsing the procedure used by the developers to circumvent the spirit if not the letter of § 8-79a-15, the majority speculates on the inducements for investors to place capital into moderate rental housing projects. The majority states: “DOH may well have decided that it was necessary to approve rental charges to become effective after completion of the planned rehabilitation so that investors would have some assurance of the ultimate income that the project would generate. New would be inclined to invest in a project without being able to calculate with reasonable confidence the return likely to be realized. Nothing in § 8-74 can reasonably be construed to preclude DOH from establishing a lower rent for the development stage of a project, when tenants may be greatly inconvenienced by construction operations and not all of the costs must be paid from rental income, and a higher rent upon completion of the work, when these conditions have changed.” In my view, however, § 8-79a-15 is a consumer-oriented regulation. It gives a tenant a minimum input in a moderate rental housing project rent increase decision. I am unable to discern any need to speculate about the inducements for investment in moderate rental public housing. Moreover, I do not understand, and the majority leaves it unexplained, as to how allowing tenants some input in a rent increase decision in a government controlled moderate rental housing project will, somehow, discourage investors. Certainly there is no demonstrated need to shield the investor-developer from the tenant-consumer. Furthermore, although I am unable to draw a definitive inference from DOH’s failure to join in this appeal, in my view, it is indicative of DOH’s acceptance of the trial court’s construction and application of § 8-79a-15.

In sum, I do not believe that the construction of § 8-79a-15 given by the majority is warranted. The majority’s construction of this regulation sanctions a moderate rental housing project developer’s action of banking and stacking rent increases in the project application, thereby emasculating the tenants’ right to a hearing and to notice under § 8-79a-15. I therefore dissent.

       “[Regulations of Connecticut State Agencies] Sec. 8-79a-15. Rent increase
      “The following procedures shall be followed by all developers for any proposed rent increases: These regulations do not apply to rent increases based on circumstances such as family income or composition.
      “(a) A 30 day written notice mailed to all tenants that a change in the rent schedule will be considered by the developer, at its next meeting, (include the date and time of the meeting) and may result in a rent increase.
      “(b) Advise tenants that they may submit written comments to the developer within the 30 day period, and that they may review any documents supporting the proposed rent increase which will be on file at the office of the developer. Also, tenants may attend the meeting and make comments at that time.
      “(c) At the end of the 30 day period, the developer shall submit within 15 days to the commissioner, its recommended management plan plus all tenant comments.
      “(d) Within 30 days after receipt of the developer’s recommendation the commissioner will approve, disapprove, or request modification of the rent increase or any portion thereof.
      “(e) If the rent increase is approved by the commissioner, the developer must then give the tenants at least 30 days written notice prior to the effective date of the rent increase.”

       The department of housing, which was a party to the appeal in the trial court, has not appealed from the judgment.

       In the trial court the plaintiffs claimed that the hearing officer was disqualified because of his prior involvement with the Beechwood Gardens project as an agency employee. The trial court, after hearing evidence on this issue, concluded that this prior involvement was not substantial and rejected the claim of disqualification. The plaintiffs do not contest that determination in the appeal to this court.

       The only issues set forth in the preliminary statement of issues filed by the plaintiffs as appellees pursuant to Practice Book § 4013 (a) (1) are: (1) whether the trial court correctly determined that compliance with § 8-79a-15 of the Regulations of Connecticut State Agencies was required before the $465 rental charge could be effective; and (2) whether the appeal to this court “is without substantial justification so that counsel fees should be awarded pursuant to [General Statutes] § 4-184a.” Our reversal of the judgment is a sufficient response to the latter claim. Because the defendants claim no prejudice from the failure to include a challenge to the findings of the hearing officer in the plaintiffs’ preliminary statement of issues, and have filed a reply brief responding to the plaintiffs’ attack upon the finding, we consider this belatedly raised issue on the merits. See Practice Book § 4013 (a) (1) and (b).

       In concluding that the trial court’s interpretation of § 8-79a-15 of the Regulations of Connecticut State Agencies was erroneous, we are not persuaded that the court disregarded the principle of judicial deference to interpretations of statutes and regulations made by agencies charged with their enforcement. See E.I.S., Inc. v. Board of Registration, 200 Conn. 145, 148-49, 509 A.2d 1056 (1986). The memorandum of decision acknowledges this principle, but properly notes that the degree of such deference is limited when there is no record of consistent agency practice in regard to the particular regulation relied upon, as in this case.

       General Statutes § 8-72 provides in part as follows: “Each developer or housing authority shall manage and operate its housing projects in an efficient manner so as to enable it to fix the rentals for dwelling accommodations at the lowest possible rates consistent with providing decent, safe and sanitary dwelling accommodations, and no housing authority or nonprofit corporation shall construct or operate any such project for profit. To this end an authority or a nonprofit corporation shall fix the rentals for dwelling in its projects at no higher rates than it finds to be necessary in order to produce revenues which, together with all other available money, revenues, income and receipts of the authority or nonprofit corporation from whatever sources derived, will be sufficient (a) to pay, as the same become due, the principal and interest on the bonds of the authority or nonprofit corporation; (b) to meet the cost of, and to provide for, maintaining and operating the projects, including the cost of any insurance, and the administrative expenses of the authority or nonprofit corporation; provided nothing in this section shall be construed as prohibiting any authority or nonprofit corporation from providing for variable rentals based on family income. In the operation or management of housing projects an authority or nonprofit corporation shall, at all times, rent or lease the dwelling accommodations therein at rentals within the financial reach of families of low income. The authority or developer, subject to approval by the commissioner of housing, shall fix maximum income limits for the admission and for the continued occupancy of families in such housing, provided such maximum income limits and all revisions thereof for housing projects operated pursuant to any contract with any agency of the federal government shall be subject to the prior approval of such federal agency.”

       General Statutes § 8-74 provides in part as follows: “No moderate rental housing project shall be developed until (1) the housing authority or, in the case of a developer, the commissioner of housing has held a public hearing which has been advertised in a newspaper having a circulation in the municipality or municipalities concerned at which hearing the question of the suitability of the proposed site may be raised, taking into consideration, among other matters, the nature and character of the area and neighborhood involved; (2) the commissioner of housing has approved the site, after having given due consideration to the public hearing, the plans and layout and the estimated cost of development, and (3) the commissioner has approved the proposed methods of financing, the proposed rents and income limits for admission and continued occupancy and a detailed estimate of the expenses and revenues thereof. During the period of any grant or loan contract entered into under part I or III of this chapter or this part, the developer shall submit to the commissioner for his approval its rent schedules and its standards of tenant eligibility and continued occupancy, and any changes therein and its proposed budget for each fiscal year, together with such reports and financial and operating statements as the commissioner finds necessary.”

       This affidavit was filed in support of the plaintiffs’ claim for attorney’s fees pursuant to General Statutes § 4-184a. See footnote 4, supra.

       General Statutes (Rev. to 1987) § 4-183 (f) provides as follows: “The appeal shall be conducted by the court without a jury and shall be confined to the record. In cases of alleged irregularities in procedure before the agency, not shown in the record, proof thereon may be taken in the court. The court, upon request, shall hear oral argument and receive written briefs.”

       General Statutes (Rev. to 1987) § 4-183 (e) provides as follows: “If, before the date set for hearing, application is made to the court for leave to present additional evidence, and it is shown to the satisfaction of the court that the additional evidence is material and that there were good reasons for failure to present it in the proceeding before the agency, the court may order that the additional evidence be taken before the agency upon conditions determined by the court. The agency may modify its findings and decision by reason of the additional evidence and shall file that evidence and any modifications, new findings, or decisions with the reviewing court.”

      DOH regulations require a 2% surcharge for tenants whose income exceeds the Moderate Income Guidelines.”

       “Mr. Wendell C. Harp
      General Partner
      Renaissance Beechwood Gardens Management, Inc.
      74 Dwight Street
      New Haven, CT 06511
      Dear Mr. Harp:
      Re: Meeting at Department of Housing on February 18, 1987 and subsequent meeting at Beechwood Gardens on March 10, 1987.
      This letter contains important issues that must be addressed by the Management of Beechwood Gardens in order to assure conformity to State regulations and procedures. The Department appreciates meeting with you to address these issues. We feel that these meetings were very helpful and much was accomplished. However, we expressed our strong concern with regard to the management operations of this complex. The following is a reiteration of the discussions that took place during our meetings and our directives on the actions we want you to pursue.
      Financial Statements
      No management financial statements had been completed as of February 18, 1987. However, subsequent to that date a staff member from our accounting section has met with your accountant and financial statements through December 31,1986 were received February 24, 1987. We expect that the financial statements for March 31,1987 will be submitted in a timely fashion. As we pointed out, these statements are critical to Department of Housing for review of the operation and financial status of your complex.
      Rents/Management Plan
      It was determined during our post-occupancy review that the rental being charged to all new tenants and for those tenants occupying the 18 rehabilitated units was $465. You indicated during the meetings that it was your understanding that the $465 rental charge was approved during the development stage for all of the units. It was acknowledged that this rent charge was an issue to be determined after reviewing our files.
      It has been determined through a review of our files that you had submitted a management plan for development and 2 project management plans for operations. One of the project management plans was for 64 units at $425 which would be used during the construction phase of the complex. The other project management plan for operations, which you submitted, was for 82 units at $465 which would be used at time of completion of the complex. Since it was your understanding that both these project management plans were approved, you implemented the rental charge of $465 as of April 1986. It was also determined during our March 10,1987 meeting that currently those tenants that have been residents of the complex all along are not being charged the $465 rent. In order to complete our files, we are enclosing a project management plan for 82 units, at a rental charge of $465. Until this time, this document had not been fully executed. This requires your local execution and should be returned to this Department for approval. This approval will be retroactive to April 1986. However, this rent of $465 cannot be charged to any current tenants until they receive thirty (30) days notice (no sooner than May 1,1987) of this rental change.
      In order to submit a new management plan, due process must be performed by the management of the complex. That is, if you would like to propose a rental increase above the $465, you would have to execute the following procedures:
      (1) A 30 day written notice mailed to all tenants that a change in the rent schedule will be considered by the developer at its next meeting, (including the date and time of the meeting) and may result in a rent increase.
      (2) Advise tenants that they can submit written comments to the developer within the 30 day period, and that they may review any documents supporting the proposed rent increase which will be on file at the office of the developer or management agent. Also, tenants may attend meeting and make comments at that time.
      (3) At the end of the 30 day period, the developer shall submit within 15 days to the Department its recommended management plan plus all tenant comments.
      (4) Within 15 days after receipt of the developer’s recommendation, the Department will approve, disapprove or request modification of the rent increase or any portion thereof.
      (5) If the rent increase is approved by the Department, the developer must then give the tenants at least 30 days written notice prior to the effective date of the rent increase.
      Therefore, the management plan which you recently submitted could not be considered at this time. Once you have revised this management plan based upon the information in this letter and once you have followed the above procedure, please submit a new management plan for review and approval.”
      You also requested whether you could have the fee waived until the final audit. Our regulations are clear that the management fee will begin at the time a Certificate of Occupancy is issued.
      Post-Occupancy Review (dated February 5, 1987)
      During our meeting of 3-10-87 you indicated that a response was sent to DOH dated January 11, 1987. However, in reviewing this letter, it is our feeling that this letter is in response to one sent to you on 12-12-86 from Michael Duffy with regard to a proposed management plan and rental increase. Although the post-occupancy review may have covered similar concerns, we ask that you respond directly to our post-occupancy review at your earliest convenience.
      We hope that the above will resolve any past or current concerns with regard to the management of Beechwood Gardens. We also hope that the management of Beechwood Gardens will be strengthened to prevent similar gaps in implementing state rules and regulations in the future. With continuous communications between Beechwood Gardens and this Department, a good working relationship may be established. If we can be of any further assistance, please contact this office at 566-3329.
      Very truly yours,
      [s] Michael T. Duffy
      Senior Director
      Management Division”

       “June 24, 1987
      Mr. Kevin Mullane
      600 Whalley Avenue New Haven, CT 06511
      Re: Notice of rent increase effective August 1, 1987 and requirement for execution of apartment lease
      Dear Mr. Mullane:
      Effective as of August 1,1987 the required* lease rent for your apartment will be $465 (four hundred sixty five dollars) per month. If you are renting a garage the cost will be $20 per month for the garage rental. The subject increase is being executed in conformity with applicable department of housing regulations. Additionally, you are required to execute a one year lease effective as of the August 1,1987 date. In accordance with the provisions of the lease you must provide evidence of income from your employer. Accordingly we request that you obtain a statement on your employer’s letterhead stating your current annual income.

        It has been a pleasure having you as a Beechwood tenant and I look forward to your continued tenancy. I will contact you in the near future concerning a date for execution of your lease.
      Sincerely,

        Isl Bruce Lebow
      Senior Property Manager”


source: Caselaw Access Project

author: Arthur H. Healey, J.

license: Public Domain

text:
    Emery J. Vajda v. Anthony A. Tusla, Jr., et al.
    (13723)
    Peteks, C. J., Healey, Shea, Glass and Hull, Js.

      Argued January 3
    decision released April 10, 1990

      Lawrence L. Connelli, for the appellant (defendant Diane M. Tusla).

      Robert R. Sheldon, with whom, on the brief, was T. Paul Tremont, for the appellee (plaintiff).
   Arthur H. Healey, J.

The plaintiff, Emery J. Vajda, brought this action for damages resulting from injuries and losses he sustained when a motorcycle he was operating collided with an automobile operated by the defendant Diane M. Tusla (defendant). The jury, through interrogatories, found that the plaintiff was 25 percent negligent and the defendant 75 percent negligent. It further found that the total amount of damages sustained by the plaintiff was $200,000 and it, therefore, rendered a verdict of $150,000 under the doctrine of comparative negligence.

The defendant thereafter filed a motion to set aside the verdict alleging a number of errors by the trial court. The trial court denied the motion on every ground advanced. This appeal followed. On appeal, however, the defendant has presented only one issue for our review. Her sole claim is that the trial court erred in failing to charge the jury as she orally requested with regard to comments made by the plaintiff’s counsel during his argument when, referring to an anesthesiology bill, that had been admitted into evidence, which was for $311.50 for two hours of anesthesia, counsel suggested to the jury that relief from pain was worth $150 per hour.

The defendant focuses on the following portion of the plaintiff’s argument: “Nobody pays for pain. Now how do you measure what he should get because he has pain? You see the problem? It’s a problem. It’s difficult, difficult. The only thing you’ll notice in this case, you’ll notice when you go through the bills, that Jimmy has incurred One Thousand Eight Hundred Dollars ($1,800) for anesthesiology. And you’ll see that what he’s incurred is a hundred and fifty dollars ($150) an hour on one bill to be relieved of pain. That’s about the only time, I guess, if you think about it, that we sort of measure the value of pain and suffering, because I think all of us, whether it’s going to the dentist or having an operation, or perhaps buying some sort of pain medication. But generally, when you look at those bills, that’s about the only time that we sort of pay to be free from pain and suffering.”

During the recess after the plaintiffs argument and prior to the defendant’s argument, the defendant’s counsel objected to the plaintiff’s counsel “mentioning that a hundred and fifty dollars ($150.00) an hour is the only price, so far, that has been put on the relief of an hour’s worth of pain, smacks of suggesting a figure and/or a formula which is precisely why the Connecticut Supreme Court ruled as it did last week on the cases [Carchidi v. Rodenhiser, 209 Conn. 526, 551 A.2d 1249 (1989), and Pool v. Bell, 209 Conn. 536, 551 A.2d 1254 (1989),] that were appealed with regard to mentioning a money figure to the jury both as an opinion; and mentioning a money figure to the jury with regard to a formula . . . but I would move that the Court, prior to my argument, issue a brief instruction to the jury that a figure suggested by Mr. Tremont is in no way indicative, and should not be considered by them as an appropriate amount or suggestion as to what an hour’s worth of pain or suffering or whatever is worth.” He continued: “And also, it’s misleading because what’s going on in a surgical procedure, where you’re opening up a part of the body, and removing bone or removing scar tissue is not the same sort of thing that Mr. Vajda testified to here in the courtroom. And it’s awfully misleading to the jury for them to have thrown out to them, during a closing instruction, a figure about what an hour’s worth of pain is worth in the sort of context.”

The plaintiff’s counsel responded, arguing “I don’t believe that the [Supreme Court] decision says that you cannot mention pain . . . [and] suffering . . . .’’In further response to the defendant’s argument that his comments equated $150 an hour to one hour’s worth of pain, plaintiff’s counsel continued stating that the fact is “[t]he stuff is in evidence, and there’s a three hundred and eleven dollar ($311.00) bill for two hours of anesthesia.” Maintaining that he did not think of it as a formula nor did he suggest a formula to the jury, he said that “I’m saying that this is one of the few times in our life that we actually pay to be free of pain.” Stating that he had been careful in his argument to avoid including comments that suggested “any formula to [the jury] whatsoever, or any figure,” he contended that no instruction was needed as the defendant claimed.

The defendant’s counsel, in reply, stated that what the plaintiff’s counsel “was trying to do was to subliminally inject into [the jury] what an hour’s worth of pain is worth,” and he repeated that this was why this court ruled in Carchidi and Pool as it did. In further attacking these comments of the plaintiff’s counsel, he again argued that “an hour’s worth of surgery is not the same thing” as one hour’s worth of pain. To support further his claim that the plaintiff was “suggesting [to the jury] what they should do in the area of damages,” he referred to the comment by the plaintiff during argument that, based upon the plaintiff’s stipulated life expectancy of 45.7 years, the jury would have “to compensate [the plaintiff for forty-five-point-seven years for every minute and every hour for the rest of his life.”

The trial court indicated that it would take the matter under advisement and that if it did anything, it would be done during its final charge to the jury. The trial court did not give the jury any instructions until after the arguments were concluded. The defendant’s counsel took no exception to the trial court’s decision not to give an instruction at the time of the arguments.

At the outset of its final jury instructions, the trial court admonished the jury that “in deciding this case, you must only consider that information which was admitted as evidence in this courtroom.” On the issue of damages as to physical and mental pain and suffering, the trial court charged, inter alia: “The rule of damages is that insofar as money can do it, the Plaintiff is to get fair, just and reasonable compensation for the injuries which he has suffered. It is for you, ladies and gentlemen, in the exercise of your best judgment, to say what is fair and just compensation. You have to apply sound common sense in reaching the amount of your verdict. There is no mathematical formula, no formula, other than by human experience; and the exercise of your best judgment of what is fair and just compensation. . . . You must not speculate or guess as to damages. You must bear in mind at all times that the burden is on the Plaintiff to prove that [it] was a proximate consequence or the result of the incident which caused the injuries; and to prove the reasonable amount of his damages.” The trial court thereafter told the jury that the elements of damages could be separated into two major categories: the first from the date of injury on June 29,1984, to the date of the trial, and the second, as to the future. As to the former, it told the jury that it could award a sum “which will reasonably compensate him for any past physical suffering” as well as damages “for mental suffering that he has experienced.” After instructing the jury to consider the effects of the plaintiffs injuries “and the resulting pain that he has experienced; and the effect it has had on his daily activities,” it said that “[a]s far as money can compensate him for this aspect of the case, you must award a fair, just, and reasonable sum.” Immediately thereafter, it said: “Obviously, this is a difficult matter to determine. There are no objective guidelines by which you can measure the money equivalent of these elements of injury. The only real measuring stick, if it can be so described, is your collective enlightened judgment. In making your determination, you should consider all the relevant evidence; taking into consideration the extent and the duration of such pain and suffering. In this respect, you may consider the testimony of the Plaintiff, the Plaintiffs girlfriend, and the doctor. The amount you award for this aspect of the damages must be fair and reasonable.”

Turning to damages for the future, the trial court said, inter alia: “As for the future, you must as best you can, compensate him for such results as are reasonably probable. Once this case is concluded, the Plaintiff cannot come back into Court and — in the future for additional damages against the Defendant for the incident in question. So any award to which he is entitled for the future, must be given to him now. Future damages are not a matter of speculation. It is not a matter of guesswork. You must be satisfied with a reasonable degree of certainty that the result which you are attempting to compensate him for is reasonably probable.” The jury was also instructed that it “must determine for how long into the future [the plaintiff] will suffer these damages.” Here, it referred to the evidence that the plaintiff had “sustained a twenty-five percent permanent disability to his forearm,” as well as that, according to the mortality tables, he had 45.7 years of life expectancy, the ramifications of which it explained fully.

Thereafter, the trial court also said: “In determining damages for the future, you should consider the physical pain and suffering he will endure, and the effects it will have on his daily activities. I realize that, for the future, this is even more difficult to evaluate than it was for that which has occurred before trial. However, you must award a fair, just, and reasonable sum for this aspect of the case, taking into consideration, where applicable, what I’ve had to say about these elements of damages for the period prior to trial.” After it had concluded its charge on damages, the court said: “[Cjounsel [have] commented on some of the evidence in their summations. I wish to stress to you that you are the sole judges of the facts. And if [your] recollection of the facts differs from mine or that of the attorneys, it is your recollection that controls.”

After the trial court had instructed the jury, the defendant’s counsel took the following exception: “I had requested yesterday at the conclusion of Attorney Tremont’s remarks, that Your Honor issue some sort of a supplemental charge or instruction to the jury that counsel’s mentioning of the one hundred and fifty dollar ($150.00) an hour figure was not to be considered by them in terms of evaluating an hour’s worth of pain and suffering.

“First, because I believe it violated Carchidi v. Rodenhiser and Pool v. Bell; both of which came down about a week or two ago.

“And secondly, because I believe it was misleading for him to say that one hundred and fifty dollars ($150.00) an hour is what the marketplace, so to speak, has put on an hour’s worth of pain and suffering, when that really was what it cost to anesthetize the Plaintiff during a surgical procedure. And that’s certainly not the same thing.”

In its memorandum of decision on the defendant’s motion to set aside the verdict, the trial court addressed the defendant’s claim that it had erred “by allowing plaintiff’s counsel to comment in final argument on the hourly rate an anesthesiologist charged in the context that those comments were made.” It noted the defendant’s argument that “Connecticut law prohibited [the plaintiff’s counsel] from suggesting a monetary figure to the jury which he believed they should award for damages; Carchidi v. Rodenhiser, [supra,] 530; [or] a monetary formula. Pool v. Bell, [supra,] 539.” Continuing, it also noted that during the plaintiff’s counsel’s argument he “proceeded to discuss the nature of pleasure by making reference to such things as attending the theater, to which the defendant did not object.” Turning to the anesthesiologist’s bill, the trial court observed, in its memorandum, that that bill included “a charge of $302 [sic] for 2 hours of service.” It said that “[surely], counsel [had] a right to comment on [this] bill which was a full exhibit and which itemized the charge of $302 [sic] for the 2 hours.” Not only did the plaintiff, the trial court said, have a right to argue the element of pain and suffering but in doing so, “he had a right to symbolically characterize the elements of pain and suffering just as he had a right to symbolically characterize pleasure.” Positing that Carchidi and Pool “must be put in their proper factual perspectives,” the trial court determined that “[n]either [of] the arguments in Carchidi and Pool [was] similar to those in this case.” It concluded its disposition of this claim by observing that “[c]arrying [Carchidi and Pool] further than their factual underpinnings would certainly deprive counsel, both for the plaintiff and [the] defendant, of effective use of final arguments which is an essential part of a jury trial.”

On appeal, the defendant claims that the excerpted portion of the plaintiffs summation is in direct contravention of our holdings in Carchidi and Pool. Here she claims that the challenged comments fall directly within the prohibitions of these decisions, particularly pointing to Pool, where we said that because we had concluded in Carchidi that counsel may not argue the pecuniary value of a plaintiff's personal injuries by suggesting specific sums to be awarded for such intangibles as pain and related disability, “it necessarily follows that counsel may not indicate the monetary components used to arrive at the sums suggested for such elements of damages.” Pool v. Bell, supra, 539; see Carchidi v. Rodenhiser, supra.

Damages may be awarded for pain and suffering, past, present and future, resulting from the injuries so long as the evidence affords a basis for a reasonable estimate by the trier of fact of the amount. Levin v. Ritson, 179 Conn. 223, 228, 425 A.2d 1279 (1979); Ball v. Pardy Construction Co., 108 Conn. 549, 551, 143 A. 855 (1928); Leabo v. Leninski, 2 Conn. App. 715, 727, 484 A.2d 239 (1984); see J. Stein, Damages and Recovery (1972) § 8. An award of damages for pain and suffering is peculiarly within the province of the trier of fact and the fact that it is difficult to measure pain and suffering in terms of money does not prevent a recovery for that element of damages. Manning v. Michael, 188 Conn. 607, 616, 452 A.2d 1157 (1982); Sadonis v. Govan, 132 Conn. 668, 670, 46 A.2d 895 (1946); Leabo v. Leninski, supra. Not only are damages for pain and suffering peculiarly for the trier of fact, but “[p]roper compensation [for pain and suffering] cannot be computed by a mathematical formula . . . there is no iron-clad rule for the assessment of damages.” Manning v. Michael, supra.

It is against this background that we decided Carchidi and Pool, both of which are factually distinguishable from this case. In Carchidi, we held that counsel could not, during closing argument, “state to the jury his belief as to the pecuniary value of the plaintiff’s personal injury claim . . . because [to do so] improperly influences the jury in arriving at a verdict.” Carchidi v. Rodenhiser, supra, 526-27. In that case, the plaintiff’s counsel sought and obtained permission, over the defendant’s objection, to argue to the jury a specific amount of money, $30,000, that the jury should return as a verdict. In ruling that he could do so, the trial court stated that “these suggestions could not be in combination with any mathematical formulae.” Id., 527. In Pool, the trial court permitted the plaintiff’s counsel in closing argument to use a blackboard to set forth a per diem mathematical formula for use by the jury in computing the damages to be awarded to the plaintiff. Pool v. Bell, supra, 537. We further observed in Pool that although Levin v. Ritson, supra, “drew a distinction between suggesting a sum to be awarded for pain and suffering and using a mathematical formula based on speculative factors,” because “our holding in Carchidi is applicable to both types of arguments”; id., 539; there was no need to decide whether our holding in Levin “left the use of mathematical formulae in closing argument to the discretion of the trial court, as that question is now academic.” Id., 540.

At the outset of our analysis, we take up the defendant’s threshold claim that the piaintiff’s argument violated our decisions in Carchidi and Pool. The plaintiff in this case, however, did not, as in Carchidi, state “to the jury his belief as to the pecuniary value of the plaintiff’s personal injury claim” during his argument. Carchidi v. Rodenhiser, supra, 526. Specifically, we determine that there was no violation of our statement in Carchidi that “the practice of mentioning the sum to be awarded to the plaintiff for pain and suffering constitutes an unwarranted intrusion into the domain of the jurors.” Id., 535.

In discussing our determination that Carchidi was not violated, we should point out that, in Pool, we noted that our holding in Carchidi was applicable to both types of arguments, whether based on a “lump sum” or on a mathematical formula. Moreover, in Pool, we commented upon the distinction we drew in Levin v. Ritson, supra, “between suggesting a sum to be awarded for pain and suffering and using a mathematical formula based on speculative factors.” Pool v. Bell, supra, 539. The plaintiff’s challenged argument was not one, reasonably understood, to have “suggest[ed] a sum to be awarded for pain and suffering.”

The challenged argument did not mention or suggest the sum to be awarded to the plaintiff for pain and suffering, and it did not imply any mathematical formula to be used by the jury to do so. It did, at its worst, imply that during the two hours he was subjected to the anesthesia, he was free of conscious pain and suffering, and the charge for that service, as indicated by the anesthesiologist’s bill, came to approximately $150 per hour. The challenged remarks could not be considered a suggestion, as the defendant claims in violation of our case law. It then follows that there was no mathematical formula suggested in the practical use of that term in the sense of the existence of a group of components in association to express a single concept, i.e., how to arrive at a dollar amount. This portion of the plaintiff’s argument was truly isolated in the sense that it stood alone in the argument; it contained nothing that the jury could conceivably have applied to the evidence to translate into a specific dollar amount. It hardly needs pointing out that there was no blackboard with the itemization of damages as in Pool nor the declaration by counsel of a specific sum for the value of the plaintiff’s personal injury claim as in Carchidi.

In the context of the defendant’s claim that the argument violated our case law, it is important to keep in mind the effect of this argument upon the jury whose province as factfinders was thereby allegedly intruded upon. This jury had seen and heard all of the evidence including the testimony of the plaintiff, his girl friend and the medical expert concerning, inter alia, pain and suffering. It also had the exhibits, including medical and hospital records, and, in addition, the evidence on the plaintiff’s life expectancy. Not only must the jury’s knowledge of the evidence be factored into assessing the effect, if any, upon them of the argument, but the common sense and human experience of the jury must also be considered. “Jurors are not ‘expected to lay aside matters of common knowledge or their own observation and experience of the affairs of life, but, on the contrary, to apply them to the evidence or facts in hand, to the end that their action may be intelligent and their conclusions correct.’ ” Frankovitch v. Burton, 185 Conn. 14, 22, 440 A.2d 254 (1981); Champagne v. Raybestos-Manhattan, Inc., 212 Conn. 509, 545, 562 A.2d 1100 (1989). “Jurors have the right to apply their own common sense and to use the general knowledge they have in common with the rest of mankind.” Noland v. Sears, Roebuck & Co., 207 Kan. 72, 76, 483 P.2d 1029 (1971). “[Tjrials do not take place in a vacuum and justice correctly relies on the common sense and common experience of jurors.” Malvicini v. Stratfield Motor Hotel, Inc., 206 Conn. 439, 448, 538 A.2d 690 (1988). The jurors could not reasonably have understood this argument as a “suggestion” or the “mentioning” of a sum to be awarded for pain and suffering because the court’s instructions could reasonably have been interpreted to apply only to any conscious pain and suffering disclosed to them by the evidence that they might choose to credit. A charge to the jury is to be considered from the standpoint of its effect upon the jury in guiding it to a correct verdict and it is to be presumed, in the absence of a clear indication to the contrary, that the jury followed the court’s instructions. Tomczuk v. Alvarez, 184 Conn. 182, 193, 439 A.2d 935 (1981); Lucier v. MeridenWallingford Sand & Stone Co., 153 Conn. 422, 426, 216 A.2d 818 (1966).

The defendant’s claim that the argument was misleading because it dealt with anesthesia during surgery and, therefore, was not, in effect, conscious pain and suffering and, therefore, potentially compensatory also lacks merit for the same reason. It is well here to remember “that there are injuries to which human experience teaches there is accompanying pain” and jurors “are not to be faulted ... if they do not believe all they are told and all that their common experience does not accept. That is not to say, they may disregard obvious injury. It is, however, to say that they are not obliged to believe that every injury causes pain or the pain alleged.” Boggavarapu v. Ponist, 518 Pa. 162, 167, 542 A.2d 516 (1988). In light of the trial court’s explicit instructions, we can reasonably expect that the jurors in this case, drawing on their personal reservoir of common sense and human experience, properly assessed the evidence offered to them as to pain and suffering.

Moreover, the trial court instructed the jury that “in deciding this case, you must only consider that information which was admitted as evidence in this courtroom.” It is axiomatic that arguments of counsel are not evidence. We subscribe to the view that, absent a contrary showing, “[w]e cannot attribute to any jury in this state a lack of sufficient mentality to distinguish between the two.” Jones v. Hogan, 56 Wash. 2d 23, 31-32, 351 P.2d 153 (1960); see Newbury v. Vogel, 151 Colo. 520, 527, 379 P.2d 811 (1963); Evening Star Newspaper Co. v. Gray, 179 A.2d 377, 382 (D.C. Mun. Ct. App. 1962). In addition, “[t]he legal presumption is that jurors will do their duty according to their oaths.” Winters v. Floyd, 51 Tenn. App. 298, 306, 367 S.W.2d 288 (1962); 29 Am. Jur. 2d, Evidence § 170.

In conclusion, we cannot accept the defendant’s claims that the plaintiff’s argument violated Carchidi or Pool. We have observed that proper compensation for pain and suffering cannot be computed by mathematical formula and that there is no iron-clad rule for the assessment of damages. Manning v. Michael, supra; see also Birgel v. Heintz, 163 Conn. 23, 34, 301 A.2d 249 (1972); Jerz v. Humphrey, 160 Conn. 219, 222, 276 A.2d 884 (1971). It is fair to say that, had the instructions explicitly addressed the plaintiff’s reference to the anesthesiology bill, as the defendant requested, the trial court in so doing would have highlighted the very argument now challenged. In that event, the jury could then have regarded such an instruction as “an implicit recognition” that the trial court considered that argument improper. See Carchidi v. Rodenhiser, supra, 535. As an appellate court, we should not overlook the circumstance that “[f]rom the vantage point of the trial bench, a presiding judge can sense the atmosphere of a trial and can apprehend far better than we can, upon the printed record, what factors, if any, could have improperly influenced the jury.” Butler v. Steck, 146 Conn. 114, 119, 148 A.2d 246 (1959); Hearl v. Waterbury YMCA, 187 Conn. 1, 3, 444 A.2d 211 (1982); Pisel v. Stamford Hospital, 180 Conn. 314, 322, 430 A.2d 1 (1980); Marko v. Stop & Shop, Inc., 169 Conn. 550, 559, 364 A.2d 217 (1975). This consideration further supports our conclusion that the trial court did not err as claimed. Finally, it remains only to note that the trial court’s denial of the defendant’s motion to set aside the verdict, which included the defendant’s present claim on appeal, is entitled to great weight. Hearl v. Waterbury YMCA, supra; Kalleher v. Orr, 183 Conn. 125, 127, 438 A.2d 843 (1981).

There is no error.

In this opinion the other justices concurred.

       When this action was instituted, Anthony A. Tusla, Jr., the father of Diane M. Tusla and the owner of the motor vehicle that she was operating at the time of the accident, was also named and served as a party defendant. Thereafter, the action was withdrawn as to Anthony A. Tusla, Jr.

       The anesthesia bill in evidence which was referred to was the following:
      “Mr. James Vajda
      245 Seltsam Road
      Bridgeport, CT 06606
      This Bill is for Anesthesia Services and is Separate from Hospital and Surgeons Fee.

       There was expert testimony that the plaintiff had sustained a 25 percent permanent disability to his forearm.

       During his argument, the plaintiff’s counsel said: “Now, for all those years, if he lives that long, five hundred and forty months in the future. For all those months and years, you’ve got to give him compensation for each and every day and each and every hour that he has this disability.”
      An acknowledged authority on the law of damages said: “Translating pain and anguish into dollars can, at best, be only an arbitrary allowance, and not a process of measurement, and consequently the judge can, in his instructions, give the jury no standard to go by; he can only tell them to allow such amount as in their discretion they may consider reasonable. Rules devised for measuring pecuniary losses do not fit here.” C. McCormick, Damages (1975) § 88, p. 318; see also 2 F. Harper & F. James, The Law of Torts (2d Ed.) § 25.10, p. 564.
      This recognizes that rarely is pain constant over the entire life expectancy of a plaintiff and that even if the evidence indicated that that was so, the common sense of jurors would also recognize as well that the intensity of pain normally varies with individuals. Such significant circumstances involving the nature, extent and intensity of pain and suffering from one person to another reinforces the "wisdom of the use of the fair, just and reasonable compensation standard for pain and suffering by the jury unaided by anything not disclosed by the evidence.

       Immediately prior to the comments upon which the defendant fbcuses, the plaintiffs counsel, without objection, said: “And, again, we all know how to buy pleasure, you know? You want to spend four or five dollars ($4.00 - $5.00) and go to a movie; you want to spend fifty or seventy-five dollars ($50.00 - $75.00) I guess, today, to go to a play in New York; you want to spend two or three dollars ($2.00 - $3.00) to have a drink; whatever it is. If you want to spend a thousand dollars ($1,000.00) to go on a vacation. Whatever it is, people know how to buy pleasure. We’re willing to pay for pleasure.”

       The record indicates that all the medical, hospital and other out-of-pocket expenses, which were introduced as exhibits, totaled approximately $32,000.

         Here, the trial court said: “In Carchidi [v. Rodenhiser, 209 Conn. 526, 551 A.2d 1249 (1989)], the court found objectionable counsel’s argument ‘that the plaintiff was entitled to an award of $25,000.00 for pain and suffering, and that, when this amount is combined with other elements of damages, the plaintiff was entitled to a total award of $30,000.’ 209 Conn, at 527; and in Pool [v. Bell, 209 Conn. 536, 551 A.2d 1254 (1989)], the court ordered a new trial when the plaintiff argued a number of days times an assigned value for each element of damage. 209 Conn, at 537-38. Neither [of] the arguments in Carchidi and Pool [was] similar to those in this case.”

       In doing so, we overruled Levin v. Ritson, 179 Conn. 223, 425 A.2d 1279 (1979), to the extent that granting or denying counsel’s request to so argue to the jury was a decision left to the discretion of the trial court. Carchidi v. Rodenhiser, 209 Conn. 526, 530, 551 A.2d 1249 (1989).

       In Carchidi v. Rodenhiser, 209 Conn. 526, 527, 551 A.2d 1249 (1989), during closing argument, “counsel for [Carchidi] suggested to the jury that the plaintiff was entitled to an award of $25,000 for pain and suffering, and that, when this amount was combined with the other elements of damages, the plaintiff was entitled to a total award of $30,000.”

       In Pool v. Bell, 209 Conn. 536, 537-38, 551 A.2d 1254 (1989), [o]n the blackboard, counsel for the plaintiff set out six categories of damages: medical expenses, pain and suffering, mental distress, permanent disability, loss of ability to do household duties, and loss of enjoyment of activities. The plaintiff’s counsel then assigned a dollar value to each item of damages and multiplied each amount, except medical expenses, by 15,178, the number of days corresponding to the period from the date of the operation to the probable date of the plaintiff’s death, based upon his 37.3 year life expectancy at the time of trial. The totals for each category were then added for a grand total of $345,851, which counsel for the plaintiff told the jury was a fair amount to award the plaintiff. In Pool, we noted, by way of example, that the plaintiff’s counsel assigned a value of $10 per day for future pain and suffering, $5 per day for permanent disability, and $1 per day for the loss of ability to do household duties.

       After the publication of our decisions in Carchidi v. Rodenhiser, 209 Conn. 526, 551 A.2d 1249 (1989), and Pool v. Bell, 209 Conn. 536, 551 A.2d 1254 (1989), the General Assembly enacted Public Acts 1989, No. 89-319. That act, entitled “An act concerning the award of damages to victims of civil wrongs,” provides: “(a) In any civil action to recover damages resulting from personal injury or wrongful death, counsel for any party to the action shall be entitled to specifically articulate to the trier of fact during closing arguments, in lump sums or by mathematical formulae, the amount of past and future economic and noneconomic damages claimed to be recoverable.
      “(b) Whenever, in a jury trial, specific monetary sums or mathematical formulae are articulated during closing arguments as provided for in subsection (a) of this section, the trial court shall instruct the jury that the sums or mathematical formulae articulated are not evidence but only arguments and that the determination of the amount of damages to be awarded, if any, is solely the jury’s function.”
      Public Acts 1989, No. 89-319 became effective on October 1,1989, and, therefore, was not in effect at the time of the verdict in this case, which was returned on January 13, 1989.

       Because of the applicability of Carchidi v. Rodenhiser, 209 Conn. 526, 551 A.2d 1249 (1989), to this distinction in Levin v. Ritson, 179 Conn. 223, 425 A.2d 1279 (1979), we concluded in Pool v. Bell, 209 Conn. 536, 551 A.2d 1254 (1989), that “we need not decide whether our holding in Levin v. Ritson, left the use of mathematical formulae in closing argument to the discretion of the trial court, as that question is now academic.” Pool v. Bell, supra, 539-40.

       We disagree with the plaintiffs statements in the absence of the jury, after his argument that suggests that, because the anesthesiologist’s bill was in evidence as an exhibit, that accords him some unusual right as to the parameters of comments he can make concerning it during argument.

       In a case where a trial court permitted a per diem argument as to damages (and where no blackboard or charts were used), an appellate court in another jurisdiction has rejected the claim that the argument apparently-misled the jury and noted that it apparently did not mislead the jury because the award to the plaintiff was less than one third of the lowest per diem estimate of her attorney. Evening Star Newspaper Co. v. Gray, 179 A.2d 377, 383 n.6 (D.C. Mun. Ct. App. 1962).


author: Hull, J.

text:
    State of Connecticut v. Bonnie Jean Foreshaw
    (13304)
    Peters, C. J., Healey, Glass, Hull and Santaniello, Js.
    Argued January 9
    decision released April 10, 1990

      Richard Emanuel, assistant public defender, with whom, on the brief, was G. Douglas Nash, public defender, for the appellant (defendant).

      Rita M. Shair, deputy assistant state’s attorney, with whom were James E. Thomas, assistant state’s attorney, and, on the brief, John M. Bailey, state’s attorney, for the appellee (state).
   Hull, J.

A jury found the defendant, Bonnie Jean Foreshaw, guilty of murder in violation of General Statutes § 53a-54a (a), of carrying a pistol without a permit in violation of General Statutes § 29-35, and of tampering with physical evidence in violation of General Statutes § 53a-155 (a) (l). The trial court thereupon sentenced her to a total effective sentence of forty-five years incarceration. On appeal, the defendant claims that: (1) the trial court erred in improperly instructing the jury on the affirmative defense of extreme emotional disturbance; (2) the trial court erred in improperly instructing the jury on an element of the crime of tampering with physical evidence; and (3) the evidence presented was insufficient to support the verdict on the charge of tampering with physical evidence. We find no error.

The jury could reasonably have found the following facts. On the evening of March 26, 1986, Joyce Amos attended a dance at the Jamaican Progressive League, a club located on Albany Avenue in Hartford. At approximately midnight, Amos arranged to get a ride home from an acquaintance, Hector Freeman, and Freeman’s friend, Elmer Pickett. As they left the club, Freeman, who needed some cigarettes, asked Pickett to meet him across the street at a twenty-four hour gas station and convenience store.

Freeman then walked toward the store and encountered the defendant as he was crossing the street. When Freeman greeted her with the words “Hello, Dred,” the defendant began shouting obscenities at him, claiming that he had “disrespected her.” The defendant continued to swear at Freeman, prompting him to respond in similar language. Meanwhile, Pickett had driven his car into the parking lot in front of the store and Amos had gotten out of the car to join Freeman. Both Amos and Freeman then proceeded into the store.

Upon walking out of the store, Amos approached the defendant and began talking to her. Freeman soon joined Amos and listened as Amos admonished the defendant for using such vile language. Undaunted, the defendant continued her tirade and eventually disappeared behind a nearby building. She emerged again quickly, however, and pulled from under her coat a .38 caliber pistol. The defendant then screamed at Amos to get out of the way because she intended to kill someone. Almost immediately thereafter, the defendant fired the shot that killed Amos.

The defendant fled from the scene in her automobile, but was arrested within a short time after the shooting. The arresting officer found a .38 caliber bullet on the floor of the automobile. Upon police inquiry about the location of the gun, the defendant responded that, while driving her car, she had thrown the gun out of the car window. The defendant then retraced her route with the police in an attempt to find the gun, but eventually became confused and upset and discontinued her search. The gun was never recovered.

At trial, the defendant took the witness stand in her defense and gave testimony concerning the events that had transpired before, during and after the shooting incident. She explained that on the night of March 26, 1986, she had stopped at the Jamaican Progressive League for a drink. While she was at the club, she had been insulted and embarrassed by Freeman after he unsuccessfully had offered to buy her a drink. She immediately decided to leave the club, but was followed to her car by Freeman and Amos. The defendant testified that, although Freeman did not block her from getting into her car, his presence had threatened her. The defendant claimed further that she had grabbed her gun and deliberately pulled its trigger in response to Freeman’s movements toward her. Upon seeing Amos fall, the defendant immediately drove away and discarded the gun en route so that she would not be caught with it.

Although the defendant admitted at trial that she had fired the fatal shot, she claimed that she had done so while under the influence of extreme emotional disturbance. In support of this affirmative defense, the defendant presented expert testimony from Anne E. Price, a psychiatrist. Price testified that the defendant had experienced an abusive childhood and had endured two abusive marriages. Price explained that these experiences had affected the defendant’s state of mind at the time of the shooting. She further explained that the defendant suffered from posttraumatic stress disorder, a condition similar to that suffered by certain Vietnam veterans. The condition is caused by a traumatic event, such as persistent abuse, not within the range of usual human experiences. The trauma may cause a person to overreact to relatively benign events or to respond to a situation of danger in an irrational way. Price testified that when the defendant was confronted by Freeman, she had become scared that he would beat her as her husbands had done in the past. Consequently, the defendant became so overwhelmed by panic that she reacted irrationally and impulsively. According to Price, the defendant fired the gun before she could really think about what she was doing.

I

The defendant first claims that the trial court erred in improperly instructing the jury on the affirmative defense of extreme emotional disturbance. The basis of the defendant’s claim is the court’s inclusion in its charge of the following sentence: “Now, to determine whether the defendant has established the affirmative defense of extreme emotional disturbance by a preponderance of the evidence as a mitigation of murder, to manslaughter in the first degree, you must find first, that the emotional disturbance is not a mental disease or defect that rises to the level of insanity, as defined by our statutes.” (Emphasis added.) The defendant argues that the court’s instruction misstated the controlling law, confused the jury, improperly added to the defendant’s burden of proof by requiring that the defendant prove that her level of mental disease or defect did not rise to the level of insanity, and failed to include a statutory definition of insanity.

The defendant concedes that she did not except at trial to the portion of the charge she now claims as error; see Practice Book § 852; but maintains that her claim is reviewable under both State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973), and the plain error rule of Practice Book § 4185. We do not agree.

We turn first to the defendant’s argument that because the court’s instruction violated her due process right to establish a defense; Washington v. Texas, 388 U.S. 14, 19, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967); her challenge to that instruction warrants review under State v. Evans, supra. This court recently restated the Evans guidelines for dealing with alleged constitutional violations that are raised for the first time on appeal. State v. Golding, 213 Conn. 233, 238-42, 567 A.2d 823 (1989). In Golding, we held that “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. We conclude that the defendant’s constitutional right to establish a defense was not violated.

In State v. Preyer, 198 Conn. 190, 502 A.2d 858 (1985), this court was faced with an unpreserved challenge to a clearly erroneous affirmative defense instruction. We held, inter alia, that a trial court’s failure independently to instruct the jury on an affirmative defense supported by the evidence at trial does not rise to the level of a constitutional violation. Id., 196-97. In support of that holding, we stated that “Washington v. Texas, supra, 19, does not establish an unqualified constitutional right to correct jury instructions on any defense the defendant may have. The only relevant issue therein decided was the applicability, in state court proceedings, of the sixth amendment right of a criminal defendant to have compulsory process for obtaining witnesses in his favor.” Id., 197 n.9. “Implicit in [our] decision [in Preyer] was the conclusion that claims of error pertaining to the inadequacy of instructions on an affirmative defense do not raise a constitutional question.” State v. Suggs, 209 Conn. 733, 751, 553 A.2d 1110 (1989). Accordingly, pursuant to State v. Golding, supra, and State v. Evans, supra, the defendant cannot prevail on her unpreserved challenge to the court’s affirmative defense instruction.

The defendant likewise cannot succeed in her attempt to raise this claim under the plain error rule. We decline to review the defendant’s claim as plain error, because we are not convinced that there was any manifest injustice under all the circumstances of the case. Practice Book § 4185 provides that this court “may in the interests of justice notice plain error not brought to the attention of the trial court.” “Such 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.” State v. Hinckley, 198 Conn. 77, 87-88, 502 A.2d 388 (1985). While it may well be that the instruction at issue was poorly worded, we cannot say that the inclusion of the challenged language, viewed in the context of the entire jury charge, “constituted a manifest injustice to the defendant so as to impair the effectiveness or integrity of [her] trial.” Id., 88. Accordingly, there is no plain error in this case.

II

The defendant next assigns error to the trial court’s instruction on the crime of tampering with physical evidence. General Statutes § 53a-155 (a) provides in pertinent part: “A person is guilty of tampering with . . . physical evidence if, believing that an official proceeding is pending, or about to be instituted, he: (1) Alters, destroys, conceals or removes any record, document or thing with purpose to impair its verity or availability in such proceeding.” (Emphasis added.) The trial court included the following language in its charge to the jury: “If you find that the State has proved beyond a reasonable doubt that the defendant did conceal this gun . . . with the purpose of impairing its availability in this trial, or an official proceeding, which would be taking place at some later time — if you find that beyond a reasonable doubt, then you can find the defendant guilty of tampering with physical evidence . . . .” (Emphasis added.) The defendant contends that the phrase “would be taking place at some later time” differs significantly from the language of § 53a-155 (a) and thus misled the jury concerning an element of the crime charged.

The defendant again concedes that she did not object at trial to the portion of the charge she now claims as error. Because, however, a trial court’s failure to submit to the jury the essential elements of the offense charged would implicate the fundamental constitutional rights of the defendant; State v. Cobb, 199 Conn. 322, 326, 507 A.2d 457 (1986); the defendant argues that pursuant to State v. Evans, supra, review of her claim is warranted. We are not persuaded that, under the facts here presented, the defendant suffered a constitutional violation. See State v. Golding, supra, 239-40.

“We have often said that the charge should be read as a whole. Tt is well established . . . that individual instructions are not to be judged in artificial isolation from the overall charge. State v. Dolphin, 195 Conn. 444, 451, 488 A.2d 812 (1985); State v. Reid, 193 Conn. 646, 660, 480 A.2d 463 (1984); State v. Hines, 187 Conn. 199, 209, 44 A.2d 314 (1982). The whole charge must be considered from the standpoint of its effect on the jurors in guiding them to a proper verdict; State v. Corchado, 188 Conn. 653, 660, 453 A.2d 427 (1982); State v. Williams, 182 Conn. 262, 269, 438 A.2d 80 (1980); State v. Piskorski, 177 Conn. 677, 746-47, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194 (1979); and not critically dissected in a microscopic search for possible error. State v. Harris, 172 Conn. 223, 226-27, 374 A.2d 203 (1977).’ ” State v. Silano, 204 Conn. 769, 773, 529 A.2d 1283 (1987), quoting State v. Reddick, 197 Conn. 115, 132, 496 A.2d 466 (1985), cert. denied, 474 U.S. 1067, 106 S. Ct. 822, 88 L. Ed. 2d 795 (1986).

A review of the jury charge concerning the crime of tampering with physical evidence reveals that the trial court articulated the exact language of § 53a-155 (a) three times. First, the court began its discussion of the tampering charge by reading the information which alleged, inter alia, that “the defendant, believing that an official proceeding was about to be instituted, removed and concealed a handgun, so as to make said handgun unavailable in such proceeding . . . .’’(Emphasis added.) The court then proceeded to read verbatim the language of § 53a-155 (a) (1). Immediately thereafter, the court reiterated: “And an official proceeding is any proceeding pending, or about to be instituted, including Judicial, at which an official is authorized to take evidence under oath.” (Emphasis added.) It was after these instructions that the court used the challenged language to describe an “official proceeding.” The isolated phrase of which the defendant complains, deviated, in a minor way, from the language of the statute, but, nevertheless, preserved the meaning and future tense of § 53a-155 (a). Under such circumstances, the court’s use of the challenged language could not reasonably have misled the jury concerning an element of the crime of tampering with physical evidence, and accordingly did not rise to the level of a constitutional violation.

Ill

Finally, the defendant challenges the sufficiency of the evidence presented at trial with respect to the charge of tampering with physical evidence. General Statutes § 53a-155 (a) (1). At the close of the state’s case-in-chief and again at the close of the defense case, the defendant moved for judgment of acquittal on the tampering charge. Both motions were denied by the court. On appeal, the defendant renews her claim that there was insufficient evidence to sustain the verdict on the charge of tampering with physical evidence. We are not persuaded that the evidence was insufficient to support the defendant’s conviction on that charge.

“In accordance with well established principles, appellate analysis of a claim of insufficiency of the evidence requires us to undertake a twofold task. ‘We first review the evidence presented at the trial, construing it in the light most favorable to sustaining the jury’s verdict. We then determine whether, upon the facts thus established and the inferences reasonably drawn therefrom, the jury could reasonably have concluded that the cumulative effect of the evidence established guilt beyond a reasonable doubt . . . . ’ State v. Sinclair, 197 Conn. 574, 576, 500 A.2d 539 (1985), and cases there cited.” State v. Rollinson, 203 Conn. 641, 665-66, 526 A.2d 1283 (1987).

With respect to the tampering charge, the state presented the following evidence. The defendant fired a gunshot that fatally wounded Amos, an act witnessed by several individuals. When Amos fell to the ground, the defendant fled the scene in her automobile. The defendant told arresting police officers that she had thrown the gun out of the car window as she was driving away from the scene. Finally, the defendant herself testified that she had discarded the gun so that she would not be caught with it.

The defendant argues that the testimony outlined above was not sufficient to support her conviction of tampering with physical evidence. In particular, the defendant argues that because she discarded the gun prior to any contact with law enforcement officers or the judicial system, she could not have believed an official proceeding was “about to be instituted.” In support of this contention, the defendant argues that the language of § 53a-155 (a) connotes temporal proximity between the alleged act and the official proceeding. The defendant argues further that even if the state proved that she had acted with the intent to make the gun unavailable to the police, such an intent would not warrant conviction under the language of § 53a-155 (a) (1). We do not agree. It is true that at the time the defendant discarded the gun, no official proceeding had in fact been instituted. The statute, however, speaks to that which is readily apt to come into existence or be contemplated and thus plainly applies to the official proceeding arising out of such an incident. The crucial role police involvement would play in that process cannot be disputed.

“[I]t is our function to ‘review the evidence and construe it as favorably as possible with a view toward sustaining the conviction, and then [to] determine whether, in light of the evidence, the trier of fact could reasonably have reached the conclusion it did reach. State v. Rossier, 175 Conn. 204, 207, 397 A.2d 110 (1978).’ State v. McClary, 207 Conn. 233, 249, 541 A.2d 96 (1988).” State v. Robinson, 213 Conn. 243, 257, 567 A.2d 1173 (1989). We cannot say that from the evidence presented, the jury could not reasonably have concluded that the defendant was guilty of tampering with physical evidence beyond a reasonable doubt.

There is no error.

In this opinion the other justices concurred.

       General Statutes § 53a-54a (a) provides: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person . . . except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime.”

       General Statutes § 29-35 provides in pertinent part: “(a) No person shall carry any pistol or revolver upon his person, except when such person is within his dwelling house or place of business, without a permit to carry the same issued as provided in section 29-28.”

       General Statutes § 53a-155 provides in pertinent part: “(a) A person is guilty of tampering with . . . physical evidence if, believing that an official proceeding is pending, or about to be instituted, he: (1) Alters, destroys, conceals or removes any record, document or thing with purpose to impair its verity or availability in such proceeding.”

       Testimony indicated that the defendant was a Rastafarian and wore her hair in long dredlocks.

       Practice Book § 852 provides in pertinent part: “The supreme court shall not be bound to consider error as to the giving of, or the failure to give, an instruction unless the matter is covered by a written request to charge or exception has been taken by the party appealing immediately after the charge is delivered.”

       The defendant does not claim error in any other portion of the charge concerning the affirmative defense of extreme emotional disturbance.

         The defendant argues that plain error review is appropriate because we have in the past reviewed unpreserved claims challenging the instructions given the jury on an affirmative defense. State v. Suggs, 209 Conn. 733, 750-52, 553 A.2d 1110 (1989); State v. Preyer, 198 Conn. 190, 199, 502 A.2d 858 (1985). We find those cases to be distinguishable from the present case. In Preyer, the trial court overlooked a statutory provision, the language of which required the court to instruct the jury that the affirmative defense of cohabitation was applicable to the crime with which the defendant was charged. State v. Preyer, supra. In Suggs, the court failed to instruct the jury pursuant to General Statutes § 53a-12 (b) that the defendant bears the burden of establishing an affirmative defense by a preponderance of the evidence. State v. Suggs, supra, 752. The present case does not involve a misstatement of the law arising from the trial court’s failure to give an instruction clearly required by a statutory provision.