text:
    Commission on Hospitals and Health Care v. The Stamford Hospital
    (13378)
    Healey, Shea, Glass, Covello and Hull, Js.
    Argued June 10
    decision released August 16, 1988

      Paul E. Knag, with whom, on the brief, were John F. Spindler and Barbara M. Schellenberg, for the appellant (defendant).

      Maite Barainca, assistant attorney general, with whom, on the brief, were Joseph I. Lieberman, attorney general, and Robert E. Walsh and Richard J. Lynch, assistant attorneys general, for the appellee (plaintiff).
   Shea, J.

The defendant Stamford Hospital (hospital) has appealed from a judgment of the trial court enjoining the hospital from instituting open heart surgery and coronary angioplasty programs without the prior approval of the plaintiff commission on hospitals and health care (commission) as required by General Statutes § 19a-154. On appeal, the hospital claims that the trial court erred in holding that (1) § 19a-160-53 of the Regulations of Connecticut State Agencies is consistent with § 19a-154 and, therefore, is valid; and (2) the commission’s deficiency letter was issued within the time required under § 19a-160-53. We find no error.

The trial court found the following facts. On May 21, 1986, the hospital mailed to the commission a letter requesting forms on which to submit a certificate of need application relating to open heart surgery. In response, the commission sent to the hospital a copy of the commission’s “CORE” application form, which is the form to be used by all applicants for a certificate of need.

On July 14,1986, the hospital hand-delivered to the commission an application for a certificate of need for open heart surgery and coronary angioplasty programs. On July 15, 1986, the hospital mailed a letter with attachments to the commission concerning the hospital’s application for a certificate of need. The attachments consisted of four corrected pages and twenty-six additional pages, constituting the hospital’s audited financial statements, which were to be added to the application. The July 15 letter and the accompanying material were received by the commission on July 23, 1986.

On August 6,1986, the commission, after reviewing the application, sent a five page letter to the hospital stating that on July 23, 1986, the commission had received the hospital’s application and had found it deficient. The commission requested a significant amount of additional information. The hospital did not respond to the commission’s letter.

In a letter to Commissioner Nancy Watters dated December 8, 1986, legal counsel for the hospital indicated that he had advised the hospital that it was authorized to proceed with open heart surgery because the commission had not denied or modified the hospital’s application within ninety days of its hand-delivered submission. Counsel for the hospital stated that it was his opinion that the deficiency letter of August 6 was invalid, because it was sent more than ten days after the original application date of July 14, 1986, even though the deficiency letter referred to July 23,1986, as the triggering date.

On May 16,1987, the commission, pursuant to General Statutes § 19U-159, filed a petition for enforcement of the requirements of General Statutes § 19a-154, seeking to enjoin the hospital from instituting open heart surgery and coronary angioplasty programs without the prior approval of the commission. On November 9,1987, the trial court entered a permanent order prohibiting the hospital from instituting open heart surgery and coronary angioplasty programs. This appeal followed.

I

The hospital claims that § 19a-160-53 of the Regulations of Connecticut State Agencies is inconsistent with General Statutes § 19a-154 and therefore is invalid. Section 19a-154 requires any health care facility or institution that intends to introduce any additional function or service into its program of health care to “request the permission” of the commission prior to instituting any such function or service. Section § 19a-160-53 defines an application as “all the required components and any special components set forth in these regulations.” The hospital contends that the phrase “request the permission” does not allow for the interpretation taken by the commission in the regulations, namely, that such a “request” means a completed application. See Regs., Conn. State Agencies § 19a-160-53 (a).

The commission was created by the legislature to ensure the efficient utilization of health care resources and to control the burgeoning costs of health care. Griffin Hospital v. Commission on Hospitals & Health Care, 200 Conn. 489, 497, 512 A.2d 199, appeal dismissed, 479 U.S. 1023, 107 S. Ct. 781, 93 L. Ed. 2d 819 (1986). To achieve those ends, the legislature granted the commission broad powers over the budgets of hospitals and over the initiation of new programs and capital expenditures by health care institutions. Id., 497-98; see General Statutes §§ 19a-150, 19a-151, 19a-153 (a), 19a-154 (a), 19a-156 (a). Further, the legislature has expressly directed the commission to adopt such regulations as will implement the commission’s purposes; General Statutes § 19a-160; and the validly enacted regulations of an administrative agency carry the force of statutory law. Griffin Hospital v. Commission on Hospitals & Health Care, supra, 497; Salmon Brook Convalescent Home v. Commission on Hospitals & Health Care, 177 Conn. 356, 363, 417 A.2d 358 (1979). A party attacking such a regulation has the burden of showing beyond a reasonable doubt that it is in conflict with the legislation. Aaron v. Conservation Commission, 183 Conn. 532, 537, 441 A.2d 30 (1981).

The hospital claims that the legislature focused on the receipt of the request for permission, not on the accompanying information. We disagree. Section 19a-154 specifies a number of factors the commission must consider in determining whether to approve a request for a new function or service. These factors include “the availability of such service or function at other inpatient rehabilitation facilities . . . within the area to be served, the need for such service or function within such area,” and other factors that the commission deems relevant to the decision. General Statutes § 19a-154. General Statutes § 19a-153 lists additional criteria that the commission must consider in its certificate of need determinations. Obviously, the commission cannot make an informed judgment regarding such proposals unless the commission has before it the information that pertains to the statutory factors. The enumeration of these factors, therefore, suggests that the legislature was concerned with the information to be submitted with a request and did not contemplate that the commission would act upon a bare “request for permission.” Further, it is the well established practice of this court to accord great deference to the time-tested construction given a statute by the agency charged with its enforcement. Texaco Refining & Marketing Co. v. Commissioner, 202 Conn. 583, 599, 522 A.2d 771 (1987); Griffin Hospital v. Commission on Hospitals & Health Care, supra, 496.

The commission’s regulations are a reasonable construction of the statutory phrase “request for permission” because they further the legislative intent of having the commission consider a multitude of factors before making its determinations. Under § 19a-160-53 the commission must send a deficiency letter to the applicant notifying it that its request is not properly before the commission. The ninety day review period does not begin to run, therefore, because the application, lacking adequate accompanying information, has not enabled the commission to consider the statutory factors set forth in §§ 19a-153 and 19a-154. Because the legislature is presumed to have acted rationally; State v. Parmalee, 197 Conn. 158, 165, 496 A.2d 186 (1985); it would not have specified the factors to be considered by the commission and, at the same time, have prevented it from establishing procedures that would allow the commission to collect the information needed to evaluate those factors.

The hospital contends that the commission should be required to deny requests containing insufficient information, rather than allow the staff to issue deficiency letters. The commission’s procedure, however, provides a more efficient mechanism for processing requests, while the hospital’s approach would delay the process. A deficiency letter notifies an applicant of a preliminary determination that the commission will not be able to make an informed decision based on the information provided. The application is no longer before the commission, but the commission retains the application and requires only that the applicant address the deficiencies, rather than resubmit an entirely new application. In this case, the hospital stated that its application was comprised of more than 130 pages of a completed questionnaire as well as many pages of supporting documents. The commission’s regulations requiring that the hospital correct only the deficiencies set forth in the letter, therefore, saved this applicant the considerable time and expense involved in submitting an entirely new application.

The hospital claims that even though the commission must issue deficiency letters within ten days, the commission could needlessly prolong the application process through repeated requests for additional information. First, we note that the hospital has never questioned the appropriateness of the August 6 request for information. Second, § 19a-160-53 limits the commission to one deficiency letter. If the applicant complies with the specific requests for additional information, the commission cannot thereafter raise unrelated claims of deficiencies in an application. The commission may determine, however, that the applicant has failed to comply with the initial request for additional information, in which case the application remains “no longer before the Commission.” Regs., Conn. State Agencies § 19a-160-53. Although the hospital characterizes the deficiency letters as “not subject to appeal,” the hospital would not have been without a remedy if it had wished to challenge the propriety of a request for further information. General Statutes § 4-176 provides that an agency may, in its discretion, issue declaratory rulings as to the applicability of any statutory provision or of any regulation or order of the agency. The challenge to a regulation, therefore, should begin with a petition to the agency itself. See Connecticut Hospital Assn. v. Commission on Hospitals & Health Care, 200 Conn. 133, 509 A.2d 1050 (1986); Connecticut Assn. of Health Care Facilities, Inc. v. Worrell, 199 Conn. 609, 508 A.2d 743 (1986). An adverse ruling is appeal-able under General Statutes § 4-183; Beck v. Board of Trustees, 32 Conn. Sup. 153, 155, 344 A.2d 273 (1975); and the failure of an agency to issue a ruling permits action under General Statutes § 4-175. Connecticut Assn. of Boards of Education, Inc. v. Shedd, 197 Conn. 554, 560-61, 499 A.2d 797 (1985). In this case, therefore, the hospital could have filed with the commission a petition for a declaratory ruling pursuant to § 4-176, claiming that § 19a-160-53 was inapplicable to the hospital’s situation, because the additional information requested by the staff was unnecessary for consideration of its application.

The hospital maintains that the commission’s practice of having its staff issue deficiency letters amounts to an unauthorized delegation of decision-making power, and therefore, the commission itself should be required to make the decisions regarding the completeness of an application. We agree with the hospital that the decisions of the staff are not decisions of the commission but, as stated above, health care facilities have adequate remedies for contesting staff decisions in §§ 4-175 and 4-176.

We have consistently held that administrative agencies may exercise wide discretion in the performance of their duties. Patry v. Board of Trustees, 190 Conn. 460, 478, 461 A.2d 443 (1983); Riley v. State Employees’ Retirement Commission, 178 Conn. 438, 442, 423 A.2d 87 (1979). Further, in addressing the practical realities of the administrative process, we have recognized that “[cjompetent subordinates may sift and analyze evidence, recommend findings of fact and conclusions of law, and draft orders for an administrative agency as an integral part of the process.” Connecticut Natural Gas Corporation v. PUCA, 183 Conn. 128, 138, 439 A.2d 282 (1981). “Sound principles of organization demand that those at the top be able to concentrate their attention upon the larger and more important questions of policy and practice, and that their time be freed, so far as possible, from the consideration of the smaller and less important matters of detail.” Hearing on H.R. 4732, before House Comm, on Interstate and Foreign Commerce, 72d Cong., 2d Sess. 7 (1933); see also Fleming v. Mohawk Wrecking & Lumber Co., 331 U.S. 111, 120-21, 67 S. Ct. 1129, 91 L. Ed. 1375 (1947); Morgan v. United States, 298 U.S. 468, 481, 56 S. Ct. 906, 80 L. Ed. 1288 (1936). We conclude that the commission’s regulations provide an efficient method for reviewing the adequacy of the voluminous financial, medical and scientific information that ordinarily accompanies a certificate of need application.

II

The hospital claims that even if the commission could lawfully adopt § 19a-160-53, the commission’s August 6 deficiency letter was not issued within the time required under § 19a-160-53. Section § 19a-160-53 requires that all deficiencies in an application be brought to the attention of the applicant not later than ten days after receipt of the application. The hospital maintains that the ten day period should run from July 14, 1986, the date of its first submission of a certificate of need application, and not July 23, 1986, the date on which the commission received the hospital’s supplemental filing that had been mailed on July 15, 1986. This claim essentially challenges the trial court’s factual finding that the submission received on July 23, 1986, was a new application.

Because it is not the function of this court to retry facts; Coelho v. Posi-Seal International, Inc., 208 Conn. 106, 124-25, 544 A.2d 170 (1988); the scope of our review is limited to determining whether the trial court’s factual findings were clearly erroneous. McGaffin v. Roberts, 193 Conn. 393, 409, 479 A.2d 176 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1747, 84 L. Ed. 2d 813 (1985). The hospital states that the July 23 submission “was not a new application, or an application in any sense of the word.” Rather, it was simply the submission of additional and corrected information that became part of the application already on file. The trial court, however, found that the hospital had failed to submit the facility’s audited financial statements in its original submission of July 14, 1986: “It was not until July 23, 1986 that these required components were submitted in the attempt by the Hospital to file a complete application.” (Emphasis in original.) The trial court stated that these additions substantially modified and supplemented the hospital’s July 14 application. “ ‘We will not reverse the decision of the trial court unless it is clearly erroneous in light of the evidence and the pleadings in the record as a whole. Damora v. Christ-Janer, 184 Conn. 109, 113, 441 A.2d 61 (1981).’” Mallory v. Mallory, 207 Conn. 48, 55, 539 A.2d 995 (1988). We conclude that the trial court’s determination that the July 23 submission was a new application was not clearly erroneous in view of the evidence.

There is no error.

In this opinion the other justices concurred.

       “[General Statutes] See. 19a-159. (Formerly See. 19-73q). judicial enforcement. The superior court on application of the commission or the attorney general, may enforce, by appropriate decree or process, any provision of this chapter or any act or any order of the commission rendered in pursuance of any statutory provision.”

       “[General Statutes] Sec. 19a-154. (Formerly Sec. 19-73Í). approval process RE TRANSFER OF OWNERSHIP OR CONTROL PRIOR TO LICENSE; INTRODUCTION OF ADDITIONAL FUNCTIONS OR SERVICES; DECREASES IN SERVICES; INCREASES IN STAFFING. NEW OR CONTINUING OPERATIONS REQUIRING COMMISSION APPROVAL. HEARINGS ON APPLICATIONS OF A SIMILAR nature; coordination of activities, (a) Any health care facility or institution, as defined in subsection (a) of section 19a-490 . . . which intends to introduce any additional function or service into its program of health care . . . shall prior to the proposed date . . . of institution of such function or service . . . and in accordance with the schedule established by the commission pursuant to subsection (b) of this section, submit to the commission a request for permission to undertake such function or service or increase its staff. The commission shall make such review of the proposal as it deems necessary . . . in the case of the introduction of an additional function or service, ascertaining the availability of such service or function at other inpatient rehabilitation facilities, health care facilities or institutions or state health care facilities or institutions within the area to be served, the need for such service or function within such area and any other factors which the commission deems relevant to a determination of whether the facility or institution is justified in introducing such additional functions or services into its program or increasing its staff .... The commission shall grant, modify or deny such request within ninety days of the receipt thereof, except that upon request of the applicant, the ninety-day review period may be extended for an additional fifteen days if the commission or the health systems agency for the area to be served has requested additional information subsequent to the commencement of the commission’s review period. Failure of the commission to act on such request within such ninety-day period shall be deemed approval thereof, except that if the failure to act results from a tie vote of the commission on a motion to approve, modify or deny the request, the ninety-day review period shall automatically be extended fifteen days. Upon a showing by such facility or institution that the need for such function or service or increase in staff is of an emergency nature, the commission may waive the requirement that the request for such permission be submitted, in accordance with the schedule established by the commission pursuant to subsection (b) of this section, provided such request shall be submitted at least ten days before the proposed date of institution of the function or service.
      “(b) In conducting its activities under this section and section 19a-155, the commission shall hold hearings on applications of a similar nature at the same time and shall coordinate its activities under said sections with the activities of health systems agencies including the holding of joint hearings with such agencies where possible. The commission shall adopt regulations in accordance with the provisions of chapter 54, establishing a schedule for the submission of such applications which shall provide for all completed applications pertaining to similar types of services, facilities or equipment affecting the same health service area to be considered in relation to each other and reviewed at least twice a year.”

       The hospital appealed to the Appellate Court. On March 9, 1988, this court transferred the case to itself, pursuant to Practice Book § 4023.

       “[Regulations of Connecticut State Agencies] Sec. 19a-160-53. date of FILING, COMPONENTS, DEFICIENCIES
      “The date of filing of any application or required submission with the commission under Sec. 19a-151 (b) or (c), 19a-152,19a-156,19a-154,19a-155, or 19a-164 through 19a-166, G.S., shall be the date that the application is received by the commission.
      “(a) An application shall consist of all the required components and any special components set forth in these regulations.
      “(b) All deficiencies in any filed petition or application to the commission shall be brought to the attention of the petitioner or applicant in a written communication mailed to the petitioner or applicant not later than ten (10) business days after receipt of the petition or application at the commission’s office and the application or petition shall be no longer before the commission.”

       “[General Statutes] Sec. 19a-153. (Formerly Sec. 19-73k). considerations IN COMMISSION DELIBERATIONS; WRITTEN FINDINGS. AVAILABILITY OF information, use of charitable gifts, (a) In its deliberations under any of sections 19a-151 to 19a-156, inclusive, the commission shall take into consideration and make written findings concerning each of the following criteria: The relationship of the proposal to the health systems plan and the state health plan; the relationship of the proposal to the applicant’s long-range plan; the financial feasibility of the proposal, and its impact on the applicant’s rates and financial condition; the proposal’s contribution to quality, accessibility and cost-effectiveness of health care delivery in the region; the relationship of the proposed change to the applicant’s current utilization statistics; the teaching and research responsibilities of the applicant; the special characteristics of the patient-physician mix of the applicant; the voluntary efforts of the applicant in improving productivity and containing costs; and any other factors which the commission deems relevant, including, in the case of a facility or institution as defined in subsection (c) of section 19a-490, such factors as, but not limited to, the business interests of all owners, partners, associates, incorporators, directors, sponsors, stockholders and operators and the personal backgrounds of such persons.”

       Our decisions involving requests for jury instructions on lesser included offenses, although a different context, lend further support to the proposition that the commission could reasonably have interpreted “request” to mean something more than a bare request. In State v. Ostroski, 201 Conn. 534, 518 A.2d 915 (1986), for example, we held that the defendant’s request to charge was not appropriate, because the request contained no supporting facts at all and did not cite legal authority sufficiently. We emphasized that requests for jury instructions must be more than bare requests. Id., 558-59. We conclude that General Statutes § 19a-154 does not preclude the commission from reaching the similar conclusion that the statutory phrase, “request for permission,” means more than a bare request.

       The hospital cites Finn v. Planning & Zoning Commission, 156 Conn. 540, 244 A.2d 391 (1968), for the proposition that the ninety day review period under General Statutes § 19a-154 necessarily begins on receipt of a “request for permission,” even if the request lacks supporting information. Finn is readily distinguishable. Finn involved the failure of the agency to pass on a subdivision proposal. In the case at hand, there was no inaction by the commission. Rather, it was quite obvious that the hospital had been informed that its application was incomplete.
      The hospital claims also that the 1987 amendment to § 19a-154 supports its position that § 19a-160-53 of the Regulations of Connecticut State Agencies is inconsistent with § 19a-154. In 1987, the legislature amended § 19a-154 to provide that the commission may extend the review period for up to thirty days if the applicant has not filed in a timely manner information deemed necessary by the commission. See Public Acts 1987, No. 87-192. This amendment was not effective at any time when the hospital’s application was pending before the commission, and therefore, does not affect this case. In any event, there is no indication that the amendment was intended to replace or affect the deficiency letter procedure of § 19a-160-53.

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

       General Statutes § 19a-158 provides that health care facilities aggrieved by a decision of the commission may appeal in accordance with General Statutes § 4-183. Because a deficiency letter sent pursuant to § 19a-160-53 of the Regulations of Connecticut State Agencies does not constitute a decision by the commission, however, an applicant may not challenge the propriety of a deficiency letter through the procedure set forth in § 19a-158. Cf. Griffin Hospital v. Commission on Hospitals & Health Care, 196 Conn. 451, 493 A.2d 229 (1985) (appeal pursuant to § 19a-158 from commission’s rejection of hospital’s budget proposal); Hospital of St. Raphael v. Commission on Hospitals & Health Care, 182 Conn. 314, 438 A.2d 103 (1980) (appeal pursuant to § 19a-158 from commission’s denial of request to purchase and operate CT scanner). General Statutes §§ 4-175 and 4-176 provide the remedy for challenging a deficiency letter.


source: Caselaw Access Project

author: Santaniello, J.

license: Public Domain

text:
    Margaret Malmberg, Administratrix (Estate of Scott C. Malmberg) v. Ann Marie Lopez
    (13276)
    Peters, C. J., Healey, Shea, Callahan and Santaniello, Js.
    Argued May 6
    decision released August 23, 1988

      Paul E. Pollock, for the appellant (defendant).

      John D. Jessep, for the appellee (plaintiff).
   Santaniello, J.

The plaintiff brought this action seeking damages for the wrongful death of Scott C. Malmberg. The case was tried to a jury which returned a verdict for the plaintiff, but awarded zero damages. The plaintiff filed a motion to set aside the verdict, claiming that the award was contrary to the law and the evidence, and requested a new trial on the issue of damages only. The trial court denied the motion, and the plaintiff appealed.

The Appellate Court, in a split decision, found error in the court’s denial of the motion to set aside the verdict and remanded the case for a hearing in damages only. Malmberg v. Lopez, 12 Conn. App. 438, 531 A.2d 161 (1987). From that ruling, the defendant filed a petition for certification to appeal which this court granted.

The facts as reported in the Appellate Court decision are as follows: “On the evening of May 15, 1982, Scott Malmberg, and his date, Ann Marie Lopez, attended a social gathering at the home of Dwight Kettlehut in Cheshire. Malmberg had driven Lopez and Doreen Mosesian to the party after picking them up at Mosesian’s home in West Hartford. They arrived at the party at about 10 p.m. At the party, beer, fruit juice and vodka punch were available for consumption.

“The party broke up at about 12:30 a.m. Thereafter, with the defendant, Kettlehut and Mosesian as passengers, Malmberg began driving [his car] toward West Hartford, via 1-84, to take Mosesian and Lopez to Mosesian’s house where both women were to spend the night. The trip began with Malmberg in the driver’s seat, Lopez in the front passenger seat, Kettlehut in the center of the back seat, and Mosesian to his left. At some point on 1-84, Malmberg, complaining of a pain in his shoulder, asked the defendant if she would drive. Upon her assent, [Malmberg] pulled to the side of the road and [he] changed places [with Lopez]. With the defendant driving, they proceeded on toward West Hartford.

“At a point near exit 39 on eastbound 1-84, the defendant was proceeding in the left hand lane approaching an exit ramp situated on the left. The car then went off the highway to the left and struck a light pole and a guard rail and rolled down an embankment. Kettlehut and Mosesian were not injured and crawled out of the vehicle through the rear window. Kettlehut observed that Malmberg and the defendant were not in the car. Kettlehut called for Malmberg and then went up the embankment to the highway, where he saw a silhouette on the road that proved to be Malmberg. Kettlehut then flagged down a passing car from which one person got out and another continued on to seek help. Kettlehut then discovered the defendant on the embankment. Shortly thereafter, the police and an ambulance arrived on the scene. Malmberg later died because of fractured cervical vertebrae.

“During the trial, Kettlehut testified substantially as stated above. The defendant testified that she had planned to spend the night at Mosesian’s house located on Farmington Avenue in West Hartford and that the accident happened in the area of the exit for the town of Farmington. She stated that she was unfamiliar with that portion of the highway near the exit. The defendant could remember nothing else about the accident at the trial. The plaintiff, however, introduced into evidence an accident report filed by the defendant one month after the accident. In this report, the defendant admitted that she was the operator of the vehicle at the time of the accident and that while so engaged she was involved in an accident in Farmington on 1-84 near exit 39 eastbound. In describing what happened, the defendant stated in the report that ‘Vehicle #1 [Malmberg’s car] went off 1-84 and hit a light pole and guardrail and rolled down the embankment.’ She also stated in the report that one person had been killed in the accident. The plaintiff also introduced into evidence a certified copy of Malmberg’s death certificate, which stated that on May 16, 1982, at 1:30 a.m. in the town of Farmington, Scott Malmberg was a passenger in an auto that left the road at a highway exit ramp at exit 39 of 1-84 eastbound and that he died in an accident of fractured cervical vertebrae.” Malmberg v. Lopez, supra, 439-40.

The defendant appeals claiming that the Appellate Court erred in: (1) concluding that the evidence required that the jury find that the defendant’s negligence was the proximate cause of the victim’s death; and (2) remanding the case for further proceedings only upon the issue of damages, allowing the jury’s determination of liability in favor of the plaintiff to remain undisturbed. We reverse.

The question before this court is whether the Appellate Court erred in its attempt to interpret the jury’s verdict. The Appellate Court, in its review of the trial court’s refusal to set aside the verdict, concluded that the evidence supported the jury’s finding of liability, but that the award of zero damages in a wrongful death action was inadequate as a matter of law. Id., 443. In contrast to the trial court’s apparent analysis of the verdict as an improperly expressed defendant’s verdict, the Appellate Court found that the damage award “appeared to have been motivated by sympathy for the defendant.” Id., 447.

“ ‘On appeal, the conclusion of the trial court from the vantage point of the trial bench cannot be disturbed unless there is a clear abuse of discretion.’ ” Riccio v. Abate, 176 Conn. 415, 417, 407 A.2d 1005 (1979). An appellate court cannot retry the facts of a case or pass upon the credibility of the witnesses. Id., 418. The trial court’s refusal to set aside a verdict is entitled to great weight and every reasonable presumption should be given in favor of its correctness. Id., 417. “ ‘If, on the evidence, the jury could reasonably have decided as they did, [the reviewing court] will not find error in the trial court’s acceptance of the verdict . . . .’ ” Frankovitch v. Burton, 185 Conn. 14, 15, 440 A.2d 254 (1981). “ ‘However, it is the court’s duty to set aside the verdict when it finds that “it does manifest injustice, and is . . . palpably against the evidence. . . .” State v. Chin Lung, 106 Conn. 701, 704, 139 A. 91 (1927).’ ” Zarrelli v. Barnum Festival Society, Inc., 6 Conn. App. 322, 327, 505 A.2d 25, cert. denied, 200 Conn. 801, 509 A.2d 516 (1986). In determining whether a verdict does such injustice, “the only practical test is whether the total damages awarded fall somewhere within the necessarily uncertain limits of fair and reasonable compensation in the particular case, or whether the verdict so shocks the sense of justice as to compel the conclusion that the jury were influenced by partiality, prejudice, mistake or corruption.” Briggs v. Becker, 101 Conn. 62, 66-67, 124 A. 826 (1924); Sepe v. Deemy, 9 Conn. App. 524, 528, 520 A.2d 237 (1987). A direct showing of partiality, prejudice, mistake or corruption is not required. “ ‘[I]f the amount awarded “shocks the sense of justice” as to what is reasonable, then the inferred conclusion is that the jury was misguided in reaching its decision. . . .’ ” Sepe v. Deemy, supra, 528-29.

The crucial finding of the trial court was its statement that “[i]t was quite evident that the jury concluded [that] the plaintiff failed to sustain her burden of proof with respect to the injury mechanism and causal relationship between the defendant’s negligence and the passenger’s death.” This finding was rejected by the Appellate Court when it concluded that the jury’s verdict for the plaintiff should be upheld, but that a new hearing was required with regard to the plaintiff’s claim for damages which was so low as to shock the sense of justice. In our view, however, neither the Appellate Court nor this court is in a position clearly to ascertain from the conflicting jury verdict how the members of the jury found on the underlying issue of liability. The Appellate Court therefore lacked the authority to substitute its finding on liability for that of the trial court.

Our view that the Appellate Court should have recognized the inherent ambiguity in the jury’s verdict has implications for whether that court erred in limiting the further proceedings on remand to the issue of damages only. We have held that where the plaintiffs are entitled to recover damages for their injuries, an award limited to nominal or special damages is “manifestly inadequate” and should be set aside, “for the same rule governs upon an application for a new trial in the case of an inadequate award as in the case of an excessive award.” Johnson v. Franklin, 112 Conn. 228, 229, 152 A. 64 (1930). In Johnson, this court distinguished between the case where the damages awarded are inadequate and the verdict was properly for the prevailing party and the case “[wjhere the damages awarded are nominal and the verdict should have been against the prevailing party . . . .” (Emphasis added.) Id., 230. In the former case the verdict should be set aside and a new trial ordered; in the latter, the verdict should stand. Id. An explicitly stated award of zero damages differs from an award of nominal damages. A plaintiff’s verdict with a nominal damage award ordinarily suggests that the jury found that despite the defendant’s liability, the plaintiff failed to prove damages. See, e.g., Riccio v. Abate, supra, 418-19; Covey v. Willson, 4 Conn. App. 233, 239, 493 A.2d 290 (1985). The jury’s intent in rendering a plaintiff’s verdict with zero damages in a wrongful death action is far less clear.

Faced with the problem of an apparently conflicting verdict in an action for property damage and injuries sustained in an automobile accident, the Supreme Court of Appeals of West Virginia reasoned: “[Wjhere liability is strongly contested and the award of damages is clearly inadequate if liability were proven . . . an appellate court cannot infer from the jury verdict alone whether the jury were confused about the proper measure of damages or whether they were confused about the proper rules for determining liability, or both.” Freshwater v. Booth, 233 S.E.2d 312, 315 (W. Va. 1977). That court held further that “[wjhere . . . liability is contested and an appellate court is unable to infer whether upon a new trial a jury would find in favor of the defendant or in favor of the plaintiff an appellate court must remand the case for a trial on all issues.” Id., 316.

We therefore concur in the opinion expressed by the dissenting judge of the Appellate Court who stated that “if there must be further proceedings, it is surely arguable that the finding of zero damages is reflective of some misunderstanding on the issue of liability. Such a likelihood . . . transcends any public policy considerations concerning finality and judicial economy.” Malmberg v. Lopez, supra, 449 (Covello, J., dissenting). “[Ajssumptions which are based upon conjectures as to the real basis of the verdict and the method used by the jury in computing [damages]” must be “supported by the claims of proof.” Rosenblatt v. Berman, 143 Conn. 31, 37, 119 A.2d 118 (1955). Such assumptions, although made by “[tjhe court, with a commendable desire to avoid the necessity for a new trial,” are simply attempts “to rationalize the jury’s decision” and should be made “only when it is manifest” that the jury has rendered an award which is “contrary to law, not supported by proof, or contrary to the court’s explicit and unchallenged instructions.” Id.

Here, the jury’s intent in finding the issues for the plaintiff, but awarding zero damages, is known only to the jurors, and this court’s endorsement of one plausible explanation of the verdict over another would amount merely to speculation. Such ambiguity requires a rehearing in full, on both liability and damages.

Accordingly, the judgment of the Appellate Court is reversed and the case is remanded to that court with direction that the case be remanded to the trial court for a new trial.

In this opinion the other justices concurred.

       The original plaintiff in this action was Margaret Malmberg, the former administratrix to the estate of Scott C. Malmberg. Subsequent to Margaret Malmberg’s death, the Appellate Court granted a motion to substitute Frederick Malmberg, the current administrator of the decedent’s estate, as the plaintiff.

       This court does not interpret the Appellate Court opinion as having concluded that the jury was required to find the issue of proximate cause in favor of the plaintiff. In its discussion of this issue, the Appellate Court declared that “it is still probable that the defendant’s negligence would have been a substantial factor and thus a proximate cause of the decedent’s death.” (Emphasis added.) Malmberg v. Lopez, 12 Conn. App. 438, 446, 531 A.2d 161 (1987). Accordingly, we do not address this first claim of the defendant.

       The trial court, in denying the motion to set aside the verdict, reasoned that the jury failed to find that the accident was the proximate cause of the decedent’s death. The trial court found that “[tjhere was no evidence as to the manner in which [the] decedent exited from vehicle,” and hypothesized that “[i]t was entirely possible the decedent exited from the vehicle, returned to the highway and was thereafter struck by a motor vehicle.”

       The Appellate Court has addressed the question of whether a plaintiff’s award of zero damages should be treated as an inadequate verdict, requiring a new trial, or as an improperly expressed defendant’s verdict, requiring no further action. Sepe v. Deemy, 9 Conn. App. 524, 520 A.2d 237 (1987). A “jury’s failure to award any damages to the plaintiff [after the jury rendered a verdict in his favor] . . . compels the conclusion that the jury was influenced by partiality, prejudice or mistake.” Id., 533. The Appellate Court found that the trial court erred in refusing to set aside the verdict and remanded the case for a new trial. Id.
      Similarly the District of Columbia Circuit Court has held where “the verdict is inconsistent with stipulated evidence as to out-of-pocket loss, and where the jury arbitrarily abdicated its responsibility to assess damages for one of the plaintiffs, the interests of justice require a new trial.” Lester v. Dunn, 475 F.2d 983, 987 (D.C. Cir. 1973). There, the court reasoned that “[s]ince the irrationality of the jury’s award here is such that even speculation as to why it acted as it did is unrewarding, the proper course is to have a new trial on all issues, rather than one limited to the question of damages.” Id.

       The trial court had an opportunity to direct the jury to reconsider its confusing verdict in accordance with Practice Book § 311, which provides: “jury returned for reconsideration
      “The court may, if it determines that the jury have mistaken the evidence in the cause and have brought in a verdict contrary to it, or have brought in a verdict contrary to the direction of the court in a matter of law, return them to a second consideration, and for like reason may return them to a third consideration, and no more.”


text:
    State of Connecticut v. David Pierson
    (13371)
    Healey, Shea, Glass, Covello and Santaniello, Js.

      Argued June 10
    decision released August 23, 1988

      Ronald E. Cassidento, for the appellant (defendant).

      Harry Weller, deputy assistant state’s attorney, with whom, on the brief, was Frank Iannotti, former assistant state’s attorney, for the appellee (state).
   Santaniello, J.

This case is an appeal from a remand hearing ordered by this court in State v. Pier-son, 201 Conn. 211, 514 A.2d 724 (1986). In that case, the defendant had sought at trial to examine the victim’s psychiatric social worker to discover whether he had any information that the defendant could use to impeach the victim’s credibility. At the trial court proceedings, the defendant had been denied permission to inquire about the treatment of the victim because such information was shielded from disclosure by the psychiatrist-patient privilege. On appeal, the defendant claimed that his sixth amendment right to confront the principal witness against him had been violated because he had been refused permission to pierce the psychiatric privilege in order to challenge the victim’s credibility. This court agreed with the defendant and remanded the case for further proceedings, ordering that the trial court conduct a “voir dire” of the psychiatric social worker to determine whether he knew of any information that would call into question the victim’s credibility.

In remanding the case for further proceedings, this court specifically delineated the procedure to be employed during the hearing: “This preliminary inquiry may be conducted only with the consent of the witness sought to be impeached, but, unless such consent is forthcoming, the testimony of the witness must be stricken. The voir dire for the purpose of determining the existence of such impeaching evidence must be conducted in the courtroom in the presence of the defendant and his counsel, who shall be allowed to participate fully in the proceedings. . . . [I]f no such [impeachment] evidence is discovered, the judgment of conviction must stand.” State v. Pierson, supra, 228-29.

Using the guidelines established by this court, the trial court upon remand conducted the required hearing. The victim did not appear. His attorney, however, did appear on his behalf and waived the psychiatrist-patient privilege. Counsel stated that he was waiving the privilege on behalf of the victim, that he was authorized to do so, and that the victim was aware of the implications of this waiver. There was no written authorization given to counsel. The defendant objected on the ground that, since the privilege was a personal and statutory one, the person entitled to exercise it needed to be present in court in order to waive it. This objection was overruled, and the trial court proceeded to a hearing on the issue of the contents of the psychological records as ordered by this court. The psychiatric social worker was thoroughly examined as to the testimonial capacity of the victim. At the completion of the hearing, the trial court ruled: “[Tjhere exists no significant evidence that would be admissible for purposes of impeachment.” Consequently, the court allowed the defendant’s conviction to remain intact in accordance with the direction of this court.

It is from the final ruling of the trial court that the defendant appeals claiming that the trial court erred in permitting the complaining witness to waive the psychiatric privilege, through counsel, without appearing personally before the court, in contravention of General Statutes § 52-146c. The state claims that the defendant lacks standing to challenge the victim’s waiver of the psychiatric privilege especially when such waiver was demanded by the defendant to protect his right to confrontation.

We must first address the issue of the standing of the defendant to take this appeal. “ ‘Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy.’ ” Ardmare Construction Co. v. Freedman, 191 Conn. 497, 501, 467 A.2d 674 (1983), quoting Hiland v. Ives, 28 Conn. Sup. 243, 245, 257 A.2d 822 (1966). The question of standing does not involve an inquiry into the merits of the case. It merely requires the party to make allegations of a colorable claim of injury to an interest which is arguably protected or regulated by the statute or constitutional guarantee in question. Assn. of Data Processing Service Organization, Inc. v. Camp, 397 U.S. 150, 153, 90 S. Ct. 827, 25 L. Ed. 2d 184 (1970); Ducharme v. Putnam, 161 Conn. 135, 139, 285 A.2d 318 (1971); State v. Rado, 14 Conn. App. 322, 325, 541 A.2d 124 (1988); Reitzer v. Board of Trustees of State Colleges, 2 Conn. App. 196, 199-200, 477 A.2d 129 (1984). “[A] defendant ordinarily lacks standing to challenge a grant of immunity to a witness who testifies against him. United States v. Foster, 478 F.2d 1001, 1003 (7th Cir. 1973); State v. Melvin, 390 A.2d 1024, 1029 (Me. 1978).” State v. Williams, 206 Conn. 203, 207, 536 A.2d 583 (1988).

In this case, the defendant sought relief from this court allowing him the opportunity to cross-examine the psychiatric social worker of the victim to ascertain whether the victim had the mental capacity to testify or whether there was anything in the psychiatric information which might allow the defendant to challenge the credibility of the testimony of the victim. As a result of the action of this court, this case was remanded setting forth strict guidelines as to the procedure to be followed in the examination of the psychiatric social worker. The victim-witness was required to give his consent to this examination or else his testimony would have been stricken. The “voir dire for the purpose of determining the existence of such impeaching evidence” was required to be conducted in a courtroom in the presence of the defendant and his counsel who would be allowed to participate fully in the proceedings. State v. Pierson, supra, 228. These strict guidelines were adhered to by the trial court. The defendant was granted the rights denied him at the original trial to discover whether the psychiatric social worker had information that might affect the credibility of the victim. The court’s action in accepting the victim’s waiver through counsel without the presence of the victim has not prejudiced the defendant in his effort to obtain the impeachment evidence sought. The general principle of law that “a defendant does not have standing to challenge the method by which a witness against him has been immunized” is applicable. State v. Williams, supra, 208. The right to be free from testimonial compulsion is a personal one that may not be asserted vicariously. Fisher v. United States, 425 U.S. 391, 398-99, 96 S. Ct. 1569, 48 L. Ed. 2d 39 (1976); Broadrick v. Oklahoma, 413 U.S. 601, 610, 93 S. Ct. 2908, 37 L. Ed. 2d 830 (1973); State v. Williams, supra, 208. Like the marital privilege or the privilege against self-incrimination an erroneous denial of the psychiatrist-patient privilege does not infringe upon the right of any person other than the one to whom the privilege is given. See C. McCormick, Evidence (3d Ed.) §§ 83, 120. Under these circumstances, we decline to depart from the general rule that the defendant lacks standing to challenge the procedure by which a witness against him has been immunized and waives his immunity.

We conclude that the appeal must be dismissed because of the defendant’s lack of standing to appeal upon the ground he has raised.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 52-146d. (Formerly Sec. 52-146a). privileged COMMUNICATIONS BETWEEN PSYCHIATRIST AND PATIENT. DEFINITIONS. As used in sections 52-146c to 52-146Í, inclusive:

        “(1) ‘Authorized representative’ means (A) a person empowered by a patient to assert the confidentiality of communications or records which are privileged under sections 52-146c to 52-146Í, inclusive, or (B) if a patient is deceased, his personal representative or next of kin, or (C) if a patient is incompetent to assert or waive his privileges hereunder, (i) a guardian or conservator who has been or is appointed to act for the patient, or (ii) for the purpose of maintaining confidentiality until a guardian or conservator is appointed, the patient’s nearest relative;
      “(2) ‘Communications and records’ means all oral and written communications and records thereof relating to diagnosis or treatment of a patient’s mental condition between the patient and a psychiatrist, or between a member of the patient’s family and a psychiatrist, or between any of such persons and a person participating under the supervision of a psychiatrist in the accomplishment of the objectives of diagnosis and treatment, wherever made, including communications and records which occur in or are prepared at a mental health facility;
      “(3) ‘Consent’ means consent given in writing by the patient or his authorized representative.”

       “[General Statutes] Sec. 52-146c. privileged communications between PSYCHOLOGIST and patient, (a) As used in this section, ‘person’ means an individual who, for the purpose of securing psychological services, consults a licensed psychologist practicing in the area of clinical psychology.
      “(b) Except as provided in subsection (c) of this section, in civil and criminal cases, in proceedings preliminary thereto and in legislative and administrative proceedings, a licensed psychologist shall not disclose any communication made to him by any person while he is engaged in the practice of clinical psychology unless the person or his authorized representative, as defined in section 52-146d, waives the privilege.
      “(c) Relevant communications under this section shall not be privileged: (1) If a judge finds that any person after having been informed that the communications would not be privileged, has made the communications to a clinical psychologist in the course of a psychological examination ordered by the court, provided the communications shall be admissible only on issues involving the person’s psychological conditions; or (2) if, in a civil proceeding, a person introduces his psychological condition as an element of his claim or defense or, after a person’s death, his condition is introduced by a party claiming or defending through or as a beneficiary of the person, and the judge finds that it is more important to the interests of justice that the communications be disclosed than that the relationship between the person and psychologist be protected.”


author: Covello, J.

text:
    State of Connecticut v. Anthony Sealy
    (13374)
    Healey, Shea, Callahan, Covello and Hull, Js.

      Argued June 8
    decision released August 23, 1988

      Robert L. Genuario, for the appellant (defendant).

      Mary H. Lesser, deputy assistant state’s attorney, with whom, on the brief, was David Gold, assistant state’s attorney, for the appellee (state).
   Covello, J.

Following a trial by jury, the defendant, Anthony Sealy, was convicted of the crimes of carrying a dangerous weapon in violation of General Statutes § 53-206 (a), and threatening in violation of General Statutes § 53a-62 (a) (2). The defendant was sentenced on the weapons conviction to three years imprisonment, execution suspended after one year, to be followed by three years probation. On the threatening conviction he was sentenced to one year imprisonment. The sentences were ordered to run concurrently.

On appeal the defendant claims that the trial court erred in: (1) instructing the jury that General Statutes § 53-206 (a) would be violated if it found that the defendant had the weapon outside of his apartment in the common area; (2) denying the defendant’s motion for judgment of acquittal on the dangerous weapon charge; and (3) denying the defendant’s motion for judgment of acquittal on the threatening charge. We find no error.

The jury could reasonably have found the following: In August, 1986, the defendant lived at 768 Dixwell Avenue, New Haven. That dwelling consisted of three floors. A barbershop occupied the ground floor. The complaining witness, Louann Ford, occupied the only apartment on the second floor, and the defendant occupied the only apartment on the third floor. Access to the two apartments from the street was through a locked common front door and stairway, separated from the barbershop. Each tenant possessed a key to the common door.

On August 30,1986, Ford answered a knock on her apartment door and found the defendant standing outside her door on the second floor landing holding a butcher knife over his head. The defendant complained that someone had taken money from his apartment and he wanted it back. The defendant also said that he would “bum the house down” and people will die. Ford closed her door and at some point the defendant stuck the knife into the door. Ford left the building through the back door and called the police.

A responding police officer entered the building and when he was approximately halfway up the stairway between the second and third floors, the defendant came out of the third floor apartment screaming and carrying a butcher knife. The defendant came down two steps on the stairway and raised the butcher knife over his head. At this point the officer, now four to five steps away from the defendant, drew his gun and ordered the defendant to put down the knife. After the officer repeated this order several more times, the defendant finally put aside the knife.

The knife was found to have a four and one-half inch blade. The defendant did not have the necessary permit to carry such a knife.

I

The defendant first claims that the trial court erred in instructing the jury that § 53-206 (a) would be violated if the defendant had the knife outside his apartment in a common area. We conclude that the stairway and landing in this multi-unit dwelling are not part of the defendant’s residence or abode and, therefore, the trial court did not err in instructing the jury that § 53-206 would be violated if it found the defendant “had the knife outside of his apartment in a common area.”

Section § 53-206 (a) provides in relevant part: “Any person who carries upon his person any . . . knife the edged portion of the blade of which is four inches or over in length . . . unless such person has been granted a written permit . . . authorizing such person to carry such weapon . . . shall be fined not more than five hundred dollars or imprisoned not more than three years or both. . . . The provisions of this subsection shall not apply to . . . any person who is found with any such weapon or implement concealed upon his person while lawfully removing his household goods or effects from one place to another, or from one residence to another, nor to any person while actually and peaceably engaged in carrying any such weapon or implement from his place of abode or business to a place or person where or by whom such weapon or implement is to be repaired, or while actually and peaceably returning to his place of abode or business with such weapon or implement after the same has been repaired.” Implicit in this provision is an exception for carrying a weapon in an individual’s residence or abode, and a recognition of the protected zone of privacy in his or her dwelling.

The defendant claims that he had exclusive control over the landing and stairway between the second and third floor apartments. He contends that his exclusive use and control over this area rendered the landing and stairway part of his residence and, therefore, his carrying a weapon in this area was exempt from the operation of § 53-206 (a). The success of this claim turns upon whether a common stairway and landing is part of a residence or abode.

In State v. Brown, 198 Conn. 348, 357, 503 A.2d 566 (1986), this court stated that “an individual tenant may have a constitutionally cognizable expectation of privacy in areas where his use is exclusive, that is, where he has the legal right to control access and to exclude others.” United States v. Holland, 755 F.2d 253, 255-56 (2d Cir. 1985) (legitimate expectation of privacy of apartment tenant exists only in an area subject to the tenant’s exclusive control); United States v. Arboleda, 633 F.2d 985, 991 (2d Cir. 1980) (apartment dweller’s legitimate privacy expectation exists in area where tenant has the right to exclude others); State v. Ragsdale, 381 So. 2d 492, 497 (La. 1980) (apartment dweller had reasonable expectation of privacy in completely enclosed patio outside his apartment unit); Com monwealth v. Hall, 366 Mass. 790, 794-95, 323 N.E.2d 319 (1975) (tenant has expectation of privacy in areas over which he can control access).

In this case the defendant did not have the exclusive use of the area between the second and third floor apartments, as he did not have the legal right to control access and to exclude others. At any time there might be deliverypersons, the landlord, his or her agents, visitors, or residents of the other apartment in that common hallway and the defendant could not lawfully have excluded them from the premises. In other words, although the defendant may have been the principal user of the third floor landing and stairway, other individuals, however infrequent their use, also had a right to use that area. State v. Reddick, 207 Conn. 323, 334 n.5, 541 A.2d 1209 (1988). This being the case, we conclude that the stairway and landing which led to the defendant’s apartment were not part of his residence or abode. Therefore, the trial court did not err in instructing the jury that § 53-206 (a) would be violated if the defendant was carrying the knife in a common hallway.

II

The defendant next claims that the trial court erred in denying his motion for judgment of acquittal on the dangerous weapon charge. The defendant argues that there was insufficient evidence to find that he carried the knife anywhere other than in the stairway or landing of the apartment building in which he lived. The defendant relies on the assumption that this area is part of his residence and, therefore, not subject to § 53-206 (a). Because of our conclusion that the hallway in question was not part of the defendant’s home, we find no error on this issue.

III

Finally, the defendant claims that there was insufficient evidence at trial to support a verdict of guilty of threatening in violation of General Statutes § 53a-62. He argues that there was no evidence that he had the requisite intent to terrorize the victim.

In examining a claim of insufficient evidence, “[w]e 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). We conclude that the evidence presented at trial was sufficient to find the defendant guilty of threatening.

Generally, intent can be proved only by circumstantial evidence. State v. McDonough, 205 Conn. 352, 358-59, 533 A.2d 857 (1987) “ ‘ “Intent may be, and usually is, inferred from conduct. . . .” ’ ” State v. Morrill, 193 Conn. 602, 609, 478 A.2d 994 (1984), quoting State v. Sober, 166 Conn. 81, 92, 347 A.2d 61 (1974). The jury could reasonably have found that the defendant held a butcher knife over his head when he accosted Ford at her front door, and, ultimately stuck the knife into the door. Further, the defendant stated that he would “burn the house down” and that people will die. A jury could reasonably infer from these circumstances that the defendant intended to threaten Ford. “[WJhether such an inference should be drawn is properly a question for the jury to decide.” State v. Morrill, supra.

Viewed in the light most favorable to upholding the jury’s verdict, we conclude that the evidence of the defendant’s conduct presented at trial was sufficient to warrant an inference of intent and to support a finding of guilty.

There is no error.

In this opinion the other justices concurred.

       The trial court charged the jury in pertinent part: “Now, before you could find the defendant guilty of this offense, it must be found that it has been proven beyond a reasonable doubt that the defendant had the knife outside of his apartment in a common area. It would not be a violation of the law for the defendant to have the knife on his person within his place of abode or residence. The law would be violated only if you find that the knife is outside of his residence in a common hallway.”

       General Statutes § 53-206 (a) does not expressly except from its terms the carrying of a dangerous weapon in one’s dwelling or abode. This, however, is an implied exception. See General Statutes § 29-35 (allows the carrying of pistols or revolvers without a permit in one’s dwelling house or place of business). Section 29-35 provides in pertinent part: “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 . . . .”

       “[A] common hallway in a two-family house is the means of ingress and egress to both apartments for visitors, deliverymen and tradesmen, among others, where one might reasonably expect to find an assortment of individuals.” State v. Reddick, 207 Conn. 323, 334 n.5, 541 A.2d 1209 (1988).

       Other jurisdictions have addressed this issue regarding statutes similar to General Statutes § 53-206 (a). Our conclusion is supported by those cases. See White v. United States, 283 A.2d 21 (D.C. 1971) (floor above that on which the defendant resided is not part of his “dwelling house” within the statutory exemptions); Brant v. State, 349 So. 2d 674 (Fla. 1977) (hallway outside the hotel room, in which the defendant legally resided, is not part of the defendant’s “home” or “apartment” within statutory exemption); State v. Davidson, 217 N.W.2d 630 (Iowa 1974) (hallway adjacent to-the defendant’s apartment was not a “dwelling” where the defendant could lawfully carry gun); Commonwealth v. Seay, 383 N.E.2d 828 (Mass. 1978) (the foyer and stairway area of apartment building is not within statutory exemption); People v. Powell, 54 N.Y.2d 524, 430 N.E.2d 1285, 446 N.Y.S.2d 232 (1981) (no right of privacy in common hallway outside the residence of a limited group).

       General Statutes § 53a-62 provides in part: “(a) A person is guilty of threatening when: (1) By physical threat, he intentionally places or attempts to place another person in fear of imminent serious physical injury, or (2) he threatens to commit any crime of violence with the intent to terrorize another, to cause evacuation of a building, place of assembly, or facility of public transportation, or otherwise to cause serious public inconvenience, or (3) he threatens to commit such crime in reckless disregard of the risk of causing such terror or inconvenience.”


author: Hull, J.

text:
    Planning and Zoning Commission of the Town of Lebanon v. Bruce Gilbert
    (13320)
    Peters, C. J., Healey, Shea, Glass and Hull, Js.

      Argued June 2
    decision released August 23, 1988

      Mary E.‘ Holzworth, with whom, on the brief, was JohnR. Fitzgerald, for the appellant-appellee (plaintiff).

      Timothy S. Hollister, for the appellee-appellant (defendant).
   Hull, J.

The plaintiff, the planning and zoning commission of the town of Lebanon, appeals from a judgment of the trial court denying the plaintiff a permanent injunction and other relief. We find error.

The underlying facts are not in dispute. The town of Lebanon adopted zoning regulations effective March 1, 1966. The regulations divided the town into six use districts: (1) rural agricultural residence district; (2) lake district; (3) business district; (4) planned business district; (5) light industry district; and (6) planned industrial park district. Section 3.2 of the regulations provided that the boundaries of these districts were “established as shown on the zoning map, Town of Lebanon, Connecticut dated March 1,1966 and filed in the office of the Town Clerk of Lebanon, Connecticut which map is hereby declared to be part of these regulations.” With respect to the uses permitted in lake districts, § 4.3a (1) of the regulations provided that “[o]ne seasonal dwelling or camp on a minimum 6000 square foot lot, may be erected in any lake district as shown on the zoning map, namely: Williams Pond, Brewster Pond Stiles Pond, Big Pond, Savin Lake, Spencer Pond and Amston Lake.” Section 4.3a (2) of the regulations permitted a one-family, year-round dwelling in a lake district to be constructed on a lot of at least one acre. One other lake, Red Cedar Lake, was not listed in § 4.3a (1), but was shown on the zoning map as a lake district. In 1970, the zoning commission readopted the regulations without making any change to § 4.3a (1). In 1973, the regulations were amended to include Red Cedar Lake among the lakes enumerated in § 4.3a (1).

On October 13,1967, the defendant purchased a parcel of land on Red Cedar Lake. The lot measured less than one acre. His deed restricted occupancy of any dwelling on the land to summer residency. On March 2, 1970, the defendant applied for a permit to build a seasonal dwelling on his lot. The planning and zoning commission issued him a permit to construct a three and one-half room seasonal building. A certificate of occupancy stating that the house was seasonal and contained three and one-half rooms was issued by the town to the defendant in June, 1970. The house was completed as of October 1,1971. The defendant had, in fact, constructed an eight room, fully insulated house suitable for year-round occupancy.

During 1970 and 1971, the town’s zoning enforcement officer conducted a survey of all the homes in the lake districts to determine which properties were restricted to seasonal use. A letter and certificate of occupancy designating the defendant’s house as seasonal were mailed to his home in Hartford in October, 1971.

From September, 1971, to May, 1972, during the time the defendant was separated from his wife, he lived in his house at Red Cedar Lake on a full-time basis. Following his reconciliation with his wife through 1978, the defendant continued, to use his property every weekend, Christmas vacation, New Year’s, school holiday and summer vacation from school, occupying the premises in excess of thirty days during the off season.

Beginning in December, 1975, the town building official conducted annual on-site inspections of lake properties to ascertain whether they were being occupied on a year-round basis. The building official noticed that the defendant was living in his house during the winter months of 1978. Earlier that year, the defendant had unsuccessfully sought a variance from the zoning regulations to allow year-round occupancy of the dwelling. In 1979, 1980, 1982, 1983 and 1984, the plaintiff issued cease and desist orders directing the defendant to discontinue year-round occupancy of his house on Red Cedar Lake. The defendant did not comply with the cease and desist orders. In 1978, the defendant added a porch to his home and, without obtaining a building permit, constructed an addition to the building. In 1979 or 1980, he built a garage on the property without having obtained a building permit.

The plaintiff brought this action for an injunction and other relief pursuant to General Statutes § 8-12. The case was referred to an attorney state trial referee for trial of all but one issue. It was reserved to the court to decide the map incorporation issue, that is, to determine whether Red Cedar Lake, by virtue of its depiction as a lake district on the zoning map, although not listed in the zoning regulation, was subject to the restrictions imposed by § 4.3a. The referee recommended that the relief sought by the plaintiff be denied and that judgment be rendered for the defendant. The trial court, Schimelman, J., resolved the reserved issue in the defendant’s favor and the trial court, Hendel, J., rendered judgment in accordance with the report and recommendations of the referee. The plaintiff appealed and the defendant cross appealed to the Appellate Court. Pursuant to Practice Book § 4023, we transferred the case to this court.

The plaintiff claims error in the following conclusions reached below: (1) that Red Cedar Lake has not been zoned as a lake district since March 1, 1966; (2) that the 1973 zoning amendment including Red Cedar Lake in the enumeration of lakes in § 4.3a (1) was not adequately noticed and thus fatally defective and void; (3) that the alleged notice defect in the enactment of the 1973 zoning amendment was not cured by No. 75-16, § 20, of the Special Acts of 1975; and (4) that the defendant’s year-round occupancy is not in violation of the Lebanon zoning regulations. On cross appeal, the defendant claims: (1) that our review of the plaintiff’s claims with respect to the referee’s report is limited to a determination of whether the referee’s conclusions of fact were supported by the subordinate facts found; (2) that the trial court, Hendel, J., erred in considering and acting on the plaintiffs allegedly untimely filed objections to the referee’s report; and (3) that both the trial court and the referee erred in concluding that zoning regulations adopted in 1980 subjected the defendant property to lake district zoning. We find error in the trial court’s resolution of the map incorporation issue and hold that the 1966 zoning regulations subjected the defendant’s property to lake district zoning. Accordingly, we need not reach the issues raised by the plaintiff pertaining to the validity of the 1973 amendment to the regulations and the curative effect of No. 75-16, § 20, of the Special Acts of 1975. Further, we need not consider the issues advanced on the defendant’s cross appeal.

The text of § 4.3a (1) confronts us with an ambiguity as to the regulation’s scope. It allows for the construction of a seasonal dwelling in any lake district shown on the zoning map, but names only seven of the eight lake districts shown on the map.

The plaintiff contends that the zoning regulations, by specifically incorporating the zoning map, which depicts Red Cedar Lake as a lake district, legally designated Red Cedar Lake as a lake district and thus subjected it to the regulations. The plaintiff posits that Red Cedar Lake’s omission from the text of the regulation was merely an oversight. Alternatively, the plaintiff argues that, even if the regulation is construed to exclude Red Cedar Lake from the seasonal dwelling requirements, the defendant’s property is limited to the other permitted uses articulated by § 4.3a. Consequently, the plaintiff argues, the defendant is in violation of the regulations because his year-round dwelling was constructed on a lot of less than one acre.

The defendant does not challenge the validity of the 1966 zoning regulations .or of the adoption of the zoning map. Nor does he claim that the map was not incorporated with respect to any other provision of the regulations. He argues, instead, that the omission of Red Cedar Lake and the express enumeration of the other seven lakes in § 4.3a (1) of the zoning regulations exempts Red Cedar Lake from not only the seasonal dwelling restrictions, but all the regulations governing the lake districts, rendering the area unzoned. He further posits that the zoning map is merely supplemental and cannot prevail over the text of the zoning regulations.

At trial, the court, Schimelman, J., agreed with the defendant and rejected the plaintiffs contention that Red Cedar Lake was zoned as a lake district. According to the trial court, because zoning regulations are in derogation of common law property rights, their construction is confined to a literal interpretation of their text. The court also stated that any ambiguity in the regulations must be resolved in the property owner’s favor. Further, it rejected the plaintiff’s argument that the zoning map compensated for the alleged oversight in § 4.3a (1) on the ground that there was no legislative history or other proof to substantiate that claim. It was the trial court’s view that where a zoning map differs with the regulations, the map should be deemed supplemental to the text.

We conclude that the trial court’s view of the interrelationship of the zoning regulations and zoning map is so restrictive as to thwart the intended effect of the town’s zoning scheme and, taken to its logical conclusion, would achieve a result that benefits neither the town nor the defendant. Accordingly, we find its resolution of the map incorporation issue erroneous.

The principles governing interpretation of zoning regulations are well settled. Promulgation of zoning regulations is a legislative process, although local in scope. Park Regional Corporation v. Town Plan & Zoning Commission, 144 Conn. 677, 682, 136 A.2d 785 (1957). We interpret an enactment to find the expressed intent of the legislative body from the language it used to manifest that intent. Harlow v. Planning & Zoning Commission, 194 Conn. 187, 193-94, 479 A.2d 808 (1984); Doe v. Institute of Living, Inc., 175 Conn. 49, 56-57, 392 A.2d 491 (1978); Dana-Robin Corporation v. Common Council, 166 Conn. 207, 221, 348 A.2d 560 (1974); Park Regional Corporation v. Town Plan & Zoning Commission, supra. The words employed in zoning regulations are construed according to the

commonly approved usage of the language. Fisher v. Zoning Board of Appeals, 143 Conn. 358, 361, 122 A.2d 729 (1956). Zoning regulations, as they are in derogation of common law property rights, cannot be construed to include or exclude by implication what is not clearly within their express terms. Park Construction Co. v. Planning & Zoning Board of Appeals, 142 Conn. 30, 35, 110 A.2d 614 (1954). A property owner should be able reasonably to ascertain from the regulations how to use the property in compliance with them. Shell Oil Co. v. Zoning Board of Appeals, 156 Conn. 66, 70, 238 A.2d 426 (1968); Lebanon v. Woods, 153 Conn. 182, 191, 215 A.2d 112 (1965). Zoning regulations that carve out districts must afford adequate information to enable one to determine the properties comprising each district and the uses permitted and prohibited therein. Lebanon v. Woods, supra, 191-92.

Whenever possible, the language of zoning regulations will be construed so that no clause is deemed superfluous, void or insignificant. Essex Leasing, Inc. v. Zoning Board of Appeals, 206 Conn. 595, 601, 539 A.2d 101 (1988); Melody v. Zoning Board of Appeals, 158 Conn. 516, 521, 264 A.2d 572 (1969). The regulations must be interpreted so as to reconcile their provisions and make them operative so far as possible. Donohue v. Zoning Board of Appeals, 155 Conn. 550, 557, 235 A.2d 643 (1967). When more than one construction is possible, we adopt the one that renders the enactment effective and workable and reject any that might lead to unreasonable or bizarre results. Maciejewski v. West Hartford, 194 Conn. 139, 151-52, 480 A.2d 519 (1984); Verrastro v. Sivertsen, 188 Conn. 213, 220-21, 448 A.2d 1344 (1982); Muller v. Town Plan & Zoning Commission, 145 Conn. 325, 331, 142 A.2d 524 (1958).

We have not before considered the interplay between a zoning map and the text of the regulations into which it has been incorporated. Some authorities posit that where a map has been incorporated in and made a part of zoning regulations, construction of a regulation requires that its text and the map be considered together. Dumont Lowden, Inc. v. Hansen, 38 N.J. 49, 54-55, 183 A.2d 16 (1962); Martin v. Marble Cliff Quarries Co., 175 Ohio 454, 457-58, 196 N.E.2d 95 (1964); 82 Am. Jur. 2d 498, 500, Zoning and Planning § 68. Others maintain that a zoning map is merely supplemental to the text of a zoning enactment; Lane County v. Heintz Construction Co., 228 Or. 152, 163, 364 P.2d 627 (1961); that the map depends, for its effectiveness, upon the ordinance that adopts it; Wainwright v. Wheatridge, 38 Colo. App. 485, 487, 558 P.2d 1005 (1976); and that its adoption or alteration does not itself constitute an exercise of zoning power. Id.; Racine County v. Alby, 65 Wis. 2d 574, 580-81, 223 N.W.2d 438 (1974).

We decline to discount the importance of a map made part of zoning regulations. We agree with the view that “[a] zoning map is an integral part of the zoning regulations, without which the regulations are said to be meaningless”; 2 E. Yokley, Zoning Law and Practice (4th Ed. 1978) § 9-5, p. 43; and conclude that the official map, read together with the relevant zoning regulations, may serve to disclose the intention of the local zoning authorities. 5 P. Rohan, Zoning and Land Use Controls (1988) § 36.01 [8].

Our examination of the Lebanon zoning regulations, read together with the zoning map, discloses that the town intended them to cover all the property within its limits. The regulations create six discrete zoning districts and detail uses for each of them. Reference to the Lebanon zoning map is essential to determine the zone in which any parcel of property in the town lies. The text of the regulations does not set forth the extent of each zone but expressly, through § 3.2 of the regulations, incorporates the map to delineate the boundaries. Neither the text of the regulations nor the zoning map, standing alone, is sufficient to apprise a property owner of the uses permitted on his land. Any property owner wishing to ascertain the ways in which property may be used must locate the parcel on the map to determine its zoning classification and consult the text of the regulations to find the uses permitted. That the defendant was aware that his property was situated in a lake district zone and covered by § 4.3a (1) is evidenced by his application for a permit to build a seasonal dwelling, his acceptance of certificates of occupancy entitling him to seasonal occupancy, and his application for a variance to occupy his house on a year-round basis.

We are unconvinced by the defendant’s argument that the apparent ambiguity of § 4.3a (1) compels the conclusion that Red Cedar Lake is not zoned. The regulation purports to impose its requirements on “any Lake District as shown on the Zoning Map.” We are unpersuaded that the failure of the regulation to include Red Cedar Lake in its enumeration of lake districts negates the effect of the quoted language. To ignore the reference to the zoning map, and hold that Red Cedar Lake is not zoned would be to contravene the purpose of the zoning scheme to regulate all the land within the town lines. Moreover, were we to agree with the defendant that his property was unzoned, it would avail him nothing since, under the zoning scheme established by the town, he would not be free to build as he chose on his land. The zoning regulations expressly list the uses permissible in each zone, and affirmatively prohibit all uses not specifically permitted. Since, in Lebanon, property may be used only in conformity with the zoning regulations, any failure to prescribe permissible uses for the land renders it unusable for any purpose until uses are authorized. Park Regional Corporation v. Town Plan & Zoning Commission, supra, 682-83.

Taking the text of the regulations and the zoning map together, we conclude that Red Cedar Lake was zoned as a lake district and that a property owner could reasonably ascertain that property in the Red Cedar Lake district was subject to the zoning regulations appertaining to lake district uses. This result is consistent with the town’s intent, expressed by the overall zoning scheme, to regulate the uses of all the property within the town lines and to prescribe certain uses for lake districts. We are unpersuaded that Red Cedar Lake is differentiated from the other lake districts so designated on the zoning map except by its omission in the enumeration of lake districts in § 4.3a (1). We conclude that the failure to list Red Cedar Lake in the lake district regulation was, as the plaintiff contends, an oversight. Therefore, the trial court erred in holding that the zoning map was not incorporated into § 4.3a of the Lebanon zoning regulations.

We also agree with the plaintiff that the trial court abused its discretion in denying the relief requested. Since the regulations prohibited year-round occupancy in a lake district on a lot of less than one acre, the defendant was clearly in violation of the zoning regulations. Ordinarily, the decision to grant or deny injunctive relief is within the sound discretion of the trial court. Dupuis v. Submarine Base Credit Union, Inc., 170 Conn. 344, 356, 365 A.2d 1093 (1976); Dimmock v. New London, 157 Conn. 9, 18-19, 245 A.2d 569 (1968). When, however, the only reasonable conclusion is that the plaintiff is entitled to an injunction, this court may order its issue where the trial court has refused to do so. Dimmock v. New London, supra, 19. We so order, but leave the terms of the injunction, including the time for compliance, to the trial court. In addition to the injunction, the plaintiff sought attorney’s fees, costs, a cash bond to ensure compliance, imposition of a civil penalty and any other relief deemed appropriate by the court. We also direct the trial court to consider the propriety of other relief.

There is error, the judgment is set aside and the case is remanded to the trial court with direction to render judgment for the plaintiff and grant an injunction and determine other appropriate relief.

In this opinion the other justices concurred.

       The town of Lebanon adopted interim zoning regulations in 1962. The 1966 regulations were adopted as permanent regulations.

       In 1966, § 4.3 of the Lebanon zoning regulations provided:
      “l-lake district
      “a. Permitted Uses.
      “(1) One Seasonal dwelling or camp on a minimum 6,000 sq. ft. lot, may be erected in any Lake District as shown on the Zoning Map, namely: Williams Pond, Brewster Pond, Stiles Pond, Big Pond, Savin Lake, Spencer Pond and Amston Lake.
      “(2) One 1-family year-round dwelling on minimum one acre lot.
      “(3) Public park, playground, beach, athletic field.
      “(4) Accessory buildings and uses.
      “b. Special Regulations:
      “(1) All structures and uses shall comply with Height, Area and Yard Requirements; Off-Street Parking and Loading Requirements; and the regulations governing Signs.
      “(2) All uses not specifically permitted are prohibited.”

        The minimum lot size for a seasonal dwelling has since been increased to 12,000 square feet, and the minimum lot size for a one-family year-round dwelling has been increased to two acres.
      Occupancy of a seasonal dwelling was permitted from June 1 to November 1, and restricted to a total of thirty days from November 1 to June 1.

       The defendant’s lot is approximately 14,700 square feet. One acre measures 43,560 square feet.

       See footnote 2, supra.

       “[General Statutes] Sec. 8-12. procedure when regulations are violated. If any building or structure has been erected, constructed, altered, converted or maintained, or any building, structure or land has been used, in violation of any provision of this chapter or of any bylaw, ordinance, rule or regulation made under authority conferred hereby, any official having jurisdiction, in addition to other remedies, may institute an action or proceeding to prevent such unlawful erection, construction, alteration, conversion, maintenance or use or to restrain, correct or abate such violation or to prevent the occupancy of such building, structure or land or to prevent any illegal act, conduct, business or use in or about such premises. Such regulations shall be enforced by the officer or official board or authority designated therein, who shall be authorized to cause any building, structure, place or premises to be inspected and examined and to order in writing the remedying of any condition found to exist therein or thereon in violation of any provision of the regulations made under authority of the provisions of this chapter or, when the violation involves grading of land or the removal of earth, to issue, in writing, a cease and desist order to be effective immediately. The owner or agent of any building or premises where a violation of any provision of such regulations has been committed or exists, or the lessee or tenant of an entire building or entire premises where such violation has been committed or exists, or the owner, agent, lessee or tenant of any part of the building or premises in which such violation has been committed or exists, or the agent, architect, builder, contractor or any other person who commits, takes part or assists in any such violation or who maintains any building or premises in which any such violation exists, shall be fined not less than ten nor more than one hundred dollars for each day that such violation continues; but, if the offense is wilful, the person convicted thereof shall be fined not less than one hundred dollars nor more than two hundred and fifty dollars for each day that such violation continues, or imprisoned not more than ten days for each day such violation continues or both; and the superior court shall have jurisdiction of all such offenses, subject to appeal as in other cases. Any person who, having been served with an order to discontinue any such violation, fails to comply with such order within ten days after such service, or having been served with a cease and desist order with respect to a violation involving grading of land or removal of earth, fails to comply with such order immediately, or continues to violate any provision of the regulations made under authority of the provisions of this chapter specified in such order shall be subject to a civil penalty of five hundred dollars, payable to the treasurer of the municipality. In any criminal prosecution under this section, the defendant may plead in abatement that such criminal prosecution is based on a zoning ordinance or regulation which is the subject of a civil action wherein one of the issues is the interpretation of such ordinance or regulations, and that the issues in the civil action are such that the prosecution would fail if the civil action results in an interpretation different from that claimed by the state in the criminal prosecution. If the court renders judgment for such municipality and finds that the violation was wilful, the court shall allow such municipality its costs, together with reasonable attorney’s fees to be taxed by the court. The court before which such prosecution is pending may order such prosecution abated if it finds that the allegations of the plea are true.”

       At trial, the defendant asserted a special defense of estoppel against the town, claiming that, in 1968, he was led by a now deceased building official and zoning enforcement officer to believe that he was permitted to build a year-round house on his property. The referee found that the defendant failed to prove this claim. The defendant also argued that since other property owners at Red Cedar Lake, who were allegedly situated similarly to him, had been granted certificates of zoning compliance, enforcement of the regulations against him was arbitrary. The referee concluded that the town was not estopped from enforcing the zoning regulations against the defendant, and the defendant did not object to this conclusion. In his brief to this court and at oral argument, the defendant adverted to this issue of allegedly inconsistent zoning enforcement at Red Cedar Lake. He conceded, however, that he was not pursuing any claim of estoppel. Accordingly, we need not explore the question of whether the town has enforced its regulations in an arbitrary manner and what the legal effect of such arbitrary enforcement would be.