author: Peters, C. J. Shea, J.,

text:
    State of Connecticut v. Jerry D. Daniels
    (12948)
    (12963)
    Peters, C. J., Healey, Shea, Callahan, Glass, Covello and Hull, Js.

      Argued October 4
    decision released November 22, 1988

      C. Robert Satti, Sr., state’s attorney, with whom were JohnM. Massameno and Steven Sellers, assistant state’s attorneys, for the appellant-appellee (state).

      Joseph G. Bruckmann, assistant public defender, with whom, on the brief, was Joette Katz, public defender, for the appellee-appellant (defendant).
   Peters, C. J.

The principal issue in these appeals, after a remand for articulation, is whether the trial court abused its discretion in dismissing the penalty-phase of a death penalty proceeding pursuant to General Statutes (Rev. to 1983) § 53a-46a, and in imposing a life sentence, after the jury was unable to reach a unanimous decision on the existence of a mitigating factor. In State v. Daniels, 207 Conn. 374, 394-96, 542 A.2d 306 (1988) (Daniels I), this court determined that such disagreement authorized the trial court to declare a mistrial. Because we were, however, unclear about the reasoning underlying the trial court’s action, we requested an articulation. We now affirm the trial court’s decision and, after considering one other issue relating to sentencing that remained undecided in Daniels I, find no error.

For the purposes of the present appeals, we need only reiterate the following facts, which are more fully reported in Daniels I, supra, 378-81. After a trial to a three judge court, the defendant, Jerry D. Daniels, was convicted of one count of murder in the death of Christine Whipple pursuant to General Statutes (Rev. to 1983) § 53a-54a, one count of capital felony in the deaths of Christine Whipple and her daughter Amy Russell pursuant to General Statutes (Rev. to 1983) § 53a-54b (8), and one count of second degree sexual assault concerning Christine Whipple pursuant to General Statutes (Rev. to 1983) § 53a-71. The prosecution sought the death penalty for the capital felony conviction and the defendant elected a trial by jury at the penalty stage. The jury found the existence of an aggravating factor, but despite extensive deliberations and receiving a “Chip Smith” charge, could not reach a unanimous decision on the existence of a mitigating factor. The trial court then dismissed the jury and sentenced the defendant to two consecutive terms of life imprisonment, one each for the murder and capital felony convictions, and to a consecutive term of ten years imprisonment for the sexual assault conviction.

On the prior appeal, in which both the state and the defendant took issue with various trial court rulings, we determined that the trial court had correctly construed the death penalty statute to impose upon the state the burden of proving one of the statutorily defined aggravating factors beyond a reasonable doubt, and thereafter to impose upon the defendant the burden of proving a statutorily defined mitigating factor by a preponderance of the evidence. Daniels I, supra, 383-86. We concluded, furthermore, that neither of these burdens can be met without a unanimous finding by the trier of fact. Id., 386-94. Finally, we held that, if the jury cannot agree on the existence of a mitigating factor, the trial court has discretion to declare a mistrial. Id., 394-96. In such circumstances, we determined that the trial court may pursue one of three courses of action: it may declare a mistrial; it may make factual findings “acquitting” the defendant of the death penalty; or it may exercise its discretion, pursuant to General Statutes § 54-56, to dismiss the death penalty proceeding. Id., 396-97. We were, however, unsure whether the trial court was aware of its authority to declare a mistrial and, if it were aware, what underlay its decision of fact and law leading to its imposition of a life sentence on the defendant for the capital felony conviction. Accordingly, we remanded the case to the trial court for a further articulation of its reasons for dismissing the death penalty phase of the proceeding and imposing the life sentence. Id., 400-403.

The trial court responded with an articulation on June 13,1988, which made it clear that the court understood that it had the authority to declare a mistrial, but had elected not to do so. The court then went on to describe why it had decided to dismiss the death penalty proceeding and to impose a life sentence upon the defendant. It stated that it “was determined to resolve the case with finality.”

On this record, there are two issues before us. On the state’s appeal, the question is whether a death penalty proceeding must be reinstated because the trial court either lacked the discretion to impose a life sentence or abused its discretion in its exercise. The defendant maintains, to the contrary, that principles of double jeopardy preclude appellate review of the trial court’s decision. On the defendant’s appeal, the question is one we did not reach in Daniels I: whether the trial court violated the principles of double jeopardy in imposing two life sentences upon the defendant, one for the murder of Christine Whipple and the other for the capital felony of killing Christine Whipple and Amy Russell. We find no error.

I

Turning to the state’s appeal, we must address two issues in order to ascertain whether the trial court erroneously imposed a life sentence. First, is the court’s decision, as the defendant maintains, barred from appellate review by applicable principles of double jeopardy? Second, did the court, as the state maintains, have authority or justification for its exercise of discretion to impose a life sentence?

The defendant’s double jeopardy argument comes to us in two versions. The defendant maintains that, if the trial court exercised discretion in imposing a life sentence, its action is not further reviewable after the beginning of the execution of his life sentence. He further maintains that, if the trial court’s action amounted to a fact-based ‘ ‘acquittal, ’ ’ then, as we held in Daniels I, supra, 397-99, such an “acquittal” bars a second capital sentencing hearing. We find neither of these arguments persuasive.

In Daniels I, we considered and rejected the defendant’s argument that the beginning of the execution of his life sentence foreclosed any proceedings to impose a penalty that would be more severe. Id., 387. We noted that double jeopardy does not preclude the correction of a sentence that is illegal. Id. The defendant now renews this claim, arguing that any sentence that the trial court has discretion to impose is not illegal. While that argument might have force under other circumstances, such as when a trial court is selecting one among a range of permissible statutory sanctions, it is inappropriate in this case where the consequence of the trial court’s decision is the dismissal of the penalty phase of a capital felony proceeding. Were such an exercise of discretion improper, the court would have acted illegally in imposing a life sentence. “Correction of this illegality, were it to be shown, would not violate double jeopardy. United Sates v. Fogel, 829 F.2d 77, 83 (D.C. Cir. 1987); State v. Nardini, 187 Conn. 109, 116, 445 A.2d 304 (1982); State v. Pina, 185 Conn. 473, 479, 440 A.2d 962 (1981); see United States v. DiFrancesco, 449 U.S. 117, 101 S. Ct. 426, 66 L. Ed. 2d 328 (1980).” Daniels I, supra, 387.

The defendant’s alternative double jeopardy argument rests on the proposition that the trial court’s articulation amounted to an “acquittal on the merits” of the death penalty. We posited in Daniels I, supra, 397, that, if the trial court were to reach such a fact-bound determination, double jeopardy would bar further review because another capital sentencing hearing would be foreclosed. We held that the test was “ ‘whether the ruling of the judge, whatever its label, actually represents a resolution, correct or not, of some or all of the factual elements of the offense charged.’ United States v. Martin Linen Supply Co., 430 U.S. 564, 571, 97 S. Ct. 1349, 51 L. Ed. 2d 642 (1977).” Daniels I, supra, 399. Applying that test to the trial court’s original oral memorandum and its subsequent articulation, we conclude that the trial court was not exercising the power conferred upon it, by Practice Book § 883, to find as a matter of fact that “the evidence would not reasonably permit a finding of guilty.”

Examination of the court’s remarks at trial and in its articulation discloses nothing that either expressly or impliedly can be construed as the equivalent of a factual finding that the evidence produced at the hearing on mitigating factors reasonably required a finding that the existence of a mitigating factor had been proven. The statements that come closest to such a finding were the following. At the trial, the court remarked that “ T feel that the State had its best shot at this trial; and, with all of that, there was a division of six and six. I see no further reason to prolong the Daniels sentencing phase of the trial any further.’ ” Daniels I, supra, 400. In its articulation, the court merely reiterated that a jury could reasonably have found the existence of a mitigating factor: “In the context of the statutory definition of mitigating factors, there was sufficient evidence for jurors to come to a reasonable conclusion that there were one or more mitigating factors. In fact, six jurors did.” Indeed the court expressly articulated its intent to exercise its discretion, and emphasized its concern for the futility and expense of another trial, and its adverse impact upon the defendant, the victims’ family, and society. We believe these statements indicate an exercise of discretion pursuant to General Statutes § 54-56, rather than an acquittal of the death penalty. In the light of these circumstances, the defendant’s double jeopardy argument must fail.

We turn, then, to the state’s contention that the trial court’s exercise of its discretion was unwarranted as a matter of law. That claim, too, comes to us in two versions: a lack of authority to exercise discretion to dismiss the death penalty phase of a capital felony proceeding, and a misuse of such authority if it existed.

The state raises a serious question about the applicability of § 54-56 to the penalty phase of any capital felony prosecution, and particularly about its applicability in this case. We decline to address this question at this juncture. In Daniels I, our remand for articulation specifically instructed the trial court, that “[i]f the trial court intended to exercise its authority under General Statutes § 54-56 to dismiss the death penalty phase of the proceeding and refused to grant a mistrial for this reason, it should say so explicity to provide a basis for review by this court. See State v. Corchado, [200 Conn. 453, 458-59, 512 A.2d 183 (1986)].” Daniels I, supra, 402-403. The applicability of § 54-56 thus impliedly became the law of this case.

This court follows the “well-recognized principle of law that the opinion of an appellate court, so far as it is applicable, establishes the law of the case upon a retrial, and is equally obligatory upon the parties to the action and upon the trial court.” Dacey v. Connecticut Bar Assn., 184 Conn. 21, 23, 441 A.2d 49 (1981); see also Gray v. Mossman, 91 Conn. 430, 434, 99 A. 1062 (1917). “The rule is that a determination once made will be treated as correct throughout all subsequent stages of the proceeding except when the question comes before a higher court”; F. James & G. Hazard, Civil Procedure (3d Ed. 1985) § 11.5, p. 593; and applies both to remands for new trial; Dacey v. Connecticut Bar Assn., supra; Laurel, Inc. v. Commissioner of Transportation, 173 Conn. 220, 222, 377 A.2d 296 (1977); New Haven Trust Co. v. Camp, 83 Conn. 360, 368-69, 76 A. 1100 (1910); and to remands for articulation. Powers v. Powers, 186 Conn. 8, 9 n.1, 438 A.2d 846 (1982).

In accordance with the law of the case doctrine, the trial court’s articulation did not reopen any matters previously decided in our opinion in Daniels I. The trial court’s clarification that it had indeed intended to exercise its discretion in accordance with § 54-56 therefore does not require us to reconsider its authority to do so.

We consider finally the question that we did reserve in Daniels I, supra, 402-403, whether the trial court abused its discretion by imposing a life sentence rather than declaring a mistrial and ordering another death penalty proceeding. We conclude that the trial court did not abuse its discretion.

We announced the applicable test for abuse of the discretion conferred by § 54-56 in State v. Corchado, supra, where we held that a trial court’s power to dismiss criminal proceedings “should be sparingly exercised and then only with great caution and awareness of the probable consequences.” Id., 464. We noted that a proper exercise of discretion involved a balancing process “which weighs the interests of the state and society in having the defendant again stand trial against the interest of the defendant ... in not being subjected to a new trial.” Id., 458. “[T]he discretion to be exercised must be informed and guided by considerations of fundamental fairness that are ingrained in the concept of due process of law.” Id., 459.

The trial court’s comments both at the sentencing stage and in its articulation reveal just such a balancing as Corchado requires. The court’s comments about the unworkability of the statute and the futility of pursuing a second penalty phase, along with its statements about the victims’ family, the inhabitants of the area and the resources of the state’s attorney’s office and the public defender’s office, evidenced its concern for the interests of the state and society. The court manifested its concern for fairness to the defendant in its observation that “[i]n the context of the statutory definition of mitigating factors, there was sufficient evidence for jurors to come to a reasonable conclusion that there were one or more mitigating factors. In fact, six jurors did.” On this record, we are persuaded that “considerations of fundamental fairness” guided the trial court and that it weighed properly the separate interests in this case, as mandated by Corchado. Accordingly, we conclude that the trial court did not abuse its discretion under § 54-56 in declining to declare a mistrial and in sentencing the defendant to life imprisonment.

II

The defendant’s life sentence on the capital felony count was added by the trial court to another term of life imprisonment on the murder count, and ten years’ imprisonment on the sexual assault count. The defendant’s appeal challenges the dual terms of life imprisonment as a violation of his right against double jeopardy. This issue is one we did not reach in Daniels I.

The defendant’s claim focuses on the fact that his capital felony conviction was based upon the “murder of two or more persons [Christine Whipple and Amy Russell] at the same time or in the course of a single transaction.” General Statutes (Rev. to 1983) § 53a-54b (8). He maintains that a life sentence for that crime, because it already encompasses the murder of Christine Whipple, cannot constitutionally be combined with another life sentence for his conviction on another count separately charging him with the murder of Christine Whipple. General Statutes (Rev. to 1983) § 53a-54a. We have recently held, “[i]t is a violation of the double jeopardy clause of the fifth amendment to impose punishment for both the capital felony and the murders that constitute the lesser included offense.” State v. Wood, 208 Conn. 125, 145, 545 A.2d 1026, cert. denied, U.S. , 109 S. Ct. 235, 102 L. Ed. 2d 225 (1988); see also State v. Usry, 205 Conn. 298, 318, 533 A.2d 212 (1987). Accordingly, the defendant urges us to hold that both convictions cannot stand.

The defendant’s capital felony conviction necessarily included an underlying finding, beyond a reasonable doubt, that he had committed two murders in violation of § 53a-54a. The defendant conceded as much in oral argument in this court. Although the double jeopardy principle precludes double punishment for either of the underlying murders, it does not, in our view, preclude the imposition of one life sentence for each of them, when the state has joined a separate count of murder to a count of capital felony. In this case, the murder of Amy Russell was a lesser included offense encompassed within the capital felony conviction. For punishment purposes, it was not unconstitutionally duplicitous to join this conviction with the defendant’s separate conviction for the murder of Christine Whipple.

It is of no moment that the trial court did not expressly explain its imposition of two life sentences as an exercise of its power with respect to lesser included crimes. Once the court concluded that the capital felony conviction should result in a life sentence, it clearly had the authority to reduce the capital felony conviction to that of the lesser included offense of murder, because the defendant was at all times fully aware of his potential liability for that offense. State v. Scielzo, 190 Conn. 191, 205, 460 A.2d 951 (1983); State v. Saracino, 178 Conn. 416, 421, 423 A.2d 102 (1979); State v. Grant, 177 Conn. 140, 147-49, 411 A.2d 917 (1979). We therefore conclude that the court did not err in imposing two life sentences upon the defendant.

There is no error.

In this opinion Healey, Glass and Hull, Js., concurred.

Shea, J.,

concurring. Although I agree with the majority in other respects, I disagree with its failure to address the issue of the applicability of General Statutes § 54-56 to the death penalty phase of a capital felony proceeding. The majority opinion justifies its refusal to resolve this issue upon the doctrine of the law of the case as applied to our remand in Daniels I, which ordered that “[i]f the trial court intended to exercise its authority under General Statutes § 54-56 to dismiss the death penalty phase of the proceeding and refused to grant a mistrial for this reason, it should say so explicitly to provide a basis for review by this court.” State v. Daniels, 207 Conn. 374, 402-403, 542 A.2d 306 (1988) (Daniels I).

“The rule of the law of the case is a rule of practice, based upon sound policy that when an issue is once litigated and decided, that should be the end of the matter.” United States v. U. S. Smelting Co., 339 U.S. 186, 198, 70 S. Ct. 537, 94 L. Ed. 750, reh. denied, 339 U.S. 972, 70 S. Ct. 994, 94 L. Ed. 1379 (1950). An essential prerequisite to the application of the rule is that the issue must have been decided in the prior litigation. The most meticulous scrutiny of Daniels I does not even intimate that this court has decided whether § 54-56 was applicable to the death penalty phase of this case. The issue was never raised by counsel in Daniels I and, accordingly, was never briefed. The Daniels I opinion quite properly contains no discussion of its applicability, because it could not be determined from the record before us whether the trial court had intended to dismiss the proceeding pursuant to § 54-56. At that stage we could not have decided whether § 54-56 authorized such a dismissal because we could not ascertain whether the trial court had relied on that statute. Our purpose in ordering the remand was to obtain a record for the purpose of reviewing the trial court’s action. For this reason we directed the trial court, if it had relied upon the statute, to “say so explicitly to provide a basis for review by this court.” (Emphasis added.) Daniels I, supra, 403. Nowhere in Daniels I is it suggested that our review of the action of the trial court after the remand would be restricted to whether there had been an abuse of discretion in exercising the authority conferred by the statute without consideration of its applicability.

I agree, nevertheless, with the result reached by the majority, because § 54-56 expressly declares that the criminal courts of this state “shall at all times have jurisdiction and control over . . . criminal cases pending therein. . . .” In State v. Corchado, 200 Conn. 453, 512 A.2d 183 (1986), this court gave an expansive interpretation to the further provision of the statute authorizing the court to “dismiss any information . . . if, in the opinion of the court, there is not sufficient . . . cause to justify ... the placing of the person accused therein on trial.” We held that the trial court had properly concluded that there was a lack of sufficient cause to retry a defendant, following a remand of this court for a new trial, when, by the time the second trial was to begin, the defendant had fully served the sentence originally imposed. Id., 460-61. We concluded that the term “cause” gave the court authority to dismiss where the legitimate interest of the state did not outbalance the “defendant’s protestations that justice required no more from him than had been exacted.” Id., 463-64. We analogized the authority of a court to dismiss a case under § 54-56 to the power of a court in New York to dismiss an information “ ‘in the interest of justice.’ ” Id., 461.

In my view, § 54-56 as it previously has been construed by the court and applied by the trial courts is applicable to the penalty phase of a capital felony prosecution. See State v. Carroll, 13 Conn. Sup. 112 (1944). Accordingly, I concur in the result.

Callahan, J., with whom Covello, J., joins, concurring. I concur in Part I of the majority opinion because of the posture of our remand in State v. Daniels, 207 Conn. 374, 542 A.2d 306 (1988) (Daniels I). Since joining the opinion in Daniels I, however, I have been beset by serious doubts concerning the applicability of General Statutes § 54-56 to the penalty phase of a capital felony trial. I would, therefore, confine our present holding concerning § 54-56 to the present case. I agree with Part II of the majority opinion.

       General Statutes (Rev. to 1983) § 53a-46a provides: “hearing on imposition OF DEATH PENALTY. AGGRAVATING AND MITIGATING FACTORS, (a) A person shall be subjected to the penalty of death for a capital felony only if a hearing is held in accordance with the provisions of this section.
      “(b) For the purpose of determining the sentence to be imposed when a defendant is convicted of or pleads guilty to a capital felony, the judge or judges who presided at the trial or before whom the guilty plea was entered shall conduct a separate hearing to determine the existence of any mitigating factor concerning the defendant’s character, background and history, or the nature and circumstances of the crime, including any mitigating factor set forth in subsection (f), and any aggravating factor set forth in subsection (g). Such hearing shall not be held if the state stipulates that none of the aggravating factors set forth in subsection (g) of this section exists or that one or more mitigating factors exists. Such hearing shall be conducted (1) before the jury which determined the defendant’s guilt, or (2) before a jury impaneled for the purpose of such hearing if (A) the defendant was convicted upon a plea of guilty; (B) the defendant was convicted after a trial before three judges as provided in subsection (b) of section 53a-45; or (C) if the jury which determined the defendant’s guilt has been discharged by the court for good cause or, (3) before the court, on motion of the defendant and with the approval of the court and the consent of the state.
      “(c) In such hearing the court shall disclose to the defendant or his counsel all material contained in any presentence report which may have been prepared. No presentence information withheld from the defendant shall be considered in determining the existence of any mitigating or aggravating factor. Any information relevant to any mitigating factor may be presented by either the state or the defendant, regardless of its admissibility under the rules governing admission of evidence in trials of criminal matters, but the admissibility of information relevant to any of the aggravating factors set forth in subsection (g) shall be governed by the rules governing the admission of evidence in such trials. The state and the defendant shall be permitted to rebut any information received at the hearing and shall be given fair opportunity to present argument as to the adequacy of the information to establish the existence of any mitigating or aggravating factor. The burden of establishing any of the factors set forth in subsection (g) shall be on the state. The burden of establishing any mitigating factor shall be on the defendant.
      “(d) The jury or, if there is no jury, the court shall return a special verdict setting forth its findings as to the existence of any aggravating or mitigating factor.

        “(e) If the jury or, if there is no jury, the court finds that one or more of the factors set forth in subsection (g) exists and that no mitigating factor exists, the court shall sentence the defendant to death. If the jury or, if there is no jury, the court finds that none of the factors set forth in subsection (g) exists or that one or more mitigating factors exist, the court shall impose a sentence in accordance with subdivision (1) of section 53a-35a.
      “(f) The court shall not impose the sentence of death on the defendant if the jury or, if there is no jury, the court finds by a special verdict, as provided in subsection (d), that any mitigating factor exists. The mitigating factors to be considered concerning the defendant shall include, but are not limited to, the following: That at the time of the offense (1) he was under the age of eighteen or (2) his mental capacity was significantly impaired or his ability to conform his conduct to the requirements of law was significantly impaired but not so impaired in either case as to constitute a defense to prosecution or (3) he was under unusual and substantial duress, although not such duress as to constitute a defense to prosecution or (4) he was criminally liable under sections 53a-8, 53a-9 and 53a-10 for the offense, which was committed by another, but his participation in such offense was relatively minor, although not so minor as to constitute a defense to prosecution or (5) he could not reasonably have foreseen that his conduct in the course of commission of the offense of which he was convicted would cause, or would create a grave risk of causing, death to another person,
      “(g) If no mitigating factor is present, the court shall impose the sentence of death on the defendant if the jury or, if there is no jury, the court finds by a special verdict as provided in subsection (d) that (1) the defendant committed the offense during the commission or attempted commission of, or during the immediate flight from the commission or attempted commission of, a felony and he had previously been convicted of the same felony; or (2) the defendant committed the offense after having been convicted of two or more state offenses or two nr more federal offenses or of one or more state offenses and one or more federal offenses for each of which a penalty of more than one year imprisonment may be imposed, which offenses were committed on different occasions and which involved the infliction of serious bodily injury upon another person; or (3) the defendant committed the offense and in such commission knowingly created a grave risk of death to another person in addition to the victim of the offense; or (4) the defendant committed the offense in an especially heinous, cruel or depraved manner; or (5) the defendant procured the commission of the offense by payment, or promise of payment, of anything of pecuniary value; or (6) the defendant committed the offense as consideration for the receipt, or in expectation of the receipt, of anything of pecuniary value.”
      We note that the United States Supreme Court’s recent decision in Maynard v. Cartwright, 486 U.S. 356, 108 S. Ct. 1853, 100 L. Ed. 2d 372 (1988), brings into question the constitutionality of General Statutes § 53a-46a (f) (4) (now § 53a-46a [h] [4]). In light of our disposition of this case and our “basic judicial duty to avoid deciding a constitutional issue if a nonconstitutional ground exists that will dispose of the case”; Moore v. McNamara, 201 Conn. 16, 20, 513 A.2d 660 (1986); we do not reach this question in this appeal. See State v. Madera, 198 Conn. 92, 105, 503 A.2d 136 (1985).

       General Statutes (Rev. to 1983) § 53a-54a provides: “murder defined. AFFIRMATIVE DEFENSES. EVIDENCE OF MENTAL CONDITION. CLASSIFICATION. (a) A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception; except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime.
      “(b) Evidence that the defendant suffered from a mental disease, mental defect or other mental abnormality is admissible, in a prosecution under subsection (a), on the question of whether the defendant acted with intent to cause the death of another person.
      “(c) Murder is punishable as a class A felony in accordance with subdivision (2) of section 53a-35a unless it is a capital felony.”

       General Statutes (Rev. to 1983) § 53a-54b (8) provides: “capital felony defined. A person is guilty of a capital felony who is convicted of any of the following ... (8) murder of two or more persons at the same time or in the course of a single transaction.”

       General Statutes (Rev. to 1983) § 53a-71 provides: “sexual assault in the second degree: class c felony: nine months not suspendable. (a) A person is guilty of sexual assault in the second degree when such person engages in sexual intercourse with another person and such other person is (1) under fifteen years of age, or (2) mentally defective, mentally incapacitated or physically helpless, or (3) less than eighteen years old and the actor is such person’s guardian or otherwise responsible for the general supervision of such person’s welfare, or (4) such other person is in custody of law or detained in a hospital or other institution and the actor has supervisory or disciplinary authority over such other person.
      “(b) Sexual assault in the second degree is a class C felony for which nine months of the sentence imposed may not be suspended or reduced by the court.”

       During oral argument the state pointed out a need to clarify our recitation of the facts underlying the procedural history of the penalty phase proceedings. See State v. Daniels, 207 Conn. 374, 381 n.6, 542 A.2d 306 (1988). It was the defendant and not the state that, during pretrial proceedings, moved for the three judge panel to preside over the sentencing hearing.

       General Statutes § 54-56 provides: “All courts having jurisdiction of criminal cases shall at all times have jurisdiction and control over informations and criminal cases pending therein and may, at any time, upon motion by the defendant, dismiss any information and order such defendant discharged if, in the opinion of the court, there is not sufficient evidence or cause to justify the bringing or continuing of such information or the placing of the person accused therein on trial.”

       In dismissing the jury and sentencing the defendant to life imprisonment for capital felony, the trial court remarked: “There is one precedent for this in Connecticut. That is the case of State v. Usry [205 Conn. 298, 533 A.2d 212 (1987)], I believe. Judge Corrigan in that situation had interpreted the failure of the jury to agree on mitigating factors to mean, that in effect, he was to sentence the defendant to life. I accept that. . . .
      “I am now convinced that we have a death penalty in name only. We do not have a viable death penalty statute.
      “I feel that the State had its best shot at this trial; and, with all of that, there was a division of six and six. . . .

        “I am confident now that there is no way anybody is ever going to be sentenced to death based upon the way our death penalty statute is written today.” For further excerpts of the trial court’s remarks, see State v. Daniels, 207 Conn. 374, 400-401, 542 A.2d 306 (1988).

       In light of this resolution, we need not address the state’s evidentiary claim. See State v. Daniels, 207 Conn. 374, 381, 542 A.2d 306 (1988).

       Practice Book § 883 provides in pertinent part: “After the close of the prosecution’s case in chief or at the close of all the evidence, upon motion of the defendant or upon his own motion, the judicial authority shall order the entry of a judgment of acquittal as to any principal offense charged and as to any lesser included offense for which the evidence would not reasonably permit a finding of guilty.”

       The trial court’s articulation reads: “This is a response to the order of the Supreme Court to articulate the reasons for the trial court to have imposed a life sentence, rather than declare a mistrial after the jury was evenly split on the issue of mitigating factors. The Supreme Court concluded that the trial court’s explanations were ambiguous as to (1) whether it was exercising its discretion to impose a life sentence or (2) believed that it was required to do so as a matter of law.
      “The trial court was exercising its discretion to impose a life sentence and did not believe it was required to do so as a matter of law. In fact, the trial court had concern as to whether it was in its discretion to impose a life sentence, rather than declare a mistrial. The court had no doubt that it could declare a mistrial. When a jury is hung, it generally follows that the court mandatorily orders a mistrial. The trial court was determined to resolve the case with finality. This was only the second jury in the penalty phase that was split on the verdict. The other was State v. Usry [205 Conn. 298, 553 A.2d 212 (1987)]. The court merely cited State v. Usry for whatever value that case had as a precedent.
      “The determination by the court to put an end to the Daniels case was based on several considerations.
      “First and foremost, it was the court’s firm conviction that the death penalty statute was unworkable, particularly based on the evidence adduced at the penalty phase of the trial. In the context of the statutory definition of mitigating factors, there was sufficient evidence for jurors to come to a reasonable conclusion that there were one or more mitigating factors. In fact, six jurors did.
      “In addition, a presiding judge at a jury trial does not conduct the trial in an ivory tower. The court was aware that a retrial of the penalty phase would be enormously expensive—and to no avail. The state’s attorney’s office and the public defender’s office spared no expense on the penalty phase hearing, even to the point where the public defender’s office spent money on a lie detector test of the defendant. The court was aware of the fact that family and friends of victims of a serial killer in eastern Connecticut had formed an organization that demanded that state’s attorneys prosecute to the limit in death penalty cases. The court determined that, if it declared a mistrial, the state’s attorney would have to make a choice of retrying the penalty phase (which would have been a quixotic enterprise), or he would be forced to take action to have a life sentence imposed. To have taken the latter action, because of strong feelings generated by the serial killer, he would have been accused of ‘plea bargaining.’ The awareness of these undercurrents prompted the trial court to comment about the death penalty statute, which comments it later characterized as ‘gratuitous remarks.’
      “For the foregoing reasons, the trial court imposed a life sentence.”

       The state argues that General Statutes § 54-56 does not confer upon a trial court the discretionary power to dismiss the penalty phase of a capital felony prosecution and that such an application of the statute would pose constitutional problems. The state, therefore, urges us to set aside the trial court’s judgment and to remand the case for a new penalty phase hearing.


source: Caselaw Access Project

author: Shea, J.

license: Public Domain

text:
    Lois Daddona, Administratrix (Estate of Isabel Keiper) v. Liberty Mobile Home Sales, Inc.
    (13467)
    Peters, C. J., Healey, Shea, Callahan and Covello, Js.

      Argued October 6
    decision released November 29, 1988

      Robert L. Hirtle, Jr., with whom was Richard M. Porter, for the appellant (defendant).

      Edward G. Fitzpatrick, with whom, on the brief, was Peter E. Mariano, for the appellee (plaintiff).

      Joseph I. Lieberman, attorney general, and Stephen R. Park, William M. Rúbenstein and Robert M. hanger, assistant attorneys general, filed a brief for the state as amicus curiae.
   Shea, J.

The plaintiff, Lois Daddona, administratrix of the estate of her mother, Isabel Keiper, owner of a mobile home, brought an action seeking injunctive relief and monetary damages against the defendant, Liberty Mobile Home Sales, Inc., which owns the lot where the home is located. The plaintiff alleged in her amended complaint that the defendant’s continuing refusal to permit an on-site sale of the decedent’s mobile home violates General Statutes § 21-79; that the defendant’s enforcement of the resale standards set by the 1982 supplemental judgment in an action the defendant had brought against the town of Prospect constitutes a violation of General Statutes § 21-79 and the Connecticut Unfair Trade Practices Act (CUTPA); General Statutes § 42-110a et seq.; and that the dismantling of the mobile home by the defendant for off-site storage constitutes a violation of CUTPA.

The trial court rendered judgment for the plaintiff to recover compensatory damages, punitive damages, attorney’s fees, and costs. The trial court also permanently enjoined the defendant from interfering with the on-site sale of the mobile home and from evicting the plaintiff, provided that the plaintiff paid the defendant a reasonable sum for use and occupancy each month after the effective date of its decision. In addition, the trial court rendered judgment for the plaintiff on the defendant’s counterclaim for unpaid rent, on the ground that, by dismantling the mobile home, the defendant had caused the mobile home to become untenantable, thereby excusing the plaintiff from paying rent pursuant to General Statutes § 47a-4a.

On appeal, the defendant claims that the trial court erred in holding that: (1) General Statutes § 21-79 does not take private property without just compensation; (2) an estate is a “resident” as defined by General Statutes § 21-64 (5); (3) General Statutes § 21-79 takes priority over the lease provision incorporating the 1982 supplemental judgment in an action the defendant had brought against the town of Prospect; (4) the plaintiff did not abandon the mobile home; (5) the defendant’s actions constituted violations of CUTPA in three respects; and (6) the defendant was not entitled to recover on its counterclaim for unpaid rent.

At oral argument, the defendant conceded that the first claim is controlled by our holding in Eamiello v. Liberty Mobile Home Sales, Inc., 208 Conn. 620, 546 A.2d 805 (1988), that the right of on-site sale given to a mobile home owner by § 21-79 does not constitute an unconstitutional taking of property. The defendant has also acknowledged that the second claim is controlled by our holding in Thompson v. Merlino Enterprises, Inc., 208 Conn. 656, 545 A.2d 1094 (1988), that an administrator is a “resident” as defined by § 21-64 (5) and thus may exercise the rights of a deceased owner of a mobile home. We find no error on the third and fourth claims. On the fifth claim we conclude that two of the three grounds relied upon in awarding damages for violations of CUTPA are unsound. On the sixth claim, we conclude that the trial court’s finding of fact on which its conclusion was based was clearly erroneous. Accordingly, we remand the case to the trial court with direction to redetermine the issue of damages based upon the remaining ground for finding a CUTPA violation, and to retry the defendant’s counterclaim.

The trial court found the following facts. On December 13, 1972, the decedent, Isabel Keiper, purchased a 1973 Burlington mobile home for $10,800. The mobile home was purchased “on-site” upon a lot in Harmony Acres Mobile Home Park, which the defendant owned, in the town of Prospect. The parties entered into a rental agreement, which was renewed annually until September, 1984, when it expired.

An addendum to the plaintiffs lease was executed on September 23, 1983, incorporating the provisions of a 1982 supplemental judgment from a prior action, Liberty Mobile Home Sales, Inc. v. Prospect, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 106145 (September 23, 1982). That judgment provided that, pursuant to the redesign of the park, twenty-six mobile home lots were to be eliminated from the Harmony Acres Mobile Home Park by September 22,1988. The lot occupied by the plaintiff’s mobile home was among those to be eliminated. The judgment required, however, that a new site within the park be offered to each resident whose lot was being eliminated by the plan of development.

No new lease was executed after September, 1984, because the plaintiff’s decedent, Keiper, was hospitalized and unable to sign. Keiper died on November 11, 1984. The plaintiff, administratrix of the estate, paid rent to the defendant from December 1,1984, to July 1, 1985. In November, 1984, after Keiper’s death, the defendant advised the plaintiff that the home would have to be removed from the park and sold off-site.

The plaintiff’s expert at trial testified that the appraised value of the mobile home in December, 1984, if sold on-site was $28,000. On June 21,1985, the plaintiff sent a letter to the defendant, giving notice of her intention to sell the mobile home and requesting an inspection. The defendant did not respond to this request within twenty days after its receipt as required by General Statutes § 21-79 (e). On December 16,1985, the plaintiff was notified that the defendant’s employees were dismantling the mobile home. Shortly thereafter the defendant offered to buy the mobile home for the original purchase price of $10,800. On January 2, 1986. the defendant’s employees continued to dismantle the mobile home, removing the vinyl skirting, television antenna, awnings, porch gutters, central air conditioning unit, and lines. The defendant did not notify the plaintiff that the mobile home had been dismantled in preparation for off-site storage, did not serve a notice to quit possession of the lot, and never obtained court authority for its action.

The plaintiff obtained a temporary restraining order on January 3,1986, to prevent the defendant from further dismantling the mobile home. On February 28, 1986, the commissioner of consumer protection issued a declaratory ruling concerning the on-site resale of the mobile home owned by Keiper’s estate. This ruling declared that the new owner, whether the estate or the heirs, had the right to sell the home pursuant to General Statutes § 21-79, but that the mobile home was not safe, sanitary, nor in conformance with the park’s aesthetic standards for resale in its dismantled condition.

The plaintiff brought this action, seeking injunctive relief and monetary damages. The defendant raised a number of special defenses, including a claim that the plaintiff had abandoned the mobile home. The defendant also filed a counterclaim to collect the rent allegedly due since August 1, 1985.

In rejecting the defendant’s special defense of abandonment, the trial court found that the plaintiff had continued to visit the home every two weeks to maintain the exterior grounds and the interior until July, 1985, when the defendant refused an on-site sale, and that thereafter, the plaintiff had visited monthly.

The trial court rendered judgment for the plaintiff, rejected the defendant’s special defenses, and found for the plaintiff on the defendant’s counterclaim. This appeal followed.

I

The defendant claims that the trial court erred in holding that General Statutes § 21-79 supersedes the 1982 supplemental judgment in an action the defendant had brought against the town of Prospect; Liberty Mobile Home Sales, Inc. v. Prospect, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 106145 (September 23, 1982); and in concluding that, because the plaintiff was not required to abide by the permit requirements of that judgment, she had resale rights in respect to the mobile home.

In that action, the defendant in this case sought declaratory and injunctive relief against the enforcement of certain Prospect zoning regulations. In a supplemental judgment, the court ordered “[tjhat all owners of mobile homes within the park will be required to obtain a building permit and certificate of occupancy from the Town prior to resale of their mobile homes

This court’s holding in Eamiello v. Liberty Mobile Home Sales, Inc., supra, defeats the defendant’s claim. In Eamiello, we noted that, because the plaintiffs were not parties to the defendant's suit against the town of Prospect and were not notified of the supplemental judgment until after it had been rendered, they were not bound by the judgment under principles of res judicata or collateral estoppel. We held, nevertheless, that “the terms of the judgment bind the plaintiffs to the same extent as the other lease provisions but have no independent force.” Id.

We stated that “§ 21-79 (a) prohibits the operator of a mobile home park from requiring for approval of the on-site resale of a mobile home anything more than that the home be ‘safe, sanitary and in conformance with aesthetic standards.’ Thus, the requirement of the 1982 supplemental judgment referred to in the lease that the plaintiffs ‘obtain a building permit and certificate of occupancy from the town prior to resale,’ like other resale provisions in the lease, is invalid because it imposes a requirement not sanctioned by § 21-79 (a). Although a provision for such a certificate might be a reasonably efficient method of satisfying the safe and sanitary statutory standard, it cannot be made a sine qua non to approval of a resale.” Id., 635.

The facts of the present case are indistinguishable from those in Eamiello v. Liberty Mobile Home Sales, Inc., supra. The record indicates that neither Isabel Keiper nor the plaintiff was a party to the prior action brought by the defendant in this case against the town of Prospect. Accordingly, the lease provision incorporating the 1982 supplemental judgment is similarly invalid, because it imposes a requirement for resale not sanctioned by § 21-79 (a).

The defendant petitioned the department of consumer protection for a declaratory ruling on the validity of the defendant’s resale standards and the constitutionality of § 21-79. In response, the commissioner issued a declaratory ruling that the defendant’s resale standards requiring zoning and building permits and a certificate of occupancy contravened statutory provisions. On appeal, the defendant claims that the commissioner’s ruling had the effect of overruling a decision of the Superior Court. We disagree.

As explained above, the lease provision incorporating the supplemental judgment was superseded by an act of the legislature. The supplemental judgment is still valid as between the original parties, but this plaintiff is not bound by it because she was not a party to the original action. The commissioner, therefore, properly interpreted the supplemental judgment resale standards as contravening § 21-79.

II

The defendant’s next claim is that the trial court erred in failing to find that the plaintiff had abandoned the mobile home, thereby entitling the defendant to dismantle it. The defendant agreed at oral argument that this claim involves an issue of fact.

This court has long held that abandonment implies a voluntary and intentional relinquishment of a known right. Cummings v. Tripp, 204 Conn. 67, 93, 527 A.2d 1230 (1987); Bianco v. Darien, 157 Conn. 548, 556, 254 A.2d 898 (1969). It is not the function of this court to retry facts, however, and therefore, the scope of our review is limited to determining whether the trial court’s factual finding was clearly erroneous in light of the evidence and the pleadings on the record as a whole. Commission on Hospitals & Health Care v. Stamford Hospial, 208 Conn. 663, 674-75, 546 A.2d 257 (1988); Mallory v. Mallory, 207 Conn. 48, 55, 539 A.2d 995 (1988).

Our limited review of a challenge to the trier’s factual findings, however, presupposes that the party claiming error has complied with the relevant rules of practice. Practice Book § 4061 states that “[i]t is the responsibility of the appellant to provide an adequate record for review.” Accordingly, when a party challenges a factual finding as clearly erroneous, that party must file the relevant evidence that exists in the case, such as the transcript or exhibits, to enable the appellate court to consider the issue. See Perrotti v. Massa, 183 Conn. 16, 17, 438 A.2d 806 (1981). The defendant should have filed, for example, the transcript pertaining to the trial court’s finding that the plaintiff made regular visits to the mobile home to inspect it. Because the defendant has failed to provide this court with an adequate record for review, there is no basis for reversing or modifying the trial court’s decision on this factual issue. Id.

The defendant raises two additional arguments that it claims require a finding of abandonment as a matter of law.

First, the defendant claims that, when the plaintiff stopped paying rent in July, 1985, abandonment occurred. This court has held, however, that nonpayment of rent does not terminate a tenancy, but gives the landlord the option to terminate the lease by some unequivocal act clearly showing the exercise of that option. Mayron’s Bake Shops, Inc. v. Arrow Stores, Inc., 149 Conn. 149, 156, 176 A.2d 574 (1961); Chapel-High Corporation v. Cavallero, 141 Conn. 407, 411, 106 A.2d 720 (1954).

Second, the defendant claims that there also was an abandonment because the mobile home was not occupied for approximately one year. In Cummings v. Tripp, supra, however, this court held that the mere discontinuance of a use, where there is no intent to abandon, is not enough to establish abandonment. Further, in Thompson v. Merlino Enterprises, Inc., supra, 661, we held that “[t]he owner of a mobile home, such as the administrator of an estate, need not actually reside in the park to qualify as a resident under § 21-79.” These authorities clearly indicate that nonuse alone does not require a conclusion of abandonment.

Ill

The defendant claims that the trial court erred in finding that the defendant’s actions violated CUTPA. The trial court found that the defendant’s actions constituted unfair or deceptive practices in three respects: (1) the defendant continuously refused to allow the plaintiff to resell “on-site” a safe, sanitary, and aesthetically conforming mobile home, in violation of General Statutes § 21-79; (2) the defendant dismantled the plaintiffs mobile home, thereby offending the public policy embodied in General Statutes § 21-80 which makes summary process available for evicting a mobile home resident; and (3) after dismantling the mobile home, the defendant offered to purchase the plaintiff’s mobile home “as is,” for the original purchase price of $10,800 when it had been appraised at $28,000 on December 5, 1984.

A

In determining whether a practice violates CUTPA, we use the following criteria: “ ‘ “(1) [W]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise—whether, in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers [(competitors or other businessmen)].” Conaway v. Prestia, [191 Conn. 484, 492-93, 464 A.2d 847 (1983)], quoting FTC v. Sperry & Hutchinson Co., 405 U.S. 233, 244-45 n.8, 92 S. Ct. 898, 31 L. Ed. 2d 170 (1972)....' McLaughlin Ford, Inc. v. Ford Motor Co., 192 Conn. 558, 568, 473 A.2d 1185 (1984); see also Sportsmen’s Boating Corporation v. Hensley, 192 Conn. 747, 756, 474 A.2d 780 (1984). Thus, a violation of CUTPA may be established by showing either an actual deceptive practice; see, e.g., Sprayfoam, Inc. v. Durant’s Rental Centers, Inc., 39 Conn. Sup. 78, 468 A.2d 951 (1983); or a practice amounting to a violation of public policy.” Web Press Services Corporation v. New London Motors, Inc., 203 Conn. 342, 355, 525 A.2d 57 (1987).

In Eamiello, this same defendant contended that § 21-79 was unconstitutional both as written and applied. Although we rejected that claim, we noted that the defendant’s reliance on Hall v. Santa Barbara, 833 F.2d 1270 (9th Cir. 1986), reh. denied, 833 F.2d 1282 (9th Cir. 1987), cert. denied, 485 U.S. 940, 108 S. Ct. 1120, 99 L. Ed. 2d 281 (1988), lent some support for its claim that § 21-79 was unconstitutional. We held that “[although the subjective good faith of one who has in fact performed an unfair or deceptive act is not a defense to a CUTPA violation, there is nothing unfair or deceptive in a reasonably grounded constitutional challenge of a statute.” Eamiello v. Liberty Mobile Home Sales, Inc., supra, 654.

The defendant has made the same constitutional claim in this case, and this claim was briefed and filed before this court released its opinion in Eamiello. We conclude, therefore, that under the circumstances of this case, the first ground relied upon by the trial court for finding a CUTPA violation is not sound, and is therefore vacated.

B

The third ground relied upon by the trial court was that the defendant offered $10,800 for the plaintiff’s mobile home, when it was worth $28,000. This offer was not accepted by the plaintiff. We have held that § 21-79 serves the substantial public purpose of protecting the economic interests of mobile home tenants in selling their homes on-site. Id., 648. Section 21-79 protects tenants from being forced to sell their homes to park owners at a substantial loss by restricting the circumstances under which a park owner may reject a prospective buyer, and as a consequence, benefits many low income people who cannot afford to purchase more expensive housing. Id. This legislation, however, does not under any circumstances impose an obligation upon park owners to offer to purchase a tenant’s mobile home for the current appraised value or for any other price. Accordingly, it can hardly be considered “unfair” for the defendant to have made its offer, when it was under no obligation to do so, and the plaintiff was under no obligation to accept such an offer.

This court has long held that an offer imposes no obligation upon either party, until it is accepted by the offeree, according to the terms in which the offer was made. Ocean Ins. Co. v. Carrington, 3 Conn. 357, 362-63 (1820); cf. Randolph Construction Co. v. Kings East Corporation, 165 Conn. 269, 276, 334 A.2d 464 (1973). Our holdings adhere to the basic principle of contract law that an offeror is the master of his offer, and therefore, is not obligated to make an offer on any terms except his own. See E. Farnsworth, Contracts (1982) § 3.13. We conclude that § 21-79 was not intended to alter this common law principle.

The plaintiff maintains that the defendant’s offer nonetheless constituted an unfair practice because of the disparate economic strengths of a park owner and a tenant. As we stated above, however, the defendant was under no obligation to offer to buy the plaintiff’s mobile home. The fact that the defendant may have had superior financial resources, therefore, does not render “unfair” the offer that the defendant actually made. See Fairfield Lease Corporation v. Romano’s Auto Service, 4 Conn. App. 495, 498-99, 495 A.2d 286 (1985) (“[sjuperior bargaining power in itself is not enough to strike down a resultant contract as unconscionable”). We conclude that the plaintiff could not have been damaged by the defendant’s offer, and therefore, we vacate the trial court’s finding of a CUTPA violation based upon this ground.

C

The trial court found further that the defendant violated CUTPA when it dismantled the plaintiffs mobile home, rather than evict her pursuant to the summary-process procedures set forth in General Statutes § 21-80. We agree with this conclusion.

By enactments dating back to colonial times, our legislature has proscribed the use of self-help remedies in obtaining possession of demised premises. Orentlicherman v. Matarese, 99 Conn. 122, 125-26, 121 A. 275 (1923). A colonial enactment from 1722, for example, established fines and a cause of action to remedy “any Force-able Entry made into any lands, tenements or other Possessions ... or of any wrongful detainer of any lands, tenements, or other possessions, with force and strong hand.” 6 Colonial Records of Connecticut 1717-1725, p. 343; see also General Statutes § 47a-43 (“Complaint and procedure: Forcible entry and detainer”). These legislative enactments were designed to “protect . . . peaceable possession . . . from disturbance by any but lawful and orderly means”; Orentlicherman v. Matarese, supra, 126; and to protect the “peace of the neighborhood.” (Emphasis omitted.) Dutton v. Tracy, 4 Conn. 79, 86 (1821).

As we stated above, CUTPA was designed to protect the public from unfair practices, and whether a practice is unfair depends upon the finding of a violation of an identifiable public policy. Certainly, therefore, a violation of CUTPA can be found in the case at hand, where the defendant’s actions violate the public policy found in two subdivisions of General Statutes § 47a-43 (a). Subdivisions (3) and (4) of § 47a-43 (a) establish causes of action “[w]hen any . . . person enters into any land, tenement or dwelling unit and causes damage to the premises or damage to or removal of or detention of the personal property of the possessor” or “when the party put out of possession would be required to cause damage to the premises or commit a breach of the peace in order to regain possession •n

These provisions of § 47a-43 uphold the long-standing public policy against proceeding by way of self-help remedies when evicting a tenant, especially when a landlord has available the summary process procedures found in chapter 832 of the General Statutes. This public policy dictates that landlords proceed against mobile home owners according to those statutes put in place to enable them to enforce their legal rights. By dismantling the plaintiffs mobile home, and disregarding the mandatory procedures set forth in § 21-80, therefore, the defendant violated the long-standing public policy found in § 47a-43 of protecting a “peaceable possession . . . from disturbance by any but lawful and orderly means.” Orentlicherman v. Matarese, supra, 126.

The defendant claims that it was nonetheless entitled to dismantle the plaintiffs mobile home, because it believed in good faith that the plaintiff was not a resident, and therefore, there was no ascertainable person against whom the defendant could have brought a summary process action. We disagree with the defendant’s contention for two reasons. First, as we held in Eamiello v. Liberty Mobile Home Sales, Inc., supra, 654, “the subjective good faith of one who has in fact performed an unfair or deceptive act is not a defense to a CUTPA violation . . . .” Second, the facts of this case undercut the defendant’s claim that it knew of no one against whom it could have brought a summary process action. The record indicates that, after her mother’s death, the plaintiff paid the rent from December 1, 1984, to July 1, 1985, sought approval of a resale, and continued to visit the premises during the period involved. These are all manifestations of the plaintiff’s claim to possession of the mobile home and the premises upon which it sat. Accordingly, we conclude that the trial court properly found that the defendant’s actions in dismantling the mobile home violated CUTPA.

In view of the fact that the trial court’s award of $5000 in punitive damages was based on three grounds, two of which we find to be inadequate, we remand for a further hearing on the award of punitive damages and attorney’s fees, both of which were based on the CUTPA violations.

IV

The defendant’s final claim is that the trial court erred in denying the defendant recovery on its counterclaim for unpaid rent allegedly due from August 1, 1985, to December 26,1985. The trial court ruled that the defendant could not recover on its counterclaim, because the defendant had rendered the plaintiff’s home untenantable by dismantling it.

The defendant claims that no evidence was introduced at trial that the mobile home was untenantable prior to December, 1985, when the defendant began dismantling the mobile home. The plaintiff does not dispute this claim, but asserts instead that the trial court’s decision can be sustained on the basis of the defendant’s failure to approve the condition of the mobile home for resale.

We conclude that the trial court’s finding was erroneous, and therefore, we vacate the trial court’s ruling on the counterclaim to the extent that it pertains to the period before the dismantling of the mobile home. In view of the fact that the trial court made no finding as to whether the defendant’s refusal to approve the proposed sale caused the plaintiff any damage, however, the plaintiff should be given the opportunity on remand to prove that the defendant’s interference with that right caused her damage, and therefore, that she should not have to pay rent for the period in question.

There is error in part, and the judgment is affirmed, except as to the amount of punitive damages and attorney’s fees awarded for the CUTPA violations found, and except as to the liability of the plaintiff under the counterclaim for rent prior to the dismantling of the mobile home. With respect to both of these matters, the case is remanded to the trial court for further proceedings in accordance with this opinion.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 21-79. owner prohibited from restricting resident’s right to sell, (a) No owner or operator of a mobile manufactured home park shall require a resident who owns a mobile manufactured home which is safe, sanitary and in conformance with aesthetic standards to remove the home from the development at the time such mobile manufactured home is sold or a mortgage on such a home is foreclosed provided that the purchaser or foreclosing mortgagee shall assume and be bound by the rental agreement of the foreclosed mortgagor and shall be bound by the rules and regulations of the park.
      “(b) A mobile manufactured home shall be presumed to be safe and sanitary if it is established that the mobile manufactured home was constructed in accordance with any nationally recognized building or construction code or standard. Failure to meet any such standard or the provisions of any such code shall not automatically raise a presumption that the mobile manufactured home is unsafe or unsanitary. Such failure shall not be used as a reason for withholding approval of an on-site sale unless such failure renders the mobile manufactured home unsafe or unsanitary.
      “(c) The owner of a mobile manufactured home park shall bear the burden of showing that a mobile manufactured home is unsafe, unsanitary, or fails to meet the aesthetic standards of the development. No aesthetic standard concerning those physical characteristics such as size, original color or original building materials, which cannot be changed without undue financial hardship to the resident, shall be applied against a mobile home.
      “(d) Any purchaser of a mobile manufactured home sold by a resident may become a resident of the mobile manufactured home park provided he meets the entry requirements for said park and such requirements are equally applied by the owner to all purchasers and prospective residents and the owner approves such entry. Such approval may not be withheld except for good cause. For the purposes of this section good cause means a reasonable cause for the owner to believe (1) that such purchaser intends to utilize the purchased mobile manufactured home for an illegal or immoral purpose or for any purpose that would disturb the quiet enjoyment of the other residents of the park or (2) that the purchaser is or will be financially unable to pay the rent for the space or lot upon which the purchased mobile manufactured home is located. If the owner denies approval to a purchaser, he shall, in writing, state any reason for such disapproval. Such statement shall be delivered to the resident and the purchaser or prospective resident within ten days after the owner receives the completed application of the purchaser or prospective resident. Failure to deliver such notification within ten days shall be deemed to be approval.
      “(e) Any resident wishing to sell his or her home shall request a written statement of the owner’s intentions regarding the condition of the home. Within twenty days after receipt of such a request, the owner shall approve the home’s condition for resale or deliver a written statement to the resident specifying the reasons why the home is not safe, sanitary, or in conformance with aesthetic standards. Failure of the owner to respond within twenty days shall be deemed to be an approval of the home’s condition for resale. If the resident disputes the owner’s response, he may seek a declaratory ruling from the department of consumer protection. The resident may attempt to correct defects identified by the owner and may again request the owner’s approval of the home’s condition for resale. If the resident again disputes the owner’s response, he may once again seek a declaratory ruling from the department. An owner’s statement of approval shall remain in force for not more than six months. No owner shall exact a commission or fee with respect to the price realized by the seller, unless he has acted as agent for the seller in a sale pursuant to a written contract, or charge a rent for the mobile manufactured home space or lot upon which the purchased mobile manufactured home is located greater than the prevailing rent for any other space or lot located in the park.”

       General Statutes § 21-64 (5) provides: “ ‘Resident’ means a person who owns, or rents and occupies, a mobile manufactured home in a mobile manufactured home park.”

       On appeal, the defendant makes no claim that General Statutes § 21-79 infringes upon the liberty of contract. Cf. Eamiello v. Liberty Mobile Home Sales, Inc., 208 Conn. 620, 625 n.5, 546 A.2d 805 (1988) (defendant’s claim that General Statutes § 21-79 [a] infringes upon liberty of contract considered abandoned).

       During oral argument, the date on which the plaintiff had been appointed administratrix was the subject of a dispute between the parties. The plaintiff claimed to have been appointed in June, 1985, while the defendant maintained that she had not been appointed until November, 1985. It is unnecessary to resolve this issue, because it is clear that at the time that the defendant began dismantling the mobile home, the plaintiff had been appointed administratrix, and the defendant could have proceeded against her in a summary process action.

       On appeal, the defendant claims that it is entitled to unpaid rent for the period of July 1, 1985, to December 26, 1985. In its counterclaim as pleaded in the trial court, however, the defendant claimed rent only from August 1,1985. The counterclaim was never amended. Therefore, we shall limit our consideration of this claim of error to the starting date specified in the defendant’s counterclaim.


author: Callahan, J.

text:
    Jon S. Kerin v. Frank J. Stangle, Administrator (Estate of Charles H. Miller)
    (13364)
    Peters, C. J., Healey, Callahan, Glass and Ment, Js.

      Argued October 12
    decision released November 29, 1988

      PaulB. Zolan, with whom was Catherine A. Marrion, for the appellant (plaintiff).

      Charles L. Howard, with whom was Richard R. Steinmetz, for the appellee (defendant).
   Callahan, J.

This is the appeal of an action wherein the plaintiff, Jon S. Kerin, claimed that he was entitled to a decree against Frank J. Stangle, the administrator of the estate of Charles H. Miller, ordering specific performance of an agreement to sell certain of Miller’s real estate located in the town of Bloomfield. The matter was tried to the court, Goldberg, J., which rejected the plaintiffs arguments and refused to order specific performance or grant the plaintiff other equitable relief. We find no error.

The real estate holdings of Charles H. Miller have had a tortuous history of litigation involving not only the property concerned in this action but other properties as well. The facts gleaned from the record, however, that are pertinent to a resolution of this appeal, although unusual, are not particularly complex.

On November 8,1979, the plaintiff entered into a contract with Harry H. Kleinman, the duly appointed conservator of the estate of Charles H. Miller, an incapable person. The contract called for the plaintiff to purchase for $62,000, certain land, belonging to Miller, located off Old Windsor Road in the town of Bloomfield. The contract contained a provision that the seller was not obligated thereunder until ten days after the requisite probate approval became final and the probate approval was no longer subject to further proceedings. On November 21,1979, the Probate Court for the district of Hartford approved the sale to the plaintiff for the agreed amount. Subsequently, Beverly Marshall, Miller’s daughter, and Tillie Miller, his wife, appealed the order of the Hartford Probate Court to the Superior Court. On February 6,1980, after a trial de novo, the Superior Court, Kelly, J., determined that it was in the best interest of the incapable’s estate to sell the property in question for $62,000, and approved the sale at that price. The Superior Court, however, modified the Probate Court decree by ordering that Marshall or her designee have until February 29,1980, to purchase the property at the approved figure. Marshall appealed the Superior Court judgment to this court.

On January 19, 1982, in Marshall v. Kleinman, 186 Conn. 67, 72, 438 A.2d 1199 (1982), we held that the evidence presented at the trial de novo in the Superior Court did not reasonably support the “low valuation” accepted and approved by the Superior Court. Consequently, we set aside the judgment of the Superior Court and ordered a new trial. Id., 73. On February 4,1982, Charles H. Miller died. On September 28, 1982, Frank J. Stangle, the named defendant in this action, was appointed administrator c.t.a., d.b.n. of his estate by the Probate Court for the district of Hartford. On February 15,1983, Marshall and Tillie Miller withdrew the case remanded by this court without a new trial having been held.

On the basis of those facts the plaintiff postulates that the Superior Court judgment that modified the probate decree was “erased” but the probate decree was not. He reasons, therefore, that the original decree of the Probate Court, approving the sale of Miller’s property to him for $62,000, remains in full force and effect. He contends that this decree establishes the necessary probate approval that makes the agreement with Miller’s conservator a binding contract that inures to his benefit against the administrator of Miller’s estate. He claims, therefore, that he is entitled to specific performance of the contract with Miller’s conservator against Miller’s administrator. We disagree.

An appeal from a Probate Court to the Superior Court is not an ordinary civil action. Slattery v. Woodin, 90 Conn. 48, 50-51, 96 A. 178 (1915); Silverstein’s Appeal from Probate, 13 Conn. App. 45, 52-53, 534 A.2d 1223 (1987). When entertaining an appeal from an order or decree of a Probate Court, the Superior Court takes the place of and sits as the court of probate. Satti v. Rago, 186 Conn. 360, 365, 441 A.2d 615 (1982); Stevens’ Appeal, 157 Conn. 576, 581, 255 A.2d 632 (1969); Dunham v. Dunham, 97 Conn. 440, 443, 117 A. 504 (1922); Slattery v. Woodin, supra, 51; Wilson v. Warner, 84 Conn. 560, 564, 80 A. 718 (1911); Hewitt’s Appeal from Probate, 53 Conn. 24, 35, 1 A. 815 (1885); Davis’s Appeal from Probate, 39 Conn. 395, 400 (1872). In ruling on a probate appeal, the Superior Court exercises the powers, not of a constitutional court of general or common law jurisdiction, but of a Probate Court. Slattery v. Woodin, supra; Tolles’s Appeal from Commissioners, 54 Conn. 521, 524, 9 A. 403 (1886); Silverstein’s Appeal from Probate, supra, 53.

The function of the Superior Court in appeals from a Probate Court is to take jurisdiction of the order or decree appealed from and to try that issue de novo. Baskin’s Appeal from Probate, 194 Conn. 635, 641, 484 A.2d 934 (1984); Satti v. Rago, supra, 364-65; Stevens’ Appeal, supra, 580-81; Hotchkiss’ Appeal, 89 Conn. 420, 432, 95 A. 26 (1915); Silverstein’s Appeal from Probate, supra, 54. Thereafter, upon “consideration of all evidence presented on the appeal which would have been admissible in the probate court, the superior court should exercise the same power of judgment which the probate court possessed and decide the appeal as an original proposition unfettered by, and ignoring, the result reached in the probate court.” Prince v. Sheffield, 158 Conn. 286, 298, 259 A.2d 621 (1969).

Despite these accepted principles concerning the role of the Superior Court vis-a-vis a probate appeal, the plaintiff would have us afford a probate decree some continued vitality after the entry of a judgment in the Superior Court. He opts for a result which would leave the original probate decree standing in the wings in the event that something goes awry with the Superior Court judgment. We believe that in espousing that position the plaintiff misreads the cases dealing with probate appeals.

It is true that the mere taking of an appeal from a probate decree does not in and of itself vacate or suspend the decree. Silverstone v. Lillie, 141 Conn. 104, 107, 103 A.2d 915 (1954); White v. Strong, 75 Conn. 308, 312, 53 A. 654 (1902). As noted in Livingston’s Appeal from Probate, 63 Conn. 68, 75, 26 A. 470 (1893), “[i]f the appeal had been withdrawn or dismissed in the Superior Court . . . the [probate] decree would have remained valid . . . .” See also Silverstone v. Lillie, supra, 107; Merrells v. Phelps, 34 Conn. 109, 112 (1867). That is, the probate decree appealed from continues “in full force” until the appellate tribunal otherwise determines. Pettee v. Hartford-Connecticut Trust Co., 105 Conn. 595, 603, 136 A. 111 (1927); Dickinson’s Appeal from Probate, 54 Conn. 224, 231, 6 A. 422 (1886). But once the appellate tribunal, i.e., the Superior Court, otherwise determines and either modifies or sets aside the decree of the Probate Court, the probate decree is superseded. Satti v. Rago, supra, 365; Stevens’ Appeal, supra, 581; Hirsch v. Braceland, 144 Conn. 464, 469, 133 A.2d 898 (1957); Silverstone v. Lillie, supra; Avery’s Appeal, 117 Conn. 201, 205, 167 A. 544 (1933); White v. Strong, supra.

Sans a withdrawal or a dismissal, we think logic requires that conclusion. We hold, therefore, that once a probate appeal is heard and a judgment rendered in the Superior Court, the Superior Court judgment supplants the probate decree or order. Otherwise, there would arise the incongruous situation of the simultaneous existence of two valid judgments on the same issue, emanating from, what is in effect, the same court exercising the same powers, with one of the judgments held in reserve awaiting developments on the other. We refuse to countenance such a result. The finding of error and the remand by this court in Marshall v. Kleinman, supra, and the subsequent withdrawal of that action prior to a new trial in the Superior Court did not reinstate the decree of the Hartford Probate Court authorizing the sale of Miller’s land to the defendant.

The reversal of the Superior Court in that case did, however, vitiate the judgment of the Superior Court from which Marshall appealed. “Where this court finds error upon the appeal and remands the case to be proceeded with according to law, the efficacy of the judgment rendered upon the original trial is destroyed and a new trial of all the issues in the case is required.” (Emphasis added.) Wendland v. Ridgefield Construction Services, Inc., 190 Conn. 791, 796-97, 462 A.2d 1043 (1983); see also O’Donnell v. Police Commission, 4 Conn. App. 196, 197-98, 493 A.2d 270 (1985).

Unfortunately, however, shortly after the publication of our opinion in Marshall v. Kleinman, supra, and before a new trial could be conducted, the incapable, Miller, departed this vale of tears. Miller’s death left his conservator, against whom the remanded appeal was pending, without a ward. That unique state of affairs rendered the remanded probate appeal moot. That conclusion is inevitable since Miller’s death terminated the conservatorship; General Statutes § 45-77; Kleinman v. Marshall, 192 Conn. 479, 483, 472 A.2d 772 (1984); and title to the real estate in question passed to Miller’s heirs. There was, therefore, no conservator against whom the appeal could proceed and no real estate for the conservator to sell even if the appeal could somehow have continued.

The upshot of the events that have transpired since the plaintiff first negotiated a contract with Miller’s conservator is that there exists no probate approval for the sale of the real estate to him by the conservator. Nor is it possible at this time to obtain such an approval. Since probate approval is an express precondition of a binding obligation, the trial court did not err in denying the plaintiff’s request for specific performance or other equitable relief.

There is no error.

In this opinion the other justices concurred.

       See Kleinman v. Marshall, 192 Conn. 479, 472 A.2d 772 (1984); Marshall v. Kleinman, 186 Conn. 67, 438 A.2d 1199 (1982); Marshall v. Kleinman, 186 Conn. 63, 438 A.2d 1196 (1982).

       The facts were stipulated. Only those germane to this ease are recited.

       Kleinman died on November 29,1981. Harold F. Keith was appointed successor conservator on January 12, 1982.

       The basis of the appeal was that the sale price was inadequate.

       The plaintiff, Jon S. Kerin, who, on motion, had been made a party defendant to that action on June 21,1982, did not object to the withdrawal.

       “[General Statute (Rev. to 1981)] Sec. 45-77. termination of conservatorship. If the court of probate having jurisdiction finds a ward to be capable of caring for himself or herself, the court shall, upon hearing and after notice, order that the conservatorship of the person be terminated. If the court finds upon hearing and after notice which the court prescribes, that a ward is capable of managing his or her own affairs, the court shall order that the conservatorship of the estate be terminated and that the remaining portion of his or her property be restored to the ward. If any ward having a conservator dies, his or her property other than property which has accrued from the sale of his or her real property shall be delivered to his or her executor or administrator. The unexpended proceeds of his or her real property sold as aforesaid shall go into the hands of the executor or administrator, to be distributed as such real property would have been. In either case the conservator shall file in the court his or her final account.”

       “Title to real property passes upon death to the heirs of the owner subject to the right of administration.” Satti v. Rago, 186 Conn. 360, 365, 441 A.2d 615 (1982).

       It is also a statutory prerequisite. General Statutes § 45-238; Elmendorf v. Poprocki, 155 Conn. 115, 119, 230 A.2d 1 (1967).


author: Covello, J.

text:
    Wayne Thomas et al. v. Town of Lisbon et al.
    (13421)
    Peters, C. J., Healey, Shea, Glass and Covello, Js.
    Argued October 13
    decision released December 6, 1988

      Frank A. May, with whom, on the brief, was Maria Yocono, for the appellants (named defendant et al.).

      Richard Bartlett, with whom was Marc Mandell, for the appellee (defendant City of Norwich).
   Covello, J.

This is an appeal from a decision of the compensation review division affirming an order by the workers’ compensation commissioner requiring the town of Lisbon to pay workers’ compensation benefits to two Lisbon volunteer fire fighters. The town of Lisbon and its carrier, Peerless Insurance Company, appealed the compensation review division’s decision to the Appellate Court. On April 22,1988, the Supreme Court transferred the case to itself pursuant to Practice Book § 4023.

The sole issue presented in this appeal is which of two statutes involving compensation benefits for volunteer fire fighters applies to the facts of this case. The parties agree that if General Statutes § 7-314a is controlling, then the city of Norwich is responsible for the payments in issue, and if General Statutes § 7-322a is controlling, the town of Lisbon is responsible. We conclude that § 7-314a is controlling under the facts of this case and find the city of Norwich liable.

The operative facts are not in dispute. The claimants, Wayne Thomas and William Atterbury, were members of the Lisbon volunteer fire department. That department entered into a mutual aid agreement with the Norwich fire department whereby Lisbon fire fighters would come to the aid of the Norwich fire department in an emergency and Norwich fire fighters would reciprocate in Lisbon when needed. On June 25,1983, a fire occurred in the Taftville section of Norwich. Because the town of Lisbon had pumping equipment specially suited to fight the fire, Taftville fire officials, using a citizens band radio, requested the aid of Lisbon volunteer fire fighters. The claimants arrived at the scene together. Atterbury spoke with the chief of the Lisbon fire department. The chief told Atterbury to proceed to a nearby fire hydrant to prepare for refilling the Lisbon tanker trucks as they became empty. On the way to the hydrant, the claimants were injured in a motor vehicle accident.

Both parties agree that the claimants were injured and both agree that the claimants are entitled to workers’ compensation benefits. The parties disagree, however, as to which town is liable for the payment of that compensation.

The appellee, the city of Norwich, argues that § 7-322a mandates that the appellant, the town of Lisbon, pay the required workers’ compensation benefits. We disagree. Section 7-322a provides: “Any active member of a volunteer fire company who offers his services to an officer or person in charge of another fire company which is actively engaged in fire duties, and whose services are accepted by such officer or person, shall be entitled to receive all benefits payable under the provisions of sections 7-314 and 7-314a. Such payments shall be made by the municipality in which the fire company of which such a fireman is a member is located.” This provision contemplates a situation where an individual fire fighter offers his or her personal services to another fire department, which thereafter accepts the offer of services. The legislative history of the act demonstrates this to be the case. It is a tenet of statutory construction that we may refer to the legislative history of an act to determine the purpose for its enactment; Flanagan Ambulance Service, Inc. v. Public Utilities Commission, 161 Conn. 215, 217, 286 A.2d 315 (1971); Biz v. Liquor Control Commission, 133 Conn. 556, 559, 53 A.2d 655 (1947); and, in this case, to ascertain the applicability of § 7-322a to this particular instance. The legislative history reveals that this provision “cover[s] the situation where a volunteer fireman comes upon a conflagration outside his town and offers his services.” 11 H.R. Proc., Pt. 6, 1965 Sess., p. 2723. Furthermore, Senator Louis I. Gladstone noted that this provision covers any volunteer fire fighter “who renders service to a fire company; and whose services are accepted [by] the officer in charge . . . 11 S. Proc., Pt. 5, 1965 Sess., pp. 1678-79.

General Statutes § 7-322a, as contemplated by the legislature, is inapplicable in this situation. Atterbury spoke only to the chief of the Lisbon fire department and never offered his services to anyone from the Norwich fire department. Furthermore, Thomas never offered his services to anyone. Since neither man spoke with anyone from Norwich their services were, obviously, never accepted by Norwich, as required by the statute. Absent the specific factual circumstance articulated in § 7-322a, we agree with the town of Lisbon that § 7-314a is controlling and, therefore, the city of Norwich is responsible for the compensation payments in issue.

Section § 7-314a provides in relevant part: “(a) Active members of volunteer fire departments shall be construed to be employees of the municipality for the benefit of which volunteer fire services are rendered . . . .” This statute allows volunteer fire fighters to receive workers’ compensation benefits as if they were employees of the municipality that benefited from their services. While it is arguable that the injured fire fighters benefitted the town of Lisbon by serving as volunteer fire fighters of that town and working in a mutual aid exchange with another town, it is evident that the volunteer fire services in this instance were rendered for the benefit of Norwich. Furthermore, whereas § 7-322a speaks to individuals, § 7-314a speaks to the conduct of towns. That is exactly the situation before us. The town of Lisbon’s fire department responded to Norwich’s call for help, it was not just the individual claimants who responded. Therefore, § 7-314a is applicable and the city of Norwich is liable for the compensation benefits due the claimants.

There is error, the judgment is set aside and the case remanded with direction to render judgment that the city of Norwich is liable for the claimants’ workers’ compensation benefits.

In this opinion the other justices concurred.

       The respondents, the town of Lisbon and Peerless Insurance Company, have been paying benefits to the claimants at the request of the workers’ compensation commissioner of the second district. These payments have been made under protest.

       General Statutes § 7-314a provides: “death, disability and injury benefits, presumption, (a) Active members of volunteer fire departments shall be construed to be employees of the municipality for the benefit of which volunteer fire services are rendered while in training or engaged in volunteer fire duty and shall be subject to the jurisdiction of the workers’ compensation commission and shall be compensated in accordance with the provisions of chapter 568 for death, disability or injury incurred while in training for or engaged in volunteer fire duty.
      “(b) For the purpose of this section, the average weekly wage of a volunteer fireman shall be construed to be the average production wage in the state as determined by the labor commissioner under the provisions of section 31-309.
      “(c) For the purpose of this section, there shall be no prorating of compensation benefits because of other employment by a volunteer fireman.
      “(d) For the purpose of adjudication of claims for the payment of benefits under the provisions of chapter 568, any condition of impairment of health occurring to an active member of a volunteer fire department while such member is in training for or engaged in volunteer fire duty, caused by hypertension or heart disease resulting in death or temporary or permanent total or partial disability, shall be presumed to have been suffered in the line of duty and within the scope of his employment, provided such member had previously successfully passed a physical examination by a licensed physician appointed by such department which examination failed to reveal any evidence of such condition.”

       General Statutes § 7-322a provides: “benefits for volunteers rendering service to another fire company. Any active member of a volunteer fire company who offers his services to an officer or person in charge of another fire company which is actively engaged in fire duties, and whose services are accepted by such officer or person, shall be entitled to receive all benefits payable under the provisions of sections 7-314 and 7-314a. Such payments shall be made by the municipality in which the fire company of which such a fireman is a member is located.”

       Howard Reynolds, one of the drafters of the statute and the legislative chairperson for the Connecticut Fire Chiefs Association, explained: “Speaking first on H.B. 3178, which is a companion bill of S.B. 822—this provides protection for volunteer firemen who offer their services to a municipality. It has been mentioned here before, the volunteers being the dedicated people that they are, if they happen to be traveling in another town during the day . . . where a major fire is in progress, they are quite apt to want to get involved in the way of helping out the local department. At present time, if they were to be injured while they were doing this, we could not extend any insurance coverage to them, and the purpose of this bill is to correct that situation. We have been very careful in the wording of this bill, as you will notice, wherein we say that ‘the man must offer his services to the officer or person in charge of a fire company actively engaged in fire duty at the time, and his services are accepted by the said officer in charge.’ ” Conn. Joint Standing Committee Hearings, General Law, Pt. 1, 1965 Sess., p. 159.