source: Caselaw Access Project

author: Callahan, J.

license: Public Domain

text:
    State of Connecticut v. Jorge Jimenez
    (14737)
    Peters, C. J., Callahan, Berdon, Katz and Palmer, Js.
    Argued October 28, 1993—
    decision released January 18, 1994

      Joseph G. Bruckmann, public defender, for the appellant (defendant).

      Frederick W. Fawcett, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Gerard P. Eisenman, assistant state’s attorney, for the appellee (state).
   Callahan, J.

The defendant, Jorge Jimenez, was convicted by a jury of one count of assault in the first degree in violation of General Statutes § 53a-59 (a) (l). He was sentenced by the trial court to a term of imprisonment of twelve years. He appealed his conviction to the Appellate Court claiming that the trial court had “improperly instructed the jury as to the ‘initial aggressor’ exception to the law of self-defense in light of the evidentiary basis for the claim of self-defense he raised.” State v. Jimenez, 30 Conn. App. 406, 407, 620 A.2d 817 (1993). The Appellate Court concluded that, in light of the trial court’s charge as a whole, it was not reasonably possible that the jury had been misled by the portion of the charge to which the defendant objected. Consequently, that court affirmed his conviction. Id., 415. We granted certification to review the merits of this conclusion. State v. Jimenez, 225 Conn. 916, 623 A.2d 1026 (1993).

The evidence that led to the defendant’s conviction is set forth in the opinion of the Appellate Court; State v. Jimenez, supra, 30 Conn. App. 407-409; and need not be repeated at length. For the purposes of this appeal, it is sufficient to note that the defendant and the victim, Thomas Comacho, lived in separate apartments in the same building at 596 Pembroke Street in Bridgeport. There was bad blood between the defendant and both the victim and the victim’s brother, Israel Comacho. On August 18, 1984, while the victim, who lived on the third floor of the Pembroke Street building, was in the hallway outside the defendant’s second floor apartment, the defendant emerged from his apartment and shot the victim in the left leg with a sawed-off shotgun, causing a serious wound. The defendant admitted that he had shot the victim, but raised a claim of self-defense.

The defendant’s claim of self-defense was supported principally by his own testimony at trial. He testified that on August 16, 1984, two days before he had shot the victim, the victim and his brother had challenged him to come out of his apartment and had fired six shots in his direction when he had done so. He stated that the incident of August 16, combined with both warnings that he had received from his girl friend and other actions of the Comachos, led him to believe that the Comachos intended to kill him. He testified further that when he had heard the victim in the hallway outside his apartment door, he had believed that the victim had come for him and was armed. He claimed consequently that when he had opened his apartment door and had shot the victim, he had been justified in doing so because he had reasonably believed that the victim had been about to use deadly physical force or about to inflict great bodily harm upon him.

The trial court apparently agreed with the defendant that he had a colorable claim of self-defense and charged the jury on that theory. In the course of its charge, the court instructed the jury: “On the law of self-defense, the law recognizes certain exceptions to the justification of the use of physical force as self-defense, and in this case specifically, the use of deadly physical force. Those were earlier referred to as subsections (b) and (c) of § 53a-19. . . .

“Subsection (c) insofar as is applicable to this case states as follows, that again, ‘Notwithstanding the provisions of subsection (a), that a person is not justified in using physical force when he [meaning the defendant], was the aggressor.’ This exception presents a question of fact for you to determine. Thus, if you find proven beyond a reasonable doubt that the defendant was, in fact, the aggressor, meaning that he was the first to use physical force, then the state has succeeded in disproving the defense of self-defense. ” (Emphasis added.)

The defendant excepted to the above portion of the trial court’s charge in a timely fashion. In taking his exception, he stated that the court had incorrectly defined an aggressor as “the first to use physical force.” The court, however, declined to reinstruct the jury. Subsequently, the defendant filed a motion for a new trial claiming that the court’s instruction was incorrect under § 53a-19 (a) (1) and (2), which permit the use of deadly physical force against another who is “about to use deadly physical force” or “about to inflict great bodily harm.” He argued that the trial court’s instruction had deprived him of his right to present a defense and to due process of law. The trial court denied his motion and the defendant duly excepted.

“ ‘A fundamental element of due process is the right of a defendant charged with a crime to establish a defense. . . .’ ” State v. Adams, 225 Conn. 270, 283, 623 A.2d 42 (1993), quoting State v. Belle, 215 Conn. 257, 273, 576 A.2d 139 (1990). “This fundamental constitutional right includes proper jury instructions on the elements of self-defense so that the jury may ascertain whether the state has met its burden of proving beyond a reasonable doubt that the assault was not justified.” State v. Miller, 186 Conn. 654, 660-61, 443 A.2d 906 (1982). “The standard of review to be applied on this constitutional claim is whether ‘it is reasonably possible that the jury were misled.’ State v. Corchado, [188 Conn. 653, 660, 453 A.2d 427 (1982)].” State v. DeJesus, 194 Conn. 376, 388, 481 A.2d 1277 (1984); State v. Grullon, 212 Conn. 195, 204, 562 A.2d 481 (1989).

Except in circumstances manifestly not present in the present case, a person is not justified in using physical force in self-defense if he is the initial aggressor. See General Statutes § 53a-19 (c) (2). Therefore, if the jury found that the defendant was the aggressor in his encounter with the victim, he could not prevail on his claim of self-defense. State v. Silveira, 198 Conn. 454, 469, 503 A.2d 599 (1986). The trial court made it impossible for the defendant to prevail on his claim of self-defense under the facts of this case when it instructed the jury that if it found “proven beyond a reasonable doubt that the defendant was, in fact, the aggressor, meaning that he was the first to use physical force, then the state has succeeded in disproving the defense of self-defense.” (Emphasis added.) See General Statutes § 53a-12 (a). The undisputed facts at trial were that the defendant had been the first to use physical force when he shot and wounded the victim. Moreover, the defendant admitted in his testimony that he had been the first to use actual physical force. The effect of the court’s instruction, therefore, was to take away with one hand the defense it had permitted the jury to consider with the other.

It is not the law, however, that the person who first uses physical force is necessarily the initial aggressor under § 53a-19 (c) (2). See State v. Silveira, supra, 469; State v. Tyson, 23 Conn. App. 28, 37, 579 A.2d 1083, cert. denied, 216 Conn. 829, 582 A.2d 207 (1990). To attach such a meaning to § 53a-19 (c) (2) would run counter to the plain language of § 53a-19 (a), which states in pertinent part that “a person is justified in using reasonable physical force upon another person to defend himself or a third person from what he reasonably believes to be the use or imminent use of physical force, and he may use such degree of force which he reasonably believes to be necessary for such purpose; except that deadly physical force may not be used unless the actor reasonably believes that such other person is (1) using or about to use deadly physical force, or (2) inflicting or about to inflict great bodily harm.” (Emphasis added.)

A court should accord a statutory enactment its plain meaning. Kilpatrick v. Board of Education, 206 Conn. 25, 28, 535 A.2d 1311 (1988); State v. Delafose, 185 Conn. 517, 521, 441 A.2d 158 (1981). Moreover, the meaning of statutory language must be determined from a reading of the statute as a whole. State v. Williams, 206 Conn. 203, 210, 536 A.2d 583 (1988). Read according to its plain language, and as a whole, doubtlessly § 53a-19 contemplates that a person may respond with physical force to a reasonably perceived threat of physical force without becoming the initial aggressor and forfeiting the defense of self-defense. Otherwise, in order to avoid being labeled the aggressor, a person would have to stand by meekly and wait until an assailant struck the first blow before responding. If an assailant were intending to employ deadly force or inflict great bodily harm, such an interpretation of the statute would be extremely dangerous to one’s health. Such a bizarre result could not have been intended by the legislature. “The law favors a rational statutory construction and we presume that the legislature intended a sensible result.” State v. Parmalee, 197 Conn. 158, 165, 496 A.2d 186 (1985).

Because the trial court’s definition of “aggressor” in its instructions was incorrect, we must determine whether it is reasonably possible that the incorrect definition misled the jury. State v. Grullon, supra. We have reviewed the trial court’s entire charge. Other than the single instruction to which the defendant excepted, the court correctly stated the law of self-defense. At other points in its charge, the court properly focused the jury’s attention on the reasonableness of the defendant’s belief that the victim was about to use deadly force or inflict great bodily harm upon him to guide the jury in making its determination as to whether the defendant was justified in his actions. The court also informed the jury that, if the defendant reasonably believed that the victim was about to use deadly physical force or inflict great bodily harm upon him, he could respond with deadly force and that the state had the burden to disprove his defense beyond a reasonable doubt. The instruction that, by virtue of the undisputed facts, conclusively designated the defendant the initial aggressor was, however, never explicitly corrected or retracted.

The trial court’s definition of “aggressor,” therefore, remained for the jury’s consideration and could have been instrumental in its determination that the defendant had not presented a viable claim of self-defense. “ ‘The jury are presumed to follow the court’s directions in the absence of a clear indication to the contrary.’ State v. Griffin, 175 Conn. 155, 160, 397 A.2d 89 (1978); State v. Glenn, 194 Conn. 483, 497, 481 A.2d 741 (1984); State v. Washington, 182 Conn. 419, 429, 438 A.2d 1144 (1980).” State v. Negron, 221 Conn. 315, 331, 603 A.2d 1138 (1992). As in State v. Corchado, supra, 667, the trial court’s instruction “fairly construed, foreclosed the defendant from his right to have the jury pass upon his claim of self-defense under § 53a-19.” Even in the context of the court’s entire charge, we cannot say with any degree of confidence that language as dispositive as the court’s definition of “aggressor” failed to have an impact on the jury. We conclude consequently that it is reasonably possible that the trial court’s definition of “aggressor” misled the jury in its deliberations concerning the defendant’s claim of self-defense. The defendant is therefore entitled to a new trial. See State v. Grullon, supra, 205-206.

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

In this opinion the other justices concurred.

       General Statutes § 53a-59 provides in pertinent part: “assault in the first degree: class b felony, (a) A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument. . . .”

       The Appellate Court in its opinion did not specifically state that the “initial aggressor” instruction given by the trial court was improper.

       In its entirety, the certified question reads as follows: “In a trial for assault in the first degree where the defense presented evidence that the defendant’s use of deadly physical force was based on his reasonable belief that the victim was about to use deadly physical force against him, and the trial court erroneously instructed the jury that notwithstanding the provisions of General Statutes § 53a-19 (a), a claim of self-defense would be defeated if the defendant was the first person to use physical force, did the Appellate Court correctly conclude it was not reasonably possible for the jury to have been misled?” State v. Jimenez, 225 Conn. 916, 623 A.2d 1026 (1993).

       The Appellate Court noted in its opinion: “The issue in this appeal is not whether there was sufficient evidence to support a jury instruction on self-defense. The sole issue is whether the trial court improperly instructed the jury as to the ‘initial aggressor’ exception to General Statutes § 53a-19 (a), which is contained in General Statutes § 53a-19 (c).” State v. Jimenez, 30 Conn. App. 406, 409, 620 A.2d 817 (1993).

       General Statutes § 53a-19 provides in pertinent part: “use of physical force in defense of person, (a) Except as provided in subsections (b) and (c) of this section, a person is justified in using reasonable physical force upon another person to defend himself or a third person from what he reasonably believes to be the use or imminent use of physical force, and he may use such degree of force which he reasonably believes to be necessary for such purpose; except that deadly physical force may not be used unless the actor reasonably believes that such other person is (1) using or about to use deadly physical force, or (2) inflicting or about to inflict great bodily harm. . . .
      “(c) Notwithstanding the provisions of subsection (a) of this section, a person is not justified in using physical force when (1) with intent to cause physical injury or death to another person, he provokes the use of physical force by such other person, or (2) he is the initial aggressor, except that his use of physical force upon another person under such circumstances is justifiable if he withdraws from the encounter and effectively communicates to such other person his intent to do so, but such other person notwithstanding continues or threatens the use of physical force, or (3) the physical force involved was the product of a combat by agreement not specifically authorized by law.”

       General Statutes § 53a-12 provides: “defenses; burden of proof. (a) When a defense other than an affirmative defense, is raised at a trial, the state shall have the burden of disproving such defense beyond a reasonable doubt.”


author: Katz, J.

text:
    Paul B. Lussier, Jr., Administrator (Estate of Gaye D. Lussier) v. Department of Transportation
    (14698)
    Peters, C. J., Callahan, Berdon, Katz and Palmer, Js.
    Argued October 28, 1993—
    decision released January 25, 1994

      Robert B. Keville, with whom were Thomas B. Wilson and, on the brief, Eugene K. Swain, for the appellantappellee (plaintiff).

      Michael P. Carey, with whom, on the brief, was Michael E. Driscoll, for the appellee-appellant (defendant).
   Katz, J.

This defective highway action poses two questions for the court: (1) whether a defect in the civil summons form listing the defendant as the state of Connecticut, department of transportation, deprives the court of subject matter jurisdiction when (a) the complaint caption identifies the defendant as the commissioner of transportation, (b) the commissioner of transportation is named as the party responsible for highway maintenance, (c) his office accepts service of process, and (d) the statutory notice is sent to the commissioner of transportation; and (2) whether the statutory notice, which itself did not give the exact location of the patch of ice on which the decedent lost control of her vehicle, but which was supplemented by more precise information contained within an affidavit submitted by the plaintiff, can survive a motion to dismiss?

The following allegations are undisputed for the purposes of this appeal. The plaintiff, Paul B. Lussier, Jr., administrator of the estate of Gaye D. Lussier, by complaint dated December 31,1991, alleged that on January 11,1990, at approximately 7:35 a.m., the plaintiff’s decedent, Gaye D. Lussier, had been driving her 1989 Toyota in a southerly direction on route 617 in North Stonington when her vehicle, at a point on route 617 where the highway crosses the Shunock River, left the travel lane and, due to icy conditions, struck guardrails on the northbound side of the highway. The complaint further alleged that the vehicle proceeded to slide down an embankment on the east side of route 617 and flipped over, finally coming to rest on its roof in the river below. The force of the collision resulted in injuries that made it impossible for the decedent to escape from her disabled vehicle, thereby causing her to drown in approximately one and one-half feet of water. The plaintiff alleged that the defendant, Emil H. Frankel, or a predecessor, was the commissioner of transportation of the state of Connecticut (commissioner) at the time of the accident and that it is the commissioner’s duty pursuant to General Statutes § lSa-144 to keep and maintain in a reasonably safe condition all highways, bridges and sidewalks in the state highway system. The plaintiff alleged that the decedent’s injuries and resulting death had been proximately caused by the negligence and carelessness of the commissioner in that he had breached this statutory duty in one or more ways.

Although the caption of the complaint read: “Paul B. Lussier, Jr., Administrator of the Estate of Gaye D. Lussier vs. Emál H. Frankel, Commissioner of Transportation of the State of Connecticut,” the writ of summons listed the named defendant as the “State of Connecticut, Department of Transportation, by serving the Commissioner of the Department of Transportation, Emil H. Frankel, 24 Wolcott Hill Road, Wethersfield, CT 06109.” Service of the complaint was made on Jane S. Scholl, associate attorney general, and Linda Laporte, senior clerk at the office of the commissioner, department of transportation, state of Connecticut.

On February 6, 1992, counsel for the state of Connecticut, department of transportation (department), entered a general appearance. On May 14, 1992, the department moved to dismiss the complaint on the grounds that the action was barred both under the doctrine of sovereign immunity and because of defects in the required statutory notice. The trial court rejected the department’s claim that the statutory notice lacked sufficient specificity, but agreed that by failing to name the commissioner of transportation as the defendant in the summons, the plaintiff had failed to sue the appropriate party pursuant to § 13a-144. The trial court, therefore, dismissed the complaint. It is from this judgment that the plaintiff appealed.

On appeal, the plaintiff claims that in a civil action seeking damages for the wrongful death of the plaintiff’s decedent, brought under the defective highway statute, where the complaint named the defendant as Emil H. Frankel, commissioner of transportation of the state of Connecticut, but the summons listed the “defendant” as “State of Connecticut, Department of Transportation, by serving the Commissioner of the Department of Transportation, Emil H. Frankel, 24 Wolcott Hill Road, Wethersfield, CT 06109,” the trial court should not have dismissed the complaint for lack of subject matter jurisdiction on the ground of sovereign immunity. The department filed a cross appeal and claimed that the trial court had improperly concluded that the notice was not patently defective. We agree with the plaintiff on his claim and reject the department’s alternate ground for affirmance.

I

The department claimed that because the civil summons form listed the defendant as the “State of Connecticut, Department of Transportation,” this was a defect that stripped the court of subject matter jurisdiction. Specifically, the department maintained that § 13a-144 requires that claims arising from accidents on public roads be brought against the commissioner. Because the commissioner had not been named as the defendant in the summons, the department argued that the trial court was without subject matter jurisdiction. The plaintiff, on the other hand, argued that the failure to name the commissioner as the defendant in the summons was a mere circumstantial defect that did not affect the court’s jurisdiction over the claim, and, therefore, that the caption of the complaint and the allegations contained therein were sufficient to bring the case within the strictures of § 13a-144.

It is undisputed that the commissioner was properly-named in the complaint, that the department was served, and that statutory notice had been provided to then commissioner of transportation, J. William Burns. The department argues, nevertheless, that the defect in the civil summons form that identified the commissioner of the department “as an agent for service” served to strip the trial court of subject matter jurisdiction. We disagree.

Section 13a-144 constitutes only a limited waiver of the state’s sovereign immunity in cases involving alleged highway defects. Lacasse v. Burns, 214 Conn. 464, 468-70, 572 A.2d 357 (1990). Furthermore, because the statute constitutes a break with common law, it must be strictly construed. DeFonce Construction Corp. v. State, 198 Conn. 185, 188, 501 A.2d 745 (1985), superseded by statute as stated in Ducci Electrical Contractors, Inc. v. Department of Transportation, 28 Conn. App. 175, 611 A.2d 891 (1992). Once its immunity has been waived, however, the state will be treated “in a manner identical to any other litigant, except for the taxation of costs ... or the award of prejudgment interest when a defendant has failed to accept an offer of judgment equal to or less than the amount recovered.” (Citations omitted.) Lacasse v. Burns, supra, 469.

This case presents a classic example of a common defect in process involving the designation of the defendant. The plaintiff argues that the name of the defendant was merely stated incorrectly while the department maintains that the plaintiff correctly stated the name of the wrong person or entity as the defendant. These two different categories of defects, though easily confused, are readily distinguished. The first, involving a defendant designated by an incorrect name, is referred to as a “misnomer.” It is a circumstantial defect anticipated by General Statutes § 52-123 that can be cured by amendment. A misnomer must be distinguished from a case in which the plaintiff has misconstrued the identity of the defendant, rather than the legal nature of his existence.

When the correct party is designated in a way that may be inaccurate but which is still sufficient for identification purposes, the misdesignation is a misnomer. Such a misnomer does not prevent the exercise of subject matter jurisdiction if the defendant was actually served and knew he or she was the intended defendant. This is in contradistinction to the case in which the plaintiff has misconstrued the identity of the defendant and has therefore named and served the wrong party. The issue, then, is “whether a misnomer is a designation of the right party in a way which may be inaccurate but which is still sufficient for identification purposes or whether the wrong person has been designated as a party.” 1 E. Stephenson, Connecticut Civil Procedure (2d Ed. 1970) § 105e, p. 433. Whether the plaintiff has misconstrued the identity of his or her intended defendant or merely the intended defendant’s legal name or nature is a question that may be answered only after all the circumstances have been examined. See World Fire & Marine Ins. Co. v. Alliance Sandblasting Co., 105 Conn. 640, 643, 136 A. 681 (1927).

It is undisputed that the state can act only through its officers or agents; Horton v. Meskill, 172 Conn. 615, 623, 376 A.2d 359 (1977); and that the highway commissioner, as a representative of the state, is the party upon whom the legislature intended to impose legal responsibility under § 13a-144. White v. Burns, 213 Conn. 307, 326, 567 A.2d 1195 (1990) (“[t]he commissioner . . . is the only one upon whom is imposed the duty to repair under § 13a-144”) (emphasis in original); Perrotti v. Bennett, 94 Conn. 533, 542, 109 A. 890 (1920). The plaintiff acknowledges the commissioner’s responsibility and argues that the commissioner was indeed the party identified and served. Relying on Pack v. Burns, 212 Conn. 381, 385-86, 562 A.2d 24 (1989), both before the trial court and on appeal, the plaintiff argues that it was “evident” that he had “intended” to sue the commissioner. We agree.

In Pack v. Burns, supra, this court held that § 13a-144 had been satisfied where the plaintiff named the “State of Connecticut Transportation Commission” as the defendant and served the individual authorized to receive service for the commissioner. As in Pack v. Burns, supra, 386, the statutory notice involved herein had been furnished and directed to J. William Burns, then commissioner of transportation. Further, service of the process that began the action was made at the office of the commissioner, the party ultimately responsible for highway maintenance, and not solely at the attorney general’s office. Finally, in both cases, the complaints stated that “[t]he commissioner of transportation is responsible for the maintenance of all highways, bridges and sidewalks . . . and it is the duty of such commissioner to keep and maintain the highways, bridges and sidewalks in a reasonably safe condition.” (Emphasis added.) As in Pack v. Burns, supra, we find the facts of this case to be persuasive evidence that the plaintiff intended to sue the commissioner.

Moreover, there is no claim that the commissioner had not received actual notice of the institution of the action, that he did not know that he was the proper defendant in the action, or that he had been misled to his prejudice. In Pack v. Burns, supra, the plaintiff named a nonexistent entity. Rather than assume that the plaintiff intended to sue a nonexistent commission, we read the named entity to be a designation of the proper party in a way that, although inaccurate, was still sufficient for identification purposes. We fail to see the wisdom of the department’s position that we should find a defect circumstantial when a nonentity has been named, as in Pack v. Burns, supra, but should decline to do so in this case, where the proper party, Emil Frankel, has been noticed, served, named in the complaint caption, identified as the responsible party within the text of the complaint, and correctly listed on the summons as agent for the department, which indeed he is. The designation of the department is a defect in the summons that constitutes a misnomer and falls squarely within the purview of § 52-123. We conclude, accordingly, that the trial court should not have dismissed the complaint on the basis of sovereign immunity. Consequently, we must address the department’s cross appeal or alternate ground for sustaining the judgment.

II

The department claims that the trial court should have granted its motion to dismiss because of a defective notice. A few additional undisputed facts are necessary to resolve this claim. The plaintiff in this case alleged that a notice of claim had been mailed to the commissioner. Attached to the complaint as exhibit A was the notice, addressed to William J. Burns, commissioner of the department of transportation, stating: “In compliance with Sec. 13a-144 of the Connecticut General Statutes the following notice is being reported to you.

“On January 11, 1990, at approximately 7:40 a.m. Gaye D. Lussier was killed from injuries received in a one car accident that occurred on rte. 617 (Also known as the rte. 49 access rd. in the town of North Stonington, CT.).

“Operator Lussier lost control of her vehicle due to icy road conditions. Vehicle[’s] bumper after striking the guard rails caused vehicle to flip over down an embankment coming to rest upside down in the Shunock River.”

We recently had occasion in Warkentin v. Burns, 223 Conn. 14, 610 A.2d 1287 (1992), to address the notice requirement of § 13a-144 and do not hope to improve upon that discussion today. As we remarked in Warkentin, § 13a-144 created a new cause of action not authorized at common law, in derogation of sovereign immunity. The notice requirement contained in § 13a-144 is a condition precedent which, if not met, will prevent the destruction of sovereign immunity.

“The ‘requirement as to notice was not devised as a means of placing difficulties in the path of an injured person. The purpose [of notice is] . . . to furnish the commissioner with such information as [will] enable him to make a timely investigation of the facts upon which a claim for damages [is] being made.’ (Emphasis added.) LoRusso v. Hill, 139 Conn. 554, 557, 95 A.2d 698 (1953); Schaap v. Meriden, 139 Conn. 254, 256, 93 A.2d 152 (1952); see Murray v. Milford, 380 F.2d 468, 473 (2d Cir. 1967). The notice requirement is not intended merely to alert the commissioner to the occurrence of an accident and resulting injury, but rather to permit the commissioner to gather information to protect himself in the event of a lawsuit. Morico v. Cox, 134 Conn. 218, 223, 56 A.2d 522 (1947).” Warkentin v. Burns, supra, 18. “The purpose of the requirement of notice is ‘to furnish the party against whom a claim was to be made such warning as would prompt him to make such inquiries as he might deem necessary or prudent for the preservation of his interests, and such information as would furnish him a reasonable guide in the conduct of such inquiries, and in obtaining such information as he might deem helpful for his protection.’ Cassidy v. Southbury, 86 Conn. 45, 49, 84 A. 291 [1912]; Sizer v. Waterbury, [113 Conn. 145, 156, 154 A. 639 (1932)]; Christian v. Waterbury, 123 Conn. 152, 155, 193 A. 602 [1937]. Unless a notice, in describing the place or cause of an injury, patently meets or fails to meet this test, the question of its adequacy is one for the jury and not for the court, and the cases make clear that this question must be determined on the basis of the facts of the particular case.” Morico v. Cox, supra.

The trial court held that the notice provided by the plaintiff was not patently defective. Although descriptions of the extent of the alleged ice covering, its exact location, the point at which the vehicle left the roadway and the location of the guardrails into which the vehicle collided were omitted, the court held that a reasonable jury could find that the notice was sufficient to allow the commissioner to make an intelligent inquiry.

The department argues that in denying its motion to dismiss for a defective notice of claim, the trial court made findings totally inconsistent with its ultimate decision that the notice was adequate. The trial court found that “several important details relating to the exact location of the alleged ice, the point at which the vehicle left the roadway, and the location of the guardrails into which the vehicle collided” had been omitted. Despite these comments and the trial court’s added remark that the notice was “unclear as to the extent of the alleged ice covering,” it found that the notice was not patently defective.

The department claims that in reaching its ultimate decision, the trial court relied on information which was not made apparent from the notice itself: that the person in the accident died at the scene and without any witnesses to the accident. This information was discovered, the department asserts, in documentation submitted by the plaintiff in response to the department’s motion to dismiss. The department also maintains that the trial court applied a “contextual” standard to uphold the notice, an approach the department asserts this court has disavowed.

We agree with the department that when the adequacy of notice is at issue, there is no relaxed standard exception in death cases. Notices of claim should not be judged by different standards depending upon the extent of the injury. The purpose of § 13a-144 “is to allow the commissioner to protect himself against claims, that protection should apply equally to claims for injury to persons or property and claims for death.” Warkentin v. Burns, supra, 20. Had the trial court herein applied a different standard of construction to the notice requirement in determining whether the plaintiff had complied with § 13a-144 because the accident had resulted in a fatality, it would have been without authority. The trial court, however, did not do that. While the trial court may have inaccurately articulated the applicable standard, we conclude that it was not incorrect in determining, as a matter of law, that the notice given in this case was sufficient.

Immediately prior to its comment that precision is especially difficult when the accident victim dies without another witness to the tragedy, the trial court quoted from Judd v. New Britain, 81 Conn. 300, 70 A. 1028 (1908), in support of the notion of “reasonable definiteness.” “ ‘It is obvious that in many cases exactness of statement as to place cannot be expected, for the excitement and disturbance caused by the accident . . . make it impossible to observe with any carefulness the place where the accident occur [red], and often the person injured is unable to revisit the places within the time allowed by the statute for the giving of notice. In such cases reasonable definiteness is all that can be expected or should be required.’ ” Id., 304, quoting Tuttle v. Winchester, 50 Conn. 496, 498 (1883).

There are many circumstances when precision will be difficult, if not impossible to achieve, including but not limited to those when the person in the accident dies. Such precision is, therefore, not essential in order to comply with § 13a-144. The notice need not “be expressed with the fullness and exactness of a pleading.” Delaney v. Waterbury & Milldale Tramway Co., 91 Conn. 177, 181, 99 A. 503 (1916). Under § 13a-144, the notice must provide sufficient information as to the injury and the cause thereof and the time and place of its occurrence to permit the commissioner to gather information about the case intelligently. Bresnan v. Frankel, 224 Conn. 23, 26, 615 A.2d 1040 (1992).

The notice involved herein did not “patently . . . [fail] to meet this test.” Morico v. Cox, supra, 223. The road in question is only three-tenths of one mile long. The notice recites that the car landed in the Shunock River and that the river crosses under route 617 at only one place. Unlike other cases wherein notice was found to be deficient; Bresnan v. Frankel, supra (“Route 14A, Plainfield, Connecticut,” without further reference to any point along this six mile long road); Schaap v. Meriden, supra, 257 (“near the edge of a manhole cover” with no other information directing the defendant to any particular one of the numerous manholes found to have existed in the area); Moffett v. Burns, 18 Conn. App. 821, 559 A.2d 1190, cert. denied, 212 Conn. 806, 561 A.2d 947 (1989) (notice describing location of accident as “Route 109, New Milford, Connecticut 06776”); Ozmun v. Burns, 18 Conn. App. 677, 679, 559 A.2d 1143 (1989) (“in the vicinity of the Ensign Bickford Company between the traffic lights”); the notice given here set forth sufficient facts to fulfill the statutory requirement. The plaintiff filed and served the affidavit of Trooper Gary Butters which indicated that route 617 is a short road of approximately three-tenths of one mile in length. The police report was also appended to the trooper’s affidavit. The department argues that the notice cannot be supplemented with information from third party sources. In Bresnan v. Frankel, supra, 27, we stated that the statutory notice must be furnished by the injured party directly through his representative and that information from third party sources cannot cure defects in the notice. By that statement we did not mean to, nor do we today, suggest that the court cannot consider affidavits submitted pursuant to Practice Book § 143 which allows a party objecting to a motion to dismiss to file “supporting affidavits as to facts not apparent on the record.” Such information may be admissible, not as a substitute, but rather to educate the court in determining whether the notice itself was sufficient. The plaintiff is not required to be a cartographer in order to be able to describe adequately to the commissioner the location of the defect. The commissioner must be able to investigate, and the court must be able to ascertain, the feasibility of that endeavor. It is with that latter purpose in mind that we read § 143 to allow the plaintiff to submit to the court the affidavit and police report containing undisputed facts. Barde v. Board of Trustees, 207 Conn. 59, 60, 539 A.2d 1000 (1988). Accordingly, we affirm the trial court’s decision on the question of notice.

The judgment is reversed and the case is remanded for further proceedings.

In this opinion Peters, C. J., Callahan and Palmer, Js., concurred.

Berdon, J., concurring. I concur in the result.

       General Statutes § 13a-144 provides: “Any person injured in person or property through the neglect or default of the state of any of its employees by means of any defective highway, bridge or sidewalk which it is the duty of the commissioner of transportation to keep in repair, or by reason of the lack of any railing or fence on the side of such bridge or part of such road which may be raised above the adjoining ground so as to be unsafe for travel or, in case of the death of any person by reason of any such neglect or default, the executor or administrator of such person, may bring a civil action to recover damages sustained thereby against the commissioner in the superior court. No such action shall be brought except within two years from the date of such injury, nor unless notice of such injury and a general description of the same and of the cause thereof and of the time and place of its occurrence has been given in writing within ninety days thereafter to the commissioner. Such action shall be tried to the court or jury, and such portion of the amount of the judgment rendered therein as exceeds any amount paid to the plaintiff prior thereto under insurance liability policies held by the state shall, upon the filing with the comptroller of a certified copy of such judgment, be paid by the state out of the appropriation for the commissioner for repair of highways; but no costs or judgment fee in any such action shall be taxed against the defendant. This section shall not be construed so as to relieve any contractor or other person, through whose neglect or default any such injury may have occurred, from liability ió the state; and, upon payment by the comptroller of any judgment rendered under the provisions of this section, the state shall be subrogated to the rights of such injured person to recover from any such contractor or other person an amount equal to the judgment it has so paid. The commissioner, with the approval of the attorney general and the consent of the court before which any such action is pending, may make an offer of judgment in settlement of any such claim. The commissioner and the state shall not be liable in damages for injury to person or property when such injury occurred on any highway or part thereof abandoned by the state or on any portion of a highway not a state highway but connecting with or crossing a state highway, which portion is not within the traveled portion of such state highway. The requirement of notice specified in this section shall be deemed complied with if an action is commenced, by a writ and complaint setting forth the injury and a general description of the same of the cause thereof and of the time and place of its occurrence, within the time limited for the giving of such notice.”

       Specifically, the plaintiff alleged: “(a) Route 617 in which the decedent was travelling was covered with ice hence the road was hazardous for vehicular traffic;
      “(b) There was no attempt made to sand or salt said Route 617 or take any other steps so as to render said portions safe for vehicular traffic;
      “(c) In that no signs or other warning devices had been erected to warn approaching motorists of the dangerous and hazardous conditions then and there existing;
      “(d) In that the highway was not reasonably safe for purposes and uses intended;
      “(e) In that the defendant knew, or in the exercise of reasonable care and inspection, should have known, of the conditions and remedied and corrected same;
      “(f) In that the ice conditions had existed for a sufficient period of time so that the defendant knew or should have taken measures to remedy and correct them, but failed to do so.”

       After the dismissal of this action, the plaintiff commenced a new action against the commissioner of transportation, entitled Paul B. Lussier, Jr., Administrator (Estate of Gaye D. Lussier) v. Emil H. Frankel, Commissioner of Transportation, Docket No. CV-92-0525125S, which is pending in the Superior Court in New London. The defendant in that case has moved to dismiss that action.

       The department also makes this claim as an alternate ground for affirmance pursuant to Practice Book § 4013, which provides in pertinent part: “(a) At the time the appellant sends a copy of the endorsed appeal form and the docket sheet to the appellate clerk, the appellant shall also send the appellate clerk an original and one copy of the following:
      “(1) A preliminary statement of the issues intended for presentation on appeal. If any appellee wishes to (A) present for review alternate grounds upon which the judgment may be affirmed . . . that appellee shall file a preliminary statement of issues within fourteen days from the filing of the appellant’s preliminary statement of the issues.”
      Both the plaintiffs appeal and the department’s cross appeal were transferred from the Appellate Court to the Supreme Court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c).

       General Statutes § 52-64 provides: “Service of civil process in any civil action or proceeding maintainable against or in any appeal authorized from the actions of, or service of any foreign attachment or garnishment authorized against, the state or against any institution, board, commission, department or administrative tribunal thereof, or against any officer, servant, agent or employee of the state or of any such institution, board, commission, department or administrative tribunal, as such, may be made by leaving a true and attested copy of the process, including the declaration or complaint, with the attorney general or at his office in Hartford.”
      Both the attorney general, who is authorized to accept service for the department, and a clerk at the office of the commissioner of the department were served.

       General Statutes § 52-123 provides: “No writ, pleading, judgment or any kind of proceeding in court or course of justice shall be abated, suspended, set aside or reversed for any kind of circumstantial errors, mistakes or defects, if the person and the cause may be rightly understood and intended by the court.”

       “The summons is the notice to the defendant that an action has been commenced against him and a direction to him to appear and defend. The giving of the summons is accomplished by ‘service’ of the writ, accompanied by the complaint.” 1 E. Stephenson, Connecticut Civil Procedure (2d Ed. 1970) § 18, p. 60. Service of process without the complaint is, however, a nullity. Galvin v. Birch, 97 Conn. 399, 400, 116 A. 908 (1922). Therefore, although we are aware of the significance of the summons, when faced with a motion to dismiss, we caution against relying exclusively on alleged defects in the summons to determine intent when the complaint and notice are clear and unambiguous.

       Because we hold that the summons contained a mere misnomer or circumstantial defect, it is not necessary for us to decide whether a suit against the state of Connecticut, department of transportation, is a suit against its commissioner that would survive a motion to dismiss for failure to comply strictly with General Statutes § 13a-144.


author: Katz, J. Berdon, J.,

text:
    Alan Amore et al. v. Emil Frankel, Commissioner of Transportation
    (14689)
    Callahan, Borden, Berdon, Norcott and Katz, Js.

      Argued November 4, 1993—
    decision released January 25, 1994

      Michael J. O’Sullivan, for the appellant (defendant).

      Robert J. Enright, for the appellee (named plaintiff).
   Katz, J.

The dispositive issue before the court is whether the trial court correctly granted a motion to dismiss for lack of subject matter jurisdiction. The basis of the trial court’s ruling was that the plaintiff’s claim did not come within the exception to sovereign immunity provided by General Statutes §§ 13a-144 and lSb-30, because the plaintiff had failed to allege that the repair and maintenance of the driveway on which he had fallen, which was located on the campus of the University of Connecticut and was not within the “state highway system,” were the responsibility of the commissioner of transportation by virtue of a request for repair or maintenance having been made by any official of the University of Connecticut.

The relevant facts are reported in the decision of the Appellate Court, to which the plaintiffs appealed from the judgment of dismissal. “The plaintiffs, Alan and Ellen Amore, filed a two count complaint against Emil Frankel, the state commissioner of transportation [commissioner]. In count one, they claimed that the state owed them a duty to maintain the roads and sidewalks on the Storrs campus of the University of Connecticut. The plaintiffs alleged that the state failed to reduce the hazards associated with icy and wet road conditions which ultimately caused the injuries that the named plaintiff sustained in his fall on an icy driveway. In count two, the plaintiffs claimed loss of consortium on behalf of the named plaintiff’s wife.

“Pursuant to Practice Book §§ 142 and 143, the [commissioner] filed a motion to dismiss, asserting that the doctrine of sovereign immunity deprived the court of subject matter jurisdiction. The [commissioner] also filed two supporting affidavits as evidence that the [commissioner] was not responsible for the maintenance of the roads at issue. In light of these affidavits, the trial court found that the road ‘was outside the scope of the commissioner’s duty to maintain or repair pursuant to [General Statutes] section 13b-30 or 13a-144. Hence, the [commissioner’s] motion to dismiss [was] granted.’ The court reasoned that without proof of the [commissioner’s] duty, the doctrine of sovereign immunity applied and deprived the court of subject matter jurisdiction.” Amore v. Frankel, 29 Conn. App. 565, 566-67, 616 A.2d 1152 (1992).

The Appellate Court reversed the judgment of the trial court. The Appellate Court held that the complaint, on its face, sufficiently established subject matter jurisdiction pursuant to § 13a-144 and thereby overcame the doctrine of sovereign immunity. The Appellate Court stated that the complaint’s allegation of the commissioner’s duty to maintain the driveway was adequate to withstand a motion to dismiss for lack of jurisdiction, and that the trial court should not have relied on the commissioner’s affidavits, submitted pursuant to Practice Book § 143, in granting his motion to dismiss. The Appellate Court reasoned that because the affidavits challenged the complaint on the issue of whether the commissioner had any duty to maintain or repair the driveway, they did not concern a jurisdictional issue but rather related to a substantive matter more properly addressed through a motion for summary judgment. Accordingly, the Appellate Court concluded that the trial court had improperly dismissed the first count of the complaint. Because the affidavits submitted in this case, in the absence of any response from the plaintiff, conclusively defeated the court’s subject matter jurisdiction pursuant to §§ 13a-144 and 13b-30, we disagree with the Appellate Court. Accordingly, we answer the second certified question in the negative and reverse.

As we have stated many times before, the doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss. Lussier v. Department of Transportation, 228 Conn. 343, 349-50, 636 A.2d 808 (1994); Tamm v. Burns, 222 Conn. 280, 289, 610 A.2d 590 (1992); Sanzone v. Board of Police Commissioners, 219 Conn. 179, 185-86, 592 A.2d 912 (1991); White v. Burns, 213 Conn. 307, 312, 567 A.2d 1195 (1990); Duguay v. Hopkins, 191 Conn. 222, 227, 464 A.2d 45 (1983). We also have recognized that the state can consent to be sued and that “[t]he state, which ordinarily would not be liable, permitted itself, as a matter of grace, to be sued under the express conditions of [§ 13a-144].” White v. Burns, supra. Therefore, when a plaintiff alleges sufficient facts to comport with the legislative waiver contained in § 13a-144, the complaint will withstand a challenge by the state on the basis of sovereign immunity.

In Cairns v. Shugrue, 186 Conn. 300, 308, 441 A.2d 185 (1982), we held that § 13a-144 does not only apply to injuries occurring upon roads within the “state highway system.” Rather, under § 13a-144, whenever it is shown that the commissioner “has a legal duty to repair or maintain a particular [road], he [or she] is subject to liability for injuries occurring thereon which are caused by negligence in performing that duty.” Id., 310. Section § 13b-30 imposes on the commissioner such a legal duty to repair or maintain roads and drives on state grounds “on request of the state agency having jurisdiction over the property involved.” Thus, when it is shown that the commissioner has a legal duty to repair or maintain such roads and drives pursuant to § 13b-30, § 13a-144 imposes liability on the commissioner for injuries sustained on those roads and drives as a result of the commissioner’s negligence in perform.ing his or her duty.

In this case, the plaintiff alleged that the commissioner was “responsible for the maintenance of highways, sidewalks, roads and drives on the grounds of state institutions, including, but not limited to the Storrs campus of the University of Connecticut. At all pertinent times, said highways, sidewalks, roads and drives included a driveway that ran from the vicinity of the Wilbur Cross Library on the Storrs campus, forming a‘T’ intersection with Glenbrook Road.” The plaintiff further alleged that as he proceeded to walk across the surface of that driveway, walking essentially parallel to Glenbrook Road, he fell and sustained injuries. The plaintiff asserts that his injuries were caused by the commissioner’s breach of duty in that the commission had failed to: (1) maintain the driveway, (2) warn the plaintiff of the dangerous condition of the driveway’s surface, and (3) take appropriate remedies to correct that condition.

The commissioner argues that the plaintiff alleged neither that the University of Connecticut, through the appropriate party, had requested the commissioner to maintain and improve the roads on the Storrs campus, nor that the driveway on the campus is included in the “state highway system.” Instead, the commissioner maintains, the plaintiff’s allegations of responsibility by the commissioner for the “drives” on the Storrs campus is a statement of a legal conclusion that he disputes.

Following this court’s pronouncement in Barde v. Board of Trustees, 207 Conn. 59, 62, 539 A.2d 1000 (1988), that, where affidavits contesting facts in the complaint are provided, the trial court need not conclusively presume the validity of the allegations of the complaint, the commissioner filed, along with his motion to dismiss, affidavits disclosing that employees of the University of Connecticut maintain or repair the driveway where the fall occurred and that the commissioner did not share that responsibility. The plaintiff did nothing to contradict these allegations. The plaintiff argues instead that the affidavits are irrelevant to the critical issue of the existence of a duty to maintain the area in question. The affidavits do no more, according to the plaintiff, than assert a conclusory denial of the existence of any legal duty without any supporting facts. He claims, therefore, that there was no need to respond and that his complaint was sufficient to survive a jurisdictional challenge. We disagree.

Section 13a-144 imposes liability on the commissioner for injuries occurring on “any defective highway, bridge or sidewalk which it is the duty of the commissioner ... to keep in repair.” As discussed above, however, because the driveway in question is not part of the “state highway system,” whether it falls within the commissioner’s duty to repair or maintain turns on § 13b-30. Cairns v. Shugrue, supra, 310. Section 13b-30 expressly provides that the commissioner has the duty to improve and maintain roads and drives on the grounds of state institutions only when the state agency having jurisdiction over the property has first made a request to the commissioner to improve and maintain the property. It is only by virtue of § 13b-30 that the driveway on the University of Connecticut campus falls within the commissioner’s duty to maintain or repair. Id. Therefore, to establish liability under § 13a-144, the plaintiff first must allege sufficient facts to bring the driveway in question within § 13b-30.

In this case, the commissioner’s motion to dismiss and supporting affidavits challenged the plaintiff’s legal assertion that the duty to maintain and repair the driveway rested with the commissioner of transportation. The affidavits stated that the driveway in question is the responsibility of the physical plant department of the University of Connecticut; that the university’s landscaping crew, in particular, maintained the driveway; that the driveway is outside the responsibilities of the department of transportation; and that the department of transportation did not own or maintain the driveway in question.

The factual underpinnings of the allegations in the affidavits were sufficient to defeat any presumption of truth in the plaintiff’s assertion of a legal obligation on the part of the commissioner to maintain the driveway. Merrimac Associates, Inc. v. DiSesa, 180 Conn. 511, 513-17, 429 A.2d 967 (1980). Moreover, once the commissioner’s affidavits placed the caretaking of the university grounds in the hands of the landscaping crew of the University of Connecticut, it was incumbent on the plaintiff to dispute the facts contained within the affidavits. Specifically, because compliance with § 13b-30 is a prerequisite to the imposition of liability pursuant to § 13a-144 when grounds of a state institution not within the state highway system are involved; Cairns v. Shugrue, supra, 304; the plaintiff was obligated to provide some factual allegation that would bring the complaint within § 13b-30. The plaintiffs decision not to respond to the commissioner’s affidavits left the pleadings bare of any facts that could have colorably supported a claim of responsibility pursuant to the exception to sovereign immunity contained in § 13a-144. Moreover, in the absence of any disputed issues of fact pertaining to jurisdiction, there was no need to hold an evidentiary hearing before deciding the motion to dismiss. American Laundry Machinery, Inc. v. State, 190 Conn. 212, 218, 459 A.2d 1031 (1993). Accordingly, we hold that the trial court properly dismissed the first count of the plaintiff’s complaint.

The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to affirm the judgment of the trial court.

In this opinion Callahan, Borden and Norcott, Js., concurred.

Berdon, J.,

dissenting.

I agree with the opinion of the Appellate Court that the trial court should have denied the motion to dismiss. Within the broad allegations of the complaint, the plaintiff Alan Amore alleged a cause of action under General Statutes § 13a-144, which permits a suit for damages resulting from a defective highway that the defendant commissioner of transportation has a duty to maintain. General Statutes § 13b-30 extends the commissioner’s duty to maintain “the roads and drives on the grounds of state institutions,” including those of the University of Connecticut, upon request by the institution.

The commissioner argues that the plaintiffs complaint does not state a cause of action under § 13a-144 because of its failure to allege facts that bring the action under § 13b-30. On the basis of this claim, the majority concludes that the doctrine of sovereign immunity applies and the court is deprived of its subject matter jurisdiction. To put this issue in its proper perspective, subject matter jurisdiction must be defined. It “is the power of the court to hear and determine cases of the general class to which the proceedings in question belong.” Shea v. First Federal Savings & Loan Assn. of New Haven, 184 Conn. 285, 288, 439 A.2d 997 (1981).

1 find it difficult to appreciate this jurisdictional issue. Although the plaintiff failed to allege the specific statutes underlying his cause of action—that is, §§ 13a-144 and 13b-30—the allegations of the complaint clearly state the following: At the time of the fall, the commissioner was responsible for the maintenance of the roads and drives at the University of Connecticut, including the driveway where the plaintiff fell. At the Appellate Court the commissioner did “not dispute that the plaintiffs complaint alleged facts that support a cause of action under our state’s defective highway statute [§ 13a-144].” Amore v. Frankel, 29 Conn. App. 565, 569, 616 A.2d 1152 (1992). The trial court “lacks subject matter jurisdiction only if it has no competence to entertain the action before it”; Bridgeport v. Debek, 210 Conn. 175, 180, 544 A.2d 728 (1989); once the complaint alleges a cause of action that is within the competence of the trial court to entertain—in this case an action under § 13a-144—the trial court has subject matter jurisdiction. See Gurliacci v. Mayer, 218 Conn. 531, 542-45, 590 A.2d 914 (1991).

The failure to make an allegation that the University of Connecticut invoked § 13b-30 does not implicate subject matter jurisdiction. This court’s reasoning in Gurliacci v. Mayer, supra, is illuminating. The plaintiff in Gurliacci brought an action for damages against the defendant, her fellow employee, based upon negligence. The defendant moved to dismiss on the ground that the court lacked subject matter jurisdiction because the action against a fellow employee was barred by the Worker’s Compensation Act (act). The act states that an employee “shall have no cause of action against . . . [a] fellow employee to recover damages” for negligence; the act, however, provides for two exceptions. (Emphasis added.) General Statutes § 7-465 (a). The plaintiff did not allege that she came within either exception. Gurliacci v. Mayer, supra, 542. This court held that the plaintiff’s failure to allege that her cause of action came within either exception did not implicate the subject matter jurisdiction of the court. Instead, the failure merely involved the legal sufficiency of the complaint, and sufficiency of the complaint is challenged by a motion to strike. Id., 544.

Justice Borden, writing for a unanimous court in Gurliacci, stated that “the fact that the plaintiff’s complaint failed to allege facts that would have removed it from the operation of the fellow employee immunity rule merely reflects that the complaint failed to state a legally sufficient cause of action. Practice Book § 152. We have previously held that if a ‘pleading ... on its face is legally insufficient, although facts may indeed exist which, if properly pleaded, would establish a cause of action upon which relief could be granted,’ a motion to strike is required. Baskin’s Appeal from Probate, 194 Conn. 635, 640, 484 A.2d 934 (1984); see also Practice Book § 152. A motion to dismiss, by contrast, ‘properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court.’ (Emphasis in original.) Baskin’s Appeal from Probate, supra. In this case . . . [the defendant’s] motion in effect challenged the failure of the plaintiff’s original complaint to invoke the statutory exceptions to the fellow employee immunity rule. Because this challenge was to the legal sufficiency of the complaint . . . [the defendant’s] motion to dismiss was improper.” Gurliacci v. Mayer, supra, 544.

Likewise, in the present case, the failure to allege that the University of Connecticut requested the commissioner to maintain its roads and drives does not implicate subject matter jurisdiction, but instead merely affects the legal sufficiency of the complaint. “The motion to dismiss cannot be used to test whether the complaint states a cause of action. That is the purpose of the motion to strike.” 1 Connecticut Practice-Practice Book Annotated (3d Ed. 1989 W. Moller & W. Horton) § 143, p. 310, comments. Nor may it be used on the ground that there are no factual issues. This is the purpose of the motion for summary judgment. Practice Book § 379.

The majority attempts to distinguish Gurliacci by pointing out that in this case there are affidavits that stated that the commissioner was not obligated to maintain the drive at the time of the incident. This distinction misses the point. The question here is not whether the commissioner had the responsibility to maintain the drive that would make him liable for defects, but whether the trial court has the power to hear and determine an action brought against him pursuant to § 13a-144. And, of course, the answer is yes.

If we substitute the facts of this case for those of Gurliacci, Justice Borden's logic in Gurliacci demonstrates the point. “An examination of the result of [Amore’s] argument further supports our conclusion. Interpreting the language of [§ 13b-30] as subject matter jurisdictional, taken to its logical conclusion, would require a trial court, after trial, to dismiss for lack of subject matter jurisdiction a complaint that at the outset properly alleged [that a request was made to maintain the roads and drives at a state agency] if the factfinder ultimately concluded that the defendant [commissioner had never received such a request]. Thus, the court would be compelled to conclude that it had no subject matter jurisdiction over the case that it had tried solely because the plaintiff failed to establish an essential element of his cause of action. We decline to adopt such a bizarre interpretation of [§ 13b-30].” Id., 544-45. This analysis does not change simply because the commissioner submitted affidavits that state he is not responsible for maintaining the drive. The majority confuses a motion to dismiss with motions to strike and for summary judgment.

Furthermore, the complaint is sufficient even if the failure to allege that the university requested the commissioner to maintain its roads and drives does implicate subject matter jurisdiction. In determining whether the complaint alleges facts sufficient to establish subject matter jurisdiction, two well established principles must be considered. First, “[a] reviewing court should indulge every presumption in favor of the trial court’s subject matter jurisdiction.” Miko v. Commissioner on Human Rights & Opportunities, 220 Conn. 192, 198, 596 A.2d 396 (1991). Second, we must view “the factual allegations of the complaint in the light most favorable to the plaintiff.” Tamm v. Burns, 222 Conn. 280, 285 n.3, 610 A.2d 590 (1992). These principles mandate that we read the plaintiffs allegations to include the allegation that the University of Connecticut requested the commissioner to assume the duty to repair and maintain its roads and drives including the driveway on which the plaintiff fell.

The second issue, never reached by the majority, raises the question of whether the driveway comes within § 13b-30 so that the commissioner has a duty to maintain it. This purely legal issue of whether the term “drive” within § 13b-30 includes a driveway does not involve the court’s jurisdiction to entertain an action for damages under § 13a-144. Gurliacci v. Mayer, supra.

I respectfully dissent.

       General Statutes § 13a-144 provides: “damages for injuries sustained on state highways or sidewalks. Any person injured in person or property through the neglect or default of the state or any of its employees by means of any defective highway, bridge or sidewalk which it is the duty of the commissioner of transportation to keep in repair, or by reason of the lack of any railing or fence on the side of such bridge or part of such road which may be raised above the adjoining ground so as to be unsafe for travel or, in case of the death of any person by reason of any such neglect or default, the executor or administrator of such person, may bring a civil action to recover damages sustained thereby against the commissioner in the superior court. No such action shall be brought except within two years from the date of such injury, nor unless notice of such injury and a general description of the same and of the cause thereof and of the time and place of its occurrence has been given in writing within ninety days thereafter to the commissioner. Such action shall be tried to the court or jury, and such portion of the amount of the judgment rendered therein as exceeds any amount paid to the plaintiff prior thereto under insurance liability policies held by the state shall, upon the filing with the comptroller of a certified copy of such judgment, be paid by the state out of the appropriation for the commissioner for repair of highways; but no costs or judgment fee in any such action shall be taxed against the defendant. This section shall not be construed so as to relieve any contractor or other person, through whose neglect or default any such injury may have occurred, from liability to the state; and, upon payment by the comptroller of any judgment rendered under the provisions of this section, the state shall be subrogated to the rights of such injured person to recover from any such contractor or other person an amount equal to the judgment it has so paid. The commissioner, with the approval of the attorney general and the consent of the court before which any such action is pending, may make an offer of judgment in settlement of any such claim. The commissioner and the state shall not be liable in damages for injury to person or property when such injury occurred on any highway or part thereof abandoned by the state or on any portion of a highway not a state highway but connecting with or crossing a state highway, which portion is not within the traveled portion of such state highway. The requirement of notice specified in this section shall be deemed complied with if an action is commenced, by a writ and complaint setting forth the injury and a general description of the same and of the cause thereof and of the time and place of its occurrence, within the time limited for the giving of such notice.”
      General Statutes § 13b-30 provides: “maintenance of roads on state property. From funds appropriated to the department of transportation for general operations, the commissioner of transportation shall, on request of the state agency having jurisdiction over the property involved, maintain and improve the roads and drives on the grounds of state institutions, state parks, state forests and other state agencies, including the Connecticut Marketing Authority, such maintenance to include the removal of snow.”

       General Statutes § 13a-14 provides: “state highway system. There shall be a system of state highways which shall include (a) state primary highways, which are highways serving the predominant flow of traffic between the principal towns of this state and between such towns and similar towns of the surrounding states; (b) state secondary highways, which are connecting and feeder highways which supplement the state primary system by serving the predominant flow of traffic between the smaller towns of the state and between such towns and other towns in this state and in surrounding states; and (c) state special service highways, which are highways which provide access from the primary and secondary systems of state highways to federal and state facilities.”
      General Statutes § 13a-15 provides: “INCLUSION OF INTERSTATE HIGHWAY SYSTEM in STATE system. All sections of the National System of Interstate and Defense Highways in Connecticut, commonly known as the interstate highway system, as provided for in the Federal Aid Highway Act of 1956, as amended, shall be included in the state highway system.”
      General Statutes § 13a-16 provides: “official map. transfers to local jurisdiction. The state highway system shall be that system of highways as shown on the official map marked ‘State of Connecticut, State Highway System, Committee to Reclassify All Public Roads, Edwards and Kelcey-Engineers and Consultants, January 13, 1961’ and on file in the office of the commissioner and the secretary of the state, as the same may be altered from time to time in accordance with the provisions of sections 13a-42,13a-43,13a-44,13a-45 and 13a-56 and any other provisions of the general statutes authorizing or empowering the commissioner to plan, construct, reconstruct, repair, improve, manage, maintain and operate any highway. Before transferring any road from state to local jurisdiction within the time limits described below, the commissioner shall put such road in reasonably good condition and shall be open to negotiation with the selectmen of any town concerning the condition of any such road upon transfer for a period of at least sixty days before such transfer becomes effective. Transfers under this section shall take effect June 22,1961, or as soon thereafter as it is practicable for the commissioner and the towns to effect the same, but not later than September 30,1962, except for such transfers as are under arbitration. Any special act inconsistent herewith is repealed.”

       Practice Book § 142 provides in pertinent part: “MOTION TO DISMISS “Any defendant, wishing to contest the court’s jurisdiction, may db so even after having entered a general appearance, but must do so by filing a motion to dismiss within thirty days of the filing of an appearance. . . .” (Emphasis added.)
      Practice Book § 143 provides in pertinent part: “—grounds [for a MOTION TO DISMISS]
      “The motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter . . . . This motion shall always be filed with a supporting memorandum of law, and where appropriate, with supporting affidavits as to facts not apparent on the record.” (Emphasis added.)

       One affidavit was a statement given by the director of the physical plant of the University of Connecticut. In this statement, the director claimed that the area in question was within the responsibility of the University of Connecticut physical plant. The other affidavit was given by the special services manager of the bureau of highways of the department of transportation. In this statement, the manager represented that the area was outside the department of transportation’s responsibility.

       Both Alan Amore and Ellen Amore appealed from the judgment of dismissal of their claims to the Appellate Court. The Appellate Court reversed the trial court’s judgment dismissing the first count of the complaint that pertained to Alan Amore only and held that “a motion to dismiss is not the appropriate procedural device for an attack on the merits, [and that] the trial court’s reliance on the affidavits was improper.” Amore v. Frankel, 29 Conn. App. 565, 572, 616 A.2d 1152 (1992). The Appellate Court affirmed the judgment of the trial court dismissing the second count, a claim by Ellen Amore for loss of consortium. The Appellate Court then remanded the case with direction to deny the motion to dismiss as to the first count only. No petition for certification was filed by Ellen Amore. The commissioner thereafter petitioned for certification to this court challenging the Appellate Court’s decision regarding the first count of the complaint. We certified the following questions: “(1) Does the duty of the commissioner of transportation to maintain highways, bridges and sidewalks under General Statutes § 13a-144 extend to driveways? (2) Did the Appellate Court properly reverse the trial court’s dismissal of this action on the basis that the complaint stated a cause of action under General Statutes § 13a-144, notwithstanding the affidavits of the defendant indicating that the defendant had no duty to keep the area in question in repair?” Amore v. Frankel, 225 Conn. 904, 621 A.2d 286 (1993). The loss of consortium claim is, therefore, not before us, and references to the plaintiff are to Alan Amore.

       In light of our decision today that the plaintiff did not bring the university grounds within the responsibility of the commissioner of transportation, it is not necessary to resolve, and so we leave for another day, the first certified question.

       See General Statutes §§ 13a-14 through 13a-16, footnote 2.

       The dissent relies on Gurliacci v. Mayer, 218 Conn. 531, 544, 590 A.2d 914 (1991), in which we held that the plaintiffs failure to allege that her cause of action came within either of two exceptions to the Workers’ Compensation Act did not implicate the subject matter jurisdiction of the court. Its reliance is misplaced. The motion therein challenged the failure of the plaintiffs original complaint to invoke the statutory exception to the fellow employee immunity rule; however, the motion to dismiss was not accompanied by supporting affidavits that demonstrated by uncontroverted facts that the plaintiff could not as a matter of law and fact state a cause of action that should be heard by the court. In this case, the plaintiff had an opportunity, pursuant to Practice Book § 143, to file counteraffidavits to assert that the university had made a request under General Statutes § 13b-30 for the commissioner to maintain the driveway involved. Although the plaintiff recognized in his opposition to the commissioner’s motion to dismiss that the commissioner could be liable only through General Statutes §§ 13a-144 and 13b-30, he made no efforts to submit counteraffidavits, or to seek additional time within which to gather information to come within the purview of those statutes. In its memorandum of decision, the trial court clearly stated its reliance on the commissioner’s affidavits in ruling that the plaintiff had not come within the statutes conferring jurisdiction. While the plaintiff filed motions to set aside the dismissal and for reargument and/or reconsideration, he never pressed these motions but instead pursued this appeal. His failure to contradict the commissioner’s affidavits permitted the trial court, and this court, to consider the facts stated in the affidavits as established as a matter of law for purposes of this case. Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 56, 459 A.2d 503 (1983).
      Moreover, the dissent’s suggestion that it was the commissioner’s burden to contest the existence of his duty to maintain the road and drives at the University of Connecticut pursuant to §§ 13a-144 and 13b-30 makes two faulty assumptions: (1) that the plaintiff had claimed such a duty pursuant to § 13b-30 for the commissioner to dispute specifically; and (2) that the road that the parties in Cairns v. Shugrue, 186 Conn. 300, 441 A.2d 185 (1982), agreed had been the subject of a request by the university for the commissioner to maintain is the same as the driveway involved herein and continues to be covered by that request. Neither assumption is correct, leaving the record here with a barren complaint that is challenged by uncontradicted affidavits and leaving the plaintiff unable as a matter of law to state a cause of action that the court can hear; Gurliacci v. Mayer, supra; because of the overriding doctrine of sovereign immunity.

        Amare v. Frankel, 29 Conn. App. 565, 616 A.2d 1152 (1992).

       Our general practice in this state is to require fact pleading only. Although Practice Book § 109A states that pleadings should recite to statutes, “we have held that § 109A is merely directory and not mandatory.” Steele v. Stonington, 225 Conn. 217, 221 n.7, 622 A.2d 551 (1993).

       The plaintiff specifically alleges the following: “The Commissioner of Transportation is responsible for the maintenance of highways, sidewalks, roads, and drives on the grounds of State institutions, including, but not limited to the Storrs campus of the University of Connecticut.
      “At all pertinent times, said highways, sidewalks, roads, and drives included a driveway that ran from the vicinity of the Wilbur Cross Library on the Storrs campus, forming a‘T’ intersection with Glenbrook Road; said ‘T’ intersection runs approximately between Storrs Hall and Wood Hall.
      “On March 6,1989, at about 9:00 in the morning, Alan Amore was walking from the Waring Chemistry Building toward the Castleman Building on the Storrs campus. As he proceeded toward the chemistry building, he walked along Glenbrook Road, on the same side of Glenbrook Road as the chemistry building. He proceeded to walk across the surface of the aforementioned driveway, walking essentially parallel to Glenbrook Road. The surface of the driveway was wet and icy. It was neither sanded, nor salted. As a result thereof, Alan Amore fell, suffering the personal injuries and losses set forth in greater detail below.”

       In attempting to distinguish Gurliacci v. Mayer, 218 Conn. 531, 590 A.2d 914 (1991), from the present case the majority in footnote 8 demonstrates its confusion. It states that in Gurliacci, unlike this case, “the motion to dismiss was not accompanied by supporting affidavits that demonstrated by uncontroverted facts that the plaintiff could not as a matter of law and fact state a cause of action that should be heard by the court.” (Emphasis altered.) In determining whether we have subject matter jurisdiction, we are not concerned with the sufficiency of a cause of action; we simply determine whether the court had jurisdiction in cases of that general class.

       The majority relies on the commissioner’s affidavits that the maintenance of the drive on which the plaintiff fell is the responsibility of the university. It is interesting to note that the commissioner does not contest the existence of his duty to maintain the roads and drives at the University of Connecticut under General Statutes §§ 13a-144 and 13b-30. Indeed, in Cairns v. Shugrue, 186 Conn. 300, 441 A.2d 185 (1982), the commissioner conceded that a request was made by the University of Connecticut pursuant to § 13b-30.

       The majority in its attempt to equate the motion to dismiss with the motion to strike or for summary judgment relies on Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 56, 459 A.2d 503 (1983). Standard Tallow Corp., however, did not involve whether the court had subject matter jurisdiction, but rather whether it had jurisdiction in personam, which is jurisdiction over the person. See Fine v. Wencks, 117 Conn. 683, 169 A. 58 (1933). In Standard Tallow Corp., in order to determine whether the court had personal jurisdiction over the out-of-state defendant, the court was required to determine whether there were “minimum contacts” within this state to satisfy the standards set out in International Shoe Co. v. Washington, 326 U.S. 310, 66 S. Ct. 154, 90 L. Ed. 95 (1945), and its progeny. Facts were necessary in order to establish whether there were those minimum contacts. That, however, has no relevance to this case.
      Whether an issue is litigated by a motion to dismiss or a motion to strike is not a matter of trivia—the consequences are significant. The granting of the motion to dismiss puts the plaintiff out of court. Practice Book § 145. The granting of the motion to strike allows the party whose pleading has been stricken to file a new pleading with fifteen days. Practice Book § 157.


author: Peters, C. J.

text:
    The Common Fund v. The Town of Fairfield
    (14674)
    Peters, C. J., Borden, Berdon, Palmer and F. X. Hennessy, Js.
    Argued December 1, 1993—
    decision released January 25, 1994

      John F. Fallon, with whom were Richard J. Preminger and Lawrence P. Weisman, for the appellant (plaintiff).

      Roy H. Ervin, with whom, on the brief, was Roy H. Ervin, Jr., for the appellee (defendant).

      George J. Markley filed a brief for the town of West-port as amicus curiae.
   Peters, C. J.

The issue in this property tax appeal is whether a nonprofit corporation that manages investment funds solely for tax exempt schools, colleges and universities is itself eligible for the tax exemption that General Statutes § 12-81 (7) provides for exclusively educational or charitable institutions. The plaintiff, The Common Fund (taxpayer), filed an action in the trial court, pursuant to General Statutes § 12-119, to contest the validity of taxes on its real and personal property that it had paid, under protest, to the defendant, the town of Fairfield (town). Both parties filed motions for summary judgment in the trial court. The trial court granted the town’s motion and the taxpayer appealed to the Appellate Court. We transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c) and now affirm the judgment of the trial court.

The facts relevant to this appeal are undisputed. The taxpayer is a New York nonstock corporation that, since 1971, has pooled the endowment or other investment funds of nonprofit private schools, colleges and universities in order to maximize investment returns for the participating educational institutions. The taxpayer has been able to generate enhanced investment income because the size of the total investment pool affords the taxpayer access to professional investment advice at a cost lower than that which would otherwise be charged to each participating educational institution individually. Only educational institutions benefit from the taxpayer’s investment activities, and the educational institutions use their enhanced investment returns exclusively to further their educational purposes. The educational institutions exercise control over the taxpayer’s operations by selecting its board of trustees, which in turn, through its committees, monitors investment advice received from professional investment advisors.

The taxpayer has total assets approximating $12 billion. The chief executive officer of the taxpayer earns an annual salary of approximately $500,000, and its top eight executives earn annual salaries totaling $1,200,000. In exchange for its investment advice, the taxpayer charges each of the participating educational institutions an annual fee of $1.80 per $1000 of investment.

In 1985, the taxpayer moved its operations from the state of New York to this state. Its principal office and place of business are now located in the defendant town. In 1988, the taxpayer’s real property was assessed for tax purposes at a value of $799,610, and its personal property, consisting primarily of office equipment and computers, was assessed at $280,020. Calculated on the basis of these assessments, the taxpayer’s annual tax bill for 1989 was approximately $8500.

By the enactment of § 501 (f) of the Internal Revenue Code (I.R.C.), the Congress has expressly exempted the taxpayer from federal income taxation by providing that it “shall be treated as an organization organized and operated exclusively for charitable purposes.” The state of Connecticut has granted the taxpayer’s application for a tax exemption permit, so that the taxpayer is not liable for the state sales and use tax.

The trial court concluded that the taxpayer had failed to prove that it is “a charitable institution within the meaning of the exemption statute [§ 12-81 (7)], as one organized and operating exclusively for charitable purposes.” Starting from the principle that a tax exemption is an act of legislative grace that must be strictly construed against the taxpayer, the trial court emphasized the significance of two facts: (1) the taxpayer is a corporate entity distinct from the participating educational institutions that it serves; and (2) the taxpayer charges the participating educational institutions a fee for the services that it renders. Accordingly, the trial court rendered judgment for the town.

In its appeal, the taxpayer continues to assert its claim for a property tax exemption under § 12-81 (7). It emphasizes that: (1) the sole purpose for the creation of the taxpayer was to facilitate collective investment of the endowment and operating funds of the participating educational institutions; (2) in its constitution and its operations, the taxpayer has adhered to this purpose by limiting participation to educational institutions; and (3) the investment returns generated by the taxpayer, with the exception of a fee charged by the taxpayer, are used exclusively to fulfill the educational purposes of the participating educational institutions. It contends that these undisputed facts require the conclusion that it is entitled to a tax exemption in the same manner as if the participating educational institutions had either created a common trust for the advancement of education or had, without any formal joint association, continued the separate management of their own funds.

Resolution of the taxpayer’s claim for a tax exemption depends upon the proper construction of the language of § 12-81 (7). The provision of I.R.C. § 501 (f) that entitles the taxpayer to be treated as a charitable organization applies only “[f]or purposes of this title” and does not, therefore, confer an automatic state tax exemption upon the taxpayer. (Emphasis added.) See Waterbury First Church Housing, Inc. v. Brown, 170 Conn. 556, 558-59, 367 A.2d 1386 (1976). As a matter of .state law, the legislature bears the responsibility for establishing a proper balance between two worthy but competing policy goals: the protection of local tax revenues and the advancement of the charitable goals of corporate adjuncts to educational institutions. To ascertain the intention of the legislature with respect to a tax exemption, we employ three overlapping presumptions. “First, statutes that provide exemptions from taxation are a matter of legislative grace that must be strictly construed against the taxpayer. Second, any ambiguity in the statutory formulation of an exemption must be resolved against the taxpayer. Third, the taxpayer must bear the burden of proving the error in an adverse assessment concerning an exemption.” Plastic Tooling Aids Laboratory, Inc. v. Commissioner of Revenue Services, 213 Conn. 365, 369, 567 A.2d 1218 (1990); United Illuminating Co. v. Groppo, 220 Conn. 749, 752-53, 601 A.2d 1005 (1992); United Church of Christ v. West Hartford, 206 Conn. 711, 718-19, 539 A.2d 523 (1988).

Although § 12-81 (7) establishes an exemption from local property taxes for “a corporation organized exclusively for . . . educational ... or charitable purposes,” this section contains no definition of what constitutes such a corporation. We must, therefore, inquire whether related provisions elsewhere in the General Statutes shed light on the scope of the § 12-81 (7) exemption. “Because the legislature is always presumed to have created a harmonious and consistent body of law, the proper construction of any statute must take into account the mandates of related statutes governing the same general subject matter.” Bart & Bogue Co. v. Slosberg, 202 Conn. 566, 575, 522 A.2d 763 (1987); Felia v. Westport, 214 Conn. 181, 187, 571 A.2d 89 (1990); State v. West, 192 Conn. 488, 494, 472 A.2d 775 (1984); Connecticut Light & Power Co. v. Costle, 179 Conn. 415, 422, 426 A.2d 1324 (1980).

For present purposes, a definition of eligibility for exemption from property taxes under § 12-81 (7) may be inferred from the provisions of General Statutes § 12-89a, which sets out the procedures that govern the pursuit of such claims. The section states: “Any organization claiming exemption from property tax in any municipality in which real or personal property belonging to such organization is situated, which exemption is claimed with respect to all or a portion of such property under the provisions of any of the subdivisions (7), (8), (10), (11), (12), (13), (14), (15), (16), (18), (27), (29), (49) or (58) of section 12-81, may be required upon request, at any time, by the assessor or board of assessors in such municipality to submit evidence of certification from the Internal Revenue Service, effective at the time of such request and in whatever form is then in use under Internal Revenue Service procedure for purposes of such certification, that such organization has been approved for exemption from federal income tax as an exempt organization under Section 501 (c) or 501(d) of the Internal Revenue Code.” (Emphasis added.)

Section 12-89a specifically limits a charitable or educational exemption under § 12-81 (7) to organizations that are exempt under I.R.C. § 501 (c) or (d). The cross reference in § 12-89a to specific subsections of I.R.C. § 501, rather than to I.R.C. § 501 in its entirety, parallels a similar usage found throughout the General Statutes. In numerous other circumstances in which the legislature has granted special exemptions from taxation or regulation to nonprofit organizations, eligibility for the state exemptions has been conditioned, in the first instance, on the nonprofit organizations’ federal exemption under I.R.C. § 501 (c). See, e.g., General Statutes §§ 7-185a (b), 12-412 (29), 12-498 (a) (14) and (15), 36-435Z, and 52-557m. By contrast, our research has uncovered no exemption, anywhere in the General Statutes, that expressly includes this taxpayer, whose federal tax exemption arises not under I.R.C. § 501 (c) but under I.R.C. § 501 (f). The taxpayer therefore does not qualify for an exemption under § 12-81 (7) if the statute is strictly construed.

Strict construction of § 12-81 (7) to bar a charitable exemption for the taxpayer is consistent with its special status under federal law. The taxpayer arguably might have been entitled to a state tax exemption so long as it qualified for a federal exemption under I.R.C. § 501 (c) because it provided its investment services “free of charge or substantially free of charge” to the participating educational institutions. I.R.S. letter T:MS:ED:R:3-MLW (Nov. 3, 1970). The taxpayer’s decision that, in light of its changing economic circumstances, it needed to charge a fee to cover its management expenses undermined its existing federal charitable status. Congressional enactment of I.R.C. §501 (f) did not restore the taxpayer’s status as a § 501 (c) organization but entitled it, as a matter of federal tax law, to be “treated as an organization organized and operated exclusively for charitable purposes.” The taxpayer’s current operations, including the charging of fees to the participating educational institutions, therefore qualify it as a charitable organization under federal law only because of the enactment of 26 U.S.C. § 501 (f). See HCSC-Laundry v. United States, 624 F.2d 428, 436 (3d Cir. 1980), aff'd, 450 U.S. 1, 101 S. Ct. 836, 67 L. Ed. 2d 1 (1981).

In the absence of a special state statute, however, the taxpayer’s current fee structure undermines its claim to a charitable exemption as a matter of state law. As a result of its fee collections, the taxpayer is a self-supporting entity. For the purpose of determining eligibility for a property tax exemption, a Connecticut property owner is not “a corporation organized exclusively for . . . charitable purposes”; General Statutes § 12-81 (7); if it is entirely self-supporting. United Church of Christ v. West Hartford, supra, 719-22; Waterbury First Church Housing, Inc. v. Brown, supra, 562-65. In accordance with these cases, the validity of which the taxpayer does not challenge, the taxpayer is not organized “exclusively for . . . charitable purposes” under § 12-81 (7) even though the investment returns generated by its operations redound to the benefit of the participating educational institutions.

The judgment is affirmed.

In this opinion the other justices concurred.

       General Statutes § 12-81 provides in relevant part: “exemptions. The following-described property shall be exempt from taxation . . .
      “(7) property used for scientific, educational, literary, historical or charitable purposes, exception. Subject to the provisions of sections 12-87 and 12-88, the real property of, or held in trust for, a corporation organized exclusively for scientific, educational, literary, historical or charitable purposes or for two or more such purposes and used exclusively for carrying out one or more of such purposes and the personal property of, or held in trust for, any such corporation, provided (a) any officer, member or employee thereof does not receive or at any future time shall not receive any pecuniary profit from the operations thereof, except reasonable compensation for services in effecting one or more of such purposes or as proper beneficiary of its strictly charitable purposes, and provided (b) in 1965, and quadrennially thereafter, a statement on forms prepared by the secretary of the office of policy and management shall be filed on or before the last day required by law for the filing of assessment returns with the local board of assessors of any town, consolidated town and city or consolidated town and borough, in which any of its property claimed to be exempt is situated. . . .”

       General Statutes § 12-119 provides in relevant part: “remedy when PROPERTY WRONGFULLY assessed. When it is claimed that a tax has been laid on property not taxable in the town or city in whose tax list such property was set, or that a tax laid on property was computed on an assessment which, under all the circumstances, was manifestly excessive and could not have been arrived at except by disregarding the provisions of the statutes for determining the valuation of such property, the owner thereof or any lessee thereof whose lease has been recorded as provided in section 47-19 and who is bound under the terms of his lease to pay real property taxes, prior to the payment of such tax, may, in addition to the other remedies provided by law, make application for relief to the superior court for the judicial district in which such town or city is situated. . . .”

       The taxpayer’s suit as originally filed challenged the validity of assessments on the date of October 1,1988. Subsequent amendments to the pleadings enlarged the taxpayer’s challenge to encompass as well the validity of the assessments on the dates of October 1, 1989, October 1, 1990, and October 1, 1991.

       The parties disagree about whether the salaries paid to the taxpayer’s officers meet the requirement of General Statutes § 12-81 (7) (a) that “any officer, member or employee [of the taxpayer seeking an educational or charitable exemption] does not receive or at any future time shall not receive any pecuniary profit from the operations thereof, except reasonable compensation for services in effecting one or more of such purposes or as proper beneficiary of its strictly charitable purposes . . . .” The trial court made no finding on this issue, which has become moot as a result of our disposition of this appeal.

       By virtue of amendments to the pleadings, the taxpayer has also challenged its taxability with regard to assessments dated October 1,1989, October 1, 1990, and October 1, 1991.

       Title 26 of the United States Code, § 501 (f) provides: “cooperative SERVICE ORGANIZATIONS OF OPERATING EDUCATIONAL ORGANIZATIONS.—
      “For purposes of this title, if an organization is—
      “(1) organized and operated solely to hold, commingle, and collectively invest and reinvest (including arranging for and supervising the performance by independent contractors of investment services related thereto) in stocks and securities, the moneys contributed thereto by each of the members of such organization, and to collect income therefrom and turn over the entire amount thereof, less expenses, to such members,
      “(2) organized and controlled by one or more such members, and
      “(3) comprised solely of members that are organizations described in clause (ii) or (iv) of section 170 (b) (1) (A)—
      “(A) which are exempt from taxation under subsection (a), or
      “(B) the income of which is excluded from taxation under section 115 (a), then such organization shall be treated as an organization organized and operated exclusively for charitable purposes.”

       The taxpayer’s sales and use tax exemption follows from chapter 219 of the General Statutes, entitled “Sales and Use Taxes.” General Statutes § 12-406 et seq. General Statutes § 12-412 (8) is one example of an exemption for charitable and religious organizations that the legislature chose not to limit to organizations that are exempt under I.R.C. § 501 (c) or (d).

       The taxpayer urges that its tax treatment should be analogized to that afforded to the United Way. The record contains no information about the financial relations between the United Way and its beneficiaries, or about the tax status of real or personal property owned by the United Way. In the absence of such a factual record, we are not persuaded that we should assume a functional identity between a corporation that acts as a collecting agency for contributions to charitable organizations and a corporation that acts as an investment advisor of pooled investment and endowment funds for charitable organizations.