Chestnut Realty, Inc. v. Commission on Human Rights and Opportunities

• Decision Date: 02 September 1986
• Docket Number: No. 12699,12699
• Citation: Chestnut Realty, Inc. v. Commission on Human Rights and Opportunities, 514 A.2d 749, 201 Conn. 350 (Conn. 1986)
• Court: Connecticut Supreme Court
• Parties: CHESTNUT REALTY, INC. v. COMMISSION ON HUMAN RIGHTS AND OPPORTUNITIES et al.

Page 749

514 A.2d 749

201 Conn. 350

CHESTNUT REALTY, INC. v. COMMISSION ON HUMAN RIGHTS AND OPPORTUNITIES et al.

No. 12699.

Supreme Court of Connecticut.

Argued June 5, 1986.

Decided Sept. 2, 1986.

Thomas P. Clifford III, Asst. Atty. Gen., with whom were Emily M. Resnik, Law Student Intern, and, on the brief, Joseph I. Lieberman, Atty. Gen., and Robert W. Garvey, Asst. Atty. Gen., New Haven, for appellant (named defendant).

David R. Schaefer, with whom was Hillard N. Einbinder, New Haven, for appellee (plaintiff).

CALLAHAN, Associate Justice.

This is an appeal by the commission on human rights and opportunities (hereinafter CHRO) on behalf of the complainant Kenneth Barboza, from a judgment of the Superior Court, reversing the decision of a CHRO hearing officer. The dispositive issue is the nature of the evidentiary burdens placed on the complainant and respondent in a housing discrimination action. The tribunal found that Chestnut Realty, Inc. (hereinafter Chestnut Realty), had discriminated against Barboza in violation of General Statutes § 53-35(a) ¹ by refusing to sell him an unimproved building lot located in Woodbridge, because of his race. The CHRO appeals the judgment of the Superior Court claiming that the court erred in: (1) exercising jurisdiction over the appeal; (2) finding that the hearing officer had applied an improper standard for determining whether the complainant had made out a prima facie case; (3) finding that the hearing officer had shifted the burden of proof improperly to the respondent to show a legitimate nondiscriminatory purpose for refusing to sell to the complainant; and (4) measuring the complainant's damages. We conclude that the trial court erred in finding that the complainant had not made out a prima facie case of discrimination. We find no error on the CHRO's other claims.

After conducting a formal hearing, the hearing officer found the following facts. Chestnut Realty was a Connecticut corporation wholly owned by Marvin and Norma Schaefer. The corporation was engaged in the business of buying, selling, and developing real estate. Chestnut Realty in September, 1977, was the owner of lot 7 located in the subdivision known as Chestnut Lane Estates in Woodbridge, Connecticut. Marvin Schaefer constructed a house on lot 5 within this same subdivision, and listed it with a real estate agent on April 19, 1972. Prior to January, 1973, the Schaefers had been living in a house on Sunbrook Road in Woodbridge. In January, 1973, when the Schaefers still had not sold the house on lot 5, they sold their home on Sunbrook Road in Woodbridge and moved into the house on lot 5. The house on lot 5 remained on the market until March, 1981. It was the Schaefers' plan to build a smaller house on lot 7 within the subdivision as soon as they found a buyer for their home on lot 5. As of September 11, 1977, the Schaefers had not received an acceptable offer on lot 5.

Shortly before September 11, 1977, Kenneth Arrington, a real estate agent and the brother-in-law of the complainant, Kenneth Barboza, telephoned Schaefer concerning the availability of residential building lots within the Chestnut Lane Estates subdivision. Schaefer said that he had some lots for sale and an appointment was arranged to view the lots on September 11, 1977. On that day, the complainant and his wife were told by Schaefer that both lots 7 and 8 were for sale. During the meeting, the complainant viewed both lots but spent the majority of the time discussing the solar home capabilities of lot 7.

Following the meeting, Schaefer had a discussion with his wife concerning the sale of lot 7 during which Norma Schaefer reiterated her desire to build a home for themselves on the lot. The complainant's agent contacted Schaefer on September 12, 1977, to inform him that the complainant intended to make an offer on lot 7. On the same day two or three couples came to view the house on lot 5; however, no offers to purchase were forthcoming as a result of these visits. On September 13, 1977, the complainant's agent called and spoke with Norma Schaefer. He told her that the complainant had accepted the asking price on lot 7 and that he wished to place a deposit on lot 7. Norma Schaefer replied that the lot was no longer for sale. On September 16, 1977, the complainant, who is black, filed a complaint with CHRO alleging a violation of the Public Accommodations Act, General Statutes (Rev. to 1977) § 53-35(a) (now General Statutes § 46a-64). The title to lot 7 was subsequently transferred from Chestnut Realty to the Schaefers on June 14, 1979, for $40,000.

On the basis of these and other facts, the hearing officer concluded that the respondent had discriminated against the complainant because of his race in violation of General Statutes (Rev. to 1977) § 53-35(a). On April 20, 1983, the tribunal ordered the defendant to cease and desist in its violations of § 53-35(a); to pay the complainant actual and compensatory damages; and to offer for sale a lot within the subdivision known as Chestnut Lane Estates similar to lot 7 at the price for which lot 7 was offered in September, 1977.

I

Before we address the CHRO's claim concerning the evidentiary burdens in a housing discrimination case, we must dispose of its claim that the Superior Court lacked jurisdiction over the appeal from the CHRO's decision. First, the CHRO argues that Chestnut Realty improperly commenced its appeal by using a Form 103.1 (JD-CV-1) writ of summons, which is prohibited by Practice Book § 49. ² Practice Book § 49 was amended in 1978 to prohibit the use of Form 103.1 in, inter alia, administrative appeals. The court procedure for taking an appeal from an administrative decision is by complaint and citation as set forth in Practice Book Form 204.7. The motion to dismiss on this ground was denied by the Superior Court, Celotto, J. We conclude, under the circumstances of this case, that Chestnut Realty's lack of compliance with Practice Book § 49 was not fatal to its appeal from the CHRO's decision.

We note at the outset that appeals from administrative agencies exist only under statutory authority. Farricielli v. Personnel Appeal Board, 186 Conn. 198, 201, 440 A.2d 286 (1982). "A statutory right to appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created." Id. We have recognized, therefore, that the absence of a citation, signed by a competent authority, as required by General Statutes § 4-183(b), renders an administrative appeal fatally defective. Village Creek Homeowners Assn. v. Public Utilities Commission, 148 Conn. 336, 338-40, 170 A.2d 732 (1961). We have also held mandatory the provisions of the Uniform Administrative Procedure Act, General Statutes § 4-166 et seq., (UAPA), that impose time limitations; Zoning Board of Appeals v. Freedom of Information Commission, 198 Conn. 498, 503, 503 A.2d 1161 (1986); Royce v. Freedom of Information Commission, 177 Conn. 584, 587, 418 A.2d 939 (1979); as well as the venue requirements of the UAPA: Farricielli v. Personnel Appeal Board, supra; and that lack of compliance with these provisions renders an appeal subject to dismissal. These decisions focused on whether the provisions in question were jurisdictional and thus essential to the validity of the appeal. Zoning Board of Appeals v. Freedom of Information Commission, supra; Farricielli v. Personnel Appeal Board, supra, 186 Conn. 207, 440 A.2d 286.

The use of an improper form to commence an appeal, however, presents a different situation. As long as it contains a proper citation, signed by a competent authority, its use does not call into question the jurisdiction of the Superior Court to entertain the appeal. See General Statutes § 4-183(b). Practice Book Form 204.7 merely establishes a method of service upon the administrative agency in a manner different from other civil actions, to wit, by registered or certified mail. See Public Acts 1979, No. 79-163. If the form, as it did in this case, clearly apprises all concerned that a lawsuit is being instituted, and contains notice of the return date, and the requirement for filing an appearance, and also directs a competent authority to summon the defendant, then the policy of giving notice to the defendant of the nature of the proceedings has been served. Cf. Village Creek Homeowners Assn. v. Public Utilities Commission, supra. Absent an affirmative showing of prejudice by the defendant; see General Statutes § 52-123; Village Creek Homeowners Assn. v. Public Utilities Commission, supra, 148 Conn. 340, 170 A.2d 732; United States Envelope Co. v. Vernon, 72 Conn. 329, 44 A. 478 (1899); we conclude that the mistaken use of Form 103.1 (JD-CV-1) does not warrant the dismissal of an administrative appeal.

Next, the CHRO claims that the appeal should have been dismissed because Chestnut Realty failed to name and serve the hearing officer as the tribunal pursuant to General Statutes (Rev. to 1983) § 4-183(b). ³ We disagree.

General Statutes (Rev. to 1983) § 4-183(b) provides that all "[c]opies of the petition [of appeal] shall be served upon the agency and all parties of record within thirty days after mailing of such notice or, if a rehearing is requested, thirty days after the decision thereon, except that service upon an agency may be made by mailing a copy of the petition by registered or certified mail, postage prepaid, to the office of the commissioner of the agency or to the office of the attorney general in Hartford." (Emphasis added.) The Appellate Court in Catholic Family & Community Services v. Commission on Human Rights & Opportunities, 3 Conn.App. 464, 489 A.2d 408 (1985), specifically held that a hearing examiner appointed by the CHRO was not an "agency" under General Statutes § 4-183(b) and therefore did not have to be served with the plaintiff's petition. Id., 466-68, 489 A.2d 408; see Board of Education v. Department of Education, 198 Conn....