text:
    Edward Patrocinio v. John C. Yalanis et al. Murray Dressler et al. v. John C. Yalanis et al.
    (2201)
    (2202)
    Dupont, C.P.J., Borden and Spallone, Js.
    Argued February 13
    decision released May 14, 1985

      Richard P. Weinstein, for the appellants (plaintiffs).

      Louis P. Kocsis, for the appellees (defendants).
   Borden, J.

These are appeals from the judgments in two actions for amounts due on promissory notes. The trial court consolidated the actions for trial and appeal because they arise from the same set of facts.

In 1978, the defendant John Yalanis borrowed money from the plaintiffs and used it to start an electronics distributorship known as P.J.’s, Inc. At that time, the defendant owned an undivided one half interest in his family home. By a quitclaim deed dated January 29, 1980, the defendant conveyed his interest in this property to his wife, Elaine Yalanis. The defendant received no monetary consideration for this transfer. At the time of the transfer, his only other asset was 51 percent of the shares of stock in P.J.’s, Inc. He continued to pay off the debts to the plaintiffs in a timely fashion after the transfer. He ceased making payments in July, 1981. P.J.’s, Inc., which had had some financial difficulties, stopped doing business on September 30, 1981, after its single supplier of merchandise was unable adequately to supply its needs.

The plaintiffs brought suit to recover the amounts due on the promissory notes, and to set aside the transfer of the defendant’s interest in the family home as a fraudulent conveyance pursuant to General Statutes § 52-552. The plaintiffs also sought an accounting of the assets of the corporation. The trial court rendered judgments for the plaintiffs against all three defendants for the amounts claimed under the notes, but found for the defendants on the counts alleging fraudulent transfer. The court refused to require an accounting of the corporate assets. The plaintiffs appeal from the judgments in favor of the defendants on the third and fourth counts of the complaint, which contained the allegations of fraudulent transfer. We find no error.

Under the fraudulent conveyance statute; General Statutes § 52-552; “[a] person to whom the grantor was indebted and who wishes to avoid the conveyance has the burden of showing either (1) that the conveyance was made without substantial consideration and rendered the transferor unable to meet his obligation or (2) that the conveyance was made with a fraudulent intent in which the grantee participated. Zapolsky v. Sacks, 191 Conn. 194, 200, 464 A.2d 30 (1983); Denison Development Co. v. Gunther, 189 Conn. 333, 335, 455 A.2d 1340 (1983); Molitor v. Molitor, 184 Conn. 530, 535-36, 440 A.2d 215 (1981).” Bizzoco v. Chinitz, 193 Conn. 304, 312, 476 A.2d 572 (1984). These two tests refer to constructive fraud and actual fraud, respectively. The issues presented by the plaintiffs on appeal revolve around these basic theories of fraudulent conveyance, both of which they alleged in their complaint.

We first consider the plaintiffs’ argument that the court used the wrong standard of proof in determining if fraud existed. “Connecticut law has firmly established that fraud must be proven by a standard more exacting than that of a fair preponderance of the evidence. J. Frederick Scholes Agency v. Mitchell, [191 Conn. 353, 358, 464 A.2d 795 (1983)]. The standard of proof for some cases such as those involving the acquisition of title by adverse possession, the termination of parental rights, libel, fraud, or reformation of a deed or contract is that of clear and convincing proof, a standard greater than proof by a fair preponderance of the evidence but less than proof beyond a reasonable doubt.” (Emphasis added.) Kavarco v. T.J.E., Inc., 2 Conn. App. 294, 296, 478 A.2d 257 (1984). “Such a burden of persuasion requires a reasonable belief that ‘the facts asserted are highly probably true [or] that the probability that they are true ... is substantially greater than the probability that they are false ....’” Clark v. Drska, 1 Conn. App. 481, 487, 473 A.2d 325 (1984).

The trial court properly used this intermediate standard of proof. At the outset of its oral decision on the claims of fraudulent conveyance, the court stated that “any claim of fraud requires a very high standard of proof” and that this standard was “higher than a mere preponderance of the evidence.” While the court did not state specifically that the standard it was applying was that of clear and convincing proof, possibly for fear of getting caught in the “quagmire of descriptive words for [this] quantum of proof”; id., 487; it sufficiently indicated to the parties that it was applying the required higher standard of proof. Cf. Kavarco v. T.J.E., Inc., supra, 297-98. The trial court then concluded that the plaintiffs “did not sustain the high burden of proof [for] establishing fraud.” The court did not err; it clearly applied a standard of proof higher than the normal civil standard of preponderance of the evidence but lower than the criminal standard of beyond a reasonable doubt.

The plaintiffs next argument arises from the plaintiffs allegations of constructive fraud, in particular the claim that the transfer by the defendant rendered him unable to meet his obligation. See Bizzoco v. Chinitz, supra. The plaintiffs argue that the correct measure of insolvency used to determine whether the debtor was able to meet his obligation is a balance sheet test. Essentially, they urge that the proper inquiry is whether, after the transfer, the value of the debtor’s liabilities exceeds the value of his assets.

The court used a narrower measure of insolvency, an income stream test. Rather than looking abstractly at the liabilities and assets of the debtor, the court inquired into whether the debtor in actuality was able to meet his then existing obligations as they became due.

Many standards exist to determine insolvency. See, e.g., Collier on Bankruptcy (15th Ed.) § 547.26; Glenn, Fraudulent Conveyances and Preferences (Rev. Ed. 1940) § 272; 37 C.J.S., Fraudulent Conveyances § 106. The Uniform Fraudulent Conveyance Act was drafted, in part, because of “the absence of any well recognized, definite conception of insolvency.” Uniform Fraudulent Conveyance Act (1978), Commissioners’ Prefatory Note, p. 162. Connecticut has not adopted the Uniform Fraudulent Conveyance Act, however. Molitor v. Molitor, supra, 535. No definite measure of insolvency has been adopted by the legislature or courts in Connecticut in the context of fraudulent conveyances. The trial court, therefore, was not bound by law to apply any particular test.

The trial court properly applied the income stream test in this case. This measure of insolvency was the common law measure; Nadler, The Law of Bankruptcy (2d Ed.) § 28; which stemmed from the English statute on which the Connecticut law is based. Molitor v. Molitor, supra; Bigelow, Fraudulent Conveyances (Rev. Ed. 1911), pp. 720-21. Since General Statutes § 52-552 codifies the common law of fraudulent conveyances; Molitor v. Molitor, supra; the trial court properly applied the common law measure of insolvency.

The trend of recent Connecticut decisions involving fraudulent conveyances also indicates the propriety of the standard used by the trial court. For example, the Supreme Court stated in Molitor v. Molitor, supra, 536, that “[a] person is insolvent for these purposes when he is unable to pay his then-existing debts.” The court then looked not only at the debtor’s financial affidavits to determine the net value of his assets and liabilities, but also to the termination of the debtor’s employment and to the fact “that his substantial income from that source would shortly cease, thus impairing his future ability to make regular payments to his other creditors.” Id., 537. In Bizzoco v. Chinitz, supra, 312-13, the Supreme Court stated not only that the trial court in that case could reasonably have found that the debtor had “little or no net value” but that it was entitled to determine whether the value of the defendant’s stock in a closely held corporation was enough “to enable the defendant to pay his continuing debt to the plaintiff . . . . ” Our courts, therefore, do not adhere rigidly to any single measure of insolvency, but use both the balance sheet test, the income stream test, or a combination of both.

The trial court was required only to select an appropriate measure of insolvency under the facts and circumstances of the case before it and apply that measure consistently and equitably. If so applied, this court will not nullify the application of that standard unless the facts do not support it or the trial court abused its discretion.

In this case, where no evidence was presented of the defendant’s net value, the trial court was justified in applying the income stream test. A review of the record indicates that this test was consistently and equitably applied in 4etermining that the transfer did not render the defendant insolvent. The defendant testified that he was in good financial shape at the time of the transfer, that he had a functioning business and was able to pay his existing debts. In fact, he continued to pay the debts owed to the plaintiffs for seventeen months after the transfer. The defendant’s federal income tax returns for 1979 and 1980 were in evidence and supported Ms testimony. The trial court did not abuse its discretion in using the narrower measure of insolvency or err in determining that, as a consequence of the transfer of his interest in the home to his wife, the defendant was not rendered insolvent.

The plaintiffs’ final claim challenges the finding that no actual fraud was proven. The court stated that it believed the defendant and that he was “completely truthful in almost everything that he said.” The court therefore found that the defendant had several motivations for making the transfer but did not intend to defraud his then existing creditors. We cannot say that this finding was clearly erroneous. Furthermore, the record is devoid of any evidence that the grantee of the transfer, the defendant’s wife, participated in the transfer with any intent to defraud, an element which is required in order to prove a claim of fraudulent conveyance based on actual fraud. Bizzoco v. Chinitz, supra. This claim must fail for this reason as well.

There is no error in either appeal.

In this opinion the other judges concurred.

       The defendants in this action were John Yalanis, his wife, Elaine Yalanis, and P.J.’s, Inc. For purposes of this opinion, however, John Yalanis will be referred to as the defendant, although the decision applies to all the defendants.

       General Statutes § 52-552 provides: “All fraudulent conveyances, suits, judgments, executions or contracts, made or contrived with intent to avoid any debt or duty belonging to others, shall, notwithstanding any pretended consideration therefor, be void as against those persons only, their heirs, executors, administrators or assigns, to whom such debt or duty belongs.”

       The plaintiffs, in their brief, also challenged the trial court’s decision on the second count, which requested an accounting of the corporate assets, but withdrew this claim at oral argument.


source: Caselaw Access Project

author: Spallone, J.

license: Public Domain

text:
    Deborah Sheiman et al. v. Lafayette Bank and Trust Company et al.
    (2553)
    Hull, Spallone and Daly, Js.

      Argued February 13
    decision released May 14, 1985

      Edward T. Dodd, Jr., with whom, on the brief, was Terence D. Mariani, for the appellants (plaintiffs).

      Stephen R. Griffin, for the appellee (defendant First Federal Savings and Loan Association of Waterbury).
   Spallone, J.

The plaintiffs, Deborah Sheiman and Elissa See, are the granddaughters of Estelle S. Dubow, who died intestate on November 16,1980. The plaintiffs’ mother, who was the daughter of Dubow, predeceased Dubow. On March 28,1980, a check in the amount of $74,784.85 had been issued to Dubow on the account of Stuart M. Sheiman, Trustee Clients' Fund, at the defendant Lafayette Bank and Trust Company (Lafayette). On March 31, 1980, another daughter of Dubow, Rosalind Wilion, presented the unendorsed check to the defendant First Federal Savings and Loan Association (First Federal), and First Federal collected the check from Lafayette.

With the proceeds of the check, Wilion purchased certificates of deposit from First Federal, payable to either herself or Dubow. Upon Dubow’s death, title to the certificates passed to Wilion. The record is silent as to the circumstances under which Wilion obtained the check from Dubow.

On October 18, 1982, the plaintiffs brought this action. In their complaint, they allege that as heirs-at-law of Dubow, they were each entitled to a one-sixth share of Dubow’s estate; that a $74,784.85 check was issued to Dubow as payee; that the check was presented by Wilion to First Federal, without endorsement by Dubow; that First Federal issued certificates of deposit payable to Wilion or Dubow; that title to the certificates passed to Wilion upon Dubow’s death; and that, as a result of the actions of both First Federal and Lafayette in negotiating the check, the plaintiffs’ shares of Dubow’s estate were significantly diminished. In their first count, the plaintiffs allege that their shares in Dubow’s estate were diminished because the defendants failed to exercise ordinary care in handling the check; in their second count, they allege that they suffered financial losses and emotional distress because First Federal failed to act in good faith; in their third count, they allege that they suffered losses because both defendants acted negligently in processing the check; and in their fourth count, they allege that they incurred losses because both defendants acted recklessly and wantonly in processing the check.

Upon motion by First Federal, the plaintiffs revised their complaint to disclose that counts one and two were based on General Statutes § 42a-4-103 and that the alleged negligent, reckless and wanton acts in counts three and four stemmed, in essence, from the defendants’ failure to determine whether Dubow indeed wished to have Wilion named as joint owner of the certificates of deposit.

First Federal thereafter moved to strike the complaint in its entirety on the ground that it failed to state a claim upon which relief could be granted. The trial court granted the motion to strike and rendered judgment in favor of First Federal, from which the plaintiffs now appeal.

In reviewing the granting of a motion to strike, we view the facts to be those which are alleged in the complaint and construe them in a manner most favorable to the pleader. Amodio v. Cunningham, 182 Conn. 80, 82, 438 A.2d 6 (1980). All well pleaded facts are admitted and if facts which are provable under the allegations would support a cause of action or a defense, the motion to strike must fail. Greene v. Metals Selling Corporation, 3 Conn. App. 40, 41, 484 A.2d 478 (1984). Like its predecessor, the demurrer, a motion to strike does not admit legal conclusions or the truth or accuracy of opinions stated in the pleading at which the motion is directed. Id., 42; 1 Stephenson, Conn. Civ. Proc. § 116 (c).

A check, which is executed and delivered, is a contract under which the drawer contracts with the payee that the bank will pay the payee the amount designated upon presentation. Bailey v. Polote, 152 Ga. App. 255, 256, 262 S.E.2d 551 (1979). In actions on bills and notes, proper and necessary parties plaintiff are determined by the statutes and rules applicable generally to contracts, except as the provisions of the Uniform Commercial Code may govern in case of any conflict with such statutes or rules. 12 Am. Jur. 2d, Bills and Notes § 1068. “In all jurisdictions the holder of a negotiable instrument may maintain action thereon in his own name. He does not have to be the owner or the real party in interest. Conversely, a person having no interest in an instrument as holder or owner may not maintain an action thereon except with the assent of the owner.” (Footnotes omitted.) Id.

A contract, whether it be express or implied, depends on an actual agreement. Therrien v. Safeguard Mfg. Co., 180 Conn. 91, 94, 429 A.2d 808 (1980). The check which Wilion presented to First Federal, standing alone, reveals no contractual obligation running between First Federal and the plaintiffs. The plaintiffs, moreover, have not alleged that First Federal agreed, by words, action or conduct, to undertake any form of contractual commitment to them independent of the check. See id., 95.

Under General Statutes § 42a-4-103, “banks come under the general obligations of the use of good faith and the exercise of ordinary care” in the handling of negotiable instruments. U.C.C. comment 4, Conn. Gen. Stat. Ann. § 42a-4-103 (West 1960). General Statutes § 42a-4-103 (5) provides a rule for determining damages for the failure to exercise ordinary care. The damages rule of that subsection does not become operative, however, until the “liability of the bank and some loss to the customer or owner [has been] established.” (Emphasis added.) U.C.C. comment 6, Conn. Gen. Stat. Ann. § 42a-4-103 (West 1960).

The plaintiffs have alleged no facts in counts one or two of their complaint which would admit to proof of the interest of either as an owner of the instrument or as a customer of First Federal. In our review, we may not look beyond the information which the complaint itself affords. McAnerney v. McAnerney, 165 Conn. 277, 282, 334 A.2d 437 (1973). Because the plaintiffs have not alleged that any relationship contemplated by General Statutes § 42a-4-103 existed between themselves and First Federal, we conclude that the trial court was correct in finding that they had no rights in the instrument and no standing to sue thereon. See Bank of Waverly v. City Bank & Trust Co., 600 S.W. 2d 630, 632 (Mo. App. 1980).

Counts three and four of the plaintiffs’ complaint sound in tort. An action based on tort theory is separate and distinct from any claim based on the instrument. Yahn & McDonnell v. Farmers Bank of State of Delaware, 708 F.2d 104,113 (3d Cir. 1983). Therefore, the plaintiffs’ lack of standing to sue on the check does not dispose of their counts alleging negligence and reckless and wanton misconduct. “[T]he UCC does not displace the common law of tort as its affects parties in their commercial dealings except insofar as reliance on the common law would thwart the purposes of the Code.” New Jersey Bank, N. A. v. Bradford Securities Operations, Inc., 690 F.2d 339, 346 (3d Cir. 1982).

In order to recover in a tort case, the plaintiff must show that the defendant has breached a legal duty owed to him. Wright & FitzGerald, Connecticut Law of Torts (2d Ed.) § 2. “To sustain a cause of action [in negligence], the court must determine whether the defendant owed a duty to the [plaintiff]; Cobum v. Lenox Homes, Inc., 186 Conn. 370, 375, 441 A.2d 620 (1982); and the applicable standard of care. Fidelity & Casualty Co. v. Constitution National Bank, 167 Conn. 478, 482, 356 A.2d 117 (1975). The existence of a duty is a question of law. Nolan v. The New York, New Haven & Hartford Railroad Co., 53 Conn. 461, 471, 4 A. 106 (1885) .... Only if such a duty is found to exist does the trier of fact then determine whether the defendant violated that duty in the particular situation at hand. See Green, ‘The Duty Problem in Negligence Cases,’ 28 Colum. L. Rev. 1014, 1029-30 (1928).” Shore v. Stonington, 187 Conn. 147, 151-52, 444 A.2d 1379 (1982).

The requisite duty to use care may stem from a contract, from a statute, or from circumstances under which a reasonable person would anticipate that harm of the general nature of that suffered was likely to result. Coburn v. Lenox Homes, Inc., supra, 375. Negligence cannot be predicated upon the failure to perform an act which the actor was under no duty or obligation to perform. Here, the plaintiffs have failed to allege any contract, statute or circumstances which would give rise to a duty owed by First Federal which would support an action in negligence. See McAnerney v. McAnerney, supra, 284.

The plaintiffs’ fourth count is couched in terms of wanton and reckless behavior. There is a wide difference between negligence and reckless or wanton misconduct. Brock v. Waldron, 127 Conn. 79, 81, 14 A.2d 713 (1940). “ ‘Recklessness is a state of consciousness with reference to the consequences of one’s acts. Commonwealth v. Pierce, 138 Mass. 165, 175 [1884]. It “requires a conscious choice of a course of action either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose this danger to any reasonable man,” and the actor “must recognize that his conduct involves a risk substantially greater . . . than that which is necessary to make his conduct negligent.” Restatement, 2 Torts, § 500, comment g; Rogers v. Doody, 119 Conn. 532, 535, 178 Atl. 51 [1935]. It is “more than negligence, more than gross negligence.” Bordonaro v. Senk, 109 Conn. 428, 431, 147 Atl. 136 [1929].’ ” Begley v. Kohl & Madden Printing Ink Co., 157 Conn. 445, 450-51, 254 A.2d 907 (1969).

The mere use of the words “reckless” and “wanton” is insufficient to raise an actionable claim of reckless and wanton misconduct. Kostiuk v. Queally, 159 Conn. 91, 94, 267 A.2d 452 (1970). To be legally sufficient, a count based on reckless and wanton misconduct must, like an action in negligence, allege some duty running from the defendant to the plaintiff.

In their fourth count, as in their third, the plaintiffs have failed to allege any facts from which such a duty may be proven. Their claims of negligent, wanton and reckless conduct are mere conclusions of law, and, in the absence of sufficient alleged facts to support them, are subject to a motion to strike. See Cavallo v. Derby Savings Bank, 188 Conn. 281, 285, 449 A.2d 986 (1982).

There is no error.

In this opinion the other judges concurred.

       Dubow’s estate was settled on September 15, 1982.

       Summary judgment was subsequently rendered in favor of Lafayette. The plaintiffs do not appeal from the judgment as to Lafayette, but only from the judgment rendered on First Federal’s motion to strike.

       “Customer” is defined in General Statutes § 42a-4-104 (1) (e) as “any person having an account with a bank or for whom a bank has agreed to collect items -. . . .”


text:
    Montanaro Brothers Builders, Inc., et al. v. Maurice H. Snow et al.
    (2865)
    Dupont, C.P.J., Borden and Spallone, Js.

      Argued February 13
    decision released May 14, 1985

      Bernard Green, with whom, on the brief, was Daniel Green, for the appellants (defendants).

      Bourke G. Spellacy, with whom, on the brief, was Daniel Shepro, for the appellees (plaintiffs).
   Spallone, J.

The defendants have appealed from a judgment of the trial court ordering the return of $16,000 paid to them by the plaintiffs pursuant to a purported agreement for an option to purchase real estate.

This action was initiated in 1978 for specific performance of the alleged agreement. The case was tried in 1981, and the trial court, Geen, J., found that the option agreement was void and unenforceable under the statute of frauds. While that decision was upheld on appeal; Montanaro Bros. Builders, Inc. v. Snow, 190 Conn. 481, 460 A.2d 1297 (1983) (Montanaro I); the Supreme Court “[i]n the interests of justice” remanded the case “so that the plaintiffs may have an opportunity to establish the extent to which the defendants have been enriched by their receipt of $16,000.” Id., 490. The court expressed no opinion on whether there had been any unjust enrichment. Id. On remand, the trial court, after an evidentiary hearing, held that the defendants had been unjustly enriched in the amount of $16,000. This appeal followed.

The facts underlying the creation of the purported agreement are set forth in Montanaro I, and need not be repeated here. It is pertinent to note, however, that pursuant to the purported agreement the plaintiffs paid the defendants $15,000 for a twelve month option to purchase real estate owned by the defendants. At the end of the twelve month period, the plaintiffs sent the defendants’ attorney a check for $1000 to extend the option for two additional months. These are the funds that are now in dispute.

The first claim of error raised by the defendants concerns the trial court’s action upon their motion for a special finding. Special findings by the trial court may be requested under General Statutes § 52-226. The statute provides, in pertinent part, that “[i]n any trial to a court, except a trial at a small claims session, the court shall find, upon written motion of either party made within fourteen days after the entry of judgment, the facts upon which its judgment is founded, and make the finding a part of the record.” A special finding is an incident of the judgment. Faiola v. Faiola, 156 Conn. 12, 15, 238 A.2d 405 (1968). If a finding under General Statutes § 52-226 is insufficient to support the judgment, the error is considered to be upon the record; Carvette v. Fidelity & Deposit Co., 152 Conn. 697, 698, 204 A.2d 409 (1964); and thus subject to appellate review. Tower v. Camp, 103 Conn. 41, 45, 130 A. 86 (1925).

In this case, the defendants requested that the trial court make seventeen special findings which they claimed were material to the issues tried. The trial court denied the motion, and the defendants claim that the denial was improper. In denying the motion, the court noted that General Statutes § 52-226 applies specifically to actions for legal relief. The court correctly reasoned that since the relief which the plaintiffs sought was based on the theory of unjust enrichment, their action was one for equitable relief and, therefore, the statute did not apply. Tilden v. Century Realty Co., 112 Conn. 439, 441, 152 A. 707 (1930). The court, however, proceeded to examine the requested findings and con-eluded that none of them furthered the purpose of detailing “the material facts upon which the judgment is based.” Practice Book § 333. It found that twelve of the requested findings related back to the factual underpinnings of Montanaro I. Of the remaining five, the trial court found that one was irrelevant, that one was a matter of court record, and that three did not rest upon credible evidence.

We are constrained, at this point, to note that the defendants’ claim of error based on the court’s action upon their motion for special findings is not properly before us. The essence of the defendants’ argument is that the trial court’s denial of their motion has rendered the record unclear for purposes of this appeal. This claim ignores the intent of General Statutes § 52-226. “The purpose of a special finding is to place upon the record the material facts upon which the judgment is based; other matters have no place in it and can only be presented in a finding made for the purpose of an appeal.” Practice Book § 333. A party whose motion for a special finding under General Statutes § 52-226 has been denied may not assign that denial as error. Davis v. P. Gambardella & Son Cheese Corporation, 147 Conn. 365, 367 n.1, 161 A.2d 3 (1960).

Here, the trial court prepared a written memorandum of decision in accordance with Practice Book § 3060B, which provides, in part, that “when rendering judgments in trials to the court, the court shall, either orally or in writing, state its decision on the issues in the case and, if there are factual issues, the factual basis of its decision.” Such memoranda have replaced findings made for the purpose of appeal.

In arguing that the court’s action upon their motion has left the record inadequate for appellate review, the defendants do so in apparent disregard of the avenues of relief provided by our rules of practice which they might have pursued at an early stage of this appeal. The defendants could have sought an order to complete the record under Practice Book § 3096 or rectification for purposes of appeal under Practice Book § 3082. Generally, one who seeks further articulation of the factual basis of the trial court’s decision should file a motion with the trial court under Practice Book § 3082 “setting forth the special factual issues he seeks to have resolved . . . . ” Pandolphe’s Auto Parts, Inc. v. Manchester, 181'Conn. 217, 222 n.5, 435 A.2d 24 (1980). If a party is aggrieved by the action of the trial court on such a motion, he may seek review of that action by motion to this court under Practice Book § 3108. Practice Book § 3082; see Maltbie, Conn. App. Proc. §281.

The defendants have raised five additional claims of error. Two of these claims refer back to Montanaro I, and were disposed of in the underlying adjudication that the option agreement was unenforceable under the statute of frauds. It is well established “that the opinion of an appellate court, so far as it is applicable, establishes the law of the case upon a retrial, and is equally obligatory upon the parties to the action and upon the trial court. Laurel, Inc. v. Commissioner of Transportation, 173 Conn. 220, 222, 377 A.2d 296 (1977); Gray v. Mossman, 91 Conn. 430, 434, 99 A. 1062 (1917); 5 Am. Jim. 2d, Appeal and Error § 744.” Dacey v. Connecticut Bar Assn., 184 Conn. 21, 23, 441 A.2d 49 (1981). Since the Supreme Court determined that no agreement existed between the parties in Montanaro I, that determination was the law of the case upon a retrial. See Manchester Modes, Inc. v. Ellis, 2 Conn. App. 261, 262, 477 A.2d 164 (1984). Consequently, the defendants’ claims that could be sustained only upon a finding that the option agreement was viable do not warrant our consideration. The defendants, “[hjaving previously relied upon the unenforceability of the option agreement to defeat the plaintiffs’ claim for specific performance . . . cannot now invoke the provisions of that unenforceable agreement as an absolute bar to the plaintiffs’ claim of unjust enrichment.” Montanaro I, supra, 489.

In connection with the trial court’s finding of unjust enrichment, the defendants claim that the trial court misplaced the burden of proof by requiring them to prove that they were not unjustly enriched through their receipt of the $16,000. Although there was colloquoy before the court as to where the burden of proof properly lay, our review of the record discloses that the defendants voluntarily went forward with their evidence and never raised any objection to the allocation of the burden of proof. An issue not raised in the trial court will not generally be considered on appeal. Practice Book § 3063; Mazur v. Blum, 184 Conn. 116, 120, 441 A.2d 65 (1981). The only circumstances under which we will consider such an issue require either that a new, unforeseeable constitutional right has arisen since trial or that the record indicates a clear deprivation of a fundamental constitutional right and a fair trial. Mazur v. Blum, supra, 120-21 n.5; State v. Evans, 165 Conn. 61, 69-70, 327 A.2d 576 (1973). Neither of those circumstances exists in this case.

We note, moreover, that although the trial court did not specifically address the allocation of the burden of proof in its memorandum of decision, it indicated its recognition of the fact that the burden fell upon the plaintiffs by citing Montanaro I. See Capozzi v. Luciano, 174 Conn. 170, 173, 384 A.2d 359 (1978). In Montanaro I, the Supreme Court directed that the case be remanded “so that the plaintiffs may have an opportunity to establish the extent to which the defendants have been enriched by their receipt of $16,000.” (Emphasis added.) Montanaro I, supra, 490. On remand, a trial court must comply strictly with the mandate of the appellate court according to its true intent and meaning. Wendland v. Ridgefield Construction Services, Inc., 190 Conn. 791, 795, 462 A.2d 1043 (1983).

The defendants next claim that the trial court erred in concluding that they were unjustly enriched. “Unjust enrichment is a legal doctrine to be applied when no remedy is available pursuant to a contract. 5 Williston, Contracts (Rev. Ed.) § 1479. In order for the plaintiff to recover under the the doctrine, it must be shown that the defendants were benefitted, that the benefit was unjust in that it was not paid for by the defendants, and that the failure of payment operated to the detriment of the plaintiff. Monarch Accounting Supplies, Inc. v. Prezioso, 170 Conn. 659, 665-66, 368 A.2d 6 (1976); Providence Electric Co. v. Sutton Place, Inc., 161 Conn. 242, 246, 287 A.2d379(1971).”A&C Corporation v. Pernaselci, 2 Conn. App. 264, 265, 477 A.2d 166 (1984).

Although a claim in restitution is legal in form, it is equitable in nature and the trial court may accordingly balance the equities and take into account “a variety of competing principles to determine whether the defendant has been unjustly enriched.” Vines v. Orchard Hills, Inc., 181 Conn. 501, 507, 435 A.2d 1022 (1980). To prove unjust enrichment, the purchaser must show that the loss sustained by the seller is less than the moneys received from the purchaser. Id., 510. Basically, the purchaser must show that the seller sustained a net gain. Id.

The balancing of equities is a matter which falls within the discretion of the trial court. Kakalik v. Bernardo, 184 Conn. 386, 395, 439 A.2d 1016 (1981). For that reason, equitable remedies are not bound by formula but are molded to the needs of justice. Hebrew University Assn. v. Nye, 26 Conn. Sup. 342, 348-49, 223 A.2d 397 (1966). “Discretion means ‘a legal discretion to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice.’ ” Hammerberg v. Leinert, 132 Conn. 596, 604-605, 46 A.2d 420 (1946); see Buckley v. Warden, 181 Conn. 286, 290, 435 A.2d 348 (1980).

Where the exercise of judicial discretion is called upon, its exercise will not ordinarily be interfered with on appeal. Sturman v. Socha, 191 Conn. 1, 7, 463 A.2d 527 (1983); DeSantis v. Piccadilly Land Corporation, 3 Conn. App. 310, 315-16, 487 A.2d 1110 (1985). Reversal because that discretion has been abused will be required only where the abuse is manifest or where injustice appears to have been done. DeSantis v. Piccadilly Land Corporation, supra. Here, evidence was presented which showed that, at all times during the dispute, the defendants continued to use the property as they had before executing the purported agreement, that one of the defendants had continued to maintain his residence on the premises, that the defendants’ efforts to sell the property to other buyers had been minimal and that the defendants had the unrestricted use of the $16,000. Our review of the trial court’s conclusion, which was based upon a weighing of the equities drawn from the facts presented to it, reveals no abuse of discretion.

The final claim of error raised by the defendants is that the trial court erred in awarding the plaintiffs damages because the claim of unjust enrichment was not pleaded at the original trial. In making this argument, the defendants appear to overlook the mandate of Montanaro I, in which the Supreme Court remanded this case on exactly that issue.

On remand, the issues may be restricted to one issue or to certain issues only. General Statutes § 52-266; Maltbie, Conn. App. Proc. § 350. An order restricting the issues will never be made unless the court clearly views the restriction as doing justice in the case. Murray v. Krenz, 94 Conn. 503, 508,109 A. 859 (1920). The power to make such an order falls within the discretion of the appellate court. Id.

The Supreme Court in Montanaro I acknowledged that the plaintiffs’ complaint invoked only general equitable principles and did not specifically refer to restitution of payments made in reliance upon the unenforceable option agreement. Montanaro I, supra, 490. It felt, however, that “in the interests of justice,” the case should be remanded on that issue.

Where it is apparent to the appellate court that a defect in the pleadings can be corrected by amendment, the reviewing court may direct that, on remand, new or supplemental pleadings be filed. 5 Am. Jur. 2d, Appeal and Error § 971; see Baskin’s Appeal from Probate, 194 Conn. 635, 484 A.2d 934 (1984). In this case, that was not required. Although the complaint was “hardly a model of good pleading,” the plaintiffs did make out a “residual” restitutionary claim. Montanaro I, supra, 490. The case was thus remanded for a determination of that claim, which affected the rights of the parties and which was not decided in the original trial. The trial court was bound to comply with that mandate. Wendland v. Ridgefield Construction Services, Inc., supra, 794. “Compliance means that the direction is not deviated from.” Humphrey v. Gerard, 84 Conn. 216, 221-22, 79 A. 57 (1911), quoted in Wendland v. Ridgefield Construction Services, Inc., supra, 794-95.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 52-226 provides: “In any action for legal relief, when the parties join in an issue of fact and the action is tried to the court, the judge of the court may hear and try the issue without a jury, award damages and costs, and grant execution, in the same manner and on the same principles as in a trial by jury. In any trial to a court, except a trial at a small claims session, the court shall find, upon written motion of either party made within fourteen days after the entry of judgment, the facts upon which its judgment is founded, and make the finding a part of the record.”
      Prior to the enactment of Public Acts 1982, No. 82-160, § 112, General Statutes (Rev. to 1981) § 52-226 provided: “In any action for legal relief, when the parties join in an issue of fact and put themselves on the court for trial, the judge of such court may hear and try the same without a jury, and award damages and costs, and grant execution, in the same manner and on the same principles as in trials by jury; but in any such trial, other than a trial at a small claims session, the court shall find, upon written motion of either party made within fourteen days after the entry of judgment, the facts upon which its judgment is founded, and cause such finding to become a part of the record.” (Emphasis added.)
      The legislative history of the 1982 amendment discloses that the rephrasing of General Statutes § 52-226 was a technical revision to “clarify and update” its language. Comments of David Biklen, executive director of the Connecticut Law Revision Committee, before the Joint Standing Committee on the Judiciary, 1982 Sess., pp. 347-48. It is apparent from the history of the act that the rewording is not to be read to extend the statute’s provision for special findings to actions for equitable relief.

       The defendants’ brief provides in part: “B. The trial court erred in concluding that the plaintiffs are entitled to recover the $16,000.00 they paid the defendants when it was the plaintiffs who elected not to purchase the subject property in accordance with the oral agreement between the parties, and when the defendants were, at all times, ready, willing and able to perform pursuant to the oral agreement. . . . E. The trial court erred in concluding that the plaintiffs were entitled to recover the $16,000.00 they paid the defendants, in view of the fact that the plaintiffs failed to exercise their rights under the option agreement.”


author: Daly, J.

text:
    In re Thomas L.

    (3100)
    Borden, Spallone and Daly, Js.
    Argued March 6
    decision released May 14, 1985

      Daniel V. Presnick, for the appellants (parents).

      Michael O’Connor, assistant attorney general, with whom, on the brief, was Joseph I. Lieberman, attorney general, for the appellee (department of children and youth services).

      Robert J. Sokolowski, for the minor child.

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 2026, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Daly, J.

In this juvenile matter, the department of children and youth services (DCYS) filed a petition to terminate the parental rights of the respondents, whose son, then three and one-half years old, had been placed in its custody since he was two years old. The child had not resided with the respondents, his biological parents, since he was two weeks old. The respondents later filed a petition to revoke the order of commitment to DCYS. From the trial court’s denial of their petition, the respondents have appealed.

The burden is clearly upon the persons applying for the revocation of commitment to allege and prove that cause for commitment no longer exists. Once that has been established, the inquiry becomes whether a continuation of the commitment will nevertheless serve the child’s best interests. On this point, when it is the natural parents who have moved to revoke commitment, the state must prove that it would not be in the best interests of the child to be returned to his or her natural parents. In re Juvenile Appeal (Anonymous), 177 Conn. 648, 659, 420 A.2d 875 (1979).

In a detailed and comprehensive memorandum of decision, the court concluded that the respondents did not prove by a preponderance of the evidence that cause for commitment no longer existed. It also concluded that the state did prove by a preponderance of the evidence that revocation was not in the child’s best interests. The credibility of witnesses is a matter to be determined by the trier of fact. In re Juvenile Appeal (Docket No. 9268), 184 Conn. 157,171, 439 A.2d 958 (1981); Holden & Daly, Connecticut Evidence (1966 and Sup. 1983) § 118 (c). Since the court’s conclusions are logically supported by the evidence and facts, we will not disturb those conclusions.

There is no error.

In this opinion the other judges concurred.


author: Borden, J.

text:
    Hartford National Bank and Trust Company v. Essex Yacht Sales, Inc., et al.
    (2879)
    (2880)
    Hull, Borden and Daly, Js.
    Argued February 8
    decision released May 14, 1985

      Paul W. Orth, with whom was Patricia B. Perkins, for the appellant-appellee (plaintiff).

      William F. Gallagher, with whom, on the brief, were Elizabeth A. Gallagher and Joseph Trotta, for the appellee-appellant (named defendant).

      Lawrence M. Lapine, with whom, on the brief, was Robert S. Bello, for the appellee (intervening defendant).
   Borden, J.

The plaintiff, Hartford National Bank and Trust Company (HNB), appealed from the judgment of the trial court in favor of the intervening defendant, First Pennsylvania Bank, N.A. (Pennsylvania), on the second count of the complaint, and on Pennsylvania’s counterclaim and cross complaint. Those pleadings involved the issue of the priority of HNB’s security interest in certain boats as collateral over Pennsylvania’s competing security interest in the same collateral. The named defendant, Essex Yacht Sales, Inc. (Essex), appeals separately from the judgment of the trial court in favor of HNB on Essex’s counterclaim. That counterclaim sought damages from HNB for malicious and excessive attachment of Essex’s boats. We find error on HNB’s appeal and no error on Essex’s appeal.

The court found the following facts: Essex was in the business of selling yachts at retail. In 1978, its incorporators borrowed $60,000 from HNB which was used as Essex’s initial capital. On February 20,1979, Essex guaranteed the note evidencing that loan and, to secure its obligation, executed a security agreement with HNB covering all of its present and after-acquired inventory.

Meanwhile, to facilitate its business of acquiring yachts for sale and selling yachts, Essex was engaged in financial arrangements with several other lenders, one of which was Pennsylvania. In January, 1979, an officer of Pennsylvania called HNB to inquire about HNB’s loan arrangement with Essex, and told HNB that Pennsylvania intended to enter into a purchase money mortgage, or floor plan, arrangement with Essex. On February 9,1979, eleven days prior to the execution of its security agreement with HNB, Essex entered into such a floor plan arrangement with Pennsylvania, in connection with which Essex, to secure its obligation to Pennsylvania, executed a security agreement covering all of its present and after-acquired inventory.

Both HNB and Pennsylvania mailed financing statements to the office of the secretary of the state. Both statements arrived in the morning mail of February 22, 1979, were processed in the usual manner and were stamped as having been accepted for filing. HNB’s statement was stamped in at 11:45 a.m., Pennsylvania’s at 11:51 a.m.

In July, 1980, Essex defaulted on the note to HNB. HNB thereupon filed this replevin action in order to enforce its security interest, and seized nine boats which were in the possession of Essex. These boats constituted the entire inventory of Essex, which thereupon went out of business. In connection with its replevin action, HNB filed a bond and an accompanying affidavit that the value of the boats seized was $100,000. See General Statutes § 52-518. The true value of the boats was far more, a fact of which HNB was aware at the time. Pennsylvania intervened as a defendant in the replevin action, claiming a security interest in the seized boats.

Ultimately, HNB filed a revised complaint in two counts, seeking possession of the boats and damages. The first count was directed against Essex. The second count, which was directed against Pennsylvania, asserted the priority of HNB’s security interest over that of Pennsylvania. Pennsylvania filed a counterclaim against HNB and a cross complaint against Essex, claiming the priority of its security interest in the boats over that of HNB, and seeking possession of the boats and damages. Essex filed a counterclaim against HNB for damages, alleging that HNB’s “attachment,” meaning the replevin, of its entire inventory was knowingly excessive and was a wilful and malicious effort to put Essex out of business.

As to the dispute between HNB and Pennsylvania, the trial court found that Essex had signed HNB’s security agreement, which contained an adequate description of the collateral, that HNB gave value, and that the earlier stamping of HNB’s financing statement governed over the later stamping of that of Pennsylvania. It also found, however, that under Pennsylvania’s arrangement with Essex and the manufacturer of seven of the nine boats in question, Pennsylvania held title to those seven boats. When a boat was to be sold by Essex, Pennsylvania would transfer title directly to the purchaser. At no time was title vested in Essex. The court therefore concluded that, except for two of the boats, and despite Pennsylvania’s security agreement to the contrary; see footnote 4, supra; Essex never acquired any rights in those seven boats, and that, therefore, pursuant to General Statutes § 42a-9-203, HNB’s security interest did not attach to them. On the basis of these conclusions, on the second count of HNB’s complaint, which was against Pennsylvania, on Pennsylvania’s counterclaim against HNB and on Pennsylvania’s cross complaint against Essex, the trial court rendered judgment in favor of HNB as to two of the boats only and in favor of Pennsylvania as to the other seven boats. HNB appealed from that judgment.

As to Essex’s counterclaim against HNB, the court found, inter alia, that in seizing the property in Essex’s possession HNB was motivated by reasonable commercial concern and that Essex had failed to prove that HNB’s replevin was either excessive or malicious. The court therefore rendered judgment in favor of HNB. Essex appealed from that judgment.

I

We first consider HNB’s appeal. HNB argues that the court erred in concluding that its security interest did not attach to the seven boats in question. We agree.

Subject to certain exceptions not applicable here, under the Uniform Commercial Code “a security interest is not enforceable against the debtor or third parties with respect to the collateral and does not attach unless: (a) . . . the debtor has signed a security agreement which contains a description of the collateral . . . (b) value has been given; and (c) the debtor has rights in the collateral.” General Statutes § 42a-9-203 (1). No question is raised on appeal as to Essex’s signing of HNB’s security agreement, the description of the collateral, the value given or the temporal priority of HNB’s financing statement. The sole issue involves whether Essex had rights in the collateral.

The trial court erred by focusing on the locus of the title to the collateral and concluding, from that locus, that Essex lacked rights in its after-acquired inventory which was subject to HNB’s security interest. In doing so, the court ignored the cardinal principle underlying article 9 that “[e]ach provision of this article with regard to rights, obligations and remedies applies whether title to collateral is in the secured party or in the debtor.” General Statutes § 42a-9-202, entitled “Title to collateral immaterial.” “The rights and duties of the parties to a security transaction and of third parties are stated in this Article without reference to the location of ‘title’ to the collateral.” U.C.C. comment, Conn. Gen. Stat. Ann. § 42a-9-202 (West 1960). “Title to goods is of little relative consequence under the . . . Code .... A deliberate effort was made by the drafters of the Code to avoid defining the rights of parties to goods in terms of who has title . . . . ” Morton Booth Co. v. Tiara Furniture, Inc., 564 P.2d 210, 212 (Okla. 1977); Kinetics Technology International Corporation v. Fourth National Bank, 705 F.2d 396, 399 (10th Cir. 1983) (Article 9 designed to prevent legal consequences flowing from manipulation of title). The arrangement in this case among Essex, Pennsylvania and the boat manufacturer is precisely the kind of manipulation of title to which article 9 denies legal consequences.

The Code does not define the term, “rights in the collateral”; In re Pubs, Inc., 618 F.2d 432, 436 (7th Cir. 1980); except to say that “ ‘[rights’ include remedies.” General Statutes § 42a-l-201 (36). “The cases generally hold, however, that where a debtor gains possession of collateral pursuant to an agreement endowing him with any interest other than naked possession, the debtor has acquired such rights as would allow the security interest to attach. In re Samuels & Co., Inc.,: Stowers v. Mahon, 526 F.2d 1238 (5th Cir. 1976); First National Bank of Elkhart County v. Smoker, Ind. Ct. App., 11 U.C.C. Rep. 10 (1972); Evans Products Co. v. Jorgensen, 245 Or. 362, 421 P.2d 978 (1966).” Mortem Booth Co. v. Tiara Furniture, Inc., supra, 214; Kinetics Technology International Corporation v. Fourth National Bank, supra, 399; see also State Bank of Young America v. Vidmar Iron, 292 N.W.2d 244 (Minn. 1980).

The facts found by the trial court and the undisputed documents compel the conclusion that Essex had rights in the collateral. Essex was in the business of acquiring and selling yachts. These boats were its inventory, acquired and held by it for the purpose of sale in the course of its business. Pennsylvania’s security agreement with Essex recognized the right of Essex to sell the boats in the usual course of its business. See footnote 4, supra. HNB’s security agreement recognized Essex as the owner of the boats. See footnote 3, supra. Indeed, it is difficult to conceive of a clearer or more classic case of a debtor having “rights in the collateral” pursuant to General Statutes § 42a-9-203. Of course, the fact that Essex may not have owned or had possession of the boats when it executed the security agreement with HNB is of no moment under the Code. “A person holding a security [agreement] which includes a clause adding after-acquired property as collateral takes a security interest in the after-acquired property upon its acquisition by the debtor.” (Footnote omitted.) 4 Anderson, Uniform Commercial Code (2d Ed.) § 9-204:7.

Ordinarily this conclusion would simply mandate a judgment for HNB. Here, however, HNB and Pennsylvania stipulated that, pending the litigation, the boats would be released to Pennsylvania; see footnote 5, supra; and we were informed at oral argument that, pursuant to that release, Pennsylvania has sold the boats. Thus, HNB’s security interest has by their agreement attached to the proceeds of the sale. Our remand, therefore, will require further proceedings between HNB and Pennsylvania.

On the plaintiffs appeal, there is error in the judgment on the second count of the complaint and on the intervening defendant’s counterclaim and cross complaint; that judgment is set aside and the case is remanded with direction to render judgment for the plaintiff in an amount to be determined in further proceedings consistent with this opinion.

II

The separate appeal of Essex, from the judgment of the trial court in favor of HNB on Essex’s counterclaim, requires little discussion. The entire thrust of the appeal is that the court erred by not finding that Essex had proved a claim for tortious interference with its business, because it proved that, in obtaining the “attachment,” HNB acted both maliciously and fraudulently. The trial court read the counterclaim as alleging a wilful and malicious excessive attachment. If we assume arguendo that this amounted to a claim for tortious interference with business, rather than the different tort of abuse of process; see Wright & FitzGerald, Connecticut Law of Torts (2d Ed.) §§ 163, 165; Essex’s argument is without merit.

The court found that in seizing the boats HNB was motivated by reasonable commercial concern, that the attachment was not excessive and that it was not done with malice. It also found that Essex’s note to HNB had been in default for some time, the original obligors were no longer in the business, Essex was in financial trouble, its inventory had just been released from another attachment, and HNB was concerned about the priority of its security interest over that of Pennsylvania. These findings, which are not clearly erroneous, are fatal to Essex’s claim of malice.

Essex’s claim of fraud is of even less avail. It is a claim which was not pleaded, litigated, or even referred to in Essex’s preliminary statement of issues on appeal. We therefore do not consider it. Leabo v. Leninski, 2 Conn. App. 715, 728, 471 A.2d 670 (1984).

On the appeal by the defendant Essex Yacht Sales, Inc., there is no error.

In this opinion the other judges concurred.

       This appeal, originally filed in the Supreme Court, was transferred to this court. General Statutes § 51-199 (c).

       On the first count, a judgment was rendered for HNB against the named defendant, Essex Yacht Sales, Inc. That judgment was for the amount owed to HNB by Essex and is not before us on appeal.

       The security agreement provided in part: “Except pursuant to this Agreement, no financing statement has been filed with respect to the Collateral, [Essex] is the absolute and undisputed owner of the Collateral . ” The agreement also recognizes, subject to the security interest of HNB, the normal incidences of such ownership by Essex, such as insurability of the collateral.

       This security agreement provided in part: “[Essex] (‘Borrower’), to secure the obligations described below, hereby grants to [Pennsylvania]. .. a mortgage upon and a security interest (both interests being referred to below as a ‘security interest’) in the following Inventory: all boats and Marine related equipment now owned or hereafter acquired .... Borrower . . . warrants that, except for interests disclosed to [Pennsylvania] in writing before the execution of this Agreement, the Goods are free from any ownership interest except that of the Borrower. . . . Borrower may sell the Goods in the usual course of business for customary prices, and not otherwise, and immediately after any sale if [Pennsylvania] shall require it shall deliver to [Pennsylvania] either (a) the proceeds of such sale . . . or (b) an amount equal thereto to be applied to the payment of Borrower’s indebtedness to [Pennsylvania] at the time . . . . ”

       During the litigation, HNB and Pennsylvania stipulated to release the boats to Pennsylvania, which filed a bond of $90,000.

       We note that, although it was not raised by the parties, the trial court in its memorandum of decision raised the question of whether the priorities of the competing security interests should have been determined pursuant to the federal Ship Mortgage Act of 1920; 46 U.S.C. §§ 911-984; rather than Connecticut’s version of the Uniform Commercial Code. Noting, however, that all the documents and pleadings of the parties relied on the Code and that the parties had proceeded thereunder, the court wisely concluded that article 9 of the Code, which is “known and may be cited as Uniform Commercial Code—Secured Transactions”; General Statutes § 42a-9-101; governed. We do likewise. Trivalent Realty Co. v. Westport, 2 Conn. App. 213, 215 n.4, 477 A.2d 140 (1984).


author: Per Curiam.

text:
    Civil Service Commission v. Commission on Human Rights & Opportunities ex rel. James M. Trainor et al.
    (3995)
    Dupont, C.P.J., Hull, Borden, Spallone and Daly, Js.
    Decision released May 14, 1985
   Per Curiam.

On February 12, 1985, our Supreme Court set aside the judgment of the Appellate Session of the Superior Court in this case and remanded the case to this court with direction to reinstate the trial court’s judgment of dismissal. Civil Service Commission v. Commission on Human Rights & Opportunities, 195 Conn. 226, 487 A.2d 201 (1985).

Pursuant to, and in conformity with, that remand, we hereby reinstate the judgment of the trial court.

       Appeals formerly filed in the Appellate Session of the Superior Court have been transferred to the Appellate Court by Public Acts, Spec. Sess., June, 1988, No. 83-29, § 3; General Statutes § 51-197a.


text:
    Bridgeport Bowl-O-Rama, Inc. v. Zoning Board of Appeals of the City of Bridgeport et al.
    (3994)
    Dupont, C.P.J., Hull, Borden, Spallone and Daly, Js.
    Decision released May 14, 1985
   Per Curiam.

On February 19, 1985, our Supreme Court set aside the judgment of the Appellate Session of the Superior Court in this case and remanded the case to this court with direction to reinstate the trial court’s judgment of dismissal. Bridgeport Bowl-O-Rama, Inc. v. Zoning Board of Appeals, 195 Conn. 276, 487 A.2d 559 (1985).

Pursuant to, and in conformity with, that remand, we hereby reinstate the judgment of the trial court.

       Appeals formerly filed in the Appellate Session of the Superior Court have been transferred to the Appellate Court by Public Acts, Spec. Sess., June, 1983, No. 83-29, § 3; General Statutes § 51-197a.


text:
    Richard Schmidt v. Yardney Electric Corporation et al.
    (2832)
    Dupont, C.P.J., Borden and Daly, Js.
    Argued February 15
    decision released May 21, 1985

      Conrad O. Seifert, for the appellant (plaintiff).

      Louis Ciccarello, with whom, on the brief, was Robert A. Fuller, for the appellees (defendants).
   Borden, J.

In this case, we are called upon to decide whether the principle articulated by Sheets v. Teddy’s Frosted Foods, Inc., 179 Conn. 471, 427 A.2d 385 (1980), applies to the facts alleged by the plaintiff in the third and fourth counts of his complaint. We hold that it does, and that the plaintiff has stated viable causes of action in those counts.

The plaintiff’s complaint is in six counts. The first and second counts purport to allege claims against his former employer, the defendant Yardney Electric Corporation (Yardney), and its parent corporation, the defendant Whittaker Corporation (Whittaker), respectively, based on the theory that they had breached an employment contract for an indefinite term by discharging him without just cause. The third and fourth counts purport to allege claims against the defendants based on a theory of the tort of wrongful discharge. The fifth and sixth counts purport to allege claims against the defendants based on a theory of the tort of negligent discharge.

The trial court granted the defendants’ motion to strike the entire complaint, holding that none of the counts stated a valid cause of action. Judgment was rendered for the defendants when the plaintiff failed to replead. From that judgment, the plaintiff appeals. We find no error as to counts one, two, five and six; we find error as to counts three and four.

I

At oral argument in this court, the plaintiff conceded that the decision of the Supreme Court in Magnan v. Anaconda Industries, Inc., 193 Conn. 558, 479 A.2d 781 (1984), precludes his claims under the first and second counts. In that case, the court declined “to enlarge the circumstances under which an at-will employee may successfully challenge his dismissal beyond the situation where the reason for his discharge involves ‘impropriety . . . derived from some important violation of public policy.’ ” Id., 572.

The plaintiff’s claims under the fifth and sixth counts essentially mirror those under the first and second counts, with two exceptions: The theory shifts from breach of contract by wrongful discharge to the tort of wrongful discharge; and the basis of the claim shifts from discharge without just cause to negligent discharge. The allegations of negligence are that the defendants discharged the plaintiff without stating a reason, without giving him timely and adequate prior notice, without giving him a pink slip, without giving him severance pay, without telling him of the changed status of his life insurance, disability and stock options upon termination, and by using a policy manual that had not been used before rather than following a previously established course of conduct. The shift from a contract to a tort theory is immaterial, since “[wjhether a claim resulting from ... a discharge [of an at-will employee] is framed in tort or in contract should make no difference with respect to the issue of liability.” Magnan v. Anaconda Industries, Inc., supra, 572. The plaintiffs allegations of negligence set forth an a fortiori case with respect to the holding of Magnan v. Anaconda Industries, Inc., supra. We therefore conclude that counts five and six do not state causes of action.

II

This leaves for analysis the principal issue in this case: Whether the plaintiff’s allegations in the third and fourth counts state causes of action under Sheets v. Teddy’s Frosted Foods, Inc., supra. That case held that a discharged at-will employee may sue for the tort of wrongful discharge “if the former employee can prove a demonstrably improper reason for dismissal, a reason whose impropriety is derived from some important violation of public policy.” (Emphasis in original.) Id., 475; Magnan v. Anaconda Industries, Inc., supra.

The third count, directed against Yardney, alleges essentially as follows: In April, 1965, Yardney hired the plaintiff as a salaried employee under an oral employment contract for an indefinite term. From that time through May, 1982, the plaintiff was continuously employed by Yardney, and during that period he secured a number of promotions, ultimately achieving the position of vice-president of operations. His employment with Yardney is of great importance to him, affecting his home, family life and standing in the community.

That count further alleges that in May, 1982, Yardney terminated his employment without just cause. At that time, he had an annual salary of $35,000, with vested pension rights and stock options. This discharge was a willful, malicious, and vindictive act by Yardney, in that it was done because of the plaintiff’s cooperation with investigators of Whittaker, Yardney’s parent corporation, arising out of the following series of events: In June, 1979, some Yardney molds had been slightly damaged by a fire. Yardney’s president ordered the plaintiff to falsify an insurance claim by grossly exaggerating Yardney’s losses by the amount of approximately $350,000. By being ordered to participate in this falsified claim, the plaintiff’s health deteriorated seriously, causing him to go on a medical leave of absence in January, 1981. At that time, Yardney told him that his position was secure and would be waiting for him on his return.

This count alleges further as follows: In April, 1982, company auditors of Whittaker contacted the plaintiff for the express purpose of questioning him about the falsified insurance claim. He fully disclosed his knowledge about the falsified claim to the auditors. By May, 1982, his cooperation with the Whittaker auditors was communicated to the officers of Yardney, and he was discharged in retaliation for that cooperation. All the other Yardney employees who similarly cooperated with the auditors were terminated as well. As a result of Yardney’s willful and malicious actions, the plaintiff suffered economic and personal losses.

The fourth count, directed against Whittaker, repeats the allegations of the third count, and adds that Yardney is a subsidiary of Whittaker, that the plaintiff held vested pension rights and stock options in Whittaker by virtue of his employment with Yardney, that the two corporations share common directors, that in dismissing him Yardney was acting as Whittaker’s agent, and that Whittaker approved, condoned and ratified Yardney’s actions. Neither side questions that, if the plaintiff has stated a cause of action against Yardney in the third count, he has also stated sufficient facts to pierce the corporate veil between the two, on the fourth count. See Angelo Tomasso, Inc. v. Armor Construction & Paving, Inc., 187 Conn. 544, 447 A.2d 406 (1982).

It is axiomatic that, in passing on a motion to strike based on a claim of failure to state a cause of action, we must take the facts alleged favorably to the pleader and view those facts in a broad fashion, not strictly limited to the allegations, but also including the facts necessarily implied by and fairly provable under them. Amodio v. Cunningham, 182 Conn. 80, 83, 438 A.2d 6 (1980); Alarm Applications Co. v. Simsbury Volunteer Fire Co., 179 Conn. 541, 545, 427 A.2d 822 (1980); Shelby Mutual Ins. Co. v. Della Ghelfa, 3 Conn. App. 432, 444-45, 489 A.2d 398 (1985); Greene v. Metals Selling Corporation, 3 Conn. App. 40, 41-42, 484 A.2d 478 (1984). Under this standard, counts three and four pass muster.

The allegations necessarily implied and the plaintiff could fairly prove under those allegations that the fraudulent insurance claim was presented to and paid by Yardney’s insurer, and that his motivation in cooperating with the auditors was, at least in part, to help redress the fraud in which he participated on orders of Yardney’s president. His allegations imply, in this connection, that Yardney desired to keep that fraud a secret and that his dismissal was in retaliation for helping to bring it to light.

This would, we believe, allow proof that the plaintiff’s dismissal involved impropriety derived from some important public policy. Magnan v. Anaconda Industries, Inc., supra; Sheets v. Teddy’s Frosted Foods, Inc., supra. The important public policy we identify is the one against fraud, which is deeply rooted in our common law; see Broome v. Beers, 6 Conn. 198, 210-12 (1826); and in our criminal statutes. See, e.g., General Statutes § 53a-119 (2) (obtaining property by false pretenses). In addition, to the extent that the falsified claim filed by Yardney constituted a crime, Yardney’s retaliatory dismissal of the plaintiff contravened the public policy in favor of encouraging citizens “to raise the ‘hue and cry’ and report [crimes] to the authorities.” Branzburg v. Hayes, 408 U.S. 665, 696, 92 S. Ct. 2646, 33 L. Ed. 2d 626 (1971); see General Statutes § 31-51m (protection of employee who discloses employer’s illegal activities to public body).

The defendants argue in effect that the plaintiff was dismissed, not in retaliation for disclosing the fraud, but because it was discovered that he had participated in it. While that version of events may, upon a trial, prevail as a matter of fact, the defendants’ argument ignores the rule that on a motion to strike the plaintiff’s allegations must be taken in his favor, not to his detriment. The plaintiff alleged in effect that he was dismissed in retaliation for disclosing the fraud, not because he participated in it.

There is error in part, the judgment is set aside as to the third and fourth counts of the complaint, and the case is remanded for further proceedings on those counts.

In this opinion the other judges concurred.

       We note that, after alleging an oral employment contract for an indefinite term, the plaintiff alleged that “[t]he aforesaid contract gave rise to a reasonable expectation on the part of the Plaintiff that he would not be discharged in the absence of just cause, and that he would enjoy a bright future with unlimited opportunity in Defendant Yardney’s company.” While this allegation arguably could have supported a cause of action; see Magnan v. Anaconda Industries, Inc., 198 Conn. 558, 564-65, 572, 479 A.2d 781 (1984) (implied promise to discharge only for cause may arise when an employee, in reliance on an implied representation that his employment will not be arbitrarily terminated, acts in reasonable and significant reliance on the representation); we also note that the plaintiffs concession encompassed this allegation, he placed no reliance on it in his brief or oral argument in this court, and there is no allegation in the complaint of such reasonable and significant reliance. We therefore consider that he has abandoned any such claim.

       As in Sheets v. Teddy’s Frosted Foods, Inc., 179 Conn. 471, 427 A.2d 385 (1980), “[w]e need not decide whether violation of a state statute is invariably a prerequisite to the conclusion that a challenged discharge violates public policy. Certainly when there is a relevant state statute we should not ignore the statement of public policy that it represents.” Id., 480.


author: Wagner, J.

text:
    Henry Jazlowiecki v. Louis J. Cyr
    (2213)
    Borden, Spallone and Wagner, Js.
    Argued March 1
    decision released May 21, 1985

      Harvey Fruehter, for the appellant (plaintiff).

      Christina M. Storm, for the appellee (defendant).
   Wagner, J.

In this action based on breach of contract and negligence, the plaintiff seeks to recover for damage allegedly caused by a defective roof installed by the defendant. After a trial to the court, judgment was rendered for the defendant on July 13, 1983.

On August 1,1983, the plaintiff took this appeal from that judgment, claiming that the trial court erred (1) in its finding of facts and application of the law, (2) in failing to disqualify itself because of a probable bias against a key witness for the plaintiff, and (3) in failing to disclose such probable bias at the time of trial.

As to the plaintiffs first claim of error, the record furnishes no basis for us to conclude that the trial court erred in either its finding of facts or conclusions of law. It is well settled that the credibility of witnesses and the weight to be accorded their testimony is entirely within the discretion of the trier of fact. Piantedosi v. Floridia, 186 Conn. 275, 277, 440 A.2d 977 (1982); Vaiuso v. Vaiuso, 2 Conn. App. 141, 146, 477 A.2d 678, cert. denied, 194 Conn. 807, 482 A.2d 712 (1984). On appeal, it is this court’s function to determine whether the decision of the trial court was clearly erroneous. Piantedosi v. Floridia, supra, 276-77; see Practice Book § 3060D. This case involves factual questions relating to the condition and structure of the roof prior to the work done by the defendant, and to subsequent work on the roof by contractors other than the defendant. On the basis of the record before us, we find that the plaintiff has failed to establish that the trial court’s conclusion that “[t]he plaintiff did not present sufficient credible evidence to meet its burden of proof either on liability or on damages” was clearly erroneous.

The plaintiff’s claims of error relating to the possible bias of the trial judge involve Edward Jazlowiecki, an attorney and the son of the plaintiff, who appeared as an expert roof construction witness on the plaintiff’s behalf. The plaintiff claims that on April 15,1981, the trial judge filed a report with the local grievance committee requesting an investigation of Edward Jazlowiecki’s conduct in a prior unrelated case. The plaintiff argues that the trial court’s filing of the report and its failure to inform the plaintiff, his attorney or Edward Jazlowiecki of that fact prior to or at the time of trial, indicated such bias as to constitute reversible error. The plaintiff points to the trial court’s characterization of Edward Jazlowiecki in its memorandum of decision as “an expert witness whose expertise rested on having acquired an engineering degree from a college some years back and having built two houses which assuredly had roofs” as evidence of this bias.

It is true, as the plaintiff claims, that a judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned. Code of Judicial Conduct, Canon 3 C (1). A charge of judicial bias or prejudice strikes at the very core of judicial integrity and requires that the record be examined with infinite care. Szypula v. Szypula, 2 Conn. App. 650, 653, 482 A.2d 85 (1984); see Cameron v. Cameron, 187 Conn. 163, 168, 444 A.2d 915 (1982); Felix v. Hall-Brooke Sanitarium, 140 Conn. 496, 501, 101 A.2d 500 (1953). The record before us, however, is totally lacking in facts upon which the trial judge’s impartiality can be questioned. No claim is made, nor does the record indicate, that the trial was conducted in anything but a completely fair and impartial manner.

In Szypula v. Szypula, supra, we discussed at length the procedures available to obtain an evidentiary hearing when a claim of judicial bias is raised. In considering Canon 3 C of the Code of Judicial Conduct, we noted that “[a]ll that is clear [from that Canon] is that the litigant must ‘[raise] the question of disqualification in a timely and appropriate manner.’ ” Id., 654. There is nothing in the record which indicates that the plaintiff ever requested an evidentiary hearing on the question of bias.

The record discloses that the plaintiff was cognizant of his claim of judicial bias on August 1, 1983, when he filed this appeal. It appears that he took no steps to raise this claim in the trial court until late November, 1983, more than four months after judgment was rendered, when he moved to set aside and open the judgment. Practice Book § 326 states that a civil judgment may be opened or set aside where a motion to do so is filed within four months from the date judgment was rendered “[ujnless otherwise provided by law and except in such cases in which the court has continuing jurisdiction . . . .” This is not a case over which the court had continuing jurisdiction, and there is nothing before us which indicates that the parties in any way waived the time requirement of that rule. See Perkins v. Perkins, 3 Conn. App. 322, 328, 487 A.2d 1117 (1985). Although the plaintiff states that his motion was denied, the record contains nothing of the proceedings with regard to that disposition and does not show that the plaintiff ever requested an order to complete the record under Practice Book § 3096 or an articulation of the basis of the trial court’s decision under Practice Book § 3082. See Montanaro v. Snow, 4 Conn. App. 46, 50-51, 492 A.2d 223 (1985).

An appellant assumes the responsibility of presenting an adequate record for consideration by the appellate tribunal. Grunschlag v. Ethel Walker School, Inc., 189 Conn. 316, 320, 455 A.2d 1332 (1983); Holmes v. Holmes, 2 Conn. App. 380, 383, 478 A.2d 1046 (1984). “This court cannot resort to matters extraneous to the formal record, to facts which have not been found and which are not admitted in the pleadings, or to documents or exhibits which are not part of the record.” Rybinski v. State Employees’Retirement Commission, 173 Conn. 462, 465, 378 A.2d 547 (1977); B/M Redev. Corporation v. Serrano, 3 Conn. App. 409, 488 A.2d 848 (1985).

There is no error.

In this opinion the other judges concurred.


author: F.X. Hennessy, J.

text:
    John W. Spatola v. Deborah L. Spatola et al.
    (2596)
    Borden, Daly and F.X. Hennessy, Js.

      Argued March 15—decision
    released May 21, 1985

      David P. Ball, with whom, on the brief, was Marylouise S. Black, for the appellant (plaintiff).

      Thomas F. McDermott, Jr., with whom, on the brief, was DavidS. Miles, for the appellee (named defendant).
   F.X. Hennessy, J.

This is an appeal by the plaintiff from the judgment of the trial court. That judgment denied the request of the plaintiff to transfer the named defendant’s (hereinafter the defendant) interest in certain property to him, and ordered that the property be sold and the net proceeds of the sale be equally divided between the parties.

The court found the following facts: The four and one-half year marriage of the plaintiff and the defendant ended in a dissolution in 1979. Shortly thereafter, the parties attempted a reconciliation in order to see if they could make a success of their former relationship before any remarriage. During this time, the plaintiff purchased a parcel of land which he caused to be placed in their joint names knowingly, voluntarily, and without any agreement or condition.

The reconciliation attempt failed, and the plaintiff sought by this action to obtain the defendant’s interest in the property. The defendant counterclaimed for a sale of the premises and disposition of the proceeds.

The trial court rejected the plaintiff’s claims of a constructive trust, a resulting trust and unjust enrichment of the defendant, and rendered judgment for the defendant on her counterclaim. The plaintiff claims that the trial court erred in failing to find a constructive trust, a resulting trust or unjust enrichment, and that the court further erred in finding that he intended the property to be a gift to the defendant, as opposed to a transfer contingent solely upon the remarriage of the parties. We find no error.

A constructive trust arises “ ‘contrary to intention and in invitum, against one who, by fraud, actual or constructive, by duress or abuse of confidence, by commission of wrong, or by any form of unconscionable conduct, artifice, concealment, or questionable means, or who in any way against equity and good conscience, either has obtained or holds the legal right to property which he ought not, in equity and good conscience, hold and enjoy.’ ” Zack v. Guzauskas, 171 Conn. 98, 103, 368 A.2d 193 (1976). “ ‘A constructive trust arises whenever another’s property has been wrongfully appropriated and converted into a different form.’ ” Van Auken v. Tyrrell, 130 Conn. 289, 292, 33 A.2d 339 (1943). It also arises when a person “ ‘who holds title to property is subject to an equitable duty to convey it to another on the ground that he would be unjustly enriched if he were permitted to retain it.’ ” Brown v. Brown, 190 Conn. 345, 349, 460 A.2d 1287 (1983).

A resulting trust arises “by operation of law at the time of a conveyance when the purchase money for property is paid by one party and the legal title is taken in the name of another.” Farrah v. Farrah, 187 Conn. 495, 500, 446 A.2d 1075 (1982). It “arises to enforce presumed or inferred intent, usually in the absence of any element of fraud . . . .” Zack v. Guzauskas, supra. The court determined that there was no evidence presented at the trial which would allow the conclusion that the property was wrongfully appropriated or was received by the defendant under any of the circumstances set forth in Zack v. Guzauskas, supra. Thus, there was insufficient evidence to support a finding of a constructive trust. The court further found that, while the plaintiff may have had an expectation of a reconveyance, he did not intend the conveyance to be contingent upon the defendant entering into a new marriage with him. Thus, there was insufficient evidence to support a finding of a resulting trust.

In deciding whether the property was wrongfully appropriated or retained and what the intent of the parties was at the time of the conveyance, the court in this case had to rely upon its impression of the credibility of the witnesses. “Intent is a question of fact, the determination of which is not reviewable unless the conclusion drawn by the trier is one which could not reasonably be drawn.” Whitney v. Whitney, 171 Conn. 23, 33, 368 A.2d 96 (1976).

“[W]here the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous.” (Footnote omitted.) Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).

We have reviewed the facts and testimony as presented and find that the court could reasonably conclude as it did.

There is no error.

In this opinion the other judges concurred.


text:
    Town of Wallingford v. Glen Valley Associates, Inc., et al.
    (2864)
    Borden, Daly and Kulawiz, Js.
    Argued April 25
    decision released May 21, 1985

      Raphael Korff, for the appellant (named defendant).

      John F. Mezzanotte, with whom, on the brief, was Walter R. Kusak, for the appellee (plaintiff).
   Per Curiam.

The court did not abuse its discretion in refusing to open the judgment and extend the law days.

There is no error; the case, however, must be remanded with direction to modify the judgment by fixing new law days.


text:
    John Yervant v. BAJ Corporation
    (2925)
    Borden, Daly and Hendel, Js.
    Argued March 15—decision
    released May 21, 1985

      Abram W. Spiro, for the appellant (defendant).

      Herbert V. Camp, Jr., with whom was Robert Evans, for the appellee (plaintiff).
   Per Curiam.

This is a summary process action commenced for nonpayment of rent. The defendant appeals to this court from the judgment of the trial court granting possession of the premises to the plaintiff.

The defendant principally claims that the trial court erred in finding that the defendant was in default of its lease (1) because the plaintiff had accepted payment of rent from the defendant prior to giving notice to quit to the defendant, and (2) because the plaintiff held a security deposit covering a substantial portion of the overdue rent, and that forfeiture of the defendant’s rights under its lease constitutes an unconscionable hardship. We find no error.

The defendant failed to pay the rent due under its lease for the months of September and October, 1983. On October 16, 1983, the defendant delivered to the plaintiff a check for the October, 1983 rent. The plain-' tiff took the check and told the defendant that he would show it to his lawyer. After consulting with his lawyer, the plaintiff returned the check to the defendant the next day. The plaintiff served the defendant with a notice to quit on October 20, 1983.

It is well established that a lessor may not assert a forfeiture of a lease for failure to pay rent due under the lease where, with knowledge of the breach of the lease, he accepts rent from the lessee. Borst v. Ruff, 137 Conn. 359, 361-62, 77 A.2d 343 (1950). Nonpayment of rent does not, in itself, terminate a lease, but gives the lessor the option to terminate the lease by some unequivocal action clearly showing the exercise of that option, and a tender of rent after a breach of the covenant of payment, but before a declaration of forfeiture by some unequivocal act by the lessor, precludes the lessor from thereafter completing a forfeiture of the lease. Mayron’s Bake Shops, Inc. v. Arrow Stores, Inc., 149 Conn. 149, 156, 176 A.2d 574 (1961).

In the present case, the trial court specifically found that there was no tender made for the September rent prior to the serving of the notice to quit. Moreover, in the present case, unlike the case of Borst v. Ruff, supra, which is relied upon by the lessee, there was not a long, unexplained retention of the checks delivered to the lessor tending to show acceptance for the purpose for which the checks were given, but there was rather a brief explained retention of the October rent check and a return of the check to the lessee within one day.

Here, as in Borst, the vital question of fact which confronted the court was the intention of the lessor as manifested by what the lessor did. Id., 361. We cannot say that the conclusion of the trial court that the check was not accepted by the plaintiff as payment for the October rent was clearly erroneous.

At the time of the offer of the October rent, the plaintiff was in possession of the sum of $2825 deposited by the defendant as security for the defendant’s compliance with the terms of the lease. The rent due for September was $3075. The defendant claims that inasmuch as the plaintiff had the right to apply the security deposit towards the September rent and a balance of $250 would then have remained unpaid, forfeiture of the defendant’s rights under the lease constitutes an unconscionable hardship to the defendant. We disagree.

The security deposit provision in section four of the lease provides that “[i]f Tenant fails to comply with any term of this lease, Landlord may apply the security deposit to ensure compliance in addition to pursuing remedies by way of eviction and claims against the Tenant . . . .” Under this provision, the plaintiff had no obligation to apply the security deposit towards the September rent, and the defendant has not cited any authority for the proposition that the presence of a security deposit is a defense to the nonpayment of rent.

There is no error.


text:
    Carol Gravelin v. Frank Gravelin
    (2834)
    Borden, Daly and Satter, Js.
    Argued April 25
    decision released May 21, 1985

      Daniel V. Presnick, for the appellant (defendant).

      Jarvis H. White, for the appellee (plaintiff).
   Per Curiam.

There is no error.


author: Hull, J.

text:
    Cynthia Tucker v. Board of Education of the Town of Norfolk
    (2936)
    Hull, Spallone and Daly, Js.
    Argued March 6—decision
    released May 21, 1985

      Martin A. Gould, for the appellant (plaintiff).

      Thomas N. Sullivan, for the appellee (defendant).
   Hull, J.

The plaintiff, a tenured teacher, filed this third appeal in the same dispute with the defendant board of education, claiming that the trial court, L. Dorsey, J., erred in dismissing her appeal from a three year suspension as a teacher, on the ground that the plaintiff could not appeal under General Statutes § 10-151 (f) since she was suspended rather than terminated from her employment. In accordance with Tucker v. Board of Education, 177 Conn. 572, 418 A.2d 933 (1979) (Tucker I), and Tucker v. Board of Educa tion, 190 Conn. 748, 462 A.2d 385 (1983) (Tucker II), we find no error in the court’s judgment dismissing the plaintiff’s appeal.

A brief history of this lengthy litigation will suffice. The plaintiff was employed as a teacher from 1971 to 1976 when her employment was terminated, after a hearing under General Statutes § 10-151 (b), for insubordination in taking a four day leave of absence despite having been denied permission to do so. The termination was reversed on appeal to the Court of Common Pleas. The defendant appealed to the Supreme Court which concluded that, although the plaintiff was insubordinate in her conduct, “the drastic disciplinary action of dismissal constituted exceedingly excessive punishment for the plaintiffs misconduct, and an abuse of discretion, especially in the light of the plaintiff’s excellent and unblemished school record as a capable, dedicated teacher.” Tucker I, supra, 581-82. The Supreme Court reversed the trial court’s judgment and ordered the case returned to the board for the imposition of a penalty consistent with the views expressed in its opinion.

On June 4,1979, the defendant met to consider the plaintiff’s case on the basis of the record of the February 4,1976 hearing and the remand order. As a result of that meeting, at which the plaintiff was not given the opportunity to be heard, the board offered the plaintiff reinstatement to a full-time teaching position and voted to consider her absence from employment from the beginning of the 1976-77 school year to August 29, 1979, as a period of suspension without pay or benefits.

The plaintiff then appealed from the action of the board and also brought an action for a declaratory judgment to determine the legality of her suspension without pay for three years. In the declaratory judgment action, the trial court, Stoughton, J., upheld the board’s decision imposing a penalty short of contract termination, and concluded that it should not substitute its discretion for that of the board in determining a proper penalty. The plaintiff appealed again to the Supreme Court which upheld the judgment, stating: “[W]e point out that the board, in imposing the suspension, did impose a penalty ‘short of termination of her contract’ and had jurisdiction to do so. Tucker v. Board of Education, supra, 582. While the plaintiff maintains that this is an excessive penalty, it is one which the board could legally impose under Tucker I. In carrying out the mandate of this court, the board was limited to the specific direction of the mandate as interpreted in the light of the opinion. Gary Excavating Co. v. North Haven, 163 Conn. 428, 430, 311 A.2d 90 (1972); Mazzotta v. Bornstein, 105 Conn. 242, 243, 135 A. 38 (1926). On remand, while the board could not alter our decision, it could take action which was not inconsistent with our decision. See Mazzotta v. Bornstein, supra, 244; King v. Alaska State Housing Authority, 571 P.2d 1010, 1012 (Alaska 1977). The suspension imposed was, as a matter of law, within our remand to the board.” Tucker II, supra, 752.

The Supreme Court, despite this ruling, considered, in obiter dictum, out-of-state authority cited by the plaintiff to support her claim that the court should have considered the excessiveness of the penalty. The court distinguished such cases and held that “the cases cited by the plaintiff do not support her claim that the action of the board in imposing the suspension was excessive, arbitrary and illegal.” Tucker II, supra, 754. In concluding this, the court stressed the narrowness of the review offered to the plaintiff in her declaratory judgment action, concluding that “[a declaratory judgment action] is not appropriate for challenging the correctness of an agency’s decision in a given case; Aaron v. Conservation Commission, 178 Conn. 173, 178, 422 A.2d 290 (1979); particularly where there is no right, as here, to a statutory appeal from the determination of a school board imposing a sanction short of termination. In the absence of constitutional claims, therefore, the only basis for her declaratory judgment action is the remand in Tucker I. Tucker II, supra, 755.

From the trial court’s dismissal of the plaintiff’s appeal to it from the board’s decision to reinstate her without back pay, the plaintiff appeals to this court raising three issues: (1) Whether the plaintiff, a tenured teacher, has a right to appeal pursuant to General Statutes § 10-151 (f) where her employment was suspended as a result of the defendant board’s decision made subsequent to a hearing held under General Statutes § 10-151 (b), which hearing was held to consider the termination of the plaintiff’s employment; (2) whether the trial court erred in applying, as a standard of review, the standard enunciated in Tucker II, i.e., whether the action of the defendant in suspending the plaintiff was, as a matter of law, within the mandate of the Supreme Court as set forth in Tucker I; (3) whether the action of the defendant Board of Education in suspending the plaintiff without pay for the period beginning with the 1976-77 school year and extending until August 29, 1979, was excessive, arbitrary, illegal and an abuse of its discretion.

Since we conclude that the trial court was correct in ruling that the plaintiff did not have the right to appeal from a suspension of employment, we do not reach the second and third grounds of her appeal.

The Supreme Court, in Tucker II stated: “No appeal, of course, could be taken from the board’s action of June 4,1979, because under General Statutes § 10-151 (f) an appeal may be taken only from a decision to terminate a teacher’s contract of employment. See Delagorges v. Board of Education, 176 Conn. 630, 633-34, 410 A.2d 461 (1979).” Tucker II, supra, 754. This statement, and the similar one cited earlier herein, are dicta. We conclude, however, that they represent a correct statement of the law.

The plaintiff argues that she is an “aggrieved person” and is thus entitled to appeal under General Statutes § 10-151 (f) even though she was suspended and not terminated. Once again, she cites out-of-state authority sustaining such a right. In considering this issue, we look first to the Delagorges case cited by the Tucker II court. The consolidated cases in Delagorges concerned the transfer of two educators from positions as administrators to position as teachers. The two plaintiffs appealed to the Court of Common Pleas from the defendant board’s refusal to review their administrative contracts. In dismissing their appeals, the Supreme Court noted the oft-cited law that there is no inherent right to judicial review of administrative actions and that appeals to the courts from administrative boards may be taken only under statutory authority. It further held that the only Connecticut statute authorizing appeals from decisions of school boards is the Teacher Tenure Act, General Statutes § 10-151 (f). Delagorges v. Board of Education, 176 Conn. 630, 633, 410 A.2d 461 (1979). The court then went on to state that “[ujnder the Teacher Tenure Act, judicial review is afforded to school board actions that ‘terminate’ the employment of a tenured school teacher.” Id., 634. The Supreme Court then proceeded to uphold the dismissals of the plaintiffs’ appeals, stating that the question was the plaintiffs’ invocation of General Statutes § 10-151 (f) when they were terminated as administrators but were retained as teachers. The court concluded that the plaintiffs had not acquired tenure as administrators and thus were not entitled to appeal. This brief summary of Delagorges illustrates that although the statement that “judicial review is afforded to school board actions that ‘terminate’ the unemployment of a tenured school teacher” is a correct statement of the law as far as it goes, it does not answer the question posed by the plaintiff as to whether a tenured teacher who was suspended after a termination hearing has a right of appeal.

To answer this question, we must look to the statute itself. In doing so, we follow well trod paths. We must interpret a statute according to its plain and ordinary meaning; Mazur v. Blum, 184 Conn 116, 118, 441 A.2d 65 (1981); and where possible, statutes must be construed to avoid conflicts between them; Berger v. Tonken, 192 Conn. 581, 590, 473 A.2d 782 (1984); and to avoid irrational or nonsensical results. Dukes v. Durante, 192 Conn. 207, 214, 471 A.2d 1368 (1984).

General Statutes § 10-151 (f) provides for an appeal by an aggrieved person after a hearing as provided in subsection (d) of that section. That section concerns termination and makes no mention of suspension. A subsection (d) hearing is not required when a school board is only considering suspension without pay as distinguished from termination. Such a claimed right of appeal could be defeated if the board did not provide a subsection (d) hearing. The result of the plaintiff’s interpretation of the two sections would be that certain tenured teachers would be entitled to an appeal after a suspension while others would not, depending on whether a pre-suspension hearing on termination was held. We decline to read such an incongruous result into the statutory language.

Lastly, the plaintiff claims that “pernicious results” would ensue from the denial of the right of appeal in cases such as this one. She argues that boards of education could avoid the protections afforded by the Teacher Tenure Act by holding the statutorily required hearing on termination and then imposing an unreasonably long suspension without pay, thus having the effect of a constructive or de facto termination. In Setterlund v. Gordon-Dunstable Regional School Committee, 382 Mass. 328, 415 N.E.2d 214 (1981), the Supreme Judicial Court of Massachusetts, in holding that a tenured teacher who has been reduced to part-time employment without his consent has been “dismissed” for purposes of an appeal, expressed such concern. “ ‘[Limiting the application of “removed” or “dismissed” to instances of complete termination would—as a practical matter—totally obliterate the protection intended by the statute [concerning teacher tenure]. If this were the case, a board could merely nibble away and reduce one’s employment until economic necessity forced the tenured teacher to resign.’ ” Id., 332.

We decline to extend the reasoning of Setterlund to this case for three reasons. First, being reduced, apparently permanently, to part-time rather than full-time employment has more of the effect of a termination than does the suspension in this case after which the former full-time tenured employment is restored. Second, the Tucker II court, as previously cited, held that “[t]he suspension imposed was, as a matter of law, within our remand to the board.” The controlling significance of this statement must be viewed in the light of the remand in Tucker I, finding dismissal to be “exceedingly excessive punishment for the plaintiff’s misconduct.” Tucker I, supra, 581. Third, if the situation is as dire as the plaintiff claims it to be, the remedy, if any, lies with the elected representatives of the people who adopted the Teacher Tenure Act in the first place.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 10-151 (f) provides in pertinent part: “Any teacher aggrieved by the decision of a board of education after a hearing as provided in subsection (d) of this section may appeal therefrom ... to the superior court.”
      General Statutes § 10-151 (d) provides the procedure for the termination of a tenured teacher for any of six reasons.