author: SPEAR, J.

text:
    BRIAN SHERIDAN ET AL. v. JAMES DESMOND ET AL.
    (AC 15217)
    Heiman, Spear and Hennessy, Js.
    Argued April 21
    officially released July 15, 1997

      Stephen M. Feinstein, with whom were Rebecca L. Balzac, and, on the brief, Kyle Barnett, legal intern, for the appellant (defendant Dorothy Imhoff).

      Alan M. Doran, with whom, on the brief, was Bruce J. Corrigan, Jr., for the appellees (plaintiffs).
   Opinion

SPEAR, J.

The defendant Dorothy Imhoff appeals from the judgment of the trial court, rendered after a jury trial, in favor of the plaintiffs. On appeal, she claims that the trial court improperly denied her motion for a directed verdict because the plaintiffs failed to prove, in accordance with General Statutes § 34-51, that her partner’s tortious actions, which caused the plaintiffs’ losses, were within the scope of the partnership business or that she authorized his actions. We reverse the judgment of the trial court on the first three counts and affirm the judgment as to the fourth count.

The jury reasonably could have found the following facts. Dorothy Imhoff (defendant) and James Desmond, Sr. (Desmond), owned, as tenants in common, commercial property located at 25 Perry Avenue in Norwalk. The defendant authorized Desmond to manage the property and did not participate in the day-to-day operations of the business. The plaintiffs signed a one year lease for the property at 25 Perry Avenue commencing October 10, 1986. They operated a nightclub on the property.

Desmond owned a lot located at 41 Perry Avenue that adjoined 25 Perry Avenue, in which the defendant had no ownership interest. On July 21, 1989, Desmond began construction of a building on the lot at 41 Perry Avenue. During construction, a trench was dug that blocked the fire exit doors located at the rear of 25 Perry Avenue. On July 27,1989, the fire marshal ordered the plaintiffs’ club closed for a violation of the fire code resulting from the blocked exit doors. On September 22, 1989, after the trench was filled, the fire marshal informed the plaintiffs that they could reopen. On the same day, Desmond constructed barriers on 41 Perry Avenue that again blocked the plaintiffs’ fire exit doors.

The plaintiffs instituted an action seeking an injunction against Desmond. The injunction was granted, the barriers were removed, and the plaintiffs’ business reopened on November 4, 1989. The plaintiffs vacated the premises in December, 1989.

The following procedural history is relevant to this appeal. After Desmond’s death, the administrator of his estate was joined as a defendant. Thereafter, the action was 'withdrawn as against Desmond’s estate, and the plaintiffs filed a four count complaint against the defendant, alleging that the defendant and Desmond (1) intentionally and maliciously prevented them from operating their business, (2) breached their covenant of quiet enjoyment, (3) violated the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq., and (4) unlawfully withheld the plaintiffs’ security deposit. The jury returned a general verdict in favor of the plaintiffs in the amount of $44,000.

After the close of evidence, the defendant filed a motion for a directed verdict, arguing, inter alia, that the plaintiffs failed to prove that she was liable for Desmond’s wrongful acts pursuant to § 34-51. The trial court denied her motion and rendered judgment for the plaintiffs on the jury’s verdict. This appeal followed.

I

Before we address the merits of the defendant’s claim, we must first address the applicability of the general verdict rule. Under the general verdict rule, “if a jury renders a general verdict for one party, and no party requests interrogatories, an appellate court will presume that the jury found every issue in favor of the prevailing party.” Curry v. Burns, 225 Conn. 782, 786, 626 A.2d 719 (1993). “Thus, in a case in which the general verdict rale operates, if any ground for the verdict is proper, the verdict must stand; only if every ground is improper does the verdict fall.” Staudinger v. Barrett, 208 Conn. 94, 100, 544 A.2d 164 (1988).

The general verdict rale “rests on the sound policy of conservation of judicial resources, at both the appellate and trial levels. On the appellate level, the rule relieves an appellate court from the necessity of adjudicating claims of error that may not arise from the actual source of the jury verdict that is under appellate review. In a typical general verdict rule case, the record is silent regarding whether the jury verdict resulted from the issue that the appellant seeks to have adjudicated. . . . In the trial court, the rale relieves the judicial system from the necessity of affording a second trial if the result of the first trial potentially did not depend upon the trial errors claimed by the appellant. Thus, unless an appellant can provide a record to indicate that the result the appellant wishes to reverse derives from the trial errors claimed, rather than from the other, independent issues at trial, there is no reason to spend the judicial resources to provide a second trial.” (Citation omitted.) Curry v. Burns, supra, 225 Conn. 790.

In this case, we are able to determine that the result of the first trial was based, at least in part, on the defendant’s claim of error on appeal. In order to support a finding of liability on any of the first three counts, or any combination thereof, the plaintiffs were required to prove that Desmond’s actions were (1) within the scope of the partnership business or (2) authorized by the defendant. Count four of the complaint alleges that the defendant unlawfully withheld the plaintiffs’ security deposit and recovery under that count is not dependent on the jury’s finding that the defendant is vicariously liable for Desmond’s tortious actions. Pursuant to § 47a-21 (d) (2), recovery on the fourth count is limited to $8640 plus interest, an amount far less than the amount awarded. The jury’s verdict, therefore, must have been based on a finding in favor of the plaintiffs on at least one of the first three counts, but the plaintiffs proved none of those counts, as we discuss in part II. Accordingly, we do not apply the general verdict rule.

II

We turn next to the defendant’s claim that she was not liable for the tortious conduct of her partner and that the court should have granted her motion for a directed verdict. We agree.

“At the outset, we note the appropriate standard of review. In considering the trial court’s denial of a motion for a directed verdict, we view the evidence in the light most favorable to the prevailing party. . . . Nevertheless, a verdict will be set aside and judgment directed if we find that the jury could not reasonably and legally have reached their conclusion. ... A directed verdict is justified if on the evidence the jury could not reasonably and legally have reached any other conclusion.” (Citation omitted; internal quotation marks omitted.) Krondes v. O’Boy, 37 Conn. App. 430, 433, 656 A.2d 692 (1995). “While it is the jury’s right to draw logical deductions and make reasonable inferences from the facts proven ... it may not resort to mere conjecture and speculation. ... If the evidence would not reasonably support a finding of the particular issue, the trial court has a duty not to submit it to the jury.” (Citations omitted; internal quotation marks omitted.) DiDomizio v. Frankel, 44 Conn. App. 597, 600, 691 A.2d 594 (1997).

With this standard of review in mind, we turn now to the law concerning partnerships. Generally, “[rjules governing the liability of a principal for the tortious acts of his agent . . . have been held to apply to the liability of one copartner for the tortious action of another.” 68 C.J.S., Partnership § 168 (1950). The application of general principles of agency is in accord with the law of our state. See General Statutes § 34-42 (3).

Section 34-51, which is part of the Uniform Partnership Act, was codified in Connecticut in 1961. Pursuant to this statute, liability is imposed on a partner for the tortious acts of his partner only where (1) the act occurred in the ordinary course of the partnership’s business, or (2) the tortfeasor partner acts with the authority of his partner or partners. “The test of partners’ joint and several liability in tort is based on a determination whether the wrong was committed in behalf of and within the reasonable scope of the business of the partnership. If so, the partners are liable as joint tortfeasors. . . . But where the injury results from a wanton or willful act of one of the [partners], committed outside the agency of common business, then the [partner] doing the act and causing the injury is alone responsible, unless the act which constitutes the wanton or willful tort is authorized by the members of the partnership . . . .” 59A Am. Jur. 2d, Partnership § 650. “The connection with the partnership business or objective must rise above the level of mere speculation or surmise in order to establish a partnership purpose in the tortfeasor’s conduct.” Id., § 651.

A

We must first determine whether Desmond’s tortious actions occurred within the ordinary scope of partnership business. We conclude that they did not.

Our courts have yet to interpret the “ordinary course of the business” language contained in § 34-51. The defendant urges this court to adopt the factors set forth by the Massachusetts Supreme Judicial Court in Kansallis Finance Ltd. v. Fern, 421 Mass. 659, 659 N.E.2d 731 (1996). In Kansallis Finance Ltd., Stephen Jones and the four defendants were partners in a law firm. The plaintiff requested an opinion letter from Jones regarding a loan and lease financing transaction. Jones and others, not defendants in the case, conspired to defraud the plaintiff and provided an opinion letter on the law firm’s stationery that contained several intentional misrepresentations. The plaintiff sought to recover its losses from Jones and his coconspirators, but was unable to do so. The plaintiff then filed the underlying action against Jones’ law partners, alleging, inter alia, that they were liable for Jones’ actions because Jones acted within the scope of the partnership business when he caused the opinion letter to be issued. The trial court instructed the jury that in order to hold the defendants liable for Jones’ actions, Jones’ wrongful act “must have: (1) been the kind of thing a law partner would do; (2) occurred substantially within the authorized time and geographic limits of the partnership; and (3) been motivated at least in part by a purpose to serve the partnership.” (Internal quotation marks omitted.) Id., 662. The jury rendered a verdict in favor of the defendants and specifically found that, in issuing the opinion letter, Jones acted outside the scope of the partnership business. Id.

In answering a question certified to it from the United States Court of Appeals for the First Circuit, the Massachusetts Supreme Judicial Court held that the trial court’s jury instruction was a correct statement of law. Id., 670. We find the reasoning of the Kansallis Finance Ltd. court to be persuasive, especially in light of the fact that Massachusetts has also adopted the Uniform Partnership Act and has an identical statute to the one at issue here. Furthermore, its statutes also provide that the law of agency controls the interpretation of its partnership act. See Massachusetts Uniform Partnership Act, § 4 (3).

Application of these factors to the present case militates against a finding that Desmond’s tortious acts were taken in the ordinary course of partnership business. First, Desmond’s tortious actions are not the “kind of thing” a partner would do. The plaintiffs argue that “the eviction of tenants is in the ordinary course of business of real estate owners.” That may be true, and Desmond and the defendant did institute a summary process action to evict the plaintiffs from the property. An attempt at an illegal, forceful eviction, however, accomplished by erecting barriers to prevent egress from fire exit doors is not the “kind of thing” a partner would do. Second, Desmond’s actions did not occur within the geographic limits of the partnership. The barriers erected were not on the property owned by the partnership; rather, they were located on the property at 41 Perry Avenue. Finally, the plaintiffs failed to present evidence that Desmond’s actions were motivated by a purpose to serve the partnership. At trial, the plaintiffs opined that the only apparent reason for the erection of the barriers was to block their egress from the exit doors. They further testified that their relationship with Desmond had deteriorated and they believed he was acting out of vindictiveness. Moreover, when asked if Desmond’s actions benefited the property located at 25 Perry Avenue, the plaintiff Shawn Desmond responded in the negative. “[A]n intentional and wilful attack committed by [one partner], to vent his own spleen or malevolence against the injured person, is a clear departure from his employment and his principal or employer is not responsible therefor.” Vrabel v. Acri, 156 Ohio St. 467, 474, 103 N.E.2d 564 (1952).

Ordinarily, the determination of whether one is acting within the scope of partnership business is a question of fact. See, e.g., King v. Board of Education, 203 Conn. 324, 327, 524 A.2d 1131 (1987); 1 Restatement (Second), Agency § 228, comment (d) (1958). Where, however, it is clear that one is not acting within the scope of employment, the question becomes one of law. Id. We conclude, as a matter of law, that the jury could not reasonably have concluded that Desmond’s actions were in furtherance of the partnership business.

B

We must next determine whether the defendant authorized Desmond’s actions. We conclude that she did not.

The plaintiffs assert that the defendant’s general grant of authority to Desmond to run the partnership business supports the finding that Desmond acted within her authority when he dug the trenches and erected the barriers that blocked the plaintiffs’ fire exit doors. We disagree.

Generally, authority to manage a business includes authority “[1] to make contracts which are incidental to such business, are usually made in it, or are reasonably necessary in conducting it; [2] to procure equipment and supplies and to make repairs reasonably necessary for the proper conduct of the business; [3] to employ, supervise, or discharge employees as the course of business may reasonably require; [4] to sell or otherwise dispose of goods or other things in accordance with the purposes for which the business is operated; [5] to receive payment of sums due the principal and to pay debts from the principal arising out of the business enterprise; and [6] to direct the ordinary operations of the business.” 1 Restatement (Second), supra, § 73.

Desmond’s actions do not fit into any of those categories. Contrary to the plaintiffs’ assertion, a general grant of authority to manage a business does not encompass authority to commit an intentional tort.

The plaintiffs also assert that the defendant ratified Desmond’s actions by not acting to stop him when he erected the barriers. We are unpersuaded. Ratification is defined as “the affirmance by a person of a prior act which did not bind him but which was done or professedly done on his account . . . [requiring an] acceptance of the results of the act with an intent to ratify, and with full knowledge of all the material circumstances. . . . Russell v. Dean Witter Reynolds, Inc., 200 Conn. 172, 185, 510 A.2d 972 (1986).” (Citations omitted; internal quotation marks omitted.) Gerber & Hurley, Inc. v. CCC Corp., 36 Conn. App. 539, 542, 651 A.2d 1302 (1995). Here, the plaintiffs failed to prove that Desmond’s actions in digging the trench and erecting the barriers were done on the defendant’s account. Furthermore, the defendant testified that she did not intervene in Desmond’s actions because both the trench and barriers were located on his property, in which she did not have an ownership interest. The plaintiffs did not offer any evidence to the contrary and failed to adduce evidence from which the jury could have found that the defendant intended to ratify Desmond’s actions. Accordingly, we conclude that the jury could not reasonably have found that the defendant authorized or ratified Desmond’s actions.

Ill

Because we have already concluded that the general verdict rule does not apply here, we examine the fourth count of the amended complaint in isolation from the other three counts. The defendant does not assert or brief any claim with respect to the security deposit claim set out in the fourth count and the amount claimed is definite and finite. We conclude that we may properly presume that the jury found for the plaintiffs on the fourth count. Under these circumstances, we discern no reason why the verdict and judgment as to this unchallenged claim should not stand. To do otherwise would mean reversing a portion of the judgment as to which there is no claim of error and would unfairly force the plaintiffs to prove the claim again. This would be especially egregious because the defendant offered no evidence to controvert the fourth count and no legal argument to refute the claim. The plaintiffs are entitled to twice the value of the $4320 security deposit, $8640. They offered no evidence as to the proper rate of interest to be applied to this amount and the trial court did not instruct the jury on how to compute the interest. Consequently, $8640 is the maximum recovery.

The judgment is reversed as to counts one, two and three and the case is remanded with direction to render judgment in favor of the defendant Dorothy Imhoff on those counts and in favor of the plaintiffs in the amount of $8640 on count four.

In this opinion the other judges concurred.

       General Statutes § 34-51 provides: “Where, by any wrongful act or omission of any partner acting in the ordinary course of the business of the partnership or with the authority of his copartners, loss or injury is caused to any person, not being a partner in the partnership, or any penalty is incurred, the partnership is liable therefor to the same extent as the partner so acting or omitting to act.”

       The first three counts of the complaint are based on Imhoff s alleged liability for the tortious acts of her partner. We address those counts in part II of this opinion. The fourth count is based on a claimed failure to return the plaintiffs’ security deposit and is discussed in part III herein.

       Although Desmond was originally named as a defendant in this case, the plaintiffs withdrew their case against him prior to trial.

       Imhoff was not named as a party defendant in the injunction action.

       On November 4, 1988, the defendant and Desmond served a notice to quit on the plaintiffs based on the expiration of the lease. A summary process trial was held in July, 1989, and a judgment of possession was rendered in favor of the defendant and Desmond. That judgment was affirmed in Desmond v. Sheridan, 23 Conn. App. 811, 581 A.2d 285 (1990).

       General Statutes § 47a-21 (d) (2) provides in relevantpart: “Upon termination of a tenancy, any tenant may notify Ms landlord in writing of such tenant’s forwarding address. Within thirty days after termination of a tenancy, each landlord other than a rent receiver shall deliver to the tenant or former tenant at such forwarding address either (A) the full amount of the security deposit paid by such tenant plus accrued interest as provided in subsection (i) of tMs section, or (B) the balance of the security deposit paid by such tenant plus accrued interest as provided in subsection (i) of this section after deduction for any damages suffered by such landlord by reason of such tenant’s failure to comply with such tenant’s obligations, together with a written statement itemizing the nature and amount of such damages. Any such landlord who violates any provision of this subsection shall be liable for twice the amount or value of any security deposit paid by such tenant . . . .”

       General Statutes § 34-42 (3) provides: “The law of agency shall apply under this chapter.”

       The defendant also urges this court to rely on Gramercy Equities Corp. v. Dumont, 72 N.Y.2d 560, 531 N.E.2d 629, 534 N.Y.S.2d 908 (1988). That case, however, is concerned only with whether a joint venturer who committed an intentional fraud against a third party is entitled to indemnification from the other joint venturer. The test applied by the New York Court of Appeals was not whether the fraudulent act occurred during the ordinary course of business; rather, the court asked whether the act occurred in the “ordinary and proper conduct” of the partnership business. (Emphasis in original.) Id., 565. This was the relevant question because the statute governing indemnification between partners required that the conduct not only be in the ordinary course of business, but that the conduct be proper as well.

       Both the trial court and the jury found that although Jones did not sign the letter, he arranged for a third party to do so and adopted or ratified the issuance of the letter.

       In determining the propriety of the trial court’s instructions to the jury, the Kansallis Finance Ltd. court looked to 1 Restatement (Second), Agency § 228 (1) (1958), which provides: “(1) Conduct of a servant is within the scope of employment if, but only if: (a) it is of the kind he is employed to perform; (b) it occurs substantially within the authorized time and space limits . . . (c) it is actuated, at least in part, by a purpose to serve the master, and (d) if force is intentionally used by the servant against another, the use of force was not unexpectable by the master.” Subsection (2) further provides: “Conduct of a servant is not within the scope of employment if it is different in kind from that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the master.”

       Mass. Gen. Laws ch. 108A, § 13 provides: “Where, by any wrongful act or omission of any partner acting in the ordinary course of the business of the partnership, or with the authority of his co-partners, loss of injury is caused to any person, not being a partner in the partnership, or any penalty is incurred, the partnership is liable therefor to the same extent as the partner so acting or omitting the act.”

       The plaintiffs incorporated the first three counts of the amended complaint as part of the fourth count. The allegations in support of the security deposit claim are set out as a separate cause of action, therefore, the allega.tions as to the first three counts are merely surplusage. See Edwards v. Tardif, 240 Conn. 610, 621, 692 A.2d 1266 (1997).

       See footnote 6.

       General Statutes §47a-21 (i) provides: “(1) On and after July 1, 1993, each landlord other than a landlord of a residential unit in any building owned or controlled by any educational institution and used by such institution for the purpose of housing students of such institution and their families, and each landlord or owner of a mobile manufactured home or of a mobile manufactured home space or lot or park, as such terms are defined in subdivisions (1), (2) and (3) of section 21-64, shall pay interest on each security deposit received by him at a rate of not less than the average rate paid, as of December 30, 1992, on savings deposits by insured commercial banks as published in the Federal Reserve Board Bulletin rounded to the nearest one-tenth of one percentage point, except in no event shall the rate be less than one and one-half per cent. On and after January 1, 1994, the rate for each calendar year shall be not less than the deposit index, as defined in subdivision (2) of this subsection, for that year, except in no event shall the rate be less than one and one-half per cent. On the anniversary date of the tenancy and annually thereafter, such interest shall be paid to the tenant or resident or credited toward the next rental payment due from the tenant or resident, as the landlord or owner shall determine. If the tenancy is terminated before the anniversary date of such tenancy, or if the landlord or owner returns all or part of a security deposit prior to termination of the tenancy, the landlord or owner shall pay the accrued interest to the tenant or resident within thirty days of such termination or return. In any case where a tenant or resident has been delinquent for more than ten days in the payment of any monthly rent, he shall forfeit any interest which would otherwise be payable to him for that month, except that there shall be no such forfeiture if, pursuant to a provision of the rental agreement, a late charge is imposed for failure to pay such rent within the time period provided by section 47a-15a. No landlord or owner shall increase the rent due on any quarters or property subject to the provisions of this section because of the requirement that interest be paid on any security deposit made with respect to such quarters or property.”


source: Caselaw Access Project

author: HARRIGAN, J.

license: Public Domain

text:
    ROBERT GARDNER v. MAUREEN FALVEY
    (AC 15237)
    Foti, Schaller and Harrigan, Js.
    Argued February 21
    officially released July 15, 1997

      Michael R. Hasse, with whom were Matthew Greene and, on the brief, Richard T. Miller, for the appellant (defendant).

      Nancy M. O’Neill, for the appellee (plaintiff).
   Opinion

HARRIGAN, J.

This appeal arises out of an action for adjudication of paternity and visitation rights. The defendant appeals from the order of the trial court granting three hours of unsupervised visitation per week to the plaintiff. The sole issue raised by the defendant is whether the trial court abused its discretion by not appointing an attorney for the minor child. Although the appeal form states that the appeal is from the “Motion for Visitation,” the defendant challenges the trial court’s denial of her oral motion to appoint an attorney for the minor child made at the hearing on the visitation motion. We conclude that, because the trial court granted a motion for reargument filed by the defendant on this issue, but never heard the reargument, the appeal must be dismissed for lack of a final judgment.

The parties, who never married, had one child in 1988. The plaintiff, Robert Gardner, filed a complaint seeking an adjudication of paternity and both pendente lite and permanent visitation. On August 3, 1995, the defendant filed a motion for custody pendente lite, which was granted by the trial court after a hearing on visitation held on September 18,1995. At the conclusion of all of the testimony, but before the trial court ruled on the visitation schedule, the defendant moved the court to appoint an attorney for the child. The trial court indicated that it did not need to hear closing arguments to decide the issue of visitation. The trial court orally denied the defendant’s motion to appoint counsel for the minor child and awarded the plaintiff three hours of unsupervised visitation per week. That judgment of unsupervised visitation pendente lite of September 18, 1995, is the judgment being appealed.

The defendant filed the appeal on September 27,1995. One day later, on September 28, she filed a motion for reargument of the plaintiffs motion for visitation, claiming in the body of the motion that her motion for the appointment of counsel for the child was improperly denied. The trial court granted the defendant’s motion for reargument. No reargument, however, ever occurred. Subsequently, the parties filed several other motions. The defendant filed a motion for stay of execution of the visitation order on September 28,1995, until reargument on the plaintiffs motion for visitation, which the trial court denied. On October 10, 1995, the plaintiff filed a motion for judgment of paternity. On October 20, 1995, the plaintiff filed a motion for contempt and a motion for attorney’s fees. The plaintiffs motion for judgment of paternity was granted in accordance with a stipulation made by the parties dated November 6, 1995. The stipulation provided that, in addition to the visitation ordered by the court, the parties would meet with a therapist once a week in order to facilitate visitation. The stipulation, however, does not make any mention of the claim regarding counsel for the minor child, or of the motion for reargument of the plaintiffs motion for visitation, which essentially concerned the alleged necessity for counsel for the child.

We conclude that the last line of the stipulation, “[a]ll other motions shall go off without prejudice,” does not refer to the reargument hearing. The only motions pending at the time of the stipulation were the plaintiffs motions for contempt and for attorney’s fees. The motion for reargument had already been granted. It was, therefore, not a pending motion that could “go off.” Since there was no disposition of the reargument, the controversy is not ripe for our review, and there is no final judgment. See State v. Curcio, 191 Conn. 27, 29-30, 463 A.2d 566 (1983).

The appeal is dismissed.

In this opinion the other judges concurred.

       The stipulation states as follows: “It is hereby stipulated and agreed that the parties will, in addition to the present visitation order of the court, meet with Paula Keavy of Psychiatric Associates of 391 Ocean Ave., New London, CT., at least once weekly, for therapeutic sessions to facilitate visitation. Should [the plaintiff] decide that he would prefer to involve a different therapist, other than Paula Keavy, he may do so and [the defendant] will cooperate fully to make herself . . . available for the therapy. This therapy shall continue for a period of seven weeks, in addition to the unsupervised visitation as ordered by the court, which visitation shall continue indefinitely as ordered by the court.
      “The defendant shall seek an extension of time to further process the pending appeal in this matter.
      “The motion for judgment shall be proved by agreement on Nov. 6, 1995. All other motions shall go off without prejudice.”

       After the trial court granted the motion for reargument, there were further proceedings in that court likely to affect the rights of the parties. This is true of the minor child in particular because the trial court has not yet resolved the question of whether the minor child needs to have her own counsel appointed. Since this is the only issue briefed on appeal, we cannot address it before the trial court has heard the reargument and renders a decision.


author: LANDAU, J.

text:
    J AND B CONSTRUCTION AND CONTRACTING SERVICES, INC. v. ZONING BOARD OF APPEALS OF THE CITY OF HARTFORD ET AL.
    (AC 15910)
    Dupont, C. X, and Landau and Hennessy, Js.
    Argued February 24
    officially released July 15, 1997

      Jill Hartley, with whom was Randall J. Sabia, for the appellant (plaintiff).

      Ivan A. Ramos, with whom, on the brief, was Kevin G. Dubay, corporation counsel, for the appellee (named defendant).

      John F. McKenna, with whom, on the brief, was Rebecca B. Lamont, for the appellee (defendant Connecticut Prison Association).
   Opinion

LANDAU, J.

The plaintiff, J and B Construction and Contracting Services, Inc., appeals from the judgment of the trial court dismissing its appeal from the decision of the defendant Hartford zoning board of appeals (board), which granted the application of the defendant Connecticut Prison Association, for a variance from the city of Hartford zoning ordinances. On appeal, the plaintiff claims that the trial court improperly (1) found that the prison association had standing to apply for the variance and (2) failed to find that the board acted arbitrarily, illegally or abused its discretion in concluding that a hardship existed.

A review of the following facts found by the court, which are undisputed by the parties, facilitates an understanding of the issues in this appeal. The property that is the subject of this appeal consists of four vacant office buildings located at 117-123 Washington Street in Hartford. The buildings have been vacant for approximately ten years and are in a neighborhood of various land uses including state offices, courthouses, multifamily dwellings, businesses and other residences converted to office use. In March, 1995, the prison association applied for a variance permitting it to use the buildings as rehabilitation homes, as defined in the Hartford zoning code. The prison association requested the variance because 117-123 Washington Street is situated in a residential-office zone (RO-1), in which rehabilitation homes are not permitted, and the property does not meet the minimum side and rear lot requirements for rehabilitation homes imposed by the Hartford zoning code. At the time of the application, the prison association was not the record owner of the property nor did it have any formal leasehold interest in the premises. It intended to enter into a formal rental agreement with the owner, Sun Life Insurance of America, Inc. (Sim Life), upon final approval of the variance.

The application lists the prison association as the applicant and Sun Life as the owner of the property. On April 4, 1995, the board held a public hearing on the prison association’s application. On April 7, 1995, the board granted the application. On April 24, 1995, the plaintiff challenged the board’s decision by filing an appeal with the trial court naming the board and the prison association as defendants. The plaintiff argued that, because the prison association was neither the owner nor lessee of the property, it lacked standing to seek a variance and, further, that it failed to demonstrate the hardship required to obtain a variance. The trial court found that the prison association had standing because it was a real party in interest due to its future right of possession and that sufficient hardship existed. The trial court, therefore, dismissed the plaintiffs appeal. The plaintiff filed a petition for certification to appeal to this court, which was granted on April 10, 1996.

Before we reach the plaintiffs claims, we must first determine whether the proper parties were before the trial court. The defendant board argues that the dismissal of this appeal should be sustained on the alternate ground that Sun Life was an indispensable party to this action and was not joined in the trial court. It has been well established that parties are “indispensable when they not only have an interest in the controversy, but an interest of such a nature that a final decree cannot be made without either affecting that interest, or leaving the controversy in such condition that its final [disposition] may be . . . inconsistent with equity and good conscience.” (Internal quotation marks omitted.) Napoletano v. CIGNA Healthcare of Connecticut, Inc., 238 Conn. 216, 225 n.10, 680 A.2d 127 (1996), cert. denied, 520 U.S. 1103, 117 S. Ct. 1106, 137 L. Ed. 2d 308 (1997), quoting Sturman v. Socha, 191 Conn. 1, 6, 463 A.2d 527 (1983). In Fong v. Planning & Zoning Board of Appeals, 212 Conn. 628, 633, 563 A.2d 293 (1989), our Supreme Court concluded that an applicant who receives a favorable decision from a planning and zoning board of appeals is a necessary and indispensable party to an appeal by persons aggrieved by the decision “because were the appeal to be sustained the result would be the invalidation and deprivation of rights granted to the applicant by the zoning board.” (Internal quotation marks omitted.) See also Shulman v. Zoning Board of Appeals, 143 Conn. 182, 183, 120 A.2d 550 (1956); Kuehne v. Town Council, 136 Conn. 452, 462, 72 A.2d 474 (1950); Devaney v. Board of Zoning Appeals, 132 Conn. 218, 220, 43 A.2d 304 (1945).

Here, the application lists the prison association as the applicant and Sun Life as the owner of the property. The record reflects that the board referred to this matter as “case number 3: Connecticut Prison Association/Sun Life Insurance of America requesting variances . . . .” Further, notice of the subsequently granted variance has been filed in the Hartford land records and lists Sun Life as the owner of the property. By virtue of the board’s granting of the variance, Sun Life acquired a special interest in the subject matter of any appeal resulting from the proceeding that might deprive it of the benefit of the outcome before the board. See Fong v. Planning & Zoning Board of Appeals, supra, 212 Conn. 633-34. We conclude, therefore, that Sun Life was an indispensable party to the appeal from the board’s decision.

Having concluded that Sun Life was an indispensable party, we must determine whether this case should be dismissed or remanded for further proceedings. In Fong v. Planning & Zoning Board of Appeals, supra, 212 Conn. 635, the court further concluded that the failure to join an indispensable party does not result in a lack of subject matter jurisdiction and require dismissal of the appeal. The court distinguished the situation where a statute that authorizes the appeal requires a designated party to be made a party, concluding that the failure to include such a party constituted noncompliance with its terms and, thus, involved subject matter jurisdiction. See Simko v. Zoning Board of Appeals, 205 Conn. 413, 421, 533 A.2d 879 (1987), modified, 206 Conn. 374, 538 A.2d 202 (1988). Relying, inter alia, on General Statutes § 52-108 and Practice Book § 100, which prohibit the defeat of an action for nonjoinder and misjoinder of parties, the court ordered that the case be remanded to the trial court for the purpose of a new trial with the proper parties.

In the present case, Sun Life was an indispensable party to the appeal, and, similar to the applicant in Fong, its presence in the appeal was not statutorily mandated. Accordingly, we remand the case for a new trial of the appeal with the proper parties. As a result, we do not reach the merits of the appeal.

The judgment is reversed and the case is remanded so that the proper parties may be joined and for a new trial.

In this opinion the other judges concurred.

       The prison association is a not-for-profit organization that provides residential, supportive and rehabilitative services to persons charged with or convicted of certain types of less serious criminal offenses. Approximately 90 percent of the prison association’s clients are Hartford residents. The prison association proposes to use the buildings both as a residence for some of its clients and as a center for educational, rehabilitative and vocational services.

       Section 35-2 of the Hartford zoning code defines a rehabilitation home as “a dwelling housing a group of persons during a period in which such persons are being housed for periods of more than one (1) day in that dwelling for the primary purpose of undertaking aprogram of social rehabilitation or other similar program.”

       In its brief submitted to the trial court, the prison association averred that, at the time of the application, Pinnacle Realty had an option to purchase the premises from the owner, that Pinnacle Realty had entered into lease negotiations with the prison association and that it had authorized the prison association to act on its behalf. No option agreement was ever offered into evidence nor was the relationship disclosed to the board prior to the granting of the variance.

       The prison association states in its brief that Pinnacle Realty is the current owner of the property. If, in fact, Pinnacle Realty is the owner of the property, then it is an indispensable party to this appeal. It is well settled that a variance runs with the land and is not personal in nature. General Statutes § 8-6 (b) provides: “Any variance granted by a zoning board of appeals shall run with the land and shall not be personal in nature to the person who applied for and received the variance. A variance shall not be extinguished solely because of the transfer of title to the property or the invalidity of any condition attached to the variance that would affect the transfer of the property from the person who initially applied for and received the variance.” See Reid v. Zoning Board of Appeals, 235 Conn. 850, 858, 670 A.2d 1271 (1996).


author: FOTI, J.

text:
    STANLEY DORSEY v. UNITED TECHNOLOGIES CORPORATION/NORDEN SYSTEMS, INC., ET AL.
    (AC 16378)
    Foti, Schaller and Hennessy, Js.

      Argued April 29
    officially released July 15, 1997

      Lindalea P. Ludwick, for the appellant (plaintiff).

      Jason M. Dodge, for the appellees (defendant Cigna Property and Casualty Company et al.).

      Maureen E. Driscoll, with whom, on the brief, was Scott Wilson Williams, for the appellees (defendant Liberty Mutual Insurance Company et al.).
   Opinion

FOTI, J.

The plaintiff appeals from the judgment of the workers’ compensation review board (board) reversing the commissioner’s decision granting the plaintiffs claim for compensation benefits. On appeal, the plaintiff claims that the board improperly (1) applied the one year statute of limitations, (2) failed to extend the statute of limitations for a repetitive trauma claim beyond one year from the date of last exposure where there is no known manifestation of an injury within the one year period, (3) denied the plaintiffs rights to due process, and (4) reversed the commissioner’s finding and order. We affirm the judgment of the board.

The commissioner found the following facts. The plaintiff was employed by the named defendant from 1971 until his retirement on March 11, 1990. He worked as a powerhouse operator and also worked in the air conditioning facility, in which he was exposed to loud equipment on a daily basis. The first time that he was aware he was suffering a hearing loss and that it could have been caused by his work was on or about January 5, 1993. The last date of his exposure to the noise and his last day of work was March 11, 1990. On January 14, 1993, the plaintiff filed a claim alleging a hearing loss arising from his employment with the named defendant from March 8, 1971, to March 11, 1990, stating that the date of diagnosis of the hearing loss was January 5, 1993.

The commissioner found that the plaintiffs notice of claim was timely filed. The board, by majority, reversed the commissioner’s decision and determined that the claim should have been dismissed for failure to file notice within one year following the date of last exposure pursuant to General Statutes § 31-294c (a).

“Our standard of review of the board’s determination is clear. [T]he [board’s] hearing of an appeal from the commissioner is not a de novo hearing of the facts. Although the [board] may take additional material evidence, this is proper only if it is shown to its satisfaction that good reasons exist as to why the evidence was not presented to the commissioner. Otherwise, it is obliged to hear the appeal on the record and not retry the facts. . . . [T]he power and duty of determining the facts rests on the commissioner, the trier of facts. . . . The conclusions drawn by him from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. . . . Six v. Thomas O’Connor & Co., [235 Conn. 790, 798-99, 669 A.2d 1214 (1996)].” (Internal quotation marks omitted.) Williams v. Best Cleaners, Inc., 237 Conn. 490, 500-501, 677 A.2d 1356 (1996).

To resolve the plaintiffs claims on appeal, we must determine whether the plaintiffs lack of knowledge regarding a repetitive trauma injury extends the one year statute of hmitations for filing a notice of claim beyond one year after the last date of exposure.

There is no question that hearing loss is a type of repetitive trauma not specifically referenced in the relevant portion of the statute of limitations, which provides: “No proceedings for compensation . . . shall be maintained unless a written notice of claim ... is given within one year from the date of the accident or within three years from the first manifestation of a symptom of the occupational disease, as the case may be, which caused the personal injury . . . .” General Statutes § 31-294c (a). Personal injury is defined to include “in addition to accidental injury ... an injury to an employee which is causally connected with his employment and is the direct result of repetitive trauma or repetitive acts incident to such employment, and occupational disease.” General Statutes § 31-275 (16) (A).

“[T]he date of injury is either the last day of exposure to the work related incidents of repetitive trauma or the date of the accident.” Discuillo v. Stone & Webster, 43 Conn. App. 224, 226-27, 682 A.2d 145, cert. granted, 239 Conn. 953, 688 A.2d 325 (1996). “The last day of exposure is usually the last day of employment.” Id., 227. There is no question that § 31-294 provides a one year statute of limitations for an accidental injury, regardless of a plaintiffs knowledge of a causal relationship to his or her employment. Keegan v. Aetna, Life & Casualty Ins. Co., 42 Conn. App. 803, 806-807, 682 A.2d 1321, cert. denied, 239 Conn. 942, 686 A.2d 120 (1996). We conclude that the statute of limitations in repetitive trauma cases runs one year from the date of last injurious exposure, regardless of when the plaintiff developed knowledge that the injury resulted from his employment. See Discuillo v. Stone & Webster, supra, 226-27; see also Keegan v. Aetna Life & Casualty Ins. Co., supra, 808.

The plaintiff also claims that the board, in applying the one year provision of the statute to run from the last day of exposure rather than from the first known manifestation of an injury, violated his rights to due process and access to the courts. We do not agree. “There is no reason, constitutional or otherwise, which prevents the legislature from enacting a statute, such as [§ 31-294c (a)], which starts the limitation on [claims] for [workers’ compensation benefits] from the date of the [injury] complained of, even though at that date no person has sustained damage and therefore no cause of action has come into existence. Indeed, such aprovision accords with the purposes of statutes of limitation. . . .” (Citation omitted; internal quotation marks omitted.) Keegan v. Aetna Life & Casualty Ins. Co., supra, 42 Conn. App. 810.

The decision of the compensation review board is affirmed.

In this opinion the other judges concurred.

       The board’s judgment was by majority vote with chairman Jesse M. Frank! dissenting.

       In addition to the named defendant, Liberty Mutual Insurance Company and Cigna Property and Casualty Company are also defendants.

       General Statutes § 31-294c (a) provides: “No proceedings for compensation under the provisions of this chapter shall be maintained unless a written notice of claim for compensation is given within one year from the date of the accident or within three years from the first manifestation of a symptom of the occupational disease, as the case may be, which caused the personal injury, provided, if death has resulted within two years from the date of the accident or first manifestation of a symptom of the occupational disease, a dependent or dependents, or the legal representative of the deceased employee, may make claim for compensation within the two-year period or within one year from the date of death, whichever is later. Notice of a claim for compensation may be given to the employer or any commissioner and shall state, in simple language, the date and place of the accident and the nature of the injury resulting from the accident, or the date of the first manifestation of a symptom of the occupational disease and the nature of the disease, as the case may be, and the name and address of the employee and of the person in whose interest compensation is claimed. An employee of the state shall send a copy of the notice to the Commissioner of Administrative Services. As used in this section, ‘manifestation of a symptom’ means manifestation to an employee claiming compensation, or to some other person standing in such relation to him that the knowledge of the person would be imputed to him, in a manner that is or should be recognized by him as symptomatic of the occupational disease for which compensation is claimed.”

       The plaintiff also claims a violation of his rights under article first, § 10, of the Connecticut constitution. The plaintiff offers no separate analysis for his state constitutional claim, and, therefore, we will not review it. See State v. Kiser, 43 Conn. App. 339, 353-54, 683 A.2d 1021, cert. denied, 239 Conn. 686 A.2d 122 (1996).


text:
    MICHAEL SACCARDI v. BOARD OF EDUCATION OF THE CITY OF STAMFORD ET AL.
    (AC 15790)
    Foti, SchaUer and Spear, Js.

      Argued April 28
    officially released July 15, 1997

      Saul A. Rothman, for the appellant (plaintiff).

      Charles L. Howard, with whom were Sheila, A. Huddleston and, on the brief, Kimberly A. Mango, for the appellees (defendants).
   Opinion

SPEAR, J.

The plaintiff, a former high school basketball coach, appeals from the judgment of the trial court dismissing his complaint for lack of subject matter jurisdiction. The principal issue is whether the trial court had jurisdiction to decide the plaintiffs claim that the defendant board of education’s (board) refusal to hire him as a coach violated an agreement between the plaintiff and the board not to discipline him further for earlier alleged recruiting violations. The resolution of that issue turns on whether the plaintiff was required to utilize all of the remedies available to him pursuant to a collective bargaining agreement before resorting to court proceedings.

The plaintiff asserts that the trial court had subject matter jurisdiction because his claims are based on an independent separate agreement between him and the board that was beyond the purview of the collective bargaining agreement. In the alternative, the plaintiff claims that the court had jurisdiction because (1) the collective bargaining agreement does not state that the remedies thereunder are exclusive and (2) he should be deemed to have exhausted the remedies of the collective bargaining agreement because the final step of nonbinding arbitration would have been futile and such final step could be taken only by the union and it refused to do so. We conclude that the trial court did not have subject matter jurisdiction and affirm the judgment dismissing the action.

The following factual and procedural history is gleaned from the record. The plaintiff is a teacher in the Stamford public school system and is a member of the Stamford Education Association, the collective bargaining agent for teachers in the Stamford public school system. In 1989, the Connecticut Interscholastic Athletic Conference, Inc., fined the Stamford school system and placed its athletic program on three years probation as a result of the determination by the conference that the plaintiff had violated recruiting and other conference rules.

The plaintiff entered into a settlement agreement with the board dated December 22,1989, whereby the plaintiff, although admitting to no violations, agreed to pay $500 of the conference fine and to serve out the remainder of his then coaching assignment on probation. The plaintiff also agreed to reimburse Westhill High School $235 for certain expenditures made for the participation of his team or certain team members in the summer league. In return, the board promised that it would not otherwise discipline him.

The plaintiff applied for various coaching and assistant coaching positions between 1991 and 1994. He was unsuccessful in obtaining any of the positions and filed an action in the Superior Court, claiming that the board’s refusal to hire him constituted discipline in violation of the December, 1989 agreement. The plaintiff initially sought a temporary injunction to enforce the terms of the agreement and also sought money damages. The application for a temporary injunction was denied and, thereafter, the board filed a motion to dismiss the plaintiffs action for lack of subject matter jurisdiction because this dispute was subject to the grievance procedures of the collective bargaining agreement. The trial court granted the motion to dismiss and this appeal followed.

I

The plaintiff claims that the December, 1989 agreement furnishes an independent basis for his action because it is not part of the collective bargaining agreement. He claims that his rejection for each of the six coaching positions was based on the alleged earlier recruiting violations and thus constituted “further discipline” in breach of the December, 1989 agreement.

“It is well settled under both federal and state law that, before resort to the courts is allowed, an employee must at least attempt to exhaust exclusive grievance and arbitration procedures, such as those contained in the collective bargaining agreement between the defendant and the plaintiffs’ union. . . . Failure to exhaust the grievance procedures deprives the court of subject matter jurisdiction. . . . The purpose of the exhaustion requirement is to encourage the use of grievance procedures, rather than the courts, for settling disputes. A contrary rule which would permit an individual employee to completely sidestep available grievance procedures in favor of a lawsuit has little to commend it. . . . [I]t would deprive employer and union of the ability to establish a uniform and exclusive method for orderly settlement of employee grievances. If a grievance procedure cannot be made exclusive, it loses much of its desirability as a method of settlement. A rule creating such a situation would inevitably exert a disruptive influence upon both the negotiation and administration of collective [bargaining] agreements.” (Citation omitted; internal quotation marks omitted.) Hunt v. Prior, 236 Conn. 421, 431-32, 673 A.2d 514 (1996).

In support of his claim, the plaintiff relies primarily on Cahill v. Board of Education, 187 Conn. 94, 444 A.2d 907 (1982). In Cahill, the Supreme Court rejected the board of education’s contention that sovereign immunity bars a teacher’s suit for breach of contract against a local board of education. Id., 102. The Supreme Court held that “[a] local board of education is bound by and may sue or be sued on contracts in the same manner as municipal corporations.” Id. The Supreme Court also ruled that the plaintiff had not failed to exhaust her administrative remedies because her claim was based on an alleged breach of an agreement between the plaintiff and the board of education to return her to a position of “ ‘like nature, seniority, status and pay’ ” when she returned from her sabbatical leave. Id., 105. The coflective bargaining agreement did not provide for the kind of transfer about which the plaintiff complained. The court stated that “[although the agreement specifically provided that changes in assignment ‘within a building unit’ were subject to appeal through the grievance procedure, no similar allowance was made for teacher transfers. Thus, the plaintiffs only remedy for contesting the defendant’s decision to transfer her was the court process. The trial court properly assumed jurisdiction.” Id., 104. Cahill is inapposite because, in the present case, the plaintiffs claims can be addressed through the grievance and arbitration procedures provided in the collective bargaining agreement. A May 14, 1991 memorandum of agreement, part of the collective bargaining agreement, specifically addresses the selection of coaches.

In this case, the plaintiff is complaining about the collateral consequences of the settlement agreement. There is nothing in the settlement agreement between the plaintiff and the board that precludes consideration of the allegations, as well as the rest of the plaintiffs employment history, in the event the plaintiff applies for coaching positions. Nor is there anything in the agreement that provides that the plaintiffs personnel file was to be purged of any reference to the alleged violations.

The plaintiff seeks to place his claims outside the purview of the collective bargaining agreement simply by labeling the acts of the board and the other defendants as disciplinary and thus in violation of the December 1989 agreement. This court has stated that “[t]he plaintiff may not choose [his] administrative remedy through the framing of [his] own complaint. If that were possible, the purpose of the exhaustion doctrine would be thwarted.” Savoy Laundry, Inc. v. Stratford, 32 Conn. App. 636, 642, 630 A.2d 159, cert. denied, 227 Conn. 931, 632 A.2d 704 (1993).

The gravamen of the plaintiffs complaint is that he was the most qualified candidate for each job, but was not selected in violation of the memorandum of agreement as to the selection of coaches. This is precisely the kind of complaint that the collective bargaining agreement grievance procedures were designed to handle.

II

The plaintiff makes three alternative claims in the event that we are unpersuaded by his first claim. He contends that (1) the collective bargaining agreement does not provide for exclusive remedies, (2) the final step in the collective bargaining agreement procedures would have been futile and (3) in any event, the union refuses to take the final step of nonbinding arbitration.

A

The plaintiff asserts that “where the collective bargaining agreement does not provide that it is the exclusive remedy then the exhaustion doctrine does not apply.” He relies on School Administrators Assn. v. Dow, 200 Conn. 376, 511 A.2d 1012 (1986), in support of this proposition.

In Dow, the individual plaintiffs and their union brought suit to enjoin the board from eliminating certain administrative positions and from dismissing ten individuals. Our Supreme Court stated that “[t]he complaint alleged that the defendants acted unfairly, violated the parties’ collective bargaining agreement, violated state statutory procedures, and violated the plaintiffs’ constitutional rights to due process and equal protection. Despite the multiple allegations made, the complaint is not unlike those usually brought for employee grievances and essentially seeks relief for harms occurring in the context of an employer-employee relationship. . . . Given the broad wording of the grievance provisions of the collective bargaining agreement, we have no doubt that the relief requested in this case is within the scope of the contractual remedies available. . . . The plaintiffs therefore should have pursued their claims under the grievance-arbitration provisions of their collective bargaining agreement before seeking redress in state court.” (Citations omitted.) Id., 382-83.

Although the principal holding of Dow militates against the plaintiffs assertions, he relies on footnote 5 of that opinion. The language in footnote 5 of Dow is derived from Republic Steel Corp. v. Maddox, 379 U.S. 650, 652, 85 S. Ct. 614, 13 L. Ed. 2d 580 (1965), which states that “federal labor policy requires that individual employees wishing to assert contract grievances must attempt use of the contract grievance procedure agreed upon by employer and union as the mode of redress.” “The federal rule would not of course preclude [a] court suit if the parties to the collective bargaining agreement expressly agreed that arbitration was not the exclusive remedy.” Id., 657-58.

The thrust of footnote 5 in Dow is that the collective bargaining agreement procedures are the exclusive remedy unless the parties expressly agree otherwise. The plaintiff attempts to invert this proposition to one in which the collective bargaining agreement is exclusive only if it expressly says so. The plaintiff misreads Dow and Republic Steel Corp. Those cases stand for the proposition that, where nothing is said in the collective bargaining agreement about exclusivity, the agreement is considered to be the exclusive remedy.

B

The plaintiff maintains that resort to the grievance procedure would be futile because the final step in the grievance procedure is nonbinding arbitration and one of the parties will always resort to a court action. The plaintiff relies on O & G Industries, Inc. v. Planning & Zoning Commission, 232 Conn. 419, 429, 655 A.2d 1121 (1995), where our Supreme Court stated: “It is futile to seek a remedy only when such action could not result in a favorable decision and invariably would result in further judicial proceedings.”

One can only speculate as to whether arbitration here would have resulted in a decision unfavorable to the plaintiff. We certainly cannot say that he could not obtain a favorable decision. In Housing Authority v. Papandrea, 222 Conn. 414, 432, 610 A.2d 637 (1992), our Supreme Court rejected the plaintiffs claim of futility because the grievance procedures were capable of providing the plaintiff with relief even though the commissioner of the department of housing had, in an advisory letter, already taken a position that was adverse to the plaintiff housing authority. The Papandrea court stated that “[t]he fact that the commissioner [had taken the adverse position in a letter] did not relieve the [housing authority] of its obligation to pursue its administrative remedies in an effort to persuade the commissioner that his position was legally incorrect.” Id. The plaintiff here would not necessarily have been engaged in a futile action by pursuing the final step in the grievance process. He would have had an opportunity to convince an impartial arbitrator of the correctness of his position, and, if he had done so, the board might well have accepted that decision without seeking court review.

C

The plaintiff finally asserts that the final step of nonbinding arbitration could be taken only by the union and the union refused to do so. Consequently, he argues, he should be deemed to have exhausted the grievance procedures of the collective bargaining agreement.

The plaintiff requested the union to arbitrate only one of the matters of which he complains. Where the collective bargaining agreement permits only the union to take a grievance to arbitration, the employee has no further remedy unless he can prove that the union breached its duty of fair representation by acting arbitrarily, maliciously, or in bad faith. Vaca v. Sipes, 386 U.S. 171, 186, 87 S. Ct. 903, 17 L. Ed. 2d 842 (1967); see also Tedesco v. Stamford, 222 Conn. 233, 247-48, 610 A.2d 574 (1992). The plaintiff did not bring a claim against the union alleging a breach of its duty of fair representation as a result of the refusal of the union to pursue nonbinding arbitration in the one instance in which it was requested. As to the other instances, the plaintiff either did not request arbitration or did not even complete the first three levels of the grievance procedure. The trial court properly concluded that the plaintiff faded to exhaust his administrative remedies.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff claims that the alleged recruiting' violations were discussed with respect to three of the jobs that he sought. The plaintiff does not allege that the violations were brought up with respect to the other three jobs, but asserts that he was rejected for each position because of the alleged recruiting violations.

       The plaintiff also relies on cases of Snyder v. Board of Education, Superior Court, judicial district of Waterbury, Docket No. 121828 (August 30, 1995) (Sylvester, J.) and Sekor v. Board of Education, Superior Court, judicial district of Danbury, Docket No. 311665 (July 12, 1995) (Stodolink, J.). Those cases do not support Ms position.
      In Snyder, the plaintiff sought the enforcement of an agreement he claimed that he had with the mayor. The plaintiff claimed that pursuant to this agreement, the board of education could not initiate termination proceedings against him until certain criminal charges were resolved. The trial court ruled that the plaintiff was not required to exhaust administrative remedies because the proceeding was not one that challenged his termination and thus not subject to the doctrine of exhaustion of administrative remedies. Unlike Snyder, the plaintiff here challenges the board’s actions with respect to hiring, a subject clearly covered by the collective bargaining agreement.
      In Sekor, the plaintiff sought damages claiming that the defendant school board violated her free speech rights and thus violated General Statutes § 31-51ci. The trial court in Sekor simply decided that, based on the pleadings and affidavits, there was a genuine issue of material fact as to whether, pursuant to § 31-51q, “the plaintiffs activities ‘substantially or materially’ interfered with her job performance or with the working relationship between the plaintiff and the defendant.....” Sekor v. Board of Education, supra. The plaintiff here alleges no such statutory violation.

       The record of the plaintiffs 1991 grievance with respect to the head basketball coaching position at Westhill High School reflects that “at the hearing the parties agreed that the superintendent may consider all relevant information in making appointments from among unit members.” (Emphasis added.) The plaintiff does not dispute that there was such an agreement.

       The Stamford superintendent of schools and the principals of the two Stamford high schools were also named as defendants.

       The plaintiff also cites Drahan v. Regional School District, Superior Court, judicial district of New London at New London, Docket No. CV-92-0523352 (June 22, 1995) (Hurley, ,E). We affirmed the trial court’s decision in Drahan v. Board of Education, 42 Conn. App. 480, 680 A.2d 316 (1996). Nowhere in the copy of the trial court’s decision provided to us by the plaintiff or in our holding do we find the asserted proposition mentioned and we find no language that would support such a proposition.

       “The plaintiffs’ action could be maintained if the agreement did not make the grievance-arbitration process the exclusive remedy for the parties. Republic Steel Corporation v. Maddox, 379 U.S. 650, 657-58, 85 S. Ct. 614, 13 L. Ed. 2d 580 (1965). Although we are not provided on the record with the full agreement, there is no indication that the parties intended the procedures to be other than the exclusive remedy for the resolution of their disputes.” School Administrators Assn. v. Dow, supra, 200 Conn. 383-84 n.5.


author: HEIMAN, J.

text:
    STATE OF CONNECTICUT v. ROBERT C. TRAHAN
    (AC 13810)
    O’Connell, Foü and Heiman, Js.

      Argued April 22
    officially released July 15, 1997

      James M. Ralls, assistant state’s attorney, with whom, on the brief, were Patricia A. Swords, state’s attorney, and Matthew Gedansky, assistant state’s attorney, for the appellant (state).

      Pamela S. Nagy, special assistant public defender, for the appellee (defendant).
   Opinion

HEIMAN, J.

The state, with the permission of the trial court, appeals from the judgment granting the defendant’s motion to dismiss a charge of failure to appear in the second degree in violation of General Statutes § 53a-173. The defendant moved to dismiss the charge against him after the state reported to the court that the defendant had failed to complete satisfactorily apreviously granted application for accelerated rehabilitation as to that charge. In this appeal, the state asserts that the trial court acted improperly in dismissing the underlying charge because the statute mandates that, where a defendant fails to complete satisfactorily a period of probation imposed under a grant of accelerated rehabilitation, the case shall be brought to trial. As an alternative, the state posits that the action of the trial court in dismissing the underlying charge, under the facts of this case, constituted an abuse of discretion.

The facts necessary to a resolution of this appeal are not substantially in dispute. On November 24,1990, the defendant was issued a summons charging him with operating a motor vehicle while under the influence of intoxicating liquor or drugs in violation of General Statutes § 14-227a and failure to display proper lighted lamps and illuminating devices in violation of General Statutes § 14-96a. The defendant failed to make a scheduled court appearance on February 25, 1991, with respect to the motor vehicle charges and he was subsequently charged wdth failure to appear in the second degree in violation of General Statutes § 53a-173.

On August 31,1992, the defendant applied for accelerated rehabilitation as to the charge of failure to appear. On November 9,1992, the defendant withdrew his prior plea of not guilty as to the charge of operating a motor vehicle while under the influence of intoxicating liquor or drugs and entered a plea of guilty to that charge. The state entered a nolle to the charge of failure to display proper lighted lamps and illuminating devices. On the same day, the trial court granted the defendant’s application for accelerated rehabilitation with respect to the charge of failure to appear.

On the defendant’s conviction of operating a motor vehicle while under the influence of intoxicating liquor or drugs, the trial court imposed a sentence of six months in the custody of the commissioner of correction, suspended, and in lieu of the mandatory forty-eight hour period of incarceration, ordered the defendant to perform 100 hours of community service. See General Statutes § 14-227a (h). It also placed the defendant on probation for a period of eighteen months and imposed as special conditions of probation that the defendant not operate a motor vehicle while his right to operate was under suspension, that he undergo such alcohol counseling as deemed appropriate by the office of adult probation, and that he complete the community service requirement within one year. The trial court also ordered the defendant to pay a fine of $500.

In disposing of the defendant’s application for accelerated rehabilitation, the trial court placed the defendant in a probationary status for a period of eighteen months. This period of probation ran concurrently with the period of probation imposed as a result of the defendant’s conviction. The defendant was ordered to perform twenty-five hours of community service in addition to the 100 hours ordered by the trial court under his conviction.

In June, 1993, the defendant was convicted of operating a motor vehicle while under the influence of intoxicating liquor or drugs. In the same proceeding, the defendant was also convicted of operating a motor vehicle while his license was under suspension. See General Statutes § 14-215 (c). The defendant was presented on a charge of violation of probation with respect to his prior driving while under the influence conviction. His probation was revoked and he was committed to the custody of the commissioner of correction for the violation of probation. The court was neither asked to take, nor did it take, any action to terminate the accelerated rehabilitation probationary period.

On June 14, 1994, the defendant appeared before the trial court seeking a dismissal of the failure to appear charge for which accelerated rehabilitation had been granted. The state’s attorney reported to the court that the defendant had failed to complete satisfactorily the period of accelerated rehabilitation. The defendant, through counsel, conceded that he had been subsequently arrested and convicted as previously set forth, but asserted that it would be unfair not to dismiss the underlying case. The trial court dismissed the underlying charge of failure to appear for which the defendant had been granted accelerated rehabilitation, and this appeal follows.

I

Before we begin our discussion of the substantive claims of the parties, we must first resolve an assertion by the defendant that the state failed to preserve adequately its claims before the trial court. Specifically, the defendant asserts that this case is not reviewable because the state failed to raise before the trial court its claim that the trial court lacks discretion to dismiss a case under General Statutes (Rev. to 1993) § 54-56e, and that the statute mandates that the case be brought to trial. We are unpersuaded.

In the colloquy between the trial court and the assistant state’s attorney, the state clearly claims that the case involved an unsatisfactory completion of accelerated rehabilitation. Further, the defendant conceded that he had, during the period of accelerated rehabilitation, again been arrested and convicted of operating while under the influence and had also been convicted of operating a motor vehicle while his right to operate was under suspension. In light of these admissions in open court, it is disingenuous for the defendant to now claim that the state failed to preserve this claim properly. See State v. Roberson, 165 Conn. 73, 78, 327 A.2d 556 (1973). On the basis of our review of the record, we conclude that the state’s claim was preserved and is properly before us.

II

The state first asserts that the trial court acted improperly when it dismissed the underlying charge of failure to appear, where the defendant had failed to complete his period of accelerated rehabilitation because of his conviction of two offenses during the period of the accelerated rehabilitation program. The state posits that where a defendant fails to complete satisfactorily the conditions of accelerated rehabilitation, the statute mandates that the underlying charges be brought to trial. Alternatively, the state asserts that the trial court abused its discretion in dismissing the underlying charge. The defendant asserts, however, that the trial court had discretion to dismiss the charge pursuant to its power under General Statutes § 54-56, or, alternatively, that the trial court was vested with discretion to dismiss the charge under § 54-56e. Finally, the defendant asserts that because the state failed to act at the time of the defendant’s subsequent convictions, it waived its right to assert that the defendant failed to complete satisfactorily his period of accelerated rehabilitation.

We begin our analysis of whether the statutory language of § 54-56e, “[i]f the defendant. . . violates such conditions, his case shall be brought to trial,” is mandatory or directory, by repeating the well established principles of statutory inteipretation. It is our function when construing a statute, to determine and give effect to the intent of the legislature. See Doe v. Statewide Grievance Committee, 240 Conn. 671, 680, 694 A.2d 1218 (1997). “While we generally will not look for interpretative guidance beyond the language of the statute when the words of that statute are plain and unambiguous . . . our past decisions have indicated that the use of the word ‘shall,’ though significant, does not invariably create a mandatory duty. Fidelity Trust Co. v. BVD Associates, 196 Conn. 270, 278, 492 A.2d 180 (1985); Tramontano v. Dilieto, 192 Conn. 426, 433-34, 472 A.2d 768 (1984). Hall Manor Owner’s Assn. v. West Haven, 212 Conn. 147, 152, 561 A.2d 1373 (1989). In order to determine whether a statute’s provisions are mandatory we have traditionally looked beyond the use of the word ‘shall’ and examined the statute’s essential purpose. . . . The test to be applied in determining whether a statute is mandatory or directory is whether the prescribed mode of action is the essence of the thing to be accomplished, or in other words, whether it relates to a matter of substance or a matter of convenience. ... If it is a matter of substance, the statutory provision is mandatory. If, however, the legislative provision is designed to secure order, system and dispatch in the proceedings, it is generally held to be directory, especially where the requirement is stated in affirmative terms unaccompanied by negative words. . . . Katz v. Commissioner of Revenue Services, 234 Conn. 614, 617, 662 A.2d 762 (1995).” (Citation omitted; internal quotation marks omitted.) Crest Pontiac Cadillac, Inc. v. Hadley, 239 Conn. 437, 445-46, 685 A.2d 670 (1996). A statutory provision of this type directs what is to be done but does not invalidate any action taken for failure to comply. See Katz v. Commissioner of Revenue Services, supra, 617. “Furthermore, if there is no language that expressly invalidates any action taken after noncompliance with the statutoiy provisions, the statute should be construed as directory.” Crest Pontiac Cadillac, Inc. v. Hadley, supra, 446.

Looking solely at the language of § 54-56e, it appears to require that, if a defendant shall fail to complete satisfactorily the requisite conditions of his accelerated rehabilitation, the case shall be brought to trial. “Definitive words, such as ‘must’ or ‘shall,’ ordinarily express legislative mandates of a nondirectory nature.” Doe v. Statewide Grievance Committee, supra, 240 Conn. 681. As we have previously stated, however, our Supreme Court has taught that the use of the word “shall,” although significant, does not invariably set forth a mandatory duty. See id. We thus turn to other considerations in determining whether the language of § 54-56e is mandatory or directory.

The clear language of the statute invokes a penalty on the defendant for his or her failure to complete satisfactorily the conditions imposed upon the granting of accelerated rehabilitation. “The only right that the defendant may earn under the accelerated rehabilitation statute is the right to a dismissal of the charges against him, a right that is expressly conditioned on satisfactory completion of the period of probation. If the trial court determines that the defendant did not fulfill the conditions of probation, the charges will not be dismissed and the defendant may be required to go to trial [if the defendant elects not to plead guilty to the charges].” State v. Parker, 194 Conn. 650, 658, 485 A.2d 139 (1984). If in fact the trial court incorrectly determines that the defendant has not successfully met the conditions of his probation, and the defendant was in fact entitled to a dismissal of the charges, that right can be vindicated by an appeal after a trial. See id. “ ‘Bearing the discomfiture and cost of a prosecution for crime even by an innocent person is one of the painful obligations of citizenship.’ Cobbledick v. United States, [309 U.S. 323, 325, 60 S. Ct. 540, 84 L. Ed. 2d 783 (1940)]. How much more so is this true of a person who may be guilty of the offense charged but whom the legislature has declared a worthy candidate for a second chance.” State v. Parker, supra, 658.

Here, the statute imposes a penalty against a defendant who fails to meet successfully the conditions of a period of probation that results from the granting of an application for accelerated rehabilitation. The penalty imposed is that the case shall be brought to trial. We conclude that the legislative directive is not designed to “secure order, system and dispatch in proceedings”; State v. White, 169 Conn. 223, 238, 363 A.2d 143, cert. denied, 423 U.S. 1025, 96 S. Ct. 469, 46 L. Ed. 2d 399 (1975); but, is designed to provide a mandate for the disposition of the case of a defendant who has received a boon in the nature of a second chance and has failed to meet the terms set down for his governance. See State v. Parker, supra, 194 Conn. 658.

The assertion that the language of § 54-56e is mandatory also finds support in the legislative history of its enactment. In the debate on the adoption of the bill, its sponsor clearly stated that if a defendant fails to complete his probationary period, “he must then come back and face the Court for trial.”

We conclude that the language in § 54-56e is mandatory in nature and that failure to complete satisfactorily the period of pretrial probation requires that the case be returned to the docket for trial.

Ill

Having concluded that the statute is mandatory in its command that the case shall be brought to trial in the event that the defendant fails to complete successfully the period of accelerated rehabilitation, we next turn to the issue of whether the defendant failed to complete successfully his period of accelerated rehabilitation. We conclude that the defendant’s subsequent conviction for operating a motor vehicle while under the influence of intoxicating liquor or drugs constituted an unsuccessful completion of his accelerated rehabilitation.

General Statutes § 53a-24 defines the term offense. We have previously determined that operating a motor vehicle while under the influence of intoxicating liquors or drugs does not constitute an offense as defined by § 53a-24. See State v. Brown, 22 Conn. App. 108, 111, 575 A.2d 699, cert. denied, 216 Conn. 811, 580 A.2d 61 (1990). As we said in Brown, that does not end the inquiry. We must determine whether a particular act that the legislature has determined to be noncriminal for purposes of § 53a-24, may nonetheless be regarded as criminal for the purpose of assessing a successful completion of a period of probation imposed under the accelerated rehabilitation statute. See id., 112. An examination of the facts and circumstances of this case convinces us that the defendant’s subsequent conviction for operating a motor vehicle while under the influence constituted a violation of his accelerated rehabilitation.

“General Statutes § 54-56e, establishes a discretionary pretrial diversionary program in certain criminal cases. It suspends criminal prosecution for a stated period of time subject to such conditions as the court shall order. If the defendant satisfactorily completes the probationary period he may then apply to the court for dismissal of the charges lodged against him. The main thrust of the statute is suspension of prosecution.” State v. Spendolini, 189 Conn. 92, 95-96, 454 A.2d 720 (1983). The only right that the defendant acquires by the granting of a motion for accelerated rehabilitation is the right to a dismissal of the underlying criminal charge if the defendant satisfactorily completes the period of pretrial probation imposed. See State v. Parker, supra, 194 Conn. 658.

While the trial court may impose additional conditions of probation, we conclude that the defendant must comply with the general conditions of probation as set out in General Statutes § 53a-30. We draw this conclusion from the fact that accelerated rehabilitation is simply a form of pretrial probation and thus the defendant must comply with the general conditions of probation, including the condition that requires that a probationer “refrain from violating any criminal law of the United States, this state or any other state . . . .” General Statutes § 53a-30 (a) (7). We are also persuaded to this conclusion by the opinion in State v. Barnes, 37 Conn. Sup. 853, 857 n.3, 439 A.2d 456 (1981), a well reasoned opinion of the Appellate Session of the Superior Court, in which the court determined that the conditions of probation set forth in § 53a-30 (a) apply with equal force to both pretrial and postconviction probation. Moreover, “[i]t is presumed that the legislature, in enacting statutes, acts with the knowledge of existing relative statutes and with the intent to create one consistent body of law.” State v. Marquis, 42 Conn. App. 186, 197, 679 A.2d 386, cert. granted on other grounds, 239 Conn. 934, 684 A.2d 709 (1996). Accordingly, we are persuaded that a conviction of certain offenses may constitute failure to complete satisfactorily a period of pretrial probation.

The purpose of probation is to afford a period during which a penitent offender may be assisted in rehabilitation. See State v. Brown, supra, 22 Conn. App. 112. “Probation is designed to assure that the probation serves as a period of genuine rehabilitation and that the community is not harmed by the probationer’s being at large. State v. Smith, [207 Conn. 152, 165, 540 A.2d 679 (1988)], quoting Griffin v. Wisconsin, 483 U.S. 868, 875, 107 S. Ct. 3164, 97 L. Ed. 2d 709 (1987). The two central concerns of the probation system [are] the successful rehabilitation of the probationer and the safety of the community. United States v. Dane, 570 F.2d 840, 845 (9th Cir. 1977).” (Internal quotation marks omitted.) State v. Brown, supra, 113.

Here, the criminal charge under which the defendant was granted accelerated rehabilitation was failure to appear in the second degree, a charge that had its genesis in the fact that the defendant had been charged with operating a motor vehicle while under the influence of intoxicating liquor or drugs. During his period of accelerated rehabilitation, the defendant was also serving a period of probation as a result of his conviction for operating a motor vehicle while under the influence. Thus, the failure to appear charge is intimately connected and grounded in the defendant’s offense of operating a motor vehicle while under the influence. The period of probation imposed in each instance was designed to prevent a recurrence of the conduct that underlies the defendant’s failure to appear, the operation of a motor vehicle while under the influence. Moreover, the defendant’s subsequent conviction for operating a motor vehicle while under the influence carried with it a nonsuspendable period of incarceration. Under these circumstances, we conclude that the defendant’s conviction for operating while under the influence during his period of pretrial probation constituted a violation of the criminal law within the meaning of the defendant’s conditions of probation. See id.

We have previously held that “[r]efraining from criminal activity is an integral part of probation and requires no special order or condition.” State v. Wright, 24 Conn. App. 575, 576, 590 A.2d 486 (1991). It is indisputable that refraining from criminal activity is an integral part of any probation order, pretrial or postconviction, and commission of an offense while on probation constitutes a breach of the conditions of probation. See id.

We conclude that the trial court acted improperly in determining that the defendant had satisfactorily completed his period of accelerated rehabilitation when he had again been convicted of operating a motor vehicle while under the influence of intoxicating liquor or drugs during the period of his accelerated rehabilitation. We conclude, therefore, that the trial court acted improperly in dismissing the underlying criminal charge of failure to appear.

The judgment is reversed and the case is remanded with direction to deny the defendant’s motion to dismiss, to reinstate the case to the trial list, and for further proceedings in accordance with this opinion.

In this opinion the other judges concurred.

       General Statutes § 54-96 provides: “Appeals from the rulings and decisions of the Superior Court, upon all questions of law arising on the trial of criminal cases, may be taken by the state, with the permission of the presiding judge, to the Supreme Court or to the Appellate Court, in the same manner and to the same effect as if made by the accused.”

       The judgment file does not recite the imposition of an additional twenty-five hours of community service as a condition of the accelerated rehabilitation, but the transcript of the sentencing and accelerated rehabilitation proceeding states this condition. In addition, the defendant concedes the existence of this condition in his brief.

       In his brief, the defendant asserts that there was no evidence before the trial court of these convictions, nor did the record indicate the existence of these convictions. At the hearing before the trial court, however, the defendant’s counsel clearly stated that the defendant was subsequently convicted. See Council on Probate Judicial Conduct re: James H. Kinsella, 193 Conn. 180, 200, 476 A.2d 1041 (1984).

       The entire proceeding before the trial court is as follows:
      “[Assistant State’s Attorney]: This is an unsatisfactory completion of accelerated rehabilitation.
      “[Defense Counsel]: Your Honor, I’d like to be heard on whether this case should be dismissed or not. [The defendant] is my case and he feels that what happened here is unfair. What happened in this case is that on November 9, 1992, he pled guilty to operating under the influence and received six months suspended and eighteen months probation and on the second charge of the same file he received accelerated rehabilitation for eighteen months. In June of 1993, he was arrested and convicted for [driving while under the influence (DWI)] and operating under suspension in Enfield. The probation department then presented him on a charge of violation of probation under DWI and he was sentenced to jail. He spent forty-three days in jail last summer. He thought that his case was disposed of. There was also a condition on the failure to appear and the drunk driving that he perform community service. He says he performed forty-seven hours of community service. On the accelerated rehabilitation he was obligated to do twenty-five hours. He actually did a lot of work for the Knights of Columbus doing carpentry and electrical work.
      “The Court: I think the ends of justice would be adequately satisfied if I dismiss the case.
      “[Assistant State’s Attorney]: On what basis, Your Honor?
      “The Court: On the basis of the ends of justice require it.
      “[Assistant State’s Attorney]: I don’t believe that’s what the statute entails, Your Honor. He’s been convicted of a subsequent offense.
      “The Court: If you’d like permission to appeal, I give you permission.
      “[Assistant State’s Attorney]: Thank you.
      “The Court: What do you think the outcome of a guilty plea would be on this charge?
      “[Assistant State’s Attorney]: On the charge?
      “The Court: Yes.
      “[Assistant State’s Attorney]: I don’t know.
      “The Court: It’s interesting. We now want to give him a criminal record on a motor vehicle offense on which he paid heavily a couple of times. You do what you want to do.
      “[Assistant State’s Attorney]: I will, Your Honor. Thank you.
      “The Court: I would just state for the record that the reason that I think the ends of justice require it because under the circumstances, I think there’s has been substantial requirements, substantial compliance, with any normal thing that could have been expected.”

       General Statutes (Rev. to 1993) § 54-56e provides in relevant part: “There shall be a pretrial program for accelerated rehabilitation of persons accused of a crime or a motor vehicle violation for which a sentence to a term of imprisonment may be imposed, which crime or violation is not of a serious nature. The court may, in its discretion, invoke such program on motion of the defendant or on motion of a state’s attorney or prosecuting attorney with respect to an accused who, the court believes, will probably not offend in the future and who has no previous record of conviction of a crime or of a violation of section 14-196, subsection (c) of section 14-215, section 14-222a, subsection (a) of section 14-224 or section 14-227a and who states under oath, in open court or before any person designated by the clerk and duly authorized to administer oaths, under the penalties of perjury that he has never had such program invoked in his behalf, provided the defendant shall agree thereto and provided notice has been given by the accused, on a form approved by rule of court, to the victim or victims of such crime or motor vehicle violation, if any, by registered or certified mail and such victim or victims have an opportunity to be heard thereon. . . . Any defendant who enters such program shall agree to the tolling of any statute of limitations with respect to such crime and to a waiver of his right to a speedy trial. Any such defendant shall appear in court and shall be released to the custody of the office of adult probation for such period, not exceeding two years, and under such conditions as the court shall order. If the defendant refuses to accept, or, having accepted, violates such conditions, his case shall be brought to trial. If such defendant satisfactorily completes his period of probation, he may apply for dismissal of the charges against him and the court, on finding such satisfactory completion, shall dismiss such charges. If the defendant does not apply for dismissal of the charges against him after satisfactorily completing his period of probation, the court, upon receipt of a report submitted by the office of adult probation that the defendant satisfactorily completed his period of probation, may on its own motion make a finding of such satisfactory completion and dismiss such charges. Upon dismissal, all records of such charges shall be erased pursuant to section 54-142a. An order of the court denying a motion to dismiss the charges against a defendant who has completed his period of probation or terminating the participation of a defendant in such program shall be a final judgment for purposes of appeal.” (Emphasis added.)

       See footnote 4.

       See footnote 4.

       We note that the defendant asserts three additional arguments for the state’s failure to preserve properly its claims. These additional arguments, are actually alternative grounds for affirmance. Because the defendant failed to comply with Practice Book § 4013 (a) (1), in that he did not file the requisite preliminary statement of issues, we refuse to consider the improperly raised alternative grounds for affirmance. See Practice Book § 4013 (a) (1); see also D’Ulisse-Cupo v. Board of Directs of Notre Dame High School, 202 Conn. 206, 216 n.4, 520 A.2d 217 (1987); State v. One 1961 BMW Automobile, 15 Conn. App. 589, 598, 546 A.2d 879 (1988).

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

       See footnote 5.

       Because the defendant failed to comply with the provisions of Practice Book § 4013 (a) (1), we decline to address these alternative grounds of affirmance. See footnote 8.

       16 II.R. Proc., Pt. 11,1973 Sess., pp. 5712-15, remarks of Representative Samuel Freedman (debate concerning adoption of No. 8984, An Act Providing for Accelerated Rehabilitation Disposition of Criminal Cases).

       General Statutes § 53a-24 provides: “(a) The term 'offense’ means any crime or violation which constitutes a breach of any law of this state or any other state, federal law or local law or ordinance of apolitical subdivision of this state, for which a sentence to a term of imprisonment or to a fine, or both, may be imposed, except one that defines a motor vehicle violation or is deemed to be an infraction. The term ‘crime’ comprises felonies and misdemeanors. Every offense which is not a ‘crime’ is a ‘violation’. Conviction of a violation shall not give rise to any disability or legal disadvantage based on conviction of a criminal offense.
      “(b) Notwithstanding the provisions of subsection (a) of this section, the provisions of sections 53a-28 to 53a-44, inclusive, shall apply to motor vehicle violations. Said provisions shall apply to convictions under section 21a-278 except that the execution of any mandatory minimum sentence imposed under the provisions of said section may not be suspended.”

       See, e.g., General Statutes § 46b-38c (pretrial family violence diversionary program) and General Statutes § 54-56g (alcohol education program). In § 46b-38c the language adopted by the General Assembly is the same as that employed in § 54-56e, while the language used in § 54-56g closely resembles the language used in § 54-56e.