text:
    REMINGTON INVESTMENTS, INC. v. NATIONAL PROPERTIES, INC.
    (AC 16552)
    O’Connell, C. J., and Landau and Schaller, Js.

      Argued February 24
    officially released August 18, 1998

      Bernard Green, with whom was Mami Smith Katz, for the appellant (defendant).

      Robert M. Barrack, with whom, on the brief, was John B. Farley, for the appellee (plaintiff).
   Opinion

SCHALLER, J.

The defendant, National Properties, Inc., appeals from the judgment of the trial court rendered in favor of the plaintiff as to all claims raised in the complaint. On appeal, the defendant claims that the trial court improperly (1) quieted title to the personal property at issue in favor of the plaintiff, (2) admitted into evidence an escrow agreement that provided for the holding of the funds realized from the sale of the personal property, (3) ordered relief not sought by the plaintiff and (4) allowed the plaintiff to amend its complaint. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. The defendant conducted business in Connecticut as a corporation involved in real estate development and property management from approximately 1982 to 1994. Peter Penczer, as the secretary and treasurer, Martin Ryan, Jr., as the president, and John Jarvis, Jr., and Robert Rowan, as vice presidents, were all shareholders and directors of the defendant corporation. The defendant acted as the record keeper and property manager for six commercial properties in Wallingford. Each parcel was owned by a separate general partnership that consisted of the principals of the defendant, which were designated as Fairfield Associates and Fairfield Associates II through VI.

One of the properties managed by the defendant was known as 6 Fairfield Boulevard. This property was originally purchased by Fairfield Associates, subject to a mortgage from Bank Mart in 1986. Fairfield Associates later conveyed 6 Fairfield Boulevard to Fairfield Associates III, subject to Bank Mart’s mortgage. The other Fairfield Associates partnerships owned parcels or buildings that were either contiguous to or located near the building owned by Fairfield Associates III.

Among the tenants of Fairfield Associates III at 6 Fairfield Boulevard was Corporate Physique Training Center, Inc. (Corporate Physique), a health club. In 1989, Corporate Physique was delinquent in its rent and common area maintenance payments. On October 13, 1989, Fairfield Associates III and Corporate Physique entered into an agreement, titled, “Lease Termination Agreement.” The agreement provided in relevant part that Corporate Physique would turn over possession of the premises to Fairfield Associates III and, in addition, transfer “all of its right, title and interest in all of the personal property belonging to the Tenant and located in the Premises . . . .” In consideration for this transfer, Fairfield Associates III agreed to release Corporate Physique from all of its obligations under the lease, including its past due and future rental and common area maintenance payments and, in addition, agreed to pay to Corporate Physique the sum of $15,000. Attached to the lease termination agreement was a “Bill of Sale” that acknowledged the conveyance by Corporate Physique to Fairfield Associates III of all of Corporate Physique’s “assets of every kind and description located on the Premises at 6 Fairfield Boulevard . . . including without limitation those assets on exhibit A hereto . . . .” The bill of sale was signed by the secretary and the president of Corporate Physique, and by Ryan for Fairfield Associates III. When placed in evidence as the plaintiff’s exhibit F, however, neither the lease termination agreement nor the bill of sale had attached an exhibit A or any other enumeration of the personal property.

Penczer, however, identified a fist of exercise equipment under the title, “Corporate Physique Training Center Equipment List,” dated October 9, 1989. This document was admitted into evidence as plaintiffs exhibit H and represented a list of all the exercise equipment purchased from Corporate Physique by Fairfield Associates III.

A photocopy of the front of a check of Fairfield Associates V dated October 13, 1989, for $15,000 payable to Corporate Physique, with a notation thereon that it was “per Lease Termination Agreement,” was admitted as defendant’s exhibit two. The check was signed by Ryan, president of the defendant and general partner in all of the entities owned by the six general partnerships.

No documentation was introduced into evidence of any transfers between Fairfield Associates III and Fair-field Associates V or from Fairfield Associates V to the defendant. The exercise equipment, however, appears on the Wallingford grand list of October 1, 1990, in the name of “National Properties, Inc., 4 Fairfield Boulevard,” as commercial furniture with an assessment of $9450.

On October 26, 1989, less than two weeks after Fair-field Associates III executed the lease termination agreement with Corporate Physique and purchased the exercise equipment listed in exhibit H, Fairfield Associates III executed a new lease for the same space previously occupied by Corporate Physique with a new health club, Healthworks, Ltd. (Healthworks). Attached to the lease as “Schedule B” was an “Equipment Rental” agreement pursuant to which Fairfield Associates III agreed to lease the exercise equipment it had purchased from Corporate Physique to Healthworks. In addition, the equipment rental agreement provided, inter alia, that “the equipment shall at all times be the sole and exclusive property of the Lessor.” The lessor was identified as Fairfield Associates III. Ryan signed the lease and the equipment rental agreement on behalf of Fairfield Associates III.

Fairfield Associates III became delinquent in its mortgage payments to Bank Mart for 6 Fairfield Boulevard and defaulted. As a result of the default, Fairfield Associates III and Bank Mart entered into negotiations that culminated in an agreement to execute a deed in lieu of foreclosure agreement on April 23, 1991. In addition to agreeing to convey the real property located at 6 Fairfield Boulevard in exchange for a forgiveness of its debt of over $4,000,000, pursuant to the deed in lieu of foreclosure agreement, Fairfield Associates III agreed to convey to Bank Mart’s nominee, F. A. Wallingford, III, Inc. (F. A. Wallingford), “[t]itle in and to all personal property of Borrower or Guarantors acquired for installation or use in connection with the Property . . . .”

The deed in lieu of foreclosure agreement required that at the closing, “a warranty Bill of Sale duly executed and acknowledged by Borrower, conveying to Nominee title to the Personal Property, free and clear of any encumbrances,” would be provided to F. A. Wallingford. This agreement, plaintiffs exhibit I, differed from the other written documents in that it contained an express integration clause.

The bill of sale for the personal property, referred to in the deed in lieu of foreclosure agreement, was admitted into evidence as exhibit J. When the plaintiffs exhibit J was introduced, schedule A was not attached. Penczer testified that at the time the deed in lieu of foreclosure agreement was executed, Fairfield Associates III did not own any personal property, so there was no need for a bill of sale. He therefore offered to give a bill of sale with a blank schedule attached. Penczer said that ultimately, he signed the plaintiff s exhibit J, the bill of sale, with no schedule attached.

In a letter dated April 29, 1991, Frederick Fallon, executive director of Healthworks, informed Penczer that the facility at 6 Fairfield Boulevard would close on October 31, 1991, and offered to purchase the exercise equipment for $30,000 payable in three annual installments of $10,000. Penczer later confirmed that a sale of the exercise equipment to Healthworks had taken place by way of a letter sent to Fallon dated July 31, 1991. Healthworks had already begun to remove the exercise equipment from its leased premises at 6 Fair-field Boulevard prior to this letter. Bank Mart did not become aware of this situation until Healthworks had nearly completed the removal of the exercise equipment from the premises. On October 7, 1991, F. A. Wallingford, as a subsidiary of Bank Mart, began this action against the defendant to determine ownership of the fixtures.

In December, 1991, Bank Mart was found to be insolvent and the Federal Deposit Insurance Corporation (FDIC) was appointed receiver of Bank Mart. The FDIC was substituted as party plaintiff for F. A. Wallingford on February 6,1992. Subsequently, on January 27,1993, the J. E. Company of New England, acting under a power of attorney from the FDIC, entered into an escrow agreement with the defendant. The escrow agreement provided that the sale of the exercise equipment by the defendant to Healthworks was approved, and the res, ownership of which was to be determined, was placed in escrow for the benefit of the prevailing party in this litigation. This escrow agreement was admitted as the plaintiffs exhibit M.

The FDIC through its attomey-in-fact, J. E. Roberts, executed a bulk sale of the assets of the former Bank Mart to Remington Investments, Inc. (Remington). That bulk sale included the rights and claims of the FDIC in the present lawsuit. On December 11, 1995, Remington was substituted as party plaintiff and remains the plaintiff in this action.

This matter was tried before the trial court, which rendered judgment in favor of the plaintiff, on October 16,1996, awarding cash proceeds of the exercise equipment to the plaintiff, conditioned on the plaintiffs filing an amended complaint. The court required that the amended complaint conform to the proof at trial, which indicated that the parties had entered into the escrow agreement.

I

The defendant first claims that the trial court improperly quieted title to personal property pursuant to General Statutes § 47-31. We disagree.

“ ‘[W]here the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous.’ ” Family Financial Services, Inc., v. Spencer, 41 Conn. App. 754, 759, 677 A.2d 479 (1996), quoting Pandolphe Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).

The plaintiff originally brought this action pursuant to § 47-31, which provides a judicial mechanism for parties asserting competing interests in real or personal property to settle the issue of title. The prevailing party must prove its title or interest in the disputed property by a preponderance of the evidence. See Loeb v. AlMor Corp., 42 Conn. Sup. 279, 287, 615 A.2d 182 (1991), aff'd, 224 Conn. 6, 615 A.2d 149 (1992). Moreover, that party must prevail on the strength of its own title and not on the weakness of its adversary’s title. Lake Garda Improvement Assn. v. Battistoni, 155 Conn. 287, 293, 231 A.2d 276 (1967). For a party to prove its claim, it must produce the documents through which it acquired its interest in the property, and demonstrate “by at least one of the subscribing witnesses . . . the due execution of the [documents].” Loewenberg v. Wallace, 147 Conn. 689, 696, 166 A.2d 150 (1960).

At trial, in support of the plaintiffs claim, the plaintiff produced a bill of sale from Fairfield Associates III, the undisputed source of the plaintiffs claim of title, conveying the personal property of Fairfield Associates III to F. A. Wallingford (Bank Mart’s nominee). The bill of sale conveyed to F. A. Wallingford “all personal property of [Fairfield Associates III] located on the property known as 6 Fairfield Boulevard.” Title passed from F. A. Wallingford to the FDIC when the FDIC was appointed receiver for Bank Mart. The defendant acknowledged that the FDIC was the successor in interest to F. A. Wallingford to receive any title that Fairfield Associates III had when the defendant entered into the agreement that created the escrow fund for the disputed proceeds. By a subsequent assignment, the interest of the FDIC was transferred to the plaintiff.

In support of the defendant’s claim, Penczer asserted title to the exercise equipment based on a check for $15,000 from Fairfield Associates V to Corporate Physique and then claimed that an intercompany transfer between Fairfield Associates V and the defendant took place. The defendant, however, cannot produce any documents related to the final transfer. The only evidence to support the claim of the defendant’s ownership of the exercise equipment is Penczer’s testimony that he registered the exercise equipment with the town of Wallingford assessor’s office at the disclosed purchase price of $15,000 and a net depreciated value of $13,000. In addition, the defendant attempted to bolster its title claim by its offer of an explanation for the absence of schedule A in the transfer to F. A. Wallingford. Penczer testified that there was no schedule A attached because “there was no personal property to be conveyed.” He, therefore, did not think there should be a bill of sale. In the end, however, there was a bill of sale signed by him, with no schedule attached, blank or otherwise.

Both parties in this case agree that the incident giving rise to this action took place when Corporate Physique sold the exercise equipment pursuant to the lease termination agreement. The plaintiff, however, produced a bill of sale emanating from the lease termination agreement and executed on the same day by Penczer on behalf of Fairfield Associates III, as well as by Jarvis and Ryan. The bill of sale conveyed to F. A. Wallingford “all personal property of [Fairfield Associates III] located on the property known as 6 Fairfield Boulevard, Wallingford, Connecticut, all personal property of [Fair-field Associates III] acquired for installation or use in connection with said property, wherever located.” In view of this broad language, the trial court declined to accept Penczer’s explanation for the absence of schedule A.

The defendant’s production of a check from Fairfield Associates V’s account and a claim of an intercompany transfer to the defendant, without supporting documentation, do not support a good chain of title. The plaintiff, however, produced documents that comprise an unbroken chain of title to the disputed property from Corporate Physique to Fairfield Associates III, then to F. A. Wallingford, then to the FDIC and, finally, to the plaintiff. The plaintiffs claim of title is well documented and a clear chain of title. Accordingly, we conclude that the plaintiff has complied with the requirements of § 47-31, and that the trial court properly quieted title in the plaintiff.

II

The defendant next claims that the trial court improperly admitted into evidence an escrow agreement that provided for the holding of the funds realized from the sale of the personalty entered into by the defendant and the FDIC. The defendant claims that the escrow agreement (1) was immaterial, (2) was a settlement agreement and (3) provided that it would be inadmissible in the litigation. We disagree.

The issue of whether the trial court improperly admitted the escrow agreement into evidence is an evidentiary issue. Therefore, the proper standard of review is abuse of discretion. New England Savings Bank v. Bedford Realty Corp., 238 Conn. 745, 752, 680 A.2d 301 (1996).

A

At trial, the defendant’s counsel objected to the offer of exhibit M, the escrow agreement, on the ground of materiality. The defendant claims that the plaintiff made no allegation in the complaint concerning the escrow agreement or the fund established from the proceeds of the sale of exercise equipment to Healthworks. Thus, the defendant claims that exhibit M was immaterial to the facts and claims at issue.

The plaintiff contends that although the defendant maintained that the escrow agreement was immaterial, the defendant never raised the specific ground that the existence of that document was not alleged in the complaint. Accordingly, this claim was not properly preserved for appeal. See State v. Sinclair, 197 Conn. 574, 579, 500 A.2d 539 (1985). “ ‘Our rules of practice make it clear that counsel must object to a ruling of evidence, state the grounds upon which objection is made ... to preserve the grounds for appeal. . . . These requirements are not simply formalities. . . . We consistently have stated that we will not consider evidentiary rulings where counsel did not properly preserve a claim of error by objection .... State v. Lizotte, 200 Conn. 734, 742A, 517 A.2d 610 (1986).’ ” New London Federal Savings Bank v. Tucciarone, 48 Conn. App. 89, 102, 709 A.2d 14 (1998).

B

The defendant’s claim that the escrow agreement should not have been admitted because it was a settlement agreement is without merit. The terms of the escrow agreement that “[t]he escrow fund shall be held to answer the judgment . . . shall constitute neither a declaration nor an admission by either party to this agreement that title to the equipment is vested in either party” suggest that the parties recognized that the matter was in dispute. The escrow agreement is specific in stating that the litigation would continue until a judgment was rendered. Therefore, the escrow agreement cannot be viewed as a settlement agreement.

C

Finally, the defendant claims that the trial court improperly admitted into evidence the escrow agreement despite the provision in the agreement that it would not be admissible in the litigation. The defendant did not object to the admission of the agreement on this ground and, thus, waived any objection to the admission of the agreement. The fact that the defendant raised this objection for the first time in its reply to the plaintiffs posttrial brief, months after the trial, does not entitle it to a review of this ground on appeal. See Thomaston v. Ives, 156 Conn. 166, 175, 239 A.2d 515 (1968) (Supreme Court will not consider claim of evidentiary error unless specific objection made when evidence offered); Sanderson v. Bob’s Coaster Corp., 133 Conn. 677, 681, 54 A.2d 270 (1947) (“[w]e do not consider objections to evidence which the finding does not show were made when it was offered”). In State v. Sinclair, supra, 197 Conn. 579, our Supreme Court held: “Our review of evidentiary rulings made by the trial court is limited to the specific legal ground raised in the objection. . . . The reason for this rule is clear: it is to alert the trial court to an error while there is time to correct it . . . and to give the opposing party an opportunity to argue against the objection at trial. To permit a party to raise a different ground on appeal than was raised during trial would amount to ‘trial by ambuscade,’ unfair both to the trial court and to the opposing party.” (Citations omitted.)

This court found in Hicks v. Bronson, 11 Conn. App. 808, 808-809, 526 A.2d 1350 (1987), that “[t]he sole claim pressed on appeal, however, was not within the allegations of the petition, even read broadly, and was only presented to the trial court in the petitioner’s posttrial brief. Thus, the respondent had no timely notice that the claim was being litigated, and had no opportunity to introduce evidence to counter the claim.” Consequently, the defendant is not entitled to review of its claim that the escrow agreement should not have been admitted into evidence.

III

The defendant next claims that the trial court improperly rendered judgment in favor of the plaintiff and ordered relief not sought by the plaintiff. Specifically, the defendant claims that the trial court awarded ownership of the fund representing the proceeds of the sale of the exercise equipment where the plaintiff made no allegations concerning the fund in its complaint and made no claim for relief pertaining to the fund.

“ ‘It is fundamental in our law that the right of a plaintiff to recover is limited to the allegations of [its] complaint. . . . However, [t]he modem trend, which is followed in Connecticut, is to construe pleadings broadly and realistically, rather than narrowly and technically. ... As long as the pleadings provide sufficient notice of the facts claimed and the issues to be tried and do not surprise or prejudice the opposing party, we will not conclude that the complaint is insufficient to allow recovery.’ ” (Citations omitted.) Cellu Tissue Corp. v. Blake Equipment Co., 41 Conn. App. 413, 417, 676 A.2d 405 (1996).

While we have acknowledged that the original complaint predated the escrow agreement and the resulting escrow fund, we construe the trial court’s decision as quieting title to the exercise equipment and recognizing the stipulated substitution of the escrow fund for the exercise equipment. It would be disingenuous to claim that because the plaintiff did not request title to the escrow fund in the original complaint, which predated the escrow fund agreement, the trial court could not order such relief. The exercise equipment was converted to proceeds in a mutually agreed upon escrow fund for the mutual benefit of the parties.

IV

The defendant finally claims that the trial court improperly allowed the plaintiff to amend its complaint after trial. We disagree.

“[A] trial court may allow, in its discretion, an amendment to pleadings before, during, or as here, after trial to conform to the proof. Wright v. Coe & Anderson, Inc., 156 Conn. 145, 155, 239 A.2d 493 (1968); Thibault v. Frechette, 135 Conn. 170, 173, 62 A.2d 863 (1948); cf. Winsor v. Hawkins, 130 Conn. 669, 670, 37 A.2d 222 (1944); General Statutes § 52-130 .... Saphir v. Neustadt, 177 Conn. 191, 206, 413 A.2d 843 (1979). Whether to allow an amendment is a matter left to the sound discretion of the trial court. This court will not disturb a trial court’s ruling on a proposed amendment unless there has been a clear abuse of that discretion. Falby v. Zarembski, 221 Conn. 14, 24, 602 A. 2d 1 (1992). [W]here, as here, there is a variance between allegations in the [original complaint] and the proof at trial, which is corrected by amendment to the [original complaint], a judgment based on the amended [complaint] will not be set aside unless the variance misled or prejudiced the defendants on the merits of the case.” (Internal quotation marks omitted.) Voll v. Lafayette Bank & Trust Co., 223 Conn. 419, 433, 613 A.2d 266 (1992).

Applying these principles to the case before us and on the basis of our conclusion in part III of this opinion regarding the propriety of the substitution of the escrow fund for the personal property, we conclude that the trial court properly exercised its discretion in permitting the posttrial amendment and in denying the defendant’s motion to strike the amended complaint. Once the trial court admitted evidence of the escrow fund, the defendant was on notice that the trial court would consider this evidence in deciding whether, by stipulation of the parties, the exercise equipment was now represented by the escrow fund. The defendant, therefore, was not misled or prejudiced by the trial court’s determination that the plaintiff had title to the equipment and, of necessity, to the escrow fund that now represented the equipment, in view of the fact that the parties had agreed to a sale of the equipment during the course of the lawsuit.

We conclude that the defendant was not misled or prejudiced by the amendment to the plaintiffs original complaint after trial. Accordingly, the trial court did not act improperly in ordering the amended complaint to conform the pleadings to the proof or in denying the defendant’s motion to strike the amended complaint.

The judgment is affirmed.

In this opinion the other judges concurred.

       As will be explained further, the plaintiff, Remington Investments, Inc., is the successor in interest to Bank Mart and the owner of all rights and claims of Bank Mart in connection with this lawsuit and the personal property at issue.

       Ryan’s position as the president, director and shareholder of the defendant has already been noted.

       The personal property of Corporate Physique was listed as commercial furniture on the grand list in 1989 with an assessment of $67,000.

       This clause provided: “This Agreement contains the entire agreement between the parties relating to the transaction contemplated hereby. All prior or contemporaneous agreements, understandings, representations and statements, oral or written are merged herein.”

       In the plaintiffs exhibit J, Fairfield Associates III conveyed to F. A. Wallingford among other things: “All personal property of Seller located on the property known as 6 Fahfield Boulevard, Wallingford, Connecticut, all personal property of Seller acquired for the installation or use in connection with said property, wherever located . . . including without limitation, all personal property set forth on Schedule A attached hereto.”
      Jarvis signed for Fairfield Associates III and, along with partners Ryan and Penczer, also signed the document individually.

       The letter sent by Penczer, on behalf of the defendant, stated the following: “The purpose of this letter is to confirm to you that National Properties, Inc., was the owner of the attached list of equipment as reflected in the Town of Wallingford personal property tax rolls, and it did sell it to you and you have the right to possession of the property.”

       The agreement provided in relevant part: “The parties agree that it is in their mutual interest for the sale of the equipment to Healthworks . . . that the price in terms for the sale of the equipment to Healthworks is fair and reasonable.. . . The proceeds of said sale shall be the res that is the subject of the action referred above, in lieu of the specific equipment named in the complaint .... This agreement shall inure to and be binding upon the parties and their respective successors and assigns. . . . This agreement and the fact that the execution of it shall not be admissible in evidence in the litigation and shall constitute neither a declaration nor an admission by either party to this agreement that title to the equipment is vested in either party.”

       The escrow agreement (exhibit M) entered into by the defendant and the FDIC on January 27, 1993, provided in relevant part that the subject matter of this action would be the cash proceeds from the sale of the exercise equipment rather than the equipment itself.

       General Statutes § 47-31 (b) provides in relevant part: “The complaint in such action shall describe the property in question and state the plaintiffs claim, interest or title and the manner in which the plaintiff acquired the claim, interest or title and shall name the person or persons who may claim the adverse estate or interest. ...”

       Penczer testified that he agreed to give a bill of sale with a blank schedule attached.


source: Caselaw Access Project

author: LAVERY, J.

license: Public Domain

text:
    CITY OF HARTFORD v. INTERNATIONAL ASSOCIATION OF FIREFIGHTERS, LOCAL 760
    (AC 17338)
    O’Connell, C. J., and Lavery and Landau, Js.
    Argued March 24
    officially released August 18, 1998

      James C. Ferguson, for the appellant (defendant).

      Karen K. Buffkin, assistant corporation counsel, with whom, on the brief, was Kevin Dubay, corporation counsel, for the appellee (plaintiff).
   Opinion

LAVERY, J.

The defendant, International Association of Firefighters, Local 760, appeals from the judgment of the trial court vacating an arbitration award in favor of the defendant. On appeal, the defendant claims that the trial court improperly granted the application filed by the plaintiff city of Hartford to vacate the arbitration award and denied the defendant’s application to confirm the award because the trial court improperly (1) found that the arbitrator had neither the authority nor jurisdiction to make a monetary award, (2) found no evidence that the arbitrator considered the loss to union members, individually or collectively, as a result of the plaintiffs breach of the collective bargaining agreement and (3) concluded that the award of damages was punitive. We affirm the judgment of the trial court.

The following facts are not in dispute. The plaintiff and the defendant entered into a collective bargaining agreement (agreement) for the period of July 1, 1987, to July 1,1991. Pursuant to the applicable section of the agreement, the plaintiff was to provide certain health benefits for the defendant’s members, including a basic medical plan, a major medical plan, and dental and other benefits. Blue Cross/Blue Shield of Connecticut, Inc. (Blue Cross/Blue Shield), was designated by the agreement to be the provider of the basic medical and dental benefits for the defendant’s members. The agreement did not specify a particular health insurer to provide major medical benefits. Prior to July 1,1991, the plaintiff contracted with Travelers Insurance Company (Travelers) to provide major medical benefits pursuant to the agreement. The parties’ successor agreement contained the same relevant sections and language.

The agreement provided for the substitution of health insurance providers in article III, § 3.5.6, as follows:

“6. Substitute Health Insurance Carrier. The [plaintiff] may provide health insurance benefits for employees and their enrolled dependents, by other than the named insurance carriers provided:
“a. The plan(s) proposed as a substitute must contain at least equal or better coverage, benefits . . . portability and administration as the present plan(s) ... at no additional cost to the employee or his or her enrolled dependents. Such substitute plan(s) must be subject to the rules and regulations of the State Insurance Commissioner’s Office and shall not preclude an employee or his or her enrolled dependents from selecting ....
“b. The [defendant] shall have an opportunity to study the proposed plan(s) for a period of eighty (80) consecutive calendar days prior to implementation.
“c. If at the end of the eighty (80) consecutive calendar day study period there is disagreement between the parties on whether or not the plan(s) meet any of the criteria of subsection (a) above, then the issue will be submitted to the American Arbitration Association. . . . If the Arbitrator rules that the [plaintiffs] proposed substitute carrier’s plan(s) does not meet the criteria as outlined in #6, a, b and c of the section, the [plaintiff] changes carriers, the standards outlined in #6, a, b, and c of this section, must be maintained during the life of the Agreement. . . . If the substitute carrier plan has been implemented, the old plan shall be re-established immediately and remain in effect for the life of the Agreement. The cost of AAA shall be split equally between the parties and the award will be final and binding.”

In 1991, the plaintiff was faced with a severe fiscal crisis and a large projected budget deficit. To reduce the deficit and to control escalating employee health insurance costs, the plaintiff decided to provide health benefits to all of its employees, including the defendant’s members, through a self-funded consolidated plan administered by Blue Cross/Blue Shield. The plaintiff sent the defendant’s president a letter dated May 16, 1991, that informed the defendant that the major medical plan would be provided through Blue Cross/ Blue Shield, rather than through Travelers. The letter also stated that there would be no change in the level of benefits, only a change in the method of funding the plan. The plaintiff instituted the self-insured program to provide health benefits for all of its employees on July 1, 1991.

On June 19, 1991, the defendant initiated the grievance process, which ultimately brought it to this court. The defendant’s grievance was denied at the first and second steps of the process. Thereafter, the defendant filed for arbitration with the American Arbitration Association. The parties stipulated to the following issues to be determined by the arbitrator: “Did the plaintiff violate the agreement with the defendant when it became self insured on July 1, 1991? If so, what shall be the remedy?” A hearing was held before the arbitrator on numerous days on and between November 5, 1991, and April 28, 1994. On November 2, 1995, the parties agreed to bifurcate the arbitration, deciding first whether the agreement had been violated. If the arbitrator found that the plaintiff violated the agreement, a hearing would be held to determine the remedy.

The arbitrator issued her finding on the merits on December 13, 1995, concluding, “[T]he [plaintiff] violated the collective bargaining agreement with [the defendant] when it became ‘self-insured’ on July 1,1991. In accordance with the patties’ November 2 stipulation, [the arbitrator] retains jurisdiction in the matter of the remedy.” In reaching her conclusion, the arbitrator found that article III, § 3.5.6, of the agreement required the plaintiff, if it proposed a substitute plan, to provide “at least equal or better coverage” that would be “subject to the rules and regulations of the state insurance commissioners office.” “Based on the complete record, it is clear that the [plaintiff] failed the second part of that test, at least, in changing its health care arrangements in July 1991. For the substitute plan, an Administrative Services Only contract with [Blue Cross/Blue Shield] is a form of self insurance (or self-funding, to be precise), and self insurance plans are not subject to regulation by the commissioner.” The parties were unable to negotiate a settlement and proceeded to the second stage of the arbitration.

After holding an additional hearing and determining that the defendant should be made whole, the arbitrator issued the following award on February 16, 1996.

“Accordingly, the proper make-whole remedy is as follows:
“1. The [plaintiff] shall restore the health plans that were in effect on June 30, 1991 or, if such plans are no longer available, implement fully insured plans that provide equivalent or better benefits and coverage.
“2. The [plaintiff] shall deposit in a special escrow account, maintained by [the defendant] and subject to an independent audit, the sum of $1.3 million dollars for each twelve-month period (prorated) subsequent to July 1, 1991, during which the health benefit plans unilaterally implemented by the [plaintiff] remain in effect. After deducting its costs, including reasonable attorneys’ fees and expert fees, [the defendant] shall divide the funds among the bargaining unit members, retirees and survivors in proportion to the period of time each has been subject to the health plans since the changeover in 1991.”

On March 15,1996, pursuant to General Statutes § 52-418, the plaintiff filed an application in the Superior Court to vacate the arbitrator’s award on the ground that the arbitrator had exceeded her powers or so imperfectly executed them that a mutual, final and definite award was not issued, that the award failed to draw its essence from the collective bargaining agreement and that the award violates public policy. The defendant filed an application to confirm the arbitration award pursuant to General Statutes § 52-417.

The trial court found that the arbitrator’s finding with respect to liability conformed with the submission because the applicable section of the agreement contemplated changes in a health benefits insurance carrier only. The substitute health plan provided by the plaintiff as of July 1, 1991, was not provided by an insurance carrier and there was no insured. Therefore, the trial court determined that the arbitrator properly concluded that the plaintiff violated the terms of the agreement and the remedy provided by § 3.5.6 (c) was not applicable because it was to apply only to situations in which there was a change of health insurance carriers. The trial court also concluded that the arbitrator’s award restoring insurance benefits to the defendant’s members as they existed prior to July 1, 1991, was proper and was in accord with the submission.

Although it found that “the arbitrator could easily find that the remedy provided” in the agreement for violations of its substitute health insurance carrier provisions did not apply to the facts of this case, the trial court nonetheless ruled that the arbitrator’s award of damages was punitive. The trial court held that the arbitrator had neither the authority nor jurisdiction to make the monetary award. The trial court granted the plaintiffs application to vacate and denied the defendant’s application to confirm the award. The defendant appealed from the judgment of the trial court.

“The scope of review by the court of an arbitrator’s power to make an award is limited. Arbitration is a creature of contract between the parties and its autonomy requires a minimum of judicial intrusion. . . .The parties themselves, by the agreement of the submission, define the powers of the arbitrator. . . . The submission constitutes the charter of the entire arbitration proceedings and defines and limits the issues to be decided. . . . When the parties have agreed to a procedure and have delineated the authority of the arbitrator, they must be bound by those limits. . . . An application to vacate or correct an award should be granted where an arbitrator has exceeded his power. In deciding whether an arbitrator has exceeded his power, we need only examine the submission and the award to determine whether the award conforms to the submission.” (Citations omitted.) Bic Pen Corp. v. Local No. 134, 183 Conn. 579, 583-84, 440 A.2d 774 (1981).

“It is axiomatic in this jurisdiction that any challenge to an award pursuant to General Statutes (Rev. to 1981) § 52-418 (d) on the ground that the arbitrators exceeded or imperfectly performed their powers is properly limited to a comparison of the award with the submission. ... In order to decide whether the arbitrators have exceeded their authority, the reviewing court must examine the submission together with the award and determine whether the award conforms to the submission.” (Citations omitted.) Trumbull v. Trumbull Police Local 1745, 1 Conn. App. 207, 212, 470 A.2d 1219 (1984).

“In determining whether a submission is unrestricted, we look at the authority of the arbitrator. The authority of an arbitrator to adjudicate the controversy is limited only if the agreement contains express language restricting the breadth of issues, reserving explicit rights, or conditioning the award on court review. In the absence of such qualifications, an agreement is unrestricted.” (Internal quotation marks omitted.) Perkins & Mario, P.C. v. Annunziata, 45 Conn. App. 237, 239-40, 694 A.2d 1388 (1997). The submission in the case now before this court is unrestricted.

“Even in the case of an unrestricted submission, we have, however, recognized three grounds for vacating an award: (1) the award rules on the constitutionality of a statute ... (2) the award violates clear public policy ... or (3) the award contravenes one or more of the statutory proscriptions of § 52-418.” (Citations omitted.) Garrity v. McCaskey, 223 Conn. 1, 6, 612 A.2d 742 (1992).

“[T]he public policy exception to arbitral authority should be narrowly construed and a court’s refusal to enforce an arbitrator’s interpretation of [collective bargaining agreements] is limited to situations where the contract as interpreted would violate some explicit public policy that is well defined and dominant, and is to be ascertained by reference to the laws and legal precedents and not from general considerations of supposed public interests.” (Internal quotation marks omitted.) Watertown Police Union Local 541 v. Watertown, 210 Conn. 333, 340, 555 A.2d 406 (1989). “[W]ith respect to matters of public policy generally, arbitrators exceed their authority if their award orders a party to engage in conduct that is patently illegal or in clear violation of public policy. Stratford v. Local 134, IFPTE, [201 Conn. 577, 585, 519 A.2d 1 (1986)]; Board of Trustees v. Federation of Technical College Teachers, 179 Conn. 184, 195, 425 A.2d 1247 (1979); [R.] Gorman, Basic Text on Labor Law, Unionization and Collective Bargaining (1976) p. 593.” New Haven v. AFSCME, Council 15, Local 530, 208 Conn. 411, 416-17, 544 A.2d 186 (1988).

“A public policy challenge to an arbitration award is rooted in the principle that the parties cannot expect conduct which is illegal or contrary to public policy to receive judicial endorsement any more than parties can expect a court to enforce such a contract between them.” (Internal quotation marks omitted.) State v. Council 4, AFSCME, 27 Conn App. 635, 640, 608 A.2d 718 (1992). “When a challenge to the arbitrators’ authority is made on public policy grounds, the court is not concerned with the correctness of the arbitrators’ decision, but with the lawfulness of enforcing the award.” Perkins & Mario, P.C. v. Annunziata, supra, 45 Conn. App. 240.

I

The defendant first claims that the trial court improperly found that the arbitrator had neither the authority nor jurisdiction to make a monetary award. We agree with the defendant.

A court’s standard of review of an arbitrator’s award is limited. See Bic Pen Corp. v. Local No. 134, supra, 183 Conn. 583. The court may “only examine the submission and the award to determine whether the award conforms to the submission.” Id., 584. “In making such a comparison, where the submission is unrestricted, the court will not review the evidence or the legal questions involved but is bound by the arbitrator’s legal and factual determinations. Game-A-Tron Corporation v. Gordon, 2 Conn. App. 692, 695, 483 A.2d 620 (1984).” Gennarini Construction Co. v. Messina Painting & Decorating Co., 5 Conn. App. 61, 65, 496 A.2d 539 (1985).

The second issue presented to the arbitrator was, if the arbitrator found that the plaintiff had violated the agreement when it became self-insured, what shall be the remedy. The submission did not limit in any manner the remedy the arbitrator could fashion. The parties placed no restrictions on the submission to the arbitrator, such as judicial review. The submission was unrestricted, therefore we cannot review the award for errors of fact or law. See id., 64. We conclude that the arbitrator was empowered to award compensatory damages but not punitive damages, which contravenes public policy. See part IV of this opinion.

II

The second claim raised by the defendant is that the trial court improperly found no evidence that the arbitrator considered the loss to union members, individually or collectively, that resulted from the plaintiffs breach of the agreement. We agree with the defendant. “Where the submission is unrestricted, the award is final and binding and cannot be reviewed for errors of law or fact. Roraback v. Travelers Ins. Co., 4 Conn. App. 21, 23, 492 A.2d 208 (1985).” Gennarini Construction Co. v. Messina Painting & Decorating Co., supra, 5 Conn. App. 64. Therefore, the trial court may not review the arbitrator’s report for errors of fact to determine what evidence she did or did not rely on.

III

The defendant’s third claim is that the trial court improperly concluded that the award of damages was punitive. Part two of the arbitrator’s award states: “The [plaintiff] shall deposit . . . the sum of $1.3 million . . . for each twelve-month period (prorated) subsequent to July 1, 1991, during which the health benefit plans unilaterally implemented by the City remain in effect. After deducting its costs, including reasonable attorneys’ fees and expert fees, [the defendant] shall divide the funds among the bargaining unit members, retirees and survivors . . . .” (Emphasis added.) The trial court could reasonably have ruled that the arbitrator’s words clearly indicate that she intended to compensate the defendant, by way of her award, for attorney’s fees.

The case before this court is one alleging breach of a collective bargaining agreement. Breach of a collective bargaining agreement sounds in contract. See Barnett v. Board of Education, 232 Conn. 198, 208, 654 A.2d 720 (1995). “In an action for breach of contract, the general rule is that the award of damages is designed to place the injured party, so far as can be done by money, in the same position as that he would have been in had the contract been performed.” Lar-Rob Bus Corp. v. Fairfield, 170 Conn. 397, 404-405, 365 A.2d 1086 (1976). Such damages are known as compensatory damages.

The arbitrator acknowledged that the loss to the defendant’s members is the difference between the level of care and the cost of that care provided to them before July 1, 1991, and the level and cost of care after that date. Indeed, the appellate courts of this state have defined consequential damages as “special damages [that] result from the natural consequences of the act complained of ... . Waterbury Petroleum, Products, Inc. v. Canaan Oil & Fuel Co., 193 Conn. 208, 223 n.16, 477 A.2d 988 (1984).” (Emphasis in original; internal quotation marks omitted.) Chris Construction Co. v. May Centers, Inc., 23 Conn. App. 453, 457, 581 A.2d 748 (1990). The arbitrator made no effort to calculate the damages of the union members because, in her opinion, it was too difficult. It is “well established that an award of nominal damages is appropriate where there is insufficient evidence produced at trial to prove actual damages. See, e.g., Expressway Associates II v. Friendly Ice Cream Corp. of Connecticut, 218 Conn. 474, 477, 590 A.2d 431 (1991).” DiNapoli v. Cooke, 43 Conn. App. 419, 424, 682 A.2d 603, cert. denied, 239 Conn. 951, 686 A.2d 124 (1996).

The arbitrator’s award permits the defendant to pay attorney’s fees from the monetary award. In Connecticut, an award of attorney’s fees is an element of punitive damages. See Berry v. Loiseau, 223 Conn. 786, 827, 614 A.2d 414 (1992). Punitive damage awards are not ordinarily available in a contract action unless tortious conduct that is malicious, wilful or reckless is alleged. See Triangle Sheet Metal Works, Inc. v. Silver, 154 Conn. 116, 127-28, 222 A.2d 220 (1966); L. F. Pace & Sons, Inc. v. Travelers Indemnity Co., 9 Conn. App. 30, 47-48, 514 A.2d 766, cert. denied, 201 Conn. 811, 516 A.2d 886 (1986). The defendant has made no claim that the plaintiffs becoming self-insured was malicious, willful or reckless. Therefore, the trial court properly determined that the arbitrator’s award was punitive.

IV

The plaintiff argues that because the second part of the arbitrator’s award of $1,300,000 per twelve month period, including costs and attorney’s fees, was punitive, the award violates public policy, which prohibits the imposition of punitive awards against a municipality and, therefore, the trial court’s judgment vacating the award should be affirmed. The plaintiff claims that by making an award that violates public policy, the arbitrator exceeded her powers or so imperfectly executed them that a mutual, final and definite award was not made. See General Statutes § 52-418. We agree with the plaintiff.

“In the overwhelming majority of jurisdictions which have considered [whether a municipality is liable for punitive damages], it is now firmly established that exemplary or punitive damages are not recoverable unless expressly authorized by statute or through statutory construction .... In denying punitive or exemplary damages, most courts have reasoned that while the public is benefited by the exaction of such damages against a malicious, willful or reckless wrongdoer, the benefit does not follow when the public itself is penalized for the acts of its agents over which it is able to exercise but little direct control.” 18 E. McQuillin, Municipal Corporations (3d Ed. Rev. 1993) § 53.18.10, p. 247. “Punitive damages is a sanction reserved to the State, a public policy of such magnitude as to call for judicial intrusion to prevents it contravention. Since enforcement of an award of punitive damages as a purely private remedy would violate strong public policy, an arbitrator’s award which imposes punitive damages should be vacated.” Garrity v. Lyle Stuart, Inc., 40 N.Y.2d 354, 356, 353 N.E.2d 793, 386 N.Y.S.2d 831 (1976). We agree.

“In the United States, the general rule of law known as the American Rule is that a prevailing litigant ordinarily is not entitled to collect a reasonable attorney’s fee from the opposing party as part of [its] damages or costs. . . . There are certain exceptions to this rule. ... In the main, exceptions are based upon statutory or contract provisions authorizing the recovery of attorney’s fees by a prevailing litigant.” (Internal quotation marks omitted.) Raph v. Vogeler, 45 Conn. App. 56, 65, 695 A.2d 1066, cert. denied, 241 Conn. 920, 696 A.2d 342 (1997). The defendant has not identified any statutory or contractual provision permitting the arbitrator to award it attorney’s fees in this matter.

The plaintiff, on the other hand, has identified statutes that support its claim that punitive awards against municipalities are contrary to public policy. “In arriving at a decision, the arbitration panel shall give priority to the public interest and the financial capability of the municipal employer, including consideration of other demands on the financial capability of the municipal employer. . . .” General Statutes § 7-473c (d) (2). The defendant does not dispute that the plaintiffs becoming self-insured was the result of a severe fiscal crisis and a large projected budget deficit. An award of damages punitive in nature is contrary to the public policy stated in § 7-473c (d) (2). Therefore, the trial court properly vacated the arbitration award. When an arbitration award is vacated pursuant to § 52-418, the trial court cannot properly confirm an award. See General Statutes § 52-417.

The judgment is affirmed.

In this opinion the other judges concurred.

       Although the defendant’s brief states that the parties’ agreement was before the trial court, the agreement was not made part of the record before this court.

       The hearing was concluded on April 28, 1994, after which the arbitrator suspended consideration of the matter at the request of the parties, who were engaged in settlement negotiations.

       General Statutes § 52-418 (a) provides: “Upon the application of any party to an arbitration, the superior court for the judicial district in which one of the parties resides or, in a controversy concerning land, for the judicial district in which the land is situated or, when the court is not in session, any judge thereof, shall make an order vacating the award if it finds any of the following defects: (1) If the award has been procured by corruption, fraud or undue means; (2) if there has been evident partiality or corruption on the part of any arbitrator; (3) if the arbitrators have been guilty of misconduct in refusing to postpone the hearing upon sufficient cause shown or in refusing to hear evidence pertinent and material to the controversy or of any other action by which the rights of any party have been prejudiced; or (4) if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.”

       General Statutes § 52-417 provides: “At any time within one year after an award has been rendered and the parties to the arbitration notified thereof, any party to the arbitration may make application to the superior court for the judicial district in which one of the parties resides or, in a controversy concerning land, for the judicial district in which the land is situated or, when the court is not in session, to any judge thereof, for an order confirming the award. The court or judge shall grant such an order confirming the award unless the award is vacated, modified or corrected as prescribed in sections 52-418 and 52-419.”

       ‘'Punitive damages are not ordinarily recoverable for breach of contract. Restatement, 1 Contracts § 342; 5 [J.] Corbin, Contracts § 1077; [C.] McCormick, Damages § 81. This is so because, as lucidly [reasoned] by Professor Corbin in the passage cited, punitive or exemplary damages are assessed by way of punishment, and the motivating basis does not usually arise as a result of the ordinary private contract relationship. L. F. Pace & Sons, Inc. v. Travelers Indemnity Co., 9 Conn. App. 30, 47-48, 514 A.2d 766, cert. denied, 201 Conn. 811, 516 A.2d 886 (1986).” (Internal quotation marks omitted.) Barry v. Posi-Seal International, Inc., 40 Conn. App. 577, 584, 672 A.2d 514, cert. denied, 237 Conn. 917, 676 A.2d 1373 (1996).

       The plaintiff offered to give the members six months to prove their individual losses but the arbitrator found “that would place an unfair onus on employees to document losses.”

       “ ‘Nominal damages are usually fixed at one cent, one dollar, or some similar small amount. . . . While no exact standard has been fixed as to what amount should be given as nominal damages, it must be “insubstantial,” a few cents or dollars.’ [C.] McCormick, Damages [1935] § 21, p. 87.” Connecticut Employees Union “Independent,” Inc. v. Connecticut State Employees Assn., Inc., 183 Conn. 235, 252, 439 A.2d 321 (1981).

       See also Newport v. Fact Concerts, Inc., 453 U.S. 247, 101 S. Ct. 2748, 69 L. Ed. 2d 616 (1981); Genty v. Resolution Trust Corp., 937 F.2d 899 (3d Cir. 1991); Michaud v. Bangor, 160 Me. 285, 203 A.2d 687 (1964); Staudacher v. Buffalo, 155 App. Div. 2d 956, 547 N.Y.S.2d 770 (1989); Haefner v. Apcoa Parking, Inc., 130 Misc. 2d 203, 500 N.Y.S.2d 605 (1986).

       We note that the arbitrator’s award permits the defendant to deduct costs from the award, which conflicts with the provisions of § 3.5.6. (c) of the agreement, which provides: “The cost of AAA shall be split equally between the parties . . . .”


author: FOTI, J.

text:
    EUGENE MERCER v. COMMISSIONER OF CORRECTION
    (AC 17663)
    Foti, SchaUer and Sullivan, Js.

      Argued May 26
    officially released August 18, 1998

      Ryan Craig, certified legal intern, with whom were J. L. Pottenger, Jr., and, on the brief, Jean E. Giles, certified legal intern, for the appellant (petitioner).

      Jo Anne Sulik, assistant state’s attorney, for the appellee (respondent).
   Opinion

FOTI, J.

The petitioner appeals from the judgment of the habeas court dismissing his amended petition. The petitioner claims that the habeas court improperly found that (1) he faded to preserve his claim that he was denied due process as a result of an inherently prejudicial courtroom atmosphere and was therefore required to satisfy the Wainwright v. Sykes, 433 U.S. 72, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977), standard for review of his constitutional claim, (2) he was not denied the effective assistance of trial counsel and (3) he was not denied the effective assistance of appellate counsel. We affirm the judgment of the habeas court.

The following facts relevant to this appeal are recited in our Supreme Court’s decision affirming the judgment of conviction. State v. Mercer, 208 Conn. 52, 544 A.2d 611 (1988). “On the morning of December 12, 1984, the victim parked her car in the parking lot of the building where she worked in Stamford. As she got out, the defendant, who had been standing nearby, pulled out a gun and said, ‘Lady, I want the keys.’ The victim began to walk away, and the defendant shot her in the head. When she collapsed, the defendant ran toward her, took her keys, jumped into her car and sped away. The victim subsequently died from the gunshot wound.” Id., 54.

In 1989, the petitioner filed a petition for a writ of habeas corpus, claiming, inter alia, ineffective assistance of trial and appellate counsel in that each failed to challenge a hearing before the trial court “inquiring into the consequences of his suffering from AIDS.” Mercer v. Commissioner of Correction, 230 Conn. 88, 92, 644 A.2d 340 (1994). The habeas court dismissed the petition, and we affirmed the judgment of the habeas court. Mercer v. Commissioner of Correction, 31 Conn. App. 771, 626 A.2d 831 (1993). Our Supreme Court reversed the judgment and remanded the matter for further proceedings consisting of an evidentiary hearing on the petitioner’s claims. Mercer v. Commissioner of Correction, supra, 230 Conn. 88.

Thereafter, the petitioner amended his petition to raise four claims. The petitioner first claimed that his rights to due process and a fair trial were violated by an inherently prejudicial courtroom atmosphere. He then claimed that “[t]he injection of ‘AIDS’ into the courtroom, through communications to jurors and the courthouse atmosphere, actually prejudiced the trial jury and violated” his rights to due process and a fair trial. The petitioner’s third and fourth claims were the ineffective assistance of trial and appellate counsel.

The habeas court filed a seventy-two page memorandum of decision, detailing the evidence presented and its findings, stating, inter alia: “While evidence . . . that some of the jurors discussed the petitioner’s medical condition tends to demonstrate that at least some of them had concerns related to the communicability of the petitioner’s disease, [this] court will neither imply nor infer . . . that such concerns bore on the impartiality of the jury . . . .” The court also stated: “[I]t is [this] court’s determination that the evidence against the petitioner was overwhelmingly strong, thereby reducing the risk that . . . external contacts may have influenced the jury’s verdict.” With respect to the hearing on the petitioner’s medical condition, the court concluded that the petitioner failed to establish that he was prejudiced by the public revelation of his medical condition.

“We cannot, in a habeas corpus appeal, disturb underlying historical facts found by the habeas court unless they are clearly erroneous. . . . The habeas court judge, as trier of the facts, is the sole arbiter of the credibility of witnesses and the weight to be given to their testimony.” (Citation omitted.) Beasley v. Commissioner of Correction, 47 Conn. App. 253, 262, 704 A.2d 807 (1997), cert. denied, 243 Conn. 967, 707 A.2d 1268 (1998).

I

The petitioner first claims that the habeas court improperly found that he failed to preserve his claim that he was denied due process as a result of an inherently prejudicial courtroom atmosphere and was therefore required to satisfy the standard enunciated in Wainwright v. Sykes, supra, 433 U.S. 72, for review of his constitutional claim.

At the habeas trial, the petitioner stated that his “inherent prejudice” claim was different from the claims raised and reviewed on direct appeal. The habeas court accepted the petitioner’s position that he was raising a claim different from that raised on direct appeal.

“The appropriate standard for reviewability of a constitutional claim not raised before sentencing or on direct appeal is the Wainwright cause and prejudice standard. Jackson v. Commissioner of Correction, 227 Conn. 124, 133-34, 136, 629 A.2d 413 (1993); Johnson v. Commissioner of Correction, 218 Conn. 403, 412-13, 589 A.2d 1214 (1991); Bowers v. Commissioner of Correction, [33 Conn. App. 449, 451, 636 A.2d 388, cert. denied, 228 Conn. 929, 640 A.2d 115 (1994)]. The petitioner must show good cause for his failure to preserve a claim at trial and actual prejudice resulting from the alleged constitutional violation. Daniels v. Warden, 28 Conn. App. 64, 71, 609 A.2d 1052, cert. denied, 223 Conn. 924, 614 A.2d 820 (1992). Baez v. Commissioner of Correction, 34 Conn. App. 236, [240], 641 A.2d 147, cert. denied, 231 Conn. 905, 906, 648 A.2d 149 (1994).” (Internal quotation marks omitted.) Larkin v. Commissioner of Correction, 45 Conn. App. 809, 813, 699 A.2d 207 (1997). Failing to recognize the factual or legal basis for a claim or failing to raise a claim despite recognizing it does not constitute cause for a procedural default. Johnson v. Commissioner of Correction, supra, 422.

We do not agree with the petitioner’s argument that his inherent prejudice claim was reviewed on direct appeal, thereby preserving it for habeas review, and that he merely expanded the record before the habeas court. We also find no merit in the petitioner’s claim that he has not defaulted on his inherent prejudice claim because no rule of practice mandates the raising of such a claim. We agree with the habeas court that “[i]f [it] accepted the petitioner’s assertion that procedural default operates only when a trial defendant has violated a mandatory rule of procedure, then it would be wise for defendants, whose trials are running afoul, to forbear making claims or objections intended to right the trial process, knowing that they may thereby be precluded from review on direct appeal, in the expectation that their constitutional claims may be aired for the first time at a habeas trial, the timing of which is not prescribed by any statute of limitations. To make habeas review available under such circumstances would not only demean the Great Writ but would render less meaningful trial court procedural rules intended to enhance the orderliness of trial proceedings, to safeguard the fairness of the process and to provide a framework for appellate review.”

We also do not accept as valid the petitioner’s claim that he did not default his inherent prejudice claim because the trial court “failed in its responsibility to assist or protect him.” Under the circumstances as they existed, we cannot conclude that the habeas court’s finding of procedural defaults was improper.

Because we conclude that the habeas court properly determined that the petitioner defaulted his inherent prejudice claim, we also must conclude that the court properly required the petitioner to demonstrate cause for the default and prejudice arising therefrom.

The habeas court, in addressing the petitioner’s failure to demonstrate cause for the default, determined that several of the due process violations alleged by the petitioner were known to counsel at the time of trial and should have been addressed in accordance with the applicable rules of procedure. Moreover, the petitioner does not claim that there was no legal basis for making his inherent prejudice claim at the time of trial'so as to satisfy the requirement to demonstrate “cause.” See Johnson v. Commissioner of Correction, supra, 218 Conn. 420. The petitioner, therefore, has failed to demonstrate good cause for his failure to preserve his inherent prejudice claim at trial or on direct appeal.

While the petitioner does not claim that he suffered actual prejudice as a result of an inherently prejudicial courtroom atmosphere, he does claim that he need not establish actual prejudice if he can establish that there has been an “inherent deprivation of due process” and, he claims further, the evidence of guilt presented by the state is not relevant to such a determination. We do not agree. We conclude, therefore, that the habeas court properly determined that the petitioner is not entitled to habeas review of the merits of his inherent prejudice claim.

II

The petitioner next claims that the habeas court improperly found that he was not denied the effective assistance of trial counsel by his trial attorney’s failure (1) to seek to close a medical hearing to the public, (2) to seek to direct sheriffs not to wear latex gloves in the courtroom, (3) to request proper jury instruction on circumstantial evidence and (4) to seek relief after receiving information that a stick figure had been drawn on the jury room blackboard.

The standard to be applied by habeas courts in determining whether an attorney effectively represented a criminal defendant is set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). “In order for a criminal defendant to prevail on a constitutional claim of ineffective assistance of counsel, he must establish both (1) deficient performance, and (2) actual prejudice. Phillips v. Warden, 220 Conn. 112, 132, 595 A.2d 1356 (1991). Thus, he must establish not only that his counsel’s performance was deficient, but that as a result thereof he suffered actual prejudice, namely, that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, [supra, 694], In this context, a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different, does not require the petitioner to show that counsel’s deficient conduct more likely than not altered the outcome in the case. Id., 693. Rather, it merely requires the petitioner to establish a probability sufficient to undermine confidence in the outcome. Id., 694.” (Internal quotation marks omitted.) Bunkley v. Commissioner of Correction, 222 Conn. 444, 445-46, 610 A.2d 598 (1992).

“An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.” Strickland v. Washington, supra, 466 U.S. 691. “Even if a defendant shows that particular errors of counsel were unreasonable, therefore, the defendant must show that they actually had an adverse effect on the defense. It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding.” Id., 693. Rather, the defendant must show that there is a “reasonable probability” that the errors affected the outcome of the proceeding. Id., 694.

A habeas court “hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury. Some of the factual findings will have been unaffected by the errors, and factual findings that were affected will have been affected in different ways. Some errors will have had a pervasive effect on the inferences to be drawn from the evidence, altering the entire evidentiary picture, and some will have had an isolated, trivial effect. ... [A] court making the prejudice inquiry must ask if the defendant has met the burden of showing that the decision reached would reasonably likely have been different absent the errors.” Id., 695-96.

In the present case, the habeas court found trial counsel’s performance deficient in each of the four claimed areas. It concluded, however, that the second prong of Strickland had not been met.

The petitioner argues that any extrinsic communication or contact with a juror is presumptively prejudicial. He argues that trial counsel should have moved for a mistrial after receiving information that jurors had been exposed to extrinsic communications regarding the petitioner’s medical condition. In the alternative, he argues that trial counsel should have requested the court to conduct a hearing to determine whether jurors were influenced or prejudiced by the communications. Further, the petitioner claims that the habeas court improperly failed to make the required finding of whether any jurors were actually prejudiced. We do not agree that the habeas court improperly concluded that the petitioner was not prejudiced by his counsel’s deficient performance.

The habeas court found, and we agree, that “the trial evidence of the petitioner’s guilt was overwhelming.” We also note that none of trial counsel’s acts or omissions affect the state’s evidence of guilt. We must conclude, therefore, that the habeas court properly determined that the petitioner did not sustain his burden of showing that there is a reasonable probability that the decision reached would have been different absent trial counsel’s deficient performance. Because the petitioner has failed to establish that he was actually prejudiced by his counsel’s deficient performance, we cannot conclude that he is burdened by an unreliable conviction.

III

The petitioner finally claims that the habeas court improperly found that he was not denied the effective assistance of appellate counsel as a result of his attorney’s failure to raise on appeal the petitioner’s absence from a medical hearing.

On August 6,1985, a hearing on the petitioner’s medical condition was conducted in the absence of the petitioner. This hearing was conducted over objection from the petitioner’s trial counsel. The petitioner’s appellate counsel did not challenge the petitioner’s absence from the medical hearing on direct appeal.

The habeas court decided the petitioner’s claim that he was denied the effective assistance of appellate counsel under the second prong of Strickland, The habeas court concluded that “the court does not find any likelihood that reasonable men and women, serving as jurors in the [petitioner’s] trial, would have come to a different conclusion regarding the petitioner’s guilt assuming that there had been no mention of AIDS to any of them at any time relevant to the proceedings.” It follows, therefore, that the hearing on the petitioner’s medical condition had no effect on the outcome of the petitioner’s trial. We conclude that the petitioner has failed to sustain his burden of showing that his absence from the hearing, and appellate counsel’s failure to challenge that absence, resulted in actual prejudice.

The trial and the appeal following a judgment of conviction are not separate and distinct proceedings but are part of the continuum of the process of adjudication. Bunkley v. Commissioner of Correction, supra, 222 Conn. 459. “[T]he trial seeks to determine whether the state has proven the defendant guilty beyond a reason-' able doubt. The appeal seeks to determine whether, in the process of that adjudication, the trial judge committed error which requires either a new trial or a judgment of acquittal. State v. Cosby, 6 Conn. App. 164, 173-74, 504 A.2d 1071 (1986).” (Internal quotation marks omitted.) Bunkley v. Commissioner of Correction, supra, 459. The petitioner has not demonstrated that appellate counsel failed to raise an issue that, had it been raised, would have resulted in a new trial. Nor has he demonstrated that the failure undermined the reliability of the conviction.

The judgment is affirmed.

In this opinion the other judges concurred.

       The petitioner also claims that the habeas court improperly found that he was not denied due process as a result of actual juror prejudice. The petitioner’s briefing of this claim consists of one sentence that states: “[The petitioner] hereby preserves his claim that he was denied due process of law because of actual juror prejudice, and he incorporates [a portion of his habeas trial brief that was included in the appendix to his appellate brief].” “We are not required to review issues that have been improperly presented to this court through an inadequate brief. Connecticut National Bank v. Giacomi, 242 Conn. 17, 44-45, 699 A.2d 101 (1997). Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly. . . . Cummings v. Twin Tool Mfg. Co., 40 Conn. App. 36, 45, 668 A.2d 1346 (1996).” (Internal quotation marks omitted.) State v. Henderson, 47 Conn. App. 542, 558, 706 A.2d 480, cert. denied, 244 Conn. 908, 713 A.2d 829 (1998). Accordingly, we decline to review this claim due to inadequate briefing.

       While in custody awaiting trial, the petitioner was informed that he was infected with HTLV-III, the virus associated with AIDS, and was suffering from AIDS related complex but had not developed the symptoms marking the onset of full-blown AIDS. State v. Mercer, supra, 208 Conn. 55. “On August 6,1986, the trial court, sua sponte, ordered a hearing on the [petitioner’s] medical condition. . . . The focus of the hearing was the risk of contagion to other persons, and in particular to the jurors, created by the [petitioner’s) presence in the courtroom during trial.” Id.

       The Supreme Court noted that the petitioner’s direct appeal “did not contest, in any way, the validity of the initial hearing into the dangers posed by the petitioner’s suffering from AIDS.” Mercer v. Commissioner, supra, 230 Conn. 91.

       On direct appeal, our Supreme Court rejected the petitioner’s claim that his constitutional right to a fair trial was violated by the trial court’s disclosure to all prospective jurors that he had AIDS. State v. Mercer, supra, 208 Conn. 62.

       During the habeas trial, the petitioner’s counsel stated that “with regard to the inherent prejudice claim, it’s a completely different claim from that raised on direct appeal . . . .”

       On numerous occasions, the habeas court’s memorandum of decision points out that the petitioner failed to raise his due process claims, set forth in the first two counts of his amended petition, at trial or on direct appeal. On appeal, the petitioner claims that his “inherent prejudice claim is the same legal claim as that litigated on direct appeal, [however] he is not thereby barred by res judicata from bringing it on habeas.” He also claims that although his “inherent prejudice claim . . . overlaps that litigated on direct appeal, it also differs substantially in size, scope and nature from what the Connecticut Supreme Court had before it back in 1988.”

       The habeas court found the following procedural defaults: “With respect to the presence of four or more sheriffs in the courtroom wearing latex gloves, counsel had the opportunity to observe these circumstances and to ask the court, in its supervisory capacity, to take remedial action. Similarly, with respect to pretrial publicity, it is clear from a review of the newspaper articles presented at the habeas hearing, that the state’s attorney, defense counsel and the petitioner all spoke to the press. Should [petitioner’s attorney] have wished a change of venue, Practice Book §§ 809 and 835, the applicable rules then in effect, set forth the required procedure. Also, counsel had the opportunity, pursuant to Practice Book § 887, to move, at any time during the trial, for a mistrial for an occurrence or conduct inside or outside the courtroom which counsel believed may have resulted in substantial and irreparable prejudice to the petitioner. Thus, upon learning that a stick figure had been drawn on the jury room blackboard, counsel could have asked the court to conduct a voir dire examination of the jury, and could have sought a mistrial based on a claim of irreparable prejudice to the petitioner. Counsel had the right, too, pursuant to Practice Book § 894, to seek an order from the court to both counsel and any witnesses prohibiting any extra-judicial statements concerning the proceedings, and counsel had the right, pursuant to Practice Book § 895, to request that the August 6, 1985 medical hearing be closed to the public. Finally, counsel had the right, pursuant to Practice Book § 902, to move for a new trial.”

       Although the habeas court concluded that the petitioner had procedurally defaulted the claims set forth in counts one and two of his amended petition, and had not cured his procedural default through a showing of cause and prejudice, it nevertheless chose to review the petitioner’s claims of “jury impropriety and external communications to the jury because of their constitutional magnitude.” The habeas'court concluded that “[t]he abundance of evidence pointing to the petitioner’s guilt negates the presumption that these [improprieties] may have affected [the jury’s verdict].”

       The state argues that although the habeas court made a determination that trial counsel committed errors of “professional magnitude,” these acts or omissions do not constitute deficient performance.

       Appellate counsel’s failure to raise as a distinct issue on appeal the constitutionality of the trial court’s sua sponte decision to conduct a hearing on the petitioner’s medical condition is not before us on appeal.

       “In order for a criminal defendant to prevail on a constitutional claim of ineffective assistance of counsel, he must establish both (1) deficient performance, and (2) actualprejudice." (Emphasis added; internal quotation marks omitted.) Taft v. Commissioner of Correction, 47 Conn. App. 499, 503, 703 A.2d 1184 (1998).

       The petitioner claims that his absence during a “critical stage” of the trial deprived him of his constitutional right to confront the witnesses against him as guaranteed by the sixth amendment to the United States constitution. The petitioner, however, cannot demonstrate that (1) witnesses adverse to the petitioner testified at the hearing, (2) issues concerning the petitioner’s guilt or innocence were discussed, (3) evidence relating to the charge was presented, or (4) his absence somehow interfered with his right to present a defense.


author: LANDAU, J.

text:
    CHRISTOPHER J. MEYER v. JOHN W. COLLINS ET AL. CHRISTOPHER J. MEYER ET AL. v. TOWN OF VERNON ET AL.
    (AC 16920)
    (AC 16921)
    Landau, Schaller and Sullivan, Js.
    Argued March 23
    officially released August 18, 1998

      Paul H. Gamache, for the appellants (plaintiffs).

      George J. Kelly, Jr., for the appellees (defendants).
   Opinion

LANDAU, J.

The plaintiffs appeal from the judgment denying their application in the first case for a writ of quo warranto seeking to oust the defendants from their appointments as police sergeants of the town of Vernon (town) .The plaintiff Christopher J. Meyer also appeals from the judgment denying his request for a writ of mandamus to require the town to administer another examination for the position of police sergeant. On appeal, the plaintiffs claim that the trial court improperly (1) concluded that the town had not exceeded its authority in creating a list of eligible candidates for the position of sergeant when the stated duration exceeded that authorized by the town rules and regulations and (2) interpreted the town rules and regulations. We affirm the judgments of the trial court.

The following facts and procedural history are relevant to the disposition of this appeal. In May and June of 1995, the town conducted an examination for the position of police sergeant. The plaintiff Christopher J. Meyer and the defendants John W. Collins, Paul G. Miffitt and Donald S. Weglarz are police officers employed by the town who sat for the examination along with other police officers. On the basis of the results of the examination, the police department published an eligibility list for the position of sergeant, ranking six individuals in the order of their scores. The list was “established effective June 21, 1995 and shall expire June 30, 1997.”

The mayor, Edward Slattery, by letter dated July 18, 1995, appointed Collins, who had the highest score, to the position of police sergeant effective July 23, 1995, and Miffitt, who had the second highest score, to the position of sergeant effective July 24, 1995. The succeeding mayor, Tony Muro, by letter dated September 10, 1996, confirmed the appointment of Weglarz, who had the fourth highest score, to the position of sergeant effective September 29,1996. By letter dated September 27, 1996, Muro stated to the chief of police that “[t]his is to confirm that I have authorized a one year extension of the certified list for promotion to Sergeant, pursuant to Section 8.2 K of the Town of Vernon Personnel Rules & Regulations.” The letter further provided that “the certified fist was established with an effective date of June 21, 1995. This extension therefore should be considered to be effective as of June 21, 1996.”

On October 11, 1996, Christopher J. Meyer filed two complaints, one in the nature of quo warranto and one in the nature of mandamus, against the defendants. On December 18, 1996, the plaintiff filed a motion to add Paul E. Meyer as a party plaintiff, which the trial court granted. The plaintiffs sought, in their quo warranto action, to oust the defendants from their positions as sergeants and, in their mandamus action, to compel the town to hold another examination and to compile a new list of candidates. The trial court dismissed the quo warranto complaint as to Christopher J. Meyer for lack of standing, but permitted Paul E. Meyer to proceed with the quo warranto action. The trial court, however, denied the plaintiff’s quo warranto action and mandamus action. This court granted the plaintiffs motion for consolidation of the appeals from the quo warranto and mandamus actions.

I

The plaintiff first argues that the trial court improperly concluded that the town had not exceeded its authority in creating a list of eligible candidates for the position of sergeant when the stated duration exceeded that authorized by the town rules and regulations. The plaintiff argues that as a result of the durational error, the entire list is void ab initio. We disagree.

“Rules and regulations adopted pursuant to the authority granted by [a town] charter carry a presumption of validity and have the force and effect of law. Griffin Hospital v. Commission on Hospitals & Health Care, 200 Conn. 489, 497, 512 A.2d 199, appeal dismissed, 479 U.S. 1023, 107 S. Ct. 781, 93 L. Ed. 2d 819 (1986).” Civil Service Commission v. Pekrul, 41 Conn. Sup. 302, 313, 571 A.2d 715 (1989), aff'd, 221 Conn. 12, 601 A.2d 538 (1992). When construing a town charter, the court must determine the intent of the legislative body that promulgated the rules. McAdams v. Barbieri, 143 Conn. 405, 418, 123 A.2d 182 (1956). “To determine the intent of the charter, ‘ [t]he enactment must be examined in its entirety and its parts reconciled and made operative so far as possible.’ [Id.]” New Haven Police Local 530 v. Logue, 188 Conn. 290, 297, 449 A.2d 990 (1982). “Intent is to be ascertained from the language used, if it is plain and unambiguous; or, if it is not, by considering the legislation in the light of all of its provisions, the object which it seeks to accomplish, the pre-existing legislation upon the same subject matter, and all other relevant circumstances. . . . The words used must be accorded their commonly accepted meaning.” (Citation omitted.) McAdams v. Barbieri, supra, 415-16.

Section 8.2 K of the town rules and regulations clearly provides that the list “shall be effective for one (1) year.” The plaintiff, however, argues that the list is void ab initio because the stated duration on the list exceeds the one year duration provided in § 8.2 K. The plaintiff argues that the issue in the present appeal is “the integrity of the civil service system.” The plaintiff cites Resnick v. Civil Service Commission, 156 Conn. 28, 32, 238 A.2d 391 (1968), and Walker v. Jankura, 162 Conn. 482, 294 A.2d 536 (1972), for the proposition that “any violation of the civil service law, regardless of the consequences, impugns the integrity of the merit system and, therefore, must be fatal.”

In Resnick, our Supreme Court held an examination illegal and void because, during an interview required as part of an open competition for a municipal position, the interviewer asked the plaintiff improper questions regarding his political and religious affiliations. The Resnick court analyzed the “object of the legislation” to determine whether it should declare the examination illegal and void due to the illegal questions. Resnick v. Civil Service Commission, supra, 156 Conn. 30. The court reasoned that the purpose of open competitive examinations is to ensure that civil service appointments are given to those best qualified and “thus advance the cause of civil service.” Id., 30-31. The court stated that “[t]he purpose of these laws is to ensure the appointment of personnel possessed of the qualifications which are necessary for a fit and intelligent discharge of duties pertaining to public office and to free public employees from the fear of political and personal prejudicial reprisal.” Id., 31. The court reasoned that the prohibition against asking questions relating to political and religious affiliations “was intended to eliminate a reversion to political or religious affiliation as a test for the appointment to a position so as to contravene that which had been accomplished in the way of civil service reform.” Id. As a result, the court held the examination illegal and void because even when good faith or substantial compliance on the part of the municipality is claimed, such questioning would “open the door to abuses which the law was designed to suppress.” Id., 33.

In Walker, our Supreme Court affirmed the trial court’s judgment, holding illegal and void an eligibility list established as a result of an examination given in violation of the town charter and civil service rules. Walker v. Jankura, supra, 162 Conn. 482. Pursuant to the town charter, the personnel director was required to hold an examination for the position of police inspector within 120 days of the establishment of a vacancy for such position. Id., 485. The applicants for the examination were required to have accrued three years of experience to qualify to take the examination. Id. The personnel director, however, intentionally delayed holding the examination until after the required 120 day period had passed to enable two additional candidates to complete the necessary three years experience. Id., 486. The court reasoned that the 120 day requirement was “of the essence of the thing to be accomplished and that it relate[d] to [a] matter of substance rather than to [a] matter of convenience.” Id., 489. As a result, the court concluded that the statute was mandatory. Id. The court recited the principle that civil service law “provides for a complete system of procedure designed to secure appointment to public positions of those whose merit and fitness has been determined by examination, and to eliminate as far as practicable the element of partisanship and personal favoritism in making appointments.” (Internal quotation marks omitted.) Id., 490. Under this factual scenario, the Walker court affirmed the trial court’s decision that “the only reasonable remedy is to order that the list established as a result of the examination be vacated, the examination be held again and that the new examination be open only to candidates who possessed the requisite experience and qualifications . . . .” Id., 487.

Unlike the circumstances present in Resnick and Walker, the mayor, who is charged with making the appointments, appointed Collins and Miffitt to the position of sergeant pursuant to the requirements of the town charter. In fact, the mayor appointed Collins and Miffitt the month following the creation of the eligibility list. Further, the policy considerations in Resnick and Walker do not exist in the present case. Collins and Miffitt were appointed within the period of time contemplated by the rules. See State ex rel. Chernesky v. Civil Service Commission, 141 Conn. 465, 470, 106 A.2d 713 (1954), in which the court held that “[a] limitation upon the time during which an eligibility list remains effective is in the public interest. That interest is fostered by requiring those remaining upon a list to resubmit themselves after a lapse of time to demonstrate anew their fitness for original or promotional appointment.” Unlike the situation in Walker, it is reasonable in the present case to invalidate the duration stated on the list in favor of the one year- duration provided in the town charter. See Marsala v. Bridgeport, 15 Conn. App. 323, 324-25 n.1, 544 A.2d 191, cert. dismissed, 209 Conn. 808, 548 A.2d 437 (1988) (court invalidated only last day of appointment flawed by inclusion of extra day).

Because we conclude that the list is not void ab initio, we conclude that the appointments of Collins and Miffitt are valid, as they were made within the period of time provided in the town charter. On the other hand, to determine whether the appointment of Weglarz was valid, we must determine whether the mayor properly extended the list for the second year, during which Weglarz was appointed.

II

The plaintiff next argues that the mayor’s allegedly retroactive extension of the list was untimely and unlawful and, as a result, the appointment of Weglarz is illegal and void. In support of this argument, the plaintiff argues that the plain meaning of § 8.2 K is that the list expires one year from the date it becomes effective unless the mayor extends it prior to such expiration. The plaintiff argues that the mayor failed to extend the list prior to its expiration as evidenced by a letter from the mayor to the chief of police dated subsequent to the expiration of the list. We disagree.

Section 8.2 K simply provides that “[t]he certification list shall be effective for one (1) year; it can be extended up to one additional year by the Mayor.” Neither the town charter nor the personnel rules and regulations prescribe the manner in which the mayor may extend the list or the time during which the extension may take place. Therefore, we are unaware of any required procedures for the mayor to extend an eligibility list. Furthermore, the letter from the mayor to the chief of police provides that “[t]his is to confirm that I have authorized a one year extension of the certified fist for promotion to Sergeant, pursuant to Section 8.2 K of the Personnel Rules & Regulations.” (Emphasis added.) The letter is ambiguous. It can be read to the effect either that the mayor was confirming an extension that he had already made or that the mayor was then making the extension. Therefore, although the letter is dated subsequent in time to the expiration of the first year of the list, we are left to speculate as to the actions that the mayor had already taken with regard to extending the list prior to the date of the letter.

Under these circumstances, we turn to the principle of law that “ ‘[p]ublic officers, acting in their official capacity, are presumed, until the contrary appears, to have acted legally and properly.’ Brookfield v. Candlewood Shores Estates, Inc., 201 Conn. 1, 6, 513 A.2d 1218 (1986).” Beechwood Garden Tenants’ Assn. v. Dept. of Housing, 214 Conn. 505, 515, 572 A.2d 989 (1990). In the present case, the presumption that the mayor acted legally and properly governs, as the plaintiff has not shown the contrary.

The judgments are affirmed.

In this opinion the other judges concurred.

       The plaintiffs are Christopher J. Meyer and Paul E. Meyer. Christopher J. Meyer originally brought these actions on his own behalf and subsequently filed a motion to add Paul Meyer as a party plaintiff in the quo warranto action, which was granted by the trial court.

       General Statutes § 52-491 provides in relevant part: “When any person . . . usurps the exercise of any office ... the Superior Court may proceed, on a complaint in the nature of a quo warranto, to punish such person . . . for such usurpation, according to the course of the common law and may proceed therein and render judgment according to the course of the common law.”

       The trial court’s memorandum of decision did not address the merits of the mandamus action because it denied the relief sought in the quo warranto action. The plaintiff in the mandamus action, Christopher J. Meyer, has appealed from the denial of his request for a writ of mandamus to preserve his right to have the matter retried in the event of a reversal by this court.

       The list provided in relevant part as follows:
      “1. Collins, John W. 91.456
      “2. Miffitt, Paul G. 88.332
      “3. Meyer, Christopher J. 84.082
      “4. Weglarz, Donald S. 82.926”

       Rule 8.2 K provides: “Duration of List: The certification list shall be effective for one (1) year; it can be extended up to one additional year by the Mayor.”

       The following parties have standing to proceed in a quo warranto action: the government that created the office in question, one entitled to claim the office and a taxpayer of the town in which the charter authorizes the office. Carleton v. Civil Service Commission, 10 Conn. App. 209, 216, 522 A.2d 825 (1987). The trial court found that Christopher J. Meyer was neither the governmental entity nor a taxpayer of the town of Vernon. Further, the court found that because the list names only those who are eligible, leaving the town with discretion to choose among those with the three highest scores, Christopher J. Meyer was not entitled to claim the office. As a result, the trial court concluded that Christopher J. Meyer lacked standing to proceed. Nevertheless, Paul E. Meyer’s interest and standing in this matter is as a resident and taxpayer of the town of Vernon.
      Although Christopher J. Meyer and Paul E. Meyer both appealed from the denial of their application for a writ of quo warranto, neither argued that the trial court improperly dismissed the complaint as to Christopher J. Meyer for lack of standing. As a result, we will address only Paul E. Meyer’s appeal. Hereinafter, we refer to Paul E. Meyer as the plaintiff.

       The plaintiff cites several additional cases for the proposition that the list is illegal and void in light of Connecticut decisions that have “uniformly recognized the importance of preserving the integrity of the civil service system.” The plaintiffs reliance on such decisions is misplaced because unlike in the present case, the rules of the municipalities in those cases contained provisions expressly requiring cancellation of the list or appointments made pursuant to it in certain circumstances or the practice of the town flouted the policy behind limitations on eligibility lists. See Cassella v. Civil Service Commission, 202 Conn. 28, 36, 519 A.2d 67 (1987) (examination taken by plaintiff illegally altered in his favor; thus, promotion not according to merit, fitness); State ex rel. Gaski v. Basile, 174 Conn. 36, 41, 381 A.2d 547 (1977) (prohibiting appointment from expired list and refusing to create judicially new list as it would “flout the policy” regarding limitations on eligibility lists); McAdams v. Barbieri, supra, 143 Conn. 409 (charter specifically provided “any appointment made in violation of its provisions was null and void”); State ex rel. Chernesky v. Civil Service Commission, 141 Conn. 465, 470, 106 A.2d 713 (1954) (act specifically provided that “ ‘commission shall cancel such portion of any list as has been in force for more than two years’ ”); New Haven Firebird Society v. Board of Fire Commissioners, 32 Conn. App. 585, 589, 630 A.2d 131, cert. denied, 228 Conn. 902, 634 A.2d 295 (1993) (promotions “subject to assignment” extended two year limitation indefinitely, thereby violating principle that one does not acquire “permanency of eligibility” by passing examination once).

       The civil service provisions of the charter provided that “[n]o question in any test shall relate to religious or political opinions or affiliations.” (Internal quotation marks omitted.) Resnick v. Civil Service Commission, supra, 156 Conn. 30.

       We note that the parties agreed that the complaint in the present case was filed prior to the date of the mayor’s letter. This fact, however, does not resolve the question of what, if anything, the mayor did, or was required to do, to effectuate the extension properly.


author: Per Curiam.

text:
    HELENA FITZGERALD v. JAMES T. FLAHERTY ET AL.
    (AC 16691)
    O’Connell, C. J., and Foti and Dupont, Js.
    Argued May 26
    officially released June 30, 1998
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. LEONARD JACKSON
    (AC 16598)
    O’Connell, C. J., and Foti and Schaller, Js.
    Argued May 26
    officially released June 30, 1998
   Per Curiam.

The judgment is affirmed.


text:
    MYRNA LABOW v. RONALD LABOW
    (AC 16981)
    O’Connell, C. J., and Foti and Dupont, Js.
    Argued May 27
    officially released June 30, 1998
   Per Curiam.

The judgment is affirmed.


text:
    MYRNA LABOW v. RONALD LABOW
    (AC 15815)
    O’Connell, C. J., and Foti and Dupont, Js.
    Argued May 27
    officially released June 30, 1998
   Per Curiam.

The judgment is affirmed.


text:
    THOMAS BUSH v. COMMISSIONER OF CORRECTION
    (AC 17358)
    O’Connell, C. J., and Foti and Dupont, Js.
    Argued May 27
    officially released June 30, 1998
   Per Curiam.

The judgment is affirmed.


text:
    HERIBERTO HERNANDEZ v. COMMISSIONER OF CORRECTION
    (AC 17013)
    Schaller, Hennessy and Dupont, Js.
    Argued April 28
    officially released June 30, 1998
   Per Curiam.

The judgment is affirmed.


text:
    ELLEN LEVINSON v. LAWRENCE LEVINSON
    (AC 17672)
    O’Connell, C. J., and Schaller and Sullivan, Js.
    Submitted on briefs May 28
    officially released June 30, 1998
   Per Curiam.

The judgment is affirmed.


text:
    SALVATORE CARACOGLIA v. BOARD OF EDUCATION OF THE TOWN OF MIDDLETOWN
    (AC 17100)
    Lavery, Spear and Kulawiz, Js.
    Argued May 28
    officially released June 30, 1998
   Per Curiam.

The judgment is affirmed.


text:
    AMICA MUTUAL INSURANCE COMPANY v. WILLIAM JACOMINI
    (AC 17347)
    Lavery, Sullivan and Spallone, Js.
    Argued May 29
    officially released June 30, 1998
   Per Curiam.

The judgment is affirmed.


text:
    HELENE R. O’CONNELL v. SAVINGS BANK LIFE INSURANCE COMPANY
    (AC 16868)
    O’Connell, C. J., and Schaller and Healey, Js.
    Argued April 29
    officially released June 30, 1998
   Per Curiam.

The judgment is affirmed.


text:
    CAMERON M. HAYWARD v. JAMES R. W. HAYWARD
    (AC 16496)
    Foti, Lavery and Daly, Js.
    Argued June 2
    officially released June 30, 1998
   Per Curiam.

The judgment is affirmed.


text:
    LINDA MAHON v. JEFFREY L. MOORMAN
    (AC 17393)
    Lavery, Schaller and Dupont, Js.
    Submitted on briefs June 5
    officially released June 30, 1998
   Per Curiam.

The judgment is affirmed.


text:
    FRANCIS J. WIATR v. NANCY S. WIATR
    (AC 17632)
    Foti, Hennessy and Sullivan, Js.
    Submitted on briefs June 5
    officially released June 30, 1998
   Per Curiam.

The judgment is affirmed.


text:
    PAUL REEDER v. ZOHNE INDUSTRIES ET AL.
    (AC 18023)
    Foti, Hennessy and Sullivan, Js.
    Submitted on briefs June 5
    officially released June 30, 1998
   Per Curiam.

The decision of the workers’ compensation review board is affirmed.


text:
    STATE OF CONNECTICUT v. KEITH MURRAY
    (AC 16916)
    Schaller, Hennessy and Shea, Js.
    Argued June 9
    officially released June 30, 1998
   Per Curiam.

We agree with the trial court that there was no evidence of availability of the missing witness whom the defendant claimed that the state should have produced. See State v. Jones, 46 Conn. App. 640, 656, 700 A.2d 710, cert. denied, 243 Conn. 941, 704 A.2d 797 (1997). The trial court’s determination of fact in so finding was not clearly erroneous. On the basis of the record, we cannot say that the trial court’s decision not to give an adverse inference instruction was clearly erroneous. State v. Battle, 39 Conn. App. 742, 746, 667 A.2d 1288 (1995), cert. denied, 237 Conn. 922, 676 A.2d 1375, cert. denied, 519 U.S. 955, 117 S. Ct. 373, 136 L. Ed. 2d 263 (1996).

The judgment is affirmed.