text:
    ALBERT SANDELLA ET AL. v. DICK CORPORATION ET AL.
    (AC 17504)
    Schaller, Spear and Healey, Js.

      Argued January 21
    officially released May 11, 1999

      Vincent J. Dowling, for the appellant (defendant Maguire Group, Inc.).

      Karen K Clark, with whom, on the brief, was Frank K. Usseglio, for the appellee (defendant Metcalf & Eddy).
   Opinion

SCHALLER, J.

This appeal arises from the judgment on a cross claim for indemnification. In the main action, a jury found the defendant Dick Corporation and the defendant cross claimant, Metcalf & Eddy, liable to the plaintiffs, Albert Sandella and his wife, Cheryl Sandella, for injuries sustained by the named plaintiff, an employee of the town of North Haven, in a slip and fall that occurred while he was working at a wastewater treatment plant in that town in July, 1990. The cross claim defendant, Maguire Group, Inc. (Maguire), appeals from the judgment rendered after the second phase of a bifurcated jury trial holding Maguire liable to Metcalf & Eddy on a claim for indemnification arising from a contract to indemnify and hold harmless. Maguire claims that the trial court improperly (1) failed to set aside the jury’s verdict and to render a directed verdict in its favor, (2) failed to find, as a matter of law, that Metcalf & Eddy was not entitled to indemnification and (3) failed to find, as a matter of law, that the indemnity agreement was void as a matter of public policy pursuant to General Statutes § 52-572k. We affirm the judgment of the trial court.

The following facts are necessary to the resolution of this appeal. On November 25,1986, the town of North Haven (town.) entered into a contract with Maguire for services related to the construction and renovation of its wastewater treatment plant. Maguire’s function was to design the facility and to administer the contract. Dick Corporation was hired by the town as the general contractor and, as such, was responsible for the construction and modification of the plant. During the construction process, the town was to maintain operation and control of the plant.

At the beginning of construction, Tom Weston was the town employee in charge of the plant’s operation. He held the requisite grade four license to operate the plant. In approximately March, 1990, after the construction on the plant had begun, Weston resigned. Maguire did not have any employees who had the state license required to operate the plant. As a courtesy to the town, Maguire contacted Metcalf & Eddy Services, Inc. (Services, Inc.). Services, Inc., was in the business of operating wastewater treatment facilities. Services, Inc., employed Ronald Collins, who held the grade four license required to operate the plant. Services, Inc., and Maguire entered into negotiations regarding Collins’ services. On March 29, 1990, Services, Inc., sent a proposal to Maguire indicating that Collins was available on a short-term basis, and that Services, Inc., would be willing to contract out his services to Maguire. Maguire never signed and returned the letter confirming Services, Inc.’s conditions as had been requested. Collins, however, had begun working at the plant on March 5 or 6, 1990. He continued to work at the plant until August 1 or 2, 1990. Even though Maguire never signed or responded to the March 29 letter, it did pay Services, Inc., in accordance with the terms of that letter.

On July 19, 1990, the named plaintiff slipped and fell while at work, suffering serious injuries. The plaintiffs filed their summons and complaint on July 24, 1992, naming Dick Corporation, Maguire and “Metcalf & Eddy” as defendants. The cross claimant, Metcalf & Eddy, sent a letter to Maguire notifying it that, pursuant to the indemnification agreement of March 29, 1990, Metcalf & Eddy would be expecting indemnification from any liability and reimbursement of reasonable attorney’s fees. Metcalf & Eddy subsequently filed a cross claim against Maguire on August 24, 1993. After a jury trial, Metcalf & Eddy was found liable to the plaintiffs for $213,844. In the second phase of the trial, the jury found that Maguire was liable to Metcalf & Eddy for $298,000.

Maguire made postverdict motions to set aside the verdict, for a directed verdict and for remittitur of a portion of the award. The trial court denied Maguire’s postverdict motions. This appeal followed.

I

Maguire first claims that the trial court improperly denied its motion to set aside the verdict and motion for a directed verdict because the jury could not reasonably have found that an indemnification contract existed between Maguire and Services, Inc. We disagree.

The standard for reviewing the denial of a motion to set aside the verdict and motion for directed verdict on evidentiary grounds is clear. “Our review of the trial court’s refusal to [grant the motions] requires us to consider the evidence in the light most favorable to the prevailing party, according particular weight to the congruence of the judgment of the trial judge and the jury, who saw the witnesses and heard their testimony. . . . The verdict will be set aside and judgment directed only if we find that the jury could not reasonably and legally have reached their conclusion. . . . Mather v. Griffin Hospital, 207 Conn. 125, 130, 540 A.2d 666 (1988).” (Internal quotation marks omitted.) Suarez v. Dickmont Plastics Corp., 242 Conn. 255, 277, 698 A.2d 838 (1997). “While it is the jury’s right to draw logical deductions and make reasonable inferences from the facts proven ... it may not resort to mere conjecture and speculation. ... If the evidence would not reasonably support a finding of the particular issue, the trial court has a duty not to submit it to the jury.” (Internal quotation marks omitted.) Sheridan v. Desmond, 45 Conn. App. 686, 691, 697 A.2d 1162 (1997).

Maguire claims that it never entered into a contract for indemnification with Services, Inc., or any other Metcalf & Eddy entity. After a thorough review of the evidence, we conclude that the jury reasonably could have found that Maguire did enter into an indemnification contract.

While Metcalf & Eddy does not argue that Maguire and it entered into an express contract, Metcalf & Eddy does claim that an implied contract existed between them. “A true implied contract can only exist where there is no express one. It is one which is inferred from the conduct of the parties though not expressed in words.” Collins v. Lewis, 111 Conn. 299, 304, 149 A. 668 (1930). “It is not fatal to a finding of an implied contract that there were no express manifestations of mutual assent if the parties, by their conduct, recognized the existence of contractual obligations. . . . Whether and on what terms a contractual commitment has been undertaken are ultimately questions of fact which, like any other findings of fact, may be overturned only if the trial court’s determinations are clearly erroneous.” (Citation omitted; internal quotation marks omitted.) Homecare, Inc., v. Acquarulo, 38 Conn. App. 772, 775, 663 A.2d 412 (1995).

The jury had before it testimony that Collins was sent to the plant prior to the March 29 letter and that, even without an express agreement in place, Maguire paid for Collins’ services in accordance with the terms set out in the March 29 letter. See footnote 4. Furthermore, the jury heard testimony that Alan Asikainen, Maguire’s vice president, never sent any correspondence accepting or rejecting the conditions of the March 29 letter. “[S]ilence may constitute acceptance of an offer if the offeree, by his words or conduct, leads the offeror reasonably to interpret that silence as such. 1 Williston, Contracts (3d Ed. Jeager) § 91C; Blakeslee v. Water Commissioners, [121 Conn. 163, 183 A. 887 (1936)]. Whether such conduct took place so as to create a contract is a question of fact.” John J. Brennan Construction Corp., Inc. v. Shelton, 187 Conn. 695, 710, 448 A.2d 180 (1982). The March 29 letter was admitted as a full exhibit, and the jury had the letter when it deliberated the second phase of the trial. The jury reasonably could have determined that, given the circumstances surrounding the March 29 letter, Maguire’s failure to decline the conditions was an implied acceptance of its conditions. Additionally, the jury had as exhibits letters from Maguire to Services, Inc., and from Met-calf & Eddy to Maguire referencing Collins’ services and the March 29 letter.

A letter from Maguire to Services, Inc., dated July 30, 1990, indicated that Maguire thanked Services, Inc., for providing Collins’ services on short notice. The tenor of the July 30 letter, however, was to inform Services, Inc., that Collins’ services would not be needed beyond August 3, 1990.

The letter from Metcalf & Eddy dated August 21, 1992, and signed “J. Alan MacKay, Counsel” states: “On March 29, 1990, our companies entered into an agreement pursuant to which we provided an interim plant manager for the North Haven wastewater treatment facility between March 5,1990 and August 3,1990. We have recently been served with a complaint filed by Albert Sandella against Dick Corporation, Maguire Group, Inc., and ourselves. Under the provisions of the March 29, 1990 agreement, Maguire indemnified Metcalf & Eddy from any liability including reasonable attorney’s fees, arising out of our performance of services under the agreement. Since we will be looking to you to reimburse us for any attorney’s fees that may be incurred, I suggest you have your legal counsel contact me to discuss the conduct of the defense.” There was no testimony before the jury that indicated that anyone from Maguire responded either affirmatively or negatively to the August 21 letter.

Perhaps the most telling exhibit before the jury was the copy of Metcalf & Eddy’s cross claim dated August 12,1993, and Maguire’s answer dated October 19, 1993. In the cross complaint, Metcalf & Eddy alleged: “Pursuant to the March 29,1990 Agreement between Metcalf & Eddy and Maguire, Maguire agreed to hold Metcalf & Eddy harmless and to indemnify it from any loss, liability, claims or damages which arises from ... (2) actions or performance of services by Metcalf & Eddy under the agreement.” Maguire answered by admitting the allegations.

Maguire claims on appeal that the answer was a mistake, and that the cross claim and answer, which were later superseded by amended pleadings and answers, should not be part of the file. Maguire presented no testimony explaining the change in its position with regard to the admissions. During his closing argument, Maguire’s counsel alluded to its position that the original answer was a mistake. Attorneys’ statements are not testimony and are not evidence. See State v. Sauris, 227 Conn. 389, 404, 631 A.2d 238 (1993). The jury is free to draw its own conclusions from the evidence presented and need not believe the arguments for one side or the other. The October 19, 1993 answer is an evidentiary admission. “[Statements in complaints against parties subsequently withdrawn from a cause of action are admissible as evidence .... This statement is but a corollary of the rule [our Supreme Court has] consistently followed under which statements in withdrawn or superseded pleadings, including complaints, may be considered as evidential admissions by the party making them, just as would any extrajudicial statements of the same import.” (Citation omitted; internal quotation marks omitted.) Dreier v. Upjohn Co., 196 Conn. 242, 244, 492 A.2d 164 (1985).

We conclude that the jury had sufficient evidence from which it reasonably could infer that Maguire entered into an implied contract in which it agreed to indemnify Services, Inc. The trial court correctly denied Maguire’s motions to set aside the verdict and for directed verdict.

II

Maguire next claims that, even if it did enter into an indemnification contract, that contract was with Services, Inc., and not with the cross claimant, Metcalf & Eddy. Maguire claims that, because Metcalf & Eddy was not a party to the indemnification contract, it is not entitled to indemnification under the contract, and, accordingly, the trial court should have found, as a matter of law, that Metcalf & Eddy was not entitled to indemnification. We disagree.

“[T]o form a contract . . . the identities of the contracting parties must be reasonably certain.” (Citations omitted.) Ubysz v. DiPietro, 185 Conn. 47, 51, 440 A.2d 830 (1981). Determining the identities of the parties to this contract is a question of fact to be determined by the trier. We will not disturb such a finding unless it is unsupported by the facts and clearly erroneous.

The jury had before it the letters of the parties and the cross claim and answer. Additionally, the jury had before it, as a full exhibit, the summons that lists “Met-calf & Eddy, 30 Harvard Hill Square, Wakefield, MA 01880” as a defendant.

The March 29 letter from Services, Inc., bears the company logo. The August 21 letter from Metcalf & Eddy also has a company logo. The two logos are very similar. The jury had these letters before it when it deliberated the second phase of this trial. Additionally, the March 29 letter was signed by Eric Teittinen and the August 21 letter indicated that a copy was sent to Eric Teittinen. The jury reasonably could have observed the similarities between the two letterheads and found that the two companies were essentially the same, or closely related.

We note again that the August 21 letter to Maguire from Metcalf & Eddy went unanswered. The jury reasonably could have found that, under the circumstances, Maguire’s failure to respond to the letter could have been taken as an implicit agreement to indemnify Metcalf & Eddy. Moreover, as the trial court pointed out in its memorandum of decision denying Maguire’s motions to set aside and for a directed verdict: “The Maguire Group offered no official corporate documents to establish that the entities were in fact totally separate corporations.”

Metcalf & Eddy presented only one witness to establish its identity as the party to the indemnification contract, Hugh Manke, the managing partner of the New Haven office of Updike, Kelly & Spellacy, P.C., the law firm that represented Metcalf & Eddy in this litigation. On direct examination, Manke testified that he was not sure of the address to which the legal bills were sent. When asked the name of his client, Manke responded: “It’s Metcalf & Eddy.” On cross-examination, the following exchange took place between Manke and Maguire’s counsel:

“[Maguire’s Counsel]: Do you know who the Met-calf & Eddy chent of Updike, KeUy & Spellacy is? Do you know what the corporate name is?
“[The Witness:] No, I don’t.”

Metcalf & Eddy, however, introduced billing records that indicated that the client of Updike, Kelly & SpeUacy, P.C., in this matter was “Metcalf & Eddy Services.”

Maguire’s sole witness, its vice president Asikainen, testified that Collins’ services were billed by “Metcalf & Eddy Services, Inc., of Danvers, Massachusetts,” and that Maguire never had any dealings with Metcalf & Eddy of Wakefield, Massachusetts. While Metcalf & Eddy’s counsel attempted to elicit testimony that Maguire had done business with Metcalf & Eddy, he was unable to elicit that fact.

The jury had also heard Collins’ testimony in the first phase of the trial that he was an employee of Services, Inc. Metcalf & Eddy did not present evidence to contradict that testimony. Collins, however, was not totally consistent in his testimony as he referred to both “Met-calf & Eddy” and “Metcalf & Eddy Services, Inc.” On its cross-examination of Richard Gillen, North Haven’s director of public works in 1990, Metcalf & Eddy elicited testimony that Gillen believed Collins worked for “Met-calf & Eddy.”

Given the evidence that the jury heard through testimony and the documentary evidence that it had before it during deliberations, especially the evidentiary admission of Maguire in the initial answer, there clearly is evidence supporting the jury’s determination that Maguire is liable to indemnify the cross claimant, Met-calf & Eddy. It is entirely reasonable, given the conflicting evidence, that the jury could have found that Metcalf & Eddy was merely a shortened version of Metcalf & Eddy, Services, Inc., Without a showing of a clearly erroneous finding of fact, we will not reverse the jury’s findings. We conclude that the trial court properly denied the motion to set aside and motion for a directed verdict.

Ill

Maguire next claims that the trial court improperly failed to determine, as a matter of law, that the indemnity agreement was void as to public policy pursuant to § 52-572k. We are not persuaded.

In its memorandum of decision denying Maguire’s postverdict motions, the trial court held: “The applicability of [§ 52-572k] depended on whether the jury considered the services covered by the management contract to be ‘entered into in connection with or collateral to a contract or agreement relative to the construction, alteration, repair or maintenance of any building, structure or appurtenances thereto.’ . . . The jury could, within the evidence, have concluded that the contract was not of the sort described in § 52-572k.”

In general, whether conduct falls within a statute’s province is a matter of statutory construction, and presents a question of law warranting plenary review. Lopiano v. Lopiano, 247 Conn. 356, 363, 752 A.2d 1000 (1998). “A primary rule of statutory construction is that when the words of a statute are plain and unambiguous they should be given full effect. American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 193, 530 A.2d 171 (1987).” State v. Jones, 51 Conn. App. 126, 137, 721 A.2d 903 (1998), cert. denied, 247 Conn. 958, 723 A.2d 814 (1999).

Although Maguire does not challenge the trial court’s instructions to the jury, we review them to determine if the trial court acted improperly in not concluding, as a matter of law, that the indemnification contract fell within the scope of those prohibited by § 52-572k. The trial court instructed the jury as follows: “It is for you to determine whether the indemnification agreement was of the kind described in this statute, that is, whether the agreement was ‘entered into in connection with or collateral to a contract or agreement relative to the construction . . . .’

“A party that has contracted to perform construction may enter into other contracts at the same time and those other contracts may or may not be in connection with or collateral to the construction contract. So the statute does not mean that all contracts entered into by a contractor may not be enforced if they have indemnification clauses. It extends only to such contracts if they are entered into in connection with or collateral to a contract or agreement relative to the construction, alteration, repair or maintenance of any building or structure. So it is the subject matter of the contract that decides whether or not an indemnification agreement can be enforced. . . .

“If you find that the agreement claimed by Metcalf & Eddy was not of the kind that is invalidated by this statute, then the agreement would be enforceable providing that the other requirements I’ve told you about are met.”

The trial court properly instructed the jury on how it was to apply § 52-572k to the facts. It is the trial judge’s duty to inform the jury as to the law that applies to the case and what to do if the facts fit within a statute’s applicability. It is the jury’s province to decide whether the facts presented fit within the law as the trial judge has instructed them. The jury was instructed that it was to determine whether the contract was related to the construction of the wastewater treatment plant. If it was, then the jury was not to find for Metcalf & Eddy. If, however, the contract was not related to the construction of the plant, the jury was free to determine whether Metcalf & Eddy had met its burden of proof. The trial court acted properly.

We next decide the issue of whether, given the evidence, the jury reasonably could have found that the agreement between Metcalf & Eddy and Maguire was not related to construction. In a motion to set aside the verdict, we review the facts in the light most favorable to the prevailing party, and those facts will not be disturbed unless the jury could not have reasonably and legally reached its verdict. Mather v. Griffin Hospital, supra, 207 Conn. 130.

We look first at the March 29 letter, which provides:

“1. M&E will provide an interim plant manager with duties identified below for approximately three months ....
* * *
“3. Interim plant manager will provide general supervision to the existing staff including the oversight of operation and maintenance practices, sampling techniques and laboratory procedures, records, and reporting and work schedule compliance.
“4. The managerial responsibilities of the interim plant manager do not extend to treatment process control of . . . permit violations which may occur during the period in which services are being provided under this agreement.
“5. Interim plant manager will not be responsible for taking disciplinary action of any nature against any employees of the town of North Haven. In the event such action appears necessary to effectively operate the facility, all proposed disciplinary matters will be referred to the appropriate representative of the town of North Haven.
“6. Interim plant manager will be available as needed to provide the necessary communications to Maguire.” Nothing in the text of the letter indicates that Metcalf & Eddy provided Collins’ services as part of a construction contract or corollary to construction contract.”

We next review the testimony before the jury. Collins testified that he was primarily a contact between the town and Dick Corporation. His testimony reflects that Dick Corporation was responsible for the construction and renovation of the plant. Gillen testified that Collins had even less authority than Weston, whom he temporarily replaced in March, 1990.

Maguire’s only witness, Asikainen, when asked why the town asked Maguire to obtain an interim manger, responded: “I don’t recall all the details, you know, in terms of why they asked us to do it. But there was some reason that they couldn’t do it or had some problems with getting someone on board very quickly. However, if it was done through Maguire Group, that we could get someone on board a lot faster which was needed to coordinate the construction at the treatment plant which was ongoing while [Weston] left midstream.” Asikainen further testified that “Ron Collins had to be actively involved in the construction process in that we had a construction process whereby we had to keep existing facilities at the treatment plant on line. . . . There were also biweekly meetings . . . where [Collins] attended so that Dick Corporation who was the contractor would sit with our representatives and Ron Collins and go over issues that were coming up and what needed to be done by the town to facilitate the construction. ... So there was a coordination all the way through the construction while Ron Collins was working as an acting superintendent.”

The evidence presented to the jury was conflicting as to whether the March 29 letter was connected to a construction contract. The jury’s function is to weigh the evidence and to determine how much credibility to give to each witness. Thames River Recycling, Inc. v. Gallo, 50 Conn. App. 767, 799, 720 A.2d 242 (1998). On the basis of the evidence presented, we conclude that the jury reasonably could have found that Metcalf & Eddy was not involved in a construction contract.

Maguire’s brief also asserts, albeit without analysis, that the contract between Metcalf & Eddy and Maguire was also a “maintenance” contract and, therefore, covered by § 52-572k. This claim lacks merit.

The trial court, in its memorandum of decision stated: “[T]he jury was warranted in finding that the contract was one for managerial services, not a contract described in § 52-572k. ” The jury had before it testimony that Collins’ role was to ensure that the wastewater plant continued to operate during the construction and renovation. The fact that Maguire and Dick Corporation personnel would inform Collins what valves needed to be closed at certain times during the construction does not, in and of itself, mean that the March 29 agreement was for “maintenance.” Furthermore, the fact that Collins attended meetings regarding the construction of the plant also does not show that he was participating in any capacity other than managerial. The jury reasonably could have found Collins’ function to be managerial and not maintenance related. Accordingly, we conclude that the trial court properly determined, as a matter of law, that Metcalf & Eddy’s claim was not barred by § 52-572k.

The judgment is affirmed.

In this opinion the other judges concurred.

       In the main action, the summons named “Metcalf & Eddy” as a defendant. One of the main claims by the cross claim defendant, Maguire Group, Inc., is that it never contracted with Metcalf & Eddy but, rather, contracted with Metcalf & Eddy Services, Inc., a distinct and separate entity from Metcalf & Eddy. The cross claim defendant claims that Metcalf & Eddy refers to Metcalf & Eddy, Inc., of Wakefield, Massachusetts. The record, unfortunately, lacks any explicit evidence to support or refute the cross claim defendant’s contention. We will refer to the defendant cross claimant as Metcalf & Eddy and we will refer to Metcalf & Eddy Services, Inc., as Services, Inc. A more thorough discussion of the different Metcalf & Eddy entities is presented in part II of this opinion.

       Neither the plaintiffs nor the named defendant, Dick Corporation, are parties to this appeal.

       See footnote 1.

       The letter was sent on Services, Inc., letterhead, with a return address in Danvers, Massachusetts. The relevant portions follow: “Metcalf & Eddy Services, Inc. (‘M&E’) is pleased to submit this proposal to the Maguire Group (‘Maguire’) to provide the services of an interim plant manager at the North Haven Wastewater Treatment Facility (the ‘Facility’). We have an individual with the appropriate equivalent Connecticut wastewater license available for the next three months. The interim plant manager will remain an employee of M&E for all purposes.
      =1= * *
      Compensation
      Maguire shall compensate M&E for services performed under this agreement $2400.00 per week. Said compensation includes labor, overhead, direct costs and profit necessary to provide the services noted. Compensation for work performed beyond the scope of the services identified shall be negotiated between Maguire and M&E.
      Payment
      M&E will prepare invoices on a monthly basis and submit them on or about the first of the month. Payment is due within five (5) days of receipt of payment by Maguire from the Town of North Haven for said services, not to exceed sixty (60) days from the receipt of the invoice from M&E. Maguire will pay to M&E a one and one half percent (1.5%) per month interest charge for all invoices not paid within thirty (30) days following the time which payment is due.
      Indemnification
      Maguire shall indemnify M&E, its stockholders, directors, officers and employees harmless from any loss, liability, claims or damages including reasonable attorney’s fees, which arises from any:
      1. Failure by Maguire or any third party to comply with the law or applicable rules and regulations.
      2. Actions or performance of services by M&E under this agreement.
      M&E shall indemnify and hold harmless Maguire, its stockholders, directors, officers and employees, from any loss, liability, claims or damages including reasonable attorney fees, which arise from gross negligence, willful misconduct or intentional omission of duties by M&E in the performance of its obligations under this agreement.
      :|s !t! *
      If you have any questions feel free to call. If you concur with the conditions set forth, please sign below and return to my attention.”
      The proposal was signed by Eric Teittinen, vice president and division manager of Services, Inc.

       For the purpose of this discussion, we defer our discussion of the roles of the various Metcalf & Eddy entities. That matter is discussed in part II of this opinion.

       The following exchange took place between Metcalf & Eddy’s counsel and Gillen.
      “Q. Now you indicated to us that you did have some familiarity with who Mr. Collins was ....
      “A. Yes.
      “Q. And your recollection is that he was retained by the Maguire Group, is that right?
      “A. Yes.
      “Q. Okay. So he worked for the Maguire Group during the summer of 1990, is that right?
      “A. Yes.
      “Q. He wasn’t a Maguire employee though, was he?
      “A. Not to my knowledge, no.

        “Q. Do you remember him working for Metcalf & Eddy, do you remember that group?
      “A. That’s what I was told, yes.”

         General Statutes § 52-572k provides in relevant part: “(a) Any covenant, promise, agreement or understanding entered into in connection with or collateral to a contract or agreement relative to the construction, alteration, repair or maintenance of any building, structure or appurtenances thereto including moving, demolition and excavating connected therewith, that purports to indemnify or hold harmless the promisee against liability for damage arising out of bodily injury to persons or damage to property caused by or resulting from the sole negligence of such promisee, his agents or employees, is against public policy and void . . . .”

       In its brief, Metcalf & Eddy argues, without any analysis, that the general verdict rule applies to this case. Metcalf & Eddy’s position appears to be that the general verdict rule bars us from addressing the issue of whether the agreement is void under § 52~572k. “[T]he so-called general verdict rule provides that, if a jury renders a general verdict for one party, and no party requests interrogatories, an appellate court will presume that the jury found every issue in favor of the prevailing party. . . . The rule applies whenever a verdict for one party could reasonably be rendered on one or more distinct causes of action ... or distinct defenses.” (Citations omitted; internal quotation marks omitted.) Curry v. Burns, 225 Conn. 782, 786, 626 A.2d 719 (1993).

        We do not believe that the general verdict rule applies in this case. “The general verdict rule operates to prevent an appellate court from disturbing a verdict that may have been reached under a cloud of error, but is nonetheless valid because the jury may have taken an untainted route in reaching its verdict.” Sady v. Liberty Mutual Ins. Co., 29 Conn. App. 552, 558, 616 A.2d 819 (1992). Metcalf & Eddy’s theory of recovery is contractual indemnification. Maguire denies the existence of a contract and defended on the basis of the indemnification clause’s unenforceability under § 52-572k. In rendering its verdict for Metcalf & Eddy, the jury necessarily found that a contract existed and that the contract was enforceable. The general verdict rule bars review of a claim of error when there is an untainted route that the jury might have taken. Here, where Metcalf & Eddy pleaded only one theory of recovery, and the jury returned a verdict for Metcalf & Eddy, it is hard to conceive of any alternate route that the jury could have taken to reach its verdict. For that reason, we conclude Metcalf & Eddy incorrectly invokes the general verdict rule.

       The following exchange took place between Metcalf & Eddy’s counsel and Collins:
      “Q. And did you have any role in designing this work that was constructed while you were there?
      “A. No.
      “Q. And did you have any role in administering the contract with Dick Corporation?
      “A. No.
      * ** *
      “Q. Were there occasions when you had to interact with the construction that was going on?
      “A. Yes.
      “Q. All right. Tell us when that would occur or why would it occur?
      “A. Well, if they needed certain equipment out of service we’d have to figure—the operating staff would have to figure out how to do it and what effect that would be on our permit and what special precautions we had to take to maybe do a better job of operating the plant during that period to meet the requirements.
      “Q. It is fair to say then you were involved in the coordinating between the town on the one hand—
      “A. Yes.
      “Q.—the contractor—the contracting that was going on?
      “A. Right.
      “Q. Did you have any other role with the construction other than being a point of contact for the town?
      “A. No.”


source: Caselaw Access Project

author: FOTI, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. ABKNELL MAHON
    (AC 18055)
    Foti, Spear and Hennessy, Js.
    Argued February 16
    officially released May 11, 1999

      John T. Walkley, special public defender, for the appellant (defendant).

      Peter A. McShane, assistant state’s attorney, with whom, on the brief, was Kevin T. Kane, state’s attorney, for the appellee (state).
   Opinion

FOTI, J.

The defendant, Abknell Mahon, appeals from the judgment of conviction, rendered after a jury trial, of sale of a narcotic substance by a person who is not drug-dependent in violation of General Statutes § 2 la-278 (b), conspiracy to sell a narcotic substance by a person who is not drug-dependent in violation of General Statutes §§ 53a-48 and 21a-278 (b), and possession of a controlled substance with intent to sell within 1500 feet of a school in violation of General Statutes § 21a-278a (b). On appeal, the defendant claims that the trial court failed to instruct the jury on an essential element of the charge of sale of a narcotic substance by a person who is not drug-dependent in violation of § 21a-278 (b). We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On March 10, 1998, Detective Carl Caler of the Willimantic police department was assigned to work undercover for the statewide narcotics task force. The target area on that date was the Greenville section of Norwich. Caler proceeded by motor vehicle to Norwich where he met with Bryant Downs and attempted to purchase crack cocaine from him. Downs, however, did not have the narcotics on his person and entered Caler’s vehicle and directed him to the basketball courts on Prospect Street, which are approximately 1390 feet from the Greenville Elementary School.

Downs then exited the car, approached the basketball courts and said to the defendant, who was standing there, “Yo, Abe, give me two.” The defendant then handed Downs two small packages, which Downs then sold to Caler after a third party vouched for him, confirming that Caler was not a police officer. The two packages purchased contained cocaine.

The defendant’s sole claim on appeal is that the trial court improperly charged the jury on the sale of narcotics count by failing to charge that the state was required to prove beyond a reasonable doubt that the defendant knew that the substance that he handed to Downs, which Downs then sold to Caler, was cocaine. Because the defendant neither requested such a charge nor took exception to the charge as given, he has requested review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or, in the alternative, under the plain error doctrine pursuant to Practice Book § 60-5.

“It is . . . constitutionally axiomatic that the jury be instructed on the essential elements of a crime charged.” (Internal quotation marks omitted.) State v. Denby, 235 Conn. 477, 483, 668 A.2d 682 (1995). A claim that the trial court failed to instruct the jury adequately on an essential element of the crime charged necessarily involves the defendant’s due process rights and implicates the fairness of his trial. State v. Anderson, 212 Conn. 31, 36, 561 A.2d 897 (1989). We will, therefore, review this claim.

The trial court instructed the jury as to the first count of sale of a narcotic substance by explaining that there “are two elements of this crime, each of which must be proven by the state by proof beyond a reasonable doubt. The first element is, one, the defendant sold a substance; two, the substance was cocaine.” The trial court then instructed the jury as to the third count charged, possession of a controlled substance with intent to sell within fifteen hundred feet of a school, as follows: “There are five elements. Each of the five elements must be proved by proof beyond a reasonable doubt in order for you to find the defendant guilty. The five elements are [one] the defendant had possession of a substance; two, the substance was cocaine; three, the defendant knew it was cocaine; four, he possessed it with the intent to sell it; and five, the possession with intent to sell occurred within 1500 feet of a school.”

The defendant concedes that knowledge is not an expressed statutory element of the crime of sale of narcotics but submits that, impliedly, knowledge must be included as an essential element in the trial court’s charge to the jury.

The defendant relies on a number of cases in support of his claim, including State v. Delossantos, 211 Conn. 258, 277, 559 A.2d 164, cert. denied, 493 U.S. 866, 110 S. Ct. 188, 107 L. Ed. 2d 142 (1989), State v. Goodrum, 39 Conn. App. 526, 532, 665 A.2d 159, cert. denied, 235 Conn. 929, 667 A.2d 554 (1995), and State v. Johnson, 26 Conn. App. 779, 784, 603 A.2d 440, cert. denied, 221 Conn. 925, 608 A.2d 690 (1992). Those cases, however, deal with the crime of possession of a narcotic substance with the intent to sell, which includes the element of knowledge. See State v. Delossantos, supra, 277 (to prove illegal possession of narcotic substance, it is necessary to establish that defendant knew character of substance).

A person may possess narcotics without intending to sell them, or possess narcotics legally and sell them illegally, or sell narcotics without possessing them, making the crimes different offenses. State v. Devino, 195 Conn. 70, 75, 485 A.2d 1302 (1985). “The offense of possession of a narcotic substance with intent to sell requires proof that the defendant possessed a narcotic substance. There is no such requirement for the offense of the sale of a narcotic substance.” State v. Smart, 37 Conn. App. 360, 368, 656 A.2d 677, cert. denied, 233 Conn. 914, 659 A.2d 187 (1995).

To prove possession of a narcotic substance, the state must prove beyond a reasonable doubt that the defendant knew of the character of the substance and its presence and exercised dominion and control over it. State v. Delossantos, supra, 211 Conn. 277. To prove sale of a narcotic substance, the state need not prove beyond a reasonable doubt that the defendant knew the character of the substance. As stated previously, the state need not prove that the defendant possessed the substance in question. State v. Smart, supra, 37 Conn. App. 368. The state need prove only that the defendant knowingly sold the substance to another person and that the substance sold was a narcotic.

Because knowledge of the substance is not an essential element of the crime of sale of cocaine, the trial court’s instruction was proper. The jury was given a clear explanation of the elements of that crime and proper guidance to determine if those elements were present. The jury was not misled by the charge, which was correct in law and sufficient to guide the jury in the issues presented.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 21a-278 (b) provides in relevant part: “Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any narcotic substance, hallucinogenic substance other than marijuana, amphetamine-type substance, or one kilogram or more of a cannabis-type substance except as authorized in this chapter, and who is not at the time of such action a drug-dependent person, for a first offense shall be imprisoned not less than five years nor more than twenty years; and for each subsequent offense shall be imprisoned not less than ten years nor more than twenty-five years.

       General Statutes § 21a-278a (b) provides in relevant part: “Any person who violates section 21a-277 or 21a-278 by manufacturing, distributing, selling, prescribing, dispensing, compounding, transporting with the intent to sell or dispense, possessing with the intent to sell or dispense, offering, giving or administering to another person any controlled substance in or on, or within one thousand five hundred feet of, the real property comprising a public or private elementary or secondary school, a public housing project or a licensed child day care center, as defined in section 19a-77, that is identified as a child day care center by a sign posted in a conspicuous place shall be imprisoned for a term of three years, which shall not be suspended and shall be in addition and consecutive to any term of imprisonment imposed for violation of section 21a-277 or 21a-278. ...”

       The state also argues that even if the instruction was improper it was harmless because the trial court instructed the jury on the knowledge requirement as to the third count. The state asserts that by virtue of the guilty verdict on that offense, it is clear that the state proved beyond a reasonable doubt that the defendant had knowledge that the substance sold was cocaine, and that the instructions, read as a whole, presented the case to the jury so that no injustice resulted.

       The defendant did not claim lack of knowledge as a defense in the trial court and, therefore, we need not decide what, if any, instructions would be required in such circumstances.


author: PER CURIAM.

text:
    STATE OF CONNECTICUT v. WILLIAM ASKEW
    (AC 17239)
    O’Connell, C. J., and Foti and Sullivan, Js.
    Argued March 3
    officially released May 11, 1999

      Sarah F. Summons, special public defender, for the appellant (defendant).

      Harry Weller, senior assistant state’s attorney, with whom, on the brief, were John Connelly, state’s attorney, and Terrence Mariani, deputy assistant state’s attorney, for the appellant (state).
   Opinion

PER CURIAM.

The defendant appeals from the trial court’s judgment revoking his probation and committing him to the custody of the commissioner of correction to serve the suspended portion of his sentence. On appeal, the defendant claims that his state and federal constitutional rights to confrontation and cross-examination of witnesses were violated when a defense witness exercised his fifth amendment rights. In addition, the defendant claims that the trial court improperly considered his probation record. We affirm the judgment of the trial court.

The following facts are relevant to this appeal. On March 20, 1991, the defendant was sentenced to the custody of the commissioner of correction for a term of ten years, suspended after five years with five years probation. On January 29, 1997, the defendant was charged with violation of probation as a result of another robbery conviction. At a probation violation hearing, the state produced the testimony of state’s attorney John Connelly, probation officer Barry Schacht and David Rodriguez, one of the two robbery victims, and then rested. The defendant called Jose Rodriguez, the other victim of the crime, who refused to answer certain questions, asserting his privilege under the fifth amendment to the United States constitution. At the conclusion of the hearing, the trial court found that the defendant had violated his probation and, as a consequence, revoked the suspension of his sentence.

It is the burden of the state to prove by a preponderance of the evidence that the defendant has violated the conditions of his probation. State v. Rollins, 51 Conn. App. 478, 484, 723 A.2d 817 (1999). The defendant does not dispute that the state sustained that burden with its three witnesses. The defendant argues, however, that his procedural due process rights were abrogated because he was unable to cross-examine a witness. The defendant makes a unique argument here because it was the defendant’s own witness who claimed his fifth amendment privilege and refused to answer certain questions.

“ ‘The right of an accused in a criminal trial to due process is, in essence, the right to a fair opportunity to defend against the State’s accusations. The rights to confront and cross-examine witnesses and to call witnesses in one’s own behalf have long been recognized as essential to due process.’ ” State v. Mastropetre, 175 512, 520, 400 A.2d 276 (1978), quoting Chambers v. Mississippi, 410 U.S. 284, 294, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973). “The sixth amendment to the [United States] constitution guarantees the right of an accused in a criminal prosecution ‘to confront the witnesses against him . . . Pointer v. Texas, 380 U.S. 400, 403, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965).” (Emphasis added.) State v. Lubesky, 195 Conn. 475, 481, 488 A.2d 1239 (1985). We are not furnished with any authority, nor are we aware of any, to reverse a case when a defendant is unable to obtain, from his own witnesses, the testimony that he wanted. The defendant’s first claim has no merit.

The defendant also claims that the introduction of his probation records, through Schacht, constituted a violation of the hearsay evidence rule. There are many rules of evidence on which we could rely in determining that this claim has no merit; one of them is that when hearsay evidence has been admitted without objection, the trier of fact can rely on that hearsay in proof of the matter stated therein for whatever it is worth on its face. Sears v. Curtis, 147 Conn. 311, 317, 160 A.2d 742 (1960). The defendant did not object to the admission of that evidence at the probation revocation hearing. Therefore, the evidence was properly before the court.

The judgment is affirmed.


text:
    JAMES LEONARD v. COMMISSIONER OF CORRECTION
    (AC 17618)
    Lavery, Spear and Sullivan, Js.
    Argued March 29
    officially released May 11, 1999

      David B. Rozwaski, for the appellant (petitioner).

      Judith Rossi, senior assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and John Dropick, former senior assistant state’s attorney, for the appellee (respondent).
   Opinion

PER CURIAM.

After a review of the record and briefs, and after hearing oral argument, we conclude that the petitioner has failed to make a substantial showing that he has been denied a state or federal constitutional right and has failed to sustain his burden of persuasion that the denial of certification to appeal was a clear abuse of discretion or that an injustice was done. See Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994); Simms v. Warden, 229 Conn. 178, 189, 640 A.2d 601 (1994); Walker v. Commissioner of Correction, 38 Conn. App. 99, 100, 659 A.2d 195, cert. denied, 234 Conn. 920, 661 A.2d 100 (1995); see also Lozada v. Deeds, 498 U.S. 430, 431-32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991).

The habeas court’s dismissal of the petitioner’s petition was predicated on a factual review of the petitioner’s claim and a determination that the petitioner failed to rebut the strong presumption that “counsel’s conduct [fell] within the wide range of reasonable professional assistance . . . .” Safford v. Warden, 223 Conn. 180, 193, 612 A.2d 1161 (1992).

The habeas court found that the petitioner failed to produce evidence to support his claim that trial counsel failed to investigate the case properly prior to trial. The habeas court found that there was “no evidence to support [the petitioner’s] claim that [trial counsel] was inadequately prepared or that the conduct was inadequate.” The record clearly supports the trial court’s conclusions as to the facts.

We conclude that the habeas court had before it sufficient evidence to find as it did and that it did not abuse its discretion in denying the petitioner’s petition for certification to appeal.

The appeal is dismissed.

       The trial court did not address the petitioner’s claim that counsel was burdened by a conflict of interest, and the petitioner did not request an articulation. Because the record is inadequate, we decline to review this claim. See Practice Book § 60-5.


text:
    MATTHEW ANGUISH v. TLM, INC., ET AL.
    (AC 18076)
    Spear, Sullivan and Dupont, Js.
    Argued February 23
    officially released May 11, 1999

      Stewart M. Casper, with whom, on the brief, were Victoria de Toledo and Gwendolyn Field Noto, for the appellant (plaintiff).

      Jason M. Dodge, with whom were Theodore M. Pap-pas and, on the brief, David M. Tilles, for the appel-lees (defendants).
   Opinion

PER CURIAM.

The plaintiff employee appeals from the dismissal of his appeal to the workers’ compensation review board (board). The plaintiff claims that the board improperly approved the defendant employer’s notice to discontinue his temporary total disability benefits. He argues that there should have been a formal hearing for the commissioner to approve the discontinuance and that the failure to have such a hearing is a violation of his due process rights guaranteed by the fourteenth amendment to the United States constitution. We affirm the dismissal.

The facts are not in dispute. The plaintiff suffered a compensable back injury in 1986 and received temporary total disability benefits through 1994. The plaintiffs employer filed a form 36 notice dated August 31, 1994, seeking to discontinue the benefits because the plaintiff, according to the plaintiffs treating physician, had reached maximum medical improvement. At the request of the plaintiff, an informal hearing was held and the workers’ compensation commissioner withheld ruling until the result of an independent medical examination was available. After it was available, the commissioner approved the discontinuation of benefits retroactive to August 31, 1994. That decision was appealed, and the board remanded the case to the commissioner for a formal hearing.

On remand, the commissioner found that the plaintiffs temporary total disability benefits were reinstated on August 2, 1995, because of his need for additional surgery. The commissioner revoked the prior granting of the discontinuance and found that the plaintiff should have received benefits from January 9, 1995, the actual discontinuance date, through August 2, 1995.

The plaintiff appealed to the board claiming again that the informal hearing, which was the subject of his prior appeal, was unconstitutional. The board dismissed the second appeal because the constitutionality of the procedure had already been discussed in the first appeal, and because the board could not give the plaintiff any practical relief since his temporary total disability benefits had already been reinstated.

The plaintiff claims that, although his particular claim is moot, the issue he raises should be decided as an exception to the usual rule that precludes review. He argues that the question of the constitutionality of form 36 proceedings is capable of repetition, while evading review. We conclude that this is not a case requiring a review of what would otherwise be moot. Loisel v. Rowe, 233 Conn. 370, 388, 660 A.2d 323 (1995). We also conclude that the plaintiff cannot be afforded any further practical relief at this time because his benefits have been reinstated. Furthermore, the plaintiff had a formal hearing after the board agreed with him in his first appeal that his due process rights entitled him to a formal hearing.

The dismissal of the plaintiffs appeal by the workers’ compensation review board is affirmed.

       The notice is designated as form 36 of the workers’ compensation commission of Connecticut.

       When considering that appeal, the board stated that the term “hearing” as used in General Statutes § 31-296 means an emergency informal hearing to be held as soon as possible, but that the employee had the right to challenge the notice in a subsequent formal hearing. The board recognized the due process right of an employee to a formal hearing to be held at the request of an employee after the holding of an initial informal hearing.


author: LAVERY, J.

text:
    STATE OF CONNECTICUT v. ANTHONY BOWDEN
    (AC 18433)
    Lavery, Landau and Daly, Js.
    Argued January 26
    officially released May 11, 1999

      Donald Dakers, special public defender, for the appellant (defendant).

      Nancy L. Chupak, deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Elizabeth Bodine, assistant state’s attorney, for the appellee (state).
   Opinion

LAVERY, J.

The defendant, Anthony Bowden, appeals from the judgments of conviction, rendered following his guilty plea, of two counts of larceny in the second degree in violation of General Statutes § 53a-123 (a) (3). On appeal, the defendant claims that the trial court improperly denied his oral motion to withdraw his guilty plea. Specifically, the defendant claims that the trial court violated General Statutes § 53a-60b (b) when it accepted his guilty plea, and, as a result of this impropriety, the trial court (1) misinformed him of the maximum sentence to which he could be exposed, (2) misinformed him of the mandatory minimum sentence to which he could be exposed and (3) failed to advise him adequately of the nature of the charges to which he pleaded guilty. Because we agree with the defendant’s first claim, we find it unnecessary to address his remaining claims.

The record discloses the following facts relevant to this appeal. The state and the defendant entered into an oral plea agreement whereby the defendant agreed to plead guilty under the Alford doctrine to two counts of robbery in the third degree in violation of General Statutes § 53a-136 (a) and two counts of assault in the second degree of a victim age sixty or older in violation of § 53a-60b (a). In return, the state agreed to recommend a sentence of twenty years imprisonment, suspended after ten years, and to enter a nolle prosequi to the remaining charges. On February 4, 1998, at the plea canvass, in accordance with the plea agreement, the defendant pleaded guilty under the Alford doctrine to these four charges and accepted the trial court’s recommendation of eleven years imprisonment.

After a brief recess, however, the trial court dismissed the defendant’s guilty plea as to the two counts of robbery in the third degree and substituted two counts of larceny in the second degree in violation of § 53a-123 (a) (3). The trial court informed the defendant that if he was convicted of two counts of larceny in the second degree and two counts of assault of a victim sixty or older in the second degree, he could face a total of thirty years in jail of which four years could not be suspended and a $20,000 fine. The defendant pleaded guilty to two counts of larceny in the second degree and two counts of assault of a victim sixty or older in the second degree in return for a sentence of eleven years imprisonment.

On April 3, 1998, at the sentencing proceeding, the trial court vacated the defendant’s guilty plea as to the two counts of assault of a victim sixty or older in the second degree and dismissed those two charges because § 53a-60b (b) prohibits a defendant from being found guilty of both larceny in the second degree and assault of a victim sixty or older in the second degree where, as here, those charges arise out of the same incident. The trial court informed the defendant that if he was convicted of two counts of larceny in the second degree, he could face “a maximum penalty of twenty years.”

On that same date, prior to the imposition of a sentence, the defendant moved to withdraw his guilty plea due to ineffective assistance of counsel. The trial court denied the defendant’s motion. Standby counsel then claimed that, as a result of the trial court’s decision to vacate the defendant’s guilty plea as to the two counts of assault of a victim sixty or older in the second degree and to dismiss those charges, the defendant had been misinformed at the plea canvass of the maximum sentence to which he could be exposed. The trial court rejected that claim and sentenced the defendant to eleven years imprisonment. This appeal followed.

On appeal, the defendant claims that the trial court improperly denied his oral motion to withdraw his guilty plea because, prior to accepting his plea, the trial court misinformed him of the maximum possible sentence to which he could be exposed. We agree with the defendant and reverse the judgments of the trial court.

Our Supreme Court has stated that “once entered, a guilty plea cannot be withdrawn except by leave of the court, within its sound discretion, and a denial thereof is reversible only if it appears that there has been an abuse of discretion . . . and that [t]he burden is always on the defendant to show a plausible reason for the withdrawal of a plea of guilty. . . . Those statements, however, apply only to the withdrawal of pleas which are valid in the first instance. . . . Before the imposition of a sentence the trial court is required to permit the withdrawal of a plea of guilty upon proof of any of the grounds set forth in Practice Book § 721 [now § 39-27].” (Citations omitted; internal quotation marks omitted.) State v. Collins, 207 Conn. 590, 597, 542 A.2d 1131 (1988). “One of these grounds is that ‘[t]he plea was accepted without substantial compliance with [Practice Book] § 711 [now § 39-19].’ State v. James, 197 Conn. 358, 361, 497 A.2d 402 (1985); see Practice Book § 39-27 (1).

Practice Book § 39-19 provides in relevant part: “The judicial authority shall not accept the plea without first addressing the defendant personally and determining that he or she fully understands ... (4) The maximum possible sentence on the charge, including, if there are several charges, the maximum sentence possible from consecutive sentences and including, when applicable, the fact that a different or additional punishment may be authorized by reason of a previous conviction . . . .” Our Supreme Court has stated that “Practice Book § 711 (4), [now § 39-19 (4)] is an express recognition [t]hat the defendant’s awareness of the maximum sentence possible is an essential factor in determining whether to plead guilty .... The length of time a defendant may have to spend in prison is clearly crucial to a decision of whether or not to plead guilty. . . . Accordingly, Practice Book § 711 (4) require [s] that the court determine that the defendant fully understands those consequences.” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. James, supra, 197 Conn. 363; see Rouillard v. Commissioner of Correction, 35 Conn. App. 754, 756-57, 646 A. 2d 948, cert. denied, 231 Conn. 945, 653 A. 2d 827 (1994). We must determine whether the trial court’s failure to inform the defendant accurately of the maximum possible sentence to which his plea exposed him fell below the standard that constitutes substantial compliance with Practice Book § 39-19 (4). See State v. James, supra, 362.

In James, the trial court failed to inform the defendant of the maximum possible penalty for the offense to which he pleaded guilty and, prior to the imposition of a sentence, the defendant moved to withdraw his guilty plea. Id., 360. The trial court denied the motion and the defendant appealed. Id. Our Supreme Court set aside the judgment of the trial court because the trial court did not substantially comply with Practice Book §711 (4), now § 39-19 (4), when it failed to inform the defendant of the maximum possible sentence to which he was exposed, and there was no indication in the record that the defendant knew the potential maximum sentence. Id., 364-66.

In the present case, the state concedes that, prior to accepting the defendant’s guilty plea, the trial court misinformed the defendant that he faced a maximum sentence of thirty years imprisonment when he faced a maximum sentence of only twenty years imprisonment. Prior to the imposition of a sentence, counsel claimed that this error “may very well have been the inducement to cause [the defendant] to accept the agreed recommendation of eleven years.” There is nothing in the record to indicate that the defendant had knowledge of the actual maximum sentence. The decision in James establishes that, in the present case, the trial court did not substantially comply with Practice Book § 39-19 (4) because it accepted the defendant’s guilty plea without first determining that he was aware of and understood the potential maximum sentence to which he was exposed. As a result, the trial court’s denial of the defendant’s motion constituted reversible error.

Our analysis does not, however, end here. Relying on State v. Domian, 235 Conn. 679, 668 A.2d 1333 (1996), the trial court concluded that “whether it was four counts or two counts, the defendant, in my mind, would not have changed his plea. . . . [H]e wanted to accept the bargain of eleven years no matter how many counts were there, or what the counts were.” We conclude that the trial court’s reliance on Domian was misplaced.

In Domian, the defendant did not move to withdraw his guilty plea prior to the imposition of a sentence and claimed for the first time on appeal that the trial court had failed to comply with Practice Book § 711 (2), now § 39-19 (2). State v. Domian, supra, 235 Conn. 685. The defendant sought review of this unpreserved claim under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or under the plain error doctrine. State v. Domian, supra, 685. Our Supreme Court held that the trial court’s failure to comply with Practice Book § 711 (2) did not constitute a constitutional violation entitling the defendant to relief under Golding and that this claim was not reviewable under the plain error doctrine. State v. Domian, supra, 692-93.

The decision in Domian is consistent with precedents in which this court or our Supreme Court have concluded that a defendant’s unpreserved claim alleging noncompliance with Practice Book § 39-19 did not constitute a constitutional violation entitling the defendant to relief under Golding; State v. Peterson, 51 Conn. App. 645, 655-58, 725 A.2d 333, cert. denied, 248 Conn. 905, 731 A.2d 310 (1999); State v. Dennis, 30 Conn. App. 416, 424-25, 621 A.2d 292, cert. denied, 226 Conn. 901, 625 A.2d 1376 (1993); see also State v. Wright, 207 Conn. 276, 285-88, 542 A.2d 299 (1988); or the plain error doctrine. State v. Wright, supra, 288-89; State v. Peterson, supra, 658-59. The foregoing cases demonstrate that a defendant’s failure to raise a claim of noncompliance with Practice Book § 39-19 in a timely manner imposes limitations on the scope of our review that do not exist where, as here, a defendant timely moves to withdraw his guilty plea prior to the imposition of a sentence. See State v. Collins, supra, 207 Conn. 598 (“[b]ecause this issue was raised in timely fashion at the defendant’s sentencing hearing, it is properly before us without regard to the limitations of State v. Evans, [165 Conn. 61, 327 A.2d 576 (1973)]”); State v. Velez, 30 Conn. App. 9, 21-22, 618 A.2d 1362, cert. denied, 225 Conn. 907, 621 A.2d 289 (1993) (“[w]hile the trial court’s . . . compliance with the provisions of Practice Book § 711 [now § 39-19] maybe mandatory when challenged on direct appeal, that may not be the case when claimed under the Evans-Golding bypass doctrine, where the claim of noncompliance must be of constitutional magnitude”).

In the present case, because the defendant timely moved to withdraw his guilty plea prior to the trial court’s imposition of a sentence, our review of the trial court’s denial of that motion is not restricted by the limitations imposed by Golding and the plain error doctrine. Instead, we reviewed the trial court’s denial of the defendant’s motion using the standard set forth in State v. James, supra, 197 Conn. 361-66. Having applied that standard to the record before us, we conclude that the trial court did not substantially comply with Practice Book § 39-19 (4) and, therefore, improperly denied the defendant’s motion to withdraw his guilty plea.

The judgments are reversed and the case is remanded with direction to grant the defendant’s motion to withdraw his guilty plea.

In this opinion the other judges concurred.

        “North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970). A defendant pleading under the Alford doctrine neither admits his guilt nor protests his innocence. Instead, a defendant merely acknowledges that the state has evidence sufficient to obtain a conviction and therefore chooses to plead guilty in order to avoid the imposition of a possibly more serious punishment after trial.” State v. Ells, 39 Conn. App. 702, 703 n.2, 667 A.2d 556 (1995), cert. denied, 235 Conn. 940, 669 A.2d 577 (1996).

       General Statutes § 53a-60b (b) provides: “No person shall be found guilty of assault in the second degree or larceny in the second degree under section 53a-123 (a) (3) and assault of a victim sixty or older in the second degree upon the same incident of assault or larceny, as the case may be, but such person may be charged and prosecuted for all such offenses upon the same information.”

       Standby counsel claimed: “[I]t does appear to me that there is some basis to claim that at the time that the defendant entered his guilty pleas on . . . the larceny second and the assault in the second degree counts, that he felt he was facing a higher amount of time on those charges than he ended up having to do, because of the realization subsequent that he could not be convicted in these cases of both assault in the second degree on a person over sixty and a crime of larceny in the second degree, theft from the person. So it does seem to me there is some claim that could be made, or a claim that could be made. . . . The amount of time he thought he was facing, initially, was thirty years rather than twenty years and that may very well have been the inducement to cause him to accept the agreed recommendation of eleven years.”

       Practice Book § 39-27 provides: “The grounds for allowing the defendant to withdraw his or her plea of guilty after acceptance are as follows:
      “(1) The plea was accepted without substantial compliance with Section 39-19;
      “(2) The plea was involuntary, or it was entered without knowledge of the nature of the charge or without knowledge that the sentence actually imposed could be imposed;
      “(3) The sentence exceeds that specified in a plea agreement which had been previously accepted, or in a plea agreement on which the judicial authority had deferred its decision to accept or reject the agreement at the time the plea of guilty was entered;
      “(4) The plea resulted from the denial of effective assistance of counsel;
      “(5) There was no factual basis for the plea; or
      “(6) The plea either was not entered by a person authorized to act for a corporate defendant or was not subsequently ratified by a corporate defendant.”

       Practice Book § 39-19 provides: “The judicial authority shall not accept the plea without first addressing the defendant personally and determining that he or she fully understands:
      “(1) The nature of the charge to which the plea is offered;
      “(2) The mandatory minimum sentence, if any;
      “(3) The fact that the statute for the particular offense does not permit the sentence to be suspended;
      “(4) The maximum possible sentence on the charge, including, if there are several charges, the maximum sentence possible from consecutive sentences and including, when applicable, the fact that a different or additional punishment may be authorized by reason of a previous conviction; and
      “(5) The fact that he or she has the right to plead not guilty or to persist in that plea if it has already been made, and the fact that he or she has the right to be tried by a jury or a judge and that at that trial the defendant has the right to the assistance of counsel, the right to confront and cross-examine witnesses against him or her, and the right not to be compelled to incriminate himself or herself.”

       In its appellate brief, the state concedes: “It is true, in light of § 53a-60b (b)’s prohibition against finding a defendant guilty of both larceny in the second degree and assault in the second degree on a victim sixty or over, the trial court erred in combining the sentences for these charges and thus gave the defendant an incorrect sentence range.”

       In State v. Golding, supra, 213 Conn. 239-40, our Supreme Court held that “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.”

       “Whore a trial court’s action does not result in any manifest injustice, a defendant’s claim under the plain error doctrine does not warrant review. . . . Such review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” (Citations omitted; internal quotation marks omitted.) State v. Wright, 207 Conn. 276, 288-89, 542 A.2d 299 (1988).

       In State v. Golding, supra, 213 Conn. 239-40, our Supreme Court reformulated the test for reviewing unpreserved claims that was set forth in State
        v. Evans, supra, 165 Conn. 70; see State v. Velez, 30 Conn. App. 9, 20, 618 A.2d 1362, cert. denied, 225 Conn. 907, 621 A.2d 289 (1993).


author: HENNESSY, J.

text:
    SANDRA APPLETON v. BOARD OF EDUCATION OF THE TOWN OF STONINGTON ET AL.
    (AC 17778)
    Schaller, Hennessy and Sullivan, Js.

      Argued December 3, 1998
    officially released May 11, 1999

      Gilbert Shasha, with whom, on the brief, was Juri E. Taalman, for the appellant (plaintiff).

      Michael C. Deakin, with whom, on the brief, was Peter D. Clark, for the appellees (defendants).
   Opinion

HENNESSY, J.

The plaintiff, Sandra Appleton, appeals from the judgment rendered following the trial court’s granting of the defendants’ motion for summary judgment on all three counts of her complaint. The plaintiff brought an action against the defendants, the Stonington board of education (board), Cherri Rifen-burg, principal of Deans Mill School, and Anthony Vacca, assistant principal of Deans Mill School, alleging breach of contract against the board, intentional infliction of emotional distress against all three defendants, and tortious interference with a contract against the defendants Rifenburg and Vacca. The plaintiff claims that the trial court improperly granted the defendants’ motion for summary judgment (1) as to count one of the complaint, because the trial court improperly found that (a) the trial court lacked jurisdiction because the plaintiff failed to exhaust her administrative remedies, (b) the plaintiff voluntarily resigned her position and (c) as a matter of law, there can be no discharge where there has been a resignation, (2) as to count two of the complaint, because the trial court improperly concluded that, because the plaintiff was represented by counsel and voluntarily resigned her position, as a matter of law, she cannot claim intentional infliction of emotional distress and (3) as to count three of the complaint, because the trial court improperly concluded, as a matter of law, that the defendants Rifenburg and Vacca could not tortiously interfere with the contract because they were employees of the board and parties to the contract. We reverse the judgment of the trial court in part and affirm it in part.

The following undisputed facts are relevant to this appeal. The plaintiff was a tenured teacher who had a contract with the board that began in 1963. Beginning in September, 1995, Rifenburg voiced her displeasure with the plaintiff because she believed that the plaintiff failed to monitor a student properly concerning attendance at an after school program. The particular incident involved a situation in which one of the plaintiffs students boarded a school bus for home when he was supposed to be attending the after school program. The student’s parents, who were not at home at the time, registered a complaint with the school.

Subsequently, the plaintiffs competency as a teacher was questioned by the defendants. On September 15, 1995, Rifenburg and a school psychologist met with the plaintiff in her classroom following a report by another teacher that the plaintiff was acting in a strange manner. During this period, Vacca and Rifenburg expressed concern about the plaintiffs health.

On September 18,1995, Rifenburg informed the plaintiff that she would be placed on a paid leave of absence. Subsequently, a series of discussions and negotiations arose between the interim superintendent of schools, the board’s attorney, counsel for the Connecticut Education Association (CEA), the president of the Stoning-ton Education Association, the plaintiffs union representative and the plaintiff. The plaintiff submitted to two psychological evaluations at the defendants’ request. The evaluations indicated that the plaintiff was capable of returning to work. As a result of the negotiations, a memorandum of agreement was drafted and signed by the parties. As part of the agreement, the plaintiff agreed to sign a letter of resignation. On February 5, 1996, the plaintiff submitted a signed letter of resignation to the interim superintendent of schools, which was to be effective in June, 1996, the close of the school year. The plaintiff was allowed to return to work as a curriculum assistant until her resignation was effective.

“Our standard of review of a trial court’s decision to grant a motion for summary judgment is well established. Practice Book § 384 [now § 17-49] provides that summary judgment ‘shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.’ ” Zichichi v. Middlesex Memorial Hospital, 204 Conn. 399, 402, 528 A.2d 805 (1987). “In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The test is whether a party would be entitled to a directed verdict on the same facts. ... A motion for summary judgment is properly granted if it raises at least one legally sufficient defense that would bar the plaintiffs claim and involves no triable issue of fact.” (Citations omitted; internal quotation marks omitted.) Avon Meadow Condominium Assn., Inc. v. Bank of Boston Connecticut, 50 Conn. App. 688, 692-93, 719 A.2d 66, cert. denied, 247 Conn. 946, 723 A.2d 320 (1998).

I

The plaintiff first claims that the trial court improperly granted summary judgment on the breach of contract claim. Specifically, the plaintiff argues that the trial court improperly determined that it did not have jurisdiction, that she had voluntarily resigned and that, as a matter of law, there can be no discharge when there is a resignation.

A

The plaintiff argues that the trial court improperly determined that it did not have subject matter jurisdiction to hear the breach of contract claim because the plaintiff failed to exhaust her administrative remedies. We agree.

The trial court ruled that “this count fails as plaintiff did not exhaust her administrative remedies through the grievance procedure set out in her collective bargaining agreement. . . . Without such exhaustion, this court has no jurisdiction.” To support its conclusion, the court points to the language of article 28, § A, of the collective bargaining agreement. Article 28, § A, lists the items that are not to be considered grievances. Subsection (b) excludes “[a] complaint of a teacher which arises by reason of the termination of his/her employment relationship with Stonington Public Schools . . . .” The terms of the bargaining agreement, therefore, exclude the subject matter of the plaintiffs complaint from the grievance procedures. In her complaint, the plaintiff alleged that the board breached her contract by terminating her without good cause when it suspended her for an indefinite period.

We conclude, therefore, that the collective bargaining agreement did not deprive the trial court of jurisdiction to hear the matter. The defendant argues, however, that even if the plaintiffs complaint did not fall within the terms of the bargaining agreement, she was required to follow the tenets of General Statutes § 10-151, the Teacher Tenure Act. Section 10-151 provides for a specific procedure for a tenured teacher to appeal to the board of education to challenge a proposed termination and includes a provision for a hearing before a single hearing officer. We are not persuaded by that argument.

In Geren v. Board of Education, 36 Conn. App. 282, 650 A.2d 616 (1994), cert. denied, 232 Conn. 907, 653 A.2d 194 (1995), this court rejected the plaintiffs claim that the trial court improperly denied his motion for a directed verdict because the exclusive forum for determining the voluntariness of a resignation in a breach of an employment contract claim is an administrative hearing pursuant to § 10-151. In Geren, we held that “[t]he determination of voluntariness ... is logically prior to and, thus, outside the scope of a hearing pursuant to § 10-151.” Id., 296; see also Mendillo v. Board of Education, 246 Conn. 456, 464-70, 717 A.2d 1177 (1998) (plaintiff in wrongful constructive discharge claim not required to exhaust statutory remedies under § 10-151 or contractual administrative remedies). Therefore, the plaintiff would need to follow the tenets of § 10-151 only after an initial determination was made that her resignation was involuntary.

B

The plaintiff argues that the trial court improperly inferred from the facts that she voluntarily resigned from her position. Specifically, the plaintiff argues that she was placed on paid leave of absence, not allowed to return to her classroom and coerced into signing the agreement and resignation letter, believing that she had no other choice.

In support of the defendants’ motion for summary judgment, the trial court had before it an agreement and a resignation letter signed by the plaintiff, and evidence that a negotiated settlement existed in which the plaintiff was represented by counsel for the CEA and the president of her local union. Additionally, the plaintiff admitted in her affidavit in support of her objection to the defendant’s motion for summary judgment that she intended to retire at the end of the 1996 school year. Countering those facts was a statement by the plaintiff contained in her pleadings that she had “reluctantly” signed the agreement.

“Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact ... a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue. . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court [in support of a motion for summary judgment].” (Internal quotation marks omitted.) Wellington Systems, Inc. v. Redding Group, Inc., 49 Conn. App. 152, 158, 714 A.2d 21, cert. denied, 247 Conn. 905, 720 A.2d 516 (1998).

The plaintiff further argues that intent is a question of fact that is ordinarily inferred from one’s conduct and, as such, should be determined by the finder of fact and not by the trial court on a motion for summary judgment. “We recognize that summary judgment is ordinarily inappropriate where an individual’s intent and state of mind are implicated. . . . The summary judgment rule would be rendered sterile, however, if the mere incantation of intent or state of mind would operate as a talisman to defeat an otherwise valid motion. Indeed, the salutary purposes of summary judgment—avoiding protracted, expensive and harassing trials—apply no less to [employment termination] cases than to commercial or other areas of litigation. . . . Our Supreme Court has held that even with respect to questions of motive, intent and good faith, the party opposing summary judgment must present a factual predicate for Ms argument in order to raise a genuine issue of fact.” (Citation omitted; mtemal quotation marks omitted.) Reynolds v. Chrysler First Commercial Corp., 40 Conn. App. 725, 731-32, 673 A.2d 573, cert. denied, 237 Conn. 913, 675 A.2d 885 (1996).

In tMs case, the board supported its motion for summary judgment with ample evidence to indicate that there was no genuine issue of material fact as to whether the plaintiff voluntarily resigned. The plaintiff, m opposmg the motion for summary judgment, failed to present a factual predicate for her argument that her resignation was not voluntary and, therefore, failed to demonstrate a genuine issue of material fact. Under these circumstances, we conclude that the trial court properly determmed that there was no genuine issue of material fact with regard to whether the plaintiff voluntarily resigned from her position with the Stoning-ton school system.

C

The plaintiff further claims that the trial court improperly concluded that there can be no constructive discharge, as a matter of law, when there has been a voluntary resignation. Specifically, the plaintiff argues that case law indicates that a constructive discharge can occur when an employer renders an employee’s working conditions so difficult and intolerable that a reasonable person would feel forced to resign and, m this case, there is a question of material fact as to whether the plaintiffs resignation was the result of constructive discharge.

The trial court determined that “[a]s to count one, constructive discharge, the motion for summary judgment is granted. By her own admission . . . plaintiff voluntarily resigned her position. There can be no discharge when there has been a resignation. Seery v. Yale-New Haven Hospital, 17 Conn. App. 532, 540, 554 A.2d 757 (1989).” We disagree with the trial court’s analysis of this claim as a constructive discharge claim and the trial court’s reliance on Seery for the proposition that when there is a resignation there cannot be a discharge. “ ‘Normally, an employee who resigns is not regarded as having been discharged, and thus would have no right of action for abusive discharge.’ . . . Through the use of constructive discharge, [however,] the law recognizes that an employee’s ‘voluntary’ resignation may be, in reality, a dismissal by the employer.” (Citation omitted; emphasis added.) Id. “ ‘Constructive discharge occurs when an employer renders an employee’s working conditions so difficult and intolerable that a reasonable person would feel forced to resign.’ ... A claim of constructive discharge must be supported by more than the employee’s subjective opinion that the job conditions have become so intolerable that he or she was forced to resign.” (Citations omitted; emphasis added.) Id. Therefore, through a claim of constructive discharge, a voluntary resignation can be considered a dismissal. Although we disagree with the reasoning of the trial court, we concur with the trial court’s decision to grant the defendant’s motion for summary judgment on different grounds.

In count one of the complaint, the plaintiff alleged a breach of contract and not a constructive discharge. In her complaint, the plaintiff made numerous allegations with regard to the defendants’ conduct and alleged that the “board, Rifenburg, and Vacca’s conduct . . . constituted a breach of contract, in that . . . defendant effectively terminated plaintiff by suspending her for an indefinite period . . . .” (Emphasis added.) Therefore, it is a breach of contract claim based on the plaintiffs suspension with pay, and not a wrongful constructive discharge claim that the plaintiff is alleging in her complaint. It appears, therefore, that the plaintiff is attempting to interject the tort claim of wrongful constructive discharge into her complaint by either adding it as an additional claim or by now alleging that the contract was breached by the tortious acts of the defendants.

Insofar as the plaintiff is attempting to allege an additional tort claim for wrongful discharge, even if an additional claim could be raised, we note that a tenured teacher cannot pursue a separate tort claim for wrongful discharge. See Tomlinson v. Board of Education, 226 Conn. 704, 729-30, 629 A.2d 333 (1993). “ ‘[T]he right to recover in tort for wrongful discharge extends only to employees at will.’ . . . Because the plaintiff is a tenured teacher . . . she is not an employee at will.” (Citation omitted.) Id., 730 n.18.

Insofar as the plaintiff is attempting to allege that the breach of contract was due to her tortious constructive discharge by the defendants, we note that that claim was not alleged in the complaint. The plaintiff stated in her affidavit in support of her objection to the defendants’ motion for summary judgment that she “was constructively discharged, in violation of public policy from [her] position by the defendants, who rendered [her] working conditions so difficult and intolerable, as hereinafter set forth, that [she] was compelled to resign.” However, “[affidavits are not pleadings . . . and a plaintiff cannot, under the guise of fortifying the complaint, present an entirely new cause of action or expand the scope of his cause of action by means of [an affidavit], . . . The issue must be one which the party opposing the motion is entitled to litigate under his pleadings and the mere existence of a factual dispute apart from the pleadings is not enough to preclude summary judgment.” (Internal quotation marks omitted.) Beebe v. East Haddam, 48 Conn. App. 60, 70, 708 A.2d 231 (1998).

Because we concluded that the trial court had jurisdiction, properly determined that the plaintiffs resignation was voluntary and there was no constructive discharge pleaded, there is no genuine issue of material fact with regard to whether the plaintiff was terminated without cause, and the defendant board was entitled to judgment as a matter of law on count one.

II

The plaintiff next claims that the trial court improperly concluded, as a matter of law, that she cannot maintain a cause of action for intentional infliction of emotional distress because the plaintiff was represented by counsel and because she voluntarily resigned from her position. The defendants respond that under Morris v. Hartford Courant Co., 200 Conn. 676, 681, 513 A.2d 66 (1986), and Parsons v. United Technologies Corp., 243 Conn. 66, 88, 700 A.2d 655 (1997), a claim for intentional infliction of emotional distress in the employment context must be based on conduct relating to termination or the termination process. The defendants further argue that, because the plaintiff was not terminated, she was not entitled to recover for intentional infliction of emotional distress.

The defendants’ argument is not supported by the cases cited. In Morris, our Supreme Court upheld the trial court’s order to strike a wrongful discharge claim because the plaintiff failed to allege an important violation of public policy. The Supreme Court, however, did not agree with the trial court’s conclusion that because the plaintiff failed to state a claim for wrongful discharge, the plaintiff could not claim unintentional infliction of emotional distress. The Morris court held that “[t]here is nothing ... to preclude an action for unintentional infliction of emotional distress based upon unreasonable conduct of the defendant in the termination process.” Morris v. Hartford Courant Co., supra, 200 Conn. 681-82.

In Parsons v. United Technologies Corp., supra, 243 Conn. 88-89, our Supreme Court held that “[t]he mere termination of employment, even where it is wrongful, is . . . not, by itself, enough to sustain a claim for negligent infliction of emotional distress.” Contrary to the defendant’s contention, Morris and Parsons simply state that, in emotional distress claims arising from a termination, the plaintiff must allege some conduct other than the termination itself to support the claim.

In this case, the plaintiff does not allege that the emotional distress claim arose from a termination. She alleges that the emotional distress claim arose from conduct separate and distinct from the alleged termination. The plaintiff alleges specific conduct by the defendants beginning in September, 1996, and ending at the time she signed the resignation. Because the claim for emotional distress was based on actions prior to the alleged termination, the fact that the conduct may have resulted in a resignation rather than a termination does not preclude the plaintiff from bringing an intentional infliction of emotional distress claim against the defendants.

We conclude, therefore, that the trial court improperly granted the defendants’ motion for summary judgment when it concluded that “[wjhile this issue is normally a question of fact for the jury, the facts in this case are undisputed; [the] plaintiff voluntarily resigned her job and at such time was fully represented by counsel. The plaintiff has not, therefore, suffered a loss of her employment and thus cannot make a claim for intentional infliction of emotional distress. See Morris v. Hartford Courant Co., [supra, 200 Conn. 681].”

“In order for the plaintiff to prevail in a case for liability under . . . [the intentional infliction of emotional distress], four elements must be established. It must be shown: (1) that the actor intended to inflict emotional distress; or that he knew or should have known that emotional distress was a likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant’s conduct was the cause of the plaintiffs distress; and (4) that the emotional distress sustained by the plaintiff was severe.” (Internal quotation marks omitted.) Petyan v. Ellis, 200 Conn. 243, 253, 510 A.2d 1337 (1986).

The plaintiff did not allege that a termination was the basis of her intentional infliction of emotional distress claim; the plaintiff alleges that the defendant subjected her to a humiliating series of incidents in the classroom and in front of coworkers. The plaintiff alleges that in September, 1995, following an incident in which the plaintiff allowed one of her students to return home instead of going to an after school program, Rifenburg told her that she was acting strangely and that she needed to take time off. In addition, the plaintiff alleges that Rifenburg told her that she was “collecting information on her” and conducted meetings outside her presence. She further alleges that on September 18, 1995, Rifenburg called the police to have her escorted out of the school. The plaintiff alleged that the defendants required her to undergo two psychiatric examinations. She further alleged that the defendants required her to take a leave of absence even though the psychological evaluations indicated that she could return to work. She alleges that the conduct was outrageous, that the defendants knew or should have known that emotional distress would likely result from their conduct and that it caused her severe emotional distress.

The defendants argued in support of their motion for summary judgment that there was no termination and, even assuming that the defendants’ engaged in the conduct alleged, it was not outrageous because at all times the plaintiff was represented by counsel. We conclude that the plaintiff alleged sufficient facts to state a claim for intentional infliction of emotional distress. The defendants, however, have failed to show the absence of a genuine issue of material fact regarding whether their alleged conduct occurred or whether it was outrageous. We conclude that the trial court improperly granted the defendants’ motion for summary judgment on count two.

Ill

The plaintiff finally claims that the trial court improperly held that, because the defendants Rifenburg and Vacca were employed by the board and were parties to the contract, there can be no tortious interference with the contract between the plaintiff and the board by them, as a matter of law. Specifically, the plaintiff argues that agents can be held liable for such interference or inducement if they did not act legitimately within the scope of their duties, but, instead, used their authority and power improperly for personal motives or gain.

“[Our Supreme Court] has long recognized a cause of action for tortious interference with contract rights .... The essential elements of such a claim include, of course, the existence of a contractual or beneficial relationship and that the defendant(s), knowing of that relationship, intentionally sought to interfere with it; and, as a result, the plaintiff claimed to have suffered actual loss. . . . [F]or a plaintiff successfully to prosecute such an action it must prove that the defendant’s conduct was in fact tortious. This element may be satisfied by proof that the defendant was guilty of fraud, misrepresentation, intimidation or molestation ... or that the defendant acted maliciously.” (Citations omitted; internal quotation marks omitted.) Solomon v. Aberman, 196 Conn. 359, 364-65, 493 A.2d 193 (1985).

The trial court held that the defendants’ motion for summary judgment should be granted because there can be no intentional interference with contractual relations by someone who is directly or indirectly a party to the contract. “[T]he general rule is that the agent may not be charged with having interfered with a contract of the agent’s principal.” Selby v. Pelletier, 1 Conn. App. 320, 327 n.4, 472 A.2d 1285 (1984). “[A]n agent acting legitimately within the scope of his authority cannot be held liable for interfering with or inducing his principal to breach a contract between his principal and a third party, because to hold him liable would be, in effect, to hold the corporation liable in tort for breaching its own contract . . . [the agent, however,] could be held liable for such interference or inducement if he did not act legitimately within his scope of duty but used the corporate power improperly for personal gain.” (Citations omitted; internal quotation marks omitted.) Wellington Systems, Inc. v. Redding Group, Inc., supra, 49 Conn. App. 168.

In her complaint, the plaintiff alleged that Rifenburg and Vacca interfered with the contractual and beneficial relationship between her and her employer, the board. She alleged that their conduct was part of a campaign to discredit her and to cause the plaintiff to be suspended or discharged from her employment. She alleged that they were discrediting her to deflect public scrutiny from themselves regarding subjects of wrongdoing and misconduct and that they acted out of malice, hatred, or ill will toward her. In effect, the plaintiff alleged that the defendants acted outside the scope of their authority in their actions. We conclude that the plaintiff alleged sufficient evidence to state a claim for tortious interference with a contract. The defendants relied solely on their argument that, as agents of the board, they cannot be held hable for tortious interference with a contractual relationship in their motion for summary judgment. The defendants, therefore, failed to carry their burden to show the absence of a genuine issue of material fact with regard to whether the defendants acted outside the scope of their authority.

Because agents can be hable for tortious interference with a contractual relationship when they act outside the scope of their authority, we conclude that the trial court improperly concluded that “there can be no tor-tious interference of a contract by someone who is directly, or indirectly, a party to the contract.” Because we conclude that the defendants failed to carry their burden with regard to summary judgment, we hold that the trial court improperly granted summary judgment with regard to the count three tortious interference with a contractual relationship claim.

The judgment is reversed as to counts two and three only and the case is remanded for further proceedings on those counts.

In this opinion the other judges concurred.

       Reference to the defendants in this opinion includes ail three defendants unless otherwise specified.

       The plaintiff stated in her affidavit in support of her opposition to the defendants’ motion for summary judgment: “On or about August 29, 1995, the first day of that school year, Cherri Rifenburg . . . came to my classroom and represented that several parents had called upset that I would be retiring halfway through tire school year. I told Rifenburg that she knew I would not be retiring until the end of the year.” In addition, the plaintiff also signed a memorandum of agreement that stated that “Appleton at the present time, and for a considerable period of time, has anticipated retire-merit as a certified professional employee in the Stonington public schools at the end of the academic year in June of 1996.”

       “This court may . . . affirm a trial court’s decision even though it is based on other grounds if the same result is required by law.” Sylvestre v. United Services Automobile Assn. Casualty Ins. Co., 42 Conn. App. 219, 224, 678 A.2d 1005 (1996), aff'd, 240 Conn. 544, 692 A.2d 1254 (1997).

       “A fundamental tenet in our law is that the plaintiffs complaint defines the dimensions of the issues to be litigated. [T]he right of a plaintiff to recover is limited to the allegations of [her] complaint. . . . The purpose of the complaint is to limit the issues to be decided at the trial of a case and is calculated to prevent surprise. ... A plaintiff may not allege one cause of action and recover upon another. Facts found but not averred cannot be made the basis for a recovery. ... A judgment in the absence of written pleadings defining the issues would not merely be erroneous, it would be void.” (Citations omitted; internal quotation marks omitted.) Pergament v. Green, 32 Conn. App. 644, 650, 630 A.2d 615, cert. denied, 228 Conn. 903, 634 A.2d 296 (1993).