author: FOTI, J.

text:
    CLARA PICKEL ET AL. v. AUTOMATED WASTE DISPOSAL, INC., ET AL.
    (AC 20592)
    Foti, Spear and Freedman, Js.

      Argued April 23
    officially released August 21, 2001

      Harry Cohen, with whom was Murray J. Kessler, for the appellant (named plaintiff).

      John B. Farley, with whom, on the brief, were Reed A. Slatas and Stephen H. Broer, for the appellee (named defendant).

      Edward V. Walsh, for the appellee (defendant DeVivo Industries, Inc.).
   Opinion

FOTI, J.

The plaintiff, Clara Pickel, appeals from the judgment of the trial court, rendered after a jury trial, in favor of the defendants, Automated Waste Disposal, Inc. (Automated Waste), and DeVivo Industries, Inc. (DeVivo). On appeal, the plaintiff claims that the court improperly (1) deprived her of a fair trial because of its abusive conduct, (2) ruled on certain evidence and (3) refused to allow her to make an offer of proof. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On April 15, 1994, Automated Waste delivered a dumpster to the United States Postal Service office at 23 Backus Avenue, Danbury, pursuant to a contract for waste removal. DeVivo allegedly manufactured and sold the dumpster to Automated Waste. On October 29,1994, the plaintiff, while acting in the course of her employment for the United States Postal Service, went to empty some trash into the dumpster. As she was emptying the trash, the lid to the dumpster suddenly struck her on the head. The blow caused the plaintiff to fall to the ground, where she remained unconscious until help arrived. The plaintiff sustained serious personal injuries.

By way of a two count amended complaint dated January 3, 2000, the plaintiff alleged products liability claims against Automated Waste and DeVivo. On January 27, 2000, the jury returned a verdict in favor of the defendants on both counts. The court accepted the verdict. On February 2, 2000, the plaintiff filed a motion to set aside the verdict and for a new trial. The defendants each filed an objection to the plaintiffs motion on the basis of its lack of specificity. The court sustained the defendants’ objections. On February 22, 2000, the plaintiff filed an amended motion to set aside the verdict and for a new trial. On February 25,2000, after a hearing on the matter, the court denied the plaintiffs motion, and this appeal followed. Additional facts will be provided as necessary.

I

The plaintiff first claims that the court denied her a fair trial by reason of the abusive conduct of the trial judge. Specifically, the plaintiff claims that during the course of the trial, the judge displayed episodes of prejudice, anger and hostility in the tone of his voice against the plaintiff. The plaintiff further claims that the court did not display hostility toward the defendants. The plaintiff concedes that she did not preserve the issue at trial. She argues that her claim is reviewable, however, under the plain error doctrine.

We begin by stating the applicable standard of review. “It is a well settled general rule that courts will not review a claim of judicial bias on appeal unless that claim was properly presented to the trial court via a motion for disqualification or a motion for mistrial. Gillis v. Gillis, 214 Conn. 336, 343, 572 A.2d 323 (1990); Practice Book § [60-5]. We have repeatedly indicated our disfavor with the failure, whether because of a mistake of law, inattention or design, to object to errors occurring in the course of a trial until it is too late for them to be corrected, and thereafter, if the outcome of the trial proves unsatisfactory, with the assignment of such errors as grounds of appeal. Timm v. Timm, 195 Conn. 202, 205, 487 A.2d 191 (1985); Krattenstein v. G. Fox & Co., 155 Conn. 609, 616, 236 A.2d 466 (1967). This court has also recognized, however, that a claim of judicial bias strikes at the very core of judicial integrity and tends to undermine public confidence in the established judiciary. . . . Cameron v. Cameron, 187 Conn. 163, 168, 444 A.2d 915 (1982). No more elementary statement concerning the judiciary can be made than that the conduct of the trial judge must be characterized by the highest degree of impartiality. If he departs from this standard, he casts serious reflection upon the system of which he is a part. Id., 168-69; State v. Echols, 170 Conn. 11, 13, 364 A.2d 225 (1975); see State v. Conroy, 194 Conn. 623, 633, 484 A.2d 448 (1984). We review this claim, therefore, only under a plain error standard of review.” (Internal quotation marks omitted.) Knock v. Knock, 224 Conn. 776, 792-93, 621 A.2d 267 (1993).

“A judge is not an umpire in a forensic encounter. . . . He is a minister of justice. ... He may, of course, take all reasonable steps necessary for the orderly progress of the trial. ... In whatever he does, however, the trial judge should be cautious and circumspect in his language and conduct. . . . A judge should be scrupulous to refrain from hearing matters which he feels he cannot approach in the utmost spirit of fairness and to avoid the appearance of prejudice as regards either the parties or the issues before him. ... A judge, trying the cause without a jury, should be careful to refrain from any statement or attitude which would tend to deny the defendant a fair trial. ... It is his responsibility to have the trial conducted in a manner which approaches an atmosphere of perfect impartiality which is so much to be desired in a judicial proceeding.” (Citations omitted; internal quotation marks omitted.) Cameron v. Cameron, supra, 187 Conn. 169.

We have reviewed the transcripts and the audiotapes that the plaintiff filed with this court, and we conclude that the statements made by the trial judge did not constitute plain error. The comments with which the plaintiff takes issue occurred sporadically during the course of the trial and were not pervasive throughout the entire trial. Indeed, the audiotapes did not indicate an unusual or an unreasonable tone on the part of the judge. Moreover, the statements, on their face, do not indicate a pattern of bias by the court. Many of the examples of the court’s alleged abusive conduct took place outside the presence of the jury and, although brusque at times, the comments were justified under the circumstances. The comments do not indicate partiality on the part of the judge. Rather, on the basis of their context, the comments were made in an effort to control the progress of the trial. We conclude, therefore, that the plaintiff has not established that the statements or attitude of the judge created an atmosphere of bias warranting a finding by this court of plain error.

II

The plaintiff next raises several evidentiary claims. Specifically, the plaintiff claims that the court improperly (1) refused to allow into evidence testimony of a lay witness regarding the unsafe condition of the dumpster, (2) excluded certain business records, (3) allowed the defendants’ medical expert to testify regarding the contents of documents that were not in evidence and (4) refused to admit, on the ground that it was premature, testimony by witnesses for the plaintiff concerning the malfunction and the defective condition of the dumpster where such testimony had been offered prior to any testimony concerning the plaintiffs injuries. We will address each of the plaintiffs claims in turn.

A

The plaintiff first claims that the court refused to allow into evidence testimony of a lay witness as to the unsafe condition of the dumpster. We disagree.

During the course of the trial, the court refused to allow into evidence testimony of lay witnesses Thomas Montesi, Carl Kaltenstein and Frank Grailich, who were going to testily regarding the operation, mechanics and unsafe condition of the lid of the dumpster. The plaintiff claims that the court refused to allow their testimony on the ground that an expert was necessary. The plaintiff argues that expert testimony was not required because lay witnesses could reach an opinion on the basis of their personal knowledge.

1

The following additional facts and procedural histoiy are helpful to our resolution of the plaintiffs claim. The plaintiff sought to introduce an accident report about a prior incident involving Montesi in which he was injured by a dumpster on April 9, 1994, at the same location where the plaintiff was injured. The court excused the jury, whereupon the plaintiff made an offer of proof. The plaintiff sought to establish a similarity of circumstances between her accident and Montesi’s.

The plaintiffs counsel sought to introduce Montesi’s accident report as a business record. During the offer of proof, Montesi testified that while he was emptying trash into the dumpster, the wind blew the lid down onto his wrists. Montesi was unable to testify that the dumpster that injured him was the same dumpster that injured the plaintiff. Moreover, Montesi testified that he did not know if the dumpster was the same color as the one that injured the plaintiff.

The court found for purposes of argument that the accident report qualified as a business record under General Statutes § 52-180. The court concluded, however, that the proffered evidence was not relevant and that it lacked a foundation. Montesi had testified that the wind was blowing on the date of his accident. The plaintiff, however, had not yet testified as to the weather conditions on the date of her injury. The court ruled that Montesi’s incident was not relevant to the plaintiff’s case because it happened several months prior to the plaintiffs injury. The court stated that the dumpster may not have been the same one that injured the plaintiff and that the similarity of the circumstances was not established because the plaintiff had not yet testified as to the conditions as they existed at the time of her injury. The court sustained the defendants’ objections as to the admissibility of the report as a full exhibit and marked it only for identification at that time.

“Our standard of review regarding challenges to a trial court’s evidentiary rulings is that these rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the [party raising the challenge] of substantial prejudice or injustice. ... In reviewing claims that the trial court abused its discretion, great weight is given to the trial court’s decision and every reasonable presumption is given in favor of its correctness. . . . We will reverse the trial court’s ruling only if it could not reasonably conclude as it did. . . .

“Evidence is admissible only if it is relevant. . . . Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue. . . . One fact is relevant to another if in the common course of events the existence of one, alone or with other facts, renders the existence of the other either more certain or more probable. ... It is well settled that questions of relevance are committed to the sound discretion of the trial court. ” (Citations omitted; internal quotation marks omitted.) Puchalsky v. Rappahahn, 63 Conn. App. 72, 76-77, 774 A.2d 1029, cert, denied, 256 Conn. 931, 776 A.2d 1147 (2001).

“Evidence of other similar accidents is admissible ‘to prove the existence of a particular physical condition, situation, or defect.’ C. McCormick, Evidence (3d Ed. [1984]) § 200 [p. 587]; Zheutlin v. Sperry & Hutchinson Co., 149 Conn. 364, 179 A.2d 829 (1962); Facey v. Merkle, 146 Conn. 129, 136, 148 A.2d 261 (1959); Wilkins v. G. Fox & Co., 125 Conn. 738, 7 A.2d 434 (1939). A party attempting to offer evidence of prior accidents or ‘evidence of the experience of others’ has the burden of proving ‘that the circumstances were substantially the same as those under which the plaintiff was injured, and that the use by others was substantially similar to that of the plaintiff. Wray v. Fairfield Amusement Co., 126 Conn. 221, 226, 10 A.2d 600 [1940]; Wilkins v. G. Fox & Co., Inc., [supra, 739]; Shuchat v. Stratford, 125 Conn. 566, 571, 7 A.2d 387 [1939] . . . .’ Zheutlin v. Sperry & Hutchinson Co., supra, 366-67. ‘[W]e cannot ignore completely that when a claim is made for the showing of prior accidents, an element of a trial on collateral issues, sometimes termed a trial within a trial, is introduced with [the] real possibility of undue delay.’ Kelsay v. Consolidated Rail Corporation, 749 F.2d 437, 443 (7th Cir. 1984). Moreover, ‘[e]vidence of prior occurrences will be admitted only if the proffering party first lays a sufficient foundation of “substantial similarity of conditions” between the immediate and the prior happenings.’ Marois v. Paper Converting Machine Co., 539 A.2d 621, 625 (Me. 1988). ‘The question whether the essential preliminaries have been established is for the court, and the court’s decision will not be disturbed unless there is clear and manifest error.’ Zheutlin v. Sperry & Hutchinson Co., supra, 367.” Hall v. Burns, 213 Conn. 446, 451-52, 569 A.2d 10 (1990).

Here, the court properly determined that the plaintiff had failed to lay a proper foundation to establish that Montesi’s prior accident was substantially similar to the plaintiffs accident. The plaintiff attempted to introduce the evidence of Montesi’s prior accident without having first established the circumstances under which her accident occurred. The plaintiffs argument that the court failed to admit the report after finding that it was a business record misses the mark. The court did not admit the evidence because it lacked an adequate foundation to establish that it was relevant. Without the evidence of the circumstances of the plaintiffs accident, the court was not in a position to determine whether Montesi’s accident was substantially similar to the plaintiffs. The plaintiff had the opportunity to introduce that foundation and to have Montesi’s accident report admitted as a full exhibit, but the plaintiff failed to do so. Accordingly, we conclude that the court did not abuse its discretion when it refused to admit Montesi’s accident report into evidence for lack of a proper foundation.

2

The plaintiff also claims that the court improperly excluded the testimony of Kaltenstein regarding his investigation and observation of the dumpster lid. Kaltenstein testified that the dumpster lid flipped back and rested on a metal brace. The court did not allow Kaltenstein to testify as to how the lid functioned or safety problems with the dumpster. The court further refused to allow Kaltenstein to give his opinion regarding the safety of the dumpster lid.

After our review of the record, we conclude that the court properly limited Kaltenstein’s testimony to his observations because Kaltenstein was not qualified as an expert. Connecticut Code of Evidence § 7-1 provides: “If a witness is not testifying as an expert, the witness may not testify in the form of an opinion, unless the opinion is rationally based on the perception of the witness and is helpful to a clear understanding of the testimony of the witness or the determination of a fact in issue.” Kaltenstein testified that he did not observe the plaintiffs accident. Moreover, Kaltenstein was not testifying as to any fact in issue. Instead, Kaltenstein’s proposed testimony concerned a previous incident with the dumpster. The similarity of that previous incident, however, had not been established at that point in the trial. Therefore, the court did not abuse its discretion when it excluded opinion testimony by Kaltenstein as to the unsafe condition of the dumpster.

3

The plaintiff also claims that the court improperly excluded the testimony of Grailich as to the function and safety of the dumpster. Specifically, the plaintiff attempted to introduce into evidence through Grailich five letters to Automated Waste in which it was claimed that the dumpster was unsafe. The letters were mailed pursuant to Grailich’s duties as a safety officer. Grailich testified that he did not know whether the dumpster that injured another individual was the same as the one that injured the plaintiff.

The plaintiff argues that the court improperly excluded the letters on the ground of hearsay. The defendants respond that the court properly excluded the letters because they lacked an adequate foundation.

During a hearing outside the presence of the jury, the plaintiffs counsel asked Grailich what happened after the delivery of the dumpster. The court inquired of the plaintiffs counsel regarding what evidence counsel sought to introduce through Grailich. Counsel responded: “I’m going to . . . indicate that in the course of his duties as a safety officer, it came to his attention that there was a problem relating to the dumpster lids and that he, in consequence of that, in consultation with the postmaster, he prepared a letter ... in the regular course of business, and it was his duty to prepare, and that any information that is contained in the letter [from] any other sources of which he didn’t have personal knowledge came from people who had a duty to report.”

The plaintiff sought to introduce testimony by Grailich concerning a prior incident involving another custodian, Vaughn Davis. The plaintiff also sought to introduce evidence of the incident involving the dumpster and Montesi. Grailich testified that he had discussions with the postmaster, George D. Fisher III, about improving the dumpster lids. Grailich and the postmaster came up with the idea of suggesting to Automated Waste that a chain be used to hold up the dumpster lid.

The plaintiff sought to introduce the letter that contained the suggestion for a chain along with a description of the incidents that occurred involving Montesi and Davis. Grailich testified that he prepared the letter for Fisher. Grailich further testified that he prepared the letter during the regular course of business. When asked if the letter was prepared contemporaneously with the incident, Grailich testified that he wrote it in April, 1999, several days after the incident involving Montesi.

Grailich testified that he did not know the circumstances concerning Davis’ or Montesi’s incidents involving the dumpster. Grailich conceded that no incident reports were prepared concerning either Davis’ or Montesi’s incident.

The court declined to allow what had been marked for identification as exhibit six, consisting of the April 20, 1994 letter by Fisher to Automated Waste, as a full exhibit. The court further refused to admit into evidence what had been marked for identification as exhibits seven, eight, nine and ten, which consisted of follow-up letters to Automated Waste and mentioned the previous incidents with the dumpster, as full exhibits.

In regard to exhibit six for identification, the court refused to admit the letter into evidence because the record contained no evidence as to the conditions as they existed at the time of the plaintiffs injury. The court found that the plaintiff had laid no foundation as to similarity between the incidents mentioned in the letter and the incident involving the plaintiff. The court also stated that the record did not contain evidence establishing that the dumpsters were the same in all of the incidents, and the court further stated that the relevance of the two incidents described in the letter, which took place in the spring, lacked a foundation establishing that they were relevant to the incident that took place in the fall. The plaintiff conceded that this evidence did not exist and that a foundation had not been properly laid.

The court properly determined that the letter, exhibit six for identification, lacked a foundation. Moreover, the other four letters, exhibits seven, eight, nine and ten for identification, also lacked an adequate foundation because they merely served as follow-up letters to the original letter. The court concluded that those letters did not qualify as business records pursuant to § 52-180 because they were not written contemporaneously with the incidents. We conclude that the court properly sustained the defendants’ objection to the introduction of those exhibits because they lacked a foundation.

B

The next evidentiary claim by the plaintiff is that the court improperly excluded an accident report made in the regular course of business by Claude Bannister, supervisor of customer service. We disagree.

Here, the court agreed that the report qualified as a business record for purposes of the hearsay rule. Nevertheless, the court also concluded that the report contained inadmissible opinion evidence by Bannister regarding the cause of the plaintiffs accident. Specifically, within the report, Bannister stated: “It appears that the wind caused the lid to fall.” Bannister did not observe the incident, and he was not qualified as an expert. “An opinion included within an otherwise admissible business record is admissible if the entrant would be qualified to give that opinion in oral testimony. Mucci v. LeMonte, [157 Conn. 566, 569-70, 254 A.2d 879 (1969)]; D’Amato v. Johnston, 140 Conn. 54, 58, 97 A.2d 893 (1953); C. Tait & J. LaPlante, Connecticut Evidence (2d Ed.) § 11.14.8.” River Dock & Pile, Inc. v. O & G Industries, Inc., 219 Conn. 787, 799, 595 A.2d 839 (1991). Because Bannister did not observe the accident, he was not qualified as a lay witness to give his opinion as to the cause of the accident. See id.; Conn. Code Evid. § 7-1. Therefore, we conclude that the court did not abuse its discretion when it refused to admit Bannister’s report.

C

The plaintiff next claims that the court improperly admitted the testimony of the defendant’s medical expert, James Donaldson, a physician. Counsel for Automated Waste questioned Donaldson as to whether there was any indication in the file that the plaintiffs work was restricted in any way before the incident with the dumpster lid. Donaldson responded that Grailich’s deposition contained such an indication. Counsel for the plaintiff objected on the ground that the deposition was not admitted into evidence. The court sustained the objection. Thereafter, Automated Waste’s counsel questioned Donaldson as follows: “Without reading the deposition transcript, what indications are there that [the plaintiff] had limitations or pain and restrictions in her work at any time [after] she went back to work and before the subject incident?” The plaintiffs counsel objected on the same ground, arguing that the defense counsel was attempting to get the evidence in “through the back door.” The court overruled the plaintiffs objection.

The plaintiff argues that the court should not have allowed Donaldson’s testimony into evidence without a cautionary instruction that explained to the jury that it could not consider the content of Grailich’s deposition for the truth of the statements contained therein, but only to show the basis of the expert’s opinion. The plaintiff further argues that the court’s failure to give such a limiting instruction allowed the jury to rely on hearsay, which was prejudicial to her case. The plaintiffs claim is without merit.

In addressing the admission of expert testimony, our Supreme Court recently has stated and adopted the view that “[although ‘[historically, many courts drew a sharp line between statements made to physicians consulted for purposes of treatment and those made to physicians consulted solely with the anticipation that the physician would testify in court on the declarant’s behalf . . . [t]hese restrictions were abandoned by the drafters of the Federal Rule.’ 2 C. McCormick, Evidence (4th Ed. 1992) § 278, pp. 249-50. Rule 803 (4) of the Federal Rules of Evidence ‘makes no distinction between treating and nontreating physicians, even though the latter are frequently consulted solely for the purpose of preparation for trial. A fact reliable enough to serve as the basis for a diagnosis is also reliable enough to escape hearsay proscription. To be admissible, a statement made for purposes of medical diagnosis must be one that an expert in the field would be justified in relying upon in rendering an opinion. ’ 5 J. Weinstein & M. Berger, Federal Evidence (2d Ed. 1998) § 803.09 [4], p. 803-44. ‘The general reliance upon “subjective” facts by the medical profession and the ability of its members to evaluate the accuracy of statements made to them is considered sufficient protection against contrived symptoms. . . . Under prior practice, contrived evidence was avoided at too great a cost and in substantial departure from the realities of medical practice. Rule 803 (4) eliminates any differences in the admissibility of statements made to testifying, as contrasted with treating, physicians.’ 2 C. McCormick, supra, § 278, pp. 250-51. . . .

“Our conclusion is consistent with rule 703 of the Federal Rules of Evidence ... as well as our holding in In re Barbara J., 215 Conn. 31, 42-43, 574 A.2d 203 (1990), in which we relied, in part, upon that rule. We stated: ‘The fact that an expert opinion is drawn from sources not in themselves admissible does not render the opinion inadmissible, provided the sources are fairly reliable and the witness has sufficient experience to evaluate the information. Vigliotti v. Campano, [104 Conn. 464, 133 A. 579 (1926)]; Schaefer, Jr. & Co. v. Ely, 84 Conn. 501, 508, 80 A. 775 (1911). An expert may base his opinion on facts or data not in evidence, provided they are of a type reasonably relied on by experts in the particular field. State v. Cuvelier, 175 Conn. 100, 107-108, 394 A.2d 185 (1978); see Fed. R. Evid. 703. This is so because of the sanction given by the witness’s experience and expertise. Burn v. Metropolitan Lumber Co., 94 Conn. 1, 6, 107 A. 609 (1919). C. Tait & J. LaPlante, [supra, § 7.16.8 (c)].’ ... In re Barbara J., supra, 42-43.” George v. Ericson, 250 Conn. 312, 323-25, 736 A.2d 889 (1999).

Here, the court properly determined that Donaldson’s testimony was admissible. As an expert, Donaldson could base his opinion in part on Grailich’s deposition despite the fact that it was not admitted into evidence.. Conn. Code Evid. § 7-4 (b). Therefore, we conclude that the court did not abuse its discretion by allowing Donaldson to testily about the plaintiffs condition where such testimony was based in part on knowledge acquired from Grailich’s deposition, which was not in evidence.

D

The plaintiff next claims that the court improperly refused to allow testimony regarding the malfunction of the dumpster prior to testimony as to the cause of the plaintiffs injuries. Specifically, the plaintiff argues that the court should have allowed her to present testimony in the manner chosen by her counsel and not according to whether a foundation had been laid for the presentation of the testimony. We disagree.

As we stated in part IIA 1, evidence of prior occurrences will be admitted only after the proffering party lays an adequate foundation establishing a substantial similarity of conditions between the occurrences. Hall v. Burns, supra, 213 Conn. 452. The question of whether the proffering party has laid an adequate foundation is within the discretion of the trial court, and the court’s decision will not be disturbed unless it has abused its discretion. Id. We note that the evidentiary claims raised by the plaintiff in this section of her brief are the same as those raised in part IIA 1. Here, the plaintiff argues that the court abused its discretion when it excluded evidence of the previous malfunction of the dumpster lid. For the same reasons stated in part II A 1, the court did not abuse its discretion in concluding that the plaintiff had not laid an adequate foundation.

Ill

The plaintiff claims finally that the court improperly refused to allow her to make an offer of proof. Specifically, the plaintiff claims that she attempted to make an offer of proof regarding Kaltenstein’s proffered testimony. When the plaintiffs counsel attempted to elicit the offer of proof through Kaltenstein’s testimony, outside the presence of the jury, the court stopped the plaintiffs counsel and would not allow the offer of proof to be made through Kaltenstein. The plaintiff claims that the court’s refusal to allow the offer of proof deprived her of her right to preserve the record. We disagree.

Here, the court denied the offer of proof on the basis of a lack of a foundation for the testimony. Because we already have concluded that the court did not abuse its discretion when it held that Kaltenstein could not testify as to his opinion regarding the operation of the dumpster lid, it follows that the court did not improperly preclude the plaintiff from making an offer of proof. The questions had been asked and objected to by the defendants. The court sustained the defendants’ objection. We have reviewed the record and conclude that under the facts and circumstances of this case, the court properly precluded the plaintiff from making the offer of proof.

The judgment is affirmed.

In this opinion the other judges occurred.

       The plaintiffs husband, Charles Pickel, also was a plaintiff, but he withdrew his claim prior to trial. We therefore refer in this opinion to Clara Pickel as the plaintiff.

       The plaintiff takes issue with many statements made by the court to her counsel. The statements that the plaintiff takes issue with include: “Mr. Cohen, just give your opening statement. Stop the theatrics.” “Mr. Cohen, sit down. That’s not a proper question, and you know it.” “Mr. Cohen, ask the questions without the theatrics. . . . I’m not going to tell you that again. Now, finish your cross-examination.” “No, you’re not going to use the exhibit. . . . Now, do it. Without the theatrics.” All of those statements were made in the presence of the jury. The plaintiff argues that those remarks and others made the plaintiff appear insincere, made her case look exaggerated and suggested that her case should not be believed.
      Additionally, the plaintiff claims that the following remarks, made outside the presence of the jury, exemplify the judge’s hostility toward her. In response to the plaintiffs counsel asking for a minute of time, the judge stated: “No, you can’t have a minute. Get back here and ask questions.” During argument by counsel regarding the admissibility of a certain exhibit, the court admonished the plaintiffs counsel for interrupting the court. The judge stated: “Excuse me. Once again, if there’s any further interruption, there will be a finding of contempt and there will be a fine. Understood? Is there any ambiguity in that?” On another occasion, the court stated: “No, I’m telling you [that you] have not been prepared for the last two days. That’s what I’m telling you. Listen to what I’m telling you. I’m telling [you that] you’re going to be here until five o’clock. You’re going to get these bills done and you’re going to get them done properly, and this trial is going to be conducted properly. And I’m not going to put up with any more of this chicanery. But there will be some findings that I guarantee that you won’t like.” All of the court’s references to “chicanery” claimed by the plaintiff as harmful occurred outside the presence of the jury.

       The defendants argue that the plaintiff waived her right to appellate review by not moving for disqualification of the judge or for a mistrial. Nevertheless, the plaintiff claims review under the plain error doctrine. We will review the plaintiffs claims under the plain error doctrine because “[t]he court may in the interests of justice notice plain error not brought to the attention of the trial court. . . . Practice Book § [60-5]. 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.” (Internal quotation marks omitted.) Keans v. Bocciarelli, 35 Conn. App. 239, 245 n.1, 645 A.2d 1029, cert, denied, 231 Conn. 934, 650 A.2d 172 (1994).

       On July 12, 2000, this court granted the plaintiffs motion for production of audiotapes from the trial.

       The defendants objected on the grounds of lack of a foundation and that the letters were not written contemporaneously with the incidents. The court sustained the objection. The plaintiff did not ask for an articulation of the court’s ruling.

       Connecticut Code of Evidence § 7-4 (b) provides: “The facts in the particular case upon which an expert bases an opinion may be those perceived by or made known to the expert at or before the proceeding. The facts need not be admissible in evidence if of a type customarily relied on by experts in the particular field in forming opinions on the subject. The facts relied on pursuant to this subsection are not substantive evidence, unless otherwise admissible as such evidence.”

       The plaintiff claims that the court improperly refused to admit Montesi’s testimony concerning a previous incident with the dumpster. See part IIA1.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    SACRED HEART TEACHERS’ ASSOCIATION ET AL. v. SACRED HEART HIGH SCHOOL CORPORATION ET AL.
    (AC 20515)
    Foti, Dranginis and Dupont, Js.
    Argued March 27
    officially released August 21, 2001

      Kathleen D. Stingle, for the appellants (plaintiffs).

      Jeffrey C. Pingpank, with whom was Lorinda S. Coon, for the appellees (defendants).
   Opinion

PER CURIAM.

The plaintiffs, Sacred Heart Teachers’ Association and Greater Hartford Catholic Education Association (union), appeal from the judgment of the trial court vacating an arbitration award in favor of the union. The dispute at issue arises out of the decision by the defendant Sacred Heart High School Corporation (school) not to renew the employment of Cynthia Lombardo as a full-time guidance counselor at Sacred Heart High School in Waterbury. On appeal, the union claims that the court improperly (1) found that under the collective bargaining agreement, the nonrenewal of a probationary employee was not arbitrable and vacated the arbitration award pursuant to General Statutes § 52-418 (a) (4), and (2) found that the arbitrator’s award did not conform to the submission and could not be confirmed. We affirm the judgment of the trial court.

The record discloses the following facts and procedural history. In the fall of 1996, Lombardo was hired by the school as a guidance counselor, and given probationary status pursuant to the collective bargaining agreement between the union and the defendant Office of Catholic Schools of the Archdiocese of Hartford (Archdiocese). Lombardo also entered into an individual contract, called an initial contract, with the school. Lombardo’s contract was renewed for the 1997-1998 school year. Due to budgetary problems, the school eliminated a guidance counselor position effective for the 1998-1999 school year. Lombardo, as the most junior member of the guidance staff, was laid off. On February 27, 1998, she was notified by letter that her contract would not be renewed for the 1998-1999 school year.

On May 2,1998, the union filed a grievance, claiming that Lombardo’s termination violated the seniority provision set forth in Policy I, an addendum to the collective bargaining agreement. The grievance was processed in accordance with the grievance provision of the collective bargaining agreement. The grievance went first to the principal, who denied it, and then to the superintendent of schools, who also denied the grievance. In that situation, the agreement calls for a meeting to be held. The union did not demand that a meeting be held but, rather, proceeded to arbitration.

At the February 18,1999 arbitration hearing, the Archdiocese initially challenged the arbitrability of the grievance. On April 7,1999, the arbitrator rendered an award indicating that the matter was arbitrable, and a hearing on the merits followed. The arbitrator found that the school had misapplied Policy I with respect to Lombardo. In addition, the arbitrator ordered Lombardo’s reinstatement to her former position, and payment of any salary and benefits she had lost that resulted from the nonrenewal of the contract.

The union thereafter filed an application with the court to confirm the arbitration award pursuant to General Statutes § 52-417. The Archdiocese, in turn, filed a motion to vacate the award. On January 27, 2000, the court denied the application to confirm the arbitration award and granted the motion to vacate the award. This appeal followed.

The union claims that the court improperly found that under the collective bargaining agreement, the non-renewal of a probationary employee’s contract was not arbitrable and vacated the arbitration award pursuant to § 52-418 (a) (4). We disagree.

“Whether a particular dispute is arbitrable is typically a question for the court. ... It is well established [however] that arbitration is a matter of contract and that parties may agree to have questions concerning the arbitrability of their disputes decided by a separate arbitrator. ... In apportioning, between the court and the arbitrators, the responsibility for determining which disputes are arbitrable, the language of the contract controls and determines whether the arbitrability of a dispute is for the court or the arbitrators. . . . The intention to have arbitrability determined by an arbitrator can be manifested by an express provision or through the use of broad terms to describe the scope of arbitration . . . .” (Internal quotation marks omitted.) Wallingford v. Wallingford Police Union Local 1570, 45 Conn. App. 432, 436, 696 A.2d 1030 (1997).

In the present case, the plain language of the collective bargaining agreement and Lombardo’s initial contract provides that the termination or nonrenewal of probationary employees is not subject to grievance and arbitration procedures. Lombardo was a probationary employee, employed under the teacher’s initial contract and subject to the collective bargaining agreement, and her contract was not renewed. The court, in determining whether the dispute over the decision not to renew Lombardo’s contract was arbitrable, examined the language of both the agreement and the contract. The court noted the following language from article VI, § A.2, of the collective bargaining agreement, addressing the rights of a nontenured teacher: “During the period of a Teacher’s Initial Contract, his employment shall be probationary and the Principal shall have the right to terminate such employment for sufficient reason at any time .... The teacher, however, shall have the right to appeal his dismissal or the non-renewal of his contract to the Superintendent .... The decision of the Superintendent shall be final and shall not be subject to the grievance and arbitration procedure of this Agreement or to other appeal.”

The court also noted the following language from Lombardo’s initial contract: “The teacher shall have the right to appeal such dismissal or the non-renewal of his contract to the Archdiocesan Superintendent of Schools (‘Superintendent’) by filing a written notice of appeal with the Superintendent within fifteen (15) days after notification of such dismissal or non-renewal is given to the teacher. The Superintendent will act upon such appeal within fifteen (15) days after receipt of the notice of appeal. The decision of the Superintendent shall be final and shall not be subject to the grievance procedure of the Agreement between the Office of Catholic Schools and the Association or to other appeal.”

In Metropolitan District Commission v. AFSCME, Council 4, Local 3713, 35 Conn. App. 804, 811 n.6, 647 A.2d 755 (1994), this court recognized that an arbitrator cannot find a dispute arbitrable if language in the contract indicates that it is not. Furthermore, in White v. Kampner, 229 Conn. 465, 641 A.2d 1381 (1994), our Supreme Court stated: “We initially note that, because we favor arbitration, we will defer to this alternative method of dispute resolution if the contractual arbitration provisions fall within the grey area of arbitrability, employing the ‘positive assurance’ test as set out in United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582-83, 80 S. Ct. 1347, 4 L. Ed. 2d 1409 (1960). Under this test, judicial inquiry . . . must be strictly confined to the question whether the reluctant party did agree to arbitrate the grievance . ... An order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute.” (Internal quotation marks omitted.) White v. Kampner, supra, 472-73.

We conclude that the relevant sections of the collective bargaining agreement and Lombardo’s initial contract could not reasonably have been given any other interpretation than to exclude the nonrenewal of probationary employees’ contracts from arbitration. We agree with the well reasoned analysis of the court in its ruling that “ [i]n the instant case the arbitrator was only authorized to decide if the school misinterpreted or misapplied the provisions of Policy I of the agreement. ... In article VI, § A.2, of the agreement the nonrenewal of the contract of a probationary teacher such as Ms. Lombardo may be appealed to the superintendent. . . . [The agreement] makes [it] quite clear that there is no arbitration permitted for Ms. Lombardo under Policy I. In addition, the teacher’s initial contract . . . says that it may be terminated by the school acting through the principal for sufficient reason at any time. There is a right of appeal to the superintendent, whose decision shall be final and shall not be subject to the grievance procedure of the agreement. ... In examining any contract, the court must determine the intent of the parties. The parties here had no intent to arbitrate this issue.” We therefore agree with the court that the arbitrator’s award should be vacated on that ground.

The judgment is affirmed.

       Lombardo is a member of the union.

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

       The nonrenewal of Lombardo’s employment and that of others by the school was precipitated by budgetary considerations, but was made in light of new hires, the creation of new, full-time positions and the addition of newly created courses to provide full-time employment for teachers whose status otherwise would have been reduced to part time. At the arbitration hearing, the school presented evidence that there had been a series of net losses in preceding years such that its cumulative debt was more than $500,000 and that 85 percent of its budget was personnel expenditure.

       The letter to Lombardo stated in relevant part: “Under the proposed budget for the school year 1998-99 your present Guidance position is being eliminated, and you will not be offered a contract for the 1998/99 school year.”

       We will not review the plaintiffs second claim that the court improperly found that the arbitration award exceeded the scope of the submission because the first issue is dispositive of the appeal.


author: DRANGINIS, J.

text:
    KRISTINE PINCHBECK v. DEPARTMENT OF PUBLIC HEALTH ET AL.
    (AC 20125)
    Dranginis, Flynn and O’Connell, Js.
    Argued April 2
    officially released August 21, 2001

      Thomas E. Crosby, for the appellant (plaintiff).

      Marianne I. Horn, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Richard J. Lynch, assistant attorney general, for the appellees (defendant department of public health et al.).

      Marjorie F. Shansky, for the appellees (defendant Gary Friedlaender et al.).
   Opinion

DRANGINIS, J.

The plaintiff, Kristine Pinchbeck, appeals from the trial court’s judgment dismissing her action for a declaratory judgment, which she brought following the denial by the defendant department of public health (department) of her request for intervenor status in the department’s evaluation and approval of a sewage disposal system that had been proposed by the defendants Gary Friedlaender and Linda Friedlaender (Friedlaenders). On appeal, the plaintiff claims that the court improperly (1) determined that she lacked standing to bring a declaratory judgment action pursuant to General Statutes § 4-175 and (2) concluded that it lacked jurisdiction over the case despite an earlier, contrary ruling. We disagree and affirm the judgment of the trial court.

The applicable facts and procedural history are undisputed. The plaintiff owns real property abutting the real property of the Friedlaenders. The Friedlaenders wanted to build an addition to their existing one story structure. Pursuant to regulations promulgated by the department; see Regs., Conn. State Agencies, §§ 19-13-B103d and 19-13-B103e; the Friedlaenders were required to submit to the local director of health an application for approval of their proposed subsurface sewage disposal system to assure compliance with the state Public Health Code upon completion of the addition. On January 8, 1998, the local director of health submitted the Friedlaenders’ proposed plan to the department for review for compliance with the Public Health Code. On May 11, 1998, Arthur J. Castellazzo, a senior sanitary engineer with the department, recommended approval of the Friedlaenders’ proposed plan with certain modifications.

On May 20, 1998, the plaintiff requested an administrative review of or appeal from the department’s recommendation. The department, through Thomas Furgalack, director of the environmental health division, indicated that no process for internal review existed because the state merely gave an advisory opinion to the local health board. Accordingly, the department denied the plaintiff’s request for an administrative review of or appeal from the recommendation that the Friedlaenders’ application be approved. The plaintiff then requested that the department grant her intervenor status and issue a declaratory ruling, pursuant to General Statutes § 4-176, that the department’s approval of the Friedlaenders’ application be declared invalid. The department denied the plaintiffs request by letter dated August 3,1998. A supplemental letter of denial provided detailed reasons for the denial.

On August 21,1998, the plaintiff initiated the present action, asking the court to declare void the department’s denial of her request for intervenor status and its recommended approval of the Friedlaenders’ proposed plan with certain modifications. On November 6, 1998, the department filed a motion to dismiss on the basis that the plaintiff, as an abutting property owner, was not aggrieved by any action taken by the agency and that the court lacked subject matter jurisdiction. On December 14, 1998, the court denied the motion.

On May 21, 1999, the Friedlaenders filed a motion to strike the complaint for failure to state a claim, arguing that the plaintiffs declaratory judgment action was an improper attempt to disguise an administrative appeal as a declaratory judgment action. On May 24, 1999, the department and the defendant commissioner of public health, Stephen A. Harriman, also filed a motion to strike the complaint on the same grounds that were alleged by the Friedlaenders. On September 28, 1999, the court rendered judgment dismissing the complaint and stated in its memorandum of decision: “[The plaintiff] lacks standing to seek a declaratory judgment pursuant to § 4-175. The plaintiffs action is dismissed.” This appeal followed.

I

The plaintiff first claims that the court improperly ruled that she lacked standing to seek a declaratory judgment pursuant to § 4-175 and that the court therefore lacked subject matter jurisdiction.

Because a determination regarding a trial court’s subject matter jurisdiction presents a question of law, our review of the plaintiffs claim is plenary. Lawrence Brunoli, Inc. v. Branford, 247 Conn. 407, 410, 722 A.2d 271 (1999).

We now turn to the plaintiffs claim that the court improperly determined that she lacked standing to bring a declaratory action. “It is a basic principle of our law . . . that the [plaintiff] must have standing in order for a court to have jurisdiction to render a declaratory judgment.” (Internal quotation marks omitted.) Connecticut Assn. of Health Care Facilities, Inc. v. Worrell, 199 Conn. 609, 613, 508 A.2d 743 (1986). “Standing is not a technical rule intended to keep aggrieved parties out of court; nor is it a test of substantive rights. Rather it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented. . . . Thus, standing does not hinge on whether the plaintiff will ultimately be entitled to obtain relief on the merits of an action, but on whether he is entitled to seek the relief.” (Internal quotation marks omitted.) Lewis v. Swan, 49 Conn. App. 669, 675, 716 A.2d 127 (1998); see also Gay & Lesbian Law Students Assn. v. Board of Trustees, 236 Conn. 453, 463, 673 A.2d 484 (1996).

“[W]here a statute or court rule sets prerequisites to suit by a particular plaintiff, a plaintiff not meeting the statutory criteria lacks standing and the court is said to lack jurisdiction over the case.” Novicki v. New Haven, 47 Conn. App. 734, 739, 709 A.2d 2 (1998). “Standing is established by showing that the party claiming it is authorized by statute to bring suit or is classically aggrieved.” Steeneck v. University of Bridgeport, 235 Conn. 572, 579, 668 A.2d 688 (1995).

The court stated in its memorandum of decision: “The plaintiffs action is expressly brought pursuant to § 4-175. The issue then is whether the plaintiff is entitled to seek the relief authorized by the statute. Standing is not conferred upon a plaintiff merely by virtue of the fact that the complaint recites the provisions of the statute under which it is brought. . . . Rather, a complaint brought pursuant to § 4-175 must set forth facts to support an inference that a provision of the general statutes, a regulation or a final decision, or its threatened application, interferes with or impairs, or threatens to interfere with or impair, the legal rights or privileges of the plaintiff. ... In the absence of compliance with the authorizing statute, the plaintiff lacks standing. . . . The complaint in the present action is devoid of any allegation that any statute, regulation or final decision of the agency, or its threatened application, has interfered with or impaired, or threatens to interfere with or impair, the legal rights of the plaintiff.” (Citations omitted; internal quotation marks omitted.)

We conclude that the court correctly found that the plaintiff lacked standing and, therefore, the court lacked subject matter jurisdiction over the action. General Statutes § 4-175 does not authorize the plaintiff to bring an action. The plaintiffs requested relief demonstrated her lack of standing. She did not ask the court to decide whether a regulation is valid or whether a regulation, statute or decision applied to the facts of this case. Rather, she asked that the court overrule the determination by the department’s subsurface sewage experts that the Friedlaenders’ septic system may be installed provided they meet five modifications set out in the recommended approval. We conclude, therefore, that the court properly determined that such relief was not available under § 4-175.

II

The plaintiff further claims that the court improperly determined that it lacked subject matter jurisdiction despite an earlier, contrary ruling by another trial court and without holding an evidentiary hearing. We disagree.

The following additional facts are necessary to our resolution of the plaintiffs claim. On November 6,1998, the department filed a motion to dismiss, claiming that the plaintiff was not aggrieved by the agency’s action and that there was no final decision by the agency as required by § 4-175. On December 14, 1998, the court denied the motion to dismiss. On May 21 and 24, 1999, the defendants filed motions to strike, claiming that the plaintiffs complaint did not comply with the requirements of Practice Book §§ 17-54 and 17-55, and that it failed to state a claim upon which relief could be granted. On September 28, 1999, the court dismissed the complaint, ruling that the plaintiff lacked standing to seek a declaratory judgment under § 4-175, which thus deprived the court of subject matter jurisdiction.

A

The plaintiff argues on appeal that the law of the case doctrine bound the court to adhere to an earlier ruling in which another trial court refused to grant the department’s motion to dismiss. That claim is without merit. This court has held that when the jurisdiction of the trial court is implicated, an adjudicator is not bound by the law of the case doctrine, but should consider independently the issue of jurisdiction. Westbrook v. Savin Rock Condominiums Assn., Inc., 50 Conn. App. 236, 240, 717 A.2d 789 (1998). “The law of the case is not written in stone but is a flexible principle of many facets adaptable to the exigencies of the different situations in which it may be invoked.” (Internal quotation marks omitted.) Id.

It is axiomatic that if the court lacks subject matter jurisdiction, it is without power to hear the matter before it. Therefore, the court must determine the jurisdictional issue “before it can move one further step in the cause; as any movement is necessarily the exercise of jurisdiction.” (Internal quotation marks omitted.) Blakeney v. Commissioner of Correction, 47 Conn. App. 568, 572, 706 A.2d 989, cert, denied, 244 Conn. 913, 713 A.2d 830 (1998). We conclude that the court had the authority to determine the defendants’ motions to strike, notwithstanding the contrary ruling of another judge in the case.

B

The plaintiff also argues that the court improperly ruled on the motions to strike without allowing her an evidentiary hearing. The plaintiff claims that due process demands an evidentiary hearing. That claim also is without merit.

In determining whether a complaint is subject to dismissal for lack of jurisdiction, “a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader.” Pamela B. v. Ment, 244 Conn. 296, 308, 709 A.2d 1089 (1998).

“Inquiry into whether particular procedures are constitutionally mandated in a given instance requires adherence to the principle that due process is flexible and calls for such procedural protections as the particular situation demands. Morrissey v. Brewer, 408 U.S. 471, 481, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972). There is no per se rule that an evidentiary hearing is required whenever a liberty interest may be affected. Due process ... is not a technical conception with a fixed content unrelated to time, place and circumstances. . . . Ingraham v. Wright, 430 U.S. 651, 675, 97 S. Ct. 1401, 51 L. Ed. 2d 711 (1977).” (Internal quotation marks omitted.) State v. Lopez, 235 Conn. 487, 492-93, 668 A.2d 360 (1995).

We conclude that there was no reason for the court to conduct a separate evidentiary hearing to address the jurisdictional issue. In the absence of any disputed facts pertaining to jurisdiction, a court is not obligated to hold an evidentiary hearing before dismissing an action for lack of jurisdiction. Amore v. Frankel, 228 Conn. 358, 369, 636 A.2d 786 (1994). Although she claimed that she should have been allowed to present further evidence in support of her claim that she had standing, the plaintiff fails to identify any specific issue of fact in dispute that would have affected the court’s determination that it lacked jurisdiction. Indeed, given the court’s conclusion that the complaint did not properly invoke § 4-175, any additional testimony regarding the plaintiffs claim of potential harm from her neighbors’ proposed septic system would not have rehabilitated what was, from its inception, a fatally flawed attempt by the plaintiff to avail herself of that statute.

Furthermore, the plaintiff had an opportunity, when arguing the motion to dismiss, to submit a brief and oral argument on the issue of standing. The court reviewed that brief and the transcript of the hearing on the motion to dismiss before determining that it lacked jurisdiction. Finally, at the hearing on the motions to strike, the court raised its concern about standing and heard argument on that issue. We conclude, therefore, that the plaintiff was heard on the jurisdictional issue within due process standards and that her claim is without merit.

The judgment is affirmed.

In this opinion the other judges concurred.

       Pinchbeck died on September 2, 2000, while this appeal was pending. Her claim is continued by her husband, William Pinchbeck, the executor of her estate, whose motion to be substituted as the plaintiff was granted by this court. For purposes of this opinion, however, references to the plaintiff are to Kristine Pinchbeck.

       In her complaint, the plaintiff named as defendants the department of public health, the department’s then commissioner, Stephen A. Harriman, and Gary Friedlaender and Linda Friedlaender.

       General Statutes § 4-175 (a) provides: “If a provision of the general statutes, a regulation or a final decision, or its threatened application, interferes with or impairs, or threatens to interfere with or impair, the legal rights or privileges of the plaintiff and if an agency (1) does not take an action required by subdivision (1), (2) or (3) of subsection (e) of section 4-176, within sixty days of the filing of a petition for a declaratory ruling, (2) decides not to issue a declaratory ruling under subdivision (4) or (5) of subsection (e) of said section 4-176, or (3) is deemed to have decided not to issue a declaratory ruling under subsection (i) of said section 4-176, the petitioner may seek in the Superior Court a declaratory judgment as to the validity of the regulation in question or the applicability of the provision of the general statutes, the regulation or the final decision in question to specified circumstances. The agency shall be made a party to the action.”


text:
    RONALD LABOW v. MYRNA LABOW
    (AC 19762)
    Schaller, Mihalakos and Hennessy, Js.
    Submitted on briefs March 2
    officially released August 21, 2001

      Myma LaBow, pro se, the appellant (defendant), filed a brief.

      Daniel D. Portanova and Gwen E. Murray filed a brief for the appellee (plaintiff).
   Opinion

PER CURIAM.

The defendant, Myma LaBow, appeals from the judgment of the trial court rendered in her favor on her counterclaim to an action commenced by the plaintiff, Ronald LaBow. On appeal, the defendant challenges the court’s conclusion that she proved only one of her five causes of action. She also challenges the court’s determination of damages. In her brief to this court, she raises no fewer than fifty-one claims, challenging the court’s assessment of the evidence. We affirm the judgment of the trial court.

This case stems from a 1982 action commenced by the plaintiff as a collateral attack against a 1978 dissolution judgment dissolving the parties’ marriage. Since that dissolution judgment, the parties have engaged in extensive, hostile litigation in the trial and appellate courts of our state and New York for more than twenty years. In 1993, following a brief respite, the torrent of litigation continued, resulting in the judgment on the counterclaim from which this appeal is taken.

This appeal is best categorized as a futile effort to retry this case in this court. No good purpose would be served by discussing seriatim its numerous claims. The defendant’s myriad claims constitute a rambling, convoluted, hodgepodge of grievances. “[Ajppellate pursuit of so large a number of issues forecloses the opportunity for a fully reasoned discussion of pivotal substantive concerns [by the appellant], A shotgun approach does a disservice both to this court and to the party on whose behalf it is presented.” (Internal quotation marks omitted.) Willow Springs Condominium, Assn., Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 21, 717 A.2d 77 (1998). Naturally, an appellate court “is habitually receptive to the suggestion that a lower court committed an error. But receptiveness declines as the number of assigned errors increases. Multiplicity hints at lack of confidence in any one [issue] . . . .” (Internal quotation marks omitted.) State v. Raguseo, 225 Conn. 114, 117 n.3, 622 A.2d 519 (1993).

After thoroughly examining each of the defendant’s claims, we conclude that they consist merely of abstract assertions unaccompanied by reasoned legal analysis. Therefore, her claims are deemed abandoned, and further review is denied. See Velazquez v. Marine Midland Automotive Financial Corp., 24 Conn. App. 455, 460 n.2, 590 A.2d 116 (1991).

The judgment is affirmed.


author: LAVERY, C. J.

text:
    STATE OF CONNECTICUT v. ALEXANDER AMANYO NIEVES
    (AC 20573)
    Lavery, C. J., and Foti and Daly, Js.
    Argued May 30
    officially released August 21, 2001

      Frank P. Cannatelli, for the appellant (defendant).

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

LAVERY, C. J.

The defendant, Alexander Amanyo Nieves, appeals from the judgments of conviction, rendered after his conditional pleas of nolo contendere, of five counts of burglary in the third degree in violation of General Statutes § SSa-ldS. On appeal, the defendant claims that the court improperly denied his motions to suppress items seized from a vehicle and one paragraph of a three page statement that he gave to the state police. We affirm the judgments of the trial court.

The following facts and procedural history are relevant to this appeal. At approximately 3:30 a.m. on June 8, 1997, Trooper Robert Lombardo of the state police was dispatched to a house in Stafford on a report that the defendant had threatened to shoot his girlfriend and himself. When Lombardo arrived, a witness told him that the defendant had fled into a nearby wooded area. Additional troopers were called, the perimeter of the area was secured and a K-9 unit was deployed. The search ended unsuccessfully at approximately 6:30 a.m.

At that time, Lombardo was assigned to take witness statements and to determine the identity of the owner of the vehicle that the defendant had left at the house. While looking in the passenger side window to obtain the vehicle identification number and registration, he saw several car radios and compact disc players on the backseat and floor. The items had wires hanging out of them, consistent with their having been removed from motor vehicles. Lombardo also saw that one of the radios had the same brand name as one that he had learned before his work shift began the previous evening had been reported stolen. Believing the items in the vehicle to be stolen, Lombardo seized them from the unlocked car.

At approximately the same time as the search ended, Trooper James Reidy of the state police was directed to the Stafford location and advised of the situation. When Reidy arrived, a male came out of the house and pointed toward a wooded area. Reidy looked in that direction and saw someone running around a parked camping trailer. Reidy and Trooper Michael Foley of the state police entered the trailer with a key obtained from the owner and found the defendant under a bed. The defendant was arrested. No weapon was found.

Shortly after the arrest, the defendant was read his Miranda rights, which he appeared to understand. At the state police barracks, Reidy again advised the defendant of his rights and reviewed the waiver of rights form, which the defendant read aloud and initialed in the appropriate places. The defendant then read the warning at the top of the statement form and gave an oral statement to Reidy, who transcribed it. The defendant read the statement, including admissions regarding the theft of the items in the car, and signed the bottom of each of the three pages.

At a pretrial suppression hearing, the defendant claimed that Lombardo illegally had seized the electronic equipment because it had been in the trunk of the car, not in the passenger compartment as Lombardo testified. The defendant also claimed that although he “voluntarily” had signed all three pages of his statement, the paragraph with information regarding the theft of the radios was added after he signed it. The court credited the troopers’ contrary testimony on both claims and denied the motions to suppress on October 29, 1999. The defendant pleaded nolo contendere to all counts on November 30, 1999, conditioned on the right to appeal from the denial of his motions. He received a total effective sentence of seven and one-half years incarceration. Additional facts will be provided as necessaiy.

I

The defendant first claims that the court improperly found that the seizure of the electronic equipment did not violate his rights under the fourth amendment to the United States constitution. The defendant does not challenge the court’s ruling that pursuant to the automobile exception to the fourth amendment’s warrant requirement, the officers had the right to search the automobile. He instead attacks the court’s factual finding that the electronic equipment was in plain view, arguing that it was actually in the trunk. We disagree that the finding was clearly erroneous.

“On appeal, we apply a familiar standard of review to a trial court’s findings and conclusions in connection with a motion to suppress. A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record .... The conclusions drawn by the trial court will be upheld unless they are legally and logically inconsistent with the evidence. . . . [W]e engage in a careful examination of the record to ensure that the court’s decision was supported by substantial evidence.” (Internal quotation marks omitted.) State v. Fletcher, 63 Conn. App. 476, 479, 777 A.2d 691, cert, denied, 257 Conn. 902, 776 A.2d 1152 (2001), quoting State v. Trine, 236 Conn. 216, 225, 673 A.2d 1098 (1996); Practice Book § 60-5. We give great deference to the findings of the trial court because it weighs the evidence before it and assesses the credibility of witnesses. See State v. Clark, 255 Conn. 268, 280, 764 A.2d 1251 (2001).

As we noted in State v. Sailor, 33 Conn. App. 409, 635 A.2d 1237, cert, denied, 229 Conn. 911, 642 A.2d 1208 (1994), “ [t]he plain view doctrine is based upon the premise that the police need not ignore incriminating evidence in plain view while . . . entitled to be in a position to view the items seized.” (Internal quotation marks omitted.) Id., 414. Our Supreme Court recently stated in State v. Eady, 249 Conn. 431, 733 A.2d 112, cert, denied, 528 U.S. 1030, 120 S. Ct. 551, 145 L. Ed. 2d 428 (1999), that warrantless seizures of contraband in plain view are reasonable under the fourth amendment if “(1) the initial intrusion that enabled the police to view the items seized [was] lawful; and (2) the police . . . had probable cause to believe that these items were contraband or stolen goods.” (Internal quotation marks omitted.) Id., 437.

In addition to calling attention to his own testimony regarding the equipment’s placement, the defendant makes much of the fact that other state troopers went through the vehicle prior to Lombardo. He notes that Nilda Markowitz, his girlfriend, testified that she saw state troopers conducting an initial search of the entire car, including the trunk, at approximately 4 a.m. Lombardo also testified that the vehicle had been secured by other officers before he looked into the passenger window for the vehicle identification number.

The defendant hypothesizes that if the electronic equipment were in the car at the time it was secured, state troopers would have seized or inventoried it at that time. Because they did not, he argues, it could not have been in the passenger compartment.

The defendant’s argument is untenable. His own witness testified that the troopers originally looked through both the passenger compartment and the trunk. Following the defendant’s reasoning, the equipment could not have been in either location because the police would have immediately seized or inventoried it. That logic runs counter to the defendant’s admission that the equipment was in the trunk.

This is primarily a question of credibility. The court credited Lombardo, who testified that nothing was found in or seized from the trunk. It further reasoned that it was logical to infer that the state troopers in the earlier search were eliminating the possibility that the defendant was hiding in the car rather than looking for stolen items. The court’s finding is not clearly erroneous.

II

The defendant next claims that the court improperly found that his statement was voluntary and did not violate the fifth amendment to the United States constitution. We disagree.

The test for voluntariness is whether an examination of all the circumstances shows that law enforcement officials “overbear [the defendant’s] will to resist and bring about confessions not freely self-determined .... The ultimate test remains .... Is the confession the product of an essentially free and unconstrained choice by its maker? . . . [I]f his will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process.” (Internal quotation marks omitted.) State v. Hafford, 252 Conn. 274, 299, 746 A.2d 150, cert, denied, 531 U.S. 855, 121 S. Ct. 136, 148 L. Ed. 2d 89 (2000), citing Schneckloth v. Bustamonte, 412 U.S. 218, 225, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973). The voluntariness of a confession is viewed independently on the basis of a “scrupulous examination of the record.” (Internal quotation marks omitted.) State v. Hafford, supra, 299, citing State v. Pinder, 250 Conn. 385, 420, 736 A.2d 857 (1999).

The defendant challenges the court’s factual finding that the paragraph that starts on the bottom of the second page of his written statement and continues on the top of the third page was a part of his original statement and was not added later, as he claimed. The defendant argues that even if he did agree that the first four lines of the third page of the confession were there properly, there is no reason for the state trooper to have written, “What I have said is the truth,” two thirds of the way down the page without placing a line through the intervening blank section to foreclose the possibility that information could be added after the defendant signed the page. The defendant conjectures that the “only reason a lay person would find [for the trooper to leave the space blank] is to add something at a later time.” Because Reidy did not testify as to why he left blank lines and because, as the defendant claims, he “should have known better,” the defendant argues that he should be given “the benefit of the doubt” in Reidy’s testimony as to that issue. He suggests that we remand this case for a determination of this issue or whether the confession was voluntary under the totality of the circumstances.

The state counters that the court’s finding that Reidy did not fabricate any part of the defendant’s statement was not clearly erroneous. The state first relies on Reidy’s direct testimony regarding the mechanics of the taking of the statement, and the defendant’s review and signature of it. Second, on cross-examination, Reidy testified that although the disputed paragraph was not in chronological order, people remember events at different times, and the statement accurately represents what the defendant told him. As this issue involves a matter of credibility, the state correctly argues that the court was free to accept Reidy’s testimony and reject the defendant’s testimony in its entirety.

The state notes that the defendant did not cross-examine Reidy regarding the blank lines. It further argues that there is no legal support for either the defendant’s claim that the court must make a determination as to that issue before ruling on credibility or his claim that police should place a line through the blank portions.

The court properly credited the state troopers’ testimony. It credited Reidy’s testimony that he transcribed the entire statement exactly as the defendant told it to him and found that it contained the defendant’s allegation that he was beaten by state troopers in the trailer. The court also credited Reidy’s testimony that the defendant understood English and came to the same conclusion at the hearing. The defendant admitted at the hearing that he is familiar with postarrest police procedures as a result of his eighteen previous arrests, and had alternatively given statements to police and refused to do so in the past. In this instance, the defendant testified that he “voluntarily” gave a written statement to Reidy when requested to do so, but that he thought that he would be beaten again if he did not. He testified that no one threatened him with violence or any harm if he did not give a statement.

We conclude that it was not clearly erroneous for the court not to credit the defendant’s testimony that he voluntarily signed a nearly blank third page of his statement to police.

The judgments are affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-103 provides: “(a) A person is guilty of burglary in the third degree when he enters or remains unlawfully in a building with intent to commit a crime therein.
      “(b) Burglary in the third degree is a Class D felony.”

        Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

       That paragraph roads as follows: “I earlier called my girl from Roaring Brook Campground and told her that I had a gun and was thinking about committing suicide if she didn’t talk to me in person. I also freely admit that I stole [unreadable] Alpine radio and 3 CB radios out of 4 or 5 trucks that were parked at a garage on Rt. 190 between the Boro and Roaring Brook Campground. I can’t remember if I took the radios before or after I went to Roaring Brook Campground.”

       The fourth amendment to the United States constitution provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
      In his statement of the issues, the defendant claims that the court improperly concluded that the searches also did not violate the fifth amendment to the United States constitution or the constitution of Connecticut, article first, §§ 7 and 8. He briefed only the fourth amendment claim. Issues not briefed are deemed waived. Czarnecki v. Plastics Liquidating Co., 179 Conn. 261, 262 n.1, 425 A.2d 1289 (1979). This court also declines to review inadequately briefed issues. State v. Wragg, 61 Conn. App. 394, 395 n.1, 764 A.2d 216 (2001).

       The defendant concedes that the police had justification to search the automobile under any of three exceptions to the warrant requirement: Plain view, exigent circumstances or an inventory search.

       A possible third scenario under Coolidge v. New Hampshire, 403 U.S. 443, 466, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971), for a reasonable, warrantless seizure, i.e., that the discovery be inadvertent, does not apply if the items seized are contraband, stolen property or objects dangerous in themselves. State v. Eady, supra, 249 Conn. 437 n.7, citing State v. Couture, 194 Conn. 530, 547, 482 A.2d 300 (1984), cert, denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985).

       The defendant also hypothesizes that “the officers who secured the vehicle and did not testify probably already did a [vehicle identification number] check

       The fifth amendment to the United States constitution provides in relevant part: “No person . . . shall be compelled in any criminal case to be a witness against himself . . . .”
      As with his seizure argument, the defendant in his statement of the issues claims that the court improperly refused to hold that the confession also violated the fourth amendment to the United States constitution, as well as the constitution of Connecticut, article first, §§ 7 and 8. He briefs only the fifth amendment claim. For the reasons previously stated; see footnote 4; we decline to review those inadequately briefed issues. See State v. Wragg, supra, 61 Conn. App. 395 n.l.

       In his brief, the defendant restated several allegations that officers physically abused him immediately following his arrest and that he was in an alcohol and drug induced blackout on the early morning of June 8, 1997. The court instead credited the state troopers’ testimony that they neither smelled alcohol on the defendant’s breach nor believed him to be under its influence. The defendant does not explicitly raise those incidents as factors that would have contributed to the involuntary nature of his confession.


text:
    PATRICIA STOSUY v. CITY OF STAMFORD
    (AC 21164)
    Lavery, C. J., and Dranginis and O’Connell, Js.
    Submitted on briefs June 13
    officially released August 21, 2001

      Daniel H. Kryzanski filed a brief for the appellant (plaintiff).

      Barry J. Boodman, assistant corporation counsel, and Andrew J. McDonald, director of legal affairs, filed a brief for the appellee (defendant).
   Opinion

PER CURIAM.

The plaintiff, Patricia Stosuy, appeals from the judgment of the trial court rendered after it granted the motion for summary judgment filed by the defendant, the city of Stamford. Although the court rendered judgment as to counts three, four and five of her complaint, the plaintiff on appeal challenges the judgment only as to counts three and four. On appeal, the plaintiff claims that the court improperly (1) granted the motion as to her claims for breach of contract and for breach of the implied covenant of good faith and fair dealing on the ground that she had not filed a claim of breach of the duty of fair representation against her union, and (2) disregarded her position that she had exhausted her administrative remedies under her collective bargaining agreement. We affirm the judgment of the trial court.

The following facts are undisputed. The plaintiff applied for the position of assistant town clerk of the city of Stamford. The defendant’s human resources department denied her application, and the plaintiff appealed to the defendant’s personnel commission. After the personnel commission denied the appeal, the plaintiff filed a grievance with her union. Her union declined to represent her in the matter.

The plaintiff claims that the court improperly granted the defendant’s motion for summary judgment as to her claims of breach of contract and breach of the implied covenant of good faith and fair dealing. She argues that a union employee is not required to make a claim against her union alleging breach of its duty of fair representation before the employee can proceed with a breach of contract claim against her employer if she has made an attempt to exhaust remedies under the collective bargaining agreement. We disagree.

“In reviewing a trial court’s ruling on a motion for summary judgment when the material facts are undisputed, we must decide whether the trial court erred in concluding that the moving party was entitled to judgment as a matter of law. . . . [0]ur review of the ruling of the trial court is plenary, and we must determine whether the trial court’s conclusions are legally and logically correct and find support in the facts appearing in the record.” (Internal quotation marks omitted.) Burnham v. Karl & Gelb, P.C., 252 Conn. 153, 156-57, 745 A.2d 178 (2000).

“Ordinarily a court may entertain a suit by an individual employee to enforce the terms of a collective bargaining agreement only if the agreement so provides. . . . An employee does, however, have standing to enforce the terms of a collective bargaining agreement if the employee claims that the union has breached its duty of fair representation.” (Citation omitted.) Labbe v. Hartford Pension Commission, 239 Conn. 168, 182, 682 A.2d 490 (1996). “Where the collective bargaining agreement permits only the union to take a grievance to arbitration, the employee has no further remedy unless he can prove that the union breached its duty of fair representation by acting arbitrarily, maliciously, or in bad faith.” Saccardi v. Board of Education, 45 Conn. App. 712, 722, 697 A.2d 716 (1997).

The plaintiff brought her action directly against the defendant for breach of contract and for breach of the implied covenant of good faith and fair dealing on the basis of her collective bargaining agreement. The agreement does not provide for such actions, and she did not bring a claim against her union alleging a breach of its duty of fair representation. Therefore, the court properly concluded that she lacked standing and that the defendant was entitled to judgment as a matter of law.

The judgment is affirmed.

       The plaintiff does not appeal from the judgment as to count five. The court previously had granted the defendant’s motion to strike counts one and two, and the plaintiff did not replead as to those counts.

       Practice Book § 17-49 provides in relevant part 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.”