author: Borden, J.

text:
    Thomas P. Finley v. Aetna Life and Casualty Company
    (2599)
    Hull, Borden and Spallone, Js.

      Argued June 13
    decision released October 1, 1985

      Robert W. Heagney, with whom were Thomas C. Austin, Jr., Ronald Sherlock and, on the brief, Mark Rademacher, for the appellant (plaintiff).

      Albert Zakarian, with whom, on the brief, were Felix J. Springer and James Sicilian, for the appellee (defendant).
   Borden, J.

This appeal raises three issues involving employment contracts for an indefinite period: (1) whether the statute of frauds applies to this type of contract, precluding the use of evidence of oral promises made by the employer to the employee; (2) the extent to which statements contained in an employer’s personnel manual can be the basis for a finding that a contract exists between employer and employee altering the traditional at will employment relationship; and (3) the extent to which a cause of action exists, based on the theory of promissory estoppel, binding the employer to promises on which the employee relied.

The plaintiff, an employee of the defendant for twenty-four years, brought suit alleging wrongful discharge after his employment was terminated following a feud among personnel in the plaintiff’s department. The complaint was in three counts. The first count alleged that the defendant had breached an express contract which it had made with the plaintiff, in oral and written statements, that the defendant would only terminate the plaintiff’s employment for just cause. The second count repeated some of the language of the first count, but also alleged that, by virtue of promises made by the defendant to the plaintiff on which the defendant intended the plaintiff to rely and on which the plaintiff did rely to his detriment, an agreement was created that the plaintiff would be terminated only for just cause, and that this agreement was breached. The third count alleged that the defendant had breached an implied covenant of good faith and fair dealing in the employment contract between the parties.

The court granted the defendant’s motion for a directed verdict on the second and third counts, and submitted the first count to the jury. The jury returned a verdict for the defendant. The plaintiff moved to set aside the verdict and for a new trial, requesting only that the court reverse its rulings on the second and third counts. The motion was denied. The court, in its memorandum of decision in response to the plaintiff’s motion, stated that the second and third counts did not state causes of action and, furthermore, that there was insufficient evidence presented on those counts to submit them to the jury. The plaintiff appealed, claiming error in the court’s charge to the jury on the first count, and in the direction of a verdict on the second count.

We first dispose of the defendant’s claim, raised in its preliminary statement of issues; Practice Book § 3012 (a); that the general verdict rule precludes consideration of the plaintiff’s claims of error. The argument is essentially as follows: Each of the counts involved in this appeal has two issues, namely, whether a contract existed and whether the plaintiff was terminated for just cause. All of the plaintiff’s claims of error relate solely to the issue of whether a contract existed and not to the issue of whether the plaintiff was terminated for just cause. Since the verdict for the defendant must be interpreted as including a finding for the defendant on the second issue, namely, that the plaintiff was terminated for just cause, the failure of the plaintiff to challenge this finding permits the verdict to stand even if the plaintiff’s claims on the first issue have merit. We find this claim unpersuasive.

The general verdict rule operates to a plaintiff’s detriment where there is more than one count in a complaint; Goodman v. Metallic Ladder Mfg. Corporation, 181 Conn. 62, 64-66, 434 A.2d 324 (1980); and where there is a complaint and one or more special defenses. Stone v. Bastarache, 188 Conn. 201, 204-205, 449 A.2d 142 (1982). Where, however, error is claimed “in submitting to the jury one of the specifications relating to [a] cause of action, a general verdict will not cure the error”; Novak v. Anderson, 178 Conn. 506, 508, 423 A.2d 147 (1979); or preclude this court from reviewing the error claimed. We turn, therefore, to the plaintiff’s claims of error.

The plaintiff’s first two claims of error arise from the charge to the jury on the first count of the complaint. Because these claims were not raised in the plaintiff’s motion to set aside the verdict and for a new trial, our scope of review of these claims is limited to the plain error standard. Practice Book § 3063; DeLorenzo v. Great Atlantic & Pacific Tea Co., 4 Conn. App. 560, 563, 495 A.2d 1106 (1985). Even under this standard, we conclude that there was error.

I

The Statute of Frauds

The plaintiff claims that the court erred when it charged the jury that it was precluded, by the statute of frauds, from considering any oral promises made by the defendant to the plaintiff when deciding whether a contract existed between the parties. The plaintiff argues that this was error because the statute of frauds does not apply to employment contracts for an indefinite term. The defendant argues that the charge was correct under Connecticut law, and that any error in the instruction was harmless because no cause of action was sufficiently pleaded or proven and no oral promises were in evidence to support a contract. We agree with the plaintiff.

It is hornbook law and the law in Connecticut that “contracts of employment for personal services [of an indefinite duration] are held generally not to be within the statute, since the death of the employee, which may occur at any time, puts an end to the agreement. See notes, 35 A.L.R. 1432, 1440; 135 A.L.R. 646, 688.” Burkle v. Superflow Mfg. Co., 137 Conn. 488, 493, 78 A.2d 698 (1951); 3 Williston, Contracts (3d Ed. Jaeger) § 495; 72 Am. Jur. 2d, Statute of Frauds §§ 11, 40, 42. Even where it appears probable that the contract will extend beyond one year, if it is possible that it may be completed within one year, the agreement does not fall within the ambit of the statute of frauds. Burkle v. Superflow Mfg. Co., supra, 492-93; Toussaint v. Blue Cross, 408 Mich. 579, 292 N.W.2d 880 (1980); Weiner v. McGraw-Hill, Inc., 57 N.Y.2d 458, 443 N.E.2d 441, 457 N.Y.S.2d 193 (1982).

The alleged employment contract between the parties was one for the services of the plaintiff for an unspecified time period which, while probably extending beyond one year, could have been completed within one year if, for example, the plaintiff died or became unable to work. It, therefore, did not need to be in writing and signed by the party to be charged; General Statutes § 52-550; but could be shown by evidence of oral promises. The court misstated the law when it instructed the jury that they could not take oral promises into account to determine if a contract of indefinite duration existed between the parties. This instruction constituted plain error.

The defendant’s argument, namely, that any error in the instruction was harmless because no cause of action was pleaded in or proved under the first count, is without merit. The first count alleged that the parties had an express employment agreement, created at the time the plaintiff began his employment and supplemented by later written and oral commitments, that the defendant would not terminate the plaintiff as long as he performed his job satisfactorily. It further alleged that the defendant had breached this agreement by terminating the plaintiff’s employment contrary to its terms. A cause of action in contract was clearly stated.

The record reveals that the plaintiff presented sufficient evidence from which the jury might find the allegations of an express agreement proven. The plaintiff testified that at his initial employment interview with the defendant, he was concerned about job security and discussed the terms and conditions of his employment at length with a representative of the personnel department. The issues of career advancement and longevity were discussed and the plaintiff was asked if he intended to make his work with the defendant his life’s work. He replied affirmatively. Then, during his first year of employment with the defendant, the plaintiff had a conference with one of his superiors after which he believed he had a lifetime career with the defendant available to him. At about this time, the defendant was publicizing its personnel history and the fact that it did not lay off employees during the years of the great depression. The plaintiff also testified that there were other conversations with his supervisors over the next twenty-four years of employment which contained promises regarding the terms and conditions of his employment, and that he relied on those promises.

The defendant’s assistant vice president in charge of personnel also testified. He stated that the defendant’s personnel policies and procedures manual was accessible to all the defendant’s employees and that the defendant intended, by publishing its personnel policies in such a manual, for its employees to rely on the statements in it.

The manual contained a section on involuntary terminations, which stated that it was the defendant’s policy to terminate any employee “who cannot perform satisfactorily, whose attendance is poor, or who is otherwise unsuited to his job.” The section also described the procedure to be followed in the event of involuntary dismissal. The next section of the manual discusses severance pay for discharged employees, and states that these benefits are not available to those terminated “for cause.”

The defendant’s vice president further testified that it was the defendant’s policy to terminate employees only for “cause,” that term being defined by the three bases for termination stated in the manual: unsatisfactory performance; poor attendance; and lack of suitability for the job. He also testified that the defendant intended the manual to inform employees of its policy, and that it was reasonable for those employees to expect to be treated in accordance with the policy.

The plaintiff was familiar with the personnel policies and procedures manual due to the various responsibilities of the positions he held with the defendant. He testified that it was his experience that the defendant generally followed the policies and procedures stated in its manual, and that employees were terminated in accordance with its procedures. His performance appraisals over the years indicated that his work was satisfactory or better. The plaintiff believed that, if the defendant followed its written personnel policies as it had done with other employees in the past, he had a position with the defendant for as long as his satisfactory performance continued, and that his employment could not be terminated solely at the defendant’s will.

The plaintiff was entitled to have the jury determine, from this evidence, whether there was an agreement that the plaintiff would not be terminated without just cause or without certain procedures; see Harry A. Finman & Son, Inc. v. Connecticut Truck & Trailer Service Co., 169 Conn. 407, 409, 363 A.2d 86 (1975); and whether that agreement was breached. The jury was precluded from properly deciding these questions by the court’s erroneous instruction. This was harmful error and necessitates a new trial.

II

The Personnel Manual

The plaintiff claims that the court erred in its instructions to the jurors on the weight which they could ascribe to the defendant’s personnel policy and procedures manual and on the role the manual could play in their decision as to whether a contract of employment was formed between the parties. He farther claims that the court erred in declining to instruct the jury in accordance with the plaintiffs request to charge regarding the same issues. Although, like the statute of frauds issue discussed above, the plaintiff did not raise this claim in his motion to set aside the verdict, and although we found error requiring a remand on the statute of frauds issue, we also review this claim under the plain error doctrine. We do so because of a coalescence of factors.

The issue is of importance to the developing law of employment contracts in this state; see Riccio v. Abate, 176 Conn. 415, 418 n.1, 407 A.2d 1005 (1979); and is vital to the proper resolution of the case. See Leary v. Citizens & Manufacturers National Bank, 128 Conn. 475, 479, 23 A.2d 863 (1942). The issue was presented to the trial court, both by way of a specific request to charge and an exception to the charge, even though it was not presented again in the plaintiffs motion to set aside the verdict, and was fully briefed in this court. Thus, our consideration of it does not amount to appeal by ambuscade of the trial court. See State v. Wilson, 178 Conn. 427, 436, 423 A.2d 72 (1979). Also, since it is likely to arise on the retrial, our resolution of the issue will guide the parties and trial court, and thus be in the interest of judicial economy.

Neither the charge as given nor the plaintiff’s request to charge was a correct statement of the law. The charge as given told the jury that it could not find an employment contract solely from the defendant’s employment manual, without more specific indication from the defendant that an agreement existed. This charge focused the jury’s eye too closely on the manual and collided with the general principle that, absent a statutory warranty or specific contract language, whether there was a contract between the parties, and the terms of that contract, are questions of fact to be determined from all the evidence. Kakalik v. Bernardo, 184 Conn. 386, 393, 439 A.2d 1016 (1981); Bead Chain Mfg. Co. v. Saxton Products, Inc., 183 Conn. 266, 274-75, 439 A.2d 314 (1981); Lavigne v. Lavigne, 3 Conn. App. 423, 428, 488 A.2d 1290 (1985).

The plaintiff’s request to charge,* ** on the other hand, more closely approached a correct legal statement, but, in the way it was phrased, appeared to rule as a matter of law that the defendant’s policies and procedures made just cause a precondition of the plaintiff’s termination. This charge would also have departed from the principle that absent a statutory warranty or definitive contract language, whether there was a contract and the scope of its terms are questions of fact to be determined by the trier on the basis of all the evidence. Kakalik v. Bernardo, supra; Bead Chain Mfg. Co. v. Saxton Products, Inc., supra; Lavigne v. Lavigne, supra. Here, there was neither a statutory warranty nor definitive contract language. Thus, whether there was a contract of employment between the parties and, if so, what the parties intended the terms of that contract to be were questions of fact for the jury to decide on the basis of all the evidence produced, including the terms of the employment manual, the policies, procedures and practices of the defendant, and other relevant documents and testimony.

There is a body of decisional law which limits the effect of an employer’s manual or handbook on the issue of whether an employment contract was created, altering the traditional at will employment relationship. Those cases are to the effect that an employer is not bound by statements in an employment manual purporting to limit, by reference to a standard of good cause, its right to discharge an otherwise at will employee. Heideck v. Kent General Hospital, Inc., 446 A.2d 1095 (Del. 1982); Shaw v. S. S. Kresge Co., 167 Ind. App. 1, 328 N.E.2d 775 (1975); Johnson v. National Beef Packing Co., 220 Kan. 52, 551 P.2d 779 (1976); Mau v. Omaha National Bank, 207 Neb. 308, 299 N.W.2d 147 (1980); see also Rynar v. Ciba-Geigy Corporation, 560 F. Sup. 619 (N.D. Ill. 1983); note, “Protecting Employees At Will Against Wrongful Discharge: The Public Policy Exception,” 96 Harv. L. Rev. 1931, 1935 (1983).

There is, however, a growing body of cases which support the general proposition that an employment manual may, under appropriate circumstances, provide a basis for a finding that an employment contract existed which limited the employer’s right to discharge the employee. Greene v. Howard University, 412 F.2d 1128 (D.C. Cir. 1969); Carter v. Kaskaskia Community Action Agency, 24 Ill. App. 3d 1056, 322 N.E.2d 574 (1974); Toussaint v. Blue Cross, 408 Mich. 579, 292 N.W.2d 880 (1980); Pine River State Bank v. Mettille, 333 N.W.2d 622 (Minn. 1983); Weiner v. McGraw-Hill, Inc., 57 N.Y.2d 458, 443 N.E.2d 441, 457 N.Y.S.2d 193 (1982); Yartzoff v. Democrat-Herald Publishing Co., 281 Or. 651, 576 P.2d 356 (1978); Osterkamp v. Alkota Mfg., Inc., 332 N.W.2d 275 (S.D. 1983); see also Wagner v. Sperry Univac, Division of Sperry Rand Corporation, 458 F. Sup. 505 (E.D. Pa. 1978), aff'd without opinion, 624 F.2d 1092 (3d Cir. 1980); Morris v. Lutheran Medical Center, 215 Neb. 677, 340 N.W.2d 388 (1983).

This issue has not been specifically decided by our Supreme Court. We are convinced, nonetheless, that in appropriate circumstances the law of our state permits a fact finder to find from all the evidence, including an employer’s personnel policies and procedures manual, that a contract of employment existed which limited the employer’s right to discharge an otherwise at will employee. Two reasons lead us to that conviction.

First, our Supreme Court, in a discussion about the “substantial erosion of the employment at will rule”; Magnan v. Anaconda Industries, Inc., 193 Conn. 558, 563, 479 A.2d 781 (1984); has adverted to the fact that “the courts have occasionally found an implied promise to discharge only for cause in the circumstances of particular employment relationships. Sometimes the promise has been found in the representations contained in an employee relations manual or handbook.” (Footnote omitted.) Id., 564. The court noted such a case as one of the “situations in which an employment contract may be found not to be terminable at will.” Id., 565. Although this language is dictum, as the plaintiff concedes in his brief, we read it as a fairly clear statement of approval of the general propositions of law contained in it.

Earlier Connecticut precedent has established, in the context of death and disability benefits of an at will employee, that written assurances of those benefits by the employer are supported by the consideration of the employee’s continued service and are binding on the employer even where the writing specifically claimed the benefits to be voluntary by the employer and not contractual. Tilbert v. Eagle Lock Co., 116 Conn. 357, 362, 165 A.2d 205 (1933). In addition, the issuance of a stock option to an employee constitutes a contract between the employer and employee, supported by the consideration of the employee’s subsequent continued employment. Ellis v. Emhart Mfg. Co., 150 Conn. 501, 505, 191 A.2d 546 (1963); see also Dolak v. Sullivan, 145 Conn. 497, 503-504, 144 A.2d 312 (1958) (employer’s retirement plan constituted contract with employee, supported by consideration of employee’s subsequent continued employment).

Second, although Connecticut has long followed “the general proposition that contracts of permanent employment, or for an indefinite term, are terminable at will,” which do not ordinarily require a showing of just cause for termination; Sheets v. Teddy’s Frosted Foods, Inc., 179 Conn. 471, 474, 427 A.2d 385 (1980); the cases establishing that proposition do not preclude the parties from contracting otherwise. See Somers v. Cooley Chevrolet Co., 146 Conn. 627, 153 A.2d 426 (1959); Fisher v. Jackson, 142 Conn. 734, 118 A.2d 316 (1955); Carter v. Bartek, 142 Conn. 448, 114 A.2d 923 (1955). Those cases implicitly treat as a question of fact (1) whether the parties agreed on a contract of employment for an indefinite term, supported only by the employee’s rendering of services incident to the employment, and thus terminable at will, or (2) whether they agreed on a contract for a definite term or a contract of employment supported by consideration other than the rendering of those services, and thus not terminable at will. See, e.g., Carter v. Bartek, supra, 450. We read those cases as involving “only a rule of contract construction [and not as involving] a rule imposing substantive limits to the formation of a contract. See Restatement (Second) of Agency, § 442, comment a (inference that employment is at-will may be rebutted by specific terms of the agreement.)” Pine River State Bank v. Mettille, supra, 628. “There is no reason why the at-will presumption needs to be construed as a limit on the parties’ freedom to contract. If the parties choose to provide in their employment contract of an indefinite duration for provisions of job security, they should be able to do so.” Id. Whether they did so in any particular case presents a question of fact.

Thus, permitting the fact finder to assess all the evidence and decide, pursuant to proper instructions from the court, whether the parties agreed on a contract of employment limiting the employer’s right to terminate the employee, is consistent with our precedents that, in the absence of “definitive contract language”; Bead Chain Mfg. Co. v. Saxton Products, Inc., 183 Conn. 266, 274, 439 A.2d 314 (1981); “contractual intention presents a classic question of fact.” Lavigne v. Lavigne, 3 Conn. App. 423, 428, 488 A.2d 1290 (1985). The identification of that intention does no more than bring about “the fulfillment of the reasonable expectations of the parties.” Magnan v. Anaconda Industries, Inc., supra, 572.

Having gleaned from our precedents that an employment manual may, under appropriate circumstances, provide a basis for a finding of an enforceable contract limiting the employer’s right to discharge the employee, we now turn to an explication of those appropriate circumstances. Those jurisdictions which have permitted recovery based on employment manuals have done so in varying ways. See, e.g., Toussaint v. Blue Cross, supra; Pine River State Bank v. Mettille, supra; Weiner v. McGraw-Hill, Inc., supra.

We find most persuasive the analysis presented by the Minnesota Supreme Court in Pine River State Bank v. Mettille, supra. This is because it approaches what is essentially a question of contract law and contract construction from the standpoint of traditional principles of contract law.

The pertinent issues in that case were as follows: “(1) Can a personnel handbook, distributed after employment begins, become part of an employee’s contract of employment? (2) If so, are job security provisions in the handbook enforceable when the contract is of indefinite duration?” Id., 625. In the following discussion, we summarize the critical holdings of that case, with which we agree. See id., 625-30.

A promise of employment for an indefinite term but containing particular terms may create a binding unilateral contract, if the promise is in the form of an offer which is accepted by the employee. Id., 626. “The offer must be definite in form and must be communicated to the” employee. Id. Whether there is an offer for a unilateral contract is a question of fact to be determined by examining the conduct of the parties. “An employer’s general statements of policy are no more than that and do not meet the contractual requirements for an offer.” Id. Whether a statement of policy constitutes such an offer is a question of fact to be determined from the language used and all the surrounding circumstances.

If the employer’s manual contained an offer which was communicated by dissemination to the employee, the employee’s retention of employment may be acceptanee of the unilateral contract; by remaining on the job, although free to leave, he may have supplied the necessary consideration. Id., 627. This principle is consistent with our precedents on death and disability benefits, stock options and retirement plans. Ellis v. Emhart Mfg. Co., Inc., supra; Dolak v. Sullivan, supra; Tilbert v. Eagle Lock Co., supra; cf. footnote 11, infra.

“[W]e do not think that applying the unilateral contract doctrine to personnel handbooks unduly circumscribes the employer’s discretion. Unilateral contract modification of the employment contract may be a repetitive process. Language in the handbook itself may reserve discretion to the employer in certain matters or reserve the right to amend or modify the handbook provisions. We conclude, therefore, that personnel handbook provisions, if they meet the requirements for formation of a unilateral contract, may become enforceable as part of the original employment contract.” Pine River State Bank v. Mettille, supra, 627.

The Minnesota court then turned to the specific question of “whether handbook provisions relating to job security . . . are an exception to the general rule just discussed. Put more precisely, the question is whether, in an at-will hiring, the job security provisions in a subsequently adopted employee handbook are enforceable.” Id. The court recognized, as do we, that absent additional consideration beyond the rendering of the services, a claim by the employee that he was promised permanent or lifetime employment will not alter the at will nature of the employment. Id.; Carter v. Bartek, supra, 450.

Like the plaintiff in this case, “the employee [in Pine River] does not claim, nor could he, that he was promised ‘permanent’ employment. The law is hesitant to impose this burdensome obligation on an employer in the absence of an explicit promise to that effect. . . . Instead, the . . . employee is claiming that his job termination was wrongful because the job security provisions set out in the employee handbook were not followed.” (Citation omitted.) Pine River State Bank v. Mettille, supra. Similarly, the plaintiff in this case claims that his termination was in violation of binding policies and procedures of the defendant, expressed orally to him and in the employer’s manual. He relies specifically on the part of the manual stating that “[i]t is Company policy to terminate any employee who cannot perform satisfactorily . . . or who is otherwise unsuited to his job,” and placing the responsibility on the employee’s manager to warn the employee of potential discharge “if definite improvement is not made after a probationary period has been completed.” He also relies on the language of the manual that “[i]f the employee does not improve and a transfer to another job is not feasible, termination will then result,” and that severance benefits are not available to employees terminated “for cause.”

After examining and rejecting the reasons usually “given for the unenforceability of job termination restrictions in an employment contract of indefinite duration”; Pine River State Bank v. Mettille, supra, 628; the court held “that where an employment contract is for an indefinite duration, such indefiniteness by itself does not preclude handbook provisions on job security from being enforceable, whether they are proffered at the time of the original hiring or later, when the parties have agreed to be bound thereby.” Id., 629-30.

We also agree with the Minnesota court’s caveat that “[n]ot every utterance of an employer is binding. It remains true that “ ‘the employer’s prerogative to make independent, good faith judgments about employees is important in our free enterprise system.’ Blades, Employment at Will vs. Individual Freedom: On Limiting the Abusive Exercise Of Employer Power, 67 Colum. L. Rev. 1404, 1428 (1967). Properly applied, we think that the unilateral contract modification analysis appropriately accomodates the interests of the employee and the employer.’’ Pine River State Bank v. Mettille, supra, 630. “We are mindful that courts should not lightly intervene to impair the exercise of managerial discretion . . . .” Sheets v. Teddy’s Frosted Foods, Inc., supra, 477. We conclude, nonetheless, that application of this analysis to this type of case is a useful tool in determining when intervention is or is not warranted. The failure of the trial court to use this analysis was erroneous.

The defendant argues in effect that, even if the court’s instructions were erroneous, the error was harmless because (1) the general verdict rule obviates any question of whether a contract was formed, (2) the instruction only prevented the jury from relying solely on the manual, and the jury had other evidence before it, and (3) there was overwhelming evidence that the plaintiff’s termination was in accordance with the manual. We disagree.

We have already discussed the defendant’s argument based on the general verdict rule. With respect to the second argument, we note that the court had already charged the jury that they could not use the defendant’s oral promises as a basis for a finding that a contract existed. The charge in question here completed the circle by functionally ruling out, as well, the chief written evidence relied on by the plaintiff to establish a contract. With respect to the third argument, we note that the evidence was in conflict. The plaintiff was entitled to have a critical factual issue in the case presented to the jury pursuant to proper principles of law.

Ill

Promissory Estoppel

The plaintiffs final claim is that the court erred in directing a verdict for the defendant on the second count of the complaint. The court ruled that the second count did not state a cause of action and that, even if it did, the evidence was insufficient to permit that count to go to the jury. We agree with the plaintiff that the court erred.

The second count, shorn of surplusage, alleged essentially as follows: In 1952, the plaintiff entered into an employment agreement with the defendant. At that time, the defendant had expressed, in writing and orally, through its policies and practices, assurances to its employees that it offered career employment, job advancement opportunities, a hire from within policy, and other incentives designed to attract prospective employees seeking careers with the defendant. The plaintiff knew of these policies and practices when he was hired.

The second count further alleged as follows: During his twenty-four years with the defendant, the plaintiff refused other job offers and employment opportunities in reliance on the promises of the defendant that he had a career with opportunities for advancement in and retirement from the defendant as long as he performed satisfactorily. During those twenty-four years, the defendant made written and oral statements to the effect that it wanted to retain long time employees, and that it valued experience, longevity of service and loyalty to it. To encourage employees to remain with it, it offered benefits, advancement and career opportunities, and job security to its employees.

The count concluded by alleging that, as a result of these promises and the plaintiffs detrimental reliance on them, an agreement existed between the plaintiff and the defendant in which the defendant agreed not to terminate the plaintiff as long as his job performance was satisfactory. The defendant breached the agreement by terminating him without regard to the terms of that agreement.

In deciding whether these factual allegations stated a cause of action, we read them “favorably to the pleader and view [them] in a broad fashion, not strictly limited to the allegations, but also including the facts necessarily implied by and fairly provable under them.” Schmidt v. Yardney Electric Corporation, 4 Conn. App. 69, 74, 492 A.2d 512 (1985). Under this standard, the plaintiffs second count passes muster.

“For those employees not protected by collective bargaining agreements, civil service statutes or other laws, the courts have occasionally found an implied promise to discharge only for cause in the circumstances of particular employment relationships. Sometimes the promise has been found in the representations contained in an employee relations manual or handbook. In appropriate circumstances, such an agreement may arise when an employee, in reliance on an implied representation that the position will not arbitrarily be terminated, leaves his current employment, or otherwise acts in reasonable and significant reliance on the representation. These illustrations are not intended to encompass all of the situations in which an employment contract may be found not to be terminable at will.” (Emphasis added.) Magnan v. Anaconda Industries, Inc., supra, 564-65. This theory of detrimental reliance on a promise is consistent with the language of Sheets v. Teddy’s Frosted Foods, Inc., supra, 475, approving, in the context of an employment relationship, “[t]he development of liability in contract for action induced by reliance upon a promise, despite the absence of common-law consideration normally required to bind a promisor; see Restatement (Second), Contracts § 90 (1973)

The second count of the complaint stated a cause of action. It alleged that the defendant’s policies, practices, and written and oral promises to the plaintiff constituted promissory representations that his employment would not be terminated except for cause related to his performance, and that, by refusing other job offers and employment opportunities, and remaining with the defendant for twenty-four years, he acted in reasonable and significant reliance on those representations.

There was sufficient evidence produced by the plaintiff in support of the allegations of the second count to submit it to the jury. There was ample evidence from which the jury could have concluded that the defendant made implied representations that the plaintiff would not be terminated except for cause related to his performance.

This evidence derives from the following: The plaintiff testified that, at his initial employment interview with the defendant, the personnel representative interviewing him asked him about making his employment there his life’s work and the plaintiff made it clear that he intended to do so. The next year, the plaintiff had a conference with his superior, an assistant secretary of the claims department, which led the plaintiff to believe that he was performing satisfactorily and that he had a lifetime career available to him with the defendant. Later conversations with his supervisors contained promises regarding the terms and conditions of his employment, which led him to continue in this belief. His performance appraisals, for the most part, showed that his work was satisfactory or above satisfactory. The defendant’s personnel policies and procedures manual stated regarding involuntary terminations, that “[i]t is Company policy to terminate any employee who cannot perform satisfactorily, whose attendance is poor or who is otherwise unsuited to his job.” See footnote 3, supra. The manual was made available to all of the defendant’s employees, and the defendant intended its employees to rely on the statements contained in it.

The evidence showing implied representations also included the following: The defendant’s vice president for personnel stated that it was reasonable for the employees to expect to be treated in accordance with the manual. He also testified that it was the defendant’s policy, as stated in the manual, to terminate employees only for cause, as defined by the three bases provided for in the manual. The plaintiff, who was supplied with a copy of the manual and implemented its policies himself in the course of his duties, was espedally familiar with its contents. His experience was that the defendant followed its written personnel policies and procedures, namely, that employees would only be terminated in accordance with the manual, and he expected to be treated in the same manner.

There was also evidence of the plaintiffs reasonable and significant reliance on these representations. This evidence consists of his twenty-four years of service, coupled with his testimony that in reliance on those representations he remained with the defendant for that period of time and turned down other job offers which were made to him during the course of his employment.

There is error in part, the judgment is set aside as to the first and second counts of the complaint and a new trial is ordered.

In this opinion the other judges concurred.

       In his preliminary statement of issues, the plaintiff also raised as a claim of error the directed verdict on the third count. This claim was not briefed, however, and is deemed abandoned. Mihalek v. Cichowski, 4 Conn. App. 484, 485 n.2, 495 A.2d 721 (1985).

       Contrary to the defendant’s suggestion, the Connecticut courts have never adopted the line of cases holding that an agreement for employment is within the statute of frauds “where there is no consideration for a contract for personal services or employment other than the promise of the employee to perform, and the purpose and intention of the parties admits of no construction permitting or contemplating complete performance or termination of the employment within a year.” 72 Am. Jur. 2d, Statute of Frauds § 42.

       The defendant challenges the legal sufficiency of this count of the complaint, based on the general proposition that employment contracts of permanent or indefinite duration are terminable at will. See, e.g., Somers v. Cooley Chevrolet Co., 146 Conn. 627, 153 A.2d 426 (1959). We discuss our reasons for rejecting this claim of the defendant in the next part of this opinion, captioned “THE PERSONNEL MANUAL”; see infra, p. 402; but note at this stage that this count of the complaint alleges an alteration by express contract of the plaintiff’s at will employment status.
      The plaintiff’s claim does not purport to come within either Sheets v. Teddy’s Frosted Foods, Inc., 179 Conn. 471, 427 A.2d 385 (1980), or Magnan

        v. Anaconda Industries, Inc., 193 Conn. 558, 479 A.2d 781 (1984). Neither of those cases involved a claim of an express contract altering the employee’s at will employment status, as does this case. They both involved claims of a breach of a covenant of good faith implied in the at will employment status, unlike this case.

       The pertinent section on involuntary terminations or dismissals provides as follows: “It is Company policy to terminate any employee who cannot perform satisfactorily, whose attendance is poor, or who is otherwise unsuited to his job. It is the responsibility of the manager to identify such employees and to warn them that discharge will result if definite improvement is not made after a probationary period has been completed. It is recommended that a written notice be given to the employee immediately following the first discussion to avoid any possibility of misunderstanding. If the employee does not improve and a transfer to another job is not feasible, termination will then result.”

       For a general discussion of the cases which have, and have not, met the “plain error” test, see Moller & Horton, Connecticut Practice (8th Ed.) § 3063.

       The plaintiff also raises, in his reply brief in this court, a claim of error in the trial court’s charge on the general standard to be applied by the jury in deciding whether just cause existed for the termination of the plaintiff s employment. At oral argument, the plaintiff justified raising this claim of error in this unorthodox fashion on the principal basis that the newly identified claim was made in reply to a portion of the defendant’s argument in its brief on appeal.
      We decline to consider this claim of error. Claims of error by an appellant must be raised in his original brief; Practice Book § 3060F; so that the issue as framed by him can be fully responded to by the appellee in its brief, and so that we can have the full benefit of that written argument. Although the function of the appellant’s reply brief is to respond to the arguments and authority presented in the appellee’s brief, that function does not include raising an entirely new claim of error. Also, since a new trial is required in any event, the plaintiff will have a full opportunity to present the question anew to the trial court and, in the event it is necessary, properly to preserve the issue for appeal.

       The challenged portion of the charge is as follows: “I further instruct you that you cannot rely solely on anything written in Aetna Life and Casualty’s employment manual to determine whether the contract of employment Mr. Finley claims existed did, in fact, exist. Although there has been introduced evidence from the employment manual, there has been testimony about these pages of the employment manual, it is the law in this state that without further explicit indication from the defendant, Aetna Life and Casualty Co., that an employment manual cannot form a sole basis of a contract between the plaintiff and the defendant. There must be more evidence than that presented to you.”

       The plaintiffs request to charge was as follows: “Plaintiff claims that the personnel and appraisal policies and procedures which include the Personnel Policies and Procedures Manual and Personnel Practices make up the contractual obligations which defendant extended the plaintiff with regard to plaintiff's employment.
      “Such personnel policies and procedures issued by an employer regarding aspects of the employment relation with its employees become the employer’s contractual obligations when with knowledge of their existence, employees continue to work for the employer. That is, they become a contract of employment.
      “The existence of such policies and procedures required the defendant to terminate its employees only for just cause and not treat its employees arbitrarily.”

       The only disagreement we have with the Minnesota court is that it casts some of its conclusions as conclusions of law, rather than as findings of fact for the fact finder to determine from all the evidence. We have, therefore, recast those conclusions as factual, subject to review by the court for evidentiary sufficiency, in order to be consistent with our law on issues of contract formation and construction.

       The three reasons usually given are (1) the at will rule overrides any such restrictions on job termination, (2) there is no additional consideration supporting the restrictions, and (3) there is no mutuality of obligation. The court rejected the first and second reasons because they construe the at will rule as one of substantive law, rather than one of contract construction. Pine River State Bank v. Mettille, 333 N.W.2d 622, 628-29 (Minn. 1983). It rejected the third because “the concept of mutuality in contract law has been widely discredited and the right of one party to terminate a contract at will does not invalidate the contract.” Id. 629; Restatement (Second), Contracts § 79.

       We note that the Supreme Court’s statement that “such an agreement [to discharge only for cause] may arise when an employee, in reliance on an implied representation that the position will not arbitrarily be terminated, leaves his current employment”; Magnan v. Anaconda Industries, Inc., 193 Conn. 558, 564-65, 479 A.2d 781 (1984); appears to depart from earlier precedent. Cf. Fisher v. Jackson, 142 Conn. 734, 737, 118 A.2d 316 (1955). (“The mere giving up of a job by one who decides to accept a contract for alleged life employment is but an incident necessary on his part to place himself in a position to accept and perform the contract; it is not consideration for a contract of life employment.”) Since this case does not involve the particular factual situation of an employee leaving one job to take another, we need not attempt to resolve the apparent conflict, and leave it for another day.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Joseph Purcell et al. v. Charles I. Slagle et al.
    (3296)
    Dupont, C. J., Hull and Borden, Js.
    Argued June 4
    decision released October 1, 1985

      James A. Fulton, for the appellants (plaintiffs).

      Matthew J. Forstadt, for the appellees (defendants).
   Per Curiam.

This is an appeal of the plaintiffs from a judgment of dismissal in a summary process action. The case is a procedural bramblebush.

The plaintiffs, owners of a commercial building in Greenwich, leased office space in their building to the defendants under a written lease agreement dated January 11, 1977. On October 1, 1982, the plaintiffs commenced this summary process action against the defendants at the Housing Session of the Superior Court for the judicial district of Stamford-Norwalk, alleging violations of the lease agreement and a failure to pay rent. On October 14, 1982, the defendants filed a request to revise under Practice Book § 147, seeking greater specificity with regard to the allegations made in the complaint. The plaintiffs complied with this request by filing a revised complaint on November 17, 1982.

On November 19, 1982, the defendants filed a second request to revise, asking that the plaintiffs plead their various causes of action in the form of separate counts. On November 23, 1982, the plaintiffs filed a motion for judgment for failure to plead. An objection by the defendants to the motion was filed on November 29, 1982, and their answer, special defenses and counterclaims were filed on December 3, 1982.

On December 7,1982, the trial court held a hearing at which counsel for both parties were heard on the plaintiffs’ motion for default. Pursuant to General Statutes § 47a-26a, the trial court rendered judgment granting possession to the plaintiffs on December 14, 1982, for the failure of the defendants to plead.

In its written memorandum of decision, the trial court specifically found that the defendants’ second request to revise, filed on November 19, was a legal nullity which did not constitute a pleading within the requirements of General Statutes § 47a-26c, because pleadings in a summary process action must advance at least one step within each successive period of three days from the preceding pleading or motion. The trial court also found that the objection filed by the defendants on November 29, 1982, was also a legal nullity on the ground that there is no provision under the rules of practice for the filing of such a pleading. The trial court, in addition, held that the answer, special defenses and counterclaims filed by the defendants on December 3, 1982, did not cure the default in that they were not filed within three days of the motion for judgment, as required by General Statutes § 47a-26c.

On December 17,1982, the defendants filed an appeal to this court from the judgment of the trial court. Subsequently, the defendants, on March 29, 1983, filed a motion to open judgment pursuant to General Statutes § 52-212a. This motion was denied by the trial court in a written decision dated April 21, 1983, and the denial of that motion was incorporated in their appeal.

On July 1, 1983, the defendants filed a “Motion to Reconsider and/or Reargue Motion to Reopen Default Judgment.” In this motion, the defendants argued that they had invested substantial funds in the demised premises and that a similar investment had been the basis for opening a judgment by the same trial court in a related case. These arguments had not been advanced in connection with the defendants’ earlier motion to open of March 29, 1983.

On July 19,1983, the trial court heard oral argument on the “Motion to Reconsider and/or Reargue Motion to Reopen.” After this hearing, the trial court, without written opinion, granted the motion and opened the default judgment. This court, on January 6,1984, sua sponte, dismissed the appeal of the defendants as moot.

Subsequently, a judgment of dismissal was rendered on May 29,1984, pursuant to Practice Book § 251, for failure of the plaintiffs to prosecute the action with reasonable diligence. On June 6,1984, the plaintiffs filed this appeal from the judgment of dismissal and the defendants cross appealed from the original judgment of possession for the plaintiffs and from the denial of their motion to open judgment rendered on April 21, 1983. This court dismissed the defendants’ cross appeal on January 17, 1985.

On appeal from the judgment of dismissal, the plaintiffs advance several claims of error. Basically, they argue that the trial court lacked jurisdiction to open the default judgment of December 14, 1982, because the defendants’ motion to reconsider and reargue their motion to open the default judgment was filed on July 1, 1983, in contravention of General Statutes § 52-212a and Practice Book § 326, and that, therefore, the judgment of dismissal which occurred on May 29, 1984, was a procedural nullity. In the plaintiffs’ view, their judgment of possession rendered on December 14, 1982, should be reinstated.

The plaintiffs do not attack the judgment of dismissal rendered pursuant to Practice Book § 251 on any grounds related to its propriety per se. There is no claim, for example, that they were, in fact, prosecuting their claim with due diligence or that notice to them of the pendency of the dismissal motion was lacking or insufficient. Gionfrido v. Wharf Realty, Inc., 193 Conn. 28, 474 A.2d 787 (1984); Grunschlag v. Ethel Walker School, Inc., 190 Conn. 679, 462 A.2d 1 (1983).

A disciplinary judgment of dismissal pursuant to Practice Book § 251 is not an adjudication on the merits. Milgrim v. Deluca, 195 Conn. 191, 193-95, 487 A.2d 522 (1985); Pacelli Bros. Transportation, Inc. v. Pacelli, 189 Conn. 401, 411-12, 456 A.2d 325 (1983). In this case, such a dismissal would allow the plaintiffs to reinstitute their action. Gionfrido v. Wharf Realty, Inc., supra, 34 n.6. Implicit in a § 251 dismissal is the waiver of all nonjurisdictional defects or prior rulings of the trial court and prevents appeal of any claims of error which preceded the dismissal. See State v. Martin, 197 Conn. 17, 25, 495 A.2d 1028 (1985); State v. Satti, 2 Conn. App. 219, 221, 477 A.2d 144 (1984).

The plaintiffs admit, in their brief, that they induced the rendering of the judgment of dismissal in their case. They admittedly did so in order to obtain appellate review of the trial court’s opening of their default judgment, which they claim was erroneous because of the lack of subject matter jurisdiction. When a party attempts to appeal an interlocutory ruling of a trial court by “lying in wait” for a subsequent final judgment sufficient for appellate review, the adverse ruling must have precluded him from prevailing on the merits. State v. Southard, 191 Conn. 506, 512, 467 A.2d 920 (1983); State v. Ross, 189 Conn. 42, 47-48, 454 A.2d 266 (1983). The plaintiffs’ remedy upon that opening was to litigate their case and, if necessary, in the event of an adverse judgment, to claim as error the earlier action of the trial court. Van Mecklenburg v. Pan American World Airways, Inc., 196 Conn. 517, 494 A.2d 549 (1985). The plaintiffs could not circumvent an adjudication on the merits by simply waiting for a § 251 dismissal.

There is no error.

       General Statutes § 47a-26a provides in pertinent part: “If the defendant appears but does not plead within three days after the return day, the complainant may file a motion for judgment for failure to plead .... If the defendant fails to plead within three days after receipt of such motion by the clerk, the court shall forthwith enter judgment that the complainant recover possession or occupancy with his costs.”

       General Statutes § 47a-26c provides: “All pleadings, including motions, shall advance at least one step within each successive period of three days from the preceding pleading or motion.”

       General Statutes § 52-212a provides: “Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, a civil judgment or decree rendered in the superior court may not be opened or set aside unless a motion to open or set aside is filed within four months following the date on which it was rendered or passed. The parties may waive the provisions of this section or otherwise submit to the jurisdiction of the court.”

       Practice Book § 251, in pertinent part, provides: “If a party shall fail to prosecute an action with reasonable diligence, the court may, after hearing, on motion by any party to the action pursuant to Sec. 196, or on its own motion, render a judgment dismissing the action with costs. At least two weeks’ notice shall be required except in cases appearing on an assignment list for final adjudication.”


text:
    Connecticut Student Loan Foundation v. Arthur Romano
    (3492)
    Dupont, C. J., Hull and Hammer, Js.
    Submitted on briefs September 20
    decision released October 22, 1985

      Victor P. Fasano filed a brief for the appellant (defendant).

      Robert F. Ludgin filed a brief for the appellee (plaintiff).
   Per Curiam.

There is no error.


text:
    Robert J. Morande v. Newman Lincoln-Mercury, Inc., et al.
    (2988)
    Dupont, C. J., Hull and Hammer, Js.
    Argued September 20
    decision released October 22, 1985

      David E. Kamins, for the appellant (plaintiff).

      Louis J. Bromberg, with whom was Morton W. Appleton, for the appellees (defendants).
   Per Curiam.

This appeal constitutes no more than another request that we accept, upon conflicting evidence presented by the parties at the trial, the plaintiffs version of the facts. Both the Supreme Court and this court have “repeatedly criticized and attempted, apparently in vain, to discourage this misuse of the appellate process.” Connecticut National Bank v. Nagy, 2 Conn. App. 448, 479 A.2d 1224 (1984); Munn v. Scalera, 181 Conn. 527, 530, 436 A.2d 18 (1980).

The trial court’s memorandum of decision clearly indicates that the factual finding which the plaintiff challenges was based on the court’s assessment of his own testimony. Nothing in our law is more elementary than that the trier is the final judge of the credibility of witnesses and of the weight to be accorded their testimony. Morgan v. Hill, 139 Conn. 159, 161, 90 A.2d 641 (1952). Our function is restricted to determining whether the facts found are supported by the evidence or whether the facts as found are clearly erroneous in light of the evidence and the record as a whole. Branigan v. Cohen, 3 Conn. App. 580, 581, 490 A.2d 1019 (1985).

Our review of the record establishes that the challenged facts are supported by the evidence, that they are not clearly erroneous, and that the court’s conclusions based on those facts are legally and logically correct. See Vesce v. Lee, 185 Conn. 328, 335, 441 A.2d 556 (1981).

There is no error.


text:
    State of Connecticut v. Frank G. Longabardi
    Borden, Spallone and Satter, Js.
    (2733)
    Argued September 19
    decision released October 22, 1985

      Peter S. Vannucci, with whom, on the brief, was Jackie Chan, for the appellant (defendant).

      MichaelE. O’Hare, deputy assistant state’s attorney, with whom, on the brief, were Eugene J. Callahan, state’s attorney, and David I. Cohen and John M. Massameno, assistant state’s attorneys, for the appellee (state).
   Per Curiam.

The defendant appeals from the judgment of his conviction, after a jury trial, of the offenses of sexual assault in the first degree, in violation of General Statutes § 53a-70 and unlawful restraint in the first degree, in violation of General Statutes § 53a-95.1 His sole claim is that the evidence was insufficient for both convictions. We find no error.

Ordinarily we would, when confronted with a claim of evidentiary insufficiency, be constrained to state all the relevant evidence from which the jury could have reached its verdicts. In this sordid case, however, the defendant’s claim is so devoid of merit that we deem it unnecessary to do so.

Suffice it to say that the jury could reasonably have found the following facts: During a five hour episode in the defendant’s apartment, he compelled the victim, a prostitute, to engage in acts of sexual intercourse by threatening to shoot her with a shotgun, which he had in hand or nearby during the assaults. He penetrated her vagina three times with the barrel of the shotgun while threatening to shoot her. He slapped her in the face three times, and pressed the gun to her breast so hard that she was bruised for two months afterwards. He refused to let the victim, who feared for her life, leave the apartment. Later, he took her, blindfolded, into his automobile, drove her to another area, ordered her out of the car into the woods and forced her to kneel while he pressed a gun against her back and told her he would shoot her if she turned around. He then left.

The defendant’s sole claim is that the state’s case fails on both counts of the conviction because there was no evidence that the shotgun was loaded or capable of firing a shot. Thus, he claims that there was no evidence of the use of force or the threat of use of force, which is required for a conviction of sexual assault in the first degree; see footnote 1, supra; and no evidence of circumstances exposing the victim to a substantial risk of physical injury, which is required for a conviction of unlawful restraint in the first degree. See footnote 2, supra. We disagree. The evidence of use and threatened use of the shotgun, loaded or not, and of the slapping of the victim, supplied more than an ample basis for findings by the jury of the use of force, the threat of force and circumstances exposing the victim to a substantial risk of physical injury.

There is no error.

       General Statutes § 53a-70 (a) provides in pertinent part: “A person is guilty of sexual assault in the first degree when such person compels another person to engage in sexual intercourse by the use of force against such other person ... or by the threat of use of force against such other person . . . which reasonably causes such person to fear physical injury to such person . . . .”

       General Statutes § 53a-95 (a) provides in pertinent part: “A person is guilty of unlawful restraint in the first degree when he restrains another person under circumstances which expose the latter to a substantial risk of physical injury.”


text:
    Joseph Zaleski v. Albert D. Lizzi et al.
    (3730)
    Dupont, C. J., Hull and Bieluch, Js.
    Argued September 20
    decision released October 22, 1985

      Mark S. Rosenblit, for the appellant (plaintiff).

      James J. Scalise, with whom, on the brief, was Steven J. Ludwikow, for the appellee (named defendant).
   Per Curiam.

There is no error.


author: Bieluch, J.

text:
    Second Exeter Corporation v. Harold Epstein et al.
    (3789)
    Daly, Bieluch and Covello, Js.
    Argued September 18
    decision released October 22, 1985

      Richard P. Weinstein, with whom, on the brief, was Ronald T. Murphy, for the appellant (plaintiff).

      Dean W. Baker, for the appellees (defendants).
   Bieluch, J.

This appeal arises out of the trial court’s judgment for the defendants in an action for money due on a lease of telephone equipment. The trial court held that the plaintiff, as collection agent for the lessor, First National Bank of Boston, did not have standing to sue the defendants in its own name. We agree.

Paragraph one of the plaintiff’s revised complaint alleged that: “The plaintiff, Second Exeter Corporation, is a Massachusetts corporation authorized to do business in the State of Connecticut, and is the lawful collection agent for the First National Bank of Boston and is acting in that capacity in regard to the instant matter.” In response to that allegation, the defendants answered that they were without sufficient information as to the allegation contained in this paragraph of the complaint and left the plaintiff to its proof. The trial court concluded that the plaintiff could not sue the defendants in its own name as it was merely an agent and not an assignee of the claim sought to be collected. The court rendered judgment for the defendants and the plaintiff has appealed, claiming that the court erred (1) in holding that the defendants were not required to raise the issue of the plaintiffs capacity to sue by way of a special defense, and (2) in concluding that a collection agent cannot sue in its own name on behalf of its principal.

With regard to the plaintiff’s first claim of error, Practice Book § 160 provides that “[i]f the defendant intends to controvert the right of the plaintiff to sue ... in any . . . representative capacity, ... he shall deny the same in his answer specifically. ” (Emphasis added.) Practice Book Form 105.4 further demonstrates that the proper way to dispute a party’s representative capacity is to state that “[t]he defendant denies that the plaintiff is . . . [the representative of the true party in interest].” (Emphasis added.)

Further, Practice Book § 164 distinguishes between those cases where a special defense is required in contradistinction to those where a simple denial, whether general or specific, is sufficient. That rule provides in pertinent part that in the answer “[f]acts which are consistent with [the allegations of the complaint] but show, notwithstanding, that [the plaintiff] has no cause of action, must be specially alleged.” That is the definition of a special or affirmative defense. Practice Book § 164 further states that “advantage may be taken, under a simple denial, of such matters as the statute of frauds, or title in a third person to what the plaintiff sues upon . . . .” (Emphasis added.) Read together, Practice Book §§ 160 and 164 make it clear that a defendant should controvert the plaintiffs alleged representative capacity by denying specifically such allegation or the particular paragraph of the complaint in which it is contained. It is the latter which was done in this case by the defendants.

The defendants specifically denied the paragraph of the complaint which contained the plaintiff’s allegation of capacity to sue. Practice Book § 129 provides that allegations in a pleading are deemed to be admitted unless denied by the adverse party or “unless he avers that he has not any knowledge or information thereof sufficient to form a belief.” “The pleading of no knowledge or information to these allegations is in effect a denial.” Postemski v. Watrous, 151 Conn. 183, 185, 195 A.2d 425 (1963); see also Ruda v. McKinstry, 162 Conn. 268, 271, 294 A.2d 318 (1972).

As to the second claim of error, the plaintiff argues that as a collection agent it had a fiduciary duty to its principal analogous to the duty of a trustee to the beneficiary of a trust. Consequently, the plaintiff argues that like a trustee, whose duty provides him with standing to sue in his representative capacity, the collection agent’s accountability should clothe him with a similar standing and authority.

This argument, however, is fatally flawed. The trustee’s standing to sue arises out of its legal title to the trust res. See Palmer v. Hartford National Bank & Trust Co., 160 Conn. 415, 425, 279 A.2d 726 (1971). “The trustee has a title (generally legal title) to the trust property, usually has its possession and a right to continue in possession, and almost always has all the powers of management and control which are necessary to make the trust property productive and safe. Any wrongful interference with these interests of the normal trustee is therefore a wrong to the trustee and gives him a cause of action for redress or to prevent a continuance of the improper conduct. Although the beneficiary is adversely affected by such acts of a third person, no cause of action inures to him on that account.” Bogert, Trusts and Trustees (2d Ed. Rev.) § 869, p. 87.

Similarly, the assignee of a chose in action may sue in his own name because he stands in the shoes of the assignor. Leonard v. Bailwitz, 148 Conn. 8, 13, 166 A.2d 451 (1960); State v. Parker, 112 Conn. 39, 51, 151 A. 325 (1930); Wiser v. Clinton, 82 Conn. 148, 152, 72 A. 928 (1909). Furthermore, the trustee of an express trust and an assignee of a chose in action have been given the statutory right to sue in their own respective capacities. General Statutes §§ 52-106, 52-118. We conclude that the plaintiff in the present case did not have standing to bring the present action.

There is no error.

In this opinion the other judges concurred.

       It should be noted that the trial court incorrectly characterized this response as a “general denial.” A general denial, as exemplified by Practice Book Form 105.2, is a single simple statement in which the defendant denies all of the allegations of a complaint. In contrast, a specific or special denial speaks to a single allegation or a particular paragraph of the complaint.

       Our conclusion is supported by the analogous situation of consumer collection agents who are expressly prohibited from suing on behalf of creditors in the case of consumer debts. General Statutes § 42-131 (a).


text:
    Genevieve Dombroski v. City of Hartford
    (3597)
    Dupont, C. J., Hull and Bokden, Js.
    Argued October 1
    decision released October 29, 1985

      Lisa Silvestri, assistant corporation counsel, with whom, on the brief, was Richard H. Goldstein, corporation counsel, for the appellant (defendant).

      John C. Heffernan, for the appellee (plaintiff).
   Per Curiam.

The defendant city appeals from the judgment of the trial court for the plaintiff awarding her damages for injuries which resulted from a fall on a defective sidewalk. The court issued a detailed and exhaustive memorandum of decision finding all the necessary facts in favor of the plaintiff. We find no error.

The defendant’s first claim, that the court erred in admitting without proper foundation two photographs of the particular defect in the sidewalk, is without merit. The plaintiff testified that the photographs accurately depicted the condition of the sidewalk at the point at which she fell. See Tripp v. Anderson, 1 Conn. App. 433, 435, 472 A.2d 804 (1984). The defendant’s remaining claims of error do no more than attack the trial court’s factual findings, which are not clearly erroneous. See Fukelman v. Middletown, 4 Conn. App. 30, 31, 492 A.2d 214 (1985).

There is no error.


text:
    Raymond Breen et al. v. Department of Liquor Control et al.
    (2141)
    Dupont, C. J., Hull, Borden, Spallone and Bieluch, Js.
    Decision released October 29, 1985
   Per Curiam.

On September 25, 1984, this court reversed a Superior Court decision which had dismissed the plaintiffs’ appeal from a decision of the department of liquor control. Breen v. Department of Liquor Control, 2 Conn. App. 628, 481 A.2d 755 (1984). On November 7, 1984, the Supreme Court granted the defendants’ petitions for certification. Breen v. Department of Liquor Control, 194 Conn. 808, 483 A.2d 1098 (1984). On October 1,1985, the Supreme Court granted motions for judgment filed by the defendants. The defendants claimed in their motions that Public Acts 1985, No. 85-361, which became effective on June 27, 1985, rendered the issues in this case moot. The orders of the Supreme Court granting those motions are identical and read as follows: “[T]he judgment of the Appellate Court is set aside and the matter is remanded to the Appellate Court with direction to affirm the trial court’s judgment dismissing the plaintiffs’ appeal.” Pursuant to and in conformity with those orders, the matter is remanded to the trial court with direction to dismiss the plaintiffs’ appeal.


text:
    Belle Camperland, Inc. v. Terrance J. Rock et al.
    (3335)
    Spallone, Daly and Bieluch, Js.
    Argued October 11
    decision released October 29, 1985

      Joseph P. Fasi filed a brief for the appellant (plaintiff).

      Neil F. Murphy, Jr., for the appellee (defendant Rock Brothers Tires, Inc.).
   Per Curiam.

There is no error.


text:
    State of Connecticut v. Ralph Sheldon
    (4050)
    Dupont, C. J., Hull and Borden, Js.
    Argued October 4
    decision released November 5, 1985

      Ralph Sheldon, pro se, the appellant (defendant).

      James M. Bernardi, assistant state’s attorney, for the appellee (state).
   Per Curiam.

The defendant appeals from his conviction by the court of the infraction of traveling unreasonably fast in violation of General Statutes § 14-218a.

The defendant’s principal claim on appeal is that the court erred in denying him a jury trial. The only penalty authorized for an infraction is a fine not exceeding ninety dollars. General Statutes § 51-164m (c). There is no right to trial by jury in criminal actions where the maximum penalty is a fine of ninety-nine dollars or a sentence of thirty days, or both. General Statutes § 54-82b (a). This statute does not violate the Connecticut constitution or the United States constitution. State v. Wheeler, 37 Conn. Sup. 693, 435 A.2d 372 (1981).

We have carefully considered the defendant’s two other claims of error and find them to be without merit.

There is no error.


text:
    Mary Grabarz v. Leonard H. Waleski et al.
    (3540)
    Dupont, C. J., Hull and Borden, Js.
    Argued October 1
    decision released November 5, 1985

      Randy L. Cohen, for the appellant (named defendant).

      Alan J. Tyma, for the appellee (plaintiff).
   Per Curiam.

The defendant appeals from the judgment of the trial court establishing the plaintiffs title to a one-seventh interest in certain real property. The trial court found that title was conveyed to the plaintiff by means of an instrument dated June 27, 1976. The instrument lacked the acknowledgment required by General Statutes § 47-5. The court found, however, that this defect was remedied by a curative act. See Spec. Acts 1983, No. 83-7, § 12. The defendant claims that the trial court erred in finding that the defective instrument was validated by the curative act. We find no error.

The defendant’s argument rests upon the fact that the June, 1976 instrument, “giving” the plaintiff her interest in the real estate in question, was recorded on the same date as another document dated August, 1979, purporting to “leave” to the plaintiff the same property. At oral argument, the defendant’s counsel conceded that had the later document not been recorded, there would be no basis for an appeal. The defendant contends that these documents, read together, raise an issue of the donor’s intent, and that they evidence the donor’s desire to devise property to the plaintiff. Therefore, the defendant claims, the curative act does not apply.

The recording date of the instruments has no logical relation to the donor’s intent. The documents were not recorded by the donor, having been recorded after her death. The trial court’s finding that the donor intended to convey real property was not clearly erroneous. Spatola v. Spatola, 4 Conn. App. 79, 82, 492 A.2d 518 (1985); Branigan v. Cohen, 3 Conn. App. 580, 581, 490 A.2d 1019 (1985).

There is no error.

       Leonard H. Waleski was sued individually and as administrator of the estate of Cecilia N. Waleski. The word defendant is used in this opinion to refer to him in both capacities.


text:
    Theresa Savenelli v. First National Supermarkets, Inc.
    (3543)
    Dupont, C. J., Hull and Borden, Js.
    Argued October 1
    decision released November 5, 1985

      Bonn A. Swift, for the appellant (defendant).

      Wesley W. Horton, with whom was Anthony G. Apicella, for the appellee (plaintiff).
   Per Curiam.

The issue of this appeal is whether, on the particular facts of the case, the trial court erred in allowing counsel for the plaintiff to begin closing argument in the absence of counsel for the defendant.

The plaintiff sought to recover for injuries sustained as a result of a fall in front of the defendant’s supermarket. At the trial, after the parties had rested, the court informed counsel that closing arguments would begin promptly at 10 a.m. the next day. The next morning, the defendant’s counsel attended a pretrial conference in the same courthouse, which delayed his arrival in the courtroom. The trial court waited approximately sixteen minutes for the defendant’s counsel, and then instructed the plaintiff’s counsel to begin his summation. Counsel for the defendant entered the courtroom approximately four minutes later and immediately requested that the summation be transcribed. At the time the court reporter began transcribing the argument, the plaintiff’s counsel was describing the allegations of the complaint. The jury returned a verdict for the plaintiff.

The defendant’s counsel moved for a mistrial on the basis that his client was prejudiced by the trial court’s instruction to the plaintiff’s counsel to begin his final argument in the absence of the defense counsel. This motion was denied. The defendant later moved for a new trial on the same grounds. This motion was likewise denied. The defendant appeals from the denial of these two motions.

This appeal does not arise out of the denial of a timely motion to set aside the verdict. Such a motion “is essential for a full review of claims of error . . . .” Pietrorazio v. Santopietro, 185 Conn. 510, 515, 441 A.2d 163 (1981); see Practice Book § 3063. In the absence of such a motion, this court’s review is limited to “plain error.” Finley v. Aetna Life & Casualty Co., 5 Conn. App. 394, 397, 499 A.2d 64 (1985); Geer v. First National Supermarkets, Inc., 5 Conn. App. 175, 177, 497 A.2d 999 (1985).

It is the defendant’s burden to demonstrate that the trial court’s conduct constituted plain error. The trial court has inherent authority to regulate the trial of cases before it. See In re Mongillo, 190 Conn. 686, 690-91, 461 A.2d 1387 (1983). The record indicates that the trial court sent a clerk who located the defendant’s counsel and alerted him that argument was about to begin.

An appellate court is bound by the record and cannot consider claims that remarks of counsel made during final argument may have been prejudicial where those remarks were not recorded, and there has been no attempt to reconstruct them. See Gilhuly v. Karazulas, 4 Conn. App. 440, 442, 495 A.2d 1077 (1985). Furthermore, the trial court characterized the unrecorded remarks as “not remarkable, just sort of an introductory basis.” The defendant has failed to make any substantial showing of error or prejudice.

There is no error.


text:
    Anna M. Sanchez v. Forty’s Texaco Service, Inc.
    (3139)
    Dupont, C. J., Borden and Bieluch, Js.
    Argued October 2
    decision released November 5, 1985

      AnnaM. Sanchez, pro se, for the appellant (plaintiff).

      Sheldon A. Rosenbaum, for the appellee (defendant).
   Per Curiam.

This is an action for conversion of the plaintiffs automobile by the defendant. The plaintiff appeals from the judgment of the trial court in favor of the defendant. The critical issue on appeal is whether the trial court’s finding that the plaintiff abandoned the car is clearly erroneous. We find no error.

The defendant is a service station which performed limited warranty work on the plaintiff’s car at the request of Danbury Dodge, Inc. (Danbury), which had sold it to the plaintiff. Danbury paid the defendant for its work, and thereafter went out of business. Ultimately, the defendant auctioned the car for storage charges which it claimed had accrued long after the completion of the work.

The trial court found the following facts: The plaintiff’s husband located the car at the defendant’s premises where he had a discussion with the defendant’s personnel about a warranty for the defendant’s work. The defendant did not extend any warranty on its repairs, and told the plaintiff’s husband to take up that issue with Danbury. The defendant offered the car to the plaintiff’s husband, since it had completed the repairs and had been paid. The plaintiff and her husband failed to take the car and abandoned any interest in it. The defendant did not convert the car. Furthermore, the court found, the plaintiff failed to prove the value of the car at the time of the alleged loss. The court rendered judgment for the defendant.

The critical issue raised on appeal by the plaintiff is whether the court erred in finding abandonment. Abandonment of personal property such as a car requires “ ‘an intention to abandon or relinquish accompanied by some act or omission to act by which such an intention is manifested’ ” and is a question of fact; Sharkiewicz v. Lepone, 139 Conn. 706, 707, 96 A.2d 796 (1953); which must stand unless clearly erroneous.

The evidence was in conflict. The court’s finding that the plaintiff abandoned the car was amply supported by the following evidence: The car was sent to the defendant by Danbury with dealer plates on it and without any certificate of registration in it. The defendant looked through the car for identification of its owner without success. The defendant did not know whose car it was and was waiting for it to be claimed. When the plaintiff’s husband came in and said it was his car, the defendant’s representative told him he could have it, but he refused to take it because the defendant would not extend a warranty to him for the repairs. He then left without leaving his name and address. The defendant did not begin to run storage charges on the car until two or three months later. Ultimately, the defendant learned of the plaintiffs ownership of the car, and gave her notice of the proposed auction of the car, but she took no action to challenge or attend the auction.

The trial court’s factual determination of abandonment is supported by the evidence and is not clearly erroneous. This finding is fatal to the plaintiff’s claim of conversion, and is dispositive of her appeal.

There is no error.

       The defendant had asserted a counterclaim for the balance of its storage charges. The trial court did not render judgment on the counterclaim, but the defendant took no further action, and specifically abandoned the counterclaim at oral argument in this court.

       The plaintiff also claims that the court’s finding as to lack of proof of value was erroneous. In view of our disposition of the first issue, we need not reach this claim.


text:
    State of Connecticut v. Bradford Abbott
    (3227)
    Dupont, C. J., Hull and Borden, Js.
    Argued October 4
    decision released November 5, 1985

      Kevin G. Dubay, with whom, on the brief, were Joseph E. Fazzano and Howard A. Nunes, for the appellant (defendant).

      Barbara B. Sacks, law student intern, with whom were Carl Schuman and, on the brief, Rosita M. Creamer, assistant state’s attorneys, for the appellee (state).
   Borden, J.

The defendant appeals from the judgment of his conviction of the crime of possession of marihuana in violation of General Statutes § 21a-279 (c). The conviction followed his conditional plea of nolo contendere which was entered, pursuant to General Statutes § 54-94a, after the trial court, Walsh, J., denied his motion to suppress evidence gathered pursuant to a search warrant, and denied his motion to dismiss. He mounts a tripartite challenge to the warrant: the information contained in the underlying affidavit was unconstitutionally stale; probable cause was lacking under the totality of circumstances test; and the description of the place to be searched lacked constitutional particularity. We discern no merit to the defendant’s claims, whether taken individually or collectively, and find no error.

On June 10,1983, Detectives Wayne Rautenberg and Russell Wood of the Manchester police department applied for a warrant to search 447 Summit Street, Manchester, described as being located on the east side of the street, and as a single family cape house, gold with white trim with a detached garage on its south side. The application stated their belief that marihuana and cocaine were located at the premises, evidence that the crimes of possession of marihuana and possession of cocaine with intent to sell were being committed there. The supporting affidavit of Rautenberg and Wood, dated the same day, stated the following: Rautenberg, a police officer for fourteen and one-half years, had responsibility for conducting narcotics investigations, and had more than four years experience in such investigations, including both undercover and case assignment work. He had conducted numerous investigations leading to the obtaining and execution of search warrants, the seizure of drugs, and the arrest and conviction of the individuals involved. He had attended formal training schools on the subject of conducting narcotics investigations.

Wood, a police officer for five years, had responsibility for conducting narcotics investigations, and had investigated, planned and participated in cases leading to the obtaining and execution of search warrants, the seizure of drugs, and the arrest and conviction of the individuals involved. He had received formal training in narcotics investigations.

In March, 1983, Rautenberg met a confidential informant, identified as C.I. 113, who told him that David McNally was selling cocaine from his residence at 447 Summit Street, Manchester, and that he had seen cocaine there. This informant had provided the state police and Manchester police with information leading to the obtaining of search warrants, the seizure of large quantities of narcotics, and the arrest and conviction of the people involved.

In April, 1983, the Manchester police and the Federal Bureau of Investigation arrested David Chaves for possession of cocaine with intent to sell. Chaves told them that McNally, who lived at 447 Summit Street, Manchester, was selling large quantities of cocaine.

In May, 1983, another reliable, confidential informant, identified as C.I. 116, stated that Robert Schienost was residing at the same address. Schienost was known to Rautenberg and Wood through police intelligence and prior arrests for possession of drugs with intent to sell. C.I. 116 said that between June 7, 1983, and June 10,1983, Schienost approached him and asked if he wanted to buy hashish. The informant saw the hashish at 447 Summit Street and made arrangements to buy some of it. This informant had provided information leading to the obtaining of a search warrant resulting in the seizure of a large quantity of marihuana and the arrest of the person involved.

Rautenberg and Wood had seen vehicles belonging to Schienost and McNally at 447 Summit Street at all hours of the day. They had surveilled the premises periodically and had observed numerous people visiting it for short periods of time.

The warrant authorized the search of the entire premises located at 447 Summit Street, Manchester, and the seizure of marihuana, inter alia. The search executed pursuant to the warrant yielded marihuana in the bedroom of the defendant, one of the occupants of the house.

The defendant first argues that probable cause was lacking because the issuing magistrate was required to disregard, as stale, the statements made by C.1.113, C.I. 116 and Chaves in March, April and May, 1983, those statements being from thirty to ninety days old at the time of the issuance of the warrant. We disagree.

It is true, of course, that proof of probable cause for a search warrant “must be of facts so closely related to the time of the issue of the warrant as to justify a finding of probable cause at that time. Whether the proof meets this test must be determined by the circumstances of each case.” Sgro v. United States, 287 U.S. 206, 210-11, 53 S. Ct. 138, 77 L. Ed. 260 (1932); State v. Carbone, 172 Conn. 242, 250, 374 A.2d 215, cert. denied, 431 U.S. 967, 97 S. Ct. 2925, 53 L. Ed. 2d 1063 (1977).

This does not mean, however, as the defendant urges, that in evaluating the contents of the affidavit the issuing magistrate must completely disregard statements of informants which may be thirty to ninety days old. Even if we assume without deciding that such a delay would be the basis of a valid staleness claim if the statements were all that the magistrate had to rely on, such statements may be considered with the rest of the affidavit as part of the mosaic of probable cause. Other material in the affidavit may supplement and bring down to date the earlier materials; Sgro v. United States, supra, 211; thus giving “reason to believe that those circumstances still exist.” United States v. Steeves, 525 F.2d 33, 38 (8th Cir. 1975), quoting 3 Wright, Federal Practice and Procedure § 662.

Here, in the three days prior to the issuance of the warrant C.1.116 gave fresh, first hand information that Schienost offered to sell him hashish, that the informant saw the hashish at the premises and that he made arrangements to buy it. This information clearly supplemented and revitalized the statements made within the previous ninety days. This information brought those earlier statements down to date and gave reason to believe that drugs were currently being sold at 447 Summit Street.

The defendant’s second argument is that the affidavit failed the totality of the circumstances test articulated by the United States Supreme Court in Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527, reh. denied, 463 U.S. 1237, 104 S. Ct. 33, 77 L. Ed. 2d 1453 (1983). This argument is without merit.

In analyzing the sufficiency of the affidavit, we give “substantial deference . . . to the decision of the judicial authority that issued the warrant.” State v. Bellamy, 4 Conn. App. 520, 525, 495 A.2d 724 (1985), quoting State v. Heinz, 193 Conn. 612, 618, 480 A.2d 452 (1984). We do not deem it necessary to go through the affidavit item by item. Suffice it to say that, applying the totality of the circumstances test, and reading the affidavit in a common sense manner; State v. Heinz, supra, 617; we conclude that the affidavit passes muster. It gave “objective evidence of a fair probability that proscribed activity” was occurring at the premises; id.; and that drugs were located there. State v. Martin, 2 Conn. App. 605, 613, 482 A.2d 70 (1984), cert. denied, 195 Conn. 802, 488 A.2d 457 (1985), 472 U.S. 1009, 105 S. Ct. 2706, 86 L. Ed. 2d 721.

The defendant’s final argument is that the warrant was invalid because it did not describe the place to be searched with the specificity required by the fourth amendment to the United States constitution. This argument is premised on the defendant's assertion, which does not appear in the warrant application or affidavit, that the defendant’s bedroom, which was searched, was a separate and distinct part of the house under his separate control. From this assertion, he reasons that a more specific description than the street address, location and description of the house was required. This argument is without merit.

The particularity clause of the fourth amendment requires that no warrants issue except those “particularly describing the place to be searched . . . . ” U.S. Const., amend. IV. This standard is met “if the description is such that the officer with a search warrant can with reasonable effort ascertain and identify the place intended.” Steele v. United States No. 1, 267 U.S. 498, 503, 45 S. Ct. 414, 69 L. Ed. 757 (1925); United States v. Alexander, 761 F.2d 1294, 1300 (9th Cir. 1985).

The defendant made no claim for a hearing under Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978), to establish that Rautenberg or Wood had made any knowingly, intentionally or recklessly false allegation in the affidavit which was necessary to the finding of probable cause. In the absence of a showing under Franks v. Delaware, supra, sufficient to trigger a hearing, subsequent evaluation of the search warrant by either the trial court or this court “must be based solely on the facts and circumstances presented in the affidavit when application for the warrant was made. United States v. Gibbons, [607 F.2d 1320, 1327 (10th Cir. 1979)]. Thus information which may be known to the affiant or which is subsequently revealed at a later hearing, but which was not submitted to the issuing official, is irrelevant. Aguilar v. Texas, 378 U.S. 108, 109 n.1, 84 S. Ct. 1509, 12 L. Ed. 2d 723 [1964].” United States v. Rios, 611 F.2d 1335, 1347 (10th Cir. 1979).

Where the warrant describes the premises to be searched as a multiple unit dwelling, such as an apartment building, the warrant must specify which unit is to be searched; United States v. Higgins, 428 F.2d 232 (7th Cir. 1970); unless the affidavit establishes probable cause as to all the units. 1 LaFave & Israel, Criminal Procedure § 3.4 (e). Where, however, the warrant describes the premises as a single family dwelling, it is valid as to the entire premises. Even if the police discover upon entry that the premises contain different living units, they are not then required to obtain a new warrant. United States v. Santore, 290 F.2d 51 (1959), aff'd in relevant part, 290 F.2d 74 (2d Cir. 1960) (rehearing en banc), cert. denied, 365 U.S. 834, 81 S. Ct. 749, 5 L. Ed. 2d 744 (1961). Where several persons occupy premises in common rather than individually, a single warrant describing the entire premises is valid and will justify a search of the entire premises. 2 LaFave, Search and Seizure § 4.5.

This warrant and affidavit described the premises as a single family residence occupied by at least two persons, McNally and Schienost. The documents did not preclude the possibility of additional, unnamed occupants living there. Nor did they describe the premises as containing multiple living units. Thus, the search of the entire premises, including the defendant’s bedroom, pursuant to the warrant was valid.

There is no error.

In this opinion the other judges concurred.

       The search also yielded other material which is not involved in this appeal.

       The state claims that this argument is unavailable to the defendant in this court because he did not raise it in the trial court and made no showing that it is reviewable under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973). This is an inaccurate reading of the trial court record. The defendant’s trial court brief on his motion to suppress, which we have examined, adequately raises this issue.

       Neither in the trial court nor in this court did the defendant make, brief or argue any claim that the affidavit should be gauged by the stricter, two-pronged Aguilar-Spinelli test now mandated under some circumstances by the Connecticut constitution. See State v. Kimbro, 197 Conn. 219, 496 A.2d 498 (1985) (warrantless search). Nor has the defendant claimed that State v. Kimbro, supra, applies to a search pursuant to a warrant. Indeed, at oral argument in this court, which was held some six weeks after State v. Kimbro, supra, was decided, he confined his argument to a Gates analysis and conceded that he was not asking us to apply State v. Kimbro, supra. We therefore decide the case on the theory on which it was tried and decided in the trial court and briefed and argued in this court. Travelers Ins. Co. v. Hendrickson, 1 Conn. App. 409, 411 n.3, 472 A.2d 356 (1984).


author: Hull, J.

text:
    Walter P. Doolittle et al. v. Town of Preston
    (3585)
    Dupont, C. J., Hull and Borden, Js.
    Argued October 4
    decision released November 12, 1985

      Frank N. Eppinger, for the appellants (plaintiffs).

      Frank A. Manfredi, for the appellee (defendant).
   Hull, J.

The dispositive issue in this case is whether a vote by the defendant town to “abandon” part of a road was invalid because the word “abandon” was used throughout the proceedings rather than the word “discontinue” which is used in the controlling statute, General Statutes § lSa-49. We conclude that the trial court was correct in concluding that the town’s use of the wrong term did not invalidate the proceedings and, therefore, we find no error.

The plaintiffs brought an action under General Statutes § 13a-103 seeking a court order to require the defendant to repair, maintain, alter and improve, and to remove encroachments from, Doolittle Road in Preston. Doolittle Road runs east and west and is intersected at its easterly end by Ross Road and at its westerly end by Miller Road. The plaintiff Doolittle’s driveway intersects Doolittle Road approximately at its midpoint. The other plaintiffs either own property on or use Doolittle Road. The defendant accepted responsibility for that portion of Doolittle Road running from Ross Road west to the Doolittle driveway, and the court ordered the defendant to repair that section of the road. The court did not order the defendant to repair or maintain the portion of Doolittle Road running westerly from the Doolittle driveway to Miller Road, on two grounds: (1) in 1966, Doolittle Road westerly from the Doolittle driveway to Miller Road had been validly discontinued as a town road by the board of selectmen and the town meeting in accordance with General Statutes § 13a-49; and (2) that portion of the road had been abandoned by public nonuser. The plaintiffs appeal only from that portion of the judgment concerning the westerly portion of Doolittle Road. The plaintiffs claim that the court erred: (1) when it decided that the selectmen and special town meeting of the town of Preston lawfully discontinued the westerly portion of Doolittle Road in accordance with General Statutes § 13a-49, notwithstanding the fact that the selectmen voted and the town meeting approved a decision to “abandon” the road; (2) when it decided that the westerly portion of Doolittle Road had been abandoned by public nonuser notwithstanding allegedly substantial evidence before the court of recent public use thereof; and (3) when it decided not to order the defendant to repair and maintain the westerly portion of Doolittle Road at its own expense and not to award damages to the plaintiffs.

There is no dispute concerning the underlying facts as found by the trial court. In 1966, the selectmen of Preston decided to discontinue certain unimproved roads before people began to build upon them as they were too expensive to maintain. On August 24, 1966, the selectmen voted to recommend to a town meeting to be held on August 30,1966, that certain roads including the westerly portion of Doolittle Road be abandoned. The town meeting voted the abandonment of the list of roads and the selectmen voted their approval of this action on September 2, 1966.

The trial court concluded that as long as the statutory method of discontinuing a road was strictly followed, thus providing the members of the town the opportunity to vote on the selectmen’s recommendation, it mattered not that the word “abandon” was used rather than “discontinue.” The plaintiffs claim no prejudice from the use of the wrong word in that any of them was misled by the town’s actions. Rather, in a supreme example of exalting form over substance, they seek to take advantage of the erroneous word to invalidate the town’s 1966 actions.

The plaintiffs strenuously argue that statutory discontinuance and common law abandonment are different things. In doing so, they beg the question. There is no doubt that the two methods of terminating a town’s responsibility for a road differ. “A highway may be extinguished by direct action through governmental agencies, in which case it is said to be discontinued; or by nonuser by the public for a long period of time with the intention to abandon, in which case it is said to be abandoned.” Greist v. Amrhyn, 80 Conn. 280, 285, 68 A. 521 (1907). The statutory method of discontinuing a highway must be strictly pursued. Id.; New London v. New York, N.H. & H. R. Co., 85 Conn. 595, 601, 84 A. 114 (1912). “In discontinuing a highway the selectmen act as agents of the law, and can exercise no powers except such as are conferred by statute. Simmons v. Eastford, 30 Conn. 286, 288 [1861]. Their action, and the action of the town approving it, therefore, should be formal and definite, so as to give parties who may be aggrieved an opportunity to apply to the court for the relief which is provided by statute.” Greist v. Amrhyn, supra, 288.

The plaintiffs make no claim that the defendant’s action was not formal and definite or that anyone was deprived of the statutory right of appeal by the use of the wrong word. Clark v. Cornwall, 93 Conn. 374, 106 A. 347 (1919), is persuasive authority to uphold the validity of the town’s actions. There, the selectmen had warned a special town meeting to take action to “discontinue” portions of a certain highway. “Pursuant to this warning and notice, the town meeting passed the following vote: ‘Voted, The vote upon dosing the road or highway mentioned in the foregoing notice was taken as follows: 66 No, 67 Yes. Said vote was declared passed by the Chairman of the meeting.’ Thereafter the selectmen of Cornwall reported, in writing, to the town, that ‘pursuant to the vote of the town’ they had discontinued two certain portions of highway within the town, describing the portions as contained in the said notice of the town meeting.” (Emphasis added.) Id., 376.

The precise issue involved in the present case was never raised in Clark. The issue there was whether the town could later rescind such a vote. Nevertheless, the court’s analysis of the validity of the original “discontinuance” is controlling.

The selectmen in Clark acted under General Statutes (1918 Rev.) § 1442, the predecessor of General Statutes § 13a-49, which required action by the selectmen manifested by a writing signed by them discontinuing the highway and the approbation of the town in the discontinuance. The Clark court stated: “The town could not manifest its approbation of the discontinuance of this road in any more pronounced way than by its vote of discontinuance. The vote of Cornwall was of the precise act of discontinuance of the selectmen . . . .” (Emphasis added.) Clark v. Cornwall, supra, 378-79. This case makes it crystal clear that the incantation of a legal “abracadabra” is not necessary to terminate a town road. The essence of the thing accomplished controls.

That this conclusion makes common sense is supported by normal usage which often equates the terms “discontinue” and “abandon.” Webster’s Third New International Dictionary defines the word “discontinue” in definition number two as follows: “to abandon or terminate by a discontinuance or by other legal action.”

We conclude that the action of the selectmen and of the town was formal and definite so as to give parties in interest and the public notice of the action taken. The statutory method of discontinuance was strictly followed so that the defendant’s discontinuance of the westerly end of Doolittle road was valid.

In view of our conclusion, it is unnecessary to consider the plaintiff’s other claims of error.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 13a-49 provides in pertinent part: “The selectmen of any town may, subject to approval by a majority vote at any regular or special town meeting, by a writing signed by them, discontinue any highway . ... ”

       The trial court was perhaps echoing the sentiment of Richard Cardinal Cushing who, in describing Fidel Castro, said: “When I see a bird that walks like a duck and swims like a duck and quacks like a duck, I call that bird a duck.” New York Times, March 1, 1964.