author: FLYNN, J.

text:
    FRANCINE M. GALLO-MURE v. JAMES TOMCHIK ET AL.
    (AC 22606)
    Schaller, Flynn and West, Js.

      Argued May 30
    officially released August 19, 2003

      Brian P. Daniels, for the appellants (defendants).

      Vincent N. Amendola, Jr., for the appellee (plaintiff).
   Opinion

FLYNN, J.

The defendants, James Tomchik, Maureen Tomchik, Frank Bisecco and Betsy Bisecco, appeal from the trial court’s judgment determining that the plaintiff, Francine M. Gallo-Mure, holds a prescriptive easement over the defendants’ premises. The defendants argue on appeal that the court acted improperly in two ways: (1) its factual finding of “implied consent” in its first articulation was inconsistent with its judgment granting a prescriptive easement; and (2) the court’s finding of continuous use of the property was clearly erroneous in light of the evidence presented that a fence had blocked the plaintiffs access from 1971 through 1986. We are not persuaded by either claim and therefore affirm the judgment of the trial court.

The following facts are relevant to this appeal. The plaintiff has lived on her property at 15 Annawon Avenue in West Haven since May, 1971. The defendants all reside on Ocean Avenue, which runs perpendicular to Annawon Avenue. The Biséceos moved to 185 Ocean Avenue in 1996, and the Tomchiks moved in next door at 183 Ocean Avenue in 1999. These two lots are adjacent to each other and are bordered on the south by Long Island Sound. The defendants share a common driveway that allows them to access Ocean Avenue. This driveway runs behind the rear of the plaintiffs property on Annawon Avenue. The underlying claim ensued when the Tomchiks began constructing a fence that would have blocked the plaintiffs access to the driveway.

The plaintiff claimed that she had prescriptive easement rights to drive on the defendants’ driveway and to park her vehicles on it because she had used the property openly, visibly, continuously and uninterrupted for more than fifteen years under a claim of right. The plaintiff sought and was granted a temporary injunction until such time as the matter could be resolved.

At the ensuing trial to the court, the plaintiff testified that she had been using the driveway as a right-of-way to access the rear of her property and to park her vehicles since she moved to Annawon Avenue in 1971. The plaintiff testified that she had never sought nor received permission from any of the Ocean Avenue property owners and denied the allegation that a fence had ever blocked her from accessing the right-of-way. The defendants presented testimony and evidence, which the plaintiff disputed, that the plaintiff had sought and received permission from some of the owners of the Ocean Avenue properties, and that a fence had existed until the plaintiff commenced renovations on her property in 1986.

The court made the following findings. First, the court found that the plaintiff had begun using the right-of-way immediately upon moving to the property in 1971 and that this use was made without objection from her then neighbor, Robert Squeglia, one of the predecessors in title to the Tomchiks. Second, the court found that the plaintiff “at all times” indicated that she had a right to use the driveway for access and that “no one was going to stop her.” Third, the court found that the plaintiff had sufficiently proved that her use of the right-of-way was continuous by a preponderance of the evidence, despite the evidence presented by the defendants that a fence formerly had extended across the rear of the plaintiffs property, blocking her access to the right-of-way. On the basis of its findings, the court concluded that the plaintiff had shown by a fair preponderance of the evidence that she had made use of the common driveway in an open, visible, continuous and uninterrupted manner in excess of fifteen years under a claim of right. However, the court found that the plaintiff did not meet her burden of proof in establishing the elements of a prescriptive right to park her vehicles on the driveway, stating in particular that “[w]hen asked to move [her] vehicles, [she] did so even to the extent of her husband parking his vehicle on Annawon Avenue when asked to remove it.” Posttrial, the defendants filed a motion for articulation of the memorandum of decision. The court subsequently issued two articulations, one of which contains the basis of one of the defendants’ claimed errors.

I

We first address the defendants’ claim that the court’s factual finding of implied consent in its first articulation was inconsistent with its ultimate finding of a prescriptive easement. The court’s finding read: “As for the issue of implied consent, the testimony of Mr. Squeglia and [Donna] Buonfiglio indicates that there was an implied consent on their part. In fact, both Squeglia’s and Buonfiglio’s testimony showed an acquiescence as to her use of their property. Mr. Squeglia even asked her to participate in the cost of snow removal since she was making use of the property.” (Emphasis added.) The defendants argue that the court’s use of the term “implied consent” requires a reversal of the court’s decision because this term is inconsistent with the legal conclusion that a prescriptive easement existed. We conclude that the court’s findings of fact were not legally or logically inconsistent with its conclusion that a prescriptive easement existed and, therefore, its conclusion was not improper.

There is a dispute among the parties regarding the standard of review for the defendants’ claim. The defendants argue that we must use plenary review to determine whether the trial court’s conclusion that a prescriptive easement existed is legally and logically correct and finds support in the facts set forth in the memorandum of decision. The plaintiff argues that the establishment of a prescriptive easement is a question of fact, and, therefore, the clearly erroneous standard of review is appropriate. The plaintiff is correct that, generally, “[w]hether a right-of-way by prescription has been acquired presents primarily a question of fact for the trier after the nature and character of the use and the surrounding circumstances have been considered.” (Internal quotation marks omitted.) Faught v. Edgewood Corners, Inc., 63 Conn. App. 164, 168, 772 A.2d 1142, cert. denied, 256 Conn. 934, 776 A.2d 1150 (2001). However, except as to the defendant’s claims as to a fence interrupting the necessary fifteen year continuous use to establish a prescriptive easement, the court’s factual findings in the present case are not challenged by either party. The only issue raised by the defendants’ first claim is whether the trial court’s conclusion that a prescriptive easement existed was inconsistent with its subordinate factual findings. Therefore, we apply the following standard of review to the first claim. “[Findings of fact] that there had been an open, visible, continuous and uninterrupted use for fifteen years under a claim of right, as found by the trial court, are not reviewable unless the subordinate facts on which they are based are legally and logically inconsistent or are insufficient to support the conclusion that they exist.” Wadsworth v. Zahariades, 1 Conn. App. 373, 376, 472 A.2d 29 (1984).

We begin our analysis by setting forth the elements necessary to establish a prescriptive easement. “[A] prescriptive easement is established by proving an open, visible, continuous and uninterrupted use for fifteen years made under a claim of right. . . . The standard of proof that is required is a fair preponderance of the evidence.” (Citation omitted.) Gioielli v. Mallard Cove Condominium Assn., Inc., 37 Conn. App. 822, 829, 658 A.2d 134 (1995). “To establish an easement by prescription it is absolutely essential that the use be adverse. It must be such as to give a right of action in favor of the party against whom it has been exercised. . . . The use must occur without license or permission and must be unaccompanied by any recognition of [the right of the owner of the servient tenement] to stop such use.” (Citation omitted; internal quotation marks omitted.) Kelley v. Tomas, 66 Conn. App. 146, 159, 783 A.2d 1226 (2001). “Use by express or implied permission or license cannot ripen into an easement by prescription.” Phillips v. Bonadies, 105 Conn. 722, 725, 136 A. 684 (1927).

After reviewing the memorandum of decision, the court’s articulations, the record and the parties’ briefs, we have reached three conclusions. First, the word “consent” is not synonymous with the word “permission” in its legal application to easements. Second, there is a cognizable difference between permissive use of property and “passive acquiescence” by owners in the use of their property. Third, and finally, the court did not find that the plaintiff’s use was permissive, but rather, it found that such use was with the acquiescence of the owners of the servient tenement, which, under our law, does not negate a claim of right. Therefore, the court’s judgment that there was a prescriptive easement is not illogical or inconsistent with a finding of implied consent.

In examining this issue, we first address whether “permission” equates to “consent” under the law. Although in everyday use, the words are often used interchangeably, our case law uses “permission” when reviewing prescriptive easement claims. To defeat a finding of use as a claim of right, which is required to establish a prescriptive easement, the word “permission” is invariably used. See Hoffer v. Swan Lake Assn., Inc., 66 Conn. App. 858, 860, 786 A.2d 436 (2001). “Permission” generally is preceded by the term “license” in prescriptive easement cases. See id. However, the word “consent” is not listed with these two terms. The defendants improperly have equated “implied consent” with “permission” without citing to one instance in which “implied consent” specifically was used as a legal standard to defeat a prescriptive easement.

The word “consent” has been used in the legal analysis of claims of adverse possession to negate the necessary element of hostile possession. See, e.g., Goldman v. Quadrato, 142 Conn. 398, 402, 114 A.2d 687 (1955); Top of the Town, LLC v. Somers Sportsmen’s Assn., Inc., 69 Conn. App. 839, 842, 797 A.2d 18, cert. denied, 261 Conn. 916, 806 A.2d 1058 (2002). However, the legal standards for adverse possession and prescriptive easement claims are not interchangeable. Top of the Town, LLC, concerned an adverse possession claim and, therefore, is not directly controlling on the present case. However, even if it were controlling, it nevertheless is factually and legally distinguishable from the present case. In Top of the Town, LLC, we used the term “consent” while setting forth the standard for establishing adverse possession rights. In that decision, we indicated that the possession must be “without consent.” Top of the Town, LLC v. Somers Sportsmen's Assn., Inc., supra, 842. However, the term was not used in lieu of “permission,” and was not modified by “express or implied.” Further, we acknowledged that a claim of adverse possession was distinct from a prescriptive easement claim by stating: “As with a prescriptive easement, implied permission by the true owner is not adverse.” Id., 845. The use of “implied consent” in the first articulation is therefore not legally controlling over the present prescriptive easement claim. The Top of the Town, LLC, case is also factually distinguishable from the present case in that it concerned a situation in which the plaintiff had obtained express permission to use the property from a landowner who subsequently died. The continued use of the property after the landowner’s death indicated implied permission and not adverse use under a claim of right. Id. In contrast, the court in the present case found that no express permission had ever been given to the plaintiff.

The law is clear that “permission” defeats a claim to a prescriptive easement. However, focusing on the court’s use of the term “implied consent” in its articulation will not, by itself, lead us to a determination that the court reached an illogical or inconsistent conclusion. We next look to the legal distinction between the terms “permission” and “acquiescence” and determine whether the court’s factual findings support a finding of one or the other based on its use of the term “implied consent.”

There is a distinction made in our case law between the terms “permission” and “acquiescence” in the context of a prescriptive easement claim. On this point, the following excerpt from. Phillips v. Bonadies, supra, 105 Conn. 726, is particularly inuminating: “In the very nature of [prescriptive easement] case[s] .... every such user is by permission of the owner of the servient tenement in the sense that he permits it to continue without exercising his right to terminate it. A permissive user therefore as distinguished from one exercised under a claim of right is not to be inferred from mere passive acquiescence. The facts and circumstances must be such as to warrant the inference of a license exercised in subordination to the rights of the owner of the soil and which he may revoke at any time.” (Emphasis added.) As the Phillips court admonished, permissive use should not be confused with “passive acquiescence.” The two terms have vastly different impacts. If there is permission granted to use the contested property, then the user of the land is acting in subordination to the ownership rights of the servient landowner, and the claim of prescriptive easement arising out of his use is negated. In contrast, passive acquiescence does not indicate such subordination and permits the finding of a prescriptive easement. Id. For this reason, Phillips emphasized the importance of an indication of subordinate conduct in determining whether there was permissive or acquiescent conduct.

Subordinate conduct is the “essential quality” in determining whether a claim of right has been established. Kelley v. Tomas, supra, 66 Conn. App. 159. The essence of the determination of whether the claim to the property was made “as of right” is therefore whether the individual claiming the prescriptive easement acknowledged the ownership rights of the landowner in any way. Consequently, the court’s findings of fact regarding whether the plaintiff acted in subordination to either the defendants or the defendants’predecessors in title is extremely persuasive to determine whether the court’s use of “consent” was consistent with permissive, rather than adverse, use of the property. The court considered the surrounding facts and circumstances and explicitly found that they did not indicate “permission” and that the plaintiff was not subordinate in her use of the right-of-way. In contrast, the court also found that the plaintiff did act in subordination to the defendants concerning the right to park vehicles on the driveway, defeating her claim of right to do so. Finally, it is clear that the court used the term “implied consent” in its first articulation to mean “passive acquiescence,” as indicated by its findings in the memorandum of decision and given the context of the use of the term in the articulation.

In its memorandum of decision, the court discussed the “claim of right” requirement, noting that the plaintiff made use of the right-of-way “from the very beginning.” The court also found it notable that the plaintiff al all times indicated that she had a right to use the right-of-way to access her property and that “no one was going to stop her.” (Emphasis added.) These findings illustrate that the couit credited the evidence that the plaintiff used the right-of-way as if it were her own property, which is the primary indication that the use was not permissive. Although the court did not mention “acquiescence” in the memorandum of decision, its finding was clear — the use was adverse.

The court’s holding that the plaintiff had no prescriptive right to park her cars on the driveway is also significant. The court found that the plaintiff had not demonstrated a claim of right to park her cars on the driveway. The court explained that the plaintiff and her husband moved their vehicles on the servient landowner’s request, even to the extent of parking on another street. In contrast, when the plaintiff was threatened with blocked access to the right-of-way, she immediately claimed that no one would stop her from using it. The court relied on the plaintiffs subordinate conduct in refusing to find the existence of one of her claimed prescriptive rights. The fact that the court drew such a distinction indicates that this conduct, or lack thereof, was paramount in its finding of a prescriptive easement.

We now look to the language and context of the court’s first articulation. The court stated preliminarily: “As [far as] any permission being granted or implied, it was more [that] they never objected to her use of their property to gain access to the rear of her property.” (Emphasis added.) The court explained further that the plaintiff consistently had asserted her rights over the property, noting specifically her testimony that she told one of her former neighbors that she did not need permission because she had been using the driveway since she moved onto the property. It was only after the court completed its discussion of permission that it referred to “implied consent,” which it deemed an “issue.” The fact that these issues were explained separately is a strong indication that the court attached different meanings to the words “consent” and “permission.”

It is also significant that the court discussed the “acquiescence” of the plaintiffs former neighbors immediately after mentioning that their testimony evinced implied consent. This indicates that the court used “implied consent” in reference to the neighbors’ acquiescence insofar as the court emphasized previously that they did not object to the plaintiffs use of the property, though it is clear they could have.

The court used the fact that Squeglia asked the plaintiff to contribute to the cost of snow removal from the property to indicate such acquiescence. At first blush, this may seem to evince subordination, as the defendants have argued. However, it strengthens the plaintiffs argument that she was using the property under a claim of right. Squeglia did not condition the plaintiffs use on the contribution for snow removal, nor did the plaintiff contribute more money than either of the two property owners. The defendants argue that the fact that the property owners included her in the snow removal agreement indicated that they were implicitly granting her permission to use the driveway. However, where an easement has been created on a common driveway, “[i]t is appropriate that both parties contribute to the maintenance of the driveway because both parties contribute to the wear on the driveway.” Beneduci v. Valadares, 73 Conn. App. 795, 808, 812 A.2d 41 (2002). The record also indicates that this “agreement” was an informal understanding between the users of the driveway and in no way implicated any permission or subordination. This agreement indicates that there was no objection to the plaintiffs use, but it does not illustrate permission, either express or implied. In fact, Buonfiglio testified that she “never gave [the plaintiff] permission. [The plaintiff] was always parking there, but we automatically split the cost of the snow removal because we all used the driveway.” This agreement is more consistent with acquiescence — knowledge without objection. The court’s reference to “acquiescence” in its articulation, followed immediately by the example of the snow removal agreement, indicates that the court did not find that the agreement constituted implied permission.

There is one final indication that the court intended “implied consent” to equate with “passive acquiescence.” The court issued a subsequent articulation following the issuance of the first articulation. In this articulation, the court defined the terms “implied” and “permission,” noting that permission is defined as “a license to do a thing, an authority to do an act . . . .” The articulation further stated that the plaintiff “at no time acknowledged that anyone had a right to terminate her use of the subject property.” In issuing this second articulation, the court reaffirmed its position that the plaintiff did not act in subordination to the property owners and, in fact, never recognized any individual’s right to terminate her use of the property.

The court’s finding of “implied consent” was not inconsistent with its holding that a prescriptive easement had been established. The court’s factual findings demonstrate that the court equated what it called “implied consent” with passive acquiescence, as indicated by the court’s repeated statements that the plaintiff acted as if she had the right to use the property as her own, as well as by the nature and context of the term’s use in the articulation.

II

We now address the defendants’ second claim on appeal, that is, whether the trial court improperly found that the plaintiff met her burden of proving continuous use of the right-of-way by a preponderance of the evidence. The dispute regarding whether the use of the right-of-way was continuous hinged on the purported existence of a fence. The defendants contend that a fence extended across the rear boundary of the plaintiffs property from 1971 until “at least mid-1986,” blocking her access to the right-of-way. The plaintiff testified that the fence had existed, but did not prevent her access to the right-of-way. The defendants argue that the court’s finding on this claim was clearly erroneous. In light of the evidence presented at trial, we disagree.

The standard of review for claims challenging the soundness of a court’s factual finding of continuous, uninterrupted use by the plaintiff in prescriptive easement cases is well settled: “Whether the requirements for such a right have been met in a particular case presents a question for the trier of facts . . . .” (Internal quotation marks omitted.) Simonds v. Shaw, 44 Conn. App. 683, 688, 691 A.2d 1102 (1997). “When the factual basis of the court’s decision is challenged, the reviewing court must determine whether the facts are supported by the evidence or whether they are clearly erroneous.” Faught v. Edgewood Corners, Inc., supra, 63 Conn. App. 168. “A finding is clearly erroneous, when, even though the finding is supported by some evidence, the reviewing court, on the basis of all the evidence, is left with the definite and film conviction that a mistake has been committed by the fact finder.” (Internal quotation marks omitted.) Mastronardi v. Infante, 34 Conn. App. 584, 591, 642 A.2d 84, cert. denied, 231 Conn. 907, 648 A.2d 154 (1994). When employing this standard of review, this court “cannot retry the facts or pass upon the credibility of the witnesses.” (Internal quotation marks omitted.) East Haddam Fishing & Game Club, Inc. v. Ciucias, 4 Conn. App. 214, 215, 493 A.2d 281 (1985), quoting Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 220, 435 A.2d 24 (1980).

The court was presented with the following evidence. The plaintiff consistently testified that no fence had ever blocked her access to the driveway on the defendants’ property. Buttressing the plaintiffs testimony was the testimony of her former neighbors, Squeglia and Buonfiglio, who had lived next door to the plaintiff prior to the defendants. Both neighbors testified that there had never been a fence blocking the plaintiffs access to Ocean Avenue and that she had used the driveway continuously since they had resided in the area (both had lived there since at least 1980). The plaintiff also offered the testimony of her neighbor, Gertrude Harris, as well as the testimony of her husband, Guy Mure, who both confirmed that the fence had not extended past the rear of the plaintiffs property during the contested time period.

In rebuttal, the defendants offered testimony from Rique Lydem, the plaintiffs former husband, who stated that a fence had in fact blocked the plaintiffs access (and his own) to Ocean Avenue from 1971 until he left the premises in 1974. He also testified that his brother had tripped over this fence while chasing a burglar that he had seen across the street. Squeglia’s former wife, Claudia Donovan, also testified that the fence had existed until the plaintiff removed it in the course of renovating her property in 1987. The defendants also offered the testimony of a surveyor who interpreted some field notes and a field detail drawing of the plaintiffs property as evidence that a fence had expended behind the property, blocking the plaintiffs access. The defendants argue that this evidence is conclusive because it is the only evidence contemporaneously created and because it is completely unbiased. However, the plaintiff argued that this evidence was misleading, noting that the surveyor testifying about the document had not personally conducted the survey and had also admitted to a discrepancy between the field notes and the map. The defendants also presented photographic exhibits depicting the remnants of the fence and some various metal poles on the relevant properties.

In Connecticut, to obtain an easement by prescription, the use must be continuous for a period of at least fifteen years. Zavisza v. Hastings, 143 Conn. 40, 45, 118 A.2d 902 (1955). The court found that the plaintiff had established by a preponderance of the evidence that her use of the right-of-way was continuous and uninterrupted for at least fifteen years. In the court’s first articulation, it explained that although it did not dispute the documentary evidence, it gave greater weight to the testimony of Squeglia and Buonfiglio, noting that Squeglia had resided on Ocean Avenue for more than forty years. Because the surveyor had no personal knowledge of the property as it existed at that time, there was no reason for the court to find his testimony dispositive. The court also explained that it gave little weight to the testimony of Lydem, because he is the plaintiffs former husband, or Donovan, because she had testified against the plaintiff on multiple occasions.

It was the court’s proper function to weigh the evidence presented by both parties and to make findings of fact. See Hoffer v. Swan Lake Assn., Inc., supra, 66 Conn. App. 861. “[I]t is the trier’s exclusive province to weigh the conflicting evidence, determine the credibility of witnesses and determine whether to accept some, all or none of a witness’ testimony.” (Internal quotation marks omitted.) Greene v. Perry, 62 Conn. App. 338, 343, 771 A.2d 196, cert. denied, 256 Conn. 917, 773 A.2d 943 (2001). The court was better able to determine issues of credibility because it observed the demeanor of witnesses, and we have but the dry record of their testimony. Sufficient evidence existed on which the court reasonably could have based its decision. We conclude that the court’s finding that the plaintiffs use of the property was continuous and uninterrupted for at least fifteen years was not clearly erroneous.

The judgment is affirmed.

In this opinion the other judges concurred.

       In their answer to the plaintiffs complaint, the Tomchiks denied the plaintiffs allegations and filed counterclaims sounding in trespass and unjust enrichment. The Biséceos also denied the plaintiffs allegations and filed counterclaims sounding in fraud, trespass, quiet title and unjust enrichment. On appeal, the two sets of defendants were represented by the same counsel, although they were represented separately at trial. The defendants also challenged the trial court’s denial of the trespass and quiet title counterclaims. Because we find that the trial court did not act improperly in finding that a prescriptive easement existed, we do not reach the counterclaims.

       The defendants presume in their brief, and in fact articulated as such in oral argument, that “implied consent” is the same as “implied permission.” We do not make such an assumption and look at the term in context with the entire articulation and the underlying memorandum of decision.

       The following cases also involve prescriptive easements in which the term “permission” is used: Westchester v. Greenwich, 227 Conn. 495, 501, 629 A.2d 1084 (1993) (“use by express or implied permission or license cannot ripen into an easement by prescription”); Aksomitas v. South End Realty Co., 136 Conn. 277, 283, 70 A.2d 552 (1949) (“plaintiffs continuous, open user . . . without resort to permission or license from the defendant . . . establishes that this was a user as of right”); Kelley v. Tomas, supra, 66 Conn. App. 159 (“use must occur without license or permission”); Faught v. Edgewood Corners, Inc., supra, 63 Conn. App. 170 (same).

       Prescriptive easements, unlike title gained by adverse possession, do not require exclusive use by the claimant; Francis v. Hollauer, 1 Conn. App. 693, 695-96, 475 A.2d 326 (1984); and the burden ofproof is by preponderance of the evidence rather than by clear and convincing evidence required by adverse possession. Schulz v. Syvertsen, 219 Conn. 81, 91, 591 A.2d 804 (1991).

       “Consent” was used by our Supreme Court in Goldman in the same manner, to set forth the legal standard for adverse possession. See Goldman v. Quadrato, supra, 142 Conn. 402.

       “In Connecticut, although the burden of proof is on the party claiming a prescriptive easement . . . there is no presumption of permissive use to be overcome. ... All that is required is a showing by a fair preponderance of the evidence that the use was adverse.” (Citations omitted.) Reynolds v. Soffer, 190 Conn. 184, 188, 459 A.2d 1027 (1983).


source: Caselaw Access Project

author: BISHOP, J.

license: Public Domain

text:
    NEDZMIJE MAMUDOVSKI v. BIC CORPORATION ET AL.
    (AC 21957)
    Foti, Dranginis and Bishop, Js.

      Argued May 8
    officially released August 19, 2003

      John T. Bochanis, with whom, on the brief, was Thomas J. Weihing, for the appellant (plaintiff).

      Francis P. Alvarez, with whom, on the brief, was Christina Calise Feeny, for the appellee (named defendant).
   Opinion

BISHOP, J.

The plaintiff, Nedzmije Mamudovski, appeals the judgment of the trial court rendered in favor of the defendant BIC Corporation. The plaintiff claims that the court improperly (1) granted the defendant’s motion for summary judgment on her negligence claim set forth in count one of her amended complaint, (2) precluded and limited the testimony of a witness and (3) precluded evidence of the defendant’s obligation under the Workers’ Compensation Act, General Statutes § 31-275 et seq., to provide her light duty work. We affirm the judgment of the trial court in part and reverse it in part.

The following facts and procedural history are pertinent to our discussion of the issues raised on appeal. The plaintiff commenced employment with the defendant in January, 1979, as a production worker. On March 16, 1988, the plaintiff suffered a herniated disc during her employment, for which she filed a workers’ compensation claim. The plaintiff returned to light duty work in July, 1991, with physical restriction orders from her physician, limiting her physical activities at work. The defendant provided the plaintiff with light duty work, but also required her to perform other tasks that she claims were not light duty in nature.

In late 1993, the defendant hired a private investigator to videotape the plaintiff outside of work. On February 9,1994, the plaintiff was summoned to meet with Joseph Costa, the defendant’s human resources manager, who told her that she had been observed on videotape doing activities that were inconsistent with the physical restrictions she had claimed when she returned to work three years earlier. The plaintiff was then discharged for being “dishonest.”

When the plaintiff became upset and began crying after being notified of her discharge, Costa instructed Steven Burgert, the defendant’s manager of health and safety, to escort her to her car. Burgert then followed the plaintiff as she left the meeting to go to the ladies’ room. While there, the plaintiff fainted, hitting her head on the floor. At some point, Burgert went into the bathroom and helped the plaintiff up. He then escorted the plaintiff to a security guard and instructed the guard to take the plaintiff to her car. As she was being escorted, the plaintiff asked the guard where she was and whether her husband was present. The guard answered that she was in the defendant’s parking lot and that her husband was not present. She was then allowed to drive away from the property.

After she left the defendant’s property, driving her motor vehicle, the plaintiff fainted again and her vehicle collided with a telephone pole. As a result, she sustained personal injuries and was hospitalized for five days. The plaintiff claims to have no memory from the time she was walking to her car under escort until she later woke up in the hospital.

The plaintiff brought a three count complaint. The first count, a negligence claim, alleged that the defendant and certain of its employees were negligent in that they escorted her to her car and failed to prevent her from driving when they knew it would not be safe for her to do so. The second count alleged retaliatory discharge in violation of General Statutes § 31-290a, claiming, in essence, that the defendant had terminated her employment in retaliation for her exercising her rights pursuant to the Workers’ Compensation Act. The final count alleged wrongful discharge in violation of public policy as set forth in General Statutes § 31-290a.

Trial was scheduled to commence on March 21, 2001. The court, however, conducted hearings on preliminary issues raised by the parties on March 21, March 27, March 28, April 3 and April 4, 2001, following which the court granted an oral motion for summary judgment made by the defendant concerning the first count of the plaintiffs complaint. After a trial on the remaining two counts, the jury returned a verdict in favor of the defendant. This appeal followed the court’s denial of the plaintiffs motion to set aside the verdict. Additional facts will be set forth as necessary.

I

The plaintiffs first claim is that the court improperly granted the defendant’s motion for summary judgment with respect to her negligence claim. Specifically, the plaintiff challenges the court’s decision on the basis of its finding that an allegation in her second count was a judicial admission that foreclosed her claim of negligence.

“The standard of review of a trial court’s decision to grant a motion for summary judgment is well established. Summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Practice Book § 17-49. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . Our review of the trial court’s decision to grant [a] motion for summary judgment is plenary.” (Citation omitted; internal quotation marks omitted.) Barry v. Quality Steel Products, Inc., 263 Conn. 424, 450, 820 A.2d 258 (2003).

During pretrial hearings, the defendant filed a pleading titled “Motion for Order Confirming [the Plaintiffs] Judicial Admission and Dispensing with Further Proof of Defendants’ Special Defense under [General Statutes § 31-284 (a), workers’ compensation exclusivity].” That motion was, as the court described it, effectively, a motion in limine. The defendant argued that the following allegation contained in paragraph four of the second count of the plaintiffs complaint was a judicial admission that precluded her from proceeding with her negligence claim in count one:

“4. On or about March 1998 and February 9, 1994, the plaintiff was injured during the course of her employment with the defendant.”

The gravamen of the defendant’s claim is that because the plaintiff alleged in her second count that she had been injured in March, 1998, and on February 9, 1994, in the course of her employment, she had no legal right to bring a negligence action (count one) against the defendant for injuries sustained on February 9, 1994, because the filing of a workers’ compensation claim against her employer is an exclusive remedy. After argument on March 27, 2001, the court granted the defendant’s motion, finding that the statement in count two was a judicial admission having bearing on the allegations of count one. On the following day, March 28, 2001, the court entertained and granted an oral motion for summary judgment by the defendant on the first count in the plaintiffs complaint.

The plaintiff challenges the court’s decision to grant summary judgment on several grounds: (1) Practice Book §§ 17-44 and 17-45 prohibited such a result, (2) the allegation in the second count that was found to be a judicial admission did not encompass the injuries described in the first count of the complaint, (3) the allegation at issue was denied by the defendant and could not have been a judicial admission, and (4) the allegation was conclusory and not determinative of the issue of exclusivity of the Workers’ Compensation Act.

A

The plaintiffs first argument is that Practice Book §§ 17-44 and 17-45 prohibit the court from granting a motion for summary judgment in the manner in which it did. She argues that because the defendant made its motion for summary judgment orally, without supporting affidavits, and because the court acted on the motion at that time instead of placing it on the short calendar, she was precluded from adequately responding to the motion and thereby was prejudiced.

The defendant argues that strict adherence to the rules of practice is neither required nor warranted. In addition, the defendant claims that the parties’ memoranda to the court concerning whether the plaintiffs allegation was a judicial admission satisfied any requirement for briefing or argument required by the rules of practice. Further, the defendant argues that the plaintiff waived any objection to the court’s decision because she did not request a continuance and, instead, engaged in argument before the court.

“We review case management decisions for abuse of discretion, giving [trial] courts wide latitude. ... A party adversely affected by a [trial] court’s case management decision thus bears a formidable burden in seeking reversal. ... A trial court has the authority to manage cases before it as is necessary. . . . Deference is afforded to the trial court in making case management decisions because it is in a much better position to determine the effect that a particular procedure will have on both parties. . . . The case management authority is an inherent power necessarily vested in trial courts to manage their own affairs in order to achieve the expeditious disposition of cases. . . . The ability of trial judges to manage cases is essential to judicial economy and justice. . . .

“We will not disturb a trial court’s decision regarding case management unless after carefully examining the factual circumstances of the case, we determine that there was an abuse of discretion. . . . Abuse is not present if discretion is not exercised arbitrarily or wilfully, but with regard to what is right and equitable under the circumstances and the law, and [it is] directed by the reason and conscience of the judge to a just result. . . . And [sound discretion] requires a knowledge and understanding of the material circumstances surrounding the matter . . . .” (Citations omitted; internal quotation marks omitted.) Krevis v. Bridgeport, 262 Conn. 813, 818-19, 815 A.2d 1188 (2003).

In Krevis, the defendant filed a motion in limine on the eve of trial to preclude evidence of punitive damages and attorney’s fees, which the court granted. Id., 815. The plaintiff immediately questioned the nature of the ruling because he believed it was effectively a ruling that a governmental immunity statute applied to the case. Id. The court responded that the statute did apply and that it could make a ruling on the statute’s effect if the plaintiff wanted. Id., 815-16. The plaintiffs counsel requested a recess to confer with his client, which was granted, and returned to ask the court to make a ruling at that time instead of the possibility that it might make such a ruling after days of evidence. Id., 816. The defendant interjected that an oral motion for summary judgment might be an appropriate way to resolve questions of the statute’s applicability. Id. The court acknowledged the irregularity of an oral summary judgment motion, and, after a brief colloquy with the plaintiffs counsel, granted the motion and dismissed the case. Id. The plaintiff appealed, claiming that the court’s grant of the defendant’s oral motion for summary judgment violated the provisions set forth in the rules of practice. Id., 814.

Our Supreme Court held that under the particular circumstances of the case, the court’s action was not improper because the plaintiff had waived compliance with the requirements of the rules of practice. Id., 824. The court reasoned that it previously had “recognized a party’s ability to waive rights authorized by the provisions of the Practice Book.” Id., 823. The court stated that “[t]o determine the presence of waiver, there must be evidence of intelligent and intentional action by the petitioner of the right claimed to be waived. ... It must be shown that the party understood its rights and voluntarily relinquished them anyway. . . . Each case should be considered upon the particular facts and circumstances surrounding that case, including the background, experience and conduct of the party that is waiving its rights.” (Citations omitted; internal quotation marks omitted.) Id.

The Supreme Court then reviewed the transcript and found that the record of discussions between the plaintiffs counsel and the trial court revealed that counsel was well aware of the procedural requirements for summary judgments, and that he knowingly had waived compliance with the provisions of our rules of practice. Id., 823-24. As a consequence, the Supreme Court held that the trial court did not abuse its discretion, as the rules of practice are designed to be liberally construed. Id., 824.

From Krevis, we discern that the requirements of the rules of practice for filing a motion for summary judgment must be followed absent a waiver by the affected party. Our review of the record in this case reveals that not only did the plaintiff not waive the procedural requirements of the rules of practice, but on several occasions during the hearing, voiced objections and stated that the procedural irregularity had prejudiced her ability to respond effectively to the defendant’s oral motion for summary judgment. It is plain from the record that not only did the plaintiff not make a knowing waiver of the procedural requirements of the rules of practice, but that she continuously objected to the court’s actions.

This case is distinguishable from Krevis because in Krevis, the trial court proceeded only after it had explained to the plaintiff the consequences of ruling on an oral motion for summary judgment and had received counsel’s assent to the procedure. Unlike the situation in Krevis, the court here ruled on the defendant’s oral motion for summary judgment over the plaintiff’s continuing objection that she had not been afforded a sufficient opportunity to respond to the motion. Because the court bypassed the procedural requirements of Practice Book §§ 17-44 and 17-45, and did not receive a knowing waiver of those requirements from the plaintiff, it was an abuse of discretion for the court to rule on the defendant’s oral motion for summary judgment. Accordingly, the court’s judgment with respect to count one must be reversed.

B

Although our determination that the court incorrectly granted the defendant’s oral motion for summary judgment effectively disposes of that issue, we reach the plaintiffs claim that the court’s decision was substantively incorrect as well due to the likelihood that the issue will arise again on remand. Although the plaintiff asserts several bases for her claim that the court’s ruling was substantively incorrect, we believe that the question of whether the statement by the plaintiff in count two was, in fact, a,judicial admission is dispositive. We believe that it was not a judicial admission.

Normally, a court’s determination of whether a particular statement made by a party in litigation is a judicial admission involves a factual determination. Harlan v. Norwalk Anesthesiology, P.C., 75 Conn. App. 600, 609, 816 A.2d 719, cert. denied, 264 Conn. 911, 826 A.2d 1155 (2003). In this case, however, the court’s determination involved an inteipretation of the pleadings. “The interpretation of pleadings is always a question of law for the court.” (Internal quotation marks omitted.) Sauerwein v. Bell, 17 Conn. App. 697, 702, 556 A.2d 613, cert. denied, 211 Conn. 804, 559 A.2d 1138 (1989). Thus, we are confronted with a mixed question of law and fact. In such a circumstance, our review is plenary. See Milner v. Commissioner of Correction, 63 Conn. App. 726, 737-38, 779 A.2d 156 (2001).

“Judicial admissions are voluntary and knowing concessions of fact by a party or a party’s attorney occurring during judicial proceedings.” (Internal quotation marks omitted.) Macy v. Lucas, 72 Conn. App. 142, 153, 804 A.2d 971, cert. denied, 262 Conn. 905, 810 A.2d 272 (2002). “They excuse the other party from the necessity of presenting evidence on the fact admitted and are conclusive on the party making them. ... To the extent that they dispense with evidence, they are similar to facts judicially noticed. ... A party is bound by a concession made during the trial by his attorney.” Southington v. Commercial Union Ins. Co., 71 Conn. App. 715, 742, 805 A.2d 76 (2002).

“Factual allegations contained in pleadings upon which the case is tried are considered judicial admissions and hence irrefutable as long as they remain in the case. ... An admission in pleading dispenses with proof, and is equivalent to proof.” (Internal quotation marks omitted.) Kronberg v. New Hampshire Ins. Co., 69 Conn. App. 330, 333, 794 A.2d 561, cert. denied, 260 Conn. 934, 802 A.2d 88 (2002). “A party is bound by a judicial admission unless the court, in the exercise of a reasonable discretion, allows the admission to be withdrawn, explained or modified.” Hirsch v. Thrall, 148 Conn. 202, 206-207, 169 A.2d 271 (1961).

We find merit to the plaintiffs claim that the subject allegation in count two, though factual, was more in the nature of an untutored opinion or conclusion than the recitation of a fact within her knowledge. Indeed, whether an employee is within the course of employment when injured is a factual determination to be made by a workers’ compensation commissioner after sifting all the evidence through a hearing procedure. “The determination of whether an injury arose out of and in the course of employment is a question of fact for the commissioner.” (Internal quotation marks omitted.) Ferrara v. Hospital of St. Raphael, 54 Conn. App. 345, 350, 735 A.2d 357, cert. denied, 251 Conn. 916, 740 A.2d 864 (1999).

For a factual allegation to be held to be a judicial admission, the fact admitted should be one within the speaker’s particular knowledge and one about which the speaker is not likely to be mistaken. “A party’s testimony should be deemed a judicial admission only as to those facts that are ‘peculiarly within his own knowledge and as to which he could not be [mistaken ....’] Pedersen v. Vahidy, 209 Conn. 510, 520, 552 A.2d 419 (1989).” C. Tail, Connecticut Evidence (3d Ed. 2001) § 8.16.3 (b), p. 589. “A conclusive judicial admission, to be binding, must be one of fact and not a conclusion or an expression of opinion. Courts require the statement relied upon as a binding admission to be clear, deliberate and unequivocal.” 4 Jones on Evidence (7th Ed. 2000) § 27:33, p. 526 n.45. That view was put succinctly by the Illinois Appellate Court in Elliot v. Industrial Commission, 303 Ill. App. 3d 185, 187, 707 N.E.2d 228 (1999): “Judicial admissions are defined as deliberate, clear, unequivocal statements by a party about a concrete fact within that party’s knowledge.”

A fair reading of the plaintiffs complaint suggests that she could well have been mistaken in her assertion in count two that her injury on February 9, 1994, occurred in the course of her employment because she alleged in the first count that her injuries on that date occurred after her employment had been terminated. Thus, the very inconsistency of those claims evinces the plaintiffs lack of knowledge of the true facts of her employment status when she sustained injuries on February 9, 1994. Under those circumstances, we do not believe that her statement in count two that she had been injured in the course of her employment was a clear, unequivocal statement of fact within her knowledge. Accordingly, we believe that the court incorrectly deemed the plaintiffs allegation in count two to be a judicial admission. Rather, we believe that the pleading was more in the form of a conclusory allegation by the plaintiff and, as such, should be viewed more as an evidentiary admission that she claimed that she had been injured in the course of her employment. As an evidentiary admission, the plaintiffs allegation should be available to counsel for cross-examination as an inconsistency, but it should not be conclusive on the fact finder, as is the case with judicial admissions.

Having determined that the plaintiffs allegation in count two is not a judicial admission, we need not reach the plaintiffs remaining arguments in that regard.

II

The plaintiffs next claim relates to the counts of the complaint that were submitted to the jury. Here, the plaintiff claims that the court improperly precluded and limited the testimony of a witness who was similarly discriminated against for exercising her rights under the Workers’ Compensation Act. We disagree.

“Our standard of review for evidentiary rulings is as follows. The trial court’s ruling on the admissibility of evidence is entitled to great deference. . . . [T]he trial court has broad discretion in ruling on the admissibility ... of evidence. . . . The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion. . . . Moreover, evidentiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice.” (Internal quotation marks omitted.) State v. Mazzeo, 74 Conn. App. 430, 434, 811 A.2d 775, cert. denied, 263 Conn. 910, 821 A.2d 767 (2003).

“[B]efore a party is entitled to a new trial because of an erroneous evidentiary ruling, he or she has the burden of demonstrating that the error was harmful. . . . When determining that issue in a civil case, the standard to be used is whether the erroneous ruling would likely affect the result. . . . Any testimony in a case that tends of itself or in connection with other testimony to influence the result on a fact in issue is material. If the testimony would tend to affect the verdict of the [trier of fact], it meets the test of materiality.” (Internal quotation marks omitted.) Dubreuil v. Witt, 65 Conn. App. 35, 45, 781 A.2d 503 (2001).

The plaintiff intended to call Arlene Pocevik to testify that Pocevik’s employment had been terminated by the defendant in retaliation for having filed a workers’ compensation claim and that she thereafter was reinstated. On April 3, 2001, the defendant filed a motion in limine to preclude the testimony of that witness, claiming that the testimony would be improper for the purpose of showing a pattern or practice of retaliation by the defendant. The court agreed and precluded that witness’ testimony because the plaintiff had not pleaded that the defendant had engaged in a pattern of discrimination.

On April 10, 2001, at trial, the plaintiff once again attempted to offer Pocevik to testify as to the defendant’s alleged disparate treatment of workers who exercised their rights under the Workers’ Compensation Act. The court again sustained the defendant’s objection and precluded her testimony.

The plaintiff claims, on appeal, that guidance from federal law should lead us to the conclusion that the court acted improperly in precluding Pocevik’s testimony. In response, the defendant argues that because the plaintiff did not plead a pattern of retaliatory discrimination in her complaint, she was precluded from offering evidence on such matter. We agree with the defendant.

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

After reviewing the record, we conclude that the court acted within its discretion in precluding the plaintiffs proffered evidence. The plaintiff offered her witness to testify as to the witness’ experience with retaliation by the defendant for filing a workers’ compensation claim. The purpose of that testimony was to show a pattern of discrimination by the defendant resulting in the termination of the plaintiff. The plaintiff, however, never made pattern allegations in her complaint. Consequently, she properly was precluded from offering evidence to support a claim of a pattern of retaliation. We note, also, that the court offered to allow the plaintiff to amend her pleading to conform to the proffered evidence, but her counsel declined. Under those circumstances, the court did not abuse its discretion in excluding the proffered evidence.

Ill

The plaintiffs final claim is that the court improperly precluded her from introducing into evidence General Statutes § 31-313, Connecticut’s light duty work statute, to demonstrate that the defendant had an obligation to provide light duty work to her if available. We disagree.

At the outset, we note that we review that evidentiary claim to determine whether the court’s ruling was an abuse of discretion. See State v. Mazzeo, supra, 74 Conn. App. 434. During trial, the plaintiff attempted to present § 31-313 to establish that the defendant had a duty to provide her with light duty work. The plaintiff argued that the statute related to her claim that one of the ways in which the defendant retaliated against her for filing her workers’ compensation claim was to not provide light duty work.

The court sustained the defendant’s objection, ruling that by seeking to introduce the provisions of § 31-313, the plaintiff was attempting to advance a new theory of liability not set forth in the pleadings. Additionally, the evidence was excluded as not relevant to those claims fairly encompassed within the pleadings.

We agree with the court’s observation that it is the plaintiffs responsibility to plead any and all theories of recovery in her complaint and that failure to do so will result in the exclusion of evidence relating to any newly advanced theories. See Pergament v. Green, supra, 32 Conn. App. 650. In the second count of her complaint, the plaintiff alleged that her employment had been terminated in violation of § 31-290a in retaliation for her having filed a claim for workers’ compensation benefits. Nowhere in her complaint did she claim that the defendant had discriminated against her by failing to provide light duty work as required by § 31-313. On the basis of our review of the pleadings, we believe that the court acted within its discretion in excluding the plaintiffs proffered evidence.

The judgment is reversed only as to count one of the plaintiffs amended complaint and the case is remanded for further proceedings on that count. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       Steven Burgert and Joseph Costa also were named as defendants. The plaintiff has not pursued an appeal as to those individuals. Consequently, the term “defendant” refers only to BIC Corporation.

       Practice Book § 17-44 provides in relevant part: “In any action, except administrative appeals which are not enumerated in Section 14-7, any party may move for a summary judgment at any time, except that the party must obtain the judicial authority’s permission to file a motion for summary judgment after the case has been assigned for trial. . . .”

       Practice Book § 17-45 provides in relevant part: “A motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like. The motion shall be placed on the short calendar to be held not less than fifteen days following the filing of the motion and the supporting materials, unless the judicial authority otherwise directs. . .

         The following colloquy in relevant part occurred between the parties’ counsel and the court on March 28, 2001:
      “The Court: Okay, counsel, after conference in my chambers, have — and my discussion over the procedural aspects of what has occurred thus far, I indicated — there was an indication that an oral motion for summary judgment was to be presented today? . . .
      “[Defense Counsel]: Your Honor, the [defendant] willmovefor — will move for summary judgment on the first count of the revised complaint. That count alleges — it states a cause of — alleges negligence, and given the court’s ruling yesterday on the defendant’s motion for an order confirming the— the plaintiffs judicial admission and dispensing with further proof of the defendant’s special defense, under the workers’ compensation exclusivity provisions, we move for summary judgment at this time on the first count, the negligence claim.
      “The Court: ... did you want to be heard?
      “[Plaintiff Counsel]: Yes, Your Honor, with respect to the oral motion being made for the first time at twelve — well, it’s a little bit — a couple of minutes before twelve, today, March 28.1 would object to such motion.
      “We were called in for trial on this matter, and we’re here for trial on this matter; they would need the court’s permission to file it. Since this has been assigned for trial, I would object to it. The Practice Book requires fifteen days, minimum, before it gels placed on the short calendar.
      “The Court: With regard to the issue of court permission, I’ve invited the motion, so, obviously, it has — the motion has been made with the court’s permission.
      “[Plaintiffs Counsel]: Okay. So, the court has granted permission then, is that right?
      “The Court: Yes.
      “[Plaintiffs Counsel]: Okay. With respect to that, then, again, fifteen days, pursuant to § 17-45 of the Practice Book, fifteen days is the requirement and the wording says, ‘shall not be held less than fifteen days’; it doesn’t say ‘may.’
      “With respect to § 17-47 of the Practice Book, it indicates that in addition, continuances may be granted to object to the motion for summary judgment. With respect to the merits of the claim, I’ve orally and a brief, two page, written — during lunch break, I prepared, just with respect to the merits of this claim, which they’re moving for summary judgment on. The claim which they’re moving for summary judgment on was yesterday morning, March 27, they filed a motion for order, confirming what they allege was a judicial admission and dispensing with further proof of their special defense under the exclusivity of the Workers’ Compensation Act. At no point in time did they ask for any type of judgment on that. I’ve objected to the motion as best I could with the time period of yesterday. . . .
      “The Court: Okay. Ordinarily, a motion for summary judgment, although it may be filed at any time, there is certain lead time that is provided for in the Practice Book and also that it is to be — the form of the motion is to be in writing.
      “The court believes that it has the inherent power to oversee the efficient trial of issues before it. It believes that this is the most efficient means of accomplishing that objective, although some of the provisions may not be strictly adhered to.
      “I’ve heard no prejudice asserted by the plaintiff because we have not observed any of the procedural provisions of the summary judgment rule. I don’t think there are any, from what I understand it to be, understand the claims here to be.
      “It should be observed that this court has invited the parties to suggest appropriate procedures to accomplish what was done yesterday, and that was a ruling on the motion in limine by the defendant ....
      “The court made its finding on the record yesterday, as a result of written memoranda that had been supplied to the court, at its request, and oral argument which lasted approximately the whole day, and the court felt that both sides not only had ample time to argue the merits of their respective positions, but had ample notice of the nature of the claims that were being made so as to prepare their respective arguments, and these arguments were prepared.
      “There was no claim that either side needed more time to make their arguments with regard to that issue until after the issue was decided. I think if you’re going to claim that you don’t have enough time to argue, the time to make that claim is before argument is engaged, not after the argument is over and the decision has been made.
      “So, I think that although some of the provisions of the rules have not been strictly observed, that to do — to strictly observe those rules in this instance would be exalting form over substance, and therefore the court has elected to address the summary judgment that has been made and as I have indicated, to invite it so that, procedurally, it can accomplish what it did — attempted to accomplish yesterday and that is to terminate the negligence action for the reasons indicated yesterday on the record yesterday. . . .
      “For all of those reasons, for the reasons I’ve indicated yesterday, the motion for summary judgment, presented by the [defendant] orally this morning, now this afternoon, is granted. . . .
      “[Plaintiffs Counsel]: Your Honor?
      “The Court: Yes, I’m sorry? Did you want to say something?
      “[Plaintiffs Counsel]: Yes, just in response, Your Honor—
      “The Court: I wasn’t inviting a response. ... You’ve had an opportunity

        to present your case. You’ve indicated your objection, I respectfully disagree with your objections for the reasons I’ve indicated on the record.”

       The following colloquy took place between the court and the plaintiffs counsel:
      “The Court: Well, number one, counselor, I think that [the defendant’s counsel] is correct in that he’s saying that you are attempting to change the theory upon which you intend to prove your case at the eleventh hour. I’ve said it all along here that we are talking about treatment as opposed to retaliation, and you are telling me that’s exactly what these two witnesses are going to talk about, how their situation is different, how there’s a pattern of discrimination here or a pattern of retaliation, and so therefore the defendant must read up. You don’t say that in your pleadings. Now, you want to amend your pleadings to say that?
      “[Plaintiffs Counsel]: Of pattern and practice, Your Honor?
      “The Court: Yes. Do you want to amend your pleadings now to say that?
      “[Plaintiffs Counsel]: I don’t think it’s necessary.
      “The Court: Okay. All right. Now, you have just said to me that you have pled everything you need to plead in order to get this evidence in. I respectfully disagree with you. . . . I’ve given you an opportunity to amend, you’ve declined to take that opportunity because you say your pleadings are sufficient as is. I respectfully disagree. And I’ll therefore hold that if these witnesses, if they are offered for the purpose of showing pattern and practice of discrimination or a pattern of retaliation, cannot do that. And pattern of other lands of discrimination, they cannot do that.”

       General Statutes § 31-313 (a) provides in relevant part: “(1) Where an employee has suffered a compensable injury which disables him from performing his customary or most recent work, his employer at the time of such injury shall transfer him to full-time work suitable to his physical condition where such work is available, during the time that the employee is subjected to medical treatment or rehabilitation or both and until such treatment is discontinued on the advice of the physician conducting the same or of the therapist in charge of the rehabilitation program or until the employee has reached the maximum level of rehabilitation for such worker in the judgment of the commissioner under all of the circumstances, whichever period is the longest. . . .”

       Specifically, the court stated: “This doesn’t put anybody on notice that you’re claiming that the reason for this — this retaliatory action was because she made a claim for regular duty. That is not the claim that was expressed in your complaint, nor in this trial brief, and I’m not going to allow it at this late stage. . . . I’m not allowing it because you did not plead that as a theory of recovery here. ... It goes to that issue. It does. Okay? Unfortunately, you did not plead it.”


author: DRANGINIS, J.

text:
    ALDEN RICHARDS v. HELEN RICHARDS
    (AC 21796)
    Lavery, C. J., and Schaller and Dranginis, Js.

      Argued October 17, 2002
    officially released August 19, 2003

      Louise T. Truax, with whom were Sandra Lax and, on the brief, Daniel J. Roberts, for the appellant (defendant).

      Wesley W. Horton, with whom were Thomas D. Colin and, on the brief, Samuel V. Schoonmaker TV, for the appellee (plaintiff).
   Opinion

DRANGINIS, J.

This appeal concerns the propriety of the trial court’s rulings on two postjudgment motions in this marital dissolution action. On appeal, the defendant, Helen Richards, claims that the court improperly (1) opened the judgment of dissolution pursuant to a motion to set aside the judgment that was filed by the plaintiff, Alden Richards, and (2) denied her motion for contempt. We agree and, accordingly, reverse the judgment of the trial court and remand the case for further proceedings.

The following facts are relevant to our resolution of the defendant’s appeal. The court dissolved the parties’ marriage on July 10, 1998. A separation agreement between the parties was incorporated in the court’s decree. Counsel represented both parties when they entered into the separation agreement. The agreement required, among other things, that the plaintiff make monthly payments of alimony and child support, and included a property settlement in the form of lump sum payments over time that were based on his annual income.

On October 26, 1999, the defendant filed a revised motion for contempt, alleging that the plaintiff had failed to pay certain financial obligations as required by the parties’ separation agreement. One year later, on October 17, 2000, the plaintiff filed a motion to open the judgment of dissolution on the ground of mutual mistake as to the “cash disbursements” defined in paragraph 4.2 of the separation agreement. After concluding that the definition of “cash disbursements” in the separation agreement was “unworkable,” the court granted the plaintiffs motion to open and denied the defendant’s motion for contempt, finding that the plaintiff had not wilfully violated the provisions of the agreement. The defendant subsequently filed this appeal.

I

The defendant first claims that the court improperly granted the plaintiff’s motion to open the judgment of dissolution, which was filed more than four months after the rendering of the dissolution judgment. In support of that claim, the defendant specifically argues that in the absence of a finding of mutual mistake, the court lacked the power to open the judgment.

The plaintiff counters that the four month limitation period contained in General Statutes § 52-212a and Practice Book § 17-4 (a) does not apply because there was a mutual mistake of fact by both parties as to the definition of “cash disbursements.” The plaintiff also argues that although he filed a motion to open, the court treated his motion as a motion to clarify the separation agreement, which motion has no time restriction and, therefore, may be filed at any time. Relying on the holding in AvalonBay Communities, Inc. v. Plan & Zoning Commission, 260 Conn. 232, 241, 796 A.2d 1164 (2002), that the court has inherent power to vindicate prior judgments, the plaintiff maintains that the court “acted within its discretion by rendering a decision that corrected the application of the separation agreement so that it was consistent with the parties’ intentions.” We agree with the defendant.

Initially, we must determine whether we have jurisdiction to hear that portion of the defendant’s appeal concerning the court’s opening of the judgment of dissolution. That determination turns on whether the appeal is taken from a final judgment. Ordinarily, the granting of a motion to open a prior judgment is not a final judgment, and, therefore, not immediately appealable. See General Statutes §§ 51-197a and 52-263; Practice Book § 61-1; see also Cardona v. Negron, 53 Conn. App. 152, 156, 728 A.2d 1150 (1999). Our Supreme Court, however, has carved out an exception to that rule where a colorable claim is made that the trial court lacked the power to open a judgment. See Solomon v. Reiser, 212 Conn. 741, 747, 562 A.2d 524 (1989). The defendant’s claim “puts us in the anomalous position of having to decide the [defendant’s] principal claim on this appeal ... in order to decide whether we have jurisdiction to entertain the appeal.” Connecticut Light & Power Co. v. Costle, 179 Conn. 415, 419, 426 A.2d 1324 (1980). Because we conclude that the court lacked authority to open the judgment, we have jurisdiction to consider the defendant’s claim.

We begin our analysis by noting that the parties entered into a separation agreement that became the judgment dissolving their marriage. “A stipulated judgment is not a judicial determination of any litigated right. ... It may be defined as a contract of the parties acknowledged in open court and ordered to be recorded by a court of competent jurisdiction. ... [It is] the result of a contract and its embodiment in a form which places it and the matters covered by it beyond further controversy. . . . The essence of the judgment is that the parties to the litigation have voluntarily entered into an agreement setting their dispute or disputes at rest and that, upon this agreement, the court has entered judgment conforming to the terms of the agreement.” (Internal quotation marks omitted.) Magowan v. Magowan, 73 Conn. App. 733, 736-37, 812 A.2d 30 (2002), cert. denied, 262 Conn. 934, 815 A.2d 134 (2003), quoting Gillis v. Gillis, 214 Conn. 336, 339-40, 572 A.2d 323 (1990).

“Appellate jurisdiction is limited to appeals from judgments that are final. Solomon v. Keiser, [supra, 212 Conn. 745], An order opening a judgment is ordinarily not a final judgment for purposes of appeal except where the issue raised is the power of the court to open. Id., 746-48. The judgment rendered in an action for dissolution of a marriage is final and may not be opened or set aside unless a motion to do so is filed, pursuant to Practice Book 326 [now § 17-4], within four months from the date of its rendition. Daly v. Daly, 19 Conn. App. 65, 67, 561 A.2d 951 (1989). After that period, absent waiver, consent or other submission to jurisdiction, a court lacks the power to modify or correct a judgment other than for clerical reasons. Misinonile v. Misinonile, 190 Conn. 132, 134, 459 A.2d 518 (1983). A judgment rendered may be opened after the four month limitation if it is shown that the judgment was obtained by fraud, in the absence of actual consent, or because of mutual mistake. See Celanese Fiber v. Pic Yarns, Inc., 184 Conn. 461, 466, 440 A.2d 159 (1981); Kenworthy v. Kenworthy, 180 Conn. 129, 131, 429 A.2d 837 (1980); see also Sparaco v. Tenney, 175 Conn. 436, 437-38, 399 A.2d 1261 (1978).” Hill v. Hill, 25 Conn. App. 452, 454-55, 594 A.2d 1041, cert. denied, 220 Conn. 917, 597 A.2d 333 (1991).

It is well recognized that our courts have inherent power to open, correct and modify judgments, but that authority is restricted by statute and the rules of practice. Batory v. Bajor, 22 Conn. App. 4, 8, 575 A.2d 1042, cert. denied, 215 Conn. 812, 576 A.2d 541 (1990). A motion to open a judgment is governed by General Statutes § 52-212a and Practice Book § 17-4. Section 52-212a provides in relevant part: “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. . . .” Practice Book § 17-4 states essentially the same rule.

The plaintiff argues that the parties did not have a mutual understanding of the definition “cash disbursements.” To the contrary, the defendant maintains that she was not mistaken as to the definition and, therefore, any mistake was unilateral and not mutual. In its memorandum of decision, the court found merely that the definition of “cash disbursements” in the separation agreement was “unworkable.” The court did not make an express finding of mutual mistake. “The kind of mistake [however] that would justify the opening of a stipulated judgment under § 52-212a must be mutual; a unilateral mistake will not be sufficient to open the judgment. Solomon v. Keiser, 22 Conn. App. 424, 427, 577 A.2d 1103 (1990); see also Acheson v. White, 195 Conn. 211, 215-16, 487 A.2d 197 (1985); Celanese Fiber v. Pic Yarns, Inc., [supra, 184 Conn. 466] . . . .” Magowan v. Magowan, supra, 73 Conn. App. 741. Because there was no finding of mutual mistake as to the definition of “cash disbursement” or any other basis established by § 52-212a, the defendant is correct in challenging the court’s authority to open the judgment. We therefore have jurisdiction to hear the claim and conclude that the court lacked authority to open the judgment.

II

Next, the defendant claims that the court improperly denied her motion for contempt. Specifically, the defendant claims that the court improperly construed certain provisions of the parties’ separation agreement concerning cash disbursements and, on the basis of that incorrect construction, failed to find the plaintiff in contempt for not complying with the provisions of the dissolution judgment regarding alimony, child support and property division payments. In response, the plaintiff contends that he could not comply with the terms of the dissolution agreement because it is ambiguous on its face. We agree with the defendant.

We begin by addressing the appropriate standard of review. “A finding of contempt is a question of fact, and our standard of review is to determine whether the court abused its discretion in failing to find that the actions or inactions of the [party] were in contempt of a court order. ... To constitute contempt, a party’s conduct must be wilful. . . . Noncompliance alone will not support a judgment of contempt.” (Citation omitted; internal quotation marks omitted.) Prial v. Prial, 67 Conn. App. 7, 14, 787 A.2d 50 (2001). Here, the defendant’s argument specifically attacks the factual findings that the court relied on to conclude that the plaintiff was not in contempt. “Therefore, in addition to reviewing the propriety of the court’s decision as a general matter, we first review the trial court’s factual determinations. In so doing, we apply our clearly erroneous standard, which is the well settled standard for reviewing a trial court’s factual findings. ... A factual finding is clearly erroneous when it is not supported by any evidence in the record or when there is evidence to support it, but the reviewing court is left with the definite and firm conviction that a mistake has been made.” (Citation omitted; internal quotation marks omitted.) Legnos v. Legnos, 70 Conn. App. 349, 353 n.2, 797 A.2d 1184, cert. denied, 261 Conn. 911, 806 A.2d 48 (2002).

Some further elaboration of certain facts is necessary to our resolution of the defendant’s claim. Since 1991, the plaintiff has been the president, majority stockholder and chief operating officer of Space Machine Advisors (company). The company provides risk management and insurance services to the satellite industry. The plaintiffs 1998 federal income tax return indicated that he had a gross income of $2,702,500. The separation agreement contemplated that plaintiffs “cash disbursements” from the company could be as much as $4 million per year. At the time he testified during the hearing on the motion to open, the plaintiff alleged that his business had lost its major client, creating a precipitous decline in revenue, and that prior thereto, his earnings generally consisted of abase salary of $130,000 and a bonus of 5 percent, which bonus was paid to him when a satellite was launched. The plaintiff testified that from the bonus earnings, he deducted payments to affiliate brokers abroad and business operating expenses. He further testified that the company charged his officer loan account to pay the business and personal expenses he incurred in between satellite launches. After a successful launch, those loan accounts were retired. It is those loan payments as they apply to the definition of “cash disbursements” that are at the heart of the defendant’s claim.

In its memorandum of decision, the court found that the definition of “cash disbursements” contained in paragraph 4.2 of the separation agreement was further refined in paragraph 4.1, which concerns the officer’s loans. The court rejected the defendant’s argument that by its plain and unambiguous terms, the definition of cash disbursements in paragraph 4.2 should be read to include the officer’s loans made by the company to pay the plaintiffs personal expenses. As a consequence, the court found that “[b]orrowing money from the corporation does not produce taxable income for the plaintiff, nor would sharing the various cash disbursements create a deduction for [the plaintiff] or taxable income to [the defendant].” The court further found that “[t]he cash disbursements can be read to mean that they are to be divided between the parties according to the schedules when they become taxable income.” In short, the court concluded that the timing of the tax event had a bearing on the definition of “cash disbursements.” In its articulation, the court concluded that the provisions of article four of the separation agreement were inconsistent and hence are “unworkable.” Our review of the evidence before the court, namely, the parties’ separation agreement, leads us to conclude that the court’s findings were clearly erroneous, and were not logical and amply supported by the evidence.

A fair reading of the parties’ separation agreement shows that the plaintiff had to make alimony, child support and lump sum property division payment s from the cash disbursements he received. Paragraph 4.2 of the dissolution agreement clearly defines “cash disbursements” as “any income actually received by the Husband and any personal expenses paid on behalf of the Husband by Space Machine Advisors, any subsequent business or subsidiary thereof or by virtue of any employment, except for (1) usual, reasonable and actual business expense reimbursements; (2) any amounts paid by the Husband to any taxing authority in satisfaction of the joint 1997 income tax liability in the approximate amount of $395,000; and (3) dividends declared in 1998 for the purpose of repaying loans presently due to his company. ‘Cash disbursements’ shall include earned income and, in particular, all income from wages, salaries, bonuses, consulting or other fees, commissions, director’s fees, dividends from employment, and compensation by reason of past, present or future employment, in whatever form received, including payments in cash or in kind, stock or otherwise.” (Emphasis added.) That language makes clear that company funds were used to pay for personal expenses and therefore should be included as cash disbursements. As stated previously, the dissolution agreement explicitly provides only three exceptions to cash disbursements: “(1) usual, reasonable and actual business expense reimbursements; (2) any amounts paid by the [defendant] to any taxing authority in satisfaction of the joint 1997 income tax liability in the approximate amount of $395,000; and (3) dividends declared in 1998 for the purpose of repaying loans presently due to his company. ...” None of those exceptions applies to the officer’s loans.

Because we conclude that the court’s underlying findings were clearly erroneous, we conclude that the court’s ultimate finding that the plaintiff did not wilfully fail to comply with his obligations under the separation agreement was not established by sufficient evidence. Therefore, we conclude that the court did not act within its discretion.

The judgment is reversed and the case is remanded with direction to deny the plaintiffs motion to open the judgment and to conduct a hearing on the defendant’s motion for contempt.

In this opinion the other judges concurred.

       The proceedings leading to the dissolution of marriage commenced in November, 1996, and there were seventy-three docket entries prior to the dissolution on July 10, 1998. Additionally, during the postjudgment phase of the proceedings, there have been ninety-six docket entries. The parties have been represented by counsel during all of those proceedings.

       Subsequently, the defendant filed a motion to reargue. After hearing argument on whether the defendant should be allowed to reargue, the court denied the motion. She then filed a motion for articulation. That motion was granted and, in its articulation, the court restated its conclusion that the separation agreement was “unworkable.”

       The plaintiff filed his motion to open on the ground of mutual mistake. The parties agree that there was no claim of accident, consent, duress or fraud.

       We note that the plaintiff, in his brief, cites several cases for the proposition that the court’s decision should be treated as a motion to clarify rather thanamotionto open the dissolutionjudgment. See, e.g Santoro v. Santoro, 70 Conn. App. 212, 217-18, 797 A.2d 592 (2002); Jaser v. Jaser, 37 Conn. App. 194, 200-204, 655 A.2d 790 (1995); see also Harrison v. Harrison, 94 Conn. 280, 283, 108 A. 800 (1920). Those decisions, however, do not support the plaintiffs argument because the record discloses that the court did not clarify or reform the portion of the original agreement concerning the definition of “cash disbursement.”

       On October 3, 2002, we ordered the parties to come to oral argument prepared to give reasons, if any, why the appeal should not be dismissed for lack of an appealable final judgment. Both parties complied with our order.

       Practice Book § 17-4 (a) provides in relevant part: “Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, any 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 succeeding the date on which notice was sent ...” That language has been incorporated into Practice Book § 25-38.

       Furthermore, a review of the court’s memorandum of decision reveals that the court did not reform or clarify the agreement. Moreover, the defendant argues, and we agree, that the plaintiff is not entitled to reformation of his contract with the defendant. Connecticut law has firmly established that “[Reformation is appropriate in cases of mutual mistake — that is where, in reducing to writing an agreement made or transaction entered into as intended by the parties thereto, through mistake, common to both parties, the written instrument fails to express the real agreement or transaction. . . . [Reformation is also available in equity when the instrument does not express the true intent of the parties owing to the mistake of one party . . . .” (Internal quotation marks omitted.) Derby Savings Bank v. Oliwa, 49 Conn. App. 602, 604, 714 A.2d 1278 (1998). There was no finding of mistake to warrant the reformation of the contract sued on, and, therefore the settlement agreement does not come properly within the equity jurisdiction of 1he trial court.

       “The denial of a motion for contempt is a final judgment for purposes of appeal. Potter v. Board of Selectmen, 174 Conn. 195, 196, 384 A.2d 369 (1978); Tobey v. Tobey, 165 Conn. 742, 745, 345 A.2d 21 (1974); Willocks v. Klein, 38 Conn. App. 317, 320, 660 A.2d 869 (1995).” Gilbert v. Gilbert, 73 Conn. App. 473, 487, 808 A.2d 688 (2002) (Flynn, J., dissenting).

       The company is a subchapter S corporation, which allows the business to pass through its income and losses to the plaintiff. All the earnings of the corporation during the taxable year must be reported as individual income by the stockholders. See Outdoor Development Corp. v. Mihalov, 59 Conn. App. 175, 180 n.7, 756 A.2d 293 (2000); see also 26 U.S.C. § 1361 et seq.

       Paragraph 4.2 of the separation agreement states in relevant part: “For purposes of this Agreement ‘cash disbursements’ shall be defined to mean any income actually received by the Husband and any personal expenses paid on behalf of the Husband by Space Machine Advisors, any subsequent business or subsidiary thereof or by virtue of any employment, except for (1) usual, reasonable and actual business expense reimbursements; (2) any amounts paid by the Husband to any taxing authority in satisfaction of the joint 1997 income tax liability in the approximate amount of $395,000; and (3) dividends declared in 1998 for the purpose of repaying loans presently due to his company. ‘Cash disbursements’ shall include earned income and, in particular, all income from wages, salaries, bonuses, consulting or other fees, commissions, director’s fees, dividends from employment, and compensation by reason of past, present or future employment, in whatever form received, including payments in cash or in kind, stock or otherwise. . . .”

       Paragraph 4.1 of the separation agreement provides:
      “Commencing as of the First Day of August, 1998, in accordance with paragraph 4.5 below, the Husband shall pay to the Wife, during his lifetime, until her death, remarriage, or July 31, 2013, whichever event shall first occur, the following sums of alimony:
      “(a) Commencing as of August 1, 1998 through and including December 31, 2000, the Husband shall pay alimony, deductible by the Husband and taxable to the Wife, to the Wife in accordance with the following schedule:

        Husband’s Annual Cash Percentage of Cash
      Disbursement from Space Machine Disbursements paid to
      Advisors Wife as Alimony
      041,500,000 24%
      $1,500,00042,000,000 0%
      $2,000,00043,500,000 30%
      $3,500,00044,000,000 20%
      “The Wife shall not participate in the Husband’s ‘cash disbursements’ from Space Machine Advisors, or any successor company of the Husband’s, in the excess of $4,000,000 per annum.
      “(b) Commencing as of January 1,2001 through and continuing thereafter through and until July 31, 2013, at which time such payments of alimony shall in all events terminate, the Husband shall pay alimony, deductible by the Husband and taxable to the Wife, to the Wife in accordance with the following schedule:
      Husband’s Annual Cash Percentage of Cash
      Disbursement from Space Machine Disbursements paid to
      Advisors Wife as Alimony
      04500,000 35%
      $500,00041,000,000 30%
      $1,000,00041,500,000 25%
      $1,500,00042,500,000 20%
      “The Wife shall not participate in the Husband’s ‘cash disbursements’ from Space Machine Advisors, or any successor company of the Husband’s in the excess of $2,500,000 per annum.
      “(c) The Husband represents that the only launches currently scheduled are those set forth on Schedule B.
      “B. The Husband further represents that the only income received by him to date in 1998 is his monthly salary and dividends declared in 1998 for the purpose of repaying loans due to his company.”

       See footnote 10.