author: Borden, J.

text:
    Henry O. Briggs v. State Employees Retirement Commission
    (5570)
    Dupont, C. J., Borden and O’Connell, Js.

      Argued December 2, 1987 —
    decision released February 23, 1988

      Edward Gallant, with whom, on the brief, was Peter F. Culver, for the appellant (plaintiff).

      Richard T. Sponzo, assistant attorney general, with whom, on the brief, were Joseph I. Lieberman, attorney general, and Robert E. Walsh, assistant attorney general, for the appellee (defendant).
   Borden, J.

The plaintiff appeals from the judgment of the trial court affirming a decision of the defendant state employees retirement commission. That decision denied the plaintiff’s application for service connected disability retirement benefits pursuant to General Statutes § 5-169 (b). The dispositive issue of this appeal is whether the decision of the defendant was “clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record . . . .’’General Statutes § 4-183 (g) (5). We conclude that the decision was clearly erroneous, and we find error.

In December, 1979, the plaintiff was a mental health worker at Norwich Hospital, a state facility, when he was physically assaulted by a violent patient. In April, 1984, the hospital, acting pursuant to General Statutes § 5-244, requested the personnel division of the state department of administrative services to seek a position for the plaintiff requiring less arduous duties. This request was predicated on the plaintiffs injuries suffered in December, 1979. The personnel division was unable to do so. In July, 1984, the plaintiff filed an application for service connected disability retirement benefits pursuant to General Statutes § 5-169 (b), claiming that as a result of the December, 1979 attack he was permanently disabled from continuing to render service as a mental health worker. His claim had two medical bases: (1) injuries to his back, supported by reports of his orthopedic surgeon; and (2) psychiatric disability, supported by reports of his psychiatrist.

In October, 1984, a hearing on the plaintiffs application was held before the medical examining board pursuant to General Statutes § 5-169 (c). At this hearing, the plaintiff testified and introduced medical reports by his orthopedic physician and by Michael P. O’Brien, the psychiatrist who treated him for his condition resulting from the 1979 attack. In November, 1984, the board denied the plaintiff’s application. The plaintiff then requested a reconsideration of the board’s decision. The board held a second hearing and, in May, 1985, again denied the plaintiff’s application. The plaintiff then requested the defendant commission to review the board’s decision. The defendant adopted the board’s decision. The plaintiff appealed to the Superior Court, which affirmed the defendant’s decision. This appeal followed.

The plaintiff claims that the trial court erred in sustaining the defendant’s decision because (1) the decision was not based on substantial evidence, and (2) the defendant employed an erroneous legal standard. We agree with the plaintiff’s first claim of error, and therefore need not reach his second claim.

General Statutes § 4-183 (g) provides in pertinent part that, in an administrative appeal such as this case, “[t]he court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. . . . The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: ... (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record . . . . ”

This standard has been recently and exhaustively explained. We must sustain the agency decision if any one of its reasons is supported by substantial evidence, leaving the credibility of witnesses within the agency’s province. Huck v. Inland Wetlands & Watercourses Agency, 203 Conn. 525, 539-41, 525 A.2d 940 (1987). “ ‘This so-called substantial evidence rule is similar to the “sufficiency of the evidence” standard applied in judicial review of jury verdicts, and evidence is sufficient to sustain an agency finding if it affords “a substantial basis of fact from which the fact in issue can be reasonably inferred. . . .. [I]t must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury.” . . . “The ‘substantial evidence’ rule is a compromise between opposing theories of broad or de novo review and restricted review or complete abstention. It is broad enough and capable of sufficient flexibility in its application to enable the reviewing court to correct whatever ascertainable abuses may arise in administrative adjudication. On the other hand, it is review of such breadth as is entirely consistent with effective administration. . . . [It] imposes an important limitation on the power of the courts to overturn a decision of an administrative agency . . . and to provide a more restrictive standard of review than standards embodying review of ‘weight of the evidence’ or ‘clearly erroneous’ action. . . . ” ’ (Citations omitted.) Lawrence v. Kozlowski, [171 Conn. 705, 713-14, 372 A.2d 110 (1976), cert, denied, 431 U.S. 969, 97 S. Ct. 2930, 53 L. Ed. 2d 1066 (1977)]; Persico v. Maher, 191 Conn.

384, 409, 465 A.2d 308 (1983). The United States Supreme Court, in defining ‘substantial evidence’ in the ‘directed verdict’ formulation, has said that it ‘is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence.’ Consolo v. Federal Maritime Commission, 383 U.S. 607, 620, 86 S. Ct. 1018, 16 L. Ed. 2d 131 (1966); see Consolidated Edison Co. v. National Labor Relations Board, 305 U.S. 197, 229, 59 S. Ct. 206, 83 L. Ed. 126 (1938). ‘The reviewing court must take into account [that there is] contradictory evidence in the record . . . but “the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence . . . .” ’ American Textile Manufacturers Institute, Inc. v. Donovan, 452 U.S. 490, 523, 101 S. Ct. 2478, 69 L. Ed. 2d 185 (1981), quoting Consolo v. Federal Maritime Commission, supra.

“We have said that an administrative agency is not required to believe any witness, even an expert, nor is it required to use in any particular fashion any of the materials presented to it so long as the conduct of the hearing is fundamentally fair. Manor Development Corporation v. Conservation Commission, 180 Conn. 692, 697, 433 A.2d 999 (1980).” Huck v. Inland Wetlands & Watercourses Agency, supra, 541-42.

We first note that the standard of disability which the plaintiff was required to establish was not that he was permanently disabled from rendering any service. It was, instead that “while in state service, [he became] permanently disabled from continuing to render the service in which he has been employed as a result of any injury received while in the performance of his duty as a state employee . . . . ” (Emphasis added.) General Statutes § 5-169 (b).

It is clear from the two decisions of the board that, while recognizing that the plaintiffs claim of a psychiatric disability was supported by substantial evidence, the board read that same evidence as insufficient to establish that the psychiatric disability was permanent. In its first decision, the board stated: “While recognizing the substantial evidence of a psychiatric condition as presented by the applicant, the Board finds that there is insufficient evidence to conclude that the psychiatric condition is permanently disabling. The Board takes note of a report from the applicant’s psychiatrist, Doctor Michael P. O’Brien, dated May 15th, 1984, which states that applicant, ‘. . . have psychiatric treatment to avoid chronicity. . .’‘Histreatment was prematurely terminated in March, 1981.’ From the statement by the applicant’s own psychiatric consultant, the Board infers that Doctor O’Brien, himself, is not satisfied as to the permanence of the disability sustained by Mr. Briggs.” In its second decision, the board stated: “After consideration of new evidence submitted by the applicant, as well as the applicant’s testimony, the Board again finds that while there is substantial evidence of psychiatric problems currently under treatment the Board notes that the applicant’s psychiatrist states that there is improvement. ‘He is less depressed. His speech is more spontaneous.’ ‘His concentration is improved. . .’ With these considerations in mind the Board fails to find sufficient new evidence of the permanence of a psychiatric condition claimed by the applicant and therefore upholds its denial of service-connected disability.”

It is also clear that the board based its findings that the plaintiffs psychiatric disability was not permanent and its conclusion of evidentiary insufficiency on the reports of O’Brien, the plaintiff’s psychiatrist. As the plaintiff points out, however, the board’s reading of those reports is distorted and unduly selective; it simply cannot be squared with a fair reading of the psychiatric reports in their proper context.

In his report of May 15, 1984, O’Brien noted, inter alia, that the plaintiff’s “psychiatric condition continues relatively unchanged since my report of September 30, 1980 and subsequent treatment reports through March 16,1981.” He diagnosed the plaintiff as having “[p]ost-traumatic stress disorder, chronic.” His report concluded: “I recommended that Mr. Briggs have psychiatric treatment to avoid chronicity in my report of September 30, 1980. His treatment was prematurely terminated in March, 1981. Mr. Briggs’ condition is the result of the injuries he sustained at Norwich State Hospital on December 28, 1979. He cannot return to work there at this time and his capacity for work elsewhere is not clear. His current mental state, which prevents him from rendering the service he performed at Norwich State Hospital, has persisted and may persist for an indefinite period, absent resumption of proper treatment.” The plaintiff introduced into evidence before the board the “Guides To The Evaluation Of Permanent Impairment,” published by the American Medical Association. That document contains the following definition: “The term ‘permanent’ refers to a condition which results in a substantial loss of function despite treatment and which has persisted and may persist for an indefinite period.” It is clear, therefore, that although O’Brien’s report did not use the term “permanent,” O’Brien was characterizing the plaintiff’s condition at that time as permanent. In light of this, and taking O’Brien’s report as a whole, we find unsupported by substantial evidence the board’s inference from O’Brien’s report that O’Brien was “not satisfied as to the permanence of the disability sustained by Mr. Briggs.”

O’Brien’s opinion as to the plaintiff’s permanency became more clear in his next medical report, dated March 5,1985. In that report, O’Brien referred to the “severe psychic trauma that Mr. Briggs experienced when he was attacked at Norwich State Hospital and the subsequent denial of appropriate medical care for the stress disorder it caused.” The report noted that the plaintiff is “chronically depressed” and that “[t]he continuation of his frightening dreams, historically precipitated by the attack, and his continued psychic numbing (distance) indicate that his post-traumatic stress disorder is also chronic.” O’Brien concluded: “Mr. Briggs is permanently disabled from rendering the services he performed at Norwich State Hospital, and his permanent disability is the result of injuries he sustained at Norwich State Hospital on December 28, 1979.”

The board selected isolated phrases from O’Brien’s reports which indicated some marginal improvement. Those phrases, taken out of context, do not, however, justify a reading of O’Brien’s report to support a finding of a lack of permanent disability. The board’s conclusion simply does not square with the evidence on which that conclusion was based.

We emphasize that this is not a case in which the plaintiff submitted ambiguous or loosely phrased medical evidence, so as to justify the board in rejecting the plaintiff’s application because the evidence yielded the possibility of drawing two inconsistent conclusions or because of insufficient evidence. O’Brien’s reports were clear, detailed and unambiguous. Nor is this a case which turned in any way on the credibility of witnesses. The board itself twice noted the “substantial evidence” of the plaintiffs psychiatric condition. The only question was whether that condition was permanent, and the only evidence regarding that question was O’Brien’s reports. Nor does either of the board’s decisions disclose that it was dissatisfied with the documentary nature of the plaintiff’s evidence and required live testimony from O’Brien instead. This is a case in which the board simply misconstrued the plain meaning of the documentary evidence as to the issue of the permanency of the plaintiff’s disability.

We also note that a determination today that the plaintiff is permanently disabled does not preclude a different determination tomorrow if his condition changes. “Retirement income being paid for disability retirement shall end when and if the disability ends.” General Statutes § 5-169 (e). The plaintiff conceded at oral argument in this court that the defendant can request that he be reevaluated from time to time in order to determine whether he is still disabled and, if he is not, to end his benefits.

We recognize that our scope of review of the defendant’s actions is very limited. Huck v. Inland Wetlands & Watercourses Agency, supra. We recognize, also, that it is a rare case in which a challenge to an administrative agency’s rejection of a claim for insufficient evidence will be successful, precisely because of that limited scope of review. This is that rare case. As we have said in another context, however, “[ljimited appellate review . . . must not be a mere shibboleth on the basis of which the appellate court makes such review a nullity.” Ehrenkranz v. Ehrenkranz, 2 Conn. App. 416, 421, 479 A.2d 826 (1984).

This conclusion leaves the question of the proper remedy on the remand. Ordinarily, in an administrative appeal, the court is warranted in issuing an order to the administrative agency only where the totality of the evidence before the agency can be said to constitute substantial evidence as a matter of law, “ ‘supporting the . . . finding that only one conclusion [granting] the plaintiffs [application] could be reached, thereby compelling a modification of the administrative decision and directed order to the defendant.’ ” Denby v. Commissioner, 6 Conn. App. 47, 57-58, 502 A.2d 954 (1986), quoting Persico v. Maher, 191 Conn. 384, 409-410, 465 A.2d 308 (1983); see also Plastic Distributors, Inc. v. Burns, 5 Conn. App. 219, 230, 497 A.2d 1005 (1985) (judgment directed where agency could reach only one conclusion as a matter of law). Our review of the record in this case leads us to conclude that this is such a case. The totality of the evidence before the board constituted substantial evidence as a matter of law that the plaintiff suffered a psychiatric disability resulting from the attack at Norwich Hospital, which rendered him permanently incapable of continuing to perform services as a mental health worker.

There is error, the judgment is set aside and the case is remanded with direction to render judgment reversing the defendant’s decision and ordering the defendant to grant the plaintiff’s application.

In this opinion the other judges concurred.

       General Statutes § 5-244 provides in pertinent part: “When [a state] employee has become physically or mentally incapable of . . . the efficient performance of the duties of his position, by reason of infirmities due to advanced age or other disability, the appointing authority shall recommend to the commissioner of administrative services that the employee be transferred to less arduous duties or separated from state service in good standing.”

       General Statutes § 5-169 (b) provides in pertinent part: “If a member [of the state employees retirement system], while in state service, becomes permanently disabled from continuing to render the service in which he has been employed as a result of any injury received while in the performance of his duty as a state employee, such member is eligible for disability retirement regardless of his period of state service.”

       General Statutes § 5-169 (c) provides: “The governor shall appoint a board of seven physicians, each of whom is a state employee and two of whom shall be experienced in psychiatry, to serve at his pleasure as a medical examining board to determine whether each applicant for disability retirement is entitled thereto. Three of such members, one of whom shall be the elected chairman or the elected secretary of the board, shall constitute a quorum for the determination of any applicant’s entitlement. The chairman or the secretary shall report the findings of the board to the retirement commission from time to time as requested by the commission as to the entitlement of each applicant or the continuance of disability of members so retired. The comptroller is authorized to pay for stenographic and professional services as requested and approved by the board.”

       Although in this appeal the plaintiff has not abandoned his claim that the defendant improperly rejected his claim of an orthopedic disability, the principal thrust of his appeal focuses on his psychiatric disability. Since we find error regarding that disability, it is'not necessary to discuss the plaintiffs orthopedic disability.

       The defendant commission concluded (1) that it deferred, as an administrative policy, to the board’s judgment in disability cases, because it lacked the expertise to judge the medical evidence independently, and (2) that the statute creating the board was intended to make the board the final administrative arbiter of medical issues. The plaintiff does not challenge these determinations. We therefore consider the decision of the board as that of the defendant commission.

       The plaintiff also claims that the decision denied him due process of law. This claim, however, is simply a conclusion based solely on his first two claims. We therefore do not regard it as a separately presented claim of error.

       It is not disputed that the plaintiff was attacked and injured “while in state service,” or that his disability is “as a result of [the] injury received while in the performance of his duty as a state employee.” General Statutes § 5-169 (b).

       O’Brien’s entire report dated May 15, 1984, is as follows:
      “Confidential Henry Briggs
      Psychiatric Report May 15, 1984
      “Mr. Briggs’ psychiatric condition continues relatively unchanged since my report of September 30,1980 and subsequent treatment reports through March 16, 1981. Essentially, he continues to have neck pain, gastrointestinal dysfunction, right arm dysfunction, back pain, decreased concentration and memory, low energy, loss of interest and estrangement. He has the early morning awakening form of insomnia and is irritable and vigilant. He reports decreased frequency of nightmares.
      “He states that he has not been able to find work because of his past medical history of injury. He went to computer school but there was no computer job. He feels that his doctor, wife and lawyer have understood him more in recent years than before but it is not clear to what extent he has informed other people of his problems. Apparently, he told his wife some aspects of what had happened to him and was surprised when she told him that he had not mentioned them before. He thought he had. He feels infuriatingly frustrated that he has always been an ‘allright guy’ but has not been treated ‘fairly.’
      “The mental status examination shows that Mr. Briggs is still friendly and cooperative but more irritable, hyperalert, distant and anxious. His speech is slow and quiet. His mood is depressed and his affect constricted. His thinking is tangential but there are no delusions. His thought content is despairing but he is not suicidal at this time. Serial sevens and number repetition showed impaired concentration but good effort. His thinking is abstract and his judgment intact.
      “Impression: Post-traumatic stress disorder, chronic.
      “I recommended that Mr. Briggs have psychiatric treatment to avoid chronicity in my report of September 30,1980. His treatment was prematurely terminated in March, 1981. Mr. Briggs’ condition is the result of the injuries he sustained at Norwich State Hospital on December 28, 1979. He cannot return to work there at this time and his capacity for work elsewhere is not clear. His current mental state, which prevents him from rendering the service he performed at Norwich State Hospital, has persisted and may persist for an indefinite period, absent resumption of proper treatment.”
      We note that the board based its first decision partially on O’Brien’s statement that the plaintiff’s treatment was prematurely terminated in March, 1981. The plaintiff claims that this termination was not of his doing, but was the result of a decision by the state to terminate payment for this treatment. He testified before the board that O’Brien “received a letter from Attorney General Girard telling him to stop seeing me. This was about the same time that they stopped paying the [workers’] compensation money. So, I stopped seeing him.” He also testified that his orthopedic physician “wanted me to continue seeing Dr. O’Brien but I can’t pay Dr. O’Brien. So, I had to stop. Dr. O’Brien put me on some medication and the medication has helped. I will say that. But I cannot see him, what he asks for his fees.” Although there is no letter in this record from the attorney general withdrawing payment for continued treatment by Dr. O’Brien, the defendant in this court agreed “that treatment [by O’Brien] was terminated under the Workers’ Compensation Program. ...” Furthermore, in O’Brien’s subsequent report, dated March 5,1985; see footnote 9, infra; he referred to the “subsequent denial of appropriate medical care for the stress disorder” caused by the incident at Norwich Hospital. There is no suggestion, therefore, in this record that the plaintiff voluntarily terminated treatment with O’Brien prematurely.

       O’Brien’s entire report, dated March 5, 1985, is as follows:
      “Confidential March 5, 1985
      Psychiatric Report Henry Briggs
      “Mr. Briggs was seen today for re-evaluation. He stated that he still had not been able to find work and feels that his recent police report will make it even more difficult. He feels that he was provoked by the police in what would have otherwise been a minor traffic violation. He feels that he is preoccupied in Ms efforts to resolve the unemployment problems caused by Ms injury. He has moved. His wife has a different job.
      “Mr. Briggs continues to have dry mouth, occasional orthostatic hypotension and labile hypertension but his gastointestinal symptoms have improved and he is able to eat more. He also has less early morning awakening and improved concentration since resuming the Imipramine despite his progressive despair about work. His frightening dreams are less intense. There has been no orthopedic improvement.
      “His mental status examination shows that he is less irritable, hyper-alert and distant since the examination of May 15, 1984. He has gained weight. He is demoralized and angry. He is less depressed. His speech is more spontaneous. He is not tangential but his ideation is paranoid. His concentration is improved and his judgment remains intact.
      “Considering the history of severe psychic trauma that Mr. Briggs experienced when he was attacked at Norwich State Hospital and the subsequent denial of appropriate medical care for the stress disorder it caused, it is not surprising that he continues to show signs of stress disorder as well as depression even with therapeutic dosage of Imipramine. The medication has reduced the severity of the neurovegetative symptoms but he is chronically depressed. The continuation of his frightening dreams, historically precipitated by the attack, and his continued psychic numbing (distance) indicate that his post-traumatic stress disorder is also chronic. Mr. Briggs is permanently disabled from rendering the services he performed at Norwich State Hospital, and his permanent disability is the result of injuries he sustained at Norwich State Hospital on December 28, 1979.”


source: Caselaw Access Project

author: O’Connell, J.

license: Public Domain

text:
    Housing Authority of the Town of Windsor v. Pine Associates, Inc.
    (4705)
    Borden, O’Connell and Stoughton, Js.

      Argued January 6 —
    decision released February 23, 1988

      Raymond A. Garcia, with whom, on the brief was Lisa Anderson, for the appellant-appellee (defendant).

      Thomas F. Parker, with whom, on the brief, was Brenda M. Bergeron, for the appellee-appellant (plaintiff).
   O’Connell, J.

This is an appeal by the defendant contractor, after a jury trial, from the judgment in favor of the plaintiff on its construction contract claim, and on the defendant’s counterclaim. The plaintiff also cross appealed. We find no error.

The jury reasonably could have found the following facts. The plaintiff housing authority and the defendant contractor entered into a contract for the construction of a thirty unit housing project. The defendant breached the contract by not finishing the project by the completion date or within the numerous extensions granted. The plaintiff expended funds to complete the project and to correct defects in those parts of the project that the defendant had finished.

The jury returned a verdict for the plaintiff for $86,000 on the complaint, and for the plaintiff on the defendant’s counterclaim.

The defendant appeals claiming that the trial court erred by instructing the jury that the defendant contractor was not entitled to any damages unless it fully or substantially performed its obligations under the contract, and in its instructions concerning the weight to be given to pleadings from other cases brought by various subcontractors against the defendant, the responsibility for delay in contract completion, the defendant’s responsibility for soil and water conditions at the construction site, and the recovery of damages for services and materials furnished to the housing authority by the town. The plaintiff, in its cross appeal, claims that the trial court erred by instructing the jury that the plaintiff could not recover the connection fees charged by the public water system. We find no error on the appeal or on the cross appeal.

I

Although the defendant’s claims of error relate exclusively to jury instructions, it has failed to furnish the court with any portion of the transcript as part of the record of its appeal. The defendant argues that the transcript is not necessary and that the appeal can be determined solely by reference to the pleadings and documentary evidence. The defendant is wrong. “It is the responsibility of the appellant to provide an adequate record for review.” Practice Book § 4061. “When error is claimed in the charge to the jury, the brief or appendix shall include a verbatim statement of all relevant portions of the charge and all relevant exceptions to the charge. Evidence relevant to the claimed error shall be printed in narrative form with appropriate references to the page or pages of the transcript. ” (Emphasis added.) Practice Book § 4065 (d) (2). This case took approximately thirteen weeks to try to a jury. It is simply impossible to gauge the adequacy of the court’s jury instructions and to make a determination regarding the seriousness of any error alleged, given the partial vacuum created by the defendant’s failure to supply us with an adequate record.

“Because of the defendant’s failure to follow even the bare requirements of this rule, we are unable to review his claims directed to the court’s charge.” State v. Nerkowski, 184 Conn. 520, 523, 440 A.2d 195 (1981). Accordingly, we find no error on the defendant’s appeal.

II

The plaintiff cross appeals, alleging the court erred in charging the jury that the defendant was not responsible for water connection charges. The plaintiff did not move to set aside the verdict on the grounds of this allegedly erroneous charge. “The scope of our review of the [plaintiff’s] claim on the cross appeal is therefore, limited to a plain error standard.” DeLorenzo v. Great Atlantic & Pacific Tea Co., 4 Conn. App. 560, 563, 495 A.2d 1106 (1985); see Practice Book § 4185; Small v. South Norwalk Savings Bank, 205 Conn. 751, 758, 535 A.2d 1292 (1988). Review under the plain error doctrine “is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” State v. Hinckley, 198 Conn. 77, 87-88, 502 A.2d 388 (1985). The court’s instruction did not constitute plain error.

There is no error on the appeal or on the cross appeal.

In this opinion the other judges concurred.

       The plaintiff, the housing authority of the town of Windsor, is an entity wholly separate and distinct from the town of Windsor.

       Practice Book § 4185 provides in pertinent part: “The [Appellate Court] may in the interests of justice notice plain error not brought to the attention of the trial court.”


text:
    Stella Gutierrez v. Gareth D. Thorne, Commissioner of Mental Retardation
    (5520)
    Dupont, C. J., Borden and O’Connell, Js.
    Argued December 2, 1987 —
    decision released February 23, 1988

      Carl E. Celia, with whom, on the brief, was Mark D. Arons, for the appellant (plaintiff).

      Carolyn K. Querijero, assistant attorney general, with whom, on the brief, were Joseph I. Lieberman, attorney general, and Francis J. MacGregor, assistant attorney general, for the appellee (defendant).
   Borden, J.

The plaintiff brought this action against the defendant in his capacity as commissioner of mental retardation, on the basis of injuries allegedly sustained by the plaintiff while she was a client-participant in a department program. The dispositive issues in this appeal are (1) whethér it was reasonably foreseeable that a male employee of the department of mental retardation, who was assigned to supervise the plaintiffs living situation and who was supplied by the department with a key to the plaintiffs apartment, would commit a sexual assault upon the plaintiff in that apartment, and (2) whether the assault by the employee was within the scope of his employment sufficient to attribute his liability to the defendant. The trial court concluded that the documents submitted in support of and in opposition to the defendant’s motion for summary judgment on both issues showed that no genuine issue of material fact existed as to these questions, and that the defendant was entitled to judgment as a matter of law. Because we conclude, under the circumstances of this case, that there exists a factual dispute as to whether the assault was reasonably foreseeable, we find error.

This action was brought in three counts. The first count sounds in negligence, alleging that the injuries suffered by the plaintiff were proximately caused by the failure of the defendant commissioner to exercise due care in a number of instances, including, inter alia, the selection and supervision of the employee; the granting to the employee, a male staff member, of access to the plaintiff’s apartment; and the failure to become aware of the assaults. This count also sought to impose liability under a theory of respondeat superior. The second count, based on General Statutes § 17-206c, repeats the allegations of the first count, and alleges that the defendant failed to guard and secure the plaintiff’s personal dignity and right to privacy. In the third count, the plaintiff alleges that the acts of the defendant in failing to exercise due care violated her rights under the United States constitution and are redressable under 42 U.S.C. §§ 1983,1985 and 1988.

The trial court addressed the legal issues in this case in the context of the defendant’s motion for summary judgment. Summary judgment may be rendered if it is shown that there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. Practice Book § 384; Orenstein v. Old Buckingham Corporation, 205 Conn. 572, 574, 534 A.2d 1172 (1987). “In passing on a defendant’s motion for summary judgment, the trial court is limited to deciding whether an issue of fact exists, but ... it cannot try that issue if it does exist.” United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 377, 260 A.2d 596 (1969).

The following undisputed facts were presented to the court for consideration in passing upon the defendant’s motion for summary judgment. The plaintiff was referred to the department of mental retardation’s central Connecticut regional center (CCRC) because an IQ test indicated that she was mildly retarded. She became a client of CCRC in the supervised apartment program in October, 1981, while living in a privately-owned apartment in Middletown. In this program, the plaintiff was to be supervised by state employees in how to keep her apartment, shop for her needs, budget her expenses, and perform other aspects of daily living.

In July, 1981, Steven Jones applied for a job as a mental retardation aide. In his application, Jones denied any criminal convictions or that any criminal charges were pending, which was verified through a state police fingerprint check. Upon being hired as a mental retardation aide, Jones went through a one-week orientation program and was supervised on a daily basis. Jones’ job was to visit high-functioning retarded clients of CCRC living in supervised apartments and to assist them with budgeting and banking problems, shopping, and household management.

In December, 1981, Jones was assigned to visit the plaintiff. As a mental retardation aide, Jones was given a key to the plaintiff’s apartment to enable him to enter the apartment in case of emergency. On December 19, while the plaintiff was taking a shower, Jones entered the plaintiff’s apartment with the key provided to him and sexually assaulted the plaintiff. After the attack, Jones told the plaintiff that if she disclosed what had happened, she would lose her benefits. On three occasions in January, 1982, Jones returned to the plaintiffs apartment and sexually assaulted her again. Because she became afraid and upset, the plaintiff moved from her apartment and later told the police about Jones’ conduct.

Jones was later arrested and pleaded guilty to two counts of sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (2). In the twenty years in which CCRC operated a community residential program prior to 1981, no employee had ever been arrested or convicted of any crime of violence, including sexual assault, involving a CCRC client.

The defendant’s motion for summary judgment and documents submitted in support thereof was directed to the issue of “whether it was reasonably foreseeable by the defendant that the plaintiff would be sexually assaulted by the defendant’s employee.” The trial court concluded that “an intentional tort of the general nature of that suffered by the plaintiff was not foreseeable as a matter of law.” The trial court also concluded that the defendant, could not be liable to the plaintiff based on the theory of respondeat superior, because Jones’ actions which injured the plaintiff were not undertaken within the scope of his employment.

I

We first consider whether the trial court was correct in its conclusion that the defendant is not liable to the plaintiff on a theory of respondeat superior. We conclude that the court’s conclusion in this regard was correct.

“The underlying rationale of the modern doctrine of respondeat superior ... is that ‘every man who prefers to manage his affairs through others, remains bound to so manage them that third persons are not injured by any breach of legal duty on the part of such others while they are engaged upon his business and within the scope of their authority.’ Wolf v. Sulik, 93 Conn. 431, 436, 106 A. 443 [1919]; Durso v. A. D. Cozzolino, Inc., 128 Conn. 24, 27, 20 A.2d 392 [1941]. But it must be the affairs of the principal, and not solely the affairs of the agent, which are being furthered in order for the doctrine to apply.” (Emphasis added.) Mitchell v. Resto, 157 Conn. 258, 262, 253 A.2d 25 (1968); see also Cardona v. Valentin, 160 Conn. 18, 22, 273 A.2d 697 (1970) (employer liable for wilful torts of his employee when they are committed in furtherance of the employer’s business).

In the present case, it is clear that Jones was not furthering the defendant’s business interests when he sexually assaulted the plaintiff. He was engaging in criminal conduct which had no connection to the defendant’s business of providing supervision and training to mentally retarded persons regarding daily living skills. Since there were no facts before the court from which it could conclude that Jones was furthering the defendant’s interests, the defendant’s nonliability under a respondeat superior theory was properly determined as a matter of law. See, e.g., Levitz v. Jewish Home for the Aged, Inc., 156 Conn. 193, 239 A.2d 490 (1968). The plaintiffs statement in her affidavit that Jones was “on duty” at the the time of each assault, does not alter this conclusion, because his tortious conduct while on duty is not susceptible of an inference that he was acting to further his employer’s interest. “ Tn the course of employment” means while engaged in the service of the master, and it is not synonymous with the phrase “during the period covered by his employment.’ ” Id., 198, quoting Pacific Telephone & Telegraph Co. v. White, 104 F.2d 923, 926 (9th Cir. 1939); see also Cardona v. Valentin, supra, 22-23.

Our conclusion that the trial court was correct in determining that the defendant could not be found vicariously liable based solely upon Jones’ conduct does not mean, however, that the court properly granted the defendant’s motion for summary judgment. The plaintiff seeks to base the defendant’s liability upon allegations of negligence which flow, not solely from Jones’ conduct, but also from the defendant’s acts or omissions, or those of his agents other than Jones, which allegedly resulted in the injuries to the plaintiff. See footnote 1, supra. As such, the several allegations of a failure to exercise due care on the part of the defendant — each an independent claim of direct negligence — do not depend upon a successful theory of vicarious liability under the doctrine of respondeat superior. See, e.g., Cardona v. Valentin, supra (respondeat superior liability analyzed separately from liability for negligent failure to hire more employees); 53 Am. Jur. 2d, Master and Servant § 422, pp. 437-38 (theory of independent negligence becomes important where employee’s act was not within scope of employment and respondeat superior liability unavailable). Therefore, the fact that the plaintiff failed to produce facts to show that Jones was acting within the scope of employment, would not entitle the defendant to judgment as a matter of law on the plaintiff’s claims of negligent acts or omissions of the defendant which proximately resulted in the plaintiff’s injuries.

II

We therefore turn to the issue of foreseeability, which was the principal basis of the trial court’s decision, and which forms the crux of the appeal as presented by the parties. “The test that is often applied in determining whether there exists a duty to use care is the foreseeability of harm. ‘Would the ordinarily prudent man in the position of the defendant, knowing what he knew or should have known, anticipate that harm of the general nature of that suffered was likely to result?’ This does not mean foreseeability of any harm whatsoever or foreseeability that the particular injury which resulted would occur. It is, in short, the foreseeability or anticipation that harm of the general nature of that suffered would be likely to result, which gives rise to a duty to use due care, breach of which might constitute negligence.” (Footnotes omitted.) D. Wright & J. Fitzgerald, Connecticut Law of Torts (2d Ed.) § 29. The matter of foreseeability is a question of proximate cause; Burns v. Gleason Plant Security, Inc., 10 Conn. App. 480, 485, 523 A.2d 940 (1987); and “the question of proximate cause is ordinarily a question of fact for the trier.” Id. “ ‘Conclusions of proximate cause are to be drawn by the jury and not by the court.’ Fox v. Mason, 189 Conn. 484, 489, 456 A.2d 1196 (1983). ‘ “It becomes a conclusion of law only when the mind of a fair and reasonable man could reach only one conclusion; if there is room for a reasonable disagreement the question is one to be determined by the trier as a matter of fact.” Marley v. New England Transportation Co., 133 Conn. 586, 591, 53 A.2d 296 [1947] Busko v. DeFilippo, [162 Conn. 462, 466, 294 A.2d 510 (1972)].” Trzcinski v. Richey, 190 Conn. 285, 295, 460 A.2d 1269 (1983); Bums v. Gleason Plant Security, Inc., supra.

In the present case, we conclude that, even under facts which are not in dispute, the question of foreseeability is not such as would lead to only one conclusion; rather, under the circumstances of this case, the foreseeability of whether the defendant’s conduct in permitting Jones to have a key to the plaintiff’s apartment would result in a sexual assault upon the plaintiff is a question to be resolved by the trier of fact. In reaching this conclusion, we note several critical aspects of this case which must be carefully weighed, and therefore the inferences to be drawn from these facts cannot be resolved by summary judgment.

The plaintiff is a woman whose mental functioning is slightly impaired. She is a client of the department of mental retardation receiving the benefits of a state program to assist high-functioning mentally retarded persons in an independent living situation. The department of mental retardation’s rules notwithstanding, the defendant, through department employees, permitted Jones, a male employee, to have complete, unfettered and unsupervised access to the plaintiff’s apartment. The plaintiff was in a position where it is unlikely that she could resist Jones’ entry into her private apartment.

This impaired ability to resist arose both from the unrestricted nature of the access granted to Jones by virtue of his possession of a key to the plaintiff’s apartment, and from the particular vulnerability of the plaintiff due to the superior power accorded Jones in his relationship with the plaintiff by virtue of their provider-client relationship, her mental impairment, and his ability to threaten a termination of her state services. Presented with these facts, the court erred in granting summary judgment because the conclusion to be drawn from these facts as to whether it was reasonably foreseeable that the plaintiff would be sexually assaulted by the defendant’s employee is precisely the type of determination most appropriately left to the trier of fact.

There is error, the judgment is set aside and the case is remanded for further proceedings in accordance with law.

In this opinion the other judges concurred.

       In Paragraph 9 of the first count of her complaint, the plaintiff set forth the following allegations of negligence by the defendant, his agents or servants:
      “(a) The said Defendant, through his agents and employees failed to exercise reasonable care in selecting and hiring Steven Jones to serve as a Mental Retardation Aide I.
      “(b) The Defendant, through his agents and servants, failed to exercise reasonable care in training and supervising Steven Jones in the performance of his duties.
      “(c) The Defendant, through his agents and servants allowed Steven Jones, a male staff member, to have or obtain possession of a key to an apartment maintained by the Central Connecticut Regional Center for female occupants who were mentally incapacitated, thereby allowing him access to the apartment without the occupants consent, and placing the occupants, particularly the Plaintiff in this action, at the mercy of the said Steven Jones to utilize the absence of any other staff members in the privacy of the apartment to force his sexual desires upon the Plaintiff.
      “(d) The Defendant, through his agents and servants, permitted male staff members to enter female occupied apartments alone and without the presence of other staff members, when he knew or should have known that such activity was likely to cause harm to the mentally incapacitated occupants, in this case, the Plaintiff, Stella Gutierrez.
      “(e) The Defendant, his servants, agents, and employees violated the ‘Department of Mental Retardation Rights of Mentally Retarded Persons Receiving Services’, as published and given to the Plaintiff on November 10, 1981 with particular reference to subsection (a), subsection (b), subsection (e) - (6), and subsection (e) - (7), a copy of which publication is attached hereto and made a part hereof.
      “(f) The Defendant, his servants, agents, and employees failed to become aware of the assaults which continued over a period of approximately six weeks, when in the exercise of reasonable care they should have been alerted to same and afforded their patient, the Plaintiff, Stella Gutierrez, the necessary help and assistance needed as well as eliminating the ability of Steven Jones to continue in the manner aforesaid.
      “(g) The said Defendant, through his agents and employees failed to implement a policy and procedure of rotating staff members and employees, including Steven Jones, among and between the clients of the Central Connecticut Regional Center.
      “(h) The said Defendant, through his agents and employees, failed to provide the Plaintiff herein with a reasonably safe and secure residence, “(i) The said Defendant, through his agents and employees, failed to make certain that the Plaintiff’s residence was reasonably safe and secure.”

       Paragraph 7 of the first count of the complaint provided the basis for a claim of respondeat superior liability and alleged: “At all times mentioned herein, Steven Jones was acting as an employee or servant of the Commissioner of Mental Retardation.”

       General Statutes § 17-206c provides in pertinent part: “Every patient treated in any facility for treatment of the mentally disordered shall receive humane and dignified treatment at all times, with full respect for his personal dignity and right to privacy. . . .” The defendant does not dispute that this statute provides a direct cause of action against him, and that sovereign immunity is waived by virtue of General Statutes § 19a-24.

       In addressing the issue of foreseeability, neither the trial court nor the parties examined the matter in the context of each particular specification of negligence. See footnote 1, supra. Our discussion illustrates that the facts are sufficiently in dispute on the matter of foreseeability in the context of a claim of negligent granting of access to preclude summary judgment on the entire complaint and to warrant further proceedings. We note that in response to the defendant’s motion for summary judgment, the plaintiff offered no evidence from which it could be concluded that Jones’ acts were a foreseeable result of the defendant’s conduct with respect to hiring, selection, or training of Jones, or the defendant’s failure to become aware of the wrongful acts, or the defendant’s failure to implement a policy of rotating staff members or employees. While the case should continue in conformity with this opinion we express no opinion whether each of these specifications of negligence should ultimately go the the jury for consideration. Cf. State v. Santangelo, 205 Conn. 578, 594, 534 A.2d 1175 (1987).
      In addition, we note that both the trial court and the parties appear to have treated the first two counts of the plaintiff’s complaint as essentially identical claims of negligence with respect to the motion for summary judgment. We express no view as to the correctness of this position.
      Finally, neither the trial court nor the parties have separately addressed the plaintiff’s third count, that of a deprivation of constitutional rights under color of law. We note that nowhere has the plaintiff identified the specific constitutional theory under which she seeks redress. We note, however, that an action brought under 42 U.S.C. § 1983 involves principles of law, both as matters of proof and defense, which are not necessarily applicable to state law tort actions. Accordingly, we express no opinion as to the applicability of our consideration of the issues in this appeal to the plaintiff’s federal law cause of action.


text:
    Benjamin R. Buckner v. The Shorehaven Golf Club, Inc., et al.
    (5556)
    Borden, O’Connell and Stoughton, Js.
    Argued January 5 —
    decision released February 23, 1988

      Eugene J. Riccio, with whom, on the brief, was P. Benedict Fraser, for the appellant (plaintiff).

      James F. Kenney, with whom, on the brief, was Stephen R. Beilis, for the appellee (named defendant).
   O’Connell, J.

This is the plaintiff’s appeal from the judgment denying his request for an injunction ordering his reinstatement as a member of the defendant country club. The named defendant is a private capital stock corporation which operates a private country club in East Norwalk. The plaintiff was a member of the club until November 11, 1985, when he was expelled by a vote of the club’s board of directors for conduct which it found to be “detrimental or dangerous to the welfare, interests or character of the club.” This action was taken after a hearing before the board at which witnesses were heard.

The trial court found, inter alia, that the “[p]laintiff has not suffered irreparable harm.” It is the trial court’s ruling on this issue which determines the plaintiff’s appeal.

It is an elementary doctrine that one who seeks injunctive relief must prove that absent the issuance of the injunction he will suffer irreparable harm. “An injunction is a harsh remedy and our courts have consistently held that its issuance is only proper in order to prevent irreparable injury.” Everett v. Pabilonia, 11 Conn. App. 171, 178, 526 A.2d 543 (1987), and cases cited therein. Further, it is beyond dispute that the granting or denial of a request for injunctive relief “is not mandatory but is within the sound discretion of the trial court.” Id. In the present case, the trial court expressly found that “the plaintiff has not suffered irreparable harm.”

We conclude that the trial court did not abuse its discretion in denying the plaintiff’s request for injunctive relief.

There is no error.

In this opinion the other judges concurred.

       Before trial, the action was withdrawn as to the individual defendant who was the president of the board of directors of the corporate defendant.

       The plaintiff strenuously objected to the named defendant’s attempt to raise the irreparable harm issue at oral argument when it had not been included in its brief or counterstatement of issues. Since we have determined that the plaintiff has failed to prove all of the requisite elements of this action for injunctive relief, we need not address the plaintiffs claim that the argument is improper.


author: Stoughton, J.

text:
    Burlington Construction Company, Inc. v. R.C. Equipment and Construction, Inc.
    (4995)
    Dupont, C. J., Stoughton and Foti, Js.
    Argued November 4, 1987 —
    decision released February 23, 1988

      Edward J. Gallagher, for the appellant (defendant).

      Robert L. Trowbridge, with whom, on the brief, was Debra S. Dee, for the appellee (plaintiff).
   Stoughton, J.

This is an appeal by the defendant from a judgment rendered upon a jury verdict in favor of the plaintiff. We find no error.

The plaintiffs amended complaint alleged that the defendant breached a contract to complete certain site work for the construction of a building. The defendant denied that it had breached a contract and counterclaimed, alleging the existence of an oral agreement to do some clearing and site work which it had performed but for which it had not been paid. On the complaint, the jury returned a verdict for the plaintiff in the amount of $26,542.78. The jury returned a verdict for the defendant on the counterclaim in the amount of $3807.09.

At the conclusion of the court’s charge, the defendant moved for judgment on the ground that the plaintiff had failed to make out a prima facie case. We treat this as a motion for directed verdict, even though such a motion should be made before arguments start. Haag v. Beard Sand & Gravel Co., 151 Conn. 125, 127, 193 A.2d 711 (1963). The court denied this motion. The defendant never moved to have the verdict set aside on this ground or any other ground he presents on appeal. Judgment was rendered on the verdicts on March 6, 1986.

It is an established rule of appellate practice in this state that in order to obtain full review of claims of error in a civil jury case, parties must file a motion to set aside the verdict. Kolich v. Shugrue, 198 Conn. 322, 325, 502 A.2d 918 (1986); Ames v. Sears, Roebuck & Co., 8 Conn. App. 642, 654 n.10, 504 A.2d 352, cert, denied, 201 Conn. 809, 515 A.2d 378 (1986). Since the defendant never filed such a motion, our review is limited to determining whether the record reflects an error which is so obvious that it affects the fairness and integrity of, and public confidence in, judicial proceedings. Kolich v. Shugrue, supra, 326; State v. Hinckley, 198 Conn. 77, 87-88, 502 A.2d 388 (1985).

On appeal, the defendant claimed (1) that the plaintiff failed to make out a prima facie case and, thus, the court erred in submitting the case to the jury, and (2) that the court erred in its charge to the jury both as to the circumstances under which a bid by a subcontractor to a general contractor may be enforced and as to what terms may be implied in a contract. Giving these claims the appropriate scope of review, we find no error.

As to the first claim of error, it is apparent from the record that there was evidence from which a jury could reasonably have found that there was a contract. Upon the facts established and the reasonable inferences drawn therefrom, the cumulative effect was sufficient to justify the verdict; State v. Davis, 3 Conn. App. 359, 368, 488 A.2d 837 (1985); and thus there was no “plain error” in submitting the case to the jury. With respect to the claims of error addressed to the charge, we find that the court adequately charged the jury on the elements necessary for a binding contract. Whether a contract is too indefinite to be enforced is a question of fact. Augeri v. C.F. Wooding Co., 173 Conn. 426, 430-31, 378 A.2d 538 (1977). Evidence of custom and usage in a trade is admissible and the weight to be assigned it is for the jury. Harry A. Finman & Son, Inc. v. Connecticut Truck & Trailer Service Co., 169 Conn. 407, 409, 363 A.2d 86 (1975). The instructions properly allowed the jury to define the context of the parties’ agreement by reference to trade custom and usage. L. F. Pace & Sons, Inc. v. Travelers Indemnity Co., 9 Conn. App. 30, 38, 514 A.2d 766, cert, denied, 201 Conn. 811, 516 A.2d 886 (1986). There was no “plain error” in the charge.

There is no error.

In this opinion the other judges concurred.

       The disputed portions of the charge as to bid enforcement and as to what terms may be implied in a contract are as follows: “You have heard testimony that the plaintiff relied on a bid submitted by the defendant in March of 1984 in putting together the proposal from Burlington Construction Company to the owner of the property. If you find that an unequivocal bid was submitted that both parties should reasonably have expected the plaintiff to rely on that bid, and that the plaintiff did indeed rely on that bid, and in so doing put himself in a detrimental position and incurred damages, then you may find that the bid should be enforced. . . . Now, in determining whether or not the terms of the contract were reasonably certain at the time of the offer and acceptance, you should be aware that there may be a difference between a situation where the parties disagree on a term at the time of the offer and acceptance and one where the parties do not discuss a material term before the offer and acceptance. If a material or important term is left out, then you may determine if that term can be implied into the contract. If you find that there are such customs and that both parties have reason to know them and intended to be bound by them, then you may find that those customs are implied terms of the contract.”


author: Daly, J.

text:
    Kaspar Associates, Inc. v. Ronald Esposito
    (4604)
    Borden, Daly and O’Connell, Js.
    Argued October 9, 1987 —
    decision released February 23, 1988

      Laurence V. Parnoff, for the appellant (defendant).

      Elaine M. Scanlon, for the appellee (plaintiff).
   Daly, J.

This appeal arises from an action to recover damages for engineering services. In the counterclaim, the defendant alleged incomplete performance by the plaintiff. The jury returned a verdict for the plaintiff in the amount of $17,910.56. The jury returned two verdicts on the counterclaim, one for the plaintiff and one for the defendant. The trial court set aside the jury’s verdict for the defendant on the counterclaim. The defendant claims (1) that the jury’s verdict was inconsistent, and (2) that the evidence was insufficient to support an award of damages to the plaintiff. We find no error.

The jury could reasonably have found the following facts. The defendant, a land developer, purchased two parcels of land in Tolland in order to subdivide and develop them. After purchasing the property, the defendant contracted with the plaintiff to present a subdivision plan for one parcel to the Tolland planning and zoning commission. While the parties initially entered into an agreement for certain preliminary work, it was later modified orally by the parties. The modified agreement increased the work required of the plaintiff to “all work necessary” to present the proposed subdivison to the planning and zoning commission. For these additional services, the defendant agreed to compensate the plaintiff on an hourly basis. The defendant contended that the plaintiff guaranteed subdivision approval by the planning and zoning commission and that payment was contingent upon approval. Ultimately, the commission did not approve the subdivision plan. This action was instituted upon the defendant’s refusal to pay for the plaintiff’s services.

At trial, the plaintiff presented evidence as to the exact nature of the work performed. The work was extensive as the land was difficult to subdivide. Testimony by the plaintiff’s employees indicated that the defendant was always made aware of the nature, scope, and cost of the work. The plaintiff’s employees also testified that, throughout their working relationship with the defendant, he requested that all work necessary be performed in an attempt to get the subdivision approval.

The defendant’s counterclaim was based upon the failure of the plaintiff to secure approval of the subdivision plan. The only evidence presented by the defendant in support of his counterclaim was his own testimony that the plaintiff “guaranteed” that the defendant would obtain subdivision approval. The defendant failed to submit any evidence pertaining to his alleged damages.

In his first claim of error, the defendant alleges that the jury, having found for him on the counterclaim, could not also find for the plaintiff on the complaint. Although the defendant attempts to further his claim of error by using inconsistent verdict rubric, he does not claim that the trial court erred in setting aside the verdict in his favor on the counterclaim. The trial court rendered judgment for the plaintiff on both the complaint and the counterclaim, and eliminated any inconsistency.

The defendant’s second claim of error is that the evidence was insufficient to permit the award of damages to the plaintiff. Specifically, the defendant contends that the plaintiff presented no evidence on the value of its services. “Once again, this court is compelled to state, what has become a tired refrain, we do not retry the facts or evaluate the credibility of witnesses.” Bowman v. Williams, 5 Conn. App. 235, 238, 497 A.2d 1015 (1985), cert, dismissed, 201 Conn. 366, 516 A.2d 1351 (1986), and cases cited therein. We find that there was sufficient evidence, if believed by the jury, to award damages to the plaintiff.

There is no error.

In this opinion the other judges concurred.

       We note that the interrogatories answered by the jury in this case aided the trial court in determining what the proper verdict should be. Our Supreme Court has held that, “[t]he purpose of interrogatories is to elicit ‘a determination of material facts, [and] to furnish the means of testing the correctness of the verdict rendered, and of ascertaining its extent.’ ” Ubysz v. DiPietro, 185 Conn. 47, 62, 440 A.2d 830 (1981), quoting Gaulton v. Reno Paint & Wallpaper Co., 177 Conn. 121, 125, 412 A.2d 311 (1979). In response to interrogatories submitted to it by the defendant in this case, the jury stated that the “Agreement [between the parties] was to perform any and all services required to obtain subdivision for the property in question.” It is clear from this response that the jury determined that the contract was an agreement to perform services, not one which guaranteed any specific results.


author: Foti, J.

text:
    Karen Greene v. Richard Greene
    (5074)
    Daly, Norcott and Foti, Js.
    Argued December 8, 1987 —
    decision released February 23, 1988

      Charles T. Busek, for the appellant (defendant).

      Robert K. Lesser, with whom, on the brief, was Toby M. Schaffer, for the appellee (plaintiff).
   Foti, J.

The defendant appeals from the granting by the trial court of the plaintiff’s motion to modify that portion of the judgment of dissolution relating to alimony. The issues raised on appeal are that the court erred (1) in finding a change of circumstances to be unforeseen, (2) in finding that the plaintiff had unmet needs that required an increase in alimony, (3) in awarding counsel fees to the plaintiff, (4) in its conduct of the trial, and (5) in failing to rule on the plaintiffs motion to open. We find no error.

The parties’ marriage was dissolved in 1980. The dissolution decree incorporated by reference an oral stipulation of the parties. The defendant was ordered to pay alimony in the amount of $8000 per year payable in monthly installments until the plaintiff’s death or remarriage. The stipulation provided that the plaintiff would receive her purported interest in Data Switch Company (Data Switch), which was founded by the defendant in 1977, in the amount of $126,000 lump sum alimony to be paid in 1986 or upon the refinance of a small business administration loan held by the company. The stipulation further provided that there could be no motion for modification unless the defendant earned more than $36,000 per year or the plaintiff earned more than $15,000 per year.

At the time of the dissolution, the defendant had been the chairman of the board and president of Data Switch; his annual income had been approximately $27,000. In 1982, Data Switch stock was publicly offered, greatly increasing the defendant’s net worth. The defendant’s earnings rose to $125,000 annually and by October, 1985, his assets were valued between $14,000,000 and $18,000,000. At that time, the plaintiff demanded and received an accelerated payment of $126,000 for her stock interest.

The court found that the public offering which occurred approximately two years after the dissolution was not reasonably foreseeable. The court found “that the general economic climate at the time of the divorce, as well as the economic status of Data Switch itself was too speculative to reasonably foresee what would happen some two years later.” The court further found that the agreement itself contained a “second look” provision allowing for a reconsideration of the alimony if either party’s income changed substantially.

I

The defendant first claims that the court erred in concluding that the defendant’s change in circumstances was unforeseeable.

It is well established that the action of the trial court will not be disturbed unless the court has abused its discretion or its finding has no reasonable basis in the facts. Rose v. Rose, 10 Conn. App. 391, 393, 523 A.2d 914 (1987). It is also well settled that this court will not substitute its judgment for that of the trial court. Gallagher v. Gallagher, 11 Conn. App. 509, 514, 528 A.2d 379 (1987); Vanderlip v. Vanderlip, 1 Conn. App. 158, 159, 468 A.2d 1253 (1984). “We decide, not whether we would have drawn the same inferences or found the same facts, but whether the trial court could have reasonably done so. Grayson v. Grayson, 4 Conn. App. 275, 294, 494 A.2d 576 (1985), appeal dismissed, 202 Conn. 221, 520 A.2d 225 (1987).” Schofield v. Schofield, 12 Conn. App. 521, 523-24, 532 A.2d 587 (1987).

In this case, we cannot conclude that the court’s finding that the parties had not contemplated the defendant’s increase in earnings and net worth due to the public offering of the stock had no reasonable basis in fact. The court concluded that the offering itself was only thought of in a generalized way prior to the dissolution, and that the discussions regarding public offerings were hopes and dreams, but not a realistic or a contemplated plan. This conclusion had a sufficient basis in the evidence presented.

II

The defendant’s second claim is that the court erred in finding that the plaintiff had unmet needs which required an increase in alimony from $8000 per year to $42,000 per year.

The court reached this conclusion after finding that the plaintiff had depleted her assets by approximately $57,000 from the time of the dissolution. In reviewing the factual findings of the trial court, we limit our review to whether those findings are clearly erroneous. Practice Book § 4061; Cookson v. Cookson, 201 Conn. 229, 243, 514 A.2d 323 (1986). Our role in this review is limited to determining whether the trial court’s findings are “ ‘ “unsupported by the record, incorrect, or otherwise mistaken.” ’ ” Lupien v. Lupien, 192 Conn. 443, 445, 472 A.2d 18 (1984), quoting Kaplan v. Kaplan, 186 Conn. 387, 392, 441 A.2d 629 (1982). There is nothing in the record here that supports the defendant’s claim that the court’s findings were clearly erroneous. Rather, it is evident from the record that the trial court properly considered the statutory criteria enumerated in General Statutes § 46b-82, and took all of these factors into consideration in arriving at its determination. Noce v. Noce, 181 Conn. 145, 149, 434 A.2d 345 (1980).

Ill

The defendant next claims that the court erred in awarding counsel fees from the defendant in the amount of $5000 to the plaintiff to defend this appeal.

The trial court may, pursuant to General Statutes § 46b-62, award counsel fees to a party in a dissolution action in accordance with their respective financial abilities and the criteria set forth in § 46b-82. Holley v. Holley, 194 Conn. 25, 34, 478 A.2d 1000 (1984). “ ‘That a party has sufficient funds to pay the attorney does not preclude an award for counsel fees. Arrigoni v. Arrigoni, 184 Conn. 513, 519, 440 A.2d 198 (1981). Rather, the question the court must address is whether the defendant had ample liquid funds to pay counsel fees. Koizim v. Koizim, 181 Conn. 492, 435 A.2d 1030 (1980).” Eldridge v. Eldridge, 4 Conn. App. 489, 494, 495 A.2d 283 (1985). In determining whether a party has “ample liquid funds” to pay counsel fees the trial court must examine the total financial resources of the parties in light of the statutory criteria. Venuti v. Venuti, 185 Conn. 156, 163, 440 A.2d 878 (1981). “The allowance and amount of counsel fees is left to the exercise of judicial discretion, and the availability of funds with which to pay the attorney’s fees of the spouse claiming the allowance is not an absolute standard for denying the award. Anderson v. Anderson, 191 Conn. 46, 59, 463 A.2d 578 (1983); Fitzgerald v. Fitzgerald, 190 Conn. 26, 30, 459 A.2d 498 (1983).” Lev v. Lev, 10 Conn. App. 570, 574, 524 A.2d 674 (1987). Further, a posttrial award of attorney’s fees to defend an appeal is allowable. Friedlander v. Friedlander, 191 Conn. 81, 87-88, 463 A.2d 587 (1983). We find no abuse of discretion in the court’s award of attorney’s fees to defend this appeal.

IV

The defendant’s remaining claims require little discussion. The court did not err or abuse its discretion by hearing this matter over a long period of time in order to accommodate the parties, nor in asking questions of certain witnesses to clarify points raised. Nor is there any merit to the defendant’s claim that the court erred in viewing a newspaper article, which was not in evidence, detailing the losses sustained by Data Switch. There is no record of the defendant ever objecting to the court’s viewing of the article; it is axiomatic that claims of error must ordinarily be preserved at trial, in order to afford full appellate review. Practice Book § 288; see also Sternberg v. Infante, 13 Conn. App. 473, 537 A.2d 523 (1988).

Finally, the defendant’s claim that the trial court erred by failing to rule on the plaintiff’s motion to open and the defendant’s opposition to that motion, is merit-less. The plaintiff’s motion to open sought essentially the same relief that she sought in her motion to modify. The court, therefore, impliedly denied the motion to open when it granted relief under the latter motion.

There is no error.

In this opinion the other judges concurred.

       We note that General Statutes § 46b-86 (a) which provides for modification of alimony or support “upon a showing of a substantial change in the circumstances of either party,” has been repealed and substituted by Public Acts 1987, No. 87-104, which provides in relevant part that after the dissolution of a marriage “modification may be made upon a showing of such substantial change of circumstances, whether or not such change of circumstances was contemplated at the time of dissolution. By written agreement, stipulation or by decision of the court, those items or circumstances that were contemplated and are not to be changed may be specified in the written agreement, stipulation or decision of the court.” (Emphasis added.) This act was not effective until October 1, 1987. See Labow v. Labow, 13 Conn. App. 330, 344-45 n.5, 537 A.2d 157 (1988).

       General Statutes § 46b-82. (Formerly Sec. 46-52) provides: “alimony. At the time of entering the decree, the superior court may order either of the parties to pay alimony to the other, in addition to or in lieu of an award pursuant to section 46b-81. The order may direct that security be given therefor on such terms as the court may deem desirable, including an order to either party to contract with a third party for periodic payments or payments contingent on a life to the other party. In determining whether alimony shall be awarded, and the duration and amount of the award, the court shall hear the witnesses, if any, of each party, except as provided in subsection (a) of section 46b-51, shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to section 46b-81, and, in the case of a parent to whom the custody of minor children has been awarded, the desirability of such parent’s securing employment.”


text:
    Francis V. Woycik et al. v. Joseph F. Woycik et al.
    (4342)
    Borden, O’Connell and Stoughton, Js.
    Argued January 5 —
    decision released February 23, 1988

      Peter W. Rotella, with whom, on the brief, was A. A. Washton, for the appellants-appellees (defendants).

      William J. Willetts, Jr., with whom, on the brief, was Griswold Morgan, for the appellees-appellants (plaintiffs).
   Borden, J.

This is an action to quiet title. The trial court concluded that the plaintiffs had acquired title by adverse possession to an area of land occupied by a metal shed. The defendants appeal, contending that the findings of the trial court are clearly erroneous. The principal issue on this appeal is whether the trier of fact can rely upon inferences in concluding that adverse possession has been proven. We conclude that it can, and we find no error.

The trial court found the following facts. The plaintiffs own a tract of land adjacent to one owned by the defendants. The properties were each conveyed to the parties from a common grantor in 1965. Eventually, a dispute over the common boundary of their properties developed.

Within the disputed area there is a metal shed which is located entirely on what was the defendants’ land. The metal shed was erected in 1976 on the site of an older, larger shed, using part of the footings of the former shed. The plaintiffs had used the former shed since 1965. The present shed was erected under the direction of the named plaintiff and was thereafter used by him and his tenants. The defendants looked on as the present shed was built.

The court concluded that the plaintiffs had failed to prove adverse possession of the disputed area, with the exception of the area occupied by the shed, because the land had been used in common by the parties. The court did find by “clear and positive proof,” however, that the area occupied by the present shed and its predecessor were under the sole use and control of the plaintiffs, to a degree that the plaintiffs maintained exclusive and uninterrupted possession of that limited area and ousted the defendants from possession uninterruptedly for a period of more than fifteen years. Accordingly, the court found for the plaintiffs on their claim of adverse possession to that limited portion of the disputed area.

“In order to establish adverse possession, the claimant must oust an owner of possession and keep such owner out uninterruptedly for fifteen years by an open, visible, and exclusive possession under a claim of right with intent to use the property as his own and without the consent of the owner.” Clark v. Drska, 1 Conn. App. 481, 485, 473 A.2d 325 (1984). “The use is not exclusive if the adverse user merely shares dominion over the property with other users. . . . Such a possession is not to be made out by inference, but by clear and positive proof. ... In the final analysis, whether possession is adverse is a question of fact for the trier.” (Citation omitted.) Whitney v. Turmel, 180 Conn. 147, 148, 429 A.2d 826 (1980).

I

The defendants first argue that the evidence does not support the court’s conclusion that the shed was under the exclusive possession of the plaintiffs. The only evidence probative of exclusive possession of the area occupied by the metal shed was that the shed was erected at the direction of the named plaintiff and used to store his lawnmower, rakes and snow shovel. While the defendants acknowledge that it may have been reasonable to infer from those facts that the defendants did not make use of the shed and that the plaintiffs’ use was to the exclusion of the defendants, they argue that proof of that essential element of a claim of adverse possession by such an inference does not constitute clear and positive proof of exclusive possession. We disagree.

The defendants’ argument rests upon language found in Whitney v. Turmel, supra, that exclusive possession “is not to be made out by inference.” Id. In support of this proposition, Whitney relies on dictum in Robinson v. Myers, 156 Conn. 510, 517, 244 A.2d 385 (1968), which in turn quotes identical language in Hurlburt v. Bussemey, 101 Conn. 406, 412, 126 A. 273 (1924), which quotes Huntington v. Whaley, 29 Conn. 391, 398 (1860). This concept that adverse possession “is not to be made out by inference,” however, can be properly understood only by a thorough examination of Huntington v. Whaley, supra, where the principle appears to have originated in Connecticut jurisprudence.

In Huntington v. Whaley, supra, a stone wall, three feet wide, was the subject of a boundary dispute. The wall was set wholly on the plaintiffs’ land. For more than fifteen years, the defendant held exclusive possession of his own land up to the wall. On the basis of this fact and his belief that the center of the wall divided the parties’ property, the defendant claimed to have ownership of the wall to its center by adverse possession. After the jury returned a verdict for the defendant, the plaintiffs challenged the court’s instruction to the jury to the effect “that if they should find that the defendant, and those under whom he claimed title, had occupied the land on the west side of the wall up to the wall, supposing and believing the wall to be the dividing line between the lands in question, and had always treated the centre of the wall as the dividing line without objection, such occupancy would be presumptive evidence of the place of the true line . . . . ” (Emphasis added.) Id., 393. In argument before our Supreme Court, the defendant sought to justify this jury instruction on the basis of the well settled proposition that “[wjhere a person occupies land to the side of a stone wall, ditch, unnavigable river, or other divisional fence between him and the adjoining proprietor, the presumption of law is that the centre of such divisional fence is the true dividing line, and such presumption and inference of law can only be rebutted by proof of an express limitation or restriction of such occupancy.” Id., 394.

The Huntington court rejected this argument. It concluded that “[t]he suggestion in the charge therefore, that the defendant’s occupancy of his own land in the manner claimed would be presumptive evidence of the place of the true line between the lands, seems to have had no application to the issue, and we think it was calculated to mislead the jury. The only legitimate inquiry for the jury was, whether the defendant, and those under whom he claimed, had, for the period of fifteen years, had the actual, open, adverse occupancy and possession of the controverted property, claiming it as their own, and actually excluding all other persons from its possession; and there was no presumption, either of law or of fact, that the property was out of the possession of its real owner, or in the adverse occupancy of the defendant or any other person.” Id., 398. From this analysis, the court set forth the following, oft-quoted, principles: “The doctrine of adverse possession is to be taken strictly. An adverse possession is not to be made out by inference, but by clear and positive proof. Every presumption is in favor of possession in subordination to the title of the true owner.” Id.

Despite its unfortunate reference to proof “by inference,” we read Huntington v. Whaley, supra, to condemn only the use of presumptions to aid the proof of essential elements of a claim of adverse possession, not inferences. At issue in Huntington was a jury charge which permitted the jury, in effect, to assume the existence of facts, through the aid of a rule of law and without any proof on the issue — that is, a presumption. See Clark v. Diefendorf 109 Conn. 507, 510, 147 A. 33 (1929) (“the presumption is not itself evidence and operates merely to obviate the necessity of producing evidence in the particular situation before the court”); Morford v. Peck, 46 Conn. 380, 385 (1878); 29 Am. Jur. 2d, Evidence §§ 163-165. An inference, by contrast, is based on “[circumstantial evidence [and] involves the offering of evidence of facts from which the trier is asked to infer the existence of, and, so, to find proved another fact or facts. Such fact or facts may be proved, if, and only if, the trier finds that the facts from which he is asked to draw the inference are proven and the inference is not only logical and reasonable, but strong enough, so that it can be found that it is more probable than otherwise that the fact to be inferred is true.” B. Holden & J. Daly, Connecticut Evidence § 64 (b); see also Morford v. Peck, supra, 385; 29 Am. Jur. 2d, Evidence §§ 161, 162.

We can conceive of no reason why facts proved to the satisfaction of the trier which logically and reasonably lead to the establishment of other facts — that is, inferences — may not aid in the proof of a claim of adverse possession. Furthermore, none of the Connecticut cases employing the “not to be made out by inference” language of the Huntington-Robinson-Whitney line of cases directly addresses or turns on the use of drawing inferences to support a finding of adverse possession. See Roche v. Fairfield, 186 Conn. 490, 498, 442 A.2d 911 (1982); LaPre v. Nibo Films, Ltd., 10 Conn. App. 669, 672 n.3, 525 A.2d 140 (1987). The rule that an adverse possession claim requires a higher burden of persuasion than is required in the ordinary civil case; Clark v. Drska, supra; does not require that the proof establishing the claim be based entirely on direct evidence, as opposed to circumstantial evidence and the logical and reasonable inferences to be drawn therefrom. The law does not impose such a mental straight jacket on the trier of fact in an adverse possession case.

Our conclusion here is in accord with the rule on inferences to be drawn from circumstantial evidence with respect to proof of fraud, which likewise requires clear and convincing proof; DeLuca v. C. W. Blakeslee & Sons, Inc., 174 Conn. 535, 546-47, 391 A.2d 170 (1978); Morford v. Peck, supra; and the similar rule with respect to proof of criminal liability, which requires proof beyond a reasonable doubt. State v. Brown, 169 Conn. 692, 695, 364 A.2d 186 (1975). Just as fraud is not to be presumed; DeLuca v. C. W. Blakeslee & Sons, Inc., supra, 546; adverse possession is not to be presumed. Huntington v. Whaley, supra, 398. This does not mean, however, that inferences may not be properly used in such cases to support a finding of adverse possession by clear and positive proof. See DeLuca v. C. W. Blakeslee & Sons, Inc., supra; Morford v. Peck, supra.

In the present case, the trial court acted well within its discretion when it inferred from the fact that the plaintiffs built the metal shed and stored their property therein, that this use was to the exclusion of the defendants. Accordingly, we conclude that the use of that inference from clearly established facts properly supported the court’s ultimate conclusion that the plaintiffs had proved their claim of adverse possession by clear and positive proof.

II

The defendants also claim that the court’s finding that they had been excluded without interruption from possession of the shed area for a fifteen year period was contrary to the undisputed evidence and therefore was clearly erroneous. At trial, the defendants introduced evidence that in 1978 their attorney wrote a letter to the plaintiffs’ attorney demanding the removal of the metal shed from the defendants’ property. The defendants claim, therefore, that this assertion of title interrupted the plaintiffs’ possession, as a matter of law, before the fifteen years required for adverse possession had elapsed. We disagree.

“[P]ossession [which is] actual, visible and notorious, exclusive, continuous and hostile . . . would give the plaintiff[s] title by adverse possession unless the running of the statute was shown by other facts to have been effectively interrupted.” Ahern v. Travelers Ins. Co., 108 Conn. 1, 4-5, 142 A. 400 (1928). In order to interrupt continued adverse possession, the record owner “ ‘must assert his claim to the land, perform some act that would reinstate him in possession, before he can regain what he has lost.’ ” (Emphasis added.) Id., 7, quoting Burrows v. Gallup, 32 Conn. 493, 499 (1865). A demand letter, however, is not an act which would “reinstate [the defendants] in possession.” Merely apprising the plaintiffs of the defendants’ claim to the disputed area does not disturb the plaintiffs’ possession, because there has been no “entry” as required by statute; see General Statutes § 52-575; and because the plaintiffs “could have maintained no action on account of it.” Huntington v. Whaley, supra, 398. Moreover, we note that our Supreme Court, in a case in which even more effort was used to interrupt a continuing adverse possession than was asserted here, pointed out long ago that “it has never been held that an isolated instance of attempted interruption of the user, resulting in no actual interruption, and followed by no attempt to test the right, would as a matter of law necessarily destroy the presumption of a grant founded on a user in other respects sufficient.” Connor v. Sullivan, 40 Conn. 26, 30 (1873). A demand letter, like “[a] verbal protest by the owner against occupancy of the land by an adverse holder, without an actual entry or an action by the owner, is without avail, because the owner is still disseised; the statute is not interrupted by the owner’s notice to an occupant that a [shed] has been built over on the lot of the owner, in the absence of any overt act by the owner to oust the occupant.” 3 Am. Jur. 2d, Adverse Possession § 124.

There is no error on the appeal; the cross appeal is dismissed.

In this opinion the other judges concurred.

       The plaintiffs filed a cross appeal. They failed, however, to brief the sole issue raised by that cross appeal. Accordingly, the cross appeal must be dismissed. Practice Book § 4055.

       In Clark v. Drska, 1 Conn. App. 481, 473 A.2d 325 (1984), this court held that “clear and positive proof” required to prevail'on a claim of adverse possession is the same standard as “clear and convincing proof,” that is, “a degree of belief that is between the belief required in the average civil case and the belief of guilt beyond a reasonable doubt required in a criminal action.” Id., 487. This burden of persuasion requires a reasonable belief that the facts asserted are highly probably true or that the probability that they are true is substantially greater than the probability that they are false. Id.

       The relevant portion of the May 17, 1978 demand letter to the plaintiffs’ attorney stated:
      “This is also to demand that the storage shed presently located in part on land of Mr. and Mrs. Joseph Woycik be removed. It is my understanding that you have received a copy of a plan prepared by Mr. Douglas Lowe which, among other things, shows this present encroachment.
      “It is hoped that these matters will be tended to immediately so that further action may be unnecessary. Thank you for your cooperation in this matter.”

       “[General Statutes] Sec. 52-575. entry upon land to be made within fifteen years. No person shall make entry into any lands or tenements but within fifteen years next after his right or title to the same first descends or accrues; and every person, not entering as aforesaid, and his heirs, shall be utterly disabled to make such entry afterwards; and no such entry shall be sufficient, unless an action is commenced thereupon and prosecuted to effect within one year next after such entry; but, if any person who has such right or title of entry into any lands or tenements is, at the time of the first descending or accruing of such right or title, a minor, non compos mentis or imprisoned, he and his heirs may, notwithstanding the expiration of such fifteen years, bring such action or make such entry at any time within five years next after full age, coming of sound mind or enlargement out of prison, or his heirs shall, within five years after his death, bring such action, or make such entry, and take benefit of the same; provided the limitation herein prescribed shall not begin to run against the right of entry of any owner of a remainder or reversionary interest in real estate, which is in the adverse possession of another, until the expiration of the particular estate preceding such remainder or reversionary estate.”