author: LANDAU, J.

text:
    COMMISSION ON HUMAN RIGHTS AND OPPORTUNITIES v. HUMAN RIGHTS REFEREE OF THE COMMISSION ON HUMAN RIGHTS AND OPPORTUNITIES ET AL.
    (AC 20352)
    Landau, Mihalalcos and Dupont, Js.
    Argued July 11

    officially released October 9, 2001

      Charles Krich, with whom, on the brief, was Philip A. Murphy, Jr., commission counsel, for the appellant (plaintiff).

      Natasha M. Lipcan, with whom, on the brief, was Daniel L. Schwartz, for the appellee (defendant Olsten Services, Inc.).

       This case was first argued on June 4, 2001. After argument, counsel for one of the parties advised this court that a member of the panel had a potential conflict of interest. The panel was reconfigured, and the case was argued before the new panel on July 11, 2001.

   Opinion

LANDAU, J.

The plaintiff, the commission on human rights and opportunities (commission), appeals from the judgment of the trial court rendered following the granting of the motion of the defendant Olsten Services, Inc. (Olsten), to dismiss the commission’s administrative appeal for lack of subject matter jurisdiction due to the commission’s failure to exhaust administrative remedies. On appeal, the commission claims that (1) the court improperly concluded that it was required to exhaust administrative remedies and (2) its appeal was taken from a final decision of the hearing referee. We agree with the commission’s first claim and, therefore, do not address its second claim. We reverse the judgment of the trial court.

The following facts and procedural history are relevant to the issues raised on appeal. Olsten, a temporary employment agency, employed the defendant Kim Brown and assigned her to work at the defendant Lacey Manufacturing Company (Lacey). Brown was on assignment at Lacey for thirty-six weeks until she was terminated by Olsten. On August 4, 1998, Brown filed an employment discrimination complaint with the commission, alleging that Lacey had discriminated against her on the basis of her race, color, sex and age. On September 9, 1998, Brown amended her complaint to add Olsten as a respondent.

Olsten did not respond to Brown’s complaint and, on, December 29, 1998, the acting executive director of the commission entered an order of default against Olsten and scheduled a hearing in damages. At the hearing in damages, the commission’s presiding human rights referee, the named defendant (referee), granted Olsten’s motion to open the order of default and remanded the complaint to the investigative unit of the commission for further proceedings.

In its administrative appeal to the Superior Court, the commission claimed that the referee exceeded her authority by opening the default order of its acting executive director. Olsten filed a motion to dismiss the appeal for lack of subject matter jurisdiction on the grounds that the commission did not exhaust its administrative remedies and the exceptions to the exhaustion requirement did not apply. The court agreed with Olsten and granted the motion to dismiss. The commission filed a motion to reargue, which the court denied. This appeal followed.

We first set forth our standard of review. “The standard of review of a motion to dismiss is . . . well established. In ruling upon whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader. . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction. . . . Because the exhaustion [of administrative remedies] doctrine implicates subject matter jurisdiction, [the court] must decide as a threshold matter whether that doctrine requires dismissal of the [plaintiffs] claim. . . . [B]ecause [a] determination regarding a trial court’s subject matter jurisdiction is a question of law, our review is plenary.” (Internal quotation marks omitted.) Lucas v. Riordan, 62 Conn. App. 566, 568-69, 771 A.2d 270 (2001).

The commission initially claims that the court improperly concluded that it was required to exhaust its administrative remedies. More specifically, the commission claims that it need not exhaust its administrative remedies because pursuit of an administrative remedy would be useless. We agree.

“ ‘It is well established that the right to appeal an administrative action is created only by statute and a party must exercise that right in accordance with the statute in order for the court to have jurisdiction.’ ” Johnson v. Dept. of Public Health, 48 Conn. App. 102, 110, 710 A.2d 176 (1998). General Statutes § 4-183 (b) provides that “[a] person may appeal a preliminary, procedural or intermediate agency action or ruling to the Superior Court if (1) it appears likely that the person will otherwise qualify under this chapter to appeal from the final agency action or ruling and (2) postponement of the appeal would result in an inadequate remedy.” General Statutes § 4-183 (b) reflects the principle that the exhaustion of administrative remedies is a prerequisite to the Superior Court’s jurisdiction absent exceptional circumstances. Doe v. Dept. of Public Health, 52 Conn. App. 513, 519, 727 A.2d 260, cert. denied, 249 Conn. 908, 733 A.2d 225 (1999); Johnson v. Dept. of Public Health, supra, 112. “An adequate remedy at law is one which is specific and adapted to securing the relief sought conveniently, effectively and completely. . . . Moreover, the doctrine of exhaustion of remedies does not apply in situations where pursuit of the administrative remedy would be useless. Maresca v. Ridgefield, 35 Conn. App. 769, 773, 647 A.2d 751 (1994).” (Citation omitted; internal quotation marks omitted.) O’Halloran v. Charlotte Hungerford Hospital, 63 Conn. App. 460, 464-65, 776 A.2d 514 (2001). For the reasons detailed in this opinion, the exhaustion doctrine does not apply because the commission will be aggrieved by the final decision of the agency and the pursuit of an administrative remedy would be useless.

On remand, the investigator would be required to “make a finding of reasonable cause or no reasonable cause . . . that a violation of section 46a-64c has occurred . . . .” General Statutes § 46a-83 (d). If the investigator makes “a determination that there is reasonable cause to believe that a discriminatory practice has been or is being committed as alleged in the complaint, an investigator shall attempt to eliminate the practice complained of . . . .” General Statutes § 46a-83 (f). Where “the investigator fails to ehminate the discriminatory practice complained of ... he shall, within ten days, certify the complaint and the results of the investigation to the executive director of the commission and to the Attorney General.” General Statutes § 46a-84 (a). “[T]he executive director of the commission . . . shall appoint a hearing officer, hearing adjudicator or human rights referee to act as a presiding officer to hear the complaint or to conduct settlement negotiations . . . .” General Statutes § 46a-84 (b).

Upon hearing the complaint, if “the presiding officer finds that a respondent has engaged in any discriminatory practice, the presiding officer shall state his findings of fact and shall issue and file with the commission and cause to be served on the respondent an order requiring the respondent to cease and desist from the discriminatory practice and further requiring the respondent to take such affirmative action as in the judgment of the presiding officer shall effectuate the purpose of [the commission].” General Statutes § 46a-86 (a). If, however, the investigator issues a finding of no reasonable cause, the complaint may be dismissed. General Statutes § 46a-83 (e).

In short, on remand, the complaint will be resolved on its merits. The court, in its memorandum of decision on Olsten’s motion to dismiss, concluded that on remand the investigation and adjudication of the complaint could put the commission in the same position that it was in at the time that its acting executive director entered the default order. The commission, however, is neither the complainant nor a respondent in the underlying matter and disposition on the merits cannot make the commission whole. In its administrative appeal, the commission challenged the referee’s authority to open the default judgment entered by its acting executive director. The commission’s concern in its administrative appeal is with the process of adjudication of the complaint, not with the merits of the complaint. Therefore, even if a remand results in a hearing in damages for the complainant, thereby putting her in the same position as she was in at the time that the default order was issued, the commission would still suffer harm, as default judgments entered by its executive director would still be subject to review by its referees. Because the commission will be aggrieved by the agency’s final decision and it does not have an adequate remedy via the administrative process, the court improperly dismissed its administrative appeal for failure to exhaust administrative remedies.

The judgment is reversed and the case is remanded for further proceedings.

In this opinion the other judges concurred.

       The other defendants are the named defendant, Lacey Manufacturing Company and Kim Brown. On appeal, only Olsten filed a brief.

       In its brief, the commission argues that its administrative appeal was taken from a final decision of the referee and that, therefore, the trial court has jurisdiction over the appeal pursuant to General Statutes § 4-183 (a). Section 4-183 (a) provides in relevantpart that “[a] person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision may appeal to the Superior Court as provided in this section. . . .” Because we conclude that the trial court had jurisdiction over the appeal pursuant to General Statutes § 4-183 (b), which provides for an interlocutory appeal from an agency decision, we need not decide whether the referee’s order was a final decision.

       Olsten terminated Brown at the request of Lacey.

       General Statutes § 46a-83 (i) provides in relevant part: “The executive director of the commission . . . may enter an order of default against a respondent (1) who, after notice, fails to answer a complaint .... Upon entry of an order of default, the executive director . . . shall appoint a presiding officer to enter, after notice and hearing, an order eliminating the discriminatory practice complained of and making the complainant whole. . . .”

       The defendant cites Johnson v. Dept. of Public Health, supra, 48 Conn. App. 109-11, for the proposition that exhaustion is required even in cases where an agency’s authority has been challenged. While we agree that generally exhaustion is required where an agency’s authority has been challenged, we reject the implication that the general rule vitiates the exception carved out by § 4-183 (b). Johnson itself cites to § 4-183 (b) as authority for allowing interlocutory appeals of administrative actions. Id., 112-13.


source: Caselaw Access Project

author: PETERS, J.

license: Public Domain

text:
    BOARD OF EDUCATION OF THE TOWN OF EAST HAVEN v. EAST HAVEN EDUCATION ASSOCIATION
    (AC 20859)
    Lavery, C. X, and Landau and Peters, Js.

      Argued June 5
    officially released October 16, 2001

      Christopher M. Hodgson, for the appellant (plaintiff).

      Ronald Cordilico, for the appellee (defendant).
   Opinion

PETERS, J.

Our Supreme Court has recently reviewed the principles governing arbitration, including the purpose of the arbitration process, the role of the arbitrator and the scope of judicial review of arbitral awards. See South Windsor v. South Windsor Police Union Local 1480, Council 15, 255 Conn. 800, 770 A.2d 14 (2001). In this case of first impression, we must determine how best to apply those principles to resolve an issue concerning the scope of a trial court’s remedial authority after an arbitral award has been vacated. General Statutes § 52-418 (b). It is undisputed that the arbitral award was vacated, not for corruption, partiality or bias, but because the arbitrator exceeded the arbitral authority granted by the submission to arbitration of a collective bargaining agreement and failed to decide the appropriate remedy. Once an award has been vacated for such a reason, § 52-418 (b) authorizes a trial court to order a rehearing. The principal question before us is whether the court may direct the rehearing to be held before the original arbitrator rather than a new arbitrator. A secondary question is whether the rehearing contemplated by the statute must always be a hearing de novo. We are persuaded that the trial court did not abuse its discretion in either part of its remand order. Accordingly, we affirm the judgment of the court, which remanded the case to the original arbitrator without instruction about the evidence that might be presented at the rehearing.

I

FACTUAL AND PROCEDURAL HISTORY

The plaintiff, the East Haven board of education (board), and the defendant, the East Haven Education Association (association), are parties to a collective bargaining agreement that provides grievance procedures and permits arbitration of disputes. The parties disagreed about the effect on the teachers’ workload of a “block schedule” for a designated school year. Because the parties were unable to resolve the dispute through the stipulated grievance procedures, they submitted their disagreement to an arbitrator. The arbitrator ruled in favor of the association. Pursuant to § 52-418 (b), the board brought an action challenging the validity of this arbitration award.

After reviewing the arbitral award, the court accepted the view of both parties that, pursuant to § 52-418 (a) (4), the arbitral award should be vacated because it was defective in two respects. First, the arbitrator exceeded her powers by deciding that the board’s actions violated the collective bargaining agreement without restricting her award to the submitted issue, which was limited to the board’s actions in the designated school year. Second, the arbitrator’s award was not mutual, final or definite because the arbitrator ordered no specific remedy and instead instructed the parties to negotiate their own remedy. Having decided that a vacatur was required by § 52-418 (b), the court remanded the matter to the original arbitrator for further proceedings. The court order, furthermore, conferred upon the arbitrator the discretion to decide whether to receive “substantial new submissions” during the course of the rehearing.

The board has appealed from the court’s order vacating the award and remanding the matter to the original arbitrator. The board claims that § 52-418 (b) requires the court, upon vacating an arbitration award, to order a de novo hearing before a new arbitrator. To the contrary, the association asserts that § 52-418 (b) affords discretion to the court to determine whether the rehearing should be held before the original arbitrator or a new arbitrator and that the court did not abuse its discretion in the present case by ordering a rehearing before the original arbitrator. This appeal turns, therefore, on the proper construction of § 52-418 (b). We agree with the construction proffered by the association and affirm the judgment of the court.

The standard for appellate review of a matter of statutory construction is well established. “Statutory construction is a question of law and therefore our review is plenary. . . . [0]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter. ... [A] statute is to be considered as a whole, with a view toward reconciling its separate parts in order to render an overall reasonable interpretation . . . .” (Citation omitted; internal quotation marks omitted.) State v. AFSCME, Council 4, Local 1565, 249 Conn. 474, 478-79, 732 A.2d 762 (1999).

II

THE LAW OF ARBITRATION

We undertake the construction of § 52-418 (b) with the understanding that the law in this state takes a strongly affirmative view of consensual arbitration. Arbitration is “a favored procedure in this state.” Waterbury Teachers Assn. v. Waterbury, 164 Conn. 426, 434, 324 A.2d 267 (1973). “Early in our judicial histoiy we expressed the view that, since arbitration is designed to prevent litigation, it commands much favor from the law. . . . Especially is it to be encouraged as a means of promoting tranquility and the prompt and equitable settlement of disputes in the field of labor relations.” (Citations omitted.) Local 63, Textile Workers Union v. Cheney Bros., 141 Conn. 606, 612-13, 109 A.2d 240 (1954), cert. denied, 348 U.S. 959, 75 S. Ct. 449, 99 L. Ed. 748 (1955). We have recognized the “public policy favoring arbitration which is intended to avoid the formalities, delay, expense and vexation of ordinary litigation.” Bridgeport v. Bridgeport Police Local 1159, 183 Conn. 102, 107, 438 A.2d 1171 (1981).

As a consequence of our approval of arbitral proceedings, our courts generally have deferred to the award that the arbitrator found to be appropriate. “[Ajrbitration is the favored means of settling differences and arbitration awards are generally upheld unless an award clearly falls within the proscriptions of § 52-418 of the General Statutes.” (Internal quotation marks omitted.) State v. AFSCME, Council 4, Local 387, AFL-CIO, 252 Conn. 467, 473, 747 A.2d 480 (2000); Garrity v. McCaskey, 223 Conn. 1, 4-5, 612 A.2d 742 (1992); Board of Education v. Local 818, 5 Conn. App. 636, 639, 502 A.2d 426 (1985).

Despite the general rule counseling deference to arbitral awards, § 52-418 (a) lists circumstances under which vacatur of an award is required. One such circumstance is an award that is not “mutual, final or definite.” General Statutes § 52-418 (a) (4); Schoonmaker v. Cummings & Lockwood of Connecticut, P.C., 252 Conn. 416, 427-28, 747 A.2d 1017 (2000); Garrity v. McCaskey, supra, 223 Conn. 6. It is undisputed that the court in this case properly vacated the award.

Ill

APPEALABILITY

Before considering the merits of the board’s appeal under § 52-418 (b), we must determine whether we have jurisdiction to hear this appeal. That determination turns on whether the court’s order of remand was a final judgment. The association argues that we have no jurisdiction because of the common-law rule that an order is not a final judgment if it neither “terminates a separate and distinct proceeding” nor “so concludes the rights of the parties that further proceedings cannot affect them.” State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983). The board argues, however, that Curdo’s common-law rule is superseded in this case by General Statutes § 52-423, which establishes a statutoiy right of appeal “from an order confirming, vacating, modifying or correcting an award, or from a judgment or decree upon an award, as in ordinary civil actions.” We agree with the board.

In several cases, § 52-423 has been recognized as the authoritative source of law concerning appellate jurisdiction to consider the merits of arbitration appeals. See Success Centers, Inc. v. Huntington Learning Centers, Inc., 223 Conn. 761, 774, 613 A.2d 1320 (1992); Kolenberg v. Board of Education, 206 Conn. 113, 122-23, 536 A.2d 577 (1988). The association has offered no argument for its inapplicability here. We are persuaded that the statute rather than the common law governs the appeal-ability of a judicial decree ordering a remand for further arbitral proceedings. Accordingly, we conclude that this appeal is properly before us.

IV

THE MERITS OF THE BOARD’S APPEAL

The board’s appeal raises four principal issues. First, the board claims that, after an arbitral award has been vacated and a rehearing is necessary, § 52-418 (b) requires a trial court to remand the matter to a new arbitrator. Second, the board claims that the designation of an arbitrator on remand is governed by General Statutes § 51-183c. Third, the board maintains that even if the statute vests discretion in the trial court to direct a remand either to the original arbitrator or a new arbitrator, the court’s order in this case was an abuse of its discretion. Fourth, even if direction of the rehearing to the original arbitrator was permissible, the court abused its discretion by permitting the original arbitrator to decide whether the board should be permitted to supplement the record with new evidence. We disagree with each of the board’s claims of impropriety.

A

Applicability of General Statutes § 52-418 (b)

The statutory provision that is the centerpiece of the board’s appeal is § 52-418 (b). Implementing a decision for vacatur rendered under § 52-418 (a), § 52-418 (b) requires an arbitral rehearing to correct the defective award. Section 52-418 (b) provides in relevant part that “ [notwithstanding the time within which the award is required to be rendered, if an award issued pursuant to a grievance taken under a collective bargaining agreement is vacated the court or judge shall direct a rehearing . . . .” On its face, the statute provides no guidance on the scope of the court’s authority to “direct [the] rehearing.”

In light of this statutory lacuna, the court, after vacating the award on grounds unrelated to any claim of arbitral misfeasance, concluded that it had discretion to decide whether to remand the case to the original arbitrator or to a new arbitrator. The court designated the original arbitrator. The court also ruled that the original arbitrator was the proper person to determine whether there was a necessity for substantial new submissions or an evidentiary rehearing.

The board challenges the court’s order of remand on two grounds. It argues that the legislative history of § 52-418 (b) demonstrates that (1) the legislature did not intend to permit a remand to the original arbitrator and (2) the applicable statutes require any rehearing on remand to be de novo. We are unpersuaded.

The arguments of the parties center on the 1997 amendment of § 52-418 (b), which, for the first time, provided for remands after the vacation of arbitral awards that were not time constrained. See Public Acts 1997, No. 97-134. Prior to the 1997 amendment, General Statutes (Rev. to 1997) § 52-418 (b) provided: “If an award is vacated and the time within which the award is required to be rendered has not expired, the court or judge may direct a rehearing by the arbitrators.”

The earlier language of § 52-418 (b), in the view of our Supreme Court, did not permit any remand to an arbitrator after the expiration of the time within which the award was required to have been rendered. See Chmielewski v. Aetna Casualty & Surety Co., 218 Conn. 646, 591 A.2d 101 (1991); Aetna Life & Casualty Co. v. Bulaong, 218 Conn. 512, 588 A.2d 138 (1991). We agree with the association that the 1997 amendment was a legislative response to those holdings. The legislature chose to make a rehearing mandatory for arbitral awards pursuant to a collective bargaining agreement, irrespective of the time within which the award was required to have been rendered. In so doing, the legislature did not manifest any intent to require a court, after vacatur, to remand an award for a new hearing by a new arbitrator.

The association urges us to interpret the 1997 amendment with deference to our Supreme Court’s decision in State v. AFSCME, Council 4, Local 1565, supra, 249 Conn. 474. Concededly, that court’s comments about the scope of the amendment are dicta because the case actually was decided on the basis of § 52-418 (b) as it existed prior to 1997.

Nonetheless, in State v. AFSCME, Council 4, Local 1565, supra, 249 Conn. 474, our Supreme Court stated that, upon the vacatur of an award pursuant to General Statutes (Rev. to 1997) § 52-418 (b), the court has discretion to remand the case either to the original arbitrator or to a new arbitrator. The court observed that “[t]he plain language of the statute does not mandate a rehearing before the original arbitrator when an award is vacated and the time within which to render an award has not expired. ... A reading of the entire statute and its purpose also leads to the conclusion that, although it is within the discretion of the trial court to decide whether to submit the issues to the initial arbitrator, the court may also refer the matter to a new arbitrator.” (Citations omitted.) State v. AFSCME, Council 4, Local 1565, supra, 479. The court warned, however, that, under some circumstances, a remand to the original arbitrator would not be prudent because the injured party would be at risk of not obtaining meaningful relief. “Corruption, partiality or bias on the part of the original arbitrator would, by any common sense reading of the statute, require a hearing before a new arbitrator.” Id.; see also I. MacNeil & R. Speidel, Federal Arbitration Law (1999) § 42.2.3, p. 42.9. Nothing has been alleged in this case that would trigger those cautionary precepts.

The board, nevertheless, would have us limit our Supreme Court’s construction of the amendment in State v. AFSCME, Council 4, Local 1565, supra, 249 Conn. 474, by making a distinction between the first and the second sentences of § 52-418 (b). Although the language of the first sentence is permissive and therefore supports a court’s exercise of discretion, as the Supreme Court held, the language of the second sentence, according to the board, is directory and mandates a de novo hearing before a new arbitrator. The board cites no authority for this strained construction. The analysis in State v. AFSCME, Council 4, Local 1565, supra, 474, looks the other way. The text of the statute does not require such a remand in the absence of misfeasance by the arbitrator. Under the circumstances of this case, we are unprepared to assume that the legislature silently intended to preclude a court from exercising its discretion to order a remand to the original arbitrator. A contrary assumption would be inconsistent with the rule of statutory construction that presumes that “the legislature intends to accomplish a reasonable and rational result rather than a difficult and possibly bizarre one.” (Internal quotation marks omitted.) State v. Burns, 236 Conn. 18, 27, 670 A.2d 851 (1996).

The purpose and design of the arbitration process supports our conclusion that the language in § 52-418 (b) pertaining to the vacatur of arbitration awards pursuant to collective bargaining agreements does not mandate a rehearing before a new arbitrator. Vesting discretion in the trial court is consistent with the principle that arbitration is “intended to avoid the formalities, delay, expense and vexation of ordinary litigation.” Bridgeport v. Bridgeport Police Local 1159, supra, 183 Conn. 107. Moreover, “[r]emanding [a grievance] to the arbitrators who originally heard the dispute promotes the speedy resolution of disputes which the arbitration process seeks to encourage.” Metropolitan Airports Commission v. Metropolitan Airports Police Federation, 443 N.W.2d 519, 525 (Minn. 1989).

For all the reasons discussed, we are unpersuaded that § 52-418 (b) as amended, in the absence of evidence of corruption, partiality or bias on the part of the arbitrator, requires a rehearing before anew arbitrator. Neither the language of the statute nor its legislative history furnishes persuasive evidence to the contrary. The exercise of discretion by the court is consistent with the policy that arbitration orders should seek to avoid undue delay and undue expenses in the arbitral process. We concur in our Supreme Court’s observation in State v. AFSCME, Council 4, Local 1565, supra, 249 Conn. 482, that “[t]here may be circumstances in which the trial court might recognize the potential for a conflict if the reheating were to take place before the original arbitrator, even in cases in which no additional evidence may be required. The exercise of sound discretion by the trial court gives the party seeking to vacate the award meaningful and complete relief. Our resolution of this issue leaves the trial court with the power to effect fully the purposes of § 52-418.”

B

Applicability of General Statutes § 51-183c to the Remand of Arbitration Awards

The board contends that this court should apply the policy embodied in § 51-183c to arbitration proceedings. Section 51-183c prohibits a judge who tries or presides over a case in which a new trial is granted from retrying the case or presiding over the retrial. Our Supreme Court was confronted with exactly this argument in State v. AFSCME, Council 4, Local 1565, supra, 249 Conn. 480. In dismissing the argument, the court stated, and we agree, that “§ 51-183c, by its plain terms, applies only to judges. No similar provision has been enacted to apply to arbitrators.” Id. Furthermore, we have narrowly construed § 51-183c “to apply solely to trials and not to all types of adversarial proceedings.” Lafayette Bank & Trust Co. v. Szentkuti, 27 Conn. App. 15, 21, 603 A.2d 1215, cert. denied, 222 Conn. 901, 606 A.2d 1327 (1992). Section 51-183c does not apply to pretrial or short calendar proceedings. Id. Accordingly, we are unwilling to extend unilaterally the legislative policy of § 51-183c to the arbitration process.

C

The Propriety of the Court’s Discretionary Rulings

The board contends that even if a trial court ordinarily has discretion to remand a defective award for further consideration before the original arbitrator or a new arbitrator, under the circumstances of this case, the court’s choice of the original arbitrator was an abuse of its discretion. “Our review of the trial court’s exercise of its discretion is limited to questions of whether the court correctly applied the law and could reasonably have concluded as it did. . . . Every reasonable presumption will be given in favor of the trial court’s ruling. ... It is only when an abuse of discretion is manifest or where an injustice appears to have been done that a reversal will result from the trial court’s exercise of discretion.” (Internal quotation marks omitted.) State v. Relliford, 63 Conn. App. 442, 447-48, 775 A.2d 351 (2001); State v. Lucci, 25 Conn. App. 334, 341-42, 595 A.2d 361, cert. denied, 220 Conn. 913, 597 A.2d 336 (1991). Absent a showing of corruption, impartiality or bias on the part of the arbitrator, “remanding to the original panel is an appropriate decision, does not constitute an abuse of discretion, and will save the time and expense of submitting the matter to a new panel.” Buffalo Police Benevolent Assn. v. Buffalo, 82 App. Div. 2d 635, 640, 443 N.Y.S.2d 107 (1981). We disagree with the board’s claim that the court’s order would unjustly operate to the prejudice of the board. We conclude, therefore, that the court did not abuse its discretion in ordering a remand hearing to be held before the original arbitrator.

D

Evidentiary Scope of the Remand

Having concluded that the trial court has discretion to remand the matter to either the original or a new arbitrator, we must now determine whether the court improperly left to the arbitrator’s discretion the determination of whether to hear new evidence during the rehearing. In this respect, the court stated: “[I]t may be that this arbitrator . . . decides that there is a necessity for substantial new submissions or rehearing. That’s up to her.” The board asserts that when a court remands a matter pursuant to § 52-418 (b), the arbitrator must conduct a de novo hearing. We disagree.

The board’s argument finds no support either in the language of § 52-418 (b) or in generally accepted principles governing consensual arbitrations. A reading of the text of the statute discloses no language requiring a de novo hearing on remand. Under the law governing arbitration, “arbitrators are accorded substantial discretion in determining the admissibility of evidence, particularly in the case of an unrestricted submission, which relieve [s] the arbitrators of the obligation to follow strict mies of law and evidence in reaching their decision. . . . Indeed, it is within the broad discretion of arbitrators to decide whether additional evidence is required or would merely prolong the proceedings unnecessarily.” (Citations omitted; internal quotation marks omitted.) O & G/O’Connell Joint Venture v. Chase Family Ltd. Partnership No. 3, 203 Conn. 133, 148-49, 523 A.2d 1271 (1987).

We are persuaded that, in this case, the court had discretion to invoke the arbitrator’s broad discretion to determine whether additional evidence is required. That arbitral discretion is as applicable to proceedings on remand as it is to the original round of arbitral proceedings. See, e.g., Mid-American Elevator Co. v. Gemco Elevator Co., 189 Ga. App. 143, 145, 375 S.E.2d 275 (1988); Teamsters Union Local No. 115 v. DeSoto, Inc., 725 F.2d 931, 941 (3d Cir. 1984). Upon remand, the arbitrator may receive “evidence, if any, [a]s the arbitrator may deem appropriate in the circumstances, and the making of such [a]ward as he deems proper.” Harvey Aluminum v. United Steelworkers of America, 263 F. Sup. 488, 495 (D. Cal. 1967).

A review of the legislative history of the 1997 amendment to § 52-418 supports this conclusion. In the only relevant statement of record, Representative Christopher G. Donovan responded to a question regarding an arbitrator’s authority to receive new evidence on remand by stating that “it will be a new arbitration so as with any hearing, evidence can be brought forward to the arbitrator . . . .” 40 H.R. Proc., Pt. 11, 1997 Sess., p. 4137.

Accordingly, we conclude that the court did not abuse its discretion in refusing to impose evidentiary constraints on the arbitral rehearing. Arbitration is “intended to avoid the formalities, delay, expense and vexation of ordinary litigation.” Bridgeport v. Bridgeport Police Local 1159, supra, 183 Conn. 107. Requiring a de novo hearing on every remand, including the one in the present case, would increase the delay and expense of the arbitration process by allowing the parties to present evidence concerning issues already fully argued before the arbitrator. This we are unwilling to do.

We conclude, therefore, that the court’s order of remand was proper in every respect. In the absence of misfeasance in the issuance of the original arbitrator’s award, it was entirely appropriate to authorize the arbitrator to decide whether the parties may submit additional evidence during the rehearing.

V

CONCLUSION

Under the circumstances of the present case, the court’s order of remand must be affirmed. Because the original arbitrator has not been alleged to have acted corruptly or with partiality or bias, the court had the right to exercise its discretion to direct the remand to the original arbitrator. Because the remand is likely to require no more than an amendment to render a mutual, final and definite award, the court had the right to refer evidentiary rulings at the rehearing to the discretion of the original arbitrator.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 52418 (b) provides in relevant part: “Notwithstanding the time within which the award is required to be rendered, if an award issued pursuant to a grievance taken under a collective bargaining agreement is vacated the court or judge shall direct a rehearing unless either party affirmatively pleads and the court or judge determines that there is no issue in dispute.”

       Under the circumstances, a motion to correct would have been inappropriate. See General Statutes § 52419.

       For «Elective bargaining purposes, the association represents public school teachers in the town of East Haven.

       The collective bargaining agreement was binding on the parties from September 1, 1997, to August 31, 2000.

       The arbitrator found that the “block schedule” divided the school day info four blocks and required each teacher to instruct students “three of the four blocks on half days of the semester and two of four on the other days.” Prior to the implementation of the block schedule and the practice contemplated by the collective bargaining agreement, the teaching day was divided into seven periods. Each teacher was required to teach five periods, was allocated one period for classroom preparation and was required to work one “duty” period.

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

       The arbitrator’s award stated: “The block schedule as it was implemented in 1998-1999 and 1999-2000 did violate ... the collective bargaining agreement.”

       The following issue was submitted to the arbitrator: “Did the East Haven Board of Education violate the 1997-2000 collective bargaining agreement by requiring teachers in the high school to teach in a block schedule during the 1998-1999 school year? If so, what shall be the remedy?”

       The arbitrator’s award stated: “The parties will negotiate a remedy based on the discussion below. I retain jurisdiction for 90 days to resolve any dispute with regard to the remedy.”

       See footnote 6.

       General Statutes § 52-423 provides: “An appeal may be taken from an order confirming, vacating, modifying or correcting an award, or from a judgment or decree upon an award, as in ordinary civil actions.”

       General Statutes § 51-183c provides: “No judge of any court who tried a ease wit hout a jury in which a new trial is granted, or in which the judgment is reversed by the Supreme Court, may again try the case. No judge of any court who presided over any jury trial, either in a civil or criminal case, in which a new trial is granted, may again preside at the trial of the case.”

       See footnote 1.

       Public Acts 1997, No. 97-134, provides in relevant part: “Notwithstanding the time within which the award is required to be rendered, if an award issued pursuant to a grievance taken under a collective bargaining agreement is vacated the court or judge shall direct a rehearing . . . .”

       Representative Christopher G. Donovan stated: “[I]f the arbitrator has not rendered his or her decision within the scheduled time line, the judge does not have the ability to order a rehearing. [The amendment] would require the judge to order a rehearing. Right now the judge may not order a rehearing if the time-line — which the arbitrator may have violated him or herself — to order a rehearing [has expired].” 40 H.R. Proc., Pt. 11, 1997 Sess., p. 4143. Likewise, on the Senate floor, Senator Edith G. Prague stated: “[The amendment] requires, instead of merely allowing a judge or a court to order a grievance brought under a collective bargaining agreement, to be reheard, whenever an arbitration award resolving the grievance is vacated . . . .” 40 S. Proc., Pt. 7, 1997 Sess., p. 2304. Testimony in front of the Joint Standing Committee on Labor and Public Employees included: “We recommend that [§ 52-418 (b)] be amended to require that even if the case involves a vacation of an award because the arbitration award was rendered late, it should be remanded back. . . . [T]he grievant should not lose his or her day before an arbitrator merely because an arbitrator was late in rendering an award.” Conn. Joint Standing Committee Hearings, Labor and Public Employees, Pt. 3, 1997 Sess., p. 690, testimony of Peter Thor of the American Federation of State, County and Municipal Employees.
      The board argues that a portion of Representative Donovan’s statement supports its contrary reading of the 1997 amendment so as to require a new arbitration before a new arbitrator. Representative Donovan stated that “it will be a new arbitration so as with any hearing, evidence can be brought forward to the arbitrator, the new arbitrator in this case.” 40 H.R. Proc., supra, p. 4137. As the board concedes, Representative Donovan made this statement in response to a question about the discretion of an arbitrator, after remand, to hear new evidence during the rehearing. Elsewhere, Representative Donovan referred to the amendment as a “cleaning up of the technical language.” Id., p. 4135. It would be surprising to equate “technical language” with a statutory revision of those authorized to conduct an arbitral rehearing.
      Finally, the proceedings in the Senate, where the bill originated, do not support the inference that the legislature intended to change the law so as to require a remand to a new arbitrator. The sparse legislative history of the amendment, which apparently was never fully discussed in the Senate, makes it unlikely that the legislature intended to enact a change of substance, rather than a change that was technical. Moreover, Senator Prague described the amendment as merely clarifying “some technical issues . . . that need to be addressed”; 40 S. Proc., supra, p. 2305; and as a “very technical land of Amendment that just clarifies the appeals process when a grievance has been vacated by a judge.” Id., p. 2306.

       General Statutes (Rev. to 1997) § 52-418 (b) provides: “If an award is vacated and the time within which the award is required to be rendered has not expired, the court or judge may direct a rehearing by the arbitrators.”

       See also Hyman v. Pottberg’s Executors, 101 F.2d 262, 266 (2d Cir. 1939), in which Judge Learned Hand stated that “a court may in its discretion refer back a matter to the original arbitrators after vacating their award; but obviously that would not be proper when the first award is vacated because of fraud or partiality; the arbitrators would then have shown themselves to be unfit to be judges, and it would be a clear abuse of discretion to trust them further.”

       Because the 1997 amendment was enacted prior to our Supreme Court’s interpretation of the phrase “rehearing by the arbitrators” in State v. AFSCME, Council 4, Local 1565, supra, 249 Conn. 474, the legislature could not have omitted that language from the amendment in a purposeful attempt to give a different meaning to the second sentence then that subsequently was offered by our Supreme Court.

       For similar holdings in other state courts, see Fox v. Morris County Policemen’s Assn., 266 N.J. Super. 501, 520-21, 630 A.2d 318 (App. Div. 1993), cert. denied, 137 N.J. 311, 645 A.2d 140 (1994); East Ramapo Central School District v. East Ramapo Teachers Assn., 108 App. Div. 2d 717, 484 N.Y.S.2d 882 (1985). Federal case law is to the same effect. See, e.g., Aircraft

        Braking Systems Corp. v. Local 856, International Union, United Automobile, Aerospace & Agricultural Implement Workers, UAW, 97 F.3d 155, 162 (6th Cir. 1996), cert. denied, 520 U.S. 1143, 117 S. Ct. 1311, 137 L. Ed. 2d 475 (1997); Randall v. Lodge No. 1076, International Assn. of Machinists & Aerospace Workers, AFL-CIO, 648 F.2d 462 (7th Cir. 1981); see I. MacNeil & R. Speidel, supra, § 42.2.3, p. 42.9.

       See footnote 12.

       Because of the nature of the arbitrator’s inquiry, it might even be argued that the court might not have had discretion to rule to the contrary. That issue, however, need not be decided in this case.


text:
    BARBARA PLACE ET AL. v. CITY OF WATERBURY
    (AC 20937)
    Dranginis, Flynn and Peters, Js.

      Argued May 7
    officially released October 16, 2001

      James P. Brennan, for the appellants (plaintiffs).

      Charles E. Oman III, for the appellee (defendant).
   Opinion

PETERS, J.

This civil appeal concerns the relationship between staff members of a federally funded regional agency and the city, within the agency’s service area, that administers the agency’s grant money. At issue is whether the city must make fiscal contributions to a deferred compensation plan that agency staff members chose to fund their pensions. That question, in turn, depends upon whether the staff members were city employees for pension purposes. In a careful and comprehensive memorandum of decision, the trial court found that they were not and, accordingly, rendered judgment for the city. We agree.

The plaintiffs, Barbara Place, Ivory Anders, Patty Blue-Murphy and Kathy Maness are, or were previously, staff members of the Waterbury Area Job Training Administration (agency). They brought an action against the defendant, the city of Waterbury (city), to recover damages for the city’s failure to contribute to their deferred compensation plan. Each count of their five count complaint was premised on their allegation that they were city employees.

The city denied being the plaintiffs’ employer. After an evidentiary hearing, the court made a factual finding, undergirded by many subsidiary findings, that the plaintiffs were not city employees with respect to the pension contribution claim at issue in this case. It therefore rendered judgment in favor of the city.

On appeal from that adverse judgment, the plaintiffs challenge the validity of the court’s fact-finding with respect to their relationship to the city. Their appeal can succeed only if the court’s finding was clearly erroneous. “A finding is clearly erroneous when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. In applying the clearly erroneous standard to the findings of a trial court, we keep constantly in mind that our function is not to decide factual issues de novo. Our authority, when reviewing the findings of a judge, is circumscribed by the deference we must give to decisions of the trier of fact, who is usually in a superior position to appraise and weigh the evidence.” (Internal quotation marks omitted.) Doyle v. Kulesza, 197 Conn. 101, 105, 495 A.2d 1074 (1985); see also Practice Book § 60-5; Morgan Buildings & Spas, Inc. v. Dean’s Stoves & Spas, Inc., 58 Conn. App. 560, 564, 753 A.2d 957 (2000); Nelson v. Nelson, 13 Conn. App. 355, 359, 536 A.2d 985 (1988).

The court based its finding that the plaintiffs were not city employees on a number of subsidiary factual determinations. These subsidiary findings fall into three categories: (1) the origin and status of the agency; (2) the circumstances under which the plaintiffs elected to fund their pensions through a deferred compensation plan; and (3) the circumstances surrounding the discontinuance of employer contributions to the plaintiffs’ deferred compensation plan.

The court made numerous findings with respect to the origin and the nature of the agency at which the plaintiffs performed their duties. Pursuant to 29 U.S.C. §§ 1512 and 1513, the agency was funded by federal grants to carry out its mission of assisting access to employment. The agency was directed to provide such services not only for the city, but also for the neighboring towns of Naugatuck, Prospect, Cheshire, Beacon Falls, Thomaston, Middlebury, Southbury, Woodbury, Oxford, Watertown and Wolcott. The agency was, therefore, not a city agency, but a separate regional entity. Although the city issued payroll checks and kept employment records for the plaintiffs, those services arose out of the fact that the regional council had designated the city, as a member of the regional agency, to act as administrator of the agency’s assets. See 29 U.S.C. § 1513 (b) (1) (B).

The court, also made findings about the circumstances under which the plaintiffs opted for enrollment in a deferred compensation plan. Prior to 1984, the plaintiffs had been enrolled in the city’s municipal retirement plan. In June, 1984, the executive director of the agency advised all staff members, including the plaintiffs, that they could pursue one of three options as a retirement plan. They could remain in the city pension plan, obtain coverage under social security or join a deferred compensation plan offered by the Aetna Life Insurance and Annuity Company (Aetna). The executive director told the staff that, if the plaintiffs elected the deferred compensation plan, that plan would be funded by their individual contributions and by contributions from “the employer.” The director’s statement did not indicate whether it was the city or some other entity that would make the contemplated employer contributions. On the ballots used by the plaintiffs to select their preferred retirement plan, the plaintiffs were described as agency employees. No part of the Aetna documentation described the city as the employer. No evidence was presented that the city had played any consultative role in the plaintiffs’ retirement planning.

Once the Aetna plan was put into place, the city’s role was confined to that of an administrator. The city prepared the checks to be drawn from the agency budget in reliance on calculations derived from agency vouchers. The agency itself periodically informed Aetna of employer contributions to the deferred compensation plan and, in so doing, referred to the agency as the payor. The agency’s director was the person who informed the plaintiffs of the balances in their individual Aetna accounts. These reports uniformly described the agency, rather than the city, as the plaintiffs’ employer.

In January, 1988, employer contributions to the plaintiffs’ Aetna plan were formally discontinued. The court found that the plaintiffs were informed about this unfortunate development by an agency memorandum issued by a successor agency director. The memorandum stated that “agency matching funds” were no longer available because “we” were encountering budgetary constraints. There was no allusion to the city as the party responsible for the discontinuance. The plaintiffs contacted neither the city’s personnel and benefits office, nor any other city employee, to inquire why matching funds no longer were being paid. In July, 1991, each of the plaintiffs left the Aetna plan and enrolled instead in the social security retirement plan.

Read in their entirety, these subsidiary findings of fact provide a sound foundation for the court’s finding that the plaintiffs were not city employees for pension purposes. The plaintiffs do not attack these findings directly. They do not challenge the credibility of any witness and cannot avoid the probative force of documentary evidence to which they raised no objection at trial. What the plaintiffs do claim is that the court’s findings are significantly undermined by the court’s failure to take into account a number of other facts that support their complaint.

Our analysis of the plaintiffs’ claims is constrained by the procedural posture in which this appeal comes to us. Because the issues before us arise directly from the allegations contained in the plaintiffs’ complaint, it is the plaintiffs upon whom the burden of proof rested. The city’s denial of the allegation that the plaintiffs were city employees does not shift that burden to the city. If the court’s finding was in any respect incomplete, the plaintiffs had the opportunity to fill the gaps by filing a motion for articulation or for a rehearing. Practice Book § 66-5. The plaintiffs did not pursue either alternative.

Before we address the merits of the plaintiffs’ claims of error by omission, we must place them in context. The plaintiffs did not ask the trial court to determine whether they were city employees for any and all purposes. As the case was tried, the plaintiffs charged the city with only one dereliction, its failure to make contributions to their self-selected pension plan. The issue before us devolves, therefore, into the question of whether the plaintiffs were city employees with respect to their pension plan. We agree with the court’s resolution of this issue.

The plaintiffs’ alleged errors of omission focus on four claims. They claim that they were city employees between 1984 and 1991 because (1) no other entity has been identified as their employer, (2) the city provided them with health insurance and life insurance, (3) the city was listed as their employer on their W-2 forms and (4) federal funding was not inconsistent with city employment.

The plaintiffs’ first claim is that they were city employees because no one else was found to be their employer. It is difficult to square this argument with the procedural reality that the plaintiffs had the burden of proving their status. Even if we were to accept the logic of the plaintiffs’ argument, arguendo, this claim would not be sustainable because it misreads the record. The court expressly found that, under federal law, the plaintiffs were employees of the agency, which, in turn, was a separate regional entity accountable to the regional council that oversaw their performance. No other finding was required on this issue.

The plaintiffs’ second claim is that they were city employees because the city provided them with health insurance and life insurance. To prevail on this argument, the plaintiffs had to show a linkage between health and life insurance benefits on the one hand and pension benefits on the other. The plaintiffs testified that they believed that there was such a linkage. No one questions the sincerity of their belief. Nonetheless, the court properly could find that the plaintiffs’ belief did not outweigh the probative force of the documentary record.

In its evaluation of the record as a whole, the court noted that, pursuant to General Statutes § 7-425 (5), the city had no legal obligation to provide pension plans for regional workforce development agencies that were funded federally. The city manifested its intention to exclude agency employees from the city pension plan by a letter to the agency executive director, which stated the city’s position that agency employees were not city employees. At trial, the executive director did not deny that he had received the letter and acknowledged that, in ordinary course, the contents of the letter would have been made known to all agency employees. This record demonstrates the absence of the linkage on which the plaintiffs rely.

The plaintiffs’ third claim is that the city must be deemed to be the plaintiffs’ employer because the city was so designated in the W-2 forms that they received annually. The plaintiffs emphasize that federal law requires an employer to issue W-2 forms to its employees. According to the plaintiffs, had the city deliberately misstated its relationship to the plaintiffs, the city would have violated federal law. This claim ignores the court’s finding that “[t]he fact that the city issued payroll checks and kept employment records is consistent with the city having been designated as a member of the regional agency that would administer the assets of [the agency] pursuant to 29 U.S.C. § 1513 (b) (1) (B).” That finding is equally applicable to W-2 forms.

The plaintiffs’ final claim is that the court’s finding was inconsistent with the testimony of the city’s pension and benefits administrator. The administrator testified that the plaintiffs receive health insurance because they came within the group that the city calls “the city of Waterbury all employees.” She further testified that city employees retained that status even though they were funded “through federal grants.” Curiously, she was never asked whether the city’s responsibility for employee benefits included pension benefits for employees funded through federal grants. Her testimony, therefore, did not discredit the letter sent by the city’s counsel, at a time preceding her own city employment, that expressly notified the agency that the city would not provide such pension benefits. In light of the city’s unchallenged authority to unbundle its benefits package, the plaintiffs’ reliance on this testimony is misplaced.

In sum, we disagree with the plaintiffs’ claim that the force of the court’s finding about their employee status was diminished by the evidence presented on their own behalf. Although we sympathize with the plaintiffs’ plight, we are bound by the evidentiary record. That record provides ample support for the court’s finding that the plaintiffs were not city employees with respect to the funding of their pension plan. The plaintiffs have not demonstrated that the court’s finding was clearly erroneous.

The judgment is affirmed.

In this opinion the other judges concurred.

       There is no basis in the record for the plaintiffs’ assertion in their appellate brief that they had a cause of action against the city for breach of duty even if they were not city employees. Their complaint is to the contrary. Each count in the complaint specifies or incorporates by reference the allegation that the plaintiffs were city employees. The court construed the plaintiffs’ complaint accordingly. Even their own appellate reply brief states that “the plaintiffs claim . . . that their status as employees of the city is essential . . . .”

       In five counts, the plaintiffs’ complaint alleged that, from 1987 to 1991, the city (1) owed them an accounting and payments of all sums the city allegedly had failed to make to the deferred compensation plan, (2) had acted in breach of its fiduciary duty, (3) had acted in breach of contract, (4) had been unjustly enriched at the expense of the plaintiffs, and (5) had acted in violation of the duty of good faith and fair dealing. The plaintiffs do not challenge the trial court’s decision on count one.

       In addition, the defendants filed five special defenses, including a claim of waiver and a claim that the plaintiffs’ complaint was time barred. The court agreed that one of the counts of the complaint was indeed time barred. On appeal, this ruling has not been challenged.

       In the plaintiffs’ brief on appeal, they discussed nothing other than their claim that the court improperly had found that they were not city employees. After the city pointed out, in its appellate brief, that any other issues should be deemed abandoned, the plaintiffs attempted to resurrect other issues in their reply brief. This attempt is procedurally improper and substantively unavailing. Procedurally, it is improper to raise issues in a reply brief that were not raised in the principal brief. Ramos v. Vernon, 254 Conn. 799, 843-44, 761 A.2d 705 (2000); State v. Garvin, 242 Conn. 296, 312, 699 A.2d 921 (1997). Substantively, the underlying factual predicate for each of the additional claims was that the plaintiffs were city employees. Our conclusion to the contrary obviates the need for further elaboration.

       Although the plaintiffs had alleged, in the fourth count of their complaint grounded on a claim of unjust enrichment, that they had performed services for the city, the court made no such finding. On appeal, the plaintiffs concede that any such claim is sustainable only if they were in fact employees of the city.

       These ballots expressly described each plaintiff “AS A WAJTA ADMINISTRATION EMPLOYEE . . . .”

         It is not disputed that the city reimbursed the plaintiffs for the respective amounts that had accrued while they were members of the city pension plan.

       The plaintiffs’ claims for relief, therefore, relate only to the period from August, 1987, to July, 1991.

       The plaintiffs also note the fact that they are currently enrolled in social security as employees of the city. That may well be true, but it is irrelevant. This case concerns events that predate the plaintiffs’ participation in social security.

       General Statutes § 7-425 (5) provides in relevant part: “ ‘Member’ means any regular employee or elective officer receiving pay from a participating municipality . . . but shall not include . . . any person holding a position funded in whole or in part by the federal government as part of any public service employment program, on-the-job training program or work experience program, provided persons holding such federally funded positions on July 1,1978, shall not be excluded from membership but may elect to receive a refund of their accumulated contributions without interest . . .

       This letter was sent during the time when the plaintiffs were reviewing their retirement plan options. The letter was premised on city counsel’s understanding that the plaintiffs, who had previously participated in the city pension plan, had expressed no interest in remaining in that plan. Presumably, these staff members would have been grandfathered in had they chosen to remain in the city pension plan. See General Statutes § 7-425 (5). It is unclear why the executive director informed all staff members that participation in the city’s pension plan was one of the retirement plan options. For present purposes, we need not resolve this ambiguity.

       The city’s board of aldermen subsequently voted to exclude from the city’s pension plan any person whose salary was funded by federal grants.


author: LAVERY, C. J.

text:
    ALBERT DEVITO v. EDWARD SCHWARTZ ET AL.
    (AC 20997)
    Lavery, C. J., and Spear and Dranginis, Js.

      Submitted on briefs April 6
    officially released October 16, 2001

      Louis Ciccarello filed a brief for the appellant (defendant).
   Opinion

LAVERY, C. J.

In this defamation action, the counterclaim plaintiff, Edward Schwartz, appeals from the judgment rendered by the trial court after the court denied his motion to set aside the verdict. On appeal, Schwartz claims that the court improperly denied his motion because the defamatory statements made by the counterclaim defendant, Albert DeVito, were slanderous per se, and, therefore, he was entitled to at least some damages. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. In November, 1996, DeVito initiated an action against Schwartz, Francis Dattalo and the 709 Sports Club for assault and battery. The complaint alleged that an altercation took place between DeVito, Schwartz and Dattalo in August, 1996, at the 709 Sports Club at 34 Martin Luther King Boulevard in Norwalk. In February, 1997, Schwartz filed an answer, special defenses and a counterclaim. The third count of the counterclaim, which is the only count relevant to this appeal, alleged that DeVito, in front of others, called Schwartz a “crook” and accused him of stealing money from the 709 Sports Club. Schwartz further claimed that those statements were false and were made wilfully, wantonly and maliciously, and that, as a result of the slander, he suffered embarrassment, humiliation and injury to his reputation. Schwartz sought compensatory and punitive damages for his injuries. The court rendered a judgment of nonsuit in the assault and battery action in favor of Schwartz on July 12, 1998. A jury trial on the counterclaim began in June, 2000, during which the court granted Schwartz’s motion to amend the counterclaim to add the word “thief.”

Following the parties’ closing arguments, the court charged the jury on slander per se and damages as follows: “Slander per se. An example of a slander per se is charging the commission of a crime involving moral turpitude. Moral turpitude in turn involves an act of inherent baseness, vileness or depravity in the private and social duties which man does to his fellow man or to society in general, contrary to the accepted rule of right and duty between a person and the law. An oral statement that one has stolen something has been held by our courts to be actionable per se. In other words, accusing someone of theft is slanderous per se. When words are slanderous per se, as I said, a claimant is not required to show special, actual or pecuniary damages. The law conclusively presumes the existence of injury to the claimant’s reputation. He is not required to plead or to prove it.”

In addition to the jury instructions, the court presented the jury with interrogatories. Regarding the third count of the counterclaim, question five of the interrogatories asked the jury: “Did the claimant prove, by a fair preponderance of the evidence, that the counterclaim defendant, Mr. DeVito, ‘slandered’ him?” The jury responded, “yes.” Question six of the interrogatories asked: “Did the claimant prove, by a fair preponderance of the evidence, that the slanderous statements were published by Mr. DeVito, that is, did the slander come to the ears of one or more persons who understood the defamatory material?” The jury responded, “yes.” Question seven of the interrogatories asked: “Did the counterclaim plaintiff, Edward Schwartz, prove, by a fair preponderance of the evidence, that the counterclaim defendant, Mr. DeVito, acted wilfully, wantonly or maliciously in disregard of the rights of Mr. Schwartz?” The jury responded, “yes.” Question eight of the interrogatories asked: “Did the claimant prove, by a fair preponderance of the evidence, that this wilful, wanton and malicious misconduct on the part of the counterclaim defendant was a proximate cause of, that is, a substantial factor in causing, the injuries or damage alleged by Mr. Schwartz in his counterclaim?” The jury responded, “no.”

Question nine of the interrogatories instructed the jury as follows: “If you answered ‘YES’ in response to any one or more of Questions 2, 4, or 6, please indicate below the sum of money that the counterclaim plaintiff, Mr. Schwartz, has proved to be his fair, just and reasonable compensatory damages caused by and resulting from Mr. DeVito’s conduct and actions, AND then go on also to answer QUESTION 10. If, HOWEVER, you answered NO to all of such questions, 2, 4 and 6, go no further and render a verdict in favor of the counterclaim defendant, Mr. DeVito.” The jury responded: “$0.” Finally, question ten of the interrogatories asked, “If you answered Question 8 regarding wilful, wanton or malicious misconduct, ‘YES,’ are you awarding Mr. Schwartz a sum of money by way of PUNITIVE DAMAGES, that is, the legal cost to him, the counterclaim plaintiff, of this litigation, which is based on Attorney [Louis] Ciccarello[’s] legal fee of $19,202?” The jury responded, “No.”

The jury returned two verdict forms on the counterclaim, one in favor of DeVito and one in favor of Schwartz. The completed verdict form in favor of DeVito indicates that the jury found all issues for DeVito as against Schwartz. The completed jury form in favor of Schwartz indicates that the jury found the issues in favor of Schwartz as against DeVito, and further determined that Schwartz should recover from DeVito zero compensatory damages and no punitive damages. Therefore, despite answering affirmatively to the question that asked whether Schwartz proved by a fair preponderance of the evidence that DeVito slandered him, and that DeVito acted wilfully, wantonly and in disregard of Schwartz’s rights, the jury awarded zero damages. Additionally, despite responding in the affirmative to the question as to whether Schwartz proved that the slanderous statements were published by DeVito, the jury did not award any damages. After the court denied Schwartz’s motion to set aside the verdict, Schwartz filed the present appeal.

Before reaching the merits of Schwartz’s argument, we briefly address the standard by which we review his claim. It is well established that “[o]ur review of a trial court’s refusal to direct a verdict or to render judgment notwithstanding the verdict takes place within carefully defined parameters. We must consider the evidence, including reasonable inferences which may be drawn therefrom, in the light most favorable to the parties who were successful at trial; Bleich v. Ortiz, 196 Conn. 498, 501, 493 A.2d 236 (1985); giving particular weight to the concurrence of the judgments of the judge and the jury, who saw the witnesses and heard the testimony .... The verdict will be set aside and judgment directed only if we find that the jury could not reasonably and legally have reached their conclusion.” (Citation omitted; internal quotation marks omitted.) Ham v. Greene, 248 Conn. 508, 519, 729 A.2d 740, cert. denied, 528 U.S. 929, 120 S. Ct. 326, 145 L. Ed. 2d 254 (1999).

The court in this case denied the motion to set aside the verdict despite Schwartz’s assertion that under Connecticut law, he was entitled to recover general damages without proof of special damages. On appeal, Schwartz claims that the court improperly denied his motion to set aside the verdict because he was entitled to recover compensation for injury to reputation and mental suffering without proof of special damages.

In Connecticut, the trier of fact in a personal injury action must break down an award of damages into two categories: Economic damages and noneconomic damages. “Economic damages are defined as compensation determined by the trier of fact for pecuniary losses .... Noneconomic damages are defined as compensation determined by the trier of fact for all nonpecuniary losses including, but not limited to, physical pain and suffering and mental and emotional suffering. . . . [E]eonomic damages are akin to special damages, and noneconomic damages are akin to general damages.” (Citations omitted; internal quotation marks omitted.) Daigle v. Metropolitan Property & Casualty Ins. Co., 60 Conn. App. 465, 467 n.l, 760 A.2d 117 (2000), affd, 257 Conn. 359, 777 A.2d 681 (2001).

Defamation is comprised of the torts of libel and slander. Defamation is “that which tends to injure ‘reputation’ in the popular sense; to diminish the esteem, respect, goodwill or confidence in which the plaintiff is held, or to excite adverse, derogatory, or unpleasant feelings or opinions against him.” W. Prosser & W. Keeton, Torts (5th Ed. 1984), p. 773. Slander is oral defamation. This court has delineated specific categories of speech deemed actionable per se where “the defamatoiy meaning of [the speech] is apparent on the face of the statement . . . .” Battista v. United Illuminating Co., 10 Conn. App. 486, 491-92, 523 A.2d 1356, cert. denied, 204 Conn. 802, 803, 525 A.2d 1352 (1987). It is a well established principle that an accusation of theft is slander per se. See Ventresca v. Kissner, 105 Conn. 533, 537, 136 A. 90 (1927).

“When the defamatory words are actionable per se, the law conclusively presumes the existence of injury to the plaintiffs reputation. He is required neither to plead nor to prove it. . . . The individual plaintiff is entitled to recover, as general damages, for the injury to his reputation and for the humiliation and mental suffering which the [defamation] caused him.” (Internal quotation marks omitted.) Lyons v. Nichols, 63 Conn. App. 761, 768, 778 A.2d 246, cert. denied, 258 Conn. 906, 782 A.2d 1244 (2001). To recover special damages, however, the plaintiff must prove that he suffered economic loss that was legally caused by the defendant’s defamatory statements, even where the defamation is per se. See 3 Restatement (Second), Torts § 622 (1977). General and special damages together comprise compensatory damages. See 4 Restatement (Second), Torts § 904 (1979).

“Both nominal and punitive damages also may be awarded where the defamatory material is [defamation] per se. Where the court has found that the plaintiff has suffered a technical legal injury, the plaintiff is entitled to at least nominal damages.” (Emphasis added.) Lyons v. Nichols, supra, 63 Conn App. 768. “The award of nominal damages is appropriate when there is a clear invasion of a legal right . . . but no finding of a compensable injury.” Id., 769. “Nominal damages are awarded when the insignificant character of the defamatory matter, or the plaintiffs bad character, leads the jury to believe that no substantial harm has been done to his reputation, and there is no proof that serious harm has resulted from the defendant’s attack upon the plaintiffs character and reputation.” 3 Restatement (Second), Torts § 620, comment (a) (1977); see, e.g., Walkon Carpet Corp. v. Klapprodt, 89 S.D. 172, 178, 231 N.W.2d 370 (1975) (upholding award of $1 after finding that defendant told others plaintiff was crook, had stolen carpet, belonged in penitentiary, drank to excess, was sexually promiscuous, but also finding that poor reputation of plaintiff not materially damaged by those statements). “[Nominal damages] are also awarded when they are the only damages claimed, and the action is brought for the purpose of vindicating the plaintiffs character by a verdict of a jury that establishes the falsity of the defamatory matter.” 3 Restatement (Second), supra, § 620, comment (a).

Punitive damages, which in Connecticut are limited to attorney’s fees less taxable costs; see Berry v. Loiseau, 223 Conn. 786, 825-27, 614 A.2d 414 (1992); “may be awarded whether the defamation is actionable per se or per quod.” 50 Am. Jur. 2d, libel and Slander § 379 (1995). Such damages, however, “are not awarded as a matter of right, but rather as a matter of discretion, to be determined by the jury upon a consideration of all the evidence . . . .” Id., § 383.

In sum, pursuant to the principles previously outlined, if the defamatory material is defamation per se, the jury may award the plaintiff general damages without any further proof thereof, special damages if proven and punitive damages as a matter of discretion. Where defamation per se has been established, a plaintiff should receive at least nominal damages though not necessarily anything more. See Kraisinger v. Liggett, 3 Kan. App. 2d 235, 237, 592 P.2d 477 (“[w]hen libel or slander per se is involved, a right to damages exists as a matter of law, even though the damages may be only nominal”), review denied, 226 Kan. 792 (1979). Generally, “[t]he determination of the amount of damages to be awarded in a defamation case is peculiarly within the province of the jury, to be made in accordance with the weight of the evidence . . . and must be left undisturbed unless there is a clear showing of error, prejudice, perversity, or corruption.” 50 Am. Jur. 2d, supra, § 399. Awards of general damages in defamation actions are rarely disturbed for inadequacy. Id., § 400.

DeVito’s charge of theft in the present case falls squarely within the category of defamation per se because his statements were likely to injure the reputation of Schwartz merely as a member of the 709 Sports Club. As such, Schwartz was not required to prove actual damages, but instead was entitled to a presumption as to injury to his reputation. The jury, however, after concluding that DeVito made the slanderous statements, apparently also concluded that the resultant noneconomic damage to the plaintiff was negligible. Therefore, it awarded no general damages. Because Schwartz did not prove special damages, the jury properly did not award such damages. Finally, the jury, although possessing the discretion to award punitive damages after finding DeVito’s conduct wilful, malicious and wanton, declined to do so.

Although the jury should have awarded Schwartz at least nominal damages, it set his damages at zero. Nonetheless, “as a general rule [an appellate court] will not reverse and grant a new trial for a mere failure to award nominal damages.” Riccio v. Abate, 176 Conn. 415, 419, 407 A.2d 1005 (1979); see also Kraisinger v. Liggett, supra, 3 Kan. App. 2d 238. “While nominal damages are awarded without proof of actual injury, they imply the smallest appreciable quantity . . . with one dollar being the amount frequently awarded. The law, however, does not concern itself with trifles (de minimis non curat lex), and a judgment for plaintiff will not be reversed on appeal for a failure to award nominal damages, even though plaintiff is entitled to recover nominal damages as a matter of law.” Kraisinger v. Liggett, supra, 238. Because the facts of this case do not warrant an exception to that rule, we conclude that the court correctly refused to set aside the jury’s verdict even though it awarded Schwartz zero damages.

The judgment is affirmed.

In this opinion the other judges concurred.

       Dattalo and the 709 Sports Club are not involved in the present appeal.

       The complaint alleged that DeVito has an ownership interest in the property at 34 Martin Luther King Boulevard and is a founding member of an unincorporated association called the 709 Sports Club. The complaint further alleged that Schwartz and Dattalo are founding members of an unincoiporated association also called the 709 Sports Club. That club is on the properly coowned by DeVito at 34 Martin Luther King Boulevard.

       The “counterclaim defendant’s verdict” form states: “In accordance with our answers to the interrogatories, the jury unanimously finds the issues for the counterclaim defendant, Albert DeVito, as against the counterclaim plaintiff, Edward Schwartz.”

       The “counterclaim plaintiffs verdict” form states: “In accordance with our answers to the interrogatories, the jury unanimously finds the issues for the claimant, the counterclaim plaintiff, Edward Schwartz, as against the counterclaim defendant, Albert DeVito, and further finds that the claimant sustained damages in the amount of: $0 and further finds, in accordance with our answer to Interrogatory 10, that said claimant is entitled to an award of punitive damages in this amount: $0.”