author: LAVINE, J.

text:
    OURANIA ARGENTINIS ET AL. v. LISA FORTUNA ET AL.
    (AC 33045)
    Lavine, Alvord and Bear, Js.
    Argued November 29, 2011
    officially released April 3, 2012

      Brian J. Harte, pro se, the appellant (defendant).

      Jessica L. Braus, for the appellee (plaintiffs).
   Opinion

LAVINE, J.

Connecticut courts are solicitous of self-represented parties when it does not interfere with the rights of other parties. See Watkins v. Thomas, 118 Conn. App. 452, 456, 984 A.2d 106 (2009). Our courts allow self-represented parties some latitude, but that latitude is constrained by our rules of practice; see, e.g., Oliphant v. Commissioner of Correction, 274 Conn. 563, 569-70, 877 A.2d 761 (2005); the purpose of which “is to provide a just determination of every proceeding.” (Internal quotation marks omitted.) Snowdon v. Grillo, 114 Conn. App. 131, 137, 968 A.2d 984 (2009). A motion for default for failure to plead may enter against a defendant who fails to answer a complaint; see Practice Book § 17-32; and judgment may be rendered on the default. See Practice Book § 17-33. If, however, the default judgment constitutes plain error, our supervisory powers permit us to reverse said judgment “to ensure the fair and just administration of the courts.” (Internal quotation marks omitted.) State v. Elson, 125 Conn. App. 328, 361, 9 A.3d 731 (2010) (en banc), cert. granted on other grounds, 300 Conn. 904, 12 A.3d 572 (2011). This is such a case.

Following a hearing in damages in this case, the self-represented defendant, Brian Harte, appealed from the judgment of the trial court rendered in favor of the plaintiffs, Ourania Argentinis and Panagiotis Argentinis. On appeal, Harte claims that (1) he never received notice of the hearing in damages, (2) discovery and settlements with codefendants will demonstrate that he did not remove certain bushes as alleged by the plaintiffs and (3) an award of treble and punitive damages pursuant to General Statutes § 52-560 was not justified. We reverse, in part, the judgment of the trial court.

The following facts, as gleaned from the record, are relevant to our resolution of Harte’s appeal. On April 13, 2009, the plaintiffs filed an application for a prejudgment remedy supported by an affidavit in which Ourania Argentinis attested that she has owned the real property at 17 Catherine Terrace in Fairfield for more than fifteen years. The named defendant, Lisa Fortuna, has owned the adjoining property at 31 Catherine Terrace for seven years. Ourania Argentinis also attested that she had taken care of certain bushes that “border[ed] both” properties and that the care she provided was not authorized by the prior owner of 31 Catherine Terrace nor by Fortuna. Ourania Argentinis claimed that her taking care of the bushes was exclusive, open and hostile. She claimed ownership of the bushes and the land on which they were situated by adverse possession. Moreover, she attested that, while Fortuna was renovating her house at 31 Catherine Terrace, Fortuna authorized certain contractors to enter the plaintiffs’ land, displacing the soil and ruining the grass. Ourania Argen-tinis attested further that Fortuna created a nuisance by changing the grade of her land, causing flooding on the plaintiffs’ property. Ourania Argentinis believed that there was probable cause that a judgment would enter in the plaintiffs’ favor in the amount of $35,000.

On May 1, 2009, the plaintiffs filed a seven count, amended complaint against nine defendants, including Harte, whom the plaintiffs alleged was a carpenter hired to frame Fortuna’s house. In all counts of the amended complaint, the plaintiffs alleged that “[s]ince February 28,1972, the [plaintiffs have] used and enjoyed aportion of the property now owned by . . . Fortuna which was formerly owned by Julia Sheila McGar ... of an approximately one hundred . . . foot by ten . . . foot rectangular strip of land . . . that lies parallel to the plaintiffs’ southerly boundary and [Fortuna’s] northerly boundary and the landscaping contained thereon, including a row of bushes planted therein, all used exclusively by the plaintiffs.” The plaintiffs alleged that the defendants, including Harte, intentionally entered their land and removed the bushes; cut, destroyed and/ or carried away trees, timber and/or shrubbery without the plaintiffs’ permission in violation of § 52-560; breached the duty of care owed the plaintiffs by causing damage to their shrubbery; were unjustly enriched by using the rectangular strip of land to store “dirt” without paying for the use of the land; and created a private nuisance by (1) changing the roof line on Fortuna’s house and the grading on Fortuna’s land causing water to run onto the plaintiffs’ land and (2) placing an air-conditioning unit between her house and the plaintiffs’ house. The plaintiffs sought a judgment determining the rights of the parties in the strip of land and an order settling title thereto, equitable relief, costs, damages, treble damages pursuant to § 52-560, interest and such other relief as the court deemed proper.

Harte represented himself and filed an appearance on May 11, 2009, and the plaintiffs deposed him. Harte, however, failed to respond to the plaintiffs’ amended complaint, and a default for failure to plead entered against him on September 16, 2009. The plaintiffs withdrew their claims against the defendants Mark Lara-cuenta, Sean Thomas, John Mino, Sean Ferris and Edward Vizzo on October 27, 2009. On July 1, 2010, counsel for the plaintiffs filed a certificate of closed pleadings and claimed the matter for a hearing in damages to the court. On July 14, 2010, the plaintiffs withdrew the action as to the defendants Jeff Stopa and Stopa Landscaping, LLC. The action against Fortuna and Bank of America, N.A., was withdrawn on August 16, 2010, leaving Harte and Rivendell Home Improvement, LLC, as the remaining defendants. On September 4,2010, the court issued a notice of a hearing in damages to be held on December 6, 2010, at 10 a.m.

Harte failed to attend the hearing in damages, where the plaintiffs’ counsel presented the court with an affidavit from Ourania Argentinis for damages totaling $60,334.11 more than $25,000 in excess of the amount adverted to in the probable cause estimate. The court rendered judgment in the amount of $60,334.11 plus costs, ordered a weekly payment in the amount of $35 but failed to indicate which of the defendants was to pay the weekly order. On December 8, 2010, the plaintiffs filed a notice of judgment against Harte and Riven-dell Home Improvement, LLC, in the amount of $60,334.11 plus costs in the amount of $1226.60. Harte filed an appeal from the judgment on December 22, 2010.

The parties appeared for oral argument before this court on November 29, 2011. On January 10, 2012, we ordered, sua sponte, the trial court “to articulate the factual and legal basis for each and every item of damages awarded the plaintiffs against” Harte. The court filed its articulation on January 20, 2012. In its articulation, the court referred to Practice Book § 17-34 stating that that section “implies that each and every allegation of the plaintiffs’ complaint is proven, except the amount of damages, and then only after a notice of defenses. No such notice of defenses was filed by the defendants and the defendants did not appear at the hearing in damages .... The court adopted the plaintiffs’ Affidavit RE: Damages since it conforms to the allegations contained in the plaintiffs complaint.”

I

LIABILITY

On appeal, Harte claims that we should reverse the judgment against him because (1) he did not receive notice of the hearing and (2) deposition testimony and other facts demonstrate that he did not remove the plaintiffs’ bushes. We disagree. Harte cannot prevail on his liability claims because he failed to file an answer to the amended complaint.

A

As to his claim that he did not receive notice of the hearing in damages, the record demonstrates that notice was sent to Harte at his address of record. During oral argument before this court, Harte stated that the notice was delivered to his downstairs neighbor and was lost in “junk mail.” It is axiomatic that this court does not take evidence and does not make factual determinations. See, e.g., Weil v. Miller, 185 Conn. 495, 502, 441 A.2d 142 (1981). Whether Harte was prevented from attending the hearing in damages “by mistake, accident or other reasonable cause”; see General Statutes § 52-212; is not for this court to determine.

B

Harte also claims that the deposition testimony of Fortuna and Stopa, the landscaper, demonstrate that he did not remove the bushes. Although Harte entered an appearance, he never filed an answer to the plaintiffs’ amended complaint nor a notice of defense. Our rules of practice therefore preclude him from challenging the allegations contained in the complaint. See Practice Book § 17-34.

Practice Book § 17-34 (a) provides “[i]n any hearing in damages upon default, the defendant shall not be permitted to offer evidence to contradict any allegations in the plaintiffs complaint, except such as relate to the amount of damages, unless notice has been given to the plaintiff of the intention to contradict such allegations and of the subject matter which the defendant intends to contradict, nor shall the defendant be permitted to deny the right of the plaintiff to maintain such action, nor shall the defendant be permitted to prove any matter of defense, unless written notice has been given to the plaintiff of the intention to deny such right or to prove such matter of defense.”

This court has noted that “[c]ase law makes clear . . . that once the defendants had been defaulted and had failed to file a notice of intent to present defenses, they, by operation of law, were deemed to have admitted to all the essential elements in the claim and would not be allowed to contest liability at the hearing in damages.” (Internal quotation marks omitted.) Abbott Terrace Health Center, Inc. v. Parawich, 120 Conn. App. 78, 85, 990 A.2d 1267 (2010). “A default admits the material facts that constitute a cause of action . . . and entry of default, when appropriately made, conclusively determines the liability of a defendant.” (Internal quotation marks omitted.) Schwartz v. Milazzo, 84 Conn. App. 175, 178, 852 A.2d 847, cert. denied, 271 Conn. 942, 861 A.2d 515 (2004). “Following the entry of a default, all that remains is for the plaintiff to prove the amount of damages to which it is entitled. ... At a minimum, the plaintiff in such instances is entitled to nominal damages.” (Citation omitted.) Abbott Terrace Health Center, Inc. v. Parawich, supra, 86.

In this case, Harte failed to answer the plaintiffs’ amended complaint and did not file a notice of defense. In count one of their amended complaint, the plaintiffs alleged that they owned the land on which the bushes that had been removed were situated by means of adverse possession. That claim was not litigated, as the named parties settled the suit prior to trial. In count two of their amended complaint, the plaintiffs alleged that they were entitled to a judicial determination that they owned the land. That count, too, was not adjudicated. Counts one and two, however, were incorporated in each of the counts of the amended complaint. By virtue of the fact that Harte did not file an answer to the amended complaint, he is deemed to have admitted that the plaintiffs owned the subject land, although there was never a judicial determination of the same. See Whitaker v. Taylor, 99 Conn. App. 719, 726-27, 916 A.2d 834 (2007). Harte therefore is hable to the plaintiffs for at least nominal damages.

An appehate court, however, may examine the allegations of a complaint to ascertain whether “they are sufficient on their face to establish a valid claim for the relief requested.” Abbott Terrace Health Center, Inc. v. Parawich, supra, 120 Conn. App. 86. “Although the failure of a party to deny the material allegations of a pleading operates so as to impliedly admit the allegations, a default does not automatically trigger judgment for, or the relief requested by, the pleader. The pleader is entitled to an entry of judgment or a grant of relief as a function of the nonresponsive party’s default and the attendant implied admission only when the allegations in the well pleaded filing are sufficient on their face to make out a claim for judgment or relief. . . . While an admission carries with it all reasonable implications of fact and legal conclusions . . . the admission cannot traverse beyond the bounds of the underlying pleading and admit allegations not made by the pleader; the pleading is, unless leave is granted to modify, the ceiling.” (Citations omitted; internal quotation marks omitted.) Commissioner of Social Services v. Smith, 265 Conn. 723, 736-37, 830 A.2d 228 (2003). In part II of this opinion, we consider the extent to which the plaintiffs are entitled to the relief they requested. See id.

n

DAMAGES

In his brief, which is spare, Harte claims that the “awarding of treble damages and punitive damages at the default judgment hearing under [§] 52-560 [was] entirely unjustified because evidence and depositions will prove conclusively that [he] did not remove or destroy any bushes on the [plaintiffs’] property.” As stated in part I B of this opinion, Harte forfeited the opportunity to contest the factual underpinnings of his liability. Ordinarily, we would decline to review the instant claim because it is inadequately briefed. See Paoletta v. Anchor Reef Club at Branford, LLC, 123 Conn. App. 402, 406, 1 A.3d 1238, cert. denied, 298 Conn. 931, 5 A.3d 491 (2010). In certain instances, however, “dictated by the interests of justice, we may, sua sponte, exercise our inherent supervisory power to review an unpreserved claim that has not been raised appropriately under the . . . plain error [doctrine]. . . . [O]ur supervisory powers are invoked only in the rare circumstance where [the] traditional protections are inadequate to ensure the fair and just administration of the courts . . . .” (Citations omitted; internal quotation marks omitted.) State v. Elson, supra, 125 Conn. App. 361. We conclude that this case presents one of those rare circumstances.

The plaintiffs here claim that Harte trespassed on their property, removed several bushes, created a nuisance and was unjustly enriched. In its articulation, the court stated that it adopted the plaintiffs’ affidavit of debt because it conforms to the allegations of their amended complaint. On appeal, Harte questions the propriety of treble and punitive damages for the losses claimed. We conclude that the court’s award of certain damages constitutes plain error.

We begin our analysis with a statement of the standard of review. “[T]he trial court has broad discretion in determining damages. . . . The determination of damages involves a question of fact that will not be overturned unless it is clearly erroneous. . . . Damages are recoverable only to the extent that the evidence affords a sufficient basis for estimating their amount in money with reasonable certainty.” (Internal quotation marks omitted.) Utica Mutual Ins. Co. v. Precision Mechanical Services, Inc., 122 Conn. App. 448, 464, 998 A.2d 1228, cert. denied, 298 Conn. 926, 5 A.3d 487 (2010).

An award of damages is controlled by the allegations of the complaint. “The interpretation of pleadings is an issue of law. As such, our review of the court’s decisions in that regard is plenary. . . . The allegations of a complaint limit the issues to be decided on the trial of a case and are calculated to prevent surprise to opposing parties. ... It is fundamental in our law that the right of a plaintiff to recover is limited to the allegations of his complaint. . . . The purpose of a complaint . . . is to limit the issues at trial .... Facts found but not averred cannot be made the basis for a recovery.” (Citation omitted; internal quotation marks omitted.) Stamford Landing Condominium Assn., Inc. v. Lerman, 109 Conn. App. 261, 271, 951 A.2d 642, cert. denied, 289 Conn. 938, 958 A.2d 1246 (2008). The task before us is to examine the allegations of the plaintiffs’ amended complaint to ascertain whether “they are sufficient on their face to establish a valid claim for the relief requested.” Abbott Terrace Health Center, Inc. v. Parawich, supra, 120 Conn. App. 86.

“It is axiomatic that the burden of proving damages is on the party claiming them. . . . When damages are claimed, they are an essential element of the plaintiffs proof and must be proved with reasonable certainty. . . . Damages are recoverable only to the extent that the evidence affords a sufficient basis for estimating their amount in money with reasonable certainty.” (Citations omitted; internal quotation marks omitted.) Stamford Landing Condominium Assn., Inc. v. Lerman, supra, 109 Conn. App. 272.

In the affidavit of debt signed by Ourania Argentinis, the plaintiffs sought the following damages: $10,144.25 for attorney’s fees, $2093.75 for surveyor’s fees, $10,807.56 for installation of a fence around the plaintiffs’ property, $10,000 for the diminution in the value of the land, treble damages pursuant to § 52-560, $4788.55 to replace shrubbery, $500 for unjust enrichment, $1500 for trespass and creation of a nuisance and $500 for travel expenses. In their prayer for relief, the plaintiffs sought a judgment determining the rights of the parties in the subject strip of land, equitable relief, costs, damages, treble damages pursuant to § 52-560, interest and such other and further relief as the court deemed proper.

At the hearing in damages, when asked the basis of the claim for attorney’s fees, the plaintiffs’ counsel stated “under § 52-560, punitive damages also can include attorney’s fees.” Section 52-560 provides in relevant part: “Any person who cuts, destroys or carries away any . . . shrubbery, standing or lying on the land of another . . . without license of the owner, and any person who aids therein, shall pay to the party injured . . . three times the reasonable value of any . . . shrubbery; but when the court is satisfied that the defendant was guilty through mistake and believed that the . . . shrubbery was growing on his land, or on the land of the person for whom he cut the . . . shrubbery, it shall render judgment for no more than its reasonable value.”

It is a principle of statutory construction that “a court must construe a statute as written.” (Internal quotation marks omitted.) State v. Singleton, 292 Conn. 734, 766, 974 A.2d 679 (2009). “We are not permitted to supply statutory language that the legislature may have chosen to omit.” (Internal quotation marks omitted.) Ventres v. Goodspeed Airport, LLC, 275 Conn. 105, 160, 881 A.2d 937 (2005), cert. denied, 547 U.S. 1111, 126 S. Ct. 1913, 164 L. Ed. 2d 664 (2006). Although § 52-560 provides that a person who cuts shrubbery without license of the owner shall pay “three times the reasonable value” of any shrubbery, nowhere does it provide for attorney’s fees or punitive damages. “[W]hen a cause of action has been created by a statute which expressly provides the remedies for vindication of the cause, other remedies should not readily be implied. . . . The ability to provide for such damages under § 52-560, as the plaintiff claims here, is a matter for the legislature. As the Supreme Court said in a case where attorney’s fees were provided under certain provisions of a statute and not elsewhere in that statute: To put it simply, when the General Assembly wanted to authorize the award of attorney’s fees it knew how to do it.” (Citations omitted; internal quotation marks omitted.) Koennicke v. Maiorano, 43 Conn. App. 1, 31-32, 682 A.2d 1046 (1996). The plaintiffs therefore were not entitled to attorney’s fees under § 52-560.

The plaintiffs sought damages for the removal of the bushes pursuant to § 52-560 and under the common law of negligent destruction of shrubs. In association with the loss of the bushes, Ourania Argentinis’ affidavit of debt claims $10,000 for the diminution in the value of the plaintiffs’ property, $10,807.56 to construct a fence around the plaintiffs’ entire property, treble damages and more than $4700 to replace the bushes. The court awarded the plaintiffs all damages requested, which constitutes error.

We next address the plaintiffs’ request of treble damages for removal of the bushes pursuant to § 52-560. Although § 52-560 provides for treble damages for the cutting of trees and shrubs under certain circumstances, it also provides that “when the court is satisfied that the defendant was guilty through mistake and believed that the . . . shrubbery was growing on his land, or on the land of the person for whom he cut the . . . shrubbery, it shall render judgment for no more than its reasonable value.” In counts one and two of their amended complaint, the plaintiffs pleaded adverse possession and quiet title pursuant to General Statutes § 47-31, respectively. By alleging those two counts, the plaintiffs, in effect, concede that the ownership of the strip of land on which the subject bushes were situated was disputed. See Dreier v. Upjohn Co., 196 Conn. 242, 248, 492 A.2d 164 (1985) (“[factual allegations contained in pleadings upon which the cause is tried are considered judicial admissions and hence irrefutable as long as they remain in the case”). A reasonable inference to be drawn from the plaintiffs’ allegations is that Fortuna and her contractors reasonably believed the bushes were on Fortuna’s property.

Moreover, the record contains no factual finding as to the owner of the strip of land where the bushes were situated and the judgment file contains no record of judgment as to counts one and two of the amended complaint. Without such a finding or judgment, it is not possible to determine whether treble damages or reasonable value was the appropriate measure of damages. Although the pleadings in this case are somewhat similar in kind to those alleged in Koennicke v. Maiorano, supra, 43 Conn. App. 1, in that quiet title and violation of § 52-560 are alleged, the trial court in Koen-nicke quieted title to the subject land in the plaintiff in that case. Id., 4, 30-31.

In this case, the plaintiffs’ affidavit of debt seeks damages for the diminution in the value of their property due to the removal of the bushes. “In determining the proper measure of damages for injury to land, [t]he legal effort ... is to compensate the landowner for the damage done. . . . This is essentially true whether the injury is redressed under a theory of tort or breach of contract. . . . The basic measure of damages for injury to real property is the resultant diminution in its value. . . . There is, however, a well established exception to this formula; such diminution in value may be determined by the cost of repairing the damage, provided, of course, that that cost does not exceed the former value of the property and provided also that the repairs do not enhance the value of the property over what it was before it was damaged. . . . The cost of repairs, therefore, is a proxy for diminution in value caused by damage to property. Because these are, in effect, alternative measures of damages, the plaintiff need not introduce evidence of both diminution in value and cost of repairs.” (Internal quotation marks omitted.) Centimark Corp. v. Village Manor Associates Ltd. Partnership, 113 Conn. App. 509, 529-30, 967 A.2d 550, cert. denied, 292 Conn. 907, 973 A.2d 103 (2009). The plaintiffs may be compensated only for the diminution in the value of their property or the cost of repair to its original condition, not both and no more.

The plaintiffs also sought $4788 to replace the bushes pursuant to their negligent destruction of bushes count in addition to their claims under § 52-560. “[A] plaintiff may be compensated only once for his just damages for the same injury.” (Internal quotation marks omitted.) Mahon v. B.V. Unitron Mfg., Inc., 284 Conn. 645, 661, 935 A.2d 1004 (2007). “[T]he rule precluding double recovery is a simple and time-honored maxim that [a] plaintiff may be compensated only once for his just damages for the same injury. . . . Connecticut courts consistently have upheld and endorsed the principle that a litigant may recover just damages for the same loss only once. The social policy behind this concept is that it is a waste of society’s economic resources to do more than compensate an injured party for a loss and, therefore, that the judicial machinery should not be engaged in shifting a loss in order to create such an economic waste.” (Internal quotation marks omitted.) Id., 663. The plaintiffs therefore are not entitled to be compensated both for the diminution in the value of their property and the replacement cost of the bushes.

The plaintiffs also sought damages to pay for the installation of a fence around their entire property. By analogy, “[a]s a general rule, in awarding damages upon a breach of contract, the prevailing party is entitled to compensation which will place [it] in the same position [it] would have been in had the contract been properly performed.” (Internal quotation marks omitted.) Naples v. Keystone Building & Development Corp., 295 Conn. 214, 224, 990 A.2d 326 (2010). “The repairs, however, may not result in improvements to the property, in the sense that they may not be of a different and superior type than they would have been had they been constructed as warranted.” (Internal quotation marks omitted.) Id. The plaintiffs alleged the loss of certain bushes on one side of their property, bordering their property and Fortuna’s. The installation of a fence on the disputed side of their property is not an appropriate remedy for the loss of the bushes, much less the installation of a fence around their entire property. It was improper for the court to award the plaintiffs damages for the installation of the fence around their property.

As counsel for the plaintiffs informed the court at the hearing in damages, only five of the seven counts of the complaint are alleged against Harte. The first two counts of the complaint sounding in adverse possession and quiet title are alleged against Fortuna. Any costs, such as the surveyor’s fees, related to the determination of who owned the land where the bushes were situated were improperly assessed against Harte, as there is no allegation that he had an ownership interest in either of the adjoining pieces of real property on Catherine Terrace in Fairfield.

The plaintiffs also allege trespass in that “Fortuna and/or her contractors intentionally entered and continue to enter said property of the plaintiff or parts thereof disrupting said property and pulling up bushes.” Moreover, as “a direct and proximate result of such entries . . . Ourania Argentinis and her real property, has and continues to suffer damages.” At the hearing in damages, the plaintiffs sought $1500 for trespass on the basis of repetitive trespass and $500 for the cost of travel to Connecticut from their home in Georgia to keep an eye on their Fairfield property. The plaintiffs’ amended complaint does not allege travel as an element of damages. Living in Georgia is a choice the plaintiffs made and any costs they incurred traveling to and from Connecticut are not attributable to Harte. Moreover, the facts of this case allege a temporary, not a permanent, trespass.

“The measure of damages to be awarded for an injury resulting from a trespass depends upon whether the injury is permanent or temporary .... A temporary injury is one which may be abated or discontinued at any time .... [Wjhere the trespass is temporary in character, only those damages may be recovered which have accrued up to the time of the commencement of the action, since it is not to be presumed that the trespass will continue. . . . When injury to property resulting from a trespass is remedial by restoration or repair, it is considered to be temporary, and the measure o[f] damages is the cost of restoration and repair.” (Citations omitted; internal quotation marks omitted.) Bristol v. Tilcon Minerals, Inc., 284 Conn. 55, 90, 931 A.2d 237 (2007). In this case, the proper measure of damages was the cost of repair.

The plaintiffs also sought damages of $500 for unjust enrichment. They alleged, in part, that the defendants “have used the [trespass [a]rea from the time of [the] initial trespass to the present time and continue to use said area ... for the storage of . . . dirt on [the plaintiffs’] property . . . [and] have been unjustly enriched to by virtue of [the defendants’] failure to pay for said use by them of the trespass area.” The unjust enrichment count is derivative of the plaintiffs’ trespass claim, which sounds in tort.

“[A] claim for unjust enrichment has broad dimensions. Unjust enrichment applies wherever justice requires compensation to be given for property or services rendered under a contract, and no remedy is available by an action on the contract. ... A right of recovery under the doctrine of unjust enrichment is essentially equitable, its basis being that in a given situation it is contrary to equity and good conscience for one to retain a benefit which has come to him at the expense of another. . . . With no other test than what, under a given set of circumstances, is just or unjust, equitable or inequitable, conscionable or unconscionable, it becomes necessary in any case where the benefit of the doctrine is claimed, to examine the circumstances and conduct of the parties and apply this standard. . . . Unjust enrichment is, consistent with the principles of equity, a broad and flexible remedy. . . . Recovery [under unjust enrichment] is proper if the defendant was benefited, the defendant did not pay for the benefit and the failure of payment operated to the detriment of the plaintiff.” (Citations omitted; emphasis added; internal quotation marks omitted.) Rent-A-PC, Inc. v. Rental Management, Inc., 96 Conn. App. 600, 604-605, 901 A.2d 720 (2006). A claim for unjust enrichment is not applicable in this case because the plaintiffs’ claim sounds in trespass, not contract.

In count seven of the amended complaint, the plaintiffs alleged that, in renovating Fortuna’s house, the defendants created a nuisance in one or more of the following ways: changing the roof line of the plans submitted to the Fairfield building department, changing the grade on Fortuna’s land “which will result” in a water run off problem for the plaintiffs’ lot and placing an air-conditioning unit between the plaintiffs’ land and Fortuna’s land. The plaintiffs alleged that on information and belief, the Fairfield engineering department advised Fortuna to install gutters and a water retention system. Moreover, they alleged that Fortuna’s “refusal to incorporate and execute the town engineer’s recommendation is unreasonable.”

“A private nuisance is a nontrespassory invasion of another’s interest in the private use and enjoyment of land. . . . The law of private nuisance springs from the general principle that [i]t is the duty of every person to make a reasonable use of his own property so as to occasion no unnecessary damage or annoyance to his neighbor. . . . The essence of a private nuisance is an interference with the use and enjoyment of land. . . . [I]n order to recover damages in a common-law private nuisance cause of action, a plaintiff must show that the defendant’s conduct was the proximate cause of an unreasonable interference with the plaintiffs use and enjoyment of his or her property. The interference may be either intentional ... or the result of the defendant’s negligence. . . . The determination of whether the interference is unreasonable should be made in light of the fact that some level of interference is inherent in modem society. There are few, if any, places remaining where an individual may rest assured that he will be able to use and enjoy his property free from all interference. Accordingly, the interference must be substantial to be unreasonable.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Kinsale, LLC v. Tombari, 95 Conn. App. 472, 482-83, 897 A.2d 646 (2006).

Nowhere in their amended complaint did the plaintiffs allege that Fortuna’s, let alone Harte’s, refusal to incorporate the town engineer’s recommendation was a substantial interference with the use of the plaintiffs’ land. See id., 483. “Facts found but not averred cannot be made the basis for a recovery.” (Internal quotation marks omitted.) Stamford Landing Condominium Assn., Inc. v. Lerman, supra, 109 Conn. App. 271.

On the basis of our review of the plaintiffs’ amended complaint, their affidavit of debt and the court’s articulation, we conclude that the court’s awarding the plaintiffs all of the damages listed in their affidavit of debt constitutes plain error. “[This] court may reverse . . . the decision of the trial court if it determines that the factual findings are clearly erroneous in view of the evidence and pleadings in the whole record, or that the decision is otherwise erroneous in law.” Practice Book § 60-5. Harte failed to answer the plaintiffs’ complaint and is therefore liable to the plaintiffs for at least nominal damages. The plaintiffs are entitled to damages for the injuries they sustained, but the damages they are awarded may not put them in a better position than they were in before Fortuna undertook to renovate her home. A new hearing in damages is required.

The judgment as to Harte is reversed only as to the award of damages and the case as to him is remanded for a new hearing in damages; the judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       See Practice Book § 60-5, which is entitled “Review by the Court; Plain Error; Preservation of Claims.”

       See Practice Book § 60-2, which is entitled “Supervision of Procedure.”

       The plaintiffs alleged adverse possession and quiet title pursuant to General Statutes § 47-31 against Fortuna only. The amended complaint alleged trespass, damages for cutting shrubbery pursuant to General Statutes § 52-560, negligent destruction of shrubs, unjust enrichment and private nuisance against all of the defendants.

       The plaintiffs brought this action against the following defendants: For-tuna, Harte, Mark Laracuenta, Sean Thomas, John Mino, Sean Ferris, Edward Vizzo, Rivendell Home Improvement, LLC, Jeff Stopa and Stopa Landscaping, LLC. Bank of America, N.A., the holder of mortgages on 31 Catherine Terrace, was later cited in as a party defendant. Harte is the only defendant who is a party to this appeal.

       Rivendell Home Improvement, LLC, Harte’s business, was defaulted for failure to appear. Rivendell Home Improvement, LLC, is not a party to this appeal.

       The file contains a notice dated December 29, 2009, stating: “Disposition on Objection 133 as follows: Objection is moot based on settlement of case at last pretrial. Tyma, J.” On March 1,2010, Fortuna’s counsel filed a motion for continuance of the pretrial conference representing that “[pjarties are close to settlement which may resolve the lawsuit as to all claims and [thirty] day continuance is requested to engage in certain activities that are preconditions of settlement.”

       Ourania Argentinis claimed $10,144.25 in attorney’s fees, $2093.75 for surveyor’s fees, $10,807.56 for the installation of a fence, $1500 for trespassing and nuisance, $4788.55 for negligent destruction of bushes, $10,000 for diminution in the value of the plaintiffs’ property, $20,000 treble damages pursuant to § 52-560, $500 for storage of dirt on the plaintiffs’ land and $500 for travel to Fairfield from their home in Georgia.

       The transcript from the hearing in damages contains the following colloquy between the court and counsel for the plaintiffs:
      “The Court: And the basis for attorney’s fees?
      “[The Plaintiffs Counsel]: Oh. That would be . . . under § 52-560, punitive damages also can include attorney’s fees under O’Leary v. Industrial Park Corp., 211 Conn. 648 [651, 560 A.2d 968 (1989)].
      “The Court: All right. I have an affidavit of damages by Ourania Argentinis. . . . Okay. And based on that affidavit, the Court will enter a judgment in favor of the plaintiff against the—
      “[The Plaintiffs Counsel]: The defendant — these two defendants remaining are Brian Harte and his company Rivendell. Everyone else has been released.
      “The Court: All right. Then we will enter judgment against those — those entities for the amount of $60,334.11, together with costs.”

       The order was issued pursuant to Practice Book §§ 60-2 and 60-5.

       The court provided a transcript of the hearing in damages and Ourania Argentinis’ affidavit and its attachments.

       After he filed this appeal, on December 30, 2010, Harte filed a motion to open the judgment. It does not appear from the record that the trial court has ruled on that motion.

       Before this court, Harte stated that other defendants had informed him that the matter was settled. The record demonstrates that the plaintiffs’ counsel certified that copies of the withdrawal of the action against Stopa were mailed to Harte. Apparently, Harte relied on such information to his detriment.

       “This court repeatedly has stated that plain error is not a rule of review-ability but a rule of reversal reserved for those cases in which the trial court’s error is so obvious that it affects the integrity of and the public’s confidence in the judicial system.” Hall v. Bergman, 106 Conn. App. 660, 668 n.14, 943 A.2d 615 (2008), aff'd, 296 Conn. 169, 994 A.2d 666 (2010).

        “Ventres v. Goodspeed Airport, LLC, [supra, 275 Conn. 158-61], raises but does not decide the issue of whether § 52-560 preempts common law.” Caciopoli v. Lebowitz, 131 Conn. App. 306, 313, 26 A.3d 136, cert. granted, 303 Conn. 913, 32 A.3d 965 (2011). In Caciopoli, the defendant’s petition for certification to appeal was granted limited to the following question: “Does ... § 52-560 preempt the common-law rule of damages for cutting down trees located on another person’s property?” Caciopoli v. Lebowitz, supra, 303 Conn. 913. The question in Caciopoli was the proper measure of damages for timber trespass. Caciopoli v. Lebowitz, supra, 131 Conn. App. 311.
      “Common law provides at least three remedies for intentional trespass in situations in which trees have been removed. In an action for timber trespass, [i]t is an appropriate remedy either for the recovery of damages for the mere unlawful entry upon the plaintiffs land; for the recovery of the value of the trees removed, considered separately from the land; or for the recovery of damages to the land resulting from the special value of the trees as shade or ornamental trees while standing on the land. For a mere unlawful entry upon land nominal damages only would be awarded. If the purpose of the action is only to recover the value of the trees as chattels, after severance from the soil, the rule of damages is the market value of the trees for timber or fuel. For the irqury resulting to the land from the destruction of trees which, as part of the land, have a peculiar value as shade or ornamental trees, a different rule of damages obtains, namely, the reduction in the pecuniary value of the land occasioned by the act complained of.” (Internal quotation marks omitted.) Id., 311-12.

       In her affidavit of debt, which never mentions Harte by name, Ourania Argentinis attested: “I am also claiming treble damages because in his deposition [the] [defendant stated on page 38 of his deposition that not the entire bush was on his client [Fortuna’s] land. This proves to me that he knew that the bushes were not on the Fortuna property but he went ahead and cut them anyway.” The deposition testimony to which Ourania Argentinis refers is not attached to her affidavit of debt. Deposition testimony is an evidentiary admission as opposed to a conclusive judicial admission. See Bowen v. Serksnas, 121 Conn. App. 503, 518 n.12, 997 A.2d 573 (2010) (judicial admissions are conclusive on trier of fact; evidentiary admissions are only evidence to be accepted or rejected).
      Moreover, Harte contends that Stopa testified at his deposition that he, Stopa, removed the bushes. Harte unsuccessfully attempted to place portions of Stopa’s deposition testimony in the record. When questioned during oral argument, the plaintiffs’ counsel did not disclose the terms of the plaintiffs’ settlement with some of the other defendants.

       The trial court file contains a motion to enforce a settlement agreement filed by Fortuna’s counsel. The settlement agreement addresses a survey and the installation of monuments between the land owned by the plaintiffs and Fortuna.


source: Caselaw Access Project

author: ALVORD, J.

license: Public Domain

text:
    CITY OF HARTFORD v. HARTFORD MUNICIPAL EMPLOYEES ASSOCIATION
    (AC 32951)
    DiPentima, C. J., and Alvord and West, Js.

      Argued January 17
    officially released April 3, 2012

      Stephen F. McEleney, for the appellant (defendant).

      Lori A. Mizerak, assistant corporation counsel, for the appellee (plaintiff).
   Opinion

ALVORD, J.

The defendant union, the Hartford Municipal Employees Association, appeals from the judgment of the trial court granting the application of the plaintiff, the city of Hartford, to vacate an arbitration award. On appeal, the defendant claims that the court improperly vacated the arbitral award on public policy grounds. We agree and, accordingly, reverse the judgment of the trial court.

The following facts and procedural history are relevant to the defendant’s appeal. On October 27, 2005, Vilma Rivera-Saez began her employment with the plaintiff in the tax collector’s office of the finance department. At all relevant times, Rivera-Saez was a supervisory employee. In the summer of 2008, the tax collector contacted the plaintiffs chief auditor, Patrick Campbell, and asked him to investigate a series of cash shortages in that office. During the course of the investigation, Campbell discovered a scheme whereby unrecorded checks were substituted for cash in four daily deposits that had been made in November, 2007. Cash had been taken from a cashier’s box in the office and replaced with checks that had been received in the mail. Checks received in the mail were processed and documented separately from those payments made directly to the cashiers in the tax collector’s office.

By way of background, if a taxpayer came to the office to make a payment by cash or check, he or she would be serviced by a cashier at one of the “ ‘windows’ ” or cash registers. The cashier would record the transaction in the municipal computer system (Munis system) and place the cash or check into a locked box. Each cashier had a locked box and was responsible, at the end of the day, for balancing the cash and checks received that day against a report generated by the Munis system. Each cashier prepared a “ ‘Daily Deposit Reconciliation Record’ ” (reconciliation record) that listed the cash and checks received with a certification that the deposits in that cashier’s box matched the deposits recorded in the Munis system. A printout of the Munis report was attached to the reconciliation record, and the cash and checks itemized in the reconciliation record were supposed to match the cash and checks as recorded in the Munis report.

Campbell discovered that the cash and checks itemized on the Munis report did not match the itemization on the reconciliation record on four separate occasions. Although the total amount of payments received was the same, the amount in cash and the amount in checks differed. Those were the times that checks received in the mail were substituted for cash in the cashier’s box. A particular cashier, who was Rivera-Saez’ subordinate, was responsible for the preparation of the reconciliation records when all of the discrepancies occurred. On three of the four occasions, Rivera-Saez assisted him with the preparation of his reconciliation records and even initialed some of the paperwork. Campbell additionally discovered that Rivera-Saez, on several occasions, instructed that cashier to leave his box unlocked during his lunch breaks so that she could service taxpayers at the window in his absence.

Following the investigation, the plaintiff terminated the employment of Rivera-Saez for “serious acts of misconduct and/or gross negligence and extreme breach of her responsibility as a supervisory employee.” The defendant filed a grievance on her behalf challenging the termination. Pursuant to the collective bargaining agreement between the plaintiff and the defendant, the parties submitted the grievance to arbitration. The issues before the three member arbitration panel were as follows: (1) “Did the [c]ity of Hartford terminate Vilma Rivera-Saez for just cause?” and (2) “If not, what shall the remedy be?”

The arbitration panel conducted a two day hearing and issued its award on December 9, 2009. It concluded that the plaintiff had terminated the employment of Rivera-Saez without just cause and that she should be reinstated to her position without back pay and benefits. Additionally, the award provided that she should be trained in the finance department’s current practices and procedures. One panel member disagreed and wrote a dissenting opinion in which he concluded that returning Rivera-Saez to her former position of supervisor in the tax collector’s office was contrary to public policy.

In the majority opinion, the arbitration panel made the following factual findings: (1) Rivera-Saez failed to perform her supervisory duties correctly, (2) each cashier was accountable for his or her own cash drawer and should not have delegated that responsibility to a third party, even if that third party was the cashier’s supervisor, (3) as a supervisor, Rivera-Saez was required to document the work performance of her subordinate cashier, but there was no evidence that she coached, counseled or documented his performance deficiencies, (4) although the plaintiff “implied” that Rivera-Saez had “ ‘stolen’ ” cash through an improper deposit scheme, “there was no evidence offered to show [Rivera-Saez] was, in fact, a thief, thus this implication was quickly put aside by the [p]anel,” (5) if the plaintiff had proved that Rivera-Saez had stolen the cash, termination of employment would have been appropriate, (6) the only reason for termination left to be considered by the panel was the plaintiff’s allegation that Rivera-Saez had been “ ‘grossly negligent’ in the performance of her duties,” (7) Rivera-Saez handled her subordinate cashier’s accounts in a “fiscally irresponsible” manner, (8) when she directed her subordinate cashier to leave his cashier’s box unlocked, he was no longer being provided with a safe and secure work environment, (9) the reason Rivera-Saez gave for failing to compare the reconciliation record with the Munis report was self-serving and suggested that she was unaware of her responsibilities as a supervisor, (10) Rivera-Saez was grossly negligent, (11) Rivera-Saez received the ultimate discipline of termination of employment, whereas the cashier responsible for balancing his deposits was “given a slap on the wrist,” (12) Rivera-Saez had an unblemished disciplinary record prior to her termination, (13) the plaintiffs failure to have written departmental policies and procedures regarding moneys collected contributed to the poor work performance of Rivera-Saez, (14) the plaintiff “apparently condoned [her] work behaviors as it failed to discipline, coach or counsel [Rivera-Saez] about claimed unacceptable practices,” (15) the overall operation of the department was lax and unsecure, (16) the plaintiff instituted new written policies soon after Rivera-Saez’ employment was terminated and (17) the plaintiff had to “accept some blame” because “it failed to adequately supervise the supervisor.” Accordingly, the panel concluded that the termination of Rivera-Saez’ employment was too harsh a penalty, although it recognized that her conduct warranted some level of discipline. It therefore reduced the termination to an indefinite suspension without back pay and benefits, reinstated her to her supervisory position and directed the plaintiff to train her in the department’s current practices and procedures.

The plaintiff applied to the trial court to vacate the arbitration award, claiming, inter alia, that the panel’s award violated public policy. The defendant filed a cross application to confirm the arbitration award. Although a stipulation signed by the parties provided that either party could submit copies of the arbitration exhibits and the transcript of the arbitration proceedings to the court, only the transcript was made a part of the court’s record. Following a hearing, the court granted the plaintiffs application to vacate the award and denied the defendant’s cross application to confirm the award in a memorandum of decision issued October 21, 2010. Quoting extensively from the opinion of the dissenting member of the panel, the court concluded: “Based on her clear role in the scheme to swap cash for checks, the [plaintiff] cannot reasonably be expected to trust [Rivera-Saez]. The [a]ward, which returns [Rivera-Saez] to her position of financial responsibility is against public policy.” The defendant filed a motion for reargument pursuant to Practice Book § 11-11, which the court denied on November 22, 2010. This appeal followed.

The defendant claims that the court improperly vacated the arbitration award because the plaintiff failed to demonstrate the existence of any explicit, well-defined and dominant public policy that would be violated by an award reinstating Rivera-Saez to her previous position. We agree.

We begin with general principles governing our review of arbitration awards. “Judicial review of arbitral decisions is narrowly confined. . . . When the parties agree to arbitration and establish the authority of the arbitrator through the terms of their submission, the extent of our judicial review of the award is delineated by the scope of the parties’ agreement. . . . When the scope of the submission is unrestricted, the resulting award is not subject to de novo review even for errors of law so long as the award conforms to the submission. . . . Because we favor arbitration as a means of settling private disputes, we undertake judicial review of arbitration awards in a manner designed to minimize interference with an efficient and economical system of alternative dispute resolution. . . .

“Where the submission does not otherwise state, the arbitrators are empowered to decide factual and legal questions and an award cannot be vacated on the grounds that . .'. the interpretation of the agreement by the arbitrators was erroneous. Courts will not review the evidence nor, where the submission is unrestricted, will they review the arbitrators’ decision of the legal questions involved. ... In other words, [u]nder an unrestricted submission, the arbitrators’ decision is considered final and binding; thus the courts will not review the evidence considered by the arbitrators nor will they review the award for errors of law or fact. . . .

“The long-standing principles governing consensual arbitration are, however, subject to certain exceptions. Although we have traditionally afforded considerable deference to the decisions of arbitrators, we have also conducted a more searching review of arbitral awards in certain circumstances. In Garrity v. McCaskey, [223 Conn. 1, 6, 612 A.2d 742 (1992)], [our Supreme Court] listed three recognized grounds for vacating an award: (1) the award rules on the constitutionality of a statute ... (2) the award violates clear public policy ... or (3) the award contravenes one or more of the statutory proscriptions of [General Statutes] § 52-418 (a). . . . The judicial recognition of these grounds for vacatur evinces a willingness, in limited circumstances, to employ a heightened standard of judicial review of arbi-tral conclusions, despite the traditional high level of deference afforded to arbitrators’ decisions when made in accordance with their authority pursuant to an unrestricted submission.” (Citation omitted; internal quotation marks omitted.) AFSCME, Council 4, Local 1565 v. Dept. of Correction, 298 Conn. 824, 834-35, 6 A.3d 1142 (2010). Here, the defendant’s claim implicates the second exception only, .and, therefore, it will be the focus of our discussion.

“Where there is no clearly established public policy against which to measure the propriety of the arbitrator’s award, there is no public policy ground for vacatur. If, on the other hand, it has been determined that an arbitral award does implicate a clearly established public policy, the ultimate question remains as to whether the award itself comports with that policy. [Our Supreme Court has concluded] that where a party challenges a consensual arbitral award on the ground that it violates public policy, and where that challenge has a legitimate, colorable basis, de novo review of the award is appropriate in order to determine whether the award does in fact violate public policy.” Schoonmaker v. Cummings & Lockwood of Connecticut, P.C., 252 Conn. 416, 429, 747 A.2d 1017 (2000).

“A court’s refusal to enforce an arbitrator’s award on the basis of a violation of public policy is a specific application of the more general doctrine, rooted in the common law, that a court may refuse to enforce contracts that violate law or public policy. A challenge that an award is in contravention of public policy is premised on the fact that the parties cannot expect an arbitration award approving conduct which is illegal or contrary to public policy to receive judicial endorsement any more than parties can expect a court to enforce such a contract between them. . . . When a challenge to the arbitrator’s authority is made on public policy grounds, however, the court is not concerned with the correctness of the arbitrator’s decision but with the lawfulness of enforcing the award. . . . Accordingly, the public policy exception to arbitral authority should be narrowly construed and [a] court’s refusal to enforce an arbitrator’s interpretation of [collective bargaining agreements] is limited to situations where the contract as interpreted would violate some explicit public policy that is well defined and dominant, and is to be ascertained by reference to the laws and legal precedents and not from general considerations of supposed public interests. . . .

“A two-step analysis . . . [is] often employed [in] deciding cases such as this. First, the court determines whether an explicit, well-defined and dominant public policy can be identified. If so, the court then decides if the arbitrator’s award violated the public policy. . . . We note that [t]he party challenging the award bears the burden of proving that illegality or conflict with public policy is clearly demonstrated. . . . Therefore, given the narrow scope of the public policy limitation on arbitral authority, the plaintiff can prevail . . . only if it demonstrates that the [arbitrators’] award clearly violates an established public policy mandate. ... It bears emphasizing, moreover, that implicit in the stringent and narrow confines of this exception to the rule of deference to arbitrators’ determinations, is the notion that the exception must not be inteipreted so broadly as to swallow the rule.” (Citation omitted; internal quotation marks omitted.) AFSCME, Council 4, Local 1565 v. Dept. of Correction, supra, 298 Conn. 835-36.

Our courts “have looked to a variety of sources in determining whether an arbitral award violates a well-defined public policy, and have cited, as examples of possible sources, statutes, administrative decisions and case law. ... In those cases in which we have vacated an arbitral award on public policy grounds, the public policy has most commonly been grounded in the General Statutes.” (Citation omitted.) MedVal USA Health Programs, Inc. v. MemberWorks, Inc., 273 Conn. 634, 657, 872 A.2d 423, cert. denied sub nom. Vertrue, Inc. v. MedVal USA Health Programs, Inc., 546 U.S. 960, 126 S. Ct. 479, 163 L. Ed. 2d 363 (2005).

In the present case, the plaintiff has provided several articulations of the public policy that it claims would be violated by reinstating Rivera-Saez to her supervisory position in the tax collector’s office. In its appellate brief, the plaintiff described the public policy at issue in this case as follows: (1) “enforcing the award would constitute a violation of public policy in that [Rivera-Saez], who was found to be grossly negligent in her duties . . . which included handling [c]ity money and finances, held a position of financial trust and returning her to work would jeopardize the fiscal accountability of the [c]ity”; (2) “the public policy [is] that employers should be able to trust their employees, especially those who are in a position of financial responsibility, trust that they will be able to do their job, and trust that the public who are required to deal with such employees feel that they are being served in an honest and trustworthy manner”; (3) “it would be a violation of public policy to send [Rivera-Saez], a grossly negligent employee with a total disregard of any accountability on her part, back to work in a department [that] regularly deals with finances and [that] requires employees in their job responsibilities and tasks to exercise fiscal responsibility”; (4) “it would be a violation of public policy to bring back to work a grossly negligent employee, such as [Rivera-Saez], in the position of Administrative Assistant, which is a position of financial responsibility and public trust”; (5) “ ‘public trust is a strong public policy’ ”; (6) “courts have also consistently found public policy violations where the employee engages in some apparent and egregious misconduct”; and (7) “it was not just that [Rivera-Saez] was grossly negligent, but that she was grossly negligent in an office whose main role is to handle and collect taxpayer money and appropriately credit taxpayers’ accounts, and is in a position of public trust that required her to be fiscally responsible.” During oral argument, the plaintiff stressed that Rivera-Saez could not be trusted to do her job and that the taxpayers’ moneys constituted a “public fund.”

The trial court, in determining that the award reinstating Rivera-Saez to her former position would violate public policy, concluded that Rivera-Saez “had played a pivotal role in the theft of public funds,” that she “had a starring role in the scheme to steal from the [plaintiff] by swapping out cash for unrecorded checks,” and that “[bjased on her clear role in the scheme to swap cash for checks, the [plaintiff] cannot reasonably be expected to trust [Rivera-Saez].” In reaching its conclusion, the court stated that it was “not bound by the finding by the majority of the panel that there was no evidence presented to show that [Rivera-Saez] was a thief.” (Internal quotation marks omitted.)

The plaintiff has not identified a definitive source for the public policy that it claims was violated by the arbitral award. There is no reference to a statute, either criminal or noncriminal, an administrative decision or relevant case law that provides the basis for an explicit, well-defined and dominant public policy. Its position that grossly negligent employees in positions of fiscal responsibility handling public funds cannot be reinstated without violating public policy sounds more like “general considerations of supposed public interests”; (internal quotation marks omitted) AFSCME, Council 4, Local 1565 v. Dept. of Correction, supra, 298 Conn. 836; which our case law expressly has found to be insufficient for vacating an arbitral award.

Even if we assume arguendo that the plaintiff has successfully demonstrated that a well-defined public policy was implicated, we would nevertheless conclude that the plaintiff failed to demonstrate how the arbitration award reinstating Rivera-Saez to her position as supervisor would clearly violate that public policy. In reaching that determination, we rely on the facts as found by the arbitration panel. Contrary to the statement of the trial court in its memorandum of decision, “courts are bound by the arbitrator’s factual findings when reviewing a claim that an award violates public policy . . . .” HH East Parcel, LLC v. Handy & Harman, Inc., 287 Conn. 189, 204, 947 A.2d 916 (2008). “The legal determination of whether a particular award violates public policy necessarily depends on the facts found by the arbitrator during those proceedings.” (Emphasis in original; internal quotation marks omitted.) Id., 201.

Accordingly, the trial court was obligated to consider the following factual findings made by the arbitrators when it decided whether the arbitral award violated public policy. There was no evidence submitted to show that Rivera-Saez was a “thief,” and she had an unblemished disciplinary record prior to her termination. Although her employment was terminated for her failure to supervise her subordinate properly, the cashier responsible for balancing all four erroneous deposits was merely “given a slap on the wrist.” At the time of the incidents, the plaintiff had no written departmental policies and procedures pertaining to the collection of tax payments by the cashiers, which contributed to the failure of Rivera-Saez to execute her supervisory duties appropriately. Soon after she was terminated from her employment, the plaintiff instituted new written policies for the department. Because the overall operation of the department was lax and unsecure during her employment, the plaintiff was partially responsible for the situation.

The trial court, rather than focusing on those factual findings, relied on the dissenting member’s conclusions. Quoting from the dissenting opinion, the court determined that Rivera-Saez “played a pivotal role in the theft of public funds” and had “a starring role in the scheme to steal from [the plaintiff] by swapping out cash for unrecorded checks . . . .” The court agreed with the dissenting member and improperly substituted its factual findings for those of the arbitrators.

Having considered the arbitrators’ factual findings in our de novo review of the award to determine whether it violates public policy, we cannot conclude that reinstating Rivera-Saez to her former position, without back pay and benefits, would violate public policy. Even though the arbitrators found her grossly negligent, they also found that the plaintiffs lack of written policies and procedures had contributed to the problem and, furthermore, that the plaintiff had only mildly disciplined the cashier ultimately responsible for the reconciliation records on those occasions when the substitution of unrecorded checks for cash occurred. Moreover, as part of the award, the arbitrators provided that Rivera-Saez was to be trained in the department’s current practices and procedures, presumably to prevent a reoccurrence of the previous problems. The noncriminal misconduct at issue in this case did not rise to the level of “apparent and egregious misconduct on the part of the employee” that has resulted in the proper vacating of arbitral awards by courts in other cases. See Metropolitan District Commission v. Local 184, Council 4, AFSCME, AFL-CIO, 77 Conn. App. 832, 845, 825 A.2d 218 (2003). For the foregoing reasons, we conclude that the court improperly vacated the arbitration award on the ground that it violated public policy.

The judgment is reversed and the case is remanded with direction to deny the plaintiffs application to vacate the arbitration award and to grant the defendant’s application to confirm the arbitration award.

In this opinion the other judges concurred.

       Rivera-Saez was not charged with theft or any other crime in connection with these incidents.

       Both parties represented that the arbitration in the present case was consensual.

       “A submission is unrestricted when . . . the parties’ arbitration agreement contains no language restricting the breadth of issues, reserving explicit rights, or conditioning the award on court review.” (Internal quotation marks omitted.) Industrial Risk Insurers v. Hartford Steam Boiler Inspection & Ins. Co., 273 Conn. 86, 89 n.3, 868 A.2d 47 (2005).
      In its appellate brief, the defendant represented that the parties granted authority to the arbitration panel under an unrestricted submission. The plaintiff has not disputed that the submission was unrestricted.

         The plaintiff conceded in its appellate brief that “there is no specific statute [that] identifies this important public policy . . . .”

       The plaintiff cites George v. Watertown, 85 Conn. App. 606, 611, 858 A.2d 800, cert. denied, 272 Conn. 911, 863 A.2d 702 (2004), for its position that the public trust is a strong public policy. That case involved a collateral attack on a previously unchallenged condition attached to the approval of a subdivision application by a zoning authority. Its applicability to the present case is not apparent.

       Although the plaintiff emphasizes that the panel found Rivera-Saez to be grossly negligent in the performance of her duties, as opposed to being merely negligent, a finding of gross negligence does not automatically warrant the vacating of an award reinstating a grievant to a former position. Even criminal misconduct does not automatically warrant such a result. As determined by our Supreme Court, “there is no public policy against the reemployment or continuation of employment of those who have committed criminal misconduct, and indeed we expressly have declined to hold that an arbitral award mandating the return to work of one who has acted criminally is a per se violation of public policy.” AFSCME, Council 4, Local 1565 v. Dept. of Correction, supra, 298 Conn. 846 n.11.


author: PER CURIAM.

text:
    STATE OF CONNECTICUT v. IAN T. COOKE
    (AC 33824)
    Beach, Robinson and Alvord, Js.
    Argued January 13
    officially released April 3, 2012

      Robert E. Byron, special public defender, for the appellant (defendant).

      Lawrence J. Tytla, supervisory assistant state’s attorney, with whom, on the brief, were Michael L. Regan, state’s attorney, and Christa Baker, assistant state’s attorney, for the appellee (state).
   Opinion

PER CURIAM.

The defendant, Ian T. Cooke, appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a-54a, capital felony murder in violation of General Statutes § 53a-54b (7) and possession of a sawed-off shotgun in violation of General Statutes § 53a-211 (a). On appeal, the defendant claims that the trial court erred by denying his motion to preclude a DNA report offered by the state and by ruling that, because of the limited availability of the state’s expert, cross-examination of that expert would take place two days after direct examination, rather than three business days, as the defendant had requested. We affirm the judgment of the trial court.

The following facts, which the jury reasonably could have found, and procedural history are relevant. Sometime after 3 p.m. on May 27, 2006, the town of Groton dispatch center received a 911 call from 1021 Pleasant Valley Road reporting that one Gregory Giesing had been shot at his residence. Police officers, including Officer Sean Griffin, arrived at the scene, and Gregory Giesing’s wife, Laurel Giesing, reported that she had observed in her driveway after she had found her husband shot a “dark, silver grayish” Jeep with thick piping on the front. After going through the residence to ensure that it was safe, Griffin went to the lower unit of the residence and found Derek Von Winkle, Gregory Gies-ing’s stepbrother, who also had been shot. Shortly thereafter, fire and medical personnel arrived.

One of the responders from the fire department informed Griffin that there had been a stabbing at the LaTriumphe Apartments, which was near the Giesings’ residence. The police, including Griffin, responded to that location, entered an apartment through an open sliding door and found on the living room floor the defendant, whose hand and cheek were injured. The police spoke with the defendant’s father, who had called 911 and had told the dispatcher that his son may have been stabbed by a drug dealer or drug dealers. Based upon the conversation between the police and the defendant’s father, Griffin then went outside to the parking lot to look for the Jeep that Laurel Giesing had described. Griffin located a silver gray Jeep with a “brush guard,” and observed blood on the exterior driver’s side and on the driver’s side interior compartment of the vehicle. Laurel Giesing was later shown the vehicle and, after examining it, stated that it looked “very similar” to and “the same” as the vehicle she saw at her residence after her husband had been shot. Additionally, a search of the general outside area, including a wooded area, around the defendant’s apartment revealed apparently bloodstained duffle bags containing illegal drugs and a disassembled shotgun.

An associate medical examiner for the state determined that Gregory Giesing died of a gunshot wound to the chest. The medical examiner concluded that Yon Winkle died of a shotgun wound to the neck and chest. The defendant was charged in a four count substitute information with the murder of Von Winkle by use of a shotgun in violation of § 53a-54a, the murder of Gregory Giesing by use of a shotgun in violation of § 53a-54a, capital felony for the murders of Von Winkle and Gregory Giesing at the same time and in the course of a single transaction in violation of § 53a-54b (7), and possession of a sawed-off shotgun in violation of § 53a-211 (a).

Several items of evidence, including three known samples of DNA from Von Winkle, Gregory Giesing and the defendant, were submitted to the state forensic science laboratory for DNA analysis. Nicholas Yang, a forensic science examiner, performed the tests. At trial, he testified as to his findings. Yang determined that the defendant’s DNA was consistent with that found on the exterior of a duffle bag found outside the defendant’s apartment complex, the doorknob to Von Winkle’s apartment, multiple locations on pants retrieved from Gregory Giesing’s body, the wooden deck area of Gregory Giesing’s residence, a part of the floor mat of the Jeep and on various parts of the disassembled shotgun. The defendant could not be eliminated as a source of DNA on the zipper of a Dudley bag, a reddish-brown stain on a knife found near Gregory Giesing’s body, a blood-like substance taken from the interior door of Gregory Giesing’s apartment, the steering wheel of the Jeep, a hacksaw from the apartment in which the defendant was found, two swabs from the floor mat of the Jeep and the brake pedal from the Jeep. Other evidence not pertinent to the issue on appeal also was introduced.

The defendant was found guilty on all four counts at the conclusion of a jury trial. The court then sentenced the defendant to a total effective term of life imprisonment without the possibility of release. This appeal followed.

The defendant claims that the court erred by denying his motion to preclude the state’s DNA report of April 5, 2010, and by granting a shorter continuance than he requested for the cross-examination of Yang. We do not agree.

The DNA section of the state forensic science laboratory issued two reports in the present case. The first was dated September 22, 2006 (first report), and reported test procedures and results regarding twenty-three items of evidence gathered by the police, as well as known blood samples from Von Winkle, Gregory Giesing and the defendant. A supplemental report was dated April 5, 2010 (supplemental report), and reported results regarding an additional nine pieces of evidence. The first report was received and disclosed well before trial, and there is no issue regarding that report. The supplemental report was disclosed on April 6, 2010, the first day of evidence at trial. On April 9, 2010, pursuant to Practice Book § 40-5 (4), the defendant moved to preclude the supplemental report. In his motion, the defendant stated that he had received the supplemental report late and argued that the late disclosure jeopardized his rights to due process and a fair trial. Alternatively, the defendant requested additional time prior to Yang’s testimony to examine the supplemental report. Applying principles analogous to those found in Practice Book § 40-5, which governs failure to comply with disclosure, the court denied the motion to preclude, but, pursuant to Practice Book § 40-5 (2), granted the defendant additional time to examine the supplemental report. The court ruled on Wednesday, April 14, 2010, that direct examination of Yang would proceed as scheduled on that same day, and cross-examination of Yang would proceed on Monday, April 19, 2010, subject to Yang’s availability. The state informed the court that Yang was not available the week of April 19, and, accordingly, the corut ruled that cross-examination would take place on Friday, April 16,2010. Cross-examination did take place on April 16, and there was no claim at that point that the defendant had been unable properly to prepare.

“Practice Book § 40-5 gives broad discretion to the trial judge to fashion an appropriate remedy for noncompliance with discovery. . . . Generally, [t]he primary purpose of a sanction for violation of a discovery order is to ensure that the defendant’s rights are protected, not to exact punishment on the state for its allegedly improper conduct. As we have indicated, the formulation of an appropriate sanction is a matter within the sound discretion of the trial court. ... In determining what sanction is appropriate for failure to comply with court ordered discovery, the trial court should consider the reason why disclosure was not made, the extent of prejudice, if any, to the opposing party, the feasibility of rectifying that prejudice by a continuance, and any other relevant circumstances.” (Internal quotation marks omitted.) State v. Hamlett, 105 Conn. App. 862, 873, 939 A.2d 1256, cert. denied, 287 Conn. 901, 947 A.2d 343 (2008). “Suppression of relevant, material and otherwise admissible evidence is a severe sanction which should not be invoked lightly.” (Internal quotation marks omitted.) State v. Respass, 256 Conn. 164, 186, 770 A.2d 471, cert. denied, 534 U.S. 1002, 122 S. Ct. 478, 151 L. Ed. 2d 392 (2001). “As with any discretionary action of the trial court, appellate review requires every reasonable presumption in favor of the action, and the ultimate issue for us is whether the trial court could have reasonably concluded as it did.” (Internal quotation marks omitted.) Smart v. Corbitt, 126 Conn. App. 788, 796, 14 A.3d 368, cert. denied, 301 Conn. 907, 19 A.3d 177 (2011).

The court did not abuse its discretion by denying the motion to preclude the supplemental report and by granting the defendant two days additional time before cross-examination of Yang. The court found that there was no intentional conduct by the state to delay disclosure of the supplemental report and appropriately noted that suppression of admissible evidence is a severe sanction. Defense counsel stated that he had received the supplemental report on April 6, 2010, the day after it was created and the first day of evidence in the case, and he had been given additional documentation about the supplemental report on April 7, 2010. He had been advised by the state on February 26, 2010, that supplemental testing of the items would occur.

Granting a continuance for the defendant’s expert to review the supplemental report was reasonable under the circumstances and served to alleviate any prejudice that the defendant may have suffered. The defendant did not object to the first report, which was prepared by the same laboratory and by the same forensic examiner, and the supplemental report used the same results of the three known blood samples as the first report. The defendant had approximately three and one-half years to review the first report and to consult with his expert. Defense counsel also stated to the court that he had consented to the additional testing of the items, that he had “encourage[d] that to happen” and that he had “[wanted] them tested . . . .” Additionally, in allowing the examination to proceed, the court noted that “[i]t is speculative at best that . . . Yang will testify to anything other than what would be expected with respect to this type of material.” On Friday, the day on which the court ultimately scheduled cross-examination, the defendant did not object on the basis of a lack of time or ability to have his expert review the supplemental report, and the court explicitly asked both parties’ counsel whether they wanted to be heard on any matter, to which both replied in the negative. Further, the defendant was able to raise and did raise challenges to the credibility of the DNA results during his cross-examination. Finally, the defendant discussed at great length in his appellate brief generic issues about the reliability of DNA evidence. This discussion is inapposite because any generic unreliability is not an issue in this appeal, and the trial court does not appear to have made any rulings on that issue. Further, any objection that could have been raised to the supplemental report on the ground of generic unreliability also would have applied to the first report, to which the defendant did not object, and which he had had for years. Under these circumstances, the court did not abuse its discretion by denying the defendant’s motion to preclude the supplemental report and by granting a continuance of two days for the cross-examination of Yang.

The judgment is affirmed.

       “DNA is the abbreviation for deoxyribonucleic acid.” State v. Morales, 232 Conn. 707, 713 n.8, 657 A.2d 585, aff'd after remand, 39 Conn. App. 617, 667 A.2d 68, cert. denied, 235 Conn. 938, 668 A.2d 376 (1995).

       Yang testified in effect that, in this context, the term “consistent with” meant that the two samples were likely to have come from the same person to a very high degree of probability.

       Practice Book § 40-5 provides in relevant part: “If a party fails to comply with disclosure as required under these rules, the opposing party may move the judicial authority for an appropriate order. The judicial authority hearing such a motion may enter such orders and time limitations as it deems appropriate, including, without limitation, one or more of the following: . . .
      “(4) Prohibiting the noncomplying party from introducing specified evidence . . .

       The court did not explicitly find a failure to comply with the discovery procedure. The court specifically referred to Practice Book § 40-5, however, and the court exercised its discretion as guided by that section.

       Practice Book § 40-5 (2) provides that the court may “[grant] the moving party additional time or a continuance” for failure to comply with disclosure.

       Copies of the reports were reproduced in the appendix to the state’s brief and in the record. They are formatted identically and appear to report the same procedures used for analysis.