author: SPEAR, J.

text:
    INTERNATIONAL MARINE HOLDINGS, INC. v. MICHAEL F. STAUFF ET AL.
    (15365)
    Dupont, C. J., and Landau and Spear, Js.

      Argued January 14
    officially released April 8, 1997

      James M. Hall, Jr., with whom were Charles R. Andres and, on the brief, Jacqueline D. Bucar and Daniel R. Wamcke, for the appellant (plaintiff).

      George P. Bimbaum, for the appellee (named defendant).
   SPEAR, J.

The plaintiff, International Marine Holdings, Inc., appeals from the judgment of the trial court confirming an arbitration award in favor of the defendant Michael Stauff. This dispute arose out of the plaintiffs termination of the defendant’s employment as chief financial officer. The plaintiff claims that the trial court improperly (1) found that an arbitration clause in the employment agreement between the parties provides for the arbitrators to decide the issue of arbitrability, (2) concluded that the plaintiffs claims that the defendant breached his fiduciary duties as an officer and director were matters that arose out of the employment agreement and were thus arbitrable, and (3) con-eluded that the defendant’s claims were arbitrable despite the plaintiffs claim that a termination for cause is excepted from the arbitration clause. We affirm the judgment of the trial court.

The record discloses the following facts and procedural history. The defendant was the plaintiff’s vice president of finance and chief financial officer. On January 1,1992, the parties entered into an amended employment contract. The contract contained an arbitration clause, which provides in pertinent part: “Any controversy or claim arising out of or relating to this Agreement, or any breach thereof, shall, except as provided in Section 10, be settled by arbitration . . ."

On April 29,1994, the plaintiff terminated the defendant’s employment. On May 5, 1994, pursuant to his employment contract, the defendant filed a demand for arbitration with the American Arbitration Association. On May 23, 1994, the plaintiff filed an action in the trial court seeking to enjoin the arbitration. In addition, the plaintiff sought damages for the defendant’s alleged breaches of fiduciary duties as an officer and director. The trial court stayed the action to allow the panel of arbitrators to determine the question of arbitrability. The panel then granted the plaintiffs request for a preliminary hearing concerning jurisdiction. After reviewing the briefs and arguments, the panel determined that the issues before it were arbitrable. After a lengthy arbitration, the panel awarded the defendant his full severance pay, attorney’s fees and arbitration fees. The arbitrators dismissed all of the plaintiffs claims against the defendant.

On May 24, 1995, the defendant moved to confirm the arbitration award and the plaintiff filed a motion to vacate the award. The trial court granted the defendant’s motion to confirm and denied the plaintiffs motion to vacate. This appeal followed.

I

The plaintiff claims that the trial court improperly referred the issue of arbitrability to the arbitrators because the arbitration clause was not broad enough to encompass that issue. We disagree.

Whether a particular dispute is arbitrable is typically a question for the court. Welch Group, Inc. v. Creative Drywall, Inc., 215 Conn. 464, 467, 576 A.2d 153 (1990). “ ‘It is well established [however] that arbitration is a matter of contract and that parties may agree to have questions concerning the arbitrability of their disputes decided by a separate arbitrator.’ ” Combustion Engineering, Inc. v. International Brotherhood of Boilermakers, 15 Conn. App. 332, 333, 544 A.2d 256 (1988). “In apportioning, between the court and the arbitrators, the responsibility for determining which disputes are arbitrable, the language of the contract controls and determines whether the arbitrability of a dispute is for the court or the arbitrators.” Emcon Corp. v. Pegnataro, 212 Conn. 587, 592, 562 A.2d 521 (1989). “The intention to have arbitrability determined by an arbitrator can be manifested by an express provision or through the use of broad terms to describe the scope of arbitration, such as all questions in dispute and all claims arising out of the contract or any dispute that cannot be adjudicated.” (Internal quotation marks omitted.) Welch Group, Inc. v. Creative Drywall, Inc., supra, 467; see also Board of Education v. Frey, 174 Conn. 578, 581, 392 A.2d 466 (1978). The arbitration clause at issue here is a broad one: “Any controversy or claim arising out of or relating to this Agreement, or any breach thereof, shall, except as provided in Section 10, be settled by arbitration . . . .” (Emphasis added.)

Despite the broad language of the arbitration clause, the plaintiff asserts that the exclusionary language of the arbitration clause “makes it clear that not all claims arising under the Employment Agreement were to be arbitrated.” In Combustion Engineering, Inc. v. International Brotherhood of Boilermakers, supra, 15 Conn. App. 335, this court rejected a similar claim. The parties’ agreement provided a broad arbitration clause that contained limited exclusionary language. This court held that in light of the entire arbitration clause, “the question of arbitrability [did not fall] within the ambit of that exclusionary language so as to preclude the arbitrator from deciding questions of arbitrability.” Id. In this case, neither party claims that this dispute falls within § 10 of the agreement. The plaintiff concedes that the exclusionary language does not explicitly exclude arbitrability from the scope of the arbitrators’ authority. Furthermore, the exclusionary language included in the arbitration clause refers only to the plaintiffs ability to seek equitable relief for breaches of the agreement concerning confidential information, intellectual property or interfering with the company. We conclude that the arbitration clause was broadly drafted to include the issue of arbitrability and the exclusionary language does not preclude the arbitrators from deciding questions of arbitrability.

II

The plaintiff also asserts that this dispute was not arbitrable because in its complaint, the plaintiff alleged that the defendant breached his fiduciary duties as an officer and director. The plaintiff maintains that because the employment agreement relates only to the defendant’s role as an employee, the parties did not agree to arbitrate a dispute involving the defendant’s role as a director, and, as such, the dispute is not governed by the arbitration clause contained in the employment agreement. This claim is without merit.

In paragraphs one through fifteen of its complaint, the plaintiff recited various factual allegations. In these paragraphs, the plaintiff makes no reference to the defendant’s position as a director. In the third count, the plaintiff incorporated paragraphs one through fifteen, and alleged the conclusion that “[a]s an officer and director of [the plaintiff, the defendant] owed a duty of loyalty and faithfulness to [the plaintiff]. The foregoing acts [paragraphs one through fifteen] on [the defendant’s] part constitute a breach of his fiduciary duties to [the plaintiff] . . . .” (Emphasis added.)

The plaintiff has failed to differentiate its allegations and evidence concerning the defendant’s role as an employee from his roles as an officer and director. To accept the plaintiff’s contention would be to eviscerate the arbitration clause. By alleging that all of the acts were done by the defendant in his multiple capacity as an employee, officer and director, the plaintiff would effectively insulate all of the claims from arbitration. All of the plaintiffs factual allegations, even if true, could have been performed by the defendant in his capacity as an employee. After a careful review of the pleadings, transcripts and motions, we conclude that the allegations comprising the plaintiffs claim arise out of or relate to the employment agreement.

Ill

The plaintiff finally claims that this dispute was not arbitrable because of the express terms of the employment agreement contained in § 6.3. We disagree.

Section 6.3 of the employment agreement provides specific rights, obligations and procedures to be followed in the event of a termination for cause. The plaintiff asserts that the defendant was terminated for cause, and that, pursuant to the employment agreement, the right to arbitrate did not survive a termination for cause. The plaintiff bases its claim on the following language contained in § 6.3: “Neither the executive nor the company shall have any further rights or obligations under this Agreement except as provided in Sections 7, 8, 9, 10 and 17.” The plaintiff asserts that the only rights and obligations that survive a termination for cause are the plaintiffs ability to obtain equitable relief for breaches of the contract provisions concerning confidential information (§ 7), intellectual property (§ 8), interfering with the company (§ 9), and the defendant’s rights to an advance of defense expenses (§ 17).

First, we note the broad nature of the arbitration clause as discussed in part I of this opinion. The arbitration clause does not expressly exclude § 6.3 from arbitration, leading us to conclude that the parties intended that disputes arising out of that section are arbitrable.

Furthermore, § 6.3 does not address the question of remedies for the defendant in the event of a breach of § 6.3 by the plaintiff, except for the § 17 provision for an advance of counsel fees in certain situations. Even if the defendant were entitled to counsel fees pursuant to § 17, such a limited remedy would be meaningless if we accept the plaintiffs interpretation of § 6.3. The defendant, after retaining counsel, could not force an arbitration of his challenge to his dismissal for cause and, a fortiori, could not pursue an action in court.

The construction of § 6.3 advocated by the plaintiff would mean that the plaintiff could preclude the defendant from any effective remedy by labelling a termination as one “for cause.” The defendant could neither challenge the alleged causes for termination nor any claimed failure of the plaintiff to hold the required meeting within fifteen days of the receipt of notice of termination or grant the fifteen day cure period. This would be a bizarre result considering that, although the plaintiff may terminate the defendant’s employment at any time without cause, a termination without cause obligates the plaintiff to pay the defendant three times his base annual salary, plus other benefits. If the defendant is terminated for cause, he is entitled to be paid only to the date of termination. Thus, the plaintiffs interpretation would leave the defendant virtually without a remedy in the circumstances where he most needed one. “Parties to a contract may agree on the remedies available in the event of a breach of contract. If the language of the agreement discloses that the parties intended to limit the remedies to those stated, the agreement will be enforced and the party will be limited to the exclusive remedies outlined in the agreement. ... A contract will not be construed to limit remedial rights unless there is a clear intention that the enumerated remedies are exclusive. ...” (Citations omitted.) Shawmut Bank Connecticut, N.A. v. Connecticut Limousine Service, Inc., 40 Conn. App. 268, 277, 670 A.2d 880, cert. denied, 236 Conn. 915, 673 A.2d 1143 (1996). Considering the broad nature of the arbitration clause and the bizarre result required by the plaintiffs interpretation of § 6.3, we conclude that there was no such intention to limit the defendant to the remedy of an advance of attorney’s fees.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaint iff named Michael Stauff and the American Arbitration Association as defendants in its original complaint. In this opinion we refer to Stauff as the defendant.

       The arbitration clause in the employment contract provides: “Any controversy or claim arising out of or relating to this Agreement, or any breach thereof, shall, except as provided in Section 10, be settled by arbitration in accordance with the rules of the American Arbitration Association then in effect and judgment upon such award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The arbitration shall be held in Fairfield County, Connecticut. The arbitration award shall include attorneys’ fees and costs to the prevailing party.”
      Section 10 of the employment contract provides: “Equitable Relief. In the event of a breach or threatened breach by the Executive of any of the provisions of Sections 7 [Confidential Information], 8 [Intellectual Property] or 9 [Interference with the Company] of this Agreement, the Executive hereby consents and agrees that the Company shall be entitled to an injunction or similar equitable relief from any court of competent jurisdiction restraining the Executive from committing or continuing any such breach or threatened breach or granting specific performance of any act required to be performed by the Executive under any of such provisions, without the necessity of showing any actual damage or that money damages would not afford an adequate remedy and without the necessity of posting any bond or other security. Nothing herein shall be construed as prohibiting the Company from pursuing any other remedies at law or in equity which it may have.”
      Section 7 of the employment contract provides in pertinent part: “Confidential Information.
      “7.1 The Executive shall, during the Executive’s employment with the Company and thereafter, treat all confidential material confidentially and, except in accordance with the terms of this Agreement, shall not, without the prior written consent of a majority of the Board of Directors of the Company, disclose such material, directly or indirectly, to any party not at the time of such disclosure an employee or agent of the Company. ...”
      Section 8 of the employment contract provides in pertinent part: “Intellectual Property. Any and all inventions made, developed or created by the Executive (whether at the request or suggestion of the Company or otherwise, whether alone or in conjunction with others, and whether during regular hours of work or otherwise) during the term of his Agreement which may be directly or indirectly useful in, or relate to, the business of or tests being carried out by the Company, shall be promptly and fully disclosed by the Executive to the Board of Directors of the Company and shall be the Company’s exclusive property as against tire Executive. . .
      Section 9 of the employment contract provides in pertinent part: “Interference with the Company. The Executive acknowledges that the services to be rendered by him to the Company are of a special and unique character. The Executive agrees that, in consideration of his employment hereunder, the Executive will not . . . (i) solicit or entice or endeavor to solicit or entice away from the Company any employee of the Company ... or (ii) solicit or entice or endeavor to solicit or entice away from the Company any present customer ... or (b) at any time, take any action or make any statement the effect of which would be, directly or indirectly, to impair the good will of the Company or the business reputation or good name of the Company, or be otherwise detrimental to the interests of the Company

       Neither party claims that § 10 is applicable to this dispute.

      ‘That, clause provided: “It is specifically agreed that in the event any dispute arises out of the interpretation or application of this agreement, excluding questions of jurisdiction of work, the same shall be settled by means of the procedure set out herein.”

       The complaint states in pertinent part: “Plaintiff INTERNATIONAL MARINE HOLDINGS, INC. (‘IMH’) for its Complaint against MICHAEL F. STAUFF (‘Stauff) and the American Arbitration Association (‘AAA’), states as follows:
      “1. IMH is a corporation organized and existing under the laws of the State of Delaware with its principal place of business in Guilford, Connecticut It is holding company with numerous subsidiaries engaged in the marine accessories business including marine electronics, galley equipment, spars, rigging, and deck hardware.
      “2. Stauff was at all times mentioned herein a resident of Monroe, Connecticut and, as set forth below, Stauff has functioned as IMH’s Vice President of Finance and Chief Financial Officer.
      “3. AAA is a not-for-profit corporation organized to provide dispute resolution services and has offices in East Hartford, Connecticut.
      “4. IMH is a privately held company whose principal shareholder (holding in excess of 90% of the shares) at all times referred to was IFEM, S.p.A. (‘IFEM’), a corporation organized and existing under the laws of Italy whose principal place of business is in Milano, Italy. IFEM is a wholly owned a subsidiary of ISVIM, S.p.A. which, in turn, is a subsidiary of Ferruzzi Finanziaria S.p.A. (‘Ferruzzi’). The remaining shares if IMH were owned by a number of individuals including Defendant Stauff.
      “5. Pursuant to an Amended and Restated Employment Agreement dated as of the first day of January, 1992 (hereinafter the ‘Employment Agreement’), Stauff was employed by IMH as its Vice President of Finance and Chief Financial Officer. Under that Employment Agreement, Stauff was to perform faithfully and diligently such duties and responsibilities appropriate to his position.
      “6. In willful gross neglect of Ms obligations under the Employment Agreement, and in willful gross misconduct Stauff repeatedly and consistently failed to fulfill Ms duties and responsibilities in numerous respects including but not limited to the following:
      “a. Stauff failed to maintain IMH’s financial statements and records in a manner consistent with generally accepted accounting practices but, to the contrary, authorized and approved substantial deviations from those practices;

        “b. Stauff authorized or permitted the commingling of Company funds with officers’ funds;
      “c. Stauff authorized or permitted the expenditure of Company funds for legal and other services rendered to officers of IMH in their individual capacities, and Stauff permitted the use of corporate assets to defray the cost of a Searav boat titled in the name of John E. D. Grunow, Jr. (‘Grunow’), IMH’s then Chief Executive Officer;
      “d. Stauff authorized numerous foreign currency exchanges for no apparent business purpose but at increased cost and losses to IMH;
      “e. Stauff authorized international payments and transfers of funds overseas, including fund transfers to Swiss bank accounts, without necessary documentation of the business purpose for such payments and transfers or the ultimate disposition of such funds;
      “f. Stauff failed to implement and maintain reasonable accounting controls with respect to the submission and approval of expenses charged to and paid by IMH. As a consequence, IMH: reimbursed officers and employees of the Company for travel and entertainment expenses without presentation of proper accounts; paid excessive legal fees which were tendered without substantiation and which, in whole or in part, were charged to incorrect Company accounts; and, paid credit card and other bills submitted to the Company without proper documentation of their business purpose;
      “g. Stauff authorized or permitted the hiring of and payments to various consultants including investment and accounting counselors without justification and at substantial expense to IMH;
      “h. Stauff authorized or permitted payments of compensation to individuals for which no services were provided to IMH;
      “i. Stauff authorized or permitted IMH to malee prepayments for services contrary to IMH’s business interests;
      “j. Stauff failed and refused to provide financial and other information to IMH’s Board of Directors and majority shareholder despite reasonable requests therefor; and
      “k. Stauff refused to provide IMH’s auditor, Arthur Anderson & Co., information essential to its auditing function upon request and otherwise attempted to interfere with the proper performance of Arthur Anderson’s audit.
      “7. Further, since the summer of 1992, Stauff, individually and in cooperation with others including Grunow, pursued a scheme to reduce the value of IMII and facilitate an attempt to seize ownership and control of IMH and its subsidiaries.
      '‘8. In furtherance of this scheme, Stauff, individually and in cooperation with Grunow and others, engaged in the following acts:
      “a. In 1993, without the knowledge or consent of IMH’s majority shareholder or its Board of Directors, established Eumenes Corporation as a wholly-owned subsidiary of IMH. Organizing Eumenes Corporation was contrary to the express direction of IMH’s Board and majority shareholder and further was in violation of its Certificate of Incorporation and IMH’s Bylaws;
      “b. Having so established Eumenes without the knowledge of IMH’s Board or its majority shareholder, transferred real and intangible assets of IMH or its subsidiaries to Eumenes;
      “c. Reduced the value of such assets for financial statement purposes, in order to, on information and belief, sell such assets to other entities or otherwise convert such assets;
      “d. Sought to take control of IMH’s successful subsidiary Lewmar, through a scheme of reducing the book value of Lewmar’s assets, discharging Lewmar executives Huggett and Blackwood, and investigating the transfer of Lew-mar’s trademark rights to another party, contrary to IMH’s By-Laws.
      “9. This scheme to take control of IMH and Lewmar culminated in a proposed ‘management buy-out’ of IMH using financing from the New York investment group Three Cities Research, Inc. (‘Three Cities’). Stauff, having authorized and permitted the devaluation of certain assets of IMH and having deliberately misrepresented IMH’s financial condition and fair market value to its majority shareholder, in cooperation with Grunow and others proposed to buy all of the interest of Ferruzzi and its subsidiaries in IMH for substantially less than its true market value, which amount was also substantially less than the sums Ferruzzi and its subsidiaries had invested in and loaned to IMH.
      “10. On January 24, 1994 an Agreement in Principle was signed by IMH Holdings, Inc. (a company formed and to be owned by Stauff, Grunow, and others), Three Cities, and Ferruzzi; Ferruzzi entered into the Agreement in Principle in reliance upon Defendant’s representations concerning the market value and financial condition of IMH. Under the Agreement, IMH Holdings and Three Cities were to purchase IMH by March 31, 1994.
      “11. Defendants’ efforts to purchase IMH and capitalize on the scheme to devalue and taire control of the company was thwarted when Three Cities determined in their review of IMH that Stauff, Grunow and others had deliberately misrepresented the financial status of IMH and had mismanaged business operations of the company. Accordingly, Three Cities announced that it would not go forward with the Agreement in Principle.
      “12. The foregoing acts and omissions of Stauff constitute willful, gross neglect, willful, gross misconduct and other grounds for IMH to terminate Stauffs employment for cause. On April 29, 1994 IMH’s Board, through its Chairman Allesandro Bonetti, gave Stauff notice of the termination of his employment with IMH for cause.
      “13. Subsequently, on or about May 5, 1994, Stauff filed a Demand for Arbitration with the American Arbitration Association requesting the arbitration of Stauffs termination of employment with IMH.

        “14. The Employment Agreement between IMH and Stauff does not provide for arbitration regarding a termination for cause as that term is defined under the Employment Agreement, and thus, the parties to the Employment Agreement did not agree to arbitrate a claim or dispute concerning IMII’s termination of Stauff under the circumstances of this case.
      “15. The AAA has acknowledged receipt of Stauff s Demand for Arbitration and has given instructions to Stauff and IMH on how to proceed under AAA rules.”

       Section 6.3 of the employment agreement provides: “The employment of the Executive hereunder may be terminated by the Company at any time for Cause (as hereinafter defined). In the event of such termination, the Company shall pay to the Executive the base salary provided for in Section 3 (at the annual rate then in effect) accrued to the date of such termination and not theretofore paid to the Executive and the bonus provided in Section 3.4 prorated through the date of such termination. Rights and benefits of the Executive under the benefit plans and programs of the Company shall be determined in accordance with the provisions of such plans and programs. For purposes hereof, ‘Cause’ shall include (a) willful gross neglect or willful, gross misconduct in the Executive’s discharge of his duties and responsibilities under this Agreement, or (b) the Executive’s commission of (i) a felony or (ii) any crime or offense involving moral turpitude; provided, however, that the Executive shall be given written notice by a majority of the Board of Directors of the Company that it intends to terminate the Executive’s employment for Cause which written notice shall specify the act or acts upon the basis of which the majority of the Board of Directors of the Company intends so to terminate the Executive’s employment, and the Executive shall then be given the opportunity, within fifteen (15) days of his receipt of such notice, to have a meeting with the Board of Directors of the Company to discuss such act or acts. If the basis of such written notice is other than an act or acts described in subsection (b), the Executive shall be given fifteen (15) days after such meeting within which to cease or correct the performance (or nonperformance) giving rise to such written notice and, upon failure of the Executive within such fifteen (15) days to cease or correct such performance (or nonperformance), the Executive’s employment by the Company shall automatically be terminated hereunder for Cause. Neither the Executive nor the Company shall have any further rights or obligations under this Agreement, except as provided in Sections 7, 8, 9, 10 and 17.

       Section 6.4 of the employment, agreement provides: “Other Termination by the Company. Subject to Section 13, the Company may terminate the Executive's employment at, any time for whatever reason it deems appropriate.”
      Section 13 of the employment agreement provides in pertinent part: “Severence Arrangements. . . . (c) If a Termination Event shall occur, the Company shall pay to the Executive, within thirty (30) days of tire date of such Termination Event, a lump sum amount in cash (the ‘Termination Payment.’) equal to three (3) times the Executive’s base annual salary, payable to the Executive pursuant to Sections 3.1, 3.2 and 3.3 on the date of the act or action which gives rise to the Termination Payment. If a Termination Event shall occur, the Executive shall be under no obligation to seek subsequent employment and upon obtaining subsequent employment shall be under no obligation to offset any amounts earned from such subsequent employment (whether as an employee, a consultant or otherwise) against such Termination Payment. The Company shall continue to provide to the Executive and his family the life, hospitalization, surgical, mqjor medical and dental insurance benefits . . . for a three (3) year period following the Termination Event. In addition, rights and benefits of the Executive under the other benefit plans and programs of the Company shall be determined in accordance with the provisions of such plans and programs. Neither the Executive nor the Company shall have any further rights or obligations under this Agreement, except as provided in Section 7, 8, 9, 10, and 17.”


source: Caselaw Access Project

author: FOTI, J.

license: Public Domain

text:
    JUDITH MURPHY v. PETER YOUNG ET AL.
    (15565)
    O’Connell, FoU and Landau, Js.
    Argued January 24
    officially released April 8, 1997

      Kimball Haines Hunt, for the appellant (plaintiff).

      Michael P. McKeon, for the appellees (defendants).
   FOTI, J.

The plaintiff appeals from the judgment dismissing her complaint. She claims that the trial court improperly determined, as a matter of law, that she had failed to exhaust her administrative remedies. We affirm the judgment of the trial court.

The following facts found by the trial court are relevant to this appeal. The defendant Area Cooperative Educational Services (ACES) hired the plaintiff in 1985 as a certified school psychologist. The plaintiff worked in that capacity and became tenured. In June, 1993, the named defendant, Peter Young, the executive director of ACES, notified the plaintiff that her position was to be eliminated. On July 8, 1993, the ACES governing board (board) voted to terminate her services and, thereafter, the plaintiff was notified that her contract was not being renewed for the 1993-94 school year.

The plaintiffs employment was governed by the board, subject to the provisions of General Statutes § 10-151 and a collective bargaining agreement dated June 11, 1991, that prescribed the procedures that the board was to utilize to dismiss certified staff members.

Prior to her termination on July 8, 1993, the plaintiff, on May 17,1993, notified Young of her need to undergo surgery for breast cancer. On May 20,1993, Young gave the plaintiff notice of his intention to have the board terminate her employment based on an alleged decline in enrollment, budget modifications, and staff reductions that resulted in the need to eliminate her position. On May 27, 1993, however, Young formally advised the plaintiff by letter that if the board did terminate her contract, her seniority would make her eligible to displace a junior staff member. In response to this notice, on or about June 4, 1993, the plaintiff notified ACES in writing of her intention to displace a junior staff member on the basis of her seniority. On June 15,1993, Young formally notified her that the board would convene on July 8, 1993, to consider termination of her contract. On June 21,1993, Young notified the plaintiff that he had overridden her seniority. On July 2, 1993, the plaintiff requested in writing that ACES set forth in writing reasons for the override. She was terminated six days later with no written explanation for the override of her seniority.* *

The plaintiff commenced this action by a four count complaint, alleging that her termination constituted a breach of her collective bargaining agreement, violated General Statutes § 10-151, violated Connecticut’s Fair Employment Practices Act, General Statutes §§ 46a-58 (a) and 46a-60 (a), and constituted a tortious breach of the collective bargaining agreement. The defendant has failed to brief any claims relative to the third count of her complaint alleging that her termination “was a pretext to mask discrimination against a physically disabled person in violation of [General Statutes] Section 46a-58 (a) and Section 46a-60 (a) (1).” The plaintiff acknowledged during oral argument that she is making no claim on appeal regarding this count.

In their motion to dismiss, the defendants alleged that the plaintiff had failed to pursue, much less exhaust, the administrative remedies available under the Teacher Tenure Act (act), General Statutes § 10-151.

“It is a settled principle of administrative láw that, if an adequate administrative remedy exists, it must be exhausted before the Superior Court will obtain jurisdiction to act in the matter. . . . The exhaustion doctrine reflects the legislative intent that such issues be handled in the first instance by local administrative officials in order to provide aggrieved persons with full and adequate administrative relief, and to give the reviewing court the benefit of the local board’s judgment. ... It also relieves courts of the burden of prematurely deciding questions that, entrusted to an agency, may receive a satisfactory administrative disposition and avoid the need for judicial review.” (Citations omitted; internal quotation marks omitted.) Simko v. Ervin, 234 Conn. 498, 503-504, 661 A.2d 1018 (1995).

The sole and controlling legislative enactment with respect to the employment and termination of tenured teachers is the act. LaCroix v. Board of Education, 199 Conn. 70, 78, 505 A.2d 1233 (1986); see also Kolenberg v. Stamford Board of Education, 206 Conn. 113, 121, 536 A.2d 577 (1988). The plaintiff claims that as a tenured teacher she was aggrieved by her termination under General Statutes (Rev. to 1993) § 10-151 (f), which provided in pertinent part: “Any teacher aggrieved by the decision of a board of education after a hearing as provided in subsection (d) of this section may appeal therefrom, within thirty days of such decision, to the superior court. ...” Subsection (d) of the act requires that when a teacher is notified that termination of his or her contract is under consideration, that person file •with the board within twenty days, a written request for a hearing, and that person is entitled to receive a hearing “before the board ... or a subcommittee of the board . . . before an impartial hearing panel or . . . before a single impartial hearing officer chosen by both parties.” The trial court found that the plaintiff had failed to request such a hearing. The trial court specifically found that the plaintiffs request that the board demonstrate the reasons for the override decision is not a request for a hearing as set forth under the act.

The plaintiff argues that it is the defendants’ burden to establish that the plaintiff intentionally bypassed an administrative remedy, that she was entitled to a hearing in advance of Young’s override and that, because there is no express mention of a hearing in connection with an override either in the statute or in the collective bargaining agreement, she should have been advised by the defendant of her right to a hearing. We find the plaintiff’s arguments to be without merit on the issue of whether the trial court properly dismissed her action to contest her termination for lack of subject matter jurisdiction because of her failure to exhaust administrative remedies available under § 10-151.

An administrative remedy is adequate when it provides the plaintiff with the relief that she seeks and a mechanism for judicial review of the administrative decision. Cannata v. Dept. of Environmental Protection, 215 Conn. 616, 629, 577 A.2d 1017 (1990). The plaintiff had both notice of her right and the opportunity to request a hearing to contest her termination. Young’s subsequent notification that the board’s July 8 meeting was being held for the puipose of terminating her employment, coupled with Young’s notification that he was overriding her seniority, served to place the plaintiff on notice that, if she wanted to protect her rights, she had to request a hearing as required by § 10-151.

The plaintiff alleged, in her fourth count, that her termination was a willful, intentional and tortious breach of the collective bargaining agreement. This challenge, sounding in tort, for wrongful discharge was properly dismissed. A tenured teacher’s claim of wrongful discharge is governed by and limited to the statutory appeal process provided by § 10-151 (Í) (now § 10-151 [e]). Tomlinson v. Board of Education, 226 Conn. 704, 730, 629 A.2d 333 (1993).

“[A]ccess to the courts under the Teacher Tenure Act is possible only on appeal of a decision of the board of education. . . . Our Supreme Court, however, has permitted the filing of separate actions against boards of education for breach of contract under limited circumstances. . . . [However, a litigant is not permitted] to invoke common law contract remedies in complete disregard of available administrative relief.” (Citations omitted; internal quotation marks omitted.) Drahan v. Board of Education, 42 Conn. App. 480, 491, 680 A.2d 316, cert. denied, 239 Conn. 921, 682 A.2d 1000 (1996). Where a statutory right of appeal from an administrative decision exists, an aggrieved party may not bypass the statutory procedure and instead bring an independent action to test the issue that the appeal was designed to test. The plaintiff seeks to challenge the allegedly wrongful termination of her employment contract; that challenge raises the same issue that the appeal mechanism, authorized under § 10-151 (f), was designed to test. LaCroix v. Board of Education, supra, 199 Conn. 78-79; Drahan v. Board of Education, supra, 492.

Here, the plaintiff failed to pursue a statutory remedy. She failed to seek a hearing before the board, thereby depriving it of the opportunity to review a matter within its province, and to prepare a proper record, if necessary, on which to seek judicial review in the event that the board in fact terminated her.* ** Because of the plaintiffs failure to comply with the general rule of exhaustion of administrative remedies before pursuing her action in the Superior Court, the trial court lacked subject matter jurisdiction.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 10-151 is commonly known as the Teacher Tenure Act.

       This letter also stated: “While it is not my responsibility to do so, I would remind you that, under Section 10-151 of the General Statutes, you have certain rights.
      “Within seven (7) days of your receipt of this letter, you may request, in writing, a statement as to the reason(s) for considering termination. Within twenty (20) days of your receipt of this letter, you may request, in writing, a hearing on this matter. These requests should be made to the ACES Governing Board . . . .”

       Young’s authority to override an assertion of seniority, as set forth in art idos XVII and XVIII of the collective bargaining agreement, is not being contested by the plaintiff. The plaintiff, however, claims that the reasons for the override were not competently demonstrated.

       The trial court found that the plaintiff did not file a complaint with the commission on human rights and opportunities pursuant to the Connecticut Fair Employment Practices Act, General Statutes § 46a-51 et seq.

       Public Acts 1993, No. 93-58, designated subsection (f) as subsection (e).

       When considering termination of a tenured teacher’s employment contract, a school board acts as an administrative agency in a quasi-judicial capacity. Tomlinson v. Board of Education, supra, 226 Conn. 712. On appeal, the proper scope of review is that applicable to administrative appeals. Id.

       Insofar as the plaintiff may have attempted to raise a constitutional claim of deprivation of a property interest without due process, we conclude that the trial court lacked jurisdiction to consider it. See School Administrators Assn. v. Dow, 200 Conn. 376, 385, 511 A.2d 1012 (1986). The mere allegation of a constitutional violation will not excuse a party’s failure to exhaust available administrative remedies. Payne v. Fairfield Hills Hospital, 215 Conn. 675, 680, 578 A.2d 1025 (1990).


text:
    JOHN D. SIMONDS ET AL. v. RAYMOND H. SHAW ET AL.
    (15145)
    Dupont, C. J., and O'Connell and Foti, Js.
    Argued January 15
    officially released April 8, 1997

      Stanley Maxim Lucas, for the appellants (defendants).

      Michael R. Hasse, with whom, on the brief, was Richard T. Miller, for the appellees (plaintiffs).
   FOTI, J.

The defendants appeal from the trial court’s decision rendering judgment for the plaintiffs in accordance with the report of the attorney trial referee. On appeal, the defendants claim that the trial court improperly (1) granted an injunction, (2) found an easement by prescriptive use by the plaintiffs and their predecessors in title, (3) found that a right-of-way is appurtenant to the plaintiffs’ property, (4) determined that the plaintiffs had met their burden of proving that a right-of-way exists, (5) found that there had not been an abandonment of any right-of-way that may have existed, (6) decided that the Marketability of Title Act, General Statutes § 47-33b et seq., did not extinguish such a claimed easement, and (7) granted an injunction that did not set proper legal parameters of width, location, use, intensity and scope. We affirm the judgment of the trial court.

In their one count complaint, the plaintiffs, John D. Simonds and Delaine Simonds, claim the right to use a strip of land adjoining their property as a roadway over a portion of the land owned by the defendants, Raymond H. Shaw and Shirley M. Shaw, as a way of ingress and egress to Shetucket Turnpike in Voluntown. The plaintiffs allege that they have a right-of-way created by prescriptive easement because they and their predecessors in title have used and enjoyed the roadway for more than fifteen years in an open, adverse, visible, uninterrupted, notorious, and continuous manner. In May, 1986, the defendants obstructed the roadway to prevent the plaintiffs’ use of the strip of land. The plaintiffs seek an injunction to prevent the defendants from obstructing this roadway.

After a trial, the attorney referee filed a twelve page report including specific factual findings. He listed a number of maps, plans and photographs that supported his finding that a right-of-way exists. He found that the right-of-way has been known over the years as Two Woods Road and Cooney Road. The attorney referee also referred to the testimony of previous owners and a land surveyor in support of a finding of a right-of-way. Although the defendants’ title does not mention the right-of-way, the defendants’ predecessors’ title mentions a “drift-way” crossing the rear portion of the property. The defendants’ property survey includes notations of a roadway passing across their property to the plaintiffs’ property. The attorney referee concluded that the plaintiffs had shown by a fair preponderance that they had an easement by prescription for the right-of-way. He determined that the right-of-way has existed since at least 1942, is appurtenant to the plaintiffs’ property, and was included in the plaintiffs’ and their predecessors’ deeds of conveyance, which transferred “all appurtenances.” He recommended that the court grant the injunctive relief sought by the plaintiffs.

The defendants filed a motion to correct pursuant to Practice Book § 438. The attorney referee filed a supplemental report denying the substance of the motion to correct. The defendants filed exceptions and objections to the attorney referee’s report pursuant to Practice Book §§ 439 and 440 The plaintiffs filed a motion for judgment in accordance with the attorney referee’s report. On August 14, 1995, the trial court rendered judgment in accordance with the attorney referee’s report. This appeal followed.

I

The defendants claim that the trial court improperly granted an injunction. They contend that the plaintiffs failed to demonstrate irreparable harm because the plaintiffs had other access to their property and that there was an adequate remedy at law because the plaintiffs had alternate remedies through an award of damages or pursuant to General Statutes § 47-31. We do not agree.

The plaintiffs brought this action pursuant to § 47-37, the statutory provision defining a prescriptive easement. General Statutes § 47-37 provides: “No person may acquire a right-of-way or any other easement from, in, upon or over the land of another, by the adverse use or enjoyment thereof, unless the use has been continued uninterrupted for fifteen years.” General Statutes § 47-31 creates an action to quiet title that is not relevant to a claim of an easement because actual ownership of the property is not at issue.

Injunctive relief is appropriate in an action to bar the closing, obstructing or interfering with the right-of-way. See, e.g., Westchester v. Greenwich, 227 Conn. 495, 502, 629 A.2d 1084 (1993); Expressway Associates II v. Friendly Ice Cream Corp. of Connecticut, 218 Conn. 474, 475, 590 A.2d 431 (1991); Chapul v. Clarke, 26 Conn. App. 785, 792, 603 A.2d 1195 (1992). In effect, the attorney referee, by awarding injunctive relief, concluded that damages were not an adequate remedy. We conclude that an award of injunctive relief was not improper.

II

The defendants claim that there was insufficient evidence to support a finding of a prescriptive easement. They separate this argument into a number of individual claims, which we will address together. The defendants argue that there were interruptions in the use of the roadway, so that the use cannot be considered to be a continuous and uninterrupted period of time for at least fifteen years as required by § 47-37. They contend that the plaintiffs did not meet the burden of proof to establish that a right-of-way existed or does exist. We conclude that there was sufficient evidence to find that the plaintiffs had a right-of-way by prescriptive easement to use the roadway.

“[A] prescriptive easement is established by proving an open, visible, continuous and uninterrupted use for fifteen years made under a claim of right.” Gioielli v. Mallard, Cove Condominium Assn., Inc., 37 Conn. App. 822, 829, 658 A.2d 134 (1995). A prescriptive easement must be proved by a fair preponderance of the evidence. Reynolds v. Soffer, 190 Conn. 184, 188, 459 A.2d 1027 (1983); Public Storage v. Eliot Street Ltd. Partnership, 20 Conn. App. 380, 385, 567 A.2d 389 (1989).

“Whether the requirements for such a right have been met in a particular case presents a question for the trier of facts after the nature and character of the use and the surrounding circumstances have been considered.” Krohner v. Seyburt Associates Ltd. Partnership, 20 Conn. App. 298, 301, 566 A.2d 995 (1989), cert. denied, 213 Conn. 814, 569 A.2d 550 (1990). The attorney referee made subordinate factual findings based on the evidence that allowed him to conclude that the plaintiffs and their predecessors had a right-of-way through a prescriptive easement. He determined that the testimony of previous owners and a land surveyor, maps, plans and photographs, and other circumstances demonstrated continued and uninterrupted use for at least fifteen years.

The defendants also claim that the plaintiffs’ predecessors in interest had abandoned any right to the right-of-way that was obtained through prescriptive easement. “Whether there has been an abandonment is a question of intention to be determined from all the surrounding circumstances, and is a question of fact and not of law.” Richardson v. Tumbridge, 111 Conn. 90, 93, 149 A. 241 (1930). The plaintiffs and the two previous owners testified that they did not, nor did they intend to, abandon the right-of-way. There was sufficient evidence, therefore, to support the attorney referee’s conclusion that there had not been an abandonment of the easement.

The defendants further claim that the easement was not appurtenant to the plaintiffs’ land and that, therefore, the right-of-way should not have passed to the plaintiffs. Whether the right-of-way is appurtenant or in gross is resolved by ascertaining the intent of the parties. This intent is determined by considering the provisions of the deed in light of the then existing situation of the property and the current surrounding circumstances. Stiefel v. Lindeman, 33 Conn. App. 799, 807, 638 A.2d 642, cert. denied, 229 Conn. 914, 642 A.2d 1211 (1944). The deeds of conveyance of the plaintiffs and their predecessors included language that transferred “all appurtenances.” We have held that a habendum clause that included the phase “with appurtenances thereof’ was sufficient to convey a right-of-way. See Chaput v. Clarke, supra, 26 Conn. App. 791. The attorney referee determined that the easement was appurtenant and therefore passed by deed to the plaintiffs.

We conclude that there was sufficient evidence to support the attorney referee’s conclusions. Applying the law to this factual determination, we conclude that the trial court properly determined that an easement by prescription existed granting the plaintiffs a right-of-way over the roadway on the defendants’ property.

Ill

The defendants argue that the Marketability of Title Act, General Statutes § 47-33b et seq., extinguished the claimed easement. We do not agree.

The purpose of that act is to limit title searches to some reasonable period of the immediate past, forty years in Connecticut pursuant to General Statutes § 47-33c, and thus to avoid the necessity of examining the record back into distant time for each new transaction. Mizla v. DePalo, 183 Conn. 59, 64 438 A.2d 250 (1981).

The attorney referee found that the defendants had received ownership of their property by deed in 1977. He determined, on the basis on the testimony of previous owners and the plaintiffs, that there were acts of use in the forty years prior to 1977, and that, therefore, the right-of-way was not voided by the Marketability of Title Act.

Moreover, General Statutes § 47-33h expressly exempts easements from being extinguished by the Marketability of Title Act where the easement is evidenced by a road or other structure. A party cannot extinguish such easement if the interest is evidenced by the location of said easement on the land.

We conclude that the Marketability of Title Act did not prevent the trial court from finding that the plaintiffs had a right-of-way over the defendants’ property.

rv

The defendants claim that the trial court improperly granted an injunction that did not set legal parameters of width, location, use, intensity and scope. We are unpersuaded.

“A prescriptive right cannot be acquired unless the use defines its bounds with reasonable certainty.” (Internal quotation marks omitted.) Schulz v. Syvertsen, 219 Conn. 81, 92-93, 591 A.2d 804. “[W]hen an easement is established by prescription, the common and ordinary use which established the right also limits and qualifies it. . . . The use of an easement must be reasonable and as little burdensome to the servient estate as the nature of the easement and the purpose will permit.” (Citations omitted; internal quotation marks omitted.) Kuras v. Kope, 205 Conn. 332, 341, 533 A.2d 1202 (1987).

The trial court did not need to set specific parameters for the easement because the roadway defines the right-of-way. See Hagist v. Washburn, 16 Conn. App. 83, 86, 546 A.2d 947 (1988). The plaintiffs sought to enjoin the defendants from preventing use of the easement. The defendants argued that there was no right-of-way; they did not claim that the plaintiffs were overusing the roadway. The trial court granted the injunction restraining the defendants from continuing to close, to obstruct, or to interfere with the right-of-way. The plaintiffs are entitled to reasonable use of the roadway.

The judgment is affirmed.

In this opinion the other judges concurred.

       Practice Book § 438 provides in relevant part,: “If either party desires to have the report or the finding corrected by striking out any of the facts found, or by adding further facts, or by stating the claims of the parties made before the committee, or by setting forth rulings upon evidence or other rulings of the committee, he shall within two weeks after the filing of the report or finding file with the court a motion to correct setting forth the changes and additions desired by him. ...”

       The attorney referee granted the motion to correct as to the trial dates that were incorrect, in his original report. This correction is not relevant to any claims on appeal. The attorney referee also granted the motion to correct its statement that an aerial survey showed the right-of-way in question because this was a legal conclusion and instead he should have stated that the photograph shows a break in the tree line indicating some physical path on the land in the, vicinity of the alleged right-of-way.

       Practice Book § 439 provides in relevant part: “If a committee fails to correct a report or finding in compliance with a motion to correct, the moving party may, within ten days after the decision on the motion to correct, file exceptions seeking corrections by the court in the report or finding. The court will not consider an exception unless its subject matter has been submitted to the committee in a motion to correct, provided that this requirement shall not apply to exceptions taken to corrections in the report or finding made after it was filed; nor will the court correct a finding of fact unless a material fact has been found without evidence or the committee has failed to find an admitted or undisputed fact, or has found a fact in such doubtful language that its real meaning does not appear. . . .”

       Practice Book § 440 provides in relevantpart: “A party may file objections to the acceptance of a report on the ground that conclusions of fact stated in it were not properly reached on the basis of the subordinate facts found, or that the committee erred in rulings on evidence or other rulings or that there are other reasons why the report should not be accepted. . . .”

       General Statutes § 47-33c provides: “Any person having the legal capacity to own land in this state, who has an unbroken chain of title to any interest in land for forty years or more, shall be deemed to have a marketable record title to that interest, subject only to the matters stated in section 47-33d. A person has such an unbroken chain of title when the land records of the town in which the land is located disclose a conveyance or other title transaction, of record not less than forty years at the time the marketability is to be determined, which conveyance or other title transaction purports to create such interest in land, or which contains language sufficient to transfer the interest, either in (1) the person claiming that interest, or (2) some other person from whom, by one or more conveyances or other title transactions of record, the purported interest has become vested in the person claiming the interest; with nothing appearing of record, in either case, purporting to divest the claimant of the purported interest.”

       General Statutes § 47-33h provides in relevant part: “Section 47-33b to 47-33Í, inclusive, shall not be applied ... to bar or extinguish any easement or interest in the nature of an easement ... if the existence of such easement or interest is evidenced by the location beneath, upon or above any part of the land described in such instrument of any pipe, valve, road, wire, cable, conduit, duct, sewer, track, hole, tower or other physical facility


author: HEIMAN, J.

text:
    LOUIS CLAVELOUX ET AL. v. DOWNTOWN RACQUET CLUB ASSOCIATES ET AL.
    (14629)
    Foti, Landau and Heiman, Js.

      Argued December 17, 1996
    officially released April 8, 1997

      David A. Reif, with whom, on the brief, was Thomas E. Eaton, for the appellants (plaintiffs)..

      Daniel P. Scapellati, with whom, on the brief, was Harris B. Appelman, for the appellees (defendants).
   HEIMAN, J.

The plaintiff appeals from the judgment rendered by the trial court in favor of the defendants following the granting of a directed verdict at the close of the liability phase of the plaintiffs case. On appeal, the plaintiff claims that the trial court improperly (1) granted the defendants’ motion for a directed verdict, (2) excluded relevant evidence offered by the plaintiff, and (3) refused to allow the plaintiffs counsel to pose a hypothetical question to the plaintiffs expert witness. We reverse the judgment of the trial court.

The following facts are necessary for a proper resolution of this appeal. On November 8, 1987, the plaintiff, Louis Claveloux, was engaged in a racquetball tournament on the defendants’ premises, the Downtown Racquet Club. In an attempt to return a shot from his opponent, the plaintiff took two or three steps to his left, slipped, and was propelled head first into the right side wall of the racquetball court. As a result of this accident, the plaintiff became a quadriplegic. He is paralyzed from the neck down. The plaintiff was fifty-seven years old at the time of the accident. He played racquetball approximately six times a week and had participated in approximately thirty racquetball tournaments.

On February 15,1995, at the conclusion of the liability phase of the plaintiffs case, the trial court granted the defendants’ motion for a directed verdict, and directed the jury to return a verdict in favor of the defendants. The trial court determined that the plaintiff had failed to produce sufficient evidence to support a prima facie case of premises liability. On March 13, 1995, the trial court denied the plaintiffs motion to set aside the verdict. This appeal follows.

The plaintiff asserts that the trial court improperly excluded evidence of prior slipping accidents on the defendants’ racquetball courts. The plaintiff further asserts that this improper evidentiary ruling prevented the plaintiff from introducing sufficient evidence to make out a prima facie case of premises liability. We agree.

Certain additional facts are necessary to an understanding of our resolution of this issue. The defendants filed a motion in limine to preclude evidence of prior conditions and complaints, “unless they are the same court as the accident and reasonably close in time to November 8, 1987.” A decision on the motion in limine was deferred. At trial, outside the presence of the jury, the plaintiff testified that on the day before the accident, while warming up for a racquetball game in another of the defendants’ racquetball courts, both his racquetball partner and he slipped on the surface of the court. The plaintiff explained that both he and his partner had slipped on two different slippery spots on the floor, both of which seemed to be covered in a clear slippery oil. The plaintiff further testified that he reported this slipping problem to someone at the front desk of the club, and within a few minutes, a maintenance man came and mopped the entire court.

After the plaintiffs testimony, the trial court granted the motion in limine and excluded this evidence on the ground that these prior slipping incidents were not substantially similar to the slipping incident at issue for two reasons. First, the prior accidents occurred on another racquetball court, on another day, when the plaintiff was warming up for a racquetball match, while the accident here occurred when the plaintiff was in the process of playing a racquetball match. Second, the prior incidents were caused by a foreign substance on the court floor, and there is no claim that the injury here was caused by a foreign substance on the court floor.

“[E]vidence is admissible to prove a material fact that is relevant to the cause of action alleged by the plaintiff. . . .A trial court has broad discretion in ruling on the admissibility of evidence, and we will not disturb such a decision absent an abuse of discretion. . . . Nevertheless, [t]he exercise of discretion to omit evidence in a civil case should be viewed more critically than the exercise of discretion to include evidence. It is usually possible through instructions or admonitions to the jury to cure any damage due to inclusion of evidence, whereas it is impossible to cure any damage due to the exclusion of evidence.” (Citations omitted; internal quotation marks omitted.) Martins v. Connecticut Light & Power Co., 35 Conn. App. 212, 217, 645 A.2d 557, cert. denied, 231 Conn. 915, 648 A.2d 154 (1994).

“Evidence of prior accidents is admissible to prove the existence of a particular physical condition, situation or defect ... or to prove notice of a dangerous character. . . . Such evidence is admissible to show that the defendant knew or should have known of the hazards created by a particular condition or danger. ... A plaintiff attempting to introduce evidence of prior accidents must show that the circumstances of the other accidents were substantially similar to those under which the plaintiff was injured.” (Citations omitted; internal quotation marks omitted.) Id., 216-17.

“Substantially similar does not mean exactly similar-, and the extent to which the conditions may vary does not prevent admissibility.” Id., 218. Further, “[t]he requirement of a substantially similar condition is lessened when the evidence is offered to show notice of a dangerous condition. In such a case, the prior accidents need only be such as [would] call [the] defendant’s attention to the dangerous situation that resulted in the litigated accident.” (Internal quotation marks omitted.) Id., 217.

The trial court applied an incorrect standard in determining the admissibility of the prior slipping accidents. The evidence that the plaintiff and his racquetball partner slipped on another of the defendants’ racquetball courts the day before the incident here, and consequently complained to the defendants about the slipperiness of the racquetball courts, was offered to prove that the defendants had notice of the dangerous condition that caused the plaintiffs fall. Thus, under Martins, the appropriate inquiry was not whether the prior accidents were “substantially similar” to the accident here, but rather whether the prior accidents would call the defendants’ attention to the dangerous condition, a less rigorous standard. Id. The prior slipping incidents occurred one day before the slipping incident at issue, while the plaintiff was playing racquetball on the defendants’ racquetball courts. We conclude that these prior incidents were such as to call the defendants’ attention to the slippery condition of the racquetball courts.

Moreover, the trial court’s determination that in order to be admissible, the prior slipping accidents must have been caused by the same particular defect as that which caused the litigated accident is incorrect. Under Gray v. Fitzgerald & Platt, Inc., 144 Conn. 57, 127 A.2d 76 (1956), and Magnon v. Glickman, 185 Conn. 234, 440 A.2d 909 (1981), the plaintiff must prove only that the prior accidents and the accident here were both caused by a slippery floor. The plaintiff need not prove that the slippery floor that caused the prior accidents and the slippery floor that caused this accident were both made slippery by the same particular defect. See Gray v. Fitzgerald & Platt, Inc., supra, 59; Magnon v. Glickman, supra, 237-40. We conclude that the prior accidents were such as to call the defendants’ attention to the slippery condition of their racquetball courts, and thus the trial court improperly excluded this evidence.

“We have often stated that before a party is entitled to a new trial because of an erroneous evidentiary ruling, he or she has the burden of demonstrating that the error was harmful. . . . When determining that issue in a civil case, the standard to be used is whether the erroneous ruling would likely affect the result. . . .Any testimony in a case that tends of itself or in connection with other testimony to influence the result on a fact in issue is material. If the testimony would tend to affect the verdict ... it meets the test of materiality.” (Citations omitted; internal quotation marks omitted.) Swenson v. Sawoska, 215 Conn. 148, 153, 575 A.2d 206 (1990).

“The plaintiff bears the burden of demonstrating that the erroneous ruling was likely to affect the result of the trial.” Martins v. Connecticut Light & Power Co., supra, 35 Conn. App. 222. In this case the plaintiff has met that burden. The exclusion of evidence of the prior accidents prevented the jury from considering relevant and material evidence that affected an ultimate issue and prevented the plaintiff from proving whether the defendants had knowledge of a dangerous condition. Because such knowledge establishes a duty of care and the extent of care necessary to satisfy the defendants’ duty, the exclusion of evidence affected the plaintiffs ability to prove a prima facie case of premises liability. See id. As the trial court granted a directed verdict in favor of the defendants because of the plaintiff’s failure to prove a prima facie case of premises liability, we conclude that the improper exclusion of prior accident evidence likely affected the result of the trial and therefore was harmful.

The judgment is reversed and the case is remanded for a new trial.

In this opinion the other judges concurred.

       Jean Claveloux, the spouse of Louis Claveloux, is also a plaintiff in this case. She alleges a derivative loss of consortium, which is not at issue in this appeal. Therefore, for purposes of this opinion we will refer to Louis Claveloux as the plaintiff.

       The defendants in this case are the Downtown Racquet Club Associates and the general partner of the Downtown Racquet Club Associates, Edmund J. Fusco.

       We note that the parties had agreed that the defendants would move for a directed verdict at the conclusion of the liability phase of the plaintiffs case.

       During the argument on the motion for a directed verdict, the defendants discussed their second special defense that the plaintiff “entered into an exculpatory agreement in which he agreed to give up any claims he had against these defendants.” The trial court, however, granted the defendants’ motion for a directed verdict solely on the ground that the plaintiff had failed to produce sufficient evidence to support a prima facie case of premises liability. In ruling on the motion for a directed verdict, the trial court explained, “So, I’m going to grant 1he defendants’ motion for directed verdict and I think given that ruling I do not necessarily have to rule on the claim of waiver . . . .”
      We conclude that the trial court did not rale on the defendants’ special defense of release, and the trial court’s comments regarding the release or waiver issue are at best dicta. Moreover, the defendants failed to file a motion for articulation of the trial court’s decision or to raise the release issue as an alternative ground for affirmance in their Practice Book § 4013 (a) (1) preliminary statement of issues. Thus, the defendants “failed to follow the relatively simple rules established to guarantee the presentation to this court of a record appropriate to review. . . . As an appellate tribunal, either we adhere to the letter of the rules or create judicial anarchy, whereby, on an ad hoc basis, we decide cases, the outcome of which will turn on the mind-set of the panel hearing the appeal.” (Citation omitted; internal quotation marks omitted.) Dime Savings Bank of Wallingford v. Cornaglia, 33 Conn. App. 549, 555-56, 636 A.2d 1370, cert. granted, 229 Conn. 907, 640 A.2d 120 (1994), appeal withdrawn October 17, 1994. For all of the foregoing reasons, we decline to review the defendants’ release claim.

       The relevant portion of the trial court’s evidentiary ruling is as follows: “I particularly point out this case [Wray v. Fairfield, 126 Conn. 221, 227, 10 A.2d 600 (1940)] because, as I stated yesterday, it was always my understanding in these types of cases that you have to prove or show proof of the particular defect, and if we talk about substantially the same, and in the circumstances of this particular case you are offering proof of two spots on the floor that were cleaned up to show, I guess, notice ... of another court on another day where no claim is made of any kind of foreign substances on the floor leading in any way, lhal we consider in terms of causation, to the plaintiffs incident. You have offered testimony through the plaintiff of his having slipped on aforeign substance on a court the day before his accident while warming up, as he put it, and I asked him to describe for us what he was doing while warming up, which is in no way similar, in the court’s opinion, to his testimony of what he was doing while engaged in play on November 8,1987, and immediately prior to this unfortunate accident. ... I said all that to say that under 8.9.5, Mr. Reif, I’m not convinced at all by the offer of the testimony thus for that we are talking about similarity or substantial similarity of conditions and/or use. . . . Motion in limine granted.”

       Our resolution of the plaintiffs first, claim is dispositive of this appeal, and thus we do not reach the plaintiffs other claims.


text:
    JODI BILODEAU v. AETNA CASUALTY AND SURETY COMPANY
    (15796)
    Dupont, C. J., and Spear and Hennessy, Js.
    Submitted on briefs January 29
    officially released April 8, 1997

      Steven J. DeFrank filed a brief for the appellant (plaintiff).

      John L. Hayes filed a brief for the appellee (defendant).
   SPEAR, J.

The dispositive issue in this appeal is whether the trial court properly granted summaiy judgment in favor of the defendant in the plaintiffs action to recover underinsured motorist benefits, where the plaintiff presented her claim for benefits beyond the two year time limit specified in the insurance policy for submitting such claims. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. On Januaiy 12, 1991, the plaintiff was injured in an automobile accident. At the time of the accident, the plaintiff was insured by the defendant. The insurance contract provided underinsured motorist benefits and required the plaintiff to submit any under-insured motorist claim to arbitration within two years from the date of the accident. On October 24, 1993, she reached a settlement with the tortfeasor’s insurance company for the full policy limit of $20,000. On February 1, 1994, more than three years after the accident, the plaintiff filed suit against the defendant, seeking under-insured motorist benefits. The defendant filed a motion for summary judgment, asserting that the plaintiffs claim was time barred. The trial court granted the defendant’s motion and this appeal followed.

At the time of the accident giving rise to this action, insureds were required to submit underinsured claims to their insurer within the time period set forth in the insurance contract, typically within two years. See McGlinchey v. Aetna Casualty & Surety Co., 224 Conn 133, 617 A.2d 445 (1992), and Hotkowski v. Aetna Life & Casualty Co., 224 Conn. 145, 617 A.2d 451 (1992). Public Acts 1993, No. 93-77 (P.A. 93-77) was intended to regulate such time periods, to “aid insureds who were in the position of having to exhaust the tortfeasor’s policy, a process that could take several years, before being entitled to underinsured motorist benefits under their own policies.” Rivera v. Allstate Ins. Co., 44 Conn. App. 47, 50, 686 A.2d 530 (1996). Section 2 (e) of the act provides that “[n]o insurance company doing business in this state may limit the time within which any suit may be brought against it or any demand for arbitration on a claim be made ... to a period of less than three years . . . .” Section 3 of the act is a savings clause that applies retroactively to “claim[s] or actionfs] pending on December 8,1992, or brought after said date and prior to [May 20, 1993].”

In Bayusik v. Nationwide Mutual Ins. Co., 233 Conn. 474, 483-84, 659 A.2d 1188 (1995), our Supreme Court held that where a plaintiffs underinsured claim is saved by the retroactive provisions of § 3 of P.A. 93-77 a two year contractual limitation in unenforceable, and, instead, the six year statute of limitations controls. In this case, however, the plaintiff does not claim that her action is governed by § 3 of P.A. 93-77. Rather, she argues that § 2 (e) applies retrospectively to invalidate all two year contractual limitations in claims brought after May 20, 1993, and as a result, the six year statute of limitations for contract actions controls her claim. We disagree.

In Bayusik, our Supreme Court rejected the argument that § 2 (e) of P.A. 93-77 has retrospective applicability. “[W]e have uniformly interpreted [General Statutes] § 55-3 as a rule of presumed legislative intent that statutes affecting substantive rights shall apply prospectively only. . . . The legislature only rebuts this presumption when it clearly and unequivocally expresses its intent that the legislation shall apply retrospectively. . . . The retrospective application of § 2 (e) of P.A. 93-77 would alter the material terms of existing policies, thereby affecting substantive contractual rights and obligations that already had been settled under the express terms of those policies. . . . [W]e conclude that the legislature did not intend to achieve such a result under § 2 (e) of P.A. 93-77.

“Neither the language nor the legislative history of § 2 (e) of P.A. 93-77 supports the conclusion that the legislature intended it to have retrospective application. Unlike § 3 . . . which by its express terms applies retroactively, § 2 (e) is devoid of language suggesting that it should likewise be applied to modify the terms of contracts already in existence.” (Citations omitted; internal quotation marks omitted.) Bayusik v. Nationwide Mutual Ins. Co., supra, 233 Conn. 483-84. If the legislature intended to invalidate all two year contractual limitations, it would have done so explicitly. See id., 484. Because the plaintiffs claim is not governed by P.A. 93-77, § 3, and because § 2 (e) does not apply to retroactively invalidate the contractual two year time limit, the plaintiff cannot avail herself of the six year statute of limitations.

The judgment is affirmed.

In this opinion the other judges concurred.

       Such a time limit was authorized at the time by General Statutes (Rev. to 1991) § 38a-290 (d). This type of provision was held to be valid and enforceable in McGlinchey v. Aetna Casualty & Surety Co., 224 Conn. 133, 617 A.2d 445 (1992), and Hotkowski v. Aetna Life & Casualty Co., 224 Conn. 145, 617 A.2d 451 (1992).

       The plaintiff conceded that this was the only formal notice provided to the defendant of her intent to claim underinsured motorist benefits.

       Public Acts 1993, No. 93-77, provides in pertinent part: “Sec. 2. . . . (e) No insurance company doing business in this state may limit the time within which any suit may be brought against it or any demand for arbitration on a claim be made on the uninsured or underinsured motorist provisions of a motor vehicle policy to a period of less than three years from the date of accident, provided, in the case of an underinsured motorist claim the insured may toll any applicable limitation period (1) by notifying such insurer prior to the expiration of the applicable limitation period, in writing, or any claim which the insured may have for underinsured motorist benefits and (2) by commencing suit or demanding arbitration under the terms of the policy not more than one hundred eighty days from the date of exhaustion of the limits of liability under all automobile bodily injury liability bonds or automobile insurance policies applicable at the time of the accident by settlements or final judgments after any appeals. . . .
      “Sec. 3. ... No uninsured or underinsured motorist claim or action pending on December 8, 1992, or brought after said date and prior to the effective date of this act [May 20, 1993], in which a settlement has not been reached or a final judgment has not been rendered prior to the effective date of this act, shall fail by reason of any contractual limitation in a motor vehicle insurance policy which limits the time within which such claim shall be submitted to arbitration or such action shall be commmced

        to a period of time less than that allowed under section 38a-336 of the general statutes, as amended by section 2 of this act." (Emphasis added.)

       General Statutes § 55-3 provides: “No provision of the general statutes, not previously contained in the statutes of this slate, which imposes any new obligation on any person or corporation, shall be construed to have a retrospective effect.”