text:
    SPRINGFIELD OIL SERVICES, INC. v. JOHN CONLON
    (AC 21783)
    Dranginis, Flynn and Healey, Js.
    Argued November 21, 2002
    officially released June 10, 2003

      David M. Wallman, with whom, on the brief, was Elizabeth A. Di Russo, for the appellant (defendant).

      Saul Roffe, pro hac vice, with whom were Margaret E. Haering and, on the brief, Elias A. Alexiades, for the appellee (plaintiff).
   Opinion

DRANGINIS, J.

The defendant, John Conlon, appeals from the judgment of the trial court, rendered after a trial to the court, in favor of the plaintiff, Springfield Oil Services, Inc. (Springfield Oil). On appeal, Conlon claims that the court improperly found that Springfield Oil proved by clear and convincing evidence that the assignment of promissory notes to it by its affiliate was fair. We agree and, accordingly, reverse the judgment of the trial court.

The relevant facts and procedural history are as follows. Harvest Oil Company (Harvest) was the general partner of a limited partnership known as Salisbury Associates (Salisbury). Salisbury was formed for the purpose of exploratory oil and natural gas drilling. Units in the Salisbury partnership were offered to investors in a private placement memorandum (memorandum). At the outset, the memorandum warned potential investors: “Investment in the units described herein involves a high degree of risk, and only those persons who are able to bear the financial risks referred to in this memorandum should consider purchasing such units.” The memorandum stated, inter alia, that investment in the partnership was advantageous not only because the partnership hoped to develop successful wells, but also because the investment carried significant tax advantages. In addition, the memorandum disclosed that Springfield Oil, the oil and gas driller with which Salisbury was contracting to perform the drilling, was an affiliate of Harvest, the general partner.

The exploration and drilling contract between Salisbury and Springfield Oil, which was referred to in the memorandum as the “turnkey contract,” provided that Springfield Oil would drill five wells between 1981 and 1983, and that Salisbury would pay Springfield Oil $700,000 in each of the first two years for acquisition and drilling of the first three wells, and an additional $700,000 for drilling the fourth and fifth wells. The $700,000 installments were payable partly in cash and partly in interest bearing notes, with the accrued balance of each note due on December 31,1991, December 31, 1992, and December 31, 1993.

Conlon, who was a securities trader, became a limited partner in Salisbury by purchasing one unit in the Salisbury partnership. He paid for that unit partly in cash and partly by executing three $50,000 promissory notes payable to the Salisbury partnership. Conlon’s promissory notes, as well as those of the other limited partners, were due on the same dates that Salisbury’s notes were due to Springfield Oil; Conlon’s first $50,000 note was due on December 31, 1991, the second on December 31, 1992, and the third on December 31, 1993.

From 1981 through 1989, inclusive, Salisbury provided Conlon with Internal Revenue Service schedule K-l forms. Each of the K-l forms set forth the amount of Salisbury’s loss that was allocated to Conlon, which he could use to offset any other income he may have earned, thereby reducing his tax liability. In addition, between 1981 and 1985, inclusive, Salisbury issued periodic reports to Conlon, which purported to set forth information pertaining to the production of the oil and gas wells.

On October 20, 1989, Harvest, Salisbury’s general partner, sent Conlon, and presumably the other limited partners, a letter in which it proposed to dissolve the Salisbury partnership. The letter explained that the partnership had been successful with its tax strategy, but that the partnership had not generated sufficient cash flow to pay off Conlon’s promissory note obligation. The letter further stated that because of the drop in oil and gas prices, the partnership no longer was economically viable and that the assets of the partnership had little worth. The letter indicated that Salisbury would, therefore, dissolve the partnership and assign each partner his or her proportionate share of the assets and note obligations. It also indicated that Conlon could restructure his financial obligation by accepting either of two alternatives by November 20,1989. Conlon could either (1) execute a new $22,500 promissory note, payable to Springfield Oil, which would be due in fifteen years, along with a fifteen year assignment of production income in lieu of all future interest on the new note, or (2) remit $45,000 to Springfield Oil as “full and final settlement of [his] Note.” Finally, the letter stated that if Conlon did not respond by the date indicated, Harvest would assume that Conlon did “not agree to amend the Partnership Agreement which [would] allow for this proposed dissolution and that [he did] not wish to modify the terms of his original Promissory Note.” The letter was signed by Harvest, as general partner. Conlon did not respond to that letter.

Thereafter, on December 31, 1989, Harvest dissolved the Salisbury partnership. Upon dissolution, Harvest assigned to Springfield Oil all of its assets, including Conlon’s promissory notes, as well as the promissory notes of the other limited partners, and its drilling rights to the oil and gas wells.

On April 11,1990, Harvest sent Conlon a letter advising him that pursuant to the October 20, 1989 letter, the Salisbury partnership had been dissolved and that because he had not responded to the October letter, his promissory notes would be payable on their original due dates. The letter did not, however, provide any details regarding the dissolution, namely, that the partnership assets were assigned to Springfield Oil. The letter also did not provide an accounting as to the value of Salisbury’s assets at the time of dissolution. On June 11, 1992, Springfield Oil sent Conlon a letter indicating that the first of his three promissory notes had come due. On November 9, 1995, Springfield Oil sent a letter to Conlon in which it demanded payment of the three promissory notes, totaling $150,000, plus interest. Conlon did not respond to either of those letters.

Thereafter, Springfield Oil brought this action against Conlon to enforce the three promissory notes that Conlon had executed in favor of Salisbury and which Salisbury subsequently had assigned to Springfield Oil. In its complaint, Springfield Oil alleged that the three notes were past due and that Conlon had failed to pay the amount due under the terms of the notes when it demanded payment.

Conlon filed an answer in which he admitted that he had executed the notes in connection with his purchase of a unit in the Salisbury partnership and that he had not paid the debt represented by those notes. He denied the remaining allegations of Springfield Oil’s complaint. Conlon also filed four special defenses. In his first special defense, Conlon alleged, inter alia, that Harvest, the general partner, breached its partnership duties by failing to maintain books and records and by dissolving the partnership for reasons other than those permitted by the partnership agreement. In his second special defense, Conlon alleged that the general partner breached its fiduciary duties to the limited partners by assigning the promissory notes to its affiliate, Springfield Oil, thereby attempting to obtain payment from the limited partners without accounting to the limited partners, by disposing of assets, including the oil and gas wells or the proceeds therefrom and the promissory notes, without adequate consideration or without accounting for the consideration actually received, by engaging in acts of self-dealing and by failing to keep the limited partners informed of the affairs of the partnership. In his third special defense, Conlon alleged that the general partner had sold or otherwise disposed of assets of the partnership and failed to account for the proceeds of the sale or disposition, and therefore was hable to the limited partners for conversion of partnership assets. Finally, in his fourth special defense, Conlon aheged that the general partner breached its fiduciary duties by failing to exercise good faith and integrity in conducting the affairs of the partnership. Springfield Oil filed a reply to Conlon’s special defenses, in which it essentially denied the allegations set forth therein.

Prior to trial, Springfield Oil stipulated that it was not a holder in due course with regard to the notes and, therefore, was subject to any of the defenses that Conlon was entitled to assert against Harvest.

Only two witnesses testified at trial, Conlon and Jerry Karlik, the vice president of both Harvest and Springfield Oil. Conlon testified that he did not remember anything about his investment in the Salisbury partnership. When he was shown the closing documents and promissory notes, Conlon admitted that it was his signature that appeared on those documents.

Karlik testified as follows. Harvest provided various documents to potential investors of the Salisbury partnership, including the private placement memorandum, some closing documents and the partnership agreement. In the memorandum, Harvest disclosed that Bentley Blum was the sole shareholder of both the general partner, Harvest, and Springfield Oil, with which Salisbury had contracted to conduct the exploration and drilling of the wells. The terms of that drilling contract were disclosed in the memorandum as well. Both the general and limited partners were of the understanding that the promissory notes of the limited partners would be paid off by revenues generated by oil and gas sales, provided the wells produced enough revenue to do so.

Karlik further testified that Springfield Oil either drilled the wells itself or hired third parties to conduct the drilling. The drillers would provide daily drilling logs and Harvest would use those logs to generate production reports, which were later sent to the Salisbury limited partners. Although Karlik testified that production reports were likely issued to the limited partners for all of the years that the partnership was in existence, 1981 through 1989, inclusive, the production reports produced at trial were solely for the years 1981 through 1985, inclusive. Karlik admitted that he could not locate any reports for the years 1986 through 1989 in the files of either Harvest or Springfield Oil. Moreover, Karlik conceded that the production reports that were introduced contained notations indicating that Salisbury was experiencing difficulty in obtaining production and revenue figures from the drillers and the purchasers of the oil and gas, respectively. Springfield Oil did not produce any documentation at trial indicating that the reporting problems had been rectified before the partnership was dissolved.

Additionally, Karlik testified that the partnership was dissolved on December 31, 1989, and that at that time, Salisbury owed Springfield Oil approximately $2.1 million but had only $1.5 million in assets. According to Salisbury’s final balance sheet for the period December 31, 1988, through December 31, 1989, which was introduced at trial, the $2.1 million debt consisted of Salisbury’s notes payable to Springfield Oil, plus accrued interest payable. Karlik conceded, however, that he did not have copies of the notes evidencing Salisbury’s debt to Springfield Oil. According to Karlik and Salisbury’s balance sheet, the $1.5 million in assets consisted mainly of notes receivable from the limited partners, including Conlon’s notes totaling $150,000.

Finally, Karlik testified that on the date of dissolution, December 31,1989, he assigned the notes of the limited partners, including Conlon’s notes, to Springfield Oil in full satisfaction of Salisbury’s debt. He testified that he also assigned Salisbury’s drilling rights to Springfield Oil at that time. The drilling rights to the wells were represented on Salisbury’s balance sheet only as to the oil and gas sales they generated. Karlik conceded that although the drilling rights were an intangible asset of the Salisbury partnership, Salisbury did not include an account on its balance sheet representing the value of the drilling rights themselves. Furthermore, according to Karlik, although the partnership still owned the drilling rights to the wells at the time of dissolution, the drilling rights were of little or no value because the wells were not producing. Karlik conceded, however, that both Harvest and Springfield Oil anticipated that postdissolution, there would be “some” revenue generated from those wells.

On the basis of the testimony and documentary evidence adduced at trial, the court concluded that Springfield Oil, because it was the assignee of the fiduciary Harvest, had the burden of proving by clear and convincing evidence that Harvest had acted in accordance with its fiduciary duties when it assigned Conlon’s notes to Springfield Oil. The court further found that Springfield Oil had demonstrated by clear and convincing evidence that Harvest had acted in accordance with its duties as a fiduciary in assigning Conlon’s promissory notes to its affiliate, Springfield Oil. The court reasoned, in reliance on Konover Development Corp. v. Zeller, 228 Conn. 206, 635 A.2d 798 (1994), that because Conlon was a sophisticated securities trader and because Salisbury was obligated to pay Springfield Oil $2.1 million for its drilling services, an obligation that had been previously disclosed to Conlon, Harvest’s assignment of Conlon’s notes to Springfield Oil in satisfaction of that obligation did not constitute a breach of fiduciary duty. The court further found that the consideration was shown to be adequate because the venture presented the hope of a share in successful oil and gas wells, along with an extremely advantageous tax advantage even if the drilling proved unsuccessful. Finally, the court concluded that Conlon’s special defenses had no merit because Harvest fully discharged its fiduciary duty by disclosing its affiliation with Springfield Oil and the terms of the drilling contract and because Harvest’s failure to keep adequate records did not create the liability for the cost of drilling the wells. This appeal followed. Additional facts will be set forth where necessary.

Conlon claims that the court improperly found that the fairness of Harvest’s 1989 assignment of the notes to Springfield Oil was proven by clear and convincing evidence. We agree.

Conlon’s claim requires us to review a finding of fact. “The standard of review with respect to a court’s findings of fact is the clearly erroneous standard. The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. . . . We cannot retry the facts or pass on the credibility of the witnesses. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed . . . .” (Internal quotation marks omitted.) Blitz v. Subklew, 74 Conn. App. 183, 186, 810 A.2d 841 (2002).

In determining whether the court’s finding was clearly erroneous, we must examine that finding in the context of the heightened standard of proof imposed on a fiduciary. See Spector v. Konover, 57 Conn. App. 121, 127, 747 A.2d 39, cert. denied, 254 Conn. 913, 759 A.2d 507 (2000). On appeal, Springfield Oil does not dispute that Harvest, as the general partner of Salisbury, was a fiduciary.

“Once a [fiduciary] relationship is found to exist, the burden of proving fair dealing properly shifts to the fiduciary.” (Internal quotation marks omitted.) Konover Development Corp. v. Zeller, supra, 228 Conn. 219. “Furthermore, the standard of proof for establishing fair dealing is not the ordinary standard of proof of fair preponderance of the evidence, but requires proof either by clear and convincing evidence, clear and satisfactory evidence or clear, convincing and unequivocal evidence.” (Internal quotation marks omitted.) Id., 229-30. That burden of persuasion is sustained if the evidence “induces in the mind of the trier a reasonable belief that the facts asserted are highly probably true, that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist.” (Internal quotation marks omitted.) Parker v. Slosberg, 73 Conn. App. 254, 264, 808 A.2d 351 (2002).

Accordingly, in the present case, Springfield Oil, because it is the assignee of Harvest, which was a fiduciary of the partnership, had the burden to prove, by clear and convincing evidence, that Harvest dealt fairly with Conlon when it assigned his notes to Springfield Oil. We must determine whether the court properly found that Springfield Oil met that burden by clear and convincing evidence.

In the present case, the court relied on Konover Development Corp. v. Zeller, supra, 228 Conn. 228, in finding that Harvest’s assignment of Conlon’s notes to Springfield Oil was fair. In Zeller, our Supreme Court held that “in certain circumstances a fiduciary may demonstrate that a particular transaction is fair by showing (1) that the fiduciary made a free and frank disclosure of all the relevant information he had, (2) that the consideration was adequate, (3) that the principal had competent and independent advice before completing that transaction, and (4) the relative sophistication and bargaining power among the parties.” Spector v. Konover, supra, 57 Conn. App. 128-29.

“The Zeller standard effectively preserves the heightened standards required of fiduciaries while allowing parties in a fiduciary relationship the flexibility to contract freely among themselves. The standard articulated in Zeller is most appropriately applied in situations where a principal challenges the fairness of a particular transaction in which both the principal and the fiduciary made a fully informed decision to act in a manner that is seemingly contrary to the normal fiduciary relationship. Implicit in the Zeller standard is the requirement that the principal consent to the transaction carried out by the fiduciary. To invoke the Zeller standard in an attempt to justify the fairness of a particular transaction, the fiduciary must first be able to show that there was some agreement among the parties allowing the fiduciary to act in a manner that may otherwise be a breach of fiduciary duty.” (Emphasis added.) Id., 129.

In the present case, there was an agreement between Harvest and Conlon that Salisbury would contract with Harvest’s affiliate, Springfield Oil, to perform drilling services and that Salisbury would compensate Springfield Oil for those services. Springfield Oil failed, however, to offer any evidence of an agreement allowing Harvest to assign the entirety of the partnership’s assets to its affiliate, Springfield Oil, in satisfaction of Salisbury’s debt to Springfield Oil, upon dissolution of the partnership without a valuation of the partnership assets, a netting of the value of the assets of the partnership against its liabilities and an accounting to the limited partners.

On the contrary, article IX of the Salisbury partnership agreement expressly stated that upon liquidation and dissolution of the partnership, the general partner shall “[a]s promptly as possible after dissolution, cause a final statement of account to be prepared, which shall show with respect to each Partner the status of such Partner’s Capital Account and the amount, if any, owing to the Partnership . . . [determine the interest of the Partnership in each Partnership oil, gas and other mineral property .... [determine the value of the Partnership properties using appraisal techniques which he deems to be appropriate, taking into account the nature of the property interests and their potential for future recovery of reserves and shall further determine the salvage value of all equipment on such property . . . .” The partnership agreement further states that the general partner “shall [s]ell or otherwise dispose of all assets of the Partnership for cash or on the best terms available to the fullest extent the [general partner] deems such disposition necessary to pay all Partnership debts or as otherwise may be in the best interests of all Partners.” (Emphasis added.)

Even under the Zeller standard, Springfield Oil failed to establish that Harvest acted fairly in assigning Con-Ion’s notes to Springfield Oil because it failed to demonstrate that Harvest made a full and frank disclosure of all of the relevant information regarding the assignment and because it failed to demonstrate that the consideration was adequate.

The court found, in reliance on Zeller, that Springfield Oil had proved by clear and convincing evidence that Harvest’s fiduciary duty was discharged because Conlon was sophisticated and because Harvest had made full disclosure of “the relationship and terms that have resulted in the assignment” of Conlon’s notes to Springfield Oil. That finding is problematic for two reasons. First, it seems to imply that the assignment was appropriate because it was reasonable for Harvest to assign a partnership asset in payment of a partnership debt. Under Zeller, however, the fiduciary, Harvest, had a “duty to deal fairly with [Conlon], not simply to act reasonably . . . .” Konover Development Corp. v. Zeller, supra, 228 Conn. 221. The assignment might have been fair if Harvest had assigned only the notes, or if it had assigned the notes in combination with other assets, provided the combined value of the assignment did not exceed the amount of the debt, which was $2.1 million. Here, however, Harvest assigned to its affiliate, Springfield Oil, two assets, namely, the notes and the drilling rights to the wells. The drilling rights were a partnership asset that was never listed on Salisbury’s balance sheet and, as best as we can tell, was never valued, even at the time of dissolution.

Second, the court’s finding seems to imply that because Conlon was sophisticated and because he knew that Springfield Oil, Harvest’s affiliate, would be doing the drilling and would be compensated by the partnership for those services and chose to invest in the partnership anyway, Harvest owed Conlon some lesser duty with respect to transactions involving the turnkey contract. Such a finding, however, contravenes Zeller, which reasoned that a general partner’s fiduciary duty is an ongoing duty, and extends to all decisions that have “adverse, concrete financial consequences that [flow] foreseeably and directly from that decision . . . .” Id., 222. By agreeing to the terms of the turnkey contract between Harvest and Springfield Oil, Conlon did not agree to give Harvest carte blanche in its dealings with Springfield Oil. The terms of a limited partnership agreement cannot negate the fiduciary duty of the general partner even where the relationship and terms of a contract between the fiduciary and its affiliate are disclosed and even where the partnership involves sophisticated parties. See id., 226. Furthermore, Zeller requires more than a disclosure of the relationship and terms underlying the transaction. Zeller requires that the fiduciary make a free and frank disclosure of all the relevant information it has about the particular transaction. Id., 228. In this case, the particular transaction at issue was not Conlon’s decision to become a limited partner in Salisbury. The particular transaction at issue was the dissolution of the partnership and the consequent assignment of the notes and drilling rights, without an accounting to the limited partners.

We conclude that Springfield Oil did not demonstrate by clear and convincing evidence that Harvest’s assignment of Conlon’s notes to Springfield Oil was fair because Harvest did not make a free and frank disclosure to Conlon of all relevant information regarding the assignment at the time of dissolution. Harvest assigned the notes and drilling rights, yet it failed to appraise or to otherwise set a value for the drilling rights that were, in addition to the notes of the limited partners, an asset of the partnership that could have been used to offset Salisbury’s debt to Springfield Oil. Harvest also failed to provide Conlon with an accounting after dissolution.

Springfield Oil also did not demonstrate that the compensation that Harvest gave to Springfield Oil in satisfaction of Salisbury’s debt was adequate. The court found that Harvest discharged its fiduciary duty by using the notes as a partnership asset solely to fulfill a partnership obligation that was clearly identified in the private placement memorandum. The problem with that finding is that because there was no valuation of the drilling rights, or an accounting, either before or after dissolution, the court had no way of determining the extent of that obligation. Although the court emphasized the fact that both the relationship between Harvest and Springfield Oil and the terms of the turnkey contract had been fully disclosed to Conlon before he entered into the partnership, that fact alone is not decisive in determining that the transaction was fair.

Karlik testified that the assets of the partnership were exceeded by its liabilities and that the only real asset that the partnership had at the time of dissolution was the notes of the limited partners. He stated that although the rights to the wells also were an asset, those rights were of “little value.” To accept Karlik’s seemingly unsupported testimony that the drilling rights had little value would, however, inappropriately shift the burden of proving adequate consideration from the fiduciary to Conlon. Furthermore, the fact that the drilling rights had “little value” implies that they had, at least, some value and, accordingly, the drilling rights should have been appraised and Harvest should have accounted for their value at the time of dissolution.

The drilling rights to the wells were, however, never appraised or valued. That fact is important because any value realized upon the sale or other disposition of the drilling rights should have been used to offset Salisbury’s debt to Springfield Oil before it could fairly demand any payment from Conlon. Other than Karlik’s testimony, Springfield Oil offered no proof as to what the drilling rights to the wells were worth at the time that the partnership was dissolved. The balance sheet of Salisbury, which Springfield Oil adduced at trial, showed only the amount of receivable sales that the wells had generated for a specific period of time. The balance sheet did not contain an entry that showed the value of the drilling rights to the wells as an asset in and of themselves.

Moreover, one of the options offered to Conlon in the October 20, 1989 letter that Harvest sent to Conlon was that Conlon could execute a new promissory note, payable to Springfield Oil, in the amount of $22,500 along with a fifteen year assignment of production income. The fact that Springfield Oil made that option contingent on Conlon executing an assignment of production income demonstrates that Harvest anticipated that there would be future production from the wells. In fact, Karlik conceded at trial that Harvest anticipated that there would be “some” production. Additionally, there also was no proof that either the rights to the wells, or the promissory notes of the limited partners, were disposed of on the best terms possible or in the best interests of all of the partners, as required by the partnership agreement. For instance, Harvest originally had made Conlon an offer of compromise, but then assigned Conlon’s promissory notes to Springfield Oil at full value. In other words, there is no evidence that indicates that Harvest attempted to bargain down Salisbury’s debt to Springfield Oil.

Additionally, the sales generated from the oil and gas production from the wells was intended to be used, in part, to pay off, or at least pay down, the notes of the limited partners. Although Karlik testified that the value of the wells was diminished because production was down to a trickle, there was no supporting evidence as to the amount of oil and gas that the wells had produced for the last three years of the partnership’s existence because Springfield Oil did not have production reports for 1986 through 1989, inclusive. Furthermore, the reports for the years 1981 through 1985 that were introduced at trial did not necessarily paint a true picture of production and sales because the reports themselves indicated that Salisbury was having difficulty getting the drillers and purchasers to report. None of the documentation introduced at trial indicate that the reporting problems were rectified prior to dissolution. Accordingly, Salisbury may have made sales that were never posted or otherwise used to offset Conlon’s liability to the partnership.

Finally, Springfield Oil makes much of Conlon’s silence and acquiescence in the face of Harvest’s written proposal to dissolve and offer to compromise. The partnership agreement, however, did not require Conlon to demand an accounting upon dissolution. Article IX expressly required that upon “dissolution . . . the [general partner] shall . . . cause a final statement of account to be prepared, which shall show with respect to each Partner the status of such Partner’s Capital Account and the amount, if any, owing to the Partnership . . . .” Furthermore, it was Springfield Oil’s burden to prove by clear and convincing evidence fair consideration for the assignment of the notes upon dissolution. “[C]lear and convincing proof is a standard frequently imposed in civil cases where the wisdom of experience has demonstrated the need for greater certainty . . . .” (Internal quotation marks omitted.) Schaffer v. Lindy, 8 Conn. App. 96, 104, 511 A.2d 1022 (1986). Such a heightened burden of proof cannot be met by Conlon’s silence.

On the basis of our examination of all of the evidence, we are left with the definite and firm conviction that a mistake has been made with regard to the court’s finding that Springfield Oil proved by clear and convincing evidence that Harvest’s assignment of Conlon’s notes to Springfield Oil, in partial satisfaction of Salisbury’s debt to Springfield Oil, was fair. Therefore, the defendant was entitled to prevail on his special defense that Harvest breached its fiduciary duties to the limited partners in assigning the notes.

The judgment is reversed and the case is remanded with direction to render judgment in favor of the defendant.

In this opinion the other judges concurred.

       Although Conlon also claims on appeal that the court improperly failed to find that because the exploration and drilling contract at issue was executed by an unauthorized party, it could not be enforced, Conlon made no attempt to raise that issue by pleading or by evidence at trial. It was called to the court’s attention for the first time by way of Conlon’s posttrial brief and, consequently, the court did not address that issue in its memorandum of decision. Accordingly, we decline to review the claim. See Practice Book §§ 5-2 and 60-5; see also Boxed Beef Distributors, Inc. v. Rexton, Inc., 7 Conn. App. 555, 558, 509 A.2d 1060 (1986) (trial court correctly did not consider claim first brought to its attention by way of posttrial brief).

       Bentley Blum is the sole shareholder of both Harvest and Springfield Oil. The two companies have the same officers and business address.

       For each $700,000 installment, Salisbury was to pay Springfield Oil $235,000 in cash and give Springfield Oil an interest bearing promissory note for $465,000. The $235,000 cash portion of each installment was to bo paid from the cash contributed by the limited partners. The court found that, according to Salisbury’s financial records, $64,667.10 was paid on the turnkey contract in 1991 and that no payments were made in 1992 or 1993.

       Each of the K-1 forms introduced at trial showed a loss.

       Conlon originally filed five special defenses. Before trial, he withdrew his fifth special defense, which alleged that Springfield Oil's claim was barred by the applicable statute of limitations.

       See General Statutes § 42a-3-301 et seq.

       The private placement memorandum, closing documents and partnership agreement were all admitted as full exhibits at trial.

       The 1985 report did not include production figures for the entire year. It reflected production for the period January 1 to June 30, 1985.

       The balance sheet contained an entry entitled, “A/R oil and gas.”

       Springfield Oil was one of those drillers.


source: Caselaw Access Project

author: FLYNN, J.

license: Public Domain

text:
    JAMES FRIEDMAN v. MERIDEN ORTHOPAEDIC GROUP, P.C., ET AL.
    (AC 21841)
    Lavery, G. J., and Dranginis and Flynn, Js.
    Argued October 28, 2002
    officially released June 10, 2003

      Joel T. Faxon, with whom was Carey B. Reilly, for the appellant (plaintiff).

      David J. Robertson, with whom, on the brief, were Madonna A. Sacco and Catherine L. Creager, for the appellees (named defendant et al.).
   Opinion

FLYNN, J.

In this medical malpractice action, the plaintiff, James Friedman, appeals from the judgment of the trial court, rendered after a jury verdict for the defendants Meriden Orthopaedic Group, P.C., and Paul Zimmering, a surgeon who was employed by the defendant corporation. Specifically, the plaintiff claims that the court improperly found that he failed to lay an adequate foundation to admit the portion of the deposition testimony of a board certified neuroradiologist regarding the standard of care applicable to an orthopedic surgeon. We affirm the judgment of the trial court.

The following facts are relevant to this appeal. The plaintiff injured his lower back during a football game sometime in October, 1992. The plaintiff consulted Zimmering, a board certified orthopedic surgeon, who diagnosed the plaintiff as having a herniated disc, which Zimmering recommended be surgically removed. The plaintiff agreed. When the plaintiff awoke from surgery, he reported numbness in his genital and anal region. Zimmering informed the plaintiff that he had touched one of the plaintiff’s nerve roots during the surgery. This occurred during Zimmering’s use of electrocautery to stop the plaintiff’s bleeding. Zimmering stated that he had encountered the nerve in the operative field at approximately the same time that he realized the plaintiff had spina bifida occulta (SBO). SBO is a common congenital anomaly of the sacral spine. In the plaintiff’s case, his condition resulted in a fifteen millimeter gap in the bony protective covering of his spinal column.

Before the surgery, Zimmering had taken plain X rays of the plaintiffs back, including the region where the SBO was located. At trial, Zimmering testified that he read those X rays himself and did not find them positive for SBO or other anomalies. Zimmering further testified that he was familiar with diagnosing SBO on X rays and, in fact, had diagnosed SBO in other patients. He also testified that he would be looking for SBO in a preoperative workup of a patient and if he had detected SBO on the plaintiffs X rays, he would have noted it in his office notes. The plaintiffs X rays were missing at the time of trial. The plaintiff presented the testimony of Avi Bernstein, a physician who stated that an orthopedic surgeon needed to be aware of SBO before surgery in order adequately to protect exposed nerve roots. Zimmering performed a second surgery on the plaintiff to decompress disks and to explore the spinal nerves.

The plaintiffs neive injury is called cauda equina syndrome. This resulted in the plaintiffs permanent bowel, bladder and sexual dysfunction. The plaintiffs complaint included, inter alia, allegations that his cauda equina syndrome was caused by Zimmering’s failure to diagnose the plaintiffs SBO condition and consequently causing damage to the nerve roots during surgery.

The plaintiff claims that the court improperly excluded the testimony of Barry Pressman, one of his experts. On January 2,2001, only three weeks before the trial started, the plaintiff disclosed Pressman, a board certified neuroradiologist, as an expert witness. Four days after the opening statements, Pressman’s testimony was videotaped because he was not able to testify in person. Approximately two weeks after opening statements, outside the presence of the jury, the court reviewed Pressman’s testimony and ruled on Zimmering’s objections to various questions. Zimmering objected to a portion of Pressman’s testimony concerning the reading of X ray films for the presence of SBO. Zimmering objected because it was not established in the testimony whether Pressman was referring to the standard of care applicable to a board certified diagnostic neuroradiologist or to an orthopedic surgeon reading an X ray.

The court sustained the objection with respect to that portion of Pressman’s testimony. The court stated that General Statutes § 52-184c requires that an expert witness in a medical malpractice case “possess a sufficient training, experience and knowledge as a result of practice or teaching in a related field of medicine so as to be able to provide such expert testimony as to the prevailing professional status of care given in a field of medicine. And as counsel had indicated, the given field of medicine here is an orthopedist’s reading of X rays. And in his answer, it is clear that [Pressman] is answering not as a radiologist who knows what the standard of care is for an orthopedist reading X rays, but instead talks about and refers to his training as the colloquial ‘we. ’ Had it been pursued and indicated it was some kind of general training and not training specific to him as a neuroradiologist, the question may have been able to stand with the answer. But without it being pursued it could mislead the jury to believe that that is the specific training of an orthopedist when the evidence doesn’t suggest it.” The court continued and stated: “The foundation is not properly laid for whether this neuroradiologist can testify as to the standard of care that an orthopedist reading an X ray would have exercised in regard to these questions.”

On February 13, 2001, the plaintiff called Zimmering to testify in an attempt to lay the foundational element missing from Pressman’s testimony. The court stated: “Pressman still does not comply with § 52-184c, the utilization of Dr. Zimmering for that purpose the court finds inadequate because [Zimmering] can’t put himself in the place or mind of a board-certified radiologist in terms of whether that doctor giving an opinion as to the standard of care is giving an opinion as to the standard of care for a board certified radiologist versus a similar health care provider to Dr. Zimmering, which would be a radiologist.” On February 13, 2001, the testimony of Pressman, except for the excluded portions, was read to the jury.

The plaintiff later asked the court to articulate the basis of the exclusion of the testimony. The court replied that “it has not been established that the opinions [Pressman] gave in regard to the reading of [SBO] on the preoperative X rays were and as to the standard of care in regard to that, putting in plain language, it was his opinion that it should have been seen, that [SBO] was there.

“It was not laid as a foundation and a qualification whether [Pressman] was indicating that it should have been seen by someone such as himself. He in fact colloquially referred to as we at one point in his testimony as a board-certified diagnostic radiologist which is not the standard that Dr. Zimmering in fact is held to under 52-184c (b) because Dr. Zimmering is a board certified orthopedic surgeon and in all of his other work, for instance the surgery, he is held to the standard of a board certified orthopedic surgeon, but in his work reading as a radiologist, the court finds under subsection (b) that he is held to a lesser standard, that basically of a similar health care provider, which in this instance would be, for a lack of a better way to put it, plain old radiologist to distinguish from a board certified diagnostic radiologist and there is no foundation laid that the opinion offered by Dr. Pressman regarding to the reading of those plain X rays, the AP X rays, was the standard of care for a ‘plain old radiologist’ to be distinguished from what he was testifying as and that he is a board certified diagnostic radiologist.”

On the same day, the plaintiff requested an opportunity to conduct a telephone deposition of Pressman. The defendants objected on numerous grounds, including the facts that closing arguments were scheduled for the following day, that Pressman would not be available until 9 or 10 p.m. that evening, and that the defendants had a right to be present at any deposition. The court sustained this objection and the plaintiff does not claim on appeal that the court abused its discretion in doing so. On February 16, 2001, the jury returned a verdict in favor of the defendants. This appeal followed.

We begin by discussing the standard of review of a court’s decision to exclude portions of a witness’ expert testimony. “A trial court’s decision on whether to impose the sanction of excluding the testimony of a party’s expert witness rests within the court’s sound discretion. . . . The action of the trial court is not to be disturbed unless it has abused its broad discretion, and in determining whether there has been such abuse every reasonable presumption should be made in favor of its correctness.” (Citations omitted.) Pool v. Bell, 209 Conn. 536, 541, 551 A.2d 1254 (1989); see also Gaudio v. Griffin Health Services Corp., 249 Conn. 523, 548-49, 733 A.2d 197 (1999). “There are no precise facts that must be proved before an expert’s opinion may be received in evidence. . . . Rather, it is largely a matter of judicial discretion as to whether a witness has been shown to have sufficient experience and opportunity of observation to render his opinion.” (Citation omitted; internal quotation marks omitted.) Hammer v. Mount Sinai Hospital, 25 Conn. App. 702, 718, 596 A.2d 1318, cert. denied, 220 Conn. 933, 599 A.2d 384 (1991).

The defendants first claim that this court should not review the plaintiffs appeal because the plaintiff has failed to brief his claim of error adequately according to Practice Book § 67-4 (d)(3). Specifically, the defendants argue that the plaintiff did not include a verbatim statement of the objection and the ground on which the evidence was claimed to be admissible. The defendants are correct that the plaintiff has not complied with our appellate mies. This court can decline to address evidentiary claims that are inadequately briefed; see Matto v. Dermatopathology Associates of New York, 55 Conn. App. 592, 596-97, 739 A.2d 1284 (1999); however, the plaintiff has supplied the necessary transcript, and this court, following a thorough review of the transcript, is able to discern which objections the plaintiff is challenging.

The plaintiffs claim that the court improperly precluded portions of Pressman’s testimony is based on the constmction of General Statutes § 52-184c. Specifically, the plaintiff argues that Pressman’s testimony was admissible under § 52-184c (d). We, therefore, must first analyze the statute to ascertain whether Pressman’s testimony was admissible. Our review of a court’s construction of a statute is plenary. See Morrison v. Parker, 261 Conn. 545, 548, 804 A.2d 777 (2002). In doing so, “we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Internal quotation marks omitted.) Ambroise v. William Raveis Real Estate, Inc., 226 Conn. 757, 764, 628 A.2d 1303 (1993).

We first look at the statutory language. Subsection (a) of the statute incorporated our then existing common law by providing that it was the plaintiffs burden to prove a “breach of the prevailing professional standard of care” applicable to the physician being sued. See Cross v. Huttenlocher, 185 Conn. 390, 393, 440 A.2d 952 (1981). Subsection (a) also codified then existing common law by providing: “The professional standard of care for a given health care provider shall be that level of care, skill and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers.” See Marshall v. Yale Podiatry Group, 5 Conn. App. 5, 7, 496 A.2d 529 (1985) (standard of care for surgeons is that of those in same general neighborhood and in same general line of practice which they ordinarily exercise in similar cases).

For Pressman to have been allowed to testify regarding the standard of care of an orthopedic surgeon such as Zimmering, he would have to have qualified under either statutory subsections (b), (c) or (d). Pressman did not qualify under § 52-184c (b) because that subsection applies only if the defendant health care provider, Zimmering, was not board certified as a specialist, was not trained and experienced in a medical specialty, or did not hold himself out as a specialist. General Statutes § 52-184c (b). Because Zimmering was a board certified orthopedic surgeon, this subsection was not applicable.

Pressman’s testimony was also not admissible under § 52-184c (c). This subsection requires that if the defendant health care provider has a specialty, then an expert witness may testify only if he is trained, experienced and board certified in the same specialty as the defendant. General Statutes § 52-184c (c). Because Zimmering was a boar d certified orthopedic surgeon, while Pressman was a board certified neuroradiologist, § 52-184c (c) is not applicable. Furthermore, Zimmering did not provide treatment to the plaintiff that was outside his specialty to satisfy the remaining alternative provided in subsection (c).

The only remaining statutory alternative, therefore, under which Pressman could have qualified to render an opinion as to the standard of care of an orthopedic surgeon would be § 52-184c (d). Because Pressman did not qualify as a similar health care provider under subsections (b) or (c), he had to meet the criteria of subsection (d) (2), which provides in relevant part that he must, “to the satisfaction of the court, [possess] sufficient training, experience and knowledge as a result of practice or teaching in a related field of medicine, so as to be able to provide such expert testimony as to the prevailing professional standard of care in a given field of medicine. . . .” Section 52-184c (d) addresses “overlap” areas among the different fields of medicine.

The legislative history of § 52-184c fails to provide us with further context for the plain meaning of the statute. However, the purpose and policy underlying the statute was to codify who might testify on the prevailing professional standard of care in actions against health care providers. The statute’s title and contents are directed solely to that subject matter. Subdivision (2) of § 52-184c (d) seems to deal with situations where specialties overlap, provided the party offering the witness’ testimony establishes to the satisfaction of the court that he “possesses sufficient training, experience and knowledge ... in a related field of medicine, so as to be able to provide such expert testimony as to the prevailing professional standard of care in a given field of medicine. . . .” General Statutes § 52-184c (d) (2).

Such a construction of the statute is consistent with prior common-law principles. The common law permitted physicians acting in a different specialty to testify as to the standard of car e in the defendant’s specialty as long as they knew what constituted the standard of care for the specialty about which he was called to testify. See Fitzmaurice v. Flynn, 167 Conn. 609, 618, 356 A.2d 887 (1975); Ardoline v. Keegan, 140 Conn. 552, 557, 102 A.2d 352 (1954). Our case law has recognized that there are overlaps where artificial lines that demarcate one specialty from another dissolve when certain procedures or diagnoses are involved. See Marshall v. Hartford Hospital, 65 Conn. App. 738, 758, 783 A.2d 1085, cert. denied, 258 Conn. 938, 786 A.2d 425 (2001).

We therefore differ with the court in its interpretation of § 52-184c when it issued its articulation on its ruling precluding portions of Pressman’s testimony. In our opinion, subsection (b) of that statute is not applicable to Pressman’s testimony because it expressly applies only to defendant health care providers who, unlike Zimmering, are not board certified specialists, not trained or experienced in a specialty or do not hold themselves out as specialists. This court, however, is “authorized to rely upon alternative grounds supported by the record to sustain a judgment. . . . Where the trial court reaches a correct decision but on mistaken grounds, this court has repeatedly sustained the trial court’s action if proper grounds exist to support it.” (Citation omitted; internal quotation marks omitted.) Kelley v. Bonney, 221 Conn. 549, 592, 606 A.2d 693 (1992). There is no reason to depart from this principle in this case. This is so because prior to its articulation, the court issued a ruling on the record concerning the defendants’ objections to Pressman’s testimony. That ruling is completely consistent with § 52-184c (d) and prior case law.

In Pool v. Bell, supra, 209 Conn. 542, our Supreme Court squarely addressed situations in which a physician in one specialty is called to testify as to the professionai standard of care applicable to another specialty. “The witness must demonstrate a knowledge acquired from experience or study of the standards of the specialty of the defendant physician sufficient to enable him to give an expert opinion as to the conformity of the defendant’s conduct to those particular standards, and not to the standards of the witness’ particular specialty if it differs from that of the defendant. . . . Without ruling on the correctness of the overlap standard . . . the crucial question is whether . . . [the expert] knows what . . . [the standards of practice] are.” (Citations omitted; emphasis added; internal quotation marks omitted.) Id.

The plaintiff claims that the court excluded portions of Pressman’s testimony because “he was incompetent to testify regarding the standard of care applicable to [the defendants] when he read the X rays that he took of [the plaintiffs] lower back.” This part of Pressman’s testimony was excluded properly and its exclusion was not an abuse of the court’s discretion because there was an inadequate foundation as to whether Pressman knew what the standard of care was for orthopedic surgeons when reading plain X rays and whether he was holding Zimmering to that standard and not some different one applicable to his distinct specialty. The excluded portions dealt with Pressman’s opinion concerning the standard of care that Zimmering should have exercised when reading the plaintiffs X rays. The court concluded that it was not clear that Pressman was testifying about the standard of care that an orthopedic surgeon would be expected to achieve when interpreting the X rays, and, therefore, those portions were redacted from the deposition which was read.

Pressman’s testimony was excluded properly because it is unclear from the record whether he was testifying as to a standard of care expected of a board certified neuroradiologist, his own field, or an orthopedie surgeon reading plain X rays, the defendant’s specialty. The foundation question simply was never asked to Pressman concerning which standard of care was applicable to Zimmering. In discussing the standard, Pressman used the word “we” and the antecedent of that pronoun was not known. It was, therefore, impossible to know whether he was referring to a standard for a neuroradiologist or for an orthopedic surgeon or both.

The record reveals that Pressman never stated that he was testifying as to the standard of care applicable to an orthopedic surgeon. The court, therefore, did not abuse its discretion by excluding those portions of Pressman’s testimony concerning the standard of care that is applicable to orthopedic surgeons when reading plain X rays.

The judgment is affirmed.

In this opinion the other judges concurred.

       Plain X rays differ from other diagnostic tests such as a magnetic resonance imagining (MRI) or computerized axial tomography (CAT) scan. An X ray is defined as “A high-energy electromagnetic wave varying in length from 0.05 to 100 angstrom units. X rays are produced by bombarding a target in a vacuum tube with high-velocity electrons. Because of their ability to penetrate most solid matter to some extent and to act on photographic film, they are used both in diagnosis and therapy.” Am. Jur., Proof of Facts 3d, pp. 2029-30 (16th Ed. 1989).
      An MEI, also know as nuclear magnetic resonance imagining, is described by the following language. “When certain atomic nuclei with an odd number of protons or neutrons or both are subjected to a strong magnetic field, they absorb and re-emit electromagnetic energy. Analysis of the net magnetization vector’s deflection by application of a radiofrequency pulse provides image information. This technique is valuable in providing images of the heart, large blood vessels, brain, and soft tissues.” Id., 1152, 1226.
      A CAT scan is defined as the “[u]se of a computer to produce, from X ray data, a cross-sectional view of the anatomical part being investigated.” Id., 307.

       According to the plaintiffs brief, a neuroradiologist is a board certified radiologist with an added certified qualification in neuroradiology.

       Practice Book § 67-4 (d) (3) provides: “When error is claimed in any evidentiary ruling in a court or jury case, the brief or appendix shall include a verbatim statement of the following: the question or offer of exhibit; the objection and the ground on which it was based; the ground on which the evidence was claimed to be admissible; the answer, if any; and the ruling.”

       General Statutes § 52-184c provides in relevant part: “(a) In any civil action to recover damages resulting from personal iryury or wrongful death ... in which it is alleged that such injury or death resulted from the negligence of a health care provider . . . the claimant shall have the burden of proving by the preponderance of the evidence that the alleged actions of the health care provider represented a breach of the prevailing professional standard of care for that health care provider. The prevailing professional standard of care for a given health care provider shall be that level of care, skill and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers.
      “(b) If the defendant health care provider is not certified by the appropriate American board as being a specialist, is not trained and experienced in a medical specialty, or does not hold himself out as a specialist, a ‘similar health care provider’ is one who: (1) Is licensed by the appropriate regulatory agency of this state or another state requiring the same or greater qualifications; and (2) is trained and experienced in the same discipline or school of practice and such training and experience shall be as a result of the active involvement in the practice or teaching of medicine within the five-year period before the incident giving rise to the claim.
      “(c) If the defendant health care provider is certified by the appropriate American board as a specialist, is trained and experienced in a medical specialty, or holds himself out as a specialist, a ‘similar health care provider’ is one who: (1) Is trained and experienced in the same specialty; and (2) is certified by the appropriate American board in the same specialty; provided if the defendant health care provider is providing treatment or diagnosis for a condition which is not within his specialty, a specialist trained in the treatment or diagnosis for that condition shall be considered a ‘similar health care provider’.
      “(d) Any health care provider may testify as an expert in any action if he: (1) Is a ‘similar health care provider’ pursuant to subsection (b) or (c) of this section; or (2) is not a similar health care provider pursuant to subsection (b) or (c) of this section but, to the satisfaction of the court, possesses sufficient training, experience and knowledge as a result of practice or teaching in a related field of medicine, so as to be able to provide such expert testimony as to the prevailing professional standard of care in a given field of medicine. . . .”


author: LAVERY, C. J.

text:
    CARL BRINSON v. FINLAY BROTHERS PRINTING COMPANY ET AL.
    (AC 22506)
    Lavery, C. J., and Schaller and West, Js.

      Argued January 16
    officially released June 10, 2003

      Dominick C. Statile, for the appellants (defendants).

      Leonard B. Bren, for the appellee (plaintiff).
   Opinion

LAVERY, C. J.

The defendants, Finlay Brothers Printing Company (Finlay Printing) and Atlantic Mutual Insurance Company, appeal from the decision of the workers’ compensation review board (board) affirming the October 11, 2000 finding and award of the workers’ compensation commissioner for the first district, in which the commissioner reversed the approval of a properly filed form 36, and found that the plaintiffs fibromyalgia arose out of and in the course of his employment and restricted his work capacity to four hours per day. On appeal, the defendants claim that the board improperly affirmed the commissioner’s finding and award because the commissioner improperly (1) reversed the approval of a properly filed form 36, (2) considered evidence that was not in existence at the time the form 36 was approved and (3) reinstated temporary partial benefits retroactive to July 7,1997, when there was no evidence in the record documenting any fibromyalgia related work restrictions until March 26, 1999. We affirm the decision of the board.

The following facts and procedural history are relevant to our resolution of the defendants’ appeal. The plaintiff was employed as an offset stripper in the printing business by Finlay Printing beginning in May, 1993. His job involved careful, tedious work and required him to bend over a light table repeatedly to check the registration of multiple layers of film. On September 24, 1996, the plaintiff reported work-related injuries to his neck and lower back. The plaintiffs injuries were not the result of a particular traumatic event, but were an accumulation of neck and back problems caused by his work. The defendants accepted the plaintiffs injuries as injuries that arose out of and during the course of the plaintiffs employment. After missing work because of his injuries, the plaintiffs treating physician, Thomas Barber, returned the plaintiff to work on a part-time basis beginning on February 10, 1997. At the request of Atlantic Mutual Insurance Company, Steven Selden, an orthopedic surgeon, performed an independent medical examination on April 1,1997. Selden was of the opinion that the plaintiff could return to work full-time. On the basis of Selden’s report, the defendants, on April 25, 1997, filed a form 36 seeking to discontinue the plaintiffs temporary partial benefits. After an informal hearing, Commissioner Michael S. Miles approved the defendants’ form 36 on July 9,1997, thereby discontinuing the plaintiffs temporary partial benefits.

Meanwhile, on May 27, 1997, Barber reported that the plaintiff “continues to have significant pain,” but nevertheless “suggested to [the plaintiff that] ... he needs to get back to work full-time as best as possible.” Barber gave the plaintiff a work slip to return to work eight hours a day starting June 1, 1997. By the middle of June, 1997, Barber had returned the plaintiff to four hour work restrictions because of the pain the plaintiff was experiencing. Barber noted: “I am at a loss to do anything further with [the plaintiff] because he has had such severe pain, and we have done everything conservatively that we know how to do. I am going to send him over to the spine surgeons and see if they have other options for him.” Barber referred the plaintiff to Charles Kime, an orthopedic surgeon.

The plaintiff continued to seek medical treatment for his pain, and was referred to and examined by various physicians, including Kime, W. Jay Krompinger, an orthopedic surgeon, and Ralph Stocker, a board certified internist and rheumatologist. On May 15, 2000, a formal hearing was held before Commissioner Jesse M. Frankl (trial commissioner). On October 11, 2000, the trial commissioner issued a finding and award. In the finding and award, the trial commissioner determined that the plaintiff suffered from fibromyalgia, which arose out of and during the course of his employment. The trial commissioner also found that the fibromyalgia restricted the plaintiffs work capacity to four hours per day. The trial commissioner reversed the approval of the form 36, having found that the form 36 should not have been approved by Commissioner Miles and that the plaintiff should have been on temporary partial benefits from the time of the approval of the form 36. The trial commissioner ordered the defendants to reinstate the plaintiffs temporary partial benefits retroactive to July 9,1997, the date of the approval of the form 36. The defendants appealed, and the board affirmed the decision of the trial commissioner. This appeal followed. Additional facts will be set forth as necessary.

We first set forth our standard of review in workers’ compensation cases. “As a preliminary matter, we note that when a decision of a commissioner is appealed to the review [board], the review [board] is obligated to hear the appeal on the record of the hearing before the commissioner and not to retry the facts. ... It is the power and the duty of the commissioner, as the trier of fact, to determine the facts. . . . [T]he commissioner is the sole arbiter of the weight of the evidence and the credibility of witnesses . . . .” (Citations omitted; internal quotation marks omitted.) D’Amico v. Dept. of

Correction, 73 Conn. App. 718, 723, 812 A.2d 17 (2002), cert. denied, 262 Conn. 933, 815 A.2d 132 (2003). “The conclusions drawn by [the commissioner] from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” (Internal quotation marks omitted.) Kudlacz v. Lindberg Heat Treating Co., 70 Conn. App. 559, 562, 800 A.2d 560, cert. denied, 261 Conn. 927, 806 A.2d 1059 (2002).

“We will not change the finding of the commissioner unless the record discloses that the finding includes facts found without evidence or fails to include material facts which are admitted or undisputed.” (Internal quotation marks omitted.) Id., 563. Similarly, “[t]he decision of the [board] must be correct in law, and it must not include facts found without evidence or fail to include material facts which are admitted or undisputed.” (Internal quotation marks omitted.) Daubert v. Naugatuck, 71 Conn. App. 600, 607, 803 A.2d 343, cert. granted on other grounds, 261 Conn. 942, 808 A.2d 1135 (2002).

I

The defendants first claim that the board improperly affirmed the trial commissioner’s finding and award because he improperly reversed the approval of a properly filed and approved form 36. Specifically, the defendants argue that because Commissioner Miles acted within his discretion when he approved the form 36 on July 9, 1997, after the informal hearing, the trial commissioner could not reverse the approval of the form 36 after the formal hearing. That argument is without merit.

The parties do not dispute that General Statutes § 31-296 governs the method by which an employer may seek to discontinue benefits to an employee. See also General Statutes §§ 31-296a, 31-300. Section 31-296 provides in relevant part that “[b]efore discontinuing or reducing payment on account of total or partial incapacity .. . the employer, if it is claimed by or on behalf of the injured person that his incapacity still continues, shall notify the commissioner and the employee, by certified mail, of the proposed discontinuance or reduction of such payments, with the date of such proposed discontinuance or reduction and the reason therefor, and, such discontinuance or reduction shall not become effective unless specifically approved in writing by the commissioner. The employee may request a hearing on any such proposed discontinuance or reduction within ten days of receipt of such notice. . . .’’(Emphasis added.)

The board has “interpreted the term ‘hearing’ as used in § 31-296 ... to mean a single emergency informal hearing that should be held as soon as possible after the claimant has objected to the Form 36.” Anguish v. TLM, Inc., 14 Conn. Workers’ Comp. Rev. Op. 195, 197 (1995). The board also has made it clear, however, that the claimant is “entitled to challenge the Form 36 in a subsequent formal hearing.” Id.

The defendants here do not appear to dispute the form 36 procedure, as established by the board, or the plaintiff’s right to request a formal hearing. Instead, the defendants’ argument appears to be that once a commissioner approves a form 36 at an informal hearing, that commissioner’s decision is subject to an abuse of discretion standard, and the trial commissioner at a formal hearing may not reverse the earlier approval of the form 36, as long as there was evidence to support the earlier decision.

The defendants’ argument is wholly contrary to the position of the board, which is that “[t]he initial granting of a Form 36 at an emergency informal hearing pursuant to Stryczek v. State of Connecticut/Mansfield Training School, 14 Conn. Workers’ Comp. Rev. Op. [1995], is not an appealable decision, as it does not create a record that can be reviewed. . . . Instead, the initial ruling on a Form 36 may be challenged at a subsequent formal hearing, at which the previous ruling has no precedential weight. The issue is tried de novo.” (Citation omitted; emphasis added.) DeMartino v. L.G. DeFelice, Inc., No. 3524, CRB-04-97-01 (February 18, 1998), p. 4 n.2; see also Covaleski v. Casual Corner, No. 4419, CRB-01-01-07 (June 27, 2002).

As stated previously, the defendants do not dispute the form 36 procedure or the plaintiffs right to request a formal hearing. Moreover, at oral argument, the defendants conceded that the formal hearing before a trial commissioner is a de novo hearing. Given those facts and the fact that the defendants have not presented us with any support for their claim, we see no reason to interfere with what appears to us to be the board’s reasonable interpretation of § 31-296, and the procedures for the approval and challenge of a form 36. We therefore conclude that the trial commissioner’s reversal of Commissioner Miles’ approval of the form 36 was not improper.

II

The defendants next claim that the trial commissioner improperly considered evidence not in existence at the time Commissioner Miles approved the form 36 at the informal hearing. The defendants assert that Commissioner Miles based his decision to approve the form 36 on evidence that was before him at the time, including Selden’s April 1,1997 report. The defendants argue, essentially, that there was no evidence in existence at that time documenting the plaintiffs work-related fibromyalgia and that the trial commissioner, therefore, improperly considered such evidence at the formal hearing. In other words, the defendants suggest that at the formal hearing, the trial commissioner may consider only evidence that was available at the time the informal hearing was held. We disagree.

As stated previously and as conceded by the defendants, a formal hearing contesting the approval of a form 36 is, essentially, a trial de novo. The issue here is whether evidence may be presented at the formal hearing that was not in existence at the time of the informal hearing. The board has answered that question in the affirmative. See Regs., Conn. State Agencies § 31-279-4; Brinson v. Finlay Bros. Printing Co., No. 4307, CRB-01-00-10 (November 1, 2001); Covaleski v. Casual Corner, supra, No. 4419, CRB-01-01-07. We agree with the board.

It is the clear intent of the legislature that workers’ compensation hearings be conducted in accordance with the rules of equity and in a manner best calculated to ascertain the substantial rights of the parties. See General Statutes § 31-298. “The purpose of the [Worker’s Compensation] [A]ct is to compensate employees for injuries arising out of and in the course of employment . . . .” (Internal quotation marks omitted.) Stickney v. Sunlight Construction, Inc., 48 Conn. App. 609, 617, 711 A.2d 1193 (1998), aff'd, 248 Conn. 754, 730 A.2d 630 (1999). Common sense dictates that injuries are not always quickly or properly diagnosed and that some medical conditions are chronic. It is for those reasons that the legislature has provided that even at the appellate level, the board, in considering an appeal, may consider new or additional evidence that was not apart of the record before the trial commissioner, provided certain conditions are met. See General Statutes § 31-301 (b); Regs., Conn. State Agencies § 31-301-9.

Similarly, we conclude that it is consistent with the legislature’s intent for the trial commissioner to consider all evidence presented at the formal hearing, including evidence that may not have been available at the informal hearing, in making the determination as to whether the claimant is still entitled to benefits, that is, still suffering from an injury that arose out of and in the course of employment. We therefore conclude that the trial commissioner’s consideration of evidence that was not in existence at the time of the informal hearing was not improper.

III

The defendants next claim that the trial commissioner improperly reinstated temporary partial benefits retroactive to July, 1997, when there was no evidence in the record documenting any fibromyalgia related work restrictions until March 26, 1999. In other words, the defendants argue that no physician related the plaintiffs fibromyalgia to his work restrictions until March 26, 1999, and that consequently, the earliest he could have received temporary partial benefits for the fibromyalgia was March 26, 1999.

The defendants’ argument presumes that a physician had to have diagnosed the plaintiffs fibromyalgia and causally related it to the plaintiffs work restrictions before the plaintiff could recover temporary partial benefits for his work restrictions. That is not the law.

The trial commissioner is the trier of fact and, as such, has the power and duty to determine the facts. Smith v. Connecticut Light & Power Co., 73 Conn. App. 619, 624, 808 A.2d 1171 (2002). “The trier [of fact] may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical.” (Internal quotation marks omitted.) State v. Jimenez, 73 Conn. App. 664, 668, 808 A.2d 1190, cert. denied, 262 Conn. 929, 814 A.2d 381 (2002). “The commissioner must determine as a factual matter the causal relationship between a claimant’s symptoms and a compensable injury.” (Internal quotation marks omitted.) Barron v. City Printing Co., 55 Conn. App. 85, 94, 737 A.2d 978 (1999). Medical testimony that there is a definitive causal connection between the claimant’s symptoms and his incapacity is not required. English v. Manchester, 175 Conn. 392, 396-97, 399 A.2d 1266 (1978); Poulick v. Radio City Restaurant, 153 Conn. 410, 412, 216 A.2d 831 (1966). “It is enough if there is evidence from which the commissioner can properly conclude that it is reasonably probable, or more probable than not, that the causal connection existed.” (Internal quotation marks omitted.) English v. Manchester, supra, 397; Poulick v. Radio City Restaurant, supra, 412-13. Moreover, “it is clear that the lack of a definitive diagnosis does not preclude recovery under the Work[ers’] Compensation Act.” English v. Manchester, supra, 398.

It is thus clear that the defendants’ presumption is entirely incorrect. The trial commissioner was not required to have a physician causally relate the plaintiffs fibromyalgia to his work restrictions before awarding the plaintiff temporary partial benefits as long as there was evidence in the record by which the commissioner could determine, more probably than not, that the plaintiffs fibromyalgia (or his “injury”) caused his work restrictions as far back as July, 9, 1997.

What is left of the defendants’ claim is, essentially, a sufficiency of the evidence claim. In other words, the defendants’ claim, divorced of the presumption previously discussed, appears to be that there was insufficient evidence in the record by which the trial commissioner could find that the plaintiffs fibromyalgia was causally connected to his work restrictions prior to March 26, 1999. The defendants’ argument is without merit.

The trial commissioner, in his finding and award, found the following facts: “On July 2,1997, the [plaintiff] was examined by Dr. Charles Kime, an orthopedic surgeon. It was Dr. Kime’s opinion that the [plaintiff] had an unusual pain syndrome which was not related to any intrinsic spinal pathology. He likely had either a fibromyalgia or some other type of reactive disorder as the etiology of his unusual pain syndrome. . . .

“The [plaintiff] was referred to Dr. W. Jay Krompinger, an orthopedic surgeon for a second opinion. After having examined the [plaintiff] on September 2, 1997, September 10,1997, September 19,1997, October, 1997 and November 4,1997 and reviewing [electromyograms] and X rays, it was Dr. Krompinger’s opinion that the overall chronic diffuse pain was more consistent with a diffused arthritic process with an element of fibromyalgia. Dr. Krompinger referred the [plaintiff] to a rheumatologist. . . .

“The [plaintiff] was next examined by Dr. Ralph Stocker, a board certified internist and rheumatologist. Dr. Stocker diagnosed the [plaintiffs] neck and back pain as fibromyalgia. . . .

“It was Dr. Stocker’s further medical opinion that the [plaintiffs] work activities were a significant factor in the causation of the fibromyalgia given his work description, continuing bending at the waist and concentration in a need for determining minute abnormalities and quality control. . . .

“Dr. Stocker also indicated in a report dated November 18,1999, that the continued neck and shoulder pain from fibromyalgia is restricting the [plaintiffs] workday to four (4) hours a day. . . .

“After having been examined by Dr. Stocker, the [plaintiff] was again seen by Dr. Krompinger. In an examination dated March 26,1999, it was Dr. Krompinger’s opinion that the [plaintiff] had a symptomatic cervical spondylosis with an underlying element of fibromyalgia. It was also Dr. Krompinger’s opinion that the [plaintiff] had a work capacity of four (4) hours a day due to this perceived discomfort.”

The defendants do not claim that those findings of fact were unsupported by evidence or that the trial commissioner omitted material facts. Indeed, after reviewing the record, it is clear that those findings were supported by evidence. The defendants also do not dispute the trial commissioner’s finding that the plaintiff suffered from fibromyalgia. The defendants, nevertheless, maintain that there is no evidence in the record by which the trial commissioner could find that the plaintiffs work restrictions were causally connected to his fibromyalgia, until the March 26, 1999 report from Krompinger.

Contrary to the defendants’ argument, it is clear that there was sufficient evidence in the record by which the trial commissioner could find that the plaintiffs fibromyalgia was causally connected to his work restrictions prior to March 26, 1999. On May 27, 1997, the plaintiffs physician reported that the plaintiff “continues to have significant pain,” but nevertheless gave the plaintiff a work slip to return to eight hour workdays “as best as possible.”

By the middle of June, 1997, the plaintiffs physician had returned the plaintiff to four hour workday restrictions because of his severe pain. The plaintiff continued to seek medical treatment for his severe pain. Stocker first examined the plaintiff in December, 1997, and made a diagnosis of presumed fibromyalgia at that time. Stocker continued to treat the plaintiff. In a letter dated August 14, 1998, Stocker stated that he would date the onset of the plaintiffs fibromyalgia as being prior to the date when he first examined the plaintiff and that much of the plaintiffs “symptomatology, which was diagnosed as cervical strain or due to other causes, may have been consistent with the diagnosis of fibromyalgia.” In that same letter, Stocker stated that “[i]n my opinion, to a reasonable medical probability, [theplaintiffs] work activities were a significant factor in the causation of the fibromyalgia, given his work description, continued bending at the waist and concentration in the need for determining minute abnormalities in quality control. In my opinion fibromyalgia has made his work restrictions necessary and such restrictions (including the need for stretch breaks from work and if possible ergonometric reexamination of his workstation) . . . remain in force.” (Emphasis added.) The trial commissioner, in his finding and award, directly credited Stocker’s opinion, stating that “[i]t was Dr. Stocker’s further medical opinion that the [plaintiffs] work activities were a significant factor in the causation of the fibromyalgia given his work description, continuing bending at the waist and concentration in a need for determining minute abnormalities and quality control.” The trial commissioner was within his discretion in accepting that evidence. “It [is] the province of the commissioner to accept the evidence which impresses] him as being most credible and more weighty.” (Internal quotation marks omitted.) Ferrara v. Hospital of St. Raphael, 54 Conn. App. 345, 349, 735 A.2d 357, cert. denied, 251 Conn. 916, 740 A.2d 864 (1999).

The defendants ar e, therefore, incorrect in claiming that there is no evidence in the record causally connecting the plaintiffs fibromyalgia to his work restrictions prior to March 26, 1999. We likewise conclude that the trial commissioner’s decision, to award temporary partial benefits retroactive to July 9, 1997, was supported by evidence in the record because there was evidence by which he could infer that the plaintiffs fibromyalgia caused his work restrictions as far back as July 9, 1997.

The decision of the workers’ compensation review board is affirmed.

In this opinion the other judges concurred.

       A “[f]orm 36 is a notice to the compensation commissioner and the claimant of the intention of the employer and its insurer to discontinue compensation payments. The filing of this notice and its approval by the commissioner are required by statute in order properly to discontinue payments. General Statutes §§ 31-296, 31-296a, 31-300.” (Internal quotation marks omitted.) D’Amico v. Dept. of Correction, 73 Conn. App. 718, 720 n.2, 812 A.2d 17 (2002), cert. denied, 262 Conn. 933, 815 A.2d 132 (2003).

       The defendants also claim that the board improperly ignored the impropriety of a three year gap between the ruling approving the form 36 and the commissioner’s decision, rendered after a formal hearing, to reverse the approval of the form 36. Specifically, the defendants assert that it was the plaintiffs duty to request a formal hearing, that the board has declared that such a request should be made as soon as possible after a ruling is made on the form 36 and that because the formal hearing was held some two and one-half years after the ruling approving the form 36, the plaintiff must have engaged in some impropriety. We decline to address that claim both because the issue does not appear to have been preserved properly for appeal; see State v. Nunes, 260 Conn. 649, 658, 800 A.2d 1160 (2002); Norwich Savings Society v. Caldrello, 38 Conn. App. 859, 864, 663 A.2d 415, cert. denied, 235 Conn. 927, 667 A.2d 553 (1995); and because the record is not adequate for our review. “Appellants bear the burden of furnishing this court with an adequate record to review their claims. Practice Book § 61-10; 1B. Holden & J. Daly, Connecticut Evidence (2d Ed. 1988) § 60i, p. 386.” Putnam Park Associates v. Fahnestock & Co., 73 Conn. App. 1, 6-7, 807 A.2d 991 (2002). In the present case, there is no evidence before this court as to when the plaintiff requested the formal hearing or why there was a two and one-half year gap between the ruling on the form 36 and the formal hearing. The defendants, thus, have not provided us with an adequate record for review.

       The informal hearing was apparently held in April or May, 1997, but Commissioner Miles held his decision on the form 36 in abeyance until an opinion from the plaintiffs treating physician could be obtained.

       From mid-June, 1997, until December, 1999, when Finlay Printing laid the plaintiff off, it appears that he generally remained on work restrictions of four hours per day except for when he was absent from work altogether due to surgery or surgeries for carpal tunnel syndrome.

       The form 36 is the notice, required by General Statutes § 31-296, of the defendants’ intention to discontinue compensation payments. The content of the form is set out by § 31-296. See General Statutes § 31-296; Melendez v. Home Depot Inc., 61 Conn. App. 653, 655 n.3, 767 A.2d 743 (2001).

       In so doing, the board recognized claimants’ due process rights to a formal hearing and its own need for a record to review on appeal. Anguish v. TLM, Inc., No. 3437, CRB-7-96-9 (January 20, 1998), aff'd, 53 Conn. App. 241, 728 A.2d 1165, cert. denied, 250 Conn. 910, 734 A.2d 985 (1999).

       From the defendants’ argument, it appears the defendants view the formal hearing as an “appeal” from the informal hearing in much the same way as a review by the board is an “appeal” of the decision of a trial commissioner.

       Moreover, we note that to our knowledge, there is no record of what transpired at the informal hearing. Without a record from that informal hearing, we do not actually know what occurred at the informal hearing or if, as the defendants claim, Commissioner Miles acted within his discretion in approving the form 36. The board was, therefore, entirely correct when it stated that the “emergency informal hearing ... is not an appealable decision, as it does not create a record that can be reviewed.” (Citation omitted.) DeMartino v. L.G. DeFelice, Inc., supra, No. 3524, CRB-04-97-01, p. 4 n.2. The formal hearing is, thus, not an appeal from the informal hearing in the same way as an appeal to the board is an appeal from the decision of a trial commissioner rendered after a formal hearing.

       It would again appear that the defendants view the formal hearing as an appeal from the informal hearing in much the same way as a review by the board is an appeal from a decision by a trial commissioner rendered after a formal hearing. Such is not the case. See footnotes 7, 8.

       The board may hear additional evidence or testimony provided that it is shown that the additional evidence is material and that there were good reasons for the failure to present it in the proceedings before the commissioner. See Gillis v. White Oak Corp., 73 Conn. App. 523, 527-28, 808 A.2d 712 (2002), cert. granted on other grounds, 262 Conn. 936, 815 A.2d 136 (2003) (appeal withdrawn March 28, 2003).

       It is, of course, also true that there had to be evidence by which the trial commissioner could conclude that the plaintiffs injury (fibromyalgia) arose out of and in the course of his employment. See Kudlacz v. Lindberg Heat Treating Co., supra, 70 Conn. App. 563. The trial commissioner found that the plaintiffs fibromyalgia arose out of and during the course of his employment. That finding is not contested on appeal.

       Stocker did not specifically mention four hour workdays as one of the plaintiff’s work restrictions. It is clear from the record, however, that the plaintiff, having been returned to eight hour workdays on June 1,1997, was back on four hour work restrictions by mid-June, 1997, and thereafter. The trial commissioner was permitted to infer, on the basis of the letter and the other evidence before him, that by “work restrictions,” Stocker also referred to the four hour per day work restrictions.


author: STOUGHTON, J.

text:
    DODSON BOATYARD, LLC v. PLANNING AND ZONING COMMISSION OF THE TOWN OF STONINGTON ET AL.
    (AC 22931)
    Lavery, C. J., and West and Stoughton, Js.
    Argued March 31
    officially released June 10, 2003

      Thomas J. Londregan, with whom was Jeffrey T. Londregan, for the appellants (defendants).

      Frank N. Eppinger, with whom was Thomas F. Collier, for the appellee (plaintiff).
   Opinion

STOUGHTON, J.

Certification to appeal having been granted, the defendant planning and zoning commission of the town of Stonington (commission) appeals from the judgment of the trial court, which reversed the decision of the commission denying the plaintiffs application to modify a special use permit for its marina. On appeal, the commission claims that the court improperly (1) decided that a 1983 variance for the property reduced its rear yard setback, (2) decided that the steel containers at issue were buildings and (3) applied General Statutes § 8-13a to the containers. We affirm the judgment of the trial court.

The record discloses the following relevant facts and procedural history. The plaintiff owns five tracts of land on the east side of the waters of the Stonington Harbor, not all of which are contiguous to one another. The property lies partly in the town and partly in the borough of Stonington. The portion with which this appeal is concerned is that part of the tract designated on the Stonington assessor’s map as lot nine, which lies within the town. For many years, the plaintiff and its predecessors in title have operated a full service marina, utilizing the entire property as one unified entity. The portion of the property that lies within the town, in which a marina is permitted, is in the marine commercial district (MC-80). In any event, the marina existed well before zoning regulations were enacted.

On August 9, 1983, the Stonington zoning board of appeals (board) granted an application by the plaintiffs predecessor in title for a variance (1983 variance) to the zoning regulations for lot nine, permitting a reduction in the rear yard setback from fifty feet to six feet, and increasing the floor area ratio to 0.41. The 1983 variance was sought to erect a building for winter storage and repair of boats. Neither the record of decision nor the certificate of variance recorded on the land records contained any limitations or restrictions. Thereafter, on April 8, 1997, the commission approved a site plan and issued a special use permit (1997 special use permit) to the plaintiffs predecessor in title for a boat storage building at the marina.

Early in January, 2000, the Stonington zoning enforcement officer conducted an inspection and saw several storage sheds on lot nine within eight feet of the rear lot line that had been erected without a permit and were, he believed, in violation of the fifty foot setback line. There were three, forty foot by eight foot ocean freight containers and four, twenty foot by eight foot containers. Some of the containers were stacked to create two floors. Wooden stairways and landings were built to provide access to the second floors. Power, light and heat were provided, and at least one of the containers had windows. Each container had four walls and a roof, but it was possible to move them. They were used for storage of equipment and supplies, and at least one was used as a workshop. The purpose was to put these functions and uses under cover rather than to have them carried on in the open. The containers could not be seen from the street, but they clearly were visible from the water and to anybody on the property. Because they could be moved, they were not shown on a site plan filed by the plaintiff.

The zoning enforcement officer gave notice of the perceived violations to the plaintiff and issued a cease and desist order. The plaintiff, unaware of the 1983 variance, applied to the board for a variance of the setback from fifty feet to eight feet. The board denied the application and the plaintiff did not appeal. The plaintiff also filed with the commission a site plan and an application to modify its 1997 special use permit to allow “temporary (moveable) steel storage containers as shown on the site plan and consisting of . . . three 40’ x 8’ ocean freight containers and four 20’ x 8’ ocean freight containers.” After having held public hearings, the commission, on October 17, 2000, voted to deny the application. The reasons stated by the commission for its decision to deny the application were (1) that the application exceeds the allowable floor area ratio and (2) that the structure would be within the required rear yard setback. The plaintiff appealed to the trial court.

The court reviewed the record and determined that the first reason given by the commission for denying the plaintiffs application was not in accordance with the evidence or the applicable law. The commission does not challenge that determination by the court. The court also concluded that the second reason given by the commission was not supported by substantial evidence in the record because the 1983 variance had reduced the setback to six feet. It also determined that the containers were nonconforming buildings under the provisions of § 8-13a (a). This appeal followed.

The standard of review to be employed is a familiar one. We first note that “[t]he terms ‘special permit’ and ‘special exception’ have the same legal import and can be used interchangeably.” A.P. & W. Holding Corp. v. Planning & Zoning Board, 167 Conn. 182, 185, 355 A.2d 91 (1974). “When considering an application for a special exception, a zoning authority acts in an administrative capacity, and its function is to determine whether the proposed use is expressly permitted under the regulations, and whether the standards set forth in the regulations and statutes are satisfied. ... It has no discretion to deny the special exception if the regulations and statutes are satisfied. . . .

“When a zoning authority has stated the reasons for its actions, a reviewing court may determine only if the reasons given are supported by the record and are pertinent to the decision. . . . The zoning board’s action must be sustained if even one of the stated reasons is sufficient to support it. ... In light of the existence of a statutoiy right of appeal from the decisions of local zoning authorities, however, a court cannot take the view in every case that the discretion exercised by the local zoning authority must not be disturbed, for if it did the right of appeal would be empty . . . .” (Citations omitted; internal quotation marks omitted.) Bethlehem Christian Fellowship, Inc. v. Planning & Zoning Commission, 73 Conn. App. 442, 455-56, 807 A.2d 1089, cert. denied, 262 Conn. 928, 814 A.2d 379 (2002). “In reviewing the action of the trial court, we have to decide whether it could in logic and in law reach the conclusion that the [commission] should be overruled.” (Internal quotation marks omitted.) Quality Sand & Gravel, Inc. v. Planning & Zoning Commission, 55 Conn. App. 533, 537, 738 A.2d 1157 (1999).

The commission first claims that the court improperly decided that the 1983 variance reduced the entire rear yard setback of lot nine from fifty feet to six feet. The commission argues that the 1983 variance was granted so that the plaintiffs predecessor in title could erect one building only and never was intended to reduce the entire rear yard setback for lot nine. In support of that claim, the commission directs our attention to the site plan that was filed with the variance application in 1983, showing one proposed boat storage building. The commission, citing L & G Associates, Inc. v. Zoning Board of Appeals, 40 Conn. App. 784, 673 A.2d 1146 (1996), asserts that the court failed to consider the entire record and that it is clear that the variance was for one particular boat storage building. We disagree.

The records of the board for the meeting of August 9, 1983, disclose that the application sought a variance to permit a reduction in the rear yard setback to six feet and an increase in the floor area ratio to 0.41 for the property at 194 Water Street. The application was approved, and the record of decision noted that the “[bjuilding is needed to store and repair boats in the winter time.” The certificate of variance issued by the board and filed in the land records certifies that a variance was granted for the premises “to permit a reduction in rear yard setback to 6 feet and increase the floor area ratio to 0.41,” and that no limitations were imposed. It is clear that the reason for the application was to erect a boat storage building within the fifty yard setback. There is nothing in the certificate of variance as granted that limits it to one building or to the proposed building shown on the site plan or to a particular part of the premises. We agree with the court that the 1983 variance reduced the rear yard setback line on lot nine to six feet and that the record does not support the conclusion by the commission that the structures were within the required setback.

Because we agree with the conclusion of the court that the rear yard setback was reduced to six feet for lot nine by the 1983 variance, it is unnecessary to consider the commission’s other claims.

The judgment is affirmed.

In this opinion the other judges concurred.

       Cynthia C. Ladwig, town cleric of the town of Stonington, and George Thayer, chairman of the commission, also are defendants and appellants. We refer in this opinion to the defendant appellants as the commission.