author: SCHALLER, J. LAVERY, C. J.,

text:
    DONALD L. FRANCO v. EAST SHORE DEVELOPMENT, INC.
    (AC 21958)
    Laveiy, C. J., and Schaller and Hennessy, Js.
    Argued June 10 —
    officially released October 29, 2002

      Louis R. Pepe, with whom was Jennifer A. Osowiecki, for the appellant (Laurel Woods, Inc.).

      Kenneth A. Votre, for the appellee (plaintiff).
   Opinion

SCHALLER, J.

The appellant, Laurel Woods, Inc. (Laurel Woods), appeals from the trial court’s decision denying its motion to join in the proceedings as a party. We affirm the judgment of the trial court.

The following facts are necessary for our resolution of the appeal. On September 24, 1992, the plaintiff, Donald L. Franco, and the defendant, East Shore Development, Inc. (East Shore), entered into a contract (agreement). According to the terms of the agreement, Franco was to manage a nursing facility that East Shore was going to build, own and operate. East Shore completed the facility and leased it to Laurel Woods. Thereafter, Franco managed the facility from 1993 to 1998.

During the late spring and early summer of 1998, a dispute arose between Franco and East Shore concerning Franco’s compliance with his obligations under the agreement. On or about June 1, 1998, Franco filed a demand for arbitration, pursuant to the arbitration clause of the agreement, claiming that East Shore had breached the agreement by actually terminating, attempting to terminate or threatening to terminate the agreement. By way of letter on July 23,1998, East Shore formally terminated the agreement with Franco alleging that Franco violated the agreement because he had failed to pay a payroll withholding tax.

On September 8, 2000, while the arbitration proceedings were pending, East Shore assigned all its right, title and interest in any arbitration award to Laurel Woods. East Shore also filed a counterclaim on or about November 12, 1998, alleging that Franco had breached the agreement. The arbitrator issued a decision on February 9, 2001, that denied Franco relief and awarded East Shore damages totaling $432,794.

On March 8, 2001, Franco filed an application to vacate the arbitration award. On March 29, 2001, East Shore and Laurel Woods filed a motion for joinder and to confirm the arbitration award. The motion was comprised of two components. Laurel Woods, as the assignee of East Shore, sought pursuant to General Statutes §§ 52-101 and 52-103 to be joined as a party in interest to the proceedings. Further, East Shore and Laurel Woods sought an order pursuant to General Statutes §§ 52-417 and 52-420 confirming the arbitration award. Franco filed an objection to the motion for joinder on May 2, 2001.

On May 11, 2001, the court denied Laurel Woods’ motion for joinder. The court stated that “Laurel Woods had no written contract with the plaintiff . . . for arbitration. Laurel Woods was not [the] assignee of the actual contract between the plaintiff and East Shore, but merely the assignee of any award proceeds from the arbitration. General Statutes §§ 52-417 and 52-418 provide that only a party to the arbitration may be a party to the court actions seeking to confirm or vacate the award. See Hartford v. Local 308, 171 Conn. 420, 370 A.2d 996 (1976). The fact that the award may result in a benefit or a detriment to another person or entity is immaterial to party status. Id.” The court also entered an order staying the proceeding to confirm or to vacate the arbitration award pending an appellate decision on the denial of Laurel Wood’s motion for joinder. This appeal followed.

On appeal, Laurel Woods claims that the court improperly denied its motion for joinder. In support of that claim, Laurel Woods asserts several arguments based on our General Statutes, rules of practice and case law. At the forefront, we note the standard of review that governs the issue. “The denial of a motion to intervene as of right raises a question of law and warrants plenary review, whereas a denial for permissive intervention is reviewed with an abuse of discretion standard.” Rosado v. Bridgeport Roman Catholic Diocesan Corp., 60 Conn. App. 134, 142, 758 A.2d 916 (2000).

Before we address Laurel Woods’ claim, however, we must first take note of the context surrounding the present appeal. Specifically, although Laurel Woods has appealed only from the court’s denial of its motion to join as a party, the original motion was both a motion to join and to confirm the award. In view of that combination, it is evident that Laurel Woods’ ultimate goal was to join the case as a party and then to argue the motion to confirm the award in the hope of protecting the award it had been assigned. In light of that goal, we focus on Laurel Woods’ ability to participate in the confirmation proceedings in deciding whether the court properly denied the motion for joinder because if Laurel Woods could not properly participate in those proceedings, then granting the motion for joinder for the purpose of arguing the motion to confirm would be improper.

We therefore review the law applicable to confirming arbitration awards to determine whether the court correctly denied the motion for joinder. We begin with the words of the applicable statute, § 52-417, which provides in relevant part that “[a]t any time within one year after an award has been rendered and the parties to the arbitration notified thereof, any party to the arbitration may make application to the superior court . . . for an order confirming the award . . . .” (Emphasis added.) That language indicates that under § 52-417, one can seek to confirm an award only if one is a party to the arbitration. Hartford v. Local 308, supra, 171 Conn. 429.

The question becomes: Who qualifies as a “party” under § 52-417? While this question has not been addressed squarely in the context of the present case, case law in the collective bargaining context provides useful guidance in defining this statutory language. In Taylor v. State Board of Mediation & Arbitration, 54 Conn. App. 550, 557, 736 A.2d 175 (1999), cert. denied, 252 Conn. 925, 747 A.2d 1 (2000), we stated that “[u]nless a collective bargaining agreement provides for a personal right to seek arbitration ... ah employee subject to the agreement is not a ‘party to the arbitration’ under General Statutes § 52-417 and thus has no standing to apply to confirm an award.” (Citation omitted; internal quotation marks omitted.) Taylor makes it clear that to qualify as a “party” under § 52-417, one must have the individual right to seek arbitration. Accordingly, we conclude that in the present context, a “party” for the purposes of § 52-417 must have the personal right to seek arbitration.

With that conclusion in mind, we next set out to determine who has a personal right to compel arbitration and begin by noting that General Statutes § 52-410 governs the right to compel arbitration.* *** Section 52-410 provides in relevant part that “[a] party to a written agreement for arbitration claiming the neglect or refusal of another to proceed with an arbitration thereunder may make application to the superior court . . . for an order directing the parties to proceed with the arbitration in compliance with their agreement . . . .” (Emphasis added.)

At this point, we must determine the meaning of “party” under § 52-410. Although that may appear to be duplicative, it is, in fact, a separate question on which our Supreme Court has spoken. In Paranko v. State, 200 Conn. 51, 52-53, 509 A.2d 508 (1986), the issue the court addressed was whether an individual union member could compel arbitration, pursuant to § 52-410, under the terms of a collective bargaining agreement between the state and the individual’s employee union. The court stated that “[t]he clear purpose of § 52-410 is to provide the ‘parties’ to an arbitration agreement with an enforcement mechanism by permitting them to invoke the court’s equitable powers. The statute limits the availability of the remedy to ‘parties,’ but the word is not defined. The term is used generically, referring to anyone who has contracted with another to arbitrate their disputes. The meaning must therefore be derived from the agreement itself.” Id., 54; see also McCaffrey v. United Aircraft Corp., 147 Conn. 139, 141-42, 157 A.2d 920 (“[B]asis for arbitration in a particular case is to be found in the written agreement between the parties. Action in the courts to compel compliance with the arbitration provisions of the agreement can be taken only by the parties as determined in the agreement. General Statutes §§ 52-408, 52-410.”), cert. denied, 363 U.S. 854, 80 S. Ct. 1636, 4 L. Ed. 2d 1736 (1960).

In determining who the “parties” to the agreement were in Paranko, our Supreme Court stated that “individual employees may be ‘parties’ to a collective bargaining agreement for the purposes of General Statutes § 52-410 if the collective bargaining agreement so provides. . . . Thus, if the collective bargaining agreement contains no provision giving employees the right to submit disputes to arbitration, then an employee could not seek relief under the statute. ... If the agreement explicitly grants employees the right to seek arbitration, however, the employee would be able to petition the court to enforce that right under General Statutes § 52-410.” (Citations omitted; emphasis added.) Paranko v. State, supra, 200 Conn. 55-56.

Guided by the court’s language in Paranko, we conclude that to determine the meaning of the term “party” for purposes of § 52-410, we must look to the language of the agreement for an express statement granting the right to seek arbitration to the person or entity seeking to compel the arbitration. Thus, for purposes of § 52-410, we define a “party” who can compel arbitration as one who is identified in the written agreement and is granted the express authority to force another party to the agreement to arbitrate. We further conclude that a “party” under § 52-417 shares the same definition because our case law states that to qualify as a “party” for the purposes of seeking confirmation under § 52-417, one must have the individual right to compel arbitration.

That is a sensible conclusion because if the definition of a “party” under § 52-417 were to demand anything less, then it would be conceivable that a person who had no right to force another to arbitrate in the first place could later bring an application to confirm an arbitration award where he or she in no way had participated in the arbitration. Such a result would be illogical. It also would be patently unfair in light of the underlying agreement because the person who would have to defend against the application to confirm would be forced into an adversarial relationship with someone with whom he or she had not entered into the arbitration agreement.

Having determined the definition of a “party” under § 52-417, we now address Laurel Woods’ present claim. We conclude that the court’s decision denying the motion for joinder was correct because Laurel Woods was not a “party,” as defined by § 52-417, and therefore did not have the right to seek to confirm the arbitration award. In reaching that conclusion, we look to the language of the written agreement, as directed by our Supreme Court. First, it is undisputed that the agreement in the present case was entered into only by East Shore and Franco. In addition, Laurel Woods was not mentioned in the agreement in any capacity. Furthermore, Laurel Woods did not become involved in the case in any way until September 8, 2000, which was more than two years after Franco’s demand for arbitration.

Under those circumstances, we cannot conclude that Laurel Woods was a “party” for the purposes of § 52-417, as we have defined that term. It is uncontested that Laurel Woods was not identified in any way in the agreement between East Shore and Franco. That is the first requirement under the previously stated definition. Furthermore, it is evident that the agreement is void of any express statement granting to Laurel Woods the right to seek arbitration. That is the second requirement for “party” status. Because Laurel Woods was not mentioned in the agreement and did not hold an explicit personal right to seek arbitration, it was not a “party” under § 52-417 and, therefore, had no standing to apply to confirm the award. In light of that conclusion, the court correctly denied the motion to intervene because Laurel Woods could not properly participate in the motion to confirm the award.

Although we are bound to reach the present decision on the basis of controlling arbitration statutes and law, we are not unmindful of the harsh result our decision has on Laurel Woods as assignee in the present situation. We therefore now address Laurel Woods’ contention, restated generally, that it had a right to join the proceedings because it was an assignee of the arbitration award. We begin by emphasizing that the present decision is made in the arbitration context and relies on arbitration statutes and arbitration case law. Those statutes and law govern Laurel Woods’ appeal because the underlying action was an arbitration proceeding.* ** Therefore, Laurel Woods,despite its status as an assignee, had the burden of establishing itself as a “party” in this context.

The specific nature and timing of the assignment in this case, however, does not persuade us that Laurel Woods, in its role as assignee, satisfied the definition of a “party” for purposes of § 52-417. As previously stated, Laurel Woods was not mentioned specifically in parties’ agreement. Further, Laurel Woods was assigned its limited interest in the arbitration award on September 8, 2000, which was just more than two years after Franco’s demand for arbitration. Additionally, even if we assume that the agreement’s assignment provision identified Laurel Woods, if not by name then by status, as is required by the definition of “party,” Laurel Woods cannot establish that the agreement provided it with an explicit right to arbitrate because the assignment referred to the arbitration award only. East Shore did not assign to Laurel Woods the entire contract or any of its rights or obligations specifically relating to the arbitration provision.

We also note, however, that Laurel Woods, as an assignee, still may pursue the arbitration award in a common-law contract action. See Spearhead Construction Corp. v. Bianco, 39 Conn. App. 122, 130, 132, 665 A.2d 86 (procedures in §§ 52-417 to 52-419 “are not the exclusive means for judicial enforcement of an arbitration award” and “ [i]n the absence of a motion to confirm the award, the parties would be left to their common law remedies”), cert. denied, 235 Conn. 928, 667 A.2d 554 (1995). Although exercising that remedy would result in additional litigation, we have stated that “[e]ven though it is the policy of the law to favor settlement of disputes by arbitration . . . arbitration agreements are to be strictly construed and such agreements should not be extended by implication.” (Citation omitted.) Wesleyan University v. Rissil Construction Associates, Inc., 1 Conn. App. 351, 354-55, 472 A.2d 23, cert. denied, 193 Conn. 802, 474 A.2d 1259 (1984). Therefore, for Laurel Woods, as an assignee, to avoid the obstacle of establishing itself as a “party,” as that term is used in the arbitration context, and to assert all the rights to the subject assigned, as it is entitled to do under the common law; see Mall v. LaBow, 33 Conn. App. 359, 362, 635 A.2d 871, cert. denied, 229 Conn. 912, 642 A.2d 1208 (1993); it may have to file an action that avoids the arbitration statutes. We, however, are bound to apply those statutes in the present appeal. Because we conclude that Laurel Woods was not a “party” under § 52-417, we further conclude that the court correctly denied the motion to join because Laurel Woods could not properly participate in the motion to confirm the award.

The judgment is affirmed.

In this opinion HENNESSY, J., concurred.

LAVERY, C. J.,

dissenting. I disagree with the conclusion reached by the majority because I believe that there is no basis in law for the assumption on which the opinion impliedly is premised, that is, for an individual or entity to intervene in an action, it must have the standing necessary to have brought the original action itself. By considering the motion to intervene filed by the appellant, Laurel Woods, Inc. (Laurel Woods), as inseparable from its motion to confirm the arbitration award at issue, the majority obscures the issue before us.

I agree with the majority’s determination that Laurel Woods, as a nonparty to the management agreement between the plaintiff, Donald L. Franco, and the defendant, East Shore Development, Inc. (East Shore), which agreement contains an arbitration clause, could not apply to the court pursuant to General Statutes § 52-417 for an order confirming the arbitrator’s award. See Hartford v. Local 308, 171 Conn. 420, 429, 370 A.2d 996 (1976). I differ, however, as to the relevance of that determination to the disposition of Laurel Woods’ motion to intervene.

To support intervention, a prospective intervenor must show that it has some legally protected interest in the subject matter of the litigation. 59 Am. Jur. 2d 594-95, Parties § 176 (2002). “A proposed intervenor must allege sufficient facts, through the submitted motion and pleadings, if any, in order to make a showing of his or her right to intervene. The inquiry is whether the claims contained in the motion, if true, establish that the proposed intervenor has a direct and immediate interest that will be affected by the judgment.” Washington Trust Co. v. Smith, 241 Conn. 734, 747, 699 A.2d 73 (1997).

Nonetheless, there is no requirement that a prospective intervenor, in its motion to intervene, assert the same claim as the plaintiff in the original action. As we stated in State Board of Education v. Waterbury, 21 Conn. App. 67, 571 A.2d 148 (1990), “[s]uch a restriction on intervention finds no support ... in common sense. The whole point of intervention is to allow the participation of persons with interests distinct from those of the original parties; it is therefore to be expected that an intervenor’s standing will have a somewhat different basis from that of the original plaintiffs.” (Internal quotation marks omitted.) Id., 75.

“To hold otherwise would be to conclude that an intervenor must allege the exact issues as those alleged by the original plaintiffs, and would, therefore, be in direct opposition to and in contradiction with the requirement that in order for intervention to be warranted, the prospective plaintiffs must show that their rights are not adequately represented by the present parties. Once a party has been granted inteivention as of right, the scope of issues raised in a proposed complaint is logically within the authority and discretion of the trial court.” Id., 75-76; see also Rosado v. Bridgeport Roman Catholic Diocesan Corp., 60 Conn. App. 134, 151-52, 758 A.2d 916 (2000) (holding that seven priests should have been allowed to intervene in action for damages for alleged sexual abuse by particular priest for purpose of filing motion to quash and for protective order and otherwise to prevent disclosure of private, confidential information from their respective personnel files). Therefore, the fact that Laurel Woods could not join East Shore in the motion to confirm the arbitration award should not have been fatal to Laurel Woods’ attempt to intervene in the confirmation proceedings.

In its motion to intervene, Laurel Woods averred that “[o]n September 8, 2000, while the arbitration proceedings were pending, East Shore Development, Inc., assigned all of its right, title and interest in any arbitration award it might receive to Laurel Woods” and appended documentation evidencing that assignment. Laurel Woods thus asserted, by virtue of the assignment, a legally protected interest in the subject matter of the litigation, the arbitration award, that was sufficient to support its motion to intervene in the confirmation proceedings. If the court found the other conditions for intervention satisfied, it ought to have granted the motion.

Despite the majority’s assurances that an alternate remedy is available, I believe that it is important that Laurel Woods be allowed to intervene in the present action to pursue its claim to the arbitration award because a potential outcome of the proceedings is vacation of that award. The plaintiff has filed an application to vacate pursuant to General Statutes § 52-418 and, while the parties were awaiting the court’s decision on the motions to intervene and to confirm the arbitration award, the plaintiff exercised an option to become an 80 percent shareholder of the defendant. Thus, the defendant’s ability to pursue its motion to confirm (and to contest the application to vacate) has been compromised. Furthermore, if the plaintiff is successful on the application to vacate, no award will remain for which Laurel Woods may seek confirmation in a separate common-law action, as suggested by the majority. Laurel Woods, as a nonparty to the agreement containing the arbitration clause, will have no right to compel arbitration anew. Under the circumstances, I believe that denying Laurel Woods the right to intervene is not only improper, but unjust.

I would reverse the judgment.

       Specifically, Laurel Woods argues that General Statutes §§ 52-101, 52-102, 52-107 and 52-118 support the conclusion that it should be made a party on the basis of its status as an assignee. Laurel Woods also argues that as an assignee, it was entitled to become a party in accordance with Practice Book §§ 9-15,9-16 and 9-23. Laurel Woods further argues that it was improper for the court to deny it party status on the basis of case law. In light of our ruling, we need not address any of those arguments specifically.

       Laurel Woods’ brief, when read in conjunction with its reply brief, addresses both intervention as of right and permissive intervention. We note, however, that the court’s memorandum of decision does not specify whether its ruling is based on intervention as of right or permissive intervention. Rather, the court relied on the statute pertaining to the confirmation of arbitration awards, General Statutes § 52-417, as the basis for its ruling. Although that is somewhat unusual, as we will explain, the court was correct in taking that approach because Laurel Woods’ motion to intervene must be considered in the context of its motion to intervene and to confirm the award. We conclude, therefore, that the court’s reliance on § 52-417 to deny Laurel Woods’ motion to intervene, in this specific procedural situation, is the functional equivalent of the court’s determining that Laurel Woods did not have a right to intervene. We further conclude, in light of that result, that the court implicitly declined to allow Laurel Woods to intervene as a permissive matter because it did not address that option, having declined to grant intervention as of right. We therefore apply both standards and conclude that the court’s decision was correct under both standards.

       Because we focus our analysis on Laurel Woods’ ability to participate in the confirmation proceedings, we need not apply the legal tests underlying the standards of review for intervention as of right; see Rosado v. Bridgeport Roman Catholic Diocesan Corp., supra, 60 Conn. App. 138-40; or permissive intervention; see Tax Collector v. Miley, 34 Conn. App. 634, 639-40, 642 A.2d 747 (1994).

       Laurel Woods argues in its reply brief that we should not rely on cases that occur in the collective bargaining context because the relationship between an employee and a union is different from the present case where there is an assignment and because our Supreme Court, in Paranko v. State,
        200 Conn. 51, 509 A.2d 508 (1986), stated that there is “no factual parallel to these [collective bargaining] arrangements . . . .” (Internal quotation marks omitted.) Id., 55. We are not persuaded by that argument. First, the Paranko court stated only that it is amistake to try to fit collective bargaining agreements into other legal contexts. Id'. That is not what we do here. We do not attempt to force collective bargaining agreements into any other legal arena, but rather analogize from such agreements to the situation in the present case. The Paranko court made no prohibition against applying the outcome of its collective bargaining agreement decision to other, later cases that arise in other contexts. Furthermore, although the facts differ in the present case, that is not a persuasive reason not to apply case law that has developed a definition for statutory language that is at issue in the present case. Indeed, to define language from a single statute differently depending on the facts of each case would lead to an infinite number of definitions for the same language. Such a result is undesirable.

       We note that General Statutes §§ 52-408 and 52-410 apply to one’s ability to seek arbitration. Section 52-408, however, provides, in essence, only that a written agreement to arbitrate is enforceable. It is § 52-410 that allows one to seek enforcement of an arbitration provision. We therefore refer to only § 52-410 from this point forward, with the implicit understanding that this section relies on § 52-408.

       We note that on the basis of footnote 5, the definition of “party” for the purposes of General Statutes § 52^410 implicitly also applies to the term “parties to any written contract” in General Statutes § 52-408.

       Although the dissent seeks to address the motion for joinder separately from the motion to confirm, we do not agree that this is appropriate in this case. As stated previously, if Laurel Woods could not properly participate in the confirmation proceeding, then allowing it to join the matter solely for that purpose would be improper. In essence, that would allow Laurel Woods to circumvent the arbitration law we have recited and to participate in a confirmation proceeding to which it is not a proper party. Such a result would be incorrect as a matter of law. Furthermore, allowing Laurel Woods to join the confirmation proceeding causes other problems. If Laurel Woods were allowed to participate in the confirmation proceeding, it could seek to bind Franco to an arbitration in which Laurel Woods had in no way participated. If Laurel Woods were allowed to participate, it would be unfair to Franco in light of the underlying agreement because Franco would then have to defend against the motion to confirm and would be forced into an adversarial relationship with Laurel Woods, a party with which he had not entered into the arbitration agreement and which has no rights under that agreement. Given that potential outcome and the governing law, it is not appropriate to separate the motion for joinder from the motion to confirm in this case.

       Although that conclusion rests on the applicable case law previously discussed, Laurel Woods argues that International Brotherhood of Police Officers, Local 564 v. Jewett City, 234 Conn. 123, 661 A.2d 573 (1995), Milford v. Local 1566, 200 Conn. 91, 510 A.2d 177 (1986), Gaudet v. Safeco Ins. Co., 219 Conn. 391, 593 A.2d 1362 (1991), and KND Corp. v. Hartcom, Inc., 5 Conn. App. 333, 497 A.2d 1038 (1985), control the present case. We do not agree and find those cases distinguishable.

        Jewett City is inapplicable because that case simply does not address the issue at hand. Although Jewett City does mention that the defendant municipality’s receiver was allowed to intervene in the arbitration proceedings; International Brotherhood of Police Officers, Local 564 v. Jewett City, supra, 234 Conn. 130; there is no analysis beyond that statement of fact. Similarly, Milford does not support Laurel Woods’ position because that case did not involve a contract or assignment. Rather, the state board of mediation and arbitration itself sought to intervene to defend its procedures after a party to an arbitration applied to vacate the decision because the arbitrators did not follow proper procedure. Milford v. Local 1566, supra, 200 Conn. 92. Gaudet also is distinguishable. That case examined the ability of an injured passenger to force arbitration of an uninsured motorist insurance claim relative to a specific insurance coverage statute. Gaudet v. Safeco Ins. Co., supra, 219 Conn. 392-94. The Gaudet court therefore was forced to consider legislative intent in analyzing the term “party” because a “legislatively dictated” term existed in the parties’ contract. Id., 397. We do not face such restrictions in the present case. Last, Hartcom, Inc., also is inapplicable. That case concerned a defendant assignee that had been assigned the contract rights from an assignor. KND Corp. v. Hartcom, Inc., supra, 5 Conn. App. 334. When the plaintiff brought an action against the assignee, the assignee sought a stay of the proceedings in court pursuant to General Statutes § 52-409. Therefore, Hartco'm, Inc., involves a different assignment, a different statute and a different procedural posture than does the present case.

       Despite the fact that the present case arises from an arbitration proceeding, the dissent does not cite to any law or authority applicable to the arbitration context, but rather relies only on general principles of intervention. Although that presumably is based on its view that the motion for joinder and the motion to confirm should be treated separately; see footnote 7; we do not find those general principles applicable in light of the arbitration context of this case and the governing arbitration law.

       We note that with regard to the arbitration context, we do not go so far as to state that the statutory term “party,” as used in either General Statutes §§ 52-410 or 52-417 may never include assignees. Rather, we conclude only that when a person or entity is not mentioned in any capacity in an agreement at the time when it is made, is later assigned an interest after arbitration proceedings have been commenced and is assigned an interest in the arbitration award only, that person or entity cannot apply to confirm the arbitration award pursuant to § 52-417 because the person or entity does not meet the definition of “party” under § 52-417.

       The dissent notes that intervention should be allowed because there is a possibility that the award will be vacated and that if this occurs, the ultimate result would be uiyust to Laurel Woods. Although such a result may occur, we are bound to apply the law as it stands, regardless of the equities that may or may not exist in light of other aspects of the present case, over which we have no control or jurisdiction.

       Although Laurel Woods captioned its motion as one for joinder, its substance is that of a motion to intervene, “[intervention is a proceeding by which a person, not originally a party to an action, is permitted to and does become a party to the pending proceeding for the protection of some right or interest alleged by him to be affected by the proceeding .... ‘Joinder’ is a method by which one may be compelled to become a party, whereas ‘intervention’ is a method by which an outsider with an interest in a lawsuit may come in as a party on his or her application.” 59 Am. Jur. 2d 579, Parties § 161 (2002). Where a party captions its motion improperly, “we look to the substance of the claim rather than the form.” (Internal quotation marks omitted.) Dyck O’Neal, Inc. v. Wynne, 56 Conn. App. 161, 164, 742 A.2d 393 (1999); see In re Brianna F., 50 Conn. App. 805, 812, 719 A.2d 478 (1998).

       General Statutes § 52-107, the statute governing intervention, provides in relevant part that “[i]f a person not a party has an interest or title which the judgment will affect, the court, on his application, shall direct him to be made a party.”

       There are “four requirements that an intervenor must show to obtain intervention as of right. The motion to intervene must be timely, the movant must have a direct and substantial interest in the subject matter of the litigation, the movant’s interest must be impaired by disposition of the litigation without the movant’s involvement and the movant’s interest must not be represented adequately by any party to the litigation.” Rosado v. Bridgeport Roman Catholic Diocesan Corp., supra, 60 Conn. App. 140.

       The majority does not explain why Laurel Woods necessarily must pursue common-law enforcement of the arbitration award in a separate action instead of amending its motion to intervene to allege that right.


source: Caselaw Access Project

author: MIHALAKOS, J.

license: Public Domain

text:
    EMILY MONTANARO, EXECUTRIX (ESTATE OF ELLEN BERTY) v. DENNIS GORELICK ET AL.
    (AC 21791)
    Spear, Mihalakos and Shea, Js.

    Argued February 14 —
    officially released October 29, 2002

      Richard L. Pate, for the appellant (substitute plaintiff).

      A. Reynolds Gordon, with whom was Frank A. DeNicola, Jr., for the appellees (defendants).

      This appeal was argued before a panel comprised of Judges Spear, Mihalakos and Shea. Although Judge Spear agreed with the other judges regarding the resolution of this appeal, he died before he had the opportunity to concur with the written decision. The parties stipulated, however, that they would not reargue the appeal to this court with a panel consisting of the original two judges and an additional judge. Rather, the parties stipulated that they would permit the remaining two judges alone to render a written decision.

   Opinion

MIHALAKOS, J.

In this fraudulent conveyance case, the trial court found that the statute of limitations barred three counts of the plaintiffs seven count complaint and rendered judgment thereon in favor of the defendant Dennis Gorelick. The plaintiff appeals, claiming that the court improperly ruled that her reply was legally insufficient to plead a matter in avoidance of the statute of limitations. The plaintiff attached to her reply a copy of a Bankruptcy Court order that precluded the defendant from raising the statute of limitations as a defense. 6We affirm the judgment of the trial court because we conclude that although the reply was legally sufficient, the court properly disregarded the Bankruptcy Court order.

The following facts and procedural history are relevant to the plaintiffs appeal. In August, 1996, the plaintiff, Emily Montanaro, in her fiduciary capacity, obtained a judgment against her nephew, Dennis Gore-lick in the amount of $147,716.06. In December, 1996, Dennis Gorelick filed a bankruptcy petition in the United States Bankruptcy Court for the District of Connecticut. On November 18, 1997, the plaintiff filed a motion for relief from the automatic bankruptcy stay granted to Dennis Gorelick. The Bankruptcy Court granted the plaintiffs motion, allowing her to proceed with her action to collect the 1996 judgment. The Bankruptcy Court also concluded that Dennis Gorelick had waived the defense of the statute of limitations and ordered that he “shall be estopped” from raising it in state court (estoppel order). On December 1, 1997, Dennis Gorelick timely filed a motion to vacate that portion of the order that precluded him from raising the statute of limitations as a defense. That motion never was decided because the bankruptcy case was dismissed in its entirety on January 8, 1998.

In March, 1998, the plaintiff commenced a fraudulent conveyance action against the defendant, alleging that he had made seven fraudulent transfers of real property to family members to avoid, to hinder or to delay her collection of the 1996 judgment. The defendant filed an answer denying all claims of fraudulent conveyances and asserted by way of a special defense that the statute of limitations had run on each of the seven counts pursuant to General Statutes § 52-552j. The plaintiff then filed a reply to the special defenses that denied them and offered “the attached order in support thereof.” That order was the relief from stay and the estoppel order.

Following a six day trial, the parties filed briefs. At that time, the plaintiff attached to her reply brief a motion for leave to amend her reply to the defendant’s special defenses. The defendant filed an objection. In a memorandum of decision, the court ruled in favor of the defendant on counts one, two and four of the complaint and refused to adjudicate the plaintiffs motion for leave to amend her reply to the special defenses. This appeal followed.

The plaintiffs primary claim is that the court improperly found that she did not sufficiently plead matters in avoidance of the statute of limitations defense. Specifically, the plaintiff asserts that the language in her amended complaint, as well as the language in the attached Bankruptcy Court order, sufficiently apprised the defendant and the trial court of her theory that the bankruptcy order tolled the running of the statute of limitations. Thus, the plaintiff argues, the defendant had fair notice and did not suffer undue prejudice or surprise.

The defendant, in response, argues that the plaintiff may not assert the bankruptcy order in avoidance of the statute of limitations because it was not properly pleaded. He further argues that the plaintiff did not specifically plead the bankruptcy order until after the trial, resulting in unfair notice, undue prejudice and surprise.

The court concluded that the plaintiffs reply did not satisfy the requirements set forth in Practice Book § 10-2 because it did not apprise the defendant of the factual basis for not filing her action within the statutory period. The court further concluded that the plaintiffs reply failed to conform to Practice Book § 10-57. That failure left the court and the defendants “to speculate as to whether the matter in avoidance is: (i) the binding effect of the bankruptcy order because it is federal in nature; (ii) the doctrine of tolling; (iii) the doctrines of waiver and/or estoppel.” In reaching its decision, the court focused only on the facial insufficiency of the plaintiffs reply and did not attempt to look at the pleadings and the record as a whole. Although we do not encourage this type of pleading, we conclude that the reply was legally sufficient.

Initially, we note that “[t]he interpretation of pleadings is always a question of law for the court”; (internal quotation marks omitted) Daley v. Wesleyan University, 63 Conn. App. 119, 127, 772 A.2d 725, cert. denied, 256 Conn. 930, 776 A.2d 1145 (2001); and, thus, our review is plenary. “Accordingly, we must determine whether, as a matter of law, the [pleadings were] legally sufficient.” Cotto v. United Technologies Corp., 251 Conn. 1, 42, 738 A.2d 623 (1999).

Our court has noted in the past that “[t]he complaint is required only to fairly put the defendant on notice of the claims against him.” (Internal quotation marks omitted.) Lyons v. Nichols, 63 Conn. App. 761, 764, 778 A.2d 246, cert. denied, 258 Conn. 906, 782 A.2d 1244 (2001). “As long as the pleadings provide sufficient notice of the facts claimed and the issues to be tried and do not suiprise or prejudice the opposing party, we will not conclude that the complaint is insufficient to allow recovery.” (Internal quotation marks omitted.) Dornfried, v. October Twenty-Four, Inc., 230 Conn. 622, 629, 646 A.2d 772 (1994).

When we review the legal sufficiency of a pleading, substance is considered over form. Our ultimate concern is to assure substantial justice between the parties and, thus, “[t]he modem trend, which is followed in Connecticut, is to constme pleadings broadly and realistically, rather than narrowly and technically. . . . Although essential allegations may not be supplied by conjecture or remote implication . . . the [pleading] must be read in its entirety in such a way as to give effect to the pleading with reference to the general theory upon which it proceeded . . . .” (Citations omitted; internal quotation marks omitted.) Id. Finally, the practice of reading pleadings broadly applies to special defenses as well. Doe v. Yale University, 252 Conn. 641, 683, 748 A.2d 834 (2000); see also Practice Book §§ 10-1 and 10-2.

We acknowledge that it would have been a better practice for the plaintiff to have specially alleged the factual basis for her claim of avoidance of the statute of limitations, rather than simply attaching the bankruptcy order to her reply. Nevertheless, our review of the plaintiffs pleading, in accordance with the foregoing legal principles, satisfies us that the pleadings in no way caused the defendant to suffer prejudice or surprise. It is clear from the record that the plaintiff relied on the Bankruptcy Court’s order as a defense to the statute of limitations. A fair reading of the whole of the pleadings convinces us that the plaintiffs original reply provided sufficient notice to the defendant and the court of the plaintiffs factual basis and theory in support of her claim of avoidance of the statute of limitations.

Although we conclude that the plaintiffs pleadings were legally sufficient, that does not end our analysis. The question remains whether the court improperly concluded that the bankruptcy order did not preclude the defendant from raising the statute of limitations as a special defense.

In deciding against the plaintiff, the court ruled that the bankruptcy estoppel order was unenforceable. The court based its conclusion on the following two critical determinations: “First, this court does not construe the bankruptcy order concerning the statute of limitations as having a preclusive effect on this court. The court is aware of no authority for a federal Bankruptcy Court to limit or control a party’s right to assert a defense in a state court lawsuit. Such court clearly has the right to determine the consequences for doing so when that party subsequently seeks relief from that court. That, however, is a matter for which this court has no concern.

“Second, the evidence demonstrates persuasively that there exists a substantial question as to whether [the defendant] knowingly and voluntarily waived the defense. The court reaches this conclusion on the basis of [the defendant’s] testimony and the record of pleadings before the Bankruptcy Court which evidences [his] attempt to have that prohibition set aside.”

We need not decide whether the court properly concluded that the Bankruptcy Court’s order was unenforceable; rather we will decide on a different ground. It is well settled that “[t]his court can sustain a decision on a theory different from that adopted by the trial court.” Tevolini v. Tevolini, 66 Conn. App. 16, 32, 783 A.2d 1157 (2001). Here, the Bankruptcy Court’s dismissal of the defendant’s petition before adjudication of the motion to vacate the estoppel order terminated the proceeding and rendered the estoppel order unenforceable. Therefore, the plaintiff had no basis to interpose that order in avoidance of the statute of limitations defense.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendants include the named defendant, Dennis Gorelick, individually and as trustee, as well as Glenn Gorelick, individually and as trustee, and Gail Gorelick, individually. The plaintiff appeals from only the judgment as to counts one, two and four, and briefed only her claims as to Dennis Gorelick. We refer to Dennis Gorelick as the defendant.

       The original plaintiff was Emily Montanaro, executrix of the estate of Ellen Berty. On June 18, 1999, Suzanne Sutton, the bankruptcy trustee for the defendant, was substituted as the plaintiff.

       The plaintiff also claims that her complaint sufficiently raised the bankruptcy order in avoidance of the statute of limitations and that the court improperly refused to rule on her posttrial motion to amend her reply. Those claims are subsumed in our discussion of the sufficiency of the reply.

       The bankruptcy order stated in relevant part: “ORDERED that the debtor, Dennis Gorelick, having waived any defense relying on the statute of limitations to the claim of fraudulent conveyances shall be estopped from asserting such defense in state court against the movant, Emily Montanaro [the original plaintiff in this action], in her suit against Dennis Gorelick.”

       The defendant and his attorney were not present at the November, 1997 hearing on the plaintiffs motion.

       General Statutes § 52-552j provides: “A cause of action with respect to a fraudulent transfer or obligation under sections 52-552a to 52-5521, inclusive, is extinguished unless action is brought: (1) Under subdivision (1) of subsection (a) of section 52-552e, within four years after the transfer was made or the obligation was incurred or, if later, within one year after the transfer or obligation was or could reasonably have been discovered by the claimant; (2) under subdivision (2) of subsection (a) of section 52-552e or subsection (a) of section 52-552f, within four years after the transfer was made or the obligation was incurred; or (3) under subsection (b) of section 52-552f, within one year after the transfer was made or the obligation was incurred.”

       Practice Book § 10-2 provides in relevant part: “Acts and contracts may be stated according to their legal effect, but in so doing the pleading should be such as fairly to apprise the adverse party of the state of facts which it is intended to prove. . . .”

       Practice Book § 10-57 provides: “Matter in avoidance of affirmative allegations in an answer or counterclaim shall be specially pleaded in the reply. Such a reply may contain two or more distinct avoidances of the same defense or counterclaim, but they must be separately stated.”

       Practice Book § 10-1 provides: “Each pleading shall contain a plain and concise statement of the material facts on which the pleader relies, but not of the evidence by which they are to be proved, such statement to be divided into paragraphs numbered consecutively, each containing as nearly as may be a separate allegation. If any such pleading does not fully disclose the ground of claim or defense, the judicial authority may order a fuller and more particular statement; and, if in the opinion of the judicial authority the pleadings do not sufficiently define the issues in dispute, it may direct the parties to prepare other issues, and such issues shall, if the parties differ, be settled by the judicial authority.”

       The plaintiff asserts that the only issue before us is the legal sufficiency of her reply because the court’s decision on that issue is the determinative ruling. She claims that, consequently, the trial court’s legal conclusions as to the efficacy of the Bankruptcy Court order are premature and irrelevant. She argues that if we conclude that her reply is legally sufficient, then she is entitled to a new trial. We disagree. Despite its conclusion that the reply was legally insufficient, the court still considered the claim as to the Bankruptcy Court order on the merits and rejected the claim. The plaintiff is not entitled to a “second bite of the apple.”

       Here, the defendant entered into evidence a copy of the bankruptcy order. We take judicial notice of the Bankruptcy Court’s proceedings. See McCarthy v. Warden, 213 Conn. 289, 293, 567 A.2d 1187 (1989) (court took judicial notice of court pleadings in federal District Court even though that file was not formally made part of record in state court), cert. denied, 496 U.S. 939, 110 S. Ct. 3220, 110 L. Ed. 2d 667 (1990).

       Although the plaintiff had the opportunity to brief that issue, she chose not to do so, dismissing this claim, as well as the defendants other claimed grounds for affirmance, as irrelevant.


author: WEST, J.

text:
    ANN BARRETT v. HEBREW HOME AND HOSPITAL, INC.
    (AC 22231)
    Flynn, Bishop and West, Js.
    Argued May 30 —
    officially released October 29, 2002

      James V. Sabatini, with whom, on the brief, was Vincent F. Sabatini, for the appellant (plaintiff).

      Michael Kurs, with whom was Alan I. Scheer, for the appellee (defendant).
   Opinion

WEST, J.

This appeal arises out of an action brought by the plaintiff, Ann Barrett, pursuant to General Statutes § 31-290U, against her former employer, the defendant, Hebrew Home and Hospital, Inc., alleging that the defendant wrongfully terminated her employment because, prior to her discharge, she had filed claims for workers’ compensation benefits or otherwise exercised her workers’ compensation rights. The trial court rendered judgment in accordance with the jury’s verdict in favor of the defendant. On appeal, the plaintiff claims that the court improperly (1) instructed the jury and (2) denied her motion to set aside the verdict. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts from the evidence presented at trial. During 1984, the plaintiff was hired by the defendant as a certified nursing assistant (nursing assistant). A nursing assistant’s primary responsibility, as set forth in a written job description, was to take care of patients, including, inter alia, turning and lifting, where necessary, some very debilitated and some very heavy total care residents. Throughout the period of the plaintiffs employment, the defendant maintained a written policy against the assignment of nursing assistants to permanent light duty.

On September 8, 1993, while assisting a patient, the plaintiff injured her neck and right shoulder. Subsequently, she filed a workers’ compensation claim, and several months later, as a result of those injuries, she was placed on light duty for approximately one month. On February 6,1995, the plaintiff underwent an independent medical examination, was diagnosed as having a chronic cervical sprain and was assigned a 2.5 percent permanent partial disability of the cervical spine. Thereafter, during July, 1996, the plaintiff suffered injuries to her back and leg and again sought workers’ compensation benefits. As a consequence of those injuries, the plaintiffs physician indicated that she should be assigned to light duty. The plaintiff performed a light duty assignment until her dismissal by the defendant on November 25,1996. Her employment was terminated after the defendant was advised by the plaintiffs physician that the plaintiff had a permanent lifting restriction requiring that she be assigned to permanent light duty in contravention of the defendant’s written policy.

Subsequently, the plaintiff brought an action claiming wrongful termination of her employment. The court instructed the jury and, in doing so, directed the jury to answer “yes” to the second of four interrogatories given to the jury to assist it in reaching its verdict. Specifically, the court instructed the juiy to answer “yes” that the defendant had produced evidence that its termination of the plaintiffs employment was based on a legitimate, nonretaliatory reason. The jury returned the interrogatories, having answered “yes” to the second, as directed, and “no” to the first, and returned a verdict in favor of the defendant, which the plaintiff thereafter moved to set aside. The court denied the motion and rendered judgment in accordance with the jury’s verdict. The plaintiff appealed. Other facts will be discussed where relevant.

I

The plaintiffs first claim is that the court improperly instructed the jury regarding the three step, shifting burden analysis adopted by our Supreme Court in Ford v. Blue Cross & Blue Shield of Conneclicut, Inc., 216 Conn. 40, 53-54, 578 A.2d 1054 (1990).* *** As a consequence of the court’s allegedly improper instruction, the plaintiff claims that she was “unquestionably harmed” such that her motion to set aside the verdict should have been granted. We disagree.

“Our standard of review concerning claims of instructional error is well settled. [J]ury instructions must be read as a whole and . . . are not to be judged in artificial isolation from the overall charge. . . . The whole charge must be considered from the standpoint of its effect on the jurors in guiding them to a proper verdict . . . and not critically dissected in a microscopic search for possible error. . . . The instruction must be adapted to the issues and may not mislead the jury but should reasonably guide it in reaching a verdict. . . . We must review the charge as a whole to determine whether it was correct in law and [whether it] sufficiently guided the jury on the issues presented at trial. . . .

“Our standard of review on this claim is whether it is reasonably probable that the jury was misled. . . . The test of a court’s charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. . . . Therefore, jury instructions need not be exhaustive, perfect, or technically accurate. Nonetheless, the trial court must correctly adapt the law to the case in question and must provide the jury with sufficient guidance in reaching a correct verdict.” (Internal quotation marks omitted.) Marshall v. O’Keefe, 55 Conn. App. 801, 804-805, 740 A.2d 909 (1999), cert. denied, 252 Conn. 918, 744 A.2d 438 (2000).

The plaintiff contends that her proposed charge, or one substantially similar to it, should have been given to the jury because her charge reviewed the elements of a prima facie case, informed the jury as to how she could have demonstrated a causal connection between the filing of a workers’ compensation claim and the termination of her employment by the defendant, and it explained that she had the opportunity to show that the defendant’s proffered nondiscriminatory reasons for her discharge were a pretext. The plaintiff claims that her requested charge was adequate and proper while the court’s charge to the jury was deficient and misleading. Of course, the question under consideration by this court, in that regard, is not whether the trial court should have given the proposed charge to the jury, but whether the instructions that were given were correct in law, adapted to the issues, sufficient for the guidance of the jury and “whether it is reasonably probable that the jury was misled.” (Internal quotation marks omitted.) Geary v. Wentworth Laboratories, Inc., 60 Conn. App. 622, 625, 760 A.2d 969 (2000). Furthermore, “[a] refusal to charge in the exact words of a request will not constitute error if the requested charge is given in substance.” (Internal quotation marks omitted.) Bovat v. Waterbury, 258 Conn. 574, 592, 783 A.2d 1001 (2001).

To determine whether the court charged the jury in accordance with the law we look to the rule established in Ford v. Blue Cross & Blue Shield of Connecticut, Inc., supra, 216 Conn. 53-54, which is applicable in retaliatory discharge cases, including those brought pursuant to § 31-290a. “The plaintiff bears the initial burden of proving by the preponderance of the evidence a prima facie case of discrimination. [McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973)]. In order to meet this burden, the plaintiff must present evidence that gives rise to an inference of unlawful discrimination. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981). If the plaintiff meets this initial burden, the burden then shifts to the defendant to rebut the presumption of discrimination by producing evidence of a legitimate, nondiscriminatoiy reason for its actions. McDonnell Douglas Corporation v. Green, supra [802], If the defendant carries this burden of production, the presumption raised by the prima facie case is rebutted, and the factual inquiry proceeds to a new level of specificity. Texas Department of Community Affairs v. Burdine, supra, 255. The plaintiff then must satisfy her burden of persuading the factfinder that she was the victim of discrimination either directly by persuading the court [or jury] that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence. Id., 256; see McDonnell Douglas Corporation v. Green, supra, 804-805.” (Internal quotation marks omitted.) Ford v. Blue Cross & Blue Shield of Connecticut, Inc., supra, 53-54.

Although the plaintiff asks this court to examine each of the three steps in the Ford test, we need only address the first two steps here because they are dispositive of her claims. The relevant inquiry with respect to the plaintiff’s appeal is whether the court failed to charge the jury as to the first step of the Ford test and, second, whether the court improperly charged the juiy to find that the defendant had discharged the plaintiff for a legitimate, nonretaliatory reason.

With respect to the plaintiffs first instructional claim, we have reviewed the court’s charge as to the first step of the Ford test and conclude that it was adapted to the evidence and correct in the law. After explaining direct and circumstantial evidence, the court marshaled the evidence presented by the plaintiff and instructed that “[f]irst, you must determine whether [the plaintiff] has offered evidence from which you could conclude or infer that the [defendant] retaliated against her in November of 1996 because she had previously filed claims for workers’ compensation benefits or otherwise exercised her rights.” That instruction corresponded with the first of the four jury interrogatories. On the basis of our review, we conclude that the court’s instruction was not likely to have confused the jury as to the elements of a prima facie case, which is the first step of the burden shifting analysis test.

The plaintiff’s second claim is that the court’s charge as to the second step of the Ford test was improper because the court instructed the jury that the defendant had proven that its reason for discharging the plaintiff was nonretaliatory and to answer the second interrogatory in the defendant’s favor, thus directing the juiy verdict.

The relevant facts from the pertinent part of the court’s charge follow. “If the plaintiff, in your opinion, has met her burden of offering evidence from which you could conclude that she was terminated in retaliation for filing workers’ compensation claims or otherwise exercising her rights, you must next consider whether the [defendant] has offered any nonretaliatory reason for terminating [the plaintiffs employment].

“The [defendant] has satisfied its burden so long as it offered an explanation that its decision was based on factors other than [the plaintiffs] filing for workers’ compensation benefits or otherwise exercising her rights.

“The [defendant] does not have to prove those reasons to you, nor is it necessary that you agree with the reasons given. The [defendant] has offered evidence that the plaintiffs employment was terminated because of a permanent lifting restriction imposed by her doctor and the [defendant’s] policy not to provide permanent light duty assignments for nursing assistants. Therefore, I direct you to find that the [defendant] has offered a nonretaliatory reason for its decision and has met its burden.”

As directed, the jury answered the second interrogatory in the affirmative and, after deliberating, answered the first in the negative and returned a defendant’s verdict determining that the plaintiff had failed to offer credible evidence supportive of a conclusion that the defendant had terminated her employment in retaliation for the exercise of her workers’ compensation rights.

The plaintiff in her brief contends that “[d]irecting the jury to answer [the second interrogatory] could only have led to confusion among jury members. In effect, the court took the case away from the jury. By telling the jury that the defendant had offered a legitimate, nondiscriminatory reason, the jury members believed the [defendant] because they were instructed that the defendant’s reason was legitimate. There was nothing left for the jury to decide.”

Undoubtedly, question two of the interrogatories was drawn from the second step of the Ford test. The court properly instructed the jury on the law. The question, however, is whether it was appropriate for the court to instruct the jury how to answer the second interrogatory. Although the court improperly instructed the jury as to how it should answer the second interrogatory, in doing so, the court caused the plaintiff no “unquestionable harm” as a matter of law. See Diaz v. Housing Authority, 258 Conn. 724, 731-32, 785 A.2d 192 (2001) (failure to apply burden shifting analysis harmless error where facts unequivocally dictate result). Pursuant to the Ford test, if the plaintiff presents evidence that gives rise to a reasonable inference that her discharge was in retaliation for exercising workers’ compensation rights, the burden of production, not proof, shifts to the defendant to rebut that presumption by providing evidence of a legitimate reason for terminating the plaintiffs employment. It is clear from the record that the defendant offered evidence of nonretaliatory reasons for the plaintiffs discharge. Consequently, the defendant met and satisfied its burden of production and, therefore, the court’s direction to the jury regarding the second interrogatory was harmless under the facts of this case. More significant, however, is the fact that the jury determined pursuant to its answer to the first interrogatory that the plaintiff had failed to make out a prima facie case and, thus, the jury never would have reached the second interrogatory, save for the fact that the court directed the answer to that interrogatory.

II

Finally, the plaintiff claims that the court improperly denied her motion to set aside the jury’s verdict. The plaintiffs motion was based solely on her claim that the court’s instructions to the jury were improper.

“In reviewing the action of the trial court in denying [a motion] ... to set aside [a] verdict, our primary concern is to determine whether the court abused its discretion and we decide only whether, on the evidence presented, the jury could fairly reach the verdict [it] did.” (Internal quotation marks omitted.) Daigle v. Metropolitan Property & Casualty Ins. Co., 60 Conn. App. 465, 476, 760 A.2d 117 (2000), aff'd, 257 Conn. 359, 777 A.2d 681 (2001). Because this court has determined the plaintiffs instructional claim to be without merit, her motion to set aside the verdict properly was denied.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 31-290a provides: “(a) No employer who is subject to the provisions of this chapter shall discharge, or cause to be discharged, or in any manner discriminate against any employee because the employee has filed a claim for workers’ compensation benefits or otherwise exercised the rights afforded to him pursuant to the provisions of this chapter.
      “(b) Any employee who is so discharged or discriminated against may either: (1) Bring a civil action in the superior court for the judicial district where the employer has its principal office for the reinstatement of his previous job, payment of back wages and reestablishment of employee benefits to which he would have otherwise been entitled if he had not been discriminated against or discharged and any other damages caused by such discrimination or discharge. The court may also award punitive damages. Any employee who prevails in such a civil action shall be awarded reasonable attorney’s fees and costs to be taxed by the court; or (2) file a complaint with the chairman of the Workers’ Compensation Commission alleging violation of the provisions of subsection (a) of this section. Upon receipt of any such complaint, the chairman shall select a commissioner to hear the complaint, provided any commissioner who has previously rendered any decision concerning the claim shall be excluded. The hearing shall be held in the workers’ compensation district where the employer has its principal office. After the hearing, the commissioner shall send each party a written copy of his decision. The commissioner may award the employee the reinstatement of his previous job, payment of back wages and reestablishment of employee benefits to which he otherwise would have been eligible if he had not been discriminated against or discharged. Any employee who prevails in such a complaint shall be awarded reasonable attorney’s fees. Any party aggrieved by the decision of the commissioner may appeal the decision to the Appellate Court.”

       The plaintiff articulated her claims as follows: “1. Did the trial court, adequately set out the three-step ‘shifting-burden analysis’ test. 2. Did the trial court err in failing to set out the elements of a prima facie case of retaliatory discharge (first step of shifting-burden analysis). 3. Did the trial court err in not instructing the jury how the plaintiff could demonstrate a casual connection between filing a workers’ compensation claim and being terminated (part [b] of the first step, prima facie case). 4. Did the trial court err in instructing the jury that it should answer the second interrogatory question in the affirmative (second step of shifting burden analysis). 5. Did the trial court err in instructing the jury on the third step of the shifting burden analysis test. 6. Did the trial court err in refusing to set aside the verdict.”

       The plaintiff claims to have been a nurse assistant at the time she was hired by the defendant, but she did not possess the requisite certificate. She obtained the certificate in 1990.

       The jury was asked to answer the following questions in rendering its verdict:
      “1. Has [the plaintiff] offered evidence from which you can conclude that the [the defendant’s] termination of her employment was in retaliation for her filing claims for workers’ compensation or otherwise exercising her rights under the Workers’ Compensation Act?
      _YES JL NO
      If YES, continue to question #2. If NO, complete Defendant’s Verdict Form.
      “2. Has the [the defendant] produced evidence that the termination of [the plaintiff] was based on a legitimate, non-retaliatory reason?
      X YES_NO
      Continue to question #3.
      “3. Has [the plaintiff] proven by a preponderance of the evidence, that is, that it is more likely than not, that the reason given by [the defendant] is not worthy of belief and was not the real reason for terminating her employment?
      _YES ___ NO
      If YES, continue to question #4. If no, complete Defendant’s Verdict Form.

        “4. Has [the plaintiff] proven by a preponderance of the evidence, that is, that it is more likely than not, that the real reason for her employment being terminated was in retaliation for her previously filing a claim for workers’ compensation or otherwise exercising her rights under the Workers’ Compensation Act [General Statutes § 31-275 et seq.]?
      _YES_NO
      If YES, complete Plaintiffs Verdict Form. If no, complete Defendant’s Verdict form.”

       In Ford v. Blue Cross & Blue Shield of Connecticut, Inc., supra, 216 Conn. 53-54, our Supreme Court adopted for use in actions under General Statutes § 31-290a the basic allocation of burdens and the order of presentation of proof set forth by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973).

       The Ford test is in three parts. The jury need not consider steps two and three if it determines that the plaintiff has failed to make out a prima facie case. See footnote 4, jury interrogatory number one. Because the jury concluded that the plaintiff had failed to make out a prima facie case, we need not address the plaintiffs claims as to the third step of the Ford test. We address the second step because the court directed the jury to answer the question and then consider the first step.

       The court instructed the jury in relevant part as follows: “In deciding whether the [defendant] intentionally retaliated against [the plaintiff], you must determine what motivated [the plaintiffs supervisor, Kathy] Hamlin and the other agents of the [defendant] who participated in the decision to terminate her employment.
      “In retaliatory termination cases like this one, the courts have set out a three step process for juries to use in considering a claim that an employee has been unlawfully terminated.
      “First, you must determine whether [the plaintiff] has offered evidence from which you could conclude or infer that the [defendant] retaliated against her in November of 1996 because she had previously filed claims for workers’ compensation benefits or otherwise exercised her rights.

        “If you decide that there is no evidence from which you could conclude that Ms. Hamlin and the others who participated in the termination decision, terminated [the plaintiffs employment] because she had previously had filed claims or otherwise exercised her rights, then you must deliberate no further and find for the [defendant] by returning a defendant’s verdict.”

       The court further explained the relevant standard in the following manner. “Because the [defendant] has presented a legitimate, nonretaliatory reason for terminating [the plaintiffs employment], you must find for the [defendant] in this case unless [the plaintiff] can prove, and has proven, by a preponderance of the evidence that the reason given by the [defendant] is unworthy of belief and was not the real reason for its decision, and that Ms. Hamlin’s real reason for terminating her was to retaliate against her because she had previously filed claims or otherwise exercised her workers’ compensation rights. In other words, [the plaintiff] must prove that the [defendant’s] stated reason was merely a pretext and not the real reason. If you find that [the plaintiff] has not proven this, then you must find in favor of the [defendant] and return a defendant’s verdict.”