author: BISHOP, J.

text:
    STATE OF CONNECTICUT v. SCOTT WINER
    (AC 22091)
    Foti, Dranginis and Bishop, Js.
    Argued January 6, 2003
    officially released March 11, 2003

      Louis S. Avitabile, special public defender, for the appellant (defendant).

      James M. Ralls, assistant state’s attorney, with whom, on the brief, were Scott J. Murphy, state’s attorney, and Ronald Dearstyne, assistant state’s attorney, for the appellee (state).
   Opinion

BISHOP, J.

The defendant, Scott Winer, appeals from the judgment of the trial court revoking his probation and sentencing him to a period of incarceration. On appeal, he claims that the trial court improperly (1) denied his postsentence motion to vacate the underlying judgments of conviction and to withdraw his pleas of nolo contendere because they were involuntary, unknowing and unconstitutional, (2) found that he had violated the terms of his probation and (3) revoked his probation and committed him to the commissioner of corrections. We affirm the judgment of the trial court.

The factual background of this case is set forth in State v. Winer, 69 Conn. App. 738, 740-41, 796 A.2d 491, cert. denied, 261 Conn. 909, 806 A.2d 50 (2002). “The defendant was arrested for a series of acts of sexual misconduct that occurred between July, 1995, and March, 1997, involving three different males under the age of sixteen. On January 5, 1998, the defendant, who was represented by counsel, entered three nolo contendere pleas to the charges of risk of injury to a child. In exchange for entering the pleas, the trial court agreed that the maximum sentence of incarceration that it would impose on the defendant would be two years. The defendant was informed during the canvass that if the sentence exceeded two years, he could withdraw the pleas. The defendant, however, was specifically informed that the sentence could include a suspended term of thirty years. Sentencing was postponed until the court received the presentence report and an alternative incarceration plan. On March 26, 1998, the defendant was sentenced to eight years of incar ceration, execution suspended after two years, and was placed on probation with special conditions for a period of five years.

“On September 27,1999, the defendant filed a motion seeking to vacate the judgments and to withdraw his pleas of nolo contendere. During a hearing on the motion, the defendant claimed that he should be permitted to withdraw his pleas and to plead anew because they were not made knowingly and intelligently. The trial court denied the motion, and the defendant appealed.

“The defendant was released from custody on March 24, 2000, and his five year probation commenced. On March 27, 2000, the defendant reported to the office of adult probation and informed his probation officer that he would be residing in Massachusetts. The defendant was told that this would be a violation of his probation and that he could not leave the state until he received formal permission. The commonwealth of Massachusetts subsequently denied the defendant’s request for an interstate compact transfer. On March 28, 2000, the defendant failed to report to a scheduled meeting with his probation officer and, on March 29, 2000, he failed to contact the office of adult probation, as was required.” Id. He also failed to contact the sex offender registry to verily his address after being advised to do so. “A warrant was issued for the defendant’s arrest for violating the terms of his probation, and he was arrested on April 3, 2000. The defendant is currently incarcerated as a result of violating his probation.” Id., 741. Additional facts will be set forth as necessary.

I

The defendant first claims that the court improperly denied his postsentence motion to vacate the judgments and to withdraw his pleas of nolo contendere because they were involuntary, unknowing and unconstitutional. The short answer to this claim is that it has already been decided in State v. Winer, supra, 69 Conn. App. 742-53. We will not review that claim again.

II

The defendant next claims that the court improperly found that he had violated the terms of his probation. We disagree.

“A revocation of probation hearing has two distinct components and two purposes. A factual determination by a trial court as to whether a probationer has violated a condition of probation must first be made. If a violation is found, a court must next determine whether probation should be revoked because the beneficial aspects of probation are no longer being served. . . .

“A trial court initially makes a factual determination of whether a condition of probation has been violated. In making its factual determination, the trial court is entitled to draw reasonable and logical inferences from the evidence. . . . Our review is limited to whether such a finding was clearly erroneous. ... 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. ... In making this determination, every reasonable presumption must be given in favor of the trial court’s ruling.” (Internal quotation marks omitted.) State v. Waskiewicz, 68 Conn. App. 367, 369-70, 789 A.2d 1164 (2002).

The record supports the court’s finding that the defendant violated the conditions of his probation requiring him to register as a sex offender three days after release, to keep his probation officer informed of his whereabouts and to give such officer immediate notice of any change of address. The court heard evidence that the defendant failed to report, on March 28,2000, to a scheduled meeting with his probation officer, and that on March 29, 2000, he failed to contact the office of adult probation to inform the officer of his whereabouts, as was required by the conditions of his probation. Given those instances of noncompliance, the trial court’s finding that the defendant violated the terms of his probation was not clearly err oneous.

Ill

We next must turn to the defendant’s last claim that the court improperly revoked his probation and committed him to the custody of the commissioner of correction. We disagree.

The following facts are necessary for the resolution of the defendant’s claim. After the defendant was released from custody in March, 2000, his probation commenced. Once the court found, at the revocation of probation hearing, that the defendant had violated the conditions of his probation, the court next proceeded to the sentencing phase of the healing. It then determined that the defendant’s probation should be revoked because the beneficial aspects of probation were no longer being served. The court thereby imposed the remaining six - years of the defendant’s sentence.

In reviewing the defendant’s claim, we note that the “standard of review of the trial court’s decision at the sentencing phase of the revocation of probation hearing is whether the trial court exercised its discretion properly by reinstating the original sentence and ordering incarceration. ... In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court’s ruling. . . . Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done.” (Citations omitted; internal quotation marks omitted.) Id., 370.

Once the court proceeded to the dispositional phase of the hearing, it found that the beneficial purposes of the defendant’s probation no longer were being served because he had not “made a reasonable attempt to alter [his] lifestyle, to be in compliance with the conditions of probation.” Additionally, the court found that the defendant was manipulative and that he interpreted directions given to him by his probation officer in a maimer that suited him instead of complying with instructions. The court’s determination to impose the remainder of the defendant’s sentence, under those circumstances, was an appropriate exercise of judicial discretion.

The judgment is affirmed.

In this opinion the other judges concurred.


source: Caselaw Access Project

author: LAVERY, C. J.

license: Public Domain

text:
    LEE G. WACHTER v. UDV NORTH AMERICA, INC.
    (AC 22809)
    Lavery, C. J., and Dranginis and Peters, Js.

      Argued December 3, 2002
    officially released March 11, 2003

      Scott R. Lucas, with whom was Mary Alice S. Canaday, for the appellant (plaintiff).

      Conrad S. Kee, with whom, on the brief, were Seth F. Eisenberg and Christine Shields, for the appellee (defendant).
   Opinion

LAVERY, C. J.

The plaintiff, Lee G. Wachter, appeals from the order of the trial court denying his motion to vacate an arbitration award rendered in favor of the defendant, UDV North America, Inc. On appeal, the plaintiff claims that (1) the arbitration award violated public policy, (2) the arbitrator manifestly disregarded the law and (3) the arbitration award violated his rights to his extreme prejudice. We affirm the judgment of the trial court.

The following facts and procedural history are necessary for the resolution of the plaintiffs appeal. On or about May 19, 2000, the plaintiff entered into a written employment agreement with the defendant to serve as its senior vice president-information systems in the defendant’s Stamford office. The plaintiff was to receive $250,000 annually as a base salary. He was also entitled to participate in the defendant’s economic profit incentive plan (incentive plan) and a share plan. On January 10, 2001, the plaintiffs employment was terminated without cause by the defendant pursuant to paragraph 4.4 of the employment agreement. The defendant stated in its termination letter that it would pay the plaintiff in lieu of requiring his services for the ninety day notice period.

The plaintiff was entitled to certain compensation upon his termination according to paragraph 5 (c) of the employment agreement, including (1) any unpaid portion of his salary and any unpaid amounts under any compensation plan the plaintiff was entitled to through the effective date of termination, (2) two years salary plus 50 percent of the remaining balance of the incentive plan “bonus bank” in exchange for a release approved by the defendant, and (3) federally required medical, dental or vision coverage for a period of twelve months from the date of termination unless the plaintiff became eligible for coverage under a comparable plan with a new employer.

Also on January 10, 2001, the defendant provided a release agreement to the plaintiff and asked that it be returned within twenty-one days. The release offered the plaintiff (1) a sum of $62,500 in lieu of the required ninety day notice period, (2) two years base salary, (3) certain rights regarding the federally required medical coverage and (4) $80,156.50 from the incentive plan bonus bank. The severance package of the two years salary and the incentive plan bonus bank for which the release was exchanged totaled $580,156.50 (severance package). The release deferred any determination of compensation owed to the plaintiff from the share plan to the terms of that plan concerning the vesting of benefits. To receive the enumerated benefits, the plaintiff would have to agree to waive any rights or claims he may have against the defendant. The plaintiff refused to sign the release. The reasons for his refusal to sign the release were that it contained an incorrect termination date and did not provide him with the benefits to which he believed he was entitled under the incentive plan and the share plan. The defendant extended the time for the plaintiff to sign the release from January 21 until February 26, 2001. The defendant also acknowledged the incorrect termination date and provided the plaintiff with the benefits to which he was entitled during the ninety day notice period.

On February 28, 2001, the plaintiff filed a claim with the American Arbitration Association pursuant to paragraph eighteen of the employment agreement. In his complaint, the plaintiff sought recovery of sums pursuant to the severance package and compensation under the incentive plan and share plan. Furthermore, the plaintiff sought damages under theories of breach of the covenant of good faith and fair dealing, violation of General Statutes § 31-72 for unpaid wages and negligent infliction of emotional distress. The arbitrator, Carol K. Young, issued a written award on November 1, 2001. She determined that the plaintiffs failure to sign the release and his institution of the arbitration proceedings constituted a waiver of his rights to the severance package. In addition, the arbitrator found that the terms of incentive plan and share plan gave discretion to the duly appointed individuals of the defendant to determine what benefits, if any, the plaintiff was entitled to receive upon cessation of his employment and that those individuals appropriately had exercised their discretion in finding that the plaintiff was not entitled to any benefits under those plans. The arbitrator also found that there was no basis for the plaintiffs claim that the unpaid severance package amounted to improperly withheld wages under § 31-72. The remainder of the plaintiffs claims were summarily rejected by the arbitrator.

On November 21, 2001, the plaintiff filed an application to vacate the arbitration award pursuant to General Statutes § 52-418 (a) (3) and (4), alleging that the award violated public policy and constituted a manifest disregard of the law. The court heard argument on December 17, 2001, and reviewed the exhibits presented at the arbitration hearing. On February 11, 2002, the court issued an oral decision from the bench. The court, applying Connecticut arbitration law, denied the plaintiffs application to vacate the arbitration award. This appeal followed.

“[T]he law in this state takes a strongly affirmative view of consensual arbitration. . . . Arbitration is a favored method to prevent litigation, promote tranquility and expedite the equitable settlement of disputes. ... As a consequence of our approval of arbitral proceedings, our counts generally have deferred to the award that the arbitrator found to be appropriate. . . . The scope of review for arbitration awards is exceedingly narrow. . . . Additionally, every reasonable inference is to be made in favor of the arbitral award and of the arbitrator’s decisions.” (Citations omitted; internal quotation marks omitted.) Rocky Hill Teachers’ Assn. v. Board of Education, 72 Conn. App. 274, 278, 804 A.2d 999, cert. denied, 262 Conn. 907, 810 A.2d 272 (2002).

“These well established principles governing consensual arbitration are subject to certain exceptions. Even in the case of an unrestricted submission, we have, however, recognized three grounds for vacating an award: (1) the award rules on the constitutionality of a statute ... (2) the award violates clear public policy ... or (3) the award contravenes one or more of the statutory proscriptions of [General Statutes] § 52-418.” (Internal quotation marks omitted.) Local 1042, Council 4, AFSCME, AFL-CIO v. Board of Education, 66 Conn. App. 457, 463, 784 A.2d 1018 (2001). Section 52-418 provides for the vacation of an arbitral award under the following circumstances: “(1) If the award has been procured by corruption, fraud or undue means; (2) if there has been evident partiality or corruption on the part of any arbitrator; (3) if the arbitrators have been guilty of misconduct in refusing to postpone the hearing upon sufficient cause shown or in refusing to hear evidence pertinent and material to the controversy or of any other action by which the rights of any party have been prejudiced; or (4) if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definitive award upon the subject matter submitted was not made.”

We conclude that the plaintiffs claims are frivolous and without merit. The plaintiffs first claim is that the arbitration award violated the public policy favoring arbitration. That claim is disingenuous. Although Connecticut recognizes the public policy favoring arbitration, the facts of this case belie the plaintiffs assertion that this policy was implicated. The employment agreement specifically provided for the arbitration of disputes. It was the plaintiff who initiated the arbitration proceedings. In addition, the plaintiff had a full arbitral hearing of his disputes against the defendant. The fact that the plaintiff is disappointed with the result of arbitration does not mean that the public policy favoring arbitration was violated.

The plaintiffs second claim is that the trial court should have determined that the arbitrator manifestly disregarded the law regarding the implied covenant of good faith and fair dealing. That, he contends, warrants vacation of the arbitration award under § 52-418 (a) (4). The plaintiff, however, is mistaken. The thrust of the plaintiffs claim is that he disagrees with the arbitrator’s conclusion that the defendant did not act in bad faith. Because the arbitration clause was an unrestricted submission, we will not review the arbitrator’s legal conclusions. “Where the submission does not otherwise state, the arbitrators are empowered to decide factual and legal questions and an award cannot be vacated on the grounds that the construction placed upon the facts or the interpretation of the agreement by the arbitrators was erroneous. Courts will not review the evidence nor, where the submission is unrestricted, will they review the arbitrators’ decision of the legal questions involved.” (Internal quotation marks omitted.) Id., 461. Even if we were to review the claim, our analysis would be hindered because the plaintiff has failed to provide this court with the transcript of the arbitration hearing. See Practice Book § 61-10.

Finally, we decline to review the plaintiffs third claim that the arbitration award violated his rights to his extreme prejudice. The plaintiff provides no case law or analysis of his claim in his brief. “We are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly. . . . We will not review claims absent law and analysis.” (Internal quotation marks omitted.) State v. Pulaski, 71 Conn. App. 497, 499 n.4, 802 A.2d 233 (2002). Because the plaintiffs brief is inadequate, we deem his third claim abandoned and, therefore, decline to afford it review.

The judgment is affirmed.

In this opinion the other judges concurred.

       Paragraph 4.4 of the employment agreement states: “The [defendant] may terminate this Agreement and [the plaintiffs] employment without Cause at any time on ninety (90) [days] advance written notice to [the plaintiff].”

       Paragraph 5 (c) (ii) of the employment agreement states in relevant part that “in lieu of any further Base Salary and Incentive payments to [the plaintiff] for periods subsequent to the Date of Termination and in exchange for a release approved by the [defendant], the [defendant] shall pay an additional sum equal to twenty four (24) months of Base Salary at the rate in effect at the time Notice of Termination is given, such amount to be paid, at [the plaintiffs] sole election, in substantially equal monthly installments or a lump sum plus 50% of remaining balance of the Incentive Plan bonus bank . . . .”

       The release states in relevant part: “[The plaintiff agrees] that the compensation and benefits arrangements set forth in this agreement constitute consideration for this agreement to which you would not otherwise be entitled and are in lieu of any rights or claims that you may have with respect to separation benefits, or any other form of remuneration from the [defendant] or any of its affiliates, and in consideration thereof, after the opportunity to consult legal counsel, you . . . forever waive all claims, rights and causes of action . . . that you . . . may have .... By signing this release you will have waived any right you may have to pursue or bring a lawsuit or make any legal claim against the [defendant] based on any actions taken by the [defendant] up to the date of the signing of this release. Except nothing provided for under this release and agreement limits any rights you may have to enforce the terms of this agreement ... or your rights under [federal law to certain medical coverage].”

       Paragraph eighteen states in relevant part that the parties “mutually consent to the resolution by arbitration of all claims or controversies, whether or not arising out of [the plaintiffs] employment or its termination, that [the plaintiff] may have against the [defendant], or against its directors, officers, employees or agents, or that the [defendant] may have against [the plaintiff].”

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

       No transcripts were provided to the court.

       On appeal, the plaintiff has failed to provide this court with a signed transcript of the court’s oral decision as required by Practice Book § 64-1 (a). “We have frequently declined to review claims where the appellant has failed to provide the court with an adequate record for review.” Bank of America, FSB v. Franco, 57 Conn. App. 688, 691 n.1, 751 A.2d 394 (2000). “This court, however, has the discretion to consider an appeal on its merits despite this procedural irregularity if the transcript contains a sufficiently detailed and concise statement of the trial court’s findings.” (Internal quotation marks omitted.) State v. Nesteriak, 60 Conn. App. 647, 651 n.6, 760 A.2d 984 (2000). Because the transcript, which the defendant provided in the appendix to its brief, contains a thorough statement of the court’s decision and reasoning, we will review the merits of the plaintiff’s claims.

       See Board of Education v. East Haven Education Assn., 66 Conn. App. 202, 207, 784 A.2d 958 (2001).

       A submission to arbitration is unrestricted if there is no express language restricting the breadth of issues, reserving explicit rights or conditioning the award on court review. See Local 1042, Council 4, AFSCME, AFL-CIO v. Board of Education, supra, 66 Conn. App. 460.


text:
    PAUL TOLK v. EDWARD H. WILLIAMS
    (AC 22358)
    Lavery, C. J., and Bishop and Hennessy, Js.
    Argued December 4, 2002
    officially released March 18, 2003

      Thomas L. Kanasky, Jr., for the appellant (plaintiff).

      Robert P. Hanahan, with whom, on the brief, was James T. Ryan, for the appellee (defendant).
   Opinion

LAVERY, C. J.

In this action to recover real estate commissions, the plaintiff, Paul Tolk, appeals from the judgment of the trial court, rendered in favor of the defendant, Edward H. Williams, in accordance with the report of an attorney trial referee (referee). On appeal, the plaintiff claims that the court improperly accepted the report because the referee incorrectly concluded that the listing agreement was unenforceable pursuant to General Statutes (Rev. to 1989) § 20-325a. We reverse the judgment of the trial court.

The record reveals the following facts and procedural history, which are relevant to the plaintiffs appeal. On November 14,1995, the plaintiff commenced this action to recover real estate commissions in connection with a certain parcel of real estate in Southbury known as Hunters Ridge Estates. In his amended complaint, the plaintiff alleged that on October 25, 1989, the Alan Fischer Companies, Inc., doing business as Fischer Commercial (Fischer Commercial), entered into a written agreement with the defendant, the owner and developer of the subject property, giving Fischer Commercial the exclusive right to sell lots on the property from October 25,1989, to October 24,1992. The plaintiff also alleged that when the agreement was signed, he was a licensed real estate salesperson working for Fischer Commercial and that he signed the exclusive listing agreement as Fischer Commercial’s agent. The plaintiff further alleged that Fischer Commercial assigned its interest in the listing agreement to him and that he is entitled to commissions on all the lots that the defendant sold during the term of the agreement.

The court referred the matter to a referee, who heard the case on April 25, 1997. At the hearing, the plaintiff testified and also called Alan M. Fischer as a witness. The defendant did not call any witnesses to testify on his behalf. On September 9,1997, the referee submitted his report, which included, inter alia, the following findings of fact and conclusions of law: “[The] plaintiff and defendant entered into several agreements in 1988 and 1989. . . .

“[The] plaintiffs (exhibit D), dated October 25,1989, is an exclusive agency listing agreement between the defendant and [the plaintiff] (broker) from October 25, 1989 to October 24, 1992, signed by [the plaintiff] as authorized listing agent for Fischer Commercial as broker agency name. By assignment of contract dated April 24, 1997 . . . Fischer Commercial assigned to [the plaintiff] all its interest in the attached exclusive agency listing agreement dated October 25, 1989, between it and [the defendant], . . .

“Alan M. Fischer, a witness for the plaintiff, testified that he did not know or recall if any sales or commissions were paid to his firm between October 25, 1989, and October 24, 1992. He did not know if the plaintiff had any agreement with the defendant. He did not recall if he knew of the agreement, plaintiffs (exhibit D) .... He testified that he agreed to assign the contract in 1995 (exhibit J) for purposes of suit. ... No consideration was paid for this assignment. Apparently, plaintiff made no claim for commissions due from the defendant prior to the filing of this action. . . .

“Exhibit D is the final exclusive agency listing agreement for a period from October 25,1989, to October 24, 1992, wherein [the plaintiff] is listed as ‘broker’ and also listed as ‘designated Realtor or authorized representative.’ . . . The plaintiff introduced no testimony that he was a licensed real estate broker or real estate salesman. Exhibits prior to exhibit D refer to the plaintiff as a ‘real estate agent.’ General Statutes § 20-311 (1) and (2). General Statutes § 20-325a (b) requires that any contract or authorization be signed ‘by the real estate broker or his authorized agent.’ ”

On the basis of those findings, the referee recommended judgment for the defendant. On December 3, 1997, the plaintiff filed a motion to correct the referee’s report, which the referee denied. Thereafter, the plaintiff filed exceptions and objections to the referee’s report pursuant to Practice Book §§ 439 and 440, now § 19-14, and the defendant filed a motion for judgment on the referee’s report. On March 30, 1998, the court overruled the plaintiffs exceptions and objections and granted the defendant’s motion; however, on September 14, 1998, it vacated its ruling.

On May 14, 2001, the court heard argument on the plaintiffs exceptions and objections to the referee’s report. As to the plaintiffs exceptions, the court found, inter alia, that although the referee improperly failed to find that (1) “the evidence [established] that Fischer Commercial was a licensed real estate broker in 1989,” (2) “[t]he plaintiff presented evidence that during the relevant time period, he was a licensed salesperson and that he was authorized to enter into listing agreements on behalf of Fischer Commercial” and (3) “the evidence [supported] the plaintiffs contention that he testified that he was a real estate sales agent,” the absence of those facts did not materially affect the referee’s recommendation. The court, therefore, overruled the plaintiffs exceptions.

As to the plaintiffs primary objection to the referee’s report, namely, that the referee’s conclusion with regard to the validity of the exclusive listing agreement was not properly reached in light of the subordinate facts, the court stated: “The plaintiff testified that he completed the exclusive listing agreement. In doing so in paragraph one, the plaintiff stated that he was the broker. In the signature portion of the document, the plaintiff listed Fischer Commercial as the broker, and he signed the document as Fischer’s authorized listing agent and as the designated Realtor or authorized Realtor. The plaintiff did testify about the role he played in the listing agreement and explained that he was acting on behalf of Fischer and did not fill in the document correctly when he named himself as the broker. . . . The attorney trial referee expressed his view on this issue at trial and stated: ‘Well, this is the exclusive right, a listing agreement from [the defendant] to [the plaintiff], broker, your right to sell. And you’ve signed this Fischer Commercial as broker. And you’re the authorized listing agent. But this is not an agreement between . . . [the defendant] and Fischer Commercial. It’s an agreement between [the defendant] and you. . . . As I read this document.’ . . . The court has found no material error in the referee’s report, nor has the court found any other ‘sufficient reasons why the report should not be accepted.’ ” (Citation omitted.)

The court, therefore, overruled the plaintiffs objections to the referee’s report and rendered judgment for the defendant, as recommended by the referee. This appeal followed. Additional facts will be set forth as necessary.

The plaintiff claims that the court improperly accepted the referee’s report because the referee incorrectly concluded that the listing agreement was unenforceable pursuant to § 20-325a (b). We agree.

We begin with the applicable standard of review. “[A] reviewing authority may not substitute its findings for those of the trier of the facts. This principle applies no matter whether the reviewing authority is the Supreme Court . . . the Appellate Court ... or the Superior Court reviewing the findings of . . . attorney trial referees. . . . [Our Supreme Court] has articulated that attorney trial referees and factfinders share the same function . . . whose determination of the facts is reviewable in accordance with well established procedures prior to the rendition of judgment by the court.

“The factual findings of a [trial referee] on any issue are reversible only if they are clearly erroneous. . . . [A reviewing court] cannot retry the facts or pass upon 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.) Shapero v. Mercede, 262 Conn. 1, 5-6, 808 A.2d 666 (2002).

Our Supreme Court, however, has specifically stated that “[w]hether a particular hsting agreement complies with § 20-325a (b) is a question of law.” New England Land Co., Ltd. v. DeMarkey, 213 Conn. 612, 623, 569 A.2d 1098 (1990). Our review of the plaintiffs claim, therefore, is plenary, and we must decide whether the court’s acceptance of the referee’s conclusion that the listing agreement was unenforceable pursuant to § 20-325a (b) is legally and logically correct and finds support in the facts that appear in the record. See Dow & Condon, Inc. v. Muros North Ltd. Partnership, 69 Conn. App. 220, 225, 794 A.2d 554 (2002).

With those principles in mind, we now address the plaintiffs claim. “The right of a real estate broker to recover a commission is dependent upon whether the fisting agreement meets the requirements of § 20-325a (b).” (Internal quotation marks omitted.) Rapin v. Nettleton, 50 Conn. App. 640, 647, 718 A.2d 509 (1998). Section 20-325a (b) requires that the fisting agreement: “(1) be in writing, (2) contain the names and addresses of all the parties thereto, (3) show the date on which such contract was entered into or such authorization given, (4) contain the conditions of such contract or authorization and (5) be signed by the owner . . . and by the real estate broker or his authorized agent.'''’ (Emphasis added.) “It is well established that the requirements of § 20-325a (b) are mandatory rather than permissive and that the statute is to be strictly construed.” McCutcheon & Burr, Inc. v. Berman, 218 Conn. 512, 520, 590 A.2d 438 (1991). “A broker who does not follow the mandate of [§ 20-325a (b)] does so at his peril.” (Internal quotation marks omitted.) Real Estate Auctions, Inc. v. Senie, 28 Conn. App. 563, 568, 611 A.2d 452 (1992).

In the present case, the parties executed the exclusive listing agreement at issue on a printed form that contains the basic terms and conditions to which they agreed. In the body of the agreement, blank spaces were provided for specifications such as the owner’s name, the broker’s name, the description of the subject property, the period of time for which the agreement would be effective and the commission rate. In the signature block, blank spaces were provided for the owner’s signature and address, the broker’s name and address, the authorized listing agent and the designated Realtor or authorized representative.

It is undisputed that the printed form was filled out properly in every respect, except that the plaintiff entered his name in the blank space provided for the broker’s name in the body of the agreement while in the signature block he listed Fischer Commercial as the broker, and signed the document as the authorized listing agent and as the designated Realtor or authorized representative. In his report, the referee interpreted the document as an exclusive listing agreement between the defendant owner and the plaintiff as the broker, signed by the plaintiff as the authorized listing agent for Fischer Commercial. On the basis of that interpretation and the undisputed fact that the plaintiff was not a licensed real estate broker, the referee concluded that the listing agreement was unenforceable because it was not signed by “the real estate broker or his authorized agent,” as required by § 20-325a (b) (5).

After a careful review of the record, we are left with the impression that, contrary to the conclusion of the referee, the exclusive listing agreement complied with § 20-325a (b) (5). The record reveals that the plaintiff signed the exclusive listing agreement not as a broker, as determined by the referee, but as Fischer Commercial’s authorized agent. The plaintiffs uncontradicted testimony was that he executed the listing agreement on Fischer Commercial’s behalf and that he mistakenly entered his own name in the blank space provided for the broker’s name in the body of the agreement. Moreover, the plaintiff presented evidence that during the relevant time period, he was a licensed salesperson working for Fischer Commercial and that he was authorized to enter into listing agreements on behalf of Fischer Commercial, which was a licensed real estate broker. Significantly, Fischer, the president of Fischer Commercial, testified with respect to the plaintiffs authority to enter into the subject agreement as follows: “Any agent that operates as a salesperson under the auspices of my brokerage license has the authority to enter into a listing agreement for the purposes of selling that real estate. This [agreement] is an example of that. [The plaintiff] had the authority to sign on behalf of the company under the auspices of my brokerage license.”

Although the plaintiff did enter his name in the blank space provided for the broker’s name in the body of the listing agreement, in the signature block, he correctly listed Fischer Commercial as the broker, and signed the document as the authorized listing agent and as the authorized representative of Fischer Commercial. Section 157 of the Restatement (Second) of Agency provides in relevant part that a “written instrument, in one portion of which there is a manifestation that the agent is acting only for the principal, is interpreted as the instrument of the principal and not of the agent, although in other portions of the instrument . . . the agent’s name appears without designation.” Restatement (Second), Agency § 157, p. 373 (1958). “If [the agent] has made . . . the fact that [he is acting in a representative capacity] in any portion of the instrument, the fact that it is not equally clear in other parts is immaterial, and it is not necessary that he should constantly appear throughout the instrument to act only as a representative. . . .” Id., § 157, comment (a), p. 373.

We conclude that the record conclusively demonstrates that the plaintiff signed the exclusive listing agreement in a representative capacity on behalf of Fischer Commercial and that the agreement complied with § 20-325a (b) (5). The court, therefore, improperly accepted the referee’s report because the referee incorrectly concluded that the listing agreement was unenforceable pursuant to § 20-325a (b) (5).

The judgment is reversed and the case is remanded for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1989) § 20-325a provides in relevant part: “(a) No person who is not licensed under the provisions of this chapter, and who was not so licensed at the time he performed Hie acts or rendered the services for which recovery is sought, shall commence or bring any action in any court of this state ... to recover any commission, compensation or other payment in respect of any act done or service rendered by him, the doing or rendering of which is prohibited under the provisions of this chapter except by persons duly licensed under this chapter.
      “(b) No person, licensed under the provisions of this chapter, shall commence or bring any action ... as set forth in subsection (a), unless such acts or services were rendered pursuant to a contract or authorization from the person for whom such acts were done or services rendered. To satisfy the requirements of this subsection any such contract or authorization shall (1) be in writing, (2) contain the names and addresses of all the parties thereto, (3) show the date on which such contract was entered into or such authorization given, (4) contain the conditions of such contract or authorization and (5) be signed by the owner or an agent authorized to act on behalf of the owner only by a written document executed in the manner provided for conveyances in section 47-5, and by the real estate broker or his authorized agent. . . .” Section 20-325a was not amended during the period of the agreement at issue in this case.

       On April 25, 1997, the referee granted the plaintiffs motion to amend his amended complaint to change the name Fischer Commercial Industrial Real Estate, Inc., to the Alan Fischer Companies, Inc., doing business as Fischer Commercial.

       In his report, the referee also found, in relevant part, the following facts: “[The] plaintiffs (exhibit A), dated April, 1988, purports to be an employment agreement in which the plaintiff is described as a duly licensed real estate agent and sets forth the basis of compensation for the plaintiffs services and advice. [The] plaintiffs (exhibit B), dated February 2, 1988, is an exclusive right to sell listing contract between the defendant and Remax Real Estate Marketing Co., effective from February 2, 1988, to February 2, 1989, signed by [the plaintiff] as authorized representative. There is no claim for lots sold under this listing. . . .
      “[The] plaintiffs (exhibit C), dated October 5, 1988, is an exclusive right to sell listing contract between the defendant and Fischer Commercial, effective from October 5, 1988, to October 4, 1989, signed by [the plaintiff] as authorized representative.”

       We note that, “[i]n 1994, the legislature relaxed the standard of strict compliance with [General Statutes] § 20-325a with respect to several of its provisions. While a written agreement is still strictly required, number 94-240 of the 1994 Public Acts amended § 20-325a such that a real estate broker may recover a sales commission if the broker ‘has substantially complied with subdivisions (2) to (6), inclusive, of [§ 20-325a (b)] and it would be inequitable to deny recovery.’ [General Statutes § 20-325a (c)].” Dow & Condon, Inc. v. Muros North Ltd. Partnership, supra, 69 Conn. App. 226. “Because the events that form the basis of this action occurred prior to the amendment’s effective date of July 1, 1994 ... we must apply the statute in effect during that time.” M.R. Wachob Co. v. MBM Partnership, 232 Conn. 645, 647 n.1, 656 A.2d 1036 (1995).

       We note that the referee’s finding that Fischer “did not recall if he knew of the agreement, plaintiffs (exhibit D)” is clearly erroneous. Fischer clearly testified that he knew of the subject listing agreement from the time it was executed. For instance, on cross-examination by the defendant’s attorney the following colloquy occurred:
      “[Defendant’s Counsel]: Were you aware that this plaintiffs exhibit D was in existence from its very beginning, that is, on or about October 25 of 1989?
      “[The Witness]: Was I aware that it existed?
      “[Defendant’s Counsel]: Yes, sir.
      “[The Witness]: Yes.”
      Although Fischer did testify that he did not recall whether he was “made privy to the terms” of “a side contractual agreement” between the plaintiff and the defendant, that testimony was not in reference to the plaintiffs exhibit D.

       We note that “[n]o part of a document is necessarily more important than any other part for the purpose of determining the parties thereto” and, therefore, “the entire document, including the heading, body, and signature, is considered . ...” 1 Restatement (Second), supra, § 155, comment (a), p. 371.

       The defendant claims that even if the exclusive listing agreement complies with General Statutes § 20-325a (b) (5), the court’s decision, nevertheless, is correct and should be affirmed because the plaintiff “did not render any brokerage services pursuant to the contract, as required by [§ 20-325a],” and Fischer Commercial’s assignment to the plaintiff of all its interest with respect to the exclusive listing agreement did not entitle the plaintiff to enforce the agreement. Because the court accepted the referee’s conclusion that the listing agreement was unenforceable pursuant to § 20-325a (b) (5), it never reached the issues of whether the agreement was otherwise unenforceable or whether the plaintiff, as the assignee, was entitled to enforce the agreement. We therefore remand the case to the trial court for a determination of the remaining issues in the case.


author: DUPONT, J.

text:
    JOHN P. RICCIO v. LINDA A. RICCIO
    (AC 21878)
    Lavery, C. J., and Foti and Dupont, Js.

      Argued January 13
    officially released March 18, 2003

      John M. Wyzik, for the appellant (defendant).

      Michael H. Clinton, for the appellee (plaintiff).
   Opinion

DUPONT, J.

In this summary process action, seeking eviction, the defendant, Linda A. Riccio, appeals from the judgment of the trial court rendered in favor of the plaintiff, John P. Riccio. The defendant’s answer to the action contained four special defenses and a counterclaim. All but one of the claims initially raised on appeal have been dismissed by this court as moot because the defendant vacated the premises while the appeal was pending. The sole remaining claim, which arises out of the defendant’s counterclaim, is whether the court improperly concluded that there was not a fiduciary relationship between the parties sufficient to establish a constructive trust of the plaintiffs real estate in favor of the defendant. We affirm the judgment of the trial court.

The court found the following facts. The plaintiff and the defendant were divorced in the early 1990s. In June, 1998, the plaintiff ex-husband had physical custody of, and was caring for, the parties’ child, who suffers from severe autism and requires constant care and supervision. At that time, the plaintiff changed jobs and was required to work nights. The plaintiff, therefore, asked the defendant, his former spouse, to move in with him and to help with the care of their child. Four weeks later, the defendant moved into the plaintiffs rented apartment with him and their daughter.

In June, 1999, the plaintiff purchased the subject premises at 815 Burbank Street in Suffield. Thereafter, the plaintiff continued to pay all the expenses associated with the house. In July, 1999, the plaintiff believed that the arrangement no longer was working and asked the defendant to leave. She refused. Subsequently, in January, 2000, after other attempts to get the defendant to leave failed, the plaintiff served the defendant with a notice to quit and subsequently with an action for summary process in which he sought possession of the premises. The defendant answered and filed a counterclaim, alleging, inter alia, that the parties’ relationship established a constructive trust and that she was entitled to possession of the property.

The defendant’s only claim on appeal is that the court improperly concluded that there was no confidential relationship between the parties that justified the imposition of a constructive trust. We disagree.

Before reviewing the defendant’s claim, we set forth the appropriate standard of review. A court’s determination of whether to impose a constructive trust “must stand unless it is clearly erroneous or involves an abuse of discretion. . . . This limited scope of review is consistent with the general proposition that equitable determinations that depend on the balancing of many factors are committed to the sound discretion of the trial court.” (Citation omitted; internal quotation marks omitted.) Wendell Corp. Trustee v. Thurston, 239 Conn. 109, 114, 680 A.2d 1314 (1996).

“[A] constructive trust arises . . . against one who, by . . . abuse of confidence . . . either has obtained or holds the legal right to property which he ought not, in equity and good conscience, hold and enjoy.” (Internal quotation marks omitted.) Id., 113. “Courts may use the equitable device of a constructive trust to remedy the unjust enrichment which results from not disposing of property as promised after the promise induced someone with whom the promisor shared a confidential relationship to transfer the property to the promisor. Starzec v. Kida, 183 Conn. 41, 49, 438 A.2d 1157 (1981).” (Internal quotation marks omitted.) Giulietti v. Giulietti, 65 Conn. App. 813, 860, 784 A.2d 905, cert. denied, 258 Conn. 946, 947, 788 A.2d 95, 96, 97 (2001).

The defendant claims that the facts presented at trial demonstrated that a confidential relationship existed between her and the plaintiff and, thus, the burden of opposing the resulting constructive trust shifted to the plaintiff. She cites Starzec v. Kida, supra, 183 Conn. 44 n.1, for the proposition that in Connecticut, there are two types of confidential relationships in the context of constructive trusts: (1) where one party is under the domination of another and (2) where circumstances justify a party’s belief that his or her welfare or instructions will guide the other’s actions. Id. The defendant argues that the court improperly failed to consider the second basis for finding a confidential relationship. The plaintiff contends that the court correctly determined that there was no confidential relationship between the parties.

The court rendered judgment in the plaintiffs favor on the defendant’s counterclaim because it found that the defendant did not establish the existence of a confidential relationship between the parties. The court’s conclusion was in accord with applicable law. In its memorandum of decision, the court specifically stated that “there is no evidence that [the defendant] was under the domination of the plaintiff.” The court also stated in an articulation of its decision that it was “unreasonable [for the defendant] to expect that she could stay indefinitely and/or be given title to the property.” The facts amply support those conclusions.

The parties were former spouses. The defendant was invited into the house to help care for their child, not on account of a present relationship between the parties. Neither party had an interest in resuming a marital relationship. The defendant did not contribute to the purchase of the property, nor to the payment of the mortgage on the property, nor to any other expense associated with the property. The plaintiff never promised the property to the defendant. The court’s factual findings were not clearly erroneous, and the court did not abuse its discretion in concluding that the defendant had failed to prove the existence of a confidential relationship between the parties. The court, therefore, properly determined that there was no basis on which to establish a constructive trust.

The judgment is affirmed.

In this opinion the other judges concurred.

      The plaintiff also argues that the defendant’s counterclaim is moot because if we were to remand the case, the court would lack jurisdiction because the summary process action became moot when the defendant vacated the premises. In light of our Supreme Court’s holding in Fellows v. Martin, 217 Conn. 57, 62, 584 A.2d 458 (1991), that “equitable defenses and counterclaims implicating the right to possession are available in a summary process proceeding,” we conclude that the defendant’s counterclaim properly is before us. See also Filosi v. Hawkins, 1 Conn. App. 634, 638-40, 474 A.2d 1261 (1984) (court considered constructive trust counterclaim in summary process action).


author: PETERS, J.

text:
    JOSEPH TARNOWSKY v. PETER SOCCI ET AL.
    (AC 22905)
    Foti, Schaller and Peters, Js.

      Argued November 21, 2002
    officially released March 18, 2003

      Brenden P. Leydon, for the appellant (plaintiff).

      James V. Somers, with whom was N. Kane Bennett, for the appellees (defendants).
   Opinion

PETERS, J.

General Statutes § 52-584 is the statute of limitations that governs negligence actions arising out of injury to person or property. It bars tort actions once two years have elapsed between the time when “the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered . ...” To apply the statute in any particular case, we must determine the time when an injured person has suffered an actionable harm. Rivera v. Double A Transportation, Inc., 248 Conn. 21, 26-27, 727 A.2d 204 (1999). In this case, we must determine when the statute begins for an injured claimant who immediately knows the fact of his injury, but only later discovers the identity of the tortfeasor who caused his injury. This determination raises a question of first impression. The trial court concluded that the claimant suffered actionable harm on the date of his actual injury and, accordingly, held that his claim for relief was barred by the statute of limitations. We disagree and reverse the judgment of the trial court.

The plaintiff, Joseph Tamowsky, filed a complaint alleging that, on March 14, 1997, he slipped and fell on an accumulation of snow and ice while walking on property owned by People’s Bank in the Noroton Heights section of Darien. The plaintiff alleged that, as a result, he had suffered a variety of physical and psychological injuries as well as a loss of earning capacity.

The plaintiff originally sued the property owner, People’s Bank, and the tenant, Jana, LLC, within two years of the date of his injury. Those lawsuits are not before us in this appeal. Thereafter, the plaintiff learned, through discovery, that the defendant Peter Socci had been hired to remove snow and ice from the premises where the plaintiff allegedly suffered his injury. On March 10, 2000, almost three years after the date of the plaintiffs injury, he commenced the present action against the defendant.

The plaintiffs amended complaint, insofar as it was addressed to the defendant, contained two counts. The significant count for this appeal is the plaintiffs allegation that the defendant negligently had failed to keep the area where the plaintiff fell free of snow and ice. The defendant moved for summary judgment on the ground that the plaintiffs action was time barred by § 52-584 because it had not been brought within two years of the plaintiffs slip and fall.

The trial court, Hon. William B. Lewis, judge trial referee, granted the defendant’s motion. The court concluded that the plaintiff had suffered actionable harm on the date of his fall, despite not knowing, or having reason to know, the identity of the defendant.

The plaintiff appeals from the trial court’s judgment as to count one of his amended complaint. “The standard of review of a trial court’s decision granting summary judgment is well established. Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law. . . . Our review of the trial court’s decision to grant the defendant’s motion for summary judgment is plenary. . . . On appeal, we must determine whether the legal conclusions reached by the trial court are legally and logically correct and whether they find support in the facts set out in the memorandum of decision of the trial court.” (Citation omitted; internal quotation marks omitted.) Gold v. Greenwich Hospital Assn., 262 Conn. 248, 253, 811 A.2d 1266 (2002). “Summary judgment may be granted where the claim is barred by the statute of limitations.” Doty v. Mucci, 238 Conn. 800, 806, 679 A.2d 945 (1996).

The plaintiff claims that his action was not barred by § 52-584 because the time to bring his tort action did not begin to run, as a matter of law, until he discovered, or should have discovered, that he had suffered actionable harm. Actionable harm, the plaintiff maintains, requires notice of the identity of the specific tortfeasor.

Significantly, at this juncture, the defendant has not argued that the plaintiff was on notice of the defendant’s identity at any time earlier than that alleged in the plaintiffs complaint. There is, therefore, no dispute as to that question.

The merits of the plaintiffs claim are not resolved by § 52-584. The statute provides in relevant part that no action for personal injury “shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered . . . .” (Emphasis added.) The statute does not purport to define the term “injury.” It is nonetheless noteworthy that the statute recognizes the significance of discovery of an injury as well as the occurrence of an injury.

Our Supreme Court has defined “injury” in § 52-584 to be an event that occurs when the plaintiff suffers actionable harm. Rivera v. Double A Transportation, Inc., supra, 248 Conn. 26-27. In determining when a plaintiff has suffered actionable harm, a court must focus “on the plaintiffs knowledge of facts, rather than on discovery of applicable legal theories.” (Internal quotation marks omitted.) Lambert v. Stovell, 205 Conn. 1, 6, 529 A.2d 710 (1987). “A breach of duty by the defendant and a causal connection between the defendant’s breach of duty and the resulting harm to the plaintiff are essential elements of a cause of action in negligence.

. . . They are therefore necessary ingredients for actionable harm.” (Citations omitted; internal quotation marks omitted.) Catz v. Rubenstein, 201 Conn. 39, 44, 513 A.2d 98 (1986).

We know of no Connecticut case, and the parties have cited none, that applies these standards to a case of late discovery of the identity of a tortfeasor. Our trial courts are divided. Indeed, in this very case, the trial courts, Hon. William B. Lewis and Hon. Frank H. D’Andrea, judge trial referees, were divided. Se footnote 2.

The parties’ appellate arguments center on whether Catz provides useful guidance for resolution of the identity problem in this case. Concededly, Catz is distinguishable on its facts. Its reasoning, nonetheless, may be illuminating.

Catz involved a medical malpractice action in which the plaintiff immediately knew of her injury and the identity of her physician. The plaintiff, however, learned only later, more than two years after the date of her injury, that there was a causal connection between her injury and the wrongful conduct of her physician. Id., 40-42. The Supreme Court held that the plaintiff suffered actionable harm when she discovered this connection. Id., 44. In reaching its conclusion, the court emphasized the principle that causation is an essential element of a negligence action.

The defendant does not take issue with Catz or the interpretation of that case in Ives v. NMTC, Inc., 46 Conn. Sup. 235, 746 A.2d 236 (1999). He argues, nonetheless, that the Ives discussion of causation and actionable harm should govern this case. We disagree.

Ives concerned the applicability of the three year provision of the statute of limitations contained in General Statutes § 52-577a, a limitations provision of the Product Liability Act, General Statutes § 52-572m et seq. The issue in Ives was whether the running of that statute was tolled until the time when a claimant learned of his tortfeasor’s identity. Ives v. NMTC, Inc., supra, 46 Conn. Sup. 236. The issue arose because, as in this case, the injured claimant initiated suit against the defendant more than the prescribed number of years after the date of his injuries. Id., 238. His argument, as in this case, was that he had been unable to ascertain the identity of the tortfeasor within the statutorily prescribed time frame. The court concluded that the test articulated in Catz did not support the claimant’s argument because, in its view, discovery of a tortfeasor’s identity was not an essential element of actionable harm. Id., 246-47. Accordingly, the court rendered judgment for the alleged tortfeasor. Id.

We are not persuaded that we should follow Ives under the circumstances of this case. The Superior Court’s conclusion in Ives cannot be reconciled with our reasoning in Peerless Ins. Co. v. Tucciarone, 48 Conn. App. 160, 708 A.2d 611 (1998).

Peerless Ins. Co. arose in the context of a fire on commercial property. Id., 162. A group of tenants and their insurance carriers brought an action for negligence and nuisance against the owners of the property. Id. The owners thereafter filed an action against a third party that allegedly had engaged in conduct violating the Product Liability Act. Id. The third party moved for summary judgment on a number of grounds, including a claim that the owners’ action was barred by virtue of § 52-577a because the owners had raised their claims more than three years after the occurrence of the fire. Id., 163.

This court agreed with the judgment of the trial court in favor of the third parties. We did so because the record established that the owners, early on, had access to the report of a fire marshal identifying the cause of the fire and the identity of the manufacturer of the inflammatory material. Id., 167. We held, therefore, that the plaintiff, exercising due diligence, could have discovered the identity of the third party at an earlier time. Id. The owners’ action, therefore, was untimely because it was initiated more than three years after the report was issued. Id.

It is important to note the issues of law that we addressed and did not address in Peerless Ins. Co. We declined to decide whether the “actionable harm test” that governs under § 52-584 also applies to cases governed by § 52-577a. We implicitly decided, however, that actual or constructive knowledge of the identity of a tortfeasor is an essential element of a claimant’s action for damages for negligently inflicted injuries. Otherwise, there would have been no point to our emphasis on the significance of the report of the fire marshal.

There is no relevant distinction, except for a difference in the stated limitation periods, between the discovery language contained in §§ 52-577a and 52-284. We conclude therefore that, under both sections, a claimant is not time barred until he knows, or should have known, the identity of the negligent person who caused his injury to occur. Peerless Ins. Co. establishes the identity principle and Catz establishes the causation principle. The defendant has not shown that he was entitled to summary judgment on his statute of limitations claim.

It bears noting that our holding does not put the defendant in infinite jeopardy of stale claims. The plaintiffs complaint was filed within the alternate three year time requirement also contained in § 52-584. The “actionable harm test” applies only to “causes of action not barred by the repose portion of § 52-584 which bars suit brought more than three years from [the date of] the act or omission complained of.” (Internal quotation marks omitted.) Catz v. Rubenstein, supra, 201 Conn. 50. Because the plaintiff served the defendant within three years of the date when the injury occurred, his complaint complied with the three year requirement.

The result that we reach in this case is entirely consistent with the policy of allowing just claims to be vindicated in the courts of this state. It is not just to require a claimant to forfeit a cause of action because of his failure to bring a timely lawsuit against an as yet undetermined tortfeasor. Real life injury claims should not be governed by fictitious legal constructs. We are not prepared to require an injured claimant to abide by a timetable that imputes to him the knowledge of a relationship of which he did not know and had no reason to know. The plaintiff is entitled to his day in court for a factual determination of what he should have known and when he should have known it.

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

In this opinion the other judges concurred.

       General Statutes § 52-584 provides in relevant part: “No action to recover damages for injury to the person, or to real or personal property, caused by negligence . . . shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of . . . .”

       On August 23, 2000, the defendant filed an apportionment complaint against People’s Bank, Jana, LLC, and Leggat McCall Properties Management of Connecticut, Inc. (Leggat). The apportionment complaint is not before us in this appeal. We refer in this opinion to Peter Socci as the defendant.
      On November 3, 2000, the plaintiff amended his complaint to include two counts alleging tortious misconduct by Leggat. In response, Leggat filed a motion for summary judgment on the ground that the plaintiffs action was barred by General Statutes § 52-584. Although the trial court, Hon. Frank H. D 'Andrea, judge trial referee, initially granted Leggat’s motion, it denied the motion after reargument because “[tjhere existed a genuine issue of fact as to when the plaintiff discovered, or should reasonably have discovered the existence of the defendant, Peter Socci, as a viable defendant against whom a suit for actionable harm could be brought.” The court’s denial of summary judgment is presumably the reason why this appeal does not challenge the judgment rendered by Judge D’Andrea.

       The plaintiff does not contest the court’s judgment with respect to count two of the amended complaint. In that count, the plaintiff had alleged that he was a third party beneficiary of a service contract between the defendant and People’s Bank.

       Many jurisdictions have held that a cause of action does not accrue until the plaintiff discovered or should have discovered the identity of the specific tortfeasor. See, e.g., Lawhon v. L.B.J. Institutional Supply, Inc., 159 Ariz. 179, 183, 765 P.2d 1003 (App. 1988) (tort actions); Pennwalt Corp. v. Nasios,
        314 Md. 433, 453, 550 A.2d 1155 (1988) (product liability); Siragusa v. Brown, 114 Nev. 1384, 1393-94, 971 P.2d 801 (1998) (tort actions); Raymond v. Eli Lilly & Co., 117 N.H. 164, 170-71, 371 A.2d 170 (1977) (product liability); O’Keeffe v. Snyder, 83 N.J. 478, 493, 416 A.2d 862 (1980) (replevin action); Norgard v. Brush Wellman, Inc., 95 Ohio St. 3d 165, 168-69, 766 N.E.2d 977 (2002) (employer intentional tort and other claims); Gaston v. Parsons, 318 Or. 247, 255-56, 864 P.2d 1319 (1994) (tort actions); Anthony v. Abbott Laboratories, 490 A.2d 43, 46 (R.1.1985) (product liability); Wyatt v. A-Best Co., 910 S.W.2d 851, 854-55 (Term. 1995) (tort actions); Aragon v. Clover Club Foods Co., 857 P.2d 250, 253 (Utah App. 1993) (product liability); Orear v. International Paint Co., 59 Wash. App. 249, 255-56, 796 P.2d 759 (product liability), review denied, 116 Wash. 2d 1024, 812 P.2d 103 (1990); Thompson v. Branches-Domestic Violence Shelter of Huntington, West Virginia, Inc., 207 W. Va. 479, 485-86, 534 S.E.2d 33 (tort actions), cert. denied, 531 U.S. 1055, 121 S. Ct. 663, 148 L. Ed. 2d 565 (2000); Sawyer v. Midelfort, 227 Wis. 2d 124, 155-56, 595 N.W.2d 423 (1999); Spitler v. Dean, 148 Wis. 2d 630, 631-32, 436 N.W.2d 308 (1989) (tort actions).
      Other jurisdictions have declined to extend the accrual of a cause of action to the date when the plaintiff discovered or should have discovered the identity of the defendant. See, e.g., Norgart v. Upjohn Co., 21 Cal. 4th 383, 399, 981 P.2d 79, 87 Cal. Rptr. 2d 453 (1999); Russell v. Attco, Inc., 82 Haw. 461, 463-65, 923 P.2d 403 (1996); Wells v. Travis, 284 Ill. App. 3d 282, 286, 672 N.E.2d 789 (1996); Krasnow v. Allen, 29 Mass. App. 562, 569-70, 562 N.E.2d 1375 (1990), cert. denied, 409 Mass. 1102, 566 N.E.2d 1131 (1991); Smith v. Sinai Hospital of Detroit, 152 Mich. App. 716, 726, 394 N.W.2d 82 (1986); Staiano v. Johns Manville Corp., 304 Pa. Super. 280, 287-88, 450 A.2d 681 (1982) (product liability); Mellon Service Co. v. Touche Ross & Co., 17 S.W.3d 432 (Tex. Civ. App. 2000); Nowotny v. L & B Contract Industries, Inc., 933 P.2d 452, 457-58 (Wyo. 1997).

       The parties acknowledge an existing split of authority among Superior Court decisions regarding the “actionable harm test” and whether it includes the identity of the tortfeasor. In Barron v. Benton Auto Body, Inc., Superior Court, judicial district of Hartford, Docket No. 573293 (December 21, 2000) (Rubinow, J.), the court held that General Statutes § 52-584 is tolled until the plaintiff discovers the tortfeasor’s identity. Id. The court did not, however, provide an explanation of actionable harm.

       General Statutes § 52-577a (a) provides in relevant part: “No product liability claim as defined in section 52-572m shall be brought but within three years from the date when the injury, death or property damage is first sustained or discovered or in the exercise of reasonable care should have been discovered . . . .”

       The tenants’ claims against the owners were consolidated for trial.

       See footnote 1.


text:
    TORRINGFORD FARMS ASSOCIATION, INC., ET AL. v. CITY OF TORRINGTON
    (AC 22254)
    Lavery, C. J., West and Peters, Js.
    Argued December 9, 2002
    officially released March 18, 2003

      Charles F. Brower, for the appellants (plaintiffs).

      Ralph W. Johnson III, with whom, on the brief, were John B. Farley, Brian P. Learning and Salvatore N. Fomaciari, for the appellee (defendant).
   Opinion

PETERS, J.

Pursuant to General Statutes § 52-576 (a), the statute of limitations for contract actions, a plaintiff must initiate an action for breach of contract within six years of the date of the alleged breach. Tolbert v. Connecticut General Life Ins. Co., 257 Conn. 118, 124-25, 778 A.2d 1 (2001). The issue in this appeal is whether § 52-576 (a) applies to an action for breach of contract that is based on a claim of promissory estoppel. The trial court held the statute to be applicable in light of analogous statutes of limitation that govern equitable claims. In our view, § 52-576 (a) applies directly to a claim of promissory estoppel because such a claim is a claim for breach of contract. We agree with the court’s judgment in favor of the defendant.

On November 17, 1999, the plaintiffs, Torringford Farms Association, Inc. (Torringford I), and Torringford Farms II Association, Inc. (Torringford II), filed a complaint against the defendant city of Torrington. The plaintiffs are associations of owners of units in common interest communities in Torrington. They alleged that the defendant had issued and recorded documents containing a requirement that the developer provide a “road bond” for their benefit. They claimed that these actions constituted a representation to all purchasers, presently and in the future, that roads within the development would be protected by such a bond. Accordingly, they claimed that the defendant was liable to the plaintiffs for its failure to assure that the developer posted such a bond. The basis for their action was a claim of promissory estoppel.

The defendant filed a motion to strike, which the court, Frazzini, J., denied. Thereafter, the defendant filed responsive pleadings, including five special defenses alleging, inter alia, that the plaintiffs’ action was barred by the applicable statute of limitations. The defendant then filed a motion for summary judgment on that ground and others.

On August 15, 2001, the court, Matasavage, J., granted the defendant’s motion for summary judgment because the plaintiffs’ action was untimely. The plaintiffs have appealed from that judgment.

The plaintiffs’ appeal is governed by a well established standard of review. “Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law. . . . Our review of the trial court’s decision to grant the defendant’s motion for summary judgment is plenary. . . . On appeal, we must determine whether the legal conclusions reached by the trial court are legally and logically correct and whether they find support in the facts set out in the memorandum of decision of the trial court.” (Citation omitted; internal quotation marks omitted.) Gold v. Greenwich Hospital Assn., 262 Conn. 248, 253, 811 A.2d 1266 (2002). “Summary judgment may be granted where the claim is barred by the statute of limitations.” Doty v. Mucci, 238 Conn. 800, 806, 679 A.2d 945 (1996).

The relevant facts are undisputed. The plaintiffs are associations of owners of units in common interest communities in Torrington. They own the roads within these communities.

The Torrington planning and zoning commission (commission) approved the plaintiffs’ subdivision applications for Torringford I on January 25, 1989, and for Torringford II on February 14, 1990. The commission conditioned its approval of both applications on the posting of a “road bond” by the developer within forty-five days of each decision. The plaintiffs were notified of the commission’s decisions by letter on January 26, 1989, and February 22,1990, respectively. The approvals were included with the declarations and public offering statements recorded on the land records.

The developer did not post any bond with respect to the private roads running through the communities. It did, however, post a letter of credit to ensure the completion of the sanitary and sewer systems serving the developments. The plaintiffs apparently were under the misimpression that the “road bond” condition referred to their roads rather than to the required sanitary systems. After the recordation of the declaration and public offering statement, the developer completed his work and sold the properties to the intended purchasers. The roads have deteriorated.

The defendant learned that the developer had not posted a bond for the private roads on April 8, 1992. The plaintiffs learned of this fact no later than September, 1992. Their knowledge is reflected in minutes of meetings held by Torringford I and II on August 19, 1993, and September 20, 1992, respectively.

On appeal, the plaintiffs argue that the court improperly applied § 52-576 (a) to their action against the defendant. Specifically, the plaintiffs assert that because their action is one of equity, the court should not have applied any statute of limitations. In the alternative, the plaintiffs argue that, even if § 52-576 (a) were to apply, their cause of action did not accrue until the completion of their subdivisions.

This appeal requires us to determine whether a claim of promissory estoppel is, as the plaintiffs allege, an equitable action or, as the defendant maintains, an action at law. This is not a question of first impression. Our Supreme Court has already addressed it in D’Ulisse-Cupo v. Board of Directors of Notre Dame High School, 202 Conn. 206, 520 A.2d 217 (1987).

In D’Ulisse-Cupo, the Supreme Court explained that “[ujnder the law of contract, a promise is generally not enforceable unless it is supported by consideration. . . . This court has recognized, however, the development of liability in contract for action induced by reliance upon a promise, despite the absence of common-law consideration normally required to bind a promisor .... Section 90 of the Restatement Second [Contracts (1981)] states that under the doctrine of promissory estoppel, [a] promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise. A fundamental element of promissory estoppel, therefore, is the existence of a clear and definite promise which a promisor could reasonably have expected to induce reliance. Thus, a promisor is not liable to a promisee who has relied on a promise if, judged by an objective standard, he had no reason to expect any reliance at all. ” (Citations omitted; emphasis added; internal quotation marks omitted.) Id., 213; see also Pavliscak v. Bridge port Hospital, 48 Conn. App. 580, 592-93 n.5, 711 A.2d 747, cert. denied, 245 Conn. 911, 718 A.2d 17 (1998).

D’Ulisse-Cupo controls the present case. The doctrine of promissory estoppel serves as an alternative basis to enforce a contract in the absence of competing common-law considerations. D’Ulisse-Cupo v. Board of Directors of Notre Dame High School, supra, 202 Conn. 213. For actions for breach of contract, it is the legislature that has determined the time period in which a cause of action must be brought. Only in actions that fairly can be characterized as invoking equitable considerations may a court consider the applicability of concepts of fairness and equity, usually by invoking the doctrine of laches. See Dunham v. Dunham, 204 Conn. 303, 326-27, 528 A.2d 1123 (1987), overruled in part on other grounds, Santopietro v. New Haven, 239 Conn. 207, 213 n.8, 682 A.2d 106 (1996); Giordano v. Giordano, 39 Conn. App. 183, 214-16, 664 A.2d 1136 (1995). The trial court, therefore, should have applied § 52-276 (a) directly, rather than by way of analogy to the rules governing equitable claims.

Pursuant to § 52-576 (a), “[n]o action ... on any simple or implied contract, or on any contract in writing, shall be brought but within six years after the right of action accrues . . . .” The law concerning the time when a breach of contract action accrues is well settled. “[I]n an action for breach of contract . . . the cause of action is complete at the time the breach of contract occurs, that is, when the injury has been inflicted. . . . Although the application of this rule may result in occasional hardship, [i]t is well established that ignorance of the fact that damage has been done does not prevent the running of the statute, except where there is something tantamount to a fraudulent concealment of a cause of action.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Tolbert v. Connecticut General Life Ins. Co., supra, 257 Conn. 124-25.

The trial court properly determined that the plaintiffs did not commence this action within the time period allotted by § 52-576 (a). As noted, the parties did not dispute the operative facts. The plaintiffs’ evidence established that, on April 8, 1992, the defendant knew that the developer had not posted a bond for the roads within the developments. The six year period commenced from that date because it was then that the defendant knew of the developer’s alleged omission. It follows that April 8,1992, is the date when the defendant allegedly failed to fulfill its promise to ensure that the roads would be protected by a bond in accordance with the approved subdivision applications. The plaintiffs’ lawsuit, filed on November 17, 1999, was, therefore, untimely because it was filed more than seven years after their cause of action had accrued.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 52-576 (a) provides: “No action for an account, or on any simple or implied contract, or on any contract in writing, shall be brought but within six years after the right of action accrues, except as provided in subsection (b) of this section.”

       Although we disagree with the trial court’s reasoning, we affirm the court’s judgment “because it reached the right result, even if it did so for the wrong reason.” Kalas v. Cook, 70 Conn. App. 477, 485, 800 A.2d 553 (2002); see also Flagg Energy Development Corp. v. General Motors Corp., 244 Conn. 126, 151, 709 A.2d 1075 (1998).

       In their initial complaint, the plaintiffs also claimed that the defendant was liable because it had made intentional misrepresentations. In an amended complaint, the plaintiffs dropped this claim.

       On March 15, 2000, the defendant filed a motion to strike the complaint for failure to join the developer as a necessary party and for failure to sufficiently allege a claim for fraud or intentional misrepresentation. The court denied the motion, concluding that the developer was not a necessary party and that the plaintiffs’ complaint sufficiently supported its substantive claims.

       The defendant’s additional grounds for summary judgment included: (1) the plaintiffs cannot establish a claim of promissory estoppel; (2) the defendant does not owe a duty to the plaintiffs for its alleged failure to ensure that the developer posted a road bond; and (3) the doctrine of governmental immunity protects the defendant from suit.

       Because the plaintiffs no longer claim that the defendant misrepresented the nature of the bond that it required the developer to post, the plaintiffs have not alleged that the defendant bore responsibility for their misimpression.

       The minutes of the meeting held by Torringford I on August 19, 1993, provide in relevant part: “Lucas Perea reported on the meeting he had with the Mayor of Torrington. . . . The city verified that there was no bond posted for the roads. The bond that was posted by the Developer was for the sewers. The community’s roads [cannot] be deeded over to the city for a variety of reasons.”
      Similarly, the minutes of the meeting conducted by Torringford II on September 20, 1992, state in relevant part: “As has been discussed in the past, the final paving of the road is of some concern since the Developer has not posted a bond for the final paving. The primary common property of [Torringford II] is the road and, since this has not received the final paving and is essentially falling apart in some areas, the Association may at some point have to repair or completely repave the road. The Association would then have to go after the Developer to recover the money.”

       Aside from demonstrating the existence of a “clear and definite promise,” a plaintiff asserting a claim of promissory estoppel must also establish two additional elements: “the party against whom estoppel is claimed must do or say something calculated or intended to induce another party to believe that certain facts exist and to act on that belief; and the other party must change its position in reliance on those facts, thereby incurring some injury. ... It is fundamental that a person who claims an estoppel must show that he has exercised due diligence to know the truth, and that he not only did not know the true state of things but also lacked any reasonably available means of acquiring knowledge. ... In addition, estoppel against a public agency is limited and may be invoked: (1) only with great caution; (2) only when the action in question has been induced by an agent having authority in such matters; and (3) only when special circumstances make it highly inequitable or oppressive not to estop the agency.” (Citations omitted; internal quotation marks omitted.) Chotkowski v. State, 240 Conn. 246, 268-69, 690 A.2d 368 (1997).
      We note that the plaintiffs’ action may not satisfy the fundamental element of promissory estoppel that the defendant has made a promise to the plaintiff. It is by no means clear that approval of a condition in a subdivision application is a promise to subsequent subdivision purchasers.

       The defendant also argues that the plaintiffs’ action is really one of fraud or misrepresentation and, accordingly, the three year statute of limitations for tort actions under General Statutes § 52-577 should apply. In light of our conclusion that the plaintiffs’ action sounds in contract, we conclude that § 52-577 does not apply to this case.

       The plaintiffs do not claim that their action for promissory estoppel can be characterized as a tort claim. A tort claim, unlike a contract claim, does not accrue until the plaintiff discovered or should have discovered that he has been iryured. Tarnowsky v. Socci, 75 Conn. App. 560, 816 A.2d 728 (2003).

       Although irrelevant as a matter of law, the plaintiffs knew of the alleged omission by September 20, 1992.