text:
    TORRIE A. GILLIARD v. VAN-COURT PROPERTY MANAGEMENT SERVICES, LTD.
    (AC 20187)
    Lavery, C. J., and Mihalakos and Flynn, Js.
    Argued February 14
    officially released June 5, 2001

      Charles D. Rockwell, for the appellant (defendant).

      Patricia M. Strong, for the appellee (plaintiff).
   Opinion

MIHALAKOS, J.

Following a jury trial, the defendant, Van-Court Property Management Services, Ltd., appeals from the judgment rendered in favor of the plaintiff, Torrie A. Gilliard, on claims of breach of a covenant of good faith and fair dealing in discharging the plaintiff and failing to produce the plaintiffs personnel files in violation of General Statutes § Sl-^g. The defendant claims that the trial court improperly (1) denied its motion to open the direct examination of a witness, (2) denied its motion for a remittitur of economic damages for back wages when the plaintiff had an unreasonable expectation of continued employment with the defendant and voluntarily removed herself from the workforce for a period of time to have a child and (3) accepted the jury’s verdict when the evidence did not support it. We disagree with the defendant and affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The defendant is a real property management company that was formed in 1989. Edward Duval is its president and sole shareholder. Diane Dodge is its vice president. In 1994, the time of the actions at issue in this case, the defendant employed thirty-two people and managed 2200 units. One of the defendant’s largest clients is the United States Department of Housing and Urban Development (HUD). On May 2, 1994, the defendant was appointed the exclusive independent fee agent for HUD properties in Connecticut and assumed management of the Town House Apartments (Town House) on Barbour Street in Hartford. The plaintiff, Torrie Gilli-ard, was a senior rental clerk at Town House and continued in that position under the defendant’s management.

In June, 1994, the defendant fired the manager at Town House, elevated the plaintiff to the position of acting manager and gave her a $3 per hour increase in pay. In October, 1994, Lori Carvalho was transferred to Town House to serve as manager. The plaintiff continued to perform her duties as acting manager. On November 10, 1994, Dodge issued both a written and a verbal warning to the plaintiff. On November 14,1994, the plaintiff worked for one hour before being fired by Carvalho. The plaintiff received no pink slip and no reason for her termination. A pink slip was later mailed to her, and the reason given for her termination was “insubordination.” At the time of her termination, the plaintiff was being paid $12 per hour and working forty hours a week. After her termination from Town House, the plaintiff collected unemployment benefits for six months. In 1996, HUD sold Town House to new owners, and the defendant ceased serving as property manager. In 1997, the plaintiff worked as a volunteer in a recreational center. In November, 1998, the plaintiff obtained full-time employment again.

The plaintiff claimed damages of $480 a week from the date of her termination to the date of the trial, for a total of $120,640, less unemployment benefits and other wages that she had earned in the interim. The plaintiffs total damages claimed were $118,000. At trial, the cross-examination and redirect of Dodge were completed in one day, after which the defendant’s counsel rested. The plaintiffs counsel then began rebuttal by calling the plaintiff to testify. On direct examination, the plaintiff testified to the time frame from November 10 to 14,1994. The defense did not question the plaintiff concerning that time frame on cross-examination. At the end of cross-examination, the court excused the jurors for the day and told them that the next day only one further witness would be called.

The next morning, defense counsel asked the court for permission (1) to put on surrebuttal evidence, including the admission of a calendar for the month of November, 1994, and (2) to open his case because of “newly discovered information.” The trial court ruled that the defense would be allowed surrebuttal following the plaintiffs rebuttal, but restricted to the scope of rebuttal. The court refused, however, to allow the defendant either to put the calendar into evidence or to open its case and recall Dodge to the stand. The court ruled that the defendant had had ample opportunity for redirect of Dodge on the previous day.

The jury found for the plaintiff and awarded her $118,000 in economic damages and $2500 in noneco-nomic damages.

I

The defendant first claims that the court improperly refused to allow it to open its case and to introduce into evidence a calendar of November, 1994, to correct the testimony of its own witness. We disagree.

The following additional facts are necessary to our determination of this claim. At trial, the plaintiff and the defendant differed as to the days of the week on which November 10, 11 and 14 fell in 1994. November 10, 1994, was the date on which the plaintiff was given a written warning by Dodge. November 14, 1994, was the date on which the plaintiff was terminated after having worked for only one horn. The plaintiff testified that she had received the written warning late in the day on November 10 and then had left for the weekend. Upon her return to work on November 14, she was fired after only one hour. On cross-examination, the plaintiffs counsel asked Dodge whether November 10, 1994, had fallen on a Thursday or a Friday. Dodge replied that she did not remember. The plaintiffs counsel then was able to elicit testimony from Dodge, using pay stubs to refresh her memory, that November 10 must have been a Friday, that the Veterans Day holiday was on Monday, November 13, 1994, and that the date of the plaintiffs termination, November 14, 1994, was on a Tuesday. On redirect, the defense posed a mere six questions to Dodge, none of which related to the period from November 10 to November 14, 1994.

“Our standard of review for evidentiary matters allows the trial court great leeway in deciding the admissibility of evidence. The trial court has wide discretion in its rulings on evidence and its rulings will be reversed only if the court has abused its discretion or an injustice appears to have been done. . . . The exercise of such discretion is not to be disturbed unless it has been abused or the error is clear and involves a misconception of the law.” (Internal quotation marks omitted.) Bunting v. Bunting, 60 Conn. App. 665, 670, 760 A.2d 989 (2000).

“Whether or not a trial court will permit further evidence to be offered after the close of testimony in the case is a matter resting within its decision. ... In the ordinary situation where a trial court feels that, by inadvertence or mistake, there has been a failure to introduce available evidence upon a material issue in the case of such a nature that in its absence there is serious danger of a miscarriage of justice, it may properly permit that evidence to be introduced at any time before the case has been decided.” (Citations omitted; internal quotation marks omitted.) Fahey v. Safeco Ins. Co. of America, 49 Conn. App. 306, 315, 714 A.2d 686 (1998).

Here, the jury reasonably could have found that the plaintiff was given the warning letter late in the day on November 10, 1994, then went home for a three day weekend and was terminated after working for one hour on November 14, 1994. In fact, the plaintiff and defendant agreed on those points at trial. The defendant sought to open its case and to enter the calendar into evidence to settle the dispute as to whether the Veterans Day holiday fell on Friday, November 11, 1994, or Monday, November 13, 1994. Regardless, there is no question that the plaintiff did not work on Veterans Day and that her first day back to work after receiving the warning letter was November 14, 1994. We fail to see how the day of the week in 1994 on which Veterans Day fell constitutes a material issue. The defendant was afforded ample opportunity on redirect examination of Dodge to correct her testimony if it so chose.

The trial court acted within its discretion when it denied the defendant’s motion to open its case and to enter the calendar into evidence. We find no evidence of any abuse of discretion on the part of the court. We further can find no evidence of a serious danger of miscarriage of justice due to the defense’s failure to correct Dodge’s testimony.

II

The defendant next claims that the court improperly denied its motion for a remittitur of economic damages for back wages because the plaintiff had an unreasonable expectation of continued employment with the defendant and voluntarily removed herself from the workforce for a period of time to have a child. We disagree.

The jury reasonably could have found the following facts regarding the plaintiffs damages. The plaintiff claimed damages of $12 an hour for forty hours a week, which amounted to $480 a week for fifty-two weeks a year over a period of four years and ten months (the time from her termination to the time of trial). Those damages totaled $120,640. After her termination from Town House, Duval promised her other employment positions, but never rehired her. The plaintiff applied for work at Chappelle Gardens, another housing complex, but was denied employment. During this period, the plaintiff worked full-time at a child care center for eleven months for a total income of $11,440. The plaintiff collected $1196 in unemployment compensation. The plaintiff earned $564.64 for child care that she had provided in her home and $600 for part-time work in a convenience store. Once those earnings were deducted from the claim of $120,640, the plaintiffs net claim was $118,000, including interest. Although the defendant cross-examined the plaintiff at trial, it failed to question her on the subject of economic damages.

No evidence was adduced at trial, by either party, concerning the plaintiffs excusing herself from the workforce to give birth. On appeal, the defendant again fails to make any specific allegations concerning a time period during which the plaintiff may have ceased job hunting efforts due to the birth of a child.

“Litigants have a constitutional right to have factual issues resolved by the juiy. . . . This right embraces the determination of damages when there is room for a reasonable difference of opinion among fair-minded persons as to the amount that should be awarded. . . . The amount of a damage award is a matter peculiarly within the province of the trier of fact, in this case, the jury. . . . The size of the verdict alone does not determine whether it is excessive. The only practical test to apply to [a] verdict is whether the award falls somewhere within the necessarily uncertain limits of just damages or whether the size of the verdict so shocks the sense of justice as to compel the conclusion that the jury was influenced by partiality, prejudice, mistake or corruption.” (Internal quotation marks omitted.) Ham v. Greene, 248 Conn. 508, 536, 729 A.2d 740, cert. denied, 528 U.S. 929, 120 S. Ct. 326, 145 L. Ed. 2d 254 (1999).

“[A] jury’s determination of damages should be set aside only when the verdict is clearly exorbitant and excessive ... or the size of the verdict is so shocking to a sense of justice that it leads us to the conclusion that the jury was influenced by prejudice, partiality, mistake or corruption.” (Citation omitted; internal quotation marks omitted.) Morales v. Pentec, Inc., 57 Conn. App. 419, 435, 749 A.2d 47 (2000).

“Evidence offered at trial relevant to damages must be reviewed in the light most favorable to sustaining the verdict. . . . Every reasonable presumption in favor of the correctness of the court’s refusal to set aside the verdict as excessive should be indulged . . . and its ruling will not be disturbed unless there is a clear abuse of discretion.” (Internal quotation marks omitted.) Barry v. Posi-Seal International, Inc., 40 Conn. App. 577, 582, 672 A.2d 514, cert. denied, 237 Conn. 917, 676 A.2d 1373 (1996).

“When damages are claimed they are an essential element of the plaintiffs proof and must be proved with reasonable certainty. . . . Damages are recoverable only to the extent that the evidence affords a sufficient basis for estimating their amount in money with reasonable certainty.” (Citations omitted; internal quotation marks omitted.) Gaudio v. Griffin Health Services Corp., 249 Conn. 523, 554, 733 A.2d 197 (1999).

“We have often said in the contracts and torts contexts that the party receiving a damage award has a duty to make reasonable efforts to mitigate damages. . . . What constitutes a reasonable effort under the circumstances of a particular case is a question of fact for the trier. . . . Furthermore, we have concluded that the breaching party bears the burden of proving that the nonbreaching party has failed to mitigate damages.” (Citations omitted; internal quotation marks omitted.) Anne Howard’s Apricots Restaurant, Inc. v. Commission on Human Rights & Opportunities, 237 Conn. 209, 229, 676 A.2d 844 (1996).

The jury was presented with ample evidence to support its finding of economic damages in the amount of $118,000 for the plaintiff. Once a jury has decided that the plaintiff was wrongfully discharged, it is free to determine damages in accordance with the court’s instructions. In this case, there was no counter evidence challenging the plaintiffs damages claim presented by the defense at trial. Further, the defense presented the court with no legal authority to substantiate its claim that the plaintiff may not recover for the entire period of her unemployment, simply because the defendant stopped managing Town House two years after the plaintiffs dismissal.

The defendant cites Barry v. Posi-Seal International, Inc., supra, 40 Conn. App. 577, to support the contention that a damage award should be supported by the evidence adduced at trial. We find that the damage award here is supported by the evidence adduced at trial. We find no evidence here of a damage award so overly large as to “shock the conscience.” The jury, in its discretion, awarded to the plaintiff damages for back wages that she had requested, deducting unemployment compensation and wages that she had earned during her period of unemployment. The $2500 beyond this amount that the jury awarded as noneconomic damages does not begin to approach a level that we would find shocking to our sense of justice. The court acted well within its discretion in denying the defendant’s motion for a remittitur, and we will not disturb a jury award based so clearly on the evidence.

Ill

The defendant’s final claim is that insufficient evidence was adduced at trial to support the verdict. We disagree.

“Evidence is sufficient to sustain a verdict where it induces in the mind of the [trier] that it is more probable than otherwise that the fact in issue is true. ... It is the province of the trier of fact to weigh the evidence presented and determine the credibility and effect to be given the evidence. . . . On appellate review, therefore, we will give the evidence the most favorable reasonable construction in support of the verdict to which it is entitled. ... In analyzing a sufficiency of the evidence claim, the test that we employ is whether, on the basis of the evidence before the jury, a reasonable and properly motivated jury could return the verdict that it did.” (Internal quotation marks omitted.) Id., 580.

“A court is empowered to set aside a jury verdict when, in the court’s opinion, the verdict is contrary to the law or unsupported by the evidence. ... A verdict should not be set aside, however, where it is apparent that there was some evidence on which the jury might reasonably have reached its conclusion.” (Citation omitted; internal quotation marks omitted.) PAR Painting, Inc. v. Greenhome & O’Mara, Inc., 61 Conn. App. 317, 322, 763 A.2d 1078, cert. denied, 255 Conn. 951, 770 A. 2d 31 (2001). It is apparent here that there was ample evidence on which the jury reasonably could have reached its conclusion.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 31-128g provides: “Each employer shall, within a reasonable time after receipt of a written request from an employee, provide such employee with a copy of all or part of his personnel file or provide such employee’s physician with a copy of such employee’s medical records, provided such request reasonably identifies the materials to be copied. Such employer may charge a fee for copying such file or records or any part of such file or records. Such fee shall be reasonably related to the cost of supplying the requested documents.”


source: Caselaw Access Project

author: LAVERY, C. J.

license: Public Domain

text:
    LOMBARDI REST HOME, INC., ET AL. v. GARY RICHTER ET AL.
    (AC 19650)
    Lavery, C. J., and Mihalakos and Flynn, Js.

      Argued February 14
    officially released June 5, 2001

      William S. Palmieri, with whom, on the brief, was John R. Williams, for the appellants (plaintiffs).

      Edward F. Osswalt, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Richard J. Lynch, assistant attorney general, for the appellees (defendants).
   Opinion

LAVERY, C. J.

The plaintiffs, Lombardi Rest Home, Inc., and Rose Lombardi, appeal from the summary judgment rendered in favor of the defendants, Gary Richter and Maria Ludena. On appeal, the plaintiffs claim that the trial court improperly granted summary judgment on the basis of their failure to allege an injury and, thus, to state a cause of action. We disagree and affirm the judgment of the trial court.

The record discloses the following facts. Lombardi Rest Home, Inc., is licensed by the department of public health as a home for the aged pursuant to General Statutes § 17a-227. Rose Lombardi, is the owner of Lombardi Rest Home, Inc. The defendants are employees of the department of social services (department). Richter is the director of the certificate of need and rate setting unit, and Ludena is a cost analyst in that unit. The plaintiffs brought this action against the defendants in their individual capacities.

In the complaint, the plaintiffs alleged that they had a property right to receive monthly payments from the department of income maintenance for the care of certain patients. The method statutorily prescribed for determining a reimbursement rate is cost based. Those amounts are determined by the provisions of General Statutes (Rev. to 1993) § 17-314 (a), now 17b-340 (a), and in the regulations of the department. See Regs., Conn. State Agencies § 17-311-50 et seq.

The plaintiffs also alleged that they were denied their rights of access to the courts and to petition the government for redress of grievances in violation of the first amendment to the United States constitution when Ludena informed them that they would be paid some of the money allegedly owed to them only if they waived in writing their appeal rights related to the methods applied in computing rates for the facility. The plaintiffs refused to waive those rights.

The defendants’ answer denied the material allegations of the complaint and raised several affirmative defenses, including that they were entitled to qualified immunity and therefore were immune from liability for civil damages. On April 16, 1999, the defendants filed a motion for summary judgment, claiming that there was no genuine issue of fact that the plaintiffs had failed to state a cause of action for denial of their right of access to the courts under the first amendment and that, in addition, the defendants were entitled to qualified immunity. The court granted the motion for summary judgment and, in response to the plaintiffs’ motion for articulation, issued a memorandum of decision on June 28, 1999. In its memorandum, the court held that the plaintiffs had failed to state a claim for violations of their first amendment rights. The court did not reach the defendants’ claim of qualified immunity. On appeal, the defendants reassert that claim.

Pursuant to § 17-314 (a), now 17b-340 (a), the department is required to establish per diem rates at which long-term care facilities are reimbursed for reasonable costs in providing room and board to their residents who qualify for assistance under a state supplementation program. Facilities must annually submit audited consolidated operating reports. Regs., Conn. State Agencies § 17-311-50. Those cost reports are received by department personnel who apply the provisions of the statutes and regulations to determine each facility’s rate of reimbursement for qualified clients. See General Statutes (Rev. to 1993) § 17-314 (a), now 17b-340 (a). The rates are determined prospectively and are based on the allowable costs as contained in the facility’s cost report.

The reimbursement system under § 17-311-55 of the regulations makes provisions for establishing “interim rates” when a facility changes ownership or has a significant change in licensed bed capacity. Regs., Conn. State Agencies § 17-311-55. An interim rate is a temporary, estimated rate that is replaced when the facility files its required annual cost report at the scheduled time. If a facility fails to file a timely cost report after interim rates have been issued, the department’s regulations also provide for a reduction in the facility’s reimbursement rate to the lowest rate issued to a comparable facility within the same level of care until a late cost report is filed. Regs., Conn. State Agencies, § 17-311-50. General Statutes (Rev. to 1993) § 17-311 (b), now 17b-238 (b), provides for an administrative hearing process if a facility is aggrieved by a department decision in the rate setting process. If a facility is still aggrieved after the hearing, the statute provides that the facility may submit the issues to a three member arbitration panel. Section 17-311 (b), now 17b-238 (b), requires that an aggrieved facility initiate the hearing process within ten days after written notice of the rates established by the commissioner of the department of social services.

On May 3,1993, the plaintiffs submitted to the defendants an application for the setting of the amount of the monthly payments. On the basis of that submission, the defendants determined that the plaintiffs would receive $65 per patient per day for the period of February 11, 1993, through June 30, 1993, and $60 per patient per day for the period of July 1, 1993, through June 30, 1994. Pursuant to § 17-311-55 of the department’s regulations, the department could adjust those rates and issue a replacement rate when the facility filed a report showing actual costs.

The plaintiffs did not timely file a 1993 annual cost report showing actual costs. Consequently, the department did not issue a replacement rate for the period February 11, 1993, through June 30, 1994, until July 27, 1995. The replacement rate of $60 was replaced with a rate set at $55.65 per day in a rate letter issued August 7, 1995. The plaintiffs did not appeal to challenge the replacement rates issued on July 27, 1995, and August 7, 1995. The replacement rates were adjusted so that the department was reimbursed by the amount overpaid to Lombardi Rest Home, Inc., because of the interim rates.

The accountant for Lombardi Rest Home, Inc., Donald Siclari, arranged to meet with the department to discuss the replacement rates and amounts owed. Siclari, along with an attorney for Lombardi Rest Home, Inc., met with the defendants on September 19, 1995. The parties agreed on a rate of $58.71 per patient per day for the period of July 1, 1993, through June 30, 1994. On October 3, 1995, Ludena sent to the plaintiffs the department’s standard letter memorializing the agreed upon rates, which also contained a “waiver of appeal rights.” Specifically, the letter informed the plaintiffs that payment would be made if the plaintiffs would waive their appeal rights related to the methods applied in computing rates for the facility for rate periods preceding June 30, 1994. The plaintiffs did not return or respond to the letter.

The plaintiffs brought this action under 42 U.S.C. § 1983 against the defendants in June, 1996. The court dismissed the plaintiffs’ action because of insufficient service of process. The plaintiffs then refiled the action. In granting summary judgment, the court ruled that the plaintiffs had failed to state a cause of action for violations of their first amendment rights of access to the courts and to petition for redress. This appeal followed.

I

The plaintiffs claim that the court improperly concluded that they had failed to state a claim under the first amendment alleging a denial of their right of access to the courts.

Our standard of review is well settled. “On appeal, [w]e must decide whether the trial court erred in determining that there was no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. ” (Internal quotation marks omitted.) Avon Meadow Condominium Assn., Inc. v. Bank of Boston Connecticut, 50 Conn. App. 688, 693, 719 A.2d 66, cert. denied, 247 Conn. 946, 723 A.2d 320 (1998). Because the court rendered judgment for the defendants as a matter of law, “our review is plenary and we must decide whether [the trial court’s] conclusions are legally and logically correct and find support in the facts that appear in the record.” (Internal quotation marks omitted.) Gateway Co. v. DiNoia, 232 Conn. 223, 229, 654 A.2d 342 (1995). “On appeal, however, the burden is on the opposing party to demonstrate that the trial court’s decision to grant the movant’s summary judgment motion was clearly erroneous.” 2830 Whitney Avenue Corp. v. Heritage Canal Development Associates, Inc., 33 Conn. App. 563, 567, 636 A.2d 1377 (1994).

The court concluded that the defendants were entitled to judgment as a matter of law because the complaint lacked essential allegations that they had interfered with or hindered the plaintiffs’ efforts to pursue a legal claim. The plaintiffs now assert that their complaint stated a cognizable claim of a denial of their first amendment right of access to the courts because it alleges that the defendants withheld payments in retaliation for the plaintiffs’ refusal to waive their appeal rights with respect to the per diem rate to which they claim they were entitled.

The United States Supreme Court “has recognized that, embedded in the First Amendment right to ‘petition the government for a redress of grievances,’ is entitlement to seek recompense from the courts.” Haynesworth v. Miller, 820 F.2d 1245, 1255 (D.C. Cir. 1987); see also Cotto v. United Technologies Corp., 251 Conn. 1, 26-27, 738 A.2d 623 (1999) (Borden, J., concurring and dissenting). To state a valid § 1983 claim, a plaintiff must establish that “(1) the conduct complained of was committed by a person acting under color of state law, and (2) this conduct deprived a person of rights, privileges or immunities secured by the Constitution or laws of the United States.” (Internal quotation marks omitted.) Greenwich Citizens Committee, Inc. v. Counties of Warren & Washington Industrial Development Agency, 77 F.3d 26, 29-30 (2d Cir. 1996). The United States Supreme Court recently restated that “in any action under § 1983, the first step is to identify the exact contours of the underlying right said to have been violated.” County of Sacramento v. Lewis, 523 U.S. 833, 841 n.5, 118 S. Ct. 1708, 140 L. Ed. 2d 1043 (1998). Therefore, the contours of the federal right of access to the courts must be examined.

To establish a violation of the right to access the courts, the plaintiffs must demonstrate that the alleged deprivation actually interfered with their access to the courts or prejudiced an existing action. Hikel v. King, 659 F. Sup. 337, 340 (E.D.N.Y. 1987). In addition, the plaintiffs must demonstrate that an “actual injury” resulted from the denial of access to the courts. Lewis v. Casey, 518 U.S. 343, 349, 116 S. Ct. 2174, 135 L. Ed. 2d 606 (1996). The “actual injury” requirement for a denial of access to the courts is more than “just any type of frustrated legal claim.” Id., 354.

Therefore, as noted by the court in its memorandum of decision, “to establish a violation of a right of access to courts, a plaintiff must demonstrate that a defendant caused actual injury . . . [that the defendant] took or was responsible for actions that hindered [a plaintiffs] efforts to pursue a legal claim . . . .” (Citations omitted; internal quotation marks omitted.) Monsky v. Moraghan, 127 F.3d 243, 247 (2d Cir. 1997), cert. denied, 525 U.S. 823, 119 S. Ct. 66, 142 L. Ed. 2d 52 (1998), quoting Lewis v. Casey, supra, 518 U.S. 349-51.

Here, the plaintiffs failed to allege an “actual injury.” The gravamen of the plaintiffs’ claim is that on October 3, 1995, the defendants wrote to the plaintiffs and advised them that the funds due to them would be paid if the plaintiffs waived their appeal rights related to the methods applied in computing rates for the periods before June 30, 1994. Thus, the plaintiffs claim that the defendants denied them their right of access to the courts prior to their filing an action.

The United States Court of Appeals for the Sixth Circuit has established an analysis to decide whether a violation of the right of access to the courts has occurred. “If the abuse occurs pre-filing, then the plaintiff must establish that such abuse denied her ‘effective’ and ‘meaningful’ access to the courts. . . . She can do this only by showing that the defendants’ actions foreclosed her from filing suit in state court or rendered ineffective any state court remedy she previously may have had.” (Citation omitted.) Swekel v. River Rouge, 119 F.3d 1259, 1263-64 (6th Cir. 1997), cert. denied sub nom. Swekel v. Harrington, 522 U.S. 1047, 118 S. Ct. 690, 139 L. Ed. 2d 636 (1998).

Here, the letter that the defendants sent to the plaintiffs did not foreclose legal action, nor did it render ineffective any state court remedy. The letter in question merely memorialized the rates that the parties had agreed on at the September 19, 1995 meeting. The waiver of appeal rights appears to be inserted as standard language by the department because the letter referred to what they agreed to do as a settlement of the matter. It may be noted that this rate would have been set earlier if the plaintiffs had complied with the statutes and the regulations by timely filing their cost reports. In addition, the plaintiffs could have declined the settlement and exhausted their administrative remedies, which they did not do. The letter is a summary of the agreement between the parties for a rate for a specific time. It settled all of the issues between the parties for the rate periods preceding June 30, 1994, and, thus, left nothing to appeal. The court properly concluded, therefore, that the plaintiffs had failed to allege a cause of action for a violation of the right of access to the courts.

II

In addition, the defendants raise the question of whether they are entitled to qualified immunity. “Although § 1983 on its face admits of no immunities . . . the United States Supreme Court has held that the qualified immunity defense protects government officials performing discretionary functions from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. . . . [For purposes of a § 1983 claim] [w]hether an official protected by qualified immunity may be held personally liable for an allegedly unlawful official action generally turns on the objective legal reasonableness of the action . . . assessed in light of the legal rules that were clearly established at the time it was taken.” (Citations omitted; internal quotation marks omitted.) Ham v. Greene, 248 Conn. 508, 519-20, 729 A.2d 740, cert. denied, 528 U.S. 929, 120 S. Ct. 326, 145 L. Ed. 2d 254 (1999).

The doctrine that determines the tort liability of agency employees is well established. “[A public officer] . . . has a qualified immunity in the performance of a governmental duty, but he may be liable if he misperforms a ministerial act, as opposed to a discretionary act. . . . The hallmark of a discretionary act is that it requires the exercise of judgment. On the other hand, ministerial acts are performed in a prescribed manner without the exercise of judgment or discretion as to the propriety of the action. . . . [T]he determination of whether official acts or omissions are ministerial or discretionary is normally a question of fact for the fact finder . . . .” (Citations omitted; internal quotation marks omitted.) Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 628, 749 A.2d 630 (2000).

Here, the conduct complained of falls squarely within the definition of a discretionary act. A discretionary act is an act that involves the exercise of judgment and discretion. It was within the defendants’ discretion, pursuant to § 17-314 (a), now § 17b-340 (a), to determine a “reasonable payment,” taking into account costs of service and a variety of other factors. The statute expressly calls for the commissioner of social services to exercise discretion in the inclusion or exclusion of costs and the revision of rates. See generally General Statutes (Rev. to 1993) § 17-314, now § 17b-340. The defendants were the individuals to whom the commissioner of social services delegated that discretion. The defendants exercised their judgment in determining the rates pursuant to § 17-314, now § 17b-340, and were thus entitled to qualified immunity.

We hold, therefore, that the court properly granted summary judgment because there is adequate factual, legal and logical support in the record for its conclusion that the plaintiffs failed to allege an injury and, thus, to state a cause of action for denial of their first amendments right of access to the courts and to petition the government for redress of grievances. Additionally, we hold that the defendants’ were entitled to qualified immunity.

The judgment is affirmed.

In this opinion the other judges concurred.

       The department of income maintenance was renamed the department of social services effective July 1, 1993. Public Acts 1993, No. 93-262, § 1.

       General Statutes (Rev. to 1993) § 17-314 (a), now 17b-340 (a), provides in relevant part: “The rates to be paid by or for persons aided or cared for . . . shall be determined annually ... by the commissioner of income maintenance, to be effective July first of each year except as otherwise provided in this subsection. Such rates shall be determined on a basis of a reasonable payment for such necessary services . . . .”

       It can be noted that because rates are adjusted annually, the rights at issue in this case are only for the period preceding June 30, 1994.

       Section 1983 of title 42 of the United States Code provides in relevant part: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . .

       Section 17-311-12 (a) of the Regulations of Connecticut State Agencies provides: “Commissioner means the commissioner or his designated representative.”


author: SPEAR, J.

text:
    ELM STREET BUILDERS, INC. v. ENTERPRISE PARK CONDOMINIUM ASSOCIATION, INC., ET AL.
    (AC 19994)
    Spear, Dranginis and Hennessy, Js.

      Argued January 24
    officially released June 12, 2001

      Nicole M. Fournier, with whom, on the brief, was Hugh F. Keefe, for the appellant (plaintiff).

      Martha Anne Wieler, for the appellees (defendants).
   Opinion

SPEAR, J.

The plaintiff, Elm Street Builders, Inc., appeals from the judgment of the trial court, rendered in favor of the defendants, Enterprise Park Condominium Association, Inc. (association), and the record owners of the twenty-one condominium units, after a trial to the court on its three count complaint alleging breach of contract, slander of title and a violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. The plaintiff claims that the court improperly (1) concluded that the defendants did not breach their contractual and statutory duties not to interfere with the plaintiffs exercise of its development rights, (2) refused to credit relevant evidence and testimony and (3) dismissed the plaintiffs slander of title and CUTPA claims. We affirm the judgment of the trial court.

In its memorandum of decision, the court set forth the following facts and procedural history. On January 13, 1989, Stephen Barbara, the president of Enterprise Park Group, Inc. (Enterprise Park), a Connecticut corporation that is not a party to this litigation, executed a document entitled Declaration of Enterprise Park (declaration). On January 18,1989, the declaration was recorded in the town of Hamden land records.

The purpose of the declaration was to create a common interest community pursuant to the provisions of General Statutes § 47-200 et seq., the Common Interest Ownership Act. The community was planned as a commercial condominium development consisting of two phases, with Enterprise Park as the developer. Phase one consisted of four buildings containing twenty-one units. Phase two consisted of the development rights to six additional buildings containing twenty-five units. The declaration permitted Enterprise Park to exercise the phase two development rights at any time, but not more than seven years after the initial declaration was recorded. The declaration also created the association to administer the affairs of the common interest community.

On the day that the declaration was executed, Enterprise Park sold a phase one unit by warranty deed to the defendants, Donald J. McPhee and Esther McPhee. The McPhee deed was recorded on January 18,1989, the same date as the declaration. In the next two months, Enterprise Park sold seven additional units to various individual defendants by way of warranty deeds.

On July 31, 1990, Barbara, on behalf of Enterprise Park, executed a “Modification of Declaration of Enterprise Park By Enterprise Park Group, Inc., The Declar-ant.” The modification was recorded in the town of Hamden land records on August 2, 1990. The modification added a completed signatory page to the previously recorded declaration, which inadvertently had contained a signatory page without any signatures. The declaration itself was not rerecorded. The modification stated that page 1-34, the signatory page, “does not show the due execution of said Declaration thereon, and is hereby corrected, modified, replaced and/or substituted by the attached Page 1-34 to reflect the due execution of said Declaration.” The substituted page was the same page included in the declaration recorded on January 18, 1989, but the new page contained signatures and dates indicating that the document was executed on January 13, 1989. The modification also stated: “Intending hereby to correct the Declaration as above stated not to otherwise affect any other page or Section of said Declaration.”

Thereafter, Enterprise Park sold the remaining phase one units to the other individual defendants some time prior to August 21, 1991. On that day, the rights held by Enterprise Park passed to New England Savings Bank by virtue of a judgment of foreclosure. On January 12,1993, the bank quitclaimed to the plaintiff for $76,000 “those special declarant rights and declarant development rights reserved . . . in . . . the Declaration . . . recorded ... on January 18, 1989 at Volume 977, Page 304, re-recorded for puiposes of proper execution at Volume 977, Page 342 .. . .”

During the next three years, the plaintiff did not exercise its development rights. Lawrence Brophy, president of the plaintiff, testified that the plaintiffs inaction was due to a “very sluggish” real estate market. On February 1,1996, counsel for the plaintiff wrote a letter to the defendant Joseph Levine, an officer of the association, setting forth a lengthy legal argument as to why the seven year development period expired on August 2, 1997, rather than on January 18, 1996, a date that already had passed. In the letter, the plaintiff expressed its understanding that the association “and/or its members have taken the position that the development rights held by the (plaintiff) have expired . . . .” The letter-stated that the plaintiff would commence litigation against the association and the individual unit owners, and seek monetary damages caused by any delay or cost “occasioned by the position taken by the association,” as well as multiple damages for unfair trade practices and bad faith on the part of the association. The letter also stated that legal action would be commenced against the association and its members if they did not respond within ten days.

Levine, in his capacity as an association officer, responded by letter dated February 1, 1996. The letter stated in part: “We do not have any intention at the present time of becoming involved in any litigation regarding the development rights your client has. We agree that it would benefit the Association to have your client develop this property and create a workable relationship between us.”

After receiving Levine’s letter, counsel for the plaintiff prepared a document entitled “Agreement Re: Ratification of Development Rights,” which he sent to Levine on February 2,1996, with a request that the association sign it. The agreement stipulated that the plaintiffs development rights would expire on August 2, 1997. Although the document did not call for the signature of any of the individual defendants, the cover letter again stated that legal action would be taken against the association and all of the unit owners if the association did not execute the agreement. None of the defendants signed the agreement.

The plaintiff commenced the present action on April 4, 1996. In its complaint, the plaintiff claimed that because of uncertainty as to the expiration date of the phase two development rights, it could not obtain financing to proceed with the development. It further claimed that had the proposed stipulation between the parties been executed, the expiration date for the development rights would have been clarified, and the plaintiff could have proceeded with the project and earned substantial profits. Instead, the unused development rights expired. The plaintiff claimed that the association’s failure to execute the stipulation constituted a breach of its contractual obligations, slander of the plaintiffs title and a violation of CUTPA, resulting in substantial damage to the plaintiff. The complaint requested a declaratory judgment holding that the seven year period for the exercise of the phase two development rights be deemed to expire on August 2,1997. The complaint also applied for preliminary and permanent injunctive relief prohibiting any of the defendants from interfering with the plaintiffs exercise of its development rights or the securing of financing or the construction of units.

The court ordered that a hearing on the application for the temporary injunction be held on May 13, 1996. The hearing was not held. On that day, however, the court granted the defendants’ motion to transfer the case to another judicial district. Although Brophy later testified that had the issue of the seven year expiration date been resolved in 1996, the plaintiff would have had sufficient time to exercise its development rights prior to August 2, 1997, the court files do not reflect any further efforts by the plaintiff to request a hearing on its application for a temporary injunction or its request for a declaratory judgment. The pleadings were closed on December 10, 1997.

The case was tried to the court in May, 1999. The complaint requested various forms of relief, but the claims at trial and in the plaintiffs posttrial brief were reduced to a claim for damages on the ground that the relief requested flowed from the defendants’ alleged breach of duties to the plaintiff in refusing to execute the “Agreement Re: Ratification of Development Rights.” Accordingly, the court concluded that there was no need to decide whether the plaintiffs development rights expired on January 18, 1996, or August 2, 1997. On August 24, 1999, the court rendered judgment for the defendants, and this appeal followed.

I

The plaintiff first claims that the court improperly concluded that the defendants did not breach their contractual duty not to interfere with the plaintiffs exercise of its development rights, and did not breach their contractual and statutory duty of good faith and fair dealing. We disagree.

We begin our analysis with a discussion of the appropriate standard of review. In an action to recover damages for breach of contract, “[t]he trial court’s legal conclusions are subject to plenary review. [W]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision . . . .” (Internal quotation marks omitted.) Yellow Page Consultants, Inc. v. Omni Home Health Services, Inc., 59 Conn. App. 194, 199, 756 A.2d 309 (2000).

The court concluded that the defendants did not breach their contractual duty to the plaintiff arising from §§8.11 and 8.4 of the declaration, which obligate the defendants not to interfere with or diminish any “special declarant right,” including the phase two development rights. The court also concluded that the defendants did not breach their statutory obligation to act in good faith in the performance of their duties as members of the condominium association.

The duty of good faith under General Statutes § 47-211 requires that “[ejvery contract or duty governed by [the Common Interest Ownership Act] imposes an obligation of good faith in its performance or enforcement.” The common-law duty of good faith and fair dealing implicit in every contract requires that “neither party [will] do anything that will injure the right of the other to receive the benefits of the agreement. . . . Essentially it is a rule of construction designed to fulfill the reasonable expectations of the contracting parties as they presumably intended.” (Citations omitted; internal quotation marks omitted.) Middletown Commercial Associates Ltd. Partnership v. Middletown, 53 Conn. App. 432, 437, 730 A.2d 1201, cert. denied, 250 Conn. 919, 738 A.2d 657 (1999).

Here, the conduct alleged to be a violation of the defendants’ duties and obligations is the failure of the association to execute a single document. The court concluded that although the defendants had obligations under the declaration, the duty not to interfere with or diminish a special declarant right did not require that the association execute a stipulation as to when the phase two development rights expired. We agree with the court that Enterprise Park, the original declarant, rather than the defendants, created the alleged ambiguity as to when the development rights expired. Moreover, we know of no provision in the declaration that requires or permits either the association or the individual defendants to enter into a stipulation to resolve possible ambiguities in its language or terms. Furthermore, the proposed stipulation called for the association’s signature, not for the signatures of the individual defendants. We, accordingly, agree with the court that the association’s refusal to sign the proposed stipulation did not interfere with the plaintiff’s development rights, and did not constitute a breach of the association’s duty of good faith and fair dealing or that of the individual defendants. We thus find that the conclusions of the court axe legally and logically correct, and properly supported by the facts.

The plaintiff argues that the defendants’ refusal to act constituted “interference,” and that the duty of good faith and fair dealing required their active cooperation in clarifying when the development rights expired. The plaintiff claims that Connecticut courts and the Restatement (Second) of Contracts recognize that the duty of good faith and fair dealing requires that the parties be faithful to their reasonable expectations and agreed common purpose, and that bad faith may consist of inaction. It claims that the defendants had an incentive for adopting a posture of passive resistance because the phase two development rights would revert to the association and its members after the rights had lapsed. It further claims that the individual defendants were motivated to resist signing the document by their concern that the phase two buildings would compete with the phase one buildings and that the association had campaigned for various uncompleted phase one improvements in exchange for its cooperation. The plaintiff described the defendants’ conduct as a “shakedown,” which ultimately resulted in their unjust enrichment. We disagree.

The following facts are necessary to our resolution of this issue. At trial, Robert Lietze, the plaintiffs attorney in February, 1996, testified that Levine had told him that he would have signed the proposed stipulation in his capacity as an officer of the association if the association members had approved it. Lietze also testified that the association members had requested consideration in the form of landscaping, lighting and sidewalk improvements that had not been completed in phase one, and which the plaintiff was not legally required to provide, in exchange for their approval. He testified that negotiations then broke down.

Levine followed with testimony that the association initially did not sign the proposed stipulation because it was not represented by legal counsel, did not want to incur any costs and saw no reason to sign it at that time. He testified that, when the plaintiff contacted him on February 1, 1996, he believed that the development rights already had expired and that neither he, nor the other association members, were aware that the documents filed in 1989 may have been deficient. He agreed with Lietze, however, that the association refused to sign the stipulation because the plaintiff did not comply with the association’s request to complete the phase one improvements. Levine nonetheless testified that the association never took a formal vote that it wanted to keep the plaintiff from building phase two and never took a formal position as to when the development rights expired.

“Every contract imposes upon each party a duty of good faith and fair dealing in its performance and its enforcement.” 2 Restatement (Second), Contracts, Good Faith and Fair Dealing § 205, p. 99 (1981). “Subterfuges and evasions violate the obligation of good faith in performance even though the actor believes his conduct to be justified. But the obligation goes further: bad faith may be overt or may consist of inaction, and fair dealing may require more than honesty. A complete catalogue of types of bad faith is impossible, but the following types are among those which have been recognized in judicial decisions: evasion of the spirit of the bargain, lack of diligence and slacking off, willful rendering of imperfect performance, abuse of a power to specify terms, and interference with or failure to cooperate in the other party’s performance.” Id., comment (d), pp. 100-101.

“To prove a claim for bad faith under Connecticut law, the plaintiffs [are] required to prove that the defendants engaged in conduct designfed] to mislead or to deceive ... or a neglect or refusal to fulfill some duty or some contractual obligation not prompted by an honest mistake as to one’s rights or duties .... [B] ad faith is not simply bad judgment or negligence, but rather it implies the conscious doing of a wrong because of dishonest purpose or moral obliquity ... it contemplates a state of mind affirmatively operating with furtive design or ill will. . . . Moreover, [b]ad faith is an indefinite term that contemplates a state of mind affirmatively operating with some design or motive of interest or ill will.” (Citation omitted; internal quotation marks omitted.) Chapman v. Norfolk & Dedham Mutual Fire Ins. Co., 39 Conn. App. 306, 320, 665 A.2d 112, cert. denied, 235 Conn. 925, 666 A.2d 1185 (1995).

Here, the plaintiff has failed to establish that the association’s refusal to sign the proposed stipulation and the alleged lack of cooperation by the individual defendants were motivated by bad faith. The record contains no evidence that the defendants were involved in a “shakedown” of the plaintiff to obtain the development rights for themselves. Although Lietze and Levine testified that discussions broke down when the plaintiff would not agree to completing the phase one improvements, the impasse that appears to have developed does not rise to the level of a “shakedown.” Levine’s letter stated that the association would benefit from having the plaintiff develop the property and from establishing a “workable relationship” with the plaintiff. The association also never took a formal vote that it wanted to keep the plaintiff from building phase two and never adopted a formal position as to when the development rights expired. In addition, we know of no testimony by any party that referred to the fact that either the association or the individual defendants wanted to exploit the alleged ambiguity in the declaration to their financial advantage. We therefore conclude that the defendants did not engage in any conscious wrongdoing or conduct designed to mislead or deceive the plaintiff, were not motivated by ill will or furtive design and, thus, cannot be said to have acted in bad faith by refusing to sign the proposed stipulation.

II

The plaintiff next claims that the court improperly refused to credit evidence and testimony offered by the plaintiff on the issue of damages. Because we concluded in part I that the defendants did not breach their duty not to interfere with or diminish the plaintiffs exercise of the phase two development rights, we do not reach the issue of damages.

Ill

The plaintiff finally claims that the court improperly rejected its slander of title and CUTPA claims, both of which were based on the defendants’ failure to sign the proposed stipulation. We disagree.

As we previously stated, our standard of review when the legal conclusions of the trial court are challenged is plenary, and requires us to determine whether the conclusions reached are legally and logically correct and whether they find support in the facts set forth in the memorandum of decision. Yellow Page Consultants, Inc. v. Omni Home Health Services, Inc., supra, 59 Conn. App. 199.

A

The plaintiff first claims that the court improperly determined that it failed to prove the essential elements of a slander of title claim. We disagree.

“A cause of action for slander of title consists of the uttering or publication of a false statement derogatory to the plaintiffs title, with malice, causing special damages as a result of diminished value of the plaintiffs property in the eyes of third parties. The publication must be false, and the plaintiff must have an estate or interest in the property slandered. Pecuniary damages must be shown in order to prevail on such a claim.” 50 Am. Jur. 2d, Libel and Slander § 554 (1995); see also Frank Mercede & Sons v. Tischler Und Sohn, Superior Court, judicial district of Stamford-Norwalk, Docket No. 172470 (December 2, 1999).

Here, where the claim is based on the defendant’s refusal to sign an agreement rather than an affirmative act, the plaintiff has failed to prove at least two of the essential elements of a slander of title claim, namely, a “statement” made with “malice.” Accordingly, we conclude that the court’s ruling was legally and logically correct, and was properly supported by the facts.

The plaintiff suggests that a claim for slander of title does not require proof that the defendants made statements with malice in disparagement of its title. The plaintiff relies on W. Prosser & W. Keeton, Torts (5th Ed. 1984), and 3 Restatement (Second), Torts, Disparagement of Property-Slander of Title § 624, pp. 342-45 (1977), for the proposition that modem commentators note that slander of title is only one species of a broader class of tort claims generally categorized as “injurious falsehood.” The plaintiff argues that injurious falsehood may be claimed when a party refuses to speak but has a contractual duty to do so, and that malice may take the form of improper or unjustifiable motive. The plaintiff suggests that both are present in this case. We do not agree.

The plaintiff mischaracterizes the positions of the commentators on which he relies because both point out that one of the necessary elements of a claim for injurious falsehood is publication, which is not present here. See W. Prosser & W. Keeton, supra; see also 3 Restatement (Second), supra, § 624, pp. 342-45. Moreover, the plaintiff provides no case law or other legal support for its argument that “refusal to speak” and “improper motive” can be substituted for the elements of a “statement” made with “malice” in a claim for slander of title. Accordingly, we conclude that the ruling of the court was legally and logically correct, and that the court properly rejected the plaintiffs slander of title claim.

B

The plaintiff also claims that the couit improperly concluded that it failed to prove the existence of an “unfair practice” under CUTPA. The plaintiff bases its CUTPA claim on the allegation that the defendants wrongfully refused to carry out their contractual duty to sign the proposed stipulation. Because we concluded in part I that the defendants did not breach their contractual duty, the plaintiffs CUTPA claim necessarily must fail.

The judgment is affirmed.

In this opinion the other judges concurred.

       The record owners of the twenty-one units, as listed in the complaint dated April 2, 1996, are Octagon Associates; Joseph Levine; Burton Firtel and Barry Saunders, doing business as Barbur Associates; Elio Floriano and Mario Floriano; Joseph Nuzzo and Paula Milone-Nuzzo; Abby A. Miller, trustee of the David Francis Nelson Trust; Paul J. Avitable; Michael Nero and Gerardo Nero; and Donald J. McPhee and Esther McPhee.

       The plaintiff also claims that the court improperly declined to decide when the phase two development rights expired. Although this issue was included in the plaintiffs preliminary statement of the issues, it was not included in the statement of issues presented in the plaintiffs appellate brief. Moreover, the brief fails to provide any legal authority or analysis on the alleged impropriety of the trial court’s ruling. “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. . . . Raymond v. Rock Acquisition Ltd. Partnership, 50 Conn. App. 411, 420, 717 A.2d 824 (1998); see also State v. Leary, 51 Conn. App. 497, 499, 725 A.2d 328 (1999); Blakeney v. Commissioner of Correction, 47 Conn. App. 568, 586, 706 A.2d 989, cert. denied, 244 Conn. 913, 713 A.2d 830 (1998). Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned.” (Internal (potation marks omitted.) In re Brandon W., 56 Conn. App. 418, 425, 747 A.2d 526 (2000). Accordingly, we decline to review the plaintiffs claim.

       We do not find evidence in the record as to why the hearing was not held.

       The declaration itself is not included in the record. All facts regarding declaration provisions are based on testimony at trial and the findings of fact in the court’s August 24, 1999 memorandum of decision.


author: FLYNN, J.

text:
    MICHAEL RAMOS, ADMINISTRATOR (ESTATE OF EDWARD RAMOS) v. TOWN OF BRANFORD ET AL.
    (AC 20449)
    Dranginis, Flynn and Shea, Js.

      Argued March 2
    officially released June 12, 2001

      Kristen S. Rufo, with whom, on the brief, was George H. Romania, for the appellant (plaintiff).

      Kevin C. Shea, with whom, on the brief, was Patrick M. Noonan, for the appellees (named defendant et al.).
   Opinion

FLYNN, J.

The plaintiff, Michael Ramos, administrator of the estate of the decedent, Edward Ramos, appeals from the summary judgment rendered in favor of the defendant town of Branford (town) and the defendant Peter Buonome. The plaintiff brought this action against the defendants, claiming that Buonome, as chief of the Branford fire department and the town’s fire marshal, knew or should have known that his reckless conduct was substantially certain to cause the death of the decedent.

On appeal, the plaintiff claims that the trial court improperly determined that (1) a genuine issue of material fact does not exist as to whether Buonome’s conduct was wilful and was committed with the knowledge that the death of the plaintiffs decedent was substantially certain to result, (2) the affidavit and certain documents offered in support of the plaintiffs opposition to the defendants’ motion for summary judgment are inadmissible, and (3) the substantial certainty exception to the exclusivity provision, General Statutes § 31-284 (a), of the Workers’ Compensation Act (act), General Statutes § 31-275 et seq., is limited to the industrial workplace. We affirm the judgment of the trial court.

The dispositive issue on appeal is whether the court improperly determined that no genuine issue of any material fact exists as to whether Buonome intentionally acted with the knowledge that an injury to the plaintiffs decedent was substantially certain to result. We conclude that the court properly determined that no genuine issue of material fact exists. Because the court considered all of the evidence offered by the plaintiff in deciding as it did, we decline to address the plaintiff s claims about the court’s having ruled inadmissible certain documents that were proffered in opposition to the summary judgment motion. Furthermore, we reserve for another day the issue of whether the substantial certainty test should be limited to the context of the industrial workplace.

The following facts and procedural history are relevant to this appeal. The plaintiffs decedent was a volunteer firefighter with the Branford fire department who died fighting a blaze on the evening of November 28, 1996. In count one of an amended complaint dated January 21, 1998, the plaintiff alleged that Buonome recklessly failed to promulgate, implement and enforce policies with respect to firefighting procedures and safety policies, and that Buonome knew or should have known that serious injury or death to Branford fire department personnel, including the plaintiffs decedent, was substantially certain to result. In count two, the plaintiff alleged that, pursuant to General Statutes § 29-305, Buonome had a mandatory duty to conduct annual inspections of commercial properties, including the commercial building at 43 School Ground Road in which the plaintiffs decedent died. The plaintiff further alleged that Buonome’s failure to conduct those inspections constituted a reckless disregard for the health and safety of department personnel, including the decedent, and that Buonome knew or should have known that serious injury or death to department personnel, including the decedent, would result.

The defendants responded by filing a motion to strike counts one and two on the ground that they were barred by the exclusivity provision of the act. The plaintiff objected, and the court thereafter denied the defendants’ motion. The court; reasoned that the defense must be raised by pleading a special defense.

The defendants then filed an answer and special defenses, including the defense of the exclusivity of the act. The defendants subsequently filed a motion for summary judgment on the same grounds as those set forth in their earlier motion to strike. The plaintiff objected and argued that a genuine issue of material fact exists as to whether Buonome’s conduct falls within the substantial certainty standard of the exception to the act’s exclusivity. At the hearing on the defendants’ motion for summary judgment, the court expressed concern about the dearth of the parties’ factual submissions in support of their respective positions. Thereafter, the court ordered the parties to submit additional affidavits, documents and memoranda of law in support of or in opposition to the motion for summary judgment.

In its memorandum of decision, the court granted the defendants’ motion for summary judgment on several grounds, including the ground that the exclusivity provision of the act bars the plaintiffs action against the defendants. The court determined that, as a matter of law, the substantial certainty test, as set forth in Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 639 A.2d 507 (1994) (Suarez I); see footnote 7; is not designed to deal with the inherently dangerous work environment of the firefighter because “firefighters will always face a cognizable risk of injury or death. This risk might be somewhat reduced by appropriate safety and inspection procedures, but it will never be reduced to anything approaching zero — no matter what the employer does.” (Emphasis in original.) The court then concluded that “[t]he substantial certainty test simply cannot be sensibly applied to the facts at hand.”

Notwithstanding that ruling, the court next considered whether the substantial certainty standard applies to the facts of this case. Before reaching the merits of the claim, the court ruled that several of the documents proffered by the plaintiff were inadmissible for various reasons. “In view of the gravity of the case,” however, the court further concluded that “even if the substantial certainty test were applicable to the present case and even if I were to treat the plaintiffs submissions as admissible in their entirety, the defendants’ motion for summary judgment must be granted” because, although evidence of “the defendants’ asserted failure to promulgate, implement and enforce certain safety policies and conduct inspections . . . [is] sufficient to show negligence, [it does] not establish the facts required by the substantial certainty test.” This appeal followed.

“The standards governing our review of a trial court’s decision to grant a motion for summary judgment are well established. Practice Book § 384 [now § 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 seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . (Internal quotation marks omitted.) Mas-trolillo v. Danbury, 61 Conn. App. 693, 698, 767 A.2d 1232 (2001).

“On appeal, [w]e must decide whether the trial court erred in determining that there was no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. . . . Because the trial court rendered judgment for the [defendant] as a matter of law, our review is plenary and we must decide whether [the trial court’s] conclusions are legally and logically correct and find support in the facts that appear in the record. ... On appeal, however, the burden is on the opposing party to demonstrate that the trial court’s decision to grant the movant’s summary judgment motion was clearly erroneous.” (Citations omitted; internal quotation marks omitted.) Id., 699.

The plaintiff proceeded in the trial court exclusively on the substantial certainty standard of the intentional tort exception to the act, and alleged that Buonome had recklessly failed to promulgate, implement and enforce policies with respect to matters including, but not limited to, firefighter training, fire ground emergency rescue procedures, prefire planning of commercial buildings, effective fire ground radio communications and a dedicated fire ground channel, and the use of safety equipment, self-contained breathing apparatus and a fire ground management system. Therefore, the court’s inquiry was limited to determining if there were any genuine issues of material fact as to whether Buo-nome’s alleged acts were undertaken with the intent to cause injury and whether Buonome was aware that an injury was substantially certain to result from his acts.

In Jett v. Dunlap, 179 Conn. 215, 219, 425 A.2d 1263 (1979), our Supreme Court recognized a narrow exception to the exclusivity of the act for intentional torts that an employer has committed upon an employee. In Mingachos v. CBS, Inc., 196 Conn. 91, 100, 491 A.2d 368 (1985), the court expressly declined, however, to extend judicially the intentional tort exception to include employee injuries resulting from an employer’s intentional, wilful or reckless violation of safety standards established pursuant to federal and state laws. See also Perille v. Raybestos-Manhattan-Europe, Inc., 196 Conn. 529, 536, 494 A.2d 555 (1985); Ray v. Schneider, 16 Conn. App. 660, 673, 548 A.2d 461, cert. denied, 209 Conn. 822, 551 A.2d 756 (1988).

Next, in Suarez I, supra, 229 Conn. 105, our Supreme Court explicated its earlier holding in Mingachos and extended the intentional tort exception to include those factual situations in which an employee’s injuries “were caused by work conditions intentionally created by the employer which made the injuries substantially certain to occur.” In so deciding, the court expressed the concern that “the intentional tort test, i.e., whether the employer intended the specific injury . . . allows employers to injure and even kill employees and suffer only workers’ compensation damages so long as the employer did not specifically intend to hurt the worker. Beauchamp v. Dow Chemical Co., 427 Mich. 1, 25, 398 N.W.2d 882 (1986). Prohibiting a civil action in such a case would allow a corporation to cost-out an investment decision to kill workers. Blankenship v. Cincinnati Milacron Chemicals, Inc., 69 Ohio St. 2d 608, 617, 433 N.E.2d 572 [(Celebrezze, C. J., concurring), cert. denied, 459 U.S. 857, 103 S. Ct. 127, 74 L. Ed. 2d 110 (1982)]. The substantial certainty test provides for the intent to injure exception to be strictly construed and still allows for a plaintiff to maintain a cause of action against an employer where the evidence is sufficient to support an inference that the employer deliberately instructed an employee to injure himself. Gulden v. Crown Zellerbach Corp., 890 F.2d 195, 197 (9th Cir. 1989).” (Internal quotation marks omitted.) Suarez I, supra, 109-10.

It is important to note that the substantial certainty standard is a subset of the intentional tort exception. See A. Sevarino, Connecticut Workers’ Compensation After Reforms (2d Ed. 1999) § 5.31, p. 393. Whereas the intentional tort test requires that both the act producing the injury and the specific injury to the employee must be intentional; Mingachos v. CBS, Inc., supra, 196 Conn. 102; the substantial certainty standard requires a showing that the act producing the injury was intentional or deliberate and the resulting injury, from the standpoint of the employer, was substantially certain to result from the employer’s acts or conduct. Suarez I, supra, 229 Conn. 109-10.

We note that while Suarez I has liberalized the intentional tort standard to the extent that an injured employee may bring an action against his employer where the evidence is sufficient for a trier of fact to infer that the employer believed the injury was substantially certain to follow from his acts or conduct, the plaintiff still must prove that the employer’s conduct was intentional. “[I]ntent refers to the consequences of an act . . . [and] denote [s] that the actor desires to cause [the] consequences of his act, or that he believes that the consequences are substantially certain to follow from it. 1 Restatement (Second), Torts § 8A (1965).” (Internal quotation marks omitted.) Suarez I, supra, 229 Conn. 108. “[Its] characteristic element is the design to injure either actually entertained or to be implied from the conduct and circumstances.” (Internal quotation marks omitted.) Id., 109.

“Since the legal justification for the common-law action is the nonaccidental character of the injury from the defendant employer’s standpoint, the common-law liability of the employer cannot ... be stretched to include accidental injuries caused by the gross, wanton, wilful, deliberate, intentional, reckless, culpable, or malicious negligence, breach of statute, or other misconduct of the employer short of a conscious and deliberate intent directed to the purpose of inflicting an injury. 6 A. Larson & L. Larson, Workmen’s Compensation (1997) § 68.13, pp. 13-12 through 13-13. What is being tested is not the degree of gravity of the employer’s conduct, but, rather, the narrow issue of intentional versus accidental conduct.” (Internal quotation marks omitted.) Suarez v. Dickmont Plastics Corp., 242 Conn. 255, 279, 698 A.2d 838 (1997) (Suarez II).

With those principles in mind, we now consider the plaintiffs claim that the court improperly determined that the proffered evidence demonstrated an absence of a genuine issue of any material fact. The defendants offered an affidavit by Buonome, dated March 8, 1999, in support of their motion for summary judgment. Buo-nome attested therein that he “had no knowledge or information that a fire was substantially certain to or would occur on [November 28, 1996] in the town of Branford” or at the premises located at 43 School Ground Road. He further attested that he “had no knowledge or information at any time prior to the November 28, 1996 fire that Edward Ramos’ death was substantially certain to occur at any time, at any location, or as a result of any alleged act or omission of mine.” Last, Buonome attested that he “never undertook or omitted any act or engaged in any conduct that was intentionally designed to cause injury to or the death of Edward Ramos.”

The plaintiff responded with a counteraffidavit by Samuel A. Maglione, an expert in performing fire loss and fire code analysis, who attested that fire departments nationwide use accountability systems, train their personnel in the use of self-contained breathing apparatus and comply with statutorily required fire inspections of commercial buildings. He further attested: “It is my expert opinion that, given . . . Buo-nome’s knowledge and expertise in firefighting procedures . . . Buonome’s failure to properly train and certify Edward Ramos in the use of a self-contained breathing apparatus . . . and [his] failure to implement an accountability system ... in addition to Buo-nome’s failure to conduct statutorily mandated fire inspections of commercial buildings were intentional acts necessarily committed with knowledge that the injury to or death of a firefighter, including Edward Ramos, was substantially certain to result.”

In response to the court’s request for additional evidence, the plaintiff submitted, inter alia, the affidavit of his counsel, George H. Romania. Without deciding whether the affidavit, which was offered to explain the purpose of the documents appended thereto, was procedurally proper; see Suarez I, supra, 229 Conn. 108; we note that the affidavit states that a fire investigation report done by the National Fire Protection Association (NFPA) was offered to show that the Branford fire department had failed to comply with specific NFPA standards and with standards of the federal Occupational Health and Safety Act of 1970 (OSHA), 29 U.S.C. § 651 et seq., concerning personal protective clothing and equipment, personnel certifications, communication problems at the fire scene and the lack of a ground accountability program. The affidavit further states that a citation to the town from the state department of labor’s division of occupational safety and health was offered to show that the Branford fire department had failed to comply with specific OSHA standards including, among other violations, the failure to have a ground accountability program in place. The plaintiff offered additional documentation for the purpose of further substantiating the alleged OSHA violations.

As previously discussed, the intentional tort exception, as a matter of law, does not encompass injuries to employees resulting from an employer’s intentional, wilful or reckless violations of safety standards established pursuant to federal and state laws without a conscious and deliberate intent directed to the purpose of inflicting an injury. Mingachos v. CBS, Inc., supra, 196 Conn. 100; see Suarez II, supra, 242 Conn. 279. Although the plaintiff in the present case alleged that the reckless conduct of his decedent’s employer caused the decedent’s death; compare Suarez I, 229 Conn. 101 and 107 (complaint alleged employee’s injuries caused by employer’s policy requiring employees to clean still operating machinery by hand); the substance of his claims is that the defendants violated various OSHA, statutory and NFPA safety standards. Here, there is no evidence in the record that the defendants’ alleged violation of regulations and safety standards was committed with the purpose of causing injury.

We recently rejected an argument similar to that proffered by the plaintiff in this case. In Melanson v. West Hartford, 61 Conn. App. 683, 689, 767 A.2d 764, cert. denied, 256 Conn. 904, 772 A.2d 595 (2001), the plaintiff, an injured police officer, argued that the failure of his employer, the West Hartford police department, to staff, train, manage and supervise employees adequately, despite warnings that its employees were at risk, gave rise to an inference that the employer intentionally created a dangerous condition that made the plaintiffs injuries substantially certain to occur. In that case, the plaintiff was accidentally shot by a fellow officer while executing a search warrant. We upheld the trial court’s granting of the defendant’s motion to strike, which had the effect of rendering judgment in favor of the employer because the employer’s failure to implement such training and safety programs did not provide a factual basis for a finding that the employer knew that the plaintiffs injury was substantially certain to occur. Id. We concluded that the “[fjailure to take affirmative remedial action, even if wrongful, does not demonstrate an affirmative intent to create a situation that causes personal injury.” Id. & n.7.

Unlike the situation in Suarez I, there is no evidence in this case that the employer required the plaintiffs decedent to conduct himself in a manner that would “support an inference that the employer deliberately instructed an employee to injure himself.” (Internal quotation marks omitted.) Suarez I, supra, 229 Conn. 110. In Suarez I, our Supreme Court reversed our decision upholding the trial court’s granting of summary judgment in favor of the defendant where the plaintiff offered evidence showing that the employer required him to use his hands to clean machinery in operation rather than by using a vacuum after the machinery was shut off. The court concluded that “a jury could reasonably infer . . . that the defendant’s conduct constituted more than a mere failure to provide appropriate safety or protective measures, and that the plaintiffs injury was the inevitable and known result of the actions required of him by the defendant.” Id., 111. In contrast, the misconduct of which the plaintiff complains in this case consists of various OSHA and safety standard violations. Without a showing that the employer’s violations of safety regulations were committed with a conscious and deliberate intent directed to the purpose of inflicting an injury; see Suarez II, supra, 242 Conn. 279; “[a] wrongful failure to act to prevent injury is not the equivalent of an intention to cause injury.” Melanson v. West Hartford, supra, 61 Conn. App. 689 n.6.

Therefore, although those facts may be in dispute, they do not present genuine issues of any material facts. We conclude that the court properly determined that no genuine issue of material fact existed and that the defendant was entitled to judgment as a matter of law.

The judgment is affirmed.

In this opinion the other judges concurred.

       We note that Yvonne Ramos subsequently replaced Michael Ramos as the administrator of the estate of Edward Ramos.

       The plaintiff also named Richard D. Patterson, George Brencher III and Gene Bontatibus, doing business as Floors and More, as defendants. The plaintiff subsequently withdrew the complaint against them on March 17, 1999. Therefore, we refer to the town and Buonome as the defendants in this appeal.

       General Statutes § 31-284 (a) provides in relevant part: “An employer who complies with the requirements of subsection (b) of this section shall not be liable for any action for damages on account of personal injury sustained by an employee arising out of and in the course of his employment or on account of death resulting from personal injury so sustained, but an employer shall secure compensation for his employees as provided under this chapter .... All rights and claims between an employer who complies with the requirements of subsection (b) of this section and employees, or any representatives or dependents of such employees, arising out of personal injury or death sustained in the course of employment are abolished other than rights and claims given by this chapter . . .

       Count one of the amended complaint alleged in relevant part: “For a substantial period of time prior to said fire, the defendant recklessly failed to promulgate, implement and enforce policies with respect to matters including, but not limited, to:
      “a. Firefighting training;
      “b. Fire ground procedures;
      “c. Prefire planning of commercial buildings;
      “d. Fire ground emergency rescue procedures;
      “e. The use of safety equipment;
      “f. The use of self-contained breathing apparatus;
      “g. The accountability of department personnel, including Edward Ramos, on the fire ground;
      “h. Effective fire ground radio communications and a dedicated fire ground channel; and
      “i. The use of a fire ground management system.”

       General Statutes § 29-305 provides in relevant part: “Each local fire marshal . . . for the purpose of satisfying themselves that all pertinent statutes and regulations are complied with, may inspect in the interests of public safety all buildings and facilities of public service, all buildings and facilities used for manufacturing and all occupancies regulated by the Fire Safety Code within their respective jurisdictions. Each local fire marshal shall inspect or cause to be inspected, at least once each calendar year and as often as may be necessary in the interests of public safety, all buildings and facilities of public service and all occupancies regulated by the Fire Safety Code within his jurisdiction . . . only for the purpose of determining whether the requirements specified in said code relative to smoke detection and warning equipment have been satisfied. . . .”

       The defendants also moved to strike counts one and two on the ground that they were barred by the doctrine of governmental immunity. The defendant s also sought to strike count two on the ground that § 29-305 does not provide a private cause of action against a local fire marshal.

       Pursuant to Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 105, 639 A.2d 507 (1994) (Suarez I), “an individual may bring a civil action for damages against his employer for injuries sustained at work where such injuries were caused by work conditions intentionally created by the employer which made the injuries substantially certain to occur . . . .” (Internal quotation marks omitted.) That cause of action is available in addition to the remedies provided by the act.

       In support of their motion for summary judgment, the defendants submitted an affidavit by Buonome. The plaintiff offered the counteraffidavit of Samuel A. Maglione, an expert on fire loss and fire code analysis, whom the plaintiff expected to call as a witness at trial.

       The court found that the affidavit of Samuel A. Maglione, the plaintiffs proffered expert on fire loss and fire code analysis, did not meet the threshold requirements of Practice Book § 17-46 and the Connecticut Code of Evidence § 7-2, because it “is sufficiently devoid of facts establishing personal knowledge [such] that it cannot be said to be reliable.” The court found the affidavit of George H. Romania, the plaintiffs counsel, to be “amere conduit for the documents appended thereto” and an inappropriate affidavit by a party’s counsel who asserts no personal knowledge. The court also ruled that a fire investigation report by the National Eire Protection Association concerning the November 28, 1996 fire was a hearsay document that was not covered by the hearsay exception for public records and reports because there was no evidence that it was a report made by a public official or agency. Last, the court ruled that a citation to the town from the state department of labor’s division of occupational safety and health was not a report as Romania identified it in his affidavit, but rather was “an accusation that the town has a right to contest.”

       In Mingachos, the plaintiffs decedent died from injuries he sustained in a workplace explosion. The plaintiff brought an action against his decedent’s employer on the theory that the employer wilfully and recklessly violated various state and federal safety regulations, thereby creating a hazardous condition, and intentionally and wilfully caused the injuries and subsequent death of the decedent. Mingachos v. CBS, Inc., supra, 196 Conn. 95.

       Because* the court assumed that all of the proffered evidence was admissible, we, too, examine all of the evidence in determining whether the court properly decided as it did.

       In response to the court’s request for further evidence, the defendants provided a supplemental affidavit dated December 6, 1999, in which Buonome attested that if an annual inspection under § 29-305 had been performed on the building in which the decedent died, none of the conditions identified in the second count of the plaintiffs amended complaint would have been reported because neither the fire code nor any statute or regulation required automatic sprinklers or prohibited a wood truss construction of the building. He further stated that "[a]t all relevant times, a prefire plan was not required for the premises involved in this fire under any pertinent statute or regulation. At all relevant times, it is and was the policy and practice of the Branford fire department to prepare prefire plans only for major target hazard premises throughout the town, such as schools and health care facilities.” Regarding an accountability system for fire ground operations, Buonome stated that he directed fire department personnel to improve the existing accountability system approximately one and one-half years prior to the plaintiffs having brought this action and that pursuant to his direction, “an improved accountability system was developed at that time and utilized up through and including the date of this fire.”
      The defendants also submitted relevant sections of the standard operating procedures for the Branford fire department that were in effect at the time of the fire, which included departmental policies and instructions on protective clothing, a protective clothing inspection program, fire scene communication policies, national fire incident reporting system, fire origin and cause analysis, safety procedures and tactical guidelines for fire ground safety, liquified petroleum gas emergencies and self-contained breathing apparatus, including personal distress devices. Additionally, the defendants submitted a copy of a fire investigation report by the National Fire Protection Association, which determined that all of the firefighters who entered the building were at risk of being trapped and lolled, and attributed the following significant factors to the death of the plaintiffs decedent: (1) the absence of an automatic sprinkler protection in the building, (2) the lack of a prefire plan or other information regarding the building’s roof structure and materials, and (3) ineffective verbal communication on the fire ground. The National Fire Protection Association also attributed the following factors as detractors from the rescue of the firefighters who were trapped in the burning building and the efficiency of the fire ground operations that were in place: (1) ineffective use of an incident management system and no formal firefighter accountability system, (2) the lack of a rapid intervention crew and the absence of a standard operating procedure thereon, (3) the lack of a dedicated fire ground channel and (4) ineffective radio communication.

       The plaintiff attached the following documents to the Romania affidavit: (1) a copy of a fire investigation report by the National Fire Protection Association; (2) a copy of a citation to the town from the state department of labor’s division of occupational safety and health; (3) information about personnel training and Edward Ramos’ emergency medical technician certification, which was taken from the records of the Branford fire department; (4) minutes from the January 25, 1996 monthly meeting of the Branford fire department board of fire commissioners; (5) memo of the Branford fire department training division, dated May 15, 1996; (6) memo from the Bran-ford professional firelighters Local 2533 to the deputy chiefs and operators; (7) memo from the Branford fire department to Buonome dated July 11, 1996; (8) Branford fire department memo dated July 13, 1996; and (9) Branford fire department records concerning training of volunteer firefighters.