author: HENNESSY, J.

text:
    DEBORAH AMODIO v. VINCENT AMODIO
    (AC 15692)
    Dupont, C. J., and Landau and Hennessy, Js.
    Argued February 24
    officially released July 15, 1997

      Richard L. Goldblatt, with whom, on the brief, was Michael Boardman, for the appellant (plaintiff).

      Donald L. Altschuler, with whom, on the brief, was Paul J. Dor si, for the appellee (defendant).
   Opinion

HENNESSY, J.

The plaintiff appeals from the judgment of the trial court granting the defendant’s motion for modification of child support awarded to the plaintiff upon the dissolution of their marriage. On appeal, the plaintiff claims that the trial court improperly reduced an order of child support solely because the court that rendered the judgment of dissolution had failed to make a specific finding that a substantial upward deviation from the child support guidelines was warranted. We reverse the judgment of the trial court.

On July 31, 1990, the parties stipulated, pursuant to General Statutes § 46b-51, that their marriage had broken down irretrievably and requested a dissolution. The parties submitted a lengthy and comprehensive written separation agreement that covered, inter alia, alimony, child support and division of assets. On July 31, 1990, the marriage was dissolved and the agreement, which awarded the plaintiff $325 per week in child support for their two minor children, was approved by the trial judge as an order of the court. The agreement specifically provided that “[t]here shall be no alimony award to either party.”

On April 7,1995, the defendant sought a modification of the support order. He alleged that the order did not conform to the 1994 child support guidelines and, therefore, should be modified. In addition, the defendant alleged that the order did not conform to the child support guidelines in effect at the time of the original order. After reviewing financial affidavits and hearing testimony, the trial court granted the defendant’s motion and ordered a downward modification of the support order to conform to the guidelines now in effect. The modified support order required the defendant to pay $220 per week. The trial court based the modification on the original dissolution court’s substantial deviation from the guidelines and its failure to make a specific finding on the record that the application of the guidelines would be inequitable or inappropriate pursuant to General Statutes § 46b-215b (a). The plaintiff appeals from the granting of the motion to modify.

As a threshold matter, we must consider, sua sponte, whether the trial court had jurisdiction to modify the support order. “This court may raise the issue of subject matter jurisdiction sua sponte. Jurisdiction of the subject matter is a question of law and cannot be waived or conferred by consent either in the trial court or here. . . . Serrani v. Board of Ethics, 225 Conn. 305, 308, 622 A.2d 1009 (1993).” (Internal quotation marks omitted.) L & G Associates, Inc. v. Zoning Board of Appeals, 31 Conn. App. 12, 13, 623, A.2d 494 (1993).

Pursuant to General Statutes § 46b-86 (a), the trial court has continuing jurisdiction to modify orders for periodic payment of permanent or pendente lite alimony or support, subject to proof of certain statutory conditions. Bunche v. Bunche, 180 Conn. 285, 289, 429 A.2d 874 (1980). Its jurisdiction to modify, however, is limited. Under the statute, modification is allowed “[ujnless and to the extent that the decree precludes modification . . . .” General Statutes § 46b-86 (a). Here, the parties’ separation agreement, which was incorporated into the dissolution judgment, provided that, “[t]his Agreement and the supporting Affidavit of Financial Circumstances is predicated on a wage increase on the level of $900 per week including overtime work which the Husband expects to be able to maintain. It is agreed that any modification of support orders sought in the future shall be based upon a change in circumstances reflecting an increase in gross wages above the base of $900 per week as stated in the affidavit filed herewith.” We now must, therefore, decide whether this provision effectively limited the trial court’s power to modify the support order.

“Provisions which preclude modification of alimony [or support] tend to be disfavored.” Eldridge v. Eldridge, 4 Conn. App. 489, 493, 495 A.2d 283 (1985); see also Cummock v. Cummock, 180 Conn. 218, 222, 429 A.2d 474 (1980); Scoville v. Scoville, 179 Conn. 277, 279, 426 A.2d 271 (1979). If a provision purportedly precluding modification is ambiguous, the order will be held to be modifiable. McGuinness v. McGuinness, 185 Conn. 7, 9, 440 A.2d 804 (1981); Scoville v. Scoville, supra, 179 Conn. 280; Rau v. Rau, 37 Conn. App. 209, 212, 655 A.2d 800 (1995). “Where a provision which precludes or restricts a later court’s power to modify financial orders is clear and unambiguous, however, it will be upheld.” Eldridge v. Eldridge, supra, 493-94; see also Solo v. Solo, 2 Conn. App. 290, 293, 478 A.2d 255 (1984).

In Eldridge the decree contained a clause that stated: “It is not contemplated at this time that the defendant will continue her present part-time employment and that in the future she will be employed full-time, however such employment shall not be considered a change of circumstances until her gross annual income from earnings shall exceed Twenty-Five Thousand Dollars.” Eldridge v. Eldridge, supra, 4 Conn. App. 491. The plaintiff claimed that in incorporating this provision into the dissolution judgment, the trial court improperly circumscribed the discretion of a later court in determining what constitutes a substantial change of circumstances. We upheld the trial court’s judgment and stated that “[t]he condition, which hmits but does not preclude a later court from modifying the plaintiffs alimony obligation, is clear and unambiguous. The decree spells out with certainty the extent to which modification is precluded, and we will not inject into its language ambiguities which are not there.” Id., 494.

The decree in Solo also contained a clause that limited the court’s power to modify. The decree provided that the plaintiff husband could seek a modification of the court’s alimony order only if the defendant wife earned more than $8500 per year. Solo v. Solo, supra, 2 Conn. App. 291. The trial court modified the award after it found that the defendant’s earnings at the time of the hearing exceeded the threshold amount provided in the decree and we upheld the modification. Id., 294.

In the present case, as in Eldridge and Solo, the decree provision hmits the trial court’s power to modify. The clause clearly and unambiguously forecloses modification of the support order unless the defendant earns more than $900 per week. We find that this provision effectively limited a subsequent trial court’s power to modify the support order. Because the defendant presented the trial court with his financial affidavit, attesting that he earned $900 per week in gross income, the court was without jurisdiction to modify the order.

The judgment of modification is reversed and the case is remanded with direction to render judgment denying the motion to modify.

In this opinion the other judges concurred.

       The judgment provided: “It, is adjudged and decreed that the parties comply with the provisions of an Agreement between them dated July 26, 1990, which is found by the Court to be fair and equitable under all circumstances and is approved and incorporated herein by reference.”

       In the present appeal, neither party addressed the first line of General Statutes § 46b-86 (a), which provides: “Unless and to the extent that the decree precludes modification . . . .” In applying the plain language of the statute, we find that the trial court had limited jurisdiction to modify the original order of the child support.

       General Statutes § 46b-86 (a) provides in relevant part: “Unless and to the extent that the decree precludes modification, any final order for the periodic payment of permanent alimony or support or an order for alimony or support pendente lite may at any time thereafter be continued, set aside, altered or modified by said court upon a showing of a substantial change in the circumstances of either party or upon a showing that the final order for child support substantially deviates from the child support guidelines established pursuant to section 46b-215a, unless there was a specific finding on the record that the application of the guidelines would be inequitable or inappropriate. . . .”

       These cases address the ability of the parties to restrict a court’s power to modify alimony. We conclude, however, that in accordance with the provisions of § 46b-86 (a), which precludes modification of alimony or support if the decree so provides, the same rationale applies to support orders. See footnote 2.
      We further note that the present case is distinguishable from Guille v. Guille, 196 Conn. 260, 267-68, 492 A.2d 175 (1985), in which the Supreme Court affirmed the trial court’s opening of a divorce judgment and deleting the provision purporting to preclude modification of child support and custody because the children were unrepresented by counsel at the time of the original judgment. The present case is distinguishable because it does not involve children unrepresented at the time of the original judgment of dissolution who subsequently want to attack an agreement provision that purports to foreclose modification of support completely. We, therefore, conclude that Guille is not applicable here.

       Because we conclude that the trial court did not have jurisdiction to modify the order, we do not address the plaintiffs claims on appeal.


source: Caselaw Access Project

author: SCHALLER, J.

license: Public Domain

text:
    TDS PAINTING AND RESTORATION, INC. v. COPPER BEECH FARM, INC. JOHN M. RUDEY v. TDS PAINTING AND RESTORATION, INC.
    (AC 15929)
    Lavery, Landau and Schaller, Js.
    Argued February 18
    officially released July 22, 1997

      Alfred U. Pavlis, for the appellant-appellee (plaintiff in the first case, defendant in the second case).

      Scott R. Lucas, for the appellees-appellants (defendant in the first case and plaintiff in the second case).
   Opinion

SCHALLER, J.

This appeal involves a contractual dispute between TDS Painting and Restoration, Inc. (TDS), and Copper Beech Farm, Inc. (Copper Beech), regarding painting and restoration services performed by TDS for Copper Beech. Two civil actions arising from the dispute were consolidated for trial. In the first case, TDS brought an action against Copper Beech in which it sought to foreclose a mechanic’s lien in the amount of $57,894.71 for painting services together with interest, attorney’s fees and costs. Copper Beech denied the allegations in TDS’ complaint and filed a four count counterclaim alleging breach of contract, negligence, trespass arising out of lead paint deposited by TDS in the soil surrounding the residence and violation of the Home Improvement Act, General Statutes § 20-418 et seq., with a resulting per se violation of Connecticut’s Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. In the second case, John M. Rudey brought an action against TDS in which he repeated the substantive allegations of Copper Beech’s counterclaims and alleged that he, not Copper Beech, was the contracting party with TDS. The cases were consolidated and tried before an attorney trial referee pursuant to Practice Book § 430.

The attorney trial referee found the following facts. Copper Beech consists of fifty acres of real property with a number of buildings located on Long Island Sound at Mead Point in Greenwich. Copper Beech, which acquired the property in 1982 for $7.55 million, is a corporation owned entirely by John M. Rudey and his wife. Rudey is the president of Copper Beech and his wife is the secretary. In December, 1982, Rudey individually entered into a ten year lease with Copper Beech, under which the main residence on the property was leased to be used “as a living place for John M. Rudey and Family.” The Rudeys, whose permanent residence is in New York City, use the Copper Beech property as a summer home and occasional retreat. The lease was not an arm’s length or market transaction, but rather was used to reimburse Copper Beech for many of the costs associated with Rudey’s use.

In early 1991, Rudey wanted to have the main house on Copper Beech painted and restored. Rudey called Donald Freitag, president and owner of TDS, to discuss the proposed project. In mid-February, 1991, Freitag and Rudey discussed the scope of the job, the price and certain precautions that TDS would take. Before any contract was signed, TDS began work on the project at Rudey’s request.

In February, 1991, a written contract was executed by both parties. The contract is in the form of a proposal submitted to “Mr. John [Rudey] Copper Beech Farm Inc.” The contract specifies that work areas “will be covered thoroughly and cleaned up daily.” There is no maximum price for the work to be performed under the agreement, but rather an estimate that the labor will range from 250 to 500 “man hours” per week, which would be billed bimonthly.

TDS performed the work under the agreement for several weeks and submitted invoices to Copper Beech, which were paid with certain adjustments. Several disputes arose during the course of the job, including complaints by Joseph Blank, a horticulturist who resided at the farm and managed it for Copper Beech. Blank complained that TDS’ employees were littering the property and taking long and unjustified breaks. These issues were discussed by Rudey and Freitag. By April, 1991, the job had advanced considerably but was not yet completed, and the total cost had already exceeded $25,000. Rudey and Freitag discussed a supplemental agreement, designed to expand the scope of TDS’ work and also to address the additional costs to be incurred on the project. This supplemental contract, dated April 25, 1991, was also on a time and materials basis and stated that “all the above costs are estimates only and will be billed for the actual labor hours and materials used.”

Copper Beech paid the invoices submitted to it through June 16, 1991. TDS continued its work until the first week of August, 1991. At some point between mid-June and August, Rudey informed TDS that he believed that the April 25 contract had a fixed ceiling, which had been exceeded, and he refused to make any further payments. Rudey also told TDS that he believed that it was responsible for extensive damage to the Copper Beech property and therefore was entitled to no additional sums. Negotiations between the parties were not fruitful, and this litigation ensued.

The attorney trial referee made the following additional findings and conclusions: (1) TDS’ contract was with Copper Beech, not Rudey, and, therefore, TDS had sued the right party; (2) TDS did not prove that Copper Beech acted in bad faith, an exception to the provision in Home Improvement Act prohibiting recovery by an unlicensed home improvement contractor; (3) TDS is entitled to recover from Copper Beech because Copper Beech’s property is commercial in nature and, therefore, exempt from the provisions of the Home Improvement Act; and (4) Copper Beech in its counterclaim, and Rudey in his complaint, failed to prove that TDS was negligent in rendering its painting and restoration services. Accordingly, the attorney trial referee recommended that judgment be rendered in favor of TDS on its complaint, against Copper Beech on its counterclaim and against Rudey on his complaint. Moreover, the referee recommended that TDS was entitled to recover for the balance due on its written agreements with Copper Beech, and for its extras, in the total amount of $57,894.71, but recommended denial of an award of prejudgment interest to TDS.

Copper Beech and Rudey filed a motion to correct the referee’s report pursuant to Practice Book § 438. In response, the referee filed a supplemental report in which he denied the substance of the motion to correct, but modified his recommendation as to TDS’ recovery. As modified, the referee’s recommendation stated that TDS was entitled under count one to the amount due under the written contracts, but not with respect to the extra services performed by TDS at the oral request of Copper Beech. Prior to the hearing before the attorney trial referee, TDS and Copper Beech had signed a stipulation that the trials of the two consolidated cases would be bifurcated and that the issue of attorney’s fees would be addressed at a separate posttrial hearing. After the attorney trial referee issued his initial report and recommendation for judgment, he held a hearing on TDS’ application for $120,000 in legal fees and $20,000 in costs. After the hearing, he recommended an award of $84,000 for TDS’ counsel.

Subsequently, Copper Beech and Rudey filed exceptions and objections to the referee’s report pursuant to Practice Book §§ 439 and 440. On March 4, 1996, the trial court, after reviewing the attorney trial referee’s record and report, issued its memorandum of decision. In its decision, the trial court (1) accepted the attorney trial referee’s conclusion that Copper Beech, not Rudey, was the contracting party and hence a proper defendant, (2) accepted the attorney trial referee’s conclusion that Copper Beech did not exhibit bad faith as required to excuse or negate a violation of the Home Improvement Act, (3) rejected the attorney trial referee’s finding that the Copper Beech property was commercial in nature and, hence, his conclusion that TDS was exempt from the provisions of the Home Improvement Act, and (4) accepted the attorney trial referee’s conclusion that Copper Beech and Rudey failed to prove that TDS acted negligently in rendering its painting and restoration services. Accordingly, the trial court rendered judgment in favor of Copper Beech with respect to TDS’ complaint and in favor of TDS with regard to Copper Beech’s counterclaim, and rendered judgment in favor of TDS on Rudey’s complaint. TDS filed a motion to vacate, or in the alternative, to reconsider the trial court’s decision. Copper Beech and Rudey filed a motion to modify the decision. On April 12, 1996, the trial court issued a supplemental decision addressing the parties’ motions. In its supplemental order, the trial court denied TDS’ motion to vacate or for reconsideration and modified its original judgments to reflect TDS’ per se violation of CUTPA. This appeal followed.

I

APPEAL

TDS appeals from the trial court’s judgment rendered in favor of Copper Beech. On appeal, TDS claims that the trial court improperly (1) rejected the attorney trial referee’s finding that the Copper Beech property was commercial in nature, (2) refused to find that Copper Beech acted in bad faith and therefore refused to remand the case to the attorney trial referee to determine damages on its bad faith claim, and (3) reversed the referee’s report and findings and thereafter denied its motion for consideration without first granting it an opportunity to be heard. We reverse the judgments of the trial court.

A

TDS claims first that the trial court improperly rejected the attorney trial referee’s finding that the Copper Beech property was commercial in nature and, hence, his conclusion that TDS was exempt from the provisions of the Home Improvement Act. We agree.

Procedures before attorney state trial referees are governed by Practice Book § § 434 through 444. Attorney trial referees are empowered to hear and decide issues of fact. Spears v. Kerars Realty Co., 171 Conn. 699, 702-703, 372 A.2d 121 (1976). The trial court, as the reviewing authority, may render whatever judgment appropriately follows, as a matter of law, from the facts found by the attorney trial referee. Dills v. Enfield, 210 Conn. 705, 713, 557 A.2d 517 (1989).

In this case, the trial court concluded, based on the facts found by the referee, that the Copper Beech property was residential rental property, and hence the Home Improvement Act was applicable. Although it is well established that the trial court, as the reviewing authority, may render whatever judgment appropriately follows, as a matter of law, from the facts found by the attorney trial referee, a trial court cannot find additional facts or reject others unless a material fact has been found without evidence. Id., 713-14. Because the determination as to whether a particular property is commercial in nature for purposes of the “commercial exception” to the Home Improvement Act is a factual determination, and not a matter of law, we conclude that the trial court improperly invaded the referee’s fact-finding province. See Wilcox Trucking, Inc. v. Mansour Builders, Inc., 20 Conn. App. 420, 423, 567 A.2d 1250 (1989), cert. denied, 214 Conn. 804, 573 A.2d 318 (1990) (“reviewing authority may not substitute its findings for those of the trier of the facts”). Having concluded that the determination of the nature of the property was factual, we must determine on appeal whether the referee’s finding that the property was commercial in nature was clearly erroneous. Practice Book § 4061; Nor’easter Group, Inc. v. Colossale Concrete, Inc., 207 Conn. 468, 473, 542 A.2d 692 (1988). To determine whether the attorney trial referee’s finding was clearly erroneous, we must determine if it was supported by the evidence. If there is evidence to support it, the finding is not clearly erroneous. Stamford v. Kovac, 36 Conn. App. 270, 274-75, 650 A.2d 626 (1994).

In considering the nature of the property in question in this case, the attorney trial referee found that the testimony of Copper Beech’s witnesses made it clear that the entire property, including the main residence, was operated as a business venture. He found that Copper Beech elected to allow its shareholders and officers to utilize a valuable residence on the premises without consideration of its market value. He further found that the property was a corporate benefit extended to its shareholders and officers for corporate purposes, not unlike fringe benefits or other perquisites issued by corporations. In addition, he found that a large corporate staff and corporate equipment were utilized not only in tree farming activities but also in enhancing the residence for the private enjoyment of its shareholders, a benefit of considerable value that did not take the form of an ordinary dividend. The attorney trial referee found that the residence at issue was operated as an integral part of the business to which the entire property was devoted, notwithstanding that a conventional profit motive clearly did not drive the affairs of Copper Beech. Finally, the attorney trial referee found that improvements to the main residence enhanced the business of Copper Beech and that TDS was entitled to believe that it was dealing with a business enterprise. Accordingly, the referee determined that the provisions of the Home Improvement Act were not applicable.

On the basis of our review, we conclude that there is evidence to support the referee’s finding that the Copper Beech property was commercial in nature for purposes of the commercial exception to the Home Improvement Act. Applying the law to the referee’s findings, therefore, we conclude that the Home Improvement Act does not bar TDS’ recovery. As a result of that determination, the trial court’s finding of a violation of CUTPA must also be reversed. We must, therefore, remand the case to the trial court with direction to render judgment in accordance with the recommendations of the attorney trial referee.

B

TDS claims next that the trial court refused to determine that Copper Beech had acted in bad faith and therefore did not remand the case to the attorney trial referee to determine damages on its bad faith claim. TDS has waived this claim by failing to file a motion to correct any of the facts found by the referee and by failing to file any exceptions or objections to his report. See Practice Book §§ 438, 439, 440; Seal Audio, Inc. v. Bozak, Inc., 199 Conn. 496, 518, 508 A.2d 415 (1986).

C

TDS claims finally that the trial court improperly rejected the attorney trial referee’s report and findings and denied TDS’ motion for reconsideration without first granting it an opportunity to be heard. In light of our remand, we need not address this claim.

II

CROSS APPEAL

Copper Beech and Rudey cross appeal from the trial court’s decision rendering judgment in favor of TDS with regard to Copper Beech’s counterclaim, and with regard to Rudey’s complaint. They claim that the trial court improperly (1) determined that there was a sufficient basis in the evidence to support the referee’s conclusion that they failed to prove that the performance by TDS deviated from acceptable standards in the industry for paint removal, (2) refused to remand the case to the attorney trial referee for further proceedings to determine the alleged damages suffered by them due to the failure of TDS to comply with the Home Improvement Act and its resulting CUTPA violation, and (3) refused to conduct further proceedings to determine the appropriate award of attorney’s fees to be made to them in light of its finding that TDS had violated CUTPA. We determine that Copper Beech and Rudey cannot prevail on the cross appeal.

Copper Beech and Rudey claim first that the attorney trial referee and the trial court improperly concluded that they failed to prove that TDS deviated from acceptable standards in the industry for paint removal and, therefore, concluded that TDS was not hable for the lead contamination of the soil on the Copper Beech property. We are not persuaded.

The attorney trial referee found that Copper Beech and Rudey had not sustained their burden of proving that TDS had deviated from acceptable standards in the industry for paint removal. In making that determination, the referee heard testimony from Freitag, TDS’ foreman Chris Gaffney and Scott Teed of Classic Restorations to the effect that TDS took extensive precautions to contain the paint, dust and chips through the use of tarpaulins and other coverings. He also considered written communications from Freitag to Rudey that corroborated that TDS’ employees devoted considerable time to using tarps and cleaning up. Moreover, the referee considered that no witnesses provided evidence that precautions were taken in 1991 by painters that would have been more effective than those utilized by TDS, or that TDS did not use reasonable measures to control paint dust. On the basis of this evidence, the attorney trial referee found that “the evidence does not support the conclusion that the lead found in the soil following the TDS project was attributable to a breach by [TDS] of any contractual responsibility to [Copper Beech] arising out of the written agreements, or from a want of due care.”

After reviewing the transcript and testimony of the hearing, the trial court concluded that a sufficient, basis existed in the evidence to support the attorney trial referee’s findings and therefore concluded that judgment should be rendered for TDS on both Copper-Beech’s counterclaim and on Rudey’s complaint. We will not overturn these conclusions unless they are legally or logically inconsistent with the facts found. Bruno v. Civil Service Commission, 192 Conn. 335, 344, 472 A.2d 328 (1984); Romano v. Derby, 42 Conn. App. 624, 628, 681 A.2d 387 (1996). We conclude that the trial court properly accepted the attorney trial referee’s report as it applied to those claims.

Copper Beech’s and Rudey’s second and third claims on cross appeal involve claims that TDS violated CUTPA. Because we conclude that TDS is exempt from the provisions of the Home Improvement Act in this case, Copper Beech and Rudey cannot recover on the theory of a per se violation of CUTPA.

The judgments are reversed and the case is remanded with direction to render judgment consistent with the report of the attorney trial referee.

In this opinion the other judges concurred.

       It is undisputed in this case 1hat TDS was not registered as a home improvement contractor until October 31,1991, alter the dispute with Copper Beech arose.

         The attorney trial referee issued a report dated February 7, 1995. He also issued rulings on proposed findings of fact, and conclusions of law submitted by Copper Beach and Rudey dated February 7, 1995. The referee stated in the opening paragraph of his rulings, however, that “[r]ulings on each of the proposed findings and conclusions are set forth below, but the report rendered on this date provides clarification and explanation of these rulings and should be considered as incorporated in the following rulings by reference as appropriate.”

       TDS claimed that it was owed $33,925 for the extra services performed outside the scope of the written contract. The referee’s recommendation, excluding these extra services, was that TDS was entitled to recover under count one for the balance on its written agreements with Copper Beech in the total amount of $23,969.71.

       Because the trial court found that TDS’ actions had violated the Home Improvement Act, it was thus bound to render judgment for Copper Beech and Rudey on their CUTPA claims. See Woronecki v. Trappe, 228 Conn. 574, 579, 637 A.2d 783 (1994) (because plaintiffs actions violated Home Improvement Act, court bound to render judgment for defendant with respect to CUTPA count of counterclaim); A. Secondino & Son, Inc. v. LoRicco, 215 Conn. 336, 343, 576 A.2d 464 (1990) (concluding that failure to comply with Home Improvement Act “is a per se violation of CUTPA by virtue of General Statutes § 20-427 (b), which provides that any violation of the Home Improvement Act is deemed to be an unfair or deceptive trade practice”).

       In the first case, the trial court rendered judgment for Copper Beech on TDS’ complaint, for TDS on counts one through three of Copper Beech’s counterclaims, and for Copper Beech on count four of its counterclaim. The court then ruled that TDS recover of Copper Beech $0 damages and $0 costs, taxed at $0, and that Copper Beech recover of TDS $0 damages and $0 costs, taxed at $0.
      In the second case, the trial court rendered judgment for Rudey on counts one through three and for TDS on count four. The court then ruled that Rudey recover of TDS $0 damages and $0 costs, taxed at $0.

       General Statutes § 20-419 (4)providesinpertinentpart: “ ‘Home improvement’ does not include . . . (C) the sale of goods or services furnished for commercial or business use or for resale . . . .”

       See Public Acts 1993, No. 93-215, § 2, expanding the definition of home improvement in the Home Improvement Act to include work performed on residential rental property.

       See generally Stamford v. Kovac, 229 Conn. 627, 630-31, 642 A.2d 1190 (1994), discussing a party’s right under Practice Book § 442 to a reasonable opportunity to be heard on its objections and exceptions to the report, of an attorney trial referee.

       We note that the practical effect of reversing the trial court’s judgments on the CUTPA claims is negligible given the trial court’s conclusion that Copper Beech and Rudey did not suffer any damages by virtue of TDS’ CUTPA violations.


author: FREEDMAN, J.

text:
    STATE OF CONNECTICUT v. MANUEL ABREU
    (AC 15536)
    Dupont, C. J., and Foti and Freedman, Js.
    Argued March 5
    officially released July 22, 1997

      John Serrano, for the appellant (defendant).

      Leon F. Dalbec, Jr., assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and George Ferko, assistant state’s attorney, for the appellee (state).
   Opinion

FREEDMAN, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of attempt to commit sexual assault in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-70 (a) (l), sexual assault in the third degree in violation of General Statutes § 53a-72a (a) (1) (A), and two counts of risk of injury to a child in violation of General Statutes § 53-21. On appeal, the defendant claims that the trial court improperly (1) precluded him from contending, during closing argument, that the victim’s testimony on the issue of penetration was substantially and materially inconsistent with a prior statement made by the victim, and (2) prohibited him from introducing testimony from the victim’s foster mother concerning the events leading up to the day the victim ran away from her foster home. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In late fall, 1994, the fifteen year old victim resided with her foster mother, Publia Gonzalez, and two other foster children in a two-story condominium in Hartford. The defendant, who was Gonzalez’ boyfriend at the time, would sometimes come to the condominium. In September or October of 1994, when the victim was in the kitchen of the condominium, the defendant intentionally and inappropriately touched her buttocks. After the defendant touched her, the victim turned around to ask the defendant what he was doing, and he told her to be quiet.

On a subsequent occasion, the defendant came to the condominium in an intoxicated state. He proceeded to rub his penis through his pants, while occasionally looking at the victim. This lasted for approximately twenty minutes. Gonzalez’ niece, Glenda Robles, was present on that occasion. When Robles indicated that she had to leave, the victim indicated that she was afraid, and Robles took the victim home with her.

A few weeks later, the victim was upstairs reading in her bedroom. The defendant came into the room, knelt down on his knees, pulled the victim’s pants down, and tried to put his penis into her vagina. The defendant’s erect penis was exposed. The victim tried to keep her knees closed while that was occurring. Although the victim could feel the defendant’s penis touch her, the defendant was unable to penetrate her. During that incident, the victim, who was scared and crying, yelled at the defendant to get off of her. The defendant told the victim to “shut up” and that if she told anyone what had happened, she would not be believed. He stated, “I don’t know why you’re going to waste your time,” and then left the room.

In early November, 1994, the victim was sitting on the floor in the living room of the condominium watching television when the defendant sat down on the couch behind her. The defendant grabbed the victim’s right hand and pulled it behind her to where he was sitting. The victim then felt the defendant’s penis in her hand. The defendant made the victim move her hand up and down as she held his penis, and the defendant briefly touched the victim’s breasts over her clothing. The defendant then pulled the victim’s hair, causing her pain. The victim did not struggle to get away from the defendant because she was afraid that if she did the defendant would pull her hair harder. The defendant told the victim, “If you tell anyone, nobody is going to believe you.” He also told the victim, “If you tell anyone, you’re going to see what’s going to happen.” Following that incident, the victim ran away from her foster mother’s home because she was afraid of the defendant.

I

The defendant first argues that the trial court improperly prohibited him from arguing, during closing argument, that the victim’s testimony on the issue of penetration was materially inconsistent with a prior statement made by the victim. The defendant further argues that by so ruling, the trial court infringed on his federal and state constitutional rights.

Some additional facts are necessary to resolve this issue. On direct examination, the victim testified that the defendant did not penetrate her during the attempted sexual assault in her bedroom. On cross-examination, defense counsel questioned the victim about what she had told various workers from the department of children and families (DCF) about that incident. Specifically, in response to a question by defense counsel, the victim responded that she did not recall having told any of the people from DCF that the defendant had been successful in having sex with her. On redirect examination, the victim again stated that she did not recall ever telling anyone that the defendant had penetrated her. Finally, on recross-examination, the victim stated that she never told anyone that the defendant had penetrated her.

The state also presented the testimony of Donna Davies, a DCF investigator who interviewed the victim on December 12, 1994. On direct examination, Davies testified that during that interview, she questioned the victim about the incident with the defendant in the victim’s bedroom. With regard to that incident, Davies testified that “[the victim] did not specifically state that she was penetrated.” Davies reiterated that when questioned on cross-examination. Finally, Davies again indicated on re-direct examination that the victim never explicitly or specifically mentioned that the defendant had penetrated her vagina. Davies stated, however, that she did not ask the victim those types of questions.

After the state rested, the defense presented the testimony of Kim Clarke, a social work supervisor for DCF. Clarke, along with social worker Leroy Muldrow, interviewed the victim after the victim reported to Muldrow that she had been sexually abused in her foster home. With regard to the incident in the victim’s bedroom, Clarke testified that her conclusion after interviewing the victim was that the defendant had penetrated the victim. On cross-examination, however, Clarke admitted that her notes of the interview with the victim were of her interpretation of what the victim had said, and that the victim never said that the defendant had penetrated her.

Following a charging conference, the trial court, on the record, indicated that it would allow the defendant to argue during closing argument a number of “alleged inconsistencies” between the victim’s trial testimony and statements that she made to others. The trial court, however, disallowed defense counsel from arguing that the victim’s statements were inconsistent with regard to whether the defendant had penetrated her during the incident in the victim’s bedroom. In so ruling, the court first reviewed the testimony of Clarke, and noted that her testimony was of her interpretation of the victim’s statements. The court stated that “ [interpretations by a listener do not constitute the declaration of an inconsistency.” The court further stated that evidence of any inconsistency was lacking and that to allow the defendant to argue such an inconsistency would be to ask the jury to speculate.

The defendant argues that the trial court impermissibly invaded the province of the jury when it concluded that the victim had not told Clarke that the defendant had penetrated her. The state counters by claiming that the defendant failed to demonstrate that the victim’s trial testimony and the prior statement to Clarke were substantially and materially inconsistent. The state further argues that because the defendant failed to demonstrate that the victim’s statements were inconsistent on the issue of penetration, the court exercised proper discretion in prohibiting closing argument on this issue. We agree with the state.

A

We first consider whether the trial court correctly concluded that victim’s trial testimony was not substantially and materially inconsistent with the prior statement that she made to Clarke. We begin by noting that “[w]hile it is clearly proper to attack a witness’ credibility by evidence of his materially inconsistent statements . . . this can only be done if the court is satisfied that the prior statements are in fact inconsistent. ... In determining whether an inconsistency actually exists, the testimony of the witness as a whole, or the whole impression or effect of what has been said, must be examined.” (Citations omitted; internal quotation marks omitted.) State v. Williams, 220 Conn. 385, 395, 599 A.2d 1053 (1991). Moreover, “[s]ince the purpose of such evidence is to induce the tribunal to discard the one statement because the witness has also made another statement which cannot at the same time be true . . . the inconsistency must be substantial and relate to a material matter.” (Citation omitted; internal quotation marks omitted.) State v. Richardson, 214 Conn. 752, 763-64, 574 A.2d 182 (1990). “[Statements from which a possible inference of inconsistency may be drawn are insufficient for the purpose of impeachment.” Id., 764.

We agree with the conclusion of the trial court that the victim’s prior statement to Clarke was not substantially and materially inconsistent with the victim’s testimony at trial. In both the statement to Clarke and her testimony at trial, the victim described how the defendant “attempted” to have sexual intercourse with her. The victim testified at trial that she never told anyone that the defendant had penetrated her and Clarke testified that the victim never used the word “penetration.” Although Clarke interpreted the victim’s statement to mean that the defendant had penetrated the victim, the trial court correctly noted that Clarke’s interpretation does not constitute a substantial or material inconsistent statement of the victim.

B

Having concluded that the victim’s trial testimony was not substantially and materially inconsistent with the prior statement given to Clarke, we next consider whether the trial court, in not allowing the defendant to argue such an inconsistency to the jury during closing argument, impermissibly invaded the province of the jury-

We begin by noting that “[c]ounsel may comment upon facts properly in evidence and upon reasonable inferences to be drawn from them. . . . Counsel may not, however, comment on or suggest an inference from facts not in evidence. . . . Even if the trial court admits incompetent evidence, it may be relied on in argument, and alone or in part may support a verdict or finding.” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Arline, 223 Conn. 52, 58-59, 612 A.2d 755 (1992).

“In general, the scope of final argument lies within the sound discretion of the court . . . subject to appropriate constitutional limitations. ... It is within the discretion of the trial court to limit the scope of final argument to prevent comment on facts that are not properly in evidence, to prevent the jury from considering matters in the realm of speculation and to prevent the jury from being influenced by improper matter that might prejudice its deliberations.” (Citations omitted; emphasis added; internal quotation marks omitted.) Id., 59-60.

In the present case, after the trial court concluded that the victim’s trial testimony was not inconsistent with the prior statement that she made to Clarke, it properly exercised its discretion in prohibiting closing argument on this issue. If the trial court had allowed the jury to consider such an inconsistency, the jury then would have been allowed to consider matters within the realm of speculation. The trial court therefore properly prevented defense counsel from arguing this matter to the jury.

II

The defendant next argues that the trial court improperly refused to admit testimony by the victim’s foster mother, Gonzalez, concerning events leading up to a confrontation between the victim and Gonzalez on the day the victim ran away. The defendant argues that this ruling by the trial court infringed on his federal and state constitutional rights to confront witnesses and to present a defense. We disagree.

The following additional facts are necessary to resolve this issue. On cross-examination, the victim admitted that she spoke to her social worker, Muldrow, the same day that she ran away from the foster home, and that she did not tell Muldrow about the alleged incidents with the defendant. The victim testified that she told Muldrow and Clarke about the incidents after she ran away, and that she remembered telling them that she was afraid to tell anyone about the incidents before that time. The victim also testified that she told Muldrow and Clarke that she was afraid to tell Gonzalez about the incidents because Gonzalez would not believe her. The victim admitted that Gonzalez had previously caught her in lies regarding the victim’s attendance at school.

After the state rested, the defendant made an offer of proof regarding the testimony of Gonzalez. Specifically, the defendant sought to have Gonzalez testify that (1) the victim was suspended from school, (2) Gonzalez subsequently learned of the suspension, (3) Gonzalez confronted the victim and contacted Muldrow, (4) the victim spoke with Muldrow, and (5) later that same day the victim ran away from the foster home. According to the defendant, the proscribed testimony would have provided the jury with a fuller picture of the events precipitating the victim’s running away, and would have presented the jury with an alternative reason for the victim to have run away. According to the defendant, this testimony also would have gone to the victim’s possible motive or interest in making accusations about Gonzalez’ boyfriend. The trial court refused to allow this testimony, stating that the questions about the victim’s suspension from school were “collateral, irrelevant, and ... an effort to discredit the character of the . . . victim in front of the juiy.”

We begin by noting that although the defendant argues that the trial court’s ruling denied him his constitutional rights to confront witnesses and to present a defense, the trial court’s ruling was evidentiary in nature. “Every evidentiary ruling which denies a defendant a line of inquiry to which he thinks he is entitled is not constitutional error. In this instance, the defendant has put a constitutional tag on a nonconstitutional claim.” (Internal quotation marks omitted.) State v. Moales, 41 Conn. App. 817, 824, 678 A.2d 500, cert. denied, 239 Conn. 817, 682 A.2d 1011 (1996). “The trial court has broad discretion in ruling on the admissibility of evidence. . . . The determination of the relevancy and remoteness of evidence is within the sound discretion of the trial court. . . . This court will not disturb the trial court’s ruling on evidence unless a clear abuse of discretion is shown.” (Citations omitted; internal quotation marks omitted.) State v. Miller, 202 Conn. 463, 482, 522 A.2d 249 (1987).

On the basis of the record before us, we conclude that the trial court did not abuse its discretion when it refused to allow this testimony of Gonzalez. The defendant argues that although the trial court allowed him to elicit from the victim that she lied to Gonzalez about being suspended, the court denied him the opportunity to attempt to prove the more significant facts that the confrontation about the suspension culminated in Gonzalez’ calling DCF and the victim’s running away that day. We agree with the state, however, that the court precluded the defendant from presenting evidence regarding only the specifics of the lie. Gonzalez did in fact testify that the victim left the house on the same day that Gonzalez discussed the school suspension with the victim. We also agree that the facts underlying the victim’s lie to Gonzalez were collateral to the issue of whether the defendant was guilty of the crimes charged, and were prejudicial to the credibility of the victim.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-49 (a) provides in relevant part: “A person is guilty of attempt to commit a crime if, acting with the kind of mental state required for commission of the crime, he . . . (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.”
      General Statutes (Rev. to 1993) § 53a-70 (a) provides in relevant part: “A person is guilty of sexual assault in the first degree when such person (1) compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person . . . .”

       General Statutes § 53a-72a (a) provides in relevant part: “A person is guilty of sexual assault in the third degree when such person (1) compels another person to submit to sexual contact (A) by the use of force against such other person or a third person

       General Statutes (Rev. to 1993) § 53-21 provides: “Any person who wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its life or limb is endangered, or its health is likely to be injured, or its morals likely to be impaired, or does any act likely to impair the health or morals of any such child, shall be fined not more than five hundred dollars or imprisoned not more than ten years or both.”

       Withregard to thatincident, as well as the previous incidentthat occurred in the kitchen, the trial court charged the jury that it could not find the defendant guilty of the crimes charged on the basis of the evidence of those incidents. The court charged that the evidence was being admitted to show the defendant’s general intent, any motive the defendant may have had and whether the defendant’s conduct evinced a pattern of criminal activity.

       The victim testified that the defendant was unable to pull her pants all the way down because she was struggling, but he did get them down “far enough to expose [her] private areas.”

       The transcript reveals the following:
      “Q. The incident that you described that [the victim] explained to you that she said occurred in the bedroom, do you recall that she indicated to you that [the defendant] tried to penetrate her or that he did penetrate her?
      “A. What she indicated in her statement to me was that he had tried to put it in a couple of times. She did not clearly state to me that she was penetrated.”
      When aslced to check her notes of the interview, Davies stated: “You’re talking about the paragraph on page two, which I’m reading right now. What she stated and what my notes state is that he pushed his penis into her a few times. That does not—I am not indicating that it was into her vagina. She indicated to me that she was trying to hold her pants on, that she was trying to keep her legs together, and that he was pushing into her. Now, I did not use anatomical drawings or dolls to clarify exactly what she meant as far as how far his penis went. I do know that her pants were down, that his pants were down, and his penis was out, from her description to me.”

       The transcript reveals 1he following:
      “Q. In regard to the bedroom incident, did she indicate whether or not [the defendant] actually penetrated her?
      “A. Based on what I recall, it sounded like he did penetrate her, based on what I recall. Her words were that he inserted his penis into her a couple of times. And I interpret that to mean penetrate. She didn’t use the word ‘penetrate.’ ”

       The transcript reveals the following:
      “Q. Okay. And when yoti interviewed [the victim] on December 5, you indicated that—I believe your words were that you were interpreting what she had said. That was your interpretation of what she had said?
      “A. Correct. We have a criteria for basically different types of sexual abuse and they fit in a couple of different categories. And, based on her words, yes, I interpreted. I guess you could call it that.
      "Q. So when you were doing your report, it was more or less a summary of what she had said.
      “A. I tried to be as specific as possible, as specific as what I had on my scrap piece of paper.
      “Q. Okay. And based on . . .
      “A. But I did some summarizing.
      “Q. Based on your notes and what you recall from the interview, that’s how you were filling out your report.
      “A. Yes.

        “Q. I think you also said—did she actually use the word ‘inserted into’? Do you remember her using those exact words or was it ‘pushed into’ or ‘into’?
      “A. I thought it was ‘put into.’
      “Q. ‘Put into’?
      “A. Yes. I think that was what she used.
      “Q. And based on that, did you interpret that to mean penetration?
      “A. Yes.
      “Q. Okay. Have you ever used the expression that you bumped into someone in the morning? I bumped into Leroy this morning?
      “A. Yes.
      “Q. Do you mean penetration—when you used that expression, did you mean penetration?
      “A. Bumped into? No.
      “Q. Okay. And if I were to take my pencil and push it into the side of the desk, does that mean I’m penetrating the desk?
      “A. No.
      * ** *
      “Q. Okay. And I believe you did testify earlier that what she told you was that he attempted to have sexual intercourse with her. Do you remember that?
      “A. Yes. Those were her words.
      * * *
      “Q. Okay. And I believe you also testified that it sounded like he—from your—based on your conversation, it sounded like he penetrated her, but she never used the word ‘penetration,’ did she?
      “A. No, she did not.”

       The trial court stated: “Kim Clarke, in response to [defense counsel’s] questions later conceded that [the victim] had never used the words that he inserted his penis into her. But, she somewhat recalled again, not with a great deal of certainty, that [the victim] may have said “put into.’ Now, the next question that the court raises, but these questions were not asked as a follow-up by either side: Put into what? The sexual assault statute defines sexual intercourse as penetration into the vaginal, to the vagina, into the genital area, and also into the anal opening or the genital opening, I’m sorry. So that there are three vaults by which penetration may occur which constitutes sexual intercourse. We have none of that here.
      “The court concludes that in this instance, Kim Clarke made an inaccurate and incorrect leap of faith. In addition, the victim testified that she is still a virgin. She found no blood on the bed after the alleged incident. The victim herself testified that there was no penetration. The court concludes that the evidence of any inconsistency is lacking. And to argue inconsistency would be to ask the jury to speculate, at best. The evidence further indicates that the clearest statement that Kim Clarke made on cross-examination was, and I quote ‘I thought’—she’s not even certain—T thought she said put into.’ Again, the court raises the question: Put into what? The genital area?”

       The transcript reveals the following:
      “Q. Do you recall if you told them that you were afraid [Gonzalez] wouldn’t believe you?
      “A. Yes.
      “Q. Why did you think [Gonzalez] wouldn’t believe you?
      “A. Because he’s her boyfriend and I’m just a foster kid.
      “Q. Were (here any other reasons why you think [Gonzalez] would not have believed you?
      “A. No.
      “Q. Had she ever caught you in any lies?
      “A. Yes.
      * ** *
      “Q. Had you lied to [Gonzalez] about attending school?
      “A. Yes.
      “Q. And what was that about?

        “A. That I would skip class.
      “Q. Did you lie to [Gonzalez] about being suspended from school?
      “A. Yes.
      “Q. When you were suspended, would you leave [Gonzalez’] house as if you were going to school and spend the day someplace and then come home in the afternoon?
      “A. Yes.
      “Q. Was the fact that you had lied to [Gonzalez] part of the reason why you were afraid [she] would not believe you if you told her about [the defendant] bothering you?
      “A. Yes.”


author: LANDAU, J. SPEAR, J.,

text:
    WILLINGTON EDUCATION ASSOCIATION v. BOARD OF EDUCATION OF THE TOWN OF WILLINGTON
    (AC 16140)
    Landau, Schaller and Spear, Js.
    Submitted on briefs March 6
    officially released July 22, 1997

      William J. Dolan filed a brief for the appellant (plaintiff).

      Donald W. Strickland and Richard F. Vitarelli filed a brief for the appellee (defendant).
   Opinion

LANDAU, J.

The plaintiff, Willington Education Association (union), appeals from the judgment, rendered after a trial to the court, denying its application to correct an arbitration award. On appeal, the union claims that the trial court improperly permitted language in the award to remain that exceeded the scope of the submission to the arbitrator. We affirm the judgment of the trial court.

The following facts are necessary for the resolution of this appeal. The union and the defendant board of education (board) are parties to a collective bargaining agreement (agreement) that provides that, before there is any change in the health insurance carrier, format or coverage, the board is required to give the union an opportunity to review the proposed changes. The agreement further provides that, if the parties cannot agree on the proposed changes, those changes are to be submitted to binding arbitration before an impartial arbitrator with expertise in insurance.

Upon reaching an impasse regarding the proposed changes to the health insurance plan, the parties submitted the following disputed issue for resolution to the arbitrator: “Whether the ConnectiCare Point of Service and HMO insurance coverage proposed by the [board] is substantially equivalent to the criteria for insurance coverage set forth in Article 18.A in terms of benefits, coverage and administration.” On November 27, 1995, the arbitrator issued the following award: “The Connecticut Point of Service and HMO insurance coverage proposed by the [board] is substantially equivalent to the criteria for insurance coverage set forth in Article 18.A in terms of benefits, coverage and administration with the exception of choice of providers and costshare provisions for dependents residing out of state. The [b]oard can achieve equivalency if it provides out of state benefits at the in-network rate for dependents residing out of state within 60 days.” (Emphasis added.)

After the board announced its intention to comply with the arbitrator’s decision of equivalency concerning out-of-state dependents and that a change to ConnectiCare was planned, the union filed an application to correct the award pursuant to General Statutes § 52-419. The union requested that the second sentence of the award be deleted because it is outside the scope of the submission to the arbitrator. The trial court denied the union’s application to correct the award. This appeal followed.

The scope of an arbitrator’s powers are well established. “The parties themselves, by the agreement of submission, define the power of the arbitrator. . . . The submission constitutes the charter of the entire arbitration proceedings and defines and limits the issues to be decided. . . . When the parties have agreed to a procedure, and have delineated the authority of the arbitrator, they must be bound by those limits .... An application to vacate or correct the award should be granted where an arbitrator has exceeded his power. In deciding whether an arbitrator has exceeded his power, [the court] need only examine the submission and the award to determine whether the award conforms to the submission. . . . Bic Pen Corp. v. Local No. 134, 183 Conn. 579, 583-84, 440 A.2d 774 (1981). As noted, [i]n determining whether a submission is unrestricted, we look to the authority of the arbitrator. Fraulo v. Gabelli, 37 Conn. App. 708, 715, 657 A.2d 704 (1995). The authority of an arbitrator to adjudicate the controversy is limited only if the agreement contains express language restricting the breadth of issues, reserving explicit rights, or conditioning the award on court review. In the absence of any such qualifications, an agreement is unrestricted. Garrity v. McCaskey, 223 Conn. 1, 5, 612 A.2d 742 (1992); International Assn. of Firefighters, Local 1339, AFL-CIO v. Waterbury, 35 Conn. App. 775, 778, 647 A.2d 361 (1994). When parties mutually agree to submit their dispute to arbitration, judicial review is limited in scope and the resulting award is not reviewable for errors of law or fact. See Hartford v. Board of Mediation & Arbitration, 211 Conn. 7, 14, 557 A.2d 1236 (1989); New Haven v. AFS- CME, Council 15, Local 530, 208 Conn. 411, 415-16, 544 A.2d 186 (1988); Greater Bridgeport Transit District v. Amalgamated Transit Union, Local 1336, 28 Conn. App. 337, 343, 610 A.2d 1324 (1992).” (Internal quotation marks omitted.) Steiner v. Middlesex Mutual Assurance Co., 44 Conn. App. 415, 424-25, 689 A.2d 1154 (1997).

An arbitration award may be modified or corrected, however, if the award violates any one or more of the proscriptions in § 52-419. Section 52-419 (a) provides: “Upon the application of any party to an arbitration, the superior court for the judicial district in which one of the parties resides or, in a controversy concerning land, for the judicial district in which the land is situated, or, when the court is not in session, any judge thereof, shall make an order modifying or correcting the award if it finds any of the following defects: (1) If there has been an evident material miscalculation of figures or an evident material mistake in the description of any person, thing or property referred to in the award; (2) if the arbitrators have awarded upon a matter not submitted to them unless it is a matter not affecting the merits of the decision upon the matters submitted; or (3) if the award is imperfect in matter of form not affecting the merits of the controversy.” In the present case, the union argues, pursuant to § 52-419 (a) (2), that the arbitrator’s award exceeded the scope of the submission.

We note that “[s]ince the parties consent to arbitration, and have full control over the issues to be arbitrated, a court will make every reasonable presumption in favor of the arbitration award .... The party challenging the award bears the burden of producing evidence sufficient to invalidate or avoid it, and only upon a showing that it falls within the proscriptions of [§ 52-419] ... or procedurally violates the parties’ agreement will the determination of an arbitrator be subject to judicial inquiry. O & G/O’Connell Joint Venture v. Chase Family Ltd. Partnership No. 3, 203 Conn. 133, 145-46, 523 A.2d 1271 (1987); Malecki v. Burnham, 181 Conn. 211, 214, 435 A.2d 13 (1980).” (Internal quotation marks omitted.) Steiner v. Middlesex Mutual Assurance Co., supra, 44 Conn. App. 425.

Because the submission in this case contained no limiting or conditional language, it was unrestricted. See Bic Pen Corp. v. Local No. 134, supra, 183 Conn. 584-85; Bridgeport v. Bridgeport Police Local 1159, 183 Conn. 102, 107, 438 A.2d 1171 (1981); Board of Education v. Waterbury Teachers Assn., 2 Conn. App. 346, 348, 478 A.2d 616 (1984). Making every reasonable presumption in favor of the arbitrator’s award, as we are required to do, the plaintiff has failed to sustain its burden to warrant judicial inquiry. O & G/O’Connell Joint Venture v. Chase Family Ltd. Partnership No. 3, supra, 203 Conn. 145-46. Because the two sentences of the arbitrator’s award answered the submission agreed to by the parties, we conclude that the arbitrator did not exceed her authority as defined by the submission. Bic Pen Corp. v. Local No. 134, supra, 585. The trial court properly denied the union’s application to correct the award.

The judgment is affirmed.

In this opinion SCHALLER, J., concurred.

SPEAR, J.,

concurring. I agree with the result reached by the majority, but I disagree that the award answered the unrestricted submission agreed to by the parties. I view the award as going beyond the submission. Rather than stating clearly and unequivocally whether the proposed insurance coverage is substantially equivalent to the article 18.A criteria, the arbitrator used the second sentence of the award to state how such equivalency could be achieved.

The issue in this case is similar to that in Local 1078 v. Anaconda American Brass Co., 149 Conn. 687, 183 A.2d 623 (1962). In that case, the question submitted to the arbitrator was: “ ‘Under the terms of the applicable Collective Bargaining Agreement is the Company’s present operating practice ... in violation of Article VI, Section 9?’ ” (Emphasis added.) Id., 689. The arbitrator awarded as follows: “ ‘The Company’s present operating practice . . . does not violate Article VI, Section 9 so long as the work involved does not occupy the major portion of the foreman’s time.’ ” Id., 689. The court stated that “[i]t is a truism frequently stated by this court that the charter of an arbitrator is the submission, and no matter outside the submission may be included in the award. The basic test of the validity of an award lies in its conformity to the terms of the submission.” Id., 689-90. The Supreme Court affirmed the trial court’s vacatur of the award because the arbitrator was not asked to give an opinion to guide future operations. “The arbitrator not only answered the question submitted but he also defined a course of conduct which could be followed in the future.” Id., 690. The award exceeded the scope of the submission and could not be upheld. As in Local 1078, the arbitrator here exceeded her authority by including a future course of action that would make the proposed coverage substantially equivalent to the criteria.

I agree, however, that the trial court properly denied the union’s application. The union did not apply to vacate the award. Instead, it filed an application to correct the award. An application to correct should be granted only where “ ‘by so doing, the merits of the portion of the award which is within the submission are not affected.’ ” Waterbury Construction Co. v. Board of Education, 189 Conn. 560, 564, 457 A.2d 310 (1983). Striking the second sentence would affect the merits of the award because the proposed coverage would be substantially equivalent to the article 18.A criteria only if the board took the action recommended in that sentence. Accordingly, I would affirm the judgment of the trial court.

       The union also requested a stay pending the final disposition of the application.

       The second sentence of the award states how the board can achieve “equivalency,” not “substantial equivalency.” It is clear from the first sen-fence of the award that the proposed coverage is not substantially equivalent to the article 18.A criteria in the respects mentioned in the second sentence, therefore, the arbitrator’s use of the word “equivalency” in the second sentence obviously means “substantial equivalency.”