author: DUPONT, C. J.

text:
    STATE OF CONNECTICUT v. ANDREW J. LEDUC
    (14304)
    Dupont, C. J., and Iieiman and Hennessy, Js.

      Argued September 12, 1995
    decision released January 2, 1996

      Michael R. Hasse, with whom, on the brief, was Richard T. Miller, certified legal intern, for the appellant (defendant).

      JohnP. Gravalec-Pannone, assistant state’s attorney, with whom, on the brief, was Kevin T. Kane, state’s attorney, for the appellee (state).

       January 2,1996, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes.

   DUPONT, C. J.

The defendant appeals from the judgment of conviction, following a jury trial, of sexual assault in the first degree pursuant to General Statutes § 53a-70 (a) (2) and risk of injury to or impairing the morals of a child pursuant to General Statutes § 53-21. On appeal, the defendant claims that (1) the evidence was not sufficient to support the jury’s verdict of guilty and (2) the trial court improperly refused to conduct an in camera inspection of confidential records maintained by the department of children and families (DCF).

The jury heard evidence from which they reasonably could have found the following facts. The defendant was involved in a dissolution of marriage action that included a dispute about custody of his children when the facts underlying the conviction are alleged to have occurred. The defendant had weekend visitation rights with his daughter, the victim, born July 20, 1988, and his son. He would pick up the children on Friday evenings and return them to their mother on Sunday.

Around June 12, 1992, the victim’s mother noticed behavioral changes in the victim. The victim reported to her mother and grandmother that the defendant had put his finger in her “lucy,” the word by which the victim referred to her vagina, that it hurt, and that he would not stop. She also described this assault to a friend of her mother.

After confronting the defendant, who denied the accusations, the victim’s mother took her to a counselor at ABC, a private counseling agency, who treated her once a week for symptoms relating to being sexually abused. Counseling for the victim began in March, 1993, and continued to the time of trial. While in counseling, the victim disclosed the incident she had previously described to her mother and grandmother, and the counselor reported the case to DCF. After investigating the claim, DCF closed its file without further action. The counselor again reported the matter to DCF because she felt DCF did not properly investigate the first claim. The second investigation was concluded without further action. On August 6, 1993, the victim’s mother filed a complaint with the Norwich police department. Following an investigation, the defendant was arrested. The information charged that on “diverse dates June 12, 1992, through February 28, 1993 ... he [had] engaged in sexual intercourse with the victim ... by penetrating her vagina with his finger.”

During the trial, the victim and several constancy of accusation witnesses testified. The victim testified that her father had put his finger in her “lucy,” that his touch hurt, and that he would not stop. Although she did not identify the defendant in the courtroom as the person who assaulted her, she stated that “Uncle Andy” committed this act. Several witnesses testified that the victim referred to her father as “Uncle Andy.” The jury returned a verdict of guilty of both crimes with which the defendant was charged. The trial court sentenced the defendant to eight years in prison, suspended after five years, and four years of probation.

I

SUFFICIENCY OF THE EVIDENCE

The defendant argues that the evidence was insufficient for the jury to find the defendant guilty beyond a reasonable doubt because the victim did not make an in-court identification of the defendant as the perpetrator. “ ‘When a claim on appeal challenges the sufficiency of the evidence, we undertake a two part task. We first review the evidence presented at trial, construing it in the light most favorable to sustaining the jury’s verdict. We then determine whether, upon the facts thus established and the inferences reasonably drawn therefrom, the jury could reasonably have concluded that the cumulative effect of the evidence established guilt beyond a reasonable doubt.’ [State v. Simino, 200 Conn. 113, 116-17, 509 A.2d 1039 (1986)].” State v. Summerville, 13 Conn. App. 175, 184-85, 535 A.2d 818 (1988).

Several witnesses corroborated the victim’s account of the incident to which she testified. Although the victim, who was six years old at the time of trial, testified that her assailant was not in the courtroom, the record indicates that the defendant had gained weight, had changed his hairstyle, and had shaved his mous-tache since the victim had last seen him. The victim testified that the assault occurred in a brick building and that her “Uncle Andy” had committed the act. The defendant admitted to living in a brick building at the time of the incident, and several witnesses testified that the victim referred to him as “Uncle Andy.”

The defendant argues that the victim’s testimony fails to establish guilt because she stated that the perpetrator was not in the courtroom and, therefore, the jury must have improperly used the constancy of accusation witnesses’ testimony for the truth of the matter asserted. Although the hearsay rule generally bars prior consistent statements if sought to be used for the truth of the matter asserted, several exceptions exist. State v. Hamer, 188 Conn. 562, 564, 452 A.2d 313 (1982). In sex-related criminal cases, witnesses may recount the details of statements made by the victim that relate the particulars of the incident. Id., 564-65. The statements are admitted to corroborate the victim’s testimony by showing constancy of accusation, but cannot be used to prove the truth of the matter asserted. Id.

The jury may, however, consider other testimony of a witness that is unrelated to constancy of accusation as long as it does not fall within the category of hearsay. In other words, a wdtness who testifies in order to corroborate a victim’s accusations under this exception may testify about other matters, and the jury is not precluded from considering this testimony. In addition to testifying about prior consistent statements made by the victim, several witnesses testified that the victim referred to her father, the defendant, as “Uncle Andy.” This testimony could be considered by the jury and does not fall within the definition of hearsay because these statements were not used to prove that the defendant’s name was in fact Uncle Andy, but rather to show the name that the victim used to refer to the defendant. Statements that are not used to prove the truth of the matter asserted are not hearsay. State v. Cruz, 212 Conn. 351, 357, 562 A.2d 1071 (1989).

Looking at the evidence in the light most favorable to sustaining the verdict, we conclude that the jury reasonably could have identified the defendant as the perpetrator, and could have found guilt beyond a reasonable doubt based on the evidence presented by the state.

II

NECESSITY OF IN CAMERA INSPECTION

The defendant next argues that he had a due process right under the fourteenth amendment to the United States constitution to an in camera inspection of two DCF files to determine whether exculpatory information existed. He does not claim the right to the inspection because of his right to confrontation of witnesses under the sixth amendment to the United States constitution.

The defendant subpoenaed Theresa Bohara, a DCF investigator, and all DCF records of the two investigations relating to the accusations made against the defendant. On direct examination, the defendant solicited background information from the witness, but when the defendant asked the witness about the conclusions she had drawn from her investigation, the state’s attorney objected, and the trial court sustained the objection. During the discussion of the objection, the defendant requested an in camera inspection of DCF records because he believed that exculpatory evidence might exist. The trial court denied the request for an in camera review.

Although Connecticut courts have often addressed the issue of when an in camera inspection of records is required if there is a confrontation claim, and have recognized a due process right to an in camera inspection in dicta, they have never squarely addressed the issues of this case. See State v. Kulmac, 230 Conn. 43, 58, 644 A.2d 887 (1994); State v. Harris, 227 Conn. 751, 764, 631 A.2d 309 (1993); State v. Howard, 221 Conn. 447, 457-58, 604 A.2d 1294 (1992); State v. Simms, 201 Conn. 395, 405 n.8, 518 A.2d 35 (1986); State v. Jaynes, 36 Conn. App. 417, 420, 650 A.2d 1261 (1994), cert. denied, 223 Conn. 908, 658 A.2d 980 (1995).

These issues are (1) whether, under any circumstances, the confidentiality of the records of DCF may be breached given the language of § 17a-28 and existing case law, and (2) whether, if the statutory privilege is qualified, thereby allowing an in camera inspection in some instances, the defendant has a due process right, after a showing sufficient for his particular need, to require the court to make an inspection for exculpatory material.

A

The Nature of the Privilege

We must first decide whether the records of DCF are absolutely privileged by the confidentiality provisions of § 17a-28 or conditionally privileged. The case of State v. Kulmac, supra, 230 Conn. 43, summarily determines that the records of DCF are subject to a qualified privilege by flatly stating that § 17a-28 (b) expresses “a broad legislative declaration of confidentiality” but that a defendant’s right to confrontation “prevents such confidentiality from being unconditional.” Id., 57. The case, therefore, recognizes that the statutory privilege is not absolute but, rather, is qualified. The only other Connecticut case dealing solely with the confidentiality of DCF records, State v. Apostle, 8 Conn. App. 216, 235, 512 A.2d 947 (1986), assumes that confidentiality can be breached because the court reviewed the decision of the trial court not to release any information after the trial court had conducted an in camera review. Nothing is said in Apostle about the lack of statutory authority to conduct an in camera review. See id., 235-39.

The decision in State v. Howard, supra, 221 Conn. 447, involves a request by a defendant for an in camera inspection of juvenile court records. The court notes that “[j]uvenile court records pertaining to neglect proceedings and encompassing information from [DCF] are confidential and subject to disclosure to third parties only upon court order.” Id., 459 n.10. The Supreme Court concluded that although it would be improper to refuse to examine documents in camera if a sufficient foundation had been laid to indicate a reasonable likelihood that they contain information material to the case or useful for impeachment of a witness, the defendant had not made such a showing. Id., 450. Thus, the case also assumes that DCF records may be examined and released to a defendant if the records are relevant to the reason for the request.

General Statutes § 17a-28 (b) and (c) contain a qualified privilege of confidentiality in that there is contemplated a release of records by the commissioner of children and families, without the consent of the individual named in the records, to the chief state’s attorney or his designee. Furthermore, General Statutes § 17a-28 (i) provides that “[a] state’s attorney shall disclose to the defendant ... in a criminal prosecution . . . exculpatory information and material contained in such record and may disclose, without a court order, information and material contained in such record which could be the subject of a disclosure order.”

The language of the statutes and the case law noted in this opinion lead us to the conclusion that a trial court may conduct an in camera inspection of DCF records and release portions of the records in appropriate circumstances. The statute does not prohibit the disclosure of the records under any circumstances, absent the victim’s consent. Indeed, if this conclusion were otherwise, the state’s attorney could circumvent the need to reveal exculpatory information contained in DCF records, which might otherwise be required to be given to the defendant under the principles of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), by simply not requesting or receiving such records.

B

The Showing Necessary for the Inspection

Having concluded that DCF records are not the subject of an absolute statutory privilege, we must now decide if the defendant made a showing sufficient to obtain an in camera review based on due process grounds. The defendant does not claim he required the material for confrontation proposes or that he was entitled to an in camera review prior to trial. The question of what triggers the defendant’s right, on due process grounds, to an in camera inspection is a close one and its resolution depends on whether federal law, as expounded in Pennsylvania v. Ritchie, 480 U.S. 39, 107 S. Ct. 989, 94 L. Ed. 2d 40 (1987), and Connecticut case law require an in camera inspection when a defendant claims the record may contain exculpatory material and premises that claim on the fact that the investigation of DCF involves the same incident that forms the basis of his criminal charges.

The facts and circumstances of this case are similar to those of Pennsylvania v. Ritchie, supra, 480 U.S. 39. The defendant, Ritchie, was charged with rape, involuntary deviate sexual intercourse, incest, and corruption of a minor, resulting from allegations made by his thirteen year old daughter. Id., 43. The victim reported the incidents to the police who referred her to children and youth services (CYS). Id.

During pretrial discovery, the defendant served CYS with a subpoena requesting access to the records generated as a result of the victim’s consultations with CYS investigators. Id. CYS refused to comply and claimed that Pennsylvania law protected the record’s confidentiality. Id. The file pertained to the charges brought against the defendant. The defendant argued that he was entitled to the records because the file “might contain the names of favorable witnesses, as well as other unspecified exculpatory evidence.” Id., 44. The judge denied the request, and the jury convicted the defendant on all counts. Id., 45.

The defendant appealed to the Superior Court of Pennsylvania, which found that the denial of an in camera review violated the confrontation clause of the sixth amendment. Id. The Supreme Court of Pennsylvania affirmed the decision and also concluded that the defendant had a right to review the file for any exculpatory material. Id.

Although the Supreme Court of the United States refused to furnish a broad pretrial discovery rule in cases involving qualified, privileged material by invoking the sixth amendment’s confrontation clause to allow in camera inspections, the court found such a trial right existed under the due process clause of the fourteenth amendment. “Because the applicability of the Sixth Amendment to this type of case is unsettled, and because our Fourteenth Amendment precedents addressing the fundamental fairness of trials establish a clear framework for review, we adopt a due process analysis for puiposes of this case.” Id., 56. Under a due process analysis, rather than an analysis of a constitutional confrontation claim, the Supreme Court held that the defendant Ritchie was “entitled to have the CYS file reviewed by the trial court to determine whether it contains information that probably would have changed the outcome of the trial.” (Emphasis added.) Id., 58.

The state argues that the defendant does not have a right to an in camera inspection of the DCF file because the defendant failed to make a preliminary showing that the failure to conduct an in camera review impaired the defendant’s right to confrontation. The state relies on State v. Kulmac, supra, 230 Conn. 58, but that reliance is misplaced because that case dealt with the defendant’s right to an in camera inspection based on the confrontation clause of the sixth amendment, not on the due process clause of the fourteenth amendment to the United States constitution and “[i]n the absence of any preliminary showing of cause.” (Emphasis added.) Id., 57.

In Kulmac, the defendant, asserting a sixth amendment right to confront the witnesses against him, requested an in camera inspection of a DCF file, which the trial court denied. Id., 56. The decision concludes that to argue successfully for an in camera inspection of a qualified confidential file, a defendant must make a showing that the refusal to perform an inspection impairs the defendant’s right to confrontation. Kulmac, which was decided after Ritchie, makes no reference to Ritchie, presumably because Kulmac did not involve a claim of due process. Unlike the defendant in Kulmac, the defendant in the present case raises a claim that he has a due process right to an in camera review of a file for exculpatory evidence.

Our Supreme Court, as well as the United States Supreme Court, has recognized a due process right to require an in camera review of statutorily protected information, in the context of a prosecution’s duty to disclose exculpatory information. “[A]n independent right to disclosure of exculpatory information exists under the due process clause of the Connecticut constitution. Conn. Const., art. I, § 8; see Michigan v. Long, 463 U.S. 1032, 1041, 103 S. Ct. 3469, 77 L. Ed. 2d 1202 (1983).” State v. Simms, supra, 201 Conn. 405 n.8. Ritchie is an extension of that doctrine to material not in the possession of the prosecution.

In State v. Harris, supra, 227 Conn. 760, the defendant requested the qualified confidential personnel file of his accuser, which was not in the possession of the prosecution. The case does not involve the extent of the showing necessary to obtain an in camera review, but involves whether the trial court, after its in camera review, had released all relevant portions of the file to the defendant. Id., 761. Although the defendant in Harris asserted that his right to confrontation under the sixth amendment was violated by the pretrial denial of total access to his accuser’s file, rather than his due process right to exculpatory information, the case is important because the trial court had concluded that the file contained no information useful for impeachment or any other purpose, and the Supreme Court, after its own review of the material, concluded that the trial court had released all material evidence and that the defendant’s “due process rights were not violated.” Id., 763. Harris acknowledged Ritchie's holding “that due process provided a right to any exculpatory information contained in records that enjoyed a qualified privilege under state statute.” Id., 764.

Ritchie does not expressly define the type of particularized showing necessary to obtain an in camera review, but the entitlement to the inspection in that case rested on the defendant’s claim that “the file might contain the names of favorable witnesses, as well as other, unspecified exculpatory evidence.” (Emphasis added.) Pennsylvania v. Ritchie, supra, 480 U.S. 44. Unlike many other cases in which privileged information is sought, both Ritchie and the present case relate to files that involve the defendants themselves and to an investigation of facts involving the very crime of which they stand accused. The particular showing by the defendant in Ritchie was his need to obtain a review of a file in which he was personally involved. The same need exists in the present case.

In his initial request for the DCF file, the defendant in this case stated that the file may contain exculpatory information because after speaking to the victim, DCF closed the file and did not pursue the charges. The investigation by DCF was initiated by a private investigative social agency hired by the child’s mother. That agency is required by statute to report child abuse, and it reported to DCF that it believed the child had been abused. When DCF closed its file without taking any action, the agency, being dissatisfied, again submitted the matter to DCF for further investigation. DCF conducted another investigation and again closed its file. As was stated in Ritchie, “[although the obligation to disclose exculpatory material does not depend on the presence of a specific request,” the defendant must at least make some plausible statement of how the information would be both material and favorable to his defense. (Emphasis added.) Id., 58n.l5. On the basis of all of the circumstances of this case, we conclude that the defendant made a showing sufficient to trigger the in camera inspection requested.

Ritchie creates a broader right for an in camera inspection of qualified privileged documents under the due process clause of the fourteenth amendment than exists pursuant to the sixth amendment right of confrontation. We are bound by Ritchie because although we may grant greater protection of individual rights than is required by the federal constitution, federal constitutional law as expounded by the United States Supreme Court establishes a minimum national standard for the exercise of individual rights from which we may not deviate. State v. Miller, 227 Conn. 363, 379, 630 A.2d 1315 (1993). The defendant here has provided us with facts nearly duplicate to those in Ritchie. Those facts gave rise to a due process right in Ritchie and we cannot grant the defendant less.

A lack of knowledge about the credibility of a witness involves the constitutional right of confrontation. See Davis v. Alaska, 415 U.S. 308, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974). That lack of knowledge can be ameliorated by an extensive and effective cross-examination. A lack of any knowledge at all about the existence of exculpatory material can never be cured. We conclude, in accordance with State v. Harris, supra, 227 Conn. 764, and Pennsylvania v. Ritchie, supra, 480 U.S. 58, that the defendant, under the circumstances of this case, upon the request as made in this case, has a due process right to an in camera inspection of the qualified confidential reports of DCF, not in the possession of the prosecution, in order that the court may determine whether exculpatory evidence exists. The minimal national standard of Ritchie demands the conclusion.

While a defendant may have a due process right, upon request and after meeting a requisite threshold, to an in camera inspection of a qualified, confidential record, a defendant does not have a right to automatically receive such information. After performing an in camera inspection, the trial court is required to release only information that is material and favorable to the defense. Pennsylvania v. Ritchie, supra, 480 U.S. 57, citing Brady v. Maryland, supra, 373 U.S. 87; see also State v. Quintana, 209 Conn. 34, 37, 547 A.2d 534 (1988); State v. Jaynes, supra, 36 Conn. App. 420.

“Favorable evidence is that evidence which . . . might have led the jury to entertain a reasonable doubt about . . . guilt . . . and this doubt must be one that did not otherwise exist. ... On the other hand, evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome. United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985); State v. Rasmussen, [225 Conn. 55, 92, 621 A.2d 728 (1993)]; State v. Pollitt, 205 Conn. 132, 142-43, 531 A.2d 125 (1987).” (Citations omitted; internal quotation marks omitted.) State v. Jaynes, supra, 36 Conn. App. 421-22. If the information discovered during an in camera inspection “probably would have changed the outcome of [a] trial” the defendant must be given a new trial. Pennsylvania v. Ritchie, supra, 58.

The case is remanded to the trial court for an in camera review of the DCF files. In the event that the trial court finds any evidence in the DCF record that is material and favorable to the defendant’s case, the information must be disclosed to the defendant, the judgment is reversed and the defendant is entitled to a new trial; if the files do not contain any exculpatory material, the judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-70 provides in pertinent part: “Sexual assault in the first degree: Class B felony: One year not suspendable. (a) A person is guilty of sexual assault in the first degree when such person . . . (2) engages in sexual intercourse with another person and such other person is under thirteen years of age and the actor is more than two years older than such person. . . .”

       General St atutes § 53-21 provides: “Injury or risk of injury to, or impairing morals of, children. 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 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 that ton years or both.”

       The mother claimed that on one occasion, the victim, after returning from a visit with her father, went inside her room, rijrped up her dolls, and wet herself. The victim also exhibited anger, had nightmares, began wetting her bed, clung to people, was afraid of men and boys, and became nervous and got, stomachaches before visitation with her father.

       General Statutes § 17a-28 prohibits 1he release of records created or obtained in connection with child protection and care activities, with some exceptions. The following language from that statute is relevant to this case: “(b) Notwithstanding the provisions of section 1-19, l-19a or l-19b, records maintained by the department shall be confidential and shall not be disclosed. Neither the commissioner nor any of his employees shall disclose, in whole or in part, the nature or content of any records of any person to any individual agency, corporation or organization without the consent of the person, his attorney or his authorized representative, except as provided in subsections (c) and (d) of this section. Any unauthorized disclosure shall be punishable by a fine of not more than one thousand dollars or imprisonment for not more than one year, or both.
      “(c) The commissioner or his designee shall, upon request, promptly provide copies of records, without the consent of a person, to the chief state’s attorney or his designee or a state’s attorney for the judicial district in which the child resides or in which the alleged abuse or neglect occurred or his designet', for purposes of investigating or prosecuting an allegation of child abuse or neglect. The commissioner shall disclose to such attorney any part of a record, whether or not created by the department, provided no confidential record of the superior court shall be disclosed, except upon an order of a judge of the superior court for good cause shown. . . .
      “(i) Information disclosed from a person’s record shall not be disclosed further without the written consent of the person, except if disclosed to a party or his counsel pursuant to an order of a court in which a criminal prosecution or an abuse, neglect, commitment or termination proceeding against the party is pending. A state's attorney shall disclose to the defendant or his counsel in a criminal prosecution, without the necessity of a court order, exculpatory information and material contained in such record and may disclose, without a court order, information and material contained in such record which could be the subject of a disclosure order. . . .”

       Upon objection to the request for an in camera inspection a dialogue took place, which indicated that the court and counsel were concerned with whether General Statutes § 17a-28 contains a qualified or absolute privilege of confidentiality and if the privilege is qualified, the purpose of the in camera inspection. The following is the dialogue:
      “The Court: Is there some exception in the statute which would permit disclosure?
      * ** *
      “Mr. Hasse [Defense Counsel]: It seems appropriate because there could be an in camera review of the documents that we have here.
      “The Court: Where does the statute say that?
      “Mr. Hasse: I believe one of the letters had said that.
      “The Court: Well, it may have. I gather it did. Let’s start at the beginning.
      jjj sfc :J:
      “The Court: Mr. Hasse, so we can get some focus here, make an offer of proof, what purpose?
      * * *
      “Mr. Hasse: There is a criminal prosecution pending. They did provide some investigation as to the initial complaints by the mother. They opened a file on it. They investigated. She talked to the child witness and the file was closed, and she noted that the status of the parties in the midst of the divorce was further—was afurther reason why they closed the file because—
      “The Court: How is that probative of the issue here as to whether or not [the defendant] committed the crime or crimes with which he is now charged?
      “Mr. Hasse: I believe that DCF is probably, they are the agency in the state that regularly looks into this type of allegation, that is their function, that is what she is trained to do. She has done many of these things. She investigated in the way DCF does in the normal course of DCF’s business and a file was opened, and an investigation was terminated as inconclusive. No additional disclosure. And that was right at the time the report was initially made. . . .
      “The Court: As I understand it, the purpose of the in camera inspection is to see if there is any material that should be disclosed to the defendant. What should I be looking for?

        "Mr. Hasse: I think subparagraph [i] of the statute talks about exculpatory material, material contained in such a record as may be disclosed through a disclosure order.
      “The Court: After there has already been a disclosure and that goes to a further disclosure. I am not at the first point where there is any disclosure at all. How do I get to that?
      “Mr. Hasse: There has been a disclosure from ABC [a private counseling agency hired by the child’s mother], Mrs. Couillard, saying that they did make these reports and follow up with Mrs. Bohara and her supervisors.
      “The Court: It doesn’t disclose the commissioner’s file though.
      “Mr. Hasse: But it discloses what was told to the commissioner, the fact that they were given to investigate and they investigated, and they came back with some sort of a report or conclusions of that investigation. . . .
      “The Court.: Let me try to figure out, what are you trying to get to? Are you trying to impeach the child?
      “Mr. Hasse: I would say more ABC in terms of their investigation, the conclusion of their investigation was different than DCF’s.
      “The Court: So the purpose of your subpoenaing DCF here today is to show that ABC—ABC’s conclusions were wrong, not to attack the child’s credibility.
      “Mr. Hasse: No, I won’t attack the child’s credibility.”

       This issue was posed in a footnote in State v. D'Ambrosio, 212 Conn. 50, 57 n.5, 561 A.2d 422 (1989), cert. denied, 493 U.S. 1063, 110 S. Ct. 880, 107 L. Ed. 2d 963 (1990), but not decided. The case of State v. Pratt, 235 Conn. 595, 669 A.2d 562 (1995), also does not decide the issue. In Pratt, an in camera inspection by the trial court of material with a qualified statutory privilege had occurred with the consent of the witness involved, the defendant sought direct access to the material, and the material was sought for impeachment purposes. Id., 607. These facts are inapposite to the present case.

       There is no violation of Brady v. Maryland, supra, 373 U.S. 83, in the present case because the state’s attorney is not in possession of the DCF records involved.

       The defendant specifically stated that he did not wish to attack his daughter’s credibility. This case, therefore, does not involve cases such as Davis v. Alaska, 415 U.S. 308, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974). Connecticut cases, such as State v. Kulmac, supra, 230 Conn. 43, State v. Howard, supra, 221 Conn. 447, and State v. Apostle, supra, 8 Conn. App. 216, analyze the issue of in camera inspection when the claim is that the material is needed to attack the credibility of a witness.

       See General Statutes §§ 17a-101 and 17a-102.


source: Caselaw Access Project

author: O’CONNELL, J.

license: Public Domain

text:
    LEROY HARRIS v. COMMISSIONER OF CORRECTION
    (12842)
    O’Connell, Landau and Hennessy, Js.

      Argued October 2, 1995
    decision released February 6, 1996

      Christopher C. Sheehan, deputy assistant public defender, with whom, on the brief, was Paula Mangini Montonye, assistant public defender, for the appellant (petitioner).

      Nancy L. Gillespie, deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Christopher Alexy, assistant state’s attorney, for the appellee (respondent).
   O’CONNELL, J.

The petitioner appeals from the judgment of dismissal of his petition for a writ of habeas corpus. He claims that the habeas court improperly (1) denied his motion for a new habeas hearing, (2) denied his petition for certification to appeal the denial of his motion for anew habeas hearing, and (3) dismissed his petition for a writ of habeas corpus. We affirm the judgment of the trial court.

The petitioner was convicted of three counts of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4) and one count of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (1). The convictions were affirmed by this court in State v. Harris, 22 Conn. App. 329, 577 A.2d 1077 (1990). He brought a writ of habeas corpus claiming ineffective assistance of both trial and appellate counsel. Following a hearing, the habeas court dismissed the petition and subsequently granted the petitioner permission to appeal the dismissal.

The petitioner appealed to this court. In response to the petitioner’s request for a transcript of his habeas hearing, the court reporter confirmed that the reporter’s notes and the computer diskette of the hearing had been lost. The petitioner then filed a motion for a new trial or reconstruction of the habeas hearing record, which was denied by the trial court. This court then granted a motion for review and ordered the habeas court to reconstruct the record. Additional facts are included in our analysis of each claim.

I

The petitioner’s first two claims pertain to the reconstructed record that replaced the unavailable transcript. The petitioner claims that the habeas court improperly (1) denied his motion for a new trial because reconstruction is never proper in a habeas case, and (2) refused to certify for appeal the denial of his motion for a new trial.

A

The petitioner argues that the unique nature of a habeas corpus proceeding excludes reconstruction as a possible remedy when reporter’s notes are lost. The petitioner’s argument that the only proper remedy is a new habeas hearing ignores the peculiar procedural background of this case.

When the petitioner learned that the notes and diskette had been lost, he filed a bifurcated motion in which he asked the habeas court either (1) to grant a new trial or, (2) to hold a hearing to reconstruct the record. When this motion was denied in toto, the petitioner sought review from this court, asking us to reverse the habeas court and order it either to grant a new trial or to conduct a hearing to reconstruct the record.

We considered the motion for review, dismissed the request for a new trial, granted the alternate form of relief expressly sought by the petitioner, ordering the habeas court to conduct a reconstruction hearing. On remand, a habeas court is limited to the specific direction of this court. See Jackson v. Commissioner of Correction, 227 Conn. 124, 129 n.6, 629 A.2d 413 (1993). In this case, we directed the habeas court only to hold a reconstruction hearing and it complied with our remand.

Following the reconstruction hearing, the petitioner filed an amended motion for a new habeas hearing. The habeas court denied this motion and also denied certification to appeal its denial. In the petitioner’s amended motion 1'or a new habeas hearing, he essentially complained that the habeas court should not have carried out our remand. Because this court had already dismissed the petitioner’s request for a new habeas hearing, it would have been illogical for the habeas court to certify that issue back to us. Stated simply, the petitioner received what he requested and now complains that it was unlawful for it to be granted to him. Accordingly, under the circumstances of this case, the habeas court properly denied certification to appeal the denial of his motion for a new trial. Thus, we do not reach the petitioner’s contention that reconstruction of a habeas corpus proceeding can never be proper.

B

Because we have concluded that reconstruction is a possible remedy for lost habeas notes, we turn now to whether the reconstructed record and its exhibits are adequate for the purpose of appealing the dismissal of the habeas corpus petition. The original habeas hearing lasted less than three hours and consisted of the testimony of only two witnesses—the petitioner and his counsel from the underlying criminal case. The habeas court had taken extensive and detailed notes during the hearing. These notes were made exiiibits in the reconstructed hearing, as were the notes of both counsel. Additionally, counsel agreed to a written stipulation of facts.

When the transcript is unavailable, substitutes such as “[a] statement of facts agreed to by both sides, [or] a full narrative statement based perhaps on the trial judge’s minutes taken during [the hearing]” are acceptable “if they place before the appellate court an equivalent report of the events at trial from which the appellant’s contentions arise.” Draper v. Washington, 372 U.S. 487, 495, 83 S. Ct. 774, 9 L. Ed. 2d 899 (1963). Although the state must ensure that the trial record is adequate for effective appellate review of any claims raised by an indigent defendant, it is not required to furnish him with a verbatim transcript of the underlying trial. State v. Williams, 227 Conn. 101, 105, 629 A.2d 402 (1993). A new trial is required only if the record, as reconstructed, is inadequate for effective appellate review of the defendant’s claims. Id., 105.

The sufficiency of a reconstructed transcript to enable appellate review is a question of fact. We will affirm the habeas court’s determination that a reconstructed record was sufficient unless that determination is clearly erroneous. State v. DePastino, 228 Conn. 552, 557-58, 638 A.2d 578 (1994). The petitioner in the present case contends that the reconstruction is inadequate because some facts may be missing from the record. The petitioner’s appellate counsel did not represent him at the habeas hearing and does not know if any significant facts were omitted from the reconstructed record. Nor can this court, through omniscience, know what, if any, important facts are missing. The habeas court was in the best position to determine whether there were any significant facts missing from the reconstruction and the petitioner has not demonstrated that the habeas court finding was clearly erroneous.

Furthermore, before a defendant can establish that he is entitled to a new trial on the basis of an inadequate reconstructed record, he must identify a specific appellate claim that this court would be unable to review effectively using the reconstructed record. Id., 558. The defendant has not identified any specific claim that we cannot review on the basis of the reconstructed record. After reviewing the petitioner’s specific claims of ineffective counsel, we conclude that raising these claims does not depend on a verbatim transcript of the habeas court testimony. See part II of this opinion.

The petitioner has not demonstrated that the reconstructed record prejudiced him so that he was unable to present his claims to this court for review. We therefore conclude that the habeas court’s ruling that the reconstructed record was adequate for effective appellate review was not clearly erroneous.

II

On his certified claim the defendant argues that he was denied his sixth amendment right to effective assistance of counsel both at his criminal trial and on appeal from his conviction.

A

The standard to be applied by habeas courts in determining whether an attorney effectively represented a criminal defendant is set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). “In order for a criminal defendant to prevail on a constitutional claim of ineffective assistance of counsel, he must establish both (1) deficient performance, and (2) actual prejudice. . . . Thus, he must establish not only that his counsel’s performance was deficient, but that as a result thereof he suffered actual prejudice, namely, that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. ... In this context, a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different, does not require the petitioner to show that counsel’s deficient conduct more likely than not altered the outcome in the case. . . . Rather, it merely requires the petitioner to establish a probability sufficient to undermine confidence in the outcome.” (Citations omitted; internal quotation marks omitted.) Bunkley v. Commissioner of Correction, 222 Conn. 444, 445-46, 610 A.2d 598 (1992).

The petitioner contends that the habeas court improperly denied his petition solely on the basis that he had not satisfied the prejudice prong of Strickland. A court, however, need not determine the deficiency of counsel’s performance if consideration of the prejudice prong will be dispositive of the ineffectiveness claim. Aillon v. Meachum, 211 Conn. 352, 362, 559 A.2d 206 (1989).

A habeas court “hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury. Some of the factual findings will have been unaffected by the errors, and factual findings that were affected will have been affected in different ways. Some errors will have had a pervasive effect on the inferences to be drawn from the evidence, altering the entire evidentiary picture, and some will have had an isolated, trivial effect. ... [A] court making the prejudice inquiry must ask if the defendant has met the burden of showing that the decision reached would reasonably likely have been different absent the errors.” Strickland v. Washington, supra, 446 U.S. 695-96.

The Strickland court mandates that the habeas court consider both “unaffected findings” and “the effect of the errors on the remaining findings.” Id. The petitioner claims that the habeas court ignored that mandate and inquired into the sufficiency of the evidence rather than its reliability. This argument, however, is not supported by the habeas court’s memorandum of decision. The court did not discuss individually each of the several grounds raised in the defendant’s petition, but summarized the unaffected evidence, holding that “[that] evidence established that any deficiencies in the work of [trial] counsel were not shown to have lead to an unreliable result at trial.” This conclusion demonstrates that the habeas court considered not whether the evidence of the petitioner’s guilt was sufficient, but whether in view of the unaffected evidence, the determination of his guilt was reliable.

B

In the first of his ineffective assistance claims, the petitioner contends that trial counsel rendered ineffective assistance when she failed to object to the victims’ unfavorable characterizations of the petitioner. Those victims, however, clearly and unequivocally identified the petitioner. Therefore, even if counsel had objected to the victims’ characterizations, their identifications of the petitioner would nevertheless have been admissible to counter the petitioner’s mistaken identification defense. Based on the abundant evidence of the defendant’s identification, there is no reasonable probability that, had trial counsel objected to the unfavorable characterizations, the outcome of the trial would have been different.

In his second ineffective assistance claim, the petitioner argues that trial counsel failed to object to the admission of consciousness of guilt evidence. Specifically, the petitioner complains that the state was permitted to introduce evidence that the petitioner had escaped from custody while awaiting arraignment for the offenses underlying the habeas action.

Evidence of flight or escape is admissible to show consciousness of guilt. State v. Burak, 201 Conn. 517, 532-33, 518 A.2d 639 (1986). Although the petitioner contends that he was prejudiced by additional evidence describing the circumstances of the escape, the state is entitled to prove not only that the petitioner fled, but why. “[T]he probative value of evidence of flight is, in large part, dependent upon facts pointing to the motive which prompted it.” State v. Piskorski, 177 Conn. 677, 723, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194 (1979); see State v. Alford, 37 Conn. App. 180, 186, 655 A.2d 782, cert. denied, 234 Conn. 914, 660 A.2d 357 (1995). Any objection to the introduction of this additional evidence by trial counsel would have been futile because such evidence was clearly admissible. The petitioner was therefore not prejudiced by trial counsel’s failure to object to evidence of flight.

The petitioner also contends that he was prejudiced by trial counsel’s failure to request a limiting instruction on the jury’s use of flight evidence. Although the trial court did not expressly limit the jury’s consideration of the evidence, it did explain that the state had offered evidence of the petitioner’s flight to show consciousness of guilt and that, if the jury believed the facts offered by the state, it could interpret those facts to show consciousness of guilt. Even if counsel could have obtained a limiting instruction, the jury would still have known that the petitioner had escaped from custody while being held on the charges that the jury had to decide. Any additional evidence that described the circumstances of the escape did not prejudice the petitioner by undermining the fairness or the reliability of his conviction. Strickland v. Washington, supra, 466 U.S. 693.

The petitioner next makes a series of additional ineffective assistance of counsel claims. The petitioner complains that, during trial counsel’s cross-examination of the victims, she used legal terminology, robbery and sexual assault, and the use of these legal terms solidified the elements of the crimes in the minds of the jury. The petitioner also claims that trial counsel failed to cross-examine a witness properly about his motive to testily, improperly referred to photographs of the defendant as “mug shots,” and failed to object to evidence of the state of mind of each of the victims at a lineup. Because the petitioner has failed to show that any of these actions undermined the reliability of the results of the proceeding as required by Strickland, we need not discuss them further.

In his next ineffective assistance of counsel claim, the petitioner contends that trial counsel should have requested a juiy instruction on the lesser included offense of robbery in the third degree. The petitioner correctly argues that the use of or representation of a firearm by a participant distinguishes first degree from third degree robbery. General Statutes §§ 53a-134 and 53a-136. Although the habeas court did not specifically address this issue in its memorandum of decision, we conclude that the petitioner was not prejudiced by counsel’s failure to request a lesser included offense instruction.

Because the jury was instructed to base its decision on the evidence and returned a guilty verdict of robbery in the first degree, we conclude that it necessarily believed the uncontroverted evidence that one of the perpetrators used a gun. Any possibility that the jury would have convicted the petitioner on the lesser included offense of robbery in the third degree does not amount to a probability sufficient to undermine confidence in the outcome of the defendant’s conviction. See Fair v. Warden, 211 Conn. 398, 559 A.2d 1094, cert. denied, 493 U.S. 981, 110 S. Ct. 512, 108 L. Ed. 2d 514 (1989).

The defendant’s last two claims of ineffective assistance concern the absence of a unanimity instruction. The petitioner first claims that trial counsel should have requested an instruction on unanimity for the robbery count. Second, the petitioner claims that he was prejudiced by appellate counsel’s failure to raise that issue on direct appeal.

The petitioner claims that trial counsel should have requested an instruction that the jury reach a unanimous verdict on whether the petitioner was a participant in or an accessory to the robbeiy. He has not provided us, however, with a separate analysis of this claim. The failure to brief an issue adequately constitutes abandonment of that issue. See Latham & Associates, Inc. v. William Raveis Real Estate, Inc., 218 Conn. 297, 300, 589 A.2d 337 (1991). We therefore decline to review it.

The defendant also claims that he was prejudiced by appellate counsel’s failure to raise the unanimity issue on appeal. In order to establish that prejudice resulted from appellate counsel’s deficient performance, a petitioner must show that, “as a result of that performance, there remains a probability sufficient to undermine confidence in the verdict that resulted in his appeal.” (Emphasis added.) Bunkley v. Commissioner of Correction, supra, 222 Conn. 454. Because the petitioner has failed to establish that he was prejudiced by the absence of this instruction, we cannot conclude that there is any probability that the petitioner is burdened by an unreliable conviction.

The judgment is affirmed.

In this opinion the other judges concurred.

       Reference to the habeas hearing record in this opinion is intended to refer only to the transcript of oral proceedings. The original record is otherwise fully intact and was available for use by this court.

       The defendant’s status as indigent is irrelevant to the disposition of this portion of his appeal.

       On direct examination, one victim characterized the defendant as a creep and mean looking, and the other victim called the defendant a bastard and said that she recognized him from his intimidating look.


author: HEIMAN, J.

text:
    MAX JAVIT ET AL. v. MARSHALL’S, INC., ET AL.
    (13445)
    Dupont, C. J., and O’Connell and Heiman, Js.

      Argued October 27, 1995
    decision released February 6, 1996

      Peter B. Rustin, with whom, on the brief, were Richard P. Weinstein and Gail P. Ferris, for the appellants (plaintiffs).

      Robert P. Dolian, with whom was William H. Bright, Jr., for the appellees (defendants).
   HEIMAN, J.

The plaintiffs appeal from the judgment rendered in favor of the defendants after a trial to the court. The plaintiffs assert that the trial court improperly (1) granted the defendants’ motion to strike the plaintiffs’ case from the jury docket, (2) failed to find the execution of the lease to be merely a perfunctory act, (3) found that no enforceable contract existed between the parties, (4) found that no enforceable agreement to lease existed between the parties, (5) found that the defendants had not violated an implied covenant of good faith and fair dealing, (6) found that the defendants had not violated the Connecticut Unfair Trade Practices Act (CUTPA) and (7) found that the plaintiffs were not entitled to recover under the doctrine of promissory estoppel. We agree with the plaintiffs that the trial court improperly struck the case from the jury docket and, on that basis, we reverse the judgment of the trial court. Because the other issues turn on questions of fact rather than questions of law, and, as such, must be resolved by the jury at a new trial, we do not address them.

This action commenced with the filing of a three count complaint against the defendants. The three alleged bases of recovery were promissory estoppel, unfair and deceptive trade practices in violation of CUTPA, and breach of the duty of good faith and fair dealing. The underlying dispute related to lease negotiations with the defendants. The complaint was subsequently amended in order to add Rachel Javit, a coowner of the subject property, as a party plaintiff. The underlying claims and causes of action raised in the original complaint were unaffected by the first amended complaint.

The plaintiffs alleged in the first count of the original complaint and first amended complaint that they were the owners and lessors of the Tri-City Plaza Shopping Center in Vernon, and that the defendants had expressed interest in operating a Marshall’s store in the shopping center. According to the plaintiffs, the parties began negotiating a “business deal” that included a proposed lease of retail space and a guarantee of performance. Furthermore, the plaintiffs asserted that Sage-Alien and Company, Inc. (Sage-Alien), was in possession of the premises at issue and that the entire transaction with the defendants was dependent on Sage-Alien’s voluntary relinquishment of those premises. The plaintiffs further asserted that they had reached a point of accommodation with Sage-Alien and that they were prepared to enter into a termination agreement with Sage-Alien. The plaintiffs contended, however, that before they terminated the Sage-Alien lease, they wanted an absolute promise from the defendants that they would occupy the space in question. The plaintiffs also contended that, at the time of the negotiations with the defendants, the defendants were negotiating directly with Sage-Alien for the purchase of that company. The plaintiffs further claimed that the defendants had possessed a lease executed by the plaintiffs, and that the defendants had retained the lease while they continued to negotiate for the purchase of Sage-Alien. According to the plaintiffs, the defendants promised on numerous occasions that they would “take the Sage-Alien space.” The plaintiffs alleged that in reliance on those promises, they entered into a termination agreement with Sage-Alien and declined to negotiate with other potential occupants of the space. The plaintiffs further alleged that after the termination of the Sage-Alien lease agreement, the defendants failed to honor their promises to the plaintiffs regarding the Sage-Alien space. The plaintiffs claimed that they reasonably relied to their detriment on the promises made by the defendants and suffered substantial monetary damages as a result of such reliance. Finally, the plaintiffs asserted that injustice could be avoided only by the enforcement of the defendants’ promises through an award of money damages.

The second count of the original and the first amended complaints realleged the factual predicate of the first count, but asserted that the defendants’ failure to honor their promises, coupled with their holding on to the lease agreement executed by the plaintiffs for an extended period of time while continuing to negotiate for the purchase of Sage-Alien, constituted an unfair and deceptive trade practice in violation of CUTPA.

The third count of the original and the first amended complaints alleged the same factual predicate as the first and second counts, but asserted that the defendants had breached their duty of good faith and fair dealing.

In neither the original complaint nor the first amended complaint did the plaintiffs allege that a lease agreement existed between the parties, or that the defendants breached such an agreement. The defendants filed an answer to the first amended complaint on October 28,1991, and the parties were at issue. Neither the plaintiffs nor the defendants claimed the case for a juiy trial.

On July 1, 1992, the plaintiffs, with the consent of the defendants, filed a second amended complaint adding an additional count alleging a breach of lease. The defendants filed an answer to the second amended complaint on July 20, 1992, without claiming any special defenses, and the parties were again at issue. On July 21, 1992, within ten days of the second closing of the pleadings, the plaintiffs filed a claim for a jury trial. On August 20, 1992, the defendants filed a motion to strike the case from the jury docket, claiming that the plaintiffs had failed to file their jury claim in a timely manner as required by General Statutes §§ 51-239b and 52-215. On September 4, 1992, the trial court granted the defendants’ motion.

The plaintiffs claim that the trial court improperly struck the case from the jury docket. We agree. Where the original ten day period for claiming a case to the jury has expired, a new ten day period may be created by the filing of an amended pleading, provided that the amended pleading introduces a new issue of fact into the case. Masto v. Board of Education, 200 Conn. 482, 488, 511 A.2d 344 (1986). If a new issue of fact is introduced by the amended pleading, requiring the filing of a responsive pleading, then the new ten day period within which the parties may elect a jury trial begins to run from the time that the responsive pleading is filed and the parties are again at issue. Home Oil Co. v. Todd, 195 Conn. 333, 343, 487 A.2d 1095 (1985).

The plaintiffs filed their jury claim within ten days after the defendants filed their answer to the second amended complaint. Thus, in light of the legal principles stated above, we must determine whether the plaintiffs’ second amended complaint introduced new issues of fact into the case. If new issues of fact were introduced into the case, then the plaintiffs were entitled to have the case entered on the jury docket.

“At the outset, we emphasize that the construction of a pleading is a question ultimately for the court. . . . When a case requires this court to determine the nature of a pleading filed by a party, we are not required to accept the label affixed to that pleading by the party. In this vein, we analyze the pleadings at issue in the present case.” (Citations omitted.) Id., 340.

We have compared the first amended complaint with the second amended complaint and conclude that the second amended complaint imported new issues of fact into the case. In the first count of the second amended complaint, the plaintiffs alleged that the defendants “agreed to lease” the Sage-Alien space from the plaintiffs, and that the defendants “breached said Lease Agreement” by failing to execute documents, take possession of the premises and honor the terms of the documents, including all financial commitments contained therein. These factual allegations, especially the claim that a lease agreement actually existed and that the defendants breached the agreement, are new factual allegations not found in the original or first amended complaint.

Thus, because the plaintiffs alleged new issues of fact in the second amended complaint and filed their jury claim within ten days after the parties were at issue, we conclude that the plaintiffs were entitled to a jury trial and that the trial court improperly struck the case from the jury docket.

The judgment is reversed and the case is remanded with direction to deny the defendants’ motion to strike the case from the jury docket and for a new trial before a jury.

In this opinion the other judges concurred.

       General Statutes §§ 42-110a through 42-1 lOq.

       A second amended complaint forms the basis of the issue we must decide.

       General Statutes § 52-215 provides in relevant part: “When ... an issue of fact is joined, the case may, within ten days after such issue of fact is joined, be entered in the docket as a jury case upon the request of either party made to the clerk . . .

       General Statutes § 51-239b provides: “In civil actions a jury shall be deemed waived unless requested by either party in accordance with the provisions of section 52-215.”

       See footnote 3.

       The defendants posit that, even if the plaintiffs have alleged new facts, the cause of action asserted would violate the statute of frauds; General Statutes § 52-550; and, therefore, the plaintiffs would be foreclosed from recovery. We note that certain factors remove a case from being governed by the statute of frauds and that the existence or nonexistence of these factors turns on the evidence adduced at trial. Thus, we are unable to anticipate whether the lease agreement alleged is barred by the statute of frauds. This is an issue that must be resolved at trial, not on a factually unsupported assertion.

       We note that because the second amended complaint raised new issues of fact, our opinion in Flint v. National Railroad, Passenger Corp., 37 Conn. App. 162, 655 A.2d 266, cert. granted, 233 Conn. 905, 657 A.2d 642 (1995), is not controlling. In that case, we determined that the trial court properly denied the plaintiffs claim for a jury trial because “the amendments to the complaint concerning the plaintiffs injuries did not enlarge any existing issues or add any new issues to the case, but merely restated, albeit with more specificity, the plaintiffs original claims of injury.” Id., 166.


author: LAVERY, J.

text:
    SHAWMUT BANK CONNECTICUT, N.A. v. CONNECTICUT LIMOUSINE SERVICE, INC.
    (13812)
    Laveiy, Spear and Hennessy, Js.

      Argued October 23, 1995
    decision released February 6, 1996

      Rodger C. Boe, with whom, on the brief, was Donald D. Philips, for the appellant (defendant).

      Howard L. Siegel, with whom was Margaret M. Pink-ham, for the appellee (plaintiff).
   LAVERY, J.

The defendant, Connecticut Limousine Service, Inc., appeals from the judgment of the trial court ordering it to wind up its business and affairs pursuant to General Statutes § 33-382 (a). The defendant claims that the trial court improperly (1) interpreted a pledge agreement between the parties to entitle the plaintiff, Shawmut Bank Connecticut, N.A., to the voting power of pledged shares of stock, (2) corrected a scrivener’s error when no claim for reformation was brought, (3) allowed parol evidence pertaining to the preparation of the pledge agreement, (4) admitted exhibits over the defendant’s objection, and (5) found that the plaintiff was not limited to the remedies expressly provided in the pledge agreement. We affirm the judgment of the trial court.

The trial court found the following facts. On September, 19, 1986, the parties executed a pledge agreement under which the defendant pledged 1000 shares of its stock to the plaintiff as collateral security for certain loan obligations. On August 28, 1992, the parties amended the pledge agreement as part of a comprehensive loan restructuring agreement involving an aggregate indebtedness in excess of $8 million. The pledge agreement, as amended, provides that the defendant pledge the 1000 shares of its stock as security for the August 28, 1992 loan obligations.

Pursuant to the August 28, 1992 loan agreement, the defendant was required to make monthly payments of $105,150 to the plaintiff. The defendant has not made these monthly payments since September, 1993. In November, 1993, the plaintiff declared the loans to be in default and, thereafter, sought to enforce its rights under the pledge agreement to exercise all voting rights of the pledged stock. In December, 1993, the plaintiff filed this action to wind up the business and affairs of the defendant pursuant to § 33-382 (a).

The pledge agreement contains the following provisions relating to the voting power of the pledged stock. Section 1 (B) of the pledge agreement states that the defendant retains all voting powers pertaining to the pledged stock “[u]nless and until an event of default specified in section 4 . . . shall occur.” Pursuant to § 1 (C) of the pledge agreement, the plaintiff shall have the sole and exclusive right to exercise all voting privileges in the event of any default. Section 4 of the pledge agreement provides that the defendant will not “issue shares or classes of its stock ... or redeem any shares of its stock.” Section 5 of the pledge agreement, entitled “Defaults,” provides a list of actions constituting an “event of default,” including a default on payment obligations under the August 28, 1992 loan agreement.

The trial court held that the reference in § 1 (B) of the pledge agreement to “an event of default in section 4” was a clerical or typographical error, and that § 5, rather than § 4, of the pledge agreement identifies events of default. Applying that construction to the pledge agreement, the trial court found that when the defendant defaulted on its payment obligations under the loan agreement, the plaintiff was entitled to exercise all voting privileges pertaining to the pledged stock. The trial court concluded that the plaintiff was entitled to the relief sought under § 33-382 (a) because it held the right to vote all of the authorized, issued and outstanding shares of the defendant’s stock.

I

The defendant claims that the trial court improperly concluded that a payment default entitled the plaintiff to the exclusive voting power of the pledged shares. The defendant relies on § 1 (B) of the pledge agreement, which states that the defendant is entitled to the voting powers pertaining to the pledged stock until a default specified in § 4 of the pledge agreement. We find that the trial court properly concluded that the reference to § 4 in § 1 (B) of the pledge agreement was a scrivener’s error.

The general rules of contract construction apply when construing a pledge agreement. When interpreting a contract, we construe the contract as a whole and all relevant provisions are considered when determining the intent of the parties. White v. Kampner, 229 Conn. 465, 473, 641 A.2d 1381 (1994). “The rules of construction ‘dictate giving effect to all the provisions of a contract, construing it as a whole and reconciling its clauses. . . . Where two clauses which are apparently inconsistent may be reconciled by a reasonable construction, that construction must be given, because it cannot be assumed that the parties intended to insert inconsistent and repugnant provisions.’ ” Dainty Rubbish Service, Inc. v. Beacon Hill Assn., Inc., 32 Conn. App. 530, 534, 630 A.2d 115 (1993), quoting Dugan v. Grzybowski, 165 Conn. 173, 179, 332 A.2d 97 (1973).

In this case, the written pledge agreement contains inconsistent clauses relating to the voting power of the pledged stock. As written, § 1 (B) of the pledge agreement allows the defendant to exercise voting rights until it either issues further shares of its outstanding stock or redeems any shares of stock. Section 1 (C) provides, however, that the plaintiff is entitled to exercise voting rights if the defendant, inter alia, defaults on its payment obligations under the loan agreement. We find that these clauses are inconsistent and can be reconciled only by construing the pledge agreement to mean that a transfer of voting power takes place only upon an “event of default” listed in § 5.

The defendant’s construction of the pledge agreement would make § 5 of the pledge agreement meaningless by transferring voting power only if the defendant issued further shares of stock or redeemed shares. “Parties do not ordinarily insert meaningless provisions in their agreements and, therefore, if it is reasonably possible to do so, every provision must be given effect.” Dainty Rubbish Service, Inc. v. Beacon Hill Assn., Inc., supra, 32 Conn. App. 534. We agree with the trial court that the pledge agreement must be construed to mean that voting power is transferred upon an event of default listed ,in § 5.

II

The defendant claims that the trial court’s construction of the pledge agreement constitutes a reformation of the contract when such relief was not requested by the plaintiff. We recognize that before reformation can be granted by the court, equitable relief must specifically be requested by the plaintiff. Practice Book § 139; Prudent Projects v. Travelers Ins. Co., 3 Conn. App. 429, 431, 489 A.2d 396 (1985); 1 Restatement (Second), Contracts § 155 (1981). We conclude, however, that the trial court’s construction of the pledge agreement was not a reformation.

An action for reformation rests on the equitable theory that the instrument sought to be reformed does not express the intention of the parties because it was executed as the result of mutual mistake or unilateral mistake coupled with fraud or inequitable conduct on the part of the other party. Greenwich Contracting Co. v. Bonwit Construction Co., 156 Conn. 123, 126, 239 A.2d 519 (1968). “In many instances, words used by the parties in their writing are not particularly suitable to express their meaning, but they are nevertheless capable of being interpreted, even without an actual physical reformation of the contract. ... In such a case no equity power is required.” D. Dobbs, Law of Remedies (2d Ed. 1993) § 11.6 (3). If the word in question appears to be an error, the trial court may, by looking at the contract as a whole, interpret the word so it is more logically suited to the agreement. See Roth v. Phillips Petroleum Co., 739 S.W.2d 598, 600 (Mo. App. 1987).

We agree with the trial court that the pledge agreement is capable of being interpreted by looking at the writing as a whole and reconciling inconsistent provisions. The trial court found that the pledge agreement contained inconsistent language and interpreted the agreement accordingly. The trial court did not reform the agreement by use of equitable powers. We conclude that the plaintiff was not required to request equitable relief and that the trial court properly construed the pledge agreement.

Ill

The defendant also claims that the trial court improperly allowed parol evidence concerning the drafting of the pledge agreement. Specifically, the defendant claims that the trial court improperly allowed into evidence the testimony of Melvin Ditman, an attorney who prepared the pledge agreement. Ditman testified that the reference in § 1 (B) of the pledge agreement to § 4 was incorrect, and that the reference should have been to § 5. We agree with the trial court’s decision that Ditman’s testimony did not violate the parol evidence rule.

The parol evidence rule prohibits the use of extrinsic evidence to vary or contradict the terms of an integrated written contract. Giorgio v. Nukem, Inc., 31 Conn. App. 169, 173-74, 624 A.2d 896 (1993); see also 2 Restatement (Second), Contracts § 213 (1981). The rule does not forbid the presentation of parol evidence, but prohibits the use of such evidence to vary or contradict the terms of the contract. TIE Communications, Inc. v. Kopp, 218 Conn. 281, 288, 589 A.2d 329 (1991). When a court is faced with an issue of the construction of a contract containing inconsistent clauses, the parol evidence rule does not apply. All relevant evidence is admissible on the issue of contract interpretation, and “[a]ny determination of the meaning or ambiguity should only be made in the light of the relevant evidence of the situation and relations of the parties, the subject matter of the transaction, preliminary negotiations and statements made therein, usages of trade, and the course of dealing between the parlies.” (Emphasis added.) 2 Restatement (Second), supra, § 212, comment (b). “The only limitation is that ‘the asserted meaning must be one to which the language of the writing read in context, is reasonably susceptible in the light of all of the evidence introduced.’ ” J. Calamari & J. Perillo, Contracts (3d Ed. 1987) § 3-15, quoting 2 Restatement (Second), supra, §215, comment (b). The operative question becomes whether parol evidence is offered to contradict the writing or to aid in its interpretation. Bead Chain Mfg. Co. v. Saxton Products, Inc., 183 Conn. 266, 273, 439 A.2d 314 (1981).

In this case, the trial court was faced with an issue of contract inteipretation. Ditman’s testimony was probative on the proper construction of two inconsistent clauses in the pledge agreement. We find that the testimony was not offered to contradict the writing, but to determine which of the references to events of default found in the two transfer of voting power provisions should be given effect. We conclude that the trial court properly allowed Ditman’s testimony into evidence to aid in the court’s construction of the pledge agreement.

IV

The defendant’s next claim is that the trial court improperly admitted several trial exhibits into evidence without a proper foundation for their admission as business records pursuant to General Statutes § 52-180. At trial, the plaintiff offered computer printouts relating to the amounts due and owing on the various loans secured by the pledge agreement under the business records exception to the hearsay rule. Paul Baiboni, a loan officer with the plaintiff, testified that he was personally familiar with the plaintiffs loan relationship with the defendant and that the bank maintained computer records with regard to these loans. The defendant objected on the ground that the plaintiff failed to authenticate the records with testimony by a witness with working acquaintance with the methods by which such records are made.

“Section 52-180 should be liberally construed, and review is limited to determining whether the trial court abused its discretion in admitting a document under that section.” State v. Lawler, 30 Conn. App. 827, 832, 622 A.2d 1040 (1993). In American Oil Co. v. Valenti, 179 Conn. 349, 360-61, 426 A.2d 305 (1979), our Supreme Court found that a witness must have personal experience with record keeping procedures in order to be competent to testify that computer generated records were made in the ordinary course of business. “What is crucial is not the witness’ job description but rather his knowledgeability about the basic elements that afford reliability to computer printouts. . . . The witness must be a person who is familiar with computerized records not only as a user but also as someone with some working acquaintance with the methods by which such records are made.” (Citation omitted.) Id.

In this case, Baiboni testified that he was familiar with the procedures by which the bank enters data into the computer system, outlined those procedures and stated that he and other bank officers found the procedures reliable. We conclude that the trial court did not abuse its discretion by admitting the computer generated records based on Balboni’s testimony.

V

The defendant’s final claim is that the trial court improperly concluded that the plaintiff was not limited to the remedies provided in the pledge agreement. The defendant refers to § 2 of the pledge agreement, which sets forth three remedies available to the plaintiff in the event of a default. The defendant claims that the plaintiff is not entitled to maintain an action under § 33-382 (a), but is limited to (1) the rights available under the Uniform Commercial Code, (2) the right to apply cash held as collateral toward payment of the loan, or (3) the right to sell the pledged stock. The trial court found that the remedies set forth in § 2 were not intended to exclude all other remedies. We agree.

Parties to a contract may agree on the remedies available in the event of a breach of contract. If the language of the agreement discloses that the parties intended to limit the remedies to those stated, the agreement will be enforced and the party will be limited to the exclusive remedies outlined in the agreement. See Coastal Computer Corp. v. Team Management Systems, Inc., 624 So. 2d 352, 353 (Fla. App. 1993); Middleton v. Klingler, 410 N.W.2d 184, 186 (S.D. 1987). A contract will not be construed to limit remedial rights unless there is a clear intention that the enumerated remedies are exclusive. See In re Hale Desk Co., 97 F.2d 372, 373-74 (2d Cir. 1938); 17A Am. Jur. 2d 762-63, Contracts § 748 (1991); see also Gaynor Electric Co. v. Hollander, 29 Conn. App. 865, 871-72, 618 A.2d 532 (1993) (holding that under General Statutes § 42a-2-719 parties may limit remedy for breach if limitation clearly expressed).

In this case, the pledge agreement contains no language indicating that the parties intended the remedies contained in § 2 to be the exclusive remedies available to the plaintiff in the event of a default. We agree with the trial court that the remedies in the pledge agreement are not exclusive and that the plaintiff was entitled to maintain an action under General Statutes § 33-382 (a).

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 33-382 (a.) provides in pertinent part: “The superior court for the judicial district where the principal office of a corporation is located, or any judge thereof, shall wind up the business and affairs of such corporation on petition of the following persons in the following cases: (1) In a proceeding by a holder or holders of shares having voting power sufficient under the circumstances to dissolve the corporation pursuant to the certificate of incorporation . . . .”

       Shawmut Bank Connecticut, N.A., was formerly known as Connecticut National Bank. Connecticut National Bank originally entered into the pledge agreement with Connecticut Limousine Group, Inc., and Connecticut Limousine Service, Inc.

       Section 1 (B) of the pledge agreement provides in pertinent part: “Unless and until an event of default specified in section 4 hereof (any event so continuing being hereinafter called a ‘default’) shall occur: (1) pledgor shall be entitled to exercise all voting and/or consensual powers pertaining to the pledged stock or any part thereof . . . .”

       Section 1 (C) of the pledge agreement provides in pertinent part: “If any default shall have occurred and while the same is continuing: (1) the bank or it s nominee or nominees shall have the sole and exclusive right to exercise all voting and consensual powers pertaining to the pledged stock or any part thereof . . . .”

       Section 5 of the pledge agreement provides in pertinent part: “The following will constitute ‘events of default’ hereunder, namely . . . (C) default by pledgor for five days in the payment of any amount owing under the agreement or the loan when due.”

       Practice Book § 139 provides: “A party seeking equitable relief shall specifically demand it as such, unless the nature of the demand itself indicates that the relief sought is equitable relief.”

       General Statutes § 52-180 (a) provides: “Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible as evidence of the act, transaction, occurrence or event, if the trial judge finds that it was made in the regular course of any business, and that it was the regular course of the business to make the writing or record at the time of the act, transaction, occurrence or event or within a reasonable time thereafter.”

       Section 2 of the pledge agreement, entitled “Remedies,” provides in pertinent part: “If any default shall have occurred and be continuing, in addition to any rights and remedies of a secured party under the Uniform Commercial Code as in effect at the time in Connecticut, the bank may, without being required to give any notice except as hereinafter provided (i) apply the cash, if any, then held by it as collateral hereunder to the payment of the note . . . and (ii) if there shall be no such cash or the cash so applied shall be insufficient to pay in full all such obligations, sell the pledged stock . . .


text:
    ROBERT SIMMONS v. PHILIP BONHOTEL
    (14729)
    Herman, SehaUer and Stoughton, Js.

      Argued October 24, 1995
    decision released February 6, 1996

      David C. Leard, for the appellant (plaintiff).

      Richard T. Stabnick, for the appellee (defendant).
   HEIMAN, J.

The plaintiff appeals from the decision of the compensation review board of the workers’ compensation commission (review board). The review board affirmed the finding and award of dismissal by the workers’ compensation commissioner for the fifth district (commissioner). On appeal, the plaintiff claims that the review board should have vacated the commissioner’s finding and award of dismissal because the commissioner improperly (1) allowed evidence of horseplay, (2) denied the plaintiffs motion to correct, and (3) allowed two continuances of the formal hearing. We affirm the decision of the review board.

The commissioner set out the following relevant facts and procedural history of the case. In 1990, and for approximately four years prior thereto, the plaintiff was employed by the defendant as a lawn maintenance worker. On February 14, 1991, the plaintiff filed a notice of claim with the workers’ compensation commission for the fifth district, alleging that on August 30, 1990, while at work, he injured his back as a result of being sprayed with water. On March 14, 1991, the defendant received the notice of claim. On March 26, 1991, the defendant sent notice to the workers’ compensation commission regarding the alleged injury. In his notice, the defendant stated that he was not present at the time of the alleged injury and suggested that the plaintiff had a preexisting condition.

The commissioner held formal hearings regarding the plaintiffs claim on January 11,1993, April 13,1993, and May 27, 1993. The commissioner heard the following testimony at the hearings. The plaintiff testified that on August 30, 1990, he was working for the defendant at a private estate in Sharon with two other employees of the defendant. The plaintiff identified one of the two employees as the defendant’s son, Philip Bonhotel. Although the plaintiff could not identify the second employee present on that day, the plaintiff testified that Patrick Parmalee, another employee of the defendant, was not the second employee. Furthermore, the plaintiff testified that the defendant was on vacation on that day. The plaintiff testified that while he was driving a tractor in the course of his employment on August 30, 1990, he was sprayed with cold water from a hose held by one of the two employees. The plaintiff claimed that as a result of being sprayed with the cold water, he was caused to suddenly “jilt” or jump off the seat of the tractor. According to the plaintiff, this was the first time that he had ever been sprayed, and he did not know why he was sprayed. The plaintiff asserted, however, that he always encountered problems with the two “kids,” meaning the two coworkers. The plaintiff claimed that a few days after he was sprayed, he noticed pain in his back. The plaintiff testified that he did not report the injury to the defendant because the defendant was on vacation. On cross-examination, however, the plaintiff admitted that he never reported the injury to the defendant, but that his mother did report the injury in early September. The plaintiff continued to perform his regular work until approximately November 19, 1990, when he went to the Sharon Hospital emergency room because the pain started to radiate down his leg.

The medical evidence relating to the plaintiffs claim was as follows. The plaintiff was initially treated by Joseph Hajek, a physician. Hajek diagnosed the plaintiff with a herniated disc in the lower back at the level of L4-L5, and opined, on the basis of the plaintiffs history, that the plaintiff sustained this injury as a result of the incident at work on August 30, 1990. The plaintiff was later referred to another physician, Arnold Rossi, who performed a right L4-L5 disc operation on the plaintiff on April 29,1991. Rossi determined, on the basis of the plaintiffs history, that it was within the realm of medical probability that the plaintiffs disc rupture was solely related to the injury at work in August, 1990. Rossi’s initial evaluation report, however, recited that the plaintiff had a history of having slipped on wet grass, resulting in the onset of low back pain radiating to the plaintiffs right buttock, and that the plaintiff reinjured his back raking leaves in September. The plaintiff denied giving Rossi such a history.

The commissioner also heard testimony from Bonho-tel. Bonhotel testified that on August 30, 1990, he was on vacation with his parents in Maine and had been on vacation for most of August. Bonhotel testified that he did spray the plaintiff with water, but that the incident occurred in mid-July. According to Bonhotel, the other employee present at the mid-July spraying incident was Parmalee. Bonhotel claimed that prior to his spraying the plaintiff with water, the plaintiff had sprayed him and Parmalee with water. Bonhotel also asserted that other spraying incidents had occurred on the job. Furthermore, Bonhotel testified that Parmalee went on vacation at the end of July and that, subsequent to Parmalee’s departure, there were no “young boys” employed by the defendant.

The commissioner also heard testimony from Par-malee. Parmalee testified that he was present when Bonhotel sprayed the plaintiff with water, and that the plaintiff had initiated the spraying. According to Par-malee, such spraying occurred all the time. Parmalee further testified that he left the defendant’s employ as of July 28, 1990, and that on August 30, 1990, he was in school.

The commissioner filed his finding and award of dismissal on July 6, 1993. On the basis of the evidence before him, the commissioner found that the plaintiff did not sustain an injury on August 30, 1990, as alleged in his notice of claim, but that he was involved in an incident in mid-July, 1990, where he initiated the spraying of water, constituting horseplay. The commissioner concluded, therefore, that the plaintiff failed to prove that he sustained an injury to his back that arose out of and in the course of his employment with the defendant. On the basis of these conclusions, the commissioner dismissed the plaintiffs claim. On appeal, the review board affirmed the finding of the commissioner. This appeal followed.

I

The plaintiff claims that the commissioner improperly allowed the defendant to present evidence of horseplay, and, therefore, the review board should have reversed the finding of the commissioner. The plaintiff asserts that the commissioner admitted evidence of horseplay improperly (1) because the defendant did not raise the defense of horseplay in the “pleadings” and (2) because the proffered evidence concerned horseplay incidents that took place prior to the alleged date of injury. The specific evidence that the plaintiff claims should not have been admitted is the testimony of Bon-hotel and Parmalee concerning their involvement in water spraying incidents with the plaintiff, and the testimony of the plaintiff concerning his lack of involvement in water spraying incidents prior to August 30, 1990. We do not agree.

This claim is controlled by General Statutes (Rev. to 1991) § 31-298, which governs the conduct of the commissioner at a workers’ compensation hearing: “[N]o formal pleadings shall be required, beyond any informal notices as the commission approves. In all cases and hearings under the provisions of this chapter, the commissioner shall proceed, so far as possible, in accordance with the rules of equity. He shall not be bound by the ordinary common law or statutory rules of evidence or procedure, but shall make inquiry in such manner, through oral testimony or written and printed records, as is best calculated to ascertain the substantial rights of the parties and carry out justly the spirit of this chapter. . . .” See Delgaizo v. Veeder-Root, Inc., 133 Conn. 664, 667-68, 54 A.2d 262 (1947); Nicotra v. Bigelow, Sanford Carpet Co., 122 Conn. 353, 360, 189 A. 603 (1937).

The plaintiff specifically claimed that he was injured as a result of being sprayed with water by two coworkers on August 30,1990. He testified that he was sprayed by two “kids.” The plaintiff identified one of the two youths as Bonhotel, and was unable to identify the second youth, potentially leaving Bonhotel as the only witness to the occurrence. Thus, the plaintiff raised the issue of horseplay and water spraying, and contended that such water spraying involved Bonhotel and another youngster. In order properly and equitably to determine the cause of the plaintiffs injury, the commissioner was therefore obligated to allow both Bonhotel and the plaintiff to testify about water spraying incidents that may have taken place during the summer of 1990. Bon-hotel identified Parmalee as another young person who worked with the plaintiff during the summer, and it was therefore entirely reasonable for the commissioner to allow Parmalee to testify. Both Bonhotel and Par-malee testified that they were not working with the plaintiff on August 30,1990, the date of the alleged water spraying incident, but that they were able to identify previous water spraying incidents involving the plaintiff, including an incident that took place in July, 1990. The plaintiff denied having been involved in water spraying incidents prior to August 30, 1990. If the commissioner had declined to allow the testimony of the plaintiff, Bonhotel and Parmalee regarding water spraying incidents that may have involved the plaintiff during the summer of 1990, the summer of the alleged injury, then he would have failed in his duty to ascertain the true cause and nature of the plaintiffs injury in accordance with § 31-298. Indeed, after hearing from all of the witnesses, the commissioner determined that the water spraying incident in issue took place in July, 1990, not on August 30, 1990, as the plaintiff had claimed, and that the plaintiff had initiated the water spraying, constituting horseplay. Thus, the commissioner fulfilled his duty to conduct the hearing in an equitable manner. The plaintiffs claim is, therefore, without merit.

II

The plaintiff next claims that the commissioner improperly denied his motion to correct, and, therefore, the review board should have ordered the commissioner to correct the finding. By his motion to correct, the plaintiff sought to have the commissioner add certain facts to his finding. The plaintiff posits that the commissioner was required to add these facts to his finding because the facts were undisputed. We do not agree.

The commissioner made his finding and award of dismissal on July 6, 1993. The commissioner set forth various procedural and factual events relevant to his decision. On July 13, 1993, the plaintiff filed a motion to correct the commissioner’s finding. In his motion to correct, the plaintiff sought to have the commissioner add to his finding several procedural and historical aspects of the case, including the dates of two informal hearings, the date of a pretrial hearing, the date of a notice to all parties from the commissioner regarding an upcoming formal hearing, the names of witnesses who testified at the January 11,1993 formal hearing, and the commissioner’s decision to continue the January 11, 1993 formal hearing to allow additional witnesses to testify. The commissioner denied the motion on July 14, 1993.

We will not change the finding of the commissioner “ ‘unless the record discloses that the finding includes facts found without evidence or fails to include material facts which are admitted or undisputed.’ Wheat v. Red Star Express Lines, 156 Conn. 245, 248, 240 A.2d 859 (1968). ‘It [is] the commissioner’s function to find the facts and determine the credibility of witnesses . . . and a fact is not admitted or undisputed merely because it is uncontradicted.’ . . . Id., 249. A material fact is one that will affect the outcome of the case. See Tutsky v. YMCA of Greenwich, 28 Conn. App. 536, 540, 612 A.2d 1222 (1992).” (Emphasis added.) Tovish v. Gerber Electronics, 32 Conn. App. 595, 599, 630 A.2d 136 (1993), appeal dismissed, 229 Conn. 587, 642 A.2d 721 (1994) (certification improvidently granted).

The commissioner’s determination that the proposed facts were not material to his finding was an exercise of his discretion. Id., 601. We conclude that the commissioner did not abuse his discretion in making this determination. Even if the proposed facts were added to the commissioner’s finding, they would not have been material to his final conclusion that the plaintiffs injury did not arise out of and in the course of employment. The commissioner’s final conclusion was based on the testimony of the witnesses and the medical evidence, not on the procedural history of the case. Therefore, the review board properly concluded that the finding did not require correction because, even if it were corrected as the plaintiff had requested, the commissioner’s ultimate conclusion would not have changed. Id., 599.

Ill

The plaintiffs last claim is that the review board should have determined that the commissioner improperly allowed two continuances of the formal hearing. The plaintiff claims that the commissioner’s continuances of the hearing were each an abuse of his discretion. We do not agree.

The commissioner held the first formal hearing regarding the plaintiffs claim on January 11, 1993. At the conclusion of the January 11, 1993 hearing, the commissioner advised the parties that the hearing would be continued in order to allow additional witnesses to testify, particularly the plaintiffs coworkers. Evidence was taken on April 3, 1993, and May 27, 1993. The additional witnesses included Bonhotel and Parmalee.

In a workers’ compensation case, the commissioner is required to hold a hearing on the matter after giving sufficient notice to the parties. General Statutes § 31-297. As we have noted in this opinion, the commissioner must proceed in an equitable fashion, and “make inquiry in such manner, through oral testimony ... as is best calculated to ascertain the substantial rights of the parties . . . .” General Statutes (Rev. to 1991) § 31-298. Furthermore, “procedural due process is a requirement of adjudicative administrative hearings, including those held before [workers’] compensation commissioners”; Balkus v. Terry Steam Turbine Co., 167 Conn. 170, 177, 355 A.2d 227 (1974); and “no matter shall be decided unless the parties have fair notice that it will be presented in sufficient time to prepare themselves upon the issue.” Osterlund v. State, 129 Conn. 591, 596, 30 A.2d 393 (1943).

Because the plaintiff claimed that he was sprayed with water by two coworkers, and because the commissioner gave the plaintiff ample notice that the hearing would be continued in order to hear the testimony of coworkers who may have taken part in a water spraying incident with the plaintiff during the summer of 1990, the commissioner’s decision to continue the hearing was in accordance with his duties to determine equitably the rights of the parties and to afford due process to the parties. We therefore conclude that the review board correctly determined that the commissioner properly continued the hearing in order to hear additional testimony.

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

In this opinion the other judges concurred.

       The defendant and the defendant’s son have the same name. We hereinafter refer to Bonhotel, Sr., as the defendant and to Bonhotel, Jr., as Bonhotel.

       During the course of the proceedings, the plaintiff filed a motion to preclude the defendant from contesting the compensability of the claim, pursuant to General Statutes (Rev. to 1989) § 31-297 (b). That section requires the defendant to file a disclaimer that sets forth the grounds on which the defendant contests the compensability of the plaintiffs claim. If the defendant does not timely file a legally sufficient disclaimer, then he is precluded from contesting the compensability of the claim. General Statutes (Rev. to 1989) § 31-297 (b). On July 6, 1993, the commissioner also filed his decision denying the plaintiffs motion to preclude. The plaintiff does not claim that the commissioner improperly denied the motion to preclude; see, e.g., Pereira v. State, 228 Conn. 535, 541-42, 637 A.2d 392 (1994); and, therefore, we do not review that ruling. The plaintiffs claims regarding the defendant’s presentation of horseplay evidence in defense of the action address the propriety of the commissioner’s conduct in his role as fact finder. The claims are evidentiary, and we, therefore, treat them as such.

       Generally, injuries resulting from horseplay or skylarking by employees are not compensable under the Workers’ Compensation Act. See Shedlock v. Cudahy Packing Co., 134 Conn. 672, 676, 60 A.2d 514 (1948). Although it is subject to a variety of exceptions, this general rule is most aptly stated in Mascika v. Connecticut Tool & Engineering Co., 109 Conn. 473, 477, 147 A. 11 (1929): “[WJhere an employee indulges in horseplay with his fellow employees during the hours of his employment with resulting injury to himself, his injuries cannot be deemed to have had any causal connection with his employment. In such case he has voluntarily departed from the duties of this employment and embarked upon an enterprise of his own not contemplated by the terms of his employment. His injuries result from his own act and from a condition brought about by himself and not incident to his employment. They have their origin in a risk which he has himself created and which has no causal connection with his employment.”

       The commissioner, however, fined the defendant $1000 for failing to secure workers’ compensation insurance.

       Although the plaintiff raises these two issues separately in his brief, we combine them here because they are essentially two arguments in support of one claim, that is, that the commissioner improperly admitted evidence of horseplay.

       As we indicated, the plaintiff testified that he had never been involved in a water spraying incident prior to August 30, 1990. The plaintiff claims in his brief, however, that the commissioner improperly allowed the defendant’s counsel to question the plaintiff about his involvement in water spraying incidents prior to the alleged date of iiqury. The plaintiff makes this claim despite the fact that when the plaintiff answered the question, he denied being involved in prior water spraying incidents.