author: FOTI, J.

text:
    HARBAJAN SINGH v. CITY OF HARTFORD
    (AC 30228)
    Bishop, Beach and Foti, Js.
    Argued April 22
    officially released July 28, 2009

      Wesley S. Spears, for the appellant (plaintiff).

      Jonathan H. Beamon, assistant corporation counsel, for the appellee (defendant).
   Opinion

FOTI, J.

The sole issue in this appeal is whether the trial court abused its discretion in opening the record after the close of evidence but before the court rendered its decision. The plaintiff, Harbajan Singh, claims that the court improperly granted the motion filed by the defendant, the city of Harford, to open the record after the close of evidence. We disagree and, accordingly, affirm the judgment of the trial court.

The following facts are relevant to our disposition of the plaintiffs appeal. On June 13, 2002, the plaintiff was the high bidder at a tax lien sale for a property located at 233 Capen Street in Hartford. On that date, the plaintiff entered into a contract for the sale of real estate in which he agreed, inter alia, to pay the sum of $45,547.86 for the property. The contract expressly stated that the sale was subject to the requirements of General Statutes § 12-157. One such requirement, as indicated in the contract, was that there existed “a right of redemption by any party who holds a valid interest in the property.” This right of redemption was set to expire six months from the date that the parties entered into the agreement, at 4:30 p.m. on December 12, 2002. Furthermore, the tax collector’s deed was to be lodged in the town clerk’s office but would remain unrecorded until the right of redemption time period had run, at which time the deed would be recorded and have full effect. The contract also included an “as is” clause, in which it stated that the defendant assumed no liability whatsoever in regard to the condition of the property.

On September 29, 2003, the plaintiff filed a complaint in Superior Court in which he alleged that at the time of the transfer of the property on December 13, 2002, the defendant was aware that the property contained asbestos and other hazardous material. Furthermore, he alleged, the defendant’s failure to disclose to the plaintiff that the property contained asbestos and other hazardous material required him to remove and to abate those materials at a considerable cost to him and that their presence also reduced the property’s value substantially. As a result, the plaintiff sought damages. On March 3, 2006, the defendant filed an answer that included a special defense alleging that the plaintiff was estopped from claiming any liability on the part of the defendant that resulted from the transfer of the property because of the “as is” clause included in the contract for sale.

The trial was held before the court, Berger, J., on April 16, 2006. At the outset of the hearing, the court noted that although the courtroom had been filled with witnesses earlier, the parties’ entering into a stipulation of facts obviated the need for their presence. The court then read into the record the stipulated facts. “Number one. The [defendant] made no representations to the plaintiff concerning the existence of asbestos at the commercial property known as 233 Capen Street, Hartford, Connecticut, prior to the transfer of said property to the plaintiff on June 13, 2002 . . . [and] as stated in defendant’s answer, the defendant was aware of the presence of asbestos at said commercial property prior to transfer. Number two. The [defendant] does not dispute the $129,302.06 expended by the plaintiff at the aforementioned property to abate asbestos. Number three. The plaintiff at the time of the transfer understood that the contract provided that the property was being sold, ‘as is’, which the plaintiff signed on June 13,2002. Number four. The only issue [before the court] is whether the term ‘as is’ prevents the plaintiff from prevailing against the city. Number five. [The plaintiff], at the time of the execution of the aforementioned contract, was unaware that said property contained asbestos and he had no access to the property.” The court then ordered the parties to submit briefs and reply briefs on the remaining issue and left open the option for there to be oral argument.

On May 12, 2006, the defendant filed a motion to open the record to allow additional testimony and evidence that it alleged was material and had been omitted by mistake or inadvertence. Subsequently, the defendant filed a memorandum of law in support of its motion, and the plaintiff filed two memoranda in opposition. On July 12, 2006, the court heard oral argument on the matter and granted the motion. A trial to the court thereafter commenced that resulted in a mistrial. On June 11, 2008, the plaintiff filed an amended complaint alleging that the defendant breached the implied covenant of good faith and fair dealing and an express warranty in the deed to the property. A subsequent trial to the court, Hon. Robert F. Stengel, judge trial referee, in which the stipulation of facts at issue here was not admitted into evidence, resulted in judgment in favor of the defendant. This appeal followed. Additional facts will be set forth as necessary.

The plaintiff argues that the court abused its discretion in granting the defendant’s motion to open the record and allowing additional evidence to be offered. Specifically, he argues that the court abused its discretion by not requiring the defendant to identify sufficiently the evidence that it failed to introduce by mistake or inadvertence and by granting, in essence, a new trial to the defendant by allowing additional discovery to take place and the submission of new theories of defense. Also, the plaintiff contends that the court’s permitting the opening of the record resulted in substantial prejudice and was, therefore, an abuse of its discretion. We disagree.

“Whether or not a trial court will permit further evidence to be offered after the close of testimony in the case is a matter resting within its [discretion]. ... In the ordinary situation where a trial court feels that, by inadvertence or mistake, there has been a failure to introduce available evidence upon a material issue in the case of such a nature that in its absence there is serious danger of a miscarriage of justice, it may properly permit that evidence to be introduced at any time before the case has been decided.” (Internal quotation marks omitted.) Grimm v. Grimm, 82 Conn. App. 41, 50, 844 A.2d 855 (2004). “The trial judge’s discretion, which is a legal discretion, should be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice. . . . Consistent with this responsibility, the trial court may not, in light of all the relevant factors, arbitrarily or unreasonably reject a motion to introduce additional evidence after the moving party has rested.” (Internal quotation marks omitted.) In re Janazia S., 112 Conn. App. 69, 88, 961 A.2d 1036 (2009). “Such a reopening should not be permitted if it would result in substantial prejudice to a party.” (Internal quotation marks omitted.) Fahey v. Safeco Ins. Co. of America, 49 Conn. App. 306, 315-16, 714 A.2d 686 (1998). Last, we note that “[i]n reviewing a trial court’s action for an abuse of discretion, every reasonable presumption should be given in favor of its correctness. ... In determining whether there has been an abuse of discretion, the ultimate issue is whether the court could reasonably conclude as it did. [R]eversal is required [only] where the abuse is manifest or where injustice appears to have been done.” (Internal quotation marks omitted.) New Hartford v. Connecticut Resources Recovery Authority, 291 Conn. 433, 477-78, 970 A.2d 592 (2009). With these precepts in mind, we turn to the plaintiffs claim on appeal.

First, our review of the record reveals that despite the plaintiffs claim to the contrary, the defendant did identify sufficiently the evidence it sought to admit. Although not specifically stated as such, we take this argument by the plaintiff to mean that because the defendant failed to identify the proffered evidence sufficiently, the court’s granting the motion to open the record was not predicated on available evidence on a material issue; see Grimm v. Grimm, supra, 82 Conn. App. 50; and, therefore, was an abuse of discretion.

In both its memorandum in support of its motion and in oral argument, the defendant identified the omitted evidence. The defendant contended that on July 12, 2002, during the six month right of redemption period, two inspectors from the defendant’s department of licenses and inspections witnessed the plaintiff at the property removing materials therefrom. It also claimed that these materials included asbestos and other hazardous materials and that the plaintiff was cited by the state department of environmental protection. The defendant claimed that that evidence was relevant to material issues because it directly contradicted the stipulated facts as to (1) the accessibility of the property to the plaintiff prior to its transfer to him; (2) the date of the transfer of the property; (3) the plaintiffs removal of asbestos from the premises before its transfer to him and, therefore, his knowledge of its presence; and (4) the timing of the defendant becoming aware of the presence of asbestos. The defendant further claimed that the evidence was available because it was discovered when its inspectors found the plaintiff at the property removing debris on July 12, 2002.

The plaintiff, rather than arguing that the evidence did not bear on a material issue, contended that the proffered omitted evidence was not credible and offered documentary evidence to support that position. Therefore, the plaintiff contended, because the evidence proffered by the defendant was incredible, it had not actually proffered to the court any evidence regarding a material issue that had been omitted by mistake or inadvertence. Our Supreme Court has stated that a material issue of fact is one that “will make a difference in the result of the case.” (Internal quotation marks omitted.) Hammer v. Lumberman’s Mutual Casualty Co., 214 Conn. 573, 578, 573 A.2d 699 (1990). It is clear from a reading of the stipulated facts and the record available to the court in contemplation of the defendant’s motion to open the record, that the proffered evidence would have made a difference in the result of the case. It directly contradicted several material aspects of the stipulated facts, including, among others, the plaintiffs access to the property during the redemption period. Moreover, the court specifically stated that the parties had each, in their motions “given [it] enough [proof] that there was [omitted] evidence out there.” Therefore, we cannot say that the court abused its discretion in determining that the evidence proffered by the defendant was on issues material to the case.

Next, the plaintiff claims that the court abused its discretion in opening the record because it “allowed the defendant to start the case all over, including . . . conducting discovery and submitting entirely new theories of defense.” At the hearing, the defendant stated that it was only seeking to place into evidence exhibits and testimony “to the effect that whatever the [defendant] learned [about the asbestos at the property], it learned [it] on the day that [the plaintiff] entered the building and two city inspectors found him there.” As a result, the defendant requested only that it be allowed to depose the plaintiff. The court, underscoring that the defendant had requested taking one deposition, asked the plaintiff, “[w]ould you like anything?” The plaintiff responded: “I want to start over now .... I’m going to do interrogatories [and] I’m going to take a bunch of depositions.” The court then asked the plaintiff if he wanted to hold a pretrial scheduling conference. The plaintiff responded in the affirmative. In short, it was the plaintiff, in response to the court’s granting the motion, that requested that the trial start anew. The court, after considering the point to which its decision to open the evidence would possibly extend, concluded that to do so was in the interest of justice. We cannot conclude, under these circumstances, that the court abused its broad discretion in opening the evidence to the extent that it did.

Last, the plaintiff contends that the court’s permitting the opening of the record resulted in substantial prejudice to him and was, therefore, an abuse of the court’s discretion. Essentially, the plaintiff asserts that the opening of the record and allowing further introduction of evidence that contradicted many of the stipulation’s aspects, resulted in substantial prejudice. The plaintiff contended at the hearing that the stipulation of facts inured greatly to his benefit, a point the court noted in its oral decision. That the plaintiff was prejudiced by the court’s decision is evidenced on the record; however, the question remains whether the court abused its discretion in determining that the prejudice was not substantial. See Fahey v. Safeco Ins. Co. of America, supra, 49 Conn. App. 315-16 (opening evidence should not be permitted if result is substantial prejudice to a party). We note, nevertheless, that the ultimate source of the plaintiffs prejudice, the stipulation itself—by way of its ostensible ruin as the sole set of facts upon which the court would decide—was also the source of the danger of a miscarriage of justice that the court was seeking to avoid by granting the defendant’s motion to open the evidence. The record reveals that the court took into account the prejudice that resulted from its decision and attempted to ameliorate some aspects of it by stating that it would consider assessing reasonable costs and fees to the defendant. In an effort to further minimize the prejudice, the court was solicitous of the plaintiffs request to conduct many aspects of discovery. The court’s merely allowing the plaintiff the opportunity to submit more evidence, as well, served to lessen any prejudice that may have resulted from the ruling. Moreover, the court considered the defendant’s proffered evidence in light of the stipulation, the plaintiffs assertions as to the credibility of the proffered evidence, as well as the circumstances involving its omission and determined that any prejudice visited on the plaintiff by its decision was not substantial because the interest in avoiding the danger of a serious miscarriage of justice outweighed it. On the basis of the record before us, we conclude that the court reasonably concluded as it did and, therefore, did not abuse its discretion in granting the defendant’s motion to open the evidence. See New Hartford v. Connecticut Resources Recovery Authority, supra, 291 Conn. 478.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff filed an appeal with this court on July 16, 2007, challenging the trial court’s granting of the motion but withdrew it on October 12, 2007, because it was not taken from an appealable final judgment.

       The plaintiff asserts on appeal that many of his witnesses could not be located for the subsequent proceedings. This argument was not made to the court at the time of the hearing on the defendant’s motion to open the record. Moreover, this fact was not only unknown but unknowable at that time. We cannot say that the court abused its discretion on the basis of information that was neither presented to the court, nor could have been presented under the circumstances. See State v. Saunders, 114 Conn. App. 493, 504, 969 A.2d 868, cert. denied, 292 Conn. 917, 973 A.2d 1277 (2009).


source: Caselaw Access Project

author: FLYNN, C. J.

license: Public Domain

text:
    LOUIS D. CORNEROLI v. LOUIS S. D’AMICO, COADMINISTRATOR (ESTATE OF SALVATORE D. D’AMICO), ET AL.
    (AC 30237)
    Flynn, C. J., and Lavine and Hennessy, Js.
    Argued May 27
    officially released July 28, 2009

      Ronald W. Kutz, for the appellant (plaintiff).

      Jay B. Weintraub, with whom, on the brief, were Eric H. Rothauser, John L. Bonee III and Kathleen E. Rallo, law clerk, for the appellees (defendants).
   Opinion

FLYNN, C. J.

The plaintiff, Louis D. Comeroli, appeals from the judgment of the trial court dismissing his appeal from an order of the Probate Court for lack of subject matter jurisdiction. The court concluded that pursuant to General Statutes § 45a-186 (a), as amended by Public Acts 2007, No. 07-116, § 2 (P.A. 07-116), the plaintiffs appeal was untimely, as it was filed more than thirty days after the mailing of the order of the Probate Court from which it was taken. On appeal, the plaintiff claims that the trial court improperly dismissed his appeal because (1) he correctly commenced his appeal by filing a motion for permission to appeal in the Probate Court and (2) § 45a-186 (b) and (d) contain language that would save his appeal. We disagree. We conclude that in enacting P.A. 07-116, the General Assembly repealed the requirement that a motion to appeal be filed with the Probate Court. Instead, newly enacted provisions of law require that a probate appeal be commenced by filing a complaint with the clerk of the Superior Court within thirty days of the mailing of the order from which the appeal is taken. We further conclude that because the plaintiff did not file his appeal until at least sixty-eight days after notice of the order had been mailed to him, it was filed at least thirty-eight days too late and was properly dismissed. Accordingly, we affirm the judgment of the trial court.

The record reveals the following facts. The plaintiff filed a claim in the Probate Court dated August 23,2007, against the estate of his cousin, Salvatore D. D’Amico (decedent). The plaintiff sought a share of a $2.4 million settlement that the estate had received in December, 2006, concerning the sale of a John Singer Sargent painting. The decedent had purchased the painting at some point in 1978 for $3 and, until the time of his death in the early 1990s, unsuccessfully had attempted to have it authenticated. Following the decedent’s death, the painting was authenticated, and its sale realized multiple millions of dollars. The plaintiff alleged that at some point, he and the decedent had formed a partnership, and that, as a result, he was entitled to 50 percent of the proceeds from the eventual sale of the painting. The defendants, Louis S. D’Amico and Rita D. Willis, the administrators of the estate, disputed the plaintiffs allegations and filed a motion to disallow his claim. Following briefing and healing of the matter, the Probate Court issued an order dated February 28, 2008, granting the defendants’ motion. The court concluded that, even if it assumed that the partnership alleged by the plaintiff existed, the settlement funds were not a partnership asset against which the plaintiff could make a claim.

The court’s order was mailed sometime on or prior to March 28,2008, as on that date, the plaintiffs attorney received notice of the order. On April 24, 2008, the plaintiff filed a motion for permission to appeal with the Probate Court. On June 4, 2008, the plaintiff filed in the Superior Court an appeal from the order of the Probate Court. The defendants moved to dismiss the appeal for lack of subject matter jurisdiction, claiming that under § 45a-186, the appeal was untimely. On August 6, 2008, the court found that the Middletown Probate Court sent notice of its decision on March 27, 2008, but that the plaintiff did not file his appeal with the Superior Court until June 4, 2008. The court granted the motion to dismiss for lack of subject matter jurisdiction due to the untimely filing of the appeal, and the plaintiff thereafter commenced the present appeal.

Prior to addressing the plaintiffs claims, we set forth our well settled standard of review for a motion to dismiss. A motion to dismiss attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court. Heussner v. Hayes, 289 Conn. 795, 802, 961 A.2d 365 (2008). Appellate review of such a matter addresses a question of law over which our review is plenary. Id. The plaintiffs claims require us to construe § 45a-186 and, thus, present an issue of statutory interpretation. “The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extra-textual evidence of the meaning of the statute shall not be considered.” General Statutes § l-2z.

I

The plaintiff first claims that the court improperly dismissed his appeal for lack of subject matter jurisdiction because he timely filed a motion for permission to appeal in the Probate Court. He argues that the amendments to § 45a-186 found in P.A. 07-116 did not specifically remove the requirement that such a motion be filed. Moreover, he maintains, the previous requirement of a motion for permission to appeal was never a statutory requirement but was a matter of common law. Therefore, he contends that, as the amended statute does not directly state that such case law is overruled, the requirement still must be in effect.

We disagree with the plaintiffs contention that his right of appeal was governed by the common law. The right to appeal from a decision of the Probate Court is statutory. Satti v. Rago, 186 Conn. 360, 364, 441 A.2d 615 (1982); Sacksell v. Barrett, 132 Conn. 139, 146, 43 A.2d 79 (1945); R. Folsom, Connecticut Estates Practice, Probate Litigation (2d Ed. 2008) § 7:1, p. 7-2. “Our legislation has always favored the speedy settlement of estates, and to that end has carefully limited the time within which such appeals [from probate] must be taken. ... It is a familiar principle that a court which exercises a limited and statutory jurisdiction is without jurisdiction to act unless it does so under the precise circumstances and in the manner particularly prescribed by the enabling legislation. . . . Our courts of probate have a limited jurisdiction and can exercise only such powers as are conferred on them by statute. . . . They have jurisdiction only when the facts exist on which the legislature has conditioned the exercise of their power. . . . The Superior Court, in turn, in passing on an appeal, acts as a court of probate with the same powers and subject to the same limitations. ... In acting on an appeal from probate, the Superior Court does not exercise the jurisdictional powers vested in it by the constitution but, instead, exercises a special and limited jurisdiction conferred on it by the statutes.” (Citations omitted; internal quotation marks omitted.) Heiser v. Morgan Guaranty Trust Co., 150 Conn. 563, 565-66, 192 A.2d 44 (1963).

We first review the method of appeal from probate in existence prior to October 1, 2007. The plaintiff is correct that prior to October 1, 2007, an appeal from a judgment of a Probate Court was commenced by motion to that court. Although no particular form was prescribed for the motion, it was, nonetheless, a requisite step in the appeal process. See Fuller v. Marvin, 107 Conn. 354, 356, 140 A. 731 (1928); R. Folsom, supra, § 7:5, p. 7-20. General Statutes § 45a-191, which was repealed by P.A. 07-116, provided that such motion must state the interest of the appellant, unless that interest appeared on the face of the proceedings and the record of the Probate Court. General Statutes § 45a-192, also repealed by P.A. 07-116, required the Probate Court to issue an order specifying the notice to be given by the appellant to interested persons. Prior to the amendments of P.A. 07-116, § 45a-186 (a) provided that “[a]ny person aggrieved by any order, denial or decree of a court of probate in any matter, unless otherwise specially provided by law, may appeal therefrom to the Superior Court in accordance with subsection (b) of this section. . . .” Subsection (b) of § 45a-186 provided that such appeals would be filed “in the superior court for the judicial district in which such court of probate is located . . . .” An appeal such as the plaintiffs in the present case had to be filed within thirty days. General Statutes § 45a-187 (a).

We next contrast the method and manner now required to appeal from an order of the Probate Corut issued after October 1, 2007. Section 45a-186 (a), as amended by P.A. 07-116, provides in relevant part that “[a]ny person aggrieved by any order, denial or decree of a corut of probate in any matter, unless otherwise specially provided by law, may . . . not later than thirty days after mailing of an order, denial or decree . . . appeal therefrom to the Superior Court. Such an appeal shall be commenced by filing a complaint in the superior court in the judicial district in which such court of probate is located .... A copy of the order, denial or decree appealed from shall be attached to the complaint. . . .” (Emphasis added.) Following the 2007 amendments, subsection (b) of § 45a-186 now provides: “Each person who files an appeal pursuant to this section shall serve a copy of the complaint on the court of probate that rendered the order, denial or decree appealed from and on each interested party. The failure of any person to make such service shall not deprive the Superior Court of jurisdiction over the appeal. . . .”

The meaning of § 45a-186 (a), as amended by P.A. 07-116, ascertained both from its text and in relation to other statutes, is plain and unambiguous. It provides that an appeal of an order of the Probate Court is commenced by filing a complaint in the Superior Court. A complaint is filed when it is lodged with the clerk of the court. See Rios v. CCMC Corp., 106 Conn. App. 810, 820, 943 A.2d 544 (2008). The significant changes to this statute, brought about by passage of P.A. 07-116, coupled with the simultaneous repeal of §§ 45a-191 and 45a-192, the only statutes that referred to the previous practice of filing a motion for permission to appeal with the Probate Court, reveal a clear legislative intention to consolidate and even to simplify and to clarify the probate appeal process. In amending the statute, the legislature eliminated any previous requirement that an aggrieved party file a motion for permission to file an appeal with the Probate Court to commence his appeal.

The plaintiffs argument presumes that, despite the plain language of § 45a-186 (a), as amended, the legislature intended no change to the preexisting procedure in probate appeals. However, in interpreting the actions of the legislature, we presume instead that “in enacting a statute, the legislature intended a change in existing law.” (Internal quotation marks omitted.) Middlebury v. Dept. of Environmental Protection, 283 Conn. 156, 173, 927 A.2d 793 (2007). Such presumption “may be rebutted by contrary evidence of the legislative intent in the particular case.” (Internal quotation marks omitted.) Id. The plaintiff presents no compelling argument to rebut the presumption that the legislature, in passing P.A. 07-116, intended to change the process by which appeals from the Probate Court are taken.

II

The plaintiff also claims that § 45a-186, as amended, contains provisions that nonetheless would save his appeal. He cites the language of subsection (b) of the statute, which provides in relevant part that “[e]ach person who files an appeal pursuant to this section shall serve a copy of the complaint on the court of probate that rendered the order, denial or decree appealed from and on each interested party. The failure of any person to make such service shall not deprive the Superior Court of jurisdiction over the appeal. . . .” General Statutes § 45a-186 (b). The plaintiff argues that the “broad language” of this subsection “clearly leaves an open door for keeping an appeal alive” in that it allows for “serving not only additional parties, but any party . . . .” He maintains that the language indicates that “service appears to not be that material,” rendering the idea that the trial court in the present case would be deprived of subject matter jurisdiction “inherently inaccurate.”

In addition, the plaintiff cites § 45a-186 (d), which provides that “[i]f service has not been made on an interested party, the Superior Court, on motion, shall make such orders of notice of the appeal as are reasonably calculated to notify any necessary party not yet served.” Characterizing this subsection as a “rather broad, remedial clause,” the plaintiff argues that he is a “necessary party” and, thus, may “be cited in.”

These arguments merit little discussion. Section 45a-186 (b) refers to any “person who files an appeal pursuant to this section,” that is, § 45a-186. As we discussed previously, subsection (a) plainly states the procedure for commencement of such an appeal through the filing of a complaint in the Superior Court. Therefore, subsection (b) merely provides that a person filing a probate appeal has a duty to serve a copy of the complaint on the Probate Court that issued the challenged order and on any interested party but that if he had “filed” timely with the Superior Court, his failure to serve other parties would not deprive the court of jurisdiction. To adopt the plaintiffs argument would mean that subsections (a) and (b) provide for a separate and parallel procedure for filing an appeal from the Probate Court. Such an unnecessary and illogical result could not have been intended by the legislature.

The plaintiffs argument regarding subsection (d) equally is unavailing. To follow the logic of the argument would lead to the incoherent conclusion that the trial court could order that notice of the complaint in a probate appeal be provided to the party who initiated an untimely appeal to render an untimely appeal timely. Such an interpretation would render the thirty day time limit found in § 45a-186 (a) for filing an appeal from a Probate Court order meaningless. A party appealing to the Superior Court from the Probate Court is required to commence the appeal by filing it with the Superior Court clerk within thirty days of the order, denial or decree of the Probate Court. Failure to do so deprives the Superior Court of subject matter jurisdiction and renders such an untimely appeal subject to dismissal.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 45a-186 (a), as amended by Public Acts 2007, No. 07-116, § 2, provides in relevant part: “Any person aggrieved by any order, denial or decree of a court of probate in any matter, unless otherwise specially provided by law, may . . . not later than thirty days after mailing of an order, denial or decree . . . appeal therefrom to the Superior Court. Such an appeal shall be commenced by filing a complaint in the superior court in the judicial district in which such court of probate is located . . . .” The amendments to P.A. 07-116 were effective as of October 1, 2007.

       The plaintiff also points out that the title of P.A. 07-116 is “An Act Concerning Conservators and Appeals of Conservatorships and Guardian-ships” and argues that the statutory changes contained therein are “focused primarily on addressing concerns that have been raised with the appointment of conservators and the actions of conservators as well as the rights of their wards." We understand that the title of this act might mislead a reader; however, the content of the act could not. In describing the proper consideration of statutory titles in the process of interpreting statutes, our Supreme Court has stated: “Where there is ambiguity in the wording of a statute, the title of the legislation is an aid to statutory construction. . . . But if the language is clear and not subject to interpretation, titles are of less significance.” (Citations omitted.) Algonquin Gas Transmission Co. v. Zoning Board of Appeals, 162 Conn. 50, 55, 291 A.2d 204 (1971). The statute in question here is not ambiguous. Section two of P.A. 07-116 amended § 45a-186 (a) to specify clearly that an appeal from a Probate Court order “shall be commenced by filing a complaint in the superior court in the judicial district in which such court of probate is located . . . .” The title of the public act bears no significance in our interpretation of this provision.


author: BEACH, J.

text:
    KATHLEEN SOPHIA v. CITY OF DANBURY ET AL.
    (AC 29740)
    Harper, Beach and Dupont, Js.
    Argued January 7
    officially released July 28, 2009

      Jerry V. Leaphart, for the appellant (plaintiff).

      Michael J. Rose, with whom, on the brief, was Johanna G. Zelman, for the appellee (named defendant).
   Opinion

BEACH, J.

In this action claiming retaliation by her employer, the plaintiff, Kathleen Sophia, appeals from the judgment of the trial court rendered after it denied her motion in arrest of judgment or to set aside the verdict in favor of the defendant city of Danbury. On appeal, the plaintiff claims that the court improperly instructed the jury by including elements of constructive discharge within the retaliation claim. We disagree and affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the plaintiffs appeal. After receiving the statutorily required release from the commission on human rights and opportunities (commission); see General Statutes §§ 46a-100 and 46a-101; the plaintiff brought a complaint pursuant to General Statutes § 46a-60 (a) (1) et seq. In her complaint, the plaintiff alleged five counts of improper employment practices. In the retaliation count, the plaintiff claimed that as a result of her having filed a complaint with the commission, the defendant retaliated against her, and she was forced to take early retirement. The defendant filed a motion for summary judgment as to all counts of the complaint. The court granted the motion as to all counts except the retaliation count.* *

With respect to the retaliation count, the court instructed the jury that to prevail, the plaintiff must prove that she participated in a protected activity, knowledge by the defendant of such participation, an employment action disadvantaging the plaintiff, claimed here to be constructive discharge, and a causal connection between the protected activity and the adverse employment action. The court submitted interrogatories to the jury that mirrored these instructions. The interrogatories permitted the jury to find in favor of the plaintiff only on the basis of retaliation. For the jury to find that the plaintiff proved the element of adverse employment action, the jury had to find that the defendant made her working conditions so intolerable that a reasonable person in her situation would have deemed that leaving her employment was her only reasonable alternative.

The jury returned a defendant’s verdict. The interrogatory answers reflected that the plaintiff had proved that she had participated in a protected activity and that the defendant knew of her participation. The jury also indicated in its answers that the plaintiff had proved that the defendant had made her working conditions so intolerable that a reasonable person in her situation would have deemed that leaving her employment was her only reasonable alternative but found that the plaintiff had not proved causation.* * The plaintiff filed a motion in arrest of judgment or to set aside the verdict, which the court denied. This appeal followed. Additional facts will be set forth as necessary.

We set forth our standard of review. “Our standard of review concerning preserved claims of improper jury instruction is well settled. . . . When reviewing [a] challenged jury instruction . . . we must adhere to the well settled rule that a charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts. . . . [T]he test of a court’s charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. ... As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury . . . we will not view the instructions as improper. ... A court’s failure to charge precisely as proposed by a party is not improper when the point is fairly covered in the charge. . . . Instructions are adequate if they give the jury a clear understanding of the issues and proper guidance in determining those issues.” (Citations omitted; internal quotation marks omitted.) Al-Janet, LLC v. B & B Home Improvements, LLC, 101 Conn. App. 836, 840, 925 A.2d 327, cert. denied, 284 Conn. 904, 931 A.2d 261 (2007).

“[A] trial court has broad discretion to regulate the manner in which interrogatories are presented to the jury, as well as their form and content. . . . Sound discretion, by definition, means a discretion that is not exercised arbitrarily or wilfully, but with regard to what is right and equitable under the circumstances and the law .... And [it] requires a knowledge and understanding of the material circumstances surrounding the matter .... In our review of these discretionary determinations, we make every reasonable presumption in favor of upholding the trial court’s ruling.” (Citations omitted; internal quotation marks omitted.) Emerick v. Kuhn, 52 Conn. App. 724, 745, 737 A.2d 456, cert. denied, 249 Conn. 929, 738 A.2d 653, cert. denied sub nom. Emerick v. United Technologies Corp., 528 U.S. 1005, 120 S. Ct. 500, 145 L. Ed. 2d 386 (1999).

The plaintiff claims that the court improperly combined elements of “constructive discharge” with elements of “retaliation” in its jury instructions and jury interrogatories. The plaintiff takes issue with jury interrogatory number three, which asks, with respect to the retaliation claim, “do you find that the plaintiff has proven by a preponderance of the evidence that the defendant made her working conditions so intolerable that a reasonable person in her situation would have deemed that leaving her employment was her only alternative?” She also apparently takes issue with the portion of the court’s instruction on retaliation that states that to find the defendant liable for retaliation, the jury must find, inter alia, that there was an adverse employment action, namely, that the plaintiff was “constructively discharged.” The plaintiff argues that “the elements that would have satisfied the requirements for liability for a cause of action for constructive discharge were improperly combined with those of a separate cause of action for retaliation. As a practical matter, then, the plaintiff had to prove two separate claims for one finding of liability.” We disagree.

The plaintiffs argument apparently assumes, notwithstanding the fact that her complaint was brought pursuant to § 46a-60 et seq., that there is an independent common-law cause of action for “constructive discharge” and that liability for such cause of action is encompassed entirely within jury interrogatory number three. According to its answer to interrogatory number three, the jury found that the defendant had constructively discharged the plaintiff. A fundamental problem with the plaintiffs argument is that no such independent cause of action exists. For a plaintiff to prevail on a claim alleging a constructive discharge under Sheets v. Teddy’s Frosted Foods, Inc., 179 Conn. 471, 480, 427 A.2d 385 (1980), she must prove not only constructive discharge, but also causation: that is, that the discharge occurred for a reason violating public policy. Accordingly, the plaintiffs argument—that the court committed harmful error by including within the elements of retaliation, an entirely separate cause of action and that such cause of action itself was proved—must fail. The court did not include within the retaliation count elements of a separate cause of action in its jury instructions and jury interrogatories. To address the plaintiffs argument further would require us to rule on a hypothetical situation, which we will not do. See Rinaldi v. Enfield, 82 Conn. App. 505, 515, 844 A.2d 949 (2004) (“[j]urisprudential considerations require that we address the case before us and refrain from ruling on hypothetical situations”). The court did not err in including within its jury instructions and jury interrogatories on retaliation the element of constructive discharge.

The judgment is affirmed.

In this opinion the other judges concurred.

       The complaint also named the Danbuiy police department as a defendant. The action as to the Danbury police department was withdrawn. We therefore refer in this opinion to the city of Danbury as the defendant.

       The plaintiff framed the issues in her brief in terms of instructional error and does not expressly claim that the court’s denial of her motion in arrest of judgment or to set aside the verdict was improper.
      In support of her argument regarding instructional error, the plaintiff included in the appendix to her brief an e-mail that was sent by a juror to the plaintiffs trial counsel following trial. The e-mail arguably concerns the deliberative process of the jury. The plaintiff argues that this e-mail supports her claim that the court’s instructions were improper and constituted harmful error. It has long been the rule in our courts to presume the regularity of the deliberation processes of the jury and to decline to inquire into those deliberative processes once the jury has returned a verdict. Monti v. Wenkert, 287 Conn. 101, 115, 947 A.2d 261 (2008); see Practice Book § 16-34 (“Upon an inquiry into the validity of a verdict, no evidence shall be received to show the effect of any statement, conduct, event or condition upon the mind of a juror nor any evidence concerning mental processes by which the verdict was determined. ... [A] juror’s testimony or affidavit shall be received when it concerns any misconduct which by law permits a jury to be impeached.”). There has been no claim of jury misconduct. Therefore, this e-mail ought not be considered.

       The plaintiff has not claimed that the court’s decision regarding the motion for summary judgment was improper.

       With respect to the retaliation claim, the court instructed the jury: “It is the plaintiffs burden to prove to you, as the jury, by a fair preponderance of the evidence, that it is more probable than not that she elected to retire because the [defendant] made her working conditions so intolerable and in retaliation for her claim to the commission . . . that she had no choice but to retire. In order for you to find in favor of the plaintiff, you must find that she has proven four essential elements by a fair preponderance of the evidence: (A) . . . The plaintiff must prove that she filed a claim with the commission ... in good faith. The parties have stipulated [that] the plaintiff satisfied this element, and, therefore, you are instructed that you must accept this fact as true. (B) . . . Next, the plaintiff must prove that the defendant knew that she filed the claim with the [commission] before the defendant did anything to retaliate against her. . . (C) Adverse employment action. An action is an adverse employment action if a reasonable employee would have found the action materially adverse, which means [that] it might have dissuaded a reasonable worker from making or supporting a charge of discrimination. . . . (D) Causal connection. ... If you find that the plaintiff was constructively discharged, you must next determine causation. In other words, you must determine if, in fact, the defendant intentionally forced the plaintiff to retire because she filed a complaint with the [commission]. The plaintiff must prove to you by a preponderance of the evidence that the circumstances surrounding her retirement justify an inference of retaliatory motive. The plaintiff must prove that the fact that she filed a complaint with the [commission] was a, quote, motivating factor, closed quote, in the [defendant’s] conduct. A, quote, motivating factor, closed quote, is one that played a substantial part in the defendant’s conduct. In other words, the plaintiffs evidence must show that but for her filing a complaint with the [commission], she would not have been forced to retire.”

       The interrogatories submitted to the jury were: “1. Do you find that the plaintiff engaged in protected activity by filing a complaint with the [c]ommission ... on February 10, 2003? (This has been stipulated to by the parties) ... 2. Do you find that the defendant, through one or more of its agents, servants or employees in a supervisory capacity had knowledge of the plaintiffs complaint to the [commission ... on or after February 10, 2003? ... 3. If your answer to Question 2 is ‘yes,’ do you find that the plaintiff has proven by a preponderance of the evidence that the defendant made her working conditions so intolerable that a reasonable person in her situation would have deemed that leaving her employment was her only alternative? ... 4. If your answers to Questions 2 and 3 are ‘yes,’ do you find that the plaintiff has proven by a preponderance of the evidence that the defendant intentionally retaliated against the plaintiff and made her working conditions intolerable because she filed a complaint with the [c]om-mission ... on February 10, 2003? ... 5. If your answers to Questions 2, 3, and 4 are ‘yes,’ do you find that the plaintiff has proven by a preponderance of the evidence that the intolerable working conditions caused her to apply for early retirement on February 20, 2003? ... If your answer to any of the above questions 2, 3, 4 and 5 above is ‘no’ then your verdict must be for the defendant. . . .” The jury answered “yes” to the first three questions and answered “no” to the fourth question.

       See footnote 4.

       The plaintiffs argument at times is difficult to understand. The plaintiff seems to claim that she could have proved liability by proving only a con-st ructive discharge without necessarily a causal link to the protected activity. The plaintiff does not appear to contest that causation is an element of a “retaliation” cause of action.

       See footnote 4 for the court’s instruction on retaliation.

       The plaintiffs argument is somewhat unclear as to whether she is claiming that the “constructive discharge” cause of action is statutory or based on common law. Under the circumstances, it does not matter which is being claimed. We note that the answer to jury interrogatory number three alone is insufficient to establish liability under § 46a-60 (a) (4), which also requires causation. Section 46a-60 (a) provides in relevant part: “It shall be a discriminatory practice in violation of this section ... (4) For any person, employer, labor organization or employment agency to discharge, expel or otherwise discriminate against any person because such person has opposed any discriminatory employment practice or because such person has filed a complaint or testified or assisted in any proceeding under section 46a-82, 46a-83 or 46a-84 . . . .”

       “In Sheets v. Teddy’s Frosted Foods, Inc., [supra, 179 Conn. 480] . . . [our Supreme Court] sanctioned a common law cause of action for wrongful discharge in situations in which the reason for the discharge involved impropriety . . . derived from some important violation of public policy.” (Citation omitted; internal quotation marks omitted.) Parsons v. United Technologies Corp., 243 Conn. 66, 76, 700 A.2d 655 (1997). A termination of employment by an employer may be express or constructive. “Constructive discharge occurs when an employer renders an employee’s working conditions so difficult and intolerable that a reasonable person would feel forced to resign. . . . Through the use of constructive discharge, the law recognizes that an employee’s ‘voluntary’ resignation may be, in reality, a dismissal by the employer.” (Citations omitted; internal quotation marks omitted.) Seery v. Yale-New Haven Hospital, 17 Conn. App. 532, 540, 554 A.2d 757 (1989).
      “Wrongful constructive discharge” is a form of wrongful discharge. See id. It logically follows that a claim for wrongful constructive discharge is actionable only where a claim for express discharge would be actionable in the same circumstances. Whether express or constructive, “[a] cognizable claim for wrongful discharge requires the plaintiff to establish that the employer’s conduct surrounding the termination of the plaintiffs employment violated an important public policy.” Carnemolla v. Walsh, 75 Conn. App. 319, 323 n.5, 815 A.2d 1251, cert. denied, 263 Conn. 913, 821 A.2d 768 (2003). “A constructive discharge in and of itself will not entitle an at will employee to prevail on a cause of action brought under [the public policy exception to the at will employment doctrine in] Sheets, however, because the employee must still prove that the dismissal, in whatever form, occurred for a reason violating public policy. See Morris v. Hartford Courant Co., [200 Conn. 676, 679, 513 A.2d 66 (1986)].” Seery v. Yale-New Haven Hospital, supra, 17 Conn. App. 540.


author: ROBINSON, J.

text:
    STATE OF CONNECTICUT v. KIRBY L. BARNES
    (AC 29244)
    Harper, Beach and Robinson, Js.
    Argued January 5
    officially released July 28, 2009

      Christopher Y. Buby, special public defender, for the appellant (defendant).

      Robin S. Schwartz, assistant state’s attorney, with whom, on the brief, were Michael Bearington, state’s attorney, James R. Turcotte, supervisory assistant state’s attorney, and Seth R. Garbarsky, assistant state’s attorney, for the appellee (state).
   Opinion

ROBINSON, J.

The defendant, Kirby L. Bames, appeals from the judgment of the trial court finding him in violation of probation pursuant to General Statutes § 53a-32. On appeal, the defendant claims that the court violated his constitutional right to due process by failing to state specifically the basis of its conclusion that his probationary status should be revoked. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the defendant’s appeal. On July 12, 2002, the defendant was sentenced to three years imprisonment, execution suspended, and three years probation after being found guilty of the sale of narcotics by a person who is not drug-dependent in violation of General Statutes § 2 la-278 (b). On April 14, 2004, the defendant was charged with, and subsequently convicted of, a violation of probation for operating a motor vehicle while his driver’s license was under suspension. He did not serve time in jail as a result of this violation of probation; however, he did receive a one year extension of the probation period stemming from his original conviction. On December 30, 2005, within the extended probationary period, the defendant was arrested on a charge of possession of narcotics with intent to sell. Thereafter, the defendant was charged with a second violation of probation pursuant to § 53a-32.

The violation of probation hearing was conducted on March 12, 2007. Following the presentation of evidence and the closing of arguments, the court found that the state had sustained its burden of proof to establish the violation of probation. Thereafter, the court revoked the defendant’s probation and committed him to the custody of the commissioner of correction to serve the remaining three years of his previously suspended sentence of incarceration. This appeal followed.

The defendant’s only claim on appeal is that he has been denied his constitutional right to due process because the court failed to conduct the dispositional stage of the revocation of probation proceeding. He acknowledges that this claim was not preserved properly; however, he seeks review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or the plain error doctrine. See Practice Book § 60-5.

“Under Golding, a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. ... In the absence of any one of these conditions, the defendant’s claim will fail. The appellate tribunal is free, therefore, to respond to the defendant’s claim by focusing on whichever condition is most relevant in the particular circumstances.” (Citation omitted; emphasis in original; internal quotation marks omitted.) State v. Hobson, 68 Conn. App. 40, 47, 789 A.2d 557, cert. denied, 260 Conn. 910, 796 A.2d 557 (2002).

On appeal, the defendant claims that he was denied due process at his revocation of probation hearing. “Probation revocation proceedings fall within the protections guaranteed by the due process clause of the fourteenth amendment to the federal constitution. . . . That clause provides in relevant part: [N]or shall any State deprive any person of life, liberty or property, without due process of law .... U.S. Const., amend. XIV, § 1. Probation itself is a conditional liberty and a privilege that, once granted, is a constitutionally protected interest. . . . The revocation proceeding must comport with the basic requirements of due process because termination of that privilege results in a loss of liberty. . . . [T]he minimum due process requirements for revocation of [probation] include written notice of the claimed [probation] violation, disclosure to the [probationer] of the evidence against him, the opportunity to be heard in person and to present witnesses and documentary evidence, the right to confront and cross-examine adverse witnesses in most instances, a neutral hearing body, and a written statement as to the evidence for and reasons for [probation] violation. . . . Despite that panoply of requirements, a probation revocation hearing does not require all of the procedural components associated with an adversarial criminal proceeding.” (Internal quotation marks omitted.) State v. Lachowicz, 79 Conn. App. 199, 207, 829 A.2d 874, cert. denied, 266 Conn. 921, 835 A.2d 61 (2003).

The crux of the defendant’s argument on appeal is that article first, § 8, of the constitution of Connecticut has been interpreted by case law to require a revocation proceeding to be bifurcated into two distinct phases with the court making specific findings in support of its conclusion in each stage. He does not contest the conclusions of the court; rather, he maintains that in the absence of a specific finding in each phase, the revocation proceeding did not comport with the basic requirements of due process. The claim is reviewable under Golding because the record is adequate and the defendant’s claim is of constitutional magnitude. On review of the record, however, we find that the defendant fails to satisfy the third prong of Golding. A constitutional violation does not clearly exist because the defendant was not deprived of due process during the course of the revocation proceeding. Likewise, we also conclude that the claimed error does not warrant plain error review. Practice Book § 60-5.

Our Supreme Court has “recognized that revocation of probation hearings, pursuant to § 53a-32, are comprised of two distinct phases, each with a distinct purpose. ... In the evidentiary phase, [a] factual determination by a trial court as to whether a probationer has violated a condition of probation must first be made. ... In the dispositional phase, [i]f a violation is found, a court must next determine whether probation should be revoked because the beneficial aspects of probation are no longer being served.” (Citations omitted; internal quotation marks omitted.) State v. Preston, 286 Conn. 367, 375-76, 944 A.2d 276 (2008). “[T]he ultimate question [in this phase is] whether the probationer is still a good risk .... This determination involves the consideration of the goals of probation, including whether the probationer’s behavior is inimical to his own rehabilitation, as well as to the safety of the public.” (Internal quotation marks omitted.) Id., 377.

Our review of the record reveals that the defendant was accorded a proper hearing that comported with the minimum requirements of due process. During the evidentiary stage of the proceeding, the state presented the testimony of five witnesses and entered six exhibits into evidence. The defendant rested his case without presenting evidence or testimony. The court heard closing arguments from both parties and then concluded that “the state has made out [its] case for a violation of probation.” The finding that a violation of probation had occurred concluded the evidentiary stage of the proceeding.

After fully canvassing the defendant on his choice not to testify, the court then indicated that it wanted to proceed to the sentencing stage and inquired as to whether either party wanted to comment. Counsel for the defendant had no objection. The court then made the following statement regarding its conclusion in the dispositional stage of the proceeding: “With regard to the sentencing, I feel this way. He was already violated once, and, at that time, he really dodged a bullet because he didn’t get any sentence for the violation of probation. Now that he’s violated twice, I think that he should keep faith with what he promised in the first place; he promised that if he were given a suspended sentence of three years, with a period of probation, he would get through the probation so he would never have to do the three years. He is unable, apparently, and certainly has not by a fair preponderance of the evidence, kept that bargain.”

Although a clear statement from the court regarding the specific basis for its conclusion to revoke probation would simplify our review of this claim because it would provide a clear indication of the dispositional phase, the failure to state explicit findings of fact does not undermine the court’s conclusion if the record clearly supports the reasonableness of the conclusion. As this court has previously stated: “[A] court [does] not abuse its discretion by failing to articulate the specific reasons on which the revocation of probation was based. As long as the ultimate findings of the court, that there was a violation of a condition of probation and that probation should have been revoked, were reasonable . . . the court need not have made specific subsidiary findings of fact.” (Internal quotation marks omitted.) State v. Lachowicz, supra, 79 Conn. App. 209; see also State v. Baxter, 19 Conn. App. 304, 321, 563 A.2d 721 (1989) (upholding trial court’s judgment revoking probation that was based on implicit finding that beneficial purposes of probation no longer being served even though court did not make specific findings).

On appeal, the defendant does not contest the court’s decision to revoke his probation; rather, he focuses his argument on the court’s failure to make subsidiary findings of fact regarding its consideration of whether the beneficial aspects of probation are no longer being served. As a review of the pertinent authority illustrates that a court’s failure to make specific findings regarding the rationale underlying its decision to revoke probation does not, in and of itself, signify the absence of the dispositional phase, the defendant’s claim is without merit. Here, the court concluded that a violation of probation had occurred and that the probation should be revoked; therefore, it made a determination in both phases of the proceeding. Accordingly, the revocation of probation proceeding comported with the requirements of due process.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant argues that the constitution of Connecticut affords greater due process rights than those provided under the United States constitution. Specifically, the defendant argues that Connecticut jurisprudence provides a right to counsel at a probation violation proceeding whereas this right has not been extended, as a per se rule, by the United States Supreme Court. This discrepancy has no bearing on the issue currently on appeal. The defendant has not provided any authority to establish that the state constitution affords higher protections than its federal counterpart as it relates to the particular claim before the court. As this argument is inadequately briefed, it is deemed abandoned. See State v. Clark, 255 Conn. 268, 281 n.30, 764 A.2d 1251 (2001).

       The defendant maintains that this court’s analysis in Lachowicz supports, rather than undermines his argument that a dispositional phase did not occur during his revocation proceeding. He argues that his case is distinguishable from Lachowicz because the trial court in Lachowicz conducted a dispositional phase but “did not sufficiently state its reasons for finding that a violation had occurred.” As the determination of whether a violation has occurred is made during the evidentiary phase, the defendant’s argument is based on a misreading of this authority. In Lachowicz, the defendant’s argument before this court was that “the court did not follow proper procedure for finding a violation of probation because it did not state with specificity its rationale for the revocation of his probationary status.” State v. Lachowicz, supra, 79 Conn. App. 207. Therefore, similar to the issue raised in the present appeal, the defendant’s argument in Lachowicz addressed the situation when the court determines “whether probation should be revoked because the beneficial aspects of probation are no longer being served”; (internal quotation marks omitted) State v. Preston, supra, 286 Conn. 376; but does not make an explicit finding in support of this determination.

       As was the case in Baxter, the court’s decision to revoke probation was premised on implicit findings derived from the record. Specifically, in reaching its conclusion in the dispositional phase, the court noted that this was the second violation of probation that the defendant had committed. Furthermore, the defendant’s second violation was for the same conduct underlying his original conviction.