author: FOTI, J.

text:
    STATE OF CONNECTICUT v. GALEN J. CYR
    (AC 18807)
    Foti, Hennessy and Daly, Js.

      Argued February 23
    officially released May 23, 2000

      Robert A. Lacobelle, for the appellant (defendant).

      Marjorie Allen Dauster, assistant state’s attorney, with whom, on the brief, were Patricia A. Swords, state’s attorney, and Elizabeth C. Learning, assistant state’s attorney, for the appellee (state).
   Opinion

FOTI, J.

The defendant, Galen J. Cyr, appeals from the judgment of the trial court revoking his probation pursuant to General Statutes (Rev. to 1997) § 53&-32, and from the denial of his motions to correct an illegal sentence and to open the judgment of violation of probation. On appeal, the defendant claims that the court improperly (1) imposed an unauthorized condition of probation and (2) found that he violated his probation and sentenced him to a term of incarceration. We affirm the judgment of the trial court.

The court reasonably could have found the following facts. On September 27, 1997, the defendant entered pleas of guilty to two counts of risk of injury to a child in violation of General Statutes § 53-21 and one count of prostitution in violation of General Statutes § 53a-82. He was sentenced by the court, Zarella, J., pursuant to an agreement, to a total effective sentence of five years, execution suspended, with five years of probation. There were three specific conditions of probation. The defendant was (1) to have no contact with the victims, (2) to cooperate with any evaluation and treatment, including sex offender treatment, deemed necessary by the office of adult probation and (3) to have no unsupervised contact with any boys younger than sixteen years of age.

Supervision of the defendant was assigned to a probation officer with eleven years experience and specialized training for treatment of sex offender cases. After meeting with the defendant and explaining the conditions of probation, the probation officer referred the defendant for a sexual offender treatment evaluation for the purpose of determining whether he would be eligible and benefit from sexual offender treatment. When it was deemed necessary, the defendant was referred and ordered to participate in an authorized sexual offender treatment program. When he failed to comply with the court-ordered special condition, he was charged with violation of probation. Following a hearing, the court, T. Sullivan, J., found that the defendant wilfully had failed to comply with that special condition of probation, and revoked his probation and sentenced him to serve two years of the original sentence.

I

The defendant first claims that “the trial court lacked the jurisdiction or authority to include a condition for sexual treatment as a probation condition for the defendant’s conduct and that that portion of his sentence was illegal and, [therefore] his failure or inability to secure that treatment to the satisfaction of the probation officer could not legally sustain a violation of his probation.”

The defendant argues that because General Statutes (Rev. to 1997) § 53a-30 (a) (11), now (12), does not include § 53-21 (1) as an enumerated offense for which express authority is given to the court to impose specialized sexual offender treatment as a condition of probation, the court was without authority to do so. The court disagreed, as do we, and determined that under the broad authority of General Statutes (Rev. to 1997) § 53a-30 (a) (12), now (13), it legally could impose a condition of specialized sexual offender treatment when it determines that such treatment is reasonably related to rehabilitation of the defendant.

Statutory construction is a matter of law and therefore subject to plenary review on appeal. State v. Burns, 236 Conn. 18, 22, 670 A.2d 851 (1996). When we interpret a statute, our fundamental objective is to give effect to the apparent intent of the legislature, and in doing so we interpret statutory language in light of the purpose and policy behind the enactment. Skakel v. Benedict, 54 Conn. App. 663, 678, 738 A.2d 170 (1999). “We first look to the language of the statute and to the general goals of probation in order to discern the intent of the legislature . . . .” State v. Pieger, 240 Conn. 639, 646, 692 A.2d 1273 (1997). Probation is a penal alternative to incarceration, and its objectives are to foster the offender’s reformation and to preserve the public’s safety. Id., 647. A probation officer shall use all suitable methods to aid and encourage a probationer, and to bring about improvements in his or her conduct and condition. State v. Misiorski, 250 Conn. 280, 288, 738 A.2d 595 (1999). In discerning the intent of the legislature, we view these general goals of probation, and conclude that the trial court has the broad authority and flexibility to impose conditions to reach the desired ends.

General Statutes (Rev. to 1997) § 53a-30 (a) (11), now (12), the only provision specifically authorizing specialized sexual offender treatment, does not list the offense for which the defendant was convicted. General Statutes (Rev. to 1997) § 53a-30 (a) (12), now (13), however, grants the court broad authority to impose “any other conditions reasonably related to [the probationer’s] rehabilitation.” The broad authority to impose conditions of probation in subdivision (12), now (13), gives the court, in its discretion, the authority to do what it deems reasonably necessary to rehabilitate the probationer and to protect prospective victims of such probationers.

The court noted that “[d]uring the second phase of the violation of probation hearing, this court reviewed the facts alleged in the risk of impairing morals of a child charges and concluded that given the sexual nature and circumstances of the crimes for which the defendant was on probation, and the fact that the victims were children, the sexual offender evaluation and treatment condition imposed by the sentencing court was reasonable, justified and clearly related to the defendant’s rehabilitative needs and the protection of society. Indeed, it was even more apparent to this court after considering and weighing the evidence produced during the hearing that the defendant’s participation in a sexual offender treatment program was an important component of his rehabilitation, given the nature of the crimes and the attitude and lack of insight of the defendant.”

We conclude that the sexual offender treatment condition imposed by the sentencing court was authorized pursuant to General Statutes (Rev. to 1997) § 53a-30 (a) (12), now (13), regardless of the fact that the crimes for which the defendant was convicted did not fall within the purview of General Statutes (Rev. to 1997) § 53a-30 (a) (11), now (12).

II

The defendant next claims that the court improperly found him to be in violation of the terms of his probation and ordered him incarcerated for two years. He alleges that the court committed abuses of discretion and “suggests that he was the recipient of unanticipated and unintentional prejudice [as a result of] the fact that the trial judge for the violation of probation proceeding was different from the trial judge at the original [sentencing] and additionally, to a lesser extent, [as a result of] the fact that he was represented by a different attorney at each of those separate proceedings.” The defendant argues that the court should not have found him to be in violation of his probation and, even if it did so find, it should have considered ordering him into a “recently started denials group for therapy” instead of incarceration. We find the defendant’s claims to be without merit.

“ [U]nder § 53a-32, a probation revocation hearing has two distinct components. . . . The trial court must first conduct an adversarial evidentiary hearing to determine whether the defendant has in fact violated a condition of probation. At such hearing the defendant shall be informed of the manner in which he is alleged to have violated the conditions of his probation or conditional discharge . . . and shall have the light to cross-examine witnesses and to present evidence in his own behalf. ... If the trial court determines that the evidence has established a violation of a condition of probation, then it proceeds to the second component of probation revocation, the determination of whether the defendant’s probationary status should be revoked. On the basis of its consideration of the whole record, the trial court may continue or revoke the sentence of probation or conditional discharge or modify or enlarge the conditions, and, if such sentence is revoked, require the defendant to serve the sentence imposed or impose any lesser sentence. . . . In making this second determination, the trial court is vested with broad discretion.” (Citations omitted; internal quotation marks omitted.) State v. Davis, 229 Conn. 285, 289-90, 641 A.2d 370 (1994).

The defendant claims that he was found to be in violation of his probation solely because he refused to admit to intentionally committing the acts for which he entered the pleas of guilty. The court found, however, that the treatment contract had no requirement that the defendant admit that he intentionally committed the acts. In addition to refusing to sign the required contract, the defendant failed to get the specialized sexual offender treatment and indicated his desire to reinstate contact with one of the child victims. The court concluded that the defendant had violated the conditions of his probation, stating: “I find that the condition of probation, which was imposed by the court based upon the facts and circumstances of this case, was a reasonable and rational condition. It was an essential and integral component of his rehabilitative program.” The defendant wilfully failed to enroll in specialized sexual offender treatment as required. “In aprobation violation proceeding, all that is required is enough to satisfy the court within its sound judicial discretion that the probationer has not met the terms of his probation.” (Internal quotation marks omitted.) State v. Rollins, 51 Conn. App. 478, 484, 723 A.2d 817 (1999). The court, therefore, properly terminated the defendant’s probation and did not abuse its discretion.

The defendant also claims that the court, in sentencing him to incarceration, improperly failed to order him to attend a recently started denials group for therapy. The record does not show that the defendant was eligible for such a group or even that such a group was accepted by the probation office.

In determining whether the defendant’s probationary status should be revoked and whether the original sentence should be reinstated with an order of incarceration, the court is vested with broad discretion. See State v. Smith, 207 Conn. 152, 167, 540 A.2d 679 (1988). In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court’s ruling; reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done. State v. Bostwick, 52 Conn. App. 557, 563-64, 728 A.2d 10, appeal dismissed, 251 Conn. 117, 740 A.2d 381 (1999). We cannot conclude that the court abused its discretion in revoking the defendant’s probation and sentencing him to incarceration.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1997) § 53a-32 (b) provides: “If such violation is established, the court may: (1) Continue the sentence of probation or conditional discharge; (2) modify or enlarge the conditions of probation or conditional discharge; (3) extend the period of probation or conditional discharge, provided the original period with any extensions shall not exceed the periods authorized by section 53a-29; or (4) revoke the sentence of probation or conditional discharge. If such sentence is revoked, the court shall require the defendant to serve the sentence imposed or impose any lesser sentence. No such revocation shall be ordered, except upon consideration of the whole record and unless such violation is established by the introduction of reliable and probative evidence and by a preponderance of the evidence.”

       The pleas were entered under the Alford doctrine. North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

       General Statutes (Rev. to 1997) § 53a-30 (a) provides in relevant part: “When imposing sentence of probation or conditional discharge, the court may, as a condition of the sentence, order that the defendant . . . (11) if convicted of a violation of subdivision (2) of section 53-21, section 53a-70, 53a-70a, 53a-70b, 53a-71, 53a-72a or 53a-72b, undergo specialized sexual offender treatment . . . .”

       General Statutes (Rev. to 1997) § 53a-30 (a) provides in relevant part: “When imposing sentence of probation or conditional discharge, the court may, as a condition of the sentence, order that the defendant . . . (12) satisfy any other conditions reasonably related to his rehabilitation. . . .”

       Generally, “in determining whether a condition of probation [is proper], a reviewing court should evaluate the condition imposed under our Adult Probation Act in the following context: The conditions must be reasonably related to the purposes of the [Probation] Act. Consideration of three factors is required to determine whether a reasonable relationship exists: (1) the purposes sought to be served by probation; (2) the extent to which constitutional rights erqoyedby law-abiding citizens should be accorded to probationers; and (3) the legitimate needs pf law enforcement.” (Internal quotation marks omitted.) State v. Smith, 207 Conn. 152, 170, 540 A.2d 679 (1988).

       The record contains the court’s memorandum of decision on its denial of the defendant’s motions to open and to correct an illegal sentence. The defendant, however, did not furnish a transcript of the court’s findings at the violation of probation hearing signed by the judge. See Practice Book § 64-1 (a).


source: Caselaw Access Project

author: DUPONT, J.

license: Public Domain

text:
    MAURA ALEXANDER ET AL. v. RETIREMENT BOARD OF THE CITY OF WATERBURY
    (AC 18844)
    Lavery, Spear and Dupont, Js.

    Argued February 23
    officially released May 23, 2000

      Henry F. Murray, with whom, on the brief, was Daniel E. Livingston, for the appellants (plaintiff Marie Colacrai et al.).

      Elena Ricci Palermo, corporation counsel, with whom, on the brief, was Kevin M. Johnson, for the appellee (defendant).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

DUPONT, J.

The plaintiffs appeal from the judgment of the trial court dismissing their appeal from the decision of the defendant, the retirement board of the city of Waterbury (retirement board). The court concluded that the retirement board’s decision to impose conditions on the reinstatement of the plaintiff teachers in the Waterbury retirement system (retirement system) was not arbitrary or capricious. On appeal, the plaintiffs claim that the court improperly failed to find that (1) the retirement board exceeded its power under § 2762 of the code of the city of Waterbury, and (2) the actions of the retirement board in adopting a statute of limitations and applying it retroactively to the plaintiffs’ claims for reinstatement in the retirement system violated the plaintiffs’ rights to due process. Additionally, the plaintiffs claim that the court’s construction of § 2762 of the code renders that section unconstitutionally void for vagueness. We agree with the plaintiffs’ first claim and reverse the judgment of the trial court. We, therefore, do not address the plaintiffs’ constitutional claims.

The following facts are not in dispute. On June 10, 1987, the Waterbury Teachers Association (teachers association) submitted a grievance on behalf of sixty-two teachers, claiming that the Waterbury board of education had violated the collective bargaining agreement between the board of education and the teachers association by failing to include the teachers on the membership rolls of the retirement system. The teachers on whose behalf the grievance was filed had been teachers in the Waterbury school system prior to March 1, 1970, had resigned from the school system prior to that date and had been rehired as teachers on later dates subsequent to March 1, 1970. The grievance was based on the fact that, upon their return, the teachers were not permitted to participate in the retirement system.

The grievance was submitted to an arbitrator. The primary issue before the arbitrator was whether the plaintiffs should be considered “newly employed” pursuant to a provision of the collective bargaining agreement that provided that “[tjeachers newly employed after March 1, 1970, shall not be included in the City of Waterbury Retirement Systems.” If the plaintiffs were deemed “newly employed,” they would be excluded from the retirement system. If they were not “newly employed,” they could be included in the retirement system.

On the basis of the past practices of the board of education in allowing three similarly situated teachers to join the retirement system, the arbitrator concluded that the board of education had breached the collective bargaining agreement by denying the teachers the opportunity to participate in the retirement system. The arbitrator concluded that “newly employed” did not include teachers who had been employed by the Waterbury school system prior to March 1, 1970, and who had been rehired subsequent to March 1, 1970. The arbitrator, therefore, ordered the board of education to “submit the names of the sixty-two (62) teachers . . . to the Waterbary Retirement System for inclusion in accordance with whatever statutory provisions are in effect, so that these persons may make whatever payments are statutorily determined to be necessary in order to insure that they are ‘members in good standing’ of the City of Waterbury Retirement System.” (Emphasis added.)

The board of education filed an application in the Superior Court seeking to vacate the arbitration award, and the teachers association filed an application for an order confirming the award. Thereafter, the parties stipulated that the number of teachers included within the arbitrator’s award should have been forty-eight rather than sixty-two. The trial court vacated the award in part and confirmed it in part, concluding that the arbitrator exceeded his authority and that the award was void as to the retirement board because the retirement board was not a party to the arbitration and did not have an opportunity to be heard. The teachers association appealed to the Appellate Court, and the appeal was transferred to the Supreme Court pursuant to Practice Book § 4023, now § 65-1.

The Supreme Court reversed the judgment of the trial court and upheld the arbit ration award on the basis of the conclusion that the board of education had breached its collective bargaining agreement with the teachei's when the board of education concluded that the teachers were “newly employed.” More specifically, the court stated “that the award in this case can reasonably be construed to require the [board of education] to notify the Waterbury retirement board that the arbitrator determined that the [board of education] had breached the collective bargaining agreement between it and the [teachers association] when it concluded that the forty-eight teachers were newly employed for the purpose of determining their eligibility for enrollment in the Waterbury retirement system. The award can also reasonably be interpreted to require that, in conjunction with this communication, the [board of education] send the names of the forty-eight teachers to the retirement board with a recommendation that they hereafter be included in the retirement system. Because the Waterbury retirement board is not bound by the arbitrator’s award, however, it retains the discretion granted by the Waterbury city code to deny the teachers enrollment. In addition, the retirement board may insist that the teachers, to be eligible for enrollment, comply with the procedures required for applying for reinstatement in the system under § 2762 of the Waterbury city code.” Board of Education v. Waterbury Teachers Assn., 216 Conn. 612, 620-21, 583 A.2d 626 (1990).

The Supreme Court, thus, made it clear that the plaintiffs’ eligibility to enroll under the collective bargaining agreement was secure. The court could not order the retirement board to reinstate the plaintiffs in the retirement system because the retirement board was not a party to the arbitration or a party before the Supreme Court. The court affirmed the arbitration award, which was tantamount to ordering the board of education to send the names of the teachers involved to the retirement board with the recommendation that the teachers be reinstated in accordance with the discretion afforded by § 2762 of the code.

In compliance with the decision and the underlying arbitrator’s award, in a letter dated April 24, 1991, sent to the retirement board, the board of education recommended that the forty-eight plaintiffs be included in the Waterbury retirement system. A hearing was held before the retirement board on April 14,1993. On April, 30, 1993, the retirement board denied the plaintiffs’ requests. No record was made of the retirement board’s hearing and the reasons for its decision. The forty-eight plaintiffs appealed the decision to the Superior Court. On June 6, 1994, the trial court remanded the case to the retirement board for a de novo hearing, suggesting that the retirement board submit its decision in writing and include the facts and law relied on in making its decision. Thereafter, the retirement board met on six separate occasions, and on December 6, 1996, it adopted a resolution setting forth its conditions for reinstatement in the retirement system. Basically, the retirement board indicated that it would allow some of the teachers to join the retirement system, but that it did not want to allow teachers who had “sat on their opportunities and did not act on them” to join. The resolution reads as follows: “The City of Waterbury Retirement Board hereby resolves to allow those Waterbury Teachers who meet the following conditions to re-enter into the City of Waterbury Retirement System.

“1. Those individuals who made formal and direct application to the Waterbury Retirement Board within 6 years or 72 months from their last rehire date of employment.

“2. Those individuals who made formal and direct application to the Waterbury Retirement Board within 6 years or 72 months from the Waterbuiy Retirement Board meeting and decision of May 13, 1982 on Joan Odoardo.”3 *

As a result of the time limit imposed by the retirement board, nineteen teachers of the forty-eight who brought the action qualified for reinstatement in the retirement system, and twenty-nine teachers were excluded. All of the nineteen teachers who qualified under the resolution have accepted the retirement board’s decision and elected to participate. The remaining twenty-nine teachers appealed to the Superior Court, claiming that the decision of the retirement board was arbitrary, capricious and an abuse of discretion. The trial court assumed that the retirement board had blanket discretion or authority to deny enrollment in the retirement plan and then concluded that the retirement board’s decision was not arbitrary or capricious, and dismissed the plaintiffs’ appeal. Nine of the remaining twenty-nine teachers appeal from that decision.

The standard of review in appeals from the decisions of administrative agencies is well established. “ ‘Judicial review of an agency decision is limited. . . . [W]emust decide, in view of all of the evidence, whether the agency, in issuing its order, acted unreasonably, arbitrarily or illegally, or abused its discretion. . . . Conclusions of law reached by the administrative agency must stand if the court determines that they resulted from a correct application of the law to the facts found and could reasonably and logically follow from such facts.’ ” O’Callaghan v. Commissioner of Social Services, 53 Conn. App. 191, 203, 729 A.2d 800 (1999), quoting Burinskas v. Dept. of Social Services, 240 Conn. 141, 146-47, 691 A.2d 586 (1997).

“Where the administrative agency has made a factual determination, the scope of review ordinarily is expressed in such terms as substantial evidence or sufficient evidence. . . . Where, however, the administrative agency has made a legal determination, the scope of review ordinarily is plenary.” (Citations omitted.) Christian Activities Council, Congregational v. Town Council, 249 Conn. 566, 581, 735 A.2d 231 (1999). “Pursuant to our standard of review, we examine whether the conclusions of law reached by the trial court resulted from a correct application of the law to the facts of this case.” Waterbury Teachers Assn. v. Freedom of Information Commission, 42 Conn. App. 700, 705, 682 A.2d 125 (1996), rev’d on other grounds, 240 Conn. 835, 694 A.2d 1241 (1997).

We begin our analysis with a review of several general principles regarding municipal charters. “It is well established that a city’s charter is the fountainhead of municipal powers. . . . The charter serves as an enabling act, both creating power and prescribing the form in which it must be exercised. ... It follows that agents of a city, including its commissions, have no source of authority beyond the charter. [T]heir powers are measured and limited by the express language in which authority is given or by the implication necessary to enable them to perform some duty cast upon them by express language.” (Citations omitted; internal quotation marks omitted.) Perretta v. New Britain, 185 Conn. 88, 92-93, 440 A.2d 823 (1981); see also Fennell v. Hartford, 238 Conn. 809, 813-14, 681 A.2d 934 (1996); New Haven v. Local 884, Council 4, AFSCME, AFL-CIO, 44 Conn. App. 764, 768, 694 A.2d 417, cert. denied, 241 Conn. 915, 696 A.2d 984 (1997). “Where the municipal charter prescribes a particular procedure by which a specific act is to be done or a power is to be performed, that procedure must be followed for the act to be lawful.” (Internal quotation marks omitted.) New Haven v. Local 884, Council 4 AFSCME, AFL-CIO, supra, 769. “When a charter is construed, the rules of statutory construction generally apply.” Norwich v. Norwalk Wilbert Vault Co., 208 Conn. 1, 9, 544 A.2d 152 (1988).

As with the interpretation of a statute, the interpretation of a charter is a question of law for the court to decide. Testa v. Waterbury, 55 Conn. App. 264, 270, 738 A.2d 740 (1999). “Rules and regulations adopted pursuant to the authority granted by [a city] charter carry a presumption of validity and have the force and effect of law. . . . When construing a [city] charter, the court; must determine the intent of the legislative body that promulgated the rules. . . . To determine the intent of the charter, [t]he enactment must be examined in its entirety and its parts reconciled and made operative so far as possible. . . . Intent is to be ascertained from the language used, if it is plain and unambiguous; or, if it is not, by considering the legislation in the light of all of its provisions, the object which it seeks to accomplish, the pre-existing legislation upon the same subject matter, and all other relevant circumstances.” (Internal quotation marks omitted.) Id.

The retirement board is a municipal agency created by § 2702 of the city code. Section 2703 of the city code defines the powers and duties of the retirement board and provides in relevant part that “[t]he board shall adopt after a public hearing thereon, bylaws and regulations not inconsistent with the law and the provisions of this act.”

With these principles and the city code in mind, we now determine whether the creation of a statute of limitations on applications for reinstatement was within the retirement board’s authority as set forth in the city code. Both parties agree that the authority of the retirement board is found in the terms of the city code and, specifically, that § 2762 is the governing code provision. Section 2762 of the code, which is entitled “Reinstatement,” provides: “Any former participant who ceased to be a participant by reason of severance of service with the city may, upon again becoming an officer or employee of the city, apply to the retirement board for reinstatement. Said board may reinstate such person only upon his payment into the retirement fund of any amounts previously withdrawn therefrom and upon demonstrating to the satisfaction of the retirement board that he is in reasonably good physical condition as indicated by the results of such medical examination as said board may prescribe.”

The plaintiffs claim that the retirement board exceeded its authority by establishing a statute of limitations and applying it retroactively to bar their claims for reinstatement in the retirement system. The plaintiffs claim that the retirement board can act only within the powers granted to it by the city code and that the code grants the retirement board limited discretion to deny reinstatement to individuals who do not meet the criteria set forth in § 2762 of the code. The plaintiffs argue that the discretion applies only to those situations where the applicant has not paid back any amounts previously withdrawn or where the retirement board determines that an applicant is not in good physical health as determined by a medical examination prescribed by the retirement board. According to the plaintiffs, the retirement board exceeded its discretion when it considered criteria beyond that set forth in the code.

The retirement board counters this interpretation of the city code and claims that the passing of its resolution and the creation of a statute of limitations governing claims for reinstatement in the retirement system was within its authority under the city code. Specifically, the retirement board claims that the language in § 2762, “upon again becoming an officer or employee of the city,” implies a time limit for applicants to seek reinstatement and the retirement board’s action in creating a six year statute of limitations was merely a clarification of that existing time limit. The retirement board claims that it is clear from the language of the code that it can limit reinstatement to those who apply promptly after being rehired.

The retirement board has no source of authority beyond the city code and its “powers are measured and limited by the express language in which authority is given or by the implication necessary to enable [the retirement board] to perform some duty cast upon [it] by express language.” (Internal quotation marks omitted.) Perretta v. New Britain, supra, 185 Conn. 92-93.

We do not agree with the retirement board’s contention that the language of § 2762 on its face grants the retirement board the authority to impose a six year statute of limitations on applicants for reinstatement in the retirement system. “It is the duty of the court to interpret statutes as they are written . . . and not by construction read into statutes provisions which are not clearly stated.” (Citation omitted; internal quotation marks omitted.) Luce v. United Technologies Corp., 247 Conn. 126, 133, 717 A.2d 747 (1998). Nowhere in § 2762 is the retirement board granted the authority to impose whatever conditions it deems appropriate for the reinstatement of applicants. On the contrary, § 2762 sets forth only two eligibility criteria for the reinstatement of participants, that is, payment into the retirement fund of amounts previously withdrawn and passing a physical examination to the satisfaction of the retirement board. The retirement board’s imposition of a third and new eligibility requirement that participants apply within six years from their last rehire date was beyond its express authority proscribed by § 2762.

The retirement board’s claim that the words “upon again becoming an officer or employee” imply a time limit on applicants and authorize the retirement board to establish a six year statute of limitations is unavailing. Our reading of the plain language of § 2762 reveals that that section fails to set forth any time limit in which applicants for reinstatement must apply or any requirement that an application must be “prompt.” If the legislative body that drafted that section had wanted to impose an additional limitation on eligibility, it would have so stated.

Furthermore, our construction of § 2762 is supported when that section is read in conjunction with § 2731 of the Waterbury city code. Section 2731 governs the retirement of teachers and provides in relevant part that “no such person who has passed his forty-fifth birthday when entering the service of the City of Waterbury at any time after January 1,1946, shall be required to [participate in the retirement system], but such person may elect within the first three months of service as a teacher of said city, to participate in the retirement system as a teacher participant and, failing to elect so to do, he shall not thereafter be admitted to the retirement system unless he makes a new application to participate within the two years nextfollowing the commencement of service as such teacher . . . .” (Emphasis added.)

In contrast to § 2731, § 2762 provides no specific time limit in which teachers must apply for reinstatement in the retirement system. “In arriving at the intention of the framers of the charter the whole and every part of the instrument must be taken and compared together. In other words, effect should be given, if possible, to eveiy section, paragraph, sentence, clause and word in the instrument and related laws.” (Internal quotation marks omitted.) Testa v. Waterbury, supra, 55 Conn. App. 270-71. Because the code elsewhere provides and specifies the time in which an applicant for participation in the retirement system must apply, such an omission in § 2762 supports the inference that the drafters intended to provide no such time limit in cases of former participants seeking reinstatement. See Perretta v. New Britain, supra, 185 Conn. 100. “[W]here a statute, with reference to one subject contains a given provision, the omission of such provision from a similar- statute concerning a related subject is significant to show that a different intention existed.” (Internal quotation marks omitted.) Doe v. Statewide Grievance Committee, 41 Conn. App. 671, 678, 677 A.2d 960 (1996), rev’d on other grounds, 240 Conn. 671 A.2d 1218 (1997). Had the drafters intended a specific time limit on applicants for reinstatement, they would have used language similar to that of § 2731. Thus, the retirement board’s creation of a statute of limitations on claims for reinstatement was not within its express authority under § 2762 of the city code.

The retirement board claims that § 2762 grants it broad discretion to deny reinstatement for any reason in addition to an applicant’s failure to satisfy the two eligibility factors listed therein. Section 2762 provides that “[s]aid board may reinstate such person only upon his payment into the retirement fund of any amounts previously withdrawn therefrom and upon demonstrating to the satisfaction of the retirement board that he is in reasonably good physical condition as indicated by the results of such medical examination as said board may prescribe.” (Emphasis added.) The plaintiffs interpret this section to mean that if they pay into the fund any amounts previously withdrawn and demonstrate that they are in good physical condition, the retirement board must reinstate them into the retirement system. We agree with the plaintiffs.

The Supreme Court in Board of Education v. Waterbury Teachers Assn., supra, 216 Conn. 620-21, affirmed an arbitration award that included an order to the board of education to send the names of the teachers involved in the litigation to the retirement board, with the recommendation that the teachers be reinstated in accordance with the discretion afforded by § 2762. Thus, the court recognized that reinstatement by the retirement board was not automatic but subject to the discretion afforded by § 2762.

The language of § 2762 that the retirement board “may reinstate . . . only upon” is interpreted by us as establishing the parameters of the limited circumstances in which the retirement board can deny reinstatement, namely, if the applicant does not make the requisite repayment or if she does not satisfy the retirement board that she is in reasonably good physical condition as indicated by the results of a medical examination prescribed by it. Those are the only reasons that allow the retirement board to refuse reinstatement.

Although § 2762 uses the word “may,” which ordinarily indicates a discretionary rather than a mandatory act, in the context of the entire code and the facts of this case, we interpret the word as mandating reinstatement when the two stated conditions of § 2762 are met to the retirement board’s satisfaction. The word “may” should be interpreted as mandatory rather than directory when the context of legislation permits such interpretation and if the interpretation is necessary to make a legislative enactment effective to carry out its purposes. Golden Hill Paugussett Tribe of Indians v. Southbury, 231 Conn. 563, 589 n.5, 651 A.2d 1246 (1995) (Berdon, J., dissenting); Karp v. Urban Development Commission, 162 Conn. 525, 530, 294 A.2d 633 (1972); State ex rel. Markley v. Bartlett, 130 Conn. 88, 93-95, 32 A.2d 58 (1943); Lake Garda Co. v. LeWitt, 126 Conn. 588, 590-91, 13 A.2d 510 (1940); see also Feuser v. Lampron, 6 Conn. App. 350, 353, 505 A.2d 728 (1986); Wilburn v. Mount Sinai Medical Center, 3 Conn. App. 284, 288, 487 A.2d 568 (1985).

There are instances in which the word “may” should be read as “must.” State v. Palmieri, 143 Conn. 569, 570, 124 A.2d 911 (1956). “The conclusion to be deduced from the authorities is, that where power is given to public officers, in the language of the act . . . whenever . . . individual rights call for its exercise—the language used, though permissive in form, is in effect peremptory. What they are empowered to do for a third person the law requires shall be done.” (Internal quotation marks omitted.) Capobinco v. Samorak, 102 Conn. 310, 313, 128 A. 648 (1925). “The word may, in a statute, will be construed to mean shall whenever the rights of the public or of third persons depend upon the exercise of the power or the performance of the duty to which it refers.” (Internal quotation marks omitted.) Id. “Instances are very common where the word may is used as a synonym for shall or must. The word is usually construed as mandatory, rather than permissive, when a statute prescribing rules of procedure declares that in a certain event the court may act in a certain way. To warrant a different interpretation in such cases, it should clearly appear from other provisions of the statute that the exercise of the power conferred was intended to be discretionary.” (Internal quotation marks omitted.) Id., 314.

The case of State ex rel. Markley v. Bartlett, supra, 130 Conn. 93-95, is instructive and analogous to the present case. In that case, the court held that a provision of a statute outlining the conditions for the issuance of a certificate of approval of medical licenses that provides that the medical examining board “may accept” out-of-state medical licenses was mandatory if the conditions of the statute were otherwise met. The applicant fulfilled the conditions of the statute and therefore, was entitled to a certificate to practice medicine as of right. The court explained that to effectuate legislative intent, it often is necessary to construe “may” as equivalent to “shall.” Id., 93. In the present case, the purpose of § 2762 is to benefit teachers who temporarily left teaching for personal reasons, usually maternity or child care, by allowing them to participate in the retirement system upon their return to teaching. That puipose would be thwarted if the ability to participate were totally discretionary.

Here, the code specifies the requirements that must be met for reinstatement and if the plaintiffs meet the two specified requirements to the retirement board’s satisfaction, we conclude that they are entitled as of right to be reinstated. The retirement board could not add another requirement under the guise of claiming it had a broad discretion whether to reinstate the plaintiffs because § 2762 used the word “may.”

The judgment is reversed and the case is remanded with direction to render judgment ordering the retirement board to reinstate the plaintiffs on appeal in the retirement system of the city of Waterbury if the stated requirements of § 2762 of the city code are met to the retirement board’s satisfaction.

In this opinion the other judges concurred.

       The plaintiffs in the trial court were twenty-nine present and retired teachers in the Waterbury school system who had been excluded from participation in the Waterbury retirement system. Nine of those plaintiffs, Marie Colacrai, Jane Cooney, Mary Doyle, Olive Kiely, Jean Lecours Molitierno, Joanne Rotella, Kathleen Snyder, Eileen Stango and Mary Lindsay, have appealed to this court from the trial court’s dismissal of their appeal. We refer to them as the plaintiffs in this opinion.

       We do not, reach the court’s conclusion that the retirement board did not act capriciously or arbitrarily because we conclude that the retirement board did not have the power or discretion at all to impose the conditions in question.

       Specifically, David Bozzuto, a commissioner on the retirement board, stated the reasons for the board’s decision: “We spent [a] considerable amount of time discussing these issues, and I think one of the strong considerations that the board came to was that, we seriously took into consideration the history of the case, the history of the applicants, the charter and code provisions. One of the concerns that this board has, and I think the reason for the period of time limitations that we put on it, is that we were concerned with people who sat on their opportunities and did not act on them. We felt that a cutoff period of time needed to be made, and the six years was determined based upon what is often considered the most generous statute of limitations, which is the contract statute of limitations.”

       Joan Odoardo was the last of three teachers readmitted into the retiremem system subsequent to their rehiring alter March 1,1970. The arbitrator had concluded lhal the board of education’s actions with regard to these individuals indicated that it did not consider such people “newly employed" for purposes of the collective bargaining agreement. One of the other two teachers previously reinstated was reinstated eight years after her rehiring.


text:
    BARBARA EZIKOVICH v. COMMISSION ON HUMAN RIGHTS AND OPPORTUNITIES ET AL.
    (AC 18470)
    Foti, Zarella and Dupont, Js.
    Argued January 13
    officially released May 23, 2000

      Winona W. Zimberlin, for the appellant (plaintiff).

      Charles Krich, for the appellee (named defendant).

      Edward F. Osswalt, assistant attorney general, with whom, on the brief, were Richard Blumenlhal, attorney general, and Richard J. Lynch, assistant attorney general, for the appellee (defendant department of public health).
   Opinion

FOTI, J.

The plaintiff, Barbara Ezikovich, appeals from the trial court’s judgment dismissing her appeal from the decision by the named defendant, the commission on human rights and opportunities (commission), which dismissed her employment discrimination complaint against the defendant department of public health (department). The plaintiff claims that the court improperly (1) concluded that the commission conducted an adequate investigation before dismissing the complaint, (2) concluded that the commission applied the proper legal standard for determining reasonable accommodation, (3) determined that the commission’s consideration of the department’s collective bargaining agreement was harmless and (4) declined to consider General Statutes § 5-248c. We affirm the judgment of the trial court.

The following facts are relevant to this appeal. Since 1980, the plaintiff has been employed by the department as a health program associate. In 1989, the plaintiff was diagnosed with chronic fatigue syndrome, a disorder that, according to the plaintiff, “results in reduced stamina which makes it difficult to carry out normal life activities, especially in the morning.” For several years, the plaintiff was granted a work accommodation by the department. For example, in 1992, the department authorized the plaintiff to work out of the department’s Norwich office up to three days a week; she was to work out of her official Hartford office the remaining days of the week. In granting this accommodation, the department explicitly noted that due to the department’s upcoming reorganization, the accommodation was conditional and would be reassessed when impacts of the impending reorganization were better understood.

In June, 1995, the plaintiff made a formal work accommodation request with the department, asking that she be allowed to work “[a] no fixed start to work schedule.” The department, while refusing the plaintiffs request for a schedule that would allow her to work when she is able, offered to accommodate the plaintiff with a modified work schedule, which most closely approximated the relaxed hours that the plaintiff already was working. Under the department’s proposed accommodation, the plaintiff was allowed to work several days a week in the department’s Norwich office, which was located closer to the plaintiffs residence. Additionally, despite the plaintiffs reduced schedule, the department would continue to classify the plaintiff as a full-time employee.

The plaintiff was allowed to work out of the Norwich office until 1995, when the department underwent a reorganization in conjunction with the legislatively mandated closing of state hospitals in Norwich and Newtown. In October, 1995, all of the department’s Norwich employees, including the plaintiff, were relocated to the department’s Hartford office. While this reorganization required that the plaintiff work exclusively out of the Hartford office, the department continued to accommodate the plaintiff by allowing her to work a reduced work schedule.

Dissatisfied with the department’s accommodations, the plaintiff filed her complaint with the commission in November, 1995. After an investigation, the commission determined that the department had offered the plaintiff a reasonable work accommodation and that there was no reasonable cause for believing that a discriminatory act had occurred. Accordingly, the commission dismissed the plaintiffs complaint.

The plaintiff appealed to the trial court from the decision of the commission. The court agreed with the commission’s finding that the department had offered the plaintiff a reasonable work accommodation and, therefore, dismissed the plaintiffs complaint. This appeal ensued.

I

The plaintiff first claims that the trial court improperly concluded that the commission conducted an adequate investigation before dismissing the plaintiffs complaint. We disagree.

“We first note the limited scope of review to be exercised by the trial court in reviewing a [commission] determination that there is no reasonable cause to believe that a discriminatory practice has been committed. Judicial review of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency’s findings of basic fact and whether the conclusions drawn from those facts are reasonable. . . . This so-called substantial evidence rule is similar to the sufficiency of the evidence standard applied in judicial review of jury verdicts, and evidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred. . . . [I]t imposes an important limitation on the power of the courts to overturn a decision of an administrative agency . . . and to provide a more restrictive standard of review than standards embodying review of weight of the evidence or clearly erroneous action. . . . The United States Supreme Court, in defining substantial evidence in the directed verdict formulation, has said that it is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence. . . . This substantial evidence rule is embodied in General Statutes § 4-183 (j) (5) and (6).

“The substantial evidence standard is satisfied if the record provides a substantial basis of fact from which the fact in issue can be reasonably inferred. . . . The issue before the trial court, therefore, was whether there was a substantial basis in the record to support the commission’s finding of no reasonable cause for either the discrimination or retaliation allegation. As [our Supreme Court] noted previously, the term reasonable cause as used in [General Statutes] § 46a-83 is synonymous with the term probable cause. . . . Probable cause is a bona fide belief in the existence of facts essential under the law for the action and such as would warrant a man of ordinary caution, prudence and judgment, under the circumstances, in entertaining it. . . . Probable cause is a flexible common sense standard. ... It deals with probabilities, and the application of the factual and practical considerations of everyday life on which reasonable and prudent men act. ... In order to determine whether there was substantial evidence in the record to support the commission’s determination, the commission must have conducted a complete and thorough investigation.” (Citations omitted; internal quotation marks omitted.) Dufraine v. Commission on Human Rights & Opportunities, 236 Conn. 250, 259-61, 673 A.2d 101 (1996). We conclude that the trial court properly determined that the commission conducted a thorough investigation.

In her attack on the adequacy of the commission’s investigation, the plaintiff argues that the commission’s finding did not explicitly address the cost-benefit analysis of the plaintiffs requested accommodation. The plaintiffs argument is unavailing because there was adequate evidence in the record for the court to have concluded that the commission properly investigated this issue. In its memorandum of decision, the court explicitly noted that the commission investigator interviewed department representatives regarding the costs associated with the plaintiffs proposed work accommodations. It is, therefore, quite clear that the commission investigated this aspect of the plaintiffs complaint.

The plaintiff also attacks the adequacy of the commission’s investigation by claiming that the commission investigator failed to interview certain witnesses concerning scheduling and work hours. This argument, too, lacks merit. A review of the record clearly shows that the subject of scheduling and work hours was in fact addressed in documents submitted by both the plaintiff and the department. The court correctly found that the commission adequately investigated this subject.

Next, the plaintiff attacks the methods by which the commission conducted some of its interviews. The plaintiff complains that certain department employees were interviewed in the presence of their supervisors. This, according to the plaintiff, affected the candor of the witnesses and resulted in an ineffective investigation. We find nothing in the record to support the plaintiffs claim and conclude that the commission’s interviewing techniques did not undermine the thoroughness of their investigation.

Finally, the plaintiff claims that the commission’s investigation was inadequate because the commission failed to interview witnesses regarding the “issue of discrimination in the manner in which the plaintiff was required to keep her time sheets.” During the commission investigation, the plaintiff introduced evidence that she was required to record her work hours to the nearest minute while other employees were allowed to record their time to the nearest one-quarter of an hour. The plaintiff now claims that the commission failed to investigate this aspect of the plaintiffs claim. The plaintiffs argument fails, however, because the record contains ample evidence that the plaintiff had a history of inaccurately reporting her work hours. There was, therefore, sufficient evidence from which the commission could have inferred that the strict timekeeping requirements were necessitated by the plaintiffs misrepresentation of the hours she worked and were not the result of any discrimination on the part of the department. We conclude that the commission’s investigation was sufficiently thorough and that there was substantial evidence in the record to support the commission’s determination that there was no reasonable cause to believe that the department discriminated against the plaintiff.

II

The plaintiff next claims that the court improperly concluded that the commission applied the correct standard in determining whether the department afforded the plaintiff a reasonable work accommodation. We disagree.

In her underlying complaint to the commission, the plaintiff claimed that she suffered discrimination because of her physical disability and that the department violated General Statutes §§ 46a-58 (a), 46a-60 (a) (1) and (4), and the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq. We note that although her claim is based largely on alleged violations of state statutes, “we review federal precedent concerning employment discrimination for guidance in enforcing our own antidiscrimination statutes.” Levy v. Commission on Human Rights & Opportunities, 236 Conn. 96, 103, 671 A.2d 349 (1996).

The ADA provides that “[n]o covered entity shall discriminate against a qualified individual with a disability because of the disability . . . .” 42 U.S.C. § 12112 (a). The term “discriminate” includes “not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability . . . .” 42 U.S.C. § 12112 (b) (5) (A). Under the ADA, “a plaintiff can state a claim for discrimination based upon her employer’s failure to accommodate her handicap by alleging facts showing (1) that the employer is subject to the statute under which the claim is brought, (2) that she is an individual with a disability within the meaning of the statute in question, (3) that, with or without reasonable accommodation, she could perform the essential functions of the job, and (4) that the employer had notice of the plaintiffs disability and failed to provide such accommodation.” Lyons v. Legal Aid Society, 68 F.3d 1512, 1515 (2d Cir. 1995). Of these four factors, the only issue in dispute in the present case is whether the department failed to provide the plaintiff with a reasonable work accommodation.

We conclude that the court properly found that the commission correctly determined that the department had provided the plaintiff with a reasonable accommodation. The ADA does not provide a closed-end definition of what constitutes a reasonable accommodation. Instead, the ADA sets out a nonexclusive list of different methods of satisfying the requirement of reasonable accommodation, including “job restructuring, part-time or modified work schedules . . . .” 42 U.S.C. § 12111 (9) (B). The plaintiff claimed that because she suffered from chronic fatigue syndrome, she could not arrive at work before 11:30 a.m. To accommodate the plaintiffs needs, the department has allowed her to work a relaxed, part-time schedule, while still classifying her as a full-time employee.

Dissatisfied with the part-time schedule enacted by the department, the plaintiff argues that she should be allowed to work “a no fixed start to work schedule” when she is able. While the plaintiff would prefer a flexible, open-ended work schedule, “[a]n employer is not obligated to provide an employee the accommodation [s]he requests or prefers, the employer need only provide some reasonable accommodation.” (Internal quotation marks omitted.) Malabarba v. Chicago Tribune Co., 149 F.3d 690, 699 (7th Cir. 1998). The part-time schedule offered by the department effectively accommodated the plaintiffs condition while permitting the department to satisfy its own management needs of having the plaintiff work a regular and predictable schedule. The commission properly found that the department’s accommodation was reasonable.* *

III

The plaintiff next claims that the court improperly found that the commission’s consideration of the department’s collective bargaining agreement was harmless. In its decision finding that the department had reasonably accommodated the plaintiff, the commission mentioned that under the agreement, the plaintiff would need to be compensated with overtime pay if she were to work past 4:30 p.m. The plaintiff argues that the commission’s consideration of the agreement was improper because the commission’s interpretation of the agreement was incorrect and, even if the interpretation was correct, the agreement can not be used to justify discriminatory behavior.

We need not address the plaintiffs argument because we conclude that the court correctly determined that the commission’s discussion of the collective bargaining agreement, even if it was erroneous, was harmless because there was substantial evidence in the record to support the commission’s decision. Our Supreme Court has held that “[h] armless error analysis is available in the administrative context. The Uniform Administrative Procedure Act [General Statutes § 4-166 et seq.] provides that if an individual’s substantial rights have been prejudiced, the case should be remanded unless but one conclusion is required by law.” (Internal quotation marks omitted.) Ann Howard’s Apricots Restaurant, Inc. v. Commission on Human Rights & Opportunities, 237 Conn. 209, 227-28, 676 A.2d 844 (1996). The court in Ann Howard’s Apricots Restaurant, Inc., concluded that “because there was significant evidence in the record, apart from [the complainant’s] testimony, from which the hearing officer could have concluded that the [employer] had impermissibly discriminated against [the complainant], the hearing officer’s failure to exclude that testimony was harmless and we need not decide whether the hearing officer abused her discretion.” Id., 228. Similarly, there was sufficient evidence in this case, apart from the collective bar-gaining agreement, for the commission to have determined that the department’s accommodation was reasonable. Significantly, the plaintiff herself claimed that she could not work a full day and, given the plaintiff’s supervisory requirements, there was adequate independent evidence from which the commission could have determined that the department’s accommodation was reasonable.

IV

Finally, the plaintiff claims that the court improperly declined to consider the effect of § 5-248c. General Statutes § 5-248c (a) provides: “The Commissioner of Administrative Services, in conjunction with the Secretary of the Office of Policy and Management, shall implement a voluntary schedule reduction program under which permanent state employees may, with the approval of their appointing authority, take unpaid leave consisting of individual prescheduled days or partial days off, without loss of seniority, benefits, longevity, retirement credit, sick leave, vacation or earned overtime accumulation.” (Emphasis added.) In her complaint before the commission, the plaintiff claimed that the department had discriminated against her by refusing to grant her proposed workplace accommodation, which essentially was an open-ended work schedule in which her work hours would change according to her stamina on any given day.

The plaintiff did not make any arguments to the commission concerning § 5-248c and first attempted to raise this argument in her appeal to the trial court. The court, however, refused to allow the plaintiff to present evidence on this claim. According to § 4-183 (h), the court may allow an appellant from an administrative decision to present additional evidence if “it is shown to the satisfaction of the court that the additional evidence is material . ...” As discussed previously, the plaintiffs proposed accommodation involved an open-ended, “work when able” arrangement. Section 5-248c, in contrast, contemplates the granting of prescheduled days off or partial days off. The scheduling program outlined in § 5-248c is inapposite to the accommodation requested by the plaintiff. The statute was, therefore, immaterial to the plaintiffs claim, and the court correctly refused to allow the plaintiff to present additional evidence regarding § 5-248c.

The judgment is affirmed.

In this opinion the other judges concurred.

       Also, with the informal consent of her supervisor, the plaintiff did not observe a strict hourly schedule, but would report to work whenever she felt able, usually between 11 a.m. and noon.

       The plaintiff further requested that she “be able to work at least thirty minutes beyond the usual close of business when able,” that she be allowed “the option of working through lunch when . . . able,” and that she be given “a key to the rear door [of the office building].”

       The plaintiff worked at the Norwich office Monday, Tuesday and Friday from 11:30 a.m. to 4:30 p.m.; she worked at the Hartford office on Wednesday and Thursday from 11:30 a.m. to 5 p.m.

       The department did not challenge the commission’s finding that the plaintiffs chronic fatigue syndrome constituted a physical disability that rendered her a member of a protected class for the purpose of the commission's discrimination analysis.

       Furthermore, the “no fixed start to work schedule” proposed by the plaintiff would itself be unreasonable. To establish a successful ADA claim, a plaintiff still must be able to perform the essential functions of her job, albeit with accommodation, and numerous federal courts “have recognized that attendance at work is a necessaiy job function. ‘An employee who is “unable to come to work on a regular basis [is] unable to satisfy any of the functions of the job in question, much less the essential ones.” ’ Moore v. Payless Shoe Source, Inc., 139 F.3d 1210, 1213 (8th Cir. 1998) (quoting Halperin v. Abacus Tech. Corp., 128 F.3d 191, 198 (4th Cir. 1997)). Other circuits have also held that regular and reliable attendance is a necessary element of most jobs. See Rogers v. Int’l Marine Terminals, Inc., 87 F.3d 755, 759 (5th Cir. 1996) (‘Because [the plaintiff] could not attend work, he [was] not a “qualified individual with a disability” under the ADA.’); Carr v. Reno, 23 F.3d 525, 530 (D.C. Cir. 1994) (coming to work regularly was an ‘essential function’); Tyndall v. Nat'l Educ. Centers, 31 F.3d 209, 213 (4th Cir. 1994) (‘[A] regular and reliable level of attendance is a necessary element of most jobs.’).” Nesser v. Trans World Airlines, Inc., 160 F.3d 442, 445 (8th Cir. 1998).


author: SCHALLER, J.

text:
    ROSELANDE REJOUIS, ADMINISTRATRIX (ESTATE OF JEAN CLAUDE BOITEUX) v. GREENWICH TAXI, INC., ET AL.
    (AC 18706)
    Sehaller, Hennessy and Dupont, Js.

      Argued December 16, 1999
    officially released May 23, 2000

      Laurel Fedor, for the appellant (plaintiff).

      Mark F. Katz, for the appellees (named defendant et al.).
   Opinion

SCHALLER, J.

The plaintiff, Roselande Rejouis, administratrix of the estate of the decedent, Jean Claude Boiteux, appeals from the judgment of the trial court rendered following the granting of the motion to set aside the verdict filed by the defendants Greenwich Taxi, Inc., Stamford Taxi, Inc., and Tibbetts Enterprises, Inc. On appeal, the plaintiff claims that the trial court improperly set aside the verdict on the grounds that there was insufficient evidence to support the damages awarded by the jury and the jury’s verdict for the plaintiff was influenced by sympathy. We agree.

The following facts and procedural history are relevant to this appeal. In September, 1988, the decedent was an independent contractor working as a taxicab driver for the defendants under a contract called the “Taxicab Lease Agreement.” The parties executed another document called the “Independent Driver/Contractor Work Injury Compensation Plan” (compensation plan). In addition to the lease payments, the decedent made regular payments into the compensation plan.

On March 7,1989, the decedent went to work driving his taxicab. The decedent was found murdered outside his taxicab in Stamford on the morning of March 8, 1989. At trial, Malka Shah of the office of the chief medical examiner testified that when the decedent was examined at approximately 9:30 a.m. on March 8, 1989, he had been dead for eight to ten hours. At the time of death, the decedent was thirty-four years of age.

In her amended complaint, the plaintiff alleged, inter alia, that the defendants breached their contract with the decedent. Specifically, the plaintiff contended that the decedent’s death was work related and, therefore, the defendants were obligated to pay the decedent’s estate pursuant to the compensation plan. At the conclusion of the plaintiff’s case, the defendants moved for a directed verdict on count one, the breach of contract claim, with respect to which the court reserved decision. After hearing the evidence, the jury found that the decedent’s death was work related. The jury also found the defendants liable for damages and awarded the plaintiff $50,000 plus prejudgment interest. In response, the defendants filed a motion to set aside the verdict* ** and a motion for remittitur. Although the trial court, determined that the decedent’s death was work related, it granted the defendants’ motion to set aside the verdict on the ground that there was insufficient evidence to support the damages awarded by the jury and because the jury’s verdict for the plaintiff was influenced by sympathy. This appeal followed.

At the outset, we note that “[t]he setting aside of a verdict can occur for two general reasons. First, a trial court may set aside a verdict on a finding that the verdict is manifestly unjust because, given the evidence presented, the jury mistakenly applied a legal principle or because there is no evidence to which the legal principles of the case could be applied. Maroun v. Tarro, 35 Conn. App. 391, 396, 646 A.2d 251, cert. denied, 231 Conn. 926, 648 A.2d 1641 (1994). Second, a verdict may be set aside if its result justifies a suspicion that a juror or jurors were influenced by prejudice, corruption or partiality.” Novak v. Scalesse, 43 Conn. App. 94, 97-98, 681 A.2d 968, cert. granted on other grounds, 239 Conn. 925, 682 A.2d 1004 (1996) (appeal withdrawn, May 13, 1997). We will first discuss whether the trial court properly determined that the jury mistakenly applied a legal principle or could not apply a legal principle because of a lack of evidence.

“The trial court possesses inherent power to set aside a jury verdict which, in the court’s opinion, is against the law or the evidence. O’Brien v. Seyer, 183 Conn. 199, 208, 439 A.2d 292 (1981). The supervision which a judge has over the verdict is an essential part of the jury system. . . . [The trial court] should not set aside a verdict where it is apparent that there was some evidence upon which the jury might reasonably reach their conclusion, and should not refuse to set it aside where the manifest injustice of the verdict is so plain and palpable as clearly to denote that some mistake was made by the jury in the application of legal principles, or as to justify the suspicion that they or some of them were influenced by prejudice, corruption or partiality. Burr v. Harty, 75 Conn. 127, 129, 52 A. 724 (1902). The court has a duty to set aside the verdict where the juiy’s action is so unreasonable as to suggest that it was the product of such improper influences. State v. Avcollie, 178 Conn. 450, 457, 423 A.2d 118 (1979), cert. denied, 444 U.S. 1015, 100 S. Ct. 667, 62 L. Ed. 2d 645 (1980), aff'd, 188 Conn. 626, 453 A.2d 418 (1982), cert. denied, 461 U.S. 928, 103 S. Ct. 2088, 77 L. Ed. 2d 299 (1983); Roma v. Thames River Specialties Co., 90 Conn. 18, 19-20, 96 A. 169 (1915). . . .

“The decision to set aside a verdict entails the exercise of a broad legal discretion that, in the absence of clear abuse, we shall not disturb. O’Brien v. Seyer, supra, [183 Conn. 208]. Our review of the trial court’s action on a motion to set aside the verdict involves a determination of whether the trial court abused its discretion, according great weight to the action of the trial court and indulging every reasonable presumption in favor of its correctness; Labatt v. Grunewald, 182 Conn. 236, 240-41, 438 A.2d 85 (1980); Levitz v. Jewish Home for the Aged, Inc., 156 Conn. 193, 198, 239 A.2d 490 (1968); since the trial judge has had the same opportunity as the jury to view the witnesses, to assess their credibility and to determine the weight that should be given to their evidence. Loomis v. Perkins, 70 Conn. 444, 447, 39 A. 797 (1898). Moreover, the trial judge can gauge the tenor of the trial, as we, on the written record, cannot, and can detect those factors, if any, that could improperly have influenced the jury. Mather v. Griffin Hospital, 207 Conn. 125, 139, 540 A.2d 666 (1988); Birgel v. Heintz, 163 Conn. 23, 26, 301 A.2d 249 (1972). The focus of our inquiry is the action of the trial court in setting aside the verdict. Campbell v. Gould, 194 Conn. 35, 39, 478 A.2d 596 (1984).

“Litigants, however, have a constitutional right to have issues of fact determined by a jury. Mather v. Griffin Hospital, supra, [207 Conn.] 138; Seals v. Hickey, 186 Conn. 337, 350, 441 A.2d 604 (1982); Jacobs v. Goodspeed, 180 Conn. 415, 417, 429 A.2d 915 (1980). The right to a jury trial is fundamental in our judicial system, and this court has said that the right is one obviously immovable limitation on the legal discretion of the court to set aside a verdict, since the constitutional right of trial by jury includes the right to have issues of fact as to which there is room for a reasonable difference of opinion among fair-minded men passed upon by the jury and not by the court. Camp v. Booth, 160 Conn. 10, 13, 273 A.2d 714 (1970). Since, in setting aside the verdict, the trial court has deprived the party in whose favor the verdict was rendered of his constitutional right to have factual issues resolved by the jury, we must examine the evidential basis of the verdict itself to determine whether the trial court abused its discretion. Jacobs v. Goodspeed, supra [417].” (Internal quotation marks omitted.) Palomba v. Gray, 208 Conn. 21, 23-25, 543 A.2d 1331 (1988).

In the present case, the plaintiff claims that there was sufficient evidence to support the damages awarded by the jury and, therefore, the trial court improperly set aside the verdict. Specifically, the plaintiff contends that the written terms of the contract accompanied by the evidence and testimony presented at trial, provided the jury with an adequate basis to award damages. We agree.

“A court should be especially hesitant to set aside a jury’s award of damages.” Zarrelli v. Barnum Festival Society, Inc., 6 Conn. App. 322, 326, 505 A.2d 25, cert. denied, 200 Conn. 801, 509 A.2d 516 (1986). “That damages may be difficult to assess is, in itself, insufficient reason for refusing them once the right to damages has been established. See Ball v. T. J. Pardy Construction Co., 108 Conn. 549, 551, 143 A. 855 (1928).” Griffin v. Nationwide Moving & Storage Co., 187 Conn. 405, 420, 446 A.2d 799 (1982). “There are no unbending rules as to the evidence by which [damages for breach of contract] are to be determined. . . . The general rule in breach of contract cases is that the award of damages is designed to place the injured party, so far as can be done by money, in the same position as that which he would have been in had the contract been performed. ... In making its assessment of damages for breach of [any] contract the trier must determine the existence and extent of any deficiency and then calculate its loss to the injured party.” (Citation omitted; internal quotation marks omitted.) L. F. Pace & Sons, Inc. v. Travelers Indemnity Co., 9 Conn. App. 30, 41, 514 A.2d 766, cert. denied, 201 Conn. 811, 516 A.2d 886 (1986). “Assessment of damages is peculiarly within the province of the jury and their determination should be set aside only when the verdict is plainly excessive and exorbitant. Wochek v. Foley, 193 Conn. 582, 586, 477 A.2d 1015 (1984). Wood v. Bridgeport, 216 Conn. 604, 611, 583 A.2d 124 (1990).” (Internal quotation marks omitted.) Brennan v. Burger King Corp., 46 Conn. App. 76, 79, 698 A.2d 364 (1997), aff'd, 244 Conn. 204, 707 A.2d 30 (1998). “The plaintiff has the burden of proving the extent of the damages suffered. Johnson v. Flammia, [169 Conn. 491, 501, 363 A.2d 1048 (1975)]. Although the plaintiff need not provide such proof with ‘[m]athematical exactitude . . . the plaintiff must nevertheless provide sufficient evidence for the trier to make a fair and reasonable estimate.’ ” Willow Springs Condominium Assn., Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 65, 717 A.2d 77 (1998).

In the present case, we note from the outset that the record reveals confusion among the parties and the trial court concerning the nature of the cause of action. Because the plaintiffs claim was based on a breach of contract theory, the plaintiff did not have to prove, inter alia, the elements of liability and damages pertaining to a wrongful death action. Although the compensation plan was ambiguous as to the specific amount of benefits that a claimant was entitled to receive if death occurred as a result of a work-related accident, the issue before us is whether the plaintiff introduced sufficient evidence to allow the juiy to make a reasonable determination of the compensation contract payment due for death. Simply put, the issue is whether the jury could reasonably conclude that the maximum contract benefit of $50,000 should be paid for a work-related death.

The court properly charged the juiy on the law of contracts and damages. The terms of the compensation plan itself provided for an assumption that the plaintiff would make $14,500 annually. The compensation plan further provided that each accident or injury was limited to a monetary compensation of $50,000. The plaintiff also introduced evidence that the decedent made regular payments into the compensation plan. In addition, Joseph Boskello, general manager of Stamford Taxi, Inc., and Greenwich Taxi, Inc., testified as to the guidelines of the compensation plan. Specifically, Boskello testified that, in the past, claims under the plan were paid if he believed a driver was on duty when he was injured and there was sufficient medical documentation. Boskello even testified that “if [the decedent’s death] occurred while he was on duty, yes, the [compensation plan] would be happy to cover it.” Boskello also testified that if a driver was out of work he would be compensated two thirds of his pay. Furthermore, Boskello confirmed that the $50,000 was the maximum benefit that the plan would cover for each work-related accident.

From the very nature of the circumstances, the amount of the loss to the decedent’s estate could not be proven with exactitude, and all that is required is that the evidence, with such certainty as the nature of the particular case may permit, lay a foundation that will enable the jury to make a fair and reasonable estimate. See State v. Davis, 3 Conn. App. 359, 368, 488 A.2d 837 (1985). We conclude that it was reasonable for the jury to conclude that the plaintiff was entitled to $50,000, representing the maximum amount that could be awarded under the terms of the compensation plan. Furthermore, the ambiguous language of the compensation plan should not be construed against the interests of the plaintiff to deny coverage. We note the general rule that ambiguous language in a contract should be interpreted against the drafter. See, e.g., Imperial Casualty & Indemnity Co. v. State, 246 Conn. 313, 329, 714 A.2d 1230 (1998); Levine v. Advest, Inc., 244 Conn. 732, 755-56, 714 A.2d 649 (1998). The defendants drafted the compensation plan in a fashion that would not allow a jury to determine the appropriate compensation with mathematical certainty. The jury, however, was not prevented from making an assessment that was fair and reasonable under the circumstances. We conclude, therefore, that the court properly charged the jury on the law of contracts and damages, and that there was sufficient proof for the jury to award damages.

The other ground for setting aside a verdict is when circumstances justify a suspicion that the jury was influenced by prejudice, corruption or partiality. “The size of the verdict alone does not determine whether it is excessive. The only practical test to apply to this verdict is whether the award falls somewhere within the necessarily uncertain limits of just damages or whether the size of the verdict so shocks the sense of justice as to compel the conclusion that the jury was influenced by partiality, prejudice, mistake or corruption. McKirdy v. Cascio, 142 Conn. 80, 86, 111 A.2d 555 (1955); Herb v. Kerr, [190 Conn. 136, 139, 459 A.2d 521 (1983)]; Kiniry v. Danbury Hospital, 183 Conn. 448, 461, 439 A.2d 408 (1981); Katsetos v. Nolan, 170 Conn. 637, 656, 368 A.2d 172 (1976).” (Internal quotation marks omitted.) Mather v. Griffin Hospital, supra, 207 Conn. 139.

In the present case, the trial court suggested that the jury might have awarded the verdict out of sympathy. There is nothing in the record to indicate that the jury was improperly influenced by sympathy for the plaintiff. The court concluded that there was sympathy, stating that “[t]here was great sympathy engendered by the testimony of the plaintiff, the unmarried mother of four children by the deceased, which was not lost upon the jury . . . .” The fact that the jury had knowledge that the plaintiff is the unmarried mother of four children, however, does not justify the court’s decision to set aside the verdict on this ground. The court specifically charged that the “verdict must not be influenced by sympathy or prejudice” for the plaintiff. Nor does the size of the verdict so shock the sense of justice as to justify the court’s decision to set aside the verdict. We cannot conclude that the circumstances justified a suspicion that the jury was influenced by prejudice, corruption or partiality. The setting aside of the verdict, therefore, cannot be sustained on that ground. State v. Avcollie, supra, 178 Conn. 460. Accordingly, we conclude that the trial court abused its discretion in granting the defendants’ motion to set aside the verdict.

The judgment is reversed and the case is remanded with direction to reinstate the jury’s verdict and to render judgment on the verdict in favor of the plaintiff.

In this opinion the other judges concurred.

       The jury’s verdict was returned against the corporate defendants, Greenwich Taxi, Inc., Stamford Taxi, Inc., and Tibbetts Enterprises, Inc. Those defendants filed the motion to set aside the verdict, which the trial court, granted. We refer in this opinion to those defendants as the defendants. The other defendants, Hubert M. Tibbetts, Gunhild M. Tibbetts, Work Injury Compensation Plan and Joseph Boskello, are not parties to this appeal.

       The plaintiff appears to argue in her initial brief that, in the alternative, even if there was insufficient evidence to award damages under a common-law theory, there was a sufficient basis to allow the jury to award them under the state workers’ compensation law. We need not address this alternate ground because we conclude that the trial court improperly set aside the verdict for other reasons.

       The compensation plan provided: “Greenwich Taxi, Inc., agrees to compensate [the decedent], an independent driver/contractor, under the guidelines of the Connecticut Workmen’s Compensation Plan, for injury due to work related accidents. Terms include an assumption of $14,500 per annum net income. Total payments for any single claim or occurrence are limited to $50,000. This agreement will remain in effect as long as said driver/ contractor is current in his payment of the weekly fee covering this protection.”

       Counts two, three and four of the plaintiffs amended complaint alleged violations of the Connecticut Unfair Trade Practices Act and fraudulent misropresentation. The trial court directed a verdict in the defendants’ favor on these counts because they were brought after the statute of limitations had expired.

       The defendants claimed that the court should set aside the verdict because there was insufficient evidence on which the jury could find that the decedent’s death was work related and that there was no basis on which an award for damages could be based.

       The court did not rule on the motion for remittitur.


author: STOUGHTON, J.

text:
    JACK L. ROSENBLIT, TRUSTEE v. BARBARA WILLIAMS ET AL.
    (AC 18980)
    Lavery, Mihalakos and Stoughton, Js.

      Argued December 13, 1999
    officially released May 23, 2000

      Lawrence S. Hillman, for the appellant-appellee (plaintiff).

      Jonathan S. Bowman, with whom was Stuart M. Katz, for the appellee-appellant (defendant Ford Consumer Finance Company, Inc.).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

STOUGHTON, J.

The plaintiff, Jack L. Rosenblit, trustee, appeals from the trial court’s determination of priorities in a judgment of strict foreclosure. The court determined, on principles of equitable subrogation, that a mortgage held by the defendant Ford Consumer Finance Company, Inc. (Ford), that was subsequent to certain mortgages held by the plaintiff should be given priority over the plaintiffs mortgages. On appeal, the plaintiff claims that the court improperly (1) applied the doctrine of equitable subrogation and (2) subrogated his mortgages to the entire balance of Ford’s mortgage. Ford cross appeals from the judgment for the plaintiff on its counterclaims. 3Ford claims in its cross appeal that the court improperly failed to find that the plaintiffs conduct constituted a violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. We affirm the judgment of the trial court.

The following facts were found by the court. Barbara Williams and Ellen Woodhouse owned property at 300-302 Ridgefield Avenue in Bridgeport (property). Prior to March 7, 1990, the property was encumbered by a first mortgage then held by M & T Mortgage Corporation (M & T mortgage), a second mortgage held by the Bridgeport City Employee’s Federal Credit Union (Bridgeport mortgage) and a third mortgage held by the plaintiff.

On March 7, 1990, Danny R. Evans *and Williams, individually and as attomey-in-fact for Woodhouse, executed a promissory note in favor of the plaintiff in the amount of $25,000, secured by a fourth mortgage on the property to the plaintiff. The plaintiff has foreclosed this mortgage in this action.

On July 25, 1990, Williams, individually and as attorney-in-fact for Woodhouse, executed a promissory note in favor of the plaintiff in the amount of $10,000, secured by a fifth mortgage on the property to the plaintiff. The plaintiff has foreclosed this mortgage in this action.

On February 17, 1995, Williams and Woodhouse borrowed $106,139.74 from Ford as evidenced by a note secured by a mortgage deed recorded on that date. Ford’s loan required the payoff of the M & T mortgage, the Bridgeport mortgage and a sewer lien that encumbered the property. Ford was given releases of the plaintiffs three mortgages at or before the closing and assumed that it had a first mortgage on the property. The releases, however, purportedly executed in 1994, were forgeries, as stipulated by the parties at trial. In addition, the parties have stipulated that the power of attorney under which Williams purported to act for Woodhouse was a forgery and that the mortgages to the plaintiff did not encumber the Woodhouse one-half interest in the property. Williams received only $1162.50 of the proceeds of the $25,000 loan, the balance either having been paid to Evans or retained by the plaintiff. Williams received no part of the $10,000 loan. The plaintiff testified that each mortgage went into default within one month of their making in 1990 and that he received only $250 on the $10,000 loan.

After Ford paid off all the prior encumbrances on the property, the plaintiff filed a complaint in 1996 seeking to foreclose the fourth and fifth mortgages. The complaint alleged that Ford’s mortgage and a Sears, Roebuck & Co. lien were subsequent encumbrances. Ford filed an answer, ten special defenses and a five count counterclaim. Ford’s essential position was that its mortgage should have priority over the two mortgages that the plaintiff sought to foreclose.

The court rendered judgment in favor of Woodhouse and ordered a strict foreclosure in favor of the plaintiff against Williams’ interest in the property. The court rendered judgment in favor of the plaintiff on each count of the defendants’ counterclaims because the defendants failed to prove the facts they asserted to support any of their claims by the standard of proof required. The court also found with respect to all of the special defenses, except the fourth special defense, that the defendants had failed to prove those defenses by the applicable standard of proof. With regard to the fourth special defense, the court found in favor of Ford and invoked the doctrine of equitable subrogation, giving priority to Ford’s mortgage over all of the plaintiffs mortgages. Additional facts will be discussed where relevant to the issues in this case.

I

The plaintiff claims that the court improperly applied the doctrine of equitable subrogation, thereby placing Ford’s mortgage in the first priority position above all of the plaintiffs mortgages. We disagree.

“Our standard of review is whether the trial court abused its discretion. A foreclosure action is an equitable proceeding. . . . The determination of what equity requires is a matter for the discretion of the trial court. ... In determining whether the trial court has abused its discretion, we must make every reasonable presumption in favor of the correctness of its action. . . . Our review of a trial court’s exercise of the legal discretion vested in it is limited to the questions of whether the trial court correctly applied the law and could reasonably have reached the conclusion that it did.” (Citations omitted; internal quotation marks omitted.) Citicorp Mortgage, Inc. v. Conant, 54 Conn. App. 529, 532, 736 A.2d 928, cert. denied, 251 Conn. 909, 739 A.2d 264 (1999).

“The object of [equitable] subrogation is the prevention of injustice.” (Internal quotation marks omitted.) Westchester Fire Ins. Co. v. Allstate Ins. Co., 236 Conn. 362, 371, 672 A.2d 939 (1996). The question in this case is whether, in equity and good conscience, Ford’s mortgage is entitled to priority over the plaintiffs mortgages to secure the benefit that the parties to the transaction agreed Ford should have. See Home Owners’ Loan Corp. v. Sears, Roebuck & Co., 123 Conn. 232, 239-40, 193 A. 769 (1937).

“In numerous cases it has been held that one who advances money to discharge a prior lien on real or personal property and takes a new mortgage as security is entitled to be subrogated to the rights under the prior lien against the holder of an intervening lien of which he was ignorant.” Id., 237. In this case, Ford advanced money to Williams, secured by a mortgage, and a portion of the funds was used to pay off the prior encumbrances on the property. In requiring the discharge of those loans, Ford believed that it had secured its loan with a first mortgage. It was ignorant, however, of the fact that the plaintiffs mortgages had not been released.

“The intention of the parties to the transaction is the controlling consideration.” Lomas & Nettleton Co. v. Isacs, 101 Conn. 614, 622, 127 A. 6 (1924). It was clear that Ford, by requiring the payoff of the prior encumbrances, bargained for and intended that its mortgage be a first mortgage on the property. See Independence One Mortgage Corp. v. Katsaros, 43 Conn. App. 71, 76, 681 A.2d 1005 (1996).

“Subrogation is a doctrine which equity borrowed from the civil law and administers so as to secure justice without regard to form or mere technicality. Story’s Eq. Juris. (Vol. 2, 14th Ed.) § 706, says: It is broad enough to include every instance in which one party pays a debt for which another is primarily answerable, and which, in equity and good conscience, should have been discharged by the latter. It is a legal fiction through which one who, not as a volunteer or in his own wrong and where there are no outstanding and superior equities, pays the debt of another, is substituted to all the rights and remedies of the other, and the debt is treated in equity as still existing for his benefit.” (Internal quotation marks omitted.) Home Owners’ Loan Corp. v. Sears, Roebuck & Co., supra, 123 Conn. 238.

The doctrine of equitable subrogation was designed to correct the exact situation presented in this case. The court found that “all of the [plaintiff’s] loans went into default almost immediately and there is scant evidence that the plaintiff did anything to collect on them until this action in 1996,” approximately six years after the defaults. If he had taken action on the loans, he would have had to list the M & T mortgage, the Bridgeport mortgage and the sewer hen as prior encumbrances on the property. It seemed clear to the court that the plaintiff did not want to acquire the property and have to pay off those encumbrances.

The court concluded that when the plaintiff discovered the existence of the forged releases and then learned that Ford had paid off all the prior encumbrances, he realized that he was in a first position over Ford and that the way was clear for him to acquire the property free of Ford’s mortgage or require Ford to pay him off in full.

The plaintiff claims that he was harmed because he was left with two unpaid mortgage loans when the court placed Ford in the first position. The court concluded, however, that it appeared from the payment history that the plaintiff knew that Williams could not make payments on any of the loans.

The plaintiffs reliance on Independence One Mortgage Corp. v. Katsaros, supra, 43 Conn. App. 71, to defeat Ford’s claim for priority is misplaced. In that case, eleven of twelve prior encumbrances were released at a real estate closing when a new mortgage was executed in favor of the plaintiff. Id., 72. One recorded prior encumbrance was not released. Id. In those circumstances, the doctrine was not applicable. Id., 75-76.

In the present case, because Ford believed that the plaintiffs mortgages had been released, it paid off all of the other prior encumbrances assuming that it had a first mortgage on the property. No injustice against the plaintiff resulted from the court’s application of the doctrine of equitable subrogation. Under these circumstances, we conclude that the court did not abuse its discretion in applying the doctrine of equitable subrogation.

II

Next, the plaintiff claims that even if Ford’s mortgage is given priority over his mortgages, the court improperly subordinated the entire balance of the plaintiffs mortgages to Ford’s mortgage. The plaintiff claims that Ford’s mortgage should have priority only to the extent of $73,009.58, the total amount paid to release the prior encumbrances. On the basis of the entire record, we cannot say that the court abused its discretion.

This is an equitable proceeding, and the court found that Ford’s mortgage should have the first priority position. Subsequent to issuance of the court’s memorandum of decision, the plaintiff filed a motion for articulation regarding the order of priorities established by the court. The court, Gormley, J., responded to the motion by ordering strict foreclosure in accordance with the memorandum of decision. The memorandum of decision, however, did not specifically state why the court determined that the plaintiffs mortgages should be subordinate to the entire balance of Ford’s mortgage. When the court issued its order in response to the plaintiffs motion for articulation, the plaintiff could have filed a motion for review pursuant to Practice Book § 66-7. The court did not explain its decision to subordinate the plaintiffs mortgages to the entire balance of Ford’s mortgage, and we are left to speculate as to its reasons for doing so. It is up to the appellant to provide a record adequate to review his claims. Practice Book § 61-10. In the absence of an adequate record, we cannot conclude that the court abused its discretion. See Silver v. Statewide Grievance Committee, 42 Conn. App. 229, 235, 679 A.2d 392 (1996), appeal dismissed, 242 Conn. 186, 699 A.2d 151 (1997).

Ill

Ford claims on its cross appeal that the court improperly failed to find that the plaintiffs conduct constituted a violation of CUTPA, as alleged in counts two through five of its counterclaim. We decline to review this claim.

“The burden of securing an adequate record for appellate review of an issue presented on a cross appeal rests with the cross appellant.” (Internal quotation marks omitted.) Wellington Systems, Inc. v. Redding Group, Inc., 49 Conn. App. 152, 180, 714 A.2d 21, cert. denied, 247 Conn. 905, 720 A.2d 516 (1998). In its brief, Ford refers to conduct that it claims amounted to a CUTPA violation. None of that conduct was found as fact by the court. In dealing with this counterclaim, the memorandum of decision simply stated that the defendants had failed to prove the facts they asserted to support any of their claims by the standard of proof required. Because there was no motion for articulation by Ford, we are left with an inadequate record for review. See Gladstone, Schwartz, Baroff & Blum v. Hovhannissian, 53 Conn. App. 122, 127, 728 A.2d 1140 (1999).

The judgment is affirmed.

In this opinion the other judges concurred.

       Ford and another defendant, Barbara Williams, filed counterclaims. Only Ford appealed from the judgment.

       Williams was a defendant at trial but did not appeal. Woodhouse also was a defendant, but because the power of attorney purportedly given by Woodhouse, by which her one-half interest in the property was mortgaged to the plaintiff, was a forgery, the court rendered judgment in her favor. The plaintiffs mortgages, therefore, pertain only to Williams’ one-half interest.

       Evans had no ownership interest in the property, and his relationship to the parties remains unclear.

       Williams filed an amended answer, special defenses and counterclaims (hat mirror the pleadings filed by Ford.

       The court in its memorandum of decision referred to the fourth special defense as the third special defense, but upon review of the special defenses, it is clear that equitable subrogation was raised in the fourth special defense.